author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. William James HENRY, Appellant.
    No. 73-1904.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 22, 1974.
    Decided Oct. 23, 1974.
    Rehearing Denied Dec. 9,1974.

      Charles D. McAtee, of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for appellant.
    Bruce E. Miller, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., with him on the brief), for appellee.
    Before HILL, SETH and MC-WILLIAMS, Circuit Judges.
   SETH, Circuit Judge.

William James Henry appeals from a judgment entered on a verdict of guilty of one count of violating 18 U.S.C.App. § 1202(a)(1). The defendant raises four major points in this appeal attacking his conviction: (1) that the statute, 18 U.S.C.App. § 1202, making it unlawful for a person with a felony conviction to possess a firearm, is unconstitutional in that it violates equal protection; (2) that certain evidence should have been excluded as the result of an unconstitutional search and seizure; (3) the indictment is duplicitous and was materially altered by the trial judge; and (4) several objections are raised to the instructions given to the jury.

The defendant had been convicted of a felony, and was employed by a bail bondsman in Topeka, Kansas. While apprehending a bond-jumper for whom he held a bench warrant, Henry carried a Smith and Wesson revolver which he had obtained from the bonding company’s office. During his scuffle with Randy DeHart, the bond-jumper, the gun discharged, but no one was injured. This gun had been manufactured in Massachusetts and initially shipped to California from the factory. Two police officers observed the scuffle, heard the shot, and saw the gunsmoke. They went to the scene, where they found Henry in or entering the driver’s seat of his ear and DeHart handcuffed on the passenger side next to him. One of the officers then drew his own weapon, and asked Henry to hand over his gun, although he could not see the gun at that time. The two officers recognized Henry as they approached the ear, and they knew him to be a bail bondsman. One also knew there was a warrant out for DeHart’s arrest. DeHart was taken into custody by the officers, who also took the gun they had taken from Henry to the station for an NCIC cheek. Henry followed the officers to the station, and the gun was returned to him after the check revealed nothing.

A few days after the above incident, the defendant was indicted for a violation of 18 U.S.C.App. § 1202(a), which reads in part:

“Any person who—
“(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

Trial was held, and judgment entered on a jury verdict of guilty.

The defendant attacks the constitutionality of 18 U.S.C.App. § 1202(a) as denial of equal protection under the due process clause of the Fifth Amendment. He relies on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. In Bass the Court held that a nexus with interstate commerce was an essential element of a prosecution under section 1202(a), whether defendant is charged with possessing, receiving, transporting, or a combination thereof. In explaining that the phrase, “in commerce, or affecting commerce,” modifies possesses and receives as well as transports, the Court also described these as three offenses. This language provides a part of the basis for the appellant’s second point on appeal.

Appellant argues that by requiring a nexus with commerce for a possession to be in violation of section 1202(a), Congress has created two classes of convicted felons to whom the statute does not apply equally. He claims that a felon who possesses a gun manufactured in the state of possession is not in violation of section 1202(a), whereas a felon who possesses a gun manufactured in another state is subject to section 1202(a) since the gun has traveled in interstate commerce to reach the state of possession. This argument, of course, considers the effect or application of the statute generally, and not the internal construction of the Act.

The nexus specified in section 1202(a), traveling “in commerce” or “affecting commerce,” is of course a jurisdictional one. The hypothetical felon in Henry’s argument who possessed a gun which had never left the state would be subject to prosecution under section 1202(a) if his possession were shown to “affect commerce.” The classification drawn is between possessions (receipts and transportations) of guns by felons which do affect commerce and those which do not. Thus the classification is acts which fall within the power of Congress to regulate, and acts which are beyond the power of Congress. This has been upheld as a reasonable basis for legislation which does not violate the principles of equal protection. Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643.

As to the search issue, Henry moved without success prior to trial to suppress all the evidence in the case on the ground that it was the fruit of an illegal search and seizure by the two officers. The trial judge found that the officers were justified in investigating the scuffle and in seizing the gun, relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Appellant also urges the Terry case in support of his contention.

Henry argues that the officers knew him to be a bondsman and knew that there was a warrant for DeHart’s arrest. His apprehension of DeHart was lawful, and the officers therefore had no reason to fear for their own safety, as in the Terry situation. Since Henry was not placed under arrest by the officers, the search and seizure cannot be justified as incident to a lawful arrest. The warrantless search and seizure, he urges, are therefore unreasonable under the Fourth Amendment.

In applying the principles of Terry to this case, we find that the officers were justified in stopping Henry and in “seizing” his weapon. Having seen a scuffle, heard a shot, and seen a puff of gunsmoke, these facts would obviously arouse and justify an inquiry into the incident by the officers. The officers were justified in asking for the weapon, and their knowledge that Henry was a bondsman and DeHart a bond-jumper does not alter this. It was certainly a possibility that the gun that discharged was not Henry’s. The officers never saw the gun until Henry produced it at their request. Terry allows a limited search for weapons that may be used to harm others as well as the officer in the context of the stop incident.

After the initial “stop,” Terry holds that the “frisk” or search must be separately justified, and must be reasonably related in scope to the circumstances justifying the “stop” in the first place. Having witnessed a scuffle in which a gun was discharged, the officers stopped Henry and found DeHart handcuffed in Henry’s car. We cannot say that it was unreasonable for the officers to take the precautions they did. Balancing the reasonableness of the search against the invasion of Henry’s privacy and person, we find that there was no violation of the Fourth Amendment proscription of unreasonable searches and seizures. We do not consider this to be the typical automobile situation although the defendant was apparently just getting into the car when the officers arrived. Also the Government does not urge there was an arrest to raise the problems of Gustaf-son v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, and Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325.

The defendant on appeal urges that the indictment is duplicitous. It in part charges the defendant as “. . . being a person who had been convicted by a court of the State of Kansas of a felony [who] did knowingly and unlawfully receive, possess or transport in commerce or affecting commerce a firearm, ...”

The proper way to attack a duplicitous indictment is by a motion to elect. Harris v. United States, 190 F.2d 503 (10th Cir.). Under Rule 12(b)(2), Fed.R.Crim.P., this is a motion which must be made prior to trial or it is waived. When the defendant entered his plea, he also filed motions to dismiss and to suppress evidence. He did not raise the question of a multiple charge in the indictment until the day of the trial, when he moved to delete the words, “receive,” “or transport.” If it be assumed this complies with the rule, we nevertheless do not find the indictment to be fatally defective.

The indictment alleges the essential elements of section 1202(a)(1), and under the standard in Smith v. United States, 273 F.2d 462 (10th Cir.), we must conclude that it did not hinder the defendant in the preparation of his defense since he did not raise the issue until the opening of the trial. Also for purposes of barring a future prosecution, it is the judgment and not the indictment alone which acts as a bar, and the entire record may be considered in evaluating a subsequent claim of double jeopardy. Robbins v. United States, 476 F.2d 26 (10th Cir.); Nunley v. United States, 339 F.2d 442 (10th Cir.); Flores v. United States, 338 F.2d 966 (10th Cir.). The case law supports the conclusion that he could not again be charged with any of the three, or any combination thereof. The indictment was sufficient, and does not provide any basis for relief from the conviction.

At the close of all the evidence, the trial judge announced that he was withdrawing the allegations in the indictment that the act was committed “knowingly” or “unlawfully” from the jury’s consideration. The jury was instructed that these allegations were mere sur-plusage, and that their verdict should be based on the remaining portions of the indictment which were read to them.

Although “knowingly” and “unlawfully” are not elements of the statute, appellant contends that they cannot be stricken from the indictment without materially altering the offense charged. We have held that mere surplusage in an indictment can be disregarded and the remainder of the indictment will be valid if sufficient remains to charge a crime. United States v. Archer, 455 F.2d 193 (10th Cir.); United States v. Harvey, 428 F.2d 782 (9th Cir.). The addition of an issue by careless drafting cannot give the defendant a windfall. The terms, “knowingly” and “unlawfully,” introduced an element which the statute does not require the prosecution to prove, and t hus is clearly surplusage.\

Appellant has raised numerous objections to the jury instructions which he asserts as error. We have examined those in detail and find no reversible error. Also we have considered the other issues raised by appellant and find them to be without merit.

The judgment is affirmed.


source: Caselaw Access Project

author: VAN DUSEN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Jose Juan SOTO, Appellant, v. UNITED STATES of America.
    No. 74-1042.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 20, 1974.
    Decided Oct. 24, 1974.

      Michael J. Izzo, Jr., Orlofsky, Cozen & Begier, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Kenneth A.. Richie, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from the district court’s denial of a motion under 28 U.S. C. § 2255 to vacate or set aside movant-appellant's sentence. Since the facts are set forth in the district court opinion, 369 F.Supp. 232, 233-234 (E.D.Pa.1973), only the facts most pertinent to the issues now before the court are recited here.

Movant, Jose Juan Soto, was indicted for aiding and abetting a sale of heroin in violation of 26 U.S.C. §§ 4704, 4705 and 18 U.S.C. § 2. When his case was called for trial at 2:30 P.M. on June 1, 1972, Soto’s appointed attorneys asked leave to withdraw as counsel on grounds that movant had “become displeased with [their] representation.” (N.T. 2). In presenting their motion to the court, counsel identified two bases for Soto’s dissatisfaction. First, he had “expressed . . . the feeling that they were not raising every constitutional claim which [they] might perhaps raise on his behalf.” (N.T. 2-3). Second, Soto had expressed resentment of, and resistance to, counsel’s requirement that movant telephone them once a day to determine whether his case had been called for trial. After counsel had argued their motion, the court engaged in a colloquy with Soto which revealed that he had made no arrangements to retain another attorney. 369 F.Supp. at 234, N.T. 3-9. The court thereupon denied counsel’s motion to withdraw, stating that a substitution of attorneys would be allowed in the event that Soto did obtain other counsel. Soto participated freely in the colloquy, volunteering that it was “impossible” for him to leave his truck and be in court on a moment’s notice. 369 F.Supp. at 239 n. 13. He offered no grounds for dissatisfaction other than those already advanced by counsel, though the court appeared willing to hear any and all reasons for such dissatisfaction. Having ruled on the motion to withdraw, the court immediately proceeded to allow Soto’s waiver of jury trial, “partly . . . because [Soto] indicated that [he] want[ed] to get this over with” and was inconvenienced by having the matter continued longer. Upon Soto’s affirmative response to the court’s inquiry whether “you want me to start right now; is that correct,” the case proceeded to trial. (N.T. 12). Testimony was heard until 7:30 P.M. on June 1, 1972, and resumed at 9:30 A.M. on June 2, 1972, to accommodate the trial court’s calendar. A verdict of guilty was announced by the court on June 2, 1972, and movant’s sentence was affirmed on appeal, sub nom. United States v. Santiago, 474 F.2d 1337 (3d Cir. 1972), cert. denied, Soto v. United States, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973). Soto then filed this motion under § 2255.

The crux of the § 2255 motion is that the trial court, by failing to advise appellant of his right to proceed pro se, deprived him of that right, thereby committing a “per se reversible error.” Ancillary to this claim is appellant’s contention that the trial court abused its discretion in denying appointed counsel leave to withdraw without either ascertaining from appellant the reasons for his dissatisfaction with counsel or granting, sua sponte, a continuance so that appellant could obtain substitute counsel or prepare his own defense. We reject all these contentions and affirm the district court order of November 15, 1973.

I.

At the outset, we must determine whether jurisdiction lies under 28 U.S.C. § 2255 to adjudicate appellant’s claim that he was denied the right to proceed pro se. In the recent case of Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (U.S., 1974), the Supreme Court held that a § 2255 proceeding was not limited to the resolution of constitutional claims, but was the proper vehicle for a prisoner to assert that his confinement was invalid due to a change in the law of the circuit. The Court noted that “the grounds for relief under § 2255 are equivalent to those encompassed by 2254, the general federal habeas corpus statute, under which relief is available on the ground that ‘a person is in custody ... in violation of the Constitution or laws or treaties of the United States.’ (Emphasis added).” 417 U.S. at 344, 94 S.Ct. at 2304, citing United States v. Hayman, 342 U.S. [205] at 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952). In sum, the remedy of § 2255 “is intended to be as broad as habeas corpus.” 417 U.S. at 344, 94 S.Ct. at 2304. The Government’s position, that “the petitioner’s claim [was] not ‘of constitutional dimension’ and thus [was] not cognizable in a § 2255 collateral proceeding,” id. at 342, 94 S.Ct. at 2303,

was emphatically rejected as inconsistent with the clear words of the statute. Id. at 343-345, 94 S.Ct. 2298.

Although the courts of appeals disagree over whether the right to represent oneself is constitutionally guaranteed, “there is no dispute that it is a fundamental right.” 369 F.Supp. at 235. The right, embodied in 28 U.S.C. § 1654, was set forth in the Judiciary Act of 1789 and has been consistently honored by the federal courts. Thus, even though we decide that there is no constitutional requirement that an accused be permitted to proceed pro se, see Part II, infra, the statutory right is sufficient to afford jurisdiction under the holding of Davis.

II.

After careful consideration, we reject movant’s contention that the Constitution guarantees a defendant the right to proceed pro se. See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1121 (1972); Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, 365 n. 2 (1959)

The Sixth Amendment provides that the accused in all criminal prosecutions “shall enjoy the right ... to have the assistance of Counsel for his defence.” In interpreting this language, the Supreme Court has repeatedly stressed that it is “an obvious truth” that a fair trial cannot be assured unless a defendant has counsel. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Argersinger v. Hamlin, 407 U.S. 25, 36-37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The central importance of competent legal counsel to the conduct of a fair trial has led the Court to require assistance of counsel at all “critical stages” in the trial process. See, e. g., Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).

By contrast, the right to pro se representation is only tangentially related to procuring a fair trial. The primary basis of the right “derives from the belief that respect for human dignity is best served by respect for individual freedom of choice.” 369 F.Supp. at 235-236. See also United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1128 (1972). Pro se representation may. at times serve the ideal of a fair trial better than representation by an attorney. Also, the individual’s freedom of choice and stake in the conduct of his own trial should, on occasion, prevail over society’s generalized interest in the trial process. See Comment, supra note 11, at 1479, 1481. Nevertheless, the right is one that is typically not essential to a fair trial, and, indeed, is generally an obstacle thereto.

The deficiencies of pro se representation as a means of protecting “the integrity of the process,” Mayberry v. Pennsylvania, 400 U.S. 455, 468, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), Burger, C. J„ concurring, prompted the American Bar Association to recommend that the trial judge “consider the appointment of standby counsel to assist the defendant when called upon and to call the court’s attention to matters favorable to the accused upon which the court should rule on its own motion.” A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Judge’s Role in Dealing with Trial Disruptions, 11-12 (1971). Such appointment of standby counsel was also recommended by Chief Justice Burger as a means of accommodating both the accused’s desire to represent himself and the public interest in the fairness of criminal trials. Mayberry, supra at 468, 91 S.Ct. 499. The vital role of counsel in protecting the rights of the accused, which is “a matter of public interest even if the accused has rejected professional assistance,” A.B.A. Project, supra at 12, leads us to reject Soto’s contention that the Sixth Amendment guarantees pro se representation.

Since the right, though important, is only statutory, we conclude that it is waived if not asserted. See Dougherty, supra, Adams, J., concurring, 473 F.2d at 1145; cases cited supra note 15; Williams v. United States, 389 F.2d 34 (2d Cir. 1967); 59 Calif.L.Rev. 1479, 1483 (1971). The trial judge is under no duty to advise any defendant that he may represent himself. Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, 365-366 (1959). This conclusion obviates any need to reach the question of prejudice. We therefore hold that the trial court committed no error in failing to suggest pro se representation as an alternative to the appointed counsel with whom Soto expressed displeasure.

III.

Movant also contends that it was error for the trial court to deny appointed counsel leave to withdraw without first asking Soto the reasons for his dissatisfaction with their representation. As the district court noted, Soto did not raise the issue of his dissatisfaction with counsel. Although he engaged in a colloquy with the court in which he amplified counsel’s statement that he resented checking with them daily to determine the time for trial, Soto never offered any reasons for dissatisfaction in addition to those expressed by counsel. The record clearly indicates both that Soto could have raised such additional objections and that he was not reluctant to express his views to the trial court. See N.T. 3-9. On this record, we affirm the district court’s holding that the obligation of the trial judge “to explore the sources of a defendant’s dissatisfaction with counsel” was discharged. 369 F.Supp. at 239. See also United States v. Young, 482 F.2d 993 (5th Cir. 1973); United States v. Morrissey, 461 F.2d 666 (2d Cir. 1972).

IY.

Finally, we consider Soto’s claim that his expression of dissatisfaction with appointed counsel obligated the trial court to declare, sua sponte, a continuance to enable Soto to obtain other counsel or to prepare his own defense.

Counsel described a slow deterioration in their relation with Soto that culminated in their motion for leave to withdraw. A week before the case was called for trial, Soto had complained about their conduct of his case to Puerto Rican fraternal and social agencies. See note 7, supra. Yet, by the day of trial, Soto had made “no arrangements” to procure other counsel, though he had ample time to do so. McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791 (1965); cf. United States v. McMann, 386 F.2d 611 (2d Cir. 1967). Moreover, there are strong indications in the record that Soto would have opposed a continuance. He had, for example, expressed great resentment over the inconvenience caused by holding himself available to go to trial on short notice. N.T. 5. He waived a jury and requested that his trial proceed immediately after the court’s ruling on counsel’s motion to withdraw, apparently because he was eager to conclude the matter. N.T. 12. Thus, Soto not only failed to request a continuance, he also encouraged expediting the trial. These facts do not suggest that the trial court abused its considerable discretion in refusing to discharge counsel and proceeding directly to trial. United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965); Juelich v. United States, 342 F.2d 29, 32, and cases cited n. 5 (5th Cir. 1965). Soto suggests that the district court improperly required that “good cause” be shown before a defendant is entitled to substitution of counsel. Although such a requirement might not be necessary in all circumstances, it certainly appears proper where, as here, no request for either substitute counsel or a continuance was made and no objection to counsel was expressed to the court prior to the day the trial started.

For the foregoing reasons, the judgment of the district court, denying Soto’s motion under 28 U.S.C. § 2255, will be affirmed.

      . 28 U.S.C. § 2255 provides :
      “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.”

      . 26 U.S.C. § 4704 provides:
      “(a) It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package . . . . ”
      26 U.S.C. § 4705 provides in pertinent part:
      “(a) It shall be unlawful for any person to sell ... or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold . . . or given, on a form to be issued . by the Secretary . . . . ”

      . 18 U.S.C. § 2 provides:
      “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as principal.
      “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

      . Marilyn Mauskopf, Esq., was appointed to represent Soto on August 4, 1971, following his indictment on April 29, 1971. On February 25, 1972, Aaron Blumberg, Esq., was appointed co-counsel by order of the court, in accordance with 18 U.S.C. § 3006A.

      . When the district judge stated that he was “certainly not favorably disposed to a motion to withdraw at this late stage,” N.T. 2, counsel responded that the motion was filed “approximately a day and a half ago,” at which time counsel “did believe that there was at least another week until the case would be called for trial.” Id. The motion, however, is stamped “Filed Jun 1 1972,” and the district judge had not seen the motion before the time set for trial. Id.

      . This “feeling” l.ad apparently been reinforced by Soto’s conference with other, unnamed “attorneys in New York City, who [had] informed him that [his appointed counsel had] not raised every claim . . . on his behalf . . . . ” (N.T. 3.). According to the motion for leave to withdraw, Soto “refused to provide counsel with the names and addresses of the New York lawyers” (see par. 6).

      . “Since Mr. Soto is a truck driver and unavailable all day, and since his case is high on the list of criminal cases about to be called for trial, counsel had requested Mr. Soto to telephone them daily in order to ascertain when his case would be called for trial.” Motion for leave to withdraw at par. 7. Soto had complained to Puerto Rican fraternal and social agencies that “counsel were treating him unfairly by requiring that he telephone them once a day.” Id. Counsel also stated that Soto had refused to telephone counsel. Id. at par. 8.

      . Before agreeing to accept the waiver of jury trial, the court stated that “if I take it I will probably have to work a little later tonight, because I have some time problems tomorrow that I have to concern myself with.” (N.T. 10).

      . The Government’s position was widely accepted before Davis. “The lower courts have been virtually unanimous in barring non-constitutional claims on § 2255 motions.” Bator, Mishkin, Shapiro and Weehsler, Hart and Wechsler’s The Federal Courts and the Federal System 1531 n. 8 (2d ed. 1973). Many commentators have read Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), as limiting § 2255 relief solely to constitutional claims. In Davis, Justice Stewart distinguished Sunal and Ilill on their facts in declaring that there was “no support in prior cases” for limiting § 2255 to constitutional claims. 417 U.S. at 345, 94 S.Ct. 2298. See generally, Developments in the Law — Federal Habeas ‘Corpus, 83 Harv. L.Rev. 1038, 1067-70 (1970).

      . 28 U.S.C. § 1654 provides:
      “In all courts of the United States t'..e parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.”

      . See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1122-1123 (1972) ; Comment, Self-Representation in Criminal Trials: The Dilemma of the Pro Se Defendant, 59 Calif.L.Rev. 1479 (1971) [hereinafter cited as Comment].

      . We have not overlooked other federal court decisions stating that the right to proceed pro se is a constitutional right. See United States v. Price, 474 F.2d 1223 (9th Cir. 1973) ; United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971) ; Lowe v. United States, 418 F.2d 100 (7th Cir. 1969) ; Juelich v. United States, 342 F.2d 29, 31 (5th Cir. 1965) ; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). These cases relied on dictum in Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942), stating that the “right to dispense with a lawyer’s help” is “correlative” to “the right to assistance of counsel.” The Court did not, however, say that this “correlative” right is guaranteed by the Constitution. Brown v. United States, 105 U.S. App.D.C. 77, 264 F.2d 363, 365 n. 2 (1959).

        Moreover, in Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), the Court specifically noted that “the ability to waive a constitutional right [such as counsel] does not ordinarily carry with it the right to insist on the opposite of that right.” We find Singer analogous since the right to counsel, like the right to jury trial, affects the fairness of the trial. See infra. But see Comment, id. at 1488-89. We are not persuaded by the reasoning of the cases finding a constitutional right to pro se representation and we decline to follow them.

      . A second basis is the need for confidence in the attorney-client relation. United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1128 (1972) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). See note 15 infra.

      . The Commentary to Standard C.3 (“Standby counsel for defendant representing himself”) includes this language (p. 12) :
      “Even if the defendant is permitted to represent himself at the trial, in all but the simj)lest trials — and perhaps even in those if resources permit — it will be prudent for the trial judge to arrange for standby counsel to be present at all times. . . . [T]he presence of such counsel . . . may also serve to protect the rights of the accused, a matter of public interest even if the accused has rejected professional assistance. The experience of those judges who have appointed standby counsel is that the pro se defendant often discovers, early in the trial, the value of counsel and will consent to being represented by the standby.”

      . We are not alone in finding that a constitutional right to proceed pro se and a constitutional right to counsel are incompatible. The Ninth Circuit, which recognizes both rights, recently acknowledged that “it is manifest that any such two constitutional rights cannot actively co-exist.” United States v. Dujanovich, 486 F.2d 182, 185 (1973). Because of the basic conflict between the two rights, especially given the standard for waiver of counsel, VonMoltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), both the Second and Ninth Circuits have devised guidelines for trial judges who would otherwise be put in the position of laying “an appeal or a collateral attack by either a denial or a granting of the request” to proceed pro se. Id. 486 F.2d at 184. See also Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir. 1965). For a graphic illustration of the difficulties posed by positing both rights as constitutional, see United States v. Rosenthal, 470 F.2d 837, 844-845 (2d Cir. 1972).

      . Even had we found the right to be constitutional, it would not follow that a defendant must be advised of it. See 369 F.Supp. at 236-238. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), holding that the police need not advise that consent to a search may be withheld. The Court pointed out that “[ajlmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” 412 U.S. at 237, 93 S.Ct. at 2053. Since the value promoted by pro se representation is primarily one of free choice, rather than the conduct of a trial fair to the defendant, see Dougherty, supra, 473 F.2d at 1128, the knowing waiver standard would not apply under Sohneekloth. It is true that Plattner, supra, recognized a subsidiary, trial-related function of the pro se right in recognizing that defense by counsel in whom defendant has no confidence may be less effective than lay defense, but in light of the reasoning of the right to counsel cases (see page 1343 above), this function may be of doubtful importance. See also 369 F.Supp. at 235 n. 7. But see Comment, note 11, supra at 1481, 1489.

      . Soto does not contend that his reluctance to cooperate with appointed counsel, motion for leave to withdraw, par. 8, constituted t’..e “good cause” sufficient to require a substitution of counsel. We note that both United States v. Pomeroy, 485 F.2d 272 (9th Cir. 1973), and United States v. Young, 482 F.2d 993 (5th Cir. 1973), suggest that'such “good cause” requires the existence of an “irreconcilable conflict.”


author: HAMLEY, Circuit Judge:

text:
    Eugene MASON, Petitioner-Appellant, v. STATE OF ARIZONA, A. E. Gomes, Superintendent, Arizona State Prison at Florence, Respondent-Appellee.
    No. 73-2266.
    United States Court of Appeals, Ninth Circuit.
    Oct. 3, 1974.
    Certiorari Denied Feb. 18,1975.
    See 95 S.Ct. 1145.

      Bruce Rinaldi (argued), of Post-Conviction Legal Assistance Clinic, University of Arizona College of Law, Tucson, Ariz., for petitioner-appellant.
    William J. Schafer, III, Asst. Atty. Gen. (argued), Phoenix, Ariz., for respondent-appellee.
   OPINION

Before HAMLEY, WRIGHT and KILKENNY, Circuit Judges.

HAMLEY, Circuit Judge:

Eugene Mason, incarcerated in Arizona State Prison under a life sentence for first degree murder, appeals a district court judgment denying his application for a writ of habeas corpus.

Mason, an indigent, was represented in the state criminal proceedings by court-appointed counsel. Several times prior to the trial Mason’s attorney moved for court appointment of an investigator. Counsel also sought an allowance of funds for travel expenses in connection with investigation of certain witnesses. These motions were denied, except that Mason’s attorney was allowed one hundred dollars for investigative expenses, and was advised to submit a claim for fifty dollars’ expense incurred in preparing interrogatories.

Mason contends on appeal that the failure of the state trial court to appoint an investigator to assist Mason’s counsel or to allow more public funds than were actually provided for the use of Mason’s attorney in conducting investigations: (1) denied Mason his rights to a fair trial, to the effective assistance of counsel, and to confront and cross-examine witnesses in violation of the Due Proc-: ess Clause of the Fourteenth Amendment, and (2) denied him equality of treatment with indigent defendants represented by the Maricopa County Public Defender’s office in violation of the Equal Protection Clause of the Fourteenth Amendment. We affirm.

Mason and Thomas Anthony Sanchez were jointly charged with the first degree murder of Charlie “Casey” Byrn on or about February 11, 1967. Byrn operated a bar in Phoenix, Arizona. On the night of his death, while carrying a roll of currency from the cash register, Byrn was struck down in a dark alley behind the bar by someone wielding an iron rod.

Mason and Sanchez were both originally represented by the Public Defender’s office of Maricopa County, Arizona. Following two preliminary hearings and the entry of pleas of not guilty by Mason and Sanchez, the Public Defender moved to withdraw as counsel for both defendants, because of an asserted conflict of interest between them. The state court granted the motion and appointed a separate private attorney to represent each defendant. Six weeks later, and with the consent of Mason, his court-appointed attorney was replaced by another court-appointed attorney.

On December 13, 1967, the attorneys for both Mason and Sanchez moved that the court provide them with copies of the transcripts of the two preliminary hearings. They also moved that each defendant be provided, at state or county expense, with an investigator skilled in the investigation of criminal cases. In a supporting memorandum, counsel stated, as justification for this motion, that the state had endorsed upon the information some twenty-three witnesses. A good many of these witnesses, counsel advised, were not police officers and some were out-of-state witnesses.

The court denied the motions. However, the court ordered that the transcripts of the preliminary hearings be made available to counsel for reasonable periods of time. In denying the motion for investigators, the state court observed that it had been advised that the investigative staff of the Public Defender’s office would be available to assist the defendants.

On January 26, 1968, Mason’s attorney again moved the state court to appoint an investigator to assist him, pointing out that the conflict of interest between Mason and Sanchez had precluded the Public Defender’s office from rendering investigative assistance. On February 9, 1968, the state court relieved the Public Defender’s office from investigative responsibilities insofar as Mason and Sanchez were concerned. The renewed motion by Mason’s counsel was taken under advisement.

On February 18, 1968, Mason’s attorney moved for a bill of particulars. On the following day, both defense attorneys requested that Maricopa County advance the cost of round-trip airline transportation to Sacramento, California, of two days’ lodging, and for hiring a motor vehicle. The purpose of the trip was to interview “Mr. Chamblin who is a material witness for the State in this case.” The motion also sought round-trip airline transportation to Gettysburg, Pennsylvania, lodging and vehicle expenses to interview “Mr. Roberts who is a material witness for the State in this case.” These expenses were stated to be necessary for defendants to “prepare properly for the trial of this case” and assure that the indigent defendants “are afforded the full protection and guaranty” of Article II, Section 24, Arizona Constitution, A.R.S., and the Sixth and Fourteenth Amendments of the United States Constitution.

On February 20, 1968, Mason’s attorney petitioned under Rule 195 of the Arizona Rules of Criminal Procedure, 17 A.R.S., for the production of seven items of evidence. At the hearing on the petition to produce, the state court explained that its ruling on the advancement of costs would depend on how much information the state would turn over to defense counsel. Following this hearing the prosecution was ordered to produce items (1) through (6) by March 11, 1968.

On March 4, 1968, the state court denied the motion for appointment of an investigator but ordered an advancement of costs in the amount of one hundred dollars to counsel for each defendant “to hire private investigators or as payment for their own investigation, whichever couinsel prefers.” On March 19, 1968, the court denied Mason’s motion for a bill of particulars but granted the application for issuance of a subpoena duces tecum to, and deposition of, the Sacramento Chief of Police.

On April 22, 1968, the state notified Mason’s attorney that it intended to call co-defendant Sanchez as a witness at the trial, and that the state would move at the time of trial to dismiss the charges against Sanchez. The answers and records requested by the interrogatories were returned on April 26, 1968. On April 29, 1968, the day before the trial, the state trial judge denied Mason’s request to review his motion for appointment of an investigator and advancement of costs. The court refused to take “testimony” on this renewed motion on the ground that the court had previously ruled on the motion. At this time the court also granted the state’s motion to dismiss the charges against Sanchez.

The trial commenced on April 30, 1968. The state called ten witnesses, the first seven of which testified to general information nearly identical to that which they had given at the first preliminary hearing. The state’s last three witnesses, Roberts, Williamson and Sanchez, presented testimony having the effect of directly linking Mason to the crime, through his purported statements and activities. The defense called two witnesses, Mr. Mischung (one of Roberts’ former employers) and defendant Mason. The district court found that the evidence against Mason was “overwhelming.” A jury verdict of guilty was followed by a judgment of conviction. On Mason’s appeal to the Arizona Supreme Court, his conviction was affirmed. State v. Mason, 105 Ariz. 466, 466 P.2d 760 (1970).

Mason contends that the denial of investigative services described above deprived him of his right to a fair trial, to the effective assistance of counsel, and to confront and cross-examine witnesses, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

In the state pre-trial proceedings, the efforts of Mason’s counsel to obtain investigative assistance were primarily directed to obtaining court appointment of an investigator. Counsel did seek an allowance for travel funds in order that he, himself, could interview certain prosecution witnesses. Implicit, moreover, in his request for appointment of a special investigator is the request that, if such an investigator cannot be appointed by the court, there should be at least a reasonable allowance of funds so that counsel could employ his own investigator.

The Supreme Court has found a violation of the Constitution in a number of circumstances where a defendant’s poverty has undermined his ability to defend himself. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held the Sixth Amendment right of an indigent to assistance of counsel applicable to the state criminal process through the Due Process Clause of the Fourteenth Amendment. The Court reaffirmed the earlier tenets sounded for federal defendants in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), stating:

“Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” 372 U.S. at 344, 83 S.Ct. at 796.

Barriers to appellate review for indigents have likewise been held violative of equal protection. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court required that indigents be furnished with transcripts in order for their appeals to be effective. The Court explained: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Id. at 19, 76 S.Ct. at 591. The decision in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), relied heavily on Griffin in holding that indigents must likewise be provided with counsel on appeal.

The principles steadfastly announced in the Supreme Court decisions reviewed above require us to hold that the effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys. United States v. Germany, 32 F.R.D. 421 (N.D.Ala.1963). See Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891, 899, notes 27, 28, 29 (1970); Christian v. United States, 398 F.2d 517, 519 note 7 (10th Cir. 1968). Cf. Bush v. McCollum, 231 F.Supp. 560 (N.D.Tex.1964), aff’d. 344 F.2d 672 (5th Cir. 1965).

The failure of the state to provide such assistance, when needed, results in ineffective trial representation.

Our holding denotes, however, that such assistance is not automatically mandatory but rather depends upon the need as revealed by the facts and circumstances of each case. In the nature of things it may be difficult, in advance of trial, for counsel representing an indigent defendant to demonstrate an undoubted need for such funds. However, he can at least advise the court as to the general lines of inquiry he wishes to pursue, being as specific as possible. He should also advise the court why it is not practicable for counsel himself to make the investigation, with or without the allowance of out-of-pocket expenses. If a reasonable showing of this kind is made, the state trial court should probably view with considerable liberality a motion for such pre-trial assistance. Cf. United States v. Schultz, 431 F.2d 907, 911 (8th Cir. 1970); Christian v. United States, 398 F.2d 517, 519-520 (10th Cir. 1968).

However, when an appellate court is presented with the question of whether the disallowance or limitation of investigative funds has deprived an indigent defendant of due process of law, quite different considerations are applicable. The trial has then occurred and counsel for such a defendant is in a much better position to demonstrate, if he can, that there has been a denial of due process. The question then becomes whether the denial or restriction of investigative funds has substantially prejudiced the defendant at the state court trial.

At the appellate stage, the inquiry is analogous to that which is to be made when a federal indigent defendant asserts, on appeal, that he has been denied investigative funds which should have been allowed under 18 U.S.C. § 3006A(e), a provision of the Criminal Justice Act of 1964. It is fair to assume that 18 U.S.C. § 3006A(e) is designed to accord federal prisoners full constitutional rights under the Due Process Clause and the Sixth Amendment. Thus the manner in which that section is applied, on appellate review, should provide reliable guidance as to appellate review of state trial denials and limitations with respect to investigative funds.

In federal reviews involving section 3006A(e), reversal is indicated only where a defendant has established prejudice by clear and convincing evidence. United States v. Sanders, 459 F.2d 1001 (9th Cir. 1972); United States v. Washabaugh, 442 F.2d 1127, 1130 (9th Cir. 1971). We are also of the view that in determining whether such a showing has been made, due consideration must be given to the question of whether defense counsel, at the time of requesting the allowance of funds, made as complete a showing of necessity as could then be reasonably expected of him.

With these principles in mind we turn to an examination of the showing of prejudice made by counsel for Mason. At the time of seeking the appointment of an investigator, the only need stated was that the state had endorsed upon the information some twenty-three witnesses, that a good many of these witnesses were not police officers, and that some were out-of-state witnesses. No effort was made to advise the court as to what lines of inquiry counsel desired to pursue or, in the absence of a court-appointed investigator, how much investigative funds counsel needed. Nor did counsel make any showing as to why it was impracticable for counsel to personally Conduct the needed investigation, with or without the allowance of out-of-pocket expenses.

With regard to counsel’s application for funds for travel to Sacramento and Gettysburg, the state trial court was advised in generalities that the purpose of these trips was to interview and to investigate the backgrounds of James William Chamblin and Floyd Ransom Roberts, both of whom were material witnesses for the state.

Not until this appeal did the counsel spell out with specificity that this investigation was necessary to “examine factors which determine their credibility” and to discover the names and addresses of witnesses to contradict the damaging admission by Mason allegedly made in conversation to Chamblin and Roberts.

The record before us provides little support for these representations by counsel. Chamblin did not testify at Mason’s trial, and therefore his credibility was not in issue. As to Roberts’ credibility, counsel for Mason’s cross-examination covered over one hundred pages in the transcript. It shows that defense counsel knew intimate details about Roberts, gained presumably from Roberts’ preliminary hearing testimony and from various depositions.

As for Mason’s claim that other witnesses were present on the occasion when he was alleged to have made incriminating statements in the presence of Chamblin and Roberts, Mason himself testified at the trial that no one was present except the people he had already named. In Mason’s reply brief it is asserted that trial counsel for Mason did not know until the trial that one of the persons present on this occasion was George Bruce Williamson. Counsel speculates that if Mason’s trial counsel had known of Williamson’s presence prior to the trial, he might have investigated him and obtained information helpful to Mason’s defense.

However, Mason was himself present on this occasion and was capable of advising his attorney as to Williamson’s presence. Moreover, the transcript of the second preliminary hearing, to which trial counsel had access, reveals that Williamson had attended this gathering and that he heard Mason say he had killed a man. This transcript also disclosed Williamson’s Sacramento address.

Considering the record as a whole, we conclude that Mason has not shown, by clear and convincing evidence, that he was substantially prejudiced at the state trial by the denial of investigative assistance or the failure to provide a greater amount of funds. It follows that, insofar as Mason’s due process argument is concerned, the district court did not err in denying the application for a writ of habeas corpus.

This brings us to Mason’s equal protection argument. In substance, this contention is that since the Maricopa County Public Defender provides special investigators to assist indigent criminal defendants being represented by that office, the failure to appoint a special investigator to assist Mason’s appointed counsel or, in the alternative, to provide adequate investigative funds, violated the Equal Protection Clause of the Fourteenth Amendment.

The classification which resulted, whereby Mason was denied investigative services by the Public Defender, while all other indigent criminal defendants in that county were provided with such services, involves no “fundamental” right guaranteed by the Constitution and therefore is not inherently suspect. It follows that the strict “compelling state interest” test is not applicable. See San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 18-24, 31-35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Mahan v. Howell, 410 U.S. 315, 322-323, 328-329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). See also, Village of Belle Terre v. Boraas, 415 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (the Court describes the kinds of cases in which a classification may be inherently suspect). The proper test to be applied is whether the classification has a rational basis or connection with a valid state interest.

The state’s asserted interest in denying Mason access to the Public Defender’s investigative staff is to prevent a conflict of interest between two criminal defendants. It is an established constitutional principle that such a conflict precludes representation by the same attorney. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Kruchten v. Eyman, 406 F.2d 304 (9th Cir. 1969). Such representation reasonably extends to the matter of special investigative services, since the fruits of such investigations might well assist one defendant at the expense of the other. Cf. Marshall v. United States, 423 F.2d 1315, 1319 (10th Cir. 1970). There is no question but that a conflict of interest existed between Mason and his original co-defendant, Sanchez, who testified against Mason at the trial, thereby exculpating himself.

Under the rational basis test, however, the denial of any and all defense services, regardless of need, is not a reasonable means of resolving such a conflict of interest problem. After Gideon, no one would argue that an indigent defendant deprived of representation by the Public Defender by a conflict of interest would then have to personally compensate, or do without, a eourt-ap-pointed attorney. Cf. James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). Therefore, unless the state provided Mason with an equivalent and fundamentally fair substitute for the normally available investigative services of the Public Defender’s investigative staff, he has been denied equal protection. See MacCollum v. United States, (9th Cir. August 2, 1974).

In our further view, in order to be equivalent and fundamentally fair, the substitute provided by the county need not take the form of the appointment of a special investigator at public expense, but may be accomplished by the allowance of investigative funds for use by the indigent defendant’s counsel.

Whether equivalent assistance was furnished to Mason must be determined by reference to the investigative services available through the Public Defender. While the Maricopa County Public Defender may, pursuant to A.R.S. Section 11-586A, utilize his investigative staff without obtaining prior court approval, the availability of such staff is the result of legislative appropriations and oversight which place reasonable restrictions thereon. As an equivalent and fundamentally fair substitute for such legislative control it is permissible for Arizona to require a showing reasonably adequate to convince a court that there is a necessity for such an allowance.

As pointed out above, in discussing the due process argument, such a showing may be difficult to make in advance of trial, since the attorney representing the indigent may not then be able to document the need. Accordingly, as we have indicated, a state court should probably view with considerable liberality a motion for such pre-trial assistance. Nevertheless, it is appropriate for such a court to take into account the circumstances actually revealed or capable of presentation, and to give due weight to the fact that an attorney representing an indigent criminal defendant may well be able to conduct most if not all of the needed investigation with or without the allowance of additional expense.

When such an equal protection problem is presented in the appellate court, however, the same test is to be applied as in the case of a due process contention. As we have stated above, that test is whether the defendant has established substantial prejudice by clear and convincing evidence. Applying that test, we have already concluded that no such showing has been made. It follows that the district court did not err in rejecting Mason’s equal protection argument.

Affirmed.

      . Neither of Mason’s trial attorneys represent him on this appeal.

      . The items sought to be produced were: (1) any statement from Roberts to two police officers on February 12, 1967; (2) any statement of Roberts to Officer Ezell in August of 1967 taken in Pennsylvania; (3) any statements by Chamblin to the Sacramento or Phoenix police relating to the crime; (4) the F.B.I. Rap Sheets on Roberts and Chamblin; (5) any notes or memo-randa of any interviews of Roberts or Chamblin by four named police officers; (6) the results of scientific tests performed on an angle iron found at the scene; and (7) any “D.R.’s” prepared by the Phoenix Police Department relating to interviews with witnesses endorsed on the information.

      . The court stated that item No. 7 (discovery of all D.R.’s relating to witnesses) was “pretty broad.” Mason’s attorney agreed, saying “as to that I don’t have anything to back that up, really. . . . ”

      . Mason’s attorney advised the court that the Sacramento Public Defender had billed him fifty dollars for obtaining answers to the interrogatories. The court stated: “Make up your formal claim and I’ll see what I will do.” The record does not disclose whether Mason’s attorney filed such a claim and, if so, whether it was paid.

      . The Supreme Court has since been vigilant in upholding and extending these principles of equality. E.g., Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (right to counsel for misdemeanors and in petty offenses) ; Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969) (transcript for appealing a violation of a municipal ordinance) ; Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1967) (transcript of evidentiary hearing in habeas corpus proceeding, for use in de novo application to higher court) ; Roberts v. La Vallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (transcript of preliminary hearing) ; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (screening in forma pauperis cases for appeal) ; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (conditioning a collateral attack on a conviction on a filing fee) ; Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959) (conditioning direct appeal on payment of a filing fee).

      . The Congress in providing for the adequate representation of federal indigent defendants in 18 U.S.O. section 3006A(e), the American Bar Association in promulgating minimum standards for criminal justice, ABA Standards Relating to Providing Defense Services section 1.5, and even the State of Arizona in providing for county Public Defender’s offices, A.R.S. section 11-581 et seq., have adopted the theory that investigative assistance is sometimes a necessity for an adequate defense.

      . Mason contends that one facet of the Arizona procedure for obtaining the allowance of funds for investigative purposes is particularly prejudicial. This is the fact that upon the hearing of any such court application for funds the prosecutor is present and thereby gains firsthand knowledge of defense strategy, and moreover is given the opportunity to oppose the motion. We decline to evaluate this objection because it does not appear from the record before us that Mason made any effort to have these motions considered ex parte.

      We note that, under 18 U.S.C. § 3006A(e), bearings for the purpose of considering motions for the allowance of investigative funds under the Criminal Justice Act of 1964 are conducted ex parte. Where counsel for defendant objects to the presence of Government counsel at such a hearing, the failure to hold an ex parte hearing is prejudicial error. United States v. Sutton, 464 F.2d 552 (5th Cir. 1972) ; Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970). It may be that the courts of Arizona, if requested to do so, would also conduct such hearings ex parte.

      . This familiarity covered such facts as: Roberts had lived with a girl friend instead of his sister, as he had claimed; felony charges were dropped out of state against Roberts to enable him to testify in Arizona; he had been paid thirty-five dollars at the preliminary hearing.

      . See McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

      . See Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 172-176, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Fred D. FINNIGAN, Appellant.
    No. 74-1465.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Nov. 20, 1974.

      John M. Fincher, North Little Rock, Ark., for appellant.
    Gene O’Daniel, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal from a jury conviction on four counts of a mail fraud indictment charges trial court error in (1) denying appellant’s motion to require the postal inspector to make available to appellant the original field notes made by the inspectors in preparing the case, (2) refusing to give appellant’s requested instruction regarding criminal liability of a corporate officer, and (3) admitting into evidence a corporate account book containing numerous entries not material to the case. We affirm.

Appellant was convicted on Counts I, IX, X and XI of a mail fraud indictment which charged in substance that appellant had devised a scheme and artifice to defraud and to obtain money by false pretenses and caused the mails to be used for the purpose of executing the scheme; as a part of the scheme appellant sent through the mails unsolicited .invoices for advertising in a magazine called “Arkansas Labor and Craftsman,” and he fraudulently represented that a Christmas edition and a Spring edition of said magazine would be published when he knew such editions would not be published.

During the course of the trial, at a hearing out of the presence of the jury, on a motion to suppress the admissions made by appellant to Postal Inspector Bonney, appellant requested that the inspector be ordered to furnish field notes relating to all interviews with witnesses during the investigation. The United States Attorney advised the court that defendant’s counsel had been allowed to read his entire file which included summaries of interviews with various witnesses, including appellant.

The trial court ruled that appellant was not entitled to the original field notes under the Jencks Act, 18 U.S.C. § 3500, but directed that the government must furnish “anything exculpatory.” Defendant’s counsel then proceeded to cross-examine Inspector Bonney concerning the investigation. At the close of the hearing the court denied the motion to suppress to the extent that it was based on Miranda

Appellant now urges that the trial court erred in denying his motion to require the postal inspector to make available the original field notes made by government agents in preparing the case. He contends that he was thereby denied discovery essential to an effective preparation of his defense.

In this instance field notes of interviews with witnesses were not producible under the Jencks Act because the witnesses had neither signed nor otherwise “adopted or approved” them. Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959); United States v. Turner, 442 F.2d 1146 (8th Cir. 1971). Neither did they purport to be a substantially verbatim recital of an oral statement made by the witnesses. Clancy v. United States, 365 U. S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961). The written report made by the postal inspector, which was a summary of the field notes, was furnished to appellant. The trial court in denying the motion for the field notes stated, “I don’t believe I will require them at this juncture to furnish the field notes, if any, that the witness may have made,” thus indicating that his ruling was predicated on the state of the record as it then existed. Appellant proceeded to cross-examine Inspector Bonney concerning the investigation and at no time renewed his request to see the original field notes. However, the record discloses that appellant’s counsel did examine Inspector Bonney with respect to the field notes of Inspector Higginbotham (who was not a witness) concerning an interview with the witness Doris Williams, who had testified earlier in the trial. It appears that Inspector Bonney read the contents of the notes into the record. We find no error with respect to the court’s ruling concerning the government’s compliance with the Jencks Act.

The failure of the government to furnish field notes of conversations with the defendant poses a different problem. Appellant urges that in fairness to the defense and in view of the proposed amendments to Rule 16(a), Fed.R.Crim. P., we should reverse the trial court for failure to order these notes produced.

The proposed amendments to Rule 16 have not been adopted. We therefore make no attempt to interpret them with respect to the matter at hand. Cf. United States v. Tompkins, 487 F.2d 146, 150 (8th Cir. 1973); United States v. Allsup, 485 F.2d 287, 290 (8th Cir. 1973). There is support for the view that “statements” as used in Rule 16(a)(1) should be interpreted broadly to include non-verbatim oral statements. See United States v. Fallen, 498 F.2d 172 (8th Cir. 1974). We need not reach that issue here because it is our view that no prejudicial error has been committed.

As previously indicated, prior to trial the prosecutor made available his entire file to appellant’s counsel. Counsel concedes in his brief before this court that the prosecutor was most generous in this regard. The prosecutor assured the court that to his knowledge no exculpatory information existed. The trial court in ruling on defendant’s general motion to produce all field notes indicated his ruling was not necessarily final. Thereafter defendant cross-examined with respect to Inspector Higginbotham’s notes concerning statements by the witness Williams but did not make any further inquiry concerning field notes of conversations the inspectors had with the defendant. This, coupled with the fact that the prosecutor made his entire file, which included written summaries of defendant’s statements, available to defendant’s counsel prior to trial, leads us to conclude no prejudicial error was committed.

Appellant claims the court erred in refusing to give his requested instruction regarding the criminal liability of a corporate officer. A review of the court’s instructions discloses that the trial court properly instructed the jury with respect to the essential elements of the crime:

First, that the defendant, in fact, had knowingly and wilfully devised a scheme or artifice to defraud * * *. And second, that on or about the date mentioned in the count he knowingly and wilfully mailed, or knowingly and wilfully caused the corporation referred to in the evidence, or an employee or employees of that corporation, to mail to such addressee the letter referred to in the count under consideration for the purpose of executing such scheme or artifice * * •»

The corporation involved, “A. L. & C. Corporation,” was nothing other than the alter ego of appellant. The only employees that the corporation had aside from appellant were the bookkeeper, Mrs. Doris Williams, and an occasional helper. We are satisfied that the instructions when considered as a whole were proper.

Finally, appellant contends the court erred in admitting into evidence the account book kept by Mrs. Williams because it contained numerous entries of receipts from many businesses other than the thirteen named in the indictment and thus could have done nothing less than prejudice the jury by causing them to believe that all the entries and all the income noted in the account book were the result of the alleged scheme. The account book was in the possession of appellant. During the cross-examination of Mrs. Williams, appellant’s counsel produced the account book, showed it to Mrs. Williams, and questioned her with respect to the first entry of $3200, which she identified as the proceeds of a loan to appellant which was used to open the account. She had testified without objection on direct examination that the total deposits approximated $6000 and the collections were the only deposits made. Appellant’s account book cross-examination obviously had the purpose of impeaching her testimony with respect to the amount of the collections. On redirect the government offered the account book into evidence. Appellant sought to limit inquiry to the $3200 item. His objection was overruled and the exhibit received.

Initially we observe that since appellant had interjected the account book for the purpose of impeaching the witness, it was appropriate to permit redirect examination with respect to it unless the probative value of the testimony and exhibit was outweighed by the prejudice created. Here we find no prejudice. Earlier in the trial the bank records of appellant’s corporation had been received in evidence. They included the deposits consisting of cheeks received from customers other than those named in the indictment. At the time the bank records were received in evidence, the trial court admonished the jury that there was no claim that all the money deposited was procured through fraud and that the jury should not consider a deposit unless there was other evidence connecting the deposit with the scheme charged in the indictment. No challenge is now made to the receipt in evidence of the bank records. We are satisfied the evidence at most was cumulative and not prejudicial. The counts upon which the jury convicted were supported by strong evidence.

Affirmed.

      . Appellant was acquitted on Counts II, V and VIII. The remaining counts of the 13-count indictment were dismissed by the court on motion of the government prior to submission of the case to the jury. The court imposed a two year imprisonment sentence but suspended all but six months thereof.

      . This ruling is not here contested.

      . Defendant’s requested charge was as follows :
      An officer of a corporation may not be held criminally liable for specific acts of his corporation, performed through its employees, unless he actually and personally performed the act which constitutes the offense or the act was done at his direction or with his permission. Consequently, the defendant, Fred Finnigan, as an officer of the corporation, Arkansas Labor and Craftsman Corporation, may not be found guilty of the offense alleged unless the Government has proved beyond a reasonable doubt that each and every element of the so-called scheme was executed by Fred Finnigan or with his knowledge, and you must find that this knowledge existed prior to any overt act done by Fred Finnigan or at his direction and with his permission.

      . It is worthy of noto that the jury acquitted on three of the seven counts submitted.


author: HILL, Circuit Judge.

text:
    Herman QUARLES et al., Plaintiffs-Appellants, v. FUQUA INDUSTRIES, INC., et al., Defendants-Appellees.
    No. 73-1825.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 20, 1974.
    Decided Nov. 5, 1974.

      Mortimer A. Berlin, Topeka, Kan., for plaintiffs-appellants.
    Charles N. Henson, Topeka, Kan., for defendants-appellees.
    Before HILL and DOYLE, Circuit Judges, and SMITH, District Judge.

       Honorable Talbot Smith, Eastern District of Michigan, sitting by designation.

   HILL, Circuit Judge.

This class action was filed by 42 separate plaintiffs against 13 separate defendants. Seven plaintiffs’ claims have been dismissed upon their own motion, and this action was dismissed against ten defendants on plaintiffs’ own motion. Fuqua Industries, Inc., Career Enterprises, Inc., and L. E. Timberlake remain as defendants.

Appellants seek compensatory and punitive damages, for themselves and for all members of the class so damaged in the State of Kansas, amounting to $40,000,000 plus costs. Appellants claim the defendants placed misleading advertising on radio and television and in the newspaper and promised jobs to appellants. In this manner, appellants were fraudulently induced to enter into training course contracts and enroll in vocational training schools in Topeka, Kansas. Appellants also allege that agency and partnership arrangements existed among and between the various defendants during these fraudulent activities’ occurrences.

The activities of three corporations are primarily involved in this suit. Career Enterprises, Inc. (hereinafter called Career) of St. Petersburg, Florida, engaged in the business of operating and franchising a system of adult vocational training schools. It is not clear exactly what was the relationship between Career and Career Enterprises of Kansas, Inc. (hereinafter called Career of Kansas); the parties and the trial court treated them as one and assumed both were doing business in Kansas. The record does show Career of Kansas was a wholly owned subsidiary of Career. Fuqua Industries, Inc. (hereinafter called Fuqua) is a Delaware corporation with corporate offices in Atlanta, Georgia; Fuqua is a holding company and its business is investing in other corporations’ stock. Fuqua employs approximately forty persons, eighteen to twenty are professional persons — lawyers, accountants and insurance and financial experts — and the remainder are secretarial and clerical persons.

On May 30, 1969, Fuqua acquired 100% of Career’s stock. Career, in operation about five years prior to this date, operated and franchised schools in 38 states and the District of Columbia. Fuqua contracted with William L. Phillips, then president of Career, and Francis W. MacNeil, then secretary-treasurer of Career, for continuation of their services to Career for a five-year period following the acquisition. Career continued its business, operating as a subsidiary of Fuqua, and was so operating at all times relevant to appellants’ claims.

Apparently, there was a slump in the adult vocational training market and Career’s operations ceased to be profitable. On December 1, 1971, Fuqua sold 100% of Career’s stock to Fortune Enterprises, Inc., a corporation organized by William L. Phillips. According to testimony of Lawrence P. Klamon, senior vice president and general counsel of Fuqua, the sale was made because “ . Career gave no promise of being very profitable in the future . . . and the best possibility for Career to remain as a viable company was to hopefully reduce its overhead [and] shrink the scope of its operations.” These efforts to be taken by Career were evidently unsuccessful; on July 20, 1972, the United States District Court for the Middle District of Florida issued an order staying all proceedings against Career Enterprises, Inc., a bankrupt.

Appellants’ complaint was filed on November 5, 1971. On February 11, 1972, several defendants including Fuqua filed a motion to quash and to dismiss, for more definite statement and to separately state and number. One ground asserted for quashing and dismissing was lack of jurisdiction over the persons of defendants. Testimony of Mortimer A. Berlin, appellants’ attorney, Joseph F. Savage III, then assistant secretary and assistant general counsel of Fuqua, and Lawrence P. Klamon was given before the trial judge. After the dismissal of the other parties and the withdrawal of Fuqua’s attorneys as counsel for Career, the motion was treated as on behalf of Fuqua only. The trial court sustained the motion to quash and dismiss. The court concluded that Fuqua did not transact business within the Státe of Kansas within the meaning of the Kansas Long Arm Statute, that the service of process was ineffective and that the court lacked personal jurisdiction over Fuqua.

The issue presented here is: Did Fu-qua in any manner “transact business” in the State of Kansas so that it submitted to the jurisdiction of the courts 'Of Kansas? For reasons set forth below, we do not believe Fuqua transacted business in Kansas, and thus, the trial court correctly determined it had no jurisdiction over Fuqua.

In arriving at its decision, the trial court made numerous findings of fact concerning the relationship of Fuqua and Career. The findings of the trial court are presumptively correct, Walker v. Wiar, 276 F.2d 39 (10th Cir. 1960), and a trial court’s findings will not be reversed unless they are clearly erroneous. Burgert v. Tietjens, 499 F.2d 1 (10th Cir. 1974) ; Federal Security Ins. Co. v. Smith, 259 F.2d 294 (10th Cir. 1958).

Appellants maintain this court may deal with all the given facts and urge this court to be freer in drawing differing conclusions than is usually the case because no weighing of conflicting evidence and no evaluation of witnesses’ credibility were involved here. The trial court did hear testimony of three witnesses ; however, the standard of review remains the clearly erroneous one even when only documentary evidence is presented. Sta-Rite Indus. Inc. v. Johnson, 453 F,2d 1192 (10th Cir. 1971), cert. den’d, 406 U.S. 958, 92 S.Ct. 2062, 32 L.Ed.2d 344 (1972) ; Mid-Continent Cas. Co. v. Everett, 340 F.2d 65 (10th Cir. 1965). Reviewing the entire record, we conclude the trial court’s findings of fact are supported by evidence and are not clearly erroneous.

A federal court, in diversity actions, may obtain personal jurisdiction over nonresidents of the state in which that district court is held by complying with the long arm statute of the state in which the district court sits. F.R.Civ.P. Rule 4(d)(7) and (e); Wilshire Oil Co. v. Riffe, 409 F.2d 1277 (10th Cir. 1969). Personal service was made upon appellee Fuqua in Fulton County, Georgia, pursuant to the Kansas Long Arm Statute, Kan.Stat. Ann. § 60-308 (Supp.1973). Section 60-308(b) provides in pertinent part:

Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
(1) The transaction of any business within this state .... [Emphasis added].

In determining the propriety of service of process under a state long arm statute, we look to state law rather than federal law. Steinway v. Majestic Amusement Co., 179 F.2d 681 (10th Cir. 1949), cert. den’d, 339 U.S. 947, 70 S.Ct. 802, 94 L.Ed. 1362 (1950). The trial court applied Kansas law and con-eluded Fuqua itself was not transacting business in Kansas, the corporate separation was maintained between Fuqua and Career, and Career was not Fuqua’s agent.

Appellants have not contended Fuqua itself “transacted business” within Kansas as defined by the Kansas Supreme Court. The trial court specifically found that Fuqua had no officers, agents or employees in Kansas at any time material to this action and that Fuqua had not engaged in any business transactions in Kansas. Thus, appellants have relied on alter ego and agency theories.

As previously mentioned, it has been assumed that Career was doing business in Kansas. Consequently, under this assumption, the subsidiary was subject to the jurisdiction of the Kansas courts. Appellants argue that Fuqua conducted no other business than managing its subsidiaries, ipso facto, the subsidiary Career’s operations were Fuqua’s business, and the Kansas Long Arm Statute could reach Fuqua. No Kansas case has been located which indicates Kansas’ possible application of the alter ego doctrine for jurisdiction over a nonresident parent corporation when a subsidiary corporation has transacted business within the state and the parent itself has not. Kansas, however, has recognized the alter ego doctrine. Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33 (1970). Under this doctrine, the corporate entity is disregarded and liability fastened on an individual who uses the corporation merely as an instrumentality to conduct his own personal business. The liability must arise from fraud or injustice perpetrated on third parties dealing with the corporation. Id. 473 P.2d at 42. See Doyn Aircraft, Inc. v. Wylie, 443 F.2d 579 (10th Cir. 1971). In applying this doctrine to a situation involving an Oklahoma statute, this court summarized the general case law in the following manner:

Where a nonresident corporation is organized for the very purpose of holding and controlling the stock of a resident corporation and thus manages and directs the internal affairs of the resident corporation, courts have disregarded the corporate entity and treated it as the alter ego of the nonresident corporation for the purpose of service of process .... But, none of the cases we have seen go so far as to hold mere ownership and voting of a majority of the stock of a resident or domesticated corporation by a nonresident corporation sufficient to justify ignoring the corporate entity for the purpose of service of process. Steinway v. Majestic Amusement Co., supra, 179 F.2d at 683.

Thus a holding or parent company has a separate corporate existence and is treated separately from the subsidiary in the absence of circumstances justifying disregard of the corporate entity. 18 Am.Jur. 2d Corporations § 17 (1965). See Continental & Commercial Trust & Sav. Bank v. Garden City Co., 123 Kan. 659, 256 P. 983 (1927). Circumstances justify disregard of the corporate entity if separation of the two entities has not been maintained and injustice would occur to third parties if the separate entity were recognized. Garden City Co. v. Burden, 186 F.2d 651 (10th Cir. 1951).

In Flank Oil Co. v. Continental Oil Co., 277 F.Supp. 357, 363 (D.Colo.1967), Judge Doyle said:

Cases such as Steinway properly discount formal separations of function and subtle efforts to maintain distinct corporate entities. The effort is to ascertain from the total facts the extent of actual control exercised by the parent over the internal affairs of its subsidiary ....

The Kansas Court has spoken of dealing with “the realities of the situation” when considering parent-subsidiary separation. Thus, from the total facts we seek to determine if the requisite separation was maintained between Fu-qua and Career.

The trial court concluded that the corporate separation was maintained. That conclusion was based on findings of fact including the following: “(1) Fuqua owns one hundred percent of the stock of some eighteen corporations, which are wholly owned subsidiaries of Fuqua, and which retain their identity as separate enterprises and corporate entities. The subsidiaries are highly diversified. . . . (3) The management of each of Fuqua’s subsidiary corporations operates with a high degree of autonomy and has direct responsibility for operations of the company and the achievement of goals established in conjunction with Fuqua’s management. To the extent possible Fuqua has preserved the continuity of management and operations of its subsidiary corporations after acquisition of their stock. (4) The executive staff of Fuqua in Atlanta, Georgia, provides its subsidiary corporations, including Career during the time its stock was owned by Fuqua, with general financial, legal, tax and administrative services. Fuqua acts as a banker to its subsidiaries, providing financing for their corporate operations. (8) During the period of time Fuqua owned the stock of Career, the management of the affairs of Career was in the hands of its corporate officers, who managed the affairs of the corporation independently of and without day-to-day supervision of the operations by Fuqua management .... Fuqua did not direct or supervise the daily business activities of Career in regard to relationships of the company with franchisees or operation of company-owned schools, nor did Career report to Fuqua in regard thereto.” The trial court also found the corporations had had separate independent auditors; separate books and records; separate offices, officers and office staffs; separate bank accounts; separate tax returns until a tax advantage could be realized by filing consolidated returns; separate payrolls, and independent purchasing.

Appellants point to the following “facts” as indicating the separation was not maintained: (1) Fuqua’s general supervision, coordination and financial control over Career as illustrated by submission of budgets for approval, contacts between the two corporations (monthly financial reports, office visits and telephone calls), Fuqua’s provision of adequate capital to Career on an open account, and Fuqua’s insurance department that purchased insurance for its subsidiaries; (2) Career’s financial position of insolvency and Career’s continued operations because of cash Fuqua provided; (3) the employment contracts of Phillips and MacNeil which required the two men to be available in an advisory capacity to Fuqua and its subsidiaries; (4) two Fuqua staff members were on Career’s board of directors as of August, 1971, and three Fuqua employees were Career officers; (5) Fu-qua’s Employees Stock Purchase Plan which was available to employees of subsidiaries; (6) the sale of Career. Appellants claim the sale transaction was only an attempt to remove Fuqua from potential legal obligations arising from Career.

As to (1), it is inherent in the stockholder-corporation relationship that the stockholder should ask for reports, sometimes consult with corporate officers, offer advice and even object to proposals. United States v. Elgin, J. & E. Ry., 298 U.S. 492, 56 S.Ct. 841, 80 L.Ed. 1300 (1936). Concerning (2), this Court has said parent financing of the subsidiary will not make the subsidiary a mere instrumentality. Taylor v. Standard Gas & Elec. Co., 96 F.2d 693 (10th Cir. 1938), rev’d on other grounds, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939). We believe (3) and (4) to be equally innocuous; identity of officers and directors has been held insufficient to allow corporate veil piercing. American Trading & Prod. Corp. v. Fischbach & Moore, Inc., 311 F.Supp. 412 (N.D.Ill.1970), and cases cited therein. The existence of an employees stock purchase plan (5) does not show lack of corporate separation; the parent corporation was thereby providing a financial benefit to electing employees of subsidiaries. Finally, the sale of the unprofitable investment (Career) would seem to be entirely consistent with the corporate separation of a holding company (Fuqua) and its business investment subsidiary (Career).

Thus we believe no one factor indicates the alter ego doctrine should be applied here. We also are convinced the total participation of Fuqua in the affairs of Career, as determined by the trial court, does not amount to a domination of the day to day business decisions of Career and a disregard of the corporate entity of Career. Although Fuqua probably had the opportunity to control Career, the exercise of, not the opportunity to exercise, control is determinative. American Trading & Prod. Corp. v. Fischbach & Moore, Inc., supra, 311 F.Supp. at 415, cit’g Brown v. Margrande Compania Naviera, S.A., 281 F.Supp. 1004 (E.D.Va.1968). Consequently, jurisdiction of Fuqua cannot be established via application of the alter ego theory.

The trial court specifically held Career was not the agent of Fuqua. This conclusion can only be reversed if it is clearly erroneous. Manufacturer’s Nat’l Bank v. Hartmeister, 411 F.2d 173 (10th Cir. 1969).

Appellants point to Curtis Publishing Co. v. Cassel, 302 F.2d 132 (10th Cir. 1962), where this court applied an agency theory to hold a parent company was doing business within Kansas when its wholly owned subsidiary was shown to have done business in Kansas. The rule concerning this theory’s application stated by the court there is as follows:

. as all corporations must necessarily act through agents, a wholly owned subsidiary may be an agent and when its activities as an agent are of such a character as to amount to doing business of the parent, the parent is subjected to the in personam jurisdiction of the state. . . . Id., 302 F.2d at 137 [Emphasis added].

We believe Curtis is distinguishable from the case at hand; the subsidiary distributor in Curtis was doing Curtis’ business in Kansas.

In our case, Career operated adult vocational training schools. Fuqua, a holding company, engaged in diversified corporate investments. There was no agreement by which Fuqua assumed the risks of Career’s business ventures; rather, Fuqua acted only in keeping with its stockholder interest. One company’s exercise over a second corporation of a controlling influence through stock ownership does not make the second corporation an agent of the first. 18 Am.Jur.2d Corporations § 17 (1965). Career did not engage in Fuqua’s business of diversified corporate investments. Clearly, Career was conducting its own business in Kansas and was not Fuqua’s agent. For these reasons, the trial court was correct in determining it had no jurisdiction over ap-pellee Fuqua.

Affirmed.

      . The 1970 Annual Report of Career Enterprises of Kansas, Inc. lists L. E. Timberlake as president.

      . The agreements stated: “Fuqua hereby agrees to cause Career to employ Employee as President and Chairman of the Board [as Secretary-Treasurer] of Career and Employee agrees to serve Fuqua and Career in such capacity. . . . ”

      . Cities Serv. Co. v. Koeneke, 137 Kan. 7, 20 P.2d 460, 471 (1933) : “This court has no intention to intimate that a holding company cannot set on foot a corporate subsidiary to perform some undertaking which would be impracticable or inexpedient for the parent company to do itself. . . . But if the corporate business of the subsidiary and that of the parent company are so hazily confused that the officials themselves do not know which is which, the legal fiction of separate corporate entities evaporates . . . .” See Wichita Gas Co. v. Public Serv. Comm’n, 126 Kan. 220, 268 P. 111 (1928).

      . Klamon, in testifying, indicated the plan was available to employees only if the subsidiary corporation first elected to participate in the plan. That condition, however, was not specified in the explanation of the plan in the prospecti Fuqua had issued.

      . See Garden City Co. v. Burden, 186 F.2d 651, 653 (10th Cir. 1951), where this court citing Taylor v. Standard Gas & Elec. Co., 96 F.2d 693 (10th Cir. 1938), rev’d on other grounds, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939), stated: “ . . . the fact that one corporation owns all the stock of another and thereby selects from its own directors and officers a majority or all of the directors of the other, or that a parent finances a subsidiary is, without more, not sufficient to warrant disregarding the separate legal entity and treating them as one.”