454 F.2d 138 (9th Cir. 1972), 71-1974, United States v. Marcovich

Docket Nº71-1974.
Citation454 F.2d 138
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Peter Michael MARCOVICH, Defendant-Appellant.
Case DateJanuary 07, 1972
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 138

454 F.2d 138 (9th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter Michael MARCOVICH, Defendant-Appellant.

No. 71-1974.

United States Court of Appeals, Ninth Circuit.

January 7, 1972

Rehearing Denied March 17, 1972.

Page 139

Paul G. Sloan (argued), of Friedman & Sloan, San Francisco, Cal., for defendant-appellant.

Michael Field, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before MADDEN, [*] Judge of the United States Court of Claims and CARTER and WRIGHT, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

Appellant was convicted and sentenced for a violation of 50 U.S.C. App. § 462(a) (1970 ed.), failure to submit to induction into the military service. He appeals on the ground that his induction was invalid because the local board did not have a basis in fact for denying his request for reclassification in class II-A (occupational deferment). He also urges that since neither the local nor the appeal board stated a reason for the denial, his induction notice was invalid under the rationale of United States v. Haughton (9 Cir. 1969) 413 F.2d 736, 739. We find that there was a basis in fact for the I-A classification and that the failure of the local and appeal board to state a reason for denying the requested deferment does not invalidate the induction order under the facts of our case. We affirm.

I. Factual Summary.

Appellant registered with the Selective Service System on December 14, 1965. While classified and deferred as a student, he requested an occupational deferment, class II-A. In his request he stated he was no longer a student, but had been enrolled in an apprentice carpenter training program since September 30, 1968. The local board met on March 11, 1969, reopened his classification and reclassified him I-A. No reasons were stated for denying the Class II-A deferment. On April 9, 1969, appellant appealed his I-A classification. The local board declined to reopen his classification on May 15, 1969, and on October 7, 1969, the appeal board denied his appeal without giving a reason.

Appellant was ordered to report for induction on November 18, 1969. He then filed a request for conscientious objector status which was denied. His induction date was then moved to December 3, 1969. He reported on that date but refused to submit to induction.

II. Basis in Fact.

Appellant maintains the local board lacked a basis in fact for denying his request for a II-A deferment. The requirements for an apprentice deferment are contained in 32 C.F.R. §§ 1622.22(a), 1622.23(b) and 1622.23a. 1

Page 140

The basic requirement for such a deferment is that the registrant's employment be found "necessary to the maintenance of the national health, safety or interest." 2 A registrant's activity in an apprentice training program may be considered "necessary" if it meets these four conditions.

"(1) The apprentice training program meets the standards and requirements prescribed by the Director of Selective Service based upon the recommendations of the Secretary of Labor.

(2) The program has been accepted by the Director of Selective Service for deferment purposes.

(3) The registrant has satisfactorily completed in the program a minimum of training prescribed by the Director of Selective Service.

(4) The registrant is satisfactorily pursuing his training in the program and meeting the requirements, and standards of performance prescribed by the Director of Selective Service." 32 C.F.R. § 1622.23(b).

The record indicates conditions 1 and 2 were satisfied by appellant's apprentice training program in that it met the standards of, and had been accepted by, the...

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5 practice notes
  • 338 F.Supp. 629 (N.D.Cal. 1972), CR71-1039, United States v. Bulger
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • March 2, 1972
    ...denial can be upheld only if all three possible reasons are legally sufficient for denial. United States v. Marcovich, Cr. No. 71-1974, 454 F.2d 138 (9th Cir., 1972). No other reading is possible in view of Fein v. Selective Service System Local Board No. 7, Yonkers, New York, 430 F.2d 376 ......
  • 463 F.2d 1219 (9th Cir. 1972), 71-2455, United States v. Jamison
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • June 23, 1972
    ...States v. Callison, 433 F.2d 1024, 1026 (9th Cir. 1970); United States v. Atherton, supra, 430 F.2d 741. Cf. United States v. Marcovich, 454 F.2d 138 at 141-142 (9th Cir. 1972); United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970). Reversed....
  • 477 F.2d 536 (9th Cir. 1973), 72-1020, United States v. Cate
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • March 7, 1973
    ...truck garden and cut the wood for fuel. Cf. Howze v. United States, 409 F.2d 27 (9th Cir. 1969). [6] See also United States v. Marcovich, 454 F.2d 138 (9th Cir. 1972)....
  • 341 F.Supp. 389 (S.D.N.Y. 1972), 71 Cr. 509, United States v. Aull
    • United States
    • Federal Cases United States District Courts 2nd Circuit
    • April 20, 1972
    ...conscientious objector claim because it agreed with the Local Board that the defendant was insincere. See United States v. Marcovich, 454 F.2d 138, 141-142 (9th Cir. 1972); United States v. Mount, 438 F.2d 1072, 1074 (9th Cir. 1970); United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970......
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5 cases
  • 338 F.Supp. 629 (N.D.Cal. 1972), CR71-1039, United States v. Bulger
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • March 2, 1972
    ...denial can be upheld only if all three possible reasons are legally sufficient for denial. United States v. Marcovich, Cr. No. 71-1974, 454 F.2d 138 (9th Cir., 1972). No other reading is possible in view of Fein v. Selective Service System Local Board No. 7, Yonkers, New York, 430 F.2d 376 ......
  • 463 F.2d 1219 (9th Cir. 1972), 71-2455, United States v. Jamison
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • June 23, 1972
    ...States v. Callison, 433 F.2d 1024, 1026 (9th Cir. 1970); United States v. Atherton, supra, 430 F.2d 741. Cf. United States v. Marcovich, 454 F.2d 138 at 141-142 (9th Cir. 1972); United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970). Reversed....
  • 477 F.2d 536 (9th Cir. 1973), 72-1020, United States v. Cate
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • March 7, 1973
    ...truck garden and cut the wood for fuel. Cf. Howze v. United States, 409 F.2d 27 (9th Cir. 1969). [6] See also United States v. Marcovich, 454 F.2d 138 (9th Cir. 1972)....
  • 341 F.Supp. 389 (S.D.N.Y. 1972), 71 Cr. 509, United States v. Aull
    • United States
    • Federal Cases United States District Courts 2nd Circuit
    • April 20, 1972
    ...conscientious objector claim because it agreed with the Local Board that the defendant was insincere. See United States v. Marcovich, 454 F.2d 138, 141-142 (9th Cir. 1972); United States v. Mount, 438 F.2d 1072, 1074 (9th Cir. 1970); United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970......
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