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United States v. Corliss

decided: July 22, 1960.


Author: Friendly

Before CLARK, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

These are appeals from judgments of the District Court for the Southern District of New York convicting appellants, who claim to be conscientious objectors, of refusing to submit to induction into the armed forces of the United States, 50 U.S.C.A.Appendix § 462. Each appellant was sentenced for a year and a day. The facts are stated in Judge Murphy's reasoned opinion, 173 F.Supp. 677 (1959); we shall refer only to such as are required for disposition of the appeals.

All three cases followed the same general course - classification or reclassification of the registrant as I-A by the Local Board after personal appearance by the registrant; request for appeal; investigation by the Federal Bureau of Investigation; hearing before a hearing officer of the Department of Justice, with a resume of the FBI report having previously been furnished; adverse report by the hearing officer to the Department; adverse recommendation by the Department to the Appeal Board; I-A classification by the Appeal Board; refusal of the registrant to be inducted; indictment, trial to the judge, and conviction. A point common to all three appeals was an order of the District Court, Alexander Bicks, J., quashing subpoenas whereby appellants sought production of the investigative reports of the FBI. Since the issue whether persons in appellants' position were entitled to discovery of such reports was pending before the Supreme Court in Gonzales v. United States, 80 S. Ct. 1554, decided June 27, 1960, we deferred decision pending resolution of that issue there.*fn1 Appellants do not claim the resumes were inaccurate, and the Department's recommendations were based on materials in appellants' Selective Service files, the hearing before the hearing officer, and, in a minor degree, uncontroverted facts in the resumes. The cases thus fall within the rule of non-production of the FBI investigative reports laid down in Gonzales and not within the exception, there stated, of "circumstances in a particular case where fairness in the proceeding might require production."

The principal questions remaining, indeed the only ones in Corliss' and Heise's appeals, are whether there is any basis in fact to sustain the Appeal Board's denials of appellants' claims that "by reason of religious training and belief" they are "conscientiously opposed to participation in war in any form," 50 U.S.C.A.Appendix § 456(j). Such an inquiry is not easy. For though "the state of a man's mind is as much a fact as the state of his digestion," Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (1885), it is a lot less susceptible of objective determination. In discharging this unenviable task, courts must be mindful that "The range of review is the narrowest known to the law," Blalock v. United States, 4 Cir., 1957, 247 F.2d 615, 619; that, apart from denial of procedural fairness, they may reverse the Appeal Board "only if there is no basis in fact for the classification which it gave the registrant," Estep v. United States, 1946, 327 U.S. 114, 122-123, 66 S. Ct. 423, 427, 90 L. Ed. 567; and that "any fact which casts doubt on the veracity of the registrant is relevant," Witmer v. United States, 1955, 348 U.S. 375, 381-382, 75 S. Ct. 392, 396, 99 L. Ed. 428.


Under these rigorous tests Heise's conviction must be affirmed. Heise was born November 12, 1932. He had been brought up as a Lutheran. In his initial registration questionnaire, filed October 24, 1951, he did not claim to be a conscientious objector. He was classified I-A, thereafter found physically unqualified and classified IV-F until February 18, 1952, then reclassified I-A on February 19, 1953. He applied for a student deferment, which he received on April 1, 1953, valid until February 1, 1954; on February 4 he was reclassified I-A. On February 8, 1954 he requested "a deferment for at least another year in order to finish my studies" at New York Community College, and asked for a hearing. This was held on February 18, 1954; the Board voted 4-0 to classify Heise as I-A. Its summary, after referring to the request for a student deferment, adds "States that he has been taking bible course studies with Jehovah's Witness group since last August."; Heise's summary puts the two grounds in the opposite order. In any event, he asked for and received a conscientious objector form (SSS Form 150).

Heise returned the form on February 27. His letter of transmittal requested a reopening of his classification "because of new evidence that would affect my status. This new evidence could not be submitted earlier because my beliefs and convictions were different. Through Bible studies and associations with Jehovah's witnesses I now have conscientious and sincere objections to participating in combatant and non-combatant military service." There followed a several page description of the Witnesses, replete with scriptural and historical references, but rather silent as to Heise's personal beliefs save for a statement of his having been impressed by attendance at the Witnesses' assembly at the Yankee Stadium in July, 1953. The letter ended by enclosing a copy of the Watchtower magazine of February, 1951, and, promising "More evidence will be supplied to you in the near future." In answering the question on Form 150 where he had received the training and acquired the belief relied on for exemption, he stated he had been "Listening to radio station WBBR for over a year and associating with Jehovah's Witnesses," and "In August, 1952, I started to attend Bible studies and other meetings at Kingdom Hall, 526 86th St., beginning August, 1953." He stated, in answer to another question, that he had "also been preaching from door to door" but that he hadn't publicly expressed his views concerning non-participation in war. A letter from three Jehovah's Witnesses ministers attested that Heise had been regularly attending study and congregational meetings since August, 1953, and "has been actively expressing his status as one of Jehovah's Witnesses from the month of November, 1953." A hearing before the Local Board on March 25, 1954, revealed that Heise had been baptized as a Witness on March 13; again the Board voted 4-0 for I-A.

The only new fact of significance added by the FBI investigation was that Heise had told instructors at the Community College in November, 1953, that he was leaving school to commence studies for the ministry but changed his mind one day later in favor of completing his course. Before the hearing officer, although Heise asserted the religious basis of his conscientious objection to be the Bible, he "was unable to point out any passage of the Bible to sustain his beliefs and constantly referred to several pages of typewritten notes which he brought with him and which apparently were a copy of a letter sent to the Local Board under date of February 27, 1954." The hearing officer "was not favorably impressed as to the registrant's sincerity in making his claim."

It would seem that if Heise had, in fact, become a convinced conscientious objector in November, 1953, 32 C.F.R. § 1625.1(b), which we quote in the margin*fn2 required him promptly to advise the Local Board, see Williams v. United States, 9 Cir., 203 F.2d 85, 87-88, certiorari denied 1953, 345 U.S. 1003, 73 S. Ct. 1149, 97 L. Ed. 1408; United States v. Vincelli, 2 Cir., 1954, 215 F.2d 210, 213. Not only did he fail to do this, but his initial reaction to the I-A classification on February 4, 1954, was to request an extension of his student deferment on February 8 and again on February 18, and on February 27 he wrote the Local Board that the evidence as to his beliefs "could not be submitted earlier." The Board was thus warranted in concluding that Heise's conscientious objections had not ripened as late as February 8, even though Heise may have become interested in the Witnesses in a general way some time before. Something may, indeed, have happened to Heise between February 8 and February 18 or 27, but the Board was not bound to find it to be what Heise claimed. Sudden accessions of belief may be utterly sincere, as the memorable one on the Damascus road; but they seldom synchronize so perfectly as Heise's with external facts making them convenient, and they normally manifest themselves in expressions more deeply personal than his. The Appeal Board might likewise have regarded the concatenation of Heise's baptism and the second hearing as not wholly adventitious. There were thus sufficient "objective facts before the Appeal Board to * * * cast doubt on the sincerity of his claim." Witmer v. United States, supra, 348 U.S. at page 382, 75 S. Ct. at page 396; see United States v. Simmons, 7 Cir., 1954, 213 F.2d 901, 905-906, reversed on other grounds 1955, 348 U.S. 397, 75 S. Ct. 397, 99 L. Ed. 453; Campbell v. United States, 4 Cir., 1955, 221 F.2d 454.


Corliss' appeal presents a quite different case. Here there was no such belated conversion as in the cases of Heise or, as we shall see, of Herold. When Corliss filed his classification questionnaire on April 2, 1952, shortly after becoming 18, he claimed to be a conscientious objector and requested Selective Service Form 150. The Local Board immediately classified him I-A. On November 30, 1953, the Board mailed him the Form 150 which he duly returned. A statement annexed to the Form recited that in November, 1945, a Jehovah's Witness came to the Corliss home and told Corliss' parents about the Witnesses' faith; that Corliss' father immediately started home Bible study, conducted by a minister of the Witnesses, at which the entire family studied; that within weeks they began to attend public sermons and Watchtower study on Sunday afternoons and by the summer of 1946 were attending theocratic ministry school and service meetings on Friday nights; that in June, 1952, his father was baptized and became a Jehovah's Witnesses' minister; and that Corliss was pursuing studies intended to enable him to do so. The Form was supported by letters from two Jehovah's Witnesses ministers and from two friends. A hearing was held on February 2, 1954, at which Corliss appeared; the Board voted 4-0 to adhere to the I-A classification. The FBI investigative report confirmed that "references believe that registrant is a sincere and active adherent of the Watchtower Bible and Tract Society"; no adverse information was developed save for the admitted fact that Corliss had not himself been baptized in the Witnesses' faith.

The hearing officer's report states that Corliss, although admitting that he was not yet an ordained minister of the Witnesses, "asked for his conscientiousobjector classification because he should devote more time to Jehovah's work of preaching the Gospel." If this had stood alone, Corliss' claim would not have been made out, Tomlinson v. United States, 9 Cir., 1954, 216 F.2d 12, 18, certiorari denied 1955, 348 U.S. 970, 75 S. Ct. 528, 99 L. Ed. 755. However, the report further recites testimony by Corliss "that long before, when he was seven or eight years old, he had decided he would not go into the army and he realized that the time had come to do something about it"; that he had first thought he would go into some noncombatant branch but now "would not feel right about giving his allegiance even in that capacity as he owes his allegiance to God rather than to a nation." An unidentified accompanying witness stated that when Corliss "was confronted with the decision to serve, he was faced with the decision whether to bear arms and realized that it was wrong to kill"; "that he [the witness] felt that registrant is sincere but is confused; that the registrant does not want to kill or take part in worldly conflicts but would try to protect himself; that if he killed with intent to do so it would be held against him." The hearing officer found that while Corliss impressed him as "being sincere in his devotion to his religious sect and the principles for which it stands, he did not appear to have a genuine, personal conviction as to why he should not bear arms or participate in war."

In a letter dated July 16, 1956 to the Appeal Board following receipt of the adverse recommendation of the Department of Justice, Corliss developed, in much greater detail than theretofore, his belief that for him to desert God's spiritual army "and join this world in its fights would be disloyalty to God and Christ. It would deserve to be punished with destruction without any hope of life in the righteous new world." Dealing with the hearing officer's statement that he was not yet a baptized member or ordained minister, he explained that baptism was "an outward symbol or testimony before witnesses of the baptized ones complete, unconditional, dedication and agreement to do the will of Jehovah God"; and that "Up to this time I ...

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