author: FRIENDLY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stanton FREEMAN, Defendant-Appellant.
    No. 1050, Docket 74-1238.
    United States Court of Appeals, Second Circuit.
    Argued May 2, 1974.
    Decided June 7, 1974.

      Myron Beldock, New York City (Kathleen C. Wresien and Beldock, Levine & Hoffman, New York City, of counsel), for defendant-appellant.
    (Edward John Boyd, V., U. S. Atty., Eastern District of New York, and Paul B. Bergman, Asst. U. S. Atty., of counsel), for plaintiff-appellee.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   FRIENDLY, Circuit Judge:

An indictment in the District Court for the Eastern District of New York charged Kim Ornitz, Marilene Tombini, Francisco Rudge, Hermano Albuquerque, Rosalys Rudner and appellant Stanton Freeman with conspiring between May 15 and June 18, 1973, to import cocaine into the United States, and with three substantive offenses — the importation of five pounds of cocaine, possession of the cocaine with intent to distribute it and possession of the cocaine on board an aircraft arriving in the United States, in violation of 21 U.S.C. §§ 952(a), 841(a)(1) and 955. The charges against Albuquerque were dismissed prior to trial. Tombini and Rudge pleaded guilty to the possession on board charge and testified for the Government. Rosalys Rudner is a fugitive. The case against Ornitz and Freeman was tried to Chief Judge Mishler without a jury. At the conclusion of the Government’s case, he dismissed the charges against Ornitz for lack of sufficient evidence. This left only Freeman, who testified in his own defense and presented other witnesses. In a memorandum of decision Chief Judge Mishler found him guilty of the conspiracy and of the three substantive offenses and sentenced him to concurrent terms of two'years imprisonment and five years special parole.

Freeman’s principal attack, and the only one we need to consider, is directed at the sufficiency of the evidence. It is common ground that Freeman never possessed the cocaine, either directly or “constructively,” and consequently never possessed it with intent to distribute, never possessed it on board an aircraft, and did not actually import it; his conviction on the substantive counts must rest upon his conviction for conspiracy under the doctrine of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), or conceivably, on his being an aider or abettor. It is also clear that the standard of review is no longer the rather low one of United States v. Tutino, 269 F.2d 488, 490 (2 Cir. 1959), urged by the Government, namely, “whether, taking the evidence in the view most favorable to the government, there is substantial evidence to support the verdict”, here the judgment. Rather, despite United States v. Dudley, 260 F.2d 439, 440 (2 Cir. 1958), which followed United States v. Costello, 221 F.2d 668, 671 (2 Cir. 1955), aff’d without discussion of this point, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the test to be applied in reviewing the sufficiency of the evidence after a bench trial is the same as the one we have since adopted, United States v. Taylor, 464 F.2d 240 (2 Cir. 1972), overruling the Costello and Tutino line of cases, when the issue is the propriety of submission to a jury. Adapting Judge Prettyman’s formulation in Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-233 (D.C. Cir. 1947), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), with respect to jury trials, which we endorsed in Taylor, the test here is whether upon the evidence, giving full play to the right of the trial judge to determine credibility, weigh the evidence, and draw justifiable inferences of fact, “a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” This does not alter the principle that after a conviction we consider the evidence “in the view most favorable to the government”; it simply raises the level that the evidence so considered must meet.

Despite1 some criticisms by defense counsel, we accept Chief Judge Mishler’s account of the conspiracy and its unravelling up to the time of Freeman’s first appearance with any of the other persons charged. Omitting footnotes, this is as follows:

In the Spring of 1973, Francisco Rudge travelled to his native Brazil from the United States. During a stopover in Bolivia he learned that he could purchase pure cocaine at $2,500.-00 per kilo without difficulty. When he returned to the United States, he met with one George Morao at his room in the Hotel Albert on East 10th Street in Manhattan, and discussed the importation of cocaine. Morao assured Rudge that he would have no difficulty disposing of the cocaine. In May 1973, Rudge and Morao met again in Rudge’s room at the Hotel Albert with one Rosalys Rudner' to discuss plans for importing cocaine from Bolivia. Rosalys Rudner, a national of Brazil, lived with Rudge at the Hotel Albert. It was decided to arrange for the importation in June.
* * * * * *
Rudge and Rudner decided to enlist the aid of one Marilene Tombini as a courier in the plan. Tombini, a national of Brazil, was then residing in London. Rudge and Rudner flew to London where they met with Tombini. Tombini agreed to play the assigned role in the plan. Rudge paid for Tombini’s return to New York. Tombini came to New York on June 2nd. The plans were finalized at a meeting in Rudge’s room at the Hotel Albert in early June, attended by Rudge, Rudner and Tombini. Rudge agreed to supply the funds. Tombini was to fly to Buenos Aires, Argentina. Rudge and Rudner were to fly to Bolivia and Rudner thereafter was to meet Tombini with the cocaine in Buenos Aires.
Rudge left John F. Kennedy International Airport on June 6th for Bolivia on Braniff Airlines. Rudner left for Bolivia on Lufthansa on the same day. Tombini left for Buenos Aires on June 7th on Argentina Airlines. Rudge purchased two (2) kilograms of cocaine in Bolivia at $2,500.00 a kilo. He turned it over to Rudner, who then left for the Sheraton Hotel in Buenos Aires to meet Tombini. Rudge returned to New York at the John F. Kennedy International Airport in the early hours of June 13th.
Rudner delivered two suitcases in which were concealed the two kilograms of cocaine. The next morning, Tombini put her personal belongings into the two suitcases. Rudner and Tombini boarded a Pan American flight to New York. Tombini was arrested as she attempted to pass through Customs. Rudner had taken a position on a fast moving line at a Customs checkout counter and lost sight of Tombini. Rudner in the meantime waited at the Terminal outside of Customs. When Tombini failed to exit from Customs, Rudner surmised that Tombini had been arrested.
Rudner took a taxi to the Hotel Albert to report her suspicions to Rudge. She came with two suitcases. Rudge, understanding the gravity of the situation, suggested that Rudner pack the clothing and other personal effects that she had left in his hotel room and go to the Hotel Paramount on 46th Street, near Broadway. She took a taxi and registered at the Paramount Hotel in the early hours of June 14th.
After Rudner left the Hotel Albert, Rudge called Morao, his prospective purchaser. Rudge informed Morao that he had sent Rudner to the Hotel Paramount, and the two discussed the probability of Tombini’s arrest.
Rudge was arrested at about midnight on June 13th on the information supplied by Tombini. Morao learned of the arrest and advised Rudner.

Judge Mishler relied on three sets of circumstances in reaching the conclusion that Freeman was a member of the conspiracy. Two of these can be stated quite briefly; the third and most important will require more detail. Before going into any of this we must give some description of Freeman, postponing at this juncture the facts on which the Government relies to show his participation in the conspiracy.

At the time of the offenses here charged, Freeman, a 39-year-old Canadian citizen and a permanent resident of the United States, lived in West Greenwich Village, Manhattan, with his wife and two children. He had worked in a Canadian electronics firm and then in what is described as the “music business.” In 1966 he opened a multimedia night club, the Electric Circus. He subsequently met Morao, a film maker and photographer, and Morao’s common-law wife, Theresa Costa, also a Brazilian, and established a social relation with them. They had been in each other’s homes and had gone out together.

In May and June, 1973, Freeman was preparing to open two night clubs in the Hotel Diplomat on West 48th Street in New York City and was working at least 18 hours a day in that endeavor. On June 8 Morao phoned Freeman to tell him that he had returned from South America and to ask Freeman to recommend an attorney to represent Theresa Costa on an immigration problem, which Freeman subsequently did. On June 10 Morao brought a gift from South America to Freeman at his home, where they discussed the possibility of Morao’s supplying a large quantity of shishkebab for the opening of Freeman’s nightclubs —a plan which, after some further conversations, ultimately fell through.

The first item of evidence relied on by the district court to implicate Freeman in the 1973 importation conspiracy was the testimony of Mark Etra. Etra first met Freeman in September 1971 at the latter’s Greenwich Village home where Freeman was attempting to sell him audio equipment. Etra, an importer of cocaine, brought with him some which they used. Freeman said he would be interested in obtaining large quantities of cocaine if Etra could deliver it to him on a fairly regular basis. Etra said that might be possible, but that he would have to talk to some other people about it; in response to a number of telephone requests from Freeman, Etra subsequently delivered a sample of approximately a gram. While there was then some further discussion of the possibility of procuring more cocaine, Freeman never pursued the matter, and no sale was ever arranged between the two. The Government makes no claim that there was any relationship between Etra and Morao or Rudge.

The second item relied on by the court concerned cocaine dealings between Freeman and Morao. Agent Silvestro testified to an admission by Freeman to an agent which is set forth in the margin. Ornitz testified that, over a year and a half before the spring of 1973, he and Freeman occasionally pooled their funds to purchase from Morao small quantities of cocaine for their own use — totalling at most a quarter of an ounce. Ornitz also said that a year to a year and a half prior to June 1973, Freeman at his request obtained an ounce of cocaine from Morao, which they turned over to a friend of Ornitz’ at cost. Freeman conceded that he knew Morao dealt in cocaine.

Connecting the two items, the judge found that Freeman met Morao at about the time of his conversation with Etra and that “Morao became Freeman’s regular source of supply.” If this was meant to imply that this testimony was sufficient to justify beyond a reasonable doubt a conclusion that Freeman had cast Morao in the role of a large-scale supplier of cocaine which he had discussed with Etra, we think the evidence was well short of that mark. The testimony showed only that Freeman had at one time expressed an interest in large quantities of cocaine to a person having no connection with the conspiracy but had then done nothing about it; and that Freeman and Ornitz were users of cocaine, had acquaintances who also were, and had occasionally availed themselves of Morao to meet the needs of themselves and their friends — all in small quantities, without a profit motive, and at a time long prior to the conspiracy here charged. There is a wide gap between this and the showing required by our decisions that, in order to hold a man for joining others in a conspiracy, he “must in some sense promote their venture himself, make it his own,” United States v. Falcone, 109 F.2d 579, 581 (2 Cir.) (L. Hand, J.), aff’d, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940).

In view of the negligible, indeed almost non-existent, inferences that can be drawn from the evidence recited up to this point, any conclusion that Freeman was a member of the conspiracy during the operational phase must rest on the evidence about Freeman’s activities after Rudge’s arrest on June 13,1973.

While the testimony is conflicting, the court could permissibly have concluded that, in the early hours of June 14, Morao, Theresa Costa and Rosalys Rudner came to Freeman’s apartment, although Freeman did not see them until he arrived from the night club later in the morning; that on June 16 Freeman, as a favor to Morao, went to the Hotel Albert, paid some money on Morao’s and Costa’s bill, and retrieved some of the photographic equipment and luggage; and that upon request Freeman arranged for a barber, who was a friend of his, to come to his apartment and cut Rudner’s hair. There was also testimony by one David Duffy that on June 16, while at Freeman’s apartment, he and Morao discussed getting Rudner into Canada via Vermont, a conversation which there is no evidence that Freeman heard; that one or the other of them asked Freeman if he had any maps of that area; and that Freeman tossed over a plastic travel pack containing “a whole lot of maps in there, one of which was New England.” Rudner, who had registered at the Paramount Hotel late on June 13 after reporting Tombini’s disappearance to Rudge and before she had learned of Rudge’s arrest, was unwilling to flee to Canada without the two bags in which, at Rudge’s suggestion, she had repacked her personal belongings and which had remained at the Paramount. She had not returned to the hotel after her arrival at Freeman’s apartment, for fear of surveillance, and it was thought unwise for her to do so. Morao enlisted Freeman in the enterprise of retrieving the bags.

Around midday on June 18, Freeman called the hotel and told the assistant manager that Rudner’s baggage was in her room but that she could not return for it. On being informed by a bellboy that government agents were watching to see if anyone picked up the bags, the assistant manager advised that they were in the checkroom and that in order to get them it would be necessary to pay the bill. Freeman said this would be no problem. Later in the afternoon, Freeman’s friend Ornitz came by the Hotel Diplomat accompanied by one John Spencer Davis; Ornitz had told Davis that if they dropped in on Freeman, they “might be able to get a blow of coke.” After a private talk between Freeman and Ornitz, Freeman had a brief conversation with Davis. Freeman explained “there is this chick who is hot and she is a cocaine smuggler and her bags are at the Hotel Paramount, which is four blocks away.” Freeman asked Davis whether he would pick up the bags; when Davis inquired how anyone could smuggle cocaine these days, Freeman answered that Rudner was a photography student and had a lot of equipment. There was a rather rambling discussion of the compensation for Davis’ services, which might be a small amount of money, a share of the small amount of cocaine which Freeman thought to be in the bags, or both. Freeman gave Davis $60 in cash to pay the hotel and warned that, if arrested, Davis was not to mention Freeman “because of the people I know and a thing like this they can follow up, my friends and me, and they can find Rosalys Rudner and we are about ready to get her out of town.” Instead, Davis was to say he met a man in the Hotel Diplomat who had offered him $100, which Davis needed, to pick up the suitcases.

As might be expected, while he was leaving the Paramount Hotel with the bags, Davis was arrested. He told the customs agents everything he knew and led them to Freeman at the Hotel Diplomat. Freeman, who had been alerted by Ornitz, refused to accept the bags. Having obtained access to a telephone, he called Morao at the Greenwich Village apartment and spoke the single word, “split”. Apparently the advice was heeded. After a call that night from Costa in the course of which Freeman told her she need not bother to call or contact him any more, both Morao and Costa left the country. The next day, Freeman was arrested.

It is clear beyond peradventure that the evidence would have warranted conviction of Freeman as an accessory after the fact under 18 U.S.C. § 3, if the indictment had included a count to that effect. But the mere fact that a person “receives, relieves, comforts or assists” one who has been a member of an aborted or completed conspiracy does not make him a participant in the conspiracy or liable for substantive crimes commited during the pendency of the conspiracy, see Bollenbach v. United States, 326 U.S. 607, 610-611, 66 S.Ct. 402, 90 L.Ed. 350 (1946); Levine v. United States, 383 U.S. 265, 86 S.Ct. 925, 15 L.Ed.2d 737 (1966); Cleaver v. United States, 238 F.2d 766, 770 (10 Cir. 1956); Roberts v. United States, 416 F.2d 1212, 1220-1221 (5 Cir. 1969). To be sure, the indictment alleged that

It was further a part of said conspiracy that the defendants would conceal the existence of the conspiracy and would take steps designed to prevent disclosure of their activities.

But we read Grunewald v. United States, 353 U.S. 391, 401-406, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), as forbidding us to hold Freeman guilty of the narcotics conspiracy here charged simply because he became a party to an effort to conceal several of the conspirators after the initial scheme had miscarried. As Mr. Justice Harlan warned in Grünewald, an express agreement to conceal cannot be implied “from elements which will be present in virtually every conspiracy case, that is, secrecy, plus overt acts of concealment,” 353 U.S. at 404, 77 S.Ct. 963. “[T]he essential missing elements,” the Justice added, “is a showing that the act [here, concealing the principals] was done in furtherance of a prior criminal agreement among the conspirators,” id. at 404 n. 16, 77 S.Ct. at 973.

That does not mean, however, that a person’s efforts to assist in the concealment of a conspiracy may not be such as to support an inference that he had joined it while it was still in operation. If there had been even slight evidence of other sorts that Freeman was a participant in the plan to import the five pounds of cocaine from South America, his lodging of Morao, Costa and Rudner in his apartment, the favors rendered during their visit, his obviously dangerous effort to retrieve Rudner’s luggage, his telephone warning to “split,” and his later talk with Costa would bring the case within such decisions as United States v. White, 124 F.2d 181, 185 (2 Cir. 1941); United States v. Monica, 295 F.2d 400, 401 (2 Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962), and United States v. Frank, 494 F.2d 145, 152 (2 Cir. 1974), slip opinions 1883, 1895, which emphasize that the Government’s evidence must be taken as a whole and that each relevant fact tending toward guilt gains color from each other. But here, as it seems to us, there was no really pertinent evidence of guilt other than Freeman’s efforts after the conspiracy had failed. One can speculate, of course, that mere friendship with Morao and gratitude for an occasional sale of small amounts of cocaine would not lead anyone into a course of criminal conduct so far beyond anything that these relations could fairly be thought to inspire, and that Freeman’s actions after June 13 thus are explicable only on the theory that he was playing a part in an endeav- or he had been engaged in from the outset. But the mores of the world where Freeman lived are not those of judges or clergymen, and the inference that his criminal activity was that of an accessory after the fact, and nothing more, is far more compelling than the inference that he was a prior participant.

This may be the rare ease where the raising of the standard of review effected by our decision in United States v. Taylor, supra, 464 F.2d 240, leads to a different result than would have obtained under the principle there overruled. Although the case is close, we have no real question that if this had been a jury trial, we would have held it was error for the judge to submit it to the jury on the basis that “a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” Here we face the difficulty that a most reasonably minded judge, for whom we entertain the greatest respect, with the advantage of seeing and hearing Freeman and the other witnesses, has reached just that conclusion. But the standard of review cannot differ simply because there has been a bench rather than a jury trial; we are bound to apply it to a judge’s determination of guilt exactly as we would to his decision to permit the case to go to the jury.

The judgment is reversed with instructions to dismiss the indictment as against Freeman.

      . So is George Morao, a defendant in a separate indictment, who figures prominently in this ease.

      . Cross-examination developed some question as to who had taken the initiative.

      . “He [Freeman] said, however, that in the past, primarily for business reasons, he had purchased small amounts of cocaine from Mr. Morao and had himself sold or transacted small amounts of cocaine as merely a business accommodation in the line of work, in the music and nightclub industry, and some of this cocaine was cocaine that he had gotten from Mr. Morao.”

      . Counsel for Freeman contends, with considerable force, that a much more reasonable version is that Morao and Costa came only-on June 15 and that it was not until the early morning of June 16 that Freeman gave permission for Rudner to come.

      . Duffy testified that Freeman was spending “close to 90 percent of the- time he was there ... on the telephone”, and that he “had about 17 telephones” !

      . In all of this we follow the testimony of Davis, which is the most favorable to the Government, rather than that of Ornitz or Freeman.

      . The Government seems to suggest that this somehow links Freeman with Tombini and Rudge, both of whom knew of Rudner’s photographic interests. But there was no evidence that Freeman had ever seen either, and it is much more reasonable to suppose that he acquired the information from Morao who was also a photographer and known to Freeman to be such, or, by translation on the part of Morao or Costa, from Rudner herself.

      . The agents found 3.5 grams of cocaine and some cocoa leaves in the bags, concededly not a part of the shipment sought to be imported on June 13.

      . Since Freeman was obviously aware that he was sheltering at least one person (Rudner) who was guilty of importing cocaine, the evidence of various false statements made by him after his arrest and the consequent inference of consciousness of guilt, see United States v. Smolin, 182 F.2d 782, 785-786 (2 Cir. 1950), are not probative of Freeman’s participation in the conspiracy.

      . Of course, where the act of concealment is done in furtherance of the main criminal objectives of the conspiracy, the initial agreement can fairly be said to include the concealment phase, see Ingram v. United States, 360 U.S. 672, 679 n. 10, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); Forman v. United States, 361 U.S. 416, 422-424, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); United States v. Franzese, 392 F.2d 954, 963-964 (2 Cir. 1968), vacated on other grounds 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); United States v. DeSapio, 435 F.2d 272, 283-284 (2 Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971); United States v. Colasurdo, 453 F.2d 585, 591-593 (2 Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972).

      . Tlie case would stand differently if Freeman’s post-June 13 acts were serious independent crimes, e. g., if he had assaulted the agents who had retrieved Rudner’s bags.


source: Caselaw Access Project

author: BARNES, Senior Circuit Judge: BROWNING, Circuit Judge CHOY, Circuit Judge HUFSTEDLER, Circuit Judge,

license: Public Domain

text:
    Jackie HARRIS, Plaintiff-Appellee, v. Raymond K. PROCUNIER, Director of the Department of Corrections of the State of California, Defendant-Appellant.
    No. 72-1347.
    United States Court of Appeals, Ninth Circuit.
    May 22, 1974.
    Certiorari Denied Oct. 29, 1974.
    See 95 S.Ct. 235.

      Russell Iungerich, Deputy Atty. Gen. (argued), Alan G. - Novodor, Deputy Atty. Gen., Los Angeles, Cal., for defendant-appellant.
    Carson Taylor (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before the Court En Bank: CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTED-LER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges, and BARNES, Senior Circuit Judge.
   OPINION

BARNES, Senior Circuit Judge:

The State of California (herein the State) appeals from the decision of the district court to grant a petition for writ of habeas corpus to appellee, Jackie Harris. In 1940, at the age of 14, Harris was charged with murder in a state court. The Juvenile Court had exclusive jurisdiction over him and conducted a hearing to examine Harris and determine whether he should be tried as an adult. Harris was not represented by counsel at that time, and there is no indication that he was informed of his right to same. The Juvenile Court found Harris to be unfit for juvenile proceedings and waived its jurisdiction. An information was subsequently filed against him in Superior Court; counsel was appointed for him and he entered a plea of guilty. He was placed in a state hospital as a sexual psychopath, and remained there for six years. After his release he was sentenced to life imprisonment.

In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Supreme Court held that a determination by a juvenile court on the issue of whether it should waive jurisdiction over a juvenile is a critical stage in a criminal proceeding. It therefore requires a hearing conforming to the basic requirements of due process, including assistance of counsel. Harris filed a petition for writ of habeas corpus in state court arguing that Kent should be given retroactive effect. The Supreme Court for the State of California denied the petition holding that retroactive application of Kent would seriously disrupt the administration of justice, citing Johnson v. New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). In re Harris, 67 Cal.2d 876, 64 Cal.Rptr. 319, 434 P.2d 615 (1967).

Subsequent to the filing of his petition in the United States district court, but before that court entered its order granting the petition, this Court filed its opinion in Powell v. Hocker, 453 F.2d 652 (9th Cir. 1971) (No. 71-1118, before Chambers, Choy and Muecke, JJ.), holding that Kent is to be given retroactive effect. Powell held that since Harris was not represented by counsel at the hearing before the Juvenile Court in 1940, Kent necessitates a ruling that that hearing was invalid. If the hearing is held invalid, the Superior Court did not have jurisdiction to entertain Harris’s plea of guilty.- Harris would be released from custody and the matter remanded back to the juvenile court, which would no longer have custody jurisdiction over him because he is over 18 years of age. (He should now be 47 years of age.)

The State argues that Powell should be overruled on the basis of Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), and seeks a hearing en banc. In Adams the Supreme Court held that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), is not to be given retroactive effect. Coleman stands for the proposition that an accused is constitutionally entitled to the presence of counsel at a preliminary hearing. It is the State’s position that a preliminary hearing for an adult (Coleman) is no less important a stage in the criminal proceedings than a certification hearing for a juvenile (Kent).

RETROACTIVITY:

The retroactivity of a rule concerning constitutional claims in criminal litigation turns, in a practical sense, on the exigencies of the situation. Stovall v. Denno, 388 U.S. 293, 296-297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). And “ . . . the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved.” Johnson, supra, at 728. In analyzing such a problem, three criteria are to be considered: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall, supra, at 297.

“Foremost among these factors is the purpose to be served by the new constitutional rule,” Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). The new constitutional rule enunciated in Kent was to insure that juveniles in certification proceedings were provided a full hearing and the right to counsel. Rules concerning the right to counsel have often been applied retroactively: Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), concerning a criminal defendant’s right to counsel at time of trial; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), right to counsel at time of arraignment; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), right to counsel at time of appeal; and McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968), making the right to counsel at sentencing retroactive as granted in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). For a complete list see Williams v. United States, 401 U.S. 646, 653 fn. 6, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). In distinguishing the right to counsel eases which require retroactive application from all other cases where retroactive application has been generally denied, the Supreme Court stated the following:

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” (Footnotes omitted.) Williams v. United States, supra, at 653.

The question is therefore whether the purpose of Kent was to “overcome an aspect of the criminal trial that substantially impairs its truth-finding function”? We hold that it was not. First, a certification hearing is not a trial, but a hearing. Juvenile proceedings are not intended to be adversarial. Second, the function of a certification hearing is not to gather facts for the purpose of conducting criminal proceedings against the juvenile, but to determine whether it would be proper for the juvenile court to continue to assert jurisdiction over the juvenile. While we in no way discount the thrust of Kent to provide due process guarantees at the certification hearing, we do not see that it is the type of constitutional rule which is directed at, or in any way impairs, the truth-finding function.

With respect to the second criterion (the extent of reliance by law enforcement authorities on the old standards), we simply note that Harris’s certification hearing occurred in 1940, while the rule in Kent was not made until 1966. We find this fact, in and of itself, sufficient factual proof that the law enforcement authorities have relied on the old rule for a period which meets the second criterion.

The third criterion, the effect on the administration of justice of a retroactive application of the new standards, would be devastating. In re Harris, supra, 64 Cal.Rptr. at 321-322. 434 P.2d at 617-618. The number of cases affected would be significant, and there would be numerous instances where the juvenile courts would no longer have jurisdiction over the person of the defendant by reason of age. Cf. Brumley v. Charles R. Denney Juvenile Center, 77 Wash.2d 702, 466 P.2d 481 (1970), wherein the Supreme Court of Washington declined to apply Kent retroactively; Bouge v. Reed, 254 Or. 418, 459 P.2d 869 (1969), wherein the Supreme Court of Oregon refused to apply Kent retroactively; and Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133 (1969) cert. denied, 397 U.S. 977, 90 S.Ct. 1098, 25 L.Ed.2d 272 (1960), wherein the Court of Appeals for the District of Columbia declined to apply Kent retroactively.

Perhaps even more importantly, the plaintiff-appellee is confined by reason of his own guilty plea in an adult court with all constitutional safeguards present. He thus has waived the failure of the state to provide counsel at the time of his juvenile court appearance. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Sanders v. Craven, 488 F.2d 478 (9th Cir. 1973); Mann v. Smith, 488 F.2d 245 (9th Cir. 1973); Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965) cert. denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550 (1966).

For these reasons, we overrule Powell v. Hocker, supra, on the issue of retroactivity, and remand the action to the district court with instructions to dismiss the petition for writ of habeas corpus.

CHAMBERS, MERRILL, KOELSCH, DUNIWAY, EUGENE A. WRIGHT, TRASK, ALFRED T. GOODWIN, WALLACE and SNEED, Circuit Judges, concur.

BROWNING, Circuit Judge

(concurring) :

I concur in the reversal of the judgment essentially for the reasons stated by Chief Judge Bazelon in his opinion in Mordecai v. United States, 421 F.2d 1133 (1969). As Judge Bazelon said of Mordecai, “appellant presents a forceful claim that the absence of counsel . at the time of his waiver must seriously undermine our confidence in the reliability of the process that led to his trial in an adult court,” but “[e]ven if nonpunitive rehabilitation in the juvenile process would have been the proper path in [1940], society can no longer offer what was then, rightly or wrongly, denied.” 421 F.2d at 1138.

The solution offered in' dissent only highlights the problem. The dissent recognizes that a person of Harris’s age (48) would not now be a fit and proper subject for juvenile court treatment. The alternative, it is suggested, is “a new trial in adult court.” See page 585, infra (Hufstedler, J., dissenting). But Harris does not suggest that his adult court proceeding was in any way defective. The proposed remedy is wholly unrelated to the fault.

It is true that the same impossibility of affording a suitable remedy was present in Kent itself. See page 585, n. 7, infra (Hufstedler, J., dissenting). However, retroactive application to Kent was necessitated by the Article III limitation of the power of federal courts to the decision of “Cases” and “Controversies.” Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

CHOY, Circuit Judge

(concurring):

While I concur in the majority opinion as to Jackie Harris’ appeal, I feel it unnecessary that Powell v. Hocker, 453 F.2d 652 (9th Cir. 1971) be overruled in the process. The two cases are horses of different colors.

True, the juvenile offenders in both Powell and Harris were without counsel at their respective state certification proceedings, but the similarities between the cases end there.

Retroactivity of Kent

In Harris the California juvenile court did conduct a hearing in accordance with state statute before determining that Harris should be tried as an adult. Ante at page 577. • But in Powell, certification for adult trial was admittedly made without any semblance of the “full investigation” mandated by the Nevada statute. Powell v. Sheriff, Clark County, 85 Nev. 684, 687, 462 P.2d 756, 758 (1969).

In Harris, the California Supreme Court expressly found that retroactive application of Kent would be devastating as to California. 67 Cal.2d at 879, 64 Cal.Rptr. at 321-322, 434 P.2d at 617-618. The record in Powell contains no similar finding as to Nevada and the briefs contain no such claim.

Harris’ certification hearing occurred in 1940, twenty-six years before Kent was pronounced. Powell’s non-hearing was in 1966, three weeks after Kent.

While the three criteria of Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) negate retroactivity of Kent as applied by my Brother Barnes in Harris, those tests do not compel the same result in Powell because of the factual differences between the two cases above set forth.

Waiver by Guilty Plea

We held in Powell, 453 F.2d at 656, that the failure of the Nevada juvenile court to comply with the Nevada statute in certifying the juvenile for trial as an adult, conferred no jurisdiction over Powell in the adult criminal court. We also quoted from a prior holding of this court, Thomas v. United States, 290 F.2d 696, 697 (9th Cir. 1961) that: “When a defendant voluntarily and knowingly pleads guilty at his trial this constitutes a waiver of all nonjurisdictional defenses . . .” (emphasis supplied).

In Harris there having been compliance with the California hearing statute before the certification of Harris for adult trial, the superior court thereby acquired jurisdiction over the juvenile. Harris’ subsequent guilty plea with advice and aid of counsel may thus be held to have waived failure of the state to provide him counsel in the juvenile court proceeding. But in Powell, the adult criminal court acquired no jurisdiction over the juvenile and so Powell’s guilty plea waived nothing- — the court could not even accept the plea.

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) which held that a guilty plea waives the claim of deprivation of petitioner’s constitutional right because Negroes were excluded from the grand jury which indicted him, does not apply to Powell, but does to Harris. Likewise as to the Brady trilogy all of which held that a guilty plea waives certain constitutional defects; and likewise also as to the three cases of this court cited with Tollett in the majority opinion. In none of those cases was there lack of jurisdiction in the court accepting the plea of guilty.

HUFSTEDLER, Circuit Judge,

dissenting, with whom Judge ELY concurs:

At a hearing in which he was denied the assistance of counsel, Harris was found not to be a fit and proper subject for juvenile proceedings. (See Calif. Welfare & Institutions Code § 707.) The juvenile court thereupon waived its jurisdiction in order to permit an information to be filed in the Superior Court charging Harris with murder. Subsequent to Harris’s conviction and sentence to life imprisonment, the Supreme Court held, with respect to a comparable waiver of jurisdiction by the District of Columbia juvenile court, that “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons.” (Kent v. United States (1966) 383 U.S.

541, 554, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84, accord, In re Gault (1967) 387 U.S. 1, 30, 87 S.Ct. 1428, 18 L.Ed.2d 527.) Nevertheless, the majority refuses to recognize Harris’s right to counsel at the fitness hearing, holding that Kent is not to be given retroactive application. In so holding, the majority misconceives both the unique nature of the fitness hearing and the critical role that counsel can play at those hearings.

The fitness hearing has no direct counterpart in the usual adult criminal process. The purpose of the proceeding, unlike an indictment or preliminary hearing, is not to establish probable cause for the initiation of further action. The hearing is designed to determine, based on an evaluation of the youth, his background, and his criminal history, the nature of response the state should make upon a determination of guilt. Thus, to the extent that it can be analogized to a stage in the criminal prosecution, the fitness hearing most nearly resembles a sentencing proceeding by the trial judge. (Kemplen v. Maryland (4th Cir. 1970) 428 F.2d 169, 174; see Donald L. v. Superior Court (1972) 7 Cal.3d 592, 596-598, 102 Cal. Rptr. 850, 498 P.2d 1098.) By finding that a youth is not a fit subject for exercise of juvenile court jurisdiction, the court determines that the accused, if found guilty, will be sentenced as an adult rather than receive non-punitive rehabilitation pursuant to the options available to the juvenile court under the Welfare and Institutions Code. (See Kent v. United States, supra, 383 U.S. at 556-557.)

As early as 1948 the Supreme Court held that the absence of counsel during the dispositional phase of the criminal process, together with “assumptions concerning [the accused’s] criminal record which were materially untrue,” deprived the accused of his constitutional rights. “In this case, counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner.” (Townsend v. Burke (1948) 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690.) In Mempa v. Rhay (1967) 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the Court made it clear that the right to counsel applied to all dispositional proceedings, even those that were not formally part of the “sentencing” hearing before the trial judge immediately after a finding of guilt. Although the Court acknowledged that there might be “fewer opportunities for the exercise of judicial discretion” in such non-traditional dispositional hearings, it nonetheless held that “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.” (Id. at 135.)

The Supreme Court has recognized that the need for counsel to marshal facts and introduce evidence of mitigating circumstances when dispositional determinations are being made is equally great in juvenile proceedings: “[I]n all cases children need advocates to speak for them and guard their interests, particularly when disposition decisions are made. It is the disposition stage at which the opportunity arises to offer individualized treatment plans and in which the danger inheres that the court’s coercive power will be applied without adequate knowledge of the circumstances.” (In re Gault, supra at 38-39 n. 65 (quoting from Report by the President’s Comm’n on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society); see Kent v. United States, supra, at 561-563; Mordecai v. United States (1969) 137 U.S.App.D.C. 198, 421 F.2d 1133, 1135-1136: “Experience demonstrates that the youth and his parents— when they are available — cannot be counted upon to present the case for juvenile treatment incisively and intelligently. Within our judicial system, we consistently rely upon counsel to marshal facts, present arguments, and explore alternatives. . . . The waiver hearing certainly calls as loudly for the ‘guiding hand’ of counsel as does the sentencing hearing.”)

The need for counsel at dispositional hearings has been found by the Supreme Court to be so compelling that it has held the right to counsel recognized in Mempa fully retroactive. In McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2, the Supreme Court held that, as in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel at trial) and Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (right to counsel on appeal), the right to counsel at dispositional proceedings “relates to ‘the very integrity of the fact-finding process.’ ” (393 U.S. at 3.) The majority fails to distinguish the role of counsel at sentencing proceedings, held to be so vital to the integrity of the criminal process in Mempa and McConnell, from the function that an attorney can perform at the proceedings to determine amenability to juvenile treatment at issue in Kent and the ease at bench. Accordingly, I cannot agree with the majority’s conclusion that because the juvenile fitness hearing is not a trial and its function is not to gather facts for the criminal guilt determination process — characterizations that are, of course, equally applicable to the dispositional proceedings in Mempa, and McConnell — the purpose of the constitutional rule announced in Kent and Gault does not require retroactive application. (See Mordecai v. United States, supra at 1136.)

Analyzing the fitness hearing as analogous to a sentencing proceeding in the usual criminal process, however, does not fully capture the unique nature of the decision as to the amenability of a minor to treatment by the juvenile court. In many ways, the youth of a juvenile offender is a defense to the offense charged, similar to a plea of diminished responsibility. (See Kemplen v. Maryland, supra at 175.) The hearing which determines his fitness for treatment is the only stage at which a juvenile has an opportunity to assert this “defense,” and is thus comparable to the arraignment proceeding considered in Hamilton v. Alabama (1961) 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, which provided an accused the only opportunity he had to plead the defense of insanity. The right to counsel at a proceeding at which an accused must assert a defense or lose its benefit has also been found to relate to the “very integrity of the fact-finding process” and held fully retroactive. (See Arsenault v. Massachusetts (1968) 393 U.S. 5, 6, 89 S.Ct. 35, 21 L.Ed.2d 5; Stovall v. Denno (1967) 388 U.S. 293, 297-298, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)

The majority acknowledges, as it must, that the purpose served by a new constitutional ruling is the primary factor in determining the rule’s retroactivity. (Desist v. United States (1969) 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248.) Whether one focuses on the dis-positional effect of the fitness hearing (and the close analogy to Mempa v. Rhay) or on its impact on a juvenile’s “youth defense” (and the similarity to Hamilton v. Alabama), the purpose served by the right to counsel in this context argues strongly for the retroactive application of Kent and Gault. The majority opinion makes no attempt to distinguish the reasoning of the Supreme Court in Mempa and Hamilton and the decisions holding fully retroactive the right to counsel established in those cases. I do not believe that any such distinction can be made. Nor do the other two factors of the Stovall test preclude a finding of retroactivity; for, as the Supreme Court has repeatedly emphasized, when the purpose of a new constitutional right relates to the fundamental fairness of the criminal process —as it does at sentencing hearings, arraignment proceedings where unpleaded defenses are lost, and juvenile fitness hearings — “[n] either good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application . . . . ” (Ivan V. v. City of New York (1972) 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659; accord, Williams v. United States (1971) 401 U.S. 646, 653, 91 S.Ct. 1148, 28 L.Ed.2d 388 (plurality opinion by White, J.); Adams v. Illinois (1972) 405 U.S. 278, 280, 92 S.Ct. 916, 31 L.Ed.2d 202 (plurality opinion by Brennan, J.). See also Roberts v. Russell (1968) 392 U.S. 293, 295, 88 S.Ct. 1921, 20 L.Ed.2d 1100.)

Even if the impact of retroactivity upon the administration of justice were relevant, however, the majority has failed to demonstrate that full retroactivity would have a significant adverse effect. Judicial opinion as to the number of cases that would be affected is in conflict. (Compare, e. g., Mordecai v. United States, supra, 421 F.2d at 1138 (“improbable that vast numbers of young offenders waived without a hearing or representation by counsel are still in custody”) with, e. g., In re Harris, supra, 67 Cal.2d at 879, 64 Cal.Rptr. at 321, 434 P.2d at 617 (“Judgments of conviction entered following waiver of juvenile court jurisdiction and final before Gault was decided ‘ “threaten to be of significant quantity.”’”).) The statistics submitted by the state indicate that as of December 1971 there were slightly more than 300 defendants who had been committed to the custody of the Adult Authority at age 18 or younger between 1945 and the date of Gault who were still in prison or on parole. However, this figure is much larger than the actual number of cases that would be affected by holding Kent retroactive.

The state’s figure includes youths committed at age 18, who may never have been within the jurisdiction of the juvenile court and thus not subject to a fitness hearing. (See Calif.Welfare & Institutions Code §§ 602-604 (juvenile court’s jurisdiction extends only to defendants under 18 at the time of alleged offense).) The state’s statistics also fail to exclude those prisoners and parolees who were represented by counsel at their fitness hearings. The 1961 revision of juvenile court law established a general right to counsel at juvenile hearings (see 1961 Calif.Stats., ch. 1616, § 2, art. 8, as amended Calif.Welfare & Institutions Code §§ 679, 700); hence, the number of offenders who were represented by counsel is potentially quite large. In addition, the number of cases that would be affected probably has been further reduced by termination of parole or unconditional release during the nearly 2yz years since these data were compiled. Thus, the actual number of cases that would be affected by a finding of retroactivity could be as small as % or even %o of the number suggested by the state. Even if nearly 300 cases in California could be affected by holding Kent and Gault retroactive, however, this is still a far cry from the potential for “devastating” impact on the administration of criminal justice that the Court has found in those instances in which it has relied on this factor in determining that a new standard should not be applied retroactively. (E. g., DeStafano v. Woods (1968) 392 U.S. 631, 634, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (all convictions for serious crimes in certain states; all non-capital cases in another); Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 418, 86 S.Ct. 459, 15 L.Ed.2d 453 (every single trial in which defendant took the stand in six states, including California).)

Neither is there any validity to the argument made by the majority that “there would be numerous instances where the juvenile courts would no longer have jurisdiction over the person of the defendant by reason of age.” Juvenile court jurisdiction in California is restricted only by the age of the defendant at the time of the offense: “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime ... is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” (Calif.Welfaré & Institutions Code § 602. See also id. §§ 603, 604.) If the absence of counsel at the preGault fitness hearing were held to invalidate the subsequent conviction, proceedings could again be initiated in the juvenile court — assuming that retrial was felt to be necessary for public safety. Presumably defendants like Harris who are substantially older than 18 could now properly be found not fit and proper subjects for juvenile court treatment and a new trial in adult court would then be appropriate. Thus, the passage of time has not made an appropriate remedy any more inconvenient or impracticable than in any other retraoctivity case.

Even if California were not a jurisdiction in which retrial within juvenile court jurisdiction was possible, the argument premised on the lack of such jurisdiction would not be persuasive on the issue of retroactivity. The same jurisdictional difficulty inheres in applying retroactively any constitutional ruling that relates to juvenile court procedures. Yet in Ivan V. v. City of New York, supra, the only juvenile procedure retroactivity case it has considered, the Supreme Court did not hesitate to make fully retroactive its decision in In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, concerning the standard of proof in juvenile proceedings. Moreover, in Kent itself the Supreme Court was faced with the identical problem. The Court recognized that “[i]f on remand the decision were against waiver [of juvenile court jurisdiction], the indictment in the District Court would be dismissed. However, petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him.” (383 U.S. at 564; citation omitted.) Nevertheless, the Court accepted the fact that this might be the result of application of the new right to counsel to a fitness hearing held before Kent and remanded the case to the district court for a hearing de novo on waiver with directions to dismiss the indictment if waiver was found to be improper. (Id. at 565.) In light of the Supreme Court’s acceptance in Kent and Ivan V. of the possibility that juvenile defendants benefiting from a new constitutional standard might not be retriable, we cannot hold that the potential impact of the identical consequences would be so great as to outweigh the purpose served by the counsel requirement and thus preclude retroactive application of that requirement.

In sum, because of the similarity to the right to counsel at sentencing proceedings and certain types of arraignment hearings, the constitutional requirement of counsel at juvenile fitness hearings established by Kent and Gault relates to the “very integrity of the fact-finding process.” When that is the purpose of a new constitutional rule, the rule is applied retroactively regardless of governmental reliance on the prior standard or impact of the new rule. Even if the effect of the new ruling were relevant, there has been no demonstration that retroactivity would have a significant effect on the administration of criminal justice. In accordance with the standards announced by the Supreme Court in Stovall v. Denno, supra, the counsel requirement of Kent and Gault should be held to be fully retroactive.

Apparently as an alternative basis for its decision, the majority also holds that even if Kent was retroactive, because of his guilty plea in Superior Court, Harris is not entitled to challenge the propriety of his juvenile fitness hearing. This holding is not supported by the Supreme Court’s recent decisions on the effect of entry of a guilty plea on appellate review of antecedent constitutional violations.

In Tollett v. Henderson (1973) 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, the Supreme Court said “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” But it is clear that the Court in Tollett (and in Brady v. United States (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, Parker v. North Carolina (1970) 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, and McMann v. Richardson (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763) was concerned with alleged constitutional defects in the process by which a defendant is apprehended and his guilt or innocence determined — that is, constitutional challenges to arrest, indictment, the admissibility of evidence, or the voluntariness of a confession. Once an effectively counseled defendant voluntarily and intelligently admits he violated the law, he can no longer object to anything done by the Government in bringing him through the guilt determination process. It is in this sense that “a guilty plea represents a break in the claim of events which has preceded it in the criminal process.” (411 U.S. at 267.) The juvenile fitness hearing, as I have already indicated, is primarily a dispositional proceeding. Although in this case it occurred chronologically prior to the entry of the guilty plea, the fitness hearing logically involves a post-guilty-plea determination of the appropriateness of various forms of treatment. Thus, the determination of Harris’s amenability to juvenile court process functionally succeeds the “break in the chain of events” to which Tollett refers.

This distinction between an alleged defect in the fitness hearing and the constitutional errors at issue in Tollett and the Brady trilogy is consistent with the rationale of the Supreme Court’s decisions. The danger of a trial based on an improper indictment, as alleged in Tollett, or on unconstitutionally obtained evidence, as in McMann, is that an innocent defendant will be convicted. Once the defendant waives his right to a trial and admits his guilt, that danger is obviated and there is no need to permit the defendant to attack antecedent constitutional violations. The error that Harris asserts, on the other hand, does not involve any element of the guilt determination process. The question is not whether Harris was guilty of an offense, but what disposition can be made. Whether or not the state was required to prove its case against Harris is completely irrelevant to his challenge to this dispositional determination. The danger that absence of counsel at the fitness hearing may have led the juvenile court to conclude erroneously that Harris should be treated as an adult offender is not cured by entry of a guilty plea. Indeed, entry of a plea highlights the importance of a correct determination of Harris’s amenability to treatment by juvenile process. Nothing in the reasoning of Tollett or the Brady trilogy suggests that this type of constitutional challenge is foreclosed by a guilty plea.

The impropriety of the majority’s rigid reading of Tollett is suggested by the Supreme Court’s decision to hear argument in Blackledge v. Perry, cert. granted Oct. 16, 1973, 414 U.S. 908, 94 S.Ct. 218, 38 L.Ed.2d 145. (Argument was heard on Feb. 19, 1974. See - U.S.-, 94 S.Ct. 2098, 40 L.Ed.2d 628, 42 U.S.L.W. 3482.) The Court must decide in Perry whether a guilty plea waives a defendant’s right to contest double jeopardy — a defect which obviously arises prior to entry of the guilty plea. If the Majority’s apparent assumption that Tollett precludes review of every alleged constitutional violation which occurred prior to entry of the guilty plea (except competency of counsel) were correct, plenary consideration of Perry would not be necessary. Instead, because the lower court decision to grant a writ of habeas corpus based on the double jeopardy argument was made before the Supreme Court’s decision in Tollett, the decision of the Fourth Circuit would have been vacated and the Court would have remanded for reconsideration in light of Tollett.

I would hold the right to counsel at juvenile fitness. hearings established by Kent v. United States retroactive and affirm the district court’s conditional grant of a writ of habeas corpus.

      . Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

      . Sanders v. Craven, 488 F.2d 478 (9th Cir. 1973); Mann v. Smith, 488 F.2d 245 (9th Cir. 1973); Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965), cert. denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550 (1966).

      . At the time of the Kent decision, there was some doubt that the requirement of counsel it announced was of constitutional dimension. The decision in Kent was based on a statute applicable to the District of Columbia, but the statute w'as “read in the context of constitutional principles relating to due process and the assistance of counsel.” (383 U.S. at 557.) In re Gault, holding inter alia that due process requires that a minor be represented by counsel in proceedings to determine delinquency that may result in commitment to an institution, clarified the Kent decision : “Just as in Kent ... we indicated . . . that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency. ...” (387 U.S. at 36.) The case at bench, accordingly, raises the question of the retroactivity of both Kent and portions of the decision in Gault.

      . The dispositional-sentencing nature of the fitness hearing is underscored by the fact that not until 1972 did the California Supreme Court hold that the hearing on the issue of amenability to juvenile treatment could precede decision of the “jurisdictional” issue of whether the minor had violated a criminal statute. (Donald L. v. Superior Court, supra.)

      . Because the juvenile court’s determination as to fitness is subject to review in subsequent proceedings (see People v. Yeager (1961) 55 Cal.2d 374, 389, 10 Cal.Rptr. 829, 359 P.2d 261; In re Harris (1967) 67 Cal.2d 876, 880, 64 Cal.Rptr. 319, 434 P.2d 615), the fitness hearing is not literally the only opportunity a defendant has to raise the youth “defense.” However, this possible “second chance” does not distinguish the fitness hearing from the arraignment proceeding considered in Hamilton; for in that case the defendant also had a second, limited opportunity to plead the insanity defense. (See 368 U.S. at 53.)

      . It should be noted that if the majority is correct in holding that entry of a guilty plea in Superior Court precludes a challenge to the denial of counsel at the juvenile fitness hearing, there would be a further significant reduction in the number of cases affected by holding Kent retroactive.

      . In any event, this consideration is obviously only relevant to those cases remanded for a new fitness determination in which it is concluded that the juvenile court should have retained jurisdiction.

      . If the defendant should now be determined to be amenable to treatment by juvenile process, the juvenile court would have jurisdiction to handle the case, regardless of the defendant’s present age. (Calif. Welfare & Institutions Code § 602.)

      . In Mordecai v. United States, supra, the court recognized that the purpose of the Kent rule would normally require its full retroactive application. The Mordecai court denied retroactivity, however, based on the possibility that an appropriate remedy — that is, retrial — would no longer be possible in individual cases. This balancing of the factors of purpose and impact on the criminal process is in conflict with the Supreme Court’s resolution of the issue in Kent. Accordingly, this aspect of Mordecai has little persuasive value.

      . It is possible that in Perry the Court will decide that double jeopardy is a jurisdictional defense and as such is not waived by entry of a guilty plea. (See, e. g. Briley v. Wilson (9th Cir. 1967) 376 F.2d 802, 803.) That decision would also control the case at bench; for, in the words of the majority, “ [i] f the hearing is held invalid, the Superi- or Court did not have jurisdiction to entertain Harris’s plea of guilty.” In other words, Harris is also raising a jurisdictional defect in his conviction.


author: PER CURIAM:

text:
    Jerome HAFTER, Appellant, v. Ruth FARKAS and Jonathan Farkas, Appellees.
    No. 828, Docket 73-2829.
    United States Court of Appeals, Second Circuit.
    Argued April 4, 1974.
    Decided May 31, 1974.

      Harry R. Schwartz, New York City, for appellant.
    Emanuele J. Sutera, New York City (Grubbs & Sutera, New York City, of counsel), for appellees.
    Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, District Judge.

       Senior United States District Judge for the District of Utah, sitting by designation.

   PER CURIAM:

In order to appreciate some of the more extraordinary aspects of this appeal, it is first necessary to recount chronologically the legal proceedings that have resulted in the waste of this court’s time, a waste solely attributable to the unprofessional attitude and conduct of appellant’s counsel herein. We go to the length we do here, although the appeal involves only the sum of $1,034, because this case involves some important considerations in relation to attorneys’ obligations to their clients.

On May 3, 1973, a judgment was issued in favor of Jerome Hafter and against Ruth and Jonathan Farkas by the clerk of the United States District Court for the Southern District of New York as approved by Judge Levet in the sum of $1,034. This judgment was the result of a jury verdict in the same amount rendered after a two-day trial before Judge Levet; Hafter’s cause of action apparently sounded in tort with jurisdiction being based on diversity of citizenship of the parties. A notice of appeal was filed by Haft-er’s counsel, Harry R. Schwartz, Esq., but that appeal was not perfected and on July 2, 1973, Mr. Schwartz wrote a letter to the Farkas’ counsel requesting that a check be made out to him as attorney. Mr. Schwartz also stated that he was not proceeding with the appeal and enclosed a “satisfaction of judgment” form which he had himself executed. Although the record is not clear, sometime in early July of 1973, a draft in the sum of $1,070.00, which included interest to that date, was issued by the Farkas’ insurance company payable to Jerome Hafter and Mr. Schwartz as attorney. By letter of July 11, 1973, Mr. Schwartz returned this draft, which he referred to as a “check,” alleging that it should have been made out solely to him in accordance with his letter of July 2, 1973. Another draft payable to the same parties was sent to Mr. Schwartz on July 17, 1973, and this draft was likewise returned by Mr. Schwartz for the same reasons as stated in his letter of July 11, 1973. On July 19, 1973, after consultation with the judgment clerk in the Southern District and an official of the Judicial Conference of the State of New York, both of whom advised that the procedure followed by appellees was accepted practice, appellees’ attorney filed the satisfaction of judgment originally executed by Mr. Schwartz. Following the filing, Mr. Schwartz by letter continued to protest the manner in which the judgment had been satisfied. On August 30, 1973, he obtained, on what as far as we can tell was an ex parte basis, an order signed by a district judge, who had so far as appears no other connection with the case, which dedared the satisfaction of judgment null and void. Mr. Schwartz’ motion was apparently made pursuant to Fed.R.Civ.P. 69(a), and, as a proceeding supplementary to and in aid of judgment, might well have been referred to the judge who presided at trial.

In any event, after the entry of this order, Schwartz returned yet another draft which had been issued by appellees’ insuror on August 13, 1973. Appellees’ counsel came before Judge Levet with the problem by way of a motion made pursuant to Fed.R.Civ.P. 69(a), and on October 17, 1973, Judge Levet signed an order staying execution proceedings which Schwartz had initiated by application to the sheriff of New York County. After hearing both parties, Judge Levet granted appellees’ motion and ordered Schwartz to accept a certified cheek made out to Jerome Hafter and Schwartz as attorney in satisfaction of the judgment and to secure the vacation of the state execution. It is from this order, which is appealable by a party as a matter of right, see O’Keefe v. Landow, 289 F.2d 465 (2d Cir. 1961), that Schwartz, apparently without the knowledge of his client, Jerome Hafter, appeals. Schwartz conceded on oral argument that his client had not authorized him to ask or insist that the cheek in satisfaction be made out only to the attorney as Schwartz so insistently demanded.

Rule 69(a) establishes that the “procedure on execution, in proceedings supplementary to and in aid of a judgment . shall be in accordance with the practice and procedure of the state in the district court is held. ’’ Schwartz’ claim is that, under New York practice and procedure, he cannot be forced to accept in satisfaction of judgment a certified check payable to his client and himself as attorney, where he as attorney without authority asks for payment to himself. which

We start with a few basic premises. In New York, as elsewhere, in addition to his other duties and obligations, a lawyer is bound to conduct himself as a fiduciary or trustee occupying the highest position of trust and confidence, so that, in all his relations with his client, it is his duty to exercise and maintain the utmost good faith, honesty, integrity, fairness and fidelity. In re Trybom’s Estate, 168 Misc. 484, 6 N.Y.S.2d 29 (Surr.Ct.1938); Krohe v. Goldman, 167 Misc. 930, 4 N.Y.S.2d 851 (N.Y.C.Mun.Ct.1938). See In re Kelly, 23 N.Y.2d 368, 296 N.Y.S.2d 937, 244 N.E.2d 456 (1968). This fiduciary or trust relationship precludes the attorney from having personal interests antago nistic to those of the client or from obtaining personal advantage or profit out of the relationship without the knowledge or consent of the client. Broderick’s Case, 104 N.H. 175, 181 A.2d 647 (1962); In re Goldstein, 7 Terry 450, 85 A.2d 361 (Del.1951). Thus, merely the bringing of the instant appeal without disclosure to the client that he was doing so could well be deemed to constitute a breach of that relationship. See In re Babcock, 230 App.Div. 323, 243 N.Y.S. 489 (1930).

Upon the collection or receipt of property or funds for the benefit of the client it is the duty of the attorney to notify the client promptly and, absent some contrary understanding — here the attorney does not claim any — to pay or remit the same to the client less only proper fees and disbursements as soon as reasonably possible. In re Babcock, supra; In re Langfur, 227 App.Div. 468, 238 N.Y.S. 498 (1932). Money collected by an attorney and not paid over is ordinarily held as a trustee rather than as a debtor. In re Peltz, 23 App.Div.2d 173, 259 N.Y.S.2d 522 (1965); In re Powers, 235 App.Div. 382, 257 N.Y.S. 113 (1932); In re Babcock, supra. The funds cannot be used for the attorney’s own purposes. In re Simons, 211 App.Div. 659, 208 N.Y.S. 51 (1925).

In addition to these general principles, as set forth in New York case law, the New York Civil Practice Law and Rules (CPLR) expresses the will of the New York legislature in this area. Although no provision of the CPLR deals directly with the narrow question presented here —whether a certified check payable to the plaintiff and his attorney as attorney is sufficient to require the plaintiff to execute a satisfaction of judgment— CPLR § 5020, bearing on satisfaction-pieces, is quite relevant. That provision requires that a person entitled to enforce a judgment, including the attorney of record if within five years of the judgment’s being rendered, must execute a satisfaction piece when he receives satisfaction for the judgment. The Supplementary Practice Commentary to § 5020 states that it is

wiser whenever possible to have the satisfaction piece executed by the judgment creditor himself. The only thing the judgment debtor should ascertain is whether the creditor’s attorney has any lien on the proceeds. If the remotest doubt exists about that, the judgment debtor may reasonably insist that the satisfaction piece be executed by both creditor and attorney, or executed by one and endorsed with an approval by the other.

CPLR § 5020, Practice Commentary (McKinney’s Cum.Ann.Pocket Part 1973-1974, at 234-235). The Practice Commentary prior to the 1969 amendment to § 5020, an amendment irrelevant for our purposes, had stated that “the usual practice among attorneys is to have the client execute the satisfaction-piece.” CPLR § 5020, Practice Commentary (McKinney 1963). Thus, § 5020 and the commentary thereto indicate that, under New York law, the judgment is to be paid to the judgment creditor in the first instance, with the judgment debtor being responsible to ascertain whether the attorney of record might have any lien on the proceeds. If any doubt about a lien exists, the debtor is advised to protect himself by getting the signature of both the creditor and the attorney on the satisfaction piece. It would seem to follow that a judgment debtor can ensure that both the creditor and his attorney are made aware of the satisfaction by making that satisfaction payable jointly to them. The district judge below took judicial notice that “it is customary for defense counsel in this district to submit a check to plaintiff’s counsel payable to the attorney and the judgment-creditor-client.” We read this statement as the district court’s conclusion, based on New York practice and procedure, that the joint-payee check was a proper tender of satisfaction.

That Schwartz did not and has not followed commonly accepted practice seems clear from the record before us. He, rather than his client, made out and executed a satisfaction of judgment before satisfaction had even been tendered. His conduct since that initial departure from the usual practice has been summarized above and led to the district court’s finding that he had “by his own acts precluded plaintiff-judgment-creditor [Jerome Hafter] from obtaining payment of the amount of the verdict.” Schwartz’ reliance on Altenau v. Masterson, 161 Misc. 433, 292 N.Y.S. 299 (N.Y.C.Mun.Ct.1936), a case which, as far as we can tell, has never been cited subsequently by a state court, does not carry his point. In Altenau, the judgment debtor sought an order requiring the judgment creditor to accept in satisfaction of the judgment a check made out to both creditor and his attorney. The court, noting several procedural irregularities in the manner in which the judgment debtor had tendered the satisfaction, stated in dictum that “There is no provision in the Civil Practice Act or in the Municipal Court Code which sustains . . . making the check payable to both attorney and client.” As we have pointed out, the practice of having the judgment creditor rather than his attorney execute the satisfaction piece belies the validity of the Altenau dictum. The opinions of the governing tribunals, the Association of the Bar of the City of New York and the New York County Lawyers’ Association, whose members are fully aware of the commonly accepted practices observed by members of the bar, do not support the Altenau result. In one case, an attorney had received a $25 check payable to his client where the claim itself was at least five years old and the client could not be located after diligent effort. The opinion of the Committee stated that it would be professionally improper for the attorney to deposit those funds in his own account, noting without questioning the fact that the “state insurance department refuses to issue a check in any other form.” Opinions 157-58 (No. 296 Nov. 21, 1933). In another opinion handed down after Altenau, an attorney had recovered back wages on behalf of a group of New York City employees, which awards were less than the stipulated fees. Checks were made out to each “client or attorney,” a procedure unquestioned by the Committee, and the attorney was cautioned that, even on those facts, “money of a client or collected for the client coming into an attorney’s possession should be reported and accounted for promptly and should not under any circumstances be co-mingle [sic] with his own or be used by him.” Opinions 391 (No. 676 Feb. 28, 1945). These opinions, while they are not legal determinations, are persuasive evidence of long-standing practice within the New York bar. The Altenau court was certainly correct in saying that no law authorized such a practice then, nor does one now; the Altenau court could equally have said that no law prohibited such a practice, nor does one now.

In affirming the district court’s order below, we want to make clear to Schwartz and members of the bar generally that this court, in the exercise of our supervisory power over attorneys coming before us, and in light of our heavy caseloads, is less than pleased to entertain the petty complaints of attorneys — -particularly in apparent antagonism to their clients’ interests — which can only serve to increase the expense of litigation and the pressure on an overloaded system of justice. Since this appeal was concededly taken by counsel without the consent of his client, we want to remove any doubt that may exist as to whether Mr. Hafter may be personally charged with the costs of the appeal or the costs of the action below. He may not. Mr. Schwartz is directed personally to absorb such costs as his own actions have entailed and to comply with Judge Levet’s order posthaste.

Judgment affirmed, in accordance with opinion.

      . Under Canon 42 of the Canons of Professional Ethics, which were in effect in New York until the adoption of the Code of Professional Responsibility of the New York State Bar Association effective January 1, 1970, see New York Judiciary Law (App.) 77 (Cum.Ann.Pocket Part for 1973-74), the taking of an appeal by an attorney without the permission of his client was prohibited even though the attorney was willing to defray the costs of sucli an appeal. See The Association of the Bar of the City of New York & The New York County Lawyers’ Association, Opinions of the Committees on Professional Ethics 379 (1956) (No. 658 June 28, 1944) [hereinafter cited as Opinions], In'this case, Mr. Schwartz, not having informed his client of the actions taken by him in the court below or in this court, is effectively prosecuting an appeal the very nature of which his client would be unwilling to see prosecuted irrespective of the costs of such prosecution. Mr. Schwartz’ actions thus clearly are beyond the conduct thought to be unprofessional in No. 658.

      . Schwartz’ conduct here in never informing his client of the receipt of the first or subsequent checks would appear to be a clear violation of Disciplinary Rule 9-102(B) (1) of the Code of Professional Responsibility, Judiciary Law Appendix, which states that “A lawyer shall . . . [pjromptly notify a client of the receipt of his funds, securities, or other properties.” Schwartz makes no claim of inability, present or past, so to inform Mr. Ilafter, whose interest lie claims to represent on this appeal. See also ABA Canon 11.


author: GRANT, Senior' District Judge.

text:
    UNITED STATES of America, Petitioner-Appellee, v. Thomas E. JOYCE, Respondent-Appellant.
    No. 73-1323.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 24, 1973.
    Decided June 13, 1974.

      Anna R. Lavin, Thomas E. Joyce, Chicago, Ill., for respondent-appellant.

      Scott P. Crampton, Asst. Atty. Gen., William A. Whitledge, Atty., Tax Div., Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, Ill., for petitioner-appellee.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge; and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   GRANT, Senior' District Judge.

Appellant was held in contempt of court for failure to comply with an Internal Revenue summons which directed him, as a corporate official, to produce certain records and documents relating to the tax liability of Guernsey Excess Insurance Company, Ltd. (hereinafter “Guernsey”) for the years 1967 through 1969, inclusive. The essential issues raised by appellant in this appeal are as follows: (1) Whether plaintiffs acted within their statutory scope of power in issuing the Internal Revenue summons and whether the district court order holding appellant guilty of contempt was a proper use of the court’s power to enforce the summons; (2) whether criminal contempt will lie on the record under 18 U.S.C. § 401(3) in light of the court’s direction that appellant use his “best offices” to obtain the records requested by the Internal Revenue Service; and (3) whether appellant can be held in contempt for his failure to obtain the records through the activities and cooperation of third persons.

Appellant asserts, first of all, that the Internal Revenue summons was not issued within the statutory authority of the Internal Revenue Service, and therefore could not be enforced by the district court. The contention here is, in effect, that since the power to issue the summons was never demonstrated or justified by petitioners, the jurisdiction of the district court to enforce the summons was nonexistent, thus rendering its contempt order void and of no effect. In support of this position, appellant has noted that since Guernsey was a British Corporation and had written only reinsurance, excess, or surplus line insurance in the United States, it was, so appellant contends, exempt from taxation and did not have to file United States federal income tax returns.

It has been held in this regard that the Internal Revenue Service is given broad summons power under 26 U.S. C. § 7602. This power has been characterized as an inquisitorial one, and the government need only show that the records it seeks are relevant and material to its investigation of tax liability in order to justify their production. United States v. Turner, 480 F.2d 272, 278-279 (7th Cir. 1973). Further, this Circuit has indicated that a claim of exemption from federal taxes will not thwart a proper inquiry or the use of summonses by the Internal Revenue Service to seek information that is relevant to the determination of tax liability. United States v. Hayes, 408 F.2d 932, 936 (7th Cir. 1969).

We find, therefore, under the guidance of the above-cited authority, that the evidence has shown that the records and documents sought from appellant were relevant and material to the government’s investigation of the tax liability of Guernsey, and that therefore the summons issued by the Internal Revenue Service was indeed an authorized exercise of its power. Thus, it was within the district court’s jurisdiction to enforce the summons as issued. Accordingly, appellant’s attack upon the authority of the Internal Revenue Service to issue the summons and against the district court’s exercise of jurisdiction to enforce the summons is rejected as being totally without merit.

Appellant next argues that the district court’s order of June 2, 1972, enforcing the Internal Revenue summons, which in pertinent part directed appellant to use his “best offices” to obtain the requested records, lacked required legal specificity in that it failed to clearly and unequivocally define exactly how appellant was to proceed in obtaining the pertinent information which was being sought by the Internal Revenue Service in its investigation into Guernsey’s tax liability. Appellant contends that an order of the court containing such general and imprecise language will not serve to support a charge of contempt for disobedience under 18 U.S.C. § 401(3) for the reason that it is too vague to be understood and complied with. This, in effect, is the cornerstone upon which the present appeal to this Court rests.

A corollary argument that appellant presents for this Court’s consideration is that he was not adequately notified that the proceeding against him was one of criminal contempt pursuant to Rule 42(b), F.R.Cr.P. He contends that the government’s motion to have the court hold him in contempt did not describe the nature of the proceeding or the charges against him with the required specificity. He contends, in essence, that he was not aware that the proceeding against him was criminal in nature until the sentence which he labels “punitive” made it obvious to him that such was the case.

This Court agrees with appellant that the proceeding against him was in the nature of criminal contempt since the character and purpose of the punishment imposed was intended to penalize appellant for a past act — his failure to produce the requested records— rather than to coerce him to produce said records, and to castigate him for acting against the dignity and authority of the court. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Walling v. Crane, 158 F.2d 80, 83 (5th Cir. 1946). As such, Rule 42(b) requires that the notice of such a proceeding state “the essential facts constituting the criminal contempt charged and describe it as such.” Harris v. United States, 382 U.S. 162, 165-166, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965). Despite the way the Rule reads, however, it requires no rigorous application that the words “criminal contempt” be included in the petition and rule to show cause as long as the eontemnor realizes that a prosecution for criminal contempt is contemplated. United States v. Mine Workers, 330 U.S. 258, 297-298, 67 S.Ct. 677, 91 L.Ed. 884 (1947). This is especially so where there is no indication that the defendant was confused as to the nature of the proceeding and where he is accorded all procedural rights due defendants in criminal contempt proceedings. F. T. C. v. Gladstone, 450 F.2d 913, 916 (5th Cir. 1971). This Circuit has stated, moreover, that a defendant in a contempt proceeding need not be specifically warned or aware that his conduct could be visited with a criminal penalty as opposed to another sanction. United States v. Seale, 461 F.2d 345, 366 (7th Cir. 1972).

Upon examination of the record, it is evident that appellant was aware that the proceeding against him was criminal in nature. From the very beginning, the summons which was served on appellant indicated that his failure to comply would render him liable to punishment. During the numerous hearings that were held after appellant failed to produce the records, he was told many times that his conduct would result in his being “sent to jail”. Therefore, the omission of the word “criminal” in petitioner’s motion did not constitute reversible error. Furthermore, this Court perceives that the essential facts constituting the criminal contempt charge were adequately communicated to appellant by the government’s motion of October 3, 1972. Finally, we find that appellant was accorded full procedural due process and was not prejudiced by any alleged infirmity therein.

The district court’s order of June 2, 1972, nevertheless, presents quite another matter. As noted above, that order was designed to enforce the Internal Revenue summons. It required appellant to use “his best offices” to produce the books and records sought by the government. The crucial question here, of course, is whether the words “best offices” gave appellant sufficient direction as to how he was to proceed to try to obtain the records.

It is well established that before one may be punished for contempt for violating a court order, the terms of such order should be clear and specific, and leave no doubt or uncertainty in the minds of those to whom it is addressed. McFarland v. United States, 295 F. 648, 650 (7th Cir. 1923); United States v. DeParcq, 164 F.2d 124, 126 (7th Cir. 1947). Failure to take action required by an order can be punished only if the action is clearly, specifically, and unequivocally commanded by that order. United States v. Fleischman, 339 U.S. 349, 370-371, 70 S.Ct. 739, 94 L.Ed. 906 (1950). Stated another way, it appears to be settled law that contempt will not lie for violation of an order of the court unless the order is clear and decisive and contains no doubt about what it requires to be done. Finally, where there is ambiguity in the court’s direction, it precludes the essential finding in a criminal contempt proceeding of willful and contumacious resistance to the court’s authority. Traub v. United States, 98 U.S.App.D.C. 43, 232 F.2d 43, 47 (1955).

This Court is of the opinion, on the basis of the evidence, that the district court’s order of June 2, 1972, was indeed vague and ambiguous in its language and direction. It did not, in short, prescribe in definite and precise terms exactly what appellant was commanded to do in order to produce the requested records. Therefore, it is inconceivable that appellant’s failure to comply with the order could form the basis of a criminal contempt charge against him. Operating to the best pf his ability under such nebulous direction, appellant lacked the willful and contumacious resistance to the court’s authority which is necessary to support a criminal contempt charge. Only persons who contumaciously refuse to comply with a summons and who willfully fail to produce requested records can be punished for contempt. Reisman v. Caplin, 375 U.S. 440, 447-448, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964). Such was not the case here, particularly in light of the district court’s order of June 2, 1972.

In any event, we are cognizant of the fact that one who is charged with contempt of court for failure to comply with a court order makes a complete defense by proving that he is unable to perform or comply. A court will not imprison a witness for failure to produce documents which he does not have, unless he is responsible for them or is impeding justice by not explaining what happened to them. United States v. Bryan, 339 U.S. 323, 330-331, 70 S.Ct. 724, 94 L.Ed. 884 (1950); In re D. I. Operating Company, 240 F.Supp. 672, 676 (D.Nev.1965). Even though a person is a corporate official who assumes a responsibility or duty to act to bring about compliance with a court order to produce records, he is only expected to act within the limits of his power. “If he does all he can [to produce the requested records], he will not be punished. . . .” Fleischman, supra, 339 U.S. at 356-357, 70 S.Ct. at 743.

It would be exhaustive at this point to enumerate the many instances where appellant emphatically and unequivocally stated, under oath, that he was not in possession of the documents sought by the government or where he stated that any documents under his control had already been turned over to the United States Postal Inspector and United States Attorney. Suffice it to say that the record is replete with such instances where appellant used words to the effect that he “did not have any records”; and the fact that the evidence shows that the records were in his possession “at one time” is not conclusive on the question of his access to and ability to produce the records at the time of the government’s summons and during the contempt proceeding against him. It is interesting to note in this regard, moreover, that appellant’s assertions of his inability to produce the records were made by him with complete knowledge of the consequences that would befall him if his statements were found to be untrue.

We are convinced, therefore, that appellant did everything in his power to try to obtain the records and documents that were required to be produced by the Internal Revenue summons. As an example of his diligence and good faith in this regard, appellant even sent his wife to Ireland (albeit at the court’s direction) with the hope that she would be able to obtain the desired documents. Further, the record discloses at least one instance where appellant, through his counsel, indicated his desire to cooperate with the government regarding the production of the records and documents. Such good faith intent and reasonable efforts made by appellant to comply with the summons and the district court’s order do not, in the opinion of this Court, warrant the punishment of appellant for his failure to produce the records and documents that were sought by the government to aid its investigation into the possible tax liability of the Guernsey Excess Insurance Company.

Accordingly, the judgment of the district court holding appellant in contempt of court is reversed.

      . Issued pursuant to 26 U.S.C. § 7602.