Opposition Brief — Niger v. United States

Inthe Supreme Court of the United States

OCTOBER TERM, 1969

No. 1363

PETER NIVEN KIGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-2)

is not yet reported. The opinion of the district court

is reported at 297 F. Supp. 339 (S.D.N.Y.) (Pet.

App. 3-14).

JURISDICTION

The judgment of the court of appeals was entered

on January 26, 1970. Mr. Justice Harlan extended

(1)

EROS: Steet oe

ERSTE eta tg sme gaan tang

TERETE NRE tee rare cen

RIEL DS rer eR sys

2

the time for filing a petition for a writ of certiorari

to March 27, 1970, and the petition was filed on that

date. The jurisdiction of this Court is invoked under

28 U.S.C, 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner’s conviction for burning

his draft card was properly sustained under the prin-

ciples enunciated in United States v. O’Brien, 39}

U.S. 367,

2. Whether the trial court abused its discretion by

refusing to accept petitioner’s plea of nolo con

tendere.

STATEMENT

After a non-jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of knowingly destroying and

mutilating his Selective Service Notice of Classifica-

tion certificate (SSS Form 110) in violation of 50

U.S.C. App. 462(b)(3). On April 28, 1969, he was

Sentenced to imprisonment for a period of three

months, The court of appeals affirmed per curiam.

The pertinent facts are not in dispute. Petitioner

registered with his loca] Selective Service board (in

Greencastle, Indiana) on November 7, 1956, and was

classified I-A (App. 22a).'' On July 13, 1961, peti-

tioner returned his registration certificate and his

notice of classification to the local board “as part of

1“App.” refers to petitioner’s appendix in the court of ap-

peals, a copy of which is on file with the Clerk of this Court.

8

a protest against the preparations for war.” Shortly

thereafter, in a personal interview, petitioner was ad-

vised by the board that he should carry his registra-

tion and classification cards so as not to be considered

in violation of the law. He was subsequently reclas-

sified I-O and thereafter served a year in prison (June

1962 to June 1963) for refusal to report for alterna-

tive civilian service (ibid.).

On January 4, 1966, petitioner, then 27 years of

age, sent his local board the following letter (App.

29a; Govt. Exh. 6):

Please send me a new classification card (I-Y,

I believe) .'*! I do not know the whereabouts of the

one which you sent to my home in Dunreith,

Ind., in 1963; and I wish to burn one in sympa-

thy with other people who have done so. The

above address is my home address now.

Pursuant to this request, the local board prepared

a duplicate notice of classification (including peti-

tioner’s I-O classification) which was mailed to him

on January 13, 1966 (App. 25a).

Subsequently, petitioner burned his notice of clas-

sification at a pre-arranged press conference in New

York City on March 24, 1966 (App. 25a-26a). At

trial he admitted knowing that his action was unlaw-

ful (App. 81a) and stated that he destroyed his draft

card on that occasion in order to “communicate to a

wide audience through the press” (App. 72a).

?In fact, petitioner had been reclassified I-O on August 12,

1964 (App. 24a).

4

ARGUMENT

1. Petitioner argues that his conduct in publicly

burning his notice of classification constituted “gym.

bolic speech” protected by the First Amendment,

Recognizing, however, that United States v. O’Brien,

391 U.S. 367, held to the contrary, petitioner urges

this Court to find critical factual distinctions between

this case and O’Brien or, failing this, to reexamine

and overrule O’Brien. Those contentions, we submit,

are without substance and do not warrant plenary

review by this Court,

a. Petitioner argues that his situation is different

from the O’Brien case, since, unlike the registrant

there, petitioner’s chances of being drafted were re

mote at best. This argument fails to recognize, how-

ever, that the legitimate congressional purpose in pro-

tecting draft cards from destruction, sustained in

O’Brien, is not necessarily related to the classification

of a particular registrant. That purpose is to assure

the efficient operation of the Selective Service System

(see 391 U.S. at 378-380). Whether a registrant is

Subject to immediate call or where, as here, there

may be little likelihood that the registrant will be

required to serve, that purpose is furthered by the

statutory prohibition. As the district court pointed

out, petitioner (who burned his certificate at age 27)

was liable for civilian service until reaching age 35

(see Pet. App. 10-11).

Nor can it fairly be urged (Pet. 29-37 ) that peti-

tioner had no other method but draft-card burning to

reach a significant audience regarding his views on

5

the Vietnam conflict. Recent history graphically at-

tests to the fact that there are many affirmative, le-

gitimate ways of expressing such dissent in a man-

ner that reaches a vast segment of the population, but

ghich does not constitute the plain violation of a

penal statute.

b. It is further contended that the legal status of

the statute prohibiting the destruction of draft cards

was ambiguous at the time petitioner burned his and

that, given this uncertainty, he was misled by the

hoard’s failure to warn him of the unlawful character

of his intended act, despite the fact that he had made

dear that he wanted the duplicate in order to de-

stroy it as an act of protest. Petitioner was well

aware, however, that the burning of his draft card

violated federal law. Indeed, he depended upon that

very illegality to attract the press coverage he

sought. Moreover, unlike the active misleading by

governmental agencies found in Raley v. Ohio, 360

US. 423, and Cox v. Louisiana, 379 U.S. 559 (on

both of which cases petitioner relies), the local board

in the instant ease was completely silent on the mat-

ter. It obviously responded to his request as a mat-

ter of normal procedure under 32 C.F.R. 1623.7,°

deeming that he had made a sufficient showing of

loss in his letter. At all events, as the courts below

held, the absence of a warning as to the legal conse-

‘That provision (see Pet. 6) permits the issuance of ©

duplicate notice of classification at the written request of

the registrant upon presentation of proof satisfactory to the

local board that the original card has been lost or mislaid.

Spee

OSTA SOM ceo meet Rng

ED “BAY

REESE SO ome

eae

6

quences of destruction cannot be construed @8 ap.

proval of petitioner’s contemplated act.‘

c. Nor was the validity of the statute under which

petitioner was prosecuted rendered uncertain because

its constitutionality had not yet been decided by an

appellate court at the time petitioner burned his card,

Petitioner cannot escape criminal responsibility {or

a knowing violation of a congressional command by

relying on the hope that the statute might be found

unconstitutional sometime in the future.

d. Finally, in urging the Court to reexamine

O’Brien, petitioner basically marshals the arguments

considered and rejected in that case (see Pet, 18-26),

There is no more occasion for the Court to overturn

that reasoned decision now than there was for it to

hold the statute invalid in that case. See United

States v. Dancis, 406 F.2d 729 (C.A. 2), certiorari

denied, 394 U.S. 1019.

2. Prior to trial, petitioner proffered a plea of nolo

contendere. The trial judge withheld his consent to

its acceptance, pursuant to Rule 11, F. R. Crim. P.

Acceptance or not of such a plea is, under that rule,

within the discretion of the judge; his decision in

this regard should be upheld absent a showing of

abuse. E.g., Mason v. United States, 250 F.2d 704

(C.A. 10).

*It borders on the frivolous, we submit, to urge that since

petitioner had not made a sufficient showing of loss, the

board violated the Selective Service regulations in sending

him the duplicate and thereby denied him procedural due

process.

_f

7

Petitioner argues, however, that the trial judge

was arbitrary in his refusal, in that even apart from

certain differing legal consequences, there is a stigma

attached to a determination of guilt not present in a

nolo plea (Pet. 37-40). That a plea of nolo contend-

ere might benefit the defendant is not, however, the

sole determining factor. The trial court should prop-

erly consider, in addition, such factors as the public

interest in the proceeding, the effect of the trial as a

deterrent, and the nature of the alleged violation.

See United States v. Chin Doong Art, 193 F. Supp.

820 (E.D.N.Y.); United States v. Ultramarine &

Color Co., 137 F. Supp. 167 (S.D.N.Y.). Here the

trial judge announced at the start of the trial that

he had given considerable thought to the matter and

decided that the case was inappropriate for the ac-

ceptance of a nolo contendere plea (App. 21a). As

the court of appeals held, there is no indication that,

in view of all the circumstances, such refusal con-

stituted an abuse of discretion (see Pet. App. 2).

POP PSR PARE TEAC

8

CONCLUSION

For the foregoing reasons, it is respectfully sy.

mitted that the petition for a writ of certiorari

should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

WILL WILSON,

Assistant Attorney General,

JEROME M. FEIT,

RONALD G. SCHERAGA,

Attorneys.

APRIL 1970.

® ©. ©. coveenweet reumrme orrice, 1970