BURGER, Circuit Judge:
The sole issue presented on appeal raises for the first time whether it was a denial of Appellant's constitutional rights for the United States Attorney to consent to a guilty plea tendered by Appellant's co-defendant for a lesser included offense under indictment, while refusing to consent to the same plea for Appellant.
Appellant and one Anderson were indicted for housebreaking and petty larceny.
Since this is the first occasion this contention has been presented to the Court, we deal with it for the guidance of the District Court and counsel.
The issue in this Court, of course, must be resolved on the basis of the constitutional powers of the Executive. Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.
The United States Attorney, under the direction and control of the Attorney General, is the attorney for the Executive, charged with faithful execution of the laws, protection of the interests of the United States, and prosecution of offenses against the United States.
Not surprisingly, however, there is a paucity of authority in which the precise claims here raised are treated, since the existence of very broad discretion in the prosecutor has long been taken for granted. In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the Supreme Court rejected an equal protection argument that of those to whom a state recidivist statute applied, only a selected few had the heavier penalty enforced against them. The Court held that "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation," id. at 456, 82 S.Ct. at 506. Another of the few cases is Ex parte Bentine, 181 Wis. 579, 196 N.W. 213 (1923), where the Supreme Court of Wisconsin found no justiciable issue in a claim that one of two persons involved in an offense
An attorney for the United States, as any other attorney, however, appears in a dual role. He is at once an officer of the court and the agent and attorney for a client; in the first capacity he is responsible to the Court for the manner of his conduct of a case, i. e., his demeanor, deportment and ethical conduct; but in his second capacity, as agent and attorney for the Executive, he is responsible to his principal and the courts have no power over the exercise of his discretion or his motives as they relate to the execution of his duty within the framework of his professional employment. This dual role is perhaps best illustrated as follows:
United States v. Cox, supra note 4, 342 F.2d at 171.
To say that the United States Attorney must literally treat every offense and every offender alike is to delegate him an impossible task; of course this concept would negate discretion. Myriad factors can enter into the prosecutor's decision.
It is assumed that the United States Attorney will perform his duties and exercise his powers consistent with his oaths; and while this discretion is subject to abuse or misuse just as is judicial discretion, deviations from his duty as an agent of the Executive are to be dealt with by his superiors.
The remedy lies ultimately within the establishment where power and discretion reside. The President has abundant supervisory and disciplinary powers — including summary dismissal — to deal with misconduct of his subordinates;
BAZELON, Chief Judge (concurring in affirmance):
Appellant makes the bald assertion that he should have been allowed to plead guilty to the crimes of petit larceny and attempted housebreaking simply because the Assistant United States Attorney allowed a co-defendant to plead guilty to these crimes. Appellant made no attempt to establish the reasons for the different treatment, and so it is impossible for him to maintain that the difference was irrational or otherwise unconstitutional. Therefore, I join the majority in holding that the Assistant United States Attorney did not act unconstitutionally in this case. I have not considered any of the other statements in the majority opinion because they go very far beyond the necessities of this frivolous case.
United States v. Shaw, 226 A.2d 366, D.C. Ct.App., 1967.
It is also quite clear that Appellant had no right to be tried on the lesser offense. Hutcherson v. United States, 120 U.S. App.D.C. 274, 345 F.2d 964, cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965).