(dissenting).
The majority hold that despite Figu-rell’s failure to keep the local board informed of a fact which might have affected his draft status, 50 U.S.C. App. § 462(a), his conviction was infirm because there was insufficient proof that he “wilfully and knowingly” violated the law. I disagree.
Where the concept of “wilfully and knowingly” becomes central to the litigation, the inconsistency of the relevant case law becomes manifest. Reference to semantic explanations is rarely of great assistance. Often, recourse is made to legislative history for direction, but as regards the specific portion of the Selective Service Act before us, there is no help there.
In an attempt to bring some order out of the chaotic state of statutory and case law, the Commission for the Reform of the Criminal Law has proposed a new codification of the degrees of criminal culpability.1 Section 302 of the Proposed New Federal Criminal Code2 would place “intentionally” on the highest rung of culpability; and then, in decreasing order, “knowingly,” “recklessly,” and “negligently.” The Commissioners suggest: “A person engages in conduct . . . (e) ‘willfully’ if he engages in the conduct intentionally, knowingly, or recklessly.” So construed, the proposed code seems to accept the language in United States v. Murdock, 290 U.S. 389, 394-395, 54 S.Ct. 223, 226, 78 L.Ed. 531 (1933): “The word [‘willfully’] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. Aid in arriving at the meaning of the word ‘willfully’ may be afforded by the context in which it is used. . . .” See also, United States v. Vitiello, 363 F.2d 240, 243 (3d Cir. 1963).
Thus, the Code would suggest that what is critical for our analysis is not the equivocal “willfully” ; rather we must concentrate on “knowingly.”3 Its *1088general meaning is associated with conduct which is voluntary, and not inadvertent or accidental.
In any event, this elemental emphasis becomes important so there will be no unnecessary confusion between the statutory standard of “knowingly” and the expression “knowledge” which, regrettably, has crept into the cases.
I do not construe the majority opinion to suggest, nor do I understand this court to have ever held, that in a criminal prosecution under the Selective Service Act, the government must prove that the defendant had actual knowledge of the allegedly violated statute or regulation. Such an interpretation would run counter to orthodox traditions associated with prosecutions of those cases in which it is not necessary to prove specific intent.
In United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971), the Court had before it a conviction based on an information that the defendant “ ‘did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C.F.R. 173.427.’ ” “The sole and narrow question [was] whether ‘knowledge’ of the regulation is also required,” and, holding that such was not required, the Court, speaking through Justice Douglas, said:
The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of [this legislative history] we decline to attribute to Congress the inaccurate view that that Act requires proof of knowledge of the law, as well as the facts, and that it intended to endorse that interpretation by retaining the word “knowingly.” We conclude that the meager legislative history . . . makes unwarranted the conclusion that Congress abandoned the general rule and required knowledge of both the facts and the pertinent law before a criminal conviction could be sustained under this Act.
Thus, in United States v. Rabb, 394 F.2d 230, 233 (3d Cir. 1968), when we said, “The Government must establish knowledge of the legal obligation and voluntary action' or omission with the purpose of failing to perform such obligation,” it was not meant that the government prove actual knowledge by the defendant of the allegedly violated regulation. The court’s statement was nothing more than re-assertation that prosecutions under the Selective Service Act required proof of the necessary mens rea. Any other interpretation would run counter to Justice Douglas’ re-af-firmance in International Minerals of the principle that ignorance of the law is no defense.4
But the problem does not disappear when we conclude that “knowingly” relates only to mens rea, because critical to a determination of a deliberate fail*1089ure to act must be proof that the failure was not mere inadvertence. Deliberately failing to make the necessary report to the local board is the conduct proscribed by the regulation; an inadvertent failure to do so is not a criminal offense. And it is in the proof that the conduct was deliberate, and therefore “knowing,” that the government is called upon to fashion some relationship between the provisions of the regulation and the defendant, by direct or circumstantial evidence.
In International Minerals, the Court gave expression to a test which I believe has relevancy here: “[where] the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.” 402 U.S. at 565, 91 S.Ct. at 1701. To paraphrase this test for Selective Service deferment cases, we might ask: Are the specifics of the registrant’s life-style which supported his deferment classification, such that there was a likelihood that it would be subject to regulation and control? If so, was it reasonable to presume that the registrant was aware of the existence of the regulation ?
It seems to me that the degree of certainty with which the government must establish the requisite intent to obtain a selective service conviction logically varies with the specific offense. It also seems to me that a prosecution for failure to register for the draft would be placed at one extreme. There is widespread knowledge of this requirement within the general public, and especially within the affected age groups. There the government would not vbe required to devote much evidentiary attention to proving mens rea. Similar examples might be: where one had received a student deferment, and was no longer in school; or had received a conscientious objector classification, and then become engaged in selling napalm or rifles to military organizations; or, having been deferred as a minister of religion, changed his occupation to printing for commercial purposes atheistic literature. A prosecution for failing to respect the technical niceties required for efficient administration of the system, however, presents other considerations. For example, a prosecution for failure to keep the local board advised of one’s correct address, without more, and without evidence of any prejudice to the system, would naturally focus on the element of scienter. This prosecution falls somewhere between the extremes.
Presumably, Figured would have been drafted had he not received III-A status in 1963. 32 C.F.R. § 1622.30 provides:
Class III-A: Registrant With a Child or Children; and Registrant Deferred by Reason of Extreme Hardship to Dependents. — (a) In Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home. .
Implicit in the deferment for dependency status under § 1622.30(a) is a Congressional expression of the public interest in preserving some type of family unit beyond mere fatherhood. The Act authorizes deferment of those “in a status with respect to persons (other than wives alone, except in cases of extreme hardship) dependent upon them for support which renders their deferment advisable.” 50 U.S.C. App. § 456(h) (1). Dependency means more than purely financial support. Otherwise, there would be no deferment for this reason; there would simply be increased financial allotments for such servicemen. Cf., 32 C.F.R. § 1622.30(d). A deferment on family relationship seems to be based on a salutary policy of keeping the family unit intact, with the father living with and supporting the dependent children. Failure of the father to participate in the family unit would seem to strike at the very foundation of a dependency deferment under § 1622.30(a).
It is against this backdrop that we meet the question whether under all the evidence there were sufficient circumstances to permit a fact-finder to con-*1090elude that Figurell deliberately, not inadvertently, failed to report his change in his III-A dependency status to his local board. 32 C.F.R. § 1625.1(b) requires the registrant to report “any change in his occupation, marital, military, or dependency status.” Section 1622.30(a) requires a “bona fide family relationship in their home.” Our function as a reviewing court is not to substitute what finding we would have made had we been the fact-finder. Rather our responsibility is limited to determining whether there is a minimum quantity of evidence to satisfy the requirement of proof of mens rea.
The record discloses that on January 12, 1967, Figurell, then in Class III-A, failed to disclose that he and his family were still living together. Previously he had affirmatively reported: on July 22, 1963, that he had been married on June 18, 1963; one day later, on July 23, 1963, he reported that his wife was pregnant; on April 8, 1964, that his wife had miscarried in November, 1963; on December 3, 1964, that his wife was again pregnant; on January 8, 1965, that a child had been born on December 31, 1964; on January 11, 1966, that a second child had been born on December 7, 1965.
Additionally, in May, 1967, he presented to the board a letter, stating that he and his family were living together when, in fact, they had not been living together since January. Previously on February 9, 1967, his wife had reported to the board that he had left the family abode. Six days thereafter his classification was changed from III-A to I-A.
Assuming, without conceding, that only the activities prior to January 17, 1967, constitute relevant circumstantial evidence bearing on the mens rea issue, the question which divides this court is whether these circumstances are sufficient to support a finding that Figurell, classified for four years as a III-A, knew that his home and hearth relationship was subject to Selective Service regulations. As set forth in International Minerals, was the “probability of regulation so great” for the fact-finder to presume him to be aware of it?
I say yes. The majority says no. And, although what divides this court is strictly a judgment call, I am suggesting that' implicit in the majority’s view must be a threshold finding that Figurell at no time knew the wording of § 1622.-30(a): “Into Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home. . ” [Emphasis supplied.] I find to be beyond the realities of probable human experience the suggestion that a draft registrant who has successfully applied for and has enjoyed the benefits of a deferment for three and a half years does not know nor has been told the qualifications of that deferment.
Moreover, as here, where there is a history that the registrant was classified III-A in September, 1963, there has to be some rational explanation for subsequent reports to the local board regarding the family unit. On four separate occasions subsequent to his classification, he reported the pregnancies of his wife, the miscarriage, and the births of his children. Such conduct is consistent with knowledge of the regulation; it is totally inconsistent with purely volunteered action.
Reiterating that our function is not to make a finding of the necessary mens rea, but to determine whether adequate circumstantial evidence was present to support the trial court’s finding, I am satisfied there was sufficient, supportive evidence.
I would affirm the conviction.
. The “mental element” of Federal crimes is specified in the definitions of the crimes, which definitions are frequently modified, if not indeed distorted, in judicial decisions. If one looks to the statutes alone, the specifications of the mental states form a staggering array: [list of statutes omitted]. Unsurprisingly, the courts have been unable to find substantive correlates for all these varied descriptions of mental states than the statutory language. Not only does the statutory language not reflect accurately or consistently what are the mental elements of the various crimes; there is no discernible pattern or consistent rationale which explains why one crime is defined or understood to require one mental state and another crime another mental state or indeed no mental state at all. Working Papers, National Commission on Reform of Federal Criminal Law, Yol. I, pp. 119-120.
. § 302 Requirements of Culpability.
(1) Kinds of Culpability. A person engages in conduct:
(a) “intentionally” if, when he engages in the conduct, it is his purpose to do so;
(b) “knowingly” if, when he engages in the conduct, he knows or has a firm belief unaccompanied by substantial doubt that he is doing so, whether or not it is his purpose to do so;
(c) “recklessly” if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct, . . . ;
(d) “negligently” if he engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct; and
(e) “willfully” if he engages in the conduct intentionally, knowingly, or recklessly.
. Widely used definitions of “willfully” and “knowingly” in the sense of omitting to perform an act are set forth in Devitt and Blackmar, Federal Jury Practice and Instructions, § 16.08: “ ‘Knowingly1 — To Omit. An omission or a failure to act is ‘knowingly’ done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.” § 16.14: ‘“Willfully' — To Omit. An omission or failure to act is ‘willfully’ done, if done voluntarily and intention*1088ally, and with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.”
. The experience of the Supreme Court with prosecutions of malum prohibitum regulations has not been free from difficulties. See, e. g., Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957), vacated a conviction based on the failure of convicted felons to register under a Los Angeles municipal code. The Court held that the mere failure to register was quite “unlike the corn-mission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” In United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48 (1943), the Court approved the imposition of a penalty on a corporate officer whose firm shipped adulterated and misbranded drugs, “though consciousness of wrongdoing be totally wanting.” In United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (possession of hand grenades), the Court said “The present case is [not] in the category . of Lambert . . . but is closer to Dotterweich.”