U.S. v. Schmucker

• Decision Date: 06 May 1987
• Docket Number: No. 86-3742,86-3742
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Arden SCHMUCKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 413

815 F.2d 413

UNITED STATES of America, Plaintiff-Appellee, v. Mark Arden SCHMUCKER, Defendant-Appellant.

No. 86-3742.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 17, 1987.

Decided April 3, 1987.

Rehearing Denied May 6, 1987

William T. Whitaker, Elizabeth Reilly (argued) University of Akron, School of Law, Akron, Ohio, Dale A. Baich, Cleveland, Ohio, for defendant-appellant.

Gary D. Arbeznik, Joseph P. Schmitz (argued), Asst. U.S. Attys., Cleveland, Ohio, for plaintiff-appellee.

Before MERRITT, WELLFORD and MILBURN, Circuit Judges.

MILBURN, Circuit Judge.

Defendant-appellant Mark Arden Schmucker appeals his conviction for willfully failing to register with the Selective Service System in violation of 50 U.S.C.App. Secs. 453, 462. Defendant's principal arguments are that requiring him to register impermissibly burdened his rights under the free exercise clause of the First Amendment, and that he was entitled to discovery and an evidentiary hearing on his claim that he was selectively prosecuted on the basis of his religious beliefs. Finding defendant's arguments without merit, we affirm.

I. FACTS

President Carter initiated registration by issuing Presidential Proclamation 4771 on July 2, 1980. Male persons residing in the United States who were born in the calendar year 1960 were required to register with the Selective Service during the period of July 21 through July 26, 1980. Two weeks after the expiration of this period, defendant, who was born on October 4, 1960, mailed to the Selective Service a letter advising the government of his intention to "avoid participation in the conscription process by not registering." Defendant acknowledged that he had violated the law, stating that his "Christian faith" compelled him not to register or "participate, in any manner, with the Armed Forces."

On January 7, 1982, President Reagan announced the institution of a national grace period which permitted individuals who had failed to comply with the registration requirement to register without fear of criminal prosecution. Defendant declined to avail himself of this opportunity, and, on June 22, 1982, defendant was interviewed by the Federal Bureau of Investigation. Defendant intimated that he had refused to comply with the registration requirement for religious reasons and that, in not registering with the Selective Service, "he would cause the United States Government to be delayed in mobilizing their armed forces since they would have to take some time to handle his particular case."

One week after this interview, Assistant United States Attorney Gary D. Arbeznik unsuccessfully urged defendant to reconsider his decision to resist registration. Mr. Arbeznik sought authority from the Department of Justice to decline prosecution primarily because defendant was a Mennonite seminary student. The Department of Justice refused to decline prosecution, explaining that religious beliefs could not be a reason either for prosecution or refusing to do so. The case was then presented to a federal grand jury which returned a one-count indictment charging that defendant knowingly and willfully failed to register in violation of 50 U.S.C.App. Secs. 453, 462.

Defendant moved to dismiss the indictment, claiming that he and seven other nonregistrants had been unfairly singled out for prosecution because they expressed their opposition to the registration requirement. In support of his motion, defendant submitted affidavits from five indicted nonregistrants, all of whom indicated that they had written to the Selective Service prior to the time of their indictment to voice their objection to the resumption of draft registration. In response, the government submitted affidavits from individuals who had helped devise or implement the government's so-called "passive enforcement" policy under which the government selected for prosecution only those who reported themselves or were reported by others as having violated the registration requirement. The district court rejected defendant's claim of selective prosecution without holding an evidentiary hearing, finding that defendant had failed to present any evidence which tended to show that he was singled out for prosecution on the basis of impermissible considerations.

At trial, defendant was permitted to testify at length, and without restriction, concerning his reasons for his refusal to comply with the registration requirement. Defendant acknowledged that "he knew he was breaking the law," explaining that his refusal to register was a product of his religious beliefs. "[B]y registering I am facilitating the efficient mobilization of our Armed Forces, and I can't say that I feel it's right for me to help our country in any way prepare for war and for the killing and the destruction that war entails." Defendant made it clear that his religious beliefs precluded him from registering and thereafter seeking classification as a conscientious objector because even this limited acquiescence would "make the system operate more smoothly and more efficiently, thus allow [sic] the country to prepare for war more easily." While defendant was permitted to explain the religious basis for his refusal to register, the district court excluded the testimony of other defense witnesses concerning defendant's religious motivation. The district court also instructed the jury that defendant's motive "was immaterial except insofar as evidence of motive may aid determination of state of mind or intent. One may not commit a crime and be excused from criminal liability because he desired or expected that ultimate good would result from his criminal act." The jury returned a verdict of guilty, and defendant was sentenced to three years probation on the condition that he perform two years of community service.

On prior appeal, this court reversed defendant's conviction and remanded the case to the district court for "a full evidentiary hearing on [defendant's] claim that the federal government selectively prosecuted him because of his opposition to registration based on his exercise of First Amendment rights." United States v. Schmucker, 721 F.2d 1046, 1052 (6th Cir.1983). This court, however, declined to reach the other assignments of error advanced by defendant, electing to retain jurisdiction over the remaining issues pending the outcome of the evidentiary hearing. Following the denial of its petition for rehearing, the government petitioned the Supreme Court for a writ of certiorari. While the government's petition was pending, the Court, in Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), considered and rejected a selective prosecution claim similar to that advanced by defendant. The Court then vacated this court's judgment and remanded the matter to this court for "further consideration" in light of the Wayte decision. United States v. Schmucker, 471 U.S. 1001, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985). This court, in turn, remanded the case to the district court for reconsideration in light of the Supreme Court's decision in Wayte. United States v. Schmucker, 766 F.2d 1582 (6th Cir.1985).

On remand, defendant renewed his request for discovery and an evidentiary hearing on his claim of selective prosecution. Defendant reiterated his original contention that he was singled out for prosecution because of his express objections to the registration requirement. In addition, defendant asserted that he was singled out for prosecution "at least partially because of his Mennonite beliefs." The district court denied defendant's request, finding that the evidence presented failed to establish a prima facie case of selective prosecution or raise a reasonable doubt as to the government's purpose in bringing criminal charges.

Defendant filed the instant appeal and moved to consolidate this appeal with his prior appeal. By order of November 7, 1986, this court granted defendant's motion to consolidate the two appeals.

II. CONSTITUTIONAL CHALLENGES

A. Free Exercise Clause

Defendant argues that the requirement of Selective Service registration impermissibly burdens his rights under the free exercise clause of the First Amendment. In analyzing defendant's free exercise claim, we must weigh three factors: (1) the magnitude of the burden upon defendant's exercise of religion: (2) the existence of a compelling state interest justifying that burden; and (3) the extent to which accommodation of defendant would impede the state's objectives. United States v. Lee, 455 U.S. 252, 256-60, 102 S.Ct. 1051, 1054-56, 71 L.Ed.2d 127 (1982); Johnson v. Robison, 415 U.S. 361, 384-85, 94 S.Ct. 1160, 1174, 39 L.Ed.2d 389 (1974); Gillette v. United States, 401 U.S. 437, 461-62, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971). "[T]he balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity." Grosz v. Miami Beach, 721 F.2d 729, 734 (11th Cir.1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984).

While defendant objects to war and participation in military service on religious grounds, the burden of registration upon defendant's exercise of religion is minimal. "Registration requires no training, service or combat" and "is physically (and arguably morally) less intrusive than the draft itself." Detenber v. Turnage, 701 F.2d 233, 234 (1st Cir.1983); see also United States v. Bertram, 477 F.2d 1329, 1330 (10th Cir.1973) (registration "does not infringe or curtail religious freedom"); United States v. Koehn, 457 F.2d 1332, 1334 (10th Cir.1972) (defendant failed to "demonstrate how his religious beliefs [were] prejudiced or compromised by the single act of registration"); Garman v. United States Postal Service, 509 F.Supp. 507, 509 (N.D.Ind.1981) (registration " 'does not infringe or curtail religious freedom' ") (quoting Bertram, 477...