Smith, Kaufman and Mulligan, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
Gregg Steven Strayhorn has appealed from a judgment of conviction for willful failure to report for induction, 50 U.S.C. App. § 462(a), entered in the Southern District of New York after a court trial before Judge Harold R. Tyler, Jr. The opinion below is reported at 347 F. Supp. 1186 (S.D.N.Y.1972). The chief issues presented for review concern the proper scope and administration of the order of call defense in Selective Service cases. We find no error in the proceedings below, and affirm.
As its name implies, the order of call defense involves contentions by a Selective Service defendant that his order for induction came out of proper sequence, or, conversely, that others who should have been called before him were not. Its recognition by this court, United States v. Weintraub, 429 F.2d 658 (2nd Cir. 1970), cert. denied, 400 U.S. 1014, 91 S. Ct. 572, 27 L. Ed. 2d 627 (1971), and by others, Yates v. United States, 404 F.2d 462 (1st Cir. 1968), rehearing denied, 407 F.2d 50 (1969); United States v. Dudley, 451 F.2d 1300 (6th Cir. 1971); United States v. Baker, 416 F.2d 202 (9th Cir. 1969); but see Schutz v. United States, 422 F.2d 991, 994 (5th Cir. 1970), rests on at least two underlying premises. First, the courts have recognized in this and other contexts that the general order of induction has been a matter of some concern to Congress, see Gutknecht v. United States, 396 U.S. 295, 306, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970); Baker, supra, 416 F.2d at 204-205; Dudley, supra, 451 F.2d at 1303, and that the particular rules covering priority represent considered social, economic, and political judgments about who should be called to serve at what time. See Dudley, supra ; United States ex rel. Bayly v. Reckord, 51 F. Supp. 507, 515 (D.Md.1943). Thus, the order of call defense serves to insure that the Selective Service system does not disregard these priorities. But second, and more important, those registrants dealing with the Selective Service, as with any administrative agency, should be able to expect that they will be treated fairly, according to previously established ground rules. See United States v. Griglio, 467 F.2d 572 (1st Cir. 1972), aff'g 334 F. Supp. 1283 (D.Mass.1971). In this regard, the order of call defense serves as a safeguard of the individual's right to be treated with due process of law by federal administrative agencies. Cf. Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954).
But, as always, there are countervailing policies. The government, with its strong interest in national defense, depends upon a well-functioning Selective Service system to provide members of the armed forces. Moreover, even the most efficient of administrative agencies are not infallible, and not every minor slip-up represents such an affront to the priority rules and notions of due process as to require the rather drastic sanction of reversing a criminal conviction for failure to submit to induction. Thus, while the majority of courts have had little difficulty recognizing the existence of the order of call defense, definition of its substantive and procedural parameters has proven more difficult.
This court first approached these problems in United States v. Sandbank, 403 F.2d 38 (2nd Cir. 1968). There, we held that the government need not establish the propriety of the order of call as part of its case in chief against every Selective Service defendant; rather, response from the prosecution was required only when the issue was fairly raised as part of the defense. We thus rejected the doctrine of United States v. Lybrand, 279 F. Supp. 74 (E.D.N.Y.1967), to the contrary, and every circuit that has since considered the question has followed suit. Yates, supra ; United States v. Norman, 413 F.2d 789, 792 (6th Cir.), cert. denied, 396 U.S. 1018, 90 S. Ct. 585, 24 L. Ed. 2d 510 (1969); Baker, supra ; Little v. United States, 409 F.2d 1343 (10th Cir. 1969).*fn1
In United States v. Weintraub, supra, we then sought to define the standard and quantum of proof relevant to the order of call defense. We began there, as we do here, with the statutory directive that decisions of the local board are to be final, 50 U.S.C. App. § 460, and thus cannot be judicially reviewed unless lacking any basis in fact. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1944). Thus, our job in an order of call case is not to second-guess the draft board or to determine the propriety of its actions de novo, but rather to determine whether its handling of the challenged call is "so lacking in support in the record as to be arbitrary and capricious." 429 F.2d at 660. As other courts have recognized, such a standard not only reflects the finality policies of the Selective Service Act, but also strikes something of a balance between the individual and societal interests at stake here. Griglio, supra; Dudley, supra ; United States v. King, 455 F.2d 345 (1st Cir. 1972).
In Weintraub, we also noted that once an "apparent departure" from the proper order of call was shown by the defendant, the burden shifted to the government to explain. 429 F.2d at 661. While the government is then required to show the propriety of its actions beyond a reasonable doubt, see King, supra; Dudley, supra; Baker, supra, the seemingly heavy demands of that standard must be viewed in light of the "basis in fact" requirement. Thus, what the government must prove beyond a reasonable doubt is not that the local board acted flawlessly, but rather that the defendant was not prejudiced by arbitrary and capricious action.
Moreover, the order of call defense is not made out by exposing any single error, however egregious, in the order of call. Rather, the record must show actual prejudice to the defendant, wholly unjustified delay of the induction of enough 1A registrants so that if the local board acted correctly, the defendant would not have been called when he was. United States v. Camara, 451 F.2d 1122 (1st Cir. 1971); United States v. Smith, 443 F.2d 1278 (9th Cir. 1971). Thus, before the number five man of a ten man monthly delivery "list" can receive the benefit of the order of call defense, it must appear that six available registrants with higher priorities*fn2 have been arbitrarily bypassed.
In practice, the discharge of the various evidentiary burdens outlined above need not be cumbersome. The defendant can meet his initial requirement by merely showing that, at the time of his induction order, there existed enough available 1A's with higher priorities for call than his, whose inclusion on a monthly list would have "bumped" him off. In response, the government need not engage in extended review of the attacked bypasses, but can normally satisfy its burden through documentary evidence and testimony of a local board clerk.
At various stages of the proceedings in this case, the defendant, the government, and the district court have expressed some understandable confusion about the precise scope of the government's burden in these cases. While no exact definition is possible, we reiterate what was said in Weintraub -- only that local board action so lacking a basis in fact as to be arbitrary and capricious will allow a judicial conclusion that another registrant was improperly bypassed. We further hold, as we believe Weintraub made implicit, that a record which merely shows that some Selective Service deadlines have been missed, or that regulations have been technically violated, will not suffice.*fn3 Rather, as Chief Judge Coffin of the First Circuit said in Griglio, supra :
"We will not deem a violation of a regulation as applied to third persons a deprivation of due process as to a registrant unless it is apparent that favoritism to another or discrimination against the registrant was intended, or unless the violation is so flagrant and serious that, whether intended or not, concern for fair and efficient administration justifies the sanction of voiding an induction adversely affected by the violation."
Moreover, in the interest of efficient administration of justice, we take this opportunity to set down guidelines for the future handling of the order of call defense in the district courts. We agree with the decisions in King, supra, and United States v. Lloyd, 431 F.2d 160, 164 (9th Cir. 1970), that the order of call defense, going as it does to the validity of the induction order, is properly heard by the court, not the jury. Cf. Cox v. United States, 332 U.S. 442, 452-453, 68 S. Ct. 115, 92 L. Ed. 59 (1947). Consequently, in light of the broad discovery permitted by the federal rules, the minimal initial burden placed on the defendant, and the technical nature of the defense, we hold that it is one properly raised before trial through a motion for a judgment of acquittal. See King, supra, 455 F.2d at 354. Aided by liberal discovery, the motion should sufficiently ...