author: PER CURIAM: BAZELON, Chief Judge,

text:
    UNITED STATES of America v. Lloyd R. GROVER, Appellant.
    No. 71-1355.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 21, 1972.
    Decided Sept. 5, 1973.

      Devin John Doolan, Washington, D. C. (appointed by this Court), for appellant.
    David G. Larimer, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and John F. Evans, Asst. U.S. Attys., were on the brief, for appellee. Harold H. Titus, Jr., U. S. Atty., and James F. McMullin, Asst. U. S. Atty., also entered appearances for appellee.
    Before BAZELON, Chief Judge, and LEVENTHAL and WILKEY, Circuit Judges.
   PER CURIAM:

The appellant was convicted on both counts of an indictment charging second degree murder (D.C.Code § 22-2403) and carrying an unlicensed pistol (D.C. Code § 22-3204). Appellant challenges the judgment sentencing him to five to twenty years on the murder count, asserting it was error for the trial court to deny defense counsel’s request to amplify the instruction on self-defense.

Appellant has not challenged his conviction on the weapons charge, on which he was sentenced to a year’s imprisonment.

I. The Facts

Appellant concededly shot Jessie To-liver at about 6 p. m. on August 21, 1970. Appellant’s contention requires that we begin the statement of facts in the light of appellant’s testimony, with the crap game that began at approximately 4:20 p. m. at the home of appellant’s mother. The game ended after about 15 minutes when appellant and Toliver engaged in a quarrel over appellant’s consistent winning and over Toliver’s “cussing” in front of the appellant’s mother. When Toliver refused to stop, appellant punched him in the face, and bloodied him. Toliver gathered his belongings and left the house, saying to the appellant, “I’ll be back.”

Appellant testified that he took Toliver’s parting remark as a threat to come back with a weapon, based upon his knowledge that Toliver had been involved in knife slashing incidents on prior occasions. Appellant decided to go home and arm himself lest Toliver return and, if appellant weren’t there, “he’d take it out on my sister.” Appellant went to his apartment and obtained a pistol and cartridges. As appellant walked back toward his mother’s house, he encountered Toliver on R Street. After a brief exchange of conversation, the appellant fired a shot at Toliver, wide of the mark. A second shot also missed its target. Appellant testified that, from the outset, he had backed away from Toliver — a total distance of some 35 feet — and that he pulled the revolver from his pocket only after Toliver continued advancing toward him in a menacing fashion, and suddenly pulled a hawk-billed knife from his belt and made a threatening gesture (indicated to the jury.) Appellant fired and missed, deceased kept advancing, and appellant, still backing up, shot four more times.

Appellant’s testimony in support of his claim of self-defense diverged from the testimony of two police officers, who happened to be approaching the intersection of Third and R Streets in a patrol car, when they heard the initial shot. They looked down R Street and saw To-liver retreating from the appellant, who had the gun in his hand. During their observation, deceased was backing away the entire time, and made no threatening gestures. One of them overheard Toliver say to the appellant “You can’t hit me, you’re using blanks.” Thereupon, the appellant fired three more shots, fatally wounding Toliver. The police officers promptly arrested the appellant and took him to police headquarters, where a search of his person disclosed fourteen extra rounds of ammunition in the pocket of his walking shorts.

While appellants version differed from that of the police officers, the Government does not seem to dispute his testimony that deceased had a knife. Indeed, one of the policemen testified he saw what looked to be a knife in Toliver’s right hand, held down at his side. And several defense witnesses stated they saw Toliver swing a knife at the appellant.

II. INSTRUCTIONS ON SELF-DEFENSE AND PROVOCATION

Appellant’s principal contention is that a portion of the trial judge’s instructions on provocation and self-defense were confusing when applied to the particular facts of this case and that the judge should have provided clarification. The judge instructed the jury:

Generally, the defense of self-defense is not available to one who provokes the difficulty, and it is, therefore, important for you to determine who was the aggressor, the defendant or the decedent. Mere words without more are never considered provocation.

When counsel were asked whether there were any objections, appellant’s trial counsel replied that he had no objection but he requested a clarification because of the ambiguity in the phrase “one who provokes the difficulty.” He feared the jury might erroneously conclude that, because the appellant was the aggressor in the affray during the dice game — a fact not disputed by the defense — he was foreclosed from claiming self-defense as to the shooting, which occurred more than an hour later. Counsel urged the court to instruct the jury specifically that, in determining whether or not appellant was the aggressor, they must consider his conduct at the time of the shooting, not his actions during the earlier incident at his mother’s house. This request was refused.

1. We begin by noting that the rule that “generally the defense of self-defense is not available to one who provokes the difficulty,” is subject to exceptions, and refinements, to explain the circumstances under which the rule should be applied. Thus, a man who is the instigator of an encounter that ultimately proves fatal may claim self-de•fense if, prior to the fatal blow, he attempts in good faith to disengage himself from the altercation and communicates his desire to do so to his opponent.

The trial judge omitted the “red book” suggested instruction that embodies this qualification. However, there was no request for this instruction, and there was no testimony by defendant or anyone else to the effect that he had been the aggressor at the street scene and then retreated, nor was any such version a reconstruction of the incident that should naturally have suggested itself to the trial judge, in the absence of a suggested instruction.

2. Coming to the issue of need for clarification of the instruction as given, appellant is concerned that the jury may have thought the judge intended the jury to disallow a claim of self-defense solely because appellant had been the aggressor in the earlier incident at his mother’s home.

Certainly, the jury could take account of appellant’s prior aggressive behavior toward Toliver, and for example, could infer from the earlier assault that appellant harbored malice toward Toliver, or that appellant was more likely to have been the aggressor in the street encounter. They could consider this evidence in weighing appellant’s testimony that Toliver instigated the fatal confrontation.

But of course it would have been error to deny an otherwise established claim of self-defense solely because appellant had previously taken aggressive action toward Toliver. Unlike the circumstances present in Harris v. United States, the incident at the dice game and the street confrontation were not merely stages in an essentially continuous chain of events. In the case at bar, the earlier episode was essentially a “one-punch fight.” The effect of the disengagement of the parties and passage of an hour’s time was to restore them to the status quo ante. Toliver’s privilege of self-defense as to the earlier assault had dissipated, and any attack he might launch upon the appellant would constitute unlawful retaliation. Concomitantly, any disability on appellant because of his prior aggression was lifted, and he was able to defend himself against any subsequent attack. Rowe v. United States, supra. When both parties entered the street encounter there was a critical moment, and the jury had to determine which of the two men was the instigator at that time.

Standing alone, the concluding paragraph of the self-defense instructions might be open to the construction that appellant’s aggressive behavior at the dice game precluded his later assertion of self-defense. When defense counsel focused on the issue, with a request that he said was not an “objection,” the court said (Tr. 491):

I think the whole thing is clear to the jury and when I start ad libbing and explaining instructions without the ability to really sit down and write them down, think them out, I end up likely in trouble where every word, every nuance means something. Now, I don’t think there is any chance of this, so I shall not instruct them further in this.

This disposition is not without its weaknesses. It was made without even awaiting the Government’s submission on the defense request. It is not clear why the judge should have concerned himself with being “in trouble” because he granted a clarification requested by defense counsel that had some possibility of merit. It should not have been decisive that defense counsel had nothing in writing to offer the court; this, after all, was not an instruction given at the request of the defense, and trial counsel had no prior knowledge of the specific phraseology the judge would use.

We would give serious consideration to reversal if we were of the view that there was a significant possibility of prejudice. But we think that possibility, in this case, is gossamer. As defense trial counsel put it in requesting clarification, the earlier incident was “a slight altercation with a punch.” It did not loom large at trial. The essence of the dispute at the trial and in the summation of the counsel was the nature of the street confrontation. The witnesses were examined at length on such matters as whether or not appellant beckoned the deceased across the street; whether it was appellant or the deceased who was moving towards the other when the shooting occurred; whether deceased threatened appellant with the knife; why appellant had armed himself; what were their respective states of mind just before the shooting. Moreover, the possible ambiguity of this paragraph was offset by the context, for the rest of the self-defense instruction (supra, note 3) told the jury to focus on the situation “at the time of this occurrence” (twice), and to acquit if the defendant used such force “as under the circumstances of the case, as you find, he at the moment actually believed” and reasonably believed was necessary to protect against serious bodily harm.

In essence, we conclude that the verdict reflects the jury’s crediting the prosecution witnesses who testified that the fatal shot came when the appellant’s gun was advancing and firing on the retreating knife of the deceased. It was on this point that the defense and prosecution witnesses were in conflict, and that the jury had to determine the fact. We could accept the contention of appellant counsel only if we constructed as a serious possibility that the jury supposed they were being told to convict even if they wholly believed defendant in his testimony. And we simply do not take this as a serious possibility. We discern no prejudicial error.

Affirmed.

BAZELON, Chief Judge,

dissenting:

On the afternoon of August 21, 1970, the appellant, Lloyd Grover, and Jessie Toliver, a longtime acquaintance, engaged in what started as a friendly dice game at the home of appellant’s mother. The game ended in a fight; Grover struck Toliver in the face. An hour and a half later, the two met on a nearby street. The appellant admits that he shot and killed Jessie Toliver. He asserts that the killing was justified because Toliver was advancing on him with a knife, and that he acted in self-defense. At appellant’s trial for second degree murder, some evidence was presented that tended to support his version of the event. Other evidence tended to show that Toliver was retreating when the fatal shots were fired.

The critical question for the jury was whether appellant or Toliver was the aggressor when they met one another on the street. The question in this appeal is whether, in fact, the jury made this critical determination, or whether, because of an ambiguous instruction from the trial court, it focused instead on the earlier fight that concluded the dice game in deciding that Grover was criminally responsible for Toliver’s death.

The trial court instructed the jury that “the defense of self-defense is not available to one who provokes the difficulty.” The majority grants that, given the facts of this case, an ambiguity inheres in this instruction. The jury might well have assumed that “the difficulty” to which the trial judge referred encompassed the earlier fight following the dice game. They might well have taken the instruction to mean that, as a matter of law, appellant’s blow in the earlier encounter triggered a continuous series of events leading to Toliver’s death. They might well have supposed, erroneously, that the legal pendulum mechanics governing self-defense required them to find the appellant guilty if they found him the aggressor in the earlier encounter.

The majority admits this possibility, and then dismisses it as “gossamer.” It contends that the contested portion of the instruction, while ambiguous in the abstract, was clear in the context of the instruction as a whole. I cannot agree. On the contrary, I find nothing in the instruction that cures the ambiguity. Earlier in the instruction the trial court said:

If the defendant did not provoke the assault and at the time of the occurrence had reasonable grounds to believe . . . that the decedent was about to take his life . . . the defendant was not required to retreat

It need hardly be said that, according to standard rules of grammar and ordinary understanding, the phrase “at the time of the occurrence” modifies only the subsequent part of the sentence. Indeed, the placement of the phrase implies a distinction between the time of the provocation and the time of the shooting. The ambiguity remains. If anything, it is reinforced by the remainder of the instruction.

The majority further contends that the earlier altercation “did not loom large at trial.” This is true enough; but, of course, the defendant in no way disputed that it had taken place. There is no question that evidence of the earlier fight was presented to the jury. It figured prominently in the appellant’s own testimony. Moreover, the Government emphasized it in its closing remarks :

Who, ladies and gentlemen, actually struck the first blow? Who was it in the house, according to Grover’s own testimony, that struck out at a man sitting at a table, this man of peace who struck out at a man sitting at the table . . . ?

This remark emphasizing the earlier encounter — an emphasis entirely consistent with the erroneous rule of law that the charge suggests — dissolves any lingering doubt that the ambiguity in the charge had a prejudicial effect.

Nonetheless, the majority concludes “that the verdict reflects the jury’s crediting the prosecution witnesses who testified that the fatal shot came when the appellant’s gun was advancing and firing on the retreating knife of the deceased.” I confess that I do not have the powers of divination with which the majority is apparently blessed. I do not know what the crucial determinant of the jury’s verdict might have been. I do not know whether the jury was misled by the charge. But I think there is a significant possibility that it was. It is one thing for judges, trained in the law, to read an instruction “in context,” and to derive from it an accurate, if not entirely clear, statement of the law applicable to the facts. It is quite another to assume that juries of laymen can do the same.

Our system of determining guilt operates on the assumption that juries will apply the law they are given — tempered, perhaps, by their own sense of justice— to the facts that they find. It is essential that the trial court clearly and accurately set forth the law governing the case: “. . . the responsibility for instructing as to the elements of the offense rests with the judge.” Green v. United States, 132 U.S.App.D.C. 98, 405 F.2d 1368, 1370 (1968). The trial court here failed in this vital task.

In the interest of justice, Lloyd Grover’s conviction of second degree murder should be reversed. He should be afforded a new trial. His guilt should be determined by a jury fully informed of the facts, accurately and unambiguously informed of the law, not by a guessing game played under the rubric of harmless error. I dissent.

      . There is a conflict in the testimony, not relevant to this appeal, whether Toliver crossed the street to intercept the appellant, or whether the appellant called him. over.

      . Although no knife was found on or near Toliver’s body, it was suggested that the knife may have been picked up by one of the many bystanders who gathered immediately after the shooting. The Government made no issue of this at trial and conceded throughout that Toliver had, in fact, been armed.

      . The full text of the instruction on self-defense was as follows:
      Now, we have spoken here of justifiable and excusable homicide, and also included in that is self-defense. In this case it is the contention of the defendant that he was acting in self-defense at the time of this occurrence and I may say to you that if the defendant was acting in self-defense as I shall outline it to you, you should find that then he would not be guilty of either second degree murder of manslaughter.
      On the other hand, if he was not acting in self-defense then he may be guilty of either or none, depending on what you find from the evidence.
      Now, the contention that the defendant acted in self-defense makes it appropriate that I should instruct you on the law of self-defense. If the defendant did not provoke the assault and at the time of the occurrence had reasonable grounds to believe and in good faith believed that the complaining witness or the decedent was about to take his life or do him serious bodily injury, the defendant was not required to retreat nor to consider whether he could safely retreat but was entitled to stand his ground and meet force with force and meet any attack made upon him by the decedent in such manner and with such force as under the circumstances of the case, as you find it, he at the moment actually . believed and had reasonable ground to believe was necessary to save his life or to protect himself from serious bodily injury.
      The use of such force as at the time appears reasonably necessary is justified even though it may afterward turn out that the appearances were false and there was in fact neither design to do serious injury nor danger that it would be done or actual need to use so much force in self-defense.
      Generally, the defense of self-defense is not available to one who provokes the difficulty, and it is, therefore, important for you to determine who was the aggressor, the defendant or the decedent. Mere words without more are never considered provocation.

      . Rowe v. United States, 164 U.S. 546, 17 S.Ct. 172, 41 L.Ed. 547 (1896) (per Harlan, J.). See Harris v. United States, 124 U.S.App.D.C. 308, 364 F.2d 701 (1966); Frady v. United States, 121 U.S.App.D.C. 78, 99, 348 F.2d 84, 105 (concurring opinion); cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965). Alternatively, the rule is sometimes stated thus: By reason of the initial aggression, the law imposes on the aggressor a duty to withdraw from the affray. But once having attempted to withdraw or retreat, the right to meet deadly force with deadly force is rekindled. See Perkins Criminal Law 1005 et seq. (1969).

      . See e. g., District of Columbia Bar Ass’n, Young Lawyer’s Section, Criminal Jury Instructions for the District of Columbia, Instruction 5.17C, at 241 (2d ed., 1972) :
      'If the defendant was the aggressor or if he provoked the assault upon himself, he cannot invoke the right of self-defense to justify his use of force. However, if one who provokes a conflict later withdraws from it in good faith, and communicates that withdrawal by words or actions, and he is thereafter pursued, he is justified in using deadly force to save himself from imminent danger of death or serious bodily harm.
      Although the instruction’s emphasis on “pursuit” by the victim, rather than retaliatory attack, renders this formulation less than perfect, it at least makes clear that the aggressor does not permanently forfeit his right of self-defense.
      These instructions in red binders, are widely used by trial judges in the District of Columbia, hut they are suggestions, derived from precedents, and are of course not binding.

      . In Harris v. United States, supra, we held that the Government was entitled to introduce evidence of a prior attack upon the deceased, which occurred some 50 minutes before the fatal stabbing, and that the jury might consider this evidence — and, indeed, “all the circumstances leading up to the fatal affray” — in determining whether or not to credit the accused’s plea of self-defense. Our opinion in that case was addressed wholly to the question of admissibility; and, because there was clear proof that the accused, while armed with a knife, had initiated the fatal encounter by seeking out the deceased at his home, it was unnecessary for us to consider whether the earlier aggressive conduct would as a matter of law vitiate the subsequent claim of self-defense.

      . The prior assault of course constitutes uncharged misconduct. But the law is clear that evidence of this sort is admissible for the limited purpose of showing intent, motive, and the like. Harris v. United States, supra; Burcham v. United States, 82 U.S.App.D.C. 283, 163 F.2d 761 (1947). See United States v. Marcey, 142 U.S.App.D.C. 253, 256, 440 F.2d 281, 284 (1971); Harper v. United States, 99 U.S.App.D.C. 324, 239 F.2d 945 (1957). Cf. Drew v. United States, 118 U.S.App.D.C. 11, 15-16, 331 F.2d 85, 89-90 (1964).

      . See note 6, supra.

      . The instruction given was similar to one in the “red book” (supra, note 5), but defense counsel could not know what portions of these would be used, and as already noted one of them was not included (see point 1). Indeed, the instruction as given by the trial judge was not identical with the red book suggestion, which uses the phrase “provokes the conflict.” (note 5, supra). That wording is possibly less likely to raise the ambiguity noted by defense counsel.

      . Concededly it was appellant who was the aggressor at the earlier occurrence, the one-punch incident during the dice game.

      . We reject appellant’s remaining contention that the trial court erred in admitting evidence that he was carrying fourteen extra cartridges in his pocket at the time of the shooting. This evidence, fleshing out the picture of appellant’s state of mind from the events immediately prior to the shooting, was relevant to the issue of malice. Appellant contended that his actions were motivated by concern for the safety of his mother and sister. Yet the evidence showed that appellant’s trip to and from his residence — barely three blocks from his mother’s house — took approximately one hour. There was also evidence that appellant had taken the trouble to secure a towel. These circumstances permitted an inference of careful preparation and cast doubt upon his asserted intent to return immediately to protect his mother and sister. Evidence that appellant cached extra ammunition in his pocket could legitimately substantiate the Government theory that appellant, seeking a show-down with the deceased, was the likely aggressor in the street encounter.
      The Government has called our attention to a point not raised by appellant’s counsel. In the course of his instructions on malice, the court charged:
      In determining whether a wrongful act is intentionally done and is, therefore, done with malice aforethought.
      That passage is virtually identical to the instruction disapproved in Green v. United States, 132 U.S.App.D.C. 98, 405 F.2d 1368 (1968), as inaccurately equating malice with an intentional act. However, in the second Green case, 137 U.S.App.D.C. 424, 424 F.2d 912 (1970), cert. denied, 400 U.S. 997, 91 S.Ct. 473, 27 L.Ed.2d 447 (1971) and in Mitchell v. United States, 140 U.S.App.D.C. 209, 434 F.2d 483 (1970), we held that errors of this sort were non-prejudicial when accompanied by other instructions that correctly defined malice by emphasizing the requisite “man-endangering” state of mind. The totality of the instructions on malice in the present case likewise render the error harmless.

       Defense counsel pointed out the ambiguity to the trial court and requested clarification ; the trial court declined to supply it. This is not a case, therefore, in which counsel failed to call the court’s attention to the problem — even assuming that such failure would in any way affect the proper result. See Green v. United States, supra; Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150, 157 (1967) (Bazelon, C. J., dissenting) .


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America v. Tyrone GASKINS, Appellant.
    No. 72-1833.
    United States Court of Appeals, District of Columbia Circuit.
    Sept. 5, 1973.

      Harold H. Titus, Jr., U. S. Atty., John A. Terry and Joseph E. DiGenova, Asst. U. S. Attys., were on the motion for appellee.
    Craig Mathews and J. Drake Turrentine, Washington, D. C., were on the motion for appellant.
    Before WRIGHT and LEVENTHAL, Circuit Judges.
   PER CURIAM.

Appellant was convicted of the felony of first degree burglary. He assigns as one ground of error the District Court’s refusal to accept appellant’s tendered plea of guilty to the lesser-included offense of unlawful entry, a misdemeanor, even though the prosecutor agreed to accept such a disposition, and vigorously urged the acceptance of the bargained plea upon the court. The Government, conceding merit in this claim, has moved to the District Court to accept the lesser plea. We are not bound by this concession, but after examination of the record we conclude that there was indeed error as claimed.

At a hearing held March 13, 1972, appellant admitted entering, without permission, the home of Mr. and Mrs. Willard J. Blackwell, Sr. where he was apprehended by the Blackwells’ son, an officer of the Metropolitan Police Department, who was off duty at the time. When asked by the court to describe further what had happened on the evening in question, appellant related that he had entered the house against his will when a “dude pointed a gun at me and told me to go in the house.” The court then stated, “I can’t take the plea.” Both defense counsel and prosecutor urged that in the face of the strong proffered evidence, the District Court could accept the tendered plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), even though appellant maintained his innocence. The court maintained that as long as the appellant equivocated about his guilt, he should go to trial, gaining acquittal if he were believed and taking the chance of a felony conviction. Immediately prior to trial, on April 11, 1972, appellant once more attempted to plead guilty to the lesser-included misdemeanor of unlawful entry. Again, the District Court refused to accept the plea, stating: “I am not going to accept the plea unless the defendant admits that he committed the crime.”

The District Court’s only reason for not accepting the plea was appellant’s refusal to state an unequivocal confession of guilt. In North Carolina v. Alford, supra, the Supreme Court held that a plea of guilty to second degree murder was constitutionally valid even though the defendant maintained his innocence, as long as there was strong evidence of guilt before the trial court, and the plea represented “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” 400 U.S. at 31, 91 S.Ct. at 164. The Court recognized that in some cases the Government’s evidence against a defendant might be so strong that he “may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Although Alford squarely accepted the joinder of a guilty plea with refusal to admit guilt, at least as to any constitutional bar to such joinder, the Court also recognized that a defendant “does not have an absolute right under the Constitution to have his guilty plea accepted by the court . . .” Id. at 38 n. 11, 91 S.Ct. at 168. The Court noted that Rule 11 of the Federal Rules of Criminal Procedure provides that the trial court “may refuse to accept a plea of guilty,” but added that “[w]e need not now delineate the scope of that discretion.” Id. Although Rule 11 invests the District Court with discretion to refuse a guilty plea it is an abuse of discretion to refuse a guilty plea solely because the defendant does not admit the alleged facts of the crime.

In McCoy v. United States, 124 U.S.App.D.C. 177, 178, 363 F.2d 306, 307 (1966) this Court acknowledged that a literal reading of Rule ll’s language “resposes a discretion” in the court to refuse a guilty plea, but added, “the plea should not be refused without good reason.” The Court recognized that “guilt . is at times uncertain and elusive” and emphasized that “the court is not required to insist that the accused concede the inevitability or correctness of a verdict of guilty were the case tried.” 124 U.S.App.D.C. at 179, 363 F.2d at 308.

In Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968), we held that the trial court erred in refusing to accept a bargained plea to manslaughter on a second degree murder indictment where the plea was refused because interrogation of the defendant by the court exposed inconsistences in his prior account which raised the possibility of a self-defense claim. The discretion afforded by Rule 11 was noted, but the Court then added:

Appellant’s inconsistencies did not afford good ground for refusing the plea. The discretion is to be exercised in relation to the problem as it is presented, which is usually, as it was here, a composite of factors. One is the desirability of encouraging guilty pleas where the prosecution, as in this case, was satisfied that because of doubt as to just what occurred or for other reasons it need not seek a verdict for the most severe offense charged. As we said in McCoy v. United States, supra, a guilty plea should not be refused without good reason even though it be to a lesser included offense.

Id. at 110, 405 F.2d at 1380.

The Supreme Court has recently reiterated what is universally acknowledged: “The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). When the trial judge is presented with a “factual basis for the plea”, as there surely was in this case where there was strong factual evidence implicating defendant, an intelligent and voluntary counselled plea should not be refused simply because the defendant who is willing to enter a plea of guilty is unable or unwilling to testify to his guilt in factual terms. The entry of such a plea of guilty in such a situation is not contrary to the interests of justice. Rule 11 was intended for the protection of the defendant, and does not require a denial to the defendant of the opportunity to act in his own best interest, as advised by his trial counsel. When a defendant seeks to plead guilty while protesting his innocence, the trial judge is confronted with a danger signal. It puts him on guard to be extremely careful that his duties under Rule 11 are fully discharged. It highlights the importance of his obligation under Rule 11 to assure that there is indeed a factual basis for the plea and that the defendant is clearly advised not only of the penalties to which he is exposed but of the fact that his plea waives any defenses to the charge. But after fully satisfying himself of the factual basis for the plea, and that the presentation of pertinent facts discloses no plain legal defense, the trial judge errs in insisting on trial merely because the defendant refuses to accompany his plea to lesser charges with an admission of the guilt indicated by the other evidence presented to the court.

Appellant’s conviction is reversed, and appellee’s motion to remand is granted with instructions to accept a plea of guilty to the charge of unlawful entry.

So ordered.

      . 22 D.C.Code § 1801(a).

      . 22 D.C.Code § 3102.

      . The officer did not live in his parents’ home, but came to the house when alerted by a visitor that the glass in the front door liad been broken.

      . Appellant stated that two persons approached him while he and a friend were walking in the alley behind the Blackwells’ home. Ilis friend ran away, but one of the two persons pointed a gun at him and ordered him into the house.

      . The prosecutor stated that its evidence at trial would show that appellant started to run after being found in the house by Officer Blackwell. Although appellant knew that Blackwell was a police officer, he didn’t immediately tell him that there were two persons outside who had forced him in at gunpoint. The back door had been kicked in and the glass broken out of the door.
      Appellant was unable to supply defense counsel with any information about the two persons who ordered him into the house. Both defense counsel and the prosecutor tried to impress upon the court that without any information about the two persons the jury was unlikely to believe appellant’s version.

      . Motion for Bail Review Transcript at 8-9: “I don’t want to take a plea of guilty under these circumstances. If he is going to equivocate like that and say he was forced to go into the home, let him have a trial. If the jury believes him, he will be acquitted. If the jury doesn’t believe him, he will probably be convicted of a felony. That is right. He can take that chance.”

      . See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (dictum).

      . Rule 11 provides in its entirety :
      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.

      . Cf. United States v. Bednarski, 445 F.2d 364 (1stCir. 1971).

      . See Fed.R.Crim.P. 11.


author: MacKINNON, Circuit Judge:

text:
    Marianne Crocker ELRICK v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
    No. 72-1366.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 15, 1973.
    Decided Sept. 10, 1973.

      Keith A. Jones, Atty., Dept. of Justice, of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice by special leave of Court, for appellant. Scott P. Crampton, Asst. Atty. Gen., and Leonard J. Henzke, Jr., Atty., Dept. of Justice, were on the brief for appellant. William A. Friedlander, Atty., Tax Div., Dept. of Justice, also entered an appearance for appellant.
    Sidney D. Rosoff, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, for appellee.
    Before BAZELON, Chief Judge, TUTTLE, Senior Circuit Judge for the Fifth Circuit, and MacKINNON, Circuit Judge.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   MacKINNON, Circuit Judge:

This appeal involves certain claimed deficiencies in federal income taxes for the taxable years 1965 and 1966 in the amounts of $17,267.63 and $11,829.28 respectively. The decision of the United States Tax Court in favor of taxpayerappellee is under attack here on appeal by the Commissioner.

The facts of the case are undisputed. On October 25, 1937, when taxpayer was four years old, her parents entered into a separation agreement which survived their divorce several months thereafter. Under the terms of the agreement, taxpayer’s father, on November 1, 1937, created for her benefit an inter vivos trust consisting of 5,000 shares of capital stock of Provident Securities Company, a closely held California corporation. The terms of the trust provided that, during the joint lives of taxpayer and her father, all of the net income of the trust was to be paid over to the father until taxpayer reached her twenty-first birthday. At that time, taxpayer was to receive annually the first $10,000 of annual net income if unmarried and so long as she remained unmarried. However, if married at the time of her twenty-first birthday, of if married subsequent to that time, she was to receive annually $6,000 of the trust’s annual net income. In each instance, the balance of the net income was to be paid to the settlor, taxpayer’s father. The trust indenture also provided that, upon the death of taxpayer’s father, taxpayer would receive annually the entire net income of the trust. In addition, upon the death of her father she would receive one-third of the trust corpus upon reaching the age of twenty-one, and one-half of the remaining corpus upon attaining the age of thirty-five. The corpus remaining at taxpayer’s death was to be divided equally among her surviving issue, if any. Finally, taxpayer’s father retained the right to revoke the trust agreement with the consent of the taxpayer’s mother.

In 1955, taxpayer, who was then married and twenty-one years of age, was entitled to trust income of $6,000 a year. However, with the consent of taxpayer’s mother (who had consulted with the taxpayer), her father, on February 15, 1955, revoked the trust agreement of November 1, 1937. In place of the first trust, and as consideration for taxpayer’s mother’s consent to the revocation, taxpayer’s father created a second trust for taxpayer’s benefit, with a corpus consisting of 2,200 shares of capital stock of Provident. Under the terms of the new trust indenture, taxpayer was to receive the entire annual net income from the trust during her lifetime and was to have a testamentary power of appointment over the corpus which could not be exercised in favor of the taxpayer, her estate, her creditors, or the creditors of her estate. Taxpayer’s annual income increased substantially as a result of the revocation of the first trust and the creation of the second trust. Where her income from the first trust would have been limited to $6,000, her taxable income from the second trust averaged approximately $31,000 for the years 1955 through 1961.

On March 13, 1961, taxpayer’s father died testate, his will expressly providing that taxpayer should not share in his estate. Taxpayer immediately retained counsel to contest the will on various grounds. In addition, taxpayer filed suit for quasi-specific performance of a contract to make a will, or in the alternative, for a rescission of both the revocation and trust agreements of February 15, 1955. In this claim, taxpayer alleged that in return for her mother’s consent to the revocation of the 1937 trust agreement, her father had promised to provide equally for taxpayer and the other two children in his will, after taking into account what taxpayer received under the trust agreement of 1955.

Taxpayer’s legal actions were settled by agreement of the parties on May 13, 1963. Taxpayer agreed to dismiss her suits and the other parties agreed to pay her $250,000 in settlement of her claim for specific performance of a contract to make a will. The agreement provided that payment should be made by transferring 909 shares of the capital stock of Provident (valued at $275 a share) to the 1955 trust, the stock to be held, administered, and distributed in accordance with the provisions of that trust. Taxpayer was also given the option to receive in cash, free of any trust, any amount not to exceed $275 for each share of Provident stock up to 227 shares which would not be placed in trust. Taxpayer opted to have all 909 shares of the Provident stock placed in the trust, thereby increasing its corpus to 3,109 shares.. As a result, the annual income received by taxpayer from the trust increased by about 50 percent, and constituted her main source of income.

Pursuant to the contingent fee agreement between taxpayer and her attorneys, she paid legal fees of $52,500 in 1963 and 1964, $22,536.70 in 1965, and $20,000 in 1966 in asserting and settling her claim against her father’s estate. Taxpayer deducted these expenditures in full as ordinary and necessary expenses for the production of income on her income tax returns for the respective years in which the fees were paid. After the Commissioner of Internal Revenue disallowed these deductions for 1965 and 1966, taxpayer filed a petition in the Tax Court in which she abandoned her original position and conceded that the legal fees were capital expenditures and not deductible as ordinary and necessary expenses. She argued rather that the legal fees were amortizable over the useful life of the income-producing asset (i. e., the life estate in the 909 shares of Provident stock) which the legal fees were expended in acquiring. The Commissioner argued that the fees were not deductible under any theory but must simply be added to taxpayer’s basis in the life estate. The Tax Court agreed with the taxpayer’s new position and this appeal ensued. We reverse.

To begin with, however, we agree completely with the Tax Court that taxpayer-appellee’s original contention that the legal expenses in question were fully deductible under § 212 as ordinary and necessary expenses for the production of income is wholly without merit. Marianne Crocker Elrick, 56 T.C. 903, 908 (1971). Under recent Supreme Court decisions there can be no question that such legal expenses incurred in the acquisition of property having a useful life to the taxpayer substantially beyond the taxable years in issue are capital in nature and become part of taxpayer’s basis in the asset. Woodward v. Commissioner, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577 (1970); United States v. Hilton Hotels Corp., 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (1970).

Taxpayer’s principal claim is that she is entitled to a depreciation deduction under § 167(a)(2) for the amortization of these legal fees over the useful life of the income producing asset, here the life estate in the 909 shares of Provident stock. An intangible asset may be the subject of such a deduction and it is well established that the purchaser of a life estate in income producing property is entitled to amortize the cost basis of his acquisition over the period of the life expectancy of the beneficiary (in this case the taxpayer herself) by ratable annual deductions. Gist v. United States, 296 F.Supp. 526 (D.C. 1969) aff’d 423 F.2d 1118 (9th Cir. 1970); Commissioner v. Fry, 283 F.2d 869 (6th Cir. 1960) aff’g 31 T.C. 522 (1958); Bell v. Harrison, 212 F.2d 253 (7th Cir. 1954); Estate of Daisy F. Christ, 54 T.C. 493 (1970); May T. Hrobon, 41 T.C. 476, 503 (1964); Elmer J. Keitel, 15 B.T.A. 903 (1929); see also, 4 J. Mertens, Law of Federal Income Taxation § 23.63a (1966 rev.). However where the life estate was not purchased in an exchange transaction for good and sufficient consideration, § 273 of the Internal Revenue Code denies the depreciation deduction. Section 273 provides that income generated bv a life interest that was acquired by gift, bequest or inheritance snau not ue rtuuced by any deduction for depreciation (or amortization or any other name for the same concept). Thus if the life estate in issue in this case was acquired by gift, inheritance or bequest, no depreciation deduction would be allowable and taxpayer’s claim must fail.

Taxpayer’s interest in the life estate which is here in question arose in settlement of certain claims against her father’s estate. Taxpayer claimed, and the Tax Court agreed, that the transaction should be characterized not as a settlement of a will contest, but rather of an action for “quasi-specific performance °f a contract to make a will.” Marianne Crocker Elrick, 56 T.C. 903, 909 (1971). “Any interest she acquired as a result of the settlement of this claim flowed from her standing as a third-party beneficiary and not from her standing as an heir, devisee, donee, or legatee.” Id.

In determining the correctness of this characterization, attention must be directed to the Supreme Court’s decision in Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119 (1938) holding that recoveries in compromise or settlement are of the same nature for tax purposes as recoveries that would have been received had the claim been fought out to its ultimate conclusion. Lyeth involved an heir who attacked his grandmother’s will and ultimately settled with the estate for certain property which could not have been received had the will gone uncontested. The Commissioner sought to tax these proceeds as income, but the Supreme Court held that they constituted an inheritance since they were received in taxpayer’s capacity as heir:

Petitioner was concededly an heir of his grandmother under the Massachusetts statute. It was by virtue of that heirship that he opposed probate of her alleged will which constituted an obstacle to the enforcement of his right. Save as heir he had no standing .. .
There is no question that petitioner obtained that portion, upon the value of which he is sought to be taxed, because of his standing as an heir and of his claim in that capacity .
Whether he would receive any property depended upon the validity of his ancestor’s will and the extent to which it would dispose of his ancestor’s estate. When, by compromise and the decree enforcing it, that disposition was limited, what he got from the estate came to him because he was an heir . . .

Lyeth v. Hoey, supra, 305 U.S. at 195-197, 59 S.Ct. at 159, 160. While arguably the taxpayer in this case also obtained her life estate principally due to her status as heir, the Tax Court distinguished Lyeth in that here the taxpayer was claiming not as an heir, but as a third party beneficiary of a contract to make a will. Since we need not reach the question of whether this was in fact a will contest, vel non, we will accept the Tax Court’s position for purposes of this opinion. However, we emphasize this caveat: that this court will not be bound by the parties’ self-serving characterization of the settled claim.

That is, we are concerned that the Tax Court seemed to feel that merely by labeling her causé of action one for “quasi-specific performance of a contract to make a will,” taxpayer managed to foreclose all inquiry into the true nature of her claim. This would be the ultimate perversion of the Lyeth rationale. Lyeth holds that it is the realities of the claim that control the characterization of the subsequent compromise or settlement, not the labels of the parties. In this regard, some preliminary judicial approval of the formulation of the issues would constitute an important factor in determining the nature of plaintiff’s claims — and the further along the trial has progressed, the greater the ease with which this determination can be made with assurance. Otherwise the courts would be at the mercy of collusive settlement agreements wherein the parties, in the accommodating spirit of compromise (and with the foresight derived from the services of knowledgeable tax attorneys) have agreed to choose which of the pending causes of action is most advantageous for tax purposes and proceed to characterize the agreement a settlement of that claim alone.

In this case, taxpayer’s first action in California’s Probate Court challenged her father’s will on grounds “that at the time of its [the will’s] execution her father was not of sound and disposing mind; that the will had not been executed and attested in the manner and form required by law; and that the will was the direct result of the undue influence of others.” Marianne Crocker Elrick, 56 T.C. 903, 905 (1971). After issue was joined in this action, taxpayer and her mother filed a second action for quasi-specific performance of a contract to make a will. Subsequently settlement was achieved and both actions were dismissed. The parties to the settlement agreement characterized the agreement as one of settlement solely of the specific performance action in equity. We repeat, such descriptions are not binding on the courts which will look to the substance of the claim compromised.

This is not to say that the courts must hypothetically weigh the respective likelihood of success of each of the taxpayer’s arguments, but simply that eonclusory labels whether for tax-avoidance purposes or not, cannot be dispositive on the issue of the true character of a taxpayer’s claim which is ultimately terminated by compromise or settlement, at least for purposes of applying the Lyeth principle. In this case, taxpayer’s various claims against her father’s estate, out of which the compromise agreement was born, taken as a whole, could well be characterized for tax purposes not as making out a contract action, but rather as an ordinary will contest.

However, we are not compelled by the posture of this case to reach our decision by that route. Even assuming that the Tax Court was correct in that the settlement was solely of a claim against the estate based on a contract to make a will, and not on the alleged invalidity of the will itself, this does not mean that the life estate was not a gift or inheritance for tax purposes. Contracts to make a will have repeatedly been held to constitute gifts or inheritances under the Code. The test is whether the recipient of the funds furnished adequate and full consideration for the payments received from the decedent. E. g., Taft v. Commissioner, 304 U.S. 351, 58 S.Ct. 891, 82 L.Ed. 1393 (1938); In re Estate of Hartshorne, 402 F.2d 592 (2d Cir. 1968); Markwell’s Estate v. Commissioner, 112 F.2d 253 (7th Cir. 1940). In this case taxpayer-appellee urges that “the 1955 transaction was bona fide and at arm’s length” (Appellee’s br. at 11). We feel that the record does not begin to support this facile contention since there was a total absence of consideration moving from taxpayer to her father in return for his promise to make a will.

This contract to make a will was alleged to have arisen out of the 1955 agreement between taxpayer’s mother and father pursuant to their revocation of the first trust. The father’s promise was supported by the mother’s agreement to consent to the revocation. Taxpayer herself bargained away no possessory rights in the exchange for the promise to make a will. Her interest in the first trust was at all times subject to the revocation of the trust agreement by her parents. (Jt. Exh. C-3, U 6). It is eminently apparent that this was a donative transaction intended to confer a gift or inheritance upon the taxpayer. The father’s promise to make a will was elicited by the mother solely in order to benefit her daughter and taxpayer became thereby a donee beneficiary with enforceable rights against the estate. From taxpayer’s viewpoint a gift is a gift nonetheless for owing its creation to a third party beneficiary contract rather than simple delivery plus donative intent. Taxpayer’s claim (Appellee’s br. at 11-12) that she was a creditor beneficiary of the contract demonstrates a profound misconception of the applicable legal principles. A creditor beneficiary is one who is owed a legal duty or liability by the promisee. The promisor, in return for good consideration, agrees to discharge the promisees’s obligation to the creditor beneficiary. Here the taxpayer’s mother (the promisee) was under absolutely no obligation to contribute to the support of the taxpayer. The consideration furnished to the promisor-father (the mother’s consent to revocation) could only have arisen out of a donative intent to benefit her daughter. This motivation, powerful though it may be, was referrable exclusively to their blood affinity and maternal affection.

Analyzed without resort to the distinction between donee and creditor beneficiaries, the result is precisely the same. No consideration was furnished by the taxpayer for her father’s promise. Instructive in this regard is the case of Early v. Commissioner, 445 F.2d 166 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 100, 30 L.Ed.2d 96 (1971). In that case the decedent had made an inter vivos gift of valuable securities to the taxpayers which came under attack upon decedent’s death by the decedent’s natural heirs. Taxpayers were joined as parties in the attack on decedent’s will and their ownership of the shares placed in dispute. A settlement was concluded which provided that taxpayers would surrender the stock to the decedent’s estate in return for a life estate in the income from a trust made up of the disputed shares. Taxpayers sought to take annual deductions for amortization of the value of their cost basis in the life estate (consisting of the value of the shares transferred back to the estate plus $20,000 in attorney’s fees), claiming that the settlement agreement in reality provided for a purchase of the life estate with the stock. The Fifth Circuit held that while it was recognized that there could be circumstances in which a donee of another could exchange property with the donor to purchase an amortizable life interest notwithstanding § 273, and that this may even be possible where that which the donee exchanges consists of rights or property originally acquired of the donor, nevertheless the relinquished stock in that case was not sufficiently reduced to possession to such extent that the transaction was purely one of exchange. The court felt that the settlement was basically of a dispute over the validity of a gift from the decedent and, under the Lyeth rationale, thus constituted a gift for tax purposes. Therefore the court disallowed the claimed deductions, applying § 273.

In the case sub judice, taxpayer similarly claims that property originally acquired from the decedent was then subsequently exchanged in a “purchase” transaction for a new interest, also from the decedent which was the subject of her claim against the estate. Yet here there was not even ,the colorable consideration present in Early moving from taxpayer to her father. Her interest in the trust was subject at all times to modification or revocation by her parents and their decision to supplant that first trust with a second trust plus a promise to make a will can in no way be characterized as a bona fide purchase by the taxpayer of that interest in her father’s estate.

Even if she were a party to the contract to make a will, i. e., even if she had absolute possession of the corpus and income of the trust or her consent were legally necessary to any revocation thereof, and had herself bargained with her father for the contract to make a will, we would still have a difficult time finding on these facts that there was a legitimate arm’s length purchase of the life estate for full and fair consideration. Where a taxpayer is a natural object of the decedent’s testamentary disposition, the recipient of a recovery in settlement of a disputed contract to make a will in such an intrafamilial setting must overcome a heavy evidentiary burden to show a detached, bargained-for purchase of the claim against the estate in order to avail himself of a depreciation deduction in the face of § 273. It is difficult not to conclude that such an arrangement was not primarily intended to pass the life estate as a “gift, bequest or inheritance.”

We conclude, then, that there was a complete absence of consideration contributed by taxpayer in acquiring this life estate. Her only possible status in enforcing this contract to make a will was as donee beneficiary of a third party beneficiary contract. Therefore, under Lyeth, amounts received in settlement of that claim are of the same character as the claim itself. As such the life estate was in fact received as a gift for tax purposes and no income produced by it may be reduced by any deduction for depreciation in light of the strictures of § 273.

Reversed.

      . Marianne Crocker Elrick, 56 T.C. 903 (1971).

      . Most of the facts were stipulated by the parties in the Tax Court. Id. at 903; see Stipulation of Facts, J.A. at 17.

      . SEC. 167. DEPRECIATION
      (a) General Rule — -There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)—
      * * :¡:
      (2) of property held for the production of income.

      . Treas.Reg. § 1.167(a) — 3 (1956).

      . To his cost would be added other acquisition expenses subject to capitalization such as legal fees to arrive at his depreciable basis.

      . Section 273 provides as follows :
      HOLDERS OF LIFE OR TERMINABLE INTEREST.
      Amounts paid under the laws of a State, a Territory, the District of Columbia, a possession of the United States, or a foreign country as income to the holder of a life or terminable interest acquired by gift, bequest, or inheritance shall not be reduced or diminished by any deduction from shrinkage (by whatever name called) in the value of such interest due to the lapse of time.
      At the outset we may dispose of appellee’s initial claim that this section does not apply to legal fees because there is no “shrinkage in value" of the life interest. However, appellee is misled by the rather imprecise drafting of this provision. The language “any deduction for shrinkage (by whatever name called) in the value of such interest due to the lapse of time” simply refers as a whole to any depreciation deduction. As the pertinent Regulation indicates, this phrase is an all-encompassing exclusion of any type of depreciation deduction that is sought to be applied to reduce the taxable income from such a life estate.
      Amounts paid as income to the holder of a life or terminable interest acquired by gift, bequest, or inheritance shall not be subject to any deduction for shrinkage [whether called by depreciation or any other name] in the value of such interest due to the lapse of time.
      Treas.Reg. § 1.273-1 (1958). This indicates that a depreciation deduction by definition is allowed but for § 273 whenever there is some shrinkage in value of the asset due to the lapse of time. Here the life estate itself is necessarily of limited duration and at the lapse of the beneficiary’s life, will obviously be of no further value to her or her estate. This is the very premise upon which any depreciation claim must be predicated. Were the asset in question not subject to some “shrinkage in value due to the lapse of time,” taxpayer would not have a depreciable asset and hence even had she purchased it no deduction for depreciation or amortization would be allowable.
      It is true that the legislative history of § 273 seems to indicate that Congress was at a minimum concerned with a problem distinct from that involved in this case. The particular problem mentioned in the legislative history was that of the holder of a life estate setting up his expected future payments as a corpus and then claiming a deduction for the exhaustion thereof due to the lapse of time. H.R.Rep.No.350, 67th Cong., 1st Sess. 12 (1921); S.Rep.No.275, 67th Cong., 1st Sess. 15 (1921); 1954 U.S. Code Cong. & Admin.News 4206, 4867. It has repeatedly been observed that the legislative history of this section is extremely sparse and unenlightening. Early v. Commissioner, 445 F.2d 166, 168 n. 3 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 100, 30 L.Ed.2d 96 (1971) (“The section is without helpful legislative history.”); Gist v. United States, 423 F.2d 1118, 1120 (9th Cir. 1970) aff’g 296 F.Supp. 526 (S.D.Cal.1969) (“The legislative history of § 273 and its antecedents is brief and unhelpful. No treasury regulations or revenue rulings provide definitive guidance. No case is precisely on point.”). It thus appears that Congress in floor and committee discussion may have simply mentioned one of its concerns in this area, fully intending to reach the question presented in this case as well. It is not necessary to the validity of any particular effect of a statutory provision that Congress refer to it in the committee reports or debates. The statute is to be applied in the first instance as written. And if Congress painted with too broad a brush in seeking to eradicate a particular problem, it is not for us to correct. We cannot ignore the clear language of the prohibition in § 273. It is also unquestioned that the section has been interpreted by the courts to reach the issue involved in this case and to preclude any depreciation deduction on a life estate acquired by gift, bequest or inheritance. E. g., Early v. Commissioner, 445 F.2d 166 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 100, 30 L.Ed.2d 96 (1971); Gist v. United States, 423 F.2d 1118 (9th Cir. 1970); see also 6 J. Mertens, Law of Federal Income Taxation § 36.62 (1968 rev.).
      While the legal fees clearly became part of taxpayer’s basis in the life estate in this case, she does not (and certainly cannot) claim depreciation deductions with respect to her total basis in the asset, using some substituted basis (i. e., a basis determined by reference to the basis of the property while in the hands of another), since this would, of course, be an admission that the interest was acquired by gift or inheritance. In spite of the fact that taxpayer claims that the life estate was acquired in a bona fide arm’s length purchase, she is not claiming a depreciation deduction with respect to her “cost” in the asset, i. e., the consideration supposedly transferred by her to the decedent. This is highly inconsistent. In essence she is attempting to claim a deduction for depreciation only with respect to a portion of her total basis. This she cannot do and it serves to underscore the distinction between this ease (where the life estate was acquired by gift or inheritance) and the cases involving a bona fide purchase of a life estate. In the latter case the legal fees become part of taxpayer’s cost basis and the entire basis is then the subject of depreciation over the useful life of the income producing asset. Cf. Early v. Commissioner, supra n. 6 (where taxpayer was at least consistent in claiming depreciation as to total cost basis plus legal fees).

      . Indeed Lyeth held that the recovery there was in reality an inheritance in the face of a state statute to the contrary. It does great violence to Lyeth to use it as mandating our deference to a superficial characterization when it in fact demanded that we pierce such veneers to discover the true nature of the claim.

      . In Lyeth itself the Court noted as a significant factor that, in accordance with local practice, the issues had been framed by the probate court for a jury trial. “It then became necessary for him [taxpayer] to satisfy the court that the issues were substantial. Issues are not to be framed unless it appears . . . that there is ‘a genuine question of fact supported by evidence of such a substantial nature as to afford ground for reasonable expectation of a result favorable to the party requesting the framing of issues.’ ” Lyeth v. Hoey, supra, 305 U.S. at 195, 59 S.Ct. at 159. There was then, this additional safeguard of the substance of taxpayer’s claims in Lyeth, not present here. Other courts have placed similar emphasis on the fact that the compromise agreement is made part of the probate proceedings. See Bailey v. Ratterre, 144 F.Supp. 449, 453 (N.D.N.Y.1956) (surveying cases) aff’d 243 F.2d 454 (2d Cir. 1957).

      . “It lias been said that before the doctrine of the Lyeth case can apply, the claim asserted in the will contest must have had some color of merit and the compromise must have resulted from something more than a naked threat.” 1 J. Mertens, Law of Federal Income Taxation § 718 (text accompanying n. 60.1) (1969 rev.); see also Hailey v. Ratterre, 144 F.Supp. 449 (N.D.N.Y.1956) aff’d 243 F.2d 454 (2d Cir. 1957).
      Conceivably of course, there could be no reasonable ground for dispute whatever. The fact that a contract action is settled obviously does not mean there was a valid contract nor even a colorable claim. Parties may settle actions in which both sides are completely mistaken as to the validity of the claim or even where both knew there is no real substance to the cause of action in order to avoid the time and expense of litigation or for other reasons.

      . The Tax Court’s statement that taxpayer’s interest “flowed from her standing as third-party beneficiary and not from her standing as donee . . . ” Marianne Crocker Elrick, 56 T.C. 903, 909 (1971), is in error on its face in its assumption that the terms “donee” and “third-party beneficiary” are incompatible. As developed infra, we feel that taxpayer’s legal status is best characterized as a donee beneficiary of a third party beneficiary contract.

      . This question generally arises under § 102 (where the taxpayer claims that amounts received were not income but rather a gift or inheritance and thus excludable from gross income) or § 2053 (where the decedent’s estate argues that the gross estate should be reduced by a deduction for “claims against the estate” — the tension arising over whether the amounts received were in settlement of a claim against the estate or simply an inheritance). Under both sections the test is the same and it must be the same for purposes of § 273 as well.
      In the cases which do find a bona fide purchase, invariably the taxpayer in question is a party to the contract, furnishing full and fair consideration. E. g., Cotnam v. Commissioner, 263 F.2d 119 (5th Cir. 1959); Cohen v. United States, 241 F.Supp. 740 (E.D.Mich.1965); Davies v. Commissioner, 23 T.C. 524 (1954); Rev.Rul. 67-375, 1967-2 Cum.Bull. 60. This element is absent here. Alternatively, even when the taxpayer is a contracting party, there may be found a lack of full value given in the “purchase” transaction and this is especially likely when the taxpayer is the natural and predictable beneficiary of the testator’s will.

      . “With the consent of petitioner’s mother, petitioner’s father revoked the trust agreement of November 1, 1937, on February 15, 1955. . . . Concurrently with this revocation agreement and as consideration for the consent of petitioner’s mother to it, petitioner’s father created a trust . also dated February 15, 1955, for the benefit of the petitioner.”
      Marianne Crocker Elrick, 56 T.C. 903, 904 (1971) (Findings of Fact); Stipulations of Fact, #9:
      “9. On February 15, 1955 Charles Crocker and Virginia B. Vroman entered into a written agreement revoking the trust created by Charles Crocker on November 1, 1937 for the benefit of Marianne Crocker Elrick, a married woman.”
      J.A. at 18.

      . “A donee beneficiary of a contract is a third party to whom the promised beneficial performance comes without cost to himself as a donation from the promisee.” 4 Cor-bin on Contracts § 782 (1951); see also 2 Williston on Contracts § 357 (3d ed. 1959); Restatement of Contracts § 133 (1932):
      § 133. Definition of Donee Beneficiary, Creditor Beneficiary, Incidental Beneficiary
      (1) Where performance of a promise in a contract will benefit a person other than the promisee, that person ¡s'?..
      (a) a donee beneficiary if it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary.

        See also Restatement (Second) of Contracts § 133(c) (Tent.Draft No. 4, 1968) :
      c. Gift promise. Where the promised performance is not paid for by the recipient, discharges no right that he has against anyone, and is apparently designed to benefit him, the promise is often referred to as a “gift promise.” The beneficiary of such a promise is often referred to as a “donee beneficiary”; he is an intended beneficiary under Subsection (l)(b). The contract need not provide that performance is to be rendered directly to the beneficiary; a gift may be made to the beneficiary, for example, by payment of his debt. Nor is any contract or communication with the beneficiary essential.

      . 4 Corbin on Contracts § 787 (1951); 2 Williston on Contracts § 361 (3d ed. 1959); Restatement of Contracts § 133 (1932):
      (1) Where the performance of a promise in a contract will benefit a person other than the promisee, that person is
      (b) a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view of the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary ....

      . Citing: Gist v. United States, 296 F.Supp. 526 (S.D.Cal.1969) aff’d 423 F.2d 1118 (9th Cir. 1970); Bell v. Harrison, 212 F.2d 253 (7th Cir. 1954); William N. Fry, Jr., 31 T.C. 522 (1958) aff’d 283 F.2d 869 (6th Cir. 1960).

      . Citing: (cf.) Commissioner v. Matheson, 82 F.2d 380 (5th Cir. 1936); Sherman Ewing v. Commissioner, 40 B.T.A. 912 (1939).

      . Under the circumstances we conclude that the exchange of stock for life estate was realistically a compromise of taxpayer’s disputed right to the stock and since they claimed the stock as donees they must be treated for federal income tax purposes as having acquired the life estate in that capacity. We need not, and do not, hold that Lyeth governs transactions such as this unless the right to that which is exchanged is beyond cavil — the dispute over the purported gift to these taxpayers was more than merely colorable. We hold only that where there exists a substantial controversy in which a taxpayer claims as a donee, what is received in settlement is received for tax purposes as a donee.
      Early v. Commissioner, supra, 445 F.2d at 170-171.
      The Early court distinguished the Gist case, supra note 15, as involving firmly fixed rights that were exchanged with the estate for the life interest — rights not present in Early, nor in this case. We agree with the Early court’s analysis of Gist:

      In Gist v. United States, supra, a widow in a community property jurisdiction was put to an election by her husband’s will. If she took against the will she retained fee simple title to her share in the community and received nothing from her husband. If she elected to take under the will she received a life interest in the income from her husband’s share of the community but acceded to her husband’s disposition of the remainder interest in her share. In short, she exchanged the remainder interest in her share of the community for a life interest in her husband’s share. It was held that the widow acquired the life interest in the income from her husband’s share by purchase and that § 273 did nob prohibit amortization of the commuted value of that interest. However CHst, by reference to such decisions as C. I. R. v. Siegel, 250 F.2d 339, 345-347 (9th Cir. 1957), relied upon the undisputed and vested character of the wife’s community interest, which was exchanged for the life interest. 296 F.Supp. at 528. Similarly, Sherman Ewing, supra, and C. I. R. v. Matheson, supra, which hold that the discharge of a monetary legacy by the transfer of securities constitutes a sale or exchange of the securities, involve legatees whose right to take was not in dispute.
      445 F.2d at 170. The court concluded that “taxpayers here had no such elearcut right,” id., and we find those words equally applicable to our case.

      . It is important to note also that unlike Early, taxpayer in this case was the natural object of a gift from her mother, if not a testamentary disposition from her father as well. In finding against the taxpayers in Early, the court observed that a factor in favor of taxpayers was the fact that they were not in the position of heirs, having no “inchoate claim” against the estate, but rather were asserting their rights to full ownership to stock which was in their possession. Id. at 169. That “inchoate claim” is present here.

      . As pointed out supra, taxpayer’s actions also bore many of the incidents of a will contest, and since taxpayer’s contentions must fail even under her version of the nature of the compromise, we are not to be understood as accepting for any purposes beyond those of mere debate the contract-claim characterization of tliis settlement agreement.


author: LEVENTHAL, Circuit Judge:

text:
    UNITED STATES of America v. Terrence McKINLEY a/k/a Terrance McKinley, Appellant. UNITED STATES of America v. Raymond A. WASHINGTON, Appellant.
    Nos. 71-1861, 72-1143, 71-1862 and 71-1987.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 12, 1973.
    Decided Sept. 10, 1973.

      James B. Blinkoff, Washington, D. C. (appointed by this Court), for appellants.
    David M. Bullock, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and JAMESON, Senior District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   LEVENTHAL, Circuit Judge:

Each of the appellants was convicted on July 30, 1971, of three counts of armed robbery and three counts of assault with a deadly weapon, and given concurrent sentences of substantial prison terms.

1. We find no merit in appellants’ contention that the admission into evidence of a sawed-off shotgun seized at the time of arrest was error. Sometimes introduction of certain types of evidence is too prejudicial to the defendant to be allowable. Here, however, there was evidence as to the resemblance between the exhibit, and the gun used at the scene of the offense for which appellants were convicted. The trial judge commented that the gun could not be introduced as the gun used in the crime, and that this would be for the jury to determine. We think there was enough probative purpose to sustain the ruling of the trial court.

2. Appellants challenge a pre-indictment photographic identification. Under United States v. Ash, no Sixth Amendment right to counsel was violated. Nor can we say, on the record before us, that the District Court erred in holding that the technique used was not so “impermissibly suggestive” as to depart from the standards of Simmons v. United States, or otherwise violate due process.

3.. A more difficult question is raised by appellants’ contention that the admission into evidence of the court-ordered lineup forms which instructed each defendant not “to alter his or their facial or bodily appearance prior to the time of the lineup” was prejudicial to the defendants and irrelevant because the gov-eminent presented no evidence to show that the defendants actually received notice of the order at any time.

Obviously, the testimony that defendants changed their appearance was admissible. It provided the basis for a jury inference that the reason that neither Miss Rogers nor Miss Smith could identify the defendants in court was that they had altered their appearance.

Another inference available from a change in appearance by someone who has been called to appear in a lineup is, simply, that the change reflects an awareness of guilt and fear of identification. People v. Slutts, 259 Cal.App.2d 886, 66 Cal.Rptr. 862 (1968). Certainly the fact that appellants had been ordered to appear in a lineup was patently relevant, and this was part of the information in the court order. In one sense, the provision instructing the defendant not to change his appearance can be taken as codifying what one would reasonably suppose implicit in the order to appear in a lineup. It does raise problems, however, in that the jury might reason that since the defendant has violated the law (violating a court order in alteration of appearance) in one respect he is likely to have violated the law defining the offense charged in the indictment. This is an inference the law does not lightly permit, except as to certain defined categories. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). On the other hand, the court order was a means of indicating that the defendant had been expressly advised of an instruction (not to change appearance) which would otherwise have to remain in the domain of inference or speculation as to the person’s understanding.

Under the settled presumption of regularity “it is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed,” and this presumption attaches to judges, courts and their officers. This presumption, like the presumption attaching to other official acts, will only be overcome by clear evidence to the contrary. United States v. Chemical Foundation, 272 U.S. 1, 14, 47 S.Ct. 1, 71 L.Ed. 131 (1926). We think the prosecutor was entitled to proceed on the presumption that court orders are in fact served on the persons governed, without adducing proof of such service, in the absence of testimony that the order was not served or that the defendants had not been informed of the provisions of the order.

In view of the possibility that a better-grounded objection might be made in another ease, we caution magistrates and trial judges engaged in issuing Adams lineup orders that it would be appropriate to review the procedures for service, and to assure, by forms and instructions, that defense counsel are informed of their obligation to advise their clients of the pertinent provisions of the order.

4. Appellant McKinley argues that the trial court’s basis for declining to sentence him under the Youth Corrections Act is insufficient in law. The approach he urges is similar to that followed in the panel opinion in Tillman v. United States, No. 71-1352 issued June 6, 1973. By en banc order dated August 10, 1973 that Tillman opinion has been vacated, and Tillman has been set for consideration en banc along with U. S. v. Harris, No. 71-1826. In the circumstances, we think it appropriate to defer our determination of this contention by appellant McKinley pending the en banc consideration.

* -X* -X-

The convictions for assault with a dangerous weapon, 22 D.C.Code § 502, must be reversed since that is a lesser included offense, within robbery, while armed, 22 D.C.Code § 2901, § 3202 (Supp. V, 1972).

As to appellant Washington, we vacate the assault sentences, affirm the conviction and the sentence for each of the robbery while armed offenses, which are of greater length than, and concurrent with, the assault sentences we vacate. As to appellant McKinley, we affirm the convictions for robbery while armed, but defer remand to the District Court, for entry of new sentences, pending en banc consideration in other pending cases and further order of this court.

So ordered.

      . 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

      . 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

      . 29 Am.Jur.2d, Evidence § 170 (1967).

      . This is a reference to this court’s decision in United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969), approved in Williams v. United States, 136 U.S.App.D.C. 158, 161, 419 F.2d 740, 743 (en banc 1969).

      . United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973).


text:
    UNITED STATES of America v. Sherman MARSHALL, Appellant.
    No. 71-1801.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 15, 1972.
    Decided Sept. 12, 1973.

      Joseph Onek, Washington, D. C. (appointed by this Court), for appellant.
    Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Warren L. Miller, Asst. U. S. Attys., were on the brief, for appellee. Thomas A. Flannery, U. S. Atty., at the time the record was filed also entered an appearance for appellee.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Appellant was convicted on January 25, 1971, of violations of the narcotics statutes that were in effect prior to the Comprehensive Drug Abuse and Control Act of 1970 — namely, 21 U.S.C. § 174; 26 U.S.C. § 4704(a); 26 U.S.C. § 4705(a). The counts related to transfers of narcotics on February 19, 1971 and March 31, 1970. Appellant was sent for evaluation of possible sentencing under the Narcotic Addict Rehabilitation Act (NARA), but the pertinent institutions recommended against NARA disposition. On March 20, 1972, he was sentenced to a mandatory five year term for the § 174 and § 4705(a) counts, and concurrently to a term of 20 months to five years on the § 4704(a) counts.

We have no hesitancy in affirming the conviction. The claim of error in the failure of the trial judge to consider the possibility of probation has been foreclosed by Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973).

However, the present case falls within the boundaries of our consideration of NARA sentencing in United States v. Moore, 158 U.S.App.D.C. _, 486 F.2d 1139 (en banc, 1973). When the facility at Danbury, Connecticut, recommended against NARA disposition, the trial judge sent appellant for evaluation at the facility at Milan, Michigan, which also recommended against NARA disposition. At the sentencing hearing the trial judge said he had gone over the Milan report and had sought more information, stating:

They said that Mr. Marshall was disposed to help other people in the program, but that he wouldn’t help himself. Now, I don’t know what they mean by that frankly, and I want to find out, because cooperating with the program to me means helping other people. (S. Tr. 6).

After commenting that appellant had served honorably in Vietnam, impressed the judge with his attitude, and helped other participants in the NARA program, the judge noted the need for exploring the facts underlying the adverse Milan recommendation. He said (S. Tr. 15):

I can’t see my way clear on the information that I have before me at the present time to challenge their judgment as counsel suggests. That is why my impulse this morning was to ask Mr. Howard to call Milan, Michigan and find out on the basis of what information they draw that conclusion. All of this is troubled by conclusions which are not based on underlying facts. That is why when we are called upon to try a case without a jury, we not only have to draw conclusions, but we have to find facts.

Mr. Howard, the probation officer, commented (S. Tr. 16):

They are saying, your Honor, that while he extends a hand to other people, he won’t take a strong look at himself. Now, whether they have got enough actually to base it on, I am not so sure.

However, the court was concerned with the basis for the Milan conclusion, stating (S. Tr. 17):

I would think that you are the kind of fellow that could help them with other people less experienced ánd less strong willed than you are. Some how or other your expression of your own will to get out of the shackles of heroin has not impressed them or some of them.

The judge recessed the hearing in order to obtain further information. Mr. Howard telephoned Douglas Lansing, in charge of the Milan facility, and reported to the judge who said (S. Tr. 19):

I really don’t know much more about the case than I knew earlier. I regret that we are down to the point where there seems to be nothing more I can do about your ease ....

In this case, as in Moore, appeal was noted and appellate counsel had already been appointed prior to the disposition order. (S. Tr. 19). In this case, as in Moore, we think the interest of justice warrants a remand to permit further trial court consideration of the NARA issue, assuming appellant continues his interest in a NARA treatment disposition. Our ruling is in furtherance, and not in derogation, of the approach manifested by the conscientious trial judge on this matter. As was pointed out in Moore, a remand would permit a “current assessment” concerning possibilities under Title II of NARA, 18 U.S.C. § 4251 ff — of the Surgeon General’s current administration of Title II; of programs at other facilities, either operated by the Public Health Service or to which that service has access; of integrating methadone maintenance and/or transition into the program formerly dominant under NARA. Such a current reassessment of NARA possibilities is particularly appropriate for this case, where the trial judge was perplexed and even uneasy concerning the adverse NARA conclusion, and voiced a plain concern, essentially unrelieved notwithstanding his further inquiry, as to the adequacy of the basis underlying the administrative conclusion negating the likelihood of rehabilitation through treatment. On remand, the District Judge will not be concluded by the prior adverse NARA recommendation. See Moore, supra, at 1204 of 486 F.2d.

We turn to the issue raised by appellant as to the possibility of parole, since the District Judge may have to give this consideration in his action on remand. There is no problem of exhaustion of administrative remedies since, as is set forth in Bradley, supra, at footnote 5, the Board of Parole now considers persons convicted under the pre-1970 laws governing narcotics offense ineligible for parole — subject only to an exception for offenders sentenced in the Seventh and Ninth Circuits, which have outstanding rulings that such offenders are eligible for parole. To guide the District Court so that on remand it may have widest possible awareness of alternatives, now and in the future, we rule that appellant is correct in contending that 26 U.S.C. § 7237(d) does not make him ineligible for parole if the five-year sentence, without NARA disposition, is retained. While this precise issue was expressly left open in Bradley, the analysis in the body of that opinion, considered in the context of the Comprehensive Drug Abuse and Prevention and Control Act of 1970, seems to this court to establish quite clearly that the restrictions on parole in effect prior to the passage of the 1970 statute are now inoperative. The provisions of the Price-Daniel Act of 1956, P.L. 84-728, formerly codified at 26 U.S.C. § 7237(d), which prohibited parole for narcotics violations, was repealed, effective May 1, 1971, by Title III, § 1101(b)(4)(A), of the 1970 enactment. The impact of such repeal is qualified only by the savings provision, § 1103(a) of the 1970 law, which provided that “prosecutions for any violation of law prior to the [May 1, 1971] effective date . . . shall not be affected ... or abated” by such repeal. The Bradley opinion’s analysis makes it clear that the granting of a parole under 18 U.S.C. § 4202 occurs after prosecution is terminated, and hence neither “abates” nor “affects” the already-terminated prosecution. Accordingly, there is no basis, under the language of the savings provision of § 1103(a), for claiming an exception to the extinction of the prohibition of parole.

The release of a parolee from the prison does not terminate his post-sentence custody. The law specifically provides that he will “remain, while on parole, in the legal custody and. under the control of the Attorney General, until the expiration of the maximum term,” 18 U.S.C. § 4203(a). Parole is a form of custody, Jones v. Cunningham, 371 U.S. 236, 242-243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and this control and custody sharply distinguishes a parole from a suspension of sentence, see Jenkins v. Madigan, 211 F.2d 904, 906 (7th Cir. 1954), cert. denied, 348 U.S. 842, 75 S.Ct. 63, 99 L.Ed. 664 (1954). Under 18 U.S.C. § 4203(a) the Parole Board “has wide authority to set conditions” on the freedom of the parolee. Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971). The parolees allowed to leave prison early are subjected to conditions “to accomplish the purpose of parole,” i. e., “to help individuals reintegrate into society,” that establish re-strictions far beyond those imposed by law on citizens generally. Morrissey v. Brewer, 408 U.S. 471, 477-478, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972). The reality of the custody and control status of the parolee is not diminished by the equally important reality, recognized in Morrissey, that permission to be outside prison walls has such significant values that it cannot be terminated without an appropriate informal hearing.

The 1970 Act crystallizes the Congressional approach towards rehabilitation of narcotic addicts, which surfaced in 1966 with NARA, and had been carried forward in a number of statutes widening the rehabilitation possibilities available to all concerned — to those merely charged with crime, to those convicted and awaiting sentence, and to those already sentenced. The statute marks recognition of the need for integration of law enforcement with treatment and rehabilitation programs reflecting a “strong consensus” that these are not only interrelated but can have enhancing effects on each other. The broad authority of the Parole Board to set conditions to avoid relapse of former narcotic addicts, and set appropriate conditions on the parolee includes authority e. g., to require adherence to such regimen and surveillance as may be appropriate in the light of rehabilitative treatment and programs available in the community and its treatment centers. These considerations of policy powerfully reinforce the conclusion provided by the text of the law and the Bradley opinion, that the 1970 law removes, as of the effective date of May 1, 1971, the restraint that prohibited granting of parole under 18 U.S.C. § 4202 to persons convicted and sentenced under earlier Federal laws governing narcotic violations.

Congress’s action in opening the possibility of parole for narcotics offenders has been implemented and complemented by Bureau of Prisons programs for inmates with a history of serious drug abuse, who comprise nearly a third of all inmates committed to Federal institutions. The Bureau’s 12 intensive institutional treatment programs include five established under Title II of NARA and seven, opened in Fiscal Year 1972, for other drug-dependent offenders. Aftercare services, originally limited to offenders committed under NARA, have been extended to all Bureau drug treatment participants. These aftercare services, taking into account the special recidivism problems of the addict, and providing continued supervision and support after his release, are available through Bureau contracts with 72 public and private mental health agencies across the nation.

The conviction is affirmed. As to post-conviction disposition, the case is remanded for further consideration of post-conviction alternatives.

So ordered.

      . Appellant claims that the trial judge erred in excluding his testimony that he had an identical twin and that others could not distinguish between the two. It appears he did testify that he had an “identical twin.” Also Officer Wormley testified that he was familiar with appellant’s family, had seen appellant on prior occasions, knew appellant to be Sherman, and although he and his twin brother, Herman, looked alike, this police officer could distinguish them. On advice of counsel, the brother (in confinement in Maryland) refused to testify. Without ruling on technical questions, we see no substantial prejudice in terms of what appellant was able to present to the jury. If there was more to be brought out on this the trial court was quite right in stating that testimony to rebut the officer’s account, and to indicate that these two men could not be distinguished, would have to come from persons other than the defendant.
      Appellant complains of prejudicial error in that the officer said that he had heard the transferer of narcotics referred to as “Sherman” on three occasions, whereas in fact the evidence only established his having heard the reference to Marshall on one occasion. The trial court instructed the jury that their recollection should control. We see no substantial prejudice.

      . United States v. McGarr, 461 F.2d 1 (C.A.7 1972); United States v. Stephens, 449 F.2d 103 (C.A.9, 1971). These rulings were not preceded by any application to the Board of Parole.

      . P.L. 91-513, 84 Stat. 1236.

      . The exact holding, that a “prosecution” includes not only the proceeding for determination of guilt but also the sentence, was accompanied with statements that “a prosecution terminates only when sentence is imposed.” In footnote 6, the Bradley opinion flatly states:
      The decision to grant parole under [18 U.S.C.] § 4202 lies with the Board of Parole, not with the District Judge, and must he made long after sentence has been entered and the prosecution terminated. (Emphasis added.)

      . United States v. Moore, supra, at 1159, 1170-1174, 1202-1205 of 486 F.2d (opinion filed by Judge Leventhal).

      . Id. at p. 1186, quoting S.Rep.No.92-486, 92 Cong. 1st Sess. 5 (1971).

      . Bureau of Prisons Annual Report, 1972, pp. 14-15.