Leroy Barnett v. Charles M. Rodgers, Superintendent, D. C. Jail, Carl H. Clark v. Charles M. Rodgers, Superintendent, D. C. Jail
410 F.2d 995
D.C. Cir.
1969
Check Treatment

*1 expected rationally weigh very thing conse- tention the that was criti- the quences law, relationship cal the conduct. under the [Footnote insanity accused’s addiction to de- omitted.] fense.3 Freeman, United States v. (2d Cir.). the

The omission of instruction

jury addition narcotic consider men-

combination other evidence disease,

tal sponsibility, on the issue of criminal imprisonment ef-

leaves if had

fective whereas the instruction given, might hospitalization have been , Leroy BARNETT, Appellant resulted. course; cannot be certain guidance jury needed the but the RODGERS, Superintendent, accused, M. jury and Charles the the Jail, Appellee. D. C. community were entitled. by True it is the instruction offered CLARK, Appellant, Carl H. acceptable was not defense counsel point up, had the terms. But it did evidence, RODGERS, Superintendent, Charles M. ad- the relation the admitted Jail, Appellee. D. C. insanity. In- diction deed, defense Nos. neg- entirely did not the trial court Appeals United States Court of problem by lect the created use District of Columbia Circuit. drugs; jury for it it could instructed the of- consider at the time of the whether Argued 28, 1968. June charged using drugs. fense defendant was Decided Feb. point, But this meet real did not itself, addiction which was that the drugs time, particular use of at the by jury in com- could be considered men-

bination with evidence of deciding disease, in crim- tal issue of responsibility.

inal generally high quality

The otherwise mat-

of ter, does not instructions cure me, per-

as it nor seems to does the opinion in

suasiveness of the court’s demonstrating possibility

jury bridged gap on basis general language quotes; the court language jury’s at- call did not requested requested 3. An instruction defense instruction concluded: counsel, accurately while not aimed Xou are further instructed suggest subject, considering it: did to what extent defendant’s theory defense narcotic addiction was a mental abnor- question, mality, you may the time of the crimes consider the causes of suffering defendant was an ab- from his addiction: whether his addiction voluntary mentally normal condition the mind called act personality person disorder, schizoid normal or whether it was the abnormality person suffering underly- this mental was associated act of ing abnormality. with another abnormal condition body, namely both mind and narcotic This was followed a citation of Heard. States, addiction. [Heard v. U.S.App. United D.C. 348 F.2d 43.] *2 III, ROBINSON, W. SPOTTSWOOD Judge:

Circuit issue The basic before us degree to which officials of the Dis constitutionally trict Columbia Jail *3 dietary compelled to accommodate the faith in the bill of laws Muslim the Muslim inmates. fare afforded question judicial a matter of con became appellants, cern when Muslim jail,1 complained of the menu there in the pro petitions essentially similar se for corpus Dis filed the writs habeas Citing prohibi the trict doctrinal Court. religion against the con tion of their swine, alleged sumption appellants their re authorities had denied fed, quest least, one full-course “be at. pork-free day diet once and three coffee daily.” Proceeding obviously on times the Free Exercise First Clause the Amendment, sought direct order ing superintendent jail2 to the dietary respect, extent, to that Muslim provision in the their tenets meals or, alternatively, directing George release O’Donoghue and Messrs. Ross ground custody (both ap- on the con Washington, C., Fisher, D. A. existing tinued terms confinement court) appellants. , pointed for punish constituted cruel and unusual Sutton, Corpora- Asst. David P. Mr. ment. Columbia, for District of tion Counsel Duncan, T. whom Messrs. Charles with initially The District Court dismissed Pair, Counsel, Corporation Hubert B'. hearing. ap petitions On without Counsel, Corporation Principal and Asst. peals brought here, we vacated orders Barton, Corporation Asst. Richard W. dismissal, counsel, appointed re brief, appellee. Counsel, for were on manded to the District Court the cases remand, hearing.3 Following for Tamm Before McGowan, Robin- Court, motion, appellants’ Judges. District son, Circuit (1967 ed.), 16-1903, litigation, it During Code §§ both of this the course ju enough our will be time consider appellants from the transferred corpus if operated by risdiction in habeas and when penal facility Dis to a remedy becomes Department consideration of necessary. of Corrections trict’s Virginia. Lorton, time for the But since pray petitions being treat Appellants’ petitions were filed while 4, infra, injunctive relief, see for ers superin- appellee’s predecessor was still appellee concedes for and since counsel When, during jail. tendent of may returned to the be proceedings course of the Richey jail, moot. are not these cases remand, appellee succeeded to Court on 1964); (2d Wilkins, Cir. F.2d automatically office, became sub- he Vallee, F.2d v. La Pierce respondent. stituted as the 25(d) (1). F.R.Civ.P. although, 1961). (2d because And litigation pendency and the Preston, 20,577 (D.C. corpus, No. prayer Barnett v. habeas alternative Preston, 22, 1966); ques Clark v. Cir. Nov. legality transfers of these 1966). 20,145 (D.C.Cir. (a); Nov. F.R.App.P. No. tioned, D.C. 23§ see ap- petitions and, as alternative ies inspecting recent menus treated them, plications or habeas cor- the chief for mandamus steward ad- consolidated, objection, pus and, that five of mitted the meat courses hearing. weekly in the most recent menu them con- tained hearing evidence at Uncontested Appellants’ also testified witnesses scope established the and strictness pork prepare eating used to such items injunction Muslim came, hamburgers, loaf, chili con meat testified of swine. A Muslim minister gravies non-pork meats. served with absolute, that the and extends ban is deny Appellee’s this, but admit witnesses prepared pork products and to all all food that beside in its more obvious Muslim Another derivatives. forms, present in macaroni and a life interdiction “is testified “ *4 cheese, dogs, cold-cuts, hot and various depend or f death our lives [I] matter.” The cooked luncheon meats. chief stew- it,” pork.” explained, he “we can’t eat pork ard stated that used to is season however, discloses, sharp The record green vegetables, half about of the as evidence board conflicts in the as beans, tomatoes, onions, well as stewed prisoners unwilling par- to available to told, and other side dishes. All it was witnesses, pork.5 Appellants’ in- take of said, perhaps all two-thirds of the meals cluding inmate worked a former who had jail pork served at the contain or foods kitchen, in to an ex- testified pork pork, with cooked and no substitutes are tensive inclusion offered. pork fare. meats would have “[W]e maybe times,” witness or six one five While the Court District made no said, pork-free specific “before we had a meal.” finding regard, this evi- jail’s disagreed, chief steward as- pork pork dent derivatives serting that of the main served dishes eventuate in some form in a substantial week, supper during lunch and a provided number the meals inmates at n typically only about jail.6 two contain Moreover, appellants complain however, Appellants, subpoenaed cop- they had ostensibly not eat all of in Fulwood testimony by the course followed expert additional witness- Clemmer, F.Supp. (D.D.C. v. es, necessary. if 1962). Long Parker, F. Injunctions v. their custodians un- (3d 1968); 2d Cir. Walker der U.S.C. § 1343 and 42 U.S.C. § 1983 Blackwell, (5th 360 F.2d Cir. prisoners are also available to in the cus- 1966). explain litiga appellants tody As their Department of Corrections. tive desires: Pegelow, (4th Sewell 291 F.2d 1961); Sard, Cir. Edwards Appellants a seek declaration (D.D.C.1966) ; right in, Banks v. Have- their believe and to adhere to from, ner, (D.D.C.1964). to, religion, We their the constant appellants’ accommodate challenge desires to to their Muslim commitment remedy encountering procedur- presented by the Jail’s use extensive simply by treating pe- al difficulties pork making up, preparing, or meals. titions, present purposes least, for accomplished any This can be one of injunctive prayers relief. ways. See Rob- several can done directing appellees erts of a writ take to 1963). specified immediately action to allevi- * * * jail’s ate situation. Alterna- population 5. Of the inmate of 764 at tively, could be remedied hearing the situation remand, the time of the appellees prepare ordering a to set as Muslims but from 40 recorded insti- for issuance to all to 100 of directives attended Muslim services. pris- instructing record all personnel discloses that not Muslim to tutional them formally reasonably oners declare their af- inmates furnish Muslim jail authorities, * * * to filiation Perhaps this balanced diet. simply appellants’ Testimony declare Court could chief steward es- January, Dis- tablished to month of case and remand approximately work out the details trict received pounds 5,850 pork products among specific order the aid writ or * * * provided prepared they at the al- Jail cannot non-pork because dishes given special they pork-free. with no consideration ways are ascertain any prisoner denomina- pork Many in covert contain of the dishes conclude, however, that this forms, do not tion.” menus disposition they into account they failed to take identify,7 if did and even highest ap- factors relevance generally posted in areas knowing pellants’ constitutional claims. We ac- Not have access. they cordingly servings bring, the dismissal orders will future reverse what containing appealed remand cases anticipate cannot a meal previous by filling up proceed- all-non- the District Court for further items ings. meal. their case-in- rested When granted chief, de- the District Court I The court motion to dismiss.8 fense starting point Our teach population of inmate found that “[t]he ing of Cantwell v. Connecticut11 that Jail is fed well Columbia the First Amendment diet,” and that balanced and wholesome refraining appellants may “by from eat- concepts, “embraces two —freedom ing things ob- consider those believe and freedom act. The first *5 religion.”9 jectionable practice but, things, their is in the absolute nature of The diet “[t]he court found that second cannot be. further Conduct re 7,166 provisions. compares diet, pork, with is to be of then ev- pounds liver, ery pounds beef, prison of beef other 483 of inmate of the would 1,832 pounds veal, pounds of of chick- entitled 554 be to the same consideration. en, 1,100 pounds of fish and undescribed For instance of the Jewish period. during particu- di- The Muslim the same faith would have to have their injunction requirements etary observed, to also extends certain lar of diets and fish, any types religious the result that rec- with sect had diet who requirements, they were ord is unclear whether would have to have any partake met, apparently of the or all fish. free to theirs and from the ev- idence here is no there discrimination great- apparently problem be 7. The would any practiced. pro- kind is The diet partially prepared meats made with est special vided and consideration is no vegetables pork with seasoned from and any prisoner in shown connection with pointed steward chief with religion food, as to so I will dismiss out, however, content of petitions here. they vegetable are is obvious when dishes strips Appellee appel of braised not seasoned does contend that bacon. religion faith is not a lants’ within First hearing, of the conclusion At protection. Amendment Havener, See Banks v. stated: court 4, 234 men have vio- are who [Petitioners Clemmer, supra 4, Fulwood laws and who are the criminal lated Compare Cooper prison of that violation. because now Pate, 546, 1733, 12 L. S.Ct. U.S. prison goes for a violation one When (1964); McGinnis, Ed.2d Sostre v. liberty laws, is the criminal 906, (2d Cir.), F.2d cert. de curtailed, necessarily and reason- nied 379 U.S. 13 L.Ed. S.Ct. prison are entitled able rules (1964); Childs v. F. 2d 96 prison respect and obedience 1963), 2d cert. denied Now, population. case it has 376 U.S. 11 L.Ed.2d that food the evidence indicated been (1964). supplied nature. of a wholesome there is petitioners do wish to eat not If appeals, Appellants not, they may products eat other policies claim that food service practice may they things; in that applied discriminatory were to them a refraining religion by from eat- their ing manner. things consider ob- those petitioners jectionable. en- 310 U.S. 60 S.Ct. 84 L.Ed. If proper their idea to have titled regulation achieved, subject ever end for the attractive the be mains employed society.” the means

protection must hoard First Amendment values. regula- governmental Nonetheless, when reach tion of action within appellee But would have us challenged, is “[i]t First Amendment believe that he need not make these showing merely ration- of a basic that no showings appellants’ status because of [govern- relationship to some colorable al prisoners. as his is not our under Such suffice.”13 would interest mental] undoubtedly standing of the law. impairs activity in- governmental Where that, gov exigencies true because the religious be- ability to abide dividual erning prison those in different from essen- liefs, become two demonstrations greater governing than those in validity. clear first is a tial to without, those incarceration awful “[1] “any showing burden incidental brings necessary about the withdrawal religion appellant’s exercise the free many privileges or limitation of in- justified by ‘compelling state [is] rights, justified a retraction consid subject regulation terest underlying system.” erations our power constitutional within the State’s it has never been held that “[B]ut entering ’ ** ”14 score, *; regulate on this prison entirely one is bereft endangering abuses, “[o]nly gravest every of all his civil and forfeits engender paramount can interests”15 protection say of the law.”19 To permissible free exercise. limitations on undergo freedom modifi convincing equally The second is showing prison cation in a environment forms “no alternative say ignor suppressed can be regulation abuses would combat such adequate ed without reason. And al infringing First Amendment though society “within the as well rights.” though gov- For “even without, practice be legitimate purpose sub- ernmental subject regulations, liefs is to reasonable *6 stantial, purpose pursued cannot be that necessary protection for the and welfare 20 involved,” funda- community means stifle the mere brpadly personal government, mental liberties when end fact practical as a narrowly matter, justify- can more achieved.”17 How- stands a better chance of 303-304, nette, supra 13, 639, 12. Id. 60 S.Ct. at 903. at note 319 at U.S. 63 S.Ct. 1178. 398, 406, Verner, 13. v. Sherbert 374 U.S. 1790, 1795, Verner, supra 13, 10 L.Ed.2d 83 S.Ct. 965 16. Sherbert v. note 374 Virginia (1963). Similarly, 407, in West State at U.S. at 83 S.Ct. Barnette, 624, 319 Bd. of Educ. v. U.S. Tucker, 479, 488, v. Shelton 364 U.S. 81 639, 1178, 1186, L.Ed. 1628 63 S.Ct. 247, 252, (1960). S.Ct. L.Ed.2d (1943), right stated : “The See, g., e. Carroll v. President & Com example, public regulate, State to a Anne, missioners Princess U.S. utility may include, well so far as the due 175, 347, (U.S. 89 S.Ct. 21 L.Ed.2d 325 process concerned, power impose test is 19, 1968); Nov. Schneider New Jer legislature all of the restrictions which a sey, 147, 146, 161-162, 308 U.S. 60 S.Ct. adopting. have a ‘rational basis’ for (1939). 84 L.Ed. 155 speech press, But freedoms of and of assembly, worship may 285, Johnston, 266, in and of not be Price v. 334 U.S. fringed grounds.” 1049, 1060, (1948). slender on such S.Ct. 92 L.Ed. 1356 infra, accompanying See note 21 and 13, Verner, supra 14. Sherbert v. note text. 1793, quoting at at S.Ct. U.S. Button, 415, 438, supra Sewell v. NAACP v. 371 U.S. note 291 F. (1963). Note, Beyond 2d at S.Ct. 9 L.Ed.2d 198. See also Critique Ken of the Courts: A of Judi Verner, 15. Sherbert v. Complaints cial Refusal to Review the 1795, quoting 83 S.Ct. U.S. Convicts, (1963). 72 Tale L.J. 506 516, 530, Collins, Thomas 323 U.S. Long Parker, L.Ed. Virginia Bar State at 820. Bd. Educ. West well, religions explaining ing liber- fundamental other as a curtailment of serving prisoners are does fish for involved usual one meal ties where Friday “just im- need for is not reasons Catholics. not eliminate Turkey particular just tradition, re- peratively justifying the It’s a the same as Thanksgiving.” rights challenged bar.21 for hint traction of arrange- governmental any practical re- limitation on Nor does it lessen resulting sponsibility appellants propose im- ment to reduce the found following interchange: pact upon fullest ex- those justified ob- tent consistent with Q. You no have received directives jective.22 then, supplying meals a where person could eat who II ? obtain a balanced meal supports The record religion A. If we did for one we go, they findings but far as SO' Court’s it for another. have to do would difficulty from insuperable emanates Q. Well, religions you what other findings bearing the absence of have to contend with? constitutionally that are the criteria Well, religion, A. there’s the Jewish finding to wheth- crucial. There is no as religion and there is the Catholic any particular under- “considerations er lying they days lot of have a system” our warrant specific things. cannot eat jail’s food tax on conscience policies require This, think, service completely misses the finding to point. Appellants seek, endure. is there a Nor do not either for ad- program could not be Muslims, whether themselves menu a full lighten or ministered in such a as to specially tailored be- eliminate burden request liefs. Their for “one full-course scrutiny own pork-free exercise. And our day diet coffee once sup- legally little record has revealed daily” essentially plea three times port program it is degree now conducted. for a modest of official deference religious obligations. Certainly to their acting superintendent of the if this concession is feasible steward testified that chief standpoint prison management, provide planned menus well- are represents minimum bare budgetary alloca- balanced diet within authorities, specific with or without per tion of 90 of food materials cents quest, constitutionally required They prisoner per day. conceded, how- *7 do, not for ever, Muslims but indeed for planning is that the done without any group respect of prisoners inmates with for the fact that some restrictions on pork. They diet. But cannot that we are not dine on stated why appellee regard equally told could not prepared for ac- menus are without supra 18, Johnston, of limits executive 21. discretion in admin Price v. note 334 istering system, 285-286, 1049, the correctional well at 68 S.Ct. where the as U.S. activity.” case-by-case in as other areas of executive de looked toward Sard, supra 4, v. Edwards note F. courts 250 termination lower of whether ** * Supp. Roy necessity at 978. also Rivers See v. “reasonable dictates” ster, (4th 1966); questioned right pro F.2d Cir. retraction — 9, Pegelow, supra argument appeal Childs v. F.2d note se of an from a crim 490; Clemmer, supra at Fulwood v. note inal conviction —from inmates. Pege 4, F.Supp. 375; (4th Smyth, 428, Sewell at Howard 365 F.2d v. v. low, supra 4, Cir.), 988, F.2d at note 197-198. U.S. S.Ct. cert. denied 385 Compare Long Parker, supra 599, (1966) ; Banks v. v. note L.Ed.2d Havener, supra 4, Havener, supra 4. at Banks note note 16-17, supra. 22. See notes running responsibility “The for system Johnston, 18, penal one. How Price v. note an executive is 285, 1049, quoted system operated ever, in at cannot be U.S. in text 18, supra. law; outer at the law note violation of sets why they im- least, ap- thus narrow the could not at extent commodate, some upon appellants’ pact incarceration of of needs supplication and pellants’ religious practices. group well. as any such other record in judicial indication no is There That as well as budgetary constraint any respond there to constitutional authorities pork, vegetables with seasoning society vastly important fewer as duties is non-pork-seasoned alternatives preparing prisoner. Treatment well as the vegetables serv- inmate, pri pork-seasoned degrades the invades his when non-pork substitutes ed, providing ability vacy, and to choose frustrates is also record pork. The through pursuits of main dishes he can manifest which why could any self-respect gain reason barren erodes himself and indica- weekly menus with post very pre not can foundations which he contain Religion dishes pare socially added as tions for a life.24 useful any reason appear prison does there in Nor the rehabilitative subserves served that are why by providing dishes function area within evenly dignity more may not distributed which the inmate reclaim his But, individuality.25 throughout obvious the week. and reassert his pro menus with publication quite ironically, government while advance ministers, prisoners chapels, content designations vides as spacing items, such symbols,26 and the the listed there free sacred texts and possible, as danger them far prison personnel dishes to scatter subsists con- the area of at least reduce will would demand from inmates the same already religious sphere obeisance in The concern. stitutional mimeographs menus, rightfully they may require least more aspects in other danger prison in- them to review life.27 This two officials years, against not chimerical. In recent meals sure well balanced of Columbia directives religious scruples con- Commissioners,28 in the Muslim inmates Appellee told us suming pork. has “ ilarly commented, it ‘is some Goffman, On Characteristics E. increasing negro lated to his status as Asylums Institutions, 7, 11-48, Total ” * * *.’ ob- Society [sic] Id. It has been (1961) ; Sykes, G. 57-58 amazing have had Excerpts served Muslims 32, (1966). Captives, 12, hopeless reforming apparently success writings found in are to be from hoth Lincoln, The Black Mus- Schwartz, recidivists. O. Donnelly, & R. J. Goldstein R. (1960). lims America 82 (1962). Law 428-32 Criminal judicial so notice accredited take support of re- For discussion of this “precise them and consider cial studies ly auspices ligion under the District’s though content had been ad Department Corrections, Fulwood see Cooper in the case.” mitted as evidence Clemmer, supra note Pate, 165, 166-167 at 374-375. grounds 1963), U.S. rev’d on 22, 36, Goffman, 12 L.Ed.2d 1030 84 S.Ct. Sykes, supra Compare 69, 89, 114-16; Board of Brown *8 Educ., n. 347 U.S. (1954); Beauharnais 98 L.Ed. Clemmer, supra in Discussed Fulwood v. 250, 258-263, Illinois, S. 343 U.S. note 96 L.Ed. Ct. Pegelow, After remand in Sewell v. the supra appeal Sykes, an Goffman, supra note while 24 at note Superintendent pending, Lorton the of Fulwood note at 34. Reformatory a of assur- Clemmer, supra submitted letter Appeals Fulwood, the that fore- ances to Court of in stated As the court changed significantly practices inmate-petitioner] in cast the [the him “[t]o regard to Muslims. Sewell v. faith is of Muslim main attraction the 1962). something The De- gave F.2d 670 304 partment to associate him that subsequently, grounds uplift something found with, him to himself unjustifiable, legally the degradation withdrew to be privileges he had the Banks prison the letter had assured. sim- a official Id. And as fallen.” unconscionable, prisoners of custody treatment Department of Corrections the of accept proposition a the that I cannot deprived the most basic of been have necessary corollary that only by of that belief is liberties, which court display in I fear we softheadedness. been restored.29 have order present our entire like situations approach the case question the not reach doWe syn- slipped out of has somehow appellee the Con has violated whether concentration chronization in our when the hold here.30 We do stitution energies to First Amend- addressed dismissing appel in District Court erred sight guarantees, completely ment lose determining petitions without lants’ system objectives of a law the criminal appellants’ impediments to the whether least, utilizing part imprisonment, in dietary have creed observance compelling punishment not as a for crime. justifications,31 whether difficult to which visualize situations operations governmental purposes and judicial justified, be even mandate would impediments responsible for those required, conduct correct affirmative feasibly “pursued by [less] means part administrators broadly personal liber fundamental stifle abrogates patently the constitu- which ties.” inmates, tional record but the to the District remand these cases present not before us case does proceedings to deter- for further challenge arouse in me down a strike provision meals at mine whether the agonized ancient the fervor squared with con- the District Jail can be mariner, pernicious and constitutional- requirements, award stitutional ly practice. evil ap- accordingly. In deference decision views, my I do not brethren’s share authority pellee’s within admitted herein factual situation Constitution, the court limits set personal “stifle fundamental liber- [s] will, step, him the afford the first majority ties.” opinion footnote 10 of As plan he opportunity present which forth, not sets require- constitutional meets believes policies “claim that the food service ments. discriminatory applied to them in a and remanded. Reversed contrary, appellants manner.” To the request that the authorities discrimi- Judge (concurring TAMM, Circuit nate ing afford- only result): appellants special privilege. majority opinion Insofar as the majority’s to the District Court remands cases I am concerned willing, proceedings, I am creating for further opinion the nucleus luctantly, action. While to concur by finding dangers of con- real vacuum rugged protestations of con- of violations in a record which stitutional dimension always guarantees heart- stitutional appealing justify of such does use opinion majority ening, I fear that the rights,” phrases “tax as “retraction legal magnifies un- issue herein conscience,” on exercise,” “burden inmate, hampered by practical “degrades of all evaluation invades recog- Readily privacy,” us factors involved. The record before etc. currently ninety nizing, accepting, budget if not establishes day per prisoner philosophy author- prevalent that hard-fisted cents a opportunity Havener, lee rebut never had showing Clemmer, supra prima of a constitu- facie Fulwood 29. See also wrong by appellants. out made tional note 4. *9 Clemmer, supra note 29. See Fulwood v. accompany- 14-15, supra, and notes 31. See Havener, 4. See Banks ing text. 28, supra. also note Tucker, 32. Shelton were dismissed As the cases appel- appellants’ presentations, 81 S.Ct. at U.S. at close attempt ities diet to serve a balanced any preferential all without any group treatment grounds. Moslem, Jew, Catholic and Protestant are served identical by budgetary limited menus considera- uniformity prisoners. tions to for all program That this in some restricts appellant prisoner an or other from “re- [ing] dignity [ing] claim and reassert individuality” his ability and “frustrates pursuits through to choose which gain he can manifest himself and self- respect” my certainly erodes understand- ing of the dimensions First Amend- protection. my ment I learned fear that majority brethren of the this case pursuing an abstract constitutional issue opus creating for its own sake and are an monstrous ends means. If proceed- the ultimate outcome of these ings judicial supervision is to institutions in such detail minute encompass makeup even the selection and daily menus and direction of the serv- day (as appel- ice coffee three times a demand) lants theory all bottomed freedom there involved, having opened the court Scullen, Washington, this James R. D. Mr. Pandora’s Box C., by court) must not (appointed appel- hereafter com- plain about hornets. lant. Nicholson, Special Asst. Mr. Donald B. Atty., U. with whom Messrs. David G. S. Q. Bress, Atty., Frank Ne- U. S. beker, Atty., on the Asst. U. S. brief, appel- brief, submitted on the lee. Judge, Phillip Before Circuit Senior Eric DUCKETT, Appellant, Alonzo Fahy, Burger Judges. Circuit Tamm, UNITED America, STATES of Judge: TAMM, Circuit Appellee. August, 1966, day the 21st On No. 21614. young lady carnally known and was United Appeals States apartment Court of abused an intruder in the District of Columbia Circuit. day staying. 23rd she On the where was Argued Phillip Jan. October, Duckett one jury for those crimes. On to a Decided answered March day December, Duckett 15th Rehearing Petition for Denied adjudged guilty committed to a was May 28, 1969. imprisonment the district term of January, day of court. On the 8th Today appeal decide noted. this case.