(D.C. Criminal No. 71-44) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Gibbons and Hunter, Circuit Judges. Gibbons, Circuit Judge, concurring.
Appellant Clinton Barrett Shriver was indicted on four counts relating to alleged violation of the Military Selective Service Act, 50 U.S.C. App. § 462 (1967). He was acquitted on three of the counts but convicted for failing to report for an armed forces physical pursuant to § 462 and 32 C.F.R. § 1628.10. He is appealing that conviction.
It is undisputed that appellant did not report for a physical scheduled for January 5, 1971. At all times, he was classified 1-A. Although he was sent the proper form four and one-half months before the date of his physical, appellant did not submit a claim for a conscientious objector classification until after the date of his physical had passed. His local board did consider his claim, however, and refused to reclassify him. Appellant did not appeal from this decision.
Appellant now contends that he should have been classified as a conscientious objector. According to regulations in effect at that time, it was not a crime for a person already classified as a conscientious objector to fail to report for a physical. See United States v. Hayden, 445 F.2d 1365 (9th Cir. 1971).*fn1 Appellant argues that he should be able to prove that he is a conscientious objector and that if he does,*fn2 this should be a defense to his prosecution. The Ninth Circuit accepted a similar argument in United States v. Hayden, supra. Previously, however, this circuit rejected appellant's argument in United States v. Zmuda, 423 F.2d 757 (3d Cir. 1970), cert. denied 398 U.S. 960, 90 S. Ct. 2176, 26 L. Ed. 2d 545 (1970). Accord, United States v. Dombrouski, 445 F.2d 1289, 1297 (8th Cir. 1971).
"First and foremost, it must be emphasized that the alleged invalidity of appellant's classification is not available as a defense to a prosecution for failing to report for a physical examination. The validity of a I-A classification has no relevance to the registrant's obligation to undergo an examination to determine his physical eligibility to serve in the armed forces." (Citation omitted). Id. at 759.
Alternatively, appellant is precluded from raising the propriety of his classification in these proceedings since he failed to exhaust his administrative remedies. United States v. McGee, 402 U.S. 479, 29 L. Ed. 2d 47, 91 S. Ct. 1565 (1971); United States v. Zmuda, supra at 759. In McGee the Supreme Court held that a claim that a registrant should have been classified as a conscientious objector could not be raised as a defense to a prosecution if the registrant had failed to exhaust his administrative remedies.*fn3
This failure to exhaust also distinguishes this case from Hayden. There, appellant had been acquitted of a previous charge of failing to report for induction when a district court found that Hayden was a conscientious objector. Despite this acquittal, his board refused to reclassify him. Appellant was notified of this fact and refused to appeal. He was then re-ordered to report for a pre-induction physical. The Ninth Circuit excused this failure to pursue an administrative remedy:
"At this point, Hayden had clearly exhausted his remedies and had given the system every opportunity to correct its error, and to amplify the factual record. The full panoply of the administrative process having been brought to bear on Hayden's claim, the denial of his I-O claim was held, by a federal court, to have been without basis in fact.
"It is this circumstance, the prior judicial resolution of Hayden's claim, based on a fully developed administrative record, which distinguishes his case from that of McGee." Id. 445 F.2d at 1379.
Appellant here made no attempt to challenge denial of his conscientious objector claim. He did not even submit the claim until after his date for reporting had passed. He therefore cannot ...