United States v. Cabbage

• Decision Date: 31 July 1970
• Docket Number: No. 19775.,19775.
• Citation: 430 F.2d 1037
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles LaVerne CABBAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

430 F.2d 1037 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Charles LaVerne CABBAGE, Defendant-Appellant.

No. 19775.

United States Court of Appeals, Sixth Circuit.

July 31, 1970.

Howard Moore, Jr., Atlanta, Ga., for defendant-appellant; Peter E. Rindskopf, Atlanta, Ga., on brief.

J. N. Raines, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.

Before EDWARDS and McCREE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

EDWARDS, Circuit Judge.

Appellant was convicted after jury trial before the United States District Court for the Western District of Tennessee on a charge of knowingly and willfully refusing to report for and submit to induction into the armed forces of the United States, in violation of 50 App. U.S.C. § 462 (Supp. IV 1965-69). He was sentenced to four and one-half years.

On appeal he contends that there is no basis in fact for his I-A classification; that the Selective Service System is racially and prejudicially imbalanced against Negroes; that he was deprived of due process of law by entry into his Selective Service file of a prejudicial FBI report without his knowledge or opportunity to answer; and that his local Selective Service Board was improperly constituted, in violation of 32 C.F.R. 1604.52(c), a Selective Service regulation.

Appellant registered with Local Board 83 in Memphis, Tennessee, and on May 8, 1964, was classified I-A. As a student first at Owen College and then at Morehouse College, he was classified II-S. This classification was continued (I-SC) April 17, 1967, to allow him to graduate from Morehouse College.

In April and June of 1967 appellant twice requested conscientious objector forms, but never filled out and returned them. On October 17, 1967, appellant was reclassified I-A by his Local Board. Appellant then asked for an appeal and for a personal appearance before the Board. This was granted and he appeared before the Board on November 14, 1967.

At his hearing before the local Selective Service Board, appellant contended that he did not fill out the Selective Service forms for conscientious objector status because they required affirmation of religious beliefs which had been held to be an unconstitutional requirement in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). The file discloses, however, that while there was evidence to the contrary, there was information from which the Local Board could appropriately have deduced that appellant objected to mandatory service through the selective system in any form, whether combatant or noncombatant. When pressed by the secretary of the Board as to what classification he should have, appellant first replied "none" and subsequently "IV-F," the latter being, of course, a classification available only after an armed forces physical examination.

Subsequent to the oral hearing before the Board and the unanimous continuation by that Board of appellant's I-A classification, the secretary of the Board wrote a letter, dated November 24, 1967, which letter was subsequently included in the Selective Service file which went to the Appeal Board. A portion of that letter serves as the basis for appellant's claim here that he was deprived of due process of law. This letter stated in part:

"This office has received a report from F.B.I. Agent sic that registrant has been active for about a week on the college campuses here in Memphis — Memphis State University, Lemoyne College, and Owen College, trying to organize `black power\' followers. The latter two are all-negro colleges. This registrant has been under F.B.I. investigation for quite awhile. His actions are being closely watched by the F.B.I."

The sequence of dates in the Selective Service file which is before us on this appeal would allow the inference that the FBI report referred to was not before appellant's Local Board either at the time of his I-A classification or at the time of his hearing and the continuation of the I-A classification. But it clearly was in the Selective Service file which the Appeal Board reviewed de novo, and it does not appear that appellant or his counsel ever actually saw it or knew about it until after the date of the Appeal Board's affirmation of his I-A classification on March 13, 1968.

Thereafter appellant was routinely notified to report for induction and failed to do so. His indictment and trial followed.

Appellant's Local Board consisted of four citizens who, as required by the statute, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1965-69), were residents of the county concerned. Only one of them, however, lived in the area over which Local Board 83 had jurisdiction. He was a Negro, as is appellant. The other three members of the Board were white and lived outside of Local Board 83's area. The government stipulated at trial that there were qualified citizens in the area of Local Board 83 who could have been appointed and who could have served.¹

We find no merit to appellant's first two issues, as stated above. Examination of this file leaves us unable to say that there was no "basis in fact" for the classification decided upon by the Local Board. 50 App. U.S.C. § 460(b) (3) (Supp. IV 1965-69); Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946). Further, the record does not disclose either racial discrimination in the composition of the Board or prejudice to appellant in that regard. Clay v. United States, 397 F.2d 901 (5th Cir. 1968), vacated and remanded on other grounds sub nom., Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969).

We believe, however, that appellant's next claim of a due process violation is well-founded. The placing in his Selective Service file of a summary of an FBI report charging that he was "trying to organize `black power' followers" and was "being closely watched by the F.B. I." was done without his knowledge, and without any notice to him. While this report may never have seen by Local Board 83 prior to its I-A classification of appellant, it clearly was before the Appeal Board which reviewed the record de novo. Appellant had no opportunity to explain or contradict the information contained therein. Even though one might argue that the statements just quoted were somewhat ambiguous, we feel that in the context of this proceeding they were clearly prejudicial to appellant's claims.

We believe this case is controlled by Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955). We recognize that Gonzales dealt with Selective Service appeal procedures which have now been repealed. But the fair hearing requirement laid down by the Supreme Court is just as applicable to this case as to Gonzales:

"Just as the right to a hearing means the right to a meaningful hearing, United States v. Nugent, supra 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953); Simmons v. United States, supra 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), so the right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered." Gonzales v. United States, supra, 348 U.S. at 415, 75 S.Ct. at 413.

The Court spelled out Gonzales' right to know "all the facts before the Board":

"In the usual case it is the Appeal Board which renders the selective service determination considered `final\' in the courts, not to be overturned unless there is no basis in fact. Estep v. United States, 327 U.S. 114 66 S.Ct. 423, 90 L.Ed. 567.

"It should be emphasized, moreover, that in contrast to the strictly appellate functions it exercises in other cases, the Appeal Board in handling conscientious objector claims is the first selective service board to receive the Department\'s recommendation, and is usually the only decision-making body to pass on the entire file. An opportunity for the registrant to reply is therefore the only means of insuring that this Board will have all of the relevant data. Furthermore, if the registrant is to present his case effectively to the Appeal Board, he must be cognizant of all the facts before the Board as well as the over-all position of the Department of Justice. See Ohio Bell Telephone Co. v. Public Utilities Comm., 301 U.S. 292, 300-305 57 S.Ct. 724, 81 L.Ed. 1093; United States v. Abilene & So. Ry. Co., 265 U.S. 274, 289 44 S.Ct. 565, 569, 68 L.Ed. 1016; Interstate Commerce Comm. v. Louisville & N. R. Co., 227 U.S. 88, 93 33 S.Ct. 185, 187, 57 L.Ed. 431." Gonzales v. United States, supra, 348 U.S. at 412-413, 75 S.Ct. at 412. (Emphasis in original.)

In a case which parallels the instant case very closely, the Eighth Circuit held:

"The action of the local board in soliciting advice from a minister unconnected with the Selective Service System after allowing him to view the registrant\'s file evidences a fundamental ignorance of selective service regulations. The adverse commentary was made a part of Owen\'s file which was forwarded by the local board to the appeal board and by the appeal board to the Department of Justice. We may assume that the information was considered by the appeal board. Striker v. Resor, (D.N.J.1968) 283 F.Supp. 923. Moreover, it is clear that Owen had no knowledge of the information and, consequently, no opportunity to rebut it until he received a copy of his selective service file subsequent to his refusal to submit to induction. While we may charge literate registrants with knowledge of information with which they are directly confronted, such as that contained on registration or classification cards, we may not expect a working knowledge of selective service regulations or inquiry at the office of the local board to guard against information received from an outside source. Inherent in the most narrow view of due process is the right to know of adverse evidence and the

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