United States v. Mohammed

• Decision Date: 01 May 1961
• Docket Number: No. 13096.,13096.
• Citation: 288 F.2d 236
• Parties: UNITED STATES of America v. Wallace Delaney MOHAMMED.
• Court: U.S. Court of Appeals — Seventh Circuit

288 F.2d 236 (1961)

UNITED STATES of America v. Wallace Delaney MOHAMMED.

No. 13096.

United States Court of Appeals Seventh Circuit.

March 21, 1961.

Rehearing Denied May 1, 1961.

William R. Ming, Jr., George N. Leighton, Richard D. Gumbel, Jr., Ellis E. Reid, Chicago, Ill., for defendant-appellant.

Robert Tieken, U. S. Atty., S. John Templeton, Jr., Asst. U. S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Howard R. Kaufman, Asst. U. S. Attys., Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, KNOCH, Circuit Judge, and MERCER, District Judge.

MERCER, District Judge.

Defendant was convicted at a trial without a jury of violation of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., by reason of his refusal to report for civilian work as ordered by his local selective service board. He now appeals the judgment of conviction, asserting several contentions of error which principally hang from the common thread of his contention that he is now a minister of his religious sect.

Defendant is a Muslim, a devotee of the Islamic Religion. He registered with the local board in November, 1952. In his selective service questionnaire, filed with the local board in December, 1952, he claimed that he was a conscientious objector to participation in war. The local board classified him 1-A. As the result of an appeal, defendant was classified 1-O by the Illinois Appeal Board on May 9, 1955. Because of a procedural irregularity which preceded that classification, defendant's file was reconsidered by the appeal board and he was again given a 1-O classification on June 6, 1956.

The 1-O classification made defendant subject to induction, pursuant to order of the local board, for civilian work of national importance. Defendant raised no objection to the 1-O classification as he might have done when he was notified thereof on or about June 6, 1956. Instead, his dissension against the classification began on October 9, 1956,¹ at the earliest, and after the local board had begun processing his file for his induction into civilian work.

That dissension blossomed into a claim that defendant was a minister of his sect and entitled to exemption from the provisions of the Act. He defended the criminal charge upon that claim of exemption and his major contentions against the judgment on this appeal are related thereto.

A principal contention advanced by defendant for reversal of the judgment is that the order to report for civilian work is void because the local board failed to reopen defendant's classification and grant him a hearing upon his alleged claim of entitlement to the ministerial exemption. Before we consider that contention, and before we allude in detail to the historical background of defendant's indictment and conviction, we will dispose of a second major contention that the trial court erroneously excluded evidence offered by defendant in support of the merits of his claim of his ministerial status.

The statutory provision making decisions of the local boards "final" precludes the courts from weighing the evidence to determine whether the classification given to a particular registrant was justified. "The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous." Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567. The court may interfere with the classification given to a registrant by a local board only if it finds that there is no basis in fact for the classification given, or if it finds that the board acted so arbitrarily and capriciously that due process of law is denied. Winter v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Estep v. United States, supra. "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, supra, 327 U.S. at page 122-23, 66 S.Ct. at page 427.

The courts may not sit as super draft boards, substituting their judgment on the weight of evidence for the judgment of the designated selective service agencies. Witmer v. United States, supra at 348 U.S. at pages 380-381, 75 S.Ct. 392. Where the claim is made that a particular classification was denied by the local board, it is not the function of the court to determine whether the registrant is, in fact, entitled to the classification which he claims. The court's function, in that respect, is limited to a review of the file upon which the selective service agencies acted to determine whether a basis in fact exists for the classification given. Estep v. U. S., supra. The court properly excluded the evidence which was relevant only to the merits of defendant's claim of ministerial status. See Smith v. United States, 4 Cir., 157 F.2d 176, certiorari denied 329 U.S. 776, 67 S.Ct. 189, 91 L.Ed. 666, in which the conviction of a registrant who claimed ministerial status was reversed on the ground, inter alia, that the trial judge had permitted the issue of the defendant's status as a minister to be tried before the jury.

Defendant's principal contention is that he was denied due process of law and procedural fairness because, as he alleges, the local board failed to reopen his classification and to consider his claim of entitlement to a ministerial exemption. The merits of that contention must be considered upon the basis of the historical background of defendant's asserted claim of exemption as reflected in his selective service file.

In his classification questionnaire, submitted to his local board in December, 1952, defendant struck out the section relative to ministers of religion. He claimed that he was a conscientious objector to participation in war, a claim which was recognized by the selective service agencies when defendant was given a 1-O classification by the appeal board on June 6, 1956.

Defendant's file was returned to the local board contemporaneously with the appeal board order of June 6, 1956. On June 11, 1956, the local board wrote to defendant requesting that he designate three types of civilian work which he was willing and qualified to do. SSS Form 152 was enclosed with that letter for defendant to complete and return to the board. When no response was received from defendant, the board mailed follow-up letters including a letter of October 1, 1956, renewing the request that he complete and return SSS Form 152. Defendant made no response to these letters until October 9, 1956.

On the latter date, defendant advised the board, by letter, that he was devoting all of his time to work for the Temple of Islam in Chicago.² That letter was his first contact with the board subsequent to his receipt of notice of his 1-O classification. The file reveals no specific reply by the board to the October 9 letter, but on October 23, 1956, defendant was again requested, by letter, to complete and return SSS Form 152. When no response was received from defendant, the clerk of the local board advised him, by letter dated January 3, 1957, that he should meet with the local board on January 15, 1957, at which time a representative of the office of the State Director would aid the board and defendant in reaching an agreement as to the type of civilian work to which defendant would be assigned. The defendant attended the January 15th meeting, at which time he stated that he "definitely" would not participate in the civilian work program because it would interfere with his activities in conjunction with the Temple.³

Thereafter, on February 11, 1957, defendant was ordered to report to the local board on March 4, 1957 for assignment to Elgin State Hospital. He refused to report.⁴ An indictment⁵ was returned by the August, 1957 grand jury charging defendant with a violation of the Act by his refusal to report for civilian work pursuant to the February 11th order.

While that indictment was pending, on April 1, 1958, defendant wrote to the State Director stating that "I was and am a student for the ministry at the University of Islam, and an assistant minister in our temple" since "shortly after I filed my Classification Questionnaire on December 18, 1952."⁶ On April 10, 1958, Lt. Colonel Woodworth, for the State Director, advised defendant that a review of his file failed to reveal any evidence supporting his claim for a ministry student or ministerial exemption.

A trial on indictment No. 57 CR 532 was concluded May 20, 1958. A verdict of guilty was set aside and a new trial ordered on September 11, 1958, for the reason, as the Court found, that the February 11, 1957 induction order was signed only by the clerk of the local board and defendant's file contained no record that the order was issued by the board itself.

Thereafter, on October 21, 1958, the board issued a new order directing defendant to report on November 3, 1958, for work at the Elgin State Hospital. By his letter to the local board, dated October 31, 1958, defendant requested reclassification and a hearing before the local board in order to present proof of his claim, then asserted, of ministerial status.⁷

Ultimately, on November 10, 1958, the local board, by letter, advised defendant that no further action would be taken in his case. In the meantime, defendant refused to report to the local board on November 3, 1958 for work at the Elgin State Hospital. At that time defendant signed a statement, "I refuse to perform any work that will take me from my duties to Allah." The indictment, No. 59 CR 64, upon which defendant was convicted was then returned, predicated upon his refusal to obey the order of October 21, 1958.

That cause was consolidated with indictment No. 57 CR 532 for trial before the court without a jury. At the close of the government's case in chief, upon defendant's motion, a judgment of acquittal was entered as to No. 57 CR 532. Defendant...