United States v. Freeman

• Decision Date: 19 January 1968
• Docket Number: No. 16125.,16125.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell FREEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

388 F.2d 246 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Russell FREEMAN, Defendant-Appellant.

No. 16125.

United States Court of Appeals Seventh Circuit.

December 6, 1967.

Rehearing Denied January 19, 1968.

Harry F. Peck, Jr., Hayes & Peck, Milwaukee, Wis., for defendant-appellant, Russell Freeman.

James B. Brennan, U. S. Atty., Thomas J. Jones, Asst. U. S. Atty., Milwaukee, Wis., for appellee.

Before KNOCH, KILEY and SWYGERT, Circuit Judges.

Rehearing Denied January 19, 1968, en banc.

KILEY, Circuit Judge.

Defendant Freeman was convicted by the district court, without a jury of willfully refusing to submit to induction into the armed forces, 50 App. U.S.C. Sec. 462, and was sentenced to two years imprisonment. He has appealed. We reverse.

Freeman was classified 1-A in February, 1961, and received a Notice of Classification (SSS No. 110) which includes notice of the right to a personal appearance and to appeal. He did not appeal. After being ordered to report for physical examination he filed a Special Form for Conscientious Objector (SSS No. 150) requesting the classification of conscientious objector. The Board refused to reopen his classification and informed him of this decision by a letter which included no notice of any right to appeal. Subsequently, after his child was born, Freeman was classified 3-A. In February, 1965, he was again classified 1-A, was sent a Notice of Classification, and again did not appeal. Thereafter, he was found acceptable for military service and was ordered to report for induction. He then submitted a letter refusing to serve because of religious beliefs. He reported for induction and refused to submit. His indictment and conviction followed.

In its letter of February 8, 1962, refusing to reopen Freeman's classification to consider his request for conscientious objector status, the Board stated that it had "reviewed" Freeman's classification with his formal claim to conscientious objector status, that the Board did not "feel" the information in the file warranted reopening the classification, and that he would remain in classification 1-A. Freeman contends that he was denied due process in the Local Board's refusal to reopen his file because of the consequent denial of his right of appeal by failure of the Board to inform him of that right. This contention was a basis urged for acquittal at the close of the government case in the criminal trial before us.

The Fifth Circuit in Olvera v. United States, 223 F.2d 880, held that a Local Board may not arbitrarily refuse to open a registrant's classification where he presents new information which, if true, would require reclassification. The holding was based on the court's view that the refusal to reopen denied a registrant his right of appeal and violated the "concepts of basic fairness which underlie all our legislation." Simmons v. United States, 348 U.S. 397, 405, 75 S.Ct. 397, 402, 99 L.Ed. 453.

We think the Olvera decision is correct because the procedural framework of the draft classification process and the narrowly limited judicial review available to draft registrants make adherence to procedural safeguards crucial to the maintenance of basic fairness.

The draft classification process must be exhausted before judicial power can be interposed. The exhaustion of the process ends with a registrant submitting, or refusing to submit, to induction. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). In the first event, he may, after induction, proceed to challenge the legality of his classification by habeas corpus, Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). In the second event, he may challenge the legality of his classification as a defense to a criminal prosecution for refusal to submit to induction. In either case the judicial function in reviewing the classification is closely circumscribed to the narrow questions of whether the registrant has been denied due process, or of whether the Board's classification is without a basis in fact. Blalock v. United States, 4 Cir., 247 F.2d 615.¹

The danger posed by this narrow scope of review is particularly acute when a claim for conscientious objector status is made. United States v. Wierzchucki, D. C., 248 F.Supp. 788. A sincere claimant for conscientious objector status cannot turn to the habeas corpus remedy because his religious belief prevents him from accepting induction under any circum- stances. As a result he is limited to seeking review in a criminal trial for refusal to submit. In this criminal proceeding, as in any proceeding reviewing a draft classification, his defense of invalid classification is tested by the "basis in fact" formula. Under these circumstances conviction is almost inevitable, since the Board's refusal to grant the conscientious objector classification is based on an inference as to the sincerity of the registrant's belief and there will almost always be somthing in the record to support an inference of lack of sincerity.

Finally, the critical nature of the classification process with regard to processing a claim for conscientious objector status is indicated because our laws have great concern for the protection of freedom of religion and conscience, and the conscientious objector classification is an attempt to carefully balance the need for mobilizing manpower for defense and the protections afforded by the First Amendment.

Despite these considerations, the Chief Executive has expressly withheld the right of counsel in the classification process and there is no unqualified right to advisers for the registrant. Under these circumstances the courts must carefully scrutinize the operation of the classification process in order to further the Congressional purpose of maintaining basic fairness in all proceedings under our law.²

The vital question here is the validity of the Board's denial of Freeman's request to reopen and reconsider his classification in 1962 pursuant to his claim of conscientious objector status in the SSS Form No. 150 in light of the fact that the Board thereby effectually denied Freeman's right of appeal. The pertinent regulation governing the Board's action on this request provides: "The local board may reopen and consider anew the classification of a registrant (a) upon written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * *." 32 C.F.R. 1625.2.

The key difference between a refusal of a Board to reopen a classification, and the granting of reopening followed by a denial of the requested classification, is in the requirement that if the request to reopen is granted the Board must classify the registrant "in the same manner as if he had never before been classified" 32 C.F.R. 1625.11; and must "mail notice thereof on Notice of Classification (SSS No. 110) * * * and on Classification Advice (SSS No. 111) to the registrant * * *." 32 C.F.R. 1625.12. This formal notification is a basis for the registrant's right to a personal appearance and to appeal his classification. When a Board refuses to reopen a classification, formal notice is not required and the Board must merely "advise" the registrant that reopening the classification is not warranted. No notice of any right to appeal is given. Accordingly, we think Freeman was effectually denied, in 1962, his right to appeal the denial of his request for conscientious objector status.

In our opinion the Local Board was compelled to reopen Freeman's classification in 1962 and extend to him all the rights provided in the regulations since he presented new information in his 1962 SSS Form 150 which, if true, entitled him to reclassification.³ The Board deprived him of the right when it, instead of reopening his classification, decided the "merits" of his claim and notified him by...