Shepherd v. United States, 14105.

• Decision Date: 13 December 1954
• Docket Number: No. 14105.,14105.
• Citation: 217 F.2d 942
• Parties: Walter Leroy SHEPHERD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

217 F.2d 942 (1954)

Walter Leroy SHEPHERD, Appellant, v. UNITED STATES of America, Appellee.

No. 14105.

United States Court of Appeals, Ninth Circuit.

December 13, 1954.

John H. Brill, San Francisco, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant.

Lloyd H. Burke, U. S. Atty., Donald B. Constine, Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before STEPHENS, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

The appellant, who was classified by the appropriate Selective Service Board as available for induction under the provisions of Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., refused to submit to induction as required by that Act and in consequence was indicted and convicted of such refusal. Upon this appeal he asserts that the action of the Board in so classifying him was so illegal, arbitrary and capricious as to make his classification void and that in consequence he cannot be guilty of the offense charged.

Upon examining Shepherd's Selective Service questionnaire and the special form for conscientious objector that he had filed, the local board placed him in Class I-A thus making him liable for unlimited military service. Upon his receipt of notice of this classification he requested a personal appearance before the board and that was granted him. Upon this appearance he renewed his claim of exemption as a conscientious objector.¹

The board declined to change his classification and he appealed to the appeal board. His file was submitted to the Department of Justice for an investigation, hearing and recommendation. Under date of March 10, 1953, the Department of Justice by its special assistant to the Attorney General made a recommendation to the appeal board reciting that Shepherd had had a hearing before a hearing officer and, referring to what were evidently matters appearing in the investigative report furnished to the hearing officer, stated that some favorable and some less favorable reports had been procured respecting registrant's sincerity in claiming to be a conscientious objector. The report then proceeded as follows:

"The Hearing Officer was of the opinion that one of the registrant\'s motivating purposes in the practice of his religion is refraining from military service and recommended denial of the claim.

"Even if it is concluded that the registrant is a sincere Jehovah\'s Witness, he is nevertheless not entitled to exemption as a conscientious objector because the published position of the sect, (see "Why Jehovah\'s Witnesses Are Not Pacifists", the Watchtower, February 1, 1951) and the beliefs expressed by the registrant in his SSS Form No. 150 do not include opposition to war in any form within the meaning of the Act. The registrant stated that the Bible permits him to fight or even kill in limited circumstances. He indicates that he is not a pacifist and that he will fight whenever he considers God commands him to do so. He also admits he will fight to defend his ministry, his brother Jehovah\'s Witnesses, his life and property.

"After consideration of the entire file and record, the Department of Justice finds that the registrant\'s objections to combatant and noncombatant service are not sustained. It is, therefore, recommended to your Board that registrant\'s claim for exemption from both combatant and noncombatant training and service be not sustained."

Thereafter and on March 30, 1953, the appeal board placed the registrant in Class I-A.

It is argued that the appeal board had no basis in fact for a denial of a classification exempting Shepherd as a conscientious objector. In particular, it is urged that the recommendation of the Department of Justice which stated in effect that registrant was not entitled to the claimed exemption regardless of whether he was or was not a sincere Jehovah's Witness, was wrong as a matter of law. This contention refers to the paragraphs above quoted which allude to the registrant's statement that the Bible permits him to fight or even kill in limited circumstances and that he will fight whenever he considers God commands him to do so. It will be noted that the Department of Justice advised the appeal board that this position of Shepherd disclosed that his beliefs did not include opposition to war in any form within the meaning of the Act.²

In its decision in Hinkle v. United States, 9 Cir., 1954, 216 F.2d 8, this court held, following decisions in other circuits, that a belief in a right of self defense or in the righteousness of theocratic wars, did not necessarily negative a conscientious objection. We are of the opinion that here the statements made by the registrant to which the Department of Justice letter referred, were in substance no different than those made by Hinkle in the case cited. It follows that the advice thus given by the Department of Justice to the appeal board was in error just as we held in regard to Hinkle.

However, this case differs in an important particular from the Hinkle case where we pointed out that there was no suggestion of any sham or fakery on the part of Hinkle whose beliefs and views were admittedly sincere and genuine. Here it is to be noted the Department's recommendation of a denial of exemption was based upon a disbelief in Shepherd's honesty and sincerity as well as upon the legal conclusions that he could not be a conscientious objector because of his belief in self defense and in theocratic war.

The board was not bound to follow the recommendation of the Department of Justice under the applicable regulation Title 32, § 1626.25(c). The appeal board had before it the registrant's file disclosing that he had a personal appearance and hearing before the local board. The appeal board knew that following that appearance the local board denied the claim of exemption. In White v. United States, 9 Cir., 1954, 215 F.2d 782, we pointed out that in the determination of a registrant's beliefs and his sincerity therein, the best evidence on the question may well be his...