GONZALES v. UNITED STATES

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Argument of Hayden C. Covington

Chief Justice Earl Warren: Number 416, Raymond Gonzales, Jr., Petitioner, versus United States.

Mr. Covington.

Mr. Hayden C. Covington: May it please you, Mr. Chief Justice, and the other gentlemen of the Court.

The writ of certiorari in this case brings here for review a decision of United States Circuit Court of Appeals for the Tenth Circuit confirming a judgment of the District Court of Colorado convicting the petitioner in this case for a violation of Universal Military Training and Service Act.

We present to the Court by the petition for substantial questions.

First is whether or not the petitioner was denied procedural due process of law by the Department of Justice making use of a memorandum of the local board that was made without any notice or knowledge to the petitioner that he had, upon the occasion of his personal appearance before the Board, exaggerated his ministerial activity when, as a matter of fact, he had discontinued full-time ministry therefore and he had no notice of this until effort was too late, namely, when the recommendation got into the Board of Appeal.

He had the opportunity to answer for the first time and then the Department of Justice had already formed this position against him.

The second question is whether or not he was denied procedural due process of law before the Appeal Board by the withholding of the report of the hearing by the hearing officer of the Department of Justice.

We have two additional questions that are procedural and if -- it would be reached if the Court does not decide the first two in our favor, namely, whether or not the District Court denied procedural due process of law and disallowing the request of the petitioner by subpoena duces tecum to command the production of the hearing officer's report which was for the purpose of establishing that he had been denied procedural due process of law before the Appeal Board in several respects and the withholding of the hearing officer's report, and then, also the quashing of the subpoena duces tecum commanding the production of the FBI reports which had been summarized by the Department of Justice and forward it to the Appeal Board.

This petitioner registered -- registered with his local board in the Southern Colorado and -- at the time so that he was the minister of Jehovah's Witnesses and the conscientious objector.

At that time, he was engaged full-time in a big sugar business working secularly.

And also, he was a full-time minister, a pioneer in the organization of Jehovah's Witnesses having been certified as such by the Watchtower Bible and Tract Society.

He showed these facts to the local board and the local board denied both the ministerial exemption and the conscientious objector classification.

The case then proceeded on appeal to the Board of Appeal where there was a hearing before appealed decision and hearing in the Department of Justice.

In the interim, he had discontinued his full-time ministry and the résumé of the Department of Justice inquire had showed that he had discontinued his ministerial activity full-time according to the report of an interview with an officer of the Watchtower Society, the governing body of Jehovah's Witnesses in Brooklyn.

The Appeal Board denied the classification of conscientious objector, and he was ordered prosecuted but because of decisions of this Court, the case in Sicurella against the United States, the first recommendation of the Department of Justice was considered to be illegal.

And then, the case was reopened and reprocessed according to local board memoranda.

Then it becomes -- the very crucial and vital question in this case arises on the second process.

He had his classification of one and then he requested a personal appearance and hearing before the Board which was granted on August the 17th, 1956.

According to the undisputed evidence, the testimony I'm talking about now, and in this connection, I'd like to call the Court's attention that the Government did not call any board member, did not call the clerk of the Board but continued itself merely with the subpoenaing of the custodian of the records of the selective service system for the entire State of Colorado, Mr. (Inaudible), the Deputy Director.

The testimony shows that Gonzales, when he was before the local board, offered to prove that he was a minister notwithstanding the fact that he had discontinued the full-time ministry, but he never got around to the point of giving any evidence, whatever, for the purposes for which he want therefore, namely, because when he appeared there, the Board told him that they had already considered this matter and have their minds made up and the case was going to the Board of Appeal.

So, he got no opportunity to talk.

Then he was -- and in fact, driven out of the Board according to his testimony which was not disputed.

And the case on that day, that very day of hearing was forwarded to the Board of Appeal and here, it's significant to note that nowhere in this draft board file is there a written notice of appeal that the Government talks about him having a right to file supplement to it setting forth arguments and facts that he felt the Board had overruled.

But on the very day, and I call your attention to a paper that's not printed but which appears in the Exhibit 1, the Government's exhibit at page 42 in longhand, at the lower right hand corner of the Exhibit 1 there is called an individual appeal record.

Now, the record in this case has printed the questionnaire which has the minutes on page 136.

But that -- those minutes are not complete and they do not show everything that happened in this case, namely, the date that this case was forwarded to the Board of Appeal, August the 17th, 1956.

It's usually the regular procedure of draft boards to allow several days for a registrant to file some sort of a written statement before the papers go out.

But since they told him that he could appeal orally, and he did so appeal when he had no opportunity to complete his testimony before them are offered when he went there to prove, there was no chance for him to file any statement on appeal and also, there was no chance for him to make any complaint about this memoranda of August the 17th of 1956 that we complain about where they take up and copy a letter that was written to the Board back in three or four years earlier when he was a full-time pioneer and make it appear that he had been given a full hearing on the ministry that day and that's set forth on page 7 in my brief, in Footnote 5.

It's identical in every respect.

And on the left column, you'll see that -- to show that they copied that old letter verbatim, would like to appear in person.

If that was a memoranda of the local board of what happened to that personal appearance, it's ridiculous to assume that while he was then presently appearing before the Board, that he would like to appear in person.

My point is that when he took this appeal in this state of affairs to the Board of Appeal, the whole file was sent to the Board of Appeal.

He had no opportunity to know that that memoranda had been put in the file.

Then, the case was referred to the Department of Justice and they conducted the FBI inquiry.

Then there was a résumé made of that FBI inquiry.

He was given a notice to appear before hearing officer, Evensen in Boulder, Colorado, I believe it was, and did appear.

And at that hearing, Evensen did not go in to this business of this exaggerated statement.

He didn't bring up anything about that at all.

He went into a lot of other matters that's not necessary to relate here on this particular question.

And after having given this man a hearing and not having brought up this business of exaggerated hours, which the man testified he never did, all he did is, apparently, took this old letter and copied it in there as a memoranda of what had occurred.

The Government argues that he read that letter to the Board.

Well, there is no testimony to support that.

They didn't bring the clerk.

They didn't bring any board member.

Justice Potter Stewart: Is he coming to the point --

Mr. Hayden C. Covington: Yes, sir.

Justice Potter Stewart: -- when -- when did the petitioner first learned of this memorandum?

Mr. Hayden C. Covington: After he had been indicted.

And he was in the office of Mr. Evensen.

And I was present interviewing him in Denver, Colorado two days before the trial in the District Court.

That's the first time he learned of it.

As a matter of fact, the recommendation of the Department of Justice does not even refer to the memorandum.

It merely said that he had exaggerated his hours whereas the first résumé, and I'd to direct your attention, the Government said that this man fooled the Board about these matters, I'd direct your attention to page 165 and 167 -- 166 and 67.

That's the résumé of the first inquiry before this case was reprocessed showing in the records that this man have discontinued the pioneer minister.

And also, his letter there showed that he was now married and was doing masonry work, all of this before the second processing.

They say that he should have notified the Board when he was before the Board on personal appearance.

His testimony is he didn't even have a chance to tell them anything about this matter.

Before they -- he left, they did ask if he had any additional evidence to offer and he brought out about his having gotten married which they'd already been notified about.

But -- anyway, he had his hearing.

The case went then to the review officer in Washington on the conscientious objector section.

And the -- that review officer then did not notify this man of this intent to rely on this memoranda or the contents of it, but made this recommendation against him adversely on this paper that he have no notice of.

He got the notice of course that they're relying on this contention after he got the -- after they had made their recommendation to the Appeal Board.

But after all, that was entirely too little and too late, as I state and show on my brief.

Now, it's my suggestion to the Court that Gonzales applies here.

This man was ruled against for all practical purposes before the Appeal Board without any notice of the position that the Department was taking until it was entirely too late.

They say, “Oh, he have the right to answer the recommendation.”

But that's entirely too little and too late.

Here's the powerful Department of Justice.

The records show 95% of all their recommendation are accepted by the Appeal Board having taken this position against him.

And it's preposterous to believe that he had a -- any sort of a chance to answer that recommendation.

And as a matter of fact, he did attempt to answer and show the truth of the matter but his recommend -- his answer was ignored.

I'm going to pass up the argument about the hearing officer report having been -- should have been included in the file.

I take the position, the outstanding regulations that were in existence when Congress passed the law on 1948 and then again in 1951, required that it'd be included because the old procedure at that time required that it'd be included.

They say it's harmless.

I say it's very important because this man took two witnesses when he went there to -- appear before Evensen.

And that -- purpose of that report was to give a record of evidence that was offered.

And consequently, it should have been included for the benefit of the Appeal Board under Section 6 (j) of the Act.

Coming now to the subpoena business, error of the District Court in quashing these subpoenas.

That hearing officer's report should have been brought to -- before the District Judge to enable me to approve that the hearing officer, at least, had included favorable evidence or had not included a record of this testimony.

At least the recommendation of the Department of Justice is not even referred in any of this testimony that this man offered through himself and two witnesses before the hearing officer.

So the fact the recommendation is silent on it, then the way to get at it was to get the subpoena to command the production of that hearing officer's report and make the comparison of the two to see if this man was denied procedural due process before the Appeal Board on -- in that respect.

Coming now to the question of the error of the Court in quashing the subpoena duces tecum commanding the production of the FBI report, the hearing officer had the original reports.

The hearing officer used the original reports.

It's true the defendant was sent a résumé along with the recommendation that went from the Appeal Board to him.

He got the résumé of the first inquiry and the second inquiry.

But I say to you, gentlemen, that when Congress passed the draft law in 1940 and reenacted it in 1948 and again in 1951, Congress intended that not only the adverse evidence be included from the FBI report but also the favorable evidence.

Congress didn't intend to have a one-sided presentation or a one-sided hearing in the Department of Justice on this conscience objector claim.

Therefore, it was wrong for the Department of Justice to make a résumé only of the unfavorable and merely refer to the favorable evidence.

And I say this, that I have the right to prove a violation of procedural due process in the Appeal Board by the withholding of favorable evidence by the Department of Justice in making this résumé of the inquiry.

And when I -- the only way you can do that is to subpoena the original report and show that there was an inadequate and an unfair résumé made, just like I argued in the Fourth Circuit about the matter.

It's just like litigating the adequacy of a book review on the District Court.

How can the District Judge determine the matter without reading the book?

But does he do it just by reading the book review?

It's as simple as that.

The law has allowed him to make these résumés.

And (Inaudible) allowed him to get by with not producing the FBI report in the administrative level.

They prosecute the man because he violates the order of an administrative agency.

He had the opportunity to prove -- should have had the opportunity in the District Court to determine whether or not that résumé was adequate.

Did it withhold favorable evidence?

The Ninth Circuit has said in quite that Congress intended that this FBI inquiry and hearing on the Department of Justice be in the favor of the registrant, namely, to turn up favorable evidence.

The very purpose of taking the appeal was to correct any errors.

The law says it's got to be fair and just.

The thing can't be fair and just unless both sides are heard.

It can't be fair and just when favorable evidence is withheld from the Appeal Board.

I say that I am not satisfied in these cases until I have the opportunity to look at the original FBI report.

A lawyer can't do his duty to a client to determine whether or not, and the Court can't do its duty in determining whether or not there has been favorable evidence withheld from the Appeal Board until a comparison has been made between the two.

Even Judge Sobeloff admitted that when he wrote the opinion in Blaylock.

I respectfully submit it.

Chief Justice Earl Warren: Mr. Friedman.

Argument of Daniel M. Friedman

Mr. Daniel M. Friedman: Mr. Chief Justice, and may it please the Court.

I would like to set in the factual posture of this case, the precise basis of the Department's decision, recommendation to the Appeal Board.

As we think that most of the procedural issues to which Mr. Covington has just adverted, in fact, do not properly presented by the factual posture of this case.

Now, the recommendation of the Department, and I want to emphasize at the outset that under the statute and the regulations, what the Department tells to the Appeal Board is only a recommendation.

The Appeal Board specifically is authorized either to follow it or to object it.

The Department's recommendation in this case is set forth at page 177 of the record.

In that recommendation, after the Chief of the Conscientious-Objector Section for the Department summarizes the report of the hearing officer, summarizes the material in the résumé.

He concludes that the hearing officer reported that the registrant gave --

Justice William O. Douglas: Where are you reading on?

Mr. Daniel M. Friedman: Page 176 and 177.

I'm first referring to page 176 which summarizes the conclusion of the hearing examiner.

And the hearing examiner had concluded that although the registrant gave every appearance of being sincere, he did not believe he was sincerely opposed to any participation in military service but only to participation in combat service.

The department recommendation said they didn't think they -- that could be sustained on this record but then, they went on, page 177 and stated as follows, “On the other hand, the registrant's claim as to the amount of his religious activities is so highly exaggerated.

If we are to believe the official records of his religious organization as reported in the résumé and recapitulated above as to cast doubt upon his veracity and consequently upon his sincerity and good faith.”

Now, that conclusion rests on a report in the registrant's draft file made by the local board just after he had appeared before the local board at his interview in 1956.

That report is set forth at page 173 of the record.

That report stated that the petitioner had told the local board at the interview that he was then devoting 100 hours a month to preaching as a pioneer and an additional 50 to 75 hours a month in other religious activities.

Now, it is not disputed that at the time this incident took place, the petitioner was only devoting six and one-half hours a month to his preaching.

Justice William O. Douglas: Was that --

Mr. Daniel M. Friedman: The --

Justice William O. Douglas: -- the information in the report that he wanted you to examine?

Mr. Daniel M. Friedman: No.

That was set forth in the first résumé, Mr. Justice Douglas.

There were two proceedings.

He went through the appeal proceedings twice.

And he, himself, conceded at his trial that at that time, he was only devoting six and a half hours a month to preaching.

The fact is that he only spent six months in the so-called “pioneer status” as devoting 100 hours a month to preaching.

After six months, he gave up his full-time ministry.

Now, the petitioner has not denied at any point in this proceeding, even in the District Court and the Court of Appeals or before this Court, that a misstatement of this character, if it had been made before the local board, warranted the denial of his claim to conscientious objector status.

In other words, he does not contest that if, at the time he claimed to be devoting 100 hours a month to religious preaching, he was only devoting six and a half hours a month, that misstatement warranted the local board and the Appeal Board in denying his claim.

Justice John M. Harlan: Did he claim he never made the statement?

Mr. Daniel M. Friedman: He claims he never made the statement, Mr. Justice.

Chief Justice Earl Warren: Was there any oral evidence that -- to the effect that he didn't make this statement?

Mr. Daniel M. Friedman: The only evidence, Mr. Justice, is in the report of the draft board but --

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: This is the item at page --

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: That is correct.

Well, this is only evidence that he made the statement in 1 -- in Record 173.

But we think there is additional evidence which supports the validity of this statement.

Chief Justice Earl Warren: Well, is that -- is -- is there any significance of the fact that that statement was identical to the statement he had made four years before in exactly the same words and figures and even punctuation?

Is there anything significant to that that -- that those two records are identical and that on the other hand, there was no oral testimony to the effect that he did actually make his second statement in precisely the same language as he had made it four years before?

Mr. Daniel M. Friedman: We don't think so, Mr. Chief Justice.

I'd have to have three answers to that.

Chief Justice Earl Warren: Yes.

Mr. Daniel M. Friedman: In the first place, the statement begins with the word “Mr. Gonzales stated”.

In other words, before the language of the previous letters included, it has the word “Mr. Gonzales stated”.

Now, we don't know what happened at the draft board but we do know that this statement was a record which the draft board was authorized to make because under the regulations, only written material maybe relied on as the basis for classification.

Now, perhaps, this was read at the draft board, perhaps, it was incorporated but we think the real answer is what is set forth by the Court of Appeals on this issue at page 190 of the record.

And they say as follows, at the top of the page, “Even if we assume that the Board copied the fourth paragraph of appellant's letter of November 22nd, it would not impeach its record if, in fact, he told the Board substantially the same thing he stated in his letter of November 22nd.”

Chief Justice Earl Warren: Yes, but was there any evidence -- was there any evidence that he did tell them that?

Mr. Daniel M. Friedman: Just the --

Chief Justice Earl Warren: All -- all we have here are the two -- the two letters so-called.

And the -- and the Court or the -- the Board there says that it make no difference if what he did actually say was the same as what he had said four years ago, but is there any -- is there any oral evidence to the effect that he did actually say these things before the Board?

Mr. Daniel M. Friedman: No.

There is no testimony he denied it.

But, Mr. Chief Justice, the trial court, who heard this testimony, concluded that, in fact, his testimony did not outweigh the official records.

Chief Justice Earl Warren: We'll recess now.

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Argument of Daniel M. Friedman

Mr. Daniel M. Friedman: Mr. Chief Justice and may it please the Court.

At his trial in this case, petitioner took the stand and denied that he had made these statements before the local board as to the amount of time devoted to his preaching.

The trial court which had the opportunity to observe misdemeanor on the stand, nevertheless concluded and this is at page 91 -- I'm sorry, 115 of the record.

Trial court said that although petitioner denied having made these statements, the Board's summary.

“Probably, fairly reflect what took place at this time.”

And similarly the Court of Appeals in passing on this contention said that the record had support for the conclusion that petitioner had been guilty of gross misrepresentation of his ministerial status of the hearing before the local board.

Chief Justice Earl Warren: (Inaudible)

Mr. Daniel M. Friedman: I think, Mr. Chief Justice, because this was the official record of the Board.

This was a record that the Board was authorized to make.

He had adequate opportunity to correct any misstatements in his file, to complain about this.

He emphasizes that he did not see this particular statement until just before his trial.

Well, eight months elapsed between the time that he appeared before the local board and that he received the copy of the Department's recommendation, which I will come to in a moment, stating that he had exaggerated the amount of time to go to the preaching.

During that time, he made no effort to check the accuracy of his draft board file.

He admitted at the trial that he had the right to examine the file.

He admitted that he had the right at the hearing before the department hearing, obviously go into this thing.

He did none of these things.

And we'd think that in the circumstances since the burden is upon -- and a registrant who claims conscientious objector status, the burden is on him to establish his good faith and sincerity.

We think that the Department in this -- the Government in this case was warranted in accepting the official report of the Board.

Chief Justice Earl Warren: (Inaudible)

Mr. Daniel M. Friedman: He --

Chief Justice Earl Warren: (Inaudible)

Mr. Daniel M. Friedman: Well, Mr. Chief Justice, at record pages 109 to 110, he personally stated that he knew he had the right to examine this.

And I would also like to point out that in this very case, first, he concedes that everything else in the statement except for this one paragraph relating to what he told the Board with respect to the number of hours is accurate, he doesn't deny that.

Secondly, although, both the regulations and the selective service classification form require registrant to affect any change -- to report to the draft board any changes that may affect his status.

He, at no time, during the three months -- three years, I'm sorry when he had seized preaching a 100 hours a month brought this to the attention of the local board.

And indeed, when he came before the local board the second time at his interview in 1956, when he was asked if he had anything else to report instead of reporting that he had ceased his pioneering activities, he merely announced that he was now married and produced a copy of his marriage certificate.

Justice Potter Stewart: What was his classification at that time?

What was he asking for?

Mr. Daniel M. Friedman: He was asking for both I-O which is conscientious objector status and also for IV-D, which is the ministerial classification.

He had been classified I-A by the local board.

Justice Potter Stewart: Because this -- the -- the amount of time he devoted to preaching wouldn't have any bearing at all on whether or not he should be classified I-O, would it?

Mr. Daniel M. Friedman: No, the amount of time he wouldn't, but there was -- since he was at this point still claiming his ministerial classification --

Justice Potter Stewart: It wouldn't have --

Justice Potter Stewart: -- was a valid reason why he would have told the local board that he was still -- presumably still devoting 100 hours to preaching.

Now, I'd like to also --

Chief Justice Earl Warren: Mr. Friedman (Inaudible)

Mr. Daniel M. Friedman: As a minister?

Chief Justice Earl Warren: Yes.

Mr. Daniel M. Friedman: No, I wouldn't think the fact that he was without a church, but I think if he had ceased performing his ministerial functions --

Chief Justice Earl Warren: Well, if that doesn't seems to (Inaudible) but he just admittedly simply that the -- the amount of time he was given (Inaudible)

Mr. Daniel M. Friedman: Well --

Chief Justice Earl Warren: -- because that changes (Inaudible)

Mr. Daniel M. Friedman: I think in the context of this organization, it does, because I think a distinction has been drawn between the man who is just doing some occasional work and the man who is claiming the status of a minister.

Mr. Chief Justice, since all the members of this organization claimed to be ministers and since it's clear that they are not all entitled to a draft, deferment because of their ministerial status, the dividing line of the selective service has drawn as between the pioneer status, because the pioneer was the man who is in effect acting as the pastor.

Now, if he would temporarily without a pastor, of course this wouldn't make any difference.

But if -- if I might suggest as an analogy, a -- a minister who quits the ministerial -- his ministerial activities and decides to go into the business of publishing religious works, I think at that point, he might say he was no longer a minister.

Chief Justice Earl Warren: (Inaudible)

Mr. Daniel M. Friedman: If Mr. Justice Clark -- you asked the question as to where in the record the statement of the Court of Appeals?

That's at 191 and 193.

The Court of Appeals makes that statement.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: Now, I don't think so, Mr. Justice.

I think his claim is not that these papers were necessary to establish whether he had or had not made a misstatement but that these papers were necessary in order him to show additional affirmative evidence to support his case.

That is evidence of his sincerity.

In this case, there is nothing that was dealt with at the hearing before the Department of Justice hearing officer relating to the amount of time he devoted to preaching.

And also, with respect to the FBI reports which are contained in the -- summarized in the resume.

There too, the only thing relied on in the resume as the basis for the Department's recommendation was the fact that he was then only devoting six and half hours to preach in this.

The Department has not -- has not here questioned all the additional material relating to his good faith.

The resume is set forth to page 178 to 180 of the record.

And the -- only one incident in the resume that it's unfavorable and that related to a fact, the petitioner had once been picked up by the police or it was claimed that he had attempted to pick some women up on a street late at night.

He denied that.

The resume shows his denial and the hearing officer has set forth in the Department's recommendation, indicated that we were not relying on that fact.

So the whole issue in this case basically, is whether he did make these misstatements before the local board.

His claims as to his demand for the hearing officer's report as for his claim that he is entitled to see the FBI reports, he does not, as I understand it, claim that these reports would tend to support his argument that he had not made those misrepresentations, rather is that this was necessarily to see whether the resume fully set forth all the favorable evidence to his case.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: Pardon me, sir?

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: That issue, Mr. Justice was not raised at the hearing.

That issue was only raised for the first time in the Department's recommendations.

It's not disputed that at the hearing, there was no discussion between the hearing officer and petitioner with respect to how much time he was devoting to his preaching.

And while he -- he makes a number of charges and says that he would prove this and show that the hearing was unfair, we think that in the narrow factual posture of this case, those issues aren't properly presented to this Court.

Now, in the case of the resume, he does not now argue that the -- he -- well, he says he doesn't know whether the resume fairly summarized the unfavorable material.

We think the answer to that is that he has not prejudiced as long as there is nothing which forms the basis for the Department's recommendation that is not set forth in the resume.

Now, the reason the resume set forth nothing with respect to the claim -- claim of exaggeration is because at that stage of the case, when you merely had the summary of the favorable and unfavorable evidence in the FBI report, this issue hasn't been brought into the case yet.

I want to emphasize that since this -- this Court's decision in the Nugent case, the Department has filed the practice of giving registrants a resume not only of the unfavorable evidence but also of the favorable evidence and that is set forth in the resume on this -- in this case at page 178.

There are set forth three rather tightly neat paragraphs indicating that generally, this man is regarded as a sincere person.

The unfavorable evidence of necessity which is the incident with respect to his being picked up by the police, of necessity, this is some -- set forth in somewhat greater detail because the whole purpose of the resume as Nugent indicated is to give him an opportunity to meet the unfavorable evidence.

Now, the petitioner was -- in accordance with this Court's decision in the Gonzales case, given a copy of the Department's recommendation to the appeal board before the appeal board considerer the case and he in turn was given 30 days within which to answer that recommendation.

He answered that recommendation as set forth in a letter shown at page 182 of the record.

And in that recommendation, he denied having made these statements.

The appeal board however, despite his denial, classified him in I-A.

Now, this Court has repeatedly emphasized that when it comes to judicial review of selective service classifications, Congress has provided for only varying hour review.

The test is, is there any faith that in fact for what the local or the appeal board has done.

The District Court which heard petitioner and the Court of Appeals which studied the record, concluded that it could not say on this record that there was no basis in fact for the denial of his conscientious objector claim.

In other words, the question we think is not whether this Court, if it were deciding de novo, the questions whether petitioner had exaggerated his claim would or would not reach the same result?

The question we think is whether you can -- can fairly say that there was no basis for the determination based on the department's recommendation that this man's report as shown in the official record of the Draft Board had grossly exaggerated the amount of time he devoted to preaching and that as a result of this exaggeration, this raised a sufficient question as to his trustworthiness and sincerity to warrant denial of his claim for conscientious objector status.

Chief Justice Earl Warren: May I ask the (Inaudible) question.

Assume -- assuming that that basis of an application for an exemption as minister and (Inaudible) well, in denying (Inaudible) status as they did here, (Inaudible)

Mr. Daniel M. Friedman: Well, Mr. Chief Justice, let me first say that his claim was -- to conscientious objector status was not denied because his claim to ministerial status was not established but rather because he had been guilty as it was -- this concluded of making a misstatement, making a full statement before the Board.

Now, all that I can --

Chief Justice Earl Warren: Well, he testified that he did not make a statement that there wasn't a single deferent witness (Inaudible) that was identical in every respect of what he had made four years (Inaudible) of were before us to show that he is sincere despite of what they -- they said in this proceeding that -- and refer you the six hours and a half.

If it (Inaudible) about that why you made this -- this summary and there would be 36 hours and that would still makes (Inaudible)

Mr. Daniel M. Friedman: Well --

Chief Justice Earl Warren: -- it's against him.

He did work at the church and there is (Inaudible)

Mr. Daniel M. Friedman: Well, I think, Mr. Chief Justice, the testimony against him is not oral testimony but the testimony of this report.

Now, I'd like to answer again the --

Chief Justice Earl Warren: The report -- (Inaudible)

Mr. Daniel M. Friedman: Well, the report, Mr. Chief Justice, although it is on the language of his --

Chief Justice Earl Warren: It makes the certain reports that it's been relevant, (Inaudible)

Mr. Daniel M. Friedman: Certainly -- of course, Mr. Chief Justice, but we think that with this report in his status and with some other evidence that I've been indicated such as the fact that he failed to advice the draft board of his change of status.

Well this thing in the report, it seems to me the trial court was warranted in not accepting himself serving denial that he made the statement.

That -- that is our basic position in this case.

Chief Justice Earl Warren: (Inaudible)

Mr. Daniel M. Friedman: It was -- it was (Inaudible).

We think the burden was on him if in fact he wished to disprove this report of the draft board, made in the course of its official business.

The burden was on him to call the members of the draft board.

He could have called them.

He could have at any time when he examined his file, at least could have seen the statement in and says, “I never made that statement.”

He didn't do that.

He waited until eight months thereafter, and then for the first time denied it.

And the trial court had an opportunity to study his credibility.

The trial court examined him and concluded that under the limited judicial review.

In other words, I think if this Court reverses in this case, it will have to say that the Government was unwarranted in accepting this official report because of his denial.

Justice Hugo L. Black: May I ask you a question please.

(Inaudible)

Mr. Daniel M. Friedman: I'm sorry, Mr. Justice.

Justice Hugo L. Black: May I suggest -- as I understand you to say even though (Inaudible)

Mr. Daniel M. Friedman: Oh -- oh no, Mr. Justice.

I'm sorry.

He has been held not to be a conscientious objector.

In other words, the misstatement -- but he was found who have made before the local draft board, raised a sufficient doubt as to his sincerity to make it appear that he was not a conscientious objector.

Justice Hugo L. Black: As he read to you, I thought you would (Inaudible)

Mr. Daniel M. Friedman: The -- the --

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: No, Mr. Justice.

What the Chief Justice read from was the resume of the FBI reports which are the statements, summarized the statements of his friends, his employers and his religious associates that he was sincere.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: It's contradict --

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: That's correct, Mr. Justice and I would --

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: No, because -- but this Court has indicated in the Witmer case which we think is controlling here that when you're dealing with conscientious objection unlike the ministerial exemption which turns on objective fact, that the facts in conscientious objection cases are significant only insofar as they relate to the ultimate question which is the registrant's sincerity.

Now, we have here a case where his employers, friends, religious associates testified, stated that he was sincere.

We have on the other hand a report, this official report of the draft board which indicated he was guilty of a gross misstatement.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: And I'd like to refer it in the Court --

Justice John M. Harlan: One thing I'd like to ask you.

What -- what were the circumstances under which he wrote the 1952 letter?

I haven't got that script.

Mr. Daniel M. Friedman: Oh, in the -- the 1952 letter, what happened was he originally filed an application.

He was originally classified I-A.

He then filed his special form which is required of -- to be filed by applicants for conscientious objectors.

That is set forth at page 151.

Now, after he filed that and attached to that some statements, the local board again classified him in I-A and it was after that that he wrote this 1952 letter in which he stated he was devoting a 100 hours to preaching.

After, as a result of that letter, he was then classified I-O, and then was subsequently again classified I-A.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: No, it's conceded.

As of 1952, he was devoted.

Also conceded that at the time he appeared before the local board, he was only devoting six and half hours to preaching.

Chief Justice Earl Warren: Is there a (Inaudible) what would be the -- would be the basis for this matter of 1956 which is identical in every respect (Inaudible)

Mr. Daniel M. Friedman: We don't -- we don't know but we --

Chief Justice Earl Warren: (Inaudible)

Mr. Daniel M. Friedman: No.

The 1956 letter is not a letter.

The 1956 statement was made by the clerk of the draft board.

And the 19 -- what the clerk did is obviously, he's copied what was set forth in the 1952 letter, but processed it with the words (Inaudible) Mr. Gonzales' stated.

There -- there is not a -- and I want to make it clear, Mr. Chief Justice, they are not two letters.

There's the --

Chief Justice Earl Warren: (Inaudible) and the -- and the clerk -- and the clerk say -- clerk of the Board says that in 1956, he orally stated in exact words (Inaudible) exactly what to say the representation that he made in 1952.

Mr. Daniel M. Friedman: Well, I suggest --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Daniel M. Friedman: And now, I suggest that perhaps he read the letter, perhaps he was merely asked --

Chief Justice Earl Warren: Who read the letter?

Mr. Daniel M. Friedman: Mr. Gonzales.

We don't know what happened.

Chief Justice Earl Warren: But why did you do (Inaudible)

Mr. Daniel M. Friedman: Well, because we --

Chief Justice Earl Warren: (Inaudible) why would somebody testify to it.

Mr. Daniel M. Friedman: I think because, Mr. Chief Justice, I can only repeat that we had this official record and the burden was on him to establish the call the people in connection with the draft board.

It may have just been summary.

This may have been the substance, the -- perhaps he summarized his position in the clerk when the clerk was obliged to prepare the report of his appearance looked and saw this old letter and so that's about what he said and copied it down.

Chief Justice Earl Warren: So, he copied the letter of 1952?

Mr. Daniel M. Friedman: Presumably.

Justice Potter Stewart: Mr. Friedman.

Chief Justice Earl Warren: That was what you said for that.

Justice Potter Stewart: Excuse me.

Mr. Daniel M. Friedman: No, Mr. Justice.

I have to if I may answer that specifically.

They put him in jail because they found that the 1956 statement which involve a copying of the 1952 letter in fact was what he said.

That the copy of the 1952 letter reflected accurately as the Court below said, what he told the Board and what he told the Board was a misstatement.

Justice Potter Stewart: Mr. Friedman, on page -- this letter on page 182 of the record dated April -- April 23, 1957 which the petitioner wrote to the appeal board --

Mr. Daniel M. Friedman: Yes.

Justice Potter Stewart: Where he did raise this precise issue, didn't he?

Mr. Daniel M. Friedman: Yes.

Justice Potter Stewart: Where does this fit in the chronology of this?

Mr. Daniel M. Friedman: After the Department of Justice held a hearing at which he was given the resume, the matter was then referred to the Department to prepare its recommendation to the appeal board.

And a recommendation was prepared and as a result of this to the Court's decision in the Gonzales case a copy of the Department's recommendation was given to the petitioner and he was given 30 days within which to reply and he makes his reply to the local board, and the letter at page 182 is the reply which he made to the Appeal -- I'm sorry to the Appeal Board.

And then, on the basis of this letter, the Department's recommendation and the selective service file, not the FBI reports, the local Board receives neither the FBI reports nor the hearing office of report on the basis of those documents, the appeal Board classified him I-A.

Justice Potter Stewart: But this letter, appearing on page 182 was sent to the appeal board after he had had a copy of the Department of Justice's recommendation and before the appeal board had made its ruling.

Mr. Daniel M. Friedman: That is correct.

It so states in the 4th and 5th lines of that letter.

Justice William J. Brennan: And is that --

Justice Potter Stewart: Excuse me.

Excuse me.

Justice William J. Brennan: Is that recommendation the one at -- at page 177?

Mr. Daniel M. Friedman: Yes, 174 to 177.

Justice William J. Brennan: Yes.

Mr. Daniel M. Friedman: Yes.

Justice William J. Brennan: But the crucial part of that is the last paragraph, isn't it?

Mr. Daniel M. Friedman: Yes, the one paragraph beginning on the other hand.

Justice Potter Stewart: The reason I asked my question was that I understood from Mr. Covington that the -- that the first that the petitioner actually learned about this report of the local board of the summarizing the statement to the effect that he was still -- said, he was working --

Mr. Daniel M. Friedman: What --

Justice Potter Stewart: -- 100 hours as a mystery -- oh as a minister that the first, the petitioner learned about that was two or three days before the trial of this criminal case.

(Voice Overlap) --

Mr. Daniel M. Friedman: That that is -- that is correct, Mr. Justice.

The Department's recommendation does not refer specifically to the statement in the local board.

It is set forth at page 175 of the record in the Department's recommendation which is -- makes the affirmative statement that on August 17th, 1956 when he personally appeared before his local board registrant (Inaudible) that he was then devoting an average of 100 hours a month.

That -- that has been -- and of course, at this point -- at this point, when the department made the recommendation, had no be -- basis at all to know that petitioner would subsequently challenge the correctness of that statement of the local board.

Justice Potter Stewart: And is it your further point that all this time, the -- the local board's files on this petitioner were available to him.

Mr. Daniel M. Friedman: Yes, that's specifically provided in the regular --

Justice Potter Stewart: They're -- they're not sent to the Justice Department or to the appeal board?

Mr. Daniel M. Friedman: Well, they -- they are sent but at -- at all stages through the proceeding, the registrant has the opportunity.

The file is sent to the Department of Justice.

It's first sent to the hearing office and he can review his file and discuss it with the hearing officer, it's then sent to the appeal board.

But he had opportunity throughout these proceedings to check this file and make sure that the statement is accurate.

And of course, finally, he --

Justice Felix Frankfurter: He said he knew also and you contend this way.

Mr. Daniel M. Friedman: He knew that he had the opportunity to examine this file.

Yes, that is set forth at pages 109 and 110 of the record.

That's his trial testimony.

So, we submit that the judgment should be affirmed.

Argument of Hayden C. Covington

Mr. Hayden C. Covington: May it please the Court.

I'd like to comment on the answer of counsel to Mr. Justice Brennan's question.

As a matter of fact, this entire draft board file was sent as I told the Court in my opening argument, within three hours after this hearing was held because it was mailed on the very day that the hearing was held on August 17th, this paper number 42 shows it was mailed on that day and the record shows the hearing was held at 1:30 in the afternoon.

By -- by the time business closed on that day, this was on the mails.

And after that, he had no opportunity to see that file or inspect it and that's what I tried to bring out at the trial at -- at the hearing officer's hearing, which was the only opportunity that he ever had to look at the file, the hearing officer did not notify him, or give him any clue to suspect that the local Board had mailed such -- made -- made such a memoranda.

And the file was not shown to him by the hearing officer and I went into this matter, tried to go into it at the trial and that was one of the reasons that I subpoenaed the hearing officer's report of what took place at the hearing because I thought the official report would be the best record of what took place at the hearing.

And I wanted to prove and attempted to do it in any every human way that a lawyer could do it, that this hearing officer did not bring to him this business about these memoranda that had been filed with the local board.

The only time that he ever learned of this alleged exaggeration is when this recommendation of the Department of Justice was sent to him by the appeal board which as I say, too little and too late.

And even it, in the recommendation, does not even give him a clue that there was a memoranda made by the local board on this point.

That's the situation.

It's pure and simple.

From the time of this hearing, they were in such a big hurry to get this case under the local board's hand that they couldn't wait five days for him to have the usual opportunity to make an inspection of the file and see whether the Board had prepared something false against him which they had done.

And as I say, he didn't learn it until the day before we went to trial in Denver.

So the file was not available at anytime until we got a photostatic copy of the file following the indictment.

And then, it was entirely too late to do anything except to try to make the defense that we did attempt to make in the District Court.

He told the Court that the only question involved in this cases is what the Court said in the Estep case about their being no basis in fact, but Justice Douglas went on to say in there, also that if there had been a violation of pursuit in due process, then even though if there was a basis in fact for the granting of the -- no,-- I mean no basis in fact for the giving of the classification procedural due process of law would invalidate it just like the a man maybe guilty of murder, but he has denied apparent fould.

That he is entitled to a reversal, so it is in the conscientious objector situation and the administrative.

And this Court held in Sicurella, and Simmons and Gonzales when the Department of Justice had made these violations.

Procedurally, that there is an invalidation of the draft board classification and that's all we're trying to prove here or attempt to show here.

That this whole set up which may or may not have been deliberate on the part of the clerk to the Board but anyhow, it's a -- it's a chain of the events that resulted in this predicament that this man was thrown into and against which he could not defend until he got in the District Court which was entirely too late.

Now, stating that the -- the notification as I said it out -- at the outset in the opening argument given to him by the appeal board after they had received the recommendation.

I say that's entirely too late.

This thing had been frozen against him in the Department of Justice and nobody at anytime notified him that this memoranda was in the file.

Even when the case was before the appeal board, he didn't have a chance to tell that appeal board, “That local board has lied to you gentleman.”

They just merely used the general allegation.

He exaggerated his hours.

There was no notice there that there was a false memoranda in that draft board file.

In DeGraw against Toon the Second Circuit said and this Court also held in Gonzales when the thing is he has gone to the appeal board and when this happens like this behind the man's back, he is entitled to make his defense.

It's a denial of due process under any theory of -- of the Constitution.

Now, they state that the appeal board decision was based entirely upon this last paragraph in the recommendation.

I say that the only way that you can reach that conclusion is to find some memoranda in the file made by the appeal board that that was the basis for it.

We've shown a violation of procedural due process here.

We say since the local -- the Appeal Board made no memoranda, we must speculate all of us as to what was the real basis for this decision.

It could have been maybe he didn't have enough proof, maybe he didn't make a prima facie case.

It could have been anything.

So why speculate about it, we can't do it and then paid them on down on the Third Circuit and the Tenth Circuit in the (Inaudible) case.

I said you can't speculate when the appeal board has failed to make a memoranda.

Those pieces are cited in the brief that I wrote.

Berman against Craig for the Third Circuit is the decision that I didn't cite in my brief, but they hold that this registrants are not to be treated as though, they were draft -- I mean litigants represented by counsel.

And the Seventh Circuit in the Green case held the same thing that a man is not to be treated as though he is required to dot every “I” and cross every “T”.

And they thought they want to do, they want to get a conviction on speculation and then when you get into the Appeal Court, they come in with all sorts of speculation and -- and start treating these registrants as though they are litigants represented by counsel which is very unfair.

The Government was caught in a situation somewhat like this and the -- and a case that I had out in the Sixth Circuit about 10 or 12 years ago, and -- and that is in the Niznik case.

Now, we would have welcomed to litigate this matter with the Board members present and the clerk of local board being present.

It wasn't our responsibility to subpoena these people.

We've developed our defense, but the only witness we had, which was the defendant.

And there -- under no theory of the law especially when they haven't explained who made that memoranda dated on August the 17th, which contains in -- in the exact copy of that letter written four years ago, his status was to be determined finally as the status at the time of the final classification.

And as the Seventh Circuit held in that case I had back in 1943 that (Inaudible) they said that a man has to be judged according to his status as of the date of the final classification.

And the fact that there had been this change from 1952 to 1957 gave that local board no right to reach back there and put back 52 statuses in there as though he had set it as a fact.

He denied saying it.

They heard this testimony at the trial, the District Judge could have held the Court at -- in half a day until he got on the phone and brought somebody.

In all of these cases, they usually bring the clerk as a prosecuting witness.

But in this case for some reason, they saw a reason not to bring the clerk.

Why didn't they bring the clerk?

Justice John M. Harlan: May I ask you a question?

Am I right in thinking that no court except one District Court so far has ordered a hearing officer's report to be divulged.

Am I right in that?

Mr. Hayden C. Covington: Well, Your Honor, the -- there is another court, of -- the Judge -- Judge Kauffman.

Justice John M. Harlan: Dawson, wasn't it?

Mr. Hayden C. Covington: Well, that was the FBI, Your Honor.

Justice John M. Harlan: Oh, that was the FBI.

Mr. Hayden C. Covington: Yes.

Judge Kauffman in the Erickson case denied the pretrial production, but after trial by subpoena, allowed the hearing officers' minutes, that is stenographic report of the hearing to be produced and at that trial, you read his opinion on the Erickson case, he refers to that stenographic report of the hearing.

Now --

Justice John M. Harlan: I want to ask you the next question.

Mr. Hayden C. Covington: Well, I hope -- I'd like to go on to say there is another District Judge --

Justice John M. Harlan: Alright.

Mr. Hayden C. Covington: -- over in this Eastern District of New York, made the same ruling and I cite that case in my brief.

Justice John M. Harlan: What are those two cases?

Mr. Hayden C. Covington: Well, it's United States against Erickson, and my memory is eluding me, but if you will permit me, I'll give the name of the case with the clerk before I leave the courthouse.

Justice John M. Harlan: And now, other question I wanted to ask you is this.

Is the rule that you're contending --

Mr. Hayden C. Covington: Wieder -- excuse me, U.S.against Wieder, W-I-E-D-E-R.

I think it's cited in my brief.

Justice John M. Harlan: Is the rule that you're contending for as far as the hearing officer's report is concerned, is that one that you think should be applied generally across the Board or are you simply asking in the light of a particular --

Mr. Hayden C. Covington: Well, if the circumstances here --

Justice John M. Harlan: (Voice Overlap)

Mr. Hayden C. Covington: -- develop that there is some controversy and here where there was a contest, the hearing officer's memory was silent on what took place at this hearing.

I wanted to go into it and he first, before the noon recess, he said he couldn't remember.

And after the noon recess, why he wasn't too sure about it.

So that's why I wanted the hearing officer's report to find out what had happened at the hearing, so I think it should've been allowed by the District Judge.

Where there is a question of facts to what took place at the hearing and especially when you bring two witnessed and you're contending if they didn't make a fair report of what the witnesses said to the appeal board and the hearing officer's report is the only record to prove that, the hearing officer's reports should have been looked at by the District Judge and by me.And I object to the do the in camera sealing it up as the offer.

Justice Potter Stewart: Who called the hearing officer as a witness?

Mr. Hayden C. Covington: Well, I did, Your Honor.

But after all, he was -- I say an adverse witness.

He was certainly a government employee and I took the position, I wasn't bound by his testimony, but he didn't say anything that hurt -- hurt me anyhow.

So I -- I subpoenaed him because it was the only way that we could get a copy of the hearing officer's report.

The original was in Washington and he was in Colorado, so we got and subpoenaed to just take him out to command him to produce it, that's all.

Now on the FBI question, this is a very -- I want to come back to what happened in the Niznik case.

I caught the Government in situation like this where they didn't bring there witness in the trial court and I asked for a judgment of acquittal in the Sixth Circuit in the Niznik case, a 173 F.2d.328 not withstanding that the evidence was undisputed, the defendant's testimony on the one hand and the draft board on the other, they said, “Well, we're -- will send this case back for a new trial.

We'll remand it so the board members can come in and let them tell the District Court what happened.”

And I won the case when I took it up on the second appeal a 184 F.2d 972.

Justice Hugo L. Black: (Inaudible)

Mr. Hayden C. Covington: 17 -- no, it isn't, Your Honor.

This came up just since the argument.

173 F.2d 328, Judge McAllister wrote the opinion, and 184 F.2d 972 is after the second trial.

But if the Government -- I don't want to take advantage of the Government.

We did everything we did.

If the Court thinks that the Government can produce witnesses to contradict what the defendant said, let them try it and we'll go to trial again on the matter.

But I think on the record, when they have the opportunity to do it in subpoena power and didn't do it, they ought to be treated like any litigant, the acquittal, a lot of them sustained.

But if we go back to trial in this matter, I do beg the Court as I have in many petitions to pass on this subpoena the FBI point.

This thing has plagued us.

This has been dangled before us without any relief.

And I say that in justice, if due process allows an inquiry into the fairness of a resume, the only way you can decide whether it's fair is to compare the resume with the original FBI reports.

And I had been after this time and time again.

I brought 10 cases up here and now, finally, this one is in here.

I wanted to get the bull's eye in the case in there because that was such an outrageous case also from Denver.

Justice John M. Harlan: So we'd have to overrule Nugent to meet your --

Mr. Hayden C. Covington: No sir.

Not --not in the least.

Nugent did not pass on this subpoena question.

That's where Judge Sobeloff made the mistake.

And when I was down there in the (Inaudible) case, I argued that, they were wrong in misapprehending Nugent.

Nugent didn't pass on the subpoena.

It only dealt with the matter in the administrative level.

And for that matter, I say that Nugent, if it is meant to say that you have only a resume of the unfair evidence and omit the responsibility to make the summary of the fair evidence -- I mean the favorable evidence, it misconceives the intent of Congress.

I say the reason the Court spoke only of unfair evidence is because -- unfavorable evidence is because that was the only question we argued and considered when we are here in the Nugent case in the 1950.

And naturally, the Court did not have in its view the question of favorable evidence, but certainly, Congress intended that the favorable evidence be provided.

Certainly, Congress didn't intend for some one-sided investigation and hearing to be conducted.

It's outrageous since it is not an adversary proceedings and the intent of the investigation is to turn up favorable evidence as well as unfavorable.

And we keep hammering at this thing and men are going to prison and a certiorari is such an uncertain thing to get in here, I know that the Court can deal only with the important questions.

You don't sit here as a court of error, but after this thing has been recurring so many times and would still get this prosecutions coming on, the question is dangling.

There is an old way that the lawyer can do, except keep raising it and hammering away at it.

If the Court finally says that I'm wrong, I'll take it like I took it in the Nugent case.

Now, that's -- I'm not criticizing the Court, I'm just merely explaining to the Court a situation of great serious importance that we've got in these cases.

That's all.

And until this Court resolves the question, we always run across some Judge like Judge Dawson in Seventh District to refuse to follow the Court of Appeals' decision.

He flat-footedly refused to follow all of the Court of Appeals that have ruled against him in this matter.

Now, I think when Judge Dawson, a man of his reputation and integrity refuses to follow the Courts of Appeal, there's something wrong somewhere, respectfully submitted.