author: BAZELON, Chief Judge: WILKEY, Circuit Judge,

text:
    UNITED STATES of America v. Hilton BENN, Jr., Appellant. UNITED STATES of America v. James W. HUNT, Appellant.
    Nos. 71-1501, 71-1547.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 5, 1972.
    Decided Dec. 1, 1972.
    As Amended March 8, 1973.
    Rehearing Denied March 19, 1973.

      Mr. H. Stewart Dunn, Jr., Washington, D. C. (appointed by this Court), for appellant in No. 71-1501.
    Mr. Julian H. Singman, Washington, D. C. (appointed by this Court), for appellant in No. 71-1547.

      Mr. Harry J. McCarthy, Asst. U. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry, and John G. Gill, Jr., Asst. U. S. Attys., were on the brief, for appellee. Mr. Thomas A. Flannery, U. S. Atty. at the time the record was filed, also entered an appearance for appellee.
    Before BAZELON, Chief Judge, Justice CLARK, of the Supreme Court of the United States and WILKEY, Circuit Judge.

       Sitting by designation pursuant to Title 2,8, U.S.C. § 294(a).

   BAZELON, Chief Judge:

Appellants were indicted for rape while armed, rape, and assault with a dangerous weapon. The court dismissed the rape charges and appellants were convicted of assault with intent to commit rape while armed and assault with a dangerous weapon. Appellant Hunt was also convicted on charges of carrying a dangerous weapon. The issues are: (1) whether the trial judge erred in failing to order a psychiatric examination of the mentally retarded prosecutrix for the purpose of the court’s determination of competency or to aid the jury in assessing the credibility of her testimony; (2) whether, in any case, the judge erred in determining that the prosecutrix was a competent witness as a matter of law; and (3) whether appellants were properly convicted on charges of assault with intent to commit rape while armed and assault with a dangerous weapon, arising from the same transaction.

I.

Appellants were arrested in a blind alley by police officers responding to a report that a woman in the alley was screaming for help. At trial, the neighbor who had reported the incident testified that, having been awakened by screams, she saw two men leading a young woman into the alley. After calling and directing police to the alley, she saw two men, dressed similarly to those she had seen earlier, being taken from the scene by the police.

The arresting officers testified that when they entered the alley, appellants were crouched over a nude girl, but upon seeing policemen they straightened up and walked away from her. The victim was described as appearing frightened and nervous and having a bruise over her eye, scratches and handmarks on her neck, and dirt in her hair. She told the officers that both appellants had raped her and that Hunt had struck her on the head with a gun. The police recovered a switchblade knife from appellant Benn and a revolver was found next to one of the victim’s discarded shoes. Other items of her clothing as well as her purse and its contents were scattered about the alley.

The prosecution’s primary witness, the complainant, is a mentally retarded girl of 18. In order to determine her competency, the trial judge held a hearing out of the presence of the jury at which the girl’s father testified that her memory was at times inconsistent and admitted that she did fantasize but that her flights of fancy were always innocuous and she never totally fabricated anything. She is usually able to accurately describe what she has observed and would be likely to retain an impression of a traumatic event, he claimed. On voir dire examination, the prosecutrix expressed an understanding of the meaning of an oath and related a comprehensible narrative of the events surrounding the crime. The judge reserved final ruling on the girl’s testimony pending an evaluation of the degree of corroborative evidence produced, holding only that she had the “rudimentary qualifications to tell what she recalls.” (Tr. 90-1). At trial, the prosecutrix testified that she had been seized by the appellants and dragged screaming into the alley. They removed her clothes and assaulted her. Hunt hit her in the face with a gun; Benn threatened.her with a knife and tried to choke her. In attempting to explain what appellants had done to her, the complainant was unable to define rape but did graphically describe appellants’ acts. After hearing substantial evidence corroborating her testimony, the court found the complainant to be a competent witness. The jury was allowed to hear her testimony as well as evidence concerning her mental condition, albeit with a cautionary instruction.

Although the prosecutrix was examined by a physician on the night of the alleged rape, the doctor did not testify at trial. Without medical or any other corroborative evidence of penetration, the trial judge dismissed the rape charges and submitted to the jury the lesser included offense of assault with intent to commit rape while armed.

II.

The competency of the witness to testify before the jury is a threshold question of law committed to the trial court’s discretion. It remains for the jury, of course, to assess the credibility of the witness and the weight to be given her testimony. Competency depends upon the witness’ capacity to observe, remember, and narrate as well as an understanding of the duty to tell the truth. It also requires an assessment of the potential prejudicial effects of allowing the jury to hear the testimony. Mental retardation may be so severe, capabilities so impaired, and the testimony so potentially prejudicial that it should be barred completely by the judge. Or there may be sufficient indications of a witness’ capacity and of the reliability of her testimony that it should be heard and assessed by the jury, albeit with a cautionary instruction.

A mentally defective rape prosecutrix presents a particularly difficult problem for both judge and jury. It is generally agreed that sexual assault charges by mentally abnormal girls should be subjected to great scrutiny. There is real danger of contrivance or imagination — the events may seem real to the girl even though they exist only in her own mind. Yet that testimony may arouse enough sympathy to make an innocent man the real victim.

To assist the court in making its competency decision, to aid the jury in assessing credibility, or to serve both purposes, the trial judge may order a psychiatric examination to obtain expert testimony concerning the degree and effect of a witness’ disability. Wigmore has suggested that the danger of false accusations and the potential for prejudicial impact is so severe in sexual assault cases that every sex offense complainant should be examined. We think, however, that any such rigid rule is precluded by countervailing considerations. For example, a psychiatric examination may seriously impinge on a witness’ right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all. Since there is no exact measure for weighing these kinds of dangers against the need for an examination, the decision must be entrusted to the sound discretion of the trial judge in light of the particular facts.

In the present case the trial court found that the prosecutrix demonstrated an understanding of her duty to tell the truth and a capability to observe and remember. A comprehensible narrative does emerge from the sum of her testimony. Also, as the cautious trial judge noted before allowing the witness to testify, there was substantial corroboration to her testimony giving extrinsic assurance of its reliability. Finally, the judge had the benefit of the girl’s father’s testimony as to her retardation to assist him. Accordingly, the trial judge’s determination of the prosecutrix’s competency, without a psychiatric examination, will not be disturbed.

The dangers which must be considered in determining whether a mentally retarded rape prosecutrix is a competent witness must also be considered by the jury in assessing her credibility, particularly since “the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. .” The jury may be aided in its task by the results of a psychiatric examination, even when such an examination is not necessary to the judge’s determination of competency. When an examination should be ordered to aid the jury is also a judgment, involving a balancing of need against dangers, which is committed to the discretion of the trial judge. Here, the strong indications of reliability of the prosecutrix’s testimony weigh heavily against the need for an examination. Also, the jury was not left to make its credibility decision without information as to the witness’ defect; it had the frank and comprehensive testimony of the girl’s father to assist it. In these circumstances, we cannot say that the trial judge erred in failing to order a psychiatric examination of the witness to aid the jury.

III.

The applicable rule for determining whether there has been a merger of two charges arising from the same act or transaction was set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

The elements of assault with intent to commit rape while armed are: 1) an assault, 2) with an intent to have intercourse and to achieve penetration against the victim’s will, using such force or threat of force as is necessary to overcome her resistance, 3) while “armed with . . . any pistol ... or other dangerous or deadly weapon.” The proof of these elements would also be proof of the elements of the charge of assault with a dangerous weapon: 1) an assault, 2) with a criminal intent, albeit a more general one, and 3) with a dangerous weapon. The assault with a dangerous weapon count therefore merges with and becomes a lesser included offense to the charge of assault with intent to commit rape while armed, barring the conviction on the lesser offense. Accordingly, the convictions rendered under 22 D.C.Code -§ 502 are vacated and appellants’ other convictions are affirmed.

IV

The writer of this opinion, speaking for himself, believes that another matter deserves comment. Although appellants do not raise the issue, the record before us suggests the possibility that appellants have been denied their constitutional rights to the effective assistance of counsel. As indicated earlier, a physician at D.C. General, a municipal hospital, examined the prosecutrix, at the instance of the police, shortly after the alleged assault. No one, however, called him to testify at appellants’ trial. This apparently disturbed the conscientious and perceptive trial judge who inquired as to the physician’s absence. The following disquieting colloquy ensued:

THE COURT: . . . [T]he thing that concerns me is the fact that although corroboration in a circumstance like this is normally obtained by the testimony of a physician who examined the girl at the hospital. That physician has not been offered as a witness.
Now, I take it from that no one of the three felt the testimony of that physician would strengthen his ease. Of course, the Government has the burden of proof beyond a reasonable doubt on this issue as well as any other issue of fact in this type of case. I am wondering why the Government did not call the doctor.
THE PROSECUTOR: May I tell you, your Honor?
THE COURT: Why certainly.
THE PROSECUTOR: I talked to the doctor on the phone. In fact, I subpoenaed him and he never showed up yesterday. He called and left his phone number where he could be reached.- There was a completely negative medical report, completely negative as to bruises and scratches, abrasions, lacerations around the face, negative in all respects, completely negative as to any abnormality of mental health. I talked to the doctor on the phone and confronted him with the photographs [sic] I had told him I had photographs, described the mental condition as I knew it of the defendant. He conceded to me he had absolutely no idea that night she was retarded. He told me his method of operation was to ask alleged rape victim what injuries she had and only then would he look at them. I combined this with the knowledge that has been public in the papers recently [sic] and other prosecutors that the doctors at D. C. General are giving negative medical reports of rape victims so they won’t be called to court.
THE COURT: Does your office have some responsibility?
THE PROSECUTOR: Yes. Your Honor.
THE COURT: Why don’t you assume that responsibility?

Tr. 227-28.

Unfortunately, the record suggests more questions than it answers. We are left to speculate as to why counsel failed to elicit the examining physician’s exculpatory testimony. It is, of course, possible to construct a scenario in which that decision was a wise tactical choice. It is equally possible to conjecture that counsel failed to investigate the question of the physician’s examination or were simply indifferent to the needs of their clients' cases. Which explanation comports with reality remains unknown.

I am well. aware that there are dangers in attempting to second-guess the professional judgment of trial counsel. But to make the right to the effective assistance of counsel viable requires some assurance that counsel’s trial decisions actually reflect an exercise of his professional judgment. The question is not whether counsel would have done better by different choices, but only whether his trial decisions were informed, deliberate, and rational. In the circumstances of this case, I believe that the decision not to call the examining physician demands some assurance that counsels’ choice met this standard rather than reflecting counsels’ ignorance or indifference.

My brethren point out, however, that there may have been strategic reasons for defense counsel not calling the physician. As I understand it, their disposition rests on the view that they cannot find on the record before us in this case sufficient indication that the standard has not been met.

The Court of Appeals for the Third Circuit recently dealt with an ineffectiveness claim arising out of the unexplained failure of either defense or the prosecution to present a medical report- of the examination of the prosecutrix of a rape charge. Admitting that “there may indeed be various reasons why it was not offered,” the court refused to be lured into the quagmire of constructing after-the-fact explanations to rationalize counsel’s conduct. The court remanded the case because such surmise “cannot take the place of proof.”

Evidence of the inadequacy of trial counsel will often be outside the trial record — in some cases precisely because counsel has been ineffective. For example, when counsel has failed to conduct an investigation, the record may be barren of mention of the witnesses he would have called or defenses he would have raised had he done so. It may be that only the inquiry of the attentive trial judge will bring to light the question of effectiveness of counsel. But, in such circumstances, appellant may ventilate a claim of ineffectiveness without being relegated to collateral attack. A meritorious ineffectiveness claim is available on a motion for a new trial. The claim may be supported by evidence dehors the record without a showing of due diligence.

Accordingly, I would affirm appellants’ convictions (except those rendered under 22 D.C.Code § 502).

V

Nor is the effectiveness of defense counsel the only problem that concerns me in this matter. The court today acknowledges that the charge of rape could not be sustained without the testimony of the examining physician. Plainly, the prosecutor intended neither to call the doctor nor to move for dismissal of the rape charges. It would therefore appear that the prosecution was prepared to gain a conviction without evidence it knew to be essential.

In addition, as the colloquy described above shows, the prosecutor advised the court that “. . . the doctors at D. C. General [are] giving negative medical reports [on] rape victims so they won’t be called to court.” Every citizen has an obligation to come forward with evidence crucial to a criminal prosecution. According to government counsel, there was not only a disregard for that duty, but also an unjustifiable circumvention of legal and professional responsibilities by doctors on the staff of a public hospital. This situation demands an immediate, careful, and impartial inquiry by a representative of the Department of Justice into what action has been taken to insure that the offending doctors, their supervisors, and those city officials charged with the administration of the hospital properly fulfill their responsibilities.

WILKEY, Circuit Judge,

with whom concurs Mr. Justice CLARK.

We concur in Parts I, II and III of Judge Bazelon’s opinion which speaks for the unanimous court. We disagree with Parts IV and V in which Judge Bazelon suggests that a new trial might be appropriate in this case due to the alleged inadequacy of trial counsel. Since our view of the point raised differs from that expressed by Judge Bazelon, we feel obligated to say why.

Judge Bazelon’s concern arises from the failure of the physician who examined the rape victim to appear. “The conscientious and perceptive trial judge” inquired as to the physician’s absence and commented:

Now, I take it from that no one of the three felt the testimony of that physician would strengthen his case. Of course, the Government has the burden of proof beyond a reasonable doubt on this issue as well as any other issue of fact in this type of case.

We suggest that those two sentences of Judge Gasch should have assuaged all of our dissenting colleague’s fears. The Government does bear the burden of proof beyond a reasonable doubt. Without the testimony of a physician, it is much more difficult than otherwise to prove a charge of rape, and the trial court here recognized that by dismissing the original charges of rape while armed and simple rape. The appellants were convicted of assault with intent to commit rape while armed, a lesser included offense, which may very well have been required because of the absence of the m'edical testimony.

When Judge Bazelon says “we are left to speculate as to why, counsel failed to elicit the examining physician’s exculpatory testimony,” he not only ignores Judge Gasch’s statement, he does not give sufficient credit to the astuteness of defense counsel. Without any medical testimony in the record, each defense counsel knew he was highly likely to get his client off on the serious charges of rape while armed or simple rape, and this did occur. Both defense counsel were informed of the physician’s negative written report after examination of the victim. Each confronted the probability that if he introduced the report, it would be followed by the Government’s putting the doctor himself on the stand. Defense counsel had heard the colloquy between the prosecutor and the court, to the effect that the prosecutor “talked to the doctor on the phone and confronted him with the photographs [sic] I had told him I had photographs, described the mental condition as I knew it of the defendant. He conceded to me he had absolutely no idea that night she was retarded.”

If the defense had offered either the physician’s negative report or the physician himself, the physician would have been drastically embarrassed by photographs showing the bruised and cut condition of the face of the victim in contrast to his own completely negative report as to bruises, scratches, etc. The jury might have believed the doctor in contrast to a police officer witness, if that were all the prosecution had to offer, but the photographs would have forced the doctor into admitting in front of the jury what he had told the prosecutor.

He conceded to me he had absolutely no idea that night she was retarded. He told me his method of operation was to ask alleged rape victim what injuries she had and only then would he look at them. I combined this with the knowledge that has been public in the papers recently [sic] and other prosecutors that the doctors at D.C. General or [sic] giving negative medical reports of rape victims so they won’t be called to court.

The physician’s negative report on indicia of rape itself would thus likewise have been impeached, and who knows that the doctor would then have said? Certainly defense counsel did not.

Given this situation as to the physician’s possible testimony, both defense counsel made a calculated trial tactical judgment and did not offer either the physician’s report or the physician in person. It is not for this Court to say whether a witness who was never called would be convincing or not — to do so would not only infringe on defense counsel’s and the jury’s role but would also, amount to little more than idle speculation. The doctor’s testimony was definitely a double-edged sword. The defense counsels’ tactics paid off by securing the dismissal of the rape while armed and the rape charges; a different tactic may have made sure of the conviction of the defendants for rape while armed, a much more serious offense.

It is obvious that the trial judge, one of the most experienced in the courtroom of any on our District bench, thoroughly understood the situation in regard to the trial strategy of the prosecutor and the two defense counsel, made inquiry of it, saw that the defense was fully informed of all the facts, and very properly left it up to two experienced counsel as to what in the best interest of their clients they desired to do about it.

In light of the colloquy between bench and counsel, in light of the complete revelation by the prosecution to the ■ defense not only of the physician’s report but also of his comments in the telephone conversation, we cannot understand Judge Bazelon’s intimation that counsel’s “trial decisions were [not] informed, deliberate and rational.” How could counsel have been better informed ? ' What now will be gained by a remand to the trial court — except the prolongation of the time before these defendants embark upon the punishment a judge and jury have found they deserve?

We have noted that the two defense counsel have been admitted to the bar for 16 and 8 years, respectively, and judging from this record are not novices at defending criminal cases. We have examined their closing arguments and, while neither would rank as a classic at the bar, the facts, issues, and dramatis personae of this case hardly called for the intellectual and forensic powers of a Webster or Darrow.

All convictions, except those rendered ' under 22 D.C.Code § 502, are

Affirmed.

      . 22 D.C.Code ¶¶ 2801, 3202.

      . 22 D.C.Code ¶ 2801.

      . 22 D.C.Code ¶ 502.

      . 22 D.C.Code ¶¶ 501, 3202.

      . 22 D.C.Code ¶ 3204.

      . She was unable, however, to make any facial identifications. Tr. 60.

      . The witness said that “Both of them stuck their privates in me between my legs.” Tr. 191.

      . The physician’s failure to testify is discussed later in this opinion. See Tr. 227-28.

      . Doran v. United States, 92 U.S.App.D.C. 305, 306, 205 F.2d 717, 718, cert. denied, 346 U.S. 828, 74 S.Ct. 49, 98 L.Ed. 352 (1953).

      . District of Columbia v. Armes, 107 U.S. 519, 521-522, 2 S.Ct. 840, 27 L.Ed. 618 (1882); In re Penn, 143 U.S.App.D.C. 248, 251-252, 443 F.2d 663, 666-667 (1970).

      . Watson, Psychiatry for Lawyers at 95 (1968); Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L. Rev. 53, 74 (1965); see e. g. Overholser, The Psychiatrist and the Law 53-54 (1953); 3 Wigmore, Evidence 924(a) (3d ed. 1940).

      . The basis for ordering such examinations stems from the trial court’s inherent power to conduct those inquiries necessary to a full and fair adjudication. State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958); see United States v. Klein, D.C.D.C., 271 F.Supp. 506 (1967); aff’d sub nom, Hamilton v. United States, 139 U.S.App.D.C. 368, 433 F.2d 526 (1970); Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (1966).
      Although the trial counsel’s passing reference to “scientific evidence or medical evidence” (Tr. 38-39) does not constitute a motion for the court-ordered examination of the witness, such a motion was unnecessary since the court may sua sponte call its own expert witnesses. Fed.R.Crim.P. 28(a).

      . 3 Wigmore, Evidence 924(a) (3d ed. 1940); accord ABA Committee on Improvement of the Law of Evidence, Report (1937-38) ; Guttmacher, Psychiatric Evaluation of Offenders, 2 Bull. World Health Org. 243 (1950).

      . Wilson v. United States, 106 U.S.App.D.C. 226, 227, 271 F.2d 492, 493 (1959) (rejecting the Wigmore proposal).

      . After conducting an examination of the prosecutrix and hearing testimony from her father out of the presence of the jury, the judge found that she had the “rudimentary qualifications to tell what she recalls” ; she was clearly in a position to observe and seems to have recalled with some clarity the events which were the subject of her testimony.

      . See Proposed Rules of Evidence, Notes to ¶ 6-01, 46 F.R.D. 285 (1969).

      . Napue v. Ill., 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); cf. Giles v. Md., 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).

      . People v. Russel, 69 Cal.2d 187, 193-195, 70 Cal.Rptr. 210, 216-218, 443 P.2d 794, 800-801, cert. denied, 393 U.S. 864, 89 S.Ct. 145, 21 L.Ed.2d 132 (1968). But cf. State v. Falcetano, 107 N.J.Super. 375, 258 A.2d 391 (1969).

      . See, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

      . United States v. Bryant, 137 U.S.App.D.C. 124, 133, 420 F.2d 1327, 1336 (1969); Allison v. United States, 133 U.S.App.D.C. 159, 163, 409 F.2d 445, 449 (1969).

      . 22 D.C.Code ¶ 3202.

      . See United States v. Hill, 152 U.S.App.D.C. 213, 470 F.2d 361 (1972) (assault with a dangerous weapon conviction vacated when appellant also convicted of assault with intent to kill while armed as a result of the same event) ; United States v. Bryant, 137 U.S.App.D.C. 124, 132, 420 F.2d 1327, 1335 (1969) (assault is a lesser included offense to assault with intent to commit rape); cf. United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604 (1970).

      . Compare Ingram v. United States, 122 U.S.App.D.C. 334, 353 F.2d 872 (1965) with United States v. Hill, 152 U.S.App.D.C. 213, 470 F.2d 361 (1972). In Ingram this Court held that there was not a merger of charges of assault with a dangerous weapon and assault with intent to kill arising out of the same act. Since the former count requires proof of the use of a dangerous weapon and the latter proof of an intent to kill, “each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1934). Thus separate convictions were permissible. We also held, however, that convictions on both counts would support concurrent but not consecutive sentences, because doubts as to whether Congress meant to pyramid punishments should be resolved not only in favor of lenity but also consistent with a reasonable legislative intent. But cf. 23 D.C.Code § 112 (Supp. V 1972).
      In Hill, we held that convictions on charges of both assault with a dangerous weapon and assault with intent to kill while armed would result in the lesser charge being vacated even though, as here, concurrent sentences had been imposed.

      . We do not find it necessary to remand these cases to the District Court for re-sentencing on the greater offense. The cases in which we have followed such a procedure have involved convictions under the Federal Bank Robbery Act, 18 U.S.C. § 2113, hence been governed by Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). United States v. Parker, 143 U.S.App.D.C. 57, 442 F.2d 779 (1971); Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (1969).

      . My brothers speculate that photographs showing the “bruised and cut” condition of the victim’s face could have “drastically embarrassed” the physician. Opinion of Judge Wilkey, infra at of 155 U.S.App.D.C., at 1136 of 476 F.2d. But the following colloquy indicates that there is a serious question as to what these photographs do show:
      THE PROSECUTOR: Directing your attention to Government’s Exhibit No. 11 for identification, what, if any injuries did you — was intended to be shown?
      THE COURT: Doesn’t the picture speak for itself?

        % 5;*
      I am sure that is the rule . [as to laying the foundation for the introduction of photographs].
      * * M: * #
      The Court will ask whether the picture is a fair and accurate representation of what you saw?
      THE POLICE PHOTOGRAPHER: These pictures show partly what was taken and due to the condition of the camera, it didn’t show fully exactly the darkness of the bruise, how it was, the size of the bruise, especially the one over her left eye.
      Tr. 150.

      . The doctor would have reported not only that there was no indication of penetration but also that there were no signs of a struggle on the person of the victim. The prosecutrix testified that she had been struck in the face with a pistol by Hunt and choked by Benn. Police witnesses corroborated this story by describing a bruise over the victim’s eye, allegedly a result of the pistol whipping, and scratch marks on her neck, as might have resulted from an attempted strangling. The physician’s contrary testimony could conceivably have not only created a substantial doubt as to the truthfulness of the complainant, the prosecution’s key witness, but also refuted the contention that there was an assault. There may, of course, be an assault without physical contact, but the prosecution in this case sought to prove a physical striking and resulting injuries.
      Hunt was linked to the gun found at the scene primarily by the prosecutrix’s testimony about his use of the weapon to strike her and the corroborating evidence of her facial injury. The physician’s testimony as to the lack of any such mark might have been exculpatory as to this element of the prosecution’s case as well.

      . See United States v. Mitchell, 104 U.S.App.D.C. 57, 65-66, 259 F.2d 787, 795-796 (1958) (Judge Fahy dissenting) (the court cannot bar inquiry into counsel’s exercise of his professional judgment and yet protect the client’s constitutional right); State v. White, 5 Wash.App. 283, 487 P.2d 243, 246 (1971) (in examining the acceptable boundaries of the exercise of judgment by counsel, the court could find ineffectiveness if counsel’s choice of trial tactics was not deliberate, no reasonable lawyer would have so acted, or the decision was a result of ignorance of the law or inadequate preparation).

      . Since, as my colleagues recognize, the charge of rape was never a threat, the defense had nothing to lose and everything to gain by directing all their efforts to the single purpose of securing an acquittal on the lesser included offenses.

      . My brothers observe that the defense counsel “are not novices at defending criminal cases.” Opinion of Judge Wilkey, infra, at - of 155 U.S.App.D.C. at 1137 of 476 F.2d. But counsels’ experience is hardly proof of effectiveness. The issue is what they did in this case.
      And I find little else in the record of this case that is reassuring as to counsels’ effectiveness. When asked how long he needed for his summation, one of the defense attorneys engaged in the following exchange with the court:
      THE COURT: I will give you—
      COUNSEL: I would like to move my car before 5 :00.
      THE COURT: I will allow ten minutes for each defendant unless you want more.
      COUNSEL: No, I think that enough.
      THE COURT : If you want it, you may have it.
      COUNSEL: I think I will be stretching it in ten minutes. .
      I hope the Court of Appeals doesn’t look upon the summation as a Hammond situation. ... I have enough trouble with the Court of Appeals that I was hollering and I gave a Hammond argument.
      THE COURT: I am not asking you to talk for a half an hour..... Tr. 236-7
      When counsel finally gave his argument, it was little more than pro forma.

      . Opinion of Judge Wilkey, infra, at 16-18.

      . United States ex rel. Kent v. Maroney, 435 F.2d 1020 (3d Cir. 1970).

      . Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). See also, United States v. Washington, 154 U.S.App.D.C. _, 475 F.2d 357 (1973).

      . See, e. g., United States v. Thompson, 154 U.S.App.D.C. _, 475 F.2d 931 (1973); United States v. Moore, 432 F.2d 730, 739 (3d Cir. 1970); Tucker v. United States, 235 F.2d 238 (9th Cir., 1956).

      . People v. Ibarra, 60 Cal.2d 460, 34 Cal. Rptr. 863, 386 P.2d 487 (1963) (Justice Traynor, writing for the court, found counsel had been ineffective where he failed to move for the suppression of evidence due to a misapprehension of the applicable law) ; see, Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729 (1958) (Judge Bazelon dissenting) (the dissent would have remanded the case for a hearing as to the reason for an unexplained failure to assert an insanity defense) .

      . In United States v. Simpson, 154 U.S.App.D.C. _, 475 F.2d 934 (1973) (Bazelon, Chief Judge, dissenting), the dissent suggested a mechnical device, a preparation report to be submitted by counsel before his client pleads or at the close of trial after the verdict had been rendered, to provide the trial and appellate courts with information about counsel’s effectiveness. See Id. at _, 475 F.2d at 940 and Appendix.

      . United States v. Benjamin Thompson, 154 U.S.App.D.C. _, 475 F.2d 931 (1973); United States v. Smallwood, 153 U.S.App.D.C. 387 at 392, 473 F.2d 98 (1972) at 103 (Bazelon, Chief Judge concurring); see Fed.R.Crim.P. 33; Marshall v. United States, 141 U.S.App.D.C. 1, 5 n. 11, 436 F.2d 155, 159, n. 11 (1970). The judgment as to whether there is a meritorious claim warranting such a motion should be made by appellate counsel on the basis of an investigation rather than by this court on the basis of pure speculation.

      . The pendency of an appeal does not inhibit the filing of a motion for a new trial, thus limiting its usefulness to appellate counsel. Fed.R.Crim.P. 33 states, . . if an appeal is pending the court may grant the motion only on remand of the case.” It is, however, settled law in criminal cases that the motion can be made without a remand and, if the district court indicates that it will grant the motion, then a motion for remand is made in the appellate court. Thus, when counsel on appeal finds an ineffectiveness issue as to which there is an inadequate record, he should file a motion for a new trial in the district court before the appeal is heard in this court. See Smith v. Pollin, 90 U.S.App.D.C. 178, 179, 194 F. 2d 349, 350 (1952).


source: Caselaw Access Project

author: WILKEY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. Walter J. CHAVIS, Jr., Appellant.
    No. 72-1532.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 7,1973.
    Decided April 4, 1973.

      Robert H. Turtle, Washington, D. C. (appointed by this Court) for appellant. Richard C. Johnson, Washington, D. C. (also appointed by this Court), was on the brief for appellant.
    Richard L. Beizer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Robert J. Higgins, Asst. U. S. Attys., were on the brief for appellee.
    Before McGOWAN, TAMM and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Appellant was charged with four counts of assault with intent to commit armed robbery and related offenses. There is little doubt on the facts, and appellant did not contest at trial and does not contest here that he committed the acts with which he is charged. His sole defense was that he was legally insane at the time of the offensé. His appeal is based on the allegation that he did not receive adequate psychiatric assistance to prepare this defense. Due to the absence in the record of certain critical information, we cannot determine at this time whether appellant was improperly denied psychiatric assistance. We therefore remand the case to the trial court to develop evidence and permit explanation of certain points presently obscured.

I. Evidence and Trial Court Action

Appellant has a history of psychological instability. In 1969 a military doctor recommended that he be released from the Army in part because of an observed propensity toward psychiatric illness. In 1970, after undergoing an operation, appellant was confined to the psychiatric ward of a Veterans Administration hospital because of violent, irrational outbursts. He was diagnosed as having an “anti-social personality” and being a “borderline schizophrenic.” On one occasion following his discharge from the VA hospital police had to be called to subdue appellant who was acting in an irrational manner. He was immediately taken to the psychiatric ward of the D. C. General Hospital where he spent 16 days; appellant’s admission was based upon a conclusion that he was “mentally ill.” Following his discharge appellant allegedly experimented with various drugs, including LSD. On 5 January 1971, four months after being released from the psychiatric ward of D. C. General, appellant committed the acts which led to his arrest.

In April 1971 appellant’s counsel moved to have appellant examined pursuant to 24 D.C.Code § 301 to determine his competency to stand trial and his mental condition as of the date of the charged offenses. The motion was granted and appellant spent 15 days being examined in St. Elizabeths, a Government-operated psychiatric hospital. The St. Elizabeths report stated that appellant was competent to stand trial and was not suffering from a mental disease or defect on the date of the offense. In November 1971 appellant’s attorney moved for a second examination in order to verify the initial findings of the first court-ordered examination, and to permit the defense to determine if grounds existed to assert a defense of insanity. The motion was granted and appellant was referred to Legal Psychiatric Services, an agency of the Government. Appellant was examined for about 50 minutes by Dr. Maguigad of LPS, who reported that, while appellant was presently competent to stand trial, he had been “suffering from Schizophrenia Undifferentiated Type which substantially imparied [sic] his behavior at. the time of alleged offense. . . . ”

Following this report appellant’s attorney wrote a letter ex parte to the trial judge, moving to have Maguigad appointed to serve as a defense witness under the provisions of 18 U.S.C. § 3006A, which provides for the allocation of money to pay for expert witnesses for indigent defendants. This request apparently was made because defense counsel felt that additional examinations by Dr. Maguigad would be necessary for him to serve as an effective witness, and that consultation between the doctor and defense counsel would be necessary in order to prepare an effective presentation to the jury.

The trial judge took no action on the motion until a March 1972 calendar call, at which time appellant’s attorney in open court and before the prosecutor inquired as to the disposition of his request. Upon hearing that appellant had requested expert assistance, the prosecutor vigorously opposed the motion as being unnecessary and a waste of money in light of the psychiatric examinations already undertaken. The court ruled that Dr. Maguigad could not be appointed under § 3006A, ostensibly because there might be an apparent conflict of interest between his role as a court-appointed independent expert and his acting as a defense witness under § 3006A. Appellant immediately applied alternatively for another expert to be appointed; the Government opposed this as well. The court declined to appoint another doctor, saying:

We are not going to continually appoint more and more psychiatrists. This is it. He has been examined by two psychiatrists .... Your motion is denied.

The stated basis for appellant’s desire to receive more examinations from either Dr. Maguigad or another doctor was that counsel believed that Dr. - Maguigad’s 50-minute examination would have little weight in the jury’s mind when countered by the 15 days of examinations conducted by St. Elizabeths, the results of which supported the Government’s position.

Indeed, appellant’s fears were borne out at trial. The Government seriously impeached Dr. Maguigad, both on his qualifications as an expert and his familiarity with the case. At the conclusion of the cross-examination of Dr. Maguigad, appellant’s attorney moved for a mistrial on the ground that appellant had been unlawfully denied psychiatric assistance sufficient to prepare an adequate defense. The trial court denied the motion. The jury subsequently found appellant guilty on all counts and appellant was sentenced to a jail term.

II. Failure to Appoint Under Section S006A

A. The Statutory Scheme

18 U.S.C. § 3006A is designed to provide indigent defendants in criminal cases with representation and expert service. It is clear that the Act comprehends within its definition of “expert services” the assistance of a psychiatric expert in preparing and presenting an insanity defense. The test to be applied in determining whether the court should provide such service consists of two factors: whether the defendant is financially unable to obtain the required service himself, and whether the service is necessary to the preparation and presentation of an adequate defense. A defendant’s indigency and need for assistance under § 3006A is to be determined by an ex parte proceeding. There is no dispute in this case that appellant is financially unable to obtain the required service himself. The case turns on whether or not the service requested is necessary to an adequate defense.

The purpose and nature of a § 3006A appointment is entirely different from an examination conducted by an order of the court. The latter is conducted to serve the court in a completely nonpartisan manner. While the opinions of such an expert may assist one side or the other in a case, this is not the primary purpose for the expert’s appointment. The expert appointed under § 3006A, however, is not originally and primarily an aide to the court, but rather is intended to serve the interests of the defendant. The Fifth Circuit has noted this distinction in analyzing the effect of examinations conducted under provisions analogous to the statute under which defendant was referred to St. Elizabeths and sent to PLS:

Sec. 4244 concerns examination to determine if the defendant is competent to stand trial. The court appoints a psychiatrist who examines the accused and reports to the court. Rule 28 authorizes the court to appoint its own expert witness, who is expected to be neutral and detached. He advises the parties of his findings. See Rule 28 and Wright, Federal Practice and Procedure, § 452. The § 3006A(e) expert fills a different role. He supplies expert services “necessary to an adequate defense,” which embraces pretrial and trial assistance to the defense as well as availability to testify. His conclusions need not be reported to either the court or the prosecution.

It has been established in this Circuit that under some circumstances § 3006A commands that psychiatric examinations be ordered and that the statute envisions that experts will aid in the preparation for trial as well as testify at the trial itself. Heretofore it has not been necessary to delineate the precise parameters of the requirements and the trial court’s discretion in making such appointments.

It is clear that court-ordered psychiatric examinations such as the first two conducted in this case are not necessarily sufficient so that no examinations need be provided under § 3006A. The Eighth Circuit, for example, in United States v. Schultz, held that the trial judge had abused his discretion in refusing to order the appointment of a § 3006A expert. In that case the defendant had a history of psychopathic behavior. Likewise in Schultz the defendant was committed for observation in a Government hospital to determine his competency to stand trial. This report indicated that defendant was competent but that defendant suffered from some form of psychological disturbance. After noting that this was apparently a case of first impression, the court held that it was error under these circumstances for the trial court to deny defendant’s request under § 3006A for psychiatric assistance in preparing its case.

It cannot be true, however, that a defendant always has a right to a psychiatrist under § 3006A. Under some circumstances the court would have the responsibility to prevent abuses from defendants asking for multiple examinations. Thus the Fifth Circuit has noted that “[t]he functions of the two [types of] appointments are different, but the court has a responsibility to prevent abuse of the availability of appointive processes.”

The answer to this question of when psychiatric assistance is “necessary” depends upon two variables. First, a judge should consider the likelihood that an insanity defense is warranted. Obviously a court should not be required to appoint a psychiatrist if there is absolutely no reason to think that such a plea would be successful. A trial judge’s evaluation of this factor could, among other things, be based upon a prior medical history of psychological imbalance, testimony by those acquainted with the defendant regarding his actions and apparent mental state, or the judge’s own evaluation of the defendant’s demeanor. Second, the judge should consider whether the defendant has received sufficient psychiatric assistance from other sources; an adequate defense under some circumstances could be prepared based on the findings, assistance and testimony of a court-appointed psychiatrist. The issue does not revolve around the technical fact of under what provision a psychiatrist is appointed, but rather the substantive issue of whether the defendant received the assistance “necessary to an adequate defense.” Such assistance could come from the testimony and aid of court-appointed psychiatrists, independent charitable institutions, or even a concerned independent psychiatrist who is donating his time to the ends of justice. These and other sources of psychiatric assistance might, under some circumstances, provide a defendant with the expert assistance needed to prepare “an adequate defense” and thereby render an appointment under § 3006A “unnecessary.”

The record before us in this case provides ample information regarding the likelihood that an insanity defense might be warranted. A fairly complete description of appellant’s psychiatric history was presented at trial and was the subject of substantial enlightening debate by the attorneys. This court is, therefore, able to evaluate this element of “need” in reviewing the trial court’s refusal to appoint a psychiatrist under § 3006A.

There is, however, relatively much heat but little light in the record regarding the second element to be considered —whether appellant actually received expert assistance sufficient for the preparation of an adequate defense. We know from the record that Dr. Maguigad did testify at trial on behalf of defendant. This standing alone does not necessarily mean that defendant received the psychiatric assistance necessary to an adequate defense. As every trial lawyer knows, there is much more to presenting a defense than simply presenting testimony. Some testimony is more convincingly presented than other, and no lawyer would rely on a witness to simply “tell his story.” Particularly with expert witnesses, ample pretrial study by the expert and consultation between lawyer and witness are usually invaluable. The record also reflects that defendant’s lawyer strenuously protested that Dr. Maguigad had been either unwilling or unable to examine defendant aside from the initial 50-min-ute interview, to spend time familiarizing himself with defendant’s medical history, or to consult with defendant’s lawyer regarding the substance of what would be testified to at trial. On the state of the record before us we do not know if these allegations are true or, if true, whether they affected the quality of the defense to such an extent that it must be described as “inadequate.” In order to illuminate the situation we remand the case for further proceedings to develop facts through adversary proceedings on certain elements of the case.

B. Areas of Inquiry

To assist the trial judge and attorneys in this inquiry we outline the areas and issues which are necessary to be explored. It is not our intention to limit inquiry to these matters; the proceeding should inquire into any and all matters that would be relevant to determining the obscured issues in this case.

1. With regard to Dr. Maguigad:

(a) His relations with appellant.-— Did he have further consultations with appellant prior to trial? If so, what was the nature of these consultations? If not, why did he not have further consultations? Was Dr. Maguigad asked by appellant’s attorney to examine appellant further? Did Dr. Maguigad ever state that further examinations would be necessary or desirable in rendering his expert judgment at trial? Does he now so believe? If appellant could have paid for additional examinations, would he have examined the appellant further ?

(b) His relationship with appellant’s attorney. — Did Dr. Maguigad consult with appellant’s lawyer in the preparation of appellant’s defense ? If so, what were the time, nature, and extent of those consultations? If not, why not? Did appellant’s lawyer request that Dr. Maguigad consult with him prior to trial? If appellant could have have paid for Dr. Maguigad’s consultation prior to trial, under those circumstances would he have consulted with appellant’s lawyer?

(c) Nature of Dr. Maguigad’s relationship with LPS. — Does Dr. Maguigad work for LPS full-time or does he have a separate practice? If Dr. Maguigad had examined appellant further or consulted with appellant’s lawyer, would he have been paid by LPS for his services? Would LPS have received the compensation? If he did not examine or consult, was it because of any policy on the part of LPS that forbids more than one examination of a patient referred by a court? If Dr. Maguigad had examined appellant again, would it have been in his capacity as an employee of LPS or as a private practitioner?

2. With regard to what efforts appellant’s trial counsel made to obtain further consultation and assistance from Dr. Maguigad: Did he ask that Dr. Maguigad consult with him regarding the preparation of the case? If so, what was Dr. Maguigad’s response? Did appellant’s counsel have any contact with any other employee of LPS on this matter? If so, what was the nature and extent of this contact?

3. There are some matters that can best be elucidated by the head or another officer authorized to speak for Legal Psychiatric Services. Does LPS have a policy regarding the extent of time its doctors may spend with a patient referred by court? Does LPS have a policy that prohibits its doctors from taking as outside patients anyone first examined by that doctor as a referral by a court? Does LPS permit its doctors to consult with attorneys in the preparation of a defense that is based in part on a report rendered pursuant to a court order? Is the doctor paid by LPS for such services?

It is obvious that at least Dr. Maguigad, appellant’s trial counsel, and an authoritative representative of Legal Psychiatric Services will need to be examined.

III. Need for an Ex Parte Hearing

Section 3006A states that eligibility for appointment under the section will be determined in an ex parte proceeding. The Fifth and the Tenth Circuits have repeatedly held that failure to accord an ex parte hearing is reversible error. We agree that the statutory scheme means that not to provide an opportunity for an ex parte hearing on the matter does constitute error.

We are satisfied that the 15 February-1972 letter of appellant’s trial counsel to the trial judge was an ex parte submission of the issue to the trial judge. The matter was only raised at the 20 March 1972 calendar call because the request had not yet been acted on. The attendance and participation of the prosecutor at the disposition of appellant’s request was in violation of the statute’s requirements.

Trial counsel did not, however, object at the time to the presence of the prosecutor, or to the prosecutor’s repeated intervention in a matter which by the plain language of the statute was definitely none of his business. However, as noted above, we do not yet know to what extent, if any, appellant was prejudiced by the failure to appoint a psyciatrist. It seems likely that the degree to which appellant’s rights were affected by the failure to conduct an ex parte hearing may be closely related to the degree of prejudice caused by the failure to appoint a psychiatrist under § 3006A. We, therefore, reach no conclusion and make no holding on this issue at this time.

IV. Assault with a Dangerous Weapon

Appellant was charged and convicted of both “assault with intent to rob while armed” and “assault with a dangerous weapon.” It has been recently established in this Circuit that assault with a dangerous weapon is a lesser included offense of assault with intent to rob while armed. At this time we therefore vacate appellant’s conviction for assault with a dangerous weapon.

V. Conclusion

Appellant’s conviction for assault with a dangerous weapon is hereby vacated. We express no opinion at this time on the validity of the convictions on the remaining three counts. The record in this case is remanded to the District Court for a supplementary evidentiary inquiry on the matters discussed in Part II of this opinion. After receipt of the supplementary record this court will decide all remaining issues.

So ordered.

      . Walter J. Chavis, Jr., was indicted in the United States District Court for the District of Columbia on 6 April 1971, on four counts of (1) assault with intent to commit robbery while armed (22 D.C. Code §§ 501 & 3202) ; (2) assault with intent to commit robbery (22 D.C.Code § 501) ; (3) assault with a dangerous weapon (22 D.C.Code § 502) ; and (4) carrying a dangerous weapon (22 D.C.Code 3204).

      . Services other than counsel. — Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his case may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant. The court may, in the interests of justice, and upon a finding that timely procurement of necessary services could not await prior authorization, ratify such services after they have been obtained.
      18 U.S.C. § 3006A(e) (1970).

      . Tr. at 7.

      . Defendant’s trial counsel at the hearing on 20 March 1972 was no doubt well aware of our decision of 3 June 1971 in United States v. Schappel, 144 U.S.App.D.C. 240, 445 F.2d 716, in which we had upheld a trial court’s determination from conflicting psychiatric testimony that the defendant was not mentally incompetent at the time of the robbery, on precisely the same ground feared by defense counsel here, i. e., that the examination at St. Elizabeths by the experts holding the accused competent was much more thorough and over a longer period of time than that afforded the defense experts, whose opinion was that the accused was incompetent. Further, the Government prosecutor in Chavis was the same counsel who had prevailed as Government appellee’s counsel in Schappel on this argument.

      . Appellant argues that having argued against permitting an appointment under § 3006A on the grounds that the previous examination was adequate, and that Dr. Maguigad was highly qualified, at trial the Government should not be permitted to impeach Dr. Maguigad, particularly in regard to his professional qualifications. This is one of several issues with which we shall deal after receiving the additional evidence developed by the trial court on remand.

      . This proposition is true in all Circuits that have ruled on the subject and we do not understand the Government to contradict this. United States v. Theriault, 440 F.2d 713, 715-716 (5th Cir. 1971); United States v. Taylor, 437 F.2d 371, 377 (4th Cir. 1971); United States v. Schultz, 431 F.2d 907, 911-912 (8th Cir. 1970).

      . The statute is as follows :
      Upon finding, after appropriate inquiry in an ex parle proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant.
      18 U.S.C. § 3006A(e) (1970) (emphasis added).

      . The text of the statute under which appellant was referred to St. Elizabeths and later to PLS makes it clear that its provisions are designed to aid the court:
      If it appears to a court having jurisdiction of—
      (1) a person arrested or indicted for, or charged by information with, an offense, or
      (2) a child subject to a transfer motion in the Family Division of the Superior Court of the District of Columbia pursuant to section 16-2307, that, from the' court’s own observations or from prima facie evidence submitted to it and prior to the imposition of sentence, the expiration of any period of probation, or the hearing on the transfer motion, as the case may be, such person or child (hereafter in this subsection and subsection (b) referred to as the “accused”) is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense, the court may order the accused committed to the District of Columbia General Hospital or other mental hospital designated by the court, for such reasonable period as the court may determine for examination and observation and for care and treatment if such is necessary by the psychiatric staff of said hospital. If, after such examination and observation, the superintendent of the hospital, in the case of a mental hospital, or the chief psychiatrist of the District of Columbia General Hospital, in the ease of District of Columbia General Hospital, shall report that in his opinion the accused is of unsound mind or mentally incompetent, such report shall be sufficient to authorize the court to commit by order the accused to a hospital for the mentally ill unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial or to participate in transfer proceedings. If the court shall find the accused to be then of unsound mind or mentally incompetent to stand trial or to participate in transfer proceedings, the court shall order the accused confined to a hospital for the mentally iU.
      24 D.C.Code § 301(a) (Supp. V, 1972).

      . Godbold, Circuit Judge, in United States v. Theriault, 440 F.2d 713, at 715 (5th Cir. 1971). In Theriault the defendant had been examined by a psychiatrist on the authority of 28 Fed.R.Crim.P. and 18 U.S.C. § 4244 (1970). Appellant here was examined under the provisions of 24 D.C.Code § 301(a) (Supp. V, 1972) because the provisions of that statute in this context displace the statute and rule in-, volved in the Fifth Circuit case. See 24 D.C.Code § 301(h) (Supp. V, 1972). The D.C. provision and the generally applicable federal scheme are sufficiently simiar, however, so that in this context the Fifth Circuit’s rationale is applicable to our case.

      . United States v. Schappel, 144 U.S.App.D.C. 240, 243 n. 7, 445 F.2d 716, 719 n. 7 (1971).

      . 431 F.2d 907 (8th Cir. 1970).

      . United States v. Theriault, supra, 440 F.2d at 715 n. 3.

      . See text of statute at footnote 2, supra.

      . Marshall v. United States, 423 F.2d 1315, 1318 (10th Cir. 1970); United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971); United States v. Hamlet, 456 F.2d 1284 (5th Cir. 1972) (per curiam); United States v. Sutton, 464 F.2d 552 (5th Cir. 1972) (per curiam).

      . United States v. Benn, 155 U.S.App.D.C. _, 476 F.2d 1127 (1972).


author: McGOWAN, Circuit Judge: ROBB, Circuit Judge MacKINNON, Circuit Judge

text:
    UNITED STATES of America v. Carl M. REED, Appellant. UNITED STATES of America v. Curtis HOSTON, Appellant.
    Nos. 23044, 23661.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 25, 1971.
    Decided March 9, 1973.

      Marilyn Cohen, Washington, D. C., for appellant in No. 23,044. Paul J. Spiegelman, Washington, D. C. (appointed by this court) also argued for appellant. James L. Kurtz and Henry F. Harding, Washington, D. C. (both appointed by this court) were on the brief for appellant. Barbara Bowman and John Perazich, Washington, D. C., also entered appearances for appellant in No. 23,044.
    Marilyn Cohen, Washington, D. C., for appellant in No. 23,661. Nathan L. Silberberg, Washington, D. C. (appointed by this court) also argued for appellant in No. 23,661.
    Brian W. Shaughnessy, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and David C. Woll, Asst. U. S. Attys., were on the brief, for appellees. Roger C. Spaeder, Asst. U. S. Atty., also entered an appearance for appellee in No. 23,044.
    Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

      . The unqualified character of that language has unquestionably created difficulties for the sentencing courts. Its literalness might be taken to require YCA disposition in virtually every case, since a conscientious judge, who has wrestled with all the information available to him and who regretfully inclines to the view that an adult sentence is the better course, may feel that he cannot honestly make a finding that the defendant would derive no conceivable benefit of any kind from the other alternative. We noted in Coefield, however, that this language occurs in the context of a statute in which Congress has manifested no intention to foreclose absolutely the exercise of discretion by the sentencing judge. And in Coefield, recognizing the infinite variety of factors which may frequently look in opposite directions in the same case, we disclaimed any purpose “to spell out all the grounds that might form a basis for an affirmative ‘no benefit’ finding.”

   McGOWAN, Circuit Judge:

These two criminal appeals were consolidated with a third — No. 24,085, United States v. Coefield, 155 U.S.App.D.C. _, 476 F.2d 1152, decided February 6, 1973,—for hearing and disposition by the court en banc. The reason for this grouping of the cases for en banc treatment was that each involved a challenge to the imposition of an adult sentence as distinguished from commitment under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq.; and the court thought it important to resolve definitively a recurring problem which has characterized the administration of that statute. The court has now spoken to this end in Coefield; and it remains to decide these two companion appeals in the light of the principles enunciated in that decision. As in Coefield, we affirm the convictions in each case, vacate the sentences, and remand for further proceedings consistent with this opinion.

I

No. 23,044

Appellant Reed was initially indicted in 1968 under D.C.Code provisions for armed robbery, robbery, assault with a dangerous weapon, and carrying a dangerous weapon, all in connection with the holdup of a tavern. On September 9, 1969, he pleaded guilty to the robbery count. On the basis of a pre-sentence report which noted that Reed was eighteen years old, had no prior criminal record, was “at the crossroads of life and what is done to him at this particular time will most likely determine which way he is going to go in the future,” the court committed him to treatment and supervision in a youth facility under Section 5010(b) of the Youth Corrections Act.

On November 1, 1969, appellant’s pro se motion to withdraw his guilty plea was granted. He was then tried under the original indictment before a jury, with a different judge from the one who had taken his guilty plea. He was convicted of armed robbery, assault with a dangerous weapon, and carrying a dangerous weapon. Despite his counsel’s plea for leniency in light of his youth and record, and despite a second presentence report recommending treatment in a youth institution, the court, without comment, sentenced appellant to from three to nine years in a penal institution. The entire substantive portion of the sentencing proceedings is as follows:

[DEFENSE ATTORNEY:] . . . I would like to say on behalf of Mr. Reed he is a very young man. Apparently he had no involvements with the law as a juvenile and it is rather surprising and rather somewhat shocking that he should get involved in this type of a case. I did have some contact or some information respecting his employment while he was out on bond and it would seem to be good. Apparently some other people think somewhat highly of him. This particular case unfortunately, as Your Honor knows, he did enter a plea and for what reason he withdrew that plea, I don’t know. I have an idea perhaps that maybe upon learning that the fellow that was arrested with him, the juvenile that was arrested with him, got over in Juvenile Court might have motivated him to think that maybe he could get something similar. All in all I ask Your Honor to be as lenient as you feel that you can under the circumstances.
THE COURT: Mr. Reed, do you have anything to say before the Court imposes sentence in your case ?
THE DEFENDANT: No, I don’t.
THE COURT: In Criminal Case 545-68 the Court sentences the defendant Carl M. Reed to be incarcerated for a period of not less than three nor more than nine years in a penal institution to be designated by the Attorney General or his authorized representative. You have ten days within which to note an appeal.
[DEFENSE ATTORNEY:] Thank you, Your Honor.

No. 23,661

Appellant Hoston was, on July 30, 1969, found guilty by a jury of armed robbery, assault with a dangerous weapon, and carrying a dangerous weapon— charges growing out of a robbery of an A & P Store. Following his conviction, appellant was on October 22, 1969, committed by the trial judge, under Section 5010(e) of the Youth Corrections Act, for a 60-day period of observation, study, and report. Earlier, in the month after his conviction, appellant had sought and received authority from the District Court for a psychological evaluation by Mr. Harold Grant, Staff Psychologist of the Offender Rehabilitation Project.

Appellant came before the trial judge for sentencing on December 12, 1969. Those proceedings in their entirety are as follows:

THE COURT: Mr. (Defense Counsel), I arranged for my chambers to make available to you the report from the Youth Center. Have you had a chance to see it ?
[DEFENSE COUNSEL]: I have, Your Honor.
THE COURT: I have also before me, in addition to that, the Offender Rehabilitation Report and a psychological study by Grant, as well as the presentence report. I have been over these matters with some care.
Is there anything you wish to say to me before sentence is imposed ?
[DEFENSE COUNSEL]: No, your Honor, just to stress that once again this was the Defendant’s first serious offense and that my understanding is that he did cooperate fully with the authorities in getting together these reports.
THE COURT: What is the status of his other armed robbery case ?
[DEFENSE COUNSEL]: I understand, Your Honor, from my conversation with his counsel in that case, that that is being set down for trial and will be tried in the near future.
THE COURT: Mr. Hoston, is there anything you wish to say to the Court?
DEFENDANT HOSTON: No, sir.
THE COURT: Well, I have studied this material, Mr. Hoston, with some care. I do not think you should go to the Youth Center. I am going to give you an adult sentence: Three to sixteen years on Counts 1, 4 and 7; three to nine years on Counts 3, 6, 9, 10, 11 and 13; one year on Count 16; all of these sentences to run concurrently.
Now I imagine that you will be held here pending your other trial at the local jail.
That is the sentence of the Court.
[DEFENSE COUNSEL]: Thank you, Your Honor.

The presentence report that was before the court showed appellant as having no juvenile arrests or convictions; two minor adult arrests but no convictions; and one arrest for carrying a dangerous weapon shown as “no disposition.” He was reported as having a light narcotics habit; and the recommendation was as follows:

“This individual brings to the Court a prior community record free of law violation and adequate community circumstances, completion of high school graduation requirements, minimal employment experience and mild narcotics addition. He is perceived as an individual possessed of community and personal resources, given proper guidance and support, if and only if an abrupt attitude change should occur within the very near future.”

The 5010(e) report included a full psychological examination and a proposed course of treatment for appellant. Its conclusion was stated in these terms:

“The staff is of the opinion that Mr. Curtis Hoston should be sentenced under the Youth Corrections Act, 5010b, and returned to the Youth Center for training and treatment.”

This court is not informed as to the nature of the psychological study prepared by Mr. Grant of the Offender Rehabilitation Project.

II

In Coefield this court en banc described the comprehensive character of the Youth Corrections Act, and the patent purpose it exhibited on the part of Congress to do everything possible to save youthful offenders from lives of hopeless criminality. It noted that this purpose came into its sharpest focus in the admonition of Section 5010(d) that the sentencing court may impose an adult sentence only “[I]f the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c) . . .” We concluded, building upon this court’s earlier decisions in United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722 (1970), and United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971), that this requisite statutory finding may not bp “left to implication,” but must appear explicitly in the sentencing record as an essential condition precedent to the legality of an adult sentence.

From these premises Coefield went on to say that it would not be enough for the sentencing court simply to track the statutory language. The basis for its finding must appear in a statement of the reasons why it has decided against a Youth Corrections Act commitment and in favor of adult punishment. We were at some pains in Coefield to recognize that that election remains within the discretionary range of the judge’s sentencing function but, as this court said in Waters, it is a discretion “circumscribed by the findings of fact in the individual case which the District Judge is required to make. . . .”

We also were careful to note in Coefield that, in respect of the statement of the reasons giving rise to the finding, “. . . we are not seeking to elicit any litany or prescribed formula”; and we enumerated what we conceived to be the essential elements of the exercise of the sentencing function when a defendant eligible by reason of his age alone for possible disposition under the Youth Corrections Act, stands before the bar of the court. Given conscious and conscientious attention by the sentencing judge to these elements, we saw no reason to envisage a “large number of appeals calling for review of sentences which call for consideration of the Youth Corrections Act.”

The awesome and difficult task of sentencing continues to be vested in the one man who is best circumstanced to discharge it wisely, that is to say, the trial judge. The Youth Corrections Act does not change that, nor does it contemplate wholesale appellate intrusion into that process. What Congress has done, out of its urgent concern for saving the young while there is still time, is to require of the sentencing court in one limited but highly important area of sentencing the exposure on the record of the factors which informed and shaped the particular exercise of its discretion. An appellate court can only be concerned with the rationality of those factors in relation to the Congressional objectives. Where that rationality is present and visible, its function is at an end.

III

The sentencing circumstances in the case of appellant Reed are very like those involved in Coefield in the sense that the sentencing court made no reference whatsoever to the Youth Corrections Act alternative. This was despite the fact that there were before the court two presentence reports which were favorable to Reed’s rehabilitation prospects. Indeed, the second and later of such reports expressly recommended disposition of Reed as a youth offender. It is true that defense counsel in his plea for leniency made no specific reference to the Youth Corrections alternative, but it does not appear from the record whether he had been given access to the presentence report or knew what its recommendation was.

We cannot tell from the record in the case before us whether the trial court had the Youth Corrections Act in mind at all, much less what its reasons, if any, were for electing to impose an adult sentence in preference to a YCA commitment. There is, in any event, a complete absence — even in the bare statutory language — of the finding required by the Act as a condition precedent to giving Reed an adult sentence. Our analysis in Coefield, therefore, makes imperative the vacation of the sentence in No. 23,044, and the remand of the case for resentencing in which due heed will be taken of that analysis.

IV

In the case of appellant Hoston, there was no want of awareness of the Youth Corrections Act. The sentencing court promptly upon conviction invoked Section 5010(e) and made a 60-day commitment for observation and study. When that was complete and the report received, the court immediately made it available to defense counsel. When the matter came on for hearing, the court referred to its careful study of that report, the presentence report, and the psychological study made by the Offender Rehabilitation Project. The court’s conclusion was, however, stated simply to be that “I do not think you (Hoston) should go to the Youth Center.”

There is every reason to believe from this record that the court did give serious consideration to the possibility of a YCA commitment. It did not in terms, however, purport to make the statutory finding required by Section 5010(d), except as the unamplified statement of what it had decided to do may be claimed to be such a finding. There is not available to us from this record any indication of the reasons which impelled the court to its conclusion.

This is not to say that there were no such reasons, but only that we have no way of knowing what they were. In Coefield we said that where a sentencing court acts to get a 5010(e) report, and, after considering it in the light of such other relevant data as may be before him, follows its recommendation, a further recital of reasons may well be unnecessary. But we said also that “. . . [where] the judge imposes a sentence contrary to the recommendation in a report following a referral under section 5010(e), the need for more detailed statement of reasons is more obvious.”

We think this latter principle laid down in Coefield is determinative here. The handling in this instance of the Youth Corrections Act alternative was a model of correct and enlightened procedure up to the point of its uninformative termination. That alone inevitably gave rise to an appeal point founded on the requirements of the statute, and one which we are in no position to dispose of on this record. Accordingly, appellant Hoston, although under appreciably different circumstances from those which characterized the sentencing of appellant Reed, is entitled to the same disposition of his appeal.

In Nos. 23,044 and 23,661, the convictions are affirmed, the sentences vacated, and the eases remanded for new sentencing proceedings consistent herewith. It is so ordered.

ROBB, Circuit Judge

(concurring):

Without questioning the propriety of the sentences imposed by the district judges I acquiesce in the remand of these cases.

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

For reasons set forth in my dissent in No. 24,085—United States v. Coefield, 155 U.S.App.D.C. , 476 F.2d 1152, decided February 6, 1973, I concur in the disposition of Reed’s case (No. 23,044) and dissent from the disposition of Hoston’s case (No. 23,661).

      . Appellant Reed presented character witnesses in his defense at trial, and argues on appeal that reversible error flowed from the court’s failure to instruct the jury-on the significance to be attached to such evidence. There was no defense request for such an instruction and no objection to its omission, but, pretermitting the question of whether the point is properly cognizable on appeal, we find that no substantial rights were affected in the light of the strong proofs of guilt adduced by the prosecution and the insubstantial character of the character testimony. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Neither do we find any abuse of discretion, in the circumstances shown by this record, in the trial court’s refusal to interrupt the trial indefinitely in order to enable appellant to try to find a witness. The indications were that the testimony of such witness would have been cumulative at best, and, at worst, contradictory of that given by appellant. It also seemed quite unlikely that the witness could be found.
      Appellant Hoston’s only challenge to his conviction, as distinct from his sentence, is a claim that the trial judge intervened too actively in the questioning of witnesses. Our reading of the transcript establishes that the point is wholly lacking in merit.

      . One alleged accomplice in this crime, Winestock, pleaded guilty to robbery; and another, Shade, was tried with appellant and found guilty of armed robbery and assault with a dangerous weapon. Shade’s appeal to this court raised no sentencing issue, and his conviction was affirmed (No. 23,660, decided January 11, 1971).
      When Winestock came before the court for sentencing, the following colloquy occurred:
      THE COURT: Mr. Winestock, do you have anything you want to say to me?
      THE DEFENDANT: Yes, Your Honor. 1 would appreciate if I was sent back to the Youth Center. They have a lot there to offer me, you know.
      THE COURT: Well, I have, as you know, had you at the Youth Center for an evaluation study under 5010(e). You need some help, but you are making good progress and you are working at it.
      The Court is going to sentence you to eight years under 5010(c) of the Youth Corrections Act. Now I want to make sure you understand the nature of that sentence, Mr. Winestock. That allows them to hold you a longer period than 5010(b), if it was necessary, but it still is indeterminate. It depends on the progress you make. You work at it. I think you are making progress. That is the sentence of the Court.

      . The presentenee report before the court in Coefield was not favorable in its conclusion. Despite that fact, we felt obliged to vacate the adult sentence since the court said nothing as to the Youth Corrections Act.

      . At the time of sentencing the court inquired as to “the status of his (Hoston’s) other armed robbery case,” and was told by defense counsel that it was to be tried in the near future. The reference presumably is to an indictment returned on June 10, 1969, charging an offense to have been committed on April 14, 1969 —at a time when appellant Hoston was out on bond awaiting trial in the case on appeal before us. Hoston went to trial on this latter charge on May 5, 1971. He was convicted by a jury and was sen-fenced by a trial judge different from the one who presided in the case before us to an adult sentence to be served concurrently with the sentence imposed in this case. An appeal of that conviction to this court resulted in an affirmance (No. 71-1860, decided September 28, 1972). In that appeal no issue was raised with respect to the sentence, perhaps because at the time Hoston was convicted in that case he was ineligible for YCA commitment by reason of age.