The opinion of the court was delivered by: MODARELLI
Defendant, Thomas Louis De Lime III, was indicted under the Selective Service Act, 50 U.S.C.A.Appendix § 462, for wilfully refusing to submit to induction in the armed forces of the United States. Trial by jury was waived by defendant. Lengthy briefs were submitted after trial.
Defendant claims he was illegally ordered to report for induction as a result of the arbitrary and capricious action of his local board in failing to give consideration to his claim for deferment as a conscientious objector under Section 6(j) of the Act, 50 U.S.C.A.Appendix, § 456(j), which provides exemptions from military service -- partial or full, depending upon the circumstances -- for any person 'who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.' The basic issue is whether, under the established facts and law, the defendant was denied any of his proceedural rights under the Selective Service Regulations.
On October 18, 1951, the defendant's board mailed to him a classification questionnaire; on October 30, 1951, the completed questionnaire accompanied by a completed Special Form for Conscientious Objector was received by the board. The questionnaire instructed any registrant 'who, by reason of religious training and belief, is conscientiously opposed to participation in war * * *' to sign the following statement: '* * * and for this reason hereby request that the local board furnish me a Special Form for Conscientious Objector (SSS Form No. 150) which I am to complete and return to the local board for its consideration.' Defendant signed the statement, but struck out the words 'religious training and.' The chief clerk of the board testified that although the board's records did not indicate that both the questionnaire and special form simultaneously were sent to the defendant, she believed they were. The defendant again struck out the words 'religious training and' on the special form and from a statement which he signed similar to that contained in the questionnaire. In written responses to questions contained in the special form regarding his religious training and beliefs, defendant wrote that he did not believe in a Supreme Being 'In the generally accepted sense.'; that 'My belief is philosophical rather than religious. It is based on the assumption of equality among mankind, and that no man shall make of himself a god.' Further, 'I acquired my belief by thinking, during the past 19 years. No person whom I know holds the same or similar beliefs and I have not been taught in any way by a statement of such beliefs.' On November 13, 1951, the board received a written statement from defendant:
'I, Thomas Louis deLime III, do hereby revoke and catagorically deny any and all statements made in answer to questions which presuppose a special knowledge a to the interpretation or definitions of words or phrases used therein; when said interpretations or definitions are not in accord with general everyday English usage, or first or second standard dictionary definitions; or when said words or phrases acquire special interpretations or definitions due to any federal or state law, intent of those who wrote, spoke, or voted upon such a law, legal precedent, rulings of selective service boards, or of any other individuals or group of individuals, or for any other reason.' (signed) Thomas Louis deLime III.
On or about January 16, 1952, defendant was classified 1-A by the board. Pursuant to defendant's request, he personally appeared before the board on February 6, 1952, and testified in response to questions. The 1-A classification was continued. If the conscientious objector's claim for relief under Section 6(j) is denied by his local board, he is entitled to further review by an 'appropriate appeal board.' All such appeals are referred to the Department of Justice for an 'appropriate inquiry' and a 'hearing.' The Department of Justice then makes a recommendation to the appeal board, which may or may not follow it in reviewing the local board's classification. This case then concerns itself with the procedure, established by regulation and practice, which is followed when a conscientious objector's appeal is referred to the Department of Justice. Shortly after the 1-A classification was continued, an appropriate appeal was instituted.
In conformity with the above procedure, the appeal board forwarded the case to the Department of Justice, which conducted a hearing and rendered an advisory opinion to aid the appeal board in its final determination, as required. Defendant was notified of the pending hearing, of his 'right to be present at such hearing and to present any pertinent evidence in support of your claim' to exemption as a conscientious objector. Attached to the notice were two pages of instructions fully apprising defendant of the nature of the hearing and his rights thereat. Pursuant to the instructions, defendant requested 'the general nature and character of any evidence in his (hearing officer) possession which is unfavorable to, and tends to defeat, the claim of the registrant.' The hearing officer sent a letter to defendant, setting forth information from documents in the board's file: Defendant's disclaimer of any religion; defendant's objections to military service on philosophical grounds rather than religious; defendant's appearance before the board on February 6, 1952, during which he stated that he would not have crossed out the words 'religious training and' on the questionnaire and special form had he known the wording of the law. This despite the fact that the defendant testified before the board that subsequent to filing the questionnaire and special form he had researched the law. Following the appellate hearing, he Department of Justice submitted its advisory opinion to the appeal board, recommending that defendant's claim for exemption be denied, which was the action taken by the appeal board.
Let us now examine the issues set forth by the defendant to determine whether he was denied procedural due process in violation of the Fifth Amendment.
Defendant argues that the presence of a government appeal agent, hereinafter referred to as agent, when he appeared before the board on February 6, 1952, 'was in excess of the jurisdiction granted the local board and flagrantly violated the regulations * * *.'
The agent's duties, generally, under Regulation 1604.71, are to: (a) appeal from any classification by a local board which, in his opinion, should be reviewed by the appeal board; (b) attend such local board meetings at its request; (c) recommend to a local board a reopening of any case where the interests of justice, in his opinion, require such action; (d) render such legal assistance to a local board as it may request; and (e) protect the interests of the government and the rights of the registrant.
Defendant makes much of the fact that under various Selective Service Regulations the mere presence of the agent at the hearing was unauthorized; that he had no express authority to participate in the questioning of defendant; that having so participated, he should have submitted to the board a written report of his findings and recommendations.
Defendant argues that he further was denied due process because of the government's failure to produce at the trial the F.B.I. report submitted to the hearing officer assigned by the Department of Justice to render an advisory opinion to the appeal board.
It should be noted that three weeks prior to the trial, defendant's counsel appeared and argued before Judge Smith of this court, a motion under Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., to produce the F.B.I. report, which was denied. The transcript of Judge Smith's remarks shows:
'Her request for the FBI report will be denied on the basis of the expressed provision of the Statute, 50 USCA Appendix 456(j). There is no indication before the Court that pursuant to the provisions of the Statute or the regulations enacted thereunder, this defendant ever made any request for a summary. If he ...