The fact that the Act itself makes no express provision for anything except a favorable report, cannot be without significance. See Elder v. United States, 9 Cir., 202 F.2d 465, 468. It is here that we find one distinction between this case and United States v. Gray, 9 Cir., 207 F.2d 237. The FBI report and the other documents there considered related to a security check in connection with screening of seamen under the Magnuson Act, 50 U.S.C.A. §§ 191, 192. That material was collected in an effort to ascertain matters adverse to the seaman.

United States v. Nugent, 200 F.2d 46, and United States v. Packer, 200 F.2d 540.See e. g., Imboden v. United States, 194 F.2d 508 (C.A. 6th Cir. 1952); Elder v. United States, 202 F.2d 465 (C.A. 9th Cir. 1953). Each of the respondents claims to be a conscientious objector entitled to total exemption from military service.

FED.R.EVID. 103(a)(2); Elder v. United States, 202 F.2d 465, 467 (9th Cir.1953). FED.R.EVID. 103(d).

This Court has considered the plain error rule in Selective Service cases and upheld the convictions. Elder v. United States (9 Cir. 1953), 202 F.2d 465, 467. In Yeater v. United States (9 Cir. 1968), 397 F.2d 975, 976, the court rested its affirmance of the conviction "upon the well-established rule of appellate review that defenses not raised in the district court will not be considered on appellate review.

The issue, therefore, is properly before this court. See Elder v. United States, 202 F.2d 465 (9th Cir.), cert. denied, 345 U.S. 999, 73 S.Ct. 1143, 97 L.Ed. 1405 (1953). And it requires reversal of the judgment of conviction.

These afterthoughts, like the defense of entrapment, are not the plain fundamental errors invoking appellate cognizance despite the failure to assert them at trial. Cf. Elder v. United States, 9th Cir. 1953, 202 F.2d 465. The judgment is affirmed.

See also United States v. Wilson, 7 Cir., 215 F.2d 443. Moreover, a reading of the statute and regulation discloses that neither contained any requirement whatever for an inquiry by the Department of Justice in those cases in which the Local Board has granted conscientious objector classification but has denied ministerial classification. See DeMoss v. United States, supra; Weaver v. United States, 8 Cir., 210 F.2d 815; Elder v. United States, 9 Cir., 202 F.2d 465. Here appellant made no objection, either at his trial or in this Court, to the inquiry, hearing and recommendation having been made. Therefore we do not consider such inquiry, though unauthorized by law, to be of itself ground for reversal.

United States v. Peckham, D.C., 105 F. Supp. 775, 777. Hunt v. United States, 8 Cir., 231 F.2d 784; Christoffel v. United States, 91 U.S.App.D.C. 241, 200 F.2d 734; Elder v. United States, 9 Cir., 202 F.2d 465. An examination of the record in this case leads to the conclusion that no reversible error was committed, and the judgment is accordingly Affirmed.

Weaver v. United States, 8 Cir., 210 F.2d 815. In Elder v. United States, 202 F.2d 465, 468, the Court of Appeals for the Ninth Circuit, in discussing another question, i.e., the necessity for a full disclosure of the report of the Federal Bureau of Investigation made in connection with a reference to the Department of Justice, took note of the statutory language — "if such claim [to conscientious objector status] is not sustained by the local board," the appeal board should refer the "claim" to the Department of Justice — and stated: "Only in those instances where the registrant's objections have not been sustained by the board are referrals to be made to the Department." In United States v. Nugent, 346 U.S. 1, 8, 73 S.Ct. 991, 996, 97 L.Ed. 1417, the Supreme Court, in passing upon the same question under discussion in the Elder case, used this language:

In United States v. Nugent, 2 Cir., 200 F.2d 46, and United States v. Packer, 2 Cir., 200 F.2d 540, the court held that the registrant was entitled to examine the F.B.I. report and that the Universal Military Training and Service Act impliedly required that such report be made of record for consideration of all directly concerned. In Elder v. United States, 9 Cir., 202 F.2d 465, the court refused to follow or approve of the Nugent and Packer decisions, holding that the statute neither requires nor contemplates the inclusion of the investigative report in the Selective Service file. The court relied upon and quoted from United States v. Geyer, D.C., 108 F. Supp. 70.