Before MARIS, KALODNER and HASTIE, Circuit Judges.
The defendant, Larry Deane Stepler, appeals from his conviction in the United States District Court for the Eastern District of Pennsylvania for failing, in violation of sections 6(j) and 12 of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, §§ 456(j), 462, to obey an order of Local Board No. 72, issued March 25, 1955, to perform civilian work in lieu of induction in the armed forces. The defendant, a Jehovah's Witness, was classified as a conscientious objector, I-O, but he claimed that he was entitled to exemption as a minister from service which exemption the local board denied him. He was ordered by the local board to report for civilian work at the Norristown State Hospital. On refusal to obey the order, he was indicted, tried by a jury, and found guilty of violating the Act. Thereafter he moved in the district court for judgment of acquittal urging that the order of the local board was invalid in that (1) the local board denied him ministerial classification on an illegal basis, and (2) he was denied a procedural right when the local board refused to reopen his classification. The motion for judgment of acquittal was denied by the district court, 152 F.Supp. 99, and he was sentenced to a term of 18 months in prison and a fine of $500. This appeal followed.
The defendant relies here for reversal upon the same contentions which he made in the district court when he moved for judgment of acquittal and which the district court rejected in denying his motion. We shall consider first his allegation that the local board denied him procedural due process of law by refusing to reopen his classification. His basis for this contention consists of two letters, one from the state director, dated November 17, 1954, and the other the local board's reply thereto of November 18th. We must consider these letters against the background of the facts of the case.
The defendant filed his questionnaire in December 1950 claiming that he was a minister of Jehovah's Witnesses. He was classified I-A, available for military service, by the local board. Thereafter he sought classification as a conscientious objector, I-O, but the local board continued him in Class I-A. He appealed his classification but his record remained in the files of the local board to await the results of his physical examination. During this waiting period, on September 12, 1952, the defendant advised the local board that he was employed as a full time minister and later a certificate was filed evidencing his appointment as a pioneer minister on March 15, 1952. On November 19, 1952, after he was notified that he had passed his physical examination, his file was forwarded to the state appeal board. His file was transmitted to the Department of Justice in respect to his claim for classification as a conscientious objector, the Department recommended that he be so classified, and the appeal board set aside the local board's classification of I-A and classified defendant I-O. The defendant, still claiming ministerial classification, filed a second classification questionnaire reciting his various activities as a minister of religion.
On July 8, 1953 the defendant was informed by the state director that his file had been carefully reviewed and as no procedural errors or denial of rights were apparent, no injustice seemed evident. It was also stated that defendant's case had received the consideration of the local board, the appeal board and the appeal agent and all had concurred that a ministerial deferment was unwarranted but that the local board would be requested to consider the additions which had been made to the file since the action of the appeal board to determine whether or not a reopening of defendant's case was warranted. On July 24, 1953 defendant was advised by the local board that the evidence did not warrant reopening his classification. A period of negotiations followed regarding civilian work, the local board found employment for defendant in the Norristown State Hospital, and his file was transmitted to national headquarters for approval.
Under date of April 28, 1954 the state director wrote the following letter to the local board:
"The file of the above named Class I-O registrant, which had been forwarded to National Headquarters under section 1660.20(d) of the regulations, is returned.
"The cover sheet discloses that the registrant was classified I-O by the appeal board on April 30, 1953, following which SSS Form No. 110 was mailed. On May 18, 1953, the registrant submitted a photostatic copy of a Certificate for Pioneer issued by the Watchtower Society, Brooklyn, New York, dated February 24, 1953, evidencing his Pioneer appointment on March 15, 1952. This information was considered by the local board on July 23, at which time it was determined that the registrant's classification not be reopened.
"The necessary authority under section 1660.20(d) to continue the registrant's processing is withheld, and it is requested that his classification be reopened and considered anew under section 1625.3(a) in view of the apparent change in his status which resulted when he received his Pioneer appointment.
"In connection with the requested reconsideration of this case, your attention is directed to our Memorandum SSSP-1369. It is suggested that prior to your recosideration, the registrant be interviewed by the board to obtain current information in all matters listed in the Memorandum that might be applicable to him.
"Should it be your determination that the registrant does not qualify for the classification claimed, it is suggested that a statement be put in the file to evidence the reason or reasons for your determination. The preceding remark is not made to influence your board, but merely as a precaution that the record may be complete.
"If the registrant's classification should remain Class I-O if it is considered by the local board after a personal appearance, and after consideration by the appeal board, it will not be necessary to again process the case under section 1660.20 of the regulations.
"Please notify this headquarters of your board's determination."
The local board granted the defendant a personal hearing at which time certain questions and answers were recorded in his file. The defendant said he worked as a stone mason, that the number of hours he worked depended on the weather, that his salary for a full week was $100.00, that in the previous year he had earned approximately $2,000.00, that he taught the principles of religion only 40 hours a month because he had recently married and had been granted six months time to adjust and clear his debts, and that he held the position of Bible Study Servant. The local board determined that defendant did not qualify for Class IV-D and on May 24, 1954, classified him I-O. On June 10, 1954 the defendant appealed and his file was transmitted to the appeal board containing the following statement:
"We, as Members of Local Board #72, Franklin Co., Penna., believe that Larry Deane Stepler, does not qualify for the classification claimed (4-D) for the following reasons:
"1. A member of Jehovah's Witnesses does not qualify for a 4-D classification for the reason that he does not have the training and ...