United States v. Wilson

• Decision Date: 22 January 1973
• Docket Number: No. 72-2250.,72-2250.
• Citation: 473 F.2d 297
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.2d 297 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Terry WILSON, Defendant-Appellant.

No. 72-2250.

United States Court of Appeals, Ninth Circuit.

January 22, 1973.

Paul Mike Goorjian (argued), San Francisco, Cal., for defendant-appellant.

Chester G. Moore, III, Asst. U.S. Atty. (argued), James L. Browning, Jr., U.S. Atty., for plaintiff-appellee.

Before TRASK and CHOY, Circuit Judges, and TALBOT SMITH,^* Senior District Judge.

CHOY, Circuit Judge:

Terry Wilson was convicted after a jury trial of refusing to report for induction into the armed forces in violation of 50 U.S.C. App. § 462(a). He was sentenced to imprisonment for a period of two years. We affirm.

FACTS

Wilson registered for the draft on September 25, 1968. Shortly thereafter he completed the first of a series of questionnaires in which he stated that he had been a mental patient at the Sacramento Medical Center in 1968. Wilson's local board acknowledged that he claimed a defect that would disqualify him from service and on May 28, 1969 sent Wilson a letter requesting verification of the defect. Wilson did not comply. He was classified I-A on August 13, 1969 but sought neither a personal appearance before his local board nor review by the appeals board.

Wilson was given his pre-induction physical examination at the Armed Forces Entrance Examining Station (AFEES) in January, 1970. On his report of medical history he reported that he had twice been hospitalized for overdoses of pills and was accordingly scheduled for a neuropsychiatric examination on April 24, 1970. Wilson related to a psychiatrist that in January of 1967 he was admitted to an Air Force hospital after ingesting approximately four hundred aspirins. He stated that he was hospitalized again after another suicide attempt in March, 1968, in Sacramento. Wilson did not provide documentation of these events. The psychiatrist noted the history of neuropsychiatric disorder associated with attempted suicide, but found no basis for disqualification.

On October 30, 1970, Wilson was ordered to report for induction on November 12, 1970. He wrote to his local board that he had been attempting to obtain a 1-Y for two years and that he had been unable to substantiate his medical claims because he was a minor and unable to obtain his hospital records. Wilson's local board refused to reopen his classification because there had been no change in status resulting from circumstances over which he had no control. Wilson refused to submit to induction on November 12, 1970.

Following a grand jury indictment, counsel was appointed for Wilson and a mental examination was ordered pursuant to 18 U.S.C. § 4244 to determine whether he was able to understand the proceedings against him or properly assist in his own defense. He was found competent but the psychiatrist concluded that Wilson had a marginal schizoid adjustment and that either induction or incarceration could precipitate another suicide attempt. The government then obtained a second examination at AFEES for Wilson. The AFEES psychiatrist concluded there was no reason to change the 1970 opinion of qualification.

The sole issue at trial was whether Wilson was sane at the time he refused to submit to induction. The trial judge gave the insanity instruction and also instructed the jury that they were to assume that the classification by the local board was proper and lawful. There was no objection to the instructions. The jury returned a verdict of guilty. Wilson does not appeal on the issue of sanity but raises a new defense not raised below. He contends that the AFEES psychiatrist applied an erroneous standard of medical qualification, thereby depriving him of an opportunity for medical disqualification and that the jury should have been so instructed.

DISCUSSION

Wilson's contentions boil down to a frontal attack on the classification given to him by his local board. AFEES may determine medical acceptability, but classification is a function of the local board which must take an overall view of the physical, mental and moral fitness of a particular registrant. United States v. Miller, 455 F.2d 358, 360 (9th Cir.1972). If AFEES applies an erroneous standard of medical qualification, the end result may be that there is no basis in fact for a registrant's classification. But we do not reach the basis-in-fact issue because the teaching of McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), compels us to hold that Wilson's failure to exhaust his administrative remedies bars the defense of erroneous classification. Accord: United States v. Juarez, 469 F.2d 770 (9th Cir.1972).

The registrant bears the primary responsibility for keeping the local board informed of his status. In turn, the local board must assist registrants who are unable to advance their claims. United States v. Timmins, 464 F.2d 385 (9th Cir.1972). Wilson failed to appeal his I-A classification or to notify his...