United States v. Conrad S. Dancy, (Two Cases)

un- delayed search was that the upon the fact Robinson and Edwards cases relied brought police to the was Judge til the arrestee cited in Tamm’s have search from the rule station—remove this issue otherwise. For decided The We think not. above. articulated reason I concur. recent decision Unit-

Supreme Court’s provides the con- v. Edwards

ed States

trolling rationale: lawfully arrested accused

once in his custody, the effects is in detention place

possession time at the subject to search

that were lawfully his arrest place a war- without and seized be searched period though a substantial even

rant the arrest elapsed between

of time UNITED STATES of America process- subsequent administrative hand, taking v. and the the one ing, on evidence, for use property DANCY, Appellant Conrad S. other. (two cases). 71-1856, Nos. 72-1452. cannot believé We L.Ed.2d United States Court Appeals, clearer, rule could be the Edwards District of Columbia Circuit. com- applicable to search be more here.

plained of Argued Sept. Moreover, note that even before Decided Jan. Edwards, appeals upheld suit- courts which occurred sometime searches case Kaye, arrest. In United States

after place airport at an

supra, the search took appellant had been

security office after and disarmed. United States

subdued Mehciz, aft- supra, the search occurred handcuffed. If appellant had been

er the correct- any doubts about

there are holdings, Edwards has cer-

ness of these

tainly resolved them. judgment is

Affirmed.

EDWARDS, (concur- Judge Circuit

ring):

I believe the Fourth Amendment require

should be construed so as to procedures

search warrant 1)

facts of this case. The defendant was 2) shopping bag

under arrest. police complete po- station under 3) magistrate

lice control. There was a

available. however, agree,

I have to that the Su-

preme Draper, Court’s decisions in the Freeman, Washington,

Carol Garfiel Court), ap- (appointed D. C. pellant. Gerson, Atty., Asst. U. S. M. Stuart Titus, Jr., U. H. S. whom Harold filed, the brief was the time Atty. at Atty., and Asst. U. S. Terry,

John A. Alto, Atty. at Asst. U. S. R. Vincent filed, were on the brief time brief, for appellee. BAZELON,

Before Judge Chief ROBINSON, LEVENTHAL and Circuit Judges.

BAZELON, Judge: Chief Appellant, Conrad Dancy, was convict- September 23, ed on degree 1971 of first a memorandum issued on Janu- felony murder1 and other lesser of- ary disposed of all claims fenses,2 stemming from the shooting relating to his conviction.6 At the same July of William Darden death stayed time we consideration Dancy years 1970.3 Since was under 22 FYCA issues raised pending the case age conviction, the time he was Court’s Dorszyn- decision in eligible to be considered for sentencing v. United ski States. now youth facility a treatment to under decided, having 424, been 418 U.S. 94 (FYCA).4 Federal Youth Corrections Act 3042, 41 (1974), L.Ed.2d 855 pro- S.Ct. we decision, sentencing To assist him in his to an issues, ceed of those examination elected, pursuant to 18 and, examination, based on that remand 5010(e), to commit Dancy U.S.C. to a § the case for resentencing. study sixty day and evaluation at resulting Lorton Youth Center.5 The re-

port Dancy recommended that be denied I given FYCA and be an adult 1950, Enacted in the Federal Youth Relying sentence. on that recommenda- Congressional Corrections Act was a re- tion, Dancy sentenced to sponse to the persons fact that between an adult term of imprisonment of twen- ages of 18 and 22 were proportion- ty years to life degree on the first mur- ately over-represented far in national der to count and lesser concurrent terms crime statistics.7 It was thought that on the other counts. psychological physiological and factors special created a propensity persons in in conviction Dancy appealed both the age that bracket to engage in criminal In sentencing. of FYCA the denial and 4. 18 U.S.C. §§ 5005-5026. 1. 22 D.C.Code 2401. 5. The trial degree noted that the commitment

2. The lesser offenses were second study analysis was “for a (22 2403), attempted further and so far murder D.C.Code rob- psychological psychiatric 2902, (22 as stances and bery circum- while armed D.C.Code §§ 3202), carrying pistol whether or not the defendant can a without a license provisions benefit from (22 3204). of the Youth Cor- D.C.Code rections Act in the event that should serve to Testimony 6, July at trial indicated that on be the answer.” Darden, eight year William his 1970 old Tyson daughter, a woman named Christine rejected Dancy’s In that chal several of her children in and Darden’s car from North were en route lenges degree to his first murder conviction to Darden’s Carolina carrying pistol and his conviction for with Haven, They home in New Connecticut. out a license. We vacated his sentence on drove into the District of sometime Columbia degree the second murder conviction on the early morning stopped at the hours and U.S.App. basis of Fuller v. United 132 Carryout Avenue, Bar 20 N.E. Kenilworth 264, denied, 1199, (1968), D.C. 1233 n. 52 carryout entered the Darden bought alone. As he 1120, cert. 22 food, approached some a Mr. Henson L.Ed.2d 125 We also vacated his con quarter. and asked him for a When Darden attempted robbery viction for while armed refused, carryout. Henson left the On leav- underlying felony since it was the of his felo Dancy standing ing, Henson saw who was ny murder conviction. United States v. companions. outside with some asked Dancy replied Henson Greene, U.S.App.D.C. 489 F.2d 1145 Dancy doing what he was in the area. (1973), denied, cert. U.S. S.Ct. trying that to make “he was 42 L.Ed.2d 190 money.” Dancy say some Henson also heard Judiciary money Representatives “he went down some that and he was conversation, to make House of 7. The going During proposed Report Federal to rob a man.” carryout, “[p]er went Darden left the indicated that Act Youth Corrections car, carryout age re- be cov to his reentered the inclusive [the sons 16 again sitting per proposed once to his While turned car. constitute Act] ered car, Dancy approached by age population his Darden was above the cent of our they put gun got figures) (based who to his out but are head. Darden census on 1940 robberies; exchanged Dancy. percent responsible car and of our of the Dancy words for 47.3 way ap pushed percent they our Darden out of the 55.4 constitute followed, percent burglars, our prehended to the street. backed whereupon Dancy Darden and 63.1 H.R.Rep.No.2979, 81st shot him. thieves.” automobile to the youth wise, may sentence possible he thought Congress activity.8 Attorney General custody of offenders young these many to steer Finally, if Act.12 crime, under be- treatment life of a continued from away of- youth “the that judge finds trial persons “young lieving that derive benefit have, general will fender as of crime convicted treatment,” he rehabil- Corrections being Act] potential rule, higher [Youth offender may do “sentence than citizens useful to become itated provision penalty applicable [i. In or- offenders.”9 older, mature more him as an adult].” FYCA e. potential, that to realize der offenders eligible young provides to insure order reha- established specially committed an in- decision judge’s “es- facilities, receive there bilitative wisely provided one, Congress formed Such of treatment.” varieties sential the Act “[i]f benefit —also the added provide facilities information additional desires insuring the Act —of by contemplated will derive offender youth a whether intermixed are offenders young the Act] treatment [under from benefit hard- institutionalization their in com- he be may order criminals.11 adult ened and observation for . . . mitted classification appropriate study at available sentencing alternatives The six- and that agency” “[w]ithin center are set the FYCA under trial court to a . order of the date days from ty commitment 5010. If § in 18 U.S.C. out report shall Division Services] may place [Youth the trial unnecessary, is findings.” its Other- probation. offender youth Cong., Sess., 2, Cong. youth 2d improve U.S.Code his aca- Serv. which enable a News, 1950, p. standing, develop 3984. More current statistics demic a marketable skill disproportionality. continue problems to show this and to deal with the emotional percent presents. of the arrests for violent which he persons Ward,-337 ages crimes were of between the United States v. (D.D.C.1971). ages by 18 and 22—the covered the enacted age represents FYCA—while that only bracket 11. 18 population. provides U.S.C. § the American 5011. The FYCA also Crime 7% youth in the Reports that when a United 1973 FBI Uniform offender sentenced Crime provisions discharged expi- at 128-29. is “before the ration imposed of the maximum sentence “Sociologists psychiatrists tell us that and upon him, the conviction shall be automatical- period special causations which occur ly set prom- aside.” 18 § U.S.C. 5021. This are, in a and manhood between adolescence expungement ise important is an one. measure, large responsible antisocial con- for stigma “The of a criminal conviction age by persons in that duct trends manifested group.” H.R.Rep.No.2979, greater handicap itself be a in later life than Cong., 2d 81st misspent youth.” Bazelon, Racism, an entire 1950, p. Cong. Sess., 2, Serv. U.S.Code Classism, Process, and the Juvenile 53 Judica- ture Waters, U.S.App.D.C. 9. United States v. treatment, pro- 12. As for duration of the Act broadly 10. 18 U.S.C. § “Treatment” is vides two alternatives. If sentenced under 18 pre- defined in the statute as “corrective and 5010(b), young § U.S.C. a offender must be guidance training designed ventive protect unconditionally discharged no later than six public by correcting the antisocial years after the date of his conviction. youth tendencies of offenders”. 18 U.S.C. 5017(c). 5010(c) If § U.S.C. 18 U.S.C. is 5006(g). actually provided The treatment year judge, ceiling invoked the six Youth Act facilities such as the Lorton Youth apply discharge does not and unconditional Center includes educational vocational up expiration can occur time to “the training psychiatric psy- as well as some imposed, computed the maximum sentence uninterruptedly chological counseling. In a letter to the Dis- date of conviction.” Court, Depart- trict the Director of the D.C. 5017(d). 18 U.S.C. § explained ment of Corrections that: 5010(d). 13. 18 U.S.C. § designed The Youth Center is an institution provide opportunities resources II ordinarily- center classification The convicted offenders young used implementation of the the Lorton is District Columbia of the FYCA has been the provisions of the the conduct Center. There Youth litigation much subject of in this and responsibility of a 5010(e) study is the Term, Circuits.15 Last the Su- Committee. Center Classification Youth addressed the preme Court area for the of a clinical composed time in first United and Pa- and a Classification psychologist case, young In that a man of States.16 is chaired the Ad- Officer and role guilty possessing been found a 19 had Diagnostic Unit of the ministrator without a prescrip- substance controlled The Classification and Center.14 Youth Although requested counsel tion. compil- responsible Parole Officer “placed proba- the defendant reviewing the ing study classification Act”, the Youth Corrections tion under question, of the offense circumstances judge sentenced defendant family back- offender’s social and ordering adult term without to an and, of his relation- ground quality and the 5010(e) study and evaluation in- while at the Center. ship deed, with the staff reference making any without only interviews not may conduct He FYCA. The Court all to the resentencing. the case for It fami- remanded but also with his with the offender court had before17—that held—as community The clini- ly and associates. judge may sentence a trial before compiles personality psychologist cal term he offender, offender to an adult must inter- based on profile finding eligible that the an projective certain make with him and views expiicit benefit” from FYCA will “not The three Classi- intelligence tests. However, the prepare members a treatment. fication that, giving also indicated and recommendation. Court joint evaluation sentence, the is not re- recommendation, adult evaluation and This as to the rea- give a statement quired to reports of the along with the individual finding of underlay his “no which and the sons and Parole Officer Classification that The Court stated a cover letter benefit.”18 psychologist and clinical unfet- preserve intended “to Di- FYCA Superintendent or Assistant of federal sentencing discretion tered are forward- of the Youth Center rector only purpose judges”,19 and Based district of Parole. ed to the D.C. Board a statement of reasons requiring material, Board makes its supervi- appellate “to facilitate would be recommendation and submits own limit, of, the trial thus to documents, sion the com- package entire sentencing discretion.”20 court’s 5010(e) study, to the court. pleted § Coefield, U.S.App.D.C. 17. United States v. 155 provided 14. the § The outline here of 205, 1152, (1973) (en banc.) 476 F.2d 1156 process largely re is based on the written sponses of the Director of the D.C. Assistant Dorszynski 18. Prior to had re- this circuit questions posed Department of- to Corrections quired accompany that a statement of reasons Tillman, by trial court in United States judge’s finding a trial of “no benefit.” United (D.D.C.) (responses filed Jan. 374 215 Reed, 198, U.S.App.D.C. States v. 476 155 2, 1974). Phillips, States v. See also United 1145, (1973); F.2d 1149-1150 United States v. 1200, 217, U.S.App.D.C. 1203 479 F.2d 156 Coefield, 205, U.S.App.D.C. 155 476 F.2d (1973) . 1152, 1157 States, 424, Dorszynski 418 U.S. United 3050, 41 L.Ed.2d 855 Coefield, 94 S.Ct. g., 15. E. United States v. 155 U.S. (1973) (en App.D.C. banc); F.2d joined justices Id. who at 3052. The four States, (3d Williams v. United 476 F.2d 970 separate opinion concurring in a in the result States, 1973); Cir. Brooks v. United majority poli- point to several reached (6th States, 1974); Cir. v. United Cox appellate cies other than the “facilitat[ion of] (4th 1973). 473 F.2d 334 Cir. them, that, supervision” according would They be served a statement of reasons. 16. 418 U.S. 41 L.Ed.2d a) might “con- (1974) assert that such a statement . point out in Rather, was careful simply Court that guarantee aims to n Dorszynski, however, appellate that judge’s discretion is sentencing perform a limited role courts do have actually the infor- exercised28 and that sentencing noting area.21 In that upon by mation relied not unrelia- him is made no contention that appellant ble,29 insufficient.31 improper,30 grossly or upon improper Court relied “the District Staying well within the bounds information”,22 the Court or inaccurate appellate role Dorszynski, described in v. Tucker.23 In so cited United States conclude III, reasons detailed in Court the estab- doing, reaffirmed infra, Dancy’s that case must remand- appellate that courts have lished doctrine ed for resentencing. sentencing duty to scrutinize decisions they not insure that are based on Ill is false otherwise information improper.24 A Court careful to dis was also sentencing Dancy term, to an adult modification tinguish “appellate between statutorily-authorized sentence”25 commented follows: of a “This court is of the opinion that scrutiny judicial view and “careful of the fact the Youth Center process by particular punish which the itself indicated that him as a ment was determined.”26 While the for youth would not be proper procedure inappropriate, the latter generally mer is they and that contrary, necessary would not able sup- incident is “on the ply has; the needs that he always appropriate ap although what has been recognizes the Court pellate review of criminal cases.”27 mere incarcer- rehabilitative, ation may not be judicial appellate Careful review never- theless, the Court has no process alternative un- impinge does (Sent. der the 4-5). (em- statute.” judge’s Tr. upon the trial discretion to im phasis added) pose statutory sentence within limits. rationalizing sentencing process tribute to v. United [by] encouragfing] . to clari- grounds (1974) S.Ct. L.Ed.2d mind, fy justify, in his own Hartford, quoting from United States v. 489 chooses”; b) he for the sentence aid “correc- 652, (5th 1974). F.2d 654 Cir. handling pris- in tional authorities their of the (emphasis original). 26. Id. in sentence”; c) oner after “aid defendant’s 27. Id. insure counsel premised to the sentence is not misinformation”; d) “con- 28. See McCoy, United States v. U.S.App. 139 to the tribute avoiding offender’s rehabilitation 60, D.C. (1970); 429 F.2d 739 Briscoe v. Unit any feeling that his sentence was States, ed (1968). U.S.App.D.C. 146, 129 391 F.2d 984 (Marshall, arbitrary.” J., Id. at 3058-3059 concurring result). Frankel, See M. Burke, 29. 736, Townsend v. 741, 334 U.S. 68 Sentences, Law Criminal Without Order 39- 1252, S.Ct. (1948). 92 L.Ed. 1690 (1972); Singer, R. L. 49 Goldfarb & After (1972). States, Scott 190-95 v. Conviction United U.S.App.D.C. 135 377, 264, 419 (1969); F.2d 266 see also United recently recognized

21. This court has Wiley, States (7th v. 267 F.2d 1959). 453 Cir. Allen, role in United v. States 166 States, See v. Leach United U.S.App. 118 -, U.S.App.D.C. 510 651 F.2d at 652-653 197, D.C. (1964); 334 F.2d 945 see ABA (1974). Project on Minimum Standards for Criminal States, 424, Dorszynski v. United Justice, Relating Appellate Standards to Re 7, 3042, 41 L.Ed.2d 855 3047 n. S.Ct. 94 view 3.2(ii) (1968) (“The Sentences § au (1974). thority reviewing of the respect court with to 589, 443, 30 L.Ed.2d 592 specifically sentence should 92 S.Ct. 23. 404 U.S. extend to re view of . the manner in which the imposed, including the sufficien Burke, U.S. 68 334 v. 24. See Townsend cy accuracy of the information on which (1948); United 92 L.Ed. 1690 S.Ct. based.”). it was Latimer, (6th Cir. 1288 415 F.2d v. States States, 123 1969); United also Coleman see (1965) (en U.S.App.D.C. F.2d banc). evidently judge 5010(e) report The be While a trial is a potentially useful aid, lieved that the statute barred him from pre-sentencing designed sentencing Dancy youth only to provide term to “additional information the recommendation of Youth as to against youth whether of fender will apparent This surren derive benefit Center officials. treatm ent.”34 to responsibility judge may der of discretion and trial accept the recommendation Youth Center authorities is fundamental of the 5010(e) re port. But he is ly reject odds the demands of tradition also free to it. order to make an requires al doctrine that informed sentencing may he statutory require decision trial exercise his disc expla detailed report, nation of the importantly, seek supplemen retion.32 More tation with judge’s further claim that had “no alterna information and/or inquire into the manner manifestly tive” inconsistent with the of its preparat ion.35 provision of places the FYCA which

responsibility making finding both B making of “no benefit” and for the sen recommendation tencing decision attendant thereto Youth Center’s Classification trial court alone: “If the court shall find deficiency reveals another youth offender will not derive Dancy the manner which was sen . . benefit . then tenced. That recommendation —which youth sentence the offender under al- judge apparently believed applicable penalty provision.”33 explicit U.S.App.D.C. finding by amount McCoy, 32. United States v. him that Dancy (1970); would “not derive 429 F.2d 739 Briscoe v. United benefit from treat- States, ment U.S.App.D.C. under the Act.” experience Our demonstrates the wisdom Court’s refusal leave the 5010(d) (emphasis added). 33. 18 U.S.C. § finding implication. “no benefit” In Unit judge’s apparent Nor does the trial surrender Buren, ed States Van (D.C. No. 72-1605 of his discretion to Youth Center authorities Cir., 2, 1974), Oct. relied on a Dorszynski. any support “Literal find negative findings host in the defendant’s compliance with the ‘no benefit’ re- [FYCA’s 5010(e) report deny sentencing under the quirement] satisfied'by any expression can be Nevertheless, FYCA. we remanded because sentencing judge that makes clear the con- judge’s explicit failure to make an “no sidered the alternative of finding. remand, benefit” On the same trial the Act and decided that offender finding to make that —unable —sen would not treatment un- derive benefit from tenced Van Burén to a Youth Act term. der the Act.” v. United (1974) L.Ed.2d 5010(e). 34. 18 U.S.C. § (emphasis added). below, pages infra, 35. As discussed 14-21 language is not the The “no alternative” inquiry proven such occasion extreme- proceed- only sentencing shortcoming in the ly revealing. valuable and ing. sentencing transcript Nowhere in is the any explicit finding by judge— 5010(e) there the no trial While examination was ad- by Dorszynski Dancy required appellant Dorszynski, as will ministered to the —that opinion separate not summarizing Youth treatment. In Justice Marshall’s problem benefit from Act treats the weight given 5010(e) presentence of and the to be such exam- reports, clearly it is true that the trial men- inations: Act intended “[T]he that the explicitly adopting sentencing tioned —without negative ultimate decision remain with the —their “Dancy judge. pass by trial That decision conclusions that is not an should appropriate person of abdication for the benefits correctional authorities who 5010(e) study. Thus, program prepare Act” that is in of the § “he need a where a 5010(e) report, that is a § than which offered trial secures more structured he adopt only The trial court itself should its reasons as his the Youth Center.” own found, alia, “[djefendant assuring adequacy that is after himself of the inter of the report propriety criminally sophisticated oriented of recommendation.” However, ways particularly v. United of the world.” 418 U.S. subsequent light judge’s “no alter- 41 L.Ed.2d S.Ct. of the language, none these of conclusions native” him “no alternative under the lowed mended had known that an sen- adult evidently misin- statute” —was based on Dancy meant a definite term tence formation. imprisonment twenty of at least the clinical years. appear It would from which Classification Committee psychologist’s expressed concern that as 5010(e) study Dancy’s rec- conducted he such likely as not would have found a “Dancy that be sen- ommended should mandatory minimum term inconsistent tenced as an adult with consideration for thought Dancy the benefits with legally possible as short term that is “psychotherapy, derive from voca- could within framework of this statute.” training and additional education.” tional may This of a short mention sentence any it would be At rate “callous”38 to have been an well effort Commit- that the (cid:127)assume recommendation tee strike a compromise between rec- Classification Committee would necessar- ommending youth long sentence and a ily have been the same had its members term adult sentence. The desire for accurately informed. been compromise apparently such a stemmed from the psycholo- clinical far So as record before us is con- gist Dancy who appel- examined that the cerned, it appear would that totally lant was not devoid rehabilita- judge failed to exercise his discretion in potential tive but rather “could benefit sentencing Dancy placed and that he full psychotherapy from as aswell vocational reliance on a recommendation which it- training and additional education.” product self have been the of misin- report, his individual psychol- clinical factors, formation. Given these we must ogist recommended as an remand this case for resentencing. adult “with shortest term possible charge.”

for his IV apparently What was to the unknown apparent reliance of the Clas members of Classification Commit- sification Committee on the erroneous including the psychologist— clinical tee— premise Dancy was eligible for a was absolutely that the trial had short sentence may well not be the only give no discretion to Dancy short adult defect in 5010(e) his § study. Since Dan mandatory sentence. The minimum sen- cy sentenced, District Court proceed murder, degree tence for first the cen- ings on the conduct of § studies Dancy tral crime for which was convict- have been held in the cases of United ed, years twenty imprisonment States v. Norcome39 and United States no possibility parole.36 Uninformed v. Tillman.40 generated Information alternatives available these hearings raises possibility judge, the Classification all including Dancy’s are studies— —that suggested a sentence that the conducted at the Lorton Youth Center powerless impose.37 trial court was suffer highly procedural serious It substantive is at what the defects. responsi least uncertain Clas- Our bility to “careful[ly] sification Committee would have recom- scrutinize] Dancy statutorily eligible “Notwithstanding provision for a “short” law, person twenty degree years]. one [i. e. far less than convicted first murder eligible only parole shall be after expiration twenty years from the Tucker, date 38. See United States v. 8, 589, commences to serve his sentence.” 22 (1972). n. 449 92 S.Ct. 30 L.Ed.2d 592 D.C.Code 2404. § 37. The Committee’s literal recommendation of F.Supp. (D.D.C.1974) (hearings 39. 375 270 legally possible “as short a sentence that 11-12, 21, on conducted Feb. 1974 and March within the of framework the statute” could of 1974). However, course be followed. the recommen- particularly Dancy’s (D.D.C.1974) F.Supp. (hearings if based on reha- 40. 374 215 dation — bilitative potential clearly implies 28, January an as- conducted December 1973 and — 2, 1974). sumption the Classification Committee

787 41 judicial However, process” fencing. and to on the basis of hear- insure that studies, ings judge “the trial held on the conduct of both considered the infor- judge original posi- mation available with reversed his regard some 42 and, contrary 5010(e) reliability” compels study tion to the judi- § us to take recommendations, imposed cial notice of those sentence un- hearings.43 re-On suggest mand we that the der the FYCA. District Court consider their relevance and the conse- position plain These reversals of make quent possible inquiry need for detailed the crucial nature of the information into the manner in 5010(e) which the § generated at the Norcome and Tillman study was conducted in Dancy’s case. hearings. hearings Uncovered at concrete pro- were number of after hearing was held Norcome foundly disturbing in the defects conduct at Lor- 5010(e) conducted studies two § 5010(e) of the Norcome Tillman § the defend- had recommended ton There is no reason to believe studies. During adult sentence. given an ant testimony hearings from the at the however, ev- hearing, of course anything these defects were other than original- who had of the officials ery one systemwide affecting Dancy’s study — rec- making the adult ly participated and, indeed, every 5010(e) study § con- posi- original his reversed ommendations judges ducted at Lorton. The trial was Act treatment that Youth tion clearly Norcome and Tillman perceived The trial for Norcome.44. appropriate problems extending considerably a Youth gave Norcome ultimately particular beyond the cases before them. Act sentence.45 Norcome, In the trial court concluded “5010(e)diagnostic that the system [is a] Tillman, In sentenced provides farce” which curate, courts with “inac- the defendant to an adult term on the wholly misleading erroneous and 5010(e) report of a basis recommenda- 5010(e) reports and recommend- appeal tion. While the case was on The Tillman court likewise ations.”46 record was remanded on Tillman’s mo- “procedural that the and sub- concluded tion to allow the trial to recommit 5010(e) problems in the observa- stantive updated 5010(e) him study. process at study tion and Lorton report That also recommended adult sen- present inquiry case to warrant on the re- States, 424, Dorszynski v. United 418 U.S. already require. totally mand we For us to 3042, 3053, (1974). 41 L.Ed.2d 855 ignore Tillman would be Norcome and anoth- U.S.App.D.C. 42. Scott v. United 135 er act of that “blind court” that does not see 264, 419 F.2d what “all others can see and understand.” 41, Rumely, 44, United States v. authority to notice the records of 43. For our 97 L.Ed. 770 S.Ct. 543. Wilson, litigation, see Gomez U.S.App.D.C. 477 F.2d n. 28 F.Supp. 44. 375 at 275. (1973) (notice of citizens’ affidavits taken Indeed, alleging police litigation in other harass- Norcome and Tillman are not filed ment); Corp., Judges v. Transamerica first occasions which Zahn District have (3rd 1947) (notice expressed quality 48 n. 20 Cir. taken dissatisfaction with the pleadings reports compiled by whether it in state case establish Lorton action); Alsbrook, derivative Allen State Board Youth Center. United States v. Carolina, F.Supp. (D.D.C.1971), Judge Education of North 55 F.R.D. Gesell (M.D.N.C.1972), receiving aff’d 473 F.2d 906 noted that is not “the Court 1973) (notice type (4th thorough, knowledgeable report decisions and taken of which Cir. desegregation litiga- requires findings responsibil- of fact in other the Court to exercise its for relief in the instant tion to determine need ities under the Act.” Id. at 975. case). Our reference here to the records at 275. The court found that and Tillman is not meant to estab- Norcome hearing testimony presented reflects adminis- there- record of the “[t]he lish as factual Leventhal, practices diagnostic Opinion Judge in the examination concur- trative in. See Rather, result, offenders that border on page extreme ring 790 infra. Congressionally- governmental dereliction of noting purpose the testimo- is for the responsibilities under the Act.” Id. appear judicial findings mandated ny in those cases sufficiently at 274. to the issues in the be relevant . . unit . Moreover, diagnostic original 5010(e) Tillman’s re- § Center’s Youth of preparation recommends a port sentence for which impeding been have re- knowledgeable thorough, legally eligible.49. he was even type ‘the to exercise requires understanding” by Court “lack of Youth Cen- which port Cor- personnel may [Youth ter stem from the fact responsibilities its ” (foot- F.Supp. organized there is no means for in- rections Act].’ judicial omitted). forming them of decisions inter- note preting the FYCA.50 defects that led Among the and Tillman to reach in Norcome judges in the followed procedures B. Several following: are conclusions such create 5010(e) studies preparation § from shielding the personnel “demon- risk of Youth Center A. understanding diagnostic personnel. dissenting views lack strated psy- reports of the clinical of the Youth Cor- individual goals substance] [and Parole scope chologists of stat- and Classification Act”47 and of rections 5010(e) participate in- who in § alternatives. For utory Officers only after typically prepared Of- stance, and Parole are the Classification studies Committee meets Tillman testified Classification who evaluated ficer group the court not know decides on that he did recommendation.51 finding temptation “no benefit” before This creates the must make to harmonize imposed.48 report can be individual one’s an adult the Commit- anyone Norcome, F.Supp. Has from the Q: 47. United States v. Office the Unit- Attorney (D.D.C.1974). Corporation ed States spoken you legal Counsel ever about the Hearing (hereinafter Transcript 48. Tillman 5010(e) criteria studies? 61; Norcome, TT) see also United States A: No. F.Supp. (D.D.C.1974). Hearing Transcript (hereinafter NT) Norcome report 49. The recommended that be Tillman 59-60. given an indeterminate sentence under 18 4208(a)(2). U.S.C. As a D.C.Code offender Norcome, 51. NT 162. See United States v. statutorily ineligible Tillman was sen- F.Supp. (D.D.C.1974). 375 mony The testi- provision. tenced under that See 6 of Section psychologist of the clinical who exam- 85-752, 86-70, Pub. L. as amended Pub. L. gives procedure ined Tillman some idea of the 144; 17(b), 1959, 73 § 86-624, June Stat. Pub. L. followed: 13(c), July 1960, 74 Stat. 413. you When do Q: first inform the chairman 50. The Norcome court found that Youth Cen- [of Classification Committee] the in- personnel ter demonstrated a “lack of train- you regard formation that particular have in ing expertise in the current status of the inmate? law” which contributed to “a maladministra- A: We might take turns. give C&P officer tion of the Youth Act." 375 at 275. findings, give mine, his I then would The Classification and Parole Officer on Nor- and we would it. discuss come’s Classification Committee testified as input yourself Would the Q: initial follows: meeting? chairman at this rule, you opin- Yes, As a are Q: made aware of A: the first time. Appeals regarding ions the Court of Where the Q: determination of Youth Act cases? would be made? normally A: We do learn about right. them. A: That’s you How do learn about them? Q: You would not Q: him have forwarded on to Normally through papers. any A: reports? you given copies Are opinions indicated, Q: themselves? A: reports No. As I are not written, usually, meeting. until after the No. A: notes, you How about Q: would have for- you given any Are any Q: legal instruction as to warded on to him notes he could read conducting criteria for stud- ahead of time? No, ies? usually A: not. A: No. you pattern Did follow Q: the same you legal Do have you access to Q: concerning advice Tillman case as would in particular contents of cases? study? Yes, A: we did. A: No. TT 197-98. Moreover, no group ing sentencing evaluation. recommendations. tee’s While Com- is taken Classification member transcript one Youth Center staff testified preserved meetings nor are notes hearing in the Norcome that he mittee did not Thus, it ex- meetings.52 weigh pending charges making from those at all in post hoc what tremely recommendations, learn difficult his two others indi meetings. exchanged at the charges views were cated that such are crucial to deciding on a recommendation.57 them in gain a full judge’s ability to The trial During hearings the Tillman the Admin understanding diag- of the views of all istrator of Lorton Center “I” can Youth personnel may compro- further nostic didly acknowledged that rec was in it mised—as Norcome— “are being ommendations made without the Classification Commiteee failure of criteria on an ad hoc Nor- basis.”58 significant potentially to submit back- come court explicitly trial found a “need with its recommenda- ground reports for uniform standards criteria to Progress Report and a Both tions. guide the corrections authorities pre report pre- on were Norcome vocational 5010e paring reports”.59 the § to the tri- pared; neither submitted al court.53 criteria, the absence of uniform E. In personnel vague the failure each Classifica- use

Finally, often Youth Center conclusory justify to read each re- recom- tion Committee member terms subjects issued over his name adult sentences. port mending “empty dissent. The terms such as also mask intra-Committee used Witnesses being examined Till- without able to ex- psychologist personality”60 clinical who general they commonly prac- man testified “it’s what meant. plain 5010(e)report and Parole conclusion that the tice the Classification offi- used § to write Committee evaluation a “need for more struc- cer defendant [the might was termed tured environment” recommendation] I see sent out before it.”54 court “a cliche that has no done and Norcome meaningful statement of find- place in Norcome, 5010(e) study In C. the Defendant ings whether or not on on which the false information contained participation in will derive benefit from relied mak- Classification programs.”61 Youth Act sentencing recommendation. ing adult 5010(e) study indicated The § F. The Norcome court found that charge pending another had defendant psychological none tests adminis- D.C. Administrators against him. 5010(e) subjects tered to been “[have] and the D.C. Board Parole Board of respect empirically validated adult sentenc- relied their Corrections measuring an capability individual’s pending ing recommendation programs.”62 benefit from Youth Act fact, charge had charge. pending No has apparently correlation been es- six before the weeks been dismissed performance between tablished 5010(e) report prepared.55 had been given diagnostic amenability test and Youth Act treatment. The Norcome D. personnel Youth Center “do not court found that the Classification Com- any uniform follow criteria”56 for mak 58. TT 461-62. 54-55, 234-35. NT 52. F.Supp. at 59. 375 293. Norcome, F.Supp. States 53. United (D.D.C.1974), 171. NT 41-51, See, g., The trial NT 68-72. 60. e. such terms in Norcome classified TT

54. 193. “severity personality”, “empty of the offense” personality” as cliches. and “bland Norcome, States 55. United F.Supp. at 273. (D.D.C.1974). Id. at 280. Id. at 281. 285; Id. at NT 622-24. 57. NT 480-81. despite background reports, “on test results relied sets of

mittee inability these recom- to members may the represent of mendations not the views or testimo- reports in their justify either even have been of—or read —each as a of results the ny employment person they appear. over whose name If [such] offender disqualifying for seriously basis we take the FYCA —as Act treatment.” sentencing Youth process must—the be must conducted in a keep- manner far more in Y ing with the criticál nature of poten- its consequences. tial cases, many In an FYCA sentence represents society’s last chance to re LEVENTHAL, Judge (concur- Circuit young claim offender from a life of ring result): in the degradation crime and to and redirect agree While I that the case must be energies his a productive toward diverge remanded for I resentencing, law-abiding participation society. in approach from the of the majority in us Act commits to deal with the criminal significant aspects. certain young people offenses of in something other than an exclusively punitive man begin sentencing transcript. I with the Moreover, ner. diagnostic the and treat imposing sentence, Before the trial court provided ment facilities the Act made the following statements: present an invaluable opportunity to The recommendation of it evalua- [the why youngsters learn these gone have report prepared tion according astray, whether and society how has 5010(e)] U.S.C. is that this Defend- them failed and what corrective meas ant be as sentenced an adult. The ures can taken to be avoid such failure Youth Center recommended future. It follows that the ex would be shorter du- [sic] significance traordinary FYCA64 possible ration as under the statute. 5010(e) necessitates that studies—the The Board of Parole concurs with upon informational basis which the court recommendation Youth Center rests its critical sentencing decisions—be subject staff that the be un- sentenced compiled with painstaking attention to procedure, der adult but does not rec- accurate and full disclosure of all rele ommend short They sentence. find vant considerations.65 history that the of his activities de- is disorganization monstrative of social The records in Norcome and Tillman reports impulsive and the indicate ac- dangers presented illustrate the aby sophisticated tion ori- criminally process in which individuals who are not ented individual for pro- whom the sufficiently aware of the provi- FYCA grams at the Youth Center are of du- sions use nonvalidated non-uniform crite- bious value and will not serve as there ria, vague conclusory language, and an is evident lack of amenability and inadequately verified information (Sent. 2-3.) motivation. Tr. sentencing make ad hoc recommenda- Court, finding tions. Transmitted the court with that this Defendant oriented, criminally is may significantly sophisticated what be incomplete judges 63. 375 ies will lead trial avoid burden scrutiny by simply refusing of such to order U.S.App. preparation In Haziel v. United more studies. We (1968), reject D.C. 404 F.2d 1275 this court the notion that the trial bench so will importance responsibilities. discharge grave noted the of “the divide between What is promise non-pu- 5010(e) the Juvenile Court with its not the called abandonment of § reports nitive rehabilitation and the harsher world of but rather the elimination of their development 5010(e) District Court.” Id. at 1278. As seen defects and of a § here, process highest quality. the “divide” between FYCA and adult Careful scruti- may just significant. ny by judges is critical to the achieve- goals. ment of these may emphasis It be said that our on the need for close examination of stud- world, sidered to adult, as an criminal ways possible long period of time shortest term for a for his has that he charge.” activities, But I cannot say criminal there is engaged had no doubt whatever as to premise occasions the benefit prior has intention judge. of the trial respond- that he not The doubt probation, slight, that have been even minimal. attempts Ordinarily, in ed such a case appellate Court further past; re- made Center, itself, has mand for findings clarification of the Youth of a finds that he is District Court. area of and finds that him Youth evaluated sentencing, however, for the benefits Corrections Act person the appropriate an Supreme not that he should Court has laid it and feels down of Act the Dorszynski the of the under terms United States1 that be sentenced Act; “an express finding that further finds of no and the Court benefit must be that also finds made on Dorszynski, Office the record”.2 In Probation the program in need the Court of a reversed a ruling of the Defendant appellate is of- the than that which court that the district structured court more that had made finding “by implication,” Youth Center and the by the fered Parole, likewise, concurs and held that a remand for of resentencing the Board required sen- findings and recommends when it is “unclear” whether in these the This Court is of the District wording adult. Court’s as an “meant the tence of fact that petitioner in view the believed to legally that be in- Center, itself, eligible indicated has treatment under the Act the Youth whether, realizing him as a would or he was that eligible, and that procedure deliberately nevertheless proper opted the be not the supply able to to sentence him as not be an adult.” Chief Jus- they would has; although Burger explained: the tice explicit “An he that find- needs ing petitioner that incarcera- that mere would not have recognizes bene- Court rehabilitative, never- fited from treatment under be may not Act tion theless, no would alternative have removed all doubt Court concern- 4-5.) ing (Sent. enlarged whether the Tr. discretion the statute. Con- provided gress to courts was unlikely the last most that I think it indeed exercised.”3 that the court deemed meant sentence finding to a required make legally itself While problem before us is not would not benefit that the defendant precisely the same as that created by the Act treatment. Youth Corrections wording of the trial judge in Dorszynski, probable that Indeed, I think it most Dorszynskis stress on the importance of in view of the meant that judge removing “all doubt” teaches me that Lorton Youth Center findings of even a scintilla of doubt occasions a re- clear, he overwhelmingly was .case mand for resentencing, not as time-con- suming as a remand for retrial, yet re- alternative. This no realistic had discretion, of an abdication not flected looming large in significance. judicial discretion—to exercise but an of on the record. a determination make disagree I majori- with so much of the transcript ty’s analysis a of on the dealing premise as rests areWe judge For the victim remarks, opinion. a written was not misin- oral formation. He was well aware point that he at one example, authority impose no Center’s recom- had to the Youth sentence referred imposed, be less than one that he the sentence would twen- “that mendation ty years its possible” imprisonment. while to life as He was duration of shorter too legally aware of the futile quality were “The recommendation exact words expression con- the classification his needs is board’s best fit that would Id. at 3044. 41 L.Ed.2d 855 Id. at 3053. was where material given the least missible adult defendant suggested by any or lodged, he submitted But was aware possible. used to introduce a and is indeed party, was not made the fact that conclusion where party; we if claim not made on a short sentence. And dependent opportunity no to the Government gave to test whether the classifica- he wanted comment, qualify; would have adhered to its contradict tion board . certainly basis recog- have no though even it had to where conclusion significant factual is- explicitly saying nize that no adult sentence there is no twenty possible, agency were years than sue. If an administrative less notice accomplish judicial concept this. to use had the means manner, indig- this court would such that, teaches however arbitrary.4 action condemn the nantly short-sighted a district may be puts proverb it that The French court, appellate view the the court blind, one-eyed man can realm power has neither tence, revise the sen- king. But for American authority nor insist that perspective vision and the full true judge provide a district statement of adversary proc- must abide the scene permit reasons. While does ess. consideration, appellate pointed some as judges may, While using proce- due Allen, out in United States v. dure, attend to sparked concerns -, App.D.C. -, 652, iden- 653 510 F.2d tified the testimony (1974), in I Norcome implication think the fair Tillman, our appellate should, opinion is court ap- Court’s inhibit view, my confine ruling that, itself to pellate judgments review of district court complying with our discerning for the mandate of purpose shortcom- resen- tencing, the District ings Judge underlying reasoning free to —and make the kind of inquiry what essentially majority opinion re- that other dis- judges trict have flects. found useful—without any intimation that it is an inquiry that Part IY of the court’s contains may required as a matter of law. material of much interest. I do not however, agree, ju that the doctrine of

dicial notice can be stretched pick up cases,

testimony in other working

of the Youth Center in reports, factual

establishing material available to appellate court to undercut an adult youthful

sentence for the offender in appellate this case. An may, UNITED STATES of America occasion, justice, “in the interest of provide disposition sound preceden questions law,” tial refer to factual Tyrone MARSHALL, Appellant. I. items lodged parties, though not No. 74-1495. part of the record—“where there is no significant factual issue.” United States United States Court Appeals, 331, v. Kearney, 328, 136 U.S.App.D.C. District of Columbia Circuit. 170, 420 F.2d 173 The court sees March judicial fit to take notice of the testimo ny presented in United States v. Nor

come, F.Supp. (D.D.C.1974), Tillman,

United States (D.D.C.1974). imper- I think this is 4. See (1973), Public Service New Commission 1069-1071 vacated (Texas remanded, York v. FPC Coast Gulf Area Natural U.S. Cases), U.S.App.D.C. 172, Gas Rate 198- L.Ed.2d

Case Details

Case Name: United States v. Conrad S. Dancy, (Two Cases)

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 2, 1975

Citation: 510 F.2d 779

Docket Number: 72--1452

Court Abbreviation: D.C. Cir.