*1
by majori-
petition
applicants.
for reconsideration
We see no valid foundation
delay
Typical-
ty
Board,
of the
and that
until a
a claim of entitlement.
being
ly,
parties
five-man
came into
was con-
all
are aware of what routes
board
split
being sought
They
sequently required
Board
are
when the
whom.
rehearing.
argue,
alternative,
petition
possibly
can
2-2 on its
granted operat-
point.
find
In Braniff
if
no merit
in this
such routes are
Airways
necessary
pre-
CAB,
U.S.App.D.C.
ing
v.
restrictions will be
Indeed,
(1967),
it would
we found a Board
vent undue diversion.
J.A. had suffi general
ciently approach in indicated its UNITED STATES America taken terms of the factors that were necessarily into entailed account. This judgment part in its on the of the CAB AMMIDOWN, Appellant. Robert Louis any partic heft of the various factors required indeed, ular It UNITED ease. STATES America — pro well been unable —to have quantifying defi duce a formula as the AMMIDOWN, Appellant. Robert L. said, approach. nition of its It 72-1694, Nos. 72-1695. indeed, formula, over that American’s Appeals, United States Court of simplified, merely service that the less District Columbia Circuit. offered, result. the less diversion will Argued although however, Nov. Board, go diversion, to consider was entitled Decided Nov. beyond applicant that caused Rehearing May 10, Denied the carrier least diversion and select proffered service to the the most public. Airlines asserts that
National of its determination
it was entitled to a *2 D.C., F.Supp.
See also *3 Ahern, Jr.,
Albert J. and Thomas W. Farquhar, Washington, C.,D. on appellant. the motion for Wilson, Washington, C., John J. D. was on motion as amicus curiae in support of District Court. Titus, Jr., Atty., Harold H. U. S. John A. Sharp, Terry, and James E. Asst. U. Attys., S. appel- were on the motion for lee. BAZELON, Judge, Before Chief LEVENTHAL, TAMM and Circuit
Judges. LEVENTHAL, Judge: Circuit In this unusual case the trial rejected bargain struck between prosecution and the defense ground that the interest greater that the defendant be tried aon charge. presented, Under facts judge hold that exceeded his accordingly discretion and reverse. I. notoriety, extraordinary a case of charged Robert Ammidown L. conspiracy murder and murder in the death his
commit
wife.
pre-
Ammidown admitted that a month
arranged
vious he
to have her murdered
parking
Virginia
garage
at a
of a
de-
partment
At
store.
the last minute he
prosecution
another
changed
mind,
to be involved in
he did not
because
his
accompany
son,
his murder.
was to
who
want
day,
the mur-
to witness
mother
however,
judge,
refused
according
Subsequently,
to his
der.
agreement
accept
approve
confession,
Ammidown and
written
understanding
plea.
With full
lesser
associate,
Anthony Lee, devised
Richard
impor-
prosecutor’s
with the
concern
whereby
plan
Mrs.
Lee would abduct
agreement in con-
Ammidown’s
tance of
to her
ex-
life
Ammidown
threat
prosecution
nection with its successful
money
used Am-
tort a sum of
to be
Lee,1
nonetheless decided
the court
pay-
the down
and Lee to make
midown
Rules
under Rule
of the Federal
Shore
ment
on the Eastern
for a club
it had
discre-
of Criminal Procedure
plan
Ammi-
Maryland.
called
it found
tion
refuse the
when
dinner at the
wife to
down
take his
and the
that the crime was so heinous
*4
Flagship
in Southwest
Restaurant
guilt
overwhelming that
of
evidence
so
they
Washington.
dinner,
After
as
by
be ill-served
the
interest would
Flagship,
departing
Lee would
from the
murder,
degree
judgment
a
of second
specified in-
a
halt Ammidown’s ear at
“tap
a
on the
referred to as
which it
tersection
the restaurant.
near
pleaded not
Appellant
then
wrist.”2
course,
degree
degree
guilty
In due
first
and
And so it was done.
to
second
jumped
prearranged spot,
murder;
Lee
of
at the
he was convicted
and
degree
him
felony
car
directed
murder
into Ammidown’s
and
first
murder and
Capitol
im-
drive
the East
Street
and
life
to
Bridge,
to
sentenced to two terms of
dragged
consecutively.
Ammi- prisonment,
where
Mrs.
to
Lee
run
raped her, as
from the car and
down
Appellant now
the failure
asserts that
planned,
impress
Ammidown
Mrs.
proffered
accept
the trial
of
plea
court to
the
“with
seriousness
the threat.”
of
degree
guilty
murder
of
second
error,
asks
constituted
and
reversible
happened
Lee
was that
What
then
this
remand with instructions
court to
Ammidown did
killed Mrs. Ammidown.
degree
judgment
of second
enter a
complicity
the murder.
not confess to
decided
has
murder.
Government
prior
trial, the United States
Just
good
op-
conscience
it could not
Attorney
into
and Ammidown entered
po-
pose
appellant; consequently, the
the
agreement:
plead
Ammidown would
ably
of
has been
sition
murder,
guilty
degree
the
and
to second
presented
Wilson, Esquire,
by John J.
charge
would be
first
appointed by
who
this court
agreement for
was no
dismissed. There
filing
purpose
curiae
“amicus
for the
prosecutor
to recommend
supporting
position
a memorandum
imprison-
maximum, life
less than the
judge.”
taken
the district
aged 49,
no
Ammidown, then
had
ment.
being
possibility
considered
even
II.
agreed
years.
parole for
Ammidown
15
Crimi-
proceedings
Rule
of the Federal Rules of
testify
grand jury
11
governs pleading in crim-
Lee,
nal
impending
Procedure3
a much
and
trial of
cases;
we to
inal
err were
younger
but we would
man,
who was believed
plea
determining
personally
1. Tr. S-41.
understanding
voluntarily
is made
with
2. Tr. S-42.
charge
conse-
and the
the nature
quences
plea.
If a defendant
refus-
3. Rule 11
Rules of Criminal
of the Federal
plead
ac-
provides
refuses
or if the court
:
es to
Procedure
as follows
cept
plea
guilty
may plead
guilty, guilty
cor-
if a
a
defendant
A defendant
poration
appear,
court,
or,
shall
fails
the court
nolo
with the consent of
guilty.
plea
may
The court
enter
a
of not
refuse
ac-
contendere.
The court
to
accept
plea
judgment upon
plea
cept
guilty,
a
enter
shall not
a
a
shall not
guilty
a
plea
plea
is
there
unless
is satisfied
nolo contendere
or a
plea.
addressing
basis for the
defendant
factual
without
narrowly.
inquiry
has
plea
circumscribe our
so
concluded
a
tendered under
bargaining
telescopes
into one
Plea
these circumstances is valid where there
stages
strong
distinct
transaction three
evidence of the defendant’s
plea
proceeding:
guilt,
one
criminal
North
Alford,
Carolina v.
400 U.S.
one;
greater
charge;
of a
dismissal
(1970).
case is not de- dismissed as to a fendant but he has received a substan- D. phase tial of the same haveWe identified that the Dis- both offense.14 And of course that is the sit- Judge trict Attor- the United States uation that is involved when there is no ney plea bargaining have roles in the simpliciter, plea dismissal but a process. isWhat is an effort guilty to a lesser included offense like responsibilities, their harmonize second murder. suggest determining a standard for particular significance Of prop- case when intervention at bar is that even a court which would er. accept unexplained motion presumption start with the determined, dismissal on reconsidera- the determination of the United tion, pros- that it was satisfied with the Attorney is to be followed States subsequent explanation ecutor’s overwhelming He number of cases. prejudice likely be worked position evaluate the alone is in a the Government in another criminal government’s prosecution resources and action.15 prose number eases it able Fleming, 215 cute. United States v. See C. (D.C.App.1966). A.2d bargain third element aof involving to a vigorous prosecution lesser included of- of one Where fense, frequent and indeed the most mo- successful threatens to undermine it, tive behind another, is to prosecution circumscribe it has tradition- *7 judge’s pronouncing discretion in prosecutor ally sen- determines been who the Newman, tence. conclusion, See D. pressed Conviction 105 to which case will be (1966). negotiated plea great The given reduces the his has been and decision upper range g., and See, lower by limits of the of deference the courts. e. judge. Shanahan, F.Supp. available to the It United States v. that, axiomatic within (S.D.Ind.1959). the im- limits Blouse, supplied See United States v. Greater Skirt the examination of documents Assn., supra jus- & Neckwear Government, Contractors note these the court stated that 7, at 489. the conclusion that tified the Government’s justice enforcement interest of and law Bettinger Corporation, States promoted by than dismissal would be better (D.Mass.1971). F.R.D. 40 trial, the dismissal and further noted that “disgrace” accompanied by to de- the 41, quoting point 14. Id. at on this from Unit- supplied by the evi- the reference to fendant Doe, supra ed States v. note 10. public guilt in the dence of Government’s suggestion for dismissal. disclosure its Shanahan, supra 15. United States v. note F.Supp. Becker, United States F.Supp. at 230. (W.D.Mo.1963). approving In another a decision dismissal perjury notwithstanding Wright of a am- Pro- indictment Practice and C. Federal See ple guilt, following parte (1969). evidence of an ex cedure ruling hand, prosecutor the do that On other the has abused 48(a) requirement judi- intends the trial court think Rule discretion. The stamp approval merely judge cial a entitles to serve as rubber the obtain to agree prosecutor’s prosecutor’s We decision. evaluate the the reasons. indeed, much, proposed by that That should be satisfied the that “the agreement adequately protects Supreme Advisory Committee, the the and the supra, Newman, public obviously did not Court’s amendment interest”. 136; Challenge proposed authority in curtail The of Crime a Free the judge. judge may approv- Society: Report the President’s Com The withhold al & Admin if he that has mission Law Enforcement finds the on give failed factors consideration to istration of Justice 118 given that must be consideration what, view, now state our are We interest, public the de- factors such as governing appropriate trial the doctrines aspects law. terrent criminal deny considering judges in whether However, judges not free are approval cases either to dismissals of approval guilty pleas on this withhold outright to the diluted dismissal —a or merely conception of basis because their guilty plea ato lesser included offense. public interest differs from that pro- First, must prosecuting attorney. question The a reasoned of discretion vide exercise he is not do if what justify departure order a from attorney, prosecuting but agreed prosecution course say action of whether he that can This matter of abso- is not a defense. prosecuting attorney a de- is such authority prerogative. judicial lute parture prosecutorial princi- sound from granted judge to assure has been ple prosecutor- as mark it an abuse of interest, public protection of the ial discretion. or more of in turn involves one vein, following (a) components: like fairness In we note against prosecu protection defense, condemn the free to as prose- agreement harassment; trespass tor’s as a fairness to the (b) avoiding disposi- authority only interest, and extreme cution a blatant legiti- ordinary circumstances, due and tion that does not serve case. interests; (c) change grading prosecutorial protec- offense an mate authority sentencing presents question ac reserved no kind tion of the judge. judiciary. judge’s statement tion reserved identify particular in- opinion must Applying case at these to the tests require un- him to terest leads bar, establishes be- we find the record go willing prosecution defendant and yond all doubt the United States to trial. agonized considered, Attorney indeed over, concluded interest now turn to the content assuring it was best served begin by passing components, and these young prosecution Lee—“a successful de discussion fairness The As- man .... killer.” *8 directly in fense, it involved since is not Attorney presented sistant United States already been the at bar it has unequivocally: to this court the precedents to in referred identified the night night spent after We opinion. have this As fairness earlier in thing. have trying this We to resolve prosecution interest, here have the we We officers. the homicide primary responsi talked with in matter which the haveWe prosecut them to our office. obviously, have had is that the bility, Anthony pulled file of Richard attorney. the ing cannot The District Court Honor, scared are ground Your we Lee. disapprove the action on his successful there is a death that unless prosecutive re incompatibility with is a prosecute way man —he this judge is in effect sponsibility unless the young judge, necessary he is a killer. We believe it would be re man. in We this mand believe that somewhere in event. At time the- right city judge appealed from, now there is who someone took the action degree prosecuted punishable by because will he will not be first murder day say years. death, degree die one in the next ten and second murder plead- imprisonment. We believe that Mr. Ammidown maximum of life We ing degree to second murder —that the need not consider what kind remand might provided that case will neutralize we have if that kind of sentencing him. We have of him disparity no fear nowii. were in effect at present are Supreme afraid of Richard Antho- what For time. might ny Georgia, Lee do. Court’s decision Furman v. 408 U.S. 33 L.Ed.2d obligation. Honor, Your have one (1972), has established unavaila obligation And that is the same bility appel of the death sentence for your has, Honor and that is for the required accompany are lant. We our public. prosecute I Govern- findings requisite reversal for lack of public people ment —for the —for disposition jus with a in the interest of city. of this tice, see 28 takes U.S.C. § judge The trial free not into account current conditions. See disapprove prose this assessment U.S.App. Coleman v. United stating cutor without both his reasons 1965). (en banc D.C. F.2d 563 determining today The situation it stands as abused his Neither of these discretion. is such that we cannot conceive that if appears elements the case at bar. judge provide the trial judge provided The trial no statement of problem a current reassessment of the reasons, colloquy appears and such in as light of the standards set forth dicates that assumed that rejec opinion, justify he could correct test was what inde degree tion of the first reversal murder pendently considered best degree second interest.17 reflecting disparity a sentence blatant so ground possible When we come to the ju as to constitute as intrusion sentencing of intrusion on the function dicial domain. The life man sentence is judge, we have a considera- datory degree on a conviction first interdependent tion that is of the other. murder, discretionary with the court dropping say, That is to an offense on a conviction for murder in the second might an intrusion taken as on degree. Parole is available mini after a function if were not years mum of 20 in the case of de prosecutorial shown to be related to a gree murder, and after a minimum 15 purpose entirely takes on an different years in the case in the sec of murder explained coloration if it is to the degree. ond The difference is insuffi prosecutorial purpose, there was a judicial rejec cient itself to warrant insufficiency evidence, doubt as properly bargained plea tion of a admissibility certain evidence guilty to murder in the second exclusionary rules, under evi- a need for ground of undue interference with bring justice, dence to another felon to sentencing judiciary. domain of the or other similar consideration. duty appeals Our as a court of calls on us to reverse the action of the trial III. judge, only appropriate but we think it pro- did Because accompany explicit our action with an in- vide a statement reasons based *9 fully sentencing authority statement that we are sensitive trusion on the 17. Tr. S-48-49. guilty to plea rejected concerning trial sordid his revulsion he degree murder because es- second Appellant’s admissions own crime. subject be thought should the defendant din- out to took his wife that he tablish sentencing punishment. At capital knowledge would she that in the ner disappointment expressed accomplice. And raped soon be jury’s recommendation support certainly because evidence there was au- him imprisonment without left also life appellant had jury verdict that a (S. thority sentence. death order the If the
planned
murdered.
that she be
4).
alone
Tr.
for the trial
decision were
make,
that
interest
his sentiment
puts
curiae
it that
Amicus
charge of
justice
for trial on a
called
rightly consider,
ex-
in the
could
degree
conclusive.
murder
be
first
discretion, that
sentencing
ercise of his
apply
law
responsibility
But our
pre-
for
life sentences
the consecutive
that
both
to take into account
on us
calls
count)
(on
murder
the first
meditated
in-
also
a decision
(on
felony-
the second
murder
and for
count)
un-
reasons
volved and that substantial
in minimum term
resulted
a
dergirded
the over-
that
his conclusion
(20
20)
parole
years
plus
could
before
riding
a cer-
for
called
interest
granted by
in-
officials
executive
be
gun.
tainty
hired
in the riddance of
years for
volved, as contrasted with 15
judgment
stated, the
For the reasons
degree
single
mur-
sentence on second
a
murder
on a
sentence
conviction
der.1
degree
first
is vacated
argument
amicus is
to ac-
with instructions
remanded
case
cept appellant’s
premised
faulty proposition
guilty
to second
imposed
consecutive
upon
be
sentences
degree murder.
premeditated mur
convictions for
ordered.
So
felony
Fuller v.
der and
murder.
ORDER
264,
U.S.App.D.C.
denied,
(1968),
625
construction,
presumes
(2)
of the same
which
that mul-
action,
out
arises
or
tiple
proof
for
requires
sentences
offenses run consecu-
transaction
tively
concurrent,
unless stated to be
does
the other
not.
fact which
not
intended to alter the substantive
premeditated mur
that
conclude
law of murder.6
separate
felony murder are not
der and
rehearing
Petition for
denied.7
meaning of D.C.
23
“offenses” within
degree
is
First
murder
de
Code 112.
§
LEVENTHAL,
Judge (con-
Circuit
2401,2
pur
D.C.Code
fined in 22
§
curring) :
killing,
killing in the course
poseful
or
In accordance with a course I have fol
attempted commission
or
of commission
occasion,*
sep
I
lowed on
have written a
from the
It is clear
of certain felonies.
concurring opinion
arate
notwithstand
rather
section 2401 that
structure
ing
prepared
opin
that it
I who
describing
one
in
distinct offenses
than
court,
ion for the
because it contains
merely
provision
statute,
al
this
offers
necessary
judg
comments not
for
proof
ternate definitions and modes
concurring opinion
ment. Yet a
that is
is
Our conclusion
the same offense.
binding
utility
court
have
by
understand
fortified
the common law
calling
in
the attention of bench and bar
ing
homicide, from which
law of
legal approach
might
to a
have been
law,
common
is taken.3 At
statute
developed in
not,
a case but was
because
killing accom
defined as
murder was
may help
such observations
to focus
mind,
given
panied by
most
state of
clarify
profits
or
an area of the
law
typically
in
death or
intention to cause
from reflection and attention.
This
felony.4
commit
Where
tention to
prompted,
concurring
example, my
for
killing, there was but
there was but one
opinion
(William)
United States v.
Dix
therefore
offense, and one
could
one
act
on,
U.S.App.D.C. 401, 403,
135
419 F.2d
give
sentence,5 despite
only
288,
one
(1969),
rise to
led,
290
course,
in due
change
jury
availability
to a
in
of alternate methods
instructions in this
circuit.
requisite
state of
demonstration
present case,
in 23
The enactment
As to
actor’s
mind.
I think it
general
helpful,
legally
112 of a
canon of be
D.C.Code
in the event a
similar
memory
Whoever, being
2.
5.
In this
of sound
and dis-
laws of man followed the
cretion,
purposely,
nature,
princi-
kills another
either of de-
dictates of the laws of
since
pal
premeditated
by
liberate and
malice or
means
function of the distinction between first
degree
poison,
perpetrating
attempting
or
or
murder and other
forms
homicide
any
perpetrate
punishable
punishable
im-
offense
was that
murder was
pur-
prisonment
penitentiary,
supra
Wechsler,
or without
death. Michael &
note
pose
perpetating
4,
so to do kills
another
702.
.attempting
perpetate
any arson,
or
6.
premeditated
in Fuller
rape,
robbery,
kidnap-
mayhem,
or
felony
separate
murder and
murder are
“of-
ping,
penetrating
attempting
or
or
merely might
“charg-
fenses”
better have read
any housebreaking
perpetrate
while armed
es,”
only
since the
issue was whether
there
using
dangerous weapon,
guilty
separate
could be
counts and verdicts.
degree.
in the first
Appellant
Ammidown asks
remand
States,
U.S.App.D.C.
26
Hamilton
United
judge.
resentence
another
This
(1905).
382
appellate
sometimes done when an
court finds
likely
persist
error
it identifies as
U.S.App.
132
See Fuller v. United
judge.
further action of the same
293,
(1968),
264,
cert.
problem arises holding sentences that consecutive
our trial murder were unavailable other sen- that no not mean does disposal. tencing at his alternatives cases, trial appropriate explore possibility condi- could guilty plea tioning acceptance of the count on the
to second
charging murder, premeditated charg- plea, on the count
an additional
ing felony murder, lesser included underlying felony, in
offense of rape. such a course Whether depend appropriate would
be lawful facts, implicating and on on the bar, judge’s at reasons. In the case attempt by
there nowas any explore alternatives. rejected
proffered plea simply out-
right. Subsequent results events—the trial, gun, of the the conviction hired Georgia— and the decision in Furman attempt
preclude comprehensible they might have
reconstruct matters
stood. THOMPSON,
Rev. Chester O. Individual- ly similarly and on behalf of others all situated, al., Appellants, et Individually WASHINGTON,
Walter as Commissioner of the District Co- Authority”
lumbia and as “The Capital Authority Housing National Un- der Executive Order.
No. 71-2049. Appeals,
United States Court of
District of Columbia Circuit.
Argued Dec.
Decided Dec.
As Amended Dec.