*1 COX, Appellant, Jr., Earl French America, STATES
UNITED Appellee. 71-1384.
No. Appeals,
United Court States Fourth Circuit.
Argued Dec. 1972. Jan.
Decided
Joseph Forer, C., Washington, D. court-appointed counsel, appellant. McNamara, Atty. Thomas P. U. S. (Warren Coolidge, Atty., F. H. U. S. Atty., Clarke, Stuart Asst. U. S. brief), appellee. HAYNSWORTH, Judge,
Before Chief BRYAN, BOREMAN and Senior Circuit Judges, WINTER, CRAVEN, and' RUSSELL, BUTZNER, WI- FIELD and Judges, sitting DENER, banc. Circuit en Judge: HAYNSWORTH, Chief panel divided A Court concluded: defendant That hearing before to a limited entitled *2 Attorney jurisdiction try juveniles, General could direct that he courts have adult, youths proceeded yet as an who have not their attained eighteenth birthdays. Under 18 U.S.C. having That, been tried as juvenile charged A. a fed- with a adult, a the Federal sentence punishable by eral offense not death or mandatory, Youth was imprisonment prosecuted life shall be the trial court found that unless juvenile delinquent, a consents to derive offender “will not bene- procedure Attorney and unless the from treatment” Act. fit under that expressly General has directed that he petition rehearing banc A en prosecuted as an do not adult. We rehearing, granted and, after an en banc problem judicial have the of waiver of agreement majority of a the Court is in primary jurisdiction juvenile of a dissenting panel with the of the member jurisdiction general court of a point majority first and with the trial court. What is deci- involved is a panel of the on the second. charge opinions Judge The of Winter for the juvenile a delinquency with Judge Bryan in dis- Senior upon alleged based violation of the appended, sent are and the reader is re- proceed against ju- law and to him as a to them for more ferred a detailed state- venile, charge or to him as an adult with exposition of ment the facts and of the transgression the substantive of the law. legal issues. Judge Bryan points out, As a prosecutorial beyond decision the reach I process rights of the due of counsel and hearing. a who was then seventeen old, four companions, each of whom When the is one of passed eighteenth birthday, jurisdiction waiver of robbed a bank in North Carolina. and it is to be decided a wrote to the At- juvenile court, juve it is clear that torney General, requesting permission to hearing ques nile is entitled to a on the try Cox as an adult offender than tion of waiver assistance juvenile. reported He there hearing.1 counsel in that pending charges against Metropolitan C., Washington, D. entirely This consistent with our area, including charge a of armed rob- judges tradition that the decisions of charge bery, housebreaking judicial proceedings affecting substan- charge attempted larceny of an auto- rights persons charged tial with crim- reported mobile. He information only inal violations shall reached aft- Cox was the leader of the band and that' er an is afforded for full supplied it was he who the automobile hearing and fair with the benefit going fleeing used in to the bank and counsel. from it. no such tradition with course, In due spect prosecutorial decisions to seek authorized and directed the United indictment, one, or not to seek proceed States charge, make or not to make a however, stating, charge greater or a lesser one. offense Attorney might wish to impact Such decisions have a substantial suggest to the Court a subsequent proceed- on outcome the Youth Corrections Act. ings. Indeed, they may foreclose such system they In the no federal there proceedings, but are left for deter- separate prosecutor courts. The district mination without States, 84; Kemplen Kent v. United 383 U.S. 16 L.Ed.2d v. State of Maryland, Cir., 428 F.2d hearing any Many protections and without extension Rights beyond process protections other due Bill extend far the person degree guaranty exposure courtroom, course, of ex- whose hearing process prosecution prosecutor de- posure to found in the due charge tra the Fifth has termines. The decision to Cox clause of Amendment ju- ditionally judicial rather than limited to with bank *3 proceedings. just prose- quasi-judicial delinquency a It has never venile is such applicable processes of held to the cutorial decision. decision-making.2 prosecutorial true, course, that, the de- of from It is only proper question here, therefore, is viewpoint, effect and con- the fendant’s sequences general statutory is the scheme whether prosecutorial decision constitutional, Congress whether reason conse- as the effect and the same are General, ably might Attorney in vest the judicial waive quences a of decision judge pro judicial in rather than a in a judicial juvenile jurisdiction in a deciding ceeding, responsibility the of system provides such courts. prosecute juvenile as whether or not a appropriately an adult. That is consequences a decision the of To affirmatively. answered robbery prosecute rath- him for bank juvenile delinquency the are er than same, of The reasonableness of the allocation remaining whether, the within Attorney is this function statutes, of framework the federal by provisions reinforced of Gener- is made decision pro- Youth Corrections Act.3 That Act by a prosecutorial al function as a special vides treatment and rehabilita- judicial judge Effects function. youths un- tive measures for sentenced consequences, however, not are it, youth early may der earn of the Bill of sole measure Rights. reach conditional and unconditional release. proceedings must Judicial Significantly, 5021, uncondition- under § process, due clothed in the raiment of confinement, parole or al release from processes prosecutorial deci- while the probation expiration before of the maxi- garb. sion-making very wear different operates automatically mum term to va- thing have, hold, It is one we as youth’s cate the conviction and clear when state makes a waiver mea- criminal record. substantial function, jurisdiction judicial court’s a sure, therefore, judge, convic- after defendant must cast about the tion, infor- when he has the benefit trappings process, but all of the of due pre- mation disclosed the trial necessarily does not it follow reports, may sentence youth extend con- or the state gain many stitutionally question as treat the basic advantages he have derived high- prosecutorial function, making initial de- from linquent. treatment as a ly respon- placed, prosecutor supervisory extent, To that a decision deciding proceed sible for whether to proceed General to it an adult. If final, spe- adult has, does, char- as the United States cial treatment as a proceeding, acter of its earn his crimi- rather than who a clearance of largely pre- consequences accused, remains nal record an available rights. This was determinative ferred alternative. proceeding, identity consequences That is not nec- the status the criminal essarily held to counsel the reach of he was unentitled determinative protections confrontation time of one-on-one constitutional is illustrated adversary Kirby Illinois, it occurred before U.S. S.Ct. since process Kirby, begun. 32 L.Ed.2d 411. To criminal consequences identification seq. regardless victim were the same 5005 et 3. 18 Ü.S.C.A. explicitly in the mind (b) treatment under subsection * case, for, directing * *” (c) proceeded against that Cox be Ordinarily, in the absence of an ex- suggested a sentence plicit finding effect, to that we would Youth Corrections Act. implicit imposition treat conditionally some other sentence autho- 5010(d). Here, rized however, in II postconviction proceeding, the Dis- time, Court, In this for the first Judge explicitly trict said he had made defendant contends that finding referring no such and, to the pro- direct decision to adult General’s legislative thought history, none ceedings against un- reviewable quired. In his view the Youth Correc- der the Administrative Procedure Act.4 provides only tions another sentenc- The claim of of discretion rests abuse pref- alternative with no conditional *4 primarily upon General’s erence over other alternatives. In this assump- in to an reference his decision case, therefore, implicit we cannot find co-defendants, unfairness tion in finding what did a he ex- passed eighteenth of whom each plicitly disclaims. against birthday, proceeded they ju- as adults while treated as a Cox was language We think the delinquent. venile plain. statute is The Youth Corrections sentencing Act must be used unless the Aside from the fact these judge finds that treatment under questions in were not raised the District Act would not be beneficial. That find Court, we need not consider upon reason, though should be based reviewability Gener the reasons stem from such various exercise of the discretion the al’s statute sources as trial, disclosures at in vests him. Unfairness to co-defend demeanor, defendant’s and attitude in- ants irrelevant consid been an presentence report formation in a and eration, but the fact that was close sentencing during revelations hear eighteen, the nature the crime and ing. implication When of such presence charges of other serious v finding, negated upon reason, based against any judicial him find foreclose judge’s declarations, the trial im ing of There abuse discretion. position general as, upon inappropriateness no in the adult, is unwarranted. General’s conclusion that Cox should be proceeded leaving finding, explicit The absence of such a for later determination the sentenc implicit, requires in re- this case ing judge the extent to which he should mand with directions that the District powers exercise broad him Judge explicitly or not find whether the Youth to treat Cox treatment the Act would bene- youthful offender. ficial Should he find that Cox. be,
would not he state his rea- sons, but leave sentence undisturbed. III Should find that Cox benefit majority A of the en banc court treatment under he should agrees panel with the vacate the sentence and recall Cox for provides pre Youth Corrections Act resentencing under the Act. sentencing ferred alternative which used in must be Remanded with directions. unless, language of § 5010(d), Judge, “the find Chief HAYNSWORTH, court shall BRYAN, Judge, offender will not derive benefit Senior Circuit seq.
4. 5
et
U.S.C.A. §
Rockville,
Housebreaking
CRAVEN,
and WI-
1.
RUSSELL, FIELD
Judges,
Maryland.
concur
DENER, Circuit
opinion.
foregoing
I and II
Parts
Tampering
with automobile
Washing-
larceny,
attempting grand
HAYNSWORTH,
Judge, BORE-
Chief
ton, D. C.
Judge, and WIN-
MAN,
Circuit
Senior
robbery.
3. Armed
CRAVEN, BUTZNER,
TER,
RUSSELL
investigative
report
further
Our
Judges,
join
FIELD,
in Part
Circuit
five defendants
all
flects that
foregoing opinion.
III
approximately
case are
this
age.
particular
defendant
same
This
APPENDIX
instigator
appears
to have
Opinions of
Panel
subjects
robbery.
other four
subject
college
fur-
students. The
nished the car which was used
Judge:
WINTER,
robbery.
Circuit
consulted
bank
We have
Officer
with our Chief Probation
presents
two issues:
This
agreed
in-
we have all
it would
petitioner,
seventeen
who was
Was
equitable
try
this defendant
deter-
old when
try
the others
adults.
proceeded
mined
he be
incarcera-
he be convicted the
Should
juvenile,
enti-
than as
adult
*5
period
his
tion
be limited
would
“hearing” when
and to a
tled to counsel
birthday.
21st
likelihood
all
made,
(2) If
and
the determination
far
other defendants would receive
granted
so,
be
now
what
relief
lengthier
do
think
sentences.
not
We
rights
denied?
The
those
since
part
this
be fair in
of the
right
view
that
court concluded
district
by
played
in
bank
this defendant
relief
did
attach and denied
not
counsel
robbery.
2255,
we con-
U.S.C.A.
Accordingly, we re-
clude otherwise.
respectfully request
We
that we be
judgment
the case
verse the
and remand
try
subject
as
adult.
allowed
an
proceedings.
for further
July 8, 1968,
Department
On
replied, directing prosecution of
Justice
I
pos-
suggesting
as an adult and
Cox
Jr.,
Petitioner,
Cox,
and
Earl French
sibility
his code-
Cox and
up
companions
in
held
four
a bank
fendants
the Youth Corrections
5,
Carolina,
Goldsboro, North
on June
reply
The
read :
Act.
1968,
$7,752.
escaped
All five
and
Bu-
forty
the Federal
minutes later in the
obtained
were arrested
Investigation
report
February
getaway
in this
reau
car.
was born
12,
matter, dated
1968 which re-
old
June
and he was seventeen
together
subject,
time
offense. His code-
flects that
at
of the
5, 1968,
youths
eigh-
age
four
on
over
June
fendants were all over
Banking and Trust
robbed the Branch
teen.
Company,
Williams
Street
North
On
United States
June
gun point.
Branch, Goldsboro,
Department
of Jus-
wrote
subject
Wash-
This
from the
who
try
requesting permission
tice
Cox as
advise,
you
ington,
has,
D. C. area
juve-
an adult
instead of as
charges
against
pending
in-
him
nile. The letter stated:
tampering
housebreaking,
cluding
grand
attempted
Information
before us is that
and
with automobile
subject
Washing-
robbery.
residing
larceny
has been
fur-
and armed
C.,
the.following
Cox,
ton,
appears
subject,
D.
area and has
ther
charges
pending
him:
the car
furnished
used
ring
quences
consent,
particular
and was
leader
the enter-
of such
prise.
by
constitutes a
waiver
trial
jury.2
juve
If the district court finds a
out-
of the
situation
In view
factual
delinquent,
nile to be a
5034 fixes
you
hereby authorized
lined above
penalties
imposed.
may
which
The
be
proceed
directed to
Earl
juvenile may
placed
probation for
Jr.,
under adult criminal
French
period
exceeding
minority
not
procedure
Bank
for violation of the
custody
committed to the
of the Attor
2113(d).
Robbery Statute, 18 U.S.C. §
ney
(but
period
General for a like
not
you
appropriate
At
time
exceeding
might
term
im
suggest
these
to the
wish
posed had he
tried
convicted
youths be sentenced under the Youth
adult).
custody
If committed
Corrections Act.
Attorney General,
of the
au
the latter is
statutory
generated
scheme which
designate
pri
any public
thorized to
exchange
correspondence
agency
vate
or foster home for
cus
briefly
by
stated
reference to various
tody, care, subsistence,
education
sections
Title 18
Section
U.S.C.A.
training
juvenile during
peri
“juvenile”
person
5031 defines a
od
which he is committed.
eighteenth
who has not
attained
birthday
“juvenile delinquency”
At the time that the
At-
torney
violation of a law
the United States
obtained the authorization
punishable Attorney
proceed against
committed
General to
imprisonment.
death or life
represented by
Section
Cox was not
given
then directs
counsel. He was not
notice
request
of the United States Attor-
alleged
A
to have commit-
ney
granted,
was made or
and was
one or
ted
more acts in violation of
no
to controvert
the data
punisha-
law
considered
General or
imprisonment,
death or life
ble
*6
might
advance other
support
data which
a
not surrendered to the authorities of
juvenile proceedings. While the ex-
state,
proceeded against
shall
a
be
as
change occurred,
away
Cox was
delinquent
juvenile
to
if he consents
custody.
know,
home and in
didHe
procedure,
such
unless the
informed,
and had not been
that
had
General,
discretion,
he
express-
in his
has
right
proceeded against
ju-
a
to be
as a
ly directed otherwise.1
venile unless the
di-
juvenile
be
In such event the
shall
rected otherwise.
against
proceeded
by information and
prosecution
no criminal
insti-
shall be
July 12, 1968,
On
Cox’s mother
alleged
tuted for the
violation.
represent
tained counsel to
Cox
him.
July
and,
waived formal
indictment
By
provisions
5033 district
§
1968,
plea
guilty
he entered a
ato
courts
are vested
charging
criminal
information
he
against
jurisdiction
proceedings
and four codefendants
committed an
juvenile delinquents.
proceedings
The
armed bank
in violation
18
non-jury
juvenile’s
consent
2113(d).
U.S.C.A.
and
Cox
each
required by
required
giv-
to
5032
be
his four codefendants were
to
sentenced
writing
en in
before a
dis-
imprisonment
judge,
apprise
juve-
for a
trict
term of
who must
fifteen
rights
nile of
provisions
his
the conse-
and of
under the
of 18 U.S.C.
requirement
“juvenile”
1.
impair any right
.
.
The
that a
con
ute
. does not
to
proceeded
being
“ju
jury
against
sent
to
op-
a
trial.
It affords a
portunity
delinquent”
to choose his forum.”
venile
Cotton v.
was written
into
States,
(8
United
446 F.2d
110
anticipate
Cir.
problem
to
statute
of a
1971).
defendant’s
assertion
his constitutional
right
jury
See,
supra.
to a
trial.
“The federal stat-
n.
juvenile,
par-
effective,
4208(a)(2).
in oral
his
were
sel
that the
We
told
A. §
given adequate
argument
codefend-
of Cox’s
must
each
ents and counsel
released,
proceeding,
has
but
of the nature of the
notice
has now
ants
charges
custody.
date
to be consid-
its
and
remained
ered,
they might
so that
reason-
have a
prepare
present
to
and
able
II
juvenile’s
We
to waiver.
determination
contends
found
reached these results
we
because
and
States
United
very
Kemplen
a
waiver was
proceed against him
stage
against
proceedings
critical
in that
as an adult was unconstitutional
(and
him, inasmuch
he could receive
(1)
he lacked
of the decision
at the time
receive)
prison sen-
in fact did
an active
not advised that he
counsel and was
tence,
than commitment
right
counsel,
was
the decision
training
rehabilitation, he
school for
proc-
due
not made
ess,
accordance with
permanent
would have a
criminal record
arbitrary
(3) the decision was
and
moreover,
and,
conviction as an adult
his
capricious.
The first two facets
triggered
proceedings
commitment
recent deci-
this contention rest on our
Maryland Defec-
under the
him
Maryland,
Kemplen
v.
State
Delinquency statute,
autho-
tive
which
1970).
(4
strict
making
juveniles
cross-examination,
tion,
termination of which
More
offenders.
transcript,
Durham be treated as adult
Caulder v.
etc. Cf.
998,
over,
only
which have
Authority,
cases
Housing
F.2d
1004
two
433
problem
treated a
denied, 401
have
U.S.
dealt with
(4
cert.
1970),
n. 3
Cir.
Attorney
1228,
as ab
539
General
1003,
L.Ed.2d
decision
28
91 S.Ct.
v. United
suffi
and final. Ramirez
(1971).
to us that
it is
solute
It seems
F.Supp.
(S.D.N.Y.1965);
request
States,
copy
238
763
cient
F.Supp.
Verra,
Attorney
Attorney
87
v.
203
United States
Attorney
supporting
(S.D.N.Y.1962).
General,
Gen
data
But
agency,
juvenile, his
eral is an
actions
is furnished
reasons,
they
g.,
attorney,
reviewable, e.
parents,
Carlson
his
are otherwise
540,
Landon,
524,
given
addi
to submit
342 U.S.
be
v.
;
Attorney
Littel v.
cf.
to the
L.Ed. 547
tional data
96
1971).
(4
why
juvenile proceeding
Morton,
would
Cir.
F.2d 1207
445
show
pro Although
5032 is
appropriate
an adult
discretion under
than
his
be more
legislative
service,
course, upon
ceeding,
broad,
reference
histo
right
Attorney
ry
that he must
and his
the statute shows
conflicting
in
inter
proofs
received
balance the sometimes
rebut. These
regard
juvenile,
formally
strict
ests of
is best for the
to the
what
without
apparent possibility
evidence, provided
successful
mate
rules of
rehabilitation,
If
with the interests
soci
riality
maintained.
and relevance are
ety
protection.
present
and future
in
data
considers
Cong.,
Sess.,
S.R.
85th
3d
June
request
support
United
considerations,
together
1938. These
fur
than
States
performs
quasi-
with the
that he
fact
latter,
such data
nished
judicial
making
function in
a determina
juvenile and
also
known to the
be made
5032, persuades
tion under
us that his
op
representatives,
and the same
decision is
to Pre
reviewable. Citizens
portunity
these
to rebut
data should
Yolpe,
serve Overton Park
U.S.
afforded.
If
General con
L.Ed.2d
S.Ct.
grant
request
United
cludes
(1971).
Attorney, he should
in
States
state so
therefor;
writing, assigning he reasons
rehearing
Kemplen,
petition for
On
ju
copy
and a
should be
to the
remedy
proper
we said that “the
for this
representatives,
venile and his
as well
petitioner
.
.
. will be the recon-
Attorney.
to the United States
Maryland courts,
struction
fail-
ing that,
District
the United States
Ill
bearing
Court, of the
circumstances
general
Having
problem
decided the
question
the waiver
and a determination
significance,
pro
we come to the
nunc
tunc of
court
what
specific
light
probably
relief which should
done
have
granted to Cox. The district
con-
of all
the information then available
authority
might
prof-
cluded that
it had
reasonably
review that
by competent
General’s decision under
fered
counsel.” 428 F.2d
*9
Act,
the Administrative Procedure
and
at
if
178. We added that
the court
correctly
inappropriate,
think
so.
we
The APA does
found that waiver was
adult,
Kemplen’s
from
should be vacated
arises
these facts: When
conviction
being
because,
(July
1968),
released,
was sentenced
he
Cox
should be
Kemplen
only
twenty-one,
could not be
reached
seventeenth birth-
over
day;
consequently,
juvenile.
if
not
But
the court
if
treated as
tried as a
appropriate
when
he fell within the definition
found the waiver
notice,
“youth offender,”
e.,
person
made, despite
counsel and
i.
“a
lack of
age
twenty-two years
and re-
under
the
should stand
adult conviction
conviction,”
time of
within
lief should be denied.
meaning of the Federal Youth Correc-
propriety
Here,
think the
we
tions
and he
entitled to the
light
waiver,
of the circum-
the full
benefits
that Act.
18 U.S.C.A. §
which were
stances
considered
5006;
seq.7
et
Sec-
§§
U.S.C.A.
considered,
might
been
which
sentencing
prescribes
tion
al-
by
Attorney
redetermined
ternatives
under
the Act:
subsection
regard
due
to fifth and
General with
(a) permits
imposition
suspension
rights.
The issue will
sixth amendment
placement
or execution of sentence and
July, 1968,
not,
Cox
or
as of
be whether
youth
probation;
offender
not
fit candidate for
was or was
(b) permits
subsection
procedures
rehabilitation
established
youth
custody
offender
to the
of the At-
Congress
juveniles
for
treatment
torney
period
for
General
not exceed-
society
and whether
the need
years
four
unconditional
present
protection from
and future
years,
lease
than
not later
six
lieu of
date, outweighed
as of
the benefit
period
imprisonment
otherwise
might
from such
accrue
provided
law;
(c)
and subsection
Attorney
treatment.6
If
General
permits sentencing
youth
offender
not
concludes
waiver would
custody
granted,
conviction
have been
Cox’s
period
provided
law,
if
otherwise
dis-
should be set aside and he should be
youth
the court concludes that
of-
charged without
retrial
he is
since
may
fender
derive
maximum benefit
twenty-one;
now
he con-
over
years,
from treatment within six
cludes that
still have
waiver would
conditional
release not
later
than two
granted,
Cox’s conviction should
expiration
before the
of the term
stand.
In the latter event
the district
imposed.
5010(b)
A sentence under §
resentence
If the At-
court should
Cox.
(c)
special youth
is to a
torney General should decline to make
institution,
treatment
5011. Section
§
redetermination,
then it should be
5010(d) provides
alternative
another
made
And if the
the district court.
5010(a),
(b)
(c), and
it states:
Attorney General redetermines
that Cox
adult,
should be
as an
his deci-
treated
“(d)
the court shall
Jf
find
be reviewed
APA for
youth offender
will
derive benefit
possible abuse of discretion.
Littel v.
(b)
treatment
subsection
Morton,
Cox was sentenced intention of Con- accordance with the an adult treated as he was cause gress underlying statutory provi- years. the term of fifteen to a sentenced ”, at Like . . F.2d . 437 sions District the In cases recent two implications Ward, the which can that under “§ held Columbia has Circuit ex- from the failure to make an drawn affirmatively 5010(d), court must the plicit finding in this are too uncer- youth not will find that tain for us to that there was conclude treatment be- rehabilitative benefit from implicit finding would not that Cox ben- can be sentenced fore the offender Act, efit from under the es- ” v. Wa- . United States adult . . pecially found when the district court U.S.App.D.C. ters, F.2d 437 141 finding. that it made no Accord- Ward, v. (1970); United States 724 ingly, require we will be resen- U.S.App.D.C. 992 454 F.2d 147 properly tenced if it is determined that agree (1971). these decisions We juvenile. he not be treated Of as a them. to follow and have concluded course, resentencing, dis- unless evidentiary trict court has firm base court the district In the instant ease on which to conclude that he not finding not Cox would made no youth benefitted from treatment under of- treatment as a benefit from Act, Cox should be resentenced un- fender; motion under and when on der the Act. find- absence U.S.C.A. § warranting urged ground was relief, found as fact the district court IV sentencing Petitioner, that “[i]n urged argument, counsel us to oral finding no that Petitioner court made pending pro- further release Cox on bail under from treatment would not benefit ceedings in the district court. think We rejected specifically Act],” [the request properly di- more should be ground holding on the of Waters rected in the first instance the dis- legislative history Act made it court, ample authority, trict which has clear Act intended was discretion, grant it. its remove the discretion of district Reversed remanded. or not sentence a con- whether victed offender under the stat- BRYAN, governing ute or under the ALBERT V. Senior Circuit offense Judge (dissenting):
Act. today I would affirm. The legislative Irrespective history, of Kemplen Maryland, F.2d looks to language quite specific. of the Act is (4 justification 1970), Cir. finding youth requires of- that a Actually, reversal. for me that decision fender will benefit treatment case; does not touch the instant the district before completely its determinant divorces “may” sentence adult. appel- There, from consideration here. agree language in Waters already court, lant was before Court District does “[w]hile court, prosecutor, not the was called 19-year-old have discretion to upon appropriate to decide the most fo- ‘youth appli- offender’ either rum for the trial. The statutory provision cable offense or the purely judicial required and counsel was Youth we believe this develop most defendant’s advanta- discretion is find- circumscribed geous course. ings of fact individual case which opposite Judge required Just obtained here. Un- District to make Kemplen, explicitly like implicitly,” either accused was not before F.2d making No the court. court was deci- District Court “[w]hile regard Appellant as to his welfare. com- discretion sentenc-
345
Attorney-
(1970),
plains
722,
of an act of
725-726
those
ac-
decisions
inherently
knowledge
step
within
that
their exactions
both
General —a
“implicitly”.
prerogative
Here,
satisfied
the sentence
the Execu-
exclusive
explicitly
of the District Court
demonstration
tive
branch
Government
“finding”
conclusively implies
by Congress.
that
authorized
“will not
benefit from
defendant
derive
trespass upon
Judiciary
The
cannot
treatment”
the Act.
legitimate province
of the Executive.
interjects
The
Dis-
cases,
any,
prose
Which
are to be
Judge,
trict
2255 memorandum
§
cuted,
where,
questions
exclu
opinion
February 16,
stated
sively
within
latter’s
Even
domain.
finding
made no
that Peti-
that “[he]
returned,
after
an indictment
is
tioner
not benefit from treatment
would
court cannot force it to trial
day
under the
Act”. On
prosecute
Government’s decision not to
—July
30, 1968 some two
and 7
Cox,
all.
United States v.
342 F.2d
judge rejected
earlier —the
coun-
months
(5 Cir.),
denied,
167
cert.
381 U.S.
request
specific
sel’s
consideration
(1965).