author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Herman JACKSON et al., Defendants-Appellants.
    Nos. 72-1653, 72-1792 and 72-1793.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted April 9, 1973.
    Decided July 23, 1973.
    Rehearing Denied in Nos. 72-1792 and 72-1793 Aug. 21, 1973.
    Rehearing Denied in No. 72-1653 Aug. 31, 1973.

      Walter L. Gerash and Louis M. Fischer, Denver, Colo., for defendant-appellant Jackson.
    Richard H. Duke, Denver, Colo., for defendants-appellants Price and Gainous.
    Paul D. Cooper, Asst. U. S. Atty., (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appel-lee.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   HILL, Circuit Judge.

Appellants Jackson, Price and Gainous, together with one Series, were indicted on two counts of smuggling heroin into the United States. The first count charged the illegal importation or aiding and abetting in the importation of heroin into the United States. The second, count charged them with conspiracy in commission of the above stated offense. A jury convicted appellants Jackson and Price of Count One and all three appellants of Count Two. The defendant Series previously entered a plea of guilty to the indictment.

The attempted smuggling was first observed at U-Tapao Airfield, Thailand. Upon reaching Travis Air Force Base, California, customs authorities opened the smuggled package and discovered over 7800 grams of 85 percent pure heroin hidden inside. The package was then sent to its destination point, Lowry Air Force Base, Colorado, where powdered soap was substituted for most of the heroin. Finally it was placed in the appropriate warehouse until picked up by unknown persons on January 11, 1972. Subsequently four persons were arrested, three of whom are appellants in this case.

Series was the prosecution’s chief witness. His testimony is crucial to the government’s case and thus will be recited extensively. While stationed at U-Tapao Airfield, Series became friends with Johnny Trice. These two men discussed shipping contraband into the United States on military flights, but as Trice was later transferred to Tinker Air Force Base, Oklahoma, the discussions went no further.

In June or July, 1971, Series suggested to appellant Jackson that he knew a way to ship goods into the United States. Jackson’s reply was “stay cool” and contact him later. Their next visit was in September, when Jackson contacted Series. He handed Serles a paper containing instructions for shipping cargo to Tinker Air Force Base, and questioned him on his understanding of the instructions. Convinced that Series understood shipping procedures, Jackson suggested they meet again later in the day at Jackson’s “American Star Bar.” When they met later that day, the conversation centered on shipping goods to the United States on military cargo flights. Jackson stated he would like to ship a package weighing over seven kilos and worth more than its weight in gold. Jackson promised the package would be packed airtight to prevent discovery by dogs, and if Series would help out he would be paid $15,000 for his efforts. Series accepted the offer but first wanted to ship a test package to discern whether it would pass customs inspection.

The following night Series met Andrew Price at Jackson’s tavern. Price assured Series that Jackson had told him everything, so it was all right to proceed with the planning. At the end of their conversation Series was given $300 in Thai money to bribe Thai workers loading the military cargo.

In the latter part of September Series and Price began executing the plan. They picked up the test package from Jackson’s house. Series then typed up false shipping documents to be sent with the package. This package was delivered to a Thai national at Dong Muong Airfield outside Bangkok. From there it was flown to U-Tapao where another Thai worker forwarded it to Tinker Air Force Base.

At this point we shift to Trice’s testimony. Trice testified he informed appellant Gainous of the discussion with Series concerning smuggling goods into the United States. Later Gainous suggested Trice visit the “big man” at Jackson’s tavern, but Trice declined. When Trice was back in the United States on a thirty-day leave, Gainous contacted him by telephone and suggested he come to a party in the south. All expenses would be paid if Trice would make the trip, but ultimately Trice decided not to go.

After his leave, Trice was stationed at Tinker Air Force Base. In August Gainous journeyed to Tinker for the purpose of offering Trice $10,000 to pick up a package sent from Thailand. Gainous also wrote down shipping instructions to aid Trice in identifying the package and urged him to write Series concerning the shipment. In the early part of October Gainous sent Trice more instructions by special delivery. He also met with Trice to find out the best method for shipping a package from Thailand to Tinker.

It was during this time that Series sent the test package to Tinker. Because Trice did not pick up the package, Gainous visited him again, this time to offer him $15,000 to go along with the scheme. Apparently all plans concerning Trice were thereafter discarded, as the next time Gainous contacted him was in January, 1972. This call was to inform Trice that Series had been picked up for questioning. Trice was cautioned to “be cool” and only tell the authorities that he had known Gainous since 1966.

Serles’ testimony explains the rest. Because the first test shipment was not picked up, all parties were told to “freeze.” Only in December, 1971, did they proceed with their original plans. A second test package was shipped, this time to Lowry Air Force Base. Price instructed Series on how to send this package and gave him another $300 to pay the Thai workers. Once again the package made it through customs inspection, but once again it was not picked up at its destination point. Nevertheless, on December 24 or 25, Price and Series completed the smuggling scheme. Series typed up false shipping documents from information supplied by Price. The real package was then picked up at Jackson’s house and delivered to Thai workers who forwarded it to Lowry Air Force Base. As mentioned earlier, appellants and Series were arrested for the attempted smuggling and subsequently convicted.

On appeal Jackson and Price contend there is insufficient evidence to support a conviction for illegally importing heroin. Jackson asserts there is no proof he participated in the smuggling. Admittedly he talked to Series about shipping something “across the water” but the conversation went no further. Jackson’s position is the prosecution failed to link him with either possession or transportation of the heroin package.

Price argues he and Series never discussed narcotics, so any testimony by Series concerning narcotics was mere conjecture. Price’s position is that Series admitted pictures taken at Travis of the smuggled box showed it to have been altered; since the package disappeared at U-Tapao Airfield for several days before being delivered to Travis, the chain of evidence as to the package’s contents is -broken.

The standard of evidentiary review in criminal cases is well settled. The evidence “must be viewed in the light most favorable to the government to ascertain if there is sufficient evidence, direct and circumstantial, together with the reasonable inferences to be drawn therefrom, from which the jury may find the defendant guilty beyond a reasonable doubt.” United States v. Butler, 446 F.2d 975, 978 (10th Cir. 1971). The record indicates Jackson told Series he wanted to ship something back to the United States weighing more than seven kilos and worth more than its weight in gold. What eventually was sent did weigh over seven kilos and was reportedly worth $10,000,000. Jackson handed Series instructions for shipping a package to Tinker Air Force Base. At approximately the same time Jackson talked to Series, Gainous asked Trice to pick up a package destined to Tinker from Thailand. Jackson offered Series $15,000 to send a package to the United States and promised the contents would be packed airtight to prevent discovery by police dogs. Jackson played an important part in other aspects as well. Price mentioned Jackson in his conversations with Series. Jackson’s bar was the focal point for much of the operations; it was there where Price and Series first met. Gainous suggested to Trice that he meet the “Big Man” at Jackson’s tavern. Series was told to meet Jackson at the tavern on the night Jackson offered him $15,000. Jackson’s house also entered the picture. It was there where Price picked up the first test package and where Price and Series picked up the real package.

The evidence against Price is also convincing. Series testified that Price was the one with whom he had the most dealings. Price gave Series the money to pay off the Thai workers. Price informed Series when and where the shipments were to be sent. It was Price who delivered the packages and gave Series the necessary shipping documents. Series testified the heroin package reaching Travis Air Force Base was the one he received from Price.

It is evident there is substantial evidence to convict Jackson and Price. What counsel asks is that we hold Series’ and Trice’s testimony insufficient to warrant a conviction; but this we cannot do because the weight to be given testimony is a function of the jury rather than of the appellate court. United States v. Frazier, 434 F.2d 238 (10th Cir. 1970). Admittedly much of the evidence linking Jackson and Price to the smuggling attempt was circumstantial, but as we have mentioned before, the evidence supporting guilt may be circumstantial. United States v. Henry, 468 F.2d 892 (10th Cir. 1972). The evidence need not conclusively exclude every other reasonable hypothesis nor must it negative all possibilities except guilt. United States v. Henry, supra; Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969), cert. denied sub nom., 396 U.S. 933, 90 S.Ct. 276, 24 L.Ed.2d 232. Under our standard of review, we therefore must conclude the evidence was sufficient to warrant appellants’ convictions.

The next argument proffered concerns the conspiracy convictions of all three appellants. It is alleged there has been insufficient evidence to conclude that appellants agreed to violate the federal narcotics laws; at best the government has merely shown several independent, unrelated conspiracies. Once again we must give deference to the jury’s decision if the conduct, acts and circumstances are such that minds of reasonable men might conclude therefrom the existence of an unlawful agreement. Jones v. United States, 251 F.2d 288 (10th Cir. 1958), cert. denied, 356 U.S. 919, 78 S.Ct. 703, 2 L.Ed.2d 715.

It is not essential that each conspirator have knowledge of all the activities of the conspirators nor must each participate in all the activities in furtherance of the conspiracy. McManaman v. United States, 327 F.2d 21 (10th Cir. 1964), cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307. If the conspiracy is established and the convicted persons knowingly contributed their efforts in furtherance of it, then the convictions must stand. Young v. United States, 168 F.2d 242 (10th Cir. 1948), cert. denied, 334 U.S. 859, 68 S.Ct. 1534, 92 L.Ed. 1780.

The evidence, viewed in the light most favorable to the government, reveals that Jackson and Series met on two occasions to discuss shipping contraband into the United States. Jackson offered Series $15,000 to participate in the smuggling venture. Price mentioned Jackson in his conversations with Series and picked up the contraband package from Jackson’s house. Gainous suggested that Trice meet the “big man” at Jackson’s tavern, just as Jackson had told Series to meet him there. Gainous offered Trice the same amount of money to pick up the heroin package that Jackson offered Series to send it. Gainous, through some channel of communication, knew of Series’ arrest two days after it occurred. Shortly before Jackson and Gainous were arrested they were seen together in Jackson’s trailer home in Goldsboro, North Carolina.

Conspiracy by nature involves secrecy and thus the proof to support a conviction is necessarily indirect. The elements of the crime may be established by circumstantial evidence and the common purpose inferred from the development or combination of circumstances. Jordan v. United States, 370 F.2d 126 (10th Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595 (1967); Baker v. United States, 329 F.2d 786 (10th Cir. 1964), cert. denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56; United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir. 1972); United States v. Padilla, 374 F.2d 996 (2d Cir. 1967). The appellants’ uniform actions indicate there was a mutual agreement to commit an illegal act. From these facts a jury might rationally infer that appellants jointly conspired to violate the narcotics laws.

Gainous argues the court erred in failing to instruct the jury on multiple conspiracies. His position is the jury should have been told that possibly more than one conspiracy existed so they could decide whether Gainous’ conduct was totally unrelated to the aborted smuggling attempt. We find no merit in this argument. The court carefully explained to the jury what constitutes a conspiracy. It was emphasized that not only must there be a willful conspiring together of two or more persons to commit an offense against the United States, but the offense is complete only if it appears from the evidence that any one of the overt acts alleged in the indictment is committed for the purpose of effecting the crime. The instructions further state: “Mere similarity of conduct among various persons and the fact that they may have associated with each other and may have assembled together and discussed common names and interests does not necessarily establish proof of the existence of a conspiracy.” At conclusion of instructing the jury, the trial court asked counsel for Gainous if he objected to the instructions as they were given. Counsel replied in the negative. As a specific objection now urged for the first time, it is untimely. Aside from the issue of timeliness, however, we find no error in the court’s conspiracy instructions. The trial court’s function is to instruct on the general principles of the law of the case. It is not obligated to outline all possible factual situations which would fail to show one’s connection with a conspiracy. Jones v. United States, supra; Butler v. United States, 197 F.2d 561 (10th Cir. 1952). The trial court’s instructions clearly set out the elements of a conspiracy, and we can find no error in the manner they were given.

Jackson next argues the trial court erred in admitting exhibits 8 through 13 without giving adequate limiting instructions concerning their consideration. Exhibit 8 is a document Series testified he prepared according to directions given by Price. The court admitted the exhibit with the cautionary instruction to the jury: “The Exhibit 8 is received and admitted and may be considered by the jury to the extent that Mr. Series’ testimony that the writing thereon is his. Otherwise it’s excluded.” Exhibits 9 through 13 are photographs of the box given Series by Price. The trial court also gave limiting instructions on those. Jackson’s position is chat Exhibits 8 through 13 impermissi-bly stigmatize him. Because Price did not testify, counsel for Jackson could not remove this stigma through cross-examination ; thus it was up to the trial court to either exclude the exhibits or properly instruct the jury as to their irrelevancy to Jackson. Counsel argues the court’s instructions were insufficient to protect his client’s constitutional rights. Supporting his argument he cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), where two defendants were jointly tried on a charge of armed postal robbery. In Bruton, defendant Evans did not take the stand, but a postal inspector testified that Evans had confessed that he and defendant Bruton committed the robbery. The jury was instructed to disregard the inspector’s testimony relating to Bruton because it was inadmissible hearsay. At the trial’s conclusion the jury found both defendants guilty. On appeal to the Supreme Court, Bru-ton’s counsel argued the postal inspector’s testimony relating to Evans’ confession violated Bruton’s Sixth Amendment right to confrontation. The Court accepted this argument and held that because Evans did not testify the admission of his confession added substantial weight to the prosecution’s case in a manner not subject to cross-examination. Although the jury was admonished to disregard Evans’ confession as it related to Bruton, this limiting instruction was insufficient to remedy the encroachment on Bruton’s Sixth Amendment rights.

We do not believe Bruton applies in this case, for in Bruton a co-defendant testified to the other defendant’s guilt. Exhibits 8 through 13 in the present case might implicate Price, but nowhere do the exhibits indicate that Price’s acts or statements inculpate Jackson. There was no violation of Jackson’s right to cross-examine by allowing the exhibits to be admitted as evidence. As the Court stressed in Bruton, the reason limiting instructions were not adequate was because a jury, in determining Bruton’s guilt, probably could not forget defendant Evans’ confession. Exhibits 8 through 13 can in no way be considered so powerfully incriminating to Jackson that limiting instructions would not sufficiently protect his rights. The trial court, as stated above, instructed the jury at the time exhibits 8 through 13 were admitted that their admissibility was limited to Price. The trial court during his closing instructions again warned the jury not to accept acts or statements made out of court by one person against another if the other person was not present to hear the statement or see the act done. We find these limiting instructions adequately protected Jackson’s constitutional rights and thus find no error in admission of the exhibits. Lowther v. United States, 455 F.2d 657 (10th Cir. 1972), cert. denied, 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102; United States ex rel. Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818; White v. United States, 415 F.2d 292 (5th Cir. 1969), cert. denied, 397 U.S. 993, 90 S.Ct. 1128, 25 L.Ed.2d 400.

Gainous contends exhibit 36 is the fruit of an illegal search and should not have been admitted. Exhibit 36 is a document containing written instructions for shipping goods to Tinker Air Force Base. The document was found in Gainous’ billfold during the search of his home. Although the search warrant was valid, Gainous argues the warrant did not extend to searching the billfold since it was brought to the house by treasury authorities. Apparently Gainous was arrested while on alert call with the Strategic Air Command, Seymour Johnsen Air Force Base, North Carolina. Rather than living at home while on alert, Gainous stayed in military quarters near the alert area. After his arrest the commanding officer ordered his personal effects be removed from the military quarters. They were turned over to the Office of Special Investigation, which in turn handed them to treasury agents. Ultimately these personal effects were taken to Gainous’ house and searched under the auspices of a valid search warrant.

Even if we assume it was error to admit exhibit 36, Gainous still has the burden of showing that its admission was prejudicial. See Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). An error possibly prejudicial in a close case does not require reversal if the evidence of defendant’s guilt is strong. Jennings v. United States, 364 F.2d 513 (10th Cir. 1966), cert. denied, 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677 (1967); Fed.Rules Crim.Proc., 18 U.S.C. Rule 52(a). Without exhibit 36 the evidence against Gainous is still strong and substantial. Considering the record as a whole, we are unable to say Gainous was prejudiced by admission of exhibit 36.

Appellants next argue the trial court erred in failing to order a mistrial after it had commented on the truthfulness of Series. Jackson’s counsel during cross-examination asked Series if he knew what was in the last box given him by Price. The court, in referring to Series’ reply that he did not know what the box contained, stated that apparently Series was trying to tell the truth. Counsel objected to this comment as an invasion of the jury’s province. In response to this objection the trial court unequivocally instructed the jury that they were the sole judges of the witnesses’ credibility and thus they were not bound by the court’s comment. We do not find the isolated comment so unfair as to deny appellants a fair trial. The trial was fairly conducted, and if it could be concluded that any unfairness resulted from the comment, such unfairness was sufficiently removed by the trial court’s instructions. United States v. Cunningham, 423 F.2d 1269 (4th Cir. 1970) .

In connection with the above argument Jackson contends the court erred in restricting cross-examination of Series on three occasions. The first alleged error occurred when the court prevented counsel from inquiring into conversations between Series and his supervisor, John Wickes, in August or September, 1971, concerning the shipment of contraband. The second restriction occurred when the court made its comment about Series’ “truthfulness,” and the final restriction occurred when the court prohibited counsel from attacking Series’ credibility with respect to his knowledge of heroin.

The right of confrontation extends to areas of cross-examination. Limiting cross-examination in areas which are properly subject to cross-examination does constitute reversible error. See Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). This rule usually applies, however, when the limitation is a complete denial of access to an area which is properly the subject of cross-examination. United States v. Jorgenson, 451 F.2d 516 (10th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972). In the present case, Jackson’s counsel was not denied access to any area properly subject to cross-examination. His objection goes to the extent of cross-examination allowed by the court; and as we have held on other occasions, the extent of cross-examination is discretionary with the trial judge. United States v. Jorgenson, swpra; Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970). Such exercise of discretion should not be overruled unless we are convinced the court’s ruling is prejudicial. Foster v. United States, 282 F.2d 222 (10th Cir. 1960). After reviewing the whole record, we are convinced the trial court’s ruling did not prejudicially curtail Jackson’s right of cross-examination.

Appellants next attack the verdict as being founded on offenses that are duplicitous. It is their position proof of identical facts is required to support both counts of the indictment; thus the offenses constitute double jeopardy. As an offshoot of this argument, appellants claim error in sentencing consecutively on both counts when the same facts are necessary to prove both offenses. The double jeopardy clause does not bar a single trial for multiple offenses arising out of one transaction if each offense rests on different criminal elements. Smith v. Gaffney, 462 F.2d 663 (10th Cir. 1972). “When each offense requires proof of a fact not essential to the other, the charges are not identical and the accused can be charged, tried and convicted of both offenses even though the charges arise out of the same acts.” Goldsmith v. Cheney, 447 F.2d 624, 627 (10th Cir. 1971). The law is well settled that commission of a substantive offense and a conspiracy to commit it are separate crimes. The substantive offense of illegally importing heroin into the United States requires no more than one person for its commission. Similarly, aiding and abetting does not require an agreement, for these terms are employed to make the defendant a principal when he consciously shares in a criminal act regardless of the existence of a conspiracy. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). The essence of a conspiracy charge is an agreement to commit an offense against the United States. Whether Jackson and Price were convicted as principals or for aiding and abetting, it is clear their conviction does not rest on the agreement. Thus the offenses in Count One require proof not essential to the conspiracy conviction. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

It logically follows that consecutive sentences do not constitute double punishment, for the same crime. The test to determine identity of offenses is whether each count requires proof of a fact or element not required by the other. Doherty v. United States, 193 F.2d 487 (10th Cir. 1951). Identity of offenses turns on whether the same evidence is required to prove both offenses rather, than identity of evidence actually produced. “The fact that the acts constituting the substantive offense also may be pleaded and proven as acts done in furtherance of the conspiracy is not determinative of their identity.” Nolan v. United States, 423 F.2d 1031, 1048 (10th Cir. 1969), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970). Accordingly we find no error in the imposition of consecutive entences.

Appellants allege the trial court erred in refusing to orally reinstruct the jury after they requested the opportunity to review the instructions. Approximately forty minutes after the jury retired for its deliberations it sent a note to the court requesting an opportunity to review the instructions that had been given. The court, with no objection by counsel, sent back a note stating that instructions in federal court are oral, not written, and therefore their request was denied. We do not find the trial court’s refusal prejudicial error. The closing instructions were unequivocal; hence whether or not additional instructions should have been given is within the trial court’s discretion. The only time we will entertain an argument for reversal is when the trial court’s discretion has been clearly abused. Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970). No such abuse is apparent here.

Jackson next contends he was inadequately represented at trial. This contention is premised on his counsel’s failure to move for a change of venue or a continuance because of prejudicial publicity. Apparently there were newspaper articles and television scripts sensationalizing the smuggling attempt prior to and during the trial. Jackson asserts his trial counsel knew of the prejudicial publicity but made no effort to protect Jackson from it, and thus Jackson was deprived of effective counsel in violation of the Sixth Amendment. As we have previously said: “There is a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel. It is the denial of the right to have such assistance that gives the right to challenge a judgment of conviction. .” Hudspeth v. McDonald, 120 F.2d 962, 968 (10th Cir. 1941). Jackson was not denied the right to effective assistance of competent counsel. The record discloses Jackson’s trial counsel to have been extremely capable; nowhere does his conduct give rise to an inference of incompetence.

Nor does the unfavorable publicity deny appellants a fair trial. Admittedly the right to a fair and impartial trial supercedes any right to sensationalize and prejudicially publicize its collateral aspects, but unfavorable publicity does not of itself raise a presumption of prejudice. Dennis v. United States, 302 F.2d 5 (10th Cir. 1962), rev’d on other grounds, 384.U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Even with unfavorable publicity a fair trial may be obtained. Before we will reverse a conviction, the publicity must be so prejudicial as to constitute a denial of due process. Appellants correlate their situation to the one found in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), where the news media went so far as to publicly demand the conviction of Sheppard. We find little similarity between the two situations, for appellants’ exposure to unfavorable publicity did not reach the magnitude suffered by Sheppard. Nor is it apparent the jurors were prejudiced by the publicity since all trial counsel agreed to omit on voir dire examination any mention of the publicity. Considering the totality of circumstances, we find no due process violation stemming from the unfavorable publicity.

Appellants’ final argument is the federal district court of Colorado lacked proper venue to try this case. They assert the offense was completed in California where the smuggling attempt was first discovered. Supporting this argument appellants rely on United States v. Lember, 319 F.Supp. 249 (E.D.Va.1970), where a defendant was found to have completed the offense of smuggling marijuana at the moment his smuggled package arrived on United States’ soil and was opened by customs authorities. The trial court felt the offense was complete when first discovered and thus the case could not be tried in the district where the smuggled package was subsequently delivered.

We are aware Article 3, § 2, cl. 3 of the Constitution assures that criminal trials “shall be held in the State where the said Crimes shall have been committed.” We also realize that questions of venue are more than matters of procedure. “They raise deep issues of public policy in the light of which legislation must be construed.” United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944). The provision for trial in the vicinity of the crime protects accused against the hardship and unfairness incident to a trial conducted in a remote place.

Title 21 U.S.C. § 952(a), which prohibits importation of certain controlled substances into the United States unless otherwise statutorily allowed, does not specifically provide for the fixing of venue. Under such circumstances the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it. United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). Section 952(a) prohibits importation of heroin into the United States from any place outside thereof. The statute does not necessarily pertain to any particular locality such as the place of entry, for it prohibits importation anywhere in the United States. Appellants charge, however, the offense was completed the moment the smuggling attempt was discovered in California and thus does not continue to the smuggling attempt’s destination point in Colorado. Admittedly a crime was committed the moment the heroin package entered the United States, but discovery of the crime in California did not exhaust it. See United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910). The illicit scheme originated in Thailand and from there it extended to Lowry Air Force Base, Colorado. During the illicit venture the heroin was discovered in California but certainly the crime was not completed there. It was a continuous crime which received no finality until the package arrived at Lowry Air Force Base. Since an offense committed in more than one district “may be inquired of and prosecuted in any district which such offense was . . . continued,” 18 U.S.C. § 3237, venue for § 952(a) lies in any district used by appellants to complete their crime. See United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958). We therefore reject United States v. Lember, supra, in all respects inconsistent with our holding herein.

It necessarily follows that as the substantive crime was committed in Colorado, the crime for aiding and abetting may also be tried in that district. Congress has declared that an aider and abettor may be punished as a principal, and hence he may be punished in the same district as the principal. United States v. Kilpatrick, 458 F.2d 864 (7th Cir. 1972); United States v. Bozza, 365 F.2d 206 (2d Cir. 1966).

We should further note no objection was made to the case being tried in Colorado, and thus appellants waived their right to trial in another venue. Improper venue may be waived when it is apparent on the face of the indictment that the case should be tried elsewhere. The facts in this case convince us there was no reason for waiting until completion of the trial to raise the venue argument. Jenkins v. United States, 392 F.2d 303 (10th Cir. 1968); Hilderbrand v. United States, 304 F.2d 716 (10th Cir. 1962); Bickford v. Looney, 219 F.2d 555 (10th Cir. 1955).

Affirmed.

      . 21 U.S.C. § 952(a). It shall be unlawful to import heroin into the customs territory of the United States from any place outside thereof (but within the United States) or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subehapter I of this chapter or any narcotic drug in schedule III, IV or V of subchapter I of this chapter . . . . [It is stipulated that heroin is a schedule I controlled substance.] 18 U.S.C. § 2. Principals, (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 wilfully causes an act to be clone which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . 21 U.S.C. § 952(a).
      21 U.S.C. § 963 Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      . “Exhibits 9 through 13 will be admitted. Presently it appears that this box transaction was with Mr. Price and presently the jury is instructed to limit its consideration at this time to the charges against Mr. Price.”

      . § 3237(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may he inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.

      . 18 U.S.C. § 2.


source: Caselaw Access Project

author: PHILLIPS, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Richard SHULTZ, Defendant-Appellant.
    No. 72-2074.
    United States Court of Appeals, Sixth Circuit.
    Argued April 3, 1973.
    Decided July 11, 1973.

      Bruce S. Kramer, Memphis, Tenn., for defendant-appellant; Rosenfield, Borod, Bogatin & Kremer, Memphis, Tenn., of counsel.
    Glen Reid, Jr., Asst. U. S. Atty., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., W. D. Tenn., Memphis, Tenn., on brief.
    Before PHILLIPS, Chief Judge, and McCREE, Circuit Judge, and PRATT, District Judge.

       Honorable Philip Pratt, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.

   PHILLIPS, Chief Judge.

Shultz seeks a reversal of his conviction on a two count indictment. The jury found him guilty of a violation of the mail fraud statute, 18 U.S.C. § 1341, and of causing to have transported a counterfeit stereo tape cartridge recording in interstate commerce. 18 U.S.C. § 2318. Shultz attacks the sufficiency of the evidence on each count of the indictment and asserts that the mail fraud statute cannot be used to punish activities protected under the Copyright Act. Additionally, he claims reversible error in the admission of certain testimony and in comments by the District Judge. We affirm.

At the outset, we distinguish between counterfeit stereo tapes and so-called bootleg or pirated stereo tapes. Counterfeit tapes are tapes which are represented to be genuine articles of particular record companies when, in truth, they are not. The process includes reproducing the tape itself and also the recognized label of another record company. A bootleg tape is a reproduction of someone else’s recording or recordings marketed under a different label. The shipment of counterfeit tapes in interstate commerce is a federal crime. 18 U.S.C. § 2318. The shipment of bootleg tapes is not expressly classified as a federal crime. Several states, including Tennessee, T.C.A. §§ 39-4244-50, have enacted tape piracy statutes against bootleg tape production. It has been claimed that bootleg tapes are protected by the Copyright Act, which exempts musical compositions from its protection. This precise claim was rejected by the Supreme Court in an opinion announced after the briefing and argument of this case. Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973).

Shultz was indicted, along with two other individuals and a corporation, for producing counterfeit stereo tapes and, in particular, using the mails as an integral part of the scheme to defraud a Memphis wholesaler. He was also charged with having caused to be transported in interstate commerce a stereo tape cartridge with a counterfeit label affixed to it from Florida to Memphis. He received a three year sentence on the first count and six months on the second, the terms to run concurrently.

The first assertion of error is that there was insufficient evidence to convict on either count. In determining this issue we must view the evidence in the light most favorable to the Government in assessing whether there was sufficient evidence to convict the appellant. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Wages, 458 F.2d 1270 (6th Cir. 1972).

Essential elements of a violation of the mail fraud statute are 1) a scheme to defraud by means of false or fraudulent representations and 2) use of the mails in furtherance of that scheme. In the instant ease, Shultz was charged with devising a scheme to defraud a Memphis record wholesaler, James W. Crudgington, by selling him approximately 800 stereo tape cartridges. Shultz is alleged to have represented that these tapes were genuine Ampex tapes when, in truth, they were tapes of his own creation.

The record reveals evidence of the following: 1) Shultz had the labels on the tapes produced by an Ohio firm; 2) the labels in question' were made by taking photographs of legitimate album covers; 3) Shultz arranged for the tape sleeves, or packaging, to be made; 4) Shultz arranged for the transcription of the tapes from flat record albums and arranged for these tapes to have the labels placed on them; 5) Mr. Crudgington dealt with a man claiming to be “Bob Richards” from the National Tape Center in Dallas in arranging for the purchase of the tapes; 6) the tapes, in fact, were not produced by Ampex, as they were represented to be on the label; 7) “Bob Richards” told Mr. Crudgington that the tapes were legitimate; 8) Shultz used the name “Bob Richards” repeatedly in connection with this scheme; 9) Shultz had access to the telephone from which the offers to Mr. Crudgington took place and actually used this telephone for several calls; 10) the sale contemplated Mr. Crudgington’s mailing a check from Memphis to Dallas made out in the real name of Shultz and 11) the check was mailed and Shultz cashed it.

It should be noted that Mr. Crudgington reported the initial offer of the tapes to the F.B.I. and, thereafter, worked with the F.B.I. on the ease. The fact that he was not deceived by the tapes is irrelevant. The gist of the offense is the intent to defraud.

Shultz claims that there was testimony in the record that would indicate that another person, Allen Goldfield, actually made the deal with Mr. Crudgington and the representations about the tapes. While some of the testimony may so indicate, we find that there was sufficient credible testimony in the record to permit the jury to reach the conclusion that Shultz actually made the calls to Mr. Crudgington and made the representations of legitimacy concerning the tapes. The mailing of the check from Memphis to Dallas was expressly mentioned in the telephone call to Mr. Crudgington and was an explicit part of the scheme.

The incident which gives rise to the charge under § 2318 is the actual sending of the tapes involved. This was done by a man using the name R. Craig in a Florida air terminal. There was testimony that Shultz used the alias R. Craig in connection with the tape scheme and also direct testimony that the defendant actually shipped the tapes. We feel that this evidence, when combined with all of the evidence mentioned above, was sufficient to support a finding that Shultz at least caused the tapes to be shipped in interstate commerce, if he did not ship them himself.

We find that there was sufficient evidence under both counts to support a guilty verdict.

It is asserted that evidence was admitted, in two separate instances, which was unduly prejudicial and reversible error. The first area objected to was testimony by one of the co-defendants about a trip which the two defendants had made to New York City in the spring of 1970, one month before the shipment of tapes which is the subject of the present indictment. The co-defendant testified that during this trip Shultz told him, for the first time, that the tapes in question were counterfeit. The testimony also mentioned that during the trip Shultz was robbed and the co-defendant kidnapped for a short time in connection with the tapes. It is difficult to understand how testimony that Shultz had been robbed in New York City would be prejudicial to him in this case. In any event this incident was relevant to the issue of whether Shultz had criminal intent in regard to the tapes. It should be pointed out that at trial Shultz relied on advice he claimed to have received from an attorney one month after the New York trip that his activities in connection with the tapes constituted bootlegging and were legal. There was no abuse of discretion on the part of the District Court in the admission of the testimony concerning the New York trip.

The second asserted error in the admission of the evidence was the testimony by one of Shultz’ associates that he was afraid of Shultz because of his Mafia connections. This testimony was elicited on re-direct examination after the entire area of fear had been opened up and examined closely by defense counsel on cross-examination and after appropriate warnings by the District Judge.

We find that the mention of the word “Mafia” once by the witness on re-direct after the area had been opened up by the defense on cross-examination was not reversible error.

The appellant’s final claim is that a remark by the District Judge constituted an instruction that silence by the defendant was evidence of guilt.

Defense counsel did not offer an objection or request a curative instruction. The District Judge gave the instructions on the presumption of innocence and the fact that the law never imposes a duty to testify on the defendant nor does it permit any inference from the failure to testify. When read in context and in viewing the case as a whole, the error, if any, was harmless.

Affirmed.

      . 18 U.S.C. § 1341 reads as follows:
      “§ ISJfl. Frauds and swindles

      “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . 18 U.S.C. § 2318 reads as follows:
      “§ 2318. Transportation, sale, or receipt of phonograph records hearing forged or counterfeit labels

      “Whoever knowingly and with fraudulent intent transports, causes to be transported, receives, sells, or offers for sale in interstate or foreign commerce any phonograph record, disk, wire, tape, film, or other article on which sounds are recorded, to which or upon which is stamped, pasted, or affixed any forged or counterfeit label, knowing the label to have been falsely made, forged, or counterfeited, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony ROMANO and Stanley Yassen, Defendants-Appellants; UNITED STATES of America, Plaintiff-Appellee, v. Jack Riki LYNOTT, Defendant-Appellant.
    Nos. 72-3166, 72-3171.
    United States Court of Appeals, Fifth Circuit.
    Aug. 6, 1973.
    Rehearing Denied No. 72-3166 Aug. 31, 1973.
    Rehearing Denied No. 72-3171 Oct. 5, 1973.
    Stay Denied Oct. 23, 1973.
    See 94 S.Ct. 293.

      John A. Howard, Atlanta, Ga. (Court appointed), for Jack Riki Lynott.
    William J. Schloth, U. S. Atty., J. Reese Franklin, O. Hale Almand, Asst. U. S. Attys., Macon, Ga., for United States.
    E. Louis Adams, Albany, Ga. (Court appointed), for Michael Anthony Romano.
    Martin K. Leppo, Michael A. Paris, Boston, Mass., for Stanley Yassen.
    Before GOLDBERG, CLARK and RO-NEY, Circuit Judges.
   GOLDBERG, Circuit Judge:

Appellants, Jack Riki Lynott, Stanley Yassen, and Michael Anthony Romano, were tried before a jury and convicted on both counts of a two count indictment charging them with (1) violating the Dyer Act, 18 U.S.C. § 2312, by transporting a stolen automobile in interstate commerce while knowing it to have been stolen, and (2) violating the general conspiracy statute, 18 U.S.C. § 371, by conspiring to violate 18 U.S.C. § 1952 through a conspiracy to travel and cause travel in interstate commerce with intent to commit extortion in violation of the laws of Georgia. In this case appellants have conjured a potpourri of errors, all of which we have clinically mi-croscoped and diagnosed. Finding no infirmity, we affirm.

I. THE PROCEEDINGS BELOW

This case first came on for jury trial on Wednesday, September 20, 1972. After six witnesses had testified, the trial judge declared a mistrial because the prosecution had made an improper opening argument. When this case came on for a second trial, on Monday September 25, 1972, appellants moved to dismiss on the ground that they were being twice put in jeopardy. The district judge denied appellants’ motion, holding that there was no double jeopardy because the mistrial had been declared at appellants’ behest. The second trial was then held.

Viewed in the light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704, the evidence introduced at the second trial established that Oscar Stephens had been employed as a salesman in Marvin Aultman’s used car businesses in Albany and Sylvester, Georgia. Beginning in 1971, Stephens and Aultman received stolen automobiles from the Boston, Massachusetts area from appellant Stanley Yassen and others, and then sold these vehicles in various Georgia automobile auctions. Apparently, Stephens and Aultman were not as diligent in paying for the stolen automobiles as they were in selling them, for by September 1, 1971, they owed Yassen several thousand dollars for automobiles he had sent down to them. The failure of Stephens and Aultman to make prompt recompense for their ill-gotten inventory precipitated the events leading to appellants’ indictment and conviction.

Around September 1, 1971, appellants traveled to Albany, Georgia from Massachusetts in a green 1968 Pontiac Fire-bird that recently had been stolen in Quincy, Massachusetts. Appellants intended to collect the money owed by Stephens and Aultman to appellant Yassen, and in their efforts to collect this debt appellants resorted to some rather unorthodox collection practices — abduction and attempted extortion. On the evening of September 1, 1971, appellants Lynott and Yassen abducted Oscar Stephens at gunpoint from the parking lot behind his home. They drove for a short period of time, changed cars, and were joined by appellant Romano. Appellants then took Stephens to the Syl-cree Motel in East Dougherty, Georgia, where they attempted to extort payments from Stephens by threatening him and his family with bodily harm. During this time, appellants were also attempting to locate Marvin Aultman in the hope of extorting payments from him.

Stephens was permitted to contact his wife from the motel. He informed her that he had been taken in a green Fire-bird to the Sylcree Motel, where he was being held captive and in danger. Mrs. Stephens then contacted the family attorney, Fred E. Bartlett, Jr., and informed him of her husband’s plight. Attorney Bartlett contacted the Albany police department and relayed the contents of his conversation with Mrs. Stephens. He reported that Mr. Stephens had been abducted in connection with a transaction involving stolen cars and was being held at the Sylcree Motel by a group of men driving a green Firebird or Camaro. The Albany police then §on-tacted the county police, who verified that a green Firebird was parked outside the Sylcree Motel. The next morning the Albany police, acting both on the information received from Bartlett and on supporting information supplied by the county police and the FBI, arrested appellants for kidnapping when they drove through Albany, Georgia, with Stephens. Appellants were held in state custody for fifteen days until the state grand jury declined to indict them for kidnapping. Thereafter, on September 17, 1971, appellants were arrested by the FBI for violating 18 U.S.C. § 2312.

After a four day jury trial, at which the jury heard and considered all of the evidence concerning the foregoing events, the jury found appellants guilty of (1) violating the Dyer Act, 18 U.S.C. § 2312, by knowingly transporting a stolen vehicle in interstate commerce, and (2) violating 18 U.S.C. § 371 by conspiring to travel and cause travel in interstate commerce with intent to commit extortion in violation of the laws of Georgia.

In this appeal appellants jointly attack their convictions, raising numerous points that we will deal with seriatim.

II. DOUBLE JEOPARDY

Appellants contend that their second trial violated the double jeopardy clause of the Fifth Amendment because the mistrial at the first trial was declared as a result of prosecutorial misconduct and for the benefit of the prosecution. However, a factual analysis of the events surrounding the declaration of a mistrial establishes that the mistrial was declared at appellants’ behest and thus that appellants’ arguments are without merit.

In its opening remarks to the jury the prosecution stated: “So the evidence will show the motive behind this extortion which is involved in this second count was that there was some nine other stolen cars involved beside this one. .” Appellant Yassen then moved for a mistrial on the ground that the indictment only mentioned one stolen automobile. At this point, the trial judge denied the motion.

The prosecution then continued its opening statement, saying that although the evidence would show that nine other stolen cars were involved in the case, the government expected to actually prove the theft of only three of the cars. After six witnesses had testified on the first day of the trial, it became apparent that the government was not going to prove that all nine vehicles were stolen. The trial judge then stopped the proceedings saying:

“[T]he Court, during the day, has been researching the question of whether or not a mistrial should be granted on the remarks of the prosecuting attorney that he could prove there were nine stolen cars but was only going to establish proof that there were three, and it is the judgment of this Court that the United States has two options. It may elect to present evidence on all nine automobiles or the Court will declare a mistrial.”

The government, having already admitted that it was unprepared to prove the theft of all nine vehicles, did not contest the granting of a mistrial.

Although appellants now argue that the mistrial was declared sua sponte by the court at the election of the government and for the government’s benefit, it is clear that this is not the case. None of the defendants objected in any way to the court’s declaration of a mistrial. In fact, when counsel for appellant Yassen, who has been acknowledged to be appellants’ lead counsel at the trial, attempted to get the court to put off the retrial, he showed his awareness that the mistrial was being declared pursuant to his motion. He stated:

“Well, I think, if Your Honor please, although I felt that I had good grounds for a mistrial, and I think Your Honor realizes that after your clerk has perused the law. . . .”

Moreover, in denying appellants’ motion to dismiss on the grounds of double jeopardy, the district judge stated his-reasons for declaring the mistrial:

“[T]he basic reason for the granting of a mistrial in this case was the fact that a motion for a mistrial was made by the defendants at the time that the prosecutor in his opening statement made the statement that is in the record, that regardless of the fact that the court, in ruling on the motion, put it in the alternative, that is, by telling the United States that the United States would have to prove the theft of nine automobiles or the court would grant a mistrial, it was obvious to the court at that time that the United States was not prepared to prove nine automobiles. The prosecuting attorney had so stated, the United States did not have witnesses for nine automobiles stolen in Massachusetts. So that alternative was obviously an empty gesture.
“. .So it is the Court’s view of the motion . . . that this motion was properly granted and on account of it having been initiated by the defendant in the case. . . .”

It is thus apparent that the mistrial was granted at the behest of appellants, on their behalf, and because of the prosecutor’s inadvertent prejudicial opening remarks. The law is well established that

“where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by defendants for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.”

United States v. Jorn, 1971, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (footnotes omitted) (emphasis added). Appellants’ claim that their retrial was barred by double jeopardy, therefore must fall. See United States v. Iacovetti, 5 Cir. 1972, 466 F.2d 1147, 1152, cert. denied, 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270 (1973); United States v. Lansdown, 4 Cir. 1972, 460 F.2d 164, 171 n. 8; United States v. Henderson, 1970, 142 U.S.App.D.C. 21, 439 F.2d 531, 532; Gregory v. United States, 1969, 133 U.S.App.D.C. 317, 410 F.2d 1016, 1018, cert. denied, 1969, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119.

III. THE MOTIONS TO SUPPRESS

Prior to trial, appellants moved in the district court to suppress evidence seized at the time of their arrest on the grounds that (1) the arresting officers did not have probable cause to make a warrantless arrest, and (2) Rule 5(a) of the Federal Rules of Criminal Procedure had been violated by the failure of the government to bring appellants before a federal magistrate until fifteen days after their arrest. The district court denied appellants’ motions, finding:

“[I]t would appear that this arrest took place on the part of the police officers of the City of Albany, within the city limits of Albany, Georgia and that these police officers had more than probable cause to arrest whoever it was that was allegedly holding Oscar Stephens, a citizen of Albany, Georgia, against his will, which was the information relayed to these officers. The officers had not been furnished with the names of any alleged kidnappers or restrainers . and even had time permitted they could not have secured a warrant against unknown parties. If they had the names the record would indicate from the police officers viewpoint the time between the information being received by the detective, who came on at 7:00 or 7:30 in the morning, and the arrest which took place prior to 8:30 a. m., did not permit them to go and get a warrant for anybody’s arrest from a duly authorized officer, All of that leads the Court to the conclusion that this arrest was legal, and that if any evidence resulted from it that there is no basis for the evidence to be suppressed.”

A. The Warrantless Arrest

Appellants were arrested for violating the laws of Georgia by kidnapping Oscar Stephens. Since the arrest was not made under a federal statute, the validity of the arrest is determined by the Georgia law of arrest, Nicholson v. United States, 5 Cir. 1966, 355 F.2d 80, 83, insofar as the Georgia law of arrest comports with federal constitutional standards. Cf. Whiteley v. Warden of Wyoming State Penitentiary, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795, cert. denied, 1971, 401 U. S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331. Georgia Code § 27-207 provides that an officer may make a warrantless arrest where “. . . there is likely to be a failure of justice for want of an officer to issue a warrant.” Georgia has apparently engrafted a probable cause requirement onto this statute, and in ascertaining the validity of a warrantless Georgia arrest this Circuit has consistently determined both whether there was likely to be a failure of justice for want of an officer to issue a warrant and whether there was probable cause for the arrest. See Crone v. United States, 5 Cir. 1969, 411 F.2d 251, 253, cert. denied, 1969, 396 U.S. 896, 90 S.Ct. 195, 24 L.Ed.2d 173; Nicholson v. United States, supra. See also Paige v. Potts, 5 Cir. 1965, 354 F.2d 212, 213. We hold that under both standards the warrant-less arrests of appellants were valid.

Appellants contend that the arresting officers lacked probable cause because (1) they relied upon a report filed by Fred E. Bartlett, Jr., which contained only a hearsay report of a conversation that he had had with Oscar Stephens’ wife, and (2) they were relying upon a station house report filed by another detective rather than upon personal knowledge of the Bartlett complaint. Neither of these contentions undermines the district court’s finding of probable cause.

Appellants were arrested on the basis of a complaint phoned in by attorney Bartlett, who related that he had been informed by Paula Stephens that her husband Oscar had been kidnapped in connection with transactions arising from the sale of stolen cars. He further informed the police that the kidnappers had parked a green Firebird or Camaro at the Sylcree Motel where they were holding Stephens captive. In order for the police

“[t]o rely on an informant’s report to establish probable cause, it must first affirmatively appear that the agents were informed of:
[first] some of the underlying circumstances from which the informant concluded that his information was accurate, and [second] some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ”

United States v. Squella-Avendano, 5 Cir. 1971, 447 F.2d 575, 579, cert. denied, 1971, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369, quoting from Aguilar v. Texas, 1964, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, 728-729. Bartlett’s report was a factually detailed recitation of the information he had received from Mrs. Stephens. Bartlett himself was a credible source, an attorney at law licensed to practice in the State of Georgia. Cf. Ga.Code § 9-601. Nonetheless, it might well be contended that the officers could not have relied upon Bartlett’s credibility with regard to facts supplied by a third party, since it was the third party’s information upon which probable cause had to be based. Moreover, although the police were perfectly justified in acting upon information received from a fellow officer, if Bartlett’s report to that officer was unreliable, the report that was passed on to the arresting officers would necessarily also be unreliable. Cf. Whiteley v. Warden of Wyoming Penitentiary, supra, 401 U.S. at 568, 91 S.Ct. at 1037, 28 L.Ed.2d at 313. However, “[i]nformation from an unidentified informant not known to be reliable, coupled with verification of that information in essential particulars, may form a basis for probable cause to arrest.” United States v. Crane, 5 Cir. 1971, 445 F.2d 509, 519. See United States v. Gonzalez-Perez, 5 Cir. 1970, 426 F.2d 1283, 1286. In light of the fact that before the police arrested appellants, the police independently verified (1) the location and existence of the green Fire-bird parked outside of the Sylcree Motel, (2) the fact that Oscar Stephens was suspected by the FBI of having been involved in a transaction involving a stolen car, and (3) the fact that Oscar Stephens was in the company of three men driving a green Firebird, we hold that the police had obtained sufficient corroboration of Bartlett’s report prior to the time of the arrest to provide probable cause for the warrantless arrest of appellants. Moreover, the district court’s finding that there was insufficient time for the arresting officer to get a warrant is not clearly erroneous. We therefore hold that under both standards — probable cause and the likelihood of a failure of justice, the warrant-less arrests of appellants were legal and the district court did not err in denying appellants’ motions to suppress.

B. Rule 5(a)

Rule 5(a) F.R.Crim.P. provides in pertinent part that:

“An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate . . . . ”
This rule applies only to arrests made by or for federal officials, Barnett v. United States, 5 Cir. 1967, 384 F.2d 848, 857, and does not apply to arrests made under state law for state offenses. United States v. Buck, 10 Cir. 1971, 449 F.2d 262, 270. Appellants contend, however, that their arrest by state police officers was accomplished at the behest of and for the benefit of the federal government, and that evidence seized at the time of their arrest should therefore have been suppressed since Rule 5(a) was violated by the government’s failure to bring appellants before a federal magistrate until fifteen days after their arrest. In asserting that the arrest was made at the behest of federal officials, appellants rely heavily on the fact that in making the arrest the state officers received information from the FBI and were followed to the scene of the arrest by the FBI.

The facts of this case do not support appellants’ assertion that these were, in effect, federal arrests. This Circuit has previously discussed the standards for determining when an arrest is a “federal” arrest for the purposes of Rule 5(a) F.R.Crim.P. We stated:

“The necessary inquiry is whether the cooperation between state and federal officials had as its purpose a mere interchange of information and resources between two legitimate investigations, one state and the other federal, or to permit in-custody investigation and interrogation by federal officials without compliance with Rule 5(a). The purpose must be determined objectively from all surrounding circumstances. A high degree of cooperation by state officials in making the subjects available for interrogation by federal officers is not conclusive. Nor is it controlling that the individuals were taken into state custody because of information furnished state officials by federal officers, although it is relevant that federal officers stimulated the state investigation. However, the existence of a legitimate state investigation for a suspected state offense is essential to a valid purpose, and it is important whether or not state officials will proceed with further action on the state charge independent of the outcome of the federal investigation.”

Barnett v. United States, supra, 384 F.2d at 858 (citations and footnotes omitted). The record in this case shows that appellants were arrested by state police officers, on state kidnapping charges, and were held in state custody for fifteen days. Only after a Georgia grand jury returned a no bill on the Georgia kidnapping charge on September 17, 1971, were appellants arrested by the FBI for violating 18 U.S.C. § 2312. On that same day, they were brought before a federal magistrate and received a preliminary hearing as required by Rule 5(a). “Where, as here, the period of state custody precedes a federal arrest, the claim of unnecessary delay is tested from the beginning of federal detention, unless collusion between state and federal authorities is shown. Lovelace v. United States, 357 F.2d 306 (5th Cir. 1966).” United States v. Brown, 5 Cir. 1971, 459 F.2d 319, 324. Appellants have totally failed to show any unnecessary delay between the period of their federal arrest and their preliminary hearing, and in light of the fact that appellants were brought before a Georgia grand jury to ascertain if state charges could be maintained, any contentions of federal collusion are without merit. See Barnett v. United States, supra.

IV. THE GEORGIA EXTORTION STATUTE

Appellants next assert that their motion for acquittal should have been granted because the government failed to prove the existence and the violation of the applicable Georgia extortion statute, Ga.Code § 26-1804. This contention is not meritorious. A federal judge may judicially notice the law of every state, and may inform himself or herself in any manner that he or she chooses, regardless of whether the statute is formally called to the judge’s attention. Strickland v. Humble Oil and Refining Co., 5 Cir. 1944, 140 F.2d 83, 86, cert. denied, 1944, 323 U.S. 712, 65 S.Ct. 37, 89 L.Ed. 573. The trial judge did take judicial notice of the Georgia extortion statute, for he accurately instructed the jury concerning its elements and its relation to the charge of conspiracy to violate 18 U.S.C. § 1952. Furthermore, although it was sufficient for the government to prove, as it did, that there was a conspiracy to travel in interstate commerce with intent to commit the Georgia crime of extortion, see United States v. Karigiannis, 7 Cir. 1970, 430 F.2d 148, 150, cert. denied, 1970, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141; United States v. Rizzo, 7 Cir. 1969, 418 F.2d 71, 74, cert. denied, 1970, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260, and although there was no need for the government to prove that an extortion had been accomplished, the record amply demonstrates that appellants did in fact attempt to extort payments from Oscar Stephens and Marvin Aultman in violation of the Georgia extortion statute.

V. LYNOTT’S MOTION FOR A SEPARATE TRIAL

Lynott argues that the court erred in denying his motion for a separate trial. He contends that he was prejudiced by a joint trial because (1) he was in jail from January 15, 1971, until August 6, 1971, a period of time during which some of the vehicles for which appellants sought repayment from Stephens and Aultman were stolen, and (2) there was insufficient evidence that Lynott was actively involved in the crimes charged in the indictment. This Circuit’s discussion of severerance in United States v. Harris, 5 Cir. 1972, 458 F.2d 670, 672-673, is directly applicable to Lynott's contentions:

“Defendants may be joined in indictment and in trial if ‘they are alleged to have participated in the same act or transactions or in the same series of acts or transactions constituting an offense or offenses,’ F.R.Crim.Pro. 8(b) and 13, unless ‘it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants . . . for trial together,’ F.R.Crim.Pro. 14. All appellants in this ease were alleged to have conspired to commit and to have committed precisely the same crime, allegations clearly within the ambit of 8(b). Once the conditions of Rule 8(b) are satisfied, it is then ‘within the sound discretion of the trial judge as to whether the defendants should be tried together or severally.’ Opper v. United States, (1954), 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101.

See also James v. United States, 5 Cir. 1967, 416 F.2d 467, 474, cert. denied, 1970, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87. The fact that Lynott was in jail during the period of time in which some of the vehicles for which appellants sought repayment were stolen in no way disproves his participation in the transportation of a stolen vehicle in interstate commerce after he was released from jail, or his participation after his release from jail in a scheme to extort payments for vehicles stolen while he was in jail. Since these are the crimes Lynott was charged with, he has failed to evince any evidence that he was prejudiced by the denial of his motion for severance, and we hold that the district court did not abuse its discretion in denying his motion. United States v. Nakaladski, 5 Cir. 1973, 481 F.2d 289; United States v. Iacovetti, supra, 466 F.2d at 1153; Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 37.

VI. LYNOTT’S MOTION FOR A MISTRIAL

Lynott asserts that the trial judge erred in refusing to grant his motion for a mistrial at the second trial when the government stated that it would prove that eight other stolen vehicles were involved in appellants’ transactions with Aultman and Stephens. It is Lynott’s contention that the government’s opening statement was misleading because it failed to state that he was in jail during the period of time during which some of these eight vehicles were stolen, and that this failure prejudiced him by leading the jury to believe that he had participated in the theft of all eight vehicles.

Evidence of criminal conduct not charged in the indictment may not be admitted if it serves solely to show the defendant’s bad character or criminal propensities, see Michelson v. United States, 1948, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168, 173-174; however, evidence of prior criminal transactions is admissible to show the defendant’s motive or intent. United States v. Nakaladski, supra; Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381, cert. denied, 1970, 398 U.S. 968, 90 S.Ct. 2177, 26 L.Ed.2d 554. The evidence that Lynott challenges, that eight other stolen vehicles in addition to the automobile named in the indictment had been stolen and delivered to Aultman and Stephens, was highly relevant, in proving appellants’ motive and intent in conspiring to cross interstate lines to extort payment for these automobiles from Aultman and Stephens. Therefore, the trial judge did not err in refusing to declare a mistrial when the government stated that it was going to prove that eight vehicles were stolen. Moreover, the jury was informed by a stipulation agreed to by the government that Lynott had been imprisoned during the period in which some of the eight vehicles were stolen, and so his contention that the opening statement prejudiced him by leading the jury to infer that he had participated in the theft of all eight vehicles is without merit.

VII. LYNOTT’S MOTION FOR ACQUITTAL

Lynott further contends that the court erred in denying his motion for acquittal because (A) there was insufficient evidence of interstate transportation of a stolen vehicle, (B) there was insufficient evidence of an attempted extortion against Oscar Stephens, and (C) the government withheld exculpatory evidence until the end of the trial.

A. Interstate Transportation

Lynott was charged with violating 18 U.S.C. § 2312 by knowingly transporting a stolen vehicle in interstate commerce, He was arrested in Georgia in possession of a vehicle that had recently been stolen in Massachusetts. Such possession, if not satisfactorily explained, is sufficient circumstantial evidence from which the jury could reasonably have inferred both that Lynott knew that the vehicle was stolen and that he had transported the automobile or caused it to be transported in interstate commerce. United States v. Jackson, 5 Cir. 1971, 444 F.2d 1389, 1390; United States v. Lawrence, 5 Cir. 1970, 427 F.2d 95, 96. The trial judge did not err in denying Lynott’s motion for acquittal on this ground.

B. Extortion

Lynott argues that the trial court erred in failing to direct an acquittal “for the reason that the only evidence of an attempted extortion was against a witness named Marvin Aultman and not against Oscar Stephens as is stated in the indictment.” This argument is puzzlingly inexplicable. Appellants were indicted for conspiring to travel interstate to commit the Georgia crime of extortion. The kidnapping and assault of Oscar Stephens was specifically named in the indictment as an overt act taken in furtherance of the charged conspiracy. There was ample direct evidence given by Oscar Stephens that appellants had indeed attempted to extort payment from him. Moreover, Stephens also testified to appellants’ intent to extort repayment from Marvin Aultman. In light of the foregoing facts, Lynott’s claim that there was insufficient evidence of an attempted extortion against either Oscar Stephens or Marvin Aultman is frivolous.

C. The “Withheld” Evidence

During the trial, Lynott attempted to convince the government to stipulate that he had been in jail from January 15, 1971, until August 6, 1971. The government refused to do so until the end of the trial, when a joint stipulation was read to the jury. Lynott now contends that the government infringed his rights by withholding exculpatory testimony. It is readily apparent that the government in no way violated the prescriptions of Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, for the evidence that the government allegedly withheld, Lynott’s whereabouts from January 15, 1971, until August 6, 1971, was uniquely in Lynott’s possession and could have been introduced and proved by him at any time during the trial. Nor can Lynott’s contention that the government attempted to mislead the jury into believing that he had participated in stealing cars during the period when he was actually in prison be maintained. The government stipulation that Lynott was in prison from January 15, 1971, until August 6, 1971, fully apprised the jury of this “exculpatory” evidence.

VIII. THE TELEPHONE CALLS

Lynott argues that the trial court erred in admitting testimony of Oscar Stephens concerning telephone conversations that he had with Lynott and Yassen, contending that the government failed to lay a proper foundation for Stephens’ testimony. More specifically he asserts that the testimony was inadmissible because (1) Stephens testified that he did not immediately recognize Lynott’s voice when Lynott called him in January 1971 until “he [Lynott] stated who it was and where I had seen him before and recalled the facts;” and (2) Stephens had not yet met Yassen at the time of the telephone conversations with Yassen to which he testified. Neither of these contentions has merit. Stephens’ testimony amply demonstrated that although at first he did not recognize Lynott’s voice, he was able to recall it after having his memory jogged with regard to his previous face to face conversations with Lynott. Such a process of recall is epistemologically sound and does not in any way undermine the credibility of Stephens’ identification of Lynott’s voice.

Stephens also testified concerning telephone conversations that he had with appellant Yassen. He testified that in early 1970, Yassen called him and identified himself. Although Stephens had not met Yassen at the time of the conversation in question, when he did meet Yassen in September of 1971, he recognized Yassen’s voice as that of the person to whom he had spoken approximately fifteen times concerning the selling of automobiles. The identification of Yassen’s voice was a sufficient foundation for the admission of Stephens’ testimony, for the requirement that a witness have a basis for identifying a voice as that of a particular person is satisfied even when the witness acquired his knowledge of the person’s voice after the conversation testified to. See United States v. Moia, 2 Cir. 1958, 251 F.2d 255, 257. Cf. United States v. Cox, 449 F.2d 679, 690, cert. denied, 1972, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136.

IX. LYNOTT’S MOTION TO SUBPOENA WITNESSES

Lynott’s final contention is that the trial judge violated Rule 17(b) F.R. Crim.P. by refusing to subpoena all of the twenty-three witnesses that Lynott desired to have subpoenaed at government expense. Rule 17(b) F.R.Crim.P. provides:

“The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.”

The current status of Rule 17(b) has been cogently analyzed in this Circuit’s opinion in United States v. Moudy, 5 Cir. 1972, 462 F.2d 694, 697-698 (footnotes omitted):

“Prior to 1966, Rule 17(b) provided that a court ‘may’ order a subpoena issued but that an indigent defendant requesting it was required to support his motion with an affidavit stating the testimony he expected from the witness and showing further its materiality and that the defendant could not safely go to trial without the witness. Appellant courts took the view that under the rule the grant or denial of a subpoena was committed to the sound discretion of the trial court and was not to be disturbed in the absence of exceptional circumstances. In 1966 the rule was amended to make issuance mandatory upon ‘a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense.’ That requirement leaves broad discretion in the district court by allowing the trial judge to weigh numerous factors, including materiality, relevancy, and competency, in deciding whether to grant the request for a subpoena. See United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968); Findley v. United States, 380 F.2d 752 (10th Cir. 1967). But we have held, quoting Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (1 963), that the amended requirement means
‘. . . if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record,' that the av-erments are untrue or that the request is otherwise frivolous.
‘ . . . That test places the burden of showing frivolity or abuse of process on the Government, where it properly belongs.’
Welsh v. United States, supra, 404 F.2d at 417-418. See United States v. Hathcock, supra.

The trial judge found that it was unnecessary to call all of the fifteen witnesses to an allegedly exculpatory conversation because their testimony would be cumulative only, and he therefore issued Rule 17(b) subpoenas to only three witnesses to the conversation. The trial judge, acting upon information received from Lynott’s counsel, also found that one of the witnesses that Lynott desired to have subpoenaed would not give relevant testimony concerning the transaction for which his testimony was being subpoenaed, and therefore the trial judge refused to issue a Rule 17 (b) subpoena for that witness. Under the Moudy standard, it is clear that the district court did not err. District Courts have the discretion to prevent the abuse of Rule 17(b) by refusing to subpoena witnesses whose testimony would be cumulative only. See United States v. Chapman, 5 Cir. 1972, 455 F.2d 746, 748; Thompson v. United States, 5 Cir. 1967, 372 F.2d 826, 828. Moreover, there was no need to call the witness whose testimony would not be relevant, since irrelevant testimony is per se not “necessary to an adequate defense,” a prerequisite showing under Rule 17(b) F.R.Crim.P.

X. ROMANO’S MOTION FOR ACQUITTAL

Romano contends that the district court erred in denying his motion for acquittal since (A) there was no evidence that Romano ever travelled interstate, and (B) the government failed to carry its burden of proving that Romano was competent at the time of the transactions under consideration, once Romano’s competency was put in issue.

A. Interstate Travel

Romano was arrested in Georgia in possession of a car recently stolen in Massachusetts. As we have said in Part VII § A, supra, such possession, if not satisfactoria explained, is circumstantial evidence from which the jury could reasonably infer that Romano knew the vehicle was stolen and had transported it or caused it to be transported in interstate commerce. Moreover, Count Two of the indictment charges a conspiracy to travel in interstate commerce to commit the crime of extortion, and there was ample direct evidence that some of the members of the conspiracy had travelled interstate and that Romano had joined in the conspiracy. We therefore hold that the trial court did not err in denying Romano’s motion for acquittal on this ground.

B. Competency

Osear Stephens testified that during the time he was held captive by appellants, appellant Romano appeared to be in a drunken or drugged condition and “acted like he might not know what he was doing.” Romano contends that the trial court erred in denying his motion for acquittal because the foregoing testimony was sufficient to rebut the ordinary presumption of competency and that thereafter the government failed to carry its burden of proving Romano’s competency once it had been put in issue. See Blake v. United States, 5 Cir. 1969, 407 F.2d 908. Romano’s contention is meritless. There was absolutely no testimony, either by expert witness or by laymen, that Romano was insane. Construed most liberally, Stephens’ testimony was at best evidentiary that Romano might well have been under the influence of drugs. Being voluntarily under the influence of drugs is not a legal equivalent of insanity, although it may be evidence that the defendant was incapable of forming a specific intent to commit the crimes with which he or she is charged. Cf. Kane v. United States, 9 Cir. 1968, 399 F.2d 730, cert. denied, 1969, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699; Parker v. United States, 1966, 123 U.S.App.D.C. 343, 359 F.2d 1009. The district judge charged the jury:

“Now, Ladies and Gentlemen, there has been some mention during the trial of this case — anti I do not recall the mention, you will be the sole judge of what mention there may have been —of drug consumption on the part of a defendant who is here on trial. And in connection with that, Ladies and Gentlemen, I charge you, although a stupor due to use of some drug, even a drug taken for medical purposes, is not alone a defense. The fact that a person may have been in a state of drug induced stupor at the time of the commission of a crime may negative the existence of a specific intent.
“Some evidence that a defendant acted or failed to act while in stupor due to use of some drug is to be considered in determining whether or not the defendant acted or failed to act with specific intent as charged. If the evidence in the case leaves the jury with a reasonable doubt whether, because of the degree of his drug induced stupor, the mind of the defendant was capable of forming or did form specific intent, the jury should acquit the accused.”

We hold that this charge protected Romano’s rights and that the district court committed no error in denying Romano’s motion for acquittal.

XI. CONCLUSION

Appellants have raised numerous substantive and procedural attacks on their convictions. However, being firmly convinced that appellants received a fair trial and that the jury’s verdict was supported by the evidence, we affirm. Affirmed.

      . Appellants have joined in each other’s assignment of error. To the extent that our disposition of any issue raised by an appellant is applicable to another appellant, we acquiesce in this procedure. However, our disposition of their assignments jointly in no way represents a ruling on the standing of each appellant to assert the errors relied upon by the other.

      . We are thus not faced with a case where there is any intimation that the prosecutorial impropriety causing the mistrial arose from a fear that the jury was likely to acquit. See United States v. Tateo, 1964, 377 U.S. 463, 467 n. 3, 84 S.Ct. 1587, 12 L.Ed.2d 448. 452 n. 3.

      . Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, relied on by appellants, is not at all dis-positive, for in that case a mistrial was granted on motion of the prosecution over the defendants objection.

      . Of course, the minimum constitutional standard applicable to all warrantless arrests, state or federal, is whether the arresting officer had probable cause at the time of the arrest. Cf. Whiteley v. Warden of Wyoming Penitentiary, supra.

      . The trial judge instructed the jury:
      “Now, I further charge you that there is a law of the state of Georgia which is described in this indictment as Georgia Code Annotated 26-1804, and it gives the statutory reference, that is to the book where the laws in Georgia are published, and that law refers, that is the law of the state of Georgia as described, is a crime of violence within the meaning of this federal law, and it provides under the law of Georgia that a person commits theft by extortion when he unlawfully obtains property of or from another person by threatening to inflict bodily injury on anyone or commit any other criminal offense.
      “So, in essence, Ladies and Gentlemen, it is charged that there was a conspiracy to violate a law of the United States which makes it a crime to travel in interstate commerce for the purpose of violating this law of the state of Georgia, and, of course, includes, as you will recall, the necessary ingredient of performing or attempting to perform this crime of violence.”