Gibbons, James Rosen, and Hunter, Circuit Judges. Gibbons, Circuit Judge (dissenting).
JAMES HUNTER, III, Circuit Judge.
Appellant Ronald James Clark was convicted for failing to report for induction into the armed forces, in violation of 50 U.S.C. App. § 462(a). On appeal from that conviction, he alleges several grounds for reversal.
Although appellant has had many dealings with his draft board since he first registered at age eighteen, our chronology may begin in the summer of 1970. On July 17, the Local Board mailed appellant an order to report for induction on August 4. The order was mailed to appellant at the current mailing address listed in his Selective Service file, which was the address of his mother's home in Erie, Pennsylvania. Appellant failed to report on August 4. On August 10, however, the Local Board received a letter from appellant, stating in essence that he had been away from Erie since July 1970, that he had called home and had been informed of the induction order and that he would not return to Erie until September 1970, at which time he would "give you a call or come down and see you." A postscript was added: "I do not have any address for you to get in contact with me."
On August 13, 1970, despite the letter received from appellant, the Local Board mailed appellant another order to report for induction, this time on September 1. This second order, which was a Selective Service Form 252, was also mailed to appellant at his mother's home in Erie. Appellant again failed to report.
After the second failure to report, appellant's selective service file was forwarded by the Local Board to Selective Service Headquarters and subsequently was forwarded to the U.S. Attorney, who requested an F.B.I. investigation.
In the meantime, the Local Board received from appellant another letter, this one containing a California address. Appellant also contacted a California draft board and, using a California form given to him, filed a formal change of address with the Pennsylvania Local Board.
On November 20 the Local Board was instructed by Selective Service Headquarters to "reorder" appellant for induction. By "letter order" of that same date, mailed to appellant at his California address, the Local Board ordered appellant to report for induction in Erie on December 1. In the same letter appellant was given specific instructions to follow if he wished to transfer his induction to California. Appellant failed to report on December 1.
On December 14 the Local Board received a letter from appellant, acknowledging receipt of the "letter order" and enclosing another change-of-address form.
Subsequently appellant was indicted for failing to report for induction on December 1, 1970, at Erie.
Other facts will be recounted in connection with specific arguments below.
II. VALIDITY OF THE "LETTER ORDER"
Appellant argues that the "letter order" was invalid since it was not a Selective Service Form 252, which contains important notices to inform the registrant of his rights, responsibilities, and potential liabilities in connection with the induction order.
Although the "letter order" alone would not have met the requirements for a valid induction order. 32 C.F.R. § 1632.1, the "letter order" did not stand alone. The Local Board's order to report on September 1 was a proper Form 252, and appellant does not challenge the validity of that order. The "letter order" was simply a means of setting a new date to report in accordance with the existing induction order.
The dissenting opinion argues that appellant may have been convicted for a crime not charged by the grand jury. The indictment shows, however, that the grand jury charged appellant with committing a crime on December 1, 1971, specifically, with failing to obey an order of his Local Board to report for induction on that date. The fact that appellant did fail to report for induction on that date is conceded on this appeal. The only real question, then, is whether he was under a duty to report on December 1, which in turn depends upon whether the Local Board properly ordered him to report then. The majority holds that appellant was properly ordered to report on December 1, not because the "letter order" alone was a sufficient induction order, but because the "letter order" was a proper means to change the date set for compliance with the existing, admittedly valid, induction order of August 13.*fn1
That a draft board can fix a new date for induction without sending a new Form 252 induction order has been recognized in several cases. In United States v. Ritchey, 423 F.2d 685 (9th Cir. 1970), the registrant reported for induction on the set date, but the induction process was not completed on that date, and a new date was set. On the new date the registrant failed to report. Subsequently a third date was set, at which time the registrant did report, but the induction process was again not completed and by "final letter" a fourth date was set for induction. When the registrant failed to report on that date, the failure to report was the basis of his indictment. The Court upheld the validity of the "final letter" fixing a new date for induction.
In United States ex rel. Luster v. McBee, 422 F.2d 562 (7th Cir.), cert. denied, Luster v. Cooksey, 400 U.S. 854, 91 S. Ct. 74, 27 L. Ed. 2d 92 (1970), a valid Form 252 induction order was mailed to the registrant. On the induction date, however, questions arose about the medical acceptability of the registrant, which were settled only after the registrant's doctor had submitted statements. At that time a letter, not a Form 252, was sent to the registrant, the letter setting a new induction date. The Court upheld the registrant's duty to report in accordance with the letter.
In Swift v. Director of Selective Service, 145 U.S.App.D.C. 224, 448 F.2d 1147 (1971), the registrant, after several postponements, reported for induction on the date specified, but because the examining center was not capable of performing certain medical tests he was not inducted on that date. After a hospital examination the registrant was found to be acceptable, and he was thereupon mailed a letter setting a new date for his induction under the original Form 252 order. The court held that the original induction order was not cancelled, in effect upholding the registrant's duty to report on the new date set for his induction.
In the three cases mentioned, the registrant had reported for induction on the date set by the induction order, but in each case induction did not take place on that date. In United States v. Brunner, 457 F.2d 1301 (9th Cir. 1972), the registrant, like appellant here, failed to report on the date set by his induction order. Subsequently his local board scheduled five more induction dates, on all of which the registrant failed ...