The opinion of the court was delivered by: MASTERSON
The defendant in this criminal prosecution has been indicted for failure to perform a duty imposed by the Selective Service Act, to wit, failure to report for and submit to induction into the Armed Forces in violation of 50 U.S.C. App. §§ 454, 462. Defendant waived a jury trial and moved for a judgment of acquittal at the close of all the evidence pursuant to Rule 29(b) of the Federal Rules of Criminal Procedure. After reviewing the whole record, we have decided to grant the motion for judgment of acquittal and make the following
(1) The defendant, Dennis Jerome Williams, was born on July 21, 1949, in Philadelphia, Pennsylvania, in which city he resided at all times material to this action.
(2) On June 8, 1967, the defendant registered with Local Board No. 133 (hereinafter "Local Board" or "Board") in Philadelphia, Pennsylvania, in accordance with the Selective Service Act of 1948, as amended.
(3) On June 30, 1967, the Local Board mailed to the defendant Selective Service System (hereinafter "SSS") Form 100, "Classification Questionnaire".
(4) On July 24, 1967, the defendant returned said "Classification Questionnaire" to the Local Board. In executing this Form, the defendant claimed to be a Conscientious Objector by reason of religious training and belief and requested the Local Board to furnish him with a special form for Conscientious Objectors (SSS Form 150). The SSS Form 150 is designed to furnish the Local Board with information necessary to evaluate a conscientious objector claim.
(6) The SSS Form 150, sent by the Local Board, was never received by the defendant. An entry in the Local Board minutes, dated August 4, 1967, noted: "SSS Form 150 not returned by the registrant." However, the Local Board never made inquiry as to why the Form had not been returned or as to whether the defendant desired to pursue his claim.
(7) On October 12, 1967, the defendant was classified I-A by a 4-0 vote of the Local Board. The Local Board did not consider the conscientious objector claim since a Form 150 had not been submitted. As of the date of this classification and at all times material to this action, all five members of Local Board No. 133 were citizens of the United States and residents of Philadelphia County but none of the five members resided within the geographical boundaries of Local Board No. 133.
(8) On October 12, 1967, the Executive Secretary of the Local Board mailed SSS Form 110, "Notice of Classification", to the defendant, together with SSS Form 217, "Notice of Right to Personal Appearance and Appeal." The SSS Form 217 had the following language crossed out:
"The Government Appeal Agent for this local board is:
(Plaintiff's Exhibit G-1).
(9) The defendant, who received his Notice of Classification, did not request a personal appearance or file an appeal within the proscribed thirty (30) day period. (Notes of Testimony, hereinafter designated as "N.T.", p. 68).
(10) On April 26, 1968, the Local Board mailed to the defendant an "Order to Report for Armed Forces Physical Examination" (SSS Form 223). This examination was held on May 15, 1968, and the defendant was found acceptable for induction.
(11) On May 27, 1968, the defendant received an "Order to Report for Induction" (SSS Form 252) on June 18, 1968 at 7:30 A.M.
(12) On June 13, 1968, the defendant submitted to the Local Board a properly executed "Special Form for Conscientious Objector" (SSS Form 150), which furnished the information necessary for the Local Board to evaluate his claim. The submitted Form 150 was obtained by the defendant from a draft counseling service and bore no date in the legend. The defendant also requested, in writing, a personal appearance with respect thereto and a postponement of induction.
(13) On June 13, 1968, the Local Board requested State Headquarters of the Selective Service System for permission to postpone the induction until the July call in order to give the Local Board an opportunity to review the SSS Form 150.
(14) On June 17, 1968, State Headquarters gave the following instructions to the Local Board:
"If the Board first determines according to section 1625.2 of the regulations that there has been a change in the registrant's status resulting from circumstances over which he had no control then it may reopen and consider anew the classification of the registrant. However, if the board finds there has been no change in the registrant's status resulting from circumstances over which he had no control but believes that the registrant's claim of conscientious objection has merit, ...