(dissenting):
I dissent.
To me the majority opinion provides another example of an appellate court, in effect, substituting itself as trial counsel for the defense after having become imbued with the wisdom of hindsight.
In my opinion the majority deals correctly with most of appellants’ allegations of trial error. With respect to the claim that the absence of a search warrant was critical, the majority quite properly hold that “no warrant was required.” Similarly, concerning the sufficiency of the evidence adduced to prove that appellant DeBerry possessed twenty-five pounds of marijuana with intent to distribute, the majority finds that the evidence was “sufficient to have permitted this, issue to go to the jury.” Finally, it disposes of appellant De-Berry’s Bruton claim, concluding that there was “considerable independent evidence connecting DeBerry to the crime.” Up to this point the majority and I travel on parallel paths, both leading to af-firmance. Suddenly, however, the ma*455jority veers sharply from their path. It believes that “a potential conflict of interest existed” because “both Edwards and DeBerry employed the same attorney at trial.” According to the majority, this potential for conflict violated defendants’ Sixth Amendment rights and necessitates a remand.
The majority would, in effect, create a rule of law that in every criminal case in which two or more defendants are represented by the same counsel, there must be a preliminary examination by the trial court of counsel and their clients as to the possibility of conflict which would, in turn, to be effective, necessitate a full disclosure by defense counsel of counsel’s defense plans and strategy. This the trial judge did not do; but quaere, had he done so, might not a double jeopardy situation have been created or a possible interference with defendants’ Sixth Amendment rights ?
In this case each defendant consciously and voluntarily chose Ms. Gerling to represent him at trial. The potential for conflict here was first noticed by the trial judge when he was apprised of the fact that in the exercise of her discretion Ms. Gerling had decided to place only DeBerry not Edwards on the stand. He questioned Ms. Gerling about the conflict problem. She replied:
“I have explained and gone over all the facts with both of these defendants in my office numerous times. Any conflicts, and we have discussed it very carefully, and I have been very careful about this.”
Such a decision would not have been unusual. One defendant might have had a long criminal record — a deterrent to putting him on the stand. The other defendant with an unblemished record might have taken the stand without this fear.
Again at the time of sentencing, the subject of conflict was reviewed and counsel said:
“May I say this, sir, it was a problem to me also and that is why I very carefully explained to both clients, as I said sir, both together and separately.
* * ■ -* * * *
“May I say this, Judge: I have handled Mr. DeBerry’s family, different members of his family, for different cases and I also know Mr. Edwards through himself and I was very, very careful but it was not to my advantage, and I say this and I think your Honor understands what I mean, it was not to my advantage to handle both of them. It meant the same to me whether I handled one of them or both of them, sir.”
Not satisfied with counsel’s statements, the trial judge inquired of the defendants themselves as to their awareness of a possible conflict situation. The following colloquy took place:
“The Court: Can you tell me, did you discuss that very possibility ?
Ms. Gerling: I discussed that very possibility with both Mr. DeBerry, both together and separately, sir.
The Court: Is that true Mr. Edwards ?
Defendant Edwards: Yes.
The Court-: Mr. DeBerry, is that true?
Defendant DeBerry: That is true sir.”
What more could a careful trial judge have done? He does not have the right (nor should he) to tell the defendant that he did not approve of Ms. Gerling’s trial judgment and was therefore going to appoint counsel whose ideas were more in accord with his own notions of strategy. This court has held that: (United States v. Sheiner, 410 F.2d 337, 342 (1967)):
“. . . defendants who retain counsel also have a right of constitutional dimensions to representation by counsel of their own choice . ; that choice should not unnecessarily be obstructed by the court.”
To disapprove of the trial court’s handling of this case is to call this principle *456into question. As previously stated, the only course of action open to the trial judge under those circumstances would be to make inquiry as to possible conflict from both defendants’ counsel and defendants themselves before the trial commences. But any such procedure would in most cases call for a complete preliminary trial because frequently the potential for conflict might not appear (even as here) until the trial was well underway. Furthermore, defense strategy might be impaired if there were such an enforced disclosure. In my opinion there can be no question of the propriety and adequacy of the trial judge’s conduct in this case. Although he conducted no preliminary trial, he pursued the interests of the defendants to the. limit permitted by the law as soon as he became aware of a possible conflict.
There scarcely has been, is, or will be a trial in which unsuccessful counsel will not be able to think of some tactic that in retrospect he wishes he had or had not followed. The trial and appellate courts, once they have satisfied themselves that a certain trial strategy was voluntarily chosen by defense counsel, and voluntarily approved by the defendant, must leave the steering of the trial in the hands of counsel. To apply the hindsight sagacity expounded by the majority opinion is to undermine the whole structure of our adversary system of justice. Such a holding would give all defendants, where two or more are represented by common counsel, the opportunity to claim some conflict which could easily arise or could possibly be conjured up on appeal, reducing the first trial to nothing more than a trial run.
Experienced trial counsel will probably not disagree too much with the frequently heard expression that a courtroom trial is a game — possibly so, but the game should not be akin to duplicate bridge.
I can find no error in the trial judge’s conduct under the circumstances here presented and, hence, would affirm.