Augustus E. Harvin v. United States , 445 F.2d 675 ( 1971 )

ON REHEARING EN BANC

PER CURIAM:

Appellant was tried on an Information in the District of Columbia Court of General Sessions for petit larceny, in violation of D.C. Code § 22-2202, and for unlawful entry on property, in violation of D.C. Code § 22-3102. Both offenses are misdemeanors. He withdrew his demand for a jury, asked to be tried by the court, and was tried in that manner. He was acquitted of petit larceny and convicted of unlawful entry. The penalty for this offense, prescribed by Section 22-3102, is a fine not exceeding $100 or imprisonment in the jail for not more than six months, or both. He was sentenced, however, under the Youth Corrections Act, 18 U.S.C. § 5005, et seq., which provides that a youth sentenced under the Act shall be released conditionally under supervision on or before the expiration of four years from his conviction and shall be discharged unconditionally on or before six years from conviction.

Appellant contends that his sentence under the Youth Corrections Act caused the Court of General Sessions to have been without jurisdiction to try him because to support such a sentence his prosecution should have been by indictment. He contends additionally that his waiver of trial by jury was invalid since he had not previously been advised by the court that he could be sentenced under the Youth Corrections Act, entailing a possibly longer deprivation of liberty than is authorized by Section 22-3102 for the violation of which he was convicted. The District of Columbia Court of Appeals affirmed. Harvin v. United States, 245 A.2d 307 (D.C.App.1968). We allowed an appeal to this court.

Thereafter the court decided to hear the case en banc and the prior judgment of a division of the court was accordingly vacated. Following en banc hearing and consideration the court decided in favor of affirmance of the conviction.

Judges Bazelon, McGowan, Leventhal, Spottswood W. Robinson, III and Mac-Kinnon join in Part I of Judge Fahy’s opinion. Judges Bazelon, J. Skelly Wright and Spottswood W. Robinson, III join in Part II of Judge Fahy’s opinion. Judges Bazelon, Fahy, McGowan, Leven-thal and Spottswood W. Robinson, III join in Part I of Judge MacKinnon’s opinion. Judges McGowan, Leventhal, Robb and Wilkey join in Part II of Judge MacKinnon’s opinion. Judges Robb and Wilkey join in Judge Tamm’s opinion and Judge J. Skelly Wright joins in Parts I-IV thereof.

Affirmed.

FAHY, Senior Circuit Judge, with whom Chief Judge BAZELON and Circuit Judges McGOWAN, LEVENTHAL, ROBINSON and MaeKINNON concur in Part I, and Chief Judge BAZELON, and Circuit Judges WRIGHT and ROBINSON concur in Part II.

I.

The Fifth Amendment provides in part as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.

U.S.Const, amend. V.

The reference in the amendment to “or otherwise infamous crime” became the subject of several Supreme Court decisions, by which it was established that such a crime was one punishable by imprisonment for a term of years or at hard labor. Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (1885); Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886); In re Claasen, 140 U.S. 200, 11 S.Ct. 735, 35 L.Ed. 409 (1891); United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922). The decisions make clear that imprisonment for a term of years was one served in a state prison or penitentiary,¹ which, as early as 1865, 13 Stat. 500, see Ex parte Karstendick, 93 U.S. 396, 23 L.Ed. 889 (1876), Mackin v. United States, supra, was a place of confinement for those sentenced for an offense against the United States for a period longer than a year. By 18 U.S.C. § 4083, which traces its history to the Act of March 2, 1895, ch. 189, § 1, 28 Stat. 957, when Congress provided for a federal penitentiary, what the decisions made clear is now embodied in statute in the following form:

Persons convicted of offenses against the United States * * * punishable by imprisonment for more than one year may be confined in any United States penitentiary.

With the law in this situation Rule 7 (a) of the Federal Rules of Criminal Procedure, adopted in 1945, carried forward the indictment requirement of the Fifth Amendment into the Rules as follows:

An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment * * * [unless waived].

The original Committee Note to the Rule explains:

This rule gives effect to the following provision of the Fifth Amendment to the Constitution of the United States: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury -x- * -x- >>_ ^n infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 5 S.Ct. 935, 114 U.S. 417, 427, 29 L.Ed. 89; United States v. Moreland, 42 S.Ct. 368, 258 U.S. 433, 66 L.Ed. 700, 24 A.L.R. 992. Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. [former] 753f [now §§ 4082, 4083]. * * * Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime.

The Rule does not enlarge the requirement of an indictment beyond the “capital, or otherwise infamous crime,” of the Fifth Amendment. It simply brings together in rule form the criteria which had been established by the Supreme Court for an “otherwise infamous crime,” namely, an offense punishable by imprisonment for a term exceeding one year or at hard labor.

From the foregoing it is clear that the offense which led to Harvin’s sentence was not an infamous crime, for it carried a punishment by imprisonment not to exceed six months. Both adults and youths may be prosecuted for that offense on an information. The sentence imposed under the Youth Corrections Act does not alter the basis for the prosecution or transform the offense into an infamous one. A sentence under the Act it is true may result in the loss for more than a year of the liberty protected by the Due Process Clause of the Fifth Amendment,² and it is also true that the sentence available for an offense determines whether it is infamous.³ The punishment, however, which determines the question of infamy is that which is related to the offense itself, in Harvin’s case not to exceed six months imprisonment. That is the punishment which reflects the prevailing views of the governing authorities, represented by the law, as to the seriousness of the offense —its infamous or non-infamous character.⁴

A sentence under the Youth Corrections Act, in this case following conviction of a misdemeanor, is not a reflection by the legislature of the seriousness of that offense. Resort by the sentencing judge to the Youth Corrections Act was not to punish Harvin for the misdemeanor; it was to carry out the congressional purpose represented by the Act — to serve the interests of society and of selected youth offenders in preference to the statutory sentence for the misdemeanor. A sentence under the Act is not related to the offense itself, and it is the punishment for the latter which determines whether the prosecution must be by indictment. Sentencing under the Act rests upon those factors which led to its enactment — the youth of the offender, an appraisal by the judge, with the aid of other officials, of the youth’s rehabilitative possibilities, the protection of society by the self-improvement of the youth through treatment and special care, with a goal of elimination of any criminal record due to the conviction, enabling the youth to go on with his life unimpaired by a criminal record. True, in pursuit of those aims a youth may be deprived of liberty for a longer period than an adult similarly entangled with the law, or for a longer period than another youth not sentenced under the Act. If this gives rise to questions of due process of law or of equal protection of the laws, those questions are quite apart from the Indictment Clause of the Fifth Amendment and Rule 7(a). The suggested questions are not answered either by an indictment or by an information.

It would be totally inconsistent with the statutory plan to ascribe to a sentence under the Act a result which turned the misdemeanor into an infamous offense when committed by a youth offender. To carry over to such a sentence the ancient method of categorizing a crime as infamous or non-infamous according to the severity of the sentence, and as a consequence to hold that the sentence under the Act for possibly more than a year placed the misdemeanor in an infamous category, would be contrary to the reason which gave rise to the ancient usage, for a sentence under the Act simply does not denote that the misdemeanor was of so serious a character as to categorize it as infamous.⁵

I reach the same conclusion upon consideration of the Youth Corrections Act independently of the non-infamous penalty prescribed by Section 3102. For the Act does not permit a sentence under it to be served in a penitentiary.

I note preliminarily that we have recognized the nonpunitive character of confinement under the Act.⁶ Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). We there upheld the application of the Act to a youth convicted of a crime for which an adult could not be imprisoned in excess of one year. We commented;

[T]he basic theory of [the] Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison.

113 U.S.App.D.C. at 125, 306 F.2d at 285.⁷ It is true that in In re Gault, 387 U.S. 1, 27, 49-50, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court cautioned against a disregard of the substantive effect of juvenile detention when considering labels given to procedures leading to confinement,⁸ and, I might add, when considering the nature of the detention itself. The Court stated:

[I]n over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult “criminals.” In those States juveniles may be placed in or transferred to adult penal institutions after having been found “delinquent” by a juvenile court.

387 U.S. at 50, 87 S.Ct. at 1455. But under the Federal Youth Corrections Act a youth offender cannot be placed in a penitentiary.⁹ The sentence must be served “under different conditions and terms than a defendant would undergo in the ordinary prison.”¹⁰ Carter v. United States, supra.

The Act provides:

§ 5011. Treatment

Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director [of the Bureau of Prisons] shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for payment.

Added Sept. 30, 1950, c. 1115, § 2, 64 Stat. 1087.

Under Section 5015(b) the Director “may transfer at any time a committed youth offender from one agency or institution to any other agency or institution,” ¹¹ but the agencies and institutions referred to are those mentioned in Section 5011. Moreover, under Section 5012¹² these must be certified as “proper and adequate treatment facilities.” Thus, the clause in Section 5011, “insofar as practical” prefacing the provision that “institutions and agencies shall be used only for treatment of committed youth offenders,” coupled with the immediately following provisions, “and such youth offenders shall be segregated from other offenders,” especially when read with Section 5012, precludes a penitentiary.¹³ It is hardly to be supposed that a penitentiary is an institution or agency which “insofar as practical” shall be used only for treatment of committed youth offenders and is certified by the Director of the Bureau of Prisons for that purpose.¹⁴

Any doubt about this construction of the Youth Corrections Act is resolved by considering the Act in conjunction with 18 U.S.C. § 4083, which, as here-inabove set forth, limits confinement in a penitentiary to a person convicted of an offense punishable by imprisonment for more than one year, and its corollary provision which reads:

A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant.

I agree with Judge MacKinnon’s conclusion that the imprisonment referred to in Section 4083 is the imprisonment which Congress specified as the punishment for the offense itself, independently of the Youth Corrections Act, here not to exceed the six months specified in D.C.Code § 22-3102. I also agree with his view that it would be quite unreasonable in light of the purposes of the Youth Corrections Act to construe it to permit imprisonment of a youth offender in a penitentiary while at the same time the Attorney General is prohibited by Section 4083 from confining in a penitentiary an adult sentenced to imprisonment for a year or less, unless by his consent such confinement is waived. Section 4083 and the Youth Corrections Act are related and should be construed in a manner to harmonize one with the other. Cf. Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 250, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).

We construe the provisions of the Youth Corrections Act to limit the place in which a sentence under it may be served to an institution where the confinement is consistent with the purposes of the Act to afford treatment and rehabilitation. The loss of liberty may not be by confinement of a character which constitutes infamous punishment. It follows that in no event may it be in a penitentiary. We cannot attribute to Congress an intent to the contrary. It is true that at times an unintended result follows from the terms of an enactment, but we do not think Harvin’s case presents such an instance, for neither the character of the crime for which he was convicted, as evidenced by the sentence prescribed for it, nor the alternative sentence available in the discretion of the court under the Youth Corrections Act requires such a result.

It is said that a sentence under the Act nevertheless may turn out to result in confinement comparable to confinement in a penitentiary, and for this reason an indictment must precede the prosecution. Indeed, if the Act authorized such confinement it could be urged with reason that consistently with the Fifth Amendment a sentence under the Act could be imposed only after prosecution by an indictment, regardless of the minor character of the offense which furnished the occasion for the judge to resort to the Act. On the other hand, if such confinement is prohibited by the Act, this argument for an indictment is not available. For the reasons above set forth I conclude it is prohibited. Even when the conviction which gives rise to resort to the Act is a felony, and, therefore, the prosecution is by indictment, still a sentence under the Act may not validly be served in a penitentiary. So it is when the prosecution is by information. In neither case is the sentence under the Act for a felony or an infamous crime. It is for the purposes envisaged by Congress, for which a penitentiary may not be utilized.

We are not concerned in this case with whether Congress as a matter of policy should require prosecution by an indictment as a condition to a sentence under the Act, or with questions of due process of law and the equal protection of the laws. Nor are we concerned with the remedy available to a youth offender if his confinement is inconsistent with this .opinion, though we have no doubt that habeas corpus would be available in an appropriate case. The question simply is whether the Indictment Clause of the Fifth Amendment, applicable only to an infamous crime, precludes utilization of the Act following prosecution of a non-infamous offense by information.

A majority of the court hold that Har-vin validity waived trial by jury and affirm the conviction. While for the reasons set forth in Part II of this opinion I disagree, I would not hold that because the prosecution was by information the sentence was invalid or that the trial court was without jurisdiction because of the sentence.

II.

There remains the question whether appellant validly waived trial by jury. He urges that he did not, since the record does not disclose he was advised by the judge that if convicted he might be sentenced under the Youth Corrections Act, rather than as prescribed by Section 3102.¹⁵ The question is whether a decision by an accused that the issue of his guilt should be submitted to a judge rather than to a jury may be significantly affected by the absence of advice by the judge, or a showing on the record of awareness by the accused, that a sentence under the Act might be imposed.

In Dobkin v. District of Columbia, 194 A.2d 657 (D.C.App.1963), the District of Columbia Court of Appeals had before it a case in which the sentence had been increased as authorized by D.C.Code § 22-104 for a second offense. The trial had been by a judge of the Court of General Sessions without a jury. The Court of Appeals could not uphold the sentence because its enlargement brought the case within the class which conferred the right to trial by jury, and he had not been advised of this right. The court stated:

If a defendant is to be subjected to the fifty percent greater penalty under § 22-104, he is entitled to notice of this prior to trial. * * * In this case the government gave no notice to appellant prior to trial that he might be subjected to the added penalties of § 22-104; consequently he could not have been subjected to them.

194 A.2d at 660.

While the question we have is whether appellant competently and intelligently waived trial by jury, not whether he was entitled so to be tried, Dobkin and appellant’s case are on common ground in that neither the right to a jury in Dob-kin nor the waiver of a jury in appellant’s case are concerned with the issue of guilt but only with the sentence which might follow a conviction.

In Lawrence v. United States, 224 A.2d 306 (D.C.App.1966), the District of Columbia Court of Appeals affirmed Dob-kin and went somewhat further in the direction of appellant’s case. As appears from the opinion,

[A]ppellant was entitled to and had originally asked for a jury trial, but later voluntarily withdrew this demand and chose to be tried by the court. At that time he had no knowledge he was to be sentenced under § 22-104 [as a second offender].

224 A.2d at 308.

The absence of timely notice that Section 22-104 would be invoked was held to preclude a penalty in excess of the maximum for a first offender. This decision, because it assumes that notice of the nature of the sentence available affects the decision whether to exercise the right to be tried by a jury, whereas in Dobkin the nature of the sentence establishes the right itself, goes beyond that case and becomes more pertinent to ours.

In its decision in appellant’s case, however, the District of Columbia Court of Appeals avoided, I think unpersuasively, the implications of its Dobkin opinion and its decision in Lawrence, by holding that appellant’s sentence under the Youth Corrections Act was not punishment, though of possibly longer duration than a sentence Section 3102 authorizes. A sentence under the Act not having the characteristics of punishment, its duration could be enlarged, the court held, notwithstanding appellant had not been so admonished when he waived his right to trial by jury. The court pointed out, however, that in fairness perhaps the better procedure would be for the court to inform a defendant he might be sentenced under the Youth Corrections Act, so that there could be no doubt he knowingly and intelligently waived his right to trial by jury.

I cannot accept the distinction drawn by the court between punishment and a sentence under the Act insofar as waiver of trial by jury is concerned. While it is true, as I have said in Part I of this opinion, that the Act does not lead to the kind of punishment or imprisonment which requires the prosecution to be on grand jury action, the enlarged duration of loss of liberty, similarly to an enlarged punishment as a second offender, is a factor of which the accused must be advised in deciding how to be tried. The length of punishment in one situation, and the length of deprivation of liberty in the other, are of like relevance in determining the advice the accused is entitled to have prior to waiving jury trial, even though the deprivation of liberty is not punishment which makes the offense infamous.

In reaching the above conclusion I have in mind the fundamental place trial by jury as guaranteed by the Sixth Amendment has in our administration of criminal law. Decisions of the Supreme Court have establishd strict standards by which to determine the validity of a waiver of the right. See Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), with its reference to the requirement that waiver of constitutional rights must be “intelligent and competent.” And see Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). It can hardly be so unless the accused knows the consequence of a finding of guilt. I am also fortified by the cases holding that a guilty plea does not meet the standards of Rule 11, supra, note 2, unless the accused is informed he might be sentenced under the Youth Corrections Act. See, e. g., Kotz v. United States, supra; Freeman v. United States, 350 F.2d 940 (9th Cir. 1965); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965); Pilking-ton v. United States, supra; and see our case of Carter v. United States, supra.¹⁶ In these cases the absence of such advice did not affect the issue of guilt to any greater degree than in appellant’s case. While the problem in the guilty plea cases was whether to plead guilty or to be tried, here it is how one chooses to be tried, also an important decision. If lack of knowledge of the availability of a sentence under the Youth Corrections Act invalidates the plea of guilty, it is difficult to see why it would not invalidate the waiver of trial by jury; for at the basis of the whole matter is the simple fact that the accused should be advised of those alternatives available to the sentencing judge which bear upon the decision the accused must make, whether it be to plead guilty or to waive the Sixth Amendment right to trial by jury.

In United States v. Straite, 138 U.S. App.D.C. 163, 425 F.2d 594 (1970), this court recently reviewed the developing law toward greater participation by the judge when an accused undertakes to waive jury trial.¹⁷ The court refers to the tightening up of the applicable procedures in the Court of General Sessions, Jackson v. United States, 262 A.2d 106 (1970), to the views on the subject which have been expressed by the District of Columbia Court of Appeals, and to the recommendations of the American Bar Association Project on Minimum Standards for Criminal Justice (Trial by Jury, Part I, Section 1.2(b)), including the statement at p. 38 that “the better practice is for the court to advise the defendant of his right to jury trial before accepting a waiver,” even if the accused has been informed by his counsel and has complied with Rule 23(a), Fed.R.Crim. P.¹⁸ While in Straite we did not hold the waiver there “demonstrably involuntary,” the court’s discussion supports my conclusion that appellant’s waiver was invalid; for aside from the absence of the advice by the court of his right to a jury trial recommended by the Bar Association Project, we have in appellant’s case the absence also of advice by the court of the possibly extended sentence under the Youth Corrections Act.

MacKINNON, Circuit Judge, with whom Chief Judge BAZELON, Senior Circuit Judge FAHY, and Circuit Judges McGOWAN, LEVENTHAL and SPOTTSWOOD W. ROBINSON, III, concur in Part I, and Circuit Judges Mc-GOWAN, LEVENTHAL, ROBB and WILKEY concur in Part II: When appellant appeared before the Court of General Sessions on June 21, 1967 for sentencing he was 19 years old and a drug addict with a substantial criminal record. In 1962 he had been placed on probation for a purse-snatching robbery. Next his probation was extended because of an assault upon a paper boy. Subsequently he was committed to Cedar Knolls because of another assault. In 1964 he was arrested for housebreaking but the disposition of this charge does not appear. In 1965 for housebreaking in Maryland he received three years' probation and in 1966 he was twice convicted in the District of Columbia for petit larceny. He was on probation at the time of the instant offense.

Prior to appellant’s sentencing the trial court invoked section 5010(e) ¹ of the Youth Corrections Act and ordered him committed to the custody of the Attorney General for observation and study at a classification agency to obtain additional information concerning him, so as to determine whether he would derive benefit from the “treatment” authorized by the Youth Corrections Act. The agency made a report to the court, which it commented upon at the time of sentencing, as follows:

“THE COURT: Mr. Harvin, I would like, for the purpose of the record, to make observations. * * * You have been sent, by the Court, to the Federal Youth Corrections Act, to determine whether there is any way at all that the Court can deter you from a life of permanent crime.

“It is the opinion of the people in the Youth Correction Center, the Acting Supervisor, the Clinical Psychologist, that the only hope for you is that you receive individual psychotherapy under the Youth Center’s controlled environment. It is the unanimous opinion, apparently, of the staff that the only alternative for you is to be sent to jail, which will not straighten out your problems; to send you to Lexington, which will only strengthen and not diminish your addiction problems or youth correction.

“As far as the Court is concerned, this is a classic case of what is in the best interest for you, or to be highly technical and say, ‘Sure you can be out in six months’, but to be released in six months is to be released on an inevitable life of crime.

“So, the Court finds that the defendant was 19 years of age on the date of conviction, and is suitable for handling under the Federal Youth Corrections Act. The defendant is hereby committed to the custody of the Attorney General and those authorized representatives for treatment and supervision, pursuant to 18 United States Code 5010(b), until discharged by the Federal Youth Correction Division of the Board of Parole, as provided by 18 U.S.C.A. 5017(c).²

“I might also note that the members of the Youth Correction Division of the Board of Parole that examined your file also feel that without the institutional training, there is no — that is the only way to possibly make a law abiding citizen out of you.” (Emphasis added.)

The court thus sentenced Harvin under the Youth Corrections Act. The issues resulting from Harvin’s sentencing are outlined in the opinion by Judge Fahy. These are twofold: First, whether Harvin’s prosecution for the misdemeanor of unlawful entry under D.C.Code § 22-3102³ must be initiated by indictment when a sentence is adjudged under the Youth Corrections Act; and secondly, whether appellant’s conviction should be reversed because preceding his waiver of a jury trial he was not advised by the judge in open court that he could be sentenced as a youth offender under the Youth Corrections Act. My answer is to the negative on both questions which concurs with Judge Fahy on the first issue and with Judge Tamm on the second issue.

I

Judge Fahy in Part I of his opinion concludes that it is not a violation of the Fifth Amendment to prosecute a youth offender for a misdemeanor where he is sentenced “to the custody of the Attorney General and those authorized representatives for treatment and supervision, pursuant to” the Youth Corrections Act (hereafter YCA) notwithstanding that the period of “treatment and supervision” for such offense may run six years as a maximum in extreme cases.^{3 4} He bases this conclusion on an interpretation of the applicable statutes to the effect that a sentence under the YCA cannot be carried out by “infamous punishment.” Judge Tamm dissents from this conclusion, contending the YCA sentences for misdemeanors may be carried out by infamous punishment because (1) the Attorney General allegedly may confine a youth offender committed under the YCA to a penitentiary for a misdemeanor, and (2) this may be for a period in excess of one year. If either of these contentions is invalid “infamous punishment” would not result from a YCA sentence for a misdemeanor. It is my conclusion that the first contention is invalid and thus my views concur with the result reached by Judge Fahy in Part I and with the reasons he assigns therefor.

In my view of the law neither the Attorney General nor any other United States official may cause any sentence for a misdemeanor adjudged with respect to any committed youth offender to be served in a penitentiary without the consent of the youth. This result seems obviously to be directed by the clear language of 18 U.S.C. § 4083 which provides :

“Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary.

“A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant.” (Emphasis supplied.)

This statute classifies prisoners into two groups: (1) those convicted of statutory felonies (imprisonment for more than one year) and (2) those convicted of statutory misdemeanors (imprisonment of one year or less). It then provides that those in the first group (felons) “may be confined in a United States penitentiary,” and that those in the see-ond group may not be required to serve any portion of their sentence “in a penitentiary” without their consent. Under my interpretation of this statute, youth offenders convicted of misdemeanor violations are within the second group and since the requirement of consent assures that penitentiary confinement will not be enforced upon any offender so convicted, that is tantamount to determining that "infamous punishment” may not be imposed in any such case. My interpretation is based upon the legislative intent manifest in the relevant statute, as hereinafter outlined.

Because of its legislative history it is my opinion that the “sentence” referred to in the second sentence of section 4083 is the sentence of imprisonment authorized by the criminal statute prescribing the offense and not the sentence of “supervision and treatment” authorized under the YCA. Section 4083 is the result of a number of prior enactments which began in 1895 (28 Stat. 957), and culminated in the present statute. The terminology of the early acts⁵ is not represented in the present statute, which began to acquire its present form in 1940. Section 7 of the Act of June 14, 1941, provided:

“Sec. 7. Hereafter all persons convicted of an offense against the United States shall be committed, for such terms of imprisonment as the court may direct, to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinement where the sentences of all such persons shall be served: Provided, That any sentence of imprisonment for an offense punishable by imprisonment for a term of one year or less shall not be served in a penitentiary except with the defendant’s consent. The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the Federal Government or otherwise, or whether within or without the judicial district in which the person was convicted. The Attorney General is also authorized to order the transfer of any person held under authority of any United States statute from one institution to another if in his judgment it shall be for the well-being of the prisoner or relieve overcrowded or unhealthful conditions in the institution where such prisoner is confined or for other reasons.” 55 Stat. 252. (Emphasis added.)

And the Act on October 21, 1944 added the following to said Section 7:

“The authority conferred upon the Attorney General by this section shall extend to persons committed to the National Training School for Boys, by the juvenile court of the District of Columbia, as well as to those committed by any court of the United States.” 55 Stat. 743-744.

In 1948 the 80th Congress “enacted into positive law” Title 18 of the United States Code entitled “Crimes and Criminal Procedure” which “revised and codified” the existing law. In so doing the prior law above quoted as section 7 was codified into Title 18 U.S.C. § 4083 to read as follows:

“Persons convicted of offenses against the United States or by courts-martial and sentenced to terms of imprisonment of more than one year may be confined in any United States penitentiary.

“A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant.” Act of June 25, 1948, c. 645, § 4083, 62 Stat. 850.

It is well settled that such codification is not a new enactment, does not change the law and merely carries forward the same meaning as that contained in the prior law. A 1959 amendment to section 4083 produced the following result:

Ҥ 4083. Penitentiary imprisonment; consent.

Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary.

“A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant.” Act of September 14, 1959, Pub.Law 86-256, 73 Stat. 518.

The effect of this amendment was to alter the first sentence to substitute for the clause reading “and sentenced to terms of imprisonment of” the shorter clause reading “punishable by imprisonment for.”

The purpose of this 1959 amendment was stated in the House Report which accompanied the bill to be as follows:

“Briefly, the first part of the present statute (which is sec. 4083 of title 18, United States Code) provides that persons sentenced to terms of imprisonment of more than 1 year may be confined in a U.S. penitentiary.

“The second part of that statute provides that a sentence for an offense punishable by imprisonment for 1 year or less shall not be served in a penitentiary without the consent of the defendant.

“It will be noted that the law is silent with respect to persons who may be convicted of a felony (that is, any offense punishable by imprisonment for more than 1 year) but who are sentenced to 1 year or less. The purpose of the instant bill is to close the gap by providing that persons convicted of an offense against the United States, or by courts-martial, punishable by imprisonment for more than 1 year, may be confined in any U.S. penitentiary.” H.R.Rep.No.934, 86th Cong., 1st Sess., to accompany S. 1647, 2 U.S. Code Cong. & Ad.News, p. 2316 (1959).

From such legislative history emerged the present section 4083.

Turning then to the language of section 4083 as presently constituted, when all factors are considered, it is my conclusion that the clear import of the congressional intent indicates that when the statute refers to “offense [s] punishable by imprisonment,” Congress intended to refer to the punishment imposed by the criminal statute which defined the substantive offense and not to the “treatment and supervision” authorized by the YCA. This conclusion is compelled by several indicia of congressional intent.

First, the basic provisions of section 4083 were enacted long before the YCA and thus never contemplated a YCA sentence.⁶ There is thus no question that at its time of enactment the term “sentence” referred solely to the sentence prescribed by the criminal statute, and never contemplated the type of disposition now possible under the YCA, because such did not then exist.

Secondly, the YCA is pure additional legislation. It carries no repeal provision (64 Stat. 1086, et seq.). The absence of any repealer and the tenor of the entire Act indicates an intent to harmonize the provisions of the YCA with existing statutes and not to supplant them.

So construed, the entire statute (section 4083) manifests an intent to provide variable confinement, penitentiary and non-penitentiary, for two different categories of offenses, i. e., (1) those punishable by imprisonment for “more than one year,” and (2) those punishable by imprisonment “for one year or less.” The YCA, however, generally proceeds by a different standard. It has only one criterion and that is whether the youth offender has committed an offense that is “punishable by imprisonment.” 18 U.S.C. § 5010(b) and (c). Thus, if the “treatment and supervision” authorized by the YCA were considered as the “sentence” by which section 4083 was to be applied every youth offender, so far as section 4083 is concerned, would be subject to penitentiary confinement. Under such circumstances the variable treatment for felons and misdemeanants intended by section 4083 when it was enacted would be completely wiped out for all youth offenders since all offenders sentenced under the YCA have a potential 6-year maximum period of treatment and supervision.⁷ It is submitted that this would be an absurd result as it would attribute an intent to Congress to provide a harsher and more infamous form of punishment for youth offenders than that provided for adult violators of the same statute. However, everything in the YCA indicates an intent by Congress to provide milder and more understanding treatment and supervision and that broad considerate intent would not be furthered by construing the YCA so as to render completely nugatory the second sentence of section 4083 in all cases involving youth offenders who are sentenced under the YCA. To do so would produce the incongruous result that those youth offenders who are convicted of statutory misdemeanors and sentenced under the YCA would be imprisoned under the rules applicable to felons. And if it were held that those so sentenced under the YCA were to be confined under the rules applicable to felons, there would be no reason not to apply the same rule to all juvenile offenders committed to any federal institution for a period of time that might exceed one year.

Additionally, since the Government is required to place all other criminal offenders in two categories insofar as penitentiary confinement is concerned, I see no administrative hardship or violence to legislative intent to conclude, as I do, that under § 4083 youth offenders sentenced for misdemeanors under the YCA are to receive the benefit of the same two classification categories for purposes of determining their eligibility for penitentiary punishment, and are not to be subjected to more onerous punishment in this respect, than adult violators .of the same statutes. It is accordingly my view that no committed youth offender, sentenced for an offense punishable by the provisions of the Act defining the substantive crime to imprisonment for one year or less, may be confined in any penitentiary. And this is the absolute rule regardless of how desirable or necessary some person in an official position might consider it to be to confine a youth offender convicted of a misdemeanor in a penitentiary. In my view, such interpretation is entirely in keeping with the YCA and also applies section 4083 in the reasonable manner presumed to be intended in all congressional acts and so as to require the “proper and adequate treatment” implied by 18 U.S.C. § 5012.

Judge Tamm’s opinion on this point suggests that the YCA was modeled on Chapter 305 of Title 18 United States Code (18 U.S.C. §§ 4081-4086 (1964)), constitutes a parallel and independent system for processing youth offenders, and thus would supercede other more general correctional and penal statutes. It may have been remodeled somewhat on chapter 305 and it may be parallel legislation but this is only true to the extent that it contains parallel provisions and it does not contain any parallel provision to § 4083 as is indicated by footnote 3 of Judge Tamm’s opinion. Thus, there is no reason to conclude that the clear language of § 4083 prohibiting the imprisonment in a penitentiary without their consent of persons convicted of an offense punishable as a misdemeanor is not applicable to youth offenders sentenced under the YCA for misdemeanor offenses. There is nothing in the YCA that is inconsistent with the provisions of § 4083 and hence there is nothing upon which to base a conclusion that any provision of the YCA supplements or replaces § 4083 or is even parallel to it. And more particularly, § 5011,⁸ which provides for the segregation of youth offenders for treatment, is completely consistent with the provisions of § 4083 prohibiting penitentiary confinement of any offender (youth or adult) convicted of a misdemeanor. In the absence of some conflict between the two statutes the provisions of both are to be given effect and a conflict is not to be generated by broad references to remote legislative history.

To hold that the guarantees of § 4083 against penitentiary confinement were applicable to adult offenders but inapplicable to youth offenders would be a discrimination contrary to the whole intent and purpose of the YCA. Actually, since we are dealing with a criminal statute it should be strictly construed in favor of the accused.⁹ This rule of interpretation as applied to the statute would result in appellant’s confinement being controlled by the restriction applicable to misdemeanors. And to the argument that the importation of such a limitation into a YCA sentence is “alien to its underlying philosophy,” my conclusion is exactly to the contrary. I find that a YCA sentence is completely in keeping with the beneficent purpose of that statute and that such interpretation would not cause any administrative hardship.

It is accordingly my conclusion that Congress never intended the YCA, or any other statute it enacted, to be construed so that adult misdemeanor offenders could not be confined in penitentiaries but youth offenders convicted of the same crimes could be so confined. To so hold would run counter to the entire warp and woof of all congressional legislation on the subject.

II

However, I do not concur in Part II of Judge Fahy’s opinion. On the point there discussed I fail to see any error in the manner in which appellant waived his right to a jury trial and no prejudice to him in the fact that the record does not disclose that his waiver of a jury trial was preceded by any statement by the trial judge that appellant, if convicted, might be sentenced under the YCA rather than to the imprisonment and fine authorized by D.C.Code § 22-3102,¹⁰ which defines the crime of unlawful entry. He was always subject to being sentenced under the YCA whether he was tried by a jury or by the court. His waiving a jury trial did not alter in any respect the available sentence possibilities. However, it is of course desirable for the trial judge to advise a youth offender who is charged with a misdemeanor of the possibility of his being sentenced under the Youth Corrections Act. Such warning may promote understanding and avert litigation.

In my view it cannot be concluded that a jury trial was not properly waived from the fact that the record does not show the accused was informed in open court by the judge of a fact that would not be affected in any way by such waiver. Judge Fahy’s opinion relies on cases under Rule 11, Fed.R.Crim.P. ¹¹ which prescribes the procedure a judge must follow in accepting a plea of guilty. The Federal Rules of Criminal Procedure do not apply to criminal proceedings in the Court of General Sessions for the District of Columbia where this case was tried.¹² Such rules are being referred to here only because they were involved in several cases cited in Judge Fahy’s opinion and because the Federal Rules are widely recognized as providing for acceptable procedures in criminal trials. The Federal Rule specifically states that the court should address the defendant before accepting a guilty plea. Rule 23, Fed.R.Crim.P.,¹³ however, provides a different procedure for waiver of a jury trial. Such waiver must be (1) in writing, (2) with the approval of the court, and (3) with the consent of the Government. This procedure was followed by the trial court, but the opinion of Judge Fahy would in effect impose the same procedural requirements for waiver of a jury trial as are imposed by Rule 11 for entry of a plea of guilty. To me this is no more required for the Court of General Sessions than it would be for the United States District Court. The trial court fully complied with the procedures prescribed by Rule 23(a) and in my view that is sufficient.

Appellant claims support for his argument on this point in the decision of the District of Columbia Court of Appeals in Dobkin v. District of Columbia, 194 A.2d 657 (D.C.App.1963). That decision held that the defendant was entitled to advance notice of an intention to prosecute him as a second offender where the additional punishment which became possible by virtue of adding the charge that he was a second offender created a right to a jury trial which had not existed before. Lawrence v. United States, 224 A.2d 306 (D.C.App.1966), and Brandon v. United States, 239 A.2d 159 (D.C.App.1968), are also relied upon. These cases, like Dobkin, both deal with second offender charges in which the Government is required to give final notice of its intention to prosecute the accused as a second offender before he withdraws his demand for a jury trial.

These second offender cases, however, are distinguishable from situations arising under the Youth Corrections Act. In the second offender cases the accused is not placed on notice of the maximum punishment he faces when he is charged with an offense which is actually a second offense until it is additionally charged formally as a “second offense.” Any youth offender, however, is always subject to the possibility that he will be sentenced under the YCA from the moment he is charged and the maximum punishment to which he is exposed cannot thereafter be enlarged in any way. However, under the YCA the maximum possible punishment remains the same at all times ¹⁴ and is in nowise altered by waiver of a jury trial.

Thus, since the procedure required of United States District Courts by Rule 23, Fed.R.Crim.P., for the waiver of a jury trial was followed, it is my view that such procedure fully protected all rights of the appellant, and that we should affirm the decision by the District of Columbia Court of Appeals in Harvin v. United States, 245 A.2d 307 (D.C.App.1968).

1 . This is in contrast with confinement in a “house of correction * * * workhouse and bridewell * * Ex parte Wilson, supra, 114 U.S. at 428, 5 S.Ct. at 941. “Bridewell” is defined by Webster as follows:

A house of correction standing till 1864 in London near Blackfriars Bridge. It was originally a palace built by Henry VIII. So called from St. Bride’s (or Bridget’s) well near by. A house of correction; loosely, a jail or prison.

Webster’s New International Dictionary, 2nd Ed. Unabridged.

2 . Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ; United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969) ; Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963).

Pilkington involved Rule 11, Fed.R. Crim.P., governing a plea of guilty, which provides that the court shall

not accept such plea * * * without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * *

The court held that the Rule required the judge to advise the accused who pleads guilty that his sentence might be under the Youth Corrections Act, for:

However looked at, the deprivation of liberty for a possible period of six years is a greater penalty than a sentence for a lesser period.

315 F.2d at 208.

In Pilkington the court was not faced with the question we have. Moreover, we do not think Pilkington is to be interpreted as holding that the “greater penalty” under the Youth Corrections Act to which the court referred is such imprisonment as attaches infamy to an offense not otherwise infamous.

3 . Ex parte Wilson, supra; accord, Mackin v. United States, supra.

4 . In Mackin v. United States, supra, 117 U.S. at 350, 6 S.Ct. at 778, Justice Gray, in explaining the emphasis given to the form of punishment for an offense in determining its infamous character in his earlier opinion of Ex parte Wilson, supra, observed that:

The fifth amendment had in view the rule of the common law, governing the mode of prosecuting those accused of crime, by which an information by the attorney general, without the intervention of a grand jury, was not allowed for a capital crime, nor for any felony;

as opposed to the rule of evidence disqualifying as witnesses those convicted of certain crimes.

5 . It is hardly to be thought that every confinement for more than a year, though in a place other than a penitentiary, requires a grand jury indictment. Such a suggestion would cast doubt upon the permissibility of detention, in the absence of indictment, of juveniles, persons of unsound mind, and perhaps others.

6 . In the dissenting opinion in United States v. Moreland, supra, 258 U.S. at 441, 42 S.Ct. 868, by Mr. Justice Brandéis, for himself and Chief Justice Taft and Mr. Justice Holmes, it was thought that a “hard labor” penalty added to imprisonment in a workhouse did not create infamy. Emphasis was placed on the rehabilitative purposes of the sentence; indeed the dissenters thought a workhouse sentence like that imposed in Moreland usually was not intended primarily as punishment at all.

The discussion by Mr. Justice Brandéis is a telling argument for bolding that the development illustrated by the Youth Corrections Act is not to be considered as attaching infamy to offenses which led the judge to resort to the Act. And nothing in the majority opinion in Moreland is to the contrary, for the differences between the majority and the dissenters centered solely on the significance of the sentence to bard labor. The majority considered hard labor in a workhouse carried infamy. The dissenters considered that the labor involved in a workhouse was not comparable to that in a penitentiary, and, therefore, not a hallmark of infamy as a penitentiary sentence would be.

7 . Support for this position was found in the quoted portion of the opinion in Cunningham v. United States, 256 F.2d 467, 472 (5th Cir. 1958), which similarly rejected due process and equal protection objections to the Act, reasoning that the Act:

[Pjrovides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration.

See also Johnson v. United States, 374 F.2d 966 (4th Cir. 1967) ; Brisco v. United States, 368 F.2d 214 (3d Cir. 1966) ; Kotz v. United States, 353 F.2d 312 (8th Cir. 1965) ; Eller v. United States, 327 F.2d 639 (9th Cir. 1964) ; Rogers v. United States, 326 F.2d 56 (10th Cir. 1963). The views expressed in Carter as to the nature of a sentence under the Youth Corrections Act do not rest upon the fact that the prosecution was on an indictment.

8 . See also In re Winship, 397 U.S. 358, 365-366, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

9 . In so holding we find ourselves in respectful disagreement with the decision in United States v. Reef, 268 F.Supp. 1015 (D.Colo.1967).

10 . See In re Wilson, 438 Pa. 425, 264 A.2d 614, 617 (1970), where the court in appraising an equal protection argument in relation to juvenile detention, remarked that:

It is our view that there can be no constitutionally valid distinction between a juvenile and an adult offender which justifies making one of them subject to a longer maximum commitment in the same institution for the same conduct.

The state act was nevertheless upheld under the condition that the “longer commitment will result in the juvenile’s receiving appropriate rehabilitative care and not just in his being deprived of his liberty for a longer time.” 264 A.2d at 618. See also In re Gault, supra, 387 U.S. at 22-23 n. 30, 87 S.Ct. 1428.

11 . The record reveals that I-Iarvin is now serving his sentence at the Youth Corrections Center of Lorton Reformatory.

12 . This Section provides :

No youth offender shall be committed to the Attorney General under this chapter until the Director shall certify that proper and adequate treatment facilities and personnel have been provided.

If no such facilities and personnel are available, then the sentencing court could not sentence the youth offender under the Act.

13 . The “insofar as practical” proviso, thus, can only mean that an agency or institution designed for Youth Corrections Act treatment may also be used, if necessary, for other purposes consistent with that function.

14 . For a similar construction of the Attorney General’s power over juveniles committed to the National Training School for Boys, under Section 4082, where the Congressional intent is much less clear, see White v. Reid, 125 F.Supp. 647 (D.C.C.1954), and Kautter v. Reid, 183 F.Supp. 352 (D.D.C.1960). In the former, the bate Judge Laws, Chief Judge of the United States District Court, who actively participated in the enactment of the Youth Corrections Act, was guided by the following considerations which are equally pertinent to this case:

It is true that in both juvenile court and criminal proceedings a person may be deprived of his liberty. * * * [But] there is a fundamental legal and practical difference in purpose and and technique. Unless the institution is one whose primary concern is the individual’s moral and physical well-being, unless its facilities are intended for and adapted to guidance, care, education and training rather than punishment, unless its supervision is that of a guardian, not that of a prison guard or jailor, it seems clear a commitment to such institution is by reason of conviction of crime and cannot withstand an assault for violation of fundamental Constitutional safeguards.

125 F.Supp. at 650.

15 . As we have indicated appellant was acquitted of petit larceny. Being tried for that offense, however, he was entitled to a trial by jury under the Sixth Amendment; for “petty” larceny was a felony at common law and triable by jury. In re Fauldan, 20 D.C. (9 Mackey) 433 (1892). Moreover, as the penalty authorized for petit larceny by D.C.Code § 22-2202 exceeds six months, tlie crime would not be considered “petty” under federal standards, 18 U.S.C. § 1; Duncan v. Louisiana, 391 U.S. 145, 161, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ; nor under the Sixth and Fourteenth Amendments, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).

16 . To the contrary see Cunningham v. United States, supra.

17 . In Harvin’s case the record shows only the following:

[COUNSEL FOR DEFENDANT:] Your Honor, we are going to withdraw the demand for jury trial, and take a trial by the Court.

THE COURT: All right. On the charge of petit larceny and unlawful entry.

Mr. Harvin, your attorney had indicated you wish to withdraw your desire for a jury trial, and will take a trial by the Court. Is that correct?

MR. HARVIN: Yes Sir.

THE COURT: All right, we will have a trial.

18 . Rule 23(a), Fed.R.Crim.P., provides:

Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.

1 . “If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to tlie court its findings.” 18 U.S.O. § 5010(e).

2 . “A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.” 18 U.S.C. § 5017(c).

3 . “Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building or other property, or part of such dwelling, building or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceding $100 or imprisonment in the jail for not more than six months, or both, in the discretion of the court.” D.C.Code § 22-3102.

4 . See note 2, supra.

5 . 28 Stat. 957; 29 Stat. 380.

6 . The Youth Corrections Act was enacted September 30, 1950 (64 Stat. 1085). The Juvenile Delinquency Act had preceded it by two years, being enacted June 25, 1948 (62 Stat. 857). Jurisdiction to proceed under the Juvenile Delinquency Act was based upon the “consent” of the juvenile (§ 5032) which was required to be in writing (§ 5033). Juvenile offenders could be sentenced to probation or to the custody of the Attorney General for terms not exceeding the juvenile’s minority with the further proviso that the “commitment” shall not exceed the term which might have been imposed had he been tried and convicted of the alleged violation (§ 5034) (62 Stat. 858).

7 . See note 2, supra.

8 . “Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treament. The Director shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall he segregated from other offenders, and classes of committed youth offenders shall he segregated according to their needs for treatment.” 18 U.S.C. § 5011 (emphasis supplied).

9 . United States v. Cook, 384 U.S. 257, 262, 86 S.Ct. 1412, 16 L.Ed.2d 516 (1966) ; United States v. Bramblett, 348 U.S. 503, 509, 75 S.Ct. 504, 99 L.Ed. 594 (1955). See note 3, supra.

10 . See note 3, supra.

11 . “Pleas — A defendant may jilea not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a jilea of guilty, and shall not accejit such jilea or a jilea of nolo contendere without first addressing the defendant personally and determining that the jilea is made voluntarily with understanding of the nature of the charge and the consequences of the jilea. If a defendant refuses to jilead or if the court refuses to accejit a jilea of guilty or if a defendant corjioration fails to ajijiear, the court shall enter a jilea of not guilty. The court shall not enter a judgment upon a idea of guilty unless it is satisfied that there is a factual basis for the j)lea.” Fed.R.Crim.P. 11.

12 . See Fed.R.Crim.P. 1, 54(a) (1) and 54 (c).

13 . “Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” Fed.R.Crim. P. 23(a).

14 . “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction.” 18 U.S.C. § 5000(e).

“If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017(c) of this chapter.” 18 U.S.C. § 5010(b). See notes 1 and 2, supra.