United States v. David Alan Duarte

469 F.2d 90

UNITED STATES of America, Plaintiff-Appellee,
v.
David Alan DUARTE, Defendant-Appellant.

No. 72-1848.

United States Court of Appeals,
Ninth Circuit.

Sept. 19, 1972.

Stephen Adams (argued), of Adams & Adams, San Francisco, Cal., for defendant-appellant.

Chester G. Moore, III, Asst. U. S. Atty. (argued), Frederic F. Tilton, Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before CHAMBERS, BARNES and MOORE,* Circuit Judges.

PER CURIAM:

1

The judgment of conviction in this selective service case is affirmed.

2

We find that the board clerk in ordering defendant to report for induction did not usurp the function of the board. The board was entitled to proceed pursuant to Local Board Memorandum No. 106. When Duarte's notice to report for a pre-induction physical examination went out, it was accompanied by a notice that failure to report would result in a notice to report for induction. The first notice clearly was a board act. The clerk later followed through in a ministerial way. Hence the clerk did not supersede the board. See United States v. Shunk, 438 F.2d 1204 (9 Cir. 1971).

*

The Honorable Leonard P. Moore, Senior Circuit Judge for the Second Circuit, sitting by designation