United States v. Kenneth Dale Hudson

479 F.2d 251

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 1973
• Docket: 72-1757
• Status: Published

Opinions

WALLACE, Circuit Judge:

Appellant was convicted of violating 50 U.S.C.App. § 462(a) for failing to report for induction at the bus depot as ordered. The only evidence of the crime was appellant’s Selective Service file; he contends that part of the file was inadmissible and the whole file was insufficient to sustain the conviction. Nowhere does he contend that he did report. We affirm.

Appellant was ordered to report on January 26, 1971. Page 11 of the file, entitled “Minutes of Actions by Local Board and Appeal Board and on Appeal to the President,” contains, next to a stamped date of “JAN 26 1971,” the typewritten entry “Failed to Report for Induction.” Page 56 is a letter dated March 2, 1971, from a “Field Supervis- or” of the state director to the local board. The letter indicates that appellant’s file was enclosed, states in part that “[i]t appears that the registrant is in violation of section 12 of the Military Selective Service Act of 1967,” and directs the local board to complete a “Report of Violation” form. Apparently in response, page 57 is a completed “Report of Violation” form dated March 3, 1971, which is addressed to the United States Attorney and signed by a representative of the local board. By checks in appropriate boxes, the form indicates that appellant was ordered to report for induction and failed to do so.

While there is some question as to the nature of the objection made at trial, it can be fairly construed to be directed to the pages in question and to include the ground of lack of foundation. No attempt was made to qualify the file as a business record pursuant to 28 U.S.C. § 1732. Admissibility as an exception to the hearsay rule must therefore be based upon a showing that it qualified as an official document under 28 U.S.C. § 1733(a) which provides:

Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.

The first step towards admissibility requires the copy of appellant’s Selective Service file be authenticated. 28 U.S.C. § 1733(b). This is satisfied when an officer having legal custody of the record, or his deputy, certifies the nature of the record, that he has custody of the original and attaches the seal of his office. Fed.R.Crim.P. 27; Fed.R. Civ.P. 44; Yaich v. United States, 283 F.2d 613, 617 (9th Cir. 1960). In the instant case, a “certificate” was attached to the file which complied with these requirements.

Once proven authentic, Selective Service files apparently have been deemed to comply with the statute and without any further showing admitted as official documents. United States v. Lloyd, 431 F.2d 160, 163-164 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971); LaPorte v. United States, 300 F.2d 878 (9th Cir. 1962); Yaich v. United States, supra, 283 F.2d at 616; Kariakin v. United States, 261 F.2d 263, 265 (9th Cir. 1958). The point raised by appellant is that the record is silent as to who made the en-try on page 11 and pursuant to what duty. The alleged offense took place at a bus station. Yet, the entry of the failure to report is found in the “Minutes of Actions by Local Board and Appeal Board and on Appeal to the President.” Appellant claims there must be an affirmative showing that the person who made the entry actually witnessed the failure to appear, and he relies on United States v. Knudsen, 320 F.Supp. 878 (W.D.Wis. 1971).

Because § 1733 states the record “shall be admissible,” it could be contended that nothing further than general compliance with the statute is necessary for admissibility of every part of the file. However, appellant is partially correct in his contention that'the author of the challenged entry must possess personal knowledge of the evidence stated therein. Yaich v. United States, supra, 283 F.2d at 616; Olender v. United States, 210 F.2d 795, 801 (9th Cir. 1954). (One exception to this rule will be discussed infra.) On its face, the entry on page 11 could well be taken by the trial judge as a recording of a firsthand impression and therefore the declarant, if called to testify, could make the same statement in court. The trial court, therefore, did not commit error in admitting the statement under § 1733. That there is no independent affirmative evidence that the recorder actually had first-hand knowledge does not militate against its admissibility and we, therefore, decline to follow the district court in United States v. Knudsen, supra.1 Such a restrictive rule would virtually emasculate the purpose behind § 1733 and require the proponent of the record to call witnesses for each entry where the entrant did not sign his name, state his title and make an additional statement to the effect that “I was there and saw it.” The main thrust of both §§ 1732 and 1733 is to obviate the need to call witnesses to each item in a writing which qualifies pursuant to either one of the sections. Olender v. United States, supra at 801. So long as the entry meets the basic requirements referred to above and appears trustworthy on its face, there is no error if the court admits it into evidence.²

This position is consistent with our earlier opinion in Kariakin v. United States, supra, where the defendant was convicted for failing to report for induction. We stated:

As proof of his failure to report on October 4 as required by the notice of the Board, there is contained in the file a letter dated October 1 by appellant, saying he refused to report; a notation on the minutes of the local board on October 8, 1956, “Papers ret’d. from Ind. Sta. Failed to Report for Induction”; and a record of his appearance at the local board on October 11, 1956 (one week after he was supposed to report for induction), at which time appellant wrote out a copy of his letter of October 1 (refusing to report).

We hold there was ample evidence to sustain the judgment of conviction.

261 F.2d at 265-266.

We note that one of the three entries mentioned was a notation in the minutes of the local board (similar to the page 11 entry in this case) stating in essence that there was a failure to appear. That evidence was considered, along with the two other items in the file, in sustaining the judgment of conviction. The Kariakin entry had one additional sentence which could be interpreted as making it less likely that the entrant was present when the act occurred. If that entry was acceptable, a fortiori, the questioned entry on page 11 in this case should be admissible.

That there is but one entry and it does not state all that could be recorded does not militate against admissibility. As we have held before, “the fullness and completeness of the official document would bear upon its weight and not upon its admissibility.” LaPorte v. United States, supra, 300 F.2d at 882.³

The entries on pages 56 and 57 involve a different problem. That these items found their way into appellant’s file does not necessarily mean they are admissible. Each document contains a report of failure to appear. From their nature and content, one could only conclude they report what has been told to or read by the writer and are, therefore, double hearsay. If the source of the report came from within the file, it could only come from the page 11 entry. If from outside the file, there remains the question of the foundation for the extra step of hearsay. While § 1733(a) obviates the first step of hearsay so that the writer need not be called as a witness, it does not ordinarily make double hearsay admissible. We said in Olender v. United States:

Thus, this circuit and most of the other circuits which have passed on the question have held that the facts stated in the document must have been within the personal knowledge and observation of the recording official or Ms subordinates, and that reports based upon general investigations and upon information gleaned second hand from random sources must be excluded. (Emphasis supplied.)

210 F.2d at 801.⁴

We have, therefore, noted an exception to the rule requiring first-hand knowledge when a subordinate with such knowledge reports to the recording officer.⁵

However, it is unnecessary for us to determine whether pages 56 and 57 fit into this exception. They are, at the worst, only cumulative of the entry on page 11 which was properly before the trier of fact. In a case tried by the court without a jury, if there was admissible evidence sufficient to sustain a finding, the admission of improper evidence is not grounds for reversal. Bailey v. Sears, Roebuck & Co., 115 F.2d 904, 907 (9th Cir. 1940), cert. denied, 314 U.S. 616, 62 S.Ct. 82, 86 L.Ed. 495 (1941); Anglo California National Bank v. Lazard, 106 F.2d 693, 706 (9th Cir. 1939), cert. denied, 308 U.S. 624, 60 S.Ct. 379, 84 L.Ed. 521 (1940).

The next contention is whether the entry on page 11 is sufficient to sustain a conviction. Of course, evidence before the trier of fact must be interpreted in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The trial judge had before him the statement that appellant “failed to report for induction” which, under the law, must be considered as evidence that in fact the appellant did not appear. Such evidence was uncontradicted. The appellant chose not to take the stand nor offer any evidence in his own defense. Under the circumstances, we cannot say there was insufficient evidence for the court to find beyond a reasonable doubt that the appellant failed to appear as ordered.

1 . Knudsen, on its facts, would have been decided differently in this circuit. There, the failure to appear was apparently seen by two enlisted men who reported to a Captain who in turn, without affirmative proof of personal knowledge, stated the fact of non-appearance in a letter which was part of Knudsen’s Selective Service file. As the enlisted men can be considered subordinates reporting to the official who makes his report, the report would be admissible. See Olender v. United States, 210 F.2d 795, 801 (9th Cir. 1954).

2 . The general thrust of admissibility for government records appears to be a type of presumptive cloak of validity because they are assumed ordinarily to be reliable. Wong Wing Foo v. McGrath, 196 F.2d 120, 123 (9th Cir. 1952) 5 Wigmore on Evidence § 1632 (3d ed. 1940).

3 . If the entrant did not in fact observe the failure to appear, appellee could obviate this difficulty by producing and providing the necessary foundation for a Selective Service form No. 261 upon which the roll is taken at the place designated for induction. See 32 C.F.R. §§ 1632.15 and 1632.20. See also Kariakin v. United States, 261 F.2d 263, 265-66 (9th Cir. 1958). As an alternative theory, Professor Wigmore argues for the position that when the entrant has a duty to ascertain the facts about which the entry is made, his failure to observe the facts personally does not make the entry inadmissible. 5 Wigmore, supra, §§ 1635, 1638.

4 . See also LaPorte v. United States, 300 F.2d 878, 882 (9th Cir. 1962). Some cases have apparently extended the rule further. See United States v. Harris, 446 F.2d 129 (7th Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 533, 30 L.Ed.2d 546 (1971), where a letter which asserted defendant did not report for alternative civilian work was held admissible as part of his Selective Service file; Holmes v. United States, 387 F.2d 781 (7th Cir.), cert. denied, 391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856 (1968), where a letter sent by the local board to a hospital requesting a statement that defendant refused alternative service and subsequently returned with an unsigned, undated notation that the hospital had no knowledge of defendant was held admissible as part of his file.

5 . Similarly, under § 1732 there is an exception to the requirement that the writer observe the described act when the document sought to be introduced qualifies as a business record and a subordinate, who had first-hand knowledge, had made an oral or written report to the entrant in the regular course of business. LaPorte v. United States, supra, 300 F.2d at 881.