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United States v. Rogers

December 7, 1971


Kiley, Cummings, and Stevens, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

Defendant, a Selective Service registrant, had been classified as a conscientious objector. He was indicted for failure to report for civilian work "contributing to the maintenance of national health, safety or interest" at Evanston Hospital Association, Evanston, Illinois, in violation of 50 U.S.C. App. §§ 456(j) and 462. After a bench trial, defendant was found guilty and received a suspended sentence of two years. He was placed on probation for two years and six months on condition that he report for work at the Evanston Hospital or such other institution as might be approved by the district court.

At the trial, Lt. Col. John T. Seigle of the United States Air Force, who is assigned to the Illinois Selective Service System in Chicago, identified defendant's Selective Service file and testified that he had read it and that it was kept in the ordinary course of business of the Selective Service System. In support of the admissibility of this file, the Assistant United States Attorney relied upon 32 C.F.R. § 1606.35(a).*fn1 Over the objections of defense counsel, the district court received the Selective Service file into evidence. By referring to the file, Lt. Col. Seigle then testified in detail as to defendant's Selective Service record.

Defendant's Selective Service file, as discussed in Lt. Col. Seigle's testimony, showed that he had registered on March 29, 1967, and had received a II-A classification while studying welding in a trade school. After his student status expired, defendant was notified that he had passed his physical examination. He was subsequently classified I-O as a conscientious objector in view of his views as a Jehovah's Witness. His local board then sent him SSS Form 152 explaining the civilian work obligation of conscientious objectors, and he was invited to select one of three work assignments.

On March 6, 1969, defendant advised his local board "I will accept civilian work if not affiliated with going into the Army or Army Hospitals." However, on April 4, 1969, he advised his board that "I will not be able to perform any services submitted to me by the Local Board." His board asked him the following question at its July 17, 1969, meeting: "Will you or will you not accept civilian work in lieu of induction?" Defendant replied, "No, As I explained, it would be against my religion."

On August 14, 1969, the local board ordered defendant to report to it on August 27, 1969, for assignment to hospital work at the Evanston Hospital Association. On that date defendant appeared at the office of his local board and told its clerk that he did not know if he would report to the hospital or not. The clerk told him that he must report to the hospital within 48 hours, and defendant replied that he would talk it over with his folks who did not want him to report to Evanston Hospital "as they said it was an induction order."

On September 5, 1969, defendant wrote his local board, "If I am to follow Jesus Christ, and the Early Christians, I am not to accept the job that you offered me. But if I accept I would be denouncing Jehovah as the supreme ruler." The board received this letter on September 8, and it thereupon wrote Evanston Hospital to inquire whether defendant had reported for civilian work on August 27. However, on September 5, 1969, before the board sent this inquiry, the Evanston Hospital had written to the local board on SSS Form 153 advising that defendant had not reported for civilian work as of that date. This statement bore the rubber-stamped facsimile signature of Thomas L. Gilmartin. His hand-written title was given as "Employment Mgr." This statement was received by the local board on September 10, 1969. This indictment followed in due course.

Defendant's principal argument is that the trial court erred in receiving in evidence the "statement of employer" portion of SSS Form 153 showing that defendant had not reported for civilian work at Evanston Hospital as of September 5, 1969. Defendant first claims that the facsimile signature of the hospital employment manager, Thomas L. Gilmartin, violated 32 C.F.R. § 1606.24, which provides:

"Signatures affixed to official papers of the Selective Service System must be written in pen and ink by the person signing. Rubber stamp facsimiles will not be used."

Failure to comply with this regulation, argues the defendant, renders the relevant portion of SSS Form 153 invalid and inadmissible.

The Government responds that this regulation was directed at the employees of the Selective Service System rather than outside personnel of civilian work employers who would not be familiar with such a regulatory requirement. Thus the Government's position is that there could be no violation of a regulation by those persons to whom it does not apply.

However plausible the Government's interpretation may be, even if there were non-compliance with 32 C.F.R. § 1606.24, that, without resultant prejudice, would no more bar the document's admission than render it invalid. See United States v. Lawson, 337 F.2d 800, 812 (3d Cir. 1964), certiorari denied, 380 U.S. 919, 85 S. Ct. 913, 13 L. Ed. 2d 804; United States v. Cralle, 415 F.2d 1065, 1067 (9th Cir. 1969). This official document was entitled to the presumptions of regularity and validity, not overcome here by probative evidence to the contrary. Rhyne v. United States, 407 F.2d 657, 660-661 (7th Cir. 1969); Greer v. United States, 378 F.2d 931, 933 (5th Cir. 1967). Hence if the SSS Form 153 falls within an applicable exception to the hearsay rule, failure to follow what we consider here to be a precatory regulation does not make the document inadmissible.

Defendant next argues that the employer's statement on the SSS Form 153 is inadmissible hearsay. In United States v. Holmes, 387 F.2d 781, 783-784 (7th Cir. 1967), we held that such statements, even though not qualified by testimony from a hospital representative, fall within the business and official records statutory exceptions to the hearsay rule (28 U.S.C. §§ 1732 and 1733). We find no significant factual difference between this case and the Holmes ...

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