(dissenting).
Finding myself in disagreement with the result reached by the majority, as well as the route taken to that destination, I respectfully dissent. I would affirm the judgment of the district court.
In stating my dissent, I address myself only to the two points relied upon in the majority opinion. I am not unmindful of the multifariousness of the issues raised on this appeal by counsel for the defendant. This situation existed at the trial, prompting the district judge to observe at the time of announcing his decision that dispensing with briefs should not suggest that the attorneys had “not been inventive and assiduous in their examination of this record, in presenting various claimed flaws in the government’s case. . . .” The shotgun remained fully loaded on this appeal with an even do2ien issue-reasons being advanced for reversal. For the present purposes, it is sufficient to say that I have examined the other ten issues raised and find them to be without merit.
A proper test for determining the sufficiency of the indictment is set forth, in my opinion, in United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92 (1953), in which the Court stated:
“An indictment is required to set forth the elements of the offense sought to be charged.
‘The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in ease any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” Cochran and Sayre v. United States, 157 U.S. 286, 290, [15 S.Ct. 628, 630, 39 L.Ed. 704]; *1058Rosen v. United States, 161 U.S. 29, 34, [16 S.Ct. 434, 40 L.Ed. 606]. Hagner v. United States, 285 U.S. 427, 431, [52 S.Ct. 417, 419, 76 L. Ed. 861].
“The Federal Rules of Criminal Procedure were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. Rule 2, F.R.Crim. Proc. Rule 7(c) provides in pertinent part as follows:
‘The indictment . ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. ... It need not contain . . . any other matter not necessary to such statement. . . .' ”
The indictment under consideration did not give a minute-by-minute, blow-by-blow accounting of what Sorrell did or did not do while at the induction station to which he had been ordered to report for military service by his selective service board pursuant to his having been classified 1-A. Such is not required. In my opinion, Sorrell was more than sufficiently apprised of what he must be prepared to meet in his defense. He was notified of the charges that (a) he, on a specific day, knowingly, willfully and unlawfully failed to perform a duty under a specified United States statute and its Regulations; (b) his classification was 1-A; and (c) specifically he failed and refused to report for induction “in that” he refused to comply with the Examining and Entrance Station prescribed instructions, rules and procedures for registrant processing. These rules, as is pointed out in the majority opinion, are found in Army Regulation AR 601-270. They, therefore, are not guidelines developed or imposed at the whim or caprice of an examining officer or even of a particular station. While it is true, as the majority opinion also states, that these rules are lengthy and detailed, most of the rules pertain to the duties. placed upon the military personnel. I find rather ridiculous the argument of the defendant that the defendant was in effect charged with violating all of the rules, including those pertaining to military personnel. I cannot conceive that counsel in their vigorous presentation of Sorrell’s case were concerned that he might have to meet a charge of violating a procedural duty placed solely on military personnel. He could scarcely fail to perform a duty which did not legally or otherwise rest upon him. Cf. Yates v. United States, 404 F.2d 462, 464 (1st Cir. 1968), cert. denied, 395 U.S. 925, 89 S.Ct. 1781, 23 L.Ed.2d 242 (1969).
After narrowing the fair meaning of the indictment to those duties prescribed by the rules as resting upon an inductee in process, it appears to me that Sorrell could not but have been aware of that of which he was charged with noncompliance, particularly since the noncompliance was cast squarely in the context of refusing to report for induction. It is for this reason that Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L. Ed.2d 240 (1962), upon which defendant relies, is not applicable here. As pointed out by the First Circuit in Yates, supra at 464, in which a selective service indictment was involved and in which the defendant also relied on Russell, the proposition in Russell that, in addition to setting out the elements of the offense charged, the indictment must allege specifics, must be read in relation to the indictment’s primary goal —that the defendant be apprised with reasonable certainty of the nature of the charge against him. As the Yates court further pointed out, the proposition must also be read in the light of the facts of Russell, a case concerning refusal to answer questions of a congressional committee, where the “lack of explicitness went to the very core of a very complex factual situation. . . . ” 404 F.2d at 464. Just as the Yates court found the case before it not of the Russell type, I think this court should do likewise in the present case.
The majority opinion, as does the Sor-rell brief, relies heavily on the case of *1059United States v. Farinas, 299 F.Supp. 852 (S.D.N.Y.1969). Aside from the fact that Farinas is a non-appealed district court case, I find it no real authority for the case under consideration. The crux of the Farinas decision was that the indictment did not meet the minimum standard of specificity because it charged the defendant with refusal to obey “orders” which were not limited to orders related to the induction process. Since the violation charged in the case before us is equated only with rules applicable to an inductee, I find no persuasive authority in Farinas. Here, paraphrasing the words of the district court in Farinas and contrasted to that case, there was no “failure to specify the nature of the [rules] allegedly disobeyed” as the nature of those rules was definitively circumscribed by Army Regulations. In Farinas, an oral order by an examining soldier having nothing to do with the induction process could fairly be said to be within the “orders” involved in that ease.
With regard to the second point, while it can scarcely be claimed that this was a case of a multitude of bishops swearing that Sorrell refused to comply with every rule of the induction station, I cannot agree that a probative case was not made. The defendant’s selective service file introduced into evidence contained a clear statement in a letter that Sorrell “refused to take part in all processing.” While United States v. Webb, 467 F.2d 1041 (7th Cir. 1972), casts doubt on whether this letter standing alone would be sufficient for conviction, it does not stand alone. The signer of the letter testified.
I cannot agree with the majority analysis of his testimony. As I read it, and I do not feel it is a semantical distinction, Lieutenant Key at first had no witness stand recollection, as opposed to “no personal knowledge,” of whether the infractions in the letter had in fact occurred. Since he saw some 240 inductees a day, it is not surprising that he had no initial recollection more than two years later of the defendant or the infractions stated in the letter signed by him. This, of course, is not saying that he did not on the day he signed the letter. Nor, in the climate of today, is it particularly surprising that he would not remember a particular inductee who declined to complete the process.
Specifically, the testimony of Key. reflects the following: His recollection was refreshed as to the events described therein and the letter was “written the day after Mr. Sorrell was in the Induction Station, sent back to the Local Draft Board.” He made that letter during the performance of his “ordinary duties as Assistant Processing Officer.” “This letter would have been sent in the event the registrant had come into the Induction Center for processing physical-mental examination and had refused to cooperate with the procedure set forth by the Induction Center.” Key then testified to what the further procedure would be, which was that one of three officers would talk to the registrant and advise him of the possible consequences.
On cross-examination, Key testified that his memory was refreshed as to sending the letter by looking at it. Also, the following appears in cross-examination :
“Q All right. Now, to the best of your recollection, from refreshing your recollection from document number 16 [the letter], the Defendant did report to the Induction Station in Milwaukee; is that right? And as ordered in the — with the Selective Service document 253?
“A That’s correct.”
Finally, we find this in Key’s redirect examination:
“Q Was it your testimony on cross examination that you would not have written that letter if the facts described therein were not true?
“A That is correct.”
*1060It is not surprising in view of cases such as this one that the induction centers have resorted to the “one step forward” procedure. It seems they might be well advised also to utilize a movie camera equipped with sound equipment.
The testimony of Lieutenant Key indicates to me the applicability of one of the rules of the proposed Federal Rules of Evidence, transmitted by the Supreme Court to the United States Congress on November 20, 1972. 56 F.R.D. 183.
Rule 406 (56 F.R.D. 223) reads as follows
“Rule U06. Habit; Routine Practice
“(a) Admissibility. — Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
“(b) Method of proof. — Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.”
In the present case, there was uncon-tradicted evidence of a “routine practice of an organization” and, “regardless of the presence of eyewitnesses,” although here it appears that the eyewitness did have his recollection refreshed, the evidence would appear to be “relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
We are living in a country with more than 200 million other persons. Hopefully, the characteristic of independent individuality which gave strength to the nation will not be lost. Nevertheless, the process of living and communicating with each other in ever greater numbers has tended to blur personal relationships. The computerized number has replaced the name.
The above quoted Rule 406 exemplifies, as I think it should, a healthy and necessary adaptation of judicial procedures to the complexities of modern society. That adaptation should not be such as to thwart justice to any individual but, with that restriction, it should provide procedures in keeping with the way people conduct their affairs.
Therefore, although the Federal Rules of Evidence will not become effective in any event until July 1, 1973, the present situation is one which I think calls for the application of the above-quoted rule.
There would be therefore in my opinion more than sufficient evidence to support a conviction under the indictment in question.
In sum, the Government proved sufficiently, even though not overabundantly, that Sorrell did go to the induction station in Milwaukee on October 9, 1969, and did there refuse to engage in any of the rule-prescribed procedures for inductees. Unfortunately, the result which has been reached here is that another individual who has willfully refused to enter military service although ordered to do so by his selective service board is spared the penalties of the law which he has flouted.
For the reasons hereinbefore set out, I would affirm the judgment of the district court.