author: THORNBERRY, Circuit Judge: BELL, Circuit Judge

text:
    UNITED STATES of America and James S. Mabrey, Special Agent of the Internal Revenue Service, Plaintiffs-Appellees, v. C. D. KASMIR and Jerry A. Candy, Defendants-Appellants.
    No. 73-1973.
    United States Court of Appeals, Fifth Circuit.
    Aug. 21, 1974.

      Cyril David Kasmir, pro se; Edward A. Copley, Jr., Robert E. Goodfriend, Dallas, Tex., for defendants-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Jeffrey D. Snow, Atty., Ernest J. Brown, Acting Chief, Meyer Rothwacks, Atty., Tax Div., Dept, of Justice, Washington, D. C., Frank D. McCown, U. S. Atty., Kenneth J. Mighell, Asst. U. S. Atty., Fort Worth, Tex., Robert E. Lindsay, John P. Burke, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff s-appellees.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   THORNBERRY, Circuit Judge:

In United States v. White, 5th Cir. 1973, 477 F.2d 757, aff’d en banc, 487 F.2d 1335, we phrased the issue presented thusly:

whether the constitutional privilege against compulsory self-incrimination may be invoked in behalf of a taxpayer by his attorney to prevent the production of income tax workpapers in his attorney’s possession ...

That same issue is before us again, this time with a different factual background.

On January 3, 1973, the taxpayer, Dr. Mason, was visited in his office in Dallas, Texas, by two Special Agents of the Internal Revenue Service who informed Dr. Mason that his tax returns for the years 1969, 1970, and 1971 were under investigation and gave him Miranda warnings. During the visit, one of the Special Agents asked to see Dr. Mason’s personal books and records. Mr. Mason complied with the request, but at the same time, he called his accountant Candy, who advised him not to show any of his records to the Agents. The doctor followed Candy's advice, withdrew the records on the desk, and concluded the interview.

Following Dr. Mason’s call to Candy, Candy called Kasmir and informed him of the visit. At Candy’s request, Kasmir called Dr. Mason that afternoon and was retained by the doctor as his attorney. Early the next morning, at the direction of his employer, Candy delivered an assortment of records and documents to Dr. Mason at the doctor’s office, and simultaneously relinquished to the taxpayer “the rightful, indefinite and legitimate possession of” the materials. Within minutes of receiving the materials, the taxpayer turned them over to appellant Kasmir as his attorney.

The next day summonses were served on Candy and Kasmir, ordering the latter to give up the documents and the former to give testimony concerning them. When neither appellant agreed to comply with the summonses, the government sought enforcement. In a pre-White and pre-Couch v. United States hearing and order, the district court granted the government’s petition on the grounds that the records were owned by the accounting firm and that at the time the summonses were served, the records were in Kasmir’s possession. The district court stayed its order pending this appeal.

Appellants contend that in the circumstances of this case, (1) the taxpayer’s attorney has standing to raise the taxpayer’s constitutional right to be free from self-incrimination, (2) enforcement of the summons for the production of records violates the taxpayer’s Self-Incrimination Privilege, and (3) enforcement of the summons for production of records should be denied because IRS agents materially misrepresented themselves before the taxpayer.

Following the procedure employed in White, we begin with appellants’ second contention, for recognition of standing in the attorney would be of little comfort to appellants unless the attorney’s client does have Fifth Amendment rights in the summoned materials. Appellants contend here, as the appellant did in White, that enforcement of the summons violates the taxpayer’s privilege because possession of the records by the taxpayer’s attorney constitutes constructive possession by the taxpayer. Initially faced with our en banc decision in White as a formidable wall to scale, appellants have launched a methodical effort in order to disabuse us of the notion that White compels their defeat. They argue that the taxpayer doctor’s actual possession of the summoned documents is a crucial factual distinction between this case and White. They see further significance in the fact that here the taxpayer turned the papers over to his attorney pursuant to their attorney-client relationship while in White the transfer of the documents was not from the client to the attorney but from the taxpayers’ accountant to the attorney. Both parties agree that the question before this court is whether those factual differences warrant a result different from that reached in White.

The government attacks the appellants’ position from two sides. First, the government argues that an accused may not object to summons of records owned by third parties even if in the accused’s possession. The government’s theory is that an accused cannot invoke the Fifth Amendment privilege against self-incrimination unless he both owns and possesses the documents in question. Second, the government contends that the taxpayer never had “rightful possession” of the papers because this enterprise by the appellants and the taxpayer was “a frantic last minute effort to put the requested records beyond the reach of a legitimate tax investigation” by “winning a footrace with agents of the government.”

In the theatre of criminal tax investigations, few issues have been more hotly contested than the determination of the scope of the Fifth Amendment privilege against self-incrimination. Drawing heavily upon the historical evolution of the privilege, the Supreme Court in Couch v. United States, 1973, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548, has now spoken on the subject before us in a manner that guides our journey far down the road to judgment, but not to the very end. Lillian Couch was the sole proprietress of a restaurant who, since 1955, had given all of her financial records to an independent accountant for the purpose of preparing her income tax returns, although she retained title to the records. After a' summons had been issued and served upon the accountant, the taxpayer instructed the accountant to deliver all of the sought-after documents directly to her attorney. In upholding enforcement of the summons against the accountant, ■ the Supreme Court held that the taxpayer had no Fifth Amendment privilege in documents which she merely owned, which had been in the continuous possession of an independent accountant for over a decade,- and with respect to which she could show no legitimate expectation of privacy.

The Court began its inquiry by quoting from Murphy v. Waterfront Comm’n of New York Harbor, 1964, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, on the nature of the Self-Incrimination Privilege and the interests it was designed to protect. Writing for the Court in Murphy, Justice Goldberg offered this statement:

It [the privilege] reflects many of our fundamental values and most noble aspirations: our unwillingness to- subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,” 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life,” United States v. Grunewald, 2 Cir., 233 F.2d 556, 581-582 (Frank J., dissenting), rev’d 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.” Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964.

Id., 378 U.S. at 55, 84 S.Ct. at 1596-1597.

The Couch Court held that actual possession, rather- than ownership, “bears the most significant relationship to Fifth Amendment protections against state compulsions upon the individual accused of crime.” Couch v. United States, supra, 409 U.S. at 333, 93 S.Ct. at 618. But the Court was careful to note that “actual possession” is not necessarily the sine qua non for successful assertion of the Fifth Amendment privilege :

Yet situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact . . .

Id. The Court explained further:

. We do indeed attach constitutional importance to possession, but only because of its close relationship to those personal compulsions and intrusions which the Fifth Amendment forbids . . . [W]e do not adopt any per se rule. We also decline to conjecture broadly on the significance of possession in cases and circumstances not before this Court

Id., 409 U.S. at 336, 93 S.Ct. at 620 n. 20.

As a positive indication that lack of physical possession is not necessarily determinative, the Court did not stop with its conclusion that the papers were in the possession of the accountant, not the taxpayer, at the time the summons was served, but inquired further into the nature of the records sought by the summons and concluded that the taxpayer could show no legitimate expectation of privacy with regard to them because

. there can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax return. What information is not disclosed is largely in the accountant’s discretion, not petitioner’s. Indeed, the accountant himself risks criminal prosecution if he knowingly assists in the preparation of a false return . . . His own need for self-protection would often require the right to disclose the information given him. Petitioner seeks extensions of constitutional protections against self-incrimination in the very situation where obligations of disclosure exist and under a system largely dependent upon honest self-reporting even to survive. Accordingly, petitioner here cannot reasonably claim, . ., an expectation of protected privacy or confidentiality.

Id., 409 S.Ct. at 335, 93 S.Ct. at 619, 34 L.Ed.2d at 558. Thus the method adopted by the Court focuses the inquiry on two factors: (1) the party in possession of the evidence and (2) where the actual possessor is not the taxpayer, the taxpayer’s legitimate expectation of privacy with regard to the evidence. By considering not only the question of physical, personal compulsion upon the accused, but also any expectation of privacy which might reasonably attach to the summoned materials, the Court was weighing the extent to which any of the variety of policies enumerated in Murphy would be furthered by application of the privilege. Indeed, in Murphy, the Court noted that “it will not do . to assign one isolated policy to the privilege,” and on that basis to decide whether applying the privilege is in furtherance of “the” policy. Murphy v. Waterfront Comm’n of New York Harbor, supra, 378 U.S. at 56 n. 5, 84 S.Ct. at 1597 n. 5.

We had our first opportunity to apply the lesson of Couch only recently in United States v. White, supra, 477 F.2d 757, aff’d en banc, 487 F.2d 1335. After an IRS investigation had commenced but prior to the issuance of a summons, the taxpayers’ accountant had turned over workpapers and other documents directly to the taxpayers’ attorney White. A year later, a summons was served upon the attorney who resisted enforcement by asserting his client taxpayers’ Fifth Amendment privilege. Since the taxpayers were obviously not in actual possession of the requested material, their only hope lay in their contention that they were in constructive possession through their attorney. Although the high court did not attempt to define that term in Couch, in writing for this court in White, Judge Gewin attempted to explicate the Supreme Court’s thinking:

. As possible examples of such a case the Court cited Schwimmer v. United States and United States v. Guterma. In both of these cases a claim of privilege was successfully asserted to prevent the government from obtaining documents the parties had temporarily stored on the premises of corporations. The reference to these cases in Couch indicates that a claim of privilege might be valid on the constructive possession theory if the taxpayer has placed papers in the hands of another person or entity for custodial safekeeping, thereby retaining the right to immediate possession though not having actual possession

United States v. White, supra, 477 F.2d at 763. Unfortunately for the taxpayers in White, they could not fall within that definition. The taxpayers had never been in actual possession of the papers sought by the government. The attorney had obtained the documents directly from the accountant without record evidence that he had done so upon the taxpayers’ instructions or that they were even aware that he had secured them. The parties to the transfer, White and the accountant, had agreed that White —not the taxpayers — could keep the papers indefinitely, but that they would be returned to the accountant upon completion of White’s work. Thus, the taxpayers retained no right to immediate possession; indeed they “retained” nothing. Their actions could not be said to have evinced any legitimate expectation of privacy. Under those circumstances, to have permitted the attorney to assert the taxpayers’ privilege would have been inconsistent with the nature of the right against self-incrimination and with the interests it was designed to protect.

It is with this lengthy prelude that we finally meet appellants’ and the government’s contentions head-on. Our reading of Couch convinces us that there is no basis for adopting the government’s position that ownership is a prerequisite to the assertion of the privilege. Indeed, the Court eschewed any reliance on ownership as an important factor. “To tie the privilege . to a concept of ownership would be to draw a meaningless line.” Couch v. United States, supra, 409 U.S. at 331, 93 S.Ct. at 617. To agree with the government here would be not only to read Couch perversely, but also to ignore the historical elaboration of the Fifth Amendment privilege. We choose instead to adhere to the test enunciated in Couch, a test which depends upon the policies and purposes of the privilege.

The government’s most appealing argument is that the taxpayer had no “rightful possession” here because this enterprise by the taxpayer, .his accountant, and his attorney was “a frantic last minute effort to put the requested records beyond the reach of a legitimate tax investigation” by “winning a footrace with agents of the government.” In spite of the argument’s great superficial persuasiveness, we reject it.

In Couch, the Supreme Court refused to consider the fact that the documents sought were presently in the possession of the taxpayer’s attorney because the transfer from accountant to attorney had occurred after the summons had been served on the accountant.

[Constitutional rights obviously cannot be enlarged by this kind of action. The rights and obligations of the -parties became fixed when the summons was served, and the transfer did not alter them

Couch v. United States, supra, 409 U.S. at 329, 93 S.Ct. at 616 n. 9, 34 L.Ed.2d at 554. But in the present case, the transfer of records occurred before the summons had been served. Indeed, the summons was issued and served the day following the taxpayer’s possession.

The government would have this court hold that the rights and obligations of the parties become fixed when the Special Agent makes his first appearance and confronts the taxpayer with the unwelcome news that he is under investigation for criminal violations of the tax laws. But there is no support for that position in Couch-, on the contrary, the Court has already made a choice which indicates disapproval of the government’s position. See United States v. White, supra, 477 F.2d at 762 n. 12.

We fully agree with the government that a post-summons transfer of the documents is to be ignored in the determination of the applicability of the Fifth Amendment privilege. Couch demands no less. But the corollary proposition is that while the appellants and the taxpayer have in fact attempted to put the requested records beyond the reach of a tax investigation, that action is wholly proper as long as the transfer occurs before the summons is served. In our judgment, it would be highly improper and a serious derogation of the Fifth Amendment right if we were to test appellants’ contention by asking whether they have attempted to keep evidence out of the hands of the investigators. For every successful claim of privilege frustrates to some extent the government’s ability to gather evidence. In this context, the Fifth Amendment privilege demands that the government “shoulder the entire load” in its contest with the individual. Murphy v. Waterfront Comm’n of New York Harbor, supra; 8 Wigmore, Evidence (McNaughton rev., 1961) p. 317.

But more importantly, and regardless of the timing of the transfers, appellants could not put the records beyond the reach of the IRS unless the material were properly the subject of a Fifth Amendment claim. In this regard, some categorical statements can be made. Following Couch, it is clear that the taxpayer could assert no Fifth Amendment privilege in the records while they were held by his accountant. It is likewise clear from Couch that at the time the taxpayer obtained actual possession of the records, the day before the summons was served, he was in the position to assert his Fifth Amendment privilege, if the summons had then been served. Had he at that point followed Judge Gewin’s analysis and placed the materials in a safe under his control, he could have successfully invoked the privilege by relying upon his constructive possession. See Schwimmer v. United States, 8th Cir. 1956, 232 F.2d 855; United States v. Guterma, 2nd Cir. 1959, 272 F.2d 344. Instead the taxpayer transfers the materials to his attorney for safekeeping and for the preparation of his defense.

We are thus faced with this dilemma: If we hold that no Fifth Amendment privilege is now available, then the taxpayer’s rights have been effectively decreased by his transfer. In a sense, the taxpayer is better off without an attorney to study the records than with him. Indeed, we make it almost appear as though the taxpayer must now closet himself with his myriad tax data drawn up around him and permit the attorney to study or possess the records only when the taxpayer is in a position to grab them physically, lest some furtive and surreptitious agent may swoop down with a summons while the attorney is fingering the treasure. On the other hand, if we hold that the Fifth Amendment privilege is available here, then we make it appear as if the applicability of the privilege is more a matter of the form of the transfer than the substance behind the privilege since the most important difference between this case and White is taxpayer’s fleeting actual possession between that of the accountant and that of the attorney.

But even dilemmas sometimes admit of sensible resolution, and in any case, decide we must. To make the correct choice, we return to the principles announced in Couch and White. In its most distilled form, the question is whether the taxpayer has a sufficient legitimate expectation of privacy in the summoned records to warrant the label of constructive possession. Couch v. United States, supra, 409 U.S. at 334-338, 93 S.Ct. at 619-620.

Couch held that a taxpayer could claim no legitimate expectation of privacy in records which he left with an accountant for the purpose of preparing the taxpayer’s personal income tax returns. When the taxpayer in the present case received the records from his accountant, the taxpayer’s physical possession became the “private enclave” which the Fifth Amendment privilege was designed to protect. It makes no difference that the taxpayer could claim no legitimate expectation of privacy when the records were held by the accountant, for it has not been suggested that a taxpayer in possession of records can be compelled to produce them because they have previously been used in preparing his own income tax return. For Fifth Amendment purposes, that the government can summon the documents from the accountant does not mean that those same documents can be summoned from the taxpayer. As the Ninth Circuit put it, “that the govern-mean that those same documents can be without compelling [the taxpayer] to incriminate himself is hardly a justification for compelling [the taxpayer] to incriminate himself.” United States v. Cohen, 9th Cir. 1967, 388 F.2d 464, 469; see also Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319.

When the taxpayer subsequently transferred his records to his attorney pursuant to the attorney-cleint relationship, in our judgment he retained that legitimiate expectation of privacy or private enclave with respect to the records. We reject the notion, as we did in White, that a Fifth Amendment privilege in the taxpayer can somehow be created when evidence finds its way into his attorney’s hands. See also Falsone v. United States, 5th Cir. 1953, 205 F.2d 734, 738. But we also reject the idea that a taxpayer’s right to be free from self-incrimination can be decreased or defeated by the taxpayer’s transfer of records to his attorney pursuant to the attorney-client relationship.

In White, in order to permit assertion of the privilege, we would have had to recognize that the transfer from the accountant to the attorney created a right in the taxpayer where none existed before. And in Couch, the taxpayer gave up the Amendment’s protection when she gave her records to her accountant for the purpose of preparing tax returns and never regained the protection before the materials were summoned. Quite aside from the fact that the attorney in Couch came into possession of the records after 'the summons had been served and thus after all rights and obligations had vested; to have allowed assertion of the privilege there would have been to create rather than retain a privilege in the taxpayer. Neither the Supreme Court nor this court could approve such a result.

But where the taxpayer transfers potentially incriminating materials which he physically possesses to his attorney pursuant to an attorney-client relationship, the taxpayer’s legitimate expectation of privacy with regard to the use of the materials should be quite different from his legitimate expectations as to its use in the hands of an independent accountant preparing tax returns. While the accountant has a legal duty to disclose, the attorney has a strict, ethical obligation to prevent disclosure. This ethical obligation is broader than and independent of the attorney-client privilege, which is admittedly not available here. The Disciplinary Rules of the Code of Professional Responsibility prepared by the American Bar Association absolutely forbid an attorney from knowingly revealing either a “confidence” or a “secret” of his client. A “confidence” refers to information protected by the attorney-client privilege while a “secret” refers to any other information' “gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” ABA Code of Professional Responsibility, DR 4-101 (A), (B)(1). Of course, the taxpayer cannot assert the attorney-client relationship, as distinguished from the attorney-client privilege, as a basis for denying enforcement of the summons. But even where there is no attorney-client privilege in certain material, as here, the taxpayer client may still have a legitimate expectation of privacy with regard to that material because of the attorney-client relationship, an expectation of privacy which helps to give substance to a Fifth Amendment privilege contention.

Stripped of any constitutional perspective, the factual differences between this case and White may seem insignificant. But we find constitutional significance both in the actual possession by the taxpayer before the summons was served and in the transfer from the taxpayer to the attorney pursuant to the attorney-client relationship. We conclude that the taxpayer-here retained a legitimate expectation of privacy with regard to the materials he placed in his attorney’s custody, that he retained constructive possession of the evidence, and thus that he retained Fifth Amendment protection. As a matter of constitutional law, we can see no other way to resolve the apparent dilemma in a manner which is consistent with the nature of the right against self-incrimination and in furtherance of the interests it was designed to protect.

We are convinced that our result is consistent with the policies and purposes of the Self-Incrimination Privilege in spite of the government’s contention that the taxpayer’s evanescent possession is wholly inadequate to raise the privilege. If the taxpayer had possessed the papers for only one more day, when the summons was served, he could have successfully asserted the privilege. The government has not suggested a method by which we could distinguish the taxpayer’s possession here from something more permanent. Nor has the government offered any reason why we should compel the taxpayer to hold onto the documents for a particular period of time. In our judgment, the taxpayer’s short-lived possession was sufficient to permit a claim based on the Self-Incrimination Privilege, and the subsequent transfer to his attorney evidenced a sufficient legitimate expectation of privacy to permit the taxpayer to retain the Amendment’s protection through constructive possession.

This does not end the matter, however, for we must now answer the question which we left unanswered in White: whether the taxpayer’s attorney has standing to assert the taxpayer’s claim of privilege. If he does not, then the district court’s order is to be affirmed, because the taxpayer has not intervened in his own behalf. Although there is no unanimity among the courts in their answers to the question posed, in our judgment the weight of authority and reason supports the position that an attorney may claim the Self-Incrimination Privilege on behalf of his client if his client could have successfully asserted such a privilege. United States v. Judson, 9th Cir. 1963, 322 F.2d 460, 463-465; Colton v. United States, 2nd Cir. 1962, 306 F.2d 633, 639, cert. denied, 1963, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499; Brody v. United States, 1st Cir. 1957, 243 F.2d 378, 387 n. 5, cert. denied, 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438; 8 Wigmore, Evidence § 2307 (McNaughton rev., 1961); Grant v. United States, 1913, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423; Application of House, N.D.Cal.1956, 144 F.Supp. 95; but cf., Bouschor v. United States, 8th Cir. 1963, 316 F.2d 451, 458-459. As the Ninth Circuit explained in United States v. Judson, supra, the realities of tax litigation require that the attorney be allowed to press his client’s claim where the client could successfully do so:

. No other “third party,” nor “agent,” nor “representative” stands in such a unique relationship between the accused and the judicial process as does his attorney. He is the only person besides the client himself who is permitted to prepare and conduct the defense of the matter under investigation. The attorney and his client are so identical with respect to the function of the evidence and to the proceedings which call for its production that any. distinction is mere sophistry

United States v. Judson, supra, 322 F.2d at 467. While there may be good reason to permit the taxpayer to intervene and to encourage the taxpayer to do so, we see no reason to require that procedure.

Thus the IRS is not-entitled to enforcement of the summons directed to attorney Kasmir for the production of documents. However, in light of Couch the IRS is entitled to enforcement of the summons served upon accountant Candy for his testimony concerning the sought-after documents. Whether, as a practical matter, enforcement of this summons is of any benefit to the government in its investigation is purely a matter for the IRS to consider. As a constitutional matter, the accountant’s testimony cannot offend the taxpayer’s Self-Incrimination Privilege. Couch v. United States, supra.

The result which we reach here does not make us any less mindful of the overriding necessity of collecting the. tax revenues. At the same time, we must also remember that the investigative power of the Internal Revenue Service is fundamentally inquisitorial, that the government’s power lies not in the fashion of the Courts of the Star Chamber and the High Commission, but in its ability to invade, in a civilized manner, the personality and privacy of every citizen in the United States.

When the Constitution was first ratified, the citizens of this country were not yet dependent upon attorneys to decipher complex tax laws. And at that time, the specter of the more brutal forms of compulsory self-incrimination was all that required concern. Today, however, the government’s power can be used to stimulate a taxpayer’s dependence upon his attorney and the predictable transfer of his records. Once so transferred, the government argues, the materials are subject to compelled disclosure. In our judgment, the inherent power thus to compel indirectly an individual’s self-incrimination is curbed by the Fifth Amendment as effectively as the power to compel the same result directly. United States v. Judson, supra, 322 F.2d at 468. The policies and purposes of the Self-Incrimination Privilege do not change merely because new techniques or devices for compulsion have replaced the old. Put another way, we must never forget that it is a constitution we are expounding. M’Culloch v. Maryland, 1819, 4 Wheat. 316, 407, 4 L.Ed. 579, 601.

Affirmed in part, reversed in part.

BELL, Circuit Judge

(dissenting):

I respectfully dissent.

The operative facts here are:

(1) The records sought to be produced are owned by the accountant and not taxpayer (the records had to do with taxpayer’s tax returns). The government did not seek the production of records owned by taxpayer.
(2) When the taxpayer telephoned the accountant to say that the agents were in his office, the accountant advised taxpayer to say nothing and not to produce his records.
(3) The accountant then selected a lawyer for taxpayer, took the records in question (the accountant’s records), to the taxpayer’s office early the next morning, where he handed them to taxpayer who, in turn, handed them to the lawyer.

I dissent for two reasons. First, taxpayer can take no comfort in the activity of the accountant and lawyer. Without venturing into a dissertation on situation ethics, I am satisfied to say that lawyers and accountants have a higher call to duty than that of acting to prevent the production of evidence through the use of a privilege under the circumstances here. The privilege is designed to protect a client’s confidence imparted during the attorney-client relationship.

The privilege does not exist, however, for the purpose of being used initially and directly as a stratagem or device to place pre-existing documentary evidence beyond the reach of the law. While conceding this, the majority in the same breath uses the attorney-client relationship in a futile effort to establish an expectation of privacy to satisfy one of the requirements of Couch v. United States, 1973, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548.

In Couch, a taxpayer was not allowed the Fifth Amendment privilege against self-incrimination even as to her own records in the hands of her accountant. The court stated that the two essential bases for the privilege were absent: no legitimate expectation of personal privacy in the records, and no governmental compulsion against the person of the taxpayer.

Where is taxpayer’s expectation of personal privacy in the accountant’s records here ? What compulsion is there against the person of the taxpayer in a summons against his lawyer to produce an accountant’s records which were for a fleeting moment placed in the hands of the taxpayer by the accountant. An expectation of personal privacy of the Couch type cannot be generated ipso facto by creating a lawyer-client relationship. I would therefore pretermit further consideration of the element of compulsion.

Moreover, it would appear that the majority opinion may conflict with our decision in United States v. White, 5 Cir., 1973, 477 F.2d 757, aff’d en banc, 487 F.2d 1335. The only possible difference between this case and White is that the accountant’s records in White, reflecting, as here, the affairs of the taxpayer, were transferred directly from the accountant to the lawyer. We held that there was no Fifth Amendment privilege to be exercised for the taxpayer by his lawyer in the accountant’s records.

I did not join in White on the narrow basis of exalting form over substance to the extent of reserving a different holding for a set of facts where the same records had passed through the hands of the taxpayer.

For the reasons stated I would affirm the district court to the end of enforcing the summons.

      . The following documents were summoned:
      1. Accountant’s work papers pertaining to Dr. Mason’s books and records of 1969, 1970, and 1971.
      2. Retained copies of Dr. Mason’s income tax returns for 1969, 1970, and 1971.
      3. Retained copies of reports and other correspondence between [the accounting firm] and Dr. Mason during 1969, 1970, and 1971.
      The government did not seek the documents which Dr. Mason permitted the Agents to examine during their initial visit and admitted that those documents could be withheld by the doctor if he invoked a Fifth Amendment self-incrimination claim.

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

      . Thus ownership might be a relevant factor to consider in determining a taxpayer’s legitimate expectation of privacy with respect to summoned materials not in his possession, although that factor would not be dispositive.

      . The only reported opinion which appears to adopt the government’s position is United States v. Widelski, 6th Cir. 1971, 452 F.2d 1, cert. denied, 1972, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117. But that opinion is nowhere cited in Couch. Instead the Court cited United States v. Zakutansky, 7th Cir. 1968, 401 F.2d 68, 72, cert. denied, 1969, 393 U.S. 1021, 89 S.Ct. 628, 21 L.Ed.2d 565, and United States v. Lyons, 1st Cir. 1971, 442 F.2d 1144, both of -which held that constitutional rights may not be enlarged by a transfer of records which occurs after a summons is served.

      . The process for determining the incriminating character of evidence is plainly set forth in Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. But the incriminating character of the materials sought here has not been put in issue.

      . 8 Wigmore, Evidence (McNaughton rev., 1961) § 2307:
      “Is the attorney compellable to produce in court, by subpoena or bill of discovery, the documents placed in his possession by the client?
      * s¡s í¡; i'fi s¡s
      “The answer here depends upon the other privileges of the client irrespective of [the attorney-client privilege]. The attorney is but the agent of the client to hold the deed. If the client is compellable to give up possession, then the attorney is; if the client is not, then the attorney is not. It is merely a question of possession, and the attorney in this respect is like any other agent. There is, to be sure, the added consideration of policy — namely, that if the attorney were not compellable when the client was, then the client’s obligation to produce could always be evaded In very simple fashion by placing the deed with the attorney.
      “It follows, then, that when the client himself would be privileged from protection of the document ... as exempt from self-incrimination, the attorney having possession of the document is not bound to produce. Such has invariably been the ruling. On the other hand, if the client would be compellable to produce . . . then the attorney is equally compellable, if the document is in his custody, to produce under the appropriate procedure.” (Emphasis in original.)

        See also United States v. Judson, 9th Cir. 1963, 322 F.2d 460, 466: “The government would have us hold that the taxpayer walked into his attorney’s office unquestionably shielded with the Amendment’s protection, and walked out with something less.”

      . The ABA Code of Professional Responsibility, Ethical Consideration 4-4 provides in part:
      “The attorney-client p2-ivilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of in-for-mation or the fact that others share the knowledge.”

      . Whose only limitation was that whatever torture might be applied, it could not be such as to draw blood from the victim. Hence the popularity of the rack. See 40 Brooklyn L.Rev. 211, 213 n. 10 (1973) ; see also L. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968).

      . Because of our disposition of this appeal, we need not consider appellants’ final contention.


source: Caselaw Access Project

author: CLARK, Circuit Judge:

license: Public Domain

text:
    William LEE, Petitioner-Appellee, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent-Appellant.
    No. 73-3601.
    United States Court of Appeals, Fifth Circuit.
    Aug. 23, 1974.
    Rehearing Denied Sept. 23, 1974.

      Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.
    F. Robert Raley, Macon, Ga. (Court-appointed), for petitioner-appellee.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

William Lee received a fifteen year prison sentence after his attorney, in Lee’s presence and with his tacit approval, entered pleas of guilty to indictments charging tw.o counts of rape. Three years later Lee initiated habeas corpus proceedings in the Georgia state courts claiming that the pleas had been entered by his privately retained attorney without authority and in contravention of his request for a jury trial. The Superior Court of Tatnall County denied his petition after a full evidentiary hearing, finding that the decision to plead guilty had been made by Lee only after his attorney had investigated the factual bases of the charges and had fully apprised Lee of his rights and the consequences of his plea. The Georgia Supreme Court affirmed. Lee v. Smith, 229 Ga. 819, 194 S.E.2d 475 (1972).

A petition for relief under section 2254 was then filed with the federal district court. Respondent moved for dismissal or summary judgment on the basis of the facts as developed in the state habeas court. A ruling on the motion was delayed pending an evidentiary hearing. After the hearing, the district court denied the motion and concluded that because Lee’s decision to plead guilty had been based on his attorney’s advice that a bargained guilty plea was the only reasonable course open to him when in fact substantial legal and factual defenses had not been investigated, Lee’s plea decision had not been knowingly made. The conviction was ordered set aside and Lee was remanded to a Georgia court for retrial within ninety days. Lee v. Caldwell, Civil No. 2785 (M.D.Ga., Aug. 24, 1973). That order has been stayed pending disposition of this appeal.

The grant of habeas relief is challenged here on two grounds. Respondent first asserts that it was an abuse of discretion for the district court to conduct an evidentiary hearing and make independent findings of fact when the case was ripe for summary disposition on the basis of the state court record. Respondent also contends that the court erred in its ultimate conclusion on the merits. After examination of the state and federal court hearings and opinions, we conclude (1) that the dis-1 trict court did not abuse its discretion in holding an evidentiary hearing, but (2) that one phase of the question whether the guilty pleas were knowingly made has not been adequately developed. We therefore remand for further proceedings.

The facts of the case were these: On October 10, 1967, Lee, an attendant at the State Hospital in Milledgeville, Georgia, was charged with the rape of two young mental patients. James M. Watts, an attorney in regular practice in Milledgeville who was then exercising the powers of a justice of the peace as judge of the Small Claims Court of Baldwin County; issued a warrant commanding Lee’s arrest. Lee was apprehended in Ohio, waived extradition, and was returned to Georgia for trial. Shortly thereafter Lee’s family retained Watts to represent Lee on the two rape charges as well as one charge of forgery and one of larceny. One of the two rape indictments returned by the Grand Jury of Baldwin County charged Lee with carnal knowledge of a named female, forcibly and against her will. The other indictment charged him with carnal knowledge of a named female under fourteen years of age without having previously become lawfully married to her. The state evidentiary hearing disclosed that a second male, also a patient at the hospital, was present at and participated in the rapes.

Lee’s petition before the Tatnall County court initially alleged only that he had entered his plea of guilty after Watts’ assurance that he would receive “a much lesser sentence than the sentence he received.” Lee later amended his petition to allege that he had never authorized Watts to enter a plea of guilty for him and that Watts had not rendered effective assistance in representing him. He also alleged that he was never given a preliminary or bail hearing and was never informed of the indictments against him. The following excerpt from the Tatnall County court findings summarizes that court’s factual conclusions:

The record, shows that Mr. James M. Watts, Jr., attorney at law, Milledgeville, Georgia was privately employed by the family of petitioner; that he had practiced law in Milledgeville, Georgia for thirty-two (32) years; approximately % of his time being devoted to criminal work; that he represented William Lee on two charges of rape and other charges in January, 1968, that he had talked with the father first and then with William, the defendant in jail; with his wife, with his mother-in-law, and also with his grandmother, and that defendant indicated to him that he wanted Mr. Watts to represent him and never indicated any dissatisfaction with his representation; that he was retained by the family in October, 1967, which was some several months prior to the sentencing of the petitioner; that he talked with defendant on several occasions in the jail; that he talked to both of the girls defendant was accused of raping; that he talked to the assistant superintendent of the hospital and checked the records concerning their commitment, the girls being patients at the Central State Hospital at the time, and the defendant being an attendant at the hospital. Mr. Watts stated that they talked about having a lie detector test but decided against it. The attorney advised him of the maximum punishment for rape which was death or life imprisonment. Mr. Watts told him that he had a right to a jury trial. Mr. Watts discussed the case also with the District Attorney, and it was his opinion that the state had a strong case or cases, and that he so advised defendant, after which defendant decided he would plead guilty. This fact was communicated to defendant’s wife, his mother-in-law, his father, his grandmother, and a good friend of his father. After many discussions with the sheriff and the district attorney, the district attorney agreed to recommend the sentence of 15 years for the two offenses. Mr. Watts testified that the recommendation was never anything less than 15 years and that he advised petitioner that the Judge would not be bound by the recommendation but that he usually went along with the recommendation of the district attorney. Mr. Watts testified that he told the defendant on many occasions that the decision was strictly his as to whether he would plead guilty or not guilty, and that he was not coerced in any way to plead guilty. Mr. Watts testified that when petitioner was sentenced, he did not indicate any dissatisfaction with the sentence he received.

The court held the non-jurisdictional defects waived by Lee’s guilty plea, see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and focused on the adequacy of the representation afforded by Watts. Applying the Georgia standard of counsel “so ignorant, negligent, or unfaithful that the accused was virtually unrepresented or did not in any real or substantial sense have aid of counsel,” Gardner v. State, 117 Ga.App. 262, 160 S.E.2d 271 (1968), the court found that Lee had failed to carry his burden of proof. Describing Lee’s main contention as being that “he and his attorney had talked about a twelve year sentence when in fact he received fifteen years,” the court viewed the relative leniency of the sentence received on charges for which the death penalty or life imprisonment could have been imposed as indicative of effective counsel.

I.

We first confront respondent’s averment of error in the district court’s refusal to grant the motion for summary judgment and the holding of an evidentiary hearing. This motion was filed in the district court simultaneously with the return and answer to Lee’s habeas petition. Also submitted in support of the motion was the transcript and record of the state habeas proceeding. Respondent contends that the district judge abused his discretion in failing to grant this motion in light of the presumption of correctness afforded the state court determinations by section 2254(d) and Lee’s failure to contravene any of those determinations so as to create a “genuine issue for trial” under Rule 56(e), Federal Rules of Civil Procedure.

That the district court has the power to hold an evidentiary hearing cannot be doubted. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In Townsend the Supreme Court set out criteria for determining whether to grant a federal hearing. Among these were findings that the record as a whole does not fairly support the state factual determinations and that the material facts were not adequately developed at the state court hearing. These two standards are identical to sections 2254(d)(3) and (d)(8), upon which the district court relied in deciding that the record before it was insufficient to afford a reliable basis for determining the difficult question of voluntariness presented. • For instance, the court noted that Watts had not testified in person at the state hearing. His testimony had been preserved in a deposition taken in a proceeding not attended by Lee’s counsel. The state trier of fact thus had no opportunity to evaluate Watts’ testimony on the basis of a direct confrontation. Furthermore, the copies of the indictment submitted by respondent appeared to indicate that pleas of not guilty rather than guilty had been entered. In these circumstances the holding of a federal evidentiary hearing cannot be said to have been an abuse of discretion.

In addition, the written opinion of the state court suggests that its favorable evaluation of Watts’ assistance rested on application of an unacceptable standard of effectiveness. The Georgia court found that Lee had failed to show that Watts was “so ignorant, negligent, or unfaithful that the accused was virtually unrepresented or did not in any real or substantial sense have aid of counsel.” The state court found Lee’s proof equally lacking under the “farce or mockery of justice” standard referred to in several Fifth Circuit opinions. Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), concluded that the proper constitutional standard had been announced in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1960), as “counsel reasonably likely to render and rendering reasonably effective assistance.” Counsel may be ineffective by this measure without satisfying the “mockery of justice” criterion. Herring v. Estelle, supra, 491 F.2d at 128; United States v. Edwards, 488 F.2d 1154, 1164-1165 (5th Cir. 1974). Since the issues of effective assistance and voluntariness present mixed questions of law and fact, see Davis v. Heyd, 479 F.2d 446, 451 (5th Cir. 1973), and since such questions do not fall within section 2254(d)’s presumption of correctness, see Townsend v. Sain, supra, 372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6, the district court was under no constraint to defer to the state conclusions.

II.

The state court found, and the hearing below confirmed, that Lee did in fact agree to the entering of pleas of guilty on his behalf. Having done so, Lee is limited in this proceeding to a challenge to the voluntary and knowing nature of his pleas. “ [Ineffective assistance of counsel ... is immaterial in an attempt to impeach a plea of guilty, except perhaps to the extent that it bears on the issues of voluntariness and understanding.” Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709-710, cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). Our review, then, must focus on whether the shortcomings in Watts’ representation found by the court below so distorted the alternatives available to Lee that his pleas lacked the requisite cognition.

“If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases.’ ” Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), quoting from McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). That range of competence requires “not errorless counsel, and not counsel judge ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” MacKenna v. Ellis, supra, 280 F.2d at 599. Implicit in the decision of the court below is a finding that Watts’ assistance did not fall within this range. The correct legal standard having been applied, our review is limited to a determination whether that finding is clearly erroneous.

Although the amount of investigatory effort required to render an attorney’s advice on how to plead competent will necessarily vary with the difficulty of the factual and legal bases of the charges, an examination of recent decisions indicates that less than the exhaustive and plenary investigation that would accompany a trial will satisfy the constitutional mandate. “[I]t appears that the only required' duty of counsel under the most liberal construction when a plea of guilty is entered is that counsel . . should ascertain if the plea is entered voluntarily, and knowingly.” Lamb v. Beto, 423 F.2d 85, 87 (5th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); see Herring v. Estelle, supra, 491 F.2d at 128; Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971). The words “voluntarily” and “knowingly” or “understandingly” are, however, terms of art, the meanings of which are somewhat circumscribed. In Edwards v. United States, supra, Chief Justice (then Judge) Burger made the following observations in a case raising allegations similar to those sub judice:

“There seems to be little doubt that the plea of guilty was in the present case voluntary. There is no allegation that appellant was induced to plead guilty by any conduct of the police, prosecutor or court, but only that his own counsel’s “bad” advice induced him to plead guilty. This, however, does not itself make out involuntariness. It seems likewise clear that the plea was understanding^ made. It may be argued that a plea of guilty is not understandingly made when defendant is unaware of certain technical defenses which might very well make the prosecutor’s job more difficult or even impossible were he put to his proof. However, we think “understandingly” refers merely to the meaning of the charge, and what acts amount to being guilty of the charge, and the consequences of pleading guilty thereto, rather than to dilatory or evidentiary defenses.”

Edwards v. United States, supra, 256 F.2d at 710 (footnotes omitted). Counsel is not relieved of responsibility to investigate potential defenses, however. “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. 1970). “It is [the lawyer’s] job to provide the accused an ‘understanding of the law in relation to the facts.’ . . • . And a lawyer who is not familiar with the facts and law relevant to his client’s case cannot meet that required mimimal level [of assistance].” Herring v. Estelle, supra, 491 F.2d at 128. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948).

With the focus of our inquiry thus sharpened, we turn to the bases for the findings below of ineffective assistance, after first noting the following. The facts adduced at the federal evidentiary hearing did not contradict those found by the state court, quoted above. The factors considered determinative of incompetent advice by the federal habeas court were revealed only in the federal hearing and did not figure in the state decision. We therefore accept the state findings of fact as correct.

The federal habeas court’s conclusion that “substantial legal and factual defenses were never investigated” was based on the following findings: (1) although Lee eventually admitted to Watts that he had had intercourse with the girls, he never stated that he had forced himself on the girls without either’s consent; (2) Watts never interviewed the other man allegedly present when the sex acts occurred,, and no issue was made of the fact that charges were never brought against him; (3) Watts did not research Georgia law to determine what evidence was sufficient to corroborate a purported rape victim’s testimony; (4) Watts failed to consider a demurrer to the indictment charging Lee with the rape of the thirteen-year-old girl on the grounds that it failed to charge him with “statutory” rape; (5) Watts had a possible conflict of interest because he was the judge who issued the warrant for Lee’s arrest, and never told Lee of that fact; (6) Watts did not consider the possibility of attacking the racial composition of the grand and petit juries, even though he considered the composition of juries in Baldwin County to be very detrimental to Lee’s case.

' Evaluating the first five of these acts and omissions in the context of the total representation provided by Watts, we are unable to agree that Lee has shown Watts’ efforts to have been so deficient as to deprive his pleas of their voluntary character. Lee’s failure to frame his confession to Watts in statutory terms matters less than the fact that Watts’ investigation uncovered ample evidence to dent the viability of a defense based on consent. Both victims, when interviewed by Watts, stated that they had had intercourse with Lee. Watts said the fourteen-year-old indicated that “she did not consent to the relations with William, that they were [had] forcibly and against her will, and that she tried to get away from him.” Watts also testified that he interviewed a girl at the institution who stated that she heard a scream at about the time the rapes supposedly occurred. Consent would not, under Georgia law, be a defense against the charge of intercourse with the younger girl. The failure to interview the alleged co-participant in the rapes may appear to be the more egregious omission, but in light of an otherwise adequate investigation and the questionable impact of testimony from such a patient-witness, we cannot find support for a finding that this deficit rendered Watts’ advice infirm.

Watts testified that he did not research Georgia law to determine whether one victim of a joint rape could corroborate the testimony of another. However, his investigation did disclose corroborative evidence in the form of medical reports and the testimony of a third girl who saw the two victims leave the hospital with Lee and another man and who heard a scream shortly thereafter from the place where the rapes were alleged to have taken place. This evidence appears to satisfy the Georgia requirement of “slight circumstances "of corroboration”, see Strickland v. State, 207 Ga. 284, 61 S.E.2d 118 (1950). Watts did determine that both girls would have been permitted to appear as witnesses notwithstanding their status as mental patients. The fact that he did not also research the law as to whether or not the testimony of joint rape victims would be given corroborative effect does not demonstrate that Lee was deprived of any substantial defense by Watts’ alleged legal research lapse.

The failure to consider a demurrer to the indictment and Watts’ possible conflict of interest suffer from a similar deficiency. The indictments in question were drawn prior to the revision of the Criminal Code of Georgia in 1968. Under section 26-1301 of the 1933 code in effect at the time Lee was charged, statutory rape was not a defined term. Section 26-1303 declared it unlawful to have sexual intercourse with a female under the age of fourteen without previously having become lawfully married to her. The indictments were properly cast in the statutory terms then applicable. Lee’s challenge apparently is based upon the present codification, which does define the offense as statutory rape. Ga.Code Ann. § 26-2018 (1972). Having failed to show the indictment demurrable under the appropriate law, Lee cannot complain that his attorney’s failure to consider a demurrer was erroneous. The objection on grounds of the “possible conflict of interest” fares no better. The mere possibility of a conflict, the precise nature of which has been neither shown nor suggested, cannot support a grant of habeas relief. If the conflict be said to give rise to an inability to recognize or reluctance to attack deficiencies in the warrant commanding Lee’s arrest, Lee must have demonstrated that some deficiency did in fact exist to sustain a claim that he was deprived of effective assistance thereby. He did not do so.

The sixth ground — failure to consider a challenge to the grand and petit juries —presents a more serious question. The likelihood of an adverse verdict and a severe sentence undeniably figured in Lee’s decision. Watts advised Lee that the best he could expect from a Baldwin County jury would be a life sentence. The district court found that this prediction was based, in part, at least, on the racial composition of the juries. The resolution of this issue falls within the instruction of the Supreme Court decision in Tollett v. Henderson, supra. The Court there confronted a habeas petition brought twenty-five years after the petitioner had been sentenced on his plea of guilty. The petitioner alleged as the sole ground for relief that blacks had been systematically excluded from the grand jury that indicted him. The Court reversed the grant of habeas relief, holding that after a criminal defendant pleads guilty the federal inquiry could extend only to the “nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.” Citing the McMann test for evaluating advice, the Court noted that in particular fact situations, an attorney’s failure properly to evaluate facts giving rise to a constitutional question or his failure to inform himself of facts that would have shown the existence of a constitutional claim might render the plea infirm. The Court set out a two-part test to be satisfied before federal habeas relief could be awarded: “[R]espondent must not only establish the unconstitutional discrimination in selection of grand jurors. He must also establish that his attorney’s advice to plead guilty without having made inquiry into the composition of the grand jury rendered that advice outside the ‘range of competence demanded of attorneys in criminal cases.’ ” Tollett v. Henderson, supra, 93 S.Ct. at 1608-1609.

Neither the record before this court nor the evidence presented to the court below is sufficient to make any judgment on the merits of Lee’s allegations under either part of the Tollett test. The issue of jury discrimination appears to have been raised sua sponte by the court below without benefit of preparation or argument by eithér party. The finding of the court that a possible challenge existed was based on the inability of Watts and the state court clerk to recall any blacks on the grand jury panel. While the judge below did observe during the course of the hearing that “the average white lawyer in the state of Georgia in 1968 never challenged the composition of the jury”, we refuse to treat that observation as a factual conclusion deciding that the failure to consider a challenge here rendered Watts’ advice inadequate.

The facts disclosed in the present record, or more aptly, the lack of them to support the essential findings, demonstrate that the ultimate conclusion of plea invalidity sails perilously close to the clearly erroneous shoals. However, a procedural sort of a disposition on failure of proof by the petitioner or improper fact finding by the judge could only result in a refiling and reexamination of the same facts at a later date when the court’s grasp of the cause has been dimmed by the passage of time. The interests of justice indicate that the case be remanded to the district court so that it may determine whether further inquiry into jury selection procedures should be required.

To facilitate the trial judge’s appraisal of need for that effort and ultimately the proper final disposition of this case, our holding is summarized. We recognize that receipt of a sentence of fifteen years on charges for which the death penalty could have been imposed is still no bargain if substantial factual and legal defenses lay undiscovered as a result of the defense attorney’s neglect. However, evaluation of an attorney’s efforts must never be made to turn solely on the ability of his newly dissatisfied client to show that the attorney might have done more than he did. A decision to plead guilty can be intelligently made on less information than would be required to prepare a trial defense. Even if the perfect vision of hindsight reveals a potentially meritorious defense in the backwaters left unexplored by an otherwise effective attorney, that alone would not dispel the voluntary nature of a decision to plead guilty. The effect of Watts’ alleged incompetence upon Lee’s decision must be appraised under the standards of Tollett v. Henderson and by such added light as is given by our decisions noted above. Evaluated by those standards, fact bases numbered (1) through (5) above are insufficient to support the court’s conclusion that Watts left substantial defenses uninvestigated. However, Watts’ failure to consider a challenge to the composition of the grand and petit juries has not yet received the scrutiny required by Tollett. Before holding further evidentiary proceedings to determine the existence of discrimination vel non in the selection of jurors in Baldwin County, the district court should assay whether the existence of such discrimination would affect Lee's guilty plea under the Tollett test. If Watts’ advice would remain within the “range of competence” notwithstanding this factor, then further proceedings would be unnecessary. This fact issue should first be resolved by the trial court. .

The judgment granting habeas corpus relief is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

Vacated and remanded.

      . The arraignment antedated Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held a recorded judicial determination of voluntariness constitutionally required. Boykin was refused retroactive effect in Dominguez v. Henderson, 447 F.2d 207 (5th Cir. 1971).

      . A plea by Lee to abate the cause pending action on his petition for certiorari in the Georgia Supreme Court was granted, but the record contains no answer or further plea. Both parties refer to a “response” by Lee to the effect that the indictments under which he had been sentenced revealed pleas of “not guilty” rather than “guilty” but it is not in the record. Respondent notes that this claim had not been made previously and that it contradicted Lee’s own assertion that pleas of guilty had been entered without his authorization.

      . Rule 56(e), Eed.R.Civ.P., provides in pertinent part that
      [w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

      . Examination of the original indictments at the federal hearing revealed pencil marks through the word “not” where “not guilty” appeared on the printed forms. The reproduction process used had not accurately demonstrated the marks on the copies first presented to the court.

      . Respondent relies on the Supreme Court’s interpretation of section 2254(d) in LaVallee v. Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). In LaVallee the Court held that the district court erred in failing to afford the findings of fact of the state habeas court a presumption of correctness when the sole reason for not doing so was the absence of any express statement of the state court’s evaluation of credibility. The Court noted that Townsend permitted an assumption that, where there is no “reason to suspect that an incorrect standard was in fact applied,” the state court found the facts against the petitioner. Thus, the absence of an articulated evaluation of credibility did not leave the merits of the factual dispute unresolved. In the case before us, the issues presented went not to the resolution of factual disputes but to the adequacy of their development. LaVallee is inapposite.

      . See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Winters v. Cook, 489 F.2d 174 (5th Cir. 1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Cooks v. United States, 461 F.2d 530 (5th Cir. 1972); Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971); O’Neal v. Smith, 431 F.2d 646 (5th Cir. 1970).

      . Although Watts testified that he had determined Georgia law would permit a mental patient to testify as a witness, the legal capacity of these thirteen or fourteen-year-old institutionalized children to consent to sexual intercourse with one of their custodians has not been raised.

      . An indictment that states the offense in the terms and language of the statute is deemed sufficiently technical and correct. Ga.Code Ann. § 27-701 (1972) ; see Coleman v. State, 215 Ga. 865, 114 S.E.2d 2 (1960); Pippen v. State, 205 Ga. 316, 53 S.E.2d 482 (1949).

      . In Winters v. Cook, 489 F.2d 174 (5th Cir. 1973), this court expressly rejected a suggestión that it take judicial notice of the failure of white attorneys in this circuit fully to protect the rights of their black clients to a constitutionally chosen jury. Id. at 178. Although Winters differs factually from the instant case in a significant respect (the attorney in Winters traded the waiver of a constitutional challenge to the method of grand jury selection for a recommendation of life imprisonment rather than the death penalty; whereas, this record does not establish that Watts ever considered use of the objection as a bargaining tool), Lee is under no less an obligation to prove rather than simply allege that Watts breached his obligations to him by his actions.

      . A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures, might be factually supported.
      Tollett v. Henderson, 411 U.S. 258, 268, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).