409 F2d 830 United States v. Willis

409 F.2d 830

UNITED STATES of America, Plaintiff-Appellee,
v.
Verstell WILLIS, Defendant-Appellant.

No. 26748.

United States Court of Appeals Fifth Circuit.

April 18, 1969.

Omar W. Franklin, Jr., Valdosta, Ga., (Court-appointed) for defendant-appellant.

Floyed M. Buford, U.S. Atty., Walker P. Johnson, Jr., Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.

Before GEWIN, McGOWAN1 and MORGAN, Circuit Judges.

PER CURIAM.

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1

This is an appeal from a denial of a IV-D selective service classification (ministerial exemption) by Local Board No. 141, Tift County, Georgia. Appellant Verstell Willis was originally classified as I-A by the local board; however, this designation was modified to a I-,0 classification (conscientious objector) by the Appeals Board. Willis subsequently refused to report for civilian employment and was therefore convicted of violating the Universal Military Training and Service Act, 50 U.S.C. App. 462 (1964). The district judge heard the case without a jury and sentenced Willis to two years imprisonment.

2

Appellant Willis, a Jehovah's Witness, contended before the local board that he qualified for a ministerial exemption in that he has studied the Bible since he was twelve years of age and has attended and is attending the Theocratic (Ministry) School; is actively preaching his beliefs and attends all church meetings; has given public expression to his views at the ministry school and in door-to-door field ministry; has dedicated his life exclusively to Jehovah; and is a Congregation Publisher of the Watchtower Bible and Tract Society. The trial court held that these facts were insufficient to make out a prima facie case before the board for a ministerial exemption. During the trial, Willis further revealed that he held the positions of Magazine and Territory Servant and Literature Servant in his church.

3

After a thorough and sifting review of the case law, the Court concludes that the cecision of the trial judge must stand. The teachings of Matyastik v. United States, 392 F.2d 657 (5 Cir., 1968), acknowledge that the 'burden is on the registrant to make out a prima facie case for exemption before the local board'. Under the treble test developed in Fitts v. United States, 334 F.2d 416 (5 Cir., 1964), as to the determination of the ministerial exemption, Willis fails to make a prima facie case for the exemption. Since the newly alleged facts at the trial failed to adequately supplement the evidence in making a prima facie case, we affirm the trial court.

4

Willis' final contention is without merit in that we have recently decided that there is no guaranteed constitutional right to counsel in dealings with a local selective service board. Merritt v. United States,401 F.2d 768 (5 Cir., 1968).

5

We affirm.

1

Judge Carl McGowan of the District of Columbia Circuit, sitting by designation