*1 explanation. And there whether are dif- Anthony WILLIAMS, Appellant, question be a ferences decisional v. importance.6 UNITED America, STATES of Moreover, “the Commission Appellee. explained sim its decision ‘with the No. 18928. through plicity and clearness which a United Appeals States Court of halting impression ripens into reasonable District of Columbia Circuit. spell are left to In the end we certitude. Argued Feb. 1965. out, argue, between conflict choose Decided March 1965. ing We must know inferences. duty before the decision means what Rehearing En Petition for Banc and say it is ours to whether becomes Rehearing before the 17,1965. Petition ” May wrong.’ Agriculture Division Denied Secretary of or United v. (1954). Ct. 98 L.Ed.
S. therefore remand this case fur
We proceedings.7 The Commission
ther appellant’s application
should reconsider purposes of this accordance with
remand. Whatever the Commis action remand, explain
sion takes on it must reasons and do more than
its enumerate differences, any, ap between
factual cases;
pellant and the other it must ex
plain relevance of those differences the. purposes Federal Communi
to the of the Act.
cations
So ordered.
FAHY, Judge: Circuit remanding explanation concur appel- difference of treatment of NBC, reconsideration,
lant
respect participation to the of each in quiz
the television shows.
of antitrust laws certain licensees not appellant’s in this con-
involved case and are, however, so unrelated that I
duet
require
explanation
no further
(appointed by
Mr. Bruce Clubb
E.
matter.
Commission in this
court), Washington,
C.,D.
with whom
Compare
Hopkins,
Yick
Wo v.
the case was
remanded to the Com
L.Ed. 220
apparent
mission because of its
failure
Hornsby
Allen,
F.2d
F.
apply
consistent standards
in a com
Mary
(5th
1964);
Cir.
2d
Carter
parative hearing for a broadcast
license.
Comm’n,
Co. v.
Paint
Federal Trade
Secretary
Agriculture
See also
(5th
1964).
Cir.
supra;
Carter Moun
Corp.
tain
Corp.
Transmission
v. Federal Com
Sunbeam Television
v. Fed
Comm’n,
Comm’n,
eral
munications
Communications
100 U.S.
App.D.C.
734 C., factually Cohen, Washington, The case D. not resemble Mr. does Sheldon I. any Supreme appellant. recent of the Court brief, on for decision
was
the
in which
in
a conviction has been held
Kramer,
U. S.
John R.
Mr.
Asst.
valid
Amend
due to denial of the Sixth
Atty.,
David C. Ache-
with whom Messrs.
right
although
counsel,
lack
ment
the
Q.
son,
Atty.,
and
U.
Frank
Nebeker
S.
prior
of such assistance
to trial has been
Terry,
Attys., were
John A.
Asst. U. S.
variety
held fatal
in a
of
convictions
brief,
appellee.
on the
Illinois, 378
circumstances. Escobedo v.
478,
1758,
U.S.
appeal
without
the trial court was
Affirmed.
judgments of con-
to enter
Judge
BURGER,
(concurring):
Circuit
the defendant was denied
viction because
right
his
to the assistance
constitutional
Appellant Williams makes contentions
granted by
Amend-
of
the Sixth
counsel
I
which
believe deserve some comment
novelty.
ment
The
to the Constitution.
evidence
for no
their'
other reason than
associated with
argument
admitted at the trial and
Williams’
is that because he
his contention
the effect that
line-up,1
was to
present
had no counsel
at the
identifying
previously
had
witnesses
Illinois,
378 U.S.
84 S.Ct.
lineup
police
identified defendant
(1964), requires
L.Ed.2d 977
shortly
testimony
after
commission of the
by
held
exclusion
trial
three wit
of
accused,
appellant,
they
crimes
when
him in a
had
nesses
identified
argued
counsel.
police line-up.
was without
In
it is
effect
co-appellant Vaughn,
Vaughn’s
whose
Williams’
actual
further contention that
order,
by
conviction we have affirmed
Vaughn
be exclud
courtroom identifications must
rejected
“poisoned
v. United
No.
been
ed as
fruit” has
19, 1965,
Payne
by
March
makes a like contention
our decision in
v. United
upon
Mallory
Rule. No Mal
based
294 F.2d
objection
lory
[Mallory
denied,
v. United
cert.
(1961):
1 L.Ed.2d
L.Ed.2d 83
however,
below,
ap-
consequence
accepting
1479] was raised
of
“The
Leigh
pellant’s
none is available here.
would
contention
U.S.App.D.C. 315,
be for-
[the witness]
be
(1964)
(concurring opinion
against
precluded
testifying
F.2d 883
Wright,
ever
J.),
merely
Payne
court,
and cases
therein cited.
he
because
had
Moreover, Vaughn
any
request
police
complied
failed to establish
with the
yet
prerequisite
police headquarters
detention —as
exclu
come to
that he
by
Payne
sion of evidence obtained
illegal
reason of an
rob-
had there identified
as the
Assuming Vaughn
detention.
ber.
a result
is unthinkable.
Such
suppression
testimony
have been under arrest
in accordance
argument, however,
complaining
his
and that
con
witness
resolution,
police,
properly
way
tentions are
here
to control the conduct
disposed
I believe them
administration
or to advance the
justice.”
treatment which follows of Williams’
(Emphasis added.)
Escobedo contentions.
police line-up
joint enterprise
must be
490-491,
police carry
process
out a
inter-
of
right
prior warning
tion without
of his
rogations
eliciting
that lends
to
itself
right
silence
In
counsel.
the
incriminating
statements,
the sus-
Mallory ap
federal courts Escobedo and
pect
requested
and been denied
overlap,
parently
with the former case
opportunity
(along
an
with
to consult
Massiah
v. United
377
201,
1199,
84
U.S.
S.Ct.
246
lawyer,
12 L.Ed.2d
police
and the
have not ef-
(1964)) supplying
possible independent
a
fectively warned him his
of
absolute
only
basis for exclusion
de
of evidence
right
silent,
constitutional
to remain
police
prelim
rived from
conduct
a
after
the accused has
denied
‘As-
been
inary hearing,
Mallory
to which
has no
of Counsel’ in violation of
sistance
application.
Sixth Amendment to
Consti-
tution
state-
and that no
Whatever the
circumstances
an Es-
by
police during
ment elicited
objection, however,
cobedo
it
seems
interrogation may
be used
Mallory
me we must
look to
for
cases
against
guidance.
him at a criminal trial.”
scope
The
of Escobedo
argues
finding
a
of an
and Massiah v. United
U.S.
377
compel
re
(1964),
Escobedo
violation would
embody
approach,
versal because
to counsel
is
seem to
a
limited
more
“jurisdictional.”
argument
focusing
question
admissibility
is based
The
on the
Zerbst,
pre-trial
on Johnson v.
58
304
at
trial of
statements made
(1938).
L.Ed. 1461
That
S.Ct.
82
without counsel. See Jackson v. United
speak
juris
in
U.S.App.D.O. -,
case does indeed
terms of
diction, reflecting
majority
the old idea that
lack
in
which both the
committing
minority
ques
in the
court
opinions
assume the
necessary predicate
admissibility
habeas
tion
one of
of evi
corpus relief,
remedy
sought.
interpretation
correct,
there
dence.
perhaps
If this
is
It has since become clear that the habeas
will at
harmless-error
rule
by
remedy
longer
is no
bounded
tend Escobedo-Massiah
violations as is
jurisdiction concept. See,
g., Fay
e.
Mallory
true with
violations.
Noia,
contrary
L.
true, however,
If the
is
(1963); Note,
upon
Ed.2d
Federal Ha
reversal must follow as of course
Corpus
finding
beas
State Prisoners:
of an Escobedo-Massiah vio-
Principle,
lation,
Isolation
39 N.Y.U.L.Rev. 78
no
such
doubtless
(1964).
right-to
against
The more
recent
would be
absent
the use
found
simply say
preju
proceeding
counsei eases
that no
in
defendant
a criminal
compel
dice need be shown to
reversal
statements
elicited from him without
where there has been a denial of the
counsel. Thus the “Escobedo-Massiah
right.
Alabama,
See,
g.,
exclusionary
e.
Hamilton v.
Rule” would be an
rule of
S.Ct.
in
evidence
Certainly
substance if
in
not
form.
(1961).
development
of the rule of
today supports
along Mallory
But whichever rationale
these cases
lines would
no-prejudice
typical
adequately
they express
rule
case
serve the concern
police interrogation
should
in which an accused
have been
allowed
not be
not,
afforded counsel but was
substitute
a trial.
Mallory;
as that
of counsel
narrower
that of
absence
at the
well be
than
becoming
line-up
post-
certainly
Our
voids a conviction are
it
is
no broader.
conflicting
confusing
commonplace.
Mallory
hard
cases,
Some arise from the
lawyers
though
experience
appointed
they
po
are,
make
that the
court
clear
“interroga
having
diligently
line-up
without
who,
kind of
served
lice
by
5(a),
compensation,
activity proscribed
Rule
later
sub-
tive”
find themselves
jected
line-up
police pro
attacks
is a
to vicious and unwarranted
that the
valid
;
by
failing
line-up
“prim
to raise
is not a
their ex-clients for
cedure
such
by
ary illegality”
point
productive of excludable
some
the “le-
bizarre
conceived
e.g.,
gal
See,
Having
experts”
prison.
“poisonous
found
fruit”
evidence.
indigent
grati-
U.S.App.
Copeland
v. United
client’s sense
incarceration,
1964;
readily
-,
Dec.
dulled
D.C.
343 F.2d
tude
appointed
States, 105 U.S.
some court
counsel find it ex-
Fredricksen v. United
raising
pedient
App.D.C. 262,
protect
Even
including his client. expansion With the indi- enormous gent representation a need comes guidelines protect
some the volunteer
lawyer consideration, who, after de- full cides on a in- course action which his digent opposes. client As it that see
lawyer must be own free follow judgment professional no conscience matter what his client or en- thinks
tirely free to than be withdraw rather compelled to advance absurd nonsen- pain
sical contentions on of a vicious at- jail
tack from the no house. We have lawyers more to ask volunteer stultify prostitute themselves or their
professional standards than we paid lawyers
have to demand that so. do *5 MOCK, Appellant,
Harold L. al.,
U. S. BOARD OF PAROLE et Appellees.
No. 18635. Appeals
United States Court of District of Columbia Circuit.
Submitted March April
Decided brief, pro se, filed a and his
case was treated as submitted thereon. Haugen, Atty., Dept, Bernard Mr. J. Justice, the bar of Dakota, pro vice, by Court North hac special court, leave Asst. whom Atty. Gen. Burke Marshall at time the filed, record and Mr. C. Ache- David son, Atty., brief, U. S. on were Hie sub- brief, appellees. on mitted