United States v. Cummins, No. 19670.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: BLACKMUN, MEHAFFY and LAY, Circuit
• Citation: 425 F.2d 646
• Parties: UNITED STATES of America, Appellee, v. Dennis Murray CUMMINS, Appellant.
• Docket Number: No. 19670.
• Decision Date: 26 May 1970

425 F.2d 646 (1970)

UNITED STATES of America, Appellee,
v.
Dennis Murray CUMMINS, Appellant.

No. 19670.

United States Court of Appeals, Eighth Circuit.

April 21, 1970.

Rehearing Denied May 26, 1970.

425 F.2d 647

Louis Gilden, St. Louis, Mo., for appellant.

Daniel R. O'Neill, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel R. Bartlett, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

LAY, Circuit Judge.

Dennis Murray Cummins appeals his conviction of failing to report for induction under the Selective Service Act, 50 U.S.C. App. § 462. Defendant asserts several grounds of appeal; basic to our discussion are the claimed denial of procedural due process and the claim of no basis-in-fact for his I-A classification. We reverse with directions to enter a verdict of acquittal.

Dennis Murray Cummins was reclassified from II-S to I-A on December 5, 1967.¹ On December 19, 1967, he wrote to his local board and stated that he was morally bound to oppose the Vietnam War. He enclosed a copy of a letter dated December 4, 1967, written to General Lewis B. Hershey. In the letter to General

425 F.2d 648

Hershey, he voiced his opposition to the entire Selective Service System, and because of this opposition, he stated that he refused to apply for a classification Form 150 as a conscientious objector. On December 23, 1967, he again wrote his local board, reiterated the fact that he would not cooperate with the Selective Service laws, and this time, enclosed the ashes of his registration certificate. At various times Cummins had participated in demonstrations against the Vietnam War. On January 4, 1968, Cummins filed a request for a duplicate registration form and asked for reinstatement of his II-S deferment on the basis of his present school enrollment. On January 10, 1968, he appealed his I-A classification and at that time stated he was "swept up on the current of the evergrowing movement against the war in Vietnam * * *" and that he would repent and in the future "stay within the confines of the Selective Service System * * *" On January 29, 1968, Cummins requested a Form 150 as a conscientious objector. At this time he had dropped out of school and was no longer eligible for a II-S deferment. On February 8, 1968, the local board received an eleven page report setting forth the registrant's belief in a Supreme Being and the religious basis of his conscientious objection to war. This report was accompanied by letters from various persons who vouched for his sincerity. On February 15, 1968, after a local board appearance, a duplicate registration certificate was issued by the local board and the defendant was reclassified I-O, as a conscientious objector

On March 5, 1968, D. M. Wilson, Deputy State Director, wrote to the registrant's local board that the State Director was taking an appeal from the local board's classification pursuant to 32 C. F.R. § 1626.1 (Supp.1969). The letter, which was placed in the registrant's file, specified that the appeal was taken because:

"(1) the registrant\'s claim of conscientious objection is viewed to be more moralistic and philosophical than religious in nature, (2) he emphasizes his personal activity in social and political antiwar movements as opposed to conscientious religious objection to participation in war in any form, and (3) his actions and statements as documented since December 1967, including open and flagrant violation of federal law, are not consonant with a sincere claim of conscientious objection or the most recent classification action of his local board."

The registrant was notified of the State Director's appeal, 32 C.F.R. § 1626.11(d) (Supp.1969), but was not informed as to the reasons for the appeal. On March 11, 1968, Cummins requested information from the State Director as to the grounds of the appeal. For reasons unknown, this request, as well as a subsequent request, was denied. On April 23, 1968, the State Appeal Board, without setting forth its reasons, reclassified Cummins to I-A. The registrant protested this action to General Hershey who perfected a Presidential appeal. At no time was the registrant, or his Congressman, who also attempted on behalf of the registrant, to find out the basis of the State Director's appeal, ever informed of the grounds set forth in the Deputy Director's letter of March 5, 1968. On July 18, 1968, the National Appeal Board entered appellant's classification as I-A. On August 22, 1968, Cummins failed to step forward for induction which resulted in his indictment and subsequent conviction.

While the regulations provide that a person appealing may attach a statement as to why he believes the local board's classification was wrong, 32 C.F.R. § 1626.12 (Supp.1969), they do not specifically state that a State Director, appealing under § 1626.1, must furnish the registrant with the reasons for his appeal. However, the registrant is given the right to "present all written information * * * necessary to assist the local board," 32 C.F.R. § 1621.12 (Supp. 1969), and the registrant is also entitled to inspect his own file upon request, 32

425 F.2d 649

C.F.R. § 1606.32 (Supp.1969). It is also clear that the Appeal Board may not consider any information which is not contained in the record sent to it by the local board. 32 C.F.R. § 1626.24 (Supp. 1969). Implicit within these regulations is the right to be notified, upon request, of any statements placed in the registrant's file by the State Director in the process of appealing under 32 C.F.R. § 1626.1 (Supp.1969).²

The instant case demonstrates such a basic requirement for disclosing the contents of the Deputy Director's letter to the registrant. Every citizen, including youthful registrants under the Selective Service laws, is entitled to be substantively informed as to any governmental action which may affect his liberty or life. No governmental procedure may stand which fails to provide such information. To be both fairly and timely advised is fundamental to the basic concepts of due process. "Clandestine due process" has never found favor or constitutional basis in courts of law. As this court said in United States v. Owen, 415 F.2d 383 (8 Cir. 1969): "Inherent in the most narrow view of due process is the right to know of adverse evidence and the opportunity to rebut its truth and relevance. Chernekoff v. United States, (9 Cir. 1955) 219 F.2d 721." Id. at 388.

In DeRemer v. United States, 340 F. 2d 712 (8 Cir. 1965), this court observed that "nothing is reviewed by the Appeal Board * * * which is not also in the possession of, or made available to, the inductee." 340 F.2d at 715. This case arose under 6(j) of the Selective Service Act of 1948 (32 C.F.R. § 1626.25) providing for a Department of Justice recommendation based upon a hearing before an examiner and an F.B.I. report.³

It is argued here, however, that the State Director was not making a "recommendation" to the Appeal Board, but was simply stating the reasons why he was appealing. Therefore, it is reasoned the letter was not prejudicial to the registrant. This argument is superficial; whether the adverse allegations were couched in terms of a recommendation or were merely reasons why the local board should be reversed makes little difference. The registrant's file contained a new letter which the Appeal Boards reviewed. The letter set forth adverse opinions furnished by a high official of the Selective Service System. It undoubtedly carried great weight with the lay members of the Appeal Boards. The very least procedural due process can require is that the registrant be informed of the adverse statements. See Weiner v. Local Board No. 4, 302 F.Supp. 266 (D.Del.1969). Cf. Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); Sicurella v. United States, 348 U.S. 385, 75 S. Ct. 403, 99 L.Ed. 436 (1955); United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953); United States v. Purvis, 403 F.2d 555 (2 Cir. 1968); Nevarez Bengoechea v. Micheli, 295 F.Supp. 257 (D.Puerto Rico 1969).

Judgment for acquittal is necessitated for another, equally pervasive reason. Neither the State nor National Appeal Boards set forth the basis of its reversal of the local board's I-O classification. The only possible evidence in the registrant's file which might be considered contradictory to this classification

425 F.2d 650

is that pointed out by the Deputy Director in his letter effecting the appeal. Under these circumstances we can only assume that the State and National Appeal Boards based their classification on one or more of the grounds set forth in the Deputy Director's letter. See United States v. Hesse, 417 F.2d 141 (8 Cir. 1969). The difficulty encountered here is that the State Deputy Director's reasons do not set forth a basis-in-fact for a I-A classification

Peaceful dissent against the Vietnam War or the Selective Service System itself is not inconsistent with religious beliefs conscientiously opposing war. United States v. Pence, 410 F.2d 557 (8 Cir. 1969); cf. Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). Nor can a registrant's claim of conscientious objection be defeated because, in addition to religious belief, it is also based upon a moral and philosophical objection. Cf. United States v. Levy, 419 F. 2d 360 (8 Cir. 1969); Fleming v. United States, 344 F.2d 912 (10 Cir. 1965). Such a claim of conscientious objection is impermissible only when totally devoid of religious belief. United States v. Seeger, 380 U.S. 163, 186, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

In the instant case our search of the record demonstrates no "rational or honest" basis to sustain a finding of insincerity as to registrant's religious beliefs. United States v. Hesse, supra. The fact that Cummins sought other classifications and did...