MEANOR, District Judge.
This matter comes before the court on defendant's motion to dismiss the indictment. Briefs and affidavits were submitted by both sides. Oral argument was heard on November 7, 1975. Following the argument, the court reserved decision.
By an indictment filed on February 1, 1967, the defendant was charged with a violation of 50 U.S.C. App. § 462(a), failure to report for induction. Defendant moves to dismiss the indictment on the ground that the Government is estopped from prosecuting him because of representations made in a list of draft cases sent to Senator Edward Kennedy on January 24, 1975 ("the Kennedy list"). This case presents a novel and difficult issue which does not appear to have been ruled upon by any other District Court. A full exposition of the facts would seem to be appropriate.
In July 1966, defendant left the United States and entered Canada. By a letter received on July 21, 1966, defendant informed his local draft board
that he had become a landed immigrant in Canada. He stated that he was working for a Canadian Auto Repairman's License Class I-A and that he intended to make Canada his permanent home.
A notice ordering defendant to report for induction was issued October 10, 1966. Defendant again wrote his local board on October 19, 1966 reiterating that he intended to make Canada his permanent home. On February 1, 1967, he was indicted for failure to report for induction.
Defendant wrote the United States Attorney for this district on March 9, 1967. He restated his intent to become a resident of Canada and to seek education there. He explained that he felt "obligated to Canadian law, and not to the laws of the United States." He asserted that his reason for emigration was not to avoid military service.
In his March 1967 letter, defendant noted that he had been received in Canada as a potential citizen. In December 1973, defendant became a naturalized Canadian citizen. Defendant was arrested June 9, 1975 upon attempting to enter the United States.
On September 17, 1974, President Ford issued a proclamation announcing his "clemency" program. 39 F.R. 33293, 1974 U.S.Code Cong. & Admin.News 8216. The proclamation stated that "this program will not apply to an individual who is precluded from re-entering the United States under 8 U.S.C. § 1182(a) (22) or other law."
On November 13, 1974, the Attorney General directed all United States Attorneys to review their files of pending draft evader cases and to dismiss all of those cases that lacked merit.
On January 24, 1975, Deputy Attorney General Laurence H. Silberman sent Senator Edward M. Kennedy three copies of a list which was said to include "the names and selective service numbers, where available, of all individuals who are presently charged by indictment, information or complaint, and those who are under investigation for draft offenses during the Vietnam era, where the case is believed to have prosecutive merit." With an exception not here relevant, the list was said to be "considered final by the Department of Justice, and those whose names appear may consider themselves eligible for the Clemency Program."
The list was broken down by Judicial District. The list for this district is included in the affidavit of Jonathan Marsh, Esq. which accompanied the notice of motion. The list covering indicted individuals is headed:
Indicted Draft Evaders Whose Cases Retain Prosecutive Merit and Are Eligible for the Presidential Clemency Program.
Defendant's name was not on that list.
On January 29, 1975, Mr. Silberman sent a Telex to all United States Attorneys containing the letter to Senator Kennedy. This Telex made mention of a submission of names by the United States Attorneys to the Department of Justice of "all persons whose cases contain prosecutive merit and are eligible for the President's clemency program." (Emphasis added.) It went on to state:
In those cases where during the review it was determined that the draft evader, though no longer liable for his violation of the Military Selective Service Act, has renounced his American Citizenship or become a foreign national in accordance with Title 8 U.S.C. § 1401, or was an alien, his name should be forwarded to the Immigration and Naturalization Service in order that the provisions of Title 8 U.S.C. § 1182(a)(22) may be invoked. . . .