United States v. Jackson, 10775.

• Decision Date: 06 December 1966
• Docket Number: No. 10775.,10775.
• Citation: 369 F.2d 936
• Parties: UNITED STATES of America, Appellee, v. Charles Alton JACKSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

369 F.2d 936 (1966)

UNITED STATES of America, Appellee, v. Charles Alton JACKSON, Appellant.

No. 10775.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1966.

Decided December 6, 1966.

John R. Goodwin, Morgantown, W. Va., for appellant.

John H. Kamlowsky, U. S. Atty. (John Marshall, III, and George R. Triplett, Asst. U. S. Attys., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit Judges.

BOREMAN, Circuit Judge:

Charles Alton Jackson was indicted under section 12(a), 62 Stat. 622 (1948), 50 U.S.C. App. § 462(a) (1964), for failure to perform a duty required of him under the Selective Service Act. A jury found him guilty and the court imposed a sentence of three years in prison. On appeal he contends that the court committed error in instructing the jury; in refusing to admit testimony concerning the prejudice of an official of the Selective Service Board; and, that he was deprived of his constitutional right to a speedy trial to his prejudice.

The evidence reveals that defendant, a resident of Kingwood, West Virginia, is a twenty-five year old "ordained minister" of the Jehovah's Witnesses. In February of 1962 defendant stated in his Selective Service Classification form that he was a conscientious objector and a minister and claimed exemption from any form of military service. However, his Local Board No. 17 classified him 1-0, Conscientious Objector, and notified him thereof on March 30, 1962. Defendant did not appeal this classification.

Consistent with his classification as a conscientious objector, defendant thereafter received an order to report to Local Board No. 17 on May 27, 1964, for the purpose of receiving instructions to report to Memorial Hospital in Charleston, West Virginia, to perform work of national importance. Defendant failed and refused to report as ordered, claiming that he was entitled to a ministerial exemption because of his duties as a minister of his religion.

It appears from the record that at the time the order to report was issued defendant was employed by a local bakery as a bread salesman, devoting forty to forty-five hours per week to this work and earning $55 to $60 per week. In the past he had worked as a carpenter, a painter, and a plumber. Defendant's duties as a "minister" amounted to giving Bible sermons, serving as a salesman for magazines, and most importantly, in his view, providing transportation for the members of his congregation.

Defendant attacks the court's instruction to the jury that the only issue was whether the jury believed beyond a reasonable doubt that the defendant had been ordered to report to the local board, and if so, whether he knowingly failed to comply with such order. Defendant argues that such an instruction not only precluded the jury from considering whether he was entitled to a ministerial deferment but amounted to a directed verdict against him since he readily admitted his conscious failure to report.

In a criminal prosecution for a refusal to obey a Selective Service Board order "the scope of judicial inquiry into the administrative proceedings leading to the defendant's classification is very limited." Blalock v. United States, 247 F.2d 615, 619 (4 Cir. 1957). The courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant. Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Blalock v. United States, supra.

In order to establish entitlement to a ministerial exemption it was necessary that defendant prove that he regularly and customarily taught and preached the principles of his religion, administered the ordinances of public worship embodied therein, and that he performed these functions, not incidentally, or as his avocation, but regularly, as his vocation. Section 16(g) (1) (3), 62 Stat. 624 (1948), 50 U.S.C. App. § 466(g) (1) (3) (1964); Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); United States v. Stewart, 322 F.2d 592 (4 Cir. 1963).¹ Defendant failed to satisfy these requirements. While it appears that he was a "minister" in the sect of which he was a member he was not regularly and customarily engaged in the pursuit of this office, since, by his own testimony, it appears that he worked full time as a bread salesman. While the mere fact that secular labor is performed by the defendant is insufficient to serve as the basis for a denial of the exemption, there is a point at which the relative amount and type of secular activity may permit such a decision. Dickinson v. United States, supra; United States v. Stewart, supra. Here, the evidence supported the trial court's conclusion that defendant's classification was not without "any basis in fact." Such a conclusion is a matter of law solely for determination by the court. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947). Once the court was satisfied that there was a basis in fact for the board's classification, the sole issue for the jury was whether or not defendant was ordered to report and if so, did he fail to obey the order. The court correctly concluded that it was not within the province of the jury to consider defendant's eligibility for a ministerial exemption. Cox v. United States, supra; United States v. Petiach, 357 F.2d 171 (7 Cir. 1966); United States v. Norris, 341 F.2d 527 (7 Cir. 1965); United States v. Parker, 307 F.2d 585 (7 Cir. 1962).

Defendant assigns as error the District Court's refusal to admit evidence tending to show prejudice on the part of a Selective Service official. It is to be noted that defendant did not appeal his...