author: NICHOLS, Judge: PER CURIAM:

text:
    Haywood J. BULLOCK et al., Appellants, v. L. Quincy MUMFORD, Individually and as the Librarian of Congress, et al., Appellees.
    No. 71-2058.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 25, 1974.
    Decided Oct. 21, 1974.
    Rehearing Denied Nov. 15, 1974.
    Rehearing and Rehearing En Banc Denied Jan. 8, 1975.

      Michael D. Hausfeld, Washington, D. C., with whom Jerry S. Cohen and Herbert E. Milstein, Washington, D. C., were on the brief, for appellants.
    Anthony J. Steinmeyer, Atty., Dept, of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, Harold H. Titus, Jr., U. S, Atty., at the time the brief was filed, and Morton Hollander, Atty., Dept, of Justice, were on the brief for appellees.
    Before LEVENTHAL and ROBB, Circuit Judges, and NICHOLS, Judge, United States Court of Claims.

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

   NICHOLS, Judge:

The appellants are former “deck attendants” once employed by the Library of Congress, Washington, D. C., and separated from such employment after protest demonstrations by them and others in the Library reading rooms, during their working hours, continuing over several days, and refusal by them to return to duty when warned to do so. They sued in the United States District Court, seeking reinstatement and damages. Defendants are the Librarian of Congress and certain of his subordinates. The trial court, after consideration of affidavits by both sides, denied a preliminary injunction. It found that plaintiffs’ behavior had been disruptive and their work stoppage unlawful. This court affirmed in unreported orders. The trial court then dismissed the complaint by order, without further proceedings, determining that it lacked jurisdiction in that certain plaintiffs had failed to exhaust administrative remedies available to them, and also that plainr tiffs generally had failed to state a claim upon which relief could be granted. We affirm on the latter ground.

Jurisdictional issues and that of consent to be sued are not raised and could.not be in light of National Association of Government Employees v. White, 135 U.S.App.D.C. 290, 418 F.2d 1126 (1969).

Plaintiffs, who were black, had long believed that they were victims of racial discrimination. They were dissatisfied with the Library’s progress in correcting their problem. Just what they did is disputed in the affidavits. In view of the ultimate disposition below, we discard the findings on the preliminary injunction and assume for our purposes the truth of the version most favorable to appellants, i. e., appellants’ own. According to their complaint, they

* * * attempted to make known their grievances by staging a sit-in in the Library’s main reading room. On June 23 and June 24 [1971], plaintiffs sat and stood in the main reading room quietly, “as monuments of protest” * * *

They were summarily suspended on June 24, until June 28, and then summarily separated.

The affidavit of the name plaintiff, Mr. Bullock, supplies added details. It is clear from it the demonstration was on working time and that the demonstrators were repeatedly told to return to work or be “put on AWOL”. There is no suggestion the authorities at any time condoned their behavior. Near the end of the 24th a body of policemen read an ordinance and gave them ten minutes to vacate, however, the plaintiff group remained in their places until quitting time. The demonstration resumed on the 25th despite the suspension. They resumed the same actions on Monday, the 28th, and received their separation notices that day, except for four non-plaintiffs who went back to work.

That the demonstration was not always silent is clear from Mr. Bullock. On the 23rd they had a shouting altercation with Library of Congress Guards. On the 24th, in another reading room (the main one apparently being closed) they were addressed by the administrative assistants of three Congressmen. That same day one of their female members was arrested for carrying a sign (cf. 2 U.S.C. § 167b), “the crowd became angry and pushing developed. It quickly subsided.”

The official reasons for the separations stressed disruptive behavior and an unlawful work stoppage.

The case is unusual in that the plaintiffs’ counsel concedes, indeed, avows, that the Library, which is part of the Legislative branch, is governed by no relevant statute or regulation. It has adopted certain regulations on grievance procedures and adverse actions, but these he puts aside as not relevant except as to an omission therefrom. He relies entirely on asserted breaches of the First and Fifth Amendments to the United States Constitution and if he ever had a foundation for claiming the firings were illegal, otherwise based, he has waived it now.

The due process argument (Fifth Amendment) relies on Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), to show that the firing procedure was constitutionally defective in not providing for a hearing in advance of separation. This argument could be urged with considerable force when the briefs were written, but Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), knocks it in the head. Taking all the opinions in that case together, we conclude that a procedure to separate Government employees could possibly be constitutionally defective on a number of grounds, but absence of a hearing in advance of separation for cause is not such a defect standing alone, in and of itself. The Library has sua sponte adopted regulations on grievances and appeals and on disciplinary actions, including separation. No doubt they bind the Library so that a failure to follow them would make a separation unlawful. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L Ed.2d 1403 (1957). One plaintiff, Miss Williams, has obtained a hearing under this procedure. The Appeal Board report is largely favorable to her, criticizing Library measures and urging more lenient treatment of her. The Librarian, though rejecting some of the criticisms, is willing to consider re-employing her. Plaintiff Mr. John A. Ross has also had an Appeal Board proceeding with results favorable to him. Other plaintiffs have not followed the same route. Several plaintiffs, who were temporary employees, have no appeal rights. We are not required to scrutinize the procedures to search for due process defects in the regulations, or failures to follow them, not specifically pointed out.

The other contention appellants urge is that the Library has, by firing them, chilled their First Amendment freedom of speech and association. Their difficulty is in the first place that Amendment does not protect behavior made unlawful by legitimate legislation or regulation, enacted for purposes unrelated to the suppression of free expression. United States v. O’Brien, 391 ^U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). The Library said from the outset, and still says, the demonstration was a strike such as is outlawed for all Government employees by 5 U.S.C. § 7311(3). In United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (3 judge court, Dist.Ct.D.C.), aff’d, 404 U. S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971), this legislation was held not to infringe on First Amendment freedoms of United States Government employees. On oral argument appellants urged without much conviction and for the first time that this statute did not apply to Congressional employees. There is no reason suggested why Congress should regard a strike by its own employees as more tolerable than one in the Executive branch. Congress, too, is part of Government. (Further, 5 U.S.C. § 2101(1) includes Library of Congress employees within “civil service” for purposes of Title 5, U.S.Code. By § 2105(a) a Congressional aide is an “employee”.) The reasoning of the panel majority was that the right to strike did not exist at common law and had to be granted by statute to exist, and hence it could not be a constitutional right. This reasoning would be dispositive of the instant case apart from the statute; however, we note that Circuit Judge Skelly Wright, sitting as a member of the panel, did not join in it. He agreed, however, that Congress could prohibit Government employees fi'om striking.

In the second place, the Library, as already noted, considered that the behavior of the plaintiffs was “disruptive”. The court below so found on the application for a preliminary injunction, but with the support of affidavits from management sources we do not here consider. However, on consideration of the complaint and appellants’ affidavits alone, we think it would have required a powerful imagination indeed, to suppose, antecedently, that it would be possible to stage a sit-down strike in the main reading room of a public library, without disrupting the study and meditation intended to be the principal activity carried on in such places. If such an idea was ever entertained, the events described in the Bullock affidavit should have produced speedy disillusionment. If management reasonably believed the appellants’ acts were disruptive, it had a right to order them to vacate the main reading room, and penalize them for refusing to do so, notwithstanding the First Amendment.

We think the extent of First Amendment freedoms in a library environment is closely analogous to their exercise in a school. In Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) the Supreme Court held that wearing of black armbands in school to protest the Vietnam war was protected freedom of speech, but on the assumption that no disruption of educational activities was involved. Mr. Justice Fortas neatly drives the distinction home at p. 505, 89 S.Ct. 733, by approving reference to companion cases in the Fifth Circuit, Burnside v. Byars, 363 F. 2d 744 (1966), and Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (1966), both decided by the same panel the same day. On First Amendment grounds, in the absence of disruption, it enjoined a school board from prohibiting the wearing of SNCC buttons, but permitted such a prohibition by another board where disruption was shown. See discussion of these cases in Butts v. Dallas Independent School District, 436 F.2d 728 (5th Cir. 1971).

Thus the dismissal of the complaint is sustained without reaching the issue of exhaustion of remedies. This is more complex than the substantive issues because there were three classes of employees: temporary employees expressly denied the right to appeal their dismissal under the relevant Library regulations, tenured employees who had such a right and did not exercise it, and Mr. Ross and Miss Williams who did appeal, as above stated. The existence of the temporary category would preclude a complete disposition of the case on the exhaustion ground alone.

The plaintiffs also endeavored to show that they were victims of racial discrimination in various conditions of their employment prior to the demonstration. We think that, however valid the charge may be, it does not excuse illegal and disruptive behavior. In 1971 neither the courts, Congress, nor the Executive branch were indifferent to the legitimate discrimination complaints of black employees. The Library grievance appeals procedure was expressly declared to be available for complaints as to discrimination with respect to “race, color, religion * * * ” etc. Though they voiced many informal complaints to their supervisor, the appellants do not seem to have made any use of this procedure. On the contrary, during the sit-down, the Library’s Fair Employment Officers themselves came forward, sua sponte, to try to get the appellants to return to lawful courses, and to no avail, according to Mr. Bullock. The ill advised self-help procedure the appellants resorted to puts them out of court with their present case. One reason for having an orderly forum for discrimination complaints is of course to remove any necessity for disruptive demonstrations.

Affirmed.

On Appellants’ Petition for Rehearing and/or Suggestion for Rehearing En Banc

PER CURIAM:

Appellants have filed a petition for rehearing, alleging new grounds for reversal, not previously placed before this court. We pointed out in the opinion that with respect to the Fifth Amendment, appellant employees argued simply and solely that due process required a hearing in advance of their separation. Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L.Ed.2d 15 (1974), came down after the briefing was completed, but on subsequent oral argument appellants did not expand or refine their reasoning to avoid its impact. We said:

We are not required to scrutinize the procedures to search for due process defects in the regulations, or failures to follow them, not specifically pointed out.

Assertion of due process defects not dealt with in the opinion now comes too late, does not require our present consideration, and still less did it require anticipatory consideration in the opinion as filed. The precedential effect of the decision will be thus restricted. It is in no way to be taken as holding that the Library of Congress termination and post-termination adverse action and grievance procedures have been examined and are in all respects proof against due process attack.

The petition for rehearing is denied.

Statement of BAZELON, Chief Judge, as to why he voted to deny rehearing en banc:

I vote to deny rehearing en banc because I think the separation procedures as challenged in this action should be sustained under the reasoning of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The non-probationary employees were given a hearing after their termination and there is apparently no serious challenge to these hearing procedures with one exception to be discussed in a moment. The clear import of Arnett and the recent ease of Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) is that there is no right to pre-termination constitutional protection. I think this principle is a more than significant erosion of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and, indeed, of Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), but I feel these quite recent Supreme Court opinions leave no alternative. The probationers have no procedural due process rights at all except to the extent any are created by the agency’s own regulations. Despite these views, I am baffled by the statement that Arnett “knocks [Bullock’s argument] in the head.” The concurring opinion of Justice Powell in which Justice Blackmun joined clearly indicates that procedural claims by federal employees do have constitutional overtones which must be balanced against a government interest in efficiency. I think the panel opinion could be more sensitive to the dictates of this balancing task but do not think the holding forecloses further inquiry and balancing in later cases with different factual situations.

The one procedural objection raised by appellants which requires some comment is the claim that the Library of Congress post-termination hearing procedure was constitutionally defective and that, therefore, a pretermination hearing is required. The constitutional defect alleged is that the Librarian is not an impartial decision-maker, since he both participated in the original decision to summarily separate appellants and is the final authority in the post-termination hearing process. I have no doubt that a constitutionally acceptable hearing process must include an impartial decision-maker. Cf. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But appellants’ argument is slightly different: they state that the lack of impartiality, so it is alleged, of the Librarian not only renders the post-termination hearing defective but therefore renders defective the failure to provide a pre-termination hearing. Without particular allegations of bias and in light of the proprietary nature of the Library of Congress, I am unwilling to accept this argument as a sufficient distinction of the constitutional balance struck by Justice Powell and Justice Blackmun in Arnett since Arnett itself involved a claim that the decision-maker was not impartial. The constitutionality of the Library’s post-termination hearing procedures must be considered on their own ground and that consideration cannot be effected until the post-termination proceedings are complete, which they are not. The panel opinion does not, by my reading, intimate any opinion on the merits of a possible claim that the post-termination hearing procedures are inconsistent with the due process clause of the Fifth Amendment.

As to the First Amendment claims of both the probationers and the tenured employees, I think that their actions were conduct properly proscribed and therefore their dismissal is consistent with the First Amendment. However, I am concerned with the panel’s rather sweeping language which purports to find, on the basis of affidavits alone, with no fact-finding process, that the appellant’s activity was both constitutionally disruptive in terms of symbolic speech precedent and also a strike within the meaning of 5 U.S.C. § 7311(3) (1970). Recent cases in this Court dealing with First Amendment activity by federal employees have evidenced a concern that any adjudication be based on a complete record so that governmental and individual interests may be properly balanced. I think this precedent should create a similar sensitivity in “speech plus” cases such as the case before us here. I do not think the panel opinion here forecloses this approach. The facts of this case prevent it from being a precedent on disruptive symbolic speech.

      . See Ring v. Schlesinger, No. 72-3568, 164 U.S.App.D.C. 19, at 22-27, 502 F.2d 479, at 482-487 (1974).

      . Compare Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

      . Cf. the analysis of Judge Tamm’s seminal opinion in Cinderella Career & Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 425 F.2d 583, 589-592 (3970).

      . See Waters v. Peterson, 161 U.S.App.D.C. 265, 495 F.2d 91 (1973).

      . See Tygrett v. Washington, No. 72-1876 (D.C.Cir. Oct. 23, 1974) ; Ring v. Schlesinger, No. 72-1568, 164 U.S.App.D.C. 19, 502 F.2d 479 (1974) ; Waters v. Peterson, 161 U.S.App.D.C. 265, 495 F.2d 91 (1973).


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge: LEVENTHAL, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America v. Albert COX, a/k/a Albert C. Smith.
    No. 73-1571.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 5, 1974.
    Decided Dec. 18, 1974.

      Melvin Richter, Washington, D. C. (appointed by this Court), for appellant.
    James M. Hanny, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief for appellee. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed and James F. McMullin, Asst. U. S. Atty., also entered appearances for appellee.
    Before FAHY, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

       Judge Fahy did not participate in the decision of this case.

   LEVENTHAL, Circuit Judge:

Oh this appeal from a conviction of murder in the second degree, appellant contends that the evidence is insufficient to sustain the verdict and that receipt in evidence of his statement to the police violates the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We reject these contentions, and we affirm.

I. SUFFICIENCY OF THE EVIDENCE

Appellant was convicted of the murder by shooting of Joseph Jackson, who was found dead on the evening of February 17, 1972, in appellant’s apartment. According to the testimony of William E. Wilkins, various persons had gathered in the apartment in the course of that day. Wilkins was standing by the door watching Jackson and another man playing checkers when he heard appellant shout, “I mean everybody.” Turning, Wilkins saw a gun in appellant’s hand. He heard three shots fired and was hit by two of them. Appellant was subsequently arrested, as a result of Wilkins’ identification, on a charge of assault with a deadly weapon.

While appellant was in the custody of the police Jackson’s body was found lying on the floor of appellant’s living room. He had suffered massive internal hemorrhaging due to a gunshot wound in the abdomen. The Deputy Medical Examiner for the District of Columbia testified that the time between Jackson’s injury and his death was two to three hours and that the gun had not been fired at close range.

In a statement taken by homicide officers at police headquarters on the night of the incident, appellant said that he had been carrying a gun because he feared a confrontation with a group of ten or eleven people who were drinking in the hall. He stated that they - attacked him in the hall as he was returning from tending the furnace, that someone took the gun from his hand, and that “the gun went off and shot somebody” in the course of the struggle to retrieve it.

Appellant urges that the evidence presented by the prosecution is insufficient to establish that he shot Wilkins or that Jackson was fatally injured at the time Wilkins was shot. We cannot say that there is no evidence upon which a reasonable mind might fairly conclude that appellant is guilty beyond a reasonable doubt. See United States v. Lumpkin, 145 U.S.App.D.C. 162, 168, 448 F.2d 1085, 1091 (1971). The Government’s evidence is largely circumstantial, but that is no bar to its sufficiency. United States v. Fench, 152 U.S.App. D.C. 325, 333, 470 F.2d 1234, 1242 (1972). Much of appellant’s challenge turns on the credibility of Wilkins, the Government’s chief witness. Appellant asserts Wilkins was too intoxicated at the time of the shooting and could not accurately perceive what occurred. The weight to be given to Wilkins’ testimony falls within the province of the jury and will not be reviewed on appeal. Orient Mid-East Lines, Inc. v. Cooperative for American Relief Everywhere, Inc., 133 U.S.App.D.C. 307, 310, 410 F.2d 1006, 1009 (1969).

Appellant also argues that the Government failed to establish a prima facie case of second-degree murder because it presented no evidence that appellant acted with malice aforethought and not in the heat of passion. Appellant is in error in supposing that “malice” requires the application of a subjective standard of intent to kill. Even in the absence of subjective intent to kill, “malice” may be determined by application of an objective standard, where conduct is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.

II. THE ADMISSIBILITY OF APPELLANT’S STATEMENTS MADE WHILE IN THE CUSTODY OF THE POLICE

Appellant challenges the receipt in evidence of his statements to the police on the night of the shooting, on the ground that he lacked the capacity at that time to make a knowing and intelligent waiver of his rights under Miranda v. Arizona, supra.

At 7:30 p. m., when appellant was first taken to the stationhouse, he was interviewed with regard to a charge of assault with a deadly weapon. At that time he was advised of his rights by Officer Pawlick, who read him the standard Form PD-47. Appellant signed the waiver on the form. In this interview appellant gave the police three .22 caliber bullets that he had in his coat pocket. An hour later, when the police became aware that a possible homicide was involved, appellant was again advised of his rights, this time by Sergeant Murray of the Homicide Unit, and he again signed the waiver on a PD-47 Form. At 9:30, in the Homicide Unit, appellant was advised of his rights for a third time, by Detective Hill, who gave him a PD-47 Form to read and sign before taking a statement.

First, appellant argues that, although he was given repeated warnings, he did not comprehend their significance because he had only a fifth-grade education. At a hearing on the admissibility of the statements the trial judge asked appellant to read the PD-47 Form aloud and to discuss his understanding of its contents. On this basis the court reasonably concluded that appellant was capable of understanding the warnings and had in fact understood them.

Appellant also urges that he lacked the capacity to make a knowing waiver because he was intoxicated at the time of the interrogation. The record supports the trial judge’s finding that appellant’s statements were voluntary. The three police officers who interviewed appellant testified that, although appellant had been drinking, there was no indication that he was too intoxicated to understand the warnings. No testimony was offered by appellant in support of his assertion that he was too intoxicated to grasp the significance of his waiver.

Indeed, appellant repeatedly testified that he understood all the warnings read to him and that he knew what his rights were. (Tr. 218-22). He testified that he made his statements because he was “taught to tell the truth” to police officers. (Tr. 323). An avowed conscious desire to cooperate with the police is not the sort of compulsion that undermines voluntariness. Rather, it fully supports the conclusion that appellant’s waiver was knowing and intelligent. We see no justification for reversing the ruling of the trial judge.

We discern no prejudicial error and affirm the judgment of the District Court.

Affirmed.

LEVENTHAL, Circuit Judge

(concurring):

In the course of reviewing the record for the purpose of preparing the court’s opinion, I came to be concerned with a problem in the trial judge’s instructions to the jury on recklessness as a basis for culpability under the criminal law of homicide. These instructions were not made the subject of any objection in the trial court, or complaint in this court, and we ultimately decided that the problem is not one that is either central to the facts of this case or warrants interjection by the appellate court under the rule contemplating reversal for plain and prejudicial error. But the judicial reflection I have provided, in the course of fulfilling my responsibility as a judge to determine whether there was plain error that would warrant reversal even in the absence of objection by counsel, may be helpful to other judges faced with this recurring problem, and hence I follow my practice of attaching to the opinion I have authored for the court, a separate, concurring opinion in which I speak only for myself.

As appears from the Dixon-Thomas-Dent line of cases, cited in footnote 1 of the court’s opinion, recklessness may be the basis for a determination of culpability for murder (malice) or involuntary manslaughter. The applicable doctrine may be summarized as follows:

Conduct that evinces unreasonableness or negligence but falls short of recklessness is- insufficient to support a verdict of either manslaughter or second-degree murder. A manslaughter verdict requires a showing of conduct that is reckless, that “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” A murder verdict is justified only when defendant’s conduct is so reckless as to establish “malice.” The term malice is frequently described in terms of “wanton disregard for human life,” but can be more precisely formulated as requiring an awareness of a serious risk of death or serious bodily injury. The distinction between involuntary manslaughter and murder lies in the quality of the defendant’s awareness of the risk. United States v. Dixon, supra, 135 U.S.App.D.C. at 406, 419 F.2d at 293; United States v. Grady, 157 U.S.App. D.C. 6, 8-9, 481 F.2d 1106, 1108-09 (1973).

The District Judge gave the instructions on the recklessness elements of criminal homicide that appear in the Bar Association’s compilation of instructions in the so-called “red book.” This led to the jury’s being instructed in the following terms:

Implied malice [which would support a verdict of second-degree murder] may be inferred from the circumstances of the killing, as, for example . when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life. (Tr. 325) -

Later, after lengthy and complex instructions on provocation and certain elements of manslaughter, they were told to find the defendant guilty of manslaughter if the' Government proves

that the defendant’s conduct amounted to a conscious disregard of a substantial and unjustifiable risk to the life of the deceased and a gross deviation from the standard of conduct that a reasonable person should have observed under the circumstances. Whether the conduct is reckless depends upon whether a reasonable person would have been aware or should have been aware of the extreme danger involved in his actions. (Tr. 328)

What concerns me is that such widely separated passages may not be sufficient to present the difference in offenses in terms meaningful to a jury of laymen. The judge referred to awareness of danger in giving the manslaughter instruction, whereas what was really needed was an instruction that drew the difference between manslaughter and murder in terms of the nature of defendant’s awareness of risk. Guidance to the jury would also have been heightened by an explicit statement that a finding of unreasonableness and negligence is not in itself enough to constitute the recklessness required for manslaughter.

To crystallize my reflections, and perhaps enhance their usefulness, I have put in the margin a suggested instruction for consideration as a concluding, or summarizing, instruction in cases involving the possibility of a verdict of criminal homicide based on defendant’s recklessness.

As this case went to the jury it turned, not on appellant’s state of mind, but on whether the Government had established that he had in fact shot Jackson without any legal justification. Since the instruction on state of mind was technically accurate as given and the problem is one of clarity and emphasis, and since the facts do not really turn on the state of mind issue, this is not a case for invoking the rule that permits reversal, even in the absence of objection, for error that is plain and prejudicial.

      . The pertinent doctrine was set forth in United States v. Dixon, 135 U.S.App.D.C. 401, 406 n. 8, 419 F.2d 288, 293 n. 8 (1969) (concurring opinion), and subsequently in Thomas v. United States, 136 U.S.App.D.C. 222, 419 F.2d 1203 (1969), and United States v. Dent, 155 U.S.App.D.C. 278, 477 F.2d 447 (1973).

      . In fact, appellant concedes on appeal that he was presumably not intoxicated at the time Detective Hill took his statement. (At Br. 34). Yet, at the trial court the question of the sufficiency of appellant’s waiver was raised only with regard to this statement. Appellant’s counsel expressly disavowed any objection to the statement in which appellant gave the bullets to Pawlick and Murray. (Tr. 162).

      . We need not consider the possibility that there may have been error in the instructions on recklessness as a basis for criminal responsibility for homicide. There was no objection, in either the trial court or this court, and hence there is no warrant for reversal unless the rigorous requirements of the “plain error” rule are met. Even assuming for discussion that there was error, there was no substantial prejudice.

      . See, e. g., United States v. Poole, 161 U.S. App.D.C. 289, 297, 495 F.2d 115, 123 (1974); United States v. Ammidown, 162 U.S.App. D.C. 28, 37, 497 F.2d 615, 625 (1973).

      . Instructions 4.23- and 4.26 of the red-bound Criminal Jury Instructions prepared by the Young Lawyer’s Section of the District of Columbia Bar Association.

      . Confusion rather than clarification is imparted by the passage in the manslaughter instructions referring to “a conscious disregard of a substantial and unjustifiable risk to the life of the deceased.” (Tr. 328). Such language belongs in the murder instructions.

      . In summary, the question of whether defendant is guilty of involuntary manslaughter, or second-degree murder, turns on whether his conduct constitutes recklessness, and if so, what kind.
      The fact that defendant’s conduct was a deviation from the standard of care that a reasonable person would observe in the same situation shows negligence, but if it does not go further and show recklessness, you must bring in a verdict of not guilty on all counts.
      You may conclude beyond a reasonable doubt that defendant’s conduct was not merely negligent, but also reckless, if it was a gross deviation from a reasonable standard of care and created a serious risk of death or serious bodily injury. In that case you may find defendant guilty of involuntary manslaughter or second-degree murder, depending on his awareness of the risk created by his conduct. If defendant was not aware of a serious risk of death or serious bodily injury, he may be found guilty of involuntary manslaughter but not of murder. If you find beyond a reasonable doubt that defendant was aware of a serious risk of death or serious bodily injury, you may find him guilty of second-degree murder, for in that case his conduct may be deemed to indicate an extreme and wanton disregard for human life.


author: BAZELON, Chief Judge:

text:
    James A. JOHNSON, Appellant, v. Luther ROBINSON.
    No. 74-1149.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 25, 1974.
    Decided Dec. 23, 1974.
    Robert P. Stranahan, Jr., Washington, D. C. (appointed by District Court), with whom Daniel D. Polsby, Washington, D. C., was on the brief, for appellant.
    Michael G. Scheininger, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Tobey W. Kaczensky and Oscar Altshuler, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and WILLIAM WAYNE JUSTICE, United States District Judge for the Eastern District of Texas.

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

   BAZELON, Chief Judge:

James Johnson was acquitted by reason of insanity of a charge of assault on December 1, 1961 in District of Columbia Municipal Court. Under procedures then in effect, he was thereupon committed to Saint Elizabeth’s Hospital. The offense for which Johnson was committed carried a maximum sentence of one year. Since December 1, 1961, Johnson has filed a total of nine petitions for a writ of habeas corpus to secure his release from Saint Elizabeth’s but is still as of this date incarcerated pursuant to the December 1, 1961 commitment order. At no time during the thirteen years of Johnson’s commitment has the government borne the burden of proving that Johnson’s mental condition falls within the intendment of the District of Columbia commitment statutes.

In his most recent petition for a writ of habeas corpus filed in federal District Court, Johnson argues that he should be released from confinement unless the government bears the burden of proving that his mental condition falls within the intendment of the relevant commitment statutes. In Bolton v. Harris, 130 U.S. App.D.C. 1, 11, 395 F.2d 642, 652 (1968) this Court held that any person acquitted by reason of insanity after the date of the decision is entitled to hearing prior to commitment to a mental hospital in which the government must prove by a preponderance of the evidence that the person should be committed. The decision to apply Bolton only prospectively created an anomalous situation in which an individual in Johnson’s situation who was committed under pre-Bolton procedures would never be entitled to a hearing at which the government bore the burden of proving that such an individual was in need of care while a post-Bolton defendant would be entitled to such a hearing prior to commitment. The serious equal protection questions raised by this anomaly were explored in Waite v. Jacobs, 154 U.S.App.D.C. 281, 475 F.2d 392 (1973). In that case, this Court strongly suggested that in order to avoid these serious equal protection questions, the government should be required to prove by a preponderance of the evidence that a pre-Bolton defendant such as Johnson was in need of care at a post-Bolton habeas corpus hearing, if the pre-Bolton defendant, as is the ease with Johnson, has been committed for a period longer than the maximum sentence for which he might have been committed. Johnson requests us to transform the constitutional suggestion of Waite v. Jacobs into a holding and to thereby order that he be released unless the government proves by a preponderance of the evidence that he is presently in need of care. On the first hearing of the case, the District Court agreed.

Upon appeal of the order entered after this hearing, the government for the first time challenged the jurisdiction of the District Court to consider Johnson’s habeas petition. This Court then remanded the case to the District Court after receiving a memorandum from the District Court stating that if such a remand were made, he would be disposed to grant the government’s motion. After a hearing on December 11, 1973, the District Court did in fact grant the government’s motion and dismissed Johnson’s petition. Johnson appeals.

The government’s argument is premised on 24 D.C.Code § 301(k)(7) (1973) added by the District of Columbia Court Reform and Criminal Procedure Act of 1970. This section provides that any person committed to a hospital for the mentally ill after being acquitted by reason of insanity under the provisions of 24 D.C.Code § 301(d) (1973), as was Johnson, must file a motion under § 301(k)(l) for his release. “[An] application for habeas corpus . . . shall not be entertained if it appears that the applicant has failed to apply for [§ 301(k)(l)] relief, . . . unless it also appears that the [§ 301(k)(l)] remedy ... is inadequate or ineffective to test the validity of his detention.” Johnson argues in reply that § 301(k)(l) is an inadequate remedy because § 301(k)(3) requires that he bear the burden of proof.

We first confront the task of defining the scope of the phrase “inadequate or ineffective to test the validity of his detention.” As noted in House Report on § 301, this language is copied from the parallel language in 28 U.S.C. § 2255 (1970), which requires that an individual wishing to attack his conviction and sentence must file a motion in the sentencing court and may not resort to habeas relief unless the motion to the sentencing court would be “inadequate or ineffective to test the validity of his detention.” However, § 301 does not contain one very important phrase contained in § 2255. Habeas is disallowed under § 2255 “if it appears that the applicant has failed to apply for [§ 2255] relief or that [the sentencing] court has denied him relief . . ..” The italicized phrase does not appear in § 301(k)(7).

The significance of this omission may be seen in a comparison between the “exhaustion”, requirement, if it may be so described, of § 2255 and the exhaustion required in the federal habeas corpus statute, 28 U.S.C. § 2254(b) (1970), and in federal habeas corpus case law. Courts construing the “exhaustion” requirement of § 2255 have almost uniformly held that only the most serious proceduv al difficulties will permit a habeas petition in lieu of a § 2255 motion. In particular, the courts have held that even a prior unsuccessful § 2255 motion on the same legal question sought to be presented in the habeas petition will not render § 2255 “inadequate or ineffective to test the legality” of the detention. This position seems based on the language quoted in the previous paragraph. On the other hand, the federal courts have uniformly held that an unsuccessful state appeal or state collateral proceeding on the issue sought to be presented in the federal habeas proceeding satisfies the exhaustion requirement and federal habeas will lie. Furthermore, the federal courts have held that a prior, authoritative state court decision rejecting the claim the federal habeas petitioner seeks to present obviates the need for exhaustion of state remedies. Finally, federal courts have adopted a much less stringent attitude toward the procedural deficiencies which permit a failure to exhaust state remedies.

It is thus a question of no small moment to the relationship' between the federal courts in the District of Columbia and the local courts established pursuant to the Court Reform and Criminal Procedure Act of 1970 whether § 301(k)(7) is interpreted in accordance with § 2255 precedent or § 2254(b) precedent. We do not think the bare statement in the House Report making reference to § 2255 necessarily resolves the issue. First, there is the substantial difference in language quoted on the previous page between § 2255 and § 301(k)(7). Second, the reference to habeas corpus in § 301(k)(7) may be only to habeas in the District of Columbia local courts and not to habeas in the federal courts. If this were the case, the § 2255 analogy would be apt to the extent a § 301 motion would foreclose a local habeas petition. Third, to permit the § 2255 analogy to control would arguably deprive residents of the District of Columbia of habeas in an Article III court seemingly in violation of established case law. This problem of interpretation is also present in 23 D.C.Code § 110(g) (1973) and is directly implicated in two pending appeals in this court.

We need not resolve this difficult question in order to dispose of this appeal. We may assume for purposes of decision that the § 2254(b) analogy should prevail and that Johnson will not be required to file a § 301 motion if it appears that the District of Columbia courts will not grant him the relief he requests. However, we cannot say that the District of Columbia courts will in fact so deny him relief. Johnson’s argument reduced to essentials is that § 301(k)(3) places the burden of proof on the applicant in all situations and, therefore, his claim is foreclosed. Implicit in this argument is the assertion that the District of Columbia courts will reject the argument presented in Waite v. Jacobs for altering that burden of proof in regard to defendants committed by reason of insanity prior to Bolton v. Harris. However, the mere possibility of failure in local courts is not sufficient to obviate the exhaustion requirement. The cases establish that the local courts must have an opportunity to consider the claim in order to fulfill the policies of the exhaustion requirement. Thus, Johnson must present his argument premised on Waite v. Jacobs to the Superior Court before he may file a habeas petition in this Court. Whether Johnson must appeal an adverse ruling of the Superior Court is a question to be resolved on the basis of exhaustion doctrine and we need not consider it now.

The length of Johnson’s incarceration coupled with the relative minor nature of the offense that precipitated it, all of which occurred in derogation of the suggestion of Waite v. Jacobs, might require us to dispense with the strict requirements of the futility doctrine if we thought it more probable than not that the Superior Court would deny Johnson’s request for relief. However, Johnson has presented us with a number of arguments which convince us that such a dispensation is not appropriate. Johnson notes that the burden of proof requirement of § 301(k)(3) is no more inflexible than the traditional burden of proof requirement in habeas corpus that this Court questioned in Waite v. Jacobs. In this regard, Johnson notes that the legislative history of § 301(k)(3) indicates that it was linked with the new requirement that a defendant must prove by a preponderance of the evidence in a criminal proceeding that he was criminally insane in order to win acquittal. The legislative reasoning apparently was that this requirement of affirmative proof of insanity satisfied the standards of Bolton v. Harris since no person would be acquitted on the basis of a reasonable doubt as to his sanity and then automatically committed. Thus the chain of events in Johnson’s case — acquittal because of a reasonable doubt about his sanity and thereupon an automatic commitment — is not authorized by the new statutory scheme. Johnson furthermore directs , our attention to the equal protection issues found to be substantial in Waite v. Jacobs and argues that no reason exists, against an ambiguous legislative history, why those issues could not be avoided through statutory construction. These arguments are far from frivolous and thus we can not argue that the Superior Court would more likely than not fail to be impressed by them. We, therefore, affirm the order of the District Court dismissing the petition for a writ of habeas corpus for lack of jurisdiction.

Affirmed.

DANAHER, Senior Circuit Judge, concurs in the result.

      . Johnson was committed under 24 D.C.Code § 301(d) (1967). However, in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), this Court held that § 301(d) must be construed in light of 21 D.C.Code §§ 541, 545 (1973). See United States v. Brown, 155 U.S. App.D.C. 402, 403, 478 F.2d 606, 607 (1973).

      . This preponderance of the evidence standard was reaffirmed in United States v. Brown, 155 U.S.App.D.C. 402, 478 F.2d 606 (1973). But cf. In re Ballay, 157 U.S.App.D.C. 59, 61, 482 F.2d 648, 650 n. 7 (1973); State v. Clemons, 110 Ariz. 79, 515 P.2d 324 (1973).

      . Johnson v. Robinson, Hab.Corp. No. 82-72 (D.D.C. June 11, 1973), at 3.

      . Johnson v. Robinson, No. 73-1878 (D.C.Cir. Nov. 14, 1973). This was pursuant to Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952).

      . Johnson v. Robinson, Hab.Corp. No. 82-72 (D.D.C. Dec. 11, 1973).

      . H.R.Rep.No.907, 91st Cong., 2d Sess. 73 (1970): “This statutory release procedure, patterned on 18 [sic] U.S.C. § 2255, would be a substitute for habeas corpus except where it was inadequate or ineffective.”

      . See Preiser v. Rodriguez, 411 U.S. 475, 491-493, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Picard v. Connor, 404 U.S. 270, 275-276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (Brennan, J.) and cases cited. After Preiser v. Rodriguez, supra, it does not appear possible for Johnson to maintain an action for violation of his constitutional rights against the officials at Saint Elizabeth’s and thereby avoid the exhaustion requirement on that basis, even if we were to treat his habeas petition in that manner. Cf. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). See also District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

      . See Boyden v. United States, 463 F.2d 229 (9th Cir. 1972), cert. denied, 410 U.S. 912, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973); Accardi v. Blackwell, 412 F.2d 911, 914 (5th Cir. 1969); Wood v. Blackwell, 402 F.2d 62 (5th Cir. 1968), cert. denied, 393 U.S. 1060, 89 S.Ct. 703, 21 L.Ed.2d 702 (1969); Litterio v. Parker, 369 F.2d 395 (3d Cir. 1966); Cain v. Markley, 347 F.2d 408 (7th Cir. 1965); Barkan v. United States, 341 F.2d 95 (10th Cir.), cert. denied, 381 U.S. 940, 85 S.Ct. 1773, 14 L.Ed.2d 703 (1965).

      . See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

      . See Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973); Layton v. Carson, 479 F.2d 1275 (5th Cir. 1973); Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973); Perry v. Blackledge, 453 F.2d 856 (4th Cir. 1971); Peters v. Kiff, 441 F.2d 370 (5th Cir. 1971), aff'd on this point, 407 U.S. 493, 494-195 n. 1, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Lucas v. Michigan, 420 F.2d 259, 261-262 (6th Cir. 1970); Reed v. Beto, 343 F.2d 723 (5th Cir. 1965), aff'd sub nom. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Cf. United States ex rel. Hughes v. McMann, 405 F.2d 773, 775-776 (2d Cir. 1968).

      . See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1098, 1100-01 (1970).

      . The Superior Court of the District of Columbia is not an Article III court, but is rather an Article I court. See Palmore v. United States, 411 U.S. 389, 397-04, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). The federal courts have acted to guarantee habeas in an Article III court for persons convicted in Article I courts. See Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Rivera Escute v. Delgado, 439 F.2d 891 (1st Cir. 1971); Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); cf. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). See also U.S.Constit., art. I, § 9, cl. 2; United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971).

      . Palmore v. Superior Court, No. 74 — 1832 (D.C.Cir. pending); Presley v. Swain, No. 73-1975 (D.C.Cir. pending).

      . See Daegele v. Crouse, 429 F.2d 503, 505 (10th Cir. 1970), cert. denied, 400 U.S. 1010, 91 S.Ct. 570, 27 L.Ed.2d 623 (1971); Lucas v. Michigan, 420 F.2d 259, 261 (6th Cir. 1970).

      . See cases cited notes 79-10 supra. See also Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). This Court has often recognized the policy inherent in the exhaustion requirement. See Tarlton v. Saxbe, 165 U.S.App.D.C. 293, at 304-305 n.34, 507 F.2d 1116, at 1127-1128 n.34 (D.C.Cir. Oct. 22, 1974); Sullivan v. Murphy, 156 U.S.App. D.C. 28, 52-54, 478 F.2d 938, 962-964, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); Williams v. Robinson, 139 U.S. App.D.C. 204, 432 F.2d 637 (1970). See also Brown v. Yeldell, 159 U.S.App.D.C. 339, 341, 487 F.2d 1210, 1212 (1973); Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969).

      . Cf. Dixon v. Jacobs, 138 U.S.App.D.C. 318, 323, 427 F.2d 589, 594 (1970). Compare Johnson’s case with Cross v. Harris, 135 U.S. App.D.C. 259, 418 F.2d 1095 (1969).

      . We are not convinced by the confident assertion in Rauh & Silbert, Criminal Law and Procedure: D.C. Court Reform and Criminal Procedure Act of 1970, 20 Amer.U.L.Rev. 252, 318 (1970) that the language of the statute prevents any inquiry into exceptions to the burden of proof requirement.

      . See 24 D.C.Code § 301(j) (1973). The constitutionality of this provision was upheld in United States v. (LaVance) 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). See the discussion in Rauh & Silbert, supra note 16, at 321. Whether this new scheme is constitutional under the standards of Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968) is not before this Court on this appeal. We do note that a statutory scheme which both places the burden of proof on the defendant to win acquittal at a criminal trial and to thereby prove the necessity of his own civil commitment may raise Self-Incrimination questions. One might also question whether there is any necessary relation between proof of legal insanity at a criminal trial and proof of dangerousness under the relevant commitment statutes. Cf. United States v. Alexander & Murdock, 152 U.S.App. D.C. 371, 378-383, 471 F.2d 923, 960-965 (1972) (Bazelon, C. J., concurring in part, dissenting in part).


author: MacKINNON, Circuit Judge:

text:
    UNITED STATES of America v. Horace E. LEE, Appellant (two cases).
    No. 72-1782.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 23, 1974.
    Decided Dec. 27, 1974.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1451.

      Ronald N. Cobert, Washington, D. C. (appointed by this court), for appellant.
    Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Barry W. Levine and Peter R. Reilly, Asst. U. S. Attys., were on the brief for appellee.
    Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
   MacKINNON, Circuit Judge:

Appellant Lee was found guilty of armed robbery, assault on a police officer while armed with a dangerous weapon, and assault with a dangerous weapon upon one Harry Loss, a clerk at the motel that was robbed. All offenses were committed on June 15, 1971. The principal issues argued on appeal question the admissibility of two items of evidence: First, a wallet belonging to one Wooley, the hold-up man in the robbery, which was found and seized in a warrantless search of appellant’s automobile. Second, evidence admitted on cross-examination that appellant had entered a plea of guilty to a violation of the narcotics laws on which a judgment had not yet been entered against him. As the Government now concedes, the conviction for assault with a dangerous weapon upon the motel clerk must be vacated because it is a lesser included offense of the armed robbery of the same person. We affirm, the remaining convictions.

I

Evidence at trial proved that appellant was a dealer in narcotics. Appellant’s alleged accomplice, one Wooley, was a veteran who had become addicted to narcotics while serving in Vietnam. He returned to the United States in April of 1971 and shortly thereafter began purchasing narcotics from appellant on a regular basis. He spent his entire savings of $3700, ran up a substantial debt to appellant and on June 14, 1971, asked appellant to sell him more narcotics on credit. Appellant refused to extend any further credit but suggested that Wooley could make some money by joining him in a robbery of a motel he had “lined up” with the motel attendant. Wooley was desperate for narcotics and agreed to the plan. Appellant than gave Wooley a gun and a small amount of heroin to ease his craving and drove him to the motel at about 2 A.M. on June 15, 1971. Before he entered the motel, Wooley, at appellant’s suggestion, left his wallet in the car to avoid losing it during the robbery. Appellant, who had a gun on his person, parked the car down the block and returned to a prearranged location in some bushes “in front of the motel” to “cover” Wooley’s “back” from the outside.

Wooley then entered the motel office, held up the attendant, Harry Loss, and fled with a bag of money. As he went out the front door, he almost collided with a police car which was pulling into the driveway. At that time he heard a shot, threw away his gun and ran. He crossed some bushes and passed appellant who was standing below a wall (all shown on Exhibit 3). Appellant told him to run in the street, but shortly thereafter Wooley fell on the pavement and was arrested by the officer who had pursued him from the motel. As Wooley fell, he dropped the bag of money which the police officer apparently did not notice. After Wooley had been taken back to the motel, a red and white late model Cadillac with Maryland license plates pulled out from behind a truck at the curb (about where appellant had parked his car), drove up the street, stopped where Wooley had dropped the money bag, removed something from the bag and then drove off. Upon returning to the patrol car, the officer discovered that the right front window had been shattered. Wooley's gun was later recovered and tests showed it had not been fired. Appellant’s gun was never found and the spent bullet could not be located in the patrol car.

After his arrest Wooley told the police the nickname of his accomplice, described him, recounted what he knew about where the accomplice lived, and gave a description of the car. About 3 or 4 A.M. the next morning (June 16th), the police found a car which matched the description they had been given of the car used by the accomplice. It was then parked in a Safeway parking lot about one hundred yards away from 238 Rhode Island Avenue, N.W., where the police expected to find appellant. Appellant was arrested shortly thereafter at that address and was informed that the police considered his car to be evidence in a robbery. At their request he gave them the keys to the car. The police then “went to the car, opened up the trunk, made a quick search, . . . just a check mainly for weapons . We didn’t see anything. We took it to the station. At the station house, we went to the car again, this time [the two policemen] went to the car and a wallet was found” (Tr. 102). This wallet was later identified as belonging to Wooley. No warrant to search the car was ever obtained.

At his trial appellant admitted his narcotics activities and some narcotics dealings with Wooley, but he denied any involvement in the motel robbery and further relied upon an uncorroborated alibi that he was at “Snooks” gambling establishment at the time of the robbery. He claimed that the wallet must have fallen from Wooley’s pocket when he and Wooley had an argument the evening of June 14th after Wooley had demanded that appellant sell him narcotics on credit. So to this extent he corroborated his relationship with Wooley. The Government was permitted to impeach appellant by introducing a prior conviction and his prior guilty plea on an unrelated narcotics offense.

Appellant was sentenced on July 14, 1972, and appealed (Case No. 72-1782). This appeal was later held in abeyance at the request of the Government to allow a determination as to whether the admission into evidence of the prior guilty plea violated an alleged bargain that the Government had made in return for that plea in the earlier unrelated narcotics case. Appellant subsequently made a motion for a new trial, terming the alleged plea bargain newly discovered evidence. Following a hearing, this motion was denied on the ground that no plea bargain had been made. Appellant also appeals from this decision (Case No. 74-1305).

II

It is appellant’s contention that Wooley’s wallet was obtained in an unconstitutional search of his car and that the trial court committed reversible error in denying his motion to suppress such evidence. Basically his claim is that the police did not have probable cause for the search and that the search at the station house which turned up the wallet required a search warrant. We disagree.

In our view appellant’s arguments are authoritatively answered in the negative by the decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In that case, the appellant was apprehended less than an hour after an armed robbery of a filling station and within two miles of the scene of the crime in the company of three other men in a blue compact station wagon which met the description of the robbers’ getaway car. Following the arrest of the occupants, the car was driven to the police station where it was thoroughly searched. The police found two revolvers, certain cards belonging to one of the filling station attendants who had been robbed and other objects which had been taken in the robbery. The Court ruled that probable cause existed to justify the arrest without a warrant, but it noted that the search at the police station could hardly be said to have been made incident to the arrest. It held, however, that there was probable cause to search the car for guns and stolen money and that autos may be searched without a warrant under circumstances that would not justify a similar search of a house. The difference is justified by circumstances

where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

399 U.S. at 48, 90 S.Ct. at 1979, citing Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The validity of the search of the car thus depended not upon being incident to the arrest but upon the officer having reasonable cause to believe that “the contents of the automobile offend against the law.” 399 U.S. at 49, 90 S.Ct. at 1980. The Court further observed:

Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.

Id. at 51, 90 S.Ct. at 1981 (emphasis added).

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.

Id. at 52, 90 S.Ct. at 1981 (emphasis added).

We find the holding and reasoning of Chambers v. Maroney, supra, to be controlling here. Probable cause existed for the seizure of appellant’s car. It fitted the description given by Wooley and another witness. It was found in the vicinity of a suspect meeting the description given by an accomplice (Wooley). The suspect voluntarily surrendered his keys to the police, and it was evident that they fit the car. This tied the car to the evidence that a car of that description had been driven by Lee to transport Wooley to the scene of the robbery. It was not unreasonable to expect that evidence of the fruits of the crime would still be in a car used in that crime 24 hours after the offense. It cannot be assumed that those participating in the crime would certainly destroy such evidence since those who violate our criminal laws do not always act intelligently and often leave incriminating trails.

Nothing more was necessary to justify seizing the car at the scene of the arrest, but appellant argues that “exigent circumstances” were not sufficiently present to justify the search at the station house without a warrant. It seems clear that the police would have been justified in conducting a thorough search of the car on the parking lot since to do otherwise would hazard the loss of a valuable piece of potential evidence. The car was a “fleeting object” found in what might be termed a possibly hostile neighborhood. The police could not know whether appellant had additional accomplices or friends who might have viewed his arrest and might attempt to remove or destroy any incriminating evidence left in the car or wipe off any fingerprints (Wooley’s, if they existed) if the car was not seized. There was also a possibility that incriminating fingerprints may have been obliterated by the elements if the car was left in the lot. In Chambers v. Maroney, the Court could see no difference between seizing and holding a car before presenting the probable cause issue to a magistrate and carrying out an immediate warrantless search of the car, where exigent circumstances exist. We find that such circumstances existed in the present case as well. Therefore, either action would have been clearly reasonable, and this is the constitutional test.

We further find, as did the Court in Chambers, that the probable-cause factor still existed at the station house, so the conduct of a search there without a warrant was also reasonable. A quick glance into the trunk and the rest of the car was certainly desirable as a merely precautionary matter before the car was moved, but it was difficult to make a more detailed search of the car where it was found on the parking lot. It was nighttime and poor visibility would interfere with the search. Moreover, any search would necessarily include a fingerprint check of the car and that could be done better at the station house. It was impracticable to obtain a search warrant since it would be some hours before a magistrate would be available. The policemen who had made the arrest and seized the car would probably be going off duty, and it was desirable that they continue their investigation without interruption since they had considerable knowledge of the background facts and knew what evidence might be material. Also, every hour that the search was delayed increased the hazard that something would happen to any material evidence that did exist. For example, incriminating articles could be taken or fingerprints could disappear.

Delay also could affect the value of any evidence that was obtained. Twenty-four hours had already passed since the robbery, and any further delay in the discovery of material evidence could weaken its probative value with the jury. With a longer delay, the defense might more successfully argue to the jury and the court that evidence obtained from the car had resulted from acts that occurred after the robbery and acts by other persons. In addition, appellant was being held under arrest on the basis of a statement by an alleged accomplice. Since this type of evidence is traditionally suspect and needs corroboration, the police had a duty to act as quickly as possible to obtain evidence that might exonerate or incriminate. Thus, we find the existence of sufficient exigent circumstances to justify a thorough search at the station house. Coolidge v. New Hampshire and United States v. Collins are clearly distinguishable on their facts since neither case presented facts justifying a conclusion that exigent circumstances existed.

Ill

Appellant also contends that reversible error was committed when he was impeached on cross-examination by admission of evidence of his prior guilty plea in a narcotics case and by the court’s failure to give an immediate cautionary instruction.

The statute in the District of Columbia authorizes attacking the credibility of witnesses by the admission of prior convictions. Under our decisions this obviously requires a “conviction,” i. e., a judgment of conviction and sentence, and a mere plea of guilty is insufficient. The admission of the plea was thus error, but the facts here are such as to cause us to conclude that the error was harmless.

Throughout the trial there were many other references to appellant’s involvement with narcotics. In his own testimony appellant stated that he had met Wooley through “other” narcotics dealers and that the only thing the two had in common was “discussions of narcotics.” He also testified that the only reason he told Wooley on June 14th that he did not have any narcotics was that Wooley had told him “he didn’t have any money.” Testimony as to the guilty plea was thus largely cumulative to this testimony which appellant himself introduced.

Appellant at trial also consented to the admission of the plea on the “narcotics charge.” During the discussion between appellant and the court regarding the admission of prior convictions, the following exchange took place:

THE DEFENDANT: The only objection I would have is the robbery conviction, he could bring up what we were just speaking of, you know.
THE COURT: The narcotics charge, the plea to the telephone count [use of telephone in narcotics transactions]?
THE DEFENDANT: Yes, sir. He could do that, Your Honor. I would have no objection to that. He could even speak of the gun charge that I was sentenced to a year on, which I have done ten months and five days of that at Lorton. I don’t think there is anything else he can bring up.

Tr. 131 (emphasis added). Because appellant had consented to the introduction of the guilty plea — in fact he had suggested it — and because he did not object when the plea was introduced, we do not consider that the point is available to appellant on appeal.

Appellant’s status as a dealer in narcotics was relevant and competent to prove part of the offense upon which he was being tried. Evidence of his other narcotics dealing was an appropriate means in this case of establishing the Government’s theory that appellant had induced Wooley to commit the robbery in order, to obtain additional narcotics and to pay for narcotics that he had previously purchased from appellant on credit.

It has been repeatedly held that the rule [requiring the exclusion of evidence of other offenses] will not be given application to exclude evidence which may incidentally show arrest, incarceration or conviction for some other offense, but which has relevancy and competency otherwise, and which the trial court responsibly deems a necessary or not inappropriate means in a particular situation in establishing some material fact or aspect of the prosecution’s case.

Bram v. United States, 226 F.2d 858, 863 (8th Cir. 1955), citing Hardy v. United States, 199 F.2d 704, 707 (8th Cir. 1952).

The fact that appellant had contemporaneously entered a plea of guilty to other narcotics dealings was also corroborative of Wooley’s testimony that appellant had sold him narcotics and thus tended to prove a part of the offense. We merely cite the admissibility of this evidence for this purpose to support our conclusion of harmless error.

Appellant also contends that the case should be reversed because the trial court failed to give an instruction cautioning the jury that the guilty plea was admitted solely for the limited purpose of attacking the credibility of appellant. We do not believe this to be a case that necessarily calls for applying our admonition in United States v. McClain that an “immediate cautioning instruction” is required. The factors we have heretofore cited indicate that this evidence was not highly prejudicial to appellant. Moreover, appellant did not request such instruction notwithstanding that the court had earlier asked counsel to remind him to give a cautionary instruction when evidence was admitted concerning the narcotics dealings between Wooley and appellant. Finally, in its instructions to the jury the court did give a very fair charge with respect to the use of the prior conviction and the evidence concerning appellant’s involvement with narcotics.

For all these reasons we refuse to find that any of the arguments urged by appellant relative to the use of the guilty plea and the evidence of his narcotics activities amount to reversible error.

IV

The appeal also attacks the sufficiency of the evidence to support the guilty verdict against appellant on the charge of assaulting a police officer with a dangerous weapon. On this charge the testimony established that appellant was present at the scene of the robbery, that he was standing outside the front entrance of the motel near some bushes and a little below a wall (Tr. 42, 49, Exhibit 3), that he had told Wooley he was going to “cover” his back (Tr. 42), that appellant was in possession of a gun at the time (Tr. 42), that a shot was heard (Tr. 44, 45, 73) when the policeman was outside his car “between the automobile and the motel” (Tr. 80, 81), that Wooley saw appellant moments thereafter standing a little below the wall (Tr. 49) and that the shot had to come from the 4th Street direction (Tr. 81). Other testimony showed that the right front window of the police car was shattered (Tr. 76, Ex. 2, 7) by what looked like a bullet hole (Tr. 97, 89, Ex. 2, 7), that the car had not previously been damaged (Tr. 78) and that Wooley’s gun had not been fired (Tr. 45, 94). The place where the gun was found negated any inference that it had fractured the car window when Wooley threw it away (Tr. 93). The location of appellant, the police officer, the patrol car and the other objects as marked on the sketch of the area (Ex. 3), when collated with the testimony as to the timing of the shot and the pictures of the shattered car window, indicate that a shot fired from the area near 4th Street where appellant was located and striking the window on the police car would have been aimed in the general direction where Police Officer Hawkins was standing at the time the shot was heard.

There was thus evidence from which a jury could conclude that a shot had been fired at the police officer from the general area where appellant was standing and that appellant had fired that shot. This conclusion is also consistent with his previously declared intention to “cover” Wooley’s back during the robbery. His possession of the .45 caliber Army gun at the time gave him the means to accomplish what he stated to be his intent and what he was charged with doing, i. e., assaulting a police officer while armed with a dangerous weapon.

We view the foregoing facts as being more than adequate to support the jury’s verdict that appellant was guilty of assaulting a police officer while armed with a dangerous weapon; even if reasonable minds might differ as to the guilt of the accused, the decision would still be for the trier of facts.

V

The factual findings of the trial court on the motion for a new trial are supported by the evidence. The evidence does not support an allegation that the plea of guilty was used in contravention of any informal or formal agreement that was entered into with the government in connection with the prior narcotics offense.

For the foregoing reasons we affirm the convictions for armed robbery and assault on a police officer while armed with a dangerous weapon and vacate the conviction for assault with a dangerous weapon upon Harry Loss.

Judgment accordingly.

      . D.C.Code §§ 22-2901, 22-3202.

      . Id., § 22-505(b).

      . Id., § 22-502.

      . See United States v. Johnson, 155 U.S.App. D.C. 28, 475 F.2d 1297 (1973); United States v. Wimbush, 154 U.S.App.D.C. 236, 475 F.2d 347 (1973).

      . Sixty dollars was taken in the robbery, but a paper bag that the police subsequently recovered from the area where Wooley was arrested contained only $13.

      . Wooley originally gave a Northeast Washington address for appellant, whereas the correct address was in Northwest Washington. This caused some 24 hours’ delay in locating appellant.

      . See also Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

      . 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

      . 142 U.S.App.D.C. 100, 439 F.2d 610 (1971).

      . D.C.Code § 14-305 provides:
      § 14-305. Competency of witnesses; impeachment by evidence of conviction of crime

      (a) No person is incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of a criminal offense.
      (b) (1) Except as provided in paragraph (2), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered, either upon the cross-examination of the witness or by evidence aliunde, but only if the criminal offense (A) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment). A party establishing conviction by means of cross-examination shall not be bound by the witness’ answers as to matters relating to the conviction.
      (2)(A) Evidence of a conviction of a witness is inadmissible under this section if-
      (i) the conviction has been the subject of a pardon, annulment, or other equivalent procedure granted or issued on the basis of innocence, or
      (ii) the conviction has been the subject of a certificate of rehabilitation or its equivalent and such witness has not been convicted of a subsequent criminal offense.
      (B) In addition, no evidence of any conviction of a witness is admissible under this section if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness from confinement imposed for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal offense.
      (c) For purposes of this section, to prove conviction of crime it is not necessary to produce the whole record of the proceedings containing the conviction, but the certificate, under seal, of the clerk of the court wherein the proceedings were had, stating the fact of the conviction and for what cause, shall be sufficient.
      (d) The pendency of an appeal from a conviction does not render evidence of that conviction inadmissible under this section. Evidence of the pendency of such an appeal is admissible. (Dec. 23, 1963, 77 Stat. 519, Pub.L. 88-241, § 1, eff. Jan. 1, 1964; July 29, 1970, Pub.L. 91-358, § 133(a), title I, 84 Stat. 550.)

      . See Thomas v. United States, 74 App.D.C. 167, 169, 121 F.2d 905, 907 (1941); Crawford v. United States, 59 App.D.C. 356, 357, 41 F.2d 979, 980 (1930). Cf. United States v. Norris, 281 U.S. 619, 623, 50 S.Ct. 424, 74 L.Ed. 1076 (1930); United States v. Turner, 497 F.2d 406 (10th Cir. 1974); Dalton v. Hunter, 174 F.2d 633 (10th Cir. 1949); Lindsay v. United States, 134 F.2d 960 (10th Cir.), cert. denied, 319 U.S. 763, 63 S.Ct. 1316, 87 L.Ed. 1714 (1943).

      . Cf. United States v. Mizzell, 146 U.S.App. D.C. 399, 452 F.2d 1328 (1971). It should also be noted that appellant was eventually convicted by a formal judgment and sentence.

      . In United States v. Fench, 152 U.S.App. D.C. 325, 470 F.2d 1234 (1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973), we stated:
      Although evidence of criminal conduct for which a defendant is not on trial, as well as evidence that falls short of provable criminal conduct, may not be admitted “to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged”, it is well recognized that such evidence may be admitted for limited purposes if it is relevant to certain issues properly before the jury, provided that its probative value outweighs its prejudicial effect. Where the trial court determines that the probative value of such evidence outweighs its possible prejudice, it “is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one. tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial.”
      152 U.S.App.D.C. at 330-331, 470 F.2d at 1239-1240 (footnotes omitted).

      . Bram v. United States, 226 F.2d 858 (8th Cir. 1955); Hardy v. United States, 199 F.2d 704 (8th Cir. 1952); United States v. Glory Blouse & Sportswear Co., 158 F.2d 880 (2d Cir. 1947).

      . 142 U.S.App.D.C. 213, 218, 440 F.2d 241, 246 (1971); cf. United States v. Mizzell, supra note 12, 146 U.S.App.D.C. at 401, 452 F.2d at 1330.

      . Tr. 15.

      . While the Defendant was on the stand, he was cross-examined by the Government with respect to two prior convictions. The Defendant’s prior criminal convictions were admitted into evidence solely for your consideration in evaluating the credibility of the Defendant as a witness. In other words, in determining whether the Defendant was telling the truth when he testified at this trial. These prior convictions are not evidence of the Defendant’s guilt of the offenses with which he is presently charged. You must not draw any inference of guilt against the Defendant because of these prior convictions. You may consider them only in connection with your evaluation of the credence to be given his present testimony in this Court.
      In this case, while Mr. Wooley was on the stand, the Government elicited testimony concerning his original connection with
      Mr. Lee, and it developed, according to Mr. Wooley’s testimony, that he came to Mr. Lee because of needing to purchase narcotics. We permitted that testimony in evidence in order to show the motivation for the original association of Mr. Wooley and the Defendant, Mr. Lee, and the possible motivation for the events concerning which Mr. Lee testified at the Down Town Motel.
      Now the fact that Mr. Lee engaged in selling narcotics is a matter that has nothing to do with his guilt at this trial. He is not being tried for being a dope peddler. And, as I indicated before, we permitted Mr. Wooley to testify about it, not because of the fact that Mr. Lee is allegedly a dope peddler but merely to show the reasons, how Mr. Wooley, a soldier from Viet Nam, addicted with the drug habit, happened to get in touch, happened to associate with the Defendant, Mr. Lee.
      Tr. 204-205.

      . Joyce v. United States, 147 U.S.App.D.C. 128, 137, 454 F.2d 971, 980 (1971), cert. denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972).