United States v. Craig Joseph Stacer

Appellant Stacey appeals from his conviction for refusing to submit to induction in violation of 50 U.S.C.App. § 462. Our jurisdiction is based upon 28 U.S.C. § 1291 .

Appellant’s basic claim is that 32 C.F.R. § 1625.2 is unauthorized by and in conflict with the Military Selective Service Act of 1967, 50 U.S.C.App. § 451 et seq., and as applied to appellant violates due process and equal protection and infringes upon freedom of religion. In Ehlert v. United States, 422 F.2d 332, 334 (9th Cir. 1970) aff’d 402 U.S. 99 , 91 S.Ct. 1319 , 28 L.Ed.2d 625 (1971), this Court in an en banc opinion upheld the validity of § 1625.2. See also Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968). Accord: United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966), Keene v. United States, 266 F.2d 378 (10th Cir. 1959), United States v. Beaver, 309 F.2d 273 (4th Cir. 1962) cert. denied 371 U.S. 951 , 83 S.Ct. 505 , 9 L.Ed.2d 499 (1962), etc. By reason of the above cases, we decline to decide this case contrary to Ehlert .

Stacey next contends that due process requires an administrative proceeding to determine late crystallization of conscientious objection. Ehlert’s holding that late crystallization…