concurring:
It is a truism of the law that effective justice can only be achieved through the cooperative effort of those who seek it and those who dispense it. For this reason, litigants should not be permitted to play “fast and loose with the courts” by taking inconsistent positions in related proceedings. Selected Risks Insurance Co. v. Kobelinski, 421 F.Supp. 431, 434 (E.D.Pa.1976) (quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir. 1953)). Because I believe that this is what appellant is doing in the *228instant case, I write separately to indicate my accord with Judge Timbers, in whose well-reasoned opinion I fully concur.
Five years ago, appellant argued in this Court that his sentence on the conspiracy count should be vacated because the conspiracy was a lesser included offense in the continuing criminal enterprise and punishment under both counts constituted double jeopardy. United States v. Sperling, 560 F.2d 1050, 1053 (2d Cir. 1977). Appellant was fully familiar with the well-established doctrine, sometimes referred to as “judicial estoppel”, which precludes a litigant from leading a court to find one way in one proceeding and then, because his interests have changed, leading the court to find another way in a subsequent proceeding. Indeed, in his brief on that appeal, appellant quoted the doctrine as it is set forth in In re Johnson, 518 F.2d 246, 252 (10th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 125 (1975).
With complete awareness of where he was going, appellant argued that, because of his conviction on the continuing criminal enterprise count, his sentence on the conspiracy count must be vacated. Appellant assured the Court that “[i]f Sperling prevails he will still be saddled with a sentence of life without parole.” On that ground, and on that ground alone, the 1977 panel vacated appellant’s sentence on the conspiracy count. 560 F.2d 1060. Having accomplished this, appellant is now back in our Court seeking to have his continuing criminal enterprise conviction vacated, thus knocking the props from under the argument which he presented successfully on his former appeal.
Moreover, the grounds upon which he bases his motion to vacate are inconsistent with his former arguments directed to the conspiracy count. Sperling’s role in the conspiracy, which ran from May 1, 1971 to mid-April 1973, was described in our 1974 opinion as follows:
Evidence concerning the activities of Sperling and the Sperling branch of the conspiracy was adduced primarily through the testimony of Joseph Conforti, a former member of the conspiracy. Conforti’s testimony, corroborated by that of Cecile Mileto and Zelma Vance, established that 13 of the defendants and 2 of the co-conspirators named in the indictment were participants in the narcotics operations directed by Sperling. These witnesses described approximately 69 meetings, conversations, drugs sales or transfers beginning in early 1971 and continuing through April 1973 involving members of the Sperling group. As with the Pacelli branch of the conspiracy, each of Sperling’s workers had a definite role in the conspiracy, including Goldstein and Schworak who delivered narcotics at Sperling’s direction. Sperling supervised and directed the purchase, processing and sale of narcotics within his sphere of control.
(506 F.2d at 1330-31).
On his 1977 appeal, appellant argued that the conspiracy and the continuing criminal enterprise occupied the same time span, that the persons who allegedly acted in concert to commit multiple violations of the narcotics laws were also named as conspirators in the conspiracy count, and that the objects of the conspiracy and the continuing criminal enterprise were the same, i.e., the violation of 18 U.S.C. § 841. Appellant stated in his brief:
Thus the Court told the jury that, as to Count 1, Sperling commanded the services of six particular persons, and that, as to Count 2, he occupied a position of organizer, supervisor and manager of the same six persons. This effectively cemented the merger of Counts 1 and 2, as to Sperling, for punishment purposes upon conviction, (emphasis in original)
Today, however, appellant argues that he stands convicted of “criminal acts not charged at trial, and never found by a jury.” I agree with Judge Timbers that this argument should be rejected on the merits. I also agree that there is no need to reach the merits. Whether we base our holding on a theory of estoppel, waiver, preclusion, or abuse of writ, we should not permit such piecemeal, inconsistent, and *229mutually exclusive attacks on a judgment of conviction as have occurred in this case.1 For civil cases applying one or more of these concepts, see Davis v. Wakelee, 156 U.S. 680, 689,15 S.Ct. 555, 558, 39 L.Ed. 578 (1895), Roth v. McAllister Bros., Inc., 316 F.2d 143, 145 (2d Cir. 1963), Hart v. Mutual Ben. Life Ins. Co., 166 F.2d 891, 894 (2d Cir. 1948), Smith v. United States, 466 F.2d 535, 536 (6th Cir. 1972), and Gottesman v. General Motors Corp., 222 F.Supp. 342, 344 (S.D.N.Y.1963), cert. denied, 379 U.S. 882, 85 S.Ct. 144, 13 L.Ed.2d 88 (1964). For criminal cases, see United States v. Kramer, 289 F.2d 909, 919-20 (2d Cir. 1961), United States v. Gremillion, 464 F.2d 901, 906-07 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 683, 34 L.Ed.2d 672 (1972), and Salta v. United States, 44 F.2d 752, 753 (1st Cir. 1930). For habeas corpus cases, see Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir. 1975), Bryans v. United States, 374 F.2d 505, 506 (5th Cir. 1967), cert. denied, 387 U.S. 903, 87 S.Ct. 1705, 18 L.Ed.2d 639 (1967), and Crawford v. Cox, 307 F.Supp. 732, 736 (W.D.Va.1969).
. On June 3, 1977, I sent a memo to Judges Waterman and Motley, the panel majority in United States v. Sperling, 560 F.2d 1050, in which I said:
If my crystal ball is working properly, I can see [Sperling] moving to dismiss the section 848 count as soon as the conspiracy count is gone.
It was that memo which prompted Judge Waterman to provide for reinstatement of the conspiracy sentence in the “unlikely event” that Sperling’s conviction on the continuing criminal enterprise count should be vacated. If this “unlikely event” were to occur, I wouldn’t need a crystal ball to predict what would happen next. Sperling’s counsel has already indicated that, if successful on this appeal, he will fight any attempt to reinstate Sperling’s sentence on the conspiracy count.