439 F.2d 1349 (8th Cir. 1971), 20339, United States v. Alarik

Docket Nº:20339.
Citation:439 F.2d 1349
Party Name:UNITED STATES of America, Appellee, v. John Scott ALARIK, Appellant.
Case Date:March 29, 1971
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1349

439 F.2d 1349 (8th Cir. 1971)

UNITED STATES of America, Appellee,

v.

John Scott ALARIK, Appellant.

No. 20339.

United States Court of Appeals, Eighth Circuit.

March 29, 1971

Page 1350

Kenneth E. Tilsen, St. Paul, Minn., for appellant.

Robert G. Renner, U.S. Atty., Thorwald H. Anderson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before GIBSON and BRIGHT, Circuit Judges and McMANUS, Chief District judge.

McMANUS, Chief District Judge.

Appellant was indicted and convicted below for refusing to register for the draft in violation of 50 U.S.C. App. Section 462. He was placed on probation for three years, but when he failed to comply with the special conditions thereof, his probation was revoked and he was sentenced to two years imprisonment. We affirm.

Appellant raises two issues on appeal: 1) The district court erred in overruling his motion to dismiss based upon allegedly discriminatory enforcement of Section 462; 1 2) The district court abused its discretion in requiring registration as a condition of probation and in revoking his probation.

Appellant points out that certain public figures, including professors and clergymen, had openly advocated that individuals subject to induction under the Selective Service Act take affirmative steps to evade induction. These acts appear on their face to subject the adult counselors and abettors of draft evasion to the same penalties under § 462 as the draft evader himself. Appellant contends this constitutes a discrimination based on age between those under 26 and amenable to the draft and those who are over 26 and is thus violative of the Equal Protection Clause of the Constitution.

The Government contends there is no invidious discrimination and such discrimination that does result from a failure to prosecute the abettors and counselors of draft evasion are within the permissible range of prosecutorial discretion. Additionally, there is a basic difference between the crime of draft evasion and counseling draft evasion; and that it would be difficult to convict those merely advocating draft evasion for political or personal reasons.

It does appear that there is a basic difference in the various crimes set forth in § 462. This, however, would not excuse non-enforcement of the provisions of that section by prosecuting officials; but the failure to enforce all criminal laws is...

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