United States v. Owens

• Decision Date: 18 September 1969
• Docket Number: No. 19293.,19293.
• Citation: 415 F.2d 1308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray OWENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

415 F.2d 1308 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray OWENS, Defendant-Appellant.

No. 19293.

United States Court of Appeals Sixth Circuit.

September 18, 1969.

Daniel T. Taylor, III, Louisville, Ky., for appellant.

M. Ronald Christopher, Asst. U. S. Atty., Louisville, Ky., for appellee, Ernest W. Rivers, U. S. Atty., Louisville, Ky., on brief.

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

PHILLIPS, Circuit Judge.

Danny Ray Owens appeals from his conviction for refusal to be inducted into the armed service in violation of 50 U.S.C. App. § 462.

On December 29, 1964, Owens registered with local Selective Service Board No. 290 in Scottsburg, Indiana. He attended the University of Indiana for two years with a 2-S classification. On March 12, 1968, he was classified 1-A. He took none of the steps provided by the Selective Service System to have his classification reviewed by any appeal board. He never claimed to be a conscientious objector. On April 3, 1968, he obeyed an order to report for a physical examination and was found acceptable.

He was ordered to report for induction on May 5, 1968. On that date he appeared at the office of the local board in Scottsburg and was sent to the induction center at Louisville, Kentucky. At the induction center he refused processing, that is, the taking of various tests and physical examinations, and declined to be inducted.

At a trial under a one count indictment, Owens was found guilty by a jury. District Judge James F. Gordon imposed the maximum sentence.

Three questions are raised on appeal:

(1) Was Owens deprived of due process of law by the action of the District Court which allegedly limited the defenses which Owens could raise before the jury?

(2) Did the District Court err, to the detriment of Owens' right under the Sixth Amendment, in refusing to permit defense counsel to make certain inquiries of the prospective jurors on the voir dire?

(3) Did the District Judge commit reversible error in remarking to the jury that "no man has the constitutional right to disobey the Selective Service laws of the nation and purity of motive is not a legal defense to a violation of the existing law?"

I.

The defense which Owens undertook to assert at the trial was summarized in a statement which he gave to induction officials in response to their request that he set forth in writing his reasons for his conduct at the induction center. The District Court, over Government objection, permitted this statement to be read to the jury during cross-examination of one of the Government's witnesses. Owens wrote as follows:

"I find it difficult to refuse induction as I am sure any one would. I will face harsh consequences for my refusal. I will face the scorn of many Americans who will not understand or even try to understand the reasons for my act. These Americans will invent other reasons for my refusal. A few will call it treason. Some will say that I am trying to destroy the `American way of life.' Others will say that I am a coward. Almost all of them will conclude that I am a misfit. In due time, I will have to serve a sentence in a penitentiary. Since most of them will not understand my motives, the other inmates may give me a rough time. Finally, after I serve my sentence, I will probably face some problems finding suitable employment.

"I realize, by illegal means, I could have avoided military service, but I want to do more than merely avoid military service. I want to focus attention on the immorality and the insanity of the Vietnam War. I also hope to encourage other men to avoid military service either by refusing induction or other means.

"If enough men refuse induction, Americans will have to take a look at the ugly aspects of the war. The four most recent Presidents of the United States have each tried to force the Vietnamese to submit to American domination. The United States supported the French colonials, and when the Viet Minh drove the French out of Indo-China, began supporting reactionary elements in South Vietnam. As American aid to the South Vietnamese dictatorship increased, oppression by the Diem government also increased. A series of military dictatorships have not proved successful in gaining the support of the South Vietnamese. The Viet Cong increased their base of support while the South Vietnam government lost what little support they had. Therefore, the United States took over most of the fighting.

"While fighting in Vietnam, the United States has broken too many international laws to mention. Exservicemen have testified that the killing and the torturing of prisoners is part of our everyday military operations. Illegal weapons, including deadly gases, `fragmentation' bombs, and `defoliation' chemicals, are used consistently against the Vietnamese.

"Now I face severe penalties for refusing to take part in this massacre of innocent Vietnamese. I will take whatever punishment our legal system decides to give me. No threat of punishment, however, will make me partake in genocide.

"I refuse to continue with induction proceeding because I consider the military operations in Vietnam to be immoral and illegal."

Owens testified as a witness on his own behalf, explaining to the court and the jury his reason for refusing induction and for not making an attempt to obtain a classification as a conscientious objector:

"Q. Would you explain to me what your purpose was in that connection?

"A. To be a conscientious objector you have to be a pacifist.

"Q. You have to be what, sir?

"A. A pacifist.

"Q. All right.

"A. And I do not object to all wars.

"Q. I take it then from your remark, Mr. Owens, that you do object to some wars; is that right?

"A. Yes.

"Q. Specifically, does your objection include the Vietnamese War?

"A. Yes.

"Q. What are your reasons for that, sir?

"A. I consider it to be illegal because the United States has been breaking international agreements, and I believe —

* * * * * *

"Q. Danny —

"A. (Interrupting) I — I feel that I would be a war criminal if I served in the Armed Forces of the United States.

"Q. What is a war criminal, as you understand it, sir?

"A. Someone who commits crimes against peace or humanity for war crimes.

"Q. How would you — do you feel then do you have an objection to following the induction procedures; is that the idea?

"A. Yes.

"Q. All right. Do you — do you feel that your drafting would have a connection with the Vietnamese War?

"A. Yes. I feel I would be an accomplice.

"Q. You feel that you would be a what?

"A. An accomplice to the war crimes being committed.

"Q. What war crimes do you refer to specifically?

"A. The use of lethal gases.

"Q. What, sir?

"A. The use of deadly gases.

"Q. All right; additionally, what?

"A. Chemical warfare.

"Q. In what connection, Mr. Owens?

"A. Destroying crops.

"Q. Is that what they call defoliation?

"A. Yes.

"Q. All right; anything else, sir?

"A. Uh, concentration camps.

"Q. Is it your belief that these measures are presently being employed by the United States of America in Vietnam at the present time?

"A. Yes.

"Q. Is it your further belief that the action of the United States in so doing is in violation both of the laws of humanity and the actual treaties and laws of our Nation?

"A. Yes.

"Q. Is it your view that, as a citizen of the United States of America, you are bound by the treaties that the United States has executed?

"A. Yes.

"Q. Do you have any notes in regard to the use of chemical substances, such as napalm?

"A. Yes, I do; this is illegal, too, by the Geneva Convention, I believe.

"Q. You mention a Geneva Convention. What is your understanding of what was provided by the Geneva Convention?

"A. This concerned P.O.W.\'s.

"Q. What is a P.O.W.?

"A. Prisoner of War.

"Q. Yes, sir.

"A. And also actions concerning the warfare, I believe, and the use of napalm is an illegal weapon, like chemical warfare.

"Q. What is this napalm, if you know, sir?

"A. Basically I think it is, uh, what they call a jellied gasoline.

"Q. What is your understanding as to the use that it has been put to in Vietnam?

"A. They have used it to bomb villages which contain civilians.

"Q. This included unarmed women and children?

"A. Yes.

"Q. And other noncombatants?

"A. Yes.

"Q. All right, sir. Mr. Owens, what was your belief that if drafted — did you believe you would go to Vietnam?

"A. Yes.

"Q. Are you afraid for your personal safety to go to Vietnam?

"A. No.

"Q. As you have already told us, you are not a pacifist within the classification — the classic definition of that term; is that right, sir?

"A. Yes; yes, sir.

"Q. Therefore, your refusal to go to Vietnam, as you thought, would be the option based on your belief that to do so you would be ordered to do certain inhuman criminal activities or acts; is that right, sir?

"A. Yes, sir.

"Q. And this would be along the lines that you have discussed, for instance, could you obey an order to execute wounded prisoners?

"A. No.

At the beginning of the trial the District Judge stated at a hearing in chambers outside the presence of the jury that Owens would be limited in the defenses that could be offered during the trial. During the course of the trial, however, Owens was permitted to explain to the jury in detail his reasons for refusing to be inducted and the above-quoted statement was read to the jury. We find no merit in the contention that Owens was deprived of the right to present his theory of defense to the jury. In his effort to give Owens the benefit of all doubts on this point, the District Judge appears to have allowed an even wider latitude than is required under the decisions. See United States v. Butler, 389 F.2d 172 (6th Cir.), cert. denied, 390 U.S. 1039, 88 S.Ct. 1636, 20 L.Ed.2d 300.

In United States v. Mitchell, 369 F.2d 323 (2d Cir.), cert. denied, 386 U.S. 972, 87 S.Ct. 1162, 18 L.Ed.2d 132, a draft registrant, who had been classified as 1-A and had not exhausted his administrative remedies, sought to...