United States v. Locke, 28200 Summary Calendar.

• Decision Date: 15 May 1970
• Docket Number: No. 28200 Summary Calendar.,28200 Summary Calendar.
• Citation: 425 F.2d 313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy LOCKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 313 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Billy LOCKE, Defendant-Appellant.

No. 28200 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 20, 1970.

Rehearing Denied May 15, 1970.

Edward E. Crowell, Jr., Dallas, Tex., for defendant-appellant.

Eldon B. Mahon, U. S. Atty., Andrew Barr, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Before THORNBERRY, CARSWELL and CLARK, Circuit Judges.

PER CURIAM:

Appellant was indicted for escape from confinement at the Federal Correctional Institution at Seagoville, Texas, under 18 U.S.C. § 751.¹ Appellant, who was represented by court-appointed counsel, entered a plea of not guilty, but was found guilty by a jury on July 7, 1969. He was sentenced to three years in the custody of the United States Attorney General, the sentence to run consecutively to the sentence he was serving at the time of the escape.

I.

At the trial the government introduced certain exhibits² as proof of the elements of the offense charged against defendant; the elements sought to be proved by the exhibits were (1) a conviction, (2) an escape, and (3) the fact that the escape was from a confinement based upon the conviction. Appellant's basic contentions in this Court are that the government exhibits were not certified and authenticated and thus were not competent proof of the elements of the offense charged and were improperly admitted.

Rule 27 of the Federal Rules of Criminal Procedure provides that an official record may be proved in the same manner as in civil actions. Rule 44 of the Federal Rules of Civil Procedure is thus applicable to this case and provides:

(a) Authentication.

(1) Domestic. An official record kept within the United States * * *, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

None of the first eight exhibits introduced by the government were authenticated or certified in accordance with subsection (a) of Rule 44, and thus appellant argues that the trial judge committed reversible error in allowing those exhibits to be introduced over objection.

Appellant's argument, however, ignores subsection (c) of Rule 44, which states:

This rule does not prevent the proof of official records or of entry or lack of entry by any method authorized by any applicable statute or by the rules of evidence at common law.

Thus, as this Court stated in Pardo v. United States, 5th Cir. 1966, 369 F.2d 922:

* * * a mere showing of noncompliance with the requirements of subsection (a) of Rule 44 does not establish error in the method of introduction * * * At common law, an official record can be properly authenticated by direct testimony of a custodian through whom the record is introduced.

This principle was again asserted in Lowe v. United States, 5th Cir. 1968, 389 F.2d 51, wherein this Court stated:

Colonel Tully, the Deputy State Director, Selective Service System, testified at trial that he brought the records with him and that under the Selective Service regulations he was the custodian of these records. Therefore a proper basis was laid for admitting the documents in question.

In the case before us, Mr. G. W. James, administrative assistant in charge of the records at the Federal Correctional Institution at Seagoville, Texas, testified that he received all commitments and discharged all inmates from the Federal Correctional Institution, which is operated by the Bureau of Prisons of the Department of Justice. Records introduced into evidence as Government Exhibits 1-8 were each identified by Mr. James as an official record of the Bureau of Prisons for the defendant Billy Locke, kept and maintained in...