United States v. Griffin, 20010.

• Decision Date: 19 November 1970
• Docket Number: No. 20010.,20010.
• Citation: 434 F.2d 740
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lewis GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

434 F.2d 740 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lewis GRIFFIN, Defendant-Appellant.

No. 20010.

United States Court of Appeals, Sixth Circuit.

November 19, 1970.

Donald L. Stepner (court appointed), Covington, Ky., for appellant.

William D. Kirkland, Lexington, Ky., for appellee; Eugene E. Siler, Jr., U. S. Atty., James F. Cook, William D. Kirkland, Asst. U. S. Attys., Lexington, Ky., on brief.

Before PHILLIPS, Chief Judge, and McCREE and BROOKS, Circuit Judges.

PHILLIPS, Chief Judge.

Griffin, a member of Jehovah's witnesses, was granted conscientious objector status by his Selective Service Board. At a jury trial in the District Court he was convicted for failure to report as a conscientious objector for civilian service at a State hospital in lieu of military service, in violation of 50 U.S. C. App. § 462.

A prison sentence of five years was imposed by the District Judge. Griffin appeals.

The controlling question on appeal is whether Griffin was entitled to an exemption as a regular or duly ordained minister of religion under 50 U.S.C. App. § 456(g).

The record shows that Griffin has devoted a considerable amount of his time to the teaching of his religious faith by door-to-door evangelism and within the local Kingdom Hall. He testified that he spends approximately four hours a day in religious work and strives to dedicate 100 hours per month to this activity. Testifying on his own behalf, he described his work generally as follows:

"Well, we go out and talk to people, show them what the Bible has to say on certain subjects. We place Bible literature with them. If they show interest, we call back and we knock on doors, we do various forms of field ministry."

He further testified that he gives Bible lectures and talks on programs at his church. He also has assisted his local minister in some ministerial duties, but has not served on a regular basis as minister of his group or has not performed regularly the public rites of his faith. Although designated as an ordained minister of Jehovah's witnesses and rendering religious service with zeal and dedication, his activities are not shown to be those of a regular minister.

This Court therefore concludes that there is a basis of fact in the record for the denial of the claim for ministerial exemption by the local board and appeals board. Balderrama v. United States, 419 F.2d 1279 (5th Cir.), cert. denied, 397 U.S. 1068, 90 S.Ct. 1508, 25 L.Ed.2d 689; Robertson v. United States, 417 F.2d 440 (5th Cir., in banc); United States v. Tichenor, 403 F.2d 986 (6th Cir.).

The record demonstrates, as contended by Griffin, a lack of understanding of the relevant criteria for a ministerial exemption on the part of the members of the local board. This lack of understanding does not require reversal when the record demonstrates that both the local board and appeals board considered the claim for ministerial exemption and there is a basis in fact in the record to support the conclusion that Griffin is not a regular minister of religion.

Griffin complains that he was not furnished the proper forms for claiming a ministerial exemption. Nevertheless the record shows that the claim of ministerial status was presented to and considered by the local board and again on administrative appeal. Griffin gave the following description of the hearing before the local board:

"Well, I, took my Bible and I told them that I was a minister and what we did and what I did. They didn\'t want to let me read it to them from the Bible. So I quoted to them the Scriptures that shows our ministerial activity and I quoted to them our position and they told me their position."

He further testified that he made a similar personal appearance at the administrative hearing on his appeal which was conducted in Lexington, Kentucky.

We hold that the District Court did not commit reversible error in failing to grant Griffin a verdict of acquittal or in refusing to grant a continuance. All other contentions on the appeal have been considered and are found to be without merit. The judgment of conviction is affirmed.

This Court is concerned, however, with the severity of the sentence. At oral argument it was represented by the attorney for appellant that Griffin would obey an order from the District Judge to perform conscientious objector work in a civilian capacity, although his religious beliefs would not permit him to obey such an order by his Selective Service Board.

The case is remanded to the District Court to allow for the filing of a motion under Rule 35, Fed.R.Crim.P., for review of this sentence so that the District Court may consider suspending the sentence and granting probation on condition that Griffin perform the exact conscientious objector work under orders of the District Court which he has refused to perform under orders of the Selective Service Board. United States v. Daniels, 429 F.2d 1273 (6th Cir. July 30, 1970).

Affirmed and remanded.

BROOKS, Circuit Judge (concurring in the judgment).

I concur in the judgment reached in this case. I disagree, however, with the Court's conclusion that a "lack of understanding of the relevant criteria for a ministerial exemption does not require reversal when the record demonstrates that both the local board and appeals board considered the claim for ministerial exemption and there is a basis in fact in the record to support the conclusion. * * *" To so hold extends judicial review of Selective Service classifications beyond the statutory authorization and the case law of Robertson v. United States, 417 F.2d 440 (5th Cir. 1969), and United States v. Tichenor, 403 F.2d 986 (6th Cir. 1968). The statute 50 U. S.C. App. § 460(b) (3) relating to judicial review of criminal prosecutions under the Selective Service Act provides "that such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant." The cases are legion which hold that this provision permitting review "only when there is no basis in fact for the classification" mandates that courts have only an extremely narrow scope of review of classifications given registrants by the Selective Service Agencies.

The phrase "no basis in fact" as used in the statute has received judicial construction which has tended to expand the scope of court review of Selective Service classifications. Thus, while the phrase seems to connote that review of classifications is permitted only when there is no physical evidence to support a particular classification, see e. g., Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Maynard v. United States, 409 F.2d 505 (9th Cir. 1969); Petrie v. United States, 407 F.2d 267 (9th Cir. 1969); Pine v. United States, 212 F.2d 93 (4th Cir. 1954), it has been interpreted to permit review when the classification results from arbitrary or capricious conduct, Parrott v. United States, 370 F.2d 388 (9th Cir. 1966) or when basic concepts of due process or fairness have been violated, Niznik v. United States, 173 F.2d 328 (6th Cir. 1949); Vaughn v. United States, 404 F.2d 586 (8th Cir. 1968), or where Selective Service statutory regulations or procedures have not been properly followed, Robertson v. United States, supra; Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969), or where a classification has been based upon an erroneous view of the law, United States v. Tichenor, supra; Owens v. United States, 396 F.2d 540 (10th Cir. 1968); Gatchell v. United States, 378 F.2d 287 (9th Cir. 1967).

In the present case appellant seeks judicial review of his classification because an admittedly erroneous standard was used by the local board in considering whether he should have been granted a ministerial classification. When this defense is raised to a criminal prosecution for violation of the Selective Service Act, the law is that a conviction cannot be sustained if it is shown that both the local board and the state appeal board have applied an incorrect standard to deny a registrant a particular classification. See, Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955); United States v. Tichenor, supra; Owens v. United States, supra; Gatchell v. United States, supra. Under these circumstances, it is loosely said that there is "no basis in fact" for the classification, see Gatchell v. United States, supra, however, it would be more accurate to say that the conviction cannot be sustained because the law was incorrectly applied. The cases which have explored the application of the rule have involved situations where the local board applied an incorrect standard which affirmatively appeared in the registrant's file and upon review by the state appeal board, there apparently was no recognition of the error or correction of it, United States v. Tichenor, supra, or it clearly appeared from the record that the appeal board applied an incorrect standard in considering the classification, Sicurella v. United States, supra; Gatchell v. United States, supra.

The thrust of these authorities is to carve out an exception to the presumption that a state selective service board is required upon appeal to review de novo a registrant's request for a certain classification, see C.F.R. § 1.1626.26. Ordinarily, it is presumed that even though an erroneous standard is applied by a local board in denying a requested classification, the state appeal board will, by independently reviewing the registrant's file, apply the correct standard thereby curing the error, even if no change in the classification results. See United States v. Rose, 424 F.2d 1051 (6th Cir. 1970); Landau v. Allen, 424 F.2d 668 (6th Cir. 1970); DeRemer v. United States, 340 F.2d 712 (8th Cir. 1965); Tomlinson v. United States, 216 F.2d 12 (9th Cir. 1954). In the cases in point, this presumption was held not to exist where...