UNITED STATES v. SALAS, 509 F.2d 1102 (2nd Cir. 1975)

UNITED STATES OF AMERICA, APPELLEE, v. JUAN SERGIO SALAS, APPELLANT.

No. 375, Docket 74-2007.United States Court of Appeals, Second Circuit.Argued November 6, 1974.
Decided January 10, 1975.

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Edward N. Leavy, New York City (Leavy Shaw, New York City, on the brief), for appellant.

Robert Gold, Asst. U.S. Atty., S. D. N.Y. (Paul J. Curran, U.S. Atty., S. D. N.Y., George E. Wilson and John D. Gordan, III, Asst. U.S. Attys., S. D. N.Y., on the brief), for appellee.

Appeal from the United States District Court for the Southern District of New York.

Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges.

PER CURIAM:

[1] Following a jury trial appellant Juan Sergio Salas was found guilty of refusing to submit to induction into the armed forces of the United States on December 4, 1972 in violation of 50 U.S.C. App. § 462(a).[1] On June 21, 1974, the district court denied Salas’ post-trial motions for judgment of acquittal pursuant to F.R.Crim.P. 29 and for arrest of judgment pursuant to F.R.Crim.P. 34 on the grounds that they were based on the so-called “order of call” defense and were thus untimely, citing United States v. Strayhorn, 471 F.2d 661 (2 Cir. 1972), and that in any event Salas had not been prejudiced, citing id. and United States v. Griglio, 467 F.2d 572 (1 Cir. 1972). [2] The order of call defense was described in Strayhorn as involving “contentions by a Selective Service defendant that his order for induction came out of proper sequence, or, conversely, that others who should have been called before him were not.” 471 F.2d at 662. This court went on to say that the trial courts could deem such defenses waived, in trials beginning after January 1, 1973, if they were not raised before trial through a motion for a judgment of acquittal. See 471 F.2d at 665. Salas did not claim, however, that there were other 1-A registrants in his local board with higher priorities for call than his “whose inclusion on a monthly list would have `bumped’ him off.” 471 F.2d at 664. Rather, he claimed that he was exposed to induction as of December 31, 1971, and was not called during the three months which followed, and therefore under 32 C.F.R. § 1631.6(c) and (d)(5),[2] he was entitled to be placed in a nation-wide lower priority selection group from which he would not have been drafted. This is not an “order of call” defense, and the district court was in error in holding that Salas’ post-trial motions were untimely.

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[3] The Government concedes that under 32 C.F.R. § 1622.25(a)[3]
Salas was improperly classified 2-S on June 3, 1971 because he was over 24 years of age; that he was subsequently and properly classified 1-A in November, 1971; that he remained properly classified as 1-A on December 31, 1971; and that his draft lottery number (70) had been reached during the 1971 calendar year. Consequently, after December 31, 1971, as specified in 32 C.F.R. § 1631.6(c) and (d),[4] the Board was required to place Salas in “Extended Priority Selection Group” and to issue to him an induction order by April 1, 1972, failing which the Board was required to place him in the “lower priority selection group.” The Government also concedes that the Board could not deprive appellant of the time limitation for induction under 32 C.F.R. § 1631.6(d)(5) by improperly reclassifying him 2-S in January, 1972, and that had appellant been placed in the “lower priority selection group,” he would not have been drafted. While for policy reasons of the Secretary of Defense no induction orders were issued during the first three months of 1972, this did not constitute, under 32 C.F.R. § 1631.6(d)(5), an “inability of the local board to act” and thereby render the strict time limitations inapplicable. Cf. United States v. Born, 338 F.Supp. 444 (W.D.Mich. 1972). [4] The Government argues that, in any event, appellant has failed to show that he was prejudiced by the Board’s errors and thus cannot now claim that he should be acquitted because the November 1, 1972 induction order was invalid. This argument is fallacious. He suffered the very kind of prejudice 32 C.F.R. § 1631.6(d)(2) and (5) were meant to preclude by establishing a precisely defined and limited time during which a registrant, classified 1-A, could be drafted. In conjunction with the random selection

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plan, they were designed to eliminate the frustrations confronting a large proportion of the vulnerable generation because the uncertainties of each one’s status made futile any plans for the future.

[5] The judgment of conviction is reversed and the case is remanded to the district court for the entry of a judgment of acquittal.

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