Hastings, Senior Circuit Judge, and Kerner and Stevens, Circuit Judges. Stevens, Circuit Judge (dissenting).
The defendant, Richard Victor Ponto, was indicted for failure to submit to induction into the Armed Forces. 50 U.S.C. App. § 462. After hearings before the district court but prior to trial, the judge granted the defendant's motion alternatively requesting the court "to dismiss the indictment or for a directed judgment of acquittal." The government appeals.
The defendant, who was living with his wife and child, had been classified III-A (hardship) by his local draft board. In January, 1966, he was reclassified I-A after the board learned that he was no longer living with his wife and child nor contributing to their support. On March 3, 1967, after other unsuccessful attempts to contact defendant, it ordered Ponto to report for induction on March 27, 1967; the order was returned by the post office indicating that defendant had moved.
On March 27, the day he was to report for induction, defendant requested a III-A classification claiming that he was now the sole means of support for his mother, who, he stated, "is sick and unable to work at this time." He filed a Dependency Questionnaire (SSS Form 118) representing his annual contribution to his mother's support to be $1,500; he listed his mother's annual income as $2,500. His income for the prior year was $5,000.
The board responded that it had considered Ponto's request for deferment and decided "that there be no change in your classification." Ponto was subsequently given a courtesy hearing at which the board requested him to produce income tax returns for his mother and himself.
Two months later, on July 14, 1967, the board, not receiving Ponto's income tax returns, decided again "that there be no change in your classification and that your orders stand." On August 11, the board reached the same conclusion after considering W-2 forms Ponto submitted for himself and his mother.
On September 18, 1967, the defendant was ordered to report for induction, but refused to submit. In March, 1968, the United States Attorney's office, in a letter to the Deputy State Director of the Selective Service System of Illinois, indicated that it would not prosecute Ponto. In May, 1969, however, the defendant was indicted.
Prior to hearings before the district judge, counsel for the defendant filed a motion with the court entitled "Motion to dismiss the indictment or for a directed judgment of acquittal." In the motion, counsel called attention to two letters he found in the Selective Service file:
a. A letter from the United States Attorney to the Deputy State Director of the Selective Service System, dated March 18, 1968, recommending that the outstanding order for induction of defendant be cancelled and that his classification be reopened (Exhibit A).
b. A letter from the United States Attorney to the Chief of the Administrative Regulations Section, Criminal Division, Department of Justice, dated October 8, 1968, stating that the United States Attorney's office was of the opinion that a prima facie case for a hardship deferment had been made by defendant and that denial of the III-A classification by the Local Board was in error (Exhibit B).
Following this recitation, counsel stated in the written motion:
One can conclude from these letters that the United States Attorney concurs in the legal correctness of the defendant's plea of not guilty. To put the defendant to the anxiety of a trial and to consume the court's time in litigating an issue upon which the parties agree is the height of folly.
Wherefore, the defendant moves for a dismissal of the indictment or, in the alternative, for a directed judgment of acquittal.
Hearings were conducted on three occasions before the district judge in which counsel for both sides argued the defendant's pending motion. Defendant was not present at any of the hearings. On the first day, the judge stated that he denied the defendant's motion without prejudice. Following this, counsel and the judge discussed the possibility of the defendant voluntarily agreeing to induction. The case was continued for a few days in order for defense counsel to inquire into this possibility.
On the second hearing date, a suggestion was made by the judge that the United States Attorney review the Selective Service file to determine whether the board had properly processed Ponto's claim for re-classification. The United States Attorney also ...