United States v. David Mizrahi , 417 F.2d 246 ( 1969 )

ELY, Circuit Judge:

Mizrahi seeks reversal of his conviction for having refused to submit to induction under the Universal Military Training and Service Act, 50 U.S.C. App. § 462.

On March 12, 1965, Mizrahi registered with Local Board No. 101 in Los Angeles, California, and, on May 4, 1966, he received a I-A classification. Shortly thereafter, on May 31, 1966, Mizrahi obtained a Special Form for Conscientious Objectors (S.SS Form No. 150) which he completed and personally returned the following day. In that form, the appellant initially claimed that his beliefs were such that he should be exempt from both combatant and noncombatant service (class I-O); however, upon appearing before his local board, Mizrahi indicated that he would accept a classification which would exempt him only from combatant training and service (class I-A-O).¹ When he amended his SSS Form No. 150 to reflect this change of heart, the board, on June 1, 1966, classified him I-A-O.

Unhappy with the classification which he had received, Mizrahi subsequently sought review of his status. The local board authorized his appeal and forwarded his file to the appropriate Selective Service appeal board. On April 20, 1967, the appeal board determined that the I-A-O classification should not be altered. After refusing to comply with the induction notice which followed the appeal board’s determination, Mizrahi was indicted and convicted. He rests his appeal upon the principal contention that the Selective Service authorities neglected to follow the regulations which then governed the processing of appealing registrants who claimed to be conscientious objectors.

Prior to July 1, 1967, it was prescribed that there should be a Justice Department hearing whenever a local board denied a registrant’s conscientious objector claim and the appeal board, upon preliminary examination of his file, agreed with the local board’s disposition. See United States v. Haughton, 413 F.2d 736 (9th Cir. June 19, 1969). The regulation provided in part:

“(a) If an appeal involves the question whether or not a registrant is entitled to be sustained in his claim that he is a conscientious objector, the appeal board shall tentatively determine whether or not the registrant is eligible for classification in a class lower than Class I-O. If the appeal board finds that the registrant is eligible for classification in Class I-O or in a lower class, it shall place him in the appropriate class.

“(b) If the appeal board tentatively determines that the registrant is not entitled to classification in either a class lower than Class I-O or in Class I-O, it shall transmit the entire file to the United States Attorney for the Federal Judicial district in which the appeal board has jurisdiction for the purpose of securing an advisory recommendation from the Department of Justice.”

32 CFR § 1626.25 (1967). See also Selective Service Act of 1948, § 6(j), 62 Stat. 604, 613, 50 U.S.C. § 456(j), as amended, 65 Stat. 75, 86, 50 U.S.C. App. (Supp. V) § 456(j) (1951).

The procedure for processing registrants who were formerly entitled to a Department of Justice hearing under the now repealed 32 CFR § 1626.25 (1967) was as follows: (1) The Department would refer the appealing registrant’s name to the FBI for an investigation of his background and reputation; (2) The FBI would report its findings by a written resumé to the Justice Department; and (3) The Justice Department would then designate a “Hearing Officer” to conduct the hearing. At such hearings, registrants were entitled to be presented by an “advisor” and, if they desired, could present witnesses to testify in their behalf. Thereafter, upon request, registrants were entitled to know the “general nature and character” of any “unfavorable” evidence developed by the Department’s investigation so that they might have an opportunity to rebut any unfavorable recommendation made to their appeal boards. See United States v. Nugent, 346 U.S, 1, 2-5, 73 S.Ct. 991, 97 L.Ed. 1417 (1953).

Due to the appeal board’s action of April 20, 1967, there was no FBI investigation of Mizrahi, and he was not accorded the Department of Justice hearing. The Government urges that the hearing was not required since the question of “whether or not [Mizrahi] is entitled to be sustained in his claim that he is a conscientious objector” was not before his appeal board. See 32 CFR § 1626.25 (1967). This contention is based upon the fact that Mizrahi, who was already in class I-A-O, the classification which he had earlier agreed to accept, did not, in taking his appeal, specifically request full exemption as a conscientious objector. However, it is obvious that when Mizrahi took his appeal, he was not satisfied with the partially exempt status attending his I-A-O classification. In the circumstances, it would be incongruous, if not almost ridiculous, to assume that he took an appeal in order to obtain the next highest classification (I-A), a classification which would allow no exemption whatsoever for his claimed beliefs. Moreover, there was, at that time, no lower classification, other than I-O, to which he might have been entitled under the “facts” which appear in his Selective Service file. There is no reasonable alternative to our holding that Mizrahi, by appealing, fixed upon the appeal board the obligation to consider whether he should be classified I-O.

When Mizrahi’s file was forwarded to the appeal board, that body was required to make a de novo• classification decision and place Mizrahi in the lowest classification to which he would be eligible pursuant to the appeal board’s de novo evaluation. See 32 CFR § 1626.-26 (1967); 32 CFR § 1623.2 (1967). Since class I-O was the only lower classification for which Mizrahi, according to his file, might be eligible, the appeal board was obliged to consider the appeal as raising the question “of whether or not [Mizrahi] is entitled to be sustained in his claim that he is a conscientious objector.”

The Government also argues that under United States v. Haughton, 413 F.2d 736 (9th Cir. 1969), a Justice Department hearing was not required. In Haughton our court held that a registrant whose Selective Service file had been forwarded to his appeal board, but who had not been processed by the Department of Justice prior to July 1, 1967, was not entitled, as of right, to a Department hearing. Under this holding, there are two situations wherein the denial of Justice hearings to registrants who might have been entitled to such hearings under the former procedure is proper: (1) When the appealing registrant’s file reached the appeal board after July 1,1967; (2) When the appealing registrant’s file was forwarded to the appeal board before the “cut-off” date of July 1, 1967, but his claim had not been acted upon by the appeal board because it was awaiting a Justice Department recommendation and the Justice Department had not then, on July 1, 1967, had an opportunity to process the claim.

Mizrahi falls in neither category. He filed an untimely notice of appeal on December 22, 1966, but on February 13, 1967, his local board authorized the appeal. His file was sent to the appeal board but on April 20, 1967, over two months before the “cut-off” date, that board decided to by-pass a Department of Justice recommendation and make its determination to retain Mizrahi in class .I-A-O. Hence, as of the “cut-off” date, July 1, 1967, Mizrahi’s appeal had already been decided adversely to him, and he had already been denied his right to the application of procedures then required and outlined in 32 CFR § 1626.25 (1967). Indeed, as of the “cut-off” date, Mizrahi had already been ordered to report for induction on July 11, 1967. Haughton cannot be so far extended as to justify the appeal board’s failure to follow the then required procedure.

Considering the nature of the Department of Justice hearing and the FBI investigation to which Mizrahi was entitled, it is obvious that Mizrahi might not now stand convicted of a felony had there been faithful compliance with the pertinent regulations. It follows that the omission was prejudicial. Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968); Briggs v. United States, 397 F.2d 370 (9th Cir. 1968). Gf. Welsh v. United States, 404 F.2d 1078 (9th Cir. 1968). Nevertheless, it is suggested that reversal would be an “idle” act since the omitted procedure, under new regulations, will not be applied to Mizrahi when he next undergoes the Selective Service process. This suggested approach is specious. Those rights of Mizrahi with which we are concerned are his rights as they existed when his appeal board reviewed his file. The possible course of future events is irrelevant.²

It is regrettable that the appeal board’s fatal disregard of the controlling regulation was not specifically directed to the attention of the District Court. That Mizrahi’s only persuasive contention should be advanced in our court for the first time is unfair to the District Court and constitutes an imposition upon us. Nevertheless, defense counsel moved for a judgment of acquittal and, under established precedent, we must hold that we are obliged to resolve the critical issue. See Howze v. United States, 409 F.2d 27 (9th Cir. 1969) and Oshatz v. United States, supra.

Reversed.

1 . In the court below, Mizrahi insisted, in effect, that this decision was hastily made and that his then temporary agreement to the higher classification was induced by “coercion” of his local board and his then misunderstanding of his rights.

2 . We note, however, that acceptance of the Government’s suggestion would require the assumption that Mizrahi could not now mount a more persuasive claim than that which he presented to his appeal board on April 20, 1967. We can make no such assumption. At the time of the appeal board’s hasty, and premature determination, the ignored Department of Justice hearing would have been attended by a searching FBI investigation and the opportunity for both Mizrahi and his witnesses to testify before a hearing officer with specialized expertise in the evaluation of claimed conscientious objector beliefs. See United States v. Nugent, supra. We cannot assume that Mizrahi, anticipating adherence to the then required procedure, had advanced the full force of his claim to the appeal board. He may well have relied upon his ability to achieve conviction of his sincerity in subsequent interviews or in the Justice hearing which he was then entitled to expect.