The opinion of the court was delivered by: COOPER
In this nonjury trial, defendant is charged with deliberate failure to submit to induction into the Armed Forces. 50 U.S.C. App. § 462(a); 32 C.F.R. § 1632.14. Upon conclusion of the trial, the Court reserved decision on defendant's motion for judgment of acquittal.
That defendant intentionally failed to report for induction on July 16, 1970 as ordered is not in dispute. His assigned reason was that he had departed from the United States just prior to that date under emergency conditions in order to care for a sick brother. Defendant urges that he is entitled to judgment of acquittal upon two grounds: (1) that his absence from the country on the date of ordered induction and written request for reclassification, allegedly mailed prior to that date, entitled defendant to such reclassification and cancellation of the outstanding order, 32 C.F.R. §§ 1622.42(c), 1625.14; and (2) that the review by his local draft board (hereafter the "board") of defendant's subsequent claim for recognition as a conscientious objector constituted a reopening of defendant's classification and likewise mandated cancellation of the order. 32 C.F.R. § 1625.14.
After careful consideration of the trial testimony, the arguments and briefs of counsel, we find defendant's claims without merit and accordingly find the defendant guilty.
The essential facts follow. Defendant, an alien resident of the United States, was duly registered with Local Board 30, Bronx, New York, on October 31, 1969. On March 24, 1970, the board classified him in Class 1-A. On May 12, 1970, defendant was given an Armed Forces Physical Examination and was found acceptable for military service. On June 16, 1970, the board issued an order to defendant to report for induction on July 16, 1970.
Defendant appeared at the board on June 19, 1970 and requested a postponement of induction so that he could attend Brooklyn College (his acceptance there was not disputed). This was denied by the board on July 2, 1970. Defendant was notified by letter of the board's decision and advised to report as ordered on July 16, 1970. He does not contest the board's decision regarding this request.
On July 16, 1970, defendant failed to report for induction. On July 20, the board received a letter purportedly in defendant's handwriting advising that he had left the country in an emergency owing to his brother's illness in British Honduras where he was attending him. In that same letter, defendant requested reclassification to Class 4-C as an alien resident then temporarily residing outside the United States, pursuant to 32 C.F.R. § 1622.42(c). The letter was dated July 14, two days prior to the reporting date, its handwritten return address, Belize, British Honduras. The postage on the envelope was from British Honduras. The envelope was postmarked "Bronx New York, Tremont Station, July 18, 1970." On July 28, a copy of defendant's letter was received by the board with accompanying envelope postmarked "Bronx, New York July 27, 1970." Defendant's Selective Service file indicates that the board took no action regarding the request for a 4-C reclassification.
On October 19, 1970, defendant advised his board in writing that he had become a conscientious objector to participation in war in any form. Defendant was thereafter issued SS Form 150 (Special Form for Conscientious Objector) which he completed and returned on October 27. On December 3, the United States Attorney elected to decline prosecution of defendant in favor of local board action and advised the board of its decision by letter of December 8.
Defendant was interviewed by the board on March 9, 1971 concerning his conscientious objector claim and it thereafter denied the claim for the stated reason that defendant ". . . is not sincere in his convictions as a c.o." See Exhibit F to defendant's memorandum of law, dated February 6, 1973. The board advised defendant of its decision by letter of March 11, 1971 and ordered him to appear for induction on March 22, 1971.
At trial defendant's case consisted of a single witness, his wife, who testified that defendant upon her request went to British Honduras on July 11, 1970 to care for his brother then allegedly suffering from appendicitis. Her testimony, though not refuted by the Government, was self-contradictory; together with her demeanor it suggested a meticulous rehearsal before the oath was administered. We reject it.
Defendant first contends that based upon his departure from the United States prior to the induction date the board was required to reclassify him 4-C pursuant to 32 C.F.R. § 1622.42(c)
He argues that because the letter was dated and allegedly mailed prior to the induction date, his right to reclassification arose prior thereto and therefore automatically cancelled the induction order pursuant to 32 C.F.R. § 1625.14.
To support his position, defendant relies upon Local Board Memorandum 72 ("LBM 72") which provides that a notice of claim mailed by a registrant is effective as of the date of mailing rather than the date of receipt by the board.
We cannot agree. Even assuming that defendant's letter was in fact mailed prior to the induction date (we note that the envelope bearing the letter was postmarked two days subsequent to said date), such a request becomes effective only upon its receipt by the local board. United States v. Baldridge, 454 F.2d 403 (1st Cir. 1972); United States v. Daniell, 435 F.2d 834 (1st Cir. 1970); Blades v. United States, 407 F.2d 1397 (9th Cir. 1969). LBM 72 provides that for the purpose of determining whether a registrant has met a "cut-off" date, the board shall look to the date of mailing by the registrant rather than the date of receipt by the board. By its own terms LBM 72 applies only to a registrant's duties under 32 C.F.R. §§ 1624.1 (request for personal appearance), 1626.2 (appeal to state board), 1627.3 (appeal to President) and 1641.6 (response to notice). United States v. Baldridge, supra. Thus the regulations frequently authorize a local board to mail documents to registrants (e.g., 32 C.F.R. §§ 1621.9, 1623.1(a)) and provide that the period of days allowed the registrant to perform any duty required of him shall be computed as of the date of mailing. ...