Steele v. United States, 5137.

• Decision Date: 21 December 1956
• Docket Number: No. 5137.,5137.
• Parties: Stanley Oliver STEELE, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

240 F.2d 142 (1956)

Stanley Oliver STEELE, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 5137.

United States Court of Appeals First Circuit.

Heard October 3, 1956.

Decided December 21, 1956.

Hayden C. Covington, Brooklyn, N. Y., with whom Clarence P. Kudisch and Arthur Jaffe, Boston, Mass., were on the brief, for appellant.

Thomas P. O'Connor, Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., Boston, Mass., was on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The appellant was indicted by a grand jury in the court below for failure to report to his local draft board for assignment to civilian work contributing to the maintenance of the national health, safety or interest, in violation of § 12 (a) of the Selective Service Act of 1948, 62 Stat. 622, 50 U.S.C.A.Appendix, § 462 (a). He pleaded not guilty and waived his right to trial by jury. At the close of the evidence introduced at the trial he filed a motion for judgment of acquittal, which the court took under advisement, and after filing an opinion denied. The court then found the appellant guilty as charged and entered judgment sentencing him to imprisonment for the term of one year. He thereupon took this appeal.

The appellant registered with his local draft board early in 1951 and the board sent him a classification questionnaire, SSS Form 100. He filled out this form and returned it, indicating therein that he was unmarried, that he was employed full time as a turret lathe operator, and that he was conscientiously opposed to participation in war in any form. He did not claim to be a minister or student preparing for the ministry. Upon receipt of this questionnaire the local board sent the appellant a Special Form for Conscientious Objector (SSS Form 150), which he completed and returned. On this form he indicated that he was affiliated with the sect known as Jehovah's Witnesses, and that because of his religious training and belief he was conscientiously opposed not only to participation in war but also to non-combatant training and service in the armed forces. And he signed a statement on the form to the effect that he realized that by taking that stand he might subject himself to 24 consecutive months' service at "such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate." He also indicated on the form that he had been a member of the cadet corps when in high school and that although he definitely did not believe in the use of weapons, nevertheless, if he should find himself in a position where he had to protect himself, he "instinctively would do so."

The local board gave the appellant a hearing for the purpose of determining whether he was entitled to classification as a conscientious objector and following the hearing rejected his claim and classified him I-A, i. e. as available for general military service. The appellant was notified of this action, he appealed, and on January 25, 1952, the Appeal Board, considering the entire file, classified him I-A-O, that is, as a conscientious objector but one available for induction into the armed forces for non-combatant training and service. The appellant was promptly notified of this action and three months later, in April, 1952, he submitted himself on orders of his local board to a physical examination. He was found mentally and physically acceptable for military service, was so notified under date of May 1, 1952, and on January 16, 1953, he was mailed an order to report for induction on February 20, 1953. On receipt of this order he wrote the board that he would not report for induction as ordered. The board acknowledged receipt of this letter and requested the appellant to appear for a hearing on January 29. He did so, and at that hearing he told the board that he had been going to meetings of Jehovah's Witnesses for about three years, and that recently he had been doing work as a minister by preaching during the day to fellow employees and also preaching on Saturdays and Sundays whenever he found time. Wherefore he contended that he was entitled now to the ministerial classification of IV-D which would exempt him from service of any kind, civil or military. The local board rejected his claim and told him that he had "no alternative but to report for induction" as ordered, whereupon he wrote a letter of protest to the State Director of Selective Service.

The next official action occurred on February 18, when the local board by order of the State Director of Selective Service postponed the appellant's induction to permit review of the entire file for the purpose of considering his claim for exemption as a minister of religion. The local board gave the appellant a hearing on this claim on April 15, 1953. At that hearing the principal matter under consideration was his ministerial activities but it is clear that he took occasion then to tell the local board for the first time that he had married and that his wife was pregnant. The appellant testified that he made this disclosure in support of a claim for a dependency deferment and that he asked the board for that reason either to classify him in III-A under parenthood deferment or else in IV-D as a minister of religion, whichever classification it thought most appropriate for his situation. One of the members of the local board, however, testified that when the factor of a pregnant wife was introduced, he strongly urged the appellant to submit proof in the form of a medical certificate so that classification in III-A would automatically follow, but that the appellant refused to do so, saying: "I do not want a deferment on marriage, I want it based on my being a minister."¹

Following this hearing, the local board, rejecting the appellant's claim for classification in IV-D as a minister of religion, put him in I-O, the classification appropriate for registrants who objected to any military service either as a combatant or as a non-combatant. The appellant, when notified of this action, wrote a letter to his board protesting this classification and the board gave him a fourth hearing on April 29, 1953. At this hearing the appellant again pressed for the ministerial exemption and in fact stated that if he did not receive it and remained I-O he would refuse to obey an order to report for assignment to civilian work. Thereupon the board classified him I-A as available for general military service. Upon notice of this action he wrote a letter to the Appeal Board, sending a copy to his local board, in which he primarily pressed his arguments for a IV-D classification but nevertheless made reference to his family responsibilities. He wrote: "In my particular case I am married and my wife is pregnant. In order to provide the necessities of life for my wife and myself it is necessary that I work five days a week." On May 12, 1953, the appellant's file was forwarded once more to the Appeal Board, but it was not until December 11 of that year that it voted unanimously to classify him in I-O.

During this interval, while the appellant was pressing for a IV-D classification, § 1622.30 of the Selective Service Regulations was amended by Executive Order No. 10469 of July 11, effective July 15, 18 Fed.Reg. 4107, U.S.Code Congressional and Administrative News 1953, p. 1029, to provide that in order for a registrant to obtain III-A parenthood deferment classification formal proof of parenthood or wife's pregnancy must be submitted before August 25, 1953. There is no evidence that the board notified the appellant of this change in the Regulations or that it came to his attention in any other way. At any rate, the appellant apparently did not give up his attempt to obtain IV-D classification until early in 1954 when he began specifically to urge his claim for dependency deferment. When he did so, however, the local board rejected his claim as untimely and furthermore found that no severe financial hardship would be imposed upon him or his family were he required to do civilian work contributing to the national interest. It therefore ordered him to report for assignment to such work on August 30, 1954. He refused to obey this order and his indictment followed.

This foregoing statement of facts, although long, is not exhaustive. It is sufficient, however, to provide the basis for consideration of the only issue on this appeal which in our opinion requires discussion. That issue is whether the admitted failure to appoint advisors to registrants, and to post their names and addresses conspicuously in the local board office, as required by Selective Service Regulations § 1604.41(a), quoted in the margin as it read during the applicable period,² renders invalid the local board's order directing the appellant to report for assignment to civilian work and vitiates his conviction for failure to obey that order.

Certainly nothing in the Constitution requires that a registrant be provided with free advice and assistance either in preparing questionnaires and forms for submission to his local draft board or with respect to other matters relating to his liabilities under the selective service law. The appellant's right to aid in his dealings with the Selective Service System was conferred only by the Regulation cited and quoted above which, concededly, had the force of a statute. Thus the admitted failure to comply with the Regulation deprived the appellant of no right guaranteed to him by the Constitution. It is not, therefore, comparable to a refusal to permit one accused of crime in a federal court to have the assistance of counsel for his defense. The failure to appoint advisors and to post their names and addresses conspicuously in the local board's office constituted a breach of one of the rights conferred upon the appellant as a registrant only by legislative grace....