United States v. Purvis, 72

• Citation: 403 F.2d 555
• Decision Date: 14 November 1968
• Docket Number: Docket 32187.,No. 72,72
• Parties: UNITED STATES of America, Appellee, v. Jeffrey Hale PURVIS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

403 F.2d 555 (1968)

UNITED STATES of America, Appellee, v. Jeffrey Hale PURVIS, Appellant.

No. 72, Docket 32187.

United States Court of Appeals Second Circuit.

Argued September 19, 1968.

Decided November 14, 1968.

Kenneth W. Greenawalt, New York City (Raymond T. Munsell, New York City, on the brief), for appellant.

Jerome C. Ditore, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty., for the Eastern District of New York, on the brief), for appellee.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Jeffrey Hale Purvis appeals from a judgment of conviction and a sentence of three years in prison by Judge Matthew T. Abruzzo of the United States District Court for the Eastern District of New York for violating section 12(a) of the Universal Military Training and Service Act,¹ 50 U.S.C. App. § 462(a), by refusing to submit to induction into the armed forces. Appellant's refusal was based upon his claim that the selective service authorities should have exempted him, as a conscientious objector, from all military service rather than from combatant service alone. For reasons set forth below, we reverse the judgment of conviction.

I.

It should be noted at the outset that this is not a case in which a notice to report for induction stimulated an apparently slumbering conviction of conscientious objection to war. Appellant's father was a Quaker who "had strong convictions * * * and dominated the family";² in his formative years, appellant attended Quaker services with his family. At age 18 in 1959, after registering with his local draft board, appellant promptly asserted a claim for exemption from military service based on religious training and belief as a conscientious objector.³ Shortly thereafter, appellant was classified 1-A (available for military service); upon receiving notice thereof, he requested a personal appearance before the local board. Before that occurred, however, the board advised appellant that since he was a college student, he would be classified 2-S (student deferment) after the board received a confirmatory form from his college, and that consideration of his conscientious objector claim could be postponed to a later date. Early in 1960, the board received the proper form from appellant's school, and the following month appellant was classified 2-S. He continued to be so classified until July 1961, when he was again classified 1-A after leaving school for academic reasons.

Appellant again sought a conscientious objector exemption from military service, both before the local board, which denied it, and before the appeal board. The latter body, invoking the special procedure for processing such claims then in existence, sent appellant's file to the Department of Justice. This called for an investigation of appellant by the Federal Bureau of Investigation, a subsequent hearing before a special officer appointed by the Department to whom the officer would report, and a recommendation thereafter by the Department to the appeal board.⁴ Accordingly, in the fall of 1961, the FBI conducted an investigation of appellant's character and good faith. According to the resume of the FBI report in the record, the results of the investigation can fairly be described as favorable to appellant; the report revealed that he came from a Quaker family background and that his friends and teachers regarded him as sincere in his conscientious objector beliefs. The next step in the Department of Justice procedure (the hearing before a special hearing officer) was not held until October 1964, an obviously undue delay.⁵ Appellant was accompanied at the hearing by his father and his Sunday School teacher, also a Quaker. Thereafter, the hearing officer sent his report to the Department of Justice, recommending that appellant's claim be upheld only in part and that appellant be classified 1-A-O (exempt from combatant but not non-combatant service), rather than 1-O (exempt from all military service). In his report, which was not sent to appellant, the hearing officer relied heavily for his conclusions upon statements allegedly made by appellant at the hearing.

In April 1965, the Department of Justice submitted to the appeal board its own recommendation, which incorporated much of the hearing officer's report, particularly his attribution of certain statements to appellant and his conclusion that appellant should be classified 1-A-O rather than 1-O. The appeal board thereafter forwarded to appellant copies of the Department of Justice recommendation and the FBI resume.⁶ However, a copy of the report of the hearing officer to the Department of Justice was not sent to appellant; indeed, the appeal board itself did not receive that report, which went only to the Department. In response to the appeal board's advice that he could reply in writing "concerning the recommendation of the Department of Justice," appellant denied making a number of the statements attributed to him by the hearing officer. The reference to them in the recommendation of the Department of Justice was the first notice appellant had of the hearing officer's version of his testimony. Appellant also claimed that the hearing officer had offered to "make a deal" with him to recommend a 1-A-O classification, if appellant would accept it.⁷

Thereafter, the appeal board followed the recommendation of the Department of Justice and in June 1965 classified appellant 1-A-O. In November 1965, appellant was ordered to report for induction on December 7, 1965. He reported, refused to be inducted, and subsequently was indicted. His case was tried in May 1967 before Judge Abruzzo sitting without a jury, but was reopened at the request of the Government in September 1967. The judge found appellant guilty and sentenced him to three years in prison.

II.

Appellant's main contention is that the order for his induction was void because his 1-A-O classification was arbitrary and capricious since it had no basis in fact and was the product of an unfair hearing in the proceedings conducted by the Department of Justice.⁸ Thus, appellant urges no broader test of review for this court than that developed in previous cases. E. g., Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).⁹ These make clear that the scope of our inquiry is a narrow one. However, whether there is a sufficient basis in fact for appellant's classification and whether his hearing in the Department of Justice was fair are questions of law on which we must pass with independent judgment.

The Government relies here on various factors, each of which the district court held was sufficient standing alone, to establish a basis in fact for appellant's 1-A-O classification by the appeal board. The most significant of these is the recommendation of the Department of Justice to that board, particularly the portion stating that the hearing officer reported that appellant

admitted that he would bear arms as a member of the Armed Forces of the United States and even kill if necessary to defend the United States against an aggressive attack by an armed enemy, and upon further questioning he stated that he would have no objection to serving in the medical corps * * *.

As noted above, as soon as appellant learned that the hearing officer so quoted him, he denied making the statements,¹⁰ a denial repeated at his trial before Judge Abruzzo.¹¹ But, making both substantive and procedural arguments, appellant also claims that reliance upon the Department's recommendation is improper. Thus, he contends that a "fact" referred to in a Department of Justice recommendation but not otherwise in his selective service file cannot provide the basis in fact for his classification, that he had the right to an attorney in the proceedings before the hearing officer, that he did not receive a transcript of that hearing, and that it was improper to deny him an opportunity to rebut the hearing officer's report until after the Department had made its recommendation to the appeal board and the case had gone back to that body.¹²

We do not agree with appellant's general proposition that an appeal board can never rely on material found in the Department of Justice recommendation which does not otherwise appear in a registrant's selective service file. It is true that United States v. Stasevic, 117 F.Supp. 371 (S.D.N.Y.1953), may be read as holding what appellant now contends. However, the broad language of that decision has been limited, see United States v. Corliss, 173 F.Supp. 677, 683 (S.D.N.Y. 1959), aff'd, 280 F.2d 808 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 167 (1960), and other cases have found that facts reported only in the Department of Justice recommendation could be a sufficient basis for a classification. See, e. g., Tomlinson v. United States, 216 F.2d 12 (9th Cir. 1954), cert. denied, 348 U.S. 970, 75 S.Ct. 528, 99 L.Ed. 755 (1955); Kent v. United States, 207 F.2d 234 (9th Cir. 1953); cf. Keefer v. United States, 313 F.2d 773 (9th Cir. 1963). When Congress established the special inquiry and hearing procedure to process conscientious objector claims, it seems likely that it assumed that the Department of Justice, in making its recommendation, would consider information uncovered by its own investigation, which might not otherwise appear in the registrant's file before the appeal board.¹³ The critical element in a conscientious objector claim is often the registrant's sincerity in his beliefs. It should be beyond dispute that Congress could assist draft boards — as it did from 1940 to 1967¹⁴ — by making available to them the investigatory resources of the Department of Justice and the Department's general policy approach to a national classification problem.¹⁵

However, that the Department's recommendation might provide a basis in fact for an appeal board classification does not end the case. Appel...