Opinion
No. 71-1179.
September 30, 1971. Certiorari Denied February 22, 1972.
John Remington Graham, Minneapolis, Minn., on brief for appellant.
Robert G. Renner, U.S. Atty., and Thorwald H. Anderson, Jr., Asst. U.S. Atty., Minneapolis, Minn., on brief for appellee.
Appeal from the United States District Court for the District of Minnesota.
Before MATTHES, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.
Appellant was indicted for knowingly and willfully neglecting to comply with an order of his local Selective Service Board to report for and submit to induction into the Armed Forces of the United States, in violation of Title 50 App. U.S.C. § 462. He waived trial by a jury and, upon a plenary hearing before the district court, was found guilty as charged. This appeal is from the judgment of conviction.
Three points of error are presented for review.
1. The indictment upon which he was tried was duplicitous and non-specific, and the trial court erred in failing to grant his motion to quash the indictment.
2. Appellant is exempt from military service because of his religious scruples under the First and Ninth Amendments to the Constitution of the United States.
3. The Military Selective Service Act of 1967 is unconstitutional.
We reject appellant's first contention on the basis of Judge Neville's soundly reasoned opinion. United States v. Murray, No. 4-70 CR 83, 335 F. Supp. 792 (D.Minn. Oct. 7, 1970), reported in 3 Selective Service L.Rptr. 3576.
The district court's opinion on the merits is reported at 321 F. Supp. 1012 (D.Minn. 1971). We agree with Judge Neville that appellant does not have a constitutional right to be exempt from military service because he is a conscientious objector. In rejecting this claim, Judge Neville relied upon United States v. Seeverts, 428 F.2d 467 (8th Cir. 1970). See also Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), which implicitly rejects appellant's contention. Compare also Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 49 L.Ed. 643 (1905).
We are also in agreement with Judge Neville's holding that the Military Selective Service Act of 1967 is constitutional.
The judgment of conviction is affirmed.