United States v. Hesse

• Decision Date: 22 October 1969
• Docket Number: No. 19574.,19574.
• Citation: 417 F.2d 141
• Parties: UNITED STATES of America, Appellee, v. Milton Carl HESSE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.2d 141 (1969)

UNITED STATES of America, Appellee, v. Milton Carl HESSE, Appellant.

No. 19574.

United States Court of Appeals Eighth Circuit.

October 22, 1969.

Louis Gilden, St. Louis, Mo., for appellant.

Daniel R. O'Neill, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., same address, on the brief.

Before VAN OOSTERHOUT, Chief Judge, and LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

This appeal arises from the defendant's conviction under 50 U.S.C.App. § 462 for failing to report for induction into the armed forces. Defendant basically claims he was (1) denied procedural due process in his reclassification from I-A-O to I-A, and (2) that there exists no basis-in-fact for his I-A classification. The district court denied defendant's motion for acquittal and found him guilty of the offense charged. 293 F.Supp. 991 (E.D. Mo. 1968). We hold that defendant's selective service file demonstrates no basis-in-fact for his reclassification to a I-A status. We reverse.

Defendant, at age 18, registered with his local board on April 13, 1964. At that time he filled out Selective Service Form 150 asserting that he was a conscientious objector. He stated that he was a member of the Radio Church of God and had become so when he first attended the church in New Athens, Illinois, on August 21, 1963. In his application he acknowledged the existence of a Supreme Being and because of his religious beliefs would refuse to use force or to kill. He wrote his beliefs in detail and premised them upon his religious teachings. He quoted from the church constitution which forbids the taking of human life. He quoted various scriptural passages.

Based upon this application, his local board classified him I-A-O (eligible for noncombatant military service). The defendant, seeking a I-O classification, appealed this ruling. Under the then existent Selective Service regulations, 32 C.F.R. § 1626.25 (1954), and statute, 50 U.S.C.App. § 456(j) (1951), the appeals board, while tentatively affirming his I-A-O classification, sought a Department of Justice investigation and recommendation. Following a standard procedure, a hearing officer conducted a personal interview of the defendant and made a written report to the Department. The F.B.I. investigated the defendant and a résumé of the investigation was made. On January 10, 1966, the Chief of the Conscientious Objector Section of the Department of Justice reported to the appeals board. He stated that the hearing officer concluded the registrant is not "conscientiously opposed to participate in combatant and noncombatant military training and service" and that "the résumé, on the whole, is consistent with the findings of the Hearing Officer." He then recommended that Hesse not be classified in Class I-O or in Class I-A-O. Nevertheless, the appeals board continued Hesse in Class I-A-O. The defendant was found physically fit and ordered to report for induction on May 31, 1966. He reported but refused to take the oath of induction. Thereafter, the United States attorney declined to prosecute since he was of the opinion that there was no basis-in-fact to support the I-A-O classification. He wrote the state director that the registrant was either I-A or I-O depending upon the sincerity of his convictions.

The state director, acting under 32 C.F.R. § 1625.3 (1969), requested the local board to reclassify the defendant. In a letter accompanying the request he called the board's attention to the Department of Justice recommendation that Hesse should not be in either Class I-O or I-A-O. On July 5, 1966, the local board reclassified Hesse as I-A. Hesse appealed.¹

Once again, the appeals board referred the matter to the Department of Justice for investigation and recommendation.² The same hearing officer who conducted the 1965 interview again conferred with the defendant. Another F.B.I. investigation was also made. On October 23, 1967, the same Department of Justice official who had authored the January 10, 1966, report, once again made the recommendation. The Department recommended on the basis of the hearing officer's interview and the résumé of the more recent F.B.I. investigation that Hesse had still not met his burden of showing that he was a conscientious objector. On December 4, 1967, the appeals board, presumably on the basis of the new investigation and recommendation, classified Hesse I-A. The defendant was once again ordered to report for induction, and once again refused. Prosecution and conviction ensued leading to this appeal.

The fundamental issue is whether there existed a basis-in-fact for the appeal board's I-A classification of December 4, 1967.

Since the appeals board determines the classification de novo (32 C.F.R. § 1626.26(a) (1969)), the only factors which could possibly have affected Hesse's classification was the 1967 investigative résumé and the Department of Justice's report and recommendation. We cannot accept defendant's contention that this résumé and recommendation could not be considered as additional facts related to classification. See United States v. Corliss, 173 F.Supp. 677 (S.D.N.Y. 1959), aff'd 280 F.2d 808 (2 Cir. 1960), distinguishing United States v. Stasevic, 117 F.Supp. 371 (S.D. N.Y. 1953). See also United States v. Nugent, supra; Simmons v. United States, supra; Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955); and Gonzales v. United States, supra.

However, this court is at a complete loss to understand the statements of the Department of Justice in both the 1965 and 1967 reports that the F.B.I. résumés "on the whole" are consistent with the hearing officer's finding that Hesse was insincere as to his conscientious objector claim.

We are mindful that our jurisdiction to review is a narrow one. Whether there exists basis-in-fact for the defendant's classification is both a subjective and objective test. The obligation of review in this circuit has been construed to discount mere disbelief of a conscientious objector's claim without affirmative evidence to measure contradiction. Batterton v. United States, 260 F.2d 233 (8 Cir. 1958). Additionally we recognize as Judge Friendly said in United States v. Corliss, 280 F.2d 808, 814 (2 Cir. 1960):

"That although denial of exemption may be and often is supported by objective facts inconsistent with the claim, denial may also rest on a disbelief in the sincerity of the claim, unaccompanied by any inconsistent facts, provided the disbelief is honest and rational. * * * to sustain the denial of a claim on a mere ipse dixit of lack of sincerity from the Local Board or the hearing officer would create serious possibilities of abuse."

Mere speculation or conjecture as to insincerity is not enough. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). Nor can basis-in-fact in this case rest upon Hesse's doubtful demeanor. The only personal interview of Hesse was by the hearing officer and he is the only one who could assess evasive demeanor as a ground of insincerity. However, the hearing officer did not rely upon this ground. Cf. Parr v. United States, 272 F.2d 416 (9 Cir. 1959); United States v. St. Clair, 293 F.Supp. 337 (E.D.N.Y. 1968) (per Weinstein, J., an excellent authoritative opinion). There exists evidence that Hesse was nervous before the hearing officer but this fact alone is not evidence of doubtful demeanor. However, if there exists any inconsistency or honest or rational disbelief with the defendant's claim, then it is not for this court to weigh the substantiality of these facts to find any basis-in-fact. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). Cf. Esteban v. Central Missouri State College, 415 F. 2d 1077 n. 3 at 1092 (8 Cir. 1969) (dissenting opinion). Nevertheless, where disbelief is said to exist, the appellate court, in each case, must examine the board's alleged basis-in-fact to see whether it has any "rational" and "honest" foundation. Cf. United States v. Corliss, 280 F.2d 808 (2 Cir. 1960).

The appeals board was silent as to its reasons for changing Hesse's classification to I-A. We can only assume, by reason of its changed position, that it felt justified to follow the second recommendation of the Department of Justice. The problem is, however, that the Justice Department's recommendation was based in part upon gross error. After reporting that the hearing officer concluded the defendant was not sincere, the recommendation reads: "The Department of Justice believes that the résumé, on the whole, is not inconsistent with the findings of the Hearing Officer." Examination of the résumé markedly demonstrates to the contrary.

The résumé reveals that the F.B.I. interviewed officials of two former employers, six officials (including three supervisors) of his then present employer, a friend, a fellow worker, a relative, four neighbors, a town marshall, church members, defendant's pastor and assistant pastor. This investigation was much more extensive than the one which the F.B.I. conducted in 1965, and entailed many hours of interviews in at least three different cities. There does not exist within the entire résumé one statement which reflects a flaw upon the sincerity of Hesse's beliefs. The investigation verifies Hesse's good behavior and repeatedly states his sincere attitude as being conscientiously opposed, for religious reasons, to military service. The résumé shows that he refused to work on Saturday because of its religious significance, that he had attended church conferences as far away as Georgia and Texas despite giving up his pay for several workdays, that he was active in church work and that he had professed his sincerity and beliefs to many persons. Significant was a supervisor's statement that:

"Registrant mentioned to him that he was a conscientious objector to the military service based on his religious beliefs. This reference stated that

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