Fleming v. United States
Decision Date | 10 February 1969 |
Docket Number | No. 25957.,25957. |
Citation | 406 F.2d 1247 |
Parties | William Clyde FLEMING, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Jack Floyd, Gadsden, Ala., for appellant.
Macon L. Weaver, U. S. Atty., R. Macey Taylor, Melton L. Alexander, Asst. U. S. Attys., for appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
William Clyde Fleming appeals from his conviction for failure to report for induction into the Armed Forces in violation of 50 U.S.C.A. App. § 462. We have carefully studied the briefs and record, and have determined that this appeal is appropriate for summary disposition without oral argument. Pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, the Clerk of this Court has been directed to put this case on the summary calendar and to notify the parties in writing.1
On the basis of the briefs and record, we proceed to the merits of the case. Fleming argues that the district court erred in charging the jury that the only question for the jury's consideration was whether or not Fleming unlawfully, wilfully and knowingly failed to report for induction. The district court further charged the jury that they were not to consider the question of whether Fleming's local board correctly classified him "I-A: Available for Military Service." We hold that the district court's charge was proper under the circumstances of this case. Fleming waived his right to challenge the correctness of his classification when he failed to exhaust his administrative remedies by appealing his classification. In DuVernay v. United States, 5 Cir. 1968, 394 F.2d 979, 980-981, we read:
See also Campbell v. United States, 5 Cir. 1968, 396 F.2d 1; United States v. McNeil, 4 Cir. 1968, 401 F.2d 527.
Fleming also contends that he could not have knowingly and intelligently waived his administrative remedies within the Selective Service System without the advice of counsel. This argument is without merit. Our decision logically follows from the numerous holdings that a registrant has no right to be represented by counsel when he appears before his local board. See, e. g., Merritt v. United States, 5 Cir. 1968, 401 F.2d 768, 769; Capson v. United States, 10 Cir. 1967, 376 F.2d 814, cert. denied, 1967, 389 U.S. 901, 88 S.Ct. 223, 19 L.Ed. 2d 224.
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