Welsh v. United States

• Decision Date: 31 January 1969
• Docket Number: No. 21442.,21442.
• Citation: 404 F.2d 1078
• Parties: Elliott Ashton WELSH, II, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

404 F.2d 1078 (1968)

Elliott Ashton WELSH, II, Appellant, v.UNITED STATES of America, Appellee.

No. 21442.

United States Court of Appeals Ninth Circuit.

September 23, 1968.

Rehearing Denied January 31, 1969.

COPYRIGHT MATERIAL OMITTED

J. B. Tietz(argued), Michael Hannon, Los Angeles, Cal., for appellant.

Gabriel Gutierrez(argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., A. Michael Glassman, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY and ELY, Circuit Judges, and POWELL, District Judge.

POWELL, District Judge:

This appeal is from a conviction of the appellant for refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462.This Court has jurisdiction under Rule 37 of Federal Rules of Criminal Procedureand28 U.S.C. § 1291.

The appellant Welsh registered with his local board on February 2, 1960.On December 11, 1961 the board received his completed classification questionnaire (SSS Form 100).He did not then claim to be a conscientious objector.

On December 14, 1961 the board classified the appellant I-A.On January 15, 1963 the board received appellant's application for a permit to leave the United States.The application stated that the appellant's classification was I-A.On February 5, 1963 the board issued a permit allowing the appellant to depart for a period of one year, which expired March 16, 1964.On March 27, 1964the appellant was ordered to report for a physical examination.On April 10, 1964appellant requested and was given a special form for conscientious objector(SSS Form 150).It was completed and received by the board on April 24, 1964.In that form the appellant stated that he was "by reason of * * * belief, conscientiously opposed to participation in war in any form."¹The appellant had altered the statement in the form by striking out the words "my religious training and" so that the statement read as above.He answered the question, "Do you believe in a Supreme Being?" by putting an X in the box marked "No."²He attached a note explaining the nature of his beliefs.

On May 12, 1964the appellant's local board classified him I-A-O, and on May 25, 1964the appellant sent the local board a letter amending his SSS Form 150 to request classification as I-O.He claimed exemption from both combatant and non-combatant training and service and requested a personal appearance.

He appeared before the local board on June 9.On June 10 the board informed appellant that he was still classified I-A-O.On June 19, 1964 the board received a letter in which appellant stated he was appealing to the Appeal Board from the refusal to classify him as I-O.

On July 28, 1964 the Appeal Board tentatively determined the appellant should not be classified I-O or any lower class.

On November 15, 1965the appellant's file was returned by the Appeal Board which classified appellant I-A by a vote of 3-0.On November 22, 1965 the board mailed the appellant an order to report for induction on December 8, 1965.He reported to the induction center and refused to step forward when his name was called, thereby manifesting his refusal to submit to induction.This prosecution followed.

The appellant raises principal questions as follows:

1.Was the Selective Service System's denial of a conscientious objector classification to appellant without basis in fact and arbitrary, capricious and contrary to law?

2.Were the report and recommendation of the hearing officer and the Department of Justice to the Appeal Board arbitrary, capricious and illegal because based upon unlawful standards?

3.Was the appellant denied a fair hearing before the local board because the board gave appellant too short a hearing or failed to pass upon his eligibility for I-O classification?

4.Was the appellant denied a fair hearing before the Appeal Board in that neither he nor the Appeal Board was given the full report of the FBI or of the hearing officer made to the Department of Justice?

5.Was the appellant denied due process by the induction station's failure to give him an opportunity to complete DD Form 98, Armed Forces Security Questionnaire, as required by the regulations?

6.Did the local board thwart appellant's timely presentation of his request for classification as III-A based on his wife's pregnancy and thus deny him due process of law?

I

Appellant claims that the Appeal Board denial of I-O and I-A-O classifications was without any basis in fact.He also contends that insofar as the Appeal Board decision rested upon the "Supreme Being" clause of section 6(j)³ it is premised upon an unconstitutional distinction between theistic and nontheistic religious beliefs.

In United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 859, 13 L.Ed.2d 733(1965)the Supreme Court explicitly adopted the following test for evaluating conscientious objector claims:

"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."

A determinative question posed by application of the Seeger test to the facts of this case is whether the sufficiency of a registrant's beliefs is to be measured by strength or source or both.Unquestionably strength of belief (or sincerity) is an accepted criterion for judging conscientious objector claims.SeeUnited States v. Seeger, supra, at 185, 85 S.Ct. 850;Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 98 L.Ed. 132(1953).The court in Seeger also noted, apparently with approval, that:

"* * * The section excludes those persons who disavowing religious belief, decide on the basis of essentially political, sociological or economic considerations that war is wrong and that they will have no part of it. * * *"United States v. Seeger, supra, 380 U.S. at 173, 85 S.Ct. at 858.

This quotation obviously contemplates a test based on the source of a registrant's beliefs.The belief is the same for both philosophical and religious objectors, that it is wrong to participate in war.

The government concedes that appellant's beliefs are held with the strength of more traditional religious convictions.But appellant constantly declared that his beliefs stemmed from sociological, economic, historical and philosophical considerations.He denied that his objection to war was premised on religious belief.The Appeal Board was entitled to take him at his word, as he failed to meet the statutory standard, and to deny his request to be so classified.

Appellant next urges us to adopt the well reasoned opinion of Judge Kaufman in United States v. Seeger, 326 F.2d 846(2d Cir.1964), rev'd, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733(1964).That Circuit Court opinion held that the "Supreme Being" clause of section 6(j) unconstitutionally discriminated between theistic and non-theistic religious beliefs, 326 F.2d at 852-855.But in our case the Department of Justice recommendation quoted the test given above from Seeger.380 U.S. 173, 85 S.Ct. 850.The facts and result of Seeger at the Supreme Court level lead to only one conclusion: the Supreme Court deleted the "Supreme Being" clause from the statute as Mr. Justice Douglas observed "in the candid service of avoiding a serious constitutional doubt."Concurring opinion of Douglas, J., United States v. Seeger, 380 U.S. at 188, 85 S.Ct. at 865(1965)quoting fromUnited States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 97 L.Ed. 770(1953).We see no need to consider the constitutionality of this clause because it was already sub silentio stricken from the statute and was so considered by the Department of Justice in this case.

The hearing officer found "no religious basis for the registrant's conscientious objector claim."⁴His conclusion was accepted by the Department of Justice which recommended that the Appeal Board deny appellant's claim for I-O classification.Appellant contends that this recommendation was bottomed on artificial and unlawful standards.In support of this contention appellant relies upon the following observations of the hearing officer: Appellant had not formulated an opinion on euthanasia; he had not formulated an opinion on birth control and, more precisely, upon the question of when life begins in the womb; appellant did not believe in life after death; he did not believe in God or any other entity with authority over man.

A Department of Justice recommendation premised upon an error of law vitiates an Appeal Board classification.Sicurella v. United States, 348 U.S. 385, 392, 75 S.Ct. 403, 99 L.Ed. 436(1955).In Shepherd v. United States, 217 F.2d 942, 946(9th Cir.1954) the hearing officer concluded that Shepherd's willingness to participate in theocratic warfare negated his claim of conscientious objection.This court held this conclusion was wrong as a matter of law and reversed Shepherd's conviction.In Bradley v. United States, 218 F.2d 657, 663(9th Cir.1954), rev'd on other grounds, 348 U.S. 967, 75 S.Ct. 532, 99 L.Ed. 754(1955), the hearing officer observed that Bradley believed in using force in self-defense.But the hearing officer did not conclude that this fact negated Bradley's claim.The court distinguished between a legally insufficient adverse conclusion and mere observation of facts which, had they led to an adverse conclusion, would have been legally insufficient to support it.Bradley v. United States, supra, at 663 n. 9.The observations upon which appellant relies were only observations of fact.We assume, arguendo, that none of them necessarily negates appellant's claim for conscientious objector classification.SeeUnited States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733(1965).But the hearing officer did not conclude that these observations negated appellant's claim.The distinction drawn in Bradley v. United States, supra, between...