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United States v. Borisuk.

decided: July 14, 1953.


Author: Mclaughlin

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This appeal is from defendant's conviction under the 1948 Selective Service statute for failure to submit to induction.*fn1

Appellant registered for selective service on February 16, 1949. On March 30, 1951, he filed his completed conscientious objector form (S.S.S. Form 150) with his local board. At that time he was in his twenty-first year. He had finished grammar school, junior high, regional high school and was in his third year at Rutgers University. He was listed at the latter institution as taking a commercial course, though he seems to have been studying agriculture. In S.S.S. Form 150 he claimed exemption from combatant and non-combatant training and service by reason of his religious training and belief. Asked to describe the nature of his belief, he said, "The Bible teaches to 'Render unto Caesar what is Caesar's and unto God what is God's.' I believe that when the will of man and God separate, it is my duty to follow God." Asked to give the name and address of the individual upon whom he relied most for religious guidance, he named his parents. Asked under what circumstances, if any, he believed in the use of force he replied, "If by force you mean killing, I do not believe it is the authority of any man to take the life of another. I do believe that force (not killing) should be used in the rearing of children." Asked to describe the actions and behavior in his life which in his opinion most conspicuously demonstrate the consistency and depth of his religious convictions his answer was, "I do not know how to answer this question." Asked if he had ever given public expression, written or oral, to the views expressed by him in the form as the basis for his claim for exemption his answer was "No." In answer to whether he had ever been a member of a military organization and, if so, why he had become a member he said, "R.O.T.C. at Rutgers. It was given to me as a required course but after giving it some serious thought I dropped it." He said that he was a Baptist and that "I do not believe the Baptist Church makes any official statements concerning participation in war." On April 5, 1951, he was classified as I-A. Under date of April 7, 1951, he wrote his local board as follows:

"I received my IA classification today and was quite disappointed about not getting any consideration on my form. I should like to appeal my case further and am asking you what procedure I should follow. If you would like to see me personally, would you please let me know when it would be convenient. I am at school, so would you please direct your communications to my school address."

The board's docket entry of April 10, 1951, showing receipt of this letter reads: "Letter from registrant asking for appeal of his I-A classification and requesting advice as to procedure to follow." The next docket entry, that of April 13, 1951, reads, "Registrant's letter answered with advice to contact our appeal agent, Mr. John Booth, 31 Park Street, Montclair, N.J." On April 22, 1951, the board received a letter from appellant in which he said, "I filled out an application for a IV-E classification and received a I-A from the local board.I would therefore like to appeal my case." After some further correspondence on the necessity of registrant taking a physical examination prior to his papers going to the appeal board, the papers were sent to that body. From there they went to the Department of Justice for an advisory opinion concerning the validity of the conscientious objection. The file was returned to the local board on November 20, 1951, from the appeal board with the I-A classification being retained. In December of that year there was a request by a farmer, as employer of registrant, for the latter's defendant. That was denied. On February 5, 1952, appellant refused to submit to induction. He was indicted under the statute for this and thereafter was tried to the court and convicted.

Appellant's first contention is that he was denied a hearing by his local board. The Selective Service Regulations, 32 C.F.R. Sec. 1624.1(a), provide that every registrant, after classification, shall have the opportunity to appear before the local board if he files a written request within ten days of notice of classification. Appellant never filed such request. The attempt is made to construe his letter to the board of April 7, 1951 (above quoted) as complying with the regulations. The letter on its face states the registrant's disappointment at his classification by the board, that he would like to appeal his case further and it asks what procedure he should follow. The board promptly replied and suggested he get in touch with the board's appeal agent. On April 22nd there was another letter from registrant asking that his classification be appealed and stating the grounds. The board advised Borisuk that prior to his file being sent to the appeal board he must first have a physical examination. There was more correspondence on this and then on May 21, 1951, in accordance with Borisuk's request that an appeal be taken, his file was sent to the appeal board. Plainly, a request therefor never having been made, there was no denial of a hearing by the board.

It is next asserted that the court deprived the defendant of substantive and procedural due process in that the district judge, in determining that the board had a basis for its classification of appellant and had not acted arbitrarily or capriciously, gave great weight to appellant's answers to the questions on the conscientious objector form. The foundation of the objection is that though the board file was produced by the secretary of the board no member of the board testified.

The file was properly received into evidence under the federal business document rule.*fn2 Appellant's completed selective service form was in the file and contained the information above outlined. The facts there stated and others readily inferable from them were ample to support the board's I-A classification. Estep v. United States, 1946, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567; Cox v. United States, 1947, 332 U.S. 442, 68 S. Ct. 115, 92 L. Ed. 59. Appellant asks, how could the court determine what the members of the board understood but by their testimony? Appellant misinterpreted the purpose of the trial judge's inquiry. He was not seeking to ascertain the state of mind of the board but simply whether there was sufficient evidence before it in order to properly classify Borisuk.

It is also argued under this caption that the appellant was foreclosed by the trial court from challenging the statements in the hearing officer's report.*fn3 Connected with this is the charge that appellant had no opportunity to examine the FBI investigatory report until immediately prior to the trial.

Since the opinion of the Supreme Court in the combined cases of United States v. Nugent and United States v. Packer, 73 S. Ct. 991, there is no longer any possible doubt but that "* * * the statutory scheme for review, within the selective service system, of exemptions claimed by conscientious objectors entitles them to no guarantee that the FBI reports must be produced for their inspection." 73 S. Ct. at page 994.

With reference to what transpired at the trial in connection with the hearing officer's report, the record reveals that for some time prior to trial appellant and his lawyers were in possession of a full copy of the board file as returned to the local tribunal by the appellate body. That file included a copy of the hearing officer's report. The latter in turn contained a lengthy summary of the FBI report which alone takes up seven typewritten pages of the appendix. At the direction of the district judge the FBI report was actually furnished the defense in court just before the start of the trial.

At the trial the government witnesses were the clerk of the local board who had registrant's file and an army officer who testified that Borisuk had refused to submit himself to induction. The first defense witness was the executive secretary for the New Jersey Baptist Convention. He testified that the Baptist Church has never taken an official position regarding participation in war and that it left its members to their own individual judgment on that question. The next witness was the minister of registrant's church. He was called, counsel stated, because "* * * there was a report issued by a hearing officer which is part of the Selective Service file and which entered into the consideration of the appeal board, and in that report there is a statement questioning the sincerity of the defendant. * * * now we are bringing in evidence to show the report was wrong." The report unmistakably identifies this witness as one of those interviewed by the FBI, it synopsizes his testimony, which was very favorable to registrant, and states concerning him and his evidence, "While this Pastor is not a conscientious objector himself, and thinks Andrew's beliefs to be wrong, the Pastor has no doubt of Andrew's sincerity." The other purpose in calling the witness was "* * * to show the background of the family." The hearing officer's report went into this phase of the Pastor's testimony fully. He had known the family over ten years, "* * * they are good church goers including Andrew." He confirmed "* * * the fact that all of the Borisuk children are attending college and trying to make the best of their opportunities."

The above witness was not produced by registrant before the hearing officer but it is obvious from the latter's report that he accepted him as one who believed in registrant's sincerity and who considered that registrant had a good family background. The court refused to hear a repetition of that testimony. This was not materially prejudicial to registrant. The evidence had been ...

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