author: FAHY, Senior Circuit Judge: ROBB, Circuit Judge MacKINNON, Circuit Judge

text:
    UNITED STATES of America v. William T. COEFIELD, Appellant.
    No. 24085.
    United States Court of Appeals, District of Columbia Circuit.
    Feb. 6, 1973.

      Marilyn Cohen, Washington, D. C., for appellant. Neal M. Mayer, Washington, D. C. (appointed by this court) also argued for appellant.
    Brian W. Shaughnessy, Asst. U. S. Atty., for appellee. Charles H. Roistacher, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, also argued for appellee. John S. Ransom, Asst. U. S. Atty., also entered an appearance for appellee.
    Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

   FAHY, Senior Circuit Judge:

The appeal is from a judgment of conviction of robbery in violation of 22 D.C. Code § 2901 (1967), as amended, (Supp. V, 1972). After the appeal was heard by a division of the court it was reheard by the court en banc to consider important and recurring problems arising from the administration of the Federal Youth Corrections Act. 18 U.S.C. §§ 5005-5026 (1970).

I. APPEAL FROM THE CONVICTION

Appellant testified that he engaged in conversation with two young ladies on the street, who in no way complained of his company as the three walked together toward a bus stop. Indeed, it is not disputed that they exchanged telephone numbers. Both ladies testified that at the bus stop one of the ladies reached into her slacks for bus fare, and when she removed a $10.00 bill, appellant snatched it and ran. Upon conviction of the robbery thus ascribed to appellant he was sentenced to imprisonment of two to six years, to be served consecutively to any sentence then being served.

Appellant claims on appeal, as he did at trial, of an unnecessarily suggestive photographic identification by the two ladies, from which it is said to follow, under the “poisonous tree” doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), that subsequent lineup and in-court identifications were inadmissible as stemming from the photographic identifications. At the conclusion of a hearing on a motion to suppress the identification evidence, the District Court, we think correctly, ruled that the lineup and in-court identifications were admissible as based on a source independent of the photographic identifications. We accordingly affirm the conviction and turn to consideration of the sentence.

II. CONSIDERATION OF COE-FIELD’S POSSIBLE SENTENCE UNDER THE YOUTH CORRECTIONS ACT

Because appellant was 20 years of age at the time of his conviction, a discussion arose at oral argument of the appeal as to a possible remand of the case for reconsideration of the sentence under the Youth Corrections Act. Appellant’s counsel was unable then to advise the court as to his client’s wishes in that regard. As arranged, however, he filed a memorandum after argument advising the court that appellant was amenable to consideration of his sentence under the Act. The Government in a responding memorandum took the position that a remand was unnecessary, contending that the sentencing court, by imposing an adult sentence consecutive to the other adult sentence of two to six years appellant was already serving, implicitly found that appellant would not derive benefit from a sentence under the Act.

In passing the Youth Corrections Act, Congress provided the federal sentencing judge with four alternatives. The first allows the judge to suspend imposition or execution of sentence entirely and place the youth offender on probation. 18 U.S.C. § 5010(a). The second allows the judge upon finding that the convicted person is a youth offender and that the offense is one punishable by imprisonment under other applicable provisions of law, to sentence the youth offender to the custody of the Attorney General for treatment and supervision in a special youth facility. 18 U.S.C. § 5010(b). Under this alternative, the youth offender must be unconditionally discharged no later than six years after the date of his conviction. 18 U.S.C. § 5017(c). Because the maximum-limitation of commitment under the second alternative may not be sufficient time in the judgment of the court for full rehabilitation of the youth offender, the judge may sentence the youth offender to commitment in a youth institution but specify the term, which may exceed six years but may not exceed the maximum period authorized by law for any applicable penalty. 18 U.S.C. § 5010(c). Under the fourth alternative, the court, provided it finds that the youth offender will not derive benefit from treatment by commitment to a youth institution under either the second or third alternatives noted above (18 U.S.C. § 5010(b) or (c)), may sentence him under any other applicable penalty provision. 18 U.S.C. § 5010(d). The court in selecting among these several alternative sentences has available to assist him, and the sentence to be served is subject to, the additional statutory provisions, and operation under them, outlined hereinafter in Part III of this opinion.

Since appellant was not placed on probation, or sentenced under either the second or third alternative above outlined, the question arises whether there has been a finding as required by section 5010(d) that he would not derive benefit from treatment under subsections (b) and (c), resulting in his sentence as an adult under the fourth alternative. In construing section 5010(d) in United States v. Waters, 141 U.S. App.D.C. 289, 291; 437 F.2d 722, 724 (1970), we held:

Under the Youth Corrections Act, § 5010(d), the court must affirmatively find that the youth offender will not benefit from rehabilitative treatment before the offender can be sentenced as an adult pursuant to the statute governing the offense for which he was convicted. (Footnote omitted.) [Emphasis in original.]

Likewise, in United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971), in reserving its ruling on appellant Ward’s motion for summary reversal, the court remanded the record to the District Court for elucidation of its reasoning why Ward could be denied sentencing under the Act notwithstanding the fact that the sentencing court recommended he be sent to “ ‘an institution where they usually send youth offenders such as Petersburg, Virginia, or some institution of that type.’ ” 147 U.S.App.D.C. at 151, 454 F.2d at 994.

The purposes of Congress in requiring an affirmative finding under section 5010(d) are explained in Judge Wilkey’s opinion for the court in Waters, are restated in Ward, and need not be repeated here at length. We note, however, the recognition that the trial judge retains discretion “to deny such rehabilitative treatment to those youths in the exceptional case where the judge determines that the special youth treatment afforded by the Act would be of no value.” 141 U.S.App.D.C. at 291, 437 F.2d at 724. Not only was there no finding of no benefit in Waters, but as in Ward the failure of the sentencing court to sentence under the Act was accompanied by a recommendation based on Waters’ youth. Since this was inconsistent with the failure to sentence under the Act, this court required the sentence as an adult to be vacated and the case remanded for resentencing pursuant to the finding requirements of section 5010(d). The court added:

[W]e believe that this discretion [of the sentencing court] is circumscribed by the findings of fact in the individual case which the District Judge is required to make either explicitly or implicitly.

141 U.S.App.D.C. at 292, 437 F.2d at 725; and see, to like effect, Ward, 147 U.S.App.D.C. at 151, 454 F.2d at 994.

These references to an implicit finding are advanced by the government now to support the adult sentence of Coefield. But the sentencing transcript contains no reference whatever to the Act nor does any reference to it appear in the presentence report submitted to the judge. It would seem, therefore, necessary to remand the case to the District Court for reconsideration of the sentence unless we are to imply the “no benefit” finding. This we are unable to do. In the first place, the record does not support such an implication. The fact that Coefield was already serving an adult sentence not imposed under the Act, does not establish by implication the requisite finding. The papers before us indicate that appellant has been quite successfully serving out his previous sentence, having completed high school equivalency during the sentence, and that he is now participating in a rehabilitative furlough program under which he is released for short periods of time. In addition, it appears from the presentence report of the first robbery that prior to sentencing for that offense appellant was confined for at least a part of the time under a program of work release, and responded favorably. From such a record we can draw no clear inference that the trial judge found no benefit. Given Coefield’s promising response to the correctional program and his earlier history free of encounters with the law, an equally compelling inference is that the judge failed to consider the Youth Corrections Act. True, Coefield’s record is not all favorable, but its hopeful indications strongly suggest that now is hardly the time to place him for two to six more years in an environment where there is greater likelihood that his responsive attitude toward rehabilitation could be reversed. To avoid the “degenerative and needless transformation of many of these young persons into habitual criminals” is the purpose of the Act. There is an additional reason why the finding of no benefit should not be left to implication, as now set forth in Part III.

III. STANDARDS OF SENTENCING UNDER THE ACT

1. The ambiguity illustrated by the Coefield sentence' has led the court en banc to give further consideration to the question whether the finding required by section 5010(d), as a condition to an adult sentence, should be left to implication. The passing reference in Waters to this possibility, a reference not necessary to the court’s decision, we think must give way to the statements in Waters that as a condition to an adult sentence the court is required affirmatively to find that the youth offender would not benefit from rehabilitative treatment, and, also, that the judge’s discretion “is circumscribed by the findings of fact in the individual ease which the District Judge is required to make.” The main thrust of the opinion thus is definitely toward explicitness, and we now adopt that as the rule; for when a youth offender is sentenced as an adult, and nothing more appears, it cannot be said with certainty that the Act was considered and a negative finding with respect to its possible benefits was made. Cf. Hubb v. United States, 298 A.2d 512 (D.C.1972).

2. The present consideration of the Act by the court en banc also furnishes an especially appropriate occasion for the adoption of some further guides in administering the Act, centering upon the relation of section 5010(d) to the Act as a whole. No federal statute having to do with sentencing compares in comprehensiveness with the Youth Corrections Act. In addition to the four alternative sentences available to the judge in the case of a youth offender, outlined in Part II, supra, a number of special provisions have been made available for assisting the judge, the youth, and the public, emphasizing the distinctive character of the sentencing of a youth offender, as compared with the larger freedom of the sentencing judge in adult cases. United States v. Bryant, 143 U.S.App.D.C. 53, 442 F.2d 775, cert. denied, 402 U.S. 932, 91 S.Ct. 1534, 28 L. Ed.2d 866 (1971). A special Division is created under the Board of Parole to assist in administering the Act. Section 5005. The Division functions under the Attorney General and in collaboration with the Director of the Bureau of Prisons. Sections 5005, 5007. The Director shall provide classification centers and agencies, which shall make a complete study of each committed youth offender. Section 5014. A report of the findings of the centers or agencies, with their recommendations for the youth’s treatment, goes to the Director and to the Division. Ibid. At least one member of the Division shall interview the committed youth, “review all reports concerning him, and make such recommendations to the Director and to the Division as may be indicated.” Ibid. On the basis of the report and recommendations the Director has a choice of recommendations : conditional release under supervision, transfer or allocation to another agency or institution for treatment, or confinement for treatment under conditions believed best designed for the protection of the public. Section 5015. Periodic examination of all committed youth offenders, and reports to the Director as to each, are required, and the Director shall report to the Division as the Division may require, as also shall probation officers and supervisory agents with respect to each youth under their supervision. Section 5016. Details are set forth as to the authority of the Division, upon notice to the Director, to release conditionally under supervision a committed youth offender, and with respect to recommendations in this regard by the Director to the Division. Section 5017(a). The periods of detention before discharge, with the differences due to whether the youth offender has been committed under sections 5010(b) or 5010(c), are contained in sections 5017(c) and (d). Revocation by the Division of its previous orders is permitted by section 5018, except an order of unconditional discharge. Committed youth offenders at liberty under supervision or conditionally released are supervised as detailed in section 5019.

Such attentiveness by Congress to this correctional system for youth offenders, developed over a period of many years of congressional study, calls for no less attentiveness on our part in administering the legislation, such as was given by .this court in Waters. We there pointed out that only in “the exceptional ease where the judge determines that the special youth treatment afforded by the Act would be of no value,” 141 U.S.App.D.C. at 291, 437 F.2d at 724, may a youth offender be sentenced other than under the Act, and then only upon the basis of an affirmative finding in the individual case that a sentence under the Act would not have the rehabilitative benefit contemplated by the Act where, for example, the judge, on the basis of a prior sentence under the Youth Corrections Act, which was followed by a subsequent offense, reached a decision, perhaps based on the section 5010(e) report, that the defendant would not derive rehabilitative benefit from a second sentence under the Act. This is an illustrative example, and is not the only or exclusive basis upon which a “no benefit” finding can be made ; we have not attempted to spell out all the grounds that might form a basis for an affirmative “no benefit” finding.

The approach in Waters and Ward would seem to presuppose a statement of reasons by the sentencing judge if these special provisions are not being utilized and the youth offender is sentenced as an adult. To require reasons to be stated is clearly not inconsistent with those decisions; and we now deem this to be essential to a knowledgeable administration of the Act as intended by Congress. When, however, prior to imposing a sentence, the judge has availed himself of the assistance afforded by section 5010(e), and after considering the report in light of the other data before him, follows its findings or recommendation in imposing sentence, additional reasons need not be stated, although, of course, the judge is not precluded from adding reasons of his own. On the other hand when section 5010(e) is not invoked, or the judge imposes a sentence contrary to the recommendation in a report following a referral under section 5010(e), the need for more detailed statement of reasons is more obvious. In providing for reasons to be stated by the District Court we are not seeking to elicit any litany or prescribed formula. We do consider it essential, however, to assure in every case: firstly, that the District Judge manifest not only an awareness that the Act is applicable to the case, but also an accurate understanding of the scope of his discretion under the Act; secondly, that the District Judge has been informed of the pertinent facts relating to the individual defendant before him, either by evidence coming to his attention in the trial, by a presentence report, or by a recommendation and report made under section 5010(e); and thirdly, that the District Judge, by his statement of reasons where required, has given consideration and related the facts of the individual case to the applicable law. If these requirements are satisfied, there should be no large number of appeals calling for review of sentences which call for consideration of the Youth Corrections Act.

3. We add that none of the existing rights of a person convicted of crime and which pertain to the sentenceing process, including the right of allocution, are impaired by the Act, and reasonable opportunity to the youth offender, if requested, to adduce evidence bearing on the sentence to be imposed, shall not be denied.

IV. APPELLATE REVIEW

1. The sentence of a youth offender as an adult is reviewable for legal error, such, for example, as a failure to utilize the Act because when sentenced the offender has reached the age of 22, although when the verdict or finding of guilt was rendered he was in the youth offender range of 18 to 22 years. Such an error was the basis of decision in United States v. Carter, 225 F.Supp. 566 (D.D.C.1964), opinion by Judge Youngdahl, recently followed by our court in United States v. Carmichael, 152 U.S.App.D.C. 197, 469 F.2d 937 (1972), and now reaffirmed in Coefield’s ease.

2. Review is also permissible, as heretofore illustrated by both Waters and Ward, to determine whether the sentencing process has conformed with the standards set forth in those cases. These standards we have now amplified as above set forth when the youth offender is sentenced as an adult and not under subsection (b) or (c) of section 5010. In such event the finding required to be made under section 5010(d) as a condition to an adult sentence is to be explicit — “affirmative” as said in Waters — and must be supported by reasons from which it can be determined that it is consistent with the purposes of the Act.

The judgment of conviction is affirmed. The sentence is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion.

APPENDIX

The Senate Report, states that the “purpose of the proposed legislation is to provide a new alternative sentencing and treatment procedure for persons under the age of 24 . . . ” S.Rep. No. 1180, 81st Cong., 1st Sess. 1 (1949).

Reliable statistics demonstrate, beyond possible doubt, that the period in life between 16 and 23 years of age is the focal source of crime. It is during that period that habitual criminals are spawned.

H.R.Rep. No. 2979, 81st Cong., 2d Sess. at 2 (1950), U.S.Code Cong. & Admin.News 1950, at 3984 (hereinafter cited as H.R.Rep.).

It is believed that by its provision the problem of crime will be met at its fo- ■ cal point, namely, before the traits of the habitual criminal are allowed to develop. .

H.R.Rep. at 1, U.S.Code Cong. & Admin.News 1950, at 3983.

Congress seemed convinced that adult penal institutions were failing:

Again, reliable statistics demonstrate, with reasonable certainty, that existing methods of treatment of criminally inclined youths are not solving the problem. A large percentage of those released ... return to antisocial conduct and ultimately become hardened criminals.

H.R.Rep. at 2, U.S.Code Cong. & Admin.News 1950, at 3985.

Congress also seemed convinced that such facilities were corruptive of the youths placed in them:

By herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and by subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques, without the inhibitions that come from normal contacts and counteracting prophylaxis, many of our penal institutions actively spread the infection of crime and foster, rather than check it.

H.R.Rep. at 2-3, U.S.Code Cong. & Admin.News 1950, at 3985.

Congress found that young people between the ages of 16-22, especially, were hopeful subjects for rehabilitation:

Most of the causes which contribute to antisocial conduct of youth offenders in the period between adolescence and maturity disappear when the youth reaches full maturity.

H.R.Rep. at 3, U.S.Code Cong. & Admin.News 1950, at 3985. The problem for Congress was therefore,

to provide a successful method and means for treatment of young men between the ages of 16 and 22 who stand convicted in our Federal courts and are not fit subjects for supervized probation — a method and means that will effect rehabilitation and restore normality, rather than develop recidivists.

H.R.Rep. at 3, U.S.Code Cong. & Admin.News 1950, at 3985.

Congress believed it found the alternative in a very successful English program:

[the program proposed] is not experimental. It is based on the principles and procedures developed under what is known as the Borstal system in England, which has been in successful operation since 1894.

H.R.Rep. at 3, U.S.Code Cong. & Admin. News 1950, at 3985.

Congress found that the Borstal system had a rate of recidivism of only 8.1 percent. H.R.Rep. at 6.

Treatment under the Act was not intended to be only for those who were certain to be rehabilitated or benefited. H.R.Rep. at 3. Thus, a variety of facilities were to be provided, with various degrees of control and security as well as different programs: “[The Borstal system] now embraces 13 institutions. Some are walled. Others are completely open. Each institution has its own particular specialty.” H.R.Rep. at 5, U.S. Code Cong. & Admin.News 1950 at 3987.

In an early version of the bill this was specifically provided for as well as in the statute as finally enacted:

treatment in institutions of maximum security, medium security or minimum security types, including training schools, hospitals, farms, forestry and other camps. .

18 U.S.C. § 5011.

There is a provision also for allowing the Attorney General to choose among public and private facilities and programs. 18 U.S.C. § 5013.

In the 1943 Senate Hearings, Senator Kilgore stated the general understanding and expectation that about 10 percent or less of youth offenders would be sentenced to adult imprisonment. At that time the category of youth offenders included persons under 24 years. 1943 S. Hearings at 13.

Judge Parker in explaining a provision in 1943, the language of which in pertinent part is identical with section 5010(d) as enacted, stated:

We are dealing with them [youth offenders] in a more liberal way than we are with older offenders, in that we require, whatever the sentence given by the law be, that the judge shall have the discretion — he does not have to give them the benefit of this, but can sentence them like anybody else. You find some boys of 18 years who ought to be sentenced like anybody else — but instead of sentencing them to the sentence prescribed in the statute, he can send them to the Youth Authority Section for a period of 6 years.

1943 S. Hearings at 12.

During the intervening years subsequent to the 1943 Hearings and prior to the enactment of the Act, Congress, in order to extend the scope of the Act to youth offenders of even more doubtful rehabilitative possibilities added to the 1943 version of the proposed bill what is now section 5010(c), so that those youths who might not have qualified for treatment under section 5010(b) because of the inadequacy of the six year limitation, could be sentenced under the Act.

ROBB, Circuit Judge

(concurring):

I concur in Judge Fahy’s opinion, with one reservation. I reject any suggestion or implication that the Youth Corrections Act authorizes this court to disturb a lawful sentence imposed by a district judge in the exercise of his discretion and upon the basis of his informed evaluation of the defendant. The review of sentences is not our business, and so long as the district judge exercises his discretion responsibly, after considering the facts and the statute, we may not substitute our judgment for his. The standards we have formulated must not lead to appellate intrusion into the sentencing process.

MacKINNON, Circuit Judge

(dissenting) :

In my view this case should not be remanded to consider Coefield’s eligibility for a youth sentence because Judge Robinson adjudged an adult sentence for him a little over two months before he was sentenced by Judge Green. The imposition of an adult sentence of a youth offender when such sentence amounts to a final judgment involves an implicit finding that the youth offender would not benefit from Youth Act treatment. Moreover, ten months after Judge Green sentenced appellant, Judge Robinson denied a motion specifically requesting a Youth Act sentence and this decision is final. It was not appealed. This forecloses the subsequent litigation of that issue between the parties. In addition since the statute only provides that the sentencing judge shall “find” that the youth offender will not derive benefit, this does not require a statement of “reasons.”

I

Appellant Coefield was born on December 31, 1948. On July 31, 1968 he committed two robberies, by snatching, in which he obtained a total of $45. The victims were both women. His indictment for such offenses charging robbery in violation of D.C.Code § 22-2901 was returned on September 30, 1968 (Criminal No. 1548-68).

During the time he was released from custody awaiting trial he committed a similar robbery by snatching on April 26, 1969 in which he stole $10. Again the victim was a woman. The second indictment, which was for this offense, was returned on July 29, 1969.

Appellant was tried on the first indictment by a jury before Judge Aubrey E. Robinson, Jr., found guilty on both counts and on December 16, 1969 was sentenced to serve an adult sentence of two (2) to six (6) years concurrently on each count. He appealed this conviction and made a motion for release on work release program pending appeal. In denying said motion on September 15, 1970, Judge Robinson found:

[T]his Court concludes that the defendant is a sophisticated predator and a danger to the public and would continue to be so if released. .

Coefield’s appeal to this court on the first indictment was • dismissed sua sponte on November 2, 1970 by Judges Spottswood Robinson III and Robb when counsel’s motion for leave to withdraw was granted.

Appellant was tried on the second indictment by a jury before Judge June L. Green on December 17, 1969, the day after he was sentenced on the charges of the first indictment. A guilty verdict was returned on this charge of the second indictment and Judge Green adjudged another adult sentence for him on March 3, 1970 (two months and 18 days after he was awarded an adult sentence by Judge Robinson) of imprisonment of two (2) to six (6) years, to run consecutively to the adult sentence on the first indictment.

By petition dated November 1, 1971 appellant requested that his adult sentence adjudged by Judge Robinson be modified to one under the Federal Youth Corrections Act. This motion effectively raised the issue as to his eligibility for a Youth Corrections Act sentence. The motion was denied by order on December 21, 1971. No appeal was taken from this order, so that judgment is final.

II

It thus appears that when appellant came on for sentencing before Judge Green on March 3, 1970 he was already-serving an adult sentence which had been adjudged by Judge Robinson only two months and 17 days previously on December 16, 1969. In imposing sentence on the second indictment, apart from facing the practical impossibility of imposing a concurrent or consecutive Youth. Corrections Act sentence, Judge Green had the right to rely upon the regularity of Judge Robinson’s sentence and that regularity necessarily included a finding by Judge Robinson that appellant would “not derive benefit from treatment under [the Youth Corrections Act]” 18 U.S.C. § 5010(d). The decision by Judge Robinson to impose an adult sentence made it unnecessary for Judge Green to reconsider the appellant’s eligibility for a Youth Corrections Act sentence as that issue had been necessarily involved in Judge Robinson’s decision just two and one-half months before and Coefield is collaterally estopped from raising the issue in a subsequent action.

The doctrine of collateral estoppel is an aspect of the broader principle of res judicata; it applies to both civil and criminal proceedings, and extends to facts necessarily involved in an issue or necessarily implied by a judgment, Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948), Pena-Cabanillas v. United States, 394 F.2d 785, 786 (9th Cir. 1968) as well as to facts actually decided.

If there were any doubt as to the conclusive nature of the first sentence on file issue of Coefield’s eligibility for YCA treatment, that doubt was completely removed by Judge Robinson’s order of December 21, 1971 which denied a specific motion to modify appellant’s sentence so as to impose one under the Youth Corrections Act. That same issue cannot again be raised by appellant. I thus see no necessity to discuss any of the considerations treated by the opinion of the majority.

Ill

The majority opinion imposes the requirement for the future that the sentencing court state the “reasons” upon which it may base its finding

that the youth offender will not derive benefit from treatment under [the Youth Corrections Act] ....

18 U.S.C. § 5010(d).

The Youth Corrections Act, however, only requires that

[T]he court shall find that the youth offender will not derive benefit from [youth] treatment under subsection (b) or (c) .

18 U.S.C. § 5010(d) (Emphasis added.)

“Reasons differ from findings in that reasons relate to law, policy, and discretion rather than facts.” 2 K. Davis, Administrative Law § 16.12 (1958). The opinion of the majority in requiring “reasons” thus imposes a requirement not imposed by Congress and goes even further than the Supreme Court went in S.E.C. v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943), where it refused to enforce “formal requirements” upon an administrative agency. And courts have always been permitted wider latitude in this respect than administrative agencies. I thus see no justification for placing our trial courts in an administrative straight jacket on sentencing youth offenders, which incidentally involves a subject over which we have very little control. It is accordingly my conclusion that the majority opinion in this respect exceeds our authority.

IV

I also dissent specifically from the statement at page 1155, supra, that:

The fact that Coefield was already serving an adult sentence not imposed under the Act, does not establish by implication the requisite finding.

This fails to give adequate consideration to the prior judgment and completely overlooks the effect of the contemporaneous sentence and judgment on the issue of “no benefit.” Judge Green’s trial began the day after Coefield was sentenced on the first offense and she was not ignorant of his sentence thereon. She confirmed her awareness of his prior sentence by fashioning her sentence to run consecutively to the prior sentence. The prior sentence was also referred to by counsel at the time of allocution. While a sentence which was adjudged long after a prior adult sentence, for some purposes, might not be controlled by an implicit “no benefit” finding in a prior offense because of changed circumstances, such is not this case. The two sentences here were practically contemporaneous, with no material intervening circumstance, except that appellant was convicted upon a second indictment which charged his third offense. This additional conviction was not a factor likely to cause any fair-minded judge to impose more lenient punishment.

In addition, I would refrain from relying upon the claimed conduct of appellant while serving his sentence in prison as a basis of our interfering in the sentencing function of the trial court. We are in no position to evaluate a prisoner’s conduct in prison. We have no jurisdiction to impose our judgment or philosophy as to sentences. Such matters are for the trial court and the Parole Board and the facts necessary to such a determination are not a proper part of this record on appeal. It is improper for the majority opinion to rely upon the sketchy facts here presented.

' In conclusion, I repeat that I see no reason to remand this case to the trial court to consider the eligibility of this appellant for a Youth Corrections Act sentence when appellant was given an adult sentence by another court shortly, before the instant sentence and when the identical issue as to whether appellant was entitled to an adult sentence was raised on motion in the first case and determined adversely to appellant by Judge Aubrey E. Robinson, Jr. shortly after appellant’s sentence by Judge Green.

      . There was additional testimony from the ladies that appellant called on the telephone several days later, “asking us about his ten dollars. When were we going to give him his ten dollars back,” and that appellant wanted to meet the girls somewhere.

      . Appellant at the time was serving sentence of two to six years for another pickpocketing robbery of $40.00.

      . Our source for this information is the memorandum submitted by appellant’s counsel subsequent to oral argument. It is not questioned by the Government.

      . H.R.Rep.No.2979, 81st Cong., 2d Sess. 1 (1950), U.S.Code Cong. & Admin.News 1950, p. 3983.

      . As repeated in Ward, the judge “may resort to the adult sentence ‘only if the applicable facts in the individual case meet the statutory requirements,’ ” 147 U.S.App.D.C. 151, 454 F.2d 994, in accordance with the intention of Congress.

      . This section reads as follows:
      (e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings. Added Sept. 30, 1950, c. 1115, § 2, 64 Stat. 1087.

      . Where the court sentences under the Act, without more, the possibility of challenge to the sentence is so remote that we need not now dwell upon whether more might be required in an exceptional situation we do not envisage.

      . See footnote 7 and text at p. 1157, both supra.

      . The Court of Appeals for the Fourth Circuit has recently approved our Waters and Ward decisions in the following language :
      In two recent cases the District of Columbia Circuit has held that under “§ 5010(d), the court must affirmativetively find that the youth offender will not benefit from rehabilitative treatment before the' offender can be sentenced as an adult . . . ” United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 724 (1970); United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971). We agree with these decisions and have concluded to follow them.
      In the instant case the district court made no finding that Cox would not benefit from treatment as a youth offender; and when on motion under 28 U.S.C.A. § 2255, the absence of the finding was urged as a ground warranting relief, the district court found as a fact that “[i]n sentencing Petitioner, the court made no finding that Petitioner would not benefit from treatment under [the Act],” and specifically rejected the holding of Waters on the ground that the legislative history of the Act made it clear that the Act was not intended to remove the discretion of the district judge whether or not to sentence a convicted youthful offender under the statute governing his offense or under the Act.
      Irrespective of the legislative history, the language of the Act is quite specific. It requires a finding that a youth offender will not benefit from treatment under the Act before the district court “may” sentence the youth as an adult. We agree with the language in Waters that “[w]hile the District Court does have discretion to sentence a 19-year-old ‘youth offender’ under either the applicable statutory offense provision or the Youth Corrections Act, we believe this discretion is circumscribed by the findings of fact in the individual case which the District Judge is required to make either explicitly or implicitly,” 437 F.2d at 725, and “[w]hile the District Court is given discretion in regard to sentencing, that discretion must be exercised in accordance with the intention of Congress underlying the statutory provisions . . . ”, 437 F.2d at 727. Like Ward, the implications which can be drawn from the failure to make an explicit finding in this case are too uncertain for us to conclude that there was an implicit finding that Cox would not benefit from sentencing under the Act, especially when the district court found that it had made no finding.
      Earl French Cox, Jr. v. United States, 473 F.2d 334, 344 (4th Cir. 1972) (Reheard en banc, December 7, 1972).

      . We attach an Appendix containing portions of the legislative history of the Act, as furnishing additional background for our opinion.

      . The age as finally approved was 18 to 22 years,

      . S. 895, The Federal Corrections Act, Title III, § 2, proposed 78th Cong., 1st Sess. (1943). Hearing on S. 895 Before the Subcomm. of the Senate Comm, on the Judiciary, 78th Cong., 1st Sess. at 3 (1943) (hereinafter cited as 1943 S. Hearings) .

      . The 1943 provision read as follows:
      If the court shall find the youth offender will not derive benefit from treatment and should not be committed to the Authority under subsection (a), then the court may sentence the youth offender under any other applicable penalty provision. . . .
      Federal Corrections Act, Title III, § 1(c), 1943 S. Hearings at 3.
      Section 5010(d) reads:
      If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.

      . It should also be noted that the sentence adjudged by Judge Robinson of two to six years would mean that appellant would be 22 years, 11 months and 16 days of age before he would have served the minimum portion of his sentence on the charges of the first indictment. An offender to be eligible for sentencing under the Youth Corrections Act must be under the age of 22 years at the time of conviction, 18 U.S.C. § 5006(e). The obvious intent of this provision was to place a top ceiling on the age when an offender could enter the youth correction treatment program. Appellant here could not enter the program on his second sentence at a minimum until he was 15 days short of his 23rd birthday and he might be considerably older before he would have fully served his sentence. Thus, while he would satisfy the literal requirements of the statute that he be under 22 at the time of conviction he would not satisfy the real objective that Congress had in mind when it imposed the 22 year age limitation, i. e., that the youth offender not be above 22 when he starts serving his Youth Act sentence.

      . Since most courts, including the Supreme Court, often decide cases without opinions, administrative opinions can hardly be a requirement of due process of law. The Court of Claims once asserted that the requirement of written opinions is a “cardinal principle of Anglo-Saxon jurisprudence.” Of this dictum Professor Radin has written that “the word ‘cardinal,’ the word ‘principle’ and the word ‘Anglo-Saxon’ are somewhat excessive.” Professor Radin points out that courts in California, Arkansas, and Montana have held statutory requirements of written judicial opinions to be unconstitutional, and courts in eight states have interpreted such requirements to be directory and not mandatory. For compelling unwilling agencies to prepare opinions, due process is a much less promising weapon than section 8(b) of the Administrative Procedure Act which, for determinations required by statute to be made on the record after opportunity for agency hearing, requires not only findings and conclusions but also a statement of “the reasons or basis therefor . . . . ”
      2 K. Davis, Administrative Law § 16.13 (1958).

      . It conceivably may be argued from the reference to Fed.R.Crim.P. 35 in Judge Robinson’s denial of the motion to impose a youth sentence, that the trial court merely did not consider Coefield to have been “illegally sentenced,” and still did not consider the YCA. But this argument refuses to recognize the even more obvious implication that in the denial by the trial court of Coefield’s specific motion to sentence him under the Youth Corrections Act, the court found that Coefield was not eligible under the statute for YCA treatment, because if he had been eligible, the court was required to sentence him under the YCA. I would conclude from Judge Robinson’s citation of Fed.R.Crim. P. 35 that he considered “an illegal sentence” was not involved because he had properly considered Coefield’s eligibility for Youth Corrections Act treatment.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America v. William C. HURT a/k/a Charles W. Hurt, Appellant. UNITED STATES of America v. Robert L. HUFF, Appellant.
    Nos. 72-1015, 72-1016.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 11, 1972.
    Decided March 21, 1973.

      Erwin G. Krasnow, Washington, D. C., with whom Michael Yourshaw, Washington, D. C. (both appointed by this court), was on the brief, for appellant in No. 72-1015.
    William W. Beckett, Washington, D. C. with whom James A. Sheridan, Washington, D. C. (both appointed by this court), was on the brief, for appellant in No. 72-1016.
    Joseph E. di Genova, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    Before McGOWAN, Circuit Judge, HARRISON L. WINTER, Circuit Judge for the Fourth Circuit, and MacKINNON, Circuit Judge.

       Sitting by, designation pursuant to 28 U.S.C. § 291(a) (1970).

   PER CURIAM:

Appellants William C.' Hurt and Robert Huff were indicted for first degree murder (D.C.Code § 22-2401) and convicted of second degree murder (D.C. Code § 22-2403) after a joint trial. We have consolidated their appeals, and for the reasons expressed below affirm both convictions.

I.

On August 21, 1970 at approximately midnight Richard Mitchell was stabbed to death in the parking lot of the Golden Gate Lounge at 8th and K Streets, N.W. by two assailants. There were at least four witnesses to the stabbing — Nathaniel Black, Charles Thomas, Patricia Tierney and Diane Evans, all of whom viewed the incident from approximately 30 feet. The police arrived at the parking lot at 12:30 a. m. and broadcast a radio “lookout” for the two suspects at approximately 12:55 a. m. The radio “lookout” described the two suspects as Negro males, one 6 feet 2 inches tall, weighing 180 pounds, wearing khaki shirt and trousers and named “Charles.” The second suspect was described as 5 feet 4 inches tall, weighing 120 pounds, and wearing a red shirt and khaki trousers. The “lookout” also noted that they were last seen running west on K Street, and were believed to live in the vicinity of 1004 Massachusetts Avenue, N.W. At 1:15 a. m. appellants were spotted by a patrol wagon as they walked near 10th and Massachusetts Avenue, N.W., approximately five blocks from the murder scene. The officer in the patrol wagon noticed that one of appellants (Hurt) was tall and had on khaki shirt and pants, while the shorter one (Huff) had on a brown or tan pullover shirt over a red T-shirt and dark pants. When the officer asked Hurt his name he replied “Charles.” At this point the officer noticed blood on the pants and shoes of Hurt. He asked both appellants to accompany him to the parking lot at the murder scene and they both complied. At the police station the clothes of both appellants were taken for evidence because they contained quantities of a substance suspected to be blood. Huff’s shoes and hat were found to have blood on them, as were Hurt’s trousers and boots. The blood on Huff’s right shoe was identified as type AB. The blood on the victim’s pants was also identified as type AB. Neither Huff nor Hurt had type AB blood.

On August 25, 1970 a lineup was held at which time Patricia Tierney identified Hurt but not Huff, while Nathaniel Black was unable to identify either appellant. Counsel for appellants were present at this lineup. On August 16, 1971, a year later, Black was able to identify Hurt from a picture of the lineup shown to him in the U.S. Attorney’s office. Tierney again identified Hurt from this same photograph on September 16, 1971, shortly before trial. Also on that day Charles Thomas identified both Hurt and Huff from the lineup picture. Neither counsel for appellants was present at these photo identification sessions.

On the day of the trial Huff moved to sever his trial and this motion was denied. Thereafter, the judge held a Simmons hearing on the admissibility of the photo identification of Huff made by Thomas. After examination of Thomas the court ruled that it would permit him to testify having found nothing suggestive in the pretrial photographic identification (Tr. 15,18).

II.

Both appellants argue first that plain error was committed by admission of evidence based upon the pretrial photographic identifications. Huff maintains that it was plain error for the trial court not to suppress all of Thomas’ identification testimony because (1) the pretrial photographic identification of Huff by Thomas was so unfair as to violate due process, (2) it was made without the presence of counsel, (3) there was no independent basis for the in-court identification, and (4) Thomas should have been required to attend a lineup. Hurt raises the first two arguments with respect to the identification testimony of Black. Since none of these objections were raised at trial, we consider them now under our authority to notice plain error.

We find no plain error with respect to the photographic identification evidence introduced here. First, it is asserted that the totality of the circumstances surrounding the pretrial photographic identifications by Black and Thomas were so unfair as to constitute a denial of due process. Appellants both rely on the recent case Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) wherein the Supreme Court reviewed, inter alia, its four prior decisions on the scope of due process protection in the context of suggestive identification procedures. The Court stated:

We turn, then, to the central question, whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

93 S.Ct. at 382. Appellants contend that an application of these factors to the photographic identifications here reveals that there was a violation of due process. However, as Biggers makes clear, these factors are to be considered only after an identification procedure has already been determined to be suggestive. The factors are to be used to determine whether, irrespective of the suggestivity of the procedure, there are sufficient indicia to conclude that the identification was reliable. In the case of the photographic identifications by Black and Thomas there have been no allegations nor facts indicating any suggestivity, and with respect to Thomas’ identification the Simmons hearing specifically found none.

While the passage of a year between the crime and the pretrial photographic identification would certainly dim a witness’ memory this fact alone cannot support a conclusion that appellants’ due process rights have been violated. United States v. King, 149 U.S.App.D.C. 61, 63-64, 461 F.2d 152, 154-155 (1972). We have reviewed the totality of the circumstances and do not find that there is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L. Ed.2d 1247 (1968).

Appellants’ second argument that the photographic identifications violated their right to counsel must also fail. We have held that United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972) shall have only prospective application, i. e., it applies only to photographic identifications made after March 1, 1972. United States v. Gillum, 150 U.S.App.D.C. 121, 463 F.2d 957 (1972). Further, we find no merit in Hurt’s attempts to distinguish the facts surrounding Black’s identification from United States v. Brown, 149 U.S.App.D.C. 43, 461 F.2d 134 (1972).

Huff’s claim that the Simmons hearing did not elicit an independent basis for Thomas’ in-court identification is without merit. No independent basis is required unless the identification is found to be suggestive, and there was no such finding here. Finally, Huff implies that Thomas should have been compelled to attend a corporeal lineup rather than merely making a photographic identification. We note that there is no absolute constitutional right to a lineup. United States v. King, 149, U.S.App.D.C. 61, 64, 461 F.2d 152, 155 (1972). At the time the lineup was held on August 25, 1970 Thomas was unknown to the police conducting the investigation. While a promptly held lineup conducted soon after Thomas’ discovery by the police may have produced a more reliable identification, we find that the failure to hold such a lineup did not violate due process.

III.

The second argument raised by both appellants is that it was reversible error for the court not to have severed their trials under Fed.R.Crim.P. 14. We have previously noted the scope of the judge’s discretion in such matters in United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971). There we stated:

The decision to grant a severence of defendants properly joined for trial is one over which the trial court possesses great discretion and exercise of that discretion will be reversed on appeal only when it is shown to have been clearly abused. The general rule is that defendants charged with jointly committing a criminal offense are to be jointly tried.

146 U.S.App.D.C. at 83, 449 F.2d at 1159 (footnotes omitted). Hurt contends that he was prejudiced by the mere presence of Huff in the court room, because Hurt was the taller defendant and two witnesses testified that the “taller” man did the stabbing. Since the two witnesses who had previously known Hurt testified that the “shorter” man did the stabbing, Hurt feels that this testimony would have been more readily received by the jury had he been tried alone. While this latter proposition may be true, “[t]he mere fact that appellant might have had a better chance of acquittal if tried separately . . . does not establish his right to a severance.” Robinson v. United States, 93 U.S.App.D.C. 347, 350, 210 F.2d 29, 32 (1954). See also, United States v. Wilson, 140 U.S.App.D.C. 220, 227, 434 F.2d 494, 501 (1970).

Hurt and Huff both argue that they were prejudiced by their joint trials because of the “irreconcilable defenses” that each asserted. Huff relied on an alibi defense, while Hurt maintained that Huff and he were both drinking at the Golden Gate Lounge, and that Huff and the victim had gone into the parking lot by themselves. Both appellants rely on our statement in Rhone v. United States, 125 U.S.App.D.C. 47, 365 F.2d 980 (1966) that

[pjrejudice from joinder of defendants may arise in a wide variety of circumstances as, for example, where the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.

125 U.S.App.D.C. at 48, 365 F.2d at 981 (emphasis added). We do not feel that either appellant has demonstrated nor do we find that prejudice to this degree was present because of the joinder of their trials. Cf. United States v. Robinson, 139 U.S.App.D.C. 286, 289, 432 F.2d 1348, 1351 (1970). Both appellants took the stand, and each of their conflicting defenses was subject to the scrutiny of the other’s cross-examination. Huff’s alibi defense was not contradicted solely by the testimony of his co-defendant, but Huff was placed at the murder scene by the testimony of witness Thomas and also the evidence of the victim’s type blood on appellant Huff’s shoe. This testimony and evidence would have been admissible against Huff even in a separate trial. Further, we note that the jury was instructed on a number of occasions to consider the evidence individually against each defendant (Tr. 479, 503, 521).

IV.

Huff makes two other arguments which we dispose of briefly. First, he maintains there was no probable cause for his arrest and therefore the clothing seized thereafter should have been suppressed sua sponte by the court. It is basically his argument that he was arrested only because he was in the company of Hurt, who had been more accurately described in the radio “lookout.” He argues that there was insufficient evidence related directly to himself to constitute probable cause. However, we cannot merely consider the radio “lookout” and evidence as it related solely to Huff. “Probable cause is a plastic concept whose existence depends on the facts and circumstances of the particular case.” Bailey v. United States, 128 U.S.App.D.C. 354, 357-358, 389 F.2d 305, 308-309 (1967). The fact is that the radio “lookout” was for two suspects, and since the two were arrested together we must view the presence of probable cause in light of all the evidence as it related to both defendants. Huff was arrested five blocks from the murder scene approximately an hour after the stabbing wearing a red T-shirt and brown pants, both described in the radio “lookout” (Tr. 186, 188, 349-51), in the presence of a suspect who not only fit the “lookout” description quite accurately but answered to the name given and had visible blood on his clothes and shoes. Under these circumstances a discrepancy of 6 inches in height and 40 to 50 pounds in weight between the “lookout” description and Huff’s actual description cannot negate all of the other indicia of probable cause. We find that no plain error was committed when the trial court did not sua sponte 'suppress Huff’s clothing and shoes taken after his arrest.

Finally, Huff contends that the court abused its discretion by admitting into evidence a photograph of the murder victim when the photograph was irrelevant and inflammatory. We find, however, that the photograph did have probative value when it was introduced, and was therefore admissible. Harried v. United States, 128 U.S.App.D.C. 330, 336, 389 F.2d 281, 287 (1967). Given the blood on appellant’s shoe, it was relevant and material to show the amount of blood on the ground around the victim’s body. Further, having examined the photograph, we find nothing inflammatory about it.

The convictions of both appellants are therefore

Affirmed.

      . The record does not disclose Hurt’s actual height and weight at the time of the murder. Huff testified he was 5' 10%" and weighed 163 at that time (Tr. 350).

      . At trial Black stated, “I couldn’t identify anyone that night. The lights were kind of dim” (Tr. 74).

      . The trial judge stated that since Hurt was going to take the stand, his testimony would be subject to Huff’s cross-examination and therefore he could see no prejudice (Tr. 4).

      . A Simmons hearing (Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) is conducted prior to an in-eourt identification to determine first,, whether the pretrial identification has been violative of due process or the right to counsel, and second, if a violation is found, the court determines whether there is an independent source for the in-eourt identification which would nonetheless support its admissibility. These procedures were outlined in Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968).

      . Fed.R.Crim.P. 52(b).

      . Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . Tr. 15.

      . See note 4, supra. Even though the court need not have found an independent basis for Thomas’ identification, the record of the Simmons hearing indicates that an independent basis did exist. See Tr. 10-14.

      . Tr. 6.

      . Fed.R.Crim.P. 14 provides:
      If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney, for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

      . Both Charles Thomas and Patricia Tierney knew Hurt prior to the stabbing.

      . Since the suppression issue has been raised for the first time on appeal, it is being considered under a plain error standard. Washington v. United States, 134 U.S.App.D.C. 223, 225, 414 F.2d 1119, 1121 (1969).

      . See part I and note I, supra.

      . At trial after Huff’s attorney objected that the photograph was too prejudicial and emotional, the trial judge admitted the photograph stating, “I find it quite the opposite. ... I don’t find it inflammatory. There is no picture of the man’s head. I think the position of the blood in and around the area is going to be part of the circumstantial proof. Therefore, I will be willing to receive it” (Tr. 216-17).


author: BAZELON, Chief Judge:

text:
    UNITED STATES of America v. Charles MAYNARD, Appellant. UNITED STATES of America v. Kermit N. GILBERT, Appellant.
    Nos. 24938, 24939.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 10, 1972.
    Decided March 26, 1973.

      Ruth L. Prokop, Washington, D. C. (appointed by this court), for appellant in No. 24,938.
    Preston Brown, Washington, D. C. (appointed by this court), for appellant in No. 24,939.
    James A. Adams, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Richard N. Stuckley, Asst. U. S. Attys., were on the brief, for appellee. Harold H. Titus, Jr., U. S. Atty., and John F. Evans, Asst. U. S. Atty., also entered appearances for appellee.
    Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.
   BAZELON, Chief Judge:

Charles Maynard and Kermit Gilbert were jointly tried and convicted of the assault and armed robbery of one Paul Gueory. During the course of their trial, evidence was admitted that Maynard’s sole defense witness, Mrs. Constance Kemper, had been charged with obstruction of justice for her alleged efforts to persuade Gueory not to identify her brother, the appellant Gilbert. On the grounds that the admission of this evidence was error and worked substantial prejudice to Maynard's defense, we reverse Maynard’s conviction.

Gilbert contends that handwritten notes taken during a police interview of Gueory should have been available to his defense under the Jeneks Act, 18 U.S.C. § 3500 (1970), and Brady v. Maryland. These notes were delivered to the United States Attorney’s office, but were unavailable at the time of trial. Since the record fails to disclose the reason for their disappearance, or any inquiry into the effect thereof, we remand Gilbert’s case for a hearing to develop these facts and to consider the issues raised under the Jeneks Act, Brady, and this court’s decision in United States v. Bryant. In addition, we direct the trial court to consider whether the impeachment of Constance Kemper through reference to her arrest for obstruction of justice was prejudicial error as to Gilbert.

The reasons for our decision follow.

I.

The relevant facts concerning the crimes for which Maynard and Gilbert were charged, as told by the victim Gueory, are as follows:

Around noon on October 18, 1969, as Gueory was returning to his rooming house at 1775 T Street, N.W., he overheard that a group of men on the street was looking for one Earl Robinson who resided at the same address. Gueory recognized the appellant Gilbert, although he did not then know him by name, as being among the group discussing Robinson.

As soon as Gueory reached his room and opened his window, someone in the street group fired a shot in his direction. Gueory spent the rest of the day in his room with his girlfriend Doris Green and other friends, and admitted shooting heroin at ten or eleven at night. At approximately one in the morning of October 19, Gueory left his room to go to the Manhattan Bar on the corner of Eighteenth and T streets. As he crossed an alley on Eighteenth, Gilbert and another man approached him. Gueory wanted to tell them that he had nothing to do with Earl Robinson, but was hit by Gilbert with a gun and was attacked by three other men all carrying weapons. One of these men robbed him of the cash he was carrying. Gilbert threatened to kill Gueory, while Gueory continued to deny that he had anything to do with Earl Robinson.

The four assailants forced Gueory back to his rooming house and he showed them the room belonging to Robinson. As the attacker whom Gueory later identified as the appellant Maynard kicked open Robinson’s door, Gueory attempted to climb the stairs to his own room. He heard Gilbert yell “Where in the hell do you think you’re going?” and was immediately struck in the legs by a shotgun blast. He continued to crawl up the stairs and was helped into his room by Doris Green.

To this story, Doris Green added only that she had identified Gilbert sitting in front of the rooming house around midnight on that evening and that she knew her cousin, Earl Robinson, had taken something belonging to Gilbert. After Gueory was shot, she escaped from the rooming house via a bathroom window and telephoned for an ambulance. Gueory was taken to Freedman’s Hospital.

II.

The Government’s case against the appellant Maynard rested solely on the identification of Maynard by Gueory and Gueory’s testimony concerning a conversation he held with Maynard while still in the hospital.

Gueory testified that he by chance recognized Maynard, whom he did not know before the attack, when Maynard was visiting another patient in Freedmen’s Hospital. At the time, Gueory reported this to no one, but several days later Maynard again visited the hospital, this time in the company of a woman who identified herself to Gueory as being Gilbert’s sister, Constance Kemper.

According to Gueory’s testimony, the .sister proceeded to show him a picture of Gilbert and asked him not to identify the picture if the police showed it to him. She told him that if he agreed, he would be well taken care of, that she would bring some “goodies” or “five green apples” which Gueory understood to mean money.

Gueory further testified about a bedside conversation he held with Maynard, which proceeded substantially as follows : Gueory accused Maynard of being one of his assailants, which Maynard denied. Thereupon Gueory said to Maynard “You had a .45, didn’t you?” to which Maynard replied no, he had a .38. Gueory stated that he could have Maynard arrested right then, and Maynard replied, “Yeah, I know you can.” Gueory then told Maynard that he had no animosity and did not want to press any charges.

After his release from the hospital, Gueory made a full statement concerning this visit to Detective Dean Caldwell, who had been questioning .him since the shooting. Maynard was arrested on November 21, 1969.

At trial, Maynard did not take the stand to testify in his own behalf. His primary defense witness was Gilbert’s sister, Mrs. Kemper, who contradicted Gueory’s version of the events at the hospital bedside. Mrs. Kemper stated that Gilbert’s trial counsel had asked her to take a picture of Gilbert to the hospital to see if Gueory could identify him as one of the assailants. Maynard accompanied her from the lawyer’s office. Mrs. Kemper stated that Maynard and Gueory did not converse at all, and that as she spoke with Gueory, Maynard walked away to visit another patient.

Her version of the substance of her discussion with Gueory also differed from Gueory’s. Mrs. Kemper denied that she offered Gueory a bribe. She said Gueory recognized the picture of Gilbert but would not respond when asked if Gilbert shot him. She did get him to agree to sign a statement that Gilbert had not shot him. When asked on the stand what had resulted from this hospital visit, Mrs. Kemper responded:

“I was charged with obstruction of justice. And I would never do anything to jeopardize myself, my family, or my job.”

The Government attempted to impeach Mrs. Kemper with her grand jury testimony to the effect that, contrary to her testimony at trial, Gueory had specifically denied that Gilbert had shot him.

III.

Appellant Maynard’s principle contention on appeal arises out of the trial judge’s ruling to admit evidence that Mrs. Kemper had been arrested and charged, but not convicted, for obstruction of justice. The Government specifically requested such a ruling, and indicated that it would ask Mrs. Kemper a direct question to this effect during her cross-examination.

The theory uncler which the Government sought the admission of such evidence was that it indicated her bias, or motive for testifying in an exculpatory manner. Counsel for Maynard strenuously objected on the ground that the prejudice resulting from the admission of the charge would far outweigh its probative thrust. The trial court ruled that the evidence would be admitted on the Government’s theory, at which point Maynard’s defense counsel made the tactical decision to raise the issue of the arrest during his direct examination of Mrs. Kemper. He therefore elicited the testimony quoted supra,. Maynard now contends that the admission of this statement was reversible error.

As a general rule it is improper to impeach a witness by showing an outstanding indictment without a final conviction. The reasons behind this rule are that the mere fact of arrest or indictment is still consistent with innocence; an indictment involves repetition of someone else’s assertion of the witness’ guilt; and it raises a confusing, collateral issue to the case at trial.

In certain situations, however, external facts from which may be inferred a specific bias, or motive to testify in a particular way, are admissible to impeach a witness — e. g., facts which show a familial, employment, or litigious relationship. Since the range of facts from which bias may be inferred is vast, hard and fast rules permitting or excluding specific types of impeachment evidence might be unwise. Thus it may be argued in some cases that the pendency of an indictment against a witness produces a discernible motivation to falsify testimony such as: ill feeling for the person who procured the indictment; interest in currying a favorable disposition from the prosecution; or, as in this case, the self-serving need to exculpate oneself concerning the events charged as a crime.

The Government argues that the trial court’s decision to admit the arrest evidence to impeach Mrs. Kemper was not error, since the scope of cross-examination to elicit bias must be broad and is within the discretion of the trial judge. Further, the use of an indictment to show this particular type of bias has been approved in other Circuits.

As there appears to be no direct precedent in this Circuit, however, we are persuaded by appellant’s argument that the prejudicial effect of the admission of the arrest and charge in this case outweighed its probative substance. Admission of these facts was simply not necessary to show that Mrs. Kemper had good reason to testify as she did. Gueory’s own testimony had already revealed to the jury all the facts on the basis of which Mrs. Kemper could be charged with a crime. Her motive for denying Gueory’s accusations and for testifying about her own actions in an exculpatory manner was unmistakeable. Finally, her being charged with a crime was probative of no more than that the prosecutor, or the grand jury, chose to believe Gueory and not Mrs. Kemper.

In this context, the extra impeachment provided by proof of the arrest and indictment is marginal. One can say that showing that this witness was under indictment evidenced a more forceful motive to exculpate herself than the general need to avoid incrimination. One can speculate that such a witness would be particularly spiteful against the person (Gueory) who got her into such difficulty, and give testimony accordingly. But the additional proof of interest is marginal, and it must be weighed against the very substantial prejudice to defendant Maynard from the admission of this evidence.

Knowledge of an arrest and indictment weighs heavily in the minds of laymen and casts the shadow of doubt on the witness’ veracity. This was particularly unjustified in Maynard’s case since Mrs. Kemper’s arrest did not give her a specific motive to falsify her testimony about Maynard’s conversation with Gueory. What Maynard said and did was unrelated to her alleged bribery attempt. Therefore, admission of her arrest served the purpose against Maynard for which such evidence is excluded in this Circuit — that of general impeachment of the witness’ truthfulness. For these reasons, admission of this evidence over the objection of Maynard’s counsel was error.

We disagree with the trial court’s characterization of any prejudice which might have resulted as “minimal.” After a careful scrutiny of the entire record, we are not assured that “the judgment was not substantially swayed by the error.” Mrs. Kemper was Maynard’s principal defense witness. It was her word against Gueory’s. It seems highly probable that the jury would be swayed by the knowledge that she was charged with obstruction of justice into discrediting her crucial testimony about the hospital confrontation. Therefore, Maynard’s substantial rights to a fair trial were prejudiced and his conviction must be reversed.

We close by taking note of a problem of procedure. We are holding that Maynard is entitled to a reversal on the ground of the error of the trial judge in ruling that his witness, Mrs. Kemper, was subject to impeachment by a showing of her arrest and indictment, even though that fact was elicited by Maynard himself. Maynard’s counsel did what he could to dilute, but he could not remove the prejudicial impact of the ruling. His offer of the evidence was in submission to the ruling of the District Court. Defense Counsel objected to the prosecution’s proposal, fully argued the matter to the trial judge, was bound by the ruling. As counsel he was under a restraint against rearguing a point that had been fully argued. We think he was fairly entitled to treat the ruling as definite and complete, and to do what he fairly could to limit the prejudicial impact of the ruling.

IV.

Appellants Gilbert and Maynard contend that the rough notes taken by Detective Caldwell during his initial interrogation of Gueory in the hospital should have been made available to the defense under Brady v. Maryland and the Jencks Act. Trial counsel for both appellants repeatedly requested production. At the pre-trial hearing to suppress Gueory’s identification of Maynard, Detective Caldwell testified that Gueory first responded to his questions about the shooting on October 20, 1969. At that time Gueory also indicated that he did not want to prosecute. Caldwell testified that during this interview Gueory identified one assailant by the name “Big” Gilbert, and described the others as follows: “Another was a Negro male of about six foot with a bush haircut and had glasses on. The other two subjects, he said, were short. He had never seen them in his life. He didn’t know any of them.”

Caldwell further testified that he had taken rough notes consisting of at least four or five pages, that he would have written down any descriptions given to him, and that he had turned over these notes to the Assistant United States Attorney in charge of the case a few months before trial.

At the conclusion of the direct examination of Gueory, which included his identification of both appellants, counsel for Maynard and Gilbert moved to strike Gueory’s testimony on the ground that the rough notes had not been produced. A search of the Government’s file had revealed no notes, and the Assistant United States Attorney prosecuting the case stated that they must have been “thrown away.”

The trial court did not rule that the notes would not be subject to production, but stated that he would not hold up the cross-examination of Gueory at that time. If the documents were located, Gueory would be re-called for additional cross-examination. The trial court’s only statement at trial concerning the Government’s duty, and failure, to preserve and produce such notes was that the Government should make every effort to locate them and that there “would be no conspiracy to withhold it.”

Further inquiry into the disappearance of the notes took place during a hearing on appellants’ motions for a new trial on October 14, 1970. The court at that time ruled that Detective Caldwell’s notes were not producible under the Jencks Act because the contents of the notes had not been clarified, and because there was no indication that Gueory had adopted or approved Caldwell’s transcription of his statements pursuant to section (e) (1) of the Jencks Act.

These reasons, and the Government’s assertion in its brief that it is “highly speculative” that these rough notes contained substantially verbatim statements producible under section (e) (2) of the Act, do not meet the thrust of appellants’ arguments and this court’s ruling in United States v. Bryant.

First, defense counsel did attempt to clarify the contents of the notes as discussed above. It appears that the notes might well have contained Gueory’s statements of a descriptive nature, or statements about “Big” Gilbert which might have been favorable to the defense. This court has previously discussed the importance of such notes and the information they might contain.

Second, while it is clear that the duty of the Government to produce notes under the Jencks Act and under Brady cannot be definitely resolved because the notes cannot be scrutinized, the trial court’s inquiry should not founder on impossibility. In Bryant, this court held that the Government’s “duty of disclosure is operative as a duty of preservation” which extends to all “discoverable” evidence, defined as including all evidence which “might” have to be produced under Brady or the Act. Bryant further held that “sanctions for non-disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures” for preserving evidence.

Since there were no such regular procedures in force at times relevant to these cases, as in Bryant the trial court must employ a case-by-case determination of the degree of bad faith, negligence or inadvertence which led to the nondisclosure of arguably discoverable evidence. It is particularly important to note that the police officer preserved the notes and transmitted them to the United States Attorney’s Office. Thus the usual administrative reasons which might have once justified, or at least excused, the police department’s failure to preserve such notes are not applicable. The trial court below failed to focus on whether a different or higher duty to preserve evidence ought to apply to the prosecutorial branch of the Government. If the notes were “thrown away” and not just lost, this showing of bad faith, negligence or inadvertence cannot be ignored.

“a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.”

Further, there was no consideration of the appropriate sanction which might have been applied in light of a violation of the duty of preservation. The Jencks Act calls for exclusion of the testimony of the witness whose statements were recorded. What portion of Gueory’s testimony would be affected must be determined. It has also been suggested that in a case where notes have been discarded, the “absence of notes may be . best handled by instructing the jury with an adaptation of the kind of instruction used in case of a missing witness, that the jury is free to infer that the missing original notes would have been different from the testimony at trial and would have been helpful to defendant.”

The trial judge is in the best position to determine what the circumstances of this case require, after consideration of the actions of the United States Attorney and the importance for the impeachment of Gueory which the notes might have served. Accordingly, it is necessary that appellant Gilbert’s case be remanded for an inquiry into these points; to determine whether a sanction for nonproduction should have been imposed; and to determine whether Gilbert must receive a new trial.

If appellant Maynard is re-tried, the trial court must undertake a similar inquiry if Gueory testifies and if Detective Caldwell’s notes are not produced.

V.

Appellant Gilbert urges that his trial should have been severed from Maynard’s because of their antagonistic defenses. Gilbert’s motions for severance prior to trial, on the first day of trial, at the conclusion of the Government’s case, and his motion for a new trial were all denied.

Under Rule 14 of the Federal Rules of Criminal Procedure the court may grant severance if a defendant is “prejudiced” by joinder. This determination rests largely within the discretion of the trial court and the standards for review in this court were set forth recently:

In order to demonstrate abuse of discretion by a trial judge, one must show more than the fact that co-defendants whose strategies were generally antagonistic were tried together.
. At the very least, it must be demonstrated that a conflict is so prejudicial that differences are irreconcilable, and “that the jury will unjustifiably .infer that this conflict alone demonstrates that both are guilty.”

According to Gilbert’s argument, the source of the conflict is that Maynard’s defense required use of Mrs. Kemper as a witness to rebut Gueory’s testimony incriminating Maynard. Once she was on the stand, admission of her arrest for obstructing justice lent credibility to Gueory’s version of the entire hospital visit and caused the jury to infer Gilbert's guilt from Gueory’s version of the desperate bribery attempt. Since Gilbert would not have called upon Mrs. Kemper in a separate trial, the prejudicial impact of the arrest evidence was a result of the joinder and should have been avoided through severance.

However, our decision that the admission of the indictment was erroneous in the first place would appear to shift the focus of this claim. The real issue is whether admission of the arrest to impeach Mrs. Kemper was as substantially prejudicial to Gilbert as it was to Maynard.

The evidence implicating Gilbert in the attack on Gueory was stronger than was the case against Maynard. Balanced against this, Gilbert presented an alibi defense in his own behalf which was corroborated by three companions. Whether admission of Mrs. Kemper’s arrest swayed the jury in these circumstances is a difficult question on which we do not have the full benefit of argument or of the trial court’s consideration. Therefore, in the context of the remand of Gilbert’s case it would be appropriate for the trial court to direct an inquiry into this issue and to determine whether on this ground Gilbert must be awarded a new trial.

We have considered the other issues raised by Maynard and Gilbert and find them to be without merit. Should Maynard be re-tried, the Legal Aid investigator’s report will be available to him.

Accordingly, the judgment in No. 24,938, United States v. Maynard, is reversed and No. 24,939, United States v. Gilbert, is remanded pursuant to this opinion.

      . Maynard was convicted of armed robbery, 22 D.C.Code §§ 2901, 3202 and assault with a dangerous weapon, 22 D.C.Code § 502. Gilbert was convicted of assault with intent to kill while armed, 22 D.C. Code §§ 501, 3202, armed robbery, 22 D.C. Code §§ 2901, 3202 and assault with a dangerous weapon, 22 D.C.Code § 502.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . 142 U.S.App.D.C. 132, 439 F.2d 642, aff’d after remand 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971).

      . Transcript at pp. 113-186. Unless otherwise noted, citation to Transcript will refer to the dates of the trial, September 24, 25, 28, 29, 1970.

      . Transcript at p. 65.

      . Transcript at pp. 200-208.

      . Transcript at pp. 137-139.

      . Maynard’s only other defense witness was Detective Caldwell who testified about Maynard’s arrest. Transcript at pp. 272-274.

      . Transcript at p. 294.

      . Transcript at p. 278.

      . Transcript at pp. 279-280.

      . Transcript at p. 280.

      . Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Sanford v. United States, 69 U.S.App.D.C. 44, 98 F.2d 325 (1938); 3A Wigmore, Evidence § 980a (Chadbourn rev. 1970). See also Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124 (1958); Beasley v. United States, 94 U.S.App.D.C. 406, 218 F.2d 366 (1954), cert. denied, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243 (1955); Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949). Cf. Lee v. United States, 125 U.S.App.D.C. 126, 368 F.2d 834 (1966).

      . See 3A Wigmore, Evidence § 949 (Chadbourn rev. 1970). Accord, United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972).

      . See, e. g., the examples cited in United States v. Lester, 248 F.2d 329, 334-335 (2d Cir. 1957).

      . Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931).

      . See Terminal Transport Co. v. Foster, 164 F.2d 248 (5th Cir. 1947), a civil case for wrongful death which involved the impeachment of the alleged wrong-doer with the fact that he had been indicted for killing the victim. The court gave no reasons for approving this type of impeachment, but cited two Alabama Supreme Court cases. Terminal Transport was cited for illustrative purposes only in United States v. Lester, supra note 15, 248 F.2d at 334.

      . Although Maynard relies heavily on McGill v. United States, 106 U.S.App.D.C. 136, 270 F.2d 329 (1959) that case involves a witness for the prosecution with charges pending against him which might influence him to curry the favor of the government in his testimony. In McGill, the trial court would only permit cross-examination about promises of leniency. This court upheld that ruling, stating “[b]ias cannot be shown simply by testimony of an arrest . . . where no conviction has resulted and where no showing is made of promises of leniency or the like.” 106 U.S.App.D.C. at 137, 270 F.2d at 330. The type of bias referred to differs considerably from the type of bias the Government was trying to show in Mrs. Kemper, a defense witness.

      . Cf. United States v. Colonial Motor Inn, Inc., 440 F.2d 1227 (1st Cir. 1971).

      . At appellants’ hearing on their motions for a new trial, the trial court expressed some uncertainty about this ruling; but concluded that even if the court were wrong, the prejudice was minimal. The court’s basis for this conclusion appears to be that Gueory himself was discredited by extensive cross-examination into his drug addiction. See Transcript for October 14, 1970, at pp. 99-100.

      . Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). See also Campbell v. United States, supra note 13, 85 U.S.App.D.C. at 135-136, 176 F.2d at 47-48.

      . Transcript at 7, 135, 143-145. With regard to the P.D. Form 251 referred to cursorily in appellant Maynard’s brief, the very existence of this so-called “missing” document was not proven.

      . Transcript at p. 12. Caldwell initially stated that Gueory could not offer any descriptions of his assailants, Transcript at p. 6, but later indicated that in fact descriptions had been given.

      . Transcript at p. 13.

      . Transcript at pp. 9, 51.

      . Transcript at p. 14.

      . Transcript at p. 7. Caldwell also testified that he thought photostatic copies were made and turned over to defense attorneys. Transcript at p. 10.

      . Transcript at p. 145.

      . Transcript at p. 144.

      . Transcript at p. 145.

      . Section (e) (1) of the Jencks Act defines a “statement” which must be produced by the Government as follows:
      “a written statement made by said witness and signed or otherwise adopted or approved by him.”

      . Section (e) (2) defines a statement as follows:

      . United States v. Bundy, 153 U.S.App.D.C. 191, 472 F.2d 1266 (1972); see also United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1336 (dissenting opinion of Chief Judge Bazelon).

      . 142 U.S.App.D.C. at 141, 439 F.2d at 651.

      . 142 U.S.App.D.C. at 142, n. 21, 439 F.2d at 652 n. 21.

      . 142 U.S.App.D.C. at 142, 439 F.2d at 652. It was noted in Bundy, supra note 33, that the Metropolitan Police promulgated preservation procedures. 153 U.S.App.D.C. at 192, 472 F.2d 1267, n. 3.

      . United States v. Bundy, supra note 33, 153 U.S.App.D.C. at 193, 472 F.2d at 1268 (concurring opinion of Judge Leventhal).

      . The factors to be considered upon remand were stated in Bryant as follows: “the District Court should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice.” 142 U.S.App. D.C. at 143, 439 F.2d at 653.

      . Transcript at pp. 103, 226, and Transcript of October 14, 1970, at p. 97.

      . United States v. Robinson, 139 U.S.App.D.C. 286, 289, 432 F.2d 1348, 1351 (1970), citing Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (1954) and Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966).

      . Gueory claimed to have identified Gilbert by sight at the time of the crime, and Gilbert was also identified by Doris Green. In addition, there was evidence from Gueory that just prior to trial Gilbert had approached him suspiciously. Transcript at pp. 302-304.

      . Transcript at pp. 192-208.


author: PER CURIAM.

text:
    SHU FUK CHEUNG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 72-1482.
    United States Court of Appeals, Eighth Circuit.
    Argued Feb. 13, 1973.
    Decided April 20, 1973.
    Bruce W. Okney, Minneapolis, Minn., made argument for petitioner.
    Richard I. .Chaifetz, Atty., Dept, of Justice, Washington, D. C., made argument for respondent.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Chief Judge, District of South Dakota, sitting by designation.

   PER CURIAM.

Petitioner, Shu Fuk Cheung, appeals the Board of Immigration Appeals’ affirmance of the Special Inquiry Officer’s decision finding him in violation of 8 U.S.C.A. Sec. 1251(a)(2), and ordering his deportation to Hong Kong.

On- August 17, 1971, petitioner was apprehended at the Foo Chu Cafe in Minneapolis, Minnesota, during an area control-illegal entry check made by two Immigration Service investigators. The investigators interviewed the petitioner with regard to his immigration status and determined that he could not satisfactorily substantiate his right to be in the United States. Petitioner was arrested and escorted to the Immigration Service offices where a sworn statement was taken. Through the services of an interpreter, petitioner was advised of his constitutional rights to remain silent and to have counsel present. Cheung signed a waiver of these rights. Questioning by the investigators elicited petitioner’s landing permit and a number of interpreted verbal responses which an investigator incorporated into a handwritten affidavit signed by petitioner, providing the basis for detaining Cheung for possible deportation.

On August 18, 1971, a hearing on an order to show cause why Shu Fuk Cheung should not be deported was continued at petitioner’s request to afford him an opportunity to obtain counsel. Cheung appeared at the reconvened hearing on September 21, 1971, represented by counsel. At his attorney’s direction Cheung remained silent to all inquiries. Thus the only testimony and evidence produced was the government's.

Petitioner Cheung contends that his apprehension during an area control search by immigration officers, who entered the restaurant knowing only that the restaurant employed oriental persons and served oriental food, was illegal. He also urges that the government failed to sustain its burden of proof on the issue of deportability. Both issues were decided adversely to petitioner by the Board of Immigration Appeals. We affirm.

The scope of this court’s review is limited to the administrative record, and the findings of fact therein are taken as conclusive “if supported by reasonable, substantial, and probative, evidence on the record considered as a whole” 8 U.S.C.A. Sec. 1105a; Au Yi Lau v. United States Immigration and Naturalization Service, 144 U.S.App.D.C. 147, 445 F.2d 217, 219 (1971). The paucity of the immediate record is attributable to the decision of petitioner’s counsel to instruct his client to remain mute before the Special Inquiry Officer. It is upon that record that this court reviews petitioner Cheung’s appeal.

The administrative record is barren of any of the surrounding circumstances preceding the apprehension which petitioner contends is illegal. Counsel for petitioner presumes that the seizure took place in the kitchen of the cafe, that the officers were without authority to enter that kitchen, and that the sole purpose for the officers’ presence in the kitchen was for an area control-illegal entry check. The record is lacking any factual basis for these assertions. The record produced by the administrative process and presently before this court for review is void of any evidence to support Cheung’s complaint that he was seized, interrogated and arrested unconstitutionally.

The record reveals that the immigration officers apprehended Cheung during an area control-illegal entry check of an oriental cafe. His answers to their inquiries were, evidently, of such an unsatisfactory nature that an arrest was made. Even from the sketchy record now before us we can conclude that Cheung must have been detained temporarily for this interview.

Congress specifically vested the Immigration and Naturalization Service (INS) with statutory powers enabling interrogation of suspected aliens for possible violations of immigration laws. This statutory authority grants

to immigration officers the right to seek to interrogate individuals reasonably believed to be of alien origin. The underlying rationale of that decision was that the minimal invasion of the privacy of the individual approached for questioning was justified by the special needs of immigration officials to make such interrogations. This allowance for mere questioning, which assumes the individual’s cooperation, is analogous to decisions which have contemplated the same scope of authority for police officers (footnotes omitted).

Au Yi Lau v. United States Immigration and Naturalization Service, 144 U.S.App.D.C. 147, 445 F.2d 217, 222 (1971), accord, Cheung Tin Wong v. United States Immigration and Naturalization Service, 468 F.2d 1122 (D.C.Cir. 1972). The record does not disclose a constitutional deprivation in petitioner Cheung’s apprehension.

This court’s finding that petitioner’s apprehension was not illegal leaves the second issue for review without merit. The evidence introduced before the Special Inquiry Officer consisted of the Order to show cause issued by the District Director, petitioner’s signed affidavit, petitioner’s Crewmans Landing Permit, and petitioner’s Seaman’s Identity Book. Cheung contends the first three items were secured pursuant to an illegal detention and arrest and should be excluded as the fruits of an unconstitutional search and seizure. The Seaman’s Book, bearing an “excellent photograph” of the petitioner, was obtained from the government’s administrative file and received over petitioner’s objection as to foundation. On the basis that the record failed to substantiate petitioner’s constitutional claim we find the first three exhibits admissible. “In deportation hearings, rules of evidence applicable in courts of law need not be followed. The admission of evidence which a court would regard as legally insufficient does not vitiate deportation proceedings.” United States v. O’Rourke, 211 F.2d 609, 611 (8th Cir. 1954); see also Ah Chiu Pang v. Immigration and Naturalization Service, 368 F.2d 637, 639 (3rd Cir. 1966). These exhibits show that petitioner was born in China and had entered the United States on January 15, 1970, as a nonimmigrant crewman authorized to remain in America for as long as his ship remained in port, not to exceed 29 days. He has remained in the United States continuously since that date and possesses no authority to do so. This proof standing unrefuted is fatal to petitioner’s appeal.

The deportation order is affirmed.

      . One reason for checking a cafe such as this one, as noted by the District of Columbia Court of Appeals in Cheung Tin Wong v. United States Immigration & Naturalization Service, 468 F.2d 1123, 1127 (D.C.Cir. 1972), is that many illegal entrants find employment in and around food service establishments, particularly those specializing in their native cuisine and where other employees are likely to be conversant in their native language.

      . 8 U.S.C.A. See. 1357 (a) (1) provides:
      (a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
      (1) to interrogate .any alien or person believed to be an alien as to his right to be or to remain in the United States;