United States v. King

• Citation: 455 F.2d 345
• Decision Date: 02 February 1972
• Docket Number: No. 71-1224.,71-1224.
• Parties: UNITED STATES of America, Appellee, v. Wayne Douglas KING, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

455 F.2d 345 (1972)

UNITED STATES of America, Appellee, v. Wayne Douglas KING, Defendant-Appellant.

No. 71-1224.

United States Court of Appeals, First Circuit.

Heard January 4, 1972.

Decided February 2, 1972.

COPYRIGHT MATERIAL OMITTED

Gerald J. Billow, Cambridge, Mass., by appointment of the Court, with whom Remcho, Billow & Haroz, Michael J. Haroz, Lawrence E. Katz, and Bernard Nevas, Cambridge, Mass., were on brief, for appellant.

Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellant Wayne King was convicted in a jury trial of refusing to report for and submit to induction in violation of 50 U.S.C. App. § 462(a). On appeal, he asserts that he was entitled to acquittal because the army failed to follow its regulations applying to the conduct of his pre-induction physical examination or because the clerk of his local board failed to bring to the attention of the members of the board certain facts which he alleges might have warranted a physical deferment. Alternatively, he contends that a new trial must be granted on any of the three grounds that evidence as to his conscientious objection to war was improperly excluded, that the court erred in instructing the jury that receipt of a notice of classification must conclusively be presumed from its mailing, and that certain testimonial evidence as to order of call was improperly admitted.

PHYSICAL EXAMINATION

King held a II-S deferment as a student at Westfield State College when, on April 15, 1968, his local board received notification from Westfield that he had withdrawn. Having been reclassified I-A on April 23, he was ordered to report for a physical examination on June 17. At the examining station, King completed the customary Standard Form 89, Report of Medical History, checking, among others, the items "dizziness or fainting spells"; "depression or excessive worry"; "frequent trouble sleeping"; "stomach, liver or intestinal trouble"; "recent gain or loss of weight"; and "any drug or narcotic habit". In the space which called for a "statement of examinee's present health in own words", King wrote merely "good". As required by Form 89, the examining physician wrote a brief "summary and elaboration" of each checked item after an interview with King. His notes included, with reference to the "drug or narcotic habit", "psychedelic drugs 2½ years".

On Standard Form 88, Report of Medical Examination, the examining physician checked "abnormal" for the categories "upper extremities", "spine", and "psychiatric", explaining respectively, "claim mild pain in shoulder & neck — no records", "claim mild pain in low back — no records", and "takes psychedelic drugs 2½ years". He concluded that King was qualified for induction, and stamped on the form a paragraph indicating that King "claims ailments not verified by the medical officer and has been advised to present documentary evidence, `at his own expense' to substantiate claims to his Selective Service local board prior to his induction."

Based solely on these forms, King asserts that his physical examination was improper in that he was not accorded an examination by a psychiatric specialist. The matter is governed by Army Regulation 601-270, ¶ 4-20h(1) (b). "A specific psychiatric evaluation will be made by the Chief, Medical Examining Section, whenever the examining physician has reason to question the examinee's emotional, social, or intellectual adequacy for military service." As is apparent from the language of the regulation, discretion is reposed in the examining physician. To be sure, as King points out, a registrant may be rejected for drug addiction, AR 40-501, ¶ 2-34a(4), but the mere fact, even if true, that a registrant has taken psychedelic drugs for two and one-half years does not entitle him to a specialist examination. It was apparently the opinion of the examining physician that King showed no appreciable ill effects from any taking of drugs and met the current psychiatric standards for induction.¹ Nor do the present facts show an abuse of discretion.

As further criticism of the conduct of his physical examination, King cites the failure of the examining physician to attach to Form 88, as required by AR 601-270, ¶ 4-20h(6),² letters allegedly brought to the examination. The sole evidence at trial concerning these letters was the following colloquy on direct examination:

"Q. What were these letters?

A. They just stated about my stomach condition, I had been treated for injuries I had received in an automobile accident.

Q. What did you do with these letters?

A. I took then to the physical with me. I handed them to a doctor. He looked at them, handed them back to me."

Notably, neither the letters nor copies were introduced into evidence, nor was there testimony as to their specific contents. Since the testimony does not indicate that the stomach condition was a disqualifying one³ or even that it had persisted until the time of the physical examination, the district court properly refused to instruct that King must be acquitted if the jury found that he presented letters to the examining physician.⁴

REOPENING

In criticizing the admitted failure of the local board clerk to bring to the attention of the members of the board Forms 88 and 89 when they were returned by the examining station to the local board, King relies on the decision of this court in United States v. Ford, 431 F.2d 1310 (1st Cir. 1970). In Ford, we reasoned from Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), which requires that the local board reopen a registrant's classification when he makes a prima facie claim for a new classification, that allegations of new facts must be shown to the members of the board by the clerk in order that the board may determine whether the registrant has made a prima facie claim. King would have us interpret Ford as requiring that the statements on his Forms 88 and 89, primarily "takes psychedelic drugs during 2½ years", should have been considered by the local board as a possible prima facie claim of a "personality disorder" which would entitle him to a I-Y or IV-F classification.⁵

We are not persuaded. The Ford decision did not signal an abandonment of common sense and relevancy. Forms 88 and 89, as their titles, Report of Medical Examination and Report of Medical History, suggest, are not intended to be vehicles for the presentation of claims to local boards. Nor, more importantly, are they detailed enough to be of use to the board other than to indicate summary conclusions about assorted symptoms: the brevity of the entries forecloses the meaningful evaluation which was at the base of Ford. The present case is illustrative — "takes psychedelic drugs 2½ years" tells the board little. Appellant did not present his psychiatric claim to the local board, as he was advised to do by the stamp on his Form 88. To impose upon the board the duty of inspecting every Form 88 and 89 returned by the examining station would be to compel it to misallocate its time.

REFUSAL OF FORMS

Appellant also contends that he is entitled to a new trial on the ground that the trial judge improperly excluded testimony which would have tended to support his theory that on four occasions he had requested and been refused forms on which to indicate conscientious objection. The court instructed the jury that "If you find he did ask for them prior to his receipt of the order to report for induction, then I tell you the order to report for induction was invalid." King was permitted to testify that he refused induction because he was a conscientious objector and to testify in some detail about the four alleged requests for forms. The court did not permit him to testify in more detail about his beliefs nor his pastor to testify corroborating his conscientious objection, and excluded the deposition testimony of his mother. These items of testimony would, appellant maintains, have established more clearly for the jury that King was a conscientious objector. Because an objector is more likely than a non-objector to ask for forms, he continues, the jury could have inferred that King did so. While the predicate is patently correct, the conclusion follows no more than to say that because a sober driver is less likely to drive through a red light than an inebriated one, proof of a driver's reputation for sobriety among his neighbors must be admitted in a negligence action against him. Recognizing that the trial court did permit the testimony sketched above, which was relevant to no other issue, and instructed the jury as to appellant's requests, we hold that it did not abuse its discretion in excluding further offers of proof which might needlessly have confused the jury.

MAILING OF NOTICE

The court instructed, essentially, that the government must prove beyond a reasonable doubt that an SSS Form 110, Notice of Classification, was mailed to King on the occasion of his being placed in Class I-A, but that it need not prove receipt. King attacks this instruction as a denial of due process, but we find this attack inconceivable on the present facts.

Due process may be satisfied by actual knowledge from sources other than a Form 110, that one has been reclassified. In the case before us, King filed an SSS Form 104, Request for Undergraduate Student Deferment, on October 4, 1967, and was classified II-S on October 31. On April 15, 1968, his local board received notice from his college that he had withdrawn due to academic failure. He was ordered for a physical examination on May 21, examined on June 17, and notified of his acceptability on June 24. Not until January 16, 1969, was he ordered to report for induction on February 4. In light of this history, his testimony at trial that until January, 1971, he believed that he remained II-S is plainly...