text:
    UNITED STATES of America v. Thomas Francis KING, Appellant (two cases).
    No. 71-1267.
    United States Court of Appeals, District of Columbia Circuit.
    July 18, 1973.

      Melvin M. Feldman and Eugene J. Fitzpatrick, Rockville, Md., were on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Percy H. Russell, Jr., Edwin A. Williams and Raymond Banoun, Asst. U. S. Attys., were on the brief for appel-lee.
    Before TAMM, ROBINSON, and ROBB, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

These appeals feature a dispute within one of the areas we recently explored in Coleman v. Burnett: the right of the accused at a federal preliminary hearing to examine a witness whose testimony is potentially material to the issue of probable cause to bind the accused over for further prosecution. Asserting a denial of that right, appellant unsuccessfully sought from the District Court an order directing a post-indictment reopening of his preliminary hearing, which culminated in an affirmative determination of probable cause. We find that there was such a denial, but we also find Coleman controlling as to the avenue for remediation. We affirm the District Court’s disposition, but without prejudice to an appropriate invocation by appellant of Coleman-type corrective measures.

I

. Appellant was charged with rape and three days later he appeared before a judge of the District of Columbia Court of General Sessions, sitting as a magistrate, for his preliminary hearing. On his objection to a hearing in the absence of the rape-complainant, the judge granted his motion for a continuance and issued a subpoena commanding the complainant to appear on the new date set for the hearing. Despite her compliance with the subpoena and her apparent availability in other respects to testify, the Government rested its entire presentation at the resumed hearing on a hearsay version of the alleged offense by a police officer. The presiding judge rejected defense objections to the Government’s refusal to call the complainant as a witness for the prosecution, and denied defense counsel leave to call her to the witness stand himself. On the basis of the officer’s testimony, the judge found probable cause to hold appellant for grand jury action.

Subsequently, but before the return of an indictment, appellant moved in the District Court for a reopening of the preliminary hearing. The motion was denied, and one of the present appeals is from that denial. Somewhat later, appellant was indicted for rape and robbery, and thereafter he presented to the District Court a second motion seeking a supplemental preliminary hearing and, alternatively, a stay of proceedings or injunctive relief. The other appeal is from the denial of that motion. Still later, appellant was found incompetent to stand trial and was committed to a hospital, where he remains today.

II

We are met at the threshold by the Government’s challenge to our jurisdiction to entertain these appeals. Deeming the orders appealed from nonfinal, and pointing to finality as a prerequisite to appealability, the Government argues that the validity of the denials of appellant’s motions to reopen his preliminary hearing is a question not properly before us. By the Government’s theory, the only course open to appellant is to await a conviction, and in that event to test the denials on an appeal from the judgment of conviction. We do not agree.

To be sure, for familiar reasons, interlocutory orders in criminal cases are generally nonappealable. And, again speaking generally, whether the case is civil or criminal in nature, “a ‘judgment’ or ‘decision’ is final for the purpose of appeal only ‘when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.’ ” But not every order prior to judgment is nonappealable, nor is every proceeding collateral to an ongoing criminal prosecution taboo. We need not ponder the question whether the District Court’s orders denying appellant’s motions would be appealable as orders in such a prosecution, for we are satisfied that they were not of that character.

Nearly a decade ago, we laid down the principle that an accused deprived of a substantial right at his preliminary hearing could seek relief by way of habeas corpus or mandamus. Certainly if appellant had pursued either of those remedies in the District Court separately from the criminal proceeding, he could have taken an immediate appeal from any adverse final decision. Since, on careful analysis, the motions invoking appellant’s preliminary hearing entitlements emerge as litigation substantively apart from the prosecution, the same result must follow.

Each of the motions asked the District Court for an order directing the judge who conducted the preliminary hearing to reopen it for the purpose of permitting appellant’s counsel to examine the complainant as his witness. The common objective of the motions, then, was relief in the nature of mandamus. The only dissimilarity between appellant’s motions and other mandamus undertakings which, for comparable situations, our decisions have approved is that the others have been full-fledged actions for writs of mandamus. While undoubtedly it was this dissimilarity that prompted the Government’s jurisdictional objection, it nevertheless is a distinction without legal difference.

The crucial fact of the matter is that the directive which appellant sought from the District Court was as readily available in an informal proceeding as in the most formal and elaborate suit in mandamus. In this age of increasing emphasis on simplicity, judicial procedures have shed much of their archaic formalism. So, too, the austerity which in earlier times might have pervaded judicial treatment of preliminary hearing problems is largely out of fashion today. Thus a challenge to a magistrate’s determination of probable cause to detain the accused need not be confined within the strictures of habeas corpus, but may, and more probably should be, advanced by a motion in the district court. Even more relevant is Holmes v. Unittd States, in which we specifically held that an accused seeking rectification of a claimed deprivation of rights at his preliminary hearing may, in lieu of a separate action in mandamus, seek redress by a motion in the district court. That is precisely what appellant did in the case at bar, and it is evident that the mere fact that his motions were filed in the court which was to become the forum for the criminal prosecution did not make them steps in the prosecution. Indeed, when appellant’s first motion was presented, he had not even been indicted.

We are advertent to the consideration that appellant’s motions did not undertake to join as a party'the judge who had presided at his preliminary hearing, but that does not affect the conclusion that the effort remained outside the criminal proceeding. The nonjoinder of the judge was but a dispensable bit of formalism. In the federal courts, when the purpose of mandamus is to secure a ruling on the intrinsic merits of a judicial act, the judge need not — and desirably should not — be named as an active party, but at most only as a nominal party with no real interest in the outcome. In the instant cases, the fact that the judge was not named at all did not alter the essential character of appellant’s motions. In Ex parte Abdu, mandamus was sought in the Supreme Court to compel the clerk of a circuit court of appeals to file an appeal record without prepayment of costs. In response to a rule to show cause, the clerk pointed to the court’s action in refusing to direct the filing. The Supreme Court noted “that the remedy prayed is directed not to the court below but to its clerk and hence in form the relief sought is a mandamus to direct the clerk to disobey the order of the court, leaving the order unreviewed and unreversed.” The Court nonetheless concluded:

Looking, however, through form to the essence of things, as no mere independent action of the clerk as clerk is involved, but the authority exerted by the court in directing the action of the clerk complained of is the subject-matter at issue and is the only justification relied upon by the clerk in the answer to the rule, we are of the opinion that in the exercise of a sound discretion we may treat the case from that point of view that is to say, under the circumstances consider the authority to have made the order with the clerk alone as a technical party to the proceeding.

We believe that here substance must similarly be elevated over form. Although appellant’s motions for reopening of his preliminary hearing were technically addressed against the Government, it was obvious that if the relief he wanted was to be granted, the direction to reopen would have to run against the judge who had conducted the preliminary hearing. The judge’s absence as a formal party to the motions caused no concern to anyone; indeed, the Government did not object, and consequently waived the defect.

In sum, the motions for reopening were not parts of the criminal proceeding. They were separate, permissible efforts to obtain relief in the nature of mandamus, and their formal deficiencies are inconsequential. The rulings denying relief are appealable, and we now proceed to the appeals on the merits.

Ill

In contending that he was erroneously denied the privilege of calling the complainant to testify at his preliminary hearing, appellant relies chiefly on our decisions in Washington v. Clemmer and Ross v. Sirica. In Washington, just as in this case, the accused, who was charged with rape, sought leave to subpoena and question the complainant at his preliminary hearing. We held that, absent a showing that it would be unreasonable or oppressive for physiological or psychological reasons to require her to testify, it was error to deny the request. In Ross v. Sirica, the accused, charged with murder, endeavored to subpoena three alleged eyewitnesses for his preliminary hearing. The request was denied and probable cause was found solely on the testimony of a police officer who related what those witnesses had told him. We held that the accused was entitled to a preliminary hearing at which witnesses might be examined, notwithstanding the return of an indictment against him in the meantime.

These decisions weigh heavily in favor of appellant’s claim of error in the preliminary hearing now under scrutiny. In Ross, we declared that “[wjhatever the full reach of an accused’s subpoena rights at a preliminary hearing, . he is entitled to compel the attendance of eyewitnesses. . . . ” In Washington, we recognized that “[l]ikely to be called on this basis, in addition to alibi witnesses, are the complainant and other material witnesses named in the complaint who for some reason have not been called by the Government.” In Washington, we also noted that an accused may obtain subpoenas to compel the attendance of “material witnesses reasonably requested. .. . ”

These holdings rested on former Federal Criminal Rule 5(e), which made plain that the evidence upon which a magistrate must act at a preliminary hearing includes that adduced by the accused either in cross-examination of Government witnesses or by independent introduction. This requirement survives in the present Federal Criminal Rule 5.-1(a). As we said in Ross, the magistrate “sits as a judicial officer to sift all the evidence before resolving probable cause, and cannot decline to issue subpoenas on the ground that only the Government’s evidence is probative.”

We recently had occasion in Coleman v. Burnett to reexamine Ross with a particular view toward ascertaining whether the rationale underlying that holding had been eroded by the passage of the Federal Magistrates Act. We concluded that the legislative history of the Act left no doubt that the primary mission of the federal preliminary hearing is to establish the existence or nonexistence of probable cause to hold the accused for further proceedings, and is not to furnish defense counsel with discovery of the Government’s case. The Act’s rejection of discovery at the preliminary hearing as a legitimate end in itself undercuts Ross to the extent— but only to the extent — that it vindicated defense discovery rights. Left unimpaired is the principle, basic to Washington and Ross and reaffirmed in Coleman, that the accused possesses the right to present in his own behalf evidence tending to negate the Government’s showing of probable cause at the preliminary hearing.

Coleman, in which we found error in the refusal of an accused’s bid to subpoena an undercover narcotics agent to testify at his preliminary hearing, not only sustains but strengthens the continuing viability of Washington and Ross as precedents supporting appellant’s argument here. More importantly, as we held in Coleman, denial of the right to call a witness whose testimony is material to the issue of probable cause is not only a contravention of Criminal Eule 5.1(a) but also a deprivation which reaches constitutional magnitude by its infringement of the Sixth Amendment’s guaranty of effective assistance of counsel at every critical stage of the criminal proceeding.

The test for determining whether or not a particular witness should have been allowed to testify at a preliminary hearing “couples the witness’ materiality with an absence of good cause for not requiring his presence, and its operation does not depend upon which side might have been expected to call the witness.” Applying that standard here, the infirmity in appellant’s preliminary hearing is glaring. The complainant in this rape prosecution — clearly the material witness — was available to testify. No reason was presented to the presiding judge as to why, if called, she should not be allowed to testify. In such circumstances, we agree with appellant that the judge’s refusal to permit defense counsel to examine the complainant as his own witness constituted error. It was, of course, possible — perhaps probable — that her testimony would have been unhelpful or even damaging to appellant, but it cannot be gainsaid that it also could have weakened or destroyed probable cause. With that capability, it was for appellant, not the judge, to say whether the try was to be made.

IY

Had appellant not been indicted, it is clear that he would have been entitled to a reopening of his preliminary hearing to afford an opportunity for rectification of the error. On the controlling authority of Coleman v. Burnett, it must be concluded that the indictment against appellant does not preclude resort to other safeguards against trial prejudice flowing from the infirmity previously developing in his preliminary hearing.

It is well settled that the return of an indictment makes conclusive the existence of probable cause to hold the accused for further prosecution. But this does not mean that the indictment eradicates any deprivation of constitutional rights which may have occurred at the preliminary hearing. As the Supreme Court has made evident, the need to protect the accused from harmful consequences of such a wrong survives grand jury action in the meantime, notwithstanding its dispositive impact upon the question of probable cause. And we have unhesitatingly permitted victims of legally infirm preliminary hearings to avail themselves of appropriate remedial measures even after an indictment has issued. As we did in Coleman, we must adhere to that course here.

In appellant’s situation, however, there is nothing to be achieved by honoring his request to reopen his preliminary hearing at this late date, even assuming that that particular course of action could in any event be proper. Like appellant Dancis in Coleman, the present appellant has not yet been tried, and the judge who is to preside over any trial of the pending indictment will be in a good position to obviate any risk of prejudice stemming from the flawed preliminary hearing before such prejudice materializes. Of course, as long as appellant remains incompetent to stand trial, immediate relief is not imperative. But should there come a time when he is deemed competent, the trial judge will be able to “draw upon his imagination in the kind of remedy-fashioning which traditionally has been a prerogative of the federal judiciary ” to suitably avert injury from the wrong suffered here.

We accordingly affirm the District Court’s denial of appellant’s motions to reopen his preliminary hearing, but without prejudice to the pursuit of corrective measures, of the type indicated in Coleman v. Burnett, in the pending criminal ease to negate possible prejudice from the error in refusing to permit the complainant to be called to testify at his preliminary hearing.

Affirmed.

      . 155 U.S.App.D.C. 302, at 311-313, 477 F.2d 1187, at 1196-1198, 1200-1207 (1973). For that reason, and because Coleman was under submission when this appeal became ready for attention, we deferred its consideration pending the decision in Coleman.

      . Now the Superior Court of the District of Columbia, D.C.Code § 11-901 (Supp. V. 1972).

      . Pursuant to 18 U.S.C. § 3041 (1970) and D.C.Code § 11-963 (c) (1967).

      . Neither the admission of the hearsay nor the wholly hearsay basis for the probable cause finding is attacked here. See Coleman v. Burnett, supra note 1, at 1202-1203.

      . The resumed hearing was conducted by a different judge from the one who had directed the subpoena for the complainant.

      . No question in regard to this ruling is presented on these appeals.

      . See note 42, infra.

      . When, at the conclusion of the officer's testimony, counsel sought to call the complainant as a witness, the judge ruled: The court has at this time heard adequate evidence to establish probable cause to hold [appellant] for the action of the grand jury on the charge of rape.

      . D.C.Code § 22-2801 (1967).

      . D.C.Code § 22-2901 (1967).

      . See text infra at notes 12-13.

      . DiBella v. United States, 369 U.S. 121, 124-132, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (order denying pretrial motion to suppress); United States v. Perkins, 140 U.S.App.D.C. 76, 433 F.2d 1182 (1970) (removal order pursuant to Fed.R.Crim. P. 40); Cephus v. United States, 117 U.S.App.D.C. 15, 17 & n. 6, 324 F.2d 893, 895 & n. 6 (1963) (denial of motion for judgment of acquittal) ; Nelson v. United States, 93 U.S.App.D.C. 14, 24-25, 208 F.2d 505, 515-516, cert. denied, 346 U.S. 827, 74 S.Ct. 48, 98 L.Ed. 352 (1953) (order denying motion to suppress) ; United States v. Garber, 413 F.2d 284, 285 (2d Cir. 1969) (denial of motion for severance and change of venue) ; United States v. Curry, 442 F.2d 428 (4th Cir. 1971) (order denying motion to dismiss indictment) ; United States v. Tinkoff, 153 F.2d 106, 107 (7th Cir. 1945), cert. denied, 329 U.S. 740, 67 S.Ct. 56, 91 L.Ed. 638 (1946) (orders denying petition for subpoena duces tecum and for appointment of an impartial physician). By statute, some interlocutory orders in criminal cases are appealable by the Government. See 18 U.S.C. § 3731 (1970); D.C.Code § 23-104(a)(1) (Supp. V 1972). And see text infra at notes 14-15.

      . Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377 (1956), quoting St. Louis, I. M. & S. R.R. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 27 L.Ed. 638 (1883). See also Carroll v. United States, 354 U.S. 394, 403-405, 408-414, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); Berman v. United States, 302 U.S. 211, 212-213, 58 S.Ct. 164, 82 L.Ed. 204 (1937).

      . Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (order denying reduction of bail) ; Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (order denying leave to appeal in forma pauperis). See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Redding & Co. v. Russwine Constr. Corp., 135 U.S.App.D.C. 153, 156-158, 417 F.2d 721, 724-726 (1969), and cases there cited.

      . See Coleman v. Burnett, supra note 1, at 1192-1193 of 477 F.2d; Ross v. Sirica, 127 U.S.App.D.C. 10, 11-12 & n. 2, 380 F.2d 557, 558-559 & n. 2 (1967); Washington v. Clemmer, 119 U.S.App.D.C. 216, 217-218 & n. 2, 339 F.2d 715, 716-717 & n. 2, following remand, 119 U.S.App.D.C. 226, 227, 339 F.2d 725, 726 (1964).

      . Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 894, 900 (1964), cert. denied, 380 U.S. 944, S5 S.Ct. 1029, 13 L.Ed.2d 964 (1965).

      . Coleman v. Burnett, supra note 1, at 1192 of 477 F.2d (mandamus); Washington v. Clemmer, supra note 15, 119 U.S.App.D.C. at 217-218, 339 F.2d at 716-717 (habeas corpus). Compare Ross v. Sirica, supra note 15, 127 U.S.App.D.C. at 11-14, 380 F.2d at 558-561.

      . See cases cited supra note 17.

      . See Fed.R.Civ.P. 1; Fed.R.Crim.P. 2.

      . DiCesare v. Chernenko, 303 F.2d 423, 424 (4th Cir. 1962). See also United States v. Florida, 165 F.Supp. 328, 331 (E.D.Ark.1958); United States v. Vassallo, 282 F.Supp. 928, 929 (E.D.Pa.1968); United States v. Zerbst, 111 F.Supp. 807, 809, 810 (E.D.S.C.1953). Habeas corpus is, however, available where the accused is arrested in a different district and the magistrate is acting under Fed.R.Crim.P. 40. See Price v. Henkel, 216 U.S. 488, 492-493, 30 S.Ct. 257, 54 L.Ed. 581 (1910); Bryant v. United States, 167 U.S. 104, 105, 17 S.Ct. 744, 42 L.Ed. 94 (1897).

      . 125 U.S.App.D.C. 187, 370 F.2d 209 (1966).

      . Id. at 188 n. 5, 370 F.2d at 210 n. 5.

      . The motion may be made as a step in the criminal proceeding. Id. If it is, the ruling on it is not immediately appealable. DiCesare v. Chernenko, supra note 20, 303 F.2d at 424. The motion may, however, be made independently of the prosecution, and, if so, the appealability of the ruling is preserved. United States v. Allen, 133 U.S.App.D.C. 84, 85, 408 F.2d 1287, 1288 (1969).

      . A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 442, 2 A.L.R.Fed. 558 (2d Cir. 1966); Rapp v. Van Dusen, 350 F.2d 806, 812-813 (3d Cir. 1965); General Tire & Rubber Co. v. Watkins, 363 F.2d 87, 88-89 (4th Cir.), cert. denied, 385 U.S. 899, 87 S.Ct. 204, 17 L.Ed.2d 131 (1966). See also Yablonski v. United Mine Workers of America, 147 U.S.App.D.C. 193, 195-196, 454 F.2d 1036, 1038-1039 (1971).

      . The motions were styled “United States of America v. Thomas F. King.” Compare United States v. Allen, supra note 23.

      . 247 U.S. 27, 38 S.Ct. 447, 62 L.Ed. 966 (1918).

      . Id. at 29, 38 S.Ct. at 448.

      . Id.

      . See note 25, supra.

      . Town of Scott v. Artman, 237 Ill. 394, 86 N.E. 595, 596 (1908); State ex rel. Clark v. Bailey, 99 Mont. 484, 44 P.2d 740, 743 (1935); People v. Northern Cent. R.R., 164 N.Y. 289, 58 N.E. 138, 140 (1900); State ex rel. Viking TP. v. Mikkelson, 24 N.D. 175, 139 N.W. 525, 528 (1912); City of Portland v. Coffey, 67 Or. 507, 135 P. 358, 359 (1913); Rodriguez v. Richmond, 234 S.W.2d 248, 249-250 (Tex.Civ.App.1950).

      . Supra note 15.

      . Supra note 15.

      . 119 U.S.App.D.C. at 217, 339 F.2d at 716.

      . Id. at 219, 339 F.2d at 718.

      . 127 U.S.App.D.C. at 11, 380 F.2d at 558.

      . Id.

      . Id. at 13, 380 F.2d at 560. On the return-of-indictment point see, however, text infra at note 54-60.

      . Id.

      . 119 U.S.App.D.C. at 219, 339 F.2d at 718.

      . Id.

      . Former Fed.R.Crim.P. 5(c) provided:
      The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided in these rules. After concluding the proceeding the commissioner shall transmit forthwith to the clerk of the district court all papers in the proceeding and any bail taken by him.

      . Present Fed.R.Crim.P. 5.1 (a) provides :
      If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the federal magistrate shall forthwith hold him to answer in district court. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12.

      . 127 U.S.App.D.C. at 12, 380 F.2d at 559.

      . Supra note 1.

      . Pub.L.No.90-578, tit. III, § 303(a), 82 Stat. 1110, 1117 (1968), 18 U.S.C. § 3060 (1970).

      . Coleman v. Burnett, supra note 1, at 1198-1200 of 477 F.2d. See S.Rep.No. 371, 90th Cong., 1st Sess. 34-35 (1967).

      . See Ross v. Sirica, supra note 15, 127 U.S.App.D.C. at 12, 380 F.2d at 559; Blue v. United States, supra note 16, 119 U.S.App.D.C. at 322, 342 F.2d at 901.

      . The discovery issue was not basic to the holding in Ross. Rather, that decision, like Washington v. Clemmer, supra note 15, derived its central rationale from the requirements of Fed.R.Crim.P. 5. See Ross v. Sirica, supra note 15, 127 U.S.App.D.C. at 13, 380 F.2d at 560; Washington v. Clemmer, supra note 15, 119 U.S.App.D.C. at 219, 228, 339 F.2d at 718, 727. In Coleman, we reiterated our conviction that it is consistent with the purpose of the preliminary hearing to grant requests for subpoenas upon a “plausible showing that [the] witness could contribute significantly to the accuracy of the probable cause determination. . . . ” Coleman v. Burnett, supra note 1, at 1205 of 477 F.2d.

      . Coleman v. Burnett, supra note 1, at 1207.

      . Id. at 1203-1207.

      . Quoted in note 42, supra.

      . Coleman v. Burnett, supra note 1, at 1204-1205 of 477 F.2d. We relied primarily on Coleman v. Alabama, 399 U.S. 1, 7-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

      . Coleman v. Burnett, supra note 1, at 1205 of 477 F.2d (citations omitted).

      . Washington v. Clemmer, supra note 15, 119 U.S.App.D.C. at 220-221, 339 F.2d at 719-720.

      . Coleman v. Burnett, supra note 1, at 1209-1210 of 477 F.2d.

      . Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283 (1932); Howard v. United States, 128 U.S.App.D.C. 336, 341-342, 389 F.2d 287, 293-294 (1967); Crump v. Anderson, 122 U.S.App.D.C. 173, 175-177, 352 F.2d 649, 651-653 (1965).

      . Coleman v. Burnett, supra note 1, at 1209 of 477 F.2d.

      . See Id. at 1209-1210, discussing the controlling influence of Coleman v. Alabama, supra note 52, on the matter.

      . See cases cited supra note 29.

      . See Holmes v. United States, supra note 21, 125 U.S.App.D.C. at 188-189, 370 F.2d at 210-211; Dancy v. United States, 124 U.S.App.D.C. 58, 61, 62, 361 F.2d 75, 78, 79 (1965). See also Ross v. Sirica, supra note 15, 127 U.S.App.D.C. at 13-14, 380 F.2d at 560-561; Blue v. United States, supra note 16, 119 U.S.App.D.C. at 321, 342 F.2d at 900.

      . In Coleman v. Burnett, supra note 1, at 1208-1209 of 477 F.2d, we found it unnecessary to decide whether a post-indictment supplemental preliminary hearing is still available to correct defects at the first preliminary hearing, in view of the language of § 303 of the Federal Magistrates Act:
      [n]o preliminary examination . shall be required to be accorded an arrested person . . . if at any time subsequent to the initial appearance of such person before a judge or magistrate and prior to the date fixed for the preliminary examination ... an indictment is returned ....
      Pub.L.No.90-578, tit. III, § 303(a), 82 Stat. 1107, 1117 (1968), 18 U.S.C. § 3060 (e) (1970).

      . See Coleman v. Burnett, supra note 1, at 1211.

      . Id. at 1211.

      . Id. at 1211.

      . Among the pretrial steps which we suggested for the court’s consideration were (a) making the complainant’s grand jury-testimony available to the defense, (b) arranging a voluntary interview between the complainant and defense counsel, and (c) allowing defense counsel to depose the complainant by written interrogatories ; and these options certainly do not exhaust the remedial possibilities. Coleman v. Burnett, supra note 1, at 1211-1212.


source: Caselaw Access Project

author: PER CURIAM: ROBB, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America v. James B. FORREST, Appellant.
    No. 71-1427.
    United States Court of Appeals, District of Columbia Circuit.
    July 18, 1973.
    Samuel A. Stern, Washington, D. C. (appointed by this Court), Stephen A. Weiswasser and William P. Hoffman, Jr., Washington, D. C., were on the brief for appellant. Max O. Truitt, Jr., Washington, D. C., also entered an appearance for appellant.
    Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Guy H. Cunningham, III, Asst. U. S. Atty., were on the brief for appellee.
    Before TAMM, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

Appellant and four companions were jointly indicted on one count each of carnal knowledge. Following a three-day jury trial alone, appellant was found guilty, and later was sentenced to five to fifteen years imprisonment. This court reversed the District Court’s denial of appellant’s request for release pending appeal, and subsequently affirmed his conviction without opinion. Appellant thereafter filed two successive motions in each of which he sought alternatively a reduction of sentence or a resentenc-ing under the provisions of the Federal Youth Corrections Act. Both motions were denied, and from the denial of the second he takes this appeal.

At the time of sentencing, appellant was nineteen years old. His adult criminal record consisted of two charges of disorderly conduct and one conviction of robbery — the theft of $40 from a theater cashier. His juvenile record showed charges of housebreaking, petty larceny, truancy, disorderly conduct, and involvement in taking several dollars from another boy. Appellant had served a six-month sentence on the robbery conviction.

Each of appellant’s four codefendants received a disposition under the Youth Corrections Act. When, two weeks later, appellant appeared for sentencing, his counsel called the court’s attention to his promising employment record and requested the court to either place him on probation or commit him under the Act. In response the court said:

This is not a pleasant case. This man has a perfectly terrible record, and the recommendations of the Probation Officer are adverse to the Youth Corrections Act.

Then, as we have said, appellant was sentenced to prison for five to fifteen years.

Our chief concern is appellant’s claim that the District Court erred in refusing a commitment pursuant to the provisions of the Youth Corrections Act without an express finding that he would not benefit from treatment thereunder. For a convicted defendant qualified by age for a disposition afforded by the Act, an affirmative finding to that effect is required by our decisions in United States v. Waters, and United States v. Ward; and in our recent en bane decision in United States v. Coefield, we held that the sentencing judge must explicate his reasons for his conclusion that such a disposition should not be directed. Applying these requirements to the circumstances of appellant’s case, it is evident that his contention has substantial merit.

The question to be resolved hinges on our need to determine the basis for the District Court’s decision not to sentence appellant under the Act. In order to implement the rehabilitative goals which Congress sought by that legislation, Section 5010(d) requires the sentencing judge to affirmatively find that the youth offender will not benefit from treatment under the Act before sentencing him as an adult. In the “exceptional case” where the judge makes such a finding, he may exercise his discretion to impose the adult sentence, but this does not mean that he has unrestricted freedom to pick and choose between a disposition authorized for youths by the Act and the adult sentence authorized by the statute which the youth offended. The judge’s discretion is strictly circumscribed by Section 5010(d)’s requirement that he affirmatively determine that the youth “will not derive benefit from” a commitment under the Act.

The affirmative finding which Section 5010(d) mandates involves more than simply meting out the full statutory penalty to an otherwise eligible youth. In Coefield we emphasized that unless the rejection of a Youth Act disposition is accompanied by explicit reasons supporting the conclusion that the youth will not benefit, “it cannot be said with certainty that the Act was considered and a negative finding with respect to its possible benefits was made.” Even if it could be said that the disposition in appellant’s case reflects a finding that he would not gain from Youth Act treatment, articulation of the judge’s supporting reasons is essential to meaningful review.

As we pointed out in Coefield, a clear statement of the judge’s reasons for refusing a Youth Act disposition is “essential to a knowledgeable administration of the Act as intended by Congress.” Accordingly, we held therein that the record in every case must reflect (a) that the judge is aware of the applicability of the Act to the offender before him and understands the scope of his discretion under the Act; (b) that the judge has been apprised of the aspects of the offender’s background pertinent to the sentencing decision either from what he has learned at trial, from a presentenee report, or from a report made pursuant to Section 5010(e) ; and (c) that the judge by his statement of reasons or reference to a Section 5010(e) report has related the facts of the offender’s situation to the applicable law in concluding that the youth would not benefit from disposition under the Act.

From the record of appellant’s sentencing, it appears indisputably that these three essential considerations were neglected by the District Court. Here the judge simply stated that appellant had “a perfectly terrible record” and that the probation officer’s recommendations were “adverse to the Youth Corrections Act.” There was no identification of facts in the presentence report indicating that appellant was an inappropriate candidate for a Youth Act disposition, nor does the transcript of the sentencing reveal any statement of any other reason why the judge felt that such treatment would be unfruitful for appellant. Neither “a perfectly terrible record” nor an unelucidated “adverse” recommendation by a probation officer is necessarily inconsistent with a conclusion that the youth would not benefit. Those statements, standing alone without explanation or elaboration, can hardly be said to evince that relationship of relevant facts to applicable law which is prerequisite to a refusal of Youth Act treatment.

When an appellate court is asked to determine the propriety of a denial of Youth Act treatment to an apparently eligible offender, and the record contains only a comment on the defendant’s record and a reference to a probation officer’s “recommendations” instead of an explicit supporting rationale for the sentencing judge’s action, meaningful review is impossible. It is neither our function nor our prerogative to supply missing reasons for the judge’s conclusion, and it would contravene the plain requirement of the Act and our own en banc decisions for us to affirm without such a factual finding. We have no recourse but to vacate the sentence imposed on appellant, and remand for resentencing in accordance with the standards set forth herein.

So ordered.

ROBB, Circuit Judge,

concurring:

Since I am bound by previous decisions of this court I acquiesce in the result.

      . D.C.Code § 22-2801 (1967).

      . See id.

      . United States v. Forrest, 135 U.S.App.D.C. 350, 352, 418 F.2d 1186, 1188 (1969).

      . United States v. Forrest, No. 23,088 (D.C.Cir. Mar. 31, 1970) (unpublished).

      . 64 Stat. 1086 (1950), 18 U.S.C. § 5005 (1970).

      . See United States v. Forrest, supra, note 2, 135 U.S.App.D.C. at 351-352, 418 F.2d at 1187-1188.

      . Id.

      . The four codefendants had pleaded guilty to the lesser included offense of taking indecent liberties with a minor. D.C. Code § 22-3501 (1967). Of the five, only appellant chose to stand trial.

      . See 18 U.S.C. § 5010 (1970).

      . 141 U.S.App.D.C. 289, 294, 437 F.2d 722, 727 (1970).

      . 147 U.S.App.D.C. 149, 151, 454 F.2d 992, 994 (1971).

      . 155 U.S.App.D.C. 205, 476 F.2d 1152 at 1155 (en banc 1973). We deferred our consideration of the instant case pending the decision in Coefield and companion cases.

      . 18 U.S.C. § 5010(d) (1970).

      . 18 U.S.C. § 5010(d) (1970) provides:
      If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.
      See United States v. Coefield, supra note 12, at 1154 of 476 F.2d; United States v. Waters, supra note 10, 141 U.S.App.D.C. at 294, 437 F.2d at 727.

      . United States v. Coefield, supra note 12, at 1156 of 476 F.2d; United States v. Waters, supra note 10, 141 U.S.App.D.C. at 291, 437 F.2d at 724.

      . United States v. Ward, supra note 11, 147 U.S.App.D.C. at 151, 454 F.2d at 994; United States v. Waters, supra note 10, 141 U.S.App.D.C. at 293, 437 F.2d at 726.

      . United States v. Coefield, supra note 12, at 1156 of 476 F.2d; United States v. Waters, supra note 10, 141 U.S.App.D.C. at 292, 437 F.2d at 725.

      . United States v. Coefield, supra note 12, at 1155 of 476 F.2d.

      . Id. at 1157.

      . 18 U.S.C. § 5010(e) (1970) provides:
      If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings.

      . United States v. Coefield, supra note 12, at 1157.

      . Compare United States v. Phillips, 156 U.S.App.D.C. 217, 220-223, 479 F.2d 1200, 1203-1206 (1973).

      . See text supra at note 21.

      . United States v. Coefield, supra note 12, at 1155-1158 of 476 F.2d; United States v. Reed, 155 U.S.App.D.C. 198, 203-204, 476 F.2d 1145, 1150-1151 (en banc 1973).

      . See text supra at notes 14, 19-22.


author: PER CURIAM:

text:
    E. Parl WELCH, Appellant, v. George P. SHULTZ, Secretary of the Treasury, et al.
    No. 71-1208.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 22, 1972.
    Decided July 26, 1973.

      Glenn R. Graves, Washington, D. C., with whom John W. Karr, Washington, D. C., was on the brief, for appellant.
    Richard S. Stolker, Atty., Dept, of Justice, with whom Robert L. Keveh and Lee B. Anderson, Attys., Dept of Justice, were on the brief, for appellee. George W. Calhoun, Atty., Dept, of Justice, also entered an appearance for ap-pellee.
    Before McCREE, Circuit Judge for the Sixth Circuit, and ROBINSON and ROBB, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 291(a) (1970).

   PER CURIAM:

In February, 1967, appellant applied to the Secretary of the Treasury for a license to send a check for $2,000 to the Canadian Friends Service Committee, a relief organization headquartered in Toronto. The organization was accepting contributions toward the purchase of medical supplies for civilian use in North and South Vietnam, and appellant, a Quaker citizen of the United States, stated in his application that his check was intended to serve that purpose. On March 10, 1967, appellant was notified that his request had been denied on the ground that the contribution contemplated was inconsistent with then —existing policy of the Office of Foreign Assets Control of the Department of the Treasury in its administration of the Trading With the Enemy Act and regulations promulgated thereunder.

Prior to appellant’s application, the Office of Foreign Assets Control pursued the general practice of denying all applications for licenses to send money or commodities directly or indirectly to certain countries, including North Vietnam. In the fall of 1966, by virtue of an exception then made, ten applications were granted to the extent of authorizing a total of $10,200 to be sent to the Canadian Friends Service Committee and the International Committee of the Red Cross for the procurement of medical supplies for civilian relief in North Vietnam and Viet Cong-controlled areas. The exception followed advice from the Department of State that a program allowing contributions in limited amounts under controlled conditions would be desirable. It was hoped that an impartial relief team would be permitted to observe the distribution of the supplies, and that channels would open through which assistance could be provided to American prisoners of war. Action on subsequent applications was withheld, and the program was kept under constant review, to enable a determination as to whether sufficient progress was being made to warrant its continuance.

On February 27, 1967, however, a reversion to the general policy of total prohibition of such contributions was announced. The State Department had informed the Office of Foreign Assets Control that North Vietnam was unwilling to allow observers from relief agencies to witness distributions. Responses by license applicants to requests for information as to whether medical supplies sent to North Vietnam were actually confined to civilian use were uniformly to the effect that while the applicants hoped or believed that the supplies would serve only the intended recipients, there was no guaranty or evidence that they would. The Office of Foreign Assets Control then decided that all pending and subsequently-filed requests for licenses to send funds to relief agencies abroad for the purchase of medical supplies for shipment to North Vietnam would be denied because there was no assurance that the supplies would in fact be devoted to the nonmilitary purposes intended by the donors. And so it was that appellant’s application was refused.

On December 1, 1967, appellant brought suit in the District Court for declaratory and injunctive relief from the refusal. He asserted that the Trading With the Enemy Act did not authorize the administrative regulations and policy which led to the denial of his application; and, alternatively that if the Act did, it contravened the First and Fifth Amendments. By supplemental complaint, appellant drew into the litigation another incident. In February, 1968, appellant sent a check for $25.00 to the Canadian Friends Service Committee which, by his allegations, was intended as a contribution toward the work of Quaker Vietnam medical aid. A month later, his bank notified him that the funds represented by the check were blocked and could not be paid without a license from the Treasury Department.

In dealing with appellant’s suit, the District Court first addressed his motion that a three-judge court be convened. Deeming appellant’s constitutional contentions insubstantial and holding that the issues over regulations and policy were properly to be determined by a single judge, the court denied the motion. Subsequently, the court awarded a summary judgment against appellant on the ground that the action of which he complained was within the ambit of authority delegated by the Trading With the Enemy Act, and that the administrative ban on his contributions was constitutionally unobjectionable.

On this appeal, from the latter determination, broad issues of constitutional power and statutory interpretation have been tendered for our consideration. We think it clear, however, that resolution of these issues may be unnecessary, and in any event on the record before us is unfeasible. After this appeal came under submission, there occurred a significant change of conditions which could exert a profound effect on this case. On January 27, 1973, the United States and other belligerents in Vietnam signed an agreement formally terminating hostilities and specifying a number of steps designed to restore and preserve peace. That instrument solemnly declares that “[t]he United States anticipates that this Agreement will usher in an era of reconciliation with the Democratic Republic of Vietnam as with all peoples of Indochina,” and that “[i]n pursuance of its traditional policy, the United States will contribute to healing the wounds of war and to postwar reconstruction of the Democratic Republic of Vietnam and throughout Indochina.” It further declares that “[t]he ending of the war, the restoration of peace in Vietnam, and strict implementation of this Agreement will create conditions for establishing a new, equal and mutually beneficial relationship between the United States and the Democratic Republic of Vietnam,” and simultaneously “will ensure stable peace in Vietnam and contribute to the preservation of lasting peace in Indochina and Southeast Asia.” Since execution of this agreement, all military forces and personnel of the United States have been withdrawn from Vietnam and for the United States the conflict there is at an end.

We are not able to measure with any reasonable degree of precision the possible impact of this turn of events upon the quarrel in which the litigants became embroiled. The change in circumstances which has overtaken this appeal may well have seriously modified the controversy which the parties briefed and argued here, or even actually mooted it. In light of the pledges incorporated in the cease-fire agreement, it may be that the Office of Foreign Assets has modified its no-contributions policy, or plans to do so in the near future. By the same token, the basis for decision of any dispute which may have survived that agreement may, at the very least, have taken on an added dimension.

We think it inappropriate to undertake, in the present posture of the record, a settlement of the issues involved. Questions of constitutional magnitude — here, respecting administrative policy — are not to be decided unless strictly necessary, and we cannot be sure that there is any longer a need to reach them at all. The same may be said for the important questions of statutory construction which the District Court was summoned to resolve, which supervening events may have altered or even eliminated. And if indeed all difficulties between the litigants have been cqmposed by those events, our authority to adjudicate them has ceased.

In sum, an accurate assessment of the current status of the controversy requires exploration and reappraisal, and any residual problems call for definition and examination afresh on an up-to-date factual record. The forum equipped for adversary treatment of these considerations is obviously the District Court, and to these ends, we remand the record. The parties are urged to seek reconciliation of any differences they may still have, and simplification of any judicial task that may remain. Should the District Court find any aspect of the litigation still alive, it will be free to make the decision it deems proper. We reserve our jurisdiction pending completion of the remand.

So ordered.

      . 40 Stat. 411 (1917), as amended, 50 U.S.C.App. § 1 et seq. (1970).

      . Foreign Assets Control Regulations, 31 C.F.R. pt. 500 (1972).

      . The blocking resulted from a letter directing all domestic banking institutions not to pay or forward, without specific authorization from the Office of Foreign Assets Control, any negotiable instrument which was received from a named Canadian bank on a collection basis and which was payable to or indorsed by the Canadian Friends Service Committee or named individuals known to be involved in receiving funds on its behalf for medical aid in Vietnam. It was the practice of the Office of Foreign Assets Control to license payment of instruments as to which the drawer presented evidence that it was not intended as a contribution toward medical aid in Vietnam.

      . Pursuant to 28 U.S.C. § 2282 (1970).

      . Welch v. Kennedy, Civ. No. 3066-67 (D.D.C. Nov. 12, 1970) (unreported).

      . Welch v. Kennedy, 319 F.Supp. 945 (1970).

      . Agreement on Ending the War and Restoring Peace in Vietnam, January 27, 1973, T.I.A.S. No. -, reproduced in 119 Cong.Rec. H 447 (daily ed. Jan. 24, 1973).

      . Id. ch VIII, art. 21.

      . Id.

      . Id. ch. VIII, art. 22.

      . Id.

      . We note, however, the continuing military presence of the United States in Cambodia, and its current negotiations with North Vietnam on termination of the Cambodian conflict.

      . Thorpe v. Housing Authority, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960); Harmon v. Brucker, 355 U.S. 579, 581-582, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1955).

      . See Barr v. Matteo, 355 U.S. 171, 172, 78 S.Ct. 204, 2 L.Ed.2d 179 (1957); Eccles v. Peoples Bank, 333 U.S. 426, 432, 68 S.Ct. 641, 92 L.Ed. 784 (1948).

      . E. g., Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); A. L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 328-331, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961).

      . See United States v. Petrillo, 332 U.S. 1, 12, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 210-213, 55 S.Ct. 187, 79 L.Ed. 281 (1934); Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-549, 44 S.Ct. 405, 68 L.Ed. 841 (1924).


text:
    S. G. HOOPER, Appellant, v. Melvin LAIRD, Secretary of the Department of Defense, et al.
    No. 72-1198.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 23, 1973.
    Decided Aug. 3, 1973.
    Victor Rabinowitz, New York City, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court, for appellant. David Rein, Washington, D. C., also entered an appearance for appellant.
    Robert D. Zsalman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Nathan Dodell, Asst. U. S. Attys., were on the brief, for appellees.
    Before McGOWAN, Circuit Judge, GEORGE C. EDWARDS, Circuit Judge for the Sixth Circuit, and TAMM, Circuit Judge.

       Sitting by designation pursuant to Title 23, U.S.Code Section 291(c).

   PER CURIAM:

When this appeal was argued before us, the parties addressed themselves in major part to the question of whether O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), is to be given retrospective operation. Because it appeared at that time that this issue was upon the point of receiving authoritative resolution by the Supreme Court, we entered an order holding the matter in abeyance. The Supreme Court has now acted, Gosa v. Mayden, and Warner v. Flemings decided June 25, 1973, - U.S. -, 93 S.Ct. 2926, 37 L.Ed.2d 873; and we proceed to decision.

The relevance of the retrospectivity issue derives from the fact that appellant, a retired Navy officer, was in 1957 convicted by a court-martial of (1) sodomy, Article 125 of the Uniform Code of Military Justice, (2) conduct unbecoming an officer and a gentleman, Article 133, UCMJ, and (3) conduct of a nature to bring discredit on the armed forces, Article 134, UCMJ. His sentence was dismissal from the Navy and forfeiture of all retirement pay and privileges. Appellant’s repeated efforts to challenge this conviction were unavailing. The advent of O’Callahan in 1969, however, prompted a new effort in the form of a suit in the District Court for a declaratory judgment that his convictions were invalid. On cross-motions for summary judgment, that of the Government was granted; and this appeal is from that action.

O’Callahan held that military personnel could not be tried in military courts for crimes that are not service connected. Appellant’s complaint in the District Court alleged that the crimes of which he was convicted were not so connected, and that, accordingly, O’Callahan required that his convictions be declared void. This claim obviously depended for its force upon the retrospectivity of O’Callahan. But the establishment of that principle is precisely what the petitioner Gosa, whose offenses were stipulated to be not service connected, has failed to achieve in the Supreme Court. Thus, even if appellant could persuade us that the offenses for which he was convicted fall outside the contours of service connection, it would be to no avail. Our giving him, on such a finding, the relief he seeks could not withstand scrutiny by the present Supreme Court.

The other issue raised by appellant has, however, not been foreclosed. As noted above, two of the three charges upon which he was convicted rested upon, respectively, Articles 133 and 134 of the Uniform Code of Military Justice. Both in the District Court and here appellant has contended that these provisions are unconstitutionally vague. That is a claim which, although disallowed by the District Court in both instances, has since been upheld as to Article 134 by this court. Avrech v. Secretary of the Navy, 477 F.2d 1237 (1973), petition for certiorari pending, 41 U.S.L.W. 3674. In that case Mr. Justice Clark, sitting by designation, wrote for the court and reviewed the origins and nature of Article 134, concluding that it is too imprecise to satisfy the requirements of the Fifth Amendment in its employment of phrases like “all conduct of a nature to bring discredit upon the armed forces” and “all disorders and neglects to the prejudice of good order and discipline in the armed forces.”

Avrech is, thus, determinative for us of the Article 134 aspect of appellant’s case. We think its reach inevitably extends to Article 133 as well — a conclusion in which we are buttressed by the recent decision of the Third Circuit holding both of these Articles to be vulnerable to constitutional challenge. Levy v. Parker, 478 F.2d 772 (3d Cir., 1973). The phrase “conduct unbecoming an officer and a gentleman” hardly offers a significant contrast to the generalities of Article 134, at least for purposes of the Fifth Amendment.

The constitutional infirmities of Articles 133 and 134, and the consequent voiding of appellant’s convictions under them, leave untouched his conviction for sodomy under Article 125. This circumstance gives point to Justice Clark’s concluding observation about Article 134 in Avrech, namely, that these general articles are “ . . . a housekeeping device and the specific conduct can be as effectively controlled through the utilization of other Articles of the Code. . . . ” The general sentence imposed upon appellant by the military court (dismissal from the Navy and deprivation of privileges) continues to rest upon the sodomy conviction under Article 125.

The judgment of the District Court is affirmed insofar as it relates to appellant’s conviction under Article 125. With respect to the convictions under Articles 133 and 134, the judgment is reversed and the case remanded with directions that those convictions be declared invalid.

It is so ordered.

      . Prior to Ills military trial, appellant unavailingly challenged court-martial jurisdiction over Mm on the ground of Ms status as a retired officer. Hooper v. Hantman, 163 F.Supp. 437, 442 (S.D.Cal.1958), aff’d, 274 F.2d 429 (9th Cir. 1959). After final affirmance of Ms convictions by the Court of Military Appeals, 11 U.S.C.M.A. 128 (1960), appellant sued in the Court of Claims for retirement pay, collaterally attacking the court-martial’s jurisdiction on the same ground. That jurisdiction was sustained. Hooper v. United States, 326 F.2d 982, 987-988 (Ct.Cl.), cert. denied, 377 U.S. 977, 84 S.Ct. 1882, 12 L.Ed.2d 746 (1964). After the instant suit was filed in the District Court, appellant, in order to exhaust his military remedies, sought unsuccessfully a writ of coram nobis in the Court of Military Appeals. Hooper v. Laird, 19 U.S.C.M.A. (1970).

        . Justice Blackmun’s opinion concluding that O’Gallahau does not operate retrospectively was joined in by only three other members of the Court. However, a fifth member, Justice Relmquist, concurred in the Court’s judgment in Gosa because he believed that O’Oallahm was wrongly decided and should be overruled. Justice Douglas did not concur in the Gosa judgment because he thought that a serious question existed as to whether the principle of res judieata controlled the disposition of the case, and that a reargument should be had on that issue.


author: BAZELON, Chief Judge:

text:
    UNITED STATES of America v. Gilbert M. MORGAN, Appellant.
    No. 72-1639.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 27, 1973.
    Decided Aug. 7, 1973.
    As Amended Aug. 14, 1973.
    Sheldon I. Cohen, Washington, D. C., with whom Herbert M. Silverberg, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

      David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Herbert B. Hoffman, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and VAN PELT, Senior United States District Judge, for the District of Nebraska.

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

   BAZELON, Chief Judge:

Appellant pled guilty to three counts of first degree murder, one count of assault on a member of the police force with a dangerous weapon, and one count of carrying a dangerous weapon. He appeals the denial of his motion to withdraw the pleas before imposition of sentence. We find the record inadequate for proper consideration of the district court’s reasons for denying appellant’s motion; hence we remand with directions for its supplementation.

I

On June 9, 1971 Morgan shot and killed his seventeen year old wife, his seven month old daughter, and his mother-in-law. At some point during the altercation he telephoned the police and reported one of the deaths. When the officers arrived, Morgan threatened one of them with a pistol and retreated into the house, then returned and surrendered.

After his arrest he was taken before a United States Magistrate who ordered him committed to the District of Columbia Jail, with the notation “MPDC HAS ADVISED — DEF. HAS SUICIDAL TENDENCIES.” In a second order, the Magistrate commanded that Morgan be examined by a psychiatrist and that the results be reported back by June 18, the date set for the preliminary hearing.

Immediately upon his arrival at the District of Columbia Jail he was examined by medical personnel and placed in “full restraints” in the jail hospital. The next day a District of Columbia Department of Human Resources staff psychiatrist examined him and recommended to the court that “an extended period of time in a hospital setting be devoted to a more complete psychiatric examination.”

At the June 18 preliminary hearing the Magistrate recommitted Morgan to ' the District of Columbia Jail, noting on the order that the Public Defender counsel “claims no further need for concern about possible suicide by the defendant.” The record provides no information about the basis for counsel’s claim.

On June 25, “upon motion by the defendant for an examination of the mental competency of the defendant,” the district judge ordered Morgan committed to Saint Elizabeths Hospital for a psychiatric examination pursuant to 24 D.C.Code § 301(a) (Supp. V, 1972). The order directed that the examination determine both whether Morgan was competent to stand trial and whether, if the offenses were committed by him, they were the products of “a mental disease or defect which substantially affected his mental or emotional processes and substantially impaired his behavioral controls.”

On September 2, 1971, Dr. Strawin-sky, the Hospital’s acting superintendent reported to the court that Dr. Albert E. Marland, “a qualified psychiatric consultant,” had examined appellant, and set forth the following unadorned conclusions: that appellant was competent to stand trial although at the time of the examination he was diagnosed “schizophrenia, chronic undifferentiated type;” and that “on the date of the alleged offense, he was suffering from a mental disease . . . and the alleged offenses if committed by him, were the products of his mental condition.” No supporting facts or reasoning were included.

Some time in the week following the filing of this report on September 7, Morgan was returned to the D.C. Jail. Within the same week the court granted defense counsel’s uncontested motion to commit appellant to Saint Elizabeths because of “defendant’s suicidal tendencies, and recent suicide attempt at the District of Columbia Jail.” The record does not reflect whether the suicide attempt was made before or after defendant’s initial commitment to Saint Eliza-beths. Nor does it reveal any of the circumstances concerning this suicide attempt.

On October 1, in an uncontested hearing, based on Dr. Strawinsky’s report of September 2, the court found Morgan competent to stand trial. On the issue of responsibility, however, the United States Attorney informed the court that Dr. Marland wished to withdraw his findings concerning mental illness and “productivity,” and engage in further examination. He said:

I have talked to Dr. Marland himself. He has changed his mind — his opinion, excuse me, — he has changed his opinion in the case from what is stated in the letter to “I don’t know,” and “I want to defer my opinion pending, first of all, a complete analysis because of the severity of the offenses in this case,” which was a triple homicide.

The record does not reveal whether, by the time of this hearing, Dr. Marland or Dr. Strawinsky had notified the court that the original report was to be withdrawn or superseded. It would appear, however, that Dr. Marland continued to examine appellant after he was returned to the Hospital on September 13, although the order to return makes no reference to any further examination. In a letter addressed to the clerk of the district court, dated October 14, 1971, Dr. Marland indicated that he had seen appellant “three additional times” and requested “additional time to study him further.” But this letter was not filed with the court until January 31, 1972, ten days after Dr. Marland had filed his second report, in which he found Morgan “without mental disease.”

The U.S. Attorney, presumably purporting to speak for Dr. Marland at the October 1 hearing, told the court that Dr. Marland’s initial examination “was made without any knowledge of the facts of the case except that which the defendant related;” and that the “examination was made by one psychiatrist, Dr. Marland, who visited the hospital on one or two occasions and who has a very busy schedule.” In the very next breath, however, the U.S. Attorney, contradicting himself,- said, “His [Mar-land’s] opinion was based upon statements made to him by a psychologist and by examining psychiatrists.” Shortly thereafter, still at the October 1 hearing, defense counsel indicated that “another Doctor has spoken with Mr. Morgan at least half a dozen times.” This important factual conflict remained unresolved.

Defense counsel then told the court that he had not talked with Dr. Marland and did not “know anything about his withdrawal of his opinions.” He added that, if Dr. Marland “withdraws his opinion in response to a telephone call from the United States Attorney, I don’t know whether he should be the one that does the further evaluation.” The judge responded that he would not “tell Saint Elizabeths who to put on this case” and that:

I gather that the “once over lightly” deficiency has been recognized and Saint Elizabeths is willing to take him back and do a more thorough job.

Defense counsel advised the court that he knew that other Saint Elizabeths staff personnel had interviewed both appellant and appellant’s mother. He then asserted that he thought the first examination “was good” and that he accepted its conclusions. Nevertheless, the court ordered another examination of appellant’s mental condition at the time of the offense; the report to be filed within 60 days.

At the conclusion of the October 1 hearing both parties represented to the trial judge that they would transmit further evidence and information in their possession to the Hospital. On October 18, the U.S. Attorney transmitted some such material to Saint Elizabeths, with a copy to Dr. Marland. In addition, the U.S. Attorney set forth in a five page, single-spaced, typewritten letter, the Government’s version of appellant’s background, the crimes, and the scene of the crimes when the police arrived. The letter concluded:

As you undoubtedly realize this case is one of major significance and interest and we would specifically request that in light of the serious charges involving the death of three innocent people that a very careful analysis be made both as to the existence of a mental illness and the causal relationship, if any, between any mental illness and these offenses. If you desire any further information, please do not hesitate to call and we will be glad to accommodate any such request as soon as possible.

Although the record is unclear as to the nature of the further communications between the U.S. Attorney’s office and the Hospital staff, it does appear that defense counsel heard nothing about the re-examination until December 22, 1971, when the U.S. Attorney informally told him that Dr. Marland might be changing his conclusions. Then on January 10, 1972, the U.S. Attorney handed defense counsel a copy of a letter dated November 1, 1971, which Dr. Mar-land had addressed to the court. This letter was not filed with the court until January 21, 1972, the date on which the hearing to accept defendant’s guilty pleas took place. In this letter Dr. Mar-land completely reversed his former conclusions and opined that appellant had been without mental disease or defect at the time of the offenses. The letter nowhere indicates whether Morgan was administered medication during the time of the second examination as he was during the first one.

Appellant’s twenty-second birthday was February 2, 1972. The Federal Youth Corrections Act, which provides for indeterminate sentencing to special rehabilitative programs, is unavailable to those who have passed their twenty-second birthday at the time of conviction or entry of a guilty plea. Since Morgan was approaching twenty-two, and since the expert opinion on the question of appellant’s sanity made an insanity defense untenable, his counsel advised him to plead guilty to the full indictment, as the Government insisted. The pleas were filed and accepted on January 21, 1972.

Appellant was committed to the Medical Center for Federal Prisoners at Springfield, Missouri, for evaluation pursuant to section 5010(e) of the Youth Corrections Act. The report from Springfield stated that appellant was suffering from “schizophrenic reaction, chronic undifferentiated type,” and advised against a Youth Corrections Act sentence, in part because of the severity of Morgan’s mental disorders.

During appellant’s commitment at Springfield his original counsel terminated his employ with the Public Defender Service and a new counsel was assigned. Faced with an unanticipated verification of the initial Saint Elizabeths report, new counsel indicated to the court that she would like to discuss with her client the possibility of withdrawing his guilty pleas. At this point, the following colloquy ensued:

THE COURT: Do you feel you are in any way bound by the action [former counsel] took since you are employed by the same agency ?
[COUNSEL]: Your Honor, I think each of us operates as an independent attorney, paid by the same agency.
THE COURT: [Counsel], you people play that game both ways. You regard yourselves as independent for some purposes, but for other purposes you can’t represent co-defendants because you come from the same office.
[COUNSEL]: I think that is true of anybody in a law firm, Your Honor, that he is an independent attorney, but had somebody else in—
THE COURT: But an attorney who is associated with a law firm normally regards himself as being bound by the representations made by other people in the same firm.
[COUNSEL]: Your Honor, I also don’t feel that had [former counsel] —or given the fact that [former counsel] entered a plea of guilty on behalf of this defendant that the defendant does not have an opportunity to withdraw that plea under the Federal Rules of Criminal Procedure, Rule 42 [sic]. He does have to make a motion to withdraw his pleas, and the basis for this motion is information that was not available to [former counsel] but became available as a result of the 5010(e) study.
THE COURT: I will tell you what you are doing, you are forcing me to impose an absolute rule in the future that no attorneys be permitted to see the 5010(e) report. That rule is in operation for many of the judges. I am never going to let a lawyer see the 5010(e) report. Up until now I have let them do it, but never again.
[COUNSEL]: I think a 5010(e) report should be considered by the Court like a probation report.
THE COURT: You don’t see that as a matter of right, let me tell you, and you shouldn’t forget it.
* * -X- -X -X *
THE COURT: * * *
And I should tell you now that I will deny any motion for a withdrawal of the plea, and you may have your exception.
[COUNSEL]: May I have leave to file one, for the record, Your Hon- or?
THE COURT: Surely, I assume that this matter will be litigated above and conceivably will take some time.
But I want to state for the record that this is just one more' evidence of what I regard as a lack of responsibility on the part of the Legal Aid Agency. A man makes a calculated decision, being fully aware of the possibility of the insanity defense, to plead, and his course of conduct is repudiated by an associate in the same office on the ground that you operate independently and are not bound by the other’s representations.

Shortly after this colloquy, at the sentencing hearing, the judge again articulated the same rationale for officially denying appellant’s motion to withdraw his pleas. He stated that appellant had made a “tactical choice” to forego an insanity defense and pled guilty so that he could be eligible for sentencing under the more beneficent provisions of the Youth Corrections Act. And that only after his choice did not “pan out” (since the Springfield report recommended an adult sentence) did he deem it unwise. Thus, without giving any consideration to the Springfield report, the court decided to “stand on the record at the time the pleas were taken,” and held appellant bound by his “tactical decision.” Then, on the basis of the Springfield report, the court denied appellant’s request for Youth Corrections Act sentencing and imposed an adult sentence of twenty years to life imprisonment and “directed” that appellant be returned to Springfield “for treatment.”

II

Since the district judge expressly rested his refusal to allow Morgan to withdraw his pleas “on the record at the time the pleas were taken,” we limit our present consideration to that record. We find it barren of inquiry into a set of circumstances that cried out for explanation since they bore heavily on the validity of appellant’s mental examinations, which, in turn, were decisive in his decision to plead guilty. Such circumstances are instanced by the following events. First, on the representation of the U.S. Attorney, apparently without any word from Saint Elizabeths, the court ordered a re-examination of appellant. Then, a letter from the examining psychiatrist, dated October 14, requesting permission from the court to examine Morgan further, was not filed until January 31, after the guilty pleas were accepted. Next, a letter dated November 1, purporting to be the Hospital’s final report, was sent directly by Dr. Mar-land to the court; moreover, the letter was not filed until January 21, the date the pleas were taken, and almost two months after the date set in the court’s re-examination order. Finally, when Dr. Marland submitted a report in direct contradiction to his previous findings, no effort was made to seek an explanation for his change.

These matters raise serious unanswered questions about whether appellant’s decision to plead was materially affected by any of the following:

(1) defense counsel’s failure to seek an independent mental examination, or to interview Dr. Marland or call him to testify ;
(2) the influence of ex parte representations or contacts between the U.S. Attorney or other Government officials and the examining staff at Saint Elizabeths;
(3) Dr. Marland’s failure to file promptly his letters;
(4) the court’s decision to order a re-examination solely on the representation of the U.S. Attorney;
(5) the court’s failure to inquire into the questionable circumstances surrounding the examinations it had ordered.

Sound principles of judicial administration require that we await clarification of these matters, and others that may surface in the wake of their clarification — such as the presence or absence of rules, regulations and procedures designed to safeguard the integrity of the mental examination — before deciding whether the court below properly limited itself to, and properly appraised, the record before it at the time appellant filed his pleas. Accordingly, we remand the record for a thorough hearing in order to fill the lacunae which now exist.

Record remanded for supplementation.

APPENDIX 1: Chronology of Important Dates

1. June 9,1971 — Date of Offense.

2. June 25, 1971 — Defendant ordered to St. Elizabeths for 60 days pursuant to section 301(a).

3. Sept. 2, 1971 — Date of letter from Dr. Strawinsky, Acting Superintendent of St. Elizabeths, to court, regarding Dr. Marland’s findings of mental illness and productivity. Filed with court Sept. 7,1971.

4. Sept. 13, 1971 — Defendant ordered returned to St. Elizabeths because of mental illness, suicidal tendencies and suicide attempt.

5. Oct. 1, 1971 — Competency hearing. Order issued for re-examination on question of criminal responsibility; issued before Dr. Marland’s letter indicating need for additional observation filed with court (see Nos. 6 & 13).

6. Oct. 14, 1971 — Date of letter from Dr. Marland to the court expressing his desire for additional observation. Filed with court Jan. 31, 1972 (see No. 13).

7. Oct. 18, 1971 — Date of letter from U.S. Attorney to St. Elizabeths (copy to Dr. Marland) describing defendant’s background and events surrounding the offense.

8. Nov. 1, 1971 — Date of letter from Dr. Marland to the court describing his final conclusion of no mental illness at the time of the offense. Filed with court Jan. 21, 1972 (see No. 11); given to defense counsel by U.S. Attorney Jan. 10, 1972 (see No. 10).

9. Dec. 22, 1971 — Defense counsel told informally by U.S. Attorney that Dr. Marland planned to reverse his conclusions.

10. Jan. 10, 1972 — Dr. Marland’s letter dated Nov. 1, 1971 (No. 8), given by U.S. Attorney to defense counsel.

11. Jan. 21, 1972 — Hearing to take guilty pleas.

Dr. Marland’s letter dated Nov. 1, 1971 (No. 8), filed with court.

12. Jan. 25, 1972 — Date of letter from Dr. Marland to trial judge explaining that his second report (No. 8), not his first report (No. 3), was intended for court use. Filed with the court Jan. 25, 1972.

13. Jan. 31, 1972 — Hearing at which defendant ordered to Springfield for evaluation pursuant to Youth Corrections Act.

Dr. Marland’s letter dated Oct. 14, 1971 (No. 6), filed with the court.

14. May 22, 1972 — Defendant’s motion to withdraw guilty pleas denied. Defendant sentenced as an adult offender.

      . We do not at this time consider any other questions raised by this appeal, including those relating to the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970).

      . Because of the complex circumstances and confusing sequence of events revealed by the present record, a chronology of important dates is set forth in an appendix to this opinion at pp. 793-794 infra

      . The prosecutor asserted in a letter to Saint Elizabeths, see p. 790 infra, that several suicide notes were recovered from appellant’s apartment and person after his arrest, and that appellant apparently confronted the police in the hope that he could provoke them into shooting him. Moreover, during his incarceration he also attempted suicide, see p. 788 infra.

      . See 23 D.O.Oode § 1303(h)(4) (Supp. V, 1972). Morgan’s examination was ordered pursuant to this statute, although it states that “persons released” shall be assisted in securing “necessary medical services.” [Emphasis supplied.]

      . Five days later the superintendent of the District of Columbia Jail wrote the court:
      In view of subject’s possible “suicidal tendencies” as indicated by the court, and the nature of his charge, I am hereby appraising [sic] the court and all interested parties of what my staff and 1 believe to be a severe need for a period of psychiatric observation in Mr. Morgan’s case.

      . If it appears, from the court’s “observations or prima facie evidence submitted to it,” that an accused “is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him,” section 301 authorizes the court to order him committed to a mental hospital for a reasonable period for “examination and observation and for care and treatment if such is necessary.” 24 D.C.Code § 301(a) (Supp. V, 1972).

      . This was the relevant inquiry before our decision in United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972).

      . Although section 301 specifically provides only for determination of competency to stand trial, we have required that the examination also inquire into the mental condition of the defendant at the time of the offense. See Winn v. United States, 106 U.S.App.D.C. 133, 270 F.2d 326 (1959); Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963).

      . The report, in relevant part, read:
      Dr. Albert E. Marland, a qualified psychiatric consultant, recently examined Mr. Morgan and the following determinations were made. Mr. Morgan has been diagnosed as Schizophrenia, Chronic Undifferentiated Type and is competent for trial by virtue of having a rational and factual understanding of the proceedings pending against him and being able to consult with counsel with a reasonable degree of rational understanding. Furthermore, on or about June 9, 1971, the date of the alleged offenses, he was suffering from a mental disease which substantially affected his mental and emotional processes and substantially impaired his behavior controls and the alleged offenses, if committed by him, were the products of his mental condition.
      He is receiving Triavil 2-25, three times a day.
      We have on innumerable occasions indicated that such reports, containing unsupported “conclusionary labels,” are meaningless for the adversary system. They obfuscate, rather than aid, relevant inquiry. See, e. g., Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967); Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964).

      . See note 9 supra.

      . January 31, which was ten clays after appellant pled guilty, was also the date of the hearing- at which he was ordered to Springfield, see p. 791 infra. The record does not indicate who presented Dr. Marland’s letter dated Oct. 14 to the Court.

      . The second report itself was dated November 1, 1971, and not filed with the court until January 21, 1972, see notes 15-17 infra, and accompanying text.
      Between filing his second report on January 21, and his letter dated October 14 on January 31, Dr. Marland wrote still another letter, dated January 25, 1972, addressed to the court, in which he explained that his “first report” was “a detailed study intended for the hospital file,” and that his “last report was the result of careful study of the man and available records.” This letter was filed the very day it was dated.

      . The report from Dr. Strawinsky, see note 9 supra, nowhere indicates whether anyone else examined Morgan or whether a staff conference was held.

      . The court also indicated that upon reexamination “they [Saint Elizabeths] will probably have a staff conference.” The record does not reveal whether such a conference was ever held.

      . This report, unlike the original one, see note 9 supra, was sent by Dr. Mar-land on personal stationery to the court. Saint Elizabeths filed no report of its own pursuant to the court’s re-examination order; and there is no indication that Dr. Marland notified the Hospital that he filed a report.

      . The only reason indicated in the record for the delay is a statement by the court, on January 21, that “Dr. Marland makes some reference to the illness of a secretary that was the cause of the delay.”

      . The letter read:
      Subsequent to my earlier report, I reread my notes and the indictment and developed some doubts, therefore, I have continued to examine Gilbert Morgan. Upon going over my notes of August 12, 1971, I noted that he denied a previous statement that he was a diabetic but was taking insulin, 5 units, three times a day to kill himself (a rediculous [sic] statement) repeating a trivially small dose.
      He denied he had trouble with other people, had only one fight, later admitted that he had many fights, developed quite a reputation as a fighter, admitted that he had a bad temper and lost it easily. He early denied memory of the events preceeding and surrounding the killings. First refused to discuss many things stating he didn’t remember. He was most uncooperative and then each time I saw him he added a little more information. His early explosive and irratic [sic] conduct in terminating the examinations with me was staged. He talked more freely with others. He was reasonably cooperative with Dr. Bauer, psychologist, and Dr. A. White, staff psychiatrist of the Jail. I requested hn investigation by the social worker, Miss Cooper. She had no difficulty in getting information that he had told me he couldn’t remember.
      With me he kept his voice so low it was, at times, inaudible. He gave much information to the ward physician, Dr. Ceasar, and in a joint session with Dr. Ceasar he admitted to me most of the incidents he previously claimed he had forgotten. I do not believe that he had forgotten. I do not believe that he has any loss of memory or amnesia relating to the events of the crime.
      While he early had very few close friends he had many acquaintances, many girl friends with whom he .had sexual relations, a long stormy affair with his wife prior to marriage, many fights before and after marriage. He was bitter against his mother-in-law for her interference, and as he admitted the tension was building up for a long time. He had many violent scenes with his wife admitting blows at least four times. Remembers he had brooded and thought about using a gun for some days prior to the final incident. He suspected his wife of having a boy friend and knew she intended to leave him. She had previously done so. This time the furniture had been moved. He consistently denied hallucinations.
      Mrs. Harrell, a graduate nurse, reported to me that he has hidden many objects in his room probably to indicate that he might use them in a suicidal attempt.
      He regrets his actions in the shooting, has a feeling of guilt and is quite depressed over the situation in which he finds himself. This depression has occurred since the incident.
      Otherwise I find him without mental disease now and at the time of the alleged crime. He is competent to consult with council [sic] in his own defense.

      . Compare note 17 supra, with note 9 supra. Cf. United States v. Bennett, 148 U.S.App.D.C. 364, 460 F.2d 872 (D.C.Cir. 1972).

      . 18 U.S.C. §§ 5005-5026 (1970).

      . Id. at § 5009.

      . One count of assault with a dangerous weapon was dropped because it was a lesser included offense to the count of assault on a police officer with a dangerous weapon.

      . 18 U.S.C. § 5010(e) (1970).

      . This report described the investigation, and the facts and reasoning relied upon. It included a full medical and dental report, education and intelligence testing and history, social data sheet, an elaborate test report from a clinical psychologist, a lengthy personal report from the chief psychiatrist, and a full staff l-eport with summaries and recommendations. The full study ran to more than 20 pages and took approximately five weeks.

      . Putting to one side the question of whether and in what circumstances it would be appropriate for the court not to allow defense counsel to see the section 5010(e) report, of. United States v. Bryant, 143 U.S.App.D.C. 53, 442 F.2d 775 (1971), it would be a most unfortunate abuse of discretion to refuse to allow inspection in order to prevent appellant from raising valid defenses.

      . On the contrary, we believe it would clearly have been a lack of responsibility, which would liave raised substantial Sixth Amendment questions, for counsel to have done less. See United States v. Washington, 154 U.S.App.D.C. 246, 475 F.2d 357 (1973); United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1972). See generally Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973).

      . Cf. United States v. Chavis, 155 U.S.App.D.C. 190, 476 F.2d 1137 (1973) (remand for inquiry into adequacy of independent psychiatric examination).

      . Lack of adequate procedures may raise issues of constitutional dimension. See Thornton v. Corcoran, 132 U.S.App.D.C. 232, 407 F.2d 695 (1969). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).