United States v. Abbott, 19816.

• Decision Date: 28 April 1970
• Docket Number: No. 19816.,19816.
• Citation: 425 F.2d 910
• Parties: UNITED STATES of America, Appellee, v. Stephen Eugene ABBOTT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

425 F.2d 910 (1970)

UNITED STATES of America, Appellee, v. Stephen Eugene ABBOTT, Appellant.

No. 19816.

United States Court of Appeals, Eighth Circuit.

April 28, 1970.

Peter E. Rindskopf, Atlanta, Ga., for appellant; Howard Moore, Jr., Atlanta, Ga., on the brief.

Duane L. Nelson, Asst. U. S. Atty., Omaha, Neb., for appellee; Richard A. Dier, U. S. Atty., and Edward S. Szukelewicz, Atty., Criminal Division, Dept. of Justice, Washington, D. C., on the brief.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

Stephen Abbott appeals his conviction under 50 U.S.C. App. § 462 arising out of his refusal to submit to induction into the armed forces of the United States.

On October 19, 1967, Abbott reported, as ordered, to the induction center in Atlanta, Georgia, but refused to take the symbolic step forward to be inducted. After indictment, his residence being originally in Lincoln, Nebraska, his case was transferred to the District of Nebraska pursuant to Fed.R.Crim.P. 21(b). He was there tried and found guilty by a jury. After motions for judgment of acquittal and new trial were overruled he appealed. The fundamental issue raised in this appeal¹ is whether there existed a basis-in-fact to deny the defendant-registrant's application for exemption as a conscientious objector under 50 U.S.C. App. § 456(j).

Upon review we find there was no basis-in-fact to support the board's I-A classification. We reverse and remand with directions to enter a judgment of acquittal.

Stephen Abbott, initially registered with Selective Service Board No. 58, Lancaster County, Lincoln, Nebraska, on February 7, 1962. On March 13, 1964, he was mailed a classification questionnaire, SSS Form 100. In completing that form, he informed the local board that he had had two years of college at the University of Nebraska and had completed two years of basic R.O.T.C. at the University. He left blank the portion of the questionnaire relating to an exemption as a conscientious objector. However, he stated that he was presently a student at Immaculate Conception Seminary in Conception, Missouri, studying for priesthood in the Catholic Church. On April 10, 1964, he was classified I-A. On May 13, 1964, upon receipt of a certificate of enrollment from the registrar at Immaculate Conception Seminary, his local board changed this classification to IV-D.

Abbott left the seminary in the summer of 1965 and enrolled at the University of Nebraska. The local board did not learn of his change of status until January 25, 1966, at which time he was sent a current information questionnaire. He then informed the board that he was attending the University and that he planned to receive his degree in August of 1966. On February 16, 1966, he was given a II-S student deferment effective until July 1, 1966. On July 1, 1966, Abbott requested a conscientious objector Form 150, which was mailed to him and subsequently returned. At that time he acknowledged belief in a Supreme Being and set forth his opposition to the use of force and war. His written statement² alleges opposition to war based upon Christian religious precepts sufficient to meet the statutory criteria of a conscientious objector as defined under United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Cf. Packard v. Rollins, 422 F. 2d 525 (8 Cir. 1970). On July 14, 1966, he was ordered to report for his physical examination. On August 3, 1966, he was classified I-A by his local board. He appealed to the Iowa State Appeal Board. At this time he had assumed a teaching position in Clearfield, Iowa, following graduation from the University of Nebraska. On appeal, he was given a II-A classification (occupational deferment). On November 23, 1966, the registrant asked his local board for a personal appearance to present his conscientious objector claim. He appeared before them on January 24, 1967. At that time his application for a I-O classification was denied and he was once again classified as I-A. He again appealed. Upon appeal he was given a II-A deferment by reason of his teaching position. Within the above chronology, it should be noted that on March 2, 1967, Abbott wrote his board and expressed concern because his claim for conscientious objection had not been ruled upon.³ The local board answered that the appeal board had given him "the lowest possible classification" he was entitled to, and that he could renew his request for a I-O classification at a later date. On June 15, 1967, he was again reclassified I-A by his local board. On this appeal to the Nebraska State Appeal Board this classification was not changed.

The selective service file does not reveal the grounds upon which Abbott's conscientious objector claim was rejected. The appeal board's classification of Abbott as I-A was, of course, a de novo review. 32 C.F.R. § 1626.26(a) (Supp.1969). See United States v. Hesse, 417 F.2d 141, 143 (8 Cir.1969); Vaughn v. United States, 404 F.2d 586, 592 (8 Cir.1968); DeRemer v. United States, 340 F.2d 712, 719 (8 Cir.1965). Prior to the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j), an appeal board could utilize the personal interview by a hearing officer to assess a registrant's credibility. This provision has now been deleted from the act. See United States v. Hesse, supra. Since there is no longer an opportunity for the appeal board to personally interview the registrant, the appeal board's classification must rest solely upon objective facts within the selective service file itself. Witmer v. United States, 348 U.S. 375, 382, 75 S.Ct. 392, 99 L.Ed. 428 (1955); United States v. Hesse, supra; United States v. Haughton, 413 F. 2d 736 (9 Cir.1969); United States v. Washington, 392 F.2d 37 (6 Cir.1968); United States v. St. Clair, 293 F.Supp. 337 (E.D.N.Y.1968). A local board may find that an applicant lacks sincerity in his beliefs because his demeanor demonstrates a shiftiness or evasive attitude which would substantiate unreliability. Witmer v. United States, supra 348 U.S. at 382, 75 S.Ct. 392. However, this cannot serve as a basis-in-fact for an appeal board to reject a conscientious objector claim unless there exists some disclosure of this finding of unreliability by the local board on the applicant's selective service record.⁴ Whether there exists a basis-in-fact for the appeal board's classification presents a question for the court, and is not an issue for the jury to hear evidence upon and consider. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947).⁵

We turn then to the defendant's selective service file to see if there is any basis-in-fact to support a I-A classification by the appeal board. Witmer v. United States, supra; Batterton v. United States, supra; United States v. Washington, supra; Parrott v. United States, 370 F.2d 388 (9 Cir.1966).

As we understand the government's argument, the combination of three factors in Abbott's file demonstrates his lack of sincerity: (1) the fact that Abbott belatedly applied for a conscientious objector status and at a time when his induction was imminent; (2) the fact that Abbott applied for other deferments (IV-D, II-S and II-A) and (3) the fact that Abbott's pacifism did not result wholly from his Catholic training, but rather in substantial part from a philosophical basis which included opposition only to selective wars.

The government relies upon Bishop v. United States, 412 F.2d 1064 (9 Cir. 1969), and United States v. Pritchard, 413 F.2d 663 (4 Cir.1969), as authority for the proposition that a registrant's late filing, as well as his prior application for other deferments provide a basis-in-fact for a finding of insincerity. See also Witmer v. United States, supra; United States v. Henderson, 411 F.2d 224 (5 Cir.1969); and Salamy v. United States, 379 F.2d 838 (10 Cir.1967). These cases, however, each involve some additional inconsistency within the selective service file which served to complement the registrant's late filing in order to contradict a claim of conscientious objector status. For example, in Bishop v. United States, supra, the applicant himself had claimed that his beliefs had existed since 1959 even though he did not file his request until 1965. Furthermore, several residents of Bishop's neighborhood had cast doubt upon the sincerity of his religious beliefs, suggesting that Bishop was raising his religion as a "front" to evade the draft. Also, Bishop demonstrated only the vaguest understanding of his religious beliefs. As explained in United States v. Haughton, supra, in Witmer v. United States, supra, there existed inconsistent statements which contradicted the conscientious objector claim. In United States v. Henderson, supra, the court placed emphasis upon the defendant's lack of church activities.

In Salamy v. United States, supra, the Tenth Circuit emphasized that the registrant originally and specifically disclaimed being a conscientious objector and sought a deferment on hardship grounds. Salamy's appearance and demeanor were also considered as affecting his claim. United States v. Pritchard, supra, may be similarly distinguished.

This line of cases has recently been distinguished by the Second Circuit in United States v. Bornemann, 424 F.2d 1343 (2 Cir.1970). As pointed out by the Bornemann case, in these cases there was a substantial period of time where the presentation of a conscientious objector claim "might have resulted in the registrant being placed in a different classification." However, when a registrant makes application at the time when his beliefs become "relevant" to his classification, then lateness of the claim cannot affect the registrant's sincerity. Abbott's earlier presentation of his conscientious objector's claim, like Bornemann's, would not have resulted in his being classified as a conscientious objector since he was entitled to a deferment on the basis of a lower classification on other grounds.

In the...