opinion: UNITED STATES of America, Plaintiff-Appellee, v. Joel RUBIN, Defendant-Appellant.
  No. 28782
  Summary Calendar.
  United States Court of Appeals, Fifth Circuit.
  Oct. 30, 1970.
  Stanley Jay Bartel, Paul, Landy, Beiley & Bartel, Miami, Fla., for defendant-appellant.
  William A. Daniel, Jr., Asst. U. S. Atty., Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.
  Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
  Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.
  SIMPSON, Circuit Judge:
  Joel Rubin is again before us on matters arising from his conviction on five counts of forging endorsements on certain Series E United States Treasury Bonds.
  In this appeal the appellant contends that the trial court erred in refusing to grant a motion to vacate and set aside the conviction and sentence, or alternatively that the district court erred in refusing to grant a full evidentiary hearing to develop the matters raised in his motion for new trial (the appellant also moved to have the commencement of service of his sentence deferred until after the requested hearing). With respect to the motion to vacate and set aside the appellant asserts that the trial court failed to perform an affirmative duty to ascertain in this situation whether joint representation of appellant and his co-defendant might prejudice appellant’s rights, and further that the appellant’s personally-retained counsel defended him so ineffectively as to deny the appellant his constitutional right to counsel. Appellant also moved the district court for a reduction of sentence, for a full hearing on the motion for reduction, and for disclosure to the appellant of the presentence report. These motions were also denied by the district judge. We are convinced that error is not demonstrated and accordingly, affirm the lower court.
  I.
  MOTION TO VACATE AND SET ASIDE CONVICTION AND SENTENCE
  Appellant, represented by new counsel in this second appeal, contends that he did not have retained counsel until the day before the trial. Filed with the motion was an affidavit by Attorney Joel Lee stating that Lee, already in the case as counsel for a co-defendant, Alpert, volunteered to represent Rubin the day prior to the trial. The affidavit continues that Lee was familiar with the case from his representation of Alpert, and that Lee felt that the defenses for Alpert would also be applicable to Rubin. It also avers that Lee voluntarily represented Rubin earlier at arraignment.
  At the trial the co-defendant Alpert's motion for judgment of acquittal was granted at the close of the government’s case in chief. The trial then continued with Lee representing only Rubin, who was subsequently convicted. Lee represented the appellant in his first appeal before this Court.
  Taking a hindsight view, many convicted defendants may condemn their counsel as ineffective. But the command of the constitution is for a battle, not a victory, as Judge Goldberg pointed out for us in Odom v. United States, 5 Cir., 1967, 377 F.2d 853, 859. The standard was articulated by Judge Wisdom in MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592, 599: “We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance”. We have never deviated from those principles. See United States v. Zarzour, 5 Cir. 1970, 432 F.2d 1 [decided September 23, 1970]; Bendelow v. United States, 5 Cir. 1969, 418 F.2d 42, 50; Odom v. United States, supra; Brown v. Beto, 5 Cir. 1967, 377 F.2d 950, 957-58; and the additional cases collected in footnote 9 to Bendelow, supra, page 50 at 418 F.2d.
  In this post-conviction motion, the burden was on the appellant to demonstrate such facts of incompetence as to entitle him to a full evidentiary hearing. Appellant failed entirely to meet that burden. As pointed out, Attorney Lee filed motions and appeared on behalf of Rubin in pretrial proceedings. It may hardly be urged as critical that he was not formally retained until the day before the trial. Equally unconvincing are appellant’s additional arguments that Lee failed to call several witnesses who would have strengthened his defense, and that Lee injected an erroneous theory into the trial which might have confused the jury. Given that representation of counsel which meets the minimal standards noted above, decisions as to whether or not to call certain witnesses to the stand, whether to ask or refrain from asking certain questions, and the like, are tactical determinations. Errors, even egregious ones, in this respect do not provide a basis for postconviction relief. It appears that any incorrect theories injected into the case were corrected by the court’s charge to the jury. The jury instructions have not been questioned, either on this or on the prior appeal, 414 F.2d 473.
  It is further put forward that appellant’s present counsel would have called to the stand to testify the persons whom Lee failed to call, and that this somehow constitutes “newly discovered” evidence entitling the appellant to a new trial. Appellant bolsters this argument with the statement that subsequent to the trial he learned that Lee had a criminal record. It is also stated that Lee presently stands convicted of counterfeiting. These matters are strained into a contention that this conviction demonstrates that Lee was not a person of integrity who would serve his clients capably and with diligence, and this also is competent “newly discovered” evidence which would entitle appellant to a new trial.
  It is a time-tested rubric of the law that the granting of a new trial is a matter for the sound discretion of the trial court. In Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, we set forth the elements of the showing which a movant must make in order to entitle him to a new trial:
  1. The evidence must be discovered following the trial.
  2. Facts must be alleged from which the court may infer diligence on the part of the movant to discover the new evidence.
  3. The evidence must not be merely cumulative or impeaching.
  4. The evidence must be material.
  5. The evidence must be such that a new trial would probably produce a new result.
  The absence of most, if not all', of these elements in the present case needs no further pointing up.
  Again, in Rodriguez v. United States, 5 Cir. 1967, 373 F.2d 17, we held that where witnesses were neither unknown nor unavailable at the time of trial it could not later be urged that their testimony constituted “newly discovered” evidence.
  Appellant fares no better with respect to his allegations of improper joint representation of Alpert and Rubin by the same trial attorney. Counsel for Rubin in this case was not court-appointed. Lee was selected and employed by appellant, himself a lawyer, with knowledge that he already represented Alpert. Absent here is any allegation whatever that the interests of Rubin and Alpert were conflicting so as to prevent their joint counsel Lee from fully utilizing all defenses available to each defendant. The charge is simply that Lee failed to defend Rubin effectively. No impropriety in the joint representation is made to appear. It is further urged that the trial judge had an affirmative duty to inquire into the propriety of the joint representation. We recognize no such duty under the circumstances here presented.
  II.
  MOTIONS FOR REDUCTION OF SENTENCE AND FOR DISCLOSURE OF PRE-SENTENCE REPORT
  A motion for reduction of a validly-imposed sentence is addressed to the sound discretion of the trial court. Zaffarano v. Blackwell, 5 Cir. 1967, 383 F.2d 719. The appellant was not entitled to a hearing as a matter of right on such motion.
  Rule 32(c), Federal Rules of Civil Procedure provides that the disclosure of presentence reports is discretionary. Appellant may not demand the disclosure of presentenee reports as a matter of right. United States v. Bakewell, 5 Cir. 1970, 430 F.2d 721, rehearing and rehearing en banc denied 430 F.2d 721; United States v. Crutcher, 2 Cir. 1968, 405 F.2d 239; United States v. Trigg, 7 Cir. 1968, 392 F.2d 860; Roeth v. United States, 5 Cir. 1967, 380 F.2d 755.
  Joel Rubin has had his day in court. Unless our courts are to break down completely, there has to be a point at which the rule of finality takes over. That point has been reached and passed in this case.
  Affirmed.
  . Appellant’s first appearance in this Court on direct appeal from his conviction is recorded at 414 F.2d 473. We subsequently denied appellant’s motion for rehearing and motion for stay of mandate. His petition for writ of certiorari was denied by the Supreme Court of the United States on January 12, 1970. 396 U.S. 1011, 90 S.Ct. 571, 24 L.Ed.2d 503.
  Following our denial of rehearing and motion for stay of the mandate, the appellant filed in the court below several motions the denial of which give rise to this appeal. Hearing was held in the district court on October 30, 1969, and the motions were denied. That court had previously directed that the appellant surrender himself on October 20, 1969 to commence the service of his three year sentence.
  . The motion appears to have been viewed by the district court alternatively as a motion pursuant to Title 28, U.S.C. § 2255 and as a motion for new trial. We so treat the motion on appeal.
  . Substantially these same matters were raised by the appellant in his motion for rehearing in this Court and in his petition for writ of certiorari directed to the Supreme Court.
  . See footnote 2, supra.
  . The record reveals that Lee had also filed pretrial motions after arraignment on behalf of both Rubin and Alpert, but appellant’s motion states that these motions in his behalf were filed as an accommodation and without fee by Lee.
  . We recognize that some recent authorities argue that presentence reports should be available to the defendant as a matter of right. See American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures, Section 4.4; Lehrieh, The Use and Disclosure of Pre-sentence Reports in the United States, 47 F.R.C. 225. See also State v. Kunz, 55 N.J. 128, 259 A.2d 895 (1969).
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.