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United States v. Folino

June 29, 1973

UNITED STATES OF AMERICA, APPELLEE
v.
SAM JOHN FOLINO, APPELLANT



(D.C. Criminal No. 72-57) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Before HUNTER and WEIS, Circuit Judges and SCALERA, District Judge

Opinion OF THE COURT

Per Curiam:

Appellant, Sam John Folino, was found guilty by a jury of failing to report for induction in violation of 50 U.S.C. App. § 462(a).

The Selective Service record establishes that after receiving notice of induction, the appellant had filed a Form 150 (Claim for Conscientious Objection), and had been granted a personal interview. However, the Board later sent Folino a letter stating:

"Please be advised that the local board has considered the information submitted after your order to report for induction and has decided there was no change in your status resulting from circumstances over which you had no control, and therefore cannot reopen your classification."

After the trial had been concluded, this Court handed down the decision in United States v. Ziskowski, 465 F.2d 480 (3rd Cir. 1972), where a similar statement by the local Board was found deficient. Ziskowski is not distinguishable and we therefore reluctantly conclude that we must reverse appellant's conviction.

Accordingly, the judgment of conviction and sentence will be reversed.

19730629

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