302 F2d 929 Moore "X" v. United States

302 F.2d 929

Bernard Edward MOORE, aka Bernard E. "X", Appellant,
UNITED STATES of America, Appellee.

No. 17486.

United States Court of Appeals Ninth Circuit.

May 2, 1962.

William L. Porter, San Francisco, Cal., for appellant.

Cecil Poole, U. S. Atty., James F. Hewitt, Asst., U. S. Atty., San Francisco, Cal., for appellee.

Before ORR, HAMLEY and BROWNING, Circuit Judges.


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Moore, having been ordered to report for induction by his draft board as required by the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., refused to report because he claimed to be a conscientious objector and claimed his draft board erred in classifying him I-A. He was indicted, tried and convicted and is asking us to review the said judgment of conviction. His defense in the lower court was an attack on the correctness, validity, and legality of the proceedings before the selective service board and the Department of Justice. In those proceedings he asserted that as a member of the organization commonly known as the "Black Muslims," he was a conscientious objector and entitled to exemption from all military training or service. He further asserts that the I-A classification made by the board has no factual support. However, because of the refusal of Moore to report for induction, he failed to exhaust his administrative remedies. He did not bring himself to "the brink of induction," and is therefore without standing to assert the invalidity of his classification. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Mason v. United States, 218 F.2d 375 (9th Cir. 1954); Francy v. United States, 217 F.2d 750 (9th Cir. 1954); Kalpakoff v. United States, 217 F.2d 748 (9th Cir. 1954); Williams v. United States, 203 F.2d 85 (9th Cir. 1953); United States v. Balogh, 160 F.2d 999 (2d Cir. 1947).