The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
On October 11, 1966 defendant Fargas pleaded not guilty to an indictment charging him with refusing to submit to induction into the Armed Forces in violation of 50 App. U.S.C. § 462.
He has moved to dismiss the indictment
for failure to state facts sufficient to constitute an offense against the United States, Rule 12, F.R.Cr.P., and alternatively for a bill of particulars and for production of documents pursuant to Rules 7(f) and 17(c), F.R.Cr.P.
In support of his motion to dismiss Fargas has submitted an affidavit, see Rule 47, F.R.Cr.P., reciting the following facts from his selective service file:
Fargas duly registered with his local board and was given a 1-S (student) deferment. Some time during October 1965 he was reclassified 1-A by the board, apparently on the ground he was no longer attending school. He was then in Europe and did not appeal the board's order of reclassification.
On May 31, 1966, the local board mailed to Fargas a Notice to Report for Induction on June 13, 1966 at the Armed Forces Induction Center at 39 Whitehall Street. On June 1, 1966 Fargas appeared at his local board and requested the special form for conscienticus objectors (S.S.Form No. 150). See 32 C.F.R. § 1612.11. The board supplied him with the form and directed him to complete and return it by June 9. The board also fixed that date for a personal interview concerning his conscientious objector claim. On June 9, 1966 Fargas filed his completed Form 150 claiming exemption from both combatant and non-combatant service as a conscientious objector and was interviewed by the local board with respect to this claim. On June 10 the board advised him by letter that the "evidence did not warrant the re-opening of your case and reconsideration of your present classification" and that he was "to report for induction as scheduled on June 13, 1966."
Fargas then submitted to the board a written summary of what had been done and said at his interview. Cf. 32 C.F.R. § 1624.2(b). On June 13 Fargas apparently advised the board by letter that he intended to refuse induction into the Armed Forces. On June 16 he mailed to the board a notice in letter form appealing its decision denying him reclassification as a conscientious objector after interview.
What happened then is not clear. It appears, however, that by letter dated July 6, 1966, New York City Selective Service Headquarters through the Chief of its Legal Division returned Fargas' file to the local board "to permit the board the opportunity to reply to the statement of the registrant dated June 10, 1966, summarizing his interview of June 9, 1966." The letter stated
"If the Board feels after again reviewing the file in the light of some of the new information which was most recently received by the Local Board that a new interview may be beneficial, then the registrant may be so advised. He should also be informed of his day to day obligation to report for induction under the outstanding order dated May 31, 1966, and that any scheduled interview does not have priority over said obligation."
On July 14, 1966 the local board "reviewed thoroughly all material in the file" and determined that the "facts did not warrant any change in status." It stated the following somewhat confusing reasons for this conclusion:
1. At no time did Fargas "indicate any performance for services [sic] in area of conscientious objection."
2. "He attended H.S. of Fashion Industries 1960-65 and then obtained a position as a professional actor with a contract for 4 weeks terminating about 7/16/66 or 6 weeks after he was ordered to report for induction."
3. He had been given "every opportunity to indicate what services in Armed Forces he was willing to perform."
Fargas was advised by letter dated July 15, 1966 that the "facts do not warrant a reopening of your case" and that he had a "continuing duty from ...