470 F2d 1368 United States v. Lanier

470 F.2d 1368

UNITED STATES of America, Plaintiff-Appellee,
v.
David Stephen LANIER, Defendant-Appellant.

No. 72-2288.

United States Court of Appeals,
Ninth Circuit.

Dec. 29, 1972.

Bruce Silverman (argued), of Silverman, Ballard & Pagano, San Francisco, Cal., for defendant-appellant.

Robert E. Carey, Jr., Asst. U. S. Atty. (argued), Dennis Michael Nerney, James Bruen, Asst. U. S. Attys. James L. Browning, Jr., U. S. Atty., for plaintiff-appellee.

Before ELY and WALLACE, Circuit Judges, and SOLOMON,* District Judge.

PER CURIAM:

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1

Appellant appeals from his conviction for refusing to submit to induction. 50 U.S.C. App. Sec. 462(a).

2

On July 20, 1970, appellant's local Selective Service Board ordered him to report for induction on August 26. On that day appellant said he was sick and the board rescheduled his induction for October 28. Again he failed to report.

3

On November 30, 1970, the board received a letter from a psychiatrist saying that appellant "showed evidence of chronic anxiety," but it did not suggest that appellant's mental condition had changed in the last few months. On January 27, 1971, the board ordered appellant to report on February 8, 1971. Appellant appeared as ordered, but he refused to submit to induction.

4

Appellant contends that the induction order was invalid because the board did not review this letter.

5

The induction order, issued on July 20, 1970, was never cancelled. The date for reporting was rescheduled on two occasions for appellant's benefit. The letter from the psychiatrist arrived after the board ordered the appellant to report. United States v. Jenson, 450 F.2d 1258, 1263 (9th Cir. 1971), cert. denied 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 584 (1972). The board therefore could have reopened the case only if appellant showed "a change in [his] status resulting from circumstances over which [he] had no control." 32 C.F.R. Sec. 1625.2; United States v. Stacey, 441 F.2d 508 (9th Cir. 1971). Here the board had no authority to reconsider appellant's classification because the psychiatrist's letter made no such showing. Appellant suffered no prejudice by the board's failure to review the letter.

6

Affirmed.

*

Honorable Gus J. Solomon, Chief Judge, United States District Court for the District of Oregon, sitting by designation