Reargued November 24, 1970.
Seitz, Van Dusen and Adams, Circuit Judges. Hastie, Chief Judge, and Freedman, Seitz, Van Dusen, Aldisert, Adams, Gibbons, and Rosenn, Circuit Judges. Van Dusen, Circuit Judge (dissenting). Aldisert, Circuit Judge (dissenting).
This appeal is from a judgment and commitment entered on a finding of guilty following a trial to the court on an indictment charging a knowing refusal by the defendant to submit to induction into the Armed Forces in accordance with a Local Board order, in violation of 50 U.S.C. App. §§ 454 and 460. United States v. Brown, 300 F. Supp. 627 (E.D.Pa.1969).
In June, 1964 appellant applied to his local board for reclassification as a conscientious objector. Thereafter during the same month he was baptized and became a member of the Jehovah's Witnesses. On July 21, 1964 appellant's local board retained him in class I-A. Appellant appeared before the local board on October 5, 1964, pressing his conscientious objector claim and for the first time claiming a ministerial exemption. In connection with this latter claim, the minutes taken at his personal appearance reveal that appellant was directed to obtain a letter from Watchtower headquarters and send it to the board. The board voted to retain appellant in class I-A on the same day as his hearing. He never submitted the requested letter.
Following his unsuccessful efforts at the local board level, appellant appealed on November 20, 1964. After the appeal board tentatively determined that appellant was not entitled to conscientious objector status, it referred his file to the Department of Justice for investigation of the conscientious objector claim pursuant to regulations then in effect. 32 C.F.R. § 1626.25.
Some sixteen months later, on March 26, 1966, appellant appeared before a Special Hearing Officer of the Department of Justice for a hearing on his conscientious objector claim. The Justice Department report relates that appellant claimed "that at the time of the hearing, he was devoting full time to his Jehovah's Witnesses ministry as a 'pioneer.'"*fn1 This assertion, which appellant may have believed supported his conscientious objector claim as well as his claim for a ministerial exemption, was in contrast to his concession to the local board in June 1964 that he had not achieved pioneer status. Indeed, there is no evidence that appellant ever asserted pioneer status before the local board.
In addition appellant submitted four letters from co-religionists to the hearing officer. Among those letters was one from the Overseer of a Philadelphia congregation of Jehovah's Witnesses dated March 22, 1966. The letter in part stated: "Mr. Brown has recently begun to serve as a full-time minister; that is, he will be devoting at least 100 hours per month to actual preaching, not counting time spent in preparing for and attending meetings, and such incidentals as travel time to and from ministerial territory, etc." The other three letters from co-religionists as well as his own letter further tended to substantiate appellant's claim to full-time ministerial status within the Jehovah's Witnesses sect. These documents were attached as exhibits to the Justice Department's negative report on appellant's conscientious objector claim which was presented to the appeal board on September 22, 1966. Appellant was sent a copy of the report and was given an opportunity to respond to it.
In his response appellant briefly attempted to rebut the Justice Department recommendation on his conscientious objector claim. However, he addressed himself primarily to pressing his ministerial exemption claim. He submitted several statements asserting his full-time ministerial status and detailing his activities and responsibilities. He also requested an opportunity to present additional substantiation of his full-time ministerial status. The appeal board reviewed all these materials and rejected both the conscientious objector and ministerial exemption claims. Appellant was subsequently convicted of a refusal to submit to induction.
Initially we are faced with the question whether the appeal board had authority to review materials, not before the local board, which were offered both in support of a ministerial exemption claim and a conscientious objector claim to the Justice Department Hearing Officer and to the appeal board. It is clear that there could be no review of such materials today.*fn2 At the time appellant's case was before the appeal board, however, the regulations provided for review of conscientious objector claims by the Department of Justice. 32 C.F.R. § 1626.25. The appeal board was at that time empowered to consider both the Department's report on the registrant's conscientious objector claim and the registrant's reply to that report. 32 C.F.R. § 1626.24. We are convinced that these regulations were not intended to allow new information, not related to the conscientious objector claim, to be considered in the first instance by the appeal board simply because it was included in the Department's report or the registrant's reply. Such information must be submitted to the local board for its initial consideration. 32 C.F.R. § 1625.1(b). Appellant, however, submitted evidence at the appeal level tending to substantiate his claim that he had achieved full-time ministerial status within his religion some time after the local board refused to reclassify him. Under the circumstances of this case, we believe that the appeal board should have recognized this procedural irregularity and referred such information to the local board for treatment as a request for a reopening of appellant's classification. We think such action was implicitly dictated by selective service regulations, which provide that an appeal board must, in reviewing classifications,
"carefully check each file to determine whether all steps required by the regulations have been taken, whether the record is complete, and whether the information in the file is sufficient to enable it to determine the registrant's classification. If any steps have been omitted by the local board, if the record is incomplete, or if the information is not sufficient to enable the appeal board to determine the classification of the registrant, the appeal board shall return the file to the local board with a request for additional information or action." 32 C.F.R. § 1626.23 (emphasis added).
Since we are convinced that appellant could have made out a prima facie case for the ministerial exemption based upon his newly acquired pioneer status, we conclude that he could have compelled a reopening of his classification and was therefore substantially prejudiced by the appeal board's failure to comply with 32 C.F.R. § 1626.23.
Moreover, we do not believe that appellant was required to prove a sufficient case for IV-D classification during his criminal prosecution. The determination whether appellant was entitled to a ministerial exemption was to be made initially by the Selective Service System acting in compliance with ...