The opinion of the court was delivered by: DITTER
Michael Joseph Cunningham was indicted for wilfully and knowingly failing to submit to induction into the Armed Forces in violation of 50 App. U.S.C. § 462. It is unquestioned that although he reported as ordered to an induction center, he intentionally refused to step forward and answer when his name was called.
The defendant, who was born in October, 1951, filled out a Classification Questionnaire (SSS Form 100) in January, 1970, with Local Board 59, Upper Darby, Pennsylvania. His only claim for deferment was as a student. In December, 1970, having graduated from high school, he was classified 1-A, was given a physical examination, and on February 18, 1971, was mailed orders to report for induction on March 4, 1971.
Cunningham asserts two defenses to the present prosecution:
1. The order of call by the State Selective Service System was illegal and therefore his notice to report for induction was invalid; and
2. He is entitled to a deferment as a conscientious objector, his draft board having erred in refusing to grant his request for that classification even though it was not made until after he received his notice for induction.
The testimony established that for a given month Pennsylvania has to order more men for induction than are actually required of it by the National Director. Experience has shown that of the men sent for induction, a substantial percentage will be found not qualified, some will obtain postponements, others will fail to report, and a certain number will refuse induction. The State Director took these factors into consideration in making his calls on the local boards for the months of January, February, and March, 1971.
In December, 1970, the National Director ordered Pennsylvania to provide 816 men for the month of January, 1971. In January, a similar call was made for 783 men in February, with 625 being requested for March, 1971. Responding to these calls, Pennsylvania told 2689 men to report for induction in January, 2243 in February, and 1124 in March. Of these numbers, 1183 men were inducted in January, 974 in February, and 401 in March.
For March, 1971, the month Cunningham was ordered for induction, the State Director called upon Local Board No. 59 to deliver 13 men. In making this determination, he took into account the number of men previously reported as available. In addition, like all boards, Local 59 was directed to send for induction all available registrants whose random sequence, or lottery number, was below 100.
Defendant's random sequence number was 78. Local Board No. 59 listed 15 men, including Cunningham, for induction, but of this number, only two were actually inducted in March. Cunningham was postponed for further medical consideration and eventually ordered to report in May, 1971.
The defendant contends it was illegal for the State Director to call for the induction of that group of men composed of registrants designated by certain random sequence numbers as contrasted with requiring each board to deliver a fixed number of men. The same argument was raised and rejected in United States v. Thompson, 443 F.2d 341, 342 (9th Cir. 1971) and United States v. Munoz, 451 F.2d 1270 (9th Cir. 1971). I can find nothing in the regulations to suggest men could not be called by random sequence number and later this procedure was adopted nationally.
Cunningham also maintains that the calls state-wide for January, February, and March, 1971, were illegal because too many men were inducted. Cunningham does not suggest that he was called out of order, that is, someone with a higher numerical priority should have been called first. Rather, he argues that if the exact number of men needed for January and February had been summoned, more men would have been left to be called for March and he would not have been reached until April by which time he would have established that he was a conscientious objector.
In state-wide draft calls, however, mathematical precision is impossible to achieve. It is therefore obvious that a certain amount of discretion must be vested in the State Director. "The problems of the State Director must be borne in mind and the regulations read with sufficient flexibility to provide him room to meet his responsibilities. His duty to the state is to deliver a specified number of men. The question remains how many men must be ordered for induction in order to meet this quota. . . . [His] determination is based on state-wide experience as to the extent of state-wide overcall of registrants necessary to produce the state quota." United States v. Jones, 431 F.2d 619, 620 (9th Cir. 1970).
James H. Evans was subpoenaed by the defendant. In 1970 and 1971, Mr. Evans was in charge of determining for the State Director of Selective Service the number of draft registrants to be called state-wide and from each local board. He testified that an attempt was always made to summon no more then the number of men required for each month. The only exception was if there had been a deficiency from a prior month. Nevertheless, the controlling factors varied so unpredictably that the actual number of men inducted often differed from the results which had been projected. For example, in December, 1970, the rejection rate was 36%, but for January it fell to 22%. The difference, 14%, when applied to the number of men ordered to report in January, would represent a surplus of 376 men. Actually, for January 367 more men than required were inducted. Before the results for January were known, the February call was made and again too many men were inducted. In March, however, the number inducted fell below the number called for by the National Director. It was also Mr. Evans belief that Pennsylvania's March quota had been adjusted to reflect the overages delivered in January and February. The figures support his opinion. In each of these three months, January, February, and March, 1971, the National requirement was for 17,000 men. However, the quota assigned to Pennsylvania was only 625 for March as compared with 816 for January and 783 for February. As shown by the summary below, based on the number of men ordered to report for induction, there was an overage, or error, of less then six per cent for the three months. Considering the lead times required, the unpredictable nature of the factors which controlled, and the number of men involved, it is clear the State Director was operating well within the bounds of proper discretion in making his calls for these three months and Cunningham's contention to the contrary must fail.