(Concurring):
I concur in Judge Waterman’s characteristically thorough and carefully-considered opinion. However, insofar as it holds that Indiviglio was not denied effective assistance of counsel, I concur not merely because his attorney’s assistance meets the “shock the conscience — farce and mockery of justice” standard that remains the criterion in this Circuit, see United States v. Wight and decisions cited at page 627, supra, but because it also satisfies the more liberal and lenient standards adopted by 9 out of the 10 other circuits. United States v. DeCoster, 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (D.C. Cir. 1973) (“reasonably competent assistance”); United States v. Bosch, 584 F.2d 1113, 1120-21 (1st Cir. 1978) (“reasonably competent assistance”); Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (en banc) (“customary skill and knowledge”); Marzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (“normal competency”); United States v. Gray, 565 F.2d 881, 887 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978) (“reasonably effective counsel”); United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975), cert. denied sub nom. Pruitt v. United States, 429 U.S. 838, 97 S.Ct. 107, 50 L.Ed.2d 104 (1976) (“reasonably effective assistance”); United States ex rel. Williams v. Twoney, 510 F.2d 634, 641 (7th Cir.), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975) (“minimum standard of professional representation”); Morrow v. Parratt, 574 F.2d 411, 412-13 (8th Cir. 1978) (“customary skills and diligence”); Cooper v. Fitzharris, 586 F.2d 1325, 1327 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979) (“reasonably competent and effective”).
In view of the fact that 9 circuits have adopted a different test along the lines of “reasonable competence,” leaving only the Second and Tenth Circuits adhering to the old rule, I believe that in an appropriate case this court should re-evaluate the standard to be applied, as we suggested in Rickenbacker v. Warden, Auburn Correctional Facility, 550 F.2d 62, 66, 67 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977). However, this is not an appropriate case for the reason that the conduct of Indiviglio’s counsel satisfied all of the above tests.