United States v. McKart

• Decision Date: 14 June 1968
• Docket Number: No. 18194.,18194.
• Citation: 395 F.2d 906
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Frederick McKART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

395 F.2d 906 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Jack Frederick McKART, Defendant-Appellant.

No. 18194.

United States Court of Appeals Sixth Circuit.

June 14, 1968.

Arnold Morelli, Cincinnati, Ohio, Bauer, Swain & Morelli, Cincinnati, Ohio, on brief, for defendant-appellant.

Thomas R. Smith, Asst. U. S. Atty., Cincinnati, Ohio, Robert M. Draper, U. S. Atty., Cincinnati, Ohio, on brief, for plaintiff-appellee.

Before PHILLIPS, CELEBREZZE and PECK, Circuit Judges.

PHILLIPS, Circuit Judge.

This case arises out of the failure and refusal of Jack Frederick McKart to comply with an order of his local draft board to report for and submit to induction into the Armed Forces of the United States. He was indicted for willfully and knowingly failing and neglecting to perform a duty required of him under the Selective Service Act. 50 U.S.C. App. § 462. He waived a jury trial, was found guilty by the District Judge and was sentenced to a prison term of three years.

McKart's indictment and trial were preceded by a long and somewhat complicated history of dealings with his local draft board. He was born February 13, 1943. Shortly after his eighteenth birthday he completed and filed his Selective Service questionnaire. His local board classified him I-A and notified him accordingly on February 26, 1963. McKart made no attempt to appeal his classification.

On March 23, 1964, he was ordered to report for a preinduction physical examination on April 21. He failed to report. On May 1, 1964, the draft board ordered him to report for induction on May 11. Again he failed to report. Instead he wrote a letter stating his refusal to submit to induction and expressing his total antipathy for the Selective Service System. He said that he did not believe in killing; that the Selective Service System violated his beliefs; and that he therefore refused to have anything to do with it. He objected to conscription as slavery, stating: "I refuse to serve this country armed, and I refuse to serve it unarmed by doing alternative service."

The draft board replied by furnishing McKart the special form for conscientious objector and suggesting that he complete the form and return it. The board also stated in its letter that McKart's original questionnaire had indicated that he was the sole surviving son of a family of which one or more members were killed in action or died in the line of duty, and asked for further information. On May 20, 1964, McKart returned the blank form to the board making it clear that he did not wish to become classified as a conscientious objector, saying: "I simply no longer want to have anything to do with the Selective Service System." At the conclusion of this letter he stated:

"If I indicated that I was a `Sole Surviving Son\' when I filled out your forms around my eighteenth birthday, then I made a mistake. I do not even have any brothers or sisters. But my father was killed in the Second World War. I do not have the specific information you asked for."

Although McKart did nothing to claim an exemption as a sole surving son, the draft board on its own initiative cancelled his induction orders and classified him IV-A. From July 27, 1964, until February 14, 1966, McKart remained in the IV-A classification.

Early in 1966 the board learned of the death of McKart's mother. His classification was changed from IV-A to I-A. When McKart was informed of this reclassification, he made no effort to appeal. Subsequently he was ordered to report for a physical examination on March 17, 1966, and for induction on April 21, 1966. He failed to comply with either of these orders.

At the trial McKart attempted to defend his refusal to report for induction on the ground that he still is entitled to a IV-A classification as a sole surviving son under 50 U.S.C. App. § 456(o). In a well-reasoned memorandum opinion, District Judge David S. Porter held that the failure of McKart to exhaust his administrative remedies within the Selective Service System barred him from raising the validity of his classification as a defense in the criminal proceeding. Judge Porter said:

"Of course, he had not exhausted his administrative remedies. He has simply, from the outset, not had anything to do with the Selective Service System.

* * * * * *

"* * * The fact of the matter is, however, he did not claim the exemption he now seeks. The draft board gave it to him. He simply rejected the whole idea of the draft. * * *"

On appeal McKart's theory is that a Selective Service registrant is not required to exhaust his administrative remedies when the issue of classification is purely one of law and the position of the Selective Service is so well established that an appeal would be futile.

The issue before us is this: When a Selective Service registrant who has not appealed his classification through the Selective Service procedures is tried for failure to submit to induction into the Armed Forces, may the registrant raise the defense, upon wholly undisputed facts, that he was wrongfully classified in violation of statute? We answer this question in the negative and affirm the conviction.

In Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 the defendant, a conscientious objector, was tried for willful failure to report for assignment to work of national importance. Falbo defended on the ground that he was entitled to a statutory exemption from all forms of national service. The defendant Falbo challenged the order of his local board before he had exhausted his administrative remedies. The Supreme Court held that Falbo could not raise this defense. After the decision in Falbo, many courts held that, even after exhaustion of administrative remedies, a registrant could not defend a criminal prosecution on the ground that the board lacked jurisdiction to impose the classification. Indeed, most courts held that judicial review of an erroneous classification could be had only in a habeas corpus proceeding after induction.

In Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, the Supreme Court held that the defense of an invalid classification may be raised in a criminal prosecution where the registrant has exhausted all administrative remedies, reported for induction, was accepted, but refused to submit to induction. In Estep the Court emphasized that the defendant in Falbo had not exhausted his administrative remedies:

"Falbo v. United States, supra, does not preclude such a defense in the present cases. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done. Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them." 327 U.S. at 123, 66 S.Ct. at 428.

The requirement that judicial review of a registrant's classification must await both the full exhaustion of administrative remedies and acceptance for induction is founded on the policy of mobilizing national manpower in the shortest practical period. Falbo v. United States, supra, 320 U.S. 549, 554, 64 S.Ct. 346. Until the registrant reports and is accepted for induction there is always the possibility that he may be rejected because of his physical condition or perhaps an erroneous classification may be changed. In United States v. Irons, 369 F.2d 557, 558-559 (6th Cir.), Judge Mathes said:

"Not only did appellant spurn all administrative remedies available to him, including appeal cf. Maddox v. United States, 264 F.2d 243 (6th Cir. 1959); he also refused to report for, or submit to a phsyical examination. Conscientious objectors are not excused from a physical examination. Indeed, no registrant is, and for good reason. See Selective Service Regs. § 1628.11, 32 C.F.R. § 1628.11 (1965 Supp.). Even if improperly classified 1-A, there remains the possibility, unfortunately all too great in these times, that he will fail the physical examination and be

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