United States v. Pompey, 19385.

• Decision Date: 03 August 1971
• Docket Number: No. 19385.,19385.
• Citation: 445 F.2d 1313
• Parties: UNITED STATES of America v. Paul Oscar POMPEY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

445 F.2d 1313 (1971)

UNITED STATES of America v. Paul Oscar POMPEY, Appellant.

No. 19385.

United States Court of Appeals, Third Circuit.

Argued February 16, 1971.

Decided August 3, 1971.

John David Egnal, Egnal & Egnal, Philadelphia, Pa., for appellant.

Richard M. Meltzer, Asst. U. S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before FREEDMAN,^* SEITZ and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Defendant, Paul Oscar Pompey, was convicted by the district court sitting without a jury of violating 50 U.S.C. App. § 462(a), in that he knowingly refused to obey the order of his local draft board to report for civilian work as a conscientious objector in lieu of induction into the Armed Forces. In this appeal, defendant challenges the validity of his I-O (conscientious objector) classification on the ground that his local board should have granted him a ministerial exemption instead.

At the time he registered with the Selective Service System in January 1966, defendant completed a "Classification Questionnaire" (SSS Form No. 100), in which he alleged that he was both a conscientious objector and a minister of Jehovah's Witnesses. Included in his Form 100 was the following statement: "I prefer a ministers clasifaction, but will acept a conscientious objator claim If I am not granted my right of a minister's classifaction." Defendant's local board classified him I-A but later did send him a special form for claiming conscientious objector status (SSS Form No. 150). Defendant not only outlined his religious beliefs on the Form 150 but also wrote that he was assistant presiding minister of his congregation and itemized the approximate number of hours per month spent in various religious activities. Although he stated that his preaching and teaching were performed "regularly and customarily * * * as a vocation," he indicated on this and various other Selective Service forms that his "usual occupation" was working as a stock boy at an average of 48 hours per week.

Defendant was classified as a conscientious objector on May 16, 1966. He immediately requested a personal appearance to discuss his entitlement to a IV-D exemption, "being that I am a duly ordained minister who regularly preaches and teaches not irregularly or incidentally do so." Upon receiving certification from the Watchtower Bible and Tract Society and from the Presiding Minister of his local congregation that defendant was a duly ordained minister functioning as a Book Study Conductor, the local board permitted defendant to appear before it on August 2, 1966. A summary of this hearing prepared by the clerk of the local board indicates: (a) that defendant claimed to have been an ordained minister since the age of 15; (b) that he worked a minimum of 40 hours per week as a shirt-maker's helper; (c) that his church activities were primarily performed at night and on Sundays and included preaching, teaching, attending meetings, studying the Bible, going to Ministry School, and distributing religious pamphlets door-to-door; and (d) that he would not perform alternate service as a conscientious objector because "we are not permitted to serve anyone but God."

Based upon this interview and a review of the information already in defendant's file, the local board voted unanimously to retain defendant in Class I-O on the expressly stated ground that there was insufficient evidence to warrant a IV-D classification. This decision was subsequently upheld by the state appeal board on November 30, 1966. On January 9, 1967, the local board received a request from defendant for a further appeal, reiterating once again that he was recognized by the members of his congregation as an assistant presiding minister who "teaches as a vocation the doctrines and principles of the bible as advocated by Jehovah's Witness's." The board informed defendant that he could not take a second appeal from his I-O classification and asked him to complete a "Special Report for Class I-O Registrants" (SSS Form No. 152), on which a registrant must select three types of approved civilian work he would be willing to perform.

On September 8, 1967, having yet to select any acceptable civilian employment, defendant sent the following letter to his local board:

"I am writing the board to inform you of my change of address. My new address is

400 W. Charlton St Milledgeville, Ga 31061

"My purpose for moving to Gaoriga is that there are fewer Jehovah\'s Witnesses there and my being a young regular minister who engages in preaching and teaching the tenets and principles of Jehovah\'s Witnesses as a missionary Evangelist is are greatly needed."

The local board continued defendant's processing for civilian work and, since he had failed to select the type of work he wished to perform, the board mailed him a list of proposed jobs and asked him to select one within ten days. This list was inadvertently mailed to defendant's former Philadelphia address. On January 16, 1968, defendant responded in part as follows:

"I had informed you Spt. 8, 1967 that my resident was being changed to 400 W. Charlton St. Milledgeville Ga where I am serving as a pioneer Missionary Minister who is engaged in preaching and teaching the tenets of Jehovah Witness, a duly ordained minister having the qualifications to preach the Gospel of God\'s kingdom through Christ Jesus. Isa 61:1,2 Matt. 24:14. I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant services. Due to conscien I am unabel to serve as a non-combant at any of the Hospitals you have listed."

Finally, on December 17, 1968, the State Director of the Selective Service System authorized the local board to order defendant to report for civilian work at Norristown State Hospital, Norristown, Pennsylvania, on the condition that the board should first determine whether a reopening would be warranted on the basis of new information which had not previously been considered. The board met again on January 9, 1969 and authorized the issuance of an order to report for civilian work, entering in its records the following notation: "Case reviewed by Local Board. No New information received concerning case."

Defendant failed to report as ordered on February 10, 1969 but appeared at his local board two weeks later, stating that he was once again working for a shirt-making company in Philadelphia and had just received the order. He also signed the following statement:

"In regard to my employment at The Norristown State Hospital. as a minister of Jehovah\'s witness I am unable to accept this employment due to Consience, being that this would be a substitue for Military Service, would be making it a compromise, being a baptized Minister of God Jehovah ordianed to Proclaim the kindgom, good news as a scriptural command."

Defendant was again ordered to report for civilian work on October 20, 1969. He appeared at his local board on October 6 and submitted another written statement, refusing to obey the order because "this to me would be a compromise and would be breaking my Integrity to God. * * *" It is defendant's refusal to report to Norristown State Hospital on October 20, 1969 which formed the basis for his indictment and conviction.

I

Defendant first maintains that his order to report for civilian work was invalid because it was based upon an erroneous classification of him as a conscientious objector by the local board on May 16, 1966 and by the appeal board on November 30, 1966. He relies on 32 C.F.R. § 1623.2, which provides in pertinent part:

"Every registrant shall be placed on Class I-A * * * except that when grounds are established to place a registrant in one or more of the classes listed in the following table, the registrant shall be classified in the the lowest class for which he is determined to be eligible, with Class I-A-O considered the highest class and Class I-C considered the lowest class according to the following table:

"Class: I-A-O I-O * * * * * * IV-D * * * * * * I-C"

Thus, regardless of defendant's status as a conscientious objector, the local board was required to place him in Class IV-D if he presented sufficient facts in support of his claim for a ministerial exemption.

Under the provisions of 50 U.S.C. App. § 456(g), "regular or duly ordained ministers of religion, as defined in this title, * * * shall be exempt from training and service (but not from registration) under this title. * * *" See 32 C.F.R. § 1622.43. As defined in the Military Selective Service Act of 1967, a "regular or duly ordained" minister of religion is one who, as his regular and customary vocation, preaches and teaches his religion and who has either been duly ordained in accordance with church ritual or, without having been formally ordained, is nevertheless recognized by his church as a "regular minister." 50 U.S.C. App. §§ 466(g) (1)-(2). Those persons who do not regularly, as a vocation, teach and preach the principles of their sect and conduct public worship in the tradition of their religion are ineligible for a ministerial exemption, regardless of whether they have been duly ordained. 50 U.S.C. App. § 466(g) (3).

In sum, in order to qualify for a ministerial exemption, the registrant must satisfy the following tripartite test: (1) he must show a regularity of religious preaching and teaching; (2) the ministry must be his main and primary calling, his vocation rather than avocation; and (3) his standing in the congregation must be recognized as that of a minister or leader of a group of lesser members. McCoy v. United States, 403 F.2d 896, 900 (5th Cir. 1968); United States v. Hurt, 244 F.2d 46, 50 (3d Cir. 1957); United States v. Simms, 285 F.Supp. 981 (D.Del. 1968). We find that defendant's own evidence was inadequate with respect to...