The opinion of the court was delivered by: CURTIN
This case is a prosecution for willful refusal to submit to induction into the Armed Forces, in violation of 50 App. U.S.C. § 462(a). By a "Motion to Dismiss Indictment", the defendant Charles William Poczik has raised several defenses relating to his classification and processing. Because these defenses involve questions of law for the court rather than questions of fact for the jury, they are "capable of determination without the trial of the general issue", Fed. R. Crim. P. 12(b)(1), and may be raised and considered before trial. See United States v. Ponto, 454 F.2d 657, 663 (7th Cir. 1971). Cf. United States v. Strayhorn, 471 F.2d 661, 664-665 (2d Cir. 1972).
One of the defenses raised in Poczik's motion is that his board, Local Board No. 88, erred in not considering his eligibility for a deferment based upon physical disqualification for service in the Armed Forces. The following facts relating to this defense are revealed by Poczik's Selective Service file.
On September 12, 1968 Local Board No. 88 sent Poczik a Current Information Questionnaire SSS Form No. 127. On September 22, 1968 he returned the completed form, on which he claimed that an "arm defect" described as "osteochondritis dissectus" disqualified him from military service. He did not attach a physician's statement attesting to the condition but stated that he would send it when he obtained it.
On October 23, 1968 Local Board No. 88 sent Poczik a Notice of Classification, SSS Form No. 110, which changed his classification from II-S to Class I-A. To no avail, Poczik appealed the reclassification to the Appeal Board for the Western District of New York.
On May 26, 1969 Local Board No. 88 sent Poczik an Order to Report for Armed Forces Physical Examination, SSS Form No. 223, which scheduled the examination for June 25, 1969. Poczik failed to appear for the examination and on August 13, 1969 the board sent him a Delinquency Notice, SSS Form No. 304, notifying him that on August 12, 1969 he had been declared a delinquent.
On September 29, 1969 Local Board No. 88 sent to Poczik at his local address an Order to Report for Induction, SSS Form No. 252 setting his induction into the Armed Forces as a delinquent for October 27, 1969. On October 10, 1969 the order was returned with an accompanying letter from Poczik's brother, which stated that by mistake he had opened the envelope containing the order and that the order could not be forwarded because Poczik's current address was unknown.
On October 23, 1969 Local Board No. 88 received from Poczik a letter dated October 20, 1969 with a return address in San Francisco, California. The letter read in part as follows:
I have just been in contact with my brother, who informed me that an induction notice, addressed to myself, was delivered to him. I have been outside of the United States since June and have not been aware of what has been happening in regard to my draft status.
I assume that I have missed a preinduction physical and for that reason have been ordered to induction. I wish to request that I be allowed to take a pre-induction physical at the earliest time possible. I have substantial medical reasons to be deferred from service.
The same day an employee of the board prepared a Report of Oral Information, SSS Form No. 119, which stated as follows:
Contacted the local board members and they feel that the registrant is not entitled to a physical examination and that if something is wrong with him medically, that the authorities would check him when he goes for induction. He is to report for induction as ordered.
By letter dated the same day, Poczik was sent the Order to Report for Induction which had been sent him earlier, told that he could apply for a transfer of induction and informed that "[if] you have any medical statements you wish to have evaluated, kindly take same with you when you report for induction."
On October 27, 1969 Poczik filled out a Transfer for Armed Forces Physical Examination on Induction, SSS Form No. 230, seeking to transfer his induction to Local Board No. 45 in San Francisco. On January 8, 1970 Local Board No. 45 sent Poczik an Order For Transferred Man to Report for ...