United States v. Jacques, 71-1391.

Decision Date07 July 1972
Docket NumberNo. 71-1391.,71-1391.
Citation463 F.2d 653
PartiesUNITED STATES of America, Appellee, v. Norman J. JACQUES, Defendant-Appellant.
CourtU.S. Court of Appeals — First Circuit

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John G. S. Flym, Cambridge, Mass., with whom Flym, Geller, Miller & Taylor was on the brief, for appellant.

Constance L. Messore, Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on the brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Appellant was tried before a jury and convicted under 50 U.S.C. App. § 462(a) for refusal to submit to induction into the armed forces. He raises a number of issues on appeal. Our resolution of two of these issues requires that the conviction be reversed and the case remanded to the district court for further proceedings.

Appellant registered with his local board in Pawtucket, Rhode Island, in 1961 and was classified I-A (available for military service). He held a II-S (student) deferment briefly in 1964, and after being reclassified I-A in that year was ordered to report for a preinduction physical examination. At the examining station on October 8, 1964, appellant was found unacceptable for induction under applicable medical standards in light of a disability in his right leg, apparently the result of an automobile accident in 1963. The "Statement of Acceptability," in addition to reporting this finding of physical disqualification, noted that re-examination in six months was justified. However, appellant was neither reexamined nor reclassified as a consequence of this preinduction physical. The I-A classification was retained until September 1965, when, as a member of the Rhode Island legislature, appellant was classified IV-B (official deferred by law).

After appellant no longer held state office he completed a Classification Questionnaire sent to him by the local board. He returned this form on January 6, 1969, noting under disqualifying physical conditions his "permanent partial disability of the right leg." At the January 8 meeting of the local board he was classified I-A and ordered to report for a physical examination. Appellant did not appeal this classification nor did he request a personal appearance. He was subsequently found physically acceptable and was ordered to report for induction. On September 2, 1969, appellant refused to take the symbolic step forward, for which he was indicted, tried, and convicted. We deal initially with those claims that do not compel reversal.

I

Appellant urges on three separate grounds that the Military Selective Service Act, 50 U.S.C. App. §§ 451-473, is unconstitutional. His arguments find their roots in The Report of the President's Commission on All-Volunteer Armed Forces (Gates Commission Report) (February 1970) which recommended, inter alia, that the nation switch from a draft system to an all-volunteer army. Appellant argues that conscription at below-average pay levels violates the constitution because (1) it imposes a tax arbitrarily on those of draft age, (2) an all-volunteer force would be a less burdensome alternative, and (3) Congress has no power to compel service in an undeclared overseas war at artifically low pay. We have previously recognized the constitutionality of the current system of conscription, United States v. Diaz, 427 F.2d 636 (1st Cir. 1970), and we are not persuaded by appellant's arguments to the contrary.

The Act is not a taxing statute, and any indirect effect on the earning power of draftees is not constitutionally violative. The statutory provisions were passed not under Congressional taxing power, but pursuant to the Constitution's grant of power to raise and support armies. Art. 1, § 8. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Selective Service Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918). This power is broad and sweeping, Lichter v. United States, 334 U.S. 742, 755-758, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948), and must necessarily include the method of conscription.

"As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem too frivolous for further notice . . . . Further it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power." Selective Service Draft Law Cases, supra at 377-378, 38 S.Ct. at 161.

The constitutional grant of power to raise and support armies, Art. I, § 8, is explicitly no more dependent on a declaration of war than are other powers enumerated in that section. See, e. g., United States v. Mitchell, 369 F.2d 323 (2d Cir. 1966), cert. denied, 386 U.S. 972, 87 S.Ct. 1162, 18 L.Ed.2d 132 (1967). The only expressed limitation is that appropriations not be used for longer than two years. That there has been no formal declaration of war does not, therefore, affect the Congressional power of conscription. United States v. Perrin, 431 F.2d 875 (9th Cir. 1970). See United States v. O'Brien, supra 391 U.S. at 377, 88 S.Ct. 1673, 20 L.Ed.2d 672. But see Holmes v. United States, 391 U.S. 936, 936-949, 88 S.Ct. 1835, 20 L. Ed.2d 856 (1968) (Justice Douglas dissenting).

II

Appellant complains of a due process violation by the court's refusal to allow his attack on the constitutionality of the war in Southeast Asia. Since, as noted supra, the power to raise an army is separate from the power to wage war, the court correctly excluded appellant's evidence. United States v. Hogans, 369 F.2d 359 (2d Cir. 1966). See also Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971).

III

The district court also excluded evidence that the appellant, in refusing induction, relied on the advice of counsel that the induction order was invalid. He asserts this was error because such evidence was relevant to his specific intent to violate the law. As we stated in United States v. Couming, 445 F.2d 555, 557 (1st Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 291, 30 L.Ed.2d 266 (1971), the essential elements of intent are knowledge of the requirements of the law and deliberate non-compliance. Appellant testified that he was informed and was fully aware that his actions would constitute a felony. Since it is evident that he was aware of his legal obligation and had a deliberate purpose not to comply, see United States v. Rabb, 394 F.2d 230 (3d Cir. 1968), his attorney's advice amounts to no more than a statement that he would probably have a successful defense to a criminal prosecution. The proffered evidence does not negate specific intent and was properly excluded. Cf. United States v. Boardman, 419 F.2d 110 (1st Cir. 1969), cert. denied 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).

IV

Appellant further contends that the local board improperly classified him I-A on January 8, 1969. He points out that he had been found physically unacceptable in his only previous physical, that other matters in his file buttressed rather than rebutted his physical condition, and that consequently he was entitled to a physical deferment classification (I-Y or IV-F). However, as the government points out, appellant did not pursue the avenues of administrative relief. A registrant may not ordinarily attack the basis in fact for his classification unless he has exhausted his administrative remedies. United States v. Pringle, 438 F.2d 1216 (1st Cir. 1971). The purposes of exhaustion would have been served by further factual development and application of the board's expertise, see McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), and the Selective Service System should be given an opportunity to correct its own mistakes. United States v. Quattrucci, 454 F.2d 58 (1st Cir. 1972), cert. denied, 406 U.S. 960, 92 S.Ct. 2071, 32 L.Ed.2d 347 (1972). Appellant is thus foreclosed from attacking his classification unless his failure to exhaust is excused, see Part VI, infra, in which case he would be entitled to an acquittal and his claim of improper classification would be rendered moot.

V

Appellant claims additionally that the members of the board relied unduly on the executive secretary's prescreening of files. We would not, of course, condone a total delegation. Again, however, appellant's claim is precluded by failure to exhaust, United States v. Quattrucci, supra; cf. DuVernay v. United States, 394 F.2d 979 (5th Cir. 1968), aff'd by an equally divided Court, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969); United States v. Tobias, 447 F.2d 227 (3d Cir. 1971), unless the failure is excused, in which case, see infra, the claim would be moot.

VI

Finally, appellant contends that he was deprived of his administrative rights of personal appearance and appeal, and thereby of due process, by the misleading advice of the board's executive secretary, Miss Lallouette. The record evidence presents strong factual support for this contention. According to the uncontradicted testimony of the appellant, upon receipt of his Notice of Classification in January 1969 he telephoned the local board to press his claim for a physical deferment. He spoke with Miss Lallouette, who told him that it was not up to the board to decide medical issues, but that such decisions rested with the army. Appellant asked if he could speak with the board concerning his medical circumstances, whereupon the executive secretary reiterated that the board did not pass on such questions, but that he would have to report for his army physical and that the board would go by the results of that examination....

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