416 F2d 404 Flenghi v. United States
416 F.2d 404
James Robert FLENGHI, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
May 22, 1969.
Ron Bain (argued), Los Angeles, Cal., for appellant.
John S. Lane (argued) Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Los Angeles, Cal., for appellee.
Before HAMLEY and BROWNING, Circuit Judges, and McNICHOLS, District Judge.1
The government concedes that the Local Board erred when it failed either to forward to the Appeal Board Selective Service System form 109, certifying that the defendant was enrolled as a full-time student, or to recall defendant's file from the Appeal Board for reopening. The government also concedes that as a result of this failure no consideration was given to the fact reflected in the certificate prior to the issuance of the order to report for induction.
We cannot agree with the government's contention that the omission was harmless because information received after the defendant refused to submit to induction indicated that the form 109 may have been erroneously issued.
Honorable Ray McNichols, United States District Court for the District of Idaho, sitting by designation