584 F.

2d 1113

UNITED STATES of America, Appellee,

v.
Victor Ernesto BOSCH, Appellant.
UNITED STATES of America, Appellee,
v.
Victor Correa GOMEZ, Appellant.
Nos. 77-1109, 77-1110.

United States Court of Appeals,

First Circuit.
Argued June 8, 1978.
Decided Sept. 29, 1978.

Wallace W. Sherwood, Boston, Mass., by appointment of the Court with

whom Leonard B. Mandell, Boston, Mass., was on brief, for appellant,
Victor Ernesto Bosch.
Carlos Perez Olivo, San Juan, P. R., by appointment of the Court for
appellant, Victor Correa Gomez.
John Voorhees, Atty., Dept. of Justice, Washington, D. C., with whom
Julio Morales-Sanchez, U. S. Atty., San Juan, P. R., and Robert J.
Erickson, Atty., Dept. of Justice, Washington, D. C., were on brief, for
appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and PETTINE, *
District Judge.
BOWNES, Circuit Judge.

Appellants, Correa Gomez and Ernesto Bosch, were tried together on several
narcotic counts stemming from the importation of cocaine and heroin to Puerto
Rico in May and June, 1975. Appellant Correa Gomez was convicted on one
count of conspiracy to possess and distribute narcotics in violation of 21 U.S.C.
846 and one count of distribution of narcotics in violation of 21 U.S.C.
841(a)(1). He was acquitted on another count of distribution. On appeal,

Correa Gomez contends that the admission of evidence implicating him in prior
crimes deprived him of a fair trial, and also that his conviction was obtained in
violation of the double jeopardy clause.
2

Appellant Ernesto Bosch was convicted of possession of narcotics in violation

of 21 U.S.C. 841(a)(1), but was acquitted of conspiracy to distribute narcotics
in violation of 21 U.S.C. 846. He claims that he was deprived of his sixth
amendment right to the effective assistance of counsel and because of improper
jury instructions of his right to a fair trial.

I. APPELLANT CORREA GOMEZ

3

During the redirect examination of one of the government witnesses, an alleged

coconspirator, the prosecutor, trying to pinpoint the date when the witness had
met Correa Gomez, asked him whether he had seen the defendant in New York
about one year prior to the occurrence of the crime for which appellant was
being tried. The witness gave a nonresponsive answer stating: "Well, it was as
to heroin that they were planning to bring to Puerto Rico."

Appellant's counsel immediately requested a mistrial, arguing that, once the

jury had heard this irrelevant and highly prejudicial statement, his client could
no longer obtain a fair trial. The motion was denied. Counsel then requested
that the statement be stricken from the record and the jury instructed to
disregard it. The court replied, "In a narcotics or a conspiracy case you can
bring (in) evidence as to any prior transaction1 of the same kind to show the
disposition of the Defendant to commit the crime . . . . Motion is denied."

The next witness called by the government volunteered, despite having been
instructed beforehand not to, that appellant was in the hospital recovering from
a gunshot wound shortly before he allegedly participated in the narcotics
transaction in issue. Because the gunshot wound had nothing to do with the
present case, the parties had stipulated that it was not to be mentioned to the
jury. The court, aware of this stipulation, Sua sponte, instructed the jury to
disregard the statement and struck the testimony from the record immediately
after the statement was volunteered. Appellant then moved for a mistrial, which
request was denied, but which resulted in the court spending several additional
minutes reinstructing the jurors that it would be extremely unfair for them to
consider the reference to the gunshot wound in determining appellant's guilt or
innocence on the narcotics charges.

Appellant contends that he was deprived of a fair trial because of the admission

of the statement as to his prior heroin involvement and the excluded gunshot
wound testimony. It is well settled that evidence of prior criminal acts is
inadmissible for the purpose of proving that a defendant has a criminal
disposition. United States v. Fosher, 568 F.2d 207, 211-12 (1st Cir. 1978);
United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977); United States v.
Foutz, 540 F.2d 733, 736 (4th Cir. 1976); United States v. Barrett, 539 F.2d
244, 248 (1st Cir. 1976). Such evidence should only be admitted after the court
determines that it is relevant for another reason, E. g., to show preparation,
plan, knowledge or identity, and that its probative value is not substantially
outweighed by the danger of unfair prejudice. Myers, supra; Barrett, supra.
Clearly, then, the district court's decision to allow the volunteered statement
concerning appellant's prior involvement with heroin traffic to remain in
evidence solely because it was relevant to appellant's criminal disposition was
error. United States v. Dansker, 537 F.2d 40, 57-58 (3d Cir. 1976), Cert.
denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); United States v.
Eatherton, 519 F.2d 603, 611 (1st Cir.), Cert. denied, 423 U.S. 987, 96 S.Ct.
396, 46 L.Ed.2d 304 (1975). The question remains, however, whether it
constitutes reversible error.
7

"A nonconstitutional error, as in the case of erroneous admission of similar act

evidence, is harmless if it is 'highly probable' that the error did not contribute to
the verdict . . . . Where there is overwhelming evidence of guilt . . . erroneous
evidentiary rulings on such collateral matters are often harmless." United States
v. Corey, 566 F.2d 429, 432 (2d Cir. 1977); Accord, United States v. Klein, 546
F.2d 1259, 1263 (5th Cir. 1977); United States v. Splain, 545 F.2d 1131, 113334 (8th Cir. 1976); United States v. Roland, 449 F.2d 1281, 1282 (5th Cir.
1971). In the present case, the evidence against Correa Gomez can fairly be
characterized as overwhelming. The chief government witness was Raymond
Rivera who had been directly involved in importing heroin and cocaine from
New York City to Puerto Rico. He and one Jose Luis were planning to bring
heroin to Puerto Rico, and Rivera felt that it was essential to find "the man" to
distribute the drugs because Rivera did not know many people in the
metropolitan area of San Juan. Correa Gomez was picked as the distribution
man. Rivera's testimony, which was not seriously challenged, went into great
detail as to the importation and distribution of heroin and cocaine in San Juan
by himself and appellant. According to Rivera, the appellant played a key role
in the distribution of the drugs. Rivera's testimony as to the offenses specified
in the indictment was clear, precise and uncontradicted. Another witness,
Gorgonio Lopez, also testified as to Correa Gomez's involvement in the
offenses for which he was tried. Given the strength of the evidence against
Correa Gomez and the fact that his prior involvement with heroin traffic was
only referred to once, and then briefly, we find that the district court's decision

to allow that reference to remain in evidence does not constitute reversible

error.2 See United States v. Plante, 472 F.2d 829, 830-32 (1st Cir.), Cert.
denied, 411 U.S. 950, 93 S.Ct. 1932, 36 L.Ed.2d 411 (1973).
8

Any prejudice which may have been caused by the volunteered statement
concerning the gunshot wound was effectively cured by the court's immediate
and comprehensive instructions to the jury to disregard that evidence. United
States v. Plante, supra, at 830-31. The admission of the evidence concerning
prior plans for importing heroin and the excluded gunshot wound testimony
neither individually nor collectively call for a reversal of Correa Gomez's
conviction.

The second issue raised by Correa Gomez is whether his conviction for
conspiring to possess and distribute narcotics in May and June, 1975, was
obtained in violation of the double jeopardy clause. One year prior to his trial
on the conspiracy charge, he pled guilty in a different case to aiding and
abetting in the unlawful possession of narcotics on June 11, 1975. Appellant
concedes that aiding and abetting is a substantive charge and that, generally, a
defendant may be prosecuted for both conspiracy and the underlying
substantive offense, even when the substantive offense is aiding and abetting.
Iannelli v. United States, 420 U.S. 770, 777-78, 95 S.Ct. 1284, 43 L.Ed.2d 616
(1975). He argues, however, that an exception to the general rule is applicable
to this case.

10

The exception appellant relies on is confined to those situations in which an

acquittal on one charge clearly constitutes a finding that a fact essential to the
proof of another charge does not exist. Under such circumstances, the
prosecution of the other charge is barred. Ashe v. Swenson, 397 U.S. 436, 44346, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe, a group of poker players
were robbed during the course of their game. Defendant was tried and acquitted
on the charge of robbing one of the players. He was then tried and convicted in
a different action for robbing another. When the second case reached the
Supreme Court, it held that the second conviction was obtained in violation of
the double jeopardy clause because a close examination of the record from the
first trial revealed that the acquittal in that case had to have been grounded upon
a finding by the jury that defendant was not at the scene when the crime
occurred. The issue whether he was at the scene, having been determined by a
valid and final judgment, could not, in accordance with the principle of
collateral estoppel, be litigated again between the same parties in any future
lawsuit. Therefore, since proof of his presence at the scene was essential to the
case against him in the second action, the conviction could not stand.

11

Appellant argues that the Ashe rule is applicable to the present case because
the drugs upon which both the aiding and abetting and the conspiracy charges
against him were based were from the same shipment and proof of both of the
charges was dependent upon a finding that he entered into the same agreement
to distribute the drugs. The Ashe rule is inapplicable, however, for two reasons.
First, it only applies where the defendant has been acquitted of the first charge
brought against him. Here, appellant pled guilty to the aiding and abetting
charge. Second, by pleading guilty to the aiding and abetting charge, he was not
necessarily admitting that he entered into the agreement upon which the
conspiracy charge was based. The indictment for aiding and abetting does not
refer to any agreement, and this is clearly not one of those rare cases where
proof of an agreement is necessary to prove aiding and abetting. See Iannelli,
supra, 420 U.S. at 777 n.10, 95 S.Ct. 1284; Sealfon v. United States, 332 U.S.
575, 580, 68 S.Ct. 237, 92 L.Ed. 180 (1948). Appellant's claim that his
conspiracy conviction was obtained in violation of the double jeopardy clause
is rejected.

12

Having found that none of the issues raised by Correa Gomez require reversal,
we affirm his conviction.

II. APPELLANT ERNESTO BOSCH

13

The sixth amendment to the United States Constitution states: "In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." U.S.Const. amend. VI. "It has long been recognized
that the right to counsel is the right to the effective assistance of counsel."
McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449, 25
L.Ed.2d 763 (1970).

14

Appellant Bosch has briefly described several incidents that occurred during
the course of his trial, raising questions as to the competency of his attorney.
He focuses on one to support his claim that he received constitutionallydeficient representation from his trial counsel. At the close of the defense's
presentation, during which appellant did not testify, Bosch's trial counsel
offered into evidence a pretrial motion for reduction of bail, Exhibit "K," which
contained a statement that Bosch had two prior narcotics convictions.

15

During a subsequent conference in the trial judge's chambers, appellant's

counsel explained that he had submitted this motion to demonstrate foul play on
the government's part in proving its case against appellant. In its original
indictment against Ernesto Bosch, the government had listed the date of the

alleged offense as June 9, 1975. The day after the indictment was issued
appellant filed, and appeared in court for a hearing on, the motion to reduce
bail. Several weeks later, a superseding indictment was issued, which listed the
date of the offense as June 10, 1975. Appellant's counsel theorized that the
second indictment was issued to rebut appellant's alibi defense for June 9, a
defense which the prosecution allegedly learned about from a United States
Marshal who overheard a conversation between appellant and his counsel
during the course of the bail hearing. To prove one aspect of this theory, that he
and his client were in court during the period between the issuance of the two
indictments and, therefore, could have been overheard by a marshal, appellant's
counsel introduced the bail motion into evidence because the clerk had stamped
on the motion the date on which it was filed.
16

Trial counsel was aware when he introduced the motion that it contained
references to past crimes. He made no attempt, however, to delete this from the
document prior to introducing it into evidence or at any time thereafter.
Evidently, it never occurred to defense counsel that he could prove his client's
presence in court on June 10 without also informing the jury of the prior
convictions.

17

During their deliberations, the jurors asked:

Are we allowed to consider the Government and Defense Exhibits?

18
I'm referring specifically to Defendant's Exhibit "K" which is attached.
19
20

The trial judge, after meeting with counsel, instructed the jury:

(Y)ou are to consider it, each and every exhibit admitted in evidence.
21
22

Sometime later, the jury sent the following message to the district court:

23 Exhibit "K" it is stated that Mr. Victor Ernesto Bosch has served two sentences
In
for violation of the Narcotics Act. Most of us have been influenced about his
character with this statement. (Please see Item # 3 Exhibit "K".) Are we allowed to
be influenced by this statement?
24

When informed by the court of the jury's questions as to the references,

appellant's counsel requested neither a mistrial, an instruction to disregard, nor
a limiting instruction. He appeared content to leave the matter of how to
respond to the jury's query entirely to the district judge, even when informed by
the judge that he intended to instruct the jurors that they could consider the

statement for any purpose, which he did. Our reading of the colloquy between
defense counsel, the court and the prosecutor leads to the conclusion that
defense counsel was so captivated by his own theory of government foul play
that he failed to recognize the import of what the jury was saying.
25

Heretofore, we have adhered to the rule that "ineffective counsel . . . means

representation such as to make a mockery, sham or a farce of the trial." United
States v. Wright, 573 F.2d 681, 683-84 (1st Cir. 1978). The majority of the
other circuits, however, have within the last decade replaced the "sham and
mockery" standard with a "reasonably competent assistance" standard, or
facsimiles thereof.3 Since incompetence confined to one aspect of a case, as it
is here, cannot generally be said to render the entire proceedings a "farce and
mockery of justice," and, since appellant's claim has merit when considered
under the "reasonably competent assistance" rule, we think that this appeal is
an appropriate one in which to reexamine our adherence to the "farce and
mockery" standard.

26

The farce and mockery standard appears to have been established in Diggs v.
Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, Cert. denied, 325 U.S. 889, 65 S.Ct.
1576, 89 L.Ed. 2002 (1945). Rickenbacker v. Warden, Auburn Correctional
Facility, 550 F.2d 62, 67 (2d Cir. 1976), Cert. denied, 434 U.S. 826, 98 S.Ct.
103, 54 L.Ed.2d 85 (1977) (dissenting opinion); Beasley v. United States, 491
F.2d 687, 693 (6th Cir. 1974). In the view of the Diggs court, the sixth
amendment only guaranteed assistance of counsel, not effective assistance.
Diggs v. Welch, supra, 80 U.S.App.D.C. at 6, 148 F.2d at 668. Therefore, the
court treated the incompetence of counsel claim before it as arising under the
due process clause's guarantee of a fair trial. The court held that, to constitute a
violation of an accused's right to a fair trial, his counsel's incompetence had to
be so gross as to render the proceedings a farce and mockery of justice. Id. 80
U.S.App.D.C. at 7, 148 F.2d at 669.

27

This view of the basis of ineffective assistance claims can no longer withstand
analysis. 4 It is now generally accepted that the sixth amendment guarantees the
right to the effective assistance of counsel. McMann, supra, 397 U.S. at 771
n.14, 90 S.Ct. 1441; Rickenbacker, supra; Beasley, supra, 491 F.2d at 694;
United States v. DeCoster, 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202
(1973).

28

In McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L.Ed.2d

763 (1970), a case dealing with the validity of a guilty plea following a coerced
confession, the Court stated that the proper test for measuring the competency
of counsel's advice to plead guilty is whether the advice "was within the range

of competence demanded of attorneys in criminal cases." The McMann

standard has been extended to apply to sixth amendment ineffective assistance
claims in general. Marzullo v. Maryland, 561 F.2d 540, 543, 545 (4th Cir.
1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (En
banc as to adoption of McMann standard); Beasley, supra, 491 F.2d at 696;
DeCoster, supra, 159 U.S.App.D.C. at 331 & n.16, 487 F.2d at 1202 & n.16;
Moore v. United States, 432 F.2d 730, 736 n.25 (3d Cir. 1970) (En banc ). In
light of these circumstances, we are persuaded that the "farce and mockery"
standard is no longer appropriate to determine the merit of ineffective
assistance claims. In its stead, we follow the lead of most other circuits and
adopt the "reasonably competent assistance" standard, which is shorthand for
the tenet that the quality of a defense counsel's representation should be within
the range of competence expected of attorneys in criminal cases. Marzullo,
supra, 561 F.2d at 543, 544-45; United States v. Bad Cob, 560 F.2d 877, 880
(8th Cir. 1977); DeCoster, supra, 159 U.S.App.D.C. at 331, 487 F.2d at 1202;
Moore, supra, 432 F.2d at 736.5
29

Under the reasonably competent assistance standard, "effective representation

is not the same as errorless representation." Marzullo, supra,561 F.2d at 544.
Even the most skillful criminal attorneys make errors during a trial. The myriad
of decisions which must be made by defense counsel quickly and in the
pressure cooker of the courtroom makes errorless representation improbable, if
not impossible. This is particularly so since the determination of whether there
have been errors is made by a court far removed from the heat of trial combat
and with the time necessary to make a reasoned judgment. Thus, a choice
between trial tactics, which appears unwise only in hindsight, does not
constitute constitutionally-deficient representation under the reasonably
competent assistance standard. To state and prove a claim under this standard, a
defendant must allege and demonstrate that his counsel's error clearly "resulted
from neglect or ignorance rather than from informed, professional
deliberation." Id. at 544.

30

Application of this standard does not mean that a court should "second guess
reasoned choices between trial tactics," Cooper v. Fitzharris, 551 F.2d 1162,
1166 (9th Cir. 1977), nor does it mean that defense counsel, to protect him or
herself against allegations of inadequacy, must "waste the court's time with
futile or frivolous motions," Wright, supra, 573 F.2d at 684. "It is sufficient if
(counsel) is prepared and conducts the defense with reasonable knowledge and
skill with an exercise of knowledgeable choices of trial tactics." Cooper, supra.

31

In the present case, although admission of the bail motion bearing the filing
date was arguably part of a defense strategy, admission of the contents of the

motion, particularly the references to appellant's prior narcotics convictions,

bore no relation, and clearly was not necessary, to the implementation of that
strategy. It is in this respect that the cases cited by appellee are distinguishable.
In those cases, the admissions of the prior convictions themselves were part of
the defense strategy. Bad Cob, supra, 560 F.2d at 883; United States v.
Grummel, 542 F.2d 789, 791 (9th Cir. 1976), Cert. denied, 429 U.S. 1051, 97
S.Ct. 763, 50 L.Ed.2d 767 (1977).
32

United States v. Goodwin, 531 F.2d 347, 350-52 (6th Cir. 1976), and Marzullo,
supra, are more applicable to the present case than the cases cited by appellee
because counsel's performance in Goodwin and Marzullo was not attributable
to a poor choice of trial strategy, but to inexcusable ignorance or senseless
disregard of their clients' rights. In Goodwin, counsel's ignorance of the
elements of the crime with which his client was charged resulted in him
allowing the defendant to make statements at a pretrial hearing that, in fact,
amounted to a confession. The Sixth Circuit held that this violated the
defendant's right to effective assistance under the standard, "reasonably likely to
render and rendering reasonably effective assistance." United States v.
Goodwin, supra, at 348. This standard is similar, if not in effect the same, as
"reasonably competent assistance." In Marzullo, defense counsel failed, for no
apparent reason, to move for exclusion of the jury pool from the courtroom
when he knew that the court was about to be informed about information
irrelevant and prejudicial to the defense. Counsel next waived some of his
peremptory challenges during voir dire before he had had the opportunity to
question any of the prospective jurors about whether they had been influenced
by the previously revealed damaging information. Furthermore, he never
requested an instruction that the jury disregard the information. The Fourth
Circuit held: "We are persuaded that (counsel's) representation of defendant
with respect to this aspect of the case (selection of an unbiased jury) was
outside the range of competence expected of attorneys in criminal cases" and
thus constitutes a violation of the defendant's sixth amendment right. Id. at 54647. In the present case, the admission of the reference to past convictions was
not only not a part of any trial strategy, but also, as defense counsel himself
admits, not due to oversight. Trial counsel was aware that this harmful
information was in the motion at the time he offered it into evidence. Given
that appellant did not take the stand, and that no purpose beneficial to appellant
has been suggested or is apparent as a rationale for admission of these
references, we can only reach the conclusion that it would have been clear to a
reasonably competent criminal attorney that admission of these notations of
past, related convictions could only cause significant harm to the appellant's
case. Counsel's subsequent failure to move for a mistrial, after the jury clearly
stated that the prior convictions had influenced its view of appellant's character,

thus making clear the critical importance of the offending references,

commands this conclusion. Consequently, we find that trial counsel's offer of
these references into evidence clearly resulted from neglect or ignorance, rather
than from informed, professional deliberation, and thus deprived Ernesto Bosch
of his sixth amendment right to effective assistance of counsel.
33

The circuits are split on the question of whether an infraction of the sixth
amendment right to effective assistance can ever be treated as harmless error,
and if so, which party has the burden of proof.6 We shall not deal with that
issue here, however, because, regardless of which position we took, our
decision that appellant's conviction should be reversed would remain the same.
Upon reviewing the record, we are unable "to declare a belief that (the sixth
amendment ineffective assistance error) was harmless beyond a reasonable
doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d
705 (1967). The evidence against appellant, although perhaps sufficient to
sustain the verdict under the substantial evidence rule, was not overwhelming.
United States v. Taylor, 508 F.2d 761, 765 (5th Cir. 1975), Appeal after
remand, 530 F.2d 49 (5 Cir. 1976). The government's case consisted primarily
of the testimony of admitted accomplices, whose credibility was attacked.
Moreover, the jury stated to the court during the course of its deliberations that
most of its members had actually been influenced by the references to past
convictions in judging appellant's character. Accordingly, since the error was
clearly not harmless in the present case, we leave for another day the issue of
whether deprivation of effective assistance can ever constitute harmless error.7

34

There is another aspect to this case which must be discussed. The court's
instructions to the jury in response to both questions about Exhibit " K" were
clearly erroneous. "Evidence of other crimes . . . is not admissible to prove the
character of a person in order to show that he acted in conformity therewith."
Fed.R.Evid. 404(b); United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976);
United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), Cert. denied, 423 U.S.
987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975). Thus, the district court should not
have instructed the jurors, as it in effect did, that they could consider the
references to appellant's past crimes in terms of whether he was disposed to
commit the offense with which he was then charged.

35

The rationale for the court's instructions was, at least, partially based on the
invited error doctrine: "(w)hen a defendant, acting through competent counsel,
chooses to open up constitutionally forbidden subject matter, he may not
effectively complain that his own trial strategy denied him his constitutional
rights." United States v. White, 377 F.2d 908, 911 (4th Cir.), Cert. denied, 389
U.S. 884, 88 S.Ct. 143, 19 L.Ed.2d 180 (1967). The court's reliance on the

invited error doctrine was, however, misplaced. In the instant case, appellant
was not "acting through competent counsel" and the court should have become
aware of that during the conference in its chambers on the jury's query
regarding Exhibit "K." First, appellant's counsel admitted during the conference
that he had been aware when he introduced the Exhibit that it contained the
references to appellant's prior narcotics convictions. It appears from his
statements at the conference that he had simply never thought of attempting to
delete the references before admitting the motion. Second, when he was
informed during the conference that at least some members of the jury were
influenced by these references, he made no attempt to mitigate this harm by
seeking a curative instruction or mistrial.
36

Although a court is entitled to rely to a great extent on the parties' attorneys to

protect their own clients' interests, the court, too, has a duty to ensure that a
criminal defendant receives a fair trial. United States v. Nobles, 422 U.S. 225,
230, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); United States v. Trapnell, 512 F.2d
10, 12 (9th Cir. 1975); United States v. Cuevas, 510 F.2d 848, 850 (2d Cir.
1975); United States v. Schiavo, 504 F.2d 1, 6 (3d Cir.), Cert. denied sub nom.,
Ditter v. Philadelphia Newspapers, Inc., 419 U.S. 1096, 95 S.Ct. 690, 42
L.Ed.2d 688 (1974); ABA Standards Relating to the Function of the Trial Judge
1.1(a) (Tent. Draft 1972). Since the court should have become aware during
the conference in chambers that counsel's performance was less than adequate,
and since the jury was obviously prejudiced by its consideration of the
references to the prior crimes, we find that the court by adhering to the invited
error doctrine failed in its duty to ensure a fair trial. Cf. McMann v. Richardson,
397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); United States v.
Plante, 472 F.2d 829, 831 n.3 (1st Cir.), Cert. denied, 411 U.S. 950, 93 S.Ct.
1932, 36 L.Ed.2d 411 (1973); Weaver v. United States, 374 F.2d 878, 882 (5th
Cir. 1967).

37

Since prejudicial constitutional errors occurred during the course of the trial,
Ernesto Bosch's conviction is reversed and his case remanded for a new trial.8

Of the District of Rhode Island, sitting by designation

Strictly speaking, the statement did not establish a prior transaction, merely
what "they" were planning

Having failed to request an instruction in the district court that the evidence
could only be considered for limited purposes, we decline to reach the issue,
raised by appellant, whether the district court's failure to give such instruction

constitutes error. United States v. Fosher, 568 F.2d 207, 210 n.12 (1st Cir.
1978)
3

Marzullo v. Maryland, 561 F.2d 540, 543, 544-45 (4th Cir. 1977), Cert. denied,
435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978); United States v. Bad
Cob, 560 F.2d 877, 880 (8th Cir. 1977); Cooper v. Fitzharris, 551 F.2d 1162,
1166 (9th Cir. 1977); Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir.
1977); Ortiz v. Sielaff, 542 F.2d 377, 379 (7th Cir. 1976); Beasley v. United
States, 491 F.2d 687, 696 (6th Cir. 1974); United States v. DeCoster, 159
U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (1973); Moore v. United States,
432 F.2d 730, 736 (3d Cir. 1970) (En banc ). The Second and Tenth Circuits
still adhere to the "farce and mockery of justice" standard, although the Second
indicates that it would be willing to reexamine its position in an appropriate
case. United States v. Bubar, 567 F.2d 192, 202 (2d Cir.), Cert. denied, 434
U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977); United States v. Riebold, 557
F.2d 697, 702-03 (10th Cir.) Cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54
L.Ed.2d 133 (1977); United Sates v. Medico, 557 F.2d 309, 318 & n.15 (2d
Cir.), Cert. denied, 434 U.S. 986, 98 S.Ct. 614, 54 L.Ed.2d 480 (1977);
Rickenbacker v. Warden, Auburn Correctional Facility, 550 F.2d 62, 66 (2d
Cir. 1976), Cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977) (the
dissenting opinion, in fact, urges adoption of a new standard)

There is authority for the proposition that the Diggs view could not even
withstand analysis at the time it was propounded. McMann v. Richardson, 397
U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Beasley, supra, 491
F.2d at 692

Other circuits that have rejected the "farce and mockery" approach have
adopted standards very similar to that of "reasonably competent assistance" and
which, in effect, may be the same. Their standards are "counsel reasonably
likely to render and rendering reasonably effective assistance" (Cooper, supra;
Haggard, supra; Beasley, supra ), and "minimum standard of professional
representation" (Ortiz, supra )

Compare Bad Cob, supra, 560 F.2d at 880, and Johnson v. Johnson, 531 F.2d
169, 177-78 (3d Cir.), Cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d
823 (1976), With Cooper, supra, 551 F.2d at 1165, And Beasley, supra, 491
F.2d at 696 (But see United States v. Sumlin, 567 F.2d 684, 688-89 (6th Cir.
1977))

Citing Fifth Circuit precedent, appellee contends that, because appellant's trial
counsel was retained, rather than court-appointed, appellant's prima facie case
contains an additional element of proof. Appellant must not only demonstrate

that his counsel's representation fell below the applicable standard, but also that
"the authority conducting the trial and owing the sixth amendment right . . . had
some connection with the incompetent representation. . . ." United States v.
Childs, 571 F.2d 315, 316 (5th Cir. 1978)
The Fifth Circuit has adopted this position in Fitzgerald v. Estelle, 505 F.2d
1334, 1337 (5th Cir. 1974), Cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45
L.Ed.2d 675 (1975), an appeal by a state prisoner from the denial of his petition
for a writ of habeas corpus. The court held that when counsel was retained, a
sixth amendment claim had to be assessed more strictly to avoid placing "a
procedurally intolerable and practically impossible burden upon trial judges,
who have no control over the selection of counsel employed by a defendant."
Id. at 1336-37. To find this state involvement, the court required a showing that
the trial judge or prosecutor knew that the defendant was receiving incompetent
representation, but took no remedial action, participated in the incompetency
themselves, or should have been aware of counsel's incompetence and taken
corrective action. Id. At 1337. This standard was extended by the Fifth Circuit
to appeals from federal court convictions in Childs, supra.
Other circuits have either rejected the position that a showing of governmental
participation or responsibility is necessary in claims arising from federal court
convictions or have not addressed the issue. Crismon v. United States, 510 F.2d
356, 357 n.2 (8th Cir. 1975); United States v. McCord, 166 U.S.App.D.C. 1, 18
n.63, 509 F.2d 334, 351 n.63 (1974) (En banc ), Cert. denied, 421 U.S. 930, 95
S.Ct. 1656, 44 L.Ed.2d 87 (1975); United States v. Marshall, 488 F.2d 1169,
1192-93 (9th Cir. 1973); United States v. Fisher, 477 F.2d 300, 302 (4th Cir.
1973). We need not reach the issue in the present case. As will be further
explained, Infra, the district court should have been aware that appellant was
not receiving competent assistance and taken corrective action when, during a
conference in the court's chambers, counsel failed to request any kind of relief
for his client, despite being informed by the jury that some of its members had
been influenced by appellant's prior record. Therefore, under the Fifth Circuit's
standard, the required showing of governmental responsibility was met. Thus,
as with the harmless error issue, our decision on appellant's ineffective
assistance claim would be the same regardless of whether we adopted the Fifth
Circuit's position that a defendant has a more stringent standard to meet when
his counsel is retained.
8

Remanding for a new trial, rather than for entry of a judgment of acquittal, is in
conformity with the requirements of the double jeopardy clause because the
conviction is reversed due to trial error, not to a finding that the evidence was
insufficient to support the verdict. Burks v. United States, --- U.S. ----, ----, 98
S.Ct. 2141, 57 L.Ed.2d 1 (1978)