United States v. Hudson

• Decision Date: 05 July 1973
• Docket Number: No. 72-1757.,72-1757.
• Citation: 479 F.2d 251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Dale HUDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.2d 251 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Dale HUDSON, Defendant-Appellant.

No. 72-1757.

United States Court of Appeals, Ninth Circuit.

December 8, 1972.

Rehearing and Rehearing Denied July 5, 1973.

Jerry E. Berg (argued), Palo Alto, Cal., for defendant-appellant.

Joseph Reeves, Asst. U. S. Atty. (argued), John F. Cooney, Jr., Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., for plaintiff-appellee.

Before LUMBARD,^* HAMLEY and WALLACE, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 5, 1973.

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 Supervisor" of the state director to the local board. The letter indicates that appellant's file was enclosed, states in part that "it 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 entry 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 his 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...