United States v. Brooks

• Decision Date: 04 September 1969
• Docket Number: No. 18679.,18679.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred Harris BROOKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

415 F.2d 502 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Fred Harris BROOKS, Defendant-Appellant.

No. 18679.

United States Court of Appeals Sixth Circuit.

September 4, 1969.

Reber F. Boult, Jr. (Court Appointed), Atlanta, Ga., for appellant; Charles Morgan, Jr., Atlanta, Ga., Richard Bellman, Robert Carter, New York City, Howard Moore, Jr., Atlanta, Ga., Whitworth Stokes, Jr., Nashville, Tenn., on brief; Melvin Wulf, New York City, of counsel.

Carlton H. Petway, Asst. U. S. Atty., Nashville, Tenn., for appellee; Gilbert S. Merritt, Jr., U. S. Atty., Nashville, Tenn., on brief.

Before O'SULLIVAN, PECK and COMBS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Fred Harris Brooks was convicted upon jury trial for refusal to submit to induction into the army, in violation of Section 462, Title 50, United States Code App. On March 15, 1968, he was sentenced to imprisonment for a term of four years. Defendant has remained at liberty pending determination of this appeal to us.

On April 30, 1964, Brooks registered with Selective Service System Local Board No. 20 at Nashville, Tennessee. He was classified II-S — deferred as a student until November 1, 1964. On December 9, 1964, he was classified I-A, but on May 7, 1965, was again deferred as a student in classification II-S. On November 9, 1966, he was reclassified I-A, but on February 6, 1967, he regained his II-S classification. On August 23, 1967, Brooks received his final classification of I-A. This reclassification was the product of the Board's determination that Brooks was not then "satisfactorily pursuing a full time course of instruction," a condition precedent to entitlement of a student deferment, as required by Selective Service System regulation, 32 C.F.R. § 1622.25 (d).

The original information provided by Brooks to his local board represented that he would obtain his academic degree on June 1, 1967. However, in June of 1967 Brooks replied to the board's Current Information Questionnaire that he had then completed only three and one-half years of college. He did not indicate when he expected to graduate. In July, 1967, a student certificate furnished by Tennessee A & I State University advised that at that time Brooks had completed "his third college year." This information, as against the earlier representation that Brooks would receive his academic degree on June 1, 1967, led the Board to the conclusion that Brooks was not making the satisfactory progress in college needed to warrant continuance of his II-S student deferment. Brooks was given notice of the August 23, 1967, reclassification to I-A with advice of his right to appeal and the time for taking an appeal.

Brooks took no appeal from this final I-A classification and on October 27, 1967, he was ordered to report for induction on November 16, 1967. On October 31 Brooks obtained SSS Form 150 — application for conscientious objector exemption — and thereafter delivered it unsigned to the Board. On November 15, 1967, the Board again reviewed Brooks' file, concluding as follows:

"Following receipt of Form 150, the local board reconsidered the case at the board meeting Nov. 15, 1967. They did not reopen under 1625.2 SSR because the board did not find there had been a change in registrant\'s status resulting from circumstances over which the registrant had no control."

Brooks was advised of this action and that his request for reopening of his case would not be granted. Brooks does not claim that he was entitled to conscientious objector status. On November 16, he reported to the induction center but refused to be inducted. He was thereafter tried to a jury in the District Court for the Middle District of Tennessee and was convicted.

At the conclusion of trial District Judge William E. Miller filed a memorandum opinion which, together with pretrial orders, considers and disposes of the thirteen "Issues Presented for Review" on this appeal. We attach Judge Miller's memorandum as an appendix hereto. We feel constrained, however, to supplement it because of the vigor of the attack on it by appellant's counsel. We discuss the following:

1. Composition of the grand and petit juries.

Upon a bare and conclusional assertion that the system used to select grand and petit juries in the Middle District of Tennessee constituted a systematic exclusion of "minority groups" from juries, defendant, a Negro, requested that sub-poenaes be issued as a prelude to investigating the procedures employed in the Middle District of Tennessee. Appellant's counsel further charged that the key man system of selecting juries, presumably then used in the Middle District of Tennessee, was unconstitutional.

It should be first observed that there were seven Negroes on the grand jury which indicted Brooks. As to the practice of jury selection generally, the District Judge observed:

"As a matter of fact, speaking on racial grounds at this juncture, we have Negroes regularly and in sizeable numbers who serve not only on our grand juries, but on our petit juries as well, and as I say, all courts are sensitive to this problem in this day and time, and that is the reason why I think that I am thoroughly familiar with what is going on in this district."

Like assertions and charges have so recently been considered and found without merit by this Court that we need not here repeat our relevant views. See United States v. Hoffa, 349 F.2d 20, 27-33 (6th Cir. 1965), aff'd 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

2. Composition of Local Board No. 20.

a) Appellant claims that there exists nationally and in Tennessee a systematic exclusion of Negroes from membership on Selective Service Boards and that such situation "provides a defense to a Negro's prosecution for failure to submit to induction." The fact that one of the five members of Nashville's Local Board No. 20 was a Negro refutes this claim as a matter of fact. Aside from the factual situation in the case at bar, this general subject was considered by the Fifth Circuit in Clay v. United States, 397 F.2d 901, 909-911 (5th Cir. 1968), remanded on other grounds, sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1164, 22 L.Ed.2d 297 (1969). We agree with that decision which held that the composition of each draft board did not have to reflect the racial balance of the community between whites and blacks and that there was not a national purpose to accomplish the charged discrimination.

b) It was stipulated that at the time of trial — March of 1968 — only two of the five members of Local Board No. 20 resided within its jurisdictional boundaries and further that "Mr. Norman D. Baker, Mr. Henry A. McClaron and Mr. Walter E. Gasser, deceased, Members of * * * Board Number 20 * * * reside outside the jurisdictional boundaries of Local Board Number 20." Whether this was the composition of Brooks' draft board when his classification was considered is not clear; neither is it clear how you determine where a deceased person resides.

Whatever factual situation was thereby disclosed, the stipulation was offered to support a claim that the Board which ordered Brooks' induction was invalidly composed because of failure to comply with 32 C.F.R. § 1604.52(c) which provides:

"The members of local boards shall be citizens of the United States who shall be residents of a county in which their local board has jurisdiction and who shall also, if at all practicable, be residents of the area in which their local board has jurisdiction." (Emphasis supplied.)

No evidence was taken as to whether it was "at all practicable" to have all members of the board reside in the area in which the local board had jurisdiction. No reliance was put upon this situation as a ground for appeal from Brooks' I-A classification. There was no such appeal. The District Judge ruled on the point as follows:

"The Court is of the opinion that defendant is precluded from raising this defense for failure to exhaust his administrative remedies."

We agree, and consider that such ruling is supported by DuVernay v. United States, 394 F.2d 979, 981 (5th Cir. 1968), affirmed by an equally divided Supreme Court, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969).

We consider also that the action of Local Board 20 cannot be here challenged on the ground of the lack of proper residential qualifications of some of its members. It was in all events a de facto board whose action is not subject to this collateral attack. The holding of the Fifth Circuit in Clay v. United States, supra, 397 F.2d at 911, supports this general view.

"The Government argues — and we agree — that 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. The acts of a malapportioned legislature or local or county commission or board are acts of a de facto political authority and valid despite their failure to be apportioned in accordance with Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968)."

See also, Ex parte Ward, 173 U.S. 452, 453, 19 S.Ct. 459, 43 L.Ed. 765 (1899); Jessen v. United States, 242 F.2d 213 (10th Cir. 1957); United States v. Richmond, 274 F.Supp. 43, 61 (C.D.Cal.1967).

3. Was Brooks entitled to a student deferment?

Brooks' only basis for avoiding a I-A classification was his claim to II-S deferment as a student. 32 C.F.R. § 1622.25 provides as follows:

"(a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning, such deferment to continue until such registrant completes the requirement for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction,

...