United States v. Deere
| Decision Date | 06 July 1970 |
| Docket Number | Docket 33896.,No. 805,805 |
| Parties | UNITED STATES of America, Appellee, v. John Edward DEERE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul V. French, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., Northern District of New York, Syracuse, N. Y., of counsel), for appellee.
Robert G. Leyden, Albany, N. Y., for defendant-appellant.
Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.
John Edward Deere, who claimed to be a conscientious objector, appeals from his conviction by Chief Judge Foley in the District Court for the Northern District of New York, sitting without a jury, for refusing to report to and submit to induction in the armed forces in violation of 50 U.S.C. App. § 462. The case is rendered difficult by its stark simplicity.
Deere, a resident of Parishville, a village in northern New York, registered with his draft board at Ogdensburg shortly after becoming 18 in February 1966. In his Classification Questionnaire he claimed to be a conscientious objector, requested Special Form 150 in order to apply for an exemption on that basis, and added that:
I do not believe in participating or taking any part of active duty or not active or having any connection with the Selective or Armed Services in any country, for I believe in the bible and the ten commandments, "Thou shalt not kill" and also it is no avail to me or any one else to fight or kill for the bible plainly states: "The meek shall inherit the earth." Psalms 37:9-11, 29.
In the Form 150 he responded to the direction to "describe the nature of your belief which is the basis of your conscientious objector claim" by writing "My reason is: `Gods way is love.'" Citing the teachings of the Watchtower and Bible Tract Society of New York, Inc. (Jehovah's Witnesses) as the source of his belief, he noted that "I am not an active member but believe the way they do." He also stated that "I do not believe in force to the extent of killing, for in the ten Commandments it states — `Thou shall not kill'"1 and that he had demonstrated his convictions when faced with "a choice of right or wrong," but elaborated no further.
Following an interview before the Local Board on May 15, 1966, he was classified 1-A by a 5-0 vote, and appealed. A summary of the interview states, under the rubric "Information in cover sheet that registrant believes Local Board overlooked or to which it failed to give sufficient weight":2
Classes himself as a C.O. not an active member of any religious. Wouldn\'t do any work to serve his military duty. Doesn\'t believe in any force especially killing. Follows the bible the 10 com. Thou shall not kill. Staying at home not working.
The Local Board, after receiving a negative response from Jehovah's Witnesses to its inquiry whether Deere was a member, again reviewed his file and on July 26 advised him that his "case did not warrant re-opening and reclassification."
The Appeal Board, having tentatively determined that Deere should not be accorded conscientious objector status, forwarded his file to the Department of Justice in accordance with then controlling procedures. The Department made an extensive inquiry about Deere, the results of which were embodied in a résumé dated February 28, 1967. This disclosed that Deere had a poor and disturbed record in the considerable number of schools in various parts of the country he had attended, had rarely been employed, and spent a good deal of time playing pool at a Parishville soda bar. One teacher thought he was serious in saying that war was against his religion; another thought the opposite but conceded lack of familiarity with Deere's religious beliefs. Deere's widowed mother stated that she and her husband were active members of Jehovah's Witnesses, that her children had been instructed in the Witnesses' teachings, but that her son had never been an active member. He had told her he did not "believe in fighting or serving in the armed forces, as the Bible teaches `Thou shalt not kill.'" The most damaging item in the résumé was the report that:
As far as the registrant\'s sincerity in regard to his religion, she feels "he has forgotten all he learned about church."
One of Deere's brothers had served in the United States Army for four years and had signed up for two more; another had successfully asserted conscientious objection and was working in a hospital. Deere's sister vouched for his sincerity. The other evidence was equivocal.
Deere was furnished a copy of the résumé and given an opportunity to be heard, of which he did not avail himself. In October 1967, the Department of Justice advised the Appeal Board of its conclusion that Deere had not sustained the burden of bringing himself within the exempted class in the face of the apparently adverse impression he had made upon the Local Board. The Appeal Board forwarded the Department's recommendation and the résumé to Deere and gave him 30 days in which to reply. When he failed to do so, the Appeal Board classified him 1-A by a 4-0 vote. He refused to report for induction.
Having been indicted, Deere elected a bench trial. The only witnesses were the secretary of the Local Board, who attested various records but knew nothing of the Board's deliberations, and the defendant. Deere's testimony did not differ essentially from what has been recounted. He conceded he had not engaged in the Witnesses' activities of distributing pamphlets but said he had attended meetings whenever he could. He admitted having received the résumé and the Department of Justice letter but claimed he had not read them. He did not think his mother "had the right to comment about what I knew or what I didn't know"; in any event that was "her conception." Acknowledging the case to be difficult, the judge thought the portion of the résumé about Deere's church attendance and the Local Board's observation of his demeanor and attitude afforded a sufficient "basis in fact" for the 1-A classification by the Appeal Board.3
This is not a case like Dickinson v. United States, 346 U.S. 389, 397, 74 S.Ct. 152, 158, 98 L.Ed. 132 (1953), on which Deere relies, where "objective facts" about the registrant's behavior supported his claim to a ministerial exemption and the Court held that under such circumstances "dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Selective Service Act and foreign to our concepts of justice." Rather, as in Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955), the issue is the registrant's state of mind and there are no "objective facts" to support the claim. But here the Government lacks the aid it had in Witmer, 348 U.S. at 382-383, 75 S.Ct. 392, of inconsistent statements reflecting on the registrant's sincerity. Absent also are the long delay in asserting the claim and the other adverse factors that formed the basis for this court's decision in United States v. Messinger, 413 F.2d 927, 932 (2 Cir. 1969). While the grounds for Deere's conscientious objection were not stated with the eloquence often encountered and the strength...
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