Kemp v. United States

• Decision Date: 26 November 1969
• Docket Number: No. 25675.,25675.
• Citation: 415 F.2d 1185
• Parties: Donathan Garvin KEMP, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 1185 (1969)

Donathan Garvin KEMP, Appellant, v. UNITED STATES of America, Appellee.

No. 25675.

United States Court of Appeals Fifth Circuit.

September 15, 1969.

Rehearing Denied November 26, 1969.

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for appellant.

Charles L. Goodson, U. S. Atty., Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, THORNBERRY, Circuit Judge, and TAYLOR, District Judge.

WILLIAM M. TAYLOR, Jr., District Judge:

Appellant was convicted in the United States District Court for the Northern District of Georgia for violation of the Universal Military Training & Service Act, 50 U.S.C. App. § 462, for failure to comply with an order of his local Selective Service Board to submit to induction into the Armed Forces of the United States. His refusal to so submit was predicated on his contention that he was a conscientious objector. His several contentions for refusal are found to be without merit and accordingly we affirm.

In the trial of this case the government relied upon the contents of Appellant's Selective Service file. This file contains the report of Captain Jon D. Kindred of the Armed Forces Examining and Entrance Station, Atlanta, Georgia. This report shows Appellant's refusal to submit to induction on November 14, 1966, registrant stating that he was a Muslim and it was against his belief and religion to serve in the Armed Forces. Appellant contends that the report of Captain Kindred was a violation of his right of confrontation under the 6th Amendment to the United States Constitution. The report by Captain Kindred was required by Army Reg. 601-270, ¶ 40(c). Such report was part of the Selective Service file and the author (Captain Kindred) had personal knowledge of the event on which he reports. His personal knowledge is not challenged. The file was admissible in evidence as a public document. 28 U.S.C. § 1733. In Yaich v. United States (9 Cir. 1960), 283 F.2d 613, the Court said:

"As a general rule in prosecutions for violation of the Universal Military Training & Service Act, the selective service file of the delinquent registrant is admissible into evidence as a public document under the provisions of Title 28 U.S.C.A. 1733. * * * The mere fact that a document qualifies as a public record, however, does not ipso facto overcome the hearsay objection unless the document relates to an event to which the author of the document could himself testify."

The Trial Court did not err in denying the motion for judgment of acquittal predicated on this ground.

Appellant's next contention urges that the court below erred in overruling his motion for judgment of acquittal on the ground that the evidence was insufficient to authorize a verdict and judgment for the government. After examining the record we feel the evidence was sufficient to support the conviction. The Selective Service file was admitted and contains evidence upon which reasonable minds could conclude that the Appellant was guilty of the offense charged. Appellant's motion for acquittal was filed in court several days after the verdict was returned. It had not been urged at the close of all the evidence. Even if there was a question as to the sufficiency of the evidence of identification of Appellant, such question was not properly preserved. In Hall v. United States (5th Cir. 1968), 403 F.2d 649, involving theft of goods in interstate commerce where Appellant raised the question of sufficiency of evidence, this Court said:

"In any event, the question was not preserved for appellate review by renewal of Appellant\'s motion for judgment of acquittal at the close of all the evidence."

Had such question been timely raised before the jury was discharged there would have been an opportunity for the Trial Court to permit a reopening of the case for correction of such error if defendant was sincere in such contention.

Appellant also contends:

(1) the Universal Military Training & Service Act is unconstitutional;

(2) that there was racial and other discrimination in the composition of the Selective Service Board;

(3) that there was racial discrimination in the composition of the jury; and

(4) that induction would compel Appellant to participate in the commission of crimes against international peace and security and the commission of war crimes.

These contentions were answered by this Court in Simmons v. United States (5 Cir. 1969), 406 F.2d 456. We still so hold.

As to contention (1) the Simmons case holds:

"That this court is not competent or empowered to sit as a super-executive authority to review the decisions of the Executive and Legislative branches of government in regard to the necessity, method of selection, and composition of our defense forces is obvious and needs no further discussion (cases cited). `The draft does not depend upon the existence of a war or national emergency, but stems also from the Constitutional power to raise and support armies and to provide and maintain a navy.\' (cases cited) * * * While it is true that the war power, and presumably the power to raise armies in peacetime, is subject to constitutional limitations, considerations of national defense may render lawful what would be unlawful in a different context."

It also states concerning the contention of discrimination because of student deferments:

"While obviously such deferments may have the collateral effect of discrimination against those who are not wealthy enough or bright enough to attend college, this classification is reasonable in light of the public policy in favor of an educated population (cases cited)."

Contention (2) was answered in the Simmons case by a quote from an earlier decision by this Court. Clay v. United States (5 Cir. 1968), 397 F.2d 901. The judgment in the Clay case was summarily vacated by the United States Supreme Court on the basis of wiretapping. We, however, still follow the holding in the following quote because it is on other grounds.

"No court has held, so far as we can determine, nor do we here, that a Negro registrant for selective service is entitled to be classified and inducted by a selective service board composed of a percentage of Negro members which the Negro population bears to the total population, or that a board lacks jurisdiction of a registrant unless so constituted. * * * a draft board system which does not have a sufficiently representative number of Negro members is comparable to a malapportioned legislature. The acts of such a legislature are not invalid and the laws which it passes are not null and void."

As was shown in the Simmons case, this same reasoning applies to the other classes which it is alleged have been discriminated against.

The heart of Appellant's contention (3) is aimed at the source from which jurors are selected. Appellant is urging that exclusive use of the voter registration lists results in the exclusion of an identifiable racial group, which would otherwise have been considered but for the fact that the jury selection process began and ended with a source from which members of his group had been excluded. The jury wheel consisted of 4,563 names, of which 725 were Negroes or 15.77% of the total number of jurors. The same percentages existed in the Simmons case and this court held then:

"* * * neither the jury wheel nor the venire need precisely conform to the proportionate strength of each identifiable group in the total population. * * * we find that the underrepresentation of Negroes in the jury wheel in comparison with their share of the total population was not of such magnitude as to warrant overturning the appellant\'s conviction." (Se

...