United States v. Fraser, CR 69-364 PHX.

• Decision Date: 12 June 1970
• Docket Number: No. CR 69-364 PHX.,CR 69-364 PHX.
• Citation: 314 F. Supp. 1262
• Parties: UNITED STATES of America, Plaintiff, v. Brian FRASER, Defendant.
• Court: U.S. District Court — District of Arizona

314 F. Supp. 1262

UNITED STATES of America, Plaintiff, v. Brian FRASER, Defendant.

No. CR 69-364 PHX.

United States District Court, D. Arizona.

June 12, 1970.

Richard K. Burke, U. S. Atty., District of Arizona, Phoenix, Ariz., by Joseph S. Jenckes, V, Asst. U. S. Atty., for plaintiff.

Tom Karas, Federal Defender, Phoenix, Ariz., for defendant.

OPINION AND ORDER

MUECKE, District Judge.

Defendant is indicted for failure to submit to induction in violation of 50 U.S.C. App. § 462. Counsel for defendant and for the Government, at trial, stipulated to the admission into evidence of defendant's Selective Service file, and stipulated that it is complete. Unless otherwise noted, the facts set forth in this opinion are drawn from that file.

The facts are: Defendant is presently twenty-two years old. Upon attaining his eighteenth birthday, he registered with his Local Board as required by law. Defendant, upon registering, was initially classified II-S on August 18, 1965. Except for a brief period during early 1967, not here material, he retained that classification until November 13, 1968 when he was reclassified I-A by the Local Board.

Defendant, in a note received by the Board on September 30, 1968, informed the Board that he was "not enrolled that semester" at Arizona State University. Defendant was sent a current information questionnaire (SSS Form 127) which he completed and returned to the Board on November 5, 1968. Based upon the answers therein, defendant, on November 13, 1968 was, as noted supra, reclassified I-A.

The Board on December 4, 1968 was notified by postcard that he had on November 23, 1968 "been ordained as a minister for the Jehovah's Witnesses religion." A letter received by the Board on December 12, 1968 (set out in full in Appendix A) requested an appeal, set forth defendant's views, and concluded: "* * * I ask that you reclassify me IV-D, so that this urgent work of salvation may continue. Whatever your decision however, I will not serve the Devil with you under any circumstances." Defendant was thereupon mailed a Selective Service Form 150 which he did not complete but returned to the Board with a cover letter saying: "As stated in my letter of December 11, 1968, I am applying for a IV-D classification, not a I-A-O or I-O. The form you have mistakenly sent me is for a I-A-O or I-O classification only, and therefore I am returning it to you. Please send me whatever form is necessary to apply for classification of IV-D." The Board then mailed him instructions on how to apply for a IV-D ministerial exemption. In response, he furnished the Board with a current information questionnaire, letters from his church overseer and himself, and the record of his baptism in the Jehovah's Witness sect. On March 12, 1969 defendant was again classified I-A by the Local Board. On April 10, 1969 he wrote the Board a letter (set forth in full in Appendix B) requesting an appeal and setting forth in considerable detail his religious views. In response to that letter, which was defendant's only communication with his Local Board between March 12, 1969 and May 14, 1969, the Board on the latter date, decided not to reopen his classification and forwarded his file to the Appeal Board. Following his unsuccessful appeal, defendant was ordered to report for induction. For the failure to take the symbolic step forward, defendant is indicted.

The Government contends that (1) because defendant never made a "claim" for a conscientious objector exemption, the I-A classification underlying the order to report for induction is valid, and (2) if there was a basis in fact for the I-A classification given him by the Board on March 12, 1969, confirmed by the Board on May 14, 1969, and affirmed by the Appeal Board on June 10, 1969, he is guilty of violating 50 U.S.C. App. § 462 as charged in the indictment.

Defendant, on the other hand, contends: (1) the I-A classification was arbitrary and without basis in fact; (2) his Selective Service file indicates that he placed himself "prima facie within the statutory exemptions" I-O or I-A-O, and was entitled to consideration for, and classification in, the same; and (3) the Local Board's failure to include in his Selective Service file the reasons for not considering, or granting him a I-O or I-A-O classification, renders his I-A classification invalid. Consequently, the order to report for induction was invalid and his failure to take the required step forward and be inducted into the Armed Forces does not constitute a violation of the laws of the United States.

To obtain a conviction it is incumbent upon the United States to prove the validity of the induction order, Franks v. United States, 216 F.2d 266 (9th Cir. 1954), because defendant could not be required to submit to induction under a void classification. Pine v. United States, 212 F.2d 93 (4th Cir. 1954). Invalidity of the induction order is a defense to a criminal prosecution. United States v. Milliken, 416 F.2d 676 (9th Cir. 1969).

The scope of judicial review in Selective Service cases is extremely narrow. "It is not for the courts to sit as super draft boards substituting their judgments on the weight of the evidence for those of the designated agencies." Witmer v. United States, 348 U.S. 375 at 380, 75 S.Ct. 392 at 395, 99 L.Ed. 428 at 433 (1955). The classification can only be overturned if it has no basis in fact. Witmer v. United States, supra; Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946).

We turn first to the Government's contention that defendant, to be considered for either I-O or I-A-O status, must make a "claim" therefor. We recognize that the burden is upon the registrant to claim and establish the right to exemption and that an exemption may be waived or abandoned. Pickens v. Cox, 282 F.2d 784 (10th Cir. 1960). The relevant statute provides:

Nothing contained in this title sections 451, 453, 454, 455, 456 and 458-471 of this Appendix shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term "religious training and belief" does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title, sections 451, 453, 454, 455, 456 and 458-471 of this Appendix, be assigned to non-combatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4 (b) section 454(b) of this Appendix such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate and any such person who knowingly fails or neglects to obey any such order from his local board shall be deemed, for the purposes of section 12 of this title section 462 of this Appendix, to have knowingly failed or neglected to perform a duty required of him under this title sections 451, 453, 454, 455, 456 and 458-471 of this Appendix. 50 U.S.C. App. § 456(j) (emphasis added).

In addition, the regulations provide:

A registrant who claims to be a conscientious objector shall offer information in substantiation of his claim on a Special Form for Conscientious Objector (SSS Form No. 150) which, when filed, shall become a part of his Classification Questionnaire (SSS Form No. 100). The local board, upon request, shall furnish to any person claiming to be a conscientious objector a copy of such Special Form for Conscientious Objector (SSS Form No. 150). 32 C.F.R. § 1621.11 (emphasis added).

The Government points to no Selective Service statute, regulation, or case which defines the term "claim." Similarly, we are unable to find such a definition. "Claim" is not defined in 50 U.S.C. App. § 466, which contains other definitions. Nor is it defined in 32 C.F.R. Part 1602.

Opposed to the above language, which on its face would appear to make the filing of a Form 150 a prerequisite to I-O and I-A-O consideration, is Local Board Memorandum No. 41, issued by the Director on November 30, 1951, as amended July 30, 1968, which provides, inter alia:

2. What Constitutes a Claim of Conscientious Objection.—A registrant should be considered to have claimed conscientious objection to war if he has signed Series VIII of the Classification Questionnaire (SSS Form 100), if he has filed a Special Form for Conscientious Objector (SSS Form 150), or if he has filed any other written statement claiming that he is a conscientious objector.

3. Consideration of C.O. Claims by Local Boards.—(a) The local board will make every effort to secure a completed Special Form for Conscientious Objector (SSS Form 150) from each registrant who signed Series VIII of the Classification Questionnaire (SSS Form 100) or who has filed a written statement claiming he is a conscientious objector. However, the absence of an SSS Form 150 does not preclude consideration of all the other evidence in the cover sheet to support the claim.

(b) If, upon consideration of this evidence, the local board determines that it cannot grant the I-A-O or I-O classification claimed, the local board should invite or request registrant to meet with it for an interview prior to classification. The primary purpose of the interview will be to develop further facts on which the conscientious obj

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