United States v. Kenneth Dale Hudson

LUMBARD, Circuit Judge

(dissenting) :

This is a case in which a defendant has been convicted solely on the basis of an anonymous notation in a Government record. Appellant was ordered to report for induction into the armed forces on January 26, 1971. He was indicted for failure to report., The only evidence that the Government introduced at trial, and on which the majority rely to sustain the conviction, is an unsigned, typewritten entry in appellant’s selective service file stating that appellant “Failed to Report for Induction” and dated January 26, 1971. There is nothing in the record to indicate who made this entry and what if any means that person would have had to observe who reported and who did not report at the induction station on the day in question. I cannot agree that the use of such evidence, without any foundation, is sanctioned by 28 U.S.C. § 1733 . Therefore, I dissent from the opinion of the panel and would reverse and remand this case to the district court for a new trial.

*256 Section 1733 is designed to eliminate the hearsay objection to the admission of statements appearing in Government records. Its purpose is to obviate the necessity and inconvenience of calling to the witness stand the Government officers who made and recorded the written hearsay statements. See Wong Wing Foo v. McGrath, 196 F.2d 120, 121 (9th Cir. 1952). Therefore, this provision eliminates any hearsay objection predicated on the fact that the statements sought to be admitted are third party statements in a Government record. However, § 1733 does not eliminate all evidentiary objections, other than the threshold hearsay argument, that might be raised to the admissibility of such statements, for this public-documents rule only serves to make the record a substitute for the appearance of the recording official in court. See Yaich v. United States, 283 F.2d 613, 616 (9th Cir. 1960).

The essence of appellant’s objection here is that the Government has not shown that the recorded matter was within the personal knowledge of the entrant. Appellant’s point is fundamental in the law of evidence: any witness who testifies to a fact that can be perceived by the senses must have had an opportunity to observe and must actually have observed the fact. “The same requirement ... is imposed upon declarations coming in under exceptions to the hearsay rule, that is, the declarant must so far as appears have had an opportunity to observe the fact declared.” McCormick, Evidence, p. 19. As Dean Wigmore stated:

Under the exceptions to the Hearsay rule the testimony of the witness deceased or absent must equally be based on personal observation. [T]he person making the statements must have the means of knowledge expected normally of every witness. 2 Wigmore § 670.

“The burden of laying a foundation by showing that the witness had an adequate opportunity to observe is upon the party offering the testimony.” McCormick, supra.

This requirement of first-hand knowledge has not been overlooked by the courts that have applied § 1733, and it appears to have been accepted as a prerequisite to the admission of statements that circumvent the hearsay objection by virtue of § 1733. Yung Jin Teung v. Dulles, 229 F.2d 244 , 247 (2d Cir. 1956); Yaich v. United States, 283 F.2d 613, 616 (9th Cir. 1960). On the one hand, the majority appear to concede that some showing of first-hand knowledge is necessary; on the other.hand, they read all significance out of the requirement by holding that it is satisfied here merely because the statement on its face appears to be a record of first-hand knowledge.

The majority justify this curious approach on the ground that the application of the first-hand knowledge requirement would serve to emasculate § 1733. However, I fail to perceive this as a serious hazard. Section 1733 serves to obviate the hearsay objection. In the face of an objection, the Government need only show who the declarant was and that he was in a position to observe personally the fact that he recorded. This would not always require the Government to call the recording official, as the majority fear; for the entrant’s presence in a position to observe the recorded facts could be shown in any number of ways other than his own testimony. 1 Hence, because of the majority’s groundless fears of emasculating § 1733, they have unnecessarily undermined the requirement of first-hand knowledge, a fundamental of the law of evidence. They appear to have concluded, erroneously I believe, that § 1733 makes statements placed into Govern *257 ment records impervious to serious evi-dentiary objections.

Applying the first-hand-knowledge requirement here would not overburden the Government in its prosecution of criminal cases, as the majority admit. 2 Either it could introduce evidence of the identity of the entrant and of his opportunity to observe appellant’s failure to report, or it could introduce alternative evidence of this fact that would not be subject to the same objection. In either event, we would not be confronted with the alarming specter of a criminal defendant being convicted and sentenced solely on the statement of an anonymous person appearing in a Government record.

. For example, the Government could identify the entrant, show that he was employed at the induction station with a duty to be present at the place where appellant would have reported, and show that he was on duty on the day in question.

. In footnote 3 of the majority's opinion, it is noted that the Government could avoid any objection such as was raised here by producing, and providing the necessary foundation for a Selective Service form No. 261 upon which the roll is taken of those who report at the place designated for induction.