author: WILKEY, Circuit Judge:

text:
    VALLEY GAS COMPANY, Petitioners, v. FEDERAL POWER COMMISSION, Respondents, Tennessee Gas Pipeline Company et al., Intervenors.
    No. 71-1743.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 10, 1972.
    Decided Oct. 2, 1973.

      Morton L. Simons, Washington, D. C., with whom Barbara M. Simons, Washington, D. C., was on the brief, for petitioners. Harold L. Talisman, Washington, D. C., also entered an appearance for petitioners.
    Michael J. Manning, Atty., F.P.C., with whom Gordon Gooch, Gen. Counsel, Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol. at the time the brief was filed, and George P. Lewnes, Asst. Gen. Counsel, F.P.C., were on the brief, for respondent.
    Harold L. Talisman, Washington, D. C., with whom Harry S. Welch, Houston, Tex., and Harry S. Littman, Washington, D. C., were on the brief, for inter-venor Tennessee Gas Pipeline Co.
    Francis H. Caskin, Washington, D. C., was on the brief for intervenors New England Gas and Electric Assn, and Air Products and Chemicals, Inc.
    John W. Glendening, Jr., New York City, was on the brief for intervenor the Berkshire Gas Co., et al.
    Before LEVENTHAL and WILKEY, Circuit Judges, and RONALD N. DAVIES, Senior Judge, United States District Court for the District of North Dakota.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   WILKEY, Circuit Judge:

This case arises on petition for review of an order of the Federal Power Commission which permitted the Tennessee Gas Pipeline Company, a division of Tenneco Inc. (Tennessee), to abandon certain liquified natural gas (LNG) facilities for the purpose of selling them to the New England Gas and Electric Association and Air Products & Chemicals, Inc. (NEGEA). As the basis for allowing such abandonment, in accordance with Section 7(b) of the Natural Gas Act, the Commission found that “the public interest will be best served by granting Tennessee’s application.” Finding that conclusion to be supported by substantial evidence, and to have been based on legally appropriate criteria, we affirm the Commission’s Order.

1. Facts

On 26 July 1965 the Commission issued a certificate of public convenience and necessity authorizing construction and operation of an in-ground storage LNG facility near Hopkinton, Massachusetts. This facility had been requested by Tennessee’s customers with a view that it would help to provide “peak-shaving” natural gas service during the winter months, by means of evaporating gas which had been liquified during the off-peak season and stored underground. Not only would such a large centralized facility spare Tennessee’s various customers the expense and inconvenience of building their own LNG peaking facilities, it would also, it was hoped, result in a lower overall cost of gas.

The liquefaction of natural gas for storage in the in-ground tanks was commenced early in 1967, in anticipation that redelivery of the gas in the form of peaking service to customers who had contracted for such service could start in the fall of 1967. Unfortunately, despite continuous attempts to fill the storage tanks, an unexpectedly high “boil off” rate held the effective storage level to one-sixth of the planned capacity. Commencement of peaking service was impossible in the face of that technological problem; extensive efforts to find a solution were unsuccessful.

Faced with this failure, Tennessee proposed an additional investment in above-ground tanks of equal capacity and filed an application to amend its certificate to that effect. However, since such a change would add dramatically to the cost of service, Tennessee conditioned its proposal on the willingness of its customers to purchase volumes of natural gas from the above-ground project at higher rates, sufficient to render it economically feasible. The customers were willing to purchase only one-sixth of the necessary volume. Therefore, Tennessee entered into a contract to sell its facilities to NEGEA, and applied for authority to abandon the original project in order to be in position to sell the facilities.

The only one of Tennessee’s customers to oppose abandonment was Valley Gas Company (Valley). Unlike many of the prior customers, Valley was not one of those prior contractors for LNG service who would be receiving peaking service, at least in some amount, from NEGEA. Valley claimed that, as a condition of approval of the abandonment, Tennessee should be ordered to provide it with some sort of substitute service essentially equivalent to that which it would have received had Tennessee’s project been a success.

On 20 April 1971 the Presiding Examiner ruled that the abandonment application should be unconditionally granted. He deferred disposition of Valley’s request for substitute service until the second phase of the administrative proceedings, which would also deal with the proper accounting treatment to be given to Tennessee’s unrecovered costs. By order of 21 July 1971 the Commission affirmed and adopted the Examiner’s decision. The Commission approved the delay of decision on Valley’s claim, noting that the Phase II hearings were by then already completed and that “fairness to New England LNG users compels our prompt decision in Phase I.”

II. Abandonment Authorization

We find that the Commission’s order permitting abandonment was' supported by substantial evidence and premised on proper criteria. The standard to be applied by the FPC in such cases is hardly a model of clarity and detail. The Natural Gas Act provides that abandonment shall be allowed only if permitted by “the present or future public convenience or necessity.” However, the key elements in the decision must obviously be the provision of the maximum supply of gas, at the lowest possible rate, consistent with the physical and economic realities of the industry. The Commission clearly applied the appropriate test in this case.

There is no question that Tennessee’s project, as originally certificated, had foundered on insurmountable physical defects encountered in the structure of the in-ground reservoirs. If the Commission had disallowed abandonment, it would in effect have been deciding to require Tennessee to press its application for amendment of the certificate, despite the fact that Tennessee’s new above-ground storage proposal lacked customer support. Given the lack of support, the Commission could not ignore the fact that Tennessee’s proposal would have involved greater cost and delay than the readily available alternative represented by an approved sale of the facilities to NEGEA.

Since the applicable statutory standard is the present or future public interest, the Commission quite properly refrained from recriminations and concentration on hindsight in reaching its decision. The question before the Commission was not what might have or should have been done to make the in-ground LNG storage project a success, but rather what course was now best for all the customers of gas in the New England region. In that light, the advantages of the NEGEA proposal were just as important as the disadvantages of Tennessee’s new plan.

With regard to those customers who would be receiving LNG service from NEGEA (largely Worcester and New Bedford — but many others as well for a while), there was an advantage in cost. By buying Tennessee’s liquefaction facilities, and building its own storage tanks, the NEGEA group was eliminating the middleman as to those functions.

It is true that those customers, most importantly Valley, who would not receive any LNG service from the Hopkin-ton plant, if abandonment were approved, found this reduction in cost to their neighbors cold comfort. However, the alternatives available at the crucial time were not higher cost gas to all as opposed to lower cost gas to a few. To the contrary, Tennessee’s LNG plant remained in its moribund state, unable to commence operation in the near future —whereas NEGEA’s purchase of the plant promised to allow much more rapid utilization of these facilities than would have been possible even under Tennessee’s proposed amendment authorizing above-ground storage operations, to the greater good of all New England gas customers.

The advantages of more rapid commencement of service from NEGEA stemmed from legitimate and very real considerations. Tennessee would have had to commence construction of above-ground tanks from scratch once its application for amendment was granted, a process requiring approximately 19 months. In contrast, NEGEA already had adequate above-ground tanks in construction near the site. Although Tennessee had obtained authority from the Massachusetts Department of Public Utilities in 1965 for its in-ground LNG reservoirs, it had not received similar authority for its above-ground proposal. Nor, in the alternative, had it obtained a variance from the Zoning Board of Appeals of the Town of Hopkinton, as required by Massachusetts law. In contrast, NEGEA’s above-ground storage tanks had received all necessary approvals.

In addition to the cost and timing advantages of NEGEA’s proposed project, the Commission also properly considered the lack of a market adequate to support Tennessee’s proposal at the increased rates required by the additional investment in above-ground tanks. We accept Valley’s contention that in an abandonment proceeding the applicant (Tennessee) bears the burden of showing absence of market support, just as an application for amendment of a certificate of public convenience and necessity normally requires an affirmative showing of the degree of market support which exists for the change. No matter where the burden rested, the record amply supports only one possible conclusion — Tennessee could not obtain adequate customer commitment at the increased rates. On being apprised of the cost of the new proposal, the vast majority of the prospective customers decided to make alternative arrangements for peaking service, at least for most of their required supply. In light of that situation, compelling Tennessee to proceed with its application for amendment of the certificate would have been an illegal exercise in futility.

To support its claim that the Commission’s order was founded on legally impermissible criteria, Valley cites Michigan Consolidated Gas Company v. FPC. In that case, the court found that abandonment of gas service could not be legally justified merely because the pipeline, Panhandle, “prefer [red] to use that gas for more profitable unregulated sales, or because it want[ed] to be rid of what it consider [ed] a vexatious servitude.” However, Michigan Consolidated involved a supply of gas which had already been committed, on a long term basis, to an established service. Further, there were “strong indications that one of Panhandle’s primary purposes in seeking abandonment [was] to shift gas from regulated to unregulated sales.” Michigan Consolidated, the only affected customer, vigorously opposed the abandonment and pointed out that uncommitted gas was available to meet the pipeline’s contractual obligation. In contrast, Tennessee seeks abandonment of a service which was not even begun, the difficulties with which obviously stem from technological problems rather than a desire to avoid regulation, in the context of bona fide gas shortage requiring general refusals of new service commitments, and with the support of all but one of its prospective customers.

III. Deferral of Valley’s Claim

As previously mentioned, the Commission ordered the proceeding split into two parts. Valley further ascribes as error the Commission’s approval of the Examiner’s decision to defer resolution of Valley’s claim to substitute service until Phase II.

The basic phasing order was not timely challenged, nor do we think it could have been opposed successfully, given the imperative need to rule on NEGEA’s plan in time for the 1971-72 winter season. As to substitute service, there are indications that the Examiner and the FPC would have decided against Valley if resolution of Valley’s claim could not have been deferred. But we do not put our decision on that ground, for we think it was entirely reasonable, so far as Valley’s objection was concerned, to defer that matter. This deferral gave Valley an opportunity to amplify the record so as to show that it was in a class thát was equitably entitled to better treatment than Tennessee proposed, even though, as Tennessee convincingly showed, neither the certificate nor any contractual obligation bound it to supply Valley with LNG peaking service, or a substitute therefor.

We uphold the ultimate determination on this issue in Tennessee’s favor in No. 72-2106, Valley Gas Company v. FPC, issued today, and we there also reject Valley’s contention that the delay resulted in an improper shift of the burden of proof. Although deferring Valley’s substitute service claim did create some potential procedural problems, we find there was no error prejudicial to Valley Gas.

IV. Conclusion

In its approval of the Examiner’s decision in Phase I, the Commission properly put great emphasis on the amply supported finding that operation of the facilities by NEGEA presented the prospect of a full, immediate, and less costly use to supply peaking service to the New England consuming public, whereas an order to Tennessee to proceed would have led to further delay of a project already convincingly lacking in market support. Accordingly, the Commission’s order is Affirmed.

      . Tennessee’s application for abandonment authority was filed in Docket No. CP70-311 on 19 June 1970. The Presiding Examiner’s initial decision granting that authority was issued on 20 April 1971. Appendix, Vol. I, pp. 35-57; Record at 1306-28. The Commission affirmed and adopted the Examiner’s decision by an Order, the specific subject of review here, issued 21 July 1971. App., Vol. I, pp. 111-12; Record at 1458-59. Rehearing was denied by an Order issued 15 September 1971 and amended 30 September 1971. App., Vol. I, pp. 116-17, 121; Record at 1463-64, 1468.

      . Docket No. CP70-311 concerned the abandonment of the LNG facility and the proposed peaking service to be supplied thereby. In a consolidated Docket No. CP65-352, Tennessee asked and was granted the Commission’s approval of its withdrawal of a petition to amend its previous certificate to authorize a plan to substitute above-ground storage tanks for in-ground storage reservoirs in connection with the LNG facilities. Another consolidated Docket No. CP71-20 concerned abandonment of a related five mile long delivery line.

      . 15 U.S.C. § 717f(b).

      . App., Vol. I, p. 57 (Presiding Examiner’s decision, adopted by the Commission). The relevant statute provides:
      (b) No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first liad and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present • or future public convenience or necessity permit such abandonment.

      . At the time this project was planned, it was thought that in-ground storage reservoirs would have' the advantages of both increased economy and greater safety,

      . “Peak-shaving” refers to the use of a supplemental supply of gas to augment normal pipeline supplies during peak demand periods of relatively short duration.

      . The use of “peak-shaving” helps to reduce the price of gas to customers. The rate for pipeline general service normally consists of two parts: (1) a commodity charge for each Mcf actually purchased and (2) a demand charge which, in the case of Tennessee’s General Service, is a monthly charge based on the greatest volume of gas delivered to the customer under that type of service on any day during the preceding twelve months. Since pealt-shaving levels out the short-termed highest periods of demand for General Service, taking gas for this peak demand from such a separate source reduces the demand charge throughout the succeeding twelve months.

      . The liquefaction of gas at Tennessee’s compressor station at Hopkinton, Massachusetts began early in 1967. Although the facilities were continuously operated at near capacity for some time, it became apparent that the “boil-off” rate so far exceeded expectations that the 3,000,000 'Mcf capacity in-ground reservoirs could only be filled to a storage level of 500,000 Mcf. App., Vol. I, p. 39.

      . The original average rate offered by Tennessee for LNG service was $1.25 per Mcf. After the need for installing above-ground storage tanks was discovered Tennessee determined that it would not be able to operate the project without an average LNG service rate of $1.99 per Mcf. Because most of the potential customers felt that other arrangements would be preferable to this new proposal, Tennessee found that it could sell only 500,000 Mcf annually on that basis, whereas the feasibility of going forward depended on annual LNG sales of six times that amount. App., Vol. I, p. 46; Record at 65, 1317.

      . On 1 April 1970 Tennessee contracted to sell the LNG facility to NEGEA for a total price of over $4 million.

      . A group of. 22 New England customers of Tennessee intervened below to urge that abandonment authorization be granted as expeditiously as possible. App., Vol. I, p. 40; Record at 23-24. This group includes 16 of the 18 distribution companies to which Tennessee proposed to supply LNG service from its in-ground project. The other two would-be LNG customers were Worcester (a subsidiary of NEGEA) and Valley.

      . App., Vol. I, p. 111; Record at 1458.

      . 15 U.S.C. § 717f(b).

      . While Valley has east aspersions on Tennessee’s cost calculations, it basically focuses its appeal on the claim that it is entitled in equity to more favorable treatment following the abandonment than Tennessee proposes. We would have a more sophisticated question to review if Valley or other of Tennessee’s customers had focused on a contention that the low market support for Tennessee’s proposal was only a corollary of Tennessee’s use of higher cost calculations than were used by NEGEA; that this in turn was faulty, because it reflected Tennessee’s insistence on its $15 million original cost, whereas NEGEA’s , calculations reflected that it was able to pick up Tennessee’s facility at a $4 million price, in a very limited market for specialty equipment; that this in turn reflected the fact that the equipment was not worth more than $4 million to NEGEA. Thus if Tennessee had in good faith accepted the reality that its $15 million investment was now worth only $4 million, and charged the $11 million difference to obsolescence or an extraordinary loss, it, too, would have had a low capital cost, which would have calculated out to realistic rates that would have generated a market. All this was bypassed because Tennessee did not want to jeopardize its claim that it should be allowed to amortize this loss through charges over a period of years (which would have been translated into cost of service in a rate case calculation), a claim that was rejected in Phase II.
      We make these observations because we do not wish to be taken as being completely unaware of the 'possibility of what may well have been industry realities. But as a court our function is to pass on contentions presented to the Commission and to us, and we are not free to roam into matters that the EPC might have taken up sua sponte.

      . The Commission properly found it “necessary to evaluate the public interest under today’s circumstances, as distinguished from the 1965 gas supply situation.” App., Vol. I, pp. 43-44; Record at 1314-15.

      . Valley claimed that support for Tennessee’s quote of $1.99 per Mcf for its above-granted proposal was “dubious”. However, the Commission reviewed Tennessee’s cost study and correctly found that Valley “failed to present evidence contradicting the results of that study.” App., Vol. I, p. 47; Record at 1318. There is nothing in the record to suggest bad.faith on Tennessee’s part. Nor should we have expected to find any, since operation of the facility at rates acceptable to its customers would most likely have entitled Tennessee to include all of its unrecov-ered costs in its rate base, while failure to go forward launched them into the complex, and for them unfortunately resolved, accounting problems discussed in our review of Phase II.
      Valley’s companion suggestion that Tennessee could have proceeded with the $1.25 rate and, immediately upon commencement of service filed for a rate increase merely demonstrates that forcing Tennessee to continue with the above-ground project would have resulted in either lack of adequate market support or the entrapment of customers tied in to a higher rate against their will.

      . Tennessee shut down the liquefaction process in May of 1969 and thereafter ceased all significant activity at the Hopkin-ton plant site.

      . Record at 967.

      . NEGEA’s first above-ground storage tank at Hopkinton was planned to be completed by August 1971. Two tanks were in fact in operation by early November 1971. Record at 94.

      . Mass. General Laws, Chapter 40A, Sections 15-17.

      . Among the intriguing questions unanswered in this record, but irrelevant to our disposition herein, is why NEGEA was building above-ground tanks so conveniently near the Hopkinton liquefaction plant. Without these NEGEA would not have been ' in position largely to assume the Tennessee project.

      . We accept Valley’s characterization of the burden in order to give the benefit of the doubt to their argument that Tennessee could have proceeded with construction of the above-ground tanks under its previous certificate. If that were the case the issue would be properly framed as solely an abandonment application. However, we note that this alleged existing authority to go ahead would not have relieved Tennessee of its more central need- to meet the added expense involved.

      . 108 U.S.App.D.C. 409, 283 F.2d 204 (1960), cert. denied 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227.

      . 283 F.2d 204, 214.

      . Id. at 210.

      . The gas for NEGEA’s ENG service was to come from the longterm supply of up to 54,300 Mcf per day available under contract to Worcester Gas Light Company, a subsidiary of NEGEA. Where the natural gas supply for Tennessee’s proposed above-, ground storage project would have originated is still unclear.

      . By order issued 25 November 1970 the Commission granted Tennessee’s unopposed petition that the proceeding be held in two phases: Phase I to deal .with Tennessee’s request for abandonment; and Phase II to deal with Tennessee’s request for amortization.

      . No party, including Valley, objected to the Commission’s phasing directive either before or during the hearing conducted in Phase I.

      . It was necessary to begin operation of the liquefaction plant prior to 1 June 1971 in order to supply LNG for peaking service during the 1971-72 winter season.

      . The Presiding Examiner’s order in Phase I provided that the reinstatement of service issue should be left for consideration and decision in Phase II “[i]n fairness to Valley Gas.’’ App., Vol. I, p. 55; Record at 1326. (Emphasis added).


source: Caselaw Access Project

license: Public Domain

text:
    TENNESSEE GAS PIPELINE COMPANY, a Division of Tenneco Inc., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Berkshire Gas Company, et al., Intervenor. VALLEY GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Tennessee Gas Pipeline Company et al., Intervenors.
    Nos. 72-2101, 72-2106.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 6, 1973.
    Decided Oct. 2, 1973.

      Harold L. Talisman, Washington, D. C., with whom Harry S. Welch, Houston, Tex., and Harry S. Littman, Washington, D. C., were on -the brief, for petitioner in No. 72-2101 and intervenor Tennessee Gas Pipeline Co. in No. 72-2106.
    Morton L. Simons, Washington, D. C., with whom Barbara M. Simons, Washington, D. C., was on the brief for petitioner in No. 72-2106.
    Michael J. Manning, Atty., F. P. C., with whom Leo E. Forquer, Gen. Counsel, and George W. McHenry, Jr., Acting' Sol., F. P. C., were on the brief, for respondent.
    John W. Glendening, Jr., New York City, was on the brief for intervenors, the Berkshire Gas Co. and others.
    Francis H. Caskin, Washington, D. C., entered an appearance for interve-nors, New England Gas and Electric Assn, and Air Products and Chemicals, Inc., in No. 72-2106.
    Before BAZELON, Chief Judge, and ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

This case arises on petitions for review of an Order of the Federal Power Commission which resolved the second phase of the proceedings discussed in Valley Gas Company v. FPC, No. 71-1743, 159 U.S.App.D.C. -, 487 F.2d 1182, which we decide today. On review of the first phase, this court affirmed a Commission Order which (1) authorized abandonment óf a liquified natural gas (LNG) project, and (2) allowed withdrawal of a petition to amend the original certificate for that project. The Order under review here (1) denied the claim of Valley Gas Company (Valley) for reinstatement of alleged losses in level of service, and (2) refused the request of Tennessee Gas Pipeline Company (Tennessee) that its unrecovered losses be amortized (and thereby included in its rate base) as either Research and Development Costs or as Extraordinary Property Losses. Supported by substantial evidence and based on legally appropriate criteria, as it was, the Commission’s Order under review here is affirmed.

1. Facts

On 5 May 1965 Tennessee filed an application in Docket No. CP 65-352 for authority to construct and operate an in-ground storage LNG facility designed to render peaking service to eighteen New England customers. On 26 July 1965 the Commission issued a certificate of public convenience and necessity authorizing the construction and operation of the facilities to provide the proposed service. One basis for that approval was the existence of contracts with proposed customers to. take such peaking service, at prearranged rates, when the project was completed.

Tennessee’s customers had requested construction of these facilities, with a central purpose of relieving themselves of the expense involved in building separate and individual storage facilities to provide “peak-shaving” service. Since the construction of such a large facility would take some time, Tennessee undertook to provide an “Interim General” service (IG) to serve peaking needs, renewable at one year intervals until the LNG facility was completed. When the originally planned and certified facility failed for technological reasons, and Tennessee’s proposed alternative met with only lukewarm customer support at necessarily increased proposed rates, Tennessee sought approval to abandon the in-ground LNG project, asked to withdraw its application for amendment of the certificate to allow above-ground storage, and allowed its current one-year interim service to expire. Protesting these actions, which resulted in termination of a supply of 6,900 Mcf of IG gas annually to itself, Valley claims that Tennessee is under a duty to continue supplying some form of substitute service to replace these lost supplies. The Commission disagreed.

With respect to the proper accounting treatment to be given Tennessee’s losses, the Commission reversed the Administrative Law Judge’s decision, which allowed Tennessee to amortize its net loss of $8,841,744 over a ten year period as a miscellaneous deferred debit. The Commission found that under applicable regulations the loss could not be properly classified as either a Research and Development Cost or an Extraordinary Property Loss. Further, the Commission held that the original certificate conditions agreed to by Tennessee precluded amortization of costs, no matter how characterized, to the extent that the project proved unsuccessful.

II. Valley’s Claim

As to whether Tennessee was legally obligated to complete (or replace with an adequate substitute) the LNG project which had foundered on technological and economic shoals, we agree with the Commission’s conclusion that there was no such obligation, either to Valley individually or to the customer group as a whole.

A. Interim General Service

Valley attempted to focus the argument on the cancellation, or more accurately, refusal to further extend, Interim General service. This position conveniently overlooks the fact that IG service was specifically intended as merely an interim measure “pending the completion of [the] . . . liquified natural gas facilities.” It was designed, for that interim period, “to avoid the expense of constructing peak shaving facilities by the New England customers who expected [LNG] service.” IG was quite obviously a necessary incentive for the customers to await completion of the larger centralized project, rather than proceeding with construction of decentralized plants. It also helped to insure the availability of adequate market support (at the originally proposed rates) to justify the central LNG project when it was to be completed.

The IG service was carefully tailored to this temporary purpose. Since the exact completion date of the in-ground project was uncertain, the related IG contracts were explicitly limited to a one year term; the Commission’s certificates only “authorized [the IG] as a short-term temporary service on a year-to-year basis.” When the LNG project failed, and Tennessee’s alternative proved unacceptable, unless Tennessee had a continuing obligation either to proceed with the project or to provide an acceptable substitute, the whole rationale and basis for the IG service disappeared.

B. The Certificate

That Tennessee had no general continuing duty to complete the originally certificated project, or to use the liquefaction facilities in some other way to benefit the original customer group, was properly determined by the Commission in Phase I. Permission to withdraw Tennessee’s application for amendment of the original certificate, like permission to abandon, was granted on the appropriate “present or future public interest” test. While a certificate of public convenience and necessity does contemplate that the applicant will proceed with the best efforts towards completion of the project and commencement of the proposed service, such a certificate is also subject to the contingency that approved abandonment may, as a general matter, validly cancel that obligation. The certificate neither commands the impossible nor guarantees the unattainable.

Valley contends that it suffered special financial hardship as a re-suit of the abandonment, and that as a result the “public interest,” as applied to obligations created by the certificate, required that abandonment be conditioned on Tennessee’s continuation of some form of substitute service to Valley. While it is undoubtedly within the power of the Commission to so condition abandonment approvals in appropriate circumstances, refusal to do so here was neither arbitrary nor without support in the record.

Valley’s plight did not differ materially from that of the other customers. Once the LNG project failed, all of Tennessee’s customers were necessarily subjected to differing levels of financial expense in making new peaking service arrangements, depending on their need for such service and the proximity and size of alternative sources. But all, including Valley, succeeded in making adequate arrangements. It was true that some of the old customers were in varying degrees in a better position than others to benefit from NEGEA’s project. But it was inevitable that any new ownership and use of the liquefaction plant would result in both different rates and a different customer group. The Commission did not approve NEGEA’s plan because it most closely resembled Tennessee’s project, but rather because it was the best alternative from the standpoint of all New England gas consumers.

If the certificate created an obligation on Tennessee’s part to go forward with provision of a peaking service come hell or a high boil-off rate, then that obligation necessarily extended to all customers alike. Such a conclusion would necessarily imply that rights originally created by this certificate of public convenience and necessity could not be can-celled by later developments which altered the present or future public interest when they occurred. We hold to the contrary in No. 71-1743.

C. The Contracts

If the original certification of Tennessee’s in-ground storage LNG project did not operate to give Valley a continuing or special right to the expected level of service, then the only remaining basis for Valley’s claim is an argument that Tennessee had some contractual duty to supply the gas. As discussed above, no such contractual duty existed with respect to continuation of the IG service — since the contracts applicable thereto were specifically limited to one-year’s duration. In addition, while a pipeline and its customers no doubt could contract to assure a guaranteed gas supply without regard to the successful construction of a proposed physical plant, the contracts entered into with respect to Tennessee’s proposed LNG peaking service established no such right or guarantee.

All the prospective customers signed agreements to take LNG service, a show of market support at the proposed volume and rates which was no doubt helpful in obtaining original certification. However, all those contracts specifically provided that Tennessee would “be under no obligation to deliver” (nor would the customers be under obligation to take) gas “until the expiration of thirty days after [Tennessee] . . . notified [the customer] ... in writing that [Tennessee] ... is ready to commence the delivery of such new quantities of gas.” Such notice was never sent, because of the technological failure of the project. Although such a contract entails an implicit obligation on Tennessee’s part to attempt completion in good faith, there was no evidence of malingering. As with the certificate, the contracts involved were just not designed to repeal any laws of nature which got in the way.

D. Reliance

Nor did Tennessee act in any improper way to mislead Valley or raise false hopes. The failure of the in-ground project was evident to all by March of 1969. This in itself should have alerted Valley that the IG service, which was designed as merely a stop-gap measure, was in jeopardy. As early as 17 October 1969 Tennessee formally notified its customers that it would not offer IG service for the 1970-71 winter. As late as the 1969-70 season, Tennessee was not limiting the availability of firm General Service to its customers. Yet Valley declined to contract for such base-load long-term service. Having made other arrangements for peaking gas, Valley is now asking that the “substitute service” it requests take the form of firm General Service. To the extent that Valley’s claim is for the fulfillment of its expectations, the very nature of its requests may be a revealing indication of the actual use to which Valley put the IG service while it was still available.

If Valley’s “reliance” was in reality tied to its need for and expectation of “peaking service,” it had considerable advance notice of the need to make other arrangements, and actually did so. If, as seems likely, Valley’s reliance was tied to the hope that it could continue to use IG service as a supplement for its base load demand, rather than its short-term peak demand needs, then Valley is merely suffering now from its own inappropriate use of the IG gas. It is important to remember that the whole purpose of the LNG project, and the fill-in IG service, was to provide a substitute for other peaking arrangements. Neither was ever intended (as opposed, perhaps, to used) as a substitute for General Service, which is a base load, year-round service rendered on a long-term basis. There, is no explanation in the record as to why the IG service was so structured that it could be used year round.

There is reason to believe that Valley’s failure to convert to General Service while that was possible, and its reliance on IG sei'vice to meet base load demand (until caught out by the termination of that service under its own terms), was not based on any plausible construction of the conditions attaching to IG, but rather on a desire to squeeze the last possible economic advantage out of the rate structure — legitimate, but hazardous, given the risks attaching to such a course. One legitimate function of any peaking service is to lower rates by lessening the impact of the highest demand days on the “demand charge” levied in the succeeding twelve months. Since the IG service began afresh each November, the demand charge as to that gas calculated on the basis of the greatest amount supplied during any day in that contract year. Assuming the highest day fell in January or February, Valley paid the highest demand charge for only nine or ten months of the year (until the next contract termination date) . If IG was used, not for purely peak demand, but in large amounts year round, a substantial saving might thereby be made. In contrast, if Valley had contracted for firm long-term General Service for its regular base load needs, no such advantage could have been obtained. So the one-year term of IG service, which Valley now asserts is not to be taken literally, was not most likely viewed as a definite advantage for Valley at the time the IG service was still in effect.

In short, both the early warnings of trouble and Valley’s economic motivation for failing to contract for General Service while that was still available belie, at least as to justified'reliance, its claim that it would have obtained a full supply of gas under the General Service schedule, had it not been for Tennessee’s proposal of the LNG project and the interim availability of IG gas.

E. Burden of Proof

Finally, Valley contends that the burden of proof on the issue of “substitute service” was improperly shifted from Tennessee to Valley as a result of deferral of that question to Phase II of the proceedings. To the extent that Valley is claiming that the abandonment did not meet the “public interest” standard, unless conditioned on provision of additional service to itself, we must agree that the burden to refute that claim rested on Tennessee, the applicant for abandonment authority. However, contrary to Valley’s contentions, we find that the burden was in fact correctly allocated.

Although he did not rule on the question, the Examiner in Phase I clearly felt that Tennessee had made a persuasive showing that Valley was not entitled to relief. Despite that conclusion, for Valley’s benefit, he delayed resolution of the substitute service issue and directed that “Tennessee should show cause in Phase II of the proceeding why it should not provide the additional interim gas service desired by Valley Gas.” On review of the Administrative Law Judge’s decision in Phase II, the Commission explicitly found that in Phase II “Tennessee satisfied the Examiner’s directive” to show cause “and went forward at the hearing with a persuasive presentation.”

It is true that the Commission also noted that “the burden of proof . remained upon Valley as to the alleged undue discrimination and Valley has not shown that it is being unduly discriminated against.” Valley cites this language as an indication that the burden of proof was improperly switched. Yet, to the extent that Valley’s claim alleged wrongful conduct or breach of contract on Tennessee’s part, rather than asserting substitute service was required by the public interest standard applicable generally to the question of abandonment and its consequences, Valley should have borne that burden.

Read as a whole, and in context, the challenged Order reveals that the Commission merely separated out the two possible interpretations of Valley’s claim, bent over backwards to require Tennessee to make a second showing on the abandonment-related argument, and correctly put Valley to its proof on the arguments which remained after the general public interest test had been applied, to Valley’s detriment, on the abandonment-related question.

III. Accounting Treatment for Tennessee’s Unrecovered Losses

In its own petition for review, Tennessee challenges the Commission’s order to the extent that it reverses the decision of the Administrative Law Judge and refuses to allow amortization (and, consequently, rate-base treatment) of the. unrecovered costs related to the Hopkinton LNG project. Tennessee seeks to have these costs included in its rate base as either Research and Development expenses or as Extraordinary Property Losses. While disputing those characterizations, the Commission-found that Tennessee’s claim for rate base treatment was in any event barred by specific conditions included in the original certificate and accepted by Tennessee. Without attempting to delve into the questions raised by the specific characterization claimed to allow amortization, we hold that the restrictions in the original certificate were properly construed to bar inclusion of these unre-covered costs in Tennessee’s rate base.

When the original certificate of public convenience and necessity was issued for the LNG project, the Commission included, at the request of several intervenors and with Tennessee’s consent, specific restrictions which were essentially designed to deny future rate base treatment to the cost of the proposed facilities to the extent that they proved unsuccessful. Specifically, clause (E) provided, in pertinent part, that

[i]n the event that Applicant shall be unable, because of mechanical or operational failure of the LNG facilities, to deliver the maximum LNG winter contract quantity of gas, it shall,__ in any rate determination, if so directed by the Commission, remove from its rate base an amount which shall be determined by multiplying the net original cost of plant and facilities authorized by a fraction the numerator of which shall be the annual winter contract quantity which the Applicant was unable to deliver and the denominator of which shall be the maximum winter contract quantity. .

If this formula is applied to a total failure to provide gas, the result is that the Commission may direct exclusion of all costs from Tennessee’s rate base. By denying Tennessee’s request for amortization, the Commission has done so.

Tennessee argues that these conditions were not meant to pre-judge the appropriate accounting treatment in this case. To the extent that the Commission was intended to exercise its discretion at the time of decision on the rate treatment to be given such costs, and could interpret or indeed modify or refuse to enforce the certificate decis-sions where warranted, we agree. However, the Commission has now judged the impact of these restrictions in the light of both past expectations and present circumstances. In interpreting its own prior certificate and its present statutory duty, a determination to which this court must give suitable deference, the Commission has come to a conclusion which we see no reason to disturb.

Although it is arguable that the conditions did not explicitly foresee the possibility of total failure of the LNG project, their clear intent was that rate base treatment should turn on the level of successfully delivered service. Tennessee’s resolution of any latent ambiguity would embrace the absurd result that, while a mere 1% success rate would allow the Commission to deny 99% of the costs rate base treatment, total failure somehow opens the way for complete amortization. The basic intent behind these conditions, as accepted by Tennessee, can be gleaned from their origination with intervenors, who wished to protect the integrity of the pipeline’s system-wide rate structure by barring rate base impact on those who would not benefit from the project. Despite any position later taken by some of Tennessee’s New England customers, it would be irrational to hold, on the basis of language so originating, that while Tennessee, which planned and controlled the facilities, was not guaranteeing to its independent customers the success of the project, the customers were making such a sweeping guarantee to Tennessee. The Commission’s reading of the certificate conditions is eminently reasonable.

IV. Conclusion

The failure of Tennessee’s planned LNG facilities gave rise to regrettable dislocations for all of the parties involved. In essence, the Commission’s determinations under review here and in No. 71-1743, decided today, were based on the conclusion that the applicable contracts, regulations, certificates and statutes combined to require that the facilities be committed to the most desirable future use and that the various losses rest where they fell. We find the Commission’s reasoning, and the result reached, to be quite sound. Accordingly, the Commission’s Order is

Affirmed.

      . Under review here is Federal Power Commission’s Opinion No. 624, issued 26 July 1972. Appendix, Vol. I, pp. 226-50; Record at 1836-60. (The appendix in No. 71-1743 has -been made a part of the record in this case. References to it will be noted as “App. (No. 71-1743)”.) The Commission denied rehearing by an order issued 22 September 1972. App., Vol. I, pp. 295-97; Record at 1909-11. Much of the background of this controversy we discussed in No. 71-1743, so the outline of facts supplied by this opinion will assume familiarity with that case.

      . 34 F.P.C. 115-17.

      . The New England customers had urged Tennessee to construct a centralized LNG facility to provide “peaking service” because their engineering consultant had recommended that such a facility would be preferable to the construction of individual peaking plants by each of the distributors. App. (No. 71-1743), Vol III, p. 61.

      . Tennessee’s Interim General Service was provided on a year-to-year basis for the 1966-67, 1967-68, 1968-69 and' 1969-70 seasons. At the conclusion of each year, the IG rate schedule and each service agreement terminated by their own terms, and the IG rate schedule for the year was cancelled pursuant to the Commission’s orders. Record at 1561, 1564.

      . See the court’s decision in No. 71-1743, Valley Gas Company v. F.P.C., issued today, for a more detailed discussion of the failure of the original project and Tennessee’s proposed alternative.

      . IG was terminated, under the terms of the most recent one-year contract, on 1 November 1970.

      . Although on 16 June 1970 Tennessee notified all of its customers that in light of a sharply deteriorating gas supply situation it could not offer additional gas (IG) service beyond that authorized for 1970-71, it did increase Valley’s General Service (as well as that for other customers in differing amounts) for that period to 20,150 Mcf per day as ■ compared to 18,800 Mcf per day in 1969-70. As noted above, Valley’s approximately 6,000 Mcf per day of Interim General service in 1969-70 expired by its own terms at the conclusion of that year. The Commission authorized Tennessee’s 1970-71 additional firm long-term General Service plans by an order issued 22 June 1970, Tennessee Gas Pipeline Company, a Division of Tenneco Inc., 43 F.P.C. 937, 941 (1970). Subsequently, Valley agreed to a reduction in such authorization to 19,995 Mcf per day as part of a settlement wherein Valley was permitted to abandon certain sales to Blackstone Gas Company. Talley Gas Company, 44 F.P.C. 1634 (1970).

      . The pertinent conditions provided:
      (E) Upon full development of all facilities authorized herein, Applicant shall notify the Commission of the date when it has delivered, on demand of its customers, the maximum LNG winter contract quantity of gas, or that it has been unable to so deliver this quantity. In the event that Applicant shall have been unable, because of mechanical or operational failure of the LNG facilities, to deliver the maximum LNG winter contract quantity of gas, it shall, in any rate determination, if so directed by the Commission, remove from its rate base an amount which shall be determined by multiplying the net original cost of plant and facilities authorized by a fraction the numerator of which shall be the annual winter contract quantity which Applicant was unable to deliver and the denominator of which shall be the maximum winter contract quantity of 3,032,176 Mcf of gas; provided, however, this said amount may again be included in Applicant’s rate base in any rate determination if Applicant can deliver the maximum LNG winter contract quantity of gas during any winter withdrawal period.
      (F) In any rate proceeding instituted after the liquefied natural gas facilities certificated have been transferred to gas plant in service, should the “test-period” (as presently defined in the Commission’s Regulations) or any part thereof fall prior to the commencement of the full service of 121,454 Mcf per day authorized herein. Applicant shall nevertheless reflect revenues and costs based upon such full service.
      (G) Applicant shall not, in any rate proceeding, attempt to assess against any other class of service any deficiency in revenues for rendering the service certificated herein below the cost of service associated with the certificated LNG plant and storage facilities, prepared in the manner shown by Exhibits N and P, Schedule 1 of the application in this proceeding.

      . 36 F.P.C. 585, 586 (1966).

      . 39 F.P.C. 839 (1968).

      . Record at 1853.

      . We affirmed that determination in No. 71-1743.

      . Intervenors, the Berkshire Gas Company, et al., so argue. The certificate made no special conditions as to any given customer. Their contracts were the same. Though most of the customers did not oppose abandonment, the Administrative Law Judge found that Valley “has failed to show exceptional need for additional gas supply as compared with the other customers.” Record at 1637. (To the extent that this suggests an incorrect allocation of the burden of proof, note that the Commission specifically recognized Tennessee’s primary burden in affirming the Administrative Law Judge’s decision. Record at 1855).

      . Record (No. 71-1743) at 603.

      . A representative of Tennessee met with the customers in -March of 1969 to explain the necessity for modification of the project and increasing the proposed rates. He also indicated at that time that lack of market support for the amended proposal would force total abandonment. By June of 1969 the customers were notified that inadequate support was forthcoming and that Tennessee planned to abandon the project. App., Vol. II, p. 813.

      . The general gas shortage situation renders Tennessee’s decision not to supply additional unobligated service quite reasonable. Tennessee had turned down requests of existing contracted demand customers for increased services totalling in excess of 450,000 Mcf per day for 1971-72. App., Vol. I, p. 113; Record at 1636. Indeed, since Tennessee’s notice to its customers on 16 June 1970 that additional commitments would not be made, many pipelines have been unable to meet existing service obligations, and more than twenty pipelines now have cases pending before the Commission involving plans for curtailment of service. See Utilization and Conservation of Natural Gas, Docket No. R. 467, Order issued 8 January 1973, 38 Fed.Reg. 1517 (1973).

      . One possible answer is that, given industrial uses, there was no guarantee that the highest demand day would result from peak winter demand for heat.

      . App. (No. 71-1743), Vol. III, pp. 468-69.

      . Michigan Consolidated Gas Company v. F.P.C., 108 U.S.App.D.C, 409, 419, 283 F.2d 204, 214 (1960).

      . App., Vol. I, p. 245; Record at 1855.

      . Ibid.

      . The Commission’s original Order notes that the intervenors waived a formal hearing on condition that restrictions substantially “equivalent to those in [its] order of July 3, 1963, Transcontinental Gas Pipe Line Corporation, Docket No. CP 63-228, 30 F.P.C. 38” were imposed. App., Vol. I, p. 233; Record at 1843.


author: BAZELON, Chief Judge: MacKINNON, Circuit Judge,

text:
    UNITED STATES of America v. Willie DeCOSTER, Jr., Appellant.
    No. 72-1283.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 23, 1973.
    Decided Oct. 4, 1973.
    Rehearing Denied Dec. 27, 1973.

      MacKinnon, Circuit Judge, concurred in part and dissented in part and filed opinion.
    Calvin Davison, Washington, D.C. (appointed by this Court), for appellant.
    Richard S. Vermeire, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry, Asst. U.S. Atty., and Philip L. Cohan, Asst. U.S. Atty. at the time the brief was filed, were on the brief, for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   BAZELON, Chief Judge:

The only serious issue in this case is whether appellant was denied his constitutionally guaranteed right to the effective assistance of counsel.

I

The facts are relatively simple. The victim testified that he was accosted by appellant and two accomplices in a parking lot at about 6 p.m. He stated that -one of the accomplices held him from behind, while the other stood in front of him with a knife and appellant went through his pockets. The robbers took a wallet containing $110, then fled when the police arrived.

Two policemen testified that they were cruising in an unmarked car when they saw the robbery in progress. The officers alighted from their vehicle and gave chase. One officer followed and arrested a man identified as Eley, and found a straight razor in his pocket. The second policeman- and the victim chased appellant and his other cohort. When this pair of robbers split up, the policeman continued after appellant. The officer’s quarry ran into a nearby hotel and the policeman followed; he found appellant standing at the desk in the lobby and arrested him. The victim immediately identified appellant as one of the robbers. A search of appellant turned up neither the stolen wallet nor any weapons. And neither officer had seen any weapon in use during the robbery.

Between the time of the offense and the time of trial, the victim was in a serious automobile accident, which caused lapses in his memory and damage to his eyesight. At trial, he was unable to identify either appellant or the straight razor taken from Eley.

Appellant testified that on the afternoon of the crime he met the victim for the first time at a bar near the parking lot where the robbery was alleged to have occurred. At around 6 p.m., after having a few drinks with the victim, appellant claims to have returned to his hotel, where he was arrested while trying to obtain his key from the desk. The victim was unsure whether he had met appellant before the robbery. The accomplice, Eley, testified that on the day of the robbery he saw appellant and the victim drinking together at the bar and, later, fighting in a nearby parking lot when the police arrived.

DeCoster was convicted by a jury of aiding and abetting in an armed robbery and an assault with a dnagerous weapon. He was sentenced to 2-8 years on each count, to be served concurrently.

II

Several events and circumstances suggest that appellant may have been denied his sixth amendment right to the effective assistance of counsel:

1) Although appellant, who failed to (meet bail, was accepted for pretrial custody by Black Man’s Development Center on October 12, counsel did not file a bond review motion until November 9. Even then, the motion did not mention the third party custody arrangement, and was filed in the wrong court. On November 13, DeCoster wrote to the court indicating that counsel had promised he would file a motion for his release. On December 8, counsel filed a motion in the proper court and defendant was released.

2) It appears that defense counsel (who is not counsel on appeal) announced “ready” although he was not prepared to go to trial. As appellant’s two day trial was about to begin, the following colloquy regarding the Government’s alibi demand notice occurred:

Court: All right, are you ready for trial? If you are can you give the names and addresses [of your alibi witnesses] to the prosecutor? Are you prepared to give the names and addresses ?.
Defense: No, at the present time I am not. . . .
Court: Well are you here for trial?
Defense: I am here for trial but if the court pleases, under the statute we have 20 days.
Court: Are you asking for a continuance ?
Defense: I would ask for a 4 or 5 day continuance for this trial which might give me an opportunity to give the prosecutor what we can in response to this notice.
Court: Well you did announce ready for trial, . . . and if you are going to rely on an alibi, then you must know the witnesses you are ' going to use as alibi witnesses. You announced ready.
* , -X- * -X- -X *
Court: [I]t seems to me that if you have your witnesses ready for trial there seems to be no reason why you shouldn’t be able to give the names of the people you intend to call as alibi witnesses at this time.
Defense: We will proceed without alibi witnesses. We will consider we don’t have any alibi witnesses.
Court: You will not rely on an alibi defense ?
Defense: That is correct.

3) Counsel apparently made no effort to inquire into the disposition of the cases against appellant’s two alleged accomplices. In fact, they had both already pled guilty before the same judge who was to sit on DeCoster’s ease. Thus, counsel agreed to waive a jury trial totally unaware that his client would; as the court pointed out, “be tried by a judge who has heard a portion of this evidence in connection with the other two defendants.” (The Government, however, refused to waive a jury trial.)

4) There are indications of a lack of communication between appellant and his trial counsel. When DeCoster personally requested the court to subpoena his two accomplices, counsel indicated that he had thought of calling them but “we have no address [sic] for them.” Appellant immediately responded that one of the men was at the D.C. Jail under sentence for. the' instant offense. The other man had recently been placed on probation, also for his involvement in the instant offense, by the same judge who was presiding over DeCoster’s cáse. This witness was never called.

Defendant informed the court, first be letter and then at the opening of trial, that he was dissatisfied with his appointed counsel. On the later occasion he pleaded:

Your honor, I feel that this case should be continued because this is, I can’t get proper representation that I should be getting.

His request was denied without inquiry into the basis of his claim.

5) The defense called only two witnesses: appellant and an alleged accomplice who contradicted appellant on a fundamental point. On direct examination, he placed DeCoster at the scene of the crime engaged in a fight with the victim at a time when DeCoster himself had testified he was at his hotel. This contradiction confused the defense case and stripped it of its credibility.

III

This court does not sit to second guess strategic and tactical choices made by trial counsel. However, when counsel’s choices are uninformed because of~~Tnadequate' preparation, a defendant-is denied the effective assistance of counsel. *8 The present record, as is typicaT~in cases raising a claim of ineffectiveness, poses more questions about counsel’s preparation and investigation than it answers. For example, it is unclear whether an informed tactical judgment or a lack of preparation was at the root of counsel’s inability to identify any alibi witnesses at the outset of trial, or his decision to call both DeCoster and his accomplice who contradicted him. Accordingly, the record is remanded for a supplemental hearing on counsel’s preparation and investigation, and appellant’s present counsel is given leave to file a motion for a new trial on remand.

IV

Since we remand for a determination of appellant’s claim, it is necessary to discuss the governing principles. The effective assistance of counsel is a defendant’s most fundamental right “for it affects his ability to assert any other right he may have.” The Supreme Court has observed, “if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel.”

The first major ineffectiveness ease in this Circuit was Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945). Applying a due process-fundamental fairness approach, we held the standard to be whether counsel’s incompetence rendered the trial a “farce and a mockery,” In Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967), we reconsidered Jones and held that the “farce and mockery” language was “not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness.” The rule announced in Bruce required a defendant to prove:

both that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . . 379 F.2d at 116-117.

In Bruce, the claim of ineffective assistance arose on collateral attack. In several cases since then, when the ineffectiveness issue was raised on direct appeal, the court has silently ignored the Bruce requirement that the defendant has a “heavy burden” to show prejudice, implying that a different test was applicable on direct appeal. United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970); Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971). Indeed, in Bruce itself the court pointed out that “a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for a new trial either by the District Court or by this court on direct appeal.” 379 F.2d at 117; accord Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970). Since these decisions leave uncertain the correct standard to be applied when the question of ineffectiveness is raised on direct appeal, we now address that issue.

In this regard we are mindful that there have been several important developments since Bruce. The test there, with its requirement of a “heavy burden” to show “unfairness,” appears to. rest on the theory that an ineffectiveness claim is grounded in the due process clause. Since then, however, the Supreme Court has implied, and this court has explicitly held, that effective assistance, like the right to counsel itself, derives not only from the due process clause, but from the sixth amendment’s “more stringent requirements.” Consistent with this recognition the Court has continued to repeat that the purpose of counsel is to “preserve the adversary process” and that counsel must act “in the role of an active advocate in behalf of his client.” In the guilty plea context, the Court has held that the accused’s right to effective assistance is the right to “reasonably competent” representation. And the Third, Fourth, and Fifth Circuits have already realized that there is no reason to require less when the accused does not plead guilty. Accordingly, we adopt the following standard: a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate

Since “reasonably competent assistance” is only a shorthand label, and not subject to ready application, we follow the approach adopted by the Fourth Circuit and set forth some of the duties owed by counsel to a client :

In General — Counsel should be guided by the American Bar Association Standards for the Defense Function They represent the legal profession’s own articulation of guidelines for the defense of criminal cases.
Specifically — (1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client.
(2) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them. Many rights can only be protected by prompt legal action. The Supreme Court has, for example, recognized the attorney’s role in protecting the client’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), and rights at a line-up, United States v. Wade, 388 U.S. 218, 227 [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967) Counsel should also be concerned with the accused’s right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pre-trial psychiatric examination or for the suppression of evidence.
(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that “all available defenses are raised” so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not. only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research.

If a defendant shows a substantial violation of any of these requirements he has been denied effective representation unless the government, “on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.” Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968). Two factors justify this requirement. First, in our constitutionally prescribed adversary system the burden is on the government to prove guilt. A requirement that the defendant show prejudice, on the other hand, shifts the burden to him and makes him establish the likelihood of his innocence. It is no answer to say that the appellant has already had a trial in which the government was put to its proof because the heart of his complaint is that the absence of the effective assistance of counsel has deprived him of a full adversary trial.

Second, proof of prejudice may well be absent from the record precisely because counsel has been ineffective. For example, when counsel fails to conduct an investigation, the record may not indicate which witnesses he could have called, or defensesNhe could have raised.

y

Much of the evidence of counsel’s ineffectiveness is frequently not reflected in the trial record (e. g., a failure to investigate the ease, or to interview the defendant or a witness before trial). As a result, ineffectiveness cases have often evolved into tests of whether appellate judges can hypothesize a rational explanation for the apparent' errors in the conduct of trial. But neither one judge’s surmise nor another’s doubt can take the place of proof. Thus, when a claim of ineffective assistance is contemplated, it should first be presented to the district court in a motion for a new trial. In such proceeding, evidence dehors the record may be submitted by affidavit, and when necessary the district judge may order a hearing or otherwise allow counsel to respond. If the trial court is willing to grant the motion, this court will remand. If the motion is denied, the appeal therefrom will be consolidated with the appeal from the conviction and sentence. The record of any hearing held on the motion, and any documents submitted below, will become part of the record on appeal.

Record remanded.

MacKINNON, Circuit Judge,

concurring in part and dissenting in part:

I concur generally in the standards outlined in Judge Bazelon’s opinion for dealing with cases where inadequate assistance of counsel may be claimed; however, it does not appear to me that this is such a case. An analysis of the points stated in the majority opinion include material that is irrelevant to the conviction, inconclusive, self-contradictory and unpersuasive.

In addition, I do not concur in the conclusion that the burden in such cases to prove non-prejudice shifts to the Government. Such proof is usually more within the ability of the accused, if such evidence exists at all, and it would place an unfair burden on the Government to impose that task upon it. For instance, the accused could frustrate the Government’s effort in many instances merely by claiming his privilege against disclosing some facts on the ground that they might incriminate him.

Also the usual statement of “ineffective” assistance of counsel seems to me to imply a false standard that a counsel must be effective. That is a hard task for defense counsel in a criminal case. I believe the proper- requirement is that he be “adequate” to the task. Hence I would use the phrase “inadequate assistance of counsel.” I thus dissent to the above extent.

      . Appellant also contends that since his alleged accomplices only pled guilty to robbery he cannot be convicted of aiding and abetting an armed robbery and an assault with a deadly weapon. This seeming paradox — an aider and abetter without a principal — is but a necessary result of the irrationality of plea bargaining. See, e. g., Cross v. United States, 122 U.S.App.D.C. 380, 354 F.2d 512 (1965) ; cf. Bazelon, New Gods for Old: “Efficient” Courts in a Democratic Society, 46 N.Y.U.L.Rev. 653, 663-68 (1971).
      We also find that there was sufficient evidence for a jury to conclude that a weapon was used in the alleged robbery.

      . A charge of assault with a dangerous weapon is a lesser included offense to a charge of armed robbery arising from the same act or transaction. United States v. Johnson, 156 U.S.App.D.C. 28, 475 F.2d 1297 (1973) ; United States v. Benn, 156 U.S.App.D.C. 180, 476 F.2d 1127, 1132 (1972). Since appellant was convicted on both counts, the assault conviction is vacated.

      . The 20 days had not yet run by the opening day of trial.

      . An inquiry by the court into the source of defendant’s dissatisfaction with his attorney might have been useful to the trial judge in meeting bis responsibility “to maintain proper standards of performance by [defense] attorneys,” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), and thereby avoiding a later claim of ineffectiveness.

      . See generally Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) (en banc).

      . See, e. g., United States v. Brown, 156 U.S.App.D.C. 177, 476 F.2d 933 (1973) ; United States v. Benn, 156 U.S.App.D.C. 180, 476 F.2d 1127, 1135 (1973). See also United States ex rel. Kent v. Maroney, 435 F.2d 1020 (3rd Cir. 1970) ; Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970) ; United States ex rel. Williams v. Follette, 408 F.2d 658, 660 (2d Cir. 1969), rev’d on other grounds sub nom., McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ; United States ex rel. Thomas v. Zelker, 332 F.Supp. 595, 600-601 (S.D.N.Y.1971).

      . If the court below finds that a new trial is required, this court should be advised and we will remand the case.

      . Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956).

      . McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). See also Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ; cf. Johnson v. Zerbst, 304 U.S. 458, 462—463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

      . See also Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281, 284-285 (1967).

      . See, e. g., Wade v. United States, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970).

      . See Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc).

      . United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

      . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). See also Suggs v. United States, 129 U.S.App.D.C. 133, 391 F.2d 971 (1968).

      . McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

      . Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) (en banc) (“general requirement of normal competency”). See also United States ex rel. Green v. Rundle, 452 F.2d 232 (3rd Cir. 1971).

      . While not adopting a specific standard of “reasonable competence” the Fourth Circuit has set forth specific duties of counsel which suggest this level of representation. Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). See note 22 infra.

      . United States v. Hayes, 444 F.2d 472 (5th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 210, 30 L.Ed.2d 163 (1971) (“reasonably likely to render and rendering reasonably effective assistance”). See also West v. Louisiana, 478 F.2d 1026, 13 Crim.L.Rep. 2226 (5th Cir. 1973).

      . See also In re Saunders, 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472 P.2d 921 (1970) (en banc).

      . There is reason to believe that defendants are not now generally receiving this level of assistance. See, e. g., Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971) ; United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970). See generally, Bazelon, The Defective Assistance of Counsel, 42 U.Cinn.L.Rev. 1 (1973) ; materials cited in id. at 8 n. 29; Tamm, Advocacy Can Be Taught—The N.I.T.A. Way, 59 A.B.A.J. 625 (June, 1973).
      It is important to stress that the issue in ineffectiveness cases is not a lawyer’s culpability, but rather his client’s constitutional rights. Compare Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 793 (1958), with id. at 795 (dissenting opinion). Even the best attorney may render ineffective assistance, often for reasons totally extraneous to his or her ability. See United States v. Price, 141 U.S.App.D.C. 149, 436 F.2d 303, 304-305 (1970) (Bazelon, C. J., dissenting) ; Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43, 51 (1965) (separate opinion of Bazelon, C. J.).

      . Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968) :
      Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.

        See also State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973) (ABA Standards for the Defense Function adopted as “partial guidelines for the determination of effective representation.”).

      . The duties articulated herein are meant ns a starting point for the court to develop, on a case by case basis, clearer guidelines for courts and for lawyers as to the meaning of effective assistance. See, e. g., United States v. Martin, 155 U.S.App.D.C. 359, 475 F.2d 943, 952-956 (1973) (dissenting opinion of Chief Judge Bazelon suggesting that ineffectiveness of counsel at sentencing, defined by reference to the ABA Standards, should be remedied by a remand for resentencing) ; cf. United States v. Johnson, 156 U.S.App.D.C. 28, 475 F.2d 1297 (1973) (ineffectiveness at sentencing).

      . American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Defense Function (App. Draft 1971). These standards are the product of a comprehensive study by a distinguished committee chaired by the Chief Justice of .the United States, and have been approved by the ABA’s House of Delegates.

      . While the Standards claim that they are not intended “as criteria for judicial evaluation of effectiveness,” id. at § 1.1(f), they are certainly relevant guideposts in this largely uncharted area.

      . People v. Shells, 4 Cal.3d 626, 94 Cal.Rptr. 275, 483 P.2d 1227 (1971) ; cf. Hawk v. Olsen, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945).

      . See Amsterdam, Segal & Miller, Trial Manual for The Defense of Criminal Cases §§ 35-37 (1967) ; cf. Marshall v. United States, 141 U.S.App.D.C. 1, 436 F.2d 155 (1970).

      . See generally, ABA Standards, Pretrial Release (App. Draft 1968).

      . United States v. Morgan, 157 U.S.App.D.C. -, 482 F.2d 786 (1973) ; In re Saunders, 2 Cal.2d 1033, 88 Cal.Rptr. 633, 472 P.2d 921 (1970) (en banc) ; Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967) ; People v. Bennett, 29 N.Y.2d 462, 329 N.Y.S.2d 801, 280. N.E.2d 637 (1972).

      . See, e. g., Government of Canal Zone v. C., 479 F.2d 1253 (5th Cir. 1973) ; People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963).

      . See United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), quoting United States v. Bennett, 409 F.2d 888 (2d Cir. 1969).
      Investigation and preparation require that counsel have adequate time. Hawk v. Olson, 326 U.S 271, 278, 66 S.Ct. 116, 90 L.Ed. 61 (1945). See Calloway v. Powell, 393 F.2d 886 (5th Cir. 1968) ; Townsend v. Bomar, 351 F.2d .499 (6th Cir. 1965) ; cf. United States v. Ash, 413 U.S. 300, 326, 93 S.Ct. 2568, 2581, 37 L.Ed.2d 619 (1973) (Brennan, J. dissenting).

      . See 18 U.S.C. § 3500 (1970) (Jencks Act) ; Fed.R.Crim.P. 16(c) ; cf. Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966) ; ABA Standards for the Defense Function § 4.1 (App.Draft 1971).

      . See People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963) ; In re Williams, 1 Cal.3d 168, 81 Cal.Rptr. 784, 460 P.2d 984 (1969).

      . See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc) ; cf. United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

      . See generally United States v. Thompson, 155 U.S.App.D.C. 347, 475 F.2d 931 (1973).

      . Compare United States v. Benn, 156 U.S.App.D.C. 180, 476 F.2d 1127, 1133-1136 (1972) (opinion of Chief Judge Bazelon), with id. at 1136-1137 (opinion of Judge Wilkey). See Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729 (1958).

      . United Staes ex rel. Kent v. Maroney, 435 F.2d 1020 (3d Cir. 1970).

      . Fed.R.Crim.P. 33; United States v. Brown, 156 U.S.App.D.C. 177, 476 F.2d 933 (1973) ; United States v. Thompson, 155 U.S.App.D.C. 347, 475 F.2d 931 (1973). See United States v. Smallwood, 154 U.S.App.D.C. 387, 473 F.2d 98 (1972) (Bazelon, Chief Judge, concurring) ; Marshall v. United States, 141 U.S.App.D.C. 1, 436 F.2d 155, 159 n. 11 (1970).

      . United States v. Thompson, 155 U.S.App.D.C. 347, 475 F.2d 931 (1973).

      . See ABA Standards for the Defense Function § 8.6(c) (App.Draft 1971). The trial judge might, for example, ask the trial attorney to submit an affidavit in response to the petitioner’s allegations before deciding whether a hearing is indicated.

      . United States v. Benn, 156 U.S.App.D.C. 180, 476 F.2d 1127, 1135 (1972) ; Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349, 350 (1952).


author: PER CURIAM:

text:
    UNITED STATES of America v. Michael H. HINKLE, Appellant.
    No. 72-1990.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 5, 1973,.
    Decided Nov. 7, 1973.
    Rehearing Denied Dec. 4, 1973.

      Robert L. Weinberg, Washington, D. C., and John F. Mathews, appointed by this Court, for appellant.
    Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Warren L. Miller, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   PER CURIAM:

Appellant was indicted for second degree murder. The evidence showing that Hinkle stabbed the decedent was undisputed. Hinkle, himself, testified that he had no recollection of the events that took place on the evening in question because he was intoxicated. His defense rested on claims of self-defense, provocation, lack of malice, and a contention that the fatal wound was not the one he administered, but one that occurred during the surgery occasioned by the initial wound. The jury found him guilty as charged, and he was sentenced to five to twenty years, to run concurrently with sentences in two other cases.

On appeal, Hinkle raises several challenges to his conviction: failure to hold a coroner’s inquest into the cause of death; improper jury instructions on the definition of malice; failure to allow the jury to consider appellant’s intoxication in deciding whether he acted with sufficient “recklessness” to justify a finding of second degree murder; and failure to grant a subpoena duces tecum for production of the deceased’s juvenile records.

We do not address the issues of whether appellant’s first and last contentions constitute error, for we find that even if they were error, in the context of this case they were harmless. Although appellant was entitled to a coroner’s inquest, Crump v. Anderson, 122 U.S.App.D.C. 173, 352 F.2d 649 (1965), the likelihood that the inquest if held would have produced evidence tending to exculpate him is so remote that we see no justification for reversing, and in effect (since a coroner’s inquest is now impossible), dismissing his homicide charge. Similarly, even if Hinkle were entitled to subpoena the deceased’s juvenile records, it seems inconceivable that they would be of any assistance to him. He claims that they might show prior acts that indicate' a propensity toward violence, and thereby buttress his claim of self-defense. But appellant’s case on self-defense was virtually non-existent, and thus it does not appear that he was harmed by being denied the juvenile records.

Appellant’s claim that the trial court gave an improper jury instruction on malice is a troubling one. He requested the proper instruction as set forth in our decision in United States v. Bush, 135 U.S.App.D.C. 67, 416 F.2d 823 (1969) . Bush prohibited use of the phrase “ ‘malice’ is a state of mind showing a heart regardless of social duty,” and in subsequent cases we have advised that the Bush instruction should be used “to avoid a claim of reversible error.” Carter v. United States, 141 U.S.App.D.C. 259, 437 F.2d 692, 697 (1970) . In the face of these decisions, defense counsel’s request, and his subsequent objection, the court still gave the improper “social duty” instruction. The Government now admits that the court’s instruction was error, but argues it was harmless. We are concerned that the court would simply ignore the proper instruction in these circumstances, but since death was caused by a knife wound, we do not find that appellant was harmed by the erroneous instruction. We hope that in the future, trial courts do not place us in this sort of difficult situation.

We take this occasion to amplify on Bush by condemning interrelated portions of the “old” standard instruction :

“Malice” is a state of mind showing a heart regardless of social duty, a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit.

In Bush, as indicated above, we set forth the need for eliminating the phrase whereby any violation of “social duty” or “duty” might be equated to malice, even though not dangerous to life or limb. On further reflection, we conclude that similar problems of over-réach are presented by the segment that defines malice in terms of “a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit.” Juries are to determine whether specific acts have been committed with requisite culpability, not whether defendants have generally depraved, wicked and malicious spirits. A sound replacement for the original sentence would be simply this:

“Malice” is a state of mind showing a heart that is without regard for the life and safety of others.

Here again we recognize that there are eases where the old instruction could lead a jury to misconstrue its role or be otherwise prejudicial; however, the facts before us do not present such a case. Although we do not reverse Hin-kle’s conviction, we trust that our comments on the deficiency of the old “standard” instruction will be given heed.

Appellant also alleges error in the failure of the trial court to instruct the jury as to the difference in the nature of recklessness required for second degree murder, and that required for manslaughter. Although we do not foreclose consideration of this issue in an appropriate case, the facts here do not justify serious consideration of the matter at this time.

Otherwise we find appellant’s trial without error. His conviction is therefore

Affirmed.

      . The office of coronor and the statutory requirement of an inquest have been abolished in the District of Columbia.

      . See Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960).

      . See also United States v. Lumpkins, 141 U.S.App.D.C. 387, 439 F.2d 494 (1970).

      . See United States v. Johnson, 140 U.S.App.D.C. 54, 433 F.2d 1160, 1164 n. 27 (1970) ; United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952, 958 (1972).


text:
    UNITED STATES of America v. Charles McGILL, Appellant.
    No. 73-1028.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 25, 1973.
    Decided Nov. 9, 1973.
    Rehearing Denied Dec. 4, 1973.
    Stewart L. Pittman, Washington, D. C. (appointed by this court), for appellant.
    Steven R. Schaars, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John E. Drury III, Asst. U. S. Attys., were on the brief for appellee.
    Before TAMM, MacKINNON and ROBB, Circuit Judges.
   PER CURIAM:

By a jury verdict appellant was found guilty of armed robbery and of assault with a dangerous weapon. The court adjudged concurrent sentences of imprisonment of five to fifteen years on the armed robbery conviction and of three to ten years on the conviction of assault with a dangerous weapon. We vacate the judgment entered on the armed robbery conviction and affirm the judgment on the charge of assault with a dangerous weapon.

The statute of the District of Columbia which defines the crime of robbery and fixes the authorized punishment for its violation provides:

§ 22-2901. Robbery.
Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty'of robbery, and any person convicted thereof shall suffer imprisonment for not less than two years nor more than fifteen years.

D.C.Code § 22-2901 (Supp. V 1972). An additional statute defines “robbery,” “larceny” and “assault with intent to . . . commit . . . robbery” as “crime [s] of violence” and provides additional authorized punishment for violations thereof when any such offense is committed by a person “when armed with or having readily available any pistol or other firearm, etc. . . .” D.C.Code §§ 22-3201, 3202.

Appellant in the instant case was charged under these statutes with the crime of armed robbery in an indictment which alleged:

On or about December 21, 1971, within the District of Columbia, CHARLES McGILL, while armed with a dangerous weapon, that is, a pistol, by force and violence and against resistance and by putting in fear, stole and took from the person and from the immediate actual possession of' William Arrington, property of William Arrington, of the value of about $231.00, consisting of $216.00 in money, one wallet of the value of about $15.00, and keys.

It is elementary under such an indictment for robbery that the Government must prove “[a]ssault and larceny.” It has been said:

In the absence of statutory modification, the constituent elements of the offense of robbery are (1) a felonious taking, (2) accompanied by an aspor-tation, of (3) personal property of value (4) from the person of another or in his presence, (5) against his will, (6) by violence or by putting him in fear, (7) animo furandi [the intention to steal].

2 Wharton, Criminal Law and Procedure § 545 (12th ed. 1957) (footnotes omitted). We see no statutory modification here that would alter these basic elements for the crime, but presently we are only concerned with the alleged failure of the Government to prove (1) the taking and (2) asportation of (3) property of value.

When we consider the evidence in the light most favorable to the Government, as we must, we find that the evidence of record proves only that the victim had $231.00 in his pocket, and was carrying four or five Christmas packages when he was confronted by two men who held a gun on him and went through his pockets, and he testified that he told a policeman a few minutes later “I just been robbed.” There is absolutely no evidence as to whether the robbers found the money in his upper pocket, and if they did, whether they stole it. The indictment charged a taking of money, a wallet and keys but the record is devoid of any evidence that any of these items were taken or carried away. The Government would have us rely upon the circumstantial evidence that he had $231 in his (upper) pocket, and there was proof that the robbers went through his pockets, *and his subsequent statement to the policeman that he was “robbed”; but this proof falls short of proving a definite taking and asportation of any specific items having any specific value. He could have been robbed of the Christmas presents, or .other articles of value, which would have been a variance from the crime charged. In short, the Government’s case was completely deficient of any evidence which would warrant a conclusion beyond a reasonable doubt that any property was stolen as the indictment alleged. These deficiencies in the evidence are fatal to a valid conviction. The Government’s evidence is very strong on the holdup, the assault, the use of the gun, and putting the victim in fear, but it is completely deficient in the other necessary specific items of proof pointed out above.

The opening statement of the prosecutor to the jury was very clear on what evidence the Government proposed to introduce. He stated, inter alia:

Mr. Arrington pulled out his wallet and turned over the $151 that he had just received from his check, and the bonus. He turned it over and gave it to this man.

Supp. Tr. 5. But no such evidence was introduced at trial.

The closing argument of the prosecutor also referred to facts which were not in evidence:

They took his money . . . And he had all his money taken from him

Supp. Tr. 10, 16. In other words, the Government’s contention adds up to an assertion that an indictment charging a robbery of $231 is proved by evidence that the alleged victim had $231 in his pocket (and Christmas presents) and that he told a policeman: “I just been robbed.” Clearly, more specific evidence is necessary.

This state of the record leaves us no recourse but to reverse the judgment on the robbery count (first count) with the attendant prison sentence of five to fifteen years. However, we affirm the judgment on the third count, i. e., the charge of assault with a dangerous weapon.

Judgment accordingly.

      . D.C.Code §§ 22-2901, 3202.

      . Id. § 22-502.

      . 2 Wharton, Criminal Law and Procedure § 545 (12th ed. 1957).

      . Tr. 11, 12.

      . Id. at 12.

      . Id. at 13.

      . Id. at 13-14, 26-28, 33.

      . Id. at 14.

      . Id. at 15.

      . The closest approach to this necessary element is the following testimony:
      And then one pulled a gun; one got behind me; and one pulled a gun and stood in front of me and put the gun between my legs; and stood up close to me and started going through my things; and told me if I move, they would kill me.
      Q Where if anywhere did his hands go about your body?
      A Well, the man behind went through my back pockets. The man in front went through my front pockets and my top pocket.
      * * * * *
      Q What finally happened after they had gone through your pockets ?
      A They told me, if I would holler or anything — they run across the street and disappeared.
      Q Now, do you remember the type of gun that they had on you?
      A It looked like a Luger. It was down between my legs.
      Tr. 13-14. Thus, there was no testimony that any money or anything was taken.

      . Id.

      . The victim testified further:
      I was running down the middle of the street and I saw Officer Rafferty in the car; and I approached him; and I was in the middle of 16th Street; and I stood in front of all the traffic, in the corner; I was really shaking then.
      Q What if anything did you do then?
      A I told him: T just been robbed. Excuse me. The fly of my pants was tore open and the buttons on the top of my coat was torn.
      They put me in the car and they drove me back to the scene of the crime.
      Tr. 14-15. See also Tr. 22. On another occasion the victim testified obliquely to the robbery, stating: “After they robbed me, no, sir” (Tr. 33), but again tliis did not refer to any specific items or to anything for which a value could have been inferred.

      . Cf. Hunt v. United States, 115 U.S.App.D.C. 1, 4, 316 F.2d 652, 655 (1963).


text:
    Ida BROWN et al., Appellants, v. Joseph YELDELL et al.
    No. 72-1847.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 8, 1973.
    Decided Nov. 29, 1973.

      Peter J. Hoagland, Washington, D. C., with whom Marilyn Cohen, Washington, D. C., was on the brief for appellants.
    Leo N. Gorman, Asst. Corp. Counsel Washington D. C., for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief for appellees.
    Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and KAUFMAN, United States District Judge for the District of Maryland.

       Sitting by designation pursuant to 28 U.S.C. § 292(c).

   PER CURIAM:

These appeals are from denials of both appellants’ writs of habeas corpus by the District Court. 28 U.S.C. § 2241 et seq. Appellant Brown in 1967, and appellant Johnson in 1963, were committed as “dependent wards of the court,” 11 D.C.Code § 1551 (1967), by what was then called the District of Columbia Juvenile Court. Pursuant to their commitments, appellants were eventually sent to the Cedar Knolls School, a facility for delinquent youths. After the D.C. Court Reorganization Plan of 1970, Pub.L. 91-358, 84 Stat. 473, those designated “neglected children” (the new statute’s equivalent of “dependent wards”) could not be confined in the same facility as “delinquent children.” 16 D.C.Code 2320(b). As a result, Judge Braman of the D.C. Superior Court ordered, sua sponte, a hearing regarding the continued detention of appellants, and others similarly situated, at Cedar Knolls. In a hearing before Judge Ryan of the Family Division of the Superior Court, appellants were recommitted for two years as “Children In Need of Supervision” (CINS), and sent to the Maple Glen School. (The CINS classification was created under the Court Reorganization Act as an intermediate category between “neglected” and “delinquent” children. 16 D.C.Code § 2301.) Apellants were not notified of the hearing, nor were they present. They, and several others, were “represented” by an attorney who had been appointed shortly before the hearing, and who acquiesced in all the CINS dispositions.

Appellants then filed writs of habeas corpus in D.C. Superior Court alleging that their CINS commitments were in violation of their constitutional and statutory rights. The Superior Court dismissed their writs. On appeal, the D.C. Court of Appeals affirmed the dismissal. It found that the hearing which classified appellants as CINS “was one not required by law,” and therefore they “must be viewed as continuing in the [dependent ward] status previously determined by the Juvenile Court.” I.B. v. D.C. Dep’t of Human Resources, D.C.App., 287 A.2d 827, 829-830 (1972).

Appellants next moved for writs of habeas corpus in the United States District Court for the District of Columbia alleging that their commitments as CINS were in violation of their fifth amendment rights to notice and their sixth amendment rights to be present at the hearing. The District Court summarily denied their writs without stating its reasons.

We affirm the District Court’s denial of appellants’ petitions because their constitutional claims are unavailing in light of the decision by the D.C. Court of Appeals. -Appellants maintain that they continued to suffer harm as a result of the CINS adjudication, despite the D.C. Court of Appeals -decision. They contend that they were confined in a facility in which they could not hav.e otherwise been kept, and appellant Brown claims that her commitment was extended seven and one half months because of the order issued pursuant to the hearing. The proper remedy in these circumstances, as the opinion of the D.C. Court of Appeals noted, was “an appropriate action delineating the issues” in Superior Court. 287 A.2d at 830. In any event, appellants suffer no present harm cognizable by a writ of habeas corpus. The two year commitments ordered at the inoperative CINS hearing have now lapsed. And, since their CINS status was invalidated by the D.C. Court, they can suffer no adverse “collateral consequences” as a result of that designation. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

Affirmed.