author: NICHOLS, Judge:

text:
    UNITED STATES of America, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, American Airlines, Inc., et al., and Northwest Airlines, Inc., Intervenors. UNITED STATES of America, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Braniff Airways, Inc., et al., and Northwest Airlines, Inc., Intervenors.
    Nos. 73-2116 and 74-1794.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 27, 1974.
    Decided Jan. 31, 1975.
    James C. Hair, Jr., Atty., Washington, D. C., with whom Carla A. Hills, Asst. Atty. Gen., Irving Jaffe, Deputy Asst. Atty. Gen. and Robert E. Kopp, Washington, D. C., were on the brief, for petitioner.
    Robert L. Toomey, Atty., Washington, D. C., with whom Richard Littell, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Glen M. Bendixsen, Associate Gen. Counsel and Rozann M. Skozen, Atty., Washington, D. C., were on the brief for respondent. Also Jay L. Wit-kin and Thomas J. Heye, Washington, D. C., entered appearances for respondent.
    Jerrold Scoutt, Jr., Washington, D. C., with whom Ralph L. Kissick and John H. Quinn, Jr., Washington, D. C., were on the brief, for Braniff Airways, Inc. and others.

      James M. Verner and Ronald D. Eastman, Washington, D. C., were on the brief, for Intervenor Northwest Airlines, Inc.
    Before WILKEY, Circuit Judge, NICHOLS, Judge, United States Court of Claims, and GASCH, United States District Court Judge for the District of Columbia.

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

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   NICHOLS, Judge:

Petitioner, United States, on behalf of the Defense Department (DOD), seeks review of Civil Aeronautics Board (CAB) Economic Regulations (ER) 819 and 861 (of August 28, 1973, and June 11, 1974, respectively). The effect of these ER’s is that DOD owes, as stated by counsel roughly, an additional $5,000,000 to the intervenors, United States commercial airlines, for charter air services rendered to the Military Airlift Command (MAC) during the period July 1, 1972, to August 28, 1973.

The sole issue is the power of the CAB to correct an order founded on an error of fact and to make its correction in this case retroactive to a date not earlier than the initiation of the original proceedings. There is no challenge to the reasonableness of the rates as reset.

This case is different from the usual CAB-set public tariffs. Under 14 C.F.R. Part 288, the CAB merely prescribes the minimum rates which carriers must charge MAC, leaving the actual rates to contract negotiations between the carriers and MAC. 14 C.F.R. §§ 288.5, 288.6, 288.7, ER — 536, 33 Fed.Reg. 6645, May 1, 1968; ER — 786, 38 Fed.Reg. 745, January 4, 1973; ER-^94, 32 Fed.Reg. 7901, June 1, 1967; and as otherwise amended. In actual practice, the minimum rates are usually also the contract rates. In theory the CAB is not setting rates under 49 U.S.C. § 1482(d), but is granting exemptions on terms under 49 U.S.C. § 1386(b)(1).

This procedure under Part 288 was established in 1960 with Congressional Committee concurrence after it was found that unlimited competition for MAC business resulted in too low an economic return to the carriers for the carriers to upgrade their equipment into the jet age. Under the present procedure, MAC pays reasonable profits to the carriers so that the carriers in turn can keep their emergency CRAF (Civil Reserve Air Fleet) equipped to DOD needs. To the extent that MAC fails to pay reasonable charter service fees, to that extent MAC’S emergency CRAF resources . deteriorate.

I

Since the chronology of events is critical to the resolution of this case, the following table sets forth the important dates of the CAB proceedings:

December 1970 Informal rate review proceedings initiated by CAB request of cost data from carriers.

May 11, 1971 Carriers’ formal petition for rate increases filed.

June 1971 CAB merges formal petition and informal proceedings into formal proceedings.

August 1971 Price freeze period (Aug. 1971-Mar. 1972) under the President’s Economic Stabilization Program complicates and delays rate proceedings.

December 29, 1972 ER-786 (38 Fed.Reg. 745-755, Jan. 4, 1973) issues, raising minimum charter rates 2.66% retroactive to July 1, 1971.

February 16 and 23, 1973 Carriers formally request reconsideration and amendment of ER-786, alleging errors as set forth hereinafter. They seek adjustment of minimum rates for the period beginning July 1, 1972.

March 14,1973 DOD opposes reconsideration and amendment of ER-786.

June 5, 1973 Economic Draft Regulation 249 (38 Fed.Reg. 15368-373, June 11, 1973) issues, correcting some of “errors” in ER-786 that carriers complained of.

July 2 and 3, 1973 Carriers and DOD file objections to draft regulation.

August 28, 1973 ER-819 (38 Fed.Reg. 23772-777, Sept. 4, 1973) issues, retroactively increasing rates to July 1, 1972, as sought by airlines, but delaying final decision on June 13-Aug. 12, 1973 freeze period pending a Cost of Living Council ruling.

March 12,1974 DOD files a suit in this court to review legality of ER-819.

June 11, 1974 ER-861 (39 Fed.Reg. 20962-64, June 17, 1974 issues after April 16, 1974) letter-ruling from Cost of Living Council authorizes CAB to apply ER-819 rates to June 13-Aug. 12, 1973 freeze period.

October 29, 1974 Parties move consolidation of ER-819 and ER-861 review on grounds that only single common issue in either case: statutory power of CAB to make ER-819 rates retroactive to July 1, 1972, (in effect correcting ER-786 only for fiscal years after that date and leaving ER-786 rates for July 1, 1971-June 30, 1972, unchallenged). Consolidation motion and stipulations are accepted and granted by this court on Nov. 8, 1974.

November 1974 Carriers supplement record for appeal with parts of record from concurrent proceedings before Armed Services Board of Contract Appeals (ASBCA) in which DOD contends that CAB minimum rates do not bind DOD contracts.

The above table shows that formal proceedings commenced on May 11, 1971; that ER — 786 covering rates from July 1, 1971, onward was issued December 29, 1972; that the CAB granted the carriers’ timely request for amendment to ER-786 by increasing the rates for services on or after July 1, 1972, by ER — 819 and ER — 861; and that the real contest here is over CAB powers to correct its own factual errors in a post-trial proceeding. The question is important not only to past events, but to current proceedings in which CAB is trying to keep rates in line with rapidly escalating costs.

II

It is obvious from ER — 819 that the CAB has considered and rejected the DOD retroactivity position:

We do not accept DOD’s argument that the Board has no authority to alter rates retroactively to correct errors of fact. We would agree that amending rates retroactively merely on the basis of a review and finding that the return on investment was either greater or less than that predicted when the rates were set would be unjustified. However, that is not the case here. As we stated in EDR — 249 [Economic Draft Regulation], the carriers brought to our attention in early 1973 specific errors made in establishing the fiscal 1973 rates in ER — 786. In our opinion, the Board not only has the authority but the duty to correct its error, whether the resulting change increased or decreased the rates retroactively. (At 38 Fed.Reg. 23772 (1973)). ******
* * * For carriers as a group, investment per, mile in 1972 rose by only 13.9 percent over the level recognized for rate purposes in ER — 786. Hourly utilization declined by 13.6 percent. However these comparisons to ER — 786 are somewhat misleading taken by themselves. The fact of the matter is that the MAC services actually performed in 1972 were substantially smaller in terms of miles flown than we projected in ER — 786. The same is true with respect to the amount of investment allocated to these MAC services. The 13.6 percent drop in aircraft utilization in MAC services is reflective of the relatively high levels of hourly utilization .on which the ER — 786 rates were based, and those levels were in turn patterned after the high utilization rates achieved in earlier periods of high activity in MAC charters. It is clear that the substantial contraction of these operations is one of the factors underlying the rising unit cost trend and the carriers’ less than satisfactory earnings’ results. (At 38 Fed.Reg. 23773 (1973)).

Also, the CAB says that the drop in the mix of passenger carriage in the MAC operation from 80% to 50% masked the effect of inflation on the carriers’ costs so that ER — 786 failed to allow for it sufficiently.

It is clear from a reading of the disputed ER’s that the CAB received and disposed of a large number of related and separate contentions raised by the various parties. However on this appeal, only the single issue of retroactivity power has been raised, considerably easing the burden on the court in reviewing the CAB regulations.

Before moving into a discussion of the legal issues surrounding retroactivity powers, it is necessary to point out that the DOD has not made — and indeed cannot — a good faith claim that it does not otherwise justly owe the carriers the money. The initial errors that were subsequently corrected arose, as noted above, from the false factual premises. Thus the CAB, which is charged with the duty in 49 U.S.C. § 1302, of maintaining a healthy and viable airline industry, was truly forced to correct its mistake in what it had set as an indefinite rate for the future. The $5,000,000 DOD would save if it were to prevail must be paid for somehow. If DOD does not pay for its services, the loss will fall initially at least on the Airlines’ shareholders, a result which we find contrary to the principle of United States v. New York Central RR Co., 279 U.S. 73, 49 S.Ct. 260, 73 L.Ed. 619 (1929), discussed infra.

Ill

In regard to the legal issues surrounding the retroactivity question, three points are decisive: that the CAB enjoys the same broad post-trial relief powers of any adjudicatory body in the Federal system; that none of the non-retroactive rate-making cases cited to the contrary apply to this case; and that regardless of nomenclature, the proceeding below was in fact a post-trial relief procedure comparable to one in a Federal court under F.R.Civ.P. 60.

A. The DOD at the outset mistakenly relied on 49 U.S.C. § 1482(d), which permits CAB, after hearing, etc., to fix rates “thereafter to be demanded * * * ” The CAB was not fixing rates under that section here.

Post-trial relief used to be a matter of filing the proper writ — and the case law from the 19th century is full of disputes over the metes and bounds of the various writs. However, since World War II times the Federal courts have had the simple and broad language of Rule 60 to go by, escaping in large part from the narrow confines of such writs as coram nobis and certiorari. See, 7 Moore’s Federal Practice U 60.14 and II 60.27.

Case law under Rule 60 indicates that the trial court’s discretion is broad, that regulatory and other boards substituting for trial courts in finding facts have similar broad discretion, and that liberal relief is the guiding principle of Rule 60.

In American Trucking Ass’ns v. Frisco Co., 358 U.S. 133, 145, 79 S.Ct. 170, 177, 3 L.Ed.2d 172 (1958), regarding the ICC (Interstate Commerce Commission) power to correct mistakes, the Court said:

It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake. Gagnon v. United States, 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745. Rule 60(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., recognizes this power and specifically provides that “[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” A similar power is vested in the Interstate Commerce Commission. Section 17(3) of the Act * * * that: “The Commission * * * ” * * * To hold otherwise would be to say that once an error has occurred the Commission is powerless to take remedial steps. This would not, as Congress provided, “best conduce to the ends of justice.” In fact, the presence of authority in administrative officers and tribunals to correct such errors has long been recognized — probably so well recognized that little discussion has ensued in the reported cases. Bell v. Hearne, [60 U.S. 252,] 19 How. 252, 15 L.Ed. 614.

In the above case, the error was the inadvertent omission of the right-to-amend clause from the certificate of public convenience and necessity that ICC had issued.

In Klapprott v. United States, 335 U.S. 601, 613-614, 69 S.Ct. 384, 93 L.Ed. 266 (1949), Justice Black gave a similar broad interpretation to Rule 60(b). He said at 614, 69 S.Ct. at 390:

* * * Furthermore 60(b) strongly indicates on its face that courts no longer are to be hemmed in by the uncertain boundaries of these and other common law remedial tools. In simple English, the language of the “other reason” clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.

In Bridoux v. Eastern Air Lines, 93 U.S.App.D.C. 369, 214 F.2d 207, 209-210 (1954), this court through Judge Fahy stated in regard to Rule 60(b) that:

* * * It has long been held in this jurisdiction that an application to vacate a judgment is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed on appeal except for abuse. * * * We do not understand Rule 60(b) to change this basic principle. * * * But the Rule does bring to bear a more liberal attitude than pertained before its adoption. * * *

Thus it is unassailable that the Federal courts have powers under Rule 60 to correct their errors, within the prescribéd time limits, in the exercise of sound discretion. In light of the place that the CAB, and certain other regulatory boards and commissions hold, as substitutes for Federal trial courts as fact finders, in certain areas of limited subject matter jurisdiction, it seems reasonable that they have equally broad discretion to correct their factual mistakes.

B. However, in the area of utility rate-setting, Rule 60 type relief is subject to statutory limits.

The statute that governs ICC, 49 U.S.C. § 15(1), specifies that:

* * * the Commission is authorized and empowered to determine and prescribe what WILL be the just and reasonable individual or joint rate, fare, or charge, or rates, fares, or charges, TO BE THEREAFTER observed in such case, * * *

The DOD has cited to us several cases that interpret that statute quite literally, requiring all rate-setting by the ICC to be prospective only. Arizona Grocery v. Atchison, Topeka & Santa Fe RR, 284 U.S. 371, 52 S.Ct. 183, 76 L.Ed. 348 (1932); Brimstone RR. & Canal Co. v. United States, 276 U.S. 104, 48 S.Ct. 282, 72 L.Ed. 487 (1928); and United States v. Baltimore & Ohio RR., 284 U.S. 195, 52 S.Ct. 109, 76 L.Ed. 243 (1931). The United States was not a party as a user of carrier services, in those cases, but as the party sued for review of an ICC decision affecting others.

The broad scope that DOD seeks to give these cases is shattered by a contemporary case dealing with mail rates, which involve essentially a two-party relationship between Government and carrier, regulated by the ICC: United States v. New York Central RR. Co., 279 U.S. 73, 49 S.Ct. 260, 73 L.Ed. 619 (1929). The Supreme Court, per Mr. Justice Holmes, affirming a United States Court of Claims decision, and deciding on both statutory intent and Fifth Amendment just compensation grounds, stated that, once sovereign immunity had been waived by Congress, the Government was constitutionally liable for the full retroactive fares due on services and benefits the Government received, back to the date the proceeding was commenced.

The railroad’s mail service was compulsory, a criminal fine being prescribed for refusal to carry Government mail. This of course made Holmes’ invocation of the Fifth Amendment more appropriate than it would be here. The parties here do not claim that the Fifth Amendment directly supports the CAB’s position. However, the statutory construction that imputes to Congress a desire to have the ICC settle the Government’s entire liability, back to the date of petitioning the ICC, is in point. Not only is there lacking any statutory language to confine the CAB to rates thereafter to be assessed, but there is lacking any reason why such a restriction should be desired, in the context of contractual relations existing between carrier and Government rather than between carrier and public. The natural thing is that the CAB should have, as the ICC was held to have, full power to deal with the situation before it. Limited retroactive adjustment of the prices the Government pays for goods and services (e. g., Renegotiation Act of 1951, 50 U.S.C. (App.) § 1211 and ff.) is too common to be regarded as anomalous or to offer administrative difficulty.

In setting rates for carriage of airmail, the authority of the New York Central case carries over, despite the relative absence of compulsion, to the extent that rates retroactive to commencement of the proceeding are permissible. TWA v. Civil Aeronautics Board, 336 U.S. 601, 69 S.Ct. 756, 93 L.Ed. 911 (1949). Mr. Justice Douglas said at 605, 69 S.Ct. at 758:

* * * For the rates of carriers and other utilities fixed by public authorities, while usually prospective, are sometimes made retroactive to the date of the commencement of the rate-making proceeding. See United States v. New York Central R. Co., 279 U.S. 73, [49 S.Ct. 260, 73 L.Ed. 619]. * * *

This conclusion of course was much aided by the provision as to airmail rates, now 49 U.S.C. § 1376, that the Board may make them effective from such “date as it shall determine to be proper.” However, the legislative history as cited by Justice Douglas in a footnote, and set forth by this court in the decision below, 83 U.S.App.D.C. 358, 169 F.2d 893 (1948), shows that the provision was intended to make the New York Central rule applicable to airmail rates, despite the absence of compulsion, resolving a dispute among ICC Commissioners, some of whom would have limited the case to compulsory carriage of mails only.

The court is required to decide whether the Arizona Grocery or New York Central line of cases are to be followed. In the absence of statute directly applicable, we may properly consider 49 U.S.C. § 1376 as a legislative decision on a closely related and analogous matter. Moragne v. States Marine Lines, 398 U.S. 375, 406, 90 S.Ct. 1772, 26 L.Ed.2d 339 and ff. (1970). There can be no doubt where this will lead us, for, as we have already said, regulation of rates for Government overseas air charters is far more closely related to regulation of rates for air carriage of mail, than it is to regulation of rates charged travelers and shippers by air generally.

Several other factors work against a blind adherence to the Arizona Grocery line of cases.

The CAB statute is different (and less restrictive):

The Board is empowered to perform such acts, to conduct such investigations, to ISSUE and AMEND such orders, and to make and AMEND such general or special rules, regulations, and procedure, pursuant to and consistent with the provisions of this chapter, as it shall deem necessary to carry out the provisions of, and to exercise and perform its powers and duties under, this chapter. 49 U.S.C. § 1324(a).

Lastly there are due process, fairness and notice conditions implicit in any Government action. It is one thing to surcharge someone retroactively without prior notice and another thing to exact the same surcharge with prior notice. In this case, the Government was very clearly a party to the whole rate proceeding, the DOD submitting briefs and its objections at every step of the way. In fact a major cause of the error that had to be corrected was DOD failure to ensure that the CAB acted with a correct forecast of DOD MAC needs.

C. The DOD contends that, even if a rehearing procedure could retroactively adjust rates back to the date the proceeding started the CAB procedure below was not a rehearing but an entirely new proceeding. The CAB brief points out:

In general, we do not accept petitions for reconsideration of adopted rules because of concern for the adequacy of notice of the filing by interested persons since in a rule making proceeding as opposed to a formal investigation there are no parties upon whom service of petition is required. For this reason, in the typical case, to insure interested persons notice of the filing we treat a so-called petition for reconsideration as an original petition for rule making and institute a new proceeding. In the present case, however, the DOD, the only party affected by the rates in question, had notice of the filing of the petition, and has afforded itself of the opportunity to make its views known on the matters at issue. Under these circumstances, we find it appropriate to accept the carriers’ petition, especially considering that the relief requested is more nearly akin to reconsideration than it is a petition for rule making, and to act thereon. (ER — 845, adopted May 1, 1974).

Thus, since the reconsideration afforded the parties’ objections to ER — 786 was generally of the same type as afforded by Rule 60, we conclude that in substance the CAB provided Rule 60 type relief, by whatever name such relief was called.

IV

Thus in light of the case law under Rule 60, the position of the CAB as an agency in the Federal adjudicatory system, the broad statutory powers given the CAB, the case law applicable to these statutory powers, and the absence of any compelling, countervailing considerations, we conclude that the CAB acted within its statutory authority when it granted the airlines’ petition for rate increases retroactive to July 1, 1972, by correcting factual errors in its earlier ER.

Further, under the doctrine reaffirmed in Slick Airways v. United States, 154 Ct.Cl. 417, 292 F.2d 515 (1961), and Emery Air Freight Corp. v. United States, 205 Ct.Cl. 49, 499 F.2d 1255 (1974), there is no basis in law for the DOD to argue that DOD is not obligated to pay the minimum rates set by the CAB and charged by the carriers under 49 U.S.C. § 1373(b); and contract clauses to the contrary are void as contrary to Federal statutes.

The orders of the Civil Aeronautics Board, Economic Regulations 819 and 861 (of Aug. 28, 1973 and June 11, 1974, respectively) are affirmed, and the petitions of the United States in both actions are dismissed.


source: Caselaw Access Project

author: TAMM, Circuit Judge: EDWARDS, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America v. William BATTLE, Appellant.
    No. 73-1862.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 23, 1974.
    Decided Jan. 9, 1975.
    Rehearing Denied Feb. 18. 1975.

      Fred Warren Bennett, Washington, D. C., for appellant.
    Joseph B. Valder, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and Robert S. Tignor, Asst. U. S. Attys., were on the brief for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.
    Before EDWARDS, Circuit Judge for the Sixth Circuit, and TAMM and WILKEY, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   TAMM, Circuit Judge:

Appellant, indicted on a charge of possession of stolen mail in violation of 18 U.S.C. § 1708 (1970), was found not guilty by reason of insanity by Senior District Court Judge Leonard P. Walsh, who ordered Battle committed to St. Elizabeth’s Hospital. After a three month hospitalization, St. Elizabeth’s recommended appellant’s unconditional release, and the District Court entered an appropriate order. Appellant argues that the indictment should be dismissed because the principal evidence against him, a United States Treasury check, was the fruit of an unconstitutional search and seizure. The Government urges us to dismiss the appeal as moot in light of appellant’s unconditional release. We find the appeal is not moot, reject appellant’s fourth amendment argument, and affirm.

I. MOOTNESS

The order for release, although unconditional, did not set aside the finding of not guilty by reason of insanity or the order of commitment to St. Elizabeth’s Hospital. The adjudication of insanity, which is the functional equivalent to an adjudication of guilty but insane, remains upon appellant’s record. See, e. g., United States v. Ashe, 155 U.S.App.D.C. 457, 478 F.2d 661, 663 (1973); Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129, 138 n.21 (1967). Clearly these orders would not have been entered if the motion to suppress had been granted. Although the Government argues that appellant is a schizophrenic with 20 previous hospitalizations, we cannot say on this record that there are not collateral consequences from this order, since it is apparently the only formal order of commitment for insanity on his record. See In re Ballay, 157 U.S. App.D.C. 59, 482 F.2d 648, 651-653 (1973); Justin v. Jacobs, 145 U.S.App. D.C. 355, 449 F.2d 1017, 1018-1020 (1971); In re Helman, 109 U.S.App.D.C. 375, 288 F.2d 159 (1961). Under the standards of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we feel that this appeal remains a continuing case and controversy. See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

II. THE FOURTH AMENDMENT ISSUE

The record of the suppression hearing discloses the following:

Mrs. Barbara Walker lived in an apartment above a grocery store at 2216 Eighteenth Street, N.W., Washington, D.C. On November 30, 1972, Mrs. Walker, expecting her food stamp check, went down to inspect her mailbox, but found it empty. She then ran across the street, intercepted her mailman, and inquired about her check, telling him it was not in her mailbox. The postman told her, “Yes, it was, Mrs. Walker, because I just put in there.” Tr. 51 — 53.

Mrs. Helen Bell testified that she had seen the mailman place mail in Mrs. Walker’s mailbox (two doors away) and then saw appellant raise the top and look in the box. Tr. 27 — 30. Although she did not see appellant remove anything from the mailbox, he was still standing close to it when Mrs. Bell went to the store. Tr. 29 — 30. Later when Mrs. Bell saw appellant inside the store, she told the store manager, Mrs. Baldwin, that she had seen him at Mrs. Walker’s mailbox. Tr. 31 — 33. The store owner reported this to Detective Swiner when Mrs. Walker brought the detective to the store. Tr. 43, 64.

Approximately two hours later, Detective Swiner received a radio call to return to the same store, and on arrival he found Mrs. Baldwin and Mrs. Walker there, along with appellant whom they identified to Swiner. Swiner thereupon arrested appellant and warned him of his rights. Appellant had a suitcase and a shopping bag with him, and these items were taken, along with appellant, to the Thirteenth Precinct Station. Tr. 68 — 70. There, a search of the shopping bag revealed the government envelope containing Mrs. Walker’s food stamp check. Tr. 70-72.

Asked why the shopping bag was not searched at the scene of Battle’s arrest, Detective Swiner testified that “[pjeople were gathering and there was a lot of commotion going on, so it was best to examine it at the office rather than at the store.” Tr. 73. He repeated that explanation on cross-examination. Tr. 83. Also on cross-examination, Detective Swiner admitted he had neither an arrest nor search warrant at the time and that he “supposed a Magistrate would have been available at the time (a weekday afternoon). Tr. 85 — 86.

Appellant argues both that his warrantless arrest was not based upon probable cause and that the warrantless search of the shopping bag violated the fourth amendment. It is clear that from the facts recounted above there existed probable cause for appellant’s arrest. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). As to the search of the shopping bag, it is now firmly established that the police may conduct a warrantless search of a lawfully arrested person and the area within his immediate control, both for weapons and for fruits and instrumentalities of the crime which might be concealed or. destroyed. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The question, therefore, is whether the search of the shopping bag falls within this doctrine.

In Draper v. United States, 358 U.S. 307, 314, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the Supreme Court upheld, albeit without discussion, the warrantless search of a suitcase as incident to a lawful arrest. Several circuit courts have also rejected challenges to the warrant-less search of luggage or briefcases after a valid arrest. See United States v. Kaye, 492 F.2d 744 (6th Cir. 1974); United States v. Prick, 490 F.2d 666 (5th Cir. 1973), cert. denied sub nom, Peterson v. United States, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974); United States v. Burch, 471 F.2d 1314 (6th Cir. 1973); United States v. Mehciz, 437 F.2d 145 (9th Cir.), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971). But cf. United States v. Soriano, 482 F.2d 469 (5th Cir. 1973) (warrantless search of luggage seized from automobile trunk held invalid). We agree and hold that hand baggage within the immediate control of the arrestee falls within the scope of a permissible search incident to arrest.

The only remaining inquiry is whether the circumstances of this case— the fact that the search was delayed until the arrestee was brought to the police station — remove the search from the rule articulated above. We think not. The Supreme Court’s recent decision in United States v. Edwards provides the controlling rationale:

once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.

415 U.S. 800, 807, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974). We cannot believé that the Edwards rule could be clearer, or be more applicable to the search complained of here.

Moreover, we note that even before Edwards, courts of appeals upheld suitcase searches which occurred sometime after arrest. In United States v. Kaye, supra, the search took place at an airport security office after appellant had been subdued and disarmed. In United States v. Mehciz, supra, the search occurred after appellant had been handcuffed. If there are any doubts about the correctness of these holdings, Edwards has certainly resolved them.

The judgment is

Affirmed.

EDWARDS, Circuit Judge

(concurring):

I believe the Fourth Amendment should be construed so as to require search warrant procedures under the facts of this case. 1) The defendant was under arrest. 2) The shopping bag was in the police station under complete police control. 3) There was a magistrate available.

I have to agree, however, that the Supreme Court’s decisions in the Draper, Robinson and Edwards cases relied upon and cited in Judge Tamm’s opinion have decided this issue otherwise. For that reason I concur.


author: BAZELON, Chief Judge: LEVENTHAL, Circuit Judge

text:
    UNITED STATES of America v. Conrad S. DANCY, Appellant (two cases).
    Nos. 71-1856, 72-1452.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 11, 1973.
    Decided Jan. 2, 1975.

      Carol Garfiel Freeman, Washington, D. C. (appointed by this Court), for appellant.
    Stuart M. Gerson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, Asst. U. S. Atty., and Vincent R. Alto, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee.
    Before BAZELON, Chief Judge and LEVENTHAL and ROBINSON, Circuit Judges.
   BAZELON, Chief Judge:

Appellant, Conrad Dancy, was convicted on September 23, 1971 of first degree felony murder and other lesser offenses, stemming from the shooting death of William Darden on July 6, 1970. Since Dancy was under 22 years of age at the time of conviction, he was eligible to be considered for sentencing to a youth treatment facility under the Federal Youth Corrections Act (FYCA). To assist him in his sentencing decision, the trial judge elected, pursuant to 18 U.S.C. § 5010(e), to commit Dancy to a sixty day study and evaluation at the Lorton Youth Center. The resulting report recommended that Dancy be denied FYCA sentencing and be given an adult sentence. Relying on that recommendation, the trial judge sentenced Dancy to an adult term of imprisonment of twenty years to life on the first degree murder count and to lesser concurrent terms on the other counts.

Dancy appealed both the conviction and the denial of FYCA sentencing. In a memorandum opinion issued on January 29, 1974, we disposed of all claims relating to his conviction. At the same time we stayed consideration of the FYCA issues raised by the case pending the Supreme Court’s decision in Dorszynski v. United States. Dorszynski now having been decided, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), we proceed to an examination of those issues, and, based on that examination, remand the case for resentencing.

I

Enacted in 1950, the Federal Youth Corrections Act was a Congressional response to the fact that persons between the ages of 18 and 22 were proportionately far over-represented in national crime statistics. It was thought that psychological and physiological factors created a special propensity in persons in that age bracket to engage in criminal activity. Congress thought it possible to steer many of these young offenders away from a continued life of crime, believing that “young persons convicted of crime have, as a general rule, a higher potential for being rehabilitated to become useful citizens than do older, more mature offenders.” In order to realize that potential, the FYCA provides that eligible young offenders be committed to specially established rehabilitative facilities, there to receive “essential varieties of treatment.” Such facilities provide the added benefit — also contemplated by the Act — of insuring that young offenders are not intermixed in their institutionalization with hardened adult criminals.

The sentencing alternatives available to a trial court under the FYCA are set out in 18 U.S.C. § 5010. If commitment is unnecessary, the trial judge may place the youth offender on probation. Other-

wise, he may sentence the youth to the custody of the Attorney General for treatment under the Act. Finally, if the trial judge finds that “the youth offender will not derive benefit from [Youth Corrections Act] treatment,” he may “sentence the youth offender under any other applicable penalty provision [i. e. he may sentence him as an adult].”

In order to insure that the trial judge’s sentencing decision be an informed one, Congress wisely provided in § 5010(e) of the Act that “[i]f the court desires additional information as to whether a youth offender will derive benefit from treatment [under the Act] it may order that he be committed . . . for observation and

study at an appropriate classification center or agency” and that “[w]ithin sixty days from the date of the order . the [Youth Services] Division shall report to the court its findings.”

The classification center ordinarily-used for young offenders convicted in the District of Columbia is the Lorton Youth Center. There the conduct of the § 5010(e) study is the responsibility of a Youth Center Classification Committee. The Committee is composed of a clinical psychologist and a Classification and Parole Officer and is chaired by the Administrator of the Diagnostic Unit of the Youth Center. The Classification and Parole Officer is responsible for compiling a classification study reviewing the circumstances of the offense in question, the offender’s social and family background and the quality of his relationship with the staff while at the Center. He may conduct interviews not only with the offender but also with his family and community associates. The clinical psychologist compiles a personality profile of the offender, based on interviews with him and certain projective and intelligence tests. The three Classification Committee members prepare a joint evaluation and recommendation. This evaluation and recommendation, along with the individual reports of the Classification and Parole Officer and the clinical psychologist and a cover letter from the Superintendent or Assistant Director of the Youth Center are forwarded to the D.C. Board of Parole. Based on this material, the Board makes its own recommendation and submits the entire package of documents, the completed § 5010(e) study, to the court.

II

The implementation of the sentencing provisions of the FYCA has been the subject of much litigation in this and other Circuits. Last Term, the Supreme Court addressed the area for the first time in Dorszynski v. United States. In that case, a young man of 19 had been found guilty of possessing a controlled substance without a prescription. Although trial counsel requested that the defendant be “placed on probation under the Youth Corrections Act”, the trial judge sentenced the defendant to an adult term without ordering a § 5010(e) study and evaluation and, indeed, without making any reference at all to the FYCA. The Supreme Court remanded the case for resentencing. It held — as this court had before — that before a trial judge may sentence a youth offender to an adult term he must make an expiicit finding that the eligible youth will “not benefit” from FYCA treatment. However, the Supreme Court also indicated that, in giving an adult sentence, the trial judge is not required to give a statement as to the reasons which underlay his finding of “no benefit.” The Court stated that the FYCA was intended “to preserve unfettered the sentencing discretion of federal district judges”, and the only purpose of requiring a statement of reasons would be “to facilitate appellate supervision of, and thus to limit, the trial court’s sentencing discretion.” The Court was careful to point out in ■Dorszynski, however, that appellate courts do have a limited role to perform in the sentencing area. In noting that the appellant made no contention that “the District Court relied upon improper or inaccurate information”, the Court cited United States v. Tucker. In so doing, the Court reaffirmed the established doctrine that appellate courts have a duty to scrutinize sentencing decisions to insure that they are not based on information that is false or otherwise improper.

The Court was also careful to distinguish between “appellate modification of a statutorily-authorized sentence” and “careful scrutiny of the judicial process by which the particular punishment was determined.” While the former is generally inappropriate, the latter is “on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases.” Careful appellate review of the judicial sentencing process does not impinge upon the trial judge’s discretion to impose sentence within statutory limits. Rather, it simply aims to guarantee that the trial judge’s sentencing discretion is actually exercised and that the information relied upon by him is not unreliable, improper, or grossly insufficient.

Staying well within the bounds of the appellate role described in Dorszynski, we conclude for reasons detailed in III, infra, that Dancy’s case must be remanded for resentencing.

Ill

A

In sentencing Dancy to an adult term, the trial judge commented as follows: “This court is of the opinion that in view of the fact that the Youth Center itself has indicated that sentencing him as a youth would not be the proper procedure and that they would not be able to supply the needs that he has; and although the Court recognizes that mere incarceration may not be rehabilitative, nevertheless, the Court has no alternative under the statute.” (Sent. Tr. 4-5). (emphasis added)

The trial judge evidently believed that the statute barred him from sentencing Dancy to a youth term against the recommendation of Youth Center officials. This apparent surrender of discretion and responsibility to the Youth Center authorities is fundamentally at odds with the demands of traditional sentencing doctrine that requires the trial judge to exercise his statutory discretion. More importantly, the trial judge’s claim that he had “no alternative” is manifestly inconsistent with the provision of the FYCA which places the responsibility both for making a finding of “no benefit” and for making the sentencing decision attendant thereto on the trial court alone: “If the court shall find that the youth offender will not derive benefit . . . then the court may sentence the youth offender under any other applicable penalty provision.”

While a § 5010(e) report is a potentially useful pre-sentencing aid, it is designed only to provide “additional information as to whether a youth offender will derive benefit from treatment.” The trial judge may accept the recommendation of the § 5010(e) report. But he is also free to reject it. In order to make an informed sentencing decision he may require a detailed explanation of the report, seek its supplementation with further information and/or inquire into the manner of its preparation.

B

The recommendation of the Youth Center’s § 5010(e) Classification Committee reveals another deficiency in the manner in which Dancy was sentenced. That recommendation — which the trial judge apparently believed allowed him “no alternative under the statute” — was evidently based on misinformation.

The Classification Committee which conducted Dancy’s § 5010(e) study recommended that “Dancy should be sentenced as an adult with consideration for as short a term that is legally possible within the framework of this statute.” This mention of a short sentence may well have been an effort by the Committee to strike a compromise between recommending a youth sentence and a long term adult sentence. The desire for such a compromise apparently stemmed from the opinion of the clinical psychologist who examined Dancy that the appellant was not totally devoid of rehabilitative potential but rather “could benefit from psychotherapy as well as vocational training and additional education.” In his individual report, the clinical psychologist recommended sentencing as an adult “with the shortest term possible for his charge.”

What was apparently unknown to the members of the Classification Committee — including the clinical psychologist— was that the trial judge had absolutely no discretion to give Dancy a short adult sentence. The mandatory minimum sentence for first degree murder, the central crime for which Dancy was convicted, is twenty years imprisonment with no possibility of parole. Uninformed as to the sentencing alternatives available to the trial judge, the Classification Committee suggested a sentence that the trial court was powerless to impose.

It is at least uncertain what the Classification Committee would have recommended had it known that an adult sentence for Dancy meant a definite term of imprisonment of at least twenty years. It would appear from the clinical psychologist’s expressed concern that as likely as not he would have found such a mandatory minimum term inconsistent with the benefits he thought Dancy could derive from “psychotherapy, vocational training and additional education.” At any rate it would be “callous” to •assume that the recommendation of the Classification Committee would necessarily have been the same had its members been accurately informed.

So far as the record before us is concerned, it would appear that the trial judge failed to exercise his discretion in sentencing Dancy and that he placed full reliance on a recommendation which itself may have been the product of misinformation. Given these factors, we must remand this case for resentencing.

IV

The apparent reliance of the Classification Committee on the erroneous premise that Dancy was eligible for a short sentence may well not be the only defect in his § 5010(e) study. Since Dancy was sentenced, District Court proceedings on the conduct of § 5010(e) studies have been held in the cases of United States v. Norcome and United States v. Tillman. Information generated at these hearings raises the possibility that all studies — including Dancy’s — that are conducted at the Lorton Youth Center suffer from highly serious procedural and substantive defects. Our responsibility to “careful[ly] scrutinize] the judicial process” and to insure that “the trial judge has considered the information available with some regard for its reliability” compels us to take judicial notice of those hearings. On remand we suggest that the District Court consider their relevance and the consequent possible need for detailed inquiry into the manner in which the § 5010(e) study was conducted in Dancy’s case.

The Norcome hearing was held after two § 5010(e) studies conducted at Lorton had recommended that the defendant be given an adult sentence. During the course of the hearing, however, every one of the officials who had originally participated in making the adult recommendations reversed his original position that Youth Act treatment was not appropriate for Norcome.. The trial judge ultimately gave Norcome a Youth Act sentence.

In Tillman, the trial judge sentenced the defendant to an adult term on the basis of a § 5010(e) report recommendation. While the case was on appeal the record was remanded on Tillman’s motion to allow the trial judge to recommit him for an updated § 5010(e) study. That report also recommended adult sen-fencing. However, on the basis of hearings held on the conduct of both studies, the trial judge reversed his original position and, contrary to the § 5010(e) study recommendations, imposed sentence under the FYCA.

These reversals of position make plain the crucial nature of the information generated at the Norcome and Tillman hearings. Uncovered at the hearings were a number of concrete and profoundly disturbing defects in the conduct of the Norcome and Tillman § 5010(e) studies. There is no reason to believe from the testimony at the hearings that these defects were anything other than systemwide — affecting Dancy’s study and, indeed, every § 5010(e) study conducted at Lorton. The trial judges in Norcome and Tillman clearly perceived the problems as extending considerably beyond the particular cases before them. In Norcome, the trial court concluded that the “5010(e) diagnostic system [is a] farce” which provides courts with “inaccurate, erroneous and wholly misleading § 5010(e) reports and recommendations.” The Tillman court likewise concluded that the “procedural and substantive problems in the 5010(e) observation and study process at the Lorton Youth Center’s diagnostic unit . . . have been impeding the preparation of ‘the type of thorough, knowledgeable report which the Court requires to exercise its responsibilities under the [Youth Corrections Act].’ ” 374 F.Supp. at 217 (footnote omitted).

Among the defects that led the trial judges in Norcome and Tillman to reach such conclusions are the following:

A. Youth Center personnel “demonstrated a lack of understanding of the goals [and substance] of the Youth Corrections Act” and of the scope of statutory sentencing alternatives. For instance, the Classification and Parole Officer who evaluated Tillman testified that he did not know that the court must make a “no benefit” finding before an adult sentence can be imposed. Moreover, Tillman’s original § 5010(e) report recommends a sentence for which he was not even legally eligible.. The “lack of understanding” by Youth Center personnel may stem from the fact that there is no organized means for informing them of judicial decisions interpreting the FYCA.

B. Several procedures followed in the preparation of § 5010(e) studies create the risk of shielding the trial judge from dissenting views of diagnostic personnel. The individual reports of the clinical psychologists and Classification and Parole Officers who participate in § 5010(e) studies are typically prepared only after the Classification Committee meets and decides on its group recommendation. This creates the temptation to harmonize one’s individual report with the Committee’s group evaluation. Moreover, no transcript is taken at Classification Committee meetings nor are notes preserved from those meetings. Thus, it is extremely difficult to learn post hoc what views were exchanged at the meetings.

The trial judge’s ability to gain a full understanding of the views of all diagnostic personnel may be further compromised — as it was in Norcome — by the failure of the Classification Commiteee to submit potentially significant background reports with its recommendations. Both a Progress Report and a vocational report on Norcome were prepared; neither was submitted to the trial court.

Finally, the failure of each Classification Committee member to read each report that is issued over his name may also mask intra-Committee dissent. The clinical psychologist who examined Tillman testified that “it’s the general practice of the Classification and Parole officer to write [the Committee evaluation and recommendation] and it might be done and sent out before I see it.”

C. In Norcome, the § 5010(e) study contained false information on which the Classification Committee relied in making its adult sentencing recommendation. The § 5010(e) study indicated that the defendant had another charge pending against him. Administrators of the D.C. Board of Parole and the D.C. Board of Corrections relied in their adult sentencing recommendation on this pending charge. In fact, the pending charge had been dismissed six weeks before the § 5010(e) report had been prepared.

D. Youth Center personnel “do not follow any uniform criteria” for making sentencing recommendations. While one Youth Center staff member testified in the Norcome hearing that he did not weigh pending charges at all in making his recommendations, two others indicated that such charges are crucial to them in deciding on a recommendation. During the Tillman hearings the Administrator of Lorton Youth Center “I” candidly acknowledged that § 5010(e) recommendations “are being made without criteria on an ad hoc basis.” The Nor-come trial court explicitly found a “need for uniform standards and criteria to guide the corrections authorities in preparing the § 5010e reports”.

E. In the absence of uniform criteria, Youth Center personnel often use vague and conclusory terms to justify recommending subjects for adult sentences. Witnesses used terms such as “empty personality” without being able to explain what they meant. The commonly used § 5010(e) report conclusion that the defendant has a “need for a more structured environment” was termed by the Norcome trial court “a cliche that has no place in a meaningful statement of findings on whether or not the Defendant will derive benefit from participation in Youth Act programs.”

F. The Norcome court found that none of the psychological tests administered to § 5010(e) subjects “[have] been validated empirically with respect to measuring an individual’s capability to benefit from Youth Act programs.” No correlation has apparently been established between performance on any given diagnostic test and amenability to Youth Act treatment. The Norcome court found that the Classification Committee relied “on test results despite the inability of the Committee members to justify either in their reports or testimony the employment of [such] results as a basis for disqualifying a youth offender from Youth Act treatment.”

Y

In many cases, an FYCA sentence represents society’s last chance to reclaim a young offender from a life of crime and degradation and to redirect his energies toward a productive and law-abiding participation in society. The Act commits us to deal with the criminal offenses of young people in something other than an exclusively punitive manner. Moreover, the diagnostic and treatment facilities provided for by the Act present an invaluable opportunity to learn why these youngsters have gone astray, whether and how society has failed them and what corrective measures can be taken to avoid such failure in the future. It follows that the extraordinary significance of the FYCA necessitates that § 5010(e) studies — the informational basis upon which the court rests its critical sentencing decisions — be compiled with painstaking attention to accurate and full disclosure of all relevant considerations.

The records in Norcome and Tillman illustrate the dangers presented by a process in which individuals who are not sufficiently aware of the FYCA provisions use nonvalidated non-uniform criteria, vague and conclusory language, and inadequately verified information to make ad hoc sentencing recommendations. Transmitted to the court with what may be significantly incomplete sets of background reports, these recommendations may not represent the views of — or even have been read by — each person over whose name they appear. If we take the FYCA seriously — as we must — the sentencing process must be conducted in a manner far more in keeping with the criticál nature of its potential consequences.

LEVENTHAL, Circuit Judge

(concurring in the result):

While I agree that the case must be remanded for resentencing, I diverge from the approach of the majority in certain significant aspects.

I begin with the sentencing transcript. Before imposing sentence, the trial court made the following statements:

The recommendation of it [the evaluation report prepared according to 18 U.S.C. § 5010(e)] is that this Defendant be sentenced as an adult. The Youth Center recommended that the sentence would be of shorter [sic] duration as possible under the statute. The Board of Parole concurs with the recommendation of the Youth Center staff that the subject be sentenced under adult procedure, but does not recommend a short sentence. They find that the history of his activities is demonstrative of social disorganization and the reports indicate impulsive action and a sophisticated criminally oriented individual for whom the programs at the Youth Center are of dubious value and will not serve as there is an evident lack of amenability and motivation. (Sent. Tr. 2-3.)
The Court, finding that this Defendant is criminally oriented, sophisticated in the ways of the criminal world, and that he has for a long period of time engaged in criminal activities, that he has on prior occasions had the benefit of probation, that he has not responded to the attempts that have been made in the past; the Court further finds that the Youth Center, itself, has evaluated him and finds that he is not an appropriate person for the benefits of the Act and feels that he should not be sentenced under the terms of the Act; and the Court further finds that the Probation Office also finds that the Defendant is in need of a program more structured than that which is offered by the Youth Center and that the Board of Parole, likewise, concurs in these findings and recommends sentence as an adult. This Court is of the opinion that in view of the fact that the Youth Center, itself, has indicated that sentencing him as a youth would not be the proper procedure and that they would not be able to supply the needs that he has; and although the Court recognizes that mere incarceration may not be rehabilitative, nevertheless, the Court has no alternative under the statute. (Sent. Tr. 4-5.)

I think it most unlikely that the last sentence meant that the court deemed itself legally required to make a finding that the defendant would not benefit from Youth Corrections Act treatment. Indeed, I think it most probable that the trial judge meant that in view of the findings of the Lorton Youth Center the .case was overwhelmingly clear, that he had no realistic alternative. This reflected not an abdication of discretion, but an exercise of judicial discretion — to make a determination on the record.

We are dealing with a transcript of oral remarks, not a written opinion. For example, at one point the trial judge referred to the Youth Center’s recommendation “that the sentence would be of shorter duration as possible” while its exact words were “The recommendation that would best fit his needs is considered to be sentencing as an adult, with the shortest term possible for his charge.” But I cannot say that there is no doubt whatever as to the premise or intention of the trial judge. The doubt is slight, even minimal. Ordinarily, in such a case an appellate court may remand for clarification of findings of a District Court. In this area of Youth Corrections Act sentencing, however, the Supreme Court has laid it down in Dorszynski v. United States that “an express finding of no benefit must be made on the record”. In Dorszynski, the Supreme Court reversed a ruling of the appellate court that the district court had made the finding “by implication,” and held that a remand for resentencing is required when it is “unclear” whether the District Court’s wording “meant the court believed petitioner to be legally ineligible for treatment under the Act or whether, realizing he was eligible, nevertheless deliberately opted to sentence him as an adult.” Chief Justice Burger explained: “An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised.”

While the problem before us is not precisely the same as that created by the wording of the trial judge in Dorszynski, Dorszynskis stress on the importance of removing “all doubt” teaches me that even a scintilla of doubt occasions a remand for resentencing, not as time-consuming as a remand for retrial, yet looming large in significance.

I disagree with so much of the majority’s analysis as rests on the premise that the trial judge was the victim of misinformation. He was well aware that he had no authority to impose a sentence less than the one that he imposed, twenty years to life imprisonment. He was aware too of the legally futile quality of the classification board’s expression that the defendant be given the least adult sentence possible. But he was aware of the fact that its conclusion was not made dependent on a short sentence. And if he wanted to test whether the classification board . would have adhered to its conclusion even though it had to recognize explicitly that no adult sentence of less than twenty years was possible, he had the means to accomplish this.

Dorszynski teaches that, however short-sighted a district judge may be in the view of the appellate court, the court has neither the power to revise the sentence, nor the authority to insist that the district judge provide a statement of reasons. While Dorszynski does permit some appellate consideration, as pointed out in United States v. Allen, 166 U.S. App.D.C. -, -, 510 F.2d 652, 653 (1974), I think the fair implication of the Supreme Court’s opinion is to inhibit appellate review of district court judgments for the purpose of discerning shortcomings in underlying reasoning — and that is essentially what the majority opinion reflects.

Part IY of the court’s opinion contains material of much interest. I do not agree, however, that the doctrine of judicial notice can be stretched to pick up testimony in other cases, on the working of the Youth Center in its reports, as establishing factual material available to the appellate court to undercut an adult sentence for the youthful offender in this case. An appellate court may, on occasion, “in the interest of justice, and to provide sound disposition of precedential questions of law,” refer to factual items lodged by the parties, though not part of the record — “where there is no significant factual issue.” United States v. Kearney, 136 U.S.App.D.C. 328, 331, 420 F.2d 170, 173 (1969). The court sees fit to take judicial notice of the testimony presented in United States v. Norcome, 375 F.Supp. 270 (D.D.C.1974), and United States v. Tillman, 374 F.Supp. 215 (D.D.C.1974). I think this is impermissible where the material was not lodged, submitted or suggested by any party, and is indeed used to introduce a claim not made by a party; where we gave no opportunity to the Government to comment, contradict or qualify; and where we certainly have no basis for saying there is no significant factual issue. If an administrative agency were to use the concept of judicial notice in such a manner, this court would indignantly condemn the action as arbitrary. The French proverb puts it that in the realm of the blind, a one-eyed man can be king. But for an American judge true vision and the full perspective of the scene must abide the adversary process.

While judges may, using due procedure, attend to concerns sparked or identified by the testimony in Norcome and Tillman, our appellate court should, in my view, confine itself to ruling that, in complying with our mandate of resentencing, the District Judge is free to make the kind of inquiry that other district judges have found useful — without any intimation that it is an inquiry that may be required as a matter of law.

      . 22 D.C.Code § 2401.

      . The lesser offenses were second degree murder (22 D.C.Code § 2403), attempted robbery while armed (22 D.C.Code §§ 2902, 3202), and carrying a pistol without a license (22 D.C.Code § 3204).

      . Testimony at trial indicated that on July 6, 1970 William Darden, his eight year old daughter, a woman named Christine Tyson and several of her children were en route in Darden’s car from North Carolina to Darden’s home in New Haven, Connecticut. They drove into the District of Columbia sometime in the early morning hours and stopped at the Bar 20 Carryout on Kenilworth Avenue, N.E. Darden entered the carryout alone. As he bought some food, a Mr. Henson approached and asked him for a quarter. When Darden refused, Henson left the carryout. On leaving, Henson saw Dancy who was standing outside with some companions. Henson asked Dancy what he was doing in the area. Dancy replied that “he was trying to make some money.” Henson also heard Dancy say that “he went down to make some money and he was going to rob a man.” During this conversation, Darden left the carryout, went to his car, reentered the carryout and returned once again to his car. While sitting in his car, Darden was approached by Dancy who put a gun to his head. Darden got out of the car and exchanged words with Dancy. Dancy pushed Darden out of the way and backed to the street. Darden followed, whereupon Dancy shot him.

      . 18 U.S.C. §§ 5005-5026.

      . The trial judge noted that the commitment was “for a further study and analysis so far as psychological and psychiatric circumstances and whether or not the defendant can benefit from the provisions of the Youth Corrections Act in the event that should serve to be the answer.”

      . In that opinion we rejected Dancy’s challenges to his first degree murder conviction and his conviction for carrying a pistol without a license. We vacated his sentence on the second degree murder conviction on the basis of Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1233 n. 52 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). We also vacated his conviction for attempted robbery while armed since it was the underlying felony of his felony murder conviction. United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974).

      . The House of Representatives Judiciary Committee Report on the proposed Federal Youth Corrections Act indicated that “[p]ersons 16 to 23, inclusive [the age to be covered by the proposed Act] constitute 20 percent of our population above the age 15 (based on 1940 census figures) but they are responsible for 47.3 percent of our robberies; they constitute 55.4 percent of our apprehended burglars, and 63.1 percent of our automobile thieves.” H.R.Rep.No.2979, 81st Cong., 2d Sess., 2, U.S.Code Cong. Serv. News, 1950, p. 3984. More current statistics continue to show this disproportionality. In 1973, 22 percent of the arrests for violent crimes were of persons between the ages of 18 and 22 — the ages covered by the enacted FYCA — while that age bracket represents only 7% of the American population. Crime in the United States, 1973 FBI Uniform Crime Reports at 128-29.

      . “Sociologists and psychiatrists tell us that special causations which occur in the period between adolescence and manhood are, in a large measure, responsible for antisocial conduct trends manifested by persons in that age group.” H.R.Rep.No.2979, 81st Cong., 2d Sess., 2, U.S.Code Cong. Serv. 1950, p. 3984.

      . United States v. Waters, 141 U.S.App.D.C. 289, 291, 437 F.2d 722, 724 (1970).

      . 18 U.S.C. § 5011. “Treatment” is broadly defined in the statute as “corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders”. 18 U.S.C. § 5006(g). The treatment actually provided in Youth Act facilities such as the Lorton Youth Center includes educational and vocational training as well as some psychiatric and psychological counseling. In a letter to the District Court, the Director of the D.C. Department of Corrections explained that:
      The Youth Center is an institution designed to provide resources and opportunities which enable a youth to improve his academic standing, develop a marketable skill and to deal with the emotional problems which he presents.
      United States v. Ward,-337 F.Supp. 185, 193 (D.D.C.1971).

      . 18 U.S.C. § 5011. The FYCA also provides that when a youth offender sentenced under its provisions is discharged “before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside.” 18 U.S.C. § 5021. This promise of expungement is an important one. “The stigma of a criminal conviction may itself be a greater handicap in later life than an entire misspent youth.” Bazelon, Racism, Classism, and the Juvenile Process, 53 Judicature 373, 373 (1970).

      . As for duration of treatment, the Act provides two alternatives. If sentenced under 18 U.S.C. § 5010(b), a young offender must be unconditionally discharged no later than six years after the date of his conviction. 18 U.S.C. § 5017(c). If 18 U.S.C. § 5010(c) is invoked by the trial judge, the six year ceiling does not apply and unconditional discharge can occur any time up to “the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction.” 18 U.S.C. § 5017(d).

      . 18 U.S.C. § 5010(d).

      . The outline provided here of the § 5010(e) process is based largely on the written responses of the Assistant Director of the D.C. Department of- Corrections to questions posed by the trial court in United States v. Tillman, 374 F.Supp. 215 (D.D.C.) (responses filed Jan. 2, 1974). See also United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200, 1203 (1973).

      . E. g., United States v. Coefield, 155 U.S. App.D.C. 205, 476 F.2d 1152 (1973) (en banc); Williams v. United States, 476 F.2d 970 (3d Cir. 1973); Brooks v. United States, 497 F.2d 1059 (6th Cir. 1974); Cox v. United States, 473 F.2d 334 (4th Cir. 1973).

      . 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).

      . United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152, 1156 (1973) (en banc.)

      . Prior to Dorszynski this circuit had required that a statement of reasons accompany a trial judge’s finding of “no benefit.” United States v. Reed, 155 U.S.App.D.C. 198, 476 F.2d 1145, 1149-1150 (1973); United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152, 1157 (1973).

      . Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3050, 41 L.Ed.2d 855 (1974).

      . Id. at 3052. The four justices who joined in a separate opinion concurring in the result reached by the majority point to several policies other than the “facilitat[ion of] appellate supervision” that, according to them, would be served by a statement of reasons. They assert that such a statement might a) “contribute to rationalizing the sentencing process . [by] encouragfing] the judge to clarify and justify, in his own mind, the grounds for the sentence he chooses”; b) aid “correctional authorities in their handling of the prisoner after sentence”; c) “aid the defendant’s counsel to insure that the sentence is not premised on misinformation”; and d) “contribute to the offender’s rehabilitation by avoiding any feeling that his sentence was arbitrary.” Id. at 3058-3059 (Marshall, J., concurring in the result). See M. Frankel, Criminal Sentences, Law Without Order 39-49 (1972); R. Goldfarb & L. Singer, After Conviction 190-95 (1972).

      . This court has recently recognized that role in United States v. Allen, 166 U.S.App.D.C. -, 510 F.2d 651 at 652-653 (1974).

      . Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3047 n. 7, 41 L.Ed.2d 855 (1974).

      . 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

      . See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Latimer, 415 F.2d 1288 (6th Cir. 1969); see also Coleman v. United States, 123 U.S.App.D.C. 103, 357 F.2d 563 (1965) (en banc).

      . Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974) quoting from United States v. Hartford, 489 F.2d 652, 654 (5th Cir. 1974).

      . Id. (emphasis in original).

      . Id.

      . See United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968).

      . Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).

      . Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264, 266 (1969); see also United States v. Wiley, 267 F.2d 453 (7th Cir. 1959).

      . See Leach v. United States, 118 U.S.App.D.C. 197, 334 F.2d 945 (1964); see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences § 3.2(ii) (1968) (“The authority of the reviewing court with respect to the sentence should specifically extend to review of . the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.”).

      . United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968).

      . 18 U.S.C. § 5010(d) (emphasis added). Nor does the trial judge’s apparent surrender of his discretion to Youth Center authorities find any support in Dorszynski. “Literal compliance with the [FYCA’s ‘no benefit’ requirement] can be satisfied'by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.” Dorszynski v. United States, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974) (emphasis added).
      The “no alternative” language is not the only shortcoming in the sentencing proceeding. Nowhere in the sentencing transcript is there any explicit finding by the trial judge— as required by Dorszynski — that Dancy will not benefit from Youth Act treatment. In summarizing the § 5010(e) and presentence reports, it is true that the trial judge mentioned — without explicitly adopting — their negative conclusions that “Dancy is not an appropriate person for the benefits of the Act” and that “he is in need of a program more structured than that which is offered by the Youth Center.” The trial court itself found, inter alia, that the “[djefendant is criminally oriented and sophisticated in the ways of the world.” However, particularly in light of the trial judge’s subsequent “no alternative” language, none of these conclusions amount to an explicit finding by him that Dancy would “not derive benefit from treatment under the Act.”
      Our experience demonstrates the wisdom of the Supreme Court’s refusal to leave the “no benefit” finding to implication. In United States v. Van Buren, No. 72-1605 (D.C.Cir., Oct. 2, 1974), the trial judge relied on a host of negative findings in the defendant’s § 5010(e) report to deny sentencing under the FYCA. Nevertheless, we remanded because of the judge’s failure to make an explicit “no benefit” finding. On remand, the same trial judge — unable to make that finding — sentenced Van Burén to a Youth Act term.

      . 18 U.S.C. § 5010(e).

      . As discussed below, pages 14-21 infra, such inquiry has on occasion proven extremely valuable and revealing.
      While no § 5010(e) examination was administered to the appellant in Dorszynski, Justice Marshall’s separate opinion treats the problem of the weight to be given such examinations: “[T]he Act clearly intended that the ultimate sentencing decision remain with the trial judge. That decision should not pass by abdication to the correctional authorities who prepare the § 5010(e) study. Thus, where a trial judge secures a § 5010(e) report, he should adopt its reasons as his own only after assuring himself of the adequacy of the report and propriety of its recommendation.” Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3060, 41 L.Ed.2d 855 (1974).

      . “Notwithstanding any other provision of law, a person convicted of first degree murder shall be eligible for parole only after the expiration of twenty years from the date he commences to serve his sentence.” 22 D.C.Code § 2404.

      . The Committee’s literal recommendation of “as short a sentence that is legally possible within the framework of the statute” could of course be followed. However, the recommendation — particularly if based on Dancy’s rehabilitative potential — clearly implies an assumption by the Classification Committee that Dancy is statutorily eligible for a “short” sentence [i. e. one far less than twenty years].

      . See United States v. Tucker, 404 U.S. 443, 449 n. 8, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

      . 375 F.Supp. 270 (D.D.C.1974) (hearings conducted on Feb. 11-12, 1974 and March 21, 1974).

      . 374 F.Supp. 215 (D.D.C.1974) (hearings conducted on December 28, 1973 and January 2, 1974).

      . Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974).

      . Scott v. United States, 135 U.S.App.D.C. 377, 379, 419 F.2d 264, 266 (1969).

      . For our authority to notice the records of other litigation, see Gomez v. Wilson, 155 U.S.App.D.C. 242, 477 F.2d 411, 416 n. 28 (1973) (notice taken of citizens’ affidavits filed in other litigation alleging police harassment); Zahn v. Transamerica Corp., 162 F.2d 36, 48 n. 20 (3rd Cir. 1947) (notice taken of pleadings in state case to establish whether it was derivative action); Allen v. State Board of Education of North Carolina, 55 F.R.D. 350, 353 (M.D.N.C.1972), aff’d 473 F.2d 906 (4th Cir. 1973) (notice taken of decisions and findings of fact in other desegregation litigation to determine need for relief in the instant case). Our reference here to the records in Norcome and Tillman is not meant to establish as factual the testimony presented therein. See Opinion of Judge Leventhal, concurring in the result, page 790 infra. Rather, it is for the purpose of noting that the testimony and judicial findings in those cases appear to be sufficiently relevant to the issues in the present case to warrant inquiry on the remand we already require. For us to totally ignore Norcome and Tillman would be another act of that “blind court” that does not see what “all others can see and understand.” United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543. 545, 97 L.Ed. 770 (1953).

      . 375 F.Supp. at 275.

      . Indeed, Norcome and Tillman are not the first occasions on which District Judges have expressed dissatisfaction with the quality of the § 5010(e) reports compiled by the Lorton Youth Center. In United States v. Alsbrook, 336 F.Supp. 973 (D.D.C.1971), Judge Gesell noted that “the Court is not receiving the type of thorough, knowledgeable report which the Court requires to exercise its responsibilities under the Act.” Id. at 975.

      . 375 F.Supp. at 275. The court found that “[t]he record of the hearing reflects administrative practices in the diagnostic examination of youth offenders that border on extreme governmental dereliction of Congressionallymandated responsibilities under the Act.” Id. at 274.

      . United States v. Norcome, 375 F.Supp. 270, 277 (D.D.C.1974).

      . Tillman Hearing Transcript (hereinafter TT) 61; see also United States v. Norcome, 375 F.Supp. 270, 278 (D.D.C.1974).

      . The report recommended that Tillman be given an indeterminate sentence under 18 U.S.C. § 4208(a)(2). As a D.C.Code offender Tillman was statutorily ineligible to be sentenced under that provision. See Section 6 of Pub. L. 85-752, as amended by Pub. L. 86-70, § 17(b), June 25, 1959, 73 Stat. 144; Pub. L. 86-624, § 13(c), July 12, 1960, 74 Stat. 413.

      . The Norcome court found that Youth Center personnel demonstrated a “lack of training and expertise in the current status of the law” which contributed to “a maladministration of the Youth Act." 375 F.Supp. at 275. The Classification and Parole Officer on Nor-come’s Classification Committee testified as follows:
      Q: As a rule, are you made aware of opinions by the Court of Appeals regarding Youth Act cases?
      A: We do normally learn about them.
      Q: How do you learn about them?
      A: Normally through the papers.
      Q: Are you given copies of the opinions themselves?
      A: No.
      Q: Are you given any instruction as to the legal criteria for conducting § 5010(e) studies?
      A: No.
      Q: Do you have access to legal advice concerning the contents of a particular study?
      A: No.
      Q: Has anyone from the Office of the United States Attorney or the Corporation Counsel ever spoken to you about the legal criteria for § 5010(e) studies?
      A: No.
      Norcome Hearing Transcript (hereinafter NT) 59-60.

      . NT 162. See United States v. Norcome, 375 F.Supp. 270, 276 (D.D.C.1974). The testimony of the clinical psychologist who examined Tillman gives some idea of the procedure followed:
      Q: When do you first inform the chairman [of the Classification Committee] of the information that you have in regard to a particular inmate?
      A: We take turns. C&P officer might give his findings, and then I would give mine, and we would discuss it.
      Q: Would the initial input from yourself to the chairman be at this meeting?
      A: Yes, the first time.
      Q: Where the determination of sentencing would be made?
      A: That’s right.
      Q: You would not have forwarded on to him any reports?
      A: No. As I indicated, the reports are not written, usually, until after the meeting.
      Q: How about notes, would you have forwarded on to him any notes he could read ahead of time?
      A: No, usually not.
      Q: Did you follow the same pattern in the Tillman case as you would in any other cases?
      A: Yes, we did.
      TT 197-98.

      . NT 54-55, 234-35.

      . United States v. Norcome, 375 F.Supp. 270, 274 (D.D.C.1974), NT 171.

      . TT 193.

      . United States v. Norcome, 375 F.Supp. 270, 274, 282 (D.D.C.1974).

      . Id. at 281.

      . NT 407, 480-81.

      . TT 461-62.

      . 375 F.Supp. at 293.

      . See, e. g., NT 41-51, 68-72. The trial court in Norcome classified such terms as “empty personality”, “severity of the offense” and “bland personality” as cliches. 375 F.Supp. at 273.

      . Id. at 280.

      . Id. at 285; NT 622-24.

      . 375 F.Supp. at 294.

      . In Haziel v. United States, 131 U.S.App. D.C. 298, 404 F.2d 1275 (1968), this court noted the importance of “the divide between the Juvenile Court with its promise of non-punitive rehabilitation and the harsher world of the District Court.” Id. at 1278. As seen here, the “divide” between FYCA and adult sentencing may be just as significant.

      . It may be said that our emphasis on the need for close examination of § 5010(e) studies will lead trial judges to avoid the burden of such scrutiny by simply refusing to order the preparation of any more studies. We reject the notion that the trial bench will so discharge its grave responsibilities. What is called for is not the abandonment of § 5010(e) reports but rather the elimination of their defects and the development of a § 5010(e) process of the highest quality. Careful scrutiny by trial judges is critical to the achievement of these goals.

      . 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).

      . Id. at 3044.

      . Id. at 3053.

      . See Public Service Commission of New York v. FPC (Texas Gulf Coast Area Natural Gas Rate Cases), 159 U.S.App.D.C. 172, 198-200, 487 F.2d 1043, 1069-1071 (1973), vacated and remanded, 417 U.S. 964, 94 S.Ct. 3167, 41 L.Ed.2d 1136 (1974).


author: PER CURIAM:

text:
    UNITED STATES of America v. Tyrone I. MARSHALL, Appellant.
    No. 74-1495.
    United States Court of Appeals, District of Columbia Circuit.
    March 28, 1975.

      On Appellant’s Pro Se Motion for Appointment of Counsel (D.C. Criminal 267-73).
    Tyrone I. Marshall, pro se, was on the motion for appellant.
    Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.
   PER CURIAM:

Tyrone Marshall, his brother John, and Derek Holloway were all charged with assault with intent to kill while armed, armed robbery, robbery and assault and attempted murder of a Member of Congress, Senator John Stennis. Holloway was granted immunity, and John Marshall pleaded guilty. Tyrone Marshall, after four days of trial, entered an Alford plea to the full indictment, stating that while he had not committed the offenses charged, he recognized that the strength of the Government’s case thus far presented minimized his chances of acquittal. This plea was not negotiated, and in fact was entered in mid-trial over the Government’s strenuous objections. Mr. Marshall was repeatedly advised of his rights and exhaustively counselled by the judge to insure that he was aware of the consequences of his plea. At sentencing, Judge Waddy declined to invoke the Youth Corrections Act and sentenced Marshall to several concurrent adult terms of 10-30 years.

The only potential issues for appeal are whether the trial judge committed reversible error by refusing to allow Marshall subsequently to withdraw his guilty plea and by declining to sentence him as a youth offender. Since in the context of this case both issues are frivolous, we deny the motion for appointment of counsel and sua sponte dismiss the appeal.

The guilty plea. Marshall rested his motion to withdraw his guilty plea on two grounds. First, he alleged that he had been led to believe that no defendant would be granted immunity in exchange for his testimony and that the Government, by granting Derek Holloway such immunity denied him due process. But Marshall was not thus misled into pleading guilty since he was fully aware of the Holloway arrangement at the time the plea was entered.

Marshall further claimed that robbery charges pending in Superior Court stemming from an offense occurring a few minutes after the Stennis shooting were to be dropped in exchange for his plea. The evidence of the record is that there were no negotiations preceding the plea and no promises inducing it.

In Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957), we stated that “[l]eave to withdraw a guilty plea prior to sentencing should be freely allowed.” That general statement was addressed to a factual situation where the defendant at arraignment, prior to trial, had been allowed to enter an uncounselled guilty plea to several felonies. Later when counsel was appointed prior to sentencing it developed there were some indications that defendant lacked mental capacity, but the trial judge nevertheless proceeded to impose sentence. The court had also limited the role of counsel as an advocate, placed on the defendant the burden of proving innocence or insanity as grounds for withdrawal of his plea, and misled counsel as to appellant’s right to have the sentence set aside at a later date. Obviously, a case such as we have here where a guilty plea was voluntarily entered in the closing stages of a trial, after strong evidence of guilt had been introduced, by a competently counselled defendant, stands on a different footing than Poole. Because the grounds on which Marshall bases his motion to withdraw his plea are wholly insubstantial and because his plea was voluntary when made, we find that the trial judge’s refusal to permit withdrawal of the plea at the eleventh hour was not improper.

Sentencing. While there is some ambiguity in the statement made by the District Court at sentencing, taken as a whole, it complies with the requirements of Dorszynski. Hence, the decision to impose an adult sentence does not raise a non-frivolous issue for appeal.

We accordingly deny the motion for appointment of counsel and dismiss the appeal.

Order accordingly.

      . Senator Stennis was robbed and shot twice in front of his home on Cumberland Street, N. W. around 7 P.M. on the evening of January 29, 1973 by two youths.

      . Immunity was granted under 18 U.S.C. §§ 6002, 6003. Holloway proved a recalcitrant witness, preferring incarceration to testimony against his confederates. His commitment was cut short by Marshall’s decision to plead in mid-trial, thus obviating the necessity for Holloway’s testimony.

      . Jury selection consumed September 24-26, September 28 and October 1, 1973, when the jury was sworn. The Government presented its case on October 2-5. On October 8, 1973, Marshall withdrew his plea of not guilty and entered a plea to the full indictment.

      . North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . In the four days of trial, the Government produced more than twenty-five witnesses. At the District Court’s request it made a proffer of the remainder of its case. While the victim made no identification, circumstantial evidence of Marshall’s involvement was strong. Marshall stated to the court, “[Y]ou know, [they] got too much evidence against me” (Tr. 802).

      . The court asked the Government to make a proffer (Tr. 793-801). Then, he thoroughly examined the defendant (Tr. 788-93, 801-10), heard from his counsel (Tr. 780-84, 806-08), and finally accepted the plea (Tr. 810).

      . Judge Waddy had committed Marshall to ' Petersburg on December 14, 1973, for the 60-day evaluation period contemplated by 18 U.S.C. § 5010(e). There is evidence in the record that Marshall learned prior to his scheduled sentencing date on March 15, 1974, that the report would be unfavorable to a Youth Act sentence. Hence, on sentencing day, Marshall through counsel moved to withdraw the guilty plea. The motion was taken under advisement and denied on the continued sentencing date of March 29, 1974. (See March 15, 1974, Transcript at 2-3 in which Marshall’s attorney expresses his surprise at the decision to withdraw.)

      . For the court to appoint appellate counsel, the litigant must raise a non-frivolous issue. See Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958); United States v. McElya, 142 U.S.App.D.C. 38, 439 F.2d 548 (1970); cf. 18 U.S.C. § 1915 (1970).

      . Furthermore, differing treatment for co-defendants is a matter of prosecutorial discretion not reviewable in these circumstances by the Court of Appeals. Newman v. United States, 127 U.S.App.D.C. 263, 264, 382 F.2d 479, 480 (1967).

      . Marshall’s motion to withdraw his guilty plea was silent as to his having learned prior to sentencing that his § 5010(e) report recommended an adult rather than a Youth Act term. See note 7, supra. However, mention of this fact would have provided no ground for granting his motion to withdraw. The mere fact that a defendant is disappointed with an unfavorable presentence recommendation is not a valid justification for setting aside a guilty plea. High v. United States, 110 U.S.App.D.C. 25, 29, 288 F.2d 427, 431, cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961); United States v. Needles, 472 F.2d 652, 654 (2d Cir. 1973); Sherman v. United States, 383 F.2d 837, 840 (9th Cir. 1967). As the Supreme Court has stated in another context:
      A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.
      Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970); see also United States v. Lombardozzi, 436 F.2d 878 (2d Cir. 1971).
      Although Rule 32(d) of the Federal Rules of Criminal Procedure governs motions to withdraw guilty pleas, this Rule does not specifically set forth an exact standard to be invoked in determining whether the court should permit withdrawal of a plea prior to sentencing. However, the standard which has developed is that courts will permit such withdrawal if for any reason it seems “fair and just.” See Gearhart v. United States, 106 U.S.App.D.C. 270, 273, 272 F.2d 499, 502 (1959), quoting Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). There is no absolute right to withdraw a guilty plea. See United States v. Joslin, 140 U.S.App.D.C. 252, 257, 434 F.2d 526, 531 (1970); High v. United States, 110 U.S.App.D.C. 25, 29, 288 F.2d 427, 431, cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961). As stated by this court in Everett v. United States, 119 U.S.App.D.C. 60, 64, 336 F.2d 979, 983 (1964):
      Overwhelming authority holds, as has this court, that withdrawal of a guilty plea before sentencing is not an absolute right but a decision within the sound discretion of the trial court which will be reversed by an appellate court only for an abuse of that discretion.

      . The court stated that both the presentence report from the Probation Office and the § 5010(e) study recommended adult treatment for Marshall. The court noted that the Probation Officer listed five factors dictating this result — Marshall’s lack of remorse, his prior history of assaultive behavior, his apparent lack of response to juvenile treatment, the short time between his last institutional release and the commission of this offense, and the seriousness of the offense (the unprovoked shooting of a 71-year-old man). The court then discussed the § 5010(e) study which recommended adult treatment because Marshall’s previous exposure to correctional treatment had not modified his antisocial tendencies, because release was incompatible with the welfare of society and because he exhibited no desire to change. The court then concluded:
      This court finds based upon the recommendations of both the probation officer and the report of the Youth Center in response to the 5010(e) sentence that the Defendant will not benefit from a sentence under the Youth Act for treatment as a youth offender and the Court adopts the findings and recommendations of the Probation Office and of the Youth Center and makes the finding which I have now indicated, that he will not receive significant benefit by treatment as a youth offender.
      Sentencing Tr. 40-41 (emphasis added).

      . Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). After examining the legislative history of the Federal Youth Corrections Act in light of the traditional discretion of the sentencing judge, the Court held that “while an express finding of no benefit must be made on the record, the Act does not require that it be accompanied by supporting reasons.” Id. Here there is both an explicit finding and supporting reasons. The problem is that the explicit finding in the first sentence is watered down by the later, somewhat more equivocal no benefit statement which, standing alone, might not satisfy Dorszynski. But a fair reading of the sentencing statement as a whole clearly discloses that Dorszynski was complied with and that the sentencing judge considered the YCA and emphatically rejected it as non-beneficial to Marshall. 418 U.S. at 443, 94 S.Ct. 3042, 41 L.Ed.2d 855.