PER CURIAM:
After a bizarre set of procedural circumstances, both in the Court of Appeals and the District Court, this case is now before us subsequent to our order to show cause why the conviction of the appellant Butler should not be vacated for ineffective assistance of trial counsel. A review of the actions at both the trial and appellate levels leaves us no choice but to vacate the conviction and remand for a new trial.
Since our decision does not turn directly upon the facts of the substantive offense, except in relation to the actions of trial counsel, the usual details of the tawdry narcotics traffic will be abbreviated.
Appellant John Butler was found guilty of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1970).
On 10 October 1972 he was sentenced to a term of three to nine years’ imprisonment.
A timely notice of appeal from the conviction was filed in this court,
briefs were received, and oral argument was heard. Before reaching a decision on the merits, we were informed by appellant’s counsel on appeal that appellant’s trial counsel was not a member of the bar of the District of Columbia. Accordingly, on 23 May 1973, we remanded the appeals of appellant and his codefendant for the District Court to give “appropriate consideration to the situation resulting from this improper representation of the appellant Butler.”
A hearing was held on remand “to determine whether or not Mr. Butler was properly represented in spite of [his trial counsel’s] not being formally admitted to the Bar of this Court.”
Testimony indicated that trial counsel had lied to his professional colleagues concerning his membership to the bar; other specific observations related directly to counsel’s actions in this case. By order entered 31 July 1973, denying the motion for a new trial,
the District Court found “of no consequence” the fact that trial counsel was not a member
of the bar of the District of Columbia, and that the representation had been “adequate.” Butler then appealed the 31 July order.
Inasmuch as our consideration of the merits of Butler’s direct appeal was aborted when we learned of the ineffective assistance of counsel issue, we now have before us the direct appeal issues as well as the issues raised on appeal from the remand proceeding. The latter were embraced in our order to show cause.
I. FACTS
Appellant Butler was convicted after a trial at which only one witness for the Government implicated him in the crime. Edward Whiteside, appellant’s nephew, testified that Butler, his uncle, had sent him from Greenville, South Carolina, to the District of Columbia to purchase narcotics from codefendant Lucas. Whiteside testified that he had heard Butler making the arrangements by telephone from his (Butler’s) mother’s house in Greenville in the first week of June. He also testified that when he purchased the narcotics Lucas had said to him, “tell John to put a five on it,”
that is, tell the appellant to “cut” the heroin or dilute it with other substances. Whiteside testified he had been given eight hundred dollars by the appellant to purchase the narcotics, and that a friend of Lucas’ had made airplane reservations for Whiteside to return to South Carolina with the drugs.
This testimony of the one witness was the sole testimony implicating appellant Butler, either by name or description. Other testimony squarely implicated co-defendant Lucas and Whiteside, the courier who was arrested with the narcotics in his actual possession.
Appellant called three witnesses and took the stand himself to rebut White-side’s testimony. Appellant’s mother, his wife, and a friend testified that they had not seen Whiteside in Greenville during the time he claimed to have heard Butler make telephone arrangements for the purchase of narcotics. All three witnesses also testified that when they had gone to the jail to visit Butler, Whiteside, who was in a nearby cell, said that he intended to implicate Butler, implying that it was because Butler had not helped him raise money for a release bond. Butler himself denied having seen or spoken with Whiteside in Greenville or having any knowledge of the purchase of narcotics from Lucas.
II. APPELLANT’S CONTENTIONS ON APPEAL
Appellant contends that the trial court erred in excluding from evidence the transcript of a prior sworn inconsistent statement by the sole Government witness against Butler, Edward Whiteside. The trial court also denied defense requests for the identity of a police informer and for allegedly misleading jury instructions on aiding and abetting. As a separate ground for reversal, appellant challenges the admission into evidence of hearsay statements by the unidentified informant and appellant’s codefendant, who did not testify at the trial, which were used to corroborate the testimony of the Government’s principal and only direct witness against appellant.
Appellant particularly complains of the admission into evidence of a police search of appellant’s apartment for narcotics pursuant to a warrant, approximately two months before the alleged crime, as highly prejudicial and constituting reversible error. This was the only evidence, aside from Whiteside’s assertions, which linked appellant to narcotics in any way. Coming from police authorities, such testimony was no doubt damaging.
Finally, it is argued that the record at trial and at the subsequent remand hearing reveals that Butler was denied effec
tive assistance of counsel. Because we find this last argument dispositive of the appeal before us, we do not reach the other issues, many of which are nevertheless substantial.
This court has recently reconsidered the standards to be applied to claims of ineffective assistance of counsel which are made on direct appeal. We held in United States v. De Coster
that the right to effective assistance is violated when a defendant is denied “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”
In this case, appellant argues that trial counsel’s nonmembership in the bar, his misrepresentations, and his conduct at trial constitute a sufficient base for finding that there was a denial of the right of effective counsel.
We agree.
Standing alone, the mere fact of a trial attorney’s nonmembership in the local bar is not necessarily sufficient to find that the right to effective counsel was breached. While a defendant’s right is violated when he is represented by a layman posing as a lawyer,
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PER CURIAM:
After a bizarre set of procedural circumstances, both in the Court of Appeals and the District Court, this case is now before us subsequent to our order to show cause why the conviction of the appellant Butler should not be vacated for ineffective assistance of trial counsel. A review of the actions at both the trial and appellate levels leaves us no choice but to vacate the conviction and remand for a new trial.
Since our decision does not turn directly upon the facts of the substantive offense, except in relation to the actions of trial counsel, the usual details of the tawdry narcotics traffic will be abbreviated.
Appellant John Butler was found guilty of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1970).
On 10 October 1972 he was sentenced to a term of three to nine years’ imprisonment.
A timely notice of appeal from the conviction was filed in this court,
briefs were received, and oral argument was heard. Before reaching a decision on the merits, we were informed by appellant’s counsel on appeal that appellant’s trial counsel was not a member of the bar of the District of Columbia. Accordingly, on 23 May 1973, we remanded the appeals of appellant and his codefendant for the District Court to give “appropriate consideration to the situation resulting from this improper representation of the appellant Butler.”
A hearing was held on remand “to determine whether or not Mr. Butler was properly represented in spite of [his trial counsel’s] not being formally admitted to the Bar of this Court.”
Testimony indicated that trial counsel had lied to his professional colleagues concerning his membership to the bar; other specific observations related directly to counsel’s actions in this case. By order entered 31 July 1973, denying the motion for a new trial,
the District Court found “of no consequence” the fact that trial counsel was not a member
of the bar of the District of Columbia, and that the representation had been “adequate.” Butler then appealed the 31 July order.
Inasmuch as our consideration of the merits of Butler’s direct appeal was aborted when we learned of the ineffective assistance of counsel issue, we now have before us the direct appeal issues as well as the issues raised on appeal from the remand proceeding. The latter were embraced in our order to show cause.
I. FACTS
Appellant Butler was convicted after a trial at which only one witness for the Government implicated him in the crime. Edward Whiteside, appellant’s nephew, testified that Butler, his uncle, had sent him from Greenville, South Carolina, to the District of Columbia to purchase narcotics from codefendant Lucas. Whiteside testified that he had heard Butler making the arrangements by telephone from his (Butler’s) mother’s house in Greenville in the first week of June. He also testified that when he purchased the narcotics Lucas had said to him, “tell John to put a five on it,”
that is, tell the appellant to “cut” the heroin or dilute it with other substances. Whiteside testified he had been given eight hundred dollars by the appellant to purchase the narcotics, and that a friend of Lucas’ had made airplane reservations for Whiteside to return to South Carolina with the drugs.
This testimony of the one witness was the sole testimony implicating appellant Butler, either by name or description. Other testimony squarely implicated co-defendant Lucas and Whiteside, the courier who was arrested with the narcotics in his actual possession.
Appellant called three witnesses and took the stand himself to rebut White-side’s testimony. Appellant’s mother, his wife, and a friend testified that they had not seen Whiteside in Greenville during the time he claimed to have heard Butler make telephone arrangements for the purchase of narcotics. All three witnesses also testified that when they had gone to the jail to visit Butler, Whiteside, who was in a nearby cell, said that he intended to implicate Butler, implying that it was because Butler had not helped him raise money for a release bond. Butler himself denied having seen or spoken with Whiteside in Greenville or having any knowledge of the purchase of narcotics from Lucas.
II. APPELLANT’S CONTENTIONS ON APPEAL
Appellant contends that the trial court erred in excluding from evidence the transcript of a prior sworn inconsistent statement by the sole Government witness against Butler, Edward Whiteside. The trial court also denied defense requests for the identity of a police informer and for allegedly misleading jury instructions on aiding and abetting. As a separate ground for reversal, appellant challenges the admission into evidence of hearsay statements by the unidentified informant and appellant’s codefendant, who did not testify at the trial, which were used to corroborate the testimony of the Government’s principal and only direct witness against appellant.
Appellant particularly complains of the admission into evidence of a police search of appellant’s apartment for narcotics pursuant to a warrant, approximately two months before the alleged crime, as highly prejudicial and constituting reversible error. This was the only evidence, aside from Whiteside’s assertions, which linked appellant to narcotics in any way. Coming from police authorities, such testimony was no doubt damaging.
Finally, it is argued that the record at trial and at the subsequent remand hearing reveals that Butler was denied effec
tive assistance of counsel. Because we find this last argument dispositive of the appeal before us, we do not reach the other issues, many of which are nevertheless substantial.
This court has recently reconsidered the standards to be applied to claims of ineffective assistance of counsel which are made on direct appeal. We held in United States v. De Coster
that the right to effective assistance is violated when a defendant is denied “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”
In this case, appellant argues that trial counsel’s nonmembership in the bar, his misrepresentations, and his conduct at trial constitute a sufficient base for finding that there was a denial of the right of effective counsel.
We agree.
Standing alone, the mere fact of a trial attorney’s nonmembership in the local bar is not necessarily sufficient to find that the right to effective counsel was breached. While a defendant’s right is violated when he is represented by a layman posing as a lawyer,
it has been held that the right is not violated when the sole prejudicial factor appears to be that counsel was not a member of the federal bar but was a member of the local bar and known by the judge to be well qualified.
In the ease before us, however, we have the presence of several prejudicial considerations in addition to the mere formality of bar membership. First, counsel
misrepresented
his membership in the bar to the court, to his law firm partners, and to his clients. Secondly, although he conferred to some extent with co-counsel, the conduct of appellant’s defense was principally in his hands, and he apparently had had no previous trial experience.
Finally, and critically, the record of the trial itself reveals significant errors on the part of counsel. For instance, counsel failed to object to the introduction through police officers of hearsay statements made by the informant which tended to implicate Butler in the narcotics purchase. Nor did counsel object to references to those statements made during the course of the government’s closing argument. Counsel failed to object to the introduction of Lucas’ hearsay statement to which Whiteside, not Lucas, testified. Moreover, since Whiteside was the sole Government witness who testified directly about appellant’s alleged participation in the crime, undermining his credibility was essential for the defense. Yet, although counsel had in his possession a transcript of Whiteside’s testimony at the pretrial suppression hearing which conflicted in critical ways with that given at trial, counsel failed to use the transcript as a basis for a thorough cross-examination of Whiteside.
Because they may arguably be the product of tactical decisions as opposed to being the result of inadequate preparation, such errors might normally not be germane to an ineffectiveness claim.
However, they are highly relevant where, as here, other factors — such as counsel’s nonmembership in the bar — independently raise the question of ineffectiveness.
On reviewing the facts of this case, we believe that appellant has demonstrated a substantial violation of the duties owed him by his counsel. Partly because the very ineffectiveness of the assistance may lead to prejudice not being reflected in the record, the burden at this point shifts to the Government to establish a lack of prejudice.
III. THE GOVERNMENT'S FAIL-ÜRE TO ANSWER
Not only has the Government clearly failed to meet its burden in this case, it has not even attempted to carry it. The record demonstrates a repeated pattern of untimely motions to extend time for filing the Government’s brief. On 30 April 1974 the
third
motion for extension of time in which to file the Government’s brief was made. Two of these motions for additional time were themselves filed late. The grounds alleged were work on other eases and a long scheduled vacation by the Assistant U.S. Attorney responsible. The patience of the court being exhausted, the Government’s third motion for extension . of time was denied. As a result, this court has never received a brief from the Government answering the serious issues raised on appeal.
These delays were singularly callous and inexcusable because the appellant had been incarcerated since 22 June 1972. We were not dealing in abstractions when we wrote in United States v. Stanley:
Faced with the spectre of delay caused by the Government, it becomes increasingly hard for appellate judges in good conscience to deny release pending appeal when the United States Attorney’s office is requesting one, two, and three extensions in filing its brief on the merits.
On the same day we denied the Government’s third request for an extension, we ordered appellant released on his own recognizance with conditions. The Government was further directed to show cause why the conviction of appellant should not be vacated for ineffective assistance of counsel. The response to that order, filed only after yet another extension of time was granted, is the only Government discussion of the issue on remand of ineffective assistance of counsel. It is inadequate.
We find that the appellant was denied his constitutional right to effective counsel in his behalf, vacate the judgment of conviction, and remand for a new trial.
So ordered.