The opinion of the court was delivered by: BAUMAN
Ramon Rueda was indicted in three counts for failing to report for induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a)
and 32 C.F.R. § 1632.14.
He was tried before this court, sitting without a jury, and at the conclusion of the trial I found the defendant not guilty as to Count 1. What follows constitutes my findings of fact and conclusions of law with respect to Counts 2 and 3.
Defendant Rueda was born May 30, 1948. On or about June 6, 1966, he registered with Selective Service System Local Board No. 28, located at 1910 Arthur Avenue, Bronx, New York. He was classified 1-A on July 14, 1966 and then reclassified 2-S on January 19, 1967 when the board received a notification that he was a full time student at the State University of New York at Farmingdale. The 2-S classification was renewed on December 14, 1967 upon receipt of another notice stating that defendant was still a full time student and was expected to graduate in June, 1968.
Defendant did not graduate that June. It appears that in September, 1968 he commenced work as a laboratory technician at the New York Medical College and continued his studies part time. Accordingly when the board received notice from the State University that he was no longer a full time student it reclassified him 1-A on November 20, 1968. Defendant subsequently was ordered to report for a pre-induction physical examination, which he passed in March, 1969. On April 26, 1969 the board mailed defendant an order to report for induction on May 15, 1969. This he failed to do, and this failure is alleged as the basis of Count 1. The notice, however, was mailed to the address from which defendant had moved some months before. Defendant had notified the board of his change of address in December, 1968, but the board overlooked this fact. Accordingly, I concluded at the trial that the government had failed to sustain its burden of proving beyond a reasonable doubt that defendant had received this notice, and I dismissed Count 1.
On July 28, 1969 the board mailed, to the proper address, a second order to report for induction, on August 19, 1969. The defendant again failed to report, and this failure formed the basis of Count 2.
On October 9, 1969 the board received from the defendant a request for a student deferment, and on October 15, 1969, received notification from C.W. Post College of Long Island University that he had enrolled in the first year class in September, 1969. Almost simultaneously, on October 13, the board mailed to the United States Attorney for the Southern District of New York a "Delinquent Registrant Report," which charged the defendant with twice having failed to report for induction. The board was notified on November 24, 1969 that because the defendant was then a full time student, the United States Attorney had declined prosecution. On December 18, 1969 defendant was given a 2-S classification valid through October, 1970.
The board received no notification in October, 1970 of defendant's current status and again reclassified him 1-A on November 19, 1970. On December 23, 1970 a notice requiring him to report for induction on January 14, 1971 was mailed and the third count of the indictment is based upon his failure to report on that occasion.
Defendant bases his argument for dismissal of the second count on 32 C.F.R. § 1625.14.
Under that regulation, he contends, the action of the board in reclassifying him 2-S on December 18, 1969 not only cancelled the July 28 induction order, but also absolved him of any delinquency in failing to obey it. The argument is flawed; the regulation merely serves to terminate a registrant's ongoing obligation to comply with an induction order. Nothing in its language or in the manner in which it has been construed by the courts suggests that it operates retroactively to absolve a registrant of criminal responsibility for a previous failure to report for induction.
Indeed, the precise construction of § 1625.14 urged by defendant was rejected by the Third Circuit in United States v. Noonan, 434 F.2d 582 (3rd Cir. 1970), cert. denied, 401 U.S. 981, 91 S. Ct. 1190, 28 L. Ed. 2d 333 (1971). The court reasoned as follows:
"We find neither logical nor statutory support for appellant's conclusion. Apparently the purpose of the specific reference to Classes IV-C and V-A is an explicit warning that any registrant who acquires alien or overage status after the date of the scheduled induction may obtain no relief by seeking a reopening of his classification. To apply appellant's reasoning would be to conclude that all reopenings, except those which contemplate a IV-C or V-A classification, automatically cancel induction orders which have been violated. Other than the obvious havoc this procedure would wreak in the selective service system, this construction of § 1625.14 would mean that a subsequent reopening of a classification would have the legal effect of quashing an indictment before trial, or of arresting a conviction and perhaps setting aside a decision of the court of appeals, or, indeed, of the United States Supreme Court. This regulation simply does not invest local boards with such prerogatives of pardoning power." 434 F.2d at 585.
The conclusion that a subsequent reclassification does not expunge prior disobedience of an induction order has now been embraced by several Courts of Appeals. See United States v. Roberts, 443 F.2d 1009 (8th Cir. 1971); United States v. Hosmer, 434 F.2d 209 (1st Cir. 1970), cert. denied, 401 U.S. 978, 91 S. Ct. 1209, 28 L. Ed. 2d 328 (1971); United States v. Pringle, 438 F.2d 1216 (1st Cir. 1971); United States v. Powers, 413 F.2d 834 (1st Cir.), cert. denied, 396 U.S. 923, 90 S. Ct. 256, 24 L. Ed. 2d 205 (1969); United States v. Smogor, 411 F.2d 501 (7th Cir. 1969), rehearing denied, 415 F.2d 296 (7th Cir. 1969), cert. denied, 396 U.S. 972, 90 S. Ct. 460, 24 L. Ed. 2d 440 (1969); United States v. Hunter, 482 F.2d 623 (3rd Cir. 1973).
Although the Second Circuit has not confronted the issue squarely, a recent decision in this district also supports the construction heretofore advanced. In United States v. Hughes, 364 F. Supp. 310 (S.D.N.Y. 1973), defendant argued that a July induction order which he had disobeyed was cancelled by his Local Board's subsequent consideration of his claim for deferment as a conscientious objector. The district court held that this claim was not sufficient to entitle him to a reopening of his classification. The court added that "even had such a reopening occurred, it would not have voided the prior violation of the order of July 16. Once defendant disobeyed that order, he became subject to indictment and prosecution for that act, and 'what occurs after refusal is not relevant to that issue ' (citing United States v. Powers, supra, 413 F.2d at 838.)." The Court of Appeals affirmed, 490 F.2d 597 (2nd Cir. 1974), but its brief per curiam opinion did not address this question.
Equally untenable is defendant's argument that the United States Attorney's refusal to prosecute in November, 1969, amounts to an estoppel which now prevents the government from prosecuting him for his failures to report prior to November. In United States v. Ware, 473 F.2d 530 (9th Cir. 1973), the defendant had twice failed to report for and once failed to complete his preinduction physical examination. When the matter was referred to the United States Attorney for prosecution, he declined prosecution and instead recommended that the local board permit the defendant yet another opportunity to report. After reporting and again refusing to complete his examination, defendant was subsequently indicted for all four violations. The Ninth Circuit, through Judge Lumbard sitting by designation, rejected the argument that this constituted a waiver of his previous violations of the law. The court stated: "Appellant has cited us to no authority in support of his waiver proposition and we conclude that it is wholly without merit. Indeed, even if Ware had complied with the law on his fourth chance, . . . which he did not do, this would not have eliminated the earlier noncompliance, for 'defendant has no more right to absolve himself of the crime he has committed than has any other law violator, as for example one guilty of larceny by making restitution. ' (citation omitted)." I have concluded that defendant's ...