Simuel Brent Schutz, Jr. v. United States , 422 F.2d 991 ( 1970 )

COLEMAN, Circuit Judge:

On September 7, 1966, the grand jury for the Middle District of Alabama charged that on or about May 4, 1966, Simuel Brent Schütz, Jr., unlawfully, wilfully, and knowingly did fail and neglect to perform a duty required of him under the Universal Military Training and Service Act [etc.] in that he did fail and neglect to comply with an order of his local board at Tuskegee to report at said board to submit to induction into the Armed Forces of the United States (Title 50 App. United States Code, § 462).

On October 20, 1966, represented by counsel of his own selection, Schütz waived trial by jury.

After trial on October 21, the District Judge found the defendant guilty as charged and sentenced him to serve three years in the custody of the Attorney General.

Schütz appealed and on September 27, 1967, moved this Court to stay further proceedings pending its decision in Sellers v. McNamara [398 F.2d 893, cert. denied June 16, 1969, 395 U.S. 950, 89 S.Ct. 2022, 23 L.Ed.2d 470].

Sehutz’s appeal was orally argued before this Court in Montgomery on October 15, 1969. Three years have thus elapsed between conviction and the hearing on appeal.

We affirm the judgment of the District Court.

Schütz registered on April 3, 1964, age eighteen. On June 3, 1964, he was classified 1-A. On September 11, 1964, he was given the Armed Forces physical examination and found acceptable for military duty.

Over a year later, on October 13, 1965, he received a 2-S classification as a full time student at Tuskegee Institute. On March 3, 1966, Tuskegee Institute informed the draft board that the registrant was no longer a student. He had failed academically. On March 16 he was reclassified 1-A. On March 21 he was again examined and found acceptable. On April 18 the order was mailed to his correct address, directing him to report on May 4 for transportation to the Induction Center. It is admitted that on that day he did not appear.

At the opening of the trial before the District Judge, counsel for appellant made the following statement:

“Now, we at no time have claimed that he wasn’t properly 1-A. The claim is that upon induction, upon being eligible for induction, he was classified and inducted into the Army by virtue of discriminatory processes. As a result of that his name was placed on the list above and before he should have come up in the ordinary course of things. As a result, the induction is the issue, and not the classification.”

The Clerk of the draft board testified that Schütz did not appear on May 4. On May 5, the day after the other inductees had departed for the Induction Center by transportation provided for that purpose, Schütz did appear and stated that he was not going to report, that he was not going to be inducted. He further stated that on the previous day he had been in Lowndes County, Alabama, voting with the Black Panthers.

Schütz took the witness stand in his own defense. He admitted that on May 3, in Lowndes County, Alabama (about sixty miles from Tuskegee) Stokely Carmichael told him that he was to report for induction on May the third or fourth. He spent the day of May 4 “tabulating the returns of the election”. He could not get a car to go to Tuskegee on the fourth because “cars were used for tabulating material on the fourth”.

Schütz testified that he talked with an agent of the Federal Bureau of Investigation at the draft board office on May 5: “I told him, I said, whoever the officer was, that I am reporting for induction as ordered; but that I refuse to be inducted into the service on the grounds that I have personally been discriminated against, which lead back to March 21st, and that there are no Negroes on my Selective Service Board in Macon County [Tuskegee]”.

He further testified that the last address given the local board was Route 2, Box 154-A, Tuskegee, his father’s home. He had not changed his address before being ordered to report. He offered no explanation for failing to receive a notice mailed to him on April 18 at the same post office where he received his mail. Neither did he explain the memorandum in his Selective Service file, which was introduced in evidence, indicating that on May 4 his father did go to the draft board office, where he stated that his son had received the notice to report but was not going to do so.

Schutz’s statement on May 5 that he was “reporting for induction as ordered” was quite inaccurate. He had been ordered to report on May 4, not May 5. By his own admission he knew of the order on May 3. He chose, however, to pursue his personal activities in Lowndes County.

Moreover, his testimony deprives him of the benefit of any inadvertence or excusable delay. He advised both the clerk of the draft board and the F.B.I. Agent on May 5 that he did not intend to be inducted. Therefore, on May 5 he did not report for induction, but to the contrary. Nor did he, then or after-wards, offer to report for induction at any future date.

Rather than report for induction, Schütz chose to rely on the claim that he was immune to the draft because there were no Negroes on his draft board. This defense has repeatedly been rejected. Clay v. United States, 5 Cir., 1968, 397 F.2d 901; Sellers v. McNamara, supra; DuVernay v. United States, 5 Cir., 1968, 394 F.2d 979, affirmed 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306, reh. denied 395 U.S. 917, 89 S.Ct. 1740, 23 L.Ed.2d 232 (1969); Greer v. United States, 5 Cir., 1967, 378 F.2d 931.

Nor could appellant refuse to report for induction on the claim that he had been called out of turn. Every registrant is required to report for induction as ordered even though he may have valid legal grounds for refusing to submit to induction, United States v. Irons, 6 Cir., 1966, 369 F.2d 557, 559; Nickerson v. United States, 10 Cir., 1968, 391 F.2d 760, 763, cert. denied, 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1366.

This appellant was convicted of failing to report for induction as ordered, not for refusing to be inducted after arrival at the induction center. Therefore, we do not discuss the cases which have dealt with the latter situation, other than to say that wilful refusal to report for induction is a separate offense. Upon such a refusal the Selective Service authorities are under no duty forcibly to convey a recalcitrant to the induction center in order that he may there be subjected to the procedures required for actual induction.

This conviction is fortified by abundant support in the evidence and the judgment is

Affirmed.