author: FAHY, Senior Circuit Judge:

text:
    UNITED STATES of America v. Charles H. CARTER, Appellant.
    No. 72-2073.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 11, 1973.
    Decided July 12, 1973.
    Nancy Pyeatt, Washington, D. C. (appointed by this Court), for appellant.

      Peter C. Schaumber, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.
   FAHY, Senior Circuit Judge:

The appeal is from a conviction of robbery in violation of 22 D.C.Code § 2901 (Supp. V, 1972). An identification question is presented, which includes a challenge to the adequacy of the instruction to the jury. No objection to the instruction as given, however, was made at trial. Considering the one given with the evidence as a whole,, no plain error affecting a substantial right appears. We accordingly are not required to consider further this phase of the case. Rule 52, F.R.Crim.P.

A more serious problem grows out of the manner in which the Assistant United States Attorney elicited evidence that appellant had been convicted previously of six counts of robbery and assault with a dangerous weapon. Generally, evidence of a prior criminal conviction is not admissible on the issue of guilt, i. e. “that [the defendant] is by propensity a probable perpetrator of the crime” for which he is being tried. Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 216, 93 L.Ed. 168 (1948). Evidence of a prior crime or conviction is admissible for certain limited purposes for which the probative value of the evidence outweighs its prejudicial character:

Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent . . . an element in the crime . . . identity . . . malice . . . motive . . . a system of criminal activity or when the defendant has raised the issue of his character . . or when the defendant has testified and the State seeks to impeach his credibility .... . The defendants’ interests are protected by limiting instructions . . . and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence.

Spencer v. Texas, 385 U.S. 554, 560-561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967); and see, McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).

In this jurisdiction when a defendant testifies in his own behalf, as appellant did in this case, evidence of a prior conviction that qualifies under the terms of our statute, “shall be admitted” “for the purpose of attacking [the defendant’s] credibility.” 14 D.C.Code § 305(b) (Supp. V, 1972). This statute, concerned only with the impeachment of a witness, does not purport to permit use of the evidence as proof of guilt. “A basic principle of long standing in our law makes it clear that evidence of one crime is inadmissible to prove disposition to commit crime in general.” United States v. Bobbitt, 146 U.S.App.D.C. 224, 227, 450 F.2d 685, 688 (1971).

Because of the possibility that the generality of the jury’s verdict might mask a finding of guilt based on an accused’s past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in circumstances where it tends to prove something other than general criminal disposition.

Spencer v. Texas, supra, 385 U.S. at 575, 87 S.Ct. at 660. See also, Boyd v. United States, 142 U.S. 450, 454-458, 12 S.Ct. 292, 35 L.Ed. 1077 (1892).

In permitting evidence of this highly prejudicial character to impeach a defendant when he testifies, our statute furnishes no foundation for its use for any other purpose. Care is thus required to confine it to the permissible purpose, which may be thwarted by the manner in which the evidence is adduced. Not only was the requisite care not exercised in the present case by the prosecutor, the custodian in the first instance of the rule of evidence, but the manner in which he elicited the evidence was calculated to defeat the purpose of the rule. In cross-examining the appellant he proceeded as follows:

Q. [The Assistant United States Attorney]: And you wouldn’t rob that man, right? A. I had no reason to rob when I am working.
Q. You wouldn’t do something like that? A. No, I wouldn’t.
Q. But in 1968, you were convicted of six counts of robbery and assault with a dangerous weapon, weren’t you, on three different people? A. Yes, I was, and I have learned my lesson from that.
Q. You did? A. Right.

This was designed effectively to persuade the jury that appellant would rob a man, and in fact committed the robbery for which he was now charged. The evidence was inadmissible for that purpose. The seriously prejudicial impact upon the jury is clear.

Defense counsel moved for a mistrial because “the context which [the prosecutor] brought in Mr. Carter’s prior conviction was not to impeach him as such but to show criminal propensity.” The court denied the motion, but after some discussion concerning the need for an immediate limiting instruction, the court, with the prosecutor agreeing, stated to the jury:

Ladies and gentlemen of the jury, you just heard in the course of this examination that this defendant was convicted of a criminal offense of robbery some years ago. We permit that kind of testimony to come in only for one purpose and that is to let the jury evaluate his credibility as a witness. The fact that he has been convicted of a crime in the past has nothing to do with the case on trial; it is only to give you a chance to evaluate his credibility.

Soon thereafter the trial was completed. In his charge to the jury the judge adverted again to this problem and advised the jury:

Now, as we all recall, this defendant was confronted with a prior criminal record. The fact that a defendant has a criminal record has’no bearing on the question of guilt or innocence of the charges on which he is presently being tried. We do, however, admit the criminal record as to any witness who takes the stand solely for the purpose of assisting the jury in determining whether or not to believe that witness. Any fact that may tend to show that a witness may not be a truth-telling individual is admissible with respect to that witness whether he is the defendant or any other witness.
Consequently, you may consider this defendant’s criminal record not as bearing on the question of his guilt or innocence in this particular case, because his guilt must be established by evidence irrespective of what his past record may be, but you may consider his criminal record merely for the purpose in determining whether he was a trustworthy witness when he took the witness stand and whether his testimony should be believed.

The question we have is whether these instructions should be held to have eliminated the prejudicial effect of what actually had occurred before the jury a short time before in violation of the governing rule. We think not. Even when the prior criminal record is brought into the evidence in an appropriate manner, there is the well-nigh inescapable prejudice on the issue of guilt notwithstanding the trial court carefully instructs the jury as to the limited consideration it may accord the evidence. See United States v. Bailey, 138 U.S.App.D.C. 242, 426 F.2d 1236 (1970). One never knows. At best it can only be assumed the jury will be able to close its mind to the total import of the evidence and consider it only as it might affect the credibility of the witness, ignoring its prejudice to the defendant on the issue of guilt of the offense for which he is being tried. When there is the additional prejudice growing out of the introduction of the evidence in an inappropriate manner such as we have here, pointing to present guilt due to the earlier convictions, rather than to present credibility vel non of the accused as a witness, the limiting instructions cannot confidently be held to have eliminated the prejudice. It is asking too much of a jury. We think the remedy is a new trial rather than to assume that no impermissible prejudice affected the resolution of the disputed factual issues.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America v. Tyrone R. TOY, Appellant.
    No. 72-1858.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 19, 1973.
    Decided July 13, 1973.

      Andrew S. Krulwich, Washington, D. C. (appointed by this Court), for appellant.
    Kevin W. Carmody, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Broughton M. Earnest, Asst. U. S. Attys., were on the brief, for appellee. David M. Bullock, Asst. U. S. Atty., also entered an appearance for appellee.
    Before FAHY, Senior Circuit Judge, WISDOM Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   FAHY, Senior Circuit Judge:

The appeal is from convictions of appellant by a jury on three counts of armed robbery, 22 D.C.Code §§ 2901 and 3202 (Supp. V, 1972), and four counts of assault with a dangerous weapon, 22 D. C.Code § 502 (1967). These offenses all occurred in connection with a robbery of a drug store in which four men participated. Money was taken from two cash registers and from the pharmacy section. Six eye-witnesses identified appellant at the trial as one of the robbers. When convicted he was 20 years of age, eligible for sentence under the Youth Corrections Act. He was sentenced under section 5010(c) of the Act to fifteen years for each count of armed robbery and ten years for each assault, the sentences to run concurrently.

Prior to trial, appellant moved to suppress the in-court identification testimony as tainted by previous photographic and lineup procedures. A majority of the court hold the motion to suppress was properly denied.

I

As to other challenges to the armed robbery convictions, now briefly considered, we are agreed in finding no reversible error. It is said the court did not adequately guide the jury in their appraisal of the identification testimony. When the instructions given are considered in the context of the evidence and arguments of counsel, it cannot reasonably be held that the verdict would have been different had the jury been more elaborately instructed as to this part of their responsibility.

It is also claimed appellant was denied the right to a speedy trial, an interval of fifteen months having elapsed between his arrest and trial. “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant,” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), are the factors which “must be considered together with such other circum-scances as may be relevant.” 407 U.S. at 533, 92 S.Ct at 2193. In this case, appellant was at liberty on bond, and did not seek an earlier trial until his motion directed to this issue was filed on April 28, 1972, about fourteen months after his arrest. The motion was heard and denied on May 10, 1972, and the trial began the following day. While the Government agrees, that the delay was most unfortunate, it denies that the delay was intentional to gain an advantage, and assigns institutional reasons as the cause. A delay due to “negligence or overcrowded courts,” 407 U.S. at 531, 92 S.Ct. 2182, is not necessarily fatal to a valid prosecution, though it is a factor to be considered.

We find no significant .prejudice to appellant resulting from the delay in his case. There is no suggestion that any of his witnesses died or became unavailable. While he does claim that he was prejudiced in his alibi defense by the loss of memory on the part of himself and his mother, and also on the part of the identifying witnesses, the latter ordinarily being a disadvantage borne by the prosecution, any prejudice to appellant that may have resulted was minimal and cannot be said to have affected the outcome. The identifying testimony against him accepted by the court as admissible was strong, based as it was on his identification by six witnesses. After carefully weighing all relevant factors, we conclude that the “severe remedy of dismissal of the indictment,” 407 U.S. at 522, 92 S.Ct. at 2188, is not justified.

The convictions of armed robbery accordingly are affirmed. The convictions for assault with a dangerous weapon are set aside, since those charges merged with the former convictions. United States v. Benn and Hunt, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1972).

II

The validity of the sentences for armed robbery remains for consideration. We hold that the court in sentencing appellant under section 5010(c) of the Youth Corrections Act failed to make the finding required as a condition to such a sentence.

We approach this construction of section 5010(c) by considering first the related provisions of sections 5010(a) and (b). The former authorizes the court to suspend sentence of a youth offender and to place him on probation if the court is of the opinion he does not need commitment. If the court decides that probation is not warranted, the statutory plan contemplates that the court will normally sentence the youth offender under section 5010(b). This section permits the court in lieu of any imprisonment otherwise provided for the offense to sentence the youth to the custody of the Attorney General for treatment and supervision under the Act until discharged as provided in section 5017(c), which provides for his release conditionally, under supervision, on or before the expiration of four years from the date of his conviction, and for his unconditional release on or before six years.

Section 5010(c), activated in appellant’s ease, then provides as follows:

If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in section 5017(d) of this chapter.

In sentencing appellant the court first afforded him and his counsel an opportunity to address the court, of which counsel availed himself. The court also stated that he had read counsel’s sentencing memorandum. Then the court simply announced the sentences, without more, as set forth in the margin.

Had the procedure thus followed been employed in sentencing a youth offender as an adult under section 5010(d), clearly it would not have conformed with the finding requirements we have previously held necessary. United States v. Coefield, supra, and United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722 (1970). The language of section 5010(d), “If the court shall find . . . ,” followed by a delineation of what the court is to find should the youth be sentenced as an adult, namely, that he will not derive benefit from treatment under either sections 5010(b) or (c), calls for an affirmative finding. United States v. Waters, supra, and United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971). Moreover, the finding is to be explicit and supported by reasons. United States v. Coefield, supra, and United States v. Reed and Hoston, 155 U.S.App.D.C. 198, 476 F.2d 1145 (1973) (en banc). The same language, “If the court shall find . . . ,” is prefatory to a sentence under section 5010(c) and, we think, likewise calls for an affirmative finding supported by reasons which justify resort to this provision.

In addition to the language of the statute, there are several other reasons which support this conclusion. In sentencing under section 5010(b) the court need only determine whether the youth is between the ages of 18 and 22 at the time of conviction, and that the offense of which he was convicted is punishable by imprisonment. These are simply factual determinations involving no subjective judgment. Having determined that the youth is eligible, the court may sentence him under section 5010(b) without any statement of reasons. In contrast, section 5010(c), like section 5010(d), requires a finding which is qualitatively different from a determination under section 5010(b). This finding embraces a conclusion of the judge reached upon weighing factors which he deems relevant, after affording “reasonable opportunity to the youth offender, if requested, to adduce evidence bearing on the sentence to be imposed.” United States v. Coefield, supra, 155 U.S.App.D.C. at 211, 476 F.2d at 1158. The reasons why a potentially longer sentence of a particular duration, within the broad and indefinite range of section 5010(c), is decided upon, are the bases for its justification. Hence, the finding has judicially the same qualitative nature as a decision not to utilize the Act at all, made under section 5010(d). Any difference in the degree of necessity for stating reasons to support a finding under section 5010(c) as compared with one under section 5010(d), does not obviate the necessity itself. The difference is only in the factors relevant to the different nature of the finding required in each situation. In one, the problem is whether the youth offender should be sentenced for a longer period because he may not be able to obtain the maximum benefit from treatment for the shorter period; in the other, it is whether he will not derive benefit from treatment at all.

A sentence under section 5010(c), like one under section 5010(d), has serious consequences for the youth, and represents an exception to the treatment intended by Congress to be normally accorded to a youth offender. In this case, appellant was sentenced for fifteen years, within the maximum penalty of twenty-five years authorized for armed robbery. As a consequence, he could be held in institutional confinement for a maximum of thirteen years before being conditionally released. In that event his opportunity to establish a normal and productive life, including a family and a career, one of the goals of the Act, is seriously imperiled. Although this may be deemed necessary to effect rehabilitation or to protect society, obviously it is fraught with grave consequences for the youth, as is a “no benefit” finding under section 5010(d). Accordingly, as in the latter case, a statement of the reasons for the court’s decision is “essential to a knowledgeable administration of the Act as intended by Congress.” United States v. Coefield, supra, 155 U.S.App.D.C. at 210, 476 F.2d at 1157. In the present case, the record reveals that the District Court was aware of the availability of the Act for sentencing appellant, but none of the other criteria enumerated in Coefield as essential to be considered by the sentencing judge was satisfied.

What we said in United States v. Reed and Hoston, supra, 155 U.S.App.D.C. at 203, 476 F.2d at 1150 bears repeating:

The awesome and difficult task of sentencing continues to be vested in the one man who is best circumstanced to discharge it wisely, that is to say, the trial judge. The Youth Corrections Act does not change that, nor does it contemplate wholesale appellate intrusion into that process. What Congress has done, out of its urgent concern for saving the young while there is still time, is to require of the sentencing court in one limited but highly important area of sentencing the exposure on the record of the factors which informed and shaped the particular exercise of its discretion. An appellate court can only be concerned with the rationality of those factors in relation to the Congressional objectives. Where that rationality is present and visible, its function is at an end.

Ill

We have considered the contention of the United States that to decide as we do would be inconsistent with footnote 7 in Coefield, 155 U.S.App.D.C. at 210, 476 F.2d at 1157, which states:

Where the court sentences under the Act, without more, the possibility of challenge to the sentence is so remote that we need not now dwell upon whether more might be required in an exceptional situation we do not envisage.

This footnote supplements that part of the text of the opinion which reads:

When, however, prior to imposing a sentence, the judge has availed himself of the assistance afforded by section 5010(e),6 and after considering the report in light of the other data before him, follows its findings or recommendation in imposing sentence, additional reasons need not be stated, although, of course, the judge is not precluded from adding reasons of his own.7 On the other hand when section 5010(e) is not invoked, or the judge imposes a sentence contrary to the recommendation in a report following a referral under section 5010(e), the need for more detailed statement of reasons is more obvious. The present case may indicate that

the likelihood of challenge to a sentence under the Act is not as remote as we anticipated in Coefield, but, even so, the challenge having been made is to be disposed of. Coefield was concerned with a failure to sentence under the Act at all, and its footnote 7 is not a bar to a youth offender’s right to a decision on the merits of his challenge to possible confinement for thirteen years without the criteria of section 5010(c) having been satisfied. The sentencing provisions of the Act are in a special category, encased as they are within a unique statutory plan unknown to the usual sentencing process. The elaborate structure pertaining to these provisions, with their respective standards governing their utilization, imposes a special obligation upon the courts.

The convictions of armed robbery are affirmed. Those of assault with a dangerous weapon are set aside and the sentences therefor are vacated. The sentences for armed robbery are vacated and the case is remanded for reconsideration of the sentences for those offenses consistent with this opinion.

      . 18 U.S.C. § 5001 et seq. (1970).

      . I would remand for a determination by the trial court whether the in-court identifications could bo sustained as resting upon independent sources, that is, upon the witnesses’ recollection of what occurred at the time of the robbery, unimpaired by what I consider to have been such suggestive pretrial identification procedures as to have tainted the identifications made at the trial.

      . Appellant raises no objection to the number of armed robbery counts. Accordingly, ' we do not consider whether there should have been only one conviction for armed robbery, since all the money stolen belonged to the drug store.

      . Congress intended that the vast majority of youth offenders in need of rehabilitation would be sentenced under section 5010(b). This appears from Congressional expectation that only about 10% would not qualify for treatment under that section. Section 5010(c) was added to extend the benefits of the Act to those youth offenders who would have been otherwise sentenced as adults because of the inadequacy of the six year limitation of section 5010(b). See United States v. Coefield, the Appendix, 155 U.S.App.D.C. 205, at 212, 476 F.2d 1152 at 1159 (1973) (en banc). Thus the statutory plan is that youth offenders ordinarily are to be sentenced under section 5010(b) unless the court makes a 5010(c) or (d) finding, whereupon it may sentence under these latter provisions.

      . The treatment and rehabilitative functions assigned to the “Division” (the Youth Correction Division of the Parole Board) are set forth in separate provisions of the Act, including sections 5017 (c) and (d).

      . THE COURT: Count One, armed robbery, 18 U.S.C. 5010(c), 15 years; Count Four, armed robbery, 18 U.S.C. 5010(c), 15 years; Count Seven, armed robbery, 18 U.S.C. 5010(c), 15 years; sentences, of course, to run concurrently.
      On Count Three, assault with a dangerous weapon, 18 U.S.C. 5010(c), 10 years; Count Six, ADW, 18 U.S.C. 5010 (c), 10 years; Count Nine, ADW, 18 U.S.C. 5010(c), 10 years; Count Ten, ADW, 18 U.S.C. 5010(c), 10 years; all counts to run concurrent.

      . With respect to a decision to place a youth offender on probation pursuant to section 5010(a), similarly no statement of reasons is required because “ . the power of the court to grant probation is left undisturbed by the bill.” H.R.Rep. No.2979, 81st Cong., 2d Sess. at 3 (1950) (hereinafter, H.R.Rep.No.2979).

      . 18 U.S.C. § 5017(d) which provides as follows:
      (d) A youth offender committed under section 5010(c) of this chapter shall be released conditionally under supervision not later than two years before the expiration of the term imposed by the court. He may be discharged unconditionally at the expiration of not less than one year from the date of his conditional release. He shall be discharged unconditionally on or before the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction.

      . H.R.Rep.No.2979, supra, at 3, 7, states: The problem is to provide ... a method and means that will effect rehabilitation and restore normality, rather than develop recidivists.
      S.2609 [The Youth Corrections Act] is designed to provide methods and means that will effect such rehabilitation and restore normality. It is not experimental. It is based on the principles and procedures developed under what is known as the Borstal system in England, which has been in successful operation since 1894.
      By 1942, over 15,000 men in England, most of them married and owning their own homes, had passed through a Borstal institution.

      . Under section 5010(c) of the bill, if the maximum term which may be imposed for the offense or offenses of which the youth offender stands convicted is more than 6 years, and the sentencing judge entertains doubt as to whether rehabilitation can be accomplished within 4 years, he may impose a greater maximum sentence but not greater than that authorized by law for the offense or offenses with which the youth offender stands convicted. This affords opportunity for the sentencing court to avail itself of the provisions of this bill and at the same time insure protection of the public if efforts at rehabilitation fail.

        Id. at 4.


author: VAN PELT, Senior District Judge: BAZELON, Chief Judge,

text:
    UNITED STATES of America, Appellee, v. Wilbur JONES, Appellant.
    No. 72-1479.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 26, 1973.
    Decided July 16, 1973.
    Rehearing Denied Aug. 22, 1973.
    See also, D.C.Cir., 476 F.2d 883.

      Nathaniel P. Breed, Jr., Washington, D. C., with whom Robert Reed Gray, Washington, D. C., (both appointed by this court) was on the brief, for appellant.
    Richard L. Beizer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Jerome Wiener, Asst. U. S. Attys., were on the brief, for appellee.

      Before BAZELON, Chief Judge, MaeKINNON, Circuit Judge, and VAN PELT, United States Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to Title 28, U.S.C. § 294(d) (1970).

   VAN PELT, Senior District Judge:

This case comes before the court upon appeal from a judgment of conviction for manslaughter following a jury verdict of guilty. Appellant was sentenced to a term of not less than two years and not more than six years imprisonment.

The events which led to the indictment of Appellant on a charge of second degree murder occurred on April 14, 1971. Appellant was at the home of his common law wife, Mrs. Estelle M. Henderson. Betty Henderson, an eleven year old daughter of Mrs. Henderson, told Appellant that some men were tampering with cars, including a ear owned by Appellant, parked in a vacant lot across the alley from the back yard of the house. He took a loaded shotgun which he kept in the house and proceeded to the back yard. He told the men to leave his car alone, but received an abusive reply. Shortly thereafter Appellant fired the shot which killed the victim. He then left the house taking the two youngest children.

Appellant testified in his own defense. He stated that when Betty told him of the men, he looked through the rear window and saw three men. He recognized one of the men as an individual who had robbed and assaulted him a month earlier. He told one of the children to call the police, took his shotgun and went into the back yard with the gun partially concealed with a blanket. He asked the men to leave and threatened to call the police, but the men replied with abusive language. He did not show the shotgun, but rather turned to reenter the house. When he was on the steps of the porch at the rear of the house, he glanced over his shoulder and saw one of the men reach for a pistol. He turned, fired blindly and reentered the house. He saw one of the two remaining men take the pistol with them. Appellant told the oldest child to call the police and an ambulance, left the house with the two youngest children, and drove to an apartment rented by him in order to pick up a sum of money. On the way to the apartment, he went to the Anacostia River and threw the shotgun into the river. He testified that he did this because of his confused mental state. Later, he turned himself in to the police.

The police testified that they found a pair of pliers under the victim but no weapon. They also found an expended shotgun shell in the middle of the back yard some forty-one feet from the victim.

Betty Henderson testified that she did not see the shooting, but that she did see the victim about to fall when she looked out the back window [there was a conflict in her testimony as to where she was when she looked into the back yard] and saw that as he was falling he had no weapon.

The oldest child, twelve year old Annie, also testified, and it is around her testimony that much of the controversy in the instant case revolves. Prior to the trial she told the prosecutor that the victim did not have a gun. She told a defense investigator that the victim did have a gun. At the trial she related both versions.

Appellant argues that certain errors occurred in the proceedings below which are sufficient, standing alone, to warrant reversal by this court. In addition, Appellant argues that the cumulative effect of these errors warrants reversal even if the errors standing alone are considered harmless.

INSTRUCTIONS

Two of the alleged errors involve instructions given by the trial court. After four hours of deliberation the jury sent a note asking for an explanation of the manslaughter charge. The trial court viewed this as a request for a repetition of the charge and thus proceeded to reinstruct the jury. The court admonished the jury that “they must recall all of the other instructions the Court has given . . ., instructions with respect to reasonable doubt and self defense.....You can assume that I have repeated all of those matters to you at this time and I will simply at this time discuss the elements of manslaughter.” There was no request for, and the trial court did not repeat, the self-defense instruction. Appellant argues this was plain error under Rule 52(b).

The trial court gave an instruction on flight and concealment. Appellant argues that this, too, was plain error under Rule 52(b).

No objection was raised by defense counsel as to either of these instructions when given. Although it is true that under certain circumstances each charge might be the subject of criticism, there is nothing in the record to justify calling the court’s instructions plain error, either standing alone or in conjunction with other alleged errors.

TESTIMONY OF ANNIE HENDERSON

Appellant further argues that the trial court erred in failing, sua sponte, to strike the testimony of Annie Henderson. An understanding of this issue is impossible without a detailed review of the girl’s testimony. After examination, the court was satisfied that Annie was competent to testify and so held. After several preliminary questions the prosecutor asked Annie “whether the [victim] had anything at all in either one of his hands.” Twice she shook her head to indicate “no.” When, however, the court asked Annie to speak up and “tell the jury what [she] saw,” the following took place:

“The Witness: A gun.
The Court: In whose hands ?
The Witness: In the man hands laying [sic] down.
By Mr. Wiener: [Government prosecutor],
Q. Who had the gun ?
A. A man, that was laying [sic] down.”

The court then permitted the Government to cross-examine the witness. The Government elicited from Annie the statement that the victim had the gun tucked in his belt and was reaching for it when he was shot. Annie was asked about a written statement she had given the police concerning the incident and she admitted making statements contained therein. This written statement did not deal with whether the man had a gun when shot. The prosecutor then asked Annie about an oral statement she had made to him, during a pre-trial interview, that the man did not have a gun. Annie admitted making the statement but testified that she had not told him the truth. Upon further questioning the witness again changed her testimony and stated that she had told him the truth about the absence of a gun.

The following colloquy then took place between the court and the witness:

“The Court: Young lady, you have said two things now. You have said one time that the man had a gun, and another time you have said he didn’t have a gun.
Will you take your hands down from your mouth. You tell the jury which it is. Did he have a gun or did he not have a gun ?
The Witness: Tell the jury ?
The Court: Tell the truth. Did he have a gun or did he not have a gun?
The Witness: He did not have a gun.”

On cross-examination the witness stated that she had not understood the questions asked by the Police, but that she had understood her written statement. She also testified that she had had an interview with a Legal Aid investigator, to whom she had stated that the victim had a gun.

On re-direet the witness nodded assent when asked whether she had told the truth when she had stated that the victim had no gun.

On re-cross the witness stated that she had lied to the prosecutor but had told the truth to defense counsel.

This recitation of the testimony reflects the obvious difficulties in ascribing any weight to Annie’s testimony and tends to support Appellant’s argument that the self-contradictory nature of the testimony renders it without probative value. In analyzing this testimony, we are dealing with the matters of competency and credibility, matters which are normally within the province of the trial court and the jury, respectively. As to competency, this court has said that “whether a person is legally competent to testify as a witness is a matter that rests largely within the discretion of the trial court,” and this discretion will not “be disturbed except where ‘clearly erroneous.’ ” Indeed, it has become the modern trend to limit even the trial court’s power to exclude testimony because of incompetency and to make the pivotal question one of credibility:

“The liberalization that has been accomplished in the practice has come by liberalization in judicial custom, as the statutes have seldom purported to change the common law standard. Disqualification for mental capacity or immaturity would doubtless have long since been abandoned, except for the presence of the jury as the trier of facts. The judges distrust a jury’s ability to assay the words of a smali child or of a deranged person. Conceding the jury’s deficiencies, the remedy of excluding such a witness, who may be the only person available who knows the facts, seems inept and primitive. Though the tribunal is unskilled, and the testimony difficult to weigh, it is still better to let the evidence come in for what it is worth, with cautionary instructions.”

It seems clear, however, that this Circuit has not gone so far as to hold, in line with this modern trend, that the question of competency should be relegated to such a minor role. The test for competency of a child witness “depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.” And in United States v. Hardin, 143 U.S.App.D.C. 320, 443 F.2d 735 (1970), this court indicated a willingness to examine the subsequent testimony of a child witness in order to test the continuing validity of the original competency determination. In that case the testimony of the child “was logical, responsive, internally consistent and in no way indicate[d] that he did not have the necessary intelligence to testify as to what he observed.” Id., 143 U.S.App.D.C. at 322, 443 F.2d at 737. Annie Henderson’s testimony was not consistent.

The facts here, then, lead to a conflict between the trend toward limiting the importance of competency determinations, and the long-standing rules concerning the competency of children and the mentally incapable. However, the events at trial convince us that the trial court committed no prejudicial error in failing to strike, sua sponte, the testimony of the child. Defense counsel did not ask for an instruction on competency or ask to have the testimony stricken. On the contrary, counsel used the testimony to full advantage in closing argument in emphasizing the favorable aspects of Annie’s testimony and suggesting that the unfavorable aspects were the result of the subtle coercion of figures of authority during pre-trial interviews of the witness. The trial court was faced with a difficult question of competency but, in the absence of objection, proceeded to allow the testimony to be considered by the jury for whatever it was worth. If it was error, under the circumstances, it was harmless.

PROSECUTORIAL MISCONDUCT

Appellant also argues that the prosecutor engaged in impermissible and prejudicial advocacy in his closing arguments in the following incidents:

(1) The prosecutor stated that after Annie had testified that the victim had a gun she reverted to the story she had told the police in an interview that there was no gun. The prosecutor then characterized her testimony on cross-examination as follows: “Then defense counsel got up and questioned and she went back and vacillated back and forth as to whether the man had a gun or not.”

(2) In discussing Appellant’s testimony, the prosecutor emphasized alleged inconsistency between this testimony and that of Annie.

(3) The prosecutor stated that he personally disbelieved Appellant. This statement was followed by the trial court’s admonition to the jury that “the opinions of counsel with respect to these matters are not of your concern. Counsel can argue only the facts.”

(4) The prosecutor described Appellant as the victim’s “executioner.”

(5) The prosecutor referred to Annie’s written statement, which had not been introduced into evidence but which had been discussed before the jury, in his closing argument.

In considering the propriety of a prosecutor’s closing argument, we are guided by the oft-repeated admonition of the Supreme Court in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934), that the prosecutor may “strike hard blows”, but not “foul.” Admittedly this is an ambiguous standard. Each case must be considered separately.

(6) We hold that the use of the term “executioner” does not warrant reversal although we do not condone its use in counsel’s argument. Perhaps counsel for the Government should be reminded of this court’s statement in Taylor v. United States, 134 U.S.App.D.C. 188, 189, 413 F.2d 1095, 1096 (1969):

“We need not characterize the prosecution argument here as foul to conclude that the prosecution has an obligation to set an example of professional conduct. The Government may prosecute vigorously, zealously with hard blows if the facts warrant, for a criminal trial is not a minuet. Nevertheless, there are standards which a Government counsel should meet to uphold the dignity of the Government. The language of the prosecutor here was hardly in keeping with what the Courts and the public expect of its representatives. We take this occasion to remind the bar, prosecutors and defense counsel alike, that we expect — indeed insist — that their conduct reflect that they are officers of the court as well as advocates for a cause.”

It is equally incumbent on counsel to confine his remarks in summation to facts which are in evidence and the reasonable inferences therefrom. In referring to Annie’s prior statements the prosecutor noted:

“Remember when we tested her credibility, we went back and I asked her about the statements she had initially given to the police when she hadn’t said anything about the man having the gun. And then I asked her about coming to my office and I always told her to tell the truth and what she said to me. She came around then and she then said, after thinking it over and over, he had nothing in his hands, he didn’t have a gun.”

This does come close to inviting the jury to use the prior statements as substantive evidence contrary to the rule in this circuit. However, the statement of the prosecutor did involve matters which were in evidence through Annie’s own testimony when the prosecutor was permitted by the trial court to cross examine. Thus the rule of Johnson v. United States, 121 U.S.App.D.C. 19, 21, 347 F.2d 803, 805 (1965), that “counsel may not premise arguments on evidence which has not been admitted” is inappo-site.

The prosecutor was also within permissible bounds in discussing the alleged inconsistencies between portions of Annie’s testimony and that of Appellant. We find no rule of law which would prevent a challenge of Appellant’s testimony in this manner, despite the obvious weaknesses of Annie’s testimony.

The prosecutor’s statement concerning Annie’s vacillation, has elements of truth but could be misleading. Annie did indeed vacillate in her testimony. However, the statement of the prosecutor gives the impression that Annie’s testimony during cross-examination was vacillating. Here again defense counsel made no effort to correct this impression. We hold that this too amounts to harmless error and may have been the result of trial tactics.

Finally, we have the prosecutor’s statement that he personally disbelieved the Appellant, followed by the court’s admonition to the jury to disregard opinions of counsel. This represents an obvious transgression, as this court has pointed out time and again in prior cases. See, e. g., United States v. Dews, 135 U.S.App.D.C. 185, 417 F.2d 753 (1969); Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767 (1969); Harris v. United States, 131 U.S.App.D.C. 105, 402 F.2d 656 (1968). It is also true that counsel’s failure to -object is not dispositive, “especially since objection cannot always procure realistic cure for damage.’’ United States v. Young, 150 U.S.App.D.C. 98, 104, 463 F.2d 934, 940 (1972). Nor does the fact that the jury was cautioned by the trial court necessarily foreclose reversal. As this court noted in King v. United States, 125 U.S.App.D.C. 318, 372 F.2d 383 (1966), “where the case is close, prejudice cannot be avoided by ‘mild judicial action’, and reversal is necessary to obviate the consequences of prosecutor’s persistent departure from his ‘duty to refrain from improper methods’ to obtain conviction.” The question, however, is one of degree, and in regard to the allegations of prosecutorial misconduct in the instant case we cannot hold that the misconduct of the prosecutor was “so persistent and prejudicial” as to warrant reversal.

We realize that “whether improper conduct of Government counsel amounts to prejudicial error depends, in good part, on the relative strength of the Government’s evidence of guilt.” Jones v. United States, 119 U.S.App.D.C. 213, 338 F.2d 553 (1964). And it is quite evident that the Government’s case here, on the critical issue of self defense, was rather weak. Our inquiry must be directed to ascertaining the impact of the misconduct on the fairness of the trial. In the context of this case, Appellant’s argument concerning prosecutorial misconduct raises similar considerations as his argument that the cumulative effect of numerous errors, errors which are individually insufficient to warrant reversal, requires reversal. To this argument we now turn.

The evidence presented by the Government was sufficient to raise a jury question of guilt. At the close of the prosecution’s case there was evidence that Appellant left the house armed with a loaded shotgun after being told that some men were tampering with his car, that he talked to the men and received an abusive reply, that he thereafter fired a shot from about forty feet which struck the victim and was the cause of death, that when the victim fell he was holding no weapon, and that no other weapon was found near him. Appellant’s testimony provided an admission of the shooting, his recognition of one of the men, the flight, and the disposal of the shotgun. The critical issue was self defense. There was evidence that the fatal shot was purposeful rather than wild, that there was no other weapon, and that Appellant fled leaving others behind, all of which could be considered by the jury as being inconsistent with Appellant’s claim of self-defense. The jury, of course, was not required to believe Appellant’s testimony about the incident, including the statement that the victim reached for a pistol.

We have juries to make decisions such as this one. Guilty beyond a reasonable doubt was the jury’s verdict. While defendant did not have a perfect trial, we conclude that he had a fair trial. In addition, the errors noted above are harmless in a cumulative sense also, for in relying on the standard of the impact of the jury, we feel that the record supports the conclusion that the jury was not prejudicially influenced thereby.

We affirm the judgment of conviction and sentence.

BAZELON, Chief Judge,

dissenting:

As the majority recognizes, “it is quite evident that the Government’s case here, on the critical issue of self defense, was rather weak.” For that reason I am “unable to say with fair assurance that the verdict was not swayed” by the cumulative effect of the errors at trial. United States v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451, 461 (1970).

      . Appellant also argues that the lower court erred in not granting his motion for acquittal. We hold that the trial court did not err in this respect. See note 18, infra, and accompanying text.

      . This court has indicated that although certain errors standing alone might be insufficient to overturn a verdict, these errors may exert a cumulative effect such as to warrant reversal. The critical inquiry is an analysis of the “probable impact, appraised realistically, of the particular [errors] upon the jury’s fact-finding function.” United States v. Wharton, 139 U.S.App.D.C. 293, 299, 433 F.2d 451, 457 (1970).

      . The instruction given was as follows:
      “Flight and concealment does not give rise to a presumption of guilt. You may not find the Defendant guilty of either murder in the second degree or manslaughter because of flight and concealment alone. You may consider evidence of flight and concealment, however, as circumstances tending to prove consciousness of guilt, depending, of course, upon your appraisal of the proof as a whole.
      “Now, you ought to approach this aspect of the case with great caution. If you accept the Defendant’s explanation as credible, it will affect the weight that you are to give the entire question. If you are in doubt, you need not consider flight or concealment at all, one way or the other, in reaching your verdict.
      “Now, your own common sense will, I am sure, assist all of you in weighing this matter of flight and concealment. Obviously, experience teaches that sometimes innocent people, caught in a web of incriminating circumstances, may become frightened and flee or conceal. Flight or concealment may be prompted by a variety of motives other than guilt and may be an extremely complex reaction. Obviously, experience also teaches that sometimes people who commit crimes and are conscious of their guilt fear apprehension and may flee and conceal to avoid being held responsible. It is for you in this case to decide what weight if any to give flight and concealment, after weighing all the other proof and including the extent and nature of the flight and concealment, the circumstances under which it occurred, and all explanations mentioned or suggested by the Government and the Defendant in the light of the proof as a whole.”

      . See e. g., United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972).

      . Fed.R.Crim.P., 30, 52.

      . The uncertain testimony of this witness is also referred to in Appellant’s arguments concerning the sufficiency of the evidence and the alleged prosecutorial misconduct.

      . The trial judge recognized this difficulty when he commented, out of the presence of the jury: “With respect to [Annie’s] testimony, it has very little probative value of any shape or description.”

      . United States v. Hardin, 143 U.S.App.D.C. 320, 322, 443 F.2d 735, 737 (1970).

      . C. McCormick, Evidence § 62 (2d ed. 1972). The proposed Rules of Evidence for the United States District Courts and Magistrates reflect this viewpoint in Rule 601, “Every person is competent to be a witness except as otherwise provided in these rules.” The Advisory Committee’s Notes make this dear:
      “No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. . Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence.”

      . Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939).

      . See Fed.R.Crim.P., 52.

      . United States v. Jenkins, 140 U.S.App.D.C. 392, 436 F.2d 140 (1970); United States v. Jones, 140 U.S.App.D.C. 1, 433 F.2d 1107 (1970).

      . Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967). Compare the proposed Buies of Evidence for the United States District Courts and Magistrates, Rule 801(d)(1). The trial court did caution the jury in this regard.

      . Cf. United States v. Marcello, 423 F.2d 993 (5th Cir.), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970).

      . It should be noted that the King holding was a result of an exaggerated example of prosecutorial misconduct, involving the prosecutor’s persistent and gross mischar-aeterization of certain psychiatric testimony.

      . This is the evidence wholly apart from Annie’s testimony.

      . Nor does the instant case run afoul of the holding in United States v. Bush, 135 U.S.App.D.C. 67, 416 F.2d 823 (1969), because the Government’s evidence did not establish in an uncontradicted way Appellant’s claim of self defense.
      At the conclusion of the defense case, defense counsel renewed his motion for judgment of acquittal. The trial court reserved judgment on the motion, but indicated to counsel the possible analogy between the instant case and Bush. The following day the defense counsel again made the motion, but the trial court denied it, distinguishing Bush on the grounds we have stated.

      . In considering the question of cumulative impact we have reached the following conclusions. The alleged errors associated with Annie Henderson’s testimony are inconsequential both because of its obvious lack of much probative value and because of its utilization by defense counsel in closing argument. However, the prosecutor’s actions in calling Appellant an “executioner” and in expressing personal disbelief in bis testimony are more serious because of the importance of Appellant’s credibility in relation to his claim of self defense. Although prosecutors should be discouraged from resorting to crude name calling, we cannot conclude that this name calling had significant impact in this case. Cf. United States v. James, 151 U.S.App.D.C. 304, 466 F.2d 475 (1972); United States v. Jenkins, 140 U.S.App.D.C. 392, 436 F.2d 140 (1970). The prosecutor’s expression of personal disbelief was followed immediately by the trial court’s cautionary instruction to the jury. Finally, there was evidence sufficient to negate the claim of self-defense. Under such circumstances it is clear that the cumulative impact of the errors below does not warrant reversal.


author: WILKEY, Circuit Judge:

text:
    UNITED STATES of America v. W. A. BOYLE, Appellant.
    No. 72-1749.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 2, 1973.
    Decided July 16, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 593.

      See also, D.C., 338 F.Supp. 1025.

      E. Barrett Prettyman, Jr., Washington, D. C., with whom Peter F. Rousse-lot, Washington, D. C., was on the brief, for appellant.
    Charles F. C. Ruff, Sp. Asst. Atty. Gen., Washington, D. C., with whom Thomas H. Henderson and Thomas L. Crowe, Attys., Dept, of Justice, were on the brief, for appellee.
    Before McGOWAN, TAMM and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Appellant W. A. Boyle is the former president of the United Mine Workers of America. Convicted on thirteen counts as an officer of the UMW of having (1) consented to unlawful contributions of labor union funds to the campaigns of candidates for federal office, (2) unlawfully converting union funds for the purpose of making such a contribution, and (3) conspired with others to commit these two offenses, appellant seeks reversal under a number of theories. We conclude that appellant’s conviction on all charges was proper and affirm the District Court.

1. Facts

Labor’s Non-Partisan League (League) was created in 1936 by the Congress of Industrial Organizations (CIO) to act as its legislative and lobbying arm. In 1940 the UMW left the CIO to become a separate entity. At that time the League as originally constituted disbanded, only to be immediately reconstituted as the lobbying and information branch of the UMW alone.

In persons and in property the League and the UMW have been closely identified. Since 1940 the president of the League and the current president of the UMW have been one and the same. From the time of the separation in 1940 until the time of the indictment in this case the League received all but a small portion of its funds from the UMW’s general treasury.

In 1947 Congress passed legislation which prohibited some forms of political contributions by labor organizations to candidates for federal office. Following the Act’s passage the League made no more contributions to federal candidates until the mid-1960’s.

In 1963 appellant Boyle became president of the UMW and automatically chairman of the League. In 1966 the UMW began again to be solicited for contributions by candidates for federal office, chiefly those who had recently discovered the “testimonial dinner” as a fountain of funds. Boyle knew of and authorized contributions which were made out of the League’s treasury for this purpose, as the trial jury found.

Robert Howe, .director of the League for a part of the time in question, testified that he was concerned that contributions by the League might violate 18 U.S.C. § 610, which makes it “unlawful . . . for any labor organization to make a contribution” to a federal campaign. He testified that he and James Kmetz, another employee and Howe’s successor as director, sought to hide the source of these funds by having checks on the League’s account made out to cash, depositing the proceeds in their personal accounts, and then making the contributions with a personal check. The evidence is sufficient to permit a conclusion that Boyle knew and approved of this practice, that he knew of Howe’s fears that the contributions were illegal, and that he knew and approved of efforts to conceal the source of the funds involved.

Monthly statements of these transactions were prepared. Appellant’s executive secretary, Suzanne Richards, instructed that only one copy of this be sent to Boyle’s office and that no copies be kept in the files of the League. Richards also instructed Howe to destroy any evidence that might incriminate Boyle or the UMW.

In the spring of 1969 the League’s treasury was depleted. At the request of Kmetz, Boyle authorized a transfer of $5,000, which he characterized as a “loan,” from the UMW treasury to the League. The jury concluded that this amount was actually transferred to facilitate the making of a political contribution by the League. This transfer was ratified by the International Executive Board of the UMW over two years after the “loan” in question.

II. Legality of the Political Contributions

As of the date of the indictment in this case, 18 U.S.C. § 610 (1970) provided in relevant part:

It is unlawful for . . . any labor organization to make a contribution or expenditure in connection with . [a federal election].
[E]very . . . officer of any labor organization, who consents to toy contribution or expenditure by the . . . labor organization . . . in violation of this section, shall be . [fined and/or imprisoned].

The trial court found that the contributions described above constituted a violation of this Act, and that appellant Boyle was subject to fine and imprisonment for consenting to these contributions. Appellant contends that his conviction under this statute was invalid because: (A) the Government did not allege or show and the jury did not find that the funds contributed came from an “involuntary” source prohibited under the statute, and (B) the statute is an unconstitutional infringement on the union’s freedom of speech.

A. The Need to Show an “Involuntary” Source.

On its face § 610 requires that the Government establish five distinct elements in order to prove a violation. The Government must prove beyond a reasonable doubt that (1) a labor organization (2) made a contribution or expenditure (3) in connection with a specified federal election (4) for purposes of active electioneering and that (5) the defendant officer consented to the making of the contribution. Appellant does not contest that the jury was properly charged on these elements, nor that there was sufficient evidence to permit the jury to find that these elements had been proved.

Appellant contends, however, that an additional element must be established to support a guilty verdict under § 610. He argues that there is, a violation if, and only if, money ultimately contributed to a political candidate was collected by that union or organization through payments “actually or effectively required for employment or union membership.” Such funds would, for example, be money collected from members in the form of dues or assessments and may be characterized as being given “involuntarily” to the union or affiliated organization in order for a person to remain a member of the union. Appellant contends that only contributions of such “involuntary” funds are forbidden, that the union is free to contribute any other funds it controls if those funds come from a “voluntary” source. Such a voluntary source, according to appellant, could be contributions by union members not required for membership or gifts to the union from outside sources.

Appellant’s argument is based on language in the Supreme Court’s decision in Pipefitters v. United States. That decision held that not all political contributions by labor organizations are prohibited by § 610, but only those derived from funds which “were actually or effectively required for employment or union membership." This additional element of the offense in Pipefitters was found by the Supreme Court not in the express language of the statute, but rather in the legislative history of the enactment. The opinion reversed the convictions because the “jury instructions failed to require proof of [this] essential element for conviction . . . ” Appellant argues that in Boyle’s case, as in Pipefitters, the jury was not instructed and did not find that the contributions came from an “involuntary” source.

We believe, however, that appellant misconstrues the import of the language relied on in Pipefitters. The Court there repeatedly emphasized that its discussion dealt with a separate, segregated fund in which there was “strict segregation of its monies from union dues and assessments.” The Pipefitters fund was composed of contributions by union members that were not required for membership and which at least superficially did not appear to have been the product of a coercion. “Strict segregation,” combined with the appearance that the funds were not coerced from union members, raised a presumption that the money contributed was derived from a “voluntary” source. Logically, when the union has taken the precautions necessary to make it appear that the funds were given voluntarily for use in political campaigns, the burden should be on the Government to prove the contrary.

In Boyle’s case, though, contributions were made from funds derived from the general UMW treasury, which was composed predominantly of dues, assessments and other “involuntary” funds. The UMW made no effort to segregate dues and assessments from funds that might be legally contributed to political campaigns.

The legislative history of § 610 reveals Congress’ primary concern that funds from a general union treasury not be available for federal political campaigns. The Court in Pipefitters explicitly interpreted the section as being designed to prohibit expenditures from the “general union treasury.”

The clear intent of § 610, as evinced in the legislative history and interpreted by the Supreme Court, is to permit expenditures from separate, segregated funds if the contributions to it were, in truth, voluntary, and to prohibit expenditures from a union’s general treasury. If the Government proves that the source of the funds directed to a political contribution is the general union treasury, derived in part from dues and assessments, this is all that need be established on the question of voluntary or involuntary contributions.

This interpretation is the only one consistent with the policies underlying § 610. Appellant’s contention, stripped of legalisms, is that the Government must show in all circumstances that the contributions could not have come from a “voluntary” source. Since the funds expended here were derived from the UMW general treasury, this reading would require the Government to determine the source of all funds that have flowed through the treasury during the period in question, and to prove that this amount (which could run into the hundreds of millions) could not have been derived from a voluntary source. This would place an insuperable burden on the Government; likewise, and even more perniciously contrary to the avowed objectives of the Act, it would also place a premium on poor bookkeeping by discouraging unions from maintaining complete records of revenue. The resulting difficulty in tracing the sources of union contributions would make § 610 virtually useless.

In Pipefitters the Court held that solicitation of contributions for the segregated political fund “must be conducted under circumstances plainly indicating that donations are for a political purpose and that those solicited may decline to contribute without loss of job, union membership, or any other reprisal within the union’s institutional power.” There is no contention that there was ever a report to the UMW membership that any transfers were being made from the general UMW treasury to the League. In fact, evidence shows that steps were taken to conceal this. Appellant’s argument on voluntariness thus is in first and last analysis an argument that “contributions” by UMW members were “voluntary” when the individual UMW member knew, and could have known, nothing about his own “contribution.” Congress intended to protect individual union members against both overtly coerced and unknown contributions ; each is equally involuntary.

Boyle’s case, involving transfers from the UMW general treasury derived principally from dues, assessments, and other obligatory member contributions, is thus different from Pipefitters. Where there are individual contributions to a fund which is ostensibly set up as a separate “voluntary” affair, then there is a rational justification for requiring the Government to prove, and the jury appropriately to be so charged, that the contributions ultimately employed politically were involuntary. This the Supreme Court held in Pipefitters. But in Boyle’s case the “contributions” to the separate fund, the League, were alleged to be a series of massive infusions from the UMW’s general treasury, not a multitude of contributions from individual members, as in Pipefitters. Boyle’s evidence raised no issue of the “voluntariness” of individual members’ contributions to the UMW general treasury; quite the contrary, dues, assessments and other obligatory payments were accepted as making up the individual members’ contributions.

Hence a jury charge of the style found necessary in Pipefitters would have raised an issue of “voluntariness” of individual contributions that does not exist in Boyle’s case; the undisputed evidence establishes the involuntary nature of the members’ contributions to the UMW general treasury; the jury should never have been permitted to find that individual members authorized “voluntary” political contributions of which they knew nothing, and the jury was not so instructed.

The proper issue here, by which the Government was required to and did satisfy its burden of proof of involuntariness, was the source of the funds transferred into the League account. If this source was the UMW general treasury, its nature established the funds as involuntarily obtained from the UMW members; no subsequent legerdemain by an official or board of the UMW could make voluntary what had been involuntary in origin. Clearly, the indictment here alleged that the source of the contributions was the UMW general treasury. Sufficient evidence was adduced at trial to permit the issue to reach the jury, and the jury was properly instructed that it must find that the contributions came from such funds. The Government, consequently, established and the jury found all of the elements necessary to show a violation of § 610.

B. The Constitutionality of § 610

Appellant argues that even if Pipefitters does not compel reversal, the convictions under § 610 must be overturned because that statute imposes an unconstitutional limitation on the union’s freedom of speech. He does not dispute that Congress may legitimately regulate federal campaign financing and that there must be valid reasons to limit spending by a union. Appellant contends, however, that the legitimate goals-of the statute may be achieved in a manner that will not so substantially restrict the union’s right to present its views by supporting candidates of its choice. If it is true that the legitimate goals of the statute may be achieved in a less restrictive manner, the statute is overbroad. Even when a compelling interest exists, if the statute protects that interest by a needless infringement of First Amendment rights, it must be struck down.

Appellant seeks to invoke this principle by pointing to one purpose of § 610, to assure the purity of the federal electoral process by preventing undue influence by labor unions who might use the aggregated wealth of their general treasuries in federal elections. He then contends that this goal may be achieved less restrictively by limiting the maximum amounts which could be contributed by unions, rather than by banning contributions entirely. This misapprehends the scope and scheme of § 610. That provision, as interpreted in Pipefitters, only prohibits contributions from monies which are not strictly segregated from union dues and assessments. Appellant’s suggested alternative would actually be more restrictive than § 610; unions may now contribute any amount so long as it is from a proper source, while under appellant’s suggestion the maximum would be limited.

Appellant then points to a second purpose of § 610, to assure that a dissenting union member is not forced to contribute, in the form of mandatory dues and assessments, to support political views with which he disagrees. Appellant contends that this admittedly justifiable goal of protecting minority interests could be protected less restrictively in one of two ways.

First, appellant asserts that minority interests are adequately protected by the “democratic” procedures under which a union must operate. It is argued that majority approval of political expenditures would somehow validate the unwanted burden placed upon dissenters. Democratic majority rule does not, in itself, necessarily protect minority interest. Indeed, it is based on the premise that the losing side (the minority) must accept the dictates of the winning side (the majority). Democracy in labor unions as elsewhere, without additional protection, does nothing more than hold forth the possibility that in time the minority may become the majority. By definition the protection of minority interests requires that the majority be restrained in exercising its will over the minority. If a union could expend “involuntary” funds upon the vote of a majority of its members, minority interests would not be protected — they would be rendered irrelevant.

Second, appellant argues that Congress could have protected minority rights by adopting the mechanism employed in Great Britain. This permits the refunding of a proportionate amount of a member’s dues if the dissenter gives notice of his disagreement. Appellant argues that

[l]egislation protecting the minority union member could be drawn to permit either of two forms: “contracting in,” in which all members approving of the proposed political assessment would be required to give affirmative evidence of such approval, or “contracting out,” in which a union member objecting to the political use of a portion of his dues could refuse to tender that particular assessment.

This argument ignores the fact that § 610, as interpreted in Pipefitters, does establish a system of “contracting in” just as appellant suggests. Unions are permitted to make contributions if assenting members “give affirmative evidence of such approval” by assenting to having a deduction made from the member’s pay check.

Assuming, only arguendo, that § 610 does restrict in some degree a union’s otherwise unlimited right of free speech, appellant has failed to advance a less restrictive alternative to § 610 which will both prevent the use of a union’s aggregate wealth in federal elections and protect union minority interests, and we have found elsewhere no such viable less restrictive alternative. We hold § 610 to be constitutional.

III. The § 501 Conviction

Appellant allegedly violated 29 U.S.C. § 501(c) (1970), which provides that

any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer . . . [will be subject to fine or imprisonment].

The jury found that appellant violated this law by ordering the transfer of the $5,000 “loan” described above from the UMW general treasury to the League treasury with the knowledge and for the purpose of making a political contribution. Appellant does not contest that the transfer was a conversion of union funds to “the use of another.” Rather, appellant argues that for two reasons this conversion was not unlawful.

First, relying on the Second Circuit’s opinion in United States v. Silverman, appellant argues that such a transfer violates § 501(c) only if the jury finds that (1) the conversion was made without a bona fide authorization by the union, or (2) that the union derived no benefit from the transfer. Appellant’s reliance upon the Silverman rationale is misplaced. The use to which the money was converted in that case, support of a candidate for state office, was not unlawful. The court stressed that there was no legal bar to the use if the transfer was properly authorized by the union.

Regardless of the validity of the Second Circuit’s analysis in situations where the use is lawful, the holding in Silverman has no relevance here. In the instant case the use to which the money was converted could not have been lawful. As we have seen, the contribution of the $5,000 constituted a violation of § 610. Neither authorization by any union officer or body, nor any resulting benefit to the union, would have rendered lawful the transfer of general union funds to a federal political campaign. In Pipefitters the Supreme Court specifically reserved the question whether even a unanimous vote of all union members could validate a union political contribution under § 610.

Thus, approval or benefit cannot make the conversion to “the use of another” in this case any less unlawful. If the use to which the money is knowingly transferred is unlawful, then the transfer constitutes a violation of § 501(c). The jury was properly, instructed that this was the applicable standard, that it had to find the appellant authorized the transfer knowingly for the purpose of making indirectly a political contribution, and there was sufficient evidence to support its conclusion.

Second, appellant seems to argue that § 501(c) was intended to punish union officials only if the jury finds that the officer did not have at the time a “bona fide belief in the legality of his action . ” The argument is that the statute is intended to punish only knowingly illegal or ultra vires expenditures, and that union officials will be granted great latitude in forming their bona fide beliefs as to whether an expenditure is within the legal objectives of the union organization. Under this reading, § 501(c) would never punish for a transfer, even if the official knew that the money was to be used for an unlawful purpose, if the official could have reasonably believed that the transfer was authorized under the union’s constitution, bylaws, and procedure. Appellant contends that he was prejudiced by the court’s refusal to permit him to argue as a defense that he believed the transfer was authorized.

This interpretation is founded upon passages in the Congressional debates on the statute in which individual Congressmen discussed, in general terms, the Labor-Management Reporting and Disclosure Act of 1959, of which § 501(c) is a small part. The thrust of the dialogue relied upon is that the Act will not punish an officer for an expenditure

[i]f it is made in accordance with, and for a purpose permitted by, the constitution, bylaws or regularly adopted resolutions of the union’s constitutional governing bodies, the officer or employee will not be required at his peril to determine whether or not the constitution, bylaws or resolution goes beyond the legitimate purposes and objectives of the organization.

The relevance of this language in this context is at best ambiguous, and the remarks by individual Congressmen made during a floor debate are not the most persuasive form of legislative history. We believe, in any case, that the remarks relied upon do not support appellant’s reading of the statute. The passage simply says that a transfer will not be deemed unlawful merely because it is made for a purpose that is ultra vires what the court determines to be the legitimate functions of a union.

As we have noted, however, the transfer in this case was not for a purpose that was ultra vires, but rather for a purpose that was itself a crime. There is no hint in either the statute or its legislative history that indicates a Congressional intent to excuse from the ambit of § 501(c) transfers for a criminal purpose. No officer or union governing body could in all logic believe that a transfer for a criminal purpose was for a legitimate union purpose, was authorized by the union constitution or bylaws, or was for the union’s benefit.

Appellant argues that our construction means that § 501(c) duplicates 18 U.S.C. § 610, which was discussed above. The argument is that Congress could not have intended to enact two statutes that punish officers for contributions to federal political campaigns, and hence § 501(c) must be construed as requiring something that is not required for a violation of § 610 — specifically, knowledge that the act is unauthorized.

This argument fails, because the statutes as we construe them do not punish identical conduct. Section 610 punishes officers who “consent to” political contributions. Section 501(c) punishes, in this case, an officer who “abstracts or converts” union funds to use in a federal political campaign. The first statute is violated by an officer who simply knows of and acquiesces in the expenditure of union funds for a political campaign; the second requires some affirmative action to transfer union funds for this or any other unlawful purpose, and the unlawful objective may or may not have anything to do with prohibited union political contributions.

IV. Conspiracy to Commit the Substantive Offenses

Count one of the indictment charged that appellant conspired with Owens, Kmetz, Richards and another alleged co-conspirator to commit the substantive acts of conversion and unlawful contributions to federal campaigns. Appellant does not contest that if the conversion and contribution were indeed unlawful, that there was sufficient evidence of a conspiracy to commit those crimes to permit the submission of the issue to the jury. Rather, he argues that the same proof was introduced to prove the conspiracy and the substantive counts, and that he was consequently convicted twice for the same offense in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution. Under this theory, the substantive and conspiracy counts would have merged into a single offense and the Government could not have proceeded under both. Appellant also suggests that while the conspiracy conviction may have been proper in a narrow technical sense, this court, under its general supervisory power over federal criminal trials, may set aside the conspiracy conviction as being somehow unfair or unjust.

A. Double Jeopardy

“It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both. See Pinkerton v. United States, 328 U.S. 640, 643-644 [66 S.Ct. 1180, 90 L.Ed. 1489], and cases cited therein. Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy.” It is also irrelevant that the “overt acts charged in the conspiracy counts were also charged and proved as substantive offenses.” This general rule is based on the fact that

a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of people.

Appellant argues that since the same proof was introduced to prove both the conspiracy and substantive offenses, there is an identity of offenses requiring a merger. The issue, however, does not turn on the identity of evidence actually produced but on whether the same evidence is required to prove the two offenses. In this case, the requirements for conviction under the conspiracy count were the agreement between Boyle and at least one co-conspirator and the doing of at least one overt act (not necessarily making the contribution) in furtherance of that agreement. Consummation, or success, of the conspiracy was unnecessary. In order to convict under any of the substantive counts, the crime must have been completed — i. e., the contribution actually made. It is also clear that appellant could have been convicted on the substantive counts without proving an agreement between himself and the eo-eonspirators charged in Count I. Therefore, § 610 and the conspiracy-statute do not punish the same thing.

There is, however, an exception for situations in which the conspiracy to commit a crime produces no additional danger to society. If the statute defining the substantive offense requires concerted action and none participated other than the necessary parties, there is no additional danger and a charge of conspiracy to violate the statute will not lie:

There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356 [46 S.Ct. 513, 70 L.Ed. 986]; Gebardi v. United States, 287 U.S. 112, 121-122 [53 S.Ct. 35, 77 L.Ed. 206].

Taking these principles as established, it is clear that both statutes here involved, 18 U.S.C. § 610 and 29 U.S.C. § 501(c), may be violated without necessarily involving any concerted effort of the alleged co-conspirators in this case. While § 610 arguably might require the concert of both a union officer who consents to a political contribution and a candidate who receives the contribution, yet the conspiracy to violate § 610 as charged here involved more than these two statutorily necessary parties; other union officers and employees in addition to appellant were involved in the conspiracy. Section 501(c), likewise, did not require the concert of the parties to this conspiracy. That statute may be violated by a union officer acting alone who “willfully abstracts or converts” union funds. Consequently the conspiracy to violate these statutes charged here does not fit within the narrow exception described above, but rather is governed by the principles set forth in Pereira v. United States, supra.

Appellant attempts to confuse the issue by arguing that on the facts of this case all of the alleged co-conspirators were required as a practical matter in order to violate §§ 501(c) and 610. For example, appellant states that he could not have drawn the checks on the League account without the endorsing signature of one of the co-conspirators; this co-conspirator is therefore argued to be “necessary” for the completion of the offense in this case. The practical test of what is necessary under given circumstances is not the decisive test; the critical factor is that this co-conspirator was not required to exist by the statute as an element of the offense. He was only “necessary” in the sense that a skillful getaway driver may be “necessary” to a successful bank robbery; he may have made the crime easier to commit, but he was not a necessary element of the crime as it is described in the statute. A participant is “necessary” to the commission of a crime, for purposes of merging substantive and conspiracy counts, if the substantive statute requires the person’s existence as an abstract legal element of the crime. Here that is simply not the case.

B. The Court’s Supervisory Power

Appellant argues that this court should exercise its “supervisory power over federal criminal trials” and overturn his conviction for conspiracy. This argument is based essentially on the contention that the use of conspiracy offenses may be subject to abuse in the hands of zealous prosecutors, who may allege conspiracy in an effort to gain tactical advantages, e. g., otherwise irrelevant evidence admitted. Appellant does not argue on this point that the conspiracy conviction was rendered in violation of currently applicable legal standards.

In effect appellant is asking this court to change the law of conspiracy — because the current law is unfair or bad policy. He cites no authority compelling this limitation and does not suggest a standard which we might adopt for determining when a conspiracy conviction might be allowed. He simply asks that we ignore the fact that his conviction is lawful under Supreme Court authority and reverse the trial court. Precedent, prudence, and modesty compel us to decline.

V. Conclusion

For the foregoing reasons, all convictions are

Affirmed.

      . This charge was based on the provisions of 18 U.S.C. § 610 (1970), which at the time of the indictment in this case provided:
      It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section.
      Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $5,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any contribution, in violation of this section, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if the violation was willful, shall be fined not more than $10,000 or imprisoned not more than two years, or both.
      For the purposes of this section “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

      . This charge was based on the provision of 29 U.S.C. § 501(c) (1970), which provides:
      Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both. (Emphasis added.)

      . This charge was based on the provisions of 18 U.S.C. § 371 (1970), which provides :
      If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

      . The full text of the thirteen-count indictment is set forth in the Joint Appendix at pp. 18-33. Count I of the indictment alleged that appellant and two other individuals conspired in violation of 18 U.S.C. § 371 (1970) to violate two federal statutes — 18 U.S.C. § 610 (1970) and 29 U.S.C. § 501(c) (1970). Counts II through XII of the indictment charged appellant with eleven substantive violations of 18 U.S.C. § 610 (1970). Count XIII of the indictment charged appellant with a substantive violation of 29 U.S.C. § 501(c) (1970).

      . There is actually no evidence in the record that the League’s funds came from any source other than the UMW general treasury. The Government, however, was unable to prove the origin of a relatively small portion of the League’s funds during the period of 1942 to the time of the offenses in this ease. Thus, we do not Jcnoto that all of the League’s funds came from the UMW treasury. Appellant attempts to make much of this inability to prove the source of this small portion of the League’s funds. This inability is, however, irrelevant, as we shall illustrate in Part IIA, ante.

      . See footnote 1, supra.

      . We do not understand appellant to contest the sufficiency of the evidence to support these and other facts stated in this section of our opinion.

      . Count XIII of the indictment charged appellant with violating 29 U.S.C. § 501 (c) (1970), by transferring the $5,000 from the UMW to the League account. Count XII of the indictment charged appellant with violating 18 U.S.C. § 610 (1970) by authorizing this $5,000 to be used as a campaign contribution.

      . Appellant’s brief at 14, quoting the Supreme Court’s decision in Pipefitters v. United States, 407 U.S. 385 at 439, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972).

      . 407 U.S. 385, 92 S.Ct. 2247 (1972).

      . Id. at 439, 92 S.Ct. at 2276.

      . Id. at 436, 92 S.Ct. at 2275.

      . Id. at 414, 92 S.Ct. at 2264. For other references in the opinion to the need to keep political funds separate from the general union treasury, see id. at 401, 416, 417, 421 and 429, 92 S.Ct. 2247.

      . See the analysis in Pipefitters, supra, at 407-414 and 416-427, 92 S.Ct. 2247.

      . Id. at 414, 92 S.Ct. 2247.

      . If “voluntary” and “involuntary” funds are commingled and then a portion is expended for political purposes, it is impossible to tell whether the “voluntary” or the “involuntary” money is being expended. One can only assume that a proportionate share of each is being spent. Thus Congress in prohibiting expenditures from a union general treasury simply acted on the principle that expenditures from commingled funds will be presumed to consist of proportionate shares of the different types of money. For this reason it was irrelevant that the Government was unable to show the source of a small portion of the money in the League treasury. A substantial, or huge, portion of the money in the League treasury was “involuntary” at the time of the contribution. This “involuntary” portion may be presumed to be a part of each expenditure from the commingled funds.

      . 407 U.S. at 414, 92 S.Ct. at 2264.

      . Joint App. at 3. As the Supreme Court said in Pipefitters: “ . . .an indictment that alleges a contribution or expenditure from the general treasury of a union or corporation in connection with a federal election states an offense. See nn. 47 and 48, infra. The unanimous vote of the union members or stockholders may at most (but we need not now decide) be a defense.” 407 U.S. at 416 n. 28, 92 S.Ct. at 2265.

      . Joint App. at 177-78.

      . See, e. g., Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). The issue of the statute’s constitutionality was explicitly preserved in Pipefitters, supra, at 400, 92 S.Ct. 2247.

      . See text accompanying footnotes 10-12, supra.

      . Appellant's Brief at 30.

      . Bid.

      . 430 F.2d 106 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971).

      . Id. at 112.

      . See quotation in n. 18, supra.

      . Joint App. at 184.

      . Appellant’s Reply Brief at 10.

      . 105 Cong.Rec. 17900 (1959) (remarks of Senator Kennedy) ; 105 Cong.Rec. 15690 (1959) (remarks of Congressman O’Hara).

      . 105 Cong.Rec. 15690 (1959) (remarks of Congressman O’Hara).

      . Pereira v. United States, 347 U.S. 1, at 11, 74 S.Ct. 358, at 364, 98 L.Ed. 435 (1954).

      . Pinkerton v. United States, 328 U.S. 640, at 644, 66 S.Ct. 1180, at 1182, 90 L.Ed. 3489 (1946).

      . Dennis v. United States, 341 U.S. 494, 573, 71 S.Ct. 857, 899, 95 L.Ed. 1137 (1951) (Justice Jackson concurring), citing from Miller on Criminal Law, 110; see, e. g., United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 59 L.Ed. 1211 (1915); Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

      . Cf. Pereira v. United States, supra, 347 U.S. at 11-12, 74 S.Ct. 358. See Woods v. United States, 99 U.S.App.D.C. 351, 240 F.2d 37, cert. denied, 353 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760 (1958).

      . Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946).

      . This co-conspirator was not “necessary” to the offense since appellant could have simply forged the signature of the co-signer of the check. At best, appellant’s argument is that he would have had to commit the crime of forgery in order to complete the crime of contribution without the co-conspirator.

      . Appellant’s Brief at 47.

      . Appellant refers to Judge Ely’s concurring- opinion in the decision in United States v. Vaught, 434 F.2d 124 (9th Cir. 1970), as support for his argument. A reading of Judge Ely’s brief comments makes it clear that he did not feel that the sort of relief requested here is possible under existing law. He is, rather, expressing a desire that such a change in the law be made at a future time. Id. at 125.

      . See cases cited in footnotes 30-33, supra.