Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 72-28).
Seitz, Chief Judge and Aldisert and Rosenn, Circuit Judges.
Wilbert Will Smith was tried and convicted without a jury in the United States District Court for the Western District of Pennsylvania on a two count indictment for violation of the Selective Service Act. Smith was found to have violated 50 App. U.S.C. § 462 by (1) failing to report for an armed forces neuro-psychiatric examination and (2) failing subsequently to report for induction. He was given a 30 day sentence on count one, and sentence was suspended on count two.
On appeal Smith challenges the sufficiency of the indictment, the propriety of various Selective Service local board procedures and the determination by the armed forces that Smith was fit for service.
Appellant claims that he was convicted on the first count for a different crime than that for which he was indicted, and that this discrepancy between indictment and proof was an amendment, fatal per se. Gaither v. United States, 134 U.S. App. D.C. 154, 413 F.2d 1061, 1071-72 (1969); United States v. De Cavalcante, 440 F.2d 1264, 1270-71 (3d Cir. 1971).
The first count of the indictment concerned Smith's failure to appear for a neuro-psychiatric examination on March 16, 1971. Smith had been classified 1Y for psychiatric reasons until December 23, 1970, when his local board reclassified him on the basis of a December 8, 1970, armed services physical which found him fit. On February 1, 1971, Smith was ordered by his local board to report for an induction physical on February 18, 1971. Smith did report, but the examining physicians felt there was a need for another neuro-psychiatric examination. The armed services personnel set March 16, 1971, for the examination. They notified the local board of the date, and the local board executive secretary in turn notified Smith. Smith did not attend that examination.
The first count of the indictment read:
That on or about the 16th day of March, 1971 at Pittsburgh, in the County of Allegheny in the Western District of Pennsylvania, the defendant, WILBERT WILL SMITH, being, in pursuance of the Military Selective Service Act of 1967, a registrant with Local Board No. 16 at Pittsburgh, Pennsylvania, unlawfully, wilfully and knowingly did fail and neglect to perform a duty required of him by the said Act and the rules, regulations and directions issued pursuant thereto, in that the defendant, while being processed at the Armed Forces Examining and Induction Station in Pittsburgh, Pennsylvania for induction into the Armed Forces of the United States, did fail, neglect, and refuse to undergo a neuro-psychiatric examination under the direction and orders of representatives of the Armed Forces of the United States. In violation of Title 50, Appendix, United States Code, Section 462(a).
Appellant's claim is that the indictment charged him with failing to follow an order from "the Armed Forces of the United States," but that he was convicted for violation of an order from his local board. He claims that he was not under Armed Forces jurisdiction at his physical examination and thus not under a legal duty to follow Armed Forces personnel's orders. Billings v. Truesdell, 321 U.S. 542, 88 L. Ed. 917, 64 S. Ct. 737 (1944). It was therefore necessary for the Government to show that he violated a local board order, appellant claims, to establish his guilt. Swift v. Director of Selective Service, 145 U.S. App. D.C. 224, 448 F.2d 1147 (1971).
The Supreme Court has stated that "convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused." Smith v. United States, 360 U.S. 1, 9, 3 L. Ed. 2d 1041, 79 S. Ct. 991 (1959). Smith was amply and definitely informed of the charges against him so that he was enabled to present his defense and not be taken by surprise by the evidence offered at trial. The indictment sufficiently protects him against another prosecution for the same offense.
Appellant admits that he was not prejudiced by the failure of the indictment to specify that he had been ordered by his local board to the examination. He therefore has no grounds for reversal of conviction if the proof at trial is deemed to be an indictment variance and not an indictment amendment. United States v. Dreer, 457 F.2d 31, 33-34 (3d Cir. 1972).
We discussed the difficulty of distinguishing indictment variances from indictment amendments in United States v. De Cavalcante, 440 F.2d 1264, 1271-72 (3d Cir. 1971), noting that:
The policy expressed by the Court in Russell "is effectuated by preventing the prosecution from modifying the theory and evidence upon which the indictment is based." United States ...