424 F2d 546 Bender v. United States

424 F.2d 546

Peter Augustus BENDER, Appellant,
UNITED STATES of America, Appellee.

No. 24312.

United States Court of Appeals, Ninth Circuit.

April 29, 1970.

Rehearing Denied May 21, 1970.

Appeal from the United States District Court for the Central District of California; E. Avery Crary, Judge.

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J. B. Tietz (argued), Los Angeles, Cal., for appellant.


David Fox (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 CARTER and HUFSTEDLER, Circuit Judges, and VON DER HEYDT,* District Judge.



The facts are not complex. Appellant Bender, in January, 1968, was classified I-A by his local draft board. On April 4, 1968, he was ordered to report for induction. On April 8, 1968, he wrote the local board claiming status as a conscientious objector, and simultaneously wrote General Hershey, Director of Selective Service, the California State Director, and the State Director of Massachusetts, the state of his local board. In none of these letters did he mention his conscientious objector application of even date.


The local board denied his application without reopening his case. His induction into the Armed Forces was postponed until May, 1968, at which time he reported and refused induction. Following indictment, he was convicted by the Court without a jury of failure to submit to induction. This appeal followed.

Three primary issues are raised:


1. Basis in fact for denial of conscientious objector status.


2. Lack of procedural due process.

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3. Basis in fact for termination of occupational deferment.


This appeal raises no issue which has not been covered fully in prior appeals to this court. Based upon existing authority of this Circuit,

It is ordered:





Hon. James A. von der Heydt, United States District Judge for the District of Alaska, sitting by designation