United States v. Boardman, No. 7355.

• Citation: 419 F.2d 110
• Decision Date: 23 March 1970
• Docket Number: No. 7355.
• Parties: UNITED STATES of America, Appellee, v. Richard Mather BOARDMAN, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

419 F.2d 110 (1969)

UNITED STATES of America, Appellee, v. Richard Mather BOARDMAN, Defendant, Appellant.

No. 7355.

United States Court of Appeals First Circuit.

December 11, 1969.

Certiorari Denied March 23, 1970.

William M. Kunstler, New York City, and Crystal C. Lloyd, with whom John G. Brooks, Boston, Mass., was on brief, for appellant.

Stanislaw R. J. Suchecki, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied March 23, 1970. See 90 S.Ct. 1124.

COFFIN, Circuit Judge.

Defendant was convicted in the court below of failing to report for civilian work in the national interest in violation of 50 U.S.C. App. §§ 456(j), 462. Defendant concedes that he knowingly failed to obey an order of his local board, and that the order was issued in compliance with statute and regulations. His appeal raises issues concerning the free exercise of religion, the intent requisite for conviction of crime, and the division of function between judge and jury.

The record indicates that both defendant and the Selective Service System have behaved punctiliously. Defendant was originally classified II-S while an undergraduate at Antioch College. Upon graduation, his local board placed him in class I-O, the classification reserved for those conscientiously opposed to any form of military service. In the course of completing SSS Form 152 (Special Report for Class I-O Registrants), defendant indicated that his first choice for alternate service was the Chicago branch of the American Friends Service Committee. Defendant's local board replied that the Friends Service Committee was not an acceptable alternative to military service and advised defendant to apply for work in an approved program.

By that time, however, defendant had already begun work with the Committee as an adviser to draft registrants. Several months of negotiations concerning defendant's status ensued. Defendant terminated these negotiations by a letter to his local board in which he expressed his intent to refuse to cooperate any further with the Selective Service System. This step was prompted by defendant's belief that any system of conscription is unjust and that the practice of exempting conscientious objectors was merely a device for blunting the protests of those most vehemently opposed to militarism. Defendant's local board then ordered defendant to report for civilian work at Massachusetts General Hospital. Because of procedural irregularities, two further orders were issued, and twice more defendant refused to report. He was then indicted and convicted after a trial by jury.

On this appeal, defendant raises three objections: first, that the requirement of alternate service for conscientious objectors infringes the free exercise of religion; second, that the trial court erred in refusing to charge that the jury should consider defendant's motivation in deciding the issue of criminal intent; and finally, that the jury should have been expressly informed of its power to acquit defendant in spite of his admitted violation of the statute.

Defendant's First Amendment claim would have us make a substantial inroad on the existing law governing military service exemptions. We rehearse briefly what that law is. It has been repeatedly recognized that exemption for military service is a matter of Congressional grace rather than constitutional compulsion. United States v. Macintosh, 283 U.S. 605, 623, 51 S.Ct. 570, 75 L.Ed. 1302 (1931); In re Summers, 325 U.S. 561, 572-573, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945); Clay v. United States, 397 F.2d 901, 912 (5th Cir. 1968), vacated, 394 U.S. 310, 89 S.Ct. 1164, 22 L.Ed.2d 297 (1969), and cases cited. Since Congress can require everyone to submit to military discipline, the argument goes, it can also condition the grant of exemption on the performance of a less burdensome form of service. George v. United States, 196 F.2d 445, 450 (9th Cir.), cert. denied, 344 U.S. 843, 73 S. Ct. 58, 97 L.Ed. 656 (1952); Kramer v. United States, 147 F.2d 756, 760 (6th Cir.), cert. denied, 324 U.S. 878, 65 S. Ct. 1026, 89 L.Ed. 1429 (1945), and cases cited.

We need not decide whether to adopt this approach, however, for even if we assume that the First Amendment requires some form of exemption for those conscientiously opposed to military service, it does not follow that Congress must grant a total exemption. Congress has broad power to take all steps necessary and appropriate to raising and supporting an army. United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In exercising this power, Congress may legitimately require alternate service to alleviate the unfairness which results if conscientious objectors continue to enjoy the fruits of civilian life while their fellow citizens are conscripted for onerous and sometimes hazardous duty. Cf. Braunfeld v. Brown, 366 U.S. 599, 608, 609, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Congress may also require alternate service to avoid the difficulties implicit in granting a total exemption based on individual belief, such as the potential threat to the morale of the armed forces Howze v. United States, 272 F.2d 146, 148 (9th Cir. 1959), or the problem of distinguishing self-serving claims from beliefs which deserve the title "conscientious". Weightman v. United States, 142 F.2d 188, 191, 192 (1st Cir. 1944).

Defendant impliedly rejects this conventional wisdom. The First Amendment, he argues, protects religiously motivated conduct unless that conduct poses some substantial peril to the public health or safety. This stringent test, he maintains, should be applied even if the individual's objection is not to the conduct which the government seeks to compel, but to the national policy which that conduct promotes. Counsel for defendant made clear at oral argument that this principle would equally apply to one who refused to pay his income tax because of conscientious objections to the war in Vietnam.

Such a view of the First Amendment is, we think, overly solipsistic. The Constitution does not extend the same degree of protection to every manifestation of religious impulse. The strict standard which defendant invokes may be appropriate when the government seeks to regulate acts of worship,¹ or to compel conduct which violates a cardinal tenet of religious faith.² In this case, however, defendant has been ordered to work in a hospital, an employment in which he has already engaged without violence to his principles.³ Defendant objects not to the specific conduct which the government requires, but to cooperation with a system which he considers wicked. But, in the words of Mr. Justice Cardozo,

"Never in our history has the notion been accepted * * * that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in law or in morals, from regulation by the state. * * * A different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government." Hamilton v. Board of Regents, 293 U.S. 245, 267, 268, 55 S.Ct. 197, 206, 79 L.Ed. 343 (1934) (concurring).

Defendant nevertheless argues that even if the First Amendment does not immunize his conduct from regulation, at least the government should have the burden of showing that no less restrictive form of regulation could accomplish its purposes, citing Sherbert v. Verner, 374 U.S. at 407, 83 S.Ct. 1790. In Sherbert, however, the action of the state imposed a burden on the observance of the Sabbath, a practice which obviously is a cardinal element in the exercise of a religion. Moreover, in Sherbert, the state had made no effort to accommodate the religious practice in question. In this case, by contrast, Congress has deferred to the demands of conscience by requiring conscientious objectors to perform alternate service rather than submit to induction. Perhaps there are other ways in which Congress could have struck the balance between conscience and the needs of the Selective Service System, but at some point courts must defer to the Congressional judgment concerning what is necessary and appropriate. McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 4 L.Ed. 579 (1819). We think that point has been reached here.

Defendant's second attack focuses on the trial court's instructions concerning the mental element of the offense charged. The court told the jury that the term "willfully" as used in the indictment meant that the defendant acted with knowledge that his conduct was prohibited by law and with specific intent to violate the law. The court then distinguished "motive" and "intent":

"Motive is that which tempts, induces or moves a person to commit a crime. Intent is the purpose or mental state with which the person does the act. Now, members of the jury, motive, no matter how laudable or praiseworthy that motive may be, cannot negative a specificate intent to commit a crime. * * * Where a person has a specific intent to bring about a result which the law seeks to prevent, what induces him to act, his motive, is immaterial."

In keeping with this instruction, the trial court rebuffed all attempts by defense counsel to demonstrate defendant's good moral character or to explore the reasonableness of defendant's beliefs concerning the draft and the war in Vietnam.

Defendant criticizes these rulings on the ground that the term "willfully" as used in the indictment includes not only an intent to violate the statute, but also a venal or ignoble motive. Two arguments...