United States v. Stephen Michael Brudney, Plaintiff-Defendant-Appellant

463 F.2d 376 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Michael BRUDNEY, Plaintiff-Defendant-Appellant. No. 71-2637. United States Court of Appeals, Ninth Circuit. June 15, 1972. Certiorari Denied Oct. 16, 1972. See 93 S.Ct. 246 . Timothy H. Power (argued), San Francisco, Cal., for plaintiff-appellant. John F. Cooney, Jr. (argued) F. Steele Langford, Asst. U. S. Attys., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for defendant-appellee. Before CHAMBERS and WRIGHT, Circuit Judges, and LUCAS, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 Appellant was convicted, after trial to the court, of a violation of 50 U.S.C. App. Sec. 462, for refusal to submit to induction. Sentence was suspended on condition that he perform alternate service of national importance for two years. On this appeal he makes two main contentions: (1) that he was improperly ordered to take a second physical examination and was thereby denied a medical interview, and (2) that he was not called for induction in proper order. We affirm. 2 Brudney had been classified I-A in March 1968. Upon examination in April he qualified for induction. One year later, in a letter to the local…

Appellant was convicted, after trial to the court, of a violation of 50 U.S.C. App. § 462, for refusal to submit to induction. Sentence was suspended on condition that he perform alternate service of national importance for two years. On this appeal he makes two main contentions: (1) that he was improperly ordered to take a second physical examination and was thereby denied a medical interview, and (2) that he was not called for induction in proper order. We affirm.

Brudney had been classified I-A in March 1968. Upon examination in April he qualified for induction. One year later, in a letter to the local board a psychiatrist expressed the opinion that Brudney was disqualified for psychiatric reasons. The letter, together with other medical records, went to the induction station for re-evaluation.

The papers were considered and returned with a finding of unacceptability and a recommendation that Brudney be re-examined in two months. This was a standard recommendation when a possible temporary medical defect was suspected.

The clerk of the board ordered Brudney to another physical examination three months later. He was given a neuropsyehiatric consultation with a specialist and…

(dissenting):

I am convinced that the order of call claim is good. The Selective Service regulations [ 32 CFR §§ 1606.31 et seq.] provide a comprehensive scheme of rules governing the production of Selective Service files in court and the use of such files by United States attorneys and other government agents. None of these regulations allows the removal of original files to the United States attorney’s office as was done here. There has been no attempt by the government to show compliance with these regulations. Brudney’s conviction should be reversed.