Before DUFFY, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
Each of the defendants here was charged with and, in separate trials, convicted of failing and refusing to perform civilian work in violation of Section 462 of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq.
The defendants now appeal, pointing out that the applicable regulation, 32 C.F.R. § 1604.41 (1949 ed.), requires the appointment for each local board of advisers for registrants and the posting of the names and addresses of such advisers on bulletin boards in the offices of each local board; and that no advisers had been appointed for Local Board 56, before which defendant Manns appeared, or for Local Board 58, before which Thoman appeared, and no names and addresses of such advisers were posted on the bulletin board of either of these local board offices. The defendants insist that because of these violations of the regulations they have been denied procedural due process of law in the proceedings before these boards, and that the subsequent action of each board in classifying them I-O, as conscientious objectors, and in ordering them to report for and to perform civilian work was, therefore, a nullity; and that the failure of each defendant to comply with these orders did not constitute a violation of Section 462 of the Act.
In each of these cases the office of the local board was located in the same group office with four or five other boards. There was one chief clerk for all of the boards in the group. In a situation such as this the employees of the boards which were without advisers for registrants had been directed to tell registrants in need of advice or assistance to use one of the advisers appointed for one of the other boards. The names and addresses of the advisers for the other boards were posted on the bulletin board in the group office. Defendant Manns admitted that he was told by the Clerk of Local Board 56 that he could talk to the advisers appointed for the other boards in that office if he desired to. However, Manns said that he did not talk to any adviser of another board.
Each of the local boards also had one or more appeal agents who ordinarily were lawyers and who, by Regulation 1604.71(d)(5), 32 C.F.R. § 1604.71(d)(5), were required "To be equally diligent in protecting the interests of the Government and the rights of the registrant in all matters." Defendant Thoman admitted that the statement, "for advice see your government appeal agent," was printed on his registration card which he had been regularly carrying, and that he had read this statement on his card.Yet Thoman admitted that he had never conferred with an appeal agent even in taking his appeal from the local board. Thoman testified in his criminal trial that he "had no reason to see the appeal agent."
Thus we see that each of these defendants was informed of the advice and assistance available to him on any question he may have had concerning his rights before his local board but that neither defendant took advantage of such advice or assistance.
In spite of these facts, however, the defendants insist that because, in violation of the applicable regulations, no advisers to registrants had been appointed for these two boards and because the names and addresses of such advisers were not posted on bulletin boards in the offices of these two local boards, the boards' actions concerning these two defendants were a nullity, and the defendants were not required to comply with the orders of these boards. Two of the cases cited by the defendants to support this contention are United States v. Fry, 2 Cir., 203 F.2d 638, and United States v. Stiles, 3 Cir., 169 F.2d 455. But in each of those cases the violation complained of was the failure of the board to promptly notify the registrant of his classification and the consequent inability of the registrant to properly present his appeal for a different classification. In those cases the failure of the board to notify the registrant of his classification may well have resulted in the registrant's not obtaining a lower classification to which he was entitled. In Gonzales v. United States, 348 U.S. 407, 7 S. Ct. 409, 99 L. Ed. 467, the Court reversed a conviction where the local board failed to reveal to the registrant certain information and thus deprived him of his right to properly present his side of the case to the appeal board.
On this point the defendants also rely on Chernekoff v. United States, 9 Cir., 219 F.2d 721, in which the court expressed "serious doubt as to the validity" of the practice of a local board of not posting the names of advisers to registrants as provided by 32 C.F.R. § 1604.41, and said that the practice presented "another problem of due process." However, in Uffelman v. United States, 9 Cir., 230 F.2d 297, another case in which the appellant relied heavily on that court's statement in the Chernekoff case as to the violation of § 1604.41, the court said, 230 F.2d at page 301: "But the passing reference in the Chernekoff case does not control here. There no showing was made that the registrant had available the battery of 'advisers' that were ready to assist the appellant in the instant case." The court there pointed out that counsel agreed "that the 'label' given to such advisers is not important, so long as the registrant is assured of ready and sound advice."
In each of the instant cases the defendant appealed from the classification of I-A originally given him by his board and as a result of the appeal each was given a I-O classification. Each of the defendants now admits that he was not entitled to classification as a minister of religion and that the I-O classification was the only classification to which he was entitled under the facts of his case.
However, notwithstanding the fact that advice and assistance were available to each of these two defendants and regardless of the fact that each defendant received the correct classification from his local board, each defendant now insists that, because of failure to comply with Section 1604.41 of the Regulations, he was denied procedural due process of law, and that all action and orders of the local board were invalid, and that his refusal to report for and to perform civilian work pursuant to the order of local board was, therefore, not a violation of 50 U.S.C.A. Appendix, § 462. If there had been any prejudice or harm resulting to these defendants from the violation of the regulation here in question we would agree with their contention.
On page 18 of the appellants' brief, the defendants say: "All that the defendants had to show is what they did show: that the regulation had been violated. Then the burden shifted to the Government to prove by affirmative evidence that they were not harmed." But one party is never required to prove what his opponent freely admits. In the instant cases there was no claim that either of the defendants was not given a fair hearing or that either was prevented in any way from presenting any evidence he desired to present; and in these cases the defendants now freely admit that the I-O classification which they were given by their local boards was the only classification to which they were entitled.
We think it is clear that where, as here, no harm or prejudice to the registrant resulted from a violation of a regulation the proceedings of the board are not invalidated. Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that even in a criminal trial any error, deficiency, irregularity or variance which does not affect substantial rights shall be disregarded.
In Rowton v. United States, 6 Cir., 229 F.2d 421, the court considered the effect of a violation of this same regulation The court there held that since no prejudice to the defendants was shown the violation could not be used as a defense. The court there, 229 F.2d at page 422, characterized the defendants' contention, that the failure to appoint advisers for registrants and to post their names invalidated the board's action, as "reliance upon a bare technicality to show denial to them of procedural due process of law." The court said that the "failure to the local board to ...