Petition for Writ of Certiorari — Brown v. United States

i anemenemenmmecmanenes ?

Opinions Below .

Jurisdiction.

Questions Presented

Statutes Involved

Statement of the Case.

Reasons for Tranting Writ.

Conclusion .

Appendix A

Appendix B

Appendix C

12a

.l4a

————EEoOoOo

TABLE OF AUTHORITIES

STATUTES

28 U.S.C. Section 1254

50 U.S.C. App. Section 462 (a), . , .

50 U.S.C. Section 456 (j). . .. .

CASES

Caverly v. United States, 429 F 2d, ,

92, 95, (8th Cir. 1970)

Clay v. United States, 403 U.S. 698,

91S Ct. 2068, 29 L. Ed. 2d 810

(1971)

Hand v. Laird, 3S.S.L.R.3298...

(N.D. Calif. 1970)

Helwick v. Laird, 438 F. 2d 959,

965 (5th Cir. 1971) , .

Parr v. United States, 272 F. 2d 416 . .

(9th Cir. 1959)

Peterson v. Laird, 2S.S.L.R.

3210 (W.D. Cal 1970)

Rautenstrauch v. Laird, 313 F. Supp. .

1970 (W.D. Tex. 1970)

ke

Sicurella v. United States, 348 U.S.

385, 755 Ct. 403, 99 L. Ed. 436

a eee ks.

United States v. Burns, 431 F. 2d

1070 (10th Cir. 1970). .......

United States vy. Fisher, 442 F. 2d 109

|: gla a a

United States v. Iverson, No. 71-1262,

8th Cir. Jan. 31, 1972) 5 Selective

Service Law Reporter 3120, 455 F.

PNT Ora SOWA Wk se ee es we

United States v. Stafford, 389 F 2d 215,

OUP EE 6 us ek tk lw

United States v. Wingerter, 423 F. 2d

1015 Gth Cir. ,. are e %

Welsh v. United States, 1970, 398 U.S.

St Soc, 20 L.. Ba. 3g at 317... ...

Witmer v. United States, 348 U.S. 375

ES ek wn ee he WN ye

12

11

In the

SUPREME COURT OF THE

UNITED STATES

Term, 1972

NO.

JOHN WESLEY BROWN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF

“CERTIORARI TO THE SUPREME

COURT OF THE UNITED STATES

OPINIONS BELOW

The United States Court of Appeals for

the Fifth Circuit issued its opinion on March

15, 1972, affirming Defendant's conviction in

the United States District Court for the Western

District of Texas. Petitioner's Petition for Re-

hearing was overruled without opinion April 6,

1972. A copy of the opinion of the Fifth Circuit

Court of Appeals appears in the Appendix A to

ook erent me

a TEA NEN RE RNR RN T ee

this Petition at page

JURISDICTION

The judgment of the United States Court

of Appeals for the Fifth Circuit was entered

March 15, 1972, and the Petition for Rehearing

was denied April 6, 1972. The jurisdiction of

this Court is invoked under 28 U.S.C. Sec. 1254.

QUFSTIONS PRESENTED

The L -al Board denied Petitioner's con-

scientious objector claim, and states four

reasons for denial. None of the reasons stated

was a legitimate reason and the Local Board

fai led to state which of the reasons it was

applying. For example, one of the reasons

given by the Local Board was Petitioner's mem-

bership in the Bahai'i Community, a religious

pacifist organization. The reasons given were:

[The Board Members] felt the registrant had

made a late claim since he requested the one on

conscientious objector classification after re-

fusing to take the step forward for induction.

Registrant also tried to enlist in the Navy. He

was associated with the Bahai'i Community. And

there is also a letter in the file from the father

who states he had no knowledge of his son being

a conscientious objector. '' Petitioner was con-

victed of refusing induction. The questions

presented are: (1) Is reversal of Petitioner's

conviction required because the Local Board

denied Petitioner's claim for reasons, some of

which were not legitimate reasons for denial?

(2) Is there basis in fact for the Board's denial

of Petitioner's conscientious objector claim?

_—

STATUTES INVOLVED

The Statutes which the case involves are:

50 U.S.C App. Section 462 (a), and The Select-

ive Service Act, 50 U.S.C. Section 456 (j). The

text of the Statutes is set forth as Apps. B and C.

STATEMENT OF THE CASE

Petitioner was convicted in the United

States District Court for the Western District

of Texas of refusing induction into the armed

forces in violation of 50 U.S.C. App. Section

462 (a). The case was tried without a jury and

Petitioner was convicted by the Court on June

16, 1971.

Petitioner has urged as his defense that

there was no basis in fact for the Board's denial

of Petitioner's claim of deferment as a consci-

entious objector. He urges that the Board's

denial of his claim cannot be sustained because

the Board based its decision at least in part on

wrong reasons.

The Board stated its reasons as follows:

"The Board members have the following reasons

for denying the claim:

1. They felt the registrant had made a

late claim since he requested the one on con-

scientious objector classification after refusing

to take the step forward for induction.

2. Registrant also tried to enlist in the

Navy.

3. He was associated with the Bahai'i

—— OEE RMIT (HOTT UNS GALSTAD AER ir pane FERN TUREMGAy0NG hE

e ee Mw, wr , ” 7

a

Community.

4. And there is also a letter in the file

from the father who states he had no knowledge

of his son being a conscientious objector. "’

Briefly, the underlying facts are these.

Shortly after his eighteenth birthday , Petitioner

JOHN WESLEY BROWN, registered with his

local draft board, Texas Local Board No. 40,

in E] Paso, Texas. Exh. 1. Within a month

he was classified I-A, but thereafter, on April

1, 1968, Petitioner received a IIS deferment

because he was a full time freshman student

at the University of Texas at El Pasco. Exh. l,

10. He was again classified I-A on March 18,

1970, after he failed to register at the university

for the 1970 Spring Semester. Exh. 1, 10, 102,

105, 106.

After physical examination he was ordered

to report for induction on July 20, 1970. App.

19; Exh. 10. He appeared on that date and

prior to taking the symbolic step forward, he

notified those in charge that he would refuse

induction on the grounds that he was opposed to

wars. Exh. 36-37.

The State Director directed the Local

Board to cance] Petitioner's induction order and

reopen his case. The case was reopened and

Petitioner filed his Form 150, Conscientious

Objector Claim.

On August 20, 1970, Petitioner made a

personal appearance before the Board after

which the Board solicited letters from friends

and relatives concerning his conscientious

-4-

—

objector claim. Exh. 71-79,

One of the letters received was signed by

George Wesley Brown, the father of the Petitioner

which allegedly related the father's displeasure

with Petitioner's friends and denied that the

Petitioner was religious or that he had a claim to

being a conscientious objector. Exh. 19. The

undisputed evidence presented at Petitioner's

trial was that this letter was actually written

by Petitioner's grandfather as the request

and with the help of his Aunt Mary Brown, and

signed by his father during a state of intoxication

which was so severe that shortly thereafter

George W. Brown was committed to William

Beaumont Hospital for a long period of treatment

of alcoholism. App. 65.

At the next regular meeting of the Board

on September 17, 1970, Petitioner was denied

conscientious objector status on the ground that

he was insincere. He was reclassified I-A. Exh.

65. Within 30 days Petitioner filed a notice of

appeal. Exh. 59.

On October 15, 1970, the Board considered

the most recent letter concerning Petitioner's _

claim and then denied the claim. Exh. 58. The

reasons Stated in support of the Board's denial

are: (1) the lateness of Petitioner's Claim, (2)

his consideration of enlisting in the Navy, (3) his

association with the Bahai'‘i Community, and (4)

the letter is his file signed by his father. Exh. 58.

The denial was appealed to the State Appeal

Board, which classified the Petitioner I-A, with-

out a statement of reasons, * aerane was then

ordered to report for induce on January 13,

o-

-5-

—— oon

——_ 2 ee

. en

1971, Exh. 52. Petitioner appeared on that

date but again refused induction on the grounds

that he is conscientiously opposed to wars. Exh.

27-28.

He was indicted by a grand jury and con-

victed on June 16, 1971, for failure to submit to

induction, App. 3,4,5, and convicted. The

conviction was affirmed by the United States

Court of Appeals for the Fifth Circuit.

REASONS FOR GRANTING WRIT

1. At least one of the reasons given by

the Local Board for denying the Petitioner's

claim is not a permissible reason, and, there-

fore, the conviction must be reversed. The

holding of the Fifth Circuit in this case is in

direct conflict with the recent holding of the

Eighth Circuit, United States v. Iverson, No.

71-1262, (8th Cir. Jan. 31, 1 5 Selective

Service Law Reporter 3120, 455 F 2d 79.

The question there presented is the same

as is presented in this case. The Eighth Cir-

suit Court of Appeals in Iverson stated: "...

assuming, arguendo, that insincerity can be

found from the record, the failure of the local

board to state which of the two grounds it was

applying is fatal under this Court's rule

announced in Caverly v. United States, 429

F 2d, 92,95, (8th Cir. 1970), wherein we held:

‘Simply stated from this record,

we cannot tell on what basis the

board acted and, thus, we are

unable to say that a basis in fact

supported its determination that

-6-

Caverly should be denied re-

classification from I-A to that of

a conscientious objector. Under

such circumstances, Caverly's

conviction cannot be sustained. ' “

The concurring judge in the Iverson case

simply stated:

"I concur in the result solely because I

feel reversal is required under Sicurella v.

United States, 348 U.S. 385, 391-392 (1955)

and Caverly v. United States, 429 F 2d 92, 95,

(CA 8, 1970). Specifically, it is my view that

reversal is in order because it cannot be deter-

mined which of the two grounds the local board

applied in denying conscientious objector status

to the Defendant. "

The Caverly case was cited by the Petitioner

in his brief to the Fifth Circuit and was strenu-

ously argued to the Fifth Circuit panel which

heard the appeal. However, the opinion of the

Fifth Circuit utterly fails to mention or consider

the Eighth Circuit holding which is directly in

conflict with its own.

The Fifth Circuit's opinion seeks vaguely

to distinguish from the present case the holdings

of the United States Supreme Court in Sicurella

v. United States, 348 U.S. 385, 75 S Ct. 403, 99

L. Ed. 436 (1955), and Clay v. United States,

403 U.S. 698, 91 S Ct. 2068, 29 L. Ed. 2d 810

(1971). The Fifth Circuit points out that in

Sicurella and Clay the State Appeal Board based

its denial on a letter from the Attorney General

recommending denial for reasons, some of

which were impermissible. The Fifth Circuit

-7-

. PANS Bs

—

opinion states: "In both cases, the receipt of

that letter was followed by the Board's denial

of the application without any reason stated; and

in both, the Court found the Department's letter

to be based, in part, upon impermissible

grounds. '

The Fifth)Circuit's opinion ignores the

fact that a Board which denies a claim and bases

its denial upon partly impermissible reasons is

no different from a Board which follows a letter

recommending denial of a claim basing the

recommendation partly on impermissible rea-

sons.

The attempt to distinguish Clay and Sicu-

rella is vague indeed because logically no

distinction exists.

The Eighth Circuit in Caverly and later in

Iverson had no difficulty in finding that Sicurella

required reversal when one of the reasons stated

by the Local Board was impermissible. Yet the

Fifth Circuit has not even seen fit to face and

discuss the contrary holding of the Eighth Cir-

suit Court of Appeals.

Petitioner urges that under the authority

of Clay and Sicurella, as correctly applied by

the Eighth Circuit in Caverly and Iverson,

Petitioner's conviction must be reversed. Peti-

tioner will later in this Petition demonstrate that

none of the reasons stated by the Local Board

for denying Petitioner's claim is legally per-

missible. However, under Clay, Sicurella,

Caverly, and Iverson, the legal impermissibil-

ity of only one of these reasons is sufficient to

require reversal.

-8-

_—

2. None of the reasons stated by the Local

Board were valid reasons for denying Petitioner's

claim.

A. Being associated with the Bahai'i

Community, a peaceful and religious organiza-

tion, is not a legitimate reason to deny Petitioner

his claim. The fact cited by the Board in sup-

port of its finding of insincerity is that Petitioner

“was recently associated with the Bahai'i Com-

munity." Exh. 58. Since the Bahai'i Community

is a religious-- pacifist organization, it is dif-

ficult to understand how Petitioner's association

with it leads to the conclusion that his pacifist

beliefs are insincere. App. 62. If anything,

his being a member of this association is further

proof of his belief in pacifism.

It is reasonable to conclude from the

Board's bald statement quoted above that either

the Board did not know that the Bahai'i Com-

munity is a religious--pacifist organization or

the Board entertained some prejudice against

the organization and its members.

The Fifth Circuit acknowledged that this

was not a legitimate ground.

B. Petitioner's delay in claiming con-

scientious objector status is not a legitimate

reason to deny his claim.

Another reason listed by the Board to

support its finding of insincerity was that "the

registrant made a late claim since he requested

the I-0 conscientious objector classification

after he refused to take the step forward for

induction."" Exh. 58. The presentation of a

PEI TH LT GEOL EIN EE LIE

~~

conscientious objector claim for the first time

to the officers at the induction center rather

than the local board has been held to be legally

insignificant on the ground that a “legally un-

tutored registrant should [not] be penalized for

his failure to distinguish" between the local

board and the officers at the induction center.

United States v. Stafford, 389 F. 2d 215, 218

(2d Cir. 1968).

The facts of Petitioner's case, however,

go far beyond a failure to distinguish between

two agencies. Mary Brown, the Chief Execu-

tive Secretary of the Local Board No. 40, was

not only Petitioner's Aunt, but she undertook

to advise him that because he was a member of

the sect like the Jehovah's Witnesses, he could

not be a conscientious objector. App. 58. She

had expertise and authority in Selective Service

matters so that Petitioner, very naturally and

reasonably, relied upon the advice she offered

concerning his Selective Service classification.

App. 57. Simply stated, she told him on a few

occasions that he did not meet the legal require-

ments of a conscientious objector and, there-

fore, he should not bother to apply. App. 55-57.

He heeded her advice. Nevertheless, when he

reported for induction the first time, he realized

that his conscience would not permit him to

submit to induction regardless of whether he

qualified legally as a conscientious objector.

App. 56; Exh. 38. Indeed, in Petitioner's letter

to the State Director of the Selective Service

System written after his refusal, he states, “I

do not wish to go to jail, but if 1 am to choose

between serving in the Armed Forces and jail, I

must choose jail.‘ Exh 82. Justice Black has

characterized such an attitude as evidence of

-10-

';

the depth and sincerity of a conscientious ob-

jector's convictions: "for them that voice ( of

conscience) was so loud and insistent that both

men preferred to go to jail rather than serve in

the Armed Forces. “ Welsh v. United States,

1970, 398, U.S. at 333, 26 L. Ed. 2d at 317.

Helwick v. Laird, 438 F. 2d 959, 965, (5th

Cir. 1971).

Petitioner was conscientiously opposed to

wars but because of the information and advice

he had received from his Aunt Mary, Clerk of

his Local Board, he had not presented his be-

liefs to the Board prior to his induction. In

United States v. Burns, 431 F. 2d 1070 (10th Cir.

1970), the registrant received similar information

and advice from a clerk at his local board but the

clerk was in no way related to him or known to

him other than as a board clerk. Burns was told

that because he was raised a Catholic, he could

not qualify. Id. 1070. Similarly, Mary Brown

had led Petitioner to believe that only members

of the sects like Jehovah's Witnesses could

qualify. App. 55. The Court held that mis-

leading and incorrect information received from

the clerk of the board was a sufficient excuse for

lateness of Burns’ conscientious objector claim.

Burns, 1074. Burns’ conviction was reversed.

See also Peterson v. Laird, 3S.S.L.R. 3210

(N.D. Cal. 1970) where the registrant was not

allowed to file SSS Form 150 on the ground that

he was not a member of a certain religious sect.

And, in United States v. Fisher, 442 F. 2d

109 (7th Cir. 1971) Fisher's conviction was re-

versed because a clerk of his board falsely told

him that nothing new had been added to his file

and that another clerk was the appeals agent.

-ll-

SER EELS SEER LEMS LOPES SES tae eee

a.

The lateness of the claim, then, was not

a legitimate reason for the Board to deny Peti-

tioner's claim.

C. Considering Navy enlistment in

order to avoid combat service to which Petitioner

is conscientiously opposed is not inconsistent

with his conscientious objector claim.

Another reason relied upon by the Board

in support of its findings of incincerity is that

“registrant tried to enlist in the Navy." Exh.

58. In his answer to questions number 4 on

SSS Form 150, Petitioner states that he inquired

about Navy enlistment in the belief that in the

Navy he would avoid armed combat. Exh. 86.

He testified at his trial that as a result of his

investigation in Navy enlistment he found the

Navy geared for war and service in it would be

in conflict with his beliefs. App. 68. A number

of authorities have held that application and en-

listment in Officer Candidate School and parti-

cipation in college ROTC do not provide a basis

in fact for a finding in insincerity. United States

v. Wingerter, 423 F. 2d 1015 (5th Cir. 1970);

Hand v. Laird, 3S.S.L.R. 3298 (N.D. Calif.

1970); Rautenstrauch v. Laird, 313 F. Supp.

1970 (W.D. Tex. 1970).

In Petitioner's situation, his inquiry into

Navy enlistment must be considered reasonable.

He believed he had two alternatives -- induction

into an Army deeply involved in armed conflict

which was against his convictions or being in-

carcerated in a penitentiary. It does not cast

doubt upon his sincerity that Petitioner sought

and examined the alternative of Navy enlistment

in order to determine whether it was consistent

-12-

w—

with his beliefs. Indeed, the examination of this

alternative was a very natural and intelligent

approach to the situation. He thereby tested the

limits of his belief and discovered himself to be

more resolved in his opposition to all wars. Thus,

the only alternative open to him was to refuse in-

duction and accept the consequences. Exh. 82.

This was not a legitimate reason for the

Board to deny his claim.

D. The letter which purports to convey

the thoughts of the father of the Petitioner but,

which, in fact, was written by others, and signed

by the father in a state of intoxication is not a

fact on which the Local Board can base its decision.

The fourth reason for the board's finding of

insincerity is the “letter in this file from the

Father who states he had no knowledge of his son

being a conscientious objector." Exh. 58. The

unrebutted evidence introduced at Petitioner's

trial was that this letter was written by the Peti-

titioner's grandfather at the request of his Aunt

Mary Brown, Clerk of the Local Board No. 40,

and signed by his father, George W. Brown,

while he was in a state of intoxication so severe

that he did not know what he was Signing. App.

60-61, 65. These facts were brought to the

attention of officials of the State Headquarters

of the Selective Service System in a letter dated

April 20, 1971, requesting a reopening of Peti-

tioner's Selective Service classification. Exh. 17-

21. Enclosed with the letter was a statement by

George Wesley Brown impeaching the validity of

the letter. Exh. 21. Nevertheless, Petitioner's

Classification was not subsequently reopened.

a

There is no legal way in which a hoax can be

used to justify a finding of insincerity. Moreover,

the fact that a clerk of the local board played a

part in, indeed, instigated the hoax makes its use

by the board even more insidious.

In Parr v. United States, 272 F 2d 416 (9th

Cir. 1959) the court discounted the derrogatory

statement of an official of the Watchtower Bible

and Tract Society concerning the registrant on

the grounds that neither the board or the court

could know the standards by which the official

gauged the conduct which he labeled "spiritually

sick...." Id. 420. In contrast to the present

case, there was no evidence in Parr that the

official's statements were anything but what he

truly believed. If statements of what a person

truly believes can be discounted on the ground

that the person may be applying a very strict

moral and religious code to the conduct of a

registrant, then the falsified statements in the

letter purporting to convey the opinion of George

Wesley Brown must be discounted.

CONCLUSION

The attempt of the District Court to cite

additional reasons of its own for rejecting Peti-

tioner's claim cannot be considered. "It is

well to remember that it is not for the courts to

sit as super draft boards, substituting their

judgments on the weight of the evidence for

those of the designated agencies." Witmer v.

United States, 348 U.S. 375 (1955).

Even if one or more of the reasons stated

by the Local Board was legitimate, there is no

way to know what weight of the evidence was

- 14-

a!

‘

vatinaag

ae

given by tte Board to the illegitimate reasons

or whether the Board might have decided other-

wise, had it considered only legitimate reasons.

It is respectfully submitted that the reli-

ance by the Local Board at least partly on er-

roneous reasons in denying Petitioner's claim

requires reversal. This Petition for Certiorari

should be granted.

Respectfully submitted,

Vaan ke:

MARK F. HOWELL

508 Southwest National

Bank Building

El Paso, Texas 79901

ATTORNEY FOR

PETITIONER

-15-

ny AAG RE SIS RG fy SHO MARR RN EON SAE ELIA RIE RA PRR MRT ED

SESS

a

APPENDIX A

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN WESLEY BROWN,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

(March 15, 1972)

Before BELL, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge: John Wesley Brown ap-

peals his nonjury conviction of failing to submit to in-

duction into the armed forces. 50 U.S.C.A. App. § 462

(a). His sole defense was that his local board had un-

lawfully refused to classify him as a conscientious ob-

jector. After a full trial upon the merits, the district

judge found that there was a “basis in fact” for the

board’s action, Estep ». United States, 327 US. 114,

122, 66 S.Ct. 423, 427, 90 L.Ed. 567, 573 (1946), and con-

sequently adjudged Brown guilty. We affirm.

la

RE ae AEP eRe ere AALAND RTL He

ae

Brown first registered with his local board on May

18, 1967, but made no claim to conscientious objector

status at that time, although he was shortly thereafter

classified 1-A. He later applied for and received a 2-S

undergraduate student deferment, because he had be-

come a freshman at the University of Texas. He re-

tained this deferment until he was placed on scholastic

probation and failed to register for the spring 1970 se-

mester. He was then reclassified 1-A and ordered to

report for armed forces physical examination. He sub-

mitted a “current information questionnaire” on May

6, 1970, which indicated that he had completed two

years of college, but still made no conscientious objec-

tor claim. Brown was ordered to report for induction

July 20, 1970, and on that date indicated to officials

in charge that he would refuse induction on the ground

that he was opposed to all war. On August 4, 1970,

he first formally notified his local board of his claim,

stating: “I became aware that I am a conscientious

objector once I was notified of induction. I would like

to request a 150 form to file for conscientious objector.”

2 USA. v. JOHN WESLEY BROWN

Brown thereupon filed his SSS Form 150 with the

local board, and also forwarded a letter to the State

Director of the Selective Service System, in both of

which he outlined his religious beliefs and stated his

opposition to war in all forms. The substantive content

of those beliefs is not at issue here. Apparently as a

result of his letter, the State Director, pursuant to 32

C.F.R. § 1625.3, requested that the local board reopen

Brown’s classification and indicated that such reopen-

ing would cancel the induction order. The local board

thereupon notified Brown that he should appear for

2a

—

U.S.A. v. JOHN WESLEY BROWN | 3

a personal interview on August 20, 1971. At that inter-

view, Brown indicated that: he had started thinking

about his claim several years before but had not

brought it up with the board because he thought it

was not based on “religious grounds”; he was attend-

ing meetings of the Baha’i faith; he had tried to enlist

in the Navy because he felt the Navy was “away from

the conflict”; he did not know what he would do if

someone were to attack this country; and that he could

not explain why he did not realize until he went for

induction that he was a conscientious objector. The

board then indicated it needed more information, and

received from Brown a list of family, friends, and other

references who might be helpful in assessing his be-

liefs. The board contacted the six persons on that list,

asking for any personal knowledge each had concern-

ing Brown. Three of these responded; one indicated he

had not sufficient information upon which to base any

judgment as to Brown’s beliefs, and the other two lent

Some support to the claims Brown had made. The

board also wrote Brown’s father asking that he “give

any information which would confirm or refute your

son’s claim that he is a conscientious objector.” The

reply from Brown’s father, George W. Brown, besides

indicating displeasure with some of John’s friends at

the University, also stated that John “has never been

religious, and as far as I know he has no claim to

being a conscientious objector.” After reviewing all

information before them, giving special consideration

to all letters submitted, the board unanimously con-

cluded that Brown was not sincere and denied his re-

quest.

4 USA. v. JOHN WESLEY BROWN

The board took final action on Brown’s application

on October 15, 1970, by deciding not to reopen his clas-

sification after having received an additional letter in

his behalf. The board members assigned the following

reasons for denying the claim:

1) the lateness of the claim

2) Brown’s attempt to enlist in the Navy

3) his recent association with the Bala’i com-

munity

4) the letter from his father

The board’s decision was unanimously affirmed by the

State Appeal Board on November 13, 1970, and Brown

was ordered to report for induction January 13, 1971.

He at that time again refused to take the symbolic

step forward, and the prosecution which is the subject

of this appeal ensued.

Two separate attacks are made here by Brown in

his effort to undermine the board’s classification. He

first argues that none of the four reasons listed by

the board furnishes a basis in fact for the action taken.

Concerning the lateness of his claim, he points out that

he would not have had reason to apply for a 1-O classifi-

cation until he had lost his lower 2-S classification, and

¢gannot: be penalized for not doing so;' that late-

ness in and of itself will not support a finding of insin-

cerity;? and that his undisputed testimony in the court

below shows that the sole reason for his lateness was

tUnited States v. Stetter, 445 F.2d 472 (5th Cir. 1971)

2Rothfuss v. Resor, F.2d —__._ (5th Cir. 1971) [No. 30850,

June 15, 1971].

4a

USA. v. JOHN WESLEY BROWN 5

his reliance upon the erroneous advice he received

from his aunt, the clerk of the local board, who told

him he could not qualify for conscientious objector stat-

us. As to the attempt to join the Navy, Brown contends

that this is not necessarily inconsistent with his pro-

fessed beliefs, and that indeed, it was precisely the

type of possibility an intelligent person might pursue

when his only other alternatives were either prison,

or a military commitment his conscience could not

abide. Third, Brown asserts that the board must have

either been unaware that the Baha’i Community is a

religious-pacifist organization, or was prejudiced a-

gainst its membership since, if anything, his participa-

tion therein substantiates his claims. Finally, Brown

states before us, as he did at the trial below, that the

letter from his father was actually prepared by his

grandfather and the same aunt who misled him as

to his right to a 1-O classification, and that the two

of them cajoled his father into signing the letter while

he was intoxiccted.

The courts are not the super draft board that those

who are unsuccessful before their board would have

them be. The orderly processing of men into our armed

forces — and more importantly, a clear Congressional

mandate — will not allow it. Absent the application

of some erroneous limiting procedure — a factor not

present here, we look only to the record developed be-

fore the board to decide whether there was a basis

in fact in that record for its decision that Brown was

insincere.

5a

Be Fe PRE, OS ERR FE BP

6 U.SA. v. JOHN WESLEY BROWN

Though the underlying policy and the law indeed af-

ford the board an expansive discretion, it is never-

theless less than an unbridled one. There must be

“hard, provable, reliable facts” in the record which

provide a basis for disbelieving Brown* — facts which

so substantially blur the picture he has painted as to

cast doubt on his sincerity. Such facts are present

here.

The timing of Brown’s application was certainly such

as to cast doubt upon his veracity and sincerity, and

be worthy of the board’s consideration. Rothfuss v.

Resor, supra n. 2 at 11; United States v. Henderson,

411 F.2d 224 (5th Cir. 1969). It does not avail Brown

to argue that Rothfuss forbids denials based solely up-

on the timing of an application. Brown’s belated reali-

zation of his conscientious objector status did not occur

in a vacuum. It was the coalescence of that fact with

several others that caused his application to be greet-

ed with unanimous skepticism.® The district judge

summarized those facts in the following fashion: “it

would appear to the Court that due to the shallow,

uncertain nature or basis of the Defendant’s claim,

the sudden acquisition of belief that synchronized so

perfectly with the Defendant’s poor scholastic record

and subsequent loss of his student deferment, as well

as his attempt to enlist in the Navy to avoid combat,

2Helwick v. Laird, 438 F.2d 959, 963 (5th Cir. 1971).

4Kessler v. United States, 406 F.2d 151, 156 (5th Cir. 1969).

SWhile Rothfuss bars sole reliance on untimeliness to prove in-

sincerity, it clearly indicates that tardiness coupled with other

factors such as an attempt to apply for noncombatant duty,

could be sufficient.

6a

U.S.A. v. JOHN WESLEY BROWN 7

and the other facts shown in the Board’s file, the Court

accordingly finds that there is a substantial basis in

fact for the denial of the request for classification by

the Board of 1-0.”

We agree with Brown that he should not be faulted

for not applying for 1-O status while he was allowed

a higher 2-S deferment. However, there is nothing in

the record to indicate that Brown was penalized for

this delay.

We do not find Brown’s explanation based upon the

advice he received from his aunt sufficient to over-

come the adverse inference the board drew from the

May to August delay in filing after he was reclassified

1-A. Realizing that this circuit has been less than fully

receptive to arguments based upon the misleading of

a registrant by the Selective Service, United States

v. Taylor, F.2d (5th Cir. 1971), reh. den.

F.2d ___, Brown urges us to look to decisions of other

circuits. However, his situation is completely unlike

any of the cases he relies upon. See, e.g., United States

v. Fisher, 442 F.2d 109 (7th Cir. 1971); United States

v. Burns, 431 F.2d 1070 (10th Cir. 1970). All those cases

involve registrants who, due to inexact Selective Serv-

ice guidance, failed to file any claim at all, or to pursue

a timely appeal. But Brown was allowed to make his

conscientious objector claim, even though it came long

after the board was required to afford him such an

opportunity. it then became incumbent upon him to

clearly establish his right to the exemption he sought,

including one of the most crucial elements of his claim

— his own sincerity.

8 USA, v. JOHN WESLEY BROWN |

It simply cannot be said that Brown was not fully

on notice, after having received what amounted to a

special dispensation to make his claim, that his tardi-

ness would be a critical issue before the board. We

hold that the burden was then upon him to affirmative-

ly present for the board’s evaluation the facts concern-

ing his conversation with his aunt. Having failed to

do this, he cannot now fault the board’s decision by

imputing to them notice of these familial exchanges.

Any other decision would only serve to “frustrate ad-

ministration of the Selective Service System by permit-

ting a registrant first to stand aloof from the process

designed to bring such possibly determinative facts

to light ... and then to challenge the firmness of the

factual foundation for his draft board’s discretionary

actions.” United States v. Houston, 433 F.2d 939, 941

(2nd Cir. 1970), quoted with approval in United States

v. McDuffie, 443 F.2d 1163, 1165 (5th Cir. 1971). As the

Supreme Court said in McKart v. United States, 395

U.S. 185, 198 n 15, 89 S.Ct. 1657, 1665 n. 15, 23 L.Ed.2d

194, 206 N. 15 (1969), “the smooth functioning of the

system may well require that challenges to classifica-

tions based upon facts not properly presented to the

board be barred.” Though this board had no affirma-

tive duty to seek out information that might mitigate

the obvious doubt that lateness had cast upon Brown’s

sincerity, McCoy v. United States, 403 F.2d 896, 899-900

(5th Cir. 1968), -we note that at his interview he was

specifically asked to explain why he had not realized

until induction that he was a conscientious objector,

but he could not do so. We conclude that the circum-

stances surrounding Brown’s late claim, in light of the

other facts the board knew when it rendered its de-

8a

>

U.S.A. v. JOHN WESLEY BROWN 9

cision, formed a basis in fact for its denial of the appli-

cation.

We deal only briefly with the three other “reasons”

offered by the board in support of its decision not to

reopen Brown’s classification. The explanation Brown

offered to demonstrate a consistency between his be-

liefs and his attempt to join the Navy is a plausible

one. But it is not the only one, and we decline to dis-

turb the board’s judgment that the context in which

the attempt was made was evidence of insincerity.®

As to the issue of whether or not the letter from

Brown’s father was actually composed by him, we

pause only to note that the dispute was never present-

ed to the board. Apparently, the district judge per-

ceived no reason to consider it. We refuse to be the

first to assess the truth in this episode. The board’s

final decision in which the letter was specifically men-

tioned, was rendered October 15, 1970, and even ac-

knowledging that some reasonable time should be al-

lowed to demonstrate the reliability of evidence enum-

erated therein, the attack here came far too late.

Brown’s counsel did not alert the board to the possible

speciousness of this letter until April 21, 1971, three

weeks after Brown had been indicted, when he moved

the board to reopen his classification. Clearly this chal-

lenge after the process had become complete should

be barred. It is imperative to the functioning of the

local board that this court not consider de novo the

classifications that this body makes, but only review

those facts that were properly presented to it in order

6See note 5, supra.

——— LPI MLE LE LILES ELLEN EE FORE TLE AIEEE alias

—

10 U.S.A. v. JOHN WESLEY BROWN

that we might determine whether they form a basis

for the action taken. Courts cannot consider and assess

information Brown should have, but did not timely

bring to the Board’s attention. Finally, we agree with

Brown that his association with the Baha’i community

cannot support the board’s finding of insincerity. We

are at a loss as to why the board found this fact sig-

nificant at all; however, as is discussed below, we do

not find that the board’s stated reliance thereon vi-

tiates the remaining valid grounds for its decision.

In his second attack upon the board’s action, Brown

contends that if any one reason it gave for the denial

of his application is invalid, then no matter how many

valid reasons are offered, the denial cannot stand. He

attempts to support this position by citing Clay

v. United States, U.S. ——, 91 S.Ct. 2068, 29 L.Ed.

2d 810 (1971) and its reliance upon Sicurella v. United

States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955),

but they do not lend any support to this proposition.

In both Clay and Sicurella, the Department of Justice

forwarded a letter to the State Appeals Board recom-

mending that the particular registrant’s request for

conscientious objector status be denied. In both cases,

the receipt of that letter was followed by the Board’s

denial of the application without any reason stated;

and in both, the Court found the Department’s letter

to be based, in part, upon impermissible grounds. Since

the Board in Clay and Sicurella made no statement

of the reasons for its action, the Court had no way

of knowing whether the denial was based upon the im-

permissible grounds suggested by the Department

rather than on some unexpressed legitimate ground.

10a

—

U.S.A. v. JOHN WESLEY BROWN 11

Concluding that the risk was too great that the classifi-

cations and subsequent convictions for refusing induc-

tion were based on the department’s invalid reasons,

the Court reversed.

[We feel that this error of law by the Depart-

ment, to which the Appeal Board might na-

turally look for guidance on such questions,

must vitiate the entire proceedings at least

where it is not clear that the Board relied on

some legitimate ground. Here, where it is im-

possible to determine on exactly which

grounds the Appeal Board decided, the integ-

rity of the Selective Service System demands,

at least, that the Government not recommend

illegal grounds. United States v. Sicurella, su-

pra at 392, 75 S.Ct. at 406. (emphasis added)

Here, the local board stated its reasons; we can de-

termine exactly which grounds it relied upon. Specu-

lation is unnecessary. It is clear that all save one of

the stated reasons were legitimate grounds. Dismiss-

ing that one legitimate ground, we are satisfied the

others are sufficient to provide a basis for the conclu-

sion that Brown was insincere in his professed beliefs.

Inasmuch as Brown has demonstrated no error in

the decision below, his conviction is

AFFIRMED.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.

APPENDIX B

50 U.S.C. App. Section 462 (a) Offenses and penalities.

(a) Any membcr of the Selective Service System or any

other person charged as herein provided with the duty of carrying

out any of the provisions of the title [sections 451, 453, 454,455,

456 and 458-471 of this Appendix], or the rules or regulations made

or directions given thereunder, who shall knowingly fail or neglect

to perform such duty, and any person charged with such duty, or

having and exercising any authority under said title [said sections],

rules, regulations, or directions who shall knowingly make, or be

a party to the making, of any false, improper, or incorrect regis-

tration, classification, physical or mental examination, deferment,

induction, enrollment, or muster, and any person who shall know-

ingly make, or be a party to the making, of any false statement or

certificate regarding or bearing upon a classification or in support

of any request for a particular classification, for service under the

provisions of this title [said sections], or rules, regulations, or

directions made pursuant thereto, or who otherwise evades or re-

fuses registration or service in the armed forces or any of the

requirements of this title [said sections], or who knowingly

counsels, aids, or abets another to refuse or evade resitration or

service in the armed forces or any of the requirements of this

title [said sections], or of said rules, regulations or directions, or

who in any manner shall knowingly fail or neglect or refuse to per-

form any duty required of him under or in the execution of this

title [said sections], or rules, regulations, or directions made

pursuant to this title [said sections], or any person or persons

who shall knowingly hinder or interfere or attempt to do so in any way,

by force or violence or otherwise, with the administration of this

title [said sections], or the rules or regulations made pursuant thereto,

or who conspires to commit any one or more of such offenses, shall

upon conviction in any district court of the United States of compe-

tent jurisdiction, be punished by imprisonment for not more than five

years or a fine of not more than $10,000, or by both such fine and

imprisonment, or if subject to military or naval law may be tried

by court martial, and on conviction, shall suffer such punishment

as a court martial may direct. No person shall be tried by Court

martial in any case arising under this title [said sections] unless

such person has been actually inducted for the training and service

prescribed under this title [said sections] or unleshe is subject to trial

by court mertial under laws in force prior to the enactment of this

title [June 24, 1948]. Precedence shall be given by courts to the

trial of cases arising under this title, and such cases shall be

advanced on the docket for immediate hearing, and an appeal from

the decision or decree of any United States district court or

United States court of appeals shall take precedence over all other

cases pending before the court to which the case has been referred.

13a

APPENDIX C

The Selective Service Act, 50 U.S.C. App. Section 456 (j)

(j) Nothing contained in this title [sections 451, 453, 454,

455, 456 and 458-471 of this Appendix] shall be construed to re-

quire any person to be subject to combatant training and service in

the armed forces of the United States who, by reason of religious

training and belief, is conscientiously opposed to participation in

war in any form. As used in this subsection, the term "religious

training and belief" does not include essentially political, sociolog-

ical, or philosophical views, or a merely personal moral code.

Any person claiming exemption from combatant training and service

because of such conscientious objections whose claim is sustained

by the local board shall, if he is inducted into the armed forces under

this title, [sections 451, 453, 454,455,456, and 458-471 of this

Appendix], be assigned to noncombatant service as defined by the

President, or shall, if he is found to be conscientiously opposed to

participation in such noncombatant service, in lieu of such induction,

be ordered by his local board, subject to such regulations as the

President may prescribe, to perform for a period equal to the per-

iod equal to the period prescribed in section 4 (b) [section 454 (b)

of this hasontial ouch civilian work contributing to the maintenance

of the national health, safety, or interest as the local board pur~

suant to Presidential regulations may deem appropriate and any

such person who knowingly fails or neglects to obey any such order

from his local board shall be deemed, for the purposes of section

12 of this title [section 462 of this Appendix], to have knowingly

failed or neglected to perform a duty required of him under this

title [sections 451,453, 454,455,456 and 458-471 of this Appendix].

l4a