Simmons v. United States

Decision Date10 March 1969
Docket NumberNo. 25371.,25371.
PartiesMichael Waldo SIMMONS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

406 F.2d 456 (1969)

Michael Waldo SIMMONS, Appellant,
UNITED STATES of America, Appellee.

No. 25371.

United States Court of Appeals Fifth Circuit.

January 9, 1969.

Rehearing and Rehearing Denied March 10, 1969.

406 F.2d 457

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 WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge.

Rehearing and Rehearing En Banc Denied March 10, 1969.

406 F.2d 458

AINSWORTH, Circuit Judge:

Appellant was convicted for violation of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a),1 sometimes hereinafter referred to as "the Act," in that he failed to comply with an order of his local selective service board to report for and submit to induction into the armed forces of the United States.2 Upon consideration of the numerous objections made by the appellant, we affirm the verdict rendered in the district court.

The appellant's selective service file reveals that he was reclassified I-A on November 4, 1965, by his local draft board in Philadelphia, Pennsylvania, and subsequently ordered to report for a physical examination to be performed on December 14, 1965. On December 6, 1965, the appellant filed a "Notice of Change of Address," listing Atlanta, Georgia, as his new place of residence, but he did not request a transfer to a Georgia selective service board. Thereafter, there occurred an incredible series of events in which the appellant continually flouted orders to report for physical examination on no less than seven occasions. The appellant failed to report in Philadelphia on December 14, 1965, February 9, 1966, and March 16, 1966. On March 15, 1966, he requested a transfer to an Atlanta draft board, for purposes of a physical examination, and on March 24, 1966, this transfer was granted. Subsequently, appellant failed to report for physical examinations in Atlanta on April 8, 1966, May 6, 1966, and May 20, 1966. Instead of reporting on May 20, 1966, the appellant sent a telegram to the Atlanta draft board from Philadelphia, informing them that he was presently in Philadelphia and that he would communicate with the Philadelphia board. Subsequently, the Philadelphia board ordered him to report on May 25, 1966, for a physical examination. Appellant arrived late for this examination, and it could not be performed at that time. Finally, the appellant was physically examined in Philadelphia on June 3, 1966, and later ordered to report for induction. A request for transfer to the Atlanta board for purposes of induction was granted, and the appellant was ordered to report at Atlanta to be inducted on August 18, 1966.

The events of August 18, 1966, are disputed and confused. The appellant arrived at the Induction Center in Atlanta before the hour designated for reporting, and joined a group picketing the Center, presumably as a protest against the war in Vietnam. At approximately the appointed hour the appellant ceased picketing the Center, and attempted to gain admission to the Induction Center. Here, however, the appellant's version of what transpired greatly differs from the testimony of the Government's witnesses. The appellant testified that he informed the military personnel at the door that he

406 F.2d 459
was presenting himself for induction. Conversely, Sergeant Gilliam testified that the appellant told him that he wished to speak to someone in command about a water-throwing incident at the Induction Center on the previous day, and that the appellant did not present any induction papers or inform him that he was there for the purpose of being inducted. As a consequence, the appellant was not admitted; rather, he resumed picketing, again attempted to gain admission on three or four separate occasions, and upon each denial, he rejoined his comrades on the picket line. Thus, to believe the appellant, the events at the Induction Center formed a farcical and incongruous scenario in which the appellant played both the willing inductee and the spirited protester

However strenuous appellant's efforts to enter the Induction Center, these efforts were ended when he was arrested by police officers, charged with disobeying an officer, and sentenced to three months in the Fulton County Jail. He was released on October 14, 1966, and according to the appellant's testimony, he reported to the Induction Center on the next business day, but was again denied admission. Thereafter, on May 16, 1967, the appellant was indicted for violation of the Universal Military Training and Service Act.


The appellant makes a broad-based attack on the constitutionality of the Act, asserting that compulsory service can be justified only by extreme necessity and that the power of Congress to raise and support armies in peacetime is subject to the Bill of Rights. 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. United States v. Butler, 6 Cir., 1968, 389 F.2d 172; Bertelsen v. Cooney, 5 Cir., 1954, 213 F.2d 275. "The Congressional power to provide for 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." United States v. Hogans, 2 Cir., 1966, 369 F.2d 359, 360 (per curiam). See also United States v. Henderson, 7 Cir., 1950, 180 F. 2d 711; Muhammad Ali v. Connally, S.D. Tex., 1967, 266 F.Supp. 345. See Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918); United States v. Bolton, 2 Cir., 1951, 192 F.2d 805 (per curiam). While it is true that the war power, and presumably the power to raise armies in peacetime, is subject to constitutional limitations, Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194 (1919) (Mr. Justice Brandeis),3 considerations of national defense may render lawful what would be unlawful in a different context. See Toyosaburo Korematsu v. United States, 323 U.S. 214, 224-225, 65 S.Ct. 193, 198, 89 L.Ed. 194 (1944) (Mr. Justice Frankfurter, concurring).4 Thus, on this basis, we find no constitutional infirmity in the Universal Military Training and Service Act. Etcheverry v. United States, 9 Cir., 1963, 320 F.2d 873, 874; United States v. Richmond, C.D.Cal., 1967, 274 F.Supp. 43; Arver v. United States, supra. However, appellant mounts one further constitutional assault on the Act. He alleges that the existence of student deferments is a discriminatory and arbitrary classification unrelated to the purposes of the Act. While obviously such deferments may have the collateral effect of discriminating

406 F.2d 460
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. Compare United States v. Holmes, 7 Cir., 1967, 387 F.2d 781. See Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Glona v. American Guarantee & Liability Insurance Co., 5 Cir., 1967, 379 F.2d 545; Gruenwald v. Gardner, 2 Cir., 1968, 390 F.2d 591


The appellant urges that the United States' participation in the war in Vietnam is in violation of various treaties, Articles 2(4)5 and 33(1)6 of the United Nations Charter, and the norms of international behavior, and that hence his induction would force him to become a party to war "crimes." Initially, "It is difficult to think of an area less suited for judicial action" than the conduct of the foreign policy of this nation. Luftig v. McNamara, 1967, 126 U.S.App. D.C. 4, 373 F.2d 664, 665-666. We are unable to find any constitutional authority for such interference by the judiciary in matters charged exclusively to the Congress and the Executive. Luftig v. McNamara, supra.7 See generally Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (Mr. Justice Harlan). Moreover, the appellant assumes that induction into the armed forces and participation in the Vietnam War are synonymous, and this is clearly not the case. Judge Medina of the Second Circuit in United States v. Mitchell, 2 Cir., 1966, 369 F.2d 323, 324, cogently articulated this difference and its impact on one asserting the war "crimes" argument:

"Regardless of the proof that appellant might present to demonstrate the correlation between the Selective Service and our nation\'s efforts in Vietnam, as a matter of law the congressional power `to raise and support armies\' and `to provide and maintain a navy\' is a matter quite distinct from the use which the Executive makes of those who have been found qualified and who have been inducted into the Armed Forces. Whatever action the President may order, or the Congress sanction, cannot impair this constitutional power of the Congress.
"Thus we need not consider whether the substantive issues raised by appellant can ever be appropriate for judicial determination. See United States v. Hogans 1966 2 Cir., 369 F.2d 359 * * *."

See also United States v. Bolton, 2 Cir., 1951, 192 F.2d 805 (per curiam).


The appellant alleges that Negroes, women, members of his age group, and persons in lower economic brackets were deliberately excluded from the local draft boards and appeals boards processing his case, and that hence his prosecution should be "abated" pending reform of the Selective Service System. This argument is foreclosed by the decision of this court in Clay v. United States, 5 Cir., 1968, 397 F.2d 901, 911:

"No court has held, so far as we can determine, nor do we here, that a Negro registrant for selective service is
406 F.2d 461
entitled to be classified and

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