author: PALMIERI, District Judge:

text:
    UNITED STATES of America, Appellee, v. Robin YANISHEFSKY, Defendant-Appellant.
    No. 1145, Docket 74-1117.
    United States Court of Appeals, Second Circuit.
    Argued June 27, 1974.
    Decided July 30, 1974.

      Michael A. Young, New York City (The Legal Aid Society, William J. Gallagher, New York City, on the brief), for defendant-appellant.
    Steven A. Schatten, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y., John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.
    Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PALMIERI, District Judge:

Robin Yanishefsky was convicted of the unlawful possession of heroin and cocaine and of introducing and attempting to introduce these narcotic substances into the Federal Detention Headquarters at West Street, Manhattan, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 1791. After a finding of guilt on both counts, Judge Wyatt suspended imposition of sentence and placed appellant on probation for two years.

The facts established at the trial were substantially the following. The appellant visited the jail in the afternoon of October 31, 1973, to visit Roosevelt Bell, an inmate incarcerated for violations of the Mann Act, listing herself as his wife, although not married to him. The appellant, herself a smoker of Kool cigarettes, was observed by Michael Garone, a correction officer, and Arthur Gantt, an inmate, to toss a package of Kool cigarettes through a hole in the plexiglass wall of the bulletin board room. Bell had been previously observed peeking into this room. The package was immediately retrieved by Officer Garone and later found to contain five cigarettes, five glassine envelopes filled with heroin and four tinfoil packets of cocaine. She was followed out of the prison by Officer Garone and another prison official and was seen departing by taxicab. She was arrested two days later.

Upon this appeal it is claimed that Robin Yanishefsky had inadequate legal representation and that her conviction should be set aside on this ground.

We are constrained to reject this contention. This allegation is based on six grounds: (1) that her attorney should have requested a suppression hearing with respect to the identification testimony of Garone and Gantt which allegedly “was indisputably the product of an impermissibly suggestive” pre-trial photographic display; (2) that her attorney should have sought a suppression hearing with respect to appellant’s post-arrest statements allegedly taken in violation of her Fifth and Sixth Amendment rights; (3) that her attorney (a) failed to call as a witness one Lucy Wilson, Bell’s sister with whom appellant was living, who accompanied the appellant on her visit to West Street on October 31, 1973, and who allegedly would have given testimony exonerating appellant, and (b) that her attorney should have located and interviewed all one hundred of the visitors to West Street on that day, and that he should have requested a postponement once he received the visitors list at trial; (4) that he should have requested a court order - directing the West Street officials to allow him to inspect the scene of the crime; (5) that he conceded controvertible facts, and (6) that he made incomprehensive arguments “which served only to confuse the Court” and which seemed to “concede her guilt.”

We deal with these seriatim:

(1) Garone and Gantt each were shown a spread of six photographs. Garone picked Yanishefsky’s picture and we deal here only with his identification since it served as the primary basis for Judge Wyatt’s decision. Appellant suggests that the spread was impermissibly suggestive in that two were of women with black or dark brown hair, two (but not Yanishefsky’s) had names written on the front and the others had names on the back, only two were of blond women, and only one (Yanishefsky’s) portrayed “someone with the Slavic features implicit in the name Yanishefsky.” Notably, on cross-examination Garone repeatedly denied seeing any names or height scales on the photographs. Moreover, there is no implication in the record that his selection resulted from suggestion; indeed, he testified that “[a]ll I was looking for was the face that I remembered. . . .”

Whether the photographs used were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); United States v. Evans, 484 F.2d 1178, 1181-1187 (2d Cir. 1973), so that “allowing the in-court identification would be a denial of due process” turns on the “totality of the circumstances.” United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Having viewed the display ourselves, we doubt that it was impermissibly suggestive; we nevertheless assume arguendo that it was and turn to its effect on the in-court identification. Appellant contends that there was no independent basis for Garone’s in-court identification of Yanishefsky. She argues that Garone had only a “fleeting glance” of a “side face as she was going out,” and that he could only describe the woman as “tall,” “blond” and “white.”

In response to the question of why Garone had selected Yanishefsky’s photograph, appellant quotes the witness’s statement in the record: “I was looking for a tall blond woman and the nearest or the one was 6-A [the photograph of appellant], sir.” Appellant offers this as evidence that Garone was not making a direct identification of Yanishefsky as the woman that he saw on the day of the crime. But such argumentation is obviated by an examination of the record. The quoted response was not directed to questions purporting to elicit whether the picture selected was “nearest” to that of the person seen or whether it was actually one of the person herself, but the questions clearly and unequivocally pertained to whether Garone had seen names or height scales on the pictures and his response was that he had not because that was not what he was looking for.

Appellant’s “fleeting” “side face” view argument also fails to convince us. While it is true that Garone said that he identified appellant “through a side face as she was going out,” there is no evidence in the record indicating that his view of her was inadequate for him to formulate a clear visual and mental impression of her. United States v. Evans, supra, 484 F.2d 1181-1182. He identified her in court without hesitation as the person who threw the package of Kools into the bulletin board room. On direct examination he said that she was readily distinguishable from the two black women who were with her because she was the only white person of the three, and that “she was outstanding in height and characteristics, blond.” This statement was a reconfirmation of Gar-one’s response to a preceding question: Judge Wyatt — “[T]here was no question as to who had the cigarette package, it was this girl?” Garone — “That is right.” In sum, there is no support in the record for appellant’s assertion that Garone’s in-court identification was not based on his independent recollection of the events.

Upon a careful examination of the record and on the basis of the particular facts of this case, where Garone was within a few feet of the perpetrator at the moment of the crime and he was cross-examined sufficiently to bring the dangers of misidentification resulting from the photographic display to the court’s attention, Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. 967, 19 L.Ed.2d 1247, we conclude that Garone’s in-court identification of the appellant was based on his independent recollection of the events and that he was not relying on the photograph which he selected at the arguably impermissibly suggestive display. United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801 (2d Cir. 1973).

(2) Appellant argues that her attorney should have sought to suppress her post-arrest statements to FBI Agents Brotman and Corliss which included admissions that she had been at West Street on October 31, 1973, that she smoked Kool cigarettes and that she probably had a package of Kool cigarettes with her during the visit to West Street. Upon appellant’s arrest by FBI agents, a Kool package was found in her pocketbook. (Although appellant does not press this, she also admitted that she falsely listed herself as Bell’s wife on the visitor’s form.) The first two of these three admissions were established by independent evidence at the trial: a prison control room visiting card bearing that date and a visitor’s card from West Street bearing her signature and the date were introduced, and Agent Brotman testified that during their interview she specifically requested a pack of Kool cigarettes. She alleges here, for the first time, that prior to the trial she had advised her attorney that at the beginning of the interrogation she had requested and was denied counsel.

Thus, all that is presented is appellant’s bald assertion that she requested and was denied counsel, as opposed to the uncontradicted sworn testimony of Brotman that she was advised of her rights and that she refused to sign the waiver form but that she orally consented to speak with the agents. In fact, he testified that she had .not asked for counsel. It is also noteworthy that she made virtually identical admissions to the United States Attorney’s Office after again being advised of her rights.

Since appellant does not deny that the FBI agents advised her of her right to counsel, nor does she allege that her statements to them were in any way involuntary or coerced, there is no basis in the record for concluding that her admissions would have been inadmissible despite her post-trial assertion that she requested counsel. It follows that any motion to suppress would have been unsuccessful and that consequently the failure to make the motion cannot be deemed to be prejudicial to the appellant. See Massimo v. United States, 463 F.2d 1171, 1173 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973).

(3) Appellant urges that counsel should have called Lucy Wilson as a defense witness. It is conceded that counsel knew about Wilson, and it therefore cannot be said that his decision not to call her was not “informed, deliberate and rational.” United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127, 1134, 1136-1137 (1973). Simply put, appellant argues that the course taken demonstrated incompetence, and the Government counters by suggesting that it “seems more than likely that defense counsel representing the ‘wife’ of a Mann Act violator showed sagacity, rather than ineffectiveness, in declining to call the ‘sister’ of the Mann Act violator as a defense witness at a bench trial.” The selection of witnesses is clearly a matter of trial strategy, United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974); United States v. Matalon, 445 F.2d 1215, 1219 (2d Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 93 (1971), which the courts are extremely reluctant to second-guess. United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963). We see no reason to do so here.

Similarly, there is no merit to appellant’s contention that counsel should have interviewed all one hundred visitors to West Street on October 31, 1973. It is true that upon failing to get the list of visitors through informal discovery prior to trial, counsel waited until the first morning of trial before moving to obtain the information. But aside from the utter lack of practicality of appellant's suggestion the record clearly demonstrates that the only visitors who could have viewed the appellant during the alleged crime were those who were accompanying her in the enclosed, narrow hallway where it took place, and appellant does not deny that those two individuals were known by her. Appellant’s argument that this investigation was essential because counsel might have been able “to locate someone who might have observed something relating to the incident and who might be able to give testimony exculpatory to the defendant” clearly does not provide a basis for the conclusion that the failure to do so amounted to a failure of constitutional magnitude. Compare United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 43-45 (2d Cir. 1972), cert. denied, 410 U.S. 917, 93 S.Ct. 977, 35 L.Ed.2d 279 (1973). Nor does this demonstrate that as a result she was exposed to “a reasonable possibility of prejudice in fact.” United States v. Moher, 445 F.2d 584, 585 (2d Cir. 1971) quoting McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791, 793 (1965); United States ex rel. Marcelin v. Mancusi, supra, 462 F.2d at 47-48 (Kaufman, J., dissenting). ..

(4) Appellant argues that counsel was derelict in not arranging to investigate the physical scene of the crime at West Street. Appellant makes absolutely no showing of prejudice in this regard. Indeed, throughout the trial a diagram was used which had been furnished by defense counsel himself and he was diligent in exacting precise descriptions of every detail so as to leave no room for ambiguity or confusion. Moreover, despite counsel’s request to the court subsequent to the trial that he be allowed to visit the area in order to satisfy his professional curiosity, it is apparent from the record that prior to this case he had occasion to view the area from nearby and that in at least two prior instances he had observed and overheard activities therein. In addition, counsel demonstrated intimate familiarity with its layout and the prison procedures in his opening statement, and he had conferred with prison guards at West Street about these matters. Finally, pictures of the entire area were introduced at the trial. This argument is therefore unpersuasive.

(5) Appellant next argues that counsel’s inadequacy was demonstrated by certain concessions that he made as to “vital facts on which the Government’s proof was either controvertible or non-existent.”

Appellant argues that in his opening statement counsel provided the court with a missing link in the Government’s case by providing a reason why a visitor might drop a package into a room from which prisoners are ordinarily excluded —the statement being thqt"i'1f was his understanding that prisoners sometimes made unauthorized entries to wave a last goodbye to existing visitors. The force of this argument is vitiated by the fact that Judge Wyatt did not consider this statement in the light in which it is cast by appellant. This is clear from the fact that, as appellant concedes, Judge Wyatt repeatedly emphasized that he could not understand why the defendant would commit the act under the circumstances.

Appellant also argues that counsel, in cross-examining Gantt, assumed that Gantt saw Yanishefsky drop the pack of Kools into the room where he was standing when, in fact, Gantt had testified that he only saw the white woman move her hands and that he next saw the pack on the floor. Since Judge Wyatt based his decision on Garone’s testimony and only regarded Gantt’s as corroborative, it is highly dubious that this nicety of phraseology amounted to a “concession of a factual issue” in the context of a nonjury trial.

Appellant alleges similar incompetence in that counsel conceded that appellant was at West Street on October 31, 1973, and in that he entered into a stipulation that the warden had no prior knowledge that petitioner would attempt to introduce narcotics into West Street. Both of these contentions are frivolous.

(6) Finally, appellant contends that counsel’s statements confused the judge and tacitly conceded her guilt. We are unwilling to assume that Judge Wyatt could be “confused” by counsel, particularly at a simple trial such as this, or that he would be influenced by syntax which only arguably implies guilt. Indeed, Judge Wyatt expressly rejected appellant’s contention that her attorney had conceded her guilt by indicating his belief of certain aspects of a government witness’s testimony. Contrary \to appellant’s allegations, it is clear that Judge Wyatt understood her attorney's arguments far better than she did herself, and it is equally clear that Judge Wyatt, as 'f careful trier of the facts, cast counsel's arguments in the light most favorable to appellant.

The current standard of ineffective assistance of counsel in this circuit is that in order to be of constitutional dimensions the representation be so “woefully inadequate ‘as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.’ ” United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969), quoting United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); see also United States ex rel. Walker v. Henderson, supra, 492 F.2d at 1312; United States v. Sanchez, 483 F.2d 1052, 1057 (2d Cir. 1973).

“Errorless counsel is not required, and before we may vacate a conviction there must be a ‘total failure to present the cause of the accused in any fundamental respect.’ ” United States v. Garguilo, supra, 324 F.2d at 796, quoting Brubaker v. Dickson, 310 F.2d 30, 39 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963). Upon careful examination of the record reflecting the character of the “resultant proceedings,” United States v. Wight, supra, 176 F.2d at 379, and of appellant’s specific allegations, we find that taken individually and collectively, United States v. Sanchez, supra, 483 F.2d at 1058, they fail to meet the “stringent standards to be met to show inadequacy of counsel,” United States v. Maxey, 498 F.2d 474, 483 (2d Cir. 1974); United States ex rel. Marcelin v. Mancusi, supra, 462 F.2d at 42, and that Judge Wyatt was not clearly erroneous in rejecting this contention when it was brought before him at the time of sentence. Cf. United States v. Pfingst, 490 F.2d 262, 273 (2d Cir. 1973).

The experienced court made a careful evaluation of the claims of inadequate legal representation raised by letters from appellant to the court prior to sentencing and concluded that they were baseless. Indeed, Judge Wyatt said:

“The suggestion is that assigned counsel did not competently represent the defendant and on the basis of my own observations, I find this to be untrue. Counsel did a perfectly good job.”

We cannot conclude on this record that the legal representation of the appellant was constitutionally defective.

To be sure, appellant has a fall-back position. As an alternative to reversing for a new trial, she asks us to remand to the district court for a hearing to amplify the record on this issue. But while in some cases such a course might be advisable, see United States v. DeCoster, supra, note 2, 487 F.2d at 1204-1205; Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974), in this instance we believe it would serve no useful purpose. In sum, the arguments based upon a post-trial reappraisal of tactics and decisions the defense counsel might have chosen to adopt do not persuade us that the appellant can validly question her conviction on this ground.

Affirmed.

      . The Supreme Court has said, in a different context: “The principal value of counsel to the accused in a criminal prosecution often does not lie in counsel’s ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel’s concern is the faithful representation of the interest of his client, and such representation frequently involves highly practical considerations as well as specialized knowledge of the law. Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution, see Brady v. United States supra [397 U.S. 742, 751-752, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)], or by contesting all guilt, see Santobello v. New York, 404 U.S. 257 [92 S.Ct. 495, 30 L.Ed.2d 427] (1971).” Tollett v. Henderson, 411 U.S. 258, 267-268, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).

      . Apparently recognizing the weakness of her case under this standard, appellant urges that we adopt the less stringent standards of other circuits that a defendant is entitled to “counsel reasonably likely to render and rendering reasonably effective assistance,” Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), or that an accused be afforded counsel of “normal competency.” Moore v. United States, 432 F.2d 730, 737 (3d Cir. 1970) (en banc). See also West v. Louisiana, 478 F.2d 1026, 1032-1034 (5th Cir. 1973); United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1201-1204 (D.C.Cir. 1973). Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113, 116-117 (1967). We decline this invitation.


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Carmine TRAMUNTI, Defendant-Appellant.
    No. 1102, Docket 74-1398.
    United States Court of Appeals, Second Circuit.
    Argued June 6, 1974.
    Decided July 12, 1974.

      Jed S. Rakoff, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y„ S. Andrew Schaffer, Asst. U. S. Atty., of counsel), for appellee.
    Gretchen White Oberman, New York City (Jay Goldberg, New York City, of counsel), for defendant-appellant.
    Before KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of conviction entered on February 27, 1974, in the United States District Court, Southern District of New York, after a jury trial before Hon. Arnold Bauman, United States District Judge. The appellant, Carmine Tramunti, was convicted of six counts of giving false testimony under oath in violation of 18 U.S.C. § 1623. A seventh count was dismissed prior to trial. After an eight-day trial, the jury found Tramunti guilty on October 25, 1973, and, on February 27, 1974, Judge Bauman sentenced Tramun-ti to concurrent terms of five years imprisonment on each count.

The six counts charged Tramunti with lying when he testified, as a witness on his own behalf, in a 1971 trial where he was a defendant in a conspiracy, mail fraud and stock fraud case, United States v. Aloi, 70 CR. 967 (the “Imperial trial”). Tramunti was acquitted in that case but was convicted below of lying in the Imperial trial when he denied knowing and meeting five of the alleged co-conspirators in the Imperial scheme: Michael Hellerman (count 1), John Kelsey (count 2), Murray Taylor (count 3), Vincent Gugliaro (count 4) and Philip Bonadonna (count 5). The sixth count of which he was convicted charged that he had lied when he denied meeting with some of the alleged co-conspirators at Gatsby’s Restaurant, where the Imperial stock fraud deal was discussed.

On the trial below, Hellerman, a self-confessed securities swindler, testified for the Government and stated that he had been introduced to Tramunti by John Dioguardi, and that prior to the Imperial trial he had met Tramunti on at least six occasions at various night clubs and restaurants, including the Royal Box Club at the Americana Hotel, where he attended a show with, Kelsey and their wives. This testimony was corroborated in part by four other witnesses. Kelsey, another self-confessed stock swindler, also testified that he had been at the Gatsby luncheon, the meeting covered in count 6, with Tramunti, Taylor, Bonadonna, Dioguardi and two men named “Vinnie”. A Government exhibit, a photograph taken by an FBI agent, showed Tramunti and Gugliaro leaving a restaurant following the Fusco wedding reception in 1965.

I COUNT 4

No, question of insufficiency of evidence has been raised on this appeal except with respect to count 4 involving Tramunti’s acquaintanceship with Gugli-aro. It is urged that as a matter of law the FBI photograph showing the two men leaving a large wedding reception at the same time is insufficient evidence to establish that they knew each other.

The sufficiency of the Government’s case, however, is not to be determined by the photograph alone. After the Government rested, the defendant’s motion for a judgment of acquittal under Fed.R.Crim.P. 29, which permits the entry of a judgment of acquittal for insufficiency of the evidence, was denied. The defense then proceeded to present its case. The sufficiency of the evidence supporting count 4 must therefore be considered in conjunction with the evidence presented by the defense. United States v. Pui Kan Lam, 483 F.2d 1202, 1208 n. 7 (2d Cir. 1973); United States v. Arcuri, 405 F.2d 691, 695 n. 7 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). In the Imperial trial, Tramunti had testified that he had no recollection of ever having been at the restaurant in question and did not know of any wedding reception having been held there. On his direct examination below, Tramunti’s memory improved to the point that he was able to recall that several hundred people were at the reception. On cross-examination (during the course of which the Government confronted Tramunti with his earlier testimony), he recalled that he was present and was able to identify both himself and Gugli-aro in the photograph. He still denied having met or spoken to Gugliaro. The jury, having listened to Tramunti’s testimony and having heard his prior testimony about the wedding given at the Imperial trial, may well have believed that his denial that he knew Gugliaro was a fabrication. This was clearly a permissible inference, Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952) (L. Hand, J.), and, in view of his conviction, the inferences to be drawn must be considered in the light most favorable to the Government. United States v. Candella, 487 F.2d 1223, 1228 (2d Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974); United States v. Marrapese, 486 F.2d 918, 921 (2d Cir. 1973), cert. denied, 415 U.S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 891 (1974). Furthermore, the evidence on this count must be viewed in light of the totality of the Government’s case, since one fact may gain color rom others. United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972); United States v. Monica, 295 F.2d 400, 401-402 (2d Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962). We therefore cannot conclude that the evidence with respect to count 4 was insufficient to justify the verdict.

II THE IMMUNITY CLAIM

The cross-examination of Tramunti provides the basis for the principal argument made on this appeal. In 1966, Tramunti was subpoenaed as a witness before a federal grand jury. He refused to answer any questions, pleading the fifth amendment. Pursuant to 18 U.S. C. § 1406, a court order was obtained compelling his testimony but granting him immunity from the use of his testimony against him in any court. This grant of use immunity, as Judge Bau-man found, was not known either to defense counsel below, who had never previously represented Tramunti, or to Government counsel in this trial. On his cross-examination in this case, the Government read to Tramunti and asked him to account for his sworn testimony before the 1966 grand jury that he did not know what John Dioguardi, his friend of more than 20 years, did for a living and that he could not remember any of his own occupations of some two or three years before. Tramunti did recall at the trial below that Dioguardi was associated with Jard Products, and further did testify as to what his own occupations had been in 1963 and 1964. (On redirect examination, Tramunti testified that he did not know Dioguardi’s occupation in 1966, but learned about it between 1966 and 1971). There is no question but that this evidence was relevant — the Government was seeking to impeach Tramunti’s credibility as a witness on trial (by showing his ability to remember on this trial facts which he could not remember in 1966), and also to demonstrate prior similar acts (i. e., his wilful and intentional giving of false trial testimony in the 1971 Imperial case, which was the basis of his present indictment, was preceded by similar conduct before the grand jury).

Counsel for Tramunti objected to the admission of this evidence on trial on the ground of remoteness, and, on a post-trial motion under Fed.R.Crim.P. 33, on the ground that the 1966 grand jury evidence was inadmissible because of the use immunity which was provided by § 1406 and by the self-incrimination clause of the fifth amendment of the Constitution. The immunity issue remains the major argument on this appeal. Judge Bauman, in a decision read into the record, denied the post-trial motion for a new trial.

A. Applicability of Indiviglio

The court below held initially that since defense trial counsel had failed to make a specific, timely objection to the allegedly immunized testimony, even though the defendant’s constitutional rights were involved, the error would not be noticed under United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The court went on to state that, absent specific objection, the use of the evidence here did not amount to an injustice of sufficient magnitude to warrant invocation of the plain error rule. United States v. Bryant, 480 F.2d 785 (2d Cir. 1973).

We cannot agree that Indiviglio is applicable here. In that case, experienced trial counsel had objected to the introduction into evidence of statements made by the defendant on the ground that he had been illegally brought into the country by federal agents. The objection was overruled. On appeal, it was argued that the statements had been admitted in violation of the defendant’s sixth amendment right to counsel under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). These decisions had been handed down by the Supreme Court in May and June, 1964, and the defendant’s trial was conducted in October, 1964. In Indiviglio, this court twice commented upon the fact that experienced trial counsel should have been expected to note these opinions and evaluate their relevance. 352 F.2d at 279, 281. In United States v. Bryant, supra, also relied upon by the trial court, the appellant urged that a tape played at a trial before a jury should not have been admitted because the recording was inaudible. No objection was made on this ground either before or after the tape was played to the jury. We held that the appellant was not entitled as a matter of right to raise the issue on appeal. 480 F.2d at 789.

To the extent that Indiviglio is based on a theory of waiver, we do not think it controls, for we can find no waiver here. It is not disputed that trial counsel was actually unaware that the Tramunti 1966 grand jury testimony was immunized. Although trial counsel here was experienced and able, he had not represented Tramunti before. The Government argues that the appellant himself, the unwilling witness, obviously must have known that he was the beneficiary of whatever immunity he was granted. Although Tramunti is hardly a stranger in the criminal courts, we are loathe to attribute to him the legal sophistication necessary to appreciate, particularly while the subject of a vigorous cross-examination, the circumstances under which he testified in 1966, seven years before. As Judge Bauman noted on sentencing, Tramunti has lived his “adult life entirely outside the law”. His appearance in criminal proceedings was hardly of such moment that he could be reasonably expected to recall readily what, if any, cloak of immunity he was wearing in 1966. See United States ex rel. Raymond v. Illinois, 455 F.2d 62, 66-67 (7th Cir. 1971), cert. denied, 409 U.S. 885, 93 S.Ct. 103, 34 L.Ed.2d 141 (1972).

The Government argues, however, that Indiviglio does not rest upon the waiver theory; rather, the Government contends, it is bottomed upon the realization that the defense and the Government will inevitably suffer innocent lapses in perception during a trial which will preclude the court from noticing and correcting errors, and where the prejudice is so substantial as to result in fundamental unfairness, only then is a new trial warranted. Here, Judge Bau-man found that no such grave injustice warranting invocation of the plain error rule occurred. It is also argued that the error is not “plain” since the immunity question involved here is “close.”

We do not agree. As we have noted, this court in Indiviglio did emphasize that defense counsel should have made the objection on trial since he ought to have been familiar with previously decided major cases in the Supreme Court upon which his subsequent appellate position was based. In Bryant, the inaudibility of the tapes was again immediately determinable at trial and this factor was noted on the appeal. Two additional cases are cited on appeal by the Government to establish that a “close” legal question does not constitute plain error, United States v. Manning, 448 F.2d 992, 1000, 1002 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971), and United States v. Wright, 466 F.2d 1256, 1259 (2d Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973). Manning involved the question of probable cause for making an arrest and seizure of narcotics in an apartment occupied by the appellant. On appeal, appellant urged for the first time that even if probable cause existed, the agent did not make a “sufficient announcement” to justify kicking the apartment door open. While the point is not mentioned explicitly in the opinion, it seems obvious that this was a case in which the issue on appeal could well have been made below. There was no suggestion whatsoever that the facts or the law involved came as any surprise to trial counsel. Wright is even less supportive of the Government’s position. There, the appellant for the first time on appeal raised the question of the constitutionality of the federal wiretap statute. In relying upon Indiviglio, this court specifically noted the “striking” failure of the appellant to raise the issue on trial, particularly since counsel had reserved the right to raise the wiretap issue pending discovery but failed to move to suppress after receiving it. 466 F.2d at 1259.

In short, the “close question” approach taken in both of these cases in refusing to apply the plain error rule was in a setting of inadvertence or neglect on the part of trial counsel below. The case before us is markedly distinguishable. Not only was there no inadvertence or neglect on the part of trial counsel, but, in addition, the Government was culpable for the failure of trial counsel to make the appropriate specific objection. There is no suggestion that the Government deliberately suppressed the fact of appellant’s 1966 immunity. It was found below and is not contested by appellant that trial counsel for the Government was as ignorant as defense counsel. However, the reason for the Government’s lack of knowledge, as revealed in its affidavit on the Rule 33 motion below, was that the grand jury transcript upon which it relied failed to disclose that the Tramun-ti testimony was immunized. Since the Government obviously intended to use the 1966 transcript in the trial below, we do not think it unreasonable to expect that it should have made the inquiry before the trial rather than after, when it was advised by defense counsel that he believed the testimony may have been immunized. The grand jury transcript was available to the Government, and if it intended to use it and knew or should have known that the testimony •recorded therein had been immunized, this should have been brought to the attention of defendant’s counsel in order to permit the raising of the specific question.

What we have here, in sum, is the reverse of Indiviglio — the failure to use a reasonable degree of care, in our view, was the fault of the Government and not of defense counsel. The perjury charges here were not based on the 1966 grand jury testimony but on the testimony given in the Imperial trial of 1971. We cannot expect clairvoyance on the part of defense counsel, nor, as we have indicated, legal acumen on the part of the defendant. By the same token, we do not think that the “close question” approach of Manning and Wright to the plain error doctrine is appropriate here. The appellant claims a serious infringement of fifth amendment and statutory rights which are fundamental in our system of criminal jurisprudence. Moreover, this important issue was raised by defense counsel at the earliest possible time, in the Rule 33 motion, and has been fully briefed and argued on this appeal. We think that simple justice requires that we meet this issue squarely. We therefore do not consider Indiviglio applicable.

Thus we come to the real issue on appeal: were Tramunti’s fifth amendment and statutory rights to use immunity violated below? The transcript of the immunized testimony before the grand jury was used in a subsequent criminal case against the interests of the unwilling witness. However, we agree with Judge Bauman’s conclusion that this violated neither the constitutional nor the statutory rights of the appellant.

B. The Constitutional Question

The power of the Government to compel testimony is unquestioned, but the power is not absolute. The most important exemption from the obligation of a witness to testify is the fifth amendment privilege against compulsory. self-incrimination. The accommodation between the right of the Government to compel testimony, on the one hand, and the constitutional privilege to remain silent, on the other, is the immunity statute. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court reiterated the constitutionality of so-called use immunity statutes, where an unwilling witness is given immunity from the use of the compelled testimony or the use of evidence derived from such testimony in subsequent criminal proceedings. The Court held then that transactional immunity, which provides an absolute bar against future prosecution for the crimes disclosed, constituted broader protection than the fifth amendment privilege required.

The theory of immunity statutes is that in return for his surrender of his fifth amendment right to remain silent lest he incriminate himself, the witness is promised that he will not be prosecuted based on the inculpatory evidence he gives in exchange. However, the bargain struck is conditional upon the witness who is under oath telling the truth. If he gives false testimony, it is not compelled at all. In that case, the testimony given not only violates his oath, but is not the incriminatory truth which the Constitution was intended to protect. Thus, the agreement is breached and the testimony falls outside the constitutional privilege. Moreover, by perjuring himself the witness commits a new crime beyond the scope of the immunity which was intended to protect him against his past indiscretions. This is not only a rational explanation of the accommodation between the competing interests and rights of the parties, but it is supported by authority. In Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911), a bankrupt was required to answer questions under oath pursuant to an immunity provision of the Bankruptcy Act of 1898 which provided without exception that no such testimony “shall, be offered in evidence against him in any criminal proceeding.” Glickstein, the bankrupt, was later prosecuted and convicted for perjurious statements made in the immunized proceeding, although objection was made that the use of the statements violated the language of the immunity clause. In affirming the conviction, the Supreme Court (relying, inter alia, on Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), reaffirmed in Kastigar) held that the fifth amendment did not preclude the compelling of incriminating testimony provided the immunity in all respects be commensurate with the constitutional limitation. The Court further stated:

[I]t cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances and safeguards as to compel it to be truthful. In other words, this is but to say that an authority which can only extend to the licensing of perjury is not a power to compel the giving of testimony. Of course, these propositions being true, it is also true that the immunity afforded by the constitutional guarantee relates to the past and does not endow the person who testifies with a license to commit perjury.

222 U.S. at 142, 32 S.Ct. at 73.

Precisely the same rationale was applied in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950), which involved the refusal of a witness at a congressional hearing to answer a question or to produce records despite an automatic immunity then provided for such witnesses. The use immunity statute at issue, 18 U.S.C. § 3486 (repealed in 1970), did have an express exception for perjury but not for the contempt proceeding which ensued upon the refusal of the witness to cooperate. While allowing that the language of the statute literally protected the defendant, the Supreme Court nevertheless reversed the circuit court which had reversed her conviction below. The Court stated:

By granting an immunity, it was the congressional intent to compel testimony which had hitherto been unavailable.
It is now contended that the protection of the statute, which was extended to witnesses in an effort to obtain testimony, protects equally the person who wilfully withholds testimony and is prosecuted for his wilful default. This contention completely ignores the purpose of the immunity.

339 U.S. at 338, 70 S.Ct. at 734.

The Court further held:

The debates attending enactment of the statutes here in question and the decisions of this and other federal courts construing substantially identical statutes make plain the fact that Congress intended the immunity therein provided to apply only to past criminal acts concerning which the witness should be called to testify. The offense of contempt of Congress, with which we are presently concerned, on the other hand, matures only when the witness is called to appear before the committee to answer questions or produce documents and wilfully fails to do so. Until that moment he has committed no crime. There is, in our jurisprudence, no doctrine of “anticipatory contempt.” While the witness’ testimony may show that he has elected to perjure himself or commit contempt, he does not thereby admit his guilt of some past crime about which he has been summoned for questioning but commits the criminal act then and there.

339 U.S. at 340-341, 70 S.Ct. at 735 (footnote omitted) (emphasis in original).

The rationale of Glickstein and Bryan is clear. The immunity granted by the Constitution does not confer upon the witness the right to perjure himself or to withhold testimony. The very purpose of the granting of immunity is to reach the truth, and when that testimony is incriminatory, it cannot be used against him. If the witness thwarts the inquiry by evasion or falsehood, as the appellant did here, such conduct is not entitled to immunity. In fact, another crime not existing when the immunity was offered is thereby committed. The immunity does not extend in futuro. United States v. Winter, 348 F.2d 204, 208-209 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965); United States v. Pappadio, 346 F.2d 5, 8 n. 3 (2d Cir. 1965), vacated on other grounds, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); People v. Tomasello, 21 N.Y.2d 143, 150, 287 N.Y.S.2d 1, 6, 234 N.E.2d 190, 193 (1967).

Appellant argues that a total prohibition of immunized testimony is required by the fifth amendment under Kastigar. The question as to whether or not perjury is immunized was not before the Court in that case, which reaffirmed prior holdings of the Court that use immunity was sufficient to comply with the fifth amendment privilege. Moreover, the very statute involved in Kastigar did contain an exception which permitted a subsequent prosecution for perjury. This, if anything, bolsters the argument that perjured testimony is not constitutionally immunized.

Cameron v. United States, 231 U.S. 710, 34 S.Ct. 244, 58 L.Ed. 448 (1914), is relied upon by the appellant for the proposition that Glickstein is somehow limited. We do not see how Cameron aids the appellant. In that case, the Government sought to introduce truthful testimony of the immunized witness to establish that he later committed perjury in another proceeding. The truthful testimony was compelled and properly found to be inadmissible in the subsequent perjury proceeding. The distinction is clearly drawn in United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), which cites Kastigar and which emphasizes that the immunity is for truthful statements:

But quite apart from any question of self-incrimination, a witness who testifies before a grand jury is required and sworn to tell the truth. The grant of immunity is superimposed upon that requirement. Protection is granted against future injurious use of the incriminating truth that the witness is required to speak, not against prosecution for or the use of any exculpatory falsehood that he may utter to avoid the required admission of wrongdoing. Hence, the immunity statute properly permits prosecution for perjury committed in an otherwise immunized statement and also the introduction in evidence of so much of the statement as is essential to establishing the corpus de-licti.

474 F.2d at 249.

In sum, we think that both reason and authority compel the conclusion that there was no violation of the appellant’s constitutional rights.

C. The Statute

Section 18 U.S.C. § 1406, the immunity statute in issue here, provided in pertinent part:

nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.

Appellant argues that, aside from any constitutional question, the intent of Congress was that the sole remedy of the Government in the case of false testimony given under the immunity grant is a prosecution for perjury or, if testimony is withheld, for contempt. The statute should not be interpreted to permit the use of the testimony in other criminal trials not based on the original perjurious statements. While this presents a closer question than the constitutional argument discussed above, we do not agree that the Congress intended to so immunize false testimony beyond the protection afforded by the fifth amendment.

In the first place, the question before us is not new. In Glickstein, the immunity statute contained no exceptions whatever, and yet the Court held that it did not bar a later criminal action for perjury. At the time of Glickstein, the perjury exception had been added to statutes enacted after the one then before the Court, and the argument was made that since no exception had been created in the statute in issue, it was to be presumed that none was intended. In answer, the Supreme Court observed:

[I]t is impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity in the absence of the most express and specific command to that effect.
Bearing in mind the subject dealt with we think the reservation of the right to prosecute for perjury made in the [later] statutes to which we have referred was but the manifestation of abundant caution, and hence the absence of such reservation in the statute under consideration may not be taken as indicative of an intention on the part of Congress that perjury might be committed at pleasure.

222 U.S. at 143-144, 32 S.Ct. at 73.

The same argument was again made in Bryan, where the immunity statute at issue did include an exception for perjury but was silent as to the contempt proceeding. It was urged, therefore, that the Congress only intended to exempt perjury. The Supreme Court once more 'held that the perjury exemption was added only from superfluous caution. The Court refused to construe the statute to exempt only perjury because to have done so would have simply encouraged the refusal of witnesses to answer questions or to produce papers, which was contrary to the purpose of the statute. 339 U.S. at 342-343, 70 S.Ct. 724. See Heike v. United States, 227 U.S. 131, 141, 33 S.Ct. 226, 57 L.Ed. 450 (1913). Thus, there is square authority' in the United States Supreme Court holding that the listing of exceptions in immunity statutes for subsequent criminal prosecutions is not intended to be an exclusive enumeration. The immediate and obvious response intended by Congress to the witness who commits perjury or refuses to answer despite the immunity grant is the perjury or contempt action. While this case presents a situation one step removed from those which faced the Court in Glickstein and Bryan, we think that the rationale of those cases is dispositive here. The failure to include in the exceptions to the statute the use of false testimony to attack credibility or demonstrate the commis.sion of prior similar acts does not prevent such use. To hold otherwise in this situation, one not readily foreseeable by the legislature, would be to frustrate the purpose which this statute was designed to achieve.

Moreover, the statute speaks of “compelled testimony,” and the eases establish that this is the incriminatory truth not otherwise available which is at the heart of the immunity intended to be established by the congressional enactments. We therefore cannot attribute to Congress an intent to limit the use of testimony given in violation of the oath solely to the exemptions set forth in the statute.

Judge Bauman, in a hearing after trial, found that Tramunti’s 1966 grand jury testimony was false and evasive. His failure then to remember his own and John Dioguardi’s occupations was established to be false by particularly compelling evidence of perjury. Because it was false, his grand jury testimony was admissible on this perjury trial, not only to impeach his credibility, but also as testimony of prior similar acts. See, e. g., United States v. Berlin, 472 F.2d 1002, 1006 (2d Cir.), cert. denied, 412 U.S. 949, 93 S.Ct. 3007, 37 L.Ed.2d 1001 (1973); United States v. Warren, 453 F.2d 738, 745 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972); United States v. Diorio, 451 F.2d 21, 23 (2d Cir. 1971) (per curiam), cert. denied, 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232 (1972); United States v. Sweig, 441 F.2d 114, 119 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971); United States v. Courtney, 257 F.2d 944, 946 (2d Cir. 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 316, 3 L.Ed.2d 303 (1959).

Ill COLLATERAL ESTOPPEL

Appellant argues here and moved below to dismiss the indictment on the ground that prosecution was barred by the doctrine of collateral estoppel. Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971) (per curiam). His acquittal in the Imperial trial, the argument runs, established that the jury in that case had determined the truth of the statements that Tramunti is now charged with having made falsely. Judge Bauman denied the motion to dismiss, this court denied without opinion the application for a writ of prohibition based on the denial of the motion (Tramunti v. Bauman, Docket No. 73-2128) and a petition to the Supreme Court for a writ of certiorari was denied (414 U.S. 1129, 94 S.Ct. 867, 38 L.Ed.2d 754 (1974)).

There is no basic dispute as to the law to be applied here. The double jeopardy clause of the fifth amendment includes within its doctrinal scope the principle of collateral estoppel. Thus, a defendant in a criminal case cannot be convicted on the basis of an issue of ultimate fact which has been determined in the defendant’s favor in a prior criminal proceeding involving the same parties. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747 (1951). Where a general verdict was reached in the previous case, a court must examine the record, pleadings, evidence, charge and other pertinent matter in the prior ease in order to determine “ ‘whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194.

In order to establish that the present prosecution is barred by the previous acquittal in Imperial, the burden is on the appellant to show that the verdict there necessarily decided the issues now in litigation. United States v. Friedland, 391 F.2d 378, 382 (2d Cir. 1968). Since it is usually impossible to determine with any precision upon what basis the jury reached a verdict in a criminal case, it is a rare situation in which the collateral estoppel defense will be available to a defendant. United States v. Cioffi, 487 F.2d 492, 498 & n. 8 (2d Cir. 1973).

In our view, the defendant has not established that such a situation exists here, and the authorities upon which he relies are distinguishable. In the Imperial trial, the Government attempted to demonstrate that some 10 defendants had engaged in an elaborate conspiracy of securities manipulation and mail fraud. The proof that Tramunti was a conspirator was dependent upon' proof that he was present at a luncheon at Gatsby’s Restaurant at which a discussion was held on the subject of producing “front money” to finance the scheme. Two witnesses, Taylor and Kelsey, testified that he was present at the luncheon. The only evidence that he participated in the hatching of the scheme was that he either nodded his head or that he actually stated that he would not put up the money. Tramunti testified that he was not at that luncheon and that he did not know and had never met Taylor or Kelsey. He also denied knowing or meeting Bonadonna or Gugliaro, who, according to the Government, were also at the Gatsby luncheon. He denied knowing or having met Hel-lerman, although Kelsey testified in the Imperial trial that he and Hellerman had met Tramunti at the Americana. (Hellerman took the fifth amendment at the Imperial trial but was voluble in the trial below.) In essence, appellant argues that the jury’s acquittal in the Imperial trial established that he did not lie when he testified that he was not at the Gatsby luncheon and did not know Kelsey, Taylor, Gugliaro and Bonadonna, his alleged luncheon companions. Of course, Tramunti was not charged in the Imperial trial with merely going to lunch at Gatsby’s or knowing the individuals he denied knowing, but rather with conspiracy to commit a securities fraud and other violations of criminal law. The jury may well have believed that Tramunti knew each of the five men he denied knowing and even attended the luncheon at Gatsby’s, but was not guilty of the conspiracy charged. It does not at all follow, as argued by appellant, that the issue necessarily decided by the verdict was that Tramunti was not present at the meeting since his presence established his guilt of conspiracy.

The Government case against Tra-munti in Imperial was weak at best. Even if he had been present at Gatsby’s, the evidence of his knowing participation in a criminal enterprise was feeble. The only evidence of his part in the scheme was either a nod of the head or his comment “No, there will be no front money,” which, as his counsel pointed out in summation at that trial, might well have meant that he was disassociating himself from the venture. Defense counsel in that case argued further in summation that Tramunti’s knowing the Imperial defendants was hardly enough to establish that he was guilty of conspiracy. The trial court emphasized in his charge to the jury in the Imperial case that mere “knowledge of somebody that another person is doing something illegal ... is not sufficient to establish membership in the conspiracy.” He instructed that the jury must find “that that defendant knowingly and wil-fully joined the conspiracy with the specific intent and purpose of furthering its objective. The question is one of intent, and that is one of fact, and that is for you to decide.”

In light of the foregoing, it may very well have been that a jury could disbelieve Tramunti’s denial that he knew the Imperial defendants, as well as his denial of his presence at the celebrated luncheon, and still acquit him because of the abysmal failure of the Government’s proof that this isolated emergence of Tramunti in an intricate scheme established the specific intent necessary for conviction of a conspiracy charge. Certainly, the defendant has failed to show that the jury verdict necessarily demonstrates that the jurors acquitted him because they believed he knew none of the alleged villains and never broke bread with them at Gatsby’s.

The cases relied upon by appellant are markedly different. In United States v. Nash, 447 F.2d 1382 (4th Cir. 1971), the defendant had been accused of mail theft. Postal inspectors testified at the trial that they had observed defendant, a post office employee, take from a mail box in the post office an envelope containing a letter, two dollar bills and three 25-cent pieces affixed to a piece of cardboard. The envelope had been placed in the mail box by the inspectors, and the dollar bills and cardboard had been sprinkled with a fluorescent powder. The inspectors followed the defendant into the ladies’ rest area and, on searching her, discovered the marked quarters. The defendant testified that she had not taken the envelope and that she had obtained the quarters from a change machine. The jury acquitted defendant of the charge. Thereafter, she was indicted for perjury in the mail theft trial for giving a false explanation of the source of the quarters. In the mail theft trial, there were only two reasonable and conflicting explanations for the undisputed possession of the money to be considered by the jury. On these facts the court concluded: “the jury ‘necessarily’ had to pass upon the truthfulness of her account. The issue was ‘crucial’ and once adjudicated, its rede-termination in a trial for another offense is estopped.” . 447 F.2d at 1385. In this case, however, there was no such clash of conflicting explanations. As we have pointed out, the jury here could well have disbelieved Tramunti’s denial of his presence at Gatsby’s and still have found that his presence was innocent and therefore insufficient to establish the specific intent to conspire which was essential to the Government’s case.

In United States v. Drevetzki, 388 F.Supp. 403 (N.D.Ill.1972), the defendant was again initially acquitted of the substantive crime of theft from interstate commerce. The major evidence against him was the testimony of an agent that the defendant had confessed the theft to him. The defendant admitted the conversation but denied the admission of guilt. On his subsequent perjury trial, the court held that the previous acquittal necessarily established that the jury disbelieved the agent’s story, since a rational jury could not have accepted the agent’s testimony and rejected defendant’s and still have reached a verdict of acquittal. Again, the case is inapposite since the crime charged here initially, unlike that in Drevetzki, was one of conspiracy, the principal element of which is an intent which was not necessarily established by Tramunti’s presence at Gatsby’s.

The flaw in appellant’s reasoning is that it assumes from the proposition that the Government never could get a conviction without establishing the Gatsby meeting that proof of the meeting alone would establish guilt of the conspiracy. As we have indicated, the Government case required much more than proof of the meeting, where Tramunti was either mute or, at best, opposed to the suggested plan. Even less persuasive is the contention that the jury must have believed Tramunti’s denial that he knew the five Imperial conspirators. Acquaintance with the conspirators or even knowledge of what they were up to was, as' emphasized by defense counsel, certainly insufficient to establish Tra-munti’s knowingly entering a conspiracy with them with the intent to commit specified crimes. In fact, the jury only convicted two defendants in the Imperial trial, Alpert and Weiss, who were not shown to have had any particular connection with Tramunti.

Having taken into consideration the record of the Imperial trial, the pleadings, the evidence, the summations and the charge, we conclude that “a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194. We find no error in Judge Bauman’s refusal to grant dismissal at the close of the Government’s case on the ground of collateral estoppel.

IV THE BRADY CLAIM

At the trial, the Government called one Gilbert Dragani who testified that he had seen Tramunti in the office of Michael Hellerman in 1970 at a stock closing. Count 1 of the present indictment charged Tramunti with perjury when he denied knowing Hellerman, and hence the testimony was clearly relevant. The Government learned about Dragani when he identified Tramunti from a spread of photographs shown to him while another Assistant United States Attorney was preparing for an unrelated case. Two other people who were at Hellerman’s office at the 1970 stock closing, Andrew Nelson and Donald Fisher, were shown the same spread of photographs and were unable to identify Tramunti. The Assistant United States Attorney in the other case did not reveal this non-identification to the prosecutors in the instant case, and it did not become known until after the trial below was concluded. Appellant urges that this non-disclosure precluded a searching cross-examination which would have discredited Dragani’s testimony, and that it therefore constituted a denial of due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A post-trial motion to set aside the verdict on this ground was denied by the trial judge. We hold that the motion was properly denied since the evidence was not material.

Dragani’s identification was only relevant to count 1 of the indictment, which related to Tramunti’s denial that he knew or had ever met Hellerman. However, this count was supported by the evidence of Hellerman, Mrs. Hellerman, John Kelsey and Mrs. Kelsey. Their testimony was, to some extent at least, supported by two other witnesses, Bozzi and Barone. In light of this other evidence, we cannot find the non-identification by Nelson and Fisher to be material. Moore v. Illinois, 408 U.S. 786, 798, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Compare Grant v. Allredge, 498 F.2d 376 (2d Cir. 1974). In any event, Dragani’s credibility did not remain unscathed. His cross-examination below developed the facts that he had pleaded guilty in a stock fraud case, that he had defrauded the public, that he had received lenient treatment from the Government and that he was anxious to avoid jail. On summation, he was described in extremely harsh terms as a liar with a criminal record. In view of these assaults, it is difficult to see how further ammunition would have been of significance. United States v. Pfingst, 490 F.2d 262, 277 n. 16 (2 Cir. 1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974).

It must also be noted that trial counsel for Tramunti had represented a defendant in the stock fraud case which involved Dragani, Nelson and Fisher. He had received a copy of the indictment in that case and he was on notice of the basic facts which could have produced this alleged exculpatory testimony. Instead, he chose on summation to call attention to the failure of the Government to call upon other witnesses who could have corroborated Dragani’s testimony that Tramunti was at the closing. In view of this, we see no occasion to invoke Brady. United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973).

Appellant’s other arguments are without merit.

Affirmed.

      . 18 U.S.O. § 1406 provided :
      Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of [certain specified offenses] is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.
      This section was repealed in 1970 and replaced by 18 U.S.C. § 6002. The statute repealing § 1406 provided that repeal would not affect any immunity to which a person was entitled under a repealed provision by reason of any testimony given before the repeal date. Organized Crime Control’ Act of 1970, Act of Oct. 15, 1970, Pub.L.No.91-452, § 260, 84 Stat. 932.

      . Fed.R.Crim.P. 52(b) provides :
      Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

      . Defense counsel cannot fairly be penalized for failure to raise at trial an issue of which he was, without his own fault, ignorant. Cf. Dallago v. United States, 138 U.S.App.D.C. 276, 427 F.2d 546, 554-555 (1969); Osborne v. United States, 351 F.2d 111, 116 (8th Cir. 1965); United States v. Grady, 185 F.2d 273, 274 (7th Cir. 1950); United States v. Douglas, 155 F.2d 894, 896 (7th Cir. 1946). See also Leary v. United States, 395 U.S. 6, 27-28 (1969); United States ex rel. O’Connor v. New Jersey, 405 F.2d 632, 634 n. 2 (3d Cir.), cert. denied, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969); United States ex rel. Daskal v. Nena, 361 F.2d 178, 180 n. 1 (2d Cir.), cert. denied, 385 U.S. 874, 87 S.Ct. 150, 17 L.Ed.2d 102 (1966). In United States v. Hart, 407 F.2d 1087, 1089 (2d Cir.), cert. denied, 395 U.S. 916, 89 S.Ct. 1766, 23 L.Ed.2d 231 (1969), this court said:
      Normally the failure to raise a constitutional question by a proper objection at trial forecloses consideration of that question on appeal. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). However, where a constitutional ground recognized for the first time in a Supreme Court decision is to be given retroactivity, the blind application of Indiviglio would be unduly harsh where the principle was unknown to counsel at the time of trial.

      . The use immunity statute held constitutional in Kastigar, 18 U.S.C. § 6002, is the successor of 18 U.S.C. § 1406, which is involved on this appeal. See note 1 supra. There is no dispute that § 1406 provided use and not transactional immunity here.
      In Kastigar, the Court explicitly reaffirmed its prior holdings in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), which upheld the constitutionality of immunity statutes. 406 U.S. at 448, 92 S.Ct. 1653.

      . Appellant’s reliance on Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), is misplaced. Appellant urges that the case is authority for the proposition that grand jury evidence, even if false or evasive, is entitled to fifth amendment protection. However, the language relied upon refers to use of compelled testimony in tlie prosecution of the underlying crime which had been the subject of the investigation, and not, as here, to its use in an unrelated prosecution for perjury. 371 U.S. at 350 n. 10, 83 S.Ct. 448, 9 L.Ed.2d 357.

      . The Imperial indictment charged 16 defendants and 12 other coconspirators with conspiracy and some with additional substantive counts of securities fraud and mail fraud. Tramunti was one of the latter group. With respect to the substantive counts against Tramunti, the Government’s theory was that Tramunti was guilty of the conspiracy charge and therefore was responsible for the substantive crimes which were allegedly committed in furtherance of that conspiracy. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

      . The defense also argued in the summation that the evidence, if supportive of any finding of conspiracy at all, showed the existence of multiple conspiracies. See Kotteak-os v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

      . See United States v. Purin, 486 F.2d 1363, 1369 (2d Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974); United States v. Fantuzzi, 463 F.2d 683, 690 (2d Cir. 1972); United States v. Cimino, 321 F.2d 509, 510 (2d Cir. 1963), cert. denied, 375 U.S. 974, 84 S.Ct. 491, 11 L.Ed.2d 418 (1964); United States v. Bentvena, 319 F.2d 916, 949 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); United States v. Stromberg, 268 F.2d 256, 267 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959); United States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff’d, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940) (L. Hand, J.). The judge in the Imperial trial charged the jury that “mere association of a defendant with an alleged co-conspirator does not establish his participation in the conspiracy, even if you find that there was a conspiracy.”

      . Tramunti’s counsel made, inter alia, the following remarks about Dragani in his summation :
      Dragani stands before you as a monument, really, to the lengths that people will go when they are facing jail and they are trying to win the favor of somebody who lias an awful lot to say in the sentencing process.
      Dragani is charged in 30 counts, 30 crimes, and the Government lets him plead guilty to one.
      I ask you and X ask the prosecutor how many crimes, how many felonies, how much lying, how much cheating and deception must a given particular person be guilty of before he really forfeits his right, forfeits his right to be believed by people in a matter as serious and as vital as the one you have before you?


author: PER CURIAM: MOORE, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Linda H. SCHWARZ, Appellant.
    No. 1152, Docket 74-1455.
    United States Court of Appeals, Second Circuit.
    Argued June 27, 1974.
    Decided July 23, 1974.
    Lawrence Stern, New York City (Oilier & Schmukler, Howard J. Diller, New York City, on the brief), for appellant.
    Joan S. O’Brien, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the E. D. N. Y., Raymond J. Dearie, Asst. U. S. Atty., on the brief), for appellee.

      Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

The appellant, a first offender, was sentenced to four years imprisonment pursuant to 18 U.S.C. § 4208(a)(2) and three years special parole.

It is common ground that the appellant is a young lady with a stable family background. She was 25 years of age at the time of the plea and sentence and had had no previous contacts with law enforcement authorities. An honor student and a college graduate, the appellant was the product of an intact, financially secure home. She was engaged to be married and has been married during the course of these proceedings. She made a full acknowledgment of her offense and cooperated with the Government. There was no evidence that she was connected with any organized criminal activity. On February 19, 1974, her constitutional rights to indictment and trial were waived and a plea of guilty was entered to a one count information.

Concededly, the appellant was eligible by virtue of her age and as a “young adult offender,” 18 U.S.C. § 4209, for the treatment provided under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq., and could have been sentenced pursuant to its provisions. While the district court acted within the scope of its discretionary powers, 18 U.S.C. § 4209, in rejecting her plea to be sentenced as a “young adult offender,” we are constrained to disapprove of the manner in which this was done and to remand the case for re-sentence before another judge.

During the rather extended colloquy attendant upon her sentencing proceedings, the district court made much of the fact that the appellant came from a privileged background rather than from “the ghetto” and was not the “usual dumb kid.” The court referred to her as one “far above the average, so that she knew what she was doing.” Understandably, the appellant has been left with the impression, forcefully argued to us by her counsel, that her intelligence and privileged background were counted against her as pejorative factors disentitling her to treatment under the Youth Corrections Act. The court’s explication, coupled with its express refusal of what appears to have been a joint request of defense counsel and the United States Attorney that the court make a specific finding that appellant would not derive benefit from treatment under the Act, leads us to conclude that the court employed a fixed and mechanical approach in imposing sentence rather than a careful appraisal of the variable components relevant to the sentence upon an individual basis. Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 247-250, 69 S.Ct. 1529, 93 L.Ed. 1760 (1949). This situation requires us to invalidate the sentence. United States v. Brown, 470 F.2d 285, 288-289 (2d Cir. 1972); United States v. Baker, 487 F.2d 360, 362-364 (2d Cir. 1974) (Lumbard J., dissenting; Woolsey v. United States, 478 F.2d 139, 143-145 (8th Cir. 1973). We are aware that United States v. Kaylor, 491 F.2d 1133 (2d Cir. 1974) (en banc) dealt with the “youth offender” and required no express finding in this case of a “young adult offender” that she would derive “no benefit” from a sentence under the Youth Corrections Act. Compare Dorszynski v. United States, -U.S.-, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). The presence or absence of the specific finding sought by the attorneys is not a controlling factor. The court’s statements, considered as a whole, were inappropriate because they are susceptible of the meaning that only a specific class of persons can claim consideration under the provisions of the Act.

Under these circumstances we direct that the case be reassigned for sentence by another judge “both for the judge’s sake and the appearance of justice,” Mawson v. United States, 463 F.2d 29, 31 (1st Cir. 1972) (per curiam); United States v. Brown, supra.

Judgment reversed with instructions to vacate the sentence and to proceed to resentence in a manner consonant with this opinion.

MOORE, Circuit Judge

(dissenting):

Before characterizing the sentencing procedure adopted by the sentencing judge in imposing sentence as “a fixed and mechanical approach * * * rather than a careful appraisal of the variable components relevant to the sentence upon an individual basis” and hence, as the majority states, a situation is presented which “requires us [the majority] to invalidate the sentence,” it may not be amiss to examine the transcript to ascertain what the “situation” really was.

This young lady, anxious to take advantage, if possible, of being sentenced under the Youth Corrections Act, 21 U. S.C. § 841(a)(1) pleaded guilty, on February 19, 1974, before Chief Judge Jacob Mishler to an information charging her with wilfull and knowing possession of four ounces of cocaine with intent to sell or deliver it for someone else’s use. Upon thorough and protracted questioning by the Court, the defendant admitted possession of the cocaine; that she was delivering it to someone else; that she knew the maximum sentence could be fifteen years plus a fine and parole; and that knowing the consequences and having been advised of her rights by Court and counsel, she desired to plead guilty. Sentence was fixed for March 22nd; the sentencing judge’s name (then unknown) was to “come out of a drum.”

On March 25, 1974, defendant came before Judge Travia for sentence. The Court had made available to her counsel the presentence report and various relevant letters and had directed counsel to read and discuss them with her. Alleged inconsistencies were discussed such as the quantity of marijuana and cocaine found in defendant’s apartment.

The Court, mindful that defendant would be 26 years of age the next day,, was aware of “the possibility of the imposition of sentence pursuant to the Youth Corrections Act rather than the adult sentence which she faces in this case.”

Defendant’s counsel argued vigorously that his client had “a real first class background”; that she was a “college graduate”; that she had “a good work record, excellent family” but performed a stupid thing — a criminal act, and urged that defendant be given the benefit of the Youth Corrections Act and probation.

The Court, in sentencing, noted that (in conformity with the practice in the Eastern District of discussing cases in a presentencing panel and receiving the sentencing recommendations of the other judges on the panel) he had conferred with other judges as to their recommendations with respect to the sentence and also said in part: “I have read this pre-sentence report maybe five times already. I read every letter that was sent. to me by a number of people * * The Court “after doing a little soul-searching of [his] own, * * * ” and having considered all the facts before him concluded not to sentence under the Youth Corrections Act but under the adult provisions of the law. The Court used defendant’s education only to show that “she knew what she was doing” and that he could not find “that she would in any way benefit by this YCA.” The Court then sentenced defendant to four years under 18 U.S.C. § 4208(a)(2).

The Court, in turn, pointed to defendant’s education and background. — hence, her ability to understand the nature of her crime. Such knowledge was reinforced by her admissions at the time of the guilty plea and her statement before the sentencing judge himself: “I just want to say that I wasn’t pleading ignorance as somebody from the ghetto. But I had knowledge.” There is nothing in the record to indicate that the sentencing judge deemed “intelligence and privileged background” to be “pejorative factors disentitling her to treatment under the Youth Corrections Act.” The majority’s holding would imperil every sentence preceded by the trial judge’s comment, “You had a good education. You should have known better.” Or, since the majority “are constrained to disapprove of the manner in which this [the sentencing] was done,” does this mean that a sentencing judge cannot excoriate a narcotics vendor without fear of having his sentence invalidated ?

These comments “coupled with its [the sentencing judge’s] express refusal * * * [to] make a specific finding that appellant would not derive benefit from treatment under the Act” led the majority “to conclude that the court employed a fixed and mechanical approach in imposing sentence rather than a careful appraisal of the variable components relevant to the sentence upon an individual basis.”

Although not available at the time of sentencing or of the argument of this appeal, I had thought that the question of the sentencing judge’s discretion to apply the Youth Corrections Act had been put to rest by the Supreme Court (1974) in Dorszynski v. United States, -U.S.-, 94 S.Ct. 3042, 41 L.Ed.2d 855. The four concurring Justices differed only from the five as to the form of the “no benefit” statement, namely, whether a “merely conclusory statement” or a more explicit statement was required. As to the issue before us, i. e., the right of the sentencing judge to decide for or against sentencing under the Act, there was no disagreement. Writing for the four, Mr. Justice Marshall said: “But the Act clearly intended that the' ultimate sentencing decision remain with the trial judge.” For the five, the Chief Justice wrote: “The sole issue in this case is the validity of the sentence imposed by the District Court.” As to sentencing discretion, after a review of the legislative history of the Act, the Chief Justice said: “The intent of Congress was in accord with long-established authority in the United States vesting the sentencing function exclusively in the trial court.

“If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute.” Gurera v. United States, 40 F.2d 338, 340 (CA8 1930).

See Gore v. United States, supra; Townsend v. Burke, supra; Blockburger v. United States, supra. * * * * As our review has shown, the exclusive sentencing power of district judges was acknowledged, and Congress’ intention to affirm that power was clearly indicated.”

A judge is guilty of mechanical sentencing when he displays a “fixed sentencing policy based on the category of crime rather than on the individualized record of the defendant.” United States v. Baker, 487 F.2d 360, 361 (2d Cir. 1973). Such an attitude can be demonstrated in one of two ways. First, it can be proven out of the mouth of the' sentencing judge, i. e., he can state, at sentencing, that he “routinely” or “habitually” metes out a certain sentence for a given crime. For instance, in Woosley v. United States, 478 F.2d 139 (8th Cir. 1973), the sentencing judge, before imposing the maximum sentence on a defendant who pleaded guilty to a violation of the Selective Service Act, declared that it had been his practice for over thirty years to impose the maximum sentence in selective service eases. 478 F.2d at 144. Second, a mechanical attitude toward sentencing can be prima facie established by the sentencing court’s prior record in similar cases. In the Woosley case, supra, the Court of Appeals for the Eighth Circuit examined the district court records and found an unwarranted consistency in the sentencing judge’s past treatment of selective service offenders. Similarly, in United States v. Baker, supra, this court examined the records of the district court in an attempt to uncover a mechanical attitude toward sentencing on the part of the district judge. 487 F.2d at 361 n.l.

At no point in the sentencing process in this case did the Court declare that it was his custom or habit to sentence all drug offenders to four years’ incarceration with open parole and three years’ special probation. Likewise, the record discloses no survey of the district judge’s past sentences from which this court might deduce that he sentences drug offenders in a mechanical way.

The District Court determined that defendant should be sentenced as an adult because she had been well educated and had been given many advantages, and whose criminal act could not be mitigated by a claim of ignorance or by the effects of crushing poverty which might have numbed her moral judgment. In addition, although defendant had no previous police record, there is evidence in the presentence report that she had engaged in transactions involving hard drugs before and had participated in drug distribution. Thus, the approach of the District Court was anything but mechanical.

The facts here presented completely refute, in my opinion, the charge that the Court “employed a fixed and mechanical approach in imposing sentence.” To the contrary, they show careful consideration of the individual before him. Under the circumstances, although the sentence may appear to have been unduly harsh, such correction, as the Supreme Court has indicated, is not for the Court of Appeals.

In light of Dorszynski, supra, the fact that the sentencing judge carefully considered the pros and cons of sentencing under the Act and the time-honored discretion vested in the sentencing judge, I can reach no other conclusion than that the judgment should be affirmed. For these reasons, I must dissent.

      . This conclusion is supported by Judge Travia's comments at the time of sentence :
      “[Sllie’s not the ordinary so-called individual who . . . doesn’t know the nature of her act or that she comes from such terrible circumstances that the family— she became involved. This young lady was in a different sphere of influence entirely, brought up differently. She’s been to college. She’s graduated from college. So that she cannot argue from the point of view that she was so-called ignorant of what was going on or that she was befuddled or was drawn into a picture or didn’t know what was going on. Not the usual dumb kid who is dragged in.
      “So when you say she is young — sure, I wish I was young at 25 or 26. But not that young that we don’t know what we are doing at that stage .... It’s not like dealing with a youngster who comes out of the ghetto, who grows up to know nothing that is right except to commit one crime after another to satisfy whatever may be his problems at the time.
      “A youngster at this age and this caliber, of this type of background and education, pretty much cannot plead ignorance.
      “I am not dealing here with the usual type of individual who comes before us where they have all the — these personal problems and family problems and all that, things where they really might have an argument that they were unaware of all these ramifications of the law.
      “Here we don’t have — if I could use the word of a dumb kid who didn’t know what she or he were doing. We have a person who in my judgment is far above the average, so that she knew what she was doing. She certainly knew the nature of what she was doing in that she was fooling around with stuff that was, you know, a little bit of dynamite.”

      . 18 U.S.C. § 5006(e): “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction.”

      . 18 U.S.C. § 4209: “. . . a defendant who has attained his twenty-second birthday but lias not attained liis twenty-sixth birthday at the time of conviction. . . . ”

      . The judge on remand may wish to consider resentencing under the Youth Corrections Act since it appears that the term “conviction” in 18 U.S.C. § 4209, supra note 3, would mean the date of the plea of guilty in the context of this case and the appellant would therefore qualify for such consideration. United States v. Kleinzahler, 306 F.Supp. 311, 313-314 (E.D.N.Y.1969); cf. Standley v. United States, 318 F.2d 700, 701 (9th Cir. 1963).