United States v. Butler, 17579.

• Decision Date: 08 February 1968
• Docket Number: No. 17579.,17579.
• Citation: 389 F.2d 172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Smeltz BUTLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 172 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Donald Smeltz BUTLER, Defendant-Appellant.

No. 17579.

United States Court of Appeals Sixth Circuit.

February 8, 1968.

Ralph Rudd, Cleveland, Ohio (Rudd, Ober & Miller, Cleveland, Ohio on the brief), for appellant.

Marvin M. Karpatkin, New York City (Bernard A. Berkman, Cleveland, Ohio on the brief), As Amicus Curiae for American Civil Liberties Union.

James L. Oakar, Cleveland, Ohio (Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on the brief), for appellee.

Before O'SULLIVAN, PHILLIPS, and CELEBREZZE, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Appellant was sentenced to five years imprisonment for knowingly failing to report for induction into the armed forces, in violation of Title 50, U.S.C., App. §§ 456 and 462. No claim is made of any administrative unfairness or lack of procedural due process in the Selective Service Board's rulings. Appellant admits he knowingly failed to report, and defends solely on the ground that at the time he was ordered to report for induction (February 4, 1964) the draft law was unconstitutional in that it would have deprived him of his liberty and perhaps of his life without due process of law, in violation of the Fifth Amendment to the Constitution of the United States. This is so, he says, because the Congressional purpose to provide for the common defense could have been accomplished by less drastic means than conscription if incentives for voluntary enlistment had been improved, chiefly by increased pay and opportunities for training.

A Judge of the United States District Court for the Northern District of Ohio, Eastern Division, to whom the case was tried, rejected the defendant's constitutional defense and his evidence bearing on alternatives to the draft, including speeches of members of Congress, a study by the Defense Department of the draft selection system, the expert testimony of an economist, and testimony by an Assistant Secretary of Defense before the House Committee on Armed Services. All of this, appellant asserted, would demonstrate that the manpower needs of the United States could have been satisfied by a wholly voluntary system on the date in question, February 4, 1964. The remedy sought is for the case to be remanded to the trial court for a new trial, with direction to permit the defendant to subpoena in advance of trial relevant studies in the hands of the government and to place in evidence data bearing on the issue of the necessity for the draft. The trial judge would then, upon his evaluation of the evidence, determine whether or not conscription was reasonably necessary at the time of the defendant's alleged offense, and if not, would acquit the defendant on the ground that such lack of necessity rendered the draft law unconstitutional.

Appearing as amicus curiae, the American Civil Liberties Union urges on behalf of appellant that he should have "the right to attempt to prove unconstitutionality." On page 2 of its brief it is stated:

"Amicus takes no position on the merits of the constitutional argument. We do not argue that the draft, on February 4, 1964, or on any other day, was constitutional or unconstitutional. * * *

"Amicus does urge, however, that appellant should have had the right to challenge its constitutionality, which right was denied by the trial court\'s action in quashing subpoenas, denying motions for subpoenas, and refusing to hear relevant testimony in support of the claim of unconstitutionality. Accordingly, amicus\' position here is essentially procedural."

We could agree that a litigant charged with disobedience of a Congressional Act should have "the right to attempt to prove unconstitutionality" of the Act in question. But if the evidence proffered to prove unconstitutionality would not in its totality and under a view most favorable to the defendant, prove unconstitutionality, the trial judge does not have to receive it. Appellant claims no other support for his challenge to the constitutionality of the draft law than the asserted fact that on February 4, 1964, the day he refused to report for induction, the national defense could as well, or better, have been served by an army made up of volunteers, attracted to military service by better pay and better living conditions. He argues that had this system of providing for the national defense been in effect on or before the day appellant refused induction, February 4, 1964, there would have been no need to draft appellant Butler — therefore, to do so was an unconstitutional deprivation of his liberty. Stated in the language of appellant's statement of questions involved, his position is:

"The claim of lack of necessity is founded on the proposition that at the time the defendant was ordered to be inducted, February 4, 1964, the military manpower procured by the draft could have been procured by voluntary means if incentives for enlistment had been improved, in the form chiefly of higher pay and better opportunities for training and education." (Emphasis added.)

In its amicus brief, the American Civil Liberties Union states the question as follows:

"Is compulsory military service such a deprivation of individual liberty that the constitutional guarantee of due process under the Fifth Amendment must permit a defendant who refuses to submit to induction to challenge the constitutional validity of the induction order on the grounds that at the time he refused to submit there was no overriding need of national security which could not be satisfied through less onerous means?" (Emphasis added.)

Appellant does not claim that an army of the size then under arms was not necessary for the national defense on February 4, 1964, the day of his alleged offense. The army was brought into being by voluntary enlistments, and by employment of the Universal Military Training and Service Act. The charge is that Congress should not have adopted conscription as one of the means of maintaining the needed army; it is not claimed that voluntary enlistments under the system then in force did provide, or could have provided, such an army. In his brief's address to us, appellant makes clear his position as follows:

"First of all we must make it clear that it is not suggested that the military forces of the United States were not needed or should have been smaller, less well trained, or less effective than they were in the period of the defendant-appellant\'s refusal of induction. Indeed what is sought to be proved is that by improved pay and other incentives and by certain reasonable adjustments of organization, armed forces fully voluntary but at least equally effective and probably better trained and more efficient could have been provided. And if Congress had determined to preserve the Selective Service System as a stand-by mechanism for rapid increase of military manpower in event of necessity, that would not militate against the appellant\'s defense." (Emphasis added.)

At another place, the appellant states his position in this way:

"Appellant does not question the existence of the power to conscript when it is necessary. We question only whether it was necessary at the time of the defendant-appellant\'s alleged violation of the Act." (Emphasis added.)

And in its amicus brief, the ACLU quotes from its January 30, 1966, statement of policy on "Military Conscription":

"How can this statement of position be applied realistically in the context of the present draft system? At the moment we see no constitutional, legal challenge that can be brought against conscription per se or the monthly draft calls, but it is possible that an individual case may arise which might bring a civil liberties issue into focus. The major thrust, therefore, must come in the legislative forum, an appropriate arena for debate on the need for a particular conscription."

We have read the appellant's exposition of the content of his proffered evidence. It consisted in the main of various statements by members of Congress, some excerpts from reports of studies made by the Department of Defense, and evidence that would have been given by an expert witness. Giving this data a view most favorable to appellant's defense, it was to the effect that Congress could have found a better way to raise an admittedly needed army than the system in force at the time appellant refused to report for induction. The Appellant's brief summarizes his proffered evidence as follows:

"It is clear that there is a substantial body of opinion among the members of Congress who have studied the draft that it would be highly desirable to abolish it and to rely upon a wholly volunteer force. None of them wants to weaken nor undermine the strength or quality of our national defense in the process, and none states a firm conclusion that the draft can be abolished and a wholly volunteer force can be maintained at reasonable cost. (Emphasis added.)

"However, many of them point out that whatever increase in cost there might be in raising salaries in the armed forces to attract more volunteers would be at least partially offset by the economics of reducing turnover and thus reducing training cost, employing civilians or civilian contractors to perform more of the administrative and supply functions, delegating to civilian institutions the teaching of skills needed by the military that have civilian counterparts, and improving the efficiency of military operations in other respects, such as by fitting assignments to abilities more closely.

"Many of the members of Congress point out that incentives other than increased pay can also be used to help attract volunteers. Among the suggestions are improved opportunities for education and the learning of job skills before, during and after military service; and improved recruiting and public relations activities.

"Many of the Congressmen believe it likely that by combining monetary and non-monetary incentives the increased costs of a

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