United States v. Shacter, Crim. No. 28278.

• Decision Date: 12 December 1968
• Docket Number: Crim. No. 28278.
• Citation: 293 F. Supp. 1057
• Parties: UNITED STATES of America v. Michael Herbert SHACTER.
• Court: U.S. District Court — District of Maryland

293 F. Supp. 1057

UNITED STATES of America v. Michael Herbert SHACTER.

Crim. No. 28278.

United States District Court D. Maryland.

December 12, 1968.

Stephen H. Sachs, U. S. Atty., and Theodore R. McKeldin, Jr., Asst. U. S. Atty., Baltimore, Md., for United States.

Joseph Forer, Washington, D. C., for defendant.

HARVEY, District Judge:

The defendant, Michael Herbert Shacter, has been charged in a one-count indictment with unlawfully and knowingly failing and neglecting on August 13, 1968 to perform a duty required by the Military Selective Service Act of 1967, in that he failed and neglected to comply with an order of his local draft board to report for and submit to induction into the Armed Forces of the United States. A motion to dismiss the indictment was heard and denied prior to trial.

At the trial, testimony was heard and exhibits were admitted in evidence, including defendant's complete selective service file which contained all pertinent information as to his classification, the various appeals taken by him, and his failure to report for and submit to induction. At the conclusion of the case, the defendant filed a motion for a judgment of acquittal based on three separate grounds. Both the motion and the merits of the case were fully argued by counsel and will be considered herein.

It is first claimed by defendant that there has been a failure of proof as to the allegation in the indictment that the defendant did not report for and submit to induction on August 13, 1968. The government's Exhibit No. 1, at page 6, clearly establishes that the defendant on August 13, 1968 arrived at the Armed Forces Induction Center in Baltimore, Md. and refused to take the step forward which would have constituted his induction. In the opinion of this Court, the portion of Government Exhibit No. 1 in question was competent and admissible evidence directed to one of the factual issues raised by the indictment. The defendant's motion based on this first ground is therefore denied.

Secondly, it is contended that under United States v. Lybrand, 279 F. Supp. 74 (E.D.N.Y.1967), the government is required to prove that the defendant was ordered to report in accordance with the specified order of call set forth in Selective Service Regulations and that in the absence of any such proof of the order of call, the government has not established an essential element of its case. The Lybrand case dealt with a registrant who had been classified as a conscientious objector but who refused to report for civilian work in lieu of induction. This Court has been referred to no case applying such a principle to facts such as those present here. In any event, the Fifth Circuit Court of Appeals in Lowe v. United States, 389 F.2d 51 (1968), which was decided after Lybrand, held that it was not necessary for the government to prove the order of call as an essential element of its case. This Court adopts the reasoning of the Lowe case and holds that the government need not establish that the registrant was called in proper order and sequence in a case where the registrant has been classified I-A and refuses to submit to induction. The motion based on the second ground is therefore likewise denied.

The third ground for the motion raises the principal question presented in this case, namely, whether the defendant should have been classified by his local draft board as a conscientious objector. The motion will be denied as to this ground, and the question will be considered and decided on the merits.

The statute involved here is § 6(j) of the Military Selective Service Act, as amended June 30, 1967, 50 App.U.S.C. § 456 (j). Pertinent portions of this statute are as follows:

"(j) Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term `religious training and belief' does not include essentially political, sociological or philosophical views, or a merely personal moral code."

It is not contended by the government that the defendant is not conscientiously opposed to participation in war in any form or that such beliefs are not sincerely held. The issue in this case is whether defendant's opposition to war stems (a) from "religious training and belief" as that term has been interpreted by the Supreme Court, in which event he should have been classified as a conscientious objector, or (b) from views which are essentially political, sociological or philosophical, or which represent merely a personal moral code, in which event he has been properly classified I-A.

Defendant is 21 years of age and single. After attending high school in Bethesda, Maryland, he graduated from a private preparatory school in Lenox, Massachusetts, and attended the University of Pennsylvania for one-half year. After filling out his Selective Service Form No. 100 upon reaching the age of 18, he requested and received Form No. 150, the special conscientious objector form. The completed Form 150 was returned to his local board on January 22, 1966. On January 25, 1966, he received the II-S or student classification. When he left the University of Pennsylvania after half a year, he was no longer entitled to this student classification, and on July 20, 1966, he was reclassified I-A. He requested a personal appearance and appeared before his draft board on September 9, 1966, at which time questions were addressed to him concerning his claimed exemption as a conscientious objector. On October 5, 1966, his I-A classification was continued.

Defendant thereupon took an appeal, and appeared before a Department of Justice hearing officer on July 19, 1967. As required by the statute at the time of his classification (but no longer necessary under the amendment effective on June 30, 1967), the Justice Department forwarded a recommendation to the Chairman of the Appeal Board that he not receive I-O or I-A-O classification. On May 2, 1968, he was classified I-A by the Appeals Board. A request for a Presidential appeal was denied. Defendant thereafter submitted to a medical examination, but after receiving due notice and reporting at the induction center on August 13, 1968, he refused to take the necessary step forward.

It is settled that in a case of this sort, the scope of review is narrow. As the Fourth Circuit Court of Appeals said in United States v. Jackson, 369 F.2d 936 (4th Cir. 1966), at page 938:

"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 United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), the Supreme Court was called upon to construe the statute now before this Court in the form in which it then existed. § 456(j) was then in essentially the same form as the 1967 enactment which is presently before the Court except that its second sentence began as follows:

"Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, * * *."

In the Seeger case, a vigorous constitutional attack had been mounted against this statute by registrants claiming exemption as conscientious objectors in three separate cases. If the words "religious training and belief" were to be given a narrow construction, serious constitutional questions would have been presented, for then it could forcefully be argued that through this enactment Congress was in effect preferring some religions over others in violation of the First Amendment and the due process clause of the Fifth Amendment. As suggested by the concurring opinion, 380 U.S. at page 188, 85 S.Ct. 850, the Supreme Court in Seeger went to extremes to construe the statute so as to save it from demise on constitutional grounds.

In considering the meaning of the term "religious training and belief" (which is still contained in the statute), the Supreme Court said this at page 176, 85 S.Ct. at page 859:

"Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: 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 comes within the statutory definition."

This Court construes the statute here before it, that is 50 App. U.S.C. § 456(j), as interpreted by the Seeger case and as amended by Congress in 1967, to mean that conscientious objection reached as a result of a purely intellectual exercise, that is essentially by the application of reason, logic or aesthetic considerations, is not grounds for exemption from combatant training and service in the armed forces. Such a construction would appear to be required by the express language in the statute that the term religious training and belief does not include essentially political, sociological or philosophical views or a merely personal moral code.

On the other hand, if the conscientious objection results from a...