United States v. Stewart

• Decision Date: 25 April 1973
• Docket Number: No. 719,Docket 73-1036.,719
• Citation: 478 F.2d 106
• Parties: UNITED STATES of America, Appellee, v. James Seth STEWART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

478 F.2d 106 (1973)

UNITED STATES of America, Appellee, v. James Seth STEWART, Defendant-Appellant.

No. 719, Docket 73-1036.

United States Court of Appeals, Second Circuit.

Argued March 23, 1973.

Decided April 25, 1973.

Frederick B. Boyden, New York City, for defendant-appellant.

George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Richard J. Davis, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

James Seth Stewart, Jr., appeals from a judgment of conviction for willful refusal to submit to induction in the Armed Forces, 50 U.S.C. App. § 462(a), entered after a trial in the United States District Court for the Southern District of New York before Judge Charles L. Brieant, Jr., sitting without a jury. Appellant was sentenced on December 14, 1972, as a young adult offender, 18 U.S.C. §§ 4209, 5010(d), to a term of nine months, but was released on bail pending his appeal. In this court he challenges, as he did below, the validity of the underlying induction order, which followed in due course the rejection by the Selective Service System of his claim for exemption from combatant and noncombatant training and service in the Armed Forces as a conscientious objector. See 50 U.S.C. App. § 456(j). Finding error in the administrative proceedings that culminated in denial of Stewart's request for classification as a conscientious objector, we reverse his conviction.

The essential facts are not disputed. Appellant duly registered with Local Board No. 10 in Mount Vernon, New York, on July 28, 1966. He was thereafter classified II-S (student deferred from military service) from September 26, 1966, to August 19, 1970, as a result of his full-time undergraduate attendance at Stanford University. On February 6, 1970, he requested from the Local Board Selective Service Form 150, the application form for classification as a conscientious objector to combatant training and service (I-A-O status) or to both combatant and noncombatant training and service (I-O status). He thereafter received the form, filled it out, and returned it to the Board on March 26, 1970. In his application for I-O status, Stewart stated that he was "conscientiously opposed to participation in war in any form, . . . further opposed to participation and service in the Armed Forces . . ., but . . . prepared to perform civilian alternative service if called." He submitted a six-page essay in fulfillment of the requirement that he offer certain specified information to substantiate his conscientious objector claim. In it he expressed his beliefs that "God is the creator of life, and his power is Love; love transforms the mystery and contradictions in the human experience into a process of holiness"; and that "war is not fit for men." He further stated:

"Since I will never be persuaded that the destruction of life ever enhances the quality of life, my beliefs insist that I not only never kill, but also that I never ask anyone to kill for my sake. . . . I also oppose by the nature of my beliefs any decision made of who is to kill and be killed. I therefore cannot serve the war machine of my country in any way."

The source of his beliefs he described as his faith in Christianity and his loving, Christian family background, including the influence of his father, grandfather and uncle, all of whom are ministers. However, he professed to some doubts of his own religious orthodoxy, which had in part prevented him, erroneously, from seeking conscientious objector status at an earlier date. He went on to explain in further detail why his conscientious objection had not surfaced earlier.¹ In answer to the question of whether he had given expression to his views, he cited "many long talks about war and loyalty, peace rallies, a sit-in, and work on the Moratorium. But mainly, I have been concerned. And I also hope that refusing to go to war can be seen as a daily event in my life."

In support of his application, friends and relatives of Stewart submitted eight letters generally noting his integrity and his sincere commitment to his religious beliefs in peace and non-violence.

On August 19, 1970, the Local Board granted appellant a 10-minute discretionary pre-classification interview, at the beginning of which he submitted an additional typewritten statement reiterating that "God is the creator of life, and his power is love" and that "my beliefs insist that killing and war is wrong, and that I not do it." The Local Board denied his request for I-O classification and reclassified him from II-S to I-A (available for induction) by a unanimous 3-0 vote. In its summary the Board explained its action by concluding:

"Registrant is not a genuine conscientious objector based on the norms set forth in LBM # 107 in that registrant\'s objection is not to all war but to the present specific war."

The Executive Secretary of the Local Board summarized in longhand the oral information given by appellant, noting on the summary sheet, among other things, that "Registrant said he could understand World War 2 but this war (Vietnam) he cannot serve."²

At the bottom of the summary of oral information provided by the registrant the following appeared:

"Board\'s Note: Registrant stated that he would have served in a war like World War 2, but under no circumstances would he be involved or serve in the present type of war."

On August 27, 1970, the day after appellant was notified of the denial of his claim, he reviewed his file. In a letter delivered to the Board on September 10, he appealed the I-A classification, denied having said that he "would have fought in World War II," and requested a personal appearance to discuss the reason for the denial of his application for I-O status.³ On November 18, 1970, appellant appeared as a matter of right before the Board, again seeking a I-O classification. He submitted a statement explaining his beliefs and describing the misunderstanding about what he had said at the August 19th interview in the following manner:

"I was asked, `How do you think W.W. II compares to the present war?\' I responded that I could understand how a man of conscience could have fought in that war, but that I couldn\'t understand how someone could in the present war.

"I said that because I know men in my family of great morality who felt at the time that it was their duty to fight, and from my understanding of those times I can sympathize with the dilemma they responded to.

"However, their times and experiences are not mine. I was raised with a different perspective on war. . . .

"There is no contradiction in my mind: to understand the dilemma under which someone once acted with concience sic does not obligate one to commit himself to that action, or in any way invalidate the sincerity of one\'s intention."

The Board's summary of the November 18 appearance reflected appellant's denial that he had ever said he would have fought in World War II, his version of what he had said, and the following:

"The board asked registrant is he a man of conscience. Registrant answered he is. Registrant said that he cannot throw himself back in World War #2, he is against all wars. . . . Registrant said he could not understand why the board felt that he is not sincere. He is prepared to do alternate service."

The Board did not indicate whether or concience sic does not obligate one

how it reconciled the factual inconsistency between Stewart's version and its Executive Secretary's summary version of the August 19 interview. Instead, the Board members again unanimously denied appellant a I-O classification with the bare conclusion that "the Local Board is not convinced of the sincerity of registrant's claim as a conscientious objector." As Judge Brieant noted in his opinion "the Local Board indicated no specific fact or reason which led to its conclusion that defendant was insincere. . . ."

Stewart appealed his I-A classification on January 4, 1971. He also wrote letters to the Local Board on January 4, 6, and 14 attempting to clear up the apparent misunderstanding and convince the members of his sincerity, but the clerk did not bring any of these letters to their attention and no action was taken on them. On February 18, the Appeal Board unanimously sustained the Local Board's classification of appellant as I-A, without stating any reasons for its decision, during a one-hour meeting in which the classifications of 102 registrants were reviewed and determined. Of these, 89 classifications were sustained and 13 were reversed, though none of the 6 conscientious objector appeals was granted. The Appeal Board members did not have the registrants' files before them until the meeting, and there was uncontradicted testimony that they sometimes did, and sometimes did not, review the files but that in the former case they did not make any notation of files reviewed. They did receive summaries of the files about two weeks in advance of the meeting, but these were customarily discarded later and appellant's was never found.

On November 10, 1971, appellant refused to submit to induction. His indictment and conviction followed. Judge Brieant held that there was a "basis in fact," Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), for the I-A classification given appellant by the Local Board after his November 18 appearance. He further concluded that the failure of the Board members to give reasons for their conclusion that Stewart had not convinced them of the sincerity of his claim as a conscienious objector did not invalidate the I-A classification he was given, since Judge Brieant was able to infer the existence of legally sufficient reasons which appeared to have a factual basis in the record. He explained:

"A reasonable interpretation of the material set forth in his Form 150, taken together with the results of his prior

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