459 F2d 53 United States v. O'Riley

459 F.2d 53

UNITED STATES of America, Appellee,
Brian Alan O'RILEY, Appellant.

No. 71-2609.

United States Court of Appeals,
Ninth Circuit.

March 8, 1972.

Neil F. Horton (argued), of Johnston, Klein, Horton & Solomon, Oakland, Cal., for appellant.

Michael W. Field, Asst. U. S. Atty. (argued), F. Steele Langford, Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLIN, DUNIWAY, and GOODWIN, Circuit Judges.


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In this appeal from a conviction under 50 U.S.C. App. Sec. 462 for refusal to submit to induction, the defendant asserts two grounds for voiding his order to report for induction into the Armed Services. Neither ground justifies reversal.


First, the defendant mounts a collateral attack upon the order of call during each of the five months preceding his order. He asserts that the cumulative effect of overcalls in prior months resulted in a distortion in the number of selectees needed during the month in which he was ordered to report. We find no substantive difference between this case and that of the defendant whose conviction was affirmed in United States v. Howells, 452 F.2d 1182 (9th Cir. 1971).


The defendant also asserts that he should not have been called, because he was a student. He became a student after he had received an order to report for induction and after he had requested and received a postponement in order to pay his debts. Reclassification of registrants under such circumstances was not what Congress contemplated in providing for 1-S deferments. McLain v. Selective Service Local Board No. 47, 439 F.2d 737 (8th Cir. 1971).