United States v. Corliss

• Decision Date: 22 July 1960
• Docket Number: Dockets 25706-25708.,No. 151-153,151-153
• Citation: 280 F.2d 808
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Secor CORLISS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fred August HEISE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter HEROLD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

280 F.2d 808 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Secor CORLISS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Fred August HEISE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Walter HEROLD, Defendant-Appellant.

Nos. 151-153, Dockets 25706-25708.

United States Court of Appeals Second Circuit.

Argued December 1, 1959.

Decided July 22, 1960.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, Brooklyn, N. Y. (Herman Adlerstein, New York City, on the brief), for defendant-appellants.

Robert E. Scher, Asst. U. S. Atty., New York City (S. Hazard Gillespie, Jr., U. S. Atty., and George I. Gordon, Asst. U. S. Atty., New York City, on the brief), for plaintiff-appellee.

Before CLARK, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

These are appeals from judgments of the District Court for the Southern District of New York convicting appellants, who claim to be conscientious objectors, of refusing to submit to induction into the armed forces of the United States, 50 U.S.C.A.Appendix § 462. Each appellant was sentenced for a year and a day. The facts are stated in Judge Murphy's reasoned opinion, 173 F.Supp. 677 (1959); we shall refer only to such as are required for disposition of the appeals.

All three cases followed the same general course — classification or reclassification of the registrant as I-A by the Local Board after personal appearance by the registrant; request for appeal; investigation by the Federal Bureau of Investigation; hearing before a hearing officer of the Department of Justice, with a résumé of the FBI report having previously been furnished; adverse report by the hearing officer to the Department; adverse recommendation by the Department to the Appeal Board; I-A classification by the Appeal Board; refusal of the registrant to be inducted; indictment, trial to the judge, and conviction. A point common to all three appeals was an order of the District Court, Alexander Bicks, J., quashing subpoenas whereby appellants sought production of the investigative reports of the FBI. Since the issue whether persons in appellants' position were entitled to discovery of such reports was pending before the Supreme Court in Gonzales v. United States, 80 S.Ct. 1554, decided June 27, 1960, we deferred decision pending resolution of that issue there.¹ Appellants do not claim the résumés were inaccurate, and the Department's recommendations were based on materials in appellants' Selective Service files, the hearing before the hearing officer, and, in a minor degree, uncontroverted facts in the résumés. The cases thus fall within the rule of non-production of the FBI investigative reports laid down in Gonzales and not within the exception, there stated, of "circumstances in a particular case where fairness in the proceeding might require production."

The principal questions remaining, indeed the only ones in Corliss' and Heise's appeals, are whether there is any basis in fact to sustain the Appeal Board's denials of appellants' claims that "by reason of religious training and belief" they are "conscientiously opposed to participation in war in any form," 50 U.S.C.A.Appendix § 456(j). Such an inquiry is not easy. For though "the state of a man's mind is as much a fact as the state of his digestion," Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (1885), it is a lot less susceptible of objective determination. In discharging this unenviable task, courts must be mindful that "The range of review is the narrowest known to the law," Blalock v. United States, 4 Cir., 1957, 247 F.2d 615, 619; that, apart from denial of procedural fairness, they may reverse the Appeal Board "only if there is no basis in fact for the classification which it gave the registrant," Estep v. United States, 1946, 327 U.S. 114, 122-123, 66 S.Ct. 423, 427, 90 L.Ed. 567; and that "any fact which casts doubt on the veracity of the registrant is relevant," Witmer v. United States, 1955, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428.

Heise

Under these rigorous tests Heise's conviction must be affirmed. Heise was born November 12, 1932. He had been brought up as a Lutheran. In his initial registration questionnaire, filed October 24, 1951, he did not claim to be a conscientious objector. He was classified I-A, thereafter found physically unqualified and classified IV-F until February 18, 1952, then reclassified I-A on February 19, 1953. He applied for a student deferment, which he received on April 1, 1953, valid until February 1, 1954; on February 4 he was reclassified I-A. On February 8, 1954 he requested "a deferment for at least another year in order to finish my studies" at New York Community College, and asked for a hearing. This was held on February 18, 1954; the Board voted 4-0 to classify Heise as I-A. Its summary, after referring to the request for a student deferment, adds "States that he has been taking bible course studies with Jehovah's Witness group since last August."; Heise's summary puts the two grounds in the opposite order. In any event, he asked for and received a conscientious objector form (SSS Form 150).

Heise returned the form on February 27. His letter of transmittal requested a reopening of his classification "because of new evidence that would affect my status. This new evidence could not be submitted earlier because my beliefs and convictions were different. Through Bible studies and associations with Jehovah's witnesses I now have conscientious and sincere objections to participating in combatant and non-combatant military service." There followed a several page description of the Witnesses, replete with scriptural and historical references, but rather silent as to Heise's personal beliefs save for a statement of his having been impressed by attendance at the Witnesses' assembly at the Yankee Stadium in July, 1953. The letter ended by enclosing a copy of the Watchtower magazine of February, 1951, and, promising "More evidence will be supplied to you in the near future." In answering the question on Form 150 where he had received the training and acquired the belief relied on for exemption, he stated he had been "Listening to radio station WBBR for over a year and associating with Jehovah's Witnesses," and "In August, 1952, I started to attend Bible studies and other meetings at Kingdom Hall, 526 86th St., beginning August, 1953." He stated, in answer to another question, that he had "also been preaching from door to door" but that he hadn't publicly expressed his views concerning non-participation in war. A letter from three Jehovah's Witnesses ministers attested that Heise had been regularly attending study and congregational meetings since August, 1953, and "has been actively expressing his status as one of Jehovah's Witnesses from the month of November, 1953." A hearing before the Local Board on March 25, 1954, revealed that Heise had been baptized as a Witness on March 13; again the Board voted 4-0 for I-A.

The only new fact of significance added by the FBI investigation was that Heise had told instructors at the Community College in November, 1953, that he was leaving school to commence studies for the ministry but changed his mind one day later in favor of completing his course. Before the hearing officer, although Heise asserted the religious basis of his conscientious objection to be the Bible, he "was unable to point out any passage of the Bible to sustain his beliefs and constantly referred to several pages of typewritten notes which he brought with him and which apparently were a copy of a letter sent to the Local Board under date of February 27, 1954." The hearing officer "was not favorably impressed as to the registrant's sincerity in making his claim."

It would seem that if Heise had, in fact, become a convinced conscientious objector in November, 1953, 32 C.F.R. § 1625.1(b), which we quote in the margin² required him promptly to advise the Local Board, see Williams v. United States, 9 Cir., 203 F.2d 85, 87-88, certiorari denied 1953, 345 U.S. 1003, 73 S.Ct. 1149, 97 L.Ed. 1408; United States v. Vincelli, 2 Cir., 1954, 215 F.2d 210, 213. Not only did he fail to do this, but his initial reaction to the I-A classification on February 4, 1954, was to request an extension of his student deferment on February 8 and again on February 18, and on February 27 he wrote the Local Board that the evidence as to his beliefs "could not be submitted earlier." The Board was thus warranted in concluding that Heise's conscientious objections had not ripened as late as February 8, even though Heise may have become interested in the Witnesses in a general way some time before. Something may, indeed, have happened to Heise between February 8 and February 18 or 27, but the Board was not bound to find it to be what Heise claimed. Sudden accessions of belief may be utterly sincere, as the memorable one on the Damascus road; but they seldom synchronize so perfectly as Heise's with external facts making them convenient, and they normally manifest themselves in expressions more deeply personal than his. The Appeal Board might likewise have regarded the concatenation of Heise's baptism and the second hearing as not wholly adventitious. There were thus sufficient "objective facts before the Appeal Board to * * * cast doubt on the sincerity of his claim." Witmer v. United States, supra, 348 U.S. at page 382, 75 S.Ct. at page 396; see United States v. Simmons, 7 Cir., 1954, 213 F.2d 901, 905-906, reversed on other grounds 1955, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453; Campbell v. United States, 4 Cir., 1955, 221 F.2d 454.

Corliss

Corliss' appeal presents a quite different case. Here there was no such belated conversion as in the cases of Heise or, as we shall see, of Herold. When Corliss filed his classification questionnaire on April 2, 1952, shortly after becoming 18, he claimed to be a conscientious objector and requested...