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UNITED STATES v. SCHMUCKER

No. 82-3701.

721 F.2d 1046 (1983)

UNITED STATES of America, Plaintiff-Appellee, v. Mark Alden SCHMUCKER, Defendant-Appellant.

United States Court of Appeals, Sixth Circuit.

Decided November 25, 1983.

Attorney(s) appearing for the Case

William T. Whitaker, Whitaker & Reilly, Elizabeth Reilly (argued), Akron, Ohio, for defendant-appellant.

J. William Petro, U.S. Atty., Gary D. Arbeznik, Asst. U.S. Atty., Joseph P. Schmitz, Asst. U.S. Atty. (argued), Cleveland, Ohio, for plaintiff-appellee.

Ralph Rudd, Robert H. Bonthius, Jr., American Civil Liberties Union of Cleveland Foundation, Inc., Cleveland, Ohio, Harrop Freeman, General Counsel, CCCO, Cornell Law School, Ithaca, N.Y., Jon Landau, CCCO-Western Region, San Francisco, Cal., Peter Goldberger, Villanova Law School, Villanova, Pa., James H. Feldman, Jr., CCCO-National Office, Philadelphia, Pa., for amicus curiae for defendant-appellant.

Before MERRITT, Circuit Judge, PHILLIPS, Senior Circuit Judge, and SPIEGEL, District Judge.

MERRITT, Circuit Judge.

In this direct criminal appeal, we address only this issue: Did the District Court err in denying the defendant an evidentiary hearing to determine whether he was indicted for failure to register for the draft because of his exercise of first amendment rights. We reverse and remand for the evidentiary hearing requested.

I.

Under the terms of Presidential Proclamation 4711, issued by President Jimmy Carter on July 2, 1980,...

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