British Airways Board v. Civil Aeronautics Board Court Opinion

    IN FORMA PAUPERIS

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 24744

BARRY JEROME WALLACE,
Appellant,

versus
UNITED STATES OF AMERICA,

\
Appellee.

Appeal from the United States District Court for 
the Southern District of Georgia

— — ------------------------  ■ - t—

APPELLANT'S BRIEF
e= , L a :  ■ ...- i m a a : -  ' ■ iii« .

JACK GREENBERG 
MICHAEL MELTSNER 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York

HOWARD MOORE, JR.
859 1/2 Hunter Street, N.W. 
Atlanta, Georgia

THOMAS F. WALSH 
P. 0. Box 75 
Savannah, Georgia

CHARLES MORGAN LAUGHLIN MCDONALD
5 Forsyth Street N.W. 
Atlanta, Georgia

Attorneys for Appellant
JOHN P. HOWLAND

Of Counsel



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 24744

BARRY JEROME WALLACE,
Appellant,

versus

UNITED STATES OF AMERICA,
Appellee.

Appeal from the United States District Court for 
the Southern District of Georgia

APPELLANT'S BRIEF



* »

INDEX
Page

Statement................................................  1
Specification of Error ....................................   H
Argument 12

I. The Judgment Belov/ Must Be Reversed Because The 
Convictions Are Not Supported By Sufficient 
Evidence........................................... 12

II. The Court Below Erred By Totally Failing To
Charge The Jury As To Criminal Intent................ 22

III. The District Court Erred In Refusing To Continue 
The Trial For One Week So That Appellant Might 
Be Represented By Retained Counsel Of His Own 
Choosing........................................... 29

IV. The Trial Judge, In Imposing The MaximumSentence On Both Charges, Failed To Conform
To The Federal Rules Of Criminal Procedure
And Abused His Discretion............................  35

Conclusion................................................. 42



I

TABLE OF CASES
Page

Argo v. Wiman, 209 F. Supp. 299 (M.D. Ala.) aff'd 308
F.2d 674 (5th Cir.), cert, denied 371 U.S. 933 (1962). . . .  31

Bartchy v. United States, 319 U.S. 484 (1943). . . 12,15,16,18,19
Boerngen v. United States, 326 F.2d 326 (5th Cir. 1964). . . .  39
Byrd v. United States, 352 F.2d 570 (2nd Cir. 1965)..........  26
Candler v. United States, 146 F.2d 424 (5th Cir. 1944) . . . .  12
Chandler v. Fretag, 348 U.S. 3 (1954)........................  31
Coleman v. United States, 357 F.2d 563 (D.C. Cir. L965). . . .  39
Cuozzo v. United States, 325 F.2d 274 (5th Cir. 1963)........  37
Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965) . . .  34
Estep v. United States, 327 U.S. 114 (1946)..................  22
Graves v. United States, 352 F.2d 878 (9th Cir. 1958). . 12,18,25
Green v. United States, 365 U.S. 301 (1961)..................  37
Heard v. Gomez, 321 F.2d 88 (5th Cir. 1963) affirming

per curiam 218 F. Supp 228 (S.D. Tex. 1962)..........  30,34
House v. Mayo, 324 U.S. 42 (1945)............................  31
Leach v. United States, 334 F.2d 945 (D.C. Cir. 1964)........  39
Leino v. United States, 338 F.2d 154 (10th Cir. 1964). . . . 32,33
MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960)..............  31
Meeks v. United States, 259 F.2d 328 (5th Cir. 1958)......... 20
Politano v. Politano, 262 N.Y.S. 802 (1933)..................  40
Powell v. Alabama, 287 U.S. 4 5 .............................. 31
Reynolds v. Cochran, 365 U.S. 525 n. 12 (1961).............. 33
Rogers v. United States, 304 F.2d 520 (5th cir. i°62)........ 39
Ross v. United States. 38C 1960 (6th Cir, 1950) ........  27

ii -



Page
Steinberg v. United States, 162 F.2d 120 (5th Cir. 1947). . . 28
Sykes v. United States, 373 F.2d 607 (5th Cir. 1966) . . . .  12
United States v. Giessel, 129 F. Supp. 223 (D.N.J. 1955) . . 19
United States v. Karavias, 170 F.2d 968 (7th Cir. 1948) . . 37
United States v. Johnston, 318 F.2d 288 (6th Cir. 1963) . . 33
United States v. Rundle, 230 F. Supp. 323 (E.D. Pa. 1964),

aff'd 341 F.2d 303 (3rd Cir.), cert, denied 381 U.S.
944 (1965)..............................................  34

United States v. Tenenbaum, 327 F.2d 210 (7th Cir. 1964) . . 38
United States v. Williams, 254 F.2d 253 (3rd Cir. 1958). . . 38
United States v. Wiley, 267 F.2d 453 (7th Cir. 1959) . . . .  39
Venus v. United States, 368 U.S. 345 (1961)............  12,15,18
Ward v. United States, 344 U.S. 924 (1953) . . . . .  12,18,24,25
Weems v. United States, 217 U.S. 349 (191C)................  40
White v. Ragen, 324 U.S. 760 (1945)........................  32
Williams v. United States, 332 F.2d 36 (7th Cir. 1964) . . .  33

Other Authorities
Title 50, Appendix, U.S.C. §462...............  1,13,22,23,25,26
Federal Rule Criminal Frocedure, R. 32 ..................  36,37
Selective Service System, Legal Aspects of Selective

Service, §55 (1963)....................................  41
The Selective Service, 76 Yale L.J. 160 (1966)............  41
The Selective Service System, 114 U. Pa. L. Rev. 1014 (1966) 41



STATEMENT

Appellant, Barry Jerome Wallace, a Negro, appeals from his 
conviction, for two counts of violating 50 App. U.S.C. §462, and 
sentence of 10 years imprisonment and $20,000 fine imposed by the 
United States District Court for the Southern District of Georgia 
on February 15, 1967.

On November 9, 1966, a grand jury of the Southern District of 
Georgia returned an indictment charging that Wallace (1) did fail 
and neglect to keep his local Selective Service Board informed 
as to his address; and (2) did fail and neglect to comply with an 
order to report for induction;

THE GRAND JURY CHARGES;
On or about August 29, 1966, BARRY JEROME 

WALLACE, whose further and other names are to the 
Grand Jury unknown, and who being then and there 
a registrant under the Universal Military and 
Training Service Act of 1948 with the Selective 
Service System Board No. 20, of Chatham County,
Georgia, did, in Chatham County, within the Southern District of Georgia, unlawfully, wilfully 
and knowingly fail and neglect to perform a duty 
reauired of him under and in the execution of the 
Universal Military and Training Service Act and 
the rules, regulations and directions duly made 
pursuant thereto, in that the defendant, 3arry 
Jerome Wallace, did fail and neglect to keep his 
local board informed as to his current address 
in violation of Title 50, Appendix, U.S.C. Sec­
tion 462.

COUNT 2
THE GRAND JURY CHARGES;

On or about July 7, 1966, in the County of 
Chatham within the Southern District of Georgia, 
BARRY JEROME WALLACE, the defendant, unlawfully.

1



wilfully and knowingly did fail and neglect to 
perform a duty required of him under and in the 
execution of the Universal Military Training and 
Service Act and the rules, regulations, and 
directions duly made pursuant thereto, in that 
the defendant, Barry Jerome Wallace, did fail and 
neglect to comply with an order of his local board 
to report for induction into the armed forces of the United States in violation of Title 50, Appendix,
U.S.C. Section 462 (R. 6).

On December 7, 1965 Wallace took an army physical examination 
(R. 38, 90). He was found "acceptable" to the army on March 22,
1966 (R. 38). In response to an induction notice he reported to 
Fort Jackson, South Carolina as directed for induction into the 
Armed Forces on May 9, 1966 (R. 39, 81), but, because of a wound 
on his arm, the army refused to accept him for service (R. 43, 81, 
106, 107). The Sergeant in command gave him a bus ticket and 
said "You are going home for a month" (R. 81, 108, 109).

Wallace returned home to Savannah, Georgia where he lived 
at 512 West 33 Street with his mother (R. 69). On May 14, he left 
Savannah to continue his work with the Southern Christian Leadership 
Council (SCLC), telling his mother to forward his mail to^SCLC 
headquarters at 563 Johnson Avenue in Atlanta (R. 50, 82).
Wallace worked for SCLC as a civil rights field worker who attempted 
"to get people to vote" (R. 72, 76). The record amply reveals that 
this work necessarily involved continuous "traveling around to 
different places" in the South (R. 76, 85, 96, 97). For his work

1/ At the beginning of his trial, the United States Attorney 
erroneously referred to Wallace's employer as "the SNCC 
organization" (R. 25).

2



Wallace received $50.00 every two weeks as a subsistence wage 
(R. 65).

A month passed and Wallace neither received any communication 
from the army or his local Selective Service Board (R. 44, 83, 84). 
He testified in his own behalf that he expected the people at 
Fort Jackson to send him "a check or bus ticket or papers to get 
back over there" and that he had asked his mother to immediately 
forward any mail to his Atlanta forwarding address "and I would 
come back home and go over there" (R. 98, 109).

On June 21, 1966, the local Board sent an induction notice 
for July 7, 1966 to Wallace's home address at 512 West 33 Street 
(R. 37, 41) where it was readdressed and sent unopened to the 
Atlanta forwarding address by Wallace's sister (R. 71). Nellie 
Mae Wilder, Barry's mother, did not see the notice. At about this 
time - "the latter part of June" - Mrs. Wilder moved to 1803 
Reynolds Street (R. 70, 71). Barry Wallace, in the field with 
the SCLC, did not know at the time of the move (R. 71).

"On or about" July 10, 1966 (R. 83, 84, 112), probably
2/July 8 - but after July 7 - petitioner received mail forwarded 

from Atlanta while working around Albany, Georgia (R. 51, 83, 84, 
99, 103). Included in the mail was the July 7 induction notice. 
Having no money at the time, Wallace telephoned the local board 
collect, but the call was refused (R. 84, 85, 97, 113). He 
believed that the call was made on Friday because on Saturday

2/ The pertinent days and dates were July 8 (Friday), July 9 
(Saturday) and July 10 (Sunday).

3



Wqllace called his local board again but it was closed for the 
weekend (R. 85, 97, 114). The next day, Sunday, (July 10th) he 
left Albany for Webster County, about 20 miles away (R. 97).

Wallace called his local Board on Monday, July 18, and
3/reached Mrs. Nueslein, a clerk (R. 37, 38, 51, 85, 99, 113). He 

explained why he had not called sooner, saying that he had been 
driven to Webster County, a rural area, where no phone was avail­
able, and the family that he stayed with did not have a car (R. 115). 
Wallace also stated that he knew that he would have to wait for the 
next draft call - which came monthly - so that he did not believe 
it was necessary to speak with his Board immediately (R. 114, 115). 
After Wallace advised Mrs. Nueslein that he planned to work in and 
around Albany for three or four weeks (R. 100), she suggested that 
petitioner "get a transfer to Albany, Georgia, so I wouldn't have 
to come back to Savannah for induction, that I could get inducted 
in Albany, Georgia, and on my next trip into Albany I went down to 
the local board" (R. 85, 100, 101). Although the government did 
not call Mrs. Nueslein to testify another Board clerk, Mrs. Evans, 
corroborated that Wallace requested a transfer so that he could 
report to Albany (R. 37, 39). Subsequent to the phone conversation 
on the 18th Wallace checked with the Albany Board clerk but was 
told "that she could not do anything at all until she received my 
records from Savannah, from the local service board" (R. 86). In 
the belief that the Savannah Board was sending his records, Wallace

3/ Mrs. Nueslein is also referred to as "Miss Newsome" in the record.

4



J  I

left the address and telephone number where he was staying in 
Albany, the Harris family, 635 Whitney Street, with the Albany 
Board (R. 51, 116). He had given the same address to Mrs. Nueslein 
during their conversation on July 18 (R. 57). After receiving 
assurances that the Albany Board would contact him when his papers 
arrived from Savannah (R. 51, 116), Wallace resumed his work for 
SCLC (R. 116).

As a result of the misunderstanding between Wallace and the 
two boards as to how the transfer of records was to be accomplished, 
the Savannah local Board sent a notice to Wallace on July 20, 1966 
advising him that action would be taken "if he did not comply with" 
the enclosed order by July 27, 1966. The government did not intro­
duce the order or testimony concerning its contents (R. 39, 41).
It was sent to 512 West 33 Street, since Wallace's mother had 
failed to tell the Board of her change in address (R. 70, 71).
This notice was received by her in "latter July" and opened (R. 72). 
After reading the contents she requested another son to try to 
contact Barry through the SCLC office in Atlanta (R. 72).

Barry Wallace was reported delinquent on August 11, 1966 
(R. 40). Two weeks later Barry's brother located him in Atlanta 
to tell him that the F.B.I. was looking for him (R. 86). Wallace 
returned to Savannah the next day, Friday, August 26th, at 
approximately 6:00 P.M. (R. 39, 41, 51, 86, 87, 96). Knowing the 
local Board was closed during the weekend (R. 88) Wallace waited 
until Monday to go to the Board (R. 87, 93). After being told by 
the Board clerk that his case "was out of our hands" (R. 37, 41 
87, 93) he expressed a desire to see the F.B.I. (R. 93). The clerk

5



phoned the F.B.I., but when the agent did not arrive in a half an 
hour Wallace left the Board office in order to see his immediate 
family whom he had not seen since his return to Savannah (R. 88,
93, 117).

The next day at 8:30 A.M. (R. 47), appellant voluntarily 
went to the local F.B.I. office and waited to be interviewed by 
Agent Salpikas (R. 53, 55). Salpikas had begun his investigation 
of petitioner the day before, August 29, 1966. He had first 
visited the address listed by the local Board as his current 
address, 512 West 33 Street, and had not found Wallace (R. 45).
At the interview the next day Wallace gave his address as 1304 
Reynolds Avenue (R. 47), which was incorrect although Salpikas 
admitted that Wallace said that he "wasn't sure" of the address 
(R. 54, 55, 91). Mrs. Wilder testified that when the F.B.I. found 
her at work, "they said that v/hen Barry came to them he told them 
that he wasn't sure of the right number, but he told them where I 
worked and I gave them the right address" (R. 73). Further 
evidence of Wallace's confusion as to his new address is shown by 
the fact that on September 23, 1966 a telegram from the SCLC in 
Atlanta containing $56 in bail money arrived originally addressed 
to Wallace at 1103 Reynolds Street, the wrong address (R. 65, 66, 
73, 74, 75, 95). The telegram was the result of a letter from 
Wallace to Hosea Williams of the SCLC in Atlanta, telling of his 
arrest and requesting money for a bail bond (R. 95). Wallace's 
confusion apparently stemmed from the fact that he had never been 
told his new address by his family for a girl from Savannah had

6 -



only told him that his family had moved to 34 and Reynolds (R. 80, 
92). VJhen Wallace returned home on August 26, 1966 he found his 
home only because he stood on the corner of 34 and Reynolds "and 
then my little sister came out the door and grabbed me and I went 
in the house. . ." (R. 95).

After his interrogation by Agent Salpikas, Wallace voluntarily 
gave the agent a signed statement describing his work during the 
past few months and his efforts to clarify his status with the 
Board (R. 28, 29, 30). The statement concluded, "I had made no 
attempt to evade the draft and will be willing to serve in the 
Armed Forces if inducted" (R. 51, 52). Under oath at trial peti­
tioner repeated his willingness to be inducted {R. 89), and denied 
any intent to either fail to keep the local Board informed of his 
current address or fail and neglect to report for induction (R. 91). 
He was asked:

"Q. Now, the only reason that you didn't 
report is that you didn't have the notice at 
that time?

A. That's right. I didn't get the notice 
until after I was supposed to report.

Q. Now, are you ready to get into the 
draft now?

A. Yes, sir."
Appellant was brought before a United States Commissioner on 

September 7, 1966 at which time he was found "financially unable to 
obtain counsel" and Attorney Thomas F. Walsh was appointed to 
represent him (R. 5). The grand jury returned a true bill on 
November 9, 1966 (R. 6).

7



case
On February 14, 1967, the United States Attorney called this 
"not for trial but for announcement" because there has been some 

question about counsel (R. 13) and because "I just wanted to be 
sure when we called this case for trial, Judge, he won't come up 
here and say 'my lawyer is in Atlanta'" (R.15). Mr. Walsh then 
stated to the court that Wallace had "been in touch" with the 
American Civil Liberties Union but "I was appointed to represent 
him" (R. 14). The court then interrogated Wallace as follows 
(R. 15):

THE COURT: Listen here, Boy, you have not got
any other lawyer besides Mr. Valash (sic) is 
that correct?
THE DEFENDANT: He is representing me now.
THE COURT: Well, he is the only lawyer that
is representing you?
THE DEFENDANT: Yes, sir.

On the following day, February 15, appellant decided that he 
desired to be represented by the Civil Liberties Union. He had 
first spoken with attorneys of the American Civil Liberties Union 
in Atlanta, Georgia in December, 1956, but was advised at that time 
that the ACLU was not in a position to determine whether they could 
represent him. The Union had, however, written a detailed letter 
to the United States Attorney on Wallace's behalf in December, 
which had apparently prompted the "announcement" of the case the 
day before trial (R. 25) .

8



When appellant first learned of the trial (about a week before 
the date set by the district court), he again contacted the Atlanta 
office of the Civil Liberties Union, and "they said they couldn't 
take my case at this time, that they had another case in another 
town in Georgia on yesterday and that if I could get it postponed 
for about a week they would come down and take it" (R. 24-26).

On February 15, 1967, prior to trial, appellant requested that 
the district court continue the trial for about a week so that he 
could be represented by an attorney from the American Civil Liberties 
Union. He indicated that he had "changed my mind" about representa­
tion by Mr. Walsh. The United States Attorney's office did not 
oppose the request for a continuance but stated that the Civil 
Liberties Union had knowledge of the case since December 2, 1966.
The district court declined to postpone the trial "for the simple 
reason that you may come here next week and say you have changed 
your mind again and want the Civil Union or some organization."
The court also stated: "I gave you a lawyer, and you don't like
the lawyer I gave you. Now you could be putting this case off 
indefinitely." Wallace stated "I didn't have a lawyer then" and 
"I am not going to change my mind again," but the court ruled "I am 
going to try you." (R. 24-26).

Also on February 15 appellant plead not guilty to both counts 
of the indictment and was tried before a jury of the Southern 
District and convicted of both counts.

On February 22, 1967, the District court admitted appellant to 
bail in the sum of $20,000. Unable to make bail appellant was com­
mitted first (on February 15th) to the Chatham County Jail, Savannah,

9



Georgia, and on March 27, 1967 to the Federal Correction Institution 
at Tallahassee, Florida. A motion for reduction of bail was filed 
before the district court on May 8, 1967. It has not been acted 
upon at the time this brief is written.

On February 21, appellant filed a timely motion for new trial 
which the district court denied on April 25, 1967. On May 5, 1967, 
appellant filed a notice of appeal to this Court and the district 
court granted 3eave to proceed in forma pauperis.

10



Specification of Error
1. The court below erred in failing to rule that appellant's 

conviction is not supported by sufficient evidence.
2. The court below erred in failing to charge the jury

(1) that a finding of criminal intent is necessary to convict and
(2) as to the meaning of criminal intent.

3. The court below erred in refusing to continue appellant's 
trial for a period of one week so that he might be represented by 
retained counsel.

4. The court below erred in not giving appellant a meaningful 
opportunity to present mitigating information before sentencing, 
and in imposing an excessive sentence.

11



ARGUMENT
I

The Judgment Below Must Be Reversed 
Because The Convictions Are Not 
Supported By Sufficient Evidence

The proper standard for review of the sufficiency of evidence 
in a criminal prosecution has most recently been set out by this 
Court in Sykes v. United States, 373 F.2d 607, 609 (5th Cir.
1966) :

Our duty in questioning the sufficiency of 
circumstantial evidence is to take the view of 
the evidence most favorable to the government, 
and to question whether the reasonable inferences 
to be drawn from such evidence are inconsistent 
with every reasonable hypothesis of innocence.

That standard has been applied to a prosecution under the
Selective Training and Service Act of 1940 (now the Universal
Military Training and Service Act) upon review in this Court.
"The evidence is as consistent with innocence as with guilt, and
fails signally to show willful intent, and we are not willing to
convict the defendant on the evidence as disclosed by the record
here." Candler v. United States, 146 F.2d 424 (5th Cir. 1944).

Tested in the light most favorable to the government, the
evidence upon which it relies to support appellant's conviction
is clearly not "inconsistent with every reasonable hypothesis of
innocence" as to each of the charges upon which appellant was
indicted. See Bartchy v. United States, 319 U.S. 484 (1943);
Ward v. United States,- 344 U.S. 924 (1953); Venus v. United
States, 368 U.S. 345 (1961)(incorrectly reported in Lawyer's
Edition Second); Graves v. United States, 352 F.2d 878 (9th Cir.
1958).

12



Alleged Violation of the "Current Address" Rule

The first count of the indictment against appellant charged 
that he did "wilfully and knowingly, fail and neglect to. . . 
keep his local [Selective Service System] board informed as to 
his current address" in violation of 50 App. U.S.C. §462, "On 
or about August 29th, 1966."

The uncontested evidence shows that in May, 1966 the files 
of Selective Service System Board No. 20 of Chatham County, 
Georgia showed appellant's current address to be 512 West 33rd 
Street, Savannah, Georgia. It was not disputed that at the time, 
appellant resided at that address with his mother. In the latter 
part of May, appellant left Savannah to continue his field work 
for the Southern Christian Leadership Conference. It is unques­
tioned that the nature of appellant's employment required him 
to travel long distances at frequent intervals, throughout the 
South, and the government does not contend that appellant could 
have predicted his address during the next two months when he 
left Savannah.

Before leaving, appellant gave his mother the Atlanta 
address of the Southern Christian Leadership Conference head­
quarters and instructed her to forward any papers sent to him at 
her home to Atlanta, because the organization's headquarters 
would always be cognizant of his location and would forward his 
mail to him. Appellant's mother moved to 1803 Reynolds Street, 
Savannah, toward the end of June, but appellant was unaware of 
her change of address. Despite the move, the record shows that

13



the "512 West 33rd Street" address was sufficient and that 
communications fi*om the local Board mailed to that address did 
reach appellant. On June 21/ 1966, the local Board mailed 
appellant an order to report for induction on July 7. Although 
appellant's mother had apparently moved previous to the date of 
mailing, she testified that in late June her daughter called her 
at her place of employment to tell her that a notice from the 
local Board had arrived in the mail, and that her daughter 
readdressed the envelope to the Atlanta SCLC headquarters and 
placed it in the mail for forwarding. The notice was subsequently 
sent on to him from Atlanta, and appellant received the induction 
notice at Albany, Georgia on or about July 8th, 9th or 10th, 1966.

Subsequently, appellant attempted to advise his local Board 
by telephone of his whereabouts, and to have his records trans­
ferred to the Albany, Georgia Board for processing and induction. 
Due to the confusion as to how the transfer was to be accomplished, 
Wallace's records were never sent to Albany. When he first 
learned from his brother that the FBI or the federal marshal had 
been looking for him, he returned immediately to Savannah, 
arriving Friday evening, August 26, 1966. The following Monday 
morning, appellant reported to his local Board and was told that 
the matter was out of their hands, that he had already been 
classified a delinquent, and that there was nothing his local 
Board could do. On that morning, August 29, 1966, appellant was 
apparently not asked his current address nor did he volunteer 
a false address to the local Board. The Assistant Clerk, Mrs.

14



Evans, of the local Board, testifying at appellant's trial from 
Board records, stated that the file contained an oral notation 
that appellant came into the local Board office on August 29,
1966 and that as of that date the address posted in his file was 
512 West 33rd Street. Appellant testified on cross-examination 
that he spoke with Miss Nueslein, not with the Assistant Clerk.

These facts are at the very least as consistent with innocence
of the charge as with guilt. The sum of the evidence is that the
local Board had at all times, both prior to August 29, 1966 and
subsequent thereto, an address in its files at which, or through
which, Wallace could receive his mail, either because it would
be forwarded through the SCLC Atlanta office or because he would
be at home with his mother. The Selective Service Regulations
require no more. §1641.3 provides:

It shall be the duty of each registrant to 
keep his local board advised at all times 
of the address where mail will reach him.
(Emphasis Supplied)

Furthermore, the propriety of appellant's compliance with the
terms of the Act and Regulations was passed upon by the Supreme
Court in Bartchy v. United States, 319 U.S. 484, 488, where this
Regulation was construed:

We think the Government correctly interprets 
the Act, §11 [now 50 U.S.C. §462], and the 
regulation, §641.3 [now §1641.3], not to 
require a registrant who is expecting a 
notice of induction to remain at one place 
or to notify the local board of every move 
or every address, even if the address be 
temporary.

See Venus v. United States, 368 U.S. 345 (1961), reversing 287 F.2d 
304 (9th Cir. 1960)(incorrectly reported in Lawyer's Edition Second

15



In answering the government's claim that "at his peril the
registrant must at short intervals inquire at his last address
given to the board" for mail. Justice Reed said:

The regulation, it seems to us, is satisfied 
when the registrant, in good faith, provides 
a chain of forwarding addresses by which mail, 
sent to the address which is furnished the 
board, may be by the registrant reasonably 
expected to come into his hands in time for 
compliance. (319 U.S. at 489)

The "chain" in Bartchy was the office of the National Maritime 
Union in Houston, the address given his board, with instructions 
to forward mail to the union office in New York, where it would 
then be given him either aboard ship or at the New York office.

The "chain" in this case was never any longer. The first 
forwarding arrangement ran from Wallace's mother, the address 
given the Board (who continued to receive mail at the new 
address) to the SCLC headquarters in Atlanta, and thence to 
Wallace. And appellant Wallace, unlike seaman 3ar^chy, was never 
away from places to receive mail for long periods of time.

Nor may appellant's failure to volunteer to the local 
Board his mother's new Savannah address on August 29 be 
interpreted as a wilful failure to keep his Board advised of 
his current address at which mail would reach him. First, the 
record clearly shows that appellant was not certain of the new 
address, and when he gave it incorrectly to FBI agent Salpikas 
it was with the qualification that he was not certain of the 
address. Although he had been in the house for a few days, he 
used the wrong street number in writing to SCLC to request bail

16



money after he was arrested. He testified that he knew the 
location of the house only as "34 and Reynolds"; that upon his 
arrival in the city on August 26 he stood on that corner until 
his sister happened to see him and bring him into the house.
Under such circumstances, had appellant volunteered to try to 
give his Board the new address, he might well have given them a 
false one.

Second, such a step was unnecessary because appellant was 
already aware that he would receive mail sent to him from the 
local Board, either at his mother's house in Savannah or through 
the Atlanta SCLC office. He had no reason to believe that his 
Board did not have a current address at which mail would reach 
him.

The evidence shows affirmative action by the appellant 
to keep in touch with his local Board by an address at which 
mail could reach him and by telephone and in person whenever 
he learned of any difficulties. The penalty for the failure of 
Wallace's forwarding system, made in good faith and well-suited 
to his particular needs while traveling on his job, is the present 
indictment against him. But the evidence shows neither an actual 
failure by appellant to keep his Board informed of his address 
where mail could reach him, nor, in any event, any evidence of 
wilfulness as required by both the indictment and the statute. 
Indeed "on or about August 29, 1966" the date charged in the 
indictment Wallace was in the process of actively and voluntarily 
seeking to clarify his status by visiting his Board and the F.B.I.

17



To infer wilfulness from the mere use of a mail forwarding
arrangement similar to that approved by the United States Supreme
Court in Bartchy, supra, is of course impermissible. There was
no sufficient evidence to support the judgment of conviction on
the first charge under the indictment. Ward v. United States, 344 
U.S. 924 (1953); Venus v. United States. 368 U.S. 345 (1961). 
Alleged Failure to Report for Induction

The second count of the indictment charged that "on or about 
July 7, 1966," appellant "did fail and neglect to comply with an 
order of his local board to report for induction into the Armed 
Forces of the United States in violation of Title 50, Appendix, 
U.S.C. Section 462."

It is not controverted that the order for induction was 
mailed June 21, 1966; that it was forwarded to appellant through 
the Atlanta, Georgia office of the Southern Christian Leadership 
Conference, and that appellant received the notice after the time 
at which he was to report had passed. It is also uncontradicted, 
and corroborated by Board records, that after receiving the 
notice a day late Wallace made what he thought was a valid 
arrangement to have his papers transferred to Albany, Georgia, 
in order that he could report for induction, and that he 
requested the Albany local Board notify him through an address 
and telephone number which he left with them.

This charge cannot be sustained on such evidence. A 
strikingly similar situation was presented in Graves v. United 
States, 252 F.2d 878 (9th Cir. 1958) . There, the defendant did 
not learn of notices to report for induction on October 6 and

18



October 13 until October 27, because he had been working away
from home. The Court of Appeals held the evidence insufficient
to sustain a conviction (252 F.2d at 881):

We think that the Government's proof in 
this case falls short of showing that 
appellant knowingly failed and neglected 
to report for induction into the armed 
forces, as notified and ordered to do, 
that is to say, on October 13, 1955. The 
sanctions cf the Act are directed only 
against one "who in any manner shall know­
ingly fail or neglect or refuse to perform 
any duty required of him under or in the 
execution of this title *
"[T]he statute requires something more than 
mere failure, for the accused must 'knowingly 
fail or neglect to perform' a statutory duty."
United States v. Hoffman, 2 Cir., 137 F.2d 416,
419. The court held that this language meant 
that the "usual criminal intent" must be 
proven.

Cf. United States v. Giessel, 129 F. Supp. 223 (D.N.J. 1955).
The charge that appellant wilfully and knowingly neglected 

to report for induction into the Armed Forces must fall with 
the charge that he knowingly failed to keep his Board informed 
of his address. The government apparently rested its case upon 
the completely unsupported basis that Wallace deliberately 
arranged to have his induction notice routed too slowly to be 
received in time. If Wallace's good faith forwarding arrange­
ment, so similar to that in Bartchy, supra, is not illegal, then 
the government's second charge falls of its own weight. No 
evidence by the government shows any desire by appellant to evade 
induction. Wallace, on the other hand, showed that he had 
reported for induction at Fort Jackson only two months earlier,

19



and was rejected because of an arm wound. In addition, the 
appellant has steadily maintained, both by affirmative acts and 
by statements to the F.B.I. and on trial, that he is ready and 
willing to be inducted into the Armed Forces.

This Court has undoubted discretion to review the sufficiency 
of the evidence, in order to prevent a miscarriage of justice, 
although appellant's appointed counsel did not renew his motion 
for acquittal at the close of all the evidence, Meeks v. United 
States, 259 F.2d 328 (5th Cir. 1958). It is respectfully sub­
mitted that the following considerations support exercise of 
that discretion in this case:

(1) Appellant has been sentenced to the maximum penalty 
of fine and imprisonment, without the district court having the 
benefit of a pre-sentence report, for conduct which barely rises 
to the dignity of a criminal charge?

(2) A few months prior to his alleged criminal acts he 
voluntarily reported for induction in the Armed Services and 
has consistently maintained his willingness to serve;

(3) The record does not contain direct evidence of wilful­
ness or criminal intent but does contain direct evidence of 
mistake, misunderstanding, and good faith;

(4) Appellant has been forced to remain incarcerated since 
February 15, 1967 by reason of his poverty and the high bail 
set by the district court. Should this Court reverse on some 
ground other than insufficiency of the evidence, his incarceration 
could be continued pending re-prosecution even though the evidence 
will not ultimately support a criminal conviction;

20



(5) Appellant’s occupation as a civil rights worker may 
have influenced the jury in ways no less real for their being 
intangible.

21



II
The Court Below Erred By Totally 
Failing To Charge The Jury As To 
Criminal Intent.

Because of the heavy sentence of fine and imprisonment 
punishing appellant for conduct which it is respectfully submitted 
does not ever rise to the dignity of a criminal charge, this brief 
raises a number of errors meriting reversal of the judgment. The 
court, however, need not reach these questions if it agrees that 
the verdict is not supported by the evidence as urged in Argument I, 
supra. In this argument appellant urges that the district court 
erred by failing to instruct the jury (despite timely objection) 
that criminal intent was an essential element of the offense and in 
any manner to define criminal intent.

50 App. U.S.C. §462 (a) "makes criminal wilfull failure to 
perform any duty required of a registrant" Estep v. United States, 
327 U.S. 114, 119 (1946) for the statute speaks of "knowingly" 
failing or neglecting or refusing to perform certain duties. The 
two count indictment asserted that Barry Wallace did "wilfully, 
knowingly, fail and neglect to perform a duty required of him . . . 
in that . . . [he] did fail and neglect to keep his local board 
informed as to his current address. . . [and wilfully and knowingly 
did fail and neglect to . . . comply with an order of his local 
draft Board to report for induction into the Armed Forces of the 
United States. , (R. 6).

At the close of the evidence the court charged the jury (see

22



R. 119-26). First, the court read the indictment; second, the court 
charged as to the meaning of reasonable doubt; third, the court 
defined circumstantial evidence; fourth, the court instructed jurors 
to weigh demeanor of witnesses heavily; fifth, the court charged 
that the defendant was entitled to a fair trial; sixth, the court 
read portions of §452, without comment; finally, the court explained 
why criminal proceedings in the Southern District of Georgia are 
conducted in Savannah.

At the conclusion of this charge, appellant’s counsel unsuc­
cessfully objected to the court's failure to include four written 
charges.

These proposed charges all related to the criminal intent 
required to make out a violation of §462 (R. 18-21):

MR. WALSH: Judge, for the record, I want to object
and except to the failure to charge from my request of 
charge, I believe they are numbered 2, 3, 4 and 5. These 
charges. No. 2, has to do with the word "knowingly", what 
that carries and No. 3, as to do with his knowledge of the 
existence of the obligation to furnish the address and a 
wrongful intent to evade that obligation, and No. 4 is 
that when he is charged with knowingly failing or neglecting 
to report for induction he cannot be convicted under the 
indictment - of a failure of neglect to perform a different 
duty at a different time which is for anything that may 
have been done prior or subsequent. Number 5 was the same 
thing as to the address on refusing to perform any duty required of him under the Military Training and Service Act. 
He cannot be convicted under an indictment of a failure and 
neglect or refusal to perform a different duty at a dif­
ferent time.

THE COURT: Well, I think this: I read them over. I
think I charged the essence of what you say in different 
words, I think that it was a legal charge. I charged it 
just as fair as I knew how and I charged what he contends 
in other language but it was the same reason and with that 
I will overrule your motion.

23



MR. WALSH: All right, sir. I wanted to make an
exception. . . (R. 127).
By failing to instruct the jurors that to convict they must 

find culpability, i.e., specific criminal intent, and to define 
that intent the district court erred fundamentally, for failure to 
so instruct permitted the jury to convict appellant on the basis of 
merely innocent failure or neglect to do the acts specified in the 
indictment, Ward v. United States, 344 U.S. 924 (1953). In this 
case the United States must prove beyond a reasonable doubt that 
culpable violations of law took place and the jury must be so 
instructed:

The sanctions of the Act are directed only 
against one "who in any manner shall knowingly 
fail or neglect or refuse to perform any duty 
required of him under or in the execution of this 
title *

"[T]he statute requires something more than 
mere failure, for the accused must ’knowingly fail or 
neglect to perform’ a statutory duty." United States v. Hoffman, 2 Cir., 137 F.2d 416, 419. The court 
held that this language meant that the "usual criminal 
intent" must be proven.

In United States v. Chicago Express, 7 Cir., 235 
F.2d 785, 736, the court was dealing with similar 
language stating: "r7hoever knowingly violates any
such regulation shall be fined not more than $1,000 
or imprisoned not more than one year or both." The 
court said (at page 786): "By using the word 'knowingly'
in [18 U.S.C.A.] §335, we think Congress, while describing 
a state of mind essential for responsibility, removed 
violations of the relevant regulations from the classi­
fication familiarly known as offenses malum prohibitum, 
public welfare, and civil offenses." In thus indicating 
that such language carried a requirement of culpable 
intent as a necessary element of the offense, the court 
quoted from the language of the Court in Boyce Motor 
Lines v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 
332, 96 L.Ed. 367. In the latter case the Court referred 
to a similar statute as requiring proof that the accused 
"willfully neglected to exercise its duty."

24



Graves v. United States, 252 F.2d 878, 881 (9th Cir. 1958).
In Ward v. United States, 195 F.2d 441 (5th Cir. 1953), 

reversed, 344 U.S. 924 (1953) this Court dealt with a conviction 
under §462 after a challenge to the trial court's charge as to 
motive and intent had been raised. The court affirmed on the ground 
that the trial court "stated that the lav; sought to punish a person 
only if he knowingly failed or neglected his duty; that an actual 
knowledge of the existence of an obligation and a wrongful intent to 
evade it is of the essence." But the United States Supreme Court 
reversed on the ground that the record did not support that a 
knowing violation took place. Here, the district court never sug­
gested that the jury must find "actual knowledge of the existence
of an obligation and a wrongful intent to evade it." The court

4/never directed itself to the question.

4/ In Ward this Court approved the following charge:
•<* * * court accordingly instructs the jury

that the Act does not denounce as criminal, every failure 
to perform a duty imposed by the statute or regulations, 
but only seeks to punish a person 'who shall knowingly 
fail or neglect' his duty. There must be a specific wrongful intent. An actual knowledge of the existence 
of an obligation and a wrongful intent to evade it is of 
the essence. Before this defendant can be found guilty 
this jury must be convinced beyond a reasonable doubt 
not only that he has failed to keep his board advised 
of the address where mail would reach him but also that 
he knowingly failed to do so. Unless the element of knowledge on the part of the defendant is found by you 
as a fact to have existed, or if you have a reasonable 
doubt of its existence, it will be your duty to acquit 
the defendant. The intent and motives of the defendant 
are the most important factors in this case." (195 F.2d 
at 444, note 2)

25



The only reference in the charge to the standard of criminal 
intent required by §462 was repetition of the words "wilfully, and 
knowingly" when the court read the indictment and the statute to 
the jury. This hardly satisfies the court's heavy responsibility 
to instruct the jury as to the proper legal standard of intent to 
be applied to the specific dates involved. There is no way a juror 
could determine from the language of the statute or the indictment 
that "knowingly" referred to specific wrongful intent to evade a 
known obligation which had to be proven by the government beyond a 
reasonable doubt. A layman might easily conclude that a knowing 
violation was consistent with good faith, mistake, and unintentional 
conduct.

Appellant's counsel have been unable to find any case approving 
a charge which totally failed to set out that a finding of specific 
criminal intent was required or to define that intent. On the 1965)
other hand, in Byrd v. United States. 352 F.2d 5)0, 572-74 (2nd Cir’y  
the charge included a definition of "knowingly" but nevertheless 
the second circuit found "plain error" because the the trial judge 
in his charge "failed to explain the relevance of criminal intent 
to the other factors in the case": "By failing specifically to
instruct the jury that criminal intent was an essential element of 
the offense, the court left what it did say about intent and the 
act being knowingly committed, unrelated to the other elements of 
the crime and omitted any instruction that criminal intent was an 
element which the Government, to convict, was required to prove 
beyond a reasonable doubt. While it did not define criminal intent

26



as such, it did give one of the generally used definitions of 
•’knowingly' which in the circumstances of the case would have suf­
ficed, because a finding that one acts knowingly presupposes that 
he was apprised of all of the facts which constitute the offense.

'Ordinarily one is not guilty of a crime 
unless he is aware of the existence of 
all those facts which make his conduct 
criminal. That awareness is all that is 
meant by the mens rea, the 'criminal 
intent', necessary to guilt, * * *.'
'United States v. Crimmins, 123 F.2d 271,
272 (2nd Cir. 1941). . .'

"We conclude that the court's failure to explain the relevance 
of criminal intent to the other factors in this case and to describe 
it as one of the essential elements of the offense, requiring, as 
such, proof beyond a reasonable doubt, was tantamount to no instruc­
tion at all on the subject. There was, therefore, plain error which 
requires reversal even though no exception was taken below to the 
charge as given. Screws v. United States, 325 U.S. 91, 107, 65
S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Gillilan, 288 
F.2d 796 (2nd Cir.), cert, denied sub nom. Apex Distributing Co.,
Inc. v. United States, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed. 2d (1961); 
United States v. Noble, 155 F.2d 315 (3rd Cir. 1946)." Byrd, supra.

The district judge also failed to comply with the requirement 
of Rule 30 of the Rules of Criminal Procedure. That rule makes it 
mandatory that the trial judge inform counsel before argument and 
the giving of instructions of his denial of requests for instruction- 
The purpose of the rule is to enable counsel to argue his case as 
effectively as possible. Ross v. United States, 180 F.2d 160, 165

27



(6th Cir. 1950), But see, Steinberg v. United States. 162 F.2d 
120 (5th Cir. 1947)(holding that it was not error to comply with 
the rule since +-he requests were properly refused) .

28



Ill
The District Court Erred In Refusing 
To Continue The Trial For One Week 
So That Appellant Might Be Represented 
By Retained Counsel Of His Own Choosing

On September 7, 1966, appellant, an indigent, was arraigned 
before the United States Commissioner in Savannah, Georgia. He was 
not then represented by counsel and the commissioner appointed Mr. 
Thomas Walsh to represent him "until relieved by order of the 
District Court" (R. 5). In December, 1966, Wallace spoke with 
lawyers of the American Civil Liberties Union in Atlanta, Georgia 
but was advised at that time that the ACLU was not in a position 
to determine whether they could represent him. The Union did, 
however, write a lengthy letter to the United States Attorney on 
Wallace's behalf (R. 24-26).

Shortly before his trial appellant again contacted the Atlanta 
office of the Civil Liberties Union, and "they said they couldn't 
take my case at this time, that they had another case in another 
town in Georgia on yesterday and that if I could get it postponed 
for about a week they would come dov;n and take it" (R. 24-26) .

On February 15, 1967, prior to trial, appellant requested 
that the district court continue the trial for about a week so that 
he could be represented by an attorney from the American Civil 
Liberties Union. He indicated that he had "changed my mind" about 
representation by Mr. Walsh. The United States Attorney's office 
did not oppose the request for a continuance but stated that the

29



Civil Liberties Union had knowledge of the case since December 2, 
1966. The district court declined to postpone the trial "for the 
simple reason that you may come here next week and want the Civil 
Union or some organization." The court stated that it had appointed 
Mr. Walsh to represent appellant, and that "I gave you a lawyer, 
and you don't like the lawyer I gave you. Now you could be putting 
this case off indefinitely." Wallace stated "I didn't have a 
lawyer then" and "I am not going to change my mind again," but 
the court ruled "I am going to try you" (R. 24-27).

The denial of a continuance under these circumstances cannot 
be squared with this Court's holding in Heard v. Gomez, 321 F.2d 
88 (5th Cir. 1963), affirming per curiam 218 F. Supp. 228 (S.D.
Tex. 1962). There, petitioner's retained counsel submitted a 
motion and affidavit stating that he was unable to appear because 
he was engaged in trial of a case in New York, and seeking a 
continuance until such reasonable time as he could appear. The 
motion was denied, a local attorney appointed to represent peti­
tioner, and the case was tried and petitioner convicted. The 
district court issued the writ of habeas corpus because of the 
opinion "that Gomez was denied the right of assistance of counsel 
of his own choice and that such was a denial of due process of 
law." (218 F. Supp. at 229.) In its per curiam opinion affirming 
the judgment, this Court stated (321 F.2d at 89):

. . .  we think it clear that the district 
judge was right, for the reason that he 
gave. . . . Powell v. Alabama, 287 U.S.
45, 53 S. Ct. 55, 77 L.Ed. 158.

30



See als.o, MacKenna v. Ellis, 280 F.2d 592 (5th Cir. I960); Argo v.
Wiman. 209 F. Supp. 299 (M.D. Ala.), aff'd 308 F.2d 674 (5th Cir.),

5/cert, denied 371 U.S. 933 (1962).
In Powell v. Alabama. 287 U.S. 45, 69, the Supreme Court said:

If in any case, civil or criminal, a 
state or federal court were arbitrarily 
to refuse to hear a party by counsel, 
employed by and appearing for him, it 
reasonably may not be doubted that such 
a refusal would be a denial of a hearing, 
and, therefore, of due process in the 
constitutional sense.

In Chandler v. Fretag, 348 U.S. 3, 10 (1954), the Court found 
that a "corollary to this principle is that a defendant must be 
given a reasonable opportunity to employ and consult with counsel" 
in a case involving a defendant who had requested a continuance so 
that he could engage the services of an attorney. The Court also 
cited its holding in House v. Mayo, 324 U.S. 42, 45 (1945) that it is 
enough that petitioner had his own attorney and was not afforded a 
reasonable opportunity to consult with him.

The Supreme Court has made it clear that "it is a denial of 
the accused's constitutional right to a fair trial to force him to

5/ In Argo, this Court approved the ruling of the district court 
that "the denial of Argo's motion for a short continuance or 
delay so that his retained counsel, Arthur Parker, could be 
located and be present, and the appointment of counsel who was 
not familiar with Argo's case, and the putting of Argo to trial 
with appointed counsel in the absence of his retained counsel 
was arbitrary action on the part of the trial judge to an extent 
that Argo . . . was denied his due process rights in a constitu­
tional sense." 209 F. Supp. at 302. The trial in that case had 
commenced in the morning with appointed counsel alone, and Argo's 
own counsel arrived that afternoon and did in fact participate 
in the remainder of the trial. Nonetheless, the writ of habeas 
corpus issued.

31



trial with such expedition as to deprive him of the effective aid 
and assistance of counsel." White v. Ragen. 324 U.S. 760, 764 (1945).

There may be circumstances where the orderly management of the 
judicial processes require that a judge put an accused to trial to 
assure that dilatory conduct on the part of the defendant will not 
thwart the administration of justice. See, e.g., Leino v. United 
States. 338 F.2d 154 (10th Cir. 1964)(refusal to grant a fourth 
continuance, sought to permit employment of new counsel, after the 
defendant had discharged both an appointed attorney and then a 
lawyer he had himself chosen). While "The right to counsel may not 
be used to play 'a cat and mouse game with the court,'" 338 F.2d at 
156, there is no showing on this record that the request for a first 
continuance of one week was for obstructive purposes. It is true 
that appellant agreed to be represented by Mr. Walsh at the 
"announcement" of the case the day before trial, but this change of 
mind does not show obstruction in the absence of objective factors 
demonstrating it.

The record merely shows that Wallace had sought the services 
of attorneys from the American Civil Liberties Union; that these 
attorneys had first indicated they were uncertain whether they 
could represent him and had, shortly before trial, expressed a 
willingness to represent Wallace if a postponement for about a week 
could be obtained. Wallace presented this request to the district 
court before trial although not at the "announcement" of the case 
on the day before trial. The United States Attorney offered no

32



opposition to the motion, and neither the government nor the Court 
in denying the motion referred to any particular need to hold the 
trial on February 15, 1967. The record fails to reveal that any 
delay had been previously requested by Wallace. The sole reason 
given by the district judge for his refusal to postpone the trial 
was the possibility that Wallace might seek another postponement. 
Clearly the Court had the power and discretion to handle such a 
situation when and if it occurred. Cf.. Leino v. United States, 
supra. The speculation that one may abuse the process of the Court 
at some future time is insufficient as a matter of law to justify 
a present denial of an acknowledged constitutional right to a 
retained attorney.

Appellant's constitutional right to effective assistance of 
retained counsel is in no way diminished by the fact that his 
court-appointed attorney may not have been incompetent or inept.
"It is significant that in Chandler [v. Fretag, supra] v/e did 
not require any showing that the defendant there would have derived 
any particular benefit from the assistance of counsel." Reynolds 
v. Cochran. 365 U.S. 525, 531 n. 12 (1961). Accord, United States 
v. Johnston. 318 F.2d 288, 291 (6th Cir. 1963); see also Williams 
v. United States. 332 F.2d 36, 40 (7th Cir. 1964)(dissenting 
opinion).

Nor did appellant v/aive his right to counsel. Although some 
courts have found an implicit waiver where a defendant discharges 
his attorney at the trial, such cases have uniformly involved

33



defendants who subsequently proceeded pro se, rather than seeking 
representation by previously-engaged private counsel. E.g., United 
States v. Rundle, 230 F. Supp. 323 (E.D. Pa. 1964), aff'd 341 F.2d 
303 (3rd Cir.), cert, denied 381 U.S. 944 (1965).

It should be noted that the courts in treating attempts to 
discharge counsel and to proceed pro se have always distinguished 
that situation from one where a continuance is required to secure 
the presence of a new attorney. See Dearinger v. United States.
344 F.2d 309, 312, n. 5 (9th Cir. 1965). As the court said in 
Dearinger in dealing with the issue of whether witnesses could be 
called against the advice of counsel: "the interest of an accused
in the selection of witnesses to be called in his behalf is obviously 
great. The interest of the court in denying Dearinger that privilege 
appears to have been slight." Id.. at 312. Clearly, this analysis 
applies with even greater force where the right to be represented 
by retained counsel is involved. So this Court ruled in Heard v. 
Gomez, supra, and so it should rule here in reversing the judgment 
below.

34



IV
The Trial Judge, In Imposing The 
Maximum Sentence On Both Charges, 
Failed To Conform To The Federal 
Rules Of Criminal Procedures And 
Abused His Discretion

The trial of this case took one day. The trial judge refused 
a continuance of only one week so that appellant could be repre­
sented by an additional counsel of his own choosing. As was 
pointed out above, the instructions the court gave to the jury 
were sparse and inadequate. The jury was out for only twenty 
minutes (R. 128), and returned with a verdict of guilty on both 
counts. The district court proceeded immediately to sentence 
the appellant to the maximum possible sentence under the law, 
that is, five years in prison on each count and a $10,000 fine 
on each count. After the clerk read the verdict, the following 
colloquy took place:

THE COURT: Come around. The jury heardthe evidence in this case and I don't see how 
they could have done otherwise. You had good 
representation. He is a good lawyer and he 
gave you splendid representation. He gave 
you good service, but it took more than a 
good lawyer to win this case because the 
evidence was there. I am not going to re­
hash it or say anything further. Nov;, I 
am going to sentence you to five years on 
each count and $10,000.00 on each count.
Now, you have ten —  how many days?

THE CLERK: Ten days.
THE COURT: You have ten days to appeal.

Have you got anything to sr-.y in furtherance of this case?
THE DSrSJSANT: No.

35



THE COURT: How is that?
THE DEFENDANT: No, sir.
THE COURT: All right, I sentence you to the

full penalty.
MR* WALSH: I am going to file an appeal,

Judge.
THE COURT: All right. Now, I thank you

gentlemen for your service and you are excused 
until Monday morning. We have got a heavy 
docket next week, so you all bring your bread 
and butter with you.

THE MARSHAL: Judge is that to run conse­
cutive or how?

THE COURT: I am sentencing him to five
years imprisonment and $10,000.00 on count 
one and five years imprisonment and $10,000.00 on count two, making a total of ten years 
imprisonment and $20,000.00. All right.
(R. 128-29)

Thus the court, in effect, first sentenced appellant to the
■fuii, penalty and then asked appellant whether he had anything to
say. Appellant urges that this procedure violated the Federal
Rules of Criminal Procedure. Rule 32(a)(1) states:

Before imposing sentence the court shall 
afford counsel an opportunity to speak on 
behalf of the defendant and shall address 
the defendant personally and ask him if he 
wishes to make a statement on his own behalf and to present any information in mitigation 
of punishment. (Emphasis added.)

The purpose of this rule is clear; it is to provide the 
defendant with an opportunity to present mitigating information 
so that the court may make a careful and considered determination 
of the sentence. It does not contemplate an empty formality tha+- 
only gives the appearance of such a careful consideration without 
the substance of it. It is clear that here the judge had already

36



decided the sentence he was going to impose. He announced that 
he was going to sentence appellant to the full penalty, five 
years on each count and $10,000.00 on each count. After making 
that announcement, his then asking the appellant whether he had 
anything to say was meaningless. Since the judge had already 
obviously made up his mind, appellant could not have been aware 
that the purpose of the request was to allow him to make a 
presentation that could affect the determination.

Indeed, the judge's question did not even make clear the 
purpose of his request; that is, he did not say in the language 
of the rule, or any approximation to it, that the appellant could 
present information "in mitigation of punishment." He merely 
asked whether he had anything to say "in furtherance of this 
case." Not surprisingly, Wallace answered no, since it appeared 
that the case was over and anything he might say would be super­
fluous. The failure of the district court to afford appellant 
a meaningful opportunity to present mitigating information thus 
violated the rule and requires resentencing. See, Green v .
United States, 365 U.S. 301 (1961); Cuozzo v. United States,
325 F.2d 274 (5th Cir. 1963).

The failure of the judge to conform with the requirement of 
Rule 32 was heightened by the lack of any pre-sentence investiga­
tion. It is true that it has generally been held that a pre­
sentence report is a matter left up to the district court's 
discretion and hence is not required, although it is desirable. 
See, United States v. Karavias, 170 F.2d 968 (7th Cir. 1948);

37



United States v. Williams, 254 F.2d 253 (3rd Cir. 1958). However, 
when the failure of the judge to require a pre-sentence investi­
gation and report is seen in the context of the sentencing 
procedure as a whole, it demonstrates clearly an abuse of 
discretion. The import of the Federal Rules with regard to 
sentencing is that the imposition of a sentence is to be a 
considered judgment on the part of the district court. Sentencing 
is after all the judicial act which is of greatest consequence 
to an accused. This means that the district court should weigh 
carefully various factors, such as the nature of the crime, the 
prior record of the defendant, the possibility of rehabilitation, 
the degree of criminal intent, etc. The purpose of a pre­
sentence investigation, as well as of the defendant's statement, 
is to provide the judge with the information needed for such a 
considered judgment.-̂  Here it is obvious that the district 
court took none of the above factors into consideration. The 
trial took only one day; there was no investigation or inquiry 
by the judge into appellant's circumstances. Compare, United 
States v. Tenenbaum, 327 F.2d 210 (7th Cir. 1964). The court 
simply imposed a sentence which, under the circumstances of the 
case, was incredibly harsh.

6/ The judgment that the sentence imposed was not carefully con­
sidered is reinforced by the fact that the marshal had to ask the 
judge to specify whether the sentences were to run consecutively 
(see colloquy in text, supra).

38



i

Appellant further contends that the totality of the circum­
stances surrounding this case make it an appropriate one for 
this Court to review and to modify the sentence imposed at trial. 
Appellant recognizes that it is a rare case in which an appellate 
court will review and modify a sentence when it is within the 
bounds of the statute. See, Rogers v. United States, 304 F.2d
520 (5th Cir. 1962); but see, Coleman v. United States, 357 F.2d 563 
(D.C. Cir. 1965). However, this case presents an exception to 
the rule. In cases where a sentence has been reviewed, some of 
the factors taken into account by appellate courts have been the 
circumstances of the crime and the general practice of sentencing 
when courts are confronted with the same or similar crimes. See, 
United States v. Wiley, 278 F.2d 500 (7th Cir. 1960). Also, 
sentences have been set aside where a court has applied improper 
standards in determining a sentence, or has failed to utilize 
procedures available to him in making his determination. United 
States v. Wiley, 267 F.2d 453 (7th Cir. 1959); Leach v. United 
States, 334 F.2d 945 (D.C. Cir. 1964). And this Court has 
indicated, in dicta, that a sentence might be modified where 
"the punishment is so greatly disproportionate to the offense 
committed as to be completely arbitrary and shocking to the sense 
of justice and thus to constitute cruel and unusual punishment." 
Boernqen v. United States, 326 F.2d 326, 329 (5th Cir. 1964).

7 /Appellant contends that the sentence here clearly was arbitrary.

7 / Considerations such as the sentence imposed for comparable 
offense have been weighed in those cases in which a punishment has 
been held to be cruel and unusual, and hence to violate the

39



« - *

To begin with, appellant has at all times expressed a 
willingness to be inducted into the Armed Forces. He reported 
for induction on May 11, 1966 but was not inducted solely because 
the army rejected him because of a wound. He stated to the draft 
board, to the FBI, and to the judge and jury below that he was 
at all times and is now willing to serve in the Armed Forces. 
Nevertheless, he was convicted on both counts and sentenced to 
the maximum possible penalty, 10 years in prison and $20,000.00 
fine. His case might be contrasted with that of a person who had 
conformed to all of the rules and regulations of the Selective 
Service System but when the moment came for actual induction 
refuses to be inducted and is prosecuted. Such a person, even 
though persistent in his refusal to submit to induction to serve 
in the Armed Forces, could be subjected only to a single five 
years imprisonment and to a $10,000.00 fine. Appellant's case 
may also be contrasted with what is apparently the general policy 
adopted towards persons who have failed to comply with regulations 
but have expressed a willingness to be inducted into the Armed 
Services. According to a recent law review note, the general 
practice adopted towards persons in appellant's circumstances is 
not to prosecute him at all. Rather, on such a person's

J_J (Cont.) Eighth Amendment. See, Weems v. United States,
217 U.S. 349, 380-381 (1910); Politano v. ~Politano, 262 N.Y.S.
802 (1933) . Thus, although the punishment imposed here is within 
the bounds of the statute, when the circumstances of the crime 
and the general treatment of violators of draft regulations are 
considered, it may well be considered so excessive as to constitute cruel and unusual punishment.

40



expression of a willingness to go at once into the Armed Forces, 
he is allowed to do so. See, Note, THE SELECTIVE SERVICE SYSTEM, 
114 U. Pa. L. Rev. 1014, 1034-35 (1966).-^

One wonders therefore why appellant was even prosecuted and 
why the district court gave him such a drastic sentence. One 
reason alone seems to explain this action; i..e., the desire merely 
to vent retribution on appellant, which in no way serves to 
further the ends of the proper administration of a system of 
criminal justice.

_8/ Quoting a publication of the Selective Service System, Leqal Aspects of Selective Service, §55 at 42 (1953):
Since the purpose of the law is to provide 

men for the military establishment rather than 
for the penitentiaries...when a registrant is 
willing to be inducted, he should not be pro­
secuted for minor offenses committed during his processing.

Moreover, persons convicted of violations of the Selective Service 
laws but who are willing to be inducted may be paroled into the 
Armed Forces, thus escaping a prison sentence. See, Note, THE SELECTIVE SERVICE, 76 Yale L.J. 160, 173 n. 91 (1966). This 
possibility was apparently never considered by the district court 
in determining the sentence and as far as the “ecord shows was never brought to his attention.

41



Conclusion

1

WHEREFORE, appellant prays that for the foregoing reasons 
the judgment below should be reversed.

Respectfully submitted,

JACK GREENBERG 
MICHAEL MELTSNER 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York

HOWARD MOORE, JR.
859 1/2 Hunter Street 
Atlanta, Georgia

THOMAS F. WALSH 
P. O. Box 75 Savannah, Georgia

CHARLES MORGAN 
LAUGHLIN MCDONALD

5 Forsyth Street N.W. 
Atlanta, Georgia

JOHN P. HOWLAND Attorneys for Appellant
Of Counsel

Certificate of Service
This is to certify that the foregoing Brief for Appellant was 

served on Bruce B. Greene, Assistant United States Attorney, 
Savannah, Georgia and Ramsey Clark, Attorney General, Department 
of Justice, Washington, D. C.. by depositing same in the United 
States mail, air mail, postage prepaid, addressed to them at their 
offices, this 26th day of May, 1967.

42
Attorney for Appellant



wilfully and knowingly did fail and neglect to 
perform a duty required of him under and in the 
execution of the Universal Military Training and 
Service Act and the rules, regulations, and 
directions duly made pursuant thereto, in that 
the defendant, Barry Jerome Wallace, did fail and 
neglect to comply with an order of his local board 
to report for induction into the armed forces of the United States in violation of Title 50, Appendix,
U.S.C. Section 462 (R. 6).

On December 7, 1965 Wallace took an army physical examination 
(R. 38, 90). He was found "acceptable" to the army on March 22,
1966 (R. 38). In response to an induction notice he reported to 
Fort Jackson, South Carolina as directed for induction into the 
Armed Forces on May 9, 1966 (R. 39, 81), but, because of a wound 
on his arm, the army refused to accept him for service (R. 43, 81, 
106, 107). The Sergeant in command gave him a bus ticket and 
said "You are going home for a month" (R. 81, 108, 109).

Wallace returned home to Savannah, Georgia where he lived 
at 512 West 33 Street with his mother (R. 69). On May 14, he left 
Savannah to continue his work with the Southern Christian Leadership 
Council (SCLC), telling his mother to forward his mail to^SCLC 
headquarters at 563 Johnson Avenue in Atlanta (R. 50, 82).
Wallace worked for SCLC as a civil rights field worker who attempted 
"to get people to vote" (R. 72, 76). The record amply reveals that 
this work necessarily involved continuous "traveling around to 
different places" in the South (R. 76, 85, 96, 97). For his work

1/ At the beginning of his trial, the United States Attorney 
erroneously referred to Wallace's employer as "the SNCC 
organization" (R. 25).

2



defendants who subsequently proceeded pro se, rather than seeking 
representation by previously-engaged private counsel. E.g.. Uhited 
States v. Rundle, 230 F. Supp. 323 (E.D. Pa. 1964), aff*d 341 F.2d 
303 (3rd Cir.), cert, denied 381 U.S. 944 (1965).

It should be noted that the courts in treating attempts to 
discharge counsel and to proceed pro se have always distinguished 
that situation from one where a continuance is required to secure 
the presence of a new attorney. See Dearinger v. United States,
344 F.2d 309, 312, n. 5 (9th Cir. 1965). As the court said in 
Dearinger in dealing with the issue of whether witnesses could be 
called against the advice of counsel: "the interest of an accused
in the selection of witnesses to be called in his behalf is obviously 
great. The interest of the court in denying Dearinger that privilege 
appears to have been slight." Id., at 312. Clearly, this analysis 
applies with even greater force where the right to be represented 
by retained counsel is involved. So this Court ruled in Heard v. 
Gomez. supra, and so it should rule here in reversing the judgment 
below.

34



IV
The Trial Judge, In Imposing The 
Maximum Sentence On Both Charges, 
Failed To Conform To The Federal 
Rules Of Criminal Procedures And 
Abused His Discretion

The trial of this case took one day. The trial judge refused 
a continuance of only one week so that appellant could be repre­
sented by an additional counsel of his own choosing. As was 
pointed out above, the instructions the court gave to the jury 
were sparse and inadequate. The jury was out for only twenty 
minutes (R. 128), and returned with a verdict of guilty on both 
counts. The district court proceeded immediately to sentence 
the appellant to the maximum possible sentence under the law, 
that is, five years in prison on each count and a $10,000 fine 
on each count. After the clerk read the verdict, the following 
colloquy took place:

THE COURT: Come around. The jury heardthe evidence in this case and I don't see how 
they could have done otherwise. You had good 
representation. He is a good lawyer and he 
gave you splendid representation. He gave 
you good service, but it took more than a 
good lawyer to win this case because the 
evidence was there. I am not going to re­
hash it or say anything further. Nov/, I 
am going to sentence you to five years on 
each count and $10,000.00 on each count.
Now, you have ten —  how many days?

THE CLERK: Ten days.
THE COURT: You have ten days to appeal.

Have you got anything to say in furtherance of this case?
THE DffifSJDANT. no .

35



 ̂ /f ^

expression of a willingness to go at once into the Armed Forces/ 
he is allowed to do so. See, Note, THE SELECTIVE SERVICE SYSTEM, 
114 U. Pa. L. Rev. 1014, 1034-35 (1966)

One wonders therefore why appellant was even prosecuted and 
why the district court gave him such a drastic sentence. One 
reason alone seems to explain this action; i..ê ., the desire merely 
to vent retribution on appellant, which in no way serves to 
further the ends of the proper administration of a system of 
criminal justice.

8/ Quoting a publication of the Selective Service System, Legal 
Aspects of Selective Service, §55 at 42 (1963):

Since the purpose of the law is to provide 
men for the military establishment rather than 
for the penitentiaries...when a registrant is 
willing to be inducted, he should not be pro­secuted for minor offenses committed during his 
processing.

Moreover, persons convicted of violations of the Selective Service 
laws but who are willing to be inducted may be paroled into the 
Armed Forces, thus escaping a prison sentence. See, Note, THE 
SELECTIVE SERVICE, 76 Yale L.J. 160, 173 n. 91 (1966). This 
possibility was apparently never considered by the district court 
in determining the sentence and as far as the “ocord shows was 
never brought to his attention.

41