author: LEVENTHAL, Circuit Judge:

text:
    DELTA AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Continental Air Lines, Inc., et al., Intervenors. BRANIFF AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Continental Air Lines, Inc., et al., Intervenors. TEXAS INTERNATIONAL AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, The City of Houston et al., Intervenors. EASTERN AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Continental Air Lines, Inc., et al., Intervenors. NATIONAL AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Continental Air Lines, Inc., et al., Intervenors. AMERICAN AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, City of Houston et al., Intervenors.
    Nos. 73-1377, 73-1387, 73-1391, 73-1414, 73-1449 and 73-1498.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 5, 1973.
    Decided Oct. 23, 1973.
    As Amended on Denial of Rehearing Nov. 20, 1973.

      Robert Reed Gray, Washington, D.C., with whom James W. Callison, Atlanta, Ga., and Louis Hayner Kurrelmeyer, Washington, D.C., were on the brief, for petitioner, No. 73-1377, Delta Air Lines, Inc. Nathaniel P. Breed, Jr., Washington, D.C., also entered an appearance for petitioner, No. 73-1377, Delta Air Lines, Inc.
    Andrew T. A. MacDonald, Washington, D.C., for petitioner in No. 73-1449, National Airlines, Inc., and Intervenor in Nos. 73-1377, 73-1387, and 73-1391.
    James M. Yerner, Washington, D.C., with whom John L. Richardson and Stuart F. Pierson, Washington, D.C., were on the brief, for petitioner in No. 73-1391, Texas International Airlines.
    Roy Nerenberg, Washington, D.C., with whom Robert N. Duggan, Washington, D.C., for petitioner in No. 73-1414, Eastern Air Lines, Inc.
    B. Howell Hill, Jr., Washington, D. C., with whom Patrick F. J. Macrory and Stephen M. Sacks, Washington, D.C., were on the brief, for petitioner in No. 73-1387, Braniff Airways, Inc.
    Ky P. Ewing, Jr., Washington, D.C., with whom Alfred V. J. Prather, Washington, D.C., was on the brief, for petitioner in No. 73-1498, American Airlines, Inc.
    O. D. Ozment, Deputy Gen. Counsel, C. A.B., with whom Richard Littell, Gen. Counsel, Robert L. Toomey, Atty., C.A. B. and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief, for respondent. R. Tenney Johnson and Warren L. Sharfman, Attys., C.A.B., also entered appearances for respondent.
    Thomas D. Finney, Jr., Washington, D. C., with whom Lee M. Hydeman, Washington, D.C., was on the brief, for Intervenor, Continental Air Lines, Inc.
    Herman F. Scheurer, Jr., and John J. McLaughlin, III, Washington, D.C., were on the brief, for intervenor, El Paso Civil Interests.
    Albert F. Grisard, Washington, D. C., for intervenors, The City of Phoenix, Ariz., The Phoenix Chamber of Commerce and The Tucson (Ariz.) Airport Authority in No. 73-1377.
    Robert M. Beckman, Washington, D. C. , for intervenors, The Cities and Chambers of Commerce of Midland and Odessa, Tex.
    Cecil A. Beasley, Jr., and John C. Smuck, Washington, D. C., were on the brief, for intervenors, City of Houston, Tex., and Houston Chamber of Commerce.
    Albert F. Beitel and Roger C. Ohlrich, Washington, D.C., were on the brief, for intervenors, City of San Antonio and Greater San Antonio Chamber of Commerce, in Nos. 73-1377, 73-1387 and 73-1391.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Petitioners, six air carriers, seek review of the Civil Aeronautics Board’s decision in the Southern Tier Competitive Non-Stop Investigation (HoustomMiami base) by which the Board determined that there was a need for nonstop service in competition with National Airlines between Miami and Houston, and selected Continental Air Lines to provide such service.

I.

Petitioners raise various arguments attacking the propriety of the Board’s rulings. We have found little merit in these arguments, and accordingly do not pause to consider them in any detail. We find, for example, that the decision of the Administrative Law Judge as adopted by the Board to the effect that there is a sufficiently large market to sustain a competitive challenge to National Airline’s monopoly of the Miami-Houston route to be supported by substantial evidence. Similarly, we discern no procedural defect nor deviation from prior decisional norms in the Board’s selection of Continental. That selection was made primarily on the grounds that Continental, the only applicant that proposed substantial fare reductions, a feature found attractive by the Board, offered a more attractive pattern of Houston-Miami nonstop frequencies than any of the other applicants, in that it proposed more (4) and better spaced round trips per day. The Board noted that Continental’s ability to offer these advantages in the Houston-Miami market was ascribable in good measure to its volume of traffic coming into Houston from points west— e. g., Phoenix, Albuquerque, San Antonio and El Paso. The Board also took into account that Continental offered the extra dividend of more beyond area benefits than those offered by any of the other applicants, in providing new one-carrier service to Miami (via the Houston stop) from Phoenix, Albuquerque and El Paso, and competition for such one-carrier service in the case of San Antonio.

Finally, the Board found that any disadvantages to the Continental application were minimal and easily limited. Without going into detail on these matters, we hold that the Board’s findings were supported by substantial evidence, and that there has been no substantial showing of unexplained departure from standard decisional doctrine or discriminatory and divergent treatment of the various applicants.

II.

We turn to the challenge presented by Delta Air Lines in reliance on its claim under the Ashbacker doctrine.

With Delta challenging Continental, their positions stand reversed from those occupied when, in 1971, Continental secured a ruling from this court setting aside the Board’s 1969 decision concluding that the public convenience and necessity required competitive nonstop service in the Houston-Miami market and awarding the route to Delta. Continental Air Lines, Inc. v. Cab, 143 U.S.App.D.C. 330, 443 F.2d 745 (1971).

Delta’s Ashbacker argument derives from the fact that Continental will be able to combine, or “tack,” its new Miami-Houston award with its existing Houston-west route system, so as to operate through flights (via at least one intermediate stop at Houston) between Miami and Albuquerque, El Paso, Phoenix, or San Antonio. According to Delta, Continental’s entry into these markets will preclude Delta from receiving awards which it desires for new authority involving the Albuquerque, El Paso, Phoenix, San Antonio markets.

Delta insists that its complaint requires review of the background of CAB’s treatment of airline service in the southern portion of the United States. This could go all the way back to the days when single plane service between California and Florida was achieved only by “interchanged” flights along the routes of several carriers. For present purposes, we can begin our historical approach with the investigation begun by the CAB in 1961 of service then being provided to more than 22 cities lying in and between Florida and California. Southern Trans-Continental Service Case, 33 CAB 701 (1961). The Board’s awards of transcontinental route to Delta (Atlanta to Los Angeles/San Francisco) and to National Airlines (Miami to Los Angeles) contemplated full freedom for intermediate stops and protection from competition on these routes. By 1967, the Board concluded that changed conditions called for competition on the established routes, toward the objective of better service between the principal city-pairs in the South. Instead of another general area-wide study the Board decided to focus on service in 18 primary markets.

“To keep the investigation within manageable bounds” the Board decided to limit the scope of the case to those designated markets “rather than institute an area type proceeding.” Order E-24847 (March 30, 1967). To further this aim, it imposed a pre-trial restriction under which any new award would be in the form of a separate segment instead of an addition to an existing segment. {Id. at 3.)

Delta and several other carriers objected to the scope of the case as structured by the Board and sought to expand it into a much broader proceeding. Delta, in particular, requested, inter alia, the consolidation of applications for (1) a new route from San Francisco and Los Angeles to Miami via numerous intermediate points, including Phoenix, Albuquerque, El Paso, Dallas, Huntsville, Atlanta, and Tampa, and (2) a second new segment between the same west coast points and Miami via a somewhat different set of intermediate cites, including Phoenix, El Paso, Albuquerque, Dallas, San Antonio, Houston, New Orleans and Tampa.

By Order E-25720 (Sept. 21, 1967), the Board-rejected all attempts to broaden Southern Tier. It found that any such expansion “would start a chain reaction” transforming the proceeding into a massive area investigation encompassing a review of the needs of hundreds of markets in the southern tier states. (Id. at 2, S.J.A. 11). The Board therefore refused to consolidate Delta’s applications except to the extent they conformed to the existing scope of the case. It also rejected Delta’s related claim that, under Ashbacker, a refusal to consolidate its applications would require the Board to impose single-plane restrictions on the operations of other applicants.

If these contentions were true there would be no geographical limit to a proceeding. We do not find these or the extensive pretrial restrictions proposed by Delta to be necessary or desirable for imposition prior to hearing. Neither can we enlarge the proceeding’s scope because certain carriers may have more beyond-area traffic advantages than others with respect to some segments to be considered. Differing route patterns afford carriers varying advantages in the service they can offer in any proceeding and it would be impractical to attempt to fashion one in which all were equal. (Order E-25720, p. 3 (S.J.A. 12).)

However, the Board noted that the parties remained free to urge the need for moré stringent restrictions during the hearing and expressly invited them to submit evidence to prove mutual exclusivity. {Ibid.)

Delta (along with National) then moved for judicial review of the Board’s instituting orders. It argued that the Board had violated Ashbacker by including the issues of transcontinental authority on a nonstop basis or via one-stop at certain southern tier cities (New Orleans, Houston, Dallas), while excluding applications for one-stop transcontinental routes via other southern tier points (including Phoenix, Albuquerque, San Antonio and Huntsville).

In National Airlines v. CAB, 129 U.S.App.D.C. 180, 392 F.2d 504 (1968), this court dismissed Delta’s petition, finding that the Board was not required as a matter of law to consolidate the carrier’s excluded applications. We took cognizance of the Board’s standard practice of permitting parties to make a factual showing of economic mutual exclusivity between such excluded applications and the route issues within a proceeding.

Our 1968 National Airlines decision is of significance because in a context almost identical to that presented here this court there made clear that the Ashbacker rule is basically a rule of fairness in comparative consideration, that it must be applied with common sense and in a practical fashion, that it cannot be applied in the same way to complex air route questions as to telecommunications proceedings, and that Ashbacker cannot be applied so as to impair or eradicate the considerable measure of discretion that the Board must retain in defining the scope of air route cases.

It bears reiteration that the Board is not obliged to structure its proceedings so as to equalize the beyond market capabilities of all applicants to a route case. As this court observed in National Airlines v. CAB:

Pre-existing route intricacies render it almost impossible for the Board to tailor its proceedings so as to equalize the advantages, and disadvantages, with which each applicant enters a comparative proceeding. The maturing and sophisticated route structure and development preclude a simplistic vindication of Ashbacker claims.

129 U.S.App.D.C. at 184, 392 F.2d at 508.

The rejection in the National Airlines ease of any simplistic presentation of Ashbacker claims has full vitality for that aspect of the opinion that upheld the Board’s approach in refusing to transform Southern Tier into a massive area investigation. This court said:

Petitioners claim that the exclusion of San Antonio, Tucson and El Paso from any of the scheduled proceedings deprives them of Ashbacker rights because petitioners have applied for transcontinental routes with intermediate stops at these excluded cities. American Airlines, for example, presently serves these excluded cities on routes extending from Houston and Dallas to the West Coast. By acquiring Miami-Houston and Dallas authority in Southern Tier, American would have a transcontinental route that would, say petitioners, economically exclude the applications petitioners have filed for similar authority.
We think this situation is analogous to that in Eastern Airlines, Inc. v. Civil Aeronautics Board [100 U.S.App.D.C. 184, 243 F.2d 607]. There Northwest applied for Detroit-Miami rights which Eastern already had, and the Board scheduled this service for investigation. Eastern sought expansion of this hearing to include its application for Detroit-West Coast rights already held by Northwest. Eastern contended that this was required by Ashbacker since a grant to Northwest would de facto give it West Coast-Detroit-Miami rights, and that if Eastern were not then given an opportunity to attain the same transcontinental route by completing its missing segment, it could not as an economic matter justify a second carrier on that route. We held that Eastern could not, in the name of Ashbacker, extend a geographically limited investigation “into a massive consideration of the whole of American air transportation.” (Footnotes omitted.)

129 U.S.App.D.C. at 186, 392 F.2d at 510.

The thrust of Delta’s present Ashbacker claim to this court is that the CAB has denied Delta a right to a fair hearing because it has refused to hear Delta’s application for authority to serve an area, has avowedly structured the proceedings so as to avoid area considerations, and has nevertheless granted the route in issue to Continental on the basis of the service it can render to the same area. Delta says that the decision before us for review violates this principle because the Board has selected Continental because of beyond-area benefits to the “excluded points.”

It would serve no useful purpose for this decision to become entangled in all of the details of Delta’s objections, and what the Board counsel identifies as its change in the service it really proffers so far as the excluded points are concerned. It suffices to say that the Board decision does not rest in dominant degree upon the beyond-area benefits to the “excluded points.” That is to say, this is not a case where Continental had no advantage over the competing carriers in terms of Houston-Miami service, and was awarded the route because of the beyond-area benefits. The Board was primarily focused on service between Houston and Miami and did not, fairly speaking, convert this into an area case which turned on determination of the service to and from excluded points, or any determination of the need for such service or the carrier best qualified to give such service.

It is true that the Board did give consideration to traffic generated at the excluded points when it came to measure the quantity of traffic between Houston and Miami — for the purpose of appraising the feasibility and realism in Continental’s proffer as to Houston-Miami service, and of appraising the quantity and quality of the Houston-Miami service proposed by Continental. But the focus was on the Houston-Miami segment, even though the CAB traditionally views proposals for any particular segment not with tunnel vision but rather with a peripheral vision that takes into account the support (or diversion) ascribable to nearby service.

In sum, Delta’s Ashbacker claim rests on the fallacy that Continental was selected for its ability to serve the needs of the excluded cities whereas it was acutally selected upon evaluation of the Houston-Miami market, its need for service, and the kind of service in that market proffered by Continental, including the service made possible by Continental’s backup support — four well spaced round trips daily at fare reductions, and all of the other items discussed above.

Delta was given the opportunity to make a showing of mutual exclusivity that Ashbacker contemplates. But that did not require putting its applications on an equal par with the backup service in fact available from Continental’s existing traffic. As already noted, pre-existing certificates do give an advantage to certain applicants for a new segment, but that is not inherently unfair. Nor can we open the door to an equalization approach that would encourage all kinds of defensive route applications. The Board must act realistically in terms of existing route identification and business patterns.

The four members of the Board were in agreement in denying the Ashbacker claim in Delta’s petition for reconsideration, and we are in agreement in rejecting its petition for review.

HI.

A.

Various parties claim that route restrictions should have been imposed upon Continental to protect the losing applicants against excessive diversion of traffic. They claim inconsistency between the Board’s decision not to impose restrictions (Order 73-2-89 pp. 11-12 (S.J.A. 571-72); (Order 73-5-22 p. 13 (S.J.A. 714) in order to protect competitors from excessive diversion and its qualification of the award to Continental by a two-stop requirement of any transcontinental route by the carrier along the southern tier (Order 73-2-89 p. 4 (S.J.A. 564). We discern no inconsistency. The purpose of the two-stop limitation upon Continental is to “preserve for the Board maximum decisional flexibility” in awarding a new transcontinental route, already in the hearing process, by assuring that Continental did not become a substantial participant in MiamiLos Angeles traffic. Id. In no way did the Board intimate that these restrictions were being used to protect certain of the applicants from diversion. In fact, the Board found that the award of the Miami-Houston route to Continental would involve only minimal diversion. (Order 73-2-89 pp. 11-12 (S.J.A. 571-72).

Upon reconsideration, requests for operating restrictions were pressed more forcefully. Petitioners here assert that settled practice entitles carriers to defer their arguments on route operating restrictions until the Board has made its award to one of the competing applicants. We see no valid foundation to such a claim of entitlement. Typically, all parties are aware of what routes are being sought and by whom. They can argue, possibly in the alternative, that if such routes are granted operating restrictions will be necessary to prevent undue diversion. Indeed, it would seem appropriate that the Board should have before it the argument as to amount of restriction that would be required as to any particular carrier so that it could consider whether to assume that burden in making such an award.

B.

Finally, we endeavor to put to rest two erroneous theories of proper Board procedure. American Airlines protests the failure of the Board to give reasons why it did not award the route on the basis of a “net-benefit” formula propounded by American. No such burden can be put on an agency. Reasoned decision making demands that an agency articulate the standards upon which it bases it awards. The Board did so here by expressly adopting the Administrative Law Judge’s Initial Decision, which contained an explanation of the ten carrier selection factors. (Order 73-2-89 p. 1 (S.J.A. 561); (Initial Decision of Examiner Wm. H. Dapper pp. 20-21 (S.J.A. 498-99). The agency had sufficiently indicated its general approach in terms of the factors that were taken into account. This necessarily entailed judgment on the part of the CAB in its heft of the various factors in any particular ease. It was not required — indeed, it may well have been unable — to produce a quantifying formula as the definition of its approach. It may be said, indeed, that American’s formula, oversimplified, is merely that the less service is offered, the less diversion will result. The Board, however, although required to consider diversion, was entitled to go beyond the applicant that caused the least diversion and select the carrier that proffered the most service to the public.

National Airlines asserts that it was entitled to a determination of its petition for reconsideration by a majority of the Board, and that delay until a five-man board came into being was consequently required when the Board split 2-2 on its petition for rehearing. We find no merit in this point. In Braniff Airways v. CAB, 126 U.S.App.D.C. 399, 379 F.2d 453 (1967), we found a Board duty to consider a matter upon rehearing where the application for reconsideration identified a fundamental defect in the Board’s order as originally entered. For reasons already set forth, that is not the condition that confronts us here. Where the Board’s order is without such a gross defect, its initial decision is ordinarily to be taken as its authoritative action. The Board has the legal authority to decide upon reconsideration whether to adhere to its initial conclusion or to amend or reverse it; but a party has no right to reconsideration by more than quorum of the Board. Where that quorum refuses to take action to overturn an order valid when originally entered, the administrative process is terminated.

The petitions to review are denied, and the Board’s order stands affirmed.

So ordered.

      . Orders 73-2-89 (S.J.A. 560); Order 73-5-22 (S.J.A. 702); Order 73-5-110 (S.J.A. 685).

      . Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945).

      . The 18 markets directly at issue in Southern Tier were:
      Atlanta — Dallas/Fort Worth
      • — Los Angeles/Long Beach
      —San Francisco/Oakland
      Dallas/Fort Worth' — -Los Angeles/Long Beach
      —New Orleans
      —San Francisco/Oakland
      • — Tampa/St. Petersburg/Clearwater
      Houston — Los Angeles/Long Beach
      —San Francisco/Oakland
      Miami/Fort Lauderdale — New Orleans
      —Dallas/Fort Worth
      —San Francisco/Oakland
      —Los Angeles/Long Beach
      —Houston
      —Tampa/St. Petersburg/Clearwater
      New Orleans — San Francisco/Oakland
      —Tampa/St. Petersburg/Clearwater

      . Even though Delta’s Ashbacker claim was dismissed as premature rather than conclusively rejected.


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge: LEVENTHAL, Circuit Judge: LEVENTHAL, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America v. Robert Louis AMMIDOWN, Appellant. UNITED STATES of America v. Robert L. AMMIDOWN, Appellant.
    Nos. 72-1694, 72-1695.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 14, 1972.
    Decided Nov. 16, 1973.
    Rehearing Denied May 10, 1974.

      See also D.C., 341 F.Supp. 1355.

      Albert J. Ahern, Jr., and Thomas W. Farquhar, Washington, D. C., were on the motion for appellant.
    John J. Wilson, Washington, D. C., was on the motion as amicus curiae in support of the District Court.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, and James E. Sharp, Asst. U. S. Attys., were on the motion for appellee.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

      . Rule 11 of the Federal Rules of Criminal Procedure provides as follows :
      A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

   LEVENTHAL, Circuit Judge:

In this unusual case the trial judge rejected a plea bargain struck between the prosecution and the defense on the ground that the public interest required that the defendant be tried on a greater charge. Under the facts presented, we hold that the trial judge exceeded his discretion and accordingly reverse.

I.

In a case of extraordinary notoriety, Robert L. Ammidown was charged with first degree murder and conspiracy to commit murder in the death of his wife. Ammidown admitted that a month previous he arranged to have her murdered at a parking garage of a Virginia department store. At the last minute he changed his mind, because he did not want his son, who was to accompany his mother on that day, to witness the murder. Subsequently, according to his written confession, Ammidown and an associate, Richard Anthony Lee, devised a plan whereby Lee would abduct Mrs. Ammidown and by threat to her life extort a sum of money to be used by Ammidown and Lee to make the down payment for a club on the Eastern Shore of Maryland. The plan called for Ammidown to take his wife to dinner at the Flagship Restaurant in Southwest Washington. After dinner, as they were departing from the Flagship, Lee would halt Ammidown’s ear at a specified intersection near the restaurant.

And so it was done. In due course, and at the prearranged spot, Lee jumped into Ammidown’s car and directed him to drive to the East Capitol Street Bridge, where Lee dragged Mrs. Ammidown from the car and raped her, as planned, to impress Mrs. Ammidown “with the seriousness of the threat.”

What then happened was that Lee killed Mrs. Ammidown. Ammidown did not confess to complicity in the murder.

Just prior to trial, the United States Attorney and Ammidown entered into this agreement: Ammidown would plead guilty to second degree murder, and the first degree murder charge would be dismissed. There was no agreement for the prosecutor to recommend sentence less than the maximum, life imprisonment. Ammidown, then aged 49, had no possibility of being even considered for parole for 15 years. Ammidown agreed to testify in the grand jury proceedings and impending trial of Lee, a much younger man, who was believed by the prosecution to be involved in another murder.

The trial judge, however, refused to approve the agreement and accept the lesser plea. With full understanding of the prosecutor’s concern with the importance of Ammidown’s agreement in connection with its successful prosecution of Lee, the court nonetheless decided that under Rule 11 of the Federal Rules of Criminal Procedure it had the discretion to refuse the plea when it found that the crime was so heinous and the evidence of guilt so overwhelming that the public interest would be ill-served by a judgment of second degree murder, which it referred to as a “tap on the wrist.” Appellant then pleaded not guilty to first degree and second degree murder; at trial he was convicted of first degree murder and felony murder and sentenced to two terms of life imprisonment, to run consecutively.

Appellant now asserts that the failure of the trial court to accept his proffered plea of guilty to second degree murder constituted reversible error, and asks this court to remand with instructions to enter a judgment of second degree murder. The Government has decided that it could not in good conscience oppose the appellant; consequently, the position of the trial judge has been ably presented by John J. Wilson, Esquire, who was appointed by this court as “amicus curiae for the purpose of filing a memorandum supporting the position taken by the district judge.”

II.

Rule 11 of the Federal Rules of Criminal Procedure governs pleading in criminal cases; but we would err were we to circumscribe our inquiry so narrowly. Plea bargaining telescopes into one transaction three distinct stages of the criminal proceeding: plea to one charge; dismissal of a greater one; and sentencing. The formal plea of guilty is often the manifestation of assent to a bargain whereby a charge is dismissed, normally a matter almost exclusively within the discretion of the prosecutor, in order to secure for the defendant a less severe range of sentencing alternatives, normally the exclusive province of the judge. We begin our decision with a discussion of the responsibilities of judge and prosecutor in the component stages of the process.

A.

By its terms, Rule 11 deals with the moment when the accused stands before the judge to enter his plea. Although the rule provides that a trial court “may refuse to accept a plea of guilty,” it fails to delineate the circumstance under which it may do so. The rule requires a court accepting a plea to determine whether it has been voluntarily tendered and whether there is a factual basis for the plea. Ordinarily the concern of Rule 11 is with the propriety of the waiver of the right to trial. See 1 Wright, Federal Practice and Procedure §§ 171-72 (1969). Much of the litigation surrounding guilty pleas bears on these and related questions. See, e. g., Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). One line of cases has concerned the freedom of the trial judge to prohibit the waiver of trial where the defendant has protested his innocence while proclaiming his readiness to plead. The Supreme Court has concluded that a plea tendered under these circumstances is valid where there is strong evidence of the defendant’s guilt, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Earlier rulings of lower courts had disagreed on the question whether the trial judge may refuse a plea in this situation. Compare Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968); with United States v. Bednarski, 445 F.2d 364 (1st Cir. 1971); McCoy v. United States, 124 U.S.App.D.C. 177, 363 F.2d 306 (1966).

There are no precedents on the problem before us, whether the plea, endorsed by the prosecutor, may nonetheless be rejected by the trial judge because of his conclusion that the defendant should be tried on the higher charge. Rule 11 and the existing case law seem to provide no guide, although one does find in the commentaries isolated phrases voicing the fear that the judge should not permit the plea bargain to become the means whereby the hardened criminal escapes justice. Neither is there any scholarly discussion of a conflict between the authority of the prosecutor and the trial judge to accept pleas to lesser included offenses in the interests of justice. Discussion of the roles of judge and prosecutor has most often concerned the area of dismissals of criminal indictments.

B.

The element in a plea bargain of dismissal of the charge of the greater offense leads us to consider Rule 48(a) of the Federal Rules of Criminal Procedure, which requires the prosecutor to obtain leave of court in order to terminate a prosecution by dismissal of an indictment. Rule 48(a) does not apply as such to the case at bar, but study of the judicial role in dismissals illuminates our course. As proposed by the Advisory Committee this provision would have adopted the common law rule that the power of the prosecutor to enter a nolle prosequi in a criminal case was unrestricted, and added only the requirement, prevalent in state practice, that the prosecutor state his reasons for seeking dismissals. See 3 Wright, Federal Practice and Procedure § 812 n.13 (1969). However, when this rule was promulgated by the Supreme Court in 1944, it substituted the requirement that dismissal be obtained only by leave of court. The Supreme Court did not state reasons for its action. The primary concern, at least as discerned by subsequent decisions of other federal courts, was that of protecting a defendant from harassment, through a prosecutor’s charging, dismissing without having placed a defendant in jeopardy, and commencing another prosecution at a different time or place deemed more favorable to the prosecution. A similar concern had been voiced prior to Rule 48(a), in the rare instances when the prosecutor sought court sanction though not required by law, and on occasion courts prevented dismissals pregnant with the possibility of harassment.

A distinctly different situation is presented when the defendant concurs in the dismissal but the court is concerned whether the action sufficiently protects the public. As to this, while there is a paucity of authority, some principles do emerge. First, Rule 48(a)’s requirement of judicial leave, theretofore known in state practice, gives the court a role in dismissals following indictment. Second, in the exercise of its responsibility, the court will not be content with a mere eonclusory statement by the prosecutor that dismissal is in the public interest, but will require a statement of reasons and underlying factual basis. Third, the court does not have primary responsibility, but rather the role of guarding against abuse of prosecutorial discretion. The rule contemplates exposure of the reasons for dismissal “in order to prevent abuse of the uncontrolled power of dismissal previously enjoyed by prosecutors,” and in pursuance of this purpose “to gain the Court’s favorable discretion, it should be satisfied that the reasons advanced for the proposed dismissal are substantial.”

In- this context, it may be helpful to note the considerations, other than protection of defendant, that have been taken into account by courts. If the reason is that the evidence is not sufficient to warrant prosecution, the court recognizes that the responsibility is on the prosecution and is satisfied “if there is a considered judgment,” and an application made in good faith, unless it appears that the assigned reason for the dismissal has no basis in fact. In one case, a district court stated that a complete dismissal of charges against an individual, amply supported by the evidence, was not properly grounded in the consideration that the defendant corporation of which he was president would comply with ecology laws. Without commenting on that opinion as such, we note that it expressly recognized that a different consideration applies when the case is not entirely dismissed as to a defendant but he has received a substantial sentence for a phase of the same offense. And of course that is the situation that is involved when there is no dismissal simpliciter, but a plea of guilty to a lesser included offense like second degree murder.

Of particular significance to the case at bar is that even a court which would not accept an unexplained motion for dismissal determined, on reconsideration, that it was satisfied with the prosecutor’s subsequent explanation that prejudice would likely be worked upon the Government in another criminal action.

C.

The third element of a plea bargain involving a plea to a lesser included offense, and indeed the most frequent motive behind it, is to circumscribe the judge’s discretion in pronouncing sentence. See D. Newman, Conviction 105 (1966). The negotiated plea reduces the upper and lower limits of the range of sentence available to the judge. It is axiomatic that, within the limits imposed by the legislature, imposition of sentence is a matter for discretion of the trial judge. The prosecutor has no role beyond the advisory, and even that is frowned on in the District Court for the District of Columbia. We hesitate to say, therefore, that the United States Attorney and the defendant can by plea manipulate this traditional power of the judge without any recourse by the judge permitting him to forestall gross abuses of prosecutorial discretion.

D.

We have identified that both the District Judge and the United States Attorney have roles in the plea bargaining process. What is required is an effort to harmonize their responsibilities, and to suggest a standard for determining when judicial intervention may be proper.

We start with the presumption that the determination of the United States Attorney is to be followed in the overwhelming number of cases. He alone is in a position to evaluate the government’s prosecution resources and the number of eases it is able to prosecute. See United States v. Fleming, 215 A.2d 839 (D.C.App.1966).

Where vigorous prosecution of one case threatens to undermine successful prosecution of another, it has traditionally been the prosecutor who determines which case will be pressed to conclusion, and his decision has been given great deference by the courts. See, e. g., United States v. Shanahan, 168 F.Supp. 225, 230 (S.D.Ind.1959).

On the other hand, we do not think Rule 48(a) intends the trial court to serve merely as a rubber stamp for the prosecutor’s decision. We agree that “the judge should be satisfied that the agreement adequately protects the public interest”. Newman, supra, at 136; The Challenge of Crime in a Free Society: Report of the President’s Commission on Law Enforcement & Administration of Justice 118 (1966).

We now state what, in our view, are the appropriate doctrines governing trial judges in considering whether to deny approval either to dismissals of cases outright or to the diluted dismissal — a guilty plea to a lesser included offense.

First, the trial judge must provide a reasoned exercise of discretion in order to justify a departure from the course agreed on by the prosecution and defense. This is not a matter of absolute judicial prerogative. The authority has been granted to the judge to assure protection of the public interest, and this in turn involves one or more of the following components: (a) fairness to the defense, such as protection against harassment; (b) fairness to the prosecution interest, as in avoiding a disposition that does not serve due and legitimate prosecutorial interests; (c) protection of the sentencing authority reserved to the judge. The judge’s statement or opinion must identify the particular interest that leads him to require an unwilling defendant and prosecution to go to trial.

We now turn to the content of these components, and begin by passing any discussion of fairness to the defense, since it is not directly involved in the case at bar and it has already been identified in the precedents referred to earlier in this opinion. As to fairness to the prosecution interest, here we have a matter in which the primary responsibility, obviously, is that of the prosecuting attorney. The District Court cannot disapprove of his action on the ground of incompatibility with prosecutive responsibility unless the judge is in effect ruling that the prosecutor has abused his discretion. The requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons. That much, indeed, was proposed by the Advisory Committee, and the Supreme Court’s amendment obviously did not curtail the proposed authority of the judge. The judge may withhold approval if he finds that the prosecutor has failed to give consideration to factors that must be given consideration in the public interest, factors such as the deterrent aspects of the criminal law. However, trial judges are not free to withhold approval of guilty pleas on this basis merely because their conception of the public interest differs from that of the prosecuting attorney. The question is not what the judge would do if he were the prosecuting attorney, but whether he can say that the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion.

In like vein, we note that a judge is free to condemn the prosecutor’s agreement as a trespass on judicial authority only in a blatant and extreme case. In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary.

Applying these tests to the case at bar, we find the record establishes beyond all doubt that the United States Attorney considered, indeed agonized over, the public interest and concluded that it was best served by assuring a successful prosecution of Lee — “a young man .... a killer.” The Assistant United States Attorney presented this to the court unequivocally:

We have spent night after night trying to resolve this thing. We have talked with the homicide officers. We have had them to our office. We have pulled the file of Richard Anthony Lee. Your Honor, we are scared to death that unless there is a successful way to prosecute this man — he is a young man. We believe he is a killer. We believe that somewhere in this city right now there is someone who because he will not be prosecuted will die one day in say the next ten years. We believe that Mr. Ammidown pleading to second degree murder — that the sentence in that case will neutralize him. We have no fear of him nowii. We are afraid of what Richard Anthony Lee might do.
Your Honor, we have one obligation. And that is the same obligation that your Honor has, and that is for the public. I prosecute for the Government — for the public — for the people of this city.

The trial judge was not free to disapprove this assessment by the prosecutor without both stating his reasons and determining that the prosecutor abused his discretion. Neither of these elements appears in the case at bar. The trial judge provided no statement of reasons, and such colloquy as appears indicates that the judge assumed that the correct test was what the judge independently considered best in the public interest.

When we come to the possible ground of intrusion on the sentencing function of the trial judge, we have a consideration that is interdependent of the other. That is to say, a dropping of an offense that might be taken as an intrusion on the judicial function if it were not shown to be related to a prosecutorial purpose takes on an entirely different coloration if it is explained to the judge that there was a prosecutorial purpose, an insufficiency of evidence, a doubt as to the admissibility of certain evidence under exclusionary rules, a need for evidence to bring another felon to justice, or other similar consideration.

III.

Because the trial judge did not provide a statement of reasons based on intrusion on the sentencing authority of the judge, it would be necessary to remand in any event. At the time the-judge took the action appealed from, first degree murder was punishable by death, and second degree murder by a maximum of life imprisonment. We need not consider what kind of remand we might have provided if that kind of sentencing disparity were in effect at the present time. For the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), has established the unavailability of the death sentence for appellant. We are required to accompany our reversal for lack of requisite findings with a disposition in the interest of justice, see 28 U.S.C. § 2106, that takes into account current conditions. See Coleman v. United States, 123 U.S.App.D.C. 103, 357 F.2d 563 (en banc 1965).

The situation as it stands today is such that we cannot conceive that if the trial judge were required to provide a current reassessment of the problem in the light of the standards set forth in this opinion, he could justify his rejection of the first degree murder reversal and of the second degree murder plea as reflecting a sentence disparity so blatant as to constitute as intrusion upon the judicial domain. The life sentence is mandatory on a conviction for first degree murder, and discretionary with the court on a conviction for murder in the second degree. Parole is available after a minimum of 20 years in the case of first degree murder, and after a minimum of 15 years in the case of murder in the second degree. The difference is insufficient by itself to warrant judicial rejection of a properly bargained plea of guilty to murder in the second degree on the ground of undue interference with the sentencing domain of the judiciary.

Our duty as a court of appeals calls on us to reverse the action of the trial judge, but we think it only appropriate to accompany our action with an explicit statement that we are fully sensitive to his revulsion concerning this sordid crime. Appellant’s own admissions establish that he took his wife out to dinner in the knowledge that she would soon be raped by his accomplice. And there was certainly evidence to support a jury verdict that appellant had also planned that she be murdered. If the decision were for the trial judge alone to make, his sentiment that the interest of justice called for trial on a charge of first degree murder would be conclusive. But our responsibility to apply the law calls on us to take into account both that a decision of the prosecutor was also involved and that substantial reasons undergirded his conclusion that the overriding public interest called for a certainty in the riddance of the hired gun.

For the reasons stated, the judgment and sentence on a conviction of murder in the first degree is vacated and the case remanded with instructions to accept appellant’s plea of guilty to second degree murder.

So ordered.

ORDER

On consideration of the petition for rehearing by the panel filed By amicus curiae, it is

Ordered by the Court that the aforesaid petition for rehearing is denied.

SUPPLEMENTAL OPINION

LEVENTHAL, Circuit Judge:

The amicus curiae appointed to represent the interest of the District Judge has, with leave of court, filed a petition for reconsideration to enlarge the perspective for considering whether the second degree murder plea may reflect a sentence disparity so blatant as to constitute an intrusion upon the judicial domain.

Our opinion focused on the reality of the record before this court, that the trial judge rejected the plea of guilty to second degree murder because he thought the defendant should be subject to capital punishment. At sentencing the trial judge expressed disappointment because the jury’s recommendation of life imprisonment left him without authority to order the death sentence. (S. Tr. 4).

Amicus curiae puts it that the trial judge could rightly consider, in the exercise of his sentencing discretion, that the consecutive life sentences for premeditated murder (on the first count) and for felony- murder (on the second count) resulted in a minimum term of 40 years (20 plus 20) before parole could be granted by the executive officials involved, as contrasted with 15 years for a single sentence on second degree murder.

The argument of amicus is premised on the faulty proposition that consecutive sentences may be imposed upon convictions for premeditated murder and felony murder. In Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969), we stated that although dual convictions were permissible, “a defendant committing a single homicide cannot be given consecutive sentences for both first degree murder and another crime of homicide.” 132 U.S.App.D.C. at 289, 407 F.2d at 1224. Amicus asserts, however, that this holding was subsequently overridden by Congress in enacting 23 D.C.Code § 112, which provides:

A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.

We conclude that premeditated murder and felony murder are not separate “offenses” within the meaning of 23 D.C.Code § 112. First degree murder is defined in 22 D.C.Code § 2401, as purposeful killing, or killing in the course of commission or attempted commission of certain felonies. It is clear from the structure of section 2401 that rather than describing distinct offenses in one statute, this provision merely offers alternate definitions and modes of proof of the same offense. Our conclusion is fortified by the common law understanding of the law of homicide, from which the statute is taken. At common law, murder was defined as killing accompanied by a given state of mind, most typically intention to cause death or intention to commit a felony. Where there was but one killing, there was but one offense, and one act could therefore give rise to only one sentence, despite the availability of alternate methods of demonstration of the requisite state of the actor’s mind. The enactment in 23 D.C.Code § 112 of a general canon of construction, which presumes that multiple sentences for offenses run consecutively unless stated to be concurrent, was not intended to alter the substantive law of murder.

Petition for rehearing denied.

LEVENTHAL, Circuit Judge

(concurring) :

In accordance with a course I have followed on occasion, I have written a separate concurring opinion notwithstanding that it was I who prepared the opinion for the court, because it contains comments not necessary for the judgment. Yet a concurring opinion that is not binding on the court may have utility in calling the attention of bench and bar to a legal approach that might have been developed in a case but was not, because such observations may help to focus on or clarify an area of the law that profits from reflection and attention. This prompted, for example, my concurring opinion United States v. (William) Dixon, 135 U.S.App.D.C. 401, 403, 419 F.2d 288, 290 (1969), which led, in due course, to a change in jury instructions in this circuit.

As to the present case, I think it may be helpful, in the event a legally similar problem arises again, to point out that our holding that consecutive sentences for murder were unavailable to the trial judge does not mean that no other sentencing alternatives were at his disposal. In appropriate cases, the trial judge could explore the possibility of conditioning his acceptance of the guilty plea to second degree murder on the count charging premeditated murder, upon an additional plea, on the count charging felony murder, to the lesser included offense of the underlying felony, in this case rape. Whether such a course would be lawful and appropriate would depend on the implicating facts, and on the trial judge’s reasons. In the case at bar, there was no attempt by the trial judge to explore any such alternatives. The proffered plea was simply rejected outright. Subsequent events — the results at trial, the conviction of the hired gun, and the decision in Furman v. Georgia— preclude any comprehensible attempt to reconstruct matters as they might have stood.

      . Tr. S-41.

      . Tr. S-42.

      . See, e. g., D. Newman, Conviction 135-36 (1966); Task Force Report: The Courts, The President’s Comm’n on Law Enforcement & Administration of Justice 11, 12-13 (1967); ALI Model Code of Pre-arraignment Procedure § 350.5(2)(c) (Tent.Draft No. 5 1972).

      . Rule 48(a) : “By Attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.”

      . Confiscation Cases, 7 Wall. (74 U.S.) 454, 19 L.Ed. 196 (1869); United States v. Woody, 2 F.2d 262 (D.Mont.1924); United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill.1945).

      . Woodring v. United States, 311 F.2d 417, 424 (8th Cir. 1963); United States v. Cox, 342 F.2d 167, 171 (5th Cir. en banc), cert. denied, Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F.Supp. 483, 486 (S.D.N.Y.1964).

      . See, e. g., United States v. Krakowitz, 52 F.Supp. 774 (S.D.Ohio 1943).

      . As to state practice, see Note, U.Pa.L.Rev. 1057, 1064-68 (1955). In some states the court is assigned the primary responsibility, see, e. g., Cal.Ann.Pen.Code § 1385:
      The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for dismissal must be set forth in an order entered upon the minutes.

      . United States v. Shanahan, 168 F.Supp. 225-229 (S.D.Ind.1958); United States v. Doe, 101 F.Supp. 609, 611 (D.Conn.1951) (may be submitted in camera, if necessary to avoid prejudice to the government).

      . Opinion of Judge Weinfield in United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, supra note 7 at 486 of 228 F.Supp.

      . See United States v. Greater Blouse, Skirt & Neckwear Contractors Assn., supra note 7, at 489.

      . United States v. Bettinger Corporation, 54 F.R.D. 40 (D.Mass.1971).

      . Id. at 41, quoting on this point from United States v. Doe, supra note 10.

      . United States v. Shanahan, supra note 10, 168 F.Supp. at 230.
      In another decision approving a dismissal of a perjury indictment notwithstanding ample evidence of guilt, following an ex parte examination of documents supplied by the Government, the court stated that these justified the Government’s conclusion that the interest of justice and law enforcement would be better promoted by dismissal than trial, and further noted that the dismissal was accompanied by the “disgrace” to defendant supplied by the reference to the evidence of guilt in the Government’s public disclosure of its suggestion for dismissal. United States v. Becker, 221 F.Supp. 950 (W.D.Mo.1963).

      . See C. Wright Federal Practice and Procedure § 512 (1969).

      . Tr. S-48-49.

      . Amicus argues that the possibility of a longer minimum undercuts the premise, in our original opinion, that we could not anticipate that the trial judge, if required to provide a current reassessment, could balk at the sec-om! degree plea merely in order to assure a 20-year minimum before parole (on first degree murder) as contrasted with a 15-year minimum before parole (on second degree murder).

      . Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetating or in .attempting to perpetate any arson, rape, mayhem, robbery, or kidnapping, or in penetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.

      . Hamilton v. United States, 26 U.S.App.D.C. 382 (1905).

      . See Fuller v. United States, 132 U.S.App.D.C. 264, 293, 407 F.2d 1199 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969); Michael & Wechsler, A Rationale of the Law of Homicide, 37 Colum.L.Rev. 701-02 (1937); Arent & McDonald, The Felony Murder Doctrine and Its Application Under the New York Statutes, 20 Corn.L.Q. 288 (1935).

      . In this case the laws of man followed the dictates of the laws of nature, since the principal function of the distinction between first degree murder and other forms of homicide was that first degree murder was punishable by death. Michael & Wechsler, supra note 4, at 702.

      . The sentence in Fuller that premeditated murder and felony murder are separate “offenses” merely might better have read “charges,” since the only issue was whether there could be separate counts and verdicts.

      . Appellant Ammidown asks that we remand for resentence by another judge. This is sometimes done when an appellate court finds an error that it identifies as likely to persist in any further action of the same judge. In the present case we think this is a matter for the sound judgment of the trial judge and chief judge of the District Court.

       United States v. Poole, 161 U.S.App.D.C. -, 495 F.2d 115 (1974); Bellei v. Rusk, 296 F.Supp. 1247, 1252 (D.D.C.1969, 3-judge district court), reversed 401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971).