Opinion
No. 74-1069.
October 1, 1974.
Appeal from the District Court for the District of Minnesota.
ORDER DENYING PETITION FOR REHEARINGIn a petition for rehearing the Government has called the court's attention to 50 U.S.C. App. § 465(a) (1970). The section provides:
(a) Every person shall be deemed to have notice of the requirements of this title upon publication by the President of a proclamation or other public notice fixing a time for any registration under section 3 [50 U.S.C. App. § 453].
Seven proclamations, beginning with Proclamation No. 2799, July 20, 1948, 13 Fed. Reg. 4173, 62 Stat. 1531, have been issued by the President pursuant to this section.
The Government asserts that by operation of this section of the Selective Service Act it was relieved of the burden of proving that defendant knowingly failed to register under 50 U.S.C. App. § 462(a). We need not decide the correctness of this interpretation, for, in point of fact, the Government tried its case and briefed the appeal without in any way relying upon this section of the statute. It can not now, after failing to prevail on its original theories, invoke an entirely new theory in support of conviction.
Had the Government proceeded to trial in reliance on this section, the defendant may very well have made a different election in the presentation of his defense, choosing instead, for example, to take the stand. Moreover, had the Government raised this section on appeal, the defendant could have prepared a reply for the court's consideration. As it is, the petition has all the appearances of an afterthought.
Because the Government's resort to 50 U.S.C. App. § 465(a) is not timely, we have no occasion to consider its application to the conviction before us. See Carr v. FTC, 302 F.2d 688, 691-692 (1st Cir. 1962). Accordingly, the petition is denied.
ROSS and STEPHENSON, Circuit Judges would grant a rehearing en banc.