author: RONEY, Circuit Judge:

text:
    MUTUAL SAVINGS LIFE INSURANCE CO., Plaintiff-Appellee-Cross Appellant, v. UNITED STATES of America, Defendant-Appellant-Cross Appellee.
    No. 72-2776.
    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.

      Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Paul M. Ginsburg, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
    J. Gilmer Blackburn, John A. Caddell, Decatur, Ala., for plaintiff-appellee.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

This tax refund suit involves the tax treatment of a life insurance company’s acquisition of two blocks of life insurance policies from other insurance companies in reinsurance transactions. Trying the case without a jury on a stipulation of facts and the testimony of one witness, the District Court, following the examples in the Treasury Regulations which it held dictated divergent results, found in favor of the Government on one transaction and in favor of the taxpayer on the slightly different second transaction. Both parties appeal on the ground that the two transactions should be treated the same and in their favor. We conclude that the transactions should be treated alike and in favor of the taxpayer. We affirm in part and reverse in part.

The Tax Scheme

Although computations under the Life Insurance Company Income Tax Act of 1959, 26 U.S.C.A. § 801, et seq., are generally complicated, the provisions relevant to this case are relatively simple. As premiums on policies are received by a life insurance company, state insurance laws require a portion of the premiums to be set aside as reserves for the payment of claims. Premium receipts must be reported as income, but to avoid taxing the company on that portion of the premium receipts allocated to reserve requirements, the Act provides that amounts by which reserves are increased may be deducted from current operating income. Concomitantly, when a policy is paid on the death of the insured so that reserves are decreased and the reserved assets are freed for the company’s general use, the amount of decrease must be reported as income for tax purposes.

In addition to basic transactions in which an insurance company issues a life insurance policy to an individual, collects premiums, sets aside in reserves a portion of each premium during the life of the policyholder, and then pays the face of the policy upon the insured’s death permitting a reduction in reserve requirements, insurance companies rein-sure themselves. In such reinsurance transactions, one company transfers a policy to another company, the “reinsurer,” which then is entitled to receive the insurance premiums as paid, maintains appropriate statutory reserves, and pays the death benefits when the policyholder dies. Usually large numbers of policies are involved and often they have been in force for a period of time so that substantial amounts of reserves are being held against the policies at the time of the transfer.

The Reinsured. In reinsurance transactions, the company which assigns the policies, the “reinsured,” can legally reduce its reserves by the amount required to be held in reserve on the assigned policies, but this amount must be reported as income. If any consideration is paid by the reinsured to the reinsurer for assumption of the policy liabilities, the reinsured is entitled to deduct this amount from income. In some cases, the reinsured may receive consideration from the reinsuring company, and such consideration must then be included as income.

The Reinsurer. On the other hand, the reinsurer, upon acquiring the policies, must commensurately increase its required reserves, but may immediately deduct this amount from income. Any consideration received from the rein-sured must be reported by the reinsurer as income. But if the reinsurer has paid consideration for the policies, the payment cannot immediately be deducted, but must be amortized over the estimated life of the contracts.

When the reinsurer receives consideration in the exact amount of the required reserves, these payments obviously offset each other. The reinsured company reports as income the amount by which its reserves may now be reduced, but deducts the identical amount which it has paid to the reinsurer. The reinsuring company reports as income the amount paid it by the reinsured, but deducts from income the same amount by which its reserves have been increased.

In the two cases at bar, the taxpayer, Mutual Savings Life Insurance Company, an Alabama corporation and a life insurance company within the terms of Section 801 of the Internal Revenue Code of 1954, is a reinsurer. Taxable under Section 802 of the Code, its income is reported on the accrual method of accounting. In the subject transactions, Mutual acquired two blocks of insurance policies from two different companies, Georgia Life and Health Insurance Company and Life Insurance Company of Florida.

The amounts of cash consideration paid to Mutual were not equal to the reserves. In the Georgia Life transaction, the reinsured company, Georgia Life, paid consideration to the taxpayer, Mutual, in an amount less than the required reserves. In the Florida Life transaction, taxpayer Mutual not only received no payment from the reinsured company, Florida Life, but actually paid a substantial sum to it for the policies.

The essence of the dispute in these cases concerns the meaning • of the phrase “consideration received from the reinsured” in Section 1.817-4(d) (2) (ii) of the Treasury Regulations on Income Tax. The taxpayer maintains that this phrase encompasses only the tangible assets labeled by the parties as consideration. It is the Government’s position, on the other hand, that the total “consideration received” includes not only the tangible assets transferred, but also the intangible value of the insurance contracts themselves.

Georgia Life Transaction

In the first transaction, taxpayer acquired from Georgia Life and Health Insurance Company life insurance policies for which the legal required reserves were $1,047,142. Taxpayer received from Georgia Life $682,990 in tangible assets. Mutual Life was required to increase its reserves by $1,047,142, which is $364,152 in excess of the value of the tangible assets received.

The District Court held that Mutual was entitled to deduct $1,047,142 for the increase in its life insurance reserves and was required to report as income the $682,990 consideration received from Georgia Life. The net effect, therefore, was to allow the taxpayer a $364,152 excess of deductions over reported income on the transaction.

The Government contends that the “difference between the obligations assumed ($1,047,142) and the tangible assets received ($682,990) represents the payment ($364,152) taxpayer made to Georgia Life for the privilege of taking over this block of business” and that this payment may only be amortized over the useful life of the contracts.

The Government’s contention fails because it overlooks the fact that the transaction, as stipulated by the Government, falls squarely within the provisions of Example 1 of Treasury Regulation Section 1.817-4(3), which example gives no recognition to the intangible value of the policies transferred and is not clearly contrary to the provisions of the law and the Regulations. Taxpayer merely followed the pertinent example in the Treasury Regulations, Example 1, Treas.Reg.Sec. 1.817-4(d) (3) as if it were the Y life insurance company.

Example (1). On June 30, 1959, X, a life insurance company, reinsured a portion of its insurance contracts with Y, a life insurance company, under an agreement whereby Y agreed to assume and become solely liable under the contracts reinsured. The reserves on the contracts reinsured by X were $100,000. Under the reinsurance agreement, X agreed to pay Y a consideration of $75,000 in cash for assuming such contracts. Assuming no other insurance transactions by X or Y during the taxable year, and assuming that X and Y compute the reserves on the contracts reinsured on the same basis, X has income of $100,000 under section 809(c)(2) as a result of this net decrease in its reserves and a deduction of $75,000 under section 809(d)(7) for the amount of the consideration paid to Y for assuming these contracts. Y has income of $75,000 under section 809(c)(1) as a result of the consideration received from X and a deduction of $100,000 under section 809(d)(2) for the net increase in its reserves.

The Government contends that this example does not properly reflect the law in that the phrase “consideration received from the reinsured,” Treasury Regulations, supra, applies not only to tangible assets paid to the taxpayer by the reinsured, but also to the intangible asset value of the acquired life insurance policies. In this example, however, only the tangible consideration transferred between the parties is shown to be considered.

A taxpayer has the right to rely upon the Government’s Regulations and their published illustrations. Treasury Regulations having the force and effect of law are binding on tax officials, as well as taxpayers. See Pacific Nat’l Bank of Seattle v. Comm’r of Internal Revenue, 91 F.2d 103 (9th Cir. 1937).

As stated by the trial court in its decision from the bench, “the Government cannot just abandon example 1 of the regulations and direct it into some type of obscurity oblivion as if it never existed, whereas the parties do and can fit in that direct pattern. Until the regulation is changed, the Government is obligated to follow it.”

We find no error in the District Court’s decision regarding the Georgia Life transaction.

Florida Life Transaction

In the Florida Life transaction, Mutual only received the block of policies for which it paid a cash bonus of $274,771 and for which it assumed the obligation of establishing the required reserve of $160,719. The payment for the policies is subject to amortization by the reinsurer taxpayer over the life of the policies, rather than immediate deduction. The District Court, however, treated the transactions as if Mutual had paid Florida Life a bonus total of $435,490, instead of the $274,771 actually delivered, and received the policies, with an intangible value of $160,719 as consideration from Florida Life. Viewed in this way, taxpayer would, include $160,719 (the value of the policies) in income, deduct $160,719, for contributions to reserves, offsetting calculations, and amortize the entire $435,490 bonus over the life of the contracts.

Determining that Example 2, Treasury Regulation Section 1.817-4(3), was applicable to this transaction, the District Court found that some consideration

must have been paid by Florida Life to Mutual for the assumption of liabilities by Mutual Savings under those policies. The parties had not agreed in their instruments as to what that amount was. On the premise that “[t]here is a benefit generally recognized throughout the insurance industry in obtaining business written by other companies and for which substantial premiums or bonuses are from time to time paid,” the District Court reasoned that taxpayer assumed the liabilities and paid the cash bonus because — the insurance business it took over had a substantial value.

But this treatment is inconsistent with the law and the applicable example found in the regulations. Example 2, Treasury Regulation Section 1.817-4(3), sets forth the full economic considerations underlying such a reinsurance transaction:

Example (2\). The facts are the same as in example (1), except X agreed to pay Y a consideration of $100,000 in cash for assuming these contracts and Y paid X a bonus of $17,000 in cash and that this bonus meets the requirements of section 162. Assuming that the reasonably estimated life of the contracts reinsured is 17 years, X has income of $100,000 under section 809(e)(2) as a result of this net decrease in its reserves and a deduction of $83,000 under section 809(d)(7) for the amount of the consideration ($100,000) paid to Y for assuming these contracts, reduced by the bonus ($17,000) received from Y. For the taxable year 1959, Y has income of $100,000 under section 809(c) (1) as a result of the consideration received from X and deductions of $100,000 under section 809(d)(2) for the net increase in reserves and $1,000 (the bonus of $17,000 divided by 17, the reasonably estimated life of the contracts reinsured), under section 809(d) (12). The remaining amount of the bonus ($16,000) shall be amortized over the next 16 succeeding taxable years (16 x $1,000 = $16,-000) under section 809(d) (12) at the rate of $1,000 for each such taxable year.

Example 2 is based on the same facts as Example 1: reinsurance of policies with a reserve value of $100,000. Only the tangible transfers are taken into consideration. The effect of cross-transfer is netted as to income and deductions for the reinsured, i. e. the $100,000 paid is reduced by the $17,000 received to arrive at the $83,000 deduction for the reinsured. The reinsurer, however, is again instructed to use the tangible assets received in its calculations. Thus, it reports $100,000 as income, not a net of $83,000, and it reports the $17,000 as a bonus payment which must be amortized because Jt was designated as such in the transaction.

If the law were to follow the substance of the situation as contended by the Government in its brief, the example would have held Y to report only $83,000 as income because that is all the “net cash” it received.

Furthermore the regulation only deals with the tax consequences flowing from the $100,000 and $17,000 cash transfers and makes no mention of any intangible consideration.

It appears clear, therefore, that neither the law nor the regulations intended tax consequences to flow from anything but the tangible transfers made between the parties in the way that they are made. At no place does the law or the regulations indicate that the intangible value of the policies is to be treated as consideration received from the rein-sured.

The crux of this law goes not to whether the sums are to be taxed, but when they will be taxed. Eventually the Government will receive tax on every dollar of income which the transactions generate. The law having provided for postponement of the tax on the amount placed in reserves, the IRS by administrative action is not now entitled to nullify that benefit.

Mutual is entitled to the tax treatment of the reinsurance transaction with Florida Life as provided in the applicable code provisions and their explanation in Treasury Regulation Section 1.817-4(d) (2) (ii):

(ii) In connection with an assumption reinsurance (as defined in paragraph (a)(7)(ii) of § 1.809-5) transaction, a reinsurer shall in any taxable year beginning after December 31, 1957—
(a) Treat the consideration received from the reinsured' in any such taxable year as an item of gross amount under section 809(c) (1), and
(b) Treat any amount paid to the reinsured, to the extent such amount meets the requirements of section 162, as a deferred expense under section 809(d) (12) and amortize such amount over the reasonable estimated life (as defined in subdivision (iii) of this subparagraph) of the contracts rein-sured, irrespective of the taxable year in which such amount was paid to the reinsured.

Deciding that “the consideration received” does not include any intangible value of the policies transferred under subsection (a), and in light of the stipulation that no tangible payment was received from the reinsured (Florida Life) by the reinsurer (Mutual), there is no inclusion in Mutual’s gross income concerning the transaction.

Under subsection (b), the amount paid ($274,771) by the reinsured (Mutual) is to be treated as a deferred expense. Mutual must, therefore, amortize the $274,771 bonus “over the reasonable estimated life of the contracts rein-sured.”

The $160,719 transferred to reserve in accordance with state law is to be deducted in the current tax year under § 809(d)(2) as an increase in Mutual’s reserve obligation.

A literal reading of the code and the regulations, especially the explanatory examples, necessitates this result. The applicable sections speak only of tangible consideration and fail to mention, either by express language or implied usage, the intangible value of the policies.

Kentucky Central Life Insurance Co. v. Commissioner of Internal Revenue, 57 T.C. 482 (1972), appeal pending to the Seventh Circuit, is cited by the Government as the only other case which involved the issue presented in this appeal and which is asserted to be contrary to our decision here. In Kentucky Central the parties offset a contractual obligation of the reinsurer to pay $1,650,000 to the reinsured by a “credit equal to the reserves” which the rein-sured was then contractually entitled to transfer to its surplus account. It was agreed by the parties that a $1,650,000 purchase price was to be paid for “business reinsured by Kentucky Central hereunder.” The facts of our case do not reveal any such offsetting credits for legal obligations of the reinsurer to the reinsured. We recognize, however, that our decision here reflects some conflict with the Tax Court opinion in Kentucky Central. We believe, however, that the taxpayers are entitled to frame their business transactions on a plain reading of the tax laws as interpreted by the regulations without recourse to what Congress and the IRS could have and perhaps should have provided, but did not.

This case is remanded to the District Court for appropriate disposition in accordance with this opinion. Taxpayer shall have its costs.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: TURRENTINE, District Judge:

license: Public Domain

text:
    UNITED STATES of America Plaintiff-Appellee, v. Manuel P. AMARAL, Defendant-Appellant.
    No. 73-2129.
    United States Court of Appeals, Ninth Circuit.
    Dec. 3, 1973.

      Alan Saltzman, of Saltzman & Goldin, Hollywood, Cal., for defendant-appellant.
    Paul Sweeney, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
   OPINION

Before DUNIWAY and WRIGHT, Circuit Judges, and TURRENTINE District Judge.

TURRENTINE, District Judge:

I. BACKGROUND

On March 14, 1973, a two count in- ' dietment was filed against appellant Manuel P. Amaral and co-defendant Douglas Nordfelt. Count one charged Nordfelt with the January 23, 1973, robbery of a national bank in violation of 18 U.S.C. § 2113(a). Count two charged appellant Amaral with the February 12, 1973 robbery of a national bank, and Nordfelt with aiding and abetting in violation of 18 U.S.C. § 2. A motion to sever was granted. On April 6, 1973, Nordfelt was tried by a jury and convicted on both counts. Defendant Amaral pleaded not guilty. The case was tried by a jury on April 4-6, 1973 and the defendant was found guilty.

Defendant Amaral appeals his conviction below on five grounds:

First, appellant contends that the trial court improperly limited the voir dire examination, particularly in regards to prejudice against Mexican-Americans and overestimation of the credibility of eye-witness identification, thereby depriving appellant of a fair trial.

Second, appellant argues that it is reversible error for the trial court to have failed to give an instruction, sua sponte, to the effect that eye-witness identification should be viewed with extreme caution.

Third, appellant alleges that the trial court admitted irrelevant and highly prejudicial evidence thereby depriving defendant of due process.

Fourth, Amaral argues that the trial court erroneously denied appellant a pre-trial hearing on the admissibility of testimony based on an out-of-court photographic identification.

Fifth, appellant maintains that the trial court abused its discretion in refusing to allow the defense to present testimony by an alleged expert witness regarding the reliability of eye-witness testimony.

We find that these contentions are without merit, and we accordingly affirm the conviction.

II. THE VOIR DIRE

This, court has held that the procedures for selecting a fair and impartial jury are properly within the trial judge’s discretion as long as they are not unreasonable or devoid of purpose to obtain an impartial tribunal. Hilliard v. Arizona, 362 F.2d 908 (9th Cir. 1966).

Appellant argues that the trial judge inadequately probed the venire persons with respect to bias and prejudice against persons of Mexican or Latin descent.

Unlike United States v. Carter, 440 F.2d 1132 (6th Cir. 1971), cited to us by appellant, the trial judge here did inquire into the racial and ethnic bias, if any, of the jury panel. His voir dire of the first prospective juror included a question with respect to prejudice regarding “race, creed, or religion.” [R.T. 73] Thereafter, he reminded the prospective jurors that all questions asked of one juror were asked of all and that the voir dire process was a cumulative one designed to probe into the juror’s state of mind to discover whether each could determine guilt or innocence based solely on the evidence presented at trial. [R.T. 89] Furthermore, upon concluding his voir dire, the trial judge, in response to a specific request by defense counsel, reiterated his query regarding racial or ethnic prejudice. [R.T. 101]

We, therefore, find that the voir dire conducted by the trial judge was adequate to secure a fair and impartial jury.

Our discussion below of eye-witness testimony makes clear our holding that the trial court’s failure to inquire into juror bias in favor of eye-witness identification was not error.

III. SUA SPONTE INSTRUCTION

Appellant argues that the “plain error” section of F.R.Crim.P. Rule 52 requires reversal in that the trial court failed to sua sponte give a cautionary instruction regarding the credibility of eye-witness testimony. The standard to be applied in Federal cases regarding plain error has been well formulated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). If the alleged error did not influence the jury, or had but a very slight effect, the error was not plain nor was it a defect affecting substantial rights.

The court’s omission to instruct on the issue of eye-witness testimony was not plain error. As in United States v. De Sisto, 329 F.2d 929 (2d Cir. 1964), the jury’s attention was focused on the issue of identity. At summation, counsel for the Government outlined for the jury what he surmised would be defense counsel’s argument, i. e. the untrustworthiness of eye-witness identification. Defense counsel in summation argued to the jury that eye-witness testimony suffers from serious distortions because of surrounding circumstances. And again, Government’s counsel in rebuttal returned to the identification issue.

Finally, we note the recent Second Circuit case, United States v. Evans, 484 F.2d 1178 (2d Cir. 1973). In Evans, defense counsel requested the trial judge to give a specific charge to the jury regarding the dangers of eyewitness identification. The trial judge declined to give such an instruction and the Second Circuit panel refused to find error, holding that such a charge is “at most * * * ” a matter of discretion. Evans, supra, 484 F.2d at 1188. Defendant’s counsel here, as in Evans, had a “full opportunity” to develop all facts relevant to identification. Furthermore, we concur with the Second Circuit’s endorsement of United States v. Barber, 442 F.2d 517, 526 (3rd Cir. 1971) cert. denied 404 U.S. 958, 92 S.Ct. 327, 30 L. Ed.2d 275 (1971) that “it is necessary neither to instruct the jury that they should receive certain identification testimony with caution, nor to suggest to them the inherent unreliability of certain eye-witness identification.”

IV. IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE

Appellant Amaral contends that the court below erred in admitting testimony and exhibits which had “virtually no probative value, were grossly prejudicial and should have been excluded from evidence.” [Appellant’s Opening Brief, p. 37]

The testimony objected to served as one link connecting appellant Amaral to the truck seen in the vicinity of the bank the morning of the robbery. We, therefore, reject appellant’s contention that the testimony “added nothing” to the Government’s case [Appellant’s Opening Brief, p. 38]. The situation before us is far different from that in Diaz-Rosendo v. United States, 364 F.2d 941, 944 (9th Cir. 1966) where this Court could “not see how, or in what manner, it [could] be said that [the evidence admitted] in any way relates to or tends to prove the commission of the . crimes set forth in the indictment.”

V. PHOTOGRAPHIC IDENTIFICATION

As a further assignment of error, appellant Amaral contends that the trial court erroneously denied appellant’s motion for a pre-trial hearing, made the day of trial, regarding proposed in-court testimony allegedly fatally tainted by an impermissibly suggestive photo spread. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Prior to Rule 41’s amendment, the law in this Circuit was clear that motions to suppress must be made before trial or hearing unless defendant lacked opportunity to move or if the court in its discretion, for some other good cause, entertained the motion during trial. United States v. Dykes, 460 F.2d 324 (9th Cir. 1972); United States v. Hamilton, 469 F.2d 880 (9th Cir. 1972).

Since the amendment to Rule 41, however, the language construed in those cases has been eliminated and the procedure governing motions to suppress is presently found in F.R.Crim.P. Rule 12. The Notes of the Advisory Committee on Rules indicate that the amendment was intended to require that the motion to suppress be made in the trial court rather than in the district in which the evidence was seized. Its purpose was to avoid duplication of effort and piecemeal adjudication. In view of these comments and in the absence of contrary indication in Rule 12, we find that the above cited cases are still the law in this Circuit. Furthermore, we have no reason to believe that discovery was inadequate to notify defense counsel of the intent by the Government to introduce evidence of an out-of-court photographic identification. Consequently, defendant’s objection to the court’s action must be rejected.

Finally, appellant’s allegations regarding an improper “show-up” resulting from the viewing by the witnesses of the defendant at the defense table shortly before trial and then being asked individually by the prosecutor whether the defendant was the person seen robbing the bank, are effectively answered in United States v. Hamilton, supra. On the authority of Hamilton, we reject this leg of appellant’s argument for relief.

VI. EXPERT TESTIMONY

The basic purpose of any proffered evidence is to facilitate the acquisition of knowledge by the triers of fact thus enabling them to reach a final determination. As often stated, our system of evidence rests on two axioms: only facts having rational probative value are admissible and all facts having rational probative value are admissible unless some specific policy forbids. 1 Wigmore, Evidence §§ 9, 10 (3d ed., 1940). Evidence which has any tenden- cy in reason to prove any material fact has rational probative value.

The general test regarding the admissibility of expert testimony is whether the jury can receive “appreciable help” from such testimony. 7 Wigmore, Evidence § 1923 (3d ed., 1940). Jenkins v. United States, 113 U.S.App. D.C. 300, 307 F.2d 637 (1962). The balancing of the probative value of the tendered expert testimony evidence against its prejudicial effect is committed to the “broad discretion” of the trial judge and his action will not be disturbed unless manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962).

The countervailing considerations most often noted to exclude what is relevant and material evidence are the risk that admission will 1) require undue consumption of time, 2) create a substantial danger of undue prejudice or of confusing the issues or of misleading the jury, 3) or unfairly and harmfully surprise a party who has not had a reasonable opportunity to anticipate the evidence submitted. Scientific or expert testimony particularly courts the second danger because of its aura of special reliability and trustworthiness.

Because of the peculiar risks of expert testimony, courts have imposed an additional test, i. e. that the testimony be in accordance with a generally accepted explanatory theory. Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923); United States v. Stifel, 433 F.2d 431 (6th Cir. 1970).

“The theory upon which expert testimony is excepted from the opinion evidence rule is that such testimony serves to inform the court [and jury] about affairs not within the full understanding of the average man.” Farris v. Interstate Circuit, 116 F.2d 409, 412 (5th Cir. 1941). See also Duff v. Page, 249 F.2d 137, (9th Cir. 1957); Cohen v. Western Hotels, Inc., 276 F.2d 26 (9th Cir. 1960). Therefore, expert testimony must also-be in regards to a proper subject.

Finally, expert testimony is admissible only when the witness is in fact an expert and is accepted as such by the trial court.

Whether the court below erred in excluding the alleged expert testimony regarding the credibility of eye-witness identification, therefore, must be decided in reference to the four outlined criteria: 1. qualified expert; 2. proper subject; 3. conformity to a generally accepted explanatory theory; and 4. probative value compared to prejudicial effect.

At the trial, defense counsel moved to introduce the alleged expert testimony of Dr. Bertram Raven, a holder of a doctoral degree in psychology. Dr. Raven’s testimony, as was made clear by the defense’s offer of proof, was to be in regards to the effect of stress on perception and, more generally, regarding the unreliability of eye-witness identification. The trial court below considered this a novel question and, in view of the Government’s opposition, requested both sides to submit authoritie's supporting their respective contentions. No appellate or trial court decision was cited by either counsel resolving the issue facing us on appeal.

The trial court, excluded the proffered testimony of Dr. Raven on the ground that “it would not be appropriate to take from the jury their own determination as to what weight or effect to give to the evidence of the eye-witness and identifying witnesses and to have that determination put before them on the basis of the expert witness testimony as proffered.” [R.T. 313].

Our legal system places primary reliance for the ascertainment of truth on the “test of cross-examination.” United States v. De Sisto, supra, at 934. In De Sisto, a truck driver, victim of a hijacking, testified as to the identity of the hijacker and gave conflicting testimony regarding the presence or absence of tattoo marks on the accused’s arms. Judge Friendly wrote that the jury was “superbly equipped” to evaluate the impact of the stress during the hijacking on the perception of the identification witness. De Sisto, supra, at 934. It is the responsibility of counsel during cross-examination to inquire into the witness’ opportunity for observation, his capacity for observation, his attention and interest and his distraction or division of attention.

Indeed, the research of Dr. Robert Buekout, whose expertise in the area of perception was acknowledged by the Government (although he was not to testify at the trial) indicates that the effects of stress on perception can be effectively communicated to the jury by probing questioning of the witnesses. In his study, Dr. Buekout reports that eye-witnesses do reply “I can’t recall, it happened so fast” [Record at 140], Certainly effective cross-examination is adequate to reveal any inconsistencies or deficiencies in the eye-witness testimony. Here defense counsel uncovered no confusion or uncertainty as to identity in any of the various witnesses. Furthermore, not all witnesses were under similar conditions of stress: one saw the accused as he sat in his car blocking the accused’s exit from the bank parking lot, another saw the accused from the safety of her house as he returned to his truck after having robbed the bank, yet another saw him as he entered the bank and approached the teller to whom he delivered the threatening note.

Accordingly, we hold that the court below did not err in excluding the testimony of Dr. Raven.

We need not reach the question, even assuming our competency to pass on it, whether the proffered testimony was in accordance with a generally accepted theory explaining the mechanism of perception. Furthermore, while we see the dangers of admitting such testimony in terms of confusing the jurors and undue delays, we believe that our holding makes it unnecessary to analyze those dangers in detail.

       Honorable Howard B. Turrentine, United States District Judge, Southern District of California, sitting by designation.

      . The term “show up” is used to describe an out-of-court confrontation between the witness and the defendant alone.


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. McArthur EDWARDS, aka Edwards McArthur and Charles Darnell Ward, Defendants-Appellants.
    No. 72-3829.
    United States Court of Appeals, Fifth Circuit,
    Jan. 28, 1974.
    Rehearing Denied March 7, 1974.

      Michael R. Schumacher, Atlanta, Ga., Ben Atkins, Atlanta, Ga., for McArthur Edwards.
    Marvin J. Zagoria, Atlanta, Ga., for Charles D. Ward.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Clinton Ashmore, Asst. U. S. Atty., Tallahassee, Fla., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

The Farmer’s Bank of Malone, Florida was held up on the morning of August 14, 1972 by three Negro males who escaped in a taxicab with almost 43,000 dollars. Within four hours officers arrested Charles Pierce and Willie Lee Ward, Jr. at the home of Priscilla Hearn, a local resident. At the time of arrest they recovered 16,900 dollars of the loot and several items of incriminating paraphernalia connected with the robbery. McArthur Edwards was arrested that afternoon and Charles Darnell Ward, the brother of Willie Lee Ward, was apprehended two days later in Atlanta, Georgia. All four men were jointly indicted for conspiracy to rob and robbery of the bank. Pierce and Willie Ward pled guilty to the charge of bank robbery and were sentenced to 20-year terms of imprisonment. Edwards and Charles Ward were jointly tried on a two-count indictment before a jury that found Edwards guilty on both counts, for which he received concurrent sentences of 20 and 5 years. Ward was acquitted of the substantive offense, but was convicted on the conspiracy charge, for which he received a five-year sentence. Because the issues raised by each are completely different, we will discuss the appeals of Ward and Edwards separately.

I.

Charles Ward contends that the district court erred in denying the motion for a judgment of acquittal he made when the government rested its case. Alternatively, he contends that the evidence adduced against him at trial cannot, as a matter of law, support his conviction.

The government’s evidence against Charles Ward was as follows. Edward Calloway, a taxidriver in Malone, testified that three Negro males waylaid him and stole his cab shortly before the robbery and that one of these highwaymen resembled Charles Ward. Leo Robinson, another Malone taxidriver, testified that on the afternoon of the robbery he picked up an unusual 100-mile fare to the Albany, Georgia bus station from a man answering Charles Ward’s description, who was carrying a grocery bag similar to those used in the robbery. The prosecution also proved that Ward’s latent fingerprint had been discovered on one of the money wrappers found in the grocery bags that had been seized in Priscilla Hearn’s house at the time of the arrest of Willie Ward and Charles Pierce. The cache discovered there also included masks, weapons and other paraphernalia that were definitely connected with the robbery.

After the government had rested, Edwards, testifying on his own behalf, stated that Ward had driven with him from Atlanta, Georgia to Marianna, Florida (a town near Malone) on the night preceding the robbery, had been present in Edwards’ motel room there when Pierce and Willie Ward had discussed the forthcoming robbery in nearby Malone, and had accompanied Edwards to the home of Priscilla Hearn (who was Edwards’ aunt) after the crime and at a time prior to the arrest of Pierce and Willie Ward at the residence. Ward’s proof consisted entirely of the testimony of one government witness whom he recalled. The record on appeal does not disclose that his retained counsel ever, subsequently renewed Ward’s motion for judgment of acquittal that had been made and denied at the time the prosecution rested its case.

The formulation of a proper test for appellate review must consider both that all of the evidence against Ward is circumstantial and that his conviction is for conspiracy. Ordinarily, “[o]n a motion for judgment of acquittal, the [appellate] test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. . . . [I]n criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.” United States v. Warner, 441 F.2d 821, 825 (5th Cir. 1971) (citations omitted), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1972); United States v. Jones, 486 F. 2d 1081 (5th Cir. 1973); United States v. Martinez, 486 F.2d 15 (5th Cir. 1973). Weighing the sufficiency of the evidence in such a case does not depend upon whether “in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude.” United States v. Fontenot, 483 F.2d 315, 321 (5th Cir. 1973).

To establish the essential elements of a conspiracy, the proof must show Ward agreed with one or more other persons to combine efforts to rob the bank, and it must show an overt act by one conspirator in furtherance of that agreement. United States v. Warner, supra. “Proof of the illegal agreement itself may rest upon either direct evidence or upon inferences drawn from relevant competent circumstantial evidence, usually the acts and declarations of the conspirators themselves, . and once the illegal conspiracy has been established, only ‘slight evidence’ is required to connect an individual defendant with the conspiracy . ” United States v. Fontenot, supra, 483 F.2d at 321 (citations omitted) ; United States v. Lee, 483 F.2d 968 (5th Cir. 1973).

The proof in the case at bar clearly shows the existence of both an illegal agreement to rob this bank and overt acts by members of that conspiracy in furtherance of the plan. The close question is whether slight evidence was adduced to connect Ward with the conspiracy. The government urges that the two taxidriver identifications, Ward’s travel to Florida and his presence in the motel room during the conspiratorial conclave, his trip with Edwards to the Hearn residence shortly after the robbery and Ward’s latent fingerprint on the money wrapper cumulatively, if not separately, are enough to complete its case. We agree. While each item of proof as to Ward, if standing alone might be too weak to support a conviction, their cumulative impact constitutes more than the slight proof necessary to connect Ward with the planning and execution of the robbery.

The cab drivers testified that on the day of the robbery a man who possessed a physical resemblance to Ward was involved in separate incidents, each of which was probatively related to the crime. The identifications were far less than positive and neither separately nor together do more than suggest that one of the three active participants in the robbery could have been Ward. Edwards’ testimony was contradictory, self-serving, confused and confusing; nevertheless, it placed Ward at the Marianna hotel room parley and at the Hearn home at critical times. However, parts of Edwards’ testimony were intended to exonerate Ward. Edwards claimed that when the robbery scheme was brought up for discussion at the pre-dawn motel room gathering Ward had said, “You’re crazy” and had gone to sleep without indicating any intention to join the conspirators. Furthermore, Edwards testified that five men had been present at this motel planning session. The weight the jury chose to assign to these parts of this story was within their province. They did not have to credit Edwards’ entire story in order to believe any part of it. Wyatt v. United States, 263 F.2d 304 (5th Cir. 1959), aff’d, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931 (1960). They could choose to accept as fact that Charles Ward had traveled from Atlanta, Georgia to the Florida conference site without also believing that he made this special trip, only to sleep through the strategy meeting. Similarly, they could doubt that a fifth man — assertedly the leader of the conspiracy — was present, in view of Edwards’ inability to supply that yet unknown person with any identification stronger than a name and the fact that every other bit of proof indicated that a maximum of four persons were involved.

If the jury believed that Charles Ward was present when the bank robbery was planned, could have been one of the men who stole Calloway’s taxi to use for the getaway, was with the confessed robbers after the crime and before their arrest, touched a money wrapper that was almost certainly taken from the bank, and met the description of a man who was in such a hurry to leave Malone with a grocery sack that he used a taxi to make a 100-mile trip, they were certainly possessed of more than slight evidence establishing that Ward was beyond a reasonable doubt guilty of conspiracy to rob the bank.

Guilt may not be inferred from mere association. “Mere knowledge, approval or acquiescence in the object or purpose of a conspiracy does not make one a conspirator.” United States v. Thomas, 468 F.2d 422, 425 (10th Cir. 1972), cert. denied, 410 U.S. 935, 93 S. Ct. 1389, 35 L.Ed.2d 599 (1973); Causey v. United States, 352 F.2d 203, 207 (5th Cir. 1965). The proof in this case showed much more than that as to Charles Ward. Six fingerprints were ultimately identified on six different money wrappers all recovered, along with other items from the robbery, at Priscilla Hearn’s. Four of the prints belonged to Willie Ward, and one each to Charles Pierce and Charles Ward. The recaptured money wrappers bore only a stamp of a' date and amount of currency. They were not identified with the name of Farmer’s Bank of Malone. Yet all were similar to each other and were of the type stolen there. At the least, Charles Ward’s print verifies that portion of Edwards’ account which placed Ward with his brother and Pierce at a time immediately after the robbery when they were still in possession of the illicit proceeds. A reasonable juror could also believe that it established that Charles Ward had handled a portion of the stolen funds.

Ward’s retained counsel did not renew his motion for judgment of acquittal at the close of all the evidence. By proffering additional testimony in Ward’s defense, reliance upon any error in the district court’s denial of his motion at the close of the prosecution’s case was waived. United States v. Jackson, 444 F.2d 1389 (5th Cir. 1971); United States v. Rawls, 421 F.2d 1285 (5th Cir. 1970); see United States v. Calderon, 348 U.S. 160, 164 n.1, 75 S.Ct. 186, 188 n.1, 99 L.Ed. 202 (1954); 2 C. Wright, Federal Practice and Procedure: Criminal § 463 (1969); see also McGautha v. California, 402 U.S. 183, 215-216, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). This waiver easts our review in the mold of one which searches the entire record to determine whether the conviction would amount to a manifest miscarriage of justice, see the cases collected in United States v. Jones, supra, and United States v. Andrews, 431 F.2d 952 (5th Cir. 1970); Fitzpatrick v. United States, 410 F.2d 513 (5th Cir. 1969) ; Smith v. United States, 403 F.2d 689 (5th Cir. 1968); or for plain error, United States v. Wallace, 417 F.2d 522 (5th Cir. 1969).

We find no such miscarriage or error here for the cumulative effect of the circumstances disclosed by this record are more than sufficient to support the jury’s determination that slight evidence had been shown which connected Charles Ward with this conspiracy.

II.

Edwards’ case presents a more complex procedural posture. Prior to trial his court-appointed counsel requested a severance and separate trial. In addition, on the basis of a previous mental examination and reports from Edwards’ counsel in another case, he asked the district court under the applicable provisions of the Criminal Justice Act, 18 U. S.C. § 3006A(e), to appoint a qualified psychiatrist at government expense to assist him in preparing Edwards’ defense. The district judge refused to sever but granted the motion under § 3006A(e) and appointed Dr. Royce Jackson. Dr. Jackson examined Edwards and filed a report of his examination with the clerk of court in which he diagnosed Edwards as “an immature personality” exhibiting “simple schizophrenia with depression, sociopathic tendencies, religiosity and passive dependent features.” He opined that “the defendant was competent at the time of the commission of the alleged offense, although there is no exact way to tell this without having been present at the time” and further stated that Edwards understood the nature of the charges against him and would be able to aid in his defense. On the basis of this psychiatric evaluation, the district court entered an order adjudging Edwards competent to be tried within the purview of 18 U.S.C. § 4244 and ordering him to stand trial.

In challenging the denial of his motion for severance and a separate trial Edwards does not attack the propriety of his initial joinder with the co-defendants in the indictment. Since both appellants were alleged to have conspired to commit and to have committed precisely the same crime, the joinder was clearly within the ambit of Fed.R. Crim.P. rule 8(b). The error is alleged to have occurred in failing to grant a severance.

The general rule is that persons jointly indicted should be tried together, especially in conspiracy cases. “A mere showing of some prejudice has usually been insufficient, for qualitatively it must be the most compelling prejudice against which the trial court will be unable to afford protection.” United States v. Perez, 489 F.2d 51, at 65 (5th Cir. 1973) (emphasis in original). Consequently, the district judge was called upon to make a determination under Fed.R.Crim.P. 14 whether a joint trial would be compellingly prejudicial. “The appellate review of the exercise of that discretion is extremely narrow and the trial judge’s discretion will not be disturbed unless movant makes a positive showing that he has been prejudiced by the ruling.” United States v. Kershner, 432 F.2d 1066, 1071 (5th Cir. 1970).

United States v. Martinez, supra; United States v. Nakaladski, 481 F.2d 289 (5th Cir., 1973); United States v. Levrie, 445 F.2d 429 (5th Cir. 1971). Edwards now asserts that his insanity defense made out a case of such compelling prejudice as to demonstrate reversible error. The problem for this claim is that Edwards never raised or suggested his insanity as a defense at any point in the proceedings subsequent to his initial motion and the report by Dr. Jackson. Hence, any suggestion that he was somehow prejudiced before the jury because the issue of his sanity formed a part of his defense is patently frivolous. “Demonstrating that the judge abused his discretion in denying a motion for severance requires more than the suggestion that a separate trial might have offered a better chance for acquittal.” United States v. Bullock, 451 F.2d 884, 889 (5th Cir. 1971); United States v. Perez, supra. Weighing the benefits of judicial economy against the absence of any hint of prejudice against him, the trial judge correctly denied Edwards’ motion for severance and separate trial. See United States v. Carlson, 423 F.2d 431, 435-436 (9th Cir. 1970); United States v. Satterfield, 410 F.2d 1351, 1353 (7th Cir. 1969) (bifurcation of the insanity defense).

Edwards next contends that the manner in which his Section 3006A(e) motion for appointment of a psychiatrist was handled evinced district court error because it denied to him the psychiatric assistance authorized by the statute. In the same vein he asserts that the failure of his court-appointed counsel to present an insanity defense at trial denied him his Sixth Amendment right to effective assistance of counsel. Citing United States v. Hamlet, 456 F.2d 1284 (5th Cir. 1972), he argues that the district court’s action in ordering him to trial on the basis of Dr. Jackson’s determination of his sanity operated effectively to deny his Section 3006A(e) motion. In Hamlet a psychiatrist had been appointed at the government’s request pursuant to Section 4244 to determine Hamlet’s competency to stand trial. At a pre-trial hearing that psychiatrist testified that Hamlet was competent to stand trial and the court found competency to exist. Thereafter the trial court, based on its Section 4244 action, denied relief under Section 3006A. This court held that the appointment of a psychiatrist under Section 4244 “falls short of fulfilling the role of an expert selected under Section 3006A(e) whose responsibility is to assist the defense, and of one appointed under Rule 28, whose participation is expected to be wholly objective.” We held that the trial court erred in denying Hamlet’s Section 3006A(e) motion without conducting the ex parte inquiry required by the statute.

The case at bar is distinguishable from Hamlet. Although it is apparent that the two district judges (one handled pre-trial procedures and the other conducted the trial) confused Edwards’ Section 3006A motion with the proceedings contemplated by Section 4244, it is undisputed that Edwards’ Section 3006A motion was granted and that a psychiatrist was appointed who examined and evaluated Edwards. Just why Dr. Jackson reported his findings to the court, thus making them available to both parties rather than giving his report to Edwards and his counsel alone remains a mystery. The problem with faulting the trial court for the resulting mixup is that no objection was ever raised to this action as a procedural mistake.

The government argues that any error here was harmless since the psychiatrist and his findings were indeed available at all times before trial to assist Edwards’ counsel in preparing his defense. It therefore contends that the Section 3006A(e) motion was simply abandoned by counsel rather than being implicitly or explicitly abridged by the court’s subsequent actions under Section 4244.

However, we do not reach that contention. The very same default that excuses the court requires that we carefully explore Edwards’ claim here that he was denied his Sixth Amendment right to effective assistance of counsel at trial. Edwards’ appointed attorney initially requested the trial court also to appoint a psychiatrist under Section 3006A(e) “to examine defendant” and “to assist his counsel in the defense of his case.” In an accompanying affidavit, counsel cited (1) the report of a previous examination of defendant to determine his competency to stand trial, (2) counsel’s personal conversations with defendant which evidenced “certain psychiatric problems” that could well have existed when the crime was committed, (3) the representations of Edwards’ former counsel in a prior criminal case who had encountered “similar psychiatric problems” indicating the possibility of legal insanity, and (4) his belief that psychiatric assistance was essential for Edwards’ defense. In addition, counsel pointed out that the physician who conducted the antecedent examination had noticed “a marked improvement” in Edwards’ condition, and that this tended to indicate that Edwards’ competency to stand trial would not be determinative of his competency or legal sanity at the time the offense was committed.

The district judge who handled the pre-trial motions consolidated the motion for severance with the request “for appointment of a qualified psychiatrist at government expense to conduct an independent mental examination of defendant to determine [Edwards’] competency at the time of the commission of the alleged offense.” The court expressly granted the Section 3006A(e) motion and ordered that Dr. Jackson be appointed to examine Edwards at government expense and to serve.as an expert witness. However, after Dr. Jackson made the results of his examination available to the court rather than confidentially reporting his findings to the party he was appointed to assist, the court entered an order based on this report, which was described as having been filed with the court “as directed by the Court.” That order adjudicated that Edwards was competent to stand trial under Section and directed that his trial proceed. As stated, Edwards’ counsel never again raised or suggested the issue of insanity or imcompetency or objected to the court’s treatment of the matter as one under Section 4244 prior to or during the trial on the merits.

The perplexing course of events following the court’s adjudication that Edwards was entitled to the benefits of Section 3006A demonstrates that Edwards never received the full fruits contemplated by that statute. The court’s handling of his request for expert assistance reflected either an inadvertent error or a basic misunderstanding of the function performed by a psychiatric expert appointed to assist defense counsel under the Criminal Justice Act. In United States v. Theriault, 440 F.2d 713 (5th Cir. 1971), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973), this court discussed the varying roles performed by psychiatrists who are appointed to assist the court or the parties under several distinct enabling statutes.

Sec. 4244 concerns examination to determine if the defendant is competent to stand trial. The court appoints a psychiatrist who examines the accused and reports to the court. Rule 28 authorizes the court to appoint its own expert witness, who is expected to be neutral and detached. He advises the parties of his findings. See Rule 28 and Wright, Federal Practice and Procedure, § 452. The § 3006A(e) expert fills a different role. He supplies expert services “necessary to an adequate defense,” which embraces pre-trial and trial assistance to the defense as well as availability to testify. His conclusions need not be reported to either the court or the prosecution.

440 F.2d at 715. A Section 3006A(e) psychiatrist is appointed solely to serve the interests of the defendant. -Although Edwards received a psychiatric examination as a result of the trial court’s action, the record fails to show that he was ever assisted in preparing for trial. Section 3006A(e) provides that its benefits may be secured in ex parte proceedings with the same confidentiality expected of a private doctor-patient relationship. Obviously Dr. Jackson mistakenly thought that his findings were to be communicated to the court and the prosecution. Dissemination of information critical to the defense permits the government to enjoy unauthorized discovery which is forbidden under our concept of criminal procedure and the statute. Moreover, although the order directing appointment of the expert is well within the sound discretion of the district judge, the statute indicates that the court’s function is to deternine whether such aid is necessary. If necessity is found to exist then the court “shall authorize counsel to obtain the services.” Except in unusual circumstances the choice of a particular practitioner should be left to counsel.

Did counsel make some unexplained and indiscernible strategic decision not to follow through on the court’s grant of his motion? Or did counsel fail to understand or appreciate the significance of his client’s rights under this part of the Criminal Justice Act? Regardless of which conjecture is correct, did this inaction amount to deprivation of Sixth Amendment assistance of counsel? The answer is not easy.

“The actual standard of ineompetency applied by the overwhelming majority of courts is stated as follows: Incompetency of counsel such as a denial of due process and effective representation of counsel must be such as to make the trial a farce, sham, or mockery of justice.” [Citation omitted.] This Court has defined “effective counsel” in terms of a “reasonable counsel” standard: “We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592.

Brown v. Beto, 377 F.2d 950, 957-958 (5th Cir. 1967), quoted in King v. Beto, 429 F.2d 221, 225 (5th Cir. 1970). See also McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449, 25 L. Ed.2d 763 (1970). “It is the particular facts in each case — the actual conduct of the attorney with relation to his client from arrest to final judgment — that determines whether the attorney has provided the constitutionally required effective assistance of counsel.” Chalk v. Beto, 429 F.2d 225, 226 (5th Cir. 1970). See United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970).

This court has long recognized a particularly critical interrelation between expert psychiatric assistance and minimally effective representation of counsel. For example, in Bush v. McCollum, 344 F.2d 672 (5th Cir. 1965), we held that a state defendant, who had previously been adjudicated insane and whose pre-trial motions for institutionalization or appointment of a psychiatrist were denied, was deprived of both a fair trial and effective assistance of counsel when the state court found him guilty and sentenced him to life imprisonment without the benefit of any psychiatric testimony. In so ruling, we approved the following language in the district court’s opinion:

In order for Bush in the instant case to have the effective aid of counsel, it was necessary for his counsel to have the assistance of a qualified psychiatrist and a trial, without expert evidence as to sanity, which found him sane and resulted in a life sentence is so lacking in fairness as to be a denial of liberty without due process of law, contrary to the Fourteenth Amendment.

231 F.Supp. 560, 565 (N.D.Tex.1964).

Similarly, in Hintz v. Beto, 379 F.2d 937 (5th Cir. 1967), the trial court denied the motion of a defendant, who had a long history of mental instability, for continuance despite the fact that his counsel did not receive the results of a psychiatric examination of the defendant until the trial was about to commence. We held that the right to counsel afforded under the Sixth Amendment means the effective assistance of counsel and effective assistance requires time for preparation. The Hintz court stated: “Time for preparation, where mental competency is in question and there is a fair factual basis as here for the question, would at least include a reasonable time within which to have a defendant examined, and for preparation of such defense as might be based on the facts developed by the examination.” 379 F.2d at 941. Further, we expressed the view that even the report of an examination which concludes that the defendant is sane “may not obviate defendant’s Federal constitutional right to have a lawyer who has an opportunity to prepare his defense and that this right would include time for studying and evaluating the report.” 379 F.2d at 942.

Finally, we are guided by Greer v. Beto, 379 F.2d 923 (5th Cir. 1967). Greer had a long history of mental instability. He was found to be sane by a jury at a preliminary sanity trial on the basis of the expert testimony of a medical doctor not formally trained in psychiatry. Greer was represented by a different court-appointed attorney at the subsequent trial on the merits. We found that a prima facie ease of inadequate assistance of counsel had been established based upon (1) his trial attorney’s failure to offer medical testimony after the issue of defendant’s sanity was submitted to the trial jury, (2) counsel’s introduction into evidence of the jury verdict in the sanity trial, and (3) counsel’s complete lack of knowledge about the defendant’s prior psychiatric examinations.

Consistent with these principles, other circuits as well as our own have evaluated whether counsel for mentally suspect defendants erred in failing to investigate or pursue a defense of insanity or incompetency to stand trial by appraising the facts known and available or with minimal diligence accessible to defense counsel and determining whether those facts raise reasonable doubt as to the defendant’s mental condition. In many cases, of course, trial tactics could dictate an attorney’s decision not to rely upon or advance an insanity defense. Courts hesitate to fault such decisions by facile hindsight, because opinions could readily differ between lawyers and judges as to the proper strategic course to follow in varying circumstances.

In the present case, however, the error attributed to Edwards’ counsel lies not in any failure to present the insanity defense at trial — a decision that may have been dictated by Dr. Jackson’s report — but in failing to pursue his successful Section 3006A(e) motion and to object when subsequent proceedings made it evident that the court was treating the matter as though it arose under Section 4244. The result was that Edwards, who had been adjudged to be statutorily entitled to the benefit of psychiatric help under the Criminal Justice Act, received only a portion of the assistance that was the predicate for the initial request his counsel addressed to the court. Moreover, the doubts about Edwards’ mental competency that counsel himself had raised in his affidavit supporting the motion simply could not have been so clearly resolved by the report of Dr. Jackson’s examination as to justify a complete abandonment of the § 3006A(e) motion.

We are unwilling to hold that Edwards’ counsel was so lacking in ability as to make his trial a farce, a sham or a mockery of justice. The record reflects, much to the contrary, that his representation was professional and adequate. The problem reduces itself to that part of the record related to the critical issue of sanity and more narrowly to adequate psychiatric assistance in relation to that issue. In the cold light of the written record of this proceeding we cannot say that Edwards received “counsel reasonably likely to render and rendering reasonably effective assistance.” Accordingly, we reverse his convictions and remand his ease to the district court for a new trial.

In conclusion it is well to emphasize that we do not make or intimate any decision on any facet of such retrial proceedings. We mean to leave counsel for Edwards free to conduct his defense in such manner as his professional judgment dictates. The district court is to remain equally unfettered from prejudgment on our part in ruling on any pretrial or trial phases of such defenses as may be offered, including Edwards’ sanity at the time of the offense or his mental ability to stand trial again.

Affirmed as to Charles Darnell Ward; reversed and remanded as to McArthur Edwards.

      . The record on appeal contains no transcript of any trial court proceedings after the close of the evidence. No entry reflecting a motion for acquittal after all proof is reflected by the docket or by any written pleading on file.

      . (e) Services other than counsel.—

      (1) Upon request. — Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.
      18 U.S.C. § 3006A(e) (Supp.1973).

      . Mental incompetency after arrest and before trial

      Whenever after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation the United States Attorney has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in Ms own defense, he shall file a motion for a judicial determination of such mental competency of the accused, setting forth the ground for such belief with the trial court in which proceedings are pending. Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused, whether or not previously admitted to bail, to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. For the purpose of the examination the court may order the accused committed for such reasonable period as the court may determine to a suitable hospital or other facility to be designated by the court. If the report of the psychiatrist indicates a state of present insanity or such mental incompetency in the accused, the court shall hold a hearing, upon due notice, at which evidence as to the' mental condition of the accused may be submitted, including that of the reporting psychiatrist, and make a finding with respect thereto. No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding. A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.
      18 U.S.C. § 4244.

      . In view of our disposition of Edwards’ other assertions of error, we do not reach his contentions that the trial court erred (1) in precluding jury consideration of his insanity defense on the basis of Dr. Jackson’s pre-trial report of his psychiatric examination of the defendant, (2) in not raising sua sponte the issue of defendant’s mental competency when Dr. Jackson’s diagnosis raised doubt thereto under the standard set forth in Blake v. United States, 407 F.2d 908, 916 (5th Cir. 1969), see, e. g., Mims v. United States, 375 F.2d 135, 140 (5th Cir. 1967), and (3) in denying Ms motions for judgment of acquittal N.O.V. and for a new trial. Edwards’ counsel on appeal has made an ex parte tender of additional medical evidence of his client’s psychiatric history not submitted to the court below. We decline to consider on this appeal any matters outside the record. Our function is to review cases, not to try them de novo.

      . See United States v. Sutton, 464 F.2d 552 (5th Cir. 1972) ; Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970).

      . For a discussion of the. standards that district judges should employ in disposing of § 3006A(e) motions for expert psychiatric assistance see United States v. Chavis, 155 U.S.App.D.C. 190, 476 F.2d 1137 (1973); United States v. Theriault, supra.

      . We note that the Fourth Circuit has adopted an advisory policy for the guidance of its judges in sucli situations.
      By a way of guidance to the district judges, we suggest that ordinarily the appointment of a psychiatrist under 18 U.S.C. § 3006A should be with the advice and approval of counsel for the particular defendant. Unless some reason affirmatively appears, and is reflected in the record, we think that the psychiatrist preferred by the defendant should be selected by the court. See United States v. Schappel, 144 U.S.App. D.C. 240, 445 F.2d 716 (1971); United States v. Taylor, 437 F.2d 371 (4th Cir. 1971). We do not Bold that the district judge must always appoint a psychiatrist chosen by a defendant, but we think he should ordinarily do so. We assume, of course, that if the psychiatrist of defendant’s choice is appointed by the court, that the court will also require the defendant to submit to examination by a psychiatrist of tiie government’s choice. If the district judge, for sufficient reason, prefers to participate in the selection process, it would ordinarily be within his discretion to require the defendant to nominate two or three doctors from whom the judge may then appoint one — assuming multiple availability of psychiatrists in a given division. United States v. Matthews, 472 F.2d 1173, 1174-1175 (4th Cir. 1973). See also United States v. Bass, 477 F.2d 723 (9th Cir. 1973).

      . “Effective counsel includes familiarity of counsel with the case and an opportunity to investigate it if necessary in order meaningfully to advise the accused of his options.” Calloway v. Powell, 393 F.2d 886, 888 (5th Cir. 1968).

      . See United States ex rel. Marcelin v. Mancusi, 462 F.2d 36 (2d Cir. 1972); Lee v. Wainwright, 457 F.2d 771 (5th Cir. 1972); United States v. Spenard, 438 F.2d 717 (2d Cir. 1971); United States v. Mancuso, 423 F.2d 23 (5th Cir. 1970), cert. denied, 400 U.S. 839, 91 S.Ct. 79, 27 L.Ed.2d 73 (1971); Andrews v. United States, 403 F.2d 341 (9th Cir. 1968); Owsley v. Peyton, 368 F.2d 1002 (4th Cir. 1966); Tahl v. O’Connor, 336 F.Supp. 576 (S.D.Calif.1971), aff’d, 460 F.2d 1068 (9th Cir. 1972), cert. denied, 409 U.S. 1042, 93 S.Ct. 536, 34 L.Ed.2d 493 (1973); United States ex rel. Johnson v. Brierley, 334 F.Supp. 661 (E.D.Pa.1971); Brizendine v. Swenson, 302 F.Supp. 1011 (W.D.Mo.1969).


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Errol Bernard RESNICK, Defendant-Appellant.
    No. 73-1316.
    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1974.

      Barry L. Garber, Miami, Fla. (court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Harrison T. Slaughter, Jr., Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.
    Before BELL, DYER and CLARK, Circuit Judges.
   DYER, Circuit Judge:

Resnick was convicted for selling firearms to persons whom he knew or had reasonable cause to believe were non-residents of the state of his place of business, a violation of 18 U.S.C.A. § 922(b)(3), and for failing to keep the appropriate firearms transaction records required by Í8 U.S.C.A. § 922(b)(5), § 922(m), and § 923(g). The only points on appeal that merit discussion are that testimony by a government witness suggesting Resnick’s involvement in unrelated criminal activity requires a reversal, and that the firearms transaction record-keeping provisions are violative of the fifth amendment privilege against self-incrimination. We affirm.

Resnick was the president-owner of E.B.R. Enterprises, a licensed dealer in firearms, which operated Triggermart, a gun shop in Orlando, Florida. On January 25, 1971, two Georgia residents, Miles and Walker, decided to purchase two pistols at Triggermart. Because, federal law prohibits the sale of firearms to non-residents, when the men tendered out-of-state checks, Resnick informed them that only in-state checks were acceptable. It was then agreed that the purchasers would arrange to have a check sent to Triggermart from an auto dealership in Cocoa, Florida, in which they were stockholders and officers. The manager of the dealership later mailed the check according to the instructions given by Miles and Walker, but the guns were never inventoried to the corporation. Rather, Resnick delivered the pistols to the two men after paying the purchase price from his own pocket. He later placed the check from the dealership in Triggermart’s cash register and withdrew the money.

After the financial details had been settled, Resniek inquired of those present in the store if any of the Florida. residents would be willing to “sign out” the guns. A Triggermart employee, Nancy Gray, consented and filled out the firearms transaction records indicating that she was the transferee of the two pistols. Miles and Walker filled out no forms, apparently unaware of the circumvention of the state residency requirement.

The second transaction for which Res-nick was prosecuted was initiated on March 18, 1971. On that date, an undercover agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department, Lloyd Michael Steele, entered Triggermart and indicated to Res-nick that he wanted to purchase two pistols, but did not want to sign for them. Resnick responded that the problem could be solved by purchasing a hunting and fishing license which could be used as “identification” for the firearms purchase. Agent Steele gave his name as Michael L. Steed, but told Resnick that the name was fictitious. Not only did Resnick respond that the use of a phony name made no difference to him, but he also suggested that the address Agent Steele gave, 115 Gore Avenue, Daytona Beach, Florida — which Resnick also knew to be a sham — be changed to 115 Gore Avenue, Orlando. The bogus hunting and fishing license was then used as identification for the purchase of two pistols on that day and for the purchase of another pistol on April 7, 1971.

Resniek’s first claim of error stems from the following testimony elicited by the prosecution during direct examination of Agent Steele:

Q. Now, sir, after you purchased the weapons, what did you do then?

A. We had some conversation. He has a coffee vendor in there. I think I asked him if he had some coffee, and we were drinking coffee, and we had some conversation.

And he asked me could I handle any hot guns; and I said, “Most likely. All the guns I handle are hot, anyhow.”

Well, he says, “It does not make any difference to me.” And—

Q. And then what did you say after he said it did not make any difference to him ?

A. That was the end of that part of the conversation.

Q. What happened after that conversation ?

A. After that conversation, he had mentioned something about an AK 180, I think it is, and I asked him if that was the type of weapon — it had a selector switch on it that did not work, that did not change it from automatic to full automatic — from a semi-automatic to a fully automatic — and he stated, yes, it was all that he had to do was remove the spring to make it fully automatic.

And I asked him would he show me how to do this.

And he said, yes, which he did show me that night.

Following this exchange, defense counsel moved for a mistrial on the ground that Resnick had been prejudiced by the introduction of evidence of unrelated criminal activity, namely by the implication that the defendant dealt in stolen guns and participated in the unlawful alteration of semi-automatic weapons to fully automatic ones. The trial judge properly denied the motion for a mistrial, and stated that he would instruct the jury to disregard the tainted series of questions and answers. Conner v. United States, 5 Cir. 1963, 322 F.2d 647, cert. denied, 1964, 377 U.S. 907, 84 S.Ct. 1167, 12 L. Ed.2d 178.

For reasons entirely unknown to us, the district court did not give the promised curative instructions, and defense counsel made no further reference to the matter. In fact, at the post instruction conference for objections to the charge as given, Resnick’s attorney stated that he had no objection. We need not decide whether defense counsel’s failure to call the district court’s attention to the omission of the promised instructions makes applicable the plain error rule of F.R.Crim.P. 52(b), since the error, if any, is harmless.

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand ....

Kotteakos v. United States, 1946, 328 U. S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557; F.R.Crim.P. 52(a). In the circumstances of this case, we are convinced that the substantial rights of Resnick were not affected.

[W]e have carefully canvassed the entire record and transcript, and are convinced that no prejudice resulted in any wise affecting the verdict of the jury. The evidence of defendant’s guilt is strong, clear and convincing beyond question.

United States v. Christian, 8 Cir. 1970, 427 F.2d 1299, 1303, cert. denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148. Cf. United States v. Ratner, 5 Cir. 1972, 464 F.2d 169, 172-173.

The second issue that we must determine is whether the record-keeping provisions of the federal firearms laws are violative of the fifth amendment privilege against self-incrimination. In support of that position, Resnick relies on Leary v. United States, 1969, 395 U. S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, and Haynes v. United States, 1968, 390 U.S. 85, 88 S. Ct. 722, 19 L.Ed.2d 923. Such reliance is misplaced, however, since the challenged laws sub judice are not directed at a highly selective group inherently suspect of criminal acts, as was the situation in Marchetti and its progeny, see e. g. United States v. Walden, 4 Cir. 1969, 411 F.2d 1109, 1111, cert. denied, 396 U.S. 931, 90 S.Ct. 271, 24 L.Ed.2d 230. Rather the statutes regulate an essentially noncriminal activity, the sale of firearms. Such regulation is permissible under the “required records” doctrine established by decisions such as Shapiro v. United States, 1948, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, and United States v. Sullivan, 1927, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, and recently reaffirmed by the Supreme Court.

[Tjhere is some possibility of prosecution — often a very real one — for criminal offenses disclosed by or deriving from the information that the law compels a person to supply. Information revealed by these reports could well be “a link in the chain” of evidence leading to prosecution and conviction. But under our holdings the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure

California v. Byers, 1971, 402 U.S. 424, 428, 91 S.Ct. 1535, 1538, 29 L.Ed.2d 9. We conclude, therefore, that Resnick’s fifth amendment attack on the firearms transaction record-keeping provisions must also fail.

We have fully considered the other points raised on appeal and find them to be without merit.

Affirmed.

      . 18 U.S.C.A. § 922(b)(3) provides in relevant part:
      It shall be unlawful for any ... licensed dealer ... to sell or deliver— any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located ....

      . Although the firearms could lawfully have been sold to the Florida corporation, the evidence is clear that the sale was not to the corporation, but to the men personally.

      . 18 U.S.C.A. § 922(b) (5) provides in relevant part:
      It shall be unlawful for any ... licensed dealer ... to sell or deliver— any firearm or ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person if the person is an individual, or the identity and principal and local places of business of such person if the person is a corporation or other business entity.
      18 U.S.C.A. § 923(g) requires each licensed dealer to “maintain such records of sale, or other disposition, of firearms and ammunition at such place, for such period, and in such form as the Secretary may by regulations prescribe.” 26 C.F.R. § 178.124 requires a licensed dealer to maintain a firearms transaction record, Form 4473, for each firearm sold or otherwise disposed of.

      . 18 U.S.C.A. § 922(m) provides:
      It shall be unlawful for any . .. licensed dealer . . . knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to properly maintain, any record which he is required to keep pursuant to section 928 of this chapter or regulations promulgated thereunder.

      . In early May of 1971, Resnick instructed Nancy Gray to destroy the firearms transaction records which Agent Steele had completed and to make out replacements. The only alteration was to be that the identification used was the number of a blank Florida driver’s license supplied by Resnick.