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United States v. Holmes

November 20, 1967


Duffy, Senior Circuit Judge, and Fairchild and Cummings, Circuit Judges. Fairchild, Circuit Judge (dissenting).

Author: Duffy

DUFFY, Senior Circuit Judge.

This is an appeal from a judgment of conviction for failing to report for civilian work at the Elgin State Hospital, Elgin, Illinois, in violation of Section 12, Universal Military Training & Service Act, 50 U.S.C.App. § 462.

The defense is unusual. Defendant does not question his classification as a conscientious objector. He makes no claim that he did report, for civilian work or otherwise, at the Elgin State Hospital. He does not deny that he repeatedly advised his Selective Service Board that he would not report for civilian work.*fn1

The defendant urges four major arguments. First, the evidence produced by the Government was not legally sufficient to prove that the defendant did not report for civilian duty at the Elgin State Hospital. Second, the trial court erroneously admitted hearsay evidence. Third, his rights under the Fifth, Sixth, Thirteenth and Fourteenth Amendments to the Constitution of the United States were violated. Fourth, the procedural rights guaranteed by Matter of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) were denied him.

Defendant waived a trial by jury and entered a plea of not guilty. At the trial, the entire Selective Service file of the defendant was received in evidence over the objection that the contents were hearsay.

Defendant urges that Government Exhibit B-61 should not have been received in evidence. This was an original typewritten letter from Selective Service Board 132, Morris, Illinois, addressed to Elgin State Hospital. The letter states that the defendant, Mr. Albert H. Holmes, was ordered to report on February 21, 1966, for civilian work at the hospital, and that he had stated his refusal to do so. The Local Board clerk makes a request that a statement be submitted (by the hospital) to that effect.

Appearing beneath the signature of the clerk of Local Board No. 132, in a different style of type, appears the notation "This office has no knowledge of the above-named ever appearing at this office for an interview." A stamp of the Local Board dated March 1, 1966, appears at the bottom of the face of Exhibit B-61. On the reverse side there appears the stamp "Received, Hospital Post Office, '66 Feb. 23, a.m. 8:39 -- Elgin State Hospital."

It is apparent that the hospital official, instead of sending a separate response to the inquiry of the Board, gave the information by the notation on the Board's original letter, that the hospital officials knew nothing of the defendant. If the defendant had reported to the hospital as ordered, the Board would have been so informed.

The notation by the hospital was, in fact, a direct reply to the inquiry addressed to the Elgin State Hospital. The hospital stamp indicates clearly the Board's inquiry was received two days after the date of the inquiry. The stamp of the Local Board shows the reply from the hospital was received by the Board on March 1, 1966. The entire exhibit was properly placed in defendant's file. The authenticity and custody of the file was established by John T. Seigle, Assistant Chief of the Field Division of the Illinios Selective Service. This was proper under Rule 44(c), Federal Rules of Civil Procedure (Rule 27 of the Federal Rules of Criminal Procedure makes Rule 44 of the Federal Rules of Civil Procedure applicable to criminal trials) and 32 C.F.R. 1606.35(a) which provides in part "Any officer or employee of the Selective Service System who produces the records of a registrant in court shall be considered the custodian of such records for the purposes of this section." United States v. Ward, 173 F.2d 628, 629 (2 Cir., 1949); Prohoroff v. United States, 259 F.2d 694, 695 (9 Cir., 1958), cert. den. 359 U.S. 907, 79 S. Ct. 583, 3 L. Ed. 2d 572 (1959).

In La Porte v. United States, 300 F.2d 878, 880 (9 Cir. 1962), the notation "Did not report" made by an official of a state charitable agency upon Selective Service Form 153 was held admissible under the provisions of 28 U.S.C. § 1732, as an entry made in the regular course of business of the charitable agency.

In La Porte, at page 881, the Court also found the notation admissible as an official record of the Selective Service system under 28 U.S.C. § 1733, "* * * Since those who observed and recorded defendant's failure to report acted as ad hoc officials of the Selective Service System." The Court also found an alternative ground of admissibility in the common law exception to the hearsay rule established for official statements, considering the officials of the charitable agency to be state or county officials.

We hold it was not error to have received defendant's selective service file into evidence. Pardo v. United States, 369 F.2d 922, 926 n. 7 (5 Cir., 1966); United States v. Borisuk, 206 F.2d 338, 340 (3 Cir., 1953); United States v. Ward, 173 F.2d 628, 630 (2 Cir., 1949). Furthermore, the items in that file postdating the time of classifying defendant 1-O (conscientious objector) would be admissible if individually considered under the Federal Official Records Act, 28 U.S.C. § 1732 and § 1733.

Since we have decided that the Selective Service File and Exhibit B-61 were admissible in the trial court, defendant's argument that his Sixth Amendment right to confront the ...

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