author: DONALD RUSSELL, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. William N. ANDERSON et al., Appellants.
    No. 72-1069.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 8, 1973.
    Decided June 26, 1973.

      Philip A. Baer, Huntington, W. Va. (Baer & Napier, Robert H. Burford and Beckett, Burford & James, Huntington, W. Va., on brief) for appellants.
    Robert B. King, Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief) for appellee.
    Before WINTER and RUSSELL, Circuit Judges, and MURRAY, District Judge.
   DONALD RUSSELL, Circuit Judge:

The defendants were convicted by a jury of violating Section 241, 18 U.S.C., which makes it a crime for two or more persons to conspire to injure any citizen in the free exercise or enjoyment of his federal constitutional rights. The prosecution arose out of a primary election in Logan County, West Virginia. The offense involved the alleged “stuffing” of the ballot box with illegal ballots at one of the voting precincts during such election. The defendants have appealed. We find no error in the trial below and affirm.

I.

The defendants level their first attack against the indictment itself. According to their argument, the indicment consisted of “only legal conclusions”, was “totally devoid of any allegation of fact constituting or describing the offense intending (sic) to be charged”, and was defective for failure “to allege that the conspiracy related to votes for candidates for Congress and the United States Senate.” Even a hasty reading of the indictment, however, demonstrates that this claim is, to use the defendants’ own phrase, “totally devoid” of merit. The indictment explicitly alleged that the election was “held within the State of West Virginia for the purpose of nominating candidates for the offices of United States Senator, Representative to Congress, and various state and county public offices.”

It identified the election precinct where the alleged conspirators proposed to accomplish their illegal acts (i. e., “the Mount Gay precinct”) and described with as much particularity as the indictment in United States v. Saylor (1944) 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341, the wrongful acts intended to be accomplished by the conspirators in such precinct (i. e., “to cause fraudulent and fictitious votes to be cast in said precinct”). The indictment thus stated an offense under Section 241 with as much precision as was required. Fields v. United States (4th Cir. 1955) 228 F.2d 544, 545-546, cert. denied, 350. U.S. 982, 76 S.Ct. 468, 100 L.Ed. 850; United States v. Morado (5th Cir. 1972) 454 F.2d 167, 169.

II.

In addition to their motion to dismiss on the ground of defective indictment, the defendants filed successive motions for a bill of particulars, for a preliminary hearing, for access to the grand jury testimony, for copies of all statements of any of the defendants in the possession of the Government, and finally “for full disclosure as provided under the Omnibus Hearing Project”, including “all documents and exhibits expected to be used in the said trial”, any records or statements in the Government’s files that will “tend to exculpate, absolve or exonerate any one of the defendants,” and “a list of anticipated witnesses expected to be used, together with a sentence summary of their testimony.” They predicated their motion “for full disclosure” on the assertion “that the indictment is so vague and indefinite that it is impossible adequately to prepare a defense or properly advise their clients”, a claim which represented substantially the basis for their motion to dismiss and a claim which we have already found without merit. The defendants made no claim of “particularized need” in their other motions. In opposing the motions, the Government stated that it had in its possession no written statements of the defendants and that it had no “exculpatory material” in its files. All of the motions were denied by the District Court. We find no error in such denials, and discuss them seriatim.

(a) Motion for a Bill of Particulars

A motion for a bill of particulars is addressed to the sound discretion of the trial court, and, absent a showing of abuse of discretion, the ruling of the trial court will not be disturbed on appeal. United States v. Dulin (4th Cir. 1969) 410 F.2d 363, 364; United States v. Baggett (5th Cir. 1972) 455 F.2d 476, 477; United States v. Cooper (10th Cir. 1972) 464 F.2d 648, 654; United States v. Gray (8th Cir. 1972) 464 F.2d 632, 635. Ordinarily, the function of a bill of particulars is not to provide “detailed disclosure of the government’s evidence in advance of trial” but to supply “any essential detail which may have been omitted from the indictment.” Dillen v. Wainwright (5th Cir. 1971) 449 F.2d 331, 332; United States v. Cansler (7th Cir. 1969) 419 F.2d 952, 954; Hemphill v. United States (8th Cir. 1968) 392 F. 2d 45, 49, cert. denied 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149. The information sought by the defendants in their motion was the entire range of evidence on which the Government relied, including the names of all witnesses to be used by the Government. Denial of such a disclosure, “whether requested by motion for Bill of Particulars under Rule 7(f), or by a motion for discovery under Rule 16(b), Federal Rules of Criminal Procedure”, will not be considered an abuse of discretion on appeal. United States v. Baggett, supra (455 F.2d at 477). Particularly is this true where the Government, while resisting the broad scope of the motion, expresses, as it did in this case, its willingness “to provide the defendants with more details” should the defendants “frame their inquiries in such form that they may be answered without calling upon the Government to divulge its entire case.” The defendants made no effort to take advantage of this offer of the Government. These circumstances in particular preclude a successful contention by the defendants that the trial court abused its discretion.

(b) Demand for a Preliminary Hearing

Nor can a defendant demand a preliminary hearing after indictment, which was the posture of the prosecution when the defendants moved for a preliminary hearing. Section 3060(e), 18 U.S.C.; United States v. Mackey (4th Cir. 1973) 474 F.2d 55, 57; United States v. Farries (3d Cir. 1972) 459 F. 2d 1057, 1061, cert. denied 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145; United States v. Coley (5th Cir. 1971) 441 F.2d 1299, 1301; United States v. Chase (4th Cir. 1967) 372 F.2d 453, 467, cert. denied 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626; Braxton v. Peyton (4th Cir. 1966) 365 F.2d 563, 565, cert. denied 385 U.S. 939, 87 S.Ct. 306, 17 L.Ed.2d 218. The purpose of a preliminary hearing is not to provide a discovery mechanism for the defendant, though this may be a collateral or incidental benefit from the hearing, but merely to determine “whether probable cause exists to bind an accused for action by a grand jury.” United States v. Chase, supra, 372 F.2d at 467; United States v. Mackey, supra, 474 F.2d at 57; United States v. Brumley (10th Cir. 1972) 466 F.2d 911, 915; cf., Ross v. Sirica (1967) 127 U.S.App.D.C. 10, 380 F.2d 557. After indictment, a preliminary hearing "would be an empty ritual”. Barber v. United States (4th Cir. 1944) 142 F.2d 805, 807, cert. denied 322 U.S. 741, 64 S.Ct. 1054, 88 L.Ed. 1574; Sciortino v. Zampano (2nd Cir. 1967) 385 F.2d 132, 133, cert. denied 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872; United States v. Daras (9th Cir. 1972) 462 F.2d 1361, 1362, cert. denied 409 U.S. 1046, 93 S.Ct. 545, 34 L.Ed.2d 497; Crump v. Anderson (1965) 122 U.S.App.D.C. 173, 352 F.2d 649, 655-656; Dillard v. Bomar (6th Cir. 1965) 342 F.2d 789, 790, cert. denied 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 123; Vincent v. United States (8th Cir. 1964) 337 F.2d 891, 896, cert. denied 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281, reh. denied 381 U.S. 947, 85 S.Ct. 1775, 14 L.Ed.2d 713.

(c) Discovery of Grand Jury Testimony

Except for his own testimony, a defendant is not entitled of right to pre-trial access to the testimony before the grand jury: The obligation of the Government is merely to make available to the defendant the testimony of a witness before the grand jury at the conclusion of the direct testimony of such witness at trial and then only if the defendant shows a “particularized need” for such disclosure. This was our holding in United States v. Johnson (4th Cir. 1969) 419 F.2d 56, 59, cert. denied 397 U.S. 1010, 90 S.Ct. 1235, 25 L.Ed.2d 423. Even where a defendant alleges a “particularized need” (which the defendants have not done in this case), the denial of access at trial will be disturbed on appeal only if the finding by the trial court against the claim of “particularized need” was clearly erroneous. United States v. Bryant (4th Cir. 1966) 364 F.2d 598, 600; Posey v. United States (5th Cir. 1969) 416 F.2d 545, 557, cert. denied 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127, reh. denied 397 U. S. 1031, 90 S.Ct. 1267, 25 L.Ed.2d 544. This ruling conforms with the Jencks Act, as amended in 1970, Section 3500(e)(3), 18 U.S.C. and is in line with the majority rule as established in the several circuits. United States v. Daras (9th Cir. 1972) 462 F.2d 1361, 1362, cert. denied 409 U.S. 1046, 93 S.Ct. 545, 34 L.Ed.2d 497; United States v. Quintana (10th Cir. 1972) 457 F.2d 874, 878, cert. denied 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; United States v. Doe (1st Cir. 1972) 455 F.2d 1270, 1274; United States v. Harflinger (8th Cir. 1970) 436 F.2d 928, 935, cert. denied 402 U.S. 973, 91 S.Ct. 1660, 29 L. Ed.2d 137; United States v. Bass (8th Cir. 1973) 472 F.2d 207, 210; see, also, Proposed Amended Rule 16 (VI) (3), Federal Rules of Criminal Procedure, 48 F.R.D., at 590.

(d) Motion for Full Disclosure as Part of Omnibus Pre-trial Proceedings

Finally, the defendants sought by their “motion for full disclosure” under Rule 16(b) to compel the pre-trial production by the Government of all documents to be introduced and a list of all witnesses to be used, along with a summary of their testimony. While, since the 1966 amendment, courts have been more liberal in their grant of relief under Rule 16(b), the granting of relief under that Rule remains “a matter within the sound discretion of the district court” and the action of the district court, in denying such relief, “is reviewable only for an abuse of discretion.” United States v. Cole (8th Cir. 1972) 453 F.2d 902, 904; United States v. Pope (7th Cir. 1969) 409 F.2d 371, 374. As a matter of fact, the Government asserted that all documents to be introduced by it were included in the record of the election contest, which it tendered to the defendants. As for the demand of the defendants for a list of the Government’s witnesses, they were not entitled of right, in this non-capital case, to such pretrial disclosure. United States v. Chase, supra (372 F.2d at 466); United States v. Elmore, supra (423 F.2d at 779, n. 7); United States v. Harflinger, supra (436 F.2d at 936); United States v. Wolfson (2nd Cir. 1969) 413 F.2d 804, 808; United States v. White (5th Cir. 1971) 450 F.2d 264, 268, n. 6. The trial court, of course, “in its discretion may order the government to produce such a list under Rule 16, Federal Rules of Criminal Procedure.” United States v. Jordan (4th Cir. 1972) 466 F. 2d 99, 101. In this case, it is quite obvious why the court may well have considered inappropriate any such discretionary pre-trial order requiring the government to provide defendants with a list of its witnesses in this case. The persons involved were all powerfully-placed public officials in a small county in which all the witnesses lived. There were suggestions that already persons conversant with the facts in the case had been harassed. Moreover, there had been an earlier hearing in the county court. The persons who had knowledge of the facts were well known to the defendants and in the main had testified at this election hearing. In the light of all these circumstances, it cannot be said that the trial court abused its discretion in denying to the defendants a pre-trial list of the Government’s witnesses.

Nor were the defendants entitled to a summary of the testimony to be given by such witnesses. The Court in Sendejas v. United States (9th Cir. 1970) 428 F.2d 1040, 1046, cert. denied 400 U.S. 879, 91 S.Ct. 127, 27 L.Ed.2d 116, correctly stated the controlling rule in this connection thus:

“There is nothing as plain as the statute [i. e., the Jencks Act] in terms of stating that no pretrial statement in the possession of the government shall be subject to subpoena, discovery or inspection until the individual witness has testified on direct examination in the trial of the case and then only after proper motion by the defendant.” (Italics in the opinion.)

Actually, the trial court construed the motion of the defendants as intended to “require that the Government disclose to the defendants the details, witnesses and minutiae of the Government’s case against the defendants.” Taken as a whole, the motions of the defendants were what might be described as “a shotgun fishing expedition for evidence,” United States v. Crisona (D.C.N.Y.1967) 271 F.Supp. 150, 158 and as “overly broad in scope”, United States v. Wolfson, supra, 413 F.2d at 808. Rule 16 does not require “the prosecution to disclose all the minutia [sic] of its evidence, to reveal its trial strategy, and to delineate with total specificity the case it intends to present.” United States v. Fioravanti (3d Cir. 1969) 412 F.2d 407, 411, cert. denied 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88. Under the circumstances of this case, we find no error in the denial of such a motion.

III.

The defendants next contend that the District Court erred in the admission of the sworn testimony of the defendants Earl Tomblin and John R. Browning, taken at the state hearing on the protest filed by the defeated candidate for County Judge and involving the Mount Gay ballot box. There is, however, considerable ambivalence and vacillation of position on the part of the defendants with reference to this claim of inadmissibility. When the evidence was first proffered, the defendants apparently contended that no statement by a defendant was admissible in the prosecution’s case in chief because, “(T)his is a manner of in effect placing him on the witness stand by reading his testimony”, violative of the defendant’s constitutional “right to stand mute”. Later, in the same colloquy, the defendants suggested that, since the testimony was given “in a judicial hearing”, there might be Miranda problems. Subsequently, the defendants moved to strike the testimony, as against any defendants other than the one whose prior testimony was being proffered as evidence. It would seem that, for purposes of this motion to strike at least, the defendants were then conceding that the evidence was admissible against the defendant whose testimony at the election contest hearing was proffered but against no other defendants. On reaching this Court, however, the defendants began a new line of attack on this testimony, entirely different from any advanced in the trial below. In their brief in this Court, they argue that the testimony of Tomblin and Browning at the election contest hearing was offered for purposes of impeaching the credibility of those two defendants and that, since those defendants had exercised their constitutional right not to testify, the admission of such evidence violated their Fifth Amendment rights. Finally, during oral argument in this Court, the question arose whether the conspiracy forming the basis of the prosecution, so far as federal jurisdiction over the conduct of the defendants is concerned, ended with the certification of the nomination of the candidates for federal office, thereby making inadmissible against all other defendants any statements made by Tomblin or Browning at the subsequent election contest hearing.

Ordinarily, we would not consider grounds of objection not presented in the trial court. This, it would seem, would be a particularly appropriate action in this case, where the defendants have shifted so often in their contentions. However, the rule is not applied inflexibly. Where injustice may result the Court may consider other grounds than those pressed on the trial court. Exercising that discretion, we shall consider all the grounds of objection raised by the defendants.

(a) Alleged Inadmissibility as Evidence Intended Solely for Impeachment

As we have stated, it is the position of the defendants, raised by their brief in this Court but not before the trial court, that the sole purpose of the Government in introducing the testimony given by Tomblin and Browning at the earlier election contest was to impeach the credibility of those defendants and that the introduction of such testimony effectively and unfairly impeached the credibility of all the defendants. Testimony at an earlier trial, they argue, is admissible for impeachment purposes only if the defendant whose earlier testimony is to be used has testified. In support of this theory of inadmissibility, the defendants cite in their brief two Texas cases. Neither sustains their position. If anything, they uphold the admissibility of the testimony. In the first of these cases, Scherpig v. State (1929) 112 Tex.Cr.R. 61, 13 S.W.2d 872, a portion of the testimony of the defendant in another trial was offered in evidence by the prosecution and admitted. Thereafter, the defendant, who did not testify, offered other parts of the testimony of the defendant. In rebuttal, the prosecution offered the complete testimony of the defendant at the earlier trial but only “for the purposes of impeaching the defendant’s credibility”, and the Court specifically instructed the jury that it could consider that statement solely for purposes of impeachment. The defendant excepted, contending that the statement, as admitted in evidence, could not be so limited but was “before the jury for all purposes”. The Court sustained this contention of the defendant, adding (13 S. W.2d at 873):

“Beyond question what appellant had sworn to on a former trial of this case, if material to any issue before the court upon this trial, would be admissible testimony when offered by the state; * *

It is manifest that, far from sustaining the defendants’ position, this case provides no support for the contention of the defendants.

Equally inapposite is the other authority cited by the defendants, Taylor v. State (1917) 82 Tex.Cr.R. 210, 199 S.W. 289. There, the prosecution proffered testimony dealing with other crimes committed by the defendant, entirely unrelated to the offense for which he was then being tried. Such testimony was offered merely for purposes of impeaching the credibility of the defendant and not for purpose of establishing any circumstance or fact relevant to the pending prosecution. The defendant did not testify. The Court properly held that testimony relating to the commission of other crimes by the defendant, some of which did not even involve moral turpitude, and none of which had any factual relationship to the offense then before the Court, was inadmissible simply for impeachment purposes where the defendant did not testify; but, lest its limited ruling be misunderstood, the Court added this concluding sentence (199 S.W. at 290):

“Of course, any incriminating testimony given by him in the other case could be proved on trial of this case and as such would be admissible.”

This authority, again, when examined on its special facts, supports the admissibility of the testimony of Tomblin and Browning in the election contest.

The real difficulty with this argument of the defendants is that the testimony objected to was not proffered “for the purpose of impeaching” the two defendants by testimony having no relevance to the facts of the instant prosecution but as an admission by those defendants of facts directly related to the instant prosecution. The Government offered testimony from one Garrett Sullins that the latter was not present at the Mount Gay precinct on election day and had not voted at that precinct. Tomblin, however, had testified at the election contest hearing that he saw Garrett Sullins at the Mount Gay precinct and had observed him as he went in to vote. That testimony was given by Tomblin and the other conspirators in order to establish the alleged legality of the challenged vote of Garrett Sullins and, thus, through a finding of the legality of such vote and others like it, to secure the dismissal of the election contest. The establishment of the validity of this and other like votes was a necessary and integral part of the conspiratorial purpose, which was to secure the Democratic nomination of Okey Hager for County Judge through “stuffing” the ballot box with false votes. The record of Tomblin’s prior testimony was thus not offered to impeach the credibility of Tomblin or Browning by proof of some other unrelated criminal record of Tomblin or Browning. It was offered as proof of acts done in furtherance of the very conspiracy charged. As such it was manifestly admissible. Contrary to the argument of counsel for the defendants at trial, testimony of a defendant, given at another trial or hearing, is admissible, and this is true whether the defendant elects to testify in his own defense or not, Orth v. United States (4th Cir. 1918) 252 F. 569, 570; Edmonds v. United States (1959) 106 U.S.App.D.C. 373, 273 F.2d 108, 112-113, cert. denied 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012; London v. Patterson (9th Cir. 1972) 463 F.2d 95, 97; Hale v. United States (10th Cir. 1969) 406 F.2d 476, 478-479, cert. denied 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765 and whether he appeared as a defendant or witness, Boitano v. United States (9th Cir. 1925) 7 F.2d 324, 325, United States v. Cecil (8th Cir. 1972) 457 F.2d 1178, 1181. It is of no moment whether the former trial was for the same offense or for some other, Milton v. United States (1940) 71 U.S.App.D.C. 394, 110 F.2d 556, 559-560, or whether the trial was a criminal or civil proceeding, Ayres v. United States (5th Cir. 1952) 193 F.2d 739, 740-741.

(b) Alleged Improper Admission of such Testimony against Co-conspirators of the Declarant

It will be noted from the record that, when first confronted with this testimony, the defendants contested admissibility on the grounds (1) that such evidence violated the Fifth Amendment rights of the persons whose prior testimony was being used and (2) that its admission against those persons would be in contravention of the rule in Miranda. The first ground has already been disposed of under the principles enunciated in Orth v. United States, supra (252 F. 569). The implication that the rule announced in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, might inhibit the introduction of this testimony is wide of the mark. Miranda applies to statements procured during “custodial police interrogation” and has no application to voluntary testimony such as that involved here, given in another judicial hearing. As for the contention advanced in their subsequent motion to strike, that this testimony was inadmissible against any defendant other than the particular defendant who had testified, the District Court apparently covered the objection in its instructions which clarified the circumstances under which the testimony could be considered by the jury against all defendants, rather than just against those making the statements — at least, the defendants did not except to the portion of the charge in which the District Court set forth the circumstances under which this testimony could be considered as against defendants other than the ones whose prior testimony in another proceeding had been admitted. .

At the conclusion of the District Court’s charge, however, the defendants entered an exception that indirectly put in issue the admissibility of this previous testimony of Tomblin and Browning as against the other defendants. They excepted to the District Court’s failure to charge that the conspiracy ended with the certification of the election results on May 27, 1970. While the request to charge made no reference to the election contest, such an instruction, if given, would have required a revision of the District Court’s earlier ruling that, if the jury found that the conspiracy continued after the election result certification and through the election contest hearing, then the testimony given by Tomblin and Browning at the election hearing was admissible against all participants in the conspiracy. Thus, by this request to charge, the defendants posed an issue that went directly to the admissibility of the challenged evidence —not as against Tomblin or Browning but as against the other defendants.

We are of opinion the District Court properly refused such request to charge and properly left standing his instructions with reference to the circumstances under which this testimony could be considered by them in determining on the guilt or innocence of the defendants other than Tomblin and Browning. The flaw in the contention of the defendants lies in the difference between means and ends. An unlawful conspiracy is presumed to continue until its objective or purpose is achieved. United States v. Wechsler (4th Cir. 1968) 392 F.2d 344, 347-348, cert. denied 392 U.S. 932, 88 S.Ct. 2283, 20 L.Ed.2d 1389, reh. denied 393 U.S. 902, 89 S.Ct. 71, 21 L.Ed.2d 191; United States v. Corallo (2nd Cir. 1969) 413 F.2d 1306, 1319-1320, cert. denied 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422; United States v. Carvelli (D.C.N.Y.1972) 340 F.Supp. 1295, 1304, aff’d. (2nd Cir.) 464 F.2d 1129, cert. denied 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664. The true object and purpose of this alleged conspiracy was to secure the Democratic nomination of Okey Hager as County Judge. As a means of accomplishing this purpose, the Mount Gay ballot box was to be filled with a sufficient number of fraudulent ballots to ensure Hager’s nomination. But until those fraudulent ballots were finally given effect in the election result, the end sought by the conspiracy would be unrealized and Hag-er’s nomination insecure. Accordingly, the alleged conspiracy did not end with the certification of the result by the managers but continued through the election contest, which was to resolve whether the votes in the questioned precinct were to be given final effect in the contest for the Democratic nomination for County Judge. This seems to have been recognized by the defendants. During the trial itself, they made, for instance, no contention that the conspiracy ended with the certification of the election returns by the box managers or that any statement given or act done by any one of the conspirators subsequent to the certification was admissible solely against the defendant making such statement or taking such action. Thus, Napier, one of the box managers, testified in great detail that certain of the defendants gathered a number of those involved in the fraudulent action at the election just before the election contest hearing and “[bjriefed us what we should say about Garrett Sullins [who had given an affidavit that he had not voted at the election, though he was recorded as having- voted] and all of us sticking together and telling the same story, and when we are asked a question if we are going to answer it or not, look at Mr. Hager of the County Court.” This testimony was received against all the defendants without any objection by any defendant. Nor in our judgment would any objection have been appropriate. Plainly, the conspiracy did not end with the certification and statements by any one of the conspirators up to and through the election hearing were admissible against all the defendants.

(c) Inadmissibility of Evidence Based on Scope of Section 241

During argument before this Court, the question arose for the first time whether, since the only election result challenged by the protest related to a state office, federal jurisdiction terminated when the results of the federal election were finally certified, i. e., on May 27, 1970. It is suggested that federal jurisdiction over elections under Section 241 is limited to elections in which federal offices are at stake; and, when such federal elections are finally certified, any further federal criminal jurisdiction under that statute is at an end, whatever may be the situation with reference to any state contests arising out of the election. The gravamen of this argument, then, is that since there was no contest over the votes for federal offices at the Mount Gay box after the certification of May 27, 1971 federal jurisdiction over the conspiracy ended at that time, and evidence of subsequent events at a contest hearing involving only a state office voted on at the same election, was accordingly inadmissible. As we have stated, this involved argument arose only before this Court and was not presented to the District Court. The Government has argued that, whether the conspiracy had ended or not, the evidence was admissible under the principles enunciated in Lutwak v. United States (1953) 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593, reh. denied 345 U.S. 919, 73 S.Ct. 726, 97 L.Ed. 1352. Moreover, there necessarily arises the question whether, when the defendants have attempted to use by way of cross-examination the testimony given by certain of the Government witnesses in the election contest for purposes of contradicting the testimony of those witnesses at trial, they are in any position to object to the use by the Government of testimony by certain of the defendants themselves at that election contest. We shall, however, not tarry over these points but choose to meet directly the contention that federal jurisdiction over the alleged conspiracy ended with the certification in the federal election contests and anything happening after that certification is inadmissible in a prosecution under Section 241.

The statute under which the defendants were tried is not a narrow statute. To quote the language of the Court in United States v. Classic (1941) 313 U.S. 299, 322, 61 S.Ct. 1031, 1041, 85 L.Ed. 1368, it “speaks neither of elections nor of primaries. In unambiguous language it protects ‘any right or privilege secured * * * by the Constitution * * * See, also, Screws v. United States (1945) 325 U.S. 91, 122 n. 17, 65 S.Ct. 1031, 89 L.Ed. 1495 (Rutledge, J. concurring). The inclusive nature of the statute was emphasized in the recent case of United States v. Guest (1966) 383 U.S. 745, 753, 86 S.Ct. 1170, 1175, 16 L.Ed.2d 239, where the Court said that “[w]e have made clear in Price [United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267] that when § 241 speaks of ‘any right or privilege secured ... by the Constitution or laws of the United States,’ it means precisely that.” Nor is the sweep of the statute confined to rights expressly defined in the Constitution; included among the rights “secured” thereby are those judicially determined to be fundamental and embraced by implication within the Equal Protection Clause of the Fourteenth Amendment. United States v. Guest, supra, at 755-756 of 383 U.S., 86 S.Ct. 1170. Right of suffrage “is a civil right of the highest order,” Oregon v. Mitchell (1970) 400 U.S. 112, 139, 91 S.Ct. 260, 272, 27 L.Ed.2d 272 (Douglas, J. dissenting and concurring), and “a fundamental political right, because preservative of all rights”, Yick Wo v. Hopkins (1886), 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220. No right is more precious than the right of suffrage. It involves “matters close to the core of our constitutional system”, Carrington v. Rash (1965) 380 U. S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 for “(f)ree and honest elections are the very foundation of our republican form of government,” MacDougall v. Green (1948) 335 U.S. 281, 288, 69 S.Ct. 1, 4, 93 L.Ed. 3 (Douglas, J., dissenting). Truly, “(o)ther rights, even the most basic are illusory if the right to vote is undermined”, Wesberry v. Sanders (1964) 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481. Because of these compelling considerations, the right of suffrage, whether in an election for state or federal office, is one that qualifies under the Equal Protection Clause of the Fourteenth Amendment for protection from impairment, “when such impairment resulted from dilution by a false tally, cf., United States v. Classic, 313 U.S. 299 [61 S.Ct. 1031] 85 L.Ed. 1368; or by a refusal to count votes from arbitrarily selected precincts, cf., United States v. Mosley, 238 U.S. 383 [35 S.Ct. 904] 59 L.Ed. 1355, or by a stuffing of the ballot box, cf., Ex Parte Siebold, 100 U.S. 371, 25 L.Ed. 717; United States v. Saylor, 322 U.S. 385 [64 S.Ct. 1101] 88 L.Ed. 1341.” Baker v. Carr (1962) 369 U.S. 186, 208 and 247-248, 82 S.Ct. 691, 705 and 726, 7 L.Ed.2d 663. This was bluntly stated in Reynolds v. Sims (1964) 377 U.S. 533, 554-555, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506: “[T]he Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. * * * The right to vote can neither be denied outfight, * " * nor diluted by ballotbox stuffing * * (Italics added)

While it may be that the Constitution provides the right to vote only in federal elections and that the right to vote in purely state elections must derive from state constitutions or laws (see, Fortson v. Morris, 1966, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330), it is clear that, where states provide for the election of officers, that right, as we have indicated, is protected against dilution involving “state action” under the Equal Protection Clause of the Fourteenth Amendment.

In keeping with this principle, federal courts have, since Reynolds, consistently acted to protect the right of suffrage in elections for state legislators and administrators. Avery v. Midland County (1968) 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45; Hadley v. Junior College District (1970) 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45; Dundee v. Orleans Parish Board of Supervisors of Elec. (5th Cir. 1970) 434 F.2d 135. Cf., Katzenbach v. Morgan (1966) 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828; Carrington v. Rash, supra (380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675). It has been held that any state statute limiting the right to vote in connection with the issuance of revenue bonds to support a municipal utility system to property owners is violative of the Equal Protection Clause of the Fourteenth Amendment. Cipriano v. City of Houma (1969) 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647. Similarly, a state limitation of suffrage in local school elections to property owners was invalidated for like reasons in Kramer v. Union School District (1969) 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583. Unreasonable residence requirements, imposed by the State, are likewise invalid, whether for state or federal elections. Hadnott v. Amos (Three-judge, ct. Ala.1970) 320 F.Supp. 107, aff’d. 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318. It is, of course, true, as Justice Stewart observed in United States v. Guest, supra (383 U.S. at 755, 86 S.Ct. at 1176) that, “[i]t is a commonplace that rights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority.” Accordingly, there must be some involvement in the election with which this action is concerned by one acting “under color” of state law. “Under color” of law has been construed as identical with and as representing state action. United States v. Price, supra (383 U.S. at 794, n. 7, 86 S.Ct. 1152). It may be represented by action taken directly under a state statute or by a state official acting “under color” of his office. United States v. Classic, supra, at 326 of 313 U.S., 61 S.Ct. 1031; Screws v. United States (1945) 325 U.S. 91, 107-113, 65 S.Ct. 1031, 89 L.Ed. 1495. It is, however, not necessary that the “involvement of the State need be either exclusive or direct”; it may be merely “peripheral”. United States v. Guest, supra (383 U.S. at 755), 86 S.Ct. at 1177. Nor is it essential that the state official be a party defendant; it is sufficient if the proof involves “a charge of active connivance by agents of the State” in the wrongful acts done in furtherance of the conspiracy; that will meet the test of state action, as required under the rule enunciated in Guest. See, Note, The Supreme Court, 1965 Term, 80 Harv.L.Rev. 91, at 109 and 155, n. 5.

Guest and Reynolds read together, it seems to us, compel the conclusion that a conspiracy by the defendants with which the official election managers connived, in order to dilute through “ballot-box stuffing” the constitutionally protected right of suffrage, as is claimed here, is within the broad language of Section 241, and this is true whether the conspiracy is directed at an election for a state or a federal office, for which the election clerks and managers were essential cogs in the conspiracy. Without their active participation, the conspiracy was ineffective, both at the election itself and in the election contest. The depositing of false ballots in the ballot box required their connivance. The listing of the names of fictitious voters on the voting list had to be done by or with the cooperation of the election clerks. And, when the election contest developed, it was necessary for the election officials and the defendants to “sticking] together and tell[ing] the same story”, as certain of the election officials testified without objection they were instructed to do by the defendants just before the election contest hearing.

Accordingly, the argument that federal jurisdiction ended under Section 241 with the certification of the federal election results and that, necessarily, evidence of crimes committed thereafter was inadmissible in this prosecution, is meritless, for the federal government has power not only to punish conspiracies to poison federal elections, but has power also to punish conspiracies, involving state action at least, to dilute the effeet of ballots cast for the candidate of one’s choice in wholly state elections.

IV.

The defendants also find constitutional fault in Government counsel’s jury summation. They complain that the prosecutor, in beginning a review of the testimony of the defendants’ witnesses, with the words, “[w]hat do the defendants say?” was guilty of an impermissible comment on the failure of the defendants to testify. Viewed in isolation, the statement might have been of doubtful propriety; but, taken in connection with the comments that followed, for which it was but a rhetorical introduction, it was plainly not violative of the defendants’ rights.

The rule, as formulated in most federal circuits, for ascertaining when argument of Government counsel represents improper comment on a defendant’s failure to testify, was well stated in United States ex rel. Leake v. Follette (2nd Cir. 1969) 418 F.2d 1266, 1269, cert. denied 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665: “ ‘Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify ?’ ” Applying this rule, we conclude that the statement of the prosecutor was not “manifestly intended” as “a comment on the failure of the accused to testify.” It is true the defendants themselves had not testified. They had, however, offered an extensive defense, directed at the credibility of the Government’s witnesses. They had called over thirty witnesses in their defense and had consumed several trial days in presenting their evidence. The challenged language of the prosecutor, expressed in an interrogatory form, was, as we have said, no more than a rhetorical inquiry, directed to the defendants’ theory of defense, expressed as a mere predicate for then reviewing in detail that theory and the evidence offered by the defendants in support. This construction of the prosecutor’s language and his obvious purpose is clear from the statements that immediately followed the rhetorical inquiry. The prosecutor followed the inquiry with a review of the defendants’ defense as developed in their proof. It was to this proof that his inquiry was directed, not to the failure of the defendants to testify. Moreover, the comment of the prosecutor, of which the defendants complain, taken in its context, was not as suggestive as a charge that the defendant “has presented no defense in this case”, United States v. Johnson (4th Cir. 1964) 337 F.2d 180, 203, cert. denied 385 U.S. 846, 87 S.Ct. 44, 17 L.Ed.2d 77, or an argument “that the evidence of the government is uncontradicted or unexplained”, Carlisle v. United States (4th Cir. 1912) 194 F. 827, 830; Davis v. United States (4th Cir. 1960) 279 F.2d 127, cert. denied 364 U.S. 822, 81 S.Ct. 60, 5 L.Ed.2d 53. See also, United States v. Lipton (2nd Cir. 1972) 467 F.2d 1161, 1168. In no event could it be considered prejudicial to the defendants, when considered along with the clear-cut instruction of the District Court in his subsequent charge. Cf., United States v. Briggs (2nd Cir. 1972) 457 F.2d 908, 911-912, cert. denied 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251.

V.

Finally, the defendants complain of the District Court’s failure to dismiss because the verdict was not supported by substantial or credible evidence. This argument rests largely on the contention that the Government’s witnesses in the main had given conflicting statements, either in affidavits or testimony at the election contest hearing. The credibility of witnesses is, however, a question for the jury. It was the position of the Government that the earlier testimony of the witnesses, whose evidence was assailed by the defendants, had been coerced or induced by false promises. The resolution of such an issue was properly for the jury, which concluded the issue contrary to the position of the defendants. The trial court, who had the opportunity of observing the witnesses, was not disposed to distrust that conclusion by the jury. We find no error in his denial of the motion.

Affirmed.

      . Of., III(c) hereof, as to whether jurisdiction under Section 241 is confined to federal elections.

      . This motion was apparently drafted in line with Section 5.3 of the Standards Relating to Discovery and Procedure Before Trial, American. Bar Association Project on Standards for Criminal Justice, approved August, 1970. See, Oliver, Omnibus Pretrial Proceedings: A Review of the Experience of the United States District Court for the Western District of Missouri, 58 F.R.D. 270 (1973).

      . The motion for discovery of exculpatory material rests, of course, on Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 as further explicated in Moore v. Illinois (1972) 408 U.S. 786, 794-795, 92 S.Ct. 2562, 2568, 33 L. Ed.2d 706:
      “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense and (c) the materiality of the evidence.”
      Disclosure required under this rule exists, however, whether a motion be made or not. Barbee v. Warden, Maryland Penitentiary (4th Cir. 1964) 331 F.2d 842, 845-846. And the Government must act in good faith in discharging this duty; if in doubt, it should submit the material in question to the court itself for in camera review. For an interesting discussion of what may bo deemed “exculpatory material” within the rule, see, Ingram v. Peyton (4th Cir. 1966) 367 F.2d 933, 936; Barbee v. Warden, supra, 331 F.2d 842; 44 F.R.D. 500-505. An assurance by the Government that it does not possess exculpatory evidence, absent a particularized showing of its existence and materiality by the defendant, will not support a reversal of a trial court’s denial of an in camera inspection by the Court of the Government’s file. United States v. Crisona (2nd Cir. 1969 ) 416 F.2d 107, 116; United States v. Gonzalez (5th Cir. 1972) 466 F.2d 1286, 1288; United States v. Isaacs (D.C.Ill.1972) 347 F.Supp. 743, 759; cf., however, Nakell, Criminal Discovery for the Defense and the Prosecution — The Developing Constitutional Considerations, 50 N.C.L.R. 437, at 458. No attempt at such a showing in this ease was made, though the defendants did suggest that perhaps the witness Napier had given a single negative statement in his testimony before the grand jury that could be considered exculpatory. The trial court did not find the answer exculpatory, but, if the statement was, it was made available to the defendants at trial before Napier was cross-examined. This was timely under the circumstances of this case. The Supreme Court “has never pinpointed tiie time at which the disclosure [under Brady] must be made.” Nakell, supra (50 N.C.L. Rev. 437, 452). Disclosure should, however, be made “at a time when the disclosure would be of value to the accused” and “at least, before the taking of the accused’s evidence is complete.” Hamric v. Bailey (4th Cir. 1967) 386 F.2d 390, 393. See, also, United States v. Elmore (4th Cir. 1970) 423 F.2d 775, 779. As suggested in Hamrie, it may well be that in a more complicated situation, where there is exculpatory evidence having “a material bearing on defense preparation”, the Government should provide the defense with the exculpatory material prior to trial, otherwise the defense would not be able to “capitalize” on it. Cf., United States v. Ahmad (D.C.Pa. 1971) 53 F.R.D. 186, 193-194; United States v. Cobb (D.C.N.Y. 1967) 271 F.Supp. 159, 163, aff’d., 2d Cir., 396 F.2d 158; United States v. Gleason (D.C.N.Y. 1967) 265 F.Supp. 880, 884-885. In this case, though, the so-called exculpatory evidence consisted of a single categorical answer. The defense could not have been prejudiced by not being afforded such bare answer prior to trial. Cf., United States v. Elmore, supra, 423 F.2d 775.
      For a general discussion of Brady, see, Note, Brady v. Maryland and the Prosecutor’s Duty to Disclose, 40 U.Chi.L.Rev. 112 (1972).

      . See, also, Jaben v. United States (1965) 381 U.S. 214, 220, 85 S.Ct. 1365, 1369, 14 L.Ed.2d 345, reh. den. 382 U.S. 873, 86 S.Ct. 19, 15 L.Ed.2d 114, where the Court said that, under Rule 5, Federal Rules of Criminal Procedure, a preliminary hearing was required, “unless before the preliminary .hearing is held, the grand jury supersedes the complaint proeedxire by returning an indictment." (Italics added.)

      . For a discussion of Ross, see, United States v. Milano (10th Cir. 1971) 443 F.2d 1022, 1025, cert. denied 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 258:
      “Defendant relies on Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965), and Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967), which did say that the preliminary examination also provided the defendant with discovery. But that is merely an incidental benefit — which varies widely from case to case, depending on how much evidence the government produces at this early state — and not the statutory purpose. Blue and Ross have not been followed in other circuits. Cf. United States v. Karger, 439 F.2d 1108 (1st Cir. 1971). Moreover, 18 U.S.C. § 3060 was enacted after both cases, and, we think, clarifies the statutory purpose.”
      This language is reiterated in United States v. Brumley, supra (466 F.2d at 915-916).
      It has been suggested that if the preliminary hearing is expanded into a discovery proceeding, there is danger of a “trial before a trial,” a procedure that would bog down the expedient administration of criminal courts. Note, Toward Effective Criminal Discovery: A Proposed Revision of Federal Rule 16, 15 Vill.L. Rev. 655 at 678 (1970).

      . Of., however, Nakell, Note, supra, at 468.
      “* * •!■ Coleman [Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387] could be interpreted to provide a constitutional right to a preliminary hearing * *

        But, of. concurring opinion of Justice White in Coleman. (399 U.S. at 17-18, 90 S.Ct. 1999).

      . Eor a discussion of what may constitute “particularized need”, see, Note, Defense Access to Grand Jury Testimony: A Right in Search of a Standard, 1968 Duke L.J. 556.

      . In Johnson, the Court said (419 F.2d at 59) :
      “Johnson argues that recent decisions allow automatic access to grand jury testimony and that no longer must a defendant make a showing of particularized need for examining the grand jury’s minutes. None of these decisions, however, require disclosure of all grand jury testimony as a matter of right. The Second and Seventh Circuits afford the broadest disclosure for the purposes of impeachment. There, in the absence of sound reasons for a protective order, a defendant may examine the grand jury testimony of a witness on subjects about which the witness testified at the trial.”
      It would seem, however, the Seventh Circuit has now adopted the view expressed in Johnson. See, United States v. Cerone (7th Cir. 1971) 452 F.2d 274, 287:
      “* * * Grand jury minutes are not available as of course to defendants in federal criminal trials, but rather may be made available in the exercise of the trial court’s discretion when the defense has shown that ‘a particularized need’ exists for the minutes which outweighs the policy of secrecy [of the grand jury’s proceedings].”

      . See 1 Wright, Federal Practice and Procedure (1972 Supplement), § 254, at 130, n. 91:
      “As a part of the Organized Crime Control Act of 1970, the Jencks Act was amended to include in the definition of ‘statement’ in 18 U.S.C.A. § 3500(c) [§ 3500(e)] the following new provision: ‘(3) a .statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.’ ”

        See, also, U.S.Code Cong. & Admn. News, 91st Cong. 2d Sess., 1970, at 4017, Pub.L. 91-452, 84 Stat. 926; hut, cf., United States v. Duffy (D.C.Ill. 1972) 54 F.R.D. 549, 550.

      . Pre-trial hearings in criminal cases have in recent years been encouraged and a number of District Courts have developed procedures for such hearings. See, Oliver, Omnibus Pretrial Proceedings, stipra (58 F.R.D. 270) and Advisory Committee Note, Proposed Amended Rule 16, 48 F.R.D. 604.

      . See, also, Will v. United States (1967) 389 U.S. 90, 99, 88 S.Ct. 269, 19 L.Ed.2d 305; United States v. Houston (D.C.Ga. 1972) 339 F.Supp. 762, 765; Proposed Amendments to Criminal Rules, 48 F.R. D. 553, 603-604; Note, Discovery of Witness Identity under Preliminary Proposed Federal Criminal Rule 16, 12 W. & M.L. Rev. 603 (1971) ; and Orfield, List of Witnesses and Jurors in Federal Criminal Cases, 44 F.R.D. 527.

      . See the comments of the United States Attorney for Connecticut on this possibility of harassment as a reason for denial of a list of government witnesses in 44 F.R.D. at 499 (1968).

      . Nelms v. Laird (4th Cir. 1971) 442 F.2d 1163, 1169, rev’d on other grounds 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972) ; McGowan v. Gillenwater (4th Cir. 1970) 429 F.2d 586, 587; McKissick v. United States (5th Cir. 1967) 379 F.2d 754, 759.

      . Wratchford v. S. J. Groves & Sons Company (4th Cir. 1969) 405 F.2d 1061, 1063; In re Elmore (1967), 127 U.S.App.D.C. 176, 382 F.2d 125, 127.

      . See, Schneckloth v. Bustamonte, 412 U. S. 218, 240, note 29, 93 S.Ct. 2041, 2055, 36 L.Ed.2d 854, 1973.

      . See, Appendix, p. 855:
      “MB. GBEENE: This is all right. “Now comes the defendant John B. Browning and moves the Court to strike

        the evidence or the testimony of Earl Tomblin taken before the County Court and ask the jury not to consider it as any evidence as to John R. Browning.
      “Tour Honor, we do not have the right and opportunity to cross-examine and for many reasons it is obvious that this should be stricken from the jury as far as John R. Browning is concerned.
      “MR. BAER: I would like the record to show the same motion as to all defendants except the defendant Earl Tomblin.”

      . Note, immediately after admitting this testimony of Tomblin into evidence, the District Court instructed the jury as follows :
      “Primarily that evidence could be considered by you only as bearing upon the guilt or innocence of Mr. Tomblin and you should view it in that perspective in the first instance. If, however, you should determine that at the time Mr. Tomblin gave this testimony in Logan County any conspiracy existed between him and any one or more of the other defendants and that you should conclude that this had any bearing on the furtherance of a conspiracy, you could then consider it as bearing upon the guilt or innocence of the other party or parties.”
      He restated the same instructions at the conclusion of the evidence.

      . See, also, South v. Peters (1950) 339 U.S. 276, 279, 70 S.Ct. 641, 643, 94 L.Ed. 834 (Douglas, J., dissenting) :
      “There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have ballot counted * * *. It also includes the right to have the vote counted at full value without dilution or discount.”

      . Tlie record clearly shows the context in which the challenged statement was made. In the opening portion of the Government’s closing argument, in reviewing the evidence, Assistant United States Attorney King stated as follows:
      “What do the defendants say? You heard the testimony, thirty some witnesses the defendants called. Apparently they say Sloan and Elswick—
      “MR. BECKETT: Your Honor, may we approach the bench?
      “THE COURT: I will entertain it at the end of the argument.
      “MR. KING: — Sloan and Elswick were behind it all to get Elwood Sloan elected constable. Apparently Mr. Hager, Okey Hager, was an innocent benefactor. He got elected because of it, but Elwood Sloan was the one that needed to get elected constable. Their witnesses had Elwood Sloan and Cecil Elswick out the night before the election offering I believe over $3,000 or more to different people, total to go along with them.
      “What else do their witnesses say? Lindsey Workman said that they offered him $300. . .”

      . Seemingly recognizing the weakness of their position, the defendants have included in their brief certain affidavits to the effect that the District Attorney, when he expressed the question to which the defendants excepted, turned and gestured toward the defendants. Had this occurred, we would not regard it as significant. But we are disturbed that these affidavits were not a part of the record for appeal; they were merely inserted by counsel for the defendants without notice in their printed brief. See, Rule 10, F.R.A.P. Any reference to material not in the agreed record for appeal, much less its inclusion in a brief filed with the Court, is both improper and censurable. We have accordingly taken no notice of these affidavits.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Wade CAWLEY and Lou Wiggs, Defendants-Appellants.
    No. 72-2418.
    United States Court of Appeals, Fifth Circuit.
    July 3, 1973.
    Rehearing Denied Aug. 1, 1973.

      H. Thomas Hirsch, Odessa, Tex., for defendants-appellants.
    William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

      . This appellant was indicted as James Collie. Following some confusion as to the correct name and apparently an arrest and rearrest he filed a plea in abatement, which led to a stipulation that the indictment was corrected without objection to read James Cawley and the plea in abatement being marked “disposed of by agreement.” The Appendix indicates that he was sentenced as “James Cawley,” but notice of appeal from the judgment of conviction was given by James Wade Cawley. He will be referred to in this opinion simply as Cawley.

      . This appellant was indicted, tried and sentenced as Lon Wiggs. He filed notice of appeal from the judgment of conviction as Lew Wiggs. He will be referred to in this opinion simply as Wiggs.

      . Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   SIMPSON, Circuit Judge:

Cawley and Wiggs appeal from their convictions following a joint trial before a jury. Cawley was convicted under Counts One, Two, (as an aider and abettor, Title 18, U.S.C. Sec. 2) Three, Four and Five, of a six-count indictment. He was not named in Count Six. He received confinement sentences of five years under Count One, and ten years under each of the remaining counts, subject to the indeterminate parole provisions of Title 18 U.S.C. Sec. 4208(a)(2), all sentences to run concurrently. Wiggs was convicted under Counts One, Two, Three and Four, the only counts under which he was charged. His concurrent confinement sentences, also subject to Title 18 U.S.C. See. 4208(a)(2) were respectively to five years, six years, six years and six years. Count One charged Cawley and Wiggs, together with two others not on trial, Travis Calvin Henderson (Henderson hereinafter) and June Teagarden Hunsanger Capps (Mrs. Capps hereinafter) along with an unindicted co-conspirator, James Clarence Weeks, with Conspiracy, Title 18 U.S.C. Sec. 371, to violate counterfeiting statutes of the United States, Title 18 U.S.C. Secs. 471, 472, 473 and 474, by making, concealing and possessing counterfeit $10, $20 and $100 Federal Reserve notes, by concealing and possessing plates for the printing of such counterfeit money and by transferring and delivering counterfeit notes. Counts Two, Three, Four, Five and Six were substantive counts. Count Two charged Wiggs and Mrs. Capps with making counterfeit notes, in violation of Title 18 U.S.C. Sec. 471, and charged Cawley and Henderson with aiding and abetting the commission of such offense in violation of Title 18 U.S.C. See. 2. Count Three charged the same four defendants with possession of counterfeit notes, in violation of Title 18 U.S.C. Sec. 472. Count Four charged these four persons with possessing counterfeit plates from which counterfeit notes had been printed, in violation of Title 18 U. S.C. Sec. 474. Henderson and Cawley were charged under Count Five with delivery of $4,800 in counterfeit money to James Clarence Weeks, in' violation of Title 18 U.S.C. Sec. 473. Henderson was charged under Count Six with delivery of $6,000 in counterfeit notes to Weeks, also in violation of Title 18 U.S. C. Sec. 473. .

After consideration of the several issues raised on appeal, we affirm the convictions of both Cawley and Wiggs.

The first question raised by the appellants is claimed error in the denial of their pre-trial motion for a continuance in order to obtain two witnesses, Stroud and Weaver, whom they regarded to be “essential” to their defense. Appellants recognize that the granting of such a motion is a matter within the sound discretion of the trial court, United States v. Harrelson, 5 Cir. 1973, 477 F.2d 383, 384, decided May 4, 1973; United States v. Fuentes, 5 Cir. 1970, 432 F.2d 405, 407-408, cert. denied, 1971, 401 U.S. 919, 91 S.Ct. 904, 27 L. Ed.2d 822; but suggest that it was erroneous abuse of such discretion to deny the request here where, they assert, they showed who the witnesses were, what their testimony would be and that it would be competent and relevant to the issue of their guilt, that the witnesses could probably be obtained if the continuance were granted, and that due diligence had been used to obtain their attendance on the day set for trial. United States v. Harris, 10 Cir. 1971, 441 F.2d 1333, 1336; Blackwell v. United States, 5 Cir. 1969, 405 F.2d 625, 627, cert. denied, 395 U.S. 962, 89 S.Ct. 2104, 23 L.Ed.2d 747; Leino v. United States, 10 Cir. 1964, 338 F.2d 154, 156. Appellants urge Stroud and Weaver were essential and material witnesses to their defense because they were involved with counterfeit money produced from the same plates used by the government as exhibits against them.

The evidence at trial indicated that appellants printed numerous bills which were not used because they were apparently dissatisfied with their quality. There was no evidence to show that these bills were in fact destroyed, thus leaving open the possibility that Stroud and Weaver could not fully exonerate appellants as they contend or even otherwise offer testimony relevant to their cause. In addition, there was unrefuted government testimony that Stroud was a fugitive from justice, raising a strong inference that he could not be produced as a witness at a later trial date. Of even more significance, there was no evidence from any source that either Stroud or Weaver would have testified to incriminating circumstances leaving them open at least to a charge of possession of counterfeit money in violation of Title 18 U.S.C: Sec. 472. Assuming their production at a later trial, their willingness to testify was completely unascertainable. United States v. Pollack, 5 Cir. 1970, 427 F.2d 1168, 1169. Abuse of the trial judge’s discretion in denying appellant’s motion for a continuance is not made to appear.

Appellants next contend that the trial court erroneously denied their motions for new trial on the ground of newly discovered evidence, such evidence being that their co-defendant Mrs. Capps was promised a dismissal of several counts of the indictment in return for her testifying as a government witness. A month before appellants’ trial Mrs. Capps entered a guilty plea to Count One, the conspiracy count of the indictment. At the time her plea was accepted she stated that she had been promised nothing in exchange either for her plea of guilty or for an agreement to testify on behalf of the government at appellants’ trial. During the trial of Cawley and Wiggs, Mrs. Capps affirmed this by testifying that she was not promised anything in return for her testimony or for her guilty plea and had received nothing. But in August 1972, several months after trial, the Assistant U.S. Attorney who prosecuted the case testified at a hearing on appellants’ motion for a new trial that he expected to dismiss the remaining counts of the indictment at Mrs. Capps’ sentencing in return for her guilty plea to the single conspiracy charge, Count One. It was brought out at this hearing that a presentence report as to Mrs. Capps had not been completed as of the trial date in' March 1972, so that the trial judge was at that time unready to sentence her. Appellants argue that this exercise in “plea bargaining” was in fact an inducement for Mrs. Capps to testify at their trial for the government, her previous denials to the contrary notwithstanding, and that such information if known to the jury would affect Mrs. Capps’ credibility as a witness. They rely on the teachings of Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L. Ed.2d 104, as entitling them to a new trial.

In Giglio it was learned after trial that the key government witness, who was Giglio’s alleged co-conspirator and the only witness linking Giglio with the crime, had been promised freedom from prosecution in return for his cooperation with the government despite direct representations to the contrary at trial. The Supreme Court reversed the conviction and order a new trial because the nondisclosure by the government of this evidence affected the credibility as a witness of one without whom “there could have been no indictment and no evidence to carry the case to the jury.” 405 U.S. at 154, 92 S.Ct. at 766, 31 L. Ed.2d at 109.

We had recent occasion to apply Giglio in United States v. Tashman and Goldberg, 5 Cir., 478 F.2d 129 (decided May 18, 1973). There, under vastly different circumstances, we ordered a new trial. A co-defendant of the appellants there, Osbrach, agreed to plead guilty to one count of a two-count indictment, to testify against his co-defendants Goldberg and Tashman, and to provide the government with “valuable” information in return for a government recommendation to the court as to his sentence in a secret pre-trial proceeding from which Goldberg, Tashman and their counsel were excluded. The plea proceedings were sealed by the trial judge at the request of counsel for Osbrach. Osbrach testified at trial against his codefendants without their counsel being advised of the nature of the secret proceedings. We stated broadly, citing Giglio, that “the failure of the Government to disclose to a jury plea-bargaining negotiations with a key witness deprives a defendant of constitutional due process.” The holding of Tashman was required because the jury was unaware of the interest that may have influenced Osbrach’s testimony. In fact he had an agreement with the government to testify against his co-defendants in return for the plea. We read Giglio and Tashman and Goldberg to mean simply that the jury must be apprised of any promise which induces a key government witness to testify on the government’s behalf.

Here Mrs. Capps consistently stated —at the taking of her plea under the rigorous examination by the judge required by Rule 11,'F.R.Crim.P., at appellants’ trial and again at the hearing on motion for new trial — that she was promised nothing for her plea of guilty or for testifying against appellants. The testimony of the prosecutor was not to the contrary. He testified that prior to appellants’ trial the government offered Mrs. Capps the opportunity to plead guilty to any one of the four counts with which she was charged, with the reading of the indictment as to its remaining parts being waived. She did not then agree to testify against Cawley and Wiggs although she had indicated a willingness to do so. Defense counsel were notified over a week before trial, on February 28, 1972 that Mrs. Capps had pled guilty to Count One and that she would be a government witness at trial. Nor did the Assistant U.S. Attorney offer to make any recommendation as to sentencing. He categorically stated that nothing more than this classic or “pure” plea bargain took place. That is to say there was no agreement with the government, as there was in Giglio for the witness to avoid prosecution in return for testimony for the government at the trial of another wrongdoer. There was no agreement as in Tashman for the co-defendant to plead guilty to a single count in return for testimony. Such a promise was denied both by the witness and the prosecutor under oath. We cannot infer on this record that such a promise was made.

“Plea bargaining” has been recognized as an “essential component of the administration of justice” and, when “[p]roperly administered,” should be encouraged. Santobello v. New York, 1971, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432; Brown v. Beto, 5 Cir. 1967, 377 F.2d 950, 956-957. Here it appears the inducement was reduction in the offense charged and the prosecution fulfilled its promise. Mrs. Capps’ testimony in appellants’ trial was not a part of that bargain. Her cooperation with the government was separate and independent from the bargain, although realistically she may have hoped for a favorable sentence.

Ample opportunity was allowed at trial for appellants to explore the motivation behind Mrs. Capps’ testifying for the government and thereby to attempt to discredit her testimony. She had been named as a co-defendant in the same multi-count indictment as they and had pled guilty to one of those counts a month before trial. Counsel was at trial in no way discouraged from bringing this fact to the jury’s attention. It cannot be demonstrated that Mrs. Capps testimony at trial was false in any particular. We will not hold the trial court in error under the circumstances present here for the denial of appellants’ motion for a new trial.

Cawley and Wiggs further contend that the trial court erred by refusing to grant a new trial based upon claimed newly discovered evidence that the government witness Weeks, named in the indictment as a co-conspirator under Count One, and as a receiver of counterfeit money from Henderson and Cawley under Count Five and as a receiver of counterfeit from Henderson under Count Six, had never been charged with any crimes whatsoever despite self-incriminating testimony at their trial and that such information, with its attendant inference of government inducement to testify, should have been before the jury. It is well settled, however, that the United States has wide discretion in determining whether a prosecution against a particular individual shall be commenced or maintained. See United States v. Hancock, 5 Cir. 1971, 441 F.2d 1285, 1287, cert. denied 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63; United States v. Cox, 5 Cir. en banc 1965, 342 F.2d 167, 171, cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. Appellants were fully apprised in advance that Weeks would be a witness for the government. The fact that he stood unindieted was a known and legitimate basis for cross-examination as to possible interest when he testified at trial. United States v. Rodriguez, 5 Cir. 1971, 437 F.2d 940, 941, F.R.Crim.P. 33.

The appellants finally argue that they should have been granted a new trial because of the false testimony of a material witness against them. At trial Mrs. Capps testified that the counterfeit printing plates had been placed in a garbage can on July 13, 1969, and then loaded in the back of an ambulance to be taken away and destroyed and that she had never seen them since. Coldwell, the owner of the print shop where the counterfeit notes had been produced, testified that when he learned of the illegal activities conducted within his shop he was upset and immediately told the offenders to refrain from such behavior in the future, and that they did so to his knowledge. At the August 1972 motion for new trial hearing appellants produced testimony from Ophelia Goodson, an employee of the print shop, to the effect that she had discovered an aluminum counterfeit twenty dollar plate in a remote location in the shop in late August or early September 1969. This was six weeks or more after the plates were supposed to have been destroyed. She said she quit Coldwell’s employ immediately without disclosing her find until she gave defense counsel an affidavit in late May, two months after the trial. Cawley and Wiggs assert that this newly discovered evidence tended to rebut the testimony of Coldwell and if available at trial, would have entitled them to an instruction by the court that Coldwell was an accomplice to the acts charged. We reject this contention.

Coldwell’s testimony showed nothing more than that near the end of July he became aware for the first time that counterfeiting operations had been conducted in his print shop earlier that month and that he told those involved to desist from such activities in the future. The presence of a counterfeit printing plate in his shop some weeks thereafter was not proof of the falsity of his testimony since there was no evidence that he was aware of the plate’s presence. This newly discovered evidence tended to corroborate other evidence that counterfeiting activities had been conducted within Coldwell’s printing establishment, nothing more. This evidence was cumulative only and would not have warranted an accomplice charge as to Coldwell’s trial testimony. The trial judge correctly rejected this as an inadequate basis for granting a new trial. Mesarosh v. United States, 1956, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1, 7; and see United States v. Sposato, 2 Cir. 1971, 446 F.2d 779, 781-782 and cases cited therein.

We deal now with two contentions advanced individually by Cawley. First, Cawley separately urges that the prosecuting attorney commented upon his failure to take the stand in his own behalf in violation of his Fifth Amendment right against self-incrimination, and that the trial judge’s failure to declare a mistrial vitiated his conviction. Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Government’s witness Weeks testified as a part of the government’s proof under Count Five, that he was in the presence of Cawley and co-defendant Henderson in August 1969 when Henderson reached into a hole in the ceiling of an office of the Baker Ambulance Service, operated by Cawley and his brother, and removed a batch of counterfeit money. In an effort to discredit Weeks’ testimony, appellants called Deputy Sheriff Olesh as a witness. He stated that he found no such hole in the ceiling when he examined that office overnight during the trial in March 1972, at defense counsel’s request. In final argument the prosecutor stated that Cawley or someone in association with him would best know whether or not there was a hole in the ceiling in the summer of 1969.

Government counsel’s argument was in answer to defense counsel Hirsch’s argument comment upon the non-existence of a hole in the ceiling of the Baker Ambulance Service office to the effect that there never has appeared to be a hole there as far as Deputy Olesh was concerned, and further: “What happened to the hole? That’s where the money was supposed to have been taken out of — there isn't any. There never has been”.

There was no motion for mistrial. Instead, the argument was objected to on non-specific grounds and the trial judge sustained the objection, admonishing the government attorney to get off the subject of the hole in the ceiling. There was no further comment about the hole and the judge directed the jury to disregard the comments with respect to it. Additionally as a part of the general charge the jury was instructed not to draw any inference of guilt from the defendants’ failure to take the stand in their own behalf. United States v. Taitano, 4 Cir. 1971, 442 F.2d 467, 469.

Defense counsel got all he asked for when the incident occurred. We do not consider the incident of sufficient gravity for us to invoke the plain error rule, Rule 52(a), F.R.Crim.P., and hold the trial court in error for failing to declare a mistrial sua sponte. This is so, particularly since the prosecutor’s comment was at least as much directed to the defense’s failure to call Cawley’s brother and partner to the stand as to call Cawley as a witness for himself. Samuels v. United States, 5 Cir. 1968, 398 F.2d 964, 969, cert. denied 1969, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566.

We come finally to Cawley’s separate contention that the evidence was insufficient to sustain the verdict of guilty as to Count Five, which charged Henderson and Cawley jointly with the delivery and transfer, with intent to defraud, of approximately $4800 of counterfeit Federal Reserve Notes to Weeks, on or about August 12, 1969, and that the trial judge should have entered a judgment of acquittal as to that count. We think that, viewed in the light most favorable to the government, Glasser v. United States, 1944, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680, the evidence as to Count Five was sufficient. The testimony of Weeks was to the effect that Henderson physically removed the counterfeit notes from the loft in the office of Baker Ambulance Service and handed them to him in the presence of Cawley, and that Cawley then went outside, stating that “he didn’t care about knowing anything about whatever kind of deal was made and he left and he went outside.” Despite this disclaimer, Cawley advanced money to Henderson and Weeks for a trip to dispose of the money. Cawley admitted at the time of his arrest his financial interest in the deal. Mrs. Capps testified as to Cawley’s presence when she was called by Wiggs and Henderson to come to Coldwell’s print shop and help fix the press, at the time counterfeit money was being printed with a special kind of green ink from the counterfeit plates in evidence. Mrs. Capps said the printing operation took over three hours as the press kept jamming. She was present also the next day when Coldwell confronted Wiggs and Cawley with his knowledge that his press had been used. This was sufficient to warrant a jury finding that Cawley took part in the delivery of the money to Weeks with the requisite intent to defraud.

We note alternatively that since Cawley received concurrent ten year sentences for his conviction under the substantive counts of the indictment, Counts Two, Three, Four and Five, and the evidence under each of Counts Two, Three and Four was amply sufficient to support Cawley’s conviction, we do not need to consider the claimed deficiency of the proof as to Count Five. The concurrent sentence doctrine makes it unnecessary. United States v. Stone, 5 Cir. 1973, 472 F.2d 909; United States v. Payne, 5 Cir. 1972, 467 F.2d 828; United States v. Vigo, 5 Cir. 1970, 435 F.2d 1347.

The judgments of conviction appealed from are in all respects

Affirmed.

      . Mrs. Capps’ testimony on cross-examination included the following:
      “Q Have you ever talked to the Secret Service Agents about this matter?
      A Yes, sir.
      Q And you knew at the time you were talking to them that you were a Defendant in the case?
      A Yes, sir.
      Q I note today that you are not being prosecuted on it. Can you tell me why?
      A No, sir.
      Q Well, you talked to the Secret Service people, didn’t you?
      A Yes, sir.
      Q Did they promise you anything for your testimony?
      A No, sir.
      Q Have you plead guilty to this case?
      A Yes, sir.
      Q What did you receive?

        A I received nothing, sir, other than I pleaded guilty.
      Q You have not been tried yet? Is that what you are telling me?
      A Yes, sir.
      Q Do you ever expect to be tried ?
      A Yes, sir.
      MR. HANDY:
      Wait a minute, Your Honor, I would interpose an objection and let counsel get the chronology of events. It is my understanding when an individual pleads guilty, that is the trial and all that is left to be done is sentencing which naturally flows therefrom.
      THE COURT:
      Yes, sir, a plea of guilty has the same force and effect as a trial before a Court and jury.
      MR. ALLISON:
      That’s true, Judge, and I was trying to break it down into the vernacular of the jury. We understand when you plead guilty it is a trial. I understand that, sir.
      THE COURT:
      It is the same as being tried before a Court and jury.
      MR. ALLISON:
      Thank you, sir.
      BY MR. ALLISON:
      Q Have you told all that you know about this case?
      A Yes, sir.”

      . We set forth here the pertinent testimony at the hearing on motion for new trial of the Assistant U. S. Attorney, Mr. Handy:

        “Q In so far as Mrs. Capps is concerned, I believe the record reflects that she was re-arraigned in February, about a month before the March trial, is that correct?
      A She was re-arraigned on February 10, 1972 here in San Antonio, Texas in this courtroom.
      Q All right. And at that time, you dismissed all of the counts against her with the exception of the conspiracy count, is that correct?
      A No, that is not correct. I will elaborate. She entered a plea of guilty to the conspiracy count. We waived the reading of the remaining counts of the indictment in which she was named. Those counts were not dismissed until after she was sentenced.
      Q All right.
      A WFich is the normal procedure followed virtually 100 per cent in every case I have ever handled.
      Q All right. In February then of 1972, is that the first time you discovered that Mrs. Capps would be a prosecution witness?
      A On February 10th
      Q Yes, sir.
      A No. On November the 9th, 1971, which I believe that that date is correct, she and her attorney came to Midland. That’s the date of the motions in the case. Through her attorney she liad indicated that she wished to cooperate with the Government. I had not seen her and never talked to the woman prior to that particular time. I walked into the office. She was there with her attorney. She said she would like to cooperate and testify for the Government. So I asked Mr. Patterson to sit down with her and find out what the facts of the case that she would be testifying to. And that’s what he did. I introduced myself to her. I left, and I believe went back to the courtroom in as much as the Cramer case was coming up for trial either before or after we had motions. I don’t remember which.
      And I think I saw her leave. I don’t believe I had any more of a conversation with her at that time. Mr. Patterson came back to me and said that he believed that she would make a good witness on the trial of the case and that the testimony that she could give would be helpful to the Government.
      Q All right, sir. And for the purpose of the record, you are speaking of Mr. Bill Patterson or William Patterson and he is a Treasury Agent?
      A Right. United States Secret Service stationed out of Lubbock, Texas.
      Q And he was November 1971 and he still is a representative of that agency?
      A That is correct.
      Q All right. Now then, you say that you did not sentence Mrs. Capps until after she testified?
      THE COURT:
      He doesn’t sentence Mrs. Capps.
      MR. HIRSCH:
      Sir?
      THE COURT:
      He doesn’t sentence Mrs. Capps.
      MR. HIRSCH:
      I beg your pardon. That was—
      THE COURT:
      The Court sentenced Mrs. Capps.
      MR. HIRSCH:
      That was faulty wording on my part. I beg your pardon.
      BY MR. HIRSCH:
      Q Mrs. Capps was not sentenced until after the March trial, is that correct?
      A That is correct, along with all of the other Defendants. They were set down by the Court at a normal sentencing date.
      Q But she did plead guilty before this Court in February?
      A That is correct. February the 10th, 1972. I believe that’s correct.
      Q And the other parts of the indictment were waived except — ■
      A Just waived the reading of them. Yes, that is correct.

        Q Would it be a true statement that Mrs. Capps did not receive any sentence at that time in order that the Government could control her testimony in March?
      THE COURT:
      Wait just a minute. You are testifying to something that isn’t so. This Court never sentences anybody without a presentence report. And it takes a month to six weeks to two months as a rule to get that. So I wouldn’t sentence her under any circumstances at that time. And I hadn’t taken into account as to whether I was going to accept any recommendation for a dismissal on the other counts which were not read. I just took the plea on that one count. Now, that was all.
      BY MR. HIRSCH:
      Q All right, sir. Mr. Handy, did you enter into any kind of an agreement with Mrs. Capps’ attorney prior to the March 1972 trial?
      A Nothing other than what I have just testified to.
      Q Did you ever talk to him?
      A. Oh, yes, sir.
      Q There was no plea bargaining of any kind or any type with Mrs. Capps’ attorney?
      A In the sense that the Government offered to allow her to plead guilty to one of the counts of the indictment, at which time we, at the time of the plea, we would waive the remaining counts. In this particular indictment, and you perhaps can correct me if I am wrong, the maximum punishment on some of the substantive counts was fifteen years. One of them may have been ten years. And the conspiracy was five years. And I believe that the general offer I made was I would allow her to plead to any one of the counts of the indictment, and we would waive all of the remaining counts. As you well know, some Defendants are more comfortable pleading to different kind of counts. It’s just a matter of choice. You read the word conspiracy to them and they become excited about that word and it could lead to something else. So to me it didn’t make any difference. The Government was interested in a plea and the offer was made for one count in the indictment which was accepted by the defense. They made the decision on which count it would be.
      Q The offer was made and accepted prior to March 1972, was it not?
      A Yes, sir.
      Q So in truth and in reality, Mr. Handy, there had been some deal made, and I use the word deal not in a malicious tone but just because it’s the best word I can use but there had been some agreement made between the Government and Mrs. Capps’ attorney that she was going to plead guilty to one count, that being the conspiracy, and the reading of the indictment would be waived insofar as her being named in the remaining parts of the indictment and as far as the Government is concerned she was only going to be pleading guilty to that one count and not the rest of them?
      A That is what the Government offered and that was what was accepted by the Defense.
      MR. HIRSCH:
      That’s ail we have of this witness, Your Honor.
      MR. HANDY:
      Yes, I had better clear up for the record
      As to Mrs. Capps, specifically with respect to her, I made no representation or promises of any kind to her other than the offer and acceptance of the plea to the one count of the indictment. as previously testified to, and that is essentially— THE COURT:
      I think when I accepted the plea I made the statement to her at that time before I would accept the plea, it had to be unequivocally and voluntarily with full understanding of the nature and consequences. And I made it perfectly plain in the record, I’m sure if you’ll get that record, that I had no idea what sentence to impose on her, and I wouldn’t know until I had the pre-sentence report from the probation officer. And if there was any deal made, the Court wasn’t aware of it. And I made it plain to her that when she plead guilty, it was without benefit of any promise or any inducement to cause her to plead guilty. Now the record will reflect exactly what I said in that regard. But I know I did make that as a condition of accepting her plea of guilty.”

      . The comment by the prosecutor was as follows:
      But my question to you and the observation that bothers me is who best knows about whether the ceiling is in the condition that it is. Mr. Olesh? He doesn’t own the Baker Ambulance Service. He may go down by there once or twice, but he doesn’t own it. Who knows about that ceiling? I would say it is Mr. Cawley or someone in association with him. You haven’t heard anything about the condition of that ceiling back a year and a half in 1969 during the summer. (Emphasis added).


author: HILL, Circuit Judge.

text:
    Roland A. DEXTER, Plaintiff-Appellant, v. Lorene C. DEXTER and Lorene C. Dexter as executrix of the will of Archie B. Dexter, Deceased, Defendant-Appellee.
    No. 72-1715.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 23, 1973.
    Decided June 27, 1973.

      Roland A. Dexter, Westport, Conn., for plaintiff-appellant.
    Clifford T. Mueller, Prairie Village, Kan., for defendant-appellee.
    Before PHILLIPS, HILL and HOLLOWAY, Circuit Judges.
   HILL, Circuit Judge.

In this diversity action Roland A. Dexter appeals the district court’s judgment denying him entitlement to the proceeds of certain real property owned at one time in joint tenancy by his deceased parents. In 1952, Archie and Olga Dexter purchased a 227-acre farm in Marshall County, Kansas. Eight years later this farm was sold and a trailer court purchased in Marysville, Kansas. Roland, the sole issue of Archie and Olga, was married and living in the eastern United States during the time these transactions occurred.

Although not in physical proximity Roland maintained a warm relationship with his parents. He corresponded with or telephoned them weekly, and usually visited them at least once a year. The parents’ affection for their son was also apparent. They often spoke of Roland to their friends, and on numerous occasions mentioned that when they were both gone Roland would inherit their property. These oral manifestations were corroborated by several wills executed by Olga and Archie while both were living. Each spouse by these instruments devised their contribution to the surviving spouse and expressed the desire that the surviving spouse provide amply for Roland.

In 1963, Olga died. Archie shortly thereafter executed a will devising all his property to Roland. In 1965, Archie married appellee Lorene C. Dexter in the state of Washington. From this point on, relations between Roland and Archie apparently deteriorated. In February, 1967, Archie executed his last will, devising all property to Lorene and in essence disinheriting Roland. In the same year Archie and Lorene conveyed the Marysville property to themselves as joint tenants. Subsequently they entered into contracts of sale for this property. Two deeds were placed in escrow pursuant to contract; one was later delivered and recorded, the other is still being held by the bank as escrow agent. Archie died testate in July, 1970, leaving all his estate to Lorene.

Roland contests the 1967 will. Three grounds are offered for his entitlement to Archie’s property. First, he asserts there was an oral agreement between his parents that Olga’s contribution to the purchase price of the Marshall County Farm and Marysville properties would be impressed with a trust should she die first. Archie would hold a life interest in the trust res with the residue going to Roland. Thus Roland is entitled to Olga's percentage of contribution. Second, the money contributed by Archie to the farm’s purchase and later to the purchase of town properties was a gift to Olga; thus all property held in joint tenancy became subject to the trust. Third, Lorene will be unjustly enriched if she is permitted to inherit the joint tenancy property since she contributed nothing to its purchase.

The trial court found that Archie and Olga owned all the real property in joint tenancy, no property had been solely owned by Olga during her lifetime, nor was there any written instrument creating a trust in favor of Roland in any of the property. The trial court further found as a matter of law that at Olga’s death title to the property passed to Archie; that all of Archie’s subsequent conveyances of that property validly passed title; and that at Archie’s death Lorene by virtue of her survivorship became the sole owner of all property she and Archie owned as joint tenants.

The trial court concluded that any oral agreements between Archie and Olga were insufficient to create a trust in favor of Roland. At most they were expressions of Archie’s and Olga’s intentions and thus unenforceable since they were not reduced to writing and executed in the manner required by state law.

Roland- argues a constructive trust should be impressed because Archie wrongfully administered the corpus of a trust established in Roland’s favor during Olga’s lifetime. Roland further alleges Lorene does not deserve to retain the proceeds from these properties as she did not contribute to the purchase of them. The trial court rejected the constructive trust theory, holding the evidence insufficient to clearly and unequivocally establish the existence of a trust. Salisbury v. Tibbetts, 259 F.2d 59 (10th Cir. 1958). In Kansas, before a constructive trust may arise, there must be a showing of fraud, unconscionable conduct or questionable ethics re-suiting in unjust benefit to the wrongdoer. In re Estate of Zimmerman, 207 Kan. 354, 485 P.2d 215 (1971). There is no showing of wrongdoing by Archie or Lorene in this case. Furthermore, as a valid express trust had not been created, Archie could not have been guilty of wrongfully administering a non-existent trust. As for Lorene, she is not holding property contrary to law. Regardless of the equities, an oral trust may not superimpose a deed absolute in its terms, for if this were so deeds would no longer be valuable as muniments of title. Silvers v. Howard, 106 Kan. 762, 190 P. 1 (1920). See also In re Estate of Zimmerman, supra ; Anderson v. Anderson, 155 Kan. 69, 123 P.2d 315 (1942); Goff v. Goff, 98 Kan. 201, 158 P. 26 (1916).

The trial court also rejected Roland’s argument that a resulting trust arose by virtue of K.S.A. 58-2408. This statute provides, inter alia, that a resulting trust arises when it appears that by agreement and “without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.” The Court holds this statute does not apply when' title to property is taken in joint tenancy.

The evidence also indicates Archie and Olga took title to their properties as joint tenants. Their respective interests were acquired by the instruments of conveyance creating the joint tenancy. Archie did not take Olga’s interest as a new acquisition, as under the laws of descent and distribution, but under the conveyances by which the joint tenancy was created. United Trust Company v. Pyke, 199 Kan. 1, 427 P.2d 67 (1967). Upon Olga’s death Archie therefore succeeded to a full estate in the properties and could do with them as he pleased.

We have carefully researched applicable Kansas law and find no error in the trial court’s decision based upon the facts as found. Although we might sympathize with Roland, we are not at liberty to alter state law to meet the equities of the case.

Affirmed.

      . KSA 58 — 2401. No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing. Roberts v. Roberts, 180 Kan. 85, 285 P. 584 (1930) ; Engelbrecht v. Herrington, 101 Kan. 720, 172 P. 715 (1918).