Joe Mike AYERS, Appellant, v. UNITED STATES of America, Appellee, 240 F.2d 802

JAMES ALGER FEE, Circuit Judge. Ayers was convicted of a failure to report for induction into the military service in accordance with the order of a local board. The criminal case was tried before a judge of the United States District Court, sitting without a jury by consent. The question decided therefore was one of fact. The judge found upon the facts that defendant was guilty. The proceeding was not a review of the record before the Selective Service Board. Such records only enter the case as evidence to show that appropriate notice was given to defendant to report.

Defendant had two witnesses, himself and another, who testified in the case. Upon appeal there is no transcript of record, so we do not know what either of the witnesses said in the District Court. The Selective Service record was stipulated to and admitted in evidence. Upon the basis of this record, defendant Ayers now asks reversal of the conviction. This record showed that Ayers registered under the Selective Service system and came up before Local Board No. 140, San Diego County. On July 11, 1950, he was classified by the Local Board in Class 1-A and notified of that action.

Shortly thereafter, he sent a letter to the Board appealing his classification on the ground that he was studying for the ministry. Thereupon, Pasadena College verified the statement that registrant was preparing for the ministry in that institution. As a result, the Board placed Ayers in Class 4-D and notified him. Long Beach State College notified the Board on February 17, 1953, according to the record, that Ayers was enrolled there as a special student with only twelve units of instruction.

By letter dated February 18, the Local Board notified registrant that additional information must be supplied if he were to continue in Class 4-D. In a letter dated the same day, Ayers claimed for the first time to be conscientiously opposed to war. On February 24, the Local Board received a second letter from him expanding his reasons for conscientious objection and for transferring from a theological school to a state college. Ayers filed with the Board the special form for conscientious objector, which was almost entirely filled out in the handwriting of a girl who had assisted him.

After receipt of this special form, the Local Board on March 4,1953, again classified Ayers in Class 1-A and notified him by mail on March 5, 1953. Ayers thereupon requested a personal appearance and appealed this classification of 1-A. As a result, on March 19, 1953, he appeared personally before the Board, and, as a result, the Board agreed to classify him in 1-0. He apparently based his plea in part upon his membership in International Christian Revival Association.

Ayers sent a letter dated March 19, 1953, to confirm his statement of belief, which contains the statement: “I will stand and fight for this our America or the world, but I refuse to use the means which the world is using to gain peace.” In a previous letter, he had said: “I’m in just a small group of people and we are trusting Christ and His word that He will give us a revival for our day.” In regard to this claim, R. R.

Sanders, Captain, U.S.A.F., who was coordinator of District Headquarters No. 6, which was set up under Selective Service Regulations, wrote a letter dated April 23, 1953, giving to the Local Board certain facts which had come to his attention concerning the International Christian Revival Association above mentioned, since the registrant was claiming membership in that association as a basis for his current belief.

The pertinent information was that the organization consisted of some twenty members, was incorporated in 1951, and had decided on November 18, 1952, that they were conscientiously opposed to war and on that day passed a resolution to that effect. Advice was given as to the action of another Local Board with reference to a member of the same organization. Complaint is chiefly made of the paragraph in the letter: “In view of the above, it would appear that a classification of 1-0 is not warranted under the provisions of

Section 1622.14 of the Selective Service Regulations.” Thereafter, on regular forms, Ayers volunteered for civilian work and filed these with the Board on April 30, 1953. The minutes of the Board do not set forth anything as to meetings or discussions thereafter, except that they show that on May 7, 1953, the Board again classified registrant in Class 1-A. On the next day, notification of this classification was mailed to Ayers. By a letter dated May 13, 1953, registrant appealed the 1-A classification and requested a personal appearance.

He enclosed in the letter the “Articles of Belief” of the International Christian Revival Association, to which he belonged. On May 21, 1953, registrant appeared personally before the Local Board and was given another hearing. The Local Board voted to continue registrant in Class 1-A. A copy of the memorandum summarizing what occurred at this personal appearance is contained in the Selective Service file, and on the same day Ayers was notified that he had been continued in Class 1-A. On June 18, 1953, the Local Board forwarded the Selective Service file of registrant to the Appeal Board.

Thereafter, the United States Attorney moved to secure an advisory recommendation from the Department of Justice. Ayers appeared before the hearing officer, who recommended that his claim for exemption be not sustained. In the report of the Department of Justice, it is stated: “The Hearing Officer reported that the registrant stated that he was opposed to participation in war in any form. The registrant advised the Hearing Officer, however, that he believed that it was proper for governments to carry on wars and that people should be in the Army.

He stated that he believed that it is satisfactory for those who choose to protect themselves through the use of force. He does not believe that he should participate in war.” Government’s Exhibit 1, page 76. His relation to the association upon which eventually he based refusal of induction is quite confused. The Federal Bureau of Investigation reported he was dropped from the rolls thereof “in approximately August, 1953.” At the hearing, it was shown he was a member accepted as of January 31, 1954. On April 15, 1954, the Appeal Board placed registrant in Class 1-A.

On April 19, 1954, the Local Board received the Selective Service file from the Appeal Board. Ayers was notified of his classification in Class 1-A by the Board on the same date. On May 4, 1954, defendant was ordered to report for induction May 19. He requested a transfer to Local Board No. 135, which was granted, and Local Board No. 135 ordered defendant to report for induction June 9, 1954, upon which day he reported for induction but refused to submit thereto. The points raised on appeal are numerous.

It is said that the order to report for induction was void because the Local Board (1) applied an erroneous theory of law in classifying defendant, (2) acted arbitrarily, capriciously and without basis in fact in reclassifying him, (3) acted contrary to regulations by reopening and reconsidering the classification of Ayers, (4) denied Ayers access to information which was the basis of the classification, and (5) denied him a hearing. The first and second points are considered together. The attack upon the classification of the Board is based simply upon the fact that the letter of Sanders appears in the file.

From its mere presence, it is argued that the members were overwhelmed and their judgment vitiated and that an erroneous theory of law was injected into the case. But all this is pure speculation. Again, it is argued that the Board acted arbitrarily and capriciously and without basis of fact in making the classification. It is demonstrable that the Board had firm foundation in the personality and actions of Ayers, and the mere presence of the letter of Sanders in the record of the Board is no proof to the contrary.

In truth, the letter of Captain Sanders really pointed out facts which may not have been previously noticed by or known to the Board. The recent date of the resolution against war by the group of which Ayers claimed to be a member may possibly have been one of the elements in classifying Ayers a second time as 1-A. They may have believed the training and beliefs of Ayers were exemplified by this organization, and the most recent change was accomplished after he was threatened with military service.

Captain Sanders was a “District Coordinator,” duly authorized by law and regulations to communicate and cooperate with the Local Board. Under the Selective Service System, many of these members of state organizations were properly military officers or had military titles. The Local Boards would have difficulty in learning the facts about religious organizations, some of which are national or international in scope and others of which are relatively small and unknown, as was the case here. There has been no claim that the facts stated in the letter were erroneous or misleading.

There was no fraud charged, and on the facts there could not have been. The letter was not directed at Ayers personally, but set out facts concerning the organization whose teachings Ayers was claiming gave him immunity. There is no principle which indicates that the Local Board is confined in the determination of fact to examine only materials which Ayers had brought before them. The record of this criminal case is fair and complete on its face. The government proved affirmatively each and every material fact necessary for conviction.

The record was submitted to the trial judge, together with the testimony of defendant and his witnesses, which is not before this Court. There is no showing that anyone testified that the Local Board corruptly or prejudicially classified Ayers. There is no testimony or any record before this Court that the Board gave any weight to the letter of Captain Sanders. This Court cannot decide on such a record that the Board did not give full and impartial consideration to all the facts adduced on both sides and to the personal beliefs and training of the registrant.

The trial judge tried the case and found on the showing before him that defendant was guilty. Since that whole record is not before this Court and there is sufficient evidence to sustain every factor necessary for conviction, we are powerless to set the judgment aside. It was the essence of the function of the Local Board to examine all the facts and the material on both sides relating to this question. The mere fact that the particular information involved was received from a military officer, who had a legitimate function under the Selective Service System, should not taint the information which he proffered.

There is no showing that the members of the Local Board were overwhelmed by this letter or surrendered their judgment on the facts and the personality of Ayers because it appears in their files. Since it was their duty to weigh these facts, there is no reason, either in the record or as a matter of general knowledge, to question their conclusion. There is no suggestion in the record anywhere, nor did defendant apparently make an attempt to prove in the District Court, that the Local Board applied an erroneous theory of law in classifying the registrant in this case.

The opinion which the Captain volunteered in the letter was apparently a conclusion of fact. But Ayers was later before them in person, urging the contrary conclusions of fact. So long as the Board gave a fair hearing, all of the facts were within their competence. Captain Sanders had no power to make classifications himself. The Board was not bound to adopt any conclusion or opinion of his. Besides, the opinion at which the Board finally arrived as to the classification of Ayers has not been found so erroneous or shocking by the trial court as to require that court to set it aside.

Nor should this Court substitute its judgment for the judgment of the Local Board or the District Court, each of which apparently acted upon evidence which justified its conclusion. The record shows clearly that the Local Board had ample basis for its several classifications of Ayers in 1-A, based upon his personal attitude, training and belief as he explained it to them. The thinking of defendant all through this period is shown by the record to have been extremely confused.

He was attending a theological college and got into difficulty because he could not go along with the thinking of his teachers or his fellow students and attacked them, according to his own statement. He then transferred to a secular college. He was enrolled in an organization which did not pass a resolution that its members were opposed to war until November 18, 1952. After his reclassification by the Local Board, he was apparently dropped from membership and later re-enrolled in 1954. The Local Board was entitled to consider this instability of belief and principles.

We may therefore answer the second point by saying that the record does not show that the Local Board acted arbitrarily and capriciously and without basis in fact in for the third time classifying Ayers as 1-A. Third, the regulations establish that the Local Board did not act contrary to regulations in changing the classification. As to notice of reclassification, it is stated: “Notice of action when classified> tion considered anew.

When the local board reopens the registrant’s classification, it shall, as soon as practicable after it has again classified the registrant, mail notice thereof on [the designated forms] * * 32 C.F.R. (1956) § 1625.12. As to hearing on reclassification, it is stated: “Right of appeal following reopening of classification. Each such classification shall be followed by the same right of appearance before the local board and the same right of appeal as in the case of an original classification.” 32 C.F.R. (1956) § 1625.13.

As to the ordinary right, upon original classification, for personal appearance before the Board, the Regulations provide: “Every registrant, after his classification is determined by the local board * * * shall have an opportunity to appear in person before the member or members of the local board * * *” 32 C.F.R. (1956) § 1624.1(a). There was no denial of applicant’s protections under these Regulations.

Furthermore, the Local Board had a perfect right, if facts were called to its attention which might have a bearing upon the personal attitude and beliefs of applicant, to reclassify Ayers without giving him any notification that such action was impending. The Regulations state that the Local Board can reclassify “upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification.” 32 C.F.R. (1956) § 1625.2(b).

By Regulations 1625.11, et seq., it is provided that a reopened classification must be considered anew and that all rights of personal appearance, appeal and other privileges must be accorded to registrant. All these privileges were accorded to Ayers, including a personal appearance and a hearing. The information upon which the Board acted may possibly have been that contained in the letter of Captain Sanders, but this Court is not bound to conclude that that was the only basis or even the motivating basis, since, as noted below, the Board is not required to record its inner thoughts and motives.

We only know it did have information which apparently had not been considered before. Another claim of defendant is that he was denied access to the information which was the basis of his classification. There is nothing in the record which shows this charge to be true. Since the hearing was held soon after-wards, it is to be assumed that any new information which the Board had was acted upon and discussed at that time. The fact that he enclosed the “Articles of Belief” of this organization with his demand for personal appearance indicated he thought the belief as a member thereof was pertinent.

Since there was a hearing, we must assume that it was a regular one, and, since the files are public for the inspection of a registrant, it must be assumed that he exercised this privilege. This issue was apparently never raised in the trial court. There is positive evidence in this case that the Board offered to Ayers a 1-A-O classification and that Ayers refused it. In any event, the trial judge decided the case on the questions of fact. Since the entire record is not before this Court, his findings must be accepted.

Since the fifth point is an attack upon the procedure of the Local Board, the differentiation of the position of that Board and the Appeal Board must be noted. Classification by a Local Board is the keystone of the process of induction. These Boards are composed of residents of the community in which the registrant has lived. The underlying theory is that everyone called for service in the armed forces is entitled to consideration by the local people who presumably know him best. These Local Boards, of course, therefore reflect community knowledge and feeling.

It is nowhere said that such local residents are confined to hearing evidence by the registrant. The information they have concerning him, his character and beliefs, may come from any number of sources. They are required to give him a personal hearing at various stages of the proceeding. A denial of such a hearing is fatal. But the Local Board is not required to state exactly what elements they considered in classification or reclassification. There is no requirement that they keep elaborate recordings of the matters discussed, their meetings or their considerations when changing a classification.

The requirement that the Local Board keep “minutes” is satisfied by a formal record' of action taken and cannot be construed to demand detailed discussions. The order to report for induction was not void because of the contention that the Local Board denied Ayers a hearing upon his claim to be classified as a conscientious objector. The record shows that he was given a hearing upon each case when he asked for it. The Board showed its fairness by giving full weight to his pleas upon one occasion and only apparently changed its holding in view of evidence of the inconsistency of his conduct and claim of belief. In

summary, the only basis for the argument that the Local Board in effect denied a hearing is found in that the Board did not set out affirmatively each step in the consideration given Ayers. But the fallacy of this position lies in the fact that the government was not under any necessity of proving this part of the record at all. It was only under the necessity of proving that the order to report was given and that defendant violated it and failed to report. It is the duty of the Appeal Board to classify the registrant de novo.

Therefore, if there was any possible deviation from due process, it would be corrected on appeal. Tomlinson v. United States, 9 Cir., 216 F.2d 12. The only possible exception to this is where the Local Board refused personal appearance to the registrant. Neither Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453, nor Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467, applies. The errors complained of here have to do with Local Board procedure, while in the Simmons and Gonzales cases the matters related to appellate procedure.

There is no factual basis herein whereby any contention that a résumé of the FBI report was denied Ayers, Simmons v. United States, supra, or that a copy of the recommendation of the Department of Justice was not sent to him. Gonzales v. United States, supra. As a matter of fact, the record seems to show all these details were carried out. This Court has no authority to substitute its view of the situation for either that of the Local Board or of the Appeal Board, where opportunities for personal appearance were given and personal appearances were actually had. Witmer v.

United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428. Affirmed. . 32 C.R.R. (1950) § 1004.14(a). . 32 C.F.R. (1956) §§ 1604.12, 1604.14. . 32 C.F.R. (1956) § 1604.14(

a) specifically authorizes military personnel to be on the staffs of State Headquarters for Selective Service. . The courts have come a long way since Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, rehearing denied, 3.21 U.S. 802, 64 S.Ct. 517, 88 L.Ed. 1089; 322 U.S. 770, 64 S.Ct. 3147, 88 L.Ed. 1595, where the trial courts were directed not to allow evidence upon such subjeets to be submitted to the triers of fact. But they have not yet come to the point where speculation can undermine a judgment. . Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428. . Knox v.

United States, 9 Cir., 200 F.2d 398. . 32 C.F.R. (1956) § 1604.58. . 32 C.F.R. (1956) § 1626.25(c).