author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Stewart FOSS et al., Defendants-Appellants.
    No. 74-1083.
    United States Court of Appeals, First Circuit.
    Argued May 9, 1974.
    Decided July 31, 1974.

      Harvey A. Silverglate and Thomas G. Shapiro, Boston, Mass., with whom Sil-verglate, Shapiro & Gertner, Boston, Mass., was on brief, for appellants.
    Lawrence P. Cohen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

James W. Coveney, Jr. and Stewart Foss pleaded guilty to charges stemming from the illegal distribution of cocaine. 21 U.S.C. § 841. They contend on appeal that the district court abused its discretion by sentencing each of them to three years’ imprisonment and denying their subsequent motion for reduction of sentence. Their principal complaint is that the court failed to “individualize” their sentences imposing imprisonment only because of a belief that “[h]ard narcotics demand hard sentences.”

The offenses arise from a single transaction. Coveney, at the insistence of one Russo, persuaded Foss first to supply a small cocaine sample and then to sell for $1200 26 grams of cocaine to buyers who, unfortunately for appellants, turned out to be undercover agents.

Both Coveney and Foss are high school graduates, without significant criminal records and with good employment histories. They urge that imprisonment is plainly detrimental to their rehabilitation.

Coveney was raised in a stable home. However, he had an unhappy marriage and a divorce, and afterwards did not keep up child support payments. For four years he took part in the drug scene from which, he says, he has since extricated himself. He was snorting cocaine daily at the time of his arrest, and admits that he was selling small quantities to friends to support his habit. He says that for facilitating the instant sale he was to receive only a small amount of cocaine for personal use. Imprisonment interrupts both his steady employment as a model maker and his plans to remarry.

Foss, engaged to Coveney’s sister, came from a broken home in which he was under severe stress as described at length in a psychologist’s letter. He was addicted to heroin but, according to the psychologist, was “one of the more lasting cures of heroin addiction I have encountered”. It appears that he was no longer a heroin user at the time of the offense. He reportedly dealt in the cocaine as a favor to Coveney and for a small profit, which he claims was $50. The psychologist wrote that imprisonment would be a “tragedy” for Foss’ heroin cure and would impose a “disaster” upon his already strained family, consisting of a mother, brother, and twin half brothers.

At the sentencing hearing each appellant and Russo, all then represented by the same attorney, were invited to inspect and offer corrections to their pre-sentence reports. Told by counsel that Russo denied one piece of information in his report, the court ordered it stricken; Coveney and Foss did not object to anything in their reports. The court asked if there were distinctions among the three in degree of culpability. The Assistant United States Attorney said he thought not, except that Russo, although he had “set the entire thing in motion”, had aided in the apprehension of another cocaine seller. Russo’s cooperation led the court to sentence him to two years, while sentencing Foss and Cove-ney each to three (followed by the mandatory three year parole term). The court then made the following statement which forms the basis of much of the argument on appeal.

“The reason for the sentence of the Court is simply the word cocaine. That is the one — That is the explanation. Hard narcotics in my opinion demand hard sentences, not because the Court has any fear that you gentlemen will start returning to dealings or facilitating the dealings in narcotics. In this morning’s paper, it was reported that in New York City, arrests for narcotic sales have been cut 75 percent since the imposition of the harsh state penalties in New York State by the Administration of the State of New York. That isn’t the reason for my sentences. It is just consistent with my view of trafficking in narcotics.
“I am well aware that you three young men were not dealers in the sense of big suppliers. If you were, the sentences would be very, very much more, as your lawyer could advise you. Anyone who facilitates the transactions in the hard narcotics— and I consider that cocaine is a hard narcotic — has to be made a lesson of, to cut down on the traffic, to cut down on relatively innocent persons like yourselves, who got caught up in the drug subculture, to the terrible misfortune in your own personal lives, the lives of your families — I have here a moving letter from the father of one of the defendants, and equally moving letter from the mother of another of the defendants.
“It is just too late. It is not just a question of your welfare as much as it is a question of the welfare of young people in this community who but for jail sentences of this type will- be introduced to these narcotics, and in my view it is essential to take harsh steps to endeavor to bring the community out of this scourge.
“I have and must state that I considered the plea of guilty which has been entered here by each of these defendants. I have already stated as much as I will with respect to the distinction between Mr. Russo and the other two defendants.”

About four months after sentencing new counsel for appellants filed Rule 35 motions claiming that the sentences were not individualized because they were unjustified by any need for rehabilitation, supported only by considerations of general deterrence, and based upon the district court’s misapprehension of the nature of cocaine. Accompanying the motion were four affidavits from experts in cocaine research stating that cocaine is not a narcotic but a stimulant, that it is nonaddicting, and that it is harmless relative to alcohol, heroin, and amphetamines. In a companion motion appellants asked to examine the pre-sentence reports because such was “necessary for the prosecution” of the Rule 35 motion.

The district court denied without opinion the motions to examine the pre-sentence reports. It did, however, issue an opinion concerning the Rule 35 motions. No hearings were held. The court stated that “various points made in the motions and supporting memorandum are substantial and call for comment”, but that it continued to believe that cocaine is properly classified by 21 U.S.C. § 812 as a Schedule II drug. Two studies were cited as showing that cocaine has “a high potential for abuse and for severe psychological dependence.”

Stating that, although the “extent to which so-called general deterrence is a valid consideration in fixing sentences is indeed a difficult question”, the court cited Justice Marshall’s comment in Powell v. Texas, 392 U.S. 514, 531, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), that the validity of the deterrence justification has not been disproved. The court expressed a belief that “calculated crimes” were more likely to be deterred than crimes of passion; that those requiring several persons would be deterred ahead of offenses committed by single offenders; and that “it is still widely assumed that prison sentences have a generally deterrent effect.” [citing Furman v. Georgia, 408 U.S. 238, 307, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] Finally, the court stated that it had fully considered, and taken into account in the sentence, factors other than general deterrence:

“The court’s statement at the time of sentencing did not undertake to state all of the reasons for the sentences imposed but rather the reasons that would enhance the hopefully deterrent effect of the sentences. By our arguably harsh sentences and statements of reasons in narcotics cases we are endeavoring not only to protect the community but also to deter potential narcotics sellers whom we believe will be informed of the type of sentences imposed in these cases, although there may be no mention of particular cases in public media of communication. We believe that this sort of information travels by word of mouth.
“Factors other than general deterrence were, of course, weighed and considered in determining the appropriate sentences. Codefendant Russo was treated differently for reasons that appear in the record. Consideration was given to defendant Foss’s heroin habit of approximately two bags per day when he was addicted in 1970 and to the confidential psychological report attached to the presen-tence report in his case. An example of other factors than general deterrence considered in Coveney’s case is his having experimented with drugs other than cocaine and his habit in November 1972 of snorting cocaine at the rate of a gram per day. These and other factors indicated the defendants’ need for individual rehabilitation.”

On appeal Foss and Coveney argue first that the district court’s sentences were not sufficiently individualized, either as a matter of constitutional or general law, or as required by Congress, which recently removed certain mandatory minimum sentences in narcotics offenses. Second, they argue that the district court improperly denied them a hearing on their claim that it was wrong in its beliefs concerning cocaine. Third, they contend that the procedure followed by the court deprived the defendants of their right of allocution. Finally, they claim that their new attorneys were erroneously denied access to the presentence reports.

I

The rule is of long standing, and was reaffirmed this term, that a court of appeals may not reverse or tamper with a sentence that is within legal limits. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 . . . (1974). See United States v. Walker, 469 F.2d 1377 (1st Cir. 1972). Appellants recognize the general doctrine, but rely upon an exception acknowledged in Dorszynski, permitting “limited review . . . when sentencing discretion is not- exercised at all”. Id. Sentences dictated by a “mechanistic” concept of what a particular type of crime invariably deserves have been held to fall within this exception: a judge holding such fixed ideas is presumably closed to individual mitigating factors. Thus appellate courts have vacated sentences reflecting a preconceived policy always to impose the maximum for a certain crime. United States v. Hartford, 489 F.2d 652 (5th Cir. 1974); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970). A rigid policy involving even less than the maximum may be objectionable; any kind of mechanical sentencing that steadfastly ignores individual differences is to be avoided. Cf. United States v. Baker, 487 F.2d 360 (2d Cir. 1973); Woolsey v. United States, 478 F.2d 139 (8th Cir. en banc 1973). In United States v. Thompson, 483 F.2d 527 (3d Cir. 1973), the Third Circuit required disqualification of a judge with an announced policy of sentencing draft violators to 30 months if they were “good people” and more otherwise. The court said at 529,

“A fixed view as to sentencing is . inconsistent with the discretion vested in the trial judge that he may fulfill his mandate to tailor the sentence imposed to the circumstances surrounding each individual defendant.”

Cf. United States v. Townsend, 478 F.2d 1072 (3d Cir. 1973). The Supreme Court said in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949),

“[T]he punishment should fit the offender and not merely the crime. . The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.”

See also Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).

However, the view that punishment should fit the offender has never yet been held to eliminate general deterrence as a factor to be considered along with others. See M. Frankel, Criminal Sentences: Law Without Order 106 (1972). This is so even though general deterrence concerns itself not with the individual offender but with the sentence’s impact on others. A commentator describes it as “the only goal we can accept in advance for punishing all crimes committed by all persons, without scrutinizing the facts of the particular case in which punishment may be imposed.” H. Packer, The Limits of the Criminal Sanction 63 (1968). There aré widely differing views about general deterrence. Id. at 39-45. But the Supreme Court’s latest word makes it plain that even if we were so disposed, we could not announce the demise of general deterrence as a proper sentencing consideration. In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), the Court said,

“An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses.”

There thus remains room, even when imposing an acceptably “individualized” sentence, for a judge to look beyond the offender to the sentence’s presumed effect on others. The court may send a bribe-taking official to jail even though there is little chance of a repeat offense, no public danger if he is free, and no likelihood that jail will rehabilitate him. The court’s duty to “individualize” the sentence simply means that, whatever the judge’s thoughts as to the deterrent value of a jail sentence, he must in every case reexamine and measure that view against the relevant facts and other important goals such as the offender’s rehabilitation. Having done so, the district judge must finally decide what factors, or mix of factors, carry the day. While the judge’s conclusions as to deterrence may never be so unbending as to forbid relaxation in an appropriate case, they may nonetheless on occasion justify confinement although other factors point in another direction.

Whether the threat of jail deters trafficking in drugs is, of course, controversial, especially when the individuals jailed are small dealers and first offenders. Many views are held on the “criminalization” of drug offenses, the nature of desirable penalties, and the lines to be drawn between those who deal on a large and on a small scale. But we cannot say, as a matter of law, that deterrence is an inappropriate consideration in drug cases generally or in this. case. By abolishing mandatory minimum sentences for first offenders, Congress, when it adopted the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., undoubtedly signalled an end to inflexible mínimums for first offenders in favor of a more flexible sentencing policy. Were we satisfied that the judge in this case was substituting his own preconceived version of a minimum term, we would hold the sentence invalid. But, as we shall indicate, we do not think that he did so. Moreover, although the history of the 1970 Act reflects far more sympathy than formerly to rehabilitative goals, it does not show that Congress meant to exclude all others. The House Committee describes the bill as combining “both the punitive and rehabilitative approaches to the problem of drug abuse”, and speaks of attacking the “illegal traffic in drugs . with the full power of the Federal Government”; the price of such traffic is to be made “prohibitive” and “too dangerous to be attractive”. 1970 U.S.Code Cong. & Admin.News, pp. 4566, 4574-4575. The 1970 Act does provide lesser penalties for mere users than for those who deal, and it shows some special solicitude for marijuana users and distributors. 21 U.S.C. § 841. Neither appellant, however, falls within any such category. The district court did not overstep limits imposed by the statute itself. Balancing the different and sometimes conflicting sentencing aims, including general deterrence, was a task for the sentencing court.

The judge did not act mechanically. The sentences were well below the maximum; the judge said that they would have been much greater had defendants been big suppliers; Russo was treated differently from appellants; the court heard and demonstrated familiarity with all mitigating facts and arguments. And, referring to evidence of appellants’ former drug habits, the court indicated that it considered other aims beyond deterrence including, it says, rehabilitation. The rehabilitative value of prison is a matter of increasing doubt in many minds; but it is not unimaginable that incarceration might guard against repetition by separating appellants 'from the drug community and underscoring the seriousness of the offense. While, when addressing appellants, the court expressed confidence that they would not return to dealing, this could hardly be predicted with utter certainty. The opinion denying the Rule 35 motion stressed that the focus of the court’s original remarks was narrowed to enhance their deterrent impact and should not be taken as a complete expression of reasons.

Finally, there is insufficient evidence of inflexibility in other drug cases to establish that the judge approaches each case with a closed mind. Cf. United States v. Charles, 460 F.2d 1093 (6th Cir. 1972). We might weigh such evidence, especially in a close case, but counsel’s oral representations that jail sentences were imposed by this district judge in seven of eight drug cases ate inadequate. The eighth case, of course, suggests that the judge is not utterly “mechanistic”, and we cannot say without knowing more about each ease that the jail sentences were proof of a policy of any particular type.

The judge’s remarks in the present case, while reflecting a stern policy, fall short — -we do not say by much — of the impermissible. Undoubtedly we are influenced by the court’s manifestations of concern, patience and receptivity, indicating that his philosophy was tempered by a ‘ willingness to weigh individual facts. The case contrasts with others in which a sentencing judge’s inflexibility was underscored by reverse qualities. Appellants’ quarrel, we think, is not really with any failure to exercise true discretion; it is with a sentencing philosophy which gives to general deterrence a prominence appellants dislike. Yet we are without authority to review questions of this sort.

Judge Frankel and others remind us that we are the only civilized country in the world that permits “one judge to exercise unbridled discretion, not subject to review, as to the extent and duration of punishment.” See United States v. Bowser, 497 F.2d 1017 (4th Cir. 1974). Institution of review would change the locus of the problem; it is unlikely to eliminate it. Criminal punishment has been termed a form of social control “necessary but lamentable” because “it inflicts suffering in the name of goals whose achievement is a matter of chance.” H. Packer, supra at 62. We know of no happy set of rules that could successfully guide the district court in its difficult task, and the Supreme Court, see Dorszynski, supra, has indicated that the formulation of such rules will be left to the legislature. The element of uncertainty is endemic to the present allocation of functions, and perhaps particularly and poignantly apparent in cases of this sort; on the other hand, both appellants were willing to deal illegally in cocaine, and with strangers, and at least one did so for monetary gain at a time when he denies being an addict. We cannot say that the sentences which were well within statutory limits were improper, nor should they have been entirely unexpected.

II

The court did not err in denying without hearing the motion for correction or reduction of sentence under F.R.Crim.P. 35. Such motions ordinarily do not require an opportunity for oral submission. See United States v. Garrick, 399 F.2d 685 (4th Cir. 1968). Appellants argue that the sentencing judge was “obviously” impelled to give the three year sentences because he believed, mistakenly they say, that cocaine was a hard narcotic and an addicting drug. They further argue that he was wrong in his belief that particular penalties or sentences deter others from committing offenses, especially drug offenses. The defense affidavits from experts in the field of drug research supported these propositions, especially the former, although they also seem to go beyond any issue open to the district court by attacking the wisdom of the drug laws per se. Cocaine was made a Schedule II controlled substance by Act of Congress. 21 U.S.C. § 812(e) 11(a)(4). It may be removed but only by administrative procedures spelled out in the legislation. 21 U.S.C:' § 811(a)(2). The criminalization of cocaine reflects a societal policy binding upon the courts; the district court was neither bound nor authorized to delve into the policies underlying the drug laws except as might be appropriate to exercise fairly its individual sentencing discretion.

Appellants were of course entitled to present, in mitigation of sentence, scientific views on the dangerousness of cocaine. See F.R.Crim.P. 32(a). Such submissions should have been made at the initial hearing; by the time of the Rule 35 motion the court had discretion to refuse data that could have been presented earlier. Nonetheless, the court received, considered and responded to the motion and the affidavits; it was not required to do more. Indeed, the data in the affidavits was of a “legisla-' five” variety which lent itself to written submission rather than the trial-type confrontation referred to in the Sixth Amendment. Many of the judgmental considerations affecting sentencing— ideas of value, policy and fairness” — infiltrate from “books, colleagues, perhaps people generally”. See M. Frankel, supra at 73. A judge who might, the week before, in another case or at a sentencing conference, have explored in depth data and opinions pertinent to one policy aspect of sentencing, need not go through the entire informational process again.

Less so would the judge, even at an initial hearing, be required to hear expert testimony on the philosophy of deterrence. Whatever appellants’ views as to the “weight of modern scientific evidence”, debate still rages on a proper hierarchy of sentencing values; while a judge should remain continually open to new ideas, he is not required to hold evi-dentiary hearings on such issues which-are not quantifiably “scientific” but remain largely judgmental.

Ill

The district court complied with our rule, set forth in United States v. Picard, 464 F.2d 215 (1st Cir. 1972), to disclose the presentence report to appellants and their counsel at the time of sentencing. See also proposed F.R. Crim.P. 32(c)(3)(A), which makes such disclosure the general rule except in circumstances where serious harm to the defendant or others might result. We think the court should similarly have allowed new counsel to inspect the report for purposes of a Rule 35 motion. The reports were material to the motion. The court itself relied on information in the reports in responding to the motion. That we are able to find nothing specially derogatory in the reports, and nothing which appellants and new counsel did not apparently already know, merely underscores the desirability of disclosure. Non-disclosure appears simply to have created a further appellate issue. The only apparent error in the reports is a statement that Coveney was snorting cocaine at the rate of about one gram a day when he was arrested in November, 1972. Coveney was arrested in October, not November. But the report goes on to repeat Coveney’s assertion that he has not used drugs since his arrest. As there appears to be no information in the reports not already known, in substance, to appellants and counsel, and as the mistake in date seems trivial, we hold that the court’s error in not disclosing was not prejudicial. Nonetheless, counsel may themselves inspect the reports at this time, and should they discover what they believe to be prejudicial information or misinformation therein, may bring the same to the district court’s attention by further motion.

Affirmed.

      . Coveney, who had jjleaded to a single count, was eligible for a sentence up to 15 years’ imprisonment and a fine of $25,000. 21 U.S.C. § 841(b)(1)(A). There is no mandatory minimum sentence. Foss, who had pleaded to two counts, could have received double that.

      . The label is sometimes used to include aims which Judge Frankel describes separately as “denunciation or condemnation”, i. e., punishment “ . . . as an affirmation and re-enforcement of moral standards and as reassurance to the law-abiding.” Op. cit., 106. To persons believing that all punishment must serve the aim of reshaping the offender’s behavior, deterrence is sometimes viewed as a thinly disguised notion of retribution ; but as Packer and Frankel point out purely behavioral views of criminal punishment carry dangers of their own.

      . Appellants argue that they should have been heard on the Rule 35 motion as part of their “right of allocution”. Allocution is, however, the right to make a statement to the sentencing judge before he pronounces sentence, not a privilege to have the last word. Cf. United States v. Leavitt, 478 F.2d 1101 (1st Cir. 1973). The right was fully afforded here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Earl DILTS and Larry E. Cravens, Defendants-Appellants.
    Nos. 73-1827, 73-1828.
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 1974.
    Decided July 9, 1974.

      Warren Lupel, Chicago, 111., for def endants-appellants.
    Donald B. Maekay, U. S. Atty., Springfield, 111., Max J. Lipkin, Asst. U. S. Atty., Peoria, 111., for plaintiff-appellee.
    Before CUMMINGS, STEVENS and SPRECHER, Circuit Judges.
   PER CURIAM.

,A jury found both appellants guilty of eight separate violations of 18 U.S.C. §§ 2314 and 2. The indictment charged the defendants with causing the interstate transportation of eight forged checks. Each check was purportedly drawn by the Safeco Insurance Company on the Boatmen’s National Bank of St. Louis, and made payable to John R. Stack; six of the checks were in the amount of $168.03 and two were for $987.72.

The evidence showed that the appellants, together with the government’s witness Baker, decided in December, 1972, to make some money by utilizing blank Safeco checks in the possession of Dilts. Checks were then cashed at eight different business establishments in the Southern District of Illinois. Four were cashed in.Peoria, two in Moline, and two in Pekin. It was stipulated that, had the government called him as a witness, John R. Stack would have testified that a Selective Service card and two Bradley University identification cards were stolen from his place of residence. The record also disclosed that documents answering this description were found in a search of Dilts’ residence.

Appellants advance four arguments for reversal; (1) that it was error to permit the prosecutor to use a misdemeanor conviction to impeach a defense witness; (2) that they were deprived of a fair trial by the judge’s cross-examination of that witness; (3) that the evidence described only one offense rather than eight separate offenses; and (4) that the prosecutor’s reference to the indictment of appellant Craven for another offense was reversible error.

I.

After having asked the witness Toland about his four felony convictions, the prosecutor asked whether he had been found guilty of disorderly conduct, a misdemeanor. It was error for the court to allow such a question, but it was unquestionably harmless.

While any recent felony conviction may be used to impeach a witness, in the case of misdemeanors, “most courts have . . . require[d] that . the offense ... be one involving ‘moral turpitude.’ ” McCormick, Evidence, § 43, at 85 (2d ed. 1972). The circuits are divided on the extent to which the rule should be followed; the Third Circuit applies the rule, chosen by the Advisory Committee on the Proposed Rules of Evidence for the Federal Courts, that misdemeanors must amount to crimen falsi. We need not decide whether to follow the rationale of the Third Circuit, for, even under the “moral turpitude” standard, the disorderly conduct conviction should not have been used to impeach the witness here. If selling amphetamines without prescriptions and obstructing police officers have not been considered to be misdemeanors involving moral turpitude, disorderly conduct is certainly not such a crime. It was error to allow the impeachment.

Nevertheless, it is clear that the error was harmless. Since the witness had already been impeached with four felony convictions, the introduction of a misdemeanor conviction which produced only a $40 fine was, at most, merely cumulative. Since the evidence of guilt is unusually strong, we have no doubt that the error was harmless under the test enunciated in Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed.2d 1557.

II.

Appellants argue that the extensive questioning of the witness Toland by the trial judge deprived them of a fair trial.

Toland shared an apartment with one Larry Baker during December, 1972, the month in which the check forgeries were alleged to have occurred. During that month, a party was held at the apartment; the appellants were among those present. Toland testified that Baker went into the bedroom and returned with a box containing a check protector and some papers. He then testified that Baker asked the appellants and their co-defendant at trial “if they wanted to get into this check thing with him, to see if they could make some money. And Larry and Earl denied it.”

On cross-examination, the prosecutor asked nothing about this party, choosing only to impeach the witness with his criminal record. The trial judge, however, sought to elicit from the witness the date of the party, presumably to see if it was before the 20th of December, the first of the dates named in the indictment. The witness testified that, although he could not specify the date, to the best of his knowledge it was in the second week of December, that is, between the 10th and 16th of the month. Thereafter, the judge continued to question the witness, in a manner the appellants not unfairly label cross-examination. In all, the judge’s questioning occupies eight pages of the transcript.

Although the duty of the trial judge to exercise his control of a trial in an impartial manner is beyond dispute, it is difficult “for an appellate court to determine from a reading of words spoken at trial whether questions by the judge had the effect of unfairly disparaging the defense.”

In United States v. Tobin, 426 F.2d 1279 (7th Cir. 1970), we held that the trial judge’s cross-examination of a critical defense witness required reversal; in that case, as Judge Hastings pointed out, the judge’s “line of questioning went to a critical element of the defense” and the “question of guilt [was] a close one.” Id. at 1282. In this case, however, we do not regard the question of guilt as close, and it is clear that the judge’s examination of Toland did not relate to one of the central questions before the jury. The precise date of the party at Toland’s apartment was less important to the defense than the testimony about what was said at the party. Moreover, even if the jury had believed that Toland was telling the truth about what the appellants said, that would not establish their innocence if the jury also believed the government’s testimony concerning the appellants’ actions. We are satisfied that the judge’s questioning related to a collateral matter, and even if it revealed a somewhat skeptical attitude toward the veracity of Toland, it does not warrant reversal.

III.

Appellants argue that the trial court erred in treating the negotiation of each check as a separate violation of § 2314.

Ever since the Supreme Court’s per curiam decision in Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75, it has been clear that a single transportation of several securities constitutes only one violation of § 2314. In the present case, however, each of the eight counts charged that a forged check was cashed at a different time and at a different place. Since each interstate transportation was therefore initiated at a different time and place, there is no reason to assume that all of the forged instruments traveled to the drawee bank in the same conveyance.

The circuits are divided on the question whether different violations of the statute are proven if the evidence merely establishes that the interstate transportation of different forged securities commenced at different business establishments. In Amer v. United States, 367 F.2d 803 (1966), the Eighth Circuit held that different negotiations were different violations of § 2314. In Gilin-sky v. United States, 368 F.2d 487 (1966), however, the Ninth Circuit set aside a conviction based on evidence that 'different forged checks, though cashed at different business establishments, had traveled in the same pouch from the State of Washington to Kentucky. The court concluded that “[c]hanee or circumstance . . . [came] to the aid of a wrongdoer . . . [because] the federal crime with which we are here concerned proscribes not the passing but rather the transportation of forged checks.” 368 F.2d at 490.

In this case there is no reason to assume that the different checks traveled across state lines in the same pouch. Moreover, we agree with the Eighth Circuit that “the units of criminal prosecution [should not be] made dependent upon the happenstance of bank transmission procedure . . . . ” Amer v. United States, supra, 367 F.2d at 805. In United States v. Driscoll, 454 F.2d 792, 801 (1972), the Fifth Circuit, although citing Gilinsky but not Amer, held that the number of offenses under § 2314 is governed by the number of instances of passing forged checks. In a lengthy analysis of the same issue, Judge Kaufman reached the same result in Ketchum v. United States, 327 F.Supp. 768, 773-776 (D.Md.1971).

If all of the instruments had been negotiated at the same time and place, it would be reasonable to infer that only one transportation would ensue and, therefore, that only one offense was committed. On the facts disclosed by this record, however, we hold that since the indictment alleged eight separate instances of negotiating forged securities, it alleged eight separate violations of § 2314.

IV.

The prosecutor commenced his cross-examination of the defendant Cravens by asking if he was under indictment for intimidating a witness who had testified in the government’s casein-chief. Defense counsel objected and the district court sustained the objection; the witness, perhaps not understanding the significance of the judge’s action, nevertheless answered in the affirmative. The court denied the defendants’ motion for a mistrial. No special curative instruction was either sought or given.

An indictment is a charge, nothing more. It is, therefore, plainly improper to bring to the jury’s attention that a witness has been indicted. Nevertheless, we are not persuaded that reversible error resulted from the question. The fact that the trial judge sustained an objection would tend to establish its impropriety in the jury’s mind. We cannot say that the perception of an experienced trial judge that the circumstances were not such as to warrant a mistrial was incorrect.

Our appraisal of the significance of the improper question is complicated by the oral argument which the Assistant United States Attorney presented before us. Going completely outside the record, counsel sought to justify his trial conduct by giving us an extended account of the other crimes for which appellants have been either indicted or convicted, and of which he personally believed them guilty. This argument was patently improper; the extent to which criminal defendants are charged with other illegal activity has no bearing on the merits of this proceeding.

This kind of argument is entirely inappropriate “from counsel who are engaged, with [us], in administering justice.” United States v. Ott, 489 F.2d 872, 874 n. 2 (7th Cir. 1973). It becomes neither this court nor the United States, whom counsel was representing. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. We have previously felt compelled to criticize this Assistant United States Attorney for departing from the record. In view of this history, we have considered the need for an exercise of our supervisory power as a deterrent to deliberate prosecutorial misconduct. Cf., United States v. Trutenko, 490 F.2d 678, 681 (7th Cir. 1973). We have concluded, however, that since the flagrant misconduct occurred before us, rather than in the trial court, these judgments should not be reversed. We trust that we will not have to appraise the same issue in any future case.

The judgments are

Affirmed.

      . 18 U.S.C. § 2314 provides, in pertinent part:
      “Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited
      *6 % sis ¡k
      “Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
      18 U.S.C. § 2 provides:
      “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
      Counts One and Two also charged a third defendant. He was tried and convicted at the same trial. He has been sentenced as a youthful offender and has not appealed.

      . See United States v. McCarthy, 445 F.2d 587, 590-591 (7th Cir. 1971).

      . For example, the Fifth and Sixth Circuits follow the rule as McCormick has enunciated it. See Myers v. United States, 377 F.2d 412, 423 (5th Cir. 1967) ; United States v. Conder, 423 F.2d 904, 911-912 (6th Cir. 1970). The Fourth and Tenth Circuits follow it except to the extent of permitting impeachment by petit larceny if it is a criminal case. See United States v. Pennix, 313 F.2d 524, 531 (4th Cir. 1963) ; Butler v. United States, 408 F.2d 1103, 1104 (10th Cir. 1969). The Ninth Circuit forbids impeachment by misdemeanors in any event. See Johnson v. United States, 424 F.2d 537 (1970).

      . See Rule 609 and the Committee commentary.

      . See United States v. Evans, 398 F.2d 159, 164 (1968). Cf. Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 940 (1967) (Burger, J.) for a discussion of the reasons why impeachment of an accused who testifies ought to be only by those prior convictions bearing upon honesty and veracity. The “rule of thumb” proposed in that case was not adopted as a per se limitation on the district judges in this circuit. See United States v. Cox, 428 F.2d 683, 689 (1970) ; United States v. Escobedo, 430 F.2d 14 (1970). But see the concurring opinion of Judge Kiley in Escobedo, 430 F.2d at 21-22.

      . See Myers v. United States, supra, and Johnson v. United States, supra.

      . The Court there stated: “If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. . . . ”

      . Tr. 198.

      . See Quercia v. United States, 289 U.S. 466, 469-470, 53 S.Ct. 698, 77 L.Ed. 1321.

      . United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970). We also agree with the passage from Judge Moore’s dissent in United States v. Guglielmini, 384 F.2d 602, 608 (2d Cir. 1967) quoted by Judge Waterman in Grunberger-. “[E]very judge lias his own individual manner of conducting a trial and, of necessity, must have great leeway in so doing. Even appellate decisions cannot reduce the judicial personality to a common colorless denominator.” Ibid.

      . Although the appellants claim that error resulted when the district court sentenced them, the cases cited in their brief make clear that they are questioning indictment and prosecution for separate offenses as well. If the indictment was j)roper, as we understand the substance of the argument, no question concerning whether the court abused its discretion in sentencing arises.

      . In Castle, the defendant carried five forged American Express Company money orders on Ids person on a trip from Indiana to Texas. The Court of Appeals had held that each forged money order constituted a separate offense under § 2314. See 287 F. 2d 657 (5th Cir. 1961). In its one paragraph opinion, the Supreme Court relied upon Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905.

      . “By Mr. Bipkin :
      Q Mr. Cravens, you are under indictment in this court, are you not, for attempting to intimidate Wasson so that he wouldn’t tell the truth at the last trial ?
      MR. HAMM: If the Court please—
      THE COURT: Objection will be sustained.
      MR. I-IAMM: I am going to ask that a juror be withdrawn from the jury box.
      THE COURT: Motion will be denied.
      THE WITNESS : Yes, sir, I’m under the indictment.
      MR. HAMM: Mr. Cravens, the objection was sustained.
      THE WITNESS: Yes, thank you.” Tr. 246

      . “A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearing evidence, and because accusation carries no implication of guilt.” Coulston v. United States, 51 F.2d 178, 182 (10th Cir. 1931). “This rule is based upon a clear recognition of the fact that the probative value of such evidence is so overwhelmingly outweighed by its inevitable tendency to inflame and prejudice the jury against the defendant that total and complete exclusion is required in order that the right to trial by a fair and impartial jury may not be impaired.” United States v. Pennix, supra, n. 3, 313 F.2d at 529. Compare Ewing v. United States, 386 F.2d 10, 15 (9th Cir. 1967), in which the prosecution adduced facts showing the attempted bribery of a government witness by defendant, before trial. Even the proof of facts of misconduct, however, is not universally accepted. See McCormick, Evidence, § 42, at 82-83.

      . Similarly, the fact that they have been convicted of other crimes subsequent to the trial in question is not relevant. The fairness of the trial is judged by the circumstances extant at the time of trial.

      . See United States v. Hernandez, 486 F.2d 614, 618 (7th Cir. 1973).

      . In United States v. Ott, supra, the prosecution had misrepresented a material fact to the district court and, on appeal, government counsel failed to bring the correct facts to our attention on his own initiative.


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Donaciano L. PECINA, Appellant.
    Nos. 74-1058 and 74-1059.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1974.
    Decided Aug. 1, 1974.
    Certiorari Denied Dec. 16, 1974.
    See 95 S.Ct 660.

      Lewis E. Pierce and William E. Shull, Kansas City, Mo., for appellant.
    Bert C. Hurn, U. S. Atty., and Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, BRIGHT, and WEBSTER, Circuit Judges.
   GIBSON, Circuit Judge.

Defendant, Donaciano L. Pecina, was charged in two separate indictments; the first charged defendant in four counts with stealing women’s clothing, possessing the same clothing, stealing men’s coats, and possessing the same coats, and the second charged defendant with injuring Jerome Daniel (Dan) McFarland, a Government informant in violation of 18 U.S.C. § 1510. The trial of the two cases was consolidated, and the jury found defendant guilty of stealing and possessing the women’s clothing and of injuring the Government informant. The District Court sentenced defendant to concurrent sentences of five years on each of the three counts on which defendant was found guilty.

On appeal defendant advances one argument concerning his conviction for the two counts under 18 U.S.C. § 659: “[T]here was no evidence introduced connecting the defendant with the theft [of the women’s clothing] from the truck, nor with any property that was demonstrated to have been stolen from the Yellow Freight Truck Systems.” Second, defendant argues that he cannot be convicted of violating 18 U.S.C. § 1510 because the injury of Dan McFarland occurred after judicial proceedings had been instituted.

Defendant was a truck driver for the Yellow Freight Systems, Inc., which the FBI knew had been experiencing theft losses. On January 18, 1971, defendant was driving a truck containing women’s clothing which was being transported from a California manufacturer to two retail stores in two Kansas towns. Defendant stipulated that the clothing was moving in interstate commerce and that his “shipping” sheet for January 18, 1971, reflected $3,800 of missing women’s clothing.

On January 20, 1971, Dan McFarland, the Government informant, purchased two dresses bearing the same California manufacturer’s labels as the missing dresses from defendant at his home for one-third of the retail price. McFarland showed Special Agent Allen Rotton of the FBI these two dresses, and one of the dresses was admitted into evidence. When McFarland purchased these two dresses, he also noticed a carton with one of the Kansas retailer’s name stamped on it and a clothing rack containing similar dresses. Further, McFarland saw another man purchase a similar dress from defendant at the same time.

On January 20, 1971, FBI agents searched defendant’s home and seized certain clothing. On February 3, 1971, defendant was charged with stealing and possessing the women’s clothing, but these charges were dismissed by the Government after a federal district court on June 11, 1971, suppressed the evidence seized in the January 20th search. The Government did not appeal the adverse suppression ruling. The dress purchased by McFarland and introduced into evidence at trial was not subject to the suppression order. The case remained under investigation, and Dan McFarland during August, 1971, gave the FBI information concerning defendant’s connection with the allegedly stolen men’s coats.

Defendant tried at different times to find out the identity of the Government informant from Special Agents Rotton and Jack Knox and told Rotton that “he felt like killing the guy” for informing on him. At defendant’s basement garage on January 23, 1972, defendant shot McFarland three times. Defendant claimed that McFarland drew a gun and a struggle occurred resulting in the shots that injured McFarland. McFarland testified that defendant shot him in the back first and a struggle occurred with the two other firings resulting. During his appearance before the United States Magistrate on January 24, 1972, and after defendant’s arrest, defendant denied having fired a gun since 1961. A nitrate swab test administered by federal agents on January 24th showed gunpowder traces on defendant’s right hand.

Reviewing the sufficiency of the evidence for the convictions of the charges in the first indictment, we hold that there was sufficient evidence for the jury to find that defendant stole and possessed the women’s clothing worth over $3,800.

First, the evidence was sufficient to demonstrate that defendant converted the women’s clothing with the requisite intent. Defendant stipulated that his shipping statement showed a large quantity of missing women’s dresses. McFarland bought two women’s dresses at one-third the market value, noticed a rack of similar dresses at defendant’s home, and observed a sale by defendant to another individual. Special Agent Rotton observed the two dresses purchased by McFarland, which bore the same labels as the missing dresses. Such circumstantial evidence is relevant to prove that defendant stole the women’s clothing. United States v. Yates, 470 F.2d 968, 970 (10th Cir. 1973); Rice v. United States, 411 F.2d 485, 489 (8th Cir. 1969). The Government also has the benefit of the inference that defendant’s possession of recently stolen goods, unless the possession is accounted for in a reasonable and satisfactory manner, indicates that defendant converted the goods with the requisite criminal intent. United States v. McCoy, 472 F.2d 704, 706 (6th Cir.), cert. denied sub nom. Matney v. United States, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 147 (1973). We, therefore, find that there was sufficient evidence for the jury to convict defendant of stealing the women’s clothing.

Second, much of the same evidence provides sufficient proof that defendant possessed the stolen women’s clothing. In addition, an inference that defendant knew the goods were stolen may be made from the fact that the defendant had in his possession recently stolen goods, unless the possession of those goods is explained in a reasonable and satisfactory manner. United States v. Dugan, 477 F.2d 140, 142 (8th Cir. 1973), citing Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967). The defendant’s shipping statement with the missing dresses was dated January 18, 1971, and McFarland purchased the two dresses with the same labels as the missing dresses on January 20, 1971. Clearly, the inference is allowable under these facts. Also, the fact that the goods were sold cheaply strongly implies that defendant possessed stolen goods that had to be quickly fenced. United States v. Wer-ner, 160 F.2d 438, 443 (2d Cir. 1947). The evidence was more than sufficient to convict defendant of possession of the stolen dresses under § 659.

Last, defendant argues that his conviction is improper under 18 U.S.C. § 1510 since judicial proceedings had begun prior to the January 23, 1972, shooting of Dan McFarland. Defendant relies on United States v. Cameron, 460 F.2d 1394, 1401 (5th Cir. 1972), which stated;

This Report [H.Rep.No. 658, 1 U. S.Code Cong. & Admin.News 1760 90th Cong. 1st Sess. 1967] makes clear that Section 1510 was designed to deter the coercion of potential witnesses by the subjects of federal criminal investigations prior to the initiation of judicial proceedings.

Neither Cameron nor the legislative history of § 1510 aid defendant in this case. First, Cameron held that § 1510 was inapplicable because there was no informant or “person who has information as to the offense which some third party endeavors to prevent communication of to” a criminal investigator. United States v. Cameron, supra at 1401. Here McFarland clearly was an informant to the FBI. Second, the legislative history of § 1510 indicates, as this court has held, that it “was enacted for the purpose of extending the protection of the preceding §§ 1503 and 1505, afforded witnesses, jurors, and others in judicial, administrative, and congressional proceedings, to potential informants or witnesses and to those who communicate information to said investigators prior to a case reaching the court.” United States v. Williams, 470 F.2d 1339, 1343 (8th Cir.) cert. denied, 411 U.S. 936, 93 S.Ct. 1912, 36 L.Ed.2d 396 (1973). At the time of defendant’s shooting of McFarland, there were no charges filed against defendant. In August or September, 1971, the Government had decided not to appeal the adverse suppression ruling involving the earlier charges of only stealing and possessing the women’s clothing. The Government dismissed those charges during the fall of 1971. Once charges have been dismissed against a defendant, § 1510 should again be available to protect informants and potential witnesses be fore the initiation again of judicial proceedings. On January 23, 1972, McFarland was a Government informant and potentially a witness. It is clear that the charge under § 1510 was proper under the facts of this case and that defendant shot McFarland because of defendant’s belief or suspicion that McFarland informed FBI agents about defendant’s thievery.

Judgments of conviction affirmed.

      . These four counts were all in violation of 18 U.S.C. § 659, which provides in pertinent part:
      Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any * * * motortruck, or other vehicle * * * with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment of freight, or express or other property; or
      Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen * * *
      Shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * * *.

      . That section reads:
      (a) Whoever willfully endeavors by means of bribery, misrepresentation, intimidation, or force or threats thereof to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator ; or
      Whoever injures any person in his person or property on account of the giving by such person or by any other person of any such information to any criminal investigator—
      Shall be fined not more than $5,000, or imprisoned not more than five years, or both.
      (b) As used in this section, the term “criminal investigator” means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.

      . The Honorable Elmo B. Hunter, United States District Judge, Western District of Missouri.

      . All reasonable inferences tending to support the jury’s verdict and all conflicts in the evidence are resolved on appeal in favor of the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967).

      . Williams also rejects defendant’s argument that the Government must prove that defendant has violated a criminal statute before § 1510 applies. United States v. Williams, supra at 1343.


author: PER CURTAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles ZEMATER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond AULER, Defendant-Appellant.
    Nos. 73-1910, 73-1911.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 28, 1974.
    Decided July 25, 1974.

      Barry J. Freeman, Edward J. Calihan, Jr., Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Michael D. Groark, Asst. U. S. Atty., Chicago 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, KI-LEY, Senior Circuit Judge, and STEVENS, Circuit Judge.
   PER CURTAM.

A six count indictment charged five men, including the two appellants, with criminal activity in connection with the alleged operation of prostitution in Saigon in December, 1970. Count I charged a conspiracy to violate the Mann Act and the Travel Act. Counts II, III, IV, and V charged substantive Mann Act violations, each in connection with one of the four women involved. Count VI charged a substantive offense under the Travel Act, namely the use of interstate facilities to effectuate a violation of the Illinois Pandering Statute. The appellants were found guilty by a jury on all six counts.

This appeal challenges the sufficiency of the evidence on Counts IV and V, the correctness of numerous rulings made by the trial judge, and whether the Government’s evidence proves a violation of the Travel Act.

The undisputed facts can be briefly summarized. Both appellants were theatrical agents, Auler working in Milwaukee and Zemater in Chicago. In September, 1970, Auler traveled to Saigon to arrange bookings for three groups of entertainers. In Vietnam he was in contact with one James Cotton, who was planning to open a nightclub named “The Office” in Saigon for the benefit of American servicemen. Upon his return to the United States, Auler asked Zemater to help locate four girls to work in the Saigon club.

In November, 1970, the appellants traveled to Madison, Wisconsin, where they approached Renee Kocoa and Margaret Pauli, the women named in Counts IV and V of the indictment, about going to Saigon. In Madison, they were performing as dancers in a nightclub; they testified that they were given the impression that in Saigon they would be doing the same.

At about the same time, arrangements were made in Chicago with two other women, Sandra Lucido and Bobby Jean Wheeler, to go to Saigon to work in the same nightclub.

On approximately November 28, 1970, the four women and Auler left- Chicago and traveled to Saigon via San Francisco and Hong Kong. The women performed as dancers in Cotton’s nightclub in Saigon. There was also evidence that each of the women engaged in prostitution. After approximately 10 days, the four women left the villa in which “The Office” was located and, with the help of the American Embassy, returned to the United States.

There are three different versions of the facts which must be identified. They may be described chronologically as (1)’ the government’s original theory; (2) the alternate theory; and (3) the post-trial theory.

The original theory of the prosecution, which was supported by the pretrial statements of all four women, their testimony before the grand jury, and the direct testimony of Kocoa and Pauli, was that all four of them were hired to go to Saigon as dancers, that after their arrival they were forced to engage in prostitution, and that they made a dramatic escape from “The Office” to the American Embassy 10 days after their arrival. Although this was the prosecutor’s theory when the case was presented to the grand jury, when the opening statements were made, and during the first portion of the trial, it is no longer seriously maintained.

After the trial was under way, and prior to the cross-examination of Pauli —the second “victim” to testify in support of the original forced prostitution theory — -the government advised the court that their next witness, Wheeler, had drastically changed her story and had completely recanted her earlier statements and grand jury testimony about forced prostitution and the “escape.” Thereafter the government’s evidence tended to support its alternate theory, namely, that the four women were employed by appellants to work voluntarily as prostitutes in Saigon. In the subsequent portions of the trial, the “victims” Wheeler and Lucido, as well as the witnesses VanNess and Monaghan (both of whom testified that they had formerly done business with appellants), gave testimony supporting this theory. Assuming that such testimony is credible, it would be sufficient to support a fairly typical Mann Act violation involving Wheeler and Lucido, and would also provide a basis for inferring that identical arrangements were made with Kocoa and Pauli, since there was evidence that all four women did engage in prostitution in Saigon.

The third version of the entire matter is supported by two rather detailed affidavits attached to appellants’ “Motion to Remand for Hearing on Defendants’ Motion for a New Trial,” which was filed in this court after the case had been taken under advisement. These affidavits, if true, indicate that the original version was correct insofar as it indicated a complete absence of discussion between the appellants and the four women about working as prostitutes in Saigon, and that the alternate version is correct insofar as it indicates that there was no forced prostitution in Saigon and no dramatic “escape” from involuntary custody. Under the post-trial version of the events, appellant merely hired the four women to work as dancers and they voluntarily undertook to enhance their earnings by (a) working as prostitutes in Saigon largely on their own initiative, and (b) contrived the highly publicized escape to the American Embassy to provide material for a lurid book which they contracted to publish upon their return to the States. The affidavits set forth evidence which, if true, and if available at the trial, might have been sufficient to cause the jury to accept the third version as the correct one.

The blatant contradictions in the evidence adduced at trial, and also between certain portions of the record and the post-trial affidavits, make it perfectly clear that significant false testimony was given. Normally a motion such as the post-argument motion to remand which has been filed by appellants should be addressed to the trial court in the /first instance. The extraordinary circumstances portrayed by this record, however, fortified by the paramount importance of avoiding the risk of injustice to the litigants, persuades us that the matter should be more fully explored by the district court before we finally dispose of this appeal.

I.

Without passing on the points argued on the appeal from the convictions on Counts I, II, III, IV, and V, we have decided to vacate the judgment of the district court and to remand the case for such hearings or other proceedings as that court may deem appropriate. Because of Judge McLaren’s firsthand knowledge of the proceedings, Circuit Rule 23 shall not apply. Moreover, if the District Judge concludes that a delay in the hearing is appropriate in order to give any party time to develop relevant evidence, he shall have full discretion to grant such continuances as he deems justified. He shall also have the same authority he had prior to the filing of the notice of appeal to set aside the convictions or to order a new trial. On the other hand, if, after considering the affidavits attached to appellants’ motion, which have not previously been presented to him, as well as such further evidence as he deems relevant, he should then conclude that such evidence, even when considered in connection with the government’s dramatic change of theory during the course of the trial, does not warrant setting aside the convictions, he shall have power to enter a fresh judgment or judgments from which a new appeal may be taken without prejudice to the points heretofore raised by appellants. Compare the procedure described by Judge Hastings in United States v. O’Brien, 444 F.2d 1082 (7th Cir. 1971), see especially 1086-1087. See also United States v. Cleveland, 477 F.2d 310, 316 (7th Cir. 1973).

II.

In all events, however, appellants’ convictions under the Travel Act, 18 U.S.C. § 1952, cannot stand. The difficulty is not, as in United States v. Altobella, 442 F.2d 310 (7th Cir. 1971) and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), that the use of interstate facilities was only incidental to the violation of state law. Neither is it that the general scheme in which the jury believed the appellants to have been involved was outside the ambit of Congressional concern when the Travel Act was enacted. The problem is that the charge in the indictment did not comply with the statutory requirement concerning the sequence of interstate travel and the violation of state law, and, therefore, charged no offense.

The prescriptive language of the statute is set out above. In substance it requires that, for a person to be guilty of its violation, he must have “used a facility in interstate commerce to facilitate the carrying on” of an illegal enterprise as defined by the statute “and thereafter performed the carrying on” of the unlawful activity. An unlawful activity is defined by subsection (b) of the statute as follows:

“(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.”

Its plain language appears to require that the activity following the travel violates the law of the jurisdiction in which it occurs. The question we must decide is whether the travel to Saigon, and the prostitution which then occurred, constitutes a violation of the Illinois Pandering Act so as to come within the language of § 1952, as the indictment specifically charged.

The Illinois Pandering Act is set out in the margin. It is clear from its express terms that a violation of subsection (a)(2), if it occurred, was complete before the travel to Saigon began. Arguably, however, a violation of subsection (a)(1) was incomplete. When that language is read with the provisions of the Illinois Criminal Code asserting the State’s extra-territorial criminal jurisdiction, the activity in Saigon can be treated as completing a violation of the Illinois Pandering Act.

But even if the activity in Saigon violated the Illinois statute, it did not violate the Travel Act. Subsection (b) of the federal statute requires the acts committed after the travel to be in violation of the laws of the state “in which they are committed.” Since Congress could have punished travel merely in furtherance of criminal activity, this language is plainly not superfluous. The “thereafter” clause constitutes an express limitation on the coverage of the statute. By § 1952, Congress authorized the exercise of federal power to aid the states in the enforcement of their criminal laws when offenders travel into such states in order to carry on certain kinds of criminal activity. Since Congress had ample power to authorize federal assistance to any state from which travel with criminal purposes commences, cf. United States v. Walker, 489 F.2d 1353 (7th Cir. 1973), its explicit decision not to do so may not be circumvented by reference to the long-arm criminal jurisdiction statutes of the several states.

The judgments of conviction on Counts I, II, III, IV, and V are vacated and the case is remanded to the district court for further proceedings consistent with the foregoing. The convictions on Count VI are reversed.

      . Title 18 U.S.O. § 371 provides, in pertinent part:
      “If two or more persons conspire . . . to commit any offense against the United States, . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . Title 18 U.S.O. § 2421 provides, in pertinent part:
      “Whoever knowingly transports in interstate or foreign commerce, . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; . . . [sjhall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . Title 18 U.S.O. § 1952 provides, in parti-nent part:
      “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— . . .
      “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, “and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.”

      . The statute, Ill.Rev.Stat. Ch. 38, § 11-16, is set forth in note 13, infra.

      . One of the men named in the indictment was severed as a fugitive; a second pleaded guilty to Count I prior to trial, and the indictment was dismissed as to him on the remaining counts; and, the district court granted the third’s motion for judgment of acquittal at the close of the Government’s evidence.

      . See also United States v. Archer, 486 F.2d 670, 685 (2d Cir. 1973) (Friendly, J.)

      . See Rewis v. United States, 401 U.S. 808, 811-812, 91 S.Ct. 1056, 28 L.Ed.2d 493. See also, n. 11, infra.

      . The indictment charged that the defendants did “knowingly and willfully travel . . . from Chicago ... to Saigon, Republic of Vietnam, with the intent to promote, manage, establish and carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, tliat is, a business enterprise involving pandering, in violation of the laws of the State of Illinois, Chapter 38, Illinois Revised Statutes, Section 11-16, and thereafter did perform and attempt to perform • acts to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of said unlawful activity; all in violation of Title 18, United States Code, Sections 2 and 1952.”

      . See n. 3, supra.

      . The language quoted in the text, which accurately paraphrases the portion of the statute following the word “thereafter,” see n. 3, supra, is taken from the Fourth Circuit’s opinion in United States v. Wechsler, 392 F.2d 344, 347 (1968). If Judge Craven had not italicized the word “thereafter” in his opinion, we would have done so. Cf. United States v. Altobella, supra, 442 F.2d at 314.

      . Had the Government charged a violation of the Travel Act with reference either to Auler’s September trip from Milwaukee to Saigon, or Zemater’s trip from Chicago to Madison, and thereafter the violation of the Illinois Pandering Act, the problem presently under consideration would not arise. Since it would have been a fatal variance from the indictment had the Government sought to prove a violation of § 1952 at trial by reference to this earlier travel, it follows that we cannot uphold the convictions because of it.

      . We need not decide whether violation of the criminal laws of the Republic of Vietnam comes within the prohibition of the Act, for the Government’s theory depended solely upon violation of Illinois law.

      . The Act, Ill.Rev.Stat., Ch. 38, § 11-16, provides as follows:
      “(a) Any person who performs any of the following acts for money commits pandering:
      (1) Compels a female to become a prostitute ; or
      (2) Arranges or offers to arrange a situation in which a female may practice prostitution.
      “(b) Penalty.
      A person convicted of pandering by compulsion shall be imprisoned in the penitentiary from one to 10 years. A person convicted of pandering other than by compulsion shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years.”

      . Ill.Rev.Stat., Ch. 38, § 1-5 provides in pertinent part:
      “(a) A person is subject to prosecution in this State for an offense which he commits, while either within or outside the State, by his own conduct or that of another for which he is legally accountable, if:
      (1) The offense is committed either wholly or partly within the State ....
      “ (b)' An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State. ...

      . “That Congress did not intend to exercise its full constitutional powers in the area of local law enforcement is demonstrated by the wording of the Act and specifically by the use of the word ‘thereafter.’ As the Senate report on S.1653 states :
      ‘ * * * to come within the provisions of the bill some activity in furtherance of a racketeering enterprise, subsequent to the performance of the travel, must take place * * * accordingly the gravamen of the offense will be travel and a further overt act to aid the enterprise.’ S.Rep.No.644, 87th Cong. 1st Sess. 1961, p. 2.” United States v. Altobella supra, 442 F.2d at 314 (footnote omitted).


author: COFFIN, Chief Judge.

text:
    In re BOSTON & PROVIDENCE RAILROAD CORPORATION. In re BOSTON & PROVIDENCE RAILROAD DEVELOPMENT GROUP, et al., Appellants.
    No. 74-1159.
    United States Court of Appeals, First Circuit.
    Argued June 5, 1974.
    Decided July 17, 1974.

      Charles R. Nesson, Cambridge, Mass., with whom Harvey A. Silverglate, Thomas G. Shapiro, and Silverglate, Shapiro & Gertner, Boston, Mass., were on memorandum, for appellants.
    Arthur P. Schmidt, Boston, Mass., with whom Gaston, Snow & Ely Bartlett, Boston, Mass., was on memorandum for National Shawmut Bank of Boston, Charge Trustee, appellee.
    Alan L. Lefkowitz, Boston, Mass.. John L. Davidson, Jr., and Greenfield, Davidson & Mandelstamm, St. Louis, Mo., on memorandum for Dumaines, ap-pellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Appellant seeks to prevent the distribution of funds held by the National Shawmut Bank as Charge Trustee, under an Indenture executed pursuant to the plan of reorganization (Plan) for the Boston and Providence Railway Corporation (B&P). The Indenture imposed upon all B&P real estate an equitable charge for the benefit of holders of Certificates of Contingent Beneficiary Interest (CCBI’s), issued pursuant to the Plan. By preventing the distribution, appellant hopes to reach funds remaining from the recent sale of certain former B&P real estate by the Reorganization Trustees of the Penn Central Transportation Company to the Commonwealth of Massachusetts and the Massachusetts Bay Transport Authority, to the extent that the Debtor’s Expense Fund of approximately $600,000, established by the Plan, is insufficient to meet appellant’s claims for compensation and expenses.

The district court denied and dismissed appellant’s motion for a preliminary injunction against the distribution of funds by the Charge Trustee, and permanently enjoined him from interfering with the Charge Trustee’s receipt and distribution of the proceeds of the sale of the real estate. The district court also assessed attorney’s fees against appellant, for his “vexatious and groundless motion”. Appellant has moved for summary reversal and vacation of the judgment. The Charge Trustee and-Dumaines, a voluntary association holding a large number of CCBI’s, have moved for affirmance and summary dismissal.

The district court’s denial of appellant’s motion for a preliminary injunction was based both upon a determination that appellant was unlikely to prevail on the merits of his claim for compensation and expenses, above and beyond the amount held in the expense fund by the B&P Trustees, and upon a balancing of harms.

Appellant, having been paid $90,000 for his services in connection with the Plan covering the years 1954-1966, has submitted two additional claims, one for $150,000 for the years 1966-1971 and a claim for $453,000, based on the “success factor” of his effort to obtain inclusion in the Plan of the CCBI’s — which, reflecting the appreciating value of B&P’s real estate, have multiplied severalfold in value. This claim relates to services performed before 1966. A third type of claim, urged before us but not in the district court, is that for promotional services in the nature of trying to bring about a sale of some of B&P’s real estate to the Commonwealth of Massachusetts and the. Massachusetts Bay Transportation Authority, which sale occurred in 1973, in the sum of $12,000,00o. Appellant characterizes this as an equitable charge within the principle of Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). This claim is not liquidated in amount and, insofar as it relates to services performed between 1966 and 1971, is apparently a component of the $150,000 claim. To the extent that there is a claim for such services post-1971, the record before us is silent.

In any case, since appellant’s liquidated claims alone exceed the Debtor’s Expense Fund, and other expenses are also being paid from the Fund, appellant seeks to hold up final distribution by the Charge Trustee of the $682,909 until his claims are finally adjudicatéd. It is the position of the Charge Trustee, Du-maines, and the Penn Central Trustees that appellant lacks a valid claim but that even if he had one, he could look only to the Debtor’s Expense Fund.

We deal with the latter contention first. We see no need to delve back into this thirty-five year old litigation beyond our prior opinion on appeal from confirmation of the Plan, In the Matter of Boston & Providence R. Corp., 413 F.2d 137 (1969). When we were considering that appeal, there was some doubt whether the Plan’s provision of $550,000 for expenses of reorganization was to cover all expenses, past and future. Since the Interstate Commerce Commission (Commission) had already approved over $500,000 in allowances for the period ending June 30, 1966, the problem of adequacy of the Fund was real. We requested comment from the Commission and noted in our opinion that the Commission had “ruled that the pertinent section of the plan does not impose a maximum limit on the amount of the administration claims but governs the amount to be kept available at the time of consummation of the plan.” 413 F.2d at 140.

In other words, claims already approved would not be charged to the Fund, and the full $550,000 would be available for all future allowances. Appellant views our language differently, concluding that, in his words, the Fund would be “unlimited”. By this we understand him to mean that the Fund would be replenished after paying each future allowance so that it would be kept at a $550,000 figure until the last fee was paid. We have difficulty in seeing how the limiting words “at the time of consummation” can be reconciled with openendness. If, however, there was room left for doubt by our language, we see no room whatsoever after the district court’s unappealed “Consummation Order and Final Decree”, dated February 23, 1971, which directed, in Section V, that $550,000 be set aside for claims not paid prior to consummation, and reserved jurisdiction to make allowances of compensation for services “heretofore or hereafter rendered . . . out of said fund of $550,000.” The date of consummation was April 20, 1971. Appellant, in asserting the legitimacy of his claim to go beyond the Fund, has not mentioned in his brief or affidavits the significance of this provision.

This leaves appellant’s theory, if not yet a claim, of an equitable charge for promotional services, for the years 1966-1971 to the extent left open by the Commission for pursuit elsewhere than against the Debtor’s Expense Fund, and for the years subsequent to 1971. While Ticonic, supra, did recognize the merit of awarding legal fees for counsel whose efforts benefitted others than his client, it was dealing with the familiar field of litigation. What obstacles there may be for one who, though a lawyer, claims compensation for unbargained for promotional services of the kind alluded to by appellant we do not know. We are not at this juncture so confident that we can say that he has demonstrated a probability of success.

The district court, therefore, was clearly within its discretion in deeming that appellant had shown little likelihood of success in establishing .a claim to assets in the hands of the Charge Trustee, should the Debtor’s Expense Fund be found insufficient for claims chargeable to it. Another aspect of “success on the merits” is the substantiality of appellant’s claims themselves, which we now address briefly.

The $150,000 claim for services rendered between 1966 and 1971 was denied by the Commission on February 4, 1974 (Finance Docket No. 12131, Served February 28, 1974), with the comment that appellant’s efforts for the 1966-1971 period had “failed to produce any definable benefit to the estate”. (Slip op. p. 871.) Appellant’s objections to this report are yet to be heard by the district court, but, in the face of an adverse Commission report, he cannot be said to have demonstrated a probability of success. Even if he were successful, however, the Debtor’s Expense Fund could honor this claim.

The $453,000 claim for pre-July 1, 1966 services attributable to the “success factor” was denied by the Commission on October 5, 1973 (Finance Docket No. 12131, Served October 16, 1973). The Commission stated (slip op. p. 2): “[W]e are convinced that the maximum limit of the final allowance for the services performed before July 1, 1966, constitutes reasonable compensation for all services rendered and particularly for the contribution of the Development Group counsel [including appellant] to the formulation and adoption of the concept of CCBI in the B&P reorganization plan.” Appellant has moved for reconsideration of this order, but so we have been informed by counsel since argument before us, the motion has since been denied on June 6, 1974. Again, we cannot say the district court abused its discretion in concluding that appellant had not shown a probability of success.

Nor can we say that the district court abused its discretion in concluding that the alleged harm to appellant will exceed the harm to CCBI holders if injunctive relief were denied. Appellant maintains that distribution of the net undistributed proceeds from the sale of the B&P real estate would make it difficult for him to recover any valid claims which exceeded the expense fund, and that-, in the alternative, the B&P shareholders would suffer no irreparable harm if distribtuion were enjoined pending the outcome of his claims. But, as we have noted, assuming appellant’s claims were strong ones, there remains a balance in the Debtor’s Expense Fund, and remaining B&P real estate yet to be sold. Under the' circumstances, the inconvenience of pursuing distributed funds, rather than funds as yet undistributed by the Charge Trustee, is not necessarily a harm sufficiently “irreparable” to warrant relief. Withholding distribution until all of appellant’s claims could be put to rest (within a controversy that has, in broadest outline, already dragged on for over thirty-five years) may well be a prospect sufficiently harmful that it outweighs any inconvenience which might fall upon appellant. Again, we find that it was well within the discretion of the district court to balance the harms in this manner.

Our judgment with regard to the district court’s order barring appellant from pursuing claims against the Charge Trustee is guided by the same criteria. Appellant argues that this order “effectively forecloses” his ability to collect any fee which might ultimately be awarded by the court, but he neglects to indicate precisely why the order has such a drastic result. It might well be “logical” for the Charge Trustee to pay the fee, as appellant later states. It may also be true that, once distribution is made, appellant can no longer be “assured” that all of his fees will be collectible. But it seems clear that distribution would not, of itself, moot the case, since appellant is not prevented from pursuing the distributed proceeds. Again, the balance of harms is not so clearly on the side of appellant that the court abused its discretion by enjoining appellant from interfering with the Charge Trustee’s receipt and distribution, under the Indenture of the proceeds of the former B&P real estate.

We turn now to the district court’s action in awarding $13,669.79 in attorney’s fees and expenses in defending against appellant’s efforts to obtain injunctive relief. Such a sanction should be imposed only when a party has acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973). We are all too aware of the harvest of exacerbation which hoary litigation reaps. We are aware also of the district court having restrained itself from awarding fees in 1968. And we have carefully reviewed the affidavits of former counsel for appellant, reputable and respected attorneys, who advised appellant as to this last bout. But we are one step removed from the stress of this litigation. We would find abuse of discretion only if we saw no reasonable ground on which the court could rest a finding of vexa-tiousness. We cannot so find, not solely because of the wording in our own prior opinion, but more particularly because of the clear import of the Consummation Order and Final Decree.

Our concern increases, however, as we view the amounts of the several awards. The district court on January 25, 1974 directed counsel to submit an estimate of “costs”. Three affidavits were submitted. One was from counsel for the Dumaines, reporting 68 hours of time for two partners and an associate and $794.30 in expenses. No allocation of time at the varying rates applicable to senior counsel, a partner, and an associate was made. The court awarded only the amount noted as expenses. A second affidavit was received from special counsel to the Penn Central Trustees, giving no estimate of time but requesting a fee of $3,325 and expenses of $149.77. The court awarded $3,474.74. A third affidavit was filed by counsel for the Charge Trustee, requesting that any payment be made to the Penn Central Trustees, who were obligated to pay the expenses of the Charge Trustee. This affidavit reported the services of the senior partners, two partners, two associates, with assistance from one or more para-legal employees for 260.50 hours of lawyers’ time, amounting to a bill of $13,200 for services and $195.05 for reimbursement of expenses. The court awarded $10,195.05.

We may overlook the discrepancy between the court’s original call for “costs” since its allowance of some fees may be said to indicate its intent. But each application may be subjected.to particular comments, the sum total of which gives us pause. That of Dumaines gave no basis for a computation of fee, resulting only in an award for expenses, leaving 68 claimed hours, at varying rates, uncompensated. That for the special counsel of Penn Central gave no indication of time spent, although, we observe, its brief before the district court was the most helpful in our review. That for the Charge Trustee was facially sufficient. Our only problem is that, as we have already noted, its brief (both here and in the district court) was not helpful on the fee ceiling issue and we cannot comprehend the use to which the equivalent of six or seven weeks’ work for a lawyer was put. Appellant has a point: if his claims were so frivolous, why all the fuss ?

We see no way in which we can properly restructure the situation. If fees are to be awarded, the total should be a fraction of the total allowed below, with more detailed analysis of time invested as compared with helpfulness to the court. We affirm the award as to expenses in all cases and leave the future determination of fees, if applications therefor are submitted within thirty days following issue of mandate, to the district court.

Affirmed under local rule 12 except as to the award of counsel fees, as to which the case is remanded for further proceedings in accordance with this opinion.

      . After the closing, $10,500,000 was distributed to the OCBI holders by Penn Central Trustees, who had succeeded the B&P Trustee in the title to the real estate. After deducting allowable expenses, the sum of $682,909.27 was paid the Charge Trustee. It is this sum which is the object of appellant’s injunctive efforts.

      . By the same token, we have equal difficulty in understanding the Charge Trustee’s argument that our language should be discarded as “obiter dicta”. The appellees in the 1969 appeal had interpreted the Plan in substantially the same way as did we, i.e., “The fund of $550,000[,] which will not be created until consummation, is not to be charged with allowances paid prior thereto.” The Charge Trustee, appointed in 1971, may not have known of this background, but subsequent hearings evidenced the understanding of the B&P Trustees and others that indeed our opinion, dicta or not, had expanded the availability of the Fund for fees and expense reimbursement, although not to the extent claimed by appellant.

      . The Commission, in appellant’s claim for compensation for services prior to July 1, 1966, had increased the allowance from the $70,000 recommended by the Hearing Examiner, to $90,000.

      . What we have held disposes of the motion of Joseph B. Hyman to join in appellant’s motion to show cause and the Development Groups adoption of appellant’s motion nunc pro tunc, both submitted after the court’s decision of January 25, 1974. We construe the district court to have denied both such attempts to intervene. Our disposition of appellant’s claims, identical with theirs, renders harmless the denial of intervention.