United States v. Asa John Berger, 434 F.2d 610 (9th Cir. 1970). · Go Syfert
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United States v. Asa John Berger, 434 F.2d 610 (9th Cir. 1970). Cases Citing This Book View Copy Cite
11 citation events across 4 distinct courts.
Strongest positive: United States v. Donald Gustav Brader (ca9, 1972-05-15)
Statutes interpreted (leading-cases list)
#13 32 C.F.R. § 1604.52 cited 1× in this case · 47 total citations of statute
Top citers, strongest first. 2 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Donald Gustav Brader
9th Cir. · 1972 · confidence medium
United States v. Lowell, 437 F.2d 906, 908 (9th Cir. *1209 1971); United States v. Berger, 434 F.2d 610, 611 (9th Cir. 1970).
discussed Cited as authority (rule) United States v. Jape Holley Taylor (2×)
5th Cir. · 1971 · confidence medium
Ehlert v. United States, 402 U.S. 99 , 91 S.Ct. 1319 , 28 L.Ed.2d 625 (No. 120, April 21, 1971); Austin v. United States, 434 F.2d 1301 (5th Cir. 1970); United States v. Berger, 434 F.2d 610, 611 (9th Cir. 1970); United States v. Hosmer, 434 F. 2d 209 (1st Cir. 1970).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Asa John BERGER, Defendant-Appellant
25190.
Court of Appeals for the Ninth Circuit.
Dec 11, 1970.
434 F.2d 610
Solomon Zeltzer, San Jose, Cal., for appellant., James L. Browning, Jr., U. S. Atty., Jerrold M. Ladar, Chief, Criminal Division, John G. Milano, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Merrill, Browning, Duniway.
Cited by 11 opinions  |  Published
PER CURIAM:

Convicted of refusing to submit to induction into the Armed Forces of the United States (50 U.S.C. App. § 462), Berger appeals. We affirm. We have ruled against each of his contentions in previous decisions.

1. The members of his local board were all residents of the county, as required by 50 U.S.C. App. § 460(b) (3). However, two of the three resided outside the area in which the board had jurisdiction. 32 C.F.R. § 1604.52. We have held that the regulation is directory, not mandatory. United States v. Reeb, 9 Cir., 1970, 433 F.2d 381; United States v. Wallace, 9 Cir., 1970, 435 F.2d 12.

2. When Berger registered with his local board on April 1, 1964, he did not claim to be a conscientious objector. He first made such a claim in a document received by his board on July 3, 1968, after he had refused to be inducted on June 26, 1968. The board was under no duty to consider this claim. Palmer v. United States, 9 Cir., 1968, 401 F.2d 226; United States v. Blakely, 9 Cir., 1970, 424 F.2d 1043, and cases cited. Moreover, his form 150 showed on its face that his beliefs long antedated the order for induction. United States v. Pieters, 9 Cir., 1970, 423 F.2d 1200; United States v. Posner, 9 Cir., 1970, 424 F.2d 181; Rusk v. United States, 9 Cir., 1969, 419 F.2d 133; Blades v. United States, 9 Cir., 1969, 407 F.2d 1397.

' 3. Section 1625.2 of 32 C.F.R. is not invalid. United States v. Kanner, 9 Cir., 1969, 416 F.2d 522; Dugdale v. United States, 9 Cir., 1968, 389 F.2d 482.

4. Although Berger testified to the contrary, his Selective Service file shows that he was informed that a government appeal agent was available at his local board to give him legal advice on selective service matters. Berger never sought such advice, nor did he request an appearance before the board. Under these circumstances, he is in no position to attack the validity of section 1624.1(b) of 32 C.F.R.

5. The order to report was not invalid because it was signed by the clerk of the board. United States v. Ehret, 9 Cir., 1970, 431 F.2d 1146; United States v. Brossard, 9 Cir., 1970, 423 F. 2d 711; United States v. Weaver, 9 Cir., 1970, 423 F.2d 1126; United States v. Hulphers, 9 Cir., 1969, 421 F.2d 1291; see also United States v. Cralle, 9 Cir., 1969, 415 F.2d 1065.

[*612] 6. Berger’s Selective Service file was properly admitted in evidence. United States v. Hulphers, supra.

7. The Act does not violate the establishment of religion clause of the First Amendment. Smith v. United States, 9 Cir., 1970, 424 F.2d 267; Negre v. Larsen, 9 Cir., 1969, 418 F.2d 908; United States v. McQueary, 9 Cir., 1969, 408 F.2d 493.