United States v. Sicurella, 11012.

• Decision Date: 15 June 1954
• Docket Number: No. 11012.,11012.
• Citation: 213 F.2d 911
• Parties: UNITED STATES v. SICURELLA.
• Court: U.S. Court of Appeals — Seventh Circuit

213 F.2d 911 (1954)

UNITED STATES v. SICURELLA.

No. 11012.

United States Court of Appeals Seventh Circuit.

June 15, 1954.

Hayden C. Covington, Brooklyn, N. Y., Karl M. Milgrom, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., James B. Parsons, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

This appeal is companion to United States v. Simmons, 7 Cir., 213 F.2d 901. Although the cases were combined for oral argument, separate opinions seem desirable for purposes of clarity.

The appeal is taken from a judgment of conviction of refusing to submit to induction into the armed forces in violation of 50 U.S.C.A.Appendix, § 462. In his questionnaire appellant stated that he was an ordained minister of Jehovah's Witnesses and a student at a ministry school operated by that sect. He asserted a right to a IV-D, minister of religion classification. This claim was ultimately denied by the selective service authorities and is not in issue before us.

In his questionnaire appellant asserted no claim to conscientious objector status. After denial of his ministerial claim, he filed an application for a I-O, conscientious objector, classification, in which he asserted that by reason of his religious training and belief he was conscientiously opposed to participation in war in any form. He was granted a hearing on this claim by his local board, which classified him I-A. Appellant took an appeal from this classification to the state appeal board. His file was referred by the appeal board to the Department of Justice for its investigation and recommendation. An investigation was conducted by the F.B.I. A hearing was held before a Department hearing officer at which appellant appeared, together with a number of witnesses in his behalf. At his trial he testified that he asked the hearing officer for a summary of the adverse evidence contained in his F.B.I. file. He quoted the hearing officer as answering, "There is no use telling you, because it is favorable." The hearing officer recommended to the Department that his claim be sustained. Because appellant had expressed a willingness to use force in defense of "Kingdom Interests", and therefore was not opposed to war in any form, the Department of Justice in its report recommended to the appeal board that his claim be denied and that he be classified I-A.

The appeal board classified him I-A and the induction order followed. Appellant admits that he refused to submit to induction when ordered to do so, but contends that the order is void, averring that there is no basis in fact for denying his conscientious objector claim and that he was denied due process of law in certain stages of the classification process to be subsequently related.

We have previously outlined the principles guiding our determination of the basis in fact question in the opinion in United States v. Simmons. Applying those principles, on the record before us we cannot say that the appeal board's denial of appellant's claim was without basis in fact. The question whether a belief in the use of force in self-defense and in theocratic warfare is incompatible with a claim of conscientious objection has been considered by the courts of several circuits. In United States v. Dal Santo, 7 Cir., 205 F.2d 429, 433, certiorari denied 346 U.S. 858, 74 S.Ct. 71, we expressed the view that a denial of a conscientious objector classification solely on the basis that, "believing in self-defense," a registrant "could not qualify as a conscientious objector" would, at most constitute an erroneous classification which would be final and not subject to correction by judicial review. In Annett v. United States, 205 F.2d 689, the Court of Appeals for the Tenth Circuit, one judge dissenting, held void a classification denying Annett's claim to conscientious objector status which the court found was based solely on the defendant's expressed belief in the use of force in self-defense. This decision has been followed in United States v. Taffs, 8 Cir., 208 F.2d 329, certiorari denied 347 U.S. 928, 74 S.Ct. 532; United States v. Hartman, 2 Cir., 209 F.2d 366; and United States v. Pekarski, 2 Cir., 207 F.2d 930.

In view of the most recent pronouncement by the Supreme Court in Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 157, that courts may not apply "a test of `substantial evidence'" to this type of case, it would appear that the cases last cited rest on an incorrect theory of the scope of judicial review, thus rendering their authoritative value speculative. The majority of the court in the Annett case treated the expression of belief in the use of force for limited purposes as evidentiary but reversed Annett's conviction because of a "lack of any substantial evidence" to support the board's denial of his conscientious objector claim. The court in the Pekarski case reiterated this test in holding a classification order void because supported by "no substantial evidence." The courts in the Hartman and Taffs cases based their decisions solely on the basis of the majority opinion in Annett without the benefit of any discussion of the merits of that decision.

We think that this court, speaking through Judge Duffy, expressed the correct view in the Dal Santo case. Whether or not appellant's willingness to...