United States v. Daniel Edward Fix

The defendant, Fix, was indicted by a Federal Grand Jury for the wilful refusal to submit to induction into the armed forces of the United States. He pleaded not guilty. His case was calendared for a pre-trial conference before a federal district judge. The defendant’s counsel had previously filed a motion to dismiss the indictment, and he argued, at the pre-trial conference, in support of that motion. Government counsel were present at the conference. The court admitted in evidence a certified copy of the defendant’s selective service file as an exhibit in support of the defendant’s motion to dismiss the indictment. The Court, after reviewing the defendant’s selective service file indicated an inclination to dismiss the indictment on the authority of Miller v. United States, 388 F.2d 973 (CA 9, 1967). The Government had filed no written opposition to the defendant’s previously filed motion to dismiss. It presented no response, on the merits, to the defendant’s oral argument to the trial court. It requested no delay for the purpose of filing a brief in opposition. The Court granted the defendant’s motion to dismiss the indictment.

This court is now presented with an appeal from a…