Petition for Writ of Certiorari — Schmitt v. United States

LF Fe iE: COURT. LI. £ . ;

phe . Choe ; SEP 12 1969 :

| | ~WHN.F. DAVIS, CLERK -

Soupreiie Court of the Gnited States

no 8 4 October Term, °1969 -

MICHAEL ALLEN SCH MITT,

Petitioner,

vs

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

| _U. S. COURT OF APPEALS, FIFTH CIRCUIT

EDWARD R. KIRKLAND

22 W. Lake Beauty Dr., Suite 104

Orlando, Florida

Attorney for Petitioner

| INDEX

* Poge } ; Page

OPINION BELOW eres is 1

GROUNDS FOR JURISDICTION. a /

QUESTIONS PRESENTED |... aan

CONSTITUTIONAL. PROVISIONS AND STATUTES

RM he he ee tae 2.

STATEMENT OF THE CASE ... panes are nee 3

ARGUMENT. i ites Minnie ne eet

CONCLUSION. Pei kh eget Se

CERTIFICATE or SERVICE: — 8

TABLE OF CASES -

Cummings v Missouri (1867 dy 4 Wall (US) 277 18 L ad

I css ates iansanberete 5

Garner -v Board of Public Works of Los Angeles, 341 US

716, oe Lo 1017. beni site ecntrnlasoce 6

ss

— ; . s ey

“S

- Supreine Court of, the ° |

Gnited States S

. No.

MICHAEL ALLEN SCHMITT,

-Petitioner, '

vs.

UNITED STATES OF AMERICA,

Respondent.

.

fl

——— °

ae

PETITION FOR WRIT OF CERTIORARI TO THE

U. S. COURT OF APPEALS, FIFTH CIRCUIT

tS

Petitioner submits herewith his jurisdictional state-

- ment as required by Rule 23 of the Rules of the Suprenie .

Court of the United States. °

OPINION .BELOW

The opinion. below was decided by the United States

Court of Appeals for the Fifth Circuit, Schmitt v. United

States, case No. 25882, on Ju une 11, 1969, attached hereto

as Appendix. .

ee

GROUNDS FOR JURISDICTION

Petition for Writ of Certiorari to the Supreme Court i

of the United on is er ay peal to 28 USC

1254(1).. e |

United States Court of Appeals for the Fifth Circuit

‘rendered its opinion on June 11, 1969. Petition for Re-

hearing was denied in Order of the:same court on July

14, 1969. Extension of time was granted to Petitioner to

file his petition for Writ of Certiorari to September 10,

1969, by Order of this Court on August 24, 1969.

QUESTIONS PRESENTED

Whether the induction of the petitioner into the

Armed Services of the United States pursuant to 50

USCA App. § 456 (c) (2) (d). (1968) contravenes the

Constitutional prohibition pursuant to the Constitution

of the United _— Article 1, § 9, cl 3.

CONSTITUTIONAL PROVISIONS AND STATUTES

: INVOLVED

Constitution of the United: States, Article. 1, atin |

9, clause : “No bill of attainder or ex post facto law shall

“be passed.” ‘

‘Amendment V 7

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a ‘presentment or.

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual serv-

ices in time of war or-public danger ; nor shall any person

be subject for the same offence to be twice put in jeop-

ardy of life or limb; nor shall be compelled in any crimi-

nal case to be a ‘witness against himself; nor be deprived

of life, liberty, or property, without due process of law;

’ nor shall private property be taken for acnad use, with-

out just compensation.” |

‘

ny & 5

a 3

“50 1 .S.C.A. App. § 456(c)’ (2) (D)' (1968)

“Notwithstanding any other provision of this Act,

_ the President, under such rules and regulations as he |

’ may prescribe, may provide that any person. enlisted or’

appointed after October 4, 1961, in the Ready Reserve of

any penal

in the Army National Guard or the Air National Guard

or enlisted in the Ready Reserve of any reserve compo-

nent prior to attaining the age of eighteen years and six

months and deferred under the prior provisions of this

paragraph as amended by the Act: of October 4, 1961,

Public Law 87-378 (75 Stat. 807), or under section 262.

-.of thé Armed Forces Reserve Act of 1952, as amended .

- (former section: 1013 of Title 50), who fails to serve sat-

isfactorily, during his obligated “period of ‘service as a |

member of such Ready Reserve or National Guard or the

Ready Reserve of another reserve component or. the Na-.

tional Guard of which he becomes a member, may be

selected for training and service and inducted into the .

armed force of which such reserve component is a part,

prior to the ‘selection and induction of other ‘Persons lia-

ble therefor. 13

STATEMENT OF THE ‘CASE ©

Petitioner adopts the Statement of facts of the eaaaia Sd

below as follows:

On October 23, 1963; gopeliant Schmitt enlisted in the

Army National Guard Unit at Cocoa, Florida. He served

six months of active duty, attended summer camp for

two years, and attended drills for a period of approxi-

mately three and one-half years.

ponent of the Armed Fofces (other than -

under section 511[b] of Title 10), the Army National

Guard, or the Air National Guard, prior to attaining age. .

’ of twenty-six years, or any person enlisted or appointed —

79

4

During May of 1965, Schmitt acquired four unexcused

absences from meetings of the National Guard. The ab-

sences were all attributable to Schmitt’s failure to attend

one weekend drill which consisted of four separate drill

sessions. Schmitt was recommended for a court’ martial,

but after further inquiry the charges were dropped and

the absences forgiven in the hope that Schmitt would re-

form and continue his soldiering in a more assiduous

- manner.

In February of 1966 Schmitt missed a weekend trip

to Camp Blanding, Florida, and was again carried on the

Guard's rolls as having missed four drills. As a result

Schmitt was once again recommended for_a court mar-

tial’ Since both-the February absence and the May ab-

sence of the previous year were, allegedly, the result of

a conflict between weekend drills and defendant’s job de-

_ livering newspapers, Schmitt now bestirred himself and

on March 4, 1966 requested a discharge or transfer due

to an incompatible occupation, 32 U.S.C.A. App. § 1101.-

18. This application was denied by the National Guard

after consideration at various levels. ,

Schmitt then acquired unexcused absences on April 2

and 3, 1966, and on May 14 and 15, 1966. He apparently

had permission to make. up these absences, but neglected

to-do so within the required thirty days. There is some

uncertainty in the record on this point as’ defendant

claims he was sometimes not credited with make-up work

properly performed within the required period.

Following these absences” Schmitt was certified by

the Natidnal Gaurd as having” performed unsatisfactorily.

This certification was sent to Schmitt’s local draft board

on DD Form 44 and the'board thereafter ordered him to

report for priority induction pursuant to 32 C.F.R. §

1631.8: This regulation, authorized by 50 U.S.C.A. App.

§ 456(c) (2) (D), instructs local draft-boards that mem-

bers of a reserve unit whose performance has been cer-

5

tified as unsatisfactory “shall be ordered to report for in-

duction by the local board regardless of the class in which

he is classified and without changing his classification.”

Acting in accordance with this directive, Local Board: 35

ordered Schmitt to report for priority induction on June

13, 1966.

of the 23rd of November, 1966, an indictment was

returned by the Grand Jury at Jacksonville charging the

Appellant “did fail and neglect to comply with an order

of his local board to submit to induction into the Armed

Forces of the United States.” The case was transferred

to Orlando, Florida where Motion to Dismiss was filed

and denied and thereafter was tried on January 4th and

5th, 1968, and Appellant was found guilty. Judgment was

entered on the 27th day of February, 1968, and Appeal

to the U. S. Court of Appeals, Fifth Circuit filed March

1, 1968.

ARGUMENT @

Petitioner submits that his induction into the Armed

Services pursuant to 50 U.S.C.A. App. §456 (c) (2) (D)

(1968) is nothing more than punisifment by virtue of a

bill of attainder or bill of pains and penalities, inasmuch

as this legislation punishes a class of individuals without

judicial trial. Therefore without a judicial trial, the peti-.

tioner has been deprived of his liberty without due pro-

cess of law. The acceleration of Schmitt and others pur-

suant to this statute into the Armed Forces depends, as

the facts of this case demonstrate, upon a certification

by the National Guard to the local draft board to report

_ for priority induction.

As far back as the case of Cummings v. Missouri

(1867) 4 Wall (US) 277, 18 L ed 356, this Court defined

a bill of attainder which includes bills of pains and ead

alities as follows: y

6

“But in the sense of the Constitution it seems that

bills of attainder include bills of pains and penalities,

for the Supreme Court has said a bill of attainder

may affect life of an individual or may confiscate his

property, or both. In such cases the legislature as-

sumed judicial magistry, pronouncing on the guilt

of the party without any of the forms and guards of

. a trial, and satisfying itself with-proofs, when such

proofs are within its reach, whethek they are con-

formable to the rules of evidence or not. In short, in

all such cases, the legislature exercises the highest

powers of sovereignty and what may very properly

be deemed an irresponsible, despotic, discretion,. be-

ing governed solely by what it deems political nec-

essity or expediency.”

In the case of Garner v. Board of Public Works of Los

Angeles, 341 US 716, 95 L ed 1317, this Court further

defined an attainder as follows: ;

Bills of attainder are legislative acts . . . that apply

either to named individuals or to easily ascertainable

members of a group in such a way as to inflict pun-

ishment on them without a judicial trial . ... United.

States v Lovett 328 US 303, 315, 90 L ed 1252, 1259,

66 S. Ct 1073 (1946) . . Whether legislative

actions curtailing a privilege previously enjoyed

amounts to punishment depends upon ‘the circum-

stances attending and the causes of the deprivation’

. (Annition, 90 Led 1267, 4 L ed2d 2157)

Upon ‘the circumstances of this case there are no

safeguards against capricious or arbitrary determina-

tions since the adjudication of what is “satisfactory” is

not submitted to a judicial tribunal. In this day and

age in the time of war on foreign soil it is little solace |

to the petitioner and others like him to remain in the

-reserve component of gthe National Guard if he can

7

s

7

. |

easily be swept to the front lines by a mere certification

of the reserve component to local draft. board. Common

sense would dictate in the circumstance presented by

this case that acceleration into the armed services is a

punishment when a privilege is denied on the grounds

of deterrhinations of such a vague word as “satisfactory.”

At this point we cease ‘to be governed by laws and

are governed by men. With this type of action condoned

a man is completely at the mercy of his superior officer

and has no forum in which to be heard!

The court-martial ‘which: sould have been held was

left in. limbo because they khew they were wrong.

There is no appeal from the certificate of priority

induction.

There is no appeal of classification.

There is no Court action that can be brought _ the

Appellant. Such an Hitlerian concept of military justice

is completely abhorent to the American concept of —

»

CONCLUSION

For the .aforesaid. reasons, Petitioner respectfully

requests this ‘Court to grant the Petition for Writ of

_Certiorari. YA

Respectfully submitted,

Edward R. Kirkland

8

I HEREBY CERTIFY that three copies of this Peti-

tion have been served upon the Solicitor General, Depart-

ment of Justice, Washington, D.C. 20530, this

day of September, 1969.

Edward R. Kirkland

22 W. Lake Beauty Dr.,~Suite 104

Orlando, Florida

- Attorney for Petitioner

ra

‘*.

v.

APPENDIX

.

ADEA INE OER lS +

‘ Gite uemmrmeesnens

MICHAEL ALLEN —

Appellant,

versus

| ne

UNITED STATES OF AMERICA,

, Appellee.

Appeal from the United States District Court for the

Middle District of Florida

(June 11, 1969

Before WISDOM, THORNBERRY and. GOLDBERG,

Circuit Judges. !

GOLDBERG, Circuit J udge: This is another selective

service case. Michael Allen Schmitt seeks deliverance

- from his conviction for willful failure to submit to in-

duction into the Armed Forces of the United States.

50°U.S.C.A. App. § 462.

On detober 23, 1963, appellant Schmitt enlisted in the

Army National Guard Unit at Cocoa, Florida. He serv-

..:., MICHAEL ALLEN SCHMITT v. U.S.A. —

ed six, months of active duty, attended summer camp

for two years, and attended drills for a period of ap-

' proximately three and one-half years.

pea

»

During May of 1965, Schmitt acquired four unex-

cused absences from meetings of the National Guard. °

The absences were all attributable to Schmitt’s failure

to attend one weekend drill which consisted of four

separate drill sessions. Schmitt was recommended for

~a court martial, but after further inquiry the charges

‘ were dropped and the absences. ae the hope

that Schmitt would reform and continue hi

in a more assiduous manner.

soldiering

™

In February of 1966 Schmitt missed a weekend trip

to Camp Blanding, Florida, and was again carried on

the Guard’s rolls as having missed four drills. As a re-

sult Schmitt was once again recommended for a court

martial. Since both the February absence and the May

absence of the previous year were, allegedly, the result’

. of a conflict between weekend drills and defendant’s

job delivering newspapers, Schmitt now bestirred him-

self and on March 4, 1966 requested a discharge or

transfer due to an incompatible occupation. 32 U.S.C.A.

‘App. § 1101.18. This application was denied by -the

National Guard after consideration at various levels.

Schmitt then acquired unexcused absences on April

2 and 3, 1966, and on May 14 and 15, 1966. He ap-

parently had permission to make up these absences,

but neglected to do so within the required thirty days.

There is some uncertainty in the record on this point

“as defendant claims he was sometimes not creditéd

/

——

—

, MICHAEL ALLEN SCHMITT v. U.S.A. 3

with make-up work properly performed within the re-

quired period. :

-Following these absences Schmitt was certified by

‘the National Guard as having performed unsatisfactori-

ly. This. certification was sent to Schmitt’s local draft

board-on DD Form 44 and the board thereafter ordered

him to report for priority induction pursuant to 32

C.F.R. § 1631.8. This regulation, authorized by 50

U.S.C.A. App. § 456 (c) (2) (D), instructs local draft

boards that members of a reserve unit whose per-

formance has been. certified as unsatisfactory “shall

be ordered to report for induction by the local, board -

regardless of the class in which he is classified and

without changing his classification.” Acting in ac-

cordance with this directive, Local Board 35.ordered ~

Schmitt to report for priority induction on June 13,

1966. |

Schmitt states that the certification of unsatisfactory

performance which generated his induction order was

caused by the fact that he stood up for his rights in |

the preliminary stages of court martial proceedings

- then pending against him. He had.at the tithe retained

a lawyer to defend him in those proceedings. He al-

leges that shortly after his lawyer obtained affidavits

from two of his superiors at the newspaper substan-

tiating his claim of a conflict between his job and the

National Guard meetings, the certification of unsatis-

factory performance was mailed to his draft board.

Schmitt thereby. implies some kind of ulterior motive

on the part of the National Guard in certifying his

performance as unsatisfactory.

4 MICHAEL ALLEN SCHMITT v. USA.

On June 13, 1966, Schmitt reported to the induction

station as ordered and proceeded through the normal

procedures, passing all tests. In the ceremony room,

however, he refused to take the step forward which

symbolized entrance into the Armed Services. He

ased his refusal on the grounds that his induction

as improper and that he was awaiting word from his

attorney who was seeking a ‘writ of habeas corpus.

The. officer in charge of the swearing: in advised

Schmitt of the consequences: of po Seve and again

asked him if he would submit to induction. He refused.

At this point, Schmitt was turned over to the Com-

_ manding Officer of the induction station. The Officer

read Schmitt the regulations which explained the con-.

sequences of his refusal to submit to.induction, and

offered him another opportunity to accept. Schmitt a-

gain refused, explaining to the Officer that his attorney

acksonville was attempting. to procure a writ of.

habeas corpus. The Commanding Officer, after consul- .

tation with his’ superiors, then gave Schmitt approxi-

mately’ two.hours in which to contact his attorney.

-When no developments occurred during that time,’

Schmitt was given yet one more opportunity to submit

to induction, and after his refusal he was sent home.

On this appeal Schmitt argues that even if his con-

duct as a guardsman was militarily lackadaisical, he

was still a member of the Armed Forces on his inde :-

tion date and therefore not assimilable through the

Selective Service System. He tries to propound this

riddle: how can .one who is-already in the Armed

Forces be subject to the draft and be tried for refusal

a

- MICHAEL ALLEN SCHMITT v. U.S.A. )

of induction? Schmitt suggests that the only proper way

to induct a recalcitrant guardsman is first to dis-

charge him from the National Guard and then to induct

him from his Civilian status.

Schmitt misconceives the status and obligations of a

guardsman under the Universal Military Training and

‘ Service Act.' The Act stipulates in part that “Except as

otherwise provided in this title ... every male citizen

_of the United Siates ... who is between the ages of 18

years and 6 months and 26 years : . . shall: be: liable

for training and service in the Armed Forces of the

United States.” [Emphasis added.] 50 U.S.C.A. App.

§ 454. The term “Armed Forces” is defined in 50

U.S.C.A. App. § 466(c) of the Act to incluge “the

Army, the Navy, the Marine Corps, the Air Force, and

the Coast Guard.” The Army National Guard_is not

included in the term “Armed Forces” as used i in the

Act; 2 ‘consequently up until 1963 persons who enlisted

in the National Guard between the ages of 18-1 /2 and.

26 were not immune from induction under the Univer-

sal Military Training and Service Act. See 1963 U. S.

- 1In 1967, Congress amended the Universal Military Training and

Service Act. The Act is now_known as the “Military Selective

Service Act of 1967.” 50 U.S.C.A- App. § 451(a). Schmitt, how-

ever, refused induction prior to the 1967 amendment and was .-

therefore tried ‘and- convicted under the old Universal Military

Training and. Sefvice Act.

2The “National Guard” as used in the Act is included within the

larger Gefinitional category “reserve components of the armed

. forces’ defined in 50 U.S.C.A. App. § 466(i). The meaning

of the term “National Guard” is more extensively defined at.

10 U.S.C.A. § 101(9) and § 101(10) and is-also distinguished

there from the definition of the term “Armed Forces.” 50 —

U.S.C.A. App. § 1014).

6 MICHAEL ALLEN SCHMITT v. U.S.A.

Code Cong. and Adm. News, p. 845. In 1963, however,

Congress enacted Public Law 88-110, 77 Stat. 134,®

which amended 50 U.S.C.A. App. § 456 (c) (2) to per-

mit the deferment* of a member of the National Guard

“so long as he performs satisfactorily ... .” 50 U.S.C.A.

App. § 456 (c) (2), (A) (iii). In order to emphasize that

the deferment remained in force only so long as the

guardsmah, conscientiously fulfilled his obligations,

Congress enacted a penalty provision which provided

for the priority induction of any guardsman whose

performance was certified by the National Guard as

unsatisfactory. 50 U.S.C.A. App. § 456 (c) (2) (D)5

3See 1966 U. S. Code Cong: and Adm. News, p. 147-149.

4A member of the National Guard receives a 1-D deferment “so

long as he continues to serve satisfactorily as such member... ’.’

32 C.F.R. § 1622.13.

550 U.S.C.A. App. § 456(c)(2)(D) (1968):

Notwithstanding any other provision of this Act, the

President, under such rules and regulations as he

may prescribe, may provide that any person enlisted

or appointed after October 4, 1961, in the Ready Re-

serve of any reserve component of the Armed Forces

(other than under section’ 511(b) of Title 10), the

Army National Guard, or the Air National. Guard,

prior to attaining age of twenty-six years, or any

person enlisted or appointed in the Army National

. Guard or the Air- National Guard or enlisted in the

Ready Reserve of any reserve component prior to

attaining the age of eighteen years and six months and

deferred under the prior provisions of this paragraph

as amended by the Act of October 4, 1961, Public

Law 87-378 (75 Stat. 807), or under sectidén 262 of

the Armed Forces Reserve Act of 1952, as amended

[former section 1013 of Title 50], who fails to serve

satisfactorily during his obligated period of service

as a member of such: Ready Reserve or National

Guard or the Ready Reserve of another reserve com-

ponent or the National Guard of which he becomes

MICHAEL ALLEN SCHMITT v. USA. 7

‘ale 32 C.F.R. § 1631.8. Neither the penalty provision

\ a member, may be selected for training and service

and inducted into the armed force of which such re-

serve component is a part, prior to the selection and

induction of other persons liable therefor.

632 C.F.R. § 1631.8 (1969):

Registrants who shall be inducted without calls.

(a) Notwithstanding any other provision of the ©

regulations in this chapter, any registrant enlisted or

' appointed after October 4, 1961, in the Ready Reserve

of any reserve component ofthe Armed Forces (other

than under section 511(b) of title 10, United States

Code), the Army National Guard, or the Air National

Guard, prior to attaining the age of 26 years, or any

registrant enlisted or appointed in the Army National

Guard or the Air National Guard prior to attaining

the age of 18 years and 6 months and prior to

September 3, 1963, and deferred under the provi-

sions of section 6(c)(2)(A) of the Universal Military

Training and Service Act, as amended, which were in

effect prior to September 3, 1963, or any ‘registrant

enlisted in the Ready Reserve of any reserve com-

ponent of the Armed Forces prior to attaining the

age of 18 years and 6 months and prior to August 1,

1963, and deferred under section 262 of the Armed

Forces Reserve Act of 1952, as amended, who fails

to serve satisfactorily during his obligated period of

service as a member of such Ready Reserve or Na-

tional Guard or the Ready Reserve of another reserve

component or the National Guard of which he becomes

a member as certified by the respective armed force,

shall be ordered to report for induction by the local

board regardless of the class in which he is classified

and without changing his classification. Any regis-

trant who is ordered té report for induction under this

paragraph shall be forwarded for induction at the next

time the local board is forwarding other registrants for

induction or at any prior time when special arrange-

ments have been made with the induction station,

without any calls being made for the delivery of such

registrants. Whenever the local board desires to

deliver such a registrant specially, it shall request the

State Director of Selective Service to make the special

REPRO Ne

8 MICHAEL ALLEN SCHMITT v. USA.

itself, nor its legislative history indicates that a guards-

man muS&t be discharged before priority’ induction be

invoked. See 1966, U. S. Cong. and Adm. News, pp. 147-

148 and 844-850. In fact, a regulation of the National

Guard clearly dictates to the contrary. The regulation

provides that a delinquent guardsman :nay not be dis-

charged pending certification to his local draft board:

“(1) Individuals inthe Army National Guard

with a remaining service obligation under the

Universal Military Training and Service Act,

as emended who cannot participate with the

unit for the\reasons shown below will not be

discharged from the Army National Guard but

will ‘be transferred to the Inactive National

Guard for the remainder of their enlistment.

(i) Continuous and wilful absence from

military —

** *

“(2) The removal of the above individuals

from an active Army National Guard status

arrangements for the “gene and place at which the

registrant may be delivered for ‘induction.’

(b) At the induction station, each registrant on as

is forwarded for induction under paragraph (a) of this

section shall be inducted into the armed force of ©

which the reserve component in which the registrant

is a member is a part.

(c) Notwithstanding any other provision - of law,

any registrant who has failed or refused to report for

induction shall ‘continue to remain liable for induc-

tion and when available shall be immediately in-

ducted.

Prd

Se

MICHAEL ALLEN SCHMITT v. U.S.A. 9

will be reported to the local board on DD Form

44 (Military Status of Individual).””

In addition to this regulation, a number of cases

have indicated on their facts that a formal discharge

from a reserve component is not a preconditjon to

priority. induction. Cf./In Re McBee, S.D.Calif. 1968,

287 F.Supp. 926, 927; Mader v. Clifford, No. “48,612.

(N.D. Calif. Jul. 26, 1968) 1 SSLR 3185. Other’ cases in

this same area indicate by their silence on the dis-

charge issue that formal severance from a reserve

component is not-a prerequisite to the priority induc-

tion procedure. Cf. United States v. Lonstein, 2 Cir.

1966, 370 F.2d 318, 319; United States v. Smith, D-Mont.

1967, 266 F.Supp. 309, 309-310. In fact, discharge could

aceomplish no useful. purpose not also achieved by

certification.

The certification procedure advises the local. board

that the guardsman’s services are no longer desired

and no longer satisfactory. This procedure proclaims

that he has breached the conditions of his deferment

and is once more at the disposal of the Selective

Service System. Such a procedure does not depend

_ in any way upon an express pee from a reserve

component. A guardsman or reservist is not a player

of now you are in and now you are out, nor do the

relevant statutes prescribe a game of occupational

shuttlecock with military life at one terminus and

civilian life at the other. All that Congress intended

by 50 U.S.C.A. App. § 456 (c) (2) (D) was to foreclose

7This regulation may be found at 32 U.S.C.A. App. § 1101.18(d-3).

AS,

10 MICHAEL ALLEN SCHMITT v. U.S.A.

the use of the National Guard and other reserve pro-

grams as escapist havens for ex parte soldiering. This

Congressional purpose was accomplished by the simple

expedient of granting conditional deferments to those in

reserve components. Once such a deferment is lost,

the guardsman or reservist in question, with or without

a discharge, is once more a part of the Selective

Service manpower pool. From that moment until the

expiration of his statutory obligation under: the Act,

he is once more vulnerable to induction.

Schmitt presents no argument to suggest that this

analysis is-in error. He merely contends that the Na-

tional Guard should have discharged him contrary to

its own regulations’ because he is already in the

Armed Forces and therefore. not liable for induction.

-This argument has already been demonstrated to be

untenable. A guardsman enjoys no immunity under

the Universal Military Training and Service Act apart

from his deferment. Violation of the condition of his de-

ferment places him in no better position than his

civilian contemporaries.® '

Schmitt also contends that his case presents a juris-

dictional conflict between military and civilian author-

ities. He argues that because a court martial proceed-

ing is still pending against him, the district court had

no jurisdiction under 50 U.S.C.A. App. § 462 and 18

U.S.C.A. § 3231 to try him for refusing induction.

8In fact, violation of the conditions of his deferment places the

delinquent guardsman in a worse position than his civilian

contemporaries because of his liability to placement in a

priority induction group. 32 C.F.R. § 1631.8.

MICHAEL ALLEN SCHMITT v. U.S.A. 11

_ The government responds to this argument by point-

ing out that refusal of induction is a civilian crime,

and that offenses aginst laws of the United States are

triable in United States District Courts even when they

involve military personnel. Peek v. United States, 9 Cir.

1963, 321 F.2d 934, cert. denied, 376 U.S. 954, 84 S.Ct.

973, 11 L.Ed.2d 973; United States v. Canella, S.D. Cal.

1945, 63 F.Supp. 377, aff'd, Canella v. United States,

9 Cir. 1946, 157 F.2d 470. The fact that an offender

may be answerable to a court martial for his Civilian

offenses does not absolve him before civilian courts.

Kennedy v. Sanford, 5 Cir. 1948, 166 F.2d 568. Schmitt

cannot therefore prevail even if he has his argument

both ways. If he is still subject to military: justice, he

is nonetheless responsible for non-military crimes be-

fore civilian courts. If,on the other hand, he is not

subject to military justice, then he can find no refuge

in any claim to the exclusivity of military law.

There is furthermore no chance that Schmitt ‘will be

tried twice for the same offense. The National Guard

has no authority to try him for refusal of induction.

See 50 U.S.C.A. App. § 462;° Billings v. Truesdale,

1944, 321 U.S. 542,-64 S.Ct. 737, 87 L.Ed. 917. The court

martial pending against Schmitt is not for refusal of

induction, but for unexcused absences from required

military drills. There is consequeritly no direct conflict

9 “. . . No person shall be tried by court martial in any

case arising under this title [said sections] unless such

person has been actually inducted for the training

and service prescribed under this title [said sections]

or unless he is subject to trial by court martial under

laws in force prior to the enactment of this title

[June 24, 1948]... .° 50 U.S.C.A. App. § 462.

.

EE ae Pa thee ad

§ Z ——”

12 MICHAEL ALLEN SCHMITT v. U.S.A. 7

of jurisdiction between the military and civilian auth-

orities with respect to the offense here under review.

: >

Schmitt also contends that the district court com-

mitted reversible error in finding a basis in fact for

the National Guard’s certification of his unsati§fac-

tory performance. He claims that the only basis for the

certification was the personal pique of his superior of- |

ficers. They were angered, he contends, by his submis-

sion of affidavits that were filed with the National

Guard in anticipation of his pending court martial.

The affidavits allégedly angered Schmitt’s superiors

because they contradicted the testimony of a fellow

officer. /

The government argues that this court may not con-

sider the possibility of personal bias or whimsy by

the National Guard in our review of the lawfulness of

‘Schmitt’s induction order, though it is conceded that

the induction order is based almost entirely upon the

certification. 32 C.F.R. § 1631.8. The government re-

lies upon United States v. Lonstein, supra, at 320, for

the .proposition that certification is within the exclu-

sive province of the National Guard and therefore not

reviewable by the courts. We must disagree.

The precise reasoning of Lonstein on the certifica-

tion issue is not entirely clear, but it appears to be

based largely upon the view that the role of. draft |

boards in certification cases is purely “ministerial.” |

Since reclassification of a guardsman is not required

where his performance hfs been-certified as unsatis-

factory, 32 C.F.R. § 1631.8, whether or not there is

Sees ALLEN .SCHMITT v. U.S.A. 13

any basis in fact for the- certification is said to be a

matter “for the Army,” and not for the draft board.

United States v. Lonstein, supra. ; .

Sac

One difficulty with the Lonstein approach is its char-

acteyization of the role of draft boards in certification

) which indicates that draft boards do possess dis-

cretion when considering certification cases. See Quaid

v. United States, 10 Cir. 1967, 386 F.2d 25, Lurie v.

United States, 5 Cir. 1968, 402 F.2d 297. Still other.

cases indicate that where this discretion is invoked, and_ : .

the registrant is reclassified, he becomes entitled by

ht to an appeal of his new classification. United

States v. Bricker, No. 41,239 (N.D. Cal. 1967); Mader v.

Clifford; No. 48,612 (N.D. Cal. 1968), 1 SSLR 3185.

Another difficulty with Longtein is suggested by Estep

v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90

L.Ed. 567. The Court there expressed concern with

induction orders that might be based on bias or dis-

crimination, or might otherwise be contrary to law.'?

10Since Estep, Congress has provided for judicial review of “the

classification or processing of any registrant . . . only’ when

there is no basis in fact for the classification assigned to such

registrant .. .” 50 U.S.C.A. App. § 460(b)(3). While a delinquent

guardsman need not be formally reclassified prior to induc-

tion, 32 C.F.R. 1631:8, it has been held that he “has the same

rights in court as he would have if-he had been reclassified by

the Selective Servide System.” United States ex rel. Goldstein

v. McNamara, E.D. ‘Pa. 1967, 270 F.Supp. 892, 893, A guards-

a

14 MICHAEL ALLEN SCHMITT v._.U.S.A.

It would seem that a certification order based upon

the same unlawful considerations would also taint the

induction ‘order and that courts should not be fore-

closed from exploring such allegations.

“If a local board ordered a:member of Con-

gress to report for induction, or if it classified a

registrant as available for military service, be-

cause he was a Jew, or a German, or a Negro,

it would act in defiance of the law. If a local-

board refused to reopen on the’ written re-

quest of the State Director a registrant’ s class-

ification and refused to cancel its order to re-

-port for induction, it would be acting in the

teeth of the regulations. In all such cases its

~ action would be lawless and beyond its juris-

diction.

“We cannot read § 11 as requiring the courts

to inflict punishment on registrants ‘for violat-

ing whatever: orders the local boards might

, issue. We cannot believe that Congress intend-

ed that criminal sanctions were to be applied

to orders issued by local boards ne matter how

flagrantly they violated the rules and regula-

tions which define their jurisdiction. We ‘are

dealing here with a question of personal liberty.

A registrant who violates the Act commits a

man would not enjoy the same rights as those reclassified if

the lawfulness of his induction was not open to review, or if

a wholly arbitrary certification order was an adequate “basis

in fact” for an order of induction. Cf. United States ex rel.

Goldstein v. McNamara, supta, at 895.

o ye §

_MICHAEL ALLEN SCHMITT v. U.S.A. 15:

felony. A felon customarily suffers the loss of

substantial. rights. Section 11, being silent on

the matter, leaves the question of available de-

fenses in doubt. But we are loathe to resolve

those doubts against the accused. We canhot

readily infer’ that . Congress departed so far

from the traditional concepts of a fair trial

when it made the actions of the local boards

‘final’ as to provide that a citizen of this coun-

try should go to jail for not obeying an unlaw-

ful order of an administrative agency. We are

loathe to believe that Congress reduced crim-

‘ inal trials under the Act to proceedings so bar-

ren of the customary safeguards which the

law has designed for the protection of the ac-

cused.” 327 U:S. at 121-122.

The trial judge in the case at bar, ‘perhaps also

“loathe to dispense with the customary safeguards

which the law has designed for the protection of the’:

accused,” heard testimony on the certification issue

in chambers, out of the presence of the jury. In adopt-.

ing such a procedure, he appears to have followed the

practice established in Cox.v. United States, 1947, 332

US. 442, 68 S.Ct. 115, 92 L.Ed. 59, for. the determina-

tion of the lawfulness of a registrant’s classification,

and also adopted in United States ex rel. Goldstein v.

McNamara, E.D. Pa. 1967, 270 F.Supp. 892, for the

determination of-the lawfulness of a reservist’s certi-

fication. We commend the tria] judge’s adoption of such

a procedure. It enabled him to make an informed

judgment concerning the lawfulness of Schmitt’s in-

duction and gave substance to his conclusion that there .

16 MICHAEL ALLEN SCHMITT v. U.S.A.

was .a basis i in fact for the National Guard’s certifi-

cation. Considering that appellant had incurred at least

eight unexcused absences from required drills, we

certainly cannot say that-the court was in error. In

fact, by disabusing the spectre of capriciousness or

arbitrariness which appellant had declared to be the

-basis of the Guard’s. certification, the court placed the

certification and the subsequent induction order upon

even firmer ground. Thus buttressed, the certification

became an‘unconditional fiat not subject to jury im-

peachment. ‘

Schmitt next contends that he was never given the

opportunity to accept induction into the Armed Forces

in accordance with the procedures described in Special

Regulation 615-180-111 He interprets, Chernekoff v.

11See Chernekoff v. United States, 9 Cir. 1955, 219 F.2d 721, 724,

n. 12:-

’ “23. Induction. — The following procedure will

pe followed in the induction of all registrants into the

* -Armed.- Forces: >

_ “a. Registrants who have been determined to be

_ + fully qualified for induction in all respects will be

“assembled. The inducting officer will inform them

of the imminence of induction, quoting the following::

“You are about to be inducted into the

Armed Services of the United States, in the

Army, the Navy, or the Air Force, as in-

dicated by the service announced following

your name when called. You will take one

_step forward as your name and service are

<a called and such step will -constitute your in-

duction into the Armed Service indicated.

“b. A commissioned oficer or warrant efficer

then will call the roll ‘and the Seregong procedure

jwill be carried — re &

} - ‘ s * ° *

-

.

‘MICHAEL ALLEN SCHMITT v. USA. 17

United States, 9 Cir. 1955, 219 F.2d 821 as requiring

that the prospective inductee be given two chances to

take the symbolic step forward described in the regula-

tion, and two warnings of the consequences of a failure

to do so. He concedes that he was given one opportunity

to step forward in the precise words of the regulation

and he concedes that he was given numerous oppor-

tunities to submit to induction thereafter. But he con-

tends that the latter opportunities were not couched

in the exact terms of the regulation set forth in Cherne-

koff.

“2. Processing registrants in special Categories.

*

~“b. Registrants who ‘ial to submit to. induc-

* tion. — Any registrant removed from the group as

prescribed in paragraph 23, and who persists in his

refusal to, submit to induction, will be informed that

such refusal constitutes a felony under the provision

of the Selective Serviee Regulations. He’ will be in-

formed further that ,, conviction of such an offense. _

under civil proceedings will subject him to be punished

by imprisonment for not more than 5 years, or a fine

of not more than $10,000, or both. He will then be

informed again of the imminence of induction using

the language specified in paragraph 23a, and* his

Mame and service again will be called. If he steps

forward at this time, he will be informed ‘that he is a

member of the armed service concerned, using the

language specified in paragraph 23b. If, however, he

persists in refusing to be inducted, the following ac-

tion will be taken:

“(1) The registrant will be requested, but not re-

quired, to make a signed: statement, dated, in his own

handwriting, as follows: ‘I refuse ‘to be ‘inducted into

the Armed Services of the United States.” Such

‘ statement should be witnessed by at least two wit-

. nesses who shall affix their signatures to the state-

ment. Registrants who refuse induction. will not be

onienee any means of transportation.”

18 MICHAEL ALLEN SCHMITT v. U.S.A.

Appellant misreads the Chernekoff case. While it is

true that Chernekoff required strict compliance with

the precise language of the regulation, it merely re-

quired that the step forward language and the penal-

ties for failure to submit to induction be read once.

In Chernekoff the inductee was never given the pre-

scribed opportunity to step forward. In the instant

case Schmitt was given the precise step forward op-

‘portunity the first time around, and having refused

the opportunity once, was thereafter warned of the

penalties of refusal and asked in general language

whether he would submit to induction. These latter

general offers carried the clear implication that if he

agreed to submit to induction, then he would be given

a second chance to take the symbolic step forward.

* Meaningless repetition of the ceremonial language was

not required. See Bradley v. United States, 9 Cir. 1954,

218 F.2d 657, 660-661, rev’d on other grounds, 348 US.

967, 75 S.Ct, 532, 99 L.Ed. 754. However, assuming

arguendo that there was a slight departure from the

strict letter of the regulation, clearly appellant was not

prejudiced thereby. Edwards v. United States, 9 Cir.

1968, 395 F.2d 453, 457, cert? denied, 393 U.S. 845. Minor

departures from the ordinary induction procedure are

no defense. Edwards v. United States, supra.

In this connection we note that the abracadabra of

the step forward is not a meaningless ritual if confined

to its intended function, and if not allowed to become an ,

end in itself. Its legitimate \purpose is to insure that’

the prospective inductee oe the effect, pains and

penalties .of refusing inductio , and it has also “for

its object the separation with certainty of those who

Bi.

MICHAEL ALLEN SCHMITT v. U.S.A. ‘19

would not be inducted from those who would.”

Bradley v. United States, supra, at 661. If, therefore,

the facts clearly show that the inductee at the time

or times of stepping forward is sensitive to all that

the ritual would impress upon him, and that he still

refuses induction,.then it becomes a mere pantomime

_ without meaning, to insist that the ritual be repeated

again and again. The regulations do not compose a

ballet. After the first warning and refusal, it is in-

credible to believe that additional ceremonial offers

would be anything but exercises in futility.

Appellant also entreats reversal because of alleged-

ly prejudicial remarkg in the prosecuting attorney’s

closing argument to the jury. However, appellant’s

counsel lodged no objection to this closing argument at

trial, remaining instead supinely silent during its pres-

entation. Under such circumstances the teachings of

United States v. Socony-Vacuum Oil Co., 1940, 310 U.S.

150, 239, 60 S.Ct. 811, 84 L.Ed. 1129, 1176, become

pertinent. “.. . counsel for the defense cannot as a rule

remain silent, interpose no objections, and after a ver-

dict has been returned seize for the first time on the

point that the comments to the jury were improper

and prejudicial.” This rule remains as; a sentinel in

our appellate process. In keeping, however, with the

reiterated wisdom that courts “may, of their own mo-

tion, notice errors to which no exception has been taken,

if the errors are obvious, or if they ona nas emt

affect the fairness, integrity or public reputation of

judicial proceedings,” United States v. Socony-Vacuum

Oil Co., 310 U.S. at 239, we have carefully read the

20 ‘MICHAEL ALLEN SCHMITT v. U.S.A.

prosecutor’s closing remarks to the jury and find

them non-prejudicial.

- Some of the prosécutor’s remarks to which appellant

objects were made in reasonable refutation of subjects

first introduced by appellant’s own closing argument.

Others, such as the prosecutor’s statements of personal

belief in appellant’s guilt, while improper, are preju-

dicial only if the jury is led to believe “that there is

other evidence, unknown or unavailable to the jury,

-upon whith the belief in the guilt of the accused is

based.” Devine v. United States, 10 Cir. 1968, 403 F.2d

93; 96; McMillian v. United States, 5 Cir. 1966, 363

F.2d 165, 169; Gradsky v. United States, 5 Cir. 1967, 373

F.2d 706, 710. We find’ no such reasonable possibility

here. Even applying the most generous application of

the salutary ony Poin rule, F. R. Crim. P. 52 (b),

the prosecutor’s arguments still do not rise to that

degree of flagrancy required to animate a reversal.

Samuels v. United States, 5 Cir. 1968, 398 F.2d 964. —

Schmitt’s final objection is to the sufficiency of the

evidence to support a conviction. He argues that he

failed to sign certain induction papers and he claims

that he never went to the ceremony room where he

was charged ‘with refusing induction. However,

Schmitt’s testimony on both the induction ritual and

the paper processing was contradicted by government

witnesses. The truth of his assertions was consequent-

ly for the jury to believe or disbelieve. “It is not for

us to weigh the evidence or to determine the credibility

of witnesses.” Glasser v. United States, 1942, 315 U.S.

60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704. In criminal

MICHAEL ALLEN SCHMITT v. U.S.A. 21

cases “The verdict of a jury must be sustained if there

is substantial evidence, taking the view most favorable

to the Government, to support it.” Jd. The jury was

within its rightful province in choosing to disbelieve

Schmitt’s denials. The remaining testimony by govern-

mént witnesses was sufficient for a jury to find ap-

pellant guilty — and it did.

' The conviction below is affirmed.

: | AFFIRMED.

y

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