Yaich v. United States

• Decision Date: 07 December 1960
• Docket Number: No. 16641.,16641.
• Citation: 283 F.2d 613
• Parties: Emil YAICH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 613 (1960)

Emil YAICH, Appellant, v. UNITED STATES of America, Appellee.

No. 16641.

United States Court of Appeals Ninth Circuit.

August 2, 1960.

Rehearing Denied December 7, 1960.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Robert John Jensen, Norwalk, Cal., Minoru Inadomi, Montebello, Cal., Asst. U. S. Attys., for appellee.

Before BARNES, JERTBERG and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant was indicted for knowingly failing and neglecting to report for civilian employment contributing to the maintenance of the national health, safety and interest as ordered by his local draft board in lieu of induction, in violation of Title 50 U.S.C.A.Appendix, § 462.¹ Appellant waived trial to a jury, and following the trial before the district court was found guilty of the offense charged, and thereafter was committed to the custody of the Attorney General of the United States for a period of one year and one day.

Jurisdiction of the district court was invoked under the provisions of Title 18 U.S.C.A. § 3231 and Title 50 U.S.C.A. Appendix, § 462. Jurisdiction of this Court to review the appeal from the judgment rests on the provisions of Title 28 U.S.C.A. §§ 1291 and 1294.

On June 18, 1951 appellant registered with local draft board No. 37 in San Francisco. Shortly thereafter he was sent a classification questionnaire, and on December 27, 1951 appellant was classified I-A by the board. Approximately a year thereafter he was given an armed forces physical examination and was found fully acceptable for induction into military service. However, as appellant was then a full time college student he was given various student deferments until graduation, at which time he was ordered to report for induction on March 2, 1956. Eight days prior to that date appellant sought to change his classification to I-O — that of a conscientious objector to military service of any kind. This request for reclassification was denied, and when appellant reported for induction he refused to submit to induction. This refusal resulted in an indictment charging appellant with violation of Universal Military Training and Service Act. On October 16, 1956, following trial before the court sitting without a jury, the appellant was found not guilty.

Following review of appellant's file, and on November 15, 1956, he was reclassified I-O. Appellant sought to change his classification to IV-D, claiming that he was a full time minister of the Jehovah's Witnesses. Such change in classification was denied by the local board, as it appeared that appellant was only a vacation pioneer and not a full time pioneer. The action of the local board was affirmed by the appeal board following required investigation and hearing by a Department of Justice hearing officer. On April 30, 1958, local board No. 37 offered appellant three types of civilian work in lieu of induction into military service.² Appellant replied to the local board that he did not wish to perform any of the types of work offered on the ground that any one of them would prevent him from exercising his calling as a minister. His refusal was couched in the following terms:

"I must decline the offer to perform a civilian service in lieu of service in the Armed Forces as I have dedicated my entire service to my Creator, Jehovah God. My acceptance of civilian service would present restrictions and most likely prohibit me from fulfilling my dedication vows. * * * In view of the aforementioned, I am certain the Board will agree, that I am bound by my dedication to exclusively serve our Creator, Jehovah God and therefore cannot accept the offer to perform civilian service."

Appellant met with the local board on June 19, 1958 in an effort to reach agreement as to the type of civilian service which appellant might perform in lieu of induction. At the conclusion of the meeting appellant filed a statement stating that he would refuse all types of civilian employment in lieu of induction into the armed services. On July 29, 1958, local board No. 37, on approval of the National Director of the Selective Service System, ordered appellant to report to local board No. 37 on August 12, 1958, for the purpose of receiving instructions to proceed to the Los Angeles County Department of Charities for civilian service in lieu of induction into military service. On August 12, 1958, appellant reported to local board No. 37, received his letter of instructions to proceed to the Los Angeles County Department of Charities, and at that time advised the board in writing "that for reasons of conscience" he was unable to report to the designated civilian employer.

On the same day appellant's selective service file was forwarded by the local board to the California state headquarters, and on the following day such file was forwarded to the National Director of Selective Service, Washington, D. C., to determine whether or not appellant should be reported to the Department of Justice for prosecution pursuant to Selective Service regulations. The National Director of Selective Service determined that appellant's disobedience to report for civilian service in lieu of induction should be reported to the United States Attorney for prosecution under Title 50 U.S.C.A.Appendix, § 462. Appellant was subsequently indicted by the federal grand jury for the Southern District of California.

At the trial of the case, the United States offered in evidence the entire selective service file of the appellant. Appellant objected to the introduction of page 1 of the file, on the ground that it was unauthenticated and lacked foundation, and to the introduction of page 186 of the file on the ground that it was opinion hearsay and inadmissible. The objections were overruled, and the selective service file was received in evidence. At the conclusion of the trial, appellant moved for judgment of acquittal which the district court denied. The district court then found appellant guilty of the offense set forth in the indictment, and denied appellant's request for probationary sentence.

Appellant seeks reversal of the judgment of conviction on three main grounds:

1. That essential elements of proof of appellant's guilt were not established, in that

(a) there was a failure of proof by appellee of compliance with the provisions of Title 32 C.F.R. Section 1660.30, and

(b) there was a failure of proof that three valid types of civilian work were offered to the appellant as required by the provisions of Title 32 C.F.R. Section 1660.20(b).

2. That appellant was denied procedural due process in that the local board failed to have available advisers to registrant and to post conspicuously or any other place the name of such adviser.

3. That the district court ignored the provisions of Rule 32(a) of the Federal Rules of Criminal Procedure, 18 U.S. C.A. at the time sentence was pronounced upon the appellant.

Before considering appellant's first specification of error it may be well to note that as a general rule in prosecutions for violation of the Universal Military Training and Service Act, the selective service file of the delinquent registrant is admissible into evidence as a public document under the provisions of Title 28 U.S.C.A. § 1733.³ Penor v. United States, 9 Cir., 1948, 167 F.2d 553; United States v. Ward, 2 Cir., 1949, 173 F.2d 628; United States v. Borisuk, 3 Cir., 1953, 206 F.2d 338; Kariakin v. United States, 9 Cir., 1958, 261 F.2d 263. The challenged letter is in the form of an inter-departmental memorandum, from the national headquarters of the Selective Service System to the California headquarters of the System. Accordingly, if otherwise admissible, this letter would qualify as a public document and be admissible to prove the truth of the facts therein recited. Vanadium Corporation v. Fidelity & Deposit Co., 2 Cir., 1947, 159 F.2d 105. The mere fact that a document qualifies as a public record, however, does not ipso facto overcome the hearsay objection unless the document relates to an event to which the author of the document could himself testify. This is for the reason that the public documents exception to the hearsay rule is only the substitute for the appearance of the public official who made the record. Olender v. United States, 9 Cir., 1954, 210 F.2d 795, 42 A.L.R.2d 736. Appellant does not question in this case that the author of the challenged letter possessed personal knowledge of the event therein stated. Hence up to this point it is clear the challenged letter is a public document admissible in evidence as such, and in the well recognized exception to the hearsay rule. Appellant's objection to the introduction into evidence of the challenged letter is grounded on the contention that the letter was not authenticated and its receipt in evidence was lacking in foundation. It is true that even though a public document is competent evidence it is not to be received into evidence unless and until it has been authenticated. Under Rule 44, Federal Rules of Civil Procedure, 28 U.S.C.A.,⁴ applicable to criminal prosecution, Rule 27, Federal Rules of Criminal Procedure,⁵ an official record may be evidenced by a copy attested by the officer having the legal custody of the record accompanied with a certificate that such officer has the custody. In this case the photostatic copy of appellant's selective service record which was received in evidence bears the certificate of the administrative officer, California state headquarters for Selective Service, who certifies that the attached record is a full, true and correct copy of the original selective service record of the appellant, and that the originals thereof are on file in the office of the local draft board. The certificate bears the seal of the Selective Service System, California.

We will now consider the first of the two assignments of error under which it is asserted that essential...