United States v. Kurki

• Decision Date: 29 January 1968
• Docket Number: No. 15975.,15975.
• Citation: 384 F.2d 905
• Parties: UNITED STATES of America, Appellee, v. Irving Alex KURKI, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.2d 905 (1967)

UNITED STATES of America, Appellee, v. Irving Alex KURKI, Appellant.

No. 15975.

United States Court of Appeals Seventh Circuit.

July 12, 1967.

Certiorari Denied January 29, 1968.

David Loeffler, Madison, Wis., Harold P. Southerland, Milwaukee, Wis., for appellant.

James B. Brennan, U. S. Atty., Franklyn M. Gimbel, Asst. U. S. Atty., Milwaukee, Wis., for appellee.

Before KNOCH, KILEY and CUMMINGS, Circuit Judges.

Certiorari Denied January 29, 1968. See 88 S.Ct. 861.

CUMMINGS, Circuit Judge.

Under Section 12 of the Universal Military Training and Service Act of 1948 (50 U.S.C. App. § 462), defendant was indicted for failing to report for induction to his Local Board in Racine, Wisconsin. His motion to dismiss the indictment was denied¹ and he was found guilty in the ensuing bench trial.

On July 20, 1965, defendant received an order to report for induction at his Local Board in Racine "on 10 August 1965, at 6:00 a. m., for forwarding to an Armed Forces Induction Station". He had previously been classified I-A and had passed his pre-induction physical examination. He did not challenge the I-A classification administratively.

On August 2, 1965, defendant sent a letter to the President of the United States, the Secretary of Defense, and his Local Board, complaining of United States policies in Vietnam and the Dominican Republic. This letter concluded as follows:

"I therefore refuse to serve in the Armed Forces of the United States in any way and will continue to do so until the current un-American policies are changed. I cannot support these policies and live with my conscience at the same time.

"I therefore refuse to participate in the Army as an agent of injustice."

On August 10, 1965, defendant appeared at the local draft board in Racine. He thereupon distributed to some of those reporting for induction a signed leaflet that he had authored, entitled "A Declaration of Conscience". The leaflet severely criticized United States policies as to Vietnam and then said:

"I am refusing to submit to induction."

At the local board at this time, Miss Mona Hogan and a Miss Patel were processing the hundred or so men who had reported. When defendant reached Miss Patel's desk, she asked him "Are you going for induction this morning" or "are you going to report for induction?". He answered negatively. Miss Hogan then asked him to leave the office. When the two clerks went downstairs to put the men on the buses to the induction center in Milwaukee, defendant was standing outside the building but then left.

At the trial, the District Court permitted defendant to assert as a defense that he was entitled to classification as a conscientious objector under Section 6(j) of the Universal Military Training and Service Act (50 U.S.C. App. § 456(j)). However, this defense did not prevail because defendant was not found "by reason of religious training and belief * * * conscientiously opposed to participation in war in any form" as required by Section 6(j). Defendant was sentenced to two years' imprisonment. He is at liberty on bond pending the outcome of this appeal.

For the first time, defendant asserts that his conviction was improper for want of compliance with certain portions of Army Regulation 601-270, providing for stepping forward upon induction and for felony warnings to those who refuse.² These regulations should have been cited below and under well recognized appellate principles may not be considered here. United States v. Miroff, 353 F.2d 481, 483-484 (7th Cir. 1965). Moreover, they are inapplicable on their face, for they deal with induction and its refusal, whereas the present indictment is for failure to report for induction to the local draft board. Similarly, Chernekoff v. United States, 219 F.2d 721 (9th Cir. 1955), holding that the mandatory provisions of the foregoing Army Regulation must be observed before a draft registrant can be prosecuted, is inapplicable, for it concerned the offense of refusing to submit to induction.

Defendant also relies upon certain provisions of the Selective Service System's Rules and Regulations³ referring to the instructions of a clerk of the local board as to the manner of transportation to the induction center and providing that the local board shall inform registrants to obey the instructions of the leader appointed for the group, etc. Since these regulations were not relied upon in the District Court, defendant may not now assert their violation. United States v. Tyrrell, 329 F.2d 341, 345 (7th Cir. 1964). In addition, they apply only to those who report for induction. In accordance with the tenor of his letter of August 2 to Government officials, defendant did not report for induction, as the District Court found with "no hesitancy at all". Instead defendant was there distributing his "Declaration of Conscience" urging those reporting to refuse to submit to induction (see 255 F.Supp. at p. 163, note).

Defendant next argues that the evidence was insufficient to convict him. However, defendant himself told local draft board clerk Miss Patel that he was not "going to report for induction", thus admitting the commission of the very crime for which he was indicted. Defendant was a witness in the District Court. If he had any doubts about local board procedures or the point of time at which he would be violating the statute, he should have expressed those doubts during his trial. Instead his entire testimony was concerned with his possible status as a conscientious objector. Cf. Johnson v. United States, 318 U.S. 189, 196. On this record, we conclude that defendant's refusal to report for induction to his local board was unambiguous.

Finally defendant asserts that he should have been classified as a conscientious objector pursuant to Section 6(j) of the Act. However, he did not exhaust his administrative remedies by seeking Appeals Board review of his I-A classification. Therefore, he cannot complain of the I-A classification in this criminal prosecution (United States v. Nichols, 241 F.2d 1, 3 (7th Cir. 1957); Williams v. United States, 203 F.2d 85, 87 (9th Cir. 1953), certiorari denied, 345 U.S. 1003, 73 S.Ct. 1149, 97 L.Ed. 1408), and the District Court should not have received evidence as to whether he was actually a conscientious objector within the meaning of Section 6(j). His argument that Section 6(j) may not be constitutionally applied to him is not ripe for adjudication. Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553, 74 S.Ct. 745, 98 L.Ed. 933; United States v. Garth, 239 F.Supp. 164, 165 (M.D.Ala.1964); 3 Davis, Administrative Law Treatise § 20.04.

The judgment is affirmed.

KILEY, Circuit Judge (dissenting).

I respectfully dissent. The government was required to prove beyond a reasonable doubt that Kurki "did wilfully and unlawfully fail to report for induction to his Local Board No. 60 * * * in Racine, Wisconsin" on August 10, 1965.

In my opinion the record is not sufficient to prove the essential element of knowledge or wilfulness beyond a reasonable doubt. It is admitted that Kurki appeared at the Board office at the appointed hour of 6:00 a. m. on August 10, 1965. The letters Kurki wrote before and his distribution of the literature during his appearance in themselves are of no consequence to the question of his guilt. And here they are not enough to clarify and raise to the level of criminality Kurki's responses to the ambiguous questions of the Board personnel. Cf. Chernekoff v. United States, 219 F.2d 721, 725 (9th Cir. 1955).

Miss Hogan testified that after Kurki identified himself to Miss Patel¹ the latter asked him, "Are you going today?" and that he said "no." Then Miss Hogan ordered Kurki to leave "immediately" and repeated the order to leave as he stood at the door. When the other inductees and the Board employees went outside to "put the boys on the bus" for the Milwaukee Induction Center, Kurki was still outside, but Miss...