446 F2d 1403 United States v. Bammann

446 F.2d 1403

UNITED STATES of America, Plaintiff-Appellee,
Gary Robert BAMMANN, Defendant-Appellant.

No. 26599.

United States Court of Appeals, Ninth Circuit.

Aug. 18, 1971.

Clark A. Barrett, San Mateo, Cal., for appellant.

James L. Browning, U.S. Atty., F. Steele, Chief, Crim. Div., Michael W. Field, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before DUNIWAY, WRIGHT and CHOY, Circuit Judges.


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Appellant, a conscientious objector, was convicted for refusing to comply with an order of his local board to report for civilian work in lieu of induction into the Armed Forces. 50 U.S.C. App. 462. He contends that the Government failed to prove that the local board had ordered him to report because, according to the agreed statement of facts upon which the case was tried, 'no order directing registrant to report was made by the Local Board at that time;' i.e. when the board met, interviewed appellant and, after he did not accept any of the civilian work offered, determined that work as an institutional helper with the Los Angeles County Department of Charities was both appropriate and available. The board had forwarded its choice of civilian work assignment to the National Director pursuant to 32 C.F.R. 1660.20(d), and, upon approval thereof being secured, a clerk of the local board had filled out and mailed to appellant the Order to Report for Civilian Work.


In United States v. Stark, 418 F.2d 901 (9th Cir. 1969), this court en banc held that


'where * * * the board's determination includes not only the type of employment deemed appropriate but also the employer to whom the registrant is to report, the critical exercise of administrative judgment by the board has been made and an order to report to the specified employer (subject to authorization of the National Director) is implicit and the action of the clerk in issuing the order is merely ministerial implementation.'


We hold that the Government did prove that an 'implicit' order was issued by the board when it determined the appropriate work and the appropriate employer. The exercise of administrative discretion had ended and all that remained was securing approval of the National Director and the ministerial issuance of the order. Stark, supra. The stipulation-- 'no order * * * was made by the Local Board at that time'-- refers only to the ministerial act of issuing the order, not to an implicit order to report subject to approval by the National Director.