author: TAMM, Circuit Judge:

text:
    UNITED STATES of America v. Johnnie L. PETERSON, Appellant.
    No. 73-1168.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 6, 1974.
    Decided Dec. 27, 1974.

      Howard P. Willens, Washington, D. C., with whom William T. Lake, Washington, D. C. (both appointed by this Court), was on the brief for appellant.
    Michael G. Scheininger, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Earl J. Silbert, Washington, D. C., also entered an appearance for appellee.
    Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
   TAMM, Circuit Judge:

Appellant challenges his conviction for first degree murder on three grounds. First, he contends that the prosecution failed to produce sufficient evidence of premeditation and deliberation and that the jury was erroneously charged on those elements. Second, he asserts that the trial court committed plain error by admitting a reference to appellant’s pri- or criminal record without a cautionary instruction. Finally, he argues that the jury instruction given as to the question of whether appellant’s abnormal mental condition negated the required intent for first degree murder was prejudicial. While we express some dissatisfaction with the latter jury instruction, we find no basis for reversal and hence, affirm.

I

Around midnight on July 27, 1971, decedent Charles Sanders and his friend Jay Washington went out to get something to eat. While walking, they met appellant Peterson who spoke briefly with Sanders. During their meal, Sanders wrote his address on a piece of paper, which Washington later saw him give to Peterson. Tr. 92 — 93. Soon thereafter, the pair separated, Sanders, having asked Washington to telephone him later to see if he “was all right”, walked in the direction of his apartment. Sanders, an admitted homosexual, had on previous occasions asked Washington to telephone him “when he was going home with someone.” Tr. 107, 111. At 3:00 a.m., Washington telephoned Sanders, who indicated that Peterson was with him.

Sanders’ body was found in the bathtub of his apartment by a building employee two days later; a butcher knife was still embedded in his chest. He had been stabbed twice, once in the back and once in the chest which had caused the more severe injury. Tr. 30, 36 — 37. A trail of blood was discovered leading from the living room to the bathroom, and a glass by Sanders’ bed yielded a fingerprint which was later determined to belong to appellant.

On August 16, 1971, Peterson was arrested as he fled from the scene of a street robbery. Taken to the station-house and advised of his rights, appellant became nervous at the mention of fingerprinting and blurted out, “As soon as you fingerprint me, you got me. I want to talk to somebody from homicide. I killed a man.” Tr. 117. Peterson then confessed to Officer Ronald Norton that he had gone to decedent’s apartment and, while there, went into the kitchen and procured a butcher knife. Appellant concealed the knife and “walked around a little bit.” Tr. 118. When Sanders turned his back to him and bent over the bed, Peterson stabbed him once by the spine. At Peterson’s command the decedent staggered to the bathroom where appellant ordered him to turn around and then stabbed him in the chest. Asked to explain his reason for the killing, Peterson told Officer Norton that Sanders “had made fun of him when he was with his women.” Tr. 119.

Appellant was next transported to the homicide squad office, where he gave a written statement. He stated that he had known Sanders “about two or three months” and on the night of his death had met Sanders “and another sissy.” He recounted that he and Sanders had been unobserved entering the apartment building except by “the man behind the front desk, but he did not pay any attention to us.” Tr. 132-33. The statement then contained the following description of the crime:

He [Sanders] wanted me because he was sissy. I told him that he would have to pay for it. At this time I told him that he would have to pay me. He stated that he did not pay anyone.
I then told him that he must not want me if he did not want to pay for it. Then I got up off the bed and started walking around and thinking. Then I went into the kitchen and got a butcher knife. I stuck [it] into my pants so he could not see it and went back into the bedroom. He was bending down fixing his shoe. At this time I stabbed him in the back. The knife went all the way through.
Then I took it out. I then told him to go over and stand by the bathroom. He could hardly make it over there, but he did as I told him. He was standing up in the doorway to the bathroom, and I stabbed him again. I think it was under his heart. I left the knife in him that time. At this time he fell in the bathtub.

Tr. 133.

At trial, the only disputed issue was whether Peterson had premeditated and deliberated the killing. The defense presented one witness, Dr. Harold Kaufman, a psychiatrist. He testified that he had interviewed appellant and his mother and had reviewed reports on Peterson by other experts. Dr. Kaufman’s primary conclusion was that Peterson “was suffering from an explosive personality disorder” which left him unable to premeditate and deliberate under the circumstances of the killing. Tr. 233.

Under cross-examination, Dr. Kaufman retracted some of his testimony and admitted that previous psychiatrists in 1968 had found their initial diagnosis was erroneous and that Peterson had faked mental illness. Tr. 252-55. In rebuttal the government presented another psychiatrist, Dr. Robert Robertson of Saint Elizabeth’s Hospital who testified that he had examined Peterson and opined that at the time of the offense appellant “was not suffering from any mental disorder”. Tr. 321. Dr. Robertson expressed disagreement with Dr. Kaufman’s finding that Peterson suffered the “mental disorder of explosive personality,” both because his symptoms were inconsistent with that diagnosis and because “all people who committed criminal offenses” possessed explosive personalities and it was not at all a “substantial mental disorder”.

The jury returned a guilty verdict of murder in the first degree. Appellant was sentenced to life imprisonment and this appeal followed.

II

Appellant’s first contention is that the trial judge erred in denying his motion for judgment of acquittal for first degree murder because of the insufficiency of the government’s proof as to premeditation and deliberation. Appellant places primary reliance on our decisions in Austin v. United States, 127 U.S.App. D.C. 180, 382 F.2d 129 (1967) and Hemphill v. United States, 131 U.S.App.D.C. 46, 402 F.2d 187 (1968) for the proposition that in first degree murder cases the jury cannot be left impermissibly free to speculate about the defendant’s mental processes at the time of the offense. He then argues that the government failed to introduce any evidence which took the issue out of the realm of speculation. We disagree.

Our starting point is the distinction between the quantum of proof required for submission of the charge to the jury and that which is necessary for conviction. To grant a motion for acquittal, the court must find that when viewed in the light most favorable to the government, the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. See, e. g., United States v. Bethea, 143 U.S.App. D.C. 68, 70, 442 F.2d 790, 792 (1971); United States v. Sutton, 138 U.S.App. D.C. 208, 216, 426 F.2d 1202, 1210 (1969); Austin v. United States, supra, 382 F.2d at 138.

Under the District of Columbia first degree murder statute, 22 D.C.Code § 2401 (1973) those essential elements include deliberation and premeditation. We have noted previously that Congress attempted through these elements to establish a demarcation between the degrees of homicide, which we must strive to preserve. See Austin v. United States, supra. Consequently, the government must introduce facts which provide proof beyond a reasonable doubt that a crime was committed not merely intentionally, in sustained frenzy or heat of passion, but with premeditation and deliberation. I'd. at 140. As Judge Leventhal wrote in Hemphill v. United States, supra, 402 F.2d at 191:

Premeditation and deliberation are facts, susceptible of proof like any other facts in a criminal trial. The jury is not supposed to be rendering a moral judgment of culpability based on whether' it likes the defendant, or is horrified by the brutality of his killing. Whatever the difficulties of proving states of mind . . . the law now puts the burden of proving premeditation and deliberation on the prosecutor

Judge Leventhal correctly identified the problem in this area — the difficulty of adducing proof as to a state of mind. The statutory elements require courts to hold the government to its burden of proof, but it also allows the flexibility to entertain probative circumstantial evidence from which to infer premeditation and deliberation. That is why in Austin and Hemphill we reversed first degree convictions where the government attempted to establish those elements primarily on the basis of the passage of sufficient time for premeditation and deliberation. Hemphill v. United States, supra, 402 F.2d at 191; Austin v. United States, supra, 382 F.2d at 139. That is also why in the absence of other evidence, we have focused on the fact of whether the defendant brought the murder weapon to the scene as highly probative of the requisite state of mind. See United States v. Brooks, 146 U.S.App.D.C. 1, 8, 449 F.2d 1077, 1084 (1971); United States v. Sutton, supra, 426 F.2d at 1212; Belton v. United States, 127 U.S.App.D.C. 201, 203, 382 F.2d 150, 152 (1967). Moreover, we have held as sufficient to send the question to the jury evidence of “methodical preparation that reflected planning and premeditation,” Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559, 569, cert. denied, 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126 (1968) and the passage of time coupled with certain overheard declarations by defendants, United States v. Mack, 151 U.S.App.D.C. 162, 167, 466 F.2d 333, 338, cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972).

In the instant case, the government introduced not circumstantial evidence but appellant’s oral and written confessions as to the circumstances surrounding and his state of. mind during the crime. Peterson orally admitted to a police officer that he killed Sanders for ridiculing him when appellant was with women companions. In his written statement, Peterson confessed that after being told that Sanders would not pay, he “got up off the bed and started walking around thinking”. He procured the butcher knife, secreted it, waited until decedent’s back was turned, and then stabbed him. These facts clearly are probative of a determination to kill reached calmly sometime before the act and of reflection upon the preconceived design to kill, turning it over in the mind. See United States v. Sutton, supra; Austin v. United States, supra. Further, the actual sequence of the killing, the waiting until Sanders’ back was turned and the ordering of the wounded man into the bathroom where the second, fatal blow was struck evidences “methodical preparation” reflecting planning and premeditation. See Parman v. United States, supra.

Appellant responds to these statements by arguing that Peterson’s reference to Sanders mocking of him in front of women was “a wisp of testimony [which] ‘serves to raise doubts rather than resolve them.’ ” Appellant’s Br. at 26, citing Hemphill v. United States, supra, 402 F.2d at 190. He argues that the incident is neither fully explored nor corroborated and is a “flimsy foundation” for a jury verdict. Id. at 26 — 27. In rebutting the written confession, appellant asserts that the version detailed there contradicts the governments’ theory. Instead, the statement, he argues, paints a clear portrait of a crime committed by a man lashing out on impulse, not by premeditation and deliberation. Id. at 27 — 28. Appellant concludes that “[t]hese fragments of evidence, contradictory as well as inconclusive, cannot sustain the prosecutor’s heavy burden of proof.” Id. at 29 (emphasis added).

Like the trial judge and the jury, we fail to see how appellant’s admissions do not contain any evidence of the mental elements in question. In any event, appellant’s argument misconceives the distinction between the government’s burden of proof to withstand a motion for acquittal and its heavy burden to prove each element of the offense beyond a reasonable doubt. We see no reason to disturb the trial court’s implicit finding that the evidence when viewed in the light most favorable to the government, is not such that a reasonable juror must have a reasonable doubt. The issue was properly left to the jury, which rendered its verdict.

Appellant next asserts that the trial court’s jury instruction was erroneous in equating premeditation with intent to kill and constituted plain error. The trial court’s first degree murder instruction was given verbatim from the book of recommended instructions published by the District of Columbia Bar Association. However, appellant argues that by equating premeditation with intent to kill the trial court effectively blurred the demarcation between first and second degree murder established by Congress and recognized by this court in Austin. Appellant’s Br. at 34. While conceding that this often invoked instruction has been generally upheld by the Supreme Court in Fisher v. United States, 328 U.S. 463, 470, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946) and by this court in Austin and United States v. Bryant, 153 U.S.App.D.C. 72, 79, 471 F.2d 1040, 1046 (1972), appellant contends that the objectionable portion was never specifically considered in those cases.

We find appellant’s argument without merit. The instruction defines premeditation as “the formation of the intent to kill” (emphasis added). Moreover, this court in United States v. Sutton defined premeditation with the jury instruction attacked here. 426 F.2d at 1211. In Belton v. United States, we did not find plain error in a briefer charge than at issue here, a charge which basically instructed that premeditation was “the formation of the intent or plan to kill”. 382 F.2d at 152-153. The Belton panel took into account that the instruction on premeditation was conjoined with the instruction on deliberation — requiring “reflection” and “further thought upon this plan ... to kill.” Similarly, the jury considering appellant’s fate was charged on the need to show deliberation beyond a reasonable doubt, and instructed: “Deliberation involves giving consideration and reflection upon the preconceived design to kill, turning it over in his mind, and giving it a second thought.” Tr. 366. In sum, we find neither prejudice nor plain error in the instructions given here.

Ill

Appellant next asserts that the trial judge erroneously instructed the jury as to its leeway to consider whether defendant’s abnormal mental condition negated his ability to form the requisite mental state for first degree murder. Appellant argues that the instruction given conflicted with our en banc opinion in United States v. Brawner, 153 U.S.App.D.C. 1, 30, 471 F.2d 969, 998 (1972), and constituted plain, prejudicial error. Since this is the first case to reach this court since the Brawner decision where the defendant has introduced evidence of an abnormal mental condition as tending to show that he did not possess the requisite mental state, we should briefly review what Brawner established. In Brawner, this court held that expert testimony may be received as competent evidence as to whether defendant had the specific mental state required for a particular crime. Id.

We recognize that the receipt of this expert testimony requires “careful administration by the trial judge.” As Judge Leventhal wrote in Brawner:

the judge may, and ordinarily would, require counsel first to make a proffer of the proof to be adduced outside the presence of the jury. The judge will then determine whether the testimony is grounded in sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury in reaching a decision on the ultimate issues.

Id. at 1002 (footnote omitted).

To capsulize, the threshold issue therefore is the classic question of relevancy. As with any piece of evidence, the trial judge is called upon to weigh the probative versus the potential prejudicial nature of the evidence proffered. The judge must determine whether the evidence is sufficiently grounded in scientific fact and whether it directly addresses the mental element at issue so that its introduction will not unduly distract or mislead the jury from the determination it must make. See generally McCormick on Evidence §§ 184-85 (2d ed. 1972).

We, therefore, note with approval that the trial judge in the instant case insisted on a proffer of defendant’s medical testimony. Tr. 180-87. According to the record, the judge did receive some representations as to the medical conclusions to which the expert witness would testify. Tr. 187-91, 198-200. However, we find nowhere on the record any indication that defense counsel proffered the scientific basis for the witness’ conclusions. We reiterate that only after receiving a complete proffer can the trial judge discharge the responsibilities that the Brawner opinion contemplated the administration of this rule demands.

Appellant contends that the instruction given on this issue constituted plain error. That instruction, which is reprinted below, is a modification of the model insanity instructions set out in the Brawner opinion. 471 F.2d at 1008. Appellant argues that the instruction wrongly required the jury to find that the defendant had a “mental disease or defect” as defined in McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) before they could consider the medical evidence, that the charge confused the jury by referring to the presumption of sanity, and that the instruction erroneously told the jury to decide whether Peterson “ ‘was incapable of the premeditation and deliberation required for murder in the first degree.’ ” Appellant’s Br. at 41-43 (footnote omitted).

We agree with appellant that the instruction was an unnecessarily elaborate application of what the Brawner rule required. The doctrine enunciated in Brawner does not require a jury to consider a new, additional determination necessitating detailed instruction. The jury in this situation has only one factual determination to make — whether the defendant deliberated and premeditated the killing. What Brawner establishes is that the jury may now be aided in that determination by the receipt of competent medical evidence. When the rule is carefully administered by the trial judge, we think a simple, straight-forward instruction will suffice. As a model, we believe the inclusion of a single sentence from the proposed Brawner insanity instruction in the standard first degree murder charge is satisfactory:

In determining whether [premeditation and deliberation] has been proved beyond a reasonable doubt you may consider the testimony as to the defendant’s abnormal mental condition.

471 F.2d at 1008. Coupled with the approved instruction on the role of an expert medical witness, we think that such a procedure will adequately instruct the jury without undue confusion about the determination it must make.

While expressing dissatisfaction with the instruction given in this case, we do not believe it requires reversal. The instruction, while proposed by the prosecutor, was the subject of a conference between the prosecutor and defense counsel and after it was delivered to the jury, was approved by defense counsel. Tr. 4 — 5, 192, 198 — 99, 378. Appellant’s first argument is that by incorporating the McDonald definition of medical disease, the instruction omits other medical evidence which the Brawner rule contemplated would be admissible. We agree with appellant as to admissibility, for as our Brawner opinion explicitly stated: “For example, the defendant may offer evidence of mental condition not qualifying as mental disease under McDonald.” 471 F.2d at 998.

However, we do not see how the instruction prejudiced this particular defendant. Appellant’s expert witness testified that Peterson suffered from an explosive personality disorder that substantially affected his emotional and mental responses and distorted his behavior in a way that made him unable to premeditate and deliberate — a condition that would fall within the definition of mental disease given to the jury. Tr. 212, 233 — 34. The government attempted to impeach the basis of the expert’s conclusion and in rebuttal called its own expert who opined that appellant “was not suffering from any mental disorder.” Tr. 321. The question for jury resolution, therefore, did not revolve around whether Peterson’s condition did or did not fall within the McDonald definition, but around the credibility and weight to be given to the medical evidence. We find no plain error as regards this portion of the instruction.

As to appellant’s argument on the instruction’s reference to the presumption of sanity, while we agree that the paragraph is surplusage, we cannot find plain error in light of the instruction’s directive that “the presumption no longer controls” when evidence of an abnormal mental condition is introduced. Appellant’s final argument is that the charge instructs the jury in terms of whether Peterson was incapable of premeditation. We agree with appellant that the issue was whether appellant in fact premeditated, and the jury was so charged.

It is possible that the trial judge was influenced by a statement in Brawner. After discussing the possibility that an abnormal condition might not absolve a defendant of criminal responsibility (because he retained the capacity to control his behavior and appreciate the wrongfulness of his act), but yet might negate the mental state required for a particular crime, the Brawner opinion continued: “e. g., if the abnormal mental condition existing at the time of the homicide deprived him of the capacity for the premeditation required for first degree murder.” That reference to the abnormal condition negating capacity for premeditation at the time of the homicide was identified as an example, and was not meant to be exhaustive.

An abnormal mental condition may influence the probability that a defendant premeditated and deliberated — and so be taken into account by a jury in determining whether those states of mind existed in fact (beyond a reasonable doubt) —even though it did not eliminate the capacity for premeditation. This problem would be eliminated by use of the simple instruction set out above.

However, we cannot say the charge as given constituted plain and prejudicial error. In the instant case, the key testimony of defendants expert witness was that in view of defendant’s abnormal mental condition, he did not think defendant “was able to premeditate and deliberate.” Tr. 233. The charge tracked that testimony. No request or objection brought into focus the particular issue now relied upon. Under the circumstances, we do not think this presents a case of prejudicial error in which the instruction detoured the jury from the ultimate factual issue.

We think our conclusion that the instruction did not constitute plain error is buttressed by what we perceive is appellant’s failure even to point to such error in the record. Appellant argues that

if this Court strains to find that the errors in the charge were nonprejudicial, it will forego the opportunity to establish clearly what the proper instruction should be for use in future cases involving similar use of medical testimony.

Appellant’s Reply Br. at 18. We hope that our discussion of the Brawner rule will aid the trial court judges who must administer it. We believe that we have established the type of instruction contemplated by that rule. To do so, however, does not require reversal of this conviction when faced with a record that reveals the absence of plain error or prejudice to the defendant.

IV

Finally, we briefly dispose of appellant’s final argument that the trial court committed plain error by admitting without a cautionary instruction testimony relating to Peterson’s prior criminal activity. The challenged testimony was given by the defense’s own expert witness, Dr. Kaufman. In relating the basis for his medical conclusion, the witness referred to, as one source for his diagnosis, previous' hospital reports made during a period where Peterson was confined after a non-guilty verdict for reasons of insanity. On cross-examination, the witness revealed that the reports indicated that Peterson had been “malingering” and that he had never had any disorder during the time of confinement or at the time of the 1968 crime. Tr. 252 — 55; see note 1 supra, and accompanying text.

This testimony was clearly relevant and admissible both to apprise the jury of the factual foundation for the witness’ conclusion and as evidence as to the credibility of that diagnosis. See United States v. Bennett, 148 U.S.App. D.C. 364, 368, 460 F.2d 872, 876 (1972). The testimony was obviously elicited for that reason; in no way did it impeach the defendant. In fact, the defendant never did testify at trial. Consequently, this situation is simply outside the rationale of the rule enunciated in the Jones and McClain cases, where we held that the failure to give a cautionary instruction was plain error where prior crime evidence was admitted for impeachment of the defendant or to show malice. See United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241 (1971); Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967).

In sum, we have examined carefully each of the arguments that appellant has ably raised, but find that none of them give cause for reversal. The judgment, therefore, is

Affirmed.

      . Dr. Kaufman had testified in direct examination that the St. Elizabeth’s Hospital reports indicated that appellant in 1968 had been suffering from a schizophrenic reaction from which he “had sufficiently recovered so that he was released.” Tr. 215.

      . The correctness of the trial court’s denial of a motion for acquittal must be reviewed on the basis of the evidence as it stood at the close of the government’s case. A defendant who puts on a defense after denial of such a motion does not waive his challenge. See, e. g., United States v. Sutton, 138 U.S.App.D.C. 208, 217, 426 F.2d 1202, 1211 n. 67 (1969); Belton v. United States, 127 U.S.App.D.C. 201, 203, 382 F.2d 150, 152 n. 2 (1967); Austin v. United States, 127 U.S.App.D.C. 180, 189, 382 F.2d 129, 138 n. 20 (1967).

      . The trial court charged:
      To establish Element No. 4, the government, again, must do this beyond a reasonable doubt, and it must show that the defendant, in so injuring the deceased, ha[s] acted after premeditation.
      What is premeditation?
      Premeditation is the formation of the intention or plan to kill, the formation of a positive design to kill. To premeditate is to think of the act before doing. Premeditation involves giving thought before acting to the idea of taking a human life and reaching a definite decision to kill. In short, premeditation is the formation of specific intent to kill.
      The last element involves deliberation. Here, again, the government must show beyond a reasonable doubt that the defendant Johnnie L. Peterson, in so injuring the deceased, ha[s] acted with deliberation.
      Deliberation involves giving consideration and reflection upon the preconceived design to kill, turning it over in his mind, and giving it a second thought.
      Although premeditation, which is the formation of a design to kill, may be instantaneous, as quick as thought itself, it is necessary that an appreciable time elapse between formation of the design and the fatal act within which there is, in fact, deliberation.
      The law prescribes no particular period of time. It necessarily varies according to the circumstances of each case. Consideration of the matter may continue over a prolonged period, hours, days, or even longer.
      Then, again, ladies and gentlemen, it may cover a span of mere minutes.
      If one forming an intent to kill does not act instantly, but pauses and actually gives a second thought in connection to the intended act, he has, in fact, deliberated. It is the fact of deliberation that is essential, rather than the length of time that it may have continued.
      Tr. 365-66.

      . In fact, Judge Robinson cited both Austin and Fisher as support for the definition. United States v. Sutton, supra, 426 F.2d at 1211, citing Austin v. United States, supra, 382 F.2d at 135 n. 12, quoting instructions

        approved in Fisher v. United States, 328 U.S. 463, 469, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946).

      . We reject the government’s suggestion that the “mental condition negating mental intent” doctrine is unsound and should be overruled, and we reaffirm our adherence to it. See Appellee’s Br. at 24 n. 11.

      . That holding reversed a position dating back to 1946. In Fisher v. United States, 80 U.S. App.D.C. 98, 149 F.2d 28 (1945), we upheld the trial court’s refusal to instruct the jury to “consider the entire personality of the defendant, his mental, nervous, emotional and physical characteristics as developed by the evidence of this case.” The Supreme Court affirmed on the limited ground of disinclination to “force” on this court a legal doctrine for the District of Columbia. Fisher v. United States, supra, 328 U.S. at 476, 66 S.Ct. 1318. In the two Stewart opinions, we declined to reappraise the ban until further experience with the Durham rule was gathered. Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961); Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954); see Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). See generally United States v. Brawner, 153 U.S.App.D.C. 1, 31-34, 471 F.2d 969, 999-1002 (1972).

      . The law provides that a jury shall return a verdict of not guilty of murder in the first degree if at the time of the criminal conduct the defendant, as a result of a mental disease or defect, was incapable of the premeditation and deliberation required for murder in the first degree.
      Every man or woman is presumed to be sane, that is, to be without mental disease or defect, and to be responsible for his or her acts. But that presumption no longer controls, ladies and gentlemen, when the evidence is introduced that he may have a mental disease or defect.
      Mental disease includes any abnormal condition o•: mind, regardless of its medical label, which substantially affects mental or emotional processes and substantially impairs behavior controls.
      The term “behavior controls” refers to the processes and the capacity of a person to regulate and control his conduct and actions.
      In considering whether the defendant had a mental disease at the time of the unlawful act here in this case, you may consider testimony in this case concerning the development, adaptation and functioning of these mental and emotional processes and behavior controls.
      The burden is on the government to prove beyond a reasonable doubt either (1) that the defendant was not suffering from a mental disease or defect, or that if he were suffering from a mental disease or defect, he, nevertheless, was capable of premeditating and deliberating.
      Tr. at 373-74.

      . In discussing the rule in this context, we intimate no opinion as to its applicability to other mental elements. As we did in Brawn-er, we leave such determinations to future consideration where we will be aided by the availability of a specific factual context. See 471 F.2d at 1002 n. 75.

      . Appellant advances a California charge which instructs the jury in terms of “substantially reduced mental capacity.” Appellant’s Br. at 45 n*. We think this comes too close to the concept of “diminished responsibility”, which we noted in Brawner to be misleading. See id. at 998.

      . Such an instruction was given in this case, Tr. 204-10, in the form suggested by Washington v. United States, 129 U.S.App.D.C. 29, 39-43, 390 F.2d 444, 457-58 (1967).

      . In McDonald, we established that a mental disease or defect “includes any abnormal condition of the mind which substantially . . . impairs behavior controls.” McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 851 (1962).

      . In fact, appellant’s trial counsel proffered to the court that his expert would testify to mental illness which would fall within the McDonald definition, but could not testify to “productivity”, another component of the Brawner insanity test. Tr. 190.

      . Appellant’s trial counsel neither attempted to exclude the testimony nor requested a limiting instruction. Appellant’s Br. at 47 n*.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    SUDBRINK BROADCASTING, INC. OF FLORIDA, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WFTL Broadcasting, Inc., Intervenor.
    No. 73-1849.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 19, 1974.
    Decided Dec. 30, 1974.

      John Wells King, Washington, D. G., with whom Michael H. Bader, Washington, D. C., was on the brief, for appellant.
    James R. Hobson, Counsel, F.C.C. with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, Washington, D. C., were on the brief, for appellee.
    Rainer K. Kraus and Herbert D. Miller, Jr., Washington, D. C., were on the brief for intervenor.
    Before FAHY, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and DAVIS, Judge, United States Court of Claims.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   DAVIS, Judge:

In December 1971, appellant Sudbrink Broadcasting, Inc., licensee of radio station WLYF (FM), Miami, Florida, requested the permission of the Federal Communications Commission to identify the station as “WLYF, Miami-Fort Lauderdale.” Sudbrink’s application, based on the double factors that the station puts a principal city signal over Fort Lauderdale and that the two communities are economically cohesive, was opposed by intervenor WFTL Broadcasting Company, licensee of WFTL, one of four Fort Lauderdale FM stations. WFTL maintained that putting a principal city signal over a community was not sufficient to warrant granting dual identification, that Miami and Fort Lauder-dale are separate economic and radio markets, that WLYF had served Miami poorly and should not be allowed to expand its service commitment, and that the smaller Fort Lauderdale radio stations would be economically injured by the dual-city identification. In July 1973, the Commission issued a Memorandum Opinion and Order denying Sud-brink’s request because it lacked “the competitive and economic reasons which ordinarily justify waiver” of the single-city identification requirement and because Miami and Fort Lauderdale are separate economic entities. 41 F.C.C.2d 818, 819 (1973). Sudbrink appeals from that decision.

While station identification announcements are not the most significant portion of a radio station’s program day, they are among the most highly regulated. Under FCC regulations, 47 C.F.R. § 73.1201 (1973), each radio and television station must identify itself at the beginning and end of each “time of operation” and hourly. The regulation goes on to state that “Official station identification shall consist of the station’s call letters immediately followed by the name of the community or communities specified in its license as the station’s location,” but that, with written authorization, other communities may also be named. 47 C.F.R. § 73.1201(b)(1-2) (1973). Sudbrink’s December 1971 letter was an application for such additional authorization.

Requests for “multi-city identification,” usually denominated as requests for waiver of the station identification regulation, are not unusual, although this is the first time the issue has reached this court. The extra identification is usually sought as a way to try to increase advertising revenues, and does not constitute a modification of the station’s license or a diminution of its obligation to serve the city or place of license. Ponce Television Corp., 18 F.C. C.2d 543, 545 (1969); General Electric Broadcasting Co., 16 F.C.C.2d 673 (1969).

The main policy statement on the subject came in 1957 when the Commission, citing administrative difficulties and the desire to preserve the concept of single-community identification, refused to promulgate a regulation allowing automatic waiver of the television station identification regulation when certain technical and sociological standards were met. At the same time the Commission said:

We will review any such requests in the light of all the relevant local circumstances, including the provision of a minimum city signal throughout the cities concerned, the applicant’s proposals for the provision of studio facilities, the programming services to the cities concerned, other available television services,. if any, the hardships, if any, which may be unjustifiably imposed by the present rules, and all other circumstances bearing on a decision as to whether the authorization would be justifiable in the individual case as an exception to the general rule.

Amendment of Part 3 of the Rules and Regulations Governing Main Studio and Station Identification of Television Broadcast Stations, 22 F.C.C. 1567, 1571 (1957) [cited as 1957 Report and Order].

With the waiver rules in this general posture, the Commission considered the 1963 requests of Wometco Enterprises and Sunbeam Television Corp., both licensees of Miami VHF television outlets, to identify as Miami-Fort Lauderdale stations. The application was refused, the F.C.C. distinguishing the case from prior waiver grants because it did not involve a small-city station “actfing] to enhance [its] attractiveness ... to national advertisers, by recognizing [its] predicted service contours.” The Commission was also concerned that granting the waiver would lessen the attractiveness to potential licensees of an allocated but unused Fort Lauderdale UHF channel. Wometco Enterprises, Inc., 1 P&F Radio Reg. 2d 699, 700 (1963). Except for intervening policy statements and waiver grants, and given the present policy of considering AM, FM and television dual-identification requests on the same basis, see Radio Delegation Order, supra, note 4, Wometco would be a decisive precedent here. Our consideration is, ■however, made somewhat more complex by these intervening events on which appellant relies heavily.

In 1965, in response to this court’s decision in Miners Broadcasting Service, Inc. v. F.C.C., 121 U.S.App.D.C. 222, 349 F.2d 199 (1965), the Commission reconsidered its policy regarding the licensing of mutually exclusive suburban stations where the agency had reason to believe that an applicant was competing for the easier-to-obtain suburban station when it in fact intended to serve the central city. In developing a policy to screen out such pseudo suburban stations, the Commission found:

Our experience compels us to conclude that as their power and coverage are increased to serve larger numbers of persons, stations in metropolitan areas often tend to seek out national and regional advertisers and to identify themselves with the entire metropolitan area rather than with the particular needs of their specified communities.

Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190, 192 (1965). Appellant maintains that this Policy Statement, even though only tangentially related to dual-city identification policies, effectively overrules Wometco by undercutting its rationale of helping the suburban station to obtain national advertising.

A year later, the F.C.C. reviewed the status of multi-city identification requests under the 1957 Report and Order, supra. Finding, in the case of television, that “The Commission has waived these provisions so as to permit multiple city identification in all situations in which the additional community or communities with which the station concerned wished to be identified were provided with” principal city signals, the FCC delegated the authority to waive the regulation, in cases where principal city strength was provided, to the Chief of the Broadcast Bureau. 31 Fed.Reg. 6627 (1966); see 47 C.F.R. § 0.281(d)(17) (1973). In 1967, the Commission decided to align AM and FM practice “with television practice to the extent of permitting on-the-air identification with all communities lying within the pertinent principal-city contours.” Radio Delegation Order, supra note 4. This order likewise delegated waiver authority to the Chief of the Broadcast Bureau. See 47 C.F.R. § 0.281(kk) (1973).

From 1967 until the present, most requests for waivers of the station identification requirement have been routinely granted, in the absence of opposition, by the Broadcast Bureau, even in instances where the city of license is larger. See, e. g., Public Notice, Broadcast Actions, Report No. 12098, January 28, 1974 (South Bend-Elkhart, Ind.); Id., Report No. 12427, July 1, 1974 (Reading-Potts-town, Pa.); Id., Report No. 12179, March 5, 1974 (Tampa-St. Petersburg, Fla.); Id., Report No. 11363, March 13, 1973 (Dallas-Ft. Worth, Tex.). Where opposition has been filed, as in this case, the Broadcast Bureau has usually referred the request to the Commission.

In addition to the Wometco standard, the Commission’s decisions in prior contested cases appear to articulate a number of criteria, including: (1) whether the station also proposes moving its transmitter and/or studio to the location with which it proposes to identify or adding a new studio in that city (see Ponce Television Corp., supra, 18 F.C. C.2d at 545; Merrimack Valley Communications, Inc., 20 F.C.C.2d 161, 163-164 (1969)); (2) mutuality, /. e. whether the opposing station would be eligible for dual-city identification (see Central California Communications Corp., 22 F.C. C.2d 629, 631 (1970)); (3) viability of the opposing station (see id. at 630; Ponce Television Corp., supra at 545; cf. Wichita-Hutchinson Co., 44 F.C.C. 2069, 2069— 70 (1960)); and (4) viability of the station requesting the waiver (see Look Television Corp., 15 F.C.C.2d 718, 719 (1968)). Where the applicant station has proposed a new studio as in Ponce and Merrimack, the Commission has denied dual-city identification, viewing the application as a change in place of license. The result has been the same where there has been a lack of mutuality or a substantial showing of economic injury to a floundering opposition station. Compare Central California, supra and Ponce, supra with Wichita-Hutchinson, supra (economic injury not proven). In Look, the Commission found that the tricity identification which it had granted made that UHF facility viable, and so denied reconsideration of the waiver decision. In these cases, the Commission has also made it clear that it will not grant waiver requests based simply on a “community of interests” or a simple “trading area.” See Look, supra, 15 F.C. C.2d at 719; Central California, supra, 22 F.C.C.2d at 630. But in none of the contested cases since 1963 did the agency deal with the Wometco issue — what to do when a much larger city station wishes to identify with a smaller outside community.

In the ruling now under challenge, the Commission returned to that problem. It held, first, that it was not enough to show mere technical compliance with the requirement that the station deliver a principal city signal to the second community; other factors had always to be taken into account. In this instance, as in Wometco, the most pointed of these additional matters was that a big-city station was trying to identify with a smaller neighboring community “in a different county, a different SMSA, and a different radio market.” Prior grants of dual-identification to a facility in a larger community were distinguished as involving either “twin cities” or communities “with a single television market which, in either event, are situated within a single SMSA.”

The scope of judicial review of the FCC’s decision is of course limited. It is our duty to consider whether the Commission has genuinely engaged in reasoned decision-making, see Greater Boston Television Corporation v. F.C.C., 143 U.S.App.D.C. 383, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); whether the Commission has either followed- relevant precedent or adequately explained its reasons for not doing so, see New Castle County Airport Comm’n v. C.A.B., 125 U.S.App.D.C. 268, 371 F.2d 733, 735 (1966), cert. denied, 387 U.S. 930, 87 S.Ct. 2052, 18 L.Ed.2d 991 (1967); and whether the Commission has sufficiently set forth the basis for its decision so as to avoid making “the judicial review contemplated by the Act a perfunctory process,” see Colorado Interstate Gas Co. v. F.P.C., 324 U.S. 581, 595, 65 S.Ct. 829, 89 L.Ed. 1206 (1945). In this connection, it is important that Sudbrink did not submit a request that the Commission follow its rules, but rather a request that the rules be waived. Such an applicant not only has the burden of convincing the agency that it should depart from rules presumptively in the public interest, see Carolina Broadcasting Co., 18 F.C.C.2d 482, 483 (1969), but in this court, “It must show that the Commission’s reasons for declining to grant the waiver were so insubstantial as to render that denial an abuse of discretion.” WAIT Radio v. F.C.C., 148 U.S.App.D.C. 179, 459 F.2d 1203, 1207, cert. denied, 409 U.S. 1027, 93 S.Ct. 461, 34 L.Ed.2d 321 (1972).

First of all, there is no doubt that the Commission properly rejected appellant’s contention that the Radio Delegation Order, supra note 4, and its television analog, 31 Fed.Reg. 6627 (1966), created the simple rule that, if a station puts a principal city signal over the second community, waiver will automatically be granted. As the Commission itself recognized, the delegation orders can be read in this simplistic fashion. 41 F.C.C.2d at 818-819; see text at note 5, supra. But it is clear from the FCC precedents discussed above that, at least in contested cases, the Commission has gone beyond merely looking at signal strength in making its decisions. By consistently treating the cases as true waiver requests — involving individual judgment and the exercise of discretion- — the FCC has left itself the useful opportunity to consider in a particular case whether “a general rule, deemed valid because its overall objectives are in the public interest, may not be in the ‘public interest’ if extended to [a given] applicant.” WAIT Radio v. F.C.C., 135 U.S.App.D.C. 317, 418 F.2d 1153, 1157 (1969). In treating Sudbrink’s application as a waiver request, and putting the burden on Sudbrink to show “competitive and economic reasons which . . . justify waiver,” the Commission was clearly and correctly following its own past rulings.

In support of its argument for a discretionary grant, appellant submitted evidence tending to show the economic unity of Miami and Fort Lauderdale. (This presentation was of precisely the type of evidence of “community of interests” and “trading area” previously rejected in Look, supra, 15 F.C.C.2d at 719 and Central California, supra, 22 F.C. C.2d at 630.) Intervenor, in opposition, rebutted the showing of community of interests and claimed that it and other Fort Lauderdale FM and UHF stations would suffer economic injury if WLYF’s application were granted.

On this record, we hold that the Commission could permissibly conclude that, under the standards suggested in its precedents, Sudbrink’s application should be refused. At the very best for the applicant, the case was not at all clear-cut. WLYF did not exclude itself by proposing a Fort Lauderdale studio, and the showing of direct economic injury to intervenor was neither solid nor great. However, mutuality as to WFTL was then unclear and the evidence suggested that WLYF, which was doing quite well even in Fort Lauderdale, did not need the dual-city identification to survive.

The balance was swung, as the Commission’s opinion reveals, by weighing the relative sizes and positions of the two communities. Following Wometco, the agency chose to disallow the station in the large metropolitan area from extending itself to an unequal suburb (or neighboring community) on the general ground that the existing and potential small city stations, already competing for limited advertising revenues with the nearby big city units, might be so hurt as to affect their service. Conversely, dual-city identification can be granted to the satellite smaller-town station so to further its ability to attract advertisers who will supply added revenue to “improve their competitive position vis-a-vis big city neighbors.” 41 F.C.C.2d at 819. Taken by itself, this policy clearly embodies a reasonable position which cannot be overturned without substituting, judicial for administrative discretion.

Appellant urges, however, that the Wometco principle has been thoroughly undercut by the 1965 Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190, supra, as well as by numerous grants in the past decade of dual-identification to communities which were larger than the new locations they sought to cover. We find no necessary inconsistency between the Wometco standard and the suburban stations policy statement, which was directed to the situation where the Commission had reason to believe that the applicant for the suburban station was from the beginning covertly intending to serve the entire metropolitan area. The policy statement deals with a masquerading suburban station with imperial designs while Wometco is concerned with a bona-fide smaller community facility continuing to serve its own area and needing help to attain that end.

As for the grants on which Sudbrink relied, the Commission’s opinion distinguishes them as involving “either ‘twin cities’ or non-adjoining communities within a single television market which, in either event, are situated within a single SMSA.” This last is incorrect in some respects, but despite this mistake we think the FCC was driving at a recognizable and reasonable cleavageline. On the one hand, a station in a large metropolitan area (Miami) is seeking to extend its identification to a considerably smaller neighboring community outside the normal metropolitan market (Fort Lauderdale). On the other hand, there are the differing situations which smack for less of the giant trying to smother the pygmy because in those cases the city of the applicant’s license, though larger than the community to be added, can hardly be thought of as a great metropolitan center acting as an all-consuming magnet (Sacramento-Stockton; Huntsville-Decatur; Pueblo-Colorado Springs). Still other grants cited by appellant involved “twin cities” each of which has long had solid recognition and standing of its own and both of which are embraced in the same markets (Tampa-St. Petersburg; Dallas-Fort Worth).

In addition to the instances on which it relied before the FCC, appellant has proffered to us later grants which it deems inconsistent with the denial in its case. Of course the Commission did not have the opportunity to discuss these instances, but we have considered them and do not find any vital contradiction. These were all uncontested applications, and the Commission’s practice has permissibly been to give more careful scrutiny when a request is opposed. More fundamentally, these decisions all appear to fall into the same distinguishable classifications as the other examples Sud-brink stresses. Some involve smaller, non-dominant, non-metropolitan communities, one of which happens to be larger than its neighbor although not in the magnetic position of Miami (which is, of course, one of the country’s great cities) (South Bend-Elkhart, Ind.; ReadingPottstown, Pa.; Nampa-Boise-Caldwell, Idaho). In others, the two cities are Tampa and St. Petersburg, which, as noted above, have long had a very close connection and each of which can stand on its own feet vis-a-vis the other. In still another instance a Fort Lauderdale station was allowed to identify with Miami — the reverse of the present situation. Since the circumstances were thus appreciably different, we cannot say that any of these grants undermines the denial of appellant’s request.

In our view, appellant’s position is not enhanced even if the “waiver” analysis set forth above is put to one side because of the frequency with which waivers have been granted. Appellant still has the burden of showing that the Commission’s practice is unreasonable, and the foregoing discussion makes it clear that we do not consider appellant to have sustained that burden.

It is true that the Commission’s treatment over the years of the dual-identification problem has left considerable to be desired by way of precise articulation of standards, explanation of particular grants, differentiation of grants from denials, and clear development of harmonious principles. There is much to be said for the substitution of published general rules in place of the ad hoc process used up to this time. But the Commission has thus far chosen, as it could, to make its exceptions case-by-case, and we think, as we have indicated, that we can discern the general paths it has followed in this instance, as well as in its other decisions. See Colorado Interstate Gas Co. v. FPC, supra, 324 U.S. at 595, 65 S.Ct. 829. The question of dual-identification is a minor part of the FCC’s work, one in which “busy agency staffs are not expected to dot M’s’ and cross ‘t’s’.” WAIT Radio v. F.C.C., supra, 418 F.2d at 1156. See also National Air Carrier Ass’n v. C.A.B., 141 U.S.App.D.C. 31, 436 F.2d 185, 194-195 (1970). For this kind of issue the Commission’s decision now under review passes muster in that it reveals and applies an intelligible principle which is reasonable in itself and can be harmonized with the other FCC actions in this field.

Affirmed.

      . The intervenor moved to dismiss the appeal for lack of jurisdiction in this court. Another division of the court denied the motion in February 1974.

      . The unified regulation for radio and television quoted above became effective on January 19, 1970, 34 Fed.Reg. 19760-63 (1969), replacing three sections dealing with AM, FM and television stations. See 43 C.F.R. §§ 73.-117 (AM), 73.287 (FM), 73.652 (TV) (1969). The earlier versions (referred to in the decisions and orders which all parties cite) merely stated that the announcement must consist of “call letters and location.” Id., see 47 C.F.R. §§ 73.30, 73.210, 73.613 (1969) (station location).

      . Without permission, as the Commission noted in its decision, WLYF could identify as “WLYF, Miami, serving Fort Lauderdale.” 41 F.C.C.2d at 820; see Examples of Application of Rule Regarding Broadcast of Statements Regarding a Station’s Licensed Location, 10 F.C.C.2d 407 (1967).

      . In light of the Commission’s current unified policy on multi-city identification, television and AM precedents are relevant to this FM case. See Amendment of Part 0 of the Commission’s Rules — Commission Organization— To delegate to the Chief, Broadcast Bureau, Authority to Waive the Provisions of Sections 73.117 and 73.287 to the Extent of Allowing Multiple-City AM and FM Station Identification, Upon Proper Request Therefor, 10 F.C. C.2d 527 (1967) [cited as Radio Delegation Order].

      . Until November 13, 1973, 47 C.F.R. § 0.281 contained a series of highly specific delegations of authority to the Chief of the Broadcast Bureau. By order dated October 31, 1973, 38 Fed.Reg. 31174 (1973), this section was amended so that it now states only broad categories of cases in which the Broadcast Bureau cannot act alone. Neither party has argued that this change has any significant effect on the standards for waiver contained in the earlier delegation orders.

      . SMSA stands for Standard Metropolitan Statistical Area, i. e., “a county or group of contiguous counties * * * which contains at least one central city of 50,000 inhabitants or more or ‘twin cities’ with a combined population of at least 50,000. Other contiguous counties are included in an SMSA if, according to certain criteria, they are essentially metropolitan in character and are socially and economically integrated with the central city.” Statistical Abstract of the U.S. 2 (93d ed. 1972).

      . WFTL’s main argument was neither of those cited above, but that WLYF had neglected Miami’s needs in its programming and should not be allowed to extend its service commitment where it had done so poorly in the past. The Commission ignored this argument in its decision, and, while it figures prominently in the FCC’s brief, this court may consider only what the agency did, not counsel’s post hoc rationalizations, spelling out different grounds. WAIT Radio, supra, 418 F.2d at 1158.

      . Intervenor argued that lack of the Fort Lauderdale studio was ground for not granting a waiver but Ponce Television, supra, 18 F.C.C.2d at 545 and Merrimack Valley, supra, 20 F.C.C.2d at 163-164, indicate that such a proposal could have been regarded as a request for a change of city of license and could have led to a denial of the waiver request.

      . WSHE, a Fort Lauderdale station which intervened briefly in opposition and then withdrew its opposition, possesses the required signal and received a waiver for dual-city “Fort Lauderdale-Miami” identification by the time of the Sudbrink decision, as did one other Fort Lauderdale FM station subsequently. Public Notice, Broadcast Actions, Report No. 11544, May 29, 1973 (WSHE); Id., Report No. 12427, July 1, 1974 (WAXY).

      . The Wometco decision also observed that grant of dual-identification in that case might inhibit development of a new Fort Lauderdale UHF station. This was an additional ground, not the only or main support of the ruling. In the present case, the Commission correctly recognized that “the UHF principle is, of course, not applicable here,” but went on to apply the other aspect of the Wometco decision.

      . Of the earlier grants distinguished by the FCC, Sacramento and Stockton are each a separate SMSA, Decatur lies outside the Huntsville SMSA, and Pueblo and Colorado Springs, Colorado are each a separate SMSA. 1970 Census of Population, Vol. 1, Characteristics of the Population, Part A, Tables 13 (Alabama, Colorado, California) (1972).

      . After argument, appellant filed a motion to remand to the Commission to reconsider the denial of Sudbrink’s application, and then to grant it. The ground of the motion was a reiteration, attempted to be buttressed by a post-argument grant to a Tampa station of the right to identify with St. Petersburg, of the argument already made in the briefs and on oral argument that the Commission’s standards are contradictory and have been inconsistently applied. In deciding the appeal we have considered this motion to remand, and now deny it for the reasons indicated in the text.


author: PER CURIAM:

text:
    TRUCK DRIVERS, OIL DRIVERS, FILLING STATION AND PLATFORM WORKERS LOCAL NO. 705 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
    No. 73-2028.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 18, 1974.
    Decided Nov. 19, 1974.

      Sheldon M. Charone, Chicago, 111., with whom George Kaufman, Washington, D.C., was on the brief, for petitioner.
    Laura Ross Blumenfeld, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., were on the brief, for respondent.
    Before LEVENTHAL and MacKINNON, Circuit Judges, and MERHIGE, United States District Judge for the Eastern District of Virginia.

       Sitting by designation pursuant to 28 U.S.CJ 292(d) (1970).

   PER CURIAM:

Petitioner, Local 705, seeks review by this court of a Decision and Order of the National Labor Relations Board, 205 NLRB No. 40 (1973), directing the union to cease and desist from the unfair labor practice found by the Board — of threatening to picket the premises of Johns-Manville with the object of requiring Johns-Manville to cease doing business with Trumbull, an employer that had a contract dispute with another Teamster local, Local 743. The Board cross-petitioned for enforcement.

We will not stop to repeat facts adequately set forth in the opinion of the Board and of its Administrative Law Judge (ALJ). Petitioner asks us to hold that the ALJ erred in the resolution of credibility so as to credit the testimony of Winkworth, the Johns-Man-ville employee relations manager, that on December 14, 1972, union business representative Jannotta warned that Local 705 would throw up a picket line at Johns-Manville’s main gate if it continued to accept deliveries from Trumbull, and that it would take some time to arrange for this picket line to be removed. The ALJ, who heard the witnesses, credited Winkworth as a “wholly believable witness” (ALJ Dec. p. 10) and found Eyster, the other witness for the General Counsel, more believable than the Union witnesses, Jannotta and Taylor. Obviously, the court cannot interfere with such determinations by an administrative agency, and must find there was substantial evidence to support the Board’s order.

The petitioner also contends that the conduct was de minimis and the case was moot before the complaint issued. A single remark may be treated as lacking the force of substantial evidence when it is isolated and is depicted against a background of correct conduct. See J. J. Newberry Co. v. NLRB, 442 F. 2d 987, 901 (2d Cir. 1971). But even a single remark may have the implication, in context, of a threat that the Board may condemn. NLRB v. Local 254, Building Service Employees International Union, 359 F.2d 289, 291 (1st Cir. 1966). ******Here the Board was within its discretion in treating as substantial a threat to picket Johns-Manville’s main gate, with 100 or more trucks passing daily into a facility at Waukegan with limited storage capacity. The context is not one of inadvertence, but of a planned visit paid to Johns-Manville’s purchasing agent by Jannotta, together with union steward Taylor and another representative, Creedon, after receiving instructions from the union’s secretary-treasurer.

As to the issue of mootness, petitioner relies on the fact that on December 29, 1972, the attorney for the union wired Johns-Manville’s Winkworth that Local 705 had no intention of picketing but merely sought cooperation, which was at Johns-Manville’s choice. This wire states that Local 705’s representatives “were instructed not to use the word ‘picket’ and merely to ask for your cooperation”. However, the record also includes Mr. Jannotta’s testimony that he did not receive any instructions as to what action to take if Johns-Manville did not “cooperate.”

While petitioner’s brief claims that the word “picket” was introduced by Winkworth, this is of no consequence if it was adopted by Jannotta and the substance of the conversation was indeed about the possibility of picketing. Certain .it is that Jannotta did not expressly state that all that was sought was “cooperation” which Johns-Manville was absolutely free to extend or withhold without any reprisal from the Union. And insofar as mootness is concerned, the union wire of December 29 came after the union had received, on December 21, a copy of the charge filed by Johns-Manville on December 19. This has a bearing on the Board’s decision to conclude whether the repudiation was timely and effective, or whether it was really a response to the imminence of the Board’s proceeding and bore a meaningful possibility of renewal in some form.

Board member Penello’s dissent concluded that a remedial order should be withheld. He stressed that the threat of picketing was repudiated before JohnsManville was schedule to receive further Trumbull deliveries. Johns-Manville had shut down its roofing operation for preventitive maintenance between December 16, 1972, and January 2, 1973. And so there were no end-of-December shipments.

The Board has latitude not to burden itself and the courts with “infinitesimally small abstract grievances.” If the court had the judgment to make, the present case seems a ripe candidate for informal handling, following formal complaint, without cluttering the dockets for administrative hearings and judicial consideration. But where to draw the line of matters trivial in their impact is primarily a task for the Board and not for the court. We are without warrant to mandate its dismissal in the case at bar.

The union’s petition for review is denied. The Board’s petition for enforcement is granted.

So ordered.

      . In that ease, the remark was: “We have permission to [picket], I didn’t say we were going to, but we have permission to do it.” 359 F.2d at 291 n. 4.
      In another case, the General Counsel decided not to proceed on a charge brought under section 8(b) (4) (ii) that arose out oí a union’s statement to an employer that picketing would begin “Thursday morning, if everything goes well with our -lawyers.” NLRB, Quarterly Report of the General Counsel, pt. II, at 8-13 (Aug. 30, 1974). The General Counsel saw this statement as a “conditional threat to picket consistent with an intent to recommend picketing to the Union’s attorney, a recommendation which could either be accepted or rejected.” NLRB, supra, at 9. In the case under review, the union’s threat to picket was not expressly conditioned on the approval of union attorneys, but could be reasonably understood by the employer to be conditioned only on the employer’s compliance with the union’s request.

      . NLRB v. Great Atlantic & Pacific Tea Co., 409 F.2d 296 (5th Cir. 1969). There liad been no picketing. But of course, the mere fact of picketing, though terminated, would cause trauma, and was indeed the core of the threat. In NLRB v. Columbia Typographical Union No. 101, I.T.U. 152 U.S. App.D.C. 365, 470 F.2d 1274, (1972), the court stated that no suggestion of bad faith is involved where local’s firing of a supervisor is reversed by the international union “long before issuance of the complaint . . . by the General Counsel.”

      . NLRB v. Columbia Typographical Union No. 101, I.T.U., supra; Dallas Mailers Union, Local No. 143 v. NLRB, 144 U.S.App. D.C. 254, 257, 259, 445 F.2d 730, 733, 735 (1971). In such cases, discretion may be exercised by the General Counsel in withholding a complaint, or by the Board in finding that there is no substantial evidence of a concrete violation, without contending that after a hearing establishing a violation it lias discretion to waive the provision of § 10(c) of the Act, 29 U.S.C. § 160(c) (1970), that if the Board shall be of the opinion that a person has engaged in unfair labor practices it shall issue a cease and desist order. International Woodworkers of America, AFL-CIO, Local 3-10 v. NLRB, 127 U.S.App.D.C. 81, 83, 380 F.2d 628, 630 (1967).