United States v. Lloyd, 25337.

• Decision Date: 28 August 1970
• Docket Number: No. 25337.,25337.
• Citation: 431 F.2d 160
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Owen LLOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

431 F.2d 160 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Owen LLOYD, Defendant-Appellant.

No. 25337.

United States Court of Appeals, Ninth Circuit.

August 28, 1970.

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James G. Seely, Jr. (argued), Nathan S. Smith, San Francisco, Cal., Daniel Owen Lloyd, for appellant.

Coleman Besee (argued), Ass't. U. S. Atty., James L. Browning, U. S. Atty., F. Steele Langford, Ass't. U. S. Atty., Jerrold M. Ladar, Chief, Criminal Division, San Francisco, Cal., for appellee.

Before HAMLEY, DUNIWAY and WRIGHT, Circuit Judges.

DUNIWAY, Circuit Judge:

Lloyd was convicted of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C.App. § 462 and he appeals. He raises a number of questions, each of which we consider separately.

1. Trial solely on the Selective Service File — Right to Confrontatation.

The charge was refusal to submit to induction, having been ordered to report for induction and having reported as ordered and been found qualified. (50 U.S.C.App. § 462.)

The trial court instructed the jury that the only questions for it to decide were whether Lloyd "failed to submit for induction into the Armed Forces of the United States, after he had reported as ordered by the Local Board," and whether "the omission or failure to submit was wilfully and knowingly done."

The only evidence offered by the government was a certified and authenticated copy of Lloyd's Selective Service file. No witness testified for the government. The court received the file in evidence as Exhibit 1, and the government rested. Lloyd's counsel objected on the grounds (1) that the procedure violated his right, under the Sixth Amendment, to confront and cross-examine his accusers, and (2) that the documents constitute hearsay. The objection was overruled. The only paper in the file that supports the jury's decision of the limited questions presented to it by the court appears at pp. 37-39 of Exhibit 1. It is a copy of a form letter from a Lieutenant Orr, "Induction Officer" at the armed forces induction center, prepared, as it recites, pursuant to paragraph 40c, AR 601-27 dated 2 August, 1965. It states what happened, in relation to Lloyd, at the induction center. If properly admitted, it fully supports a finding that Lloyd refused to be inducted, knowing that his doing so was a violation of law. The file also contains papers showing that the board ordered Lloyd to report for induction.

Whatever we might think of this manner of proving a criminal charge, as an original proposition, a "solid wall of authority" (United States v. Scott, 9 Cir., 1970, 425 F.2d 55, 57) in this circuit supports the trial court's ruling. Haven v. United States, 9 Cir., 1969, 403 F.2d 384, and cases there cited. Most closely in point are LaPorte v. United States, 9 Cir., 1962, 300 F.2d 878, and Yaich v. United States, 9 Cir., 1960, 283 F.2d 613, 616-618. We are unable to distinguish them. See also United States v. Van Hook, 7 Cir., 1960, 284 F.2d 489, 492-494. No case cited by Lloyd is to the contrary; none involves comparable facts.

2. Denial of right to subpoena witnesses.

Lloyd argues that he was denied the right to have compulsory process for obtaining witnesses in his favor, in violation of the Sixth Amendment. He sought and obtained subpoenas requiring the presence of the three members of the Local Board and of its Clerk and the "production of all books, papers, records, etc., which pertain to the classification and attempted induction of defendant." The court granted the government's motion to quash the subpoenas. The documents, however, were produced, and Lloyd now argues only that the witnesses should have been produced.

The court ruled that the validity of the induction order was for the court, not the jury to decide. It told Lloyd's counsel that if he needed any of the witnesses for the purpose of attacking the validity of that order or of the proceedings of the board leading up to it, the court would hear them. It was agreed that counsel would make a written offer of proof, which was done. The court declined to call the witnesses.

Preliminarily, we observe that we agree that the questions sought to be presented were for the judge, rather than the jury. Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59; United States v. Morico, 2 Cir., 1969, 415 F.2d 138, 142; Kidd v. United States, 10 Cir., 1967, 386 F.2d 422. It may still have been error for the judge to refuse to subpoena any of the witnesses. Whether that is so depends on what it was that counsel sought to prove. His offer is a three page document containing 16 paragraphs.¹ Consideration of these offers will be simplified by a consideration of what type of oral testimony about local board proceedings is appropriate.

Congress has provided, in Section 10 of the Selective Service Act as amended (50 U.S.C. App. § 460(b) (3)), that the local board shall:

"* * * have the power * * * to hear and determine, subject to the right of appeal * * * all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this title said sections, of all individuals within the jurisdiction of such local boards. The decisions of such local board shall be final, except where an appeal is authorized and is taken. * * *"

It has then provided for appeal boards, and that:

"The decision of such appeal boards shall be final * * * unless modified or changed by the President."

There is provision for further appeal to the President, and that "the determination of the President shall be final." The section continues:

"No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title section 462 of this Appendix, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant."

Under the Statute and the Regulations, 32 C.F.R. ch. XVI, the local boards have both quasi-judicial and purely administrative (in many cases ministerial) duties. The classification process is essentially quasi-judicial in character, although there are also procedural regulations designed to facilitate the boards' performance of their quasi-judicial duties.

When Congress, albeit in a somewhat backhand manner, authorized judicial review of classification in a criminal case such as this, it had in mind the usual type of review of a quasi-judicial decision of an administrative body, that is, a review upon the record made by that body. More specifically, Congress did not intend to permit a full-dress trial de novo by either the judge or the jury, of the registrant's proper classification. When Congress spoke of "no basis in fact for the registrant's classification," it meant "no basis in fact" in the local board's record. Thus the court was not required to hear, and it would have been improper for it to hear, testimony as to whether Lloyd was in fact not physically fit, or whether he was in fact a conscientious objector, in passing upon the "basis in fact" issue. It was required to confine itself to Lloyd's Selective Service file. These views dispose of paragraphs 1, 2, relating to the proposed witness Dr. Sedgwick, and paragraph 5, 6, 9, and in part, 14, 15 and 16, relating to other witnesses, in Lloyd's offer of proof.

Moreover, Congress did not authorize the defendant to try the members of the board by calling them as witnesses and examining them about their mental processes in arriving at their classification decisions. It would no more be proper to do that than it would be for this court to subpoena a trial judge, or the members of a jury, on an appeal, and examine him or them as to how they arrived at a decision. These views dispose of paragraphs 1, 2, 3, 4, 11, 12, 13 in part, 14, 15 and 16 of Lloyd's offer of proof relating to witnesses other than Dr. Sedgwick.

Lloyd's paragraph 7 relates to a pure question of law. The same can be said, in part, of paragraphs 8, 9 and 11.

On the other hand, it is proper to offer testimony to show that a local board has not followed the statute or regulations in "processing" a registrant's case, when that fact does not appear from the Selective Service file. Only one paragraph of the offer of proof, paragraph 7, relates to this issue. But it does not state any facts to which any of the witnesses might or would testify. It is therefore insufficient.

This leaves only paragraph 10. It is conceivable that the letter referred to would demonstrate that there was no basis in fact for the medical examiner's decision that Lloyd was physically acceptable. Here, however, there is no showing as to the contents of the letter. It should have been easy for counsel to make that showing, but he did not do so, nor did he make any showing that a copy of the letter was not available to him. For these reasons, it was proper for the court to reject the offer.

3. The trial court's failure to make findings of fact.

As we have seen, the questions submitted to the jury were narrow. It is now argued that, under Rule 23(c), F.R. Crim.P., the trial judge should have made findings of fact on all other issues raised by Lloyd. Proposed findings were submitted. They cover four pages of legal cap, and number 38. They suffer from the same defects as the offer of proof. In general, they refer either to matters that were not properly before the court, or matters that appear from the Selective Service file. As to the former, findings would not be proper; as to...