Bouziden v. United States

• Decision Date: 07 April 1958
• Docket Number: No. 5642.,5642.
• Parties: Jimmy James BOUZIDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

251 F.2d 728 (1958)

Jimmy James BOUZIDEN, Appellant, v. UNITED STATES of America, Appellee.

No. 5642.

United States Court of Appeals Tenth Circuit.

January 29, 1958.

Writ of Certiorari Denied April 7, 1958.

Hayden C. Covington, Brooklyn, N. Y., for appellant.

Philip R. Douglas, Asst. U. S. Atty., Oklahoma City, Okl. (Paul W. Cress, U. S. Atty., Oklahoma City, Okl., was with him on the brief) for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

Writ of Certiorari Denied April 7, 1958. See 78 S.Ct. 716.

LEWIS, Circuit Judge.

Bouziden stands convicted of refusing to submit to induction into the armed forces. 50 U.S.C.A.Appendix § 462. He seeks relief from the judgment and sentence urging that the trial court twice refused, prejudicially, to properly apply the rule and philosophy announced in Jencks v. United States¹ and further erred in failing to recognize the denial of procedural due process in the administrative channels leading to his classification as 1-A. The contentions are interlaced in law and fact.

Bouziden is a member of Jehovah's Witnesses. Asserting subjective sincerity in his belief in the teachings of that religion, appellant filed a draft classification questionnaire on March 4, 1952, claiming exemption from conformable military service. The local draft board refused him classification as a minister of religion (IV D)² and similarly rejected his claim to a 1-O classification, that of a conscientious objector. Bouziden appealed his 1-A status and his file was referred to the Department of Justice for investigation and recommendation in accordance with 50 U.S.C.A.Appendix, § 456(j). That Department recommended to the appeal board that Bouziden be denied classification as a conscientious objector, noting in its report that the applicant believed in theocratic warfare and was willing to fight in self defense.³ The appeal board classified him 1-A and he refused to submit to induction on May 25, 1953. Prosecution was begun but dismissed and appellant's file was referred to and reopened at the local board level.

On May 4, 1955, the local board again classified appellant 1-A, and upon his appeal, his file was again forwarded to the Department of Justice. The Federal Bureau of Investigation made inquiry and observation of Bouziden's background and associates and submitted a report to the departmental hearing officer and a résumé to appellant. Appellant requested that the hearing officer send a copy of the full F. B. I. report to the appeal board and another copy to him. This was not done.

Appellant considered the F. B. I. résumé to be unfair and wrote the hearing officer to that effect. Particular complaint was made of statements questioning the moral conduct of certain of appellant's acquaintances and relatives, activities of which appellant asserted he had no knowledge. The résumé contained statements of witnesses favorable to appellant as well as those who thought him not sincere in his religious beliefs. Sincerity of belief is the essence of the inquiry made by the Department of Justice. Bradshaw v. United States, 10 Cir., 242 F.2d 180.

On September 22, 1955, a hearing was held during which both appellant's wife and the hearing officer took notes of the occurrence. The hearing officer reported unfavorably upon appellant's sincerity claim, the Department of Justice recommended against his request to be classified as a conscientious objector, the appeal board classified him as 1-A, and the local board ordered him to report for induction on July 24, 1956. He refused to submit to induction and this prosecution followed.

Trial was had to the court sitting without a jury. Appellant again sought production of the entire F. B. I. report and his demand was again refused. He asserts this to be error compounded, claiming the right to the report both in the instant case and during the course of the precedent administrative proceedings.

Against an assertion that the Fifth Amendment grants the applicant the right to inspect the investigators' reports, it was held in United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, that the Justice Department satisfies its statutory and constitutional duties when it supplies a registrant with a résumé of any adverse evidence and permits him to produce all relevant evidence in his own behalf before an impartial hearing officer. The hearing outlined by the statute is not an all-out trial wherein the registrant may collaterally attack the testimony obtained in the prehearing investigation.

Since the Nugent case was not expressly overruled by Jencks v. United States, supra, appellant seeks first to distinguish his case from the Nugent case and bring it within the rule of the Jencks case and second to show that the Nugent case was indirectly overruled by the Jencks decision.

Appellant sought the production of the complete investigative reports in the trial of his criminal prosecution for failing to submit to induction after having been so ordered by his local board. Therefore, he avers that the question is not whether the hearing was conducted by the appeal board in accordance with the standards of due process, as in Nugent, but rather goes to his right to those records in defense of a criminal action in an attempt to show that the order of the board was baseless in fact and hence unlawful. This theory has twice been tested in the federal system since the Jencks decision, the two courts arriving at opposite conclusions in United States v. Jacobson, D.C.W.D.Wash., 154 F.Supp. 103 and Blalock v. United States, 4 Cir., 247 F.2d 615, 620.

In the Jacobson case, the District Court emphasized the fact that although only the résumé was submitted to the appeal board and that board made its final determination without considering the full F. B. I. reports, the two recommendations from the Justice Department were probably highly influential and had been made by men who had studied the full reports. It was that court's opinion that the Jencks case required that the F. B. I. reports in their original form be produced for the defendant's inspection or that the prosecution be dismissed.

The court further recognized that the inevitable result under this view would be to entitle the registrant to the files in a criminal prosecution which were closed to him before the administrative bodies, thus nullifying the clear distinction drawn between the original reports and the résumé in Nugent, but dismissed this argument as not being in accord with the philosophy of Jencks.

On the other hand, the Fourth Circuit adhered to the view of the Nugent case in Blalock stating:

"The history of the treatment of F. B. I. reports, both in Nugent and in other cases, however, indicates the sharp distinction between applications by defendants in ordinary criminal cases to examine statements made to the F. B. I. by witnesses called to the stand by the Government, and demands for the production of such reports in conscientious objector cases. It is arguable that the résumé furnished the accused in a Selective Service case is like a witness; that the résumé should be subject to testing for fairness and completeness by a process similar to that applied to a witness whose testimony may be impeached by showing prior conflicting statements. Moreover, it is undeniably true that one cannot easily judge the fairness and completeness of a résumé without looking at the documents it purports to summarize * * * However plausible these contentions, we cannot accept them, for the point was considered and rejected in Nugent."

And further that:

"Whatever may be the boundaries and limitations of the Jencks doctrine, we think it clear that it is subject to the qualification of the Nugent case for the type of problem here involved, that is, testing the accuracy of the résumé furnished in conscientious objector cases, in contrast to impeachment of witnesses in criminal cases. The Nugent case explicitly holds that if the defendant was furnished a résumé and accorded an opportunity to be heard, he cannot complain that he was not shown the investigative records, nor can he insist on their production at the criminal trial."

Appellant was informed of all adverse information and conclusions destined for consideration by the board of appeal; he was granted a hearing and permitted to enter...