United States v. Gillette, 359

• Decision Date: 09 January 1970
• Docket Number: Docket 34021.,No. 359,359
• Citation: 420 F.2d 298
• Parties: UNITED STATES of America, Appellee, v. Guy Porter GILLETTE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

420 F.2d 298 (1970)

UNITED STATES of America, Appellee, v. Guy Porter GILLETTE, Appellant.

No. 359, Docket 34021.

United States Court of Appeals Second Circuit.

Argued December 11, 1969.

Decided January 9, 1970.

Conrad J. Lynn, New York City, for appellant.

Harold F. McGuire, Jr., Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, New York City, and Peter F. Rient, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MOORE and KAUFMAN, Circuit Judges, and RYAN,^* District Judge.

PER CURIAM:

Guy Porter Gillette was ordered to report for induction into the armed forces on December 14, 1967. He failed to report as ordered and did not submit to induction. At his trial for violation of 50 U.S.C. App. § 462 (Supp. IV, 1965-68) his sole defense was that he should have been classified as a conscientious objector. He based his attack on the validity of his I-A classification not on any procedural irregularity but on a contention that the provision of the Military Selective Service Act of 1967 which allows exemption for conscientious objectors¹ is unconstitutional as applied to him. At a pre-trial hearing, Judge Wyatt ruled that evidence as to Gillette's belief that American intervention in Vietnam was unconstitutional, illegal or immoral would be inadmissible. Finding the induction order to be valid, Judge Wyatt limited the jury trial to the issue of whether Gillette's failure to report was knowing and willful.

Evidence derived from Gillette's selective service file and from his testimony before Judge Wyatt reveals that Gillette's beliefs were based on humanism and were specifically directed against the war in Vietnam. His position seems to include a willingness to defend his homeland if it were attacked and to fight to enforce a United Nations decision against a country accused of breaking the peace. Judge Wyatt found that Gillette's views were based "on an opinion, a feeling, a belief that the Vietnam war is immoral and unjust" and that the draft board could properly conclude that "those views did not meet the standards laid down by Congress for determining a conscientious objector." He expressly refused to rule that the board had denied the request for exemption because Gillette's views were non-religious.

"The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); Lichter v. United States, 334 U.S. 742, 755-758, 68 S.Ct. 1294, 92 L. Ed. 1694 (1948); Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L. Ed. 349 (1918). The exercise of this power to conscript and train men does not depend on the contemporaneous existence of a war. It may be exercised in time of peace. United States v. Henderson, 180 F.2d 711, 713 (7th Cir. 1950). We reaffirm our holdings in United States v. Mitchell, 369 F.2d 323 (2d Cir. 1966) and United States v. Bolton, 192 F.2d 805 (2d Cir. 1951) that allegations that a particular employment of the armed services is in violation of the Constitution, international treaties or a moral code do not raise a defense to a prosecution for failure to report for induction into the armed forces. For these reasons Gillette cannot successfully challenge the legality of the war in Vietnam in these proceedings.

The contention that the conscientious objector provision of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(j), is unconstitutional as applied in this case is based on the recent decision of Judge Wyzanski in United States v. Sisson, 297 F.Supp. 902 (D.Mass.1969), prob. juris. noted, 396 U.S. 812, 90 S.Ct. 92, 24...