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July 24, 1967

Maury ENGLANDER, Defendant

The opinion of the court was delivered by: FRANKEL


 FRANKEL, District Judge.

 This is a prosecution under 50 U.S.C.App. § 462(a) for refusal to submit to induction for combatant training as ordered by defendant's Selective Service System Local Board. The case has been tried by the court, sitting without a jury. Actually, however, there are no real factual disputes; decision turns ultimately upon a judgment of law as to the validity of the administrative decision denying defendant's claim to exemption as a conscientious objector.

 Defendant first registered with his Local Board in March of 1961. He claimed no exemption as a conscientious objector at that time, raising this question only some four years later, after he had been examined physically for induction. From November 1963, to February 1965, he was classified II-S, i.e., as a deferred student. In February 1965, he was given a I-A classification. On March 26, 1965, he reported for a medical examination, and was found fit for military service. On April 4, 1965, he was ordered to report for induction. Between the two latter dates, on March 30, 1965, he notified his Draft Board of his desire to appeal the I-A classification, and requested SSS Form 150 for submission of his claim to reclassification as a conscientious objector.

 In completing the form defendant answered "yes" to the question whether he believed in a Supreme Being. Expanding upon that answer, he stated, "I believe in God." He went on to write that he had been raised "in a Jewish household," and had been taught to believe "in an omnipotent, omnipresent God who has created all life and the Supreme Power in the Universe." He stated that he had never abandoned his beliefs and felt that his convictions "evolved from" and were "based on" the ideals "of the Judeo-Christian ethic." He said that his asserted conscientious opposition to war was based upon the foregoing beliefs; that he had developed as a personal judgment, so premised, the conviction that killing for any reason could not be justified; and that, while he had ceased participating in formal or organized religious activities, he traced ultimately to "the laws of God" his alleged convictions precluding either combatant or noncombatant service in the armed forces.

 The Local Board denied defendant's application, and he appealed. Having determined tentatively that defendant was not entitled to the exemption he sought, the Appeal Board followed the familiar procedure and forwarded his file for an advisory recommendation from the Department of Justice, 32 CFR § 1626.25(b). A hearing officer then made the customary investigation, preparing a resume which was later before the Appeal Board and is part of the record before this court. The resume followed the characteristic narrative pattern, including several unevaluated and unhelpful irrelevancies that could better be excised from such documents. *fn1"

 On July 25, 1966, the Department of Justice forwarded to the Appeal Board a copy of the resume together with its letter recommending that the conscientious objector claim be denied. The critical portions of this letter of recommendation for purposes of the prosecution read as follows:


"* * * The Hearing Officer reported that the registrant's witnesses believe the registrant to be sincere in opposing any form of war or violence. The Hearing Officer concluded that the registrant's conscientious objection is based not on religious training and belief but upon personal and moral belief, and he recommended that the conscientious-objector claim of the registrant be not sustained.


"The registrant made no claim of conscientious objection in his original Classification Questionnaire filed on March 27, 1961 nor until after he had lost the scholastic deferment which the local board gave him in November 1963, and until after he had been ordered to report for his Armed Forces Physical Examination in March 1965 and had been held qualified for military service on April 4, 1965. Sudden accessions of belief may be utterly sincere as the memorable one on the Damascus road but they seldom synchronize so perfectly with external facts making them convenient. United States v. Corliss [2 Cir], 280 F.2d 808, cert. denied, 364 U.S. 884 [81 S. Ct. 167, 5 L. Ed. 2d 105]. The burden of proving his conscientious-objector claim is upon the registrant. Swaczyk v. United States [1 Cir], 156 F.2d 17, cert. denied, 329 U.S. 726 [67 S. Ct. 77, 91 L. Ed. 629]." *fn2"

 On October 5, 1966, the Appeal Board voted unanimously to deny defendant's appeal, duly recording its determination, but giving no statement of its reasons. On November 16, 1966, defendant was ordered to report for induction. The present prosecution followed from his undenied refusal to submit to induction.

 Defendant's main argument, the only one the court finds it necessary to reach, is that the Appeal Board had before it both a permissible and an impermissible ground for rejecting his claim; that the Department of Justice recommendation tendered both grounds; and that there is no way of knowing which one constituted the basis for the decision. Placing central reliance upon United States v. Jakobson, 325 F.2d 409 (2d Cir. 1963), aff'd, United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965), he argues that a conviction may not be rested upon an administrative record containing so basic an infirmity. The Court agrees.

 The key sentences in the Department of Justice recommendation are the same in this case as the ones in Jakobson. See 325 F.2d at 411-412, and compare the language quoted above from the letter concerning Englander. Here, as in that case (id. at 412):


"The Department of Justice * * * recommended denial of [Englander's] * * * claim on two grounds: that he lacked sincerity, and that his objections were not based on religious training and belief within the meaning of the statute. The Appeal Board did not indicate on what ground it relied."

 There is no more basis here than there was in Jakobson for knowing that the Appeal Board did not proceed upon "an erroneous construction of the statute" (ibid.) rather than an allowable judgment of fact within its largely unreviewable province. There are differences, to be sure, between the two Department of Justice letters. But the differences are clearly insufficient to warrant a conclusion that the infirmity held fatal in Jakobson is absent here.

 The Government argues earnestly that the recommendation in this case issued considerably later than the decision in Jakobson and affirmance of that decision by the Supreme Court; that it would be "folly" and "illogical" to suppose that the specialized Department of Justice attorney who signed both recommendations committed the very error found crucial in Jakobson; and that these premises require a different conclusion for this case. The arguments have some weight, but not enough. It is the decision of the lay Appeal Board, whose members presumably read and deliberated on the recommendation, which is the critical operative fact in this case, as it was in Jakobson. Whatever undisclosed changes of meaning were in the mind of the Department attorney, the words he used, and the ambiguous message they appeared to convey, were flawed in a substantially identical way. Indeed, the able arguments of government counsel opposing defendant's motion for an acquittal served in a measurable degree to highlight the uncertainties and potential confusion the Department's letter could well have generated even for law-trained people familiar with the precedents. There is no profit in exploring these difficulties at length. It is enough to say that a key determination so fraught with doubt cannot be adequate ground for conviction upon a grave criminal charge.

 Accordingly, the defendant must be, and he is, acquitted. As in Jakobson, 325 F.2d at 417, this judgment is "without prejudice to such new proceedings for [Englander's] induction, if any, as the Selective Service System may think it wise to undertake."

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