(concurring and dissenting):
I concur in the affirmance of Anderson’s and Sloan’s convictions, but dissent from the majority’s decision to remand as to Eucker.
A defendant should not plead guilty to charges of which he is ignorant or about which he is confused. However, the facts in this case belie any argument that Eucker was either ignorant or confused at the time of his plea. Eucker was a member of the Executive Committee of Orvis Brothers, the partner in charge of operations, and a man obviously sophisticated in his knowledge both of the securities industry and its ex*258tensive regulation by the federal government. Count Nine of the indictment expressly referred to 15 U.S.C. § 78b,1 all three subsections and its various subparts of § 78h were obviously included thereby.
Eucker was represented by counsel throughout the litigation at bar. He pleaded guilty on the express understanding that he would appeal that very plea.2 He made no claim of ignorance or confusion before the district court3 or on appeal to this Court.4 He has alleged only that the Government failed to draft an indictment correct in all its technical form and detail, thereby rendering that indictment “fatally defective”.5 Eucker does not claim that he failed to understand the charges against him;6 he merely posits that the law should not apply to him because the text of the indictment preceding the citation to § 78h was largely taken from a subsection in the statute which could not apply to his particular acts.
The majority properly concludes that the Government is not compelled to abide by a defendant’s selective interpretation of his indictment. However, by remanding the case at this point, the majority undermines its own holding. The remand prolongs this litigation unnecessarily, and its effect is to clothe Eucker with an innocence which the facts plainly refute. Eucker should not be given the opportunity — at this late stage in the proceedings — to plead a state of ignorance or helpless confusion which is disingenuous and completely contrary to the record.
I would reach the merits of his appeal at this time and would affirm his conviction on the grounds that the indictment adequately set forth the charges to which he pleaded guilty.
. Reference in the majority opinion, at pp. 256-257, to §§ 78j(b), 78o(c), and 77q(a) is inapposite in view of the facts that Eucker was indicted under and pleaded guilty to § 78h; was convicted under § 78h; and has predicated his appeal on the sufficiency of the indictment’s recitation of § 78h.
. Appellant Eucker’s appendix at 50. All references to “appellant” herein are to Eucker.
. In urging that appellant be permitted an immediate appeal from his plea of guilty, Eucker’s counsel argued that the statute was vague, an argument which was given weight by the district court. [Transcript of proceedings, March 14, 1975, Appellant’s appendix at 29: . .1 agree with your Honor that the statute is not a model of clarity . I believe your Honor understands my intention with respect to the plea that is to be offered today which is to have my client, Mr. Eucker, plead to the indictment as drafted, and of course denying that the aggregate net indebtedness of all the customers exceeded the amount of the hypothecation, and then taking that up upstairs for a hopeful clarification of what the statute means.”] However, it should be noted that appellant has not raised that issue on appeal; on the contrary, he fails even to cite it as a basis for the district judge’s decision respecting appeala-bility of the plea — a curious omission. [Appellant’s brief at 6: “Eucker moved to dismiss Count 9 upon the ground that the count failed to allege an essential element of the crime charged, to wit, that the total amount of securities hypothecated was in excess of the aggregate indebtedness to Orvis of all customers on all of their securities carried for their account by Orvis. The motion to dismiss Count 9 was denied.”] This, in addition to Eucker’s own statements before the district court, see n. 5, infra, give to his counsel’s statements about vagueness the distinct appearance of a tactical maneuver as opposed to the legitimate expression of any true “confusion” felt by Eucker respecting the meaning of either § 78h or the charges brought thereunder.
. See “Questions Presented”, Appellant’s brief at 1-2.
. Appellant’s brief at 1.
. The following excerpt from the proceedings before the district court is instructive:
“By the Clerk:
Q. Are you the Donald Eucker in the case presently before this Court?
A. Yes, I am.
Q. Do you waive formal reading of the indictment in this matter?
A. Yes, I do.
Q. Do you fully understand the charges in Count 9 of this indictment?
A. Yes, I do.
Q. How do you wish to plead to that count?
A. I wish to plead guilty.”
Transcript of proceedings, March 14, 1975, Appellant’s appendix at 37-38 (emphasis supplied).