Appeal from conviction for failure to report for induction in violation of 50 U.S.C. App. § 462(a) on trial to the court, jury waived, in the United States District Court for the Southern District of New York, John M. Cannella, Judge.
Kaufman, Chief Judge, Smith and Oakes, Circuit Judges. Oakes, Circuit Judge (concurring).
This appeal presents the rather unusual question of whether a successor judge can enter a conviction after his predecessor in a non-jury trial has made detailed factual findings, but has left the verdict open in order to consider an essentially legal defense. Because we believe Judge McLean, the trial judge, had decided all relevant factual questions against appellant before his untimely death, and that Judge Cannella, the successor judge, thereafter properly found that appellant had failed to establish his "order of call" defense,*fn1 we affirm the two judges' necessarily cumulative verdict.
Appellant's selective service problems began in January of 1970 when he was ordered to a pre-induction physical. He immediately wrote to his local board requesting information on various deferments and a change in the location of the physical; the board promptly complied with both requests. In April, approximately one month before the physical was to occur, the board received appellant's annual "Current Information Questionnaire," which was covered with a rather bizarre potpourri of his "political and social beliefs." A few days later, appellant again wrote to the board requesting information on medical exemptions and board personnel; the board again replied promptly. Finally on May 7, a few days before the rescheduled physical, appellant once again wrote to the board to claim an exemption as a newly ordained minister in the Universal Life Church. This time the board did not respond, apparently because it had been advised, as Judge McLean later found, that the "church" was a total fraud.
On May 18, appellant reported for his physical dressed in black robes, veil, and facial make-up--his representation of the "death symbol." The examination center psychiatrist, who interviewed this apparition before he was ejected, concluded that appellant was merely malingering and reported the performance to the local board. The board thereupon ordered appellant to a second physical, but the notice failed to reach the potential inductee who was traveling about the country without benefit of a forwarding address.*fn2
After learning that appellant had failed to appear for his second physical, the board ordered him to report for immediate induction, pursuant to a new selective service regulation allowing such orders without the formerly required pre-induction physical.*fn3 In September, approximately two weeks before this induction was to occur, appellant informed the board by letter that his physical acceptability had not yet been established and that he was, therefore, returning the induction order which he believed to be erroneously issued.
Rather than explaining that a pre-induction physical was no longer required, the board reported appellant as a violator. However, at the behest of the Justice Department, the board gave appellant one more chance to comply. Again appellant received the notice of his induction, which was now scheduled for December, in ample time to comply; but he nevertheless waited until the appointed day to remind the board that they were powerless to induct him without a physical. After this second failure to report, prosecution began.
Appellant was tried in July of 1972 before Judge McLean, who, after six days of testimony, rendered detailed factual findings to the effect that "apart from the order of call defense, the government has established the defendant's guilt . . . . beyond a reasonable doubt."*fn4 Judge McLean then asked opposing counsel to prepare a summary of the selective service files of the challenged registrants to aid him in his evaluation of the order of call defense. The summaries were prepared, but Judge McLean died before ruling on the defense or rendering a final verdict.
Judge Cannella, who was assigned the case, recognized its unusual posture, but nevertheless concluded that the only unresolved issue, the order of call defense, was a legal matter which he as successor judge could determine on the basis of the selective service records and regulations before him. After reading the entire record and briefs submitted by both sides, Judge Cannella proceeded to hold that appellant had failed to demonstrate that a sufficient number of the challenged registrants were improperly classified, and that therefore the two induction orders were valid. Judge Cannella thereupon entered a judgment of conviction based on his and Judge McLean's findings.
I. The Order of Call Defense
Appellant's primary contention is that Judge Cannella had no authority to rule on the order of call defense since it was a mixed question of law and fact that could be decided only by Judge McLean, the trier of fact. In this regard, it should be noted that this is a highly unusual case--apparently one of first impression--in that the trial judge died after making his factual findings, but before rendering a final verdict. Thus the government concedes that had Judge McLean died before stating his factual conclusions, a mistrial would have been mandated. And appellant concedes that had Judge McLean rendered a final verdict, any subsequent legal motions could have been argued before, and sentence could have been imposed by, a successor judge under Rule 25(b) of the Federal Rules of Criminal Procedure.*fn5
Unfortunately, the framers of Rule 25 apparently never anticipated the facts of this case, and the rule therefore provides no direct answer to our problem. Nevertheless, we believe--and appellant apparently agrees--that the intent behind Rule 25 was to perpetuate the traditional dichotomy between "law" and "fact," and thus authorize a successor judge to decide purely legal matters, while reserving to the original judge any question of fact.
The problem thus becomes: Was appellant's order of call defense--in which he had to demonstrate that the board acted arbitrarily in ordering his induction while bypassing others who should have been called first--a question of "law" or "fact"? We think ...