author: ENGEL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff Appellee, v. Phillip J. MATTUCCI et al., Defendants-Appellants.
    No. 73-1900.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 1, 1974.
    Decided Aug. 22, 1974.

      Thomas A. Livingston, John L. Doherty, Pittsburgh, Pa., for appellants; Dennis J. Clark, Pittsburgh, Pa., on brief.
    W. Robinson Watters, Asst. U. S. Atty., for appellee; William W. Milli-gan, U. S. Atty., Columbus, Ohio, on brief.
    Before WEICK, McCREE and EN-GEL, Circuit Judges.
   ENGEL, Circuit Judge.

The five appellants in this matter were convicted of operating an illegal gambling business in violation of 18 U. S.C. § 1955, a part of Title VIII of the Organized Crime Control Act of 1970.

To constitute the basis for an offense under Section 1955, the gambling business must violate a relevant state or local law, have five or more persons involved in its conduct, and either be in substantial continuous operation for more than 30 days or have a gross revenue of $2,000 or more in a single day.

Commencing August 18, 1972 government agents conducted a surveillance of the Midway Club, located in Steuben-ville, Ohio, which culminated in a raid of the premises on October 12, 1972. Defendants-Appellants were subsequently charged with violating the federal act.

The evidence presented to the jury revealed that Phillip Mattucci was the owner of the Midway Club and that defendants Betras, DeBellis and Barilla were employed by Mattucci as dealers in a gambling game that was operated on the premises. The fifth defendant, James Simone, was essentially a guard and a doorman. The gambling activity carried on at the Midway Club was a form of dice game known as “Barbut”, a game in which customers bet against one another but not against the house. The proofs showed that in a Barbut game, the house does not itself gamble, but provides the facility and the dealers who actually handle the dice. The house takes a percentage of the winnings of each game. The minimum bet in any given game at the Midway Club was $5 on a single throw of the dice and the pot size varied greatly. The winner would pay to the house 2 and y2 percent of the amount he won, exclusive of his own bet. Mattucci testified that the Barbut game was the only source of his $38,000-$40,000 annual income.

Appellants assign ten claims of error in their appeal to this court.

I. VENUE

. First, appellants claim that the trial court abused its discretion in denying their motion for a change of venue to Steubenville, Ohio. The case was in fact tried in Columbus, some 50 miles west of Steubenville. While Steuben-ville is the seat of court within the Eastern Division of the Southern District of Ohio, and the crime charged was alleged to have occurred there, both Steubenville and Columbus are located within the Southern District. We hold that the trial judge did not abuse his discretion in ordering trial at Columbus, particularly when the objection was made for the first time on the day assigned for trial, and immediately preceding the impanelling of the jury. Rule 22 of the Federal Rules of Criminal Procedure provides:

“A motion to transfer under these rules may be made at or before arraignment, or at such other time as the court or these rules prescribe.”

The motion was, therefore, not timely, and the judge did not abuse his discretion in denying it. Cagnina v. United States, 223 F.2d 149 (5th Cir. 1955); United States v. Tremont, 351 F.2d 144 (6th Cir. 1965); United States v. Mc-Master, 343 F.2d 176 (6th Cir. 1965).

II. PROSECUTORIAL REMARKS

Appellants claim that certain remarks made by the government attorney during his summation to the jury were inflammatory and incurably prejudicial to their rights. In closing argument, counsel for the government reviewed for the jury the testimony of the witnesses to the gambling operation at the Midway Club. He further stated that “I suppose we could have brought on twenty or thirty more.” If the statement was improper at all, it was certainly harmless in the light of proofs which tended to show exactly that.

Objection was also made to the reference by government counsel in his final argument, to “A big gambling operation going on like this,” and the statement that, “The pots must be pretty big to attract out-of-state gamblers”, as well as similar comments. We conclude that while the government may have struck hard blows with such comments, they were not foul, Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and thus, did not violate defendants-appellants’ right to a fair trial.

III. SUFFICIENCY OF EVIDENCE UNDER SECTION 1955

Appellants claim that their motion for judgment of acquittal should have been granted because there was insufficient evidence to show the involvement of “five or more persons” within the meaning of 18 U.S.C. § 1955(b) (1) (ii).

The roles played by Mattucci, De-Bellis, Betras and Barilla were clearly established at trial and were sufficient to bring them within the prohibition of the Act if the five person requirement were met. Mattucci was the owner of the business and the others worked as dealers. It is claimed, however, that the proved activities of appellant James Simone were insufficient as a matter of law to bring him within the statute as one of “five or more persons who conduct, finance, supervise, direct or own such [gambling] business”.

The entrance to Midway Club was set up with a buzzer system and had a peephole in the door. Simone was a doorkeeper and guard, and was employed primarily to keep an eye on customers as they arrived and departed. He was paid $100 a week. Nick Contes, a Steuben-ville tavernowner who frequented the Club, testified that Simone would occasionally answer the door, “or, if somebody wanted a coke or hamburger, he would facilitate them”. Contes further testified that a person who came to gamble or get a bite to eat could enter “as long as he was recognized, yes”.

While at one point, Mattucci himself testified that he had given Simone orders to “let everybody in”, he also stated that part of Simone’s duties were “to keep out drunks, and to guard against a hold-up, because it would be three o’clock in the morning and we are off a beaten path. We are near a river bank”. When cross-examined by Simone’s counsel, Mattucci testified:

“QUESTION: Did he ever have authority of letting people into that club without checking with you first ?
A. That’s right. It was never up to him.
Q. Never up to him.
A. Never. He could never let nobody in.”

While the testimony was thus conflicting as to what Simone’s exact role was, we are of the opinion that a jury question was presented as to whether his activities were such as to bring him within the statute as one who “conducts” an illegal gambling business. In United States v. Palmer, 465 F.2d 697, 699 (6th Cir. 1972), we recognized that Congress intended the word “conduct” to refer to both “high level bosses and street level employees”. The Third Circuit has also broadly defined the term:

“The meaning seems perfectly clear to us. A street runner for a numbers business ‘conducts’ that business in the sense that he carries it on. Indeed without him it could not be carried on. Before the gambling enterprise may be deemed of sufficient, magnitude to warrant federal proscription it must be carried on by at least five people, including its street level employees, its managers and its owners. Its customers are excluded from the numerical count. All other participants are included. The statute is not vague.” United States v. Riehl, 460 F.2d 454, 459 (3rd Cir. 1972)

Similarly, the Fifth Circuit, in a comprehensive opinion, reviewed the entire legislative history of the Act and concluded that the issue of whether the activities of a certain defendant brought him within the meaning of the Act, was properly submitted to the jury:

“Defendant Littlefield was a guard or watchman for the business. His duty was to admit people to the club. However, he had no discretion as to who was to be admitted. He was on the premises at all times, lived there and used the premises for his domicile.
The thrust of appellants’ argument is that Congress did not intend to include employees such as Littlefield . as ‘persons who conduct, finance, manage, supervise, direct, or own all or part’ of the gambling business and that mere employees cannot satisfy the necessary requirements. Appellants’ contentions are not well taken.” United States v. Harris, 460 F.2d 1041, 1049 (5th Cir. 1972)

We conclude, therefore, that there was sufficient evidence from which the jury could find that Simone was one who conducted the gambling business, and hence that the five person requirement of 18 U.S.C. § 1955(b) (1)(ii) was met. The trial judge properly denied defendant appellants’ motion for judgment of acquittal.

IV. JURY INSTRUCTIONS

Three of defendants-appellants’ claims of error challenge the propriety of the judge’s charge to the jury. On review the issue is whether the instructions, taken as a whole, fairly and adequately submit the issues in the case to the jury. Gradsky v. Sperry Rand Corp., 489 F.2d 502 (6th Cir. 1972). Our examination of the entire charge as given satisfies us that it was complete, fair and free from error.

Appellants assert that the trial court misled the jury by defining the word “conduct” as a noun, whereas Section 1955 utilizes the term as a verb. The trial judge instructed the jury:

“The word ‘conduct’ as it is used in connection with the gambling business means and includes any action, function or duty performed or carried out by any person or persons which is necessary to the ordinary operation of such business.”

While the form of the word used in the instruction was a noun, the correct meaning of the term as used in the statute was made clear in that instruction and throughout the charge. The jury could not have been misled or confused by this semantic distinction.

Appellants also claim that the trial judge erred in refusing to grant a requested charge submitted by defendants which employed the following language from United States v. Harris, supra:

“A mere employee who has no ownership in such business and who is also without power to conduct, finance, manage, supervise, or direct such business, could not be considered ■ by you as one of the number of persons necessary to prove a violation of the federal statute under which these defendants are charged.” United States v. Harris, 460 F.2d at 1049-1050.

We are of the opinion that the charge as a whole adequately instructed the jury as to the degree of defendants’ participation required under the Act. Thus, it was unnecessary for the trial court to give, in addition, the negatively worded charge as requested by appellants.

Finally, appellants claim that the following instruction was an incorrect statement of the law:

“It is not necessary for the Government to prove that each and every defendant participated in the illegal gambling business for a period in excess of thirty days, but rather that the Government proved beyond a reasonable doubt that said business was in substantially continuous operation for a period in excess of thirty days, and that the defendants knowingly, willfully, and intentionally performed acts to conduct, finance, manage, supervise or direct said business.”

We disagree. The statute, 18 U.S.C. § 1955(b) (1) (iii) clearly makes the thirty day requirement a part of the definition of illegal gambling business and not a specific requirement as to the duration of individual participation by persons involved in such business.

V. OTHER ASSIGNMENTS OF ERROR

Appellants make four additional claims of error, all of which we find to be without merit.

After three of the defendants had rested their cases, the defendant Mattucci took the stand and testified in his own defense. The remaining defendants assert that his testimony was inadmissible as to them and that the jury ought to have been so instructed. The assertion is not well taken. If testimony is otherwise admissible, it is not rendered less so because the witness testifying was also a co-defendant or because it was offered as part of his own defense rather than as part of the government’s case-in-ehief. Appellants have confused the issue of admissibility of out-of-court statements of co-defendants with that which is given in open court and is thus subject to cross-examination. Cf. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Appellants further claim that the trial court erred in permitting the jury to consider certain sections of the Ohio Revised Code, as a basis for a federal offense. The district court read to the jury the four provisions of Ohio law set forth in the indictment. Appellants particularly claim that no evidence was presented to establish that they had violated § 2915.06, which prohibits playing a game for money, because neither they nor the house actually wagered. We do not agree. The evidence established that the defendants were engaged in a business in which games were played for money and from which the business profited. This is enough. The evidence fully justified the court’s instructions on all four sections of Ohio law.

Appellants’ claim that the trial court erred in admitting Mattucci’s payroll records is also without merit. We find that these records were properly admitted as business records under 28 U.S.C. § 1732. As to appellants’ claim that the payroll summaries did not constitute the best evidence, we note that the record does not reflect an attempt on defendants’ part to obtain or inspect more original records or that defendants were denied the right to cross-examine the accountant concerning the making and accuracy of the payroll documents. See U. S. v. Cummings, 468 F.2d 274 (5th Cir. 1972). In any event, the evidence was primarily cumulative and we find no prejudice from its admission.

Finally, appellants claim that they were not given fair warning of the illegality of their business, and therefore, the government ought to have been estopped from indicting and prosecuting them. In support of that contention, appellants introduced proof that they had previously sought advice from government agents concerning the legality of the Barbut game. No claim is made that the government agents entrapped defendants, or even that they erroneously advised defendants that their conduct was legal. The claim is that they failed to advise defendants of the illegality of the Barbut game under § 1955. The responsibility for determining what conduct shall be illegal under federal law rests with Congress, and Congress bears the burden of doing so with definiteness. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Thus, Title 18 U.S.C. § 1955 itself provided defendants with the fair warning to which due process entitled them, and no additional burden lay with the government to protect appellants from prosecution under a valid law.

Affirmed.

      . 18 U.S.C. § 1955 provides, in pertinent part:
      § 1955. Prohibition of illegal gambling businesses
      (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
      (b) As used in this section—
      (1) “illegal gambling business” means a gambling business which—
      (i) is a violation of the law of a State or political subdivision in which it is conducted ;
      (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
      (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
      (2) “gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.
      (3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States. * * * * *

      . The sections of the Ohio Revised Code relied on in the indictment here are :
      2915.01 Permitting room to be used for gambling.
      No person shall keep a room, building, arbor, booth, shed, tenement, canalboat, or other watercraft, to be used or occupied for gambling, or knowingly permit it to be so used or occupied, or being the owner thereof rent it to be so used or occupied. An owner of such building, tenement, or watercraft knowing that a device is used or kept therein for gambling, who does not forthwith make complaint against the person so using or keeping it has knowingly permitted it to be used and occupied for such purpose.
      Whoever violates this section shall be fined not less than thirty nor more than five hundred dollars or imprisoned not less than ten nor more than thirty days, or both.
      2915.06 Betting. Playing a game or making bet for money.
      No person shall play a game for money or other thing of value or make a wager for money or other thing of value.
      Whoever violates this section shall be fined not more than one hundred dollars or imprisoned not less than ten days nor more than six months, or both.
      2915.14 Common gambler.
      No person shall engage in gambling for a livelihood, or be without a fixed residence and in the habit or practice of gambling. Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars and imprisoned not less than ten nor more than ninety days, and shall give security in the sum of five hundred dollars against further violation of this section for one year.
      2915.15 Exhibiting gambling devices for gain.
      No person shall keep or exhibit for gain or to win money or other property, a gambling table, or faro or keno bank, or a gambling device or machine, other than as is defined in sections 2915.10, 2915.12 and
      2915.16 of the Revised Code, or keep or exhibit a billiard table for the purpose of gambling or allow it to be so used. Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars and imprisoned not less than ten nor more than ninety days, and shall give security in the sum of five hundred dollars against further violation of this section for one year.

      . See footnote 2, supra.


source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John M. HERBERT and Thomas W. Moore, Defendants-Appellants.
    Nos. 73-1887, 73-1888.
    United States Court of Appeals, Tenth Circuit.
    Argued July 9, 1974.
    Decided Aug. 14, 1974.

      J. Terry Wiggins, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    Ronald F. Weiszmann, Golden, Colo., for defendants-appellants.
    Before BREITENSTEIN, MC-WILLIAMS and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

John Herbert and Thomas Moore were convicted of knowingly possessing marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1). Upon trial no witnesses were called by either defendant, and hence testimony concerning the events which gave rise to the present prosecution necessarily comes from the Government’s witnesses. At the outset we would observe that evidence .of guilt was overwhelming and that the matters here sought to be raised as grounds for reversal tend to be minuscule, when viewed in context. The background facts will only be briefly developed.

Herbert and Moore, residents of Boulder, Colorado, sought to purchase some marijuana' for purposes of resale. Somehow they made contact with Jay Corkill and Henry Wheeler, Arizona residents, who had marijuana for sale. Herbert and Moore decided that the delivery would take place at a residence located at 3055 So. Lincoln, in Englewood, Colorado, where friends of theirs were then living. One of the occupants of 3055 So. Lincoln drove to Boulder and brought Herbert and Moore to the Lincoln street address. Two days later, on April 17, 1973, Corkill and Wheeler arrived in the Denver area in a pickup truck with 385 pounds of marijuana. Moore and another of the Lincoln street residents went to a local Denver motel and led Corkill and Wheeler in their pickup truck to 3055 So. Lincoln. The 385 pounds of marijuana was then taken from the truck and placed in the garage on the rear of the premises.

The Government knew in advance that there might be a delivery of marijuana at 3055 So. Lincoln on the day in question. Accordingly, Government agents had set up a surveillance of the premises. These agents, for example, saw Moore leave and return with Corkill and Wheeler in the pickup camper truck. Other agents saw Corkill and Wheeler, aided by Moore, unload the bricks of marijuana into the garage. Other witnesses who were then living at the Lincoln street residence testified that Herbert was inside the garage, assisting, as the bricks were being unloaded.

Government Agent Ashton and his informant then contacted Herbert at the Lincoln street address shortly after the delivery of marijuana occurred. While the evidence on this is a bit sketchy, a fair inference is that this informant had previously been in touch with Herbert in an effort to arrange a sale of marijuana. In any event, Ashton and his informant called on Herbert at the Lincoln street address and discussed a possible sale. Herbert indicated to Agent Ashton that there was approximately 400 pounds of marijuana for sale, and that the price would be $115 per pound. Ashton got a sample of the marijuana from Wheeler, and then he and his informant left, saying they would return later and consummate the sale. Another Government agent, one Kiefer, then caused a search warrant to issue, and a search of the premises was conducted a few hours later on the same day, resulting in the Government’s seizure of the 385 pounds of marijuana which formed the basis for this prosecution.

Seven persons were indicted as a result of this investigation, including Herbert and Moore, as well as Corkill and Wheeler. The other three defendants, who were then living at the Lincoln street premises, pleaded guilty to a lesser offense before trial, and upon trial each testified in behalf of the Government. Midway through the trial, Corkill and Wheeler pleaded guilty. The Government’s request to then call Corkill and Wheeler as witnesses against Herbert and Moore was denied by the trial court. The jury convicted Herbert and Moore of possessing marijuana with an intent to distribute and this appeal in their behalf followed. We affirm.

Perhaps the main issue on appeal relates to the refusal of the trial court to require the Government to reveal the name of the informant who accompanied Agent Ashton to the Lincoln street address and who was present when Ashton and Herbert discussed a possible sale of the marijuana. The trial court so ruled, first during trial, and later upon remand to determine the applicability of United States v. Martinez, 487 F.2d 973 (10th Cir. 1973). Counsel still asserts that Martinez dictates a reversal of the instant case. We do not agree.

In the first place, this argument concerning the identity of the informer can only be made by the one defendant, Moore, since the record indicates quite clearly that Herbert, as well as his counsel, were aware of the informant’s identity and further knew that as of the date of the trial the informant’s whereabouts was apparently unknown. Furthermore, while the conversation which the informant heard tended to implicate Herbert, it had little or nothing to do with Moore. It is difficult for us to see just how the informant’s testimony could have been helpful to Moore in defending against a charge of possession of marijuana with an intent to distribute. Evidence of such possession was not really in dispute, and the informant could offer nothing which would controvert the other testimony that Moore, for example, had assisted in the unloading of the marijuana into the garage. No request for the identity of the informant was made by Moore till the trial was well under way and the showing made as to the necessity for such information was not convincing to the trial court. Nor does it convince us. The foregoing are but a few of the differences between Martinez and the instant ease. Under the circumstances, the trial court did not err in refusing to require the Government to identify its informant. The instant case bears no resemblance to Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

Prior to trial Herbert sought to suppress the use at trial of the 385 pounds of marijuana on the grounds that the search warrant was improperly issued. As mentioned above, the warrant issued on the basis of the. affidavit of Agent Kiefer, who in turn relied on information given him by an informant, presumably the one who accompanied Agent Ashton to the Lincoln street address. Kiefer’s affidavit set out his reasons for believing and relying upon the information given him by the informant. The trial court overruled the motion to suppress and this ruling is now assigned as error. We find no error.

Counsel does not really argue that the affidavit is itself insufficient. Rather, he asserts that the Government did not have to rely upon information acquired from an informer, since Agent Ashton had personal knowledge which should have been the basis for the search warrant. We do not know the precise sequence of events as they occurred on April 17, 1973, but the situation was obviously developing quite rapidly. In any event, the affidavit of Agent Kiefer was sufficient to support the issuance of the warrant, and the fact that the Government might have relied on Agent Ashton for its search warrant is immaterial.

The indictment charged the defendants in one count with distributing marijuana, and, alternatively, with possessing marijuana with an intent to distribute. Section 841(a)(1), 21 U.S.C. sets forth several ways in which the statute may be violated, including, of course, both distribution and possession with an intent to distribute. Such being the case, it is proper to allege in the conjunctive, without the indictment being duplicitous. Cordova v. United States, 303 F.2d 454 (10th Cir. 1962), and Troutman v. United States, 100 F.2d 628 (10th Cir. 1988).

Moreover, as we read the instructions, the ease went to the jury on possession only. The trial court in its instructions did read the statute, and the indictment to the jury, both of which referred to the actual distribution of marijuana, as well as possession with an intent to distribute. However, in thereafter defining the essential elements of the crime the trial court clearly indicated that the defendants no longer were charged with the actual distribution of the marijuana, but only with the possession of marijuana with an intent to distribute. Certainly there was no evidence of distribution, unless Wheeler’s giving of a small sample to Agent Ash-ton be deemed such. In any event, the trial court instructed the jury that the material allegations were the possession of marijuana, coupled with a specific intent to distribute. The trial court also instructed the jury as to the lesser offense of mere possession of marijuana without an intent to distribute. In such circumstances the trial court did not err in refusing to give instructions tendered by the defendants to the effect that they could not be found guilty of any offense unless there was an actual distribution of the marijuana.

The other matters here urged as grounds for reversal are also without merit, and extended discussion thereof is not warranted. Herbert was not entitled to a separate trial. This was a joint venture between Herbert and Moore and it was proper to jointly indict them and to jointly try them. The Government’s case did not include any confessions or admissions against interest on the part of any defendant. We thus perceive no basis on which to hold that the trial court abused its discretion. United States v. Davis, 436 F.2d 679 (10th Cir. 1971), and United States v. Fairchild, 435 F.2d 972 (10th Cir. 1970), cert. denied, 401 U.S. 901, 91 S.Ct. 827, 27 L.Ed.2d 800 (1971).

Neither was defendants’ cross-examination of certain of the Government’s witnesses significantly abridged by the failure of the trial court to require these witnesses to reveal their home addresses. See Smaldone v. United States, 484 F.2d 311 (10th Cir. 1973).

Lastly, there was no error in permitting’Agent Ashton to testify, even though he had remained in the courtroom after the trial court on its own suggestion invoked the exclusion rule. In this connection there was some misunderstanding or oversight since there admittedly was no specific request that Agent Ashton be allowed to remain. We note, however, that customarily the Government is allowed to keep one of its witnesses in the courtroom during the trial, and, but for this oversight, permission would no doubt have been given to keep Agent Ashton in the courtroom during the trial. United States v. Stidham, 459 F.2d 297 (10th Cir. 1972). In any event, this is a discretionary matter, and in our view the trial court did not abuse its discretion in allowing Agent Ashton to testify. Oliver v. United States, 121 F.2d 245 (10th Cir. 1941), cert. denied, 314 U.S. 666, 62 S.Ct. 124, 86 L.Ed. 533 (1941).

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ora Ray ROBINSON, Defendant-Appellant.
    No. 73-1914.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 14, 1974.
    Decided Aug. 23, 1974.

      Max Tyson, Chicago, 111., for defendant-appellant.
    Henry A. Schwarz, U.S. Atty., Frederick J. Hess, Asst. U.S. Atty., E. St. Louis, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, KIL-EY, Senior Circuit Judge, and HOFFMAN,  Senior District Judge.

       Senior District Judge Julius J. Hoffman of the Northern District of Illinois sitting by designation.

   JULIUS J. HOFFMAN, Senior District Judge.

Defendant, convicted of robbing a bank while armed with a sawed-off shotgun, has appealed on the sole ground that his trial attorney was incompetent, depriving him of his right to effective assistance of counsel as guaranteed by the Sixth Amendment.

The fact that defendant was convicted on all three counts of the indictment offers no support for any inference of incompetence. The prosecution’s case was strong. Two bank employees directly identified defendant in the courtroom as one of the robbers and as the bearer of the illegal weapon. An automobile matching the description of the getaway car was pursued by the state police until it was abandoned, and its occupants fled into the woods. Defendant was arrested in that vicinity. Part of the stolen money and a sawed-off shotgun were found in the abandoned car, and more of the stolen money was recovered in the woods near where defendant was seized. Fingerprints in the car and on one of the stolen bills were identified by a government expert as the defendant’s prints.

The harmless-error doctrine applies with diminished rigor when the right to counsel is at stake, as Mr. Justice Stewart observed in his concurrence in Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When no lawyer appears to represent the defendant, and his request for legal representation is wholly denied, the proceedings are tainted from their roots, and there is no room for “nice calculations as to the amount of prejudice” flowing from the denial. See Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). But where^ as here, a defendant is represented by counsel, present and participating throughout the proceeding, the strength of the case may at least repel the temptation to conclude that the fact of conviction itself demonstrates that counsel was ineffective. The defensive strategy and its lack of success must be evaluated in the light of the strengths and weaknesses of the offense, and “the quality of legal representation cannot be abstractly measured without reference to the merits of a defendant’s case .” United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643 (2 Cir. 1974).

For self-evident reasons, the courts are constrained to avoid substituting their hindsight views of wiser strategy for counsel’s practical decisions in the hustings. “Counsel’s concern is the faithful representation of the interests of his client and such representation frequently involves highly practical considerations as well as specialized knowledge of the law.” Tollett v. Henderson, 411 U.S. 258, 268, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). Accordingly, the appellant’s burden is heavy. “Unless a strong showing is made that conduct of counsel virtually deprived defendant of a trial, matters of trial conduct and tactics adopted pursuant to defense counsel’s professional opinion on the merits of the case should not be subjected to critique by a court of appeals.” United States v. Bella, 353 F.2d 718, 719 (7 Cir. 1965). See United States v. Stevens, 461 F.2d 317 (7 Cir. 1972). Weighed in the balance against these cautions, the defendant’s claims of incompetent counsel fail to meet the requisite standard as repeatedly applied by this Court:

“Retrospective disappointment with the conduct of the hearing does not prove deprivation of one’s constitutional right to assistance of counsel. [Citations omitted.] Nor is perfection guaranteed. The essential integrity of the proceedings was preserved. This was no travesty of justice. See United States v. Dilella, 354 F.2d 584, 587 (7 Cir. 1965), and cases there cited.” Calhoun v. United States, 454 F.2d 702-703 (7 Cir. 1971), cert. denied 405 U.S. 1019, 92 S.Ct. 1302, 31 L.Ed.2d 482 (1972). See also United States v. Stahl, 393 F.2d 101, 103 (7 Cir. 1968), cert. denied 393 U.S. 879, 89 S.Ct. 181, 21 L.Ed.2d 152 (1969); Johnson v. United States, 422 F.2d 555 (7 Cir. 1970).

Here the record contains nothing to indicate that the trial was a total sham or mockery. See United States v. Ingram, 477 F.2d 236 (7 Cir. 1973). The proceeding was not mere farce. United States ex rel. Feeley v. Ragen, 166 F.2d 976, 980-981 (7 Cir. 1948).

The particulars offered to support the claimed incompetence fall far short of the mark. Defendant’s trial counsel failed to make an opening statement, “but surely this is trivial, and [he] was acting well within the bounds of competence in waiting to see how the state’s case unfolded.” United States ex rel. Crispin v. Mancusi, 448 F.2d 233, 237 (2 Cir. 1971), cert. denied 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 288 (1971). A second specification urges that incompetence is shown by counsel’s failure to object to certain hearsay testimony, particularly the testimony of the arresting and investigating officers containing mentions of orders they received, to supply a background explanation for their actions. Competent defense counsel may well share the view that frequent and repeated objections, especially on hearsay grounds, serve only to alienate and antagonize the jury. The failure to object thus does not demonstrate incompetence. See United States v. Goldsmith, 483 F.2d 441 (5 Cir. 1973); United States v. Benthiem, 456 F.2d 165 (1 Cir. 1972). In the same vein, defendant argues that his counsel was incompetent because he failed to conduct an aggressive cross-examination of the government’s fingerprint expert. It is not incompetence, however, for trial counsel to conclude that a detailed cross-examination would be counter productive, emphasizing and accentuating the adverse evidence. For such reasons, we have held that the absence of cross-examination does not establish ineffective assistance of counsel. See United States v. Radford, 452 F.2d 332 (7 Cir. 1971). Finally, defendant complains that his trial counsel failed to move for an order to exclude witnesses, to prevent the second bank employee called to the stand from hearing the testimony of the first bank employee who immediately preceded her as a witness. The record does not disclose whether or not the second witness was present in the courtroom during the testimony of the preceding witness, and there is no contradiction of the United States Attorney’s report in the brief that the prosecution had voluntarily agreed to exclude witnesses. In any event, the matter rests within the discretion of the trial judge, and does not involve prejudice sufficient to warrant reversal. See Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893).

In sum, we find no support for a conclusion that defendant, as a practical matter, lacked the aid of a lawyer. His attorney made a brief but emphatic closing argument, concentrating upon the issues of identification. His trial tactics remain a matter for his judgment, not ours. Accordingly, the judgment must be affirmed.

Affirmed.


author: STEPHENSON, Circuit Judge. LAY, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Edward Eugene DACE, Appellant. UNITED STATES of America, Appellee, v. Vernon Henry SCHNEIDER, Appellant.
    Nos. 73-1689, 73-1763.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 16, 1974.
    Decided June 10, 1974.
    Rehearings and Rehearings En Banc Denied Sept. 26, 1974.
    Lay, Circuit Judge, filed a dissenting opinion.

      Donald L. Wolff, Clayton, Mo., for appellant.
    Irl B. Baris, St. Louis, Mo., for appellant, Schneider.
    Terry I. Adelman, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

These appeals challenge the consecutive sentences imposed on mail fraud charges, and the refusal of the district court to permit appellants to examine presentence investigation reports. We affirm.

Appellants were charged in a 26-count indictment with devising a fraudulent insurance claim scheme to obtain money from the Hartford Insurance Group and using the mails in execution thereof in violation of Title 18 U.S.C. § 1341.

Appellant Dace pled guilty to three counts out of twenty-four counts in which he was named as a defendant. He was sentenced to five years’ imprisonment on each of two counts to run consecutively (total of ten years) and five years’ probation to follow. Appellant Schneider pled guilty to three counts out of seven in which he was named defendant and received a like sentence.

After commencing the service of their respective sentences, each of the appellants filed a motion for reduction of sentence which was denied

Severity of Sentences

Appellants charge that the district court abused its discretion in sentencing defendants to the maximum period of confinement on each of two counts, to be served consecutively, followed by a five-year probation period on a third count.

In Woosley v. United States, 478 F.2d 139 (CA 8 1973), this court sitting en banc reversed a sentence as excessive, stating at 147 as follows:

We hold that we possess the power to review the severity of a criminal sentence within narrow limits where the court has manifestly or grossly abused its discretion. This is such a case. The severity of the sentence shocks the judicial conscience.

Appellants contend that under the circumstances of this case the sentence itself was a manifest or gross abuse of discretion. They argue that under current standards consecutive sentences should only be used where it is necessary to protect the public from further criminal conduct by the defendant, and no such showing was here made. See, American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures, Approved Draft, 1968, at 171-81. They also point out that their participation in this illegal scheme was minor when compared to that of one Paul Martin who pled guilty to two counts in a similar case and was sentenced to one year imprisonment and a $1,000 fine by the same judge.

We recognize that in the general vernacular the sentences imposed may properly be characterized as heavy. The defendants will be required to serve a minimum of three and a third years before they will be eligible for parole. However, we are not prepared to say that the court has manifestly or grossly abused its discretion.

The government points out in its brief that we deal with a sophisticated and well-planned scheme to defraud the victim company of substantial amounts of money. It involved numerous false claims, including many with which defendants were not charged in the 26-count indictment. They pled guilty to three counts for which they could have been sentenced to fifteen years’ imprisonment. There is no question but what the defendants fully understood their maximum exposure in entering their pleas to three counts. Defendant Dace in his motion for reduction of sentence recited that prior to entering his plea the government advised that it would seek permission from the court to withdraw all but one or two counts, but that defendant was advised said permission was not granted and, instead, all counts but three would be dismissed.

The government also points out in its brief that there may have been reasons for the lighter sentence received by Paul Martin. He cooperated fully with the government from the very beginning and consented to be a witness against all potential defendants in this widespread scheme.

We do not here list the many factors which could properly be considered by the court in fixing sentence. We merely point out that there were many matters to be weighed. Violations of the mail fraud statute' cover such a broad range of offenses that comparison of sentences is not particularly helpful.

The record fails to demonstrate a gross abuse of discretion by the trial court in fixing the sentences imposed.

Presentence Investigation Reports

Appellants charge that the district court abused its discretion in refusing to grant them permission to examine their presentence reports prior to sentencing, and in connection with their motions for reduction of sentence. They contend that the court erred in routinely denying access to the presentenee reports, and, particularly in this case, where a heavy sentence was imposed. They argue that in view of the severe sentences imposed it is reasonable to conclude that there must have been derogatory information in the presentence investigation reports.

Rule 32(c)(2) of the Federal Rules of Criminal Procedure is permissive in nature. It permits but does not require that all or part of the material contained in the report be disclosed to the defendant or his counsel. We have consistently held that the matter of disclosure is within the discretion of the trial court. United States v. Schrenzel, 462 F.2d 765, 775 (CA 8 1972) (rehearing en banc denied); United States v. MacLeod, 436 F.2d 947, 950 (CA 8 1971); United States v. Gross, 416 F.2d 1205, 1214 (CA 8 1969).

Proposed amendments to the Federal Rules of Criminal Procedure to take effect July 1, 1974, were transmitted by the Supreme Court to the Congress April 22, 1974. 15 Crim.L.Rep. 3007, April 24, 1974. They require that the court upon request shall permit the defendant or his counsel to read the pre-sentence report and afford comment with respect thereto, or under certain circumstances, in lieu thereof, the court must state orally or in writing a summary of the factual information contained therein relied on in determining sentence and give the defendant or his counsel an opportunity to comment thereon. However, since these amendments have not as yet been adopted we adhere to the discretionary rule still in existence. Compare, United States v. Tompkins, 487 F.2d 146, 150 (CA 8 1973).

Subsequent to submission of this cause, we directed that this court be furnished copies of the presentence reports. Examination thereof would permit us to determine whether they possibly contained material misinformation or unverified derogatory hearsay which might have influenced the court in imposing sentence. See, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947).

The presentence reports describe the pervasive scheme to defraud in which appellants were involved. This description is consistent with the scheme described in the indictment to which appellants pled guilty. The reports do state that “ * * * Postal Inspectors have indicated there are many more fraudulent claims in which they feel Dace and Schneider were involved.” This, of course, was not established and is merely an opinion, and would be recognized as such by a sentencing judge. However, we do note that the government made the same allegation in its brief filed in this court to which no exception was taken by appellants by way of reply. Similarly, appellant Schneider at the time of sentencing and in his brief before this court points out that he made full restitution on the claims in the counts to which he pled guilty. As previously indicated, postal authorities and the government in its brief believe there are many more fraudulent claims in which appellants were involved. The presentence reports point out that because of the number of people involved in the scheme it is almost impossible to determine the amount of money that appellants actually profited from the scheme. It is stated that the victim company paid out over $50,000 on at least forty known fraudulent claims between December 1967 and July 1971.

(3) Disclosure.
(A) Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, unless in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon.

The proposed amendments to Rule 32, Fed.R.Crim.P., recognize (and will require if adopted) that it is the better practice to disclose the contents of the presentence report to the defendant or his counsel, or under certain circumstances, in lieu thereof, state the factual information relied on in determining sentence and afford defendant or his counsel an opportunity to comment thereon. Here we must decide only whether the trial court abused its discretion in failing to disclose the reports.

After reviewing the record, we are satisfied that the presentence reports do not contain material misinformation or unverified derogatory hearsay of such a nature that it can be said the trial court abused its discretion in not revealing the same to appellants before imposing sentence.

(B) If the court is of the view that there is information in the presentence report which should not be disclosed under subdivision (c) (3) (A) of this rule, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an opportunity to comment thereon. The statement may be made to the parties in camera.

Affirmed.

LAY, Circuit Judge

(dissenting).

Today we uphold obviously abusive and punitive criminal sanctions. The sentences approved by this court shock the human conscience and by legal standards stun the judicial conscience as well. But perhaps more relevant here, they were imposed illegally.

Disclosure of the Presentence Reports

Without bothering to give any reason for the harsh penalties or to reveal to defendants or their counsel the contents of their presentence reports, the district court imposed five-year maximum sentences, to be served consecutively, on these first offenders. There exists no possible reason for such severe punishment other than the district court’s reliance on uncorroborated hearsay contained within the presentence reports. The defendants pled guilty to three counts of mail fraud. It is true that the government indicted them on 23 additional counts, but these were dismissed. The presentence reports reveal that the postal inspectors were hampered in their investigation since the insurance company files were lost; nevertheless, the reports state that postal officials “feel” these defendants participated in many more fraudulent claims than they were charged with. This is the rankest sort of hearsay which deserves to fester in the open. If the defendants are to be sentenced for other crimes, the government has the burden of proving them. The defendants cannot lawfully be sentenced for crimes not proven. Yet it seems clear, as made manifest by the majority opinion and the presentenee reports, that this is what occurred. This illegal procedure places an almost intolerable burden on a defendant. How can the defendants rebut unfounded hearsay, unproven charges, when they are not allowed to see the presentence reports or even to know the judge’s reasons for imposing a particular sentence ?

This case is no different than United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972), in which the Ninth Circuit vacated the defendant’s sentence and remanded for resentencing. On resentencing, the district court was instructed not to “rely upon the information contained in the presentence report unless it is amplified by information such as to be persuasive of the validity of the charges there made.” Id. at 634. The court summed up the situation as follows:

In essence, then, what we have is a conviction at a trial providing all of the safeguards required by the Constitution, of an offense warranting, in the opinion of the trial judge, the minimum sentence of five years. This is followed by a determination, based on unsworn evidence detailing otherwise unverified statements of a faceless informer that would not even support a search warrant or an arrest, and without any of the constitutional safeguards, that Weston is probably guilty of additional and far more serious crimes, for which she is then given an additional sentence of fifteen years. Cf. Specht v. Patterson, 1967, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed. 2d 326; Kent v. United States, 1966, 383 U.S. 541, 553-554, 86 S.Ct. 1045, 16 L.Ed.2d 84. To us, there is something radically wrong with a system of justice that can produce such a result.

Id. at 630-631.

To say that disclosure of presentence reports lies within the discretion of the district court and that the court’s exercise of discretion will not be disturbed except for abuse is one thing; to refuse to require disclosure where abuse has been shown is another. We observed in United States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970), that the Advisory Committee under Rule 32(c) of the Federal Rules of Criminal Procedure “did not contemplate an absolute rule of nondisclosure without relevancy to the particular circumstance of a case.” And we added:

It is always advisable for the trial judge to at least state on the record the various factors he has taken into consideration in rendering his sentence. . . . Such a procedure serves as a checkmate to the danger of misinformation being placed in the hands of the court.

Id. at 1118 (emphasis added).

See also Hess v. United States, 496 F.2d 936 (8th Cir. 1974).

Today, the majority chooses to ignore those holdings. Today’s holding additionally defies the standards established by the National Advisory Commission on Criminal Justice Standards and Goals, in its Report on Corrections, Standard 5.16, as well as the holdings of most of the courts of appeals. See, e. g., United States v. Espinoza, 481 F.2d 553 (5th Cir. 1973); United States v. Brown, 470 F.2d 285 (2d Cir. 1972); United States v. Janiec, 464 F.2d 126 (3rd Cir. 1972); United States v. Picard, 464 F.2d 215 (1st Cir. 1972); United States v. Miller, 495 F.2d 362 (7th Cir. 1974).

The presentence reports do not rely on any confidential sources which might “dry up” if disclosed. There is no derogatory information about the defendants themselves which might retard their rehabilitation. In sum, there exist no relevant factors here to support nondisclosure of the reports.

Even assuming that nondisclosure were appropriate, if there are justifiable reasons for the sanctions imposed, these reasons should be made known to the defendants and to the reviewing court. When the district judge is free to impose whatever sentence he chooses, without explanation, this court has no way of knowing whether or not he properly exercised his discretion, or whether he in fact exercised it at all. When the defendants are not provided with an explanation, the likelihood that they will feel they have been unfairly treated is greatly magnified. This only fosters disrespect for the law and certainly cannot assist in the defendants’ rehabilitation. See M. Frankel, Criminal Sentences 39-49 (1973).

Sentence Review

It must be acknowledged that the scope of federal appellate review of sentencing is still unsettled. Nevertheless, this circuit has recognized the injustice of unreviewed abusive sentences. In Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) (en banc), we held that an appellate court had the power to “consider whether the imposition of a maximum sentence was in itself an abuse of discretion . . . .’’Id. at 146. The Woosley court further noted that “the record completely fails to justify, nor has the district judge undertaken to explain, the imposition of a maximum penalty . . . .’’Id. at 147. After reviewing the facts in Woos-ley, the court concluded:

The broad and unreviewable discretion possessed by federal district courts in matters of sentencing does not extend to the meting out of punishment manifestly disproportionate to the nature of the crime and the character of the criminal.

Id. at 148.

Federal courts review the excessiveness of civil damages, when abuse of discretion is shown by judge or jury. It is an anachronism not to afford similar review of sentences in criminal cases.

One of the alleged difficulties of sentence review is the lack of manageable judicial standards. There exists the continued concern that appellate judges will simply substitute their “guess” for that of the trial judge. But the trial judge does not, or at least should not, act out of personal benevolence any more than he should act punitively outside of the law. Discretion lawfully exercised must represent a legal judgment, not a mere human reaction to choice. The same standards which move a trial judge to a particular sentencing decision mark out the boundaries by which lawful exercise of judgment must be measured. To review the exercise of judicial discretion in the sentencing process is not that difficult a task — the appellate process involves similar appraisals in many areas of the law. I suggest the main difficulty in reviewing lawful discretion on appeal comes not in measuring the exercised judgment against the marked boundaries of the field, but in the all too human predilection of judges to routinely “rubber stamp” the questioned discretion of a district judge without making a qualitative review of the actual decision. It is as erroneous to substitute conclusory agreement as it is to voice opinionated disagreement.

In order to avoid charges that appellate review of sentences “reflects no more than the substitution of one guess about the proper disposition for another,” Standard 1.2 of the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, establishes general objectives of sentence review:

The general objectives of sentence review are:

(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;
(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;
(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and
(iv) to promote the development and application of criteria for sentencing which are both rational and just.

Id. at 21.

Proper review of the sentences in the present cases would accomplish all four of the above objectives. Although there are no fixed rules to bind the district courts in imposing sentences, it is apparent that defendants’ sentences run counter to all modern guidelines on the proper imposition of sanctions. The Report on Corrections of the National Advisory Commission on Criminal Justice Standards and Goals recommends imprisonment only where there is no suitable alternative:

The traditional sanction imposed for violation of the criminal law in this country was confinement. Any other sentence that in some way moderated the nature or extent of confinement was considered a lenient act on the part of the state. It is more clearly recognized today than confinement is unnecessary and inappropriate in a large number of cases. Supervision in the community has been demonstrated to be at least as effective in insuring future law-abiding conduct without the human degradation, hostility, and public expense associated with confinement. Confinement thus should be considered the alternative to be used when no other disposition will protect the public safety.

Id. at 152.

In its Standard 5.2, on Sentencing the Nondangerous Offender, the National Advisory Commission provides the following guidelines to assist the sentencing court in its decision:

Criteria should be established for sentencing offenders. Such criteria should include:
1. A requirement that the least drastic sentencing alternative be imposed that is consistent with public safety. The court should impose the first of the following alternatives that will reasonably protect the public safety:
a. Unconditional release.
b. Conditional release.
c. A fine.
d. Release under supervision in the community.
e. Sentence to a halfway house or other residential facility located in the community.
f. Sentence to partial confinement with liberty to work or participate in training or education during all but leisure time.
g. Total confinement in a correctional facility.
2. A provision against the use of confinement as an appropriate disposition unless affirmative justification is shown on the record. Factors that would justify confinement may include :
a. There is undue risk that the offender will commit another crime if not confined.
b. The offender is in need of correctional services that can be provided effectively only in an institutional setting, and such services are reasonably available.
c. Any other alternative will depreciate the seriousness of the offense.
3. Weighting of the following in favor of withholding a disposition of incarceration:
a. The offender’s criminal conduct neither caused nor actually threatened serious harm.
b. The offender did not contemplate or intend that his criminal conduct would cause or threaten serious harm.
e. The offender acted under strong provocation.
d. There were substantial grounds tending to excuse or justify the offender’s criminal conduct, though failing to establish defense.
e. The offender had led a law-abiding life for a substantial period of time before commission of the present crime.
f. The offender is likely to respond affirmatively to probationary or other community supervision.
g. The victim of the crime induced or facilitated its commission.
h. The offender has made or will make restitution or reparation to the victim of his crime for the damage or injury which was sustained.
i. The offender’s conduct was the result of circumstances unlikely to recur.
j. The character, history, and attitudes of the offender indicate that he is unlikely to commit another crime.
k. Imprisonment of the offender would entail undue hardship to dependents.
l. The offender is elderly or in poor health.
m. The correctional programs within the institutions to which the offender would be sent are inappropriate to his particular needs or would not likely be of benefit to him.

Report on Corrections, supra at 150-151.

The work of the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, reflects the same views on sentencing as the Report of the National Advisory Commission. Standard 2.2 of the ABA Project provides :

The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.

Id. at 61.

Similarly, Standard 2.3(c) provides that “[a] sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary.” Id. at 64.

Both the National Advisory Commission and the ABA Project are also opposed to consecutive sentences, except in the case of dangerous offenders. The Report of the National Advisory Commission recommends a presumption “in favor of concurrent sentences for multiple offenses.” Id. at 166. The Report finds little justification for consecutive sentences, other than to extend the period of confinement:

Such an extension, if based solely on the fact that more than one offense was committed, regardless of the needs of the particular offender or the requirements of public safety, amounts to the imposition of sanction purely for punishment purposes.

Id.

The Report concludes that only dangerous offenders should ever be subjected to more than five years imprisonment.

The ABA Standards Relating to Sentencing Alternatives and Procedures are also generally opposed to consecutive sentences. Standard 3.4(b) holds that “[cjonsecutive sentences are rarely appropriate.” Id. at 171.

In the Commentary to this Standard, the Advisory Committee states that “[t]he consecutive sentence should be the exception rather than the rule . . . . [T]he basis of a consecutive sentence, like the basis of any other sentence which extends for an unusually long period, ought to be a finding by the court that the defendant poses such an exceptional risk to the public that long-term incarceration is necessary as a protective measure.” Id. at 179.

In addition to running counter to modern penological thinking, the sentences imposed by the district court are far in excess of the average sentence for defendants convicted of similar crimes. In 1971 (the most recent year for which data are available), 496 defendants were convicted of mail fraud offenses. Of this total, less than 50% were sentenced to any time in prison. Among those who were incarcerated, the average sentence was 33.2 months. Only 37 defendants out of the total of 496 were sentenced to five or more years. Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: (1973). 1971, at 96

With these guidelines in mind, examination of the facts in the present cases shows that the sentences imposed were completely unwarranted. The district court chose the most severe sentencing alternative available, yet there are no aggravating circumstances in either case requiring such extreme measures.

Defendant Dace is 46 years old; has been married for 21 years; has three children, ages 15, 11 and 3; and had been employed by the Hartford Insurance Group for ten years. The extent of his past criminal record was a misdemeanor charge in St. Louis County, which resulted in a suspended imposition of sentence. The trial court was advised that Dace has insufficient funds to support his family while confined; that his wife is now working, but cannot afford to keep all three children at home; and that she has been denied welfare assistance. The court was further informed that Dace has employment available to him upon his release from custody. The presentence report shows that Dace cooperated fully with law enforcement authorities during their investigation.

Defendant Schneider is 52 years old; has been married for 27 years; has two children in college; and had been steadily employed. He served his country as a combat pilot in Korea, suffered a disability as a result of such service, and was decorated three times. He also served as a volunteer police officer and has no prior criminal record of any sort. With regard to the three counts to which Schneider pleaded guilty, his counsel pointed out that Schneider had made full restitution to the insurance company. Schneider also cooperated fully with law enforcement officers. Schneider’s counsel produced a letter from a Mr. Reeves, offering Schneider employment upon his release from custody, and several other letters of recommendation from various people concerning Schneider’s general character.

In summary, Schneider has no prior criminal record at all; Dace has had only one relatively minor scrape with the law. Neither defendant could be considered the least bit dangerous to the public. Their briefs indicate that Dace, after confinement at Leavenworth Penitentiary, was quickly transferred to the minimum security prison camp at Leavenworth, Kansas, and that Schneider has been recommended for the same assignment. Schneider has made at least partial restitution to the insurance company. Neither defendant is likely to benefit from rehabilitative training programs available in prison. These are not unskilled defendants who, if released from custody, might well be forced to commit another crime out of economic necessity. On the contrary, both defendants have jobs available to them immediately upon their release. In the meantime, their confinement is working a severe hardship on their families, who may soon have to look to the state for support.

Keeping Schneider and Dace in prison for an extended period of time is far more likely to have a negative rehabilitative effect. By the time they are released, their employment prospects may well have disappeared. They are likely to be so bitter against society that their readjustment into the community will be impossible. I would vacate both sentences, remand to the district court and require that the court disclose the pre-sentence report to each defendant, and that the court thereafter resentence each defendant, taking into consideration time already served. The district court should be directed to consider immediate probation. If some justifiable reason can be demonstrated on the record to deny probation, then the court could require further imprisonment based solely on the charges to which the defendants have pleaded guilty and no others.

ORDER ON REHEARING

Upon consideration of appellants’ petition for rehearing we deem it appropriate to emphasize that where the presentence report is not disclosed to a defendant, “[i]t is always advisable for the trial judge to at least state on the record the various factors he has taken into consideration in rendering his sentence. * * * Such a procedure serves as a checkmate to the danger of misinformation being placed in the hands of the court.” United States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970) (emphasis added). Failure to do so may well require a vacation of sentence and remand for resentencing under the teachings of Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 736, 92 L.Ed. 1690 (1948); and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Our refusal to vacate and remand for resentencing in the instant case follows a careful examination of the presen-tence reports which, as we have noted, do not include unreliable information that a district judge would normally rely on in rendering sentence.

The petition for rehearing is therefore denied.

LAY, Circuit Judge, dissents from the denial of rehearing for all the reasons stated in his original dissent.

      . The majority also held that the district court in following a rigid policy erred in not exercising discretion in imposing the sentence. Three judges dissented, primarily on the basis that the sentence being within statutory limits was not subject to review.

      . This was not established.

      . Proposed amendments to Rule 32(c)(3) are in part as follows :

      . Defendant Schneider was named in only seven counts of the original 26-count indictment.

      . The majority states that examination of the presentenee reports by this court is sufficient to insure that no misinformation was relied upon by the trial court. At 900. I do not feel, however, that this is a viable sub-statute for disclosure to defendants and their counsel in the first instaaace. This court is in no better position to assess the accuracy of the reports than the sentencing court. Defendants, still in the dark as to the contents of the report, have never been afforded the opportunity to rebut the charges contained therein. Cf. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).

      . A short statement of reasons relied upon by the district court for the imposition of a particular sentence would go a long way toward curbing abuses of discretion in sentencing :
      The key to limiting abuse of judicial discretion is not to be found in reducing the sentencing judge’s options, but rather in providing definitive guidelines to specify what circumstances are aggravating and which mitigating. To leave these terms undefined is to invite their interpretation according to personal bias. Should this approach be adopted, a sentencing judge would be required to ground his decision on something less amorphous than his limitless and unreviewable discretion. Furthermore, the sentencing judge would be forced to incorporate as a part of the record those aggravating and mitigating circumstances upon wlich he relied in rendering a particular sentence. Without such a provision, personal bias might still prevail.
      Zumwalt, The Anarchy of Sentencing in the Federal Courts, 57 Judicature 96, 104 (1973).
      Similarly, Judge Frankel observes:
      The point, anyhow, is that the parties (especially the loser) are, on deep principles, not merely entitled to a decision; they are entitled to an explanation. And this serves for more than the satisfaction of aesthetic or purely spiritual needs, though I disclaim any belittling of these. The duty to give an account of the decision is to promote thought by the decider, to compel him to cover the relevant points, to help him eschew irrelevancies — and, finally, to make him show that these necessities have been served. The requirements of reasons expressly stated is not a guarantee of fairness. The judge or other official may give good reasons while he acts upon outrageous ones. However, given decision-makers who are both tolerably honest and normally fallible, the requirement of stated reasons is a powerful safeguard against rash and arbitrary decisions.
      M. Frankel, Criminal Sentences 40-41 (1973).

      . The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, states in pertinent part:
      Finally, it should be observed that the Advisory Committee has had the benefit of a detailed study of appellate review of sentences in England, where sentence review has been the practice since 1907. The conclusion of that study is worth noting .here:
      English lawyers and judges find it odd that the question whether sentences should be subject to appellate review is a matter of debate in the United States. The time before which . . . [the Court of Criminal Appeal] was established with authority to review sentences lies beyond the memory of the active members of the English legal profession today; they have never known another system. So to them sentencing review is taken for granted. In addition, though, everyone consulted believes it to be a good thing. Most think its chief virtue is that it serves as a protection against erratic sentences, the occasional peaks of excessiveness. A number of thoughtful persons also believe that it contributes greatly to sentencing policy and to an improved atmosphere for the sentencing process.
      MEADOR REPORT, Appendix C, p. 130, infra. One would think that a country which prides itself for its protections against state invasion of liberty would also take pride in providing that protection where it often is needed the most, where the difference to the victim may be counted in years.

        Id. at 6.

        Bee also M. Frankel, Criminal Sentences 75-85 (1973) ; Zumwalt, The Anarchy of Sentencing in the Federal Courts, 57 Judicature 96, 104 (1973).

      . The Commentary to this Standard explains the presumption in favor of probation:
      The Advisory Committee believes that the starting point for every sentence should be probation or some other sentence not involving commitment or confinement, and that the extent to which commitment or confinement is employed in a given case should turn on the appearance of specific reasons which seem to call for that disposition. See § 2.2, supra and §§ 2.4(c) and 2.5(c), infra.

        The results tend to support the conclusion that for many judges incarceration is the automatic sentencing response. More harm than good can be caused by such an attitude. Often institutionalization will result in little more than education of the offender in more sophisticated methods of engaging in criminal conduct, and certainly a great deal less than a realistic program of rehabilitation. Particularly in the case of first offenders, there is a much greater chance in most cases of avoiding a subsequent offense by helping the offender adjust to society than by removing him from it. See § 2.1, comment f, and § 2.2, comment a, supra.

      In addition to the fact that probation often offers the best possibility of meaningful rehabilitation, it is considerably less expensive than institutionalization. Figures supplied to the Advisory Committee by the Administrative Office of the United States Courts indicate that in fiscal 1964 the per capita cost of probation in the federal system was 59 cents a day, while the cost of housing a prisoner in a federal institution was $6.35 per day. The annual figures were $215 and $2,318, respectively. The Administrative Office reports in addition that probationers during the period in question earned $62 million. Intangible costs in terms of impact on a family deprived of its breadwinner, including possible welfare payments, add to the cost of incarceration, not to mention the cost per inmate of the construction of facilities for housing prisoners. Compare Herlands, When and How Should a Sentencing Judge Use Probation, 35 F.R.D. 487, 498 (1964). Crime Commission figures disclose that the average state spends approximately $3400 a year, excluding capital expenditures, to keep a youth in a state training school, while probation for the same period costs approximately one-tenth of that amount. Construction costs are estimated to be in excess of $20,000 per bed in a correctional institution. While the Commission correctly points out that necessary increases are warranted in order to strengthen probation services, the expense of this sanction will still remain considerably below institutionalization. See President’s Comm’n, Corrections 28, 175-76.

        Id. at 72-73.

      . Apparently, Schneider even repayed some monies kept by his confederates, in addition to that which he had gained for himself.


author: LAY, Circuit Judge. ROSS, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Oscar BEAR RUNNER, Appellant.
    No. 74-1201.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided Sept. 5, 1974.
    Ross, Circuit Judge, dissented and filed opinion.

      Roger Finzel, Wounded Knee Legal Defense Committee, Sioux Falls, S. D., for appellant.
    Ed Carpenter, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

The defendant, an American Indian, was convicted of the crime of larceny in violation of 18 U.S.C. §§ 661 and 1153 in connection with the killing of a calf on the ■ Pine Ridge Indian Reservation in South Dakota. He was sentenced to two years probation and thereafter brought this appeal. On appeal he alleges three points of error: (1) the restrictions placed by the court upon his cross-examination of the government’s principal witness; (2) the admission of evidence relating to the shooting of a second cow, an occurrence which was the subject of additional charges dismissed before trial; and (3) the inadequacy of the voir dire examination conducted by the trial judge. We reverse the conviction and remand for a new trial.

Our review of the record and the law convinces us that defendant’s first and second assignments of error are without merit. The evidentiary rulings questioned were well within the broad discretion granted to the trial judge in such matters. We have more difficulty, however, in assessing the validity of his challenge to the sufficiency of the voir dire examination. That challenge is twofold. He argues, first, that the questions asked by the court failed to adequately probe the possible effects of pre-trial publicity, and, second, that they were insufficient to. reveal any latent racial prejudices possibly entertained by the prospective jurors.

The defendant’s first contention is based upon the fact that, in the months preceding his trial, several disruptive incidents involving American Indians had occurred in western and central South Dakota, most notably, the occupation of Wounded Knee. Though the charges against the defendant concededly arose from events totally isolated from those which were the subject of publicity, he nonetheless argues that the trial court should have more thoroughly interrogated the prospective jurors with respect to the possible prejudicial effects of this publicity. The court made only the following inquiry:

THE COURT: Has anyone else on the panel heard anything about the case?
I would say at the outset that this is a non-Wounded Knee case. I do this at the risk of putting in too much importance of whether something is or is not Wounded Knee.
I wouldn’t care if this was as to Wounded Knee or not. I would want a fair and impartial jury regardless, and I would state this now so there won’t be any conjecture being made. This is not related to this particular alleged incident or set of incidents.
Now, again, no one has heard anything about this.

There is no doubt that the trial judge has the duty to neutralize the effect of any known area of prejudice. The difficulty here is that the defendant did not submit any additional questions nor did his counsel seek leave to interrogate the jurors on the matter of publicity. It is fundamental that a defendant may not assert as error on appeal matters not complained of at trial. Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967).

However, the defendant did seek to have the trial court ask additional questions of the jurors concerning the possibility of racial prejudice. The court’s initial inquiry on this point was limited to the following:

American Indians are on trial here, that is, they are Indians and they are Americans. I wouldn’t care whether they are American Norwegians or Swedes. They are to be treated like men.
Now, this can be cut both ways. Is there anyone here with a prejudice either way concerning American Indians to such an extent that these gentlemen could not get a fair and impartial trial before you; that is, does anyone of you have a prejudice either way? The United States has a right to have a fair trial as well as the Defendants. So, whatever way it goes, if you feel you are going to be prejudiced either way, I want to know about it right now.
Is there anyone that has such a prejudice or such a feeling?
All right. Negative.

Upon completion of the voir dire, the defendant expressed his dissatisfaction with this limited inquiry and sought to have the court examine the prospective jurors more thoroughly. The defendant submitted these additional questions:

1. Do you accept the idea that customs, actions and needs of those persons raised and living in an Indian culture can be different from the customs, actions and needs of those persons raised in a white culture ?
2. Do you accept the idea that these customs, actions and needs of those persons raised and living in an Indian culture are just as valid as those customs, actions and needs of persons raised in a white culture ?
3. Would any of you jurors have difficulty in accepting the idea that Indians have a right to and do hunt wildlife such as deer or rabbits on the reservation ; that under reservation rules and regulations they are allowed to do this hunting at any time during the year, day or night?

The court submitted the substance of the third question but refused to ask questions 1 and 2. Counsel again objected to the court’s refusal to probe more thoroughly.

The court then agreed to ask what it considered the “gist” of the questions and stated to the panel as a whole:

When I asked you if you were in the position of the Defendants, now, I want to rephrase that in this way. I would want to know if you were either a Defendant or if you were the Government’s attorney in this case or in any ease, would you want anyone on the jury who has the frame of mincTThat you now have? Is there anyone who would not want anyone on the jury with the frame of mind that you each individually now have ?

The defendant asserts this general form of questoning was inadequate and that the court erred by refusing to inquire more fully of the prospective jurors concerning possible racial prejudice.

The Sixth Amendment guarantees a criminal defendant the right to a “speedy and public trial, by an impartial jury. . . . ” The importance of a truly impartial jury, whether the action is civil or criminal, has never really been questioned in this country. See Mima Queen and Child v. Hepburn, 11 U.S. (7 Cranch) 290, 3 L.Ed. 348 (1812) (Marshall, C. J.).

Unquestionably one of the most effective means of ensuring impartiality is the voir dire proceeding during which questioning will expose any latent bias entertained by prospective jurors. Such exposure is necessary if the parties are to be expected to exercise their challenges in an intelligent and informed manner. Justice White recognized this in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1964):

The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of per-emptories, and the process of selecting a jury protracted.

Id. at 218-219, 85 S.Ct. at 835.

A searching voir dire is a necessary incident to the right to an impartial jury. See Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), and Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 (1950) (where the Court upheld the right to inquire into political prejudice); and Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) (where the Court upheld the right to inquire into racial prejudice). However, it is fundamental that the trial court has broad discretion in deciding what questions to ask and that its rulings will not be reversed. absent an abuse of discretion. Pope v. United States, 372 F.2d 710, 723-727 (8th Cir. 1967). The sufficiency of the court’s question in this instance, and the propriety of its refusal to probe further, must be judged in the light of all of the attendant circumstances. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), is the most recent Supreme Court case on the subject. In Ham, the defendant was a Negro, on trial for possession of marijuana. He requested that the following questions be asked on voir dire:

1. Would you fairly try this case on the basis of the evidence and disregarding the defendant’s race ?
2. You have no prejudice against negroes? Against black people? You would not be influenced by the use of the term “black” ?

The trial court refused to ask these questions, and asked instead three questions specified in the South Carolina statutes:

1. Have you formed or expressed any opinion as to the guilt or innocence of the defendant, Gene Ham?
2. Are you conscious of any bias or prejudice for or against him?
3. Can you give the State and the defendant a fair and impartial trial?

The Supreme Court reversed, noting that, in view of Aldridge, supra, the defendant was entitled to have the subject of racial prejudice inquired into. However, the Supreme Court noted that the questioning need not assume any specific form, nor must the court ask any particular questions on the subject. Mr. Justice Rehnquist stated that “either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.” Ham, supra, 409 U.S. at 527, 93 S.Ct. at 850. We view this statement as an expression of the minimum requirement, and not as a limitation on a more extensive inquiry where the facts warrant it. As the first Mr. Justice Harlan said, speaking for a unanimous Court, the right to challenge is “one of the most important of the rights secured to the accused” and that “[a]ny system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned.” Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). See also Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).

In the instant case, the court’s single question concerning racial bias was not only general in scope but was made to the prospective veniremen as a group. The effect was more like a monologue by the court than a probing examination of the jurors. Although the use of general questions has been approved by this court, see United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974), and United States v. Powers, 482 F.2d 941 (8th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 39 L.Ed.2d 479 (1974), the better practice in a sensitive case is to direct probing questions touching areas of possible prejudice to each individual juror, with the questions to be asked by the trial judge or counsel. Individual questioning is particularly necessary when the overall circumstances and surroundings suggest the possibility'of racial bias.

Here both the trial court and counsel were well aware of the recent events involving members of the Indian race. This trial commenced in the latter part of October, 1973. The well-publicized events of Wounded Knee took place in the spring of 1973 in the same general locality. The feelings of the local citizenry ran high. We take judicial notice of the fact that the criminal charges against those American Indians involved in Wounded Knee were moved by the court out of the Deadwood locale. We conclude under these circumstances there existed a sincere concern over prejudicial issues and that a general rhetorical question asking if the jurors would be fair and unbiased toward the defendant was of questionable sufficiency. Cf. United States v. Dellinger, 472 F.2d 340, 366-368 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). Under these circumstances it would have been a much better practice for the court, or counsel with the court’s permission, to have examined each of the prospective jurors on an individual basis in these sensitive areas. The use of general questions such as that employed by the court here was recently looked upon with disapproval by the Supreme Court of Arkansas in Cochran v. State, 505 S.W.2d 520 (Ark.1974) where that court observed:

“ . . . All trial lawyers, and all students of the science of jurisprudence, know that general questions directed to the jury panel, or to individual jurors, by a judge who at the beginning of the trial has no special information regarding the issues, or the relationship of the parties, or the attending circumstances, sometimes fail to elicit answers which may cause even the most conscientious juror to reveal an existing prejudicial status.”

Id. at 521.

With this view, we agree.

It is fundamental that any erosion of the right to extensively examine veniremen in order to secure a fair and impartial jury constitutes prejudicial error. The right, although firm and absolute, must always be considered in light of all the surrounding circumstances presented by the particular case. We conclude that fundamental fairness in the present case requires that a new trial be granted.

Judgment reversed.

ROSS, Circuit Judge

(dissenting).

I dissent. In Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), a judgment of conviction was reversed because the “court failed to ask any question [on voir dire] which could be deemed to cover the subject” of racial prejudice. Id. at 311, 51 S.Ct. at 472 (emphasis added). In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Supreme Court held that nothing requires the trial court “to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.” Id. at 527, 93 S.Ct. at 850. Indeed, the Supreme Court indicated that either of the general questions propounded by the petitioner in Ham, see p. 912, supra, would have been “sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.” Id.

Here the trial court made general inquiries, see p. 910, supra, into the area of possible Indian prejudice. This Circuit has specifically approved the use of such general questions in a probe for bias, see United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974) and United States v. Powers, 482 F.2d 941, 944 (8th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 39 L.Ed.2d 479 (1974), and expressly recognized that the scope of inquiry into an area of possible bias is a matter committed to the sound discretion of the trial judge, see United States v. Delay, 500 F.2d 1360 (8th Cir. 1974) and Pope v. United States, 372 F.2d 710, 727 (8th Cir. 1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). Here the majority reasons that the facts in this case warrant deviation from the rules of the Supreme Court and our own Circuit in this respect. Yet the only “facts” advanced in support thereof are that the defendant is a member of a minority race which was involved in a widely-publicized incident in the same district in which the instant crime was committed and that a change of venue in another case was granted for charges arising out of the publicized event. I agree that it would have been preferable to ask individual jurors probing questions to determine possible bias. But under the rule announced in Ham v. South Carolina, supra, 409 U.S. at 527, 93 S.Ct. 848, 35 L.Ed.2d 46, and under the decisions of this Court heretofore cited, the failure to do so was not reversible error.

      . Defendant’s motion for a continuance before trial sets forth the background of events which received not only local attention, but national focus as well. Counsel stated:
      This request for a continuance is not in respect to any delay or for dilatory tactics or any other reason. What has happened, Your Honor is aware of, that on Wednesday last a member of the Ogalala Sioux Tribe was killed, Mr. Pedro Bissonette. Since that time two BIA police officers on Sunday night were shot. This has all been publicized in the newspapers. And throughout this entire year there has been a great deal of attention to the Indians and the Indian matters as to various activities, starting with Custer, through Wounded Knee, the Custer Grand Jury, in August, all of which has brought these, matters to the attention of the public and has charged the atmosphere with concern about Indian affairs. And coupled with the recent events this has only brought this matter very close. Yesterday’s Rapid City Journal had a front page story regarding the shooting of the two BIA police officers. I have a copy of it if you have not see [sic] it or if Mr. Carpenter has not see [sic] it. The second page had an article about the attorneys, another article relating to the attorneys getting a restraining order by Judge Nichol. And all of these things are highlighted in the jury’s minds -and would tend to make them —and would tend to draw attention to the difficulties that have been encountered that the Indians have been engaged in and would tend to prejudice and charge the atmosphere so that these people in a completely unrelated matter would be adversely prejudiced by this action. . . .
      Tr. at 18-19.

      . In his concurrence in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), Justice Marshall noted:
      Moreover, the Court has also held that the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial. A variety of techniques is available to serve this end, see Groppi v. Wisconsin, 400 U.S. 505, 509-511 [, 91 S.Ct. 490, 492-494, 27 L.Ed.2d 571] (1971); Sheppard v. Maxwell, 384 U.S. 333, 357-363 [, 86 S.Ct. 1507, 1519-1523, 16 L.Ed.2d 600] (1966), but perhaps the most important of these is the jury challenge. See, e. g., Johnson v. Louisiana, 406 U.S. 356, 379, [92 S.Ct. 1620, 1642, 32 L.Ed.2d 152] (1972) (opinion of Powell, J.); Swain v. Alabama, 380 U.S. 202, 209-222, [85 S.Ct. 824, 829-837, 13 L.Ed.2d 759] (1965).
      Of course, the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated. See Swain v. Alabama, supra, [380 U.S.,] at 221, [85 S.Ct., at 836]. It is for this reason that the Court has held that “[p] reservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury,” Dennis v. United States, 339 U.S. 162, 171-172 [, 70 S.Ct. 519, 523, 94 L.Ed. 734] (1950), and that the Court has reversed criminal convictions when the right to query on voir dire has been unreasonably infringed. See, e. g., Aldridge v. United States, 283 U.S. 308 [, 51 S.Ct. 470, 75 L.Ed. 1054] (1931) ....

        Id. at 532-533, 93 S.Ct. at 853.