UNITED STATES v. LAVIN

TIMBERS, Circuit Judge:

Gregory Crawford Lavin appeals from a judgment of conviction entered June 9, 1972 following a nonjury trial in the Southern District of New York, Milton Pollack, District Judge, 346 F.Supp. 76 (S.D.N.Y.1972), for refusing to submit to induction into the Armed Forces of the United States, in violation of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) (1970), and 32 C.F.R. § 1632.14 (1972).

On appeal, appellant raises two claims of error, each of which was considered and rejected by the district court: (1) that his Selective Service file, which was the basis for the government's case, was not properly authenticated and therefore was erroneously admitted in evidence; and (2) that he was denied the required consideration by his local board of an alleged medical defect. For the reasons below, we affirm.

I.

On February 26, 1970, appellant, at the time a college senior with a 2-S (full-time undergraduate college student) draft classification, was given a pre-induction physical examination. Pursuant to that examination, he was recalled for specialty consultations on June 1, 1970, at which time he was seen by a cardiologist and an ophthalmologist. The result of the examination and consultations was that he was found acceptable for induction into the Armed Forces.

During March and April of 1970, appellant had applied for reclassification as a conscientious objector. That claim was denied on August 20, the local board having concluded that he opposed only the war in Southeast Asia. He was reclassified from 2-S to 1-A (available for military service).

Following an unsuccessful appeal of that reclassification, appellant was ordered on December 14 to report for induction on December 28. He complied with that order to the extent of reporting to the Armed Forces Examining and Entrance Station in New York City where he was given another physical examination. He again was found acceptable for induction. When called upon to step forward, however, he refused to submit for induction.

On August 13, 1971, appellant was charged in a one count indictment with refusing to submit for induction. He waived jury trial. The case was tried before Judge Pollack on May 17 and 18, 1972. The government introduced appellant's Selective Service file and called a number of witnesses.1 Appellant did not testify and offered no evidence. On June 9, the court filed a written opinion finding appellant guilty as charged. On August 16, he was sentenced to two years imprisonment, six months to be served in a jail-type institution and the balance suspended. A two year probation term was also imposed to commence upon his release from confinement, during which he is required to secure and hold employment of national importance, to the satisfaction of the Probation Officer. He has been enlarged on bail pending appeal.

Although appellant urged a number of legal grounds in the district court2 in support of his motion for acquittal, all of which were carefully considered and rejected by Judge Pollack in his well reasoned opinion, appellant raises on appeal only the two claims of error stated above, to which we now turn.

II.

Appellant's first contention is that the district court erred in admitting in evidence his Selective Service file on the basis of an authentication by an employee of the New York City, rather than the New York State, Selective Service System.

To prove the essential elements of its case, the government relied largely on appellant's Selective Service file. To establish the required foundation for the file, the government called Mrs. Kathryn Broadhurst to authenticate it. She had been employed by the New York City Selective Service System for 28 years. Appellant, having registered originally in Peekskill, New York, was a registrant of a local board there which was included in the New York State Selective Service System. The applicable regulation clearly provides that the City system is not a component of the State system, the two being in all respects independent of each other.3

Mrs. Broadhurst identified appellant's registration card and other documents in the file as records which were made, received and kept in the regular course of business of the local board and she testified that it was the regular course of business of the local board to make, receive and keep such records. She admitted, however, that she had no personal knowledge of the documents in the file or of their genuineness; that her knowledge of the contents of the file was based on her examination of the file and her familiarity with Selective Service System practices; and that she had never seen the file prior to the afternoon of May 17, 1972, the date on which she appeared as a witness.4

Appellant argues from these facts that his file was never properly authenticated, because Mrs. Broadhurst, the witness presented at the trial as the custodian of the file, was not the proper custodian within the meaning of the law.

Under the applicable Selective Service regulation, 32 C.F.R. § 1606.35(a) (1972), "[a]ny officer or employee of the Selective Service System who produces the records of a registrant in court shall be considered the custodian of such records for the purpose of this section." (emphasis added). This provision broadens the class of persons who may authenticate such records under the federal statute and rules5 so as to include officers and employees of the Selective Service System other than those with actual permanent custody over, and familiarity with, a registrant's records. See, e. g., Yates v. United States, 404 F.2d 462, 466-67 (1 Cir.1968), cert. denied, 395 U.S. 925 (1969).

The question presented here is whether an employee of the Selective Service System other than a person employed by the local board where the registrant's file was maintained may authenticate that file once it has been removed from a continuous chain of custody within the Selective Service System — here, removed solely for the purpose of placing it in the custody of the Assistant United States Attorney in charge of the criminal case. While the decisions that have dealt with the general problem of authentication of Selective Service records uniformly have adopted a liberal interpretation of Section 1606.35(a), none has faced this precise issue.

In Yates, the defendant originally had registered with a local board in South Carolina. When ordered to report for induction, he requested a transfer of induction to Boston where he then lived. Upon his refusal to submit to induction, he was indicted and tried in Massachusetts. At trial, his Selective Service file, which had been maintained in South Carolina, was offered in evidence by the government through the Deputy Director of Selective Service for Massachusetts, who testified that (1) the file was an official government record; (2) that he was the custodian of the file; and (3) that the material contained therein was made and kept in the ordinary course of Selective Service business. The Court of Appeals, in rejecting the defendant's contention that the jurisdiction of the witness was limited to Massachusetts whereas the file had been maintained in South Carolina, held, first, that under the regulation (Section 1606.35(a)) the Massachusetts Deputy Director was properly considered the custodian of the file, he being an officer of the Selective Service System; and, second, that his status as custodian was not defeated simply because he had no personal knowledge of the substance of the file: "A custodian of records is not obliged to possess personal knowledge of the content of the file. He need only authenticate its source." 404 F.2d at 467.

Other cases involving similar facts have reached like results. In United States v. Rogers, 454 F.2d 601 (7 Cir.1971), for example, the defendant's file was held properly authenticated by an Air Force Lt. Colonel assigned to the Illinois Selective Service System who had testified only that he had read the file and that it had been kept in the ordinary course of the System's business. Numerous other cases (including those cited below by Judge Pollack, 346 F. Supp. at 83) have sanctioned authentication by state supervisory personnel who lacked knowledge of the precise record-keeping methods utilized by the registrant's local board. E. g., United States v. Holmes, 387 F.2d 781, 783-84 (7 Cir.1967), cert. denied, 391 U.S. 936 (1968); Pardo v. United States, 369 F.2d 922, 925-26 (5 Cir. 1966). Cf. United States v. Ward, 173 F.2d 628 (2 Cir. 1949) (clerk in Office of Selective Service Records).6

The rationale of these cases is unmistakable — that the peculiar administrative problems of the Selective Service System justify some relaxation of the strict rules of authentication in order to avoid undue disruption of the System with little or no benefit to the defendant. The wisdom of that policy is well exemplified here where the file gives no hint of unreliability and appellant does not challenge the regularity of anything contained therein. In cases of this sort, therefore, the courts uniformly have sanctioned authentication of a file, as the regulation provides, by "[a]ny officer or employee of the Selective Service System" (emphasis added) — not limited to those employees assigned either to the particular local board where the registrant's file is maintained or to the state system with jurisdiction over that local board. We see no justification, under the circumstances of the instant case, for imposing a limitation upon the effect of the regulation which no court, so far as we are aware, has seen fit to impose.

This does not end our inquiry, however, for the chain of custody within the Selective Service System that was present in Yates and other cases7 was interrupted here for a period of time. While we have not been informed exactly when the file was removed from appellant's local board, it is clear that the file was delivered to Mrs. Broadhurst on May 17, 1972 by the Assistant United States Attorney in charge of the case.

The theory behind the exception to the hearsay rule for records made in the regular course of business is "to permit the admission of business memoranda which impart a circumstantial guarantee of trustworthiness. The test is one of reliability." United States v. Hickey, 360 F.2d 127, 143 (7 Cir.), cert. denied, 385 U.S. 928 (1966). See Ross v. American Export Isbrandtsen Lines, Inc., 453 F.2d 1199, 1201 n. 2 (2 Cir. 1972). A critical element of "reliability" is a continuous chain of custody that is not likely to defeat that guarantee of trustworthiness. What must be demonstrated is that "the possibilities of misidentification and adulteration be eliminated, not absolutely, but as a matter of reasonable probability." Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969). In the final analysis, the determination of whether that reliability exists must be left to the sound discretion of the trial judge. E. g., United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2 Cir. 1943).

Here the district court was satisfied that the file retained that essential trustworthiness the absence of which would defeat its admissibility. On the particular facts of this case, we are unwilling to overturn that determination. In so holding, however, we place special reliance upon two factors: (1) that the only break in the Selective Service System's continuous chain of custody was when the file was in the possession of the Assistant United States Attorney in charge of the case — a break which, without more, does not suggest any increased likelihood of unreliability; and (2) that appellant has made no claim that the file as received in evidence contained any irregularities, and our examination of the file discloses none.

In short, while we do not condone the laxity with which the government approached the laying of a proper foundation for the introduction of appellant's file in evidence, neither the authentication by Mrs. Broadhurst nor the temporary possession of the file by the Assistant United States Attorney created sufficient doubt as to its reliability to render it inadmissible.

We hold that the district court did not err in admitting the file in evidence.

III.

Appellant's second contention is that his local board violated both the Selective Service regulation and the requirements of due process when it failed to consider in advance of his pre-induction physical examination on February 26, 1970 two medical reports which had been submitted by appellant on February 20 and 26.

On February 20, six days before he was scheduled to report for a pre-induction physical, appellant submitted to his local board a letter from Dr. Philip Knapp, a New York ophthalmologist. The letter states that Dr. Knapp had examined appellant in 1966 and that he had shown an esotropia.8 A second letter from Dr. Maurice Tannenbaum, submitted by appellant at the Armed Forces Examining and Entrance Station on the date of his physical, stated that he had shown "Alternating Esotropia since birth".9 Each of these documents bears a stamp indicating that it was reviewed and considered by the local board on June 1, 1970. Appellant contends that he was entitled to have the letters considered by the local board in advance of his February 26 physical, and that the board's failure to do so violated both the applicable regulation and due process of law.10

Under the Selective Service regulation then in effect, "[w]henever a registrant . . . claims that he has one or more of the disqualifying physical defects which appear in the list [prescribed by the Surgeon General], the local board shall order him to present himself for interview with the medical advisor." 32 C.F.R. § 1628.2(b) (1970) (revoked, 35 Fed.Reg. 13719, August 27, 1970). Included in the list in effect at the time appellant's letters were submitted was the following provision:

Appellant's medical letters indicated that he had shown alternating esotropia, a form of strabismus. Nothing in the letters, however, indicated that his condition was of the degree specified in ¶ 2-12h(4), or that his condition was accompanied by diplopia as specified in ¶ 2-12h(5). Since the medical information presented by appellant to the local board did not claim one of the disqualifying physical defects specified in the Surgeon General's list, the board was not required under Section 1628.2(b) to refer him for an interview with the medical advisor. Cf. United States ex rel. Signorelli v. Malleck, 314 F.Supp. 153, 155 n. 4 (D.Conn.), aff'd per curiam on opinion below, 428 F.2d 823 (2 Cir. 1969), cert. denied, 397 U.S. 1008 (1970).

By the same token, submission of the medical letters did not require the local board to reopen appellant's file immediately upon request. The general rule, as stated in Mulloy v. United States, 398 U.S. 410 (1970), is that "where the registrant has set out new facts that establish a prima facie case for a new classification, a board must reopen to determine whether he is entitled to that classification." Id. at 415. Nevertheless, "the board need not reopen where the claim is plainly incredible, or where, even if true, it would not warrant reclassification. . . ." Id. at 418 n. 7 (emphasis added). Here the medical evidence did not establish a prima facie case for reclassification. The board was not required to reopen the file. Consideration of the claim was properly left in the first instance to the medical personnel at the examining station.11

We affirm the judgment of conviction and we commend Judge Pollack for his characteristically lucid, carefully reasoned opinion.

Affirmed.