author: TIMBERS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Gus SCLAFANI and Ben Ross, Appellants.
    Nos. 828, 829, Dockets 73-1017, 73-1048.
    United States Court of Appeals, Second Circuit.
    Argued May 10, 1973.
    Decided June 27, 1973.
    Certiorari Denied Nov. 12, 1973.

      Henry J. Boitel, New York City, for appellant Sclafani.
    Roy M. Cohn, New York City, (Gretchen White Oberman, and Saxe, Bacon, Bolan & Manley, New York City, on the brief), for appellant Ross.
    William I. Aronwald, Sp. Atty., Organized Crime and Racketeering Section, Dept. of Justice, Washington, D. C. (Whitney North Seymour, Jr., U. S. Atty., and John W. Nields, Jr., Asst. U. S. Atty., New York City, on the brief), for appellee.
    Before SMITH, MULLIGAN and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Appellants Gus Sclafani and Ben Ross appeal from judgments of conviction entered upon jury verdicts returned October 6, 1972 after a nineteen day trial before Edmund L. Palmieri, District Judge, in the Southern District of New York.

Sclafani was convicted on three counts of loansharking, in violation of the Extortionate Credit Transaction Act of 1968, 18 U.S.C. §§ 893 and 894 (1970); on one count of conspiring to finance an extortionate credit transaction, in violation of 18 U.S.C. § 371 (1970); on two counts of income tax evasion, in violation of 26 U.S.C. § 7201 (1970) ; and on one count of making a false statement, in violation of 18 U.S.C. § 1001 (1970). On December 4, 1972, an effective sentence of tén years imprisonment and a $30,000 fine was imposed on Sclafani.

Ross was convicted on two counts of loansharking, in violation of the Extortionate Credit Transaction Act; on one count of conspiring to finance an extortionate credit transaction; on three counts of income tax evasion; and on three counts of filing false and fraudulent income tax returns, the latter in violation of 26 U.S.C. § 7206(1) (1970). On December 11, 1972, an effective sentence of fifteen years imprisonment and a $90,000 fine was imposed on Ross.

The chief claim of error raised on appeal by both appellants is that they were precluded from calling a co-defendant as a witness at their trial because of certain remarks made by the trial judge in accepting the co-defendant’s change of plea and in sentencing him several months before the trial began. Other subordinate claims of error are raised by both appellants.

We affirm.

I.

Events Leading to Indictment In view of the issues raised on appeal, a summary description of the loansharking scheme of considerable dimensions which constituted the core of this case, and the conduct for which appellants were convicted, will suffice.

The scheme in substance was that appellants loaned ever increasing sums of money to two borrowers at enormous rates of interest. They proceeded to collect the interest and other payments by threats of death, maiming and other violence. The exorbitant interest rates and other terms of extortion, rather than alleviating the borrowers’ financial difficulties, forced them to borrow additional amounts. This continued to compound the plight of the victims. Eventually, faced with still further threats of physical injury and death, the victims turned to the FBI.

The sequence of events that led to the instant indictment began with the financial problems of Morton Kanof and Herbert Hurwitz, two contractors specializing in ghetto building reconstruction. In July 1968, Kanof and Hurwitz, who were then in need of $25,000, were put in touch with defendant Joseph Randaz-zo. He agreed to lend them the sum on these terms: interest at 3% per week; principal repayment in amount of $100 per week; two bogus payroll checks, each in amount of $125 per week, one of which was to go to defendant Joseph Maida; and a $2,000 bonus to Randazzo.

By October 7, Randazzo had delivered $10,000 of the $25,000 promised. Nevertheless, Kanof and Hurwitz were required to make payments pursuant to the original agreement. Subsequent deliveries of money and revisions of the loan resulted in the borrowers making payments in amount of $930 per week by the end of 1968.

Beginning February 1969, the borrowers’ payment checks started to bounce. They encountered increasing difficulty in making the required payments. Ran-dazzo began threatening them at gunpoint, purportedly on orders from higher • up.

In June 1969, Randazzo introduced Hurwitz to appellant Sclafani as the person who was to receive all further payments. Hurwitz was informed by Selafani that he “breaks legs, arms and heads” when necessary.

By late July 1969, Kanof and Hurwitz were in need of an additional $50,000. They had a meeting with Randazzo and Maida, at which it was agreed that this further sum would be loaned on these terms: the total principal would be computed as $100,000; interest at 3% per week would be paid on that principal amount; and four bogus payroll checks per week, each in amount of $175, would be required. The additional $50,000 was delivered to the borrowers by Sclafani and Maida in three installments by October 24, 1969. At that point the required weekly interest payments were in amount of $3,000.

In December 1969, Kanof and Hurwitz again encountered difficulty in making payments. Maida informed them that he was in trouble with his people. He introduced Kanof and Hurwitz to defendant Vincent Lore who made some direct threats and ordered prompt payment of the arrearage.

At a subsequent meeting between Maida, Lore and the two borrowers, the latter requested a further $10,000 loan with which to make their back-payments. The loan was arranged at $4,000 interest to be paid over a four week period.

In March 1970, payments by Kanof and Hurwitz again became sporadic. This led to further threats from Lore. At Lore’s direction, a subcontract was entered into between the borrowers’ company and C & P Painting. The latter was controlled by defendant Angelo Tuminaro and appellant Ross’ son-in-law, among others. The company was identified by Lore as “my friends”. The subcontract turned out to be a no-profit contract for the borrowers. After one week, the subcontract was breached by C & P. Lore arranged several meetings between the principals at C & P’s offices; and at each meeting Lore left the borrowers to converse with Ross.

From that point on, there were frequent defaults in payments on the part of Kanof and Hurwitz. On May 4, Lore instructed the borrowers to deliver the payment for that week at a specified site or they would be killed. That payment was made as directed.

Shortly thereafter, Kanof and Hur-witz obtained some stock upon which they hoped to be able to obtain a loan. They informed Lore. He directed them to go to a particular bank branch and to inform a specified officer that they had been sent by Ross. The instructions were followed, but the bank refused to make a loan’ on the stock.

In June, in addition to the weekly payments, Lore demanded and received from the borrowers some $500 worth of plumbing fixtures. Also during June, Lore directed Kanof to determine the feasibility of converting a certain Brooklyn building into a drug rehabilitation or day care center in satisfaction of the back-payments due. It was later learned that the building was owned by a corporation of which Ross and Tumi-naro were the principals. When the proposed conversion proved unfeasible, Lore told the borrowers to forget they had ever seen the building.

The demands upon the borrowers continued. At one point Lore actually bit Kanof’s hand and threatened to gouge out Hurwitz’s eyes. Gunpoint confrontations followed. At another time, Lore stabbed Kanof’s hand with a table fork and bit Kanof’s face.

On August 11, following some further inquiries into the value of a Brooklyn building owned by the borrowers, Lore directed that the mortgage on that building be transferred to Ross’ daughter. Sometime around that date the borrowers met Tuminaro for the first time. At this meeting, Tuminaro told them that Lore had been too easy on them and that if they were really having trouble raising money they should rob a bank. Tuminaro said that he and Lore would supply a gun.

Lore subsequently suggested to Kanof that he take out an insurance policy on Hurwitz’s life in the amount owed and that Lore and his people would arrange for Hurwitz’s death.

On October 15, Lore directed the borrowers to execute the mortgage assignment on their Brooklyn building to appellant Ross, not to his daughter. The assignment was executed accordingly and was recorded.

On November 3, Kanof and Hurwitz were given an ultimatum by Lore that unless they came up with $10,000 they would both be killed. Kanof and Hur-witz went to the FBI. On November 4, a conversation was taped in which Lore repeated his threats of the day before. On the following day, the borrowers met Maida and Lore while under FBI surveillance. Maida and Lore thereupon were arrested.

By July 1971, Sclafani and Randazzo also had been arrested. The original extortion indictment was returned against those four, as well as against Tuminaro who at that time was a fugitive.

In August 1971, the four who had been arrested were released on bail. Lore and Tuminaro met with Ross. The FBI investigation was the topic of discussion. Ross referred to the $50,000 that “we” had loaned to Hurwitz. A meeting with the borrowers was then sought in an attempt to change at least Hurwitz’s testimony. This resulted in a separate indictment returned September 16, 1971 charging Lore, Ross and Tumi-naro with obstruction of justice (the “obstruction of justice indictment”).

The instant extortion indictment against Lore, Maida, Randazzo, Tumina-ro, Sclafani and Ross was returned November 3, 1971.

At the trial of the extortion indictment, Sclafani did not testify and called no witnesses. Ross did testify and he called three witnesses. His defense in substance was a denial of any knowledge of the scheme or any connection therewith, together with the assertion that one Hymie Rabinowitz (who was dead at the time of trial) was the kingpin and not Ross.

There was a great deal of other evidence adduced at the four week trial. The evidence of course must be viewed in the light most favorable to the government at this stage of the case. United States v. D’Avanzo, 443 F.2d 1224, 1225 (2 Cir.), cert, denied, 404 U.S. 850 (1971). Ross does not challenge the sufficiency of the evidence at all, as his counsel made very clear to us at the argument of this appeal. Nor does Selafani, with the exception of certain claims with respect to the income tax evasion counts and counts 3 and 4 which charge violations of 18 U.S.C. § 893.

We hold that the evidence overwhelmingly and conclusively established the guilt of both appellants on all counts upon which they were convicted.

II.

Claim That Appellants Were Precluded'From Calling Co-Defendant Lore As A Trial Witness

We turn directly to the chief claim of error raised on appeal by both appellants: that they were precluded from calling co-defendant Lore as a witness at their trial because of certain remarks made by the trial judge — some three to five months before the trial — in accepting Lore’s change of plea and in sentencing him. A summary of the proceedings in the trial court involving this claim is necessary to an understanding of our ruling thereon.

On November 16, 1971, a not guilty plea had been entered by the court on behalf of Lore to each of the nine counts in which he was named in the extortion indictment.

On April 3, 1972, accompanied by counsel, Lore appeared before Judge Palmieri, withdrew his not guilty pleas and pled guilty to count 3 (conspiracy to finance an extortionate credit transaction) and to count 11 (income tax evasion). At the same time, he pled guilty to one count of conspiracy to obstruct justice as charged in the separate indictment returned September 16, 1971 against Lore, Ross and Tuminaro. Before accepting Lore’s guilty pleas, Judge Palmieri conducted an exhaustive voir dire by personally addressing Lore, pursuant to Fed.R.Crim.P. 11, to determine whether there was a factual basis for the pleas and whether they were made voluntarily with understanding of the nature of the charges and the consequences of the pleas. During the course of the voir dire, Lore acknowledged the correctness of transcripts of tape recordings' squarely implicating him in many of the essential transactions involved in the counts to which he was pleading guilty. A presentence report was ordered and sentencing was tentatively scheduled for May 17.

On the same day, April 3, another co-defendant, Maida, pled guilty to counts 3 and 7 of the extortion indictment which charged him with the same corresponding offenses as those to which'Lore pled guilty. Judge Palmieri conducted a similar voir dire of Maida. Sentencing of Maida also was tentatively scheduled for May 17.

At the conclusion of the change of plea proceedings on April 3, Judge Pal-mieri, at the request of government counsel, cautioned both Lore and Maida to stay away from any prospective witness in the case.

Following the death of Lore’s father and the postponement of Lore’s sentencing, counsel for Lore moved on June 12 for imposition of sentence before the end of the month, without waiting for the conclusion of the trial of Sclafani and Ross which in the meanwhile had been further postponed. Lore had written a letter to Judge Palmieri on May 27 stating that the death of his father had left him responsible for his mother as well as his wife and two children; and that he was anxious to straighten out his life by paying whatever penalty he had to pay and getting it over with. Judge Palmieri was “very deeply impressed by this young man’s desire to square himself with God and family . ” He indicated that he was inclined to grant Lore’s motion for imposition of sentence.

The government initially opposed having Lore sentenced before the trial was concluded. Government counsel pointed out that the court would be in a better position to sentence Lore after it had heard the trial evidence; and that, if Lore should testify at the trial, the court could take that into consideration in imposing sentence, including any false testimony.

Judge Palmieri then made this proposal:

“The Court: I have a way out of that. I can impose a sentence that I think he ought to have on one of the counts and I can leave the other count open with a reservation that if he takes the stand and commits perjury I would take into account all of the subsequent conduct with respect to the other count.
If I had no reason to suspect this man was acting in bad faith, but was trying to unburden his soul of his problem, then I would just make the sentence concurrent with the other count.”

After some further colloquy, the court indicated that it intended on June 28 to sentence Lore on the two counts in the extortion indictment to which he had pled guilty, and to defer imposition of sentence on the obstruction of justice count until after the trial was concluded. Counsel for the government and counsel for Lore agreed to this procedure. The case was continued to June 28 for sentencing.

On June 28, Lore was sentenced, pursuant to 18 U.S.C. § 4208(a) (2) (1970), to concurrent four year terms of imprisonment on each of the extortion indictment counts to which he had pled guilty. Judge Palmieri then said, “The sentence on the obstruction of justice indictment . . . will remain open, and I postpone sentence sine die on that, to abide the disposition of the trials and pleas of the other co-defendants.” On motion of the government, the remaining seven counts of the extortion indictment were dismissed as against Lore.

In his remarks to the court on June 28 before sentence was imposed, Lore’s counsel stated:

“. . .1 know it is my feeling that in any trial here Mr. Lore should stay absolutely as far away from participating as the law would permit. If Mr. Aronwald or anybody else feels that a subpoena is appropriate, to have him come, we will come and he will testify and he will tell the truth. But other than that, your Honor, he has no intention of being a voluntary participant for anybody. I don’t think that this is at all inappropriate, given the circumstances, and I don’t think that it should weigh one way or the other. If Mr. Aronwald wants to subpoena him and put him on the stand, he is going to tell the truth, but it is not his intention to come for anybody.”

In like vein, Judge Palmieri said to Lore immediately before imposing sentence:

“Your attorney told me that he hopes that you will stay as far away as possible from the unfinished cases, and I hope that will be true. I hope that you will have the courage and the strength to tear out the roots that you have in this community, because I think that they are like an infected sore. I think that you have been brought up, up to this point, exposed to crime and with people involved in crime, and as long as you stay within shouting distance or even communication distance of these people your future is going to be tainted and infected. I think that you ought to find new horizons in a new community, far away from the one in which you have lived and to find new strength and new rewards far away from the people who have poisoned your existence and placed you on the road of delinquency.”

Based on the foregoing, both appellants argue that they were precluded from calling co-defendant Lore as a trial witness and consequently were denied due process of law in violation of the Fifth Amendment and their right to compulsory process in violation of the Sixth Amendment. We disagree.

First, with respect to the procedure followed by Judge Palmieri in leaving open the imposition of sentence on Lore on the obstruction of justice count until “the disposition of the trials and pleas of the other co-defendants”, this clearly was within the discretion of the trial judge. Postponement of sentencing a defendant who pleads guilty until the conclusion of the trial of remaining co-defendants is done as a matter of course by trial judges, especially when requested by the government. Here Judge Palmieri was confronted with competing claims: the government requested that sentencing on all counts be deferred until the conclusion of the trial; Lore’s counsel requested immediate imposition of sentence on all counts. For the reasons stated by Judge Palmieri on the record, we hold that his accommodation of the competing interests by imposing sentence on the two extortion indictment counts and leaving open the imposition of sentence on the obstruction of justice indictment count was not an abuse of discretion.

Second, the record shows that Lore at all times was available to be subpoenaed as a witness by appellants, but that they chose not to do so. At the sentencing of Lore on June 28, his counsel said to the court: “If Mr. Aronwald or anybody else feels that a subpoena is appropriate, to have him come, we will come and he will testify and he will tell the truth.” At the proceedings on June 12, Judge Palmieri had stated: “I don’t want to deprive anybody of the right to call witnesses. It is a God-given right. The government could call him, just as [the defendants] could.” On the first day of trial, September 11, Lore’s counsel came to the courtroom at Judge Palmieri’s request and stated it was Lore’s position “that if he were subpoenaed he would tell the truth but other than that he doesn’t want anything to do with it.” In response Judge Palmieri said:

“The Court (addressing Lore’s counsel): Have you advised him that he is not immune from the service of subpoena and that he can be brought to court and questioned and has no right to claim immunity in this case and if counsel chooses to question him without prior conference, they have a right to do so ?
Does he realize he is under that Sword of Damocles ?
Mr. Owen (Lore’s counsel): He knows he can be subpoenaed and brought here. Whether he has certain Fifth Amendment rights given the nature of the questioning, I don’t know.
The Court : To the extent that any question would relate to this case, I don’t see how he can claim Fifth Amendment rights.
♦X1 * #
The Court (addressing appellant Ross’ counsel): Now, we have the same problem with this defendant [Lore]. It is not an unusual problem. He has pleaded guilty to the very charges leveled against your client and it is surprising to me that you feel he is your hope for exculpation. If you want him, his body will be produced but I can’t force him to confer with you.”

Despite the availability of Lore to be subpoenaed as a witness and the emphatic indication by Judge Palmieri that he would be required to testify if subpoenaed, neither Sclafani nor Ross ever subpoenaed him. And there was no doubt as to Lore’s whereabouts, for he had been incarcerated since his surrender on July 5, following the imposition of sentence on June 28.

Third, the record demonstrates, both directly and by strong inference, that there were compelling reasons (other than Judge Palmieri’s remarks) why neither appellant chose to call Lore as a trial witness. As a co-defendant, Lore had pled guilty to the charge of having conspired with both Sclafani and Ross to finance an extortionate credit transaction, and of having conspired with Ross to obstruct justice. Experience on the trial bench has taught that rarely if ever do defendants charged with conspiracy call as a witness on their behalf a co-defendant who has pled guilty to the very conspiracy for which defendants are on trial. That inhibition would appear to have been particularly strong here since appellants knew that at the time of Lore’s change of plea on April 3 he had acknowledged, during the voir dire conducted by the court, the correctness of transcripts of tape recordings squarely implicating him in many of the essential transactions involved in the counts to which he was pleading guilty. The summary set forth above of the loansharking scheme at the core of this case indicates the depth of Lore’s involvement, and particularly his dominant role in committing acts of violence. It is understandable therefore that Sclafani’s trial counsel, after listening to tape recorded conversations between Lore and the government’s key witnesses, felt that it would be harmful to Sclafani’s case if Lore were called on his behalf; and, accordingly, on the first day of the trial, September 11, he advised Judge Palmieri that “I had decided that, under no circumstances, would I call Vincent Lore, a co-defendant, as a witness for, or on behalf of, my client.” Ross’ trial counsel, on the sixth day of the trial, September 19, informed Judge Palmieri that Lore’s counsel had told him that Lore would be willing to confer with Ross’ counsel and that he “would testify to exculpate Ross.” The record is silent as to whether Ross’ trial counsel ever did confer with Lore. But Lore was not called as a witness by either Sclafani or Ross. As we recently observed in a closely analogous situation, “‘[i]f any general inference is to be drawn from the entire transcript . it would be that if either side had been disposed to call [the] witness it would have been the Government and that the probability that, after interview, the defendants would have decided not to call [the] witness is all but overwhelming.’ ” United States v. Mosca, 475 F.2d 1052, 1059 (2 Cir.), cert, denied, 412 U.S. 948 (1973).

Fourth, Judge Palmieri’s remarks at the proceedings on June 12 that “ . . .1 think from his standpoint it would be better if he had as little to do with the case as possible”, under the circumstances were neither threatening nor harassing nor did they effectively drive Lore as a witness off the stand. Such remarks, considered fairly and in context, obviously were intended to caution Lore against further association with those who had gotten him into trouble in this case — “the people who have poisoned your existence and placed you on the road of delinquency.” See Judge Palmieri’s sentencing remarks on June 28, supra. Earlier, at the time of Lore’s change of plea on April 3, both Lore and Maida had been instructed “to stay away from any witness or prospective witness in this case.” See note 4, supra. Such cautionary remarks and instructions clearly were justified by Lore’s record of having intimidated government witnesses subsequent to the original extortion indictment, see note 5, supra, and of having attempted to talk to one of the victim witnesses “about cooperating with Mr. Lore and his co-defendants in changing his testimony in this case.” See note 6, supra. But balanced against these cautionary remarks were Judge Palmieri’s repeated and emphatic statements that Lore was available as a witness to either side and that he would be. required to testify if subpoenaed. And Lore’s own counsel made it abundantly clear that, while Lore had “no intention of being a voluntary participant for anybody”, nevertheless “[i]f [government counsel] or anybody else feels that a subpoena is appropriate, to have him come, we will come and he will testify and he will tell the truth.” See remarks by Lore’s counsel at the sentencing of Lore on June 28, supra. In short, the record demonstrates beyond any doubt whatsoever in our minds that this is not a case where “the judge’s threatening remarks, directed alone at the single witness for the defense, effectively drove that witness off the stand.” Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam). Rather, this is a case where Lore did not appear as a witness because neither appellant chose to call him — for compelling reasons wholly aside from Judge Palmieri’s remarks.

Finally, for essentially the reasons discussed in detail above, we are satisfied that no substantial right or interest of either appellant was prejudiced by the remarks of Judge Palmieri to co-defendant Lore at his change of plea proceedings in April or at his sentencing proceedings in June. Even assuming arguendo — contrary to our holding — that appellants were precluded from calling Lore as a trial witness because of the remarks of the trial judge, our careful examination of the entire transcript of this nineteen day trial convinces us that Lore’s testimony could not conceivably have been helpful to appellants and it most assuredly would not have changed the result. Thus, “we are left with the firm conviction that [his] testimony would have had no effect on the outcome of the case, except possibly to strengthen the government’s evidence . ” United States v. Mosca, supra, 475 F.2d at 1060. The evidence of both appellants’ guilt in this case is not only overwhelming; it is conclusive. Appellant Ross does not challenge the sufficiency of the evidence at all. Appellant Sclafani challenges its sufficiency only in respects which are here immaterial. We hold that Judge Palmieri’s remarks, if error at all, were harmless, for we can say with fair assurance, “after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error . . . .” Kotteakos v. United States, 328 U.S. 750, 765 (1946). See Cohen v. Franchard Corp., 478 F.2d 115, 125 (2 Cir.), cert, denied, 414 U.S. 857 (1973); United States v. Mosca, supra, 475 F.2d at 1058; United States v. McCarthy, 473 F.2d 300, 308 (2 Cir. 1972); United States v. Ellis, 461 F.2d 962, 970 (2 Cir.), cert, denied, 409 U.S. 866 (1972).

III.

Claim of Misconduct by Trial Judge The only other claim of error which warrants brief mention — primarily in fairness to the trial judge — is the contention by both appellants that misconduct by the trial judge precluded a fair trial.. This claim focuses upon three aspects of the proceedings below: (1) denial of a motion to disqualify the judge; (2) conduct of the trial itself; and (3) the charge. We find no merit in any aspect of this claim.

(1) Motion To Disqualify On August 30, 1972 — twelve days before the trial was scheduled to begin — ■ appellant Ross filed a motion to disqualify Judge Palmieri pursuant to 28 U.S.C. § 144 (1970). The motion was accompanied by a seven page affidavit by Ross’ attorney and a one paragraph affidavit by Ross himself which adopted “[everything set forth in Mr. Goldberg’s affidavit.” The motion sought to disqualify the judge on the ground that remarks made by him at the sentencing of Lore two months earlier had manifested a personal bias against Ross. Judge Palmieri denied the motion in a written memorandum filed August 30. We hold that the motion was properly denied.

Disqualification is warranted and appropriate only if the alleged bias and prejudice stems from an extrajudicial source and has resulted in the formulation of an opinion on the merits not based upon what the judge has learned by his participation in the proceedings before him — a situation totally absent here. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).

A judge is duty-bound not to disqualify himself upon such a legally insufficient ground as that urged by Ross below. Rosen v. Sugarman, 357 F. 2d 794, 797 (2 Cir. 1966); In re Union Leader Corp., 292 F.2d 381, 391 (1 Cir.), cert, denied, 368 U.S. 927 (1961); Town of East Haven v. Eastern Airlines, Inc., 293 F.Supp. 184, 189 (D.Conn. 1968); United States ex rel. Rogers v. Richmond, 178 F.Supp. 44, 48 (D.Conn. 1958).

(2) Conduct of Trial

Appellant Ross, joined to some extent by appellant Selafani, has mounted a massive attack upon the conduct of the trial by Judge Palmieri. The claim in essence is that the judge so interfered with the course of the trial and demonstrated such bias against appellants as to preclude a fair trial.

In view of the nature of appellants’ claimed error in this regard and the vehemence with which the claim is asserted, we have carefully examined the entire trial transcript of more than 3200 pages covering this nineteen day trial. Daley v. United States, 321 F.2d 123, 128 (1 Cir.), cert, denied, 351 U.S. 964 (1956).

Based on our scrutiny of the record from cover to cover, we have reached the following conclusions:

(1) The conduct of the trial judge complained of was far from unprovoked by defense counsel.
(2) The trial judge’s remarks admonishing counsel for conduct which he believed to be improper were made, with very few exceptions, out of the presence of the jury — a distinction which unfortunately the briefs on appeal fail to make clear. See United States v. Boat-ner, 478 F.2d 737, 741 (2 Cir. 1973).
(3) In every instance complained of, where the judge either questioned a witness himself or interrupted counsel’s questioning of a witness, we are satisfied that the judge was doing his very best to clarify the issues and assist the jury in understanding the evidence. In short, the judge did precisely what we sanctioned in United States v. DeSisto, 289 F. 2d 833, 834 (2 Cir. 1961):
“A trial judge in criminal, as in civil, eases may, indeed must, be more than a mere moderator or umpire in a contest between two parties in an arena before him. He should take part where necessary to clarify testimony and assist the jury in understanding the evidence and its task of weighing it in the resolution of issues of fact.”
(4) We have not found a single instance of conduct on the part of the judge in this voluminous record covering the four week trial which, considered in context and in fairness to all parties, in any way prejudiced either appellant or displayed the slightest bias against them.

We hold that the conduct of the trial judge did not deprive appellants of a fair trial. Cohen v. Franchard Corp., supra, 478 F.2d at 125; United States v. McCarthy, supra, 473 F.2d at 307-08; United States v. D’Anna, 450 F.2d 1201, 1206 (2 Cir. 1971); United States v. De-Sisto, supra, 289 F.2d at 834; Daley v. United States, supra, 231 F.2d at 130.

(3) The Charge

Appellants’ attack upon the charge is based essentially on the claim that it was slanted in favor of the government and displayed bias against appellants. We have scrupulously examined the entire charge which occupies 130 pages of the transcript. We find no merit in appellants’ claim.

The judge’s summary of the evidence was entirely in keeping with our repeated suggestions to trial judges, particularly in a conspiracy case with multiple counts and multiple defendants. In summarizing the evidence and in commenting upon it, the judge exercised great care in reminding the jury that it was their recollection that controlled and not that of the court.

The instructions on the credibility of witnesses were in accordance, with standards uniformly approved by us and, in our view, were especially, appropriate in this case, including the instruction by which the credibility of a defendant who takes the stand is to be evaluated. See United States v. Mahler, 363 F.2d 673, 678 (2 Cir. 1966), and authorities cited.

In short, upon the entire record, we hold that the trial judge did “remain the judge, impartial, judicious, and, above all, responsible for a courtroom atmosphere in which guilt or innocence [was] soberly and fairly tested.” United States v. Brandt, 196 F.2d 653, 655-56 (2 Cir. 1952).

IV.

Other Claims

Finally, we have carefully considered each of appellants’ other claims of error. We find no merit in any of them either separately or cumulatively.

Appellants were convicted of serious crimes after a fair trial on the basis of overwhelming evidence.

Affirmed.

      . The indictment was returned November 3, 1971 (the “extortion indictment”, to be distinguished from the “obstruction of justice indictment”, referred to below). It charged defendants Vincent Lore, Joseph Maida, Joseph Randazzo and Angelo Tu-minaro, as well as the two appellants, with various violations. Prior to trial, Lore, Maida and Randazzo entered pleas of guilty. Tuminaro was a fugitive. The trial proceeded against Sclafani and Ross as defendants.

      . At this time, the trial was scheduled to begin on April 17.

      . Maida later was sentenced, on November 21, 1972, to consecutive three year terms of imprisonment on each of counts 3 and 7 of the extortion indictment. He was fined a total of $5,000.

      . The government’s request and Judge Palmieri’s instructions to Lore and Maida were as follows:
      “Mk. Aronwald: Your Honor, I would ask your Honor just one thing, and that is to reiterate your previous instructions to the defendant Lore and also to the defendant Maida, that although they have now entered pleas of guilty, they are still to stay away from any witness or prospective witness in this case, most particularly Hurwitz and Kanof.
      The Couet : Yes, I instruct you both, Joseph Maida and Vincent Lore, to stay away from anybody connected with these cases.
      This case is going to go to trial on April 17, and any approaches you make, friendly or otherwise, will be construed to your prejudice. So just stay away from them like poison.
      You understand that, Joseph Maida?
      Defendant Maida: Yes, sir.
      The Couet: You understand that, Vincent Lore?
      Defendant Lore : Yes, sir.
      The Couet : All right.”

      . At the June 12 hearing, Judge Palmieri asked Lore’s counsel whether he had “any idea what [Lore’s] disposition is with respect to testifying at this trial as a witness for the defendants?” Counsel said, “I don’t know. I have not conferred with him.” Judge Palmieri then stated:
      “The Coubt: It would be better if he had nothing to do with it. I don’t want to deprive anybody of the right to call witnesses. It is a God-given right. The government could call him, just as they could. But I think from his standpoint it would be better if he had as little to do with the case as possible.”
      Lore’s counsel responded, “That would be true from his point of view.”
      This colloquy immediately followed a statement by government counsel reminding the court of Lore’s conduct, subsequent to the return of the first extortion indictment, of intimidating government witnesses : “With respect to the two witnesses in this case, the government witnesses, only because of Mr. Lore’s overt acts of intimidating, has the government been forced since that time to place both of those people and the respective members of their families in protective custody at tremendous cost to the government. If Mr. Lore had not approached either one of them, that would not have been necessary.” See note 4, stipra.

      . At the sentencing of Lore on June 28, government counsel, in urging the imposition of maximum consecutive sentences, informed the court:
      “ . . .1 tell your Honor that it is Mr. Lore and Mr. Lore predominantly that displayed acts of violence to these two victims. Mr. Lore on several occasions inflicted bodily injury and physical harm to these victims.
      Mr. Lore, and Mr. Lore only, inflicted fear in the heart of Mr. [Kanof’s] wife by going out to her home after this indictment had been returned and intimidating or placing fear in the heart of her daughter, who was in the house alone when her mother and father were out, by coming to the house to talk to her father, to talk to him about what? To talk to him about cooperating with Mr. Lore and his co-defendants in changing his testimony in this case.”

      . Counsel for both appellants have addressed numerous communications to us urging that we strike from the record an affidavit sworn to March 26, 1973 by Sclafani’s trial counsel, Jack Evseroff, Esq., confirming this statement to the trial judge. IVe decline to do so, for the reasons (1) that the affidavit in question was certified and transmitted to this Court in accordance with Fed.R.App.P. 10(e), including an order of Judge Pal-mieri entered April 6, 1973 directing that the affidavit be docketed and made part of the record in this Court; and (2) that we would reach the same conclusion, absent the Evseroff affidavit, since it does no more than confirm what the record shows anyway — that Lore was not called as a witness for the compelling reasons stated above.

      . In Mosca, we rejected appellants’ claims that they had been denied due process and the right to compulsory process resulting from the government’s failure upon request to make available at trial a potential witness whose whereabouts was known to the government but not to appellants.

      . We consider these remarks in conjunction with the judge’s similar remarks at the sentencing of Lore on June 28: “Your attorney told me that he hopes that you will stay as far away as possible from the unfinished oases, and I hope that will be true.”

      . In our view, appellants’ massive reliance upon Webb is misplaced. All else aside, unlike “the sole witness for the defense” in Webb, Lore was a co-defendant who had pled guilty to the very conspiracy for which appellants were on trial. And, unlike the “threatening and harassing” remarks of the trial judge in Webb in “coercing the only defense witness into refusing to testify”, our careful reading of Judge Palmieri’s remarks in the instant case in context leaves us with the firm conviction that they in no way threatened or harassed the witness, nor can they fairly be construed as having coerced the witness into refusing to testify.
      Although the Supreme Court decided Webb on December 4, 1972 — the day upon which Sclafani was sentenced in the instant case — the principle which is controlling here has long been recognized in this Circuit. See, e. g., United States v. Marzano, 149 F.2d 923, 926 (2 Cir. 1945) (L. Hand) : “It is true that a person who has pleaded guilty and has not yet been sentenced may testify; it is also true that such a witness always hopes that by testifying he will lessen his punishment ; but he is not told that his testimony must be satisfactory to the court to secure any favor; and it would be altogether intolerable, if he were.”
      We agree; and we hold that by no stretch can Judge Palmieri’s remarks be construed as having told Lore “that his testimony must be satisfactory to the court to secure any favor.”

      . We regard as little short of fanciful Ross’ assertion on appeal that, if Lore had been called as a trial witness, he would have testified that one Hymie Rabinowitz (who was dead at the time of trial), rather than Ross, had loaned the money to ICanof and Hurwitz. True, Lore had made a statement to this effect at the time of his change of plea on April 3. But co-defendant Maida had made a similar statement on the same occasion; indeed, Maida was even more specific in stating that he had received $50,000 from Rabinowitz, that lie delivered that sum to Kanof and Hurwitz, and that he and Lore were responsible for collecting the interest and repayments of principal from the borrowers.
      Significantly, Maida was not called as a defense witness at trial. And it is not claimed that he was deterred from testifying by any remarks of the trial judge.

      . Both appellants were represented at trial by counsel other than their counsel on appeal.


source: Caselaw Access Project

author: BRIGHT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Sylvester ATKINS, Appellant.
    No. 73-1365.
    United States Court of Appeals, Eighth Circuit.
    Nov. 9, 1973.

      James A. Bell and Allen I. Harris, St. Louis, Mo., for appellant.
    Donald J. Stohr, U. S. Atty., Jerry J. Murphy, Dist. Counsel, Drug Enforcement Admin., and Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for ap-pellee.
    Before HEANEY, BRIGHT, and ROSS, Circuit Judges.
   BRIGHT, Circuit Judge.

Sylvester Atkins, age 26, appeals from a two-count conviction of distributing a controlled substance (heroin) in violation of 21 U.S.C. § 841(a)(1). The district judge dealt severely with Atkins, sentencing him to serve consecutive prison terms of 12 years on each count, a total of 24 years, plus a special three-year parole term on each sentence — an aggregate parole term of six years. Atkins appeals the convictions and raises these four contentions:

(1) The trial court erred in refusing to dismiss the indictment for reasons of delay between the commission of the alleged offenses (August 2 and August 16, 1972) and the return of the indictment (February 20, 1973).

(2) The trial court erred in. refusing to permit a witness for the defendant to testify, notwithstanding that the witness had violated an order requiring sequestration of witnesses.

(3) The trial court committed plain error in not giving an alibi instruction.

(4) The trial court erred in defining “reasonable” doubt in terms of “substantial” doubt.

We have carefully reviewed the record and find no prejudicial error. We affirm.

The government introduced evidence that Atkins sold packets of narcotics containing a high content of heroin to an informant on two occasions in August. Law enforcement officials testified to observing these transactions from a distance through the use of binoculars.

Atkins himself testified and denied the sales of narcotics to the informer. At the times specified in the indictment, he claimed that he was playing baseball with a team representing the Pruitt-Igoe Housing Project in St. Louis. He also called one witness who testified that the informer, at a time several months after the alleged narcotics sales, asked the witness to introduce the informant to Atkins. The defendant sought to present similar testimony from another witness, but the trial court refused such testimony because the tendered witness had been in court during a portion of the trial in violation of the court’s order that all nonparty witnesses remain outside the courtroom except when called to testify.

We comment briefly upon appellant’s claims’.

I.

No error is shown on refusing to dismiss the indictment because of unreasonable delay in indicting appellant. Atkins claims his defense was impaired by the delay between the dates of the incidents here in question and his arrest since he was unable to recall his whereabouts on those days. This is not enough. A claim merely of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice for reversal based on denial of due process. United States v. Golden, 436 F.2d 941 (8th Cir.), cert, denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971). And the record here belies Atkins’ claim, since he testified positively that he played baseball évery Wednesday after-moon, including Wednesday, August 2, and Wednesday, August 16, 1972, the dates of the alleged offenses. One of defendant’s witnesses gave similar testimony about the baseball schedule on each Wednesday. The appellant’s claim of constitutional violation lacks any merit, since the Sixth Amendment does not apply in the preindictment situation, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and since he has not shown sufficient actual prejudice to sustain a Fifth Amendment claim of due process, see United States v. Emory, 468 F.2d 1017 (8th Cir. 1972); United States v. Golden, supra.

II.

Ordinarily the violation of a sequestration order by a witness does not call for exclusion of his testimony. The Supreme Court in Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), expressed the controlling principle as follows:

If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.

In special circumstances, the court may undoubtedly exclude a witness. See United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972). The circumstances underlying the violation are not clearly disclosed by the record in this case, but even if the circumstances here did not call for exclusion, we find no prejudicial error in the rejection of the testimony which was merely cumulative to other similar testimony introduced to impeach the informer-witness.

III.

We find no error in the court’s failure, sua sponte, to give an alibi instruction. The trial court need not give such an instruction in the absence of a request therefor. Goldsby v. United States, 160 U.S. 70, 77, 16 S.Ct. 216, 40 L.Ed. 343 (1895); Roper v. United States, 403 F.2d 796, 798 (5th Cir. 1968).

IV.

The trial court gave the following instruction on reasonable doubt:

The burden of proof, as you have been told, is upon the Government. The Defendant is presumed to be innocent until proven guilty. This presumption of innocence attends and protects the Defendant throughout the trial unless it has been met and overcome by evidence coming forward in the case which shows and establishes the guilt of the Defendant beyond a reasonable doubt.
The Court further charges you that a reasonable doubt is a doubt based on reason, and which is reasonable in view of all the evidence. And if, after an impartial comparison and consideration of all the evidence, you candidly can say that you are not satisfied of the Defendant’s guilt, you have a reasonable doubt; and if, after such impartial comparison and consideration of all the evidence, you truthfully can say that you have an abiding conviction of the Defendant’s guilt, you have no reasonable doubt.
Putting it another way, a reasonable doubt means a substantial doubt, and not the mere possibility of innocence. [Tr. 293-94.]

The objection made on this appeal is that “substantial” doubt is not the equivalent of “reasonable” doubt. We agree. Proof of guilt beyond a reasonable doubt would seem to require a greater evidentiary showing by the Government than proof of guilt beyond a substantial doubt. For this reason, we do not approve of the alternative statement that reasonable doubt means a substantial doubt. But here no objection was taken to the instruction as is required by F.R.Crim.P. 30, and we cannot say that the giving of this instruction in the context of this case constituted plain error under F.R.Crim.P. 52(b). See United States v. Culp, 472 F.2d 459 (8th Cir.), cert, denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973); United States v. Cole, 453 F.2d 902, 906 (8th Cir.), cert, denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); United States v. Dunmore, 446 F.2d 1214 (8th Cir.), cert, denied, 404 U.S. 1041, 92 S. Ct. 726, 30 L.Ed.2d 734 (1971).

Finding no prejudicial error in these proceedings, we affirm.

Affirmed.

      . It should be noted that the excluded testimony may not have been admissible as impeachment because it lacked proper foundation. Defense counsel did not give the informer a chance on cross-examination to explain or to deny the allegedly inconsistent statements — a prerequisite generally considered mandatory. E. g., United States v. Hayutin, 398 F.2d 944, 953 (2d Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 402, 21 L.Ed.2d 374 (1968), rehearing denied, 393 U.S. 1045, 89 S.Ct. 615, 21 L.Ed.2d 597 (1969), second rehearing denied, 394 U.S. 939, 89 S.Ct. 1178, 22 L.Ed.2d 475 (1969) ; McCormick’s Handbook of the Law of Evidence (2d ed. 1972) § 37.

      . In State v. Davis, 482 S.W.2d 486, 490 (Mo. 1972) (Seiler, X, concurring in result), Justice Seiler of the Missouri Supreme Court observed :
      “Reasonable” and “substantial” are not synonymous, as can be seen by referring to any of the standard dictionaries. The point was well put by counsel in argument recently where he pointed out that if one had to undergo a serious operation and were querying the doctor as to the prospects for a successful outcome, how differently the person would feel if the doctor told him there was only a reasonable chance of success as opposed to being told there was a substantial chance of success.
      Attempts to explain the term “reasonable doubt” do not usually result in making it clearer to the minds of the jury. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954) ; Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1880) ; United States v. Cole, 453 F. 2d 902, 906 (8th Cir.), cert, denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972).


author: PICKETT, Circuit Judge.

text:
    Eduardo ANGEL and George Lopez, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Earl L. BUTZ, United States Secretary of Agriculture, Defendant-Appellee.
    No. 72-1727.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 22, 1973.
    Decided Nov. 13, 1973.
    Rehearing Denied Dec. 7, 1973.

      James Phelan, Denver, Colo., and Jonathon B. Chase, Boulder, Colo., for plaintiffs-appellants.
    Anthony J. Steinmeyer, Dept. of Justice, Washington, D. C. (Harlington Wood, Jr., Asst. Atty. Gen., James L. Treece, U. S. Atty., and Walter H. Fleischer, Dept. of Justice, Washington, D. C., with him on the brief), for defendant-appellee.
    Before PICKETT, McWILLIAMS and BARRETT, Circuit Judges.
   PICKETT, Circuit Judge.

As required by 7 U.S.C. § 1131(c) (1) (1970) of the Sugar Act of 1948, as amended, the Secretary of Agriculture in 1971 and 1972, as in previous years, determined the wages required to be paid to persons engaged in the growing of sugar beets on farms in Colorado. Representatives of the workers appeared at public hearings prior to the adoption of wage schedules and made recommendations to the Secretary concerning wage schedules and other matters not directly related to wages. Except for some increase in the wage structure, substantially all of the workers’ demands were rejected. Following the promulgation of the rules the Secretary immediately published them together with a statement of the bases and. considerations upon which they were determined, as required by 7 U.S.C. § 1153 (1970) .

This class action was brought by representatives^ of the workers seeking a judgment declaring the regulations to be invalid because rejection of the “proposed regulations was arbitrary, capricious, and constituted an abuse of discretion.” The trial court concluded that there was no genuine issue of material fact, granted the Secretary’s motion for summary judgment, and dismissed the action. The workers first contend that the record before the District Court was insufficient to support the Secretary’s references that are a part of the “Statement of Bases and Considerations” which is included in the 1972 wage rate determination.

The purpose of the Sugar Act of 1948 was to protect the welfare of consumers of sugar in the United States and those engaged in the .production of sugar. To accomplish this purpose, quotas for the production of sugar beets and sugarcane were fixed, the importation of sugar was regulated in a manner resulting in the control of sugar prices and provision was made for the payment of subsidies to the growers of sugar beets and cane. One of the statutory conditions for the receipt of the subsidies was a requirement that producers pay to field workers the wages determined by the Secretary to be fair and reasonable. The issues in this case arise from the failure of the Secretary, in making his determination of fair and reasonable wages, to accept the demands made by representatives of the workers. The statute anticipates that the Secretary will, prior to a determination of the wages to be paid, make an adequate investigation and hold public hearings to afford an opportunity for interested parties, including sugar beet workers and .producers, to be heard. The hearing, however, is not an adversary proceeding and is only a portion of the investigation to be made by the Secretary. The Secretary determines what are fair and reasonable wages from the entire investigation. This determination is nonadjudicatory and in the nature of legislative action. The statute does not require that the wage determination be made only on a formal record after a public hearing. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L.Ed.2d 453 (1972); Mobil Oil Corp. v. F. P. C., 469 F.2d 130, 139 (D.C. Cir. 1972), cert, denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 159 (1973); California Citizens Band Association v. United States, 375 F.2d 43 (9th Cir.), cert, denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (1967); Flying Tiger Line, Inc. v. Boyd, 244 F.Supp. 889 (D.D.C.1965). In exercising this legislative function the Secretary should consider evidence formally presented at hearings, but may rely upon his own expertise and other relevant material available to him. Pacific Coast European Conference v. United States, 350 F.2d 197 (9th Cir.), cert, denied, 382 U.S. 958, 86 S.Ct. 433, 15 L.Ed.2d 362 (1965); Flying Tiger Line, Inc. v. Boyd, 244 F. Supp. 889 (D.D.C.1965).

To sustain their position that the record is inadequate the workers rely primarily upon Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). As stated in that decision, the action “was plainly not an exercise of a rulemaking function.” 401 U.S. at 414, 91 S.Ct. at 823. It has no application here. The facts in the Volpe case were measured against statutory standards authorizing the expenditure of public funds on highways to be constructed through public parks only if a “feasible and prudent” alternate route did not exist. The local citizens claimed that in authorizing expenditures for a highway through a park the Secretary acted in violation of “clear statutory provisions.” The court stated that “[i]f the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.” 401 U.S. at 413, 91 S.Ct. at 822. No contention is made in the instant case that the rules adopted were in conflict with any federal statute. The attack is upon the regulations themselves, not upon their administration.

In the exercise of the rulemaking power the test of the validity of the Secretary’s action is whether his action was arbitrary, capricious, or an abuse of discretion. The burden was upon the workers to establish this fact. New York Foreign Freight Forwarders and Brokers Association, Inc. v. Federal Maritime Commission, 337 F.2d 289 (2d Cir. 1964), cert, denied, 380 U.S. 910, 85 S.Ct. 893-, 13 L.Ed.2d 797 (1965); Regular Common Carrier Conference v. United States, 307 F.Supp. 941 (D.D.C.1969); 2 K. Davis Administrative Law Treatise § 14.-14 (1958). The determination of the regulations was made by an appropriate official of the Department of Agriculture. In a discovery deposition he gave testimony concerning the investigation and the materials available to him in making his determination. He stated that consideration was given to all recommendations made, including those of the sugar beet growers and the workers. This material was also reviewed in the “Statement of the Bases and Considerations” filed with the adopted regulations including reasons for the rejection of the workers’ proposals. The purpose of the public hearing was to afford an opportunity for interested parties, including the workers and sugar beet growers, to have their say. The Secretary was not required to accept the recommendations of either. His refusal to accept such recommendations or his limited explanation of why any of them were rejected is no indication that he acted arbitrarily. The record was adequate for the disposition of the issues. See American Trucking Associations, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953); Automotive Parts and Accessories Association, Inc. v. Boyd, 132 U.S. App.D.C. 200, 407 F.2d 330 (1968).

Throughout the proceedings the Secretary has maintained that his statutory authority was limited to fixing wage rates and that he was without jurisdiction to regulate other working conditions as demanded by the workers. • The District Court held that the broad authority of the statute authorized the Secretary to make regulations pertaining to these demands. When the 1972 regulations were promulgated the Secretary made it clear that the workers’ proposals were rejected not only because it was believed that they were not authorized by the Sugar Act, but also that “they were deemed to be impractical and undesirable. . . . ” It is now argued that the “lack of authority” position of the Secretary was erroneous and if it had any influence on the final determination of the wage rates they cannot stand. In support of this view reference is made to D. C. Federation of Civic Associations v. Volpe, 459 F.2d 1231 (D.C.Cir.), cert, denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L. Ed.2d 489 (1972), as being “remarkably similar to the one- at bar.” The District of Columbia case is not similar to this case, but is more like Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), which was concerned with the question of whether the Secretary had complied with statutory provisions in the allocation of funds for the construction of a highway on existing park lands. Neither of the cases dealt with the rulemaking power of the Secretary. The difference in these eases and the instant case is illustrated by the District of Columbia decision, which said:

“If, on the other hand, the Secretary’s action had been purely legislative, we might have agreed with the District Court that his decision could stand in spite of a finding that he had considered extraneous pressures. Beginning with Fletcher v. Peck, [10 U.S. 87, 6 Crunch 87, 3 L.Ed. 162 (1810)], the Supreme Court has maintained that a statute cannot be invalidated merely because the legislature’s action was motivated by impermissible considerations (except, perhaps, in special circumstances not applicable here.) . . .” 459 F.2d at 1247.

In the promulgation of the wage rate rules under the Sugar Act the Secretary was exercising his legislative powers and if he considered an alleged improper reason along with one that was proper, that action in itself does not establish that the result was arbitrary or capricious. Cf. Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968). The workers’ case has been very forcefully and thoroughly presented; however; we think the arguments have strayed from the narrow question of whether the Secretary, in the exercise of his rulemaking powers, acted arbitrarily or capriciously-

Affirmed.

      . The pertinent part of § 1131(c)(1) is as follows:
      “That all persons employed on the farm in the production, cultivation, or harvesting of sugar beets or sugarcane with respect to which an application for payment is made shall have been paid in full for all such work, and shall have been paid wages therefor at rates not less than those that may be determined by the Secretary to be fair and reasonable after investigation and due notice and opportunity for public hearing; and in making such determinations the Secretary shall take into consideration the standards therefor formerly established by him under the Agricultural Adjustment Act, as amended, and the differences in conditions among various producing areas: . . . ”

      . The additional proposals included subjects such as a written contract for all labor to be performed; an arbitration panel to consider wage disputes; penalty for employment of aliens unlawfully in the United States; housing without cost to workers; and mileage for interstate transportation of workers.

      . The Administrative Procedure Act, 5 U.S.C. § 553 (c), requires “a concise general statement of their basis and purpose” to be incorporated in rules adopted by an agency. This section also provides that “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title shall apply instead of this subsection.”

      . We do not decide the correctness of this decision.


author: ELY, Circuit Judge:

text:
    D. Arnold SANDERSON, Father and Administrator of the Estate of Steven D. Sanderson, Deceased for and on behalf of himself and Marjorie Sanderson, Mother of said Decedent, Appellant, v. Cecil C. CHAPMAN and Sarah G. Chapman, Appellees.
    No. 71-2193.
    United States Court of Appeals, Ninth Circuit.
    Oct. 31, 1973.

      Kenneth Biaett (argued), of Biaett & Bahde, Phoenix, Ariz., for appellant.
    Warren E. Platt (argued), Roger W. Perry, of Snell & Wilmer, Phoenix, Ariz., for appellees.
    Before ELY and HUFSTEDLER, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Los Angeles, California, sitting by designation.

   OPINION

ELY, Circuit Judge:

The appellant, plaintiff below, instituted suit in an Arizona state court for the alleged wrongful death of his son. He sued in his capacity as administrator of the estate of his son, as well as in his individual capacity on behalf of himself and his wife, the mother of the deceased. The appellees, defendants below, removed the cause to the District Court, where jurisdiction existed by reason of the diversity of citizenship between the parties. Appellant’s intestate was a twenty-one year old student at the University of Arizona. He died as the result of a collision between a Volkswagen automobile in which he was riding as a passenger and a Ford station wagon occupied by the husband and wife appel-lees and, at the time of the accident, being-driven by the husband. The collision occurred near Quartzsite, Arizona, on U.S. Highway 60, a roadway generally extending in an east-west direction. The Volkswagen, owned and operated by one Jordan, was traveling west, and the Ford was traveling in the opposite direction, i. e., to the east. The collision between the automobiles was virtually head-on, and the asphalt roadway at the point was forty-three feet in width, with a broken white line in the center. There were four feet wide shoulders on each side of the highway, but, according to one of the investigating officers, inadequate for automobile travel, except at low speeds. Two of the occupants of the Volkswagen were apparently killed instantly, and the third, unconscious from the time of the accident, had died by the time he had been transported to a hospital.

It is undisputed that the vehicles collided on the north side of the road, the westbound lane properly occupied by the vehicle in which the decedent was riding. The defendant-appellees conceded this, but the defendant driver testified that the Volkswagen had veered to the eastbound lane, his lane, and, acting in the emergent circumstances, he turned into the eastbound lane in a last second, unsuccessful effort to avert the impact. Further, his testimony was to the effect that as he undertook to avoid the accident by veering to the left, the driver of the Volkswagen veered right, back into the westbound lane. The following testimony of the appellee husband summarizes the thrust of his and his wife’s defense, i. e., that the driver of the Volkswagen was negligent and that his negligence was the sole proximate cause of the accident:

“Q. Getting back to the day of the accident, as you were driving east on Highway 10 and starting with the time when you first observed a Volkswagen on the highway approaching you, I want you to tell the jury, in your own words, what happened.

A. When we first saw the Volkswagen, it was a considerable distance ahead and he was on the left-hand side of the road, of my side. He gradually wandered or drifted back to his side.

Then, in between time, he drifted back to the other side. When he came back the second time, he kept going steadily to the right or to his left, to my right. And that’s when I made up my mind I had to go to the left.

At the last minute, he turned over on my side.

Q. Mr. Chapman, why did you go to the left?

A. Well, it was really the only way out that I could see.

Q. In your judgment, was that what you thought might avoid the collision ?

A. Yes, sir.”

The above testimony was, to a considerable degree, corroborated by Officer Green, a patrolman of the Arizona Department of Public Safety, commonly designated as the Arizona Highway Patrol. Officer Green investigated the accident at the scene and signed the official accident investigation report. In that report appears the notation “The driver of vehicle No. 2 (the Ford) stated vehicle No. 1 (the Volkswagen) pulled into his lane and he was unable to avoid the collision.” In Officer Green’s testimony, we find the following:

“Q. So that Mr. Chapman, at the scene and just shortly after the accident, told you that he was unable to avoid the collision because the vehicle had pulled into his lane?

A. Yes, sir. He stated he could not understand why the car was in his lane.”

After hearing all of the testimony and receiving the court’s instructions, the jury returned a verdict in favor of the defendant-appellees. Judgment was entered in accordance with the verdict, the court denied the plaintiff-appellant’s motion for new trial, and this appeal followed. We affirm.

The appellant argues, inter alia, that the verdict was contrary to the “great weight of evidence”. This contention warrants no extended discussion. The existence of negligence, vel non, on the part of the driver of the Ford was a question of fact. It is apparent that the jury, which was the sole judge of the credibility of the witness, attributed credibility to the testimony of the appellee driver. The issues of negligence and proximate cause principally involve factual determinations, and we, like the district judge, are in no position to overturn the critical determinations of the jury in this case.

The principal contentions of the appellant relate to alleged errors concerning the instructions given by the court to the jury. First, the appellant argues that an instruction on the doctrine of res ipsa, loquitur should have been given, to be applied in favor of the appellant. We do not agree. In the first place, one of the essential elements that is prerequisite to the application of the doctrine is that the instrumentality causing an injury be in the exclusive management or control of the defendant. Capps v. American Airlines, 81 Ariz. 232, 303 P.2d 717 (1956). Here, there were two instrumentalities, the two automobiles producing the accident, and only one was in the exclusive control and management of the defendant-appellees, or one of them.

Second, the Arizona courts have held that when a plaintiff in a negligence suit introduces specific evidence of the negligence of the defendant, as was done here, he need not, and cannot, invoke the doctrine of res ipsa loquitur. Throop v. F. E. Young & Co., 94 Ariz. 146, 382 P.2d 560 (1963).

Finally, even if we are mistaken in our interpretation of the applicable Arizona law in the respect under discussion, we conclude that the failure to give the instruction was, in the circumstances of this case, harmless. The court instructed the jury that it could presume from the fact that the Ford was on its “wrong” side of the road that the Ford’s driver was negligent and that such presumption, having the force of law, should be applied unless the jury, from other evidence, was convinced to the contrary. In our view, this instruction was far more favorable to the appellant than would have been an instruction embodying the principles of res ipsa loquitur, raising a mere inference rather than the stronger presumption.

Next, the appellant contends that the jury should have been instructed, in effect, that any negligence on the part of the driver of the vehicle could not be imputed to the decedent. While such an instruction would have been proper, the court’s failure to present it was, in this case, not prejudicial. The appellees’ attorney never attempted, by insinuation or otherwise, to put forth the proposition that any negligence on the part of the Volkswagen driver was imputable to the decedent. In fact, the defense attorney stated explicitly: “First, the issue of contributory negligence is not in this case. We have offered no instructions on the subject, there has been no mention of any negligence or any claimed negligence on the part of plaintiff’s decedent.” Of more importance is the fact that the court instructed the jury: “It is no defense for a defendant, whose negligence has been one of the proximate causes of an injury, to assert that some other person not joined as a defendant in this action also participated in causing the injury. This would be true even if it should appear to you that the negligence of that other person was greater in either its wrongful nature or its effect.” And further: “However, if you find that defendant was negligent and that such negligence was a proximate cause of the plaintiff’s injuries, then you must find for the plaintiff on the issue of liability.” (Emphasis added.) In the light of the foregoing, there was no reasonable possibility that the jury could have been misled into the belief that the deceased could be found contributively negligent by reason of some negligent omission or commission of the driver of the automobile in which the deceased was a passenger. It is elementary that in determining whether there was prejudicial error in the giving or failure to give specific instructions to the jury, the instructions must be considered as a whole. We have reviewed the instructions in this case in the light of that principle and, having done so, concluded that the court’s instructions were eminently fair and that moreover, the trial was conducted with competence on the part of the attorneys for all parties and with admirable orderliness and impartiality on the part of the trial judge.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Virgil R. JOBE, M. D., Defendant-Appellant.
    No. 73-1298.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 10 1973.
    Decided Nov. 7, 1973.
    Rehearing Denied Nov. 27, 1973.
    Floy E. Dawson, Asst. U. S. Atty., Oklahoma City, Okl. (William R. Bur-kett, U. S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-ap-pellee.
    Leslie L. Conner and James M. Little, Oklahoma City, Okl. (Leslie L. Conner, Jr., and O. A. Cargill, Jr., Oklahoma City, Okl., with them on the brief), for defendant-appellant.
    Before PICKETT, BREITENSTEIN and BARRETT, Circuit Judges.
   PICKETT, Circuit Judge.

Appellant Jobe, a duly licensed and practicing medical doctor in Oklahoma City, Oklahoma, appeals from a conviction on a nineteen count indictment charging him with distributing and causing to be distributed controlled substances (narcotics) in violation of 21 U. S.C. § 841(a)(1) (1970). The charges arose out of nineteen separate prescriptions issued to a number of undercover police officers for drugs admitted to be “controlled substances” within the meaning of the statute. Dr. Jobe contends (1) that the statute under which he is charged is vague, indefinite, unclear, and fails to define the acts alleged in the indictment to be a crime; (2) that the court erred, because of local prior adverse publicity, in not granting a change of venue; (3) that the law officers in their zeal to obtain evidence of narcotics violations were guilty of entrapment; and (4) that the method for selection of jurors for the trial of criminal cases filed in Oklahoma City, Oklahoma, denies a defendant a constitutional jury.

Dr. Jobe, at the time of. his arrest, was’ a long-time general practitioner in Oklahoma City, Oklahoma. He testified that in recent years he had more or less confined his practice to office calls. A large percentage of his patients were those having weight problems for which, in some instances, he prescribed controlled substances. The prescriptions that were the basis of the indictment were given to police officers who came to the doctor’s office and requested prescriptions for various kinds of narcotics. Using fictitious names, they appeared out of uniform and were generally dressed to disguise their real identity. They were able to obtain the prescriptions within a few minutes after an interview and without any actual physical examination. The doctor admitted writing the prescriptions and testified that they were issued in good faith and in the honest belief that they were given to persons who were in need of the drugs.

The gist of the attack upon the applicable provisions of the Act is that the general terms of the statute do not make it a crime for one registered under the Act to dispense a controlled substance through a prescription. The statute is not a model of clarity in this respect, but we decided this issue in a recent decision, United States v. Bartee, 479 F.2d 484 (10th Cir. 1973), where it was said that it is clear and inescapable “that when a medical practitioner issues a prescription which is not for a legitimate medical purpose and is not in the usual course of his professional practice, then he does violate the statute.” 479 F.2d at 488. The issue of whether the prescriptions were given in the course of professional practice and for a legitimate purpose was settled by the jury verdict.

The record discloses that prior to trial there was considerable interest in the case and it was referred to quite extensively by all the news media. The coverage did not appear to be greater than usual in a case of this kind, but there was reference to some other criminal cases concerning the doctor. The trial court denied a motion for change of venue subject to a reconsideration after the voir dire examination of prospective trial jurors. At the time of trial a jury was readily selected that was acceptable to the parties. The defendant did not exhaust all of the peremptory challenges to which he was entitled. The court denied the renewed motion for change of venue. Rule 21 Fed.R.Crim.P. provides that the trial of a criminal case shall be transferred to another district “if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.” The ultimate question confronting a trial judge in situations such as this is whether it is possible to select a fair and impartial jury from a jury array selected from the vicinity where the publicity occurred. United States v. Daddano, 432 F.2d 1119 (7th Cir. 1970), cert, denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971); Jones v. Gasch, 131 U.S.App.D. C. 254, 404 F.2d 1231 (1967), cert, denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L. Ed.2d 286 (1968). The granting of a motion for change of venue under Rule 21 is specifically within the discretion of the trial judge. United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973); Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967); Dennis v. United States, 302 F.2d 5 (10th Cir. 1962). Little if any community prejudice against the doctor was encountered in the selection of the jury. We find no abuse of discretion.

It is next urged that the use of aliases and other deception by the police officers was an unlawful conspiracy. The essence of this argument is that the conduct constituted entrapment. It has often been said that in enforcing laws pertaining to vice, narcotics and similar violations, officers may employ appropriate artifice and deception to determine illicit activities. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L. Ed.2d 312 (1966); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L. Ed. 413 (1932). When a person is shown to be ready and willing to violate the law, the providing of an opportunity therefor by undercover agents or police officers is not .entrapment. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); United States v. Crawford, 444 F.2d 1404 (10th Cir.), cert, denied, 404 U.S. 855, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Garcia v. United States, 373 F.2d 806 (10th Cir. 1967); Maestas v. United States, 341 F.2d 493 (10th Cir. 1965).

Finally, it is urged that the conviction cannot be sustained because the jury panel was selected from a petit jury array chosen from only one division and not from the entire Western District of Oklahoma. No objection was made prior to trial, and if there was any error in the jury selection, it was waived. Fed.R.Crim.P. 12(b) (2); Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L. Ed.2d 357 (1963); Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L. Ed. 187 (1948). It is also argued that there was error in the cross examination of Jobe with reference to former convictions. No objection was made to the questions and they were not such as to constitute plain error or affect substantial rights of the accused. Tapia v. Rodriguez, 446 F.2d 410 (10th Cir. 1971).

Affirmed.

      . The doctor testified that on some days he would see as many as 100 to 125 persons in his office.


author: ELY, Circuit Judge: JAMES M. CARTER, Circuit Judge

text:
    UNITED STATES of America, Appellant, v. Timothy Patrick HOCTOR, Appellee.
    No. 71-2773.
    United States Court of Appeals, Ninth Circuit.
    March 1, 1973.
    On Rehearing Nov. 6, 1973.
    Robert S. Linnell, Asst. U. S. Atty. (argued), Dean C. Smith, U. S. Atty., Yakima, Wash., for appellant.
    Ronald F. Whitaker (argued), of Walters & Whitaker, Yakima, Wash., for ap-pellee.

      Before ELY and CARTER, Circuit Judges, and FERGUSON, District Judge

       Honorable Warren J. Ferguson, United States District Judge, Los Angeles, California, sitting by designation.

   ELY, Circuit Judge:

The Govern3nent appeals fro3n the District Court’s order dismissing part of an indictment against Hoctor. Finding no error in the District Court’s ruling, we affirm.

Hoctor was indicted, in the count relevant to this appeal, for an alleged violation of 18 U.S.C. § 842(i) (transporting or receiving explosives in interstate or foreign commerce after having been convicted of a felony.) Before trial, Hoctor filed a motion to dismiss. The basis of the motion was Hoctor’s contention that he had not been convicted of a felony within the meaning of § 842(i). He admitted having pleaded guilty to a felony, but he argued that the subsequent ex-pungement of his conviction, pursuant to Washington law, Wash.Rev.Code § 9.95.-240 (1957), removed him from the class of persons subject to § 842(i). His conviction was expunged in April, 1969, more than two years prior to the alleged violation of § 842(i).

The District Court held that Hoctor could not be classed as a felon at the time of his alleged offense and was not, therefore, amenable to prosecution under § 842(i). We agree with the District Court that the expungement procedure, as interpreted in Washington, effectively insulated Hoctor from prosecution.

The expungement statute provides:

“Every defendant who has fulfilled the conditions of his probation . may ... be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty . . . the court may in its discretion set aside the verdict of guilty; . . . the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.”

According to the Washington Supreme Court, .

“This statute is a legislative expression of public policy in the field of criminal law and rehabilitation. It undertakes in unambiguous terms, to restore a deserving offender to his preconviction status as a full-fledged citizen.” (Emphasis supplied.)

Matsen v. Kaiser, 74 Wash.2d 231, 237, 443 P.2d 843, 846-847 (1968) (concurring opinion). See also Tembruell v. Seattle, 64 Wash.2d 503, 392 P.2d 453 (1964). Further, the Attorney General of Washington, in a published opinion, has also written that the provisions of Wash.Rev.Code § 9.41.040, prohibiting certain convicted felons from owning or carrying pistols, do not apply to a person who has obtained a dismissal of criminal proceedings under Washington’s 'expungement statute. 1969 Op. Att’y Gen. 5. Thus, Hoctor’s conviction was absolutely erased from his record. He was entitled to the same rights, and held the same status, as any citizen.

The Government contends that this state determination could not affect the scope of § 842(i), that the expungement was ineffective in eliminating Hoctor’s liability under federal statutes. In making that argument, however, it overlooks 18 U.S.C. § 848. That section provides :

“No provision of this chapter [including § 842(i)] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be, reconciled or consistently stand together.”

Both the Washington law and § 842(i) deal with the same subject matter. The only difference between them is that the federal law focuses specifically on the control of explosive materials while the state statute deals in the most general terms with the rights and disabilities of persons having criminal records. Nothing in either § 842 or its companion sections sets forth the standards under which it is to be determined when an individual has been convicted of a crime for the purposes of this chapter. Section 9.95.240, Wash.Rev.Code, provides at least a portion of the necessary definition by removing a class of people from the restrictions seemingly imposed by the federal law. The state law predated § 842(i); if Congress had intended to override the effect of that state law in this area, it could have done so. The language it employed in § 842 does not, however, indicate such an intent. In light of § 848, we will not imply that it so intended.

Affirmed.

On Petition For Rehearing

A majority of the panel as originally constituted in the subject case has voted to deny the Petition for Rehearing and to reject the suggestion for a rehearing en banc, Judge Carter dissenting.

The full court having been advised of the suggestion for en banc rehearing and of the panel vote, and a judge in active service having requested that a vote be taken on the appellant’s suggestion for en banc rehearing, such a vote has been taken. Rule 35(b) Fed.R.App.P. The thirteen judges in active service have voted, by a majority of nine to four, that the suggestion be rejected.

Accordingly, the Petition for Rehearing is denied, and the appellant’s suggestion for en banc rehearing is rejected.

JAMES M. CARTER, Circuit Judge

(dissenting on Petition for Rehearing)'.

I must confess I was over-persuaded by my brother Ely and joined in the opinion. Now I am convinced that we were in error.

The issue presented in this case is whether a state legislature may define the terms of a federal statute. The federal statute in question is 18 U.S.C. § 842(i), which makes it a crime for a person who has previously been convicted of a felony to receive explosives in interstate commerce. In construing this statute, this court must decide whether a prior conviction ceases to be a prior conviction when a state law “expunges” it.

The defendant, Timothy Patrick Hoctor, acquired his prior conviction in 1966 for second degree burglary under the laws of the State of Washington. This was a felony, punishable by imprisonment for not more than 15 years. The state court sentenced Hoctor to a term of probation. When the term had expired in 1969, the state court discharged the conviction pursuant to Washington’s so-called “expungement statute,” Revised Code of Washington, 9.95.240. Soon aft-erwards, Hoctor was charged under the federal statute, 18 U.S.C. § 842(i), with receiving explosives in interstate commerce after having been previously convicted of a felony. The district court held that Hoctor, because of the expungement in the state court, had not been previously convicted of a felony within the meaning of § 842(i). The panel unanimously affirmed in what I now believe to be a mistaken interpretation of federal law.

My analysis has four parts: first, a general interpretation of 18 U.S.C. § 842 (i); second, a consideration of 18 U.S.C. § 845; third, a consideration of 18 U.S. C. § 848; and fourth, a consideration of relevant cases from the Ninth Circuit.

I

18 U.S.C. § 842 (i)

The twin guides in construing a statute are its words and its ascertainable purpose. If the plain meaning of the words in 18 U.S.C. § 842(i) controlled the case, the outcome would be certain. The statute provides, “It shall be unlawful for any person . . . who has been convicted in any court of . a crime punishable by imprisonment for a term exceeding one year ... to receive any explosive ... in interstate or foreign commerce.” Hoctor has been previously convicted — that is cold fact. His argument, therefore, must necessarily be that behind the plain words lies a silent proviso that convictions “expunged” by state law do not count. Whether such a proviso is indeed implied must be resolved by reference to Congress’ purpose in enacting § 842(i).

Congress’ apparent purpose was to thwart a volatile mixture — the combination of an explosive material with a person having criminal tendencies. In 18 U.S.C. § 841(e), (d), (e), and (f) Congress defined “explosive materials,” a relatively simple task. Nobody would contend that a' state could expunge or alter this definition.

Defining a person having criminal tendencies was tougher. In 18 U.S.C. § 842(i) Congress relied on the expedient and reasonable assumption that persons with criminal tendencies are those who have committed crimes, as evidenced by previous convictions. The shortcomings of this definition are obvious, but it is workable, and perhaps defies improvement. In any event, it reflects a congressional determination as to which persons should be barred from handling explosives — those who have been convicted of felonies. The Washington expungement law, an expression of the public policy of the state, must not be allowed to undercut a congressional determination.

The expungement should be allowed to affect the terms of 18 U.S.C. § 842(i) only if the state’s policy coincides with the federal purpose. I think it does not; my view was well-articulated by the Supreme Court when it said in Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L.Ed. 640 (1942): “At times it has been inferred from the nature of the problem with which Congress was dealing that the application of a federal statute should be dependent on state law. . . . But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation is nationwide (United States v. Pelzer, 312 U.S. 399, 402 [61 S.Ct. 659, 660, 85 L.Ed. 913]) and at times on the fact that the federal program would be impaired if state law were to control. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503 [34 S.Ct. 635, 58 L.Ed. 1062].”

18 U.S.C. § 842(i) necessarily depends on state law to the extent that prior convictions may be rendered by state courts; that was clearly intended by Congress. There is, however, no indication, plain or otherwise, that Congress intended to allow state law to say a conviction is not a conviction for the purposes of § 842(i).

II

18 U.S.C. § 845

If 18 U.S.C. § 842(i) stood alone, the interpretation given it in the opinion might bear more credence. But § 842 (i) does not stand alone; it is merely one provision in a larger statutory scheme by which Congress intends to regulate the interstate commerce in explosives. A key provision in the scheme is 18 U.S.C. § 845(b), which reads: “A person who had been indicted for or convicted of a crime punishable by imprisonment for a term exceeding one year may make application to the Secretary for relief from the disabilities imposed by this chapter . . . and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the indictment or conviction, and the applicant’s record and' reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety . . . .”

Thus § 845(b) gives the Secretary power to do exactly what the state ex-pungement purports to do — determine that a particular person may be trusted with explosives despite a prior conviction. Since Congress intended this determination to be made to the satisfaction of the Secretary, whose discretion is guided by federal policy, the scheme intended by Congress is disrupted if a state, guided by state policies, may make the determination to nullify a conviction for purposes of § 842(i). If the state’s determination should differ from the Secretary’s, we would face a direct conflict between state and federal authority. Congress surely intended no such conflict. § 845(b) suggests the congressional desire that, for purposes of § 842 (i), only federal authority can “expunge” a conviction.

Ill

18 U.S.C. § 848

The opinion says that 18 U.S.C. § 848 indicates a congressional intent to allow states to “expunge” convictions for purposes of § 842(i). I am unable to attach such meaning to § 848.

§ 848 provides that “No provision of this chapter shall be construed as indicating an intent on the part of the Con- • gress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State . . . .” [Emphasis added].

For two reasons it is evident that § 848 does not operate to permit states to expunge convictions for purposes of § 842(i).

First, as stated in the preceding section, I see a direct conflict between the state statute and § 845(b): by giving effect to the state statute in this case we would deprive the Secretary of the final authority vested in him by Congress. This is not to suggest that the state law is entirely void for violating the Supremacy Clause, for in many other situations a state expungement will have no impact on federal policies or federal law; but, to the extent it would undercut § 845(b), the state law cannot be given effect.

Secondly, the state law does not concern the same subject matter as § 842 (i). House Report No. 91-1549 indicates the subject matter to which Congress refers: “This section [§ 848] sets forth the intent of Congress that this chapter shall not be construed to operate to the exclusion of State statutes covering explosive materials . . . .” U.S.Code Cong. & Admin.News, 1970, p. 4048. [emphasis added]. The Washington expungement statute does not cover explosive materials in any way; hence § 848 actually has no relevance to this case.

IV

The Ninth Circuit Cases

The Ninth Circuit has numerous cases holding that state expungement statutes do not affect the scope of certain federal laws on deportation. E. g., Kelly v. I.N.S. (9 Cir. 1965) 349 F.2d 473, cert, denied, 382 U.S. 932, 86 S.Ct. 326, 15 L.Ed.2d 344 (1965); Garcia-Gonzales v. I.N.S. (9 Cir. 1965), 344 F.2d 804, cert, denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed. 2d 81 (1965).

The opinion in this case brushes aside these precedents in a footnote, saying they are not applicable. Two distinctions are drawn, neither of which is persuasive that Kelly and Garcia do not apply to Hoctor.

First, the opinion points out that the deportation statute, 8 U.S.C. § 1251, has different language from 18 U.S.C. § 842 (i). The deportation provision refers to persons who have been convicted “at any time,” while 18 U.S.C. § 842(i) refers simply to persons who have been convicted. The absence of “at any time” in § 842(i) fails to indicate Congress’ intent to let states say a conviction is not a conviction.

Secondly, the opinion states that Congress has plenary power over deportation law, while Congress’ power to regulate explosives is of course limited to the sphere of interstate commerce. Although this is so, the fact that Congress’ power to regulate explosives is less than plenary does not mean that a valid enactment, within the limited scope of Congress’ power, is subject to alteration by the states. Federal law, expressing federal policy, is supreme, whether or not it concerns a subject over which Congress has plenary power.

The decision in Garcia controls this case. As said there, “It is sheer fiction to say that the conviction is ‘wiped out’ or ‘expunged.’ . ... ‘Congress intended to do its own defining [of “conviction”] rather than leave the matter to variable state statutes.’ ” Garcia, at pp. 807-808.

The petition for rehearing should be granted and an .opinion filed, reversing the judgment below.

      . There was a three-count indictment. The District Court dismissed counts One and Three on the same grounds and the Government appealed. Thereafter, the Supreme Court decided United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed. 2d 488 (1971). On the Government’s motion, count One, which dealt with Hoctor’s alleged possession of a firearm in violation of 18 U.S.C. App. § 1202(a) was dismissed by this court, under the Bass decision. i

      . In support of its position, the Government cited several cases previously decided by this court dealing with the effect of expungement statutes on deportation orders. E. g., Kelly v. I. N. S., 349 F.2d 473 (9th Cir. 1965), cert, denied 382 U.S. 932, 86 S.Ct. 326, 15 L.Ed.2d 344 (1965) ; Garcia-Gonzalez v. I. N. S., 344 F.2d 804 (9th Cir. 1965), cert, denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965). Those ^decisions are not here applicable. Congress has plenary power over the treatment of aliens and, from the specific language of the peculiar statute involved in those cases, our court held that Congress intended the sanction [i. e., deportation] to follow the mere fact of conviction, without regard to whether the alien subsequently fulfilled his probation terms without further incident. We cannot assume here that the Congress intended such a broad application of § 842 (i). Moreover, we are here dealing with a criminal prosecution, and once Hoctor had been told by Washington that he had suffered no conviction, he could not have had the necessary advance notice that his act constituted a federal offense.