384 F.2d 905 | 7th Cir. | 1968
Lead Opinion
Under Section 12 of the Universal Military Training and Service Act of 1948 (50 U.S.C. App. § 462), defendant was indicted for failing to report for induction to his Local Board in Racine, Wisconsin. His motion to dismiss the indictment was denied
On July 20, 1965, defendant received an order to report for induction at his Local Board in Racine “on 10 August 1965, at 6:00 a. m., for forwarding to an Armed Forces Induction Station”. He had previously been classified I-A and had passed his pre-induction physical examination. He did not challenge the I-A classification administratively.
On August 2, 1965, defendant sent a letter to the President of the United States, the Secretary of Defense, and his Local Board, complaining of United States policies in Vietnam and the Dominican Republic. This letter concluded as follows:
“I therefore refuse to serve in the Armed Forces of the United States in any way and will continue to do so until the current un-American policies are changed. I cannot support these policies and live with my conscience at the same time.
“I therefore refuse to participate in the Army as an agent of injustice.”
On August 10, 1965, defendant appeared at the local draft board in Racine. He thereupon distributed to some of those reporting for induction a signed leaflet that he had authored, entitled “A Declaration of Conscience”. The leaflet severely criticized United States policies as to Vietnam and then said:
“I am refusing to submit to induction.”
At the local board at this time, Miss Mona Hogan and a Miss Patel were processing the hundred or so men who had reported. When defendant reached Miss Patel’s desk, she asked him “Are you going for induction this morning” or “[are you] going to report for induction?”. He answered negatively. Miss Hogan then asked him to leave the office. When the two clerks went downstairs to put the men on the buses to the induction center in Milwaukee, defendant was standing outside the building but then left.
At the trial, the District Court permitted defendant to assert as a defense that he was entitled to classification as a conscientious objector under Section 6(j) of the Universal Military Training and Service Act (50 U.S.C. App. § 456 (j)).
For the first time, defendant asserts that his conviction was improper for want of compliance with certain portions of Army Regulation 601-270, providing for stepping forward upon induction and for felony warnings to those who refuse.
Defendant also relies upon certain provisions of the Selective Service System’s Rules and Regulations
Defendant next argues that the evidence was insufficient to convict him. However, defendant himself told local draft board clerk Miss Patel that he was not “going to report for induction”, thus admitting the commission of the very crime for which he was indicted. Defendant was a witness in the District Court. If he had any doubts about local board procedures or the point of time at which he would be violating the statute, he should have expressed those doubts during his trial. Instead his entire testimony was concerned with his possible status as a conscientious objector. Cf. Johnson v. United States, 318 U.S. 189, 196. On this record, we, conclude that defendant’s refusal to report for induction to his local board was unambiguous.
Finally defendant asserts that he should have been classified as a conscientious objector pursuant to Section 6(j) of the Act. However, he did not exhaust his administrative remedies by seeking Appeals Board review of his I-A classification. Therefore, he cannot complain of the I-A classification in this criminal prosecution (United States v. Nichols, 241 F.2d 1, 3 (7th Cir. 1957); Williams v. United States, 203 F.2d 85, 87 (9th Cir. 1953), certiorari denied, 345 U.S. 1003, 73 S.Ct. 1149, 97 L.Ed. 1408), and the District Court should not have received evidence as to whether he was actually a conscientious objector within the meaning of Section 6(j). His argument that Section 6(j) may not be constitutionally applied to him is not ripe for adjudication. Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553,
The judgment is affirmed.
. United States v. Kurki, 255 F.Supp. 161 (E.D.Wis.1966).
. Similar regulations are reproduced in Chernekoff v. United States, 219 F.2d 721, 724, note 12 (9th Cir. 1955).
. 32 CFR §§ 1632.14 and 1632.15.
Dissenting Opinion
(dissenting).
I respectfully dissent. The government was required to prove beyond a reasonable doubt that Kurki “did wilfully and unlawfully fail to report for induction to his Local Board No. 60 * * * [in] Racine, Wisconsin” on August 10, 1965.
In my opinion the record is not sufficient to prove the essential element of knowledge or wilfulness beyond a reasonable doubt. It is admitted that Kurki appeared at the Board office at the appointed hour of 6:00 a. m. on August 10, 1965. The letters Kurki wrote before and his distribution of the literature during his appearance in themselves are of no consequence to the question of his guilt. And here they are not enough to clarify and raise to the level of criminality Kurki’s responses to the ambiguous questions of the Board personnel. Cf. Chernekoff v. United States, 219 F.2d 721, 725 (9th Cir. 1955).
Miss Hogan testified that after Kurki identified himself to Miss Patel
The record seems to me to suggest understandable pique in the Board personnel because of Kurki’s conduct. But I do not think this is sufficient to preclude Kurki’s reliance on his right to a procedure similar to that outlined in Chernekoff v. United States, 219 F.2d at 724.
The fact that defendant was a witness does not relieve the government of its burden of proof. He had no obligation to express at his trial any doubts he had about the Local Board’s procedures or at what point he would be guilty of violating the law. The government had the burden of proving beyond a reasonable doubt that he wilfully failed to report for induction.
In my opinion only a most restricted view of what is fair can preclude reliance here upon Selective Service Regulations because they were not “cited below.” This court’s holding in United States v. Miroff, 353 F.2d 481, 483 (7th Cir. 1965), does not preclude that reliance. That was a civil suit for judgment for unpaid taxes and to enforce a tax lien, and the holding of waiver was with reference to a “minor contention.” And under United States v. Tyrrell, 329 F.2d 341, 345 (7th Cir. 1964), another civil tax case cited by the majority, the rule of waiver is not applied to jurisdictional grounds such as due process, or when it is not in the interests of justice. I think Kurki is entitled to try to set aside this unfair conviction by arguing from the regulations governing induction that he was prejudiced by failure of proof of the felony of knowingly and wilfully failing to report for induction.
Kurki faces two years in prison, the penalty for the offense charged being the
The fact that the regulations do not require more than what was done here by the Local Board does not excuse a lack of evidence to prove wilfulness in this case beyond a reasonable doubt. If the regulation required only what was done here in order to convict a defendant, in my opinion it would be constitutionally infirm for failing to provide due process.
The government, to sustain a conviction for “refusal to submit to induction,” is required under Chernekoff to prove that the induction ceremony followed the prescribed regulations as to the routine of the registrants in submitting, and that registrants who refused to take the “step forward” were warned of the penal consequences, had the “imminence of induction” statement reread to them, and finally were requested to sign a formal statement of refusal. The court there said Chernekoff should have been given the opportunity to “seriously reflect” on the consequences of his action, 219 F.2d at 725, and I think the denial of this opportunity to Kurki creates a reasonable doubt as to his wilfulness.
After Kurki left the Board office there was still an opportunity to ask or order him to board the bus and to explain the gravity of his decision and the penalty facing him. This is not a case where a registrant has failed to report for induction by absenting himself, thus making it impossible for any warnings to be given. I would hold that where a registrant has entered the premises of the Local Board on the day appointed, he cannot be convicted of failure to report unless warnings adequate under Chernekoff are given or unless his subsequent departure was in no way caused by draft board officials.
I would reverse.
. Miss Patel did not testify.
