Defendant was convicted before the United States
District Court for the Southern District of Iowa, Roy L. Stephenson, J.,
of willfully and knowingly refusing to submit to induction, and he appealed.
The Court of Appeals, Ross, Circuit Judge, held that failure of local board
to specify its reasons for denial of conscientious objector classification
constituted a fatal procedural error necessitating a judgment of acquittal.

     Reversed and remanded.

     C. A. Frerichs, Frederick G. White, Waterloo,
Iowa, for defendant- appellant.

     Allen L. Donielson, U. S. Atty., John B. Grier,
First Asst. U. S. Atty., Des Moines, Iowa, for plaintiff-appellee.

     Before GIBSON, HEANEY and ROSS, Circuit Judges.

     ROSS, Circuit Judge.

     Curtis Allen Hanson, whose request for classification
as conscientious objector was denied by his local board, was convicted
by a jury on an indictment charging him with willfully and knowingly refusing
to submit to induction in violation of 50 U.S.C. App. s 462, and was sentenced
as a young adult offender under the Federal Youth Correction Act. This
appeal is taken from the denial of Hanson's motion for judgment of acquittal,
notwithstanding the verdict, and in the alternative, for a new trial.

     The two principal questions raised on this
appeal are 1) whether Hanson's Form 150 made a prima facie case for conscientious
objector status, and 2) whether the failure of the local board to state
the reasons for its refusal of the conscientious objector classification
required the court to enter a judgment of acquittal notwithstanding the
verdict.

     We answer both questions in the affirmative.

 

     [1] The principal legal question to be decided
in any case such as this is whether or not there is a "basis in fact" for
the classification given to the registrant. Estep v. United States,
327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946).

     "The 'basis in fact' test actually involves
two steps. At the threshold, the reviewing court must determine, on the
basis of the registrant's submitted Selective Service Form 150 and supplemental
material, whether the registrant has made out a prima facie case for entitlement
to classification as a conscientious objector." United States v. O'Bryan,
450 F.2d 365, 368 (6th Cir. 1971). See United States v. Iverson,
455 F.2d 79, 81 (8th Cir. 1972); United States v. Wood, 454 F. 2d
765, 767 (4th Cir. 1972); United States v. Stetter, 445 F.2d 472,
477 (5th Cir. 1971).

     The facts relating to the classification procedure
utilized in this case are lengthy and complex, and we will recite only
those relevant to the request for and denial of the conscientious objector
classification. Suffice it to say that Hanson registered in 1964, and from
that time until his refusal to submit to induction on July 21, 1970, there
were several changes of classification and four orders to report for induction.

     Hanson filed his Form 150 requesting conscientious
objector (I-O) status on July 16, 1969. He signed the portion of the form
which stated as follows:

     "I am, by reason of my religious training and
belief, conscientiously opposed to participation in war in any form and
I am further conscientiously opposed to participation in noncombatant training
and service in the Armed Forces. I, therefore, claim exemption from both
combatant and noncombatant training and service in the Armed Forces, but
am prepared to perform civilian alternative service if called. (Registrants
granted this status are classified I-O.)"

     He also supplemented that signed statement
with additional information required by the form. [FN1]

     On August 14, 1969, after a board meeting,
a classification memorandum was placed in Hanson's file showing his classification
to be I-A(3) and containing the notations "Does Not Warrant Reopening,"
and "If remain 1-A ask if he wishes to visit with the L.B." By letter,
on August 14, 1969, the local board wrote Hanson the following:

     "Please be advised your complete Selective
Service file was reviewed by the local board members this date and after
the review of new information submitted, the Black Hawk County Selective
Service Local Board in session has determined no basis in fact is present
to warrant a reopening of your present classification.

     However may we further advise if you would
like to meet with the local board at their September meeting, you may have
this privilege.

     Please notify this office if you wish to appear
and you will be notified of the date and time.

     Your cooperation is appreciated."

     The Board again wrote Hanson on September 10,
1969, and on October 8, 1969, giving him the opportunity to appear before
the board on September 16 and October 14, respectively, but Hanson failed
to appear at either session. On October 14, 1969, an SSS Form 119 was placed
in Hanson's file stating that "Registrant notified to appear with local
board on 14 October 1969 per letter of 8 October 1969. Registrant failed
to appear at this meeting. Classification reopened. Remains 1-A(3) SSS
110 mld." Another classification memo was placed in his file indicating
Hanson's classification remained 1-A(3).

     Hanson notified the board that he wished to
appeal the classification by letter dated November 8, 1969. On January
14, 1970, the state appeal board upheld the 1-A classification. On May
13, 1970, another Form 119 was placed in Hanson's file which indicated
the local board reviewed the file again on that date and stated as follows:

     "The local boards reason for denial of conscientious
objector's claim was as follows:

     The registrant did not present sufficient evidence
in writing to uphold his claim for conscientious objection, also failure
to appear before the local board to further discuss his feelings and beliefs
to warrant change from his present 1-A classifiation to that of 1-O."

     By letter of May 21, 1970, Hanson was advised
of this action and given further instructions on reporting.

     On July 8, 1970, Hanson met with the local
board and answered questions concerning his beliefs, his schooling and
problems relating to drugs. Another memorandum was filed indicating no
change in classification. Then on July 9, 1970, he was ordered to report
for induction on July 20, 1970.

     Although certain events described above took
place subsequent to the appeal to the State Appeal Board, for obvious reasons
we must judge the legality of the classification on the basis of the action
of the local board prior to the appeal.

     During the period relevant to this case, 50
U.S.C. App. s 456(j), provided as follows:

     "Nothing contained in this title . . . shall
be construed to require 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, sociological, or philosophical
views, or a merely personal moral code."

     [2] In determining whether the Form 150 filed
by Hanson made out a prima facie case for classification as a conscientious
objector, we must apply the test laid down in 50 U.S.C. App. s 456(j),
and the cases interpreting that statute. That test is whether, if the facts
alleged in his Form 150 are true, Hanson is conscientiously opposed to
"participation in all war," Gillette v. United States, 401 U.S.
437, 443, 91 S. Ct. 828, 28 L.Ed.2d 168 (1971), and whether his personal
beliefs are held with the strength of religious conviction in his life,
rather than stemming solely from political, sociological, or philosophical
views. Welsh v. United States, 398 U.S. 333, 340-343, 90 S.Ct. 1792,
26 L. Ed.2d 308 (1970).

     The form statement signed by Hanson included
a statement that he is "conscientiously opposed to participation in war
in any form." In other parts of the questionnaire he stated, "I am against
war and violence," "I want no part of war and death," "I hate war and death,"
and "it would be a moral sin to do anything for your war machine." There
are no statements by Hanson in the Form 150 which would indicate that he
was selective in his opposition to wars. We think these statements, taken
together, essentially allege that Hanson is opposed to participation in
war in any form. [FN2]

     [3] As to whether the form indicates that his
personal beliefs are held with the strength of religious conviction in
his life, rather than stemming solely from political, sociological or philosophical
views, a similar analysis may be made. Hanson signed the form stating he
was conscientiously opposed to war in any form "by reason of my religious
training and belief." He also stated in the Form 150 that he was a member
of the Bahá'í Faith and that his beliefs were derived from "my acquaintances
and other surroundings." It is true that other statements are made which
appear to represent his political, sociological or philosophical views;
but as the Supreme Court stated in Welsh v. United States, supra,
398 U.S. at 341, 90 S.Ct. at 1797, when a registrant states that his objections
to war are "'religious,' that information is highly relevant to the question
of the function his beliefs have in his life." See United States v.
Seeger, 380 U.S. 163, 184, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). The
fact that the form discloses political, sociological and philosophical
as well as religious views does not detract from the prima facie validity
of the claim, when it is evident that his views stem at least in part from
his religious training and belief. In this regard, the Supreme Court, in
Welsh v. United States, supra, 398 U.S. at 342-343, 90 S.Ct. at
1798, made this statement:

     "We certainly do not think that s 6(j)'s exclusion
of those persons with 'essentially political, sociological, or philosophical
views or a merely personal moral code' should be read to exclude those
who hold strong beliefs about our domestic and foreign affairs or even
those whose conscientious objection to participation in all wars is founded
to a substantial extent upon considerations of public policy. The two groups
of registrants that obviously do fall within these exclusions from the
exemption are those whose beliefs are not deeply held and those whose objection
to war does not rest at all upon moral, ethical, or religious principle
but instead rests solely upon considerations of policy, pragmatism, or
expediency. In applying s 6(j)'s exclusion of those whose views are 'essentially
political, sociological, or philosophical' or of those who have a 'merely
personal moral code,' it should be remembered that these exclusions are
definitional and do not therefore restrict the category of persons who
are conscientious objectors by 'religious training and belief.'

     Once the Selective Service System has taken
the first step and determined under the standards set out here and in Seeger
that the registrant is a 'religious' conscientious objector, it follows
that his views cannot be 'essentially political, sociological, or philosophical.'
Nor can they be a 'merely personal moral code.' See United States v.
Seeger, 380 U.S., at 186 [85 S.Ct. at 864]." (Emphasis supplied.)

     [4] The statements made by Hanson in his Form
150 cannot be said to be essentially political, sociological or philosophical,
nor a merely personal code. On their face, they are based in major part
on religious training and belief and were entitled to be treated as making
a prima facie case for conscientious objector status by the local board.
See e.g., United States v. Levy, 419 F.2d 360 (8th Cir.
1969); United States v. Haughton, 413 F.2d 736 (9th Cir. 1969).

 

     Hanson claims that since a prima facie case
was made for conscientious objector status, the failure of the local board
to state the reasons for its refusal to grant the classification (prior
to appeal to the state appeal board) required the trial court to enter
a judgment of acquittal notwithstanding the verdict.

     This Court has recently made it clear that,
in the absence of specific written findings, a court may find a basis in
fact for a classification from the objective evidence within the four corners
of the registrant's file.

     "[I]t is settled law that a board finding turning
on factors not apparent from an examination of the file will not survive
judicial review in the absence of some specific written findings or notations
to support it. . . . Since there are no such findings here, we can only
sustain the denial of [the] conscientious objector claim if we find some
basis in fact for the conclusion of insincerity in the objective evidence
in his Selective Service file."   United States v. Rutherford,
437 F.2d 182, 183-184 (8th Cir. 1971). See United States v. Iverson, supra,
455 F.2d at 82; United States v. Abbott, 425 F.2d 910, 913 n.4 (8th
Cir. 1970).

     Thus, this Circuit has not heretofore adopted
the rule urged by Hanson, and set forth in United States v. Haughton,
supra, 413 F.2d at 739, to the effect that once the registrant has made
a prima facie case, it is a fatal procedural flaw for the local board to
fail to articulate in writing the reasons for its denial of a conscientious
objector classification.

     The rationale of Haughton is that written
reasons are necessary to provide the registrant with a basis for meaningful
appeal and review.

     "Otherwise a court cannot determine whether
a board's denial of a requested classification was based on a belief that
the registrant's statements, even if true, did not entitle him to the classification,
or on the reasonable disbelief of certain allegations necessary to the
registrant's prima facie case." Id. at 739.

     Since Haughton, at least two other circuits
have adopted this rule. E.g., Scott v. Commanding Officer, 431 F.2d
1132, 1137-1138 (3d Cir. 1970); United States v. Broyles, supra,
423 F.2d at 1304; see also Fein v. Selective Service System, 405
U.S. 365, 380, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). Although Hanson's
counsel concedes that there is objective evidence within Hanson's file
to justify a finding of insincerity, he urges that this Court adopt the
rule in Haughton and its progeny. Except for a change in the position of
the Government, subsequent to the submission of this case, we would feel
compelled to affirm this conviction on the basis of the reasoning advanced
in Iverson, Rutherford, and Abbott. However, apparently the Government
now takes the position that the rule enunciated in Haughton is the correct
rule, especially in view of the fact that the Selective Service regulations
now require that the board articulate its reasons for denial of a conscientious
objector classification. The Government's changed position became apparent
in the Solicitor General's brief in Joseph v. United States, 405
U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972) (per curiam), where it
was stated: "We are now persuaded that, in the particular circumstances
of this case, the failure of the local board to state reasons for denying
petitioner conscientious objector status was error." Likewise, in his brief,
the Solicitor General acknowledged the validity of Haughton. And
it was on this basis that the Supreme Court vacated the judgment and remanded
the case in Joseph.

     While Joseph was still pending decision,
this change in position by the Solicitor General was relied upon by Mr.
Justice Blackmun in Fein v. Selective Service System, supra, 405
U.S. at 381, 92 S.Ct. at 1072.

     "[T]he Government has now taken the position
that '[a]lthough this judicial rule [of Haughton and its progeny] finds
little support in early precedent . . . we do not think it appropriate
to contend that it is erroneous.' The Government also notes that the requirement
for an administrative statement of reasons 'seems fully consistent with
the new statutory . . . and regulatory . . . provisions on this point.'
. . .

     "While Joseph also is a conviction case and
is not one on pre-induction review, its obvious significance for Fein
is that if the doctor is ever again called for induction, the rule of Haughton
will provide a defense for him unless and until the requirements of the

new statute and regulations are fulfilled."

     [5] Therefore, in view of the statements of
the Supreme Court in Fein and its order vacating the judgment and
remanding Joseph, and in view of the present position of the Government
on this issue, as indicated by its supplemental brief in this case, the
failure of the local board to specify its reasons for the denial of the
conscientious objector classification must be held to be a fatal procedural
error necessitating a judgment of acquittal.

     Reversed and remanded with instructions to
enter a judgment of acquittal.

 FN1. When asked to describe the nature of his
belief, Hanson wrote:

"I believe all men are equal and all are brothers.


I am against war and violence.


I am a member of the Bahá'í World Faith."

     And when asked the source of his religious
training and belief, he stated:

     "I acquired my beliefs before I joined the
Bahá'í Faith. They weren't derived from the general religious training,
but more so from my acquaintances and other surroundings. My parents obviously
had a great effect, also such books by Kahil Gibran and Herman Hesse--I
suggest you read their works!"

 

   In response to a question as to whether his beliefs would
prohibit him from serving in a noncombatant function, Hanson noted:

     "I guess my formal religion doesn't, but I
feel it would be a moral sin to do anything for your war machine. I want
to do constructive things and I want no part in participating in helping
you destroy-Let me do good!!! Is that such a big request."

     And when asked to list examples of expression
of these views, he answered as follows:


     "Oh yes, many times-probably every day.


     Examples to me are meaningless.


     I hate war & death.


     I love people & life.


     I want to help people and promote life.


     I want no part of war & death.


     This local board & all you people down
there represent to me war & death & sin!"

 FN2. Compare United States v. Stetter,
supra, 445 F.2d at 474-475; United States v. Callison, 433 F.2d
1024, 1026 (9th Cir. 1970); United States v. Broyles, 423 F. 2d
1299, 1301-1302 (4th Cir. 1970); with Kurtz v. Laird, 449 F.2d 210,
212 (5th Cir. 1971); Bresette v. Knutson, 443 F.2d 179, 181-182
(7th Cir. 1971).






One can search for trademark documents for "Bahá'í" at http://tess.uspto.gov/bin/gate.exe?f=tess&state=duvjq.1.1