Fairchild, Pell and Sprecher, Circuit Judges. Pell, Circuit Judge (dissenting).
The defendant, Wilfred Henry Sorrell, was charged in a single-count indictment with wilfully failing and refusing to comply with an order to report for induction into the Armed Forces "in that he refused to comply with instructions, rules and procedures prescribed for registrant processing," in violation of 50 U.S.C. App. § 462. Trial was held before the court and defendant was found guilty on September 22, 1971. Numerous alleged errors are raised in this appeal, two of which will be discussed. We conclude that Sorrell's conviction must be reversed.
Defendant argues that the indictment under which he was convicted was so vague that it failed to give him reasonable notice of the acts constituting the offense for which he was charged. The indictment was framed in language similar to that contained in the statute, which provides in part that "any person . . . who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, . . . or rules, regulations, or directions made pursuant to this title . . ." shall be guilty of an offense punishable by imprisonment for not more than five years and a maximum fine of $10,000. 50 U.S.C. App. § 462. Specifically, the indictment charged that the defendant, on or about October 9, 1969, in the city of Milwaukee,
"did knowingly, wilfully and unlawfully fail to perform a duty resting upon him under the Military Selective Service Act of 1967 and the Regulations in that, having been classified as I-A, he did wilfully fail and refuse to comply with an Order to Report for Induction in that he refused to comply with instructions, rules and procedures prescribed for registrant processing at the Armed Forces Examining and Entrance Station, 341 North Milwaukee Street, Milwaukee, Wisconsin, as required by SSS Form No. 252, Order To Report For Induction; all in violation of Section 462, Title 50 Appendix, United States Code of Laws."
Sorrell insists that it is impossible to determine from the indictment what particular instructions, rules or procedures he was charged with violating. The rules and regulations for registrant processing at the Armed Forces Examining and Entrance Station, found in Army Regulation, AR 601-270, are lengthy and detailed. Rule 7(c), Fed. Rules Crim.Proc., requires that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Although "the language of the statute may be used in the general description of an offense, . . . it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." Russell v. United States, 369 U.S. 749, 765, 82 S. Ct. 1038, 1048, 8 L. Ed. 2d 240 (1962); United States v. Hess, 124 U.S. 483, 487, 8 S. Ct. 571, 31 L. Ed. 516 (1888).
A similar indictment was held in United States v. Farinas, 299 F. Supp. 852, 854 (S.D.N.Y.1969), to be fatally defective, the court finding that the indictment fell "below the minimum standard of specificity in respect of the requirement of reasonable notice." The district judge in the present case attempted to distinguish Farinas on the ground that the indictment under attack here charged the defendant not only with refusing to perform some unspecified duty but also with wilfully failing to comply with an order to report for induction in so refusing to comply with instructions, rules and procedures at the Examining Station. We fail to see any distinction. The indictment did not charge the defendant with failing to report for induction; it charged him with failing to obey rules and regulations at the examining station. We conclude that the indictment failed to apprise the defendant of the charges against which he had to defend with reasonable certainty. Defendant's motion to dismiss the indictment should therefore have been granted.
We believe that Sorrell's conviction would have to be reversed, even in the absence of the faulty indictment, on grounds that the government presented insufficient evidence of guilt of the offense charged. The evidence introduced by the government consisted in Sorrell's Selective Service File and the testimony of Thomas N. Key, Assistant Processing Officer at the Milwaukee Examining Station, to which the defendant reported for induction.
Items 30 and 31 of the Selective Service File are, respectively, a form entitled "Report of Medical History" and a form entitled "Report of Medical Examination." Each form bears the type-written date April 17, 1969. On the back of the first form is the written statement "refuses to give medical history," along with the signature of a Marc Erickson. The same signature appears on the second form, accompanying the statement that the defendant refuses to submit to a physical examination. This form bears a second notation, "Refuses to have A & P," together with what appear to be the initials "TR." There is also a stamp stating that no disqualifying defects or communicable diseases were noted on October 9, 1969. The government did not call Captain Erickson as a witness.
The only additional documentary evidence submitted on this issue was a letter from Lieutenant Key to the Dane County Transfer Board, Selective Service System, Madison, Wisconsin, dated October 10, 1969, stating that the defendant on October 9, 1969, "refused to comply with instructions, rules and procedures prescribed for registrant processing; individual refused to take part in all processing."
It is readily apparent that, with the possible exception of the fact that Lieutenant Key testified at the trial, the evidence in this case is as inadequate as the documentary evidence held insufficient in our recent decision in United States v. Webb, 467 F.2d 1041 (7th Cir. 1972). The evidence in that case consisted in a letter sent to the United States Attorney stating that the named defendant had refused to submit to induction. The documentary evidence in the instant case consists in a letter written by Lieutenant Key stating that the defendant had refused to follow all the rules necessary for processing, plus notations on two medical forms, all but one of which bear a date different from the October 9, 1969, date on which the alleged violations occurred. The only notation bearing the appropriate date states that no physical defects were observed and bears no signature at all, unless the letters "TR" were so intended. There was, therefore, simply no reliable evidence of sufficient probative value upon which to base Sorrell's conviction.
The government argues, however, that this case is distinguishable from Webb because the writer of the letter stating that the defendant had refused to comply with registration procedures, Lieutenant Key, testified at trial. The record does not support this contention. Key testified that while a letter such as the one mailed under his name would have been sent if a registrant "refused to cooperate with the procedure set forth by the Induction Center," he had no recollection of whether he had ever seen the defendant before and had no personal knowledge of whether the infractions set forth in the letter had in fact occurred.
We conclude that Sorrell's conviction was based on insufficient probative evidence and that the indictment under which he was charged was so vague that it failed to reasonably apprise him of ...