Appendix — Gutknecht v. United States

Supreme Court brief1970

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(i)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 71

DAVID EARL GUTKNECHT,

Petitioner

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

TABLE OF CONTENTS

: PAGE

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Order denying motion to quash, etc. ..........-0200008 3

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Witnesses:

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Washington. D0. C. - THIEL PRESS - 202 - 393-0625

(ii)

PAGE

Opinion of the United States District Court for the District

<5 C chs chetaed sa Cray baw hearers os kewe 24

Opinion of the United States Court of Appeals for the Eighth

TS Swe CU cas ae tae eae Tee ne ke iow ewe ows 33

Selective Service System letter of 17 Oct. 1967 ........... 39

Selective Service System letter of Oct. 19,1967 ........... 40

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United States Attorney letter of Nov. 16,1967 ........... 42

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RELEVANT DOCKET ENTRIES

3/1/68 Indictment Filed

3/11/68 Filed defendant’s motion to make more definite

and certain or to quash indictment.

4/9/68 Filed Order (Neville-Judge) dated 4-8-68 denying

defendant’s motion to quash, etc.

4/16/68 Entered arraignment and plea of not guilty (Devitt,

J.)

4/18/68 Filed waiver of jury trial with court’s approval and

parties’ signatures.

Entered record of trial-Devitt, Judge

4/19/68 Entered record of further trial.

Parties rest.

5/10/68 Filed Memorandum Decision and Findings of Fact

dated 5-9-68 (Devitt - Judge) finding defendant

guilty of crime charged in the indictment.

7/15/68 Sentence is imposed. 4 years imprisonment.

7/25/68 Filed Notice of Appeal.

[Filed March 1, 1968]

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

UNITED STATES OF AMERICA 4-68 CRIM. 22

v. INDICTMENT

DAVID EARL GUTKNECHT (50 App. U.S.C. 462)

The United States Grand Jury Charges:

That on or about the 24th day of January, 1968, at the

City of Minneapolis, County of Hennepin, in the State and

District of Minnesota,

DAVID EARL GUTKNECHT

willfully 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 he did fail and neglect to comply with an order of his

local board to report for and submit to induction into the

armed forces of the United States, in violation of Title 50

App., United States Code, Section 462.

A TRUE BILL

/s/ [illegible] /s/ W. D. Stevens

United States Attorney Foreman

a SE TINE nr

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

[Caption omitted in printing]

ORDER

The above matter came on for hearing before the under-

signed, a judge of the above court, on March 28, 1968, on

the motion of defendant for an order quashing the indict-

ment heretofore returned against defendant or in the alter-

native requiring the United States to make the indictment

more definite and certain. Chester A. Bruvold, Esq., 404

WCCO Radio Building, Minneapolis, Minnesota, appeared

for defendant in support of said motion and Patrick J.

Foley by J. Earl Cudd, Esq., appeared for the United States

in opposition thereto. The court has heard the arguments

of counsel, has examined the indictment, and on the basis

thereof and on all the files, records and proceedings herein,

IT IS ORDERED That the motion of defendant be, and --

the same hereby is, denied.

It was stipulated into the record in open court by both

counsel that the case would be transferred after arraignment

and plea to the Third Division of this court for trial. It is

so ordered and the clerk of this court is directed to place

the case on the April, 1968 Third Division Criminal Calen-

dar for trial.

/s/ Philip Neville

United States District Judge

DATED: April 8, 1968.

MEMORANDUM

Defendant is charged by grand jury indictment with hav-

ing refused to serve in the armed forces of the United States.

More specifically, the indictment in these terms charges in

one count that he:

“willfully 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 he did fail and neglect to comply with

an order of his local board to report for and submit to

induction into the armed forces of the United States,

in violation of Title 50 App., United States Code, Sec-

tion 462.”

Defendant moves the court for an order quashing the in-

dictment herein on the grounds that it fails to state any

charge, is contradictory, combines two offenses in one count

and is ambiguous.

Rule 8(a) of the Federal Rules of Criminal Procedure pro-

vides as follows:

“Joinder of Offenses. Two or more offenses may be

charged in the same indictment or information in a

separate count for each offense if the offenses charged,

whether felonies or misdemeanors or both, are of the

same or similar character or are based on the same act

or transaction or on two or more acts or transactions

connected together or constituting parts of a common

scheme or plan.

If in fact the above indictment charges two offenses, they

are not set forth in separate counts as Rule 8(a) requires.

Defendant’s counsel agreed in oral argument before the

court, however, that if the indictment had been in two

counts, his claimed grievance would disappear.

Rule 14 of the Federal Rules of Criminal Procedure pro-

vides in part as follows:

“If it appears that a defendant or the government is

prejudiced by a joinder of offenses or of defendants in

an indictment or information or by such joinder for

trial together, the court may order an election or sepa-

rate trials of counts, grant a severance of defendants or

provide whatever other relief justice requires.”

The prejudice claimed by defendant is his alleged inability

to know what charge he must meet at trial.

Defendant has devoted his argument to, and has cited a

number of cases bearing on, the question of type of proof

available to him when and if he stands trial on this indict-

ment. He states failure and neglect to “submit to” gives

greater latitude and a wider scope in proof than does failure

and neglect to “report for’. For purposes of the pending

motion this consideration seems immaterial, though the court

does not at this time pass upon and expressly reserves to

the trial judge the question of type and quantum of proof

available to defendant at the trial. In reality the only issue

before the court on the present motion is whether the alle-

gation is duplicitious; that is, are two different offenses

alleged in one count to the prejudice of defendant, namely:

1. failure to report for induction

2. failure to submit to induction.

On this issue the court rules against defendant

50 App., United States Code, Section 462 embodies the

concept that one who “knowingly fails, neglects or refuses

to perform any duty required of him under . . . directions

made pursuant to this title . . .” is guilty of an offense. The

offense is failure to perform a directed duty. The indict-

ment alleges that defendant failed and neglected “‘to perform

a duty required of him”. Under Section 462 this is the of-

fense. This is the cause of his indictment. Section 462

does not contain within it either of the terms “report for”

or “submit to”. The indictment charges that having received

a direction in the form of an order from his selective serv-

ice board, he owed a duty to comply with it. This states

an offense. This is sufficient to uphold the indictment.

The fact that the indictment goes forward to allege two

different ways in which it is claimed he failed to perform

this duty does not alter this ruling. It could be alleged that

he failed to perform a direction of the selective service board

in several different ways. His charged offense, however, is

failure to perform the duty required; and each of the ways

in which he allegedly failed to do so is not per se a separate

crime nor need it be a separate count in an indictment.

Defendant cites to the court Estep v. United States, 327

U.S. 114, 66 S.Ct. 423, 90 L.Ed 567 (1946). A quote

from that case accords with what has hereinabove been said:

(emphasis added)

““By the terms of the Act Congress enlisted the aid of

the federal courts only for enforcement purposes. Sec. 11

makes criminal a wilful failure to perform any duty required

of a registrant by the Act or the rules or regulations made un-

der it. An order to report for induction is such a duty; and i.

includes the duty to submit to induction. Billings v. Trues-

dell, supra, 321 U.S. at page 557, 64 S. Ct. at page 746, 88

L.Ed. 917. Sec. 11 confers jurisdiction on the district courts

to try one charged with such offense. But § 11 is silent when

it comes to the defenses, if any, which may be interposed.”

The fact that section 11 is silent when it comes to the de-

fenses available to a defendant is not grounds for attacking

the wording and validity of an indictment, Further, follow-

the philosophy of Rule 14 of the Federal Rules above

quoted, it is difficult to see how this ruling in any way pre-

judices defendant. He will be accorded the broader proof

rights at the trial, if a difference there be, so long as both

“report for’ and “submit to” remain a part of the indict-

ment, as this court now rules by its order that they shall.

What has heretofore been said disposes of defendant’s

motion to make more definite and certain. The court there-

fore denies defendant’s motion.

keine et ok Me

EXCERPTS FROM TRANSCRIPT

[9] x* * *

MR. CUDD: Your Honor, the Government will waive its

opening statement since I believe in the discussion prior to

our convening here I have stated to the Court what I believe

the issues are, and I think it will shorten the time. I will call

our first witness, Bernard Scheer.

Whereupon,

BERNARD A. SCHEER,

a witness called by and on behalf of the Government, being

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

(Government’s Exhibit 1 marked for identification.)

BY MR. CUDD:

Q. Where do you live, Mr. Scheer? [10] A. At Gay-

lord, Minnesota.

Q. And what is your business or occupation? A. I am

the county veteran service officer and also the Selective

Service clerk for Sibley County.

Q. What’s the local Board number there? A. 115.

Q. I will show you what has previously been identified

as Government’s Exhibit 1 and ask you if you recognize

that? A. Yes, I do.

Q. And that’s a Selective Service file pertaining to whom?

A. David Earl Gutnecht.

Q. And are the records—strike that. Is that file and the

entries thereunder prepared by you? A. Could I look at

this?

Q. Sure. A. Yes, it is.

Q. And do you make the entries in that file pursuant to

the Selective Service regulations? A. Yes, I do.

Q. At or about the time that the occurrences indicated

therein take place, is that correct? A. Yes.

MR. CUDD: At this time then, Your [11] Honor, we

will offer Government’s Exhibit Number 1 for identification

into evidence. The Government has previously furnished Mr.

Bruvold a Xerox copy.

(Government’s Exhibit 1 offered in evidence.)

MR. BRUVOLD: May I make some inquiries, Your

Honor?

THE COURT: Sure.

MR. BRUVOLD: Referring to Government Exhibit 1,

there are certain numbered circled numbers in the upper

right-hand corner, did you place those on there?

THE WITNESS: Yes.

MR. BRUVOLD: They are consecutive and they are used

to identify the documents as they were placed in the file?

THE WITNESS: They were when I mailed them in, yes.

MR. BRUVOLD: When you put them in?

THE WITNESS: Yes.

MR. BRUVOLD: You put those numbers on before the

file left your office?

THE WITNESS: Right.

MR. BRUVOLD: There are also some [12] other num-

bers in the lower corners, did you put those on?

THE WITNESS: No. I did not.

MR. BRUVOLD: You did not, But your numbering

system is the number of the document in the circled num-

ber in the upper right-hand corner?

THE WITNESS: Yes.

MR. BRUVOLD: If your file is complete they should

start with number one on those and run through, it would

appear number 30 is the last one here?

THE WITNESS: I don’t recall which is the last one, but

I presume that would be the last one.

MR. BRUVOLD: You presume that would be the last

one, number 30?

THE WITNESS: If they are in correct order.

MR. BRUVOLD: And if these papers were out of order

in the file you could put them back in the same order by

those numbers?

THE WITNESS: Yes, sir.

— a

MR. BRUVOLD: And that is the number and the indica-

tion of the rotation of which these papers came into your

file down there in Sibley County?

[13] THE WITNESS: Yes. According to the date.

MR. BRUVOLD: According to the date. And on the

back of number one there is a certain listing, are you famil-

iar with that listing?

MR. CUDD: Your Honor, I object to this.

MR. BRUVOLD: I just wanted to find out one item on

this. Are you familiar with that item one?

THE COURT: Did you finish your objection?

MR. CUDD: Yes, Your Honor, I did. I wanted to ob-

ject on the grounds that this question does not go to foun-

dation, to the exhibit which, as I understand it, is counsel’s

purpose in examining at this time.

MR. BRUVOLD: This goes to the question of founda-

tion.

THE COURT: You may answer.

THE WITNESS: What?

MR. BRUVOLD: Is that a listing of dates and events?

THE WITNESS: Yes, it is.

MR. BRUVOLD: And was that listing [14] made by you

as part of your duties?

THE WITNESS: As far as I know it was. I am sure it

was. I did it myself other than this one probably ‘isn’t my

writing, I don’t think, but I think the girl that works for

me occasivnally wrote that in for me. ! had her write it in.

MR. BRUVOLD: You had a girl that works for you?

THE WITNESS: Well, occasionally she does, and she

helps me with my other work, my veterans work and also

helps with this.

MR. BRUVOLD: Then of your own knowledge you

would say that that listing on that sheet there from your

own knowledge is correct?

THE WITNESS: Yes, sir.

MR. BRUVOLD: We have no objections, Your Honor.

THE COURT: Exhibit 1 may be received.

(Government Exhibit 1 received in evidence.)

BY MR. CUDD:

Q. Now, Mr. Scheer, referring you to Government Exhi-

bit 1, would you tell the Court on what date—strike that

[15] question. From an examination of Government’s Ex-

hibit 1, can you tell me whether an order to report for in-

duction was issued for David Gutnecht? A. Yes, it was.

Q. And on what date was that order issued? A. I don’t

recall offhand, I mean the date, myself. It would be in the

file here.

Q. Can you recall what date the order required Mr. Gut-

necht to appear? A. No. I don’t recall the date. 1 mean

I just don’t.

Q. Well, would you examine the file and see if you can

determine that? A. What day he was supposed to appear

for induction?

Q. Yes. The date the order required him to appear and

also the day the order was issued, please? A. He was or-

dered to appear on January 24, 1968.

Q. And what date was it, was that order to report for

induction mailed? A. On December 26, 1967.

Q. And on January 24, 1968, did he appear at the Se-

lective Service Board in Gaylord, Minnesota? A. Yes, he

did.

Q. And from there what happened to him if you know?

A. He joined the rest of the group and got on the bus [16]

and left for the Federal Building in Minneapolis.

Q. Do you know Mr. Gutnecht, Mr. Scheer? A. I know

who he is. I don’t know him otherwise.

Q. Do you see him in the courtroom today? A. Yes.

Q. And would you indicate, please. A. Right there.

MR. CUDD: May the record show, Your Honor, that the

witness has indicated the defendant David Gutnecht. Any

objection, counsel, for the record so showing?

MR. BRUVOLD: There will be no objection as to iden-

tification that the David Gutnecht mentioned in the Selec-

tive Service Service file, Government Exhibit No. 1, is the

defendant in this action.

BY MR. CUDD:

Q. Now, Mr. Scheer, the order to report for induction

to which you just referred, that was the document that con-

tains the number 25 in this upper right-hand corner, is that

correct? A. Right.

MR. CUDD: I have no further questions, Your Honor.

* * a

[21] Whereupon,

BILLY D. O’NEIL,

a witness called by and on behalf of the Government, being

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. CUDD:

Q. Sergeant, would you state your name, rank and serial

number for the record, please? A. Sir, my name is Billy

D. O’Neil, rank is Sergeant First Class, and service number

is RA17377458.

THE COURT: Again, please, your service number again?

THE WITNESS: Yes, sir, RA17377458.

BY MR. CUDD:

Q. What is your present duty station? A. Sir, my pres-

ent duty station is in Minneapolis, Minnesota.

Q. And in what specific branch of the armed forces? A.

Sir, I am a non-commissioned officer in charge of the pro-

cessing section at the old Federal Office Building.

Q. That’s the armed forces induction station, is that cor-

rect? A. Yes, sir. That is correct.

[22] Q. And that’s the place where selectees for mili-

tary service are given physical examinations and processed

for induction, is that correct? A. Yes, sir. That is correct.

Q. Now, were you on duty on January 24, 1968? A.

Yes, sir. I was on duty.

Q. And did you have occasion to have a conversation

with Mr. David Gutnecht? A. Yes, sir.

Q. And do you see Mr. Gutnecht in the courtroom today?

A. Yes, sir, I do.

Q. And would you indicate, please? A. (The witness

complies.)

MR. CUDD: Your Honor, may the record show that the

witness indicated the defendant David Gutnecht?

THE COURT: Absent objection it may.

MR. BRUVOLD: We have no objection.

THE COURT: The second man sitting there, the second

man?

THE WITNESS: The second man, sir.

THE COURT: The first man is Mr. Bruvold, the lawyer.

Just a moment, if you people all want to stay, you have

to be quiet.

BY MR. CUDD:

Q. Now, did you have a conversation with Mr. Gutnecht

at this time with reference to processing for inductior? A.

Yes, sir, I did.

Q. And who was present besides yourself, if anyone? A..

Sir, when I first joined up with Mr. Gutnecht, it was at one

of the offices where we pass out the induction paper work,

and then Mr. Gutnecht indicated to me that he had no in-

tentions to process in any way, such as physical examina-

tion or mental.

Q. All right. Now, after he told you that, what did you

do, if anything? A. Sir, 1 escorted Mr. Gutnecht down to

Lieutenant Petrie’s office.

Q. And what happened there? A. I informed Lieuten-

ant Petrie that Mr. Gutnecht has refused to process either

in his physical examination or mental testing.

Q. And did Lieutenant Petrie at that time have a con-

versation with Mr. Gutnecht? A. Yes, sir. He did.

[24] Q. And who else was present besides Mr. Guthecht,

Lieutenant Petrie and yourself? A. At this time there was

only the three of us.

Q. And what conversation—or relate to the Court that

conversation that Lieutenant Petrie had with David Gutnecht?

MR. BRUVOLD: I want to object to this at the present

time as going—

THE COURT: Maybe you want to stand up when you

make your objections.

MR. BRUVOLD: All right. As going beyond the ques-

tion in the indictment. This witness has established the fact

that Mr. Gutnecht was at the station, at the induction center

there and the indictment charges him with failing to be

there. I don’t think any conversations would be material

under the indictment, and I think the charge is limited to

that point.

THE COURT: I will receive the testimos © ect to

your objection. Go ahead, counsel.

BY MR. CUDD:

Q. Would you then relate that conversation that Lieu-

tenant Petrie had with David Gutnecht? A. The conversa-

tion went as such: that Lieutenant Petrie informed Mr.

Gutnecht of the regulations pertaining to [25] refusal to

process for induction.

Q. And did you hear whether he gave him any advice as

to the penalties that might ensue? A. Yes, sir.

Q. What did he tell him? A. He informed Mr. Gutnecht

that by refusing to be inducted into the service, it could

possibly lead to a thousand dollar fine or five years in the

penitentiary or both.

(Government Exhibit 2 marked for identification.)

BY MR. CUDD:

, Q. Showing you, Sergeant O’Neil, Government Exhibit

2 for identification, I will ask you if you recognize that '

document? A. Yes, sir. I do.

Q. And where did you first see Government Exhibit 2

for identification? A. This was presented to Lieutenant :

Petrie in the office.

Q. And presented to Lieutenant Petrie by whom? A.

By Mr. David Gutnecht.

Q. Now, on the lower right-hand corner, do you recog-

nize the signature there? A. Yes, sir. I do.

[26] Q. And whose signature is that? A. David Gut-

necht’s.

MR. BRUVOLD: I am going to object to that as no foun-

dation laid for the identification of the signature and use

of the document not in evidence.

THE COURT: I don’t think I can year you. I think if

you would stand up. Now I can hear you.

MR. BRUVOLD: I am going to object to the question

there, using a document not in evidence and no foundation

for the question of the identification of the signatures.

THE COURT: Maybe you want to offer it?

MR. CUDD: Well, Your Honor, I think he misunderstood

my question, and I am in the process of laying the founda-

tion. So I will strike the question and move that the an-

swer be also stricken.

THE COURT: It may be stricken.

BY MR. CUDD:

Q. In the very lower right-hand corner, Sergeant, there

is a signature, do you recognize that signature? A. Yes,

sir. That is my signature.

Q. And it contains your rank and serial number, is [27]

that correct? A. Yes, sir. That is correct.

Q. And in the very lower left-hand corner there is anotk-

er signature. Do you recognize that? A. Yes, sir. That

signature is Larry J. Petrie.

MR. BRUVOLD: Your Honor, I move that that be

stricken, no foundation for that testimony.

THE COURT: The answer may stand. Next question.

BY MR. CUDD:

Q. Did Lieutenant Petrie sign that, affix his signature to

Government Exhibit 2 for identification in your presence?

A. Yes, sir. He did.

Q. And you affixed your signature in your presence?

A. That is correct, sir.

Q. Now, immediately above the two signatures on

Government’s Exhibit 2 for identification which you have

just testified to, there is some handwriting and a signature

there. Do you know how that handwriting got on Govern-

ment Exhibit 2 for identification? A. Yes, sir. I witnessed

David Gutnecht putting this signature there and the state-

ment.

Q. All right. Now, immediately above that there is anoth-

er signature David Gutnecht, was that placed on [28] Gov-

ernment Exhibit 2 for identification in your presence? A.

No, sir. That was signed prior to his giving it to Lieutenant

Petrie.

Q. All right.

MR. CUDD: At this time, Your Honor, the Government

will offer in evidence Government’s Exhibit 2 for identifica-

tion.

(Government Exhibit 2 offered in evidence.)

MR. BRUVOLD: May I inquire of Government counsel

if this is the original of the item that appears in Item 7 of

the Selective Service file at page 34?

MR. CUDD: Yes.

MR. BRUVOLD: Then this is already in evidence as a

part of the Selective Service file?

MR. CUDD: It is, but I thought I should offer it as a

separate exhibit, Your Honor.

THE COURT: Absent objection it may be received.

MR. BRUVOLD: I have no objection then, we have ad-

mitted the other.

(Government Exhibit 2 received in evidence.)

[29] BY MR. CUDD:

Q. Now, the sentence and the sign.ture which appears

approximately one-third up from the bottom of Government

Exhibit 2, to which you have previously testified that Mr.

Gutnecht wrote and signed states what, Sergeant? °

MR. BRUVOLD: I object to the question, the document

will speak for itself.

THE COURT: You may read it. You may tell us.

THE WITNESS: The sentence states, “I refuse to take

part in any or all of the prescribed processing. David Gut-

necht.”’

MR. CUDD: I have no further questions, Your Honor.

CROSS EXAMINATION

BY MR. BRUVOLD:

Q. Sergeant O’Neil, have you told us all of the conver-

sations that took place at that time between yourself and

Lieutenant Petrie and David Gutnecht? A. Sir, as far as I

can remember, yes.

Q. How large was this room that you were in? A. Nine

by twelve approximately. You are talking about the room

where three of us were together?

Q. Where the three of you were together. [30] A. Right.

Approximately nine by twelve.

Q. Nine feet by twelve feet? A. Yes, sir.

Q. Were there some desks or chairs in this room? A.

Yes, sir. There is one desk, one davenport, a couple chairs.

Q. Now, one of your functions at the induction center

there is to induct the draftees into the military service, is

it not? A. Yes, sir. That is correct.

Q. And the Army has certain prescribed regulations for

this, do they not? A. Yes, sir. That is correct.

Q. And are you familiar with those regulations? A. Most

of them, sir.

Q. You are familiar with the regulaions pertaining to in-

duction? A. Most of it, sir.

Q. Showing you an item numbered 27 in Government

Exhibit 1, I believe you testified that you recognized Lieu-

tenant Petrie’s signature on a document, did you not? [31]

A. Yes, sir.

Q. And on that first part of that item 27, on the second

page there, page 33 in the listing, there appears a signature,

does there not, Larry J. Petrie? A. Yes, sir.

Q. Would that appear to be his signature? A. Yes, sir.

Q. And have you seen that letter before? A. Yes. I

have read it.

Q. You have read it? A. Yes, sir.

Q. And that contains a resume of what transpired at the

induction station there? A. Yes, sir.

Q. And that is an accurate resume of it? A. Yes, sir.

Q. You are familiar with Army Regulation 601-270? A.

Slightly, sir.

(eimmanaranem cm > nary te OR ile Sp PETS

Q. Slightly. Would you be familiar with Section 37 of

that if I showed you a copy of it?

MR. CUDD: Your Honor, I will object to this question,

the regulation, | think, speaks for itself. It’s part of the

Code of Federal Regulations [32] with which the Court can

take judicial notice.

THE COURT: You may answer the question.

THE WITNESS: The question is am | familiar with this?

BY MR. BRUVOLD:

Q. Are you familiar? A. With the oath of allegiance?

Q. Paragraph 737 of Army Regulation 601-270? A. Para-

graph 37 in this oath of allegiance?

Q. The procedure prescribed under Section 37 entitled,

“Induction”? A. Yes, sir. I am familiar with the regula-

tion.

Q. And that sets out the regulation in regard to the in-

ducting of persons into the military forces, does it not? A.

Yes, sir.

MR. BRUVOLD: I will have the reporter mark a copy

of this as Defendant’s Exhibit A so I don’t have to take it

out of the book there.

(Defendant’s Exhibit A marked for identification. )

BY MR. BRUVOLD:

Q. Showing you Defendant’s Exhibit A so we have no

question about it, that appears to be a copy of that page, a

[33] duplicate copy of that page? A. Yes, sir. That is.

Q. The one you were just reading? A. Right.

Q. Are you familiar with paragraph 40 of Army Regula-

tion 601-270? You may refresh yourself out of the copies

there, particularly with reference to the first paragraph and

then paragraph C?

MR. CUDD: Your Honor, the Government will object

on the grounds that Army Regulation just cited is irrele-

vant and immaterial. However, if the Court overrules the

objection, we will stipulate as to the admissibility of the

regulation.

THE COURT: Yes. It may be received then. Next ques-

tion, counsel.

(Defendant’s Exhibit A offered and received in evidence.)

BY MR. BRUVOLD:

Q. Just for the record then, so we have it, the next item

in the stapled item Defendant’s Exhibit A here is a dupli-

cate copy, is it not, appears to be a duplicate copy of Sec-

tion 40? A. Yes, sir. That’s correct.

Q. And that goes on to the next page over here cover-

ing [34] Section 40? A. That’s right.

Q. And then the last sheet on there is the next sheet un-

der the Section 40? A. Yes. Very same.

MR. BRUVOLD: So then it’s stipulated Defendant’s Ex-

hibit A may be offered in evidence as a copy of those regu-

lations?

MR. CUDD: Subject to my objection as to materiality

and relevancy that’s correct, Your Honor.

THE COURT: I will overrule the objection and it may

be received. Do you have an extra copy?

MR. BRUVOLD: I have a copy here that the clerk can

keep. I have my own copy.

BY MR. BRUVOLD:

Q. Now, Mr.—or Sergeant O’Neil, pardon me—Did Mr. —

the defendant Mr. Gutnecht ever appear with the group that

was there that morning and was he ever offered as a part of

the group that was there on the morning of the 24th, the

prescribed induction ceremony and proceedings as outlined

under paragraph 37 of Army Regulation 601-270?

{35] Mr. CUDD: Well, Your Honor, to shorten up the

matter, we will stipulate he wasn’t given the opportunity to

take the one step forward, object that the evidence is irrele-

vant and immaterial.

THE COURT: The stipulation may stand. Next question.

al A AEA

BY MR. BRUVOLD:

Q. Now, when Mr. Gutnecht was in this room with Lieu-

tenant Petrie and yourself, was the statement read to him

by you or Lieutenant Petrie, “You are about to be inducted

into the armed forces of the United States in the Army, the

Navy, the Air Force or the Marine Corps as indicated by the

service announced following your name when called. You

will take one step forward as your name and service are

called and such step will constitute your induction into the

armed forces indicated,” was this read to him in the room

by yourself or Lieutenant Petrie? A. No, sir. That’s the

last part of the swearing in when a man is inducted into the

service. That is done after he has already taken his physical

and mental tests, and since he did not accept to take either

test this was not read to him.

Q. Paragraph 40 of Army Regulation 601-270, subsec-

tion C— A. Paragraph what?

[36] Q. Oh, 14 here is entitled, “Registrants who refuse

to submit to induction,” is it not? A. Yes, sir. That’s cor-

rect.

Q. And that would be the regulation that would be ap-

plicable in this situation, would it not?

MR. CUDD: I object to that question, Your Honor, as

calling for a legal conclusion of the witness.

THE COURT: Sustained.

BY MR. BRUVOLD:

Q. How long have you been at the induction station down

there Sergeant O’Neil, in your present capacity or in the

capacity you had in January? A. Sir, I have been at the

Army exam station for one year and two months.

Q. And what you did in this situation was just follow

the practice that you had followed on other occasions on

refusals of induction?

MR. CUDD: I object to the question, Your Honor, as

being irrelevant, immaterial. He testified as to what he did

and what was said on this occasion.

THE COURT: You may answer.

THE WITNESS: Very same procedure, yes.

[37] MR. BRUVOLD: I have no further questions.

MR. CUDD: No further questions, Your Honor.

THE COURT: You may step down, Sergeant. Next wit-

ness.

(Witness excused.)

MR. CUDD: Lieutenant Petrie.

{38] Whereupon,

LARRY J. PETRIE,

a witness called by and on behalf of the Government, being

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. CUDD:

Q. Lieutenant, would you state your name, rank and ser-

ial number and present duty station for the record, please?

A. Larry James Petrie, Second Lieutenant, United States

Army, Serial number 05341626.

Q. Would you please go a little slower for the court re-

porter who has to record those numbers. Now, Lieutenant

Petrie, were you on duty January 24, 1968? A. Yes, sir,

I was.

Q. On that occasion, or that day, did you have a conver-

sation with David Gutnecht? A. Yes, sir.

Q. Do you see Mr. Gutnecht in the courtroom? A. Yes,

sir.

Q. And would you indicate him, please? A. The second

man at the table there.

Q. The one in the green sweater? A. Yes, sir.

[39] MR. CUDD: May the record show, Your Honor,

the witness has indicated the defendant David Gutnecht?

MR. BRUVOLD: No objection, Your Honor. We stipu-

lated to it.

BY MR. CUDD:

Q. Now, did you have occasion to have a conversation

with Mr. Gutnecht on January 24, 1968. A. Yes, sir.

WP ote nr Bi

Q. Who was present at that conversation besides your-

self? A. Sergeant O’Neil.

Q. And where did that conversation take place? A. In .

my office.

Q. And at the induction station? A. On the armed for-

ces examination and entrance station, commonly shortened

to induction station.

Q. Who was present besides yourself? A. Sergeant

O’Neill and Mr. David Gutnecht.

Q. All right. What did Mr. Gutnecht say to you at that

time if anything? A. That he was refusing to cooperate

with the Selective Service System by taking tests, physical

and mental, for the draft, or words to that effect. That’s

definitely not an [40] exact quote.

Q. Is that your best recollection of the conversation? A.

There was more to it than that that was said, but that is

basically what it boiled down to.

Q. At that time did you advise him of any liabilities that

he might incur by taking the action that he told you he was

going to take? A. Yes, sir. I did.

Q. And what did you advise him? A. That under the

Selective Service Act of 1967, refusing to process for induc-

tion is a felony. The act may be brought to trial in civil

court and if convicted may result in five years imprisonment

or $10,000 fine or both or any combination thereof.

Q. And did you ask him if he understood that? A. Yes,

sir.

Q. Showing you Government Exhibit 2, | will ask you if

you recognize your signature thereon? A. Yes, sir.

Q. And that’s in the lower left-hand corner, is that cor-

rect? A. Right, sir.

Q. Now, immediately above there, there is a one-sentence

phrase or one sentence and a signature, do you [41] recog-

nize that? A. Yes, sir.

Q. When was that affixed to Government Exhibit 2, if

you know? A. That was done in my presence in my office

24 January ’68 by Mr. David Gutnecht.

MR. BRUVOLD: Your Honor, I think this is repetitious

and it’s perfectly agreeable, ro question about the statement.

This is part of the Selective Service file. I was familiar

with it. The Government offered it and I just checked it

because I wished to be sure. I think the document speaks

for itself.

THE COURT: The answer may, stand. Next question.

MR. CUDD: No further questions.

MR. BRUVOLD: I believe Your Honor has the file up

there. I will show it to the witness, we can use this one.

CROSS EXAMINATION

BY MR. BRUVOLD:

Q. This is a copy of Item 27 in Government Exhibit 1

and there appears a signature here, “‘J. Petrie,’ on that, is

[42] that your signature? A. It appears to be. Yes, sir.

Q. And that is a true and accurate resume of what tran-

spired at the induction station at that morning? A. Yes,

sir.

Q. You are, in the course of your employment at the in-

duction center there, you are familiar with the government

induction regulations? A. More or less. Yes, sir.

Q. You are familiar with paragraph 37 of Army Regula-

tion 601-270? A. Quite, sir.

Q. And you are also familiar with paragraph 40 of Army

Regulation 601-270 which deals with processing of regis-

trants and special circumstances? A. Quite, sir, depending

on, if that is a posted issue or an older regulation.

Q. And particularly paragraph C, registrants who refuse

to submit to induction? A. More or less, sir, yes.

Q. How long have you been employed down there at the

induction center? A. I reported in 24 July, 67, sir.

Q. So that’s about, last January is about six months [43]

then? A. Roughly, sir.

Q. Now, did you state to Mr. Gutnecht or hear stated

to him at the induction station, ““You are about to be in-

ducted into the armed forces of the United States in the

Army, the Navy, the Air Force or the Marine Corps as indi-

cated by the service’ announced following your name when

called. You will take one step forward as your name and

service are called and such step will constitute your induc-

tion into the armed forces indicated’?

MR. CUDD: Your Honor, | will object to the question

on the grounds that it’s irrelevant and immaterial on the is-

sue in this case.

THE COURT: You may answer.

THE WITNESS: Can you give me the question for me?

_ Did I say it or hear it said?

BY MR. BRUVOLD:

Q. That’s right. Did you say this or hear it said to Mr.

Gutnecht? A. No.

MR. BRUVOLD: No further questions, Your Honor.

MR. CUDD: No further questions, Your Honor.

THE COURT: You may step down. All right.

(Witness excused.)

24 4

Opinion of the United States District Court

for the District of Minnesota

UNITED STATES DISTRICT COURT

D. Minnesota,

Third Division.

May 9, 1968.

4-68-Cr.-22.

Unitep States oF AMERICA,

Plaintiff’,

Davip Eart GutTkKNECHT,

Defendant.

<p>

MEMORANDUM

& .

Finpincs or Fact

Devitt, Chief Judge:

In this jury-waived criminal case charging the defendant

with violation of the Selective Service Law, the issue as

created by the indictment and the defendant’s plea of not

guilty is whether the government has proved the defendant

guilty beyond a reasonable doubt.

The defendant is a 21-year-old resident of Winthrop,

Minnesota, and is charged under 50 App., United States

Code, § 462 with wilfully and knowingly failing and neglect-

ing to comply with an order of his local Selective Service

Board to report for and submit to induction into the armed

forces of the United States.

The record shows that the defendant completed and filed

the required classification questionnaire (SSS Form No.

100) on January 17, 1966 and was assigned Selective Ser-

vice No. 21-115-47-162. His draft board, Sibley County,

Minnesota Board No. 115, classified him 1-A on February

15, 1966, 2-S on March 15, 1966, and again 2-S on Decem-

ber 21, 1966. The expiration date of the last 2-S classifica-

tion was October 1, 1967.

On November 23, 1966 the defendant signed and filed a

conscientious objection form (SSS Form No. 150). On June

16, 1967 the local board notified the defendant to appear

before it on June 21, 1967, at which time the Board would

consider his reclassification. On June 21, 1967 he was re-

classified 1-A and officially notified of that fact.

The defendant appealed this classification to the State

Appeal Board, which, on November 1, 1967, classified him

1-A by a vote of 5 “yes” and 0 “no.” The defendant was

notified of this action.

On December 20, 1967 Local Board No. 115 declared the

defendant delinquent for failure to have in his possession

Selective Service Registration card (SSS Form No. 2) and

Notice of Classification (SSS Form No. 110). He was ad-

‘vised of this declaration of delinquency on December 21,

1967. aad

An order to report for induction was mailed to defendant

on December 26, 1967, directing him to report for induction

at the courthouse at Gaylord, Minnesota, on January 24,

1968 at 6 A.M. He did so report and was transported to

the armed forces induction station at Minneapolis, Minne-

sota.

Upon arrival there the defendant advised Sergeant First

Class Billy O’Neil that he would not take part in any in-

duction processing. He was then escorted to the office of

the Assistant Processing Officer, Lt. Larry J. Petrie. Petrie

advised him that a refusal to process constituted a felony

punishable by imprisonment for not more than 5 years

and/or a fine of not more than $10,000 or both. Defendant

advised Petrie that he was aware of the penalty for refus-

ing to process. Defendant then presented to the processing

officer a prepared statement containing his reasons for re-

fusal to process for induction.’ At that time he wrote on the

1The defendant said “* * * the Draft and Victnam war seem

to me indefensible. The laws of the Selective Service System are

_ not worthy of obedience. * * *” His complete statement reads:

_ “To my fellow Americans. Today I am refusing to be in-

ducted into the United States armed forces. This is a result

of my decision last fall to return my draft cards and refuse

further cooperation with the Selective Service System.

“Conscription seems to me fundamentally authoritarian and

anti-democratic. Its coercive attempts to control the lives of

young American men are socially disastrous and humanly out-

rageous. Primarily, the draft functions to supply the man-

power necessary for those few holding real political and mili-

tary power in this country to continue to commit crimes

against humanity in waging a cruel and senseless war in

Southeast Asia. Both the Draft and the Vietnam war seem

to me indefensible. The laws of the Selective Service System

are not worthy of obedience. Those who feel that my decision

is ‘idealistic’ and ‘impractical’ make the mistake of assuming

that there can be a real division between morality and politics.

Those people who are called ‘realists’ and compromise on the

most crucial of issues, and those who are silent, are furthering

the present disastrous course of this country.

“But we are none of us innocent. I am simply asking that

each of you examine your thoughts and your actions. As for

myself, I shall probably be in prison before too long, and out

again after a few years. This is a small price to pay compared

to what so many, many American men and Vietnamese men,

women, and children have to pay. To those in the military,

I ask that you consider resigning or obtaining a discharge.

To my fellow young men, in particular, I ask that you find ;

some alternative—any alternative—to military service.

“Many of you will disagree with me; I respect your posi-

tion, and only ask that you reconsider. Many will agree; I

hope that you do as much as you are capable of doing. We

have so little time.

/s/ Dave GuTKNECHT

“Dave Gutknecht

January 24, 1968”

statement, “I refuse to take part, or all, (sic) of the pre-

scribed processing,” and signed his name.

It was not contended at trial that the defendant’s clas-

sification was improper. There is a basis in the record for

the 1-A classification made by Local Board No, 115.

The essential elements required to be proved by the

government are (1) that a lawful order to report for in-

duction on January 24, 1968 was issued by Local Board

No. 115; (2) that the defendant refused to obey the order

to report for, and submit to, induction; and (3) that the

defendant acted wilfully, unlawfully and knowingly.

There is no dispute as to the facts, but the defense

offered by the defendant is that (1) the defendant actually

did report for induction but was not afforded the oppor-

tunity to go through the regular formal induction cere-

mony prescribed by the pertinent regulations, and until

such formal ceremony is afforded him he has not refused

induction; and (2) the induction order, while apparently

based on non-possession of classification and registration

cards, was in fact directed at his anti-Vietnam activities

and thus violated his right to free speech.

The defendant urges, in connection with his first de-

fense, that an order to report for induction does not in-

clude the duty to submit to induction without proof that

the defendant was offered the opportunity to participate in

a formal induction ceremony. The defendant urges that

regulations AR 601-270, Par. 37 and AR 601-270, Par.

40(c) require that a potential inductee into the armed

forces must be afforded an opportunity to take “one step

forward” as a signal of his departure from civilian, and

entry into military discipline, and that this formal induc-

tion ceremony was not afforded the defendant. The de-

fendant urges that a making of the statement,

AP Oi aah R SORTED Mo

“You are about to be inducted into the armed forces

of the United States, in the Army, the Navy, the Air

Force, or the Marine Corps, as indicated by the serv-

ice announced following your name when called. You

will take one step forward as your name and service

are called, and such step will constitute your induc-

tion into the armed forces indicated,”

was a condition precedent to induction, but that procedure

was not followed.

There is no dispute in the record that such was not

done, and it appears that the reason is that the “step for-

ward” procedure under the regulations is only to be taken

after the inductees are given mental and physical tests

in order to determine their eligibility for service in the

armed forces. This defendant refused to take the physical

or mental tests or participate in any other procedure

incident to induction.

[1, 2] Here the defendant is not being charged with

failure to take “one step forward,” but with failure to

comply with the Board’s order to report for, and submit

to, induction. It is clear from the regulations that an order

of a draft board to report for induction also encompasses

an order to submit to induction. 32 C.F.R. -§ 1632.14, a

part of the Selective Service Regulations promulgated by

the President under authority of the statute, provides that

it is the duty of the registrant upon receiving an order to

report for induction to (a) report for induction at the

time and place fixed in such order, and (b) to submit to

such induction.

This regulation was initially adopted by Executive Order

10001, 13 F.R. 5488, September 21, 1948, amended by

Executive Order 10659, 21 F.R. 1103, February 17, 1956,

_ ————— pte il: MEDI MI

and by Executive Order 10984, 27 F.R. 200, January 9,

1962. |

The Congress of the United States has specifically au-

thorized the President to prescribe these, and other, rules

and regulations to carry out the provisions of the Selec-

tive Service Act by 50 App. 460(b) (1).

The courts have held that the duty to report for in-

duction contemplates the duty not only to report, but also

to submit to induction. United States v. Collura, 139 F.2d

345 (2d Cir. 1943). The Supreme Court in Billings v.

Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1944),

said:

“He who reports to the induction station but refuses

to be inducted violates §11 of the Act as clearly as

one who refuses to report at all. [Citations omitted.]

The order of the Local Board to report for induction

includes a command to submit to induction. * * *”

Later the Supreme Court in Estep v. United States, 327

. US. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), quoted Billings

v. Truesdell, supra, as authority for the proposition that

an order to report for induction includes the duty to sub-

mit to induction. Two subsequent decisions of the Court

of Appeals, Ninth Circuit, are to the same effect. Williams -

v. United States, 203 F.2d 85 (1953); Bradley v. United

States, 218 F.2d 657 (1954).

The defendant argues that a subsequent Ninth Circuit

ease, Chernekoff v. United States, 219 F.2d 721 (9th Cir.

1955) is contrary. But it will be observed in reading that

case that the facts in it are distinguished from those in

Williams and Bradley.

Defendant’s counsel admits that this first defense is

a “technical” one. In the court’s view, it is not a merito-

rious one.

[3] Defendant’s second defense is that the declaration

of delinquency and the direction to report for induction

were occasioned by his participation in an anti-Vietnam

protest meeting and that the induction order based on

such activities violates his right to free speech.

It appears from the Selective Service Board file that

on October 16, 1967 the defendant did participate in a

“Stop the Draft Week” demonstration at the federal office

building in Minneapolis, and that during the demonstra-

tion he attempted to turn over his Selective Service card

and registration card to a Deputy U. S. Marshal who re-

fused to accept them. The defendant then dropped both

cards at the Deputy Marshal’s feet, together with mimeo-

graphed literature explaining his actions.

There is nothing in the Selective Service file or in any

of the evidence received at trial to support the assertion

that defendant’s classification as a delinquent and, order

to report for induction were based on his expressions of

opposition to the Vietnam war. But on the contrary, it

appears that the action of the Selective Service Board

was based on the defendant’s violation of the regulations

that he have the required draft cards in his possession

at all times. 32 C.F.R. § 1617.1, 32 C.F.R. § 1623.5. It

is not disputed that this defendant did not have his regis-

tration certificate (SSS Form No. 2) and his valid notice

of classification (SSS Form No. 110) in his possession at

all times.

In such circumstances the Selective Service Board was

authorized to declare the defendant delinquent and to order

— i AEE LLEN LEE LLL LALLA EAL

him to report for induction. 32 C.F.R. §§ 1602.4, 1642.4,

1631.7.

[4] But the defendant contends, nevertheless, that the

discarding of his draft cards was symbolic conduct in pro-

test to the Vietnam war, and that such conduct is pro-

tected by the First Amendment to the United States Con-

stitution. The United States Supreme Court has not

passed on that exact question, but two Courts of Appeal

have. United States v. Miller, 367 F.2d 72 (2d Cir. 1966) ;

O’Brien v. United States, 376 F.2d 538 (1st Cir. 1967).

In O’Brien the court upheld the constitutionality of the

regulations authorizing a Selective Service Board to de-

clare delinquent, and order the induction of, persons found

to be without possession of the required Selective Service

ecards, and in Miller the court upheld the constitutionality

of Section 462(b) (3) which punishes the knowing destruc-

tion of draft cards, It is expected that the Supreme Court

of the United States may soon pass on the constitutionality

of a recently enacted Act making it a crime for a person

to burn his draft card. That is a separate crime and not

charged here.

Reference was made in the trial to a certain Local

Board memorandum issued by National Selective Service

System Director Hershey recommending procedures to be

followed by local Selective Service Boards in the cases

of registrants participating in anti-Vietnam demonstra-

tions. The evidence in the record clearly shows that this

defendant was declared delinquent and ordered to report

for induction, not by authority of the so-called Hershey

memorandum, but because of the defendant’s non-posses-

sion of the required Selective Service cards i in violation of

the regulations.

“y

{5] The Court has fully considered the exhibits, the testi-

mony of the witnesses and has judged their credibility.

The defendant is clothed with the presumption of inno-

cence and his guilt must be proved beyond a reasonable

doubt.

[6] In my view the United States has proved beyond +

a reasonable doubt every essential element of the crime

charged in the indictment and the Court finds the de- |

fendant guilty of the crime charged in the indictment. The

foregoing expression is intended to comply with Rule 23

of the Federal Rules of Criminal Procedure.

The Probation Officer is directed to prepare a pre-

sentence investigation report.

SAAR: AE Aisa dtl

Opinion of the United States Court of Appeals

for the Eighth Circuit

UNITED STATES COURT OF APPEALS

For tHe Eicutu Ciscuit

No. 19,407

Unitep States or AMERICA,

Appellee,

—_vV -—

Davip Eart GuTKNECHT,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MINNESQTA ;

[January 20, 1969.]

Before:

Mattues, Gisson and Lay,

Circuit Judges.

Lay, Circuit Judge.

Defendant appeals his jury-waived conviction of vio-

lation of the Selective Service Law. On June 21, 1967, de-

fendant was classified 1-A by his local draft board after

a review of his claimed status as a conscientious objector.

Defendant appealed to his state appeal board which, on

November 1, 1967, approved his 1-A classification. On De-

cember 20, 1967, his local board declared him delinquent

for failure to have in his possession his registration card

and classification card. He was ordered to report for in-

duction into the Armed Services on January 24, 1968. On

that date he reported to his place of induction but advised

army officials he would not take part in any induction

processing, including the preliminary physical examination.

Defendant was then properly warned of the penalty and

at that time gave to the army officers a prepared statement

which said in part: “... the Draft and Vietnam War seem

to me indefensible. The laws of the Selective Service Sys-

tem are not worthy of obedience. ...” .

The full iext of the district court’s well-reasoned opin-

ion is found in 283 F.Supp. 945. We affirm. Defendant,

relying upon Chernekoff v. United States, 219 F.2d 721

(9 Cir. 1955), asserts that the letter of the law was not

carried out in that he actually did report for induction but

was not afforded the opportunity to go through the regular

formal induction ceremony. The defendant additionally

‘complains that the indictment was “duplicitious” in that it

stated two different offenses in one count, to-wit, failure

to report and failure to submit to induction. Defendant

urges that the phraseology of the indictment requires the

government to prove both charges beyond a reasonable

doubt or fail to convict.

As the district court relates, the United States Supreme

Court in Billings v. Truesdell, 321 U.S. 542, 557 (1944) has

answered these arguments:

“Tt must be remembered that §11 imposes on a selec-

tee a criminal penalty for any failure ‘to perform any

duty required of him under or in the execution’ of the

Act ‘or the rules or regulations made pursuant thereto.’

He who reports to the induction station but refuses

to be inducted violates $11 of the Act as clearly as one

who refuses to report at all [cite omitted]. The order

of the local board to report for induction includes a

command to submit to induction. Though that com-

mand was formerly implied, it is now express.”

On October 16, 1967, defendant participated in a

“Stop-the-Draft-Week” demonstration in Minneapolis. He

dropped his Selective Service registration card as weli as

his classification card at the Deputy United States Mar-

shal’s feet. He attached with them a mimeograph ex-

planation of his action. On December 20, 1967, the defen-

dant was declared delinquent by his local board for failure

to have possession of his registration card and his notice

of classification. Immediately thereafter defendant was or-

dered to report for induction on January 24, 1968.

Defendant now claims that he was being unlawfully pun-

ished for his political views on the Vietnam War and states

that the board’s punitive action was in violation of his

First Amendment rights. The district court, however,

found that there was no evidence at frial to sypport de-

fendant’s contention that his delinquency order was based

upon his political views. The district court found that the

delinquency order was based upon the defendant’s violation

of the regulation that he have the required cards in his

possession at all times. 32 C.F.R. §§ 1617.1 and 1623.5.

The district court found that the delinquency order and

the order for induction were therefore authorized under =

C.F.R. §§ 1602.4, 1642.4 and 1631.7.

By placing his draft certificates beyond “continuing

availability,” Gutknecht “wilfully frustrated [a] govern-

mental interest.” It is now settled that such frustration was

“non-communicative” and is not protected by First Amend-

ment principles. United States v. O’Brien, 391 U.S. 367

(1968).

Moreover, we are not confronted with an illegal reclassi-

fication which revokes a statutory exemption, as in Oeste-

reich v. Selective Service System Local Board No. 11,

37 U.S.L.W. 4053 (U.S.Sup.Ct. 1968). Although found

delinquent by the local board on December 20, 1967, the

order of delinquency did not relate to a reclassification.

Defendant had been classified 1-A since June 21, 1967.

Defendant makes no claim upon appeal that his 1-A classi-

fication was not based on evidence or that he was denied

fair administrative procedures in regard to his classifica-

tion. Adriittedly, defendant’s induction date was advanced

pursuant to Tit. 50 U.S.C. § 456(h) (1) which gives priority

of induction to “delinquents.” The regulations (32 C.F.R.

§ 1631.7) specify the order of induction based upon a

specified priority of status of all persons having 1-A or

1-A-O status. This priority is administratively created.

We know of no legal reason why the order of call cannot

be administratively altered as long as it is done “impar-

tially” without discrimination. Congress has authorized:

“The selection of persons for training and service -

_.. Shall be made in an impartial manner, under such

rules and regulations as the President may prescribe,

from the persons who are liable for such training and

service and who at the time of selection are registered

and classified, but not deferred or exempted .. .”

(Emphasis ours.) Tit. 50 U.S.C. § 455(a) (1).

We emphasize we are not confronted here with a reclassifi-

cation which has no basis in fact or which attempts to

——_

deprive the defendant of any existing statutory exemption

or deferment.

The board is given certain administrative discretion in

carrying out congressional policy. This discretion should

be upheld as long as it is reasonably related to a govern-

mental interest and is not otherwise exercised unlawfully.

In the instant case the board’s regulation concerning pos-

session of the registration card is a reasonable one and

related to government interests. See United States v.

O’Brien, supra. The board’s self-promulgated definition of

“delinquency” is not unreasonable when its effect does not

otherwise punish an individual by depriving him of a right

given him by statute. It is only “that use of delinquency”

which is proscribed by the Oestereich case. Here the de-

fendant does not claim any kind of deferment, let alone

exemption. Involved here is the order of call for induction

of those already classified 1-A. Since the order of call is

governed by regulation (1631.7) reasonable conditions may

be administratively attached to it. Although a local board

may not arbitrarily or discriminatorily abuse the order of

call,’ if it is reasonably and impartially administered there

can exist no legal fault in its administrative handling.

To establish irregularity in the board’s findings of “de-

linquency,” the adjudicated effect of the board’s action

becomes the relevant test. Here the defendant is not de-

prived of either statutory exemption or deferment; here

the board gave notice to him that he was delinquent under

its regulations for failure to have his certificate; here he

was given a reasonable period to correct this delinquency ;

here he had statutory notice that he was subject to be

drafted ahead of those in the “prime age group.” Defen-

* Cf. United States v. Lybrand, 279 F.Supp. 74 (E.D. N.Y. 1967).

dant’s right to be called in order was one which had been

given only by administrative grace and which had been

reasonably conditioned upon overall compliance with the

Selective Service laws. The evidence is clear that defen-

dant violated these laws. Under these circumstances in-

duction of the defendant was not lawless or irregular.

Judgment affirmed.

STATE HEADQUARTERS

SELECTIVE SERVICE SYSTEM

100 East Tenth Street

Saint Paul, Minnesota 55101

17 October 1967

REGISTERED MAIL

Mr. George Hollingsworth

Special Agent, FBI

392 New United States Courthouse

Minneapolis, Minnesota 55401

Dear Mr. Hollingsworth:

In accordance with your request of this date enclosed

are three Notices of Classification (SSS Form 110) and one

Registration Certificate (SSS Form 2) for the following:

David M. Ponce (SSS Form 110)

21-5 1-46-765

David Earl Gutknecht (SSS Form 2)

21-115-47-162 (SSS Form 110)

Terry Zane Munn (SSS Form 110)

41-31-44-1035

Sincerely yours,

EDWARD P. BARROWS

Colonel, JAGC

Deputy State Director

EPB:ss

Enclosures: 4

ce: Col. Knight

19 October 1967

Mr. George Hollingsworth

Special Agent, FBI

392 New United States Courthouse

Minneapolis, Minnesota 55401

Re: Gutknecht, David Earl

SSN 21-115-47-162

Dear Mr. Hollingsworth:

This letter is to supplement previous correspondence and

to inform you that David Earl Gutknecht is registered with

Selective Service Local Board No. 115, Sibley County, Gay-

lord, Minnesota. This registration was accomplished on 20

December 1965.

David Gutknecht’s date of birth is 9 December 1947. He

has filed SSS Form 150, a special form for conscientious

objectors, with the local board. His file is currently before

the Minnesota Appeal Board for adjudication.

Enclosed for your use is a copy of a letter dated 16 Octo-

ber 1967 from the Hennepin County Selective Service Chief

Clerk, Mr. Merrill J. McCabe

Sincerely yours,

EDWARD P. BARROWS

Colonel, JAGC

Deputy State Director

Enclosure

EPB/mka

ce: U.S. Attorney

Colonel Knight

John Roberts, SA

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF INVESTIGATION

392 Federal Building U. S. Court House

110 South Fourth Street

Minneapolis, Minnesota 55401

October 24, 1967

In Reply, Please Refer to

File No. 25-10726

Edward P. Barrows

Colonel, JAGC

Deputy State Director

Selective Service System

100 East Tenth Street

St. Paul, Minnesota 55101

Dear Colonel Barrows:

Re: Gutknecht, David Earl

Selective Service Number

21-115-47-162

Reference is made to your letter dated October 19 1967

with an enclosure of a letter dated October 16, 1967 from

Mr. Merrill J. McCabe which sets forth that Gutknecht’s file

is currently before the Minnesota Appeal Board for adjudi-

cation.

This office is currently conducting an investigation rela-

tive to Gutknecht dropping his draft card at the F ederal Of-

fice Building on the morning of October 16, 1967.

It would be greatly appreciated if Gutknecht’s Selective

Service file could be reviewed, and Special Agent George

Hollingsworth of this office will appear at your headquar-

ters October 25, 1967.

Very truly yours,

/s/ Richard G. Held

Special Agent in Charge

UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES ATTORNEY

DISTRICT OF MINNESOTA

$96 U.S. COURTHOUSE

MINNEAPOLIS, MINNESOTA 55401

Address Reply to

United States Attorney

and Refer to

Initials and Numbers

JEC:dmp

November 16, 1967

Colonel Edward P. Barrows

Deputy State Director

Selective Service System

100 East Tenth Street

St. Paul, Minnesota 55101

Re: David Earl Gutknecht

Selective Service Number

21-115-47-162

Dear Colonel Barrows:

On October 16, 1967, the above-captioned individual par-

ticipated in a demonstration at the Federal Office Building,

Minneapolis, Minnesota, in connection with “Stop the Draft

Week.”

During the demonstration, he attempted to turn over his

Selective Service card and registration card to a deputy United

States Marshal who refused to accept them. He then dropped

both cards at the deputy’s feet together with mimeographed

literature explaining his actions.

In the mimeographed literature dropped y Gutknecht he

stated that his application for classification as a conscien-

tious objector was to be destroyed.

An agent of the Federal Bureau of Investigation attempted

to interview Gutknecht at the Twin Cities Information Cen-

ter, 1822 Fourth Avenue South, Minneapolis. He, however,

refused to sign the Waiver of Rights form and refused to

make any statement.

The above information is furnished your office for your

consideration in the light of Selective Service regulations.

Would you please advise us of any action taken by you in

the matter so that we will be able to make a prosecutive

decision on the above-captioned individual’s failure to pos-

sess a certificate of registration and a valid notice of classi-

fication.

Very truly yours,

/s/ PATRICK J. FOLEY

United States Attorney

By: J. EARL CUDD, Assistant

United States Attorney

SELECTIVE SERVICE SYSTEM

DELINQUENCY NOTICE

—___._ Bee. 20,1967

LOCAL BOARD NO. 115 pesca

Sibley County oo lO SS

{ Court House ’ ee

' Gaylord, Minnesota

flece! beord tome,

“ Lt Marl Ontiznecht _ a | us hy | 162

Add 524 12th _ Avo, S.E.

(Sereet ond Number o RFD Revie)

Minnespolis,Minn, 55414

(Cay, Town, a Villege) (Covarty) (brore) (20 Com

1. You are hereby notified’that this Lucal Board has declared you to_be a delinquent because of your failure to perform the &

lowing duty or duties required of you under the selective service law ‘Sor failcre to comply vith 1657.1 en

1623.5,0f the Seloctive Service rogulations which requires evory rogistrent to h-v

‘jin bis session at all tirss a Selective Service Recistration Card,SS3 Form Yo.2

af Hotics of Classification, SSS Porm [o,110,which hss been issued to hin by his

local board,

Valid evidence ha3 been subzittod to his local board vhich sets forth the facts tit

you hrve not,at all tines seni do not now hivo in your possossion a Ferictration

‘| Certificate, SSS Form Ho.2 ani Notice of Claesification,SSS Fora Mo.110,iscue’ to

you by this loenl boord,

2. You are hereby directed to report to this Local Board immediately in person or by mail, or w take this notice to the Local Burt

mearen you for advice as to what you should do

3. Your willful failure to perform the foregoing duty or duties is # violation of the Universal Military Training and Service ko

as amended, which is punishable by impri for as much as 5 years or a fine of as much as, $10,000. or by both such fine at

imprison ment. You may be classified in class I-A as delinquent and ordered to report for induction

Li? F Li be

5 (same: an Gere of loco! bee 4)

INSTRUCTIONS

A Delinquency Notice (SSS Form 304) shall be prepared by the Local Board whenever it declares the registrant to be a delinge™

because of his failure to any duty or duties required of him other than Gilure to comply with an Order to Report fo le

duction (SSS Form 252), or an Order to Report for Civilian Work and Statement of (SSS Form 153). This notice sha!

be prepared in , and the specific duty or duties which the registrant has failed to perform shall be described in detail o ©

space provided ee en ae Se es Oe See sane. 0) Se 0 cgy & Se

trant’s Cover Sheet (SSS Form 101), and (c) mail « capy to the Sute of Selective Service.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.