Hastie, Chief Judge, and McLaughlin and Stahl, Circuit Judges. McLaughlin, Circuit Judge (dissenting).
George Anderson Bowen, Jr., claiming to be a conscientious objector, was sentenced to five years imprisonment, the maximum term,*fn1 for failing to report for induction scheduled for December 29, 1965, in violation of 50 U.S.C. App. § 462.*fn2 A motion for a new trial or for a judgment of acquittal was denied. The following is a summary of the facts of this case:
April 27, 1962 : Bowen registered with his local Selective Service Board. (Trial Transcript (TT) p. 5.)*fn3
July 13, 1964 : He was classified 1-A. (Minutes of Action (MA) contained in Appellant's Appendix; TT. pp. 6-7.)
June 18, 1965 : After notice, Bowen appeared for and was given a preinduction physical. On the same date he was issued SSS Form 100, Classification Questionnaire, TT. p. 23, which he subsequently completed and returned. In that form Bowen signed his name after the following printed statement:
I claim to be a conscientious objector by reason of my religious training and belief and therefore request the local board to furnish me a Special Form for Conscientious Objector (SSS Form No. 150). (Appellant's Appendix.)
July 12, 1965 : Bowen was mailed the first of two SSS Forms 150, necessary for the local board to consider his claim for conscientious objector status. (TT. pp. 12-13.)
November 22, 1965 : Because the board believed that Bowen may not have received or overlooked the SSS Form 150 sent on July 12, it sent another one. (TT. p. 13.) Bowen testified that he did not receive either of the forms.*fn4 (TT. p. 83.)
December 14, 1965 : The board mailed Bowen an order to report for induction scheduled on December 29, 1965 (MA).
December 15, 1965 : The board sent Bowen a notice informing him that he could attend a meeting of the board to be held on December 20, 1965 (TT. p. 37). No copy of this letter was adduced at trial. Bowen did not deny receipt of it. The Government's witness testified that the letter contained no specific reference to what the board might consider (i.e., Bowen's pending dependency claim or his claim for conscientious objector status), except to indicate that the board would meet "to discuss your case." (TT. p. 38.) Bowen did not appear at the December 20 meeting (TT. p. 38). Bowen testified that he felt all his papers were in order and therefore he need not attend. (TT. p. 84.)
December 22 1965 : The board sent Bowen the following (form) letter:
This will advise you the recent evidence submitted concerning your case has been reviewed by this local board but it does not justify the re-opening of your case and reconsideration of your present classification.
You will, therefore, be subject to further processing for induction. Notices will be mailed to you in due course.
(Emphasis added; see Appellant's Appendix and TT. p. 40.)
We pause at this point in the recitation of the facts to comment on this letter. It stated that the board considered "recent evidence submitted concerning your case." We have reviewed the entire record, including the Selective Service file of the appellant, and as the testimony of the Government's witness indicated, no new evidence was submitted to the board for its consideration. Moreover, the last paragraph of the letter is especially troublesome. It intimates that there will be "further processing for induction" and that further notices will be sent. No further processing appears to have been required and nothing else was in fact mailed to appellant.
Although not raised by counsel, we cannot help but note the confusing nature of this letter. Had Bowen claimed that as a result of the letter he was uncertain about the continuing validity of the notice of induction, it may have been a sufficient defense going to the willfulness of his conduct. Cf. United States v. Rabb, 394 F.2d 230 (3d Cir. 1968). Although this issue is not dispositive of the appeal, we mention it because it raises the disturbing question as to whether it would comport with due process of law to ...