Gonzales v. United States

RESPONDENT:United States
LOCATION:Superior Court of Bibb County

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 364 US 59 (1960)
ARGUED: May 02, 1960
DECIDED: Jun 27, 1960

Facts of the case


  • Oral Argument – May 02, 1960 (Part 2)
  • Audio Transcription for Oral Argument – May 02, 1960 (Part 2) in Gonzales v. United States

    Audio Transcription for Oral Argument – May 02, 1960 (Part 1) in Gonzales v. United States

    Earl Warren:

    Number 416, Raymond Gonzales, Jr., Petitioner, versus United States.

    Mr. Covington.

    Hayden C. Covington:

    May it please you, Mr. Chief Justice, and the other gentlemen of the Court.

    The writ of certiorari in this case brings here for review a decision of United States Circuit Court of Appeals for the Tenth Circuit confirming a judgment of the District Court of Colorado convicting the petitioner in this case for a violation of Universal Military Training and Service Act.

    We present to the Court by the petition for substantial questions.

    First is whether or not the petitioner was denied procedural due process of law by the Department of Justice making use of a memorandum of the local board that was made without any notice or knowledge to the petitioner that he had, upon the occasion of his personal appearance before the Board, exaggerated his ministerial activity when, as a matter of fact, he had discontinued full-time ministry therefore and he had no notice of this until effort was too late, namely, when the recommendation got into the Board of Appeal.

    He had the opportunity to answer for the first time and then the Department of Justice had already formed this position against him.

    The second question is whether or not he was denied procedural due process of law before the Appeal Board by the withholding of the report of the hearing by the hearing officer of the Department of Justice.

    We have two additional questions that are procedural and if — it would be reached if the Court does not decide the first two in our favor, namely, whether or not the District Court denied procedural due process of law and disallowing the request of the petitioner by subpoena duces tecum to command the production of the hearing officer’s report which was for the purpose of establishing that he had been denied procedural due process of law before the Appeal Board in several respects and the withholding of the hearing officer’s report, and then, also the quashing of the subpoena duces tecum commanding the production of the FBI reports which had been summarized by the Department of Justice and forward it to the Appeal Board.

    This petitioner registered — registered with his local board in the Southern Colorado and — at the time so that he was the minister of Jehovah’s Witnesses and the conscientious objector.

    At that time, he was engaged full-time in a big sugar business working secularly.

    And also, he was a full-time minister, a pioneer in the organization of Jehovah’s Witnesses having been certified as such by the Watchtower Bible and Tract Society.

    He showed these facts to the local board and the local board denied both the ministerial exemption and the conscientious objector classification.

    The case then proceeded on appeal to the Board of Appeal where there was a hearing before appealed decision and hearing in the Department of Justice.

    In the interim, he had discontinued his full-time ministry and the résumé of the Department of Justice inquire had showed that he had discontinued his ministerial activity full-time according to the report of an interview with an officer of the Watchtower Society, the governing body of Jehovah’s Witnesses in Brooklyn.

    The Appeal Board denied the classification of conscientious objector, and he was ordered prosecuted but because of decisions of this Court, the case in Sicurella against the United States, the first recommendation of the Department of Justice was considered to be illegal.

    And then, the case was reopened and reprocessed according to local board memoranda.

    Then it becomes — the very crucial and vital question in this case arises on the second process.

    He had his classification of one and then he requested a personal appearance and hearing before the Board which was granted on August the 17th, 1956.

    According to the undisputed evidence, the testimony I’m talking about now, and in this connection, I’d like to call the Court’s attention that the Government did not call any board member, did not call the clerk of the Board but continued itself merely with the subpoenaing of the custodian of the records of the selective service system for the entire State of Colorado, Mr. (Inaudible), the Deputy Director.

    The testimony shows that Gonzales, when he was before the local board, offered to prove that he was a minister notwithstanding the fact that he had discontinued the full-time ministry, but he never got around to the point of giving any evidence, whatever, for the purposes for which he want therefore, namely, because when he appeared there, the Board told him that they had already considered this matter and have their minds made up and the case was going to the Board of Appeal.

    So, he got no opportunity to talk.

    Then he was — and in fact, driven out of the Board according to his testimony which was not disputed.

    And the case on that day, that very day of hearing was forwarded to the Board of Appeal and here, it’s significant to note that nowhere in this draft board file is there a written notice of appeal that the Government talks about him having a right to file supplement to it setting forth arguments and facts that he felt the Board had overruled.

    But on the very day, and I call your attention to a paper that’s not printed but which appears in the Exhibit 1, the Government’s exhibit at page 42 in longhand, at the lower right hand corner of the Exhibit 1 there is called an individual appeal record.

    Now, the record in this case has printed the questionnaire which has the minutes on page 136.

    But that — those minutes are not complete and they do not show everything that happened in this case, namely, the date that this case was forwarded to the Board of Appeal, August the 17th, 1956.

    It’s usually the regular procedure of draft boards to allow several days for a registrant to file some sort of a written statement before the papers go out.

    But since they told him that he could appeal orally, and he did so appeal when he had no opportunity to complete his testimony before them are offered when he went there to prove, there was no chance for him to file any statement on appeal and also, there was no chance for him to make any complaint about this memoranda of August the 17th of 1956 that we complain about where they take up and copy a letter that was written to the Board back in three or four years earlier when he was a full-time pioneer and make it appear that he had been given a full hearing on the ministry that day and that’s set forth on page 7 in my brief, in Footnote 5.

    It’s identical in every respect.

    Hayden C. Covington:

    And on the left column, you’ll see that — to show that they copied that old letter verbatim, would like to appear in person.

    If that was a memoranda of the local board of what happened to that personal appearance, it’s ridiculous to assume that while he was then presently appearing before the Board, that he would like to appear in person.

    My point is that when he took this appeal in this state of affairs to the Board of Appeal, the whole file was sent to the Board of Appeal.

    He had no opportunity to know that that memoranda had been put in the file.

    Then, the case was referred to the Department of Justice and they conducted the FBI inquiry.

    Then there was a résumé made of that FBI inquiry.

    He was given a notice to appear before hearing officer, Evensen in Boulder, Colorado, I believe it was, and did appear.

    And at that hearing, Evensen did not go in to this business of this exaggerated statement.

    He didn’t bring up anything about that at all.

    He went into a lot of other matters that’s not necessary to relate here on this particular question.

    And after having given this man a hearing and not having brought up this business of exaggerated hours, which the man testified he never did, all he did is, apparently, took this old letter and copied it in there as a memoranda of what had occurred.

    The Government argues that he read that letter to the Board.

    Well, there is no testimony to support that.

    They didn’t bring the clerk.

    They didn’t bring any board member.

    Potter Stewart:

    Is he coming to the point —

    Hayden C. Covington:

    Yes, sir.

    Potter Stewart:

    — when — when did the petitioner first learned of this memorandum?

    Hayden C. Covington:

    After he had been indicted.

    And he was in the office of Mr. Evensen.

    And I was present interviewing him in Denver, Colorado two days before the trial in the District Court.

    That’s the first time he learned of it.

    As a matter of fact, the recommendation of the Department of Justice does not even refer to the memorandum.

    It merely said that he had exaggerated his hours whereas the first résumé, and I’d to direct your attention, the Government said that this man fooled the Board about these matters, I’d direct your attention to page 165 and 167 — 166 and 67.

    That’s the résumé of the first inquiry before this case was reprocessed showing in the records that this man have discontinued the pioneer minister.

    And also, his letter there showed that he was now married and was doing masonry work, all of this before the second processing.

    They say that he should have notified the Board when he was before the Board on personal appearance.

    His testimony is he didn’t even have a chance to tell them anything about this matter.

    Before they — he left, they did ask if he had any additional evidence to offer and he brought out about his having gotten married which they’d already been notified about.

    But — anyway, he had his hearing.

    Hayden C. Covington:

    The case went then to the review officer in Washington on the conscientious objector section.

    And the — that review officer then did not notify this man of this intent to rely on this memoranda or the contents of it, but made this recommendation against him adversely on this paper that he have no notice of.

    He got the notice of course that they’re relying on this contention after he got the — after they had made their recommendation to the Appeal Board.

    But after all, that was entirely too little and too late, as I state and show on my brief.

    Now, it’s my suggestion to the Court that Gonzales applies here.

    This man was ruled against for all practical purposes before the Appeal Board without any notice of the position that the Department was taking until it was entirely too late.

    They say, “Oh, he have the right to answer the recommendation.”

    But that’s entirely too little and too late.

    Here’s the powerful Department of Justice.

    The records show 95% of all their recommendation are accepted by the Appeal Board having taken this position against him.

    And it’s preposterous to believe that he had a — any sort of a chance to answer that recommendation.

    And as a matter of fact, he did attempt to answer and show the truth of the matter but his recommend — his answer was ignored.

    I’m going to pass up the argument about the hearing officer report having been — should have been included in the file.

    I take the position, the outstanding regulations that were in existence when Congress passed the law on 1948 and then again in 1951, required that it’d be included because the old procedure at that time required that it’d be included.

    They say it’s harmless.

    I say it’s very important because this man took two witnesses when he went there to — appear before Evensen.

    And that — purpose of that report was to give a record of evidence that was offered.

    And consequently, it should have been included for the benefit of the Appeal Board under Section 6 (j) of the Act.

    Coming now to the subpoena business, error of the District Court in quashing these subpoenas.

    That hearing officer’s report should have been brought to — before the District Judge to enable me to approve that the hearing officer, at least, had included favorable evidence or had not included a record of this testimony.

    At least the recommendation of the Department of Justice is not even referred in any of this testimony that this man offered through himself and two witnesses before the hearing officer.

    So the fact the recommendation is silent on it, then the way to get at it was to get the subpoena to command the production of that hearing officer’s report and make the comparison of the two to see if this man was denied procedural due process before the Appeal Board on — in that respect.

    Coming now to the question of the error of the Court in quashing the subpoena duces tecum commanding the production of the FBI report, the hearing officer had the original reports.

    The hearing officer used the original reports.

    It’s true the defendant was sent a résumé along with the recommendation that went from the Appeal Board to him.

    He got the résumé of the first inquiry and the second inquiry.

    But I say to you, gentlemen, that when Congress passed the draft law in 1940 and reenacted it in 1948 and again in 1951, Congress intended that not only the adverse evidence be included from the FBI report but also the favorable evidence.

    Congress didn’t intend to have a one-sided presentation or a one-sided hearing in the Department of Justice on this conscience objector claim.

    Therefore, it was wrong for the Department of Justice to make a résumé only of the unfavorable and merely refer to the favorable evidence.

    And I say this, that I have the right to prove a violation of procedural due process in the Appeal Board by the withholding of favorable evidence by the Department of Justice in making this résumé of the inquiry.

    Hayden C. Covington:

    And when I — the only way you can do that is to subpoena the original report and show that there was an inadequate and an unfair résumé made, just like I argued in the Fourth Circuit about the matter.

    It’s just like litigating the adequacy of a book review on the District Court.

    How can the District Judge determine the matter without reading the book?

    But does he do it just by reading the book review?

    It’s as simple as that.

    The law has allowed him to make these résumés.

    And (Inaudible) allowed him to get by with not producing the FBI report in the administrative level.

    They prosecute the man because he violates the order of an administrative agency.

    He had the opportunity to prove — should have had the opportunity in the District Court to determine whether or not that résumé was adequate.

    Did it withhold favorable evidence?

    The Ninth Circuit has said in quite that Congress intended that this FBI inquiry and hearing on the Department of Justice be in the favor of the registrant, namely, to turn up favorable evidence.

    The very purpose of taking the appeal was to correct any errors.

    The law says it’s got to be fair and just.

    The thing can’t be fair and just unless both sides are heard.

    It can’t be fair and just when favorable evidence is withheld from the Appeal Board.

    I say that I am not satisfied in these cases until I have the opportunity to look at the original FBI report.

    A lawyer can’t do his duty to a client to determine whether or not, and the Court can’t do its duty in determining whether or not there has been favorable evidence withheld from the Appeal Board until a comparison has been made between the two.

    Even Judge Sobeloff admitted that when he wrote the opinion in Blaylock.

    I respectfully submit it.

    Earl Warren:

    Mr. Friedman.

    Daniel M. Friedman:

    Mr. Chief Justice, and may it please the Court.

    I would like to set in the factual posture of this case, the precise basis of the Department’s decision, recommendation to the Appeal Board.

    As we think that most of the procedural issues to which Mr. Covington has just adverted, in fact, do not properly presented by the factual posture of this case.

    Now, the recommendation of the Department, and I want to emphasize at the outset that under the statute and the regulations, what the Department tells to the Appeal Board is only a recommendation.

    The Appeal Board specifically is authorized either to follow it or to object it.

    The Department’s recommendation in this case is set forth at page 177 of the record.

    In that recommendation, after the Chief of the Conscientious-Objector Section for the Department summarizes the report of the hearing officer, summarizes the material in the résumé.

    He concludes that the hearing officer reported that the registrant gave —

    William O. Douglas:

    Where are you reading on?

    Daniel M. Friedman:

    Page 176 and 177.

    Daniel M. Friedman:

    I’m first referring to page 176 which summarizes the conclusion of the hearing examiner.

    And the hearing examiner had concluded that although the registrant gave every appearance of being sincere, he did not believe he was sincerely opposed to any participation in military service but only to participation in combat service.

    The department recommendation said they didn’t think they — that could be sustained on this record but then, they went on, page 177 and stated as follows, “On the other hand, the registrant’s claim as to the amount of his religious activities is so highly exaggerated.

    If we are to believe the official records of his religious organization as reported in the résumé and recapitulated above as to cast doubt upon his veracity and consequently upon his sincerity and good faith.”

    Now, that conclusion rests on a report in the registrant’s draft file made by the local board just after he had appeared before the local board at his interview in 1956.

    That report is set forth at page 173 of the record.

    That report stated that the petitioner had told the local board at the interview that he was then devoting 100 hours a month to preaching as a pioneer and an additional 50 to 75 hours a month in other religious activities.

    Now, it is not disputed that at the time this incident took place, the petitioner was only devoting six and one-half hours a month to his preaching.

    William O. Douglas:

    Was that —

    Daniel M. Friedman:

    The —

    William O. Douglas:

    — the information in the report that he wanted you to examine?

    Daniel M. Friedman:


    That was set forth in the first résumé, Mr. Justice Douglas.

    There were two proceedings.

    He went through the appeal proceedings twice.

    And he, himself, conceded at his trial that at that time, he was only devoting six and a half hours a month to preaching.

    The fact is that he only spent six months in the so-called “pioneer status” as devoting 100 hours a month to preaching.

    After six months, he gave up his full-time ministry.

    Now, the petitioner has not denied at any point in this proceeding, even in the District Court and the Court of Appeals or before this Court, that a misstatement of this character, if it had been made before the local board, warranted the denial of his claim to conscientious objector status.

    In other words, he does not contest that if, at the time he claimed to be devoting 100 hours a month to religious preaching, he was only devoting six and a half hours a month, that misstatement warranted the local board and the Appeal Board in denying his claim.

    Did he claim he never made the statement?

    Daniel M. Friedman:

    He claims he never made the statement, Mr. Justice.

    Earl Warren:

    Was there any oral evidence that — to the effect that he didn’t make this statement?

    Daniel M. Friedman:

    The only evidence, Mr. Justice, is in the report of the draft board but —


    Daniel M. Friedman:

    This is the item at page —


    Daniel M. Friedman:

    That is correct.

    Well, this is only evidence that he made the statement in 1 — in Record 173.

    But we think there is additional evidence which supports the validity of this statement.

    Earl Warren:

    Well, is that — is — is there any significance of the fact that that statement was identical to the statement he had made four years before in exactly the same words and figures and even punctuation?

    Is there anything significant to that that — that those two records are identical and that on the other hand, there was no oral testimony to the effect that he did actually make his second statement in precisely the same language as he had made it four years before?

    Daniel M. Friedman:

    We don’t think so, Mr. Chief Justice.

    I’d have to have three answers to that.

    Earl Warren:


    Daniel M. Friedman:

    In the first place, the statement begins with the word “Mr. Gonzales stated”.

    In other words, before the language of the previous letters included, it has the word “Mr. Gonzales stated”.

    Now, we don’t know what happened at the draft board but we do know that this statement was a record which the draft board was authorized to make because under the regulations, only written material maybe relied on as the basis for classification.

    Now, perhaps, this was read at the draft board, perhaps, it was incorporated but we think the real answer is what is set forth by the Court of Appeals on this issue at page 190 of the record.

    And they say as follows, at the top of the page, “Even if we assume that the Board copied the fourth paragraph of appellant’s letter of November 22nd, it would not impeach its record if, in fact, he told the Board substantially the same thing he stated in his letter of November 22nd.”

    Earl Warren:

    Yes, but was there any evidence — was there any evidence that he did tell them that?

    Daniel M. Friedman:

    Just the —

    Earl Warren:

    All — all we have here are the two — the two letters so-called.

    And the — and the Court or the — the Board there says that it make no difference if what he did actually say was the same as what he had said four years ago, but is there any — is there any oral evidence to the effect that he did actually say these things before the Board?

    Daniel M. Friedman:


    There is no testimony he denied it.

    But, Mr. Chief Justice, the trial court, who heard this testimony, concluded that, in fact, his testimony did not outweigh the official records.

    Earl Warren:

    We’ll recess now.