The opinion
BUTZNER, Circuit Judge
(dissenting):
I dissent. The law requires a registrant to furnish an “address where mail will' reach him,” not his “current address,” 32 C.F.R. § 1641.1 , and I cannot agree that the instructions to the jury rendered the use of the inaccurate abbreviation in the verdict form harmless. * In this case, as in United States v. Neilson, 471 F.2d 905 (9th Cir. 1972), the trial court presented the jury with alternative formulations of the law, one of which was the misleading “current address.” Any curative effect that the correct version might have is offset by the fact that the incorrect one was before the jury during their deliberations. Even if the incorrect verdict form did not mislead the jury, and their request for further instructions argues otherwise, it “created the definite possibility of confusion” which the Neilson court held to be prejudicial. 471 F.2d at 908 .
The defect is by no means merely technical. The government had to prove that Haynes “knowingly” failed to provide the proper information. 50 App. U.S.C. § 462. His defense was that his conduct was due to mistake and misunderstanding. It is clear that Haynes did not furnish his draft board a “current address” after June 1972. On the other hand, had the verdict form correctly reflected the charge, the jury could have found that except for the period between mid-June and mid-October, Haynes’ home in Pelham, North Carolina, was an “address where mail will reach him” that was known to the local board. Faced with a four-month hiatus in contact instead of an apparent effort to permanently drop out of touch, the jury could more readily have believed Haynes’ testimony to the effect that he believed the Pelham address to be his mailing address at all times and found that his actions were merely inadvertent or mistaken. “A conviction ought not to rest on an equivocal direction to the jury on a basic issue.” United States v. Bollenbach, 326 U.S. 607, 613 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946).
I must also disagree with the implication that counsel for the defense, by using the phrase “current address” in a bench colloquy concerning proposed instructions, waived or weakened his objection on this point. In his next proposed instruction he specifically objected to the use of the phrase and properly suggested the language of 32 C.F.R. § 1641.1 as an alternative. If anything, his casual utterance suggests only that the shorter formulation is, as the district court pointed out, easier to say. It has no bearing on the necessity for the more precise statement or on counsel’s position.
Confronted by a substantially similar error, our brothers on the Ninth Circuit reversed and ordered a new trial. United States v. Neilson, 471 F.2d 905 (9th Cir. 1973). I would follow their sound precedent.
The verdict form read:
“We, the jury in the above entitled case, do find the defendant, Melvin Alton Haynes,
Guilty or Not Guilty
of the crime of failing to keep the Local Board informed of his current address as charged in Count Three of the indictment.” [Italics added]
Haynes’ counsel specifically objected to the substitution of the term “current address” for the language defining the crime.