United States v. Brown, 71 CR 106.

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: Kenneth Jacobs, Villa Park, Ill., for defendant
• Citation: United States v. Brown, 338 F.Supp. 409 (N.D. Ill. 1972)
• Decision Date: 04 February 1972
• Docket Number: No. 71 CR 106.,71 CR 106.
• Parties: UNITED STATES of America, Plaintiff, v. Roy Hayden BROWN, Jr., Defendant.

338 F. Supp. 409

UNITED STATES of America, Plaintiff, v. Roy Hayden BROWN, Jr., Defendant.

No. 71 CR 106.

United States District Court, N. D. Illinois, E. D.

February 4, 1972.

Ted Scudder, Asst. U. S. Atty., Chicago, Ill., for plaintiff.

Kenneth Jacobs, Villa Park, Ill., for defendant.

MEMORANDUM OPINION

Motion For Judgment of Acquittal

MAROVITZ, District Judge.

Roy Hayden Brown, Jr. came before this Court for trial under Indictment No. 71 CR 106 charging him with failing to proceed to his civilian work assignment in lieu of Military Service, in violation of 50 App. U.S.C. § 462. We are now prepared to rule on the points raised in Defendant's Motion For Acquittal.

A short chronology of Defendant's Selective Service record is necessary in order to better understand his present position.

Defendant registered with his local draft board in December of 1966 after having reached the age of 18. In his questionnaire dated January 10, 1967 he indicated under "Occupation" that he was a lithographer working an average of 30 hours per week. He also indicated in Section VII of that same questionnaire that he was a minister of Jehovah's Witnesses though not formally ordained as such. As to the section dealing with conscientious objection, he wrote in "Does not apply". He was classified I-A. In a letter dated April 18, 1968 he wrote that his beliefs prevented him from participating in "any form or fashion" in military service and that he devoted a "large part" of his time to his religious activities. He subsequently filled out a Conscientious Objector Form dated April 22, 1968 wherein he detailed the reasons and origin of his beliefs. Among the comments made is:

"I am presently a congregation publisher. I have served as a vacation pioneer, regular pioneer, Bible Study Servant, and Assistant Ministry School Servant. My activities include extensive study, Bible presentations, field ministry, teaching home Bible studies, and attending five meetings weekly."

In addition, under "General Background" he indicated that he had been employed as a linotype operator from 1965 to the date the Form was filed. On May 20, 1968 he was reclassified I-A by the Local Board, a classification which he appealed. The Appeal Board reclassified him as a Conscientious Objector. Over the next year he was processed through the normal C-O channels and on January 6, 1970 he received notice to report to his Local Board on January 19, 1970 for instructions regarding his civilian work. After repeated efforts to come to an agreement as to a choice of civilian work, he was assigned to the Sherman Hospital in Elgin, Illinois. He failed to appear and was subsequently indicted.

The Defendant presents a multitude of reasons as the basis for his Motion of Acquittal. As to the following contentions suffice it to say that they are wholly without merit and we hereby deny the Motion as to them:

That the Government has failed to establish beyond a reasonable doubt every essential element of offense charged in the information;

That the Government has failed to establish and prove by competent evidence beyond a reasonable doubt the existence of the corpus delicti;

That the defendant was denied due process of law in that he was denied the right to be represented by legal counsel of his own choosing in all of the proceedings before the Selective Service Boards;

That the Government has failed to establish and prove by competent evidence beyond a reasonable doubt that the defendant, Roy Hayden Brown, Jr., did "knowingly and wilfully neglect, fail, and refuse to report to the Local Board Number 82" in violation of 50 App. U.S.C., Section 462, as charged in the Indictment.

That the defendant was denied his Sixth Amendment right to confront and cross-examine the witnesses against him;

That the Trial Court committed prejudicial error admitting the Selective Service file into evidence That a purported Civilian Work Order issued absent a formal declaration of war or national emergency by the United States Congress is in direct violation of the Thirteenth Amendment to the United States Constitution and, therefore, null and void.

Defendant does, however, present four contentions (the remainder of the grounds for the Motion not already denied are related to these issues) which warrant discussion. He argues that he presented a prima facie claim for ministerial status evidenced by the totality of his file and that there was no basis in fact for the denial of the status; that both the Local Board's and the Appeal Board's failure to state reasons for the denial of ministerial status was a denial of due process; that the Boards breached their duty to properly review Defendant's file given what appears to be the short amount of time spent on each file; and finally, that Defendant's Civilian Work Order was invalid since his random selection number was called out of sequence.

I.

The Military Selective Service Act 50 U.S.C. § 456(g) provides that "regular or duly ordained ministers ... shall be exempt from training and service ...". The Defendant, who indicated that he is not ordained, must therefore seek ministerial status as a "regular" minister. The definitional portion of the Selective Service Act, 50 U.S.C. § 466(g) (2) provides that:

"The term `regular minister of religion' means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained is a minister of religion, and who is recognized by such church, sect, or organization as a regular minister."

Furthermore, the ministry must be one's vocation rather than avocation as defined in 50 U.S.C. § 466(g) (3):

"The term `regular or duly ordained minister of religion' does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect, or organization."

The application of these provisions has always presented a particular problem in regard to members of Jehovah's Witnesses because the position of "minister" must be interpreted with due regard to its unique function in the milieu of that sect. In the broad sense of the word every baptized member of Jehovah's Witnesses is considered a "minister" in keeping with the doctrine of the "priesthood of all believers" and to treat a claim for ministerial exemption in the conventional sense of that term without inquiring into its particular use in the context of Jehovah's Witnesses would be to automatically exempt all members of the sect on the simple proof of membership. In addition, even using "minister" in the conventional sense Jehovah's Witnesses congregations usually have more than one individual who is considered a minister. Another difficulty prevalent in these cases though by no means limited to Jehovah's Witnesses alone, is the not uncommon practice of its members to work in secular occupations while at the same time engaging in religious pursuits. The vocation-avocation differentiation of 50 U.S.C. § 466(g) (3) thus becomes all the more difficult of ascertainment given the intertwinement of both secular and religious pursuits.

In order to determine a valid ministerial exemption for a member of Jehovah's Witnesses, two primary interrelated factors are generally taken into consideration: 1) The member's relative position in the organizational hierarchy of the sect and 2) the ratio in terms of time between the member's religious work and secular work. The higher one's position in the congregation and the lower the number of hours spent in secular work the more likely he is to be granted ministerial exemption. The lower one's position in the congregation and the greater the prominence of his secular work the more likely that he is a "member" of the congregation rather than a "minister".

Countless combinations of these two variables can obviously occur if the factors on either side are juggled. (See 1 A.L.R. Fed. 607 for a comprehensive article on the subject.) This equation, however, is by no means irrebuttable or absolute but it does cover the more obvious, clear-cut situations at either end of the spectrum. The first half of the equation, the structure of the congregation, must initially be mapped out in order to determine Defendant's position on that map. The Court in United States v. Tettenburn, 186 F.Supp. 203 (D.Md. 1960) clearly set out the congregational structure of Jehovah's Witnesses at 207, 208:

"Each congregation is headed by a Congregation Servant who is the presiding minister and overseer of all congregation activities. Under the Congregation Servant there are as many as seven Servants in Congregation. It is most important that the title `Servant in Congregation' be distinguished from `Congregation Servant'. There is but one Congregation Servant and he is the presiding minister. Among the Servants in Congregation are an Assistant Congregation Servant who takes oversight of the congregation in the absence of the Congregation Servant, and a Bible Study Servant who supervises the Bible study work and back-call activity of the congregation. The Congregation Servant, Assistant Congregation Servant, and Bible Study Servant comprise what is known as the Congregation Committee. This Committee makes recommendations as to the appointment of Servants and is active in fiscal and other matters. There are other Servants in Congregation; and in smaller congregations, one person may hold more than one position.

"Each congregation contains a number of Pioneer ministers, some of whom may hold positions

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