412 F2d 426 United States v. Pratt

412 F.2d 426

UNITED STATES of America, Plaintiff-Appellee,
v.
Don Bertram PRATT, Defendant-Appellant.

No. 18710.

United States Court of Appeals Sixth Circuit.

June 10, 1969.

Robert Allen Sedler, Lexington, Ky., for appellant.

Philip Huddleston, Louisville, Ky. (Ernest W. Rivers, U.S. Atty., John L. Smith Asst. U.S. Atty., Louisville, Ky., on the brief), for appellee.

Before WEICK, Chief Judge, CELEBREZZE and McCREE, Circuit Judges.

WEICK, Chief Judge.

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1

This is an appeal from the District Court's judgment of conviction for wilfully refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. 462(a). Appellant was sentenced to five years' imprisonment and fined $10,000.

2

We find no merit in appellant's contention that the grand jury and the petit jury were improperly constituted, in violation of the Due Process Clause of the Fifth Amendment of the Constitution of the United States or of 28 U.S.C. App. 1861 et seq. Williams v. Baker, 399 F.2d 681 (10th Cir. 1968); United States v. Hoffa, 349 F.2d 20 (6th Cor. 1965), aff'd, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied, 386 U.S. 940, 951,87 S.Ct. 970, 17 L.Ed.2d 880 (1967); Rice v. Louisville & Nashville R.R. Co., 344 F.2d 776 (6th Cir. 1965).

3

Nor do we agree with appellant that the present Universal Military Training and Service Act as amended by the Military Selective Service Act of 1967, 50 U.S.C. App. 451 et seq., is unconstitutional. Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918); United States v. Butler, 389 F.2d 172 (6th Cir. 1968), cert. denied, 390 U.S. 1039, 88 S.Ct. 1636, 20 L.Ed.2d 300 (1968); Talmanson v. United States, 386 F.2d 811 (1st Cir. 1967), cert. denied, 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421 (1968); United States v. Richmond, 274 F.Supp. 43 (C.D.Cal.1967).

4

Finally, appellant urges us to declare the Vietnam war illegal and in violation of international law. We are of the opinion that this claim is no defense to a prosecution for failure to submit to induction into the Armed Services. United States v. Prince, 398 F.2d 686, 688 (2d Cir. 1968); United States v. Mitchell, 369 F.2d 323 (2d Cir. 1966), cert. denied, 386 U.S. 1042, 87 S.Ct. 1477, 18 L.Ed.2d 616 (1967).

5

The observation which we made with respect to the severity of the sentence in United States v. Mulloy, 412 F.2d 421 (6th Cir. 1969) applies with equal force in this case.

6

Affirmed.