author: BAZELON, Chief Judge: WRIGHT, Circuit Judge MacKINNON, Circuit Judge

text:
    UNITED STATES of America v. Anthony A. RILEY, Appellant.
    Nos. 72-1227, 72-1228.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 22, 1973.
    Decided July 3, 1973.

      Paul R. Hoeber, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave with whom William Gray Schaffer, Washington, D. C., was on the brief, for appellant. Jonathan Axelrod, Washington, D. C., also entered an appearance for appellant.
    David M. Bullock, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Brian W. Shaughnessy, Asst. U. S. Attys., were on the brief, for appellee. Harry J. McCarthy, Asst. U. S. Atty., also entered an appearance for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   BAZELON, Chief Judge:

On November 23, 1971, appellant pled guilty to armed robbery and attempted armed robbery, arising out of two separate incidents at the same dry cleaning establishment. On March 10, 1972, he was sentenced to two to ten years’ imprisonment on the first charge and one to three years’ imprisonment on the second, the sentences to run concurrently.

He appealed, alleging that the District Court improperly denied him Youth Corrections Act sentencing pursuant to 18 U.S.C. § 5010 (1970). This court ordered motions for summary reversal and summary affirmance held in abeyance pending decisions by the court en banc in United States v. Coefield, United States v. Reed, and United States v. Hoston.

Appellant also moved for a stay of the adult sentence, and for interim commitment to the Lorton, Virginia, Youth Corrections facility. At oral argument on that motion, the Government advised the court that an expanded youth facility would shortly become available at Lorton, and that this information had not been before the District Judge at sentencing. We accordingly remanded the record “to afford the District Court an opportunity to reconsider its sentence, if it is so disposed,” and stated:

We do not know what weight, if any, was given the overcrowded condition of the Lorton youth facility by the District Court at the time of sentencing. The District Court declined to alter the adult sentence, and this court subsequently declined to rule summarily on the merits or to stay the sentence.

Decisions have now issued in Coefield, Reed and Hoston, and this case has been argued. We vacate the adult sentence and remand for resentencing.

I

Section 5010(d) of the Youth Corrections Act states that an otherwise eligible offender may be sentenced as an adult “[i]f the court shall find that the youth offender will not derive benefit from treatment under [this Act].” In Coefield we held that this finding must be explicit, and that it must be supported by a statement of “reasons from which it can be determined that [the sentencing decision] is consistent with the purposes of the Act.”

We also held that when the District Court has ordered a temporary commitment for observation and study pursuant to section 5010(e), and has followed that study’s recommendations, “additional reasons need not be stated.” But this is merely an adoption of the reasons stated in the section 5010(e) report. It does not obviate the need for exposure of the factors which informed and shaped the sentencing decision, nor relieve this court of responsibility to determine whether those reasons, from whatever source, demonstrate a present and visible rationality.

II

In this case the District Court ordered a section 5010(e) study and followed its recommendation that appellant be denied Youth Corrections Act sentencing. Since the District Judge did not state additional reasons, we must turn to the section 5010(e) report, which the Judge ordered sealed and made a part of the record, to see whether Coefield’s requirements have been met.

One justification for adult sentencing appeared in each section 5010(e) recommendation available to the sentencing judge: the Lorton facility had no room. We may dispose of this at the outset. Tillman held “There is no legal authority for diverting otherwise eligible youths to adult institutions due solely to lack of space.” Rather, we said, “the courts should respond ... by ordering that facilities adequate to handle all but the ‘exceptional case’ be provided.”

Moreover, the overcrowding cited existed only at the Lorton Youth Center. An affidavit placed before the sentencing judge by defense counsel indicated that there was ample space at other Youth Corrections facilities. There is no authority for refusing Youth Corrections Act sentencing to a District of Columbia code offender on the sole ground that the Lorton facility is full. Pursuant to sections 5010(b) and (c), all Youth Corrections Act sentences are merely “to the custody of the Attorney General.” The only consequence of the fact that a youth offender violated a law applicable exclusively to the District of Columbia is that his treatment and rehabilitation may be financed from the appropriation for the District of Columbia.

But, if we exclude the consideration of overcrowding, the record is devoid of reasons demonstrating the required “ ‘present and visible’ rationality” of an adult sentence. The Lorton psychologist, whose findings and analysis formed the base of the pyramid of recommendations that reached the sentencing judge, openly stated his belief that Riley “could benefit from the programs of this institution.” The three member Lorton Classification Committee rendered a substantially similar report two days later:

[A] commitment to the Youth Center would be most appropriate under normal conditions. However, because of the current overcrowded space and facilities at the Lorton Youth Center, meaningful treatment cannot be provided.

When these reports reached the District of Columbia Board of Parole, it too recommended the denial of a Youth Corrections Act sentence because of the overcrowding at Lorton. Drawing on the reports of the psychologist and the Classification Committee, its statement at first blush adds additional elements:

Mr. Riley has a pattern of aggressive robbery type of offenses, with weapons involved. He has been on probation and involved in juvenile correctional programs but such measures have not reversed the trend. He is well versed in current asocial activity and appears quite sophisticated in spite of his age. The Board does not see this case as being a priority type of Youth Center case.

The District Judge read these statements, with the exception of the last sentence quoted, into the record at sentencing and again on the remand. They are at least addressed to the issue that is relevant on Youth Corrections Act sentencing— the defendant’s rehabilitative potential.

But they are fatally flawed here by two defects. First, even if these statements are relevant to the proper inquiry, they do not provide reasons supporting the required no-benefit finding. As we observed in Tillman, a prior record, particularly of juvenile offenses, does not compel a finding that an offender would not benefit from Youth Corrections treatment. “While an offender’s prior record is clearly pertinent, its mere recitation, without a showing of how it evidences his incapacity to benefit from rehabilitative treatment, is not an adequate reason.” Nor does prior probation or experience in “correctional programs,” whose rehabilitative programs are unarticulated, alone demonstrate that appellant would not benefit from the rehabilitative treatment provided under the Act. We find no statement of reasons connecting these ambiguous statements with a conclusion that appellant would not benefit.

Second, it is doubtful, especially in light of later developments in the sentencing process, that the authors of these comments believed that they would support the no-benefit finding that the trial judge made. Riley’s trial counsel, showing commendable dedication, communicated with the Federal Bureau of Prisons, and was informed that space existed at Youth Corrections facilities other than Lorton. He conveyed this information to the Vice Chairman of the District of Columbia Board of Parole. The Vice Chairman responded by writing the District Court a most candid letter for the Board. In pertinent part, it read :

A careful study of [the Board’s] recommendation indicates, in the last sentence of the . . . paragraph [quoted above], “The Board does not see this case as being a priority type of Youth Center case” that under normal circumstances if there was space available at the Lorton Youth Center Mr. Riley would have been recommended for such a commitment.
. Certainly the Board would see [placement in a Bureau of Prison youth facility] as being superior to placement in an adult facility.

Thus, not only did the Board fail to articulate reasons, but it saw none sufficient to support a no-benefit finding.

In Coefield we said that a trial judge may adopt the reasons in a section 5010(e) report as his own when he follows that report. But when the report provides no reasons cognizable under the Act, neither reliance on the report itself nor a simple oral recitation of the factual statements made in that report will suffice. Moreover, even when reasons are supplied, if the report finds the sum total of permissible reasons inadequate to support a finding of no benefit, it is incumbent on the sentencing judge to articulate his reasons for reaching a contrary conclusion. Absent such an explanation, the offender must be sentenced under the Act.

Since the section 5010(e) report does not support the imposition of an adult sentence, and since the trial judge added no reasons of his own, we must vacate the sentence and remand for re-sentencing in compliance with Coefield. As we stated in Tillman, nothing precludes the sentencing judge from ordering a new section 5010(e) report to aid him in resentencing. So ordered.

WRIGHT, Circuit Judge

(concurring) :

In United States v. Reed and Hoston, 155 U.S.App.D.C. 198, 476 F.2d 1145 (1973), this court en banc articulated the appellate test for the sufficiency of the reasons given for denying Youth Corrections Act treatment. The court stated that “[a]n appellate court can only be concerned with the rationality of those [reasons] in relation to the Congressional objectives. Where that rationality is present and visible, its function is at an end.” 155 U.S.App.D.C. at 203, 476 F.2d at 1150. Here the decision of the District Court and the recommendation in the Section 5010(e) report were significantly influenced by. the overcrowding at the Lorton YCA facility. Overcrowding at the Lorton YCA facility is an irrational reason for not imposing a YCA sentence, particularly since other YCA facilities available to the Attorney General are hardly more than half populated. In any event, now that the overcrowding at the Lorton facility is apparently ended, I agree that this case should be remanded for reconsideration of the sentence in the light of a current Section 5010(e) report.

MacKINNON, Circuit Judge

(dissenting) :

In zeal to interject impermissibly its own philosophy into the sentencing process, the panel majority relies upon its assumption that the record in this case did not justify the trial court to adjudge an adult sentence. The panel majority reaches this conclusion by a combination of routes. It (a) ignores appellant’s criminal record, (b) misstates some of the findings of responsible officials and omits other findings, (c) distorts the important portion of an official finding by fragmenting and separating that which it considers favorable from the more important conclusion which is contrary to its position, and then ends up (d) by second guessing the psychologist and others charged with the duty of recommending appropriate treatment for convicted criminals. In short, the panel which has never even seen the appellant, much less interviewed him, sets its judgment over that of practically all those experts who have had contact with him, and then usurps the sentencing function of the trial judge who has a constitutional right and duty to make his own decision in adjudging a proper sentence.

(a) Ignoring Appellant’s Criminal Record

The panel opinion nowhere alludes to the extensive criminal record of appellant. He was bom on July 1, 1953.

His juvenile and adult record in the presentence report indicates:

5/24/65 Petit larceny
12/13/65 Petit larceny
1/ 3/66 Petit larceny
5/ 5/66 Housebreaking
6/29/66 Disorderly
8/17/67 Tampering with an auto and petit larceny
10/17/67 Robbery
12/13/68 Attempted burglary II
2/25/69 Petit larceny
2/ 5/70 Robbery (force & violence)
6/30/70 Robbery (holdup) (armed)
3/30/71 Armed robbery (revolver)
6/ 1/71 Attempted robbery

This record speaks for itself. Concerning the offense committed on June 1, 1971, appellant’s classification study dated December 30, 1971 contains the following statement:

The subject has admitted his guilt in the instant offenses but denied using a gun. He stated that no weapon was necessary as he knew very well how to get into a cash register and had often robbed stores by simply distracting the employee and quickly taking money from the cash register. He stated that he committed the robberies because he needed money for drugs. (Emphasis added.)

The Presentence Report of February 3, 1972 also states:

[Appellant] explains that he is a heroin addict who has developed a two spoon per day habit. He was therefore forced to steal approximately $60.00 per day to avoid withdrawal symptoms.

This admission indicates he may have committed many more offenses than those for which he was apprehended and convicted.

To complete appellant’s record, the following should be added:

Subject also reported a 3 year commitment on January, 1971, to the juvenile facility, but to which he was never sent, because he made good an escape from the court and was not apprehended until arrested on the instant offenses. (Emphasis added.)

So escape should be added to the admitted offenses. The failure of the panel opinion to consider the criminal record of the person they are dealing with ignores a highly significant factor that was properly considered by the sentencing judge. The sentencing judge also had before him the following recommendation of the Chief Probation Officer:

May 15, 1972
MEMORANDUM TO THE HONORABLE JOHN LEWIS SMITH, JR.
Re: RILEY, Anthony CC #1510-71 and CC #1670-71
SUBJECT: Order of the Court of Appeals
The Court of Appeals has remanded the record in the above styled case to afford Your Honor “an opportunity to reconsider” your sentence, if you are so disposed. This action appears to be predicated on the basis of information given to the Court of Appeals that “an expanded youth facility serving the District of Columbia will shortly become available.”
I have been in touch with Mr. Robert Whitaker, Superintendent of the Lorton Youth Center. He advises me that additional facilities will not be available for several months at the earliest. Considering the number of youthful offenders at the jail or in the Lorton complex, the outlook is not good. According to Mr. Whitaker, they could practically fill a new facility if they had one, from these youthful offenders.
As Your Honor may recall, and before you imposed the sentences which you did in these cases, I had sent complete material to the Bureau of Prisons to see whether they would designate a Federal youth institution for Mr. Riley. The Bureau of Prisons reported back that they believed he should remain in the District of Columbia. They also referred to Mr. Riley’s failure in the past to respond to youth type programs, to his apparent sophistication in spite of his age, and to the aggressive nature of his offenses. [] In the absence of available alternatives, I see nothing to be gained at this point by Your Honor’s reconsidering your sentence.
Respectfully submitted,
George W. Howard Chief U. S. Probation Officer
GWH: dmc
(b) Misstatements and Omissions of Official Findings

The majority opinion states that, excluding overcrowding:

[T]he record is devoid of reasons demonstrating the required “present and visible rationality” of an adult sentence.

Supra at 3. It is apparent to an unbiased observer that the mere statement of appellant’s extensive criminal record, heroin addiction, escape and failure of prior correctional attempts implicitly demonstrates many valid reasons for a trial court to adjudge an adult sentence, particularly when so recommended by the proper officials, as is the case here.

It is unnecessary to deal with the claim that the reason appellant did not receive a YCA sentence was because there was overcrowding of YCA facilities at Lorton because no such reason entered into the final sentence which is all that is before this panel. Some of the references on this point in the majority opinion confuse the circumstances of the initial sentence with the sentence re-imposed after remand. The concurring opinion states that the sentence and the § 5010(e) recommendation “were significantly influenced by the overcrowding at the Lorton YCA facility,” but counsel for appellant at oral argument in this court denied any such conclusion when he stated:

It is not perfectly clear but it appears from that memorandum on remand that he [the sentencing judge] was not relying on the overcrowded conditions at Lorton. (Emphasis added.)

Moreover, conditions in the YCA facilities at Lorton or elsewhere are immaterial because the court found in its May 17, 1972 Memorandum (see n. 3), “that the defendant would not benefit from a sentence under the Youth Corrections Act.” (Emphasis added.) In reliance on note 18 of Judge Bazelon’s opinion, Judge Wright states that there were “other YCA facilities available to the Attorney General [that] are hardly more than half populated,” but this is also irrelevant to this case because appellant was not eligible for such YCA facilities. Even if he was eligible there is no assertion or proof in this record that the facilities referred to were available for D.C.Code offenders of crimes (non-federal) — such as Riley. In any event Judge Wright has merely raised a red herring because, as stated above, the reason the adult sentence was adjudged was not because of overcrowding at the Lorton YCA facilities.

As to additional reasons in the record for imposing an adult sentence, the following data must be considered:

(1) In its report of January 18, 1972, the Board of Parole recommended to the sentencing judge:

Following conviction for Armed Robbery and Attempted Robbery, the above named youth was sentenced by your Honor under Section 5010e of the Youth Corrections Act for a period of observation and study. The Classification Committee at the Youth Center has recommended that Mr. Riley should be sentenced under Title 18 United States Code Section 4208(a)(2).
The Board of Parole recommends an adult commitment. The option to use provisions of Title 18 United States Code Section 4208(a)(2) is not seen as being available in light of type of offenses in issue.
Mr. Riley has a pattern of aggressive robbery type of offenses, with weapons involved. He has been on probation and involved in juvenile correctional programs but such measures have not reversed the trend. He is well versed in current asocial activity and appears quite sophisticated in spite of age. The Board does not see this case as being a priority type of Youth Center case.
Foregoing is submitted to the Court for its adjudication of this case together with a copy of the letter from the Superintendent of the Youth Center and a copy of the Classification Study. (Emphasis added.)

The Clinical Psychologist on December 28, 1971 had stated:

It is felt that Mr. Riley could benefit from additional education, vocational training, and psychotherapy. Although it is believed that he could benefit from the programs of this institution, it is recommended that he be sentenced under the provisions of Section 4208(a) 2.

However, the Youth Services Division on January 14,1972 had recommended:

Recommended Adult Commitment. Option to use provisions of 18 U.S.C. § 4208(a) (2) not seen as being available in light of type of offenses in issue. Young man has a pattern of aggressive robbery type offenses, with weapons involved. Has been on probation and involved in juvenile correctional programs but such instances have not reversed the trend. Well versed in current anti social activity and appears quite sophisticated in spite of age. Do not see this as being a priority type Youth Center case.

This was practically the same conclusion as that of the Board of Parole on January 18,1972, quoted above.

(2) The Presentence Report of Feb. 3, 1972 rendered on the offense of “Attempted Robbery 22 DCC 2902”

Despite the Board of Parole’s recommendation to the contrary recommended that the defendant be sentenced under Section 5010b of the Federal Youth Corrections Act.

(3) But the Presentence Report rendered 21 days later on February 24, 1972 on the greater offense of “Armed Robbery (22 DCC 3202)” contained the following:

In this officer’s opinion, Riley is a very sophisticated, angry young man, who would not benefit from the Youth Corrections Act program because of his tremendous hostility toward authority and the system in general. His inability to receive any benefit from numerous attempts at juvenile rehabilitation should also be noted. He was on juvenile probation at the time of his involvement in the instant offenses. The juvenile record also reflects a previous period of probation, as well as three commitments to juvenile institutions. Therefore, it is respectfully recommended that Riley receive a medium period of incarceration under the regular adult sentencing statute. (Emphasis added.)

It is easy to see why a Presentence Report might recommend YCA for attempted robbery but recommend an adult sentence for the more serious offense of “Armed Robbery.” In any event the final report of February 24, 1972 takes all prior offenses into consideration and it is the final report that is of most importance to the sentence here adjudged. It recommends “a medium period of incarceration under the regular adult sentencing statute" and sets forth a full statement of adequate reasons. The trial court adjudged a sentence in accordance with this recommendation and nothing more is needed. As a matter of fact, the sentencing court was not required to follow the recommendation but it chose to do so and the sentence adjudged is unassailable.

(c) Coloring the Record

A good example of how the majority opinion tailors the record to give the strongest possible slant to the facts in an attempt to support its ultimate position is its treatment of a statement by a Lorton psychologist, one of the staff which produces material for the ultimate decision by the Board.

The Clinical Psychologist at the conclusion of his classification study of appellant of December 28,1971 stated:

It is felt that Mr. Riley could benefit from additional education, vocational training, and psychotherapy. Although it is believed that he could benefit from the programs of this institution, it is recommended that he be sentenced under the provisions of Section 4208(a) 2.

Now the majority opinion does not present or face up to this short statement in its true light but instead separates that which it considers to be favorable to its conclusion from which is unfavorable and presents it in two separated parts. Thus at page 6 the majority opinion states:

The Lorton psychologist whose findings and analysis formed the base of the pyramid of recommendations that reached the sentencing judge, openly stated his belief that Riley “could benefit from the programs of this institution.” (Emphasis added.)

It then relegates to footnote 15 the actual recommendation of the psychologist as follows: “He recommended, however, an indeterminate adult sentence under 18 U.S.C. § 4208(a)(2) (1970)” (emphasis added) and then argues the irrelevancy of this recommendation.

Thus the panel opinion unfairly emphasizes the portion it considers favorable to its conclusion by placing such portion in the body of the opinion, and burying in a footnote the more important part of the statement which constitutes the recommendation for adult sentencing with which the panel opinion disagrees. This manner of presenting the findings of the Clinical Psychologist does not fairly present his sentencing recommendation.

(d) The remainder of the panel opinion consists primarily of an attempt to psychoanalyze the reasons and philosophy of the sentencing judge and the sentencing recommendations and those participating in the studies leading up to the sentencing recommendations. No authority is needed for the statement that such action by an appellate court exceeds its jurisdiction.

(e) The Ubiquitous No-Benefit Requirement

The majority opinion further attempts to justify its remand for resentencing by claiming that the record does not disclose “the required no-benefit finding” (emphasis added), i.e., that appellant would not receive benefit from the Youth Corrections Act program. I find this conclusion to be in error on the facts, and the statement of the standard to be applied to be an incorrect construction of the Act. The second Presentence Report, the significant recommendation of which the majority report fails to quote, stated, inter alia:

[Appellant] is a very sophisticated, angry young man, who would not benefit from the Youth Corrections Act program because of his tremendous hostility toward authority and the system in general. His inability to receive any benefit from numerous attempts at juvenile rehabilitation should also be noted.

Presentence Report of February 24, 1972 (emphasis added).

The italicized finding is an adequate basis for the adult sentence imposed by the court and I am at a loss to understand the failure of the majority opinion to note, quote or refer to the text of this significant finding. Moreover, as previously stated, both appellant and the Government agree that the sentencing court did not adjudge its May 17, 1972 sentence upon the overcrowding at the Lorton Youth Center. And the court was fully entitled and required to come to its own conclusion as to a correct sentence regardless of the recommendation of staff personnel.

The sentencing judge had an opportunity personally to observe the appellant and is in a preferred position to determine an appropriate sentence for the offender and for the crime. To my mind he has properly discharged that duty and I would affirm his sentence. A proper deference to the recognized judgment and discretion of the trial court requires such affirmance.

It should also be noted that those statements in the panel opinion which state that a finding is required that a youth offender will “not derive benefit from treatment under [this Act]” before an adult sentence may be imposed are loose statements and oversimplification of the statute that fail to consider significant provisions of the Youth Corrections Act and fail to give it a common sense construction. Actually the statute provides:

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.

18 U.S.C. § 5010(d) (emphasis added). It is significant that the statute does not refer to “treatment under [this Act]" as the panel opinion states, but to “treatment under subsection (b) or (c).” (Emphasis added.) Noting this difference is important because subsections (b) and (c) in'turn refer to other sections of the Act which indicate that the objective of the “treatment” is discharge from supervision (release) as provided in § 5017(c) or (d) of the Act. This “discharge” (release) is the objective “benefit” referred to by the statute and it is the eligibility of offenders for this benefit that is the significant objective of any sentence to treatment and supervision under the Act.

When these cross references in § 5010(b) and (c) and § 5017(c) and (d) are noted it becomes clear that the congressional intent manifest from a reading of the entire Act is to provide for the treatment and supervision of youth offenders who “show promise of becoming useful citizens,” and are considered to be rehabilitable. In all common sense 18 U.S.C. § 5010(d) says, if the trial court has no good reason to believe that the offender will benefit from treatment and supervision available under subsection (c) or (d) that he should be sentenced under some other procedure that will benefit him. And certainly the benefit to an individual that Congress was talking about was not the benefit that any person would get solely from incarceration, or the limited benefit that would only be obtainable by a non-rehabilitable offender at the high cost of severe damage to the YCA treatment and supervision of others who do show promise of rehabilitation. Thus, a sentencing court is not required by the statute to adjudge a sentence under the Youth Corrections Act unless it can demonstrate that the offender will derive “no benefit” from YCA treatment and supervision. Instead the true meaning of the provision is that the court may refuse to impose a YCA sentence in those cases where it does not consider that the offender is a likely candidate ior rehabilitation within the maximum sentencing periods authorized by the Act. It would be an absurd construction to hold that a youth offender must be sentenced under the YCA on a mere failure to demonstrate that he would derive “no benefit” from such sentence because practically every youth offender could by some stretch of the imagination be found to receive “some” benefit from such treatment and supervision, even Jack the Ripper. The plain intent of the Act is to authorize the sentencing of those youth offenders who are considered to be rehabilitable and who will not further corrupt and poison the minds of the youth offenders with whom they may be confined who are promising candidates for rehabilitation.

It is clear that the staff and the court considered that appellant did not meet these basic, simple and reasonable requirements and hence he should be segregated with offenders of his own class. To confine such “sophisticated . angry” offenders, involving as they do a greater security risk, with youth offenders who do qualify for YCA treatment and supervision is to compel the conversion of a D.C. YCA facility in many respects into a D.C. penitentiary. That is the natural consequence of the recent YCA sentencing cases of this court on the D.C. youth correction facilities. It is obvious to anyone that if the Court of Appeals requires our trial courts to commit a lot of roughnecks, incorrigibles and sophisticated criminals to youth correction facilities, it is impossible to run a proper youth facility program. Such judicial destruction of the program Congress intended injures the rehabilitable youths the most. It deprives the YCA authorities of the “flexibility” which Congress intended to be one of the “cardinal principles” to be available to the authorities supervising the treatment and supervision of eligible youth offenders. It also deprives the hardened offender of proper treatment. Individuals who do not meet the basic eligibility requirements of being rehabilitable by the YCA process may also poison the whole youth correction system before, because of misconduct, etc., they are eventually transferred to the adult institution where they should have been placed at the outset. I accordingly dissent.

      . Appellant, 17 at the time of the offenses and 18 at the time of the pleas, was an eligible “youth offender” under the Act. See 18 U.S.C. § 5006(e) (1970) ; United States v. Coefield, No. 24,085, 155 U.S.App.D.C. 205 at 211, 476 F.2d 1152, at 1158 (1972).

        . No. 24,085, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973).

      . 155 U.S.App.D.C. 198, 476 F.2d 1145, (1973).

      . 155 U.S.App.D.C. 198, 476 F.2d 1145 ' (1973).

      . United States v. Riley, Nos. 72-1227, 72-1228 (D.C.Cir., order filed May 5, 1972).

      . 18 U.S.C. § 5010(d) (1970) (emphasis added).

      . United States v. Coefield, No. 24,085, 155 U.S.App.D.C. 205, at 212, 476 F.2d 1152 at 1159 (1973).

      . Id. at 210, 476 F.2d at 1157.

      . See United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200 (1973).

      . See United States v. Tillman, No. 71-1352, at 4 (D.C.Cir. June 6, 1973) ; United States v. Coefield, No. 24,085, 155 U.S. App.D.C. 205, at 210, 476 F.2d 1152 at 1157 (1973).

      . At the original sentencing the trial judge heard oral argument, and questioned the defendant about the disposition of his earlier arrests. The judge then pointed out that the § 5010(e) report had been adverse, quoted its language, mentioned an “adverse” presentence report, and imposed sentence. No independent reasons were stated.

      . United States v. Riley, Cr. Nos. 1510-71, 1670-71 (D.D.C., order filed March 13, 1972).
      The trial judge also ordered included two presentence reports and a “letter from the D.C.Parole Board signed by H. Albion Ferrell, Vice Chairman, D.C. Parole Board,” which is discussed below. Presentence reports are not given the same elevated status by our decisions as section 5010(e) reports. Hence, a judge cannot, by his silence, adopt “reasons” expressed in them as a basis for denial of Youth Corrections treatment.
      Moreover, it is doubtful that a contrary result would flow from such an adoption in this case. The first, and more comprehensive, report concluded:
      Despite the Board of Parole’s recommendation to the contrary, it is respectfully recommended that the defendant be sentenced under Section 5010b of the Federal Youth Corrections Act.
      The second report was prepared on February 24, 1972, at the order of the trial judge who continued sentencing from February 18 to March 3 for this purpose. It stated that the trial judge had requested “that the probation office update the [February 3, 1972 report] with the information concerning the instant offense.” The February 3 report had, however, been prepared after the November 23 guilty pleas.
      The second report recited an additional interview with appellant on February 22 in the U.S. District Court cellblock, found him “hostile,” and substantially reiterated the statements of the D.C. Board of Parole contained in the § 5010(e) report. This case thus turns on the sufficiency of the § 5010(e) report under any rule concerning presentenee reports.
      It is nonetheless disturbing to contrast the brief February SJ “supplemental” presentence report with the data reported in the § 5010(e) report. The psychologist described Mr. Riley as a “very lonely individual” who shows “much anxiety over his relationships with other people.” He reported that appellant was suffering role confusion because of his father’s early death, and concluded:
      However, on a more positive side, we find an individual who places emphasis upon seeing the world as others see it. He has some value system although it is not as yet integrated into his personality structure. In his attempts to make his environment safe, he does things in an orderly manner and is capable of functioning satisfactorily in a structured situation. He is aware of his problems and desires some type of corrective treatment.

      . No. 71-1352, at 7 (D.C.Cir. June 6, 1973).

      . See 18 U.S.C. § 5025(a) (1970). The Commissioner of the District of Columbia is authorized to provide facilities for local offenders, see id., or he may “contract with the Director of the Bureau of Prisons for their treatment and rehabilitation.” See id. A youth placed in the facility for local offenders remains under the supervision of the Commissioner. See id. § 5025(c).

      . He recommended, however, an indeterminate adult sentence under 18 U.S.C. § 4208(a)(2) (1970). This recommendation was either irrelevant or the product of an impermissible attempt to balance the values of the available sentencing alternatives without regard to the presumptions established by the Act. See United States v. Tillman, No. 71-1352, at 5 (D.C.Cir. June 6, 1973).
      In an affidavit filed with the District Court before sentencing, Riley’s attorney presented the results of interviews with two members of the Lorton Classification Committee. He reported:
      They stated that at the time they prepared the report for this Court that it was their recommendation that Mr. Riley be sentenced pursuant to [§ 4208 (a)(2)) because this provides for parole at any time “and is like a Youth Act commitment.” They further stated that since making this recommendation that it has come to their attention that [this section] is not applicable to the D.C. offenses, and that it has been their practice to in lieu of that recommendation to recommend commitment at a Federal Youth Center [sic].
      Riley’s attorney also reported that they said this is a “standard recommendation that is made in all cases until the current overcrowding at Lorton ceases.”

      . The record on which this statement rests reflects that appellant had been arrested 9 times for petit larceny, housebreaking, robbery, attempted burglary, and disorderly conduct. Five of these arrests occurred by the time appellant was 12 years old, and the last when he was 16. The record indicated that he was placed on probation at the age of 12 and, beginning that year, “committed to Department of Public Welfare” three times. No indication of the nature of this commitment, or whether any rehabilitative treatment was involved, appears in the materials that were before the sentencing judge and included in this record.
      Appellant has seven older siblings and one younger. His mother is in her fifties, cannot work because she is suffering from a painful, progressive, and incurable bone disease, and she lives on a social security pension. Riley has never known a father, and the Classification and Parole Officer stated:
      Overall [I] received the impression that the subject’s mother was a very concerned and interested parent limited by her own resources and unable to overcome the hold that the subject’s environment had on him.
      Finally, that officer reported that appellant began using heroin in 1970, when he was 16, to relieve his anxieties concerning his environment and his relations with other people.

      . No. 71-1352, at 16 (D.C.Oir. June 6, 1973).

      . The results of the communications were subsequently included in an affidavit filed with the trial court. They included numerical breakdowns of the population and capacity of a number of youth facilities, and showed that some'were hardly more than half full.

      . On the remand the only additional information provided was a letter from the probation office indicating that Lorton was still overcrowded and that the Bureau of Prisons felt that appellant “should remain in the District of Columbia.” The letter concluded:
      In the absence of available alternatives, I see nothing to be gained at this point by Your Honor’s reconsidering your sentence.

      . No. 71-1352, at 21 (D.C.Cir. June 6, 1973).

      . On May 5, 1973, we remanded this case “to afford the District Court an opportunity to reconsider its sentence, if it is so disposed,” noting the overcrowded condition of the Lorton YCA facility and the fact that “[w]e are now advised by Government counsel that an expanded youth facility serving the District of Columbia will shortly become available, and that this information was not before the District Court at the time sentence was imposed.” On remand the sentencing judge refused to amend the sentence, stating, inter alia, “that additional facilities at the Lorton Youth Center will not be available for several months at the earliest.”

      . See note 18 in Judge Bazelon’s opinion. At the time of the sentence and the remand in this case, District of Columbia Code YCA offenders, because of overcrowded conditions at the Lorton YCA facility, were being sent to federal YCA facilities in other areas pursuant to an agreement between the Federal Bureau of Prisons and the District Court.

      . This indicates appellant must steal $21,900 a year to feed his habit. If this amount were stolen in cash it would be a sizeable sum, but if it were obtained from stolen property disposed of at the ordinary prices which stolen property brings, the amount of property stolen could easily i-eaeh $100,000 a year.

      . The plain import of this letter is that appellant was not eligible for any “youth institution,” and should thus be kept in the District of Columbia.

      . MEMORANDUM ON REMAND
      The record in this case was remanded to the trial judge to afford an opportunity to reconsider the sentence, if it is so disposed.
      Attention is directed to the memorandum of the Chief Probation Officer (copy attached), dated May 15, 1972, indicating that additional facilities at the Lorton Youth Center will not be available for several months at the earliest. At the time of sentence the Court quoted an excerpt from the recommendation of the Board of Parole as follows:
      “ . . . Mr. Riley has a pattern of aggressive robbery type of offenses, with weapons involved. He has been on probation and involved in juvenile correetional programs but such measures have not reversed the trend. He is well versed in current asocial activity and appears quite sophisticated in spite of age.”
      After carefully considering the defendant’s background, the serious nature of the offenses involved, and the record, the Court concluded that the defendant would not benefit from a sentence under the Youth Corrections Act. Having further reviewed the entire file, the trial Court is not disposed to amend the sentence.
      /s/ John Lewis Smith, Jr. United States District Judge
      May 17, 1972
      (Emphasis added.)

      . See p. 1129 n. 12 of the majority opinion.

      . Note 15 in Judge Bazelon’s opinion refers to the recommendation for an indeterminate adult sentence under 18 U.S.C. § 4208(a)(2), but completely omits here or elsewhere the finding of the Presentence Report that “Appellant . would not benefit from the Youth Corrections Act program because, etc. . . . ” (Emphasis added.)

      . Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) noted that the extent of punishment was for the sentencing court “with whose judgment there is no warrant for interference on our part.” And in United States v. Bryant, 143 U.S.App.D.C. 53, 55, 442 F.2d 775, 777 (1971), we said, “[i]f the sentence is within the latitude granted by statute and is imposed in a procedurally correct manner, the court has a well-nigh unreviewable discretion.” Our comment in Wilson v. United States, 118 U.S.App.D.C. 319, 321, 335 F.2d 982, 984 (1963) was to the same effect: “We recognize, of course, that the imposition of sentence is in the sound discretion of the District Judge.”

      . 18 U.S.O. § 5010(b) and (c) provide:
      (b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017(c) of this chapter; or
      (c) If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in section 5017(d) of this chapter.

      . 18 U.S.O. § 5017(c) and (d) provide:
      (c) A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.
      (d) A youth offender committed under secion 5010(c) of this chapter shall be released conditionally under supervision not later than two years before the expiration of the term imposed by the court. He may be discharged unconditionally at the expiration of not less than one year from the date of his conditional release. He shall be discharged unconditionally on or before the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction.

      . 2 U.S.Code Cong. & Ad.News 3983, 81st Cong., 2d Sess. (1950) (Senate and House Reports are substantially identical).

      . To the extent that our decision in United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (en banc, 1973), and companion cases, are occasionally applied to compel a YCA sentence, they contradict the YCA statute which is completely discretionary. And it is a completely absurd construction of a statute to compel the mixture of hardened unrehabilitable criminals with unsophisticated youth offenders who have every promise of becoming useful citizens, just because they are within the same 18 to 22 age bracket. Eventually Coefield and the unsound sentencing practices it compels will have to give way to a decision recognizing the sounder sentencing practice that Congress intended or to a new statute more precisely compelling such result. We cannot continue to herd hardened criminals with records such as appellant’s with eligible youth offenders. To do so harms both the eligible offender and the ineligible offender because neither gets the treatment and supervision he requires.

      . U.S.Code Cong. & Ad.News, supra note 9, at 3987.

      . The population at the D.C. Youth Center increased from 1,331 in fiscal year 1969 to 2,898 in fiscal year 1972, an increase of 117% in three years. Summary Report, District of Columbia Department of Corrections 1967-1972 at 51.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Lawrence I. GREEN, Petitioner, v. UNITED STATES of America, Respondent. Gary A. HOPKINS, Petitioner, v. UNITED STATES of America, Respondent.
    Nos. 73-8079, 73-8095.
    United States Court of Appeals, District of Columbia Circuit.
    July 20, 1973.
    Lawrence I. Green, pro se.
    Gary A. Hopkins, pro se.
    Before LEVENTHAL and ROBINSON, Circuit Judges.
   PER CURIAM:

Petitioners Green and Hopkins are before us seeking leave to proceed on appeal in forma pauperis. Each petitioner contends that the District Court erred in denying his pro se motion for modification or reduction of his sentence or other sentencing relief which would allow him to participate immediately in some variety of work release program. Although naturally somewhat lacking in clarity and precision, the pro se petitions filed in the District Court and in this court assert a “constitutional right to be rehabilitated” derived, not from the Constitution, but from 18 U.S.C. § 4082. Each petitioner contends that he is presently ineligible for work release because of his lengthy sentence, and that the District Court’s refusal to reduce his sentence and order work release constitutes a denial of his “constitutional” rights. Although we deem petitioners’ contentions frivolous, we take this opportunity to comment briefly since we have recently received many similar pro se petitions asserting a constitutional right to be rehabilitated pursuant to 18 U.S.C. § 4082.

A motion for the reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure is addressed to the sound discretion of the District Court. Rehabilitation is certainly a salient goal of the criminal justice system, but a recently convicted offender is not always the best judge of the optimum path to rehabilitation.

The work release legislation permits the Attorney General to authorize a prisoner “as to whom there is reasonable cause to believe he will honor his trust . . . to work at paid employment or participate in a training program in the community on a voluntary basis while continuing as a prisoner of the institution or facility to which he is committed . . . ,” Both the literal terms and legislative history of Section 4082(e) make it clear that the decision as to whether or not to authorize work release is one dependent on an exercise of discretion by the Attorney General. Although Congress recognized in amending Section 4082 in 1965 that work release may, in some instances, be a valuable rehabilitative tool, it did not establish an absolute legal right to immediate work release such as is urged by petitioners.

Since we find petitioners’ contentions that the District Court erred in denying their motions frivolous, the motions before us for leave to proceed on appeal in forma pauperis are denied.

So ordered.

      . Green was convicted by jury of manslaughter, and sentenced on April 2, 1971, to a term of three to nine years. Hopkins pled guilty to one count of three separate indictments charging three separate armed robberies. In Grim. No. 911-72, he pled guilty to assault with intent to kill while armed; in Crim. No. 920-72 to robbery; and in Grim. No. 924-72 to attempted robbery. On November 16, 1972, Hopkins was sentenced to an effective term of five to fifteen years on these three counts.

      . Green’s motion in the District Court was styled a “Motion for Modification or a Reduction of Sentence. Pursuant to Rule 35, Federal Rules of Criminal Procedure, and Title 18, Section 4082, U.S.C.” Hopkins’ motion was styled a “Motion for Reduction in Sentence (Work Release Rehabilitation Program) Under Title 18, Section 4082, U.S.C.”

      . See, e. g., United States v. Krueger, 454 F.2d 1154, 1155 (9th Cir. 1972) ; United States v. Williams, 446 F.2d 486, 488 (5th Cir. 1971) ; United States v. Jones, 444 F.2d 89, 90 (2d Cir. 1971) ; United States v. Brown, 428 F.2d 1191, 1193 (7th Cir.), cert. denied, 400 U.S. 941, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970).

      . See Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

      . 18 U.S.C. § 4082(c) provides in its entirety as follows:
      The Attorney General may extend the limits of the place of confinement of a prisoner as to whom there is reasonable cause to believe he will honor his trust, by authorizing him, under prescribed conditions, to—
      (1) visit a specifically designated place or places for a period not to exceed thirty days and return to the same or another institution or facility. An ■extension of limits may be granted only to permit a visit to a dying relative, attendance at the funeral of a relative, the obtaining of medical services not otherwise available, the contacting of prospective employers, or for any other compelling reason consistent with the public interest; or
      (2) work at paid employment or participate in a training program in the community on a voluntary basis while continuing as a prisoner of the institution or facility to which he is committed, provided that—
      (i) representative of local union central bodies or similar labor union organizations are consulted ;
      (ii) such paid employment will not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services; and
      (iii) the rates of pay and other conditions of employment will not be less than those paid or provided for work of similar nature in the locality in which the work is to be performed.
      A prisoner authorized to work at paid employment in the community under this subsection may be required to pay, and the Attorney General is authorized to collect, such costs incident to the prisoner’s confinement as the Attorney General deems appropriate and reasonable. Collections shall be deposited in the Treasury of the United States as miscellaneous receipts.

      . S.Rep. No. 613, 89th Cong., 1st Sess. 5; II.R.Rep. No. 694, 89th Cong., 1st Sess. 3.

      . Id.

      . Petitioner Green, in his in forma pauperis motion before this court, places primary reliance on 18 U.S.C. § 4082, but also cites 24 D.C.Code § 463. Apparently Green intends to cite 24 D.C. Code § 461, which establishes a work release program for the benefit of certain minor offenders. In addition to allowing the sentencing court to authorize work release for persons convicted of minor offenses, § 461 provides that “[s]uch a work release privilege may also be granted, in the discretion of the sentencing court, whenever there exist such special circumstances as .merit the granting of the privilege.” (emphasis supplied). Even assuming that Green intended to invoke this provision, we certainly could not hold that the District Court abused its discretion in finding that there were no “special circumstances” which merited the granting of the privilege in this case.


author: PER CURIAM.

text:
    FARAH MANUFACTURING COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD and Amalgamated Clothing Workers of America, El Paso District Joint Board, AFL-CIO, Intervenor.
    No. 73-1184.
    United States Court of Appeals, Eighth Circuit.
    Aug. 1, 1973.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Acting Asst. Gen. Counsel, NLRB, Washington, D. C., for Labor Bd.
    Nelson, Harding, Marchetti, Leonard & Tate, Lincoln, Neb., and Kenneth R. Carr, El Paso, Tex., for Farah Manufacturing Co.
    Arthur M. Goldberg and Joel Ronald Ax, New York City, for intervenor.
    Before VOGEL and BRIGHT, Circuit Judges.
   PER CURIAM.

Petitioner, Farah Manufacturing Company, Inc. (Farah), seeks review of the order of the National Labor Relations Board, entered on March 23, 1973, in Case Nos. 28-CA-2036, 2054, 2089, 2097, 2109, 2126, 2137, 2152, and 2210 (202 NLRB No. 99). In this proceeding we consider intervenor’s (Amalgamated Clothing Workers of America) motions for dismissal or change of venue.

The petition for review was filed March 26, 1973. On April 9, 1973, in response to an application, we permitted Amalgamated Clothing Workers of America, the charging party, to intervene. The Board, on May 4, 1973, filed a cross-application for enforcement of its order. The intervenor thereafter moved to dismiss Farah’s petition for want of jurisdiction since the petition for review failed to aver and establish that Farah resided or transacted business within the jurisdiction of the Eighth Circuit (see 29 U.S.C. § 160(f)). In the alternative, intervenor moved that we transfer these proceedings to the Fifth Circuit pursuant to our discretionary power or under the authority of 28 U.S.C. § 2112(a). In addition, the National Labor Relations Board asked leave to withdraw its cross-application for enforcement since neither the petition for review nor the certified record indicated that Farah resides or transacts business within the geographic boundaries of this circuit.

Farah has resisted each of the motions on several grounds, and in response, has filed an affidavit of one of its officers showing that it has been doing some business within this judicial circuit. The affidavit and its attachments show that Farah has maintained a small office (270 square feet) in a commercial building in Fargo, North Dakota, since about August 1, 1972. This office serves as headquarters for its sales agent who solicits customer orders in North Dakota and Minnesota. The affidavit and attachments also show that Farah’s principal place of business is in El Paso, Texas, and that its gross annual receipts (apparently for 1972) from business operations transacted in whole or in part in North Dakota amounted to $1,176,-082. Farah’s total gross receipts, for the same period of time nationwide, were $156,764,474.

We note from the underlying record that Farah operates three manufacturing plants in El Paso and other plants in Texas and New Mexico; that its employees commenced union organizational activities in September of 1969; and that these organizational activities led to unfair labor practice charges and findings against Farah in a prior case. Farah Manufacuring Co., 187 N.L.R.B. 601 (1970), enforced, 450 F.2d 942 (5th Cir. 1971).

The intervenor cites El Paso Joint Board, Amalgamated Clothing Workers v. Farah Manufacturing Co., Inc., 465 F.2d 1402 (5th Cir. 1972), as an allied case growing out of the efforts of the union to organize Farah’s production employees for collective bargaining. We are also cited to other cases pending in the Fifth Circuit growing out of the same organizing campaign.

We have carefully examined the briefs submitted by all parties. We agree with the position of Farah, concurred in by the Board, that the evidence submitted by Farah showing that it transacts business within this judicial circuit provides a sufficient basis for this court to exercise its jurisdiction upon the petition for review and cross-application for enforcement of the Board’s order. Section 10(f) of the National Labor Relations Act (29 U.S.C. § 160(f)) provides that an aggrieved person may obtain review of the Board’s order:

* * * in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia * * *. [Emphasis added.]

While the scope of the phrase “transacts business” has received little judicial attention in reported labor decisions, the Board has taken a liberal view concerning the activity necessary to transact business. Thus, in Olin Industries, Inc. v. N. L. R. B., 191 F.2d 613, 614, n. 1 (5th Cir. 1951), the Board conceded that the petitioner had standing to seek review of a Board order in the Fifth Circuit because it maintained a warehouse in Texas, a state within that judicial circuit albeit the unfair labor practices occurred at the petitioner’s Connecticut plant, within the jurisdiction of the Second Circuit. See also Winn-Dixie Stores, Inc. v. N. L. R. B., 448 F.2d 8, 10 (4th Cir. 1971) and Filler Products, Inc. v. N. L. R. B., 376 F.2d 369, 372 (4th Cir. 1967). Cf. New Alaska Development Corp. v. N. L. R. B., 441 F.2d 491, 492 n. 3 (7th Cir. 1971).

A determination that Farah might properly seek review in this circuit does not end the matter, for we possess the inherent power based on sound principles of judicial administration to transfer this case to another circuit court. See Panhandle Eastern Pipe Line Co. v. Federal Power Comm’n, 343 F.2d 905 (8th Cir. 1965); Pacific Gas and Electric Company v. Federal Power Comm’n, 106 U.S.App.D.C. 281, 272 F.2d 510 (D.C.Cir. 1958). In addition, statutory authority for making such a transfer is provided by 28 U.S.C. § 2112(a) which, after specifying the appropriate court for review of agency orders when review is sought in more than one court, provides that “such [appropriate] court may thereafter transfer all the proceedings with respect to such [administrative] order to any other court of appeals.”

We believe this case properly belongs in the Fifth Circuit. That court has already passed on some controversies between and among the contending parties and is familiar with the background of this ease. The disposition of this case may serve as precedent for the disposition of other controversies which remain in or may arise later in the Fifth Circuit. Farah’s basis in asking this court to act rests on some business operations conducted within the geographical boundaries of this circuit but these are completely unrelated to the controversies arising between labor and management at manufacturing plants located in El Paso, Texas. Farah’s filing of the petition for review in this court, although not improper, represents “forum shopping,” a practice to be discouraged.

Accordingly, we order that the venue of this action be changed to the Fifth Circuit. The motion for such change by the intervenor is granted. The Board’s motion for leave to withdraw its cross-application for enforcement and to dismiss the petition for review for lack of jurisdiction is denied.

It is so ordered.


author: DYER, Circuit Judge: COLEMAN, Circuit Judge PER CURIAM: COLEMAN, Circuit Judge

text:
    Tommy McNEAL, Petitioner-Appellant, v. William HOLLOWELL, Superintendent, Mississippi State Penitentiary, Respondent-Appellee.
    No. 73-1214.
    United States Court of Appeals, Fifth Circuit.
    July 13, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 23, 1973.

      David M. Lipman, Oxford, Miss., Johnnie E. Walls, Jr., Greenwood, Miss., for petitioner-appellant.
    A. F. Summer, Atty. Gen., Edwin A. Snyder, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   DYER, Circuit Judge:

This habeas corpus petition presents the single important question of whether McNeal’s trial and conviction in a Mississippi state court was barred by an earlier jury trial on the same charge which was terminated, prior to a verdict and over McNeal’s objection, by the prosecutor’s successful request for a nolle prosequi. We conclude that the second trial violated the Fifth and Fourteenth Amendments’ proscription against placing a person in jeopardy twice for the same offense. Accordingly we reverse.

When considering cases raising similar double jeopardy issues, the Supreme Court has consistently stated that it would be inappropriate to create a body of rigid and mechanical rules by which to judge the merits of the constitutional claim; instead the problem must be evaluated in terms of all the facts and circumstances of each individual case. Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425; United States v. Perez, 1824, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165. Consequently, we set out in detail the circumstances that gave rise to McNeal’s petition.

I.

In March 1968, the manager of a Clarksdale, Mississippi, gas station was killed in a robbery attempt. Several days later, Louis Banks was apprehended as a suspect and he gave a complete account of what transpired at the gas station. Because of his cooperation and because he was believed to be a “lesser actor” in the murder, he was allowed to make a reduced bond, but, on July 11, 1968, he was indicted, along with Me-Neal and Roosevelt Ford, for the murder of the station attendant. The trials of the three defendants were severed and MeNeal was tried first, initially on July 25, 1968.

In preparing for McNeal’s trial, the prosecutor realized that he had two key witnesses. The first, David Luster, was not totally cooperative or consistent, but he had stated on several occasions that MeNeal told him that he was the one who had shot the station attendant. The second key witness was Banks, whose retained counsel was Joseph Kellum. In his discussions with the prosecutor prior to and even early in the trial, Kellum indicated that his client would not invoke his Fifth Amendment privilege against self-incrimination.

MeNeal was brought to trial on July 25, 1968, and a jury was impaneled and sworn. On the second day of trial, after thirteen witnesses had testified for the State, the prosecutor called Luster to the stand, planning to call Banks next as the State’s last witness.

Luster’s testimony on the stand was not what the prosecutor either wanted or expected. Instead of testifying that he heard Tommy MeNeal, the defendant, say that he had killed the station attendant, Luster stated that Tommy MeNeal, the defendant’s uncle had told him that Tommy MeNeal, the defendant, had said that he had killed the attendant. Following this surprise, the prosecutor made an extensive attempt to get Luster to recant this testimony, but Luster refused to change his story. With Tommy MeNeal, the uncle, unavailable as a witness, the status of Banks as an already crucial witness was heightened.

Banks was then called to the stand as a witness. At this time McNeal’s counsel, Harvey Ross, apparently obtained permission from the court to speak to Banks and his attorney, Kellum, in an anteroom off of the courtroom. Following a vociferous, but unreported exchange Kellum returned to the courtroom and announced that he would not allow his client, Banks, to testify. Banks was then sworn and he stated that he would not testify, claiming his Fifth Amendment privilege.

With both of his key witnesses unable or unwilling to substantiate the State’s case, the prosecutor immediately requested that the case against McNeal be “nolle prosequied.” McNeal’s counsel objected, requesting a conclusion of the trial on the merits or, if the State had no further proof, a directed verdict of acquittal. The court thereupon granted the prosecutor’s motion and discharged the jury, stating that the prosecutor “has found out after getting into it that he is unable to make out his case.”

A few days after the nolle prosequi in the McNeal case, Banks was placed on trial for murder. According to the same prosecutor’s later testimony, he intentionally offered little evidence in this case because he knew that the court would direct a verdict of not guilty, which would have the effect of granting Banks immunity. McNeal was quickly re-indicted and came to trial again in February 1969 at the next term of court. This trial culminated in his conviction, which was affirmed on appeal. McNeal subsequently exhausted his State post-conviction remedies and filed his federal habeas corpus petition. Following a full evidentiary hearing, the district court concluded that any necessity for a nolle prosequi in the first trial was precipitated by McNeaPs counsel’s last-minute conference with Banks and his attorney. Consequently, the habeas petition was denied. McNeal v. Collier, D.C., 353 F.Supp. 485.

II.

McNeal’s argument in condensed form is that there was no improper conduct by his counsel at the first trial and that the state trial judge abused its discretion by granting a nolle prosequi long after the jury had been impaneled and substantial evidence had been offered. The State responds that no judicial or prosecutorial misconduct has been shown to have occurred and that the district court’s finding that a manifest necessity for the nolle prosequi existed because Banks’ Fifth Amendment claim was solicited by McNeal’s counsel is not clearly erroneous. We thus face the seemingly uncomplicated task of applying the law on double jeopardy to the facts before us.

III.

The law regarding double jeopardy has recently been carefully reviewed and explained by the Supreme Court in Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425, and by this Court in Smith v. Mississippi, 5 Cir. 1973, 478 F.2d 88. Therefore, with reference to these two cases we refrain from treating in extenso all of the principles and policies inherent in the theory of double jeopardy and instead direct our attention to the particular factors which have a bearing on the resolution of the issue before us.

The Fifth Amendment’s proscription against placing a person in jeopardy twice for the same offense has been applied to the states through the Due Process Clause of the Fourteenth Amendment and this application must be made retroactively. Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; see Price v. Georgia, 1970, 398 U.S. 323, 331 n. 9, 90 S.Ct. 1757, 26 L.Ed.2d 300; Ashe v. Swenson, 1970, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 25 L.Ed.2d 469; Waller v. Florida, 1970, 397 U.S. 387, 391 n. 2, 90 S.Ct. 1184, 25 L.Ed.2d 435; North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Galloway v. Beto, 5 Cir. 1970, 421 F.2d 284, cert. denied, 400 U. S. 912, 91 S.Ct. 137, 27 L.Ed.2d 151.

Because “[t]he prohibition is not against being twice punished, but against being twice put in jeopardy,” United States v. Ball, 1896, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300, it is necessary to determine when jeopardy attaches in a jury trial. In Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, the Supreme Court recognized that this occurs when the jury is impaneled and sworn, thus vesting the defendant with the valued right to have his trial completed before that tribunal and that jury. See Wade v. Hunter, 1949, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974.

This “valued right” is not absolute, however, and the determination that jeopardy has attached is the first step on the road to a decision on the double jeopardy question, and not the last. When, as in this ease, jeopardy has attached, and only then, the inquiry shifts to the trial judge who, in his sound discretion, must consider all the circumstances to determine whether there is a manifest necessity to dismiss the jury without a verdict or whether the ends of public justice would otherwise be defeated. United States v. Perez, 1824, 22 U.S. 579, 580, 9 Wheat. 579, 580, 6 L.Ed. 165.

The' problem of moving from the general formulation in Perez to the facts of an individual case is complicated by the absence of any rigid rules, which makes categorization of earlier cases extremely difficult. See Wade, supra 336 U.S. at 691, 69 S.Ct. 834. The Supreme Court in Somerville, while continuing to reject a rigid classification, did distill a general approach from the previously decided cases and recognized at least two lines of precedent.

The first generalization is that a trial judge correctly declares a mistrial when, in his discretion, “an impartial verdict cannot be reached, or a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.” Somerville, supra 93 S.Ct. at 1070, 35 L.Ed.2d at 431. The fatally defective indictment in Somerville fell into this class, as would the potentially prejudiced juror in Smith,

Our case simply does not even remotely resemble the cases relied on in Somerville, or those which have since followed it. The first state trial below contained no hint of prejudice that would have impeded the attainment of an impartial jury verdict; similarly no procedural error has been called to our attention that would warrant the jury’s dismissal so as to implement a reasonable state policy and serve the ends of public justice.

The second line of precedent recognized in Somerville, however, is potentially more useful to us. The Supreme Court there noted that the declaration of a mistrial based on “a rule or a defective procedure that [lends] itself to prosecutorial manipulation” would be an entirely different case. 93 S.Ct. at 1070, 35 L.Ed.2d at 431. Presumably such a case would require the invocation of the Fifth Amendment’s bar to reprosecution.

On its face, the granting of the motion for a nolle prosequi below fits squarely within this principle. The primary example given for this general approach was Downum, supra, which the Somerville Court considered to be a case “where the mistrial entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case.” 93 S.Ct. at 1073, 35 L.Ed. at 434. In McNeal’s case, the nolle prosequi resulted in a delay in trial of over six months and was ostensibly granted by the trial judge because the prosecutor “has found out after getting into it that he is unable to make out his case.” See footnote 3, supra. Since a nolle prosequi in Mississippi does not, and obviously did not, preclude reindictment and retrial, the practice followed in the state trial court would seem to create a situation with a tantalizing potential for prosecutorial misconduct.

The State responds to this argument by contending that the language used by the trial judge in discharging the jury is not dispositive of the reasons behind the discharge, that there was a manifest necessity for the nolle prosequi, and that the necessity arose out of the conduct of McNeal’s counsel. Its argument is based on the general rule that a defendant who successfully moves for a mistrial, knowing that his actions will result in a trial to another jury, cannot invoke the bar of double jeopardy at the second trial. United States v. Beasley, 5 Cir. 1973, 479 F.2d 1124; United States v. Iacovetti, 5 Cir. 1972, 466 F.2d 1147, 1152, cert. denied, 1973, 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270. From this rule flows the State’s main premise, that a defendant who actively engages in a course of conduct calculated to necessitate the granting of a mistrial, but who does not actually request a mistrial, is similarly barred from relying on a double jeopardy defense at a second trial. See United States v. Pridgeon, 5 Cir. 1972, 462 F.2d 1094; United States v. Walden, 4 Cir. 1971, 448 F.2d 925, 929; Loux v. United States, 9 Cir. 1968, 389 F.2d 911, 921, cert. denied, 393 U.S. 867, 869, 89 S.Ct. 151, 21 L.Ed.2d 135. See also United States v. Jorn, 1971, 400 U. S. 470, 487-488, 91 S.Ct. 547, 27 L.Ed.2d 543 (Burger, C. J., concurring).

We take no issue with either rule advanced by the State but, upon our reading of the record, we conclude that neither is applicable to the case before us. It is plain from the record that the situation which led the prosecutor to move for a nolle prosequi was caused by the confluence of three factors.

The first factor was Luster’s testimony, which, due to its hearsay nature, could not be used by the prosecutor to support the case against McNeal. There has been no hint of a causative link, however, between McNeal and his counsel on the one hand and Luster’s vacillation on the other. The prosecutor simply took a chance on a questionable witness and lost. As such, this factor is of absolutely no assistance to the State in its attempt to establish a manifest or imperious necessity for the nolle prosequi.

The second factor was the prosecutor’s reliance on the testimony of co-indictee Banks to link McNeal to the murder. Without reference to the tactics used to make Banks available to testify, see footnote 4, supra, it is clear that the prosecutor took another chance by placing Banks on the stand while he was still under an indictment for the same offense. Mississippi apparently has no general immunity statute, but, in retrospect, certain steps could have been taken that would have increased the likelihood of Banks’ testifying. Instead, the prosecutor chose to rely on an informal “understanding,” which he felt he had with Kellum, Banks’ counsel. Although this may not have been completely unreasonable under the circumstances, the continuing real possibility that Banks would invoke the Fifth Amendment’s protection cannot, without more, be “blamed” on McNeal so as to create the manifest necessity that would allow a nolle prosequi to insure that the ends of public justice were not defeated.

The final factor that influenced the situation was the actual invocation of the Fifth Amendment by Banks. The district court concluded that “the invocation of the privilege against self-incrimination was largely the result of the course pursued by petitioner’s trial counsel; a course which was a solicitation for the mistrial.” We accept the finding of fact of the district court — • that Banks’ use of the Fifth Amendment was largely the result of the actions by McNeal’s counsel — because, on the record before us, it is not clearly erroneous. Fed.R.Civ.P. 52(a); see, e. g. Corpus v. Beto, 5 Cir. 1972, 469 F.2d 953. Nevertheless, the district court’s legal conclusion — that this action is tantamount to a solicitation of a mistrial— is untenable.

The State would have us liken our case to ones which concerned an unavailable witness. It acknowledges that if the witness is unavailable through sloppy prosecutorial preparation, then there is no manifest necessity for a mistrial. See, e. g. Downum, supra; Cornero v. United States, 9 Cir. 1931, 48 F.2d 69. Conversely, because both litigants in a criminal trial are held to high levels of professional standards, see Jorn, supra at 486, 91 S.Ct. 547, the State argues that if it is the defendant who makes a witness unavailable, then any resultant mistrial should not be a bar to reprosecution. Cf. ABA Code of Professional Responsibility DR 7-109(B). The State then takes a final leap of faith by concluding that discussing the privilege against self-incrimination with a witness and his attorney and convincing this attorney to have his client plead the Fifth Amendment, makes the witness just as unavailable as if the defense counsel had secreted the witness outside of the jurisdiction of the court. We disagree.

We start from the premise that an individual may not bribe, coerce, force, or threaten a witness to claim the privilege against self-incrimination. See 18 U.S.C.A. § 1503; Cole v. United States, 9 Cir. 1964, 329 F.2d 437, cert. denied, 377 U.S. 954, 84 S.Ct. 1630, 12 L.Ed.2d 497. See also United States v. Herron, N.D.Cal.1928, 28 F.2d 122. None of these forms of conduct has been even tangentially attributed to Ross, McNeal’s counsel. Instead, in the course of preparing for the trial of his client, Ross contacted the key witness Banks and his attorney Kellum, apparently impressed on Kellum the danger of Banks’ testifying while still under indictment for the same offense, and reminded him of the protection afforded by the Fifth Amendment. This conduct was wholly different than the secretion of a witness suggested by the State and we perceive no impropriety in it.

According to the prosecutor’s later testimony, this meeting with Banks at the trial was the first opportunity Ross had had to discuss the case with him. Additionally, it is not suggested that Ross prevailed directly on Banks at this time. Rather it is agreed that at all times Banks' counsel Kellum was exercising his own discretion and that he personally made the final decision to have Banks plead the Fifth Amendment.

On these facts, Ross’ conduct was no more than the legitimate action of a defense counsel who was contacting an important witness — a co-indictee — and his counsel to discuss a matter of mutual importance to them. While we need not go so far as to say that it was Ross’ duty to do this, we have no doubt that he was entitled to do it and that to do so he need not relinquish any of his client’s rights — here the valued right to have his trial concluded before the first jury.

We conclude that no manifest necessity and no ends of public justice required the granting of the nolle prosequi in McNeal’s first trial. The prosecutor’s uncomfortable position was caused by nothing more unusual than his reliance on a vacillating witness and on one whose testimony he had not sufficiently insured would be forthcoming. Ross, acting within this authority and professional responsibility, did no more than point out what at that time was a weakness in the presentation of the State’s case. We hold that the granting of the nolle prosequi in order to allow the State an opportunity to shore up that weakness violated McNeal’s Fifth and Fourteenth Amendment rights.

In reaching this decision we are not unmindful of the strong public interest in the efficient administration of justice. This is generally protected by the trial judge who, prior to granting or denying a motion for a mistrial or nolle prosequi, should make a painstaking examination of all the facts and circumstances that underlie the request. Only after such a careful investigation can a trial judge properly exercise his discretion as recognized in Perez. Jorn, supra 400 U.S. at 487, 91 S.Ct. 547; Smith, supra. It is clear from the record that the first state trial judge made no investigation into the reasons behind the prosecutor’s request. If he had, McNeal might never have been subjected to this constitutionally impermissible second trial.

Reversed.

COLEMAN, Circuit Judge

(dissenting) :

As he invariably does, my Brother Dyer has written a perfectly constructed opinion, distinguished for its clarity. I agree with its splendid exposition of constitutional principles generally applicable to double jeopardy. The problem is that I do not agree with the majority’s application of those principles to McNeal’s case.

When James Bogan Weems went to work on March 9, 1968 there was no reason to anticipate that before the day was out he would be a corpse, made so by an armed robber, who escaped to Chicago, where he was later apprehended and extradited. Nevertheless, all persons, including killers, are entitled to certain specified protections vouchsafed by the Constitution of the United States. On post-conviction collateral attack, however, we should be certain that the Constitution requires it before we set free a convicted murderer.

We could readily rely on the able reported opinion of the United States District Judge, who held that McNeal was entitled to no relief, McNeal v. Collier, 353 F.Supp. 485 (N.D., Miss., 1972). I must, however, make some observations of my own.

McNeal’s conviction was affirmed on appeal, McNeal v. State, 231 So.2d 491 (Miss.1970). The question of double jeopardy was not raised either in the trial court or on appeal. After the State Supreme Court had affirmed the conviction, petitioner retained new counsel for the purpose of launching a collateral attack. Leave to file a petition for writ of error coram nobis was denied, § 1992.5 Mississippi Code of 1942. The federal habeas corpus proceedings followed.

Almost from the beginning it has been held that the defense of double jeopardy must be raised at the trial, else it is waived, United States v. Wilson, 32 U.S. 150, 8 L.Ed. 640 (1833). This principle has been reiterated in numerous cases. As recently as 1967, the Fifth Circuit reaffirmed it, Grogan v. United States, 5 Cir., 1967, 394 F.2d 287, cert. denied 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100. See also, Brady v. United States, 8 Cir., 1928, 24 F.2d 399, cert. denied 278 U.S. 603, 49 S.Ct. 10, 73 L.Ed. 531; McGinley v. Hudspeth, 10 Cir., 1941, 120 F.2d 523; Barker v. State of Ohio, 6 Cir., 1964, 328 F.2d 582; Haddad v. United States, 9 Cir., 1965, 349 F.2d 511, cert. denied 382 U.S. 896, 86 S.Ct. 193, 15 L.Ed.2d 153; United States v. Buonomo, 7 Cir., 1971, 441 F.2d 922, cert. denied 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81; United States v. Scott, 1972, 150 U.S.App.D.C. 323, 464 F.2d 832; Rule 12(b)(2), Fed.R.Crim.P.

The District Court held that since McNeal was not informed by his attorney or anyone else that he could not for the same offense constitutionally be twice placed in jeopardy he did not waive his right subsequently to raise the claim, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and Winters v. Cook, 5 Cir., 1972, 466 F.2d 1393 [now on submission en banc]. Hard and fast waiver rules are beginning to meet with exceptions, as witnessed by Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 and Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235.

The question now is whether McNeal, even in the absence of a waiver, is entitled to habeas corpus relief on the collaterally raised plea of double jeopardy. I would respond in the negative.

I refer to the findings of the District Court, 353 F.Supp. at 488:

“Banks’ attorney had previously assured both the sheriff and the district attorney that Banks would waive his right to invoke the privilege against self-incrimination. This assurance was made despite a pending indictment because, as the attorney later testified, after a review of the case he was convinced that the state’s evidence was not sufficient to convict, and he thought he could arrange with the prosecuting officials for a light charge or favorable treatment for his client. On the morning of trial, the district attorney held a conference with Banks, and reviewed his testimony. On the same day, his attorney again indicated that Banks would testify.
“When Banks, the final witness, was called to the stand, McNeal’s attorney asked for a recess to talk with Banks and confer with his counsel, who was present in the courtroom. The request was honored, and after a conference both attorneys returned to the courtroom to announce that Banks would not be permitted to testify. Aware that the privilege may only be invoked by those who claim its protection, the trial judge called Banks as a witness and interrogated him. On the advice of counsel, Banks refused to testify.
“During the evidentiary hearing, Banks’ attorney summarized the event which prompted his abrupt decision:
Q. Now, at what point did you change your mind not to let Banks testify?
A. When I was in the anteroom with my client and (McNeal’s attorney) ... I decided then . I told (McNeal’s attorney) that I had changed my mind and I was not going to permit him to testify, because I thought it was to his best interest not to testify. I am referring there to Banks.
Q. Was this decision prompted by anything that was said by anyone?
A. No, sir. I realized there when (McNeal’s attorney) and I were talking over the matter that I had not received a definite commitment, that I might be making a terrible mistake. ... It was my sole decision, because my client was a young black boy. .

McNeal’s attorney also recalled the episode :

A. I had several conversations with (Banks’ attorney) during the day ... I don’t remember how many. . . . During the course of my defense of Mr. McNeal, I of course, as I remember, was trying to prevail upon (Banks’ attorney) not to let him testify. . And I believe I did have one final conversation with the court’s permission immediately prior to his being called to testify.
Q. What occurred in that conversation . . . ?
A. . . . I am certain that I must have tried to prevail upon (him) not to allow (Banks) to testify. I am sure that I, myself, tried to convince (him) that it would be to his client Banks’ interest that he not testify. And my recollection is that (he) must have agreed because he didn’t allow him to testify.”

It must be emphasized that this is not a case in which the District Attorney began a trial and thereafter with no supervening event simply decided to nol pros in the hope of doing better on another day. Such a course would be indefensible, would clearly amount to jeopardy, and would warrant the most severe condemnation.

The facts here are exactly the opposite. As found by the District Court, McNeal’s attorney testified that during his representation of the defendant he had been trying to “prevail” on Banks’ attorney not to let him testify. Despite these efforts, that attorney had assured both the sheriff and the district attorney that his client would waive the right to invoke the privilege against self-incrimination. On the very day that Banks was called to the witness stand, these assurances were repeated. The defense had never placed Banks under subpoena as a witness. Yet, when Banks, with no objection from him or from his lawyer, was about to take the witness stand, defense counsel, was then allowed to take him off the stand for a conference, which included his attorney. Experienced trial lawyers will instantly recognize this, directed toward an unsubpoenaed opposing witness, as a most bizarre, if not wholly unknown, procedure. It is quite evident that defense counsel wished to make one last effort to “prevail” on Banks’ lawyer not to let him take the stand. As the majority opinion states, “a vociferous exchange” followed, but the last ditch effort worked. Banks’ counsel completely reversed the position theretofore steadfastly maintained against all efforts to the contrary. At the brink of the Bubicon, contrary to all expectation, Banks refused to testify.

Advising a man of his constitutional rights is certainly not an impermissible act. Efforts to “prevail” on him not to testify, importunities at the last minute, calling one off the witness stand who is neither one’s witness nor his client, are matters of an entirely different character, especially within the setting of this case.

Even if one lawyer is justified in cajoling another lawyer’s client to violate agreements previously given, which I greatly doubt, Banks was not “advised” to stay off the witness stand. He was importuned, persuaded, and prevailed upon to stay off. This is the face of repeated assurances of his availability. Defense counsel knew all this. I do not castigate defense counsel (now deceased) for doing what he could to save his client. I do think that his activities must objectively be judged and that under any minimal code of professional ethics assurances from one member of the Bar to another are worth at least enough to justify counsel in making the crucial decision to put a defendant to trial. To further extend the thought, when the State is deprived of its ease while unsuspectingly relying upon such assurances, there ought to be another day. I think the district attorney in this case was met with an event no less unexpected than if a juror had discussed the case with a witness, or some like event.

Of inescapable importance, this situation was deliberately precipitated solely by the defense. Banks, with no objection from him or his counsel, was in the very act of taking the stand when the defense, contrary to all customary precedent, called him off for the “vociferous exchange”. This was the last frantic struggle to head off the testimony of the one and only witness who knew the facts necessary to a conviction of an armed robbery murder. It is not enough to say that the district attorney was simply disappointed.

The inept handling of Banks’ immunity status should be none of McNeal’s concern. He was neither the beneficiary nor the victim of that phase of the case. The fundamental issue was McNeal’s guilt or innocence, not how Banks was being handled. Banks was not McNeal’s witness and McNeal’s lawyer was not Banks’ lawyer.

A death knell stratagem which causes a witness and his lawyer to welsh on assurances repeatedly given, assurances upon which the district attorney had every reason to rely up to and even after he called the case to trial, should not be allowed to abort justice.

Under the circumstances of this collateral attack, I do not believe that the Constitution requires a belated plea of prior jeopardy to produce an injustice of the most critical gravity. In the words of Perez, cited in the majority opinion, the nol pros was mandated by a “manifest necessity”, not caused by the prosecution but procured by the defense, and it was necessary to prevent the “defeat of public justice”.

With deference, I should think that this Court should firmly plant its judicial fee upon the solid ground, after a jury is sworn to try the issue, that mere prosecution-induced abandonments of the trial will not be tolerated; but, on the other hand, eleventh hour defense stratagems in violation of all prior assurances leading to the suppression of indispensably necessary evidence will inexorably meet the same fate.

I respectfully dissent.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

COLEMAN, Circuit Judge

(dissenting) :

For the reasons enumerated in the dissent to the original panel opinion, I respectfully dissent to the denial of rehearing en banc.

      . According to Kellum’s testimony at the federal habeas hearing, he took this position because he felt the State had a weak case against his client and because he hoped to get a deal of some sort from the State. He stated, however, that prior to the trial he had not obtained a definite agreement of any kind from the prosecution. The State prosecutor testified at this same hearing that “it was understood” by Kellum that Banks would take the stand as a prosecution witness; in return, Banks would not be prosecuted.

      . The transcript of McNeal’s first trial has only been partially transcribed for our use. The portion of the proceedings that includes the testimony of Luster and the appearance of Banks has been reproduced, however, and this does not show any reference to Ross’ request for a conference with Banks and Kellum at that time. It is clear nevertheless that Ross had spoken with Kellum several times during the trial about whether Banks would testify. Consequently, the district court’s conclusion, based on the testimony at Us hearing, that there was a conference just after Banks was called is not clearly erroneous.

      . The following is a complete transcript of the exchange between the court, the prosecutor, and Ross, immediately following the dismissal of the witness Banks.
      COURT: Call your next witness, please.
      MR. STONE [prosecutor] : Your
      Honor, we ask that this case against the defendant be nolle prosequied, Your Honor.
      COURT: Call your next witness.
      MR. STONE: Your Honor, we move that this case be nolle prosequied.
      MR. HARVEY T. ROSS: If the Court please, we object to that motion.
      COURT: You object to the nolle prosequi ?
      MR. ROSS : This defendant is entitled to have this case disposed of on its merits at this point. If the State has no further proof, this defendant is entitled to a directed verdict of not guilty.
      COURT: I think the State can ask for a nolle prosequi at any time. I think that the District Attorney can ask for a nolle prosequi at any time—
      I have never seen an objection before to a nolle prosequi.
      MR. ROSS : If the Court please, this is a charge of murder. The District Attorney has had six months to prepare this case.
      COURT: I am going to grant the motion for nolle prosequi. Let the jury come in.
      COURT: (To jury) Ladies and gentlemen of the jury, the District Attorney has very commendably asked for a nolle prosequi in this case; he has found out after getting into it that he is unable to make out Bis case, and he has asked that the case be nolle prosequied against this defendant, and the Court is following the recommendation of the District Attorney, and he is entering a nolle prosequi.
      * * * * *
      JURY DISMISSED — COURT ADJOURNED

      . The prosecutor’s attitude toward Banks’ trial parallels his unorthodox attitude with respect to the original indictment against Banks. At the federal habeas hearing he stated that the Banks indictment was sought not with the intent to pursue a conviction, but essentially “to ensure his presence” at McNeal’s trial. When that mute presence at McNeal’s first trial was insufficient to yield a conviction, the prosecutor extended the charade by first staging a sham trial against Banks and by then using the “immunized” Banks before the same grand jury to obtain a second indictment of McNeal and before a different jury to obtain the conviction now questioned.

      . It has not been suggested, nor do we think it could be, that the nolle prosequi in this case differed in any material respect from a mistrial, which is, the most common source of double jeopardy claims.

      . See Lovato v. New Mexico, 1916, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (reprosecution not barred when jury discharged after prosecution realized that defendant had not been re-arraigned after his demurrer to the indictment was overruled) ; Thompson v. United States; 1894, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (reprosecution not barred when mistrial declared following discovery that one member of jury was disqualified as having been a member of the grand jury that indicted the defendant).

      . In Somerville, the indictment under which the defendant was being tried did not allege the necessary elements of a crime, and this defect, which could not be remedied, could have been asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction. In Smith, after a careful investigation of the circumstances surrounding a remark made by one of the jurors, the trial judge concluded that that juror had prematurely formed an opinion about an important element of the case.

      . Without condoning the tactic of obtaining the initial indictment against Banks, once that had been accomplished, the “immunizing” trial of Banks could easily have preceded the McNeal trial. Alternatively, the prosecutor could have sought a nolle prosequi or a “remand to the files” on the Banks indictment prior to McNeal’s trial. Neither of these last steps would have totally barred a subsequent prosecution of Banks, but either would have been a more concrete demonstration of the State’s lenient attitude toward him.

      . The district court’s Memorandum of Decision states, “While the trial judge in the state court acted immediately on the prosecutor’s request for a nolle prosequi, without requiring him to explore alternative avenues, the record reflects that the trial judge was fully advised and informed of all matters necessitating the nolle prosequi.” Our review of the record convinces us that the trial judge was not so informed and any finding of fact to the contrary is clearly erroneous. See footnote 3, supra.