490 F.2d 442 (5th Cir. 1974), 73-2258, United States v. Taylor

Docket Nº73-2258.
Citation490 F.2d 442
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Michael Flynn TAYLOR, Defendant-Appellant.
Case DateFebruary 27, 1974
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 442

490 F.2d 442 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Flynn TAYLOR, Defendant-Appellant.

No. 73-2258.

United States Court of Appeals, Fifth Circuit.

February 27, 1974

Page 443

M. C. Mykel, Atlanta, Ga., for defendant-appellant.

John w. Stokes, U.S. Atty., Stanley M. Baum, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge:

In this cause, which was tried to the district court without a jury upon a stipulated written record, Michael Flynn Taylor was convicted of failing to report for and to submit to induction into the Armed Forces of the United States, a duty imposed upon him by the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq., specifically in violation of 50 U.S.C. App.§ 462. On appeal he levels a broad-based attack against the judgment of the district court. We pretermit the resolution of all but two procedurally interrelated issues that necessitate reversal. 1 Taylor contends that his Local Board (1) failed to accord him the right to a personal appearance after reopening and reconsidering his classification and (2) prejudiced his Selective Service System appeal rights by advising the Appeal Board ex parte of its view of the facts Taylor had submitted

Page 444

in support of his application for a III-A (parent-extreme hardship) deferment. 2

Taylor registered with Local Board No. 62 in Atlants, Georgia on October 29, 1963. He continuously maintained a II-S (student) deferment 3 until August 13, 1968, at which time he was reclassified I-A (available for military service). 4 On September 13, 1968 Taylor notified his Local Board by letter that he would like to 'appeal' his I-A classification 'on the basis of extreme hardship.' In addition he advised the Board that he was married, that his wife was expecting a child, and that he intended to become a permanent resident of New York City, where he was then employed and domiciled. He stated that the distance and expense involved would operate to make a personal appearance before the Board in Atlanta 'a great burden if not an impossibility.' Finally, he requested that his Selective Service records be transferred to a local board in New York City, or if this were not possible, that he be permitted to submit full information in support of his request for reclassification. In reply the Board advised Taylor that he would always be registered with Local Board No. 62, and forwarded to him a standard dependency questionnaire form.

Taylor completed and returned the questionnaire on October 11. It set out that he was then the sole support of his wife and six-day old daughter, that his wife had been ill during her pregnancy and her present condition did not permit her to work, and that his earnings from a clerical job amounted to 130 dollars per week. The Local Board deferred consideration of Taylor's claim for reclassification pending the results of his armed forces physical examination, which was not completed until July, 1969. The examination demonstrated Taylor's physical acceptability for military service. Shortly thereafter, on August 13, 1969, Local Board No. 62 dispatched a letter to Taylor in New York City, which requested that he appear personally before it in Atlanta on August 19 with regard to his hardship claim and that he complete and return a current dependency questionnaire or, if unable to attend, that he notify the Board at once. 5 Taylor failed to appear at the appointed time. The Local Board refused to grant his application for a III-A deferment and renewed his I-A classification. The following day, August 20, 1969, the Board wrote Taylor as follows:

RE: HARDSHIP CLAIM This is to advise you that the Board Members reviewed your file on August 19, 1969 and denied you a hardship deferment. Since you have already placed an appeal in your file, the board is forwarding your file on to the Appeal Board this date. You will be mailed an SSS Form 110, Notice of Classification, when your file is returned to this office advising you of their action.

At this time the Board also forwarded Taylor's file to the state headquarters of the Selective Service System, which in turn transmitted it to the Appeal Board serving the New York City area. Without notifying or advising Taylor of its action, Local Board No. 62 also included the following statement in his file:

TO: APPEAL BOARD RE: TAYLOR, Michael Flynn

Page 445

Registrant is appealing due to hardship in family. He is married with one child, employed with Housing and Development Administration in New York-- makes $130.00 per week. It is the opinion of the Board Members that registrant's child is now nine months old, and wife could seek employment. They feel that an extreme treme hardship does not exist in family.

The New York City Appeal Board retained...

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2 practice notes
  • 528 F.2d 1352 (5th Cir. 1976), 75--2754, United States v. Atkins
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 22 mars 1976
    ...offense from that of refusing to be inducted after arrival at the induction center. See also United States v. Taylor, 5 Cir. 1974, 490 F.2d 442, 443 n. 1. [6] In United States v. Heywood, supra, the Court made it clear that its opinion in United States v. Hayden, 9 Cir. 1971, 445 F.2d 1365 ......
  • 510 F.2d 570 (5th Cir. 1975), 74--2781, United States v. Grier
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 28 mars 1975
    ...important procedural right; its denial will invalidate a conviction under 50 U.S.C. App. § 462. United States v. Taylor, 5th Cir., 1974, 490 F.2d 442, 445; United States v. Bagley, 5th Cir., 1970, 436 F.2d 55, 57. See Mulloy Page 575 United States, 1970, 398 U.S. 410, 416, 90 S.Ct. 1766, 26......
2 cases
  • 528 F.2d 1352 (5th Cir. 1976), 75--2754, United States v. Atkins
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 22 mars 1976
    ...offense from that of refusing to be inducted after arrival at the induction center. See also United States v. Taylor, 5 Cir. 1974, 490 F.2d 442, 443 n. 1. [6] In United States v. Heywood, supra, the Court made it clear that its opinion in United States v. Hayden, 9 Cir. 1971, 445 F.2d 1365 ......
  • 510 F.2d 570 (5th Cir. 1975), 74--2781, United States v. Grier
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 28 mars 1975
    ...important procedural right; its denial will invalidate a conviction under 50 U.S.C. App. § 462. United States v. Taylor, 5th Cir., 1974, 490 F.2d 442, 445; United States v. Bagley, 5th Cir., 1970, 436 F.2d 55, 57. See Mulloy Page 575 United States, 1970, 398 U.S. 410, 416, 90 S.Ct. 1766, 26......