Opinion
Cr. No. 8653.
August 20, 1953.
Adrian W. Maher, U.S. Atty., New Haven, Conn., for plaintiff.
Marvin D. Karp, Hartford, Conn., for defendant.
This case arises on an indictment charging the defendant with unlawful refusal to submit to induction into the armed forces of the United States in violation of the Universal Military Training and Service Act, 62 Stat. 604, 50 U.S.C.A.Appendix, § 451 et seq., hereinafter referred to as the "Act". The case was tried to the court, a jury having been waived.
Findings
1. The defendant, after hearing before his local board, was classified 1-A.
2. Thereafter he filed a letter of appeal and his file was forwarded to the Appeal Board, which transmitted the case to the Department of Justice for investigation and report pursuant to Sec. 6(j) of the Act, 50 U.S.C.A.Appendix, § 456(j).
3. On March 12, 1952, the defendant was given notice of hearing to be conducted by the Department of Justice on March 26, 1952, before Isser Gruskin as hearing officer.
4. The defendant by letter requested of the hearing officer "any information you may have that would tend to defeat my claim for exemption as a conscientious objector." By letter dated March 19, 1952 to the defendant the hearing officer replied as follows:
"Some of your references stated that they thought your stand was based on political and sociological grounds. You must show that it is based on religious training and belief, good faith and sincerity. You and your witness or witnesses will have an opportunity to prove the latter."
5. At the hearing on March 26, 1952, the defendant made further request for adverse information contained in the investigative report which was then before the hearing officer. He was then told that one reference thought his conscientious objection was based on a way of life rather than a religious conviction. The hearing officer said this was the only piece of adverse evidence in the report.
6. In his report the hearing officer recited that "the investigative report discloses that the registrant was influenced by the teachings and practices of Ghandi and the Fellowship of Reconciliation". The report of the hearing officer also purported to summarize the estimates of two named clergymen as to the defendant's sincerity and mental attitude. These two references thought the defendant sincere in his beliefs and religious convictions. One "thought that the registrant leaned to pacificism" and observed that the "registrant could not base his claims on teachings of and membership in the Methodist Church of which he was a member." Whether these conclusions of the two named clergymen were developed at the hearing or whether they were a part of the investigative report in the hands of the hearing officer does not appear from the report of the hearing officer or elsewhere in the evidence.
7. The hearing officer's report concluded that "The registrant appears to be honest and sincere in his stand. He is a person of good character and appears to be acting in good faith." However, it was recommended that "the registrant's claim for exemption from noncombatant service be not sustained and that he be classified in Class 1-A-O".
8. The Department of Justice by letter to the Hearing Board dated July 3, 1953, enclosed the report of the hearing officer and concurred in the recommendation that the registrant's claim be sustained as to combatant military service only.
9. The Appeal Board thereupon classified defendant 1-A-O.
10. The defendant was duly ordered to report for induction. He did so report but refused to submit to induction by taking the symbolic step forward.
11. At the trial the defendant called upon the Assistant United States Attorney to produce the investigative report of the F.B.I. which had been furnished to the hearing officer, having previously duly served him with a subpoena requiring him to bring with him said report. The court ordered the District Attorney to produce said report but he respectfully declined to do so on the ground that pursuant to Order 3229 (Revised January 13, 1953) issued by the Office of the Attorney General, he had referred said subpoena to the Attorney General and was in receipt of specific instructions respectfully to decline to produce the material sought.
On the foregoing facts I am unable to find that the government has proved the validity of the defendant's classification as 1-A-O and therefore find the defendant not guilty.
It is accordingly ordered that the indictment be dismissed.
The propriety of the acquittal in this case turns upon the proper interpretation of Sec. 6(j) of the Act, which provides that upon the filing of an appeal based upon conscientious objection to military service, the "appeal board shall refer any such claim to the Department of Justice for inquiry and hearing"; and that "the Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith of the objections of the person concerned, and such person shall be notified of the time and place of such hearing", after which the Department shall "recommend to the appeal board" an appropriate classification.
The Department has adopted the practice in such cases of causing an investigation to be made by the F.B.I. The investigative report is before the hearing officer at the time of hearing, but is not available for inspection by the registrant.
In United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 994, the Supreme Court sustained the government's contention that the registrant, at and prior to the hearing, was not entitled to inspect the investigative report. It interpreted the Act to mean that the Department "satisfies its duties under § 6(j) when it accords a fair opportunity to the registrant to speak his piece before an impartial hearing officer; when it permits him to produce all relevant evidence in his own behalf and at the same time supplies him with a fair résumé of any adverse evidence in the investigator's report." Under this interpretation, the availability to the registrant at the hearing at least of a "fair résumé" of the investigative report is an essential part of the procedure for the legal classification of one claiming exception as a conscientious objector. Since the Act confides to the courts the responsibility for determining whether the envisaged classification procedure has been complied with, it is my view that the burden is upon the government in the case of a registrant who, like the defendant here, seasonably requested information as to any adverse evidence in the investigative report, to prove that he was furnished at least with a "fair résumé."
Thus arises the question whether the letter of the hearing officer and the verbal communication at the hearing (Pars. 4 and 5 of my findings) constitute a "fair résumé." It is my opinion that I cannot conscientiously determine that the résumé was fair without an opportunity to inspect the investigative report of which it is claimed to be a résumé. I think the Act should not be interpreted to mean that any communication by the hearing officer to the registrant with reference to the investigative report is conclusively presumed to be a fair résumé. Even if the résumé given be deemed presumptively fair, on trial the registrant must be allowed to combat the presumption by the only means possible, — comparison with the investigative report itself.
The government's position, although forcefully and ably presented, appears to me to overlook the fact that the Nugent case and the companion case of United States v. Packer, went no further than to say that at the departmental hearing the respective registrants were entitled at most to a fair résumé of any adverse evidence in the investigative report. In the Nugent case, it was held (Footnote 10) that the registrant could not complain of failure to provide him at the hearing before the Hearing Officer of a summary because he did not ask for it. That is not the case here. And in the Packer case it was held that the registrant's right at the time of hearing to be advised of unfavorable evidence in the F.B.I. report was satisfied when the Hearing Officer told him that there was nothing unfavorable in it and confirmed that statement in his report. That is not this case: here the report of the Hearing Officer and indeed the purported résumé itself show that the investigative report did indeed contain matter unfavorable to the registrant's claim.
However that may be, I find no intimation in the opinion in these cases that when the validity of the administrative procedure in a particular case is under review in a criminal trial, the defendant's right to subpoena under Rule 17 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., may be circumscribed. At that juncture the doctrine of United States v. Andolschek, 2 Cir., 142 F.2d 503, 506, comes into play, and "the government must choose" either it must disclose the report for its bearing on the fairness of the résumé or in effect abandon prosecution on the pending indictment.