200 F.2d 46
UNITED STATES,v.NUGENT.
No. 28, Docket 22385.
United States Court of Appeals Second Circuit.
Argued Oct. 7, 1952.Decided Nov. 10, 1952.

Myles J. Lane, New York City (Daniel H. Greenberg, New York City, of counsel), for appellee.
Herman Adlerstein, New York City, for appellant.
Answering a questionnaire sent him by his local draft board, defendant stated that he was a conscientious objector but would accept non-combatant service.  Some twenty months later, in a form sent him by that board, he first stated that he could no longer accept non-combatant service because of the progress of his religious beliefs.  The local board originally classified him I-A, but, when he filed the second form, and after a hearing before the board, it classified him I-A-O.1  He appealed.  Pursuant to the statute and regulations, the Appeal Board referred the defendant's claim to the Department of Justice for inquiry and hearing.  After an inquiry, the F.B.I. made a report.  Subsequently, Gallagher, a hearing officer for the Department of Justice, held a hearing at which defendant appeared and was questioned.  At this hearing, Gallagher did not refer to the F.B.I. report or any of its contents.  He made a report and recommended that the defendant 'be retained in Class I-A-O.'  Smith, a Special Assistant to the Attorney General, after reviewing the 'entire file and record,' recommended that defendant's claim for exemption from non-combatant service be denied.2  The Appeal Board, having before it the Selective Service file, including the recommendations and reports of Gallagher and Smith, voted to continue defendant's classification in Class I-A-O.3  He was subsequently ordered to report for induction as a non-combatant.  He reported, completed his physical examination, and, when found acceptable, refused to take the symbolic 'one step forward' which would have constituted his induction into the armed forces.  He was then arrested and indicted for violation of 50 U.S.C.A. § Appendix 462.
Section 451 of this Act reads in part: '(c) The Congress further declares that in a free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance with a system of selection which is fair and just, and which is consistent with the maintenance of an effective national economy.'
Section 456(j)4 reads in part: 'Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.  Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.  * * *  Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board.  Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing.  The Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith of the objections of the person concerned, and such person shall be notified of the time and place of such hearing.  The Department of Justice shall, after such hearing, if the objections are found to be sustained, recommend to the appeal board that (1) if the objector is inducted into the armed forces under this title, he shall be assigned to non-combatant service as defined by the President, or (2) if the objector is found to be conscientiously opposed to participation in such noncombatant service, he shall in lieu of such induction be ordered by his local board * * * (to) such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate * * *.  If after such hearing the Department of Justice finds that his objections are not sustained, it shall recommend to the appeal board that such objections be not sustained.  The appeal board shall, in making its decision, give consideration to, but shall not be bound to follow, the recommendation of the Department of Justice together with the record on appeal from the local board.'


1
Pertinent parts of the Regulations- 32 CFR (1951 Rev.ed.) § 1626.25-read as follows:


2
'(a) If an appeal involves the question whether or not a registrant is entitled to be sustained in his claim that he is a conscientious objector, the appeal board shall take the following action:


3
* * *


4
* * *


5
'(4) If the appeal board determines that such registrant is not entitled to classification in either a class lower than Class I-O or in Class I-O, it shall transmit the entire file to the United States Attorney for the judicial district in which the office of the appeal board is located for the purpose of securing an advisory recommendation from the Department of Justice.


6
'(b) No registrant's file shall be forwarded to the United States Attorney by any appeal board and any file so forwarded shall be returned, unless in the 'Minutes of Action By Local Board and Appeal Board' on the Classification Questionnaire (SSS Form No. 100) the record shows and the letter of transmittal states that the appeal board reviewed the file and determined that the registrant should not be classified in either Class I-A-O or Class I-O under the circumstances set forth in paragraph (a)(2) or (4) of this section.


7
'(c) The Department of Justice shall thereupon make an inquiry and hold a hearing on the character and good faith of the conscientious objections of the registrants.  The registrant shall be notified of the time and place of such hearing and shall have an opportunity to be heard.  If the objections of the registrant are found to be sustained, the Department of Justice shall recommend to the appeal board (1) that if the registrant is inducted into the armed forces, he shall be assigned to noncombatant service, or (2) that if the registrant is found to be conscientiously opposed to participation in such noncombatant service, he shall in lieu of induction be ordered by his local board to perform for a period of twenty-four consecutive months civilian work contributing to the maintenance of the national health, safety or interest.  If the Department of Justice finds that the objections of the registrant are not sustained, it shall recommend to the appeal board that such objections be not sustained.


8
'(d) Upon receipt of the report of the Department of Justice, the appeal board shall determine the classification of the registrant, and in its determination it shall give consideration to, but it shall not be bound to follow, the recommendation of the Department of Justice.  * * *'


9
Before THOMAS W. SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.


10
FRANK, Circuit Judge.


11
At the hearing held by the hearing officer, he did not mention the F.B.I. investigative report; nor did he give a summary of its contents or reveal the names of the persons who supplied the data described in the report.  After defendant's indictment, before and at the trial the prosecutor refused to produce that report, on the ground that it was 'confidential.'  See U.S. ex rel. Tougy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417.5  When a prosecutor thus withholds such matter, the government must take the consequences,6 which here come to this: Not having access to the report, the trial court and this court must assume that it contained matter gravely adverse to the defendant.7  To be sure, the defendant did not make a request, pursuant to the following provision contained in the 'Instructions' issued by the Office of the Attorney General:8 'Upon request therefor by the registrant at any time after receipt by him of the notice of hearing and before the date set for the hearing, the hearing officer will advise the registrant as to the general nature and character of any evidence in his possession which is unfavorable to, and tends to defeat, the claim of the registrant, such request being granted to enable the registrant more fully to prepare to answer and refute at the hearing such unfavorable evidence.'  But even if defendant had made the request, the divulged information would not have afforded him adequate opportunity 'to prepare to answer and refute at the hearing such unfavorable evidence.'  For that information would not have disclosed the identity of the witnesses who gave such 'evidence,' and thus would not have put defendant in position to interrogate or impeach those witnesses.


12
Accordingly, we think the hearing before the hearing officer violated the statute, for the reasons admirably stated by Judge Hincks in United States v. Geyer, D.C., 108 F.Supp. 70.  Referring to § 456(j),9 which provides that on an appeal by a registrant claiming classification as a conscientious objector, the 'Department of Justice, after appropriate inquiry, shall hold a hearing' upon notice to the registrant, Judge Hincks said: 'The natural import of this provision is, I think, that the investigative report resulting from the inquiry shall be made a part of the record for consideration by all directly concerned with the classification.  Under the contemplated procedure the registrant has already had an opportunity before the draft board to put everything desired into the record.  That being so there would be no point to notify him to appear in the departmental hearing just to put in more evidence.  Thus, by elimination, the only useful purpose of notice at that stage was to give the registrant opportunity to meet the contents of the report.  And if such was the underlying purpose, the inference is required that the Act envisaged that the investigative report should be made a part of the departmental report and go forward in its entirety for the appeal board to scan and evaluate.  Furthermore, the Act (same section) provides that the board 'shall, in making its decision, give consideration to, but shall not be bound to follow, the recommendations of the Department * * *.'  This clearly imports that the board shall evaluate the worth of the recommendation which is a task impossible of fulfillment unless the board has access to the entire record on which the recommendation is based.  Congress was not using empty words when in Sec. 451 of the Act it solemnly declared 'that in a free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance with a system of selection which is fair and just, and which is consistent with the maintenance of an effective national economy.'  A system in which selections might be made in uniformed reliance upon the recommendation of an executive officer bottomed perhaps on secret police reports, would indeed make a mockery of that high declaration of policy.  Only if the Act be construed to require that the investigative reports shall become a part of the record open to the appeal board and all concerned is the 'system of selection * * * fair and just' within our Anglo-Saxon concepts of justice and due process.'10


13
It is true that in the Geyer case the Appeal Board's request for the F.B.I. report was refused by the Assistant Attorney General.  However, Judge Hincks, having referred to the fact that 'the defendant at no stage had seen the report' although the defendant had never asked for it, said that the statute must be construed to require that the investigative reports shall become part of the record open to the appeal board and all concerned, thus obviously including the defendant.


14
Because, as Judge Hincks points out, the statute calls for a hearing 'after appropriate inquiry,' we think that it was essential that the F.B.I. report, which results from that inquiry, should have been disclosed to the defendant before or at that hearing held by the hearing officer.  Since defendant was a layman not represented by a lawyer, it is of no significance that he did not ask for the report.  Nor is it significant that he did not ask the hearing officer to advise him, pursuant to the 'Instructions,' concerning 'the general nature and character of any evidence * * * unfavorable' to his claim, for, to repeat, such advice would not have put him in a position to interrogate or impeach the witnesses who gave such testimony.  We are not to be understood as deciding whether, if the statute provided that such a report should not be disclosed, it would be unconstitutional.  Cf. Imboden v. United States, 6 Cir., 194 F.2d 508, 513.


15
Even if the F.B.I. report were favorable to the defendant, it may well be that the statute required that it be disclosed to him at or before the hearing held by the hearing officer.  Cf. Griffin v. United states, 87 U.S.App.D.C. 172, 183 F.2d 990, 993, where the court said that 'the case emphasizes the necessity of disclosure by the prosecution of evidence that may reasonably be considered admissible and useful to the defense.'11  True, the hearing here was not a criminal trial.  But its effects on defendant might be fully as important.


16
We deem it appropriate to quote, as opposite here, Judge Hincks' closing remarks in Geyer's case: 'While, of course, the verdict of acquittal is a final determination of the pending charge based, as I hold, on an illegal classification, nothing in the Constitution or the Act precludes further proceedings under the Selective Service System or a successful prosecution for refusal to comply with an order for induction based upon another, and valid, order of classification if any such shall be made.'


17
Reversed.



1
 Under the Regulations, this class includes every registrant who would have been classified in Class 1-A (available for military service) but for the reason that he has been found, by reason of religious training and belief, to be conscientiously opposed to combatant training and service in the armed forces


2
 In his original brief, defendant argued that Smith had not seen the F.B.I. report.  Smith's report to the Appeal Board says, 'The investigative report shows * * *'.  The government in its brief argues that this means that Smith had before him the F.B.I. report.  Defendant in his reply brief says, 'If the report of * * * Smith meant to refer to the F.B.I. report, when it mentioned the investigative report, then appellant withdraws that point, * * *' We think it did mean to refer to the F.B.I. report


3
 It is not clear that the F.B.I. report was before the Appeal Board


4
 50 U.S.C.A. Appendix


5
 Cf. Bowman Dairy Co. v. U.S., 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879


6
 See.  U.S. v. Andolschek, 2 Cir., 142 F.2d 503, 506; U.S. v. Krulewitch, 2 Cir., 145 F.2d 76, 78-79, 156 A.L.R. 337; U.S. v. Beekman, 2 Cir., 155 F.2d 580, 584; U.S. v. Grayson, 2 Cir., 166 F.2d 863, 870


7
 Smith, the Special Assistant to the Attorney General, in his letter to the Appeal Board, stated that 'there is some indication in the (F.B.I.) report that the registrant is inclined to be lacking in ambition, however, his employment record is satisfactory.'  It may be that far more damaging statements are contained in the F.B.I. report


8
 It is entitled, 'Instructions to Registrants Whose Claims for Exemption As Conscientious Objectors Have Been Appealed.'


9
 50 U.S.C.A. Appendix


10
 In United States v. Geyer, as here, the defendant had not asked to see the F.B.I. report at or before the hearing held by the hearing officer


