United States v. Crocker

• Citation: 435 F.2d 601
• Decision Date: 04 January 1971
• Docket Number: 20363.,No. 20301,20301
• Parties: UNITED STATES of America, Appellee, v. John Philip CROCKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

435 F.2d 601 (1971)

UNITED STATES of America, Appellee, v. John Philip CROCKER, Appellant.

Nos. 20301, 20363.

United States Court of Appeals, Eighth Circuit.

January 4, 1971.

Kenneth E. Tilsen, Atty., Minnesota Civil Liberties Union, affiliate of the American Civil Liberties Union, St. Paul, Minn., for appellant; Lynn Castner, Minneapolis, Minn., of counsel.

Robert G. Renner, U. S. Atty., Thorwald Anderson, Jr., Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This is a consolidated appeal from two separate orders of the District Court. The first appeal, No. 20,301, is from judgment of March 30, 1970, convicting defendant Crocker on a charge of refusing to present himself and submit to registration under the Military Service Act of 1967, 50 App. U.S.C. § 453. Imposition of sentence was suspended. Defendant was placed on probation for three years. The appeal in No. 20,363 is from the order of May 28, 1970, revoking probation and imposing a three-year sentence. The appeals will be treated separately.

Appeal from Conviction.

Defendant's conviction followed a trial to the court without a jury. Defendant based his defense upon the freedom of religion provision of the First Amendment. There is no dispute as to the material facts. Defendant is a birthright Quaker and an Associate Member of the Society of Friends. He did not present himself for selective service registration but wrote his draft board a letter informing the board he could not register because of his religious belief. His sincerity is not questioned.

Chief Judge Devitt, who tried this case, fairly states the facts and the controlling law in a well-considered opinion, 308 F.Supp. 998, filed February 11, 1970. We agree with Judge Devitt's determination that religious conviction does not constitute a defense to the crime of failure to register for the draft. We affirm the conviction on the basis of Judge Devitt's well-reasoned opinion.

Appeal from Order Revoking Probation and Imposing Sentence.

Defendant in his second appeal, No. 20,363, urges that the court erred in revoking his probation and in imposing a three-year sentence. His appeal is based upon the following grounds:

1. The hearing was fatally defective in that defendant was not advised of the grounds upon which the revocation was based.

2. The court erred in finding defendant violated the terms of his probation.

3. The court abused its discretion in revoking probation.

The first point requires no extended discussion. The defendant acknowledges that he knew he was brought before the court because he did not register for the draft. He was so advised by his probation officer. Defendant was afforded a hearing at which he was represented by counsel. The failure to register is the only violation which was urged at the hearing and is the only violation found by the court. Thus no possible prejudice resulted to the defendant by reason of the failure to give him more formal notice as to the nature of the charge upon which the revocation proceedings were based.

Points two and three are closely related and will be considered together. Defendant has consistently at all times on sincere religious grounds refused to register for the draft. This is the offense upon which his conviction was based.

The probation officer in an early interview advised the defendant that registration for the draft was an express condition of his probation and that if he did not register the probation would be revoked. The officer offered to give defendant time to consider registration. Defendant replied no time was necessary, that he did not intend to register. The failure to register was reported to the court and a probation violation warrant was issued and served, and an evidentiary hearing was held. The court's finding upon which the revocation is based reads:

"Whereupon the Court heard evidence and argument of counsel, and

"Finds that on April 9, 1970, defendant was directed to register with his proper Selective Service local board by United States Probation Officer Abas at the United States Probation Office in this district during an interview held for the purpose of informing defendant of his rules of probation; and further finds that defendant did not and has not registered with any Selective Service local board as directed, * * *"

Upon the basis of such finding, the court revoked probation and imposed a sentence of three-years imprisonment.

The revocation is based exclusively upon the finding that defendant had failed to obey the probation officer's order that he register. The court makes no finding that it imposed registration as a condition to probation at the time of entry of the probation order nor that it subsequently expressly authorized or ratified the imposition of such condition by the probation officer.

The probation order reads:

"It Is Adjudged that the imposition of sentence is hereby suspended and the defendant is placed on probation for a period of three (3) years, with the provision that he shall obtain work of national importance, at the direction of the Probation Office, in the field of health, education and welfare for a period of 24 months.

"It Is Further Ordered that during the period of probation the defendant shall conduct himself as a law-abiding, industrious citizen and observe such conditions of probation as the Court may prescribe. Otherwise the defendant may be brought before the court for a violation of the court\'s orders."

Such order cannot reasonably be interpreted as imposing the registration condition. There is no evidence that the court ever subsequently prescribed the registration condition.

The undisputed evidence shows that the defendant was at all times willing to fully comply with the prescribed condition that he accept work of national importance at the direction of the probation office for a period of twenty-four months and that he is guilty of no probation violation aside from the controversial draft registration requirement. The work provision appears to be designed more as punishment than a means of rehabilitation. It parallels the treatment given to conscientious objectors by the selective service laws.

Moreover, at all times here material it appears obvious that defendant would refuse to register for the draft for religious reasons. If at...