447 F2d 1365 United States v. Malatesta

447 F.2d 1365

UNITED STATES of America, Plaintiff-Appellee,
Aldo MALATESTA, Defendant-Appellant.

No. 71-1696.

United States Court of Appeals, Ninth Circuit.

Sept. 20, 1971, Rehearing Denied Nov. 12, 1971.

Paul Mike Goorjian (argued), San Francisco, Cal., for defendant-appellant.

James I. Hazard, Asst. U.S. Atty. (argued), James L. Browning, Jr., U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before KOELSCH and CHOY, Circuit Judges, and POWELL,1 District judge.


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Appellant asks that his conviction for failure to submit to induction be set aside because (1) 204 days elapsed between his first order to report and the final date when his refusal resulted in prosecution, and (2) the board should have reopened his classification as he made out a prima facie case for 1-Y classification.


His first claim is that the board is permitted extensions of only 120 days from the original order and if the extension is beyond that time there must be a new order under 32 CFR 1632.2. United States v. Lonidier, 427 F.2d 30 (9 Cir. 1970). We find here the delay chargeable to the board to be less than 120 days and delay occasioned by the registrant should not be considered in his favor in this context. United States v. Foster, 439 F.2d 29 (9 Cir. 1971), approved in United States v. Munsen, 443 F.2d 1229 (9 Cir. 6/11/71).


We cannot find from the record that appellant made out a prima facie case requiring the board to reopen and reclassify appellant 1-Y. United States v. Kohls, 441 F.2d 1076 (9 Cir. 1971).




Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation