(dissenting) :
I concur in the court’s decision to reverse appellant’s conviction, but I dissent from that part of the decision remanding the case for further testimony.
Prior to July, 1967 administrative review of Local Board rejections of conscientious objector claims followed a different path from that of other claims. Appeal from such a denial was followed by an F.B.I. investigation, a hearing before the Department of Justice at which the registrant was permitted to be heard on the “character and good faith” of his conscientious objections, an advisory recommendation by the Department, and an opportunity for the registrant to file a written reply to this recommendation with his appeal board. See United States v. Broyles, 423 F.2d 1299, 1305-1306 (4th Cir. 1970). The decisions in United States v. Deere, 428 F.2d 1119 (2d Cir. 1970), and United States v. Gearey, 368 F.2d 144, 151 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), which authorize the remand procedure followed here arose under the pre-1967 statutory scheme. Cf. Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970) (remand for hearing in a habeas corpus case). This case presents quite a different problem.
Under the 1967 amendment to the Selective Service Act, administrative review of conscientious objector claims was removed from the Justice Department and is now processed through ordinary State Appeal Board channels. The Appeal Board’s review is restricted to the record before the Local Board, 32 C.F.R. § 1626.24(b) (1). The only additional matter which may be considered is a written statement by the registrant specifying why he believes the Local Board erred. 32 C.F.R. § 1626.12. Thus pre-1967 administrative review of conscientious objector claims included de novo investigation, de novo opportunity to be heard, a requirement for a written recommendation, and an opportunity to reply to that recommendation. Now all that is left is an opportunity to submit a written statement of reasons why the registrant believes the Local Board erred. It is hard to see what he could say to the Appeal Board when he has no more notion than we have of the basis for the Local Board's action.
In Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), a conscientious objector case which arose under the pre-1967 statute, the registrant contended that his classification was invalid because he was not furnished a copy of the Justice Department’s recommendation to the Appeal Board and afforded an opportunity to reply thereto. The Supreme Court reversed his conviction and said:
Just as the right to a hearing means the right to a meaningful hearing, United States v. Nugent [346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417], supra; Simmons v. United States, supra, so the right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered. 348 U.S. at 415, 75 S.Ct. at 413.
*939By the 1967 amendment Congress removed the Justice Department from the picture and thereby removed from the picture the administrative procedural requirements held by Gonzales v. United States, supra, to be a prerequisite to a valid induction order.
In this case we hold that the absence of an indication in the file of the Local Board’s reasons for rejecting appellant’s conscientious objector claim makes meaningful judicial review impossible. How, then, was meaningful administrative review possible at the Appeal Board level? And if the registrant was not afforded an opportunity for such review, how can his conviction stand, in view of Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970)? That case reversed a conviction where a Local Board had, in the guise of refusing to reopen, rejected a prima facie claim for reclassification and thereby deprived the registrant of an administrative appeal. The Court said:
Because of the narrowly limited scope of judicial review available to a registrant, the opportunity for full administrative review is indispensable to the fair operation of the Selective Service System. 398 U.S. at 416, 90 S.Ct. at 1771.
In Gearey, where the remand procedure, which we now follow, was adopted, and in Deere, prosecutions arose under a statute and regulations which complied with the administrative appeal requirements of Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed.2d 453 (1955) and Gonzales v. United States, supra, and the induction orders were presumptively valid. By holding that testimony in a criminal case is a sufficient substitute for reasons, and an opportunity to meet those reasons before the Appeal Board, we are holding that the 1967 amendment to the Selective Service Act in effect eliminated the requirement for meaningful administrative appellate review in conscientious objector cases. That result is unwarranted, for it seems clear to me that meaningful administrative appellate review is the due process quid pro quo for postponing judicial review until a criminal case or a post-induction habeas corpus case. Mulloy v. United States, supra.
Moreover, the remand procedure adopted in Gearey and Deere has double jeopardy aspects which are disturbing, for we are permitting the government to reopen its criminal case and furnish evidence of facts beyond those which were the basis for the indictment. We now hold that the Local Board must state reasons for its action before appellant can be convicted. It had not stated those reasons before appellant was ordered to report for induction, or before he was indicted. Yet the decision permits the government a second bite at the apple. I recognize that Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960), and Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950), interpret 28 U.S.C. § 2106 as permitting a retrial even in cases where the defendant would, because of a gap in the Government’s proof, have been entitled to a judgment of acquittal. Despite these authorities, I have difficulty understanding why permitting the Government a second opportunity to avoid a judgment of acquittal because it failed to prove all necessary elements of the offense does not put the defendant twice in jeopardy. I have even greater difficulty understanding why their authority should be extended to permit the Government not only to remedy a defect in the proof required for a prima facie case, but also to remedy a defect in the administrative process on which the validity of the criminal charge depends.
I would reverse the conviction.