author: WILLIAM E. MILLER, Circuit Judge.

text:
    FARMERS-PEOPLES BANK, Plaintiff-Appellant, Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee, Cross-Appellant.
    Nos. 72-1856, 72-1857.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1973.
    Decided April 30, 1973.

      John F. Kizer, Milan, Tenn., for appellant, cross-appellee.
    Charles R. Burnett, Tax Div., Dept. of Justice, Washington, D. C., for appellee, cross-appellant; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., of counsel.
    Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This appeal involves the claim of the plaintiff, Farmers-Peoples Bank of Milan, Tennessee (the bank) against the defendant, United States (the government) pursuant to 26 U.S.C. § 7426(a)(1) for an alleged wrongful levy by the government on the assets of the Clemmer Building Supply Company (C. B.S.), now bankrupt. The government counterclaimed under 26 U.S.C. § 3505(b), which imposes personal liability on lenders under certain conditions. The district court for the Western District of Tennessee partially granted the relief sought by each party. The plaintiff has appealed and the government has cross-appealed.

C.B.S. ran a lumber shed and was a home contractor in Milan, Tennessee. On October 7, 1968, its Board of Directors authorized its president, Hubert Clemmer, Jr., to apply for a loan up to $50,000 from the bank. The district court found that on October 10, 1968, the bank loaned C.B.S. $35,000. In return Clemmer signed a promissory note and a security agreement, granting the bank a security interest in C.B.S.’s assets (notably accounts receivable and inventory). The security agreement was lost. At the time of the agreement C.B.S. carried two accounts with the bank, one a general checking account and the other a payroll account. It was the bank’s practice to allow C.B.S. to overdraw these accounts regularly. The bank’s records reflect that $32,000 of the loan made in 1968 was transferred to the payroll account to cover the existing overdrafts in that account. On October 23, 1968, the bank filed a financing statement with the Secretary of State of Tennessee, reflecting the indebtedness of C.B.S. and the bank’s security interest. By December 19, 1969, payments by C.B.S. had reduced the outstanding balance on the note to $19,832.76. At this time Clemmer signed for C.B.S. a “renewal” promissory note.

The bank was represented in these transactions by John McNail, the bank’s executive vice president. McNail personally approved the payment of checks drawn by C.B.S. that actually overdrew C.B.S.’s accounts. In 1968, C.B.S.’s financial condition worsened. Yet it regularly overdrew its checking accounts, often for large amounts. In 1970, it was forced into involuntary bankruptcy. At the time of the bankruptcy, the bank was carrying over $47,000 in overdrafts.

During the fourth quarter of 1968, the third and fourth quarters of 1969, and the first quarter of 1970, C.B.S. incurred federal tax liabilities for withholding and unemployment taxes. On three occasions C.B.S. attempted to pay these taxes but the cheeks were dishonored by the bank because of insufficient funds. Finally, in early 1970, Clemmer paid the Internal Revenue Service a part of C.B.S.’s tax liability with a cashier’s check in the amount of $8,051.30. On February 24, 1970, .and April 23, 1970, the government filed two tax liens for $14,111.73, and $7,554.82, respectively, totaling $21,666.65. On March 4, 1970, the government foreclosed on these liens, locking the doors of C.B.S. The government proceeded to collect some of C.B.S.’s accounts receivable and attempted to sell its assets at public sale. The sale drew no bidders and the government released the assets to Clemmer. The bank then asserted its security interest. An accord was reached between the bank and the government, providing that the assets would be sold free of their respective interests, the proceeds of the sale to be placed in an escrow fund pending judicial determination of priorities. The later sale netted $21,601.18. Subsequently a rent account in the amount of $1,137.50 was seized by the bank. On August 14, 1970, C.B.S. was declared bankrupt. The bankruptcy court released the property of the bankrupt to the bank subject only to the rights of the federal government, if any, under its tax liens.

The district court found that the bank had a security interest arising from the lost 1968 agreement, limited to $19,832.-76, with respect to:

All inventory of every nature and kind now on hand and all' hereafter acquired inventory, along with all accounts receivable, now held or hereafter acquired accounts receivable, along with office supplies, machines, and tools and equipment usual and incidental to the operation of a lumber shed.

It was then held that the bank’s interest in this amount was superior to the government’s tax liens, except as to the 26 U.S.C. § 3505(b) liability. From the amount of $19,832.76 the court subtracted $1,300.00 (rent account) and $5,650.-50 (proceeds from the sale of equipment). These monies were thought to have been collected independently of the escrow fund. Consequently, the bank’s security interest in the proceeds from the sale of C.B.S.’s assets held in the escrow fund was reduced to $12,882.26, or, with interest, to $14,341.23. The court then held that the bank was liable under 26 U.S.C. § 3505(b) as to the fourth quarter of 1969 because of loans made to C. B.S. during that period, a liability fixed at $5,763.81. This amount was also subtracted from the bank’s share of the escrow account, finally leaving the bank’s portion at $8,577.42. The government was awarded the remaining amount, or $13,023.76 ($5,763.81 under 26 U.S.C. § 3505(b), and $7,259.95 under its tax liens).

To complicate matters further the court amended its findings. In its amended order the district court held that the $5,700.00 (listed above as $5,650.50) was in fact included in the escrow fund. Consequently this amount was added to the bank’s share of the fund and subtracted from the government’s portion, thus giving the bank $14,277.42 and the government $7,323.76 from the escrow fund. Also each party was allowed to retain the proceeds from the sale of assets that it had sold independently of the escrow fund.

Upon consideration we are satisfied that all of the findings and conclusions of the district court are correct except its denial of the bank’s demand for a jury trial on the 26 U.S.C. § 3505(b) issues as to both the third and fourth quarters of 1969, and with the possible exception of the common law lien question noted below.

The Seventh Amendment to the federal Constitution provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

This Amendment is in essence embodied in Rule 38(a) of the Federal Rules of Civil Procedure:

(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.

The Seventh Amendment preserves to litigants the right to jury trial in suits at common law—

not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered ....

Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970), quoting Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 437, 7 L.Ed. 732 (1830). The difficulty of course is to distinguish the legal from the equitable claims.

Since the merger of law and equity, the doctrine that a court in equity, once it has jurisdiction, will adjudicate both legal and equitable claims sitting without a jury, has been drastically eroded. This is due to the liberal joinder provisions under Rule 18 of the Federal Rules of Civil Procedure. Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 509-510, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

As the Supreme Court has stated:

where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims. The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.

Ross v. Bernhard, 396 U.S. 531, 537-538, 90 S.Ct. 733, 738 (1970). Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theaters v. Westover, 359 U.S. 500, 505, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

In Ross the Court pointed to three factors to be considered in making the distinction between legal and equitable claims.

As our cases indicate, the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply.

Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738. See Simler v. Conner, 372 U.S. 221, 223, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963).

In Damsky v. Zavatt, 289 F.2d 46 (2nd Cir. 1961), the Court held in a well-reasoned opinion that an action in personam to recover taxes was one recognized at common law as an action on a debt, a legal cause of action for which a jury trial was appropriate. On the basis of this authority the first prerequisite for a jury trial is met.

There are three essential elements of an action pursuant to § 3505(b) upon the facts of this case. First, the bank must have loaned money to C.B.S. with the knowledge that the money was to be specifically used to meet C.B.S.’s payroll during the third and fourth quarters of 1969; second, C. B.S. must have failed to pay its withholding and unemployment taxes during these quarters and the taxes must still be outstanding; and third, the bank must have had actual notice or knowledge that C.B.S. neither intended nor was able to pay its payroll taxes. In our opinion no characterization of this cause of action could be made other than an action on a debt to impose personal liability.

The recovery of the debt against the bank under § 3505(b) could exist regardless of the existence of the escrow fund or of the tax liens. Hence, the second requirement of Ross, i. e. the remedy, is satisfied.

The third factor listed by Ross, the practical abilities and limitations of juries, should present no difficulties here. The central issue for the jury would be the bank’s actual notice or knowledge of the employer’s intent not to pay or its inability to pay its payroll taxes. This question is peculiarly appropriate for jury resolution. Moreover, the § 3505(b) issues are easily severable from the other issues raised in the action. These issues as to both the third and fourth quarters of 1969 should be submitted for jury determination.

The bank asserts that it is entitled to set-off the amount recovered from the rent account against C.B.S.’s outstanding liability. Apparently the bank is arguing that this right is a common law one and therefore takes precedence over a federal tax lien. See Tenn.Code Ann. § 47-9-310 (1964). The district court did not specifically pass on this issue. By inference, however, the court held that the bank had no such right, since the court subtracted the amount in the rent account from the bank’s secured interest. Wagner v. Citizens Bank & Trust Co., 122 Tenn. 164, 122 S.W. 245 (1909), easts some doubt on this result. In that case the court, albeit by dictum, apparently recognized such a common law right in Tennessee. See also Comment 1, Tenn.Code Ann. § 47-4-208 (1964). We express no opinion on this question since we feel that it should be specifically dealt with by the district court on remand. We observe, however, that the finding that the original security agreement did not contain a future advances clause is not dispositive of this issue because the bank still has outstanding over $47,000 in overdrafts.

Other questions have been raised by both parties on appeal but have been found to be without merit.

Modified and remanded for further proceedings not inconsistent with this opinon.

      . The district court in its amended order found that this escrow fund contained some $5,650.50 derived from the sale of C.B.S.’s equipment. Originally this amount was not included in the escrow fund, but was assumed to have been independently collected by the bank. According to the court’s amended order this assumption was in error, and this amount was found to have been included in the escrow fund. The government did collect two items independently of the escrow fund, $454.28 (cash from C.B.S.’s register at the time of seizure) and $3,350.00 (proceeds realized from the sale of C.B.S.’s vehicles). The bank does not claim an interest in these two items.

      . This account is later referred to by the district court as containing $1,300.00. The difference is apparently represented by interest.

      . Subsequent to the filing of the tax liens, the bank sought to convince the government that the original security agreement had actually been executed and that it contained a future advances clause, seeuring the bank for advances up to $50,000.-00. Pursuant to this purpose, Clemmer came to McNail’s office and signed a “duplicate agreement.” The form was blank when Clemmer signed it, except that it indicated an indebtedness of $35,000 and was marked “duplicate.” McNail then filled in the form, including a future advances clause for amounts up to $50,000. Also, McNail filed an affidavit with the court that the original agreement did in fact contain a future advances clause. Clemmer testified that he could not remember whether the original contained such a provision. The court found that the bank did not carry its burden of proof on this issue, and that the original security agreement did not contain a future advances provision. We hold that this finding was not clearly erroneous.

      . See note 2, supra.

      . 26 U.S.C. § 3505(b) provides:
      (5) Personal liability where funds are supplied. — If a lender, surety, or other person supplies funds to or for the account of an employer for the specific purpose of paying wages of the employees of such employer, with actual notice or knowledge (within the meaning of section 6323(i)(l)) that such employer does not intend to or will not be able to make timely payment or deposit of the amounts of tax required by this subtitle to be deducted and withheld by such employer from such wages, such lender, surety, or other person shall be liable in his own person and estate to the United States in a sum equal to the taxes (together with interest) which are not paid over to the United States by such employer with respect to such wages. However, the liability of sucli lender, surety, or other person shall be limited to an amount equal to 25 percent of the amount so supplied to of for the account of such employer for such purpose.

      . 26 U.S.C. § 6323, as rewritten by § 101 (a), Federal Tax Lien Act of 1966, defining “notice” or “knowledge” for purposes of § 3505(b), provides in part:
      (i) Special Rules.—
      (1) Actual notice or knowledge.— an organization shall be deemed for purposes of a particular transaction to have actual notice or knowledge of any fact from the time such fact is brought to the attention of the individual conducting such transaction, and in any event from the time such fact would have been brought to such individual’s attention if the organization had exercised due diligence.


source: Caselaw Access Project

author: GEWIN, Circuit Judge: AINSWORTH, Circuit Judge By the Court:

license: Public Domain

text:
    UNITED STATES of America and Gerald T. Culver, Plaintiffs-Appellees, v. Robert I. WHITE, Defendant-Appellant.
    No. 71-2381.
    United States Court of Appeals, Fifth Circuit.
    April 17, 1973.
    Rehearing En Banc Granted July 10, 1973.

      George A. Hrdlicka, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Houston, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwaeks, Atty., Carleton D. Powell, Dept. of Justice, Tax Div., Washington, D. C., for plaintiffs-appellees.
    Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
   GEWIN, Circuit Judge:

In this case we must decide whether the constitutional privilege against compulsory self-incrimination may be invoked in behalf of a taxpayer by his attorney to prevent the production of income tax workpapers in his attorney’s possession. Pursuant to 26 U.S.C. §§ 7402(b) and 7604(a), the government petitioned the United States District Court for the Southern District of Texas for enforcement of an internal revenue summons issued on December 7, 1970 in connection with an investigation of the tax liability of Louis D. and Carolyn R. Roberts for the years 1966 through 1969 inclusive. The summons was addressed to Appellant White, taxpayers’ attorney, and directed him to produce workpapers and other documents which had been prepared by taxpayers’ accountant and which were then in White’s possession. In the enforcement proceeding White asserted his clients’ fifth amendment privilege as a bar to the compelled production of the documents in his possession. The district court, 326 F.Supp. 459, D.C., held that taxpayers had no fifth amendment rights with respect to the papers in their attorney’s possession and ordered White to obey the summons. From this order White appeals. We affirm.

From 1962 through 1968 taxpayers’ income tax returns were prepared by Stanley H. Voelkel, a certified public accountant. Voelkel was not taxpayers’ personal employee but rather was an independent contractor with his own office and numerous other clients. Using the information supplied to him by taxpayers, Voelkel would compile workpapers and other documents which summarized the data pertinent to the preparation of an income tax return; the information contained in the workpapers would then be used to complete each year’s return. After filing a return Voelkel retained his workpapers in his files.

In 1967 taxpayers found it necessary to draft and submit to the Internal Revenue Service an offer in compromise of their tax liability for the years 1962 through 1965. Voelkel assisted them in its preparation, compiling more workpapers in the process. Upon receipt of taxpayers’ offer in compromise, the Internal Revenue Service assigned a revenue officer to examine it and to make a recommendation as to its acceptability. The revenue officer apparently found indications that taxpayers did not adequately disclose their assets in making the settlement offer. His discoveries were eventually reported to the Intelligence Division of the Internal Revenue Service which in 1969 assigned a special agent to join him in a thorough investigation of the offer in compromise. Undoubtedly one purpose of this investigation was to determine whether taxpayers had committed criminal violations in making the settlement offer.

When they learned that a special investigation was underway, taxpayers turned to White for counsel; he was officially appointed their attorney and representative-in-fact on a government power of attorney form filed with the Internal Revenue Service. White immediately contacted Voelkel and by November of 1969 had obtained from him not only the workpapers he used in preparing the offer in compromise but also all workpapers used in preparing taxpayers’ income tax returns for the years 1962 through 1968. It was agreed that White could keep Voelkel’s papers indefinitely but that he would return them upon completion of his representation of taxpayers.

In 1970 taxpayers withdrew their offer in compromise. Shortly thereafter the Internal Revenue Service expanded the scope of its investigation into taxpayers’ affairs to include a review of their tax returns for the years 1966 through 1969 in order to determine among other things their correct tax liability for those years. In connection with this expanded investigation the summons in question was issued and-served on White. Although the Internal Revenue Service initially sought all of the workpapers in White’s possession, it subsequently modified its demands to encompass only those workpapers used by Voelkel in preparing taxpayers’ income tax returns for the years 1966 through 1968. When White refused to produce these workpapers, the government petitioned the district court for enforcement of the summons. At the time enforcement was requested, there had been no recommendation to prosecute either with respect to the tax returns under investigation or with respect to the offer in compromise.

Resolution of this case begins with White’s contention that the summons served upon him pursuant to 26 U.S.C. § 7602 is unenforceable because the Service’s sole objective in issuing it was to obtain evidence for use in a criminal prosecution of his clients. In Donaldson v. United States the Supreme Court refused to hold that a § 7602. internal revenue summons is invalid if issued in aid of a tax investigation which might result in a recommendation that a criminal prosecution be instituted against the taxpayer. The Court rejected a contention similar to White’s with these observations :

“Congress clearly has authorized the use of the summons in investigating what may prove to be criminal conduct .... There is no statutory suggestion for any meaningful line of distinction, for civil as compared with criminal purposes, at the point of a special agent’s appearance. . To draw a line where a special agent appears would require the Service, in a situation of suspected but undetermined fraud, to forego either the use of the summons or the potentiality of an ultimate recommendation for prosecution. We refuse to draw that line and thus to stultify enforcement of federal law. . .
We hold that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution.”

In view of Donaldson it can hardly be disputed that § 7602 permits an internal revenue summons to be issued and enforced in aid of a tax investigation in which civil and criminal purposes are intertwined; the Court cautioned only that the summons must be issued in good faith and prior to a recommendation for criminal prosecution. The record in this case plainly reveals that the summons addressed to White was issued in connection with an investigation the purpose of which, at least in part, was to ascertain the correct income tax liability of taxpayers for the years 1966 through 1969. The trial court conducted an in camera examination of the Service’s motives which substantiated the evidence presented in open court. Although the investigation definitely carried with it the possibility of criminal consequences, no recommendation for criminal prosecution had been made either at the time the summons was issued or at the time enforcement was sought. In these circumstances the issuance of the summons was authorized by § 7602.

More substantial problems are raised by appellant’s contention that his clients’ constitutional privilege against compulsory self-incrimination would be violated if he were compelled to produce the workpapers in his possession. Since taxpayers were denied permission to intervene in the enforcement proceeding, they were unable personally to assert their fifth amendment privilege. Instead White as their attorney asserted it in their behalf. A threshold question, then, is whether attorneys have standing in internal revenue proceedings to assert the privilege in behalf of their clients. This question has been considered by several lower federal courts, and, as is so often the case, conflicting decisions have resulted.

On one hand there is the traditional view that the fifth amendment privilege is purely personal; it does not permit a witness to plead the fact that another party might be incriminated by his testimony even though he is that party’s agent or attorney. On the other hand some courts have taken the position that too heavy a burden in terms of time and money would be imposed on taxpayers if they were required to be present personally at internal revenue hearings and enforcement proceedings in order to exercise their constitutional rights. Under this view an attorney does have standing to invoke the privilege in his client’s behalf in response to an internal revenue summons that seeks the production of incriminating documents. Assuming, without deciding, that the latter view is correct and therefore that White has standing to assert his clients’ privilege, a second question necessarily arises — whether the fifth amendment shields his clients from the compelled production of workpapers owned and prepared by their accountant and held in their attorney’s possession. In order for White to be successful on appeal, this question must be answered in the affirmative; for even though he may have standing, it is of no use to him if his clients have no fifth amendment rights with respect to the papers in his possession.

Like the question of standing, this question has also elicited contradictory responses from the lower federal courts. Fortunately the Supreme Court has provided some guidance with its recent opinion in Couch v. United States. The issue presented in Couch was whether a taxpayer could successfully invoke her privilege against self-incrimination to prevent the production of incriminating documents in her accountant’s possession. The documents sought by the government were the taxpayer’s business records which over the years had been given to her accountant for the purpose of preparing her income tax returns. The taxpayer retained title to the records in herself. As an intervenor in the enforcement proceeding brought against her accountant, she asserted her privilege against self-incrimination as a bar to production of the records.

In rejecting the taxpayer’s contention that ownership rather than possession defines the boundaries of the protection afforded by the fifth amendment, the Court once again emphasized the intimate and personal nature of the privilege. The privilege does not prevent the government from discovering incriminating evidence but rather precludes it from extorting such evidence from the accused himself. Without the essential ingredient of personal compulsion against the accused, a fifth amendment claim necessarily founders. When the government seeks papers which might implicate a taxpayer, the Court concluded that the ingredient of personal compulsion, essential to a claim of privilege, is almost invariably missing unless the papers are actually in the taxpayer’s possession. The following remarks are particularly revealing:
“We do indeed believe that actual possession of documents bears the most significant relationship to Fifth Amendment protections against governmental compulsions upon the individual accused of crime. Yet situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact. But this is not the case before us.”

Since it was the taxpayer’s accountant rather than taxpayer herself who was actually in possession of the documents sought by the government, she could not legitimately claim that enforcement of the summons would compel her to incriminate herself.

The lesson to be drawn from Couch, then, is that unless the taxpayer is actually in possession of documents sought by the government — or clearly has constructive possession — he will be unable to seek the shelter of the fifth amendment because he will not be the object of any impermissible governmental compulsion. White’s clients, allegedly the object of impermissible governmental compulsion, do not own the work-papers sought by the government, nor have they ever been in possession of these documents. It is White their attorney who is forced to respond to the governmental summons. The essence of White’s complaint is that potentially incriminating information will be divulged to the government, not that it is being acquired by subjecting the taxpayers to the cruel dilemma of self-accusation, perjury, or contempt. The fifth amendment, however, protects not against the production of such information but only against its extraction from the accused himself.

Appellant’s best argument is that taxpayers are in constructive possession of the workpapers because White, the actual possessor, obtained them only in his capacity as taxpayers’ attorney and retained them only for the sake of convenience in representing them. In Couch, the Court acknowledged the possibility that in a case of constructive possession there might be sufficient governmental compulsion exerted upon the taxpayer to legitimatize a claim of privilege. As possible examples of such a case the Court cited Schwimmer v. United States and United States v. Guterma. In both of these cases a claim of privilege was successfully asserted to prevent the government from obtaining documents the parties had temporarily stored on the premises of corporations. The reference to these cases in Couch indicates that a claim of privilege might be valid on the constructive possession theory if the taxpayer has placed papers in the hands of another person or entity for custodial safekeeping, thereby, retaining the right to immediate possession though not having actual possession.

But this conception of constructive possession cannot be extended to fit the situation in which White’s clients find themselves. For it is undisputed that they have never for an instant been in possession of the papers sought by the government. White himself obtained these documents from their accountant. Although not of controlling importance, there is no evidence in the record that he did so upon their instructions or that they even knew that he had secured them. At the time the workpapers were demanded by the government, they had been in his possession for over a year. In these circumstances the necessary ingredient of personal compulsion against White’s clients is totally lacking, and in its absence the fifth amendment does not prohibit the government from obtaining information vital to the enforcement of its laws and the collection of its revenues. The district court correctly ordered enforcement of the summons directed to White insofar as it required him to produce all of the accountant’s papers in his possession that pertain to his clients’ income tax returns for the years 1966 through 1969. Its judgment is affirmed.

Affirmed.

AINSWORTH, Circuit Judge

(dissenting) :

With deference I dissent because of a strongly held belief that taxpayers’ constitutional rights against self-incrimination are being violated by the action taken by the majority in affirming the district court in this case.

On December 7, 1970, Special Agent Gerald T. Culver of the Intelligence Division served an Internal Revenue Service summons on Robert I. White, attorney at law, who represented taxpayers, Mr. and Mrs. Roberts, under a written power of attorney filed with the Service, demanding production of certain work papers pertaining to taxpayers’ federal income tax returns. These work papers were prepared by taxpayers’ accountant and delivered to Mr. White at his request on behalf of his clients. They remained in his possession for approximately a year when the summons was served.

Attorney White declined to produce the papers demanded by the summons and the present enforcement proceeding was begun on February 22, 1971 by the United States and Special Agent Culver for enforcement of the summons, pursuant to 26 U.S.C. §§ 7402(b) and 7604(a).

A hearing was held before the district court on March 15, 1971, at which time Special Agent Culver testified that he had not reached any conclusions relative to criminal prosecution of taxpayers for violation of federal revenue statutes because he had not completed his investigation. The district court resumed the hearing again on April 5, 1971, and Special Agent Culver further testified: “In my opinion, based on what I know at this point, I think there is a criminal violation involving the offer and compromise and the financial statement that accompanied that offer which was filed by [taxpayer] Mr. Roberts.” Mr. Culver then listed several federal criminal statutes apparently violated by taxpayers, namely, 18 U.S.C. § 1001, 26 U.S.C. §§ 7206(1) and 7206(5).

While this appeal has been pending, taxpayers’ counsel has furnished the court with information to the effect that the Chief of the Intelligence Division of the office of the District Director of the Internal Revenue had written taxpayer, Mr. Roberts, that a recommendation has been made to Regional Counsel to criminally prosecute him for attempted income tax evasion, for making and subscribing false and fraudulent income tax returns, for wilfully attempting to evade payment of income tax, for concealing property with intent to evade or defeat the collection of taxes, for filing a false financial statement, and for making false statements in an offer in compromise. The Government’s response is that this information is irrelevant because at the time the summons was issued no recommendation for prosecution had been made.

There is strong reason to believe that the Government was not acting in good faith when it served the instant summons. The case had initially been investigated for some time by an Internal Revenue agent and the Special Agent of the Intelligence Division was called in later. Even though a recommendation for prosecution had not been made at the time the summons issued, the Service had sufficient information available upon which to base a recommendation. The recommendation should not have been delayed to take advantage of a civil summons. I doubt, therefore, that the requisites of Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 545, 27 L.Ed.2d 580 (1971), have been complied with- since the evidence points most strongly to an absence of good faith on the part of the Government, as required by Donaldson, in issuing the summons.

Nevertheless, I do not rest my dissent on this ground, but on the more important ground that taxpayers’ constitutional rights under the Fifth Amendment against compulsory self-incrimination have been violated. The work papers involved here are documents that would be privileged under the Fifth Amendment if actually possessed by taxpayers when the summons was issued. See United States v. Cohen, 9 Cir., 1967, 388 F.2d 464. In Cohen a summons was issued to obtain work papers prepared by taxpayer’s accountant and then in taxpayer’s possession. The Ninth Circuit maintained taxpayer’s Fifth Amendment privilege against self-incrimination and declined to require taxpayer to produce the papers in response to the summons.

In the present ease the work papers prepared by taxpayers’ accountant from their books and records were not in taxpayers’ possession but in that of a third person, the attorney at law charged with responsibility of representing them in their federal income tax matters. Attorney White was thus in constructive possession of these work papers on behalf of his clients. During the enforcement proceeding, he claimed the constitutional privilege on behalf of his clients. Then taxpayer, Mr. Roberts, filed a motion for leave to intervene “to claim the benefit of certain constitutional provisions which inured to his benefit,” which was denied by the district judge. It is clear, therefore, that Mr. Roberts attempted also to assert his constitutional privilege. However, though the privilege is a personal one, there is no reason why it cannot be asserted in clients’ behalf by their attorney at law. See United States v. Judson, 9 Cir., 1963, 322 F.2d 460; In re House, N.D.Cal.1956, 144 F.Supp. 95. In Judson, an Internal Revenue summons was served on an attorney in possession of clients’ papers, demanding production of the documents. The Ninth Circuit maintained the Fifth Amendment privilege asserted by taxpayers’ attorney in their behalf. There is no difference in principle between Judson and the present case.

The majority attempts to make a distinction in principle based upon the fact that the work papers in the present case are not owned by taxpayers but belong to taxpayers’ accountant who prepared them from taxpayers’ books and records. However, actual ownership of the documents is not necessary to the assertion of the privilege. See Couch v. United States, 409 U.S. 322, 330 n. 12, 93 S.Ct. 611, 617 n. 12, 34 L.Ed.2d 548 (1973). The critical question is the right of a possessor rather than that of an owner. In the present case, though the papers are not in the possession of taxpayers, they are in the possession of taxpayers’ attorney, and constructively for their benefit.

The majority relies most heavily on the recent Supreme Court decision in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), where an Internal Revenue Service summons directed to an accountant was challenged by taxpayer based on the Fifth Amendment privilege against self-incrimination. The Court held that the constitutional privilege was not available for documents in possession of the accountant. The case is clearly distinguishable because the accountant-client relationship is essentially different from the attorney-client relationship. There is no expectation of privacy in the accountant-client relationship. On the other hand, the attorney-client relationship is a personal one, guaranteed by the Sixth Amendment right to counsel, the attorney-client privilege, and ethical restraints on the attorney. The attorney-client relationship does not depend on whether the attorney or the client possesses the documents. As Professor Wigmore concluded: “It follows, then, that when the client himself would be privileged from production of the document, either as a party at common law or as a third person claiming title or as exempt from self-incrimination, the attorney having possession of the document is not bound to produce.” Moreover, the Ninth Circuit recognized: “The attorney and his client are so identical with respect to the function of the evidence and to the proceedings which call for his production that any distinction is mere sophistry.” United States v. Judson, 9 Cir., 1963, 322 F.2d 460, 467.

In my view we are seriously weakening the attorney-client relationship and the Fifth Amendment privilege against self-incrimination by what the majority opinion decides in this case. I would accordingly deny the Government the right to production of documents in possession of taxpayers’ attorney.

I, therefore, respectfully dissent.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges.

By the Court:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . § 7402. Jurisdiction of district courts.
      (b) to enforce summons. — If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.
      § 7604. Enforcement of summons.
      (a) Jurisdiction of district court. — If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data.

      . The district court also denied the taxpayers’ request to intervene in the enforcement proceeding in order to protect their interests. Although this ruling may have been erroneous, compare Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1970) with Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), we do not consider it because taxpayers have not appealed.

      . 26 U.S.C. § 7122 (1964 ed.) permits the Internal Revenue Service to accept a settlement in compromise of the tax liability of any taxpayer. Its purpose is to facilitate the settlement of tax liabilities without litigation.

      . The summons was issued pursuant to 26 U.S.C. § 7602 (1964 ed.), which provides:
      Examination of Books and Witnesses.
      For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal' revenue tax, or collecting any such liability, the Secretary or his delegate is authorized—
      (1) To examine any books, papers, records or other data which may be relevant or material to such inquiry;
      (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform, the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
      (3) To take such testimony of the person concerned under oath, as may be relevant or material to such inquiry.

      . 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971).

      . Id. at 535-536, 91 S.Ct. at 544.

      . Bouschor v. United States, 316 F.2d 451, 458 (8th Cir. 1963). Accord In Re Fahey, 300 F.2d 383, 385 (6th Cir. 1961). Both of these eases rely on language in Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 50 L.Ed. 652 (1906).

      . Application of House, 144 F.Supp. 95, 100 (N.D.Cal.1956). Accord United States v. Judson, 322 F.2d 460 (9th Cir. 1963).

      . As an alternative reason for not obeying the summons, White might have argued that the documents were protected by the attorney-client privilege. This argument has been uniformly rejected by the courts on the ground that pre-existing documents such as an accountant’s workpapers cannot constitute a confidential communication between the attorney and his client. See, e. g., United States v. Judson, 322 F.2d 460 (9th Cir. 1963). But see The Attorney and His Client’s Privileges. 74 Yale L.J. 539 (1965).

      . Compare Application of House, 144 F.Supp. 95 (N.D.Cal.1956) with Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963). See also United States v. Judson, 322 F.2d 460 (9th Cir. 1963); In re Fahey, 300 F.2d 383 (6th Cir. 1961); and United States v. Boccuto, 175 F.Supp. 886 (D.N.J.) appeal dismissed, 274 F.2d 860 (3d Cir. 1959).

      . 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). The instant case was argued some time ago, but our decision has been delayed awaiting the decision of the Supreme Court in Couch.

      . By the time the government sought enforcement of the summons issued to Couch’s accountant, the documents in question had been delivered to Couch’s attorney. Nevertheless the Court treated the case as if the documents had remained in the accountant’s possession because otherwise the command of a summons could be evaded simply by transferring possession before enforcement is sought. Thus the rights and obligations of the parties involved become fixed when the summons is served, and a transfer cannot alter them.

      . 409 U.S. 322, 333, 93 S.Ct. 611, 618, 34 L.Ed.2d 548, 557 (1973).

      . The Court also held that the Fourth Amendment did not afford the taxpayer any protection against the production of the documents sought by the government.

      . 232 F.2d 855 (8th Cir. 1956).

      . 272 F.2d 344 (2d Cir. 1959).

      . In many respects the taxpayer in Couch was in a better position to claim constructive possession than is the taxpayer here. In Couch the taxpayer herself raised the fifth amendment claim. Furthermore she actually owned the documents sought by the government and had them in her possession at one time. She had relinquished possession of them to her accountant so that lie could assist her in preparing her returns. Nevertheless, the possibility that she was in constructive possession by the documents in question was given scant attention by the Court.

      . There has been some confusion as to what papers the government is seeking, confusion that is no doubt exacerbated by the reference in the district court’s order to offer in compromise files. For the sake of clarity we refer to the government’s brief at page 12:
      We do not know that the workpapers were created to prepare the tax returns, and I think the summons is clear in that we want the workpapers that pertain to the correctness of the tax returns. We do not seek any information with regard to the offer in compromise.

      . The accountant, Stanley H. Voelkel, testified as follows:
      Q. Mr. Voelkel, when Mr. White acquired possession of the documents did you know on whose behalf he was acting?
      A. Yes, sir.
      Q. Was it your understanding Mr. White was acquiring those records for himself or on behalf of Mr. Roberts?
      A. On behalf of Mr. Roberts.
      Q. Were you aware of the fact that Mr. White at that time was the attorney representing Mr. Roberts?
      A. I did assume that he was, and it was implied that he represented Mr. Roberts. Otherwise, I wouldn’t have given him the files.
      Q. So you turned the files over to Mr. White as Mr. Roberts’ attorney?
      A. Yes.
      Q. Was there any specific time limitation on Mr. White’s right as Mr. Robert’s attorney to keep possession of those records?
      A. Well, he was to return them to me when he finished with them in connection with his representation of Mr. Roberts.
      Q. So that the period of his possession as far as you were concerned was indefinite, is that correct?
      A. Yes.

      . See generally Lyon, Government Power and Citizen Rights in a Tax Investigation, 25 Tax Lawyer 79 (1971).

      . But see United States v. Widelski, 6 Cir., 1971, 452 F.2d 1, 5 (declining to follow Cohen), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). This case was decided before the Supreme Court cited Cohen favorably in Couch v. United States, 409 U.S. 322, 330 n. 12, 93 S.Ct. 611, 617 n. 12, 34 L.Ed.2d 548 (1973).

      . There are eases to the contrary. See, e. g., Bouschor v. United States, 8 Cir., 1963, 316 F.2d 451, 458; In re Fahey, 6 Cir., 1961, 300 F.2d 383. But they rely on dicta from Supreme Court cases where a mere agency relationship existed for the benefit of a public entity which had no Fifth Amendment privilege, such as in Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); McAlister v. Henkel, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671 (1966); and Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906).

      . See Rule 503, Rules of Evidence for United States Court and Magistrates, 41 L.W. 4021 (U.S.Sup.Ct. Nov. 21, 1972).

      . The new ABA Code of Professional Responsibility in its Ethical Consideration 4-4 notes: “The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.”

      . This rule is stated without regard for the path traveled by the documents. No policy would be served by requiring the client first to touch the documents before turning them over to his lawyer. The important fact in this case is that Voelkel gave the documents to White after assurances that he took possession for Roberts. See also Comment, The Attorney and His Client’s Privileges, 74 Yale L.J. 539, 548 (1965) (for an alternative rationale).

      . Justice Marshall in his dissent to Couch suggested that the attorney’s possession is an example of protected third party custody:
      A transfer to a lawyer is protected, not simply because there is a recognized attorney-client privilege, but also because the ordinary expectation is that the lawyer will not further publicize what he has been given.
      409 U.S. at 350, 93 S.Ct. at 627, 34 L.Ed. 2d 548.


author: PELL, Circuit Judge. FAIRCHILD, Circuit Judge

text:
    UNITED STATES of America ex rel. Alexander LITTLE, Petitioner-Appellant, v. John J. TWOMEY, Warden, Respondent-Appellee.
    No. 71-1743.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 12, 1972.
    Decided April 19, 1973.

      James R. Streicker, Chicago, Ill., for petitioner-appellant.
    William J. Scott, Atty. Gen., Michael J. Murphy, Chicago, Ill., for respondent-appellee.
    Before FAIRCHILD, PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

Appellant Alexander Little, presently in state custody under two concurrent 20 to 40 year sentences for murder and robbery, appeals from the denial of a writ of habeas corpus. The district court in a preliminary order of November 10, 1970, dismissed all but two of Little’s numerous claims, having determined that he had not exhausted his state court remedies as to such dismissed claims by his appeal to the Illinois Supreme Court. People v. Little, 44 Ill. 2d 267, 255 N.E.2d 447 (1970). The two remaining issues were the denial of a right to speedy trial and incompetence of trial counsel. On January 29, 1971, the district court denied the writ.

From the state court transcript there is little doubt that Little did in fact rob a tavern on the evening of July 10-11, 1962. In leaving the scene, he shot and killed a man. The principal, if not the only, defense presented at trial was that he was legally insane. Little testified at his trial that he could not remember anything from a couple of days before the robbery until two months after the event.

Little had been apprehended shortly after the robbery and shooting. While in jail he twice attempted suicide and was totally uncommunicative. The public defender moved for a psychiatric examination. Dr. Haines, Director of the Behaviour Clinic of the Criminal Court of Cook County, examined Little and recommended that he be committed as “insane,” since he was unable to understand the charges against him or cooperate with an attorney. Following a sanity hearing before a jury on August 3, 1962, Little was committed to the Illinois Security Hospital. It would appear that Dr. Haines had a question as to whether Little might have been malingering.

On February 5, 1964, Little filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County requesting a sanity hearing. At the hearing, Little was unrepresented by counsel, and apparently his counsel of record, the public defender, was never advised of these proceedings although the statute requires it. Ill.Rev.Stat. 1963, ch. 38, § 104-3. He testified that he knew the nature of the charge against him and that he would cooperate with his attorney in preparing his defense. A Dr. E. R. May testified that Little was very uncooperative and abusive, that he had refused work, and that May felt that “he is not ready for a discharge at this time.” The court denied Little’s petition at the end of the hearing.

We are left with the impression from Little’s brief on this appeal that the attention given to his claim of competency was cursory and nonmeaningful. While the hearing of April 1964 may not have been marked with a full panoply of due process trappings, our own independent examination of the record convinces us that he was scarcely a forgotten man as far as the State of Illinois was concerned. The testimony of Dr. Haines reflects a continuing course of seeing and examining Little to determine whether he knew “the nature of the charge and was he able to cooperate with his counsel.” Dr. Haines’s examinations of Little according to his testimony occurred on August 1 and 12 and September 9 in 1962, January 12 and October 19 in 1963, March 15 and April 9 in 1964, and January 24, May 23 and August 18 in 1965. According to the doctor, “when I would examine him he never told me the nature of the charge or cooperated in the examination.” This status remained true even as late as May 1965 when Little told the doctor that he had filed the petition in Cook County. By the time that this petition came on for hearing in August of 1965, Little for the first time, at the examination of August 18, 1965, had discussed with the ■ doctor the charges in such a manner that the doctor could give the opinion that Little was competent to stand trial.

During much of the intervening time, Dr. Haines apparently entertained a suspicion that Little was malingering; however, to force the defendant into a trial upon this suspicion while the manifestations of the malingering, if that was the fact, continued to exist would leave the situation open to the charge that he indeed was not competent to stand trial. Certainly if Little was malingering, the pointing finger of responsibility for delay returns to him, and if he was not, there was a reasonable basis for not taking him to trial.

Little’s brief on this appeal does not indicate that the Randolph County Circuit Court relied on testimony other than that of Dr. May; however, it appears that Dr. Haines was present at the hearing and either testified or explained to the court what his opinion was. In fact, Little in the state court in a motion to dismiss filed in 1966 referred to the fact that Dr. May testified with Dr. Haines concurring.

We have no reason from this record for thinking other than that the State of Illinois was desirous of getting on with the trial, but as Judge Marovitz stated, “the delay resulted from an attempt to protect petitioner until he was capable of standing trial.”

Subsequently, Little filed another petition for a competency hearing in the Circuit Court of Cook County. A hearing was held on August 25, 1965, and a jury found Little competent to stand trial. Little’s trial and conviction followed several months thereafter. In the Illinois Supreme Court, Little relied primarily on the violation of the Illinois statute which requires the state to bring a defendant to trial within 120 days. (Ill.Rev.Stat.1961, ch. 38, § 748, now Ill.Rev.Stat.1971, ch. 38, § 103-5.) Federal habeas corpus, however, only reaches violations “of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus, we must decide only whether or not Little’s federal constitutional right to a speedy trial was violated.

The Sixth Amendment right to a speedy trial is as fundamental as other aspects of that Amendment which have been applied to the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court mandated a balancing test to determine if the right to a speedy trial had been violated. Four factors are to be considered in each case: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530, 92 S.Ct. at 2192. Here, the length of delay is such as to be presumptively prejudicial: Little was not brought to trial until 4 years after the crime took place.

But the state contends that the reason for the delay — Little’s incompetency to stand trial — compels a conclusion that the right to a speedy trial was not denied. Certainly a defendant who is incompetent, in that he does not understand the crime with which he is charged and cannot help his counsel, cannot be tried. Such action would constitute a denial of due process. People v. McLain, 37 Ill.2d 173, 226 N.E.2d 21 (1967). The incarceration for a reasonable period of time because of established incompetency to stand trial would thus appear to be a sufficient answer to any speedy trial claim under the Sixth Amendment as applied to states under the Fourteenth Amendment. A different matter, and one not argued here, would be involved if Little had been held “more than the reasonable period of time necessary to determine whether” there was a substantial probability that he would attain capacity in the foreseeable future. Cf. Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). In our opinion, in either context, “a reasonable period of time” must to some extent be equated with the gravity of the offense involved. Here the charge was murder and robbery as contrasted to a petty theft. Little was in a state mental hospital, presumably receiving the mental-medical attention provided by such institutions, and during the course of his stay he was examined with a degree of regularity to ascertain whether competency to stand trial had been restored. We may fairly infer from the record that at no time was it indicated that the competency would not be achieved in the foreseeable future.

The factual situation at this point presents an implicit dilemma. If Little had been found competent to stand trial in April 1964, and had been tried, it is not entirely unreasonable to believe that notwithstanding he had claimed then he was competent and would cooperate with counsel, we would now be met with a claim that he was improperly forced to trial over the opinion of the examining doctor that he was not ready for a discharge.

Little, however, argues that he should have been declared competent after the initial hearing in the Randolph County Circuit Court. Not only does he contend that the factual determination of the judge was wrong, but he also argues that the denial of his procedural rights was so substantial as to require a presumption that the limitation period of the speedy trial test must be- presumed to have commenced running on that date.

Both the Illinois Supreme Court, 44 Ill.2d at 271, 255 N.E.2d 447, and the district court refer to the fact that Little did not appeal the adverse decision. We find no aspect of waiver in this failure and do not read the previous decisions to this effect. Little’s counsel of record was not informed of the hearing. Little, who apparently was not advised of his right to appeal, was incarcerated in a mental institution. We do note, however, if there had been an appeal the only relief which could have been ordered was to remand for another hearing. That was secured by Little the following year, in all probability prior to the time that an ordered hearing following an appeal reversal would have been held.

Even though the 1964 hearing itself lacked some of the adversarial indicia of due process, we do note that the trial judge had an opportunity to observe Little’s appearance and demeanor. Especially when the question is one of the competency of an individual to stand trial, the cold transcript may not reflect one of the most important pieces of evidence available to the trier of fact — the individual’s demeanor. Thus, we are unable to say that the court would have come to a different conclusion if there had been a searching cross-examination of the doctors.

Even if the state should have brought Little to trial after the April 9, 1964 hearing, the delay until he was determined to be competent to stand trial amounted to approximately 16 months. Subsequent delay was attributable to Little’s demands for different counsel and withdrawal of counsel, as well as one mistrial declared on the defendant’s motion due to prejudicial newspaper statements. The 16 months’ delay is less than that in Barker v. Wingo, supra, which the Court ultimately found not to be a violation of the right to a speedy trial.

The third Barker factor is demand for trial. Here Little’s filing of his pro se petition for a writ of habeas corpus in Randolph County would seem to serve as a demand which was repeated in two subsequent petitions. This is in contrast to Barker, where the Court found that Barker did not want a speedy trial, 407 U.S. at 534, 92 S.Ct. 2182. Little apparently wanted to be tried, at least from the date he filed his habeas corpus petition.

The final factor to be considered on trial delay is whether there was prejudice to the defendant. There is always the possibility of prejudice to a defendant from any delay of a trial, although this is a two-edged factor, as the memory and ability of state witnesses to testify accurately are subject to the same time hazards as defense witnesses’. Other factors of delay-prejudice are outlined in Barker, supra, 407 U.S. at 532-533, 92 S.Ct. 2182. We are particularly concerned here, however, not so much with the inherent possibility of prejudice in the general sense as with whether there was specific prejudice to Little in his defense. United States v. DeTienne, 468 F.2d 151, 157 (7th Cir. 1972).

In this respect, Little relies on two factors, the difficulty of proving his insanity defense where his psychiatrist did not examine him until three and one-half years after the offense and a missing witness. As to the first of these, it appears to us, as will be hereinafter discussed, that the crucial aspect was not so much the delay in the psychiatric examination as its inconclusiveness.

The second matter, the missing witness, as far as we can see, is being presented to any reviewing body for the first time on this appeal. The statement appears in Little’s brief that a witness, “Miss Kathrine Warthon, was dating petitioner at the time of the offense and had been for some time. Her testimony would have been extremely helpful in terms of establishing petitioner’s pattern of behavior and mental state at or near the time of the offense. However, when petitioner finally came to trial, Miss Warthon had left the jurisdiction of the court. As a result, an important link in establishing the defense of insanity was lost.”

No source, in the record or elsewhere, is stated in the brief. There is no indication when the previously unidentified witness may have departed or how long she may have been unavailable. As far as we can tell from the reference in the brief, she might have been unavailable if there had been a much earlier trial date. There is no showing that there were not other intimates who could have testified to his pattern of behavior such as fellow employees, other social acquaintances, members of his family, and neighbors. This was not a case of a sole alibi witness but of a witness who was to testify as to facts which, if true, should have been discernible to others with whom Little had frequent contact. Also, there is nothing to indicate that Miss Warthon’s actual whereabouts were unknown. If she had left the jurisdiction she would not have been subject to subpoena presumably, but there is no showing that she would not have come back voluntarily or that her deposition could not have been taken.

Finally, our independent examination of the record causes the air of mystery to deepen. During the course of the trial, Little’s counsel indicated he had two more witnesses who were not in court. One of these was Little’s brother, of whom more hereinafter. The other witness was Thelma Lewis whose address was given. The brother was to get her. This witness had been, according to the defendant, in his company a week or two prior to July 10th, the date of the offense. She was described as a social acquaintance.

The trial court with a show of consideration to Little had the state go ahead with rebuttal witnesses but held the case open so that the absent witnesses could testify the next day if they appeared. On the next morning, Thelma Lewis was not present but counsel stated “if she does arrive I’m not going to put her on the stand, I think it is in the best interest of my client.” We find no reference to Miss Warthon.

Little’s brother did, however, appear and testify as to the matter of the defendant’s behavior during the period prior to the date of the offense. The court, in our opinion, evinced a desire to see that the defense was not thwarted by overly technical evidentiary rules. Thus, the transcript reflects the following:

Q. Now, in the spring of 1962, did you notice anything unusual about your brother’s behavior or any change ?
MR. OPLATKA: Object to that date, the date in question is July of 1962.
THE COURT: Well, I’ll allow him to answer.
MR. CAWLEY: Q. Do you remember the question?
A. Repeat it again.
MR. CAWLEY: Q. In the spring of 1962, in the months of May or June or at anytime did you notice anything unusual about your brother’s behavior?
A. Yes, he made quite a change, yes.
Q. When you say a change are you referring to something different than his previous actions?
MR. OPLATKA: Objection, your Honor, that is leading.
THE COURT: He may answer.
A. Yes, his attitude was different, he drinked a lot more and he was more — used more vulgar words around my wife and children.

The brother further testified that on one occasion when he had denied Little the use of the brother’s automobile because the brother’s wife wanted to use it, Little had used vile language in front of the wife. It was still cold when this happened and otherwise the date of the incident was not definite. Also, in June 1962, Little “used a lot of language” around his mother, and the brother told Little he should respect his mother. The witness did not recall any other specific instances of conduct. Nevertheless, although a lay witness, the court did permit him over objection to express an opinion:

Q. Do you have an opinion based upon your observance of the change in your brother, as to his mental condition in July of 1962?
MR. OPLATKA: Objection.
THE COURT: I’ll allow him to answer.
A.' I would say he was mentally instable because of the attitude he take.
MR. CAWLEY: Would you repeat that, please?
A. He was mentally disturbed because of the attitude he taked toward his people and his friends.
Q. Was that condition substantially different than his condition in prior years ?
A. Yes.
MR. CAWLEY: That is all.

We note the brother’s testimony in part because of its indication that the state trial court appeared not to have been affording less than a full opportunity to Little to prove his defense and in part as it reflects upon Little’s claim, hereinafter treated, that his counsel did not competently present that defense. At most, the testimony of Miss Warthon, and it is far from clear just what her testimony would have been, would probably have been cumulative to that which the brother adduced.

We turn then to balancing the four factors discussed above on an ad hoc basis^ There was a delay of 16 months based on a claim of a denial of Little’s right to due- process in a competency hearing. Little did request a trial. Prejudice to him seems scarcely clearly demonstrated other than in a general sense. On these facts, it is our opinion that the delay was not such as to deprive Little of his right to a speedy trial. We place weight on the fact that the state’s reasons were not shown to be wrong and the prejudice both by the lack of adversarial proceedings and to his defense would seem to be de minimis.

Little also claims that his appointed trial counsel was incompetent since he was unable to phrase an unobjectionable question to the defense’s psychiatric expert witness, Dr. Seglin. This court has stated that a trial must be a “sham or mockery” in order for a,petitioner to be entitled to “habeas corpus relief by reason of ineffective assistance of counsel,” Sims v. Lane, 411 F.2d 661, 665 (7th Cir. 1969), cert. denied, 396 U.S. 943, 90 S.Ct. 378, 24 L.Ed.2d 244. The United States Court of Appeals for the District of Columbia recently stated that the “sham or mockery” standard is based on the Fifth and Fourteenth Amendments’ due process clauses. That court stated in Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970), that the Sixth Amendment right to counsel compels a higher standard of competence of counsel, to-wit: “whether gross incompetence blotted out the essence of a substantial defense.” 427 F.2d at 610. It is this latter test that Little urges us to apply to his case. Little’s only defense was insanity. Thus, it might be argued that in his case the two tests are virtually indistinguishable since if his attorney was so incompetent as to “blot out the essence” of his only “substantial defense” the trial might be reduced to a “sham or mockery.”

The district court agreed with the Illinois Supreme Court that Little was ably represented, that all favorable evidence was presented on his behalf, and that the trial court’s rulings during Dr. Seglin’s testimony were basically due to the court’s beliefs about the doctor’s qualifications to testify about a certain matter. We might not agree if these courts were in effect saying that Dr. Seglin’s examination, conducted in December 1965, was too remote to permit him to be considered a competent witness. Wright v. United States, 102 U.S.App.D.C. 36, 250 F.2d 4, 9 fn. 2 (1957). As an expert witness, the doctor should have been capable of determining whether he could form an opinion as to the mental capacity as of a time three and one-half years prior to the date of the examination. If he had expressed an opinion as of the earlier date, the remoteness of the examination would go to the weight rather than the competency of the testimony.

Here, however, under the above standard, the doctor, who apparently was well qualified in his specialty, did, from a fair reading of the record, indicate that he had not formed an opinion sufficiently medically certain to permit the expression thereof. The examination conducted at the county jail lasted approximately one and a half hours. The examination consisted of reviewing hospital records and interviewing the patient. It is not clear whether the expressed time included both the record review and the interview, but even if it did not, the total exposure of the doctor to the individual was only a very short time. When Dr. Seglin was asked about his opinion he stated it in terms of being “quite possible.” This, of course, is sufficiently indefinite that we could not say the trial court, which had been somewhat lenient in letting in arguably improper testimony on the issue, abused its discretion. Further, Dr. Seglin admitted on cross-examination that he had no idea of Little’s mental condition as of the date of the offense. Since the doctor, although only having a limited period for examination of Little, did have an opportunity to examine his hospital records, it appears to us to be a fair inference that the lapse of time before the examination was not the precluding factor in his lack of opinion but rather that there was insufficient indication of factors in Little’s history to enable a psychiatrist to form an opinion with any degree of medical certainty.

We are not considering the court’s rulings as we would in the case of a direct appeal but are only considering them in the context of a constitutional claim of incompetent counsel. The plain fact as it appears to us is that the counsel did what he could with the material he had, but that that material just did not include an opinion as to mental competency on the crucial date.

Little also argues, however, that irrespective of the doctor having an admissible opinion based upon the actual case, the defense could have been helped by an answer to a hypothetical question and that his counsel was unsuccessful in phrasing such a question. A hypothetical question, of course, could only have encompassed predicate facts which had been introduced into evidence, and while we agree that the attorney was unsuccessful in phrasing an unobjectionable question, we cannot say on the meagre material, such as the use of vile language in front of his brother’s wife, which he had as a basis for use in a hypothetical question, that his lack of success blotted out the essence of a substantial defense, much less that it made the trial a sham or mockery. We do not say that the art of advocacy reached its highest level in the particular situation but merely that on the total picture the representation was not so deficient as to bring into play the constitutional violation of right of effective counsel.

Finally, we must consider Little’s claim that the district court was incorrect in dismissing some of his claims for failure to exhaust state remedies. In his direct appeal, Little’s counsel only raised the competence of trial counsel and the speedy trial issues. The relationship between Little and his appellate counsel was marked by friction over the speed or lack of same with which counsel was pursuing the appeal. In his petition in the district court, Little alleges as one of his grounds for the issuance of a writ of habeas corpus the indifference and hostility of appellate counsel.

On these facts, we think that this case resembles most closely People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456 (1965), where the Illinois Supreme Court relaxed its usual rule that the failure to raise an issue on direct appeal bars its subsequent assertion in a Post-Conviction Hearing Act proceeding. Hamby had unsuccessfully tried to have his appellate counsel changed and to have the court consider other points not raised by counsel. The court had denied all such motions and affirmed the conviction. When Hamby sought to raise these same matters, not raised by his counsel on appeal, in a Post-Conviction Hearing, on motion of the state, the petition was dismissed on the basis of the res judicata effect of the Supreme Court’s decision. Hamby appealed and the Illinois Supreme Court reversed, carving out a narrow exception to the waiver doctrine “where fundamental fairness so requires.” 32 Ill.2d at 294, 205 N.E.2d 456. It appears to us that Little’s alleged relationship with his appellate counsel is closer to Hamby’s than to the situation in People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126 (1966), or People v. Agnello, 35 Ill.2d 611, 221 N.E.2d 658 (1966), where the doctrine was not relaxed. As this court said in a similar case, “We cannot assume that petitioner’s disagreement with counsel cannot ultimately be presented to the Illinois Supreme Court for consideration in aid of petitioner’s review should he not prevail in the post-conviction remedy, which the state concedes is available to him.” United States ex rel. Millner v. Pate, 425 F.2d 249, 250 (7th Cir. 1970). As in Millner, we assume that the State of Illinois will not object on the ground of waiver to such a petition which it has in this court conceded to be procedurally proper.

For the reasons hereinbefore given, the judgment of the district court is affirmed.

Affirmed.

FAIRCHILD, Circuit Judge

(concurring).

Defense counsel called as a witness the psychiatrist who had examined Little in December, 1965. The direct testimony, after qualifying the witness, went as follows:

“Q. How long did that examination take? A. The examination took approximately one and a half hours.
Q. And of what did this examination consist. A. The examination consisted of reviewing hospital records and interviewing the patient in direct question and answer type of interview.”
* * * * * *
“Q. Did you have sufficient material at that time, Doctor, to form an opinion as to the legal sanity of Mr. Little?
[Prosecutor]: Objection, your Hon- or.
THE COURT: At that time.
[Defense counsel]: Up until today.
THE COURT: Only as of December, 1965, when he examined him.
[Defense counsel]: This was a preliminary question. Did you have enough material and was your examination sufficient to allow you to form an opinion? A. At the time of my examination ?
Q. Yes. A. Yes.
Q. And based upon your experience, Doctor, and your examination of Mr. Little and the hospital records, and from the knowledge which you know concerning this crime itself, the commission of this crime as charged, murder and robbery, do you have an opinion as of this date, as of today, as to the legal sanity — I would like to read that more carefully, to define it — whether or not a person, due to mental disease or mental defect, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; do you have an opinion as to whether or not Alexander Little was legally sane on July 10, 1962? A. I do have an opinion, yes.
Q. Will you state that opinion for the Court? A. My opinion is that it is quite possible, from a psychiatric point of view, that he was not competent to make the judgments necessary to conduct himself in accordance with the law on that date.
[Prosecutor]: Object to that answer, that is not—
THE COURT: Sustained, it is stricken.
You will have to give him a hypothetical question with all the things that are here. How can he say what a man was back in — can you say definitely what a man’s condition was back in 1962 when you examined him in 1965? A. No, I could not.
[Defense counsel]: Q. But based upon certain materials and your own examination — •
THE COURT: Sustained.
[Prosecutor]: Object.
THE COURT: Sustained.
[Defense counsel]: Well—
THE COURT: Counsel, the only way he can give an opinion, you will have to lay the proper foundation, you will have to ask a hypothetical question with all the facts and circumstances, based on that.
[Defense counsel]: I’ll ask a hypothetical. Would the Court permit me, in the hypothetical question, permit me to include the background upon which he made this examination?
THE COURT: The only hypothetical questions are hypothetical things— or the matters that are presented here, that are before this jury.
[Defense counsel]: Well, the doctor based his opinion upon certain examinations performed.
THE COURT: He didn’t perform these examinations.
[Defense counsel]: He performed one examination.
THE COURT: In December of 1965. You can find out what his opinion was of the man in 1965 when he examined him, what his opinion was as to his mental condition then.
[Defense counsel]: Well, that is half the problem. I’ll phrase the hypothetical, Judge.
Do you have an opinion, Doctor, based upon your examination of December 1, 1965, as to Mr. Little’s mental capacity and condition as of that time?
[Prosecutor]: Objection, your Hon- or, that is not the statutory definition.
THE COURT: Sustained.
[Defense counsel]: Q. Do you have an opinion as to Alexander Little’s legal sanity as of that date?
[Prosecutor]: Object.
THE COURT: Sustained.
[Defense counsel]: Q. Do you have an opinion as to whether or not the defendant had sufficient capacity to conduct his conduct to the requirements of law and that he had sufficient capacity to appreciate the criminality of his conduct?
[Prosecutor]: Objection, no foundation laid.
THE COURT: Sustained.
[Defense counsel]: I have no further questions. Any cross?
THE COURT: And the part that the doctor said on possibility, that is stricken and the jury is instructed to disregard it.”

With all respect, I must conclude that defense counsel was wholly unprepared to make any meaningful use of this expert. This was the only defense he was trying to present. There was no surprise or other excuse for failing to ascertain in advance what relevant opinions the expert was able to form and for failing to ask appropriate questions if such opinions warranted bringing this expert before the jury. It is most unlikely that it was trial strategy just to get the doctor before the jury and to ask improper questions in order to avoid unfavorable answers. The prosecutor, in final argument, made good use of the fact that the judge struck out the answers the doctor “tried to give here to help this man.”

Undoubtedly defense counsel failed to prepare himself by conferring with the doctor and learning what appropriately based and relevant opinions the doctor could state. It may well be he would have learned there was no purpose in calling him. If the doctor were able to state relevant opinions, upon an appropriate hypothesis, counsel was unprepared to adduce them.

At the time the doctor testified, the jury had heard Little’s own testimony concerning his loss of memory, and that fact was available for a hypothesis. Counsel had not, however, brought before the jury other clearly available information which would seem likely to make a difference if any would, e.g., two suicide attempts and bizarre behavior during the three weeks following the murder and robbery, a jury’s finding on August 3, 1962 that Little was then insane, and hospital records during the period of his hospitalization.

Defense counsel’s performance in this area appears dismal. Nevertheless the record contains much to demonstrate that the insanity defense lacked substance.

Much of the material about Little’s bizarre behavior in jail and his hospitalization was later brought before the jury by Dr. Haines, a state rebuttal witness, who observed Little at the jail and thereafter. Dr. Haines thought that Little was malingering, although at the first observations he was unable to say whether Little’s conduct was malingering or a psychological reaction to his impending trial. The testimony of persons who observed and spoke with Little for a period of hours after the offense was convincing that he behaved normally, and correctly gave information concerning his identity, employment history, and family. In the entire examination of the defense psychiatrist, by both counsel and the court, there is a strong suggestion that his opinion would never have risen above the level of mere possibility, even if appropriate questions had been asked.

Although aware that the harmless error doctrine can not be applied to denial of right to counsel. Chapman v. California, 386 U.S. 18, 23, footnote 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), I can agree here that there was no substantial insanity defense to be “blotted out” and that the trial was not reduced to a sham or mockery.

      . The range of dismissed claims in the pro se petition before the district court swept broadly through alleged mistreatment at the Illinois Security Hospital, faulty indictment, hostility of the trial judge, intellectually and racially discriminatory jury, improper pretrial procedures, improper conduct of the prosecuting attorney, hostile appellate counsel, and a general denial of due process. The foregoing is a most abbreviated summary of the six pages of the single spaced, detailed statement of claimed grounds for the writ. The district court appears to have resisted what might be an expectable human impulse, arising from the indiscriminately wide claim of improprieties of the judicial procedures afforded the claimant, to have dismissed the entire petition as frivolous.