Yeater v. United States, 22261.
| Decision Date | 27 June 1968 |
| Docket Number | No. 22261.,22261. |
| Citation | 397 F.2d 975 |
| Parties | Thomas Jerry YEATER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. B. Tietz (argued), Los Angeles, Cal., for appellant.
Arnold Regardie (argued), Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty. Chief Criminal Division, William M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.
Before CHAMBERS and BARNES, Circuit Judges, and THOMPSON,* District Judge.
Appellant appeals his conviction for refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App., Section 462.
The specifications of error are without merit. In the trial court, Appellant contended that there was no basis in fact for the I-A classification made by the Local Board because he was entitled to deferment for physical incapacity. He also suggested rather weakly that he was entitled to classification as a conscientious objector. He did not, in the trial court, assert entitlement to a dependency deferment as a defense.
Appellant did not appeal any of his I-A (available for military service) classifications through the appellate review channels of the Selective Service System. He is therefore precluded from claiming as a defense to a criminal prosecution, that there was no basis in fact for the classification. Evans v. United States, 9th Cir. 1958, 252 F.2d 509; Woo v. United States, 9th Cir. 1965, 350 F.2d 992; Greiff v. United States, 9th Cir. 1965, 348 F.2d 914.
Further, the Selective Service file in evidence discloses ample basis in fact for the I-A classification on March 31, 1966, which was the predicate for the order to report for induction. The alleged physical deficiency resulted from a fracture of the right leg suffered by the registrant in 1964 which left the right leg one-half inch shorter than the other. The Armed Forces Examination Station found him acceptable for military service after thorough examination, including consultation with an orthopedic specialist. The classification can be overturned only if it has no basis in fact. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; Storey v. United States, 9th Cir. 1966, 370 F.2d 255; Petrie v. United States, 9th Cir., decided May 21, 1968.
Appellant's lawyer on appeal, who did not represent him in the trial court, now contends that because of letters presented to the Selective Service Board after the order to report for induction, the Local Board was required to reconsider Appellant's classification and did not do so at a regularly convened meeting of the Board. Cf. Miller v. United States, 9th Cir. 1967, 388 F.2d 973. Equivocal entries in the Selective Service file are relied upon to support the contentions. Mrs. Anna...
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