Walter L. Smith v. United States

Appellant appeals from conviction on a one count indictment charging him with refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. We affirm.

On appeal he contends: (1) that the war in Vietnam is illegal. Inasmuch as appellant may not go to Vietnam, the issue would seem to be moot. Be that as it may, this type of an allegation is not a defense to a prosecution for failure or refusal to submit to induction. United States v. Leavy, 422 F.2d 1155 (9th Cir., 1970); Rusk v. United States, 419 F.2d 133 (9th Cir. 1969); United States v. Mitchell, 369 F.2d 323, 324 (2d Cir. 1966), cert. denied 386 U.S. 972 , 87 S.Ct. 1162 , 18 L.Ed.2d 132 ; (2) he claims a violation of the equal protection and due process clauses of the Constitution in that the Selective Service Act does not conscript men in the war industries which profit by war, and exempts men under 18% and over age 26. This issue has been answered against appellant’s contentions. Bolling v. Sharpe, 347 U.S. 497, 499 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954); Goesaert v. Cleary, 335 U.S. 464 , 69 S.Ct. 198 , 93 L.Ed. 163 (1948); Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954), cert. denied 348 U.S.…