United States v. Capson, 8059.

• Decision Date: 02 July 1965
• Docket Number: No. 8059.,8059.
• Parties: UNITED STATES of America, Appellant, v. Craig A. CAPSON, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

347 F.2d 959 (1965)

UNITED STATES of America, Appellant, v. Craig A. CAPSON, Appellee.

No. 8059.

United States Court of Appeals Tenth Circuit.

July 2, 1965.

H. Ralph Klemm, Asst. U. S. Atty. (William T. Thurman, U. S. Atty., on the brief), for appellant.

Daniel L. Berman, Salt Lake City, Utah, for appellee.

Before PHILLIPS, LEWIS and HILL, United States Circuit Judges.

HILL, Circuit Judge.

Appellee, a Jehovah's Witness, was indicted for refusing to be inducted into the Armed Forces in violation of 50 App. U.S.C. § 462. He moved to dismiss the indictment upon two grounds: (1) That he was denied the assistance of counsel, as guaranteed by the VI Amendment, for the purpose of appealing his Selective Service Classification from his local draft board to the appeal board; and (2) that the notice of his right to appeal the classification which was given to him by his local board was inadequate and in violation of the statutes and regulations and contrary to the V Amendment. The motion was granted and the government has appealed here.

On April 11, 1960, shortly after Capson reached his eighteenth birthday, the local draft board furnished him with the usual form selective service classification questionnaire. Something over a month later he returned the questionnaire, filled out and signed, to the draft board. By his written answers to the various questions, he made the following material statements in substance: That he was a minister of religion and regularly serving as such; that he had been a minister since 1951 (at which time he would have been nine years old); that he was at that time formally ordained as a Minister of the Jehovah's Witnesses denomination; that he was pursuing a full-time course of instruction preparing for the ministry; was attending Theocratic Ministry School; and that his studies were under the direction of the Watchtower Bible and Tract Society. By other answers to the same questionnaire, he stated he had been employed for the past nine months doing night watchman and floor maintenance work as a regular or permanent paid employee and expected to continue indefinitely in this work.

He also requested that he be furnished with the conscientious objector's special form by signing as a conscientious objector. Upon receipt of this form, he filled it out, signed and returned it to the draft board, By his answers to the questions contained on this form he elaborated upon his work and activities as a member of the Jehovah's Witnesses denomination but made no reference or claim to being a minister of such denomination. He again listed his employment as building maintenance work, stated his conscientious opposition to war and claimed exemption from both combatant and noncombatant training and service in the Armed Forces. The draft board thereafter, upon the information before it, classified the registrant I-A-O, which is exemption from combatant service and training and was not the exemption claimed by the registrant.¹ The regular form for notification of classification was mailed to and received by Capson. By this notice the registrant was expressly advised of his right to appeal his classification.² On the reverse side of the card designated "Notice of Classification" the registrant was also advised to keep the same upon his person at all times and at the bottom, in bold black faced type is the further statement "For Advice, See Your Government Appeal Agent."

The Selective Service Regulations provide for an appeal agent, 32 C.F.R. § 1604.71, whose duties inter alia are to advise the board on legal matters and to appeal any classification of any registrant which he believes should be reviewed by the Appeal Board. The regulations further provide that he is to protect both the registrant's and the government's interests. The record here shows that appellant's draft board did have an appeal agent as provided for by law and regulation.

Appellee took no appeal to the Appeal Board, did not communicate to the local board any dissatisfaction with his classification or attempt to utilize the services of the Appeal Agent provided by the government. When ordered to appear at the induction station, he did so, but refused to be inducted, hence this prosecution.

Section 6(j) of the Universal Military Training and Service Act, 50 U.S.C. App. § 456(j), provides that no person who, "by reason of religious training and belief, is conscientiously opposed to participation in war in any form," shall be required to undergo combatant training or service in the Armed Forces. If on the basis of information the local board believes the registrant is sincere in his beliefs, it will classify him as conscientious objector in either I-A-O or I-O. If the board denies the claim, the registrant may appeal to the Appeal Board. In conscientious objector cases, the Appeal Board will forward the file to the Department of Justice where appellee may appear before a hearing officer and present witnesses. The Department of Justice will then make its recommendations to the Appeal Board. The Appeal Board then will make a decision which is the final determination of the Selective Service System, except where an appeal to the President is taken. 50 U.S.C. App. § 460(b) (3).

There is no direct judicial review of Selective Service Board's classification. Questions of classification may either be raised by way of habeas corpus or as a defense to a prosecution for failure to submit to induction as we have here. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). The review, however, under the latter method is strictly limited to the board's jurisdiction and may not be overturned unless the board's classification had no basis in fact. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). The courts in no event are to sit as super draft boards substituting their judgment on the evidence for that of the board's. Witmer v. United States, supra.

Appellee argues that due to this extremely narrow judicial review of Selective Service Board's determinations, the board's classification in this case was tantamount to a criminal prosecution and penal in character and hence necessitates the safeguard of the Sixth Amendment provision concerning an accused's right to counsel.³ He relies very strongly on Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). We find little difficulty in distinguishing the present matter from Mendoza-Martinez. That case involved a naturalized citizen who was born in Mexico. In 1942 he departed this country for Mexico admittedly to avoid serving in the Armed Forces. In 1947 he was convicted of violation of his service obligation and served a sentence of a year and a day. Five years later he was served with a warrant of arrest in a deportation procedure premised on Section 401(j) of the Nationality Act of 1940 which withdrew citizenship for leaving the country to avoid military service. Following a hearing, the Attorney General's special inquiry officer sustained the warrant and ordered Mendoza-Martinez be deported. The Court held Section 401(j) invalid because the deprivation of nationality was a punishment for the offense of leaving the country to avoid military service and that the procedure was done without the safeguards of the Fifth and Sixth Amendments. In determining whether an Act of Congress is regulatory or penal the court said at page 168, 83 S.Ct. at page 567:

"The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may

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