Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 71-481).
Gibbons and Hunter, Circuit Judges, and Muir, District Judge. Gibbons, Circuit Judge, dissenting.
Appellant Richard Anthony Hunter has been convicted by a jury for failure to report for induction pursuant to 50 U.S.C. App. § 462. He is appealing from the denial by the district court of his motion for judgment of acquittal.
He is presenting the same issues to us that he presented to the district court:
1) did the local board's failure to arrange a meeting with the government appeal agent invalidate appellant's induction order;
2) did the local board deprive appellant of due process of law when it failed to consider some statements in a questionnaire as a claim for a hardship deferment;
3) did the failure of the local board to consider a conscientious objector claim presented by appellant after he was indicted for failure to report for induction invalidate his induction order.
To consider his claims, it is necessary to set forth appellant's selective service history in some detail.
1. Appellant was born May 7, 1949 and registered with his local board on September 7, 1967 under the name of Antonio Estrada Sanchez. He indicated that he was a full time high school student due to graduate in June, 1969.
2. November 1967. The board wrote to appellant's high school for verification of his status. The school replied that appellant was not on its roll. The board reclassified appellant 1-A and sent him a letter informing him that he had a right to a personal appearance with a government appeal agent who would give him legal counsel on selective service matters.
3. Appellant responded that he did wish a personal appearance. Instead of immediately arranging such an appearance the board answered appellant with the following letter:
"We are in receipt of your letter as of this date in which you request a personal appearance with the Government Appeal Agent.
"If it is for DEPENDENCY OF YOUR MOTHER AND GRANDMOTHER, all you must do is write a letter to our board asking for a hearing with the board members.
"This letter would be placed in your file until after you pre-induction examination -- if you are rejected you would be placed in Class I-Y or Class 4-F. No hearing would be necessary.
"If you are found acceptable, you would be granted a hearing with the BOARD MEMBERS and the GOVERNMENT APPEAL AGENT to Discuss your classification in reference to dependency.
"If dependency is the case, we suggest you write the letter immediately. If not, kindly contact me by phone 597-7890 or 597-7891 and I will advise you accordingly."
Appellant telphoned the board and it made a notation on its copy of the letter it had sent to appellant that appellant would have his school forward verification that he was enrolled under the name of Hunter. Appellant ...