(concurring) :
I agree entirely with Judge Miller’s treatment of the sham-arrest issue. It would be the ultimate in absurdity to let a defendant be heard to complain that a police officer specially trained in narcotics law enforcement can make arrests only for narcotics violations, or for judges otherwise to question an officer’s motives for his official actions. See, e. g., Mellon v. Brewer, 57 App.D.C. 126, 18 F.2d 168, 53 A.L.R. 1519 (1927). When a police officer observes overt criminal conduct and makes an arrest, the fact that the officer suspects other violations not manifest at the time, such as illegal possession of narcotics, weapons or stolen goods, is totally irrelevant. The police officer would himself have been guilty of a misdemeanor had he failed to arrest appellant in these circumstances. D.C.Code Ann. § 4-143 (1961).1 To suggest that an accused is not foreclosed from questioning an officer’s personal motives for making an arrest, otherwise valid, is simply to say that the first amendment protects the right of every appellant to make any contention, however absurd or bizarre. The alarming frequency with which judges accept such contentions tends to encourage this exercise. Other issues presented in this case seem to be to warrant somewhat fuller treatment, especially in light of the sweeping generalities of the dissent.
I note at the outset that the longstanding practice of this court by which one sitting division adheres to prior holdings of other divisions precludes our entertaining the arguments advanced in the dissent, to say nothing of making a holding to those ends. Our holding in Castle v. United States, No. 17894, Nov. 19, 1964, 120 U.S.App.D.C. -, 347 F.2d 492, apart from the dictum, of necessity rejected the cruel-and-unusual-punishment contention now made by appellant and in Lloyd v. United States, No. 18049, July 3, 1964, 119 U.S.App.D.C. -, 343 F.2d 242, petition for rehearing en banc denied, Nov. 6, 1964, we rejected both that contention and the equal-protection contention. Since the Lloyd case was decided without opinion and the Castle case dealt but summarily with the cruel-and-unusual-punishment claim, an elaboration may be useful.
(1) Appellant has no standing to raise the equal-protection question here. The sentence of ten years is the minimum penalty for the repeat-offender under the federal statutes in question. Under the applicable provisions of the D.C.Code, the maximum penalty for such offenders is ten years plus a fine of $5000. It is apparent that appellant could thus lawfully have received an even heavier penalty under the D.C.Code than he received under the federal statutes, and we cannot assume he would have received less than the same ten-year sentence, without fine, had he been tried under the District Code. In these circumstances, appellant is not a “person aggrieved” by the United States Attorney’s choice of statute. See Berra v. United States, 351 U.S. 131, 133, 76 S.Ct. 685, 100 L.Ed. 1013 (1956) *969(Court found appellant’s sentence greater than maximum possible under statute appellant asserted should have been charged as lesser offense before reaching merits of that contention).
(2) Assuming arguendo that appellant had standing to raise the equal-protection issue, I find his position without merit, even if we assume that the equal-protection guarantee may be imported into the fifth-amendment due process clause in this situation. In the Berra case, swpra, the situation presented to the Supreme Court was very similar to the instant case. There the petitioner had been tried and sentenced under 26 U.S.C. § 145 (b), which the Supreme Court assumed punished as a felony the same acts made a misdemeanor by 26 U.S.C. § 3616(a).2 At trial petitioner had moved unsuccessfully to have the jury instructed on § 3616(a) as a “lesser offense.” He had made no motions addressed to the validity of the indictment, conviction or sentence under § 145(b). In this posture, the Supreme Court found the propriety of the denial of the lesser-offense charge to be the only question before it, 351 U.S. at 134, 76 S.Ct. 685, thus rejecting the dissenting view of Justice Black that the co-existence of the felony and misdemeanor statutes vested a discretion in the prosecutor “wholly incompatible with our system of justice,” id. at 138, 76 S.Ct. at 690, and that the Court should notice that fact as “plain error” under Rule 52(b) of the Federal Rules of Criminal Procedure. Id. at 137, 76 S.Ct. 685. 3
Thus, the Berra case precludes our finding plain error warranting reversal here despite the fact that the federal and municipal statutes in question may be viewed as “functionally equivalent,” in that they require identical proof.4 Appellant’s attempt to distinguish cases such as Deutsch v. Aderhold, 80 F.2d 677 (5th Cir. 1935), as upholding the prosecutor’s discretion to choose only between statutes requiring proof of different facts are thus to no avail.
Moreover, it is clear that a United States Attorney has the discretion to proceed against a particular defendant under the federal legislation or to allow him to be dealt with by a state having concurrent jurisdiction. Indeed, a defendant may constitutionally be prosecuted for the same acts both by the United States and by any state whose laws those acts offend. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. People of State of Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed. 2d 684 (1959). We need not decide whether Congress acted for a sovereignty separate from that it serves in national legislation when it passed the Uniform Narcotics Act for the District of Columbia; we need not decide whether the United States Attorney for the District of Columbia, viewed functionally as both a state and a federal entity, could validly prosecute a defendant both under the D.C.Code and under the federal statutes. In my view it is sufficient to say there is no substantial difference between allowing the United States Attorney for the District of Columbia to proceed either under the municipal or the federal legislation in his discretion and allowing his *970counterpart in a state to bring a federal action or to defer to state authorities.5 To draw such a distinction would be to sanction the kind of hairsplitting judicial sophistries that undermine rather than advance a rational and fair administration of the criminal law.
(8) The contention that appellant’s sentence is cruel and unusual punishment is similarly without merit.6 Justice White noted in dissent in Robinson v. State of California, 370 U.S. 660, 689, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), that the Court’s use of the eighth amendment in that case was novel since the Court used that amendment substantively. What the Supreme Court struck down in Robinson was not the punishment as such but rather the act of a state legislature in declaring the condition of narcotics addiction itself a crime.7 It is not the role of this court to extend such a strained use of the cruel-and-unusual-punishment clause in the face of the Supreme Court’s intimation in Robinson itself that the clause is not to be so extended. See 370 U.S. at 664-666, 82 S.Ct. 1417. Nor should that Court be put to the necessity of granting review in order to reject expressly a holding it has so recently rejected by implication.
Even if I thought it open to us- — as I do not — to ignore the intimations of the Supreme Court that its use of the cruel- and-unusual-punishment clause in Ro bin-son does not extend to forbid punishment of possession of narcotics, I should reject such a use on its merits. The Robinson determination that addiction per se may not be made a crime articulated a general substantive rule of law, which does not turn on the nature of each addict’s drug habit; rather it was a broad institutional determination. In contrast, the determination whether a particular defendant’s possession of narcotics came about at a particular time and place and in such circumstances as to make any punishment therefor cruel and unusual presumably would require a complex factual determination of the subjective motives of the person as well as his capacity to control his conduct. It would thus be an individual determination, going only to the constitutionality of the incarceration of that particular defendant. How, then, is it possible to separate the cruel-and-unusual-punishment issue in such a case from the “insanity” issue? In my view the proper procedure is for the accused to raise the issue of “insanity” grounded on addiction before the trier of fact by “some evidence” that he has some mental illness apart from addiction or that addiction to and long or intensive use of narcotics have eroded and impaired his capacity to control his conduct.8 It is inappropriate to ask an appellate court to hold as a matter of law that the punish*971ment fixed by Congress is cruel and unusual because it provides imprisonment for those unfortunates who surrender to the appetite for drugs.
. As Judge Miller’s quotation from the Record makes plain, the arresting officer’s search was made for the purpose of disarming appellant of the knife he had admitted carrying. As the Supreme Oourt only recently had occasion to say, “Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons * * Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Given the valid purpose of search for a weapon, any other aims the officer may have had are irrelevant. That the valid search disclosed possession of contraband drugs was appellant’s misfortune.
. The force of Berra for our purposes is of course not diminished by the Court’s subsequent determination, see Achilli v. United States, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 (1957), that the two sections did not in fact overlap.
. If it be suggested that the grant of certiorari on the refusal of the lesser-offense charge precluded the Court from considering the plain-error claim argued by Justice Black, the answer is to be found in the Court’s usual approach of reaching whatever it wishes to reach. If any error was thought to exist, there can be no doubt that the vehement dissent of Justice Black called the question to the Court’s attention. Accord, United States v. Achilli, 234 F.2d 797, 809 (7th Cir. 1956).
. D.C.Code Ann. § 33-402 (1961) punishes possession of narcotics; 21 U.S.C. § 174 and 26 U.S.C. § 4704(a), on the other hand, punish certain acts relating to the handling of narcotics. The municipal and federal statutes are functionally equivalent however, since the latter authorize conviction on proof of unexplained possession.
. The functions of a prosecutor afford examples of a wide variety of powers to “select” the punishment in the sense argued by appellant, and to select the forum. One is seen in the situation where the prosecutor in one jurisdiction elects to yield prosecution of an accused for an offense to a jurisdiction which has capital punishment not available in the waiving jurisdiction. Similarly a prosecutor may elect to prosecute or not to prosecute, or to indict for greater rather than lesser included offenses on facts which reasonably support either. The record before us shows that the Attorney General has promulgated standards for the guidance of United States Attorneys in the exercise of their discretion in narcotics prosecutions. United States Attorneys’ Manual Title 2 (Crim.Div.) § 86.2.
. It is so if for no other reason than that appellant has made no showing that addiction compelled his possession of the 28 capsules. If we are to voyage outside the record as does Judge Bazelon, it might be fitting to note that one of appellant’s prior convictions was for sale of narcotics.
. See in this regard Recent Decision, 51 Calif.L.Rev. 219, 228 (1963); Note, 76 Habv.L.Rev. 75, 145 (1962).
. See e.g., Heard v. United States, No. 18290, 120 U.S.App.D.C. -, 348 F.2d 43 (showing of addiction alone insufficient to require Durham-McDonalA charge to jury), which rejects the obiter dicta observations of Brown v. United States, 118 U.S.App.D.C. 76, 331 F.2d 822, 823 (1964), and Castle v. United States, No. 17894, 120 U.S.App.D.C. -, 347 F.2d 492.