United States v. Zieber

• Decision Date: 28 April 1947
• Docket Number: No. 9245.,9245.
• Citation: 161 F.2d 90
• Parties: UNITED STATES v. ZIEBER.
• Court: U.S. Court of Appeals — Third Circuit

161 F.2d 90 (1947)

UNITED STATES v. ZIEBER.

No. 9245.

Circuit Court of Appeals, Third Circuit.

Argued February 3, 1947.

Decided April 28, 1947.

Hayden C. Covington, of Brooklyn, N. Y. (Victor F. Schmidt, of Middletown, Ohio, on the brief), for appellant.

Edward A. Kallick, Asst. U. S. Atty., of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, GOODRICH and McLAUGHLIN, Circuit Judges.

BIGGS, Circuit Judge.

The defendant, Zieber, was charged with a violation of the Selective Training and Service Act of 1940, as amended, 50 U.S. C.A.Appendix, § 301 et seq., in that he "did knowingly fail to comply" with an order of his Local Board requiring him to entrain for work of national importance at a civilian public service camp. Zieber pleaded not guilty, was convicted and sentenced to imprisonment for a term of three years. He has appealed.

Zieber, a member of the sect known as "Jehovah's witnesses", registered under the Selective Training and Service Act on December 24, 1942 with Local Draft Board No. 2 in Berks County, Pennsylvania, on his eighteenth birthday. On January 29, 1943 he returned his questionnaire asserting that he was a minister of religion. He stated that he was employed secularly as a paint filler with the Glidden Company of Reading but that he was forced to engage in this secular employment in order to support his mother, an invalid. He claimed exemption as a minister of religion and requested classification as IV-D. He asserted also that he was a conscientious objector and shortly after returning his questionnaire filled out form 47 and filed it with the Board. He was given a physical examination, was found to be unfit for training, and on March 11, 1943 he was classified IV-F. He was reclassified II-B(F) on August 28, 1944 after the Board had received form 42-A filed by the Glidden Company stating that Zieber was engaged in war work and was employed in an essential industry. Zieber remained in this deferred classification for about a year. He was then given another physical examination and on being found physically fit he was reclassified IV-E on August 13, 1945.

On August 21, 1945 Zieber appeared at the office of the Board and presented a document about 20 pages in length entitled "Written Argument".¹ In this he set forth reasons why he should be classified IV-D, as a minister of religion and not IV-E as a conscientious objector. He was notified that the Board rejected this claim. On August 21, 1945 he filed a written request for an opportunity for personal appearance before the Board and was granted permission to appear on August 27, 1945. On that day he appeared before the Board. The clerk of the Board stated at the trial that on that occasion Zieber talked about his case for more than 45 minutes; that during this time the members listened to and heard everything that he had to say.

Zieber testified that at his appearance before the Board on August 27 he was permitted to testify or to talk for not more than 4 or 5 minutes; that he endeavored to inform the Board as to certain facts relating to his ministry and the practice among the congregations of Jehovah's witnesses; for example, that he wanted to tell the Board what his duties as assistant presiding minister of the Kutztown congregation were, but that he was not permitted to testify in respect to any of these matters.

It is clear that on August 27, 1945, the day of Zieber's personal appearance, the Board was confused as to the status of Zieber's case. It is apparent from the testimony of the clerk and that of the chairman that whether the Board listened to Zieber for 45 minutes or for only 4 or 5 minutes, it did not consider his testimony in determining his classification because the members were of the opinion that he had appealed² his case when he filed with the Board the "Written Argument", hereinbefore referred to. If the filing of this document was in fact deemed by the Board to constitute an appeal (as seems to have been the case) it is difficult to see why Zieber's request for a personal appearance should have been granted by the Board on August 24 or why he should have been heard at all on August 27. But nothing contained in the "Written Argument" requests an appeal or makes any reference to an appeal. The Board was not entitled to treat it as an appeal and the analogy now attempted to be drawn by the appellee between the contents of Zieber's "Written Argument" and those of the appeal made by Tung in Chih Chung Tung v. United States, 1 Cir., 142 F.2d 919, is far-fetched.

It is at this point that the first serious difficulty arises in the appellee's case. Subparagraph (b) of Selective Service Regulations § 625.2 provides that at a personal appearance the registrant may "present such further information as he believes will assist the local board in determining his proper classification." The regulation cited also states, that "Such information shall be in writing or, if oral, shall be summarized in writing and, in either event, shall be placed in the registrant's file." It will be observed that that portion of the regulation first quoted employs the words "further information". If Zieber furnished "further information" at his...