'The Witness: That is right.'
At the trial counsel for defendant agreed that the sole question before the Court was the refusal to grant defendant conscientious objector status.
The issue here is a very narrow one. Regardless of any opinion the Court may have on the bona fides of defendant's claim,
the cold fact remains he did not receive a copy of the Justice Department's recommendation and obviously did not have a reasonable opportunity to file a reply thereto.
Since the trial of this case the Supreme Court has again spoken. In Simmons v. United States of America, 348 U.S. 397, 75 S. Ct. 397, 400, the Court stated, inter alia:
'Section 6(j) of the Act (50 U.S.C.A.Appendix, § 456(j)) provides that 'the Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith' of the claimed conscientious objections. In United States v. Nugent, supra, we held that this 'hearing' did not entail disclosure of the secret FBI reports. In reaching this conclusion, however, we relied on the availability to the registrant of a fair resume of these reports:
"* * * We think the Department of Justice satisfies its duties under § 6(j) when it accords a fair opportunity to the registrant to speak his piece before an impartial hearing officer; when it permits him to produce all relevant evidence in his own behalf and at the same time supplies him with a fair resume of any adverse evidence in the investigator's report.' 346 U.S. at page 6, 73 S. Ct. at page 994.
'We did not view this provision for a fair summary as a matter of grace within the Department's discretion, but rather as an essential element in the processing or conscientious objector claims.'
As to defendant's failure to request the summary, the Court said, 348 U.S at page 404, 75 S. Ct. at page 401, 'There is nothing in either the statute or the regulations authorizing such a waiver.'
In Gonzales v. United States of America, 348 U.S. 407, 75 S. Ct. 409, 412, the Court said, inter alia:
'* * * we believe it also to be implicit in the Act and Regulations -- viewed against our underlying concepts of procedural regularity and basic fair play -- that a copy of the recommendation of the Department be furnished the registrant at the time it is forwarded to the Appeal Board, and that he be afforded an opportunity to reply.'
In conclusion, the Court said:
'We hold that the overall procedures set up in the statute and regulations, designed to be 'fair and just' in their operation, 62 Stat. 605, 50 U.S.C.A.pp. § 451(c), 50 U.S.C.A.Appendix, § 451(c), require that the registrant receive a copy of the Justice Department's recommendation and be given a reasonable opportunity to file a reply thereto.'
These requirements were not met in this case. Accordingly, defendant's motion for acquittal will be granted.