United States of America, Appellee, v. James Phelps Miller, Appellant, 460 F.2d 293 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 460 F.2d 293 (9th Cir. 1972) April 27, 1972. Rehearing Denied June 1, 1972

Nathan R. Zahm (argued), Sherman Oaks, Cal., for appellant.

David H. Fox, Asst. U. S. Atty. (argued), Barbara Meiers, John F. Walter, Asst. U. S. Attys., Eric A. Nobles, Chief, Crim. Div., William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and GOODWIN, Circuit Judges, and SCHNACKE, District Judge.* 


James Phelps Miller was convicted of violating 50 U.S.C.App. Sec. 462 by refusing to be inducted into the Armed Forces. His collateral attack on the order of induction was rejected by the District Court. We affirm.

The asserted defect in the induction order was that it was 147 days old on the day Miller decided to refuse induction. His reliance upon our decisions allowing collateral attacks upon stale induction orders in cases of unreasonable delay caused by the government is misplaced. Any delay beyond 120 days in bringing Miller to the point of induction and refusal was of his own design. His letters to members of Congress and other attempts to upset his physical classification were all part of his own delaying action. Since the delay was not chargeable to the government, we need not decide whether Miller or the government correctly calculated the time.



The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation