United States v. Ream

• Decision Date: 29 March 1974
• Docket Number: No. 73-2742.,73-2742.
• Citation: 491 F.2d 1243
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard John REAM, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.2d 1243 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Richard John REAM, Jr., Defendant-Appellant.

No. 73-2742.

United States Court of Appeals, Fifth Circuit.

March 29, 1974.

James M. Simons, Austin, Tex. (Court-appointed), for defendant-appellant.

William S. Sessions, U.S. Atty., Jeremiah Handy, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Appellant Ream was convicted of failing to remain in civilian alternate service for twenty-four months in violation of The Military Selective Service Act of 1967, 50 U.S.C.App. §§ 456(j), 462. He asserts as error: (i) the trial court's failure to hold an evidentiary hearing on certain defense motions, (ii) insufficiency of the evidence to support his conviction, and (iii) improper admission of certain government records into evidence. Finding these contentions to be without merit we affirm.

Richard John Ream, Jr. registered with his local draft board at Big Springs, Texas, on November 25, 1964. On January 14, 1965 he was given a 1-S(H) classification which exempted him from service on the basis of a high school deferment. Subsequently, appellant underwent a physical examination and was found qualified for military service on February 5, 1968. Appellant then wrote his draft board stating he was a conscientious objector and he was mailed the appropriate conscientious objector forms. Appellant returned the forms and on November 13, 1969, after a personal interview before the board, he was classified 1-A. Pursuant to an appeal, the local draft board reclassified appellant 1-O.¹

Classification as 1-O committed appellant to select non-combat related employment as a means of fulfilling his military obligations. 32 C.F.R. § 1660.5. Instead of selecting employment with an agency designated as suitable by the State Director, he began work at the Travis State School for the Mentally Retarded in Austin, Texas as a full-time attendant, notifying his local draft board of his alternate service selection sometime thereafter. He was subsequently informed on December 20, 1970, that employment at the Travis State School would meet the requirements of the Selective Service System for employment of conscientious objectors.

Appellant worked for the Travis State School for approximately 13 months until October 10, 1971, when he left the institution having 10 months remaining on his service obligation. On January 9, 1973, an information was filed against appellant by the FBI and on March 29, 1973, an indictment was returned by the grand jury charging him with failing to remain in civilian alternate service for twenty-four consecutive months in violation of 50 U.S.C.App. §§ 456(j), 462.

DENIAL OF APPELLANT'S MOTIONS WITHOUT AN EVIDENTIARY HEARING

Composition of Jury

Appellant contends the trial court's denial of his motion for discovery was an abuse of discretion in violation of his Fourteenth Amendment rights. This motion was designed to obtain certain information such as the age of all persons on the grand jury which had indicted him. Such information appellant hoped would support his allegation that discrimination against persons 18-26 years old caused the grand jury to be improperly constituted. Since we have many times ruled that exclusion of such ages pending the emptying and refilling of the master jury wheel is not a constitutional or statutory violation, United States v. Pentado, 5 Cir., 1972, 463 F.2d 355, cert. denied, Noa v. United States, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271; United States v. Blair, 5 Cir., 1972, 470 F.2d 331, cert. denied, Crews v. United States, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197; United States v. Gooding, 5 Cir., 1973, 473 F.2d 425, the denial of the discovery motion could not be said to have prejudiced appellant's case in any way.

Challenging Prosecutorial Discrimination

Appellant further contends that the trial court abused its discretion when it denied those portions of his motion for discovery and motion to dismiss which related to his contention of improper prosecutorial intent. The crux of appellant's contention was that he was being discriminatorily prosecuted because of his anti-war activities. At no time before, during, or after the trial did appellant introduce or proffer any evidence or any affidavits of any persons which would support these assertions. His reliance on the recent Seventh Circuit case of United States v. Falk, 1973, 479 F.2d 616 (en banc) is not enough. Whatever doubts we might have — and they are not small ones — about that decision in light of the Executive's exclusive prerogative in commencing, maintaining, or terminating prosecutions, United States v. Cox, 5 Cir., 1965, 342 F.2d 167 (Brown, J., specially concurring), cert. denied, Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700.² Falk indicates an evidentiary hearing need be held only when a defendant presents facts sufficient to raise a reasonable doubt about the prosecutor's motive. 479 F.2d at 620-621.

INSUFFICIENCY OF THE EVIDENCE

Appellant's second claim of error, insufficiency of the evidence, will be determined by resolution of his third claim that certain records were improperly admitted into evidence by the trial judge. With these records there is ample support for the conviction. Without some of them the government will have failed to prove a prima facie case.

Admissibility of Board Records

The records whose admission is being challenged consist of appellant's draft registration card, selective service file, and employment records from the Travis State School for the Mentally Retarded. Appellant contends authentication of these records was lacking because the persons through whom the records were introduced at trial did not have proper custody or control. Although at issue was appellant's compliance with orders of Local Board 71 located at Big Springs, the draft registration card and selective service file were introduced into evidence through Ms. Emily Barron, Executive Secretary for Local Boards Nos. 119, 120, and 132 located in Austin, Texas, the site of the trial some 290 miles from Big Springs. She testified that these were the original records of which she was deemed the legal custodian for purposes of the trial, and that they had been forwarded to her by Local Board 71, of Big Springs, Texas, appellant's draft board. Appellant's counsel made no objection to the admission of these records when they were offered into evidence even though given the opportunity. He did object later on to their admission during his cross-examination of the witness when he apparently became aware that the witness was only a "sponsor" of the records. He now contends that an adequate predicate was not laid since Ms. Barron was not the Executive Secretary of Local Board 71, she did not know if the files were accurately kept, and she was not present when any entry in the files was made.

Going to the merits we think these records were admissible. F.R.Crim.P. 27 incorporates F.R.Civ.P. 44³ which allows proof of business records. In addition they are admissible under 28 U.S.C. § 1733 as proof of an official document.⁴ Authentication of the papers as government records is supplied by 32 C.F.R. § 1606.35(a)⁵ which makes the employee of the Selective Service System producing the records the custodian thereof. Furthermore, the trustworthiness of Selective Service records comes from the fact that regulations are precise as to how and in what order a draftee's file must be kept. 32 C.F.R. § 1621.8,⁶ for example, states that "Every paper pertaining to the registrant, * * * and such other papers and documents as may be designated by the Director of Selective Service shall be filed in his Cover Sheet until authorization to remove it has been received from the Director of Selective Service." More specific filing instructions are given in the "Registrant Processing Manual", a handbook for local board procedures issued by the National Director of the Selective Service System. In addition, § 1626.13 requires the local board to carefully check the registrant's file to make certain the file is complete and in order prior to forwarding it to the Appeal Board. The sponsor of the...