The opinion of the court was delivered by: MCLEAN
This defendant was tried before me, without a jury, on December 9, 1970, on an indictment filed in July 1968 charging him with failing to submit to induction into the Armed Forces of the United States, in violation of 50 App. U.S.C. § 462(a).
Shortly before the trial, defendant moved, pursuant to Rule 48(b), to dismiss the indictment because of the delay in prosecution. I denied the motion with leave to renew it at the close of the trial when I would be in a better position to determine whether defendant had been prejudiced by the delay. Defendant renewed his motion at that time. The facts, which are essentially undisputed, were fully explored at the trial. It is clear that defendant has not been prejudiced by the regrettable delay. That motion is therefore denied.
I turn now to the merits. It is undisputed that on December 2, 1966, defendant did in fact refuse to submit to induction. The issue is whether he should have been required to submit. This depends upon whether the induction notice sent to him by his draft board was valid.
The history of this defendant's efforts to avoid military service is long and somewhat complicated. It is unnecessary to recount it all. The essential facts are as follows.
After an unsuccessful attempt in early 1966 to persuade his draft board, Local Board No. 55 of Endicott, New York, to change his classification from I-A to II-A on grounds not material here, defendant applied to the board in August 1966 for deferment on the ground that he had been selected to enter training in the Peace Corps for a program in Ghana, and that his training would begin on October 1, 1966. On August 22, 1966, the clerk of the board acknowledged receipt of this application and advised defendant that it would be submitted to the board in the middle of September. It was not submitted to the board.
On October 2, 1966 defendant wrote to the clerk of the board stating that there would be a delay in his entry into the Peace Corps because of the fact that he had married a foreign national. The letter stated:
"You will therefore, I believe, receive notification from the Peace Corps that I am withdrawn from my present assignment and will be reassigned to a slightly later program."
On October 5, 1966, the clerk sent to defendant a notice ordering him to report for induction on October 25, 1966. The clerk did this without consulting the board.
On October 7, 1966, the Peace Corps wrote to the board stating that defendant had been accepted by the Peace Corps for the Ghana program and that his training would begin on October 10, 1966. It is obvious that this letter was out of date before it was written and that its author was unaware of the fact that defendant had been "withdrawn from my present assignment," as he had stated in his letter of October 2. The clerk of the board took it at face value, however, and on October 13, 1966, wrote to the Peace Corps stating that defendant's file would be presented to the board at its November meeting. On October 14, the clerk wrote to defendant cancelling the induction notice previously sent to him which had ordered him to report on October 25. The clerk did not consult the board about either of these letters. Defendant's file was not presented to the board at its November meeting.
On October 13 the Peace Corps finally drew abreast of the situation and wrote to the board the letter which defendant had predicted on October 2 that it would write. This letter, which was not received at the board office until October 18, stated that prior to defendant's marriage he had been accepted for the Peace Corps program in Malawi [not Ghana], but because of his marriage, "it was necessary to temporarily withdraw his invitation." The letter went on to say:
"Pending the status of Mrs. Goodfellow's application for U.S. citizenship, and his military status we will be considering them for upcoming programs if they are available. At this point we are prepared to issue them invitations to train for service in Guatemala."
After receiving this letter, the clerk of the board on October 21 sent defendant a new induction notice ordering him to report for induction on November 15, 1966. She did this without consulting the board. She did, however, consult an "auditor" from the State Selective Service Board who was in the local board office at the time. He advised her to send the notice.
On November 1, 1966, there was received by the office of the board a communication from the Peace Corps dated August 31, 1966 advising that defendant had been selected for training for the program in Ghana. This information by this time was hopelessly out of date. There was typed at the bottom of this document, however, ...