author: McENTEE, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and Teamsters Local 25, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor, v. METROPOLITAN PETROLEUM COMPANY OF MASSACHUSETTS, DIVISION OF PITTSTON CO., Respondent.
    No. 74-1181.
    United States Court of Appeals, First Circuit.
    Argued Oct. 8, 1974.
    Decided Dec. 11, 1974.
    Richard A. Cohen, Atty., Washington, D.C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert G. Sewell, Washington, D.C., were on brief, for petitioner.
    James T. Grady, Boston, Mass., with whom Grady & Kaplan, Boston, Mass., was on brief for intervenor.
    Alan S. Miller, Boston, Mass., with whom Stoneman, Chandler & Miller, Boston, Mass., was on brief, for respondent.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order to bargain collectively issued against Metropolitan Petroleum Company of Massachusetts, Division of Pittston Co. (hereinafter “the company”). The Board had certified the intervenor union as the exclusive bargaining representative of the company’s dispatchers and clerks employed at its terminal in Chelsea, Massachusetts. The sole issue before us is whether substantial evidence on the record as a whole supports the Board’s finding that the dispatchers are employees and not “supervisors” within the meaning of §§ 2(3) and 2(11) of the National Labor Relations Act, 29 U.S.C. §§ 152(3), 152(11) (1970). Since we hold the Board’s finding was not supported by substantial evidence, we decline to enforce the order.

The company is engaged in the storage, sale and delivery of heavy and light fuel oil and related products, and serves the Boston metropolitan area from its facility in Chelsea. The company’s management personnel include James Cavanaugh, who has overall responsibility for the operation; Paul Kelly, who is responsible for the terminal; John Hill, who is responsible for maintaining a proper fleet; and Walter Anderson, the delivery and dispatch superintendent. Under Anderson are five dispatchers, two of whom direct the distribution of light fuel oil and two of whom distribute heavy fuel oil. The fifth dispatcher is responsible for the night shift and distributes both light and heavy oil. In addition to the dispatchers, the company employs 25 to 30 permanent drivers and 60 to 70 seasonal drivers during the busy winter season.

The two distribution systems function somewhat differently. In the distribution of heavy oil the dispatcher receives orders either directly from the customer or through the company’s customer order section in Neponset — generally at least 24 hours prior to the delivery. The dispatcher then prepares the next day’s delivery schedule by assigning men and equipment (either a tractor-trailer unit or smaller “street” vehicle) to various jobs. Typically the dispatcher commits 70 per cent of his equipment and personnel by this process, while the remaining 30 per cent is held in abeyance to meet contingencies as they develop. Using his knowledge of the experience of the different drivers, the dispatcher decides each day which employees will comprise the 70 per cent and which employees the 30 per cent. If the company’s drivers and trucks are all out working and it appears to the dispatcher that the day’s deliveries cannot be completed, he must decide, keeping in mind the relative costs and the welfare of the drivers, whether to order company drivers to work overtime or whether to use outside trucks and drivers pursuant to lease arrangements confirmed by Anderson at the beginning of the winter season. The dispatcher can also decide to postpone delivery for a day or more. On the other hand, if more drivers are working than are needed, the dispatcher has authority to assign a driver either to the delivery of light oil or to the plant foreman for work around the plant.

In the distribution of light oil, used almost exclusively in private homes, the company utilizes a “degree date planning system” which informs the dispatcher how many customers are due for deliveries and who those customers are. These customers are then divided into geographic “zones,” which are established by Anderson in conjunction with the dispatchers approximately once a year, and these zones are combined to form the “route” of a particular driver. The combination of zones in a route varies in accordance with the judgment of the dispatcher, and the dispatcher frequently exercises his authority to transfer drivers from route to route or from zone to zone. In establishing the routes, the dispatcher must allocate equipment and drivers to accomplish the deliveries without over-committing company resources or unduly restricting the flexibility to meet contingencies. Thus, for example, the dispatcher must exercise his judgment to rearrange delivery schedules if a home customer with little or no fuel telephones to request an immediate delivery. As with the heavy oil dispatchers, the light oil dispatchers can and do assign overtime. Drivers delivering light oil must telephone the dispatcher in the late afternoon and report their progress. The dispatcher then must decide whether to defer remaining deliveries until the next day or order overtime work.

As winter approaches, the number of men needed to make deliveries increases. The dispatcher makes a determination each week of how many additional men he needs for the following week, and by referring to a seniority list Anderson makes arrangements for the required number of men to be recalled to work. The converse of this process operates in the spring. Since the drivers’ contract with the company requires one week’s notice to lay off seasonal drivers, the dispatcher has to predict the decline in company needs at least a week ahead of time. The dispatcher’s goal is to avoid keeping too many drivers on the payroll, thus raising labor costs, and simultaneously to avoid having too few drivers, thus necessitating overtime labor if delivery requirements are misjudged.

It is well settled that “§ 2(11) is to be read in the disjunctive, with the existence of any one of the statutory powers, regardless of the frequency of its exercise, being sufficient to confer supervisory status upon the employee.” Pacific Intermountain Express Co. v. NLRB, 412 F.2d 1, 3 (10th Cir. 1969); accord, NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff’d on other grounds, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971). The dispatchers’ duties as set out above clearly satisfy the first prong of the statutory test for “supervisors” in that the dispatchers possess the power to “transfer, . . . lay off, recall, . . [or] assign . . . other employees, or responsibly to direct them . . . . ” 29 U.S.C. § 152(11) (1970). However, an individual who possesses one of the statutory powers is a supervisor only if his “exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment.” 29 U.S.C. § 152(11) (1970). See Poultry Enterprises, Inc. v. NLRB, 216 F.2d 798, 802 (5th Cir. 1954). Relying on this prong of the definition of “supervisor,” the acting regional director found the dispatchers’ work to be “a routinely administered responsibility governed by functional experience and established practice.” We acknowledge that a reviewing court to a large measure will defer to the informed discretion of the Board on the question of supervisory status. See NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961), cited with approval in Marine Eng’rs Beneficial Ass’n v. Interlake Steamship Co., 370 U.S. 173, 179 n. 6, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962), and in NLRB v. Magnesium Casting Co., supra, 427 F.2d at 117. However, the only evidence in the record as to the dispatchers’ duties and powers is the unrebutted testimony of the company’s operations manager, James M.' Cavanaugh. After reviewing the record, we conclude that the Board’s finding lacked substantial evidence, “when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Cavanaugh’s testimony indicates that the dispatchers’ functions, far from being routine, included the maneuvering of drivers and departing from routine operations when necessary. Other courts have considered such judgmental direction of men in the field to require reversal of a Board’s finding that dispatchers were not supervisors, even when other evidence seemed to indicate that the jobs involved no supervisory role. See, e. g., Arizona Pub. Serv. Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971).

The Board’s position is that the dispatchers’ functions “amount to no more than the clerical transmission of information, such as would be performed by a switchboard operator.” Particular reliance is placed on NLRB v. City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965). In that case the court upheld a Board determination that switchboard operators for a taxi company constituted employees rather than supervisors. This case differs from City Yellow Cab in a number of respects, however. In City Yellow Cab the primary function of the switchboard operators was to receive telephone calls from customers for taxi service and to relay these requests to available cabdrivers. 344 F.2d at 579. Here the dispatchers must do considerably more than relay phone messages. They must plan the day’s deliveries in the most economical fashion, bearing in mind the customer requirements, the driver requirements, the available delivery equipment, the time required for delivery, and the experience of the driver. The general company guideline is that the customer must get his oil on time, but within that guideline the dispatcher exercised a large measure of independent discretion.

In City Yellow Cab the authority of the switchboard operators was circumscribed by a given set of rules on Sundays and during the night hours, and a superior would be called out of bed if a situation was not covered by these rules. In contrast, there is no evidence that these dispatchers were required to consult with their supervisor in extraordinary situations. The dispatchers deal with breakdowns or oil spills as they feel necessary. They either order overtime or hire extra trucks if they conclude postponement of deliveries is unwise. While it is true that they can only order overtime to men according to seniority and they can only hire extra trucks from among three to five prearranged companies, they nevertheless exercise the power to decide whether further work is needed and, in the case of heavy oil, which form it should take. These differences distinguish this case from City Yellow Cab. Both in the possession of statutory power to assign drivers and in the exercise of independent judgment this case seems more analogous to Pacific Intermountain Express Co. v. NLRB, supra, where the court denied enforcement of the NLRB order, holding that the three line dispatchers at the Denver terminal of a nationwide trucking concern were supervisors. We reach a similar result here, and decline to enforce the Board order. In reaching this decision we comment briefly on the Board’s brief where it states that “at least two of the Company’s four managers are present on Saturdays and Sundays” during the busy season’s 7-day work week. In point of fact, the record shows that during the busy season managers are present only during the day on Saturdays, whereas dispatchers are pres-sent throughout the forty-eight hours.

The petition of the Board for enforcement of its order is denied.

      . The order is reported at 209 N.L.R.B. No. 120 (March 25, 1974).

      . Section 2(11) defines “supervisor” as:
      "... any individual having authority, in the interest of the employer, to hire, transfer, susjjend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires tire use of independent judgment.” 29 U.S.C. § 152(11) (1970).

      . The average hourly wage of a dispatcher was about fifty cents less than that of a driver. Counsel for the Board argues from this that it is clear that the dispatchers do not outrank and responsibly direct the drivers. We find this argument unpersuasive. Any driver who wanted time off for personal reasons had to get his dispatcher’s permission, and time off was granted only without pay. In contrast, as circumstances permitted, a dispatcher could take time off if he needed it without a loss in pay. Moreover, dispatchers receive better vacation benefits than drivers. In addition, Cavanaugh stated that if the salary of Anderson, stipulated to be a supervisor, was broken down on an hourly basis, it would be less than a driver’s wage rate. This illustrates the basic flaw in the Board’s argument. Drivers may receive more than dispatchers simply because the multi-industry demand for their services places them in a better bargaining position. IVe conclude that the net differential in pay and benefits, if any, is not such that we must reject the other strong evidence that dispatchers possess supervisory powers.

      . The following testimony by Cavanaugh shows that the company’s delivery system is not as rigid and routine as the Board concluded :
      “Now he [the dispatcher] can either deliver early, he can deliver on time or he can deliver late. And how effectively he does this determines whether a customer gets a smaller delivery than what is ideal or whether he runs out. He must make that determination whether he can allow a customer to go, say two, three or four days beyond his delivery date and still have sufficient amount of oil [sic] left in his tank in order so that he doesn’t run out.”

      . We need not consider the company’s claim that the dispatchers have the power to suspend or effectively to recommend such action. Nor need we decide whether status as a supervisor only on the weekend would support a Board finding that the dispatchers are employees. Cf. Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1157-1158 (7th Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970).


source: Caselaw Access Project

author: KELLEHER, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Raymond MARQUEZ, Appellant.
    No. 1239, Docket 74-1894.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 16, 1974.
    Decided Nov. 4, 1974.

      Goldberger, Feldman & Breitbart, New York City (J. Jeffrey Weisenfeld, New York City, of counsel), for appellant.
    Paul J. Curran, U. S. Atty., New York City (T. Barry. Kingham, S. Andrew Schaffer, Asst. U. S. Attys., of counsel), for appellee.
    Before OAKES, Circuit Judge, FRANKED and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   KELLEHER, District Judge:

This appeal is from an order denying appellant’s motion to have his sentence as recorded in the written judgment and commitment, and docket entries corrected so as to conform with its original oral pronouncement. We reverse.

Appellant Raymond Marquez was convicted on September 11, 1969, in the United States District Court for the Southern District of New York of conspiracy to use interstate commerce and the mails to facilitate gambling in violation of 18 U.S.C. § 1952. On October 22, 1969, Judge Walter R. Mansfield orally sentenced Marquez, who was before him as required by Rule 43, F.R.Crim.P., “to be committed to the custody of the Attorney General or his authorized representative for imprisonment pursuant to his conviction on count 2 of the indictment for a term of five years, and that he be fined in addition the sum of $10,000, and that he be required to pay the cost of the prosecution in this case against him.” In the written judgment and commitment, dated and filed the same day, Marquez’s sentence was recorded as: “FIVE (5) YEARS on count 2 and FINED $10,000.00. The fine on count 2 is to be paid or the defendant is to stand committed until the fine is paid or he is otherwise discharged according to law. It is further ordered that the defendant is to pay the cost of prosecution against him in this case.”

By motion dated May 8, 1974, Marquez moved in the District Court, under Rule 36, F.R.Crim.P., to correct the judgment and commitment, and docket entries so as to conform to the oral statements of sentence. The explanation given for the long delay between sentencing and this motion is that Marquez was not informed of the commitment condition placed on the payment of the $10,000 fine until almost five years after the original sentence was imposed. On May 17, 1974, Marquez’s motion was denied by Judge Mansfield, now United States Circuit Judge.

While this Court has never directly decided the issue presented by this appeal, the law we think is clear. In a concurring opinion, in Sobell v. United States, 407 F.2d 180 (2d Cir. 1969), Judge Moore expressed, in dictum, what ought to be and what we now hold to be the law of this Circuit:

“It is the oral sentence which constitutes the judgment of the court, and which is authority for the execution of the court’s sentence. The written commitment is ‘mere evidence of such authority.’ Kennedy v. Reid, 101 U.S.App.D.C. 400, 249 F.2d 492, 495 (1957); see also Pollard v. United States, 352 U.S. 354, 360 n. 4, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). If, as the Government would have it, appellant was sentenced not when he appeared before Judge Kaufman but at some later time when the commitment was signed, the sentence would be invalid since appellant was not present. [Citations omitted.]” 407 F.2d at 184.

We are persuaded by the holdings in other circuits that the rule expressed by Judge Moore must control here. The Ninth Circuit recently noted that, “[i]n cases where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment, this Court has uniformly held that the oral pronouncement, as correctly reported, must control. The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant. [Citations omitted.]” United States v. Munoz-Dela Rose, 495 F.2d 253, 256 (9th Cir. 1974). See also: United States v. Morse, 344 F.2d 27, 29 n. 1 (4th Cir. 1965); Henley v. Heritage, 337 F.2d 847 (5th Cir. 1964); United States v. Raftis, 427 F.2d 1145 (8th Cir. 1970); United States v. Mason, 440 F.2d 1293 (10th Cir. 1971).

We find the oral pronouncement of sentence below to be clear and unambiguous. Any question of the judge’s intention to impose a committed fine as evidenced by the written judgment and commitment is of no consequence. See, Patterson v. United States, 386 F.2d 142 (5th Cir. 1967). For, in order for a fine to be a committed fine, it must have expression in the sentence. Hill v. United States ex rel. Wampler, 298 U.S. 460, 463-464, 56 S.Ct. 760, 762, 80 L.Ed. 1283 (1936). And, as noted above, Marquez was sentenced orally by the judge without the commitment condition, the written judgment and commitment being nothing more than mere evidence of the sentence imposed orally in court by the judge. Moreover, after imposing sentence in a defendant’s presence, the Court cannot thereafter increase the sentence with defendant absent. Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963).

Any argument that Rule 35, F.R.Crim.P., is the only proper basis for appellant’s motion and that this action is therefore barred by the 120-day limitation placed on motions to reduce a sentence that has been imposed in an illegal manner is also of no consequence. Appellant’s motion is in no way an attempt to correct a sentence imposed in an illegal manner. The sentence given Marquez in open court by the trial judge was the only valid sentence imposed. Its validity is not challenged nor is the manner in which it was imposed questioned. All that is asked of this Court is that, under Rule 36, F.R.Crim.P., the written judgment and commitment, and docket entries be brought into conformity with that sentence. Moreover, as the Supreme Court in Bartone indicated, the error, in enlarging the sentence in the absence of a defendant, is so plain in light of the requirements of Rule 43, F.R.Crim.P., that Courts of Appeals under their broad supervisory powers should correct such errors even if they have not been alleged on appeal. 375 U.S. at 53-54, 84 S.Ct. at 22.

We hold, therefore, that the order denying appellant’s motion, under Rule 36, F.R.Crim.P., to have his sentence as recorded in the written judgment and commitment, and docket entries corrected so as to conform with its original oral pronouncement is reversed. We remand this case to the District Court with directions to correct the written judgment and commitment, and docket entries in accordance with the oral pronouncement of sentence.

Reversed and remanded.


author: VOGEL, Senior Circuit Judge. LAY, Circuit Judge

text:
    NORTH HILLS BANK et al., Petitioners, v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent.
    No. 74-1267.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 14, 1974.
    Decided Nov. 14, 1974.
    Edward E. Schmitt, J. Nelson Happy and Roy R. Darke, Kansas City, Mo., for petitioners.
    Carla A. Hills, Asst. Atty. Gen., and Stephen F. Eilperin and Robert S. Greenspan, Attys., Dept, of Justice, Washington, D. C., for respondent.
    David F. Ulmer and Gerard K. Sandweg, Jr., St. Louis, Mo., for intervenors.
    Before VOGEL, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   VOGEL, Senior Circuit Judge.

In this case we are asked to review an order of the Board of Governors of the Federal Reserve System (Board) which approved the acquisition of Mercantile National Bank of Clay County (Bank), a newly chartered national banking institution, by Mercantile Bancorporation, Inc. (Mercantile), a registered bank holding company.

On October 11, 1973, Mercantile Ban-corporation, Inc., applied to the Board pursuant to § 3(a)(3) of the Bank Holding Company Act of 1956, as amended, for prior approval of the proposed acquisition of 100% of the voting shares (less directors qualifying shares) of Mercantile National Bank of Clay County, Kansas City, Missouri. On March 15, 1974, the Board approved the acquisition without a hearing. The petitioners, four small banks in Clay County, Missouri, have joined together to challenge in this review the approval given by the Board to Mercantile. This Court has jurisdiction under 12 U.S.C. § 1848.

Approval for the proposed acquisition of Bank by Mercantile is subject to the provisions of 12 U.S.C. § 1842(c), which provides:

(c) The Board shall not approve—
(1) any acquisition or merger or consolidation under this section which would result in a monopoly, or which would be in furtherance of any combination or conspiracy to monopolize or to attempt to monopolize the business of banking in any part of the United States, or
(2) any other proposed acquisition or merger or consolidation under this section whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint or trade, unless it finds that the anticompetitive effects of the proposed transactions are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.
In every case, the Board shall take into consideration the financial and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience and needs of the community to be served.

12 U.S.C. § 1848, affording judicial review, provides:

The findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive.

In asking that the order of the Board be set aside by this court and that the matter be remanded to the Board for reconsideration, petitioners raise two issues: (1) They contend that the Board failed to properly apply the standards set forth in 12 U.S.C. § 1842(c), supra, in concluding that the acquisition would not have anticompetitive effects; and (2) that the Board erroneously deferred to the apparent conclusion of the Comptroller of the Currency that Mercantile National Bank of Clay County would not be an illegal branch under Missouri law.

In its order approving the acquisition, the Board found and concluded upon substantial evidence undisputed herein that:

Applicant [Mercantile Bancorporation, Inc.], the largest banking organization and bank holding company in Missouri, controls 15 banks with aggregate deposits of approximately $1.2 billion, which represent 9.2 per cent of total commercial bank deposits in the State. Since Bank is a proposed new bank, its acquisition would neither eliminate any existing competition nor immediately increase Applicant’s share of commercial bank deposits.
Bank will be. located in a rapidly growing residential area in the northern part of the Kansas City banking market. It is anticipated that Bank will serve primarily southeast Platte County and southwest Clay County. Due in part to the proximity of the new Kansas City International Airport, it is expected that Bank’s proposed service area will continue to experience a steady growth in population with an attendant need for additional sources for banking services. While Applicant has three banking subsidiaries in the market and is the fifth largest banking organization therein, Applicant controls only 3.3 per cent of market deposits. Under such circumstances, the formation of a new bank is viewed as an attempt to provide additional banking services to a growing area and, from the facts of record, is not regarded as an attempt to preempt a market. (Emphasis supplied.)

Petitioners particularly challenge the finding by the Board to the effect that inasmuch as this is a new bank its acquisition would neither eliminate any existing competition nor immediately increase Mercantile’s share of bank deposits. However, the record indicates that the Board considered other relevant factors in measuring the potential anticompetitive effects of the proposed de novo expansion. The Board considered the relevant geographic market, the anticipated primary service area, and the size and statewide banking position of Mercantile.

Appellate review of a decision of the Board which is rationally based upon a full and complete record is severely limited. The Board’s particular competence to determine whether a bank holding company acquisition will have substantial anticompetitive effects has been recognized by the Congress and accepted by the courts. In Northwest Bancorporation v. Board of Governors, 303 F.2d 832 (8th Cir. 1962), this court, in sustaining a finding by the Board that that particular proposed acquisition would have substantial anticompetitive effects, stated, at 840-841:

* * * The Board upon whose special competency Congress relied in delegating the authority to approve or disapprove bank acquisitions by holding companies, concluded that in the overall picture the public interest would be adversely affected and competition would be lessened by the acquisition. Through use of the same facts petitioner finds that by the acquisition competition would be enhanced and the public welfare unimpaired. This is no more than a disagreement with the Board’s conclusion. The responsibility of making the determination was vested by Congress with the Board and its conclusion must prevail.

This court also said in the same case, at page 841:

* * * Where basic facts are not in dispute, it is then particularly true that the Board here, or a like governmental agency under similar situations, brings to bear its experience and its particular expert judgment. (Citations omitted.)

That is precisely the situation herein. The four petitioning banks merely disagree with the Board’s conclusion. The facts are not in dispute and accordingly the view of the Board must prevail, regardless of whether or not this court might have conclusionary views contrary to those of the Board. Congress rested the power of approval or disapproval squarely with the Board and this court may not substitute its judgment for that of the Board. See, also, Commercial Nat. Bank of Little Rock v. Board of Governors, 451 F.2d 86, 90 (8th Cir. 1971).

The contention of the petitioners that the Board erroneously deferred to the apparent conclusion of the Comptroller of the Currency that the Bank would not be an illegal branch under Missouri law is completely without foundation. It was entirely appropriate and necessary for the Board to determine whether the proposed acquisition would violate Missouri’s branch banking statute. Gravois Bank v. Board of Governors, 478 F.2d 546 (8th Cir. 1973). In doing so, it merely noted that the Comptroller of the Currency had recommended approval of the application and that his office had granted preliminary approval for the charter of the bank, “ * * * apparently concluding that it would not be an illegal branch under applicable Missouri law.” The Board nevertheless continued in its finding that the bank would be a separate corporation with its own capital stock and loan limit based on such capital stock, managed by its own officers, its board of directors generally separate and independent from the boards of the applicant, and the applicant’s subsidiaries, and many other facts justifying its independent judgment that “upon consummation of the proposed acquisition, a unitary operation will not exist between Bank and any of Applicant’s other banking subsidiaries in contravention of Missouri’s branching law.”

We must conclude that the Board’s action should be and is approved.

LAY, Circuit Judge

(concurring).

I concur in Judge Vogel’s well-analyzed opinion. Nonetheless I am troubled enough to comment on a collateral matter. Shortly before the scheduled argument in this case, the parties by and through their respective counsel stipulated to waive oral, argument. No reasons were given. When lawyers agree to waive appellate argument, my initial thoughts are that (a) one party (generally the appellant) must feel there is little merit to the appeal, and (b) both counsel must feel that oral argument before the appellate court is not very meaningful. The latter rationalization surely misses its mark.

This is not an ordinary case. It presents complex legal issues, with subtle and difficult questions. The issues relate to a narrow area of the law, unfamiliar terrain to some judges, like myself, in which we look forward to the aid and expertise of experienced counsel at oral argument. If the result here is in error (judges are fallible human beings), the lawyers and the parties may attribute it to our inability to totally perceive the significance of portions of the written record or to fully comprehend the law briefed. Many judges listen better than they read — at least I do. When oral argument is waived, the parties lose their only real opportunity to excite the minds and sharpen the legal reasoning of at least the two judges who will not undertake the same in-depth analysis and research as the judge who drafts the opinion. Waiving the opportunity for oral argument, in my judgment, is advocacy at its poorest level.

Mr. Justice Frankfurter once said: “Every case worthy of an appeal is worthy of an argument.” Sometimes when the case is patently not worthy of an appeal, this court will screen the case for “no argument.” We do this not to save time for the court (oral argument takes little time for judges) but because the court feels the issue does not merit oral argument. But the converse is generally true when, as here, the court sets the case on the argument calendar. Karl Llewellyn has observed:

The brief can develop the frame; but the oral argument must get the case set into the desired frame, and for keeps. I do not see how so delicate a task can responsibly be left to paper when an accepted institutional pattern offers a way of dealing with the tribunal face to face.

K. Llewellyn, The Common Law Tradition: Deciding Appeals 240 (1960).

We need to strive for excellence on appeal as well as in trial.

      . 12 U.S.C. § 1842(a)(3).

      . Arthur T. Vanderbilt once reflected:
      The argument of an appeal is the climax of a case. . . . You face a select audience that is experienced, professionally critical but not unfriendly, and keenly interested in knowing the facts and applying the law to them and more or less prepared for the occasion. The challenge is great; the entire outcome of the case, victory or defeat, will be influenced by the effectiveness of your oral argument.
      A. Vanderbilt, Forensic Persuasion, The 1950 John Randolph Tucker Memorial Lectures at Washington and Lee University 14-15 (1950).


author: STEVENS, Circuit Judge. FAIRCHILD, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Daniel Patrick ROSSELLI, Defendant-Appellee.
    No. 73-1671.
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 1974.
    Decided Dec. 4, 1974.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Royal B. Martin, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellant.
    Arthur J. O’Donnell, Chicago, 111., for defendant-appellee.
    Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

The government asks us to overturn a finding that the warrantless, forcible entry into defendant’s apartment was not justified by the officers’ belief that the defendant was about to destroy a large quantity of marijuana that had been delivered to him about an hour earlier. Although we disagree with the district judge insofar as he found no probable cause to believe that defendant was in possession of contraband, we cannot say that his refusal to find justification for the warrantless entry was clearly erroneous. We therefore affirm his suppression order.

On a Sunday morning in April of 1972, five government agents watched a vehicle occupied by Allen Anderson, his wife, and their two children as it parked in front of an apartment building at 2056 West 135th Place in Blue Island, Illinois. Anderson took a large cardboard box out of the car and carried it into the building; he returned a few minutes later with the box which then appeared to be empty.

The Andersons, followed by the agents in three cars, then drove to an alley at the rear of 1326 West 127th Place in Calumet Park; Anderson removed another large cardboard box from his car and carried it up the back stairway into the apartment of Philip Rosselli, defendant’s brother. Three agents entered the kitchen through a screendoor, saw Anderson and Philip Rosselli in an adjacent bedroom examining the contents of the box, and placed them under arrest. A young lady named Elizabeth Ackley, who was living with Philip Rosselli, was present in the apartment but not arrested.

The cardboard box in Philip’s apartment was found to contain packages of marijuana wrapped in brown paper. After the arrest, Mr. and Mrs. Anderson both advised the agents that there was additional marijuana in the trunk of their car and gave them their car keys; an examination of the trunk revealed two more cardboard boxes containing bags of marijuana. The agents placed Mrs. Anderson under arrest and decided to return to the apartment building on 135th Street.

They left the two Anderson children with Miss Ackley in Philip’s apartment and departed in four vehicles. According to their testimony, it was not until after they were under way that they asked Anderson about his first delivery. When asked, he stated that the first cardboard box had also contained marijuana and that he had left it with the defendant in apartment No. 6. At this point, in view of the fact that Anderson’s statement was an admission against his penal interest, and was corroborated by circumstances observed directly by the agents themselves, they clearly had probable cause to believe that defendant then possessed contraband in his apartment. We reject the district court’s contrary finding on this point as clearly erroneous.

Ten or fifteen minutes after leaving Philip’s apartment building, the agents arrived at defendant’s, and proceeded to apartment No. 6. After they knocked on the door, they heard an 'indistinct response — either “Who?’ or “What?” An agent then knocked again, called out defendant’s name, and stated: “It’s the police, we want to talk to you.” They then heard a scuffling movement inside the apartment, someone engaging the front door chain lock, a voice calling, “Don’t open the door for anybody,” and footsteps running from the door to the rear of the apartment. The agents thereupon kicked down the door and entered.

They saw a child standing in the livingroom, defendant in the hall, a clear plastic bag of marijuana on the kitchen table, and several brown paper bags of marijuana in the bedroom. Defendant was arrested, and the evidence was seized.

After indictment charging a violation of 21 U.S.C. § 841(a)(1), defendant’s motion to suppress was sustained. The district court heard evidence and found that there had not “been a showing in the record to support a finding that the Agents could ‘reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.’ Accordingly, the Court finds that the search and seizure in the instant case cannot be justified on the basis of the ‘emergency doctrine’ rule.”

The burden of justifying a warrantless, forcible entry into a private home is, of course, upon the government: See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. In that setting, the citizen is entitled to maximum expectation of privacy and has no obligation to respond to a Sunday morning knock at his front door. The government contends, however, that two separate circumstances created an emergency which justified the failure to obtain a warrant: First, that the risk that Elizabeth Ackley might telephone a warning to defendant made prompt action imperative; and second, that the reaction to the agents’ knock at defendant’s front door indicated that the marijuana was about to be removed or destroyed.

I.

There is no merit to the first argument. In United States v. Rubin, on which the government relies, the person who was arrested a few minutes before the warrantless search had yelled to gas station attendants and spectators, “Call my brother.” In that situation there was no possible way in which the agents could have prevented such a call and they were entitled to assume that someone would, in fact, make it. Here, neither the Andersons nor defendant’s brother made any such request of Miss Ackley; moreover, if the risk of such a call created an apparent emergency, it could have been avoided by leaving an agent with Miss Ackley and the Anderson children while a warrant was being secured.

We recognize that the evidence indicates that the agents did not learn defendant’s identity or the number of his apartment until they had left Miss Ackley. In view of the nature of the Andersons’ response to the agents’ inquiries, however, it is reasonable to infer that this information could have been obtained before they left. More importantly, this added information did not sufficiently increase the likelihood of a telephone call from Ackley to defendant to create an emergency that did not otherwise exist.

II.

There is greater force to the government’s argument that the response to the knock at defendant’s door justified their conclusion that an immediate entry was essential to prevent the destruction of evidence. Nevertheless, we accept the district court's evaluation of this branch of the case.

The standard by which the government’s action is to be tested is that a warrantless search is not justified unless the agents “reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.” United States v. Rubin, 474 F.2d 262, 268 (3rd Cir.) We agree with Judge Rosenn’s scholarly exposition of the reasons why the government’s burden does not require proof of actual knowledge that evidence is being destroyed or removed. But when the emergency justification is advanced, we believe it is appropriate to appraise the agents’ conduct during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the front door.

Unlike the case before us, in Rubin the officers dispatched an agent to prepare and secure a search warrant as soon as they had the necessary information ; they had no opportunity to avoid the critical emergency which developed thereafter. In this case, the evidence does not adequately explain why no attempt to obtain a warrant was made, or why no consideration was given to placing the defendant’s apartment under surveillance while an attempt to secure a warrant was being made. Had defendant sought to leave during such a period, he could have been arrested forthwith; and prior to the knock at the door a conclusion that marijuana was being destroyed could not have been justified. For presumably, if Ackley had telephoned, the contraband would already have been destroyed or removed; alternatively, if Ackley did not call, there would be no basis for believing that defendant had any special reason to destroy his valuable merchandise. In short, even taking into account the evidence relating to the difficulty of obtaining a warrant on a Sunday morning, the government has not satisfactorily explained why the agents made no attempt to secure one.

We do not suggest that the emergency which did develop was contrived by the agents. They had a right to pursue their investigation by seeking voluntary cooperation from a suspect. But certainly the emergency which did ensue was foreseeable. Moreover, this type of situation may reoccur repeatedly and might lend itself to too easy a by-pass of the constitutional requirement that probable cause should generally be assessed by a neutral and detached magistrate before the citizen’s privacy is invaded. See Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564. This is the kind of situation in which there is an especially high risk that error may be committed even when officers are acting in the best of faith. For, as this record demonstrates, it is easy to misinterpret sounds on the other side of a closed door.

Unlike the situation in United States v. Frierson, 299 F.2d 763 (7th Cir. 1962), there was no unambiguous directive to destroy evidence. In that ease, the shout, “Ged rid of the stuff; get rid of the spoon,” was plainly audible through a partially open door.. Here, even if we assume that a contrary finding might have been justified by the evidence, we cannot brand the district court’s assessment of the total situation as clearly erroneous.

In reaching this conclusion we have attached importance to the character of defendant’s expectation of privacy, his unquestioned right to refuse admittance to his home unless a demand was supported by a warrant, the government’s opportunity to anticipate and avoid the need to rely on an emergency justification, the less-than-compelling character of the evidence that a true emergency did exist, and finally, to the quality of the social interest which the invasion of the defendant’s home was intended to vindicate. We accept the premise that the importance of seizing mere evidence —as opposed to contraband or the fruits or instrumentalities of crime — may justify a warrantless entry in extreme cases. But when the emergency involves no grave danger to the lives of the officers or others, and when the event the officers were seeking to prevent would itself remove the contraband from circulation, society’s interest in upholding the seizure weighs less heavily against the individual’s interest in privacy than it might in other pressing circumstances

The suppression order is

Affirmed.

FAIRCHILD, Circuit Judge

(concurring). I can agree with affirmance. The circumstances confronting the agents up to and just before their entry were sufficiently equivocal so that the view of the district court as to lack of exigency justification was not clearly erroneous.

I wish, however, to emphasize that there should be no rule that when officers first come into possession of probable cause in a situation generally similar to this case, choose to make an investigative visit, seeking the suspect’s voluntary cooperation, and thus pass up an opportunity to obtain a warrant, they risk suppression if the suspect attempts to destroy evidence and the officers enter without a warrant to prevent such destruction.

      . Our jurisdiction of the government’s appeal is conferred by the second paragraph of 18 U.S.C. § 3731.

      . See United States v. Carmichael, 489 F.2d 983, 986-987 (7th Cir. 1973), decided three months after Judge Lynch’s order below.

      . App. p. 9. The internal quotation is the statement of the standard by Judge Rosenn in United States v. Rubin, 474 F.2d 262, 268 (3rd Cir. 1973).

      . Both parties have proceeded on the assumption that, absent a finding that the circumstances confronting the agents amounted to an “emergency,” a warrant would have been required for entry into the defendant’s apartment. Since one of the purposes of the entry was the seizure of the marijuana, this assumption is unquestionably correct. Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514. We therefore are not confronted with the question whether a search warrant, or indeed any warrant, would have been required if the sole purpose of the entry had been to arrest the defendant since the agents had probable cause to believe he was committing an offense. See Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 32 L.Ed.2d 152; Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514, indicating that the precise point has not been squarely decided by the Supreme Court. See also Coolidge v. New Hampshire, 403 U.S. 443, 477-478, 91 S.Ct. 2022, 29 L.Ed.2d 564; Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 388-391 (D.C.Cir. 1970) (en banc); see Vance v. State of North Carolina, 432 F.2d 984, 990 (4th Cir. 1970). See generally Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995 (1971).

      . 474 F.2d 262 (3rd Cir. 1973).

      . We are satisfied that United States v. Mapp, 476 F.2d 67 (2d Cir. 1973) and United States v. Evans, 481 F.2d 990 (9th Cir. 1973), are also distinguishable. In neither of those eases were the officers in a position to prevent the exigent circumstances that arose; in both cases the likelihood of the destruction of vital evidence was greater than here.

      . In appraising the necessity of making an immediate search of a house in order to prevent the destruction of narcotics in Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, Mr. Justice Black stated, in dissent: “I agree that the opportunity to obtain a warrant is one of the factors to be weighed in determining reasonableness.” Id. at 40, 90 S.Ct. at 1975.

      . Since there was adequate probable cause to arrest, no arrest warrant would have been needed, See Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (opinion of Justice Clark).

      . It is of interest that even after the agents knocked at the door and announced their office, no effort to destroy any marijuana appears to have been made.

      . The officers did not know precisely what was said in response to their first knock and erroneously concluded that persons in the apartment were destroying the marijuana.

      . See Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782.

      . See McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (Jackson, J., concurring at 459-460); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 392 (1970) (en banc); United States v. Bell, 464 F.2d 667, 675 (2d Cir. 1972) (Friendly, J., concurring).


author: MANSFIELD, Circuit Judge:

text:
    Stuart D. WECHSLER, on behalf of himself and all others similarly situated, Plaintiff-Appellant-Appellee, v. SOUTHEASTERN PROPERTIES, INC., Defendant-Appellee-Appellant, Monarch Funding Corp., et al., Defendants-Appellees.
    Nos. 151 and 252, Dockets 74-1596 and 74-1655.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 4, 1974.
    Decided Nov. 4, 1974.

      Edward Labaton, New York City (Douglas A. Cooper, Shatzkin & Cooper, New York City, of counsel), for plaintiff-appellant-appellee.
    Arnold 1. Burns, New York City (John L. Amabile, Carl G. Bartholomaus, Schwartz, Burns, Lesser & Jacoby, New York City, of counsel), for defendant-appellee Southeastern Properties, Inc.
    Marvin Luboff, New York City (Kane, Kessler, Proujansky, Preiss & Permutt, P. C., New York City, of counsel), for defendant-appellee Monarch Funding Corp.
    Charles J. Acker, New York City (Allan I. Kornblau, Hart & Hume, New York City, of counsel), for defendantsappellees James Henry and Henry, McCord, Forrester & Richardson.
    Howard J. Goldstein, New York City, for defendant-appellee Schneider & Baratta.
    Before HAYS, ANDERSON and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Stuart D. Wechsler appeals from a district court opinion and order dated April 4, 1974, 63 F.R.D. 13, denying his application for attorney’s fees and costs in a securities fraud action after it had been mooted by the New York State Attorney General’s settlement of an independent action which the Attorney General had instituted as the result of his own earlier investigation into the same conduct. The central question raised by this appeal is whether the district court erred in finding that plaintiff’s counsel was not of any direct assistance in bringing about the settlement. We hold that there was no error and affirm. Upon a cross-appeal by Southeastern Properties, Inc. (“Southeastern”) we also affirm the court’s denial of Southeastern’s application for litigation expenses and costs.

On March 17, 1972, Southeastern made a public offering of a new issue of 200,000 shares of its stock pursuant to a prospectus after registration of the issue with the Securities and Exchange Commission. A few days later the New York State Attorney General commenced an investigation of the public offering to determine whether the. sale of Southeastern stock in New York had violated that state’s Blue Sky laws and ordered trading in the stock suspended, suggesting that the issue should be rescinded. On May 2, 1972, this action was commenced as a class action on behalf of Wechsler and all persons who purchased any of the publicly offered shares of stock from underwriters or dealers involved in the offering, or in the open market thereafter, and who had either retained their stock or sold it at a loss. Invoking federal jurisdiction under § 22(b) of the Securities Act of 1933 and § 27 of the Exchange Act of 1934, the complaint alleged two material misstatements or omissions: (1) the prospectus did not disclose that Southeastern had failed to comply with the filing requirements of the states of New York and New Jersey, as a result of which the shares were not freely tradeable there, and (2) the prospectus did not disclose the pendency of merger negotiations between Southeastern and Apollo Industries, Inc. The complaint was later amended to add that the prospectus had failed to disclose that the assets reflected in Southeastern’s financial statements were artificially inflated. Wechsler requested relief in the form of rescission or damages.

Wechsler’s attorney commenced this lawsuit after learning of the Attorney General’s investigation into the transactions forming the basis of the suit (the Attorney General’s investigation is mentioned in Wechsler’s complaint) but did not discuss it with the Attorney General’s office until late June 1972. In September 1972 the Attorney General commenced a formal action against Southeastern in New York State Supreme Court alleging violations of certain provisions of Article 23-A of the New York General Business Law and requesting rescission of the public offering. ***On November 21, 1972, the district court directed that Wechsler’s motion for a class action determination pursuant to Rule 23, F.R.Civ.P., be held in abeyance until it could be determined whether the Attorney General’s state court action would be adequate to protect the interests of Wechsler and the class which he sought to represent.

On December 21, 1972, the parties to the Attorney General’s state court action agreed to a consent injunction which directed Southeastern to make a tender offer to repurchase the publicly offered stock at the price at which it was first offered, $5 per share. After Southeastern had liquidated several of its properties, its transfer agent, on March 30, 1973, mailed a copy of the tender offer to each individual or broker that was an owner of record of Southeastern shares on December 21, 1972. As of April 3, 1974, almost 97 % of the shares originally sold, including all but 10 shares held by Wechsler, had been tendered and approximately 90% ($904,000) of the funds raised in the original offering had been returned. On the same date Assistant Attorney General Thomas N. Dolan reported to the district court that Southeastern had complied with the essential provisions of the tender offer arid that the Attorney General’s action had basically been concluded.

In the meantime, on July 31, 1973, a hearing was held by the district court upon Wechsler’s application for attorney’s fees and Southeastern’s motion to dismiss the action and its application for fees and costs. Decision was reserved on all of the motions and applications, pending this Court’s decision in Grace v. Ludwig, 484 F.2d 1262 (2d Cir. 1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1610, 40 L.Ed.2d 110 (1974), then sub judice and later handed down on September 12, 1973, which the district court thought might be of help in resolving the attorney’s fees issue. In an opinion dated April 4, 1974, Judge Knapp concluded that the tender offer and rescission negotiated by the Attorney General had adequately protected the interests of Wechsler and the proposed class, thus in effect mooting Wechsler’s suit and rendering further prosecution of it unnecessary. He dismissed the action and denied all applications for fees and costs, finding that neither plaintiff nor his attorney was of any direct assistance to the Attorney General. He further found no merit in Southeastern’s argument that it was entitled to attorney’s fees and costs because of alleged undue harassment by plaintiff.

Discussion

Under the “private attorney general” doctrine an award by the court of counsel fees for services that have produced a monetary or other benefit to a corporation or class is favored as a means of encouraging private enforcement of the securities laws for the protection of the public investor. See, e. g., Mills v. Electric Auto-Lite Co., 396 U. S. 375, 389-397, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Grace v. Ludwig, supra; Rosenblatt v. Northwest Airlines, Inc., 435 F.2d 1121, 1124 (2d Cir. 1970). An essential condition precedent to the award, however, is a showing that the attorney’s services were a competent producing cause of the supposed benefit conferred. Cf. Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 389-397, 90 S.Ct. 616; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); White v. Auerbach, 500 F.2d 822 at 829 (2d Cir. 1974); Blau v. Rayette-Faberge, Inc., 389 F.2d 469 (2d Cir. 1968); Gilson v. Chock Full O’Nuts Corp., 331 F.2d 107 (2d Cir. 1964). Where, as often occurs, the private action follows upon the coattails of a government suit or investigation which has provided the basis for the claim, it has been suggested that the court’s inquiry be directed at whether the services rendered played any part in achieving a successful result rather than at the encouragement of the litigation by increasing the fee through the use of a contingency factor. See Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir. 1973). Since the private investor-plaintiff usually seeks relief not available to the government in the form of substantial damages, see West Virginia v. Chas. Pfizer & Co., 314 F.Supp. 710 (S.D.N.Y.1970), affd., 440 F.2d 1079 (2d Cir.), cert. denied sub nom., Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971), which, if awarded, will serve as an additional deterrent, an award of counsel fees to the “coattail” plaintiff is still recognized, the principal objection being the excessiveness of the award rather than its allowance by the court. See, e. g., City of Detroit v. Grinnell Corp., 495 F.2d 448, 468-474 (2d Cir. 1974). However, the mere institution of a stockholder’s action does not guarantee that the plaintiff will be awarded attorney’s fees upon his suit being mooted by the successful prosecution or settlement of some other action. Causation must still be shown and the burden of establishing it remains with the plaintiff. Chrysler Corp. v. Dann, 223 A.2d 384, 386-387 (Del.1966).

In the present case Wechsler, in an effort to establish a causal connection between his attorney’s efforts and the rescission negotiated by the Attorney General, submitted affidavits and exhibits tending to show that his action was independent of the Attorney General’s action, was meritorious in its own right, and was prosecuted diligently. He contends that these factors lead to the inevitable conclusion that the maintenance of his action contributed to the pressure on the defendants to settle with the Attorney General. He finds support for his contention in the fact that Judge Knapp, although finding that Wechsler was not of any direct assistance to the Attorney General, simultaneously stated that “the pendency of this [Wechsler’s] action may have made the defendant Southeastern more amenable to settle with the Attorney General”. However, Wechsler did not offer to submit any direct or circumstantial evidence (such as affidavits from the Attorney General’s office or from the defendants) tending to show that he or the pendency of his action materially assisted the Attorney General’s investigation and prosecution of the state court action or added any pressure leading to settlement. Indeed, at oral argument Wechsler’s counsel frankly conceded that if the matter were remanded for a hearing he knew of no further evidence that could be offered to establish a causal connection between Wechsler’s suit and the rescission offer. Thus this case is quite different from Gilson v. Chock Full O’Nuts Corp., supra, where the derivative stockholder’s attorney rendered valuable services that led the corporation to institute the § 16(b) actions which were successfully settled.

Wholly aside from Wechsler’s failure to prove that his attorney’s services played any part in obtaining the settlement, there is countervailing evidence in the record to the effect that the Attorney General’s proceeding was completely responsible for the result achieved. In the first place, the Attorney General’s investigation had not only predated but inspired Wechsler’s suit. The Attorney General, furthermore, had the personnel, legal authority and statutory basis to prosecute his action and secure the same relief sought by Wechsler. Lastly the available evidence reveals that the Attorney General vigorously pursued his investigation without benefit of Wechsler’s suit and achieved the settlement shortly after the Attorney General’s own suit was initiated. Under all of these circumstances, notwithstanding the ambivalent finding of the district court on the subject, it is clear from reading Judge Knapp’s opinion as a whole, to which great weight should be accorded, cf. City of Detroit v. Grinnell Corp., supra, 495 F.2d at 454-455; Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir. 1971), and from our review of the record, that Wechsler failed to prove any contribution toward achieving the settlement.

In the absence of proof that Wechsler’s suit was a competent producing cause of the settlement we do not reach the more difficult question of whether Grace v. Ludwig, supra, would in any event control the result here or whether it is distinguishable on legally significant grounds (e. g., that the SEC’s administrative proceeding in Grace was mandated by § 17(b) of the Investment Company Act whereas the New York State Attorney General’s investigation and institution of suit for violation of Article 23-A of the New York General Business Law was discretionary, N.Y. Gen.Bus.Law §§ 352 and 353).

The district court’s order denying Southeastern’s application for litigation expenses and costs must likewise be affirmed in the absence of evidence of vexatious conduct of the type presented in Stolberg v. Members of the Board of Trustees, 474 F.2d 485 (2d Cir. 1973).

      . Wechsler’s action was dismissed in the same opinion and order, but he does not appeal from that dismissal.

      . N.Y.Gen.Bus.Law, Art. 23-A, McKinney’s Consol.Laws, c. 20.

      . Wechsler alleged violations of §§ 11, 12(2) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77k, 77l(2) & 77q(a), § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), Rule 10b-5, 17 C.F.R. § 240.-10b-5, N.Y.Gen.Bus.Law §§ 352-c & 352-e, and common law principles.

      . The Attorney General alleged that Southeastern stock had been sold without filing as required by N.Y.Gen.Bus.Law § 352-e and that the prospectus contained material misstatements or omissions in violation of N.Y.
      Gen.Bus.Law § 352-c.
      Section 352-e provides in part:
      “1. (a) It shall he illegal and prohibited for any person, partnership, corporation, company, trust or association, or any agent or employee thereof, except companies organized under and pursuant to the provisions of articles nine or twelve of the public housing law or chapter eight hundred forty-five of the laws of nineteen hundred forty-two, to make or take part in a public offering or sale in or from the state of New York of securities constituted of participation interests or investments in real estate, mortgages or leases, including stocks, bonds, debentures, evidences of interest or indebtedness, limited partnership interests or other security or securities as defined in section three hundred fifty-two of this article, when such securities consist primarily of participation interests or investments in one or more real estate ventures, including cooperative interests in realty, unless and until there shall have been filed with the department of law, prior to such offering, a written statement or statements, to be known as an ‘offering statement’ or ‘prospectus’ concerning the contemplated offering which shall contain the information and representations required by paragraph (b) of this subdivision unless the security offering is exempted hereunder or under section three hundred fifty-nine-f, subdivision two, of this article by rule or action of the attorney general.”
      Section 352-c provides in part:
      “1. It shall be illegal and prohibited for any person, partnership, corporation, company, trust or association, or any agent or employee thereof, to use or employ any of the following acts or practices:
      (a) Any fraud, deception, concealment, suppression, false pretense or fictitious or pretended purchase or sale;
      (b) Any promise or representation as to the future which is beyond reasonable expectation or unwarranted by existing circumstances :
      (c) Any representation or statement which is false, where the person who made such representation or statement: (i) knew the truth; or (ii) with reasonable effort could have known the truth; or (iii) made no reasonable effort to ascertain the truth; or (iv) did not have knowledge concerning the representation or statement made; where engaged in to induce or promote the issuance, distribution, exchange, sale, negotiation or purchase within or from this state of any securities or commodities, as defined in section three hundred fifty-two of this article, regardless of whether issuance, distribution, exchange, sale, negotiation or purchase resulted.”

      . The district court’s findings on this issue are somewhat equivocal. At one point it is conceded that Wechsler’s action “may have made the defendant Southeastern more amenable to settle with the Attorney General.” However, it is clear from reading the whole opinion and from a statement immediately following the quoted one to the effect that neither Wechsler nor his attorney “was of any direct assistance to the Attorney General” that the district court based its decision on Wechsler’s failure to prove any contribution to achieving the settlement.

      . Wechsler did'not take any serious steps toward pretrial discovery until after the Attorney General had successfully negotiated the settlement. Indeed, most of plaintiff’s pretrial discovery was actively undertaken only after dismissal of his suit became imminent.

      . It is questionable whether Wechsler would be able to recover attorney’s fees from Southeastern even if he had been able to prove some causal connection between his efforts and the settlement as there is no evidence that Southeastern was enriched by the whole affair. See Mills v. Electric Auto-Lite Co., supra. No fund was created as a result of the rescission and the only group to benefit were the stockholders of the corporation.


author: TALBOT SMITH, Senior District Judge.

text:
    Joseph B. ZYCHINSKI and Marie H. Zychinski, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. ESTATE of Henry J. RICHTER, Deceased, et al., Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    Nos. 74-1180 and 74-1181.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Nov. 25, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 17, 1974.
    Harvey G. Schneider, St. Louis, Mo., for appellants.
    George G. Wolf, Atty., Tax. Div., Dept, of Justice, Washington, D.C., for appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

These appeals are taken from judgments of the United States Tax Court assessing tax deficiencies against the taxpayers of some $1,300 in No. 74-1180 and some $125,000 in No. 74-1181. The facts are not in dispute and are set out in more detail in the opinion of the tax court. The issue presented involves the interpretation of Int.Rev.Code of 1954, § 1372(e)(5), relating to the termination of a corporation’s “subchapter S” status. In 1966 and 1967 Henry J. Richter & Company, Inc. (hereinafter the Company) reported net operating losses which it attempted to pass through to its shareholders, the taxpayers here, under subchapter S. The Commissioner argued and the tax court held, however, that the Company’s subchapter S status had terminated under Int.Rev.Code of 1954, § 1372(e)(5) since in 1966 more than twenty percent of its “gross receipts” were “passive investment income,” to-wit: gains from the “sales or exchanges of stock or securities.”

As applicable to the years in question § 1372(e)(5) provided:

PASSIVE INVESTMENT INCOME.—
(A) Except as provided in subparagraph (B) [not applicable here], an election under subsection (a) made by a small business corporation shall terminate if, for any taxable year of the corporation for which the election is in effect, such corporation has gross receipts more than 20 percent of which is passive investment income. Such termination shall be effective for the taxable year of the corporation in which it has gross receipts of such amount, and for all succeeding taxable years of the corporation.
-X- -X- -X- -X- -X- *
(C) For purposes of this paragraph, the term “passive investment income” means gross receipts derived from royalties, rents, dividends, interest, annuities, and sales or exchanges of stock or securities (gross receipts from such sales or exchanges being taken into account for purposes of this paragraph only to the extent to gains therefrom).

Taxpayers do not dispute that well over twenty percent of the Company’s gross receipts were gains from the sales or exchanges of stock or securities. They contend, however, that such was not “passive investment income” within the meaning of the statute. The thrust of their argument is that since the Company was a securities dealer “actively” engaged in the business of trading stocks from and for its “inventory,” such gain was neither “passive” nor “investment” income.

The difficulty with taxpayers’ position, as the Commissioner points out, is that they are “attempting to define colloquially a term which is already defined statutorily.” To determine the meaning of “passive investment income” as used in § 1372(e)(5)(A) our reference is directly to the definitional language in § 1372(e)(5)(C):

(C) For purposes of this paragraph, the term “passive investment income” means gross receipts derived from royalties, rents, dividends, interest, annuities, and sales or exchanges of stock or securities (gross receipts from such sales or exchanges being taken into account for purposes of this paragraph only to the extent of gains therefrom).

We find no ambiguity in the language “gross receipts derived from * * * sales or exchanges of stocks or securities” that would justify resort to the commonly understood meaning of “passive investment income” for clarification. Even if such ambiguity existed, we cannot say that the Commissioner’s interpretation, promulgated by regulation, is “unreasonable and plainly inconsistent” with the statute. As succinctly stated by the tax court in Buhler Mortgage Co. v. Commissioner, 51 T.C. 971 (1969), aff’d per curiam, 443 F.2d 1362 (9th Cir. 1971):

The standard used by the Code and regulations does not permit us to look behind the normal characterization of a corporation’s receipts in order to classify them as active or passive. * * * We conclude that the test established is one which requires us to look only to the plain meaning of the words used to define the income, not to the activity required to produce it. 51 T.C. at 977-978.

We have not been unmindful of the criticisms leveled at the tax court’s position. Principally, it is urged that it serves no substantive purpose and is unfair to deny subehapter S benefits to an actively conducted business. Support for this position is said to be found in certain congressional comments on § 1372(e)(5) which summarize its effect as limiting “the availability of [sub-chapter S] treatment to small businesses actively engaged in trades or businesses.” We are not persuaded, however, that such generalizations from the legislative history can override the plain meaning of the specific language of the statute.

Moreover, we find ample procedural grounds supporting the result we here reach. The tax laws must be administered with some precision and predictability. The statute and regulation as here interpreted meet this test. The taxpayer’s proposed interpretation, on the other hand, leaves room for considerable ambiguity, particularly as to standards for determining whether a securities (or other) dealer is sufficiently “active” in the pursuit of its business to warrant subchapter S treatment. At minimum, the development of standards in this area is in the first instance for the Commissioner. We find no unfairness to the taxpayers in treating them in accordance with Treas.Reg. § 1.1372-4(b) (5) (x) (1959) which, in substances, specifically alerted the Company that its subchapter S status would be terminated in the circumstances here presented.

The judgment is affirmed.

      . Zychinski v. Commissioner, 60 T.C. 950 (1973).

      . Subchapter S, Int.Rev.Code of 1954, §§ 1371-1379, added to the Code in 1958, permits certain corporations to elect to be taxed as a partnership or proprietorship: the net income (or loss) of the business is “passed through” to the shareholders without a corporate tax.

      . The principal activity of the Company was the trading of securities for its own account. As a result of hundreds of transactions the Company realized a “trading profit” of $155,000 in 1960, an amount which far exceeded 20 percent of its gross receipts.

      . E. g., Western Union Tel. Co. v. Lenroot, 323 U.S. 490, 502, 65 S.Ct. 335, 89 L.Ed. 414 (1944); Halpin v. Collis Co., 243 F.2d 698, 701 (8th Cir. 1957).

      . Treas.Reg. § 1.1372-4(b) (5) (x) (1959) provides in part:
      [For purposes of section 1372(e)(5)] [gjross receipts from the sale or exchange of stocks and securities include gains received from such sales or exchanges by a corporation even though such corporation is a regular dealer in stocks and securities.

      . Commissioner v. South Texas Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831 (1948).

      . Accord, Marshall v. Commissioner, 60 T.C. 242 (1973).

      . Seago, Passive Income Limitations Under Subchapter S, 52 Taxes 112 (1974); see House v. Commissioner, 453 F.2d 982 (5th Cir. 1972); Valley Loan Ass’n v. United States, 258 F.Supp. 673 (D.Colo.1966).

      . S.Rep.No.1007, 89th Cong., 2nd Sess. 8, U.S.Code Cong. & Admin.News p. 2148 (1966); H.Rep.No.1238, 89th Cong., 2nd Sess. 8 (1966). The complete context of the quotation is as follows:
      When the “passthrough” type of tax treatment was provided for corporations, Congress decided to limit the availability of this treatment to small businesses actively engaged in trades or businesses. Therefore, it denied this treatment to corporations with large amounts of passive income. Accordingly, present law (sec. 1372(e)(5)) provides that a “pass-through” election is to terminate automatically where more than 20 per cent of a corporation’s gross receipt are derived from royalties, rents, dividends, interest, annuities, and sales or exchanges of stock or securities.
      This language does not illuminate the ultimate congressional purpose which, we find, is somewhat obscure. The most recent committee pronouncements on the subject speculate that the provision was aimed at rather limited potential abuse: the incorporation of “one’s investment activities merely to obtain tax deferral benefits accorded to pension, profit sharing, and similar plans.” In view of recent changes in pension taxation for subchapter S corporations, the reports suggest, this need for the provision has largely disappeared. Studies to eliminate it entirely are underway. S.Rep.No.91-1535, 91st Cong., 2nd Sess. 2, U.S.Code Cong. & Admin.News p. 6099 (1970); H.Rep.No.91-1735, 91st Cong., 2nd Sess. 2 (1970).

      . We have some doubt, even by a colloquial definition, whether income derived from the fluctuation of a market price may be characterized as “active.”

      . E. g., Treas.Reg. § 1.1372-4(b) (5) (vi) (1959) dealing with the meaning of “gross receipts derived from * * * rents” under § 1372(e)(5)(C).


author: GIBSON, Chief Judge.

text:
    Charles N. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1122.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Nov. 18, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1404.
    See also, D.C., 350 F.Supp. 807.

      Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    Donald R. Cooley, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Chief Judge.

The defendant, Charles Johnson, was convicted by a jury of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He received a seven year prison sentence to be followed by a mandatory additional three years special parole pursuant to § 841(b)(1).

While pursuing his appellate remedies the defendant also sought 28 U.S.C. § 2255 relief, alleging that his trial counsel failed to provide him effective assistance of counsel prior to and during the trial. After an evidentiary hearing, the District Court denied relief.

This appeal is from the two District Court orders, the judgment of conviction and sentence in October, 1972, and the denial of post-trial relief in June, 1973. Johnson asserts three primary assignments of error: (1) the improper giving of a joint possession instruction which assertedly negated Johnson’s defense of entrapment, (2) search and seizure and evidentiary issues, and (3) the erroneous conclusion by the District Court that Johnson was adequately represented by counsel. We affirm.

A brief review of the facts is in order. Twice on May 11, 1972, Government agents in Kansas City, Missouri, gave marked currency to Herbert Jones, a Government informant, for Jones to purchase narcotics from the defendant Johnson. After passing out of the range of surveillance by Government agents, Jones and Johnson consummated two transactions; Jones, in turn, surrendered the drugs to the Government agents. The next day, May 12, 1972, a special agent for the Federal Bureau of Narcotics and Dangerous Drugs (BNDD), upon information supplied by Jones, submitted an affidavit to the United States Magistrate and obtained a search warrant. Five officers executed the warrant at the apartment of defendant Johnson’s sister where Johnson was living in Kansas City, Missouri. When they entered, the officers found Johnson sitting on one end of a couch close beside a TV tray on which lay a quantity of heroin. Informant Jones was seated on the far end of the couch. The officers also found a syringe lying on the floor and, after a subsequent search, the marked currency in the defendant’s jacket. Both men were arrested and charged with possession with intent to distribute, but the case against Jones was dismissed by the Magistrate because the Government failed to show that Jones had sufficient control over the narcotics to constitute possession.

Defendant Johnson denied that he had met Jones on May 11 and claimed that Jones had sole possession of the bag of heroin and the syringe on May 12. At trial Jones testified that he twice bought heroin from Johnson in the same apartment on May 11, but that he gave Johnson no money the next day and, in fact, was surprised when the agents entered the apartment. Johnson testified at trial, claiming that Jones owned all the heroin and had brought it with him to the apartment on May 12. He explained that as an act of sympathy he offered Jones the apartment as a place to make use of the drug because Jones had complained he was ill.

I. Jury Instruction on Joint Possession and Entrapment.

Johnson argues that the District Court should not have instructed the jury that it could find the defendant guilty if he possessed narcotics jointly with another person. He reasons that, in view of the evidence, joint possession could only have been with Jones, whom, the jury was also instructed, was a Government informant. Because Jones was an informant it is argued that the Government failed to prove defendant Johnson’s predisposition to commit the offense and to disprove that the crime was the creative effort of Government agents. Thus, the joint possession instruction “effectively negated” his entrapment defense.

First, we do not subscribe to Johnson’s implicit premise that a finding of joint possession with a Government informant established prima facie entrapment. Nor do we agree that this case falls within the so-called “outrageous conduct” interpretation of the entrapment defense referred to by the Supreme Court as a bar to prosecution under the due process clause in United States v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). While Johnson may have made a sufficient showing in support of his entrapment argument to justify the court’s submitting the issue to the jury, the evidence did not warrant a determination that entrapment existed as a matter of law. United States v. Wilson, 501 F.2d 1080 (8th Cir. 1974); United States v. Pollard, 483 F.2d 929, 932 (8th Cir. 1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974); United States v. Emory, 468 F.2d 1017, 1018-1019 (8th Cir. 1972).

Second, although there is generally no need for the court to give an instruction on possession in a case involving a possession issue, United States v. Robinson, 448 F.2d 715, 716 (8th Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800 (1972), the joint possession instruction was properly given in the instant case because the evidence raised a question as to who possessed the narcotics. Whether the instruction was properly given depends, of course, upon the facts of each individual case. The Government requested the instruction on constructive possession because the heroin was not found directly on the person of the defendant, but on a nearby TV tray. The instruction on joint possession was requested because the events took place in an apartment which Johnson shared with his sister as well as because Jones was pres-exit and had access to the drugs. Considering the jury charge as a whole, as we must, we find no error in the giving of the joint and constructive possession instructions in the circumstances of this case and no contradiction with the asserted entrapment defense that might confuse or mislead the j ury.

II. Search and Seizure; Other Crimes Evidence.

Two points raised by the defendant do not require extensive discussion. First, he seeks to overturn the District Court’s refusal to suppress evidence seized on May 12, 1972, because the affidavit requesting the search warrant did not establish probable cause and because the warrant was improperly executed by the arresting officers. Johnson’s main contention is that the affiant who requested the search warrant improperly relied upon uncorroborated hearsay statements by the informant Jones to support his showing of probable cause before the issuing magistrate. The affidavit contained circumstantial explanation of how the informant obtained his information and it gave adequate reasons why the affiant believed Jones to be reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The informant’s knowledge was gathered firsthand and the affiant certified that the Government had successfully used Jones’ reliable information in the very recent past. Therefore, there was sufficient corroboration to justify issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Probable cause is apparent. Moreover, the trial court’s refusal to suppress on the grounds of assertedly defective execution of the warrant was supported by substantial evidence and will not be disturbed. Mullins v. United States, 487 F.2d 581, 589 (8th Cir. 1973); Gullett v. United States, 387 F.2d 307, 309 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968).

Second, relying again on his implicit premise that evidence of possession jointly with a Government informant establishes prima facie entrapment, Johnson argues that the court erred in admitting into evidence testimony concerning Johnson’s prior criminal acts, namely sales of heroin on May 11, 1972. Specifically he asserts that although during the trial the District Court concluded that the prejudicial impact of the evidence of Johnson’s prior dealings in narcotics outweighed its value to prove his intent to possess heroin on the date charged, as soon as the predisposition issue entered the case with Johnson’s entrapment defense, the court admitted the same evidence of prior criminal acts which it otherwise would have excluded. If, however, the District Court, as Johnson claims, eliminated entrapment as a defense in the case, the scope of relevancy of a prior offense would have narrowed, and the evidence arguably should have been excluded because predisposition could no longer have been an issue.

The argument fails, however, as the court did not eliminate the entrapment defense. Evidence of prior distribution of heroin is admissible in a prosecution for possession under § 841 (a)(1) to prove the defendant’s knowledge and intent to possess on the date charged. United States v. Richardson, 477 F.2d 1280, 1282 (8th Cir.), cert. denied, 414 U.S. 843, 94 S.Ct. 104, 38 L.Ed.2d 82 (1973); see Proposed Fed.R.Ev. 404(b) (1973). The court instructed the jury to use the evidence only for the limited purposes of judging Johnson’s intent to possess on May 12 and to decide whether or not he had been entrapped.

Rulings on the scope of relevancy and admissibility of other crimes in evidence are properly within the discretion of the trial court. Amos v. United States, 496 F.2d 1269, 1274 (8th Cir. 1974). See O’Reilly v. United States, 486 F.2d 208, 212 (8th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 332 (1973). We find no error in the court’s admitting evidence of Johnson’s sales of heroin which took place one day before his arrest for the indicted offense of possession.

III. Ineffective Assistance of Counsel.

In his § 2255 proceeding Johnson claims ineffective assistance of counsel. The District Court’s denial of that claim is supported by the record in the plenary hearing on that issue. After reviewing the record, we conclude that the principles of law applied by the District Court in its June 11 Memorandum and Order were correct and have not been altered by this court’s recent explications of the standards in McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) and Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974).

Johnson’s complaints center on counsel’s failure to spend more time with Johnson both before and during trial. He claims counsel’s unusually heavy caseload resulted in a failure to fully investigate and prepare for trial and to spend sufficient time and effort during trial to convince Johnson to refrain from testifying. Attorney Duncan, whose performance Johnson is attacking, did not enter the case until approximately two weeks before trial. Duncan, however, had already begun his preliminary investigation by discussing the case with the defendant, with a local witness, and with the attorney he was replacing. Because of the change in representation by the lawyers in the case, the District Court inquired and received assurances just prior-to trial that counsel for Johnson was fully prepared. After the hearing in 1973, the court found that Duncan had fully discussed the case with his client, both at the county jail and prior to trial, and that he had reviewed the case with prior counsel, thoroughly reviewed the Government's file, contacted witnesses suggested by Johnson, and used them where beneficial. The court concluded that Duncan “more than adequately” prepared for trial and very capably conducted the defense during trial.

The defendant bears a heavy burden of proving unfairness resulting from alleged ineffective assistance of counsel. The standard to be applied in assessing a claim of ineffective or inadequate representation is based on the particulars of each case and is not easily reduced to any formula or “to precise words capable of rigid application.” Garton v. Swenson, supra 497 F.2d at 1140. Johnson’s claim that his lawyer failed to carry out his ethical and legal responsibilities merely because the lawyer failed to convince his client to refrain from testifying borders on the ridiculous and, even when combined with Johnson’s other assertions, falls far short of meeting the ineffective assistance of counsel standard, however it might be phrased. Trial tactics are often hard decisions made in the tempo of the adversary proceeding and, once made, are not subject to rejection in the event one misfires. In its hearing the District Court made a searching evaluation of possible constitutional violations in counsel’s performance and found none. In so doing, the court properly applied the standard set out in Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971), and found that counsel fully performed his duty to serve his client effectively.

While our prior cases such as McQueen v. Swenson, supra,; Garton v. Swenson, supra, and Robinson v. United States, supra, speak of denial of effective assistance of counsel or ineffective representation, and similar phrases, it appears to us that characterizing counsel’s conduct on the basis of effectiveness may suggest a standard not supported by constitutional principles. The term “effective,” in its most general application, describes something which ultimately achieves a desired result. With reference to professional representation in criminal cases, that might be interpreted to mean achieving only outright acquittal of the defendant on the charges without regard to the weight and strength of the evidence adduced. A more appropriate nomenclature for the standard would be to test for the degree of competence prevailing among those licensed to practice before the bar. The standard would refer more precisely to the professional competence of one who has completed a long and arduous course of study for a professional license, and who has acquired some experience in applying legal principles and conducting court trials.

The professional standard could be said to include the responsibility to insure that the client is tried according to the applicable rules of evidence and practice and to urge such arguments on a client’s behalf as are indicated by the evidence, or lack of evidence, adduced. It is not, however, constitutionally limited to an “effective” type of representation that would achieve acquittal of a defendant on any charge regardless of the facts. The constitutional provision includes neither “effective” nor “adequate” nor other adjectival terms in its guarantee of assistance of counsel. It merely states in plain language that “[i]n all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defence.” U.S.Const. Amend. VI.

Johnson is apparently contending for a “heads, I win; tails, you lose” doctrine on the issue of adequate representation in criminal cases. It is easy in any proceeding, and particularly in a collateral proceeding, to attack what was done under the stress and strain of an adversary trial. In this case, if Johnson had not testified, his claim most certainly would now be “I wanted to testify; I wanted to tell the truth, but my lawyer wouldn’t let me,” or at least “my lawyer didn’t convince me that I should have testified.” His contention ultimately leads us down the corridor of dual criminal trials. In the event a first trial does not result in an acquittal, a second trial is held where defendant can employ different tactics, thus profiting from tactical mistakes of the first trial, all without regard for the principal issue of the accused’s guilt. Certainly such an incongruous result is not commanded by the Sixth Amendment guarantee of assistance of counsel. The trial court’s order denying § 2255 relief is affirmed.

Judgment of conviction is affirmed and the order denying § 2255 relief is affirmed.

      . The Honorable Elmo B. Hunter, United States District Judge, Western District of Missouri, entered judgment and sentence October 26, 1972.

      . The hearing was held March 7, 1973, and the District Court filed an unpublished Memorandum and Order denying relief June 11, 1973.

      . On this consolidated appeal the appellant is represented by the Federal Public Defender for the Western District of Missouri.

      . At the request of the Goveimment and over the defendant’s objeetion, the court instructed the jury in part as follows:
      The law recognizes two kinds of possession : actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
      A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
      The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
      You may find that the element of possession as that term is used in these instructions is present if you find beyond reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others. * * *
      See 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.10 (2d ed. 1970). At the defendant’s request, the court also instructed the jury that Herbert Jones was an informant for the Government and that his testimony should be considered with greater care than the testimony of an ordinary witness. See 1 E. Devitt & C. Blackmar, supra § 12.02. Full instructions on the defense of entrapment were also given at defendant’s request.

      . Indeed, the Government argues that, in view of the defendant’s apparent denial that he committed any offense, Johnson should have been denied the defense of entrapment altogether and that, at worst, he was greatly assisted by the trial court’s extensive jury instructions on entrapment. See Kibby v. United States, 372 F.2d 598, 601 (8th Cir.), cert. denied, 387 U.S. 931, 87 S.Ct. 2055, 18 L.Ed.2d 993 (1967).
      Moreover, in spite of the District Court’s instruction that Jones was an informant for the Government, the evidence supports the conclusion that he was not so serving on May 12. On May 11 he exchanged marked currency and provided information, but there was testimony that on May 12 he was “on his own” and “not on the job.” When viewed most favorably to the Government, the evidence does not conclusively establish an agency relationship between Jones and the United States on May 12 so as to make the Government responsible for his actions. See United States v. Wilson, supra, 501 F.2d at 1081. However, whatever error there was in the court’s instruction, if any, was in the defendant’s favor. No prejudice could have resulted.

      . Following return of the indictment in late May, 1972, Mr. Sokol, Assistant Federal Public Defender, was appointed to represent Johnson. Mr. Sokol was replaced by Mr. Shute because Johnson was dissatisfied. Finally, on October 2, 1972, Johnson privately retained Mr. Duncan and Mr. Shute withdrew.

      . Johnson was admittedly advised by counsel not to testify. The complaint here is that he was not convinced to stay off the stand. Interestingly, however, in response to the court’s statement at the end of the trial that counsel liad done a fine job, the defendant replied, “I am in 100% agreement with that, your Honor.” How, on appeal, Johnson relies heavily on counsel's candid response at the June, 1973, hearing when, asked if he would have handled the case differently with the benefit of hindsight, he responded that he would have “worked a little more on the defendant not to testify.”

      . See the cases collected in Garton v. Swenson, supra, 497 F.2d at 1139-1140.

      . In McQueen v. Swenson, supra, 498 F.2d at 214, we made it clear that we still adhere to the consistent standard applied in Cardarella v. United States, 375 F.2d 222, 230 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967), and Brown v. Swenson, 487 F.2d 1236, 1240 (8th Cir.), cert. denied, 416 U.S. 944, 94 S.Ct. 1952, 40 L.Ed.2d 296 (1974), in spite of the fact that we have, at various times, expressed “the same thought in other words.”

      . The term “effect” is equated with result. Black’s Law Dictionary 605 (rev. 4th ed. 1968). The term “effectively” generally “emphasizes the actual production of an effect * * Webster’s New International Dictionary 819 (2d ed. 1941). It describes things which are “producing or capable of producing a result.” Webster’s New Collegiate Dictionary 362 (1973).

      . The Supreme Court’s use of the term “effective” in its statement that “the right to counsel is the right to the effective assistance of counsel,” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), is carefully circumscribed for specific rather than generalized description. The Court’s phrase should not be interpreted to require such representation as will result in acquittal, but only such as is “within the range of competence demanded of attorneys in criminal cases.” Id. at 771, 90 S.Ct. at 1449.