# Appendix — Gutknecht v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0138%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 396 U.S. 295 ## Text (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 Relevant Docket Entries .........20cccccccvccsvcvee 1 Dt Cees i ee eee hen etek keoweaveeenes eres 2 Order denying motion to quash, etc. ..........-0200008 3 EE i a ae ee ee eee 4 Pe sos t bce bine ses seuesdareees 7 Witnesses: Eh, adeno pena e pus ae ek oak ea eee 7 PE nary te OR ile Sp PETS 17 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 18 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 19 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. 20 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 21 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. 22 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- 23 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. 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. 25 100) 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 26 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” 27 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 28 “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 29 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. 30 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 31 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- | © 32 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. ae SAAR: AE Aisa dtl 33 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 34 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.’ 35 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 36 “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 ——_ 37 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). a 38 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. 39 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 40 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 Colonel Knight John Roberts, SA 41 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 42 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- 43 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 a4 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. © GOvteewent rrretinc Oren NO ‘WIM YoNs 0} asuodsar UT pPeTy ySnoy} se payeay aq [TeYys uoNHed oy} perueduroooe yorym Mojeq sSutpesooid au} jo 3dyzosuey oy yo Adoo poynieo Ajnp ey} yey} Perepso JayVINy st 3 puy *yeTT “ON BuzmoT TOs AT e2IeTpeumT Quewn8ze [e370 203 208 pue zBpueTeS Azeumne 943 UOC peceyd st ese. aul ‘poquels ST JIMNOND eccecccecoes YIGBTR 9f} 10} sjeoddy JO YNOD sajyeyg payUA oy) 0} EeIONIE0 Jo WIM & JOF UforOY uonyed ey] 69 61° eocce QZ UFIGV POT] THVHOILUAD ONIMOTTY WAICUO 802838 peItuN 7 * zeU0TIT30d *qyoeuq ang [28g pred 89 g) ‘way, aqonQ Serre GLTT “ON SIWVISS QINUFD Gj JO Jano suisadne --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0138%3A01. Public record. Not legal advice.