United States v. Lavin

• Decision Date: 05 June 1973
• Docket Number: Docket 72-2028.,No. 519,519
• Citation: 480 F.2d 657
• Parties: UNITED STATES of America, Appellee, v. Gregory Crawford LAVIN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

480 F.2d 657 (1973)

UNITED STATES of America, Appellee, v. Gregory Crawford LAVIN, Appellant.

No. 519, Docket 72-2028.

United States Court of Appeals, Second Circuit.

Argued January 18, 1973.

Decided June 5, 1973.

M. James Spitzer, Jr., New York Civil Liberties Union, New York City, for appellant.

George E. Wilson, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., Peter L. Truebner and Richard J. Davis, Asst. U. S. Attys., New York City, on the brief) for appellee.

Before FRIENDLY, OAKES and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

Gregory Crawford Lavin appeals from a judgment of conviction entered June 9, 1972 following a nonjury trial in the Southern District of New York, Milton Pollack, District Judge, 346 F.Supp. 76 (S.D.N.Y.1972), for refusing to submit to induction into the Armed Forces of the United States, in violation of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) (1970), and 32 C.F.R. § 1632.14 (1972).

On appeal, appellant raises two claims of error, each of which was considered and rejected by the district court: (1) that his Selective Service file, which was the basis for the government's case, was not properly authenticated and therefore was erroneously admitted in evidence; and (2) that he was denied the required consideration by his local board of an alleged medical defect. For the reasons below, we affirm.

I.

On February 26, 1970, appellant, at the time a college senior with a 2-S (full-time undergraduate college student) draft classification, was given a pre-induction physical examination. Pursuant to that examination, he was recalled for specialty consultations on June 1, 1970, at which time he was seen by a cardiologist and an ophthalmologist. The result of the examination and consultations was that he was found acceptable for induction into the Armed Forces.

During March and April of 1970, appellant had applied for reclassification as a conscientious objector. That claim was denied on August 20, the local board having concluded that he opposed only the war in Southeast Asia. He was reclassified from 2-S to 1-A (available for military service).

Following an unsuccessful appeal of that reclassification, appellant was ordered on December 14 to report for induction on December 28. He complied with that order to the extent of reporting to the Armed Forces Examining and Entrance Station in New York City where he was given another physical examination. He again was found acceptable for induction. When called upon to step forward, however, he refused to submit for induction.

On August 13, 1971, appellant was charged in a one count indictment with refusing to submit for induction. He waived jury trial. The case was tried before Judge Pollack on May 17 and 18, 1972. The government introduced appellant's Selective Service file and called a number of witnesses.¹ Appellant did not testify and offered no evidence. On June 9, the court filed a written opinion finding appellant guilty as charged. On August 16, he was sentenced to two years imprisonment, six months to be served in a jail-type institution and the balance suspended. A two year probation term was also imposed to commence upon his release from confinement, during which he is required to secure and hold employment of national importance, to the satisfaction of the Probation Officer. He has been enlarged on bail pending appeal.

Although appellant urged a number of legal grounds in the district court² in support of his motion for acquittal, all of which were carefully considered and rejected by Judge Pollack in his well reasoned opinion, appellant raises on appeal only the two claims of error stated above, to which we now turn.

II.

Appellant's first contention is that the district court erred in admitting in evidence his Selective Service file on the basis of an authentication by an employee of the New York City, rather than the New York State, Selective Service System.

To prove the essential elements of its case, the government relied largely on appellant's Selective Service file. To establish the required foundation for the file, the government called Mrs. Kathryn Broadhurst to authenticate it. She had been employed by the New York City Selective Service System for 28 years. Appellant, having registered originally in Peekskill, New York, was a registrant of a local board there which was included in the New York State Selective Service System. The applicable regulation clearly provides that the City system is not a component of the State system, the two being in all respects independent of each other.³

Mrs. Broadhurst identified appellant's registration card and other documents in the file as records which were made, received and kept in the regular course of business of the local board and she testified that it was the regular course of business of the local board to make, receive and keep such records. She admitted, however, that she had no personal knowledge of the documents in the file or of their genuineness; that her knowledge of the contents of the file was based on her examination of the file and her familiarity with Selective Service System practices; and that she had never seen the file prior to the afternoon of May 17, 1972, the date on which she appeared as a witness.⁴

Appellant argues from these facts that his file was never properly authenticated, because Mrs. Broadhurst, the witness presented at the trial as the custodian of the file, was not the proper custodian within the meaning of the law.

Under the applicable Selective Service regulation, 32 C.F.R. § 1606.35(a) (1972), "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 purpose of this section." (emphasis added). This provision broadens the class of persons who may authenticate such records under the federal statute and rules⁵ so as to include officers and employees of the Selective Service System other than those with actual permanent custody over, and familiarity with, a registrant's records. See, e. g., Yates v. United States, 404 F.2d 462, 466-67 (1 Cir.1968), cert. denied, 395 U.S. 925 (1969).

The question presented here is whether an employee of the Selective Service System other than a person employed by the local board where the registrant's file was maintained may authenticate that file once it has been removed from a continuous chain of custody within the Selective Service System — here, removed solely for the purpose of placing it in the custody of the Assistant United States Attorney in charge of the criminal case. While the decisions that have dealt with the general problem of authentication of Selective Service records uniformly have adopted a liberal interpretation of Section 1606.35(a), none has faced this precise issue.

In Yates, the defendant originally had registered with a local board in South Carolina. When ordered to report for induction, he requested a transfer of induction to Boston where he then lived. Upon his refusal to submit to induction, he was indicted and tried in Massachusetts. At trial, his Selective Service file, which had been maintained in South Carolina, was offered in evidence by the government through the Deputy Director of Selective Service for Massachusetts, who testified that (1) the file was an official government record; (2) that he was the custodian of the file; and (3) that the material contained therein was made and kept in the ordinary course of Selective Service business. The Court of Appeals, in rejecting the defendant's contention that the jurisdiction of the witness was limited to Massachusetts whereas the file had been maintained in South Carolina, held, first, that under the regulation (Section 1606.35(a)) the Massachusetts Deputy Director was properly considered the custodian of the file, he being an officer of the Selective Service System; and, second, that his status as custodian was not defeated simply because he had no personal knowledge of the substance of the file: "A custodian of records is not obliged to possess personal knowledge of the content of the file. He need only authenticate its source." 404 F.2d at 467.

Other cases involving similar facts have reached like results. In United States v. Rogers, 454 F.2d 601 (7 Cir.1971), for example, the defendant's file was held properly authenticated by an Air Force Lt. Colonel assigned to the Illinois Selective Service System who had testified only that he had read the file and that it had been kept in the ordinary course of the System's business. Numerous other cases (including those cited below by Judge Pollack, 346 F. Supp. at 83) have sanctioned authentication by state supervisory personnel who lacked knowledge of the precise record-keeping methods utilized by the registrant's local board. E. g., United States v. Holmes, 387 F.2d 781, 783-84 (7 Cir.1967), cert. denied, 391 U.S. 936 (1968); Pardo v. United States, 369 F.2d 922, 925-26 (5 Cir. 1966). Cf. United States v. Ward, 173 F.2d 628 (2 Cir. 1949) (clerk in Office of Selective Service Records).⁶

The rationale of these cases is unmistakable — that the peculiar administrative problems of the Selective Service System justify some relaxation of the strict rules of authentication in order to avoid undue disruption of the System with little or no benefit to the defendant. The wisdom of that policy is well exemplified here where the file gives no hint of unreliability and appellant does not challenge the regularity of anything contained therein. In cases of this sort, therefore, the courts uniformly have sanctioned authentication of a file, as the regulation provides, by "any officer or employee of the Selective Service System" (emphasis added) — not limited to those employees assigned either to the particular local board where the registrant's file is maintained or to the state system with jurisdiction over that local...