c284:No. 22444

ROBB, Circuit Judge,
dissenting:
I dissent. Almost four years after this case was tried in the district court the majority has retried it on issues that were raised for the first time by this court. Moreover, the majority has resolved those issues by brushing aside findings of the district court and resorting to speculation and surmise. I cannot agree to such procedures.
The appellant Mills was arrested and searched December 29, 1967. His motion to suppress was heard and overruled May 17, 1968 and he was tried and convicted on July 18 and 22, 1968. On his appeal before a division of this court he contended, as he had in the district court, that the search at the station-house was invalid because his arrest was a pretext adopted by the police to justify their search for narcotics. He did not claim that the police acted improperly in placing him in a cell; on the contrary his counsel accepted the premise that “there was a legitimate governmental interest, prior to Appellant’s actual incarceration, in a more thorough search of him to insure that the jail remained free of weapons to guard against Appellant’s escape, and to insure Appellant’s own safety — the very reasons mentioned by Officer Ivery.” (Appellant’s Brief, pps. 26, 27). On the premise that the appellant’s incarceration was proper, a majority of the division rejected his claim that his arrest was a pretext, and held that the stationhouse search was valid.
The opinion of the division was vacated and on February 26, 1971 the case was reargued before the court sitting en banc. During the argument a new theory of the case was advanced from the bench, namely, that unless Mills was told that he might post collateral his incarceration and the preceding search were improper. Thereafter, on May 27, 1971, with four judges dissenting, the court remanded the case to the district court with directions that it “take evidence and make findings as to (1) Whether at the time of the defendant’s arrest it was the function of the station-house clerk or some other police officer, under either regulation, written or oral instruction, or general practice, to advise the defendant that his was an offense for which collateral could be posted; (2) Whether this information was given to defendant; and (3) If so, why defendant failed to post collateral.”
Pursuant to the order of remand the district court took evidence on June 24, 1971 and thereafter made findings of fact. The court found that established police procedure required the police to inform Mills that he might post collateral for the traffic offense. The court found, however, that the second and third questions posed by the remand order could not be answered. Specifically, the court found that notwithstanding the appellant’s “apparent candor” in answering certain questions on the subject his “incontrovertible” testimony was insufficient to support his counsel’s “assertion” that he “clearly was not given the opportunity to post collateral”, (emphasis in original) The court concluded that whether Mills was given that opportunity remained “unclear” because (1) the stationhouse clerks and transporting officers on duty when Mills was booked were unable to recall what had occurred; (2) the government had been unable to locate two other officers who were present that night; (3) Craig Tatum, who was arrested with Mills, also had no recollection of the matter; and (4) Officer Ivery, the arresting officer, died in line of duty shortly after the trial of the case. In the circumstances the court found that questions two and three could not be answered, that any answers would require “speculation”. The court did find, however, that Mills knew about the collateral system in general and knew that he could have posted collateral for the offense of not having a valid driver’s permit.
The issues considered by the district court on remand were new issues, injected into the case for the first time by questions from the bench during the argument before this court. Having thus recast the case for the defense, the majority now brushes aside the conclusions of the district court on the new issues and makes its own finding that the police acted improperly. This finding is derived from the testimony of the appellant — hardly a disinterested witness —-which the district judge found unconvincing and which the government, because of the lapse of years and through no fault of its own, was unable to controvert. In my judgment this is not the right way to dispose of a criminal appeal. I think we should decide the ease on the issues raised and the record made at the trial. We should not retry it years later on a new theory that germinated in appellate cloisters after the witnesses for one party died, forgot the facts, or became unavailable. A criminal appeal should not be turned into a new trial in which the theory and strategy of the defense are refashioned by appellate judges and a judgment of a district court is reversed on grounds that have never been fairly litigated.
. Mills was not a guileless innocent. He is now serving a sentence for violations of the federal narcotics laws that occurred on December 19, 20, and 28, 1967. See United States v. Mills, 149 U.S.App.D.C. 345, 463 F.2d 291 (1972).

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