James Cooper v. United States of America, Percy Taylor v. United States of America, Frederick Childs v. United States
357 F.2d 274
D.C. Cir.
1966
Check Treatment

*1 Ap- more until pellant’s detailed information juvenile record offender and Appellant appraisal Bondsman’s poor are submitted to risk as to District Court evaluated danger relationship possible

their Ap- community likelihood of the pellant's and the

fleeing in the event of release this, however, Apart on bond. approach

agree Leventhal’s experimenting need for vari- personal as- for release

out devices discrim- end that more

surances

inating procedures de- can be release

veloped. Burger, Judge, Circuit dissented

part. COOPER, Appellant,

James

v. America,

UNITED STATES Appellee.

Percy TAYLOR, Appellant,

v. America,

UNITED STATES Appellee. CHILDS, Appellant,

Frederick America,

UNITED STATES Appellee. 19347, 19340,

Nos. 19348. Appeals Court of

United States District Columbia Circuit.

Argued Oct. 1965.

Decided Jan. Rehearing

Petition Banc En 19,348 Denied in No. 31, 1966. March *2 rights Sandground, Taylor. Washington, Mark tial Mr. B. Childs or We there- by court), (appointed ap- for D. this Rule 52 C. fore affirm their convictions. Philip pellant Am- (a), No. 19340. Mr. W. F.R.Crim.P. ram, Washington, (appointed D. C. charged “While The court court), this was on brief. Cooper as three Hill one n Levy, him, Washington, persons Mr. Joel H. D. C. and robbed attacked who (appointed by appellant corroborating court), of- for no there evidence was Dobin, identify Cooper.” in No. 19347. Mr. Paul Wash- Hill did fered as ington, court), (appointed D. C. were one of three who present rob- was brief. when he was attacked and record, Ias bed. But understand Scanlan, Washington, Alfred Mr. L. D. identify Coop- Hill not did not and could (appointed by court), appel- C. for persons who and attacked er one of lant in No. 19348. Hill “hit from robbed him. Because was Garfiel, Atty., Carol Miss S. Asst. U. him, behind” he did not who attacked see Conliff, Jr., with whom John Messrs. C. and when he because he unconscious Atty. argument, U. S. time robbed was robbed he did not see who Q. Epstein, Prank and Nebeker David him. Attys., brief, Asst. U. S. were on for By identifying as one appellee. Terry, Mr. John A. Asst. U. S. persons present was at- when he Atty., appearance. entered “caught tacked, Hill testified Judge, Edger- Before Chief Bazelon, good Cooper, “just glimpse” fleet- Judge, Senior Circuit and TON, “fleeting BURGER, ing second, all”, or sec- that’s Judge. Circuit onds”, up” “came or “came when by” pennies Taylor, and handed two Judge: EDGERTON, Senior Circuit money begging Hill been for had togeth- “waiving “making hands”, appellants The three were tried blocking robbery. gestures”, er kinds convicted of There was path ample to his car. about 8 evidence that o’clock evening of November someone The court’s that “there was statement violently knocked down Hill one corroborating as to evidence offered robbed while was unconscious. strictly Cooper” was accurate. say definitely” Hill “couldn’t whether he Though Hill no one but by one, two, peo- was attacked or three crime, the scene thought ple, by “ap- he was attacked of the crime were found on fruits proximately people three that were to- that he knew gether, seemingly.” eyewitness No tes- Taylor, Childs and with them soon tified. crime, 8:30, after the arrested at although Cooper girls testified There was evi circumstantial he was with them until two minutes of dence, including possession seem of what 9:00. against ap ed to be fruits of the pellants Taylor. charged Childs and There jury, The court broad- too they ly points out, evidence that were Bazelon the crime you was committed had “ac are *‘[i]f convinced Hill’s iden- just right costed” tification, before it was commit have a to find continued, guilty.” ted. The sus er court “On Although you may hand, yourself tain their convictions. the other ask may sufficiently use of court’s the word “accost” whether identification misleading convincing somewhat been in view of the fact that Hill fleeting contained statements seen mo- evening about the evidence which were strict ment and that ly accurate, fairly we think it clear be error in identifica- way you these matters did not affect the substan- tion. If feel having requir- justified instructions, doubt I find a reasonable guilty.” Rule him not for a new trial under reversal as to 52(b), It the matter. Ped.R.Crim.P.3 think this understates though my me, appears col- presented questions for the Two juror leagues, that a reasonable jury by first, appellant this case: hardly avoid a reasonable doubt Hill, victim, Cooper the third man the *3 Cooper the time of the at second, attack; just saw the before a reasonable and could not avoid Cooper present, participate if did he part he in the crime. doubt that took presence, On the issue of crime. regardless of detailed and the Even Cooper's he tended evidence to show Cooper and consistent alibi crime; but was not at the scene the girls, evi- I think the Government’s two emerged that, just Hill testified after he sufficient create dence stopped liquor from the store and was suspicion, or most a likeli- at reasonable hood, Taylor’s Cooper ap- appellant begging, guilty. Perhaps proached Taylor Taylor two reasonably think the probably he cents. Hill’s identification of guilty, this is not glance, was based a hurried support a I criminal conviction. would unequivocal. direct aside conviction and set present, Even if judgment the District enter the Court to in direct evidence acquittal I think should have which identify the Hill was crime. unable 28 entered the trial. § been at U.S.C. the man or men assaulted who view, 2106. But I am alone eyewitnesses testified. He observed Judge join purposes I for the of decision walking up “quite people a few” ordering Bazelon in a new trial. down the main street front the Nos. 19347 19348 affirmed. liquor store when assault occurred. Taylor Appellant “there testified that Judge BAZELON, (concurring Chief a whole lot fellows on [sic] separate 19347 in Nos. and 19348 with hung street time that around 19340). opinion in No. contradictory There was no store.” Therefore, evidence. since assault Edgerton’s concur place edge apron took on the ap affirming opinion convictions of front of the Hill was store since Taylor pellants 19347 and Childs Nos. struck from behind did not see respectively. evi 19348 While the assailants, pos- we not exclude the against appellant in No. dence sibility that someone other than one of weak, 19340 is I think appellants three assaulted him. “by hair’s to avoid verdict breadth” bystander was a Edgerton acquittal which heightened by participant and not a But closeness of the issue direct.1 “the Taylor fact and Childs * * * obligation imposed an property per- found with stolen on their judge to instruct the with ex appellant sons while none was found on realized, precision, as he and on treme what, to review in a us hand, case, On the other less doubtful would be undue metic was evi 2 scrutiny Upon dence from to infer ulousness.” such 249, States, 60, 67, States v. United 457, United 315 U.S. 62 S.Ct. 1962); Gurley (1942). 254 see also v. 86 L.Ed. 680 States, U.S.App.D.C. 389, 160 United 81 Barry States, 3. See v. United 109 U.S. 229, denied, 837, 331 F.2d cert. U.S. 67 App.D.C. 301, (1961); F.2d 340 Mul 287 (1947). 1511, S.Ct. 91 L.Ed. 1850 States, U.S.App.D.C. len v. United 1, 25, Garguilo, supra (1958); 263 F.2d 275 v. v. note Tatum 2. United States U.S.App.D.C. citing F.2d, of 310 Glasser (1951). F.2d 612 participant or at least an The instructions ended almost immedi- was an active Cooper’s ately thereafter. and abetter the crime. aider payment Tay friend cents to his A trial must exercise signal as a which in lor could be viewed great specific care he summarizes “triggered” since jury, case for Taylor immediately payment after greater required even care is choos go and, Hill that he could after informed taking go es to further and instruct steps, Hill six was struck legal consequences specific evi Also, Cooper behind. company was seen dence. he had Since Taylor approxi and Childs actually been to see unable attacked mately and, fifteen minutes later after him, and robbed first sentence reaching Taylor’s urged home, sister’s quoted seriously above mis hurry “they because had to against appellant stated the evidence *4 4 go.” Cooper, might itself be sufficient 5 ly general prejudicial introductory to call for a new trial. In the instruc- serious, however, tions, correctly Even more is the the trial discussed fact court that, judge when the trial focused atten the elements abetting although tion on the evidence in the discussion was the relevant appellant charged Cooper, to judge Later, the rather abstract. when the trial guilt Cooper’s judge depended solely upon to chose comment on the evidence notwithstanding identification, relating appellant Hill’s he said to the fact only only: identification, believed, that the if place Cooper served to scene Cooper Hill While of the crime. of the three one who at- Cooper primarily on defended Because him, tacked and robbed there was no ground present,6 he corroborating evidence offered as to why perhaps it understandable judge trial failed to instruct Cooper before, specifically respect as I to Now, said as a mat- pres- participation ter was needed as well of law corroboration not re- Cooper’s quired. you participation If ence. in are convinced But being admitted, identification, you in far Hill’s right Thus, Cooper guilty. find On doubt under the evidence. hand, you judge may yourself ask when the trial they told the iden- whether the is suf- could convict on Hill’s identification convincing ficiently clarity appel- tification, view of in fairness judge point required fact that lant out that seen fleeting evening for a moment that identification would establish presence only, there and that conviction would be joined require error identification. If in a belief that he justified way robbery feel that aided in its commission. having doubt reasonable as to objection No was made instruc finding guilty. tion at trial.7 Similar were instructions that, along 4. was arrested in no conceded arresting present, participation and Childs. The officer testi- description Byrd suspects fied that Hill’s crime v. United was established. only Negro light male, skinned, States, U.S.App.D.C. 360, was wearing “a F.2d 119 342 long coat, (1965). black with black 939 * * * pants, face, along and round point 7. The to our was called attention jackets.” with two other males with short appellant’s brief which stated: judge] jury, States, App.D.C. 5. See Blunt v. United 100 [the “He trial told the 266, 276, (1957); English, 244 F.2d the clearest cf. U.S.App. thing they Jones v. United need Hill’s find (1964). D.C. 338 F.2d 553 identification was correct. writing Judge Friendly, for the Court States v. Gar held Garguilo,10 1962)“, Appeals found where guilo, F.2d 249 judge’s initial instruction co-defendant, trial Macchia, was convicted cor- “with entire strong was stated that he had been adequate, counterfeiting have been rectness” “would at the scene excellent, although going on, the usual trial.”11 and knew what judge’s subsequent instruc- But participation weak. the evidence initially held to be defective because judge tion was The trial ‘conscious, abetting.8 solely to the issue Im “related instruction on going intelligent mediately thereafter, awareness what he told the ” linking on,’ to the essen- assuming without that, present at Macchia was participation. The initial counterfeiting, ques tial element the site respect purposive go “with tion was he knew what was whether although correct, participation, not men on. But this time did tion that was essential Once the trial rather abstract.” guilt.9 specific facts of undertook relate that, else, they they finding transactions, without close chía the phere Cooper guilty, conversations, general atmos- jury that, did. He did not tell the know of the transactions to what going identification addition to on? an intelli- Did he have *5 saw, gent, of cor- a man he to be conscious of what was awareness beyond they doubt, going rect a reasonable And he have that on? did beyond find, addition, intelligent conscious, must also in a awareness of what doubt, on, going reasonable that was one con- was it to of the actual attackers Hill and one within the of stitute an or gave you? of the robbers.” I terms definition instance, give you a “For let me charge 8. The stated: example, hap- ridiculous not because it “[A]ny voluntarily person who takes an pened think in this case but because I promoting part fa- [sic] active in help you it will to understand what cilitating commission of a why and is the definition about is objec- knowledge the unlawful with Garguilo important. Suppose took so Villari outside to tive, responsibility un- bears the same car, suppose his directly der commits the law as one who man the back there was a in seat ** the offense he makes [T] *. law up asleep in and all rolled a was fast equally responsible any person who rug head, over or with his overcoat his consciously himself with the associated there, prone body and there is a criminal venture with the intent my pal, my partner, says, he and ‘There is Now, his conduct aids its success. such have my say co-conspirator.’ he Let’s person Mecchia [sic] need used all then he walked those words and in transactions away Villari, Obviously, if this which were in the commission involved asleep wrapped man is and he fast coat or a equally of the crime. He liable if possibly up rug, in he can’t a commanded, requested, find that he have of awareness and sense encouraged, provoked another, or aided participating in the other man’s can’t be planning Garguilo, in in or transaction or statements.” committing However, the crime. it is Upon request, Garguilo in the trial essential that he knew of the criminal repeated general later purpose and intended his abetting, 8, supra, note see accomplishment.” aid in its contrasting hy- gave specific, and then turning knowledge. pothetical continued: cases try give that little bit “Let me a 10. Chief Lumbard dissented point light more in of the facts of this majority opinion part “im- testimony case. There is to the effect enough plies company of that Mecchia was in the conclude that from which the Garguilo printing plant Villari guilty an aider and Macchia abettor.” Dellamonjco. photo studio assuming I am believe now * * quotations in text are found 1 1. All *. there, States v. mak- “Now let us take it 1962). assumptions, Mec- those basic Was right tification, you hypothetical find law, the case illustrations, guilty.” jurors were never er Judge Edgerton say pres me to authorizes mere told words my of the instruc- guilty concurs view on the ence and decision, purposes tions, and for the part would not suffice of Macchia ordering joins trial. they a new also be convinced unless yond Mac reasonable doubt and remanded 19340 is reversed No. something doing for chia was for a trial. new par ward the crime—that knowing merely ticipant rather than Judge (concurring BURGER, Circuit sp dissenting ectator.12 19347 and 19348 in Nos. 19340): in No. Accordingly, held that: the court of the con- in the affirmance I concur Reading can- charge, we the entire I and would and Childs viction judge, that the not overcome a fear affirm the conviction simply by unwittingly quite em- Judge Edgerton reverse the phasis, to be- have led the set him free on as ground finding presence and that a lieve knowledge mind could that no reasonable part of Macchia * * * record; find conviction. and order a new Bazelon would reverse we not think In the usual case should of his view that trial because error in such reversible abetting. inadequate on objec- no when there was submitting Cooper’s I tion, perhaps even if there none, cer- case to the and see However, exceptional been. tainly “plain 52(b), error” under Rule presented, circumstances here Fed.R.Crim.P., in the Court’s light powers under 28 our 2106 and F.R.Crim.Proc. U.S.C. § *6 52(b), the interests we believe that facts is essential A statement justice the Govern- as between gov- my position. At close of the and Macchia served ment will be best against case, ernment’s Cooper by and remand for a new reversal strong substantially as trial.13 defendants, against that except the other two none of the for the one fact that present The in the Hill, victim loot found on him. Here, are even more as in vulnerable. robbery, walk- of the ing testified while evidence of making pur- car back to his after quite There, jury weak. liquor ac- chase at a store he had been specifically told that was suf- costed and detained on the street guilt. contrary, ficient for On the twenty-five Taylor, cents who demanded judge jury: trial admonished the Childs, of him. Hill had noticed whom got You establish that [in- watching liquor him while was in the telligent and, once first awareness] store, Taylor past and Hill and walked that, established then determine wall, Cooper sat on a low then came aided, the extent to which he abetted Taylor, up and offered two cents to encouraged. had reduced demands on Hill to a Here, hand, on the other nickel. Hill it seemed only Taylor saying Cooper misstated the evidence him that knew each Cooper Cooper “Hill one of the other. After made his offer of cents, Taylor go Hill, “you three who attacked and robbed two told can him,” steps but he also instructed the now.” Hill had taken about six “if iden- on are convinced Hill’s hit his car when he was Id., 12. Ibid. at 254-255. behind, unconscious, bery. stopped knocked Hill and One of them had good robbed. Hill had had a look at came detained while the liquor Taylor up; in the Childs store and at he was hit from behind after turn- being ing away walking while detained on the He street. from them and six “caught good steps; also testified testimony of Hill was that glimpse” Cooper only persons offered these three men were the Taylor. present vicinity.

two cents to in the immediate government The necessary introduced testi- It was not to find stolen mony police goods of one of the officers who Appellants in order responded to the within minutes scene Ap- allow to decide that talking robbery pellants and who after robbery. in the If with Hill goods off in drove search men no stolen had ever been recovered description who would match Hill’s testimony if been no about the three him. disposition believed had attacked them, there could well police men, appear- The three go saw whose have been evidence to descriptions ance conformed on Hill’s Thus alone. Taylor, walking Childs, nothing down the fact that was found on significant street. One of the left officers er goods because stolen car and continued his surveillance while were found on the other two. It does transport the other Hill to the went not weaken placing Cooper the evidence waiting Taylor scene. The officer saw the scene of the even if it enter a house and Childs mean, Judges while Edgerton remained All outside. this occurred min- suggest, although Bazelon present robbery. utes after The evidence participate did not in the crime. before the also showed that while However, jurors, that was for the 12 Taylor gave money in the house some appellate judges to decide. money his sister and some a wallet government prove need not nephew, to his that both arrangement “contractual” robbers house, Childs later came into prove for division of the loot or told “to come on be- suggested was shared. It is they go.” Taylor’s cause had to sister merely by- an innocent testified to statement. stander, jurors but reasonable could rea- ar- being sonably thereafter The three men were conclude that his rested, company them once identified of the two on whom loot was had attacked immediately as the three he believed found before and after *7 Taylor police a bottle entry found on him. The attack and his into the house to tell type, quantity, liquor Taylor same ample “to come” was evidence to from Hill part taken brand that had been show his in the crime. As see it Childs tried plainly while unconscious. the trial was correct being money permitting he was hide some as to draw the infer- amount, by police; ence, chose, Cooper’s searched if it conduct together Taylor given his had with what was an indication of his involvement. nephew what was and his sister with By Taylor itself statement Taylor’s nephew wallet, which it was time to leave the house does police to the and which Hill not, course, participant. make him a being his, up precise added to the However, if the chose to believe amount from Hill. taken testimony, could, as it then behind, urging Having depart sup- Hill of er’s been hit from would port person persons participation. a course did not see or At the least, jurors cir- who struck the blow. But all the reasonable would war- finding Cooper ranted in cumstances are warrant rea- such as to an aider believing abettor, Appellants presence sonable which mere men is enough provided participated had in the attack and rob- it is intended to and defendants; applicable primary actors. United to all three aid the does perhaps done in F.2d 249 an abundance cau- States v. require 1962) tion. The evidence did not (dictum). charge since have been by Cooper was The evidence offered inferring warranted in from the evidence negate enough Government’s not that all three took direct roles in the certainly re- not robbery; aiding abetting was not a acquittal. quire verdict a directed necessary guilt. element Nor was making not at This evidence was directed there evidence directed at even in- or that, present, not he did a claim while dicating presence noncomplicity; alibi, by participate proving, an but at aiding abetting not, absence of crime not at scene therefore, theory of defense raised any witnesses, how- time. His alibi required the evidence so to be ex- ever, Cooper walked them plained to the See Womack v. left few minutes be- home and them a U.S.App.D.C. 40, sharp with fore was in conflict F.2d 959 (1964). testimony the officer’s Judges Edgerton precinct been booked at station agree and Bazelon strength- 8:45. These alibi with aiding witnesses me that abetting given ened the Government’s was correct. To assess Cooper, Taylor, impact in- and Childs were light of this deed friends. claims, Bazelon’s necessary it to see it in full: that, con- complaint is Judge Bazelon’s * * * it is the law that in- whole, the sidered as jointly or, more or act aiding and respect says, concert, per- the law each dispute ac- abetting. He does forming part taking step, or charge; abetting curacy parts and all steps or taken asserts it was rather together result the commission of .give an identification crime, equally guilty then all are given. exami- A careful manner it was So, too, person of the crime. if one me convinces nation of abets, is, aids or assists, helps or point of accurate it person another in the commission of even being a model person so favorable abetting guilty completed Appellants defense based their though offense as he had himself them challenging Hill’s identification entirely. committed it challenging the attackers, as the thus Now, course, in order that a grounds any of the case on Government’s person may be found Tay- Only on for reversal.1 now relied theory that he aided and abetted in there lawyers interest showed lor’s another in the of a commission crime being instruc- jointly or that he another, acted tion; Cooper’s was interested counsel he must have to some charges obtaining included lesser *8 extent in the commission of the alibi, identification, realiz- offense, and crime, with the par- intention of so candidly the ing, later stated as he ticipating and with the depends court, “my on the crime that was about to be com- identification.” mitted and partici- in which he was pating. Judge, however, degree Trial The The may abetting be instruction small, and ever so but there must fully Judge robbery instructed Trial elements spelled Since the must be out Byrd even when on elements of the tbe defense is directed at U.S.App.D.C. identification, applicable. is not holding (1965), the stolen had the assailants participation. be as the For tified active strength- arrested

example, property hand is not to con- sufficient Cooper as the abetting identification stitute merely a crime ens Judge Second, Trial may man. have third that a defendant special singling Cooper out for caution- stood and watched the crime com- ary identification —which on mitted being or that he knew that it nothing “his case”— Cooper’s counsel said was committed and did charge had despite the fact about it. He must have contributed already carefully conviction conditioned to some extent and in some acceptance of on three defendants of the commission of the in or- crime theory identification. der to on be [Emphasis aided and abetted it. however, Judge Bazelon, concludes supplied.] charge admittedly on aid- accurate abetting hardly and the favorable possible It to state more clearly when considered presence on identification that mere at the scene undergo mysterious together a support crime could somehow not itself emerge guilty. from a fact, saying transformation In wrong.” impec- “plainly Two participa- “there must be crucible some active wrong— up tion” to one Cooper, Judge to hold instructions add cable the Trial wrong overstated the to boot. Somehow Government’s burden and coun- my thus strike colleagues aided did not combination That Judge posi- admit the Bazelon’s error. It is correctness of sel as ren- rationalizing it, nigh by gyrations suggest, ders I perfect. well tion utterly me, iden- that the elude explaining the elements of After rob- operated so as to vitiate tification Judg-e bery, the Trial summarized the and thus explained evidence “you identity erroneously sole is- rendered right, a are convinced have for the sue identification, to find the defend- corroborating thought guilty, that identi- ants without Even if the issue, evidence,” [emphasis I supplied] do but this fication was error, rationally represent independently cannot read be this fact think said, since, detailed and meticulous instruction as have “participation” just quoted. direct as a evidence to convict Judge moreover, accept, explain participant. went I cannot that there was corroborating had evidence the identification instruction identification stating Baze- to it Childs. After ex- effect ascribed plicitly corroborating that there nowas lon. identification as to charging jury Trial can- a In told the it had things say same time. at the “ * * * right permitted inconsist- accused is Since an may guilty. hand On the defenses, must cover each ent yourself the identifica- whether ask be, superficially, inconsistent. and thus convincing sufficiently tion required to state cannot A trial be the fact that Hill seen view of in a snow- applicable of law rules fleeting moment but for succeeding balling fashion, each so that evening that there including proposition last contains in the identifi- of error hope ones, previous that this will cation.” interpreting preclude overriding It is one as earlier ones. for more last asked logically impossible place physically did not. In the first *9 jury corroborating on rules of law ample all the instruct the com- Cooper. Indeed it defies The at the same time. of of the identification experience and commonsense mon Hill iden- human of the three men fact that two

283 it, majority then, permit- error, to ask now seem I find for no either doing. ting go to be to to the case or in charge, content of which judge of The can direct attention objected challenged never trial only one element case at by Cooper theory this court time; mean does not Judge upon by relied Bazelon judged by iso- effect of a tois plain error. lating parts or more out of context. one abetting charge may The in- All crimes are not committed with the eye “boilerplate” appellate witnesses, deed like seem built-in convenience of few judges deep impression photographed, and make a are and a man less struck down familiarity on them than because from behind some dif- have charges stating ficulty specif- are which made relate which several assail- ically particular being to the case tried felled It is ants him. because-of aspect novelty experience and so have an that centuries of have led the eye. However, systems justice our catches in the court- Common Law to the lay jurors, room permitting hears the entire course of wise component appellate judges, hears the in re- rather than to draw parts lation to the are whole and inferences from facts circumstances equally lay jurors. novel to in evidence and reconcile conflicts in the evidence. Judge conceivably The Trial put abetting charge exercising majority In this case closer fact-finding identification; to the one on functions reserved pages among transcript separate jury and, reversing four things, other parts. Judge failing appellate say pre- Is an re- for court the District quire proximity cisely say closer what review what the record shows he did jury. ground points seems to it the main in a trial? to the relied on argued points represents One these for even reversal another mani- system tendency Our of de- festation Court’s to re- indigents invariably quire merely per- fense for almost a fair trial but a places lawyer appeal a new case on fect trial. A fair trial is sufficient. points 604, the result v. central Lutwak United 344 U.S. frequently 619, (1953). 481, defense at trial are not the S.Ct. L.Ed. 593 points appeal. central especially significant It ended the

feature of the case most favorable to e., “fleeting” i. look Garguilo, United States v. KAUFMAN, Appellant, William 1962), provides support position. Bazelon’s There The McLAUGHLIN COMPANY et al. initial correct and abet- Appellees. ting held to have been vitiated No. 19341. subject; later errors on the same it is Appeals claiming States Court of not a two correct District of Columbia Circuit. charges conflicted, on different matters 5, Argued Bazelon contends in the instant Nov. 1965. jur- case. furthermore, In Decided Feb. ors were at time “told words presence that mere * * * * * *,” would not suffice id. explicitly as the told here.