United States v. Jones, Crim. No. 20764.

• Decision Date: 27 June 1956
• Docket Number: Crim. No. 20764.
• Citation: 142 F. Supp. 806
• Parties: UNITED STATES of America v. Doyle Julian JONES.
• Court: U.S. District Court — District of South Carolina

142 F. Supp. 806

UNITED STATES of America v. Doyle Julian JONES.

Crim. No. 20764.

United States District Court E. D. South Carolina, Columbia Division.

June 27, 1956.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Irvine F. Belser, Asst. U. S. Atty., Columbia, S. C., for plaintiff.

Sidney D. Duncan, Muller O. J. Kreps, III, Columbia, S. C., for defendant.

TIMMERMAN, Chief Judge.

The defendant, charged with violation of Section 462, 50 U.S.C.A.Appendix, in having wilfully refused to be inducted into the military service of the United States pursuant to the order of his local Selective Service board, waived trial by jury and consented to trial by the Court without the aid of a jury. The case was tried before me on June 8th. Motions by the defendant for a judgment of acquittal, made at the conclusion of the Government's case-in-chief and again at the conclusion of all the evidence, were denied.

After careful consideration of the defendant's Selective Service file, the testimony in the case, and the oral and written arguments of counsel, I find the defendant guilty as charged.

The conclusion of the defendant's guilt is based in the main upon the findings of fact and conclusions of the law stated hereinbelow.

The defendant registered with Selective Service System Local Board No. 39, Pickens County, Pickens, South Carolina, on August 1, 1949, giving Easley, South Carolina, as his place of residence and July 29, 1931 as his date of birth. The following year he completed and returned to the local board his Classification Questionnaire. In the Questionnaire he made no claim of being a conscientious objector or a minister, leaving blank the sections of the Questionnaire relating to these matters (Series XIV and VI respectively). He expressed no opinion as to what his classification should be, leaving this line of the Questionnaire blank also. After consideration of the Questionnaire his local board on September 16, 1950 classified him as III-A and then on October 19, 1951, after a change in the Selective Service System regulations, reclassified him as I-A. The defendant did not appeal or request a personal appearance within the time allowed after either of these classifications.

On November 8, 1951 the defendant was ordered to report for physical examination on November 30, 1951. On November 29, the day before the scheduled examination, the defendant wrote to the local board requesting a personal appearance. Following his physical examination, at which he was found acceptable for military service, the defendant made a personal appearance before the local board on December 7, 1951. At this time he requested and received a SSS Form 150, Special Form for Conscientious Objector. So far as the record of the case reveals, this was the first mention by the defendant of a claim for exemption as a conscientious objector. On December 12, 1951 the local board notified him that he had been found physically qualified and ordered him to report for induction on January 8, 1952. On the same day the board received the defendant's completed Conscientious Objector Form 150. At the defendant's request the board rescinded the induction order, and granted the defendant a second personal appearance on January 3, 1952 although the 10-day period since the mailing of his last classification notice had long since expired. On January 23, 1952, after consideration of the defendant's file and the statements and materials submitted by him, the local board reconsidered his classification and voted to continue him in I-A. The defendant was duly notified of this classification and allowed until February 3, 1952 to take any desired appeal. The defendant on February 1, 1952 submitted an appeal (received by the local board on February 4) and certain additional material concerning his conscientious objector claim. The District Appeal Board, preliminarily on February 13, 1952, and again on March 25, 1953 after a Department of Justice hearing and recommendation on the defendant's claim, determined that the defendant was not entitled to the exemption claimed and voted unanimously to continue his I-A classification.

The defendant was thereafter duly notified of his classification and ordered to report for induction on April 24, 1953. The defendant reported as ordered but refused to submit to induction. In due course thereafter he was indicted in this court (Criminal Action No. 19,972) for violation of Section 462, Title 50 U.S. C.A.Appendix.

When his case was called for trial February 16, 1954, the defendant waived trial by jury and declined the services of counsel previously appointed for him by the Court. During the course of arguments on the Government's motion to quash subpoenaes duces tecum served by defendant on the United States Attorney, the Government hearing officer, and the Federal Bureau of Investigation, the defendant challenged the sufficiency of the summary of any adverse evidence in the FBI reports given him by the hearing officer at the time of his Department of Justice hearing. The case not being reached for trial at that term of court because of prior jury trials, the United States Attorney, for the stated reasons that the effect of the recent decision of the United States Supreme Court in United States v. Nugent, 1953, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, which had for the first time laid down the requirement that a registrant be given a "fair résumé" of the adverse evidence in the investigative reports at the time of a Department of Justice conscientious objector hearing, was not then fully understood, and he wished to give the defendant the benefit of every procedural right to which he was entitled, and to eliminate any doubt as to the adequacy of the hearing afforded him, arranged for the defendant to be given a second Department of Justice hearing on his claim of conscientious objection. After a supplementary FBI investigation, the new hearing was conducted by a different hearing officer in Ohio, to which the defendant had in the meantime moved. After the resulting Department of Justice report and recommendation, the appeal board again denied the defendant's claim for exemption and on July 27, 1955 continued his I-A classification.

After defendant's requests for personal appearances before the local board and the appeal board were turned down, the defendant was ordered by the local board to report for induction on September 28, 1955. Again he reported as ordered but on September 29 refused to take the symbolic step forward signifying entry into the armed forces. He was accordingly reindicted on October 24, 1955 for the new violation. The present prosecution is based upon the new indictment alleging the violation of September 29, 1955, the original indictment having been nol prossed by the Government in the meantime.

In determining whether or not defendant is guilty of the offense herein alleged, there appear to me to be two principal questions involved: one, whether or not there is any basis in fact in the defendant's Selective Service file to sustain the I-A classification given him by the Selective Service System, and two, whether or not his processing by the Selective Service System was in accordance with the requirements of due process as set forth in the Selective Service statute and regulations and the decisions thereunder. I shall treat these questions briefly in turn.

It is too well established to admit of any question here that in a criminal prosecution of this sort the courts are not to weigh the evidence to determine whether a classification given a registrant by the Selective Service System is justified and that the decision of the applicable Selective Service board made in conformity with the regulations is final even though it may be erroneous. If there is any basis in fact to support the classification determined by the Selective Service System, the Court will not reconsider the evidence in the file to determine whether or not it would reach the same decision. Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567; Cox v. United States, 332 U.S. 442, 452, 68 S.Ct. 115, 92 L.Ed. 59; Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; White v. United States, 9 Cir., 1954, 215 F.2d 782, certiorari denied 348 U.S. 970, 75 S.Ct. 528, 99 L.Ed. 755; Goff v. United States, 4 Cir., 1943, 135 F.2d 610, 612; United States v. Dal Santo, 7 Cir., 1953, 205 F.2d 429, certiorari denied 346 U.S. 858, 74 S.Ct. 71, 98 L.Ed. 371.

What the term "basis in fact" means in connection with conscientious objector cases has recently been set forth in detail in Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428, 434. In the opinion in that case the Supreme Court states that:

"* * * the ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. In these cases, objective facts are relevant only insofar as they help in determining the sincerity of the registrant in his claimed belief, purely a subjective question. In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant. It is `affirmative evidence * * * that a registrant has not painted a complete or accurate picture * * *.' Dickinson v. United States, supra, 346 U.S. at page 396, 74 S.Ct. at page 157. In short, the nature of a registrant's prima facie case determines the type of evidence needed to rebut his claim. If the issue is the nature of his activities, as in Dickinson, the evidence providing `basis in fact' must tend to show that his activities are other than as stated. If, as here, the issue is the registrant's sincerity and good faith belief, then there must be some inference of insincerity or bad faith."

Reading the record of this case with these principles in mind, I...