U.S. v. Atkins, 75--2754

• Citation: 528 F.2d 1352
• Decision Date: 22 March 1976
• Docket Number: No. 75--2754,75--2754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry Samuel ATKINS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1352

528 F.2d 1352

UNITED STATES of America, Plaintiff-Appellee, v. Henry Samuel ATKINS, Jr., Defendant-Appellant.

No. 75--2754.

United States Court of Appeals, Fifth Circuit.

March 22, 1976.

Rehearing and Rehearing En Banc

Denied April 21, 1976.

John H. Ruffin, Jr., Augusta, Ga., Fred H. Cohn, American Civil Liberties Union Foundation, New York City, for defendant-appellant.

R. Jackson B. Smith, Jr., U.S. Atty., Augusta, Ga., Robert W. Vayda, Atty., Criminal Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before WISDOM, COLEMAN and GEE, Circuit Judges.

COLEMAN, Circuit Judge.

Appellant Henry Samuel Atkins, Jr., a practicing attorney, appeals from his jury conviction for wilfully and knowingly failing to report for and submit to an Armed Forces physical examination in violation of 50 U.S.C. App. § 462. We affirm the judgment of the District Court.

From September, 1962 to June, 1966, Atkins was in undergraduate school and was classified by the Selective Service as II--S. After graduation from college, Atkins entered the University of Georgia Law School and was again classified II--S until he completed law school in the summer of 1969. On July 24, 1969, the appellant was reclassified I--A. ¹. Four days later, Atkins wrote the local Selective Service board indicating that he felt he had been erroneously classified and that he deserved a III--A Hardship deferment based on the fact that he had a ten month old child and pregnant wife who would be placed in extreme hardship were he to be inducted into the armed forces. Thereafter, Atkins submitted affidavits and letters from friends and relatives attesting to his entitlement to a hardship classification and requested a personal appearance before the board.

On August 4, 1969, the board acknowledged receipt of appellant's letters and advised him that he would be considered for a hardship deferment. On August 11, 1969, Atkins was ordered to report for a preinduction physical examination, but the examination was postponed when Atkins informed the board that he had moved from Augusta and was now working and living in Thomaston, Georgia. On October 9 Atkins made a personal appearance before the local board in Augusta in reference to his claim for a III--A hardship deferment. Following the personal appearance, the board voted to deny the appellant's claim for a hardship deferment giving the following reasons:

He claims extreme hardship. He has had a 2--S (not eligible for 3--A under Sec. 1622.30).

He supported his wife while in college. He also has the Soldiers & Sailors Act for his indebtness (sic) of school expense.

Wife & children can receive allotment.

The registrant has very well fixed families both he and his wife. The wife and children will not suffer a hardship.

Board members have personal knowledge of the family circumstances and feel that since both families are well able to support family (sic). Hardship deferment denied.

Upon being informed of the board's action, appellant filed a notice of appeal on October 17, 1969.

The local board at Thomaston, Georgia, had rescheduled appellant's preinduction physical for October 21, 1969, but appellant failed to appear, stating that he had to return to Augusta for an emergency. Appellant's physical was rescheduled for December 1, 1969, but again he failed to appear. Atkins had informed the board on November 29 that he would not be able to appear for his physical examination on December 1 since he had to be in Tallahassee, Florida, that week to attend a mandatory course for new admittees to the bar.

On February 6, 1970, the Appeal Board denied Atkins' appeal and he was notified of this action a few days later. On February 18, 1970, Atkins requested that his classification be reopened due to a change in his status, namely the emotional depression and anxiety his wife had suffered since giving birth to their second child.

Atkins was ordered to report for a physical examination to be held on March 5, 1970, but once again failed to appear. The fifth and final order to report for a preinduction physical was issued to the appellant on April 8, 1970, with his reporting date set for the 16th of April. The appellant never appeared and his indictment for this failure eventually followed. Atkins wrote the local board on April 13 again requesting that his classification be reopened and also seeking assurances that he would not be inducted when he submitted to a physical examination. The board replied by letter on April 17 that a registrant is not inducted on an Order to Report for Physical Examination and informed appellant that his request for a change of classification had not warranted reclassification. Atkins was directed to go immediately to the nearest local board and request transfer for examination and was admonished that failure to comply could lead to prosecutory action. Atkins wrote the board on April 20, 1970, requesting that any further action by the board be postponed until he had an opportunity to confer with his attorney. Atkins wrote the board again on April 30, again claiming entitlement to a III--A deferment and stating that he stood ready 'to litigate this matter either as the plaintiff in a suit for an injunction or defendant in an action brought by the federal government'. On September 18, 1972, the appellant was charged in a one count indictment for failing to report as ordered for an armed forces physical examination. Atkins had instituted a civil suit on March 15, 1971, seeking a declaratory judgment and a writ of mandamus to compel the local board to classify him III--A by reason of fatherhood. ² The civil action was held in abeyance while cases with the identical issue were pending before the United States Supreme Court ³ and the Fifth Circuit Court of Appeals. ⁴ The civil action was dismissed on May 18, 1973, and no appeal was taken. The government had concluded that the criminal and civil suits were so interwoven that the criminal action should be stayed pending the disposition of the civil action, consequently the appellant was not arraigned until June 15, 1973. One week later, appellant was granted a 30 day continuance to attempt to enlist in some branch of the Service as an alternative to prosecution. Atkins' efforts to enter military service during the continuance allowed by the Court were without success. However, the United States Attorney delayed further action in order to allow Atkins to join some branch of the armed forces since he had expressed a desire to pursue that course. Intermittent reports of Atkins' efforts were received by the U.S. Attorney, but this came to nothing. Finally, the U.S. Attorney notified Atkins that unless entry into some branch of the armed forces was accomplished by June 15, 1974, his case would be set for trial. Trial was then set for September 30, 1974. On September 26, just prior to the scheduled trial, a hearing was held on motions by the appellant to dismiss the indictment on grounds of the denial of a speedy trial. The District Judge denied the motion to dismiss but then stated that he was going to construe it as a motion for a continuance to allow the appellant the opportunity to participate in the newly established 'Presidential Clemency Program', if he so desired. Trial was finally had on May 15, 1975, and resulted in a jury verdict of guilty from which the instant appeal was taken.

As we construe the appellant's assignments of error, we are asked to decide five questions. First, is the defense of an improper classification of a registrant by a local selective service board allowable in a prosecution for failure to report for a physical? And if so, was the appellant improperly classified? Second, was the trial court's denial of discovery of defendant's statement to the FBI an abuse of discretion? Third, was the appellant denied his constitutional right to a speedy indictment and trial? Fourth, did the trial court err in giving a modified 'Allen charge'? Lastly, did the prosecutor make prejudicial remarks during his summation to the jury?

Is the Propriety of a Registrant's Classification a Proper Defense to a Charge of Failure to Report for a Physical Examination?

We are not here concerned with a failure to report for induction. Atkins was only charged with failing to report for and submit to a physical examination, and his conviction was for that offense only.

The appellant strongly urges that he was entitled to a III--A hardship classification and that the local board improperly classified him I--A. He argues that if a board commits a substantive or procedural error during the classification process at such time that, had the error not occurred, the registrant could not have been ordered for the physical, then such error operates as a defense to a charge of failing to report for a physical examination. This precise issue has never been decided by this Court. ⁵

In McKart v. United States, 1969, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194, the Supreme Court held that a registrant's failure to appeal his I--A classification and his failure to report for a preinduction physical examination did not bar his challenge to the validity of his classification as a defense to a criminal prosecution for refusal to submit to induction into the military. The government had argued that failing to report for a physical, thus giving the System a final chance to reject someone, should bar a challenge to the validity of a classification. The Court found this argument unpersuasive in cases involving a prosecution for refusal to submit to induction, but then went on to state:

(A) registrant is under a duty to comply with the order to report for a physical examination and may be criminally prosecuted for failure to comply. If the Government deems it important enough to the smooth functioning of the System to have unfit registrants weeded out at the...