United States v. Gonzales, Cr. No. 33712.

• Decision Date: 22 September 1953
• Docket Number: Cr. No. 33712.
• Parties: UNITED STATES v. GONZALES.
• Court: U.S. District Court — Western District of Michigan

120 F. Supp. 730

UNITED STATES v. GONZALES.

Cr. No. 33712.

United States District Court E. D. Michigan, S. D.

September 22, 1953.

Fred W. Kaess, U. S. Atty., Ronald L. Greenberg, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Leithauser & Grossbart, Detroit, Mich., Hayden C. Covington, Brooklyn, N. Y., of counsel, for defendant.

KOSCINSKI, District Judge.

Defendant was tried by the court without a jury on a charge of violating Sec. 462(b), Title 50 U.S.C.A.Appendix, by failing to submit to induction into the armed forces. Throughout these proceedings he was represented by counsel. A waiver of trial by jury is on file.

Information in defendant's Selective Service file discloses that he registered with his local draft Board on January 4, 1950. In his Classification Questionnaire he indicated that he was a conscientious objector and also claimed exemption as a minister of Jehovah's Witnesses. Form SSS 150, the Special Form for Conscientious Objectors was furnished to him by the Board and was filled out and filed by defendant. The Local Board classified him III-A from which classification he appealed but the same class was assigned to him by the Appeal Board. Nine months later he was reclassified I-A, whereupon he requested and was granted a personal appearance before the Local Board, but this Board again classified him I-A and he again appealed. The Appeal Board reviewed his file and determined that he should not be classified in either a class lower than I-O (the class in which are placed conscientious objectors opposed to both combatant and non-combatant training and service) or in Class I-O and, as required by Regulations governing claims of conscientious objectors, the Selective Service file of this registrant was referred to the Department of Justice for an investigation and hearing before a hearing officer on the character and good faith of his conscientious objector claim and for an advisory recommendation. The Department of Justice, after the investigation and hearing, recommended to the Appeal Board that defendant's claims for exemption from both combatant and non-combatant service be not sustained. The Appeal Board, by a vote of 3-0, gave defendant a classification of I-A. He then requested the State Director of the Selective Service to withhold notice of induction until his file could be reviewed by that office but was informed that all procedural rights permitted under the law were granted to him and no further right of appeal existed, also that facts contained in the file afforded no basis for that headquarters to intercede in the normal processing of the case.

After a physical examination defendant was found acceptable for military service and a notice to appear for induction on February 19, 1953, was mailed to him. He appeared at the induction center but refused to submit to induction on the ground of religious training. This prosecution followed.

At the conclusion of the Government's case defendant moved for a judgment of acquittal. Decision on the motion was reserved.

One of the grounds for the motion is that the Government failed to prove a violation of the Selective Service Act and Regulations by defendant, as charged in the indictment. The duty to report for induction in accordance with the draft board's order includes the duty to submit to induction, and breach of such duty is a crime as defined by Sec. 462, Title 50 U.S.C.A.Appendix, making criminal a willful failure to perform any duty required of a registrant. See Estep v. U. S., 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. In a prosecution for violation of an induction order proof by the Government that a defendant had been processed and ordered to report for induction, that he appeared for induction but refused to submit to induction, establishes the Government's case, putting the defendant to his defense. This showing was made by the Government and, unless the defendant established a valid defense, he is guilty of the offense with which he is charged.

The duty to classify registrants under the Selective Service Act and to grant or deny exemptions rests solely upon the draft boards, local and appellate. Decisions of local boards are made final under the law. This means that Congress chose not to give administrative action under the Act the customary scope of judicial review which obtains under statutes and that the court does not weigh the evidence to determine whether the classification made by the local boards was justified. Their decisions are final, if made in conformity with the regulations, even though they may be erroneous. The question of jurisdiction of the local boards is reached only if there is no basis in fact for the classification which it gave registrant. Estep v. U. S., supra. Defendant charges, in his motion, that the classification he received was arbitrary and capricious and without basis in fact and that, in so classifying him, the local and appeal boards proceeded in violation of Regulations promulgated under the Selective Service Act.

Defendant was baptized as a Jehovah's Witness one and one-half months after his registration with the local draft board. Prior to his affiliation with this sect he was a Catholic, in which religion he was reared by his parents, together with his five sisters and a brother. His entire family still professes that faith. In September, 1948, defendant married a woman who had been a Jehovah's Witness for many years but he seemed to evince no interest in the sect after his marriage until just prior to or shortly after his registration. In SSS Form 150 he claims that he joined Jehovah's Witnesses in December, 1949. He was baptized in that religion on February 19, 1950, a month and half after his registration, and claims the status of a minister from that date. In his Special Conscientious Objector Form he gave the religion of both his parents as Catholic; he described his activity with the sect since December, 1949, and his recognition as a pioneer in October, 1950, as the actions and behavior in his life which in his opinion most conspicuously demonstrate the consistency and depth of his religious convictions and, other than that, he answers that he has given no public expression, written or oral, to the views expressed in this special form as the basis of his claim for exemption. On the occasion of his personal appearance before the Local Board he testified that no ordination certificate was issued to him but that he had a Pioneer Assignment card and had some prescribed duties as a pioneer, being the advertising servant of the downtown unit, taking care of all the advertising duties; that they have some 2000 magazines which he takes care of each month, to see that they are distributed and if any more are needed; that his group meets every Thursday and sometimes "talks are handed to him" that he should make and at other times he conducts Bible studies with different people in various homes of members. From the time he first made claim for exemption he was employed on a full-time basis with the Great Lakes Steel Corporation which, according to his own admissions, manufactures some articles of war. He also testified before the Local Board that Jehovah's Witnesses had no creed or official statement directly relating to war but that this is a matter for each one to determine according to his own conscience; that there are some Jehovah's Witnesses who have joined the army and navy but did so according to the dictates of their own conscience.

In support of defendant's claims as a minister of Jehovah's Witnesses he submitted to the Local Board an affidavit, dated April 1, 1951, signed by a number of Jehovah's Witnesses, testifying to the fact that they observed him performing the duties of a minister for the past one and one-half years and that they recognized him as a minister, but, even if his own statement that he became a Jehovah's Witness in December, 1949, be accepted as true, he was not a Jehovah's Witness eighteen months prior to the date on which the affidavit was signed, April 1, 1951.

Under the facts disclosed by defendant's Selective Service file it is the considered opinion of this court that the classification of I-A assigned by the local and appellate boards to the defendant was not without basis in fact. Such decisions relative to his classification are, therefore, final unless such Boards, in reaching their decisions, proceeded in violation of the Act or Regulations.

A violation of the Regulations in several respects is charged. Defendant contends that on the occasion of his personal appearance before the Local Board its members made up their minds not to reconsider defendant's claims de novo but only heard him with the intention of giving him the same classification so that he could appeal; that he was not given a de novo classification, as required by Regulations; that the Board members were prejudiced and discriminated against him because of his membership in Jehovah's Witnesses; that the draft Board denied him his claim for classification as a conscientious objector because he had pressed his claim for exemption as a minister of religion before the Selective Service System. There is nothing in the evidence to substantiate these charges.

Another ground for acquittal contained in the motion is that the Local Board deprived defendant of procedural rights to a full and fair hearing before the Appeal Board by failing to make an adequate and full written memorandum of the new additional oral evidence given by defendant upon the occasion of his personal appearance, which new and additional oral evidence does not otherwise appear in the written papers sent to the Appeal Board. The facts reveal that on the occasion of the personal appearance before the Local Board...