United States v. Nagler

• Decision Date: 17 May 1973
• Docket Number: Docket 73-1194.,No. 808,808
• Parties: UNITED STATES of America, Appellee, v. Eric Marshall NAGLER, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

484 F.2d 38 (1973)

UNITED STATES of America, Appellee, v. Eric Marshall NAGLER, Appellant.

No. 808, Docket 73-1194.

United States Court of Appeals, Second Circuit.

Argued April 26, 1973.

Decided May 17, 1973.

Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for appellant.

Thomas R. Maher, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before BREITENSTEIN,^* KAUFMAN and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Eric Marshall Nagler appeals from a judgment of conviction for failure to report for induction into the armed forces in violation of 50 U.S.C. App. § 462(a), entered after a trial in the Eastern District of New York before Judge Anthony J. Travia, sitting without a jury. Appellant was sentenced to three years imprisonment and was released on bail pending this appeal. The question before us is whether the denial of appellant's claim for classification as a conscientious objector to combatant and noncombatant training and service (I-O status) and his consequent retention in a I-A classification resulted from a denial of due process. We conclude that the Local Board did not provide adequate reasons for its rejection of appellant's conscientious objection claim, that appellant was thus subject to an invalid induction order, and that his conviction based on that order must therefore be reversed.

The essential facts are undisputed. Appellant duly registered with Local Board 41 in Brooklyn, New York, on June 6, 1960. He was classified I-A on October 18, 1961, but on December 11, 1963, he was reclassified II-S until June 1964 because he had enrolled as a full-time graduate student in psychology at Queens College. On December 16, 1964, he was again classified I — A. After receiving information five days later from Queens College that appellant was still pursuing a graduate degree part-time, the Local Board reviewed his classification on January 20, 1965, but concluded that the new information did "not warrant reopening." On September 22, 1965, Nagler was continued in a I — A classification, and on November 1 he was ordered to report November 12 for an Armed Forces Physical Examination. He reported for the examination as required,¹ though he had in the interim, by letter dated November 5, 1965, requested from his Local Board SSS Form 150, the Special Form for Conscientious Objectors.

The Local Board received appellant's completed application for conscientious objector status on November 22, 1965, along with seven letters in support of it. The Government concedes that his application "made out a prima facie case for reclassification as a conscientious objector."² Appellant based his claim on religious beliefs, including belief in a Supreme Being, which led him to "three deeply felt guiding forces: nonviolence, respect for the individual, and responsibility to the community." He noted his Jewish background, but stressed "freedom of religion" and recorded his membership in the National Ethical Youth Organization of the New York Ethical Culture Society and its Executive Committee when he was in high school, as well as membership in the Fellowship of Reconciliation, the Committee for a Sane Nuclear Policy, and the New York Herpetological Society. He also stated that he was "opposed to all war," that his conscience would not allow him to take part in killing, and that "non-violence is always a possible alternative when nations are at odds" and should be followed if at all possible in situations of individual attack, though if there were no alternatives he allowed that he would in the final analysis fight for his life. Appellant cited his brother, also a conscientious objector, as the one person most influential in guiding him towards pacifism.

No action was taken by the Local Board on Nagler's claim until seven months later, just after he wrote to them requesting permission to leave the United States for a two-month period. On June 14, 1966, he received notification of a discretionary interview before the Local Board, to be held on the following day, June 15. Following his appearance, his claim for classification as a conscientious objector was rejected by the Local Board and his request for a permit to depart the country was denied. The Board's minutes of his appearance and of its disposition include the following notations:

"Reg. appeared requests deferment on grounds of being a conscientious objector. . . . 21 Questions and Answers read and considered by the Board. . . . He stated he was an atheist because he did not believe in the Jewish God or the Christian God. Believes that killing is against civilization and that things should be handled by non-violence. . . . Board finds this registrant to be less than sincere and statements were found to be somewhat inconsistent i. e. re: belief in Supreme Being. Registrant does not qualify for I-O Classification under the existing regulations."

Appellant asked the Board to reconsider its decision and to reopen his classification, complaining that he had not been afforded sufficient time to prepare for the interview. After a lengthy exchange of correspondence, he was granted a personal appearance on September 13, 1966, but his claim was again rejected and he was retained in a I-A classification. The Board's summary stated the following relevant observations:

"Reg. states he is of the Jewish Religion but does not attend any synagogue or Temple. . . . about a year ago he joined the Fellowship of Reconciliation. . . . Attended a Quakers meeting once and only listened. Reg. states that he would not now call himself an atheist. He believes in a Supreme being that does not organize religions but humanists. Basis of objection to war is that it is wrong to kill. . . . The 21 questions and answers read & considered by the Board. Reg. states his answers are the same today. . . . Minutes of meeting dtd June 15, 1966 were considered & same questions & answers received. Conscientious objector for religious reasons. . . . Board finds that registrant to be less than sincere sic and statements made now are inconsistent with statements made at prior hearing held on June 15, 1966. . . . Does not warrant reopening 4-0."

Nagler appealed the Local Board's determination to the Appeal Board which, pursuant to procedures then applicable, 50 U.S.C. App. § 456(j) (1948) and 32 C.F.R. § 626.25(a) (1948), sought an advisory recommendation from the Department of Justice after it had reviewed the file and "tentatively" determined that appellant was not eligible for a I-O classification. A Hearing Officer from the Justice Department interviewed appellant on May 31, 1967, concluded that he was sincere in his religious beliefs and conscientious objection, and recommended that his conscientious objector claim be sustained. In the formal reply to the Appeal Board, however, T. Oscar Smith, Chief of the Justice Department's Conscientious Objector Section, relayed the recommendation of the Department of Justice that the conscientious objection claim not be sustained because (1) it was filed after appellant had been classified I-A and ordered for his physical examination, (2) asserting the claim at that late date was "not persuasive" of "deep and abiding beliefs held for a long period of time," and (3) the inconsistencies cited by the Local Board could be considered in its determination of appellant's sincerity.³

In accordance with Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), appellant was given an opportunity to and did respond to the Justice Department's recommendation. In a 10-page letter to the Appeal Board dated August 27, 1967, Nagler protested that he had informed his Local Board at the earliest point when he had been fully convinced that he was a conscientious objector and that even if he had not been called for a pre-induction physical examination he would still have sent for the SSS Form 150 when he did. He disputed the Local Board's summary descriptions of what he had said at his two appearances before them and their conclusion that he had been inconsistent in his views regarding his belief in a Supreme Being.⁴

Despite appellant's explanations, the Appeal Board unanimously sustained the Local Board's I-A classification on October 9, 1967, without any statement of reasons. Appellant was subsequently ordered to report for induction on November 13, 1967, and he failed to do so. He was indicted on May 13, 1969 and this conviction followed.⁵

Judge Travia rejected appellant's argument that the Local Board's classification of him as I-A was without a "basis in fact," Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and that the Appeal Board's determination was invalid because that Board did not state its reasons for affirming the Local Board's classification. The court accepted as a valid "basis in fact" the Local Board's conclusion that appellant was "insincere" because of inconsistent statements as to his religious views. Judge Travia also interpreted the Appeal Board's determination as resting solely on the ground of insincerity, since the Appeal Board tentatively rejected appellant's claim before it sought the Justice Department recommendation and the judge construed the Department's advice as relating solely to the question of appellant's sincerity. On this interpretation Judge Travia concluded that the failure of the Appeal Board to state the reasons for its determination did not affect the validity of the induction order.

The legal parameters governing this appeal have been indicated by recent rulings of the Supreme Court, Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed. 473 (1972), and Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1973), which have been interpreted by this and other circuits considering the issue...