Michael Waldo Simmons v. United States

AINSWORTH, Before WISDOM JOHNSON, Judges, District Circuit Judge. AINSWORTH, Judge: physical Circuit examinations Atlanta April May 6, 1966, May Appellant for violation was convicted May 20, reporting Instead of Training Military of the Universal telegram sent a 462(a),1 Act, App. 50 U.S.C. Philadelphia, Atlanta draft board from “the to as sometimes hereinafter referred informing presently them that he was in Act,” comply in he failed with that to Philadelphia and that he would communi- board order of his local selective service Philadelphia cate the with board. Sub- report into induction to for and submit to sequently, Philadelphia the board ordered the of the States.2 forces armed report 25, 1966, May him to a for Upon of the numerous ob consideration physical Appellant examination. arrived jections by appellant, affirm the we made examination, late for this and it could not in court. the the district verdict rendered performed Finally, be at that time.- the appellant’s The file selective service appellant physically was in examined I-A on reveals that he was reclassified Philadelphia 3, 1966, on June and later 4, 1965, by draft November local report ordered to for induction. A re- Philadelphia, Pennsylvania, and board in quest for transfer the to Atlanta board subsequently report for a ordered to purposes granted, for of induction was physical performed examination to be appellant report and the ordered to was on December 1965. On December August 18, at Atlanta to be inducted on appellant the filed a “Notice 1966. Change Atlanta, Address,” listing August The events of Georgia, residence, place his new as disputed appellant and The confused. request but he not a did a transfer to arrived at the Induction Center in Atlan- Georgia There selective service board. designated ta report- before hour for after, there series occurred an incredible ing, joined group picketing a appellant in events which continu Center, presumably protest against aas ally report physical to flouted orders for approximately inwar Vietnam. At examination no less than occa seven appointed appellant hour the ceased appellant report sions. The failed to picketing Center, attempted to Philadelphia on December Feb gain admission to Induction Center. ruary 9, 1966, and March 1966. On Here, however, version of requested he March a transfer transpired greatly what differs from the purposes to board, an Atlanta for draft testimony of the Government’s witnesses. physical examination, of a on March 24,1966, appellant granted. testified that he this transfer Sub informed sequently, appellant report military personnel failed to for at the door he 1. tinent Selective jurisdiction, lect ment both a fine of not more than shall, upon court of the United States of lations made or under, title “Any rying Hs System herein :N subsection referred to reads part: for not more out * * *, member ^ who perform or provided any shall any conviction in be fine of the punished or the rules and directions knowingly such other Regulations with than five provisions Selective Service duty, person charged $10,000, imprisonment, any given duty fail or competent imprison years provide district of this there * regu neg per- car * 32 C.F.R. poned, tion when or the ment If a upon shall registrant trant an Order to tion ** dered time “When the local board mails to a registrant when the termination of thereafter be his day to registrant *, it shall be the time when report to 1632.14(a). place it shall be circumstances report fails to *. day is his Regardless to for fixed Report for induction at the report induction duty report report registrant continuing duty continuing in such order. such for Induction for induction under to do duty for induc- postpone- the time induc- which so, regis- post- duty or- regard necessity, method se induction. presenting himself lection, composition our defense Sergeant testified Conversely, Gilliam he forces and needs no further is obvious him told Butler, discussion. speak command to someone wished to 172; Bertelsen water-throwing at the incident about Cooney, Cir., 1954, day, “The previous Center on Induction Congressional power provide present appellant did not and that depend upon existence not him that draft does any inform papers or induction being emergency, war national of a purpose of there for the he was power consequence, appel- stems also from Constitutional inducted. As pro rather, support admitted; raise armies and re- lant was navy.” again gain maintain a vide attempted to picketing, sumed 1966, Hogans, Cir., 2 369 separate oc- States v. three four on admission curiam). 359, (per rejoined denial, See also casions, upon 360 and each Henderson, Cir., 1950, Thus, 180 F. 7 picket line. States comrades 711; Connally, Ali S.D. 2d Muhammad appellant, the at events believe Tex., 1967, F.Supp. 266 Arver 345. See a farcical and formed Induction Center 366, 245 38 S.Ct. appel- v. United U.S. incongruous in which scenario 159, (1918); willing 62 L.Ed. 349 and played inductee lant both 1951, Bolton, Cir., 2 F.2d 805 192 spirited protester. curiam). the war While it is true that appellant's efforts However strenuous power, power presumably the to raise and Center, ef- these enter Induction peacetime, subject armies in to consti forts when he arrested were ended limitations, tutional Hamilton v. Ken disobey- officers, charged police with tucky Co., 251 Distilleries & Warehouse ing officer, an to three sentenced 156, 106, 146, 108, U.S. 40 64 L.Ed. S.Ct. County in He the Fulton Jail. months (Mr. Brandeis),3 (1919) 194 con Justice 14, 1966, ac- was released on October may ren national defense siderations cording appellant’s testimony, he der lawful what in a would be unlawful reported to the Induction Center on the Toyosaburo different Kore context. See day, again next but was denied business 214, matsu v. 323 U.S. 16, 1967, Thereafter, May admission. 193, 198, 224-225, 65 89 194 S.Ct. L.Ed. appellant indicted for violation (1944) Frankfurter, (Mr. Justice conc Training Military Universal urring).4 Thus, basis, on this we find Service Act. infirmity in no constitutional Uni I. Military Training Act. versal Etcheverry States, Cir., 1963, 9 v. United appellant makes broad- 873, 874; 320 Rich United States v. constitutionality based attack on mond, C.D.Cal., 1967, 43; 274 Act, asserting compulsory serv However, supra. Arver v. United justified only by ice extreme ne can be appellant mounts one further constitu cessity Congress power and that alleges tional assault on the He Act. support peacetime to raise and armies the existence of student is a deferments subject Rights. to the Bill of That discriminatory arbitrary classifica empowered competent this court is not purposes tion unrelated to the of the Act. super-executive authority sit obviously may While such deferments the Executive review decisions of Legislative government the collateral discrimi- have effect of branches of 1390, (1943) (Mr. parte Milligan, (4 L.Ed. See also Ex 1774 Justice 71 U.S. concurring). Murphy, Wall.) (1866); L.Ed. Home Building Blaisdell, & Loan Ass’n Refugee Commit- Anti-Fascist 4. See Joint U.S. 54 S.Ct. 78 L.Ed. 413 McGrath, tee Hirabayashi Kiyoshi (1934); (Mr. 95 L.Ed. 817 S.Ct. concurring). Frankfurter, U.S. Justice against nating wealthy those who are not impact asserting its on one the war enough enough bright to attend col- argument: “crimes” lege, this classification is reasonable “Regardless proof appellant of the light policy public in favor might present to demonstrate the cor- population. educated relation between the Selective Service Holmes, Cir., 1967, States v. Vietnam, our nation’s efforts County, Avery v. Midland congressional as a matter of law the Texas, power support ‘to raise and armies’ (1968); L.Ed.2d 45 American Glona v. provide navy’ and ‘to and maintain a Co., Liability Guarantee & Insurance quite a matter distinct from the use Gruenwald v. which the Executive makes of those Gardner, qualified who have been found and who have been inducted into the Armed II. Forces. Whatever action the Presi- order, may Congress dent or the sanc- urges tion, impair cannot this constitutional participation in the war States’ power Congress. is in Vietnam of various violation treaties, 2(4) 33(1) “Thus we need Articles consider whether Charter, by appel- the United substantive and the issues raised Nations behavior, ju- appropriate norms lant can ever of international be become hence ly, “It his induction would force is difficult a party to to war “crimes.” think of an area Initial him to less dicial F.2d States v. determination. Hogans * * ^[1966] See United Cir., judicial suited for action” than the con Bolton, See Cir., also United States v. foreign policy duct of the of this nation. (per curiam). 192 F.2d 805 Luftig McNamara, 1967, U.S.App. v. D.C. 373 F.2d are 665-666. We III. any unable find author constitutional appellant alleges that Ne ity by judiciary- for such interference groes, women, age group, members of his charged exclusively in matters Con persons in lower economic brackets gress Luftig and the Executive. Mc deliberately were excluded from the local Namara, supra.7 generally Banco appeals draft process boards and boards Sabbatino, Nacional de Cuba ing case, prosecu and that hence his 11 L.Ed.2d 804 tion pending should be “abated” reform (Mr. Harlan). Moreover, Justice of System. the Selective This into the assumes that induction argument by is foreclosed the decision participation armed forces Clay of this court synonymous, Vietnam are this War 911: clearly is not the case. Medina of held, Second Circuit in United States v. “No court has so far as we can Mitchell, Cir., 1966, determine, here, 369 F.2d nor do we that Ne- a cogently registrant gro articulated difference this for selective is service 2(4) 5. Article reads as follows: peace the maintenance of international security, shall, all, “All Members shall refrain in their first of seek a by negotiation, enquiry, international relations from threat solution media- against tion, judicial use of force territorial conciliation, arbitration, integrity political independence settlement, regional agencies resort any state, any arrangements, or in peaceful other manner in- or other Purposes consistent with the means of their own choice.” United Nations.” Butler, Cir., 7. See United States 33(1) 6. Article reads as follows: parties any dispute, “The the con- likely endanger tinuance of is which rendering prevent would them inducted to be classified and entitled jury (except composed all efficient service board a selective service all males over * Negro females over 70 and percentage members aof ** disqualified). this Negro On were population bears which basis, approximately persons a population, or that board the total 90% returning questionnaires registrant found were jurisdiction un- aof lacks * qualified, disquali- persons not and all not doWe less so constituted. jury placed fied were in the wheel.” justify to include-substan- the failure Negroes tial numbers pro- jury net selection result of this System boards. The Selective Service persons cedure was 15.77% fair, only be must likewise must jury were wheel names were in the whose appearance Ne- of fairness. have Negroes Negroes, comprised whereas gro draftees should be selected population the Atlanta 20.48% Division, military system which service cen- if we assume gives Negro participa- a full citizens Thus, figures accurate. sus still process. in the tion selection disparity theory that the justifies nothing But we have said Negro propor- percentages between exemption armed from service in the large population at tion Negro registrants.” forces for prospective Negro proportion of Cir., States, 5 fatally See also Nellooms United his conviction. taints v. McNa Sellers that Ne settled “It well mara, 893; Haven systematically may groes not be ve arbitrarily excluded grand select nires from which Negro defendant has indicted ed which IV. if stand cannot conviction and that a Appellant attacks denial of similarly a list jury drawn petit on the motion dismiss the indictment States, 5 Mobley composed.” v. United ground that there racial discrimina 768, also Cir., 1967, 770. See F.2d 379 regard composition tion in 202, Alabama, 380 U.S. of State v. Swain jurors jury prospective wheel from which 824, 826, 13 L.Ed.2d 203-204, 85 S.Ct. were In Till selected. v. United States therein; (1965), cases cited 759 908, man, N.D.Ga., 1967, 272 407-408, 404, Georgia, 389 U.S. v. Sims 910-912, succinctly ex Smith (1967) 525, 523, 634 L.Ed.2d 19 88 S.Ct. plained jurors by the method which were curiam); of Geor v. State Whitus chosen in the Atlanta Division: 643, L.Ed. 545, 17 gia, 87 S.Ct. 385 U.S. Vir (1967); v. West brief, provided Strauder 599 “In 2d court (1880); 303, 664 (or 2%) ginia, 25 L.Ed. every U.S. of name 100 selection 50th 1963, Cir., States, 5 registration v. United on the of each Chance voter lists 201, 203; Hansen county F.2d in the Atlanta Division to be 322 766; 763, Cir., 1968, States, F.2d 393 questionnaires. jury ques- 8 mailed The Finkelstein, Application Statisti mailed, The properly tionnaires were with Jury Theory Discrimi Only per Decision a return 50-60 those cal cent. 338, 340- Case, 80 Harv.L.Rev. persons disqualified nation were Clerk jury However, (1966). neither Jury 341 whose answers Commissioner precisely con need venire they nor the stated that had not attained the wheel strength proportionate age years; or had form 21 been convicted popu group the total identifiable in a each State or Federal court of record of Alabama, State by imprisonment punishable a crime lation. Swain also 208, 829. See they at year; 85 S.Ct. more U.S. at than one 380 could States, F.2d Mobley 379 write, read, speak and understand Comment, 771-772; Fifth Cir English language; they had a at History Problem— an Old infirmity physical New mental cuit: which 462 674, Negroes jury Selection, in the Jury 680 sentation of wheel 1 Ga.L.Rev. according sufficient, comparison (1967). with their of the total share It is magnitude formulation, jurors population was not of if traditional overturning fair warrant from a cross-section “drawn States,

community.” Mobley conviction.8 v. United supra also v. State at 771. See Smith holding that Aside from our 164, 128, Texas, L. 61 85 S.Ct. drawn was convicted (1940); Ed. 84 Glasser v. fair of the com cross-section 457, 60, 680 L.Ed. 315 86 U.S. munity, significant to note that Co., (1942); Pac. Thiel v. Southern registration use of voter from which lists 984, 217, 90 L.Ed. U.S. jurors prospective per to select is not se Walker, Cir., (1946); Scott illegal. Cir., Gorin v. 561, 564; Chance F.2d 641, 644; F.2d Chance v. Unit 204- ed at 203. Con Dennis, 2 gress approved registration use of voter (Judge Learned principal as the lists source of names of Hand); States, 5 Rabinowitz v. United prospective jurors recently en when and cases Jury acted the Selection and Service Act Note, therein. The Defend- cited (28 seq.),9 of 1968 U.S.C. et Challenge to a ant’s Racial Criterion designed provide impartial act Standing, Jury Study in Selection: A to be selected at random from a fair Protection, Equal Due Process and community cross-section where (1965). Yale L.J. 923-924 de- court convenes.10 termination a fair what cross-sec- case, depends upon tion of each Prior the facts to the enactment of Section pre- Operation and under the herein Committee on circumstances sented, Jury System underrepre- we find that of the Judicial Conference 9. Pertinent list. jury but ful.), 15% Held iam) tutional.). payers, Negroes which read tion held provisions (Negroes that all titled of the at trict courts of “It “§ ice as a right “No citizen shall be excluded from serv- “§ 1861. Declaration county, only 1862. Discrimination list, random from a lawful.), and of (Negroes is System constitute community jury to be Swain constitute grand 88 S.Ct. 523 Chance United litigants grand 10% of to this discussion are several trial as only See also Hunt policy the only of selection follows: with Sims v. panels. S.Ct. 824 constitute “imperfect” of names in v. State of by jury new 4.7% only 9.8% in Federal courts en- petit juror 26% of the United States on ac- 12% petit Jury fair of constitute 10 to of System of traverse of all males those shall 24.4% juries of held United policy Selection prohibited Alabama, but still law- cross section *. Georgia, population, jury have the unconsti- of selec- selected the dis- of tax- United States grand (Male supra jury Act, box. cur- found Cong., Cong., Representatives Report (to (to the to voter lists where visions within the district or division. cured of actual voters prospective jurors shall— signed tion tional source or The the a grand count of “(2) “§ shall “(a) of this title “(b) ^[*] accompany written accompany 1863. Plan for voter policy legislative in 1st Sess. dated December 2d Sess. plan Among Each specify devise and and origin, to achieve the Senate race, color, religion, sex, ^[*] sources of names registration plan petit shall United States district court * * S. other or economic status. whether S. dated for random selection of history jurors 989). Report protect of the prescribe 989), shall ^[*] place *. random this title.” necessary things, February 6, lists or objectives that shall be de- No. be selected from the names of political of the Act No. into ^[*] some other in such rights House operation to foster the addition * * * ^[*] subdi- selec- ^[*] 90th 90th plan lists na- se- of registration points ment toward voter of which of the United representing lists as ‘the best cross-sec- Irving Cir- the Second R. Kaufman of community; indeed, they legislation tion of the chairman, drafted cuit broadly probably the most based lists whereby jurors at ran- be selected would ” lists, available.’ Ibid. registration Grimes dom voter States, Cir., 1968, basis formed the recommendation this recently approved where we random se- Jury Act Selection registration lection of names from 353.) voter (See After F.R.D. of 1968. jury lists as the sole source of Rabinowitz, supra, names our decision duty involving in a case the United States States Atlanta Division of District Court for the Middle District of District for the Northern District Court significant Georgia, Macon Division. No Georgia, of of in the summer and fall improvement ju- in our federal nation’s jury system selection revised its machinery dicial has ever met (the system being in new effect at unanimity opinion importance of as to its case), present time of the trial of the propriety adoption by has Con- Administrative of the Office gress system jury of the selection at January dis- States Courts registration random from voter lists. description the Atlanta tributed System to each United States District V. in the a recom- Court United States as urges problem mended solution to of selec- judge charging trial erred jurors. tion of See United States v. continuing duty report that he had a Tillman, N.D.Ga., 1967, August 18, for induction between (Smith, J.). Thus, n. “the best the date on which he re was ordered to thought govern- of all three branches of port, 16,1967. May and his indictment on jurisdictions 11. The Judicial Conference of the where lists in a few voter given approval represent had States its to the cross-section of do not a fair prin community.” Kaufman Committee’s ciple and the draft Reports Proceedings of random selection of the Judi- registration voter lists at March 1967 cial Conference the United meeting Washington, Report 1967, pp.. D. The fol C. 41-42. also lowing reports proceedings Proceedings from the Con- the Judicial meeting pertinent: States, 1966, p. of the Conference ference the United “Judge reported pursu- September meeting Kaufman At ant [Ju- authorization of the Conference of the United of States, Judicial September dicial] Conference at its directed the Ad- Conference ** *, 1966 session to communicate with subcommittee ministrative Office appointed study Judges of the United States mechanics Chief proposals relating had heretofore several to both District Courts which “key federal and state man” selection methods selection utilized system juries subject principle such dis- to the to ascertain whether en- system adopted tricts “a dorsed the of random have since Conference manner that selection of in manner which random selection” a a produce produce fair would a would a cross-section fair cross-section of community community in the district or division in the district or divi- sion in in which is held. The Conference which the court is held. As a court is that further it' desirable result of the work of resolved the subcommittee already subsequently committee, those courts which have not of the full possible presented should convert as soon as he done so to Conference for con- key system approved random man sideration and the from the Conference system. a draft of a bill to assure nondiscrim- Proceedings Reports ination in federal and state selec- p. Conference, 1967, 81. tion and service. Judicial Accordingly, from the Ad- such a letter “Title 1 of the draft bill provides was sent to the Chief ministrative Office for the random selection of jurors. Judges United States District Voter lists are to be used as 26, September prospective jurors except on 1967. Courts source of 464 agree. We do not Selective Service States, Cir., man v. 1955, United 8 220 Regulations provide 36, 39-40; States, Smith v. United Cir., 1945, 4 288; 148 F.2d United “Regardless States of the time when Hoffman, Cir., 1943, 416; 137 F.2d regis- circumstances under which a United Collura, Cir., 1943, States v. report trant fails has to for failed (per curiam); F.2d 345 United States v. *, induction it shall thereafter D.Conn., Mitchell, 1965, 874, F.Supp. continuing duty day day his be to * * * affirmed, report to induction to regard The facts in to events at In board, his own local and to each local August duction Center on were board whose area or in he enters whose dispute, appellant’s credibility was area remains.” regard at issue in reported to whether he 32 C.F.R. 1642.15. See Kariakin v. after County Jail, his release from the States, Cir., 1958, United 261 F.2d and, light numerous charges only While indictment prior obeying defaults in selective service regulation offense, one this makes that orders, there is sufficient evidence continuing offense,” offense “a uphold appellant’s conviction. Pardo instructing “There was no error in so States, 926; 369 F.2d at Moor jury.” States, Silverman v. United States, man v. United 389 F.2d at 32. 220 F.2d 39. Graves v. Compare Whitney States, v. United States,12 Cir., 252 F.2d Cir., 1964, 328 F.2d distinguishable because in that Lewis, E.D.Wis., 1967, case the defendant was advised board 1013. As this court stated in Moorman report officials that it was too late to aft- States, 389 F.2d at 32: so, and, er an initial to do fur- failure “Appellant given every opportuni- thermore, the defendant did receive ty comply with the Selective Serv- his notice of induction until after he was separate ice law failed on report. five due to report phy- occasions to as ordered for VI. finally sical examinations for in- Finally, jury’s duction. verdict evidence shows that ground attacked on report there was excuses failure were weak, unsupported insufficient to sustain con evidence and without merit.” course, viction. Of must the verdict be See also Pardo v. United if, light sustained viewed in a fa most at 926. Government,13 vorable there Affirmed. support substantial evidence it. Par Cir., do v. United ON PETITION FOR REHEARING therein; and cases cited Moor AND Cir., man PETITION FOR REHEAR- Substantial means ING EN BANC evidence acceptable “relevant evidence to reason PER CURIAM: adequate support able mind as a con find, clusion.” Ibid. after We a care Rehearing The Petition for denied record, ful review there was panel and no member of nor this substantial evidence which the regular service Court active

could conclude that know having requested polled that the Court be ingly perform statutory duty. failed to rehearing (Rule banc, en 35 Federal Davis Appellate Procedure; Rules of Local States, 5. See Graves v. 12) Fifth Petition for Circuit Rule Cir., 878, 881; 252 F.2d Silver- Rehearing En Banc is denied. also Venus v. United 13. Peters v. United 304, reversed, 287 F.2d 376 F.2d Moorman v. United 7 L.Ed.2d 341 opinion citing curiam Ward 711). 97 L.Ed.

Case Details

Case Name: Michael Waldo Simmons v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 10, 1969

Citation: 406 F.2d 456

Docket Number: 25371

Court Abbreviation: 5th Cir.