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

text:
    UNITED STATES of America v. Thomas MELTON, Jr., Appellant.
    No. 72-1357.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 23, 1973.
    Decided Sept. 26, 1973.
    As Amended on Rehearing and/or Suggestion for Rehearing En Banc Jan. 11, 1974.

      Paul M. Tsehirhart, Washington, D. C. (appointed by this Court), for appellant.
    Emmett B. Lewis, Atty., Dept. of Justice of the bar of the Supreme Court of Ohio, pro hac vice, by special leave of Court, with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Philip L. Cohan, Asst. U. S. Attys., at the time the brief was filed, were'on the brief, for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   BAZELON, Chief Judge:

Appellant was tried before a jury and convicted of first degree burglary. At trial, the following story emerged. At about 10 p. m. on January 29, 1971, Mrs. Vessels was asleep on the second floor of her home, when she was awakened by a loud noise from downstairs. She went to the foot of the stairs where she could clearly see that the noise had been caused by someone knocking over several pieces of plywood, which had been stacked against a door opening inward from an unheated sunroom. When she went outside, she discovered that a screen door to the kitchen had been cut but the door itself had not been opened and that a window leading into the sun-room had been opened and left ajar.

After surveying the outside of the house, Mrs. Vessels went to her next door neighbor’s home and called the police. A patrol car responded in about five minutes. After Mrs. Vessels told the policemen what had happened, they went to her house to investigate. Coming to the partially opened sunroom door, they immediately saw appellant lying on the floor. They arrested and searched him without incident; no weapons, burglary tools or stolen goods were found. Nothing of value in the house had been moved so as to indicate an attempt to steal.

I.

Appellant was charged with first degree burglary—the unlawful breaking and entering into the dwelling of another while a person was present therein with the intent to commit a criminal offense —in this case, larceny. At the close of the government’s case, defense counsel moved for a directed verdict of acquittal for a failure of proof on the question of ultimate criminal intent. The trial judge agreed that there had been no evidence introduced demonstrating the intent to commit a crime after entry.

I find that he entered and that there was an unlawful entry, no question about it, but I don’t find any evidence here of intent to steal; unlawful entry just isn’t [inconsistent] with intending to enter for some other purpose.

Nonetheless, after reviewing points and authorities for both sides, the trial judge concluded that mere unlawful entry into another’s house supports , an inference that the interloper was there to steal. Accordingly, he denied the defense motion for acquittal and submitted the charge of burglary to the jury. On this appeal, we concern ourselves only with the discrete legal issue of whether that ruling was premised on an erroneous interpretation of law.

II.

The trial judge erred in submitting a burglary charge to the jury where he found a complete absence of any evidence of an intent to commit a crime after the unlawful entry. By doing so, the trial judge invited the jury “to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy,” rather than any factual predicate, why appellant entered the dwelling.

In addition, the trial court’s ruling conflicts with the statutory scheme of property offenses. Unlawful entry carries a maximum penalty of six months’ imprisonment. First degree burglary carries a penalty of not less than five or more than thirty years.

The element that distinguishes burglary from unlawful entry is the intent to commit a crime once unlawful entry has been accomplished. To allow proof of unlawful entry, ipso facto, to support a burglary charge is, in effect, to increase sixty-fold the statutory penalty for unlawful entry.

III.

The trial judge relied on three cases to sustain his ruling on the motion for acquittal—Cady v. United States, 54 App.D.C. 10, 293 F. 829 (1923); Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742 (1958), cert. denied, 359 U.S. 1002, 79 S.Ct. 1142, 3 L.Ed.2d 1032 (1959); and United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971). These decisions do not control the case before us. In Washington, there was evidence that, after gaining entry, the defendant attacked and assaulted two of the occupants, as an indication of his ultimate criminal intent. In Cady, there was evidence of flight. More importantly, Cady and Washington must be construed in light of our subsequent holding in United States v. Fox, 140 U.S.App.D.C. 129, 433 F.2d 1235 (1970). There we affirmed a burglary conviction of a defendant who was apprehended carrying cigarettes out of a closed supermarket, while it was being looted. The court pointedly observed:

Standing alone, unauthorized presence in another’s premises hardly supports an inference of entry with a criminal purpose, but when aided by other circumstances it might very well. 433 F.2d at 1237.

More recently the court referred to this issue in dicta in Thomas, which held that where the intent for the ultimate crime was indefinite, an indictment for burglary might allege an intent to steal. Since, however, the indictment returned against Thomas did not specify an intent to commit any criminal offense his conviction was reversed. The court noted, in language clearly unnecessary to its holding, that the circumstances of a defendant’s entry, if unexplained, “may furnish the basis for an inference that the entry was made with the intent to commit larceny.” 444 F.2d at 924. The court’s rationale was articulated as follows:

The usual object [of such an entry] is theft, and this is the inference ordinarily to be drawn, in the absence of explanation, from breaking and entering at night, accompanied by flight upon discovery, even though nothing has been taken, 444 F.2d at 924 quoting State v. Woodruff, 208 Iowa 236, 225 N.W. 254, 255 (1929). (emphasis supplied).

In each of the cases on which the trial judge relied in making his ruling, some circumstantial evidence of the requisite intent to commit a crime on the premises was either shown or noted—flight upon discovery, carrying or trying to conceal stolen goods, an assault upon a resident. Here, as the trial judge noted, there does not appear to be any circumstantial evidence of an ulterior criminal purpose other than the unlawful entry itself. Appellant did not attack Mrs. Vessels after she had discovered his presence. Despite a readily accessible means of escape provided by the nearby opened window, appellant did not escape during the several minutes between his discovery and his apprehension. Appellant had no stolen goods, weapons, or burglary tools with him when apprehended. He could not have been concealed, since the arresting officers saw him immediately upon peering through the door intd the sunroom, nor did he resist arrest.

Nor should the fact that the unlawful entry occurred in the nighttime support the inference of intent to steal. An element of common law burglary was that it occurred at night; nighttime entry was seen as more likely to pose a threat to occupants. Congress abolished the “nighttime” requirement and focused instead on the specific consideration—the danger to occupants of a home. First degree burglary requires entrance into a dwelling while someone is present; second degree burglary, to which lesser penalties attach, requires neither that the building be a dwelling nor that it be occupied. The “common law” nighttime element, clearly abandoned by Congress, should not be resurrected by judicial fiat to make an act proscribed by Congress as a breaking and entering into a first degree burglary. It is true that some courts would infer an intent to steal from an unexplained nighttime intrusion. Some states provide by statute for a presumption of burglarious intent to arise from such unexplained conduct. Congress has not done so. Rather, it enacted a comprehensive scheme of property offenses which should not be confounded by us.

IV.

Appellant’s burglary conviction is therefore reversed. Although the trier of fact necessarily found the facts required for conviction of the lesser included offense of unlawful entry, it would be inappropriate to remand this case to allow the trial judge to enter a conviction on that charge. The cases in which we adopted that procedure have usually involved a wrongful refusal to instruct on the lesser included offense, while here defense counsel specifically eschewed such an instruction. The government has ample opportunity to have appellant’s guilt of unlawful entry decided by the jury. It chose not to do so and to seek a conviction only on the greater offense. It is bound by that choice. The judgment below is

Reversed.

MacKINNON, Circuit Judge,

dissenting:

In an unprecedented opinion in the criminal law of the United States reversing this conviction for first degree burglary without even a remand, the majority rests its reversal on what it asserts to be an absence of “any evidence of an intent to commit a crime after the unlawful entry.” Quite to the contrary, it must be concluded under well settled principles of criminal law in this jurisdiction and elsewhere that the record contains ample evidence to support the trial judge’s decision to submit the issue of intent to steal to the jury. Hence the following dissent.

Stating the facts in the light most favorable to the Government as should be done, the evidence indicates that around 10 P.M. on January 29, 1971, appellant broke into Mrs. Vessels’ two-story house by prying open and breaking the lock to the window of the sun room. Appellant had first attempted to gain entrance through the back door where he cut open the screen door, but had failed to penetrate the locked door. The sun room was used as an unheated storage room by Mrs. Vessels, and while in this room appellant next tried to gain further entrance into the interior of the house through some French doors. However, as appellant opened these French doors, he knocked over “nine pieces of half-inch thick 2x4 plywood” which had been “stacked” against the doors. This noise awakened Mrs. Vesseis, who, after noticing the disturbed plywood, the open window and the screen-cut on the back door, quickly had called the police from her neighbor’s house. Two policemen arrived within two to five minutes. They went into the house, and saw appellant “on the floor by the window,” i. e., in the sun room next to the open window. After commanding him “don’t move,” the officers “walked over” to him, “he rose up” and they arrested him.

The majority opinion states, inter alia, “Nothing of value in the house had been moved so as to indicate an attempt to steal." (Emphasis added.) This statement is erroneous as the transcript discloses :

Q. Now when you [Mrs. Vessels] came down and after you went back in the house, when the police came, did you find anything else [other than the plywood] disturbed in the house?
A. Yes, there were things disturbed in the sunroom.
Q. What?
A. Well, there were things which were broken in there because there were things stored there. There was a clock which was broken, a lamp, some paintings in frames, which were there, and there were some pieces of gill [sic] which had been bent because they were on the floor. (Emphasis added.)

The clock, the lamp and the pictures were clearly “items of value,” and there is no evidentiary support in the record for the gratuitous conclusion of the majority opinion that these items of value had not “been moved so as to indicate an attempt to steal.” There was no specific testimony as to why the goods had been moved, but they had been disturbed by the appellant and the conclusion as to what such acts indicated as to appellant’s intent was within the province of the jury. The jury would have been perfectly justified in concluding that such acts by appellant indicated an “attempt” or more importantly, an intent “to steal” on his part; and on this appeal the record must be read in the light most favorable to the jury’s verdict. Thus, the inference in this respect which is drawn by the majority opinion is impermissible.

The majority opinion also asserts that appellant did not “resist arrest” but the transcript is silent or equivocal on this point. Appellant’s trial counsel attempted to suggest in his cross examination of Mrs. Vessels that the “items of value” in the sun room were “destroyed in the arrest of the Defendant,” which suggests that he resisted arrest. The suggestion was not denied by Mrs. Vessels, but neither was it admitted. His counsel in his opening statement also stated that when appellant was arrested, “he started to struggle.” The statement in the majority opinion that appellant did not “resist arrest” thus finds no support in the evidence, and what slight indication there is in the evidence indicates that he did resist arrest and defense counsel so contended in final argument. The police officer was not interrogated on the subject. The record thus would permit the jury to have inferred that appellant had disturbed these items while searching for something to steal before his arrest or that he did resist arrest. Either finding would support a conclusion under applicable burglary law that appellant had an intent to steal.

At this point in the opinion it is appropriate to set forth the language of the indictment, to wit:

On or about January 29, 1971, within the District of Columbia, Thomas Melton, Jr., also known as Thomas N. Melton, entered the dwelling of Blanche T. Vessels, while Blanche T. Vessels was inside the dwelling with intent to steal property of another.

This charge was laid pursuant to D.C. Code § 22-1801 (a). As to the additional facts which support a finding that appellant entered the house with intent to steal, there are a number of facts here from which the jury could infer that appellant entered the house with an intent to steal, and thus place the jury verdict beyond one based on conjecture or speculation.

First, and most important, is the fact that the entry was made in the nighttime. The law is clear in this circuit that a jury may infer an intent to steal from a breaking and entering of an occupied dwelling place in the nighttime, where the defendant can offer no other explanation for his presence. Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742, cert. denied, 359 U.S. 1002 (1959); Cady v. United States, 54 App.D.C. 10, 293 F. 829 (1923). This is not a required inference which the jury must make when there is a breaking and entering in the nighttime, but it is almost universally held that the jury may draw this inference based solely upon such an entry in the nighttime, in the absence of evidence suggesting another explanation for the unlawful entry. Gibson v. State, 49 Ala.App. 18, 268 So.2d 49 (1972); People v. King, 2 Ill.App.3d 870, 275 N.E.2d 918 (1971); Garcia v. People, 172 Colo. 329, 473 P.2d 169 (1970); Dixon v. State, 240 So.2d 289 (Miss.1970); State v. Wills, 107 N.H. 107, 218 A.2d 47 (1966); People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 864 (1963); Behel v. State, 40 Ala.App. 689, 122 So.2d 537 (1960); Garrett v. State, 350 P.2d 983 (Okl.Cr.1960); Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524 (1958); State v. Tellay, 7 Utah 2d 308, 324 P.2d 490 (1958); State v. Gatewood, 169 Kan. 679, 221 P.2d 392 (1950); State v. Woodruff, 208 Iowa, 236, 225 N.W. 254 (1929) ; State v. Fox, 80 Iowa 312, 45 N.W. 874 (1890); State v. Maxwell, 42 Iowa 208 (1875). And where there is additional evidence tending to show intent to steal, as there is here, it is universally recognized that forcible entry in the nighttime is strong circumstantial evidence indicating the entrant had such an intent. Haynes v. State, 49 Ala.App. 16, 268 So.2d 47 (1972); State v. Redmond, 14 N.C.App. 585, 188 S.E.2d 725 (1972); Graham v. State, 487 S.W.2d 359 (Tex.Cr.App. 1972); Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972); State v. Barclay, 54 Wis.2d 651, 196 N.W.2d 745 (1972); People v. Rossi, 112 Ill.App.2d 208, 250 N.E.2d 528 (1969); Strait v. State, 41 Wis.2d 552, 164 N.W.2d 505 (1969); State v. Allnutt, 261 Iowa 1083, 156 N.W.2d 266 (1968); People v. Walters, 249 Cal.App. 547, 57 Cal.Rptr. 484 (1967); People v. Lambo, 8 Mich.App. 320, 154 N.W.2d 583 (1967); Briones v. State, 363 S.W.2d 466 (Tex.Cr.App. 1963); State v. Hopkins, 11 Utah 2d 363, 359 P.2d 486 (1961); Commonwealth v. Eppich, 342 Mass. 487, 174 N.E.2d 31 (1961); Commonwealth v. Ronchetti, 333 Mass. 78, 128 N.E.2d 334 (1955); Ex. parte Seyfried, 74 Idaho 467, 264 P.2d 685 (1953); Nichols v. State, 207 Miss. 291, 42 So.2d 201 (1949); Drennan v. State, 69 Okl.Cr. 348, 102 P.2d 952 (1940); Vickery v. State, 62 Tex.Cr.R. 311, 137 S.W. 687 (1911); Moseley v. State, 92 Miss. 250, 45 So. 833 (1908); People v. Noon, 1 Cal.App. 44, 81 P. 746 (1905); State v. Worthen, 111 Iowa 267, 82 N.W. 910 (1900); Mullins v. State, 35 Tex.Cr.R. 149, 32 S.W. 691 (1895); Alexander v. State, 31 Tex.Cr.R. 359, 20 S.W. 756 (1892); Steadman v. State, 81 Ga. 736, 8 S.E. 420 (1888); State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887); State v. Teeter, 69 Iowa 717, 27 N.W. 485 (1886); Commonwealth v. Shedd, 140 Mass. 451, 5 N.E. 254 (1886); People v. Morton, 4 Utah 407, 11 P. 512 (1886); People v. Soto, 53 Cal. 415 (1879); Woodward v. State, 54 Ga. 106 (1874); Rex v. Brice, 168 Eng.Rep. 892 (1821).

(a) AVhoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. Burglary in the first degree shall be punished by imprisonment for not less than five years nor more than thirty years.

The majority opinion at page 48 asserts that the “ ‘common law’ nighttime element [was] abandoned by Congress.” This is incorrect, the “nighttime” provision was retained and additional features were added thereto which broadened the crime (see n.19 for the statute). In attempting to make its point in this respect the majority opinion gets mixed up over what is involved and completely misses the mark, i. e., that we are not relying upon the provisions of a statute but upon an evidentiary inference that, while it may have been recognized at common law, really rests on common sense and is just as valid today as heretofore. In fact, the long line of unbroken authorities, quoted above, indicate it is the applicable law in the United States, including this court, in all decisions except the preceding majority opinion. The cases cited above are based on the common sense rationale that a person who breaks into and enters a dwelling or building in the nighttime, if no other motive is apparent, generally has the purpose of stealing something. Were the law otherwise, every unsuccessful nighttime burglar, caught before he could steal anything, would be guilty only of unlawful entry, but as the above cited cases show, the law has universally been held to be to the contrary for more than a century. Certainly there are situations where a person may break into a dwelling or building in the nighttime with an innocent intent. However, the cases cited above recognize such an innocent intent might occur, and they hold only that where a defendant completely fails to explain his presence or there is a lack of another explanation, then the jury may infer an intent to steal.

Despite this large body of case law, some of which is in this circuit, the majority opinion suggests that there is no controlling authority contrary to the position it takes. It is submitted that Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742, cert. denied, 359 U.S. 1002, 79 S.Ct. 1142, 3 L.Ed.2d 1032 (1959) and Cady v. United States, 54 App.D.C. 10, 293 F. 829 (1923) directly control this factual situation and require affirmance. In Cady a witness heard a noise coming from a neighbor’s garage about 7 A.M. and walked over to investigate. He found the padlock from the garage door on the ground and saw three men inside. When the three men saw the witness “they came out of the garage without closing the doors behind them. Witness asked them if they were going to close the doors. They made no response, but got into a waiting automobile and drove away.” There was no evidence that anything was missing and the witness’s account was the only evidence. The court found that this constituted sufficient evidence to submit the issue of intent to steal to the jury. The court quoted from three state cases which permitted an inference of intent to steal from the unexplained breaking and entrance into a dwelling at night. In one of these cases the defendant had made contradictory statements about his name and address to the police. The court in Cady stated, “To be sure we have no contradictory statements here, but the failure of the defendants in the circumstances to give any reason for their presence is just as significant.”

The majority opinion finds that Cady does “not control” because “there was evidence of flight”—implying that the Cady court relied on the fact that the defendants ran away when they were caught in the act. Yet there is no evidence of “flight” there, but only that the defendants “came out of the garage without closing' the doors” and left without responding to the witness’s question. There is just no evidence that the court there characterized this exit as “flight” from which an incriminatory intent could be inferred. Rather, the court seems to have valued the fact of the egress only because the defendants failed to explain their presence. In short, Cady must be read as holding that when there is a breaking and entering of a building in the early morning such entry may support an inference by the jury that the entrant possessed an intent to steal, where no counter-explanation is offered.

In Washington the defendant was convicted of assault and of housebreaking with intent to steal. The defendant broke into a house around midnight by forcing open a kitchen window. While in the house, defendant went into a girl’s bedroom where the child was asleep. She awoke, screamed, and was hit on the head by defendant. Her grandfather was also awakened and he struck defendant with a cane as he fled. With respect to the sufficiency of the evidence to permit the jury to infer an intent to steal, the court said:

In the circumstances of this case intent need not be shown by any specific acts or conduct; the unexplained presence of appellant in the darkened house near midnight, access having been by force and stealth through a window, is ample without more to allow an inference that he was there to steal. See Cady v. United States, 1923, 54 App.D.C. 10, 293 F. 829.

105 U.S.App.D.C. at 61, 263 F.2d at 745 (emphasis added). The majority opinion finds that Washington does “not control” because it asserts “there was evidence [in Washington} that, after gaining entry, the defendant attacked and assaulted [one] of the occupants, as an indication of his ultimate criminal intent.” Again it is submitted that such grounds for distinguishing this case are unsubstantial and without foundation. Granted that the defendant in Washington did commit an assault after entry, yet the court there makes it eminently clear that the facts supported the jury’s conclusion that the entry was made with an intent to steal, and not with an intent to commit another crime—viz. assault. In fact, the defendant tried to argue that his assault on the girl negated any intent to steal and the court expressly rejected this argument:

That he committed the crime of assault on a girl after the illegal entry was completed does not call for a different conclusion. Although this is one objective fact which tends to indicate appellant’s subjective intent to commit acts other than theft, it is not sufficiently strong to preclude a jury finding that the original intent had been to steal. Indeed there was no showing that before the entry appellant was aware of the girl’s presence in the house. Appellant offered no evidence tending to suggest that the accused lacked motive for theft. In the absence of some such evidence the verdict cannot be disturbed.

105 U.S.App.D.C. at 61, 263 F.2d at 745. Thus, the attempt by the majority to distinguish Washington is also futile.

Were this the only evidence—that appellant had broken into and entered this house in the nighttime and offered no explanation for his presence, Cady and Washington would both require affirmance. Yet the majority opinion fails to mention additional evidence which supports the jury’s conclusion that appellant had an intent to steal and which makes affirmance all the more compelling. The record establishes that there was evidence of (1) a forcible entry, (2) an attempt to gain further access into the interior of the house, (3) disturbance of various personal property in the sup room, (4) concealment of the individual, and finally (5) appellant’s suggestion that he resisted arrest was not negated. Any one of these acts is evidence of criminal intent sufficient to support a finding of intent to steal. However, the majority would have it believed that appellant’s presence in this house was wholly innocent, subtly suggesting that he was merely attempting to get out of the cold and went to sleep on Mrs. Vessels’ floor. These are mere assertions and have no factual support in the evidence. Thus, the majority notes only that Mrs. Vessels noticed that the sun room window had been opened, but fails to add that closer inspection revealed that the lock had been broken because it had been pried open. The majority attempts to negate any concealment by appellant by describing his position as “lying on the floor” when found by the police, suggesting appellant was only resting. Yet, there is no evidence that he was “lying.” The evidence is that he was “on the floor by the window.”

The majority further attempts to support its interpretation of the innocent nature of appellant’s forcible midnight entry by noting that he failed to attack Mrs. Vessels when she discovered his presence. The record, however, indicates that Mrs. Vessels never directly saw appellant, but only suspected he was still in the sun room and the plywood which had been knocked over when appellant attempted to open the French doors presented some obstacle to easy entry from the sun room to the dining room. Further, it finds significantly exculpatory the fact that appellant did not escape during the several minutes between discovery of his presence and his apprehension, even though there was an open window nearby. There is no evidence that appellant could have escaped had he attempted to do so. The policemen were undoubtedly armed and with armed policemen in close proximity, an open window is no guarantee of escape —so a refusal to attempt to so escape is not any indication of the absence of criminal intent. The point the majority opinion attempts to make in this respect is merely another example of where it is straining at gnats and thus indicating the weakness of its entire conclusion. After the awakening crash of the falling plywood, Mrs. Vessels “immediately got up” and went downstairs, saw the disturbed panelling, and “immediately kept [sic] out of the front door.” She walked to the side of the house noticing the open window to the sun room, walked to the back of the house and saw the cut screen door, and then “immediately went around and knocked on [her] neighbors [sic] door [10 feet across the driveway] and asked him to call the police.” Thus, her presence near the window could have forestalled his escape for some period of time and the police arrived within two or five minutes. Rather than inferring innocence from appellant’s failure to escape during this period, it would certainly be reasonable for the jury to conclude that his apprehension took place with such alacrity that he had no time to make his escape. And his position on the floor by the window when apprehended suggests not only concealment, but preparedness to make that escape if an opportunity presented itself.

In this general discussion it should also be noted that the facts were such that the jury could have concluded that he was attempting to “conceal” himself by the open window through which he had gained entry into the house by breaking the lock. To argue, as the majority opinion does that “He could not have been concealed, since the arresting officers saw him immediately upon peering through the door into the sunroom . ” attempts to embellish the cold facts. The reason he was discovered so quickly was because Mrs. Vessels told the police officers where she thought he was and he was trapped between the French doors which were difficult to negotiate because of the fallen plywood, and the open window only led outside where Mrs. Vessels might see him. By being on the floor next to the wall under the window, the jury would be justified .in inferring that he was attempting concealment—so the fact is that he tried to conceal himself, but the physical layout of the sun room prohibited him from effectively concealing himself. To my knowledge it has never before been suggested that an inability to conceal oneself or to escape is a defense to the crime of housebreaking.

It should also be noted that appellant had not been stationary in the room, as the majority implies. He had attempted to gain access to the dining room, he had disturbed a number of articles in the sun room, and he had finally moved back on the floor below the window he had entered. All this activity proves he was not just seeking sanctuary from the “pleasant night” in January.

Finally, the unsupported statement by the majority “that nothing of value in the house had been moved so as to indicate an attempt to steal” merits further discussion. While the record does not disclose the value of the personal property in the sun room, Mrs. Vessels testified that upon inspecting that room she discovered that a clock had been broken, and a lamp, some paintings in frames, and some pieces of “gill” had been disturbed. As mentioned previously, the record is unclear whether these items were disturbed by appellant before his arrest, or whether this occurred during his arrest. If before his arrest, the jury could have concluded that appellant was rummaging around for something to steal. If they were disturbed during his arrest, then the jury might well have reasoned that appellant was resisting his arrest. Either interpretation supports a conclusion by the jury that appellant possessed criminal intent from which an intent to steal could be inferred.

What has happened here is that not only has the majority misread controlling precedent in this circuit and the general law of the land on the subject, but it has taken a defendant-slanted selective view of the evidence to support reversal, when the law requires that the evidence should be viewed in the light most favorable to the jury’s verdict. To do otherwise, and particularly to state facts which have no support in the transcript, is to violate one of the best established rules of appellate procedure.

There are many other aspects of the majority opinion which should be very disturbing to those interested in the proper administration of justice. First of all, the majority refuses to find the appellant guilty of unlawful entry on the ground that no such lesser charge was submitted to the jury. Under such circumstances the law in this circuit does not require such a result. Assuming the evidence was deficient to support an intent to steal, on the facts presented we could direct that the District Court enter a judgment of guilty of unlawful entry. And to add insult to injury appellant’s counsel had stated to the jury that his client was “guilty of unlawful entry.” Moreover, he was unquestionably guilty of forcible entry, which is a greater offense.

The effect upon appellant is also destructive of justice. He needs incarceration as his counsel said at sentencing:

This is a man, to me, who is apparently heading to a road of suicide, itself. He’s not a men [sic] fately bent on mischief, or trying to prey on society. He’s his own worse [sic] enemy. He’s a person who is being hurt himself by what he does; nobody else.
I don’t know what to suggest to the Court with respect to sentence. I’d leave that to the Court’s wisdom.

This is in effect a plea for an appropriate sentence to incarcerate and thereby help appellant. Appellant himself said, inter alia:

During my 20 years in association with narcotics, I’ve never—I’ve deliberately refrained from committing crimes of violence and when I used drugs, I get involved in petit larcenies.

The italicized portion of the statement corroborates the soundness of the logic that permits a jury to infer that the intent of a nighttime prowler, the other statutory factors being present, is to steal.

The trial judge showed great compassion and adjudged a very considerate sentence of “one to five years” with a recommendation that it be served in “the Federal institution at Lewisburg where they have a program which may be helpful to you in connection with your narcotic problem.”

For the majority of this panel to take this convicted burglar with a 20-year narcotics problem who has a self-admitted compulsion to commit larceny when he is using drugs and, contrary to all the law for over a century, turn him loose to prowl and prey further upon the citizens of the District of Columbia is in my considered opinion worse than the offense the appellant committed. Probably the greatest disservice performed by the majority is to appellant himself who practically admitted his guilt and it is significant that his counsel never opposed incarceration but in effect asked the court to help this man “who is apparently heading to a road of suicide, itself.” There was no other practical sentence than the one the court adjudged, he having previously served much time in jail, principally for larceny. Of all the sad cases that have gone through our court, turning this man loose, under such circumstances, is the saddest and one of the most gross miscarriages of justice that I have encountered.

One final point, while the panel opinion has incorrectly stated material facts which even under its own statement of the law would require affirmance, more vitally, the panel has not applied the decisional law of this circuit, as explained above. The only proper way the result reached by this panel can be reached in this circuit is for an en banc court to reverse all the prior law in this circuit on the subject. So, unless the same result is reached by an en banc court, the majority opinion will not be entitled to any precedential value in this circuit because it is in conflict with the previously established law in this circuit. It can also be added that the majority opinion is contrary to the general law in the United States. In fact, a diligent search of the case law has not turned up any case in the history of the United States where a burglary conviction was reversed under the circumstances which exist here.

On Appellee’s Petition for Rehearing and/or Suggestion for Rehearing En Banc

Before: BAZELON, Chief Judge; and WRIGHT and MacKINNON, Circuit Judges.

ORDER

On consideration of the petition of the United States for rehearing and its suggestion for rehearing en banc, it is ordered by the Court that the petition for rehearing is granted for the limited purpose of modifying the Court’s original opinion and judgment by amending Part IV of the opinion to read as follows:

Appellant’s burglary conviction is reversed. However, in convicting appellant of burglary, the jury necessarily found the facts required for conviction of the lesser included offense of unlawful entry, and there is no question that the evidence was sufficient to support this determination. We therefore exercise our power under 28 U.S.C. § 2106 (1970) to remand the case with instructions either to enter, if the Government consents, a judgment of conviction of unlawful entry or, if the court believes it in the interest of justice, to grant a new trial on the lesser offense.

Under the statute the offense of burglary does not include an element of “breaking” or force; the offense of forcible entry, of course, does. Hence, the jury’s verdict against Melton on the burglary charge cannot be taken as indicating that it found all elements necessary to conclude that he had committed forcible entry. We cannot, therefore, properly authorize on remand a judgment of conviction of forcible entry, even though evidence was presented at trial from which a jury might have concluded that Melton had indeed committed that offense. It remains open to the Government, however, to decline the unlawful entry conviction, and to seek instead to indict and prosecute Melton for forcible entry.

Reversed and Remanded.

Per Curiam.

MacKINNON, Circuit Judge,

dissenting:

My vote is cast for rehearing en banc. A majority of the court—for differently stated reasons has denied the suggestion of the United States for rehearing en bane. On rehearing the panel has improved its original disposition which would have completely reversed the conviction and freed appellant of all offenses. But the alteration in the disposition of this case will not correct the major decisional error in the majority opinion nor will it respond adequately to appellant's cry for help in his pitiful situation. Under the statute the maximum period of incarceration for unlawful entry is six months and good time allowances could reduce that period of confinement. Obviously that short period of incarceration cannot sufficiently help appellant to correct his deeply ingrained drug habit which requires a change in his nature. So the majority of the panel apply an inadequate remedy to the problems of the accused and the public can look forward to an early resumption of his predatory behavior. What good is all our supposed intelligence, culture and wealth if we refuse to use them in a common sense way and the perils of the street continue?

In reaching such conclusion the panel majority also continue in their failure to properly apply the burglary law of this nation to the facts of this case. The details of this most egregious error are set forth in my original dissenting opinion. In this aspect of the opinion, the majority decision as to the applicable law is so extreme and so far removed from established law as to place the action of the court as a practical matter beyond the bounds of judicial decision and bring it into what is legislative action beyond the prerogatives of the court whose jurisdiction and authority is limited to “judicial power.” This is another instance, of which this court has a tendency to furnish too many examples, where the majority are avoiding long established law and precedents in an attempt to embark the law enforcement agencies of this jurisdiction upon uncharted seas with an uncertain compass and the proper administration of justice becomes uncertain and doubtful. The majority should recognize that the public has some rights too, as well as the accused, in the proper execution of the criminal laws.

      . 22 D.C.Code § 1801(a) (Supp. V 1972).

      . Curley v. United States, 81 U.S.App.D.C. 389, 391-392, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

      . 22 D.C.Code § 3102.

      . 22 D.C.Code § 1801 (Supp. V 1972).

      . See, e. g., United States v. Thomas, supra, 444 F.2d at 925; United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971) ; cases collected at United States v. Sinclair, 144 U.S.App.D.C. 13, 444 F.2d 888, 891 n. 9 (1971) (Robinson, J., dissenting).

      . See, e. g., Perkins on Criminal Law at 193 (1969).

      . 22 D.C.Code § 1801(b) (Supp. V. 1972). Allowing nighttime entry to ipso facto support a burglary conviction would produce anomalous results that could not have been intended by Congress. Defendant A enters an occupied dwelling half an hour after sunset. Defendant B did so an hour earlier. Defendant C unlawfully enters an empty warehouse late at night. Defendant A could be found guilty of first degree burglary, and sentenced to 30 years. Defendant B who poses as great a threat to the security of the occupants, could be found guilty only of breaking and entering and subject to a maximum sentence of 6 months. Defendant C, who poses no threat to anyone may be found guilty of second degree burglary and sentenced to 15 years in prison. Congress wisely concluded that the issue should be why—not at what time—the defendant unla-wfully entered.

      . See, e. g., Bayless v. United States, 381 F.2d 67, 75-77 (9th Cir. 1967) (construing R.C.W.A. 9.19.010-9.19.030).

      . United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971) ; United States v. Seegers, 144 U.S.App.D.C. 162, 445 F.2d 232 (1970) ; United States v. Huff, 143 U.S.App.D.C. 163, 442 F.2d 885 (1971), cf. United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971) (an indictment which was faulty to charge burglary, nonetheless, did adequately charge an unlawful entry.)

      . P. 47, majority opinion.

      . United States v. Fox, 140 U.S.App.D.C. 129, 131, 433 F.2d 1235, 1237 (1970).

      . Tr. 18, 19.

      . Tr. 18.

      . Tr. 17, 18.

      . Tr. 17.

      . Tr. 18.

      . Tr. 19, 27.

      . Tr. 29. Appellant’s counsel in his opening statement stated to the jury that appellant “was down on all fours” (Tr. 15). Government counsel in his opening statement stated that when the police entered the appellant was on the sunporch “down in the corner, hunched down ...” (Tr. 10).

      . Tr. 29.

      . Id.

      . P. 47, majority opinion.

      . Id. at 5.

      . Tr. 23.

      . Id. “These things were in the sun room and this is where he was found.”

      . Tr. 15.

      . Tr. 15, 23, 57, 58.

      . Tr. 26-30.

      . D.C.Code § 22-1801 (a) provides:

      . The evidentiary inferences that are deducible from this fact are illogically ignored by the majority opinion confusing the statute with the rule of evidence.

      . United States v. Fox, 140 U.S.App.D.C. 129, 433 F.2d 1235 (1970) is not to the contrary. There, as the majority opinion notes, the court stated that “unauthorized presence in another’s premises hardly supports an inference of entry with a criminal purpose, but when aided by other circumstances it very well might.” 140 U.S.App.D.C. at 131, 433 F.2d at 1237 (emphasis added). As this dissent demonstrates, there were “other circumstances” present here.

      . The majority opinion suggests that Wood-ruff, as with the other cases relied on by the trial judge, can be distinguished, presumably on the basis of flight. There was, however, no flight in Woodruff. The quote from Woodruff, cited by the majority and also quoted in United States v. Thomas, 144 U.S.App.D.C. 44, 49, 444 F.2d 919, 924 (1971), wherein there is a reference to flight, is actually from State v. Teeter, 69 Iowa 717, 27 N.W. 485 (1886), and is cited by the Woodruff court only for support.

      . See text accompanying note 27 et seq., infra.

      . 54 App.D.C. at 11, 293 F. at 830.

      . Steadman v. State, 81 Ga. 736, 8 S.E. 420 (1888) ; Commonwealth v. Shedd, 140 Mass. 451, 5 N.E. 254 (1886) ; People v. Soto, 53 Cal. 415 (1879).

      . 54 App.D.C. at 12, 293 F. at 831.

      . Tr. 19, 28.

      . Tr. 29. This was the testimony by the arresting officer and the only sworn testimony of the subject. The prosecutor in opening argument said he was “down in the corner, bunched down” (Tr. 10). Appellant’s trial counsel in opening argument stated he was “down on all fours” (Tr. 15).

      . Tr. 20.

      . Tr. 24.

      . Tr. 17-18.

      . Tr. 18-19.

      . Tr. 19, 27.

      . Majority opinion, p. 48.

      . Tr. 22.

      . Tr. 23.

      . Majority opinion, p. 49.

      . In Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967), we construed 28 U.S.C. § 2106 (1970) as authorizing federal appellate courts to modify a criminal judgment to reduce the conviction to that of a lesser included offense, in situations where the evidence failed to support one element of the crime for which appellant was charged and convicted but sufficiently sustained all the elements of the included offense. This procedure has been subsequently followed in a number of cases. See, e. g., United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971) ; United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969) ; Allison v. United States, 133 U.S.App.D.C. 159, 409 F.2d 445 (1969) ; Hemphill v. United States, 131 U.S.App.D.C. 46, 402 F.2d 187 (1968).

      . Tr. 11.

      . D.C.Code § 22-3101 provides :
      Whoever shall forcibly enter upon any premises, or having entered without force, shall unlawfully detain the same by force against any person previously in the peaceable possession of the same and claiming right thereto, shall be punished by imprisonment for not more than one year or a fine of not more than one hundred dollars, or both. (Mar. 3, 1901, 31 Stat. 1327, ch. 854, § 851.)

      . Tr. 82 (emphasis added).

      . Tr. 83 (emphasis added). This statement is a practical admission in this case that the inference of intent to steal available to the jury from the nighttime breaking and entering is precisely applicable to' appellant in this case.

      . Tr. 83.

      . Tr. 81.

      . See Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967).

      . 22 D.C.Code § 3101 (Supp. V 1972).

      . I do not believe that we should decline to en banc a criminal case to correct a decision involving an important legal question arising under the Criminal Code of the District of Columbia on the ground that this court recently has been divested of much of its jurisdiction in such matters. If the decision is wrong we should correct it and not let it stand for others to consider it as a decision concurred in by this full court.

      . D.C.Code § 22-3102 (1973) provides:
      Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building or other property, or part of such dwelling, building or other property, against the will of the lawful occcupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the jail for not more than six months, or both, in the discretion of the court. Mar. 3, 1901, ch. 854, § 824, 31 Stat. 1324; Mar. 4, 1935, ch. 23, 49 Stat. 37; July 17, 1952, ch. 941, § 1, 66 Stat. 766.

      . D.C.Code § 24^405 (1973).


source: Caselaw Access Project

author: BAZELON, Chief Judge:

license: Public Domain

text:
    J. J. O’DONNELL, as President of Air Line Pilots Association, et al., Appellants, v. John H. SHAFFER, Individually and as Administrator of the Federal Aviation Administration. Truman R. OUTLAND et al., Petitioners, v. John A. VOLPE et al., Respondent.
    Nos. 71-1892, 72-1511.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 29, 1973.
    Decided Jan. 17, 1974.

      Gary Green, Washington, D. C., for appellants in No. 71-1892. Allen Berk, Washington, D. C., also entered an appearance for appellants in No. 71-1892.
    James M. Merberg, Boston, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, for petitioners in No. 72-1511. William G. Ohlhausen, Washington, D. C., was on the brief for petitioners in No. 72-1511.
    Edwin E. Huddleson, III, Atty., Dept. of Justice with whom Harold H. Titus, Jr., U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice were on the brief for appellees in No. 71-1892 and respondents in No. 72-1511. Morton Hollander and Irwin A. Seibel, Attys., Dept. of Justice, also entered appearances for appellees in No. 71-1892 and respondent in No. 72-1511.
    Michael H. Bader and John V. Kenny, Washington, D. C., filed a brief on behalf of Sidney A. Hill and others, as amicus curiae.
    Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and VAN PELT, United States Senior District Judge for the District of Nebraska.

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

   BAZELON, Chief Judge:

In March, 1972, the Federal Aviation Administration upheld its requirement that commercial air line pilots retire at age sixty. Appellants challenge this decision on procedural and substantive grounds. Because the procedure utilized was appropriate and the factual basis adequate, we affirm the F.A.A.’s action.

I

The “age sixty” rule was promulgated in 1959 pursuant to the F.A.A.’s statutory authority to promote safety in air commerce. Notice of proposed rule-making was given and written comments were received, but no evidentiary hearing was held. The rule provided, as it does today, that no one who has reached age sixty may serve as a pilot on a commercial airplane. When it was issued, the Administrator cited studies indicating that “sudden incapacity due to . medical defects becomes significantly more frequent in any group reaching age 60” and the possibility of such incapacity “cannot be predicted accurately as to any specific individual on the basis of presently available tests and criteria.” In 1960 the Second Circuit held that the rule was a valid exercise of the Administrator’s authority and that affected parties had no Constitutional or statutory right to an evidentiary hearing before it was issued.

The present litigation began on June 5, 1970, when the Air Line Pilots Association (ALPA) filed a petition with the F.A.A. requesting revocation of the age sixty rule and initiation of “public evidentiary proceedings for the development of a record” upon which their petition could be adjudicated. ALPA’s submission outlined evidence which allegedly established that the factual basis of the rule was invalid. On March 9, 1971, Captains Outland, Rogers, and Latimer filed a similar petition.

The F.A.A. agreed to hold public hearings to receive the views of interested persons concerning retention, amendment, or revocation of the rule. The hearings were held on October 19 and 20, 1971, in accordance with the informal rulemaking procedures of the F.A. A. They were not, therefore, “evidentiary hearings”—formal cross-examination was not permitted. Instead they proceeded as follows. Interested parties presented oral or written statements. Following an oral statement those present were allowed to submit written questions of the witness for the purpose of clarification. At times, oral questioning of the witness was permitted because the writing procedure proved unwieldy. After the opening round of oral statements, witnesses were permitted to make additional comments or rebuttal, and several did so. The participants at the hearings included ALPA and Captains Outland, et al.

On March 23, 1972, the Acting Administrator of the F.A.A. issued a “Disposition of Petition,”' denying all petitions to revoke the age sixty rule. He summarized the evidence for and against the rule and noted that the Office of the Federal Air Surgeon had concluded that petitioners had justified neither revocation nor amendment. The Acting Administrator concurred in the Air Surgeon’s judgment:

The testimony and exhibits offered at the hearing are at best subject to contention, as witnessed by the unqualified support of the age 60 rule by the Aerospace Medical Association, and the Committee on Aerospace Medicine, American Medical Association.
Before the chronological basis for termination of service can be replaced by a system based on physiological and psychological factors, those factors must be capable of identification and application within the framework of the FAA medical examination. . In this regard, an increase in the number of medical examinations administered to a given pilot, as suggested by some of the testimony presented at the hearing, would not be an effective deterrent to incapacitation inasmuch as the indices of such incapacitation are not now sufficiently developed.

II

Appellants concede that neither the Administrative Procedure Act nor the Federal Aviation Act required the F.A. A. to conduct an evidentiary hearing in its October rulemaking proceeding. They contend, however, that the Due Process Clause mandated such a hearing because of the nature, of the issues involved. The age sixty rule is based on the theory that risks of pilot incapacitation increase after age sixty and that medical science is unable to identify those risks on an individual pilot basis. Appellants maintain that scientific evidence devéloped in recent years invalidates this theory. Thus complex technical issues are involved in a matter affecting the livelihood of pilots. Consequently, appellants maintain, due process requires that “trial by ordeal of cross-examination distill the truth.”

We are unable to support this view. The age sixty rule does not “single out any particular [party] for special consideration based on its own peculiar circumstances.” Thus its adoption did not require an adjudicatory proceeding including formal cross-examination. The rule is rather a general standard “applicable across the board” and thus a proper subject for less formal procedures. The fact that pilots’ livelihoods are affected does not distinguish this case from numerous others where agency rulemaking affects careers. Rules that apply generally are not subject to the requirements of adjudication simply because of their inevitable effect on individuals.

Nor does the presence of technical issues in and of itself create a need for cross-examination. Much agency action involves technical expertise—indeed, that is a major reason for the delegation of rulemaking authority to agencies. Here the agency’s proceedings provided an adequate opportunity for the airing of technical disputes. Appellants presented their evidence orally and in writing and questioned a supporter of the rule who testified at the hearing. The agency considered the evidence presented at the hearing in its “Disposition of Petition.” On these facts, the procedures were adequate for the task at hand.

The fact that an agency action falls into the traditional category of “rulemaking” does not, of course, mean that traditional procedures are automatically adequate. This Court has long recognized that basic considerations of fairness may dictate procedural requirements not specified by Congress. Oral submissions may be required even in legislative-type proceedings, and cross-examination may be necessary if critical issues cannot be otherwise resolved. Broad issues of public health and safety may, for example, require an expanded right of confrontation, subject, of course, to legitimate needs for emergency action. The choice is not between a full trial-type hearing and no public proceeding at all. The goal is rather to insure that administrators provide a “framework for principled decision-making” —a framework that is appropriate for the issue at hand. As we have noted, such a framework was provided in this case.

III

Appellants’ final contention is that there was insufficient evidence to support the agency’s decision to retain the age sixty rule. Given the inconclusiveness of appellants’ evidence and the existence of contrary views, we are unable to find that the F.A.A.’s decision was unreasonable.

For these reasons, the judgment in Case No. 71-1892 is affirmed and the petition for review in Case No. 72-1511 is denied.

So ordered.

      . “Appellants” is used throughout this opinion to refer collectively to appellants in No. 71-1892 and petitioners in No. 72-1511.

      . See Air Line Pilots Association, International v. Quesada, 276 F.2d 892 (2d Cir. 1960), cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961).

      . Id. Today the relevant provisions of the Federal Air Regulations (14 C.F.R. Part 121) are as follows :
      Sec. 121.383(c). No certificate holder may use the services of any person as a pilot on an airplane engaged in operations under this part if that person has reached his 60th birthday. No person may serve as a pilot on an airplane engaged in operations under this part if that person has reached his 60th birthday.

      . 24 Fed.Reg. 9767 (December 5, 1959).

      . Air Line Pilots Association, International, supra.

      . Verified Petition, June 4, 1970 (Joint Appendix, 6, 18).
      On November 9, 1970, ALPA filed suit in the United States District Court for the District of Columbia seeking an injunction compelling the F.A.A. to hold “a public evidentiary, trial-type hearing” on the age 60 rule (J.A. 44). The District Court granted summary judgment for the F.A.A. (Civil Action No. 3316-70, September 1, 1971) and it is from this ruling that appellants in No. 71-1892 appeal.

      . Petitioners in No. 72-1511 are seeking direct review by this Court of the F.A.A.’s “Disposition of Petition” of March 23, 1972.
      This Court ordered the appeal in No. 71-1892 consolidated with No. 72-1511 for all purposes on December 14, 1972.
      Because of our clear jurisdiction in No. 71-1892 and our holding on the merits, we elo not reach the question of whether we have jurisdiction in No. 72-1511 under 49 U.S.C. 1486(a). Cf. Deutsche Lufthansa Aktiengesellschaft v. C.A.B., 156 U.S.App.D.C. 191, 479 F.2d 912 (1973). We note only that, even if we have such jurisdiction, the proper standard for review of the rule in the instant case is nonetheless that stated in Part III, infra.

      . See, e. g., Tr. 51.

      . Disposition of Petition, Marcli 23, 1972 (J.A. 22, 26).

      . Appellant’s (Case No. 71-1892) brief at 14, citing Richardson v. Perales, 402 U.S. 389, 414, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

      . United States v. Florida East Coast Railway, 410 U.S. 224, 246, 93 S.Ct. 810, 821, 35 L.Ed.2d 223 (1973).

      . Id.

      . See 1 Davis, Administrative Law Treatise §§ 7.06, 7.07 (1958, 1970).

      . Id. at § 1.05.

      . Tr. 57-18.

      . See, e. g., American Airlines v. C.A.B., 123 U.S.App.D.C. 310, 359 F.2d 624, 631-632 (en bane 1966), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966) ; Walter Holm and Co. v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009 (1971).

      . Id.

      . See Thompson v. Washington (D.C.Cir. No. 71-2049, Dec. 10, 1973) at 28, 29 ftn. 48 and oases cited therein.

      . See International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 19, 478 F.2d 615, 629-031, 650-652 (Bazelon, C. J., concurring) .

      . Friends of the Earth v. United States A.E.C., 158 U.S.App.D.C. 252, 485 F.2d 1031 (1973) (statement of Bazelon, C. J.).

      . See Davis, Discretionary Justice at 118.

      . Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 598 (1971).

      . See, e. g., Tr. 307, 308.

      . See testimony of Dr. Lederer, Tr. 51-78.

      . See Automotive Parts and Accessories Association v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330. 343 (1968).


author: WILKEY, Circuit Judge:

text:
    MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, Appellant, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellee. MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, Appellee, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellant.
    Nos. 73-1443, 73-1444.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 5, 1973.
    Decided Jan. 21, 1974.

      Robert L. Ackerly, Washington, D. C., with whom Charles A. O’Connor, III, Washington, D. C., was on the brief, for appellant in No. 73-1443 and appellee in No. 73-1444.
    Stephen F. Eilperin, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Walter H. Fleischer,
    Atty., Dept. of Justice were on the brief for appellant in No. 73-1444 and appellee in No. 73-1443.
    John A. Terry and Robert S. Rankin, Jr., Asst. U. S. Attys., also entered appearances for appellant in No. 73-1444 and appellee in No. 73-1443.
    Before TAMM, ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

In an action brought under the Freedom of Information Act [FOIA] Montrose Chemical Corporation is seeking to obtain two summaries of evidence developed at a hearing. The Administrator of the Environmental Protection Agency [EPA], the official for whom the summaries were prepared, then William Ruckelshaus, contends that the summaries are exempt from disclosure under the intra-agency memoranda exception of FOIA. Exemption 5 frees from the disclosure requirements “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”

After in camera inspection of the documents the District Court granted Mont-rose summary judgment, but deleted certain portions of one document without explanation. On cross-appeals from the District Court order we reverse the decision below, and hold that both summaries are within the intra-agency memoranda exemption and hence not subject to forced disclosure.

I. THE FACTUAL BACKGROUND

The two documents at issue here were prepared by staff of the EPA to summarize evidence adduced at EPA hearings on DDT, held pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA]. The Consolidated DDT Proceedings, begun in August 1971 and concluded in March 1972, compiled a record of over 9200 pages. The Hearing Examiner entered findings and conclusions that all DDT registrations were in compliance with FIFRA.

EPA regulations provide that the Judicial Officer review the record of the proceedings and render the final decision. However, in view of the importance of the case, the Administrator withdrew from the Judicial Officer this delegation of authority and himself, along with the Judicial Officer and two high level EPA attorneys, heard oral argument on 16 May 1972. In an order dated 2 June and issued 14 June 1972, Ruekelshaus directed the cancellation of the DDT registrations, thus reversing the Hearing Examiner.

In the course of his consideration of the case, Ruekelshaus sought the assistance of his staff. Specifically, he requested the three EPA attorneys who were to hear the oral argument with him, and who had not been connected with the EPA position at the hearings, to review the record made at the hearings, and to direct the preparation of analyses of the evidence. Two documents which were prepared by the staff are at issue here: one entitled “Analysis of Risks Attributed to DDT,” and the other “Summary and Analysis of Evidence of Benefits.” These documents were to be used only to assist Ruckelshaus in his study of the record, and were based wholly on evidence in the record of the hearings.

While Montrose contends that the summaries are factual and should be disclosed since a decision should be based on a public record, the EPA contends that the summaries are intra-agency memoranda, prepared as part of the deliberative process, exempt from disclosure under exemption 5. The EPA argues that the summaries contain no facts not already in the public record, and should remain confidential because of the need for full and free exchange of ideas in the decision-making process.

The District Court holding and rationále were put succinctly: “After consideration of the documents in camera, the Court finds that all or part of the documents constitute summaries of testimony, summaries of the record, conclusions of witnesses and other factual information and are not exempt from disclosure as intra-agency memoranda.” Without explanation, the District Court exempted from disclosure certain identified portions of one document. The District Court stayed its order pending this appeal.

II. ANALYSIS OF EXEMPTION 5

The issue before the court, whether a staff-prepared summary of factual evidence on the record is within exemption 5 of FOIA, has not been adjudicated previously. However, exemption 5 itself has received careful attention by the Supreme Court, this court, and other federal courts. We first review the seminal case, Environmental Protection Agency v. Mink, and other exemption 5 eases, and then we apply the law to the documents at issue here.

Exemption 5 must, of course, be interpreted in the context of the Freedom of Information Act as a whole. The broad goal of FOIA was to make available to the public a wide range of information in the Government’s control. Notwithstanding the general goal of disclosure, it was recognized that something less than 100% disclosure of all government operations was only practical and reasonable. Hence Congress attempted to establish standards for the necessary departure from the general rule of disclosure by creating nine explicit exemptions. These exemptions are exclusive, and are to be interpreted narrowly.

In Environmental Protection Agency v. Mink, the Supreme Court considered the legislative history of exemption 5 and concluded that “Congress intended to incorporate generally the recognized rule that ‘confidential intra-agency advisory opinions . . . are privileged from inspection.’ ” To protect the deliberative or policy-making processes of government, such an exemption was necessary. It was feared that, if internal agency discussions and memoranda were publicized, the Government would be forced to “operate in a fishbowl,” thus inevitably inhibiting frank discussion essential to the development of carefully formulated, coherent agency policy.

Some limitations were essential in interpreting exemption 5 to prevent the exception from engulfing the rule. One such limitation adopted by the Mink Court, was the dichotomy between factual and deliberative matters. When an intra-agency memorandum consisted of purely factual material, or such factual portions were easily severable from the deliberative portions, disclosure would be required. Such an interpretation, it was thought, would not be “injurious to the consultative functions of government that the privilege of nondisclosure protects,” and would be also consonant with the intent of Congress.

This distinction drawn in Mink between factual and deliberative material was earlier suggested by this court in Soucie v. David. In a passage which anticipates the current controversy, Chief Judge Bazelon wrote for the court that exemption 5

was intended to encourage the free exchange of ideas during the process of deliberation and policy-making; accordingly, it has been held to protect internal communications consisting of advice, recommendations, opinions, and other material reflecting deliberative or policy-making processes, but not purely factual or investigatory reports. Factual information may be protected only if it is inextricably intertwined with policy-making processes. Thus, for example, the exemption might include a factual report prepared in response to specific questions of an executive officer, because its disclosure would expose his deliberative processes to undue public scrutiny. But courts must beware of “the inevitable temptation of a governmental litigant to give [this exemption] an expansive interpretation in relation to the particular records in issue.”

This distinction was not decisive in Soucie, because the District Court had mistakenly thought FOIA inapplicable to the governmental body involved, and a remand was necessary to develop an appropriate record. We did this accompanied by the statement that, on the basis of the record at the time, there was no reason to believe that disclosure of the factual information in the reports there involved would unduly expose the decisional process.

Other cases in this Circuit have also recognized a distinction between purely factual and deliberative reports. Thus, for example, in Bristol Myers Co. v. FTC, we noted that

Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only “those internal working papers in which opinions are expressed and policies formulated and recommended.”

In none of these cases, however, was the distinction fully elaborated.

III. THE FACTUAL/DELIBERATIVE TEST IN LIGHT OF THE PRESENT CASE

In the case at bar this factual versus deliberative distinction is inadequate to resolve the difficult question whether the factual summaries should be exempt from disclosure. The difficulty arises because of the nature of the documents. It is agreed that the summaries in question are in large part compilations of facts introduced in evidence at the hearings, and on the public record. Montrose contends that such factual materials must be disclosed under the prior decisions discussed above. In contrast, EPA contends that the mere compilation of a summary of the evidence on record, performed by staff members for the use of the Administrator in formulating his decision and final order, is itself a part of the internal deliberative process which should be kept confidential and within the agency. What will be disclosed here if the District Judge’s order is upheld, argues the EPA,

are not “facts” not yet possessed by Montrose Chemical Corporation, but rather the judgmental evaluation and condensation of the more than 10,000 pages of facts from which the Administrator gained an overview of the record in order to assist his decision-making. The only new “information” which disclosure of these summaries would provide Montrose concerns the mental processes of the agency—a process which Montrose is not entitled to probe.

This statement by EPA hits the heart of the issue here: Can Montrose use the FOIA to discover what factual information the Administrator’s aides cited, discarded, compared, evaluated, and analyzed to assist the Administrator in formulating his decision? Or would such discovery be an improper probing of the mental processes behind a decision of an agency? These questions must be considered in the light of the statutory provision of FIFRA, which requires the Administrator’s decision cancelling pesticide registrations to be “based only on substantial evidence of record.” Of equal importance, it must also be borne in mind that Ruckelshaus did render a 50-page decision, citing voluminous facts and statistics, and explained in detail the rationale of his, the Administrator’s, final decision. The world was not left in doubt as to either the factual basis or the reasoning behind the final product.

Our solution rests on the interpretation of the purpose of exemption 5. If the exemption is intended to protect only deliberative materials, then a factual summary of evidence on the record would not be exempt from disclosure. But if the exemption is to be interpreted to protect the agency’s deliberative process, then a factual summary prepared to aid an administrator in resolution of a difficult, complex question would be within the scope of the exemption.

The EPA assistants here were exercising their judgment as to what record evidence would be important to the Administrator in making his decision regarding the DDT registrations. Even if they cited portions of the evidence verbatim, the assistants were making an evaluation of the relative significance of the facts recited in the record; separating the pertinent from the impertinent is a judgmental process, sometimes of the highest order; no one can make a selection of evidence without exercising some kind of judgment, unless he is simply making a random selection.

Ruckelshaus’ use of his assistants to winnow down the evidence was similar in many ways to a judge’s use of his law clerk to sift through the report of a special master or other lengthy materials in the record. In both situations, when faced with a voluminous record, the decision-maker may wisely utilize his assistants to help him determine what materials will be significant in reaching a proper decision.

To probe the summaries of record evidence would be the same as probing the decision-making process itself. To require disclosure of the summaries would result in publication of the evaluation and analysis of the multitudinous facts made by the Administrator’s aides and in turn studied by him in making his decision. Whether he weighed the correct factors, whether his judgmental scales were finely adjusted and delicately operated, disappointed litigants may not probe his deliberative process.

The bar against probing the mental processes of an executive branch decision-maker is not recently derived from exemption 5 of FOIA. Indeed, the courts have long recognized the sanctity of the decision-making process, absent discernible likely gross abuse. Perhaps the most influential eases in explicating this area of the law have been the Morgan decisions of the 1930’s. In this litigation series, an order of the Secretary of Agriculture establishing maximum rates to be charged by market agencies at the Kansas City Stockyards was challenged by the market agencies on a variety of grounds. In Morgan I, where the nature of the hearing was at issue, Chief Justice Hughes indicated that in an administrative ratemaking proceeding, as in a judicial 'proceeding, “the one who decides must hear.” The decision-maker cannot be one who has neither considered the evidence nor the argument. But, as Chief Justice Hughes continued, this rule does not preclude the wise use of assistants in the administrative process. He specifically suggested that evidence could be taken by a hearing examiner, and this evidence could then be “sifted and analyzed by competent subordinates” of the administrator.

Morgan II involved in part the question of court review of - the Secretary of Agriculture’s decision-making process. Although the Court, again per Chief Justice Hughes, held that a full hearing had not been given, it noted that “it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions if he gave the hearing which the law required.” This statement was reaffirmed by the Court in Morgan IV, per Justice Frankfurter. Morgan IV also held that examination of the Secretary concerning the process by which he decided the rate issue, including questions on the manner and extent of his review of the record and his discussion with assistants, was improper and should not have occurred. Justice Frankfurter analogized the position of the Secretary to that of a judge, and indicated that the integrity of both the administrative process and the judicial process must be respected; scrutiny of either process was not to be permitted, absent extraordinary circumstances.

The protection of the deliberative process of agency decision-makers, stressed in the Morgan litigation, has also been reflected in cases under FOIA. This Circuit and others have emphasized that the purpose of exemption 5 is not simply to encourage frank intra-agency discussion of policy, but also to ensure that the mental processes of decision-makers are not subject to public scrutiny. And Mink reaffirms that the consultative functions are to be protected by exemption 5.

The use of the staff-prepared summaries by the Administrator does not conflict with his duty to decide the case on substantial evidence of record. Ruckelshaus has sworn in his affidavit that the summaries contain only evidence on the public record and analyses thereof. He was not using the summaries to obtain new facts not on the record. Thus, the litigants and the public have already had full access to the record on which the decision was made, and what they are now seeking is the analysis of risks and benefits attributed to DDT made by the Administrator’s aides to assist him in his ultimate decision. In effect, the litigants seek to know what advice as to importance and unimportance of facts the Administrator received, and how much of it he accepted. Such information is most emphatically not part of the public record. To argue, then, that the Administrator has not decided on a public record ignores the real question of what is the public record.

Furthermore, this case is distinctly different from other FOIA cases where a decision-maker has referred to an intra-agency memorandum as a basis for his decision. In such cases this court has required disclosure of the memoranda, for, once adopted as a rationale for a decision, the memorandum becomes part of the public record. Here the Administrator at no time refers to any evidence not on the record.

Similarly, our case here is to be distinguished from a situation in which the only place certain facts are to be found is in the administrative assistants’ memoranda. Here all the facts are in the public record. What is not in, and should not be in, the public record is the administrative assistants’ evaluation and selection of certain facts from the 9200-page public record If we confront a case in which some facts' are only found in the aide’s memorandum, then the principles of Vaughn v. Rosen and' Cuneo v. Schlesinger would be applicable, i. e., the Government would bear the burden of putting the record in such shape that all facts are in the public record, separate from analysis which need not be disclosed.

It is possible that the assistants in winnowing down the record may have made errors of inclusion or exclusion, or even gross distortions of fact. But these possibilities reflect human errors and mis judgments which are part of the deliberative process. The fact that errors may creep in and mislead the final decision-maker merely suggests that there may be errors in the deliberative or adjudicatory process; it does not mean that the preliminary studies by the staff are separate from the adjudicatory process or should be classified as part of the public record. The work of the assistants in separating the wheat from the chaff is surely just as much part of the deliberative process as is the later milling by running the grist through the mind of the administrator. And that some wheat is thrown away and some chaff included with the grain does not alter the nature of the process, even though it reflects error on the part of the assistants.

IV. CONCLUSION

Exemption 5 was intended to protect not simply deliberative material, but also the deliberative process of agencies. When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure under exemption 5 of FOIA.

In reaching the conclusion that the documents here are exempt from disclosure, we do not reject the faetual/deliberative test adopted in previous cases. Instead, we develop that test to recognize that in some cases selection of facts or summaries may reflect a deliberative process which exemption 5 was intended to shelter. Where the factual material is not already in the public domain, a different result might be reached. Here, however, where all facts are already on the record, and where the summaries were used simply as an aid in decision-making, the exemption applies; the order of the District Court requiring disclosure of parts of the summaries is therefore

Reversed.

      . 5 U.S.C. § 552 (1970).

      . 5 U.S.C. § 552(b) (5).

      . 7 U.S.C. §§ 135-135k (1970). FIFRA was later amended by the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. § 136 (Supp. II, 1972). Under FIFRA, registrations of pesticides such as DDT were to be cancelled if injurious to man and his environment. This court considered the substantive aspects of the cancellation of the DDT registrations by the Administrator in Environmental Defense Fund, et al. v. Environmental Protection Agency, __ U.S.App.D.C. __, 489 F.2d 1247 (1973).

      . The Hearing Examiner is now officially called an Administrative Law Judge. See 37 Fed .Reg. 16787 (1972).

      . See Brief for Appellant Montrose at 3-4.

      . See Brief for Cross-Appellant Train at 22.

      . Id. at 3.

      . Affidavit of William Ruekelshaus ¶¶ 5b, 5e, in Appendix to Briefs at 26-27.

      . Affidavit of William Ruekelshaus ¶ 10, in Appendix at 29. Mr. Ruekelshaus also stated that lie considered no evidence not on the record. Affidavit ¶ 8, in Appendix at 28.

      . Appendix at 45.

      . The District Judge ordered exempt from disclosure the following portions of the document entitled “Analysis of Risks Attributed to DDT.”
      1. All handwritten notes in the margins
      2. The sections headed “Comparative Expertise,” “Relative Weight,” “Assessment,” “Weight of Evidence,” and “Total Evaluation.” See Appendix at 45-46.

      . 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

      . 5 U.S.C. § 552(a). See generally EPA v. Mink, 410 U.S. at 79-80, 93 S.Ct. 827, 35 L.Ed.2d 119.

      . 5 U.S.C. § 552(b).

      . 5 U.S.C. § 552(c). It is arguable that a court may, on equitable grounds, decline to require disclosure of records not covered by a specific exemption of the Act. Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 767, 787, 791, 802 (1967). Soucie v. David, 145 U.S.App.D.C. 144, 160, 448 F.2d 1067, 1083 (1971) (Wilkey, J., concurring opinion). But see Getman v. NLRB, 146 U.S.App.D.C. 209, 217, 450 F.2d 670, 678 (1971), where Judge Wright held for the court that such equitable discretion does not exist. That view was also supported in dicta by the majority in Soucie, 145 U.S.App.D.C. at 154, 448 F.2d at 1077.

      . See EPA v. Mink, 410 U.S. at 79, 89, 93 S.Ct. 827.

      . 410 U.S. at 86, 93 S.Ct. at 835, quoting Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 946, 141 Ct.Cl. 38, 49 (1958) (Reed, J.).

      . This often-quoted phrase seems to have first appeared in this context in S.Rep.No. 813, 89th Cong., 1st Sess. at 9 (1965).

      . Similar expressions are found in virtually all exemption 5 cases. See, e.g., International Paper Co. v. FPC, 438 F.2d 1349, 1358-1359 (2d Cir.), cert. denied, 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56 (1971) ; Ackerly v. Ley, 137 U.S.App.D.C. 133, 138, 420 F.2d 1336, 1341 (1969) ; American Mail Line Ltd. v. Gulick, 133 U.S.App.D.C. 382, 389, 411 F.2d 696, 703 (1969).

      . Justice White wrote for the Court,
      memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government.
      410 U.S. at 87-88, 93 S.Ct. at 836. Furthermore, he stated that exemption 5 “requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.” Id. at 89, 93 S.Ct. at 837.

      . Id. at 87, 93 S.Ct. at 836, quoting Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. at 946, 141 Ct.Cl. at 49.

      . 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971).

      . 145 U.S.App.D.C. at 154-155, 448 F.2d at 1077-1078. (Citations omitted.)

      . The material at issue in Soucie was a report known as the Garwin Report, prepared by a panel of experts for the Office of Science and Technology, a part of the Executive Office of the President. The report evaluated the Federal Government’s program for development of a supersonic transport aircraft (SST). In a suit to obtain disclosure of the report, the District Court held that the Office of Science and Technology was not an “agency” for purposes of FOIA, and that the report was protected from disclosure by the doctrine of executive privilege. This court on appeal held that OST was an agency, and the District Court erred in dismissing the suit. A remand to consider specific FOIA exemptions was ordered. 145 U.S.App.D.C. at 147-148, 448 F.2d at 1070-1071.

      . 145 U.S.App.D.C. at 155, 448 F.2d at 1078.

      . 138 U.S.App.D.C. 22, 26, 424 F.2d 935, 939, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970), quoting Ackerly v. Ley, 137 U.S.App.D.C. 133, 138, 420 F.2d 1336, 1341 (1969).

      . See, e.g., Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 243, 450 F.2d 698, 704 (1971).

      . See, e.g., Brief for Appellant at 8; Brief for Cross-Appellant at 20-21.

      . Brief for Cross-Appellant at 21.

      . 7 U.S.C. § 135b(c) (1970). See also 7 U.S.C. § 136d (d) (Supp. II, 1972).

      . “The basis of Exemption (5), as of the privilege which antedated it, is the free and uninhibited exchange and communication of opinions, ideas, and points of view—a process as essential to the wise functioning of a big government as it is to any organized human effort. In the Federal Establishment, as in General Motors or any other hierarchical giant, there are enough incentives as it is for playing it safe and listing with the wind; Congress clearly did not propose to add to them the threat of cross-examination in a public tribunal.” McGowan, J., in Ackerly v. Ley, 137 U.S.App.D.C. 133, 138, 420 F.2d 1336, 1341 (1969).

      . Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936) [Morgan I] ; 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) [Morgan II] ; 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939) [Morgan III] ; 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) [Morgan IV].

      . 298 U.S. at 481, 56 S.Ct. at 912.

      . Ibid. See also Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 407, 379 F.2d 453, 461 (1967), which also recognizes that the use of subordinates to sift the record may be appropriate. Braniff was not a FOIA case, although its administrative law principles are applicable here.

      . 304 U.S. at 18, 58 S.Ct. at 776.

      . 313 U.S. at 422, 61 S.Ct. 999, 85 L.Ed. 1429.

      . The Morgan cases were relied on in another non-FOIA ease with special relevance to the case at bar. Norris & Hirshberg, Inc. v. SEC, 82 U.S.App.D.C. 32, 163 F.2d 689 (1947), cert. denied, 333 U.S. 867, 68 S.Ct. 788, 92 L.Ed. 1145 (1948), involved in part a claim that the SEC relied on a summary, of the evidence in a case before the Commission which should have been filed in the record. In considering this claim, the court noted that the agency
      may utilize the services of subordinates to sift and analyze the evidence received by the trial examiner and subsequent use by the agency of a written resume of that sifting and analyzing is a part of its internal decisional process which may not be probed on appeal.

        Id. at 693. (Citations omitted.)
      Furthermore, the court indicated that it would be neither necessary nor proper for the summary to be made part of the record of the case if the summary was only used as an aid in interpreting the record.

      . See International Paper Co. v. FPC, 438 F.2d 1349, 1358-1359 (2d Cir.), cert. denied, 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56 (1971). See also, Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 245-246, 450 F.2d 698, 706-707 (1971) ; Soucie v. David, 145 U.S.App.D.C. at 155-156, 448 F.2d at 1077-1078. Although the factual circumstances in these eases differ from ours, these cases do suggest that it is the deliberative process which is to be protected by exemption 5.

      . 410 U.S. at 87, 93 S.Ct. 827, 35 L.Ed.2d 119. Cf. id. at 92-94, 93 S.Ct. 827, 35 L.Ed.2d 119. It is interesting to note that the Court in Mink refers to a non-FOIA case, Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38, (1958), as establishing a principle of protection for the deliberative process. Justice Reed wrote in Kaiser that
      The document sought here was a part of the administrative reasoning process that reached the conclusion embodied in the contracts with Kaiser and Reynolds. The objective facts, such as the cost, condition, efficiency, terms and suitability are otherwise available.

        Id. at 946. Furthermore, he stated that “the demand for this document seeks to lay bare the discussion and methods of reasoning of public officials. . . . This goes beyond the disclosure of primary facts upon which conclusions are based.” Id. at 946-947. (Emphasis added.)

      . See note 9 supra.

      . American Mail Line v. Gulick, 133 U.S.App.D.C. 382, 389, 411 F.2d 696, 703 (1969). See also Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971).

      . The present writer’s concurring opinion in Soucie v. David, 145 U.S.App.D.C. 144, 162, 448 F.2d 1067, 1085 (1971), suggests that where an alternative source of the facts is available to the public, what the litigants may be seeking are not really facts, but evaluation of the facts or advice, which should not be subject to disclosure. This rationale is similarly applicable here.

      . 157 U.S.App.D.C. 340, 484 F.2d 820 (1973).

      . 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973).


text:
    UNITED STATES of America v. Gilbert M. MORGAN, Appellant.
    No. 72-1639.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 7, 1973.
    Decided Jan. 25, 1974.

      Sheldon I. Cohen and Joseph Albert Broderick, Washington, D. C., were on the motion for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Herbert B. Hoffman, and David G. Larimer, Asst. U. S. Attys., for appellee.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and VAN PELT, Senior United States District Judge for the District of Nebraska.

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

   BAZELON, Chief Judge:

In an earlier appeal, 482 F.2d 786 (1973), Morgan claimed, inter alia, that the trial court abused its discretion in denying his motion to withdraw his guilty pleas. We remanded the record because we found it inadequate to resolve Morgan’s contention. On remand, additional information has been brought to the attention of the district court which has moved it to indicate that if permitted by this court it would reconsider its denial of sentencing under the Youth Corrections Act, and appellant’s motion to withdraw his guilty pleas. Accordingly, appellant now moves:

that the mandate on remand to the District Court be amended and enlarged to permit the District Court to reconsider its denial of sentencing under the Youth Corrections Act, and if upon reconsideration, Youth Act is denied, to permit [the] District Court to entertain a motion by appellant to withdraw his guilty pleas and to enter a plea of not guilty by reason of insanity.

We grant this motion subject to the limitations stated herein.

I

A detailed description of the facts in this case is set forth in the opinion in the earlier appeal. Briefly, Morgan was indicted on three counts of first degree murder for slaying his wife, baby and mother-in-law. Initially he indicated his intention to rely on a plea of insanity supported by a report from Saint Elizabeths Hospital stating that on the day of the offense “[Morgan] was suffering from a mental disease [Schizophrenia, Chronic Undifferentiated Type] which substantially affected his mental and emotional processes and substantially impaired his behavior controls and the alleged offenses, if committed by him, were the products of his mental condition.” Shortly after this report was filed, however, the prosecutor informed the court that the examining psychiatrist had “changed his opinion,” and desired to study appellant further. Subsequently, another report was filed by the same psychiatrist to the effect that appellant was “without mental disease now and at the time of the alleged crime.”

In light of the revised report, and the fact that appellant would soon reach his twenty-second birthday, thereby making him ineligible for the Federal Youth Corrections Act, he pled guilty to three counts of first degree murder. Thereupon, he was committed to the Medical Center for Federal Prisoners at Springfield, Missouri, for observation and evaluation under section 5010(e) of the Youth Act. The report filed pursuant to that evaluation indicated that appellant was suffering from “schizophrenic reaction, chronic undifferentiated type” —the same diagnosis as indicated in the initial Saint Elizabeths report—and advised against youth sentencing, in part because of the severity of appellant’s mental illness.

On the basis of this report, appellant moved, before sentencing, to withdraw his guilty pleas so that he might raise an insanity defense. The court denied his motion. It then expressly relied upon the recommendation of the 5010(e) report to impose an adult sentence of twenty years to life.

On appeal, we noted the extremely “questionable circumstances surrounding [appellant’s mental] examinations [at Saint Elizabeths],” and therefore remanded the record for a “thorough hearing” before deciding any issues. Four months later appellant filed the instant motion. The government has filed no opposition. We are advised by appellant’s counsel that appellant was originally sentenced to the Medical Center for Federal Prisoners at Springfield pursuant to the trial court’s “direct-five]” that appellant receive “treatment.” Within one year, however, appellant was transferred from the Medical Center to the federal penitentiary at Terre Haute because the Medical Center found “his overall adjustment improved considerably and he has reached a point in treatment where he needs to try those behaviors which he has learned through therapy in different situations at another institution. His judgment has improved considerably and his overall performance has greatly increased.”

II

Appellant requests: (1) that the district court be allowed to reconsider its denial of a youth sentence; and (2) that if upon reconsideration the court still denies youth sentencing, it be allowed to reconsider appellant’s motion to withdraw his guilty pleas and enter a plea of insanity. We grant appellant’s motion in so far as it allows the district court to reconsider these matters. At this time, however, there is no need for appellant to specify the order in which he will press his motions in the court below. We assume that the district court would prefer that appellant not be bound by a particular choice until he has the opportunity to weigh and consider the information developed at the hearing ordered in our earlier opinion.

From all that presently appears, if the Saint Elizabeths psychiatrist had not “changed his opinion,” the testimony in support of appellant’s insanity defense would have been uncontradicted. Since the hearing we ordered will disclose whether the psychiatrist’s “change [of] opinion” was the product of permissible or impermissible factors, it is essential to appellant’s decision whether to move first for reconsideration of his sentence or for withdrawal of his pleas. Of course, neither this court nor the district court would seek to influence appellant’s choice, but only to insure that it is a knowing and intelligent one.

So ordered.

      . This report was prepared by the same psychiatrist who had examined Morgan at the Youth Center only one year earlier, and who at that time found that “rehabilitation of the man would require many years. . . . [He presents] a very difficult problem as far as treatment and prognosis are concerned.”

      . In such circumstances, the government frequently refrains from actively contesting the insanity plea. Bee D. Chambers, A Report on John Howard Pavillion at Saint Elizabeths Hospital, June 4, 1969, at 8 (“No doctor . . . could remember a single case in which the U. S. Attorney’s office had contested a hospital finding of mental illness and ‘productivity.’ ”) ; Pugh, The Insanity Defense In Operation: A Practicing Psychiatrist Views Durham and Brawner, 1973 Wash.U.L.Q. 87, 89 (“If [Saint Elizabeths] reports that the defendant was insane, the prosecution ceases to contest the issue.”).

      . See 482 F.2d at 793.