United States v. Kroncke

• Decision Date: 03 May 1972
• Docket Number: 71-1177.,No. 71-1176,71-1176
• Citation: 459 F.2d 697
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis X. KRONCKE and Michael D. Therriault, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

459 F.2d 697 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Francis X. KRONCKE and Michael D. Therriault, Defendants-Appellants.

Nos. 71-1176, 71-1177.

United States Court of Appeals, Eighth Circuit.

Submitted October 19, 1971.

Decided May 3, 1972.

Kenneth E. Tilsen, St. Paul, Minn., for defendant-appellant Therriault.

Francis X. Kroncke, pro se.

Thorwald H. Anderson, Jr., Asst. U. S. Atty., Minneapolis, Minn., for plaintiff-appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

The defendants, Francis X. Kroncke and Michael D. Therriault, were convicted by a jury of wilfully and knowingly attempting to hinder and interfere with the administration of the Military Selective Service Act of 1967 by force, violence, and otherwise.

The evidence showed that the defendants forcibly entered the Selective Service office in Little Falls, Minnesota, at about 11:30 on the night of July 10, 1970. They had with them various tools, including a screw driver, hammer, pry bar, flashlights, a glass cutter, charcoal lighter fluid and other equipment. The defendants were wearing gloves. Once inside, they forced open file drawers and removed some Selective Service draftee registration cards which they placed in a plastic garbage bag. Therriault testified that he and Kroncke intended to either burn the cards or sink them in the Mississippi River.

FBI agents, who had been informed in advance that an entry would be made,¹ observed the defendants enter the building. After waiting approximately fifteen minutes, the agents converged on the draft board office where they found the defendants and observed the opened file drawers, the registration cards in the plastic bag, and the tools. Letters addressed to the news media were found in the car used by the defendants. The letters stated in essence that the Minnesota Conspiracy to Save Lives had destroyed all the I-A draft files for that county.²

The defendants admit that they entered the Little Falls draft board office with the express intent to hinder and interfere with the administration of the Selective Service Act. By way of defense, they claim that their actions were justified.

Kroncke asserted at trial that he was compelled by his religious convictions to perform the act in order to bring the evils of the Vietnam War to the attention of the public and Congress. He stated that this act was necessary because the Vietnamese War is immoral and illegal, and because the political leadership in the United States lacks the moral sensitivity and courage to bring an end to the war. On these bases, and also on the basis that the governmental institutions and political leadership are not responsive to the will of the majority of the people, Kroncke argued that his belief in the necessity of acting as he did was reasonable. He described his act as measured, dramatic, symbolic and religious.

Therriault asserted that he embraced the principles of pacifism and nonviolence, and that, because of this, it was necessary for him to cease cooperating with the Selective Service System and to violate its laws. He stated his belief that the United States' participation in the war in Vietnam is illegal and that, by its participation, the United States is breaking international laws, particularly the 1954 Geneva accords. He testified that he believes that if there is not a legal recourse which can bring the war to an end, then people have to resort to nonviolent extra legal efforts based on morality and reason. He stated that his actions were intended to raise a moral challenge which alone possessed the possibility and potentiality of ending the war.

The trial court permitted the defendants to call many witnesses³ who testified, over the government's objection, on these issues: the damage to Vietnamese society caused by the war; the impact of the war on Cambodia; the extent of civilian casualties in Vietnam and Cambodia; the impact of an act of civil disobedience on bringing the war to an end; the ecological damage to Vietnam; the extent to which draftees carry the burden of the war; the effect of domestic protests and acts of civil disobedience on the decision-making of high government officials; and the probability that the war will continue unless there is domestic opposition to it. The defendants testified to their moral and religious reasons for committing the acts with which they were charged.

The government made a standing objection to evidence of this nature. The court reserved ruling on the government's motion to strike the testimony at the time it was first made and each time it was made thereafter during the taking of evidence. At the close of the evidence, the government renewed its motion to strike this testimony and to instruct the jury to disregard it. The motion was taken under advisement.

The defendants requested the court to instruct the jury as follows: (1) that if the jury found that the evils sought to be avoided by the defendants were far greater than those sought to be prevented by the law defining the offense and that the defendants acted to avoid those evils upon the belief that their acts were necessary and such belief in the necessity of their acts was reasonable, then the defendants' acts were justified and a verdict of not guilty should be entered; and (2) if the jury found that the evils sought to be avoided and exorcised by the defendants were far greater than those sought to be prevented by the law defining the offense and that the defendants acted to avoid those evils upon the belief that their acts were necessary religious acts, and that such belief in the necessity of their acts was reasonable, then the defendants' acts were justified and protected by the First Amendment of the United States Constitution. The court also took these requests under advisement. It did not rule on the request to strike or, the defendants allege, on the requested instructions prior to oral argument. Neither defendant objected to this failure either before or after closing argument.

Kroncke, acting as his own attorney, joined Therriault's counsel in arguing to the jury the defenses embodied in their instructions. Counsel for the government argued that these acts were not justified.

The court, without further consultation with counsel, instructed the jury as follows:

"* * * The attempted justification is based on the theory as to both defendants that the Vietnam war is an evil and the evil sought to be avoided by defendants is greater than the evil sought to be prevented by the law defining the offense; that they believed their acts to be necessary, that their belief was reasonable and therefore they were justified in their actions. * * * In addition, both defendants * * * claim that they were compelled or moved by religious and theological motives and that what they did is characterized in some way as a religious act. * * * All of what has been received along this line is immaterial. * * *

"* * * I now * * * strike all of the testimony offered by both defendants except for their own personal testimony, and I strike that part which attempts to rely on a justification on account of the Vietnam war or religious oriented reasons. Consequently, all that you have before you for consideration are the facts concerning what occurred at Little Falls, Minnesota on the late evening of July 10, 1970. * * *"

The defendants contend on appeal that the trial court erred in refusing to submit the defense of justification to the jury and in failing to advise counsel that he would do so before closing arguments. We reject both contentions.

The defendants cite a number of cases and a tentative draft of Section 3.02 of the Model Penal Code to support their view that the jury should have been permitted to determine whether their acts were justified.⁴ We do not believe that the code or the cases support the defendants' view that the requested instructions should have been given. Two of the cases, United States v. Nye and United States v. Ashton, involved revolts by seamen because they believed that their ships were unseaworthy and their lives endangered. United States v. Holmes involved a case in which a sailor threw passengers out a lifeboat and sought to justify his action on the grounds that it was necessary to save other lives. Commonwealth v. Wheeler and Rex v. Borne involved abortions by doctors who sought to justify their acts on the grounds that the abortions were necessary to protect the health or life of the mother. State v. Jackson involved a case in which a father kept his child out of school to protect her health. In Chesapeake & O. R. Co. v. Commonwealth, a railway company, charged with violating a criminal statute requiring it to maintain separate railway cars for blacks and whites, defended against the charge on the grounds that an unavoidable accident had prevented it from complying on this one occasion. And in State v. Johnson, the court denied the defendant the right to assert the defense of justification to a charge of operating a snowmobile on a trunk highway, on the grounds that the defense of necessity applied only in emergency situations where the peril is instant and overwhelming, and leaves no alternative but the conduct in question.

The common thread running through most of these cases in which the defense of necessity was asserted is that there was a reasonable belief on the part of the defendant that it was necessary for him to act to protect his life or health, or the life or health of others, from a direct and immediate peril. None of the cases even suggests that the defense of necessity would be permitted where the actor's purpose is to effect a change in governmental policies which, according to the actor, may in turn result in a future saving of lives.

The Model Penal Code is broader than the cited cases in that it extends the defense beyond those cases in which the evil to be avoided is death or bodily harm. Nevertheless, the...