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.
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
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.
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
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
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.
We will now consider the first of the two assignments of error under which it is asserted that essential elements of proof of appellant's guilt was not established. Title 32 C.F.R. Section 1660.30 provides as follows:
Appellant does not contend the Selective Service Regulation 1660.30 was not followed, but argues rather that there was no competent evidence before the trial court that the National Director of Selective Service had given this case the necessary and required pre-prosecution determination. Included in appellant's selective service file and appearing as the first page of that file is a letter from the National Director of Selective Service to the California State Director of Selective Service, bearing stamp date August 22, 1958. The letter relates to the appellant, and in relevant part is as follows:
It is this letter to which appellant interposed the objection that it was not authenticated and that foundation for receipt thereof was lacking. Appellant argues that this letter was not a part of appellant's selective service file at the
(1) The first two pages of the 187-page file are not numbered. Pagination commences with page 3 and continues to and including page 187. The challenged letter is the first of the two unnumbered pages. It is page 1 of the file, even though not numbered as such.
(2) That the only other letter in the file from Washington headquarters to Sacramento headquarters of the Selective Service bears no receipt stamp by the Sacramento office.
(3) That at least 13 other pages of the file show punch holes similar to the punch holes on the letter in question.
In our view, under the circumstances of this case, the facts that the questioned letter bears no pagination, bears no receipt stamp by the Sacramento office, and contains punch holes, do not compel the conclusion that the challenged letter was not a part of appellant's selective service file, or that the letter was included in the file after certification. In our view, the entire selective service file which was received in evidence was properly authenticated and no error was committed by the district judge in receiving into evidence as a part of such file the challenged letter. Since appellant concedes that if the challenged letter was properly received into evidence full compliance with the provision of Title 32 C.F.R. Section 1660.30 would be established, it becomes unnecessary for us to consider appellant's objection to the receipt in evidence as a part of appellant's selective service file, page 186 thereof, to which objection was made only on the ground that such letter violated the hearsay rule.
The second error which appellant asserts under his first assignment of error is that there is no proof that the Selective Service Regulations were followed in respect to the requirement that three valid types of civilian work be submitted to the appellant. In order to decide this point it is necessary to summarize the pertinent regulations. Title 32 C.F.R. Section 1660.20(a) provides that the registrant in class I-O found acceptable for service may submit to the local board three types of civilian work which he offers to perform in lieu of induction. Appellant made no such submission to the local board. Section 1660.20(b) provides that where (a) is not fulfilled then
In the instant case the local board offered to appellant three types of civilian work in lieu of induction, and appellant refused to perform any of the types of work listed, but stated that because of religious convictions he could not accept the offer to perform any civilian service. Section 1660.20(c) provides that:
Pursuant to this section appellant was notified of the meeting which subsequently took place with the state representative, the local board and appellant being present. At the meeting appellant was offered other civilian work to be performed in lieu of induction, but refused to accept any civilian employment. 1660.20 (d) provides that if after the meeting referred to in (c) the local board and the registrant are still unable to agree on a type of civilian work which should be performed by the registrant in lieu of induction, the local board, with the approval of the Director of Selective Service, shall order the registrant to report for civilian work contributing to the maintenance of the national health, safety or interest, as defined in section 1660.1, which it deems appropriate. As no agreement could be reached between appellant and the local board, the board, following the provisions of 1660.20(d), ordered appellant to report to the Los Angeles County Department of Charities after approval by the National Director. Section 1660.1 (a) (2) (b) defines civilian work to be proffered:
Appellant argues that the two private charities, Goodwill Industries of San Jose, California, and Goodwill Industries, Los Angeles, California, are not sanctioned by the regulations and therefore that appellant was given only one acceptable choice, to-wit, Department of Charities, County of Los Angeles. On this point appellant relies primarily upon United States v. Copeland, D.C.Conn. 1954, 126 F.Supp. 734. The views expressed in the Copeland decision are expressly rejected in United States v. Hoepker, 7 Cir., 1955, 223 F.2d 921, 923, certiorari denied 1955, 350 U.S. 841, 76 S.Ct. 81, 100 L.Ed. 750, the court saying:
Both in Copeland and Hoepker the registrant had been ordered to a private charity. In the instant case private charities were merely two of the options offered to appellant. It is to be noted that the appellant was ordered to report to the Los Angeles County Department of Charities, which has been adjudged competent as civilian employment in lieu of induction. United States v. Niles, D.C.D.C.N.D.Cal. 1954, 122 F.Supp. 382, affirmed 9 Cir., 1955, 220 F.2d 278, certiorari denied 1955, 349 U.S. 939, 75 S.Ct. 784, 99 L.Ed. 1267; Klubnikin v. United States, 9 Cir., 1955, 227 F.2d 87, certiorari denied 1956, 350 U.S. 975, 76 S.Ct. 453, 100 L.Ed. 846.
In our view the three types of civilian work offered appellant by the local board were in substantial compliance with Selective
The trial court did not err in denying appellant's motion for acquittal made on the basis that the government had failed to establish a prima facie case, inasmuch as there is sufficient evidence to establish all the essential elements of appellant's guilt.
We will now consider appellant's second specification of error that he was denied procedural due process in that the local board failed to have available advisers to registrants, and to post conspicuously the name of such adviser. Appellant's present difficulties arose when he was reclassified I-O on November 15, 1956. At that time the pertinent regulation, 32 C.F.R. Section 1604.41, which became effective January 1, 1955, is as follows:
The regulation prior to its amendment stated that advisors to registrants shall be appointed. The mandatory word shall was omitted from the present regulation, and the permissive word may was inserted in lieu thereof. See Uffelman v. United States, supra, wherein it is stated that the appointment of advisers has been discretionary and not mandatory since January 1, 1955. Moreover, should we disregard the permissive nature of the regulation, appellant has shown no prejudice that resulted to him because of the absence of advisers. Procedural irregularities or omissions that do not result in prejudice to the registrant are to be disregarded. Uffelman v. United States, supra; Kaline v. United States, supra; Rowton v. United States, 6 Cir., 1956, 229 F.2d 421, certiorari denied 1956, 351 U.S. 930, 76 S.Ct. 788, 100 L.Ed. 1460; United States v. Mekolichick, 3 Cir., 1956, 234 F.2d 71, certiorari denied 1956, 352 U.S. 908, 77 S.Ct. 147, 1 L.Ed.2d 117. It is to be noted that appellant first registered for the draft in 1951. From his selective service file it appears that he was thoroughly familiar with procedure relating to the selective service. We are unable to see what help an adviser could have furnished to appellant in view of appellant's intransigent attitude in refusing any type of civilian employment. It is to be noted that appellant inspected the bulletin board at the local draft board office but found no list of advisers posted, hence he knew that advisers might be made available, but he never requested the name or service of any such adviser. See United States v. Mekolichick, supra, wherein it is stated, at page 73:
We hold that appellant's claim of denial of procedural due process under the facts herein recited is without merit.
Following the decision of the district court finding the appellant guilty of the offense charged, the record discloses the following:
It is the position of the appellant that the court's failure to afford appellant an opportunity to make a statement in his own behalf constitutes a violation of Rule 32(a) and thereby invalidates the sentence imposed. The record discloses that counsel was given full opportunity to present arguments to the court that a probationary sentence should be imposed on appellant. Counsel for appellant stated that "the defendant might wish to make some comment if the court would wish." The court indicated it did not wish appellant to do so, whereupon no further effort was made by either appellant or his counsel to request an opportunity for appellant to make a statement. Thereafter counsel for appellant on two occasions stated there was no legal reason why judgment should not be pronounced. Under such circumstances there was a waiver of any right appellant may have had to make a statement. As noted in Kennedy v. United States, 5 Cir., 1958, 259 F.2d 883, at page 886, certiorari denied 1959, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982: "The * * * asserted failure to call upon appellant to make a statement in his own behalf are matters which can be waived by the accused, and such waiver if made by counsel is binding on him." In our view, under the record in this case, the provisions of Rule 32(a) were not violated or ignored by the district court.
The judgment of conviction is affirmed.
"(a) Any * * * person charged as herein provided with the duty of carrying out the provisions of this title [sections 451-470 of this Appendix], or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment. * * *"
1. Institutional helper, County of Los Angeles, Department of Charities, Los Angeles, California;
2. Dock work, Goodwill Industries, San Jose, California;
3. Truck driver helper, Goodwill Industries, Los Angeles, California.
"(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.
"(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof."
"(a) Authentication of Copy. An official record 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 with a certificate that such officer has the custody. * * *"
"An official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions."