United States v. Robert King Johnson

457 F.2d 942

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert King JOHNSON, Defendant-Appellant.

No. 71-2144.

United States Court of Appeals,
Ninth Circuit.

March 29, 1972.

Martha Goldin (argued), of Saltzman & Goldin, Hollywood, Cal., for defendant-appellant.

David P. Curnow, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before KOELSCH, DUNIWAY and KILKENNY, Circuit Judges.

PER CURIAM:

1

Johnson appeals from his conviction of refusing to be inducted into the Armed Forces, 50 U.S.C.App. Sec. 462(a).

2

On November 25, 1969, the local board issued an order to Johnson to report for induction on December 9, 1969. He did not report. On December 9, the board received from Johnson a Current Information Questionnaire (form SSS 127) that had been sent to him on October 23, 1968, together with a note stating that "the reason I was not at Depot at 6 A.M. was I injury [sic] my right arm and I will bring my Doctor paper tomorrow."

3

The note also stated that Johnson was on probation. On January 15, 1970, the board sent Johnson an order to report for armed forces physical examination on January 26, 1970. He did not do so. On January 21, 1970, the board received from Johnson a notice stating that he was on probation and giving the name and address of his probation officer.

4

Nothing more happened until July 15, 1970, almost five months later. On that day the board sent Johnson another current information questionnaire and a form letter inquiring as to his probation. These were returned on July 29. They stated that Johnson was on probation but not in custody. On November 9, 1970, the board sent Johnson a continuing duty letter, stating that the November 25, 1969 order to report for induction had not been cancelled, and ordering him to report on November 24, 1970. Johnson reported and was found acceptable, a moral waiver having been received and his probation having been terminated. He refused to be inducted.

5

The local board took no formal action to postpone Johnson's induction under the November 25, 1969 order, but the effect of the board's action was to postpone. Cf. White v. United States, 9 Cir., 1970, 422 F.2d 1254. The regulations, however, limit the board's power to postpone; 32 C.F.R. Sec. 1632.2 permits two postponements of 60 days each. It requires issuance of a notice of postponement to the registrant and the filing of a copy of the notice in his file, including a notation of the date to which induction is postponed. These things were not done. In fact, for a period of 165 days, nothing at all happened, so far as the record shows. Under these circumstances, United States v. Stevens, 9 Cir., 1971, 438 F.2d 628, and United States v. Munsen, 9 Cir., 1971, 443 F.2d 1229, are controlling.

6

Reversed.