U.S. v. Grier

Decision Date28 March 1975
Docket NumberNo. 74--2781,74--2781
Citation510 F.2d 570
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Clifford GRIER, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

John R. Myer, Atlanta, Ga., for defendant-appellant.

John L. Briggs, U.S. Atty., Howard T. Snyder, Ernst D. Mueller, John Daley, Jr., Asst. U.S. Attys., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.

WISDOM, Circuit Judge:

This is an appeal in a selective service case from a conviction, in a trial before the court, without a jury, for the defendant's failing to submit to induction. 50 U.S.C. App. § 462. Because of procedural defects in the local board's handling of the reclassification of the defendant from II--S (student deferment) to I--A (available for induction), we reverse his conviction, and remand the case to the district court with instruction to dismiss the indictment.

Clifford Grier registered with Local Board 163 in Sylvester, Worth County, Georgia. The local board classified him II--S when he enrolled in Morehouse College sent SSS Form 109 to the local board, stating that Grier was a full-time student making satisfactory progress toward graduation in June 1971. In May 1970 he began working 40 hours a week at National Biscuit Company, while remaining a full-time student. In November 1970 Morehouse College sent another SSS Form 109, again certifying that Grier was a full-time student making satisfactory progress towards graduation. The projected date of his graduation, however, was moved back to June 1972. On November 16, 1970, the local board reclassified Grier I--A, giving no reasons, but apparently because of his having fallen behind in his studies. The next day the board sent Grier his notice of reclassification (SSS Form 110), along with SSS Form 217, Advice of Right to Personal Appearance and Appeal. 1 Twenty days later, on December 7, 1970, Grier sent a letter to the board, requesting an appeal and an 'appearance before the appeal board with jurisdiction over the Atlanta area'. 2 The board never answered Grier's letter. Instead it treated his letter only as a request for an appeal to the State Appeal Board. Although Grier had a right to a personal appearance before his local board in Sylvester, 32 C.F.R. § 1624, he had no such right before the State Appeal Board. 32 C.F.R. § 1626. The appeal board voted unanimously to affirm the classification, apparently without considering Grier's muddled understanding of his rights. 3

Grier was married on January 23, 1971; he informed the local board of his changed marital status in February 1971; in June of that year his child was born. Grier received a notice and order to report for induction on March 24, 1971. He reported the next day, but refused to submit to induction. He was indicted on September 15, 1971 and was arraigned on March 1, 1972. Counsel was appointed to represent him. He entered a plea of not guilty. Later, Grier changed his plea to nolo contendere, and on October 16, 1972, he was sentenced to the custody of the Attorney General for 28 months. He surrendered and began serving the sentence.

On October 26, 1972, Grier, represented by a new attorney, filed a 'Motion for a New Trial' asserting the ineffectiveness of his court-appointed counsel. On October 27, 1972, a hearing was held on this motion. At that hearing, Grier was allowed to file a motion to set aside the conviction, vacate the sentence, withdraw his plea, and request a new trial. The court treated this motion as a petition for writ of habeas corpus 'in the light most beneficial to the defendant.' Under Fed.R.Crim.P. 32(d) the district court set aside the conviction and permitted Grier to withdraw his plea of nolo contendere. The court also ordered Grier's release from custody.

A new trial was held on May 11, 1973. He was again found guilty in a non-jury trial, and sentenced this time to eighteen months in the custody of the Attorney General, with credit for the three and a half months previously served. The court allowed Grier to continue on bond pending this appeal.

I

The issues in this case arise out of Section 6(h)(1) of the Selective Service Act of 1967, 50 U.S.C. App. § 456(h)(1), providing for student deferments. 4 The President promulgated 32 C.F.R. § 1622.25(c) under that Section of the Act providing for a 'parity requirement'; that is, if a student each year completes twenty-five percent of his work toward a four-year degree he shall be '(deemed to be) 'satisfactorily pursuing a full time course of study instruction' . . .'. 5

Grier argues (1) that this regulation is invalid because it adds a factor not authorized by the Act and therefore his classification had no basis in fact; (2) that he was denied the important administrative and due process right to a hearing by the local board's failure to correct his misunderstanding of his rights; and (3) that the appeal board denied him due process of law and his statutory right to de novo review by its summary proceeding.

The trial court held that the certificate from Morehouse College that he had fallen behind a year provided a basis in fact for his classification--applying 'objective criteria' of the Regulations. 6 The district court ruled that

'The text of the letter clearly indicates that defendant was seeking an appeal of his reclassification and a personal appearance before the Appeal Board. He had been advised by the SSS Form 217 on November 17, 1970 of the alternative of requesting a personal appearance before the local board or an appeal. There is nothing in defendant's December 7 letter that would clearly suggest a misunderstanding of these alternatives. In a case such as this the failure of a registrant to request a local board appearance might well be expected. For here the registrant had clearly failed to meet the objective criteria necessary to qualify for a student deferment. This is not a conscientous objector case, where the registrant's sincerity and good faith are an issue and the local board might expect him to urge his position in person.'

The court also concluded that evidence that the Appeal Board accorded de novo review to one hundred and nine cases in three hours was 'an insufficient showing to rebut the presumption of regularity which attends such government functions . . .'.

Initially, we note that selective service registrants are accorded certain statutory and administrative rights. This Court has held that 'all procedural requirements (must) be strictly and faithfully followed' for a draft evasion conviction to be upheld. Olvera v. United States, 5 Cir., 1955, 223 F.2d 880, 882. Strict judicial supervision of the Selective Service System's procedures is necessary, because the Act and regulations come perilously close to the minimum requirements of due process. See Note, Judicial Review of Selective Service Classifications, 56 Va.L.Rev. 1288, 1312--13 (1973).

II

In Breen v. Selective Service Local Board No. 16, 1970, 396 U.S. 460, 464--65, 90 S.Ct. 661, 24 L.Ed.2d 653 the Supreme Court pointed out that 'there is nothing of the language of the Act itself that indicates a congressional desire to allow the President to add to or subtract from the factors specified in this statute for determining when students would be deferred.' Breen invalidated a regulation, promulgated under Section 6(h)(1) of the Act, providing for punitive reclassification of deferred students. Grier asserts that the President has gone beyond the authority of Section 6(h)(1) by specifying a mechanical formula for the deferment of 'persons satisfactorily pursuing a full-time course of instruction'. We agree with the view of the United States Attorney and that of the Court of Appeals for the Fourth Circuit that the regulation is valid because it is merely a working definition, and that 'a convenient administrative presumption is established' by Section 1622.25(c). Coleman v. Tolson, 4th Cir., 1970, 435 F.2d 1062.

The Court in Coleman v. Tolson held that a student deferment depends on the facts in each case. 7 The United States asserts that in Grier's case the local board did not apply the regulation in the inflexible manner condemned in Coleman v. Tolson. We cannot say with certainty that it did; a basis in fact may well exist for Grier's classification. Nonetheless, it is precisely because the determination of a student deferment must be made on a case-by-case basis that a hearing is so important. All registrants have the absolute right to a personal appearance. The Regulations state that 'Every registrant after his classification is determined by the local board . . . shall have an opportunity to appear in person before the local board'. 32 C.F.R. § 1624.1(a). At this hearing, 'the registrant may present evidence, including witnesses, may discuss his classification, may point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file to which he believes it has not given sufficient weight. The registrant may present such further information as he believes will assist the local board in determining his proper classification'. Id. § 1624.4(b). Grier never had this opportunity.

III

We have frequently stated that a personal appearance before the draft board is an 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 v United States, 1970, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362. The right to an appeal does not cure local board errors in denying a personal appearance. Mugaro v. Cassidy, 5th Cir., 1970, 426 F.2d 137, 142.

The government argues that Grier failed to request an appearance before the local board. But it is clear that Grier requested some...

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