Appeal from conviction after bench trial in the Southern District of New York, Lloyd F. MacMahon, District Judge, for refusal to report for an armed forces physical examination, in violation of Section 12(a) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a)(1970), and 32 C.F.R. § 1628.16 (1972).
Mulligan, Oakes and Timbers, Circuit Judges. Oakes, Circuit Judge (dissenting).
Appellant Thomas Lee Rudd appeals from a judgment of conviction entered April 6, 1973 after a bench trial in the Southern District of New York, Lloyd F. MacMahon, District Judge, for refusal to report for an armed forces physical examination, in violation of Section 12(a) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) (1970), and 32 C.F.R. § 1628.16 (1972). He was sentenced as a young adult offender, 18 U.S.C. §§ 4209 and 5010(d)(1970), with imposition of sentence suspended and appellant placed on probation for two years conditioned upon his performing two years of alternative service.
Appellant's essential claim on appeal is that, although he was classified 1-A by his local board at the time of the order to report for a physical examination, he was entitled to a 1-O (conscientious objector) classification; that he would have obtained such classification if he had not been misled by his local board; that as a 1-O he could have waived a physical; and therefore he was immune from prosecution for refusal to report for a physical. We disagree.
The short answer to appellant's claim is that, assuming arguendo that the local board's 1-A classification was invalid, it did not excuse him from reporting for a physical examination. As the Supreme Court said in McKart v. United States, 395 U.S. 185, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969):
". . . a registrant is under a duty to comply with the order to report for a physical examination and may be criminally prosecuted for failure to comply. If the Government deems it important enough to the smooth functioning of the System to have unfit registrants weeded out at the earliest possible moment, it can enforce the duty to report for pre-induction examinations by criminal sanctions." Id. at 201. (footnotes omitted).
"An invalid classification . . . would not be a defense today to a prosecution for failure to report for a pre induction examination." Id. at 203. (emphasis added).
We so held upon essentially similar facts on August 15, 1973 in affirming from the bench a conviction for refusal to report for a physical examination despite an alleged invalid 1-A classification. United States v. Lawrence, 481 F.2d 1397 (2 Cir. 1973). See also United States v. Shriver, 473 F.2d 436, 437 (3 Cir. 1973); United States v. Heywood, 469 F.2d 602 (9 Cir. 1972), distinguishing United States v. Hayden, 445 F.2d 1365 (9 Cir. 1971); United States v. Dombrouski, 445 F.2d 1289, 1296 (8 Cir. 1971); United States v. Zmuda, 423 F.2d 757 (3 Cir.), cert. denied, 398 U.S. 960, 26 L. Ed. 2d 545, 90 S. Ct. 2176 (1970); United States v. Moriarty, 319 F. Supp. 117, 121 (W.D.Mo. 1970). And while we recognize the force of Judge Feinberg's characteristically perceptive dissent in United States v. McGee, 426 F.2d 691, 705 (2 Cir. 1970), aff'd on other grounds, 402 U.S. 479, 29 L. Ed. 2d 47, 91 S. Ct. 1565 (1971), it serves here to emphasize that the controlling law of this Circuit is to the contrary.
Moreover, we do not believe that appellant was in any way misled by the local board. He was sophisticated and intelligent. His objection to the special form for conscientious objectors did not preclude him from stating his views. His letters to the local board are indicative of his attitude. The record fully supports Judge MacMahon's finding in this respect:
"He was not misled. On the contrary, as I have said, he was just being cute. He knew full well, and was fully informed from some other source, as his letter reveals that he could claim conscientious objector." Record at 24.