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

text:
    UNITED STATES of America v. James CLAYBORNE, Appellant. UNITED STATES of America v. William E. BROWN, Jr., Appellant.
    Nos. 72-2152, 72-2192.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 25, 1973.
    Decided Dec. 16, 1974.

      Sherwood B. Smith, Jr., Washington, D. C., with whom Paul M. Vincent, Washington, D. C. (both appointed by this court), was on the brief, for appellant in No. 72-2152.
    Fred Martin, law student, for appellant in No. 72-2192. John G. Murphy, Jr., Washington, D. C., with whom Sherman L. Cohn, Washington, D. C. (appointed by this court), and Patricia A. Seitz,* law student, were on the brief for appellant in No. 72 — 2192.
    Richard L. Beizer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Brian W. Shaughnessy, Asst. U. S. Attys., were on the brief for appellee. Stephen W. Grafman, Asst. U. S. Atty., also entered an appearance for appellee.

      Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.

       Entered an appearance as student counsel pursuant to Rule 20 of the General Rules of this court.

   MacKINNON, Circuit Judge:

James Clayborne and William E. Brown, Jr. were charged with (1) first degree felony murder, (2) first degree premeditated murder, (3) attempted robbery while armed and (4) attempted robbery. 5In addition, Clayborne was charged with carrying a pistol without a license. After a jury trial both appellants were convicted of second degree murder as a lesser included offense of first degree premeditated murder. Clayborne was also found guilty of carrying a pistol without a license. Clayborne was sentenced to concurrent terms of imprisonment of 15 to 45 years for the murder and one year for carrying the pistol. Following a Youth Corrections Act report on Brown, he was sentenced under section 5010(c) of that Act to a period of commitment not to exceed 10 years. The appeals of both men have been consolidated for all purposes. We affirm.

I

As we must, we set forth the facts most favorable to the jury’s verdict. Connie. Jackson, a 15-year-old girl at the time, was at her home when James Clayborne and William Brown arrived there a little after 1 P.M. on May 12, 1971 (Tr. 234). Clayborne was carrying two plastic bags, one containing a number of watches and the other containing two guns. He showed Connie the bags and attempted to sell some of the watches to her and to her friend Freddy Hooks (Tr. 171-172). He also showed Freddy two pistols from the other bag and attempted to sell them to him (Tr. 172 — 173). While appellants were at the Jackson home an insurance man (Leonard Spiro) came to see Connie’s mother, Mrs. Jackson (Tr. 175, 176— 178). When he found that Mrs. Jackson was not there the insurance man left. Clayborne and Brown then talked between themselves (Tr. 177) and “left right behind” the insurance man — “a few minutes” (Tr. 177) after his departure. Connie then went and looked out the window in the direction Clayborne and Brown had gone (Tr. 178). Connie testified that before they left Clayborne had “two bags in his hand” (Tr. 177). When Clayborne and Brown went outside the house “the insurance man [was] out there” (Tr. 177) and Connie stated that she saw Clayborne and the insurance man fighting (Tr. 178, 180). At that time Brown, not Clayborne, was carrying the two bags and he (Brown) was “down the street ... 25 feet” (Tr. 178, 179) from the point where Clay-borne and the insurance man were fighting. Clayborne had approached the insurance man and later chased him with a gun in his hand (Tr. 180-181). Thus, while Brown was standing by holding the bags, Clayborne chased the insurance man, shot him once in the eye and then ran away (Tr. 181 — 183). After the shooting Brown ran down the parking lot to his home (Tr. 184 — 185). The insurance man died as a result of the shot fired by Clayborne.

The foregoing facts present adequate evidence of Clayborne’s guilt and raise a question for the jury as to whether Brown, in his conversation with Clay-borne before the shooting, by his actions in taking the two bags of valuables, holding them while Clayborne accosted the insurance man and standing by during the fighting and shooting, and by his flight following the shooting, indicated his participation in the crime and aided and abetted Clayborne. in the commission of the offense. The entire evidence was such that it was permissible for the jury to conclude that Brown had aided and abetted the offense, that the two men were acting in concert and conniving concerning the offense immediately prior to their pursuit of the victim. This conclusion is supported by testimony that Brown and Clayborne had been seen standing together restlessly throughout the morning of the day in question (Tr. 232 — 234), and that Brown took the two bags, which Clayborne had previously carried, as soon as they left the Jackson house and held the bags while the assault on the insurance man by Clayborne was in progress. During this time Brown was also standing nearby, sufficiently close that he could have helped Clayborne in the fight had his assistance been necessary. Brown’s presence was also consistent with a conclusion that he was acting as a lookout, and his holding of the bags could be interpreted as aiding and abetting Clayborne in the shooting since Clayborne would have found it difficult, if not impossible, to chase, fight and shoot the insurance man if he had been required at the same time to carry two bags containing watches and guns.

Appellants request that we reverse these convictions principally on the claim of inadequate assistance of defense counsel because of the refusal of counsel for both appellants, on tactical and other grounds, to cross-examine Connie, the Government’s principal witness.

II

Since appellants’ major arguments in support of the claim that they were denied the effective assistance of counsel are so well set forth in Judge Bazelon’s dissenting opinion, drafted prior to this opinion, the following discussion will be addressed principally to the main points referred to in the dissent.

The dissent points first to the claimed defects in Connie’s testimony, to her youth, to some of the vacillation in her testimony, to some contradictions, to her unwillingness to testify and to her fear of reprisals for her testimony. This characterization of her attitude and performance is accurate, but these factors were apparent to the jury, they went to the issue of her credibility, and the jury was the proper tribunal to weigh and consider them.

Next the dissent points out that defense counsel had not interviewed Connie, that Connie originally refused to testify on grounds of alleged self-incrimination (Tr. 128), that a lawyer outside the case was appointed to counsel her on this point and that he informed the court that her refusal to testify was due to fear of reprisal. This intimidation came, not from the lawyers, but apparently from the defendants (Tr. 200) and members of the community in which all parties lived (Tr. 202). The trial judge observed intimidation of Connie in open court by appellants, especially Brown, and he pointed it out to defense counsel. Since it was apparent to the judge he also considered that it was apparent to the jury. When Connie persisted in her refusal to testify she was cautioned by the judge of the likelihood of being charged with perjury and was then adjudged to be in civil contempt and ordered to jail. That order was subsequently remanded and she was placed in protective custody for the night with her mother at a place remote from their usual habitation. However, she was again warned that she would be jailed the next day if she persisted in her refusal to testify.

The next day she agreed to testify. As the dissent points out, following an interview of the witness, defense counsel raised questions as to whether she felt compelled to testify in conformance with her original statement to the police or with her grand jury testimony, which varied in one or two particulars. The argument on this point see-sawed back and forth between respective counsel until the court finally and properly resolved the situation by advising Connie in open court: “The testimony you give in answer to the questions being put to you is to be the truth and only the truth. [G]ive the truth as best you can recollect it” (Tr. 168). She then went on to testify, but because they considered it to be in the best interests of their clients, all defense counsel refused to cross-examine her for the reasons subsequently set forth in a statement filed with the court after the trial. See Appendix A. We find these reasons adequate to support their decisions. In fact, reasons numbered 4 and 5 would each alone have been adequate to support such decisions. These explanations point to the fact that had Connie testified further, there was a strong likelihood she would have testified to additional facts that would have supplied factual elements from which the jury might have found both appellants guilty of first degree felony murder or premeditated murder as well as armed robbery and robbery.

Ill

The dissent argues that practically all the reasons given by counsel for not cross-examining Connie were attributable to a failure to interview the witness or do adequate research. This is pure speculation. Moreover, it is incorrect to imply that the defense did not have adequate knowledge of the facts. Connie was a reluctant witness and no law compelled her to submit to an interview. But she was the girl friend of Clayborne’s brother and he wrote to “her repeatedly with regard to her testimony which he knew of about the case” (Tr. 150). Moreover, Connie personally visited Clayborne in jail (Tr. 150, 381, 438A). Clayborne testified that Connie “[came] to visit [him] . . . over at the jail about nine or ten [times and that he] did . . . discuss the case with Connie Jackson over at the jail” (Tr. 381). He knew she was going to be a witness (Tr. 384). Under such circumstances to contend that Clayborne’s counsel were uninformed of Connie’s attitude and of what she knew of the murder and that they made their decision not to cross-examine in a vacuum of facts is incredible. In such circumstances no court should be so naive as to presume that defendants’ trial counsel were ignorant of Connie’s knowledge. Defendants’ counsel on appeal and the dissent fail to recognize that trial counsel had their own clients as sources of information; with the numerous contacts between Clayborne, his brother and Connie under the circumstances here existing it was not necessary for them to interview Connie personally to learn what she would testify to if she told the truth. We will not close our eyes to what any reasonable person would conclude under such circumstances. From the testimony read into the record, see page 478 infra, Brown's counsel knew of the possible contradiction in Connie’s testimony, and he may have believed that an interview would do nothing but confirm that his client had the bags, flag that fact as important in Connie’s mind, and prevent any possible contradiction from arising in her testimony before the jury. Indeed, for whatever cause, Connie did state to the jury at one time (Tr. 193) that she did not remember whether Brown had been holding any bags — a lapse of memory that Brown’s counsel attempted to capitalize upon in his summation (Tr. 487) — but Connie’s final statement was that Brown had “two bags” in his hand (Tr. 195, see also Tr. 177 — 178). In choosing whether to cross-examine Connie, defense counsel were aware that her testimony that Clayborne had only a gun in his hand (Tr. 181) when he was chasing the insurance man, though he had the two bags in his hands immediately prior thereto, also implicitly corroborated her testimony that previously he had given the two bags to Brown, his companion throughout the day.

Connie’s May 18, 1971, statement to the police and her grand jury testimony were also available to the defense (Tr. 120) and in fact were completely read into the record, out of the presence of the jury (Tr. 112-119, 120-126), before all the defense counsel decided not to cross-examine her. Brown, moreover, had made a statement to the police “that implicate[d] himself and Clayborne” (Tr. 26, 28) and Clayborne also told another person that he “had committed the offense” (Tr. 26) and that “William Brown was along with him” (Tr. 28). Defense counsel were aware of this possible testimony.

While it is not directly relevant to the specific objections raised to counsel’s performance, we note also that Brown’s counsel appeared well prepared and effective in respect to other facets of the trial, for example, in suggesting specific modifications to the charges (e. g., Tr. 408 — 14, 431, 437 — 41). Discussing the nature of aiding and abetting (the defense adopted from the beginning) (e. g. Tr. 91 — 92, 326-33, 485-90), and obtaining the dismissal of four out of the five charges against Brown. And in final argument counsel for both defendants informed the jury of tactical reasons for not cross-examining Connie in a manner designed to benefit their clients’ cases (Tr. 483, 486). Each defendant here was defended by highly skilled and experienced trial counsel, and we are convinced that their decisions were permissible tactical decisions. Moreover, their tactics were highly successful in that they secured acquittals on two first degree murder charges for each defendant and also acquittals on both robbery charges.

It thus appears that defense counsel did a creditable job in the face of the strong adverse proof that confronted their clients. In evaluating the quality of their representation, it must be recognized that it is rather difficult to get an acquittal for clients whose crime is viewed in broad daylight by a disinterested, credible eyewitness who knows the defendants personally. In any event obtaining a complete acquittal should not be the measure of a defense lawyer’s competency and effectiveness. It is the task of counsel merely to attempt by all honorable means to see that justice is done. The lawyers here obtained acquittals for their clients on first degree murder and robbery charges and did not breach their duties to their clients by their decisions not to cross-examine a witness who, if she testified truthfully, could only further damage their clients. To say that such conduct by defense lawyers constitutes inadequate assistance of counsel is not only wrong, it is grossly unfair to competent counsel.

It is a difficult task for a court to attempt to tell experienced defense counsel how to defend their clients — particularly with respect to cross-examination and trial tactics. Some lawyers and judges feel that acquittals in criminal cases can be won by vigorous cross-examination of all prosecution witnesses. But cross-examination is a sharp two-edged sword and more criminal cases are won by not cross-examining adverse witnesses, or by a very selective and limited cross-examination of such witnesses, than are ever won by demolishing a witness on cross-examination. Knowing when not to cross-examine an adverse witness is the art of cross-examination at its highest. This is so because cross-examination very frequently operates to emphasize the critical points in a witness’ testimony, and although it may initially be helpful to the defense in some instances, points on cross-examination can usually be answered and discrepancies explained in favor of the prosecution by re-direct examination. The decision whether to cross-examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court.

The methodology implicit in allowing reversal of convictions for error of defense counsel has many troublesome elements. A defense lawyer, as a legitimate tactic, takes certain action that he considers to be in the best interest of his client. Declining to cross-examine or to fully cross-examine an adverse witness is a common example. Then, on appeal, at the urging of a newly appointed appellate counsel, whose appointment only for purposes of the appeal insulates him from responsibility for the decisions of trial counsel, a panel of the appellate court would second guess the trial lawyers, speculate about what evidence might have been produced and conclude that the conviction of the accused should be reversed, not for judicial error nor for error of the prosecution, but for the claimed error of the accused’s trial lawyer, i. e., the court would speculate that evidence might have been presented more favorably to the accused, and then surmise that the evidence would have gone so far as to influence the jury to acquit. Because of the inherent hazards to the administration of justice of ordering reversals on such grounds, reversal should never be based upon the good faith tactics of defense lawyers except upon the clearest proof of actual prejudice.

IV

As to appellants’ claim that Connie could have been “severely impeached” on cross-examination by evidence that she was compelled to testify “only after she was threatened by a contempt citation,” the statement by the trial judge fully informed the jury as to such particulars:

THE COURT: ... I wish to make this statement for the record at this time. Miss Connie Jackson testified in this Court, because she was compelled to.
She was subpoenaed here. She did not want to. It was obvious. Yesterday by this Court she was held in contempt. She could have served time in jail for that contempt.
She purged herself of the contempt today by her testimony, testimony that she had to give.

Tr. 207.

As to the possibility that Connie was influenced by a $5,000 reward, Clayborne testified to this effect (Tr. 381 — 382) and his testimony was uncontradieted. From the perspective of the defense this was a better way to highlight the point than to cross-examine Connie on the point, hazard a denial that it influenced her, and then face the possibility of her mother denying the claim. One trouble with trying to impeach Connie was that Clay-borne’s defense was an alibi, based on his own testimony. Brown did not testify. Also, Clayborne’s alibi was rebutted by Luvenia Brown (Tr. 232 — 239), and Mr. McNeal testified that he saw two boys fitting the description of Clayborne and Brown running from the scene of the murder right after he “heard a shot” (Tr. 223) at about the time the murder was committed. Chester Brown, a permanent resident in the housing area where the crime was committed who knew both Clayborne and Brown, testified that later in the day on May 12th he asked Clayborne “Did you do it [kill the insurance man]?” and “He said yes” (Tr. 213 — 221). On cross-examination he testified he didn’t think Clayborne was serious because he laughed, but thereafter he had doubts (Tr. 221). Connie’s testimony was also corroborated by other testimony as to the exact place of the crime and the fact that the men ran.

Clearly all this evidence presented a jury question.

Appellants and the dissent argue that the inadequacies of defense counsel blotted out the sole defense of Clayborne and Brown, but a more accurate appraisal indicates that the tactics of counsel blotted out evidence of robbery and premeditation and that counsel were successful in securing a conviction for their clients on the lesser included charge of second degree murder instead of the first degree felony murder, premeditated murder and robbery charges. In reaching this conclusion, we do not find support in the record for the charge that counsel in any way violated any of the “duties owed by counsel to a client” as set forth in United States v. DeCoster, 159 U.S.App.D.C. 326, 332, 487 F.2d 1197, 1203 (1973).

V

Both appellants claim the evidence was insufficient to support the verdict against them. We disagree. Judge Bazelon’s opinion in note 2 addresses this point and distinguishes Brown’s factual situation from that present in our decision in Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969). The continuous association of Brown with Clayborne beginning early in the morning, their arrival at the Jackson home together, their furtive consultation immediately preceding the murder by Clayborne, Brown’s holding both bags of valuables that Clayborne had carried moments earlier and standing close by while Clayborne fought with and shot the insurance man, together constituted sufficient facts to support the court’s decision to leave the issue to the jury. Though the evidence was close — closer as to Brown than as to Clayborne — it was sufficient to influence a jury to convict by the required standards. Close cases are for the triers. The aiding and abetting statute of the District of Columbia, insofar as this case is concerned, is not substantially different from the federal statute on the same subject. Both require proof that the accused knowingly associated himself in some manner with the criminal venture, that he participated in it as in something he wished to bring about and that he sought by his actions to make it succeed. There was no direct proof that Brown shared Clayborne’s ultimately proved criminal intent to murder the insurance man, but proof of such intent is not required.

It is well settled . . . that he need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him.

22 C.J.S. Criminal Law § 92 (1961); see United States v. De La Motte, 434 F.2d 289, 293 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). The murder here was a natural and probable consequence of Brown’s actions which permitted Clayborne to fight with the decedent with his hands free and to shoot him with a loaded weapon. The jury was thus justified in finding that the requirements for conviction had been met.

As for Clayborne, the evidence was clearly sufficient to support an instruction on first degree murder and in any event because of the acquittal on first degree any claim of reversible prejudice is weak.

We also hold that the court properly denied a missing witness instruction with respect to the absence of Freddy Hooks as he was not within' the “peculiar” control of the Government, and also properly refused to allow the defense to comment on his absence. The minor variation from the locally suggested instructions on aiding and abetting was insignificant and the refusal of the Government to supply a list of witnesses, as is required in capital cases (if it is still required) was harmless error since the only significant witness was known to the defense.

We thus affirm the judgments of con-, viction of both appellants.

Judgment accordingly.

APPENDIX A

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Criminal No. 2014 — 71

[Filed Nov. 1, 1972, James F. Davey, Clerk]

UNITED STATES OF AMERICA v. JAMES CLAYBORNE

STATEMENT CONCERNING COUNSELS’ DECISION NOT TO CROSS-EXAMINE

The defendant James Clayborne was charged with First Degree Murder-Premeditated and First Degree Murder-Felony Murder. The only eye witness produced by the Government was a 15 year old girl, Connie Jackson. On May 18, 1972 six days after the murder Connie Jackson gave a three page statement to the police indicating that she was a witness to the crime and alleging that the perpetrator of the crime was the defendant, Clayborne. The Government indicated that she was an uncooperative witness and she had been locked up by the Court for her refusal to testify. Before her testimony counsel for the defendant Clayborne took the position that she should not be permitted to testify because her statements would be inherently unreliable. Counsel for the defendant further took the position that counsel should be permitted to speak to the witness concerning her prospective testimony in order to prepare for cross-examination. The Court denied both requests.

In her direct testimony Miss Jackson confined her answers to but a few words. Twice she broke down, crying while on the stand. Counsel for the Government was not permitted by defense counsel to lead the witness. As a result the direct testimony of Miss Jackson was a great deal more sketchy than her statement of May 18, 1972.

The defense of Mr. Clayborne was that he was in the area but did not commit the crime. Further, he would allege when he took the stand that the statement made by Miss Jackson on May 18, 1972 was not true and that she had been pressured by her mother into giving that statement so that she could receive the substantial reward which had been offered.

Counsel for the defendant Clayborne decided not to cross-examine Miss Jackson for the following reasons:

1. To preserve counsels’ position that the witness should not have been permitted to testify.

2. To preserve counsels’ position that counsel should have been permitted to speak to Miss Jackson before she testified concerning her testimony.

3. The young witness had broken down twice and she presented a very sympathetic witness to the jury and a very difficult witness for any counsel to cross-examine.

4. Miss Jackson’s direct testimony did not give a factual basis to support a charge of robbery or attempted robbery necessary for a felony-murder conviction. 'Had Miss Jackson been permitted by way of cross-examination or by a leading re-direct question to explain fully what allegedly occurred between the deceased and the defendant, James Clayborne, evidence of an attempted robbery most certainly would have come out.

5. Had Miss Jackson been permitted to explain in detail the manner in which the deceased had been allegedly shot by Mr. Clayborne there could well have been sufficient evidence to support the element of premeditation as a part of First Degree Murder.

6. Mr. Clayborne’s defense could be presented without the cross-examination of Miss Jackson. Further, Mr. Clay-borne’s defense might well put the Government in a position requiring it to recall Miss Jackson in rebuttal to discredit Mr. Clayborne’s testimony that she was lying in order to get reward money. If that occurred counsel would then be in a position to freely cross-examine Miss Jackson without the fear of á First Degree conviction.

As it turned out, the Court granted a motion for judgment of acquittal on the Felony Murder count (the count most feared by defense counsel) but did not grant the same motion on the premeditated count. Also, as it turned out, the Government decided not to recall Miss Jackson which put the defense in a position of being able to argue to the jury the fact that Mr. Clayborne’s allegations concerning Miss Jackson remained unrebutted. •

The jury convicted Mr. Clayborne of Second Degree Murder which meant of course that it believed Miss Jackson and disbelieved Mr. Clayborne. All four defense counsel felt that the tactic not to cross-examine Miss Jackson prevented a First Degree conviction.

Respectfully submitted,

/s/ Charles Jarvis Murray CHARLES JARVIS MURRAY Associate Counsel

'BAZELON, Chief Judge

(dissenting):

In a joint trial, appellants were convicted by a jury of second degree murder; Clayborne was also convicted of carrying a pistol without a license. The court today holds that the failure of trial counsel to interview or cross-examine the government’s key witness did not deny appellants the effective assistance of counsel. I cannot agree.

I.

An extensive discussion of the facts in this case is required to place the issue in proper perspective.

A. Pre-Trial

On May 18, 1971, six days after an insurance agent was shot, a Ms. Connie Jackson, fifteen years old, called the police stating she had information regarding the shooting. In her mother’s presence, Ms. Jackson told the police the following story. . Appellants Clayborne and Brown came to her house on the morning of the homicide. Clayborne was carrying two bags, one with watches, the other with pistols, and unsuccessfully tried to sell some of these items to Jackson and her boyfriend.- Shortly thereafter, Mr. Spiro, an insurance agent, arrived and inquired if Ms. Jackson’s mother was at home. When told that she was not, he left. Thereupon, appellants “started whispering to each other and then they left.” Jackson went upstairs to watch from her window and “saw the insurance man and [Clayborne] fighting and [Brown] was standing a little ways away watching. The insurance man ran down the steps and [Clay-borne] ran down the steps behind him and shot him,” apparently with one of the guns previously shown to Jackson. During this time, Brown was holding the bag with the other gun and the bag with the watches. After the shooting, appellants fled in opposite directions, and five minutes later Clayborne returned to his apartment which was located near Ms. Jackson’s.

Jackson further stated that on the day of the shooting she had “told her mother that the insurance man had been shot and that [Clayborne] did it. Mother was mad and said it didn’t make no sense. She told me not to tell the police.” In response to a question from the investigating officer, Jackson stated that she eventually called the police because “I got mad with Shela,” who apparently was Claybome’s girlfriend.

Two months later, Jackson’s statement to the police was read to her before a grand jury. When asked if there were any changes, she stated that Brown never held either bag. A juror attempted to ascertain what happened with Shela that led Ms. Jackson to call the police, but the U. S. Attorney interrupted the question and dismissed the witness.

At a status hearing- on April 14, 1972, counsel for Brown advised the court that the U.S. Attorney “did not want the defense talking to [Ms. Jackson before trial].” The U.S. Attorney replied that the witness had been threatened, although not by counsel for either appellant. He said further that Jackson’s mother had sent her outside the jurisdiction to live with a relative because she was afraid. Despite persistent argument by the prosecutor, however, the court ruled that counsel were entitled to interview the witness, and discussed possible ways in which they could do so.

One week later, at a status hearing on April 21, 1972, the U.S. Attorney informed the court that he was mistaken when he stated that Jackson had left town. He suggested that she could be brought to the courthouse so counsel could interview her. The court advised counsel to get together with the U.S. Attorney and “work out a date [to interview the witness] convenient to all.”

B. Trial

On the opening day of trial, two months after the April 21 status hearing, counsel advised the court that none of the defense attorneys had interviewed Ms. Jackson. “If there is a question about a threat being made to any witness, I want to make sure that [defense counsel] are a long way from that scene.” A U.S. Attorney other than the one who had appeared at the status hearings responded that “[defense counsel] are not to be considered as having anything to do with any possible threats to the witnesses. This is a tight community [where the witnesses and appellants live], and any threats came from the peer groups.”

When Ms. Jackson was called to testify she refused to answer any questions because “it might incriminate me.” The court appointed counsel to represent her, and, after a brief conference with his client, counsel informed the court that her refusal to testify was due to fear of reprisal. Thereupon, the. jury was excused, and in Jackson’s presence her police statement and grand jury testimony were read into the record. The U.S. Attorney then resumed questioning, still outside the presence of the jury, and the witness contradicted her former statements by claiming that Clayborne never had a bag with watches. The court advised the prosecutor to “consider the indictment for perjury,” and instructed the witness that perjury is a “fifteen year penitentiary sentence.” Nonetheless, Jackson refused to answer the next question, and the following colloquy ensued:

The Court: Very well. Let me tell you now what you are faced with. You are going to be faced with two contempt charges. I will leave it to the United States Attorney to prepare the necessary form for criminal contempt, and if I am not mistaken without a jury trial you can be put in jail for as much as six months. I may well hold a jury trial, which then puts — What is the maximum there?
[Counsel for Ms. Jackson]: I think a year.
The Court: . . . The second thing, without any such consuming efforts, I hold you in civil contempt and I commit you to the District of Columbia Jail until such time as you purge yourself by coming here and giving the answers here in Court. Do you understand? Take her away. She is committed to jail.

Jackson’s counsel then informed the court “that she was told by some prosecutor that she would not have to testify in open court and she would not have to face the Defendants with her testimony.” After a bench conference, Jackson was told by the court that she would not be placed in jail that evening; instead she and her mother would be put in protective custody by the U.S. Attorney for the night, “[b]ut I can assure you this, Miss Jackson: If you continue to refuse to testify tomorrow morning, I shall see to it that you are in jail by noon tomorrow and that you will remain there until you are willing to testify.”

The following morning, before the jury was brought in, Jackson answered several questions asked by the U.S. Attorney. The court inquired if she remembered her statement to the police and her grand jury testimony, and if “your testimony today [is] going to be along the same line?” Counsel for Brown immediately requested a bench conference and indicated that he thought the court’s question “raises a very sensitive area in that( the witness, of course, should testify truthfully as to what she currently recalls happening on [the date of the shooting].” The court agreed, and said he would instruct the witness to testify “truthfully.” Before he could do so, however, counsel for Clayborne moved to exclude Ms. Jackson’s testimony “on the grounds that [it] is coerced and therefore inherently probable that it could not be the truth.” The court responded that counsel could explore the circumstances in which she agreed to testify, and whether her testimony was coerced, on cross-examination. A discussion ensued in which counsel for Clay-borne requested that he be allowed to interview Ms. Jackson “for two purposes”: first, because the U.S. Attorney had “kept her from us during the entire length of this case”, and second, “to find out what has happened since she left Court yesterday.” The court asked, “[H]ow did [the U.S. Attorney] keep her from you?” Counsel replied, “[W]e didn’t have her name or know where she lived.” The court suggested that Clay-borne certainly knew the witness’s name and address, but counsel responded, “Clayborne claims not to know who the witness would have been.” Brown’s counsel then stated that “I was aware of who the witness was.” And Clayborne’s counsel followed, “[e]ven if we were remiss in not finding her all this time, we should have an opportunity to ask her— We have no way of cross-examining.” Clayborne’s counsel then switched tactics and argued only that he should be allowed to interview the witness regarding the events of “the last 12 or 18 hours.” The court granted a recess so that counsel could interview Jackson regarding the events that transpired since the close of court on the preceding day, and instructed the court reporter, counsel for Ms. Jackson, and Ms. Jackson’s mother to be present.

At this conference Jackson stated that the previous night she had discussed the case with her mother who told her to “tell the truth,” and that that morning she had reviewed her police statement with the U.S. Attorney. The interview concluded with the following exchange:

[Counsel for Brown]: As a result of your conversations with your mother and [the U.S. Attorney], do you feel now that you have to testify exactly the same way as you did in the statement you made to the police and before the Grand Jury?
The Witness: Yes.
[Counsel for Brown]: Do you feel that if you don’t testify the same way it will be considered perjury on your part?
The Witness: Yes.
[Counsel for Brown]: And do you feel that you, therefore, must say what you said before, even though in your own mind now you might not remember it the same way?
The Witness: Yes.
[Counsel for Brown]: So if you re-
member things differently, you still feel that you have to say what you said before in order not to be guilty of perjury? Is that true?
The Witness: Yes.

Based on this interview, counsel for Brown informed the court that he no longer believed that the events of the preceding day were “merely factors affecting [Ms. Jackson’s] credibility as a witness, . . . [but now thought] her testimony will be so inherently incredible and untrustworthy that as a matter of law she should not be permitted to testify.” The court, outside the presence of the jury, then ordered the transcript of the interview read into the record. After hearing it, he decided that he would reinstruct the witness, “out of the presence of the jury,” to testify to “the truth as she knows it and nothing else.” Brown’s counsel asked if the court would also “state to the witness that even if she remembers things differently from what she may have remembered previously, she should say now what she remembers.” The court replied, “[n]o, ... If you think there is something on cross-examination you can properly develop, you can do so. It is not for me.”

The witness was called and instructed to tell “the truth and only the truth.” She testified essentially to what was in her police statement. At first, when asked if Brown was holding the bags while Clayborne was fighting with the insurance man, she said yes. Shortly thereafter, however, when asked if Brown had anything in his hands, the witness replied, “[n]o, I don’t remember.” The U.S. Attorney was permitted to refresh her memory by having her read her police statement. She was not, however, shown her grand jury testimony, where she stated that Brown was not holding either bag. After reading her police statement, she testified that she now remembered that Brown was holding “two bags.”

After a luncheon recess, counsel for Clayborne advised the court, “[o]nce the jury comes back I am going to announce that I am not going to cross-examine this girl and I am going to ask the Court to hold her for possible leave to cross-examine her later, although I don’t anticipate it. The reason I am putting this on the record now is it is a tactic on our part which we think will help the Defendant. So when the record goes upstairs — ” At that point, the court interrupted, and told counsel that if he planned to cross-examine Ms. Jackson he would have to do so immediately. Counsel declined to do so. Counsel for Brown then stated that he would not cross-examine Ms. Jackson.

Another government witness testified that he had spoken with Clayborne on the day of the homicide, and had asked, “[d]id you do it?”, to which Clayborne responded, “[y]es.” By “it,” the witness said he meant the robbery of the insurance man. On cross-examination, the witness stated that he thought Clay-borne was “jiving” when he claimed to have done “it,” since he was laughing at the time, and that was Clayborne’s manner of joking.

The only witness for the defense was Clayborne who testified that he had stayed at home on the day of the homicide. He said Jackson had visited him in jail nine or ten times, and had told him that her police statement was untrue. She said her mother had “put her up to it” because of a $5000 reward that had been offered by the insurance company.

C. Post-Trial

Three months after trial — and five days after appellant Clayborne filed notice of his appeal — counsel for Clayborne moved to file a “Statement Concerning Counsels’ Decision Not To Cross-Examine [Ms. Jackson].” The reason for this motion was:

In the case at bar the decision to not cross-examine the key Government witness would need no explanation to experienced trial lawyers thoroughly familiar with the facts in the case. However, counsel is aware that many appellate counsel have not tried a criminal case and the fact that trial counsel did not cross-examine the only real Government witness would constitute ineffective assistance per se. Also, the Appellate Court, although presumably experienced trial counsel in the past, may not be sufficiently apprised of the underlying reasons why such a tactic is pursued.

The court granted this motion. The “Statement” contained the following reasons for not cross-examining:

1. To preserve counsels’ position that the witness should not have been permitted to testify.
2. To preserve counsels’ position that counsel should have been permitted to speak to Miss Jackson before she testified concerning her testimony.
3. The young witness had broken down twice and she presented a very sympathetic witness to the jury and a very difficult witness for any counsel to cross-examine.
4. Miss Jackson’s direct testimony did not give a factual basis to support a charge of robbery or attempted robbery necessary for a felony-murder conviction. Had Miss Jackson been permitted by way of cross-examination or by a leading re-direct question to explain fully what allegedly occurred between the deceased and the defendant, James Clayborne, evidence of an attempted robbery most certainly would have come out.
5. Had Miss Jackson been permitted to explain in detail the manner in which the deceased had been allegedly shot by Mr. Clayborne there could well have been sufficient evidence to support the element of premeditation as a part of First Degree Murder.
6. Mr. Clayborne’s defense could be presented without the cross-examination of Miss Jackson. Further, Mr. Clayborne’s defense might well put the Government in a position requiring it to recall Miss Jackson in rebuttal to discredit Mr. Clayborne’s testimony that she was lying in order to get reward money. If that occurred counsel would then be in a position to freely cross-examine Miss Jackson without the fear of a First Degree conviction.

Appellants contend: (A) that their counsels’ failure to cross-examine Ms. Jackson was the product of inadequate investigation and preparation; and (B) that they were substantially prejudiced as a result since Miss Jackson was the only witness of consequence, and she could have been significantly impeached if not rendered wholly incredible. Therefore, appellants argue, they were denied their sixth amendment rights to the effective assistance of counsel.

A

In anticipation of a claim of ineffectiveness, Clayborne’s counsel filed a “Statement” in the record below to advise this court that their decision not to cross-examine Ms. Jackson was a trial “tactic.” Appellate counsel (who was not trial counsel) flatly asserts that trial counsel did not, and indeed could not, cross-examine the witness because they neither interviewed her before trial, nor adequately researched the legal questions at issue. In United States v. De-Coster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1201 (1973), we stated:

This court does not sit to second guess strategic and tactical choices made by trial counsel. However, when counsel’s choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel. (Emphasis supplied.)

To insure “adequate preparation,” we delineated certain specific duties owed by counsel to his client, including “interview[ing] not only his own witnesses but also those that the government intends to call,” and doing “adequate legal research.” In enumerating these obligations, we did not announce new standards for trial counsel, but simply brought together a check list of responsibilities heretofore required, depending, of course, on the circumstances of a given case. Indeed, in the present ease, the court and defense counsel all agreed that counsel would attempt to interview this witness. And despite strenuous objections by the prosecution, the court insisted that she be made available to the defense.

The failure of counsel to interview Ms. Jackson and to do adequate research lays behind five of the six proffered reasons for not cross-examining her. Two of the five reasons rested on counsels’ fears that the testimony elicited would provide evidence either of a robbery or premeditation, and thereby subject appellants to a first degree murder conviction. Counsel did not act to determine whether these fears were justified. Because they failed to interview Ms. Jackson, they were compelled to proceed on their bare speculation as to what she would reveal on cross-examination. Where important information is available to diligent counsel, such speculation is hardly an acceptable substitute.

Counsel also claim that they did not cross-examine because they wanted to preserve their positions taken at trial that Ms. Jackson should not have been allowed to testify at all, or that counsel were entitled to interview her before she testified about matters other than what transpired while she was in protective custody. These reasons were predicated upon an erroneous understanding of the governing case law. Once the court ruled against counsel, they were entitled to do what they “fairly could to limit the prejudicial impact of the[se] ruling[s],” without waiving any appeal with respect to the initial objections.

Counsel’s final reason for not cross-examining was that Clayborne’s defense could be presented without their doing so. This naked conclusion, however, seems highly untenable since appellant’s whole defense appeared to rest on destroying Ms. Jackson’s credibility.

Counsel’s own “Statement”, then, makes it abundantly clear that their decision not to cross-examine Ms. Jackson was uninformed because of a failure to adequately research or investigate their case. Indeed, Clayborne’s attorney admitted as much when he told the court that, having failed to interview the witness, “[w]e have no way to cross-examine [her].”

B

Appellants further contend that they were greatly prejudiced by counsel’s failure to engage in cross-examination. Ms. Jackson was a critical witness and might have been severely impeached on several grounds:

1) Counsel could have brought out the fact that the witness agreed to testify only after she was threatened with a contempt citation and an indictment for perjury. By her own admission, Jackson indicated that she felt compelled to testify “exactly the same way as [she] did in the statement [she] made to the police and before the Grand Jury even though in her own mind now [she] might not remember it the same way.”
2) Counsel could have inquired if the witness knew about a published reward of $5000, and whether the reward influenced the witness or her mother, as Clayborne claimed Jackson told him it had done.
3) Counsel could have asked about Jackson’s assertion to the police, alluded to before the grand jury, that she called the police because she was “mad with Shela,” Clay-borne’s girlfriend.
4) Counsel for Brown could have impeached the witness with her grand jury testimony to the effect that Brown was not holding “any bag at any time.” This evidence was particularly crucial since Jackson vacillated on this point on direct examination, and only stated that Brown was holding the bags after reading her police statement. Moreover, the government’s case against Brown was weak, and turned largely upon the evidence that he held the bags while Clay-borne assaulted the insurance agent.

Prior to DeCoster, supra, an appellant was required to show that counsel’s failure to meet his obligations “blotted out the essence of a substantial defense.” However, in DeCoster, recently held retroactive in United States v. Butler, we held that once an appellant shows a violation of the “precepts” delineated therein, the government must prove “lack of prejudice.” There has been no such showing. Indeed, appellants have clearly satisfied any reasonable view of even their pre-DeCoster burden. They rely on significant matters which might have seriously undercut the witness’s credibility. And theré may well have been other such factors that we do not know of precisely because counsel neither interviewed nor cross-examined the witness. On the other hand, the justifications provided by counsel for not cross-examining, with one exception, are traceable to inadequate research or speculation necessitated by the failure to interview the witness. In short, appellants have demonstrated that counsels’ inadequacies either “blot[ted] out” their sole defense, or prejudiced their ability to show that their defense was blotted out. No more can be required under the most stringent test.

      . D.C.Code § 22-2401 (1973).

      . Id

      . Id §§ 22-2902, 22-3202.

      . Id § 22-2902.

      . Id § 22-3204.

      . Id. § 22-2403.

      . As to Clayborne the court granted acquittals on all charges except first degree premeditated murder and carrying a pistol without a license. As to Brown the court granted acquittals on all charges except second degree murder as a lesser included offense of first degree premeditated murder (Tr. 368).

      . Note 5, supra.

      . 18 U.S.C. § 5010(e).

      . Id. § 5010(c).

      . D.C.Code § 22-105(1973) provides:

        § 22-105. Persons advising, inciting, or conniving at criminal offense to be charged as principals.

      In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be. (Mar. 3, 1901, 31 Stat. 1337, ch. 854, § 908.)

      . Id.

      . The grounds are fully set forth in the statement of counsel. See Appendix A infra.

      . She was 15 at the time of the offense and 16 at the time of the trial.

      . Part of Connie’s statement to the police, of which defense counsel were aware, was more incriminating:
      When James [Clayborne] started whispering I knew he was going to do something so I went upstairs to the third floor bedroom and looked out the window and saw the insurance man and James fighting over by the steps and Little William [Brown] was standing a little ways away watching.
      Tr. 113.

      . See Appendix A.

      . Counsel pointed out that the witness might have testified on cross-examination or re-direct examination in more specific detail as to attempted robbery and premeditation. This was a very definite hazard, obvious to anyone, and counsel could only be considered to be acting in their clients’ best interests by not subjecting them to these risks.

      . A good example of the delicate nuances of cross-examination was given in a recent feature story in the Washington Post which reported a conversation between a Watergate prosecutor and his opponent, a noted defense lawyer:
      “I was at the trial,” says John Seigenthaler, “when Jim Neal walked up to John Wilson (Haldeman’s lawyer) and said, ‘Why are you goin’ so soft on John Dean? I thought you’d go after him hammer and tongs.’
      “And Wilson, he says, ‘The hell you did. You would have done just what I did. And the way I did it.’
      “And Neal — he just laughed. And then he said, ‘You’re right. You’re absolutely right. I would’ve done it just the way you did.’ ”

        Washington Post, Nov. 10, 1974, § L at 3: “Watergate Prosecutor Neal: Shrewd Tennessee Lawyer.”

      . Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968).

      . Crawford v. United States, 126 U.S.App. D.C. 156, 375 F.2d 332 (1967).

      . Thompson v. United States, 132 U.S.App. D.C. 38, 39, 405 F.2d 1106, 1107 (1968).

      . D.C.Code § 22-105 (1973), set forth in note 11 supra.

      . 18 U.S.C. § 2 (1970).

      . Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Lumpkin, 145 U.S.App.D.C. 162, 167, 448 F.2d 1085, 1090 (1971); United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938).

      . See United States v. Brooks, 146 U.S.App. D.C. 1, 8, 449 F.2d 1077, 1084 (1971). From the testimony here the jury could deduce that before the murder Clayborne took the murder weapon from the bag containing two guns, gave the bags to Brown and then, with the gun in his possession, accosted, chased and shot the decedent.

      . See United States v. Dent, 155 U.S.App. D.C. 278, 477 F.2d 447 (1973).

      . See Burgess v. United States, 142 U.S.App. D.C. 198, 203, 204, 440 F.2d 226, 231, 232 (1970).

      . Id.; United States v. Young, 150 U.S.App. D.C. 98, 463 F.2d 934 (1972).

      . Status hearing, Tr. 10. Connie Jackson told Clayborne that she was going to testify (Tr. 384); she visited him 10 times in jail (Tr. 381, 483A), discussed the case with him (Tr. 381) and Clayborne’s brother, who was Connie.’s boy friend, and wrote her a number of letters concerning the case (Tr. 150). Brown’s attorney (Kramer) was also aware of who the witness was (Tr. 147).

      . Appellants were indicted for first degree felony murder, first degree premeditated murder, attempted robbery while armed, and attempted robbery; Clayborne was also indicted for carrying a pistol without a license. At the close of the government’s case, the trial court directed verdicts of acquittal on all the robbery counts, the felony murder counts, and the premeditated murder charge with respect to Brown. Brown was kept “in the case on second degree murder as an aider and abettor.” The jury acquitted Clayborne on the premeditated murder charge, and convicted both appellants of second degree murder.

      . Relying heavily on Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969), appellant Brown argues that the trial court’s refusal to enter a judgment of acquittal on all counts against him was erroneous. The critical distinction between this case and Bailey is that here there was “guilty participation” by Brown in that he held the bags while Clayborne accosted the insurance agent. See p. 483 infra.

      Appellant Clayborne argues that it was erroneous for the trial court to fail to direct a verdict of acquittal on his premeditated murder charge. Since he was acquitted by the jury on this count, however, appellant’s challenge is answered by our opinion in United States v. Dent, 155 U.S.App.D.C. 278, 477 F.2d 447 (1973).

      . Jackson testified that her boyfriend was present during these events, although the record 'does not indicate whether he observed the shooting. The government claimed that it attempted to locate this witness but was unsuccessful. Defense counsel also indicated that they made a cursory effort to discover his whereabouts. Nothing further is reflected in the record, and the witness was unavailable for trial. The court denied appellants’ request to “refer” to this missing witness.

      . The context of the testimony is a bit confused. After hearing her statement to the police read to the grand jury, Jackson and the U. S. Attorney engaged in the following conversation:
      Jackson: And where — [Clayborne] had two bags. [Brown] didn’t have no bags.
      U.S. Att’y: [Clayborne] had two bags; is that correct.
      Jackson: (Nodding).
      U.S. Att’y: And he showed you the gun in one of the bags? And were there watches in the other bag?
      Jackson: (Nodding).
      U.S. Att’y: And did William have any bag at any time?
      Jackson: Uh-uh, no.
      At that point the discussion changed to a different subject.

      . Since there had been no testimony regarding a robbery of the insurance agent, the court ordered the witness’s reference to a robbery stricken from the record.

      . The insurance company had in fact offered such a reward. See Washington Post, May 16, 1971 at A-5 cols. 1 & 2.

      . Counsel for Brown did not join this “Statement.” However, at the close of the “Statement”, Clayborne’s counsel indicated that “[ajll four defense counsel felt that the tactic not to cross-examine Miss Jackson prevented a First Degree conviction.” Thus, although we do not have an explicit statement from Brown’s counsel as to why they did not cross-examine, it appears that the reasons are similar to those offered by Clayborne’s counsel. Moreover, since the case against Brown was weak, and since Ms. Jackson could have been significantly impeached by her grand jury statement, the need to cross-examine her was that much greater for Brown’s counsel than it was for Clayborne’s counsel.

      . At trial, Clayborne’s counsel explained that he was not cross-examining Ms. Jackson because “it is a tactic on our part which we think will help the Defendant.”

      . To my knowledge, no member of this court has ever even suggested that “obtaining a complete acquittal ... be the measure of a defense lawyer’s . . . effectiveness [in Sixth Amendment cases].” Majority Opinion at p. 478. Rather, we — and the Constitution — demand simply that all defendants be given "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” United States v. DeCoster, 487 F.2d 1197, 1202 (1973).

      . See, e. g., United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970); Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971); United States v. Thompson, 154 U.S.App.D.C. 347, 475 F.2d 931 (1973); United States v. Benn, 155 U.S.App. D.C. 180, 476 F.2d 1127, 1132-1135 (1973) (opinion of Bazelon, C. J.).

      . The only offered reason not directly dependent on counsel’s lack of preparation was that Ms. Jackson was a sympathetic witness and that therefore cross-examination might alienate the jury.

      . The conversations that Jackson may have had with Clayborne while he was in jail, page 486, supra, cannot be regarded as substitutes for comprehensive interviews conducted by counsel. Indeed, if, as Clayborne testified, Jackson told him that she had lied to the police, the need for an interview would seem even more compelling.

      . United States v. Maynard, 155 U.S.App. D.C. 223, 476 F.2d 1170, 1175 (1973).

      . See McCormick, Evidence § 30 (1954) (“preparation before trial is the only soil from which, in the day-to-day run of cases, successful cross-examination can grow.”).

      . Failure to introduce evidence of the reward resulted in the following interruption of Clay-borne’s closing argument:
      Counsel: . . . Meanwhile the insurance company puts up a reward—
      The court: I never heard any evidence on this. Disregard that, ladies and gentlemen. There is no evidence in this case anybody put up any reward.
      Evidence of a reward “may affect the credibility of a witness for the prosecution.” 3A Wigmore § 969 (Chadbourn rev. 1970). See Wheeler v. United States, 351 F.2d 946 (1st Cir. 1955); Harris v. United States, 83 U.S. App.D.C. 348, 169 F.2d 887 (1948).

      . One of the reasons for requiring the government to show lack of prejudice from counsel’s ineffectiveness is that “proof of prejudice may well be absent from the record precisely because counsel has been ineffective.” United States v. DeCoster, supra at 1204.

      . Compare Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971) (“counsel for [appellant’s] co-defendant did conduct cross-examination in a manner which inured substantially to the benefit of [appellant], This we think afforded effective assistance of counsel insofar as it depended on cross-examination.”).

      . Compare Bailey v. United States, 135 U.S. App.D.C. 95, 416 F.2d 1110 (1969). See note 2 supra.

      . See Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968).

      . United States v. Butler, 504 F.2d 220 at 223 n. 11 (August 30, 1974) at 6 n. 11.

      . United States v. DeCoster, supra 487 F.2d at 1204.


source: Caselaw Access Project

author: BAZELON, Chief Judge:

license: Public Domain

text:
    CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 633 OF NEW HAMPSHIRE, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
    No. 73-1704.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 31, 1974.
    Decided Dec. 23, 1974.

      Angelo V. Arcadipane, Washington, D. C., for petitioner.
    Charles P. Donnelly, Atty., N. L. R. B., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., were on the brief for respondent.
    Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.
   BAZELON, Chief Judge:

George Law is Treasurer of and owns a controlling interest in three sister transport corporations based in Nashua, New Hampshire. The largest of these three, Law Motor Freight, employed in June, 1972, approximately 80 non-supervisory workers and recognized as the sole bargaining representative of those employees Teamster Local 633. The other two corporations were respectively Bulk Haulers, Inc., which employed six non-supervisory workers, and Law Warehouses, Inc., which employed five non-supervisory workers. Neither of these two corporations had recognized a union in June of 1972. Ronald Hall was employed as a driver for Law Motor Freight in May, 1970, and pursuant to a then-existing union security agreement between Law Motor Freight and Local 633 became a member of the Teamsters. In November of 1970, Hall was transferred to Bulk Haulers where he was assigned to deliver certain shipments of liquor under a contract between^ Bulk Haulers and the New Hampshire State Liquor Commission. His immediate supervisor in that job was one Charles McKay and McKay’s immediate superior was Henry Therriault. Stephen McKay was hired subsequent to Hall and also drove for Bulk Haulers under the supervision of Charles McKay and Therriault.

In November, 1971, after some tension between Hall and Therriault over a few late deliveries by Hall, Hall contacted Local 633 and held a meeting at his home which included Stephen McKay, a representative of the union and himself. Hall later spoke with at least two other drivers about the union on the telephone and at the terminal of Bulk Haulers. Sometime between November 23 and December 5, 1971, Therriault called Stephen McKay into his office and questioned him about union. On December 9, 1971, Therriault fired Ronald Hall. On December 14, 1971, Local 633 filed unfair labor practice charges against Bulk Haulers. On January 31, 1972, the General Counsel of the National Labor Relations Board filed a complaint alleging that Bulk Haulers had violated § 8(a)(1) of the National Labor Relations Act by questioning Stephen McKay and had violated § 8(a)(1) and (3) by discharging Ronald Hall. The Trial Examiner found against the General Counsel on both counts and the Labor Board adopted without opinion the trial examiner’s findings and order. Local 633 petitions this Court to review and set aside this order. Finding the Union’s arguments persuasive, we reverse and remand the case for proceedings consistent with this opinion.

I. The Questioning of Stephen McKay

We first turn to the alleged violation of § 8(a)(1) through the questioning by Therriault of employee Stephen McKay. According to the trial examiner, Therriault initiated the questioning by calling McKay into the company’s conference room. Therriault then asked McKay whether McKay had been approached by the union, adding that McKay did not have to answer this question if he did not wish to. McKay stated in response that he had indeed been approached by the union. Therriault then remarked that he expected that sooner or later Bulk Haulers would go union but that McKay would be wise to ensure that the benefits obtained through unionization were sufficient to offset any union dues. Therriault also stated that if the union came in, the senior driver would get the better wdrk, if that driver wanted it, and that McKay who was relatively less senior “could come up short.” The trial examiner found that the questioning was limited and that Therriault, by assuring McKay that he did not have to answer his question, “blunted what otherwise might have been the coercive nature of the inquiry.” The trial examiner further found that statements relating to the adverse effects of a union seniority system were permissible predictions with a reasonable basis in fact and thus were legally protected speech under § 8(c) of the National Labor Relations Act.

We begin our analysis with a brief discussion of the nature of the § 8(a)(1) offense of “coercive interrogation”. The policy of § 8(a)(1) is to protect employee free choice in the decision whether to accept union representation, a free choice explicitly preserved in § of the NLRA7 and implicit in a number of related areas of national labor policy. The specific focus of § 8(a)(1) is the prohibition of the use of employer economic power to interfere with this free choice. But neither § 8(a)(1) or its union counterpart, § 8(b)(1), could reasonably be read to eliminate employer and union attempts to persuade workers of the benefits or costs of accepting the union. First, such a result would lead to the absurd conclusion that free choice means a relatively uninformed choice and, second, the result would be inconsistent with § 8(c) of the Act which implements traditional First Amendment policies. The burden of § 8(a)(1) is thus to distinguish between employer attempts to persuade workers of the disadvantages of unionization and employer attempts to use their economic power to “coerce” workers into voting against the union. But, as should be immediately obvious, there is no clear cut distinction between these two kinds of activity. There is always an iron “fist inside the velvet glove” of persuasion. Established First Amendment doctrine would seem to indicate that this inability to easily distinguish protected from non-protected speech is cause for restricting the government’s ability to remedy the non-protected speech, but the Supreme Court has expressly rejected that analogy. It is thus the task of the Labor Board in the first instance and this Court on appeal to “judge the impact of utterances made in the context of the employer-employee relationship.”

The Board has since the inception of the National Labor Relations Act recognized that interrogation by an employer of a worker’s attitude toward the union and that statements by the employer about what might happen if the union is selected as the representative of th« employees have a tendency to coerce workers in the exercise of their § 7 rights. The Labor Board and the courts have over the years crystallized a number of “factors” to be considered in determining whether employer questioning and predictions as to the consequences of unionization pass beyond permissible persuasion into impermissible use of employer economic power. A number of these factors were enunciated in the leading case of Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) and other factors were suggested in a subsequent case in the Fifth Circuit. Virtually every Circuit Court of Appeals has adopted, explicitly or implicitly, the Bourne factors and we think that these factors supply the proper starting place for judicial and administrative analysis of whether particular employer questioning was in the totality of circumstances “coercive” or merely persuasive. Passing from the coercive nature vel non of questioning about an employee’s attitude toward a union to employer statements as to the effect of unionization, the recent decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969) establishes that such statements must be either non-coercive or a prediction “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control . . Whether statements as to the effect of unionization are coercive involves an inquiry essentially similar to that suggested in Bourne.

It is apparent from even a cursory reading of the trial examiner’s decision in this case, adopted without opinion by the Labor Board, that the type of inquiry mandated by Bourne and related cases was not conducted here. The trial examiner properly considered the extent of the questioning by Therriault. Surely, an isolated and limited set of questions would not rise to the level of employer “coercion”. However, the trial examiner did not stop there but also stated that Therriault “by assuring McKay that he need not answer unless he wanted to . . blunted what otherwise might have been the coercive nature of the inquiry.” We find this conclusion highly problematic. Without a supporting discussion of the totality of circumstances surrounding the questioning, we are not prepared to hold that the bare “assurance” that the employee need not answer is sufficient to eliminate what would otherwise be employer economic coercion. We think the Board should conduct a more searching inquiry into the nature of the questioning and the circumstances in which it was conducted before concluding the questioning was not coercive. As to Therriault’s prediction that McKay might “come up short” because of union seniority provisions, we are not prepared to evaluate this statement under the Gissel test until the Board has more fully considered whether the circumstances of the questioning were coercive. We also note that there was no evidence in the record to support the trial examiner’s conclusion that Therriault had a reasonable basis in fact for his suggestion that the union might bring in a seniority system which would disadvantage McKay. We thus think that the better course of action at this stage is to remand the case to the Board for a more complete evaluation of Therriault’s questioning of McKay in light of the discussion in this opinion. This remand is consistent with the holding in Gissel that the Labor Board must in the first instance perform the extremely delicate task to distinguishing employer coercion from employer persuasion.

A consideration of the vagaries of this task compels us to suggest to the Board the beginnings of a principled approach to distinguishing coercion from persuasion. This approach, it would seem, is also instructive on the similarly delicate issue of whether a statement' is a “prediction” or a “threat of retaliation.” A § 8(a)(1) violation based on speech alone is made out solely by reference to imminent coercive actions. Speech which carries a message of actual coercion is more than pure speech and thus is subject to balance with other important social interests. The Congress has concluded that the right of workers to freely associate for their economic betterment is of more social importance than the employer’s free speech rights when that speech is backed by a threat of action. The Supreme Court has let that judgment stand. But coercion must surely be interpreted to mean more than a persuasive argument that certain events will occur which are distasteful to the listener. Rather coercion is defined by reference to the will of the speaker— does the speaker intend to perform an act for no other reason than that the listener is in favor of the union? Of course, the speaker’s intent must be inferred from the circumstances as they appear to the reasonable person. Thus, to take examples from a recurrent § 8(a)(1) problem, employer assertions that “serious harm” will result from unionization are generally not an unfair labor practice while assertions that the employer will “bargain from scratch” are unfair labor practices.

II. The Discharge of Ronald Hall

We next turn to the alleged § 8(a)(1) and (3) violation by the discharge of Ronald Hall. The trial examiner found that the General Counsel had not proven by a preponderance of the evidence that Therriault knew of Hall’s union activities when he fired Hall and that, therefore, the discharge could not have been motivated by Hall’s union activities. The trial examiner recognized that the Board’s “small plant doctrine” permits an inference that the company knew of the union activities of specific employees from evidence that union activities “were carried on in such a manner, or at times that in the normal course of events, [the Company] must have noticed them.” However, the examiner felt that any inference arising from the “small plant doctrine” in this case was overcome by Therriault’s denials that he had knowledge of Hall’s activities. The Board in its brief on this appeal has apparently abandoned this argument in favor of the position that Hall’s activities were not conducted in such a manner that the Company must have noticed them. The trial examiner also found that other circumstantial evidence introduced by the general counsel was not sufficient to establish Therriault’s knowledge of Hall’s activities. Since the trial examiner concluded that Therriault did not know of Hall’s union activities, he did not decide whether Hall’s discharge was based on good cause.

We need not decide here whether the “small plant doctrine” permits or compels an inference of employer knowledge absent evidence — as opposed to conclusory denials — to the contrary. The overwhelming weight of the circumstantial evidence in this record requires a finding that no substantial evidence exists to support the position that Therriault did not know of Hall’s activities. We first note that Therriault need not have been morally certain that Hall was engaged in union activities in order for a finding of discriminatory discharge to be permissible. It is enough that he had a reasonable suspicion that Hall was the “culprit” and was therefore willing to take action upon that suspicion. Second, whether or not the “small plant doctrine” compels any inferences, clearly the fact that only six employees were involved in the relevant bargaining unit is some circumstantial evidence that any union activities would come to the attention of the Vice-President of Operations of the unit, in this case our Mr. Therriault. This circumstantial evidence is buttressed by fact that an employee of Law Warehouses and an employee of Bulk Haulers whom Hall had not directly spoken to were aware of Hall’s activities. Furthermore, the “small plant doctrine” suggests that the nature of the union activities is relevant circumstantial evidence. Here Hall spoke with workers on the company premises — in particular, the terminal building. The trial examiner so found. These activities were carried on for approximately two months prior to Hall’s discharge. Furthermore, Hall had brought himself to the attention of the Bulk Haulers management by several complaints and was admittedly known by the management as the only union member among the Bulk Haulers drivers. The very persuasive nature of this evidence is made legally compelling by Therriault’s admissions that (1) he knew the union would attempt to organize the company (an admission made to Stephen McKay); (2) he and the Company were opposed to unionization and (3) he questioned his employees about whether they had been approached by the union “every time that I talked to them, practically. . . . ” Therriault’s testimony on why he did not ask Hall himself whether Hall had been approached by the union was dissembling to the point of disbelief. We further note that the timing of Hall’s discharge is highly suspect. Hall was discharged shortly after Therriault had questioned Stephen McKay. We refrain from commenting on the validity of the reason offered to support Hall’s discharge, but we do note that Therriault’s version of one particular event leading up to the discharge was not credited by the trial examiner. We finally note that Hall was the spearhead of the unionization effort at Bulk Haulers and it is well known that discharge of a leading union adherent is a classis method of combat-ting unionization. We would be very hesitant to give significant weight to Therriault’s conclusory denial of knowledge of Hall’s activities, but in this case we do not think it should be given any weight at all since Therriault’s testimony was less than candid, to say the least.

Against these facts, the trial examiner’s conclusion that Therriault did not know or reasonably suspect Hall was attempting to organize his. employees is nothing short of incredible and is so devoid of evidentiary support that we must refuse to accept it as a rational conclusion. We thus reverse the Board’s acceptance of the trial examiner’s decision. However, we are not prepared to hold at this time that Hall’s discharge violated § 8(a)(3) or (1). The trial examiner’s determination that Therriault did not know of Hall’s union activities made it unnecessary for him to consider whether Hall’s discharge was motivated by legitimate business reasons or by animosity to the union. We would be very hesitant to find a § 8(a)(3) violation simply of the basis of employer knowledge of union activities and employer opposition to unionization. There is, of course, more evidence than this in the record to support a § 8(a)(3) charge but we think that evaluation of this evidence is a task for the Labor Board in the first instance. We, therefore, remand the case for such an evaluation.

In sum, we reverse the Board’s determination that Therriault did not violate § 8(a)(1) by questioning Stephen McKay and remand for further consideration in light of Part I of our opinion. We also reverse the Board’s determination that Therriault did not know of Hall’s union activities and thus could not have discharged him in violation of § 8(a)(1) and (3) and remand for a finding of whether Hall’s discharge was motivated by his union activities.

So ordered.

      . 29 U.S.C. § 158(a)(1) (1970).

      . Id.; 29 U.S.C. § 158(a)(3) (1970).

      . Bulk Haulers, Inc., 201 N.L.R.B. No. 61 (1972).

      . Id., reprinted in Joint App. at 154.

      . Id. citing § 8(c), 29 U.S.C. § 158(c) (1970).

      . NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964).

      . 29 U.S.C. § 157 (1970).

      . See NLRB v. Exchange Parts Co., 375 U.S. 405, 409-410, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); Thomas v. Collins, 323 U.S. 516, 547, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (Jackson, J„ concurring); NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 477-479, 62 S.Ct. 344, 86 L.Ed. 348 (1941).

      . See NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

      . NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964).

      . Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971).

      . NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

      . Id.

      . See NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348 (1941); Blue Flash Express, Inc., 109 N.L.R.B. 591 (1954); Standard-Coosa-Thatcher Co., 85 N.L.R.B. 1358 (1949).

      . NLRB v. Camco, Inc., 340 F.2d 803, 804-805 (5th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). See NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 713-714 (2d Cir. 1969).
      The original Bourne factors are as follows:
      (1) The background, i. e. is there a history of employer hostility and discrimination?
      (2) The nature of the information sought, e. g. did the interrogator appear to be seeking information on which to base taking action against individual employees?
      (3) The identity of the questioner, i. e. how high was he in the company hierarchy?
      (4) Place and method of interrogation, e. g. was employee called from work to the boss’s office? Was there an atmosphere of “unnatural formality”?
      (5) Truthfulness of the reply.
      332 F.2d at 48.

      . See Utrad Corp. v. NLRB, 454 F.2d 520, 524-525 (7th Cir. 1972); NLRB v. Consol. Diesel Elec. Co., 469 F.2d 1016, 1020 n. 9 (4th Cir. 1972); Corriveau & Rothier Cement Block, Inc. v. NLRB, 410 F.2d 347, 349 (1st Cir. 1969); NLRB v. Hotel Conquistador, 398 F.2d 430, 434 (9th Cir. 1969); Jervis Corp. v. NLRB, 387 F.2d 107, 111 n. 3 (6th Cir. 1967); NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 99 (8th Cir. 1966); NLRB v. Camco, Inc., 340 F.2d 803, 804-805 (5th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). See also the reasoning in National Can Corp. v. NLRB, 374 F.2d 796, 804-807 (7th Cir. 1967).

      . There is nothing in Local 49, Operating Eng’rs v. NLRB, 122 U.S.App.D.C. 314, 353 F.2d 852, 856 (1965), on remand Struksnes Construction Co., 165 N.L.R.B. No. 102 (1967) approved NLRB v. Gissel Packing Co., 395 U.S. 575, 609, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), which is inconsistent with Bourne. The Struksnes case concerned an employer poll of his employees to determine majority sentiment. This Court refused to accept the Board’s position based on its loss in NLRB v. Lorben Corp., 345 F.2d 346 (2d Cir. 1965) that an employer poll was not a violation of § 8(a)(1) simply because the employer did not inform the employees of the purpose of the poll and assure them that there would be no retaliation. This Court remanded the case to the Board to develop specific standards to govern employer polls. The Supreme Court approved the Board’s remand effort apparently as a “safe harbor” for the employer who, under prior Board authorization card practice, might be between the devil and the deep blue sea when deciding whether to recognize an authorization card proffer. NLRB v. Gissel Packing Co., supra at 609, 89 S.Ct. 1918. The need for this safe harbor is considerably lessened by the Board’s new practice on authorization cards announced at oral argument in Gissel, 395 U.S. at 594, 89 S.Ct. 1918, and is eliminated altogether by the Board’s most recent shift in authorization card policy rejected by this Court. See Local 413, Truck Drivers v. NLRB, 159 U.S.App.D.C. 228, 487 F.2d 1099 (1973), cert. granted sub nom. Linden Lumber Div. v. NLRB, 416 U.S. 955, 94 S.Ct. 1967, 40 L.Ed.2d 305 (1974). In any event, we do not think that the specific holding in Struksnes can overcome the weight of § 8(a)(1) precedent recognized in the reasoning of Gissel. Cf. NLRB v. Rubin, 424 F.2d 748, 751 (2d Cir. 1970); NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 713-714 (2d Cir. 1969); General Mercantile & Hardware Co. v. NLRB, 461 F.2d 952, 954 (8th Cir. 1972).

      . The relation between this “test” under § 8(a)(1) and the general Bourne analysis of coercive circumstances is not clear from the decided cases which variously merge the two and treat each as an independent ground for refusing to find a § 8(a)(1) violation. One possible view is that this specific Gissei test quoted in the text is a per se rule for determining whether one particular statement (as opposed to a set of coercive circumstances) is coercive. See pp. 495-496 infra.

      . See generally Louisburg Sportswear Co. v. NLRB, 462 F.2d 380, 385-386 (4th Cir. 1972); J. P. Stevens & Co. v. NLRB, 449 F.2d 595 (4th Cir. 1971); Central Hardware Co. v. NLRB, 439 F.2d 1321, 1328-1329 (8th Cir. 1971); NLRB v. Lenkurt Elec. Co., 438 F.2d 1102 (9th Cir. 1971); Automation & Measurement Div. v. NLRB, 400 F.2d 141 (6th Cir. 1968); cases cited note 26 infra.

      . Cf. NLRB v. General Stencils, Inc. v. NLRB, 472 F.2d 170 (2d Cir. 1972); St. Louis Car Div. v. NLRB, 439 F.2d 1145, 1148 (8th Cir. 1971); NLRB v. Consol. Diesel Elec. Co., 469 F.2d 1016, 1020 -1021 (4th Cir. 1972).

      . See International Union Electrical Workers v. NLRB, 110 U.S.App.D.C. 91, 289 F.2d 757, 763 (1960).

      . 395 U.S. at 620, 89 S.Ct. 1918.

      . NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); see Thomas v. Collins, 323 U.S. 516, 547, 65 S.Ct. 557, 89 L.Ed. 630 (1945) (Jackson, J., concurring).

      . Cf. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Feiner v. New York, 340 U.S. 315, 321-331, 71 S.Ct. 303, 95 L.Ed. 295 (1951) (Black and Douglas, JJ., dissenting); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1740 (1949). Compare these cases with the “fighting words” doctrine of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1699 (1942).

      . When the employer declares that he will have to move or close down if the union comes in and obtains higher wages, union organizers can reply that their negotiators will take account of the company’s position and endeavor not to induce its departure from the area. Under these circumstances, the arguments on both sides are legitimate and the voters are free to choose between them. But if the employees are led to believe that the company will simply close down automatically if the union is selected, they are left with a devastating and improper assertion which the organizer is unable to rebut save by pointing out that the employer cannot carry out his plan without violating the law. Rightly or wrongly, this is an argument that will often make little or no impression on the voters.
      Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 77 (1964). This view of the § 8(a)(1) principle, when applied to employer speech, was adopted in Luxuray of New York v. NLRB, 447 F.2d 112, 117 (2d Cir. 1971) and is implied in NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969) (“If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction . ..”).
      Viewed in this context, § 8(a)(1) pure speech violations are really an inchoate form of actions which if completed would violate § 8(a)(1) or (3) under established doctrine.

      . See NLRB v. Saunders Leasing System, Inc., 497 F.2d 453, 456-457 (8th Cir. 1974); E. I. Du Pont de Nemours & Co. v. NLRB, 480 F.2d 1245, 1247 (4th Cir. 1973); NLRB v. Holly Farms Poultry Indus., Inc., 470 F.2d 983, 985 (4th Cir. 1972); NLRB v. Erie Marine, Inc., 465 F.2d 104, 106 (3d Cir. 1972); NLRB v. Aerovax Corp., 435 F.2d 1208 (4th Cir. 1970). See also the “propaganda movie” cases: Luxuray of New York v. NLRB, 447 F.2d 112, 117 (2d Cir. 1971); Kellwood Co. v. NLRB, 434 F.2d 1069 (8th Cir. 1970); Southwire Co. v. NLRB, 383 F.2d 235 (5th Cir. 1967).

      . We have, of course, no dispute with the proposition that the employer must be aware of the employee’s union activities in order to discharge that employee on the basis of those activities. See Local 728, Teamsters v. NLRB, 131 U.S.App.D.C. 195, 403 F.2d 921, 923 (1968), cert. denied, 397 U.S. 935, 89 S.Ct. 296, 21 L.Ed.2d 272 (1970); General Mercantile & Hardware Co. v. NLRB, 461 F.2d 952, 955 (8th Cir. 1972); NLRB v. Lexington Chair Co., 361 F.2d 283, 291 (4th Cir. 1966).

      . Hadley Mfg. Co., 108 N.L.R.B. 1641, 1650 (1954). See Famet, Inc. v. NLRB, 490 F.2d 293, 295-296 (9th Cir. 1973); NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714, 722 (5th Cir. 1973); NLRB v. Mid State Sportswear, Inc., 412 F.2d 537, 539-540 (5th Cir. 1969); NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966).

      . See NLRB v. Buddies. Supermarkets, Inc., 481 F.2d 714, 722 (5th Cir. 1973).

      . A finding of employer knowledge may clearly be established on the basis of circumstantial evidence. See NLRB v. Wal-Mart Stores, Inc., 488 F.2d 114, 116 — 117 (8th Cir. 1973); Famet, Inc. v. NLRB, 490 F.2d 293, 295 (9th Cir. 1973); NLRB v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295 (2d Cir. 1972); Texas Alum. Co. v. NLRB, 435 F.2d 917, 919 (5th Cir. 1970). Anything to the contrary in Amyx Indus. Inc. v. NLRB, 457 F.2d 904 (8th Cir. 1972) must, therefore, be disapproved.

      . See NLRB v. Clinton Packing Co., 468 F.2d 953, 955 (8th Cir. 1972).

      . The trial examiner apparently felt that the employees of Law Motor Freight, Bulk Haulers and Law Warehouses should be combined for purposes of applying the “small plant doctrine.” The doctrine would still be applicable if that is done in this case, but that addition is manifestly unreasonable since 90% of the total employees of these three companies worked for Law Motor Freight which was already unionized. Therefore, such employees would not be a subject of concern to a management attempting to prevent further unionization of another company. Bulk Haulers itself had, as indicated in the text, only six non-supervisory employees.

      . That is, if the union activities were such that the activities would naturally come to the attention of the management, then an inference of employer knowledge is reasonable. See NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966). Cf. Texas Alum. Co. v. NLRB, 435 F.2d 917, 919 (5th Cir. 1970).

      . Hearing Tr. at 496, reprinted in Joint App. at 132-33.

      . Hearing Tr. at 496-99, reprinted in Joint App. at 132-36.
      In particular, Therriault at first stated that he spoke with all his employees about the union, then stated that he not spoken to Hall about the union (if he had, the inference of knowledge would have been irresistable) and finally explained Hall's exclusion from questioning because he, Therriault assumed all union members had to vote for the union. This explanation is inconsistent with testimony that he, Therriault, knew that Hall joined the union pursuant to a union security agreement at Law Motor Freight and thus Hall’s union membership was not probative of his support of the union. Hearing Tr. at 487, reprinted in Joint App. at 127.

      . Therriault testified that the reason for Hall’s discharge was his late deliveries. The alleged “last straw” was Hall’s late departure on December 6, 1971. Therriault testified that Charles McKay, Hall’s supervisor, received a complaint about Hall’s alleged late delivery on the 6th. McKay denied this statement and the delivery papers Hall returned indicated that he had arrived on time. The trial examiner did not credit Therriault’s version.

      . See John Klann Moving & Trucking Co. v. NLRB, 411 F.2d 261, 262-263 (6th Cir. 1969); NLRB v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (5th Cir. 1965). See also NLRB v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295 (2d Cir. 1972).

      . See notes 35-36 supra.

      . NLRB v. Speed Queen, 469 F.2d 189 194 (8th Cir. 1972).