United States v. Irons

Decision Date30 November 1966
Docket NumberNo. 16674.,16674.
Citation369 F.2d 557
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Peter Hanlon IRONS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Morse Johnson, Cincinnati, Ohio (Thomas A. Luken, Cincinnati, Ohio, on the brief), for appellant.

Arnold Morelli, First Asst. U. S. Atty., Cincinnati, Ohio (Joseph P. Kinneary, U. S. Atty., Cincinnati, Ohio, on the brief), for appellee.

Before O'SULLIVAN and EDWARDS, Circuit Judges, and MATHES, Senior District Judge*.

MATHES, Senior District Judge.

Appellant waived trial by jury, and was tried and convicted by verdict of the District Judge of two violations of the Universal Military Training and Service Act, as charged in the indictment: (1) willful failure to "report for and submit to an Armed Forces Physical Examination", and (2) willful failure to "report for or submit to induction into the armed forces * * *"; all in violation of 50 U.S.C.App. § 462.

From the judgment and concurrent sentences imposed following his conviction, appellant appeals. Although he chooses various ways of saying it, the single ground upon which appellant rests his appeal is that "there was no basis in fact" for the I-A classification given him by the local draft board. See: 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, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946).

The relevant facts are not in dispute. Appellant was born in 1940. In September of 1958, he registered under the Selective Service Act with local board 55 in Cincinnati, Ohio. On July 27, 1961, appellant was classified 1-A by local board 55, and was notified by the board on August 14, 1961 of his 1-A classification, but intentionally failed to appeal.

On January 25, 1963, the local board sent to appellant a written order directing him to report for an Armed Forces physical examination on February 8, 1963, but appellant intentionally refused to report for or submit to a physical examination.

Instead of obeying, appellant sent a letter to the board stating inter alia:

"I have received the Order to Report for Armed Forces Physical Examination, and I must state my unwillingness to undertake such an examination.
In the past, I have outlined to you at great length my objections to the draft on logical grounds. But my objection also stems, and perhaps I have not made this clear, from moral and philosophical grounds. The Selective Service System has ruled that moral and philosophical exceptions to the system are not admissible grounds for exemption, but I believe this to be discriminatory and superficial."

On April 2, 1963, local board 55 sent to appellant a written order to report for and submit to induction into the armed forces of the United States on April 19, 1963, but appellant intentionally refused to report for or submit to induction as ordered.

In appellant's brief before us, he concedes that the record shows he "denounced the entire Selective Service System and reiterated his refusal to cooperate in any way with it. * * *"

Appellant now contends that the record made in his correspondence with the local board discloses that he should have been classified as a conscientious objector (1-O), because of the definition of "a Supreme Being", within the meaning of § 6(j) of the Act 50 U.S.C.App. § 456(j), (1958 ed.), which was formulated in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). As Mr. Justice Clark there observed for the Court: "The crux of the problem lies in the phrase `religious training and belief' which Congress has defined as `belief in a relation to a Supreme Being involving duties superior to those arising from any human relation'. * * * A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption * * *." See Goldfarb, Three Conscientious Objectors, 52 A.B.A.J. 564 (1966).

This is the test, and how appellant meets it is revealed by his entire correspondence with the local board, and especially by his last letter of May 17, 1963, wherein he declares: "I do not believe that I have any duties `superior to those arising from any human relation', since the entirety of my life involves human relationship."

Assuming that appellant could nonetheless qualify for the conscientious-objector classification (1-O) under the Seeger definition of "Supreme Being", he still confronts the fact that he emphatically waived any such classification by refusing to claim the exemption. See: United States v. Schoebel, 201 F. 2d 31, 32 (7th Cir. 1953); United States v. Rubinstein, 166 F.2d 249, 257-258 (2d Cir. 1948).

Not only did appellant spurn all administrative remedies available to him, including appeal cf. Maddox v. United States, 264 F.2d 243 (6th Cir. 1959); he also refused to report for, or submit to a physical examination. Conscientious objectors are not excused from a physical examination. Indeed, no registrant is, and for good reason. See Selective Service Regs. § 1628.11, 32 C.F.R. § 1628.11 (1965 Supp.). Even if improperly classified 1-A, there remains the possibility, unfortunately all too great in these times, that he will fail the physical examination and be reclassified as 4-F. Where that is the result, all constitutional and other problems incident to 1-A classification disappear of course, eo instanti. See: Falbo v. United States, 320 U.S. 549, 553, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Moore v. United States, 302 F.2d 929 (9th Cir. 1962); United States v. Balogh, 160 F.2d 999 (2d Cir. 1947).

The same policy requires every registrant to report for induction as ordered, even though he may have valid legal grounds for refusing to submit to induction. Cf.: Estep v. United States, supra, 327 U.S. 114, 66 S.Ct. 423; Williams v. United States, 203 F.2d 85, 88 (9th Cir. 1953).

The most that can be said, then, in response to appellant's appeal here is that he is admittedly guilty of refusing to report for and submit to a physical examination, as charged in count one; and it is equally clear that he is guilty of refusing to report for induction, as charged in count two of the indictment. However, we need not reach the point of decision as to count two, since the sentences imposed on both counts run concurrently. See: United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Emspak v. United States, 349 U.S. 190, 195, 75 S.Ct. 687, 99 L.Ed. 997 (1955); Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929).

The judgment of the District Court is affirmed.

O'SULLIVAN, Circuit Judge (concurring).

I concur in Judge Mathes' opinion. It is a correct and adequate disposition of the appeal before us, but in view of the dissent of Judge Edwards I feel it appropriate to add the following observations.

The dissent assumes that Irons' refusal to comply with the requests of his draft board was prompted by a belief that he would not be accorded a conscientious objector status. I do not so read the record. He persistently refused to seek conscientious objector status. That his resistance was not entirely the product of an unwillingness to accept "a Supreme Being" is portrayed by his trial testimony.

"Q. In other words, your objection was not just to the supreme being clause of the selective service statute? Your objection was to the whole system of selective service as regards compelled duty of any sort; isn\'t that correct, during that period of time?
"A. Yes."

The District Judge, who tried this case without a jury, made Findings of Fact, two of which are as follows:

"4. The defendant Irons did not claim for himself a classification of conscientious objector in his letters (which were placed in evidence) to the Board because such letters expressly rejected any such classification.
"5. The statements and information in defendant Irons\' letters (which were placed in evidence) to the Board did not constitute a claim for a classification of conscientious objector, even if such statements had been made on the forms of the Selective Service System, because said letters expressly rejected any such a classification."

The evidence amply supports such findings. In 1958, appellant Irons registered with his Draft Board without claiming exemption whatsoever; ever since that year, through his final refusal to report for induction, he was careful to insist that he was not making, and would not make, application for conscientious objector status. The following extracts from communications which he addressed to his Draft Board are illustrative. In 1960 upon returning his draft card to his Board, he stated:

"* * * I have formulated what to me is a philosophy of life which enables me in good conscience to decide, on the basis of my deeply held moral convictions, that any cooperation with a system that recognizes the possibility of war is repugnant and incompatible with that philosophy." (Emphasis added.)

On December 21, 1960, in refusing a duplicate draft card, he said,

"I have thought long about applying for 1-O a conscientious objector classification involving certain kinds of civilian, non-combatant duty classification, but this would tacitly assume that I recognize the validity of your jurisdiction."

On March 16, 1961, he made a statement in his own handwriting to representatives of the FBI, as follows:

"I have no intention of carrying on my person a Selective Service card.
"I belong to an un-named group, recently formed, of individuals from different colleges, who have started a movement to persuade other students (college and high school) to refuse to register for Selective Service, or if registered, to disassociate

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