510 F.2d 779 | D.C. Cir. | 1975
Lead Opinion
Appellant, Conrad Dancy, was convicted on September 23, 1971 of first degree
Dancy appealed both the conviction and the denial of FYCA sentencing. In a memorandum opinion issued on January 29, 1974, we disposed of all claims relating to his conviction.
I
Enacted in 1950, the Federal Youth Corrections Act was a Congressional response to the fact that persons between the ages of 18 and 22 were proportionately far over-represented in national crime statistics.
The sentencing alternatives available to a trial court under the FYCA are set out in 18 U.S.C. § 5010. If commitment is unnecessary, the trial judge may place the youth offender on probation. Other-
wise, he may sentence the youth to the custody of the Attorney General for treatment under the Act.
In order to insure that the trial judge’s sentencing decision be an informed one, Congress wisely provided in § 5010(e) of the Act that “[i]f the court desires additional information as to whether a youth offender will derive benefit from treatment [under the Act] it may order that he be committed . . . for observation and
study at an appropriate classification center or agency” and that “[w]ithin sixty days from the date of the order . the [Youth Services] Division shall report to the court its findings.”
II
The implementation of the sentencing provisions of the FYCA has been the subject of much litigation in this and other Circuits.
The Court was also careful to distinguish between “appellate modification of a statutorily-authorized sentence”
Staying well within the bounds of the appellate role described in Dorszynski, we conclude for reasons detailed in III, infra, that Dancy’s case must be remanded for resentencing.
Ill
A
In sentencing Dancy to an adult term, the trial judge commented as follows: “This court is of the opinion that in view of the fact that the Youth Center itself has indicated that sentencing him as a youth would not be the proper procedure and that they would not be able to supply the needs that he has; and although the Court recognizes that mere incarceration may not be rehabilitative, nevertheless, the Court has no alternative under the statute.” (Sent. Tr. 4-5). (emphasis added)
While a § 5010(e) report is a potentially useful pre-sentencing aid, it is designed only to provide “additional information as to whether a youth offender will derive benefit from treatment.”
B
The recommendation of the Youth Center’s § 5010(e) Classification Committee reveals another deficiency in the manner in which Dancy was sentenced. That recommendation — which the trial judge apparently believed al
The Classification Committee which conducted Dancy’s § 5010(e) study recommended that “Dancy should be sentenced as an adult with consideration for as short a term that is legally possible within the framework of this statute.” This mention of a short sentence may well have been an effort by the Committee to strike a compromise between recommending a youth sentence and a long term adult sentence. The desire for such a compromise apparently stemmed from the opinion of the clinical psychologist who examined Dancy that the appellant was not totally devoid of rehabilitative potential but rather “could benefit from psychotherapy as well as vocational training and additional education.” In his individual report, the clinical psychologist recommended sentencing as an adult “with the shortest term possible for his charge.”
What was apparently unknown to the members of the Classification Committee — including the clinical psychologist— was that the trial judge had absolutely no discretion to give Dancy a short adult sentence. The mandatory minimum sentence for first degree murder, the central crime for which Dancy was convicted, is twenty years imprisonment with no possibility of parole.
It is at least uncertain what the Classification Committee would have recommended had it known that an adult sentence for Dancy meant a definite term of imprisonment of at least twenty years. It would appear from the clinical psychologist’s expressed concern that as likely as not he would have found such a mandatory minimum term inconsistent with the benefits he thought Dancy could derive from “psychotherapy, vocational training and additional education.” At any rate it would be “callous”
So far as the record before us is concerned, it would appear that the trial judge failed to exercise his discretion in sentencing Dancy and that he placed full reliance on a recommendation which itself may have been the product of misinformation. Given these factors, we must remand this case for resentencing.
IV
The apparent reliance of the Classification Committee on the erroneous premise that Dancy was eligible for a short sentence may well not be the only defect in his § 5010(e) study. Since Dancy was sentenced, District Court proceedings on the conduct of § 5010(e) studies have been held in the cases of United States v. Norcome
The Norcome hearing was held after two § 5010(e) studies conducted at Lorton had recommended that the defendant be given an adult sentence. During the course of the hearing, however, every one of the officials who had originally participated in making the adult recommendations reversed his original position that Youth Act treatment was not appropriate for Norcome.
In Tillman, the trial judge sentenced the defendant to an adult term on the basis of a § 5010(e) report recommendation. While the case was on appeal the record was remanded on Tillman’s motion to allow the trial judge to recommit him for an updated § 5010(e) study. That report also recommended adult sen-fencing. However, on the basis of hearings held on the conduct of both studies, the trial judge reversed his original position and, contrary to the § 5010(e) study recommendations, imposed sentence under the FYCA.
These reversals of position make plain the crucial nature of the information generated at the Norcome and Tillman hearings. Uncovered at the hearings were a number of concrete and profoundly disturbing defects in the conduct of the Norcome and Tillman § 5010(e) studies. There is no reason to believe from the testimony at the hearings that these defects were anything other than systemwide — affecting Dancy’s study and, indeed, every § 5010(e) study conducted at Lorton. The trial judges in Norcome and Tillman clearly perceived the problems as extending considerably beyond the particular cases before them. In Norcome, the trial court concluded that the “5010(e) diagnostic system [is a] farce” which provides courts with “inaccurate, erroneous and wholly misleading § 5010(e) reports and recommendations.”
Among the defects that led the trial judges in Norcome and Tillman to reach such conclusions are the following:
A. Youth Center personnel “demonstrated a lack of understanding of the goals [and substance] of the Youth Corrections Act”
B. Several procedures followed in the preparation of § 5010(e) studies create the risk of shielding the trial judge from dissenting views of diagnostic personnel. The individual reports of the clinical psychologists and Classification and Parole Officers who participate in § 5010(e) studies are typically prepared only after the Classification Committee meets and decides on its group recommendation.
The trial judge’s ability to gain a full understanding of the views of all diagnostic personnel may be further compromised — as it was in Norcome — by the failure of the Classification Commiteee to submit potentially significant background reports with its recommendations. Both a Progress Report and a vocational report on Norcome were prepared; neither was submitted to the trial court.
Finally, the failure of each Classification Committee member to read each report that is issued over his name may also mask intra-Committee dissent. The clinical psychologist who examined Tillman testified that “it’s the general practice of the Classification and Parole officer to write [the Committee evaluation and recommendation] and it might be done and sent out before I see it.”
C. In Norcome, the § 5010(e) study contained false information on which the Classification Committee relied in making its adult sentencing recommendation. The § 5010(e) study indicated that the defendant had another charge pending against him. Administrators of the D.C. Board of Parole and the D.C. Board of Corrections relied in their adult sentencing recommendation on this pending charge. In fact, the pending charge had been dismissed six weeks before the § 5010(e) report had been prepared.
D. Youth Center personnel “do not follow any uniform criteria”
E. In the absence of uniform criteria, Youth Center personnel often use vague and conclusory terms to justify recommending subjects for adult sentences. Witnesses used terms such as “empty personality”
F. The Norcome court found that none of the psychological tests administered to § 5010(e) subjects “[have] been validated empirically with respect to measuring an individual’s capability to benefit from Youth Act programs.”
Y
In many cases, an FYCA sentence represents society’s last chance to reclaim a young offender from a life of crime and degradation and to redirect his energies toward a productive and law-abiding participation in society. The Act commits us to deal with the criminal offenses of young people in something other than an exclusively punitive manner. Moreover, the diagnostic and treatment facilities provided for by the Act present an invaluable opportunity to learn why these youngsters have gone astray, whether and how society has failed them and what corrective measures can be taken to avoid such failure in the future. It follows that the extraordinary significance of the FYCA
The records in Norcome and Tillman illustrate the dangers presented by a process in which individuals who are not sufficiently aware of the FYCA provisions use nonvalidated non-uniform criteria, vague and conclusory language, and inadequately verified information to make ad hoc sentencing recommendations. Transmitted to the court with what may be significantly incomplete sets of background reports, these recommendations may not represent the views of — or even have been read by — each person over whose name they appear. If we take the FYCA seriously — as we must — the sentencing process must be conducted in a manner far more in keeping with the criticál nature of its potential consequences.
. 22 D.C.Code § 2401.
. The lesser offenses were second degree murder (22 D.C.Code § 2403), attempted robbery while armed (22 D.C.Code §§ 2902, 3202), and carrying a pistol without a license (22 D.C.Code § 3204).
. Testimony at trial indicated that on July 6, 1970 William Darden, his eight year old daughter, a woman named Christine Tyson and several of her children were en route in Darden’s car from North Carolina to Darden’s home in New Haven, Connecticut. They drove into the District of Columbia sometime in the early morning hours and stopped at the Bar 20 Carryout on Kenilworth Avenue, N.E. Darden entered the carryout alone. As he bought some food, a Mr. Henson approached and asked him for a quarter. When Darden refused, Henson left the carryout. On leaving, Henson saw Dancy who was standing outside with some companions. Henson asked Dancy what he was doing in the area. Dancy replied that “he was trying to make some money.” Henson also heard Dancy say that “he went down to make some money and he was going to rob a man.” During this conversation, Darden left the carryout, went to his car, reentered the carryout and returned once again to his car. While sitting in his car, Darden was approached by Dancy who put a gun to his head. Darden got out of the car and exchanged words with Dancy. Dancy pushed Darden out of the way and backed to the street. Darden followed, whereupon Dancy shot him.
. 18 U.S.C. §§ 5005-5026.
. The trial judge noted that the commitment was “for a further study and analysis so far as psychological and psychiatric circumstances and whether or not the defendant can benefit from the provisions of the Youth Corrections Act in the event that should serve to be the answer.”
. In that opinion we rejected Dancy’s challenges to his first degree murder conviction and his conviction for carrying a pistol without a license. We vacated his sentence on the second degree murder conviction on the basis of Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1233 n. 52 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). We also vacated his conviction for attempted robbery while armed since it was the underlying felony of his felony murder conviction. United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974).
. The House of Representatives Judiciary Committee Report on the proposed Federal Youth Corrections Act indicated that “[p]ersons 16 to 23, inclusive [the age to be covered by the proposed Act] constitute 20 percent of our population above the age 15 (based on 1940 census figures) but they are responsible for 47.3 percent of our robberies; they constitute 55.4 percent of our apprehended burglars, and 63.1 percent of our automobile thieves.” H.R.Rep.No.2979, 81st
. “Sociologists and psychiatrists tell us that special causations which occur in the period between adolescence and manhood are, in a large measure, responsible for antisocial conduct trends manifested by persons in that age group.” H.R.Rep.No.2979, 81st Cong., 2d Sess., 2, U.S.Code Cong. Serv. 1950, p. 3984.
. United States v. Waters, 141 U.S.App.D.C. 289, 291, 437 F.2d 722, 724 (1970).
. 18 U.S.C. § 5011. “Treatment” is broadly defined in the statute as “corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders”. 18 U.S.C. § 5006(g). The treatment actually provided in Youth Act facilities such as the Lorton Youth Center includes educational and vocational training as well as some psychiatric and psychological counseling. In a letter to the District Court, the Director of the D.C. Department of Corrections explained that:
The Youth Center is an institution designed to provide resources and opportunities which enable a youth to improve his academic standing, develop a marketable skill and to deal with the emotional problems which he presents.
United States v. Ward,-337 F.Supp. 185, 193 (D.D.C.1971).
. 18 U.S.C. § 5011. The FYCA also provides that when a youth offender sentenced under its provisions is discharged “before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside.” 18 U.S.C. § 5021. This promise of expungement is an important one. “The stigma of a criminal conviction may itself be a greater handicap in later life than an entire misspent youth.” Bazelon, Racism, Classism, and the Juvenile Process, 53 Judicature 373, 373 (1970).
. As for duration of treatment, the Act provides two alternatives. If sentenced under 18 U.S.C. § 5010(b), a young offender must be unconditionally discharged no later than six years after the date of his conviction. 18 U.S.C. § 5017(c). If 18 U.S.C. § 5010(c) is invoked by the trial judge, the six year ceiling does not apply and unconditional discharge can occur any time up to “the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction.” 18 U.S.C. § 5017(d).
. 18 U.S.C. § 5010(d).
. The outline provided here of the § 5010(e) process is based largely on the written responses of the Assistant Director of the D.C. Department of- Corrections to questions posed by the trial court in United States v. Tillman, 374 F.Supp. 215 (D.D.C.) (responses filed Jan. 2, 1974). See also United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200, 1203 (1973).
. E. g., United States v. Coefield, 155 U.S. App.D.C. 205, 476 F.2d 1152 (1973) (en banc); Williams v. United States, 476 F.2d 970 (3d Cir. 1973); Brooks v. United States, 497 F.2d 1059 (6th Cir. 1974); Cox v. United States, 473 F.2d 334 (4th Cir. 1973).
. 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).
. United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152, 1156 (1973) (en banc.)
. Prior to Dorszynski this circuit had required that a statement of reasons accompany a trial judge’s finding of “no benefit.” United States v. Reed, 155 U.S.App.D.C. 198, 476 F.2d 1145, 1149-1150 (1973); United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152, 1157 (1973).
. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3050, 41 L.Ed.2d 855 (1974).
. Id. at 3052. The four justices who joined in a separate opinion concurring in the result reached by the majority point to several policies other than the “facilitat[ion of] appellate supervision” that, according to them, would be served by a statement of reasons. They assert that such a statement might a) “con
. This court has recently recognized that role in United States v. Allen, 166 U.S.App.D.C. -, 510 F.2d 651 at 652-653 (1974).
. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3047 n. 7, 41 L.Ed.2d 855 (1974).
. 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Latimer, 415 F.2d 1288 (6th Cir. 1969); see also Coleman v. United States, 123 U.S.App.D.C. 103, 357 F.2d 563 (1965) (en banc).
. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974) quoting from United States v. Hartford, 489 F.2d 652, 654 (5th Cir. 1974).
. Id. (emphasis in original).
. Id.
. See United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968).
. Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
. Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264, 266 (1969); see also United States v. Wiley, 267 F.2d 453 (7th Cir. 1959).
. See Leach v. United States, 118 U.S.App.D.C. 197, 334 F.2d 945 (1964); see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences § 3.2(ii) (1968) (“The authority of the reviewing court with respect to the sentence should specifically extend to review of . the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.”).
. United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968).
. 18 U.S.C. § 5010(d) (emphasis added). Nor does the trial judge’s apparent surrender of his discretion to Youth Center authorities find any support in Dorszynski. “Literal compliance with the [FYCA’s ‘no benefit’ requirement] can be satisfied'by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.” Dorszynski v. United States, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974) (emphasis added).
The “no alternative” language is not the only shortcoming in the sentencing proceeding. Nowhere in the sentencing transcript is there any explicit finding by the trial judge— as required by Dorszynski — that Dancy will not benefit from Youth Act treatment. In summarizing the § 5010(e) and presentence reports, it is true that the trial judge mentioned — without explicitly adopting — their negative conclusions that “Dancy is not an appropriate person for the benefits of the Act” and that “he is in need of a program more structured than that which is offered by the Youth Center.” The trial court itself found, inter alia, that the “[djefendant is criminally oriented and sophisticated in the ways of the world.” However, particularly in light of the trial judge’s subsequent “no alternative” language, none of these conclusions amount to an explicit finding by him that Dancy would “not derive benefit from treatment under the Act.”
Our experience demonstrates the wisdom of the Supreme Court’s refusal to leave the “no benefit” finding to implication. In United States v. Van Buren, No. 72-1605 (D.C.Cir., Oct. 2, 1974), the trial judge relied on a host of negative findings in the defendant’s § 5010(e) report to deny sentencing under the FYCA. Nevertheless, we remanded because of the judge’s failure to make an explicit “no benefit” finding. On remand, the same trial judge — unable to make that finding — sentenced Van Burén to a Youth Act term.
. 18 U.S.C. § 5010(e).
. As discussed below, pages 14-21 infra, such inquiry has on occasion proven extremely valuable and revealing.
While no § 5010(e) examination was administered to the appellant in Dorszynski, Justice Marshall’s separate opinion treats the problem of the weight to be given such examinations: “[T]he Act clearly intended that the ultimate sentencing decision remain with the trial judge. That decision should not pass by abdication to the correctional authorities who prepare the § 5010(e) study. Thus, where a trial judge secures a § 5010(e) report, he should adopt its reasons as his own only after assuring himself of the adequacy of the report and propriety of its recommendation.” Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3060, 41 L.Ed.2d 855 (1974).
. “Notwithstanding any other provision of law, a person convicted of first degree murder shall be eligible for parole only after the expiration of twenty years from the date he commences to serve his sentence.” 22 D.C.Code § 2404.
. The Committee’s literal recommendation of “as short a sentence that is legally possible within the framework of the statute” could of course be followed. However, the recommendation — particularly if based on Dancy’s rehabilitative potential — clearly implies an assumption by the Classification Committee that Dancy is statutorily eligible for a “short” sentence [i. e. one far less than twenty years].
. See United States v. Tucker, 404 U.S. 443, 449 n. 8, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
. 375 F.Supp. 270 (D.D.C.1974) (hearings conducted on Feb. 11-12, 1974 and March 21, 1974).
. 374 F.Supp. 215 (D.D.C.1974) (hearings conducted on December 28, 1973 and January 2, 1974).
. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974).
. Scott v. United States, 135 U.S.App.D.C. 377, 379, 419 F.2d 264, 266 (1969).
. For our authority to notice the records of other litigation, see Gomez v. Wilson, 155 U.S.App.D.C. 242, 477 F.2d 411, 416 n. 28 (1973) (notice taken of citizens’ affidavits filed in other litigation alleging police harassment); Zahn v. Transamerica Corp., 162 F.2d 36, 48 n. 20 (3rd Cir. 1947) (notice taken of pleadings in state case to establish whether it was derivative action); Allen v. State Board of Education of North Carolina, 55 F.R.D. 350, 353 (M.D.N.C.1972), aff’d 473 F.2d 906 (4th Cir. 1973) (notice taken of decisions and findings of fact in other desegregation litigation to determine need for relief in the instant case). Our reference here to the records in Norcome and Tillman is not meant to establish as factual the testimony presented therein. See Opinion of Judge Leventhal, concurring in the result, page 790 infra. Rather, it is for the purpose of noting that the testimony and judicial findings in those cases appear to be sufficiently relevant to the issues in the present case to warrant inquiry on the remand we already require. For us to totally ignore Norcome and Tillman would be another act of that “blind court” that does not see what “all others can see and understand.” United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543. 545, 97 L.Ed. 770 (1953).
. Indeed, Norcome and Tillman are not the first occasions on which District Judges have expressed dissatisfaction with the quality of the § 5010(e) reports compiled by the Lorton Youth Center. In United States v. Alsbrook, 336 F.Supp. 973 (D.D.C.1971), Judge Gesell noted that “the Court is not receiving the type of thorough, knowledgeable report which the Court requires to exercise its responsibilities under the Act.” Id. at 975.
. 375 F.Supp. at 275. The court found that “[t]he record of the hearing reflects administrative practices in the diagnostic examination of youth offenders that border on extreme governmental dereliction of Congressionallymandated responsibilities under the Act.” Id. at 274.
. United States v. Norcome, 375 F.Supp. 270, 277 (D.D.C.1974).
. Tillman Hearing Transcript (hereinafter TT) 61; see also United States v. Norcome, 375 F.Supp. 270, 278 (D.D.C.1974).
. The report recommended that Tillman be given an indeterminate sentence under 18 U.S.C. § 4208(a)(2). As a D.C.Code offender Tillman was statutorily ineligible to be sentenced under that provision. See Section 6 of Pub. L. 85-752, as amended by Pub. L. 86-70, § 17(b), June 25, 1959, 73 Stat. 144; Pub. L. 86-624, § 13(c), July 12, 1960, 74 Stat. 413.
. The Norcome court found that Youth Center personnel demonstrated a “lack of training and expertise in the current status of the law” which contributed to “a maladministration of the Youth Act." 375 F.Supp. at 275. The Classification and Parole Officer on Nor-come’s Classification Committee testified as follows:
Q: As a rule, are you made aware of opinions by the Court of Appeals regarding Youth Act cases?
A: We do normally learn about them.
Q: How do you learn about them?
A: Normally through the papers.
Q: Are you given copies of the opinions themselves?
A: No.
Q: Are you given any instruction as to the legal criteria for conducting § 5010(e) studies?
A: No.
Q: Do you have access to legal advice concerning the contents of a particular study?
A: No.
Q: Has anyone from the Office of the United States Attorney or the Corporation Counsel ever spoken to you about the legal criteria for § 5010(e) studies?
A: No.
Norcome Hearing Transcript (hereinafter NT) 59-60.
. NT 162. See United States v. Norcome, 375 F.Supp. 270, 276 (D.D.C.1974). The testimony of the clinical psychologist who examined Tillman gives some idea of the procedure followed:
Q: When do you first inform the chairman [of the Classification Committee] of the information that you have in regard to a particular inmate?
A: We take turns. C&P officer might give his findings, and then I would give mine, and we would discuss it.
Q: Would the initial input from yourself to the chairman be at this meeting?
A: Yes, the first time.
Q: Where the determination of sentencing would be made?
A: That’s right.
Q: You would not have forwarded on to him any reports?
A: No. As I indicated, the reports are not written, usually, until after the meeting.
Q: How about notes, would you have forwarded on to him any notes he could read ahead of time?
A: No, usually not.
Q: Did you follow the same pattern in the Tillman case as you would in any other cases?
A: Yes, we did.
TT 197-98.
. NT 54-55, 234-35.
. United States v. Norcome, 375 F.Supp. 270, 274 (D.D.C.1974), NT 171.
. TT 193.
. United States v. Norcome, 375 F.Supp. 270, 274, 282 (D.D.C.1974).
. Id. at 281.
. NT 407, 480-81.
. TT 461-62.
. See, e. g., NT 41-51, 68-72. The trial court in Norcome classified such terms as “empty personality”, “severity of the offense” and “bland personality” as cliches. 375 F.Supp. at 273.
. Id. at 280.
. Id. at 285; NT 622-24.
. In Haziel v. United States, 131 U.S.App. D.C. 298, 404 F.2d 1275 (1968), this court noted the importance of “the divide between the Juvenile Court with its promise of non-punitive rehabilitation and the harsher world of the District Court.” Id. at 1278. As seen here, the “divide” between FYCA and adult sentencing may be just as significant.
. It may be said that our emphasis on the need for close examination of § 5010(e) studies will lead trial judges to avoid the burden of such scrutiny by simply refusing to order the preparation of any more studies. We reject the notion that the trial bench will so discharge its grave responsibilities. What is called for is not the abandonment of § 5010(e) reports but rather the elimination of their defects and the development of a § 5010(e) process of the highest quality. Careful scrutiny by trial judges is critical to the achievement of these goals.
Concurrence Opinion
(concurring in the result):
While I agree that the case must be remanded for resentencing, I diverge from the approach of the majority in certain significant aspects.
I begin with the sentencing transcript. Before imposing sentence, the trial court made the following statements:
The recommendation of it [the evaluation report prepared according to 18 U.S.C. § 5010(e)] is that this Defendant be sentenced as an adult. The Youth Center recommended that the sentence would be of shorter [sic] duration as possible under the statute. The Board of Parole concurs with the recommendation of the Youth Center staff that the subject be sentenced under adult procedure, but does not recommend a short sentence. They find that the history of his activities is demonstrative of social disorganization and the reports indicate impulsive action and a sophisticated criminally oriented individual for whom the programs at the Youth Center are of dubious value and will not serve as there is an evident lack of amenability and motivation. (Sent. Tr. 2-3.)
The Court, finding that this Defendant is criminally oriented, sophisticated in*791 the ways of the criminal world, and that he has for a long period of time engaged in criminal activities, that he has on prior occasions had the benefit of probation, that he has not responded to the attempts that have been made in the past; the Court further finds that the Youth Center, itself, has evaluated him and finds that he is not an appropriate person for the benefits of the Act and feels that he should not be sentenced under the terms of the Act; and the Court further finds that the Probation Office also finds that the Defendant is in need of a program more structured than that which is offered by the Youth Center and that the Board of Parole, likewise, concurs in these findings and recommends sentence as an adult. This Court is of the opinion that in view of the fact that the Youth Center, itself, has indicated that sentencing him as a youth would not be the proper procedure and that they would not be able to supply the needs that he has; and although the Court recognizes that mere incarceration may not be rehabilitative, nevertheless, the Court has no alternative under the statute. (Sent. Tr. 4-5.)
I think it most unlikely that the last sentence meant that the court deemed itself legally required to make a finding that the defendant would not benefit from Youth Corrections Act treatment. Indeed, I think it most probable that the trial judge meant that in view of the findings of the Lorton Youth Center the .case was overwhelmingly clear, that he had no realistic alternative. This reflected not an abdication of discretion, but an exercise of judicial discretion — to make a determination on the record.
We are dealing with a transcript of oral remarks, not a written opinion. For example, at one point the trial judge referred to the Youth Center’s recommendation “that the sentence would be of shorter duration as possible” while its exact words were “The recommendation that would best fit his needs is considered to be sentencing as an adult, with the shortest term possible for his charge.” But I cannot say that there is no doubt whatever as to the premise or intention of the trial judge. The doubt is slight, even minimal. Ordinarily, in such a case an appellate court may remand for clarification of findings of a District Court. In this area of Youth Corrections Act sentencing, however, the Supreme Court has laid it down in Dorszynski v. United States
While the problem before us is not precisely the same as that created by the wording of the trial judge in Dorszynski, Dorszynskis stress on the importance of removing “all doubt” teaches me that even a scintilla of doubt occasions a remand for resentencing, not as time-consuming as a remand for retrial, yet looming large in significance.
I disagree with so much of the majority’s analysis as rests on the premise that the trial judge was the victim of misinformation. He was well aware that he had no authority to impose a sentence less than the one that he imposed, twenty years to life imprisonment. He was aware too of the legally futile quality of the classification board’s expression that
Dorszynski teaches that, however short-sighted a district judge may be in the view of the appellate court, the court has neither the power to revise the sentence, nor the authority to insist that the district judge provide a statement of reasons. While Dorszynski does permit some appellate consideration, as pointed out in United States v. Allen, 166 U.S. App.D.C. -, -, 510 F.2d 652, 653 (1974), I think the fair implication of the Supreme Court’s opinion is to inhibit appellate review of district court judgments for the purpose of discerning shortcomings in underlying reasoning — and that is essentially what the majority opinion reflects.
Part IY of the court’s opinion contains material of much interest. I do not agree, however, that the doctrine of judicial notice can be stretched to pick up testimony in other cases, on the working of the Youth Center in its reports, as establishing factual material available to the appellate court to undercut an adult sentence for the youthful offender in this case. An appellate court may, on occasion, “in the interest of justice, and to provide sound disposition of precedential questions of law,” refer to factual items lodged by the parties, though not part of the record — “where there is no significant factual issue.” United States v. Kearney, 136 U.S.App.D.C. 328, 331, 420 F.2d 170, 173 (1969). The court sees fit to take judicial notice of the testimony presented in United States v. Norcome, 375 F.Supp. 270 (D.D.C.1974), and United States v. Tillman, 374 F.Supp. 215 (D.D.C.1974). I think this is impermissible where the material was not lodged, submitted or suggested by any party, and is indeed used to introduce a claim not made by a party; where we gave no opportunity to the Government to comment, contradict or qualify; and where we certainly have no basis for saying there is no significant factual issue. If an administrative agency were to use the concept of judicial notice in such a manner, this court would indignantly condemn the action as arbitrary.
While judges may, using due procedure, attend to concerns sparked or identified by the testimony in Norcome and Tillman, our appellate court should, in my view, confine itself to ruling that, in complying with our mandate of resentencing, the District Judge is free to make the kind of inquiry that other district judges have found useful — without any intimation that it is an inquiry that may be required as a matter of law.
. 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).
. Id. at 3044.
. Id. at 3053.
. See Public Service Commission of New York v. FPC (Texas Gulf Coast Area Natural Gas Rate Cases), 159 U.S.App.D.C. 172, 198-200, 487 F.2d 1043, 1069-1071 (1973), vacated and remanded, 417 U.S. 964, 94 S.Ct. 3167, 41 L.Ed.2d 1136 (1974).
