Petitioner, a member of Jehovah's Witnesses who had sought and
had been denied conscientious objector exemption, was convicted
under the Universal Military Training and Service Act for refusal
to submit to induction into the armed forces.
in the circumstances of this case, the failure of
the Department of Justice to furnish petitioner with a fair resume
of all adverse information in the Federal Bureau of Investigation
report deprived him of the "hearing" provided by § 6(j) of the Act,
and the conviction is reversed. Pp. 348 U. S.
(a) The requirement of § 6(j) that a fair resume of FBI reports
be made available to the registrant is not a matter of grace within
the Department's discretion, but is an essential element in the
processing of conscientious objector claims. P. 348 U. S.
(b) The Government's contention that petitioner failed to make a
timely request for the summary cannot be sustained; nor may
petitioner be deemed to have waived his rights in this respect. P.
348 U. S.
(c) The remarks of the hearing officer at the hearing in the
Department did not give petitioner adequate notice of the
unfavorable evidence in the FBI report, and the hearing was
therefore lacking in basic fairness. Pp. 348 U. S.
(d) A fair resume is one which will permit the registrant to
defend against the adverse evidence -- to explain it, rebut it, or
otherwise detract from its damaging force. P. 348 U. S.
(e) The Government's contention that no prejudice was shown and
none resulted cannot be sustained. Pp. 348 U. S.
(f) Petitioner has been deprived of the fair hearing required by
the Act, a fundamental safeguard, and he need not specify the
precise manner in which he would have used this right -- and how
such use would have aided his cause -- in order to complain of the
deprivation. P. 348 U. S.
213 F.2d 901 reversed.
Page 348 U. S. 398
MR. JUSTICE CLARK delivered the opinion of the Court.
This case presents another question concerning the processing of
conscientious objector claims under the Universal Military Training
and Service Act. Petitioner contends that the failure of the
Department of Justice to furnish him with a fair resume of all
adverse information in the Federal Bureau of Investigation report
deprived him of the "hearing" provided by § 6(j) of the Act, 62
Stat. 612, as amended, 50 U.S.C.App. § 456(j), and thereby
invalidated his I-A classification. In the circumstances of this
case, we conclude that a fair resume, as contemplated in United
States v. Nugent, 346 U. S. 1
was not furnished petitioner, and that this deprived him of a fair
hearing within the terms of the Act.
Petitioner registered under the selective service laws in 1948.
He was then employed as a chauffeur at the Great Lakes Naval
Training Center, having had 8 years of grade school and 2 1/2 years
of high school. At that time, he did not claim to be a minister or
a conscientious objector, but stated that he believed his
Page 348 U. S. 399
should be I-A. The local Board so classified him. In 1949,
petitioner was married, and, on June 4, 1951, he was given a
dependency deferment, which was terminated on October 22, 1951.
Within a week of his restoration to I-A, petitioner filed the
special form for conscientious objectors, claiming exemption from
combatant and noncombatant service. In this and in subsequent
statements to the selective service authorities, petitioner
revealed that he had first been contacted by a member of the
Jehovah's Witnesses in November, 1949; that he had started a Bible
study course at that time, and had progressed gradually toward the
status of minister; that he had become an unordained minister in
December, 1950, and an ordained minister in October, 1951; that he
preached from house to house and on the streets, giving public
expression to his conscientious objections to war; that the demands
of his "ministry" and the commands of the Bible, admonishing him
not to kill and to follow God rather than men, precluded his
participation in the military; and that he would not use force
"[u]nless it be under the supervision of Jehovah God." After a
personal appearance, in which petitioner sought exemption as a
minister rather than as a conscientious objector, the local Board
continued him in I-A. Petitioner filed an appeal. The Appeal Board
tentatively found against him, and referred the case to the
Department of Justice.
Following an investigation by the Federal Bureau of
Investigation, petitioner was notified to appear for a hearing. No
copy of the notice appears in the record, but it appears that the
form sent to registrants during the period in question stated that
the hearing officer would advise the registrant "as to the general
nature and character" of adverse evidence in the FBI report if he
requested such information "at any time after receipt by him of the
notice of hearing and before the date
Page 348 U. S. 400
set for the hearing." [Footnote
] There is no evidence that petitioner made such a request
prior to the hearing. He did, however, make a request at the
hearing. According to petitioner's uncontradicted testimony, the
hearing officer told him that the FBI report disclosed that he had
been hanging around poolrooms, and the hearing officer asked him if
he did that now. Petitioner replied that he did not, and asked what
else was in the report. The hearing officer changed the subject. He
subsequently asked petitioner's wife how she was feeling, and how
petitioner was treating her. Her reply was "fine." The hearing
officer reported that petitioner impressed him as sincere, but
recommended that he be classified I-A because his religious
activities coincided with pressure from the Draft Board.
In its report to the Appeals Board, the Department of Justice
adopted the hearing officer's recommendation, relying on the timing
of petitioner's religious activities and "his abusiveness and the
exercise of physical violence towards his wife." [Footnote 2
] The latter reason rested on data
presumably gathered by the FBI. According to the Department's
Page 348 U. S. 401
report, police records showed that petitioner was arrested and
fined in May, 1950, for hitting his wife; that the police were
called upon to settle a "hot argument" in June, 1950; and that
petitioner's wife claimed in January,
Page 348 U. S. 402
1952 that he was "abusive" towards her. Also narrated in the
report, although not specifically relied on in making the
recommendation, is the statement of a "confidential informant"
that, prior to his recent religious activity, petitioner had been
"a rather heavy drinker and crap shooter in and around local
taverns and pool halls." [Footnote
] Petitioner was continued in I-A by the Appeal Board. He
refused to submit to induction, and this prosecution followed. On
trial, petitioner claimed that he had not been afforded a fair
summary of the FBI report, and secured the issuance of a subpoena
requiring production of the
Page 348 U. S. 403
original report. On motion of the Government, and over objection
of petitioner, the subpoena was quashed. Thereafter, petitioner was
convicted, and the Court of Appeals for the Seventh Circuit
affirmed, 213 F.2d 901.
Section 6(j) of the Act provides that "[t]he 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,
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
". . . 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 346 U. S. 6
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 of conscientious objector claims.
United States v. Nugent
represented a balancing between
the demands of an effective system for mobilizing the Nation's
manpower in times of crisis and the demands of fairness toward the
individual registrant. We permitted the FBI report to remain secret
because we were of the view that other safeguards in the
proceeding, particularly the furnishing of a fair resume,
maintained the basic elements of fair play. If the balance struck
is to be preserved, the registrant must receive
the fair summary to which he is entitled. The Department expressly
recognizes this and, since Nugent,
has furnished each
registrant, at the time
Page 348 U. S. 404
he is notified of the hearing, with a written resume of the
information developed in the FBI report, a copy of which is also
placed in his file for use by the Appeal Board. [Footnote 4
The Government assumes that the Department of Justice is
required to furnish the registrant with a fair resume upon request.
But it contends that petitioner failed to make a timely request for
the summary; that the remarks of the hearing officer gave him
adequate notice of the unfavorable evidence in the FBI report; and,
finally, that the lack of notice, if there was such, was
As to the request for the summary, the Government must rely on a
document which is not in the record and which was not open to
attack or explanation in the trial court. Indeed, had the
Government produced the form notice in the lower courts, petitioner
might have been able to show that he had made a request prior to
the hearing. But, leaving these difficulties aside, the notice
reproduced in the Government's brief does not, in our view, convey
clearly to the layman the idea that he must make a request for the
resume prior to the hearing or forever waive his rights in this
respect. [Footnote 5
] There is
nothing in either the statute or the regulations authorizing such a
waiver. And the discussion of this point in Nugent,
U.S. at 346 U. S. 6
10, was not directed at the time or method of requesting the
resume, but only at its availability.
That petitioner never received a fair resume of the unfavorable
evidence gleaned by the FBI seems hardly arguable on this record.
As to his alleged gambling and drinking, the hearing officer merely
told petitioner that he was reported to have been hanging around
pool rooms. And,
Page 348 U. S. 405
as to the reported incidents of violence and abuse towards his
wife, the hearing officer, in an apparent aside, advanced only the
general query to petitioner's wife, asking her how petitioner was
treating her now. A fair resume is one which will permit the
registrant to defend against the adverse evidence -- to explain it,
rebut it, or otherwise detract from its damaging force. The remarks
of the hearing officer, at most, amounted to vague hints, and these
apparently failed to alert petitioner to the dangers ahead.
Certainly they afforded him no fair notice of the adverse charges
in the report. The Congress, in providing for a hearing, did not
intend for it to be conducted on the level of a game of blindman's
buff. The summary was inadequate, and the hearing in the Department
was therefore lacking in basic fairness.
The Government's argument that no prejudice was shown and none
resulted can be readily disposed of. Relying on a case concerned
with constitutional restrictions on the States in regulating public
utilities, Market Street Railway Co. v. Railroad Comm'n of
California, 324 U. S. 548
contends that the petitioner must specifically show prejudice in
order to question the fairness of the resume. The holding of the
Market Street Railway
case was that the Due Process Clause
was "not to be trivialized by formal objections that have no
substantial bearing on the ultimate rights of parties;" that the
Commission could make "incidental reference" to the railroad's own
reports to verify its judgment, formulated on the basis of the
entire record, without introducing the reports in evidence.
at 324 U. S. 562
We are now now dealing with constitutional limitations. We are
endeavoring to apply a procedure, set forth by Congress, in
accordance with the statutory plan and the concepts of basic
fairness which underlie all our legislation. We have held that, to
meet its duty under § 6(j), the Department must furnish the
registrant with a fair resume of the FBI report. It is clear in
Page 348 U. S. 406
circumstances of this case that it has failed to do so, and that
petitioner has thereby been deprived of an opportunity to answer
the charges against him. This is not an incidental infringement of
technical rights. Petitioner has been deprived of the fair hearing
required by the Act, a fundamental safeguard, and he need not
specify the precise manner in which he would have used this right
-- and how such use would have aided his cause -- in order to
complain of the deprivation.
It being evident from the record before the Court that the
Department of Justice has failed to provide petitioner with a fair
resume of the FBI report, it is unnecessary for us to pass on
petitioner's further contention that the trial court erred in
quashing his subpoena duces tecum.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, adhering to their
dissent in Nugent v. United States, 346 U. S.
, 346 U. S. 13
join in this opinion and judgment.
MR. JUSTICE REED would affirm on the ground that, as no summary
was requested, it was not necessary to furnish more to the
registrant than was given by the hearing officer. See Gonzales
v. United States, 348 U. S. 407
The form notice appears as an appendix to the Government's
brief, p. 55. The pertinent paragraph follows:
"2. Upon request therefor by the registrant at any time after
receipt by him of the notice of hearing and before the date set for
the hearing, the hearing officer will advise the registrant as to
the general nature and character of any evidence in his possession
which is unfavorable to, and tends to defeat, the claim of the
registrant, such request being granted to enable the registrant
more fully to prepare to answer and refute at the hearing such
The complete text of the report is as follows:
"Registrant is twenty-five years of age, married, born in
Illinois, and has completed approximately two years of high school.
At the present time, he is employed as a chauffeur. He was first
contacted by a member of the Jehovah's Witnesses Sect in November,
1949, although the exact date of membership is not reflected."
"The registrant believes in a Supreme Being, and describes the
nature of his belief by citing various parts of the Scriptures, in
part, as follows:"
" Romans 13:1 -- . . . that Jehovah God and Christ Jesus are the
higher powers, and I recognize them as the supreme powers. Peter at
Acts 5:29 admonishing all footstep followers of Christ Jesus that
'We must obey God, rather than men.' Also Paul at 2 Cor. 4:4. . . .
Satan the Devil is the God of this system of things. Showing that
we show [sic
] obey the Creator, rather than the Creation
of God. Jehovah God in one of his Ten Commandments at Ex. 20:13
'Thou shall not kill.'"
"Registrant relates that, in November, 1949, at the suggestion
of one Clarence Howze, he started a Bible book study, and, as he
progressed, wanted more and more to become a minister of truth. At
the present time, he is receiving training from the Watchtower
Bible and Tract Society. As to the question regarding use of force,
he states 'None whatsoever. Unless it be under the supervision of
Jehovah God.' He claims to engage in the work of his religion by
preaching from house to house and on the streets."
"At his present place of employment, he has been seen reading
the Bible during lunch hour and discussing same with a few
co-workers. References, all of whom are members of the same sect,
believe registrant is sincere, as do his neighbors. A confidential
informant, of known reliability, reports that, during the last
seven or eight months, registrant was actively engaged in
distributing pamphlets; that, prior to that time, registrant was
personally known to him as a rather heavy drinker and crap shooter
in and around local taverns and pool halls. This informant believes
registrant is now sincere. Registrant states he has changed his
ways, and now prays many times during the day. His wife also states
he has changed. It is to be noted that registrant is reported to
have had a very poor home life."
"Police records reflect that registrant was arrested May 29,
1950, on a complaint by his wife that he pulled her out of a car
and hit her in the face -- fined $13.60; on June 12, 1950, police
were called to settle a 'hot argument,' and, on January 6, 1952,
wife claimed registrant was abusive. Police settled last two
matters, so no charges were filed."
"The file also reflects that registrant was mailed his
questionnaire on December 6, 1948, and did not sign that part
(series XIC) reserved for a conscientious objection. He was
classified I-A on December 23, 1948, and married his present wife
on March 5, 1949."
"The Hearing Officer reports registrant impressed him as
sincere, but notes that his religious activities are coincident
with pressing draft activities by officials, and, therefore,
recommends a I-A classification."
"From the available information, it appears that registrant had
little, if any, religious training prior to November, 1949, and it
was not until after his 3-A classification was changed to I-A that
he evidenced any conscientious objection. From the time he first
attended a Bible study class until approximately October, 1951,
registrant had a little less than two years of Jehovah's Witness
religious training. In addition to the fact that his religious
activities coincide with pressing induction possibilities,
registrant's absorption and sincerity as to his newly found
religion is rendered more questionable by his abusiveness and the
exercise of physical violence towards his wife. In this connection,
police records reflect a complaint by his wife as late as January
"After consideration of the entire file and record, the
Department of Justice finds that the registrant's objections to
combatant and noncombatant service are not sustained. It is
therefore recommended to your Board that registrant's claim for
exemption from both combatant and noncombatant training and service
be not sustained."
This informant had also stated that petitioner had changed his
ways, and now seemed sincere. While the statement as a whole may
therefore be favorable to petitioner's claim, the disclosure of
petitioner's gambling and drinking activities was certainly
This procedure was not in effect at the time petitioner was
notified to appear for his hearing.
Registrants are not to be treated as though they were engaged in
formal litigation assisted by counsel. United States ex rel.
Berman v. Craig,
207 F.2d 888; Smith v. United
157 F.2d 176.
MR. JUSTICE MINTON, dissenting.
Even if the Board has denied petitioner a fair resume of all
adverse information in the FBI reports, it does not appear to have
been done arbitrarily or capriciously, and the judgment of the
Board in doing so was allowable "even if erroneous." It takes more
than disagreement with the Board to destroy jurisdiction, the only
condition upon which courts may interfere. I would affirm.