Rodriguez v. United States, 18947.

• Decision Date: 19 January 1972
• Docket Number: No. 18947.,18947.
• Citation: 452 F.2d 659
• Parties: Frank RODRIGUEZ, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 659 (1971)

Frank RODRIGUEZ, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.

No. 18947.

United States Court of Appeals, Seventh Circuit.

October 15, 1971.

Rehearing Denied January 19, 1972.

Rodney H. Bayless, Gary, Ind., for defendant-appellant.

William J. Bauer, U. S. Atty., Mary L. Sfasciotti, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before DUFFY, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges.

DUFFY, Senior Circuit Judge.

Defendant was convicted of violating Title 50 U.S.C. App. § 462 for failure to submit to induction on May 5, 1970.

On June 28, 1967, defendant was classified I-A by his Local Board. He also was informed of the name of the Government Appeal Agent, one Stanton. Defendant did not appeal his classification. On June 14, 1968, defendant was ordered to report for a physical examination but he could not appear because he was, at that time, serving a six months' term for the sale of narcotics.

During his incarceration, defendant was reclassified I-Y. On April 11, 1969, defendant was again classified as I-A and was again informed of draft appeal procedure.

Defendant was ordered to report for a physical examination on June 10, 1969, and passed. On March 4, 1970, defendant mailed a Current Information Questionnaire to his draft board showing he was married on December 10, 1969, but that he had no children. On March 18, 1970, his local board mailed defendant an induction order for April 2, 1970.

On March 20, 1970, defendant's wife visited a doctor who determined she was pregnant. On March 23, 1970, the defendant personally advised his local board of her pregnancy.

Defendant did not report for induction on April 2, 1970, as ordered, due to extremely bad weather, a fact uncontested by the Government. On April 20, 1970, defendant was ordered a second time to report for induction on May 5, 1970.

On April 30, 1970, five days before his second induction date, defendant informed his local board he was one of Jehovah's Witnesses, that he desired to complete a conscientious objector form and have a meeting with the Board. He completed Form No. 150 for conscientious objector claims, as well as a special list of questions for Jehovah's Witnesses, filing the forms the following day. On May 4, 1970, the Board held a meeting and decided there was no change in the status of defendant from circumstances over which defendant had no control¹ and advised defendant to report for induction the next day. Defendant did report but refused to step forward.

In our view, the second order for induction of April 20, 1970, cancelled and superseded the first induction order. This being our conclusion, defendant's application to the Board for a III-A classification was timely made. Therefore, defendant is entitled to have the Board again consider reopening his file for a hearing on the information provided the Board on March 23, 1970 on defendant's request for a III-A classification. White v. United States, 422 F. 2d 1254 (9 Cir., 1970).

In White, supra, the Court considered a somewhat similar situation. There, the registrant was indicted for failure...