United States of America, Plaintiff-appellee, v. Lynn Roy Higgins, Defendant-appellant, 432 F.2d 924 (2d Cir. 1970)

This court on October 9, 1969, 416 F.2d 406, affirmed the judgment of conviction entered in the United States District Court for the Western District of New York against the appellant for failure to report for and submit to induction into the armed forces in violation of 50 U.S.C. App. § 462(a). Subsequently the Supreme Court of the United States granted certiorari, 398 U.S. 279, 90 S. Ct. 1729, 26 L. Ed. 2d 233 and after considering the case vacated the judgment of this court and remanded the case for further consideration in the light of Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970). In compliance therewith the judgment of this court and the mandate issued pursuant to it were vacated on June 29, 1970.

In compliance with this court's order of September 8, 1970, that the parties file further briefs in this case, counsel for the appellee advised the court that the appellant had received a punitively accelerated induction and that this case came within the purview of Gutknecht. The judgment of the District Court is therefore reversed and the case is remanded with direction that the indictment be dismissed.