author: BRIGHT, Circuit Judge. WEBSTER, Circuit Judge

text:
    In the Matter of Franklin Michael Gehrig, Bankrupt. Franklin Michael GEHRIG, Appellant, v. Kenneth E. SHREVES, Trustee, Appellee.
    No. 73-1352.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 19,1973.
    Decided Feb. 6, 1974.
    Robert S. Catz, Legal Aid Society of Omaha-Council Bluffs, Inc., Omaha, Neb., for appellant.
    Kenneth E. Shreves, appellee, waived oral argument or filing of appellee’s brief.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   BRIGHT, Circuit Judge.

This case raises important issues in the administration of the estates of bankrupt wage earners: whether post-bankruptcy income tax refunds derived from prebankruptcy wages can be claimed by the bankrupt’s trustee as “property” within the scope of § 70 (a)(5) of the Bankruptcy Act; and whether the tax refund is subject to the restrictions on wage garnishments of the Consumer Credit Protection Act of 1968.

The district court adopted the opinion of the bankruptcy referee and held that the refund from overpayment of income tax by Franklin Michael Gehrig belonged to the trustee in bankruptcy., Bankrupt-Gehrig appeals this decision. We reverse and remand the ease for further proceedings.

In passing on the issues in this appeal, we are mindful of a conflict between two other circuits. In the case of In re Cedor, 337 F.Supp. 1103 (N.D. Cal.1972), affirmed by the Ninth Circuit in In re James, 470 F.2d 996 (9th Cir.), cert. denied sub nom. Walsh v. Cedor, 411 U.S. 973, 93 S.Ct. 2148, 36 L.Ed.2d 697 (1973), it was held that income tax refunds generated from the minimum amounts withheld from wages as required by law does not constitute § 70(a)(5) “property” and, therefore, such refund belongs to the taxpayer-bankrupt. The Cedor court also ruled that a refund of income taxes attributable to optional withholding of amounts greater than the minimum required by law should be considered as wages which are protected by the anti-garnishment provisions of the Consumer Credit Protection Act, 15 U.S.C. §§ 1672 and 1673. The Second Circuit’s opinion of In re Kokoszka, 479 F.2d 990 (2d Cir.), cert. granted sub nom. Kokoszka v. Belford, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), decided that a wage earner’s income tax refunds did constitute “property” passing to the trustee and that the Consumer Credit Protection Act was inapplicable.

We agree with the court in Cedor that such tax refunds do not constitute “property” under § 70(a) (5), but we are unpersuaded by its finding that the anti-garnishment provisions of the Consumer Credit Protection Act applies.

I.

TAX REFUND ATTRIBUTABLE TO MINIMUM WITHHOLDING.

Our decision turns upon an analysis of two Supreme Court decisions. In Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), the Court considered a loss-carryback tax refund claim obtained by a bankrupt partnership which related to prebankruptcy losses. The Court concluded that refund claims had passed to the trustee under § 70(a)(5) as “property ‘which prior to the filing of the petition . ... [the bankrupt] could by any means have transferred.’ ” Id. at 381, 86 S.Ct. at 516 (footnote omitted) (brackets in original).

In Segal, the Court rejected the holdings of Fournier v. Rosenblum, 318 F.2d 525 (1st Cir. 1963), and In re Sussman, 289 F.2d 76 (3d Cir. 1961), that such loss-carryback refund claims for prebankruptcy business operations do not pass to the trustee. Although the tax refund claims in Segal could be made only after the close of the tax year in which the bankruptcy occurred, the Court said that potential claims for loss-carry-back refunds constitute “property” within the language of § 70(a)(5) since, among other things, these refund claims are “sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupts’ ability to make an unencumbered fresh start * * Segal, supra at 380, 86 S.Ct. at 515.

The second Supreme Court decision which is apposite to this appeal is Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970) (per curiam). There the Court ruled that a wage earner's vacation pay, accrued but unpaid upon the filing of the petition in bankruptcy, did not pass to the trustee in bankruptcy as “property” under § 70(a)(5). The Court focused on the beneficent purpose of the Bankruptcy Act and said:

The wage-earning bankrupt who must take a vacation without pay or forgo a vacation altogether cannot be said to have achieved the “new opportunity in life and [the] [brackets in original] clear field for future effort, unhampered by the pressure and discouragement of preexisting debt,” Local Loan Co. v. Hunt [292 U.S. 234, 54 S.Ct. 558, 78 L.Ed. 1049] which it was the purpose of the statute to provide. [400 U.S. at 20, 91 S.Ct. at 114.]

See also Williams v. U. S. Fidelity Co., 236 U.S. 549, 554-555, 35 S.Ct. 289, 59 L.Ed. 713 (1915).

Distinguishing vacation pay in Lines from the tax refund claim arising out of business operations in Segal, the Court added:

Applied to the set of facts before us here, the principles reflected in the earlier cases compel a decision for the bankrupt. In Segal, a business had ceased to operate and the task of the trustees in bankruptcy was to marshal whatever assets were left for distribution to the creditors. The tax refund claim, arising out of the operations of the business and specifically out of the losses that had precipitated its failure, was such an asset. By contrast, the respondents here are wage earners whose sole source of income, before and after bankruptcy, is their weekly earnings. The function of their accrued vacation pay is to support the basic requirements of life for them and their families during brief vacation periods or in the event of layoff. Since it is a part of their wages, the vacation pay is “a specialized type of property presenting distinct problems in our economic system.” Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 23 L.Ed.2d 349 [400 U.S. at 20, 91 S.Ct. at 114.]

Resolution of the instant controversy rests on whether the rationale of Segal or Lines most appropriately applies to the wage earner’s tax refund claim made here. The Second Circuit in Kokoszka rejected Lines as the applicable precedent, concluding that:

What we have then in Lines is a very narrow exception to the general proposition that everything of value passes to the trustee, i. e., vacation pay which will become essential for basic week to week support in the future does not pass. Because a tax refund is not the weekly or other periodic income required by a wage earner for his basic support, to deprive him of it will not hinder his ability to make a fresh start unhampered by the pressure of preexisting debt. Therefore, the tax refund is § 70(a)(5) property which passes to the trustee. [479 F.2d at 994-995.]

As we have already noted, the Ninth Circuit reached a contrary conclusion in affirming Cedor. Ruling that the income tax refund is equivalent to the vacation pay present in Lines, the Cedor court stated:

There is nothing to suggest that the sums refunded were related to the circumstances which precipitated the bankruptcy. The Supreme Court considered the question in Segal to be “close”, 382 U.S. 379 * * * ; in light of Lines and Snaidach. [sic], [395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349], the balance on this question tips in favor of the bankrupt. The collection by the Internal Revenue Service without the consent or control of the bankrupt, and the belated refund, render these funds quite similar in a practical sense, to the accrued but unpaid wages which constituted vacation pay. If Lines stands for anything, it is that the practical realities are controlling in this determination. While the amount of refund is not so easy to calculate as the amount of vacation pay, it may generally be said to be an amount that, by reason of past experience, is anticipated by the wage-earner as an annual event. To deprive the wage-earner of that planned-on annually recurring payment, cannot be said to be less severe than the deprivation of two weeks of paid vacation, in terms of a fresh start. [337 F.Supp. at 1105.]

Although related questions have come before us, we have not heretofore passed on the precise issue presented by this appeal. However, we comment briefly on cases of this circuit which involved tangential issues.

The district court for the District of Minnesota had previously considered and denied a claim identical to that made by appellant-Gehrig. In re Jones, 337 F. Supp. 620 (D.Minn.1971). We denied the bankrupt’s leave to appeal under Section 24 of the Bankruptcy Act, 11 U.S.C. § 47(a), which section permits an appeal of a judgment of less than $500 only upon allowance of the appellate court. The bankrupt applied for certiorari but the application was denied, 404 U.S. 1040, 92 S.Ct. 719, 30 L.Ed.2d 732 (1972). Our denial of leave to appeal did not constitute a decision on the merits.

We considered and rejected a bankrupt wage earner’s claim to an income tax refund attributable to withholding of wages in excess of minimum amounts specified by law against the claim of a trustee in bankruptcy in In re Wetteroff, 453 F.2d 544 (8th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 242, 34 L.Ed.2d 188 (1972). In Wetteroff, the bankrupt claimed his filing of a joint tax return with his wife who had no taxable income, created a tenancy by the entirety in a claim for an income tax refund attributable to overwithholding from his wages because of the bankrupt’s deliberate failure to claim his full tax exemption entitlements. The bankrupt’s claim rested on provisions of Missouri law under which persons holding as tenants by the entirety obtained no separate interest in property. The bankrupt argued, therefore, that since he and his wife held the tax refund in tenancy by the entirety, he could not acquire an individual interest in the refund claim which would pass to his trustee in bankruptcy. We rejected the contention, observing that a joint tax return cannot be deemed an instrument of conveyance or transfer by which the husband could be deemed to have conveyed any interest in his income tax refund from himself to his wife and himself. Thus, we ordered that the refund be paid to the trustee. But in Wetteroff as well, we did not meet the issue raised by the instant appeal.

We think the refund here is comparable to the wage earner’s accrued vacation pay considered in Lines and that it should be afforded the same status under § 70(a)(5). Following Lines, we hold taxpayer-Gehrig entitled to that part of the tax refund attributable to the minimum withholding from his wages as required by law. In arriving at this conclusion, we have carefully analyzed the source of funds which made possible the postbankruptcy refund.

The right to receive a tax refund is tied to the forced deductions from the taxpayer’s wages. Without the compulsion of law, the taxpayer would have earlier received the amounts here in question as wages. It is not likely that a wage earner-bankrupt would have used these funds to reduce his burden of old debts for as the Supreme Court has recognized, “[t]he debtor’s wages are his sustenance, with which he supports himself and his family. The average low income wage earner spends nearly nine-tenths of those wages for items of immediate consumption.” James v. Strange, 407 U.S. 128, 135, 92 S.Ct. 2027, 2032, 32 L.Ed.2d 600 (1972) (footnote omitted).

Gehrig’s annual earnings although not “low income,” were nevertheless modest. In view of his limited earnings and in the absence of any assets other than exempt property aside from the tax refund, as shown by the records of the bankruptcy court, we think it may be assumed that appellant’s economic status was near that of the average “low income wage earner” described in James, supra, who spends almost all earnings for items of immediate consumption.

Furthermore, the fact that a low income wage earner must forgo the immediate enjoyment and use of all his earnings because of the withholding of a part for tax purposes does not change his continuing need to spend all his funds on hand for personal and family sustenance whenever those funds become available.

The source of the refund from the bankrupt’s wages contrasts with that of the businessman’s refund in Segal. In Segal, the Supreme Court specifically noted that the taxpayers-partners had paid taxes on net income for the three years preceding bankruptcy, but showed a net loss for the year of bankruptcy. Thus, the very losses generating the refunds may have precipitated the bankruptcy. Moreover, the business earnings which were paid to the government in taxes, if not used for that purpose, would ordinarily have remained as a business asset subject to creditors’ claims. But here we have no debtor’s losses producing a tax refund nor the likelihood of the creation of a cash reserve for creditors if the debtor had retained that part of his wage withholding not needed for income taxes.

We do not construe Lines, as the Second Circuit did in Kokoszka, as representing a very narrow exception to the rule that everything of value passes to the trustee except items such as vacation pay which are essential for basic week-to-week periodic support. Lines should not be construed as an “exception” but as expressing a general policy of giving a debtor a new start after bankruptcy. As stated by the Supreme Court in the early case of Traer v. Clews, 115 U.S. 528, 541, 6 S.Ct. 155, 160, 29 L.Ed. 467 (1885):

The policy of the bankruptcy] act was, after taking from the bankrupt all his property not exempt by law, to discharge him from his debts and liabilities, and enable him to take a fresh start.

Such policy underlies the decision in Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934), where the Court invalidated as a lien interest in bankruptcy an assignment of future wages against a wage earner who became bankrupt subsequent to the assignment. The Court commented:

The power of the individual to earn a living for himself and those dependent upon him is in the nature of a personal liberty quite as much as if not more than it is a property right. To preserve its free exercise is of the utmost importance, not only because it is a fundamental private necessity, but because it is a matter of great public concern. From the viewpoint of the wage-earner there is little difference between not earning at all and earning wholly for a creditor. [292 U.S. at 245, 54 S.Ct. at 699.]

Applying these fundamental principles underlying the Bankruptcy Act, a tax refund should be considered as the kind of asset, like the receipt of vacation pay, which should remain with the debtor-wage earner when paid him regardless of the intervention of bankruptcy. Thus freed of preexisting debt by reason of his intervening bankruptcy, the wage earner may truly be afforded a “new opportunity in life.”

Additionally, the case for considering a wage earner’s tax refund generated from minimum withholding as not falling within the purview of § 70(a)(5), is as strong, if not stronger than the case made for accrued but unpaid vacation pay. Although the bankrupt’s right to receive each payment originated in the prebankruptcy past, each payment possessed the following common attributes:

1) Each payment would be needed to support the bankrupt’s basic requirements of life for them and their families ;

2) Each payment was derived from the bankrupt’s earning of wages;

3) In each case, the bankrupt had no right to obtain the funds in question prior to the intervention of bankruptcy; and

4) As to each bankrupt, the receipt of such payment would ordinarily be considered as a payment of deferred earnings from employment.

Finally, at least as to minimum withholding, the instant tax refund originated from monies withheld from the wage earner under compulsion of law.

However, we limit our decision to compulsory minimum withholding required by law for federal and state income tax purposes. To the extent that the tax refund in this case may be attributable to voluntary optional withholding by the debtor in excess of the minimum legal requirements, we hold the trustee entitled to such amount.

II.

TAX REFUND FROM EXCESS WITHHOLDING.

In effect, bankrupt-Gehrig further argues that amounts of tax refunds attributable to voluntary optional excessive withholding of wages should be treated as disposable earnings not reachable by creditors nor the trustee except to the exent -of 25 percent thereof by virtue of the protection afforded wage earners under the Consumer Credit Protection Act’s limitation on garnishment, 15 U.S.C. §§ 1672, 1673. The opinions of In re Cedor, supra,, 337 F.Supp. at 1106-1107, and In re Kokoszka, supra, 479 F.2d at 996-997, have considered possible application of this statute to income tax refunds. Cedor applied these sections to tax refunds generated by withholding of wages for tax purposes in excess of mínimums required by law, but Kokoszka rejected a similar application, holding the entire amount of the refund not to be earnings under § 1672 and not protected by § 1673. In substance, we concur with the Second Circuit’s holding that a tax refund does not qualify for protection under the Act. In its analysis that court stated:

The intent of the Consumer Act was to make sure that wage earners were able to receive at least 75% of their take home pay in any one pay period so that they would have enough cash to meet basic needs. As a side effect, it was hoped that honest debtors, with this protection on their wages, would not be forced into bankruptcy, H.Rep. No.1040, 90th Cong., 2d Sess., U.S. Code Cong. & Ad.News, pp. 1962,1977-79 (1968). It is clear, then, both from the language of the statute, §§ 1672, 1673 and the legislative intent, that “earnings” means periodic payments of compensation and does not pertain to every asset that is traceable in some way to such compensation. [479 F.2d at 996-997.]

We deem the optional withholding over mínimums required by law akin to savings of the bankrupt, which, while having an origin in wages, no longer should be considered as wages because the debtor has voluntarily changed his wages into savings. These “savings” should be reachable by the trustee under § 70(a)(5), and are not “earnings” within the ambit of §§ 1672 and 1673, simply because they are in some way traceable to such funds.

III.

CONCLUSION.

The refund in this case is substantial —$654. The record does not disclose whether Gehrig, the bankrupt-wage earner, availed himself of the maximum exemptions from withholding to which he was entitled under the federal and state income tax laws.

Accordingly, we reverse and remand this case to the district court for further proceedings. The bankrupt should be awarded that part of the refund of income taxes attributable to the withholding of legally required minimum amounts from his prebankruptcy wages. The burden of proof to establish the amount of his claim rests upon the bankrupt.

Reversed and remanded.

WEBSTER, Circuit Judge

(concurring in part and dissenting in part).

I concur in the holding of the majority opinion that a tax refund does not qualify for protection under the Consumer Credit Protection Act. I respectfully dissent, however, from the holding that a tax refund resulting from compulsory minimum withholding required by law for federal and state income tax purposes is not “property” within the meaning of § 70(a)(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5). I believe that Cedor unduly extended the narrow holding of Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970), which was confined to the unique characteristics of vacation pay. Instead, I am fully persuaded by the reasoning of the Second Circuit in Kokoszka, which holds such refunds to be § 70(a)(5) “property”.

I cannot accept the compromise implicit in the majority opinion, which would treat as “property” only that portion of the refund attributable to taxes withheld in excess of the mandatory requirements. Nor am I impressed by the argument that substantial numbers of wage earners may rely upon routine tax refunds to meet the subsistence requirements of their families. While this may be so, it is a consideration materially different from the expectation of vacation pay to cover a specific period when the wage earner would otherwise have no source of income. Finally, as noted in Kokoszka, supra, debtors who face the situation where their non-exempt assets will be entirely eaten up by administration costs, leaving nothing for creditors, can move the bankruptcy court for an order of abandonment. 470 F.2d at 996.

I would affirm the judgment of the District Court.

      . Section 70 (a) (5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5), in relevant part reads:
      (a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating- a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered * * *.

      . The anti-garnishment provisions of the Consumer Credit Protection Act of 1968 are found in 15 U.S.C. §§ 1672 and 1673, which read in part:
      § 1672. Definitions
      For the purposes of this subchapter:
      (a) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
      (b) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
      (e) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.
      § 1673. Restriction on garnishment— Maximum allowable garnishment
      (a) Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed
      (1) 25 per centum of his disposable earnings for that week[.]

      . For a general review and discussion of the questions presented here see Note, The Income Tax Refund as a Possible Asset of a Wage Earner’s Bankruptcy Estate, 87 Harv.L.Rev. 395 (1973) ; Comment, Title to Property—Employee Bankrupt’s Income Tax Refunds, 47 Am.Bankr.B.J. 239 (1973).

      . That court reached a similar conclusion in an unpublished opinion, In re Meredith J. Wise, 4-72-Bky 617 (N) (D.Minn., July 17, 1973).

      . Low wage earners are defined as families with after-tax income of less than $5,000. James v. Strange, 407 U.S. 128 at 135 n. 16, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). In this case the record shows Gehrig as a laborer receiving $7,800 in wages during the calendar year 1971, the year for which the tax refund was paid. The record also shows him as married.

      . Cf. In re Aveni, 458 F.2d 972 (6th Cir.), cert. denied sub nom. Aveni v. Richman, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972), which applied a different rationale in its holding that accrued but unpaid wages io the extent not exempt from attachment under Ohio law passed to the trustee in bankruptcy under § 70(a) (5) of the Bankruptcy Act.

      . The Commission on Bankruptcy Laws of the United States has submitted to Congress a proposed revision of the Bankruptcy Act —the Bankruptcy Act of 1973—which would partially solve the problems posed in the instant case. This Act contains an exemption provision, which designates as other-exempt property, “cash, securities, and receivables, including unpaid personal earnings, accrued vacation pay, and income tax refund, to the aggregate value of not more than $500[.]” § 4-503 (c) (3) of the Bankruptcy Act of 1973 [Proposed], Report of the Commission on the Bankruptcy Laws of the United States, H.R.Doc. No. 93-137, 93rd Cong., 1st Sess. Part I at 172, Part II at 125 (1973).

      . In Re Cedor, 337 F.Supp. 1103 (N.D.Cal.), aff’d mem, sub nom. In Re James, 470 F.2d 996 (9th Cir. 1972), cert. denied sub nom. Walsh v. Cedor, 411 U.S. 973, 93 S.Ct. 2148, 36 L.Ed.2d 697 (1973).

      . In Re Kokoszka, 479 F.2d 990 (2d Cir. 1973), cert. granted sub nom. Kokoszka v. Belford, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (U.S. Dec. 11, 1973). See also Judge Larson’s carefully considered opinion in In Re Jones, 337 F.Supp. 620 (D.Minn.), appeal denied, Misc. No. 808 (8th Cir. 1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 719, 30 L.Ed.2d 732 (1972).


source: Caselaw Access Project

author: INGRAHAM, Circuit Judge:

license: Public Domain

text:
    Johnny SARTER, Plaintiff-Appellant, v. Lucille MAYS, Defendant-Appellee.
    No. 73-3013.
    United States Court of Appeals, Fifth Circuit.
    March 25, 1974.
    J. William Thomason, Bessemer, Ala., for plaintiff-appellant.
    Arthur D. Shores, Birmingham, Ala., for defendant-appellee.
    Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

The district court dismissed the appellant Johnny Sarter’s complaint because “the alleged transaction does not come within the protection of the Consumer Credit Protection Act . . .,” 15 U.S.C. § 1601 (1970). The question on appeal is the propriety of this dismissal.

On September 10, 1969, Sarter agreed with the appellee Lucille Mays to purchase real estate in Jefferson County, Alabama. The terms of the agreement were embodied in a “Lease Sale Contract,” which provided that the total purchase price of $2000 was to be paid by an initial payment of $100 plus $40 a month until paid in full. After Sarter had paid $700 toward the purchase price, he notified Mays of his intention to rescind the contract; Mays did not respond to the notice. Sarter sought in the district court rescission of the agreement and a judgment against defendant for the $700 paid toward the purchase price, but the court dismissed the action, apparently without a hearing or submission of briefs.

It has long been the rule that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). All that need be set forth in the complaint is a “ ‘short and plain statement of the claim’ that will give fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Id. at 47. Significantly, if the information set forth in the complaint does not adequately apprise the defendant of the nature of plaintiff’s claim, the court should allow the plaintiff to amend the pleadings to more plainly delineate the cause of action rather than dismiss the complaint. See C. Wright, Federal Practice & Procedure, § 1356, at 590-91 (1969).

Measured against these principles, the district court improperly dismissed Sarter’s complaint. The determination that the complaint did not fall within the scope of the Consumer Credit Protection Act, specifically 15 U.S.C. § 1635 authorizing rescission, depends on at least two factual questions that are unanswered in the complaint. First, the provisions of the Act apply only when the defendant is a “creditor,” defined by § 1602(f) of the Act as only those “who regularly extend, or arrange for the extension of, credit for which the payment of a finance charge is required .” Second, to fall within the rescission provision of the Act, the purchaser of real estate must have purchased property that “is used or is expected to be used as the principal residence of the customer. . . .”12 C.F.R. § 226.9 (a). Consequently, the district court could not accurately determine the applicability of the Consumer Credit Protection Act until it had additional facts to answer these questions. The complaint could have been more carefully drafted, but since it appears that plaintiff might prove a state of facts to support the claim, we reverse and remand with leave to the plaintiff to amend his complaint.

Reversed and remanded.

      . It is not entirely clear from the district court’s opinion whether the motion to dismiss was granted for failure to state a claim under Rule 12(b) (6) or under Rule 56 for summary judgment on the merits. Because there are no depositions, interrogatories or affidavits to consider in making a determination for summary judgment, presumably the court dismissed under Rule 12(b) (6) for failure to state a claim. In either event, our conclusion is the same. See G. Wright, Federal Practice & Procedure § 1356, at 597 (1969).


author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Isadore SHADLETSKY, also known as Buddy Shad, Defendant-Appellant.
    No. 73-2197
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 22, 1974.
    Arnold D. Levine, Tampa, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Manuel Menendez, Jr., Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
    Before GEWIN, GOLDBOLD and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   GODBOLD, Circuit Judge:

Appellant was convicted on two counts charging that he operated as a retail dealer in liquors and wilfully, knowingly and unlawfully failed to pay the special tax required by law, in violation of 26 U.S.C. § 5691(a). The offense is one requiring proof of specific intent.

The government offered in evidence over objection and as probative of knowledge or intent the record of an earlier state court conviction of selling liquor without a license, a misdemeanor which did not require proof of specific intent. The court admitted the evidence with an instruction limiting it as proffered, and gave another limiting instruction as part of the charge to the jury.

Admission into evidence of a prior offense as tending to show intent to commit the offense presently charged requires similarity but not precise identity of offenses. The similar offense must include the essential physical elements of the offense charged, and those physical elements, but not the mental ingredients, must be clearly shown by evidence that is “plain, clear and conclusive.” United States v. Broadway, 477 F.2d 991 (CA5, 1973). The necessary congruence of essential physical elements is present in the two offenses with which we are here concerned. Examining the contours of the two offenses, we see that the physical elements of the offense charged are, in the language of the indictment, dual in nature—-“carry [ing] on the business of a retail dealer in liquors” and “fail[ing] to pay the special tax.” The physical elements of the prior state offense were similarly dual—unlawful sale of an alcoholic beverage while not holding a license permitting such sale. The state offense could be committed by making a single and casual sale of liquor, but this possibility does not cause it to lack sufficient nexus to the carrying on of a retail business in liquor, which embraces the concept of repetitive sales of the same type of commodity. The second prong of the physical elements of the offense charged and prior offense is substantially if not wholly concurrent—in both cases failure to comply with a government-imposed condition precedent to carrying on a business activity, in the earlier case purchase of a license and in the present case payment of a special tax.

Having concluded that there is sufficient identity in the contours of the physical elements of the two offenses, we turn to the matter of sufficiency of proof. This circuit committed itself in Broadway to the rule that the actual existence, in the prior offense, of the congruent physical elements must be plain, clear and conclusive and that proof of a vague and uncertain character is not permissible. Id. at 995. Proof of the mental ingredients of the prior offense need not be shown, because the significance of the prior conduct is that it tends to prove a pattern of criminal conduct pointing directly toward the act charged, from which the trier of fact can infer circumstantially the intent and knowledge with which the act charged was committed. Id. at 994. In Broadway the proof of the prior offense did not meet the standard of clarity and conclusiveness. In the instant case there is no question of sufficiency of the proof that the physical elements were present in the prior offense. The proof consisted of a prior conviction on a plea of guilty by which defendant judicially admitted all elements of the offense.

It was not necessary as a prerequisite to admissibility of the record of the state court conviction, which was valid and regular upon its face, to supplement that record by extrinsic evidence establishing that the guilty plea met all constitutional standards of voluntariness. Pretermitting whether involuntariness of the plea, if proved, would require reversal where the prior conviction was used as here, appellant’s argument on this point seeks to transmute the right of a defendant to collaterally attack a guilty plea into an affirmative obligation on the prosecution to establish as a prerequisite to admissibility elements relating to voluntariness that might on a proper collateral attack be the subject of inquiry.

Affirmed.

      . 26 U.S.C. § 5121 requires every retail dealer in liquors to pay a tax of $54 a year.

      . In note 4, the court in Broadway distinguished United States v. Harrison, 461 F.2d 1127 (CA5, 1972), which, like Broadway was an interstate transportation of forged securities case. The court pointed out that in Harrison the proof of the physical elements of the prior offense—introduction of forged securities into the stream of commerce by actually passing them—had been sufficient.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Julius J. GULLEDGE and Carl Hathcock, Defendants-Appellants.
    No. 73-3645
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 21, 1974.
    Calvin A. Hartmann, Houston, Tex. (Court-appointed), for Hathcock.
    Gordon J. Kroll, Houston, Tex. (Court-appointed), for Gulledge.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellants separately argue that the District Court erred in accepting their guilty pleas by failing to make a full determination of the factual basis for their pleas to charges of conspiracy to counterfeit twenty-dollar bills in violation of 18 U.S.C.A. § 371.

There might be some merit to appellants’ argument that at the time the pleas were accepted, on September 24, 1973, the Court relied only on the formal charge and each defendant’s statement in a procedure which has previously been found wanting under Rule 11, Federal Rules of Criminal Procedure. United States v. White, 483 F.2d 71 (5th Cir. 1973) ; United States v. Frontero, 452 F.2d 406, 416 (5th Cir. 1971); see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

At the time of sentencing on October 29, 1973, however, upon inquiry from the Court, the District Attorney recited the facts and evidence in a procedure that we have held to fully comply with Rule 11. United States v. Bethany, 489 F.2d 91 (5th Cir. 1974). Warren v. United States, 488 F.2d 862 (5th Cir. 1974) . The defendants were given an opportunity at that time to withdraw their pleas, but declined to do so. A few days later on November 2, 1973, the judgment was entered.

The record shows, therefore, that prior to entering judgment, the Court satisfied itself as to the factual basis for the plea by an acceptable method in compliance with Rule 11.

Rule 11 provides that “the Court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

Affirmed.


author: EDWARDS, Circuit Judge. McCREE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William “Buddy” LESTER, Defendant-Appellant.
    No. 73-1289.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 16, 1973.
    Decided Feb. 11, 1974.
    Garred 0. Cline (Court Appointed), Pikeville, Ky., on brief for appellant.
    William D. Kirkland, Asst. U. S. Atty., for appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   EDWARDS, Circuit Judge.

Appellant was convicted after jury trial on three counts of operating an unregistered still, in violation of 26 U.S.C. §§ 5173(a), 5179(a) and 5222(a) (1970). On his appeal he invokes a long-standing rule of this Circuit that while prior inconsistent statements of a witness may be accepted to rebut that witness’ testimony, and to impeach his credibility before the court, such prior inconsistent statements cannot be employed as substantive proof of a criminal offense. United States v. LaRose, 459 F.2d 361 (6th Cir. 1972); United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970); United States v. Classen, 424 F.2d 494 (6th Cir. 1970); United States v. Crowder, 346 F.2d 1 (6th Cir. 1965); United States v. Barnes, 319 F.2d 290 (6th Cir. 1963).

In the instant ease, after a raid on a house where a still was found to be in operation, and the arrest of the owner Bevins, Bevins was called as a government witness against appellant who was a codefendant. At trial Bevins and Bevins’ wife testified that Lester had been at the house and had fled at the approach of the officers, but that he had not been engaged in operating the still. A Treasury Agent was then allowed to take the stand and testify that both Bevins and his wife previously had told him that appellant Lester had not only been at the house, but had been engaged in helping in the operation of the still. No objection was made to this evidence, but, of course, it was admissible for purposes of impeachment of Bevins and Bevins’ wife.

The District Judge, however, in instructing the jury, did not instruct the jury that this testimony could only be used for impeachment of Bevins and his wife, and not as substantive proof of Lester’s guilt. The record does not disclose any other direct evidence that appellant Lester operated the still.

Appellee, the United States Government, through the United States Attorney for the Eastern District of Kentucky, concedes that if we follow our circuit’s long-standing rule, as set forth in the LaRose, Crowder and Barnes cases cited above, we must reverse this conviction. The government earnestly urges that we reconsider the rule and adopt the rationale of certain text writers and other circuits. 3 J. Wigmore, Evidence § 1018 (3d ed. 1940); Model Code of Evidence rule 503(b) (1942); C. McCormick, Evidence § 39 (1954); Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand.L. Rev. 741 (1961); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 192-96 (1948). This we decline to do. Much as we respect the views of the authorities cited to us, we are repelled by in-grafting on the American system of justice a rule which would allow a person to be convicted of a felony on the repetition of an inculpatory statement made by a third party concerning a person charged with crime, which statement was not under oath, not in the presence of the person charged, and was not subject to confrontation and cross-examination at the time when it was made. We' do not think that the deficiencies in the nature of the proof tendered are cured by the fact that the third party whose accusatory statement is relied upon by the prosecution is called to the witness stand at the trial of the defendant and there subjected to confrontation and cross-examination.

The leading case on this subject (which has never been overruled) is Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). There the Supreme Court held that prior inconsistent statements were admissible to impeach, “But they certainly would not be admissible in any criminal case as substantive evidence.” Bridges v. Wixon, supra at 153, 65 S.Ct. at 1452.

In its brief and oral argument, the United States Attorney argued that this court should regard itself as bound by the holding of the United States Supreme Court in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). On the contrary, California v. Green did not decide the issue with which we are presently concerned at all. The Green case dealt with the federal constitutionality of a state statute making admissible as substantive evidence a prior inconsistent statement of a third party concerning a person charged with crime. It held that the Federal Constitution did not bar such a statute. But the opinion for the court expressly noted that it was not deciding whether such a rule accorded with federal evidentiary rules and cited cases which hold the contrary. See California v. Green, 399 U.S. 149, 163-164 n.15, 90 S.Ct. 1930 (1970).

In Bruton v. United States, the Court stated in a lengthy footnote:

“We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U.S. 440 [69 S.Ct. 716, 93 L.Ed. 790]; Fiswick v. United States, 329 U.S. 211 [67 S.Ct. 224, 91 L.Ed. 196], the problem arising only because the statement was (but for the violation of Westover, supra, n. 1 [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694]) admissible against the declarant Evans. See C. McCormick, Evidence § 239 (1954); 4 J. Wigmore, Evidence §§ 1048-1049 (3d ed. 1940); Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L.J. 355 (1921). See generally Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions, 24 U.Chi.L.Rev. 710 (1957); Note, Criminal Conspiracy, 72 Harv.L.Rev. 920, 984-990 (1959). There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. See Pointer v. Texas, 380 U. S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923]; Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255]; Mattox v. United States, 156 U.S. 237 [15 S.Ct. 337, 39 L.Ed. 409]. See generally McCormick, supra, § 224; 5 Wigmore, supra, §§ 1362-1365, 1397; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948).” Bruton v. United States, 391 U.S. 123, 128 n. 3, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (1968).

The most recent federal consideration of this problem has been in the course of formulation of the Proposed Federal Rules of Evidence drafted by the Committee on Rules of the United States Judicial Conference and transmitted to Congress on November 20, 1972. The Proposed Rules as drafted would have the effect of rendering prior inconsistent statements of a witness admissible as substantive evidence:

(d) Statements which are not hearsay. A statement is not hearsay if—
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, . . .. Proposed Federal Rules of Evidence 801(d)(1)(A), 56 F.R.D. 183, 293 (1972).

We note, however, that H.R. 5463 introduced by the Subcommittee on Criminal Justice of the House Judiciary Committee as a supplement to the Proposed Federal Rules of Evidence contains an amendment to 801(d)(1)(A) (printed below in italics) which would, if adopted, serve to codify the long-standing rule of evidence of this circuit.

“(d) Statements which are not hearsay.—A statement is not hearsay if—
(1) Prior statement by witness. —The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him: Provided, That a prior inconsistent statement under clause (A) shall not be admissible as proof of the facts stated unless it was given under oath and subject to the penalty of perjury at a trial or hearing or in a deposition or before a grand jury; or . . . .”
Rules of Evidence proposed by Subcommittee on Criminal Justice of House Judiciary Committee 801(d) (1), reprinted in 42 U.S.L.W. 1009, Special Supplement, at 10 (July 17, 1973).

We now reiterate that prior inconsistent statements of a witness at a criminal trial are admissible only for purposes of impeachment and are not admissible as substantive proof of guilt of the defendant.

Under this Circuit’s established rule, it is obvious that the District Court’s failure to advise the jury that Bevins’ prior inconsistent statement could be received only for impeachment purposes and not for substantive proof of appellant Lester’s crime was plain error affecting substantial rights. Fed. R.Crim.P. 52(b).

In United States v. Lipscomb this court stated:

“We are of the opinion that the failure of the trial judge to limit through cautionary instructions the jury’s consideration of these extra-judicial statements to impeachment purposes requires reversal. Although such an instruction was not specifically requested, it has generally been held that failure to give it amounts to plain error where, as here, the government’s case is weak and the statement is extremely damaging. Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967); Newman v. United States, 331 F.2d ,968 (8th Cir. 1964); Upham v. United States, 328 F.2d 661 (5th Cir. 1964). Also see Benson v. United States, 402 F.2d 576 (9th Cir. 1968).” United States v. Lipscomb, 425 F.2d 226, 227 (6th Cir. 1970).

Our review of this record and the paucity of evidence bearing directly upon whether or not appellant Lester operated the still, convinces us that we cannot properly affirm this conviction on the ground that the error was harmless. See Fed.R.Crim.P. 52(a).

The judgment of the District Court is vacated and the ease is remanded to the District Court for new trial.

McCREE, Circuit Judge

(dissenting).

I respectfully dissent. Because no objection was made to the introduction of the challenged testimony, I find it unnecessary to consider the government’s suggestion that our circuit depart from the orthodox rule that prior inconsistent statements of a witness may be used only to discredit a witness’ testimony and not as substantive evidence. In my view, the question considered in the majority opinion is not presented in this case.

The record reveals that no objection whatsoever was made to the introduction of this testimony as hearsay. The United States Supreme Court has observed that “when evidence of [hearsay] character is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible.” Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912). See also Rowland v. St. Louis & S. F. R. R. Co., 244 U.S. 106, 108, 37 S.Ct. 577, 61 L.Ed. 1022 (1917); Opp Cotton Mills v. Administrator, 312 U.S. 126, 155, 61 S.Ct. 524, 85 L.Ed. 624 (1941). See generally 1 Wigmore, Evidence § 18 (3d ed. 1940); C. McCormick, Evidence § 52 (1954). Accordingly, in the absence of any objection, the questioned testimony was competent not only to impeach the declarant who denied having said it, but also to prove the assertions contained therein, and no cautionary instruction was required.

The proper rule to be derived from Lipscomb is this. If testimony of a prior inconsistent statement is admitted to impeach the declarant, upon objection that it is hearsay, the judge, even if not requested, must give a cautionary instruction advising the jury of its restricted use. It is appropriate to require this action of a trial judge, once there is an objection, because the party objecting has not waived his right that the jury shall not consider the hearsay assertion for its truth. But I believe we should not approve a rule that wo.uld require a judge, sua sponte, to give a cautionary instruction whenever a prior extra-judicial inconsistent statement inculpating a defendant is proffered in the absence of either an objection to its admission or a request to restrict its use.

Under my view of this case, no error was committed by the trial judge, and, accordingly, I do not reach the question of “harmless error” determined by the majority. I observe, however, that although the majority concludes that the “error” was not harmless, I would determine that there is substantial independent circumstantial evidence indicating that appellant was guilty of the crime charged.

      . We do not have occasion in the context of this case to consider whether the fact that a prior statement was made under oath in a formal proceeding would constitute an exception to this rule.

      . Defendant also contends that his Fifth Amendment rights of confrontation and cross-examination were violated because the government did not recall either Bevins or his wife after the Treasury Agent Caudill testified as to their prior inconsistent statements. This contention is without merit, since the defendant had ample opportunity to cross-examine, each of these witnesses after they had testified that they had not made these statements. See Nelson v. O’Neil, 402 U.S. 622, 626, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). In Nelson the Court also stated that admission of a prior inconsistent out-of-court hearsay statement without cautionary instruction would be reversible error under state law, thus apparently holding the majority rule regarding prior inconsistent statements to be permissible.


author: PELL, Circuit Judge.

text:
    Uldine KURI, on behalf of herself, her minor child, Angela, and all others similarly situated, et al., Plaintiffs-Appellants. v. Joel EDELMAN, Individually, and in his capacity as Director of the Illinois Department of Public Aid, Defendant-Appellee.
    No. 74-1093.
    United States Court of Appeals, Seventh Circuit.
    Feb. 11, 1974.
    Robert E. Lehrer, Legal Asst. Foundation of Chicago, Chicago, Ill., Michael F. Lefkow, Chicago Ill., for plaintiffs-appellants.
    William J. Scott, Atty. Gen., Chicago, Ill., for defendant-appellee.
    Before CUMMINGS, PELL, and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

The State of Illinois participates in the' federally funded Aid To Families with Dependent Children (AFDC) program established under Title IV-A of the Social Security Act, 42 U.S.C. § 601 et seq. The several plaintiffs filed their action in the district court on December 18, 1973, alleging that the defendant Joel Edelman, individually and in his capacity as Director of the Illinois Department of Public Aid, was implementing a program of suspending AFDC recipients from assistance in violation of their rights under 42 U.S.C. § 601 et seq. (Social Security Act, § 401 et seq.) and 42 U.S.C. § 1983 (Civil Rights Act), the Supremacy Clause, and the Fourteenth Amendment. Plaintiffs, on behalf of themselves and members of their class (recipients of assistance), sought declaratory and injunctive relief restraining implementation of the alleged illegal program. A hearing was held in the district court on January 30, 1974, at the conclusion of which the district court denied a preliminary injunction. This appeal followed. The plaintiffs filed a motion for an injunction pending appeal, which was denied by the district court, and the case is presently before this court on the motion filed here by plaintiffs for an injunction pending the appeal.

Plaintiffs contend that benefit checks will be withheld beginning February 1, 1974, from plaintiffs and members of their class, and that an injunction pending appeal is necessary to preserve the status quo and effective appellate review of the denial of the preliminary injunction by the district court.

As background for consideration of the present matter, on or about November 8, 1973, the defendant instituted a new Illinois Department of Public Aid income reporting program. The apparent reason for this program was because of continuing obligation on the defendant to provide the assistance program only to those eligible, which in turn involves the existence of need and dependency.

An IBM card DPA 43a, with an accompanying information notice, was mailed to the “grantee relative” of each Illinois family receiving AFDC benefits. The card called for a report on income and the notice advised that the executed form must be returned to Springfield within 15 days to continue eligibility for Aid to Dependent Children.

As the matter is put by the defendant, the 43a form is not intended itself to be a guideline or instrument for eligibility for public assistance, “but is merely intended and used by the Department to be an informational tool so as to afford the defendant an opportunity to conform with federal guidelines which require the individual states to remove those people from the public assistance rolls who are ineligible for said assistance.” Further, we note the assertion of the defendant, which does not appear to be denied, that the defendant’s forms and program have been stated by the Department of Health, Education and Welfare not to be in conflict with federal regulations.

Suspension notices were mailed to the relatives if the Springfield Office of the Illinois Department did not receive the form 43a within the specified time period.

The suspension notice, which was a followup of the original request, reads as follows:

“This is to inform you that the Department of Public Aid, Springfield, will suspend your assistance/food stamp benefits under the Aid to Families with Dependent Children program because you failed to return the Income Report Form, DPA 43a, mailed to you on
“The Department of Public Aid will not take action to suspend your assistance/food stamp benefits if you will return Illinois Department of Public Aid Income Report Form DPA 43a in the enclosed envelope within 15 days of the date of this notice. If you have lost the card, complete the reverse side of this Notice and return this Notice.
“If you believe our intended action is wrong, you may, if you wish, meet with a representative of the County Department/District Office to be further informed about our reasons for taking this action concerning your assistance/food stamp benefits. You will be given the opportunity to present any information or evidence which you believe might affect this decision. The meeting will be informal. If you wish, you may bring another person with you to assist you or to present information or evidence for you.
“Your right to appeal the Illinois Department of Public Aid’s action, whether or not you meet with its representative, is not affected by your decision. At any time within 60 days after the date of this Notice, you have the right to appeal for a fair hearing to the Illinois Department of Public Aid. However, your assistance benefits may be continued at its present level if you appeal within 15 days of the date this Notice was mailed. Any County Department/District Office will provide you with the appeal form and will assist you in its completion if you wish.”

It is asserted in the motion before the court that some 31,000 families are involved. However, it also appears in the file that some 86% of the recipients of the original notice have now complied with the requirement of furnishing the information on other income. The principal thrust of the motion is that the form is vague and not understandable, which would seem to be belied by the substantial return, and that many of the recipients understand only the Spanish language and therefore were unable to respond.

The English language has been uniformly used at all times in connection with all correspondence and forms sent to welfare assistance recipients. The suspension notice form, while in English, makes it clear that informal procedures will be engaged in if the recipient calls at a local office for the purpose of restoring families to the receiving rolls if eligible.

While the complaint is made that many of the recipients only read and comprehend the Spanish language, there is no showing that this is the actual cause of recipients not returning the requested information. As far as we can tell from the record, the most significant factor for not returning the information may have been because the non-returners realized that other income available to them would preclude the payment of assistance. Nor is there any showing that there are not other language groups who may be unable to comprehend English. In sum, the matter of the reason for some recipients not complying with either of the two requests lies in the realm of conjecture.

As the defendant points out, the information requested is not vague but is similar to that the recipients had to furnish when they originally requested assistance under the program.

The plaintiffs rely heavily on a case which had not been decided when they filed their original complaint. Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). We do not find Lau apposite to the problem here involved. That case was concerned with unequal educational opportunities under the Civil Rights Act of 1964 with particular reference to Chinese students in the San Francisco school system who do not speak English. The plaintiffs there did not necessarily seek a remedy that instructions be given in Chinese but only that as the school system presently operated they were denied a meaningful opportunity to participate in it. Petitioners only requested that the Board of Education be directed to apply its expertise to the problem and rectify the situation. The judgment below was reversed and remanded for the purpose of fashioning appropriate relief.

Here the ultimate purpose is to require notices to be sent out in the Spanish language without regard to the fact that there are presently informal procedures available in Spanish speaking areas which will enable those who cannot speak English nevertheless to comply-

Plaintiffs also cite Puerto Rican Organization for Political Action v. Kusper, 490 F.2d 575 (7th Cir. 1973). However, that case dealt not with Spanish speaking people per se but with citizens of the United States by virtue of their birth in Puerto Rico. These people were educated in Puerto Rican public schools where the language of instruction is Spanish. The matter of Puerto Ricans voting had been the subject of Congressional attention, 42 U.S.C. § 1973b(e)(2). The case is of no help to plaintiffs in the present case.

The case brought to our attention, which is closest to the present ease, is Guerrero v. Carleson, 9 Cal.3d 808, 109 Cal.Rptr. 201, 512 P.2d 833 (Cal.1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 883, 38 L.Ed.2d 762 (1974). In that case -the California Supreme Court thoroughly analyzed the present problem and sustained the denial of a preliminary injunction in a situation comparable to the case at bar.

The relief requested in this court at the present time has been termed an extraordinary remedy. Belcher v. Birmingham Trust National Bank, 395 F.2d 685, 686 (5th Cir. 1968). One of the primary considerations for this court’s present determinations must be whether the appellants have made a strong showing that they are likely to prevail on the merits of their appeal, which in this case is from the denial of a preliminary injunction. Miltenberger v. Chesapeake & Ohio Railway, 450 F.2d 971, 974 (4th Cir. 1971).

The procedures followed by the defendant present a strong case of advance notice with reasonable opportunity for recipients to avoid having their assistance terminated. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). We have no inclination to say that the state is not entitled to impose reasonable requirements on benefit recipients to determine whether they are on a continuing basis entitled to such benefits because of need and dependency. Indeed, even without receipt of a 43a form, recipients are under a statutory continuing duty to report changes in circumstances. Ill.Rev.Stat. ch. 23, § 11-19.

On the record before us, we do not find a basis for granting the extraordinary relief requested, the apparent effect of which would be to require as a mandatory matter the appellee Edelman to disburse some 30,000 checks under the AFDC, as to which there is no clear showing that there is legal entitlement in the proposed recipients.

Accordingly, the motion for injunction pending appeal is denied.

It is so ordered.

      . In an amended complaint plaintiffs proposed to file, it appears that the Department had mailed the 43a form to the heads of 220,000 families in Illinois. The estimated number of those recipients who have failed to report, as gleaned from pleadings and briefs of the plaintiffs, ranges from 16,000 to 38,000 families. The plaintiffs seem to have settled on 31,000 families in the present motion.

      . The district court in denying a preliminary injunction did give consideration to Lau.


author: CELEBREZZE, Circuit Judge. EDWARDS, Circuit Judge

text:
    Millard Robert BEASLEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1351.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 15, 1973.
    Decided Feb. 1, 1974.

      Edward M. Keller, Detroit, Mich. (Court-appointed), for petitioner-appellant.
    Barry Blyveis, Dept. of Justice, Washington, D. C., for respondent-appellee; Ralph B. Guy, Jr., U. S. Atty., Dept. of Justice, Washington, D. C., Fred M. Mester, Asst. U. S. Atty., Chief, Civil Div., Detroit, Mich., on brief.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   CELEBREZZE, Circuit Judge.

In a non-jury trial of February 20, 1969, a Federal District Court convicted Petitioner of attempted armed bank robbery. A direct appeal, raising numerous points was dismissed by this Court without oral hearing. United States v. Beasley, 438 F.2d 1279 (6th Cir. 1971). A petition for rehearing was denied. Petitioner then filed a Motion to Vacate Sentence and Judgment in the District Court, claiming ineffective assistance of his appointed counsel before and during trial and on appeal. He further contended unlawful government withholding of evidence at trial. The District Court held that Petitioner had not been denied the Sixth Amendment right to the effective assistance of counsel before and during trial because his attorney’s performance had not rendered the trial a “farce and a mockery, shocking to the Court,” although it found that Petitioner had been afforded “incompetent and ineffective representation.” The District Court held that Petitioner had been denied the Sixth Amendment’s protection on his direct appeal, because his attorney had failed to cite an important recent case which Petitioner himself had brought to his attorney’s attention. It did not grant relief, however, because it was unsure whether this Court would have granted Petitioner’s direct appeal if it had been apprised of the citation in question at that time. Finally, the District Court held that although the Government had improperly withheld certain evidence from the defense at trial, the evidence was not material.

Petitioner appeals on all three points. On the third point, the District Court’s conclusion that the improperly withheld evidence was not material is not clearly erroneous. While we reaffirm our conclusion in United States v. Young, 426 F.2d 93, 94 (6th Cir. 1970), that “knowing suppression by the prosecution of exonerating evidence renders a conviction constitutionally infirm,” and condemn the Government’s failure to make the withheld evidence available to the defense, we cannot say that the withholding of evidence in this case renders Petitioner’s conviction constitutionally defective. The evidence was not exonerating.

Petitioner’s basic argument is that he was denied the effective assistance of counsel, before and during trial and on appeal. If Petitioner was convicted without the effective assistance of counsel required under the Sixth Amendment as interpreted by the courts, he is entitled to relief under 28 U.S.C. § 2255. The Sixth Amendment claim must, of course, stand on its own merits. It should not be a mere disguise for ques-. tions disposed of on direct appeal. Van Buskirk v. United States, 343 F.2d 158 (6th Cir. 1965).

In arguing that he was denied the effective assistance of counsel on appeal, Petitioner is, in essence, rearguing the sufficiency of identification evidence. In deciding his direct appeal, we wrote:

[T]he Appellant was identified as the holdup man by his latent palm print, which was discovered on the note he passed into the teller’s window, and by the stylized lettering of the note, which could have been stenciled with a lettering guide ruler to which the Appellant had access. This evidence was sufficient to establish his identity beyond a reasonable doubt. United States v. Beasley, 438 F.2d 1279, 1281 (6th Cir. 1971).

We might have added that one res gestae witness testified that Petitioner “resembled” the attempted robber and that no rebuttal evidence was presented as to identification. The additional evidence and the fact that Petitioner’s fingerprints could not plausibly have been placed on the demand notes in an innocent manner distinguish this case from United States v. Collon, the case defense counsel failed to cite in his appellate brief. In United States v. Collon, 426 F.2d 939 (6th Cir. 1970), fingerprint evidence was the sole reliable evidence linking one defendant to the crime, and the fingerprints could have been innocently placed on the document in question in many plausible ways. Though the Collon case might have helped Petitioner’s appeal, it is clearly distinguishable. We find no prejudicially ineffective assistance of counsel because of its absence.

Turning finally to the claim of ineffective assistance of counsel before and during trial, the question we are faced with is how ineffective and incompetent an attorney’s representation of a criminal defendant must be before an accused’s Sixth Amendment right is violated. The District Court found that Petitioner’s attorney had been incompetent and ineffective in several respects.

First, Counsel called as the sole defense witness (except for Petitioner) an FBI agent described by the District Court as:

“a man whom petitioner has advised counsel, prior to trial, is ‘out to get me;’ a man who is not a res gestae witness; a man who is employed by the opposing party to the suit, and was not an agent on the case; a man whose only knowledge of petitioner’s modus operandi came from information supplied by petitioner himself, a man whom the attorney, himself, has called a liar and perjurer on the witness stand only two months before trial; a man who is called as a witness without having been interviewed by counsel to discover what testimony he could give; a man who has interviewed petitioner and taken a statement, damaging to petitioner, which counsel has just read before calling this witness.”

Calling this witness made sense only in the context of a bizarre defense strategy which the District Court characterized as “highly implausible.” Defense counsel’s only conceivable rationale for calling this antagonistic witness was to embarrass the Government by showing how zealous this FBI agent had been and to support the theory that a “pro” like Petitioner would not have pulled an amateurish operation like the attempted robbery in this ease. The trial judge gave no credence to this strange defense reasoning. Calling the FBI agent, furthermore, allowed the prosecution to introduce damaging evidence of a past criminal record. The witness was called over Petitioner’s protests to his attorney. His testimony did nothing but support Petitioner’s guilt and criticize his character. The witness testified without advance questioning by defense counsel as to what he might say. The District Court found that it was “incompetency” to call this witness.

Second, the District Court found defense counsel incompetent not to have informed Petitioner that the trial judge had read a prejudicial statement about him that could not have been introduced at trial. Counsel advised Petitioner to waive a jury trial because he had expert fingerprint testimony that a jury would not understand and because he was too ill to withstand the rigors of a jury trial. Petitioner thus waived his right to a juyy in ignorance of the fact that the judge who would hear his case had read a damaging FBI report.

Third, although the trial judge ordered the Government to-pay for an independent test of the fingerprint evidence, counsel never requested one. . Evidence not disclosed until October 11, 1972, indicates that an independent test would have revealed a defect in the Government’s crucial fingerprint evidence. At trial the Government introduced a corner of one of the two demand notes the attempted robber had handed to the bank teller, which contained six prints identified as Petitioner’s. A Detroit Police expert testified on October 11, 1972, that tests run one day after the attempted robbery disclosed only two partial prints, neither of which was Petitioner’s. Another print, not Petitioner’s, was found on the fake “bomb” used in the attempted robbery. This evidence, never disclosed to Petitioner, would have tended to rebut the Government’s fingerprint evidence. The man who could have disclosed this was called to the courtroom by defense counsel but was never called to the stand. Thus, although counsel had urged Petitioner to waive a jury trial because of- complicated fingerprint testimony, he never used the favorable rebuttal evidence available and left the Government’s identification of Petitioner unchallenged.

Fourth, there were several res gestae witnesses who were never called to testify, though they would have testified that they could not identify petitioner as the attempted robber. Because their testimony would not have aided the prosecution, the Government did not summon them. Defense counsel did not call them because he was under the mistaken belief that it was the Government’s responsibility to subpoena all res gestae witnesses, the practice in Michigan state courts but not in federal courts.

Fifth, defense counsel was “suffering from pain shortly before the trial,” which the District Court cited as an additional circumstance to consider.

Sixth, defense counsel failed to interview any res gestae witnesses before trial other than the one who gave mildly favorable testimony for the prosecution.

Seventh,_ counsel conducted “no more than a cursory investigation of the facts prior to trial.” An alibi witness whom Petitioner had asked counsel to interview died before trial and without having been contacted by counsel, thus depriving Petitioner of his testimony in any form.

In concluding that despite these instances of incompetence and ineffectiveness Petitioner was not deprived of his Sixth Amendment right to the effective assistance of counsel, the District Court found that these instances had not rendered the trial “a farce and a mockery, shocking to the Court.” We are asked to determine whether the “farce and mockery” phrase is a mere metaphorical gloss, a conclusory description, or a constitutional criterion which would require a denial of relief to a defendant whose attorney was ineffective and incompetent.

Phrases often take on a life of their own. Divorced from the context in which they were born, they spawn new results based on interpretations of themselves, rather than on a close scrutiny of the actual holding for which they were a description. Each case must stand on its own merits, and our application of constitutional rules must always relate back to the language and policies of the Constitution. The phrase “farce and mockery” has no obvious intrinsic meaning. What may appear a “farce” to one court may seem a humdrum proceeding to another. The meaning of the Sixth Amendment does not, of course, vary with the sensibilities and subjective judgments of various courts. The law demands objective explanation, so as to ensure the even dispensation of justice.

In this case the District Court found that Petitioner had been denied the competent and effective assistance of counsel in many respects. Whether this denial constituted a violation of Petitioner’s Sixth Amendment right depends on the meaning of effective assistance of counsel.

The Sixth Amendment guarantees that a criminal defendant shall enjoy the right “to have the Assistance of Counsel for his defence.” This guarantee was first interpreted by the Supreme Court to mean the effective assistance of counsel in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Justice Sutherland, Powell’s author, went beyond a formal requirement that counsel be appointed, holding that the trial judge’s failure “to make an effective appointment of counsel” had resulted in the “denial of effective and substantial aid. . . . [Defendants were not accorded the right of counsel in any substantial sense.” 287 U.S. at 53, 71, 53 S.Ct. at 65.

Eight years later, speaking through Justice Black, the Court held that “The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Resting its holding on the Fourteenth Amendment, since a state defendant was involved, the Court held that the trial Court’s denial of a continuance requested by appointed counsel had not deprived the defendant of the effective assistance of counsel. On the facts of the case, “His appointed counsel . . . have performed their ‘full duty intelligently and well.’ ” 308 U.S. at 450, 60 S.Ct. at 324. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Court enforced the implication of Avery that an inadequate performance by counsel would render a conviction void. Basing its holding on the Sixth Amendment, since a federal defendant was involved, the Glasser court overturned a conviction of a defendant whose attorney was retained by a co-defendant with a potentially inconsistent defense.

Our examination of the record leads to the conclusion that [the attorney’s] representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. 315 U.S. at 76, 62 S.Ct. at 468.

The Court emphasized the fundamental nature of the constitutional requirement of effective assistance of counsel by refusing to allow inquiry into the question of harmless error. “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 315 U.S. at 76, 62 S.Ct. at 467.

Three years later, in White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945), the Supreme Court held that a prima facie case for habeas corpus relief was stated where a state prisoner alleged that his appointed counsel failed to confer with him until the day of the trial, “refused to do anything for petitioner unless petitioner had some money,” and ref used-to call a witness petitioner had requested him to call.

A decade later, in Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955), the Court affirmed a holding that a defendant had not been denied the effective representation of counsel merely because a trial lawyer was elderly and ill. Based on the lawyer’s extensive criminal law background and other facts, the court found “no evidence of incompetence” and rejected the contention that a delay in seeking a grand jury indictment, standing alone, was condemning. “The delay might be considered sound trial strategy, particularly since the codefendant could not be found. We cannot infer lack of effective counsel from this circumstance alone.” 350 U.S. at 101, 76 S.Ct. at 164. The Supreme Court’s conclusion leaves no doubt that evidence of incompetence as such and basic procedural errors should be considered in determining whether a defendant’s assistance of counsel has been constitutionally adequate. The Supreme Court made this precedentially clear in Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955), a companion case to Michel v. Louisiana. There the Supreme Court held that “The effective assistance of counsel . . . is a constitutional requirement of due process which no member of the Union may disregard.” 350 U.S. at 90, 76 S.Ct. at 171. It determined that Reece was denied this right by not having an attorney in time to object to the racial composition of the grand jury which indicted him. The Court’s reasoning leaves no doubt that this right would have been denied if an attorney had been appointed for Reece, but he or she had not objected to the all-white grand jury composition before the grand jury had returned its indictment.

Most recently, in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the Supreme Court stated that “It has long been recognized that the right to counsel is the right to the effective assistance of counsel.” It held that the advice rendered by an attorney as to whether a confession would be admissible in evidence must be “within the range of competence demanded of attorneys in criminal cases.” 397 U.S. at 771, 90 S.Ct. at 1449. “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and . . . judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.” 397 U.S. at 771, 90 S.Ct. at 1449.

In view of the Supreme Court’s holdings, we must agree with the Courts of Appeals for the Fifth and District of Columbia Circuits, that the “farce and mockery” test should be abandoned as a meaningful standard for testing Sixth Amendment claims. West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973); Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).

The District of Columbia Circuit Court’s rejection of this subjective standard is especially significant because it was that Circuit which established it. In Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667 (1945), cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945), the District of Columbia Circuit first concluded that for a petitioner to secure habeas relief “on the sole ground that counsel . . . acted incompetently and negligently during the proceedings,” “It must be shown that the proceedings were a farce and a mockery of justice,” citing Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923). The Diggs Court based this result on its view that the Sixth Amendment guarantees no more than the formal appointment of competent counsel. Thus, the federal prisoner could ground his petition only on the Fifth Amendment, which guarantees a fair trial. . It was to the guarantee of a fair trial, not the Sixth Amendment, that the “farce and mockery” standard was applied.

In subsequent holdings, however, courts held that the “farce and mockery” standard was appropriate for reviewing Sixth Amendment claims. See Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958); Hester v. United States, 303 F.2d 47 (10th Cir.), cert. denied, 371 U.S. 847, 83 S.Ct. 80, 9 L.Ed.2d 82 (1962) ; United States ex rel. Feeley v. Ragen, 166 F.2d 976 (7th Cir. 1948); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965).

In view of Supreme Court rulings subsequent to Diggs v. Welch, which explicitly rejected the Diggs Court’s premise that the Sixth Amendment guarantees nothing more than the appointment of counsel, the “farce and mockery” standard came under increasing attack from prominent commentators. In 1967 the District of Columbia Circuit Court overruled its Diggs holding and rejected the “farce and mockery" standard, in Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967). As it reaffirmed in Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970):

The “farce and mockery” standard derives from some older doctrine on the content of the due process clause of the Fifth Amendment.
That standard is no longer valid as such but exists in the law only as a metaphor that the defendant has a heavy burden to show requisite unfairness. .
What is involved here is the Sixth Amendment. The Sixth Amendment has overlapping but more stringent standards than the Fifth Amendment as is clear from other contexts. Compare, for example, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) with Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).' The appropriate standard for ineffective assistance of counsel, set forth in Bruce, supra, is whether gross incompetence blotted out the essence of a substantial defense.

The Fifth Circuit came to the same conclusion in West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), where it rejected Williams v. Beto and reaffirmed its holding in MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960) :

We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. (Emphasis by the Court)

In reviewing this Circuit’s treatment of “effective assistance of counsel,” we have found numerous assertions of the “farce and mockery” standard, although we have found an equal number of decisions resting on more objective tests. In Norman v. United States, 100 F.2d 905 (6th Cir.), cert. denied, 306 U.S. 660, 59 S.Ct. 790, 83 L.Ed. 1057 (1939), the first case in which this Circuit treated a claim of ineffective assistance of counsel, the Court found no prejudice because of counsel’s failure to object to certain evidence. It stated:

There are state decisions which hold that a new trial in a criminal case should be granted where the negligence of counsel is great or his mistake of law so serious as to deprive the defendant of the benefit of important and material evidence which might reasonably cause the jury to return a different verdict, [citations omitted] They do not reach this case. 100 F.2d at 906.

In Anderson v. Bannan, 250 F.2d 654, 655 (6th Cir. 1958), this Circuit held that “To justify a writ of habeas corpus on the ground of incompetency of counsel, an extreme case must be disclosed, considerably more than inadequacy of representation by counsel of one’s own choosing,” citing cases from three other circuits. Holding that the state prisoner had not made out a sufficient due process claim and finding no substantial prejudice because of counsel’s alleged errors, the Court affirmed the denial of habeas relief.

In O'Malley v. United States, 285 F.2d 733 (6th Cir.1961), this Circuit first adopted the "farce and mockery" standard, applying it only in those cases where the defendant retained his own counsel. In United States v. Johnston, 318 F.2d 288, 291 (6th Cir.1963), this Circuit held that the Sixth Amendment guarantees "the adequate assistance of counsel whereby he will have a full, fair trial under the law. In other words, have his `day in court.'" In Scott v. United States, 334 F.2d 72, 73 (6th Cir.1964), the Court retreated to a standard of "a farce and a mockery of justice, shocking to the conscience of the Court." The see-saw between a "reasonably effective assistance of counsel" standard and a "farce and mockery" test was straddled in the extensive discussion in Schaber v. Maxwell, 348 F.2d 664 (6th Cir.1965). The Court cited both the "farce and mockery" standard of Diggs and Mitchell and the "reasonably likely to render and rendering reasonably effective assistance" standard of MacKenna. Concluding that the failure of counsel to file a written plea of "not guilty by reason of insanity," which had given rise to a conclusive presumption under Ohio law that the defendant was sane, had deprived petitioner of due process, the Schaber Court granted habeas relief. The case cited as most analogous to Schaber's claim was Poe v. United States, 233 F.Supp. 173 (D.D.C. 1964), where the Court rejected the farce and mockery standard:

Where the defense is substantially weakened because of the unawareness on the part of defense counsel of a rule of law basic to the case, the accused is not given the effective representation guaranteed him by the Constitution. People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963) (Traynor, J.) 233 F.Supp. at 178.

Other recent cases from this Circuit have concluded that “A charge of inadequate legal representation cannot prevail unless what was done or not done by the attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court.” Hayes v. Russell, 405 F.2d 859, 860 (6th Cir. 1969). See also Holnagel v. Kropp, 426 F.2d 777, 779 (6th Cir. 1970) cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970); Palfy v. Cardwell, 448 F.2d 328, 330 (6th Cir. 1971).

In view of the persuasive arguments against reaffirming the “farce and mockery” standard as a meaningful test of the Sixth Amendment right to the effective assistance of counsel, we reject it, except as it may be considered a conclusory description of the objective standard we adopt! Based on our decisions in Schaber v. Maxwell and United States v. Johnson, we rest on a more objective ground suggested in our recent decision in Johns v. Perini, 440 F.2d 577 (6th Cir. 1971). In that case the Court remanded for an evidentiary hearing “to determine whether a negligent omission by defense counsel precluded presentation of evidence of alibi in support of appellant’s only defense.” 440 F.2d at 579.

We hold that the assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance. It is a violation of this standard for defense counsel to deprive a criminal defendant of a substantial defense by his own ineffectiveness or incompetence. Johns v. Perini, 440 F.2d 577, 579 (6th Cir. 1971); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); King v. Beto, 429 F.2d 221, 225 (5th Cir. 1970), cert. denied, 401 U.S. 936, 91 S.Ct. 921, 28 L.Ed.2d 216 (1971); Chalk v. Beto, 429 F.2d 225, 227 (5th Cir. 1970). Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Defense counsel must investigate all apparently substantial defenses available to the defendant and must assert them in a proper and timely manner. Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) ; Wilson v. Phend, 417 F.2d 1197 (7th Cir. 1969).

It is a denial of the right to the effective assistance of counsel for an attorney to advise his client erroneously on a clear point of law if this advice leads to the deprivation of his client's right to a fair trial. Poe v. United States, 233 F.Supp. 173 (D.D.C.1964); People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963). Defense strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent deny a criminal defendant the effective assistance of counsel, if some other action would have better protected a defendant and was reasonably foreseeable as such before trial. United States v. Katz, 425 F.2d 928, 930 (2d Cir.1970). If, however, action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

We hold that Petitioner did not receive the effective assistance of counsel before and during trial. Potentially exonerating defenses were not explored by counsel and were not developed at trial. Because Petitioner was represented by incompetent and ineffective counsel, his conviction cannot stand. Harmless error tests do not apply in regard to the deprivation of a procedural right so fundamental as the effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Chapman v. California, 386 U.S. 18, 23, 43, 87 S.Ct. 824, 17 L.Ed.2d 705 (Stewart, J., concurring) (1967).

The judgment against Petitioner-Appellant is hereby vacated, and this cause should be and it hereby is remanded to the District Court with direction that the indictment in this case be dismissed unless the Government institutes new proceedings under it within 60 days of this Order.

EDWARDS, Circuit Judge

(concurring).

I concur in Judge Celebrezze’s remand of this case for new trial. The phrase “farce and a mockery, shocking to the Court” is too subjective a standard to employ as the sole criterion for determining whether or not there has been a Sixth Amendment deprivation of counsel.

The District Judge has entered strong findings of fact concerning the incompetence and ineffectiveness of appellant’s trial counsel. These findings do not appear to me to be “clearly erroneous.”

      . Beasley v. United States, Opinion and Order, Civ. Action No. 37703 (E.D.Mich., filed Jan. 26, 1973).

      . Section 2255 of Title 28 U.S.C. provides:
      A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
      If the court finds . . . that there has been such a denial or infringe-meat of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

      . District Court Opinion, 9-10.

      . The sole res gestae witness who testified said that Petitioner “resembled” the attempted robber, without being reasonably certain that he was the one.

      . District Court Opinion, 13.

      . See generally D. Mellinkoff, The Language of the Law (1963).

      . For a history of the development of standards of “effective assistance of counsel,” see Waltz, “Inadequacy of Trial Defense Representation as a Ground for Post-conviction Relief in Criminal Cases,” 59 Nw.U.L.Rev. 289 (1964).

      . The Court went beyond a mere holding that a conflict of interest alone was involved. “Irrespective of any conflict of interest, the additional burden of representing another party may conceivably impair counsel’s effectiveness.” 315 U.S. at 75, 62 S.Ct. at 467.

      . See Beaney, “The Right to Counsel: Past, Present and Future,” 49 Va.L.Rev. 1150 (1963) ; Waltz, “Inadequacy of Trial Defense Representation as a Ground for Post-conviction Relief in Criminal Cases,” 59 Nw.U.L.Rev. 289 (1964) ; Note, “Effective Assistance of Counsel for the Indigent Defendant,” 78 I-Iarv.L.Rev. 1434 (1965) ; Craig, “The Right to Adequate Representation in the Criminal Process: Some Obser vations.” 22 Sw.L.J. 260 (1968).

      . Those citing "farce and mockery" include O'Malley v. United States, 6th Cir., 285 F.2d 733 (1961); Scott v. United States, 6th Cir., 334 F.2d 72 (1964); Hayes v. Russell, 6th Cir., 405 F.2d 859 (1969); Holnagel v. Kropp, 6th Cir., 426 F.2d 777 (1970); and Palfy v. Cardwell, 6th Cir., 448 F.2d 328 (1971).
      Those positing an objective test include Norman v. United States, 100 F.2d 905, cert. denied, 306 U.S. 660, 59 S.Ct. 790 (1939); Anderson v. Bannan, 6th Cir., 250 F.2d 654 (1958); United States v. Johnson, 6th Cir., 318 F.2d 288 (1963); Schaber v. Maxwell, 6th Cir., 348 F.2d 664 (1965); and Johns v. Perini, 6th Cir., 440 F.2d 577 (1971).

      . The Court cited Diggs and Mitchell, along with cases from the Second, Seventh, and Ninth Circuits.

      . The Johnson Court held that Appellant had not had a fair opportunity to select counsel of his own choice.