Opinion
No. 25493.
September 14, 1970.
J.B. Tietz (argued), Los Angeles, Cal., for appellant.
Paul J. Fitzpatrick (argued), Asst. U.S. Atty., James L. Browning, U.S. Atty., Jerrold M. Ladar, Chief, Criminal Division, San Francisco, Cal., for appellee.
Before BROWNING, CARTER, and TRASK, Circuit Judges.
Appellant was indicted for failing to report for induction on January 10, 1968, pursuant to an order to report issued December 19, 1967, 50 App. U.S.C. § 462(a), and was convicted by the district court sitting without a jury. The only evidence submitted was appellant's selective service file, introduced by the government without objection by the defense.
Appellant contends that he was declared a delinquent prior to the issuance of the order to report for induction and therefore his conviction must be reversed under Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970).
In United States v. Thomas, 422 F.2d 1327 (9th Cir. 1970), we held that, absent a showing to the contrary, we must assume that a delinquency declaration results in an accelerated induction requiring reversal.
In its supplemental memorandum, the government argues that it appears conclusively that appellant's delinquency status did not affect the issuance of the December 19, 1967, induction order, upon which the prosecution was based, because an earlier order to report had been issued on September 28, 1967, before appellant was declared a delinquent on November 14, 1967, thus establishing that he was due to be inducted in the regular order, without regard to delinquency. However, the file also discloses that on May 5, 1967, appellant had been ordered to report on May 16, 1967, for a physical examination, had failed to report, and as a result had been declared delinquent on that date. Even though appellant finally reported for his physical, it does not appear that the board removed him from delinquency status pursuant to 32 C.F.R. § 1642.4(c). We cannot assume that the subsequent induction orders were not accelerated by his continuing status as a delinquent.
Reversed.