DeRemer v. United States

• Decision Date: 26 January 1965
• Docket Number: No. 17590.,17590.
• Citation: 340 F.2d 712
• Parties: Dale Verne DeREMER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.2d 712 (1965)

Dale Verne DeREMER, Appellant, v. UNITED STATES of America, Appellee.

No. 17590.

United States Court of Appeals Eighth Circuit.

January 26, 1965.

Clay R. Moore, Mackall, Crounse, Moore, Helmey & Holmes, Minneapolis, Minn., made argument for appellant and filed brief.

John J. Connelly, Asst. U. S. Atty., Minneapolis, Minn., made argument for appellee and filed brief with Miles W. Lord, U. S. Atty., Minneapolis, Minn.

Before MATTHES, BLACKMUN and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

After executing a waiver of trial by jury, appellant was tried, convicted and sentenced to two (2) years' imprisonment by the District Court for the District of Minnesota, for refusing to submit to induction into the Armed Forces of the United States in violation of § 462, Title 50 App.U.S.C.A.; and he has duly perfected this appeal therefrom.

At his trial, appellant challenged on constitutional grounds the administrative process leading up to the order of his induction into the Armed Forces; contrary to his claim for a I-O (conscientious objector) classification. He makes the same contentions here. The memorandum opinion of the District Court adjudicating appellant's guilt may be found at 221 F.Supp. 553.

Appellant has had a long history with the Selective Service System of the United States. His original registration was on July 26, 1954, before Local Board No. 7, Blue Earth County, Mankato, Minnesota. Since that registration, to the present time, appellant has claimed right to a I-O classification that would exempt him from both combatant and non-combatant training and service under § 456(j), Title 50 App., U.S.C.A., based on his religious belief as a member of Jehovah's Witnesses. Contrary to that claimed exemption, appellant was first classified I-A by his Local Board in 1954. He took an appeal from that classification to the Appeal Board for the State of Minnesota. In the course of processing that appeal, appellant appeared before a Department of Justice hearing officer, Mr. Philip Stringer, on May 22, 1956, who, after receiving evidence of appellant's then claim to a I-O exemption, "recommended to the Department of Justice (his) appeal not be sustained." Thereafter, the Department of Justice, acting by and through the Chief of its Conscientious Objector Section, made a similar recommendation to the Appeal Board. On review of appellant's selective service file, the Minnesota Appeal Board classified appellant I-A. Notwithstanding that classification, appellant was not immediately inducted into the Armed Service, because, on pre-induction physical examination, he was found to be unacceptable. As a consequence, he was reclassified IV-F. Following the termination of his physical disability and on re-examination, appellant's Local Board reclassified him I-A on April 21, 1959. However, due to his then employment in a defense plant, Northern Ordnance, Inc., he was given a temporary classification of II-A, until August 1960. Appellant did not appeal from that classification. Throughout the period of time here considered, appellant has been continuously employed by Northern Ordnance, Inc., which factory was devoted exclusively to defense production. The last-above-mentioned classification was made at the request of appellant's employer.

On August 16, 1960, appellant's Local Board again classified him I-A. Appellant, after unsuccessfully contesting that classification, again appealed to the Appeal Board, supra. Such appeal was again referred to the Department of Justice for investigation to be administratively processed as set forth at 32 C.F.R., § 1626.25. The F.B.I. conducted another investigation and made a report, and appellant again appeared before Mr. Stringer, the same hearing officer before whom he had appeared in 1955. After holding the second hearing, Mr. Stringer filed a report with the Department of Justice on April 13, 1961, dubiously recommending that appellant "be classified as a conscientious objector, opposed both to combatant and noncombatant training and service." Notwithstanding, the Department of Justice, by letter dated May 2, 1961, to the Appeal Board, recommended that defendant be classified I-A-O, i. e., opposed only to combatant service. The letter so recommending contained, among other things, a summary of the last-mentioned hearing officer's report and recommendation; and enclosed a copy of the report as made by the F.B.I. After receipt thereof, a copy of all such communications were sent by the Appeal Board to defendant on May 16, 1961, together with notice that he had thirty (30) days to file a written reply concerning such recommendation. Appellant acknowledged receipt of that communication by letter to the Appeal Board dated June 12, 1961, in which he again reasserted his religious convictions and stated:

"I have been appealing for IV-D, I-O, and my place of employment has been appealing for a II-A classification in my behalf.

"Reason has been given wherein the Appeal Board does not think I qualify for a IV-D and I-O. If this is the case, why hasn\'t consideration been given to the II-A classification?

"I would like to have you consider this classification."

Thereafter, on June 24, 1961, the Appeal Board classified appellant I-A-O (opposed to military combat service only). Appellant was ordered by his Local Board to report for induction on December 13, 1961. This he did but refused to step forward and be inducted into the Armed Forces of the United States when so ordered by competent authority. Thus his prosecution, conviction, and the sentence from which he here appeals.

To secure a reversal of his conviction and sentence the primary argument appellant presents is: The order for his induction into the Armed Forces of the United States is basically unconstitutional and invalid since he was not furnished with a facsimile "copy of the hearing officer's report" nor was such a copy placed "in defendant's selective service file" for review by the Appeal Board when it came to consider his appeal. As a consequence, appellant claims, he was "denied due process and a fair hearing," leading to the order of his induction into the Armed Forces, and his conviction here cannot stand. That identical contention was made by appellant before his trial court and adversely ruled by District Judge Devitt, at page 555 of 221 F.Supp. In the light of controlling authority, Judge Devitt could find no merit in appellant's contention, ante. Neither can we.

The general procedure to be followed by a person claiming conscientious objector classification was reviewed and generally approved from a consideration of constitutional standards of due process, in United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417. There it is pointed up that under the appellate procedure provided by 32 C.F.R., § 1626.25, nothing is reviewed by the Appeal Board which has the ultimate responsibility for determining the classification of an inductee, which is not also in the possession of, or made available to, the inductee. Notwithstanding, appellant asserts the constitutional guarantee of a fair hearing requires more, and that all the evidence examined by the F.B.I. and that heard by the hearing examiner, must be before the Appeal Board and made available to the inductee, including a verbatim copy of the hearing officer's report and recommendation, if he is to have a fair hearing; citing in support thereof, Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467; Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954).

Since the inception of the Selective Service system the various classification procedures have, time and again, been considered by the courts, including the procedures surrounding conscientious objector claims, and certain guidelines for judicial review have merged from these cases. The scope of review is "the narrowest known to the law." Blalock v. United States, 247 F.2d 615, 619 (4 Cir. 1957). Courts will interfere with a classification only if there is a lack of basic procedural fairness, or if there is no basis in fact for the classification. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947); Swaczyk v. United States, 156 F.2d 17 (1 Cir. 1946). A claimant for an exemption is entitled to a fair hearing before an impartial officer, i. e., he is entitled to adduce evidence in his own behalf, and to receive a fair résumé of any adverse evidence adduced. These are necessary for basic procedural fairness; but this requirement of a fair hearing does not mean that he is entitled to a full-scale "trial" by the Department of Justice. United States v. Nugent, supra. The claimant is entitled to a fair résumé of the F.B.I. inquiry, Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), although not entitled to the investigative report of the inquiry itself, United States v. Nugent, supra; Campbell v. United States, 221 F.2d 454 (4 Cir. 1955). He is entitled to a copy of the Department of Justice recommendation to the Appeal Board so that he will have a fair opportunity to rebut it before the Board. Gonzales v. United States, supra.

It is noted that in the above general considerations there is no mention of the hearing officer's report as here questioned. Such a report was considered inter alia in Gonzales v. United States, 364 U.S. 59, 80 S.Ct. 1554, 4 L.Ed.2d 1569 (1960). In that case the Supreme Court stated:

"* * * the hearing officer\'s report is but intradepartmental, is directed to the Attorney General and, of course, is not the recommendation of the Department. * * * It is but part of the whole process within the Department that goes into the making of the final recommendation to the appeal board." 364 U.S. 59, 63, 80 S.Ct. 1554, 1557.

Having thus characterized such report and noting that it was not provided to the Appeal Board, the Court held that the production...