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UNITED STATES v. DOLINGER

October 18, 1974

UNITED STATES of America,
v.
Mark Anton DOLINGER a/k/a Marc Anton Delanier, Defendant


Edward Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

The defendant is charged with a knowing failure to report for induction into the Armed Forces of the United States in violation of 50 Appendix, U.S.C.A., section 462(a) and regulation 32 C.F.R., section 1641.5 (1973). *fn1"

 The defendant registered with Local Board 4, New York City, on February 23, 1966. He was classified 1-A in April 1966. At a pre-induction physical examination he was found qualified, following which he was ordered, on September 26, 1966, to report for induction on October 10, 1966. However, before that date he requested a 2-S student classification, which was granted. He retained this until May 8, 1969, when he was reclassified 1-A.

 On May 29 the Board received a medical report from Columbia Presbyterian Hospital outlining defendant's treatment there between August 1968 and May 1969 for chest pains, acute shortness of breath and chronic coughing. As a result, on June 17, 1969, the defendant was ordered to report for another physical examination on June 24, which he failed to do. On June 25 another order was sent to him to report for a physical examination, this time on June 30th. Again, he failed to report, but on July 22 the Board received a letter from the defendant stating that he had just returned to New York after a six-week stay in California and that the notice to report for a physical examination had not been forwarded to him. He requested an examination at another examining center, preferably the West Coast. The Board responded on August 5th with an order to defendant to report to a New York City examining center for a physical examination on August 12; again he failed to appear.

 There followed over the next several months correspondence between the defendant and the Board in which at various times the defendant requested a transfer of his physical examination to a California Board and/or offered an excuse for not appearing for a scheduled examination. The Board approved the requests for such a transfer, gave the defendant instructions regarding it, and informed him that he was under a continuing obligation to report for an examination and should do so by a certain date. He failed to do so. Finally, following his failure to report for a scheduled examination at a Los Angeles, California examining center on January 8, 1970, his papers were returned to the New York Board in February. On June 5, 1970, the Board sent him an order to report for induction on June 29th; he failed to do so. The Board received a letter from the defendant on November 9, 1970, a phone call from him on December 15, another letter from defendant and one from a physician on August 10, 1971, but the defendant still had not reported for induction. The Board continued its efforts to have defendant comply with the induction order.

 On November 9, 1972, the Board wrote to the defendant, making reference to his previous failures to report, and advised him of his "continuing duty" to report (hereafter the "continuing duty" letter). The letter stated:

 
"Because of your failure to report as previously ordered, the Armed Forces Examining . . . Station . . . will be expecting you [on] . . . November 20, 1972 at 7:30 a.m. at . . . 201 Varick Street, New York. . . . If you again fail to report and comply with this letter, you will be subject to immediate prosecution."

 The letter was sent by registered mail to defendant at the address defendant had given in his August 10, 1971 letter to the Board. The return receipt was received by the Board on November 14, 1972 with a delivery date of November 11, 1972, signed by "Mrs. I. Dolinger" as agent of the addressee, "M. A. Delanier." Mrs. I. Dolinger is the defendant's mother. The defendant failed to report for induction on November 20 and it is that failure which is the subject of the instant indictment.

 At the close of the government's case the defendant moved for a judgment of acquittal on two grounds: (1) the "continuing duty" order was void for lack of Selective Service jurisdiction to create a continuing duty spanning the 1967 Military Selective Service Act and the 1971 Draft Extension Act; and (2) the evidence is insufficient to show that the defendant possessed the knowledge necessary to sustain a conviction.

 We first consider the defendant's jurisdictional attack. This is based upon a change in the Selective Service law between the time the induction order was sent to the defendant in June 1970 and the time the "continuing duty" letter was mailed to him in November 1972. The June 5, 1970 order was issued under the Military Selective Service Act of 1967, then in effect, which provided:

 
"Notwithstanding any other provision of this title . . ., no person shall be inducted for training and service in the Armed Forces after July 1, 1971, except persons now or hereafter deferred under . . . [section 456 of this appendix] after the basis for such deferment ceases to exist." *fn2"

 Thus, between the date of the induction order to defendant and that of the "continuing duty" letter, the Selective Service induction authority expired except as to those who had been granted deferments under 50 App. U.S.C., section 456. After the Board's authority to induct had ceased to exist on July 1, 1971, with the exception as noted, Congress, on September 28, 1971, passed the Draft Extension Act of 1971, *fn3" which extended the induction authority to July 1, 1973, retroactive to July 2, 1971.

 The defendant, citing a Ninth Circuit Court of Appeals ruling, *fn4" contends (1) that the authority to induct individuals under the 1967 Military Selective Service Act ceased on July 1, 1971, and that the "continuing duty" letter of November 9, 1972, based on the June 5, 1970 order of induction, was issued without authority and void; and (2) that Congress did not intend to revive such void orders when it amended section 467(c) on September 28, 1971.

 The Carrillo case did not consider or pass upon the factual situation here presented and it is inapposite to the instant case. Here, the defendant, prior to the issuance of the June 5, 1970 order for his induction, had been granted a student deferment pursuant to section 6 of the 1967 Act, *fn5" which deferment had been revoked on May 8, 1969, when he was no longer a full-time undergraduate student. *fn6" As noted above, the 1967 Act contained an exception which specifically authorized induction after July 1, 1971 of persons receiving such deferments. It is clear that the Board's authority continued after July 1, 1971 to act as to those persons who had been deferred and who were within the exception. The defendant was within the exception, and the order of ...


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