United States v. Johnson, 71-1475.

• Decision Date: 30 March 1972
• Docket Number: No. 71-1475.,71-1475.
• Citation: 459 F.2d 591
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Wayne JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

459 F.2d 591 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Wayne JOHNSON, Defendant-Appellant.

No. 71-1475.

United States Court of Appeals, Ninth Circuit.

March 30, 1972.

Michael R. Rayton (argued) of Ryan, Carlson, Bush & Swanson & Hendel, Seattle, Wash., for appellant.

Ernest Scott, Jr., Asst. U. S. Atty. (argued) Susan L. Barnes, Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for appellee.

Before DUNIWAY and TRASK, Circuit Judges, and LUCAS,^* District Judge.

LUCAS, District Judge.

Appellant was convicted of violating 50 U.S.C. App., § 462(a), and 32 C.F.R. 1632.14 for his refusal to submit to induction into the armed forces as ordered by his local draft board. On appeal, he alleges that the trial court erred in finding that the local board properly refused to reopen his classification upon his submission of a "Special Form for Conscientious Objectors," Selective Service System Form 150. We affirm that finding.

Appellant registered with Local Board No. 6 of the Selective Service System at Seattle, Washington, on June 18, 1965. After receiving several deferments, on February 23, 1968, he was reclassified from II-S to I-A and advised of his right to ask for an appeal or personal appearance. On February 27, 1968, Local Board No. 6 received appellant's request for an appeal and a personal appearance before the Board. The Board advised appellant of a personal appearance to be held before it on April 15, 1968. On that date, the appellant appeared before the Board and advised it in writing that he would like to be classified as a conscientious objector. Apparently, it was during that appearance that the appellant received SSS Form 150 "Special Form for Conscientious Objectors." Appellant completed and returned this form. As part of filling in this form appellant furnished the names and addresses of six individuals who could supply information as to the sincerity of his professed convictions. None of these references wrote to the Board, or spoke to the Board, although they were requested to do so. On June 3, 1968, the Local Board considered appellant's request for a conscientious-objector classification. The Board refused to reopen his classification, citing the following reasons: (1) applicant's claim was "not based on religious beliefs;" (2) applicant presented his claim "after he realized he did not qualify for student deferment;" and (3) applicant's "references given in Series V did not substantiate his claim upon our letter of request." The Appeal Board unanimously upheld the decision thus leaving appellant in Classification I-A. Appellant objected in writing to the Washington State Director of Selective Service, and was afforded a "courtesy interview" by the local board to allow him an opportunity to elaborate his claim for conscientious-objector exemption. Appellant also was reminded to contact his references at this time. At no time did the Board receive any communications from appellant's references. In September 1968 the appellant reappeared before the board and explained the basis for his claim for exemption. His request to reopen classification was denied. On March 4, 1969, an order to report for induction was mailed. On April 8, 1969, the Army reported that the defendant refused to be inducted.

At the time of trial, appellant entered a plea of guilty. Prior to sentencing, the Supreme Court had granted certiorari in Welsh v. United States, 404 F.2d 1078 (9th Cir., 1968) to determine the extent of conscientious objection based on nonreligious grounds, and the district court stayed sentencing of appellant pending the outcome of that case. After the Court's decision in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) appellant was allowed to withdraw his guilty plea, and moved to dismiss the information alleging that his file qualified him for rehearing on his conscientious-objector status under the standard developed by Welsh. The motion was denied. Appellant waived his right to jury trial, and, after court trial, on February 12, 1971, the court pronounced him guilty.

Appellant raised three questions on appeal: (1) whether appellant's files presented a prima facie case for conscientious-objector status; (2) whether, given a prima facie case, the board was required to reopen the determination of his classification ; and, (3) whether, given a prima facie case, evidence in the record supports the finding of insincerity by the board.

These questions turn on the principal issue whether the appellant's record as a whole, particularly his SSS Form 150, presented a prima facie case for exemption as a conscientious objector. Inasmuch as this court holds that a prima facie case was not sufficiently set forth, the remaining questions posed are not reached.

The statutory exemption for conscientious objectors is set forth in Section 6(j) of the Universal Military Training and Service Act, 50 U.S.C. App. § 456(j), which exempts from combatant training and service in the armed forces those individuals who by reason of their "religious training and belief" are conscientiously opposed to participation in armed conflict. Expressly excluded from this exemption are those who profess views which are essentially "political, sociological, or philosophical" or which are merely a "personal moral code." This court is guided by the standards initially outlined by the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) and as amplified in Welch, supra, in examining appellant's total record. The test was set forth, with respect to determining the necessary conviction in one's belief as a conscientious objector, as

"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. . . ." Seeger, at 176, 85 S.Ct. at 859; Welsh, 398 U.S. at 339, 90 S.Ct. 1792, supra.

That portion of appellant's file which capsulizes the statement of his belief is contained in Series II of his SSS Form 150, where, in response to the inquiry that he describe the nature of his belief which is the basis of his claim, he replied: "I believe my own conscious (sic) to be my Supreme Being and that it is also Superior to duties arising from any human relation."¹ This court is provided some guidance by the language and reasoning of its earlier opinion. United States v. Moore, 423 F.2d 556 (9th Cir., 1970) which, although decided in the interim between Seeger and Welsh, incorporated the thrust of the latter decision in disposing of a similar question with respect to the characterization of an applicant's beliefs. Moore emphasized the language in Seeger which was adopted and followed in Welsh as the "test" of belief for qualifying as a conscientious objector. Moore, at 558. Moore, in describing his "belief," expounded at length essentially on the same theme presented by appellant in the instant case. This belief, when stripped of its laudable rejections of war and conflict, can be reduced to an essential affirmation of faith in one's self, subordinating even those relationship with others to the concept of self. Such a credo would seem to preclude a belief parallel to that filled by an orthodox belief in God, and would seem to be essentially a "kind of individual self-determination." Moore, at 558. Beyond this level, the court cannot speculate. At this point, third-party interpretations of the different facets of appellant's convictions would have been critical. However, appellant did not meet this burden of providing supplementary elaboration on the characterization of his beliefs. To allow the court to presume what might have emerged, either through supplementary responses provided by the appellant, or through supporting letters of reference which might have provided crucial insight, would be for it to fashion appellant's position.

Appellant seeks to draw a close parallel with the characterization of the belief held to qualify as an exemption in Welsh, noting with particularity the experiences of childhood religious training, notwithstanding the abbreviated statements offered by the appellant to communicate his beliefs. See Welsh, 398 U.S. at 341, 90 S.Ct. 1792. However, a determination of an applicant's beliefs is not limited to his statements, but covers his entire application. And, in Welsh, the court based its holding that he was entitled to conscientious-objector status on an elaboration of his beliefs later communicated to the Service officials, and on this court's conclusion that he held them "`with the strength of more traditional religious convictions,' 404 F.2d, at 1081. . . ." Welsh, at 343, 90 S.Ct. 1798. In the instant case, appellant failed to elaborate sufficiently those characterizations, even though given ample opportunity to do so. Elaboration might have lent the requisite conviction to the argument that his behavior was governed by a superior moral force parallel to that occupied by an orthodox belief in a God. There is a significant absence of supporting material in this case for this court to find that appellant professes his belief with "`the strength of more traditional religious convictions. . . .'" Welsh, at 343, 90 S.Ct. at 1798.

Elaboration was crucial in Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), another case relied upon by appellant but which is distinguishable on its facts. In that case, the court emphasized, as evidence of "new information," five letters written in support of the petitioner, noting

"it is clear that the petitioner\'s SSS Form 150 and the accompanying letters constituted a prima facie showing that he met the statutory standard for classification as a conscientious objector. . . ." Mulloy, at 417, 90 S.Ct. at 1771.

Appellant submitted no supporting letters ; it cannot be said that "new factual allegations" were presented which "were not conclusively refuted" by...