United States v. Turcotte

• Decision Date: 26 November 1973
• Docket Number: No. 73-1678.,73-1678.
• Citation: 487 F.2d 417
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice Raymond TURCOTTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 417 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Maurice Raymond TURCOTTE, Defendant-Appellant.

No. 73-1678.

United States Court of Appeals, Fifth Circuit.

November 26, 1973.

M. C. Mykel, Atlanta, Ga., for defendant-appellant.

J. W. Stokes, U.S. Atty., Stanley M. Baum, Beverly B. Bates, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

Maurice Raymond Turcotte, Jr. was convicted of knowingly and wilfully refusing to submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462.¹ The district court sentenced him to a threeyear suspended sentence and a two-year probation period with the special condition that he serve two years' alternative service. Turcotte contended that his I—A classification was invalid because he was entitled to exemption from military training and service due to his conscientious objection to participation in war in any form.²

Turcotte's Selective Service File shows that he registered with the Selective Service in December 1968, following his eighteenth birthday. In February 1969 he was granted a student deferment and classified II-S. In November 1969 he was classified I-A, available for military service, because of his failure to maintain the normal number of semester hours as a full-time student. However, in May 1970 he was given a I-S(C), a student deferment to the end of the academic year. On September 25, 1970, while still classified I-S(C), Turcotte sent the following letter to his Local Board, requesting a I-O conscientious objector status:

"I would also like you to know of certain ideals which have become a driving force in my life.

"Drawing much from my past religious education and from current religious thought, I must religiously object to and resist the Armed Services and conscription into such services. Because I hold these beliefs, I must request a classification of I-O.

"In anticipation of your cooperation, I thank you."

On November 4, 1970, the Local Board reclassified Turcotte I-A. On December 7, 1970, he sent the Local Board the following letter:

"I request a personal appearance before you, as I feel that I can better explain my case verbally. I also request that I may be accompanied by my own witness. In anticipation of your cooperation, I thank you."

Turcotte appeared before the Local Board on January 13, 1971, and submitted his form 150, which detailed his reasons for conscientious objection. The form includes a statement of belief in God and a summary of religious precepts which form the basis of Turcotte's objection to participation in war in any form. It gives the religious background, upbringing, and education Turcotte received from his family and from Catholicism. Turcotte also explains how he derived his beliefs from Roman Catholic teachings even though the Catholic Church itself does not teach conscientious objection. He also lists readings which contributed to his beliefs, persons with whom he has discussed such beliefs, and activities in furtherance of his views, such as affiliation with the Quaker House in Atlanta, peace vigils, group discussions, and draft counseling. Turcotte's statement also includes the following: "My ideas about war and the military did not take shape, however, until my second year at Georgia Tech. At that time I was classified 1-A and began to seriously consider the ethical problems posed by my participation in the military."

In regard to his appearance before the Local Board, Turcotte testified at trial that

"I tried to explain why I thought my belief was a religious belief, and they the Local Board didn\'t have any questions about it."

Trial transcript, p. 92.

"They the Local Board asked me maybe five or six questions. That\'s about all."

Trial transcript, p. 97.

The minutes of the Local Board make only one reference to Turcotte's personal appearance before it:

1-13-71 Made personal appearance before the Bd and on the basis of oral information and information on 150 with other evidence Bd did not feel that he qualified for 1-O.

There are no further references in the Selective Service File to indicate what the "other evidence" was, or what basis the information Turcotte presented gave for feeling that he was not qualified for a conscientious objector classification. Turcotte appealed the Local Board's decision; the Appeal Board continued him in class I-A, and he was ordered to report for induction. Turcotte went through the pre-induction process, but refused to step forward to be inducted into the Army.

Judicial review of Selective Service classifications is extremely limited, the range of review being the narrowest known to the law. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Riles v. United States, 5 Cir., 1955, 223 F.2d 786; Foster v. United States, 5 Cir., 1967, 384 F.2d 372; Matyastik v. United States, 5 Cir., 1968, 392 F.2d 657; Clay v. United States, 5 Cir., 1968, 397 F.2d 901, rev'd. 403 U.S. 698, 91 S.Ct. 2068, 292 L.Ed.2d 810 (1971); McCoy v. United States, 5 Cir., 1968, 403 F.2d 896; Robertson v. United States, 5 Cir., 1969, 417 F.2d 440 (en banc); United States v. Wingerter, 5 Cir., 1970, 423 F.2d 1015; Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959; United States v. Stetter, 5 Cir., 1971, 445 F.2d 472; Kurtz v. Laird, 5 Cir., 1971, 449 F.2d 210. The scope of review of such cases was delineated by the Supreme Court in Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946):

"The provision making the decisions of the local boards `final\' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the 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."³

The standard by which we measure the validity of Turcotte's defense is whether there is a basis in fact for the Selective Service Board's refusal to grant Turcotte a conscientious objector exemption. The basis in fact test has been elaborated by the Supreme Court and by this Court. In Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955), the Supreme Court said:

"In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant.... If, as here, the issue is the registrant\'s sincerity and good faith belief, then there must be some inference of insincerity or bad faith."

This Court has said in Kessler v. United States, 5 Cir., 1969, 406 F.2d 151, 156:

"... the disbelief of Selective Service officials will not justify the rejection of a claim for conscientious objector status unless there is some affirmative evidence to support the rejection of the claimed exemption or there is something in the record which substantially (emphasis added) blurs the picture painted by the registrant and thus casts doubt on his sincerity, Batterton v. United States, 8 Cir., 1958, 260 F.2d 233."

We said in Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959:

"... the Board is not at liberty merely to disbelieve the claimant. There must be some facts in his application—hard, provable, reliable facts—that provide a basis for disbelieving the claimant."

See also Riles v. United States, 5 Cir., 1955, 223 F.2d 786; Wood v. United States, 5 Cir., 1967, 373 F.2d 894, vacated on other grounds, 389 U.S. 20, 88 S. Ct. 3, 19 L.Ed.2d 20 (1967); Greer v. United States, 5 Cir., 1967, 378 F.2d 931; Foster v. United States, 5 Cir., 1967, 384 F.2d 372; Jones v. United States, 5 Cir., 1968, 387 F.2d 909; Matyastik v. United States, 5 Cir., 1968, 392 F.2d 657; Clay v. United States, 5 Cir., 1968, 397 F.2d 901, rev'd. 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971); Merritt v. United States, 5 Cir., 1968, 401 F.2d 768; McCoy v. United States, 5 Cir., 1968, 403 F.2d 896; Robertson v. United States, 5 Cir., 1969, 417 F.2d 440 (en banc); United States v. Wingerter, 5 Cir., 1970, 423 F.2d 1015.

The concept of conscientious objection has been defined judicially as follows:

"An applicant for classification as a conscientious objector must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168, 1971; that his opposition is based upon religious training and belief, as that term has been construed, Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, 1970; United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, 1965; and that his objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428, 1955."

Kurtz v. Laird, 5 Cir., 1971, 449 F.2d 210, 211. In his written statements on form 150, Turcotte clearly stated that he is conscientiously opposed to war in any form. He also stated that this opposition derives from religious beliefs. There remains the question of his sincerity. But the Local Board did not ask Turcotte any questions as to his sincerity or as to the "religious" quality of his beliefs, and the minutes of the Local Board have provided us with nothing but the cryptic statement, "on the basis of oral information and information on 150 and with other evidence Bd did not feel that he qualified for 1-O." Furthermore, according to Turcotte's trial testimony and to the record we have before us, there is no indication that the "oral information and information on 150" do anything other than support Turcotte's position. A diligent search through Turcotte's...