United States v. Richard Edwin Draper

Appellant was convicted for failing to report for civilian work in violation of 50 U.S.C. App. § 462. His conviction was affirmed in Draper v. United States, No. 25,199 (9th Cir., decided December 14, 1970). Following the mandate appellant moved for a new trial on the ground of newly discovered evidence. We assume for the purposes of this opinion that the evidence was new and was diligently discovered in accordance with the rule announced in Balestreri v. United States, 224 F.2d 915 (9th Cir. 1955).

The facts pertinent to this appeal and the order denying the motion for new trial are: In December 1965 appellant was classified as a conscientious objector (I-O) and following his employment by Goodwill Industries of Sacramento in October 1966 was classified I-W. His employment was terminated by Goodwill Industries in November 1966 for substandard performance. In April 1967 appellant was accepted by VISTA as a trainee, took training, and secured a job with VISTA. In March 1967 and January 1968 an official of VISTA wrote letters to the local board and on appellant’s suggestion mailed them to the state director. For the purposes of this opinion we assume that these letters were…