author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Armando ARIAS-DIAZ, Delfin Hondares-Alfaro, Octavio Pino-Villa, Pedro Alvaro Zarzabal-Naranjo, Mario Orlando Curbelo-Talvara and Jose Quinones-Pita, Defendants-Appellants.
    No. 73-2463.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.

      Tyce S. Smith, Chicago, 111., for Curbelo-Talvara and Pino-Villa.
    George B. Weires, Miami, Fla., for other defendants-appellants.
    John L. Briggs, U. S. Atty., Robert S. Yerkes, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

      Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.
   WISDOM, Circuit Judge:

About 5 a. m., January 10, 1973, United States customs agents stopped four cars traveling together near the Lees-burg Airport, Florida. The agents arrested six persons caught redhanded with a total of 1947 pounds of marijuana. The defendants-appellants, Arias, Hondares, Pino, Zarzabal, Curbelo, and Quinones, were indicted, each on three charges of violating the marijuana laws: conspiring to import and distribute marijuana; knowingly and intentionally importing marijuana; and knowingly and intentionally possessing marijuana with the intent to distribute it. See 21 U.S.C. §§ 841(a)(1), 952(a), 960(b), 963 and 18 U.S.C. § 2. The defendants were tried together. Pino and Curbelo were convicted on all three counts. The other defendants were convicted only of possession of the marijuana. All appeal. We reverse the conviction of Zarzabal and affirm the convictions of the other five.

I.

Juan Ortiz, an airplane pilot, was a government informer and the chief government witness. He testified that on December 7, 1972, he met with an alleged narcotics smuggler from Colombia, Raul Gonzales, at a hotel in Miami, Florida. Ortiz had met Gonzales through Curbelo. In the hotel lobby Ortiz was introduced to Nacre Dace, another alleged marijuana dealer from Colombia. Dace later asked Ortiz to introduce him to Curbelo. Ortiz informed Curbelo that “there was a person from Colombia who wanted to see him”. Curbelo suggested that they meet in his trailer. The meeting took place at 11 a. m. the next morning ; Curbelo, Ortiz, Dace, and Pino were present. Dace said that a friend of Curbelo’s needed money and had about 1800 pounds of marijuana in Colombia for sale. Curbelo agreed to pay Ortiz $55,000 to fly to Colombia to pick up the marijuana and bring it back into the United States. Curbelo was to send $36,000 with Ortiz as partial payment for the shipment and later pay another $36,000 to complete the deal.

Curbelo gave Ortiz several hundred dollars to make a deposit on the rental of an airplane, and later Curbelo and Pino brought Ortiz $2,500 to cover rental of the plane and other expenses. They told Ortiz how to make the connection in Colombia. Arrangements were also made for Ortiz to be met at Lees-burg, Florida, upon his return from Colombia. Ortiz was to pick up a car parked near the landing field at Lees-burg and drive it to the local Holiday Inn. He would be met there by Pino and Curbelo. Ortiz divulged the plan to United States customs agents.

Ortiz flew from Miami to Colombia, as planned, and picked up 24 boxes of marijuana, disguised as cartons of cigarettes. He then flew to Kingston, Jamaica. After speaking with a customs agent, he flew on to Marathon, Florida, where he refueled and flew on to Lees-burg. When he landed at Leesburg, he was unable to find the appointed car, and he was unable to locate Pino or Curbelo at the Holiday Inn. He then taxied to a remote area of the airport, dumped the 24 boxes of marijuana on the ground, and flew to Miami. At that time his plane was fully inspected by U. S. Customs agents and found not to contain any type of drugs. When he arrived at his home in Miami at about 3 a. m., January 10, he learned from his wife that Pino had called. Pino called again between 3:30 and 4 a. m. He said that he was at the Leesburg Airport and asked where the marijuana was. Ortiz told him that it was at the end of the east-west runway.

Fifteen customs agents were at the Leesburg Airport in the early morning hours of January 10, 1973. At about 4:30 a. m. four cars pulled up and parked near the east-west runway. Half an hour later three of those cars proceeded to the area where Ortiz had left the cartons of marijuana. When the cars departed shortly thereafter, the cartons were gone. As these automobiles left the airport, they were joined by a fourth. Customs agents, who had been staked out at the airport, stopped all four cars. Curbelo, the driver of the fourth car, had none of the cartons; he did have two .38 caliber snub-nosed revolvers in the trunk of his car. Pino, with a passenger unidentified at trial, was driving a car containing nine cartons. Hondares, with Quinones as a passenger, had eight. The remaining car contained seven cartons. The driver was not identified at trial. Customs agents did not show that Zarzabal or Arias was in any of the vehicles stopped; nor did the agents identify them as being at the airport.

II.

At the close of the Government’s ease, all of the defendants moved for judgments of acquittal on all counts. The motions were denied. Zarzabal now argues that the court erred in denying his motion.

The test to be applied by the trial court in passing on a motion for judgment of acquittal “is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.” United States v. Jeffords, 5 Cir. 1974, 491 F.2d 90, 91; United States v. Knox, 5 Cir. 1972, 458 F.2d 612, 615, cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85; Jones v. United States, 5 Cir. 1968, 391 F.2d 273, 274. The judge is to direct acquittal “if the evidence is insufficient to sustain a conviction”. Fed.R.Crim.P. 29(a).

The court erred in denying Zarzabal’s motion to dismiss and in submitting the case against him to the jury. There was no evidence in the Government’s case-in-chief to implicate Zarzabal directly. One of the customs agents, Mason, identified Pino as the driver of one of the cars and stated that there was a passenger, but he could not remember the passenger’s name. The Government asks us to infer from this bald statement that the passenger was Zarzabal. We cannot draw this inference. Nor are we inclined to follow the Government’s suggestion that testimony establishing that six suspects were arrested and that “all the defendants” were taken into Leesburg Municipal Courtroom and advised of their rights was sufficient to support a reasonable jury finding of Zarzabal’s guilt beyond a reasonable doubt. This is not “substantial evidence” to support the verdict. See United States v. Jackson, 5 Cir. 1971, 444 F.2d 1389.

The Government also argues that Zarzabal waived appellate consideration of the denial of his motion for acquittal when his codefendant, Arias, testified and supplied deficiencies in the Government’s case. Arias took the stand and attempted to raise a defense that he had no knowledge that the packages contained marijuana. During his testimony he mentioned that about 1 a. m. on January 10, 1973, he rented a room at the Holiday Inn in Leesburg, Florida, for Zarzabal and himself. It is problematical whether this testimony added enough to the nascent case against Zarzabal to permit it to go to the jury. In any event, we cannot accept Arias’s testimony as representing Zarzabal’s waiver of consideration of the motion for acquittal. The rule is well-recognized in this circuit that a defendant who testifies himself and supplies deficiencies in the Government’s case waives appellate review of a denial of his motion for judgment of acquittal at the close of the Government’s case. See United States v. Jackson, supra, 444 F.2d at 1389; United States v. Rawls, 5 Cir. 1970, 421 F.2d 1285. We adhere to it. But that doctrine should not be extended to imply waiver when a codefendant testifies. See Cephus v. United States, 1963, 117 U.S.App.D.C. 15, 324 F.2d 893, 897.

III.

The appellants argue that through the activities of Ortiz, the informer, the Government’s role was so integral a part of the criminal enterprise as to be repugnant to the criminal justice system and deprive the appellants of due process. They are careful not to couch this argument as entrapment. The theory, once increasingly relied on by defendants, that entrapment exists as a matter of law when there is “an intolerable degree of governmental participation in the criminal enterprise” was cut short by the 1973 Supreme Court decision United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. In Russell the Court reaffirmed the classic predisposition test for entrapment: “It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” 411 U.S. at 436. The Court did not rule out the possibility however, that it might “some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-432. The appellants here contend that that day has now arrived, ushered in by the case at bar.

We need not lay out a detailed account of Ortiz’s role to dispose of the appellants’ argument on this point. Their attempt to impart life to the theory, discredited in Russell, that government involvement in criminal activity bars prosecution must fail. It is clear that the situation envisioned by the Supreme Court in Russell to require reversal involved more than the presence of a government informer in the scheme and his supplying a not uncommon, though essential, skill, such as here the ability to fly a plane. And we think that the “outrageous” conduct postulated by the Court must be more than carrying messages and thereby facilitating the meeting of criminal minds. These mark the extent of Ortiz’s contribution. To require reversal, the Government’s conduct must violate that “ ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment”. Id. at 432, quoting Kinsella v. United States ex rel. Singleton, 1960, 361 U.S. 234, 246, 80 S.Ct. 297, 4 L.Ed.2d 268. Where that threshold may lie, we are not required to say in this case. But the Government has certainly not crossed it here.

IV.

Quinones, Pino, and Curbelo argue that the trial court erred in permitting, over strenuous objection, certain evidence of other criminal acts of the defendants to be admitted. The evidence complained of related to two different transgressions. First, Ortiz implicated Pino and Curbelo in an earlier scheme to import marijuana. Second, Ortiz testified that weeks after the arrests were made near the Leesburg Airport, Pino and Quinones separately communicated to him that someone must have informed the Government as to the time the marijuana would be arriving in Leesburg. Each stated that when he discovered who the informer was, he would kill him. Ortiz related that Quinones had implied that the threats came from Pino and Curbelo, but that Quinones felt the same way.

The general rule, well-settled, is that evidence of offenses not charged in the indictment is not admissible. Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682, cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. There are, however, exceptions, also well-settled. See Ehrlich v. United States, 5 Cir. 1956, 238 F.2d 481, 484. Taken together, the rule and the exceptions teach that although the prosecution cannot use evidence of other crimes to show the defendant’s propensity to commit the crime charged, it can use it for another relevant purpose. United States v. Abshire, 5 Cir. 1972, 471 F.2d 116, 118. Here the testimony helped to prove that the defendants were part of a conspiracy to import marijuana illegally. For this purpose it was properly admissible. See United States v. Gonzalez, 5 Cir. 1974, 491 F.2d 1202, 1205; United States v. Nakaladski, 5 Cir. 1973, 481 F.2d 289, 296. The challenged testimony illuminated the character of the conspiracy and the extent of the involvement of the participants. Specifically, the testimony relating to the earlier marijuana load cast light on the duration of Pino’s and Curbelo’s association and the objects of their joint activities. See Devoe v. United States, 8 Cir. 1939, 103 F.2d 584, 589, cert. denied, 308 U.S. 571, 60 S.Ct. 84, 84 L.Ed. 479. The threats tended to reaffirm the extent of Pino’s involvement, in addition to showing Quinones’s role.

This is not a case where the evidence was introduced to prove an element not “a critical ingredient of the offense charged”. United States v. Goodwin, 5 Cir. 1974, 492 F.2d 1141, 1151, quoting Hamilton v. United States, 5 Cir. 1969, 409 F.2d 928, 930 (emphasis in original). Proof of the existence of the conspiracy, of course, is an essential first step in proving the crime of conspiracy. The existence and membership of the conspiracy were definitely at issue here. Compare Goodwin. We hold that it was within the trial court’s discretion to admit the challenged evidence as tending to establish the conspiracy charged. See United States v. Fonseca, 5 Cir. 1974, 490 F.2d 464, 469; United States v. Abshire, supra, 471 F.2d at 118; Devoe v. United States, supra, 103 F.2d at 588-589.

y.

Pino and Curbelo further argue that they were denied their sixth amendment right of confrontation when the trial court permitted, over objection, the introduction of hearsay testimony implicating them in the threat made by Quinones to Ortiz. The district judge admitted the testimony on the theory that it satisfied the federal co-conspirator exception to the hearsay rule. Although we agree with the appellants that the district court erred in admitting the testimony, we do not find the error so prejudicial as to require reversal.

The federal co-conspirator exception permits the introduction of hearsay statements “by a co-conspirator of a party during the course and in furtherance of the conspiracy”. Federal Rules of Evidence, Rule 801(d)(2)(E) (1972); 3 Wharton’s Criminal Evidence § 642 (13 ed. 1973). To be admitted under the exception, the statements must be made in furtherance of the “main aim” of the conspiracy; statements made in efforts to prevent detection and punishment are inadmissible, Krulewitch v. United States, 1949, 336 U.S. 440, 444, 69 S.Ct. 716, 93 L.Ed. 790. Furthermore, hearsay statements made by an alleged co-conspirator after his arrest are generally inadmissible against all but the defendant. Lutwak v. United States, 1953, 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593; Hamilton v. United States, 1970, 139 U.S.App.D.C. 368, 433 F.2d 526, 530, cert. denied, 402 U.S. 944, 91 S.Ct. 1612, 29 L.Ed.2d 112. For a person’s role in a conspiracy ends with his arrest. See United States v. Harrell, 5 Cir. 1970, 436 F.2d 606, 613, cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed. 2d 86.

Quinones was arrested in Leesburg on January 10, 1972. His threat to Ortiz, and implication of Pino and Curbelo, occurred about five weeks later. Because Quinones’s role as a co-conspirator in the marijuana smuggling ended with his arrest, his declarations made later should not have been admitted against Pino and Curbelo. The trial judge’s admission of the testimony seems to violate the federal hearsay rule.

We hold, however, that the error does not rise to constitutional proportions. See United States v. Fischetti, 5 Cir. 1971, 450 F.2d 34, 41, cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478. In California v. Green, 1970, 399 U.S. 149, 155-156, 90 S.Ct. 1930, 26 L.Ed.2d 489, and Dutton v. Evans, 1970, 400 U.S. 74, 81-82, 91 S.Ct. 210, 27 L.Ed.2d 213, the Supreme Court observed that the hearsay rule and the confrontation clause of the sixth amendment are not congruent. Testimony may violate the hearsay rule without violating the Constitution. Here, because the declarant Quinones was a defendant, he was not available to be called by the prosecution. See United States v. Burke, 5 Cir. 1974, 495 F.2d 1226. Moreover, though in violation of the hearsay rule, the testimony implicating Pino and Curbelo in the threat was not crucial to the Government’s case or devastating to the defendants. See Dutton v. Evans, supra, 400 U.S. at 87; United States v. Burke, 495 F.2d 1226. The other evidence against Pino and Curbelo was solid and virtually compelled a jury finding of guilt beyond a reasonable doubt on all counts. Pino and Curbelo were present at the first meeting, at which plans for the January marijuana caper were laid. There Curbelo agreed to buy the Colombian marijuana and to arrange for it to be flown to the United States. Together Pino and Curbelo brought Ortiz $2,500 to rent the airplane to be used to import the marijuana. Pino telephoned Ortiz upon the latter’s return from Colombia, inquiring where the marijuana might be found. And both were arrested in close proximity to almost a ton of marijuana on January 10, 1973. Finally, Pino made an independent threat to Ortiz. At most, the questioned testimony was “peripheral”. See Dutton v. Evans, supra, 400 U.S. at 87.

Because we find no constitutional error, we use the traditional standard to determine whether the error was harmless. Compare Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 814, 17 L.Ed.2d 705 (constitutional error) with Kotteakos v. United States, 1946, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (nonconstitutional error). The standard applicable to nonstitutional error was stated in Kotteakos:

If, when all is said and done, the conviction [court] is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

328 U.S. at 764-765. See Fed.R.Crim.P. 52(a).

The standard for determining the harmlessness of error under Kotteakos is more strict than that for determining whether the admission of hearsay testimony violates the confrontation clause under Dutton. In other words, hearsay testimony that is neither “crucial” nor “devastating” under Dutton may nevertheless amount to reversible error under Kotteakos. In the case before the Court, however, the evidence against Pino and Curbelo was overwhelming. We conclude that the hearsay testimony, even if improperly admitted, had no substantial effect on the verdict.

VI.

The appellants raise six other contentions. They maintain that (1) the evidence was insufficient to convict Pino and Curbelo of unlawfully importing marijuana; (2) the Government failed to correct perjurous statements of Ortiz, the chief government witness; (3) the Government violated a pretrial discovery order by not disclosing to the appellants an oral exculpatory statement made by Curbelo at the time of his arrest; (4) the Government failed to tender reports of the Government’s expert witnesses to the appellants; (5) the district court erred by admitting evidence of post-indictment conversations between Ortiz and appellants Pino and Quinones; and (6) the trial court abused its discretion in denying Curbelo’s motion for severance. We have carefully considered these contentions, and we find them to be without merit.

Affirmed in part, reversed in part.

      . We refer to the defendants-appellants by shortened names, as they are referred to in the record and briefs.

      . Zarzabal renewed his motion for acquittal at the close of all the evidence. See Fed.R.Crim.P. 29(2).

      . Presumably for this reason, Arias, against whom the evidence produced in the Government’s case-in-chief was weak, has not appealed the denial of his motion for acquittal.

      . The Government’s supplying pilot’s skills is similar to the Government’s supplying in Russell a scarce, though legal, chemical used in the manufacture of methamphetamine (“speed”). It is very different from the Government’s providing the contraband, “the possession or distribution of which constitutes the very substance of the crime”. United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161, 163; see United States v. Bueno, 5 Cir. 1971, 447 F.2d 903.

      . The district court instructed the jury that the testimony with regard to this earlier importation of marijuana applied only to Pino and Curbelo.
      Ortiz also mentioned that he and Quinones had “conversations leading on a flight to Colombia to ‘brought’ a load of drugs from Colombia”. After objection the court instructed the jury that the comment would be stricken from its consideration.

      . In response to a defense objection to the hearsay nature of Ortiz’s testimony, the trial judge said:
      Well, he’s allowed to testify as to any conversation that any of these defendants might have had with him or he had with them if he will specifically identify them and confine it to that conversation at a period of time somewhere near the period of time covered by the indictment .
      This is not the rule.


source: Caselaw Access Project

author: CLARK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Villareal RODRIGUEZ, Carlos Gomez Castillo, and Teodoro Jardon Tobar, Defendants-Appellants.
    No. 73-4020
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.

      John H. Miller, Jr., Sinton, Tex., Fred H. Dailey, Jr., Houston, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Anna E. Stool, Staff Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 431 F.2d 409, Part I.

   CLARK, Circuit Judge:

On this appeal from their conviction for possession of marijuana with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Frank Rodriguez, Carlos Castillo and Teodoro Tobar make three arguments for reversal: (1) their retrial after the first jury was discharged for failure to agree placed them twice in jeopardy; (2) the search through which the marijuana was discovered and seized violated their fourth amendment rights; and (3) the district court erred in not dismissing the indictment since the time between arraignment and trial was longer than that prescribed by the Plan for the United States District Court for the Southern District of Texas For Achieving Prompt Disposition of Criminal Cases [the Plan], adopted pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure. We reject arguments (1) and (2) and affirm these rulings of the district court on the basis of its discussion of such contentions. 375 F.Supp. 589. Argument (3) merits additional attention.

The Plan’s time limitations require that trial commence within 90 days of a plea of not guilty for a defendant who is not in custody. The Plan’s enforcement provisions provide that the court may take such action as it deems appropriate for failure to comply with maximum time limits under the Plan including, but not limited to, dismissal of the action for unnecessary delay as provided in Rule 48 of the Federal Rules of Criminal Procedure. The Plan also provides that the court may extend any time limit specified in the Plan for a particular case by entering an order of extension therein; and further provides that the court may grant continuances which will justify extensions of specific time periods applicable to a particular case, but only if the court takes into account “the public interest in the prompt disposition of criminal charges and the interest of the defendant in a speedy trial.” Among the reasons which the Plan expressly provides may justify a continuance is “any period of delay occasioned by exceptional circumstances.”

There was an elapsed time of 169 days from the date of arraignment until the first trial of these defendants commenced, during which time they were released on bail. Based upon lack of compliance with the Plan’s 90-day limitation period, the defendants moved to dismiss the indictment. After their conviction at the second trial, in an order denying defendants’ motion for a new trial, the district court refused to dismiss the indictment, based both on Sixth Amendment speedy trial grounds and on grounds of non-compliance with the Plan. In support of its refusal the court stated:

It cannot be said in this instance that the length of time between the indictment and trial justifies such a dismissal. The defendants have not been denied their Sixth Amendment right to a speedy trial. Here, the length of delay . . . was occasioned solely by the extremely congested docket of this Court; the defendants failed, prior to the trial date, to request an earlier trial; the defendants have shown no prejudice accruing from the delay, such as the loss of vital witnesses.

The principal focus in Rule 50(b) is on the public interest in the quick, efficient functioning of the criminal justice process. Implicit in adoption of the rule is that this public interest is not adequately safeguarded by the protections accorded defendants through the speedy trial clause of the Sixth Amendment and Rule 48(b). See Committee Note to Proposed Rule 45 Alternative Draft No. 1, 8A J. Moore, Federal Practice ¶[ 50.02 [2], at 50-9 (2d ed. 1973). The Plan for the Southern District of Texas, as do all thesé plans in this circuit, seeks to meet this mandate to consider the added dimension of public concern by creating new responsibilities, setting up new procedures and establishing specific maximum time limits for the occurrence of each step in the criminal process.

In the instant case the district judge stated that he considered the defendants’ failure to demand trial and their failure to show prejudice. These considerations are, of course, part of the balancing test demanded by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to determine whether the defendants’ constitutional right to a speedy trial was violated. However, questions of compliance with 50(b) plans in this circuit demand the use of a broader calculus. Such considerations are only a beginning in determining whether non-compliance with the Plan’s time limits requires dismissal of an indictment. Their relationship to the public interest which the Plan was intended to emphasize is, at most, attenuated. The Plan itself provides that lack of prejudice “shall not justify non-compliance.” It likewise clearly states that the Plan is “applicable to all criminal actions without any necessity for demand by the defendant.” The uniqueness of these plans is that they place an affirmative duty on the government to bring the accused to trial. In judging plan compliance, consideration of lack of prejudice to the defendant or demand for trial by the defendant could serve to transpose a part of this burden to the accused. It is the duty of the prosecutor and the court to make these plans work. Therefore, on this appeal we limit our test of the validity of the denial of the defendants’ motion to dismiss to the basis set out by the court below as the sole cause of the delay — the court’s extremely crowded docket.

In 1971 the second circuit, pursuant to its supervisory powers over the district courts in that circuit, promulgated a speedy trial plan for those courts. See United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir. 1971). That circuit, in interpreting its plan, has held that when a delay is attributable to the government, it can assert that such delay was occasioned by “exceptional circumstances” notwithstanding the prosecutor’s failure to move for a continuance before the time limits of the plan expired; United States v. Rollins, 475 F.2d 1108 (2d Cir. 1973). Similarly, the fact that the trial judge did not consider whether an extension of time was justified under the plan until after its time limits had expired does not invalidate his action here. The Plan is explicit in this regard. Extensions may be granted by the court before or after the particular period to be extended has run.

The Plan does not require dismissal for delays which are necessary, i. e., beyond the control of the court or prosecution. It is intended to expedite the processing of criminal cases — not to lay a snare for an overburdened court system. The numerous “safety valves” which have been written into the Plan make it plain that it is not intended to impose arbitrary or impractical penalties on the system of criminal justice it seeks to expedite. On the other hand, delays caused by prosecutorial or judicial inefficiency or neglect, i. e., eorrectible faults, are within the aim of the Plan.

On the merits of the case at bar, the issue is whether the trial judge’s extremely congested docket was a proper reason for extending the trial time fixed by the Plan. Factors which cause a court’s trial docket to become exceptionally crowded may constitute a “period of delay occasioned by exceptional circumstances,” where they result from a temporary overload of the system due to major trials or unusually large numbers of criminal filings. On the other hand, where a crowded criminal docket stems from failure to give the preference to criminal cases which is required by Fed.R.Crim.P. 50(a) and by the Plan, dismissal may be warranted. Then too, if a particular court’s criminal docket is chronically crowded, plan times are delayed with any frequency and no remedy can be devised, the court should consider amending the Plan to accord with the realities of the situation. However, in the instant case, given the district judge’s finding that the delay was due to an exceptionally crowded docket, we decline to require dismissal.

The Plan requires that reasons for entering an order of extension be embodied in the order. The Second Circuit has further required that a district judge make findings indicating why a delay ostensibly in violation of that circuit’s speedy trial plan should be excused by one of its exceptions where the source of the delay was in the United States Attorney’s office and further fact finding was appropriate. See, e. g., United States v. Scafo, 470 F.2d 748 (2d Cir. 1972); United States v. Valot, 473 F.2d 667 (2d Cir. 1973). A statement of the facts underlying the district judge’s findings in the instant case would have been helpful to this court. However, the absence of explanatory comment leaves it sufficiently implicit that the crowded docket was one that resulted from inadequate judicial resources to warrant our affirmance. •

The remedial requirements of the 50(b) plans in this circuit are still new. Understandably, busy districts may find it difficult to operate under them impeccably. Some miscalculation in applications to individual cases is to be anticipated. Nevertheless, strict sensitivity to the requirements of these plans must be the standard if they are to achieve the high purposes for which they are intended. Because that fidelity was not lacking here, the decision appealed from is

Affirmed.

      . Rule 50(b) requires each district court to prepare “a plan for the prompt disposition of criminal cases which shall include rules relating to time limits within which procedures prior to trial, the trial itself, and sentencing must take place.” The 50(b) Plan for the Southern District of Texas was duly submitted and approved by the reviewing panel as further provided in the rule.

      . See generally, Judge Godbold’s article, Speedy Trial — Major Surgery for a National Ill, 24 Ala.L.Rev. 265 (1972).

      . Challenges to plan compliance will usually arise in response to a motion to dismiss. Again, no affirmative action by a defendant should become a prerequisite. The court or the prosecutor may be the initiating source. In any event, the question to be resolved is whether, considering the public interest, alongside the defendant’s extraplan rights, the delay is one that the purposes and the language of the Plan can tolerate. The fact that the United States Attorney’s office has not sought a continuance or extension and the court, sua sponte, has not granted such relief before a defendant moves for dismissal does not control the resolution of these questions.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack SIMMONS, Jr., Defendant-Appellant.
    No. 74-1173
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 12, 1974.
    Rehearing Denied Aug 8, 1974.
    R. Wayne Nunnally, Norfolk, Va., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., John F. Conroy, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   GOLDBERG, Circuit Judge:

Appellant, Jack Simmons, Jr., was indicted on fifteen counts of violating the involuntary servitude and peonage statutes. On November 13, 1972, the day his case was set for trial, appellant entered a plea of guilty to two counts of the indictment. After careful questioning pursuant to Rule 11, Fed.R.Crim.P., the district court found that appellant’s plea was freely, intelligently, and voluntarily made. On April 6, 1973, when he was called forward to be sentenced, appellant, through his attorney Angus Harriett, moved to withdraw his guilty plea. After a full hearing on April 16, 1973, the court denied the motion. On January 3, 1974, the court sentenced appellant to four years imprisonment on each of the two counts to which he had pleaded guilty, the sentences to run concurrently. On this appeal we have been asked to reverse the order of the district court denying appellant’s motion to withdraw his guilty plea. We decline.

Appellant bases his claim for relief on Rule 32(d), Fed.R.Crim.P., which provides:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

It is the well-settled rule in this Circuit that, even prior to the imposition of sentence, an accused has no absolute right to withdraw a guilty plea, and that the grant or denial of such a motion is within the sound discretion of the trial court. United States v. Valdez, 5 Cir. 1971, 450 F.2d 1145; United States v. Arredondo, 5 Cir. 1971, 447 F.2d 976, cert. denied, 404 U.S. 1026, 92 S.Ct. 683, 30 L.Ed.2d 676; Kirshberger v. United States, 5 Cir. 1968, 392 F.2d 782.

Conceding that discretion rests with the trial judge, appellant urges that Rule 32(d) should, nevertheless, be liberally construed; and he has mustered formidable authority to support his contention. Almost fifty years ago the Supreme Court declared that “[t]he court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.” Kercheval v. United States, 1927, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009. The rationale for such a policy is that the public interest in protecting a defendant’s right to trial by jury usually outweighs any inconvenience that the court or the prosecution is likely to suffer as a result of a withdrawn plea prior to sentencing. See Kadwell v. United States, 9 Cir. 1963, 315 F.2d 667. Noting these considerations, Professor Wright has proposed that courts allow pre-sentencing withdrawals of guilty pleas virtually as a matter of course “unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.” 2 C. Wright, Federal Practice and Procedure, Criminal § 538, at 474-75 (1969). In United States v. Presley, 5 Cir. 1973, 478 F.2d 163, 167, we noted our adherence to “the general principle that Rule 32(d) should be construed liberally in favor of the accused when a motion is made to withdraw before sentence is imposed.”

Appellant’s statement of the law is very persuasive. Unfortunately for him, even under the most enlightened application of Rule 32(d), the facts of his ease do not justify the conclusion that the district court erred in refusing to permit the guilty plea to be withdrawn. First, in recommending a guilty plea appellant’s counsel made no representation to him that any deal had been made, but merely expressed his opinion that appellant would receive only a probated sentence. Only after appellant’s brother Willie Simmons — who had pleaded guilty to one count of a similar indictment and who appeared with appellant for sentencing — was sentenced to four years imprisonment, did appellant move to withdraw his guilty plea. To have granted the motion under these circumstances would have been to permit appellant to use the guilty plea as a means of testing the weight of the potential sentence — a primary policy ground for denying plea changes. See footnote 3, supra.

Another important factor supporting the trial court’s order in this case is the likelihood of substantial prejudice to the prosecution. In issuing its order, the district court made the finding that, as of the day the case was set for trial:

At great expense and with considerable difficulty the Government had secured the presence of sufficient witnesses to go to trial on seven of the fifteen counts charged in the indictment. Most of the witnesses were transients who had been difficult to locate. Subsequently, in reliance upon the guilty plea, the Government released and no longer maintained contact with these witnesses.

Locating those witnesses again would be extremely onerous and, in many cases, perhaps impossible.

Finally, appellant’s argument that the court should have granted his motion because he is functionally illiterate, has had no formal education, and was in “an arena that instills fear,” is amply refuted by the record concerning his apparent success as an “entrepreneur.” Appellant operated a migrant farm labor camp for several years, never employing fewer than fifteen people and averaging gross revenues of $1200 to $1300 per week. In light of these facts, we are convinced that the court’s finding that the guilty plea “was factually based and freely, intelligently, and voluntarily made” is not clearly erroneous.

Recognizing the care with which the district court accepted appellant’s guilty plea, the basis upon which its withdrawal was sought, and the likelihood of substantial prejudice to the government, we conclude that the district court did not abuse its discretion in denying appellant’s motion to withdraw his plea.

Affirmed.

      . 18 U.S.C. §§ 1584 and 1581(a).
      § 1584. Sale into involuntary servitude Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
      § 1581. Peonage; obstructing enforcement (a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
      The truncated record on appeal reveals little about the specific charges in the indictment. The transcript of the Rule 11 proceeding, however, indicates that the charges arose out of appellant’s operation of a migrant farm labor camp at Pomona Park, Florida. There was testimony to the effect that workers recruited by appellant were forced at gunpoint to return to the camp and “work off” money allegedly owed to appellant.

      . Rutledge Liles, an attorney who had been employed as trial counsel only, refused to join in the motion; Liles sought and was granted permission to withdraw as counsel in the case.

      . The Court in Kadwell contrasted the public interest in freely granting pre-sentencing motions to change pleas with the factors involved in considering post-sentencing motions :
      But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process.
      315 F.2d at 670.

      . Rising to object to continuing with the sentencing procedure and to move for permission to withdraw the guilty plea, Mr. Harriett stated:
      I felt like in representing Jack Simmons, when we entered the plea of guilty to two counts of the involuntary servitude, that Jack’s record would warrant probation. I still think his record would warrant probation, and we have a goodly number of witnesses here to testify as to his record, but obviously having been in Court when Willie was just sentenced, I think I probably gave Jack bad advice in entering his plea of guilty to two counts.

      . Mr. Fine, who represented appellant at the hearing on the motion to withdraw the guilty plea, attested to the fairness and thoroughness of the Rule 11 proceeding:
      I might state for the record, may it please the Court, so far as this Honorable Court is concerned in doing that, we do not feel, if Your Honor please, that the Court could have asked any other questions that would have materially helped the situation.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Dave VAN HOOMISSEN, Plaintiff, Equal Employment Opportunity Commission, Plaintiff-IntervenorAppellant, v. XEROX CORPORATION et al., Defendants-Appellees.
    No. 74-1037.
    United States Court of Appeals, Ninth Circuit.
    May 29, 1974.
    See also D.C., 368 F.Supp. 829.

      Carlos G. Ynostroza, San Francisco, Cal., for EEOC.
    John E. Thorne, of Thorne, Clopton, Herz, Stanek, Inc., San Jose, Cal., Beatrice Rosenberg, Charles L. Reischel, James P. Seanlan, of EEOC, Washington, D. C., for plaintiff.
    Richard Haas, of Brobeck, Phleger & Harrison, San Francisco, Cal., for def endants-appellees.
   OPINION

Before DUNIWAY, WRIGHT and CHOY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Van Hoomissen sued Xerox, his former employer, under Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-2(a)], alleging that Xerox fired him and engaged in other acts of retaliation because of his efforts to recruit minorities. The Equal Employment Opportunity Commission sought leave to intervene under 42 U.S.C. § 2000e-5(f)(1) and Fed.R.Civ.Proc. 24(b). In its proposed complaint in intervention, EEOC alleged that Xerox both engaged in discriminatory hiring practices and had unlawfully retaliated against Van Hoomissen. The district court granted EEOC leave to intervene, limited to the issue of retaliation. EEOC appeals, claiming that it should have been permitted to challenge Xerox’s alleged discriminatory hiring practices in its complaint in intervention. We dismiss the appeal.

The threshold question is whether the district court’s order is appealable. First, we consider whether it is a final order under 28 U.S.C. § 1291. An order permitting intervention is not a final order and is not appealable. Roach v. Churchman, 457 F.2d 1101 (8th Cir. 1972); Kris Petroleum v. Stoddard, 221 F.2d 801 (9th Cir. 1955). Because the district court restricted EEOC’s ability to intervene, we are presented here with the interesting problem whether the order was, indeed, one permitting intervention. We need not decide this issue, however, for even assuming arguendo that the order should be treated as a denial of intervention, it nevertheless is not appealable.

Intervention by EEOC under either 42 U.S.C. § 2000e-5(f) (1) or Fed.R.Civ.P. 24(b) is committed to the discretion of the district court. Although the denial of a motion for leave to intervene is appealable where the intervenor claims intervention as a matter of right, where intervention is a matter within the discretion of the district court the order is appealable only if there is an abuse of discretion. Brotherhood of R. R. Trainmen v. Baltimore & O. R. R. Co., 331 U.S. 519, 524-525, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947), cf. Sam Fox Publishing Co. v. United States, 366 U. S. 683, 687-688, 81 S.Ct. 1309, 6.L.Ed.2d 604 (1961). Therefore, we must scrutinize the district court’s use of discretion to determine whether the order is appealable.

The district court’s discretion, at least under Rule 24(b), to grant or deny an application for permissive intervention includes discretion to limit intervention to particular issues. See Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 191-192 (2d Cir. 1970). We perceive no reason why the district court’s discretion under § 2000e-5(f) (1) should differ in this regard. The question remains whether the district court abused the discretion it was empowered to exercise.

The primary thrust of Van Hoomissen’s complaint in the original action was an objection to Xerox’s retaliation against him. It is true that he alleged that Xerox engaged in discriminatory hiring practices, but this allegation seems merely to provide the background against which the retaliation occurred. Van Hoomissen did not seek relief directed at rectifying the alleged hiring practices. Rather, he limited his prayer •for relief to harms caused by Xerox’s retaliation.

Under these circumstances it would not be unreasonable for the district court to conclude that the trial would be unnecessarily expanded beyond the scope of Van Hoomissen’s original retaliation complaint if the EEOC were permitted to intervene and allege discriminatory hiring practices as an independent claim. Since the district court acted reasonably to confine the scope of the trial to that presented by a fair interpretation of the original complaint, it did not abuse its discretion. The order is, therefore, not appealable under 28 U.S.C. § 1291.

We are aware that the Supreme Court has held that the requirement of finality be given a practical rather than technical construction and that the Court has permitted appeals under § 1291 where the order has not been absolutely final. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949). In Gillespie the Court held that an order striking most, but not all, of the claims raised in plaintiff’s complaint was, in the circumstances of the case, a “final” decision under § 1291. The Court relied heavily on the fact that the question of finality was a close one and a dismissal for lack of finality would work a hardship on the appealing party. We are not here faced with a similar situation. Even if we were to review the order on the merits, the issue would be whether the district court abused its discretion. Since we applied this standard to determine the order’s appealability, it is difficult to discern the hardship caused appellant by grounding our decision on a jurisdictional basis. Thus, unlike Gillespie, there is no compelling reason to resolve doubts in favor of the order’s finality.

In Cohen, the Court held that certain collateral orders, which would not merge with the final judgment and thus become reviewable, are appealable under § 1291 even though they are not final in the sense that they terminate the action with respect to the appealing party. The Court concluded that where these rights are “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated,” 337 U.S. at 546, review should be available under § 1291. Substantial reliance was placed on the fact that the rights claimed on appeal, dealing with the necessity to post security for expenses pending the outcome of the litigation, would be irrevocably lost if review were delayed until a final judgment was filed. Id. In essence, the Court deferred to the practicalities of the ease rather than the technicalities of § 1291.

While there are similarities between the instant case and Cohen, we are not persuaded that the situation is sufficiently compelling to demand a relaxation of the requirements of finality. Although the EEOC’s right to intervene may effectively be lost if review is delayed until the termination of the litigation, its right to press its discrimination charges against Xerox remains effective. Moreover, Brotherhood of R.R. Trainmen, decided only two years before Cohen, explicitly states that the order is not appealable absent an abuse of discretion, and there is nothing in Cohen evidencing an intent of the Court to withdraw from that position. Cohen represents an exception to the finality requirement of § 1291 justified by compelling equitable reasons. We are reluctant to expand the exception, lest it defeat the rule, without more compelling reasons than are presented by this case. This is especially true when to do so would require us to contravene the clear mandate of Brotherhood of R.R. Trainmen. Cf. also, Sam Fox Publishing Co. v. United States, supra at 687-688.

Second, we consider whether the order is appealable as an interlocutory order under 28 U.S.C. § 1292. The district court did not certify the appeal under § 1292(b), and it is clear that this court’s jurisdiction cannot be invoked on that basis. The EEOC does argue, however, that the order is appealable under § 1292(a)(1) as an order denying injunctive relief. Since the partial denial of leave to intervene effectively precluded granting certain injunctive relief requested in the complaint in intervention, the EEOC argues that the order falls within the scope of § 1292(a) (1).

The EEOC relies heavily on Spangler v. United States, 415 F.2d 1242 (9th Cir. 1969). There, the United States intervened as a matter of right in a school desegregation ease but was not permitted to assert claims for injunctive relief against certain schools within the district. On appeal, this court held that the order restricting the intervention effectively denied injunctive relief and was, therefore, appealable under § 1292(a)(1). Since the United States had an absolute statutory right to intervene, the order restricting the complaint in intervention to certain schools was a direct denial of injunctive relief.

Here, however, the district court had discretion concerning the EEOC’s ability to intervene. Thus, the order restricting intervention was essentially one concerning the scope of the litigation, and only collaterally did it deny a claim of injunctive relief. And contrary to the EEOC’s assertion before this court, the Spangler court relied on the fact that “[t]he order of the district court was more than a discretionary order controlling the litigation.” 415 F.2d at 1247.

If the EEOC’s position were adopted, a denial of leave to intervene permissively could be made appealable by the inclusion of a claim for injunctive relief. But this would tend to conflict with the mandate of the Supreme Court in Brotherhood of R.R. Trainmen that orders denying permissive intervention are appealable only where there is an abuse of discretion. This conflict can be avoided by concluding that while a denial of intervention as a matter of right is effectively a denial of injunctive relief where there is an appropriate prayer, a denial of permissive intervention is primarily an exercise of discretion in an effort to control the litigation and only collaterally concerned with the request for injunctive relief. Thus, we decline to extend the holding in Spangler beyond its factual context where intervention was claimed as a matter of right, and we conclude that § 1292(a)(1) does not, under the circumstances presented here, render the district court’s order appealable.

Having concluded that neither § 1291 nor § 1292 gives this court appellate jurisdiction to review the district court’s order, we need not ■ reach the issue whether the EEOC must refer the complaint to the appropriate state agency (as it might be required to do prior to commencing an independent suit) before intervening in this action.

The appeal is dismissed, and the case is remanded to the district court for further proceeding.

      . Van Hoomissen also sought relief under 42 U.S.C. § 1981 and state law.

      . The rule of Brotherhood of R.R. Trainmen ■ that the appealability of an order denying permissive intervention turns on the merits has been criticized, see Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 748-51 (1968); 3B Moore’s Federal Practice ¶ 24.15. Indeed, the Second Circuit has followed the suggestion of the commentators, Ionian Shipping Co. v. British Law Insurance Co., 426 F.2d 186, 188-189 (1970). Nevertheless, the Supreme Court has not suggested that the Brotherhood of R.R. Trainmen, rule has lost its vitality. Since the distinction is semantic and does not affect the actual interests of the parties, we see no compelling reason to circumvent the Supreme Court’s language, although we recognize the persuasiveness of the rule’s critics.

      . We do not imply that Cohen or Gillespie have lost vitality where their purposes and equitable considerations require their application.


author: PELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Michael DONNER et al., Defendants-Appellants.
    No. 18812.
    United States Court of Appeals, Seventh. Circuit.
    Argued Nov. 3, 1972.
    Decided May 3, 1974.
    Rehearing and Rehearing En Banc Denied July 10, 1974.

      James W. Williams, Chicago, 111., James E. Wilson, Richard M. Handlon, Midland, Mich., David J. Colman, Bloomington, Ind., Brent A. Barnhart, Indianapolis, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty., John E. Hirschman, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge.

      . 18 U.S.C. § 1361 reads :
      “Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, shall be punished as follows:
      If the damage to such property exceeds the sum of $100, by a fine of not more than $10,000 or imprisonment for not more than ten years, or both; if the damage to such property does not exceed the sum of $100, by a fine of not more than $1,000 or by imprisonment for not more than one year, or both.”

   PELL, Circuit Judge.

This is an appeal from a judgment of conviction entered in the Southern District of Indiana against eight defendants named in a four-count indictment. It has been brought to our attention that the defendant Trost is deceased. Subsequent to the conviction, the defendant Mulert became (and apparently remains) a fugitive. We consider the appeal of the remaining six defendants.

Count I of the indictment as returned by the Grand Jury charged the defendants with a conspiracy to violate 18 U.S.C. § 1361, 18 U.S.C. § 2071, and 50 U.S.C. App. § 462(a), all in violation of 18 U.S.C. § 371, the conspiracy statute. This count alleged, inter alia, that it was part of the conspiracy that the defendants would enter the Marion County, Indiana, headquarters of the Selective Service System in Indianapolis, Indiana, “and would remove and thereupon deface, mutilate, obliterate and destroy official files and records of the Selective Service System contained therein by ripping, tearing and applying black paint to said official files and records.”

Counts II, III, and IV respectively charged the defendants with substantive violations of 18 U.S.C. § 1361, 18 U.S.C. § 2071, and 50 U.S.C. App. § 462(a), the three sections of the statutes which were originally denominated as the objects of the Count I conspiracy.

All the defendants were found guilty in a jury trial on each count. Each defendant was sentenced to an executed sentence of four years on Counts I, III, and IV, the terms to run concurrently, plus a fine for each defendant of $5,000.00 under Count II.

I

Some time during the evening of October 31, 1969, or during the early morning hours of the following day, the Marion County, Indiana, headquarters of the Selective Service System was the subject of a destructive visitation. During the course thereof, some 135,000 registration cards were scattered about the office; file drawers were pulled open and the contents, including data furnished by registrants, were indiscriminately thrown about; numerous documents were tom and mutilated; and large ledgers containing classification records had had either the pages torn apart completely or the books had been fanned open and sprayed with black paint. Repairing the damage took until March 1970 at a cost of approximately $30,000.

The damage was first discovered by an Indianapolis policeman at approximately 6:00 A.M. on November 1. He had responded to a radio call, which had followed a telephone call a short time earlier to a newsman at a local radio-television station. Later the same day this newsman, as well as other persons in news media in the area, received by special delivery mail copies of a statement which had been affixed to the Selective Service office door at some time prior to the arrival of the policeman.

The statement generally was critical of the involvement of this country and its resources in foreign wars, particularly that in Vietnam, and referred to various claimed governmental discriminations. In part, the statment read as follows:

“The destruction of the records of the Indianapolis draft boards is an attempt to call to the attention of the American people the extent to which the government is betraying the ideals of justice and freedom embodied in the documents on which this country was founded.
“ . . . . This is not the first time that a draft board is destroyed by Americans concerned about the future of the nation. We hope that this action will encourage many others to take all the necessary steps to make this nation a republic of, by, and for the people.
“In due time we will reveal our identities. We are not criminals ashamed of our action. We are sure that the destruction of draft records has some of the qualities inherent in the actions of our founding fathers. We trust that the American people will vindicate us.
Beaver 55”

It appears that all of the defendants (the eight named in indictments subsequently issued) were in Washington, D. C., on the weekend of November 14-16, 1969, where they participated in a press conference at which they may have released materials identifying themselves as the Beaver 55. Inasmuch, however, as this appearance does not seem to loom large in the contentions of the parties, we will proceed to the city of Indianapolis, where a press conference was held on November 20, 1969. All eight defendants were present and sat at a table in the front of a room before some 40 persons, half of whom were from the news media.

Defendant Mack, after welcoming those in attendance, said, “I will first introduce the members of the group and then I will read a statement that we have prepared and then the whole group will be open to questions from the press.”

After the introductions by name and address, Mack read a statement which in part was as follows:

“We are the Beaver 55. We are single and married, workers and students, young and old. We started from different parts of the country and ended up together in Chicago. We are together in our actions, in our love and our responsibility — a community of active resistance. We claim responsibility for the actions against the Selective Service offices in Indianapolis, Indiana, on October 31.
“Some of us completely destroyed 1-A and 1-A delinquent draft files and ledger books in 44 local boards in the Indianapolis Metropolitan Area.
“We have done this because, we are not blinded by the lies that corporations attempt to pawn off on us.
******
“We have done this because, we will no longer tolerate this madness. We will no longer tolerate any form of conscription to kill. We will no longer tolerate the Christians’ ‘just war’, the liberals’ cries for ‘honorable peace.’ We put our hope in life,- and our lives in hope and will continue to actively resist any system which obstructs those goals.
******
“These actions must continue; the spirit of the people will not be overcome.
“PEACE, Michael Donner, Jane Kennedy, Paul Mack, Connie Grubbs McNamara, Marty McNamara, Jo Ann Mulert, Tom Trost, David Williams.”

The press conference then continued in question-and-answer form. All eight of the persons whose names appeared on the statement, which was not only read aloud but was distributed to those present, remained throughout the somewhat lengthy session. Five of the six appellants answered questions or volunteered statements. The husband of the sixth appellant, who did not speak, participated.

Throughout the session, the word “we” was frequently used, and we discern no direct disclaimer of responsibility for the particular action at the Indianapolis Selective Service board offices. Thus, the following pronouncements are noted:

“We are perfectly prepared to pay, or to serve our time in jail, because we expect that, that is what will happen to us. . “ [I] t’s not a matter of guilty or innocence, it’s a matter of responsibility. We claim that we are responsible for our actions. . . .We hope that by our action and our willingness to go to jail other people will see that this is the kind of commitment to the movement. [W]e destroyed paper and paperwork . . . property that has no right to exist . . . and taking that property . . . destroying that property, that paperwork, you know, is not violent at all. [T]o talk about why we have done what must seem to many many people an extreme action. [0]urs is thought of as a vanguard action. . . . We are the Beaver 55. . [Draft status] was in no way a part of my consideration . . . was not a factor in making the decision. Well, these eight people came together and they felt that we should take this type of action and we did. There have been a number of other actions in other cities where other people have come together and taken similar actions. . . . Everybody’s bank account has been dwindled rapidly as the result of having to be on the road and being involved in this sort of thing. . . . [Y]ou are asking why we revealed our identities. [I]n reference to his question about how we only have eight, it’s because we have known each other and we have been a community for a long time. . . . [I]nvolvement by American people who are concerned has to go farther than marching. [W]e have found that definitely more extreme measures are going to have to be taken and that is why we have taken this action. . The draft files that were destroyed in Indianapolis, no person can be legally inducted from the metropolitan area of Indianapolis until all these files are restored in their exact order, which is going to take them a long, long time; especially because some of these files are missing and I think that speaks, that also, not only to the fact that we can be effective through this kind of disruption

The above statements were interspersed in a context of condemnation of the federal government, particularly as it was manifested in the Selective Service System and because of its involvement in the Vietnam war. The question before the trial jury, hqwever, was not whether the motivation of the eight was sincere, nor indeed whether their condemnations might or might not have been justified. The jury was to determine whether the defendants were guilty or innocent of the crimes charged in the indictment. While the words spoken at the press conference were not entirely free of elements of tergiversation, the utterances in the joint context were susceptible of conveying a clear message that there was participation by all eight in the planning of the destructive action, and its actual accomplishment, as principals or aiders and abettors.

In addition, other evidence introduced as to individual defendants justifies our holding, which is that we cannot say that the jury’s verdict was not supported by sufficient evidence of guilt. We turn then to whether there may have been other reasons for reversing the judgments of conviction. The claimed willingness to endure incarceration for their cause having now apparently flagged, we are presented with several claims of error.

II

However, before considering the contentions advanced by the appellants, it is necessary that we, on our own motion, determine whether reversal is required by the decision of this court in United States v. Baranski, 484 F.2d 556 (7th Cir. 1973). In that case, argued and decided subsequent to oral argument in the present case, we reversed the convictions of defendants who had gone to an Illinois draft board during office hours and had opened drawers and filing cabinets, pulled some records and poured animal blood over them. The basis of the reversal was the unconstitutionality of the portion of 50 U.S.C. App. § 462(a) that the defendants here are charged with violating substantively in Count IV and with conspiring, inter alia, to violate in Count I.

This prima facie similarity is sufficient to call for a more detailed analysis of Baranski to determine the extent to which it is controlling in the present appeal, at least insofar as Counts I and IV are concerned.

In Baranski, as in the present ease, the defendants were indicted in four counts, one conspiracy count and three substantive counts, involving the same three sections of the statute as here. While there may have been evidence that the defendants in Baranski committed acts violative of the three statutory sections charged substantively — the Government argued strenuously that there was no question of it — the jury acquitted them on all three of these counts, and the posture of the case in this court, therefore, was in effect that acts violative of the three sections of the statutes charged substantively had not been sufficiently proven. The Baranski jury did convict the defendants of conspiring to violate the three statutory sections which they were found not to have violated in fact.

It, of course, is recognized that the crime of conspiracy is concerned with an agreement to violate the law and does not require accomplishment of the violation agreed upon in order for a defendant to be found guilty. It is clear in Baranski that the events in the draft board did not happen spontaneously but by agreement among the defendants. The planning was specific, including an advance call to a member of the news media who accompanied the defendants to the board office. The question then remained just what did the Baranski defendants agree to do if they did not agree to hinder and interfere with the administration of the Military Selective Service Act by force and violence (50 U.S.C. App. § 462(a)), nor agree to commit willful damage to property of the United States (18 U.S.C. § 1361), nor agree to remove, mutilate, and destroy records of the United States (18 U.S.C. § 2071). The record in Baranski provided no basis for our concluding that the defendants had not accomplished at least one object of their conspiracy agreement.

The substantive § 462(a) indictment count before the Baranski jury charged hindrance and interference “by force, violence and otherwise.” The conspiracy count merely charged that one of the statutes the defendants had conspired to violate was § 462(a). The statute does not use the word “and” but is phrased “by force or violence or otherwise.” We were thus compelled to reach the conclusion in Baranski that the jury may have based, and probably did base in view of their verdicts of not guilty on the substantive counts, their guilty verdict on “otherwise” conduct, a term sufficiently broad to sweep within its ambit protected First Amendment communication. This interpretation was fortified by the prosecutor’s argument to the jury that force and violence were not required for conviction.

We do not have this problem in the present case. The jury found, and its finding was supported by ample evidence, that the defendants were guilty of substantive violations of 18 U.S.C. § 2071 (mutilation, etc., of records and books filed and deposited in a public office of the United States). With the specific substantive violations found to have existed, that these did not just occur but came about through advance agreement, i. e., a conspiracy, is obvious.

We therefore find applicable here, as we could not in Baranski, the principle enunciated in United States v. Tanner, 471 F.2d 128, 139-140 (7th Cir. 1972), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220, i. e., that convictions on a conspiracy count are not affected “so long as any one of the objects of the conspiracy is unchallenged.” In Baranski, the defendants could not challenge the fact that they were guilty of conduct which hindered and interfered “otherwise” than by force and violence. We therefore hold that Baranski does not require a reversal of the conspiracy count in the present case.

While beyond any argument in the present case there was substantial evidence of hindrance and interference by force and violence to support a jury conviction under the substantive count based on § 462(a), our Baranski problem on Count IV is not the same as that which relates to the conspiracy count. Here, as in Baranski, the substantive crime is charged as having been accomplished “by force and otherwise.” It is clear that while the defendants in the present case were committing destructive acts clearly violative of the force and violence portion of § 462(a) they were also engaged in an attempt to communicate to the public their opinions on the wrongness of certain governmental activities.

We find guidelines for the disposition of the present issue in Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). In that case, involving the burning of an American flag, the Court, speaking through Mr. Justice Harlan, stated, “Moreover, even assuming that the record precludes the inference that appellant’s conviction might have been based solely on his words, we are still bound to reverse if the conviction could have been based upon both his words and his act.” Id. at 587. (Emphasis in the original.) Here, we cannot say that on the particular substantive count the jury may not have convicted on the combination of words and acts. We are not at liberty as we are in the case of the conspiracy count to disregard a particular object of the conspiracy where there is an amplitude of proof of agreement on other viable and constitutionally permissible objects. We therefore reverse the conviction on Count IV.

Ill

Turning to the contentions advanced by the defendants, we first address ourselves to the argument that their convictions on the conspiracy count should be overturned because of a variance from the indictment by the Government in its proof. Each of the seven overt acts alleged in support of the conspiracy count occurred, by the terms of the indictment, “[o]n or about October 31, 1969.” The Government, nonetheless, and the trial judge as well, took the position at trial that the press conference of November 20th was arguably a continuation of the conspiracy made out in the indictment. Relying upon the co-conspirator exception to the hearsay rule, the district court accordingly refused to uphold the defendants in their objection to the general admission of inculpatory statements made by some of them individually on November 20th, and the court left it to the jury to decide whether the conspiracy charged was in effect on that date.

The true inquiry in cases like this is not merely whether the proof at trial wandered from the charges made in the indictment. To be error, the variance must, in addition, be such as to “affect the substantial rights” of the accused. Berger v. United States, 295 U. S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The cases have found this in situations where a defendant is surprised by the introduction of evidence at trial which is detrimental to his defense, or is left unprotected against a second prosecution for the same offense. United States v. Cassell, 452 F.2d 533, 536 (7th Cir. 1971).

The former circumstance is the one which defendants liken to their case; had they known, they assert, that the indictment eneompássed a conspiracy continuing up to and beyond the day of the press conference, their mode of defense would have been “substantially different.” We cannot agree, however, that any rights of the defendants were substantially affected. First, there can be little doubt that counsel for the defendants were aware, even before trial, that the Government had evidence of the press conference and would seek to introduce it at trial. If surprise arose, it was in connection with the legal theory upon which the Government sought to introduce the evidence, not with the fact of its attempted introduction. And the record is clear that defense counsel, upon being apprised of the continuing conspiracy view of the prosecution, was amply aware of its significance to the defense, for objection was timely made and overruled. Further, the fact that defendants were deprived, by the claimed obscurity of the indictment, of an opportunity to file a motion to quash the conspiracy count in part is not a fit basis upon which to find prejudice to them, for they exercised what was essentially the same option midway through trial when they objected to the introduction of evidence of the press conference. The trial judge overruled them because he thought that the scope of the conspiracy was an issue for the jury, not because defendants had earlier failed to file a motion to quash.

The defendants on appeal state that while they have no quarrel with the use by the prosecution at trial of press conference statements insofar as those statements were used in an attempt to prove that the defendants admitted having committed the acts of destruction of Government records on October 31-No-vember 1, 1969, error existed in the jury’s being permitted to consider the possibility of a continuing conspiracy. The argument here relies on recent First Amendment cases, such as Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); defendants assert, that in the press conference they were within the protection of the First Amendment, merely advocating action which did not present a clear and present danger.

While that which occurred at the November 20th press conference constituted words rather than action, constitutionally protected speech may nevertheless be an overt act in a conspiracy charge. United States ex rel. Epton v. Nenna, 446 F.2d 363, 368 (2d Cir. 1971), cert. denied, 404 U.S. 948, 92 S.Ct. 282, 30 L.Ed.2d 265.

We conclude that the variance in proof from the indictment was at worst a harmless surprise to the defendants. Reversal will not stand on this ground.

The defendants argue that even though the rules of conspiracy law allow conspirators to be found guilty on the basis of acts of their co-conspirators, analysis of the evidence as to the individual defendants is required. What the defendants seem to be seeking here is to have us weigh the evidence, particularly the alibi evidence. We do not deem this to be the function of the reviewing court once we have determined, as we have here, that there was not such an insufficiency of evidence as to require reversal.

The above contention of the defendants is based upon the premise that the district court in instructing on conspiracy utilized what is sometimes referred to as a Pinkerton instruction. The court also instructed according to the aiding and abetting statute, 18 U.S.C. § 2.

In Pinkerton v. United States, 328 U. S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), two brothers were convicted of conspiracy to evade taxes and of specific tax evasions. One of the brothers, Daniel, took an appeal to the Supreme Court, arguing that the other brother had committed the substantive offenses while he, Daniel, was in jail, and that the trial judge wrongly instructed the jury that it could convict him of the tax evasions of his brother if he were found to have conspired with his brother while in jail. The Supreme Court upheld the instruction, stating:

“[W]hen the substantive offense is committed by one of the conspirators in furtherance of the unlawful project [t]he criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy .... If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.” 328 U.S. at 647.

The defendants do not challenge the Pinkerton holding as incorrect law nor do we consider it as not having continuing viability. Our question here, however, is initially as to the correctness of the premise that a Pinkerton instruction was given. The portion of the court’s extensive and thorough instructions which the defendants apparently believe incorporated the Pinkerton holding was contained in the court’s instruction No. 33:

“You are not to consider what one person may have said or done in concluding whether or not another person was a member of the conspiracy partnership ; his or her membership must be established by evidence as to his or her own conduct, what he or she said or did in becoming a member. But, if you find from the evidence beyond a reasonable doubt that the alleged conspiracy was formed and existed and that two (2) or more of the alleged conspirators were members thereof, then the alleged acts and omissions thereafter, if any, knowingly done, and the statements thereafter, knowingly made, if any, by any member of the alleged conspiracy, may be considered by you as evidence in the case as to any of the other members of the alleged conspiracy, even though such acts and oiqissions and statements may have occurred in the absence and without the knowledge of such others, provided such acts or omissions and statements were knowingly done, omitted or made during the continuance of such conspiracy before its termination and in furtherance of one or more of the alleged objects or purposes of the alleged conspiracy. Otherwise, any admission or incriminatory statement made outside of Court by one person may not be considered as evidence against any person who was not present and heard the statement made.”

We find nothing more in this portion of the instruction than a statement of well-established law relating to the co-conspirator exception to the hearsay rule. See, e. g., McMahan v. United States, 424 F.2d 1216, 1219 (7th Cir. 1970), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55.

Even if this portion of the jury charge could be construed to present the phase of Pinkerton adverted to above, in the absence of a reversal of the conspiracy conviction we would find no reversible error in giving such an instruction.

Even if the conspiracy convictions were to be reversed, the particular instruction here given would be insufficient to taint the convictions based upon substantive Counts II and III. Instruction No. 33 pertains only to the conspiracy count, and we will not assume that the jury would have interpreted • it otherwise. While the particular instruction is long and complex, occupying some 12 pages of the transcript, we cannot give it any reasonable construction other than that it pertained solely to the ramifications of the conspiracy count and conspiracy law and was not applicable to the jury determination of the issues presented by the substantive counts. Further, the jurors did not have to carry the intricate legal message to their deliberation room in their memories as the court sent the instructions to the jury room. Finally, we note that elsewhere in the instructions the jury was admonished that “[a] voluntary admission or confession after the commission of a crime and in the case of the crime of conspiracy, after the termination or abandonment thereof, constitutes evidence only against the person making it. It must not be considered as evidence against a co-defendant, and must be disregarded by the jury in determining the guilt or innocence of a co-defendant.”

We have not concerned ourselves with defendant Mack’s solo appearance on a radio talk show during which he responded to a question by stating, “One action I took was destroying draft files in Indianapolis.” Testimony as to this was admitted as to Mack alone, and the other defendants were adequately protected by the admonitory instruction just quoted.

Defendant Williams contends that there was reversible error in the judge’s reference to the source of the name “Beaver 55” as being a publication which Williams had worked on with his mother. Whether this was a proper inference from the evidence we need not determine. The statement was made out of the hearing of the jury and could not be the basis of a reversal.

Williams also urges reversal because of the exclusion of testimony by James Douglass, a visiting professor on Nonviolence at the University of Notre Dame. After the professor had testified as to his background, a hypothetical question was posed to him involving some of the facts brought out in evidence concerning the evening of October 31-November 1 and the November 20th press conference. At the conclusion of the statement of hypothetical facts, he was asked whether he had an opinion which “could explain their quote [at the press conference] ‘claiming responsibility’ under those circumstances.” Objection was made to the question on the ground it did not include all of the facts that had been presented in evidence, that it invaded the province of the jury, and that some of the facts were not accurately stated. While not deciding that more than one of the grounds of objection may not have been well taken, we note that the trial court rested the sustaining of the objection on the basis that explaining what the defendants meant by “claiming responsibility” was not the subject for expert testimony. We agree. Further, any claim of reversible error is obviated here by the fact that there was no offer to prove what the testimony would be and the fact that the witness was withdrawn with the observation that he might be recalled. He was not thereafter returned to the stand.

Williams also asserts in support of his own nonparticipation in the destruction occurring at the draft board offices certain alibi testimony and the claim that the statement passed out at the press conference which he attended only had his typed name at the end and no handwritten signature. However, two FBI agents testified that he had said he had signed the Beaver 55 statement. The argument appears to ignore the applicability of the aiding and abetting statute, and, in any event, a question of credibility was presented which was resolved against Williams.

Williams further contends that there was reversible error in the failure of the district court sua sponte to sever him from the trial. Factually, this claim appears to be based on the situation that Mack’s confession was put into evidence, Mack did not take the stand, and all of the defendants were represented jointly by a team of three attorneys.

The present claim of error is primarily predicated on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960), as cited and quoted in United States v. Gougis, 374 F.2d 758 (7th Cir. 1967).

We do not find Bruton applicable. In that case, the Supreme Court concluded that cautionary instructions given by the trial court to the jury with respect to disregarding implicating statements of a co-defendant were ineffective and could not overcome the great risk that the defendant’s case would be prejudiced because the jury would or could not follow the instructions. This issue was raised in Howell v. United States, 300 F.Supp. 1017 (N.D.Ill.1969), and was thoroughly analyzed by Judge Marovitz, who, inter alia, pointed out that Bruton explicitly stated that no exception to the hearsay rule was involved in the case before the Court. In affirming the Howell conviction, this court expressly adopted Judge Marovitz’s opinion and approved the réasons set forth in his opinion. Howell v. United States, 442 F.2d 265, 275 (7th Cir. 1971). In the present case, as we have already observed, the well-established exception to the hearsay rule applicable to a co-conspirator’s statement is involved.

It is clear from Schaffer-Gougis that even though a defendant does not move for severance, which is the situation in the present case, the trial judge has a continuing duty to sever if prejudice appears during trial in a situation where proof of the conspiracy count has failed on a multi-count indictment. Here, the conspiracy count did not fail. It is settled that severance rests in the discretion of the trial judge, subject to correction only if there has been an abuse of discretion. United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). The unsupported possibility that favorable testimony might be elicited from a separated co-defendant, who thereby could be used as a witness, does not make denial of a motion for severance erroneous. United States v. Johnson, 426 F.2d 1112, 1116 (7th Cir. 1970), cert. denied, 400 U.S. 842, 91 S.Ct. 86, 27 L.Ed.2d 78. No greater duty should be imposed in the absence of a motion. Williams, while claiming prejudice, provides little, if any, support for the claim. Under these circumstances we are not prepared to hold that there was an abuse of discretion in not severing Williams. United States v. Kahn, 381 F.2d 824 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661.

While the defendant Mack adopted by reference all of the issues raised in behalf of his co-defendants, his brief in this court was devoted solely to a Sixth Amendment claim of deprivation of effective assistance of counsel. From the record it appears that all defendants, including Mack, retained two Indianapolis attorneys to represent them. During the pretrial period various motions were filed by the attorneys on behalf of Mack individually, particularly with regard to the amount of his bond and his desire to travel outside the jurisdiction; On the first morning of trial, the judge observed that a Chicago attorney, Julius Sherwin, had entered an appearance for all of the parties except Mack. The attorney stated he now proposed to appear for Mack also. The trial judge called Mack to the podium and interrogated him as to his wishes that this attorney also represent him, whether he was asking for a continuance, whether he had conferred with the attorney, whether there had been sufficient consultation time, and whether he was ready for trial. Mack responded in the affirmative. Thereafter, during the course of the trial, Sherwin made a not inconsiderable effort to keep out of evidence highly incriminating materials seized at Mack’s apartment, a matter as to which only Mack had standing.

While it is no doubt true that prejudice to a defendant from the failure to have effective assistance of counsel results whether counsel is court-appointed or selected by the accused, unless there are facts constituting a waiver, Craig v. United States, 217 F.2d 355, 359 (6th Cir. 1954), we need not make any inquiry as. to whether there was any waiver resulting from the manner of retention of counsel or from the failure to raise this question in the trial court. We here find no demonstrable prejudice.

Per se violation of the Sixth Amendment does not result from joint representation of co-defendants. United States v. Williams, 429 F.2d 158, 160 (8th Cir. 1970), cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253. The claimed prejudice was directed at remarks made by Sherwin, who apparently acted as chief trial counsel, although the Indianapolis attorneys also participated in the trial throughout its duration. It has not been demonstrated that any of the remarks were made in the presence of the jury; they occurred during colloquies between Sherwin and the judge. Our examination reflects that some of the remarks did partake of candor, but honesty and forthright recognition of clearly established facts may well as a matter of trial strategy provide a better defense than a dissimulative distortion of that which is patent and virtually beyond argument.

There can be no argument that the clearest case of guilt established by the evidence was that against Mack. As this court said in a comparable case, United States v. Gallagher, 437 F.2d 1191, 1194 (7th Cir. 1971), cert. denied, 402 U.S. 1009, 91 S.Ct. 2190, 29 L.Ed.2d 430, “The mere fact that the evidence against appellant’s co-defendant . is stronger than that against the appellant does not indicate, much less demonstrate, the existence of a conflict of interest between the defendants.” In that case, as in the present case, the particular appellant was apparently the dominant member of the conspiracy and played a more prominent role in carrying out the illegal activities involved. This court held that because a difference in the weight of the evidence against co-defendants may cause counsel to speculate as to the trial strategy he should employ does not itself serve to establish that counsel is unable effectively to represent both defendants.

Under the tests laid down in United States v. Stevens, 461 F.2d 317, 319 (7th Cir. 1972), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 218, we decline to engage in a process of critiquing as to matters of trial conduct and tactics adopted pursuant to defense counsel’s professional opinion on the merits of the case. We find no travesty of justice here. If, as Mack seems to contend now, the attorney was throwing him to the wolves in favor of his other clients, it is not without significance on the lack of prejudicial effect that all of the other defendants also were found guilty.

We have considered and find without merit other contentions raised by the appellants, which contentions for the most part are variational arguments of those which we have resolved hereinbefore. While perhaps the cessation of the war effort in Vietnam has brought that conflict and its divisiveness into a more objective focus, we still find appropriate to our present consideration and adopt the language with which Judge Sobeloff dealt with the underlying moral and philosophical problems of cases such as the present one in United States v. Moylan, 417 F.2d 1002, part III, at 1007-1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). We agree that “the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.” Id. at 1008.

Accordingly, the judgment of conviction on Count IV is reversed and the judgments of conviction on Counts I, II, and III are affirmed.

      . 18 U.S.C. § 2071 reads in pertinent part:
      “(a) Whoever willfully and unlawfully . . . mutilates, obliterates, or destroys, or attempts to do so, ... any record, proceeding, map, book, paper, document, or other thing, filed or deposited ... in any public office . . . of the United States, shall be fined not more than $2,000 or imprisoned not more than three years, or both.”

      . 50 U.S.C. App. § 462(a) reads, in pertinent part, that
      “ . . . any person or persons who shall knowingly hinder or interfere or attempt to do so in any way, by force or violence or otherwise, with the administration of this title ... or the rules or regulations made pursuant thereto, or who conspires to commit any one or more of such offenses, shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . .”

      . The allegation in Count I that defendants had conspired to violate 18 U.S.C. § 1361 was excised from the indictment by the district court because the dollar amount of the damage to government property was not specified in the count.

      . The statement also contained a reference to “some of us” entering the computation research center of Dow Chemical Company in Michigan and destroying magnetic tapes and processing cards there. The Michigan portion was excised when evidence was submitted to the jury regarding the conference and the statement.

      . The district court in its thorough and searching instructions charged the jury as to various aspects of “admissions” attributable to the party making them, including, “A person accused of a crime cannot be convicted upon trial upon a voluntary or involuntary admission. A voluntary admission must be corroborated by other credible evidence.”

      . As previously noted, the jury in the present ease also found the defendants guilty of substantive violations of 18 U.S.C. § 1361 (depredations against property of the United States). This conviction does not enter into our consideration of the issue before us inasmuch as the district court excised that particular statute as an object of the conspiracy from the indictment. While the inclusion of § 1361 would have strengthened the parallelism and emphasized the differences between the present case and Baranski, the exclusion does not weaken the significance of the differences that do exist.

      . Even if the conspiracy were assumed arguendo to have been confined timewise to the date specified in the indictment, a strong case would be presented for a group confession under the circumstances of the joint press conference and its connotations of full ratification by all present of all that was said. In such case it would appear that the ratification would reach the agreement involved in the conspiracy as well as showing either direct participation or aiding and abetting in the substantive crimes. We do not, however, need to decide this issue.

      . 18 U.S.C. § 2(a) :
      “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”

      . “Appellate courts should be slow to impute to juries a disregard of their duties . ” Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 255, 77 L.Ed. 439 (1933).

      . A statement was made during a side bar conference indicating a desire to present evidence as to the philosophy, purposes, and methods of a Christian non-violent movement. While such evidence might be explicative of the motivation of the defendants and even lend some apparent support to their position that what they were doing was for the good of humanity as they conceived it, the statement does not validate as admissible evidence an expert opinion as to what the defendants may have meant by “claiming responsibility.” The issue at the trial was not defendants’ motivation but whether they had violated certain statutes of the United States.
      In United States v. Eberhardt, 417 F.2d 1009, 1012 (4th Cir. 1969), cert. denied, 397 U.S. 909, 90 S.Ct. 907, 25 L.Ed.2d 90 (1970), the defendants in a factually comparable case were permitted to present evidence that their actions were taken pursuant to a good faith belief in the immorality and illegality of the Vietnam war, but they were not allowed to present expert testimony as to the reasonableness of those beliefs.

      . While the brief for Williams refers to the statements of several of the defendants, primary emphasis appears to be placed on Mack’s confession, presumably referring to Mack’s solo radio talk show appearance subsequent to the press conference during which he made a first-person confession. Evidence as to this confession was admitted as to Mack alone and the jury was properly instructed.