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March 13, 1969

Peter Niven KIGER

The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

 Defendant Peter Niven Kiger was tried before me without a jury on an indictment charging him with knowingly destroying and multilating his Selective Service Notice of Classification certificate in violation of § 462(b)(3) of the Universal Military Training and Service Act of 1948, as amended, 50 App.U.S.C. § 462(b)(3). At the conclusion of the trial, decision was reserved. This section of the Universal Military Training and Service Act of 1948, as amended in 1965, provides that a crime is committed by "any person * * * who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes" any certificate issued pursuant to the provisions of the Universal Military Training and Service Act and the rules and regulations and directions made pursuant thereto. A Notice of Classification (SS Form 110) is such a certificate. 32 C.F.R. § 1623.4.

 The evidence adduced at trial is for all practical purposes undisputed. It establishes beyond a reasonable doubt that on March 24, 1966, at the office of the Committee for Non-violent Action, 5 Beekman Place, New York City, Kiger burned his Notice of Classification *fn1" and that he did so knowingly and wilfully. The only questions in the case relate to the defenses raised by Kiger.

 Kiger urges that he cannot be found guilty of a violation of § 462(b), as charged, for three reasons. He contends first, that there was "implied condonation" by his Local Board of his conduct in thus burning his draft card which would render a conviction for such conduct a denial of due process; second, that he was ineligible for the draft when he burned his card and therefore under the balancing test of United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), interference with his First Amendment rights of symbolic free speech is no longer justified; and third, that the act of burning his draft card was a necessary means of obtaining access to the mass media for the expression of his views and was thus constitutionally protected by the First Amendment.


 In January, 1966, while Kiger was classified I-O (Conscientious Objector), he wrote a letter to his Local Board in Indiana, reading in pertinent part as follows:

"Please send me a new classification card (I-Y I believe). I do not know the whereabouts of the one which you sent to my home in Dunreith, Ind. in 1963; and I wish to burn one in sympathy with other people who have done so."

 The Local Board then prepared a Notice of Classification card labeled "Duplicate", dated January 13, 1966, reflecting Kiger's current I-O classification rather than the I-Y classification in which he apparently thought himself placed. The duplicate card was mailed to Kiger on the same day without any accompanying letter or other communication. There was no further communication of any kind from the Selective Service or any of its representatives with reference to Kiger's letter or his statement that he intended to burn his card up to March 24, 1966, when the burning of the duplicate card took place.

 Kiger contends that the action of the Local Board in sending him the duplicate card without any comment on his statement that he wished to burn it constituted "implied condonation" of his conduct in burning the card, which is tantamount to entrapment. He emphasizes the contrast between this procedure and the action taken by the Local Board in 1961, when he attempted to return his draft card as "part of a protest against preparations for war by the United States Government and other governments and countries", and stated he was willing to face up to the penalties for such illegal acts. At that time the Board advised him that he must carry his registration and classification certificates so as not to be in violation of law.

 He also argues that, since the constitutionality of the 1965 amendment to the Universal Military Training and Service Act, which made knowing destruction or mutilation of a draft card a crime, had not yet been passed on by any appellate court, the validity of the statute was then "uncertain". He urges that it follows from this that the Local Board's act of providing the duplicate card without comment, knowing he wished to burn it, implied that it thought his contemplated conduct was constitutionally protected.

 Kiger relies principally on Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959), and Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965), to support this defense. These cases are clearly distinguishable and defendant's reliance on them is misplaced.

 In Raley, the defendants-appellants, claiming the privilege against self-incrimination granted by the Ohio Constitution, had refused to answer questions propounded by the Ohio Un-American Activities Commission. They were informed by the Commission that they had a right to rely on the privilege. Nevertheless, they were convicted by the state courts for contempt for refusing to answer the questions.

 The Ohio Supreme Court affirmed the convictions. It held that defendants were presumed to know the Ohio law to the effect that the Ohio immunity statute deprived them of the protection of the privilege against self-incrimination and they therefore had committed an offense in refusing to answer the questions as to which they had asserted the privilege.

 The United States Supreme Court reversed, holding that the convictions violated the due process clause of the Fourteenth Amendment. The Court stated, "After the Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court's judgment would be to sanction an indefensible sort of entrapment by the State -- convicting a citizen for exercising a privilege ...

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