The opinion of the court was delivered by: COSTANTINO
COSTANTINO, District Judge.
This is a criminal prosecution charging Rodney Richard Hill with knowingly failing to report for his Armed Forces physical examination, in violation of 50 U.S.C. App. § 462(a); 32 C.F.R. § 1628.16 (count one) and knowingly failing to report for induction, in violation of 50 U.S.C. App. § 462(a); 32 C.F.R. § 1632.14 (count two). Defendant waived a trial by jury, and the case was tried to the court on September 12, 1973. Decision was reserved pending the receipt of post-trial memoranda.
There is little dispute as to the facts in this case. Defendant registered with Selective Service Local Board Number 54 in Long Island City, New York in 1964 and indicated that he was attending college with an expected graduation date of June 1967. No confirmation of such attendance was received by the Local Board and in May 1965 he was classified 1-A and ordered to report for a preinduction examination in September 1965. Defendant failed to report. In October 1965 the Local Board received a letter from defendant to the effect that he was studying and working abroad and he requested that he be given a student deferment. After receiving confirmation, the Local Board granted defendant the deferment.
In October 1966 the Local Board was notified that defendant was a full time student at Parsons College, Fairfield, Iowa. His student deferment was extended to October 1967. Defendant thereafter failed to reply to the Board's request for current information. He was accordingly reclassified 1-A in January 1968.
On January 31, 1968 the Local Board received a request for an occupational deferment from defendant as he was employed as a Recreation Specialist at the Kilmer Job Corps Center, Edison, New Jersey. A letter from his supervisor described his position as requiring a "full-time effort to socially rehabilitate and enhance the lives of economically and culturally disadvantaged young men." His contribution was described as "invaluable" and his induction would cause a "tremendous loss" to the program. The Board granted the occupational deferment in February 1968 to run until February 1969.
In January 1969 the Local Board received a request for another occupational deferment as defendant was then employed as a resident Counselor-Lecturer with the SEEK Program of the City University of New York. According to the letter from the Director of the SEEK Residence Hall, defendant was in charge of one of the floors of the Residence Hall, counseling college students and assisting in their adjustment to college life. The Board granted defendant a deferment until February 1970.
In January 1970 the Local Board sent defendant a Current Information Questionnaire. No answer was received from the defendant. Defendant was therefore placed in the 1-A classification and a notice was sent to him. No appeal was ever made from this classification.
In February 1970 defendant was sent an order to report for a preinduction examination and he failed to report. On March 30, 1970, however, he appeared in person at his Local Board and requested a deferment on the ground that he contributed to the support of his child who was living with its mother. He was provided a Dependency Questionnaire to complete and was requested to provide proof of support. Defendant failed to fill out the questionnaire or return any further information, but on April 16, 1970 Sandra LaVerne Sams, the child's mother, wrote to the Local Board and advised that the Queens Family Court had ordered defendant to pay $10.00 per week for the child's support. She did not indicate whether the payments were being made. She further notified the Board on September 16, 1970 that the marriage had been annulled on May 4, 1970.
On March 30, 1970, the Local Board received a reply from the SEEK program to the effect that defendant had terminated his employment there on May 31, 1969. That letter listed his last known address as 99-03 23rd Avenue, East Elmhurst, New York.
The Local Board on April 17, 1970 directed defendant to comply with the preinduction order that had been issued in February 1970, by reporting for an Armed Forces examination on May 17, 1970. Defendant again failed to report.
In May 1970 the Board considered defendant's entire file and again classified him 1-A. Although the usual notice of right to appeal was sent to the defendant, no appeal was taken. However, on May 20, 1970, the defendant wrote the Board and requested a new preinduction examination date as he had been ill on May 17, 1970. That letter listed defendant's return address as 99-03 23rd Avenue, East Elmhurst, New York. Prior to receipt of defendant's letter, the Board had already rescheduled the preinduction examination for June 4, 1970. Defendant again failed to report. After receiving defendant's letter on May 22, 1970, the Board issued a new order rescheduling the examination, this time for August 20, 1970. Defendant again did not report for the preinduction examination. It is for defendant's continuous failure to comply with the Local Board's orders to report for a preinduction examination that he is being charged with count one of the indictment.
On October 16, 1970 after the defendant's lottery number had been reached, he was ordered to report for induction on November 2, 1970. He failed to report. Defendant's continuous failure to report is the basis for count two of the indictment.
Defendant's case was referred to the United States Attorney for prosecution and on August 3, 1971 after being contacted by a Special Agent of the Federal Bureau of Investigation he reported to the Local Board and filled out a Current Information Questionnaire. He gave as his mailing address the home of his parents, 99-03 23rd Avenue, East Elmhurst, New York, the address that he had given on several previous questionnaires and letters. At that time Mrs. Isabel Oldford, the Local Board Clerk, advised defendant of his obligation to report for induction. A letter from the F.B.I. to the Local Board dated August 10, 1971 stated "[this] is to confirm that on August 3, 1971, the subject appeared at your board and furnished his new address of 1035 Clarkson Avenue, Brooklyn, New York."
At that time the United States Attorney declined to prosecute defendant with a view toward encouraging compliance with the induction order. Defendant was advised of his continuing duty to report on September 14, 1971 and again on February 17, ...