Danny Roy Shoemaker v. United States

HAMLEY, Circuit Judge:

Danny Roy Shoemaker, classified in the selective service system as I-O, failed to report to assigned civilian work as ordered by his local draft board. He was indicted for knowingly failing to perform a duty in violation of Section 12(a) of the Universal Military Training and Service Act (Act), 62 Stat. 622 (1948), 50 U.S.C. App. § 462(a) (1964). Following a non-jury trial he was convicted and given a three year sentence under 18 U.S.C. § 4208 (a) (2) (1964). This appeal followed.

Shoemaker argues that he should have been acquitted because he presented a prima facie case for a IY-D ministerial classification and he asserts that no evidence whatsoever appears to rebut the claim. Under a IV-D classification a registrant, as in the case of a I-O classification, is exempt from induction. But one classified IV-D, unlike a I-O registrant, is not subject to a board order requiring him to engage in selected civilian employment for any period of time. See section 6(g) of the Act, 62 Stat. 611 , 50 U.S.C. App. § 456(g) (1964); Daniels v. United States, 9 Cir., 372 F.2d 407, 409, note 2 .

Shoemaker did not defend in the trial court on the ground that he was entitled to a IV-D classification. In the absence of plain error, points not raised in the trial court will not be considered on appeal. Yeater v. United States, 9 Cir., 397 F.2d 975 .

In our opinion there was neither plain error within the meaning of Rule 52(b), Federal Rules of Criminal Procedure, nor was there error of any kind with respect to this IV-D contention.

Examination of Shoemaker’s selective service file establishes that he requested a I-O classification, and that is what he received. He did not seek a IV-D classification, indicating at most that he hoped to qualify for such a classification at a later time. He was advised by the local board, in effect, that if and when he expanded his ministerial activity to such an extent that he was entitled to a IV-D classification, he should present evidence thereof to the board. Shoemaker submitted no additional evidence of this kind and did not, formally or informally, request a reopening of his classification after the appeal board classified him I-O.

Apart from Shoemaker’s failure to seek a IV-D classification from the agency, there is, in any event, a basis in fact for his I-O classification as distinguished from a IV-D classification.

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Shoemaker would not have been entitled to a IV-D classification unless the ministry was his vocation. See Langhorne v. United States, 9 Cir., 394 F.2d 129 . Shoemaker did not assert that he worked more than about ten hours a week in furtherance of his ministerial duties. He therefore failed to establish that the ministry was his vocation. See Daniels v. United States, 9 Cir., 404 F.2d 1049 ,' 1050-1051.

Shoemaker also contends that he should have been acquitted because, when he was ordered to perform civilian work, he was not given or offered a final physical inspection.

Shoemaker did take the regular pre-induction physical examination required of all registrants, and was found physically acceptable. Selective service regulations do not require that registrants classified I-O, as distinguished from registrants classified I-A or I-A-O, be subject to a final physical inspection before being ordered to report for civilian work. Briggs v. United States, 9 Cir., 397 F.2d 370 , relied upon by Shoemaker on this branch of the case, pertains to I-A registrants, and is therefore distinguishable.

The regulations require fair and equal treatment of all those subject to the *276 Act. See section 1(c) of the Act, 62 Stat. 605 (1948), 50 U.S.C. App. § 451(c) (1964), and 32 C.F.R. § 1622.1 . . But there is a rational basis for exempting those classified 1-0 from the provision for a final physical inspection. Unlike those classified I-A and I-A-O, there is no possibility that registrants classified 1-0 will be subject to the rigors of military life in a combat zone. In view of this rational basis for exempting 1-0 registrants from final physical inspections, it cannot be said that Shoemaker was not accorded fair and equal treatment.

Affirmed.

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. A selective service classification may not be overturned for lack of evidentiary support if there is a basis in fact for the classification. Witmer v. United States, 348 U.S. 375, 381, 383 , 75 S.Ct. 392 , 99 L.Ed. 428 .