William Mckinley Davis, Jr., Appellant, v. United States of America, Appellee, 374 F.2d 1 (5th Cir. 1967)

Before GEWIN and AINSWORTH, Circuit Judges, and HUNTER, District Judge.

EDWIN F. HUNTER, Jr., District Judge.

Defendant was convicted by a jury on a charge of knowingly failing to submit to induction into the Armed Forces of the United States.¹  The indictment charged that he "* * * unlawfully, wilfully, and knowingly did fail and neglect to perform a duty required of him under and in execution of * * * the * * * Act * * * in that * * * [he] * * * did fail * * * to report for and submit to induction into the Armed Forces of the United States of America." He now appeals the judgment of conviction and commitment, asserting numerous contentions of error.

The sequence of events herein is decisive. The pertinent dates are as follows:

 October 16, 1962 Davis registered with Local Board 37, Birmingham, Alabama. He did not sign the statement of conscientious objection to war. November 18, 1963 Local Board 37 classified Davis as 1A. No question is raised as to the basis in fact of that classification. November 20, 1963 Notice of Classification was mailed to him. This form contained notice to the registrant of his procedural right of personal appearance and appeal. He did not request either. Mid-July, 1964 Davis became a Muslim, a devotee of the Islamic religion. September 21, 1964 The local board mailed Davis a notice to report for a pre-induction physical on October 28, 1964. October 28, 1964 Davis reported for an armed forces physical examination and was found acceptable. During

 the course of the examination he stated that he told an Army lieutenant that he was a Black Muslim.  The lieutenant made a notation to that effect on a security check form. November 4, 1964 Acceptability Notice was mailed to Davis and was not returned. January 21, 1965) Current information questionnaires disclosed and) no change in status. June 3, 1965) August 16, 1965 Davis was ordered to report for induction on September 2, 1965. September 2, 1965 Davis reported and categorically refused to be inducted.  After leaving the induction center, he reported to the FBI office in Montgomery, and the FBI told him to report to his local board. He did so, and inquired about filing a claim of conscientious objection. September 3, 1965 After conversations with the U. S. Attorney, the local board permitted Davis to file a form seeking conscientious objector status. This was the first time that Davis had made any claim to his Board that he was a conscientious objector. September 22, 1965 At a regular Board meeting, Davis' file was reviewed. The classification was not reopened, and Davis was so notified. February 8, 1966 Davis was indicted by the Grand Jury. April 20, 1966 Davis was convicted.

The record reveals that appellant did not claim conscientious objector status under 50 U.S.C.A. § 456(j), Appendix, until after his notice of induction had been mailed to him and until after he had unequivocally refused induction. Selective Service Regulation 1625.2 provides:

"§ 1625.2 When registrant's classification may be reopened and considered anew.

"The local board may reopen and consider anew the classification of a registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * * provided * * * the classification of a registrant shall not be reopened after the local board had mailed to such registrant an Order to Report for Induction (SSS Form No. 252), unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control. 32 C.F.R. § 1625.2"

In seeking a reversal of his conviction, Davis argues that he presented a prima facie case to his local board for a conscientious objector's classification and that the record contains no evidence to rebut his claim. Thus, the fundamental assault on the conviction is that the exemption granted by the Act, 50 U.S.C.A. § 456(j) Appendix, contains no limitation upon the time for assertion of the exemption and that Selective Service Regulations setting forth time limitations cannot override the Act. There is some authority to uphold this view.⁴  However, we hold, in accord with the great weight of authority, that the orderly allowance of the exemption requires reasonable rules for its invocation and that non-compliance therewith results in forfeiture of the exemption.⁵ 

It is argued with fervor that Davis was denied due process when the Board, after receiving his belated claim, considered the facts of his case and declined to reopen or reclassify. We cannot agree. The pertinent regulation categorically declares that the classification of a registrant shall not be reopened after an order to report for induction has been mailed unless there is a specific finding by the local board of "a change in the registrant's status resulting from circumstances over which the registrant had no control." (Emphasis ours). The Board found no such change of status. The validity of this regulation has been consistently upheld.⁶  Belated development of conscientious objection is not a change in status beyond the control of registrant.⁷  Decisions cited by appellant are on their facts so different from the circumstances of the present case that they have no persuasive value to us.⁸ 

Appellant also assigns as error the action of the United States Attorney in exercising peremptory challenges so as to exclude from the jury three Negro veniremen who were otherwise qualified to serve. This action, it is argued, constitutes a denial of due process and equal protection of the laws. The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the Court's control. If peremptory challenges may be exercised only in a certain way, depending on circumstances, then they are not really peremptory. We are aware of the admonition in Swain⁹  that systematic use of the peremptory challenge to exclude Negroes in "case after case" may be improper. No such claim is made here and what the Supreme Court said there regarding the striking of Negroes in a particular case is pertinent here:

"With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

"In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case."

There remains the contention that the District Judge declined to consider Davis for probation. Our appreciation of the record is that the trial court did consider the probationary reports, but for good reasons and in good conscience did not see fit to place defendant on probation. This the Court had a perfect right to do.

A valid order to report for induction imposed upon appellant a duty to submit to induction.¹⁰  The issue submitted to the jury was whether he wilfully and knowingly refused to perform that duty. Having heard the evidence, the jury resolved that issue of fact adversely to appellant. There is ample evidence to support the jury's finding. Appellant was given a fair trial free of prejudicial error. We are without any basis to disturb either the verdict or the sentence.

The Court is grateful to Honorable Ira De Ment of the Montgomery Bar, who represented defendant as appointed counsel, for his able and dedicated efforts in behalf of his client.

Judgment affirmed.