The opinion of the court was delivered by: DIMOCK
These are four motions to quash subpoenas issued in behalf of three defendants who have been indicted for violation of the Universal Military Training and Service Act. These motions were argued and submitted together because of the similarity of the facts and issues involved and I shall therefore treat them together.
Each of the defendants Stasevic, Vincelli and Prytyskacz, is a Jehovah's Witness who claimed exemption from military service as a conscientious objector on religious grounds. Each was finally denied such exemption, classified 1A and ordered to report for induction. Each did so report but refused to take the symbolic one step forward when ordered to do so. By this refusal they exhausted their administrative remedies yet remained outside the jurisdiction of the military. Because of this refusal each was indicted for failing and neglecting to be inducted into the armed forces of the United States, in violation of section 462 of title 50 United States Code Appendix.
Each defendant contends that his classification was unlawful primarily because the administrative procedure followed in his case was not in accordance with the requirements of the statutory provision which prescribes the appeal procedure for conscientious objection claimants, section 6(j) of the Universal Military Training and Service Act, 50 U.S.C.App. § 456(j), as amended, and further, because it was without basis in fact. Either of these claims, if substantiated at trial, would require acquittal on an indictment for refusal to accept such a classification and be inducted into the armed forces. Dickinson v. United States of America, 74 S. Ct. 152; United States v. Nugent, 346 U.S. 1, 73 S. Ct. 991 (by implication); United States v. Zieber, 3 Cir., 161 F.2d 90; United States v. Romano, D.C.S.D.N.Y., 103 F.Supp. 597; United States v. Strebel, D.C.Kan., 103 F.Supp. 628; United States v. Graham, D.C.N.D.N.Y., 108 F.Supp. 794.
Section 6(j), supra, provides that, if the local board rejects a claim for exemption as a conscientious objector, the claimant shall 'be entitled to an appeal to the appropriate appeal board.' The statute further provides that the Department of Justice shall hold a hearing and that 'after such hearing,' the Department of Justice shall 'recommend to the appeal board' that the exemption claim be rejected or sustained.
The practice of the Department of Justice with respect to hearings in such cases is to have the F.B.I. investigate the claim and to provide the hearing officer with the F.B.I. report for his use at the hearing. The F.B.I. report is not made available to the claimant at any time, however, nor is the report of the hearing officer, on which presumably the recommendation of the Department of Justice is based.
Each of defendants has issued a subpoena duces tecum for the production of the F.B.I. reports, defendants Stasevic and Prytyskacz have each subpoened his hearing officer to testify at the trial, and defendant Stasevic has issued a subpoena duces tecum for the production of the report of his hearing officer. The Government has moved to quash all of these subpoenas.
The arguments and briefs have concerned themselves almost exclusively with the subpoenas duces tecum insofar as they call for the production of the F.B.I. reports and I shall begin by discussing that problem.
Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., provides that the court, on motion, 'may quash or modify the subpoena if compliance would be unreasonable or oppressive.'
The Government contends that the subpoenas for the F.B.I. reports are unreasonable and oppressive since the material called for is confidential pursuant to the Attorney General's Order No. 3229, issued May 2, 1939.
Defendants' position is that the F.B.I. reports contain evidence relevant to their defense and that the Government, by undertaking the prosecution, has surrendered any right to keep them confidential, citing United States v. Andolschek, 2 Cir., 142 F.2d 503, 506. The correctness of defendants' answer depends upon their claim that the F.B.I. reports are relevant to their defense so I shall proceed to an examination of that question.
Defendants say that they expect to raise the point that the rights of draft registrants enumerated by the Supreme Court in United States v. Nugent, 346 U.S. 1, 6, 73 S. Ct. 991, 994, supra, were not accorded them. The opinion in that case says that the Department of Justice satisfies its duties to the registrant under section 6(j) of the Selective Service Act,
50 U.S.C.App. § 456(j), prior to amendment, '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.' No such resume was supplied to any of defendants here. If defendants were entitled to such resumes and were denied them their inductions were unlawful. A vital issue on the trial will therefore be whether defendants were entitled to the resumes. The determination of that issue will depend upon whether or not there was any adverse evidence in the F.B.I. reports. If not, no resume was required to be supplied. The question of the favorable or unfavorable character of the evidence is, however, a question for the court to decide and the court cannot decide it without seeing the report. Prima facie, therefore, the F.B.I. reports must be supplied.
This conclusion accords with that of District, now Circuit, Judge Hincks in United States v. Evans, D.C.D.Conn., 115 F.Supp. 340, and that of District Judge Hutcheson in United States v. Stull, D.C.E.D.Va.Rich.Div., in an oral opinion rendered November 2, 1953. The Government argues that the conclusion conflicts with the action of the Supreme Court in affirming (without reference to it in the opinion) the quashing of a similar subpoena in Packer's case reported with United States v. Nugent, 346 U.S. 1, 73 S. Ct. 991, supra. As appears from footnote 10 on pages 6 and 7 of 346 U.S., on pages 994 and 995 of 73 S. Ct., however, the subpoena would have served no useful purpose since it appeared at the trial, without examination of the F.B.I. report, that the unfavorable recommendation of the Department of Justice was not based upon unfavorable evidence in the F.B.I. report. Any error in failing to furnish Packer with a resume of the F.B.I. report was therefore harmless. If a like state of affairs should appear at the trial here with respect to any outstanding subpoena, the court at that time would be justified in quashing it.
The Government says, however, that, in this case, the right to the unfurnished resumes was waived by defendants Vincelli and Stasevic so that proof that there was unfavorable evidence in the reports to make resumes necessary would not be ground for holding those defendants' induction unlawful.
Both Vincelli and Stasevic, unlike Prytyskacz, received letters of instruction before their hearings in which they were informed of their right to request the hearing officer to advise them of the general nature of any evidence which was unfavorable to their claims. Neither made such a request. Their inaction constituted a waiver. There is no room for saying that the right was one that could ...