author: McGOWAN, Circuit Judge:

text:
    UNITED STATES of America v. Clayborne JAMISON, Jr., Appellant. UNITED STATES of America v. Clayborne JAMISON, Sr., Appellant.
    Nos. 73-1277 and 74-1042.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 28, 1974.
    Decided Oct. 15, 1974.

      Daniel M. Singer, Washington, D. C. (appointed by this court) for appellant in No. 73-1277.
    Thomas Fortune Fay, Chevy Chase, Md., for appellant in No. 74-1042.
    James N. Owens, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Warren L. Miller, Asst. U. S. Attys., were on the brief, for appellee. Harold H. Titus, Jr., U. S. Atty., at the time the record was filed, entered an appearance for appellee in No. 73-1277.
    Before McGOWAN and ROBINSON, Circuit Judges, and WEIGEL, United States District Judge for the Northern District of California.

      Sitting by designation pursuant to Title 28 U.S. Code Section 292(d).

   McGOWAN, Circuit Judge:

The central question presented by these consolidated appeals from the District Court is whether appellants, having successfully sought a mistrial under an earlier indictment for second degree murder, could thereafter be indicted for first degree murder. We conclude that, under the circumstances disclosed by this record, the Due Process Clause stands in the way. Accordingly, and for the reasons set forth hereinafter, we find the indictments invalid and reverse the convictions.

I

According to the testimony of government witnesses, appellants Clayborne Ja-mison, Sr., and his son, Clayborne Jami-son, Jr., spent much of the evening of April 13, 1971, searching for one Paul Willis, whom they accused of having robbed them on two occasions. Two witnesses, one of them Willis’s mother, testified that the Jamisons had approached them during the evening to ask if they knew Willis’s whereabouts, and, brandishing pistols, had stated their intention when they found him to “blow his brains out.” Several bystanders in the cafe where Willis was murdered later that night testified that it was Jami-son, Jr., accompanied by his father, who entered the cafe and, walking straight to where Willis was seated, put a pistol to his head and fired the shot which caused his death.

Indicted for second degree murder and carrying a dangerous weapon, 22 D.C. Code §§ 2403, 3204 (1973), appellants were tried together on June 1, 1972. In the presentation of the government’s evidence, the prosecutor attempted to introduce an oral confession purportedly made by Jamison, Jr., when he surrendered himself to police custody a few hours after the shooting, but this was found by the trial judge to have been illegally obtained and it was excluded. Defense counsel, who was representing both appellants, thereafter made an opening statement to the jury which consisted almost exclusively of an assertion that both appellants would take the stand in their own defense and that their testimony would prove more credible than that of the government’s witnesses. The trial judge immediately called defense counsel to the bench and directed his attention to the Supreme Court’s decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), under which the government would in all likelihood have been permitted to introduce the excluded confession to impeach Jamison, Jr., had he taken the stand. There was a short recess during which defense counsel acquainted himself with the Harris case, of which he confessed he had previously been unaware. During this recess, the prosecutor apparently notified defense counsel that he also intended to offer the testimony of Jamison, Sr.’s wife should the Jamisons take the stand.

Following the recess there was a further discussion at the bench, during which the trial judge commented that if appellants did not take the stand, defense counsel would have to make some explanatory statement to the jury, which might draw adverse inferences from the reversal of strategy. Defense counsel then requested “ten or fifteen minutes” for discussion of the dilemma with his clients. Expressing dissatisfaction with the delay that had already been caused, the trial judge gave defense counsel “five or six minutes” for the purpose. When the court reconvened, defense counsel moved for a mistrial on grounds of “ineffective assistance of counsel.” The prosecutor responded that he was “ready to go to the jury” and “in a real good position,” suggesting also that each defendant be asked if he concurred in defense counsel’s motion. Without elaboration the trial judge asked each appellant if he “agreed with the position taken” by defense counsel. When they answered affirmatively, a mistrial was declared.

Appellants were subsequently re-indicted for first degree murder and carrying a dangerous weapon, 22 D.C. Code §§ 2401, 3204 (1973), to which they took exception. At their second trial beginning October 18, 1972, the government offered substantially the same evidence as it had offered at the first trial. Appellants offered no evidence of their own, and after the dismissal of the dangerous weapon count against Jamison, Sr., a jury convicted them as charged. They now appeal their convictions for first degree murder.

Appellants have between them raised a number of distinct challenges to their convictions: (1) that the earlier trial ending in a mistrial constituted former jeopardy and barred any reprosecution of them for the criminal acts involved in this case; (2) that the double jeopardy clause in any event prevented the United States from reindicting them for a more serious crime than that for which they were previously indicted; (3) that the possibility of being charged with and convicted of a more serious crime on retrial denied the defendants due process in that it placed an “unconstitutional condition” on the exercise of their right to seek a mistrial; (4) that due process requires that the fear of a vindictive charge increase following upon a successful defense request for a mistrial be dispelled by a prohibition of any such increase; and (5) that, in the case of appellant Jamison, Jr., who was twenty years old when sentenced, the trial court erroneously sentenced him as an adult instead of committing him as a youth offender under the Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970). We think the first of these contentions is without merit; and, since we hold that the fourth requires reversal, we do not reach the remaining points.

II

In considering the various ways in which a trial may come to an end prematurely, the courts have largely “declined ... to formulate rules based on categories of circumstances which will permit or preclude retrial.” United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971). In appellants’ case, however, their mistrial falls into that category which has most consistently been held not to bar further proceedings, namely, those mistrials which are granted at the behest of defendants. The Supreme Court has repeatedly held that the Double Jeopardy Clause does not bar reprosecution of a defendant who succeeds in overturning his conviction on appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) ; and it has left little doubt that the same is true of a defendant who succeeds in obtaining a mistrial. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547; United States v. Tateo, 377 U.S. 463, 467-468, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1961). The rule that a mistrial on defendant’s motion generally does not bar retrial is firmly established in this circuit, see United States v. Henderson, 142 U.S.App.D.C. 21, 439 F.2d 53 (1970); Gregory v. United States, 33 U.S.App.D.C. 317, 410 F.2d 1016 (1969); Leigh v. United States, 117 U.S.App.D.C. 315, 329 F.2d 883 (1964), as well as in a number of others. See United States v. Romano, 482 F.2d 1183 (5th Cir. 1973); United States v. Goldstein, 479 F.2d 1061 (2d Cir. 1973); Roberts v. United States, 477 F.2d 544 (8th Cir. 1973) (per curiam); United States v. Pappas, 445 F.2d 1194 (3d Cir.), cert. denied sub nom., Mischlich v. United States, 404 U. S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); United States v. Franke, 409 F.2d 958 (7th Cir. 1969); Raslich v. Bannan, 273 F.2d 420 (6th Cir. 1959).

Appellants argue, however, that the formality of the defendant’s having moved for a mistrial should not be controlling in all cases, and that to consider it so would be to adopt a “mechanical rule” of the kind that the Supreme Court has consistently rejected in this area. Illinois v. Sommerville, 410 U.S. 458, 462, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). To be sure, a judge or prosecutor should not be free to have one trial disbanded and another convened by intentionally committing errors so prejudicial to the defendant that he is forced to seek a mistrial; and, indeed, the Supreme Court has made it clear that in such a case of “judicial or prose-cutorial overreaching,” reprosecution might well be barred. United States v. Jorn, supra, 400 U.S. at 485 & n. 12, 91 S.Ct. 547. See also, United States v. Ta-teo, supra, 377 U.S. at 468 n. 3, 84 S.Ct. 1587.

When exactly judicial or prosecutorial misconduct ceases to be of the kind that may provoke a defendant’s mistrial motion without barring retrial and becomes an “overreaching” we cannot say, but no such question arises in this case. It was action by defense counsel which brought about the need to discontinue the proceedings. It may be that he would not have moved for a mistrial had not the prosecutor threatened to introduce the excluded confession and the testimony of Jamison, Sr.’s wife if appellants took the stand, but we can find no fault with the prosecutor’s making it clear that he would use whatever evidence was legally available to the government. As for the trial judge, apart from acceding to the mistrial motion, his actions were primarily confined to advising defense counsel for his own benefit of the difficulties to which he had exposed his clients in light of the Harris case. Nor do we find that defense counsel was in any way pressured into moving for a mistrial. The judge had not mentioned the possibility of a mistrial before defense counsel moved for one. The prosecutor’s only response to the motion was that he was “ready to go to the jury right now” and “in a real good position,” a reasonable construction of these remarks being that he opposed a mistrial.

Appellants argue, however, that their motion for a mistrial should be judged for its effectiveness in preventing a double jeopardy claim as if i+ were a “waiver” of their constitutional right to have their guilt or innocence determined at the first trial. They contend that under Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and subsequent cases, the “waiver” was ineffective. But we think appellants misconceive the significance of the fact that they themselves, through counsel, requested the mistrial. This fact is not their principal obstacle under the Double Jeopardy Clause because it constitutes a “waiver” in the sense that word is used in Zerbst, but because the policy of the Double Joepardy Clause, weighed as it always must be against the interest of the state in pursuing criminal prosecutions to their conclusions, is simply not thought to require that a defendant be free of further prosecutions when it was he, and not the judge or prosecutor, who sought to have the original prosecution discontinued. When this is true, and there is no evidence of “judicial or pros-ecutorial overreaching,” the central policy of the Double Jeopardy Clause — to protect defendants from government-instigated multiple prosecutions and sentences — is not implicated. See Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

To treat mistrial motions as waivers of double jeopardy protection would be to require among other things that it be established that the defendant himself concurred in such motions, fully comprehending all his alternatives. See Cross v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629 (1963) (defendant must be advised by court of right to be present at trial before he could validly waive that right). Defendant would thus be protected from multiple prosecutions brought about not by the government but by the errors or misjudgments of his own counsel. We think this goes too far, and hence we decline to decide the double jeopardy effect of mistrials by reference to the rules of waiver. We prefer the approach of Justice Harlan, who observed in defense of the principle that a successful criminal appellant may be retried, “ . . .of greater importance than the conceptual abstractions employed to explain the . . . principle are the implications of that principle for the sound administration of justice.” United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). The startling implication of barring reprosecution after a mistrial brought about by defense counsel’s own errors and on his own motion is that the government could irrevocably lose the right to prosecute for a given crime without itself having committed the least impropriety, and with the trial judge having erred only in declining to second guess defense counsel as to the accused’s best interests.

Ill

Although free to reprosecute appellants after their first trial was aborted, the government was not necessarily free to reindict them for a more serious crime than had been originally charged. On the contrary, we have concluded that, under the line of Supreme Court cases which began in 1969 with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969), the reindictment of defendants for first degree murder, absent any showing of justification for the increase in the degree of the crime initially charged, denied them due process of law.

In Pearce the court considered the question of whether a defendant who successfully attacks his conviction but is later retried and reconvicted may constitutionally receive a more severe sentence at his second trial than at his first. The Court rejected two theories by which such sentence increases would have been absolutely prohibited: (1) that successful appellants were thereby subjected to double jeopardy and (2) that the practice denied them the equal protection of the laws. Instead the Court based its decision on the possibility that a defendant might be the victim of “vindictiveness . . . for having successfully attacked his first conviction.” Due process was held to require that such vindictiveness play no part in the reconviction sentence, and was further held to require “that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge.” The Court continued:

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the' original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

395 U.S. at 725-726, 89 S.Ct. at 2081.

The Court has subsequently made clear that the question of whether in a particular situation due process requires such explicit justification for reconviction sentence increases turns on the likelihood that vindictiveness would otherwise play a part and that potential appellants would otherwise fear that it would. On facts which were similar to those of Pearce, the Court in Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), dismissed a cer-tiorari petition partly on the ground that appellant’s counsel stipulated that the resentencing judge was not motivated by vindictiveness. Id. at 320-321, 92 S.Ct. at 1730-1731. But see United States v. Gambert, 433 F.2d 321 (4th Cir. 1970) (Moon explained as merely declining to apply Pearce retroactively). In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the “prophylactic rule of Pearce was rejected because it was thought that the possibility of vindictiveness did not “inhere” in a two-tier system where a trial de novo in a different and higher court could be had by defendant without the assertion of any error. Id. at 116-117, 92 S.Ct. at 1960. During its 1972 term the Court again declined to apply Pearce, this time to reconviction sentences meted out by juries, the likelihood that a jury would impose a sentence increase out of vindictiveness being considered “de minimis.’’ Chaffin v. Stynchcombe, 412 U.S. 17, 26, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).

For a time it was uncertain whether due process required that criminal defendants be shielded as well from the danger of prosecutorial vindictiveness, and specifically from increases in the offense charged. Chaffin suggested that prosecutorial vindictiveness was not to be feared, at least insofar as it might bring about an increased sentence through increased sentence recommendation. See Chaffin v. Stynchcombe, supra, at 27 n. 13, 93 S.Ct. 1977. However, lower courts have generally assumed in the wake of Pearce that it did apply to increases in the charged offense, Sefcheck v. Brewer, 301 F.Supp. 793 (S.D.Iowa 1969) (Pearce prohibits charge increase after withdrawal of guilty plea), though it has on occasion been found either that there was no effective increase in the charged offense, United States v. Farinas, 308 F.Supp. 459 (S.D.N.Y.1969) (no prejudice from division of one count indictment into five counts), or that in particular circumstances the likelihood that such an increase would be motivated by vindictiveness was not sufficient to justify restrictions of the kind imposed by Pearce. United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971) (restoration of original charge after withdrawal of bargained guilty plea “scarcely suggestive of vindictiveness”).

We think the Supreme Court has now settled the question in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), a case involving a two-tier system of criminal trials similar to that considered in Colten v. Kentucky, supra. Defendant Perry was originally charged with the misdemeanor of assault with a deadly weapon and brought to trial in a North Carolina inferior court. Following his conviction he asserted his statutory right to a trial de novo in a higher court, where he was charged with and convicted of the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. The net result was an increase of eleven months in Perry’s sentence. Because it found a “realistic likelihood of ‘vindictiveness’ ” on the part of the prosecutor, the Court concluded that it was “not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him at the trial de novo." 417 U.S. at 28-29, 94 S.Ct. at 2103. We think that Pearce has thus been made fully applicable to the prosecutor as well as the sentencing authority, and, since we see no persuasive distinction between Blackledge and the case before us, we think that a reversal is required.

The government attempts several distinctions of Blackledge. The first is that the increase in charge in that ease was from a misdemeanor to a felony and carried a possible sentence increase of eight years, whereas the increase in charge in the case before us was from second to first degree murder, both of which crimes are felonies and both of which carry a maximum potential sentence of life imprisonment. Because of this difference, it is argued, a “realistic likelihood of vindictiveness” was present only in Blackledge. However, the Supreme Court in Blackledge in no way relied on the fact that the increase in charge in that case was from a misdemeanor to a felony. It referred to the “more serious collateral consequences” of a felony conviction only by way of suggesting that its result in the ease would have been the same had there been no possibility of more lengthy incarceration but only an increase from misdemeanor to felony. 417 U.S. at 28 n. 6, 94 S.Ct. at 2103 n. 6. Moreover, we find ample difference in terms of length of sentence alone between second and first degree murder. It hardly seems an empty threat that the crime with which one is charged may be increased from one carrying a sentence of “life or not less than twenty years,” the prescribed sentence for second degree murder, to one carrying a mandatory life sentence, the prescribed sentence for first degree murder.

The fact that in a particular case the actual impact on the defendant of a charge increase is slight is, of course, not determinative, any more than the fact that a prosecutor may not in fact have acted out of vindictiveness, for the evil to which Pearce is directed is the apprehension on the defendant’s part of receiving a vindictively-imposed penalty for the assertion of rights. Moreover, we would hesitate to distinguish Pearce even in a ease where the only possible prejudicial effect of the charge increase was minimal. The difficulty of drawing the line between those charge increases which do and do not carry sufficient potential impact to require restrictions of the kind imposed in Pearce persuades us that all charge increases should in this respect be treated alike.

The government also attempts to distinguish Blackledge as a case in which the right whose exercise could be chilled by potential vindictiveness was an “absolute” right, whereas the mistrial which defendants sought in this case was within the discretion of the trial judge to grant. However, the right to a trial de novo in North Carolina’s two-tier system is “absolute” only in the sense that the statute providing for a new trial provides that no error need be alleged; it may be that North Carolina could deny such a new trial entirely. Cf. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956). We cannot say that the right to seek a premature end to unfair proceedings is a significantly less important right. Moreover, even if the right to trial de novo in a two-tier system is considered particularly valued because of the likelihood of error in the inferior court, Pearce makes it clear that the exercise of post-conviction rights generally are not to be burdened by the possibility of retaliation.

The question for us, therefore, is whether to differentiate between attacks which defendants make on the fairness of criminal proceedings before and after they are complete. We decline to draw such a distinction, primarily because of its “implications . . . for the sound administration of justice.” United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct. at 1589. Imposing a ceiling on subsequent indictments after reversals but not after mistrials would discourage defendants from seeking mistrials when error prejudicial to them has occurred, whereas mistrials in such cases may represent a significant saving of judicial resources. At the same time it would encourage prosecutorial efforts to “overreach” and induce mistrials on defendant’s motion in exactly the way that the Supreme Court deplored in United States v. Tateo, supra, and United States v. Jorn, supra.

We conclude then that Pearce and Blackledge require restrictions on increased charges after mistrials. This does not mean that a higher charge can never be brought. Such a flat prohibition was explicitly rejected in Pearce, 395 U.S. at 723, 89 S.Ct. 2072, and we do not think that the Supreme Court changed that position in Black-ledge, a case which substantially relies on Pearce. Cf. Blackledge v. Perry, 417 U.S. at 35, 94 S.Ct. at 2106 (Rehnquist, J., dissenting).

The course adopted in Pearce was to require that the appropriate authority, in that case the sentencing judge, justify his harsher treatment of the defendant in a way which negated the possibility of vindictiveness. There is then the question of how this approach is to apply in the context of increases in the charged offense. It would appear that the reasons for such increases, as well as their factual bases, must be made a part of the record at the time the higher indictment is filed with the court. As to what reasons might be sufficient to justify a sentence increase, one such reason was referred to in Blackledge, namely, that the more serious charge could not have been brought when the lesser one was because the elements of the more serious crime were not at that time present, as where the victim of an assault had not yet died, raising the possible charge to one of homicide. Blackledge v. Perry, 417 U.S. at 29 n.7, 94 S.Ct. at 2103. n.7, citing Diaz v. United States, 233 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). See also Culberson v. Wainright, 453 F.2d 1219 (5th Cir. 1972). A second situation, one which we do not think can be sensibly distinguished from the first, is that in which the government through no fault of its own simply does not learn until after the first indictment that the assault victim has died. In other words, a charge increase might in some circumstances be justified by intervening events or by new evidence of which the government was excusably unaware at the time of the first indictment. We do not undertake at this time, any more than did the Supreme Court in Blackledge, to anticipate definitively all those circumstances which might be thought to warrant a prosecutor’s escalation of an initial indictment.

Since this record is devoid of any illumination of the reasons why the first degree murder charge was brought, we can only conclude that the reindictment of appellants for first degree murder denied them due process and that their convictions of that charge cannot stand. In light of our disposition of appellants’ double jeopardy claims, the government is free to institute new proceedings consistently with this opinion. At oral argument we invited comment on the question of whether we might remand with directions to enter convictions for second degree murder. Though we do not doubt our authority to do this in certain circumstances, see Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967), we note that the Supreme Court in Blackledge emphasized that it is the mere bringing of the higher indictment which denies due process, 417 U.S. 31 & n.8, 94 S.Ct. 2104 & n.8. Since we cannot say that the defendant was not prejudiced by having to defend against the higher, illegal charge, we do not think that course is open to us in this case.

The judgment of the District Court is, except for the conviction of Jamison, Jr., for carrying a dangerous weapon, reversed and the case is remanded with directions to dismiss the indictments of appellants for first degree murder.

It is so ordered.

      . It is unclear from the record whether the prosecutor intended to call Mrs. Jamison ! erself or to offer an out-of-court statement made by her concerning her husband’s and stepson’s involvement in the crime. Tr. 25-27. Apparently, he intended to offer the testimony only by way of impeachment of the Jamisons’ testimony, though the record also fails to make clear whether he limited its potential use in this way purely as a matter of tactics or because he thought it likely to be admissible only as impeachment evidence.

      . Appellants’ joint motion to dismiss the indictment for first degree murder was made at the opening of tl.eir trial, two clays after they had entered pleas of not guilty. Fed. R.Crim.P. 12 requires, on pain of waiver, that a motion challenging the indictment be made “before the plea is entered.” It also provides, however, that, “the court may permit it to be made within a reasonable time thereafter,” and though there is some suggestion that the trial judge in this case did not consider appellants’ motion “timely,” Tr. 4-7, we do not consider ourselves barred by such a minor delay from considering such a fundamental flaw in the indictment as is asserted here.

      . Appellant Jamison, Jr., lias raised no objection to his conviction for carrying a dangerous weapon, and we see none. Accordingly, that conviction stands.

      . A claim based specifically on the danger of vindictiveness is suggested by the discussion in the older Jamison’s brief at 47-59. However, it is not clearly distinguished therein from a claim (number (3) in our enumeration) based on the possibility of a charge increase without regard to motivation. Br. appellant Jamison, Sr., at 47-59. AAre regard the two theories as distinct for the reason that, the “unconstitutional conditions” theory seemingly applies regardless of the reason for the increase in charged offense and thus implies a complete ban on such increases, which, as our opinion demonstrates, the vindictiveness theory does not. It should also be noted that neither appellant’s brief did, nor could, draw support from Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), upon which we base our ' result in this opinion. The briefs in this appeal were filed prior to May 20, 1974, when Blaclcledge was decided. Pursuant to our request at oral argument, however, supplemental memoranda have been filed on the question of Blacldedge’s significance for this appeal.

      . Jamison, Jr’s, objections to adult sentencing are, of course, not mooted simply by our reversal of his first degree murder conviction ; presumably he also appeals the adult sentence lie received because of Lis unchallenged conviction of the deadly weapon charge. However, the one-year sentence which he received for carrying a deadly weapon has now been fully served, having run concurrently with his life sentence for murder. No relief would be available, therefore, even assuming that the sentence was improper. Cf. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).

      . United States v. Walden, 448 F.2d 925 (4th Cir. 1971), upon which appellants heavily rely, is distinguishable in this respect. There the Double Jeopardy Clause was held to bar retrial after a mistrial on defendant’s own motion, but on a finding that the judge at the first trial liad invited the mistrial motion and left the impression that he “might have acted sua sponte had there been no response to his invitation.” 448 F.2d at 929. Nor was the precipitating error in that case, allowing the jurors to see the defendants in handcuffs during a court recess, in any way attributable to the defendants themselves. We note also that this decision by a panel of the Fourth Circuit was reheard and reversed by the court en banc, 458 F.2d 36 (4th Cir.) cert. denied, Ard v. United States, 409 U.S. 867, 93 S.Ct. 165, 34 L.Ed.2d 116 (1972), though the reason for the reversal may have been a reluctance to apply the “overreaching” dictum of Jorn retroactively. See 448 F.2d at 928.

      . It is argued that the trial judge in effect forced defendants to move for a mistrial by limiting them to “five or six minutes” to discuss the alternatives. Apart from the fact that the trial judge’s impatience seems entirely justified, a recess having just been taken to allow defense counsel to study tire question, t..ere is no suggestion that the trial judge expected a decision within five minutes on whether to make a mistrial motion, which possibility had not been discussed. It appears from the record, rather, that defendants were simply being asked to decide whether to continue with their defense as counsel had just outlined it. It may well be that if counsel had asked for more time to discuss a mistrial motion with his clients, it would have been granted.

      . Appellants offer several possible prosecu-torial motives for provoking a mistrial and ask us to infer from these a “preconceived plan” to do so. We would be extremely reluctant to draw such an inference wit’.out more direct evidence even if we were persuaded that a strong motive existed to seek a mistrial, and in this case we are not so persuaded. Appellants speculate that the prosecutor wished to increase the indictment and believed that he could do so after a mistrial but not after a conviction; but we doubt that the prosecutor could have been so sure that the outcome of this appeal (prohibiting such an increase after mistrial) would be other than it is. As for the suggestion that the prosecutor wished to strengthen his case and bring it a second time, he stated that he thought himself “in a real good position” at the first trial, and in fact the government did not substantially alter or improve its case when it was brought again four months later. In any event it is hardly the normal prosecutor’s wish after completing the presentation of a patently convincing case to start over in the hope of making some improvement. Appellants also suggest that the prosecutor wished to avert a conviction which he expected would be reversed because of the conflict of interest present in defense counsel’s representation of both defendants. Even if we assumed that the possibility of such a reversal was foreseen, we do not suppose that a prosecutor ordinarily begins to yearn for a mistrial at the first sign of possibly reversible error.

      . Johnson v. Zerbst, supra, which involved an alleged waiver of the right to counsel, defined a valid waiver as “an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464, 58 S.Ct. at 1023. This formulation has been applied in the context of a number of other constitutional rights of criminal defendants. See, e. g., Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (waiver of privilege against self-incrimination); Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (waiver of right to jury trial); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (waiver of right not to plead guilty); United States ex rel. Negron v. New York, 434 F.2d 386, 390 (2d Cir. 1970) (waiver of non-English-speaking defendant’s right to translator at trial) ; United States v. McPherson, 421 F.2d 1127 (1969) (waiver of right to be present at trial); Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965) (waiver of right to exclude illegally obtained evidence). See also Fay v. Noia, 372 U.S. 391 (1963) (waiver of right to assert federal claims in state court). Appellants’ theory is that their constitutional right to complete their first trial could not have been validly waived because they did not know it existed, and certainly did not know that if they did seek a mistrial they could be reindicted for a more serious offense.

      . Though we have not found it necessary in this opinion to reach the challenges which appellants make to their charge increases on the basis of double jeopardy and the concept of “unconstitutional conditions,” we note that appellants in Chaffin made substantially identical challenges to their sentence increases and that these challenges were rejected by the Supreme Court. Chaffin v. Stynchcombe, supra at 23-24, 29-35, 93 S.Ct. 1977.

      . Several courts have simply passed over incidents of possible prosecutorial vindictiveness without discussion of Pearce’s applicability to the prosecutor. See Taylor v. United States, 475 F.2d 1121 (6th Cir. 1973); Percy v. South Dakota, 443 F.2d 1232 (8th Cir.), cert. denied, 404 U.S. 886, 92 S.Ct. 223, 30 L.Ed.2d 169 (1971). On the other hand, the Fifth Circuit held even prior to Pearce that to bring an increase charge in retaliation for a defendant’s seeking federal habeas relief placed an “impermissible burden” on the exercise of that right. Colon v. Hendry, 408 F.2d 864 (5th Cir. 1969).

      . The penalty for the misdemeanor of assault with a deadly weapon, of which Perry was first convicted, was a fine, imprisonment of not more than two years, or both. N.O.Gen.Stat. § 14-33 (b), (e) (1969), as amended, N.O.Gen.Stat. § 14-33 (b), (c) (Supp.1973). The penalty for the felony of assault with a deadly weapon with intent to kill and inflict serious injury, of which Perry was subsequently convicted, was a fine, inl-prisonment of not more than ten years, or both. N.O.Gen.Stat. §§ 14-2, 14-32 (a) (1969), as amended §§ 14-2, 14-32 (a) (Supp.1973).

      . D.C.Code § 22-2404 (1973). See also Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); United States v. Lee, 489 F.2d 1242 (D.C.Cir. 1973).

      . See note 13 supra.

      . There are other distinctions that might be drawn between the right to seek a mistrial and the right to seek post-conviction review. It might be thought that a prosecutor is less likely to wish to penalize a defendant for seeking a mistrial, which results in less of a burden upon prosecutorial resources than does a successful appeal. However, the distinction all but vanishes in a case, such as the one before us, where the prosecution’s presentation was completed before the mistrial was declared. It might also be argued that the undoing of an actual conviction uniquely provokes prosecutorial vindictiveness. If defendant is seeking a mistriak however, there is by hypothesis some error in the trial of which the prosecutor may not wish to lose the benefit. In any case the likelihood of vindictiveness seems if anything greater in the usual mistrial situation than in Blackledge, where the indictment for a felony rather than a misdemeanor in the superior court was easily explained in non-vindictive terms by the fact that a felony charge could not be brought in the inferior court. See Blackledge v. Perry, 417 U.S. at 32-37, 94 S.Ct. at 2105-2107 (Rehnquist, J., dissenting).

      . The majority in Blaehledge explicitly rejected the dissent’s suggestion that Perry’s anee with the restrictions on increased sen-case be remanded for resentencing in accord-tence imposed by Pearce. See Blackledge v. Perry, 417 U.S. at 31 n. 8, 94 S.Ct. 2104, 2108 n. 8 (1974).


source: Caselaw Access Project

author: BAZELON, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America v. Joseph W. BAILEY, Appellant. UNITED STATES of America v. David SLOAN, Appellant.
    Nos. 73-1693, 73-1832.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 3, 1974.
    Decided Oct. 17, 1974.
    Rehearing Denied in No. 73-1832 Nov. 14, 1974.
    Certiorari Denied March 3, 1975.
    See 95 S.Ct. 1350.

      Frank F. Flegal, Washington, D. C. (appointed by this Court), for appellant in No. 73-1693. Donald A. Kaul, Washington, D. C. (appointed by this Court), with whom Alpheus E. Forsman, Washington, D. C., was on the brief, for appellant in No. 73-1832.
    Joseph B. Valder, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John J. Mulrooney, Asst. U. S. Attys., were on the brief for appellee.
    Harold H. Titus, Jr., U. S. Atty. at the time the record was filed and Albert H. Turkus, Asst. U. S. Atty., also entered appearances for appellee in No. 73-1693.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
   BAZELON, Chief Judge.

David Sloan and Joseph Bailey are appealing from a conviction for distributing heroin in violation of 21 U.S.C. § 841(a). Evidence developed at trial indicated that on February 3, 1972 appellants served as intermediaries in a sale of heroin between a government informer and a government agent on the one hand and a narcotics supplier on the other.

During his opening statement at trial, government counsel stated that Mr. Knight, the government informer, had, prior to February 3, 1972, purchased heroin through appellants. Following the opening statement, appellants moved for a mistrial based on this mention of appellants’ prior narcotics involvement. After eliciting from counsel that Bailey’s defense would be entrapment and “purchasing agent” and that Sloan’s defense would be “purchasing agent”, the trial judge denied the motion. He also ruled preliminarily that testimony by Knight as to the previous narcotics offenses would be admissible in the government’s case-in-chief. The trial judge based these rulings on the doctrine that a defendant’s prior offenses can be introduced for the purpose of showing common scheme, plan, intent, motive, identification and modus operandi.

During the government’s case-in-chief, and after a government proffer out of the jury's presence, the trial judge ruled again that Knight could testify to previous narcotics offenses of Sloan and Bailey. Nothing was offered to indicate that either appellant was arrested or convicted for these offenses.

This court has recognized that evidence of a defendant’s prior offenses may be admissible to show factors such as identity, intent, motive and common plan “provided that its probative value outweighs its prejudicial effect.” This proviso demonstrates our sensitivity to thexdanger that such evidence may lead a jury to conclude that a defendant’s bad character or general disposition to commit crimes justifies his conviction for a given charged offense.

This same sensitivity leads us to note two ways in which the danger of prejudice could have been lessened in the present case without in any way restricting the introduction of properly admissible evidence. First, the government should not have mentioned appellants’ prior offenses in its opening statement. Such mention irretrievably puts before a jury the fact that a defendant has been involved in prior criminal activity. If later government efforts to introduce evidence of the prior offenses prove unavailing, the jury is still left aware of these offenses and, even with a cautionary instruction, the chances of prejudice are still significant. On the other hand, the government loses little by delaying its mention of the previous offenses until at least the presentation of its case-in-ehief.

Secondly, the trial judge should not have made even a preliminary ruling on the admissibility of the other offenses evidence in the government’s case-in-chief without requiring a proffer of that evidence out of the hearing of the jury. Such a proffer serves three purposes. First, as with the banning of the mention of other offenses in opening statements, it shields the jury from potentially inadmissible prejudicial evidence. Secondly, it gives the trial judge a basis on which to balance the probative value against the prejudicial effect of the evidence. Finally, it allows the trial judge to probe as to whether it might be more desirable to defer admitting the evidence until the government’s rebuttal.

While these errors are not insignificant, they do not warrant reversal in this particular case. The trial judge’s final ruling as to the admissibility of the other offenses evidence in the government’s case-in-chief was made after a proffer of the evidence out of the hearing of the jury. Moreover, especially given the character of the appellants’ defenses, it was apparently within the trial judge’s discretion to admit the evidence. Finally, the weight of the evidence against the appellants was overwhelming. Both appellants admitted playing a role in the heroin transaction at issue. Their admitted participation in the offense was significant enough to come under the rubric either of distributing heroin or aiding and abetting in its distribution. The purchasing agent defense offered by both appellants, has, since their trial, been found by this court to be invalid. See note 1 supra. Additionally, little evidence of any weight was offered to support a successful entrapment defense.

While affirming these convictions, we stress again that the chances of undue prejudice to a defendant are significant enough that mention of previous offenses should not be made in opening statements and should be allowed into evidence only after being made the subject of a full proffer to the trial judge. In this way, the conflict between the usefulness of such evidence and its potential for prejudice can more fairly be resolved.

      . The source of the “purchasing agent” defense is the reading that was given a now repealed provision, 20 Ü.S.O. § 4705(a), which made it unlawful to “sell, barter, exchange, or give away narcotic drugs . . .” As this provision was interpreted, a defendant could avoid culpability under the statute by proving that in a given sale in which lie was an intermediary he was acting as an agent for the ultimate purchaser rather than as a seller himself. See Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541, 544 (1964), cert. denied, 381 U.S. 920, 85 S.Ct. 1542, 14 L.Ed.2d 440 (1964); Kelley v. United States, 107 U.S.App.D.C. 122, 275 F.2d 10 (1960). It was the contention of Sloan and Bailey that the “j>urehasing agent” defense survived the repeal of 26 U.S.C. § 4705(a) and its replacement by 21 U.S.O. § 841(a), a broader statute which makes it unlawful to distribute or possess with the intent to distribute a controlled substance. While the trial judge did give a “purchasing agent” instruction in this case, this court has subsequently ruled that “purchasing agent” is not a valid defense under 21 U.S.C. § 841(a). United States v. Pierce, 162 U.S.App.D.C. 170, 498 F.2d 712 (1974).

      . United States v. Fench, 152 U.S.App.D.C. 325, 470 F.2d 1234, 1240 (1972), cert. denied, 410 U.S. 909, 94 S.Ct. 964, 35 L.Ed.2d 271 (1973) (emphasis in original); Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113, 1119 (1969).

      . See United States v. Bobbitt, 146 U.S.App.D.C. 224, 450 F.2d 685, 688 (1971); Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113, 1117-1118 (1969).

      . See Awkward v. United States, 122 U.S.App.D.C. 165, 352 F.2d 641, 645-646 (1965).

      . Factors relevant to this balancing include the government’s need for the evidence, Bradley v. United States, supra note 3, 433 F.2d at 1120, the magnitude of the contribution of the evidence toward proving the element in question, id. at 1119, and the reliability of the evidence. McCormick on Evidence 451-52 (1972 ed.).

      . See United States v. Fench, 152 U.S.App.D.C. 325, 470 F.2d 1234, 1240 (1972). Assuming that witnesses are called for the defense so that there is opportunity for government rebuttal, delaying the introduction of evidence of other offenses until that time may allow the trial judge to more accurately weigh the probative value against the prejudicial effect of that evidence. As this court has noted with regard to the role of the prosecution, “[t]he problem [of prejudice] is sufficient . . . for us to note that the prosecution would be wise to preserve . . . evidence [of other offenses] for rebuttal, after the defense case has been sharpened and the judge may therefore more accurately consider the degree of relevancy and the potential for abuse.” United States v. Jones, 155 U.S.App.D.C. 127, 476 F.2d 533, 537 (1973).

      . The raising of the entrapment defense makes evidence of other offenses tending to show predisposition to commit a specific type of crime potentially admissible. See United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Wharton’s Criminal Evidence § 258 (1972 ed.). The raising of the “purchasing agent” defense, see note 1 supra, implies a denial by a defendant that he had the requisite intent sufficient to sustain a conviction for distributing narcotics. Evidence of other offenses can be admitted to rebut that denial of intent. See United States v. Fench, 152 U.S.App.D.C. 325, 470 F.2d 1234, 1240 (1972). Of course, in order to be admissible, the evidence of other offenses must also have more probative value than prejudicial effect.


author: BAZELON, Chief Judge:

text:
    Robert H. MOURNING, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McDonnell Douglas Corporation, Intervenor.
    No. 73-1719.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 16, 1974.
    Decided Oct. 17, 1974.
    Daniel M. Katz, Washington, D. C., with whom Gary Green, Washington, D. C., was on the brief, for petitioner.

      John H. Ferguson, Atty., N. L. K. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., were on the brief for respondent.
    Louis Lieber, Jr., Santa Monica, Cal., entered an appearance for intervenor.
    Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.
   BAZELON, Chief Judge:

McDonnell Douglas Aircraft Corporation fired Robert Mourning on November 15, 1968. Mourning was at that time involved in an organizing drive on behalf of the Air Line Pilots Association at McDonnell Douglas’ Long Beach facilities. On May 9, 1969, within the time limit prescribed by § 10(b) of the National Labor Relations Act, Mourning through his attorney filed an unfair labor practice charge against McDonnell Douglas alleging that he had been fired because of his union activity, in violation of § 8(a)(3) of the NLRA. After an investigation, the Regional Director of the Labor Board’s Office of the General Counsel on August 7, 1969 refused to issue a complaint on behalf of Mourning, stating among other things that the Company official responsible for Mourning’s discharge probably did not know of Mourning’s union activity. Again through his attorney, Mourning filed an appeal from this decision with the General Counsel’s Office of Appeals. On September 22, 1969, that Office denied Mourning’s appeal basically on the grounds stated by the Regional Director. On January 14, 1970, Mourning wrote a letter personally, not through his attorney, to the Office of Appeals castigating the Director of the Office of Appeals for his alleged misdeeds and promising to seek criminal indictments against those responsible for the failure to issue a complaint in his behalf. This letter, reproduced in Appendix I, raised no new issue of fact or law and can hardly be viewed as anything but an angry letter from a disappointed suitor. The Office of Appeals treated this letter as a motion for reconsideration and on January 22, 1970, barely after receiving it, denied this “motion for reconsideration” as not timely filed.

On March 11, 1970, Mourning now through his attorney filed a motion for reconsideration on the basis of newly discovered evidence indicating that the Company official responsible for Mourning’s discharge had in fact known of Mourning’s union activities. The Office of Appeals on June 5, 1970 treated this as a “second motion for reconsideration” and denied it on the basis of the Board’s decision in Forrest Industries, Inc., 168 N.L.R.B. 732 (1967). Two years and four months later, pursuant to Mourning’s further requests through his attorney the General Counsel reopened Mourning’s appeal, reversed his earlier decisions and issued a complaint in Mourning’s behalf. McDonnell Douglas in its answer and motion to dismiss presented to the Administrative Law Judge argued that Forrest Industries had been properly applied by the General Counsel when he had refused to entertain the “second motion for reconsideration.” The Administrative Law Judge rejected this argument but the Labor Board permitted an interlocutory appeal and reversed the Administrative Law Judge, holding that Forrest Industries prevented the General Counsel from prosecuting the case. The complaint was thus dismissed. We reverse and remand to permit the General Counsel to re-file the complaint on behalf of Mourning.

The Board’s decision in this case consisted of two related holdings. First, the Board held that certain amendments to Board regulations issued in March of 1972 which would have permitted Mourning’s “second motion for reconsideration” were not retroactive. Second, and this is crucial to the case, the Board held that the ruling in Forrest Industries required dismissal of the complaint. This second holding is only implicit in the Board’s opinion but nevertheless it is essential to the result since no other basis for dismissing the complaint is discussed in the opinion. The Board’s result must stand or fall on the basis of the ruling in Forrest Industries.

Forrest Industries is a cryptic case considering the fact that it is the only case we have been able to locate and the only case that has been cited to us which permits dismissal of a complaint on the basis of a pre-existing motion for consideration. The two paragraph holding is reproduced in the margin. While the case is far from self-explanatory, we construe it — as did the General Counsel in denying Mourning’s “second motion for reconsideration”, upon which the Board apparently relied in its own opinion — to preclude any second motion for reconsideration. We adopt this construction for purposes of decision and do not mean to approve the rule of procedure it embodies. We do not construe Forrest Industries as establishing a general policy of laches, authorizing three member review panels to dismiss cases whenever the panel considers too much time has passed between the date of the alleged unfair labor practice and the issuance of the complaint.

We refer to this second possible construction because the Board suggests it to us in its brief. However, we cannot permit the Board’s counsel to alter the ground of the Board’s decision. Furthermore, we would not sustain such a construction of Forrest Industries without a more explicit Labor Board statement that such was intended. This second construction alters the apparently well-settled rule that § 10(b) is the only statute of limitations on the issuance of unfair labor practice complaints and installs a general policy of laches. We do not mean to intimate that the Board may not adopt, after full consideration, such a policy of laches. Indeed, the un-conseionable delay in this case is strong evidence that perhaps such a policy is needed. However, we will not presume the existence of such a policy placing the rights of complaining parties on the diligence of the General Counsel without a much clearer statement that the Board so intended.

It follows from the foregoing that the only ground to support the Board’s holding in Mourning’s case is that Mourning had already filed one “motion for reconsideration” when he attempted successfully to persuade the General Counsel to reopen the case on the basis of newly discovered evidence. However, we cannot agree with the Board’s characterization of Mourning’s angry letter of January 14, 1970 as a motion for reconsideration. First, and most important, the letter was from Mourning personally, not from his attorney who had been Mourning’s representative in the proceedings with the General Counsel. The letter was clearly not a thoughtful factual or legal presentation and simply repeated arguments made by Mourning’s attorney in the original attempt to persuade the Regional Director to issue a complaint. Second, the letter did not comply with the Board’s own procedural requirements for filing motions for reconsideration. In particular, the motion was not timely filed and that was the particular ground upon which the Office of Appeals predicated its swift denial of the “motion for reconsideration.” Third, we are very hesitant to attach draconian legal consequences to the ill-considered actions of a layman.- These three reasons together convince us that the Labor Board must be reversed. We do not consider whether any one of the reasons alone would be sufficient to support this result. We furthermore have no occasion to rule on the Board’s decision not to give retroactive effect to its newly promulgated rules on motions for reconsideration.

For the foregoing reasons, we conclude that the Board improperly relied on Forrest Industries in dismissing Mourning’s complaint. We, therefore, reverse the Board’s decision and remand to permit the General Counsel to re-file the complaint. McDonnell Douglas may, of course, move to dismiss the complaint on some ground other than the decision in Forrest Industries, if any such grounds exist.

So ordered.

APPENDIX I

Jan. 14, 1970
Mr. Irving M. Herman, Chief
Office of Appeals
1717 Pennsylvania Avenue, N.W.
Washington, D.C.
Sir:
Re: McDonnell-Douglas Corporation
Case No. 31-CA-1435
Receipt of your letter denying an appeal in the above captioned case is hereby acknowledged.
Your failure to issue a complaint in this case is unacceptable and the case will remain open, and be presented to the N.L. R.B. upon such time as it is re-constituted with personnel willing to enforce the pertinent provisions of the National Labor Relations Act, as amended.
In your letter you stated that insufficient basis existed for a finding that the Company had violated the Act as alleged. You also stated evidence to the effect that I had been previously reprimanded for poor job performance, that my latest wage increase had been an automatic increase, that there had not been a double vacuum pump failure due to overboosting, as determined by the engine’s manufacturer, other than Mourning’s ......etc.
You have apparently accepted the interesting and clever lies concocted by the Company.
I have never been reprimanded for poor job performance.
My latest wage increase was awarded Oct. 28, 1968 and I was terminated Nov. 15, 1968. The increase was MERIT, not automatic, as you stated erroneously.
It is physically impossible to overboost vacuum pumps. In this respect the N. L.R.B. has demonstrated technical incompetence in evaluating evidence.
I am further charging all officials of the N.L.R.B. who had anything to do with this case, with COLLUSIVE OFFICIAL LAWLESSNESS, in concert with officials of McDonnell-Douglas Corporation. I will also ask for criminal indictments, where applicable, against those officials involved.
Very truly yours,
/&/ ROBERT H. MOURNING
By Robert H. Mourning

      . 29 Ü.S.C. § 160(b) (1970).

      . 29 TJ.S.O. § 158(a) (3) (1970).

      . This denial was pursuant to Rule 102.-19(c), 29 C.F.R. § 102.19(c) (1973) which requires that motions for reconsideration be filed within ten days of the decision by the Office of Appeals. The Rule 102.19(c) in effect at the date of Mourning’s “motion for reconsideration”, 32 Fed.Reg. 9548 (1967), and the Rule in effect now both excepted motions for reconsideration on the basis of newly discovered evidence from the 10 day requirement. This proviso does not apply to Mourning’s letter since the letter did not raise new issues of fact or law and presented no new evidence. While the letter did discuss factual matters not raised in Mourning’s original appeal through his counsel of the Regional Director’s decision, see Appeal of Regional Director’s Decision Not to Issue Complaint, Mourning v. McDonnell Douglas Corp., No. 31-CA-1435 (N.L.R.B. filed Aug. 22, 1969), reproduced in Joint Appendix at 7-8, those factual matters had been considered by the Regional Director, since the Office of Appeals considered those matters in deciding to uphold the Regional Director’s decision. Letter to John P. O’Brien from Irving M. Herman, Director of the Office of Appeals, Sept. 22, 1969, reproduced in Joint Appendix at 8-9.
      Mourning’s “motion for reconsideration” also appeared to be inconsistent with another provision of Rule 102.19(c), that motions for reconsideration state the alleged error with particularity. It is virtually impossible to tell exactly what error Mourning perceived in the General Counsel’s original refusal to issue a complaint. He did attack three apparently factual determinations by the Regional Director but nowhere argues that these factual errors, if errors they be, were otherwise sufficient to justify issuing a complaint. Indeed, it would appear that the Regional Director’s determination that the Company official responsible for Mourning’s discharge did not know of his union activity is sufficient ground for the Regional Director’s decision. See NLRB v. Lexington Chair Co., 361 F.2d 283, 291 (4th Cir. 1966); Local 728, Teamsters v. NLRB, 131 U.S.App.D.C. 195, 403 F.2d 921, 923 (1968), cert. denied, 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1970). In any event, Mourning’s own attorney did not feel tlie factual issues discussed in Mourning’s petition were worthy of reconsideration since the appeal lie filed did not re-open those issues. In short, the substance of the letter had only the most tenuous connection with the Regional Director’s refusal to issue a complaint.

      . McDonnell Douglas Corp., 202 N.L.R.B. No. 65 (1973).

      . Rule 102.19(c) was amended in March of 1972 to permit a second motion for reconsideration based on newly discovered evidence. See 37 Fed.Reg. 4911 (1972). The Board considered this a modification of Forrest Industries but held that the modification was not retroactive.

      . Some flexibility of procedure is necessary to achieve the ends of justice under the Act and to afford parties full opportunity for submission of all evidence and arguments. But it is also important in the administration of the Act that procedural remedies be deemed exhausted at some point and a case closed.
      We have considered all the circumstances in this case, including the allegations of the complaint, the nature of the materials offered to support a second motion for reconsideration more than 3 months after the first such motion was denied, and the General Counsel’s reversal of action on such basis approximately 6 months after the second motion for reconsideration was filed. It is our view, upon considering all these circumstances, that the General Counsel’s rejection of the first motion for reconsideration was dispositive of this proceeding and, in any event, that it will not effectuate the policies of the Act to proceed further in this matter. Accordingly and without reaching the merits of the unfair labor practices alleged, we shall dismiss the complaint in its entirety.
      Forrest Industries, Inc., 168 N.L.R.B. 732 (1967) (emphasis added).

      . Letter to John P. O’Brien from Irving M. Herman, Director of the Office of Appeals, June 5, 1970, Joint Appendix at 15-16. Of course, we note that the General Counsel may reinstate a complaint where his original action in dismissing it was erroneous. See J. A. Bentley Lumber Co. v. NLRB, 180 F.2d 641, 642 (5th Cir. 1950). To the extent the Board’s opinion in this case is a simple reliance on the General Counsel’s erroneous view that Forrest Industries required dismissal of the complaint, it cannot stand once the General Counsel perceived his error and reinstated the complaint.

      . See SEC v. Chenery Corp. (I), 318 U.S. 80, 92, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

      . See Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565, 568 (2d Cir. 1967), applying the dictum in NLRB v. Katz, 369 U.S. 736, 748 n.16, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The Board’s attempt to distinguish Bryant Chucking Grinder, Brief for the NLRB at 10, n.2, is wholly unpersuasive since the case did not rely on lack of prejudice to the charged party hut rather reached the result it did in spite of prejudice to the charged party on the basis of a finding that Congress in § 10(b) was not concerned with that prejudice.

      . § 10(b) puts a statute of limitations on the actions of the charging party (six months) and not on the General Counsel. The view we take of Forrest Industries also places the rights of the complaining party on his oten actions and not the actions of the General Counsel. To permit the General Counsel to negligently cause the elimination of the charging party’s rights would raise very fundamental questions about the nature of the chai'ging party’s “rights” upon suffering the effects of an unfair labor practice and the nature of the General Counsel’s prosecutorial responsibilities. We certainly will not wade into that deep water without a clearer statement that the Board has fully considered these difficult issues and has given us the benefit of its expertise.

      . See note 3 supra.

      . See Love v. Pullman Co., 404 U.S. 522, 526-527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Gibbs v. Burke, 337 U.S. 773, 779-781, 69 S.Ct. 1247, 93 L.Ed. 1086 (1949). We note that the Board itself purports to give a “liberal construction” to its own rules. See 29 C.F.R. jj 102.121 (1973). We, of course, have no objection to the Board treating letters such as Mourning’s as “motions for reconsideration” when such treatment will not injure the movant’s lights.

      . See note 5 supra. We would have a serious question about the Board’s decision in Mourning’s case that Forrest Industries is inconsistent with the new Rule. Forrest Industries did not, as far as we can tell from the published opinion, involve a motion for reconsideration on the basis of newly discovered evidence. The Rule in effect at the time of Mourning’s “second motion for reconsideration” treated motions on the basis of newly discovered evidence differently than other motions for reconsideration. This is consonant with the rules applicable to motions for new trials. See Fed.R.Crim.P. 33; Fed.R.Civ.P. 59(a). Since the Labor Board, as other administrative agencies, has no particular expertise in the area of fair procedures, cf. Ridge Radio Corp. v. FCC, 110 U.S.App.D.C. 277, 292 F.2d 770, 772 (1961), we would not be averse to a complete examination of the advantages and disadvantages of the Board’s retroactivity decision, if such were necessary to decision.
      We furthermore do not intimate any opinion on the other arguments advanced by Mourning relating to a claimed infringement, on the General Counsel’s statutory prerogatives, except to state that these arguments are basically not relevant to this appeal.