author: PER CURIAM:

text:
    Eric MORRIS and Riley Sanders, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. L. B. SULLIVAN, etc., et al., Defendants-Appellees.
    No. 73-3110.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1974.
    Rehearing and Rehearing Eh Banc Denied Oct. 11, 1974.
    Ralph Knowles, Jr., University, Ala., Laughlin McDonald, Charles Morgan, Jr., Atlanta, Ga., for plaintiffs-appellants.
    William J. Baxley, Atty. Gen., William A. Golinsky, Asst. Atty. Gen., Montgomery, Ala., Herbert H. Henry, Asst. Atty. Gen., Birmingham, Ala., for defendantsappellees.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

Did Morris and Sanders (Petitioners) waive their claims of systematic discrimination in the selection of grand and petit jurors by failing to raise them prior to their filing of the instant consolidated federal habeas corpus case?

Sanders was convicted in 1964 of murder in the Bessemer division of Jefferson County, Alabama, but the death sentence he received then has been amended to life imprisonment as a reshit of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); and he is presently serving this sentence. Morris, convicted in 1968 in the Bessemer division, is serving a life sentence for murder and a 10-year sentence for burglary. Based upon Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969), in which we held that the method of compiling the grand and petit jury rolls and jury boxes used in the Bessemer division during a time period including the years when petitioners were indicted and convicted, violated constitutional proscriptions, the court below found that both petitioners had proved a prima, facie case of jury discrimination which the State of Alabama had failed to rebut. However, although both were represented by counsel neither challenged the means of selecting grand or petit jurors prior to trial as required by Alabama decisional law, see e. g., Ex parte Seals, 271 Ala. 622, 126 So.2d 474 (1961), and Hamilton v. State, 283 Ala. 540, 219 So.2d 369 (1969). Although the State did not prove that this omission was the result of a deliberate tactical decision by either petitioner, the district judge found that this court-fashioned Alabama procedural rule should be given the same preclusive effect for purposes of federal habeas corpus as was given to Fed.R.Crim.P. 12(b)(2) by Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Recent cases in this circuit dictate our affirmance.

Pre Davis, the rule in this circuit had been that a jury discrimination claim barred by a state procedural timeliness rule could be presented initially on federal habeas corpus absent proof by the state of a Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), deliberate bypass, a conscious, knowing and strategic waiver. See, e. g., Hamilton v. Watkins, 436 F.2d 1323 (5th Cir. 1970); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966); Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964), and Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964). Davis refused to place upon the United States any burden to show a knowing and understanding waiver and held that a claim of grand jury discrimination would be waived for purposes of collateral relief under 28 U.S.C. § 2255, if not raised before trial as required by Rule 12(b)(2), unless the petitioner made a showing of cause for not presenting it. Post Davis, this circuit has consistently held the Davis rule to be applicable to state court grand and petit jury discrimination claims. See Jones v. Henderson, 494 F.2d 47 (5th Cir. 1974); Marlin v. Florida, 489 F.2d 702 (5th Cir. 1974), and Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974). The Alabama rule applicable to the instant case embodies the same timeliness requirements as Rule 12(b)(2) for challenges to the selection of both grand and petit jurors.

Petitioners did not allege that their court-appointed attorneys were incompetent, see Jones v. Henderson, supra-, that the jury discrimination was covert and undiscoverable, or that any other form of “cause” for the omission existed, see Wells v. Wainwright, 488 F.2d 522 (5th Cir. 1973). In sum, petitioners failed to carry the burden, prescribed by Davis and by this court’s line of authorities applying Davis to state waiver cases, of demonstrating facts or circumstances that would justify waiver relief. The proceedings conducted in the court below afforded them an ample opportunity to present such evidence.

At oral argument, petitioners urged that their failure to allege, or seek to prove, cause was due to their reliance upon pre Davis cases. Such a reliance reflects a miscalculation of law, not fact. Petitioners having failed timely to raise their jury discrimination claims, or to show cause why they were not timely raised, we affirm the district court’s finding of waiver.

Affirmed.

      . The ease was originally filed as a class action seeking declaratory relief but was treated by the district court as two individual habeas petitions and consolidated. The petitioners do not challenge this treatment by the district court on this appeal.

      . See also Billingsley v. Clayton, 359 F.2d 13 (5th Cir.), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966).

      . Although Davis involved only a grand jury issue, the Supreme Court extensively relied upon Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), which denied both grand and petit jury claims.

      . Two district courts in the fourth circuit have followed a different course. See Hairston v. Cox, 361 F.Supp. 1180 (W.D.Va.), and Guzewicz v. Slaton, 366 F.Supp. 1402 (E.D.Va.1973).

      . An evidentiary hearing was originally set for April 16, 1973 but was continued until April 27, 1973 upon motion by the State of Alabama. Davis was decided on April 17, 1973. The hearing was again continued until May 23, 1973. Although the state presented affidavits of four blacks who had been on Morris’ petit jury and of two who had been on the grand jury at about the time of his indictment, neither party elected to present formal evidence and the hearing was ultimately cancelled.

      . The record discloses that in his order of May 21, 1973 cancelling a scheduled evidentiary hearing because neither party wished to present evidence, the Magistrate expressly requested the parties to address themselves to the effect of Davis on the instant case.


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert SPEED and Henry Ray Rainer, Defendants-Appellants.
    No. 73-2035.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.
    Rehearing Denied Sept. 18, 1974.

      Fisher Alsup, Corpus Christi, Tex., Court-appointed for Ranier.
    Ronald D. Karchmer, Corpus Christi, Tex., Court-appointed for Speed.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before RIVES, WISDOM and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Appellee’s petition for rehearing is granted. The opinion in this cause of December 28, 1973, 489 F.2d 478 (5th Cir. 1973), is withdrawn. The facts in this case are adequately described in the first three paragraphs of the previous opinion. 489 F.2d at 478-479. In essence, appellants’ car was stopped at a temporary checkpoint on U. S. Highway 281, between 65 and 75 miles north of the Mexican border. There was no indication that appellants were involved in any illegal activity. After inquiring whether appellants were American citizens and being told that they were, the Border Patrol agent asked to look inside the trunk. He was told that appellants did not have the key, whereupon he had the backseat of the car removed. His search of the trunk revealed approximately 40 pounds of marihuana, which was introduced as evidence at appellants’ trial for possession of marihuana with intent to distribute.

In the previous opinion, we relied on the reasoning of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Subsequently, in United States v. Miller, 492 F.2d 37 (5th Cir. 1974), a panel of this court held that Almeida-Sanchez is not to be applied retroactively to searches which occurred before the date of that opinion, June 21, 1973. In light of Miller, we abjure any reliance on AlmeidaSanchez. However, the search in question was illegal even under pre-AZmeida-Sanchez law, and we therefore sustain our prior reversal of the judgment of the district court.

The so-called border search has long been recognized as an exception to both the warrant and probable cause requirements of the Fourth Amendment to the Constitution. United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Anno., 6 A.L.R.Fed. 317 (1971). However, it has also been consistently held that border searches are not entirely exempt from the Fourth Amendment, but rather are subject to the requirement that they be reasonable. United States v. Rodriguez-Hernandez, 493 F.2d 168 (5th Cir. 1974); United States v. Warner, 441 F.2d 821 (5th Cir.) cert. den. 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); Morales v. United States, 378 F.2d 187 (5th Cir. 1967); Marsh v. United States, 344 F.2d 317 (5th Cir. 1965).

Although the probable cause standard of the Fourth Amendment need not be met, the officer conducting the search must have at least a reasonable suspicion of illegal activity. United States v. Daly, 493 F.2d 395 (5th Cir. 1974); United States v. Storm, 480 F.2d 701 (5th Cir. 1973); United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. den. 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973); Morales v. United States, supra; Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); Marsh v. United States, supra. In addition, the reasonable suspicion must be not merely of any violation, but of a Customs or Immigration violation. United States v. Storm, supra; United States v. McDaniel, supra. See, United States v. Solis, 469 F.2d 1113, 1114-1115, n. 2 (5th Cir. 1972), cert. den. 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973).

It is the government’s burden to show the existence of reasonable suspicion of a Customs or Immigration violation. Marsh v. United States, supra,. In this case, the record clearly demonstrates that the government has failed to bear its burden of showing any reasonable suspicion of criminal activity. Totally lacking from the record is any fact which might have given rise to a suspicion on the part of the officers of illegal activity. In United States v. Wilson, 492 F.2d 1160 (5th Cir. 1974), the government met this burden in a case involving a checkpoint very near the one involved here by showing that the defendants attempted to elude the Border Patrol. See also, Haerr v. United States, 240 F.2d 533 (5th Cir. 1957). This case contains no such evidence.

Finally, the government has totally failed to demonstrate any nexus with the border. In Almeida-Sanchez v. United States, supra, it was held that a border search could be conducted only at the border or the functional equivalent thereof. 413 U.S. at 272-273. This requirement is not applicable here, but some connection or contact with the border must be shown, even though the vehicle itself need not have crossed the border. United States v. Byrd, 494 F.2d 1284 (5th Cir. 1974); United States v. Bursey, 491 F.2d 531 (5th Cir. 1974); United States v. McKim, 487 F.2d 305 (5th Cir. 1973); United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973); United States v. Storm, supra; Marsh v. United States, supra.

The government cannot fulfill its burden of demonstrating a nexus with the border merely by showing that many violations occur in the vicinity of the search. As this court held more than a year before Almeida-Sanchez, “proximity to the frontier does not automatically place a 100-mile strip of citizenry within a deconstitutionalized zone, with its attendant de-escalation of Fourth Amendment requirements.” United States v. McDaniel, supra, at 132-133.

Therefore, because the government has failed to meet its burden of showing a valid border search even under pre-Aimeida-Sanchez standards, we conclude that the judgment of the district court must be

Reversed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Major Henry JOHNSON, Appellant.
    No. 73-2176.
    United States Court of Appeals, Fourth Circuit.
    Submitted April 1, 1974.
    Decided April 29, 1974.

      Leigh B. Hanes, Jr., U. S. Atty., and Ronald D. Hodges, Asst. U. S. Atty., on brief for appellee.
    Dean MacD. Greiner [Court-appointed], Bristol, Va., on brief for appellant.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM.

Major Henry Johnson was convicted by a jury of transporting a firearm in interstate commerce after having been convicted of a felony, 18 U.S.C. § 922(g). He appeals, challenging the district court’s instructions and contesting the constitutionality of section 922(g). For the reasons set forth below, we disagree with Johnson’s arguments and affirm the conviction.

Johnson was convicted in 1970 under Va.Code Ann. § 18.1-96 of one count of forgery and one count of uttering. He was sentenced to serve consecutive terms of six months in jail for each count. On February 23, 1973, Johnson purchased a .22 caliber handgun from a firearms dealer in Bristol, Virginia, and subsequently transported the gun on his person to Kingsport, Tennessee, where he was arrested and charged with making false statements to a federally licensed firearm dealer in order to acquire a firearm, and transporting a firearm in interstate commerce by a convicted felon.

Johnson complains that the trial court improperly charged the jury that his prior conviction of forgery is a “felony” under Virginia law. He maintains that the Virginia statute allows the jury an option either to sentence him to penitentiary or to jail, and since it chose to send him to jail, it reduced the character of his offense from a felony to a misdemeanor.

We note initially that the instruction complained of on appeal was not objected to by defense counsel at the trial. Rule 30 of the Fed.R.Crim.P. is specific: “No party may assign as error any portion of the charge . . . unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Johnson asserts, however, that the instruction constituted “plain error,” noticeable on appeal notwithstanding his failure to object. Fed.R.Crim.P. 52(b). We think not.

18 U.S.C.A. App. § 1202(c)(2) defines a “felony” as any “offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less.” Virginia law provides a simple method to determine whether forgery is to be classified as a “felony” or a “misdemeanor” :

Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors.

Va.Code Ann. § 18.1-6. (Emphasis added.) This language makes clear that whether forgery is a “felony” or is a “misdemeanor” is determined by the sentence lawfully possible under section 18.1-96 and does not depend upon the sentence actually imposed or the nature of the offense. Fletcher v. Commonwealth, 163 Va. 1007, 175 S.E. 895 (1934); Benton v. Commonwealth, 89 Va. 570, 16 S.E. 725 (1893). See also Hanbury v. Commonwealth, 203 Va. 182, 122 S.E.2d 911 (1961). Since Johnson was subject to confinement in the penitentiary for a term not to exceed ten years, he was not convicted of a “misdemeanor,” even though he was given a lenient sentence.

Johnson’s argument that section 922(g) is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e. g., United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a “reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U.S. at 178, 59 S.Ct. at 818. Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia. See Cody v. United States, 460 F.2d 34 (8th Cir. 1972). Johnson’s argument that the statute violates his rights protected by Fourth and Fifth Amendments is without merit. See United States v. Weatherford, 471 F.2d 47 (7th Cir. 1972); United States v. Cabbler, 429 F.2d 577 (4th Cir. 1970). Cf. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).

We dispense with oral argument and affirm the conviction.

Affirmed.

      . 18 U.S.C. § 922(a)(6). Johnson was acquitted of this charge.

      . Va.Code Ann. § 18.1-96 provides :
      If any person forge any writing, other than such as is mentioned in §§ 18.1-92 and 18.-1-94, to the prejudice of another’s right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, lie shall be confined in the penitentiary not less than two years nor more than ten years, or, in the discretion of the jury or the court trying the case without a jury, he shall be confined in jail not less than six months nor more than twelve months.

      . Rule 52(b) states:
      Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

      . Since we hold that Virginia specifically classifies forgery as a “felony,” we do not have the problem that was presented to us in United States v. Schultheis, 486 F.2d 1331 (4th Cir. 1973). In Schultheis the defendant had been convicted of simple assault, a common law crime, the punishment of which was not limited under Maryland law. He was sentenced to suspended term of ninety dfi”''. ’u jail, a small fine and unsupervised probation for two years. In. this situation we felt justified in looking to the actual sentence imposed as evidencing the seriousness of the crime to determine whether the defendant had been convicted of a “felony” or a “misdemeanor” under section 1202(c)(2). Here, the Virginia statute is unambiguous and does not contain the unusual characteristics of the Maryland common law crime of simple assault.


author: LIVELY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Craig Lee FULLER, Appellant.
    No. 73-2113.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1974.
    Decided May 21, 1974.
    Frederick Cohn, New York City, on brief, for appellant.
    Eldon L. Webb, Asst. U. S. Atty., for appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

After waiving trial by jury the defendant was found guilty of failure to submit to induction into the armed forces of the United States in violation of 50 U.S.C. App. § 462. His five-year sentence was suspended, and he was placed on probation for 25 months on condition that he accept employment for 24 months at a civilian hospital. The defendant accepted probation on this condition.

Upon registering for the draft Fuller received a student deferment, but this was lost when he dropped out of college. He made several attempts to establish his disqualification for military service on grounds of physical disability, submitting medical statements to his local board which indicated that he was suffering from a weakness of the feet, nasal congestion and chronic nasal allergy. He also claimed a psychiatric disability, which will be discussed more fully in this opinion. Each time he was examined, defendant was found acceptable for military service.

On February 27, 1969 defendant filed with his local board Form 150 seeking a 1-0 conscientious objector classification. In this form he claimed exemption from both combatant and non-combatant training and service in the armed forces, but indicated a willingness to perform civilian alternative service if called. A portion of the form is headed Series II —Religious Training and Belief. Question one requires the applicant to “Describe the nature of your belief which is the basis of your claim and state why you consider it to be based on religious training and belief.” Defendant’s complete answer was:

I am “devoted to” Humanity; to life. I possess an intense “affection for” all living things. These, according to The Shorter Oxford English Dictionary, are the to [sic] valid definitions of religion.

Question two under Series II requires the applicant to “Explain how, when and from whom or from what source you received the religious training and acquired the religious belief which is the basis of your claim.” Defendant answered as follows:

I attended church in Waverly Ohio and in Oregon and found a condition of hippocracy in existance so strong it would have stiffled even the most self evident truths, truths which I have required [sic] from men like Edward Carlos and Bruce Sodervick who are proffessers at the University. (Spelling and punctuation as in original.)

The records of the local board indicate that the Form 150 of defendant was reviewed on March 11, 1969. Two members signed a notation that “The statements therein are not considered as warranting a change of classification from I-A to I-O. Accordingly the classification is again confirmed as I-A.” The same date the executive secretary of the board entered the following minute: “SSS Form 150 reviewed. Board does not feel that there are any grounds for a conscientious objector’s classification. Classification reopened and registrant again classified I-A.” Thereafter the defendant was granted a personal appearance before the board and was notified to appear on May 13, 1969. The defendant did not appear, but the board reviewed the file and the classification was again confirmed as I-A in accordance with the decision of March 11, 1969. The local board forwarded the file to Ohio Selective Service headquarters and on July. 9, 1969 the Appeal Board affirmed the denial of exemption without any further statement of the reason therefor.

The district court held that there was no violation of defendant’s rights in the refusal to reclassify him as a conscientious objector. It found that the statements contained in defendant’s Form 150 were not sufficient to justify granting such a classification and that the request was properly considered and the refusal was for sufficient, stated reasons. Both parties cite United States v. O’Bryan, 450 F.2d 365 (6th Cir. 1971). In the O’Bryan opinion this court noted that the scope of review applicable to Selective Service cases is among the most narrow known, and that reviewing courts may not sit as “super boards.” The question before a court reviewing the actions of a draft board is whether there is a basis in fact for the determination made by the board. The first, or threshold step, in determining whether there is a basis in fact for a board decision is for the reviewing court to “determine, on the basis of the registrant’s submitted Selective Service Form 150 and supplemental material, whether the registrant has made out a prima facie case for entitlement to classification as a conscientious objector.” 450 F.2d at 368. In O’Bryan, neither the government nor the district court contended that the registrant had failed to make out a prima facie case. Independent examination of the Selective Service file confirmed that a prima facie case for conscientious objector classification had been made out and the court then reached the second step which required it to consider whether the statement of the board denying the classification was sufficient. The court held that where a local board gives no statement of reasons for rejecting an application which presents to it a prima facie case for conscientious objector classification it is impossible for a reviewing court to determine whether the local board exceeded its jurisdiction in making the decision. When no such statement is made a local board has failed to demonstrate a basis in fact for its determination, and a conviction based upon refusal to submit to induction must be reversed.

Our first task then is to determine whether the defendant made out a prima facie case for 1-0 classification. In Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), the Supreme Court set forth three tests which must be satisfied by a draft registrant in order to qualify for conscientious objector classification: (1) “He must show that he is conscientiously opposed to war in any form.” (2) “He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions.” (3) “And he must show that this objection is sincere.” 403 U.S. at 700. The statements contained on Craig Fuller’s Form 150 do not directly relate his conscientious opposition to war to any religious training and belief. Although in answer to question number four under Series II Fuller claims to have expressed his views orally in class and in a theme for English and a lengthy poem written in a fine arts course, neither the theme nor the poem was submitted as a supporting document. Furthermore, neither of the two professors referred to by Fuller as supplying his “truths,” and given as references, filed any supporting information with the board.

We recognize that the statement of an applicant for reclassification is not required to be written in the language approved by the courts or accepted among theologians. United States v. O’Bryan, supra, at 372. However, there are significant differences between the statement of Fuller and that of O’Bryan as set forth at 450 F.2d 368 n. 2. Defendant contends that his statement meets the requirements listed in Clay v. United States, supra, when considered in the light of United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). In those two cases the Supreme Court considered conscientious objector claims which were based on convictions acquired from sources other than formal religious training or orthodox religious beliefs. In Seeger, the court provided a test for determining whether an applicant’s beliefs are religious within the meaning of the exemption statute as follows:

The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. 380 U.S. at 176.

In Welsh, the applicant denied that his scruples against taking part in wars was based on religious training, but wrote a letter that his beliefs were “certainly religious in the ethical sense.” The government conceded that Welsh’s beliefs were held with the strength of more traditional religious convictions, but the appeal board could find no religious basis for his beliefs, opinions and convictions. The Supreme Court held that a person is not excluded from conscientious objector exemption because his objection to participation in war is founded upon considerations of public policy or opposition to governmental activities in the fields of domestic or foreign affairs. Welsh stated that he believed the taking of any life was morally wrong, that all human life is valuable and that he would not injure or kill another human being. The plurality opinion of Mr. Justice Black states the requirement of 50 U.S.C.App. § 456(j) in these words:

That section exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war. 398 U.S. at 344.

Giving full consideration to the Supreme Court opinions in Seeger and Welsh, we do not believe the statements contained in Fuller’s Form 150 made out a prima facie case for conscientious objector classification. He speaks of self evident truths which are stifled by hypocrisy that he found in churches he attended, but does not identify these truths or claim that they fill a place in his life comparable to that of religion in the lives of others. Nor can we infer from anything contained in the application that his devotion to humanity and affection for all living things is based on religious training and belief. In oral argument counsel for the defendant urged us to follow the holdings of two other circuits in recent cases there cited. We have carefully considered these cases and find no disagreement between the principles enunciated therein and those set forth in this opinion. The results were different because the facts were different. In United States v. Hodgins, 485 F.2d 549 (9th Cir. 1973), the statements of the applicant in support of exemption were much more complete and clearly disclosed both the religious and moral foundation of his beliefs. We feel that the Court of Appeals correctly concluded that the statements on Hodgins’ Form 150 were sufficient to make a prima facie case. In United States v. Turcotte, 487 F.2d 417 (5th Cir. 1973), there was likewise a clearly stated conscientious opposition to any war derived from religious training and beliefs. We note that the applicant in that case appeared before the local board and answered questions, whereas the applicant in the present case was advised that a personal appearance had been granted but failed to avail himself of this opportunity to explain his beliefs to the board. The statement contained in the applications which were considered by the boards both in United States v. Hodgins, supra, and United States v. Turcotte, supra, bear a closer resemblance to those considered by this court in United States v. O’Bryan, supra, than those under consideration in this case. The defendant did not establish a prima facie right to conscientious objector classification and the local board was not required to set forth its reasons for denying the application. United States v. Wood, 454 F.2d 765 (4th Cir. 1972). The basis in fact for denial is that Fuller failed to satisfy the three basic tests set forth in Clay v. United States, supra, and this is implicit in the determination of the local board that the statements in his Form 150 “are not considered as warranting a change of classification from I-A to I-O.” (emphasis original)

The second argument in support of the contention that the application made out a prima facie case for conscientious objector classification is based on the fact that the local board reopened Fuller’s file to consider his application. Defendant cites the provisions of 32 CFR § 1625.2(a) which is entitled “When Registrant’s Classification May Be Reopened and Considered Anew” and 32 CFR § 1625.4 which is entitled “Refusal to Reopen and Consider Anew Registrant’s Classification.” He argues that the words, “may reopen” in CFR § 1625.2(a) have been interpreted to mean “shall reopen” when a prima facie case has been presented and that this requires 32 CFR § 1625.4 to be interpreted that the file “shall not” be reopened unless a prima facie case has been made. We do not read these two regulations to permit a reopening only after a prima facie case has been presented or to prohibit a reopening in the absence of a prima facie case. The defendant’s interpretation of these regulations is not supported by the language in the dissenting opinion of Mr. Justice Douglas in Joseph v. United States, 405 U.S. 1006, 1007, 92 S.Ct. 1274, 1275, 31 L.Ed.2d 473 (1972), as claimed by him. That same dissenting opinion, immediately following the language quoted in his brief, states that “a local board may well have the power to reopen a classification on a lesser showing than a prima facie case.” Reopening is a matter of substance which carries with it the right of a personal appearance and an administrative appeal. Mulloy v. United States, 398 U.S. 410, 414-415, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). In conferring these rights a board does not necessarily concede that a prima facie case has been made.

The second issue determined by the district court and disputed on appeal is that the defendant was medically acceptable to the United States Army. On April 28, 1969 defendant was interviewed by Dr. R. H. Turcotte, a Massachusetts psychiatrist and on July 17, 1970 he was seen by Dr. Harvey Roy Greenberg, a psychiatrist who practiced in New York City. Defendant was given a new Selective Service physical examination on September 28, 1970 and was referred to Dr. Harold T. Brown, a psychiatrist, for further examination. On October 7, 1970 Dr. Brown examined defendant and filed a consultation report. At the time of this examination, Dr. Brown was informed of defendant’s previous consultations with Dr. Turcotte and Dr. Greenberg and had copies of their reports to the local board. After describing the interview and specific complaints of the defendant, Dr. Brown concluded his consultation report with this language:

Impression: Passive — Aggressive Personality #301.81 He is somewhat depressed but no more so than that sort of personality facing the necessity of doing something he doesn’t want to do. His record indicates that he is quite well able to function toward goals requiring planning, clear knowledge of the realities, and sustained effort. I see no psychiatric reason why he could not function in the service if required, although he will resist.

Dr. Turcotte’s letter to the board stated that defendant was unsuitable for military service and should be rejected for psychiatric reasons. In his letter, Dr. Greenberg noted that the defendant stated to him that he had had a bad attitude toward authority all of his life and that feelings of apathy and depression had increased following the use of LSD. His letter stated that: “The basic picture is that of a severe psychoneurotic depressive reaction, precipitated by LSD, which is slowly on the mend. He needs professional help, but whether he will accept it is another matter. He is still exquisitely sensitive to stress, has an ulcer to boot, and the last place for a person such as this at this moment is the service. There are probably latent passive aggressive trends in such a man, and the least one would expect would be increasing obstinacy and ineffectiveness and provocation of command were he to be inducted, leading to administrative separation. However, his medical condition at present makes it very likely that under the stress of the military, his depressive symptoms would increase substantially, with the emergence of suicidal trends. I would recommend that he be released from his obligation to serve at this point, and I have strongly urged him to seek psychiatric care.”

The scope of review of a finding of medical acceptability for military service is limited to a determination of whether there is a basis in fact for such finding. Vasilj v. United States, 425 F.2d 1134 (9th Cir.), cert. denied, 399 U.S. 928, 90 S.Ct. 2245, 26 L.Ed.2d 795 (1970). The basis in fact of the finding that defendant was acceptable for military service is contained in the consultation report of Dr. Brown. Although he classified defendant as a passive-aggressive personality, Dr. Brown found no psychotic indications and noted that the intellectual functions were intact and judgment for practical matters was good. These findings support his conclusion that there was no psychiatric reason to hold defendant unacceptable for military service. The fact that both Dr. Greenberg and Dr. Brown noted passive-aggressive personality traits does not, as contended by the defendant, compel the court to find that Dr. Brown’s conclusion of acceptability may not be relied upon as establishing a basis in fact for the final determination. Defendant has pointed to no arbitrary action or failure to follow prescribed procedures in the finding of acceptability as occurred in United States v. Wilson, 478 F.2d 475 (9th Cir. 1973). No such showing was made in this case, and the defendant in reality is asking the court to accept Dr. Greenberg’s findings and conclusions rather than those of Dr. Brown and Dr. Abraham, the physician at the Armed Forces Entrance Examining Station (AFEES) who made the final determination of acceptability. This we are not permitted to do within the narrow confines of review permitted in cases of this type.

Dr. Greenberg was permitted to testify in the district court proceedings. He stated that he had examined the defendant one time on July 17, 1970 and that the examination lasted approximately one hour. The testimony of Dr. Green-berg reveals that he agreed entirely with the diagnosis of Dr. Brown, but disagreed with the conclusion that Fuller was fit to serve. This is precisely the disagreement which was resolved when AFEES had to choose between the expert opinion of Dr. Brown and that of Dr. Greenberg. The testimony of Dr. Greenberg fails to reveal anything more than a disagreement between experts, and falls far short of sustaining defendant’s burden of showing that the determination of medical acceptability resulted from arbitrary action or a deficiency in prescribed procedures. United States v. Wilson, supra. The defendant also cites United States v. Stockwell, 485 F.2d 700 (1st Cir. 1973). In that case the court found that a draft board failed to review new information submitted by a registrant and that this failure deprived the registrant of his procedural rights. No such failure occurred in this case.

The judgment of the district court is affirmed.


text:
    Pedro Rodriquez BUSTAMANTE, Appellant, v. Harold J. CARDWELL [Frank A. Eyman], Warden, Arizona State Prison, Appellee.
    No. 73-1833.
    United States Court of Appeals, Ninth Circuit.
    May 13, 1974.

      Robert J. Corcoran (argued), LeRoy L. Miller, Powers, Boutell, Fannin & Kurn, Phoenix, Ariz., for appellant.
    William J. Schafer, Asst. Atty. Gen. (argued), Ronald L. Crimson, Asst. Atty. Gen., Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and KING, District Judge.

       The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   OPINION

PER CURIAM:

Pedro Rodriquez Bustamante appeals from an order denying his petition for a writ of habeas corpus. He challenges the district court ruling that, although his absence from the courtroom at the time a tape recording of instructions was replayed to the jury constituted error, the error was harmless beyond a reasonable doubt. We affirm.

Bustamante’s conviction for first-degree murder was affirmed by the Supreme Court of Arizona in 1968. State v. Bustamante, 103 Ariz. 551, 447 P.2d 243 (1968). Subsequently, he filed a petition for a writ of habeas corpus in federal district court in Arizona, contending that he had been denied due process of law when the jury was reinstructed at its request during deliberation, in his absence and without his knowledge.

The district court denied his petition, but this court reversed on the ground that the procedure was unconstitutional and remanded for a finding on the issue of prejudicial error. Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972).

On remand the district court soon learned that no transcript had been taken at the playing of the tape-recorded instructions. Arguing that our earlier decision required the state to produce a transcript for inspection by the district court, Bustamante contends that the absence of a transcript automatically requires his discharge. We disagree. Although our earlier opinion apparently assumed that a transcript of the reinstruction of the jury would be available, we do not read that opinion to require Bustamante’s release in the event that no such transcript could be produced.

Unable to rely upon a transcript to establish harmless error, the state requested the district court to conduct an evidentiary hearing. At the resultant hearing the state called as witnesses Bustamante’s defense attorney and the prosecutor at the original murder trial. The state also submitted a stipulation on the testimony of the presiding judge if he were called. Bustamante’s ex-attorney testified that the original instructions were played back in their entirety, that the jury could hear them, that all members of the jury were present, that the judge made no comments to the jury other than remarks such as “be seated” or “go back to your deliberations,” and that the bailiffs, clerks, and attorneys said nothing at all. The prosecutor’s memory of the proceedings was not as clear, but his testimony was consistent with that of the defense attorney. The judge who was filling in for the trial judge that evening, and who had no other connection with the case, stated only that he had no independent recollection of having presided at the reinstruction.

Based upon the record produced at this hearing, the district court was convinced beyond a reasonable doubt that Bustamante’s absence from the courtroom was a harmless oversight. We agree. The state has met its burden of showing that nothing prejudicial to the defendant occurred. See generally United States v. Arriagada, 451 F.2d 487, 488 (4th Cir. 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1300, 31 L.Ed.2d 481 (1972); Ware v. United States, 376 F.2d 717 (7th Cir. 1967); Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434 (1963), cert. denied, 375 U.S. 976, 84 S.Ct. 494, 11 L.Ed.2d 421 (1964); Bacino v. United States, 316 F.2d 11, 14 (10th Cir.), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Outlaw v. United States, 81 F.2d 805, 809 (5th Cir.), cert. denied, 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389 (1936).

We now turn to the other issues raised by Bustamante’s petition. First, he contends that the State of Arizona denied him due process of law by holding that in going forward and producing evidence he had waived his right to object to the denial of his motion for a directed verdict on first-degree murder made at the end .of the state’s case. He recognizes that we have upheld the constitutionality of the “waiver rule,” see United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972), but seeks to distinguish this case on the ground that even if his motion for a directed verdict had been granted he would still have had to defend against the lesser included offenses. He argues that he should not be required to surrender his right to offer a defense against the lesser included offenses in order to obtain review of the denial of a directed verdict on the greater charge. We need not decide this issue, however, since we find no error in the denial of a directed verdict on the first-degree murder charge. The state’s evidence, of itself, without Bustamante’s defense, contained evidence of willful, deliberate, and premeditated killing.

Bustamante also argues that the State of Arizona denied him due process of law by sanctioning a conviction based upon no evidence. This point is frivolous.

Bustamante next challenges the clarity of the instructions to the jury defining the degrees of homicide. This point has no merit in a collateral attack, whether or not it might have been arguable in the direct appeal. Our review of the instructions does not reveal federal constitutional error undermining the fact-finding process. See Shepherd v. Nelson, 432 F.2d 1045, 1046 (9th Cir. 1970); see also Young v. State of Alabama, 443 F.2d 854, 855 (5th Cir. 1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251 (1972).

Finally, Bustamante contends that he was denied adequate representation by counsel in connection with a certain pretrial motion. However, this point was not presented to the district court, and is not properly before this court.

Affirmed.


author: HUFSTEDLER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raul Robert CARRILLO, Defendant-Appellant.
    No. 72-2182.
    United States Court of Appeals, Ninth Circuit.
    Jan. 8, 1974.
    As Amended on Denial of Rehearing June 10, 1974.
    David M. Rothman (argued), Beverly Hills, Cal., for defendant-appellant.

      William D. Keller, U. S. Atty., Lawrence W. Campbell, Terry W. Bird, Asst. U. S. Attys. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and SKOPIL District Judge.

       District of Oregon, sitting by designation.

   OPINION

HUFSTEDLER, Circuit Judge:

We reverse Carrillo’s conviction for failure to report for induction (50 U.S.C. App. § 462), because the order to report did not create a continuing duty to report after the expiration of the selective service law pursuant to which the order was issued.

On March 12, 1971, Carrillo was ordered to report for induction on March 24, 1971. He did not report. He was not indicted for that failure. Nor was any further formal order to report for induction sent to Carrillo. Instead, on October 6, 1971, Carrillo’s local board sent him a letter stating that he had a continuing duty to report and directing him to report for induction on October 26, 1971. He was indicted for failure to perform his duty (based on the March 12, 1971, order) to report on October 26, 1971.

Between the time the induction order was sent and the time the continuing duty letter was mailed, two relevant changes in the selective service laws occurred. The March 12 order was issued under the Military Selective Service Act of 1967; section 17 (c) of the Act terminated the local board’s induction authority on July 1, 1971 (Act of June 30, 1967, Pub.L. No. 90-40, § 1(12), 81 Stat. 100). The Draft Extension Act of 1971 (Pub.L. No. 92-129, § 101(a) (35), 85 Stat. 348) amended section 17(c) to extend induction authority into 1973. The 1971 law, however, was not enacted until September 28, 1971. The 1971 Act was stated to be effective as of July 2, 1971.

Carrillo’s conviction cannot stand unless (1) the initial order to report created a duty to report that continued after authority to induct under the 1967 Act expired, or (2) the 1971 Act revived the duty imposed by the order issued under the 1967 Act. The history and structure of the selective service laws forbid both conclusions. Congress intended that orders to report for induction would have no vitality absent present authority to induct.

In 1948, Congress established the Selective Service System to gather and process information about males in the United States and to effect their induction into the nation’s armed forces. (Selective Service Act of 1948, ch. 625, 62 Stat. 604.) The 1948 Act was to terminate on the second anniversary of its enactment. The termination provision provided that most of the provisions of the Act were to become inoperative on that date. The few provisions excepted from this termination merely dealt with matters collateral to the operation of the Selective Service System. {Id. § 17(b).) When in 1950 Congress extended the operation of the Act, there were expressions of concern about the scope of the termination provision. It was said that to allow the law to lapse would destroy the selective service infrastructure and thereby impair the nation’s ability to mobilize men with sufficient rapidity in times of emergency. (H.R.Rep. No. 2018, 81st Cong., 2d Sess. 9-11 (1950); S.Rep. No. 1784, 81st Cong., 2d Sess. 8 (1950), 1950 U.S.Code Cong.Serv., p. 2677.) Apparently in response to such concerns, the termination provision was amended in 1951 to its present form.

The functional difference between the 1948 and the present termination provisions is instructive. Under the old provision, the entire operation of the Act ceased; under the new, information gathering and preliminary processing continues (McGrew v. Tarr (9th Cir. 1972) 469 F.2d 1087), and only the final product of the process, induction, ceases. Under the new provision, therefore, a structure would remain that would allow speedy mobilization of manpower should the need arise. After any new grant of authority to induct, only those few steps in processing that must necessarily immediately precede induction need be taken before the inductee is fully processed; all else would have been performed prior to the new grant of authority to induct. This comparison indicates that section 17(c) is designed to terminate the operation of the Act except insofar as is necessary to preserve a structure that allows speedy induction of men into the armed forces. The effect of section 17 (c) on induction orders issued prior to a termination of authority to induct depends, therefore, on whether a local board’s ability to order men to report for induction is more appurtenant to the continuing infrastructure or to the end product (induction).

A duty to report for induction can serve only two functions: to make men available for final evaluation of their suitability for military service and to make men available for immediate induction into the armed forces. The latter function is clearly related to the power to induct rather than to the selective service infrastructure; it is no more than a necessary procedural adjunct to the fact of induction. The significance of the evaluation function is also inextricably tied to the prospect of immediate induction. The distinction between a preliminary and a final determination of suitability for military service is the determination’s temporal proximity to actual induction. Any determination of fitness made without the possibility of immediately subsequent induction is by its nature preliminary. Thus, an order to report for induction in the absence of authority to induct is incapable of facilitating a final determination, for, absent power to induct immediately those found suitable, the “final” evaluation would have to be repeated whenever power to induct immediately was granted. Nor is the power to order registrants to report for induction helpful in making preliminary determinations, for other local board orders (e. g., orders to report for physical examination) exhaust the preliminary tasks that the board may perform. The only conceivable functions of an order to report for induction, therefore, are capable of being performed only when there is current authority to induct; as a consequence, section 17(c) should be so construed that, whenever it terminates authority to induct, it also terminates local boards’ authority to order registrants to report for induction.

This construction finds support not only in the history of the selective service laws, but also in the structure of the Military Selective Service Act of 1967, the manner in which local boards are given power to order registrants to report for induction. The Act nowhere explicitly provides for such power. Rather, the power finds its immediate source in the regulations. (See 32 C.F.R. 1632.1.) The regulations, however, can confer that power only for so long as the regulations are proper under the statute. The statutory authority for the regulations’ grant of power to order registrants to report for induction must be derived from three provisions of the Act. First, section 4(a) provides in pertinent part that “[t]he President is authorized ... to select and induct into the Armed Forces of the United States for training and service in the manner provided in this title . such number of persons as may be required to provide and maintain the strength of the Armed Forces.” (50 U.S.C. App. § 454(a).) Second, section 10(b)(1) authorizes the President “to prescribe the necessary rules and regulations to carry out the provisions of this title.” (Id. § 460(b)(1).) Third, section 10(c) provides that “[t]he President is authorized to delegate any authority vested in him under this title, and to provide for the subdelegation of any such authority.” (Id. § 460(c).) Thus, the local boards have no power to order registrants to report for induction except as is provided for in the regulations, and the regulations so providing are of force only insofar as they are “necessary ... to carry out the provisions of [the Act].” The regulations authorizing the issuance of orders to report for induction find their only basis in the statute in the President’s authority to induct. When, by operation of section 17(c), the President and his delegates are divested of authority to induct, his delegates are necessarily deprived of any authority dependent upon the authority to induct. The conclusion is inescapable that on July 2, 1971, section 17(c) canceled Carrillo’s induction order by operation of law.

The Government argues that even if the termination of induction authority under the 1967 Act vitiated the order to report, the 1971 Act revived the defunct order by retroactively nullifying the termination of induction authority under the 1967 Act. Nothing in the text of the 1971 Act nor in its legislative history supports the Government’s interpretation. The 1971 Act simply reinstated the local board’s authority to induct; it did not purport to revive orders based on previously expired grants of authority. The House and Senate Conference Committee Report on the 1971 Act unequivocally states the legislative intent in creating the limited retroactivity of that Act:

“In addition, the conferees wish to point out that the amendment extending the authority to induct persons for training and service is retroactively effective to July 2, 1971. The intent of the conferees in making the effective date retroactive is to provide that the period beginning July 2, 1971 and ending on the date of the enactment of H.R. 6531 be treated as an induction period solely for the purpose of insuring that there will be no lapse in the entitlement of any member of the armed forces, or his estate, to the Federal tax benefits which are available to servicemen and their states [sic] as a result of certain service during an induction period.” (H.R. Rep. No. 92-433, 92d Cong., 1st Sess. 34 (1971), 1971 U.S.Code Cong. & Ad. News pp. 1510-1511 (emphasis added).)

Carrillo’s remaining contentions require no discussion in view of our disposition of the case.

Reversed.

      . This conclusion is not inconsistent with McGrew v. Tarr (9th Cir. 1972) 469 F.2d 1087. MoGrew decided issues different from those addressed in this case. MoGrew acknowledged that there was an expiration of power to induct under the 1967 Act. (Id. at 1089.) Our conclusion that Carrillo’s order to report for induction was cancelled on July 2, 1971, is therefore compatible with MoGrew, for we hold that the cancellation of outstanding induction orders followed automatically from the expiration that MoGrew acknowledged, even though preliminary processing of registrants could have continued after the expiration.
      Our conclusion that the 1971 Act did not revive Carrillo’s defunct order is likewise not inconsistent with McGrew’s assessment of the effect of the 1971 Act. MoGrew, in essence, concluded that, even if the expiration of power to induct deprived the local board of the power preliminarily to process registrants, the 1971 Act nullified that effect. MoGrew did not speak, and could not properly have spoken, to the effect of the 1971 Act on cancelled induction orders. There is a vast difference between retroactively reinstating induction authority for some purposes and reviving defunct administrative orders. While the MoGrew court was able to infer that the 1971 Act nullified any impairment of the local boards’ power preliminarily to process registrants, we need not, and in light of the legislative history of the 1971 Act cannot, conclude that the Act also reinstated cancelled induction orders.