(concurring) .
The question of appellant’s mental condition at the time of trial first came to our notice when appellant requested authority to be brought to Washington, D. C., from the Medical Center for Federal Prisoners at Springfield, Missouri, for the purpose of arguing his appeal. Upon inquiry as to why appellant was ■confined at the Medical Center, we were advised that he was a “certified psychotic.” We thereupon appointed a member of the bar as amicus curiae to investigate and file a memorandum.
The memorandum and other records show the following: Appellant went to trial on an indictment for attempted extortion. Midway through the Government’s case, appellant announced his desire to plead guilty to a lesser offense of sending a threatening letter through the mails. Appellant addressed the court for some thirty minutes to explain why he wished to change his plea. Apparently because appellant’s statements to the court indicated to the prosecutor that appellant might be suffering delusions of persecution, the prosecutor moved for a mental examination of appellant under the provisions of D.C.Code § 24-301. Appellant’s counsel opposed the Government’s motion. The trial judge, after hearing argument, denied the motion without prejudice to its reconsideration after receipt of a pre-sentence report on appellant.
Appellant came before the trial judge for sentencing on August 1, 1956. Before sentence was pronounced, appellant’s counsel assured the judge that he had personally checked into the truth of appellant’s statements in changing his plea, and that counsel found some of them to be true. So satisfied, the judge sentenced appellant to serve from one to three years, and appellant was sent to the penitentiary at Lewisburg, Pennsylvania.
The amicus curiae appointed by this court collected several affidavits which support indications that appellant’s statements to the court had little basis in fact, but were, rather, paranoic in nature. He recommended that this court should determine why the Director of the Bureau of Prisons had not invoked 18 U.S.C. § 4245 to certify that there was probable cause to believe that appellant had been incompetent at the time of his trial. Contee v. United States, 1957, 94 U.S.App.D.C. 297, 301, 215 F.2d 324, 328. Such a certificate, if transmitted to the District Court, would have compelled a hearing to determine the mental competency of appellant at the time of trial in accordance with the provisions of 18 U.S.C. § 4244.
*735Over the opposition of appellant, pro se, and the Government, the court ordered the Government to show cause why the Director of Prisons had not acted pursuant to § 4245. The Government answered that the Director had examined psychiatric reports of the Lewisburg Board of Examiners,1 and found no probable cause therein to believe that appellant was mentally incompetent at the time of trial.2 We thereupon discharged the rule to show cause.
I agree with my brethren that notwithstanding the Director’s answer the record before us warrants judicial inquiry concerning appellant’s competency when he changed his plea and was sentenced. See Bishop v. United States, 1955, 96 U.S.App.D.C. 117, 223 F.2d 582, reversed on other grounds, 1956, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed 835. And while I also agree that the District Court must have discretion in fashioning the character of the hearing contemplated by our remand, I think we are bound to point out certain circumstances of this case which necessarily control the exercise of that discretion.
Appellant has served notice that he will oppose any determination that he was incompetent to stand trial. He cannot therefore be expected to consult with any counsel who may be appointed to assist him at the hearing. Moreover, since the Prison Bureau has classified appellant as a “certified psychotic” in the recent past, his participation in any proceeding now is a delicate matter requiring great caution. These matters make clear that the hearing cannot be an adversary one. I think they require that (1) the Government proceed first, (2) the court take the initiative in ordering the presentation of any evidence which promises to shed light on the issue, and (3) unless the court is satisfied by a clear preponderance of all the evidence that appellant was competent when tried, the judgment of conviction be set aside. See Lloyd v. United States, 1957, 101 U.S.App.D.C. 116, 117, 247 F.2d 522, 523.
. See 18 U.S.C. § 4241.
The Board of Examiners’ reports had been submitted to the Director pursuant to the provisions of Manual Bulletin No. 301 of the Burean of Prisons.
. The Board of Examiners’ report, dated February 20, 1957, certified that appellant was “mentally unsound” and recommended his transfer to the Medical Center for Federal Prisoners at Springfield, Missouri. Appellant was so transferred on March 2, 1957. Six week later, after appellant had been given a complete neurological and psychiatric examination, the Classification Committee at Springfield issued a report on appellant in which it recited findings that he exhibited gross hostility symptoms and was undoubtedly a paranoid. The report referred to contains a footnote which reads as follows:
“The Classification Committee considered the possibility of referring subject [appellant] to the Board of Examiners for consideration of processing under Section 4245; however, since it has been nine months since his trial and sentence, the Committee questioned the wisdom of referring this case bade to the court.” [Emphasis supplied.]