author: GARTH, Circuit Judge.

text:
    UNITED STATES of America v. Michael NEWMAN and Frank X. Gaca. Appeal of Frank X. GACA.
    No. 73-1664.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 8, 1973.
    Decided Jan. 8, 1974.

      Allen N. Brunwasser, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., Kathleen Kelly Curtin, James J. Orr, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Judge.

I.

Frank X. Gaea and Michael E. Newman were indicted for wilfully intercepting, endeavoring to intercept and procuring another to intercept a wire or oral communication in violation of 18 U.S.C. § 2511(1) (a) and 18 U.S.C. § 2, and for disclosure of the contents of said communication in violation of 18 U.S.C. § 2511(1)(c). A third defendant, Thomas Nee, indicted for his participation in the illegal wiretap, pleaded guilty and testified for the government.

The government’s case against Gaca and Newman was severed, and Michael Newman proceeded to trial first. Newman’s conviction was recently affirmed by this Court in United States v. Newman, 476 F.2d 733 (3d Cir. 1973). After the trial court dismissed the disclosure count (18 U.S.C. § 2511(1) (c)) against Gaca, the jury found Gaea guilty on the first count (violation of 18 U.S.C. §§ 2 and 2511(1)(a)). Gaca was subsequently sentenced.

In his appeal Gaca has advanced a number of alleged errors which he claims require a reversal of his conviction. We find merit in several of his contentions, and accordingly we reverse.

H.

On appeal from a verdict of guilty, this Court must view the testimony, and the inferences drawn therefrom, in the light most favorable to the government. United States v. McLain, 469 F.2d 68, 69 (3d Cir. 1972). The testimony at trial indicated that Thomas Nee and Frank X. Gaca were partners in a general wiretap business. They owned wiretap equipment valued at approximately $800. The government demonstrated that Thomas Nee, acting pursuant to a conversation with Michael Newman, placed a recording device on the telephone wire of one Eugene O’Neill on March 3, 1970. That evening, Nee informed Gaca that their equipment had been put to use “for Mike Newman”. Nee gave Gaca the precise location of the recording device and received no objection from Gaca. On each of the following three days, Nee obtained tapes from the recording device and played them for Newman. Nee apparently kept Gaca informed of the progress of the O’Neill wiretaps through nightly telephone conversations.

On March 8, 1970, Nee and Gaca played the wiretap tapes in Newman’s presence. After leaving Newman, Gaca drove Nee back to the telephone pole to which the O’Neill tap had been affixed, and prepared the equipment for placement back on the pole. Nee put the recorder on the pole, in position for further wire interceptions. Later that evening, the device was discovered by passers-by, Nee having inadvertently left the device on “broadcast.”

III.

A. Instructions on Wilfulness

Count I of the indictment charges that Gaca violated 18 U.S.C. § 2511(1) (a) and 18 U.S.C. § 2 by wilfully procuring “another person” to intercept wire communications. Apparently conceding that the district court properly instructed the jury with regard to the element of wilfulness in 18 U.S.C. § 2511(1)(a), Gaca argues that the court erred in failing to charge the jury that aiding and abetting is actionable only if done wilfully. As appellant correctly notes, the aiding and abetting statute, 18 U.S.C. § 2, has been construed to require a specific intent to bring about a criminal act. See United States v. Barfield, 447 F.2d 85, 88 (5th Cir. 1971); United States v. Barber, 429 F.2d 1394, 1397 (3d Cir. 1970).

The trial judge’s instructions on the element of wilfulness are set forth in the Appendix to this opinion. It is apparent that while the court specifically directed the jury to consider wilfulness as an element of an offense under 18 U.S.C. § 2511(1) (a), no such instruction was offered with regard to the aiding and abetting statute. The government, admitting that specific intent is required under 18 U.S.C. § 2, contends that the instructions’ focus on “participation” satisfies the mens rea element. We do not agree.

Consistent with the court’s instructions, the jury might have convicted Gaca on the basis of a conclusion that the defendant participated in the activities charged without knowing of their criminal objective. Unknowing participation is not sufficient to constitute an offense under the aiding and abetting statute. Rather, the government must prove beyond a reasonable doubt that the defendant participated in a substantive crime with the desire that the crime be accomplished. See United States v. Barfield, supra, 447 F.2d at 88.

The failure of the district court to instruct that Gaea could be convicted of aiding and abetting only if the jury found wilful participation constitutes error.

B. Evidence of the Newman Conviction

Before Gaea’s trial began, the witness Thomas Nee was instructed not to mention the fact that Michael Newman, a co-defendant, had already been convicted on the wiretapping charge. Nevertheless, on cross-examination, Nee referred to the Newman conviction. Gaea’s counsel made no motion to strike but rather confined his objection to the suggestion that the court instruct the jury that it should disregard Newman’s conviction in determining Gaea’s guilt. On appeal, Gaea challenges the sufficiency of the instructions eventually given.

Unquestionably, Gaea has a right “to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.” United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949). Thus, guilty pleas and convictions of co-defendants are not admissible to demonstrate the guilt of defendants yet to be convicted. United States v. Restaino, 369 F.2d 544, 545 (3d Cir. 1966). However, unless undue emphasis is placed upon such evidence, the admission of such evidence is not reversible error, provided that cautionary instructions are given. United States v. Restaino, 369 F.2d at 545.

Appellant argues that the court did not render the cautionary instructions required by Restaino. The government responds by citing the following instruction, offered by the District Judge:

“Now, it is also very important, and I wish to emphasize this very earnestly, that your task here is confined to passing upon the guilt or innocence of this defendant for the charge with which he is here standing trial. In other words, there has crept into the case a lot of collateral matters about other legal proceedings against other defendants such as Nee and Newman as to desertion and non-support cases or similar family troubles of the witness and supposed other offenses of which the witness has supposedly been perhaps guilty or with respect to which he has claimed the protection of the Fifth Amendment, and all of these matters are side issues not to confuse you when you come to your actual main task here of passing upon the guilt or innocence of the defendant Frank Gaea concerning the offense with which he is here and now on trial. You are not to speculate about any other matters and any evidence that has come in about such matters is collateral material that was received as being perhaps helpful in some re-spéct in helping you to evaluate the weight to be given to the testimony that you have heard here concerning the pertinent question which is here for your decision.” (Tr. 574-575)

This charge, which the government would have us view as curative, is imprecise on the issue of the Newman conviction. The charge dealt neither with the specific language nor with the jury’s duty to disregard the testimony. The judge should have been more explicit in repudiating the testimony given. At the very least, the district court should have instructed that the testimony regarding Newman was no proof whatsoever of Gaea’s guilt and that the testimony preferred should be disregarded completely in determining the guilt or innocence of Gaea. See United States v. Aronson, 319 F.2d 48, 52 (2d Cir. 1963).

C. Nee’s Assertion of His Fifth Amendment Privilege

On cross-examination, witness Nee frequently asserted his Fifth Amendment privilege. The chart below outlines the context in which these assertions were made:

page question purpose of question
1) Tr. 195-197 Nee was questioned as to how he had tapped his ex-girlfriend's phone. to show that Gaea did not participate in all tappings performed by Nee.
2) Tr. 199 Nee was questioned as to whether he had committed any crimes other than those about which he testified on direct examination. to impeach Nee's credibility.
3) Tr. 255 Nee was questioned as to whether he had received any money from wiretaps in 1970. to impeach credibility.
4) Tr. 257, 258 Nee was questioned as to whether he had tapped the phones of: a) members of the underworld, and b) a man by the name of Lou Posick. to show that Gaea did not participate In all tappings performed by Nee.

On each of these instances, the trial court refused to compel Nee to answer defense counsel’s inquiries. Gaea contends herein that Nee’s utilization of the privilege against self-incrimination deprived him (Gaea) of his Sixth Amendment right to confront witnesses and his Fifth Amendment right to a fair trial.

The Sixth Amendment right of confrontation requires appellate courts to reverse convictions where it appears that the cross-examination of government witnesses has been unreasonably limited. See United States v. Zambrano, 421 F.2d 761 (3d Cir. 1970). However, courts have recognized that in certain circumstances, reversal is not required when a government witness asserts the Fifth Amendment during cross-examination. See, e. g., United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert, denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed. 2d 55 (1963); United States v. Kravitz, 281 F.2d 581, 588 (3d Cir. 1960); United States v. Smith, 342 F.2d 525, 527 (4th Cir.), cert, denied, 381 U.S. 913, 85 S.Ct. 1535, 14 L.Ed.2d 434 (1965); United States v. Ginn, 455 F.2d 980 (5th Cir. 1972); United States v. Collier, 362 F.2d 135 (7th Cir. 1966); Coil v. United States, 343 F.2d 573, 579-580 (8th Cir.), cert, denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.2d 67 (1965); United States v. Norman, 402 F.2d 73, 77 (9th Cir. 1968), cert, denied 397 U.S. 938, 90 S.Ct. 949, 25 L.Ed.2d 119 (1968).

In Cardillo, supra, the Second Circuit developed firm guidelines regarding the limited circumstances in which a witness’s Fifth Amendment assertion will be unassailable. The Court declared:

In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of a privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witnesses and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’s testimony may be used against him. ... On the other hand, if the witness by invoking the privilege precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness’s testimony should be stricken in whole or in part.

316 F.2d at 611. The distinction between collateral matters of credibility and matters directly related to the crime, drawn first in Cardillo, has been recognized by several circuits. See, e. g., United States v. Smith, supra (4th Cir.); Fountain v. United States, 384 F.2d 624, 627 (5th Cir. 1967) (explaining that the real question is whether “defendant’s inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’s direct testimony”); Coil v. United States, supra, (8th Cir.); United States v. Norman, supra, (9th Cir.).

The government argues that the questions which Nee refused to answer relate only to his credibility. To the extent that the questions do relate to credbiility, there would be no impropriety in allowing the assertion of the Fifth Amendment privilege. As Gaea admits in his brief, it was evident to the jury that Nee was, in general, an unsavory and untrustworthy character. Any further evidence impugning Nee’s credibility would only be cumulative, the defense having emphasized Nee’s lack of credibility throughout its cross-examination.

More troublesome is Nee’s refusal to discuss prior wiretaps. Defense counsel indicated at trial, and re-affirms on appeal, that one of his purposes in asking about prior taps was to demonstrate that Gaea did not participate in previous taps conducted by Nee. A central element of the government’s case was the alleged partnership arrangement between Nee and Gaea. It would have been plausible for the jury to infer from this arrangement the conclusion that if Nee participated in a tap, his partner (Gaea) too would have participated. Apparently, it was the purpose of defense counsel’s questions (regarding prior taps) to undermine this inference by demonstrating that Nee often acted independently.

In Cardillo, the Second Circuit indicated that where the subject matter of the answer is connected with only one phase of the government’s case, the proper response is to cause a partial striking of the witness’s direct testimony. Given the strength of the inference flowing from the testimony regarding the alleged partnership, Gaea should have been permitted to question Nee fully on the operation of the partnership. The witness’s refusal to permit questioning on this topic should have led to a striking of the testimony regarding the partnership. Failure to cause a partial striking constituted an unreasonable limitation of Gaea’s Sixth Amendment rights, and is, therefore, error.

D. Testimony Regarding Leniency to Nee.

1. Calling the prosecutor as a witness

Gaea urges that his Sixth Amendment rights were also violated when the court denied him the opportunity to call the U.S. Attorney as a witness. Although no offer of proof was made at trial, it is apparent that defense counsel hoped to elicit evidence of bargains with Nee, thereby . contradicting the witness’s denial of same and establishing a defense under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L. Ed.2d 104 (1972).

A similar request was made by Michael Newman in his trial. This Court (over the dissent of Judge Gibbons) upheld the same District Judge’s refusal to compel testimony by the U.S. Attorney, stating that:

“Although this court has consistently held that defense counsel has available the right to show that the testimony of a Government witness was given in reliance on a promise of a lighter sentence, or other preferential treatment. the district court has wide discretion with respect to the examination of witnesses. ... It may properly refuse to allow the defense to call the prosecutor if it does not believe that ‘he possesses information vital to the defense.’ Gajewski v. United States, 321 F.2d 261, 268-269 (8th Cir. 1963). . . .”

United States v. Newman, 476 F.2d at 733.

The above case is not only controlling on the standard to be applied, but is also determinative of the outcome with regard to this portion of Gaea’s appeal. Gaea asserts that statements brought to the attention of the trial judge in Newman indicate that the government may have bargained with Nee. Thesé' were the very statements considered by this Court in Newman. If this Court felt that it was reasonable for the district judge to disbelieve that the U.S. Attorney had vital information in Newman, the same conclusion must apply herein, inasmuch as we are reviewing the same precise statement.

Thus, this Court is bound by precedent to find that the mere refusal to compel testimony by the U.S. Attorney did not constitute error.

2. “Testimony” by the prosecutor

A statement made by the Assistant U.S. Attorney in his closing remarks, however, serves to distinguish this case from Newman. To support Nee’s testimony that he had served as a witness without “threats or promises or inducements”, the prosecutor stated to the jury:

“Our office has nothing to do with that. We could not and would not deal with Mr. Nee. He plead guilty.” (Tr. 563-564) (emphasis added)

The government concedes that the above represents “testimony”, but argues that its effect was not prejudicial because 1) the jury knew that sentencing was within the Judge’s prerogative and 2) cautionary instructions were given to the jury.

The government’s arguments are not persuasive. Had the Assistant U.S. Attorney believed that the jury actually understood the sentencing process, he would not have made the statement in the first place. It is more likely that the Assistant U.S. Attorney offered the comment in order to support the damaged credibility of the government’s prime witness, Thomas Nee. A juror listening to Nee may well have discredited his testimony on the assumption that Nee had received a deal in return for a guilty plea and service as a witness. The “testimony” by the prosecutor undermined this assumption, and thereby prejudiced the defendant. When a prosecutor misstates facts in his closing remarks or states facts outside of the record in such a way as to prejudice a defendant, a new trial is required. See United States v. Tucker, 267 F.2d 212 (3d Cir. 1959). Where the prejudice is substantial, cautionary instructions will not preclude reversal. See, e. g., Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962); United States v. Bugros, 304 F.2d 177 (2d Cir. 1962); cf. Government of the Virgin Islands v. Turner, 409 F.2d 102, 103-104 (3d Cir. 1969). If the cautionary instruction is not clear and direct enough to neutralize the prejudice to the defendant, a reversal is mandated. Cf. United States v. Left-wich, 461 F.2d 586, 590 (3d Cir. 1972).

Given the vast investigative resources of the United States Attorney’s office, there is a significant element of unfairness in permitting the government to introduce facts in closing argument. We have emphasized that:

A United States Attorney in a criminal case has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the United States and he must exercise that responsibility with the circumspection and dignity the occasion calls for.

United States v. LeFevre, 483 F.2d 477, 478 (3d Cir. 1973); United States v. Kravitz, 281 F.2d 581, 587 (3d Cir. 1960), cert, denied 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372 (1961). As discussed above, the trial court refused defense counsel’s request to compel testimony on the issue of leniency. This refusal precluded Gaea from testing the truth of Nee’s statement regarding the lack of bargains. Rather than submit its assertions on the issue of leniency to adversarial challenge, the government then insulated its factual assertions within its closing remarks, thereby prejudicing Gaea. We doubt that the general cautionary instruction to disregard “evidentiary” statements by counsel was sufficient to neutralize the prejudice evoked by the Assistant U.S. Attorney’s statement.

IV.

We find each of the errors listed above to be significant. However, this Court need not and does not reach the issue of whether any one of the errors, in and of itself, would be sufficient to require a new trial. We are satisfied that under the totality of the circumstances, 'Gaea has not been afforded a fundamentally fair trial. United States v. Evans, 398 F.2d 159, 166 (3d Cir. 1968). The judgment of conviction will therefore be reversed and the case remanded to the district court for a new trial.

APPENDIX

With regard to the element of wilfulness, the district judge charged as follows:

Now, let us get to the elements of the offense. Under the Federal system, nothing is a crime unless Congress has declared it to be a crime and so I will now read to you the Act enacted by the Congress of the United States with violating which this defendant has here been charged. Perhaps I ought also to state before going into that that mere knowledge that someone else has committed a crime would not be a ground for finding the defendant guilty. Mere part ownership of property which has been used by someone else in committing a crime would not be a ground upon which you could find the defendant guilty. For example, if someone owned an automobile and another person drove it out to a still in Fayette County and loaded it up with moonshine and brought it in and sold it here in Pittsburgh, that would not implicate the owner of the car. However, if you find that the defendant himself participated in any criminal offense, that would be different from mere knowledge of an offense committed by someone else or mere ownership of the instrumentalities by which the crime was committed so I direct your careful attention to the distinction between these and emphasize that in order to find the defendant guilty of the charge with which he is here on trial, you must be satisfied beyond a reasonable doubt that he himself did participate in the offense.

Now, as I say, I shall read to you the statute here involved which is 18 United States Code 2511(1) (a) which reads as follows:

‘Except as otherwise specifically provided in this chapter, any person who willfully intercepts, endeavors to intercept or procures any other person to intercept or endeavors to intercept any wire or oral communication is guilty of the offense . . . ’

which has been charged against this defendant and for which he is now on trial. In other words, the Government must satisfy you beyond a reasonable doubt that this defendant here on trial did ‘willfully intercept, endeavor to intercept or procure another person to intercept or endeavor to intercept a wire or oral communication.’

* -x- -X- * *

Now, I point out that one element of the offense is willfulness. That means that it was done intentionally, voluntarily, knowingly and with an evil purpose. This is what is called in the law a specific intent. There is a rule in criminal cases that any crime consists of a physical action or as Justice Holmes sometimes said ‘voluntary muscular contraction by somebody together with an intent.’ Well, in ordinary offenses, this does not cause much difficulty because there is also a rule that a person is presumed to have intended the natural consequences of his acts. In other words, if I put a gun at your heart and fire and you die, I cannot be heard to say that: ‘Well, I didn’t really mean to hurt the person.’ When you aim a gun and fire at the vital portion of somebody’s body, you are taken as intending the normal, natural consequences of the act so that is ordinary intent, but then there are some crimes which require a specific intent, for example, burglary which consists of breaking and entering into a dwelling house at night with the intent to commit a felony therein and a felony would be either to kill somebody, commit murder, or to steal something in the house, but the intent to murder or to steal would have to be specifically proved. That is what we call a specific intent as part of a crime as distinguished from the general intent which is an ingredient of all criminal offenses. So willfulness is in this wiretapping statute a part of and ingredient in the offense so that, for example, if a person were working as a telephone employee and tried to connect up a certain line in order to test, as part of legitimate business, whether it was working properly and happened to get the wrong connection or something and happened to hear somebody else’s conversation, that would negate the element of willfulness. To be willful, it has to be voluntary and intentional and intentionally done, and when I read here ‘except as otherwise specifically provided,’ that refers to the fact that provisions were made by Congress in this statute passed in 1968 to permit wiretapping by law enforcement officials under certain specific procedures and safeguards which we are not concerned with here, but in general, it requires an order by Court after request presented by the Department of Justice, and I understand there is some question now being litigated in some cases as to whether the Attorney General in person must initial the request or whether somebody else can be designated to make that request to the Court, but those are matters that are not involved in this case, and I mention it merely as a matter of interest which has nothing to do with the case here because there is no question here of any authorized legitimate wiretapping by a law enforcement authority so except as otherwise specifically provided in these law enforcement provisions that are of no concern in the case, any person who willfully intercepts, endeavors to intercept or procures any other person to intercept or endeav- or to intercept any wire or oral communication.

* * •>:- x- *

[T]he real question in this case and the thing that you will particularly wish to consider with care is what, if any, was the participation of this defendant Frank Gaea in whatever interception was made? If you find that the witness Nee did intercept the O’Neil telephone, that in itself would not connect up with this defendant Frank Gaea or establish his guilt of any crime because Nee could have been acting entirely on his own. For example, he might have just himself concluded without any communication with anyone else that it would advance his standing or favor with Mr. Newman who was a public official, a councilman, said to be a rising star in the political firmament of Mc-Keesport at that time. Perhaps Mr. Nee himself purely acting on his own did whatever he did without any assistance or help or participation on the part of the defendant Frank Gaea and if that were so, then Mr. Gaea should be acquitted or if the thing were done simply as a result of a discussion and an agreement between Councilman Newman and the witness Nee for the purpose of finding out what Mr. O’Neil had about free work, if that were the case and Gaea had nothing whatever to do with it, then, of course, you could not convict Gaea so that you must be convinced beyond a reasonable doubt not only that Nee or Nee in conjunction with discussions with someone else committed an offense, but you must be convinced beyond a reasonable doubt that this defendant participated in the offense.

Now, in that connection, your attention is drawn to the provisions of Title 18, Section 2 which is an old Act of Congress passed in 1948 reading as follows:

‘(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.
‘(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States is punishable as a principal.’

* * * * * *

[Ujnder (b), if you are satisfied beyond a reasonable doubt that the defendant Gaea did willfully cause an act to be done which if he had performed it directly himself or if it had been performed directly by another would have been an offense against the United States, he is punishable as a principal. Similarly, under Subsection (a), if you find that the defendant Frank Gaea aided, abetted, counseled, commanded or procured the commission of an offense against the United States, he would also be punishable as a principal even though he didn’t do it himself. He would be responsible if he aided, abetted, counseled, commanded, induced or procured its commission.

* * •» * -x *

Of course, as has been said, there would be nothing in itself unlawful in taking down equipment, but the question which you have to decide, assuming that you accept as accurate the testimony which is in the case with respect to this defendant’s participation, would be whether he aided and abetted the commission of the offense. In other words, did he give help or assistance to the commission of the offense by someone else as distinguished from mere knowledge of what the other person was doing, and as I say, to convict this defendant, you must find that he himself did to some extent participate in the offense by aiding or abetting or helping in its commission.

Tr. 576-587.

      . 18 U.S.C. § 2511 provides :
      Except as otherwise specifically provided in this chapter, any person who (a) willfully intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire or oral communication; [or] . . . (c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this section . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.

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

      . A timely objection was made to the charge. (Tr. 590)

      . At the time that Nee mentioned the conviction, defense counsel was questioning Nee about perjury charges brought by Newman against the witness. The colloquy between defense counsel and witness Thomas Nee was as follows:
      Q. Talking about embarrassment, aren’t you trying to get the FBI to go after Thomas Livingston on some kind of idea that he’s calling you up to change your testimony or something like that? How about that?
      A. A couple months ago at work I had an anonymous phone call. We might as well get into the background of this. At sometime after Mr. Newman was found guilty here in this courtroom of wire tapping, he brought charges against me for perjury for lying in the first Federal grand jury. He brought these charges against me in I believe what they call the State courts and these charges have been postponed and rescheduled and postponed and rescheduled and ironically I believe they were heard yesterday down at the courthouse. (Tr. 285-286)
      We find that the prejudicial testimony was introduced inadvertently. Defense counsel neither attempted to “inject” the prejudicial matter into the record nor manufacture reversible error. We therefore find the instant case to be distinguishable from the situation discussed in United States v. Panepinto, 430 F.2d 613, 616 (3d Cir. 1970).

      . We note that at some point after the challenged testimony was introduced, the district judge stated, in the presence of the jury, that:
      “And the issue was specifically brought by you, Mr. Brunwasser, into the case, I remember, by asking the witness to read a certain statement aloud by paragraph in question referring to the Newman case so the jury will be instructed at the proper time that we are not concerned here with the Newman trial or the trial of the witness for any of the perjuries or other matters that liave been mentioned in general. It’s always desirable to avoid any reference whatever to other cases than the one on trial for fear of confusion, but it seems sort of inevitable apparently as I feared that there would be made some reference to it and it has been and will not harm anyone I trust so let’s proceed with the next question.” (Tr. 339-340).
      This preliminary remark, even if regarded as an instruction, is as equivocal and non-curative as the charge given at the close of trial.

      . As to the first instance in which the Fifth Amendment privilege was asserted, the trial court acquiesced in Nee’s refusal to answer on the grounds that the question was legally irrelevant. (Tr. 197). Although we perceive relevance in the question asked, we do not suggest that this ruling constitutes reversible error.

      . Thus, the government produced testimony to establish that:
      a) Gaea suggested to Nee that they form a wiretapping business (Tr. 89) ;
      b) Gaea accompanied Nee when the latter purchased the wiretapping equipment (Tr. 92-93) ; and
      c) Gaea paid for at least half of the equipment purchased. (Tr. 94).

      . The government admits that the most likely way that the jury could have obtained this knowledge was by listening to colloquy between counsel and the court.

      . As part of his charge, the trial judge explained that statements by the attorneys do not constitute evidence (Tr. 856).

      . Since a new trial must be afforded Gaea, we do not reach and need not consider other asserted errors raised by Gaea on this appeal.


source: Caselaw Access Project

author: WEBSTER, Circuit Judge.

license: Public Domain

text:
    L. C. SEARS, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1476.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Jan. 14, 1974.
    Rehearing Denied Feb. 6, 1974.

      Richard W. Hobbs, Hot Springs, Ark., on brief, for appellant.
    Robert E. Johnson, U. S. Atty., Fort Smith, Ark., on brief, for appellee.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

L. C. Sears appeals his conviction of knowingly transporting, possessing and selling 50 gallons of distilled spirits in violation of 26 U.S.C. § 5205(a)(2). In this appeal he contends (1) that the trial court erroneously admitted evidence of other offenses not charged in the indictment; (2) that the trial court erroneously permitted testimony of sales of illicit liquor by other persons, and of other transactions in which he was not involved; (3) that the trial court erroneously denied a motion for mistrial after government counsel had made prejudicial remarks about Sears’ involvement in a whiskey ring; and (4) that the court erroneously failed to give an instruction limiting the jury’s consideration of prior convictions to questions of credibility. Upon a full review of the record below, we affirm the judgment of conviction.

On the evening of November 9, 1971, Paul Darby and James Alexander, agents of the Bureau of Alcohol, Tobacco and Firearms, contacted Sears and requested him to put them in touch with a man from whom Darby had purchased moonshine whiskey on November 6. Following Sears’ instruction the agents followed Sears’ car from the American Legion Club at Hot Springs, Arkansas, to another bar and waited for him. Sears took the keys to the agents’ truck and drove away. When he returned he told the agents to follow him to a roadside park. When they arrived Bill Abbott was there with 50 gallons of whiskey, which they moved into the government truck.

On December 1, 1971, the agents again met with Sears at the American Legion Club. Pretending to be operators of a private club outside Houston, they asked Sears to help them contact a man who had sold them whiskey on November 9. Darby testified that Sears declined to do so but said he would handle the transaction. Sears left in the government truck and later returned with 50 gallons of illicit whiskey, for which the agents paid him $310. Again on December 10, 1971, the agents met with Sears at the Broadway Lounge, Hot Springs, Arkansas, and asked to purchase 100 gallons of moonshine whiskey. Sears again took the agents’ truck and left. In approximately two to three hours Cecil Lee Abbott returned with the truck, which contained 100 gallons of illicit whiskey. Sears was arrested December 15 and charged with the December 1st offense.

Evidence of Other Crimes

In its case in chief the Government thus offered evidence, not only of transportation, possession and sale of illicit whiskey on December 1, as charged in the indictment, but also adduced evidence of Sears’ participation in similar activities both prior and subsequent to December 1. The record clearly reveals that defense counsel made timely objections to testimony with respect to other crimes and this issue is well preserved on appeal.

The general rule that evidence of prior criminal conduct is not admissible against a criminal defendant is subject to well-recognized exceptions. In Atwell v. Arkansas, 426 F.2d 912 (8th Cir. 1970), the court said:

The general rule is that evidence of past crimes is inadmissible and incompetent for the purpose of showing commission of the particular crime charged unless the prior conviction is an element of or is legally connected with the crime for which the accused is on trial. (Citations omitted)
But recognized exceptions to the rule are that such evidence “is usually competent and admissible to prove the accused’s identity, knowledge, intent and motive, to show a common criminal scheme or plan, and in negation of the likelihood that the crime was committed as a result of inadvertance, accident, or mistake.” 29 Am.Jur.2d, Evidence § 321 (1967).

426 F.2d at 914.

Sears contends that the offense charged in the indictment does not require as an element of the offense the specific intent to commit the act and that evidence of similar offenses was therefore not admissible. However, evidence of similar offenses is permissible to show knowledge, as well as a common criminal scheme or plan, in negation of the likelihood that the crime was committed as a result of inadvertence, accident or mistake. Atwell v. Arkansas, swpra. In each instance objected to, as on December 1, Sears was the contact man and in each instance Sears used the truck of the government agent to obtain the whiskey. The offenses were sufficiently proximate in time and clearly were admissible on the issue of knowledge and common scheme or plan, notwithstanding the absence of specific intent as an element of the offense.

Crimes by Others

Over objection, government witness Cecil Lee Abbott, one of the participants, was permitted to testify as to the location of the still from which all the whiskey had come and generally to testify with respect to other activities emanating from the still. He testified that Sears was one of the organizers of the still, which was located on the Allen farm, and that Sears supplied some of the lumber for building pigpens and most of the barrels. To the extent that appellant’s objection to this testimony was directed to Sears’ involvement, the trial court properly overruled the objections since they showed the source of the whiskey and Sears’ knowledge that it had been illegally distilled.

To the extent that appellant argues that evidence of activities by Cecil Lee Abbott and Bill Abbott represented evidence of criminal activity of others, we find this argument to be without merit. In each such circumstance Sears was closely involved as one of the participants, and the activities of the Abbotts were properly received as showing the source and means by which Sears committed the offense as charged and his knowledge thereof as shown by his participation with the Abbotts in a common plan or scheme on other closely related occasions.

Remarks of Counsel

During direct examination of agent Darby, the prosecutor inquired whether Darby had purchased “any whiskey out of this same operation other than these three?” The court asked the prosecutor what he meant by “same operation” to which the prosecutor replied: “Sir, I mean from the people involved in this, which is L. C. Sears, Lee Abbott, Bill Abbott, and out of this same still.” Whereupon the following colloquy took place :

THE COURT: Well, of course, Mr. Sears is the only one that is being tried right now.
MR. LAREY: Yes, Judge. We are attempting to show that he was the ring leader and the prime mover, but he also let other people peddle whisky for him, according to our investigation, and I wish to ask this—
THE COURT: Well, Mr. Larey, I don’t think you ought to be testifying yourself about it. You ask a question, if you care to, but you’re trying Mr. Sears, and you may show any connection he might have had with anyone else, if you like.

Defense counsel promptly moved for a mistrial, contending that the remarks of the prosecutor were outside the scope of the indictment and “anything else connected with Mr. Abbott or any dealings that Mr. Darby has had with Mr. Alexander, with Cecil or Bill Abbott, has no place in this trial.” The court did not grant the motion for mistrial but at that time instructed the jury that “[i]t is not evidence in the case, and you’ll disregard it.”

While it would have been better practice to have required that the colloquy quoted above take place at the bench, out of the hearing of the jury, the court promptly and correctly instructed the jury with respect to such statements and we perceive no prejudicial error here.

Evidence of Prior Convictions

The defendant offered the testimony of Bill Lee Abbott and took the stand himself to testify that his activities were in fact a mere accommodation to the Abbott brothers and that he had no knowledge of or interest in the illicit whiskey transactions. Prior to his taking the stand, defense counsel moved to exclude any evidence of prior convictions. The court denied the motion. Defense counsel again renewed his objections when Sears was asked whether in 1962 he was convicted of violating the Internal Revenue liquor laws. The court, in overruling the objection, said:

It’s a proper question for the purpose of credibility of the witness, and the jury will consider the question and the answer only for that purpose, goes to the credibility of the witness.

On further cross-examination the Government brought out that Sears had been convicted in 1962 of possessing liquor, a still, and unpaid tax whiskey, and that in 1961 he had been convicted of operating a still in violation of Internal Revenue laws. The court overruled a renewed objection and advised the jury that “[i]t’s a proper question for the purpose which the court said it could be admitted, and you will consider it only for that purpose.”

Appellant urges this court to limit the use of prior convictions for purposes of impeachment to offenses involving a crime of moral turpitude. Thus, he argues, a conviction for the sale of moonshine whiskey should not be used to impeach the credibility of a witness. This qualification has been recognized in our circuit with respect to misdemeanors only. Lawrence v. United States, 18 F.2d 407 (8th Cir. 1927). Nothing in the record suggests (nor does appellant contend) that Sears’ prior convictions were not felonies. While in our circuit the court has discretion to control the quantum of impeachment evidence, we have consistently held that prior felony convictions are admissible for impeachment purposes. United States v. Scarpellino, 431 F.2d 475 (8th Cir. 1970); Montgomery v. United States, 403 F.2d 605 (8th Cir. 1968), cert, denied, 396 U.S. 859, 90 S.Ct. 126, 24 L.Ed.2d 110 (1969); Whitfield v. United States, 376 F.2d 5 (8th Cir.), cert, denied, 389 U.S. 883, 88 S.Ct. 143, 19 L.Ed.2d 179 (1967). The Second Circuit has admonished the courts, in exercising this discretion, to consider four factors in making its determination: (1) nature of the conviction, (2) its bearing on veracity, (3) its age, and (4) propensity to influence the minds of the jurors improperly. United States v. Palumbo, 401 F.2d 270, 273 (2d Cir. 1968), cert, denied, 394 U.S. 947, 89 S. Ct. 1281, 22 L.Ed.2d 480 (1969). Applying these standards, we find no abuse of discretion by the district judge.

Affirmed.

      . November 9-10, 1971.

      . December 10, 1971.

      . The authority for these exceptions is legion: United States v. Olsen, 487 F.2d 77 (8th Cir. 1973) ; United States v. Cochran, 475 F.2d 1080 (8th Cir. 1973) ; United States v. Bessesen, 433 F.2d 861 (8th Cir. 1970), cert, denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed. 2d 545 (1971) ; Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969) ; Koolish v. United States, 340 F.2d 513 (8th Cir.), cert, denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed. 2d 724 (1965) ; Williams v. United States, 272 F.2d 40 (8th Cir. 1959) ; Wiley v. United States, 257 F.2d 900 (8th Cir. 1958) ; see also Parker v. United States, 400 F.2d 248 (9th Cir. 1968), cert, denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789 (1969) ; United States v. Deaton, 381 F.2d 114 (2d Cir. 1967) ; Herman v. United States, 220 F.2d 219 (4th Cir. 1955) ; United States v. Walker, 176 F.2d 564 (2d Cir.), cert, denied, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547 (1949).

      . Appellant relies on Anderson v. United States, 18 F.2d 404 (8th Cir. 1927), but that case held that exceptions to the general rule may be made where there is a close connection between the other offenses and the one charged. 18 F.2d at 405.

      . That the activities on December 10 were subsequent to the charged offense did not on that ground alone make it incompetent evi-denee. O’Reilly v. United States, 486 F.2d 208 (8th Cir. 1973) ; McConkey v. United States, 444 F.2d 788, 790 (8th Cir.), cert, denied, 404 U.S. 885, 92 S.Ct. 223, 30 L.Ed. 168 (1971).

      . Offers of proof frequently involve arguments in support of the admission of testimony which under no circumstances would be admissible in evidence. The urge to present these arguments in open court before the jury, unless tightly controlled by the trial judge, is apparently irresistible.

      . While the court did not give a limiting instruction at the- time of final charge, he did so at the time the testimony was offered. Moreover, appellant did not submit a written request for such instruction or otherwise comply with the requirements of Fed.R. Crim.P. 30. See United States v. DeLaMotte, 434 F.2d 289, 294 (2d Cir. 1970).


author: COLEMAN, Circuit Judge:

text:
    MARBURY-PATTILLO CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. BAYSIDE WAREHOUSE COMPANY, Defendant Third Party Plaintiff-Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Third Party Defendant-Fourth Party Plaintiff-Appellee, v. D. H. MARBURY, III, and A. F. Pattil-lo, et al., Fourth Party Defendants.
    No. 72-1863.
    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.

      Carl J. Schumacher, Jr., Earl S. Ei-chin, Jr., New Orleans, La., L. Vastine Stabler, Jr., Birmingham, Ala., for defendant-third party plaintiff-appellant.
    W. S. Pritchard, Jr., Birmingham, Ala., for Marbury-Pattillo.
    James E. Clark, Birmingham, Ala., for Aetna Cas. & Sur. Co.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   COLEMAN, Circuit Judge:

After a thirteen day jury trial, this warmly contested diversity litigation resulted in a judgment for $60,000 in favor of Marbury-Pattillo Construction Company, Inc., [Marbury] against Bay-side Warehouse Company, Inc., [Bay-side] as the balance due and unpaid for the construction of four steel 500,000 bushel capacity grain storage tanks on the Mississippi River at Reserve, Louisiana. Although strongly urged to the contrary, we detect no reversible error in the proceedings below. The judgment of the District Court will, in all respects, be affirmed.

The agreed price for the work was $1,185,000. It is undisputed that of this amount Bayside withheld the payment of $60,000. The basic issue was whether this action had legal justification. This necessitates, first, an outline of the facts, stated in the light most favorable to the jury verdict, Hanover Fire Insurance Company v. Sides, 5 Cir., 1963, 320 F.2d 437; Gulf Oil Corporation v. Griffith, 5 Cir., 1964, 330 F.2d 729.

Prior to the commencement of the construction in question, Marbury had completed work at the same location on a much larger concrete grain storage facility for the South Louisiana Port Commission. That facility had been leased to Bayside, as operator. In June, 1968, Bayside decided to construct additional grain storage tanks. No final designs, plans, or specifications were in existence but the desired tank capacities were known, which, in turn, indicated the needed diameter and depth of the tanks. The real problem was that they were to be constructed on the unstable soil immediately adjacent to the Mississippi River, something the parties knew plenty about from the recently completed construction of the concrete grain storage tank facilities. In any event, using a fully pile supported construction approach, bids were solicited by telephone from five firms. Marbury submitted a bid of $1,800,000. This was rejected as too costly.

In the meantime, Bayside had obtained two subsoil investigation reports, one from Gore Engineering Company (June 14, 1968) and the other from Eus-tis Engineering Company (July 25, 1968). These reports indicated that borings encountered ground water only four feet from the surface. Both reports clearly stated that in the absence of full piling support there would be settlement in the storage tank floors — the only, question being how much and how soon it would occur.

Armed with this report, Bayside determined to proceed with construction of a type which would only be partially pile supported. The Gore and Eustis reports were passed on to Marbury and that organization was asked to reduce its former bid price by furnishing design drawings for a facility of the desired type.

On August 6,1968, Marbury submitted to Bayside a letter proposal, accompanied by specifications and outline drawings, for the design and construction of a facility which would have piling only under the tunnels and beneath the concrete ring girders of the storage tanks, at a cost of $1,185,000. On August 9 Bayside accepted the proposal by letter. This letter began with the statement, “This will authorize you to proceed with the work covered by your proposal dated August 6, 1968, for the design and construction of four (4) 500,000 bushel capacity steel grain storage tanks with related equipment as stated therein. . A formal contract and confirmation of the work will be executed at the earliest possible date.” Work began immediately.

Some two or three months elapsed before Bayside’s attorneys drafted the “formal” contract mentioned in the letter of acceptance. It was backdated to August 9, Bayside signed it in Memphis, and Marbury signed it in Birmingham. By that time, the piling under the tunnels and ring girders had been driven, the excavation done, and 65% of the concrete work completed.

On December 21, 1970, after this litigation was begun, but nearly two years before the trial thereof, Bayside sold the Marbury-constructed facilities to the South Louisiana Port Commission for $1,940,400. The sale to the Port Commission was based on a professional appraisal which, taking the tank floors into consideration, had fixed the value of the facilities at $2,135,140 as of the time the last of the four tanks were completed.

As the soil tests predicted, there was settlement in that portion of the steel tank bottoms rested on soil not supported by piling. This caused Bayside to withhold payment of $60,000 of the contract price. Marbury brought suit for the money and gained the jury verdict. Bayside brings the appeal.

The amended complaint, seeking recovery of $60,000,000, was met with a motion for change of venue from the Northern District of Alabama to the Eastern District of Louisiana, New Orleans Division, pursuant to 28 U.S.C. § 1404(a). When this motion was overruled, Bayside answered and counterclaimed for the sum of $160,500 liquidated damages for failure to complete the tanks by the stipulated contract dates, plus $71,445.90 as the alleged cost of placing the tanks and related facilities in satisfactory condition in accordance with the contract specifications. Bayside also filed a third-party complaint against Aetna Casualty and Surety Company, the surety on Marbury’s construction contract. Both claims were to be credited with the $60,000 withheld from Marbury. Marbury answered the counterclaim and Aetna answered the third-party complaint. On June 23, 1971, there was a pretrial hearing, at which the issues were identified.

After this pretrial hearing, and although Bayside had already sold the tanks for a sum 60% in excess of the original contract price, it filed, on July 8, 1971, an amended counterclaim and third-party complaint, demanding recovery in the sum of $1,235,000 as the cost necessary to “place the said tanks and related facilities in satisfactory condition in accordance with Marbury-Pattillo contractual undertaking”. Therefore, the demand against the contractor and its surety was increased to $1,342,208.-19, plus interest and cost, subject to credit in the amount of $60,000.

Aetna then filed a fourth-party complaint against D. H. Marbury and others for indemnity under its surety agreement.

In this rather complicated posture the case went to trial before a jury, producing a transcript of 2,447 pages and the result already indicated.

It may be said, with little pause, that the jury verdict finds ample support in the evidence. The only thing for us to determine is whether the verdict was infected by reversible error in the conduct of the trial. ■ We proceed to an evaluation of Bayside’s assignments of error.

First, it is argued that the District Court erred in the denial of the motion for a change of venue. To prevail on this argument, Bayside must show that the action of the District Court amounted to an abuse of discretion, Nowell v. Dick, 5 Cir., 1969, 413 F.2d 1204; Garner v. Wolfinberger, 5 Cir., 1970, 433 F.2d 117.

The motion was supported by one affidavit which identified nine witnesses, including experts, Louisiana residents, as having material knowledge concerning the design and construction of the tanks which were the subject of the contract in controversy. Marbury’s counter-affidavit set out the substance of the testimony expected of seven identified individuals within reach of subpoenas issued in the district where the suit was filed. The motion and the response raised only an issue as to whether nine witnesses should travel from New Orleans to Birmingham or seven witnesses should travel the route in reverse. This fails of a substantial question as to an abuse of judicial discretion in the denial of the motion.

Bayside relies, however, on Koehring Company v. Hyde Construction Company, 5 Cir., 1964, 324 F.2d 295, reversing the denial of a change of venue in a suit by a Mississippi company against a Wisconsin corporation concerning the allegedly defective construction of a concrete plant and cooling facilities on the Arkansas River in the State of Oklahoma. We do not consider Koehring apposite, however, for the reason that one of the chief factors there was the distinctly possible necessity of an on-site inspection of the construction. In its motion, however, Bayside was content to say only that “it may be invaluable for the jury to make a physical inspection”, not that it would, in fact, be necessary to the ends of justice, with the supporting reasons assigned. After all, Marbury admitted that the soil had receded and the unsupported tank floors had sunk, contending, however, that the condition had all along been within the contemplation of the parties. It was hardly likely that the jury would need to look at - a condition, the existence of which was admitted.

In Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, the Supreme Court elucidated upon the factors justifying a Section 1404(a) change of venue, but it was careful to point out that “Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum shall rarely be disturbed”, 330 U.S. at 508. Our analysis of Bayside’s motion is that it hardly balanced at all, much less raised “a strong balance” in its behalf. Consequently, we hold that the denial of the requested transfer of the litigation from Birmingham to New Orleans is not to be disturbed.

The appellant, Bayside, next complains of the admission of certain testimony which it says should have been excluded in compliance with the parol evidence rule generally applicable to contracts made in writing.

We consider this contention against the following background. First, there was a letter contract as of August 8, 1969. Work began the next day. It was nearly three months before the “formal” contract was signed. In the meantime, as already recited at the beginning of this opinion, the specified piling had been driven and the concrete work 75% completed. These were the items most essentially connected to hopes of avoiding floor settling. They were the essential elements of the “fall back”, ring girder construction to which Bayside had resorted in order to reduce the cost that would have been involved in a totally pile supported facility.

In any event, the “formal” contract contained the usual “parol evidence” stipulation:

“The contract is the entire agreement between Owner and Contractor and there are no other representations or warranties. This contract may be amended or modified only in writing and any such written amendments shall be executed and signed by duly authorized representatives of both Owner and Contractor.”
* * * * -x- *
“The Contract embodies the entire agreement between the parties. There are no terms, conditions, obligations or promises relating to the subject matter, other than those contained in the Contract Documents.” Bayside argues that under the parol

evidence rule these contract provisions should be “given conclusive effect”; that the November instrument “constituted the best and only admissible evidence of the agreement between Bayside and Marbury-Pattillo related to the construction of the grain facilities which are the subject of this litigation”.

The origin, history, function, and purpose of the parol evidence rule add up to a well-defined area of jurisprudence. We do not consider it necessary to indulge ourselves at this point in an interesting re-examination of the field. We are content to say that in the present posture of this case we cannot agree with Bayside’s position.

We begin with the proposition that both the letter contract and the “formal” contract required Bayside to pay the $60,000 here in issue unless Bayside could legally justify a refusal to do so. Bayside attempted to establish that justification by taking the position that the “formal” contract placed responsibility for both the design and the construction of the facility on Marbury, that the facility thus designed and constructed had to satisfactorily perform the functions for which it was built, and that because of Marbury’s defective design Bayside had failed to receive that which it had agreed to pay for.

Marbury resisted this attack with the argument that regardless of the formal recitations of the contract, Bayside from the outset had limited the project design to one within the concept of pile supported ring beams and cross tunnels, with unsupported floor quadrants resting on the soil, all as a deliberate substitution for a more certain but more costly approach.

Unless the parol evidence rule demands its exclusion, Marbury’s proof in this regard is well nigh undisputed, including the undenied proof that Bay-side’s manager all along stated that he “could live with” as much as nine inches of settlement in the unsupported floor quadrants. Undoubtedly, Bayside deliberately retreated to the ring and tunnel approach solely as a matter of reducing costs. It asked for bids, using that approach. It had the line drawings in its possession when it accepted Marbury’s bid. It directed that work begin forthwith. It allowed much of the critical aspects of the work to be completed before its lawyers completed the drafting of the “formal” contract, and then had that instrument backdated to the next day following the letter acceptance.

A wooden, purely mechanical, application of the parol evidence rule to this factual situation could convert the rule into a shield for fraud, an intolerable result, Hinds v. Plantation Pipe Line Company, 5 Cir., 1972, 455 F.2d 902; Restatement, Contracts, § 238(b) (1932).

We need not ground our decision on this factor, however, for we feel that this was exactly the kind of parol evidence situation in which a jury ought to be told, as it was here, that it must look first to the actual wording of the contract, but was also permitted to consider the facts and surrounding circumstances, not to vary the terms but in order more certainly to determine the intention of the parties as reflected by the words used.

In this regard, see, inter alia Hunter-Benn & Company v. Bassett Lumber Company, 224 Ala. 215, 139 So. 348 (1932); Frasch v. City of Prichard, 224 Ala. 410, 140 So. 394 (1932); Conway v. Andrews, 286 Ala. 28, 236 So.2d 687 (1970); Admiral Paint Company v. Goltzman (La.App., 1971), 254 So.2d 104, writ refused, 260 La. 289, 255 So.2d 772; Plantation Pipe Line Company v. Kaiser Aluminum & Chemical (La.App., 1969), 222 So.2d 905; Provident Life and Accident Insurance Company v. Pressley (1953), 37 Ala.App. 153, 64 So.2d 618; Wilkins v. Reliance Equipment Company, 259 Ala. 348, 67 So.2d 16 (1953); Cole v. Yearwood, 241 Ala. 437, 3 So.2d 1 (1941); Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 73, 125 A.L.R. 1075 (1939); Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966); Obermark v. Clark, 216 Ala. 564, 114 So. 135; Southern Metal Treating Company v. Goodner, 271 Ala. 510, 125 So.2d 268.

The next assignment of error insists that the District Judge should have declared a mistrial instead of continuing with a jury of eleven after one of the twelve had engaged in a courthouse conversation with a corporate officer of Marbury-Pattillo. After about four days of evidence Mr. Pattillo encountered one of the jurors in a corridor near the courtroom, upon which both men talked in a friendly fashion about numerous subjects, finally getting around to some which were relevant to the trial. The conversation was decidedly enough to require that the juror not be permitted to continue, United States v. Harry Barfield Company, Inc., 5 Cir., 1966, 359 F.2d 120. After a full hearing he was relieved of further duty. Bayside insisted below and insists here that rather than completing the trial with eleven jurors the Court should have declared a mistrial. The basis for this argument is that under the circumstances Bayside had not stipulated to a jury of less than twelve.

When the trial began on April 11, 1972, the following took place.

“THE COURT: Are the parties agreeable to continuing the trial with less than 12 jurors in the event one is absent or disabled, or will it be necessary to select alternates ?

“MR. STABLER: When you say continue it with less, do you mean with one less?

“THE COURT: Down to ten, I would think, as a practical matter.

“MR. STABLER: That is agreeable with me.

“MR. PRITCHARD: I have no objection.

“MR. CLARK: I don’t object.”

Appellant now says that the words, “absent or disabled” in the foregoing stipulation should not be read to encompass a situation which arose as result of the voluntary actions of an officer of a party to the litigation, that the stipulation was not intended to include an “absence or disability” so caused. Quoting further from appellant’s brief: “Because Mr. Pattillo initiated conversations with jurors which interfered with the trial process by altering the jury as selected, a mistrial was the only proper safeguard of the integrity of the jury system”.

We are of the opinion that this argument ought not to prevail. The word “disabled” in the stipulation was not qualified by the word “physically” or any other limiting term. The fair and reasonable meaning of the stipulation was that if, for any reason, a juror was unable to complete the trial the parties would proceed, at least as long as the number of jurors did not fall below ten.

Of course, under existing rules, the trial very likely would have begun with only six jurors. The unanimous verdict in this case was returned by eleven.

The other assignments of error on behalf of Bayside have been duly considered and found not to justify reversal. We do not reach, nor do we decide, anything with reference to the surety on the performance bond. The verdict for the principal exonerated the surety and nothing further need be considered.

The judgment of the District Court is in all respects

Affirmed.

      . 28 U.S.C. § 1404(a).
      For the convenience of parties and witnesses, in the interst of justice, a district court may transfer any civil action to any other district or division where it might have been brought.


author: JOHN R. BROWN, Chief Judge: GEE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Angel Luis OQUENDO, Defendant-Appellant.
    No. 73-1941.
    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.

      Frank Herrera, Jr., San Antonio, Tex. (court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., John Pinckney, III, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Appellant was convicted on three separate counts of distribution of heroin in violation of 21 U.S.C.A. § 841(a). Since we find that a Blue-type charge was given to the jury, we must reverse.

At trial, Agent Losoya, a San Antonio Police Officer (Agent) working as an undercover agent for the federal Drug Abuse Law Enforcement Agency testified that on August 29, 1972 he drove to the China Royal Cafe in San Antonio, Texas with an informer. When they parked in front of the cafe, Appellant approached the car and asked them if they were trying to “score”. The Agent replied in the affirmative. A sale of two grams of heroin was arranged and Appellant returned shortly with the heroin which he transferred to the officer.

The Agent further testified- that on the following day, he and the informer drove to the Carosel Lounge. The informer entered the lounge and returned accompanied by Appellant. The Agent informed Appellant that he was again interested in purchasing heroin. The Agent and Appellant went into the Caro-sel where they met Jose Torres. The Agent stated that he needed five grams of heroin. Torres said that he could provide only two. The three went into the restroom. Torres gave the Agent the heroin and instructed him to pay Appellant. The Agent and Appellant then left the Carosel. Appellant left the Agent for a short period of time and returned with the other three grams of heroin which he transferred to the Agent.

Appellant took the stand and admitted that the transactions occurred essentially as the Agent had testified. However, he alleged that on the morning of August 29, the informer who had later introduced him to the Agent approached Appellant and asked him if he would be willing to sell drugs for him. Appellant, who claims to have been a heroin addict at the time, agreed. The informer then gave Appellant 15 grams of heroin, instructed him to sell it at $40.00 per gram, and told him not to tell anyone that the heroin belonged to the informer. Appellant testified that he later gave his friend Torres two grams of heroin to sell for him.

Appellant asserted that prior to his encounter with the informer on the morning of August 29, he had no heroin and that all of the heroin sold to the Agent in the three transactions had been obtained from the informer.

The prosecution then produced the informer who testified that he had been casually acquainted with Appellant prior to introducing him to the Agent but emphatically denied having ever given him any heroin and denied having even seen him on the morning of the 29th or within a five to six day period prior to that date.

Appellant essentially admitted all of the elements of the crime charged resting his defense on our holding in United States v. Bueno, 5 Cir., 1971, 447 F.2d 903, that entrapment is established as a matter of Taw where a defendant is charged with possessing contraband or distributing it to a government agent if the contraband in question was supplied to the defendant by a government agent including a paid informer. We held in Bueno that when a defendant testifies that he obtained the contraband from an informer, the government must produce the informer to contradict the defendant’s allegations in order to take the case to the jury. If the informer so testifies, then the jury must find beyond a reasonable doubt that the defendant did not obtain the contraband in question from the informer.

At the outset, we must determine whether Bueno is still viable in light of United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. We conclude that it is.

In Russell the Supreme Court held that the fact that a government agent who had infiltrated a drug manufacturing ring had provided the defendants with an essential ingredient for manufacturing methamphetamine did not constitute entrapment as a matter of law where the defendants were charged with unlawfully manufacturing, selling and delivering methamphetamine. Rather, the question of entrapment was for the jury under the Sherman -Sorrells test. The Court emphasized that the ingredient provided by the government was “by itself a harmless substance”, difficult but by no means impossible to obtain and the possession of which was legal. 411 U.S. at 431-432, 93 S.Ct. 1642-1643, 36 L.Ed.2d at 373.

While observing that the Court of Appeals for the Ninth Circuit had relied on Bueno in finding entrapment as a matter of law, the Supreme Court implicitly acknowledged that the facts in Russell did not fall within the Bueno rationale. 411 U.S. at 431, 93 S.Ct. at 1642, 36 L. Ed.2d at 373. Unlike Russell where the government provided a legal, harmless, obtainable substance, the government informer in Bueno provided the defendant with heroin — the contraband itself the possession or distribution of which constitutes the very substance of the crime. This clearly and meaningfully distinguishes Bueno from Russell.

We pointed out in Bueno that:

“The story takes on the element of the government buying heroin from itself, through an intermediary, the defendant, and then charging him with the crime. This greatly exceeds the bounds of reason stated by this court in Williamson v. United States, 311 F.2d 441 (5th Cir. 1962).
* •* * * *
The facts of this case clearly fit within the framework of the law in this field. If Defendant is to be believed, the sales of heroin were made through the creative activity of the government. The Defendant would not have had the heroin to sell if it had not been purchased by the Informer. In fact, this particular heroin would apparently not have been in the United States at all, if it had not been smuggled in by the Informer.”

447 F.2d at 905-906 (emphasis added).

We recognize that in Russell the Supreme Court emphasized that entrapment is a limited defense' as well as affirming the continuing vitality of the predisposition/inducement test of Sherman and Sorrells. But despite the fact that the defendant’s predisposition to commit the crime is not a significant factor under Bueno, we do not feel that Bueno is inconsistent with Russel

We wish to emphasize that the question of whether the Bueno defense has been established is for the jury as long as the government has come forward with sufficient evidence contravening the defendant’s allegations.

Since Appellant testified that he had obtained the heroin from the government informer and the informer flatly denied these allegations, this case was properly within the Bueno rationale. Its application depended on the jury resolution of which was true, the story of the appellant or the story of the informer.

The Court charged the jury on the presumption of innocence, the government’s burden of proof beyond a reasonable doubt, and the fact that the jury is not bound by the Court’s comments on the evidence. The Court also propounded an instruction on the standard Sherman-Sorrells entrapment defense.

Then in the process of instructing the jury on the proper resolution of conflicting testimony, the Court noted:

“It is just a question of who you believe. And the Defendant has charged me in effect, and the Government as well asked me to charge you in effect, that if you believe the story of the Defendant here, Oquendo, you should acquit him. If you don’t believe him, and believe the story of Grundy, that he merely was a conduit through which the officer made the acquaintance, that this man was a known pusher and so forth. Whatever he said you will remember, I won’t. Then there is no doubt that the man ought to be convicted. (Emphasis added).

The Court then attempted to instruct the jury on the Bueno defense.

“But I am charging you for the purposes of this case, and I am telling you that you must take the law as it is a legal defense in this particular case. It sure would be dirty pool to have an informer hand a man some Heroin, tell him to sell it for me, and then go back and get it and so forth, and then turn him over to the Government. And I don’t think anyone should be convicted on that sort of evidence.
But if on the other hand you feel that it is a contrived defense, and it doesn’t meet the possibilities or probabilities of the situation, and you feel that Grundy and the officer were telling the truth, then you shouldn’t have the slightest hesitation to find the Defendant guilty.
I have given you that instruction of law, if you find it happened as Oquen-do said, not guilty. If you find it as the officer said, guilty.” (Emphasis added).

After having retired to deliberate, the jury requested a written instruction on entrapment. The Court again charged the jury on the standard entrapment defense and then referred to the Bueno defense in the following terms:

“I told you members of the jury that in my opinion, and I think that it must rest in yours too, but you are the judge of the facts, the gist of the situation here is did Grundy plant this narcotics on this man and then go to the Government and say ‘I know this man has it’, and they bought back the same narcotics. If he did, you ought to acquit him.
If he didn’t, and this is the story made up out of the whole thought by a clever defendant, consistent with the Government’s other story, then he is not entitled to it, and you should just as quickly convict him.
It is as simple as that, members of the jury, it is a yes or no answer. Do you believe the defendant, who has everything at stake, or do you believe the informer, who has no charges pending.” (Emphasis added).

The District Court committed reversible error by repeatedly casting the jury’s ultimate determination of whether to convict or acquit in terms of a mere credibility choice between the informer and appellant.

We sympathize with the District Court since we realize that, as we phrased it above, the jury’s decision in this case would probably depend upon whether it chose to credit the testimony of appellant and discredit the conflicting testimony of the informer or vice versa. Nevertheless, as we have many times held in the use of the Blue charge, there is too great a risk to fundamental values to warrant using this simplistic method.

Over the past four years we have consistently reversed whenever the trial court has given a Blue charge to the jury. United States v. Williams, 5 Cir., 1973, 473 F.2d 507; United States v. White, 5 Cir., 1972, 459 F.2d 990; United States v. Wood, 5 Cir., 1972, 458 F.2d 1351; United States v. Lowry, 5 Cir., 1972, 456 F.2d 341; United States v. Womack, 5 Cir., 1972, 454 F.2d 1337; United States v. Dillon, 5 Cir., 1971, 446 F.2d 598; United States v. Dopf, 5 Cir., 1970, 434 F.2d 205; United States v. Garza, 5 Cir., 1970, 426 F.2d 949.

We summed it all up in United States v. Williams, supra:

“While we agree with the government that the charge given here, like the charge actually given in the Blue case, is perhaps not as egregious as those given in the previously cited cases, that point of agreement is not the determining factor in this appeal. In Womack this court held that because the Blue charge, standing alone, could be interpreted by a jury as a directed verdict of guilty and because of its consequent potential for prejudice, it was necessary to proscribe any further use of the charge. This decision was an implicit recognition of the futility of a semantic comparison between the Blue charge and subsequent Blue-type charges as a means of determining whether a particular charge was prejudicial error. The underlying rationale of the decision in Womack, as well as in Garza, Dopf, Dillon and Lowry, is that when a court’s charge could reasonably be construed as — or has the practical effect of — directing a verdict of guilty, the charge exceeds the bounds of fair and impartial comment and is, therefore, error.” (Emphasis added).

473 F.2d at 511-512.

This is consistent with the policy to which we are deeply committed that in a criminal case:

“[N]o fact, not even an undisputed fact, may be determined by the Judge. The plea of not guilty puts all in issue, even the most patent truths. In our federal system, the Trial Court may never instruct a verdict either in whole or in part.”

Roe v. United States, 5 Cir., 1961, 287 F.2d 435, 440. Thus in spite of Appellant’s admission that he willingly distributed the heroin, the District Court infringed on the jury’s exclusive domain as the finder of fact by instructing them that if they believed the informer and disbelieved the Appellant on the issue of entrapment they must convict.

The charge given in this case is substantially similar to and carries all of the potential for prejudice of the discredited Blue charge. Thus once again, we must reverse.

Reversed.

GEE, Circuit Judge

(specially concurring) :

I agree that the judgment must be reversed because a Blue charge was given, one which invited the jury to treat the matter of proof as a fair fight between the United States and Oquendo rather than as one weighted in his favor by the reasonable doubt rule. This is so even if Oquendo’s only real defense, the Bueno doctrine, was disapproved by the Supreme Court in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L. Ed.2d 366 (1973). His not guilty plea placed all in issue, and the Blue charge given may well have infected the entire spectrum of the jury’s deliberations.

Regretfully, I cannot agree that Bueno remains good law. As the majority makes plain, Bueno focuses exclusively on an aspect of governmental activity — furnishing the defendant narcotics to sell — and applies even where the Sherman-Sorrells type of entrapment— which turns exclusively on defendant’s predisposition to the crime — does not exist.

In Russell, after pointing out that the Court of Appeals had expanded the traditional notion of entrapment which “focuses on the predisposition of the defendant” to require dismissal by focusing upon governmental activity and the degree of it, after citing Bueno as well as some other circuit and district court cases, and after pointing out (on the same page) that in Sorrells the thrust of the entrapment defense as recognized by the Court was toward the predisposition of the defendant while the minority focused on activity of the government, the Court observes:

We are content to leave the matter where it was left by the Court in Sherman. . . . Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court’s opinion in Sorrells and Sherman in order to bar prosecutions because of what they thought to be for want of a better term “overzealous law enforcement.” But the defense of entrapment enunciated in those opinions [context indicates Supreme Court’s opinions in Sherman and Sorrells] was not intended to give the federal judiciary a “chancellor’s foot” veto over law enforcement practices of which it did not approve. ... It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play, (emphasis added)
411 U.S., at 434, 93 S.Ct. at 1644, 36 L.Ed.2d, at 375.

It seems plain to me that in its Russell opinion the Court is saying that there have been two views about entrapment since its inception, a majority view which focused solely on the predisposition of the defendant and a minority view which focused either solely or in addition on the activity of the governmental agents, and that the Court deliberately rejects the second view and hews to the first. For whatever it may be worth, I am not here disagreeing with Bueno and its siblings at all. I simply think the Supreme Court does and has said so.

      . Torres is currently a fugitive from justice.

      . It is immaterial whether the purchasing agent or any other government agent knew that the informer had supplied the defendant with the contraband. As we observed in Bueno:

      “There is no evidence from which to infer that the purchasing Agent knew of this activity of the Informer, who was employed only on a temporary basis. However, we believe that the facts must be viewed in their entirety for the purpose of considering their effect on this prosecution. Both the Agent and the Informer must be treated as acting in concert, each with full knowledge of the actions of the other. Sherman v. United States, 356 U.S. 369, 373-375, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).”
      447 F.2d at 905.

      . Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848.

      . Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.

      . “This new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which have found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. United States v. Bueno, 447 F.2d 903 (CA5 1971) ; United States v. Chisum, 312 F.Supp. 1307 (CD Cal.1970.”
      411 U.S. at 427-428, 93 S.Ct. 1640-1641, 36 L.Ed.2d 371.

      . In United States v. Workopich, 5 Cir., 1973, 479 F.2d 1142 we observed that the facts of Bueno were distinguishable from the facts before the Court as well as from Russell.

      “But, unlike Bueno where the government supplied contraband, the government here supplied a commodity legal in itself, United States currency. Furthermore, whereas in Bueno the defendant was merely the conduit between two government employees, here the defendant actually arranged the purchase from one illegally dealing in heroin.
      Subsequent to the briefs and argument in this case, the Supreme Court issued its opinion in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, 1973. There a government agent approached the defendant and offered to supply him with a chemical essential to the illegal manufacture of amphetamines. This ingredient was legal in itself to possess, in contrast to the contraband supplied in Bueno."

      479 F.2d at 1144.

      . Following Russell, the Supreme Court vacated the Seventh Circuit’s decision in United States v. McGrath, 7 Cir., 1972, 468 F.2d 1027, vacated and remanded, 412 U.S. 936, 93 S.Ct. 2769, 37 L.Ed.2d 395 for further consideration in the light of Russell. In McGrath the Seventh Circuit had reversed a conviction for possession of counterfeit currency and conspiracy to produce and pass counterfeit obligations where the Government had taken charge of and supervised a counterfeiting operation after the defendant had initially purchased counterfeiting materials and had attempted to locate a willing printer.
      The Seventh Circuit relied, at least partially, on the rationale that it was “repugnant to the most elemental notions of justice to permit law enforcement personnel to manufacture counterfeit bills, deliver0them and then arrest the recipient for possession of contraband.” 468 F.2d at 1030.
      In explicit reliance on the concurring opinions in Sorrells and Sherman the Court pur-
      ported to exercise its supervisory power to bar a prosecution due to an excessive degree of police participation in the criminal activity.
      Since we can only speculate on the signifiance of the Court’s cryptic order in McGrath, our determination as to the continuing viability of Bueno must ultimately rest on a careful consideration of Russell. As we have pointed out above, the holding of Russell does not, in our view, undercut the vitality of Bueno.

      . We point out that where the facts may require submission of a charge on the standard entrapment defense as well as a Bueno instruction, the Court should be careful to indicate that these are separate concepts in order to avoid misleading the jury into believing that the Bueno defense is unavailable where the jury finds that the defendant manifested a sufficient predisposition to commit the crime even though this would prove fatal to the standard entrapment defense.

      . In reinstructing the jury on entrapment, the Court attempted to draw a distinction between lawful and unlawful entrapment. We have recognized that such a distinction is “confusing and perhaps erroneous.” United States v. Groessel, 5 Cir., 1971, 440 F.2d 602, cert, denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713. We need not determine in this case whether such an instruction constitutes reversible error. United States v. Sadler, 5 Cir., 1974, 488 F.2d 434.

      . In United States v. Womack, 5 Cir., 1972, 454 F.2d 1337, 1344, we disapproved the charge which we had originally sanctioned in United States v. Blue, 5 Cir., 1970, 430 F.2d 1286 the substance of which was :
      “I will state to you in passing, if you accept the testimony of these witnesses, then there is sufficient evidence for you to find each of these Defendants guilty under this count but their credibility is a matter for you to pass on. If you do not accept that evidence as credible or believable, then that is for you to decide because you pass on that. I merely give you these instructions. If you do not accept that testimony offered by the Government, then, of course, you would find the Defendants not guilty. If you believe the evidence of the Government or these witnesses here, there is sufficient evidence for you to find these Defendants guilty.”

      . We decline to consider Appellant’s belated second thought contention raised here for the first time that he was entitled to a verdict of entrapment as a matter of law on the grounds that the government failed to satisfactorily explain its contingent fee arrangement with the informer, the existence of which was brought out on cross-examination relying on Williamson v. United States, 1962, 5 Cir., 311 F.2d 441.

      . See, e. g., footnote 8, supra.

      . Except for an anchor to windward concerning conduct of government agents with which the Court “may some day be presented . so outrageous that due process would absolutely bar the government from invoking judicial processes to obtain a conviction.” 411 U.S., at 431, 93 S.Ct. at 1642, 36 L.Ed.2d, at 373. Cited as an analogous situation is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which incriminating evidence was recovered from a handcuffed defendant by means of an emetic solution forced through a tube inserted against his will into his stomach. The Bueno situation and those in other cases cited and ready-toliand were not instanced.