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UNITED STATES v. WELLER

No. 71-2769.

466 F.2d 1279 (1972)

UNITED STATES of America, Plaintiff-Appellant, v. Thomas William WELLER, Defendant-Appellee.

United States Court of Appeals, Ninth Circuit.

September 21, 1972.

Attorney(s) appearing for the Case

John F. Cooney, Jr., Asst. U. S. Atty. (argued), F. Steele Langford, Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellant.

Marvin M. Karpatkin (argued), Michael N. Pollet, John E. LeMoult, Steven Delibert, of Karpatkin, Ohrenstein, Karpatkin, Pollet, LeMoult & Delibert, Melvin L. Wulf, ACLU Foundation, New York City, Paul N. Halvonik, ACLU of Northern Cal., San Francisco, Cal., Peter Franck, Ezra Hendon, Berkeley, Cal., for defendant-appellee.

Robert H. Turtle of vom Baur, Coburn, Simmons & Turtle, Washington, D. C., William B. Spann, Jr., Atlanta, Ga., William K. Coblentz, William F. McCabe of Jacobs, Sills & Coblentz, San Francisco, Cal., for American Bar Ass'n amicus curiae, for appellee.

Before BARNES, ELY and GOODWIN, Circuit Judges.

BARNES, Circuit Judge.

The appellee, Thomas Weller, was indicted in January of 1969, by a federal grand jury for refusing to submit to induction in violation of 50 U.S.C. App. § 462. The defense moved to dismiss the indictment pursuant to Rule 12 of the Rules of Criminal Procedure. On September 19, 1969, the district court granted the motion to dismiss. The district court judge stated as the grounds for his decision that he was "loathe to hold" that the Selective...

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