source: Caselaw Access Project

author: McGOWAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. Clifton S. HAIRSTON, Appellant.
    No. 71-1657.
    United States Court of Appeals, District of Columbia Circuit.
    April 4, 1974.

      Louis Zimmet (appointed by this court) was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, Kenneth Michael Robinson, and David G. Larimer, Asst. U. S. Attys., were on the brief for appellee.
    Before McGOWAN and TAMM, Circuit Judges, and JAMESON Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to Title 28, U.S.Code, Section 294(d).

   McGOWAN, Circuit Judge:

Appellant Hairston was tried jointly in the District Court with Archie J. Lee, and both were found guilty of violations of the federal narcotics laws. 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. Appeals followed, and that of Lee has heretofore been disposed of by affirmance. Hair-ston’s appeal was held in abeyance pending this court’s en banc resolution of United States v. Henson, 159 U.S.App. D.C. 32, 486 F.2d 1292 (1973).

Henson was eventually decided on the ground that 14 D.C.Code § 305 (Supp. VI, 1973), mandating the admissibility of prior convictions for impeachment purposes, was an ex post facto law when applied to defendants tried for crimes committed before its effective date, February 1, 1971. Appellant was arrested for an offense occurring twelve days after that date; and there is, accordingly, no ex post facto issue presented by this appeal. It thus becomes necessary to consider questions not reached in Henson. We decide that the statute in question was not intended by the Congress to be applicable to the trial of U. S. Code, as distinct from D.C. Code, offenses.

I

Appellant was apprehended during a police raid. Detective Hill, the Government’s principal witness, testified that following his entry into the premises described in the warrant he proceeded to a rear room in the building and, upon entry, noticed appellant, then standing some six to ten feet away, drop a green change purse to the floor. The detective stated that he immediately retrieved the purse, which contained twelve packets of heroin. Hill further testified that he apprehended appellant inside the building before appellant could escape through a rear door. The detective advised appellant of his rights, searched him, and discovered a syringe that was introduced as evidence at trial.

Hairston’s defense was a denial of the critical portions of Detective Hill’s in-culpatory testimony. According to his version of the events, appellant was shooting craps in the back room for approximately one hour before the police arrived; he escaped through the back door and was arrested in the alley by another officer, not by Detective Hill; he had been searched by an Officer Anderson rather than Detective Hill; no syringe had been discovered on his person; and the first time he saw either the syringe or the coin purse was at the police station following his arrest. The essence of Hairston’s version of the events, emphasized by his counsel in closing argument to the jury, was that Detective Hill was mistaken in thinking that appellant was the person he had seen drop the coin purse and thereafter arrested and searched inside the premises.

Testimony of co-defendant Lee tended to corroborate one critical portion of appellant’s version of the events. Lee testified that he had seen Hairston and another individual escape through the back door while the raid was in progress. This much of appellant’s version of the events was further corroborated by the testimony of witnesses Overton and Jackson.

This conflict in testimony sets the scene for the issue we address hereafter, namely, the propriety of the use of a prior conviction of appellant to impeach his credibility. On cross examination, the prosecutor asked appellant whether he was the same person who had been convicted for assault with intent to commit rape in 1964, a fact which appellant admitted and which the court, by reference to the mandatory nature of 14 D.C.Code § 305, permitted to remain in evidence over a defense objection. Appellant asserts that this application of the statute conflicts with the Constitution.

II

The predecessor version of Section 14-305 of the D.C.Code, as interpreted by this court in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), allowed the trial court to exercise discretion in determining whether to admit evidence of prior convictions for the impeachment of criminal defendants when they testified in their own defense. Proper exercise of that discretion required that the trial court consider whether the probative value of appellant’s prior conviction with respect to his credibility might be outweighed by the potential prejudice flowing from the jury’s awareness of the prior conviction and its tendency to assume, limiting instructions notwithstanding, that guilt in the present case was inferable from guilt in the prior instance. In the years following Luck this court articulated standards to assist the trial courts in the exercise of this discretion. See, e. g., Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968).

The Luck approach mirrored that available in all federal courts by reason of Rule 26 of the Federal Rules of Criminal Procedure. Luck held that the prior Section 14-305, construed to reflect the usual significance of the word “may,” was not intended to deprive the trial court of its traditional common law discretion to balance possible prejudice against probative value in deciding whether to admit a particular piece of evidence (see Rule 403 of the Proposed Federal Rules of Evidence), including prior convictions for impeachment purposes. Subsequent opinions of this court pointed out that, when that discretion is properly invoked by objection or request of the accused, the court must rule; and procedures were identified by which such exercise of discretion could, in appropriate circumstances, be as informed as possible. In no case did we alter the discretionary nature of the trial court’s function in this regard. See, e. g., United States v. Thomas, 147 U.S.App.D.C. 41, 452 F.2d 1373, 1374 (1971). Nor does the record of this court in reviewing Luck points on appeal suggest that it has abjured the customary appellate approach to matters committed to the trial court’s discretion. See Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269, cert. denied, 395 U.S. 927, 89 S.Ct. 1785, 23 L.Ed.2d 245 (1969).

When Luck and its subsequent application in this court are correctly understood, as appears not to be the case in many quarters, the Government’s version of the response to Luck in other circuits comes into better focus in relation to the issue involved in this ease," namely, whether the revised Section 14-305 of the D.C.Code was intended to foreclose the federal district courts in this circuit from exercising this discretion in the trial of U.S.Code offenses. While some other circuit courts have appeared to be unconvinced of the necessity of the trial court’s spending much, if any, time on proceedings designed to make the discretionary ruling an informed one in the first instance, and have perhaps themselves been prepared to accord such rulings very broad latitude indeed on appellate review, none, to our knowledge, has asserted that the admissibility of prior convictions to impeach the criminally accused is not a question committed to the trial court’s discretion.

In Henson this court unanimously concluded en banc that the existence of this discretionary power in the trial court offered the defendant two distinct advantages, the statutory nullification of which after the commission of the crime charged deprived him of substantial rights. First, the discretion to exclude evidence of prior crimes can help to assure that the Government’s burden of proof does not slip below the constitutionally required standard. Henson, supra, 486 F.2d at 1307; and see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The trial court is enabled in a proper case to protect the defendant from the obvious prejudice that flows from the admission of evidence of convictions for past offenses. To the extent that the result of this prejudice is the creation of an inference of guilt, or at least the dilution of the impact of the defendant’s protestations of innocence, the trial court’s discretionary power reenforces the Winship burden.

Secondly, the trial court’s discretionary determination to exclude evidence of prior crimes can guard against possible dilution of the right of the accused to testify in his own behalf. Henson, supra, 486 F.2d at 1308. Cf. Gordon, supra, 383 F.2d at 940; Luck, supra, 348 F.2d at 769. When confronted with the fact that his testimony would enable the prosecution to introduce otherwise inadmissible evidence of his criminal past, a defendant frequently remains silent, even though his testimony may be highly relevant to the issue of guilt or innocence. The existence and exercise of the discretionary power to exclude evidence of prior crimes can, in appropriate circumstances, avoid this result.

The recent rewriting by Congress of 14 D.C.Code § 305 appears to have represented a legislative determination that the public interest is best served by assuring the jury an opportunity to weigh the credibility of the testimony of a criminal defendant in the light of his prior criminal record.

That is a judgment which, subject possibly to due process limitations, Congress is fully capable of making in respect of the trial of D.C.Code crimes. When, however, that judgment is sought to be extended to the trial of U.S.Code crimes in the United States District Court for the District of Columbia, constitutional problems of a vastly different order are encountered. The existence and nature of these difficulties were identified by this court, speaking with one voice en banc, in Henson. There we said (486 F.2d 1309, n. 20):

Our disposition of these appeals also enables us to forego consideration of what we consider to be an important question raised in respect of the Henson and Brown cases, both of which were prosecutions for United States Code offenses as contrasted with the Jeffries and Marshall prosecutions under the District of Columbia Code, If the new D.C. impeachment statute is to be interpreted as applicable to federal criminal trials, it would mean, first, that the federal courts in the District of Columbia would be placed upon a different footing, with respect to the admissibility of evidence of prior convictions, from the federal courts in the other ten circuits, which remain free to devise their own rules of admissibility under Fed.R.Crim.P. 26 irrespective of the rule of the local jurisdiction in which they sit. See, e. g., United States v. Woodall, 438 F.2d 1317, 1327 (5th Cir. en banc 1971).
Second, it would place criminal defendants prosecuted in the federal courts of the District of Columbia on a different footing from those tried in any other federal circuit, although both classes of defendants may be charged under the same U.S.Code provisions. This treatment of similarly situated persons in a different fashion is fraught with equal protection overtones. See United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971); cf. Long v. Robinson, 316 F.Supp. 22 (D.Md.1970). More importantly, as the Government properly concedes, the federal courts here are established by the Congress pursuant to its power under Article III of the Constitution, and as such are invested with the same “judicial Power of the United States” as are all other inferior federal courts. Whether they may, in the context of the cases before us, be singled out for different treatment from Article III courts elsewhere raises serious constitutional questions.
******

We are not now called upon to resolve these substantial constitutional issues. As we demonstrate hereinafter, the legislative history of the recent and thorough-going revision of 14 D.C.Code § 305 indicates that Congress did not intend that statute to embrace U.S.Code crimes. Courts confronted with significant constitutional issues in the application of statutes to particular fact situations traditionally inquire first whether Congress intended the legislation to apply to those cases. See, e. g., United States v. Rumely, 345 U.S. 41, 45, 73 S. Ct. 543, 97 L.Ed. 770 (1953); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932). In general terms, the presumption of the constitutional validity of legislation enacted by Congress raises a corollary presumption that constructions calling statutes into serious constitutional question are erroneous and, in any event, are to be avoided whenever possible. See Thompson, supra, 452 F.2d at 1341. With these admonitions in mind, we turn away from constitutional exegesis to the more prosaic task of statutory construction.

Ill

The Government’s argument for the applicability of 14 D.C.Code § 305 to trials of federal crimes takes its primary impetus from reference to the pre-reorganization distribution of jurisdiction in the District of Columbia. Pointing out that one statute has long purported to control admissibility of prior crimes evidence for both the federal and local courts sitting in the District of Columbia, it is maintained that the revised statute is designed to follow that pattern and to control both judicial systems in the future. In support of this position, the Government observes that the federal courts in the District for many years followed the provisions of the predecessor Section 305 in conducting trials for asserted violations of both D.C.Code crimes and United States Code crimes.

Additionally, the Government seeks to minimize the constitutional problems presented by that interpretation, urging that one of the critical factors that prompted this court in Thompson to conclude that the postconviction bail provisions of the Court Reform Act were inapplicable to persons convicted of committing federal crimes was the apparent conflict that that interpretation engendered between the bail provisions of the Court Reform Act and those of the Bail Reform Act. It asserts that in this case no such conflict exists, for there presently is no federal statute governing the admissibility of prior crimes evidence for the purpose of impeachment. Indeed, rather than presenting a case of conflict between different federal statutes, the Government asserts that 14 D. C.Code § 305 represents the kind of exception expressly contemplated by the terms of the Federal Rule 26 itself.

This approach seems to us to ignore the significance of the reorganization of the judicial system in the District of Columbia effected by Congress in the District of Columbia Court Reform and Criminal Procedure Act of 1970. Resort to the past would be more persuasive if. this court were dealing with a judicial structure resembling its predecessor. However, since the purpose of the Court Reform Act was to reorganize the judicial systems of the District of Columbia, we examine the statute and its legislative history more carefully. And closer scrutiny strongly suggests that the Government’s view of 14 D.C.Code § 305 does not correspond with the Congressional intent in revising this section in the context of a sweeping reorganization and reallocation of judicial power deriving from different constitutional sources

The legislative history of Section 305 reveals the Congressional contemplation that the federal courts of the District of Columbia would be governed by the impeachment provision of the Proposed Rules of Evidence for the United States District Courts and Magistrates. The Congressional assumption that the Proposed Rules would become effective shortly after enactment of the D.C. Court Reform and Criminal Procedure Act and thus bring uniformity between the rules prevailing in the federal and local courts of the District proved erroneous. However, this does not alter the fact that the Congressional purpose was to enact two similar but separate provisions for the two court systems in the District of Columbia; for the one, the statute, for the other, the Rules of Evidence. Nor can the subsequent Congressional failure to make the latter effective empower this court to harmonize the practice in the District by extending the present 14 D.C.Code § 305 beyond its intended scope, especially when such an extension would itself pose the difficult constitutional problems noted above.

As the Government has correctly pointed out, the prior Section 305 had been applied in all trials conducted in the United States District Court of the District of Columbia. Indeed, some of the cases referred to by members of Congress in discussion of the wisdom of the Luck rule were trials for asserted violations of federal law. See H.Rep.No. 91-907, 91st Cong., 2d Sess. 62-63 (1970). That does not, however, prove the Government’s assertion that the practices of the past are to be imported into the present.

The judicial discretion preserved in the predecessor Section 305 as construed in Luck — the “time-honored discretion of trial judges, in ruling on questions of admissibility of evidence, to weigh pro-bativeness against prejudiciality,” Henson, supra, 486 F.2d at 1305 — was in accord with, the common law principles made determinative by Federal Criminal Rule 26. Thus, trials for United States Code violations in the District’s federal courts previously presented no problem of the existence of a statutory rule for this circuit that differed from that governing other circuits. The discretion was the same.

Prior to the Court Reform Act the District Courts for the District of Columbia had exclusive jurisdiction over all felony offenses committed in the District, including those committed in violation of local law. See generally Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). Since the federal courts alone had been responsible for trying serious violations of District of Columbia law, Congress obviously had to look to their experiences when legislating on criminal matters of local concern. However, to infer from Congressional reference to this history of the federal courts in the District an intention to bind those courts in their future trials of federal offenses'bespeaks an indifference both to the purposes of the Court Reform Act and to the constitutional problems that such an interpretation would raise.

The intention of Congress in the D.C. judicial reorganization was to create an independent judicial system to be responsible for “local” matters, and to free the federal courts of the District of that responsibility. The jurisdiction of the latter was to be reshaped in a manner more closely paralleling that of the other Article III courts of the nation. Id. at 408-409, 93 S.Ct. 1670. Even the most superficial examination of the legislative history of the Court Reform and Criminal Procedure Act reveals that Congress was both aware of the longstanding unique nature of the federal courts of the District of Columbia and intent upon substantial alteration of that status. A House Report characterized the legislative undertaking as follows:

Upon completion of the transfer of jurisdiction the United States District Court for the District of Columbia will be on a par with other United States district courts, exercising federal jurisdiction only, and the Superior Court of the District of Columbia will have all purely local jurisdiction.

H.Rep.No.91-907, supra at 34. See also S.Rep.No.91-405, 91st Cong., 1st Sess. 5 (1969); 116 Cong.Rec. 24740 (remarks of Senator Baker); id. at 8918 (Senator Ervin); 115 Cong.Rec. 8091 (Representative Abernethy); id. at 7934 (Representative Hogan).

Vividly conscious that it was prescribing for both Article I and Article III courts, Congress specified that some provisions were intended to govern the conduct of one or the other judicial system, and that others were intended to apply to both. The question here is whether 14 D.C.Code § 305 was intended to control the proceedings of the federal courts as well as the local courts. The legislative history of Section 305 demonstrates that Congress intended that statute to govern only the conduct of the local courts, on the assumption that the Proposed Rules of Evidence for the United States District Courts and Magistrates would soon establish a similar rule for the federal courts of the District.

Repeatedly throughout its consideration of Section 305, Congress expressed its awareness of the similar provision in the Proposed Rules of Evidence which would control the admissibility of evidence in all of the federal courts. Typical of these expressions is the following, which appears in H.Rep.No.91-907, supra, at 61-62:

The rule for impeachment [Section 14-305] is essentially the same rule as that proposed in March 1969, by the Advisory Committee on Rules of Evidence to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States as the model rule to be used in all federal, district courts and before all magistrates. [Emphasis added]

In fact, Senate acquiescence in the House version of Section 305 was premised in large part on the realization that enactment of the Senate version would have established a standard that differed from that which was then contemplated for the federal courts generally. As the Statement of the Managers on the Part of the Senate Submitted Regarding Conference Action upon S. 2601, the President’s Crime Legislation for the District of Columbia, 91st Cong., 2d Sess. 24-25 (1970), explained :

The House version ... is supported by a draft of the Advisory Committee on Rules of Evidence to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States .... The recession by the Senate conferees [to the House version] was explicitly conditioned . . . upon a conference agreement to reconsider the rule on impeachment if the Advisory Committee’s draft is substantially modified in the Federal Rule adopted and promulgated by the Supreme Court. It would clearly be antithetical to have one rule for the District’s local courts and a different rule for the Federal courts. [Emphasis added]

Essentially the same argument was repeated on the floor of the House in opposition to Representative Dennis’s amendment to the House bill, which some members considered to be a return to codification of the then existing case law of the District.

Even the Government appears to have once interpreted Section 14-305 to speak only to the local courts. The then Deputy Attorney General, in a letter to Chief Justice Burger commenting on the Proposed Rules of Evidence, observed that “proposed Rule 609 contains several provisions which depart from the Congressional policy expressed in the 1970 legislation. Adoption of the rule in its present form would lead to burdensome divergent practices in the courts operating in the District of Columbia.” Hearings on the Proposed Rules of Evidence Before the Special Subcomm. on Reform of Federal Criminal Laws of the House Comm, on the Judiciary, 93rd Cong., 1st Sess., ser. 2, at 44 (1973). The premise of this comment was obviously that the Proposed Federal Rules would govern the federal courts of the District of Columbia.

In light of this apparently universal understanding that the Federal Rules of Evidence would set the standard for the federal courts of the District of Columbia, only one possible theory might be advanced to support the Government’s contention that 14 D.C.Code § 305 now controls prosecutions of federal crimes in the District Courts of this circuit. This argument would have to be that Congress intended Section 305 to serve as an interim standard for the federal courts of the District until superseded by the Proposed Federal Rules. However, this argument was not advanced by the Government and finds no support in the legislative history of Section 305.

The notion of interim legislation for the District was not foreign to Congress. For example, the transfer of jurisdiction over D.C.Code crimes from the federal courts to the local courts was achieved in carefully phased steps. Thus, it is not illogical to think that had Congress similarly wished an interim standard to govern the District’s federal courts until the enactment of the Proposed Rules, it would have said so. We would be most reluctant to imply such an intent in the face of this legislative history, especially when the judicial construction would itself cause disparate treatment of Article III courts’ powers to control important evidentiary matters. Proper canons of legislative interpretation suggest that our role should be precisely the opposite. We therefore choose to follow the more plausible interpretation of the legislative history of 14 D.C.Code § 305 — that the Section was not intended to govern the trial of United States Code crimes in the federal courts of the District of Columbia.

Our determination that Congress intended the federal courts of this circuit to be governed by the same standards that control the conduct of criminal litigation in all other federal district courts of the nation leads us to the conclusion that this case should have been decided in accordance with the principles laid down by this court in Luck, Gordon, and other cases in this circuit that deal with the admissibility of prior criminal convictions. Congressional failure to enact Federal Rules of Evidence leaves Federal Criminal Rule 26 as the' governing standard for these matters. Rule 26, in turn, recognizes the same discretion to balance prejudiciality against probativeness that this court found embodied in the original Section 305. That rule continues to be operative.

The conclusion that the District Court erred in regarding Section 305 as depriving it of discretion to consider the probative value of the prior conviction against its possible prejudicial effect requires a remand of the nature directed in Henson (486 F.2d at 1309), that is to say, the District Court shall determine whether it would, in the exercise of discretion, have excluded the evidence of appellant’s prior conviction and, if it should have, whether its failure to do so was, in any event, harmless error. The convictions appealed from are otherwise affirmed.

It is so ordered.

      . The validity of neither the search warrant nor the .appellant’s arrest and search is in issue on this appeal.

      . Neither the defense nor the prosecution elicited the testimony of Officer Anderson on this question.

      . Miss Jackson testified only that she saw appellant leave through the rear door. Mr. Overton’s testimony indicated some confusion as to exactly how many persons left through the rear door, but he consistently maintained that appellant was among two or three persons who did manage to get out through that door. Detective Hill was the only Government witness to testify that only one person left through the rear door. While the record suggests some superficial contradictions in Hill’s statements, a fair reading of Hill’s testimony indicates that he was reasonably certain that only one person had so departed, and completely certain that he apprehended appellant inside the premises.

      . The other claims of error made by appellant do not necessitate reversal. The prosecutor admittedly erred in suggesting that one defense witness had a prior conviction for grand larceny, but the mistake was immediately discovered and an apology made to the witness and the jury; the court’s handling of the matter eliminated any serious risk of prejudice. Some of the prosecutor’s statements in closing argument, although ill-conceived, were again the subject of adequately curative direction to the jury by the court. The record provides no foundation for a final contention that the prosecution wrongfully withheld information from appellant.

      . The following colloquy took place at the bench after defense counsel’s objection to use of the conviction for impeachment (Tr. 71-2) :
      COUNSEL: If he is using this to impeach his credibility this is not the type of crime.
      THE COURT: The statute says any kind of crime.
      COUNSEL: That is the literal meaning but assault with intent to rape and crimes of violence don’t necessarily reflect upon one’s truth-telling or veracity.
      THE COURT: It doesn’t occur to me that rapists are renowned for their veracity. I admit that some people do disagree with that. The Court of Appeals doesn’t think that stealing a $5,000.00 automobile affects veracity. But be that as it may, I will admit it. Have you anything else? COUNSEL: No. I just make a constitutional objection. I didn’t realize Mr. Robinson was going to use the rape. I antici„pated the petty larceny but I didn’t anticipate the rape. It bore on my decision whether to put the defendant on the stand.
      THE COURT: You know what the statute says and there is no more Luch.

      COUNSEL: I don’t interpret the statute as meaning any crime. I feel your Honor must have some discretion in deciding what should be entered. Your Honor may rule as to evidentiary questions and I don’t think Congress ever meant to take Your Honor’s discretion away from you.
      THE COURT: As a matter of fact, I think that is exactly what Congress did mean to do. In any event, I overrule the objection.

      . The statute applies in terms to any witness. However, it is most frequently applied to the criminal defendant, and it is in this posture that the most troublesome constitutional questions arise.

      . Rule 26 provides that “[t]he admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”

      . See, e. g., United States v. Harding, 475 F.2d 480, 485 (10th Cir.), vacated on other grounds, 414 U.S. 964, 94 S.Ct. 274, 38 L.Ed.2d 211 (1973); United States v. Jansen, 475 F.2d 312 (7th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973); United States v. O’Day, 467 F.2d 1387 (9th Cir. 1972), cert. denied, 410 U.S. 912, 93 S.Ct. 975, 35 L.Ed.2d 275 (1973); United States v. Driscoll, 454 F.2d 792, 799 (5th Cir. 1972); United States v. Cox, 428 F.2d 683, 689 (7th Cir.), cert. denied, 400 U.S. 881, 91 S.Ct. 127, 27 L.Ed.2d 120 (1970); United States v. Cacchillo, 416 F.2d 231 (2d Cir. 1969); United States v. Allison, 414 F.2d 407, 411-412 (9th Cir.), cert. denied, 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed. 2d 433 (1969); United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969).

      . The statute, part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, provides in pertinent part:
      (a) No person is incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of a criminal offense.
      (b) (1) Except as provided in paragraph (2), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall he admitted if offered, either upon the cross-examination of the witness or by evidence aliunde, but only if the criminal offense (A) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment). A party establishing conviction by means of cross-examination shall not be bound by the witness’ answers as to matters relating to the conviction.
      (2) (A) Evidence of a conviction of a witness is inadmissible under this section if—
      (i) the conviction has been the subject of a pardon, annulment or other equivalent procedure granted or issued on the basis of innocence, or
      (ii) the conviction has been the subject of a certificate of rehabilitation or its equivalent and such witness has not been convicted of a subsequent criminal offense.
      (B) In addition, no evidence of any conviction of a witness is admissible under this section if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness from confinement imposed for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal'offense.

      . The D.C. Court of Appeals — since reorganization the functioning “supreme court” of the District of Columbia — has sustained the new Section 305 against constitutional challenge, including that founded on the Fifth Amendment. Dixon v. United States, 287 A.2d 89, cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813 (1972). See United States v. Bailey, 138 U.S.App.D.C. 242, 426 F.2d 1236, 1242 (1970).

      . The United States Courts in the District of Columbia represent an exercise by Congress of its powers under Article III. The local courts, eontrarily, are a product of Ar-tide I.

      . Congress ultimately determined that the questions posed by the Rules of Evidence were too difficult to be considered adequately within the time limits originally contemplated for Congressional approval (by inaction) of the Rules as promulgated by the Supreme Court. Accordingly, it passed P.L. 93-12, 87 Stat. 9 (March 30, 1973), which provides that the Rules will not take effect unless affirmatively enacted by Congress.

      . The organizational and jurisdictional provisions of Title 11 of the D.C.Code generally indicate their intended scope precisely, as do the provisions of Title 16 controlling particular actions and proceedings. Similarly, Section 13-301 specifically states that, “[ejxcept as otherwise specifically provided by law or rules of court, this chapter applies to the District of Columbia courts,” which Section 11-101 defines to include only the Superior Court of the District of Columbia and the District of Columbia Court of Appeals.
      The intended scope of some of the provisions of Title 14 is not so clear, however. In some sections Congress again specified that the rule there established was to govern both the federal and the local courts. See, e. g., 14 D.C.Code §§ 307, 309 (Supp. VI, 1973). In others, such as Section 14-305, the intended scope is left to judicial surmise. In these latter cases, we will not, absent an unmistakable indication of Congressional intent, imply a rule for the federal courts of this circuit differing in important respects from that controlling other Article III courts.
      To the extent that confusion in the conduct of trials may be anticipated in those cases where the United States Attorney uses the authority given him under the reorganization statute to combine local and federal crimes in the same indictment, resulting in their trial together in the United States District Court, it would appear that the federal forum’s evidentiary law would govern impeachment by prior conviction. The United States Attorney is not, of course, bound under the statute to combine local and federal charges, and is, accordingly, under no inescapable necessity to try local crimes under other than local law.

      . The Senate bill contained a section on impeachment that more closely reflected the basic parameters of the Luck doctrine. See S. 2601, 91st Cong., 1st Sess. (1969).

      . The House of Representatives’ latest version of the Proposed Rules of Evidence, approved by that body on February 6, 1974, establishes an impeachment provision that differs significantly from that upon which Section 14-305 was patterned. Rule 609, governing impeachment by evidence of conviction of a crime, establishes a general rule that “evidence that he has been convicted of a crime is admissible only if the crime involved dishonesty or false statement.’’ H.R. 5463, 93d Cong., 1st Sess. (1974). The Senate has not yet acted on the Proposed Rules.

      . See 116 Cong.Rec. 8152-53 (remarks of Representative Hogan; id. at 8153 (Representative Abernethy) ; id. at 8155 (Representative Flowers) ; id. at 8157 (Representative MacGregor).
      At one point Representative MacGregor referred to Section 14-305 as applying “to the courts of the District.” However, when read in light of his previous statement that the Proposed Rule 609 would be the model rule for “all Federal district courts,” this statement would appear to refer only to the local courts of the District.
      Additionally, it is perhaps significant that members of Congress primarily looked to the prevailing rule in the state courts for justification of Section 14-305. See, e. g., id. at 8152-53 (Representative Hogan) ; id. 8155 (Representative Flowers); H.Rep. 91-907, supra, at 62-63; hut see 116 Cong. Rec. at 8157 (Representative MacGregor). It would seem that the legislators would additionally have canvassed the federal practice under Federal Criminal Rule 26 more carefully if they had thought that Section 14-305 was to alter the federal practice.

      . 18 U.S.C. § 3771 provides that all laws in conflict with the rules of criminal pleading, practice, and procedure prescribed by the Supreme Court and adopted by Congress “shall be of no further force or effect after such rules have taken effect.”

      . While this appeal was pending before the court, appellant filed a motion requesting that, in the event of a remand, we issue guidance to the District Court concerning the effect of United States v. Marshall, 158 U.S.App.D.C. 283, 485 F.2d 1062 (1973), on appellant’s eligibility for parole under 18 U.S.C. § 4202. We regard this as neither necessary nor appropriate. The decision to grant or deny parole under 18 U.S.C. § 4202 is committed to the Board of Parole, 18 U.S.C. § 4203. Appellant’s motion makes no suggestion that the Board is either unaware of the Marshall opinion or intent on avoiding its consequences.


author: BAZELON, Chief Judge:

text:
    DISTRIGAS CORPORATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Pacific Lighting Service Company et al., Intervenors.
    No. 73-1747.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 27, 1973.
    Decided April 5, 1974.

      Edwin S. Nail, Boston, Mass., with whom Justin R. Wolf and Charles A. Case, Jr., Washington, D. C., were on the brief, for petitioners.
    John R. Staffier, Atty., Federal Power Commission with whom Leo E. For-quer, Gen. Counsel, and George W. Mc-Henry, Sol.', Federal Power Commission were on the brief, for respondent.
    Edward S. Kirby, Newark, N. J., for intervenor, Public Service Electric and Gas Co.
    Richard B. Wolf, Washington, D. C., with whom Victor H. Kramer, Washington, D. C., was on the brief for interve-nor, United States Representative John M. Murphy. John F. Dienelt, Washington, D. C., also entered an appearance for intervenor, United States Representative John M. Murphy.
    Thomas D. Clarke, Los Angeles, Cal., with whom K. R. Edsall, Los Angeles, Cal., was on the brief for joint interve-nors, Southern California Gas Co. and Pacific Lighting Service Co.
    William I. Harkaway, Washington, D. C., was on the brief for intervenor, Consolidated Edison Co.
    Sherman Chickering, C. Hayden Ames, Donald J. Richardson, Jr., and Edward P. Nelsen, San Francisco, Cal., were on the brief for intervenor, San Diego Gas and Electric Co.
    Barbara M. Gunther and Joseph P. Stevens, Brooklyn, N. Y., were on the brief for intervenor, The Brooklyn Union Gas Co.
    John W. Glendening Jr., and John S. Schmid, New York City, were on the brief for intervenor, Boston Gas Co., and others.
    John H. Cooper, Jr., Houston, Tex., entered an appearance for intervenor, Exxon Corp.
    Gerald W. Conway, Newark, N. J., entered an appearance for intervenor, New Jersey Natural Gas Co.
    Robert J. Haggerty, Washington, D. C., entered an appearance for interve-nor, Algoquin Lng., Inc.
    Edward W. Stern, Philadelphia, Pa., entered an appearance for intervenor, Philadelphia Gas Works.
    Richard J. Sgarlato, Brooklyn, N. Y., entered an appearance for intervenor, B.L.A.S.T. Citizens, Inc.
    Before BAZELON, Chief Judge, and WRIGHT and WILKEY, Circuit Judges.
   BAZELON, Chief Judge:

Distrigas Corporation and its affiliates Distrigas of New York Corporation and Distrigas of Massachusetts Corporation seek review of a Federal Power Commission order directing them to “file with the Commission applications pursuant to Section 7 of the Natural Gas Act for authorization to construct and operate . . . their liquefied natural gas terminal, storage, re-gasification, and related facilities on Staten Island, New York, and Everett, Massachusetts.” Distrigas challenges the order on two grounds. It contends that the Commission’s attempt to apply Section 7 certification requirements to the facilities that Distrigas employs, or proposes to employ, to receive imports of liquefied natural gas and to store, process, and distribute the gas for sales in both interstate and intrastate commerce directly contravenes this Court’s decision in Border Pipe Line Company v. F. P. C. Distrigas contends further, and with somewhat greater vehemence, that because the Commission disclaimed jurisdiction over the facilities when it originally granted Distrigas authority to import natural gas, it is barred from exercising such jurisdiction now, whatever its statutory power and responsibility may be as to similar facilities and operations of other gas import companies.

We conclude that the Commission has jurisdiction under the Natural Gas Act to issue the kind of order before us in this case, and that exercise of its authority with respect to Distrigas is in no way precluded by the Commission’s previous disclaimer. Our conclusion rests, however, on a statutory premise other than that which the Commission has invoked. We find it necessary, therefore, to remand the record to the Commission for further proceedings and action prerequisite to imposition of Section 7 requirements.

I

Central to the issues presented in this petition are the provisions of Section 3 of the Natural Gas Act, that:

* * * [N]o person shall export any natural gas from the United States to a foreign country or import any natural gas from a foreign country without first having secured an order of the Commission authorizing it to do so. The Commission shall issue such order upon application, unless, after opportunity for hearing, it finds that the proposed exportation or importation will not be consistent with the public interest. The Commission may by its order grant such application, in whole or in part, with such modification and upon such terms and conditions as the Commission may find necessary or appropriate, and may from time to time, after opportunity for hearing, and for good cause shown, make such supplemental order in the premises as it may find necessary or appropriate.

Pursuant to this Section, Distrigas applied to the Commission on February 17, 1970, for authority to import from Algeria up to six shiploads (later increased to fourteen shiploads) of liquefied natural gas annually for a term of twenty years. According to the application, the gas was to be delivered to Dis-trigas at terminals and related facilities that it proposed to construct at Everett, Massachusetts, and on Staten Island, New York, thence to be sold, approximately eighty-three percent to distributors and direct customers in the states of importation and seventeen percent to distributors in other states. Together with its application, Distrigas submitted to the Commission a request that it issue a disclaimer of jurisdiction as to any of Distrigas’ activities that the Commission might deem outside its regulatory responsibility or, in the alternative, that it issue whatever authorization necessary to allow Distrigas to supply its prospective customers.

On March 9, 1972, the Commission issued Opinion No. 613, in which it agreed with the initial decision of the hearing examiner that Distrigas’ proposed importation was in the public interest and therefore granted the requested Section 3 authority. In addition, the Commission gave extended consideration to the jurisdictional problem that Distrigas had posed. That problem was, in essence, whether and to what extent Distrigas was required to seek from the Commission Section 7 certification for its proposed facilities and sales; and this in turn depended on whether and to what extent Distrigas’ operations would render it a “natural gas company” within the meaning of Section 2(6) of the Natural Gas Act — i. e., “a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.”

The majority of the Commission found, in part, perhaps, in reliance on our decision in Border Pipe Line Company, that the importation of natural gas is not “interstate commerce” as those words are used in the Act. It further found that the storage and regasification of liquefied natural gas were operations “separate and separable” both from the act of importation and, apparently, from the sale of the gas in interstate commerce. The majority therefore decided to treat Distrigas, for jurisdictional purposes, as if it were a producer or gatherer of natural gas in the state of importation. While the Commission was clearly required by Section 3 to grant or deny import authority, the majority, observing that Distrigas proposed to take delivery of the gas at the ship’s flange at the point of entry, held that foreign commerce and, hence, compulsory Section 3 jurisdiction ceased at that point. And while Section 7 certification was clearly required for those sales of liquefied and regasified natural gas destined for resale in interstate commerce, the majority held that its jurisdiction over such sales attached only at the tailgate of the importer’s plant. Thus, the majority concluded, Distrigas’ facilities and its transport and sales of natural gas solely within the states of importation were outside its compulsory jurisdiction under either Section 3 or Section 7 and, therefore, did not require its certification.

At the same time, the majority acknowledged that under Section 3 the Commission could take jurisdiction over Distrigas’ proposed facilities and intrastate sales as part of the “terms and conditions” of authorizing importation, and that the controlling question was whether it was “necessary or appropriate” to the public interest that the Commission do so. The majority determined that it was not, that, on the contrary, “exemption of these projects [i. e., facilities and intrastate operations] from the federal regulatory umbrella will make them more attractive to private investors and lead to more gas at a lower price to the consumer, and effect this result sooner, than if [the Commission] controlled every detail and decision related thereto.” The majority went on to say, however, that in Distrigas’ application the Commission confronted for the first time a proposal to import large quantities of liquefied natural gas for an extended period, and that its decision represented “only the first step in the development of a comprehensive Commission policy on long-term imports" of liquefied natural gas. In short, the Commission warned that its estimate of where the public interest lay with respect to such imports might well change. Citing the provisions of Section 3 allowing the Commission “from time to time [to] make such supplemental order in the premises as it may find necessary or appropriate,” the majority recognized “its responsibility and authority to take such action if and when the public interest so requires.”

Two members of the Commission, Chairman Nassikas and Commissioner Moody, dissented from.the majority’s decision on the jurisdictional point, arguing that the public interest, the determinative criterion under Section 3, could be served only if the Commission took full regulatory authority over all of Distrigas’ proposed operations and that, in any event, those operations constituted interstate commerce as defined in the Act. The majority nonetheless adhered to its original decision and denied applications for rehearing. A petition to review the decision, filed in this Court, was subsequently dismissed on the petitioner’s motion.

Thereafter, with import authorization in hand and assertedly in reliance on the Commission’s limited jurisdictional disclaimer, Distrigas proceeded to construction of its Everett and Staten Island facilities, expending very substantial sums on each. Distrigas also applied to the Commission for (1) Section 3 authorization to import significant additional quantities of natural gas, and (2) Section 7 certification of interstate sales of gas imported under the original authorization and the new authorizations for which it had applied. Since the issuance of Opinion 613, however, the complexion of the Commission had undergone some change; two members having resigned and not having been replaced, Chairman Nassikas and Commissioner Moody were now in the majority. In response to Distrigas’ new applications, the Commission issued, over the dissent of the third remaining member, the order presented here for review, which, in effect, reverses the Commission’s jurisdictional determination in Opinion 613. The order states that, although in its original application Distrigas had proposed to operate primarily in intrastate commerce, its new applications, proposing “new and increased sales outside the states of importation,” made clear that the Everett and Staten Island facilities would be used for the transportation and sale of gas in interstate commerce. Finding that there were “no controverted facts relating to the issue of jurisdiction” and, therefore, that no hearing was required, the Commission held that Section 7 certification was mandated for all of Distrigas’ facilities and directed Distrigas to submit appropriate applications.

Distrigas thereupon filed an application for rehearing, contending, inter alia, that the Commission had supplied no rational basis or findings of fact to support its jurisdictional conclusion and that, in fact, Distrigas planned no material change in its proportion of interstate to intrastate sales. In denying rehearing, the Commission ignored this contention. Instead, the majority advanced two alternative theories that, it said, supported its assertion of jurisdiction. Jurisdiction could, according to the majority, be premised on “commingling” — the use of facilities to receive, store and process gas destined for both interstate and intrastate sales. Asserting that Opinion 613 had left open the question of what proportion of interstate sales would render import facilities jurisdictional, the majority observed that commingling had been the basis of its exercise of jurisdiction in its decision, subsequent to Opinion 613, in Columbia LNG Corporation.' But recognizing the regulatory problems that the commingling theory might pose, the Commission advanced, and adopted as its jurisdictional policy with respect to liquefied natural gas imports, an alternative, “interstate commerce” theory. It held that all imports of natural gas, whether destined for sale in the state of importation or other states, are in interstate commerce as that term is defined in Section 2(7) of the Act, and that “[t]o the extent the Border decision could compel a contrary result, that holding is in error.” Thus, the majority concluded that Section 7 certification is mandatory under the Act for all of Distrigas’ facilities and sales, and reiterated its directive to file the necessary applications. Distrigas thereupon timely filed this petition for review.

II

We are confronted with the question whether this Court’s decision in Border Pipeline Company v. F. P. C. bars the Commission from requiring Section 7 certification of Distrigas’ facilities. In Border, the Commission had attempted to apply Section 7 requirements to facilities employed to export to Mexico, by direct pipeline, gas produced in Texas. In disapproving the Commission’s order, the Court said that, as a general matter of statutory construction, “interstate commerce” and “foreign commerce” are separate ideas and that the term “‘[¡Interstate commerce’ does not include foreign commerce, unless Congress by definition for the purposes of a particular statute includes them both in the single expression.” But Section 2(7)’s definition of interstate commerce does not expressly include foreign commerce; on the contrary, the Border Court found strong indication in the legislative history that Congress had purposefully excluded foreign commerce from the definition. Moreover, both terms are employed in the Act, and one section of the Act, Section 3, applies to foreign commerce alone. These factors, in addition to the consistent Commission practice prior to Border, led the Court to conclude that Congress intended in the Act to treat interstate commerce and foreign commerce separately, and that, because Border’s facilities were used solely for exports, they were elements of foreign commerce to which Section 7’s requirements do not apply.

The Commission does not here contend that the Border Court’s interpretation of the language and legislative history of the Act is necessarily and demonstrably incorrect, nor that, as applied to exports, Border’s construction of the Act is unreasonable. Instead, it contends that both the statutory language and the relevant legislative history are ambiguous as to Congress’ intent and cannot be supposed determinative of the extent to which the regulatory scheme applicable to interstate commerce was meant to apply to foreign commerce as well. This being so, the Commission argues, the proper scope of the term “interstate commerce” and, hence, of the Commission’s Section 7 jurisdiction, can only be determined through an examination of the congressional policy behind the Act and the scheme of regulation created to achieve it.

The Commission urges, first, that Border be distinguished from this case on the ground that, there, the Commission attempted to impose Section 7 requirements on export facilities, while here the Commission asserts such jurisdiction only with respect to import facilities and sales of imported gas. And while it might reasonably be supposed, as the Court did in Border, that Congress would be concerned under Section 3 only with the fact of exportation, the same cannot be said of imports, as to which detailed regulation under Section 7 of “rates, practices, accounting, facilities and financing” is necessary to the public interest. The Commission’s suggested distinction makes, we think, a great deal of practical sense. We can, however, find no anchor for it either in the rationale of Border or, what is more important, in the statutory language. The Border Court found that Congress had distinguished, not between imports and exports, but between foreign and interstate commerce. We think that if Border stands, it must exclude imports quite as much as exports from the definition of interstate commerce.

The Commission next urges that, if Border cannot be distinguished, it must be overruled. The Commission argues that complete and comprehensive regulation of sales of liquefied natural gas and of the facilities related to its importation is required to protect consumers. The states, however, cannot be supposed capable of imposing or of exercising the necessary regulatory authority. In addition to possible constitutional barriers to state regulation, the importation, sale, and distribution of liquefied natural gas in any one state will have, according to the Commission, a marked impact on interstate commerce and, particularly, on domestic gas production and supply, since liquefied natural gas projects may become capable of drawing available capital away from domestic exploration and development. If, however, regulation were left to the states, the possibility of competition among them in attracting such projects and of inconsistencies in regulatory approach would make protection of such distinctly federal interests, the interests of consumers in all states, impossible. In short, the Commission contends that unless its interstate commerce jurisdiction is held to extend to all sales of imported natural gas and the facilities related thereto, there will result precisely the sort of “attractive regulatory gap” that Congress intended the Natural Gas Act to fill.

Despite the power of this argument, we decline to overrule Border at this time. We agree with the Commission that neither the language nor the legislative history of the Act’s interstate commerce definition unambiguously establishes the correctness of the Border construction. That construction has, however, received at least some confirmation in subsequent congressional actions. Since Border, the Commission has asked Congress, on fourteen separate occasions, to enact legislation overruling it; each time, Congress has refused. Indeed, in 1953, Congress amended the Federal Power Act to include the equivalent of the Border interpretation, thus implicitly approving it. Moreover, Border has governed Commission regulatory efforts with respect to imports and exports of natural gas for over twenty-five years, and while we cannot gauge from the record and arguments before us the extent to which private concerns have been arranged in reliance on it, that extent may well be considerable. In our view, these considerations must militate strongly against our now holding that Border was incorrect.

Nonetheless, we would not hesitate to do so were we convinced that Border’s construction would inevitably place’ imports of natural gas into the sort of regulatory gap the Commission has described. It has long been recognized that the purpose of the Natural Gas Act was “to protect consumers against exploitation at the hands of natural gas companies.” And this purpose was to be achieved by FPC regulation “broadly complementary to that reserved to the States, so that there would be no ‘gaps’ for private interests to subvert the public welfare.” We fully recognize, therefore, that this purpose must be the determinative guide in construction of the Act’s regulatory scheme. We are not convinced, however, that any attractive regulatory gap need result if Border is allowed to stand. Under Section 3, the Commission’s authority over imports of natural gas is at once plenary and elastic. It may authorize imports, as it did in Opinion 613, subject to no conditions whatever as to facilities and subsequent use; it may deny import authorization altogether. So long as its conclusion is reasonable and reasonably supported by substantial record evidence, the Commission may also and quite properly adopt a position somewhere between these two poles, granting import authority but subjecting it to “terms and conditions” that it finds “necessary or appropriate” to the public interest. More particularly, we can see no objection, in theory, to a Commission determination along the following lines: that, while imports of natural gas.are a useful source of supply, their potentially detrimental effect on domestic commerce can be avoided and the interest of consumers protected only if they are subject to comprehensive regulation; such regulation cannot or will not, as a practical matter, be imposed by the states; such imports will, therefore, be in the public interest only if the Commission exercises with respect to them the same detailed regulatory authority that it exercises with respect to interstate commerce in natural gas. In short, we find it fully within, the Commission’s power, so long as that power is responsibly exercised, to impose on imports of natural gas the equivalent of Section 7 certification requirements both as to facilities and — what we suspect is of more vital concern to the Commission and to petitioners — as to sales within and without the state of importation. Indeed, we think that Section 3 supplies the Commission not only with the power necessary to prevent gaps in regulation, but also with flexibility in exercising that power — flexibility far greater than would be the case were we to hold that imports are interstate commerce, automatically and compulsorily subject to the entire panoply of Section 7’s requirements.

Ill

We think, therefore, that as a matter of jurisdiction the Commission had authority under Section 3 to issue the kind of order before us here. Nor do we think that exercise of that authority over Distrigas’ facilities is barred by the Commission’s limited disclaimer in Opinion 613. Distrigas argues that once the Commission’s previous decision on the jurisdictional point became final and Distrigas consequently acted in reliance thereon in contracting with its customers and constructing its facilities, it was no longer open to the Commission to change its mind and to assert jurisdiction where it had previously declined to do so. In support of this contention, Distrigas refers us to the Supreme Court’s decision in United States v. Sea-train Lines, Inc., in which the Court rejected an attempt by the Interstate Commerce Commission to revoke certification it had previously granted to an interstate water carrier. That decision, however, rested heavily on the Court’s doubt that the ICC would have had, in the first instance, statutory authority to take the action it did and on the absence of any statutory provision allowing revocation of water carrier certificates. Here, in contrast, Section 3 expressly allows the Commission to re-examine its decisions authorizing imports and to “make such supplemental order in the premises as it may find necessary or appropriate.” Moreover, as we have recounted at some length above, Opinion 613 frankly warned Distrigas that its jurisdictional decision was tentative only, and might be changed should the Commission determine, in the future, that the public interest so required. We think, therefore, that under Section 3 and Opinion 613 itself, any “right” to non-regulation that the Commission’s previous decision can be supposed to have vested in Distrigas was entirely contingent on the Commission’s continuing to view such non-regulation as in the public interest. If Distrigas relied on an interpretation of Opinion 613 to the contrary, assuming that that decision granted it permanent immunity from regulation, its reliance was misplaced.

We note, however, that Distrigas’ argument from reliance comes to us in a highly abstract form. The only obligation placed on Distrigas by the present order is that it file applications under Section 7 for certification of its existing facilities — an obligation with which, we are informed, Distrigas has already complied. Although we recognize that compliance with Section 7’s procedural requirements itself entails some costs, we can see no basis for supposing, at this point, that the Commission will refuse certification to Distrigas’ facilities or to the contractual arrangements into which it has already entered. In fact, there is reason to suppose the contrary. The Commission has long regarded Section 3’s “public interest” standard and Section 7’s “public convenience and necessity” standard as substantially equivalent. The hearing examiner expressly recognized this equivalence in his decision approving Distri-gas’ original application for import authority, in which he gave extensive consideration both to Distrigas’ proposed facilities and to its proposed sales; and this decision, on this point at least, was adopted by the Commission in Opinion 613. To some extent, therefore, the Commission must be supposed to have found that Distrigas’ facilities and sales, as then contemplated, would meet the “public convenience and necessity” standard of Section 7. Thus, should the Commission eventually decide that those facilities and sales proposed in Distrigas’ original application do not now merit Section 7 certification, it would, in our view, be under some burden to justify its decision, on the basis of altered circumstances or otherwise. Moreover, in denying Distrigas’ application for rehearing, the Commission acknowledged “the problems and equities associated with application of a change of [jurisdictional] policy.” Given this acknowledgment, we cannot now assume that the Commission would, in applying Section 7 requirements to Distrigas, fail to abide the principles of fairness implicit in all standards governing exercise of regulatory power.

IV

While we do not believe the Commission in any way estopped from imposing on Distrigas the equivalent of Section 7 requirements, two considerations prevent us, on the present record, from affirming the Commission’s order as a proper exercise of its Section 3 authority. First, Section 3 allows the Commission to issue supplemental orders, subjecting previously authorized imports to additional “terms and conditions,” only if it does so “after opportunity for hearing, and for good cause shown. . . .” Because the Commission did not invoke Section 3 as its authority for the present order, it did not provide the hearing that that Section expressly mandates. Equally important, while we think that the Commission may impose, under Section 3, the equivalent of Section 7 requirements, it may do so only if it affirmatively finds that applying such requirements to imports is “necessary or appropriate” to the public interest. Because the Commission, holding imports included in interstate commerce, viewed its exercise of jurisdiction as mandatory, it did not make the necessary Section 3 determination here. Although it may seem obvious, from the arguments it has presented, that the Commission does consider comprehensive regulation of imports required by the public interest, we cannot assume this to be the case. It is for the Commission in the first instance to determine, after reasoned consideration and on the basis of substantial evidence, whether and in what manner to exercise its flexible Section 3 power, and this determination will in turn be subject to the normal review processes provided in the Act.

We therefore remand the record for supplementation, with directions that the Commission conduct the hearing required by Section 3 and that it supply findings and reasons to support its jurisdictional determination under Section 3’s public interest standard. As we observed above, the Commission originally grounded its order on a “commingling” theory. It eschewed that theory, however, in its order denying rehearing. In addition, it failed, both in its original order and in its order denying rehearing, to make any findings of jurisdictional fact or to provide any reasoned analysis to support a conclusion that, because of commingling, the Commission has jurisdiction over Distrigas’ facilities and sales. For these reasons, we cannot look to commingling as a ground for affirming the Commission’s present order. At the same time, nothing in this opinion precludes the Commission, on remand, from reverting to the commingling theory, rather than turning to Section 3, if it does so in a manner that allows responsible judicial review.

So ordered.

      . As discussed more fully in Part I, infra, petitioner Distrigas Corporation is presently engaged, pursuant to FPC authorization, in the importation of liquefied natural gas for receipt at facilities located on Staten Island, New York, and at Everett, Massachusetts; these facilities the subject of the order before us for review, are owned, respectively, by petitioners Distrigas of New York and Distrigas of Massachusetts. Petitioners, all subsidiaries of Eastern Energy Corporation, which, in turn, is a wholly-owned subsidiary of Cabot Corporation, will hereinafter be referred to collectively as “Distrigas.”

      . FPC Order in Docket Nos. CP 73-78, et al., issued May 25, 1973, Joint Appendix at 1, 3; Order Denying Rehearing, issued June 20, 1973, Joint Appendix at 24.

      . 15 Ü.S.C. § 717f.

      . 84 U.S.App.D.C. 142, 171 F.2d 149 (1948).

      . 15 U.S.C. § 717b.

      . 47 F.P.C. 752 (1972).

      . Docket No. CP 70-196, issued June 14, 1971, Joint Appendix at 35-125.

      . 15 U.S.C. § 717a (6).

      . 47 F.P.C. at 758-59.

      . Id. at 756-57.

      . Id. at 759.

      . Id. at 756.

      . Id. at 760-61; 763.

      . Id. at 760.

      . Id. at 765.

      . 47 F.P.C. 1465 (1972).

      . Public Service Commission of the State of New York v. FPC, Docket No. 72-1588, dismissed Jan. 10, 1973.

      . The terminal at Everett was completed in November, 1972, and is now in operation; • the terminal on Staten Island, now in partial operation, is scheduled for completion by mid-1974.

      . FPC Docket Nos. CP 73-78; CP 73-132.

      . FPC Docket Nos. CP 73-135; CP 73-205; and CP 73-230. In addition, another affiliate of Distrigas, Distrigas Pipeline Corporation, filed an application for authority to construct a pipeline between Staten Island and Wood-bridge, New Jersey, to transport Distrigas’ re-gasified imports to prospective New Jersey customers. FPC Docket No. CP 73-148.

      . Order, supra note 1, Joint Appendix at 2.

      . Id. at 3.

      . Opinion No. 622, 47 F.P.C. 1624 (1972). In Columbia, the Commission granted both import authority and Section 7 certification of the importer’s terminal, regasification and storage facilities. No party in that case, however, challenged Section 7 jurisdiction, and the Commission simply noted that, in contrast to Distrigas, Columbia’s operations were to be interstate in nature. Indeed, two commissioners, of four, concurred in the jurisdictional decision only because it was not a litigated issue. Id,, at 1630 n. 6.

      . In particular, the facilities of a firm, the operations of which were largely or entirely intrastate at the outset and only later became interstate, would become jurisdictional only after they were already constructed and in operation, making the traditional tests for Section 7 certification- — economic feasibility, adequacy of supply, financing, costs, etc. — much more difficult to apply. Order Denying Rehearing, supra note 2, Joint Appendix at 29.

      . 15 U.S.C. § 717a(7).

      . Order Denying Rehearing, supra note 2, Joint Appendix at 28.

      . 15 U.S.C. § 717r.

      . 171 F.2d at 150.

      . Section 2(7) defines interstate commerce as “commerce between any point in a State and any point outside thereof . . . but only insofar as such commerce takes place within the United States.” 15 U.S.C. § 717a (7).

      . See, e. g., Mitchell v. Independent Ice & Cold Storage Co., 294 F.2d 186 (5th Cir.), cert. denied sub nom., Independent Ice & Cold Storage Co. v. Goldberg, 368 U.S. 952, 82 S.Ct. 394, 7 L.Ed.2d 386 (1961).

      . 171 F.2d at 151.

      . See Initial Opinion of the Presiding Examiner, supra note 7, Joint Appendix at 81; 42 FPO Annual Report 15 (1962).

      . 67 Stat. 461 (1953); 16 U.S.C. § 824a (f).

      . See H.Rep.No.978, 83d Cong., 1st Sess., at 2 (1953).

      . See Flood v. Kuhn, 407 U.S. 258, 281-285, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972).

      . FPC v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333 (1944).

      . FPC v. Louisiana Power & Light Co., et al., 406 U.S. 621, 631, 92 S.Ct. 1827, 1833, 32 L.Ed.2d 369 (1972); see FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 19-20, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961).

      . 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396 (1947).

      . Text at notes 13-15 supra.

      . It has done so, of course, under protest, its applications contingent upon disposition of this appeal. Letter to the Court Clerk from Counsel for Distrigas, dated Nov. 20, 1973.

      . Cf. Hughes Air Corporation, et al. v. CAB, 160 U.S.App.D.C. 301, at 309-10, 492 F.2d 567, at 575-76 (1973).

      . See, e. g., El Paso Natural Gas Co., 38 F.P.C. 311, 319 (1967); The Montana Power Co., 11 F.P.C. 1, 7 (1952).

      . Initial Opinion of the Presiding Examiner, supra note 7, Joint Appendix at 85-86.

      . 47 F.P.C. at 766.

      . Joint Appendix at 30.

      . See Amalgamated Meat Cutters v. Connally, 337 F.Supp. 737, 755-758 (D.D.C.1971) (three-judge court) (Opinion by Leventhal, Circuit Judge).

      . See FPC v. Louisiana Power & Light Co., et al., 406 U.S. 621, 647, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972); Louisiana Power & Light Co., et al. v. FPC, 483 F.2d 623, 631-632 (5th Cir. 1973). Cf. SEC v. Chenery Corp. et al., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).


author: PER CURIAM:

text:
    UNITED STATES of America v. John R. BRANIC, Appellant. UNITED STATES of America v. Donald T. STEVENS, Appellant. UNITED STATES of America v. Tyrone BASKERVILLE, Appellant.
    Nos. 72-1831, 72-1832 and 72-2219.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 5, 1973.
    Decided April 9, 1974.

      Eugene I. Lambert, Washington, D. C. (appointed by this Court), with whom Robert L. Palmer, Washington, D.C., was on the brief, for appellants.
    Stuart M. Gerson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Stephen W. Grafman, Asst. U. S. Attys., were on the brief for appellee. Roger M. Adelman, Asst. U. S. Atty., also entered an appearance for appellee.
    Before BAZELON, Chief Judge, and ROBB and WIHKEY, Circuit Judges.
   PER CURIAM:

In a joint trial, appellants were convicted by a jury of felony murder, armed robbery, and assault with a deadly weapon. They were all denied Youth Corrections Act sentences, and received twenty years to life on the murder counts, and lesser, concurrent, sentences for the other convictions. We affirm the felony murder and armed robbery convictions, and vacate the assault with a deadly weapon convictions. We also reverse Stevens’ sentence, and hold in abeyance the contentions of Branic and Baskerville with respect to the trial court’s refusal to impose youth sentences.

I

The evidence showed that appellants entered a jewelry store, and while Bas-kerville stood guard, Branic and Stevens forced both proprietors — one of whom was the seventy-five year old father of the other — into a back room. Both men were handcuffed and instructed to lie on the floor. The younger man asked if his father could sit on a chair because of his age, but was told to “shut up.” Adhesive tape was then wrapped around the victims’ months. The son was still able to speak, and tried, in Hungarian, to calm his father. In response, one of the robbers removed the tape from the son’s mouth, stuffed the son’s handkerchief in his mouth, and replaced the tape. Appellants then took approximately $4000 in merchandise and cash.

Shortly after the robbers fled, the younger proprietor ran to a neighboring store for help. He returned to assist his father, but was unable to remove his handcuffs. The police arrived and also attempted unsuccessfully to remove the father’s cuffs. During this effort the father became pale and began to perspire. He was pronounced dead on arrival at the hospital.

Appellant’s primary argument is that the trial court’s instructions on felony murder were deficient in so far as they did not require the jury to find that death was a foreseeable result of appellants’ behavior. Relying on People v. Stamp, 2 Cal.App.3d 203, 82 Cal.Rptr. 598 (1970), the court instructed the jury that they had to find that appellants committed “an unlawful act which proximately caused th[e] death,” and that “[t]he proximate cause of death is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the death, and without which the result would not have occurred.”

The D.C.Code felony murder statute requires that a homicide committed during a felony be done “purposely” unless the felony is “arson, rape, mayhem, robbery, or kidnapping,” in which case the homicide may be committed “without purpose so to do.” 22 D.C.Code § 2401. We have previously indicated that by eliminating the element of “purpose” with respect to these five serious felonies, Congress intended to apply the common law felony murder rule to them — that is, that a homicide committed in the course of their perpetration is murder because the “malice” required for murder can be implied from the commission of the felony. The doctrine of implied malice obviates the need for the government to prove that death was “foreseeable” when the homicide occurs during any of these five specified felonies. Accordingly, nothing in the court’s instruction warrants reversal of appellants’ convictions.

Appellants Branic and Stevens challenge the admission into evidence of their line-up identifications. We have viewed the pictures of the line-up, and find that the line-up was not suggestive. Relying on Spriggs v. Wilson, 136 U.S.App.D.C. 177, 419 F.2d 759 (1969), and United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969), appellants also contend that the line-up identifications were inadmissible because the police refused their counsels’ request for any descriptions which had previously been provided by witnesses viewing the lineup. We are not in agreement as to whether the police were required to give such identifications. We do agree, however, that the refusal in this case was harmless since the line-up was not suggestive.

Baskerville attacks a tentative ruling by the trial court to the effect that if he testified, the prosecutor might be allowed to impeach him with a prior statement he gave to the police in which he denied participation in the instant offense, admitted committing another robbery, and claimed that Branic and Stevens told him that they had committed the instant offense. The trial court diligently tried to keep out evidence of the “other” robbery because of its potentially prejudicial impact, but felt that if Baskerville testified the prior statement might be admissible because the two offenses were so highly related. We need not decide — solely on the basis of speculation as to what appellant might have said — whether, or to what extent, the prior statement could be admitted since the court’s tentative ruling did not influence appellant’s decision not to testify. Counsel for Baskerville, at the urging of co-counsel and appellant himself, advised the court that “[i]n view of all the circumstances, it is the consensus . . . that Mr. Baskerville will not take the stand.” So far as the record indicates these “circumstances” did not include the court’s ruling that the prior statement might be admissible for impeachment.

II

Appellant Stevens — who was twenty-one years old at the time of the jury verdict — was not considered for youth sentencing because he was twenty-two at the time' he was sentenced. The Youth Act defines a “youth offender” as “a person under the age of twenty-two years at the time of conviction,” and defines “conviction” as “the judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contend-ere.” 18 U.S.C. § 5006(e), (h) (emphasis supplied). However, for the reasons given by Judge Youngdahl in United States v. Carter, 225 F.Supp. 566 (D.C. D.C.1964), we reject a formalistic reading of the statute and hold that “for purposes of determining whether a defendant qualifies as a ‘youth offender,’ the time of ‘conviction’ is the time the verdict is returned or a plea of guilty is taken.” Id. at 567. Thus, we remand Stevens’ case for resentencing.

Branic and Baskerville claim that the trial court’s reasons for denying youth treatment were insufficient. The Supreme Court has granted certiorari in Dorszynski v. United States, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), to decide whether the sentencing judge need give reasons when he denies youth treatment. Sound judicial administration requires that we withhold consideration of appellants’ claims until the Supreme Court has acted.

So ordered.

      . 18 U.S.C. § 5005 et seq.

      . On the armed robberies the sentences were ten to thirty years, and on the assaults they were three to ten years.

      . Assault with a deadly weapon is a lesser included offense of armed robbery. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973).

      . See, e. g., Carter v. United States, 96 U.S.App.D.C. 40, 223 F.2d 332, 333 n. 2 (1955); cf. Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1229 (1968) (en banc).

      . See generally Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555, 565-566 (1961) (en banc).

      . See generally United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145, 1168-1169 (1973) (Statement of Bazelon, C. J., as to why he would grant rehearing en banc).

      . Compare American Law Institute, Model Penal Code § 201.2, and tentative draft # 9, comment 4 to § 201.2 (1962).

      . Appellants were viewed by witnesses to the instant robbery as well as witnesses to other robberies. See Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).

      . Appellant also claims that the court erred in failing to “offer to sever Baskerville’s trial from those of his co-defendants.” On the contrary, the court explicitly indicated that it was “very seriously considering this question of severance.” Its consideration terminated, of course, when Baskerville declined to testify.

      . The robberies, both of jewelry stores, occurred one day apart, and were committed with the same modi operandi, allegedly by the same three defendants. The keys to the handcuffs used in the instant robbery were found in Baskerville’s car, which in turn, had been identified as the vehicle that sped away from the other robbery. Also found in Baskerville’s car was Stevens’ fingerprint.

      . The circumstances discussed by counsel were (1) that in explaining the presence of the handcuffs, Baskerville would “almost hav[e] to refer to [the other robbery] which I don’t want,” and (2) “[t]hen there is always the risk of [sic] in the course of examination, unwittingly Mr. Baskerville would mention something where he would open the door, although slightly, he would open it ajar to permit the intrusion of the Government on an area that heretofore been [sic] held out of the province of cross-examination by the Court’s ruling.”

      . See United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (en banc); United States v. Reed, 155 U.S.App.D.C. 198, 476 F.2d 1145 (1973) (en banc).


author: BAZELON, Chief Judge:' WILKEY, Circuit Judge,

text:
    ATLANTA GAS LIGHT COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Cities Service Company and City of McCaysville, Georgia, et al., Intervenors.
    No. 72-1805.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 5, 1973.
    Decided April 12, 1974.

      Albert G. Norman, Jr., Atlanta, Ga., of the bar of the Supreme Court of Georgia, pro hac vice, by special leave of court, for petitioner. John E. Holtz-inger, Jr., and Frederick Moring, Washington, D. C., were on the brief for petitioner.
    William M. Sawyer, Atty., F.P.C., with whom Leo E. Forquer, Gen. Counsel, and George W. McHenry, Jr., Acting Sol., F.P.C., were on the brief, for respondent.
    Dale A. Wright, Washington, D. C., was on the brief, for interveners Cities Service Co. and City of McCaysville, Ga., et al.
    Before BAZELON, Chief Judge, and ROBB and WILKEY, Circuit Judges.
   BAZELON, Chief Judge:'

The Federal Power Commission held petitioner’s request for a jurisdictional ruling in abeyance pending resolution of a border dispute. Because we find the Commission has an obligation to resolve the jurisdictional issue, we reverse.

I

In 1818, two mathematicians, James Camaek and James S. Gaines, were commissioned by Georgia and Tennessee to survey the 35th parallel north latitude in order to fix the boundary between the states. Had they done their job well this ease would not be before us. Due, however, to poor instruments, the Camack-Gaines line ended up roughly one mile south of the 35th parallel. While Georgia did not ratify the survey, Tennessee did. To this day, the Georgia Code defines the boundary between Georgia and Tennessee as the 35th parallel, while the Tennessee Code insists that the boundary is the 35th parallel as found by Camaek and Gaines, that is, the line one mile south of the parallel. The result is a strip of land which has been claimed by both states for 156 years. Citizens of the area live with numerous anomalies — real estate taxes may be paid to both states, people may go to school in one state while paying taxes in another, and so on.

In 1971 petitioner Atlanta Gas Light Company proposed to sell natural gas in the disputed area. Atlanta, a Georgia company, is exempt from F.P.C. regulation under § 1(e) of the Natural Gas Act, which exempts sales of natural gas received and consumed entirely within one state, provided the sales are regulated by the state’s public service commission. Wishing to remain free from federal regulation, Atlanta petitioned the F.P.C. for a Declaratory Jurisdictional Ruling on whether it would retain its § 1(c) exemption if it extended its facilities into the disputed area. After a hearing, the F.P.C. concluded that the matter would be held in abeyance “until the boundary dispute between the states of Georgia and Tennessee has been resolved by appropriate authority.” Atlanta appealed, maintaining that the agency should not postpone action on its Petition.

II

The F.P.C.’s position is that the border dispute makes it impossible to determine whether the conditions for a § 1 (c) exemption are present. The existence of the first condition — that all gas be consumed within Georgia — cannot be determined since the F.P.C. cannot say whether the disputed area is in Georgia. The existence of the second condition— that Georgia regulate all of Atlanta’s natural gas sales — cannot be determined since both Georgia and Tennessee claim the right to regulate in the disputed area. Since we cannot resolve boundary disputes, the F.P.C. concludes, we must wait until this one is settled before acting.

The F.P.C., however, has misperceived its task. While it cannot resolve boundary disputes, it can and should determine the application of the Natural Gas Act in light of such disputes. The issue is jurisdiction, not geography. Administrative agencies often have to apply regulatory schemes to unforseen circumstances. In making such an application here, the F.P.C. would not be resolving the Georgia-Tennessee disagreement — it would simply be determining the implications of that disagreement for purposes of the statute, a common procedure in the law.

The F.P.C. maintains that it is within its discretion to delay action pending the receipt of further evidence, just as it might do, for example, in a rate case. The Supreme Court has held that whether an agency abuses its discretion in not completing a proceeding depends upon a weighing of the agency action against the alternative. Here the agency action — postponement—could lead to lengthy uncertainty. There seems to be no reasonable prospect that this centuries-old dispute will be resolved in the next several years. The alternative— determining jurisdiction in light of the dispute — will provide a quicker resolution and thus facilitate Atlanta’s decision on whether to provide' gas to the area. Under these unusual circumstances, we find that the agency’s refusal to act was unreasonable.

We are obliged, of course, to defer to the F.P.C. for the initial determination of its jurisdiction. “While the agency’s decision is not the last word, it must assuredly be the first.” We note only that to the extent the issue concerns state regulation in the disputed area, we assume the F.P.C. will make its good offices available for a meeting of representatives of the states, in the hope that at least as to the regulation of natural gas Georgia and Tennessee can reach agreement. It seems likely that in this narrow area the states will be willing to resolve this 19th century dispute before the 21st century begins.

The decision of the F.P.C. is reversed and the matter remanded for proceedings not inconsistent with this opinion.

So ordered.

WILKEY, Circuit Judge,

concurring:

I agree with my colleagues this matter should be remanded, but I think more detail as to the nature of the problem will perhaps assist to a solution and make clear why such has not been heretofore achieved.

What the petitioner Atlanta Gas Light Company desires, and believes itself entitled to, is regulation of this proposed pipeline by the State of Georgia, not the Federal Power Commission. As the situation was explained to this court, petitioner company could build the pipeline tomorrow, if it would accept FPC regulation. But FPC instead of Georgia regulation would have some unfortunate side effects on the company (not material here), which the company is understandably loath to accept. The FPC has no objection to regulation by Georgia, but FPC responsibilities under its applicable statute require it either to exercise its responsibilities or to relinquish such responsibilities by granting an exemption only if (1) regulation by a state public utility commission is certain, and (2) regulation is by only one State.

Neither essential prerequisite to an exemption is present in the current situation. Both Georgia and Tennessee assert sovereignty over this one-mile strip. It is not absolutely certain that either State will exercise effective regulation over the pipeline in regard to .safety standards, etc. It is quite possible that both will exercise some regulatory control, thus making the pipeline a peculiar type of “interstate” line requiring FPC jurisdiction.

A workable solution thus requires the agreement of both Georgia and Tennessee with the FPC, to create a situation which will allow the FPC lawfully to relinquish its jurisdiction and grant the sought exemption. Hence the remand, not only to allow the FPC to determine its jurisdiction, but first to create the conditions in which to act.

      . Record [hereinafter R.] at 105. A history of the dispute is set forth in Hood, J. B. “Georgia’s Northern Boundary,” Georgia State Bar Journal, November, 1971, reproduced at R. 226-32.

      . Bee Georgia Code § 15-103; Tennessee Code § 4-205. The Tennessee Code inexplicably refers to one of the mathematicians as James Carmack, rather than Camaek Bee R. 105.

      . R. 15-17.

      . Section 1(c) of the Natural Gas Act, 15 U.S.C. § 717(c), provides in pertinent part:
      The provisions of this Act shall not apply to any person engaged in or legally authorized to engage in the transportation in interstate commerce or the sale in interstate commerce for resale, of natural gas received by such person from another person within or at the boundary of a State if all the natural gas so received is ultimately consumed within such State, or to any facilities used by such person for such transportation or sale, provided that the rates and service of such person and facilities be subject to regulation by a State commission. .

      . Order, Docket No. CP71-221 (May 4, 1972). R. 260-61.

      . Bee Letter from Tennessee Public Service Commission, R. 184^85; Amendatory Order of Georgia Public Service Commission, R. 248-50.

      . Bee Rhode Island v. Massachusetts, 37 U.S. 657, 726-727, 9 L.Ed. 1233 (1838):
      There can be but two tribunals under the Constitution who can act on the boundaries of states, the legislative or the judicial; the former is limited in express terms to assent or dissent, where agreement is referred to them by the states, and as the latter can be exercised only by this court, when a state is a party, the power is here, or it doesn’t exist.

      . See, e. g., Federal Power Commission v. Louisiana Power and Light Company, 406 U.S. 621, 647, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972) (injection of small amounts of interstate gas into intrastate system).

      . See, e. g., Pacific Seafarers, Inc. v. Pacific Far East Line, 131 U.S.App.D.C. 226, 232, 404 F.2d 804. 810 (1968), cert. denied 393 U.S. 1093, 89 S.Ct. 872, 21 L.Ed.2d 784 (1969) and cases cited therein (meaning of “foreign commerce” for purposes of Shipping Act does not determine meaning for purposes of Sherman Act).

      . Wisconsin v. Federal Power Commission, 373 U.S. 294, 311, 83 S.Ct. 1266, 10 L.Ed.2d 357 (1963).

      . Efforts to resolve the dispute by a compact between the states have broke down. R. 71-E. No litigation in the Supreme Court has been instituted as yet. Petitioner’s brief at 11. Even if such litigation were to begin immediately, the record indicates it would take two to five years to complete. R. 71-F.

      . Federal Power Commission v. Louisiana Power and Light Company, supra, 406 U.S. at 647, 92 S.Ct. at 1842 (1972).

      . Section 1(a) of the Natural Gas Act, 15 U.S.C. § 717(a) ; 15 U.S.C. §§ 717-717w.

      . Section 1(c) of the Natural Gas Act, 15 U.S.C. § 717(c).