*3 POPE, CHAMBERS, Before FEE and Judges. Circuit Judge. FEE, JAMES ALGER Circuit Ayers re- was of a failure to convicted military port for serv- induction into the in accordance with the order of ice local board. criminal case was tried judge Dis- of the United States sitting jury by Court, without a trict question consent. decided therefore judge of fact. The found was one guilty. the facts was that defendant proceeding rec- was not a review of the ord before the Selective Board. Service only Such records the case as evi- enter appropriate dence to show that notice report. De- defendant witnesses, fendant had two himself and another, Upon testified the case. appeal record, transcript there is no so we do not know what either of the witnesses said in District Court. stipu- Service record The Selective Upon admitted in evidence. to and lated record, defendant reversal of now asks the conviction. register- record This showed system under the Selective Service up Board and came before Local Diego County. July 11, 1950, On San was classified Board in 1-A and notified of Class that action. Shortly thereafter, he sent a letter to appealing Board his classification on ground studying that he was the ministry. College Thereupon, Pasadena registrant the statement verified preparing ministry in that Regu- up result, set under Selective Service As a institution. April lations,1 dated wrote a letter 4-D and notified placed in Class 1953, giving certain to the Local Board him. attention facts which had come to his College Long Beach notified State concerning the International Christian according February 17, mentioned, Revival Association above record, Ayers was enrolled claiming mem- since the special with there as a student bership in as a basis for that association By units of letter twelve instruction. pertinent in- his current belief. February 18, noti- dated formation was con- informa- fied additional *4 twenty members, of in- sisted some supplied he were to con- tion must be if corporated 1951, in on and had decided in tinue Class In a letter dated 4-D. 18, they 1952, November were con- day, Ayers the same for the first claimed scientiously opposed war and on that to conscientiously opposed time to be to day passed a to effect. resolution February 24, war. On the Local Board given Advice was as to the action of received a from him second ex- letter another with a Local Board to reference panding his reasons for conscientious ob- organization. member of the same Com- jection transferring and for from a plaint chiefly paragraph of the made theological college. school to a state in the letter: Ayers special filed with Board the above, ap- “In objector, view of form it would conscientious pear entirely that a was almost writing in classification of 1-0 is filled out the hand- girl provisions of a warranted under the had him. who assisted of Section 1622.14 of the Selective receipt special form, After of this Regulations.” Service again 4,1953, Local Board on March clas- Ayers Thereafter, regular forms, Ayers sified in on Class 1-A and notified him mail on volunteered for work filed March civilian April 30, 1953. these with the Board on Ayers thereupon requested The minutes of the Board do set appearance appealed classifica- meetings anything as to discus- result, forth of tion 1-A. As March except thereafter, show appeared sions personally he before again May 7, agreed Board, and, Board result, as a registrant in classify Class 1-A. On apparently classified to him in 1-0. day, notification of plea part the next this clas- upon based his in his member- Ayers. By was mailed ship sification in International Christian Revival registrant May 13, 1953, ap- letter dated Association. sent a letter dated pealed request- the 1-A classification and March confirm his statement personal appearance. belief, ed a He enclosed of which contains the statement: in letter “Articles Belief” of fight “I will stand and for this the International Christian Revival As- world, our America or the but I re- belonged. sociation, May to which he On fuse to use the means which the registrant 21, 1953, appeared personally using gain peace.” world the Local Board and previous letter, In a he said: hearing. another The Local Board voted just “I’m in group a small registrant continue Class 1-A. A people trusting and we are Christ copy summarizing of the memorandum give and His word that He will us a personal appear- occurred what at this day.” revival for our contained ance Selective Service regard claim, Sanders, file, day Ayers In to this R. R. was noti- Captain, U.S.A.F., who coordinator fied that he had been continued in Class Headquarters of District No. which 1-A. (1950) 1004.14(a). 1. C.R.R. was void because for for induction June On theory regis (1) applied file warded Selective Service classifying defendant, (2) Thereafter, acted Appeal of law trant to Board. arbitrarily, capriciously Attorney moved the United States (3) reclassifying him, advisory basis fact in from secure an reopen- contrary regulations by ap Department Justice. reconsidering hearing classification
peared officer, before the Ayers, exemp (4) in- access to denied recommended claim formation which classification, was the be not sustained. (5) him denied Justice, it is stated: hearing. Hearing reported “The Officer points are con- and second The first stated that together. The attack sidered opposed participation in war Board is based ad- form. The simply the letter the fact that Hearing Officer, however, vised the appears From file. Sanders proper that he believed that it was argued presence, mere governments carry on wars *5 were overwhelmed and members people and that should be in the judgment and an erroneous vitiated Army. He stated that he believed theory injected case. of law into the was satisfactory that it is who for those Again, pure speculation. all this is But through protect chooseto themselves argued arbi- it is that the Board acted the use of force. be- He does not trarily capriciously and and participate lieve that he should in making in fact the classification. war.” Government’s Exhibit It is Board had demonstrable the page 76. personality firm foundation in His relation to the association Ayers, presence actions of mere eventually which he based refusal of in- letter record Sanders quite duction is confused. Federal The contrary. proof of the Board is no Investigation reported Bureau of he was Captain truth, letter of Sanders dropped ap- from the rolls thereof “in really pointed which out facts proximately August, 1953.” At the hear- by previously known noticed or have been ing, it was ac- shown he was a member Board. The recent date cepted January 31, as of 1954. On against by group of war resolution Appeal placed April Board Ayers member claimed to be a which may possibly April 19, 1-A. On Class one of ele- have been Local Board received the Selec- Ayers classifying a second ments time Appeal file from Board. Service tive They may believed 1-A. have Ayers was notified of his classification Ayers training and ex- beliefs were 1-A the Board on Class organization, emplified this May 4, 1954, was date. On defendant accomplished was recent most May report for induction ordered to military was threatened with Captain after he requested a transfer to “Dis- Sanders was a service. granted, and Local which No. Coordinator,” duly authorized trict re- 135 ordered defendant to Board regulations2 to communicate law and 9, 1954, upon port June for induction cooperate Board. with the Local day reported for induction but which System, the Selective Service Under submit thereto. refused organ- many of members of state these properly military appeal points were officers raised on are numer- izations military The Local Boards titles.3 is said that the order to had ous. It ly military personnel (1956) 1604.12, authorizes §§ 32 C.F.R. 1604.14. Headquarters State for Se- the staffs of specifical- (1956) 1604.14(a) lective Service. 3. 32 C.F.R. learning difficulty facts the facts and relating material on sides both would have religious organizations, question. fact to this The mere some about particular in that the involved which are national or international information relatively military officer, scope received from a and others of which are legitimate had unknown, here. under the small and function System, facts Selective Service should There has been no claim that proffered. taint the stated in erroneous information which he letter misleading. was no fraud There showing There is no members that the charged, could the facts there of the Local Board were overwhelmed not have di- been. The letter judgment this letter or surrendered their Ayers personally, rected at out but set personality the facts and the concerning facts whose appears because it in their files. Since it teachings gave claiming him facts, duty weigh was their these immunity. principle There no which reason, there is no record either in the indicates that is con- general knowledge, or as a matter of fined in the determination fact question their conclusion. examine materials brought before them. suggestion There is no in the criminal case record of anywhere, ap record nor did defendant gov- complete on its face. The parently fair attempt prove make an affirmatively proved each and ernment Court, the District the Local necessary every material fact convic- applied theory law in record was submitted to the tion. classifying in this case. together testimony judge, with the trial opinion Captain which the volun *6 witnesses, which is and his of defendant apparently teered the letter a con There is this Court. no show- not before Ayers of fact. But clusion was later be anyone Local testified that the person, urging contrary fore them corruptly prejudicially or clas- Board long conclusions of fact. So as the Ayers.4 testimony is no or sified There gave hearing, Board a fair all of the any record before this Court that competence. facts within were gave weight any to letter Captain power Sanders had no to make Captain de- Sanders. This cannot Court classifications himself. cide such a record that Board did adopt any not opinion to bound conclusion or give impartial not full and consideration Besides, opinion of his. to all the facts adduced both sides and finally which the Board arrived as to the training beliefs and classification of has not been registrant. shocking found so or require trial court as to that court to set judge trial tried aside. Nor should this Court substi showing him on the before and found judgment judgment for tute its guilty. Since that defendant Court, or the the Local Board5 District before this whole record Court apparently upon each of which evidence to sustain is sufficient there justified evidence which its conclusion. necessary conviction, every we factor judgment powerless to set aside. clearly The record shows that the Lo- ample Board had was the essence of the func cal its It several 1-A, up- Local Board all classifications based tion of the examine subjeets long way have come a to be submitted to the 4. The courts since triers of yet 549, v. United fact. But have come Falbo speculation 346, 305, rehearing point 88 L.Ed. where can under 64 S.Ct. judgment. denied, 802, 3.21 U.S. 88 L. mine a S.Ct. 1089; U.S. Ed. S.Ct. trial v. United where the courts Witmer U.S. L.Ed. 5. upon not to allow evidence such 99 L.Ed. directed 75 S.Ct. Regulations training pro- Board, personal attitude, and before the explained vide: belief as he it to them. “Every registrant, his clas- after thinking all of defendant local sification is determined through period rec shown * ** op- have an shall extremely ord confused. to have been portunity person appear in college attending theological He was lo- member members got difficulty could into because he * *” * 32 C.F.R. cal board go along thinking of his with the 1624.1(a). (1956) § and at teachers his fellow students pro- applicant’s There no denial of them, according tacked state to his own Regulations. tections under these secular ment. then transferred college. organiza He was in an enrolled Furthermore, pass which did not a resolution perfect right, called if facts were opposed its until members were war might to ing bear have a attention November his reclassifi After personal attitude and be ap Board, cation the Local he was reclassify applicant, liefs of membership parently dropped from giving him notification
later Local re-enrolled in 1954. The Regu impending. such action Board stability in was entitled to consider this can lations the Local Board state principles. belief and reclassify “upon its own motion if such point answer the therefore second action is based facts not considered by saying that the record does not show which, when the was classified arbitrarily the Local Board acted justify true, if would capriciously and without basis in registrant’s classification.” 32 C.F.R. classifying fact Ayers the third time 1625.2(b). (1956) § 1-A. By Regulations 1625.11, seq., et provided reopened that a classifica regulations Third, the establish tion must be considered anew and that all contrary Board did not act rights personal appearance, appeal regulations changing the classifi privileges and other must be accorded reclassification, As to notice of cation. *7 registrant. privileges All these it is stated: including Ayers, personal accorded a “Notice action when of classified> hearing. appearance and a The informa tion considered anew. When the upon tion which the Board acted registrant’s reopens local board possibly have been contained in the classification, shall, it as soon as Captain Sanders, letter of but this Court again practicable after has it classi- is not bound to conclude that that was registrant, fied the mail notice there- only motivating basis or even the * * designated of on [the forms] since, below, basis, as noted the Board is (1956) 32 C.F.R. 1625.12. § required thoughts to record its inner hearing only reclassification, As to it is motives. know it did have apparently stated: information which had not been considered before. “Right appeal following reopen- of Each such of classification. Another claim of defendant is by shall be followed that he was denied access to the infor right appearance of before the mation which was the of basis his classi right board and the same local fication. There in is the record original appeal as in the case of charge which shows this to be true. (1956) 32 C.F.R. classification.” hearing was held Since wards, soon after- 1625.13. is any to be assumed that new ordinary original right, upon As information which the Board had classification, personal appearance discussed at that time. keep “min of ment that the Local Board the “Articles fact that he enclosed The record' his utes” is satisfied a formal with of this Belief” indicat- action taken and cannot be construed appearance demand for thought demand detailed discussions. member belief as ed he pertinent. there Since thereof report induc order to hearing, that it was assume we must tion of the conten was not void because regular and, one, files since Board denied that the Local registrant, public inspection of a for the hearing upon classified to be his claim this exercised that he must be assumed objector. rec a conscientious apparently privilege. This issue was hearing given a ord shows that he was upon There never in trial court. raised for it. when he asked each case positive case that evidence this giving its fairness Board showed classifi- a 1-A-O Board offered to weight pleas upon one occasion full to his In it. refused cation and that holding changed only apparently judge event, the case trial decided inconsistency evidence of view of questions Since the en- on the of fact. conduct claim of belief. Court, his this record is not before tire only summary, findings accepted. must be argument that the point an at the fifth Since hearing found in that denied a effect the Board did procedure the Local tack affirmatively out set position Board, the differentiation of given step in each the consideration Appeal Board of that Board and the Ayers. fallacy position But the this by a Lo noted. Classification must be government that the lies the fact keystone process of the cal Board any necessity proving under These Boards are com of induction.6 only part of record at all. It was community posed of residents necessity proving under the un has lived. The which the order to and that de everyone derlying theory is that called report. fendant violated it and failed to forces is en for service the armed duty Appeal It is the peo titled ple the local to consideration classify the de novo.8 Board to presumably know him best. any possible Therefore, if there was de Boards, course, These Local therefore process, it from due would viation knowledge community reflect feel appeal. Tomlinson v. Unit corrected ing. It is nowhere said that local such States, Cir., 216 F.2d 12. The hearing are confined to residents evi exception possible this is where registrant. dence informa *8 personal appearance Board refused Local concerning him, they tion have his char registrant. may beliefs, any and come from acter They required States, Simmons v. United of sources. Neither 348 number 397, give hearing 397, personal 453, 75 99 L.Ed. him a at U.S. S.Ct. nor vari States, stages proceeding. United 348 ous of the A v. denial Gonzales U.S. hearing applies. 99 L.Ed. of such a is fatal. But 75 S.Ct. the Local complained required exactly errors here have to Board is not to state do with procedure, what while the elements considered classi Sim and Gonzales cases the fication or reclassification. mons matters There is no re appellate procedure. requirement they keep lated to elaborate re There is cordings whereby discussed, no factual basis herein of the matters meetings that a résumé of contention the FBI their considerations re when changing Ayers, require port denied a classification. The Simmons v. Unit- States, (1956) 1626.25(c). 6. Knox § v. United 9 200 8. 32 C.F.R. F.2d (1956) C.F.R. 32 1604.58. 810 short, States, supra, copy In of the selective that a under the service regulations registrant Department of in- the is entitled the itially hearing claim of con- Justice was not sent of his to him. Gonzales objection by supra. local United matter scientious the board As a fact, composed oppor- neighbors, of his whose record all these seems to show tunity judge honesty details of his and sin- were carried out. cerity, personal appear- because of his authority to This Court no has greater them, ance before any appeal than that of is substitute its view of the situation necessarily is board which either of the that of the Board or Local dependent upon the second-hand Appeal Board, opportunities for where hearing of a before given per appearance were hearing say- I Justice officer. am What appearances actually sonal had. is, the is entitled both
Witmer v. United
hearing
before the local board and
75 S.Ct.
orders,
mil
opinions from
or
instructions
appeal
transmitted
the
board
use
itary
con
personnel
draft boards
advisory opinion,
as an
consid-
was
trary
concept
selec
whole
the
(as
regulations
ered and used
the
re-
system
the
is that
tive service
process
quire)
appeal
board
its subse-
and induction
of classification
quent classification of the defendant.
by civilian
be carried on
boards.
shall
prosecu-
Under such circumstances
(C.F.R.
regulations
32, 1604.
Title
prove
tion was bound to
that such invadid
respect
provide with
1604.52)
22 and §
report and recommendation
the hear-
of
appeal
local
and the
boards
both
Justice
officer of
of
mem
shall
that no member
boards
appeal
did not
the decision
affect
any re
Forces or
ber
the Armed
board,
any subsequent
decision
component thereof.
serve
proof
local board. No such
was offered.”
(Emphasis mine.)
language,
That
possible
it is
Of course
conceivable
course,
respect
was used with
to the ac-
local board
the action
that
appeal board;
princi-
but the
changing appellant’s
from
ple
expressed
just
applicable
there
solely
I-A
have been based
1-0
the action of a
local board.
further consideration
board’s
which had been
evidence
Everngam
approv-
case cited with
giv-
the 1-0 classification
at
time
al
decision in United States ex rel.
Captain’s
en, and that the
letter and its Levy Cain, Cir.,
338, 342,
149 F.2d
part
influencing
had no
its ac-
advice
which was another of the
ex-
decisions
so,
appellant
Even
had at
tion.
since
pressly approved by
Supreme
Court
prima
case
made a
facie
at the time
least
States, supra.
in Sicurella v. United
classification,
1-0
case,
a local board made use of a
problematical
still be
whether
would
report and recommendation of an advis-
changed
board
classifi-
time the
ory panel
improper
which contained
mat-
proof
to I-A “there
some
[was]
cation
pointed
ter.
court
out that it was
registrant’s
incompatible with the
impossible to
extent,
know to what
if
exemption.”
proof of
Dickinson v. Unit-
any,
panel
the decision of the
influenced
States,
S.Ct.
ed
152,
Cain,
relator,
the local board. The
813
prove 2d
action
to
where the court dealt with
prosecution was bound
“the
changed
report
National Board
recommen
which
invalid
that such
':i *
*
registrant’s
deci
from 1-0
not
did
affect
dation
sion”,
Unit
I-A.
Sicurella
There it
is also stated
was conceded
held
States, supra,
wrong
the court
where
National Board
if it
reclassi-
Depart
by the
theory
of law
“this error
fied
on the
might
Appeal Board
ment,
professed
to which
creed
not sustain
would
ques
guidance
naturally
on such
look for
war,
objection
claim of
conscientious
proceedings
tions,
entire
must vitiate the
(the
Capt.
theory of
Sanders
erroneous
that the
not clear
it is
at least where
here).
to show
There was
ground.
legitimate
Board relied on some
or on
the board
on this
whether
acted
Here,
impossible
determine
where it is
ground.
another
The court cited the
Appeal
grounds
exactly
Badt,
case
Reel v.
of United
ex rel.
States
integrity of the Se
decided,
Cir.,
said,
F.2d
2
213
141 F.2d
least,
demands,
System
at
Service
lective
page
“In
last
at
89:
cited
il
recommend
that the Government not
legal grounds.”
agencies as
court
indicated that such
processes
these
boards should make
reveal,
‘sufficiently explicit
so far
case of
decided
When
court
reasonably practicable,
be
whether
Shepherd
v. United
keeping
stat-
or
are
within the
had not
F.2d
decision
the Sicurella
they purport
ute under which
act’.
available at
come down. Had it been
page
Of course such
at
848.
made ex-
that time this court could have
language
elabo-
quoted
disclosure need not
be technical
use
cellent
last
necessary
rate.
distinguishable
And it
all
is not
at
facts
there are
the usual case
troversy
the issue in con-
where
from those dealt with in the Sicurella
and the
of decision
dealing
case.
with the absence
evi-
apparent
But
made
record itself.
dence as whether the board did
did
us,
disregard
in cases like the
one now before
advice
the erroneous
it
reclassifying
ain
board should indicate
possible
received,
had
we mentioned the
general
way why it
argument
might
and non-technical
presump-
that there
changed the classification.”
regularly and
board
disregarded
properly
advice.
offered
evidence
behalf
said,
page
find
946: “[W]e
F.2d
the United States was the selective serv
this,
persuaded in
it difficult to be
which,
said,
ice record
I have
failed
presumption
case,
criminal
that such a
general
to indicate
“in a
and non
either
negative
sufficient
the likelihood
way”,
any
technical
or in
manner what
upon the
that the
in fact relied
er-
changed
ever, why the classification.1
roneous advice
Regulations,
22, 1604.58,
Title
re
reversed the conviction.
Justice.” We
quired
keep
the Board to
minutes of its
States, Cir.,
See also Batelaan v. United
meetings.
provision
That
furnished it
case,
Shepherd
ROYAL LACE Inc. PAPER Appellants, Company, E. B. Mott PRODUCTS, Inc.,
PEST-GUARD Appellee. Appeals
United States Court
Fifth Circuit. 9, 1957.
Jan. of another here have shown disclosure of the 2. I said must itself have is, prepared appellant. appellant, that I am not contention That letter say Captain showing denied a he access here discloses opportunity letter, right re and an the Gonzales Sanders denial of the stated United Gonzales fute its statements. case. say opin- Also, S.Ct. I need little about 412 , positive after this case decided that “There 99 L.Ed. ion’s statement although tried, held there the board of- in this case that evidence yet regulation effect, express to that no a 1-A-O classification fered Regula “implicit hap- in the Act and If that refused it.” against underlying just way pened our an- tions—viewed concepts would show regularity procedural why Ayers’ classification other reason copy thought play” a a Jus fair was void. longed If board he be- basic duty put to an in 1-A-O it tice appeal registrant. there, board must be furnished “it him was not the local * * * say reg- rule should re board istrant should quire placed see have that this not be certain Captain merely meet the Sanders let he chance to because did not The record here fails show that classification”. Franks v. ter. want Cir„ or heard ever saw of the let differing matter, However, This from that do not so read the ter. I record. my dissent, happened I discussed is some was that when have What classified would concerning appellant thing him 1-0 it asked if he might accept service, have testified. non-combatant “at- himself His testi part replied wounded”, mony the trial is not and he tend the my record here. Because doubts as not. could service record to whether selective