The opinion
GIBBONS, Circuit Judge
(dissenting).
The appellant was indicted by a grand jury for failing to report for induction into the armed forces on December 1, 1970, in violation of 50 U.S.C.App. § 462 (a). Since § 462(a) lists a whole series of possible offenses, a grand jury indictment charging that the defendant violated § 462(a), without more, obviously would be so vague that the defendant would not be informed of the charge he was to defend against. Thus, at a minimum, the indictment must specify what duty the defendant is alleged to have violated. See Rule 7(c), Fed.R.Crim.P. Here it does not refer to any specific order to report for induction, but it does refer to the registrant’s failure to report on December 1, 1970. We take this to mean that the grand jury indicted appellant for his failure to comply with the November 20, 1970 letter from the board directing him to report on that date. Indeed at the trial in the district court the Government seems to have proceeded on the theory that the November 20, 1970 letter was a valid induction order.
*714 On- appeal, however, the Government concedes that the November 20 letter alone would not have met the requirements for a valid induction order. 32 C.F.R. § 1632.1 (1971). It now relies on the August 13, 1970 induction order (the second induction order) which directed appellant to report on September 1, 1970. The Government’s position (which the majority does not expressly espouse) is that appellant was under a continuing duty to report for induction from September 1, 1970, until the time of his indictment. See 32 C.F.R. § 1642 .-15 (1971). On this theory, apparently, the appellant must have committed a separate criminal offense each day after September 1, 1970, that he failed to submit to induction. Since December 1, 1970, was one such day, appellant can be convicted of the offense charged in the indictment. There are several difficulties with that approach to an affirmance of a criminal conviction.
The first is that by any fair reading of the indictment it charges a failure to report pursuant to the November 20, 1970 letter, not a failure to report pursuant to a continuing duty arising by virtue of the August 13 induction order. The court of appeals may not substitute a new and different indictment for that handed down by the grand jury. U.S. Const, amend. V, § 1; Stirone v. United States, 361 U.S. 212 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960).
The second difficulty is that the appellate court cannot affirm on a reconstruction of the indictment quite different from that considered by the trier of facts in the district court. We do not know what the record would have been, or what the district court’s decision would have been, had the case been tried on the Government’s theory, adopted on appeal, of a continuing duty from September 1, 1970.
Third, even if we were free to affirm a criminal conviction on a factual and legal basis other than that considered by the trier of facts below, and even if we were free to construe the indictment as charging a continuing offense of failing to report for induction pursuant to the August 13, 1970 induction order, that construction raises a fundamental issue as to its legal sufficiency. In Toussie v. United States, 397 U.S. 112 , 90 S.Ct. 858 , 25 L.Ed.2d 156 (1970), the Supreme Court considered whether 50 U.S.C.App. § 462(a), properly construed, created a continuing offense. The Court said:
“Unlike other instances in which this Court has held that a particular statute describes a continuing offense, there is no language in this Act that clearly contemplates a prolonged course of conduct. While it is true that the regulation does in explicit terms refer to registration as a continuing duty, we cannot give it the effect of making this criminal offense a continuing one. Since such offenses are not to be implied except in limited circumstances, and since questions of limitations are fundamentally matters of legislative not administrative decision, we think this regulation should not be relied upon effectively to stretch a five-year statute of limitations into a 13-year one, unless the statute itself, apart from the regulation, justifies that conclusion.” 397 U.S. at 120-121 , 90 S.Ct. at 863 (footnotes omitted).
Toussie controls here, for although it considered the continuing duty to register imposed in 32 C.F.R. § 1611.7 (c), rather than the continuing duty to report for induction imposed in 32 C.F.R. § 1642.15 , the statute which it construed is identically applicable to each regulation imposing a continuing duty. See United States v. Figurell, 462 F.2d 1080, 1082-1083, n. 5 (3d Cir. 1972). The result of the Toussie case was considered by Congress when it enacted the 1971 amendments to the Military Selective Service Act of 1967, Pub.L. No. 92-129 (Sept. 28, 1971). The Senate Report states:
“The House version included a provision recommended by the Administration by adding a new subsection 5(d) which will overcome the result *715 of Toussie v. United States, [ 397 U.S. 112 ,] 90 S.Ct. 858 [, 25 L.Ed.2d 156 ] (1970). That opinion interpreted the Act to limit the time for prosecuting men who fail to register to five years and five days after a man’s 18th birthday. The Committee language will allow the prosecution of a nonregistrant up to five years after his 26th birthday. It does not change the statute of limitations for any other violation of Selective Service law.” 2 U.S.Code Cong. & Ad.News 1455 (92d Cong., 1st Sess.) (1971).
The amendment referred to, which now appears at 50 U.S.C.App. § 462(d) (Supp.1972), is inapplicable to the appellant both by its terms (it deals only with failure to register) and because it was enacted long after the events with which appellant was charged. But the amendment is significant nevertheless, for it shows that Congress has concurred in the Supreme Court’s basic interpretation of 50 U.S.C.App. § 462(a), as not authorizing the Selective Service System, by regulation, to create continuing offenses not enacted by the legislature. 1
Indeed the continuing duty construction of the indictment, and hence of the statute, contended for by the Government, presents extremely troublesome issues. If a defendant should be indicted for failing to report on December 1, pursuant to a continuing duty, and should be acquitted, may he be reindicted, tried, and convicted, for failure to report on November 30? Appellant has been convicted for failing to report on December 1. Did he commit a separate offense on November 30, and on every day after September 1, and if so, may the grand jury indict him in separate counts for each of those offenses? I believe that we are constrained to hold that a single offense occurs when a registrant fails to obey a valid induction order. The clear implication of the majority opinion is otherwise, for it affirms a conviction on an indictment alleging a failure to report on December 1, 1970, pursuant to an order which directed the appellant to report on September 1,1970.
The majority opinion, while recognizing that Toussie v. United States, supra, prevents the explicit espousal of the Government’s position, draws a distinction between a “continuing offense” and a “continuing duty.” It purports to narrow its holding by stating:
“This opinion holds, only that where a registrant has failed to report for induction on the date set, his draft board may set a new date for his induction pursuant to the original order, and that he may be informed of the new date by a ‘letter order’ such as that used here, without the necessity of a new Form 252.”
Such an ipse dixit does not dispose of the Toussie problem however. If a registrant fails to report for induction and a letter fixing a new date is issued may the registrant, even though he reports on the new date, be indicted for having failed, in the interim, to comply with the continuing duty to report specified in 32 C.F.R. § 1632.14 ? Has the statute of limitations been running in the meantime? Does the board’s power to issue a “letter order” give it the power to lengthen the statute of limitations on the initial failure to report? Does its power to issue “letter orders” give it the power to multiply the number of occasions on which a registrant fails to report pursuant to a valid induction order, and hence the number of offenses? The Supreme Court in Toussie v. United States, supra, rejected a construction of 50 U.S. *716 C.App. § 462(a) which would have permitted the Selective Service System, by a regulation specifying a continuing duty, to enlarge the period of the statute of limitations or the number of offenses. It could have but it did not accept the distinction between continuing duties and continuing offenses which the majority purports to find authorized by the same statute.
But more to the point, neither the grand jury nor the district court believed they were dealing with the violation of a continuing duty. The offense charged in the indictment and tried in the district court was bottomed upon the assumption that the duty to report was imposed by the November 20, 1970 letter, and not by the August 13, 1970 induction order. As the majority opinion points out, there was, in addition a July 17, 1970 induction order. We have seen many Selective Service files containing more than one induction order. We are dealing with a criminal case, and it would seem that the very minimum of due process requires that the indictment refer to which of several possible induction orders gave rise to the alleged duty. By adopting a theory that the indictment actually referred to the August 13, 1970 induction order, though it referred to the date of December 1, 1970 rather than to the date of September 1, 1970, the majority purports to find a sufficient reference. But on that construction of this indictment the grand jury might as well have been referring to the July 17, 1970 induction order. Or, perhaps, if Clark had been acquitted he might have been reindicted under one or the other induction orders. The fact of the matter is that the Government, the grand jury and the district court proceeded under the mistaken impression that the November 20, 1970 letter was a valid induction order, when it was not. The .theory on which the court of appeals now affirms substitutes a new and different indictment for that handed down by the grand jury. This a federal court may not do. U.S.Const. amend. Y, § 1; Stirone v. United States, supra. And as I said above, the new and different indictment is defective under Toussie v. United States, supra.
I would reverse the conviction.
. 50 U.S.C.App. § 454(a) makes certain registrants who have failed to report for induction continuously liable for induction “when available.” This section does not create a continuing offense. It authorizes a new induction order to persons such as those serving a sentence for failure to report for induction, who complete their sentence while still of draft age. See 1 U.S.Code Cong. & Ad. News, 1346 (90th Cong., 1st Sess.) (1967). It extends liability for service past twenty-six to those who by litigation postponed induction past that age. Id. at 1333, 1346, 1353. But even for such persons a new induction order is needed to trigger a new duty to report. .