author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy Edward DAVIS, Sr., and Dennis Bates Fletcher, Defendants-Appellants.
    No. 72-1682.
    United States Court of Appeals, Fifth Circuit.
    Oct. 16, 1973.
    As Amended on Denial of Rehearing and Rehearing En Banc Denied Nov. 19, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1573.

      Ralph Elliott, Sherman, Tex. (court appointed) for Davis.
    Mac Oyler, Oklahoma City, Okl., for Fletcher.
    Roby Hadden, U. S. Atty., Dennis R. Lewis, Asst. U. S. Attys., Tyler, Tex., for plaintiff-appellee.
    Before DYER, SIMPSON and MORGAN, Circuit Judges.
   SIMPSON, Circuit Judge:

Billy Edwards Davis, Sr. and Dennis Bates Fletcher appeal from judgments of conviction after a joint jury trial for conspiracy, bank robbery, and interstate transportation of stolen money. The jury found Fletcher guilty of bank robbery, in violation of Title 18 U.S.C. Section 2113(d), of interstate transportation of stolen money, in violation of Title 18, U.S.C., Section 2314, and of conspiracy, Title 18 U.S.C. Section 371, to violate Section 2113(a) and (d). Fletcher was sentenced to concurrent confinement terms of 18, 10 and 5 years respectively, all sentences being imposed under the indeterminate parole statute, Title 18 U.S.C. Sec. 4208(a)(2). The jury found Davis guilty under a bank robbery count, Count II, Title 18 U.S.C. Section 2113(d), and under the conspiracy count, Count IV. He was not charged under Count III, the interstate transportation count. Davis was sentenced to concurrent confinement terms of 20 and 5 years respectively. He was also sentenced under Section 4208(a)(2). Count I charged both appellants with violation of Section 2113 (a) of Title 18 U.S.C., but was dismissed by the United States at trial. Appellants raise numerous contentions of error, but finding no prejudicial error demonstrated in the proceedings below, we affirm.

The Bight to Speedy Trial and to be Free From Excessive Pre-Indictment Delay

Both Davis and Fletcher contend that the conduct of the government in causing or permitting delay of about twenty-four months between the commission of the offense and the commencement of their joint trial constituted either a denial of appellants’ Sixth Amendment rights to speedy trial or pre-indictment delay violative of Fifth Amendment due process. An outline of the events preceding the trial and conviction below is necessary to put these contentions in proper focus.

On January 16, 1970, the First National Bank of Tom Bean, Texas was robbed. On March 27, 1970, the grand jury indicted Davis and Fletcher, appellants here, as well as Carl W. Dennie, Jr. and Charlene Hightower, charging bank robbery in violation of Title 18 U.S.C. Sections 2113(a), (c), and (d). Arraignment on June 1, 1970 brought forth not guilty pleas from all defendants and trial was set for November 30, 1970. Dennie’s motion for severance was granted at that time.

On November 23, 1970, the court dismissed the original indictment at the government’s motion, so as to permit a charge of conspiracy to be brought.

On April 16, 1971, the grand jury re-indicted Davis and Fletcher, along with Dennie, with Robert Reno Schneider named as a co-conspirator but not indicted. On May 10, 1971, Davis was arraigned and pled not guilty. On that date Dennie entered a plea of guilty to the conspiracy count. On May 19, Fletcher pled not guilty, requested and was allowed 30 days for filing preliminary motions. On June 11, Davis moved to dismiss on grounds of the denial of speedy trial and Fletcher filed a similar motion on June 21. Trial was set for October 18, 1971, but was continued on Davis’ motion for continuance therefor filed on September 16, 1971. Subsequently, after trial date was set for January 17, 1972, Davis’ second motion for continuance was filed on December 15, 1972. Trial was then reset for the week of January 24, 1972. Actual taking of testimony commenced on February 4, 1972.

Appellants both assert that the delays involved, including the dismissal of the first indictment. was unnecessary and prejudicial, and constituted a denial of their rights to speedy trial, or ’in the alternative prejudicial pre-indictment delay. Both contentions are rejected.

The right to a speedy trial as guaranteed by the Sixth Amendment and implemented by F.R.Crim.P. 48 does not arise until prosecution is instituted against the accused, either through arrest, indictment, or information. Absent a showing of extreme prejudice amounting to a Fifth Amendment denial of due process, the commencement of prosecution is controlled exclusively by the applicable statute of limitations. United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. Judice, 5 Cir. 1972, 457 F.2d 414. The following from Marion indicates the parameters of impermissible pre-indictment delay:

“. . . it is appropriate to note here that the statute of limitations does not fully define the appellee’s rights with respect to the events occurring prior to the indictment. Thus, the Government concede[d] that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellee’s rights to a fair trial and that the delay was a [purposeful] device to gain tactical advantage over the accused.” 404 U.S. at 324, 92 S. Ct. at 465, 30 L.Ed.2d at 480-481.

We have considered the pre-indictment delay in this case including weighing of the time of the second indictment and the action of the government in dismissing the first indictment against appellants. The requisite showing of prejudice is absent.

As regards the delay between the second indictment and trial, we apply the fourfold test of Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, in determining whether Sixth Amendment rights to a speedy trial were violated.

The elapsed time between the second indictment on April 16, 1971 and trial was nine or ten months. In Barker v. Wingo, supra, the Supreme Court adopted a balancing test for determining whether a defendant’s right to speedy trial has been violated. Under that test the conduct of the prosecution and the defendant is balanced, on an ad hoc basis, giving particular attention to four factors: (i) length of delay, (ii) the reason for the delay, (iii) the defendant’s assertion of his right, and (iv) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-117. We do not believe that the period that elapsed between indictment and trial constituted an unreasonable delay in the circumstances of this case. This modest delay of considerably less than a year is not inappropriate per se in a case of this type since preparation of a complex interstate conspiracy case involving multiple defendants may well require more time before trial than prosecution of a single street crime, Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-117. While both defendants made early demands for speedy trial as to the second indictment, Davis’ counsel twice requested continuances: on September 16, 1971 as to the trial set for October 18, 1971, and again on December 15, 1971 as to a trial date of January 17, 1972. Each continuance was granted by the trial judge for other assigned reasons, the first until further order because Davis’ co-defendant Dennie was scheduled to go to trial in the state court for murder on October 18, 1971, and the second for one week to permit the trial judge to sit as a member of a three-judge statutory court, neither motion for continuance was withdrawn by Davis’ counsel. While Fletcher did not seek any continuance following his initial demand for speedy trial, he made no effort to reassert that demand or to seek severance of his ease upon the trial court’s granting of the continuances noted above. The delay here was at least partially sought by the defendant Davis, and in any case is insignificant time wise.

We must examine finally both appellants’ extensive claims of prejudice allegedly caused by the delay in this case.

Fletcher alleges prejudice resulting from pre-trial incarceration, the stigma of being an accused, dimming of witness memory, and inability to locate key defense witnesses. We note Fletcher spent only 13 or 14 days in jail as a result of the charges involved here; whatever additional incarceration he endured during the pre-trial period was the result of a state conviction in Oklahoma. Incarceration on this state charge diminishes practically to the vanishing point his claim of stigma arising from failure to try him promptly on the charges in the instant case. Dimming of witness memory is not shown. Both Fletcher and his principal alibi witness Charlene High-tower vividly recalled and testified to details of events around the time of the alleged crime.

Davis also makes numerous assertions of prejudice resulting from the pre-trial delay here. Davis was never incarcerated prior to trial as a result of the charges in this case. His imprisonment during the pre-trial period was in consequence of other convictions.

Davis claims prejudice also as a result of a lost witness, Bob Beekles. His witness Richard Murray testified at trial that Davis had never told government witness Horton that Davis had robbed a bank. Both Horton’s and Murray’s testimony concerned Davis’ statements to them when the three of them were incarcerated together at the Oklahoma City Jail. Davis’ missing witness Bob Beekles would only have offered cumulative testimony on this point.

The missing witnesses Chitwood and Little would have testified cumulatively to facts brought out by Davis’ witness Thomas concerning Davis’ claimed presence at the May Ten Cafe at the time of the crime. Davis also maintains that the missing witnesses Hermann Williams and Bruce Hayes would have corroborated Davis’ own testimony that he trav-elled to and from Dallas in an Econoline Van, thus negating his presence in the 1969 Dodge with his alleged co-eonspira-tors. There was evidence, however, from which the jury was justified in concluding that Davis’ self-serving testimony as to this point was false. Evidence was presented to show that Davis, after first telling the FBI 'that he had gone to Dallas in the Econoline Van, then changed his story, stating he went in a Plymouth Barracuda.

Davis’ claim that his memory was dimmed by the pre-trial delay is refuted by his own testimony at trial which was lucid and replete with factual details.

The appellants contend that delay preceding the second indictment constitutes a denial of fundamental due process, see United States v. Marion, supra. Appellants assert that the dismissal of the first indictment' under F.R. Crim.P. 48(a) barred their subsequent re-indictment and prosecution on the second indictment, an argument made and rejected in United States v. Chase, 4 Cir. 1967, 372 F.2d 453:

“It is true that Rule 48(a) states that a United States Attorney may, by leave of court, file a dismissal of an indictment ‘and the prosecution shall thereupon terminate,’ but the authorities are replete that such a dismissal is without prejudice. Mann v. United States, 113 U.S.App.D.C. 27, 304 F. 2d 394, cert. den. 871 U.S. 896, 83 S. Ct. 194, 9 L.Ed.2d 127 (1962); United States v. Becker, 221 F.Supp. 950 (W.D.Mo.1963); United States v. Shanahan, 168 F.Supp. 225 (S.D.Ind. 1959); United States v. Bowles, 183 F.Supp. 237 (D.Me.1958); United States v. Garces Dorrego, 17 F.R.D. 340 (D.Puerto Rico 1955). According to the rule, it is only when a trial has begun and jeopardy has attached that a dismissal may not be filed without a defendant’s counsel.” 372 F.2d at 463-464.

See also, United States v. Manetti, D. Del.1971, 323 F.Supp. 683, 691. It is precisely because a dismissal under Rule 48(a) does not bar a subsequent prosecution that the rule requires the consent of the court. The trial court did not abuse its discretion in dismissing the first indictment under Rule 48(a). Cf. United States v. DeLeo, 1 Cir. 1970, 422 F.2d 487.

Appellants raise the specter that failure to hold that the Rule 48(a) dismissal in this case barred subsequent prosecution will create a situation analogous to that which the Supreme Court found offensive in Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L. Ed.2d 1. In Klopfer, the Court condemned a North Carolina procedure which permitted the prosecutor to take a nolle prosequi with leave, a procedure which allowed the defendant to remain at liberty but which also permitted the prosecutor to return the case to the trial calendar at any time. The crucial difference between the procedure condemned in Klopfer, supra, and the effect of a Rule 48(a) dismissal is that under the invalid North Carolina procedure the statute of limitations was tolled, keeping alive the possibility of an eventual prosecution in the distant future. The prime fault of North Carolina procedure was its denial to the defendant of his primary protection against pre-in-dictment or post-indictment delay, the statute of limitations. United States v. Marion, supra. In contrast, dismissal under Rule 48 does not' impair the protection afforded by the statute of limitations. See the federal limitation statutes, Title 18 U.S.C. Sections 3281 through 3291. The point raised is devoid of substance.

We turn to appellants’ claim of prejudicial pre-indictment delay. Initially we observe that there is no showing that the delay before the second indictment, resulting in part from the dismissal of the first indictment, was a purposeful device to “gain some tactical advantage over [the accused] or to harass them” United States v. Marion, supra, 404 U. S. at 325, 92 S.Ct. at 466, 30 L.Ed.2d at 481. The allegations of pre-indictment delay were carefully examined by the trial court. Co-conspirator Robert Reno Schneider did not cooperate with the government until after the first indictment was dismissed. When- it became apparent that Schneider would testify he was promptly brought before the grand jury which then returned the second indictment. Appellants’ claims of prejudice resulting from delay are relatively insubstantial. No loss of a key defense witness or other substantial prejudice is shown. Prosecutorial overreaching is absent. We have recently pointed out that “. . . all practiced trial lawyers are well aware that the attrition from such delay is more damaging to the prosecution’s case than to that of the defense. This will be so as long as the prosecution has the burden of proof.” United States v. Judice, 5 Cir. 1972, 457 F.2d 414, 418 Prejudice so substantial as to amount to a denial of due process of law is not made to appear.

Admission of the Stolen Trav-ellers Checks

The appellant Fletcher urges that error occurred in the admission in evidence at trial of travellers checks taken in the robbery of the First National Bank of Tom Bean. The several counts of the indictment alleged only (1) the robbery of money from the bank, (2) a conspiracy to take money from the bank by force and violence and by use of dangerous weapons, and (3) the interstate transportation of $32,789 in stolen money by Fletcher from Tom Bean, Texas to Oklahoma City, Oklahoma. Fletcher contends that he was prejudiced by testimony and proofs concerning $10,420 in travellers checks missing in the robbery. Some were found in his possession at the time of his arrest, numerous others came in for payment to the Republic National Bank of Dallas, which had consigned them to the Tom Bean Bank. According to the government’s evidence, the latter were negotiated by a witness Sandra Chapman who had received them from Fletcher. Fletcher’s counsel objected to this evidence and made several motions for mistrial on the ground of a material and prejudicial variance from the indictment, by allowing a crime not charged to be proven at trial. Counsel both below and here cited Stirone v. United States, 1960, 361 U.S. 212, 80 S. Ct. 270, 4 L.Ed.2d 252; United States v. Bursten, 5 Cir. 1971, 453 F.2d 605, in an effort to show that Fletcher was tried and convicted for an uncharged crime, and that this was in effect an alteration of the indictment. This reliance is misplaced. The jury was not permitted to view the theft of the travellers checks as a separate crime.

Instead, this evidence was properly received under well recognized evidentiary considerations as tangible documentary evidence connecting Fletcher to the bank robbery, the very crime with which he was charged. Unexplained possession of recently stolen property may be shown to permit an inference by the finder of fact that the possessor participated in the theft of the property. United States v. Cook, 5 Cir. 1969, 419 F.2d 1306; Orser v. United States, 5 Cir. 1966, 362 F.2d 580. Permitting a jury to draw such an inference has been recently sustained as proper by the Supreme Court in Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380. Property admissible under this rule is by no means limited to property charged in the indictment to have been stolen. It may also be other property which was taken in the same theft or robbery. United States v. Marchbanks, 5 Cir. 1972, 469 F.2d 72. The travellers checks and the evidence concerning them were properly received under appropriate instructions to the jury concerning the inference permissible from the possession of property recently stolen. Barnes v. United States, supra. Error was not committed in this respect. .

Co-Conspirator’s Testimony as to Guilty Plea

A key witness against both appellants was Carl W. Dennie, Jr., who had been charged as a co-conspirator and principal in the same indictment in which appellants were charged. Prior to the trial, Dennie was allowed to plead guilty to the conspiracy count. On several occasions during the trial the jury was apprised of Dennie’s guilty plea. The subject of Dennie’s prior guilty plea arose op at least four different occasions— first during the voir dire examination of the jury panel, again during the prosecutor’s opening statement, and twice during the government’s direct examination of Dennie.

Convictions of co-defendants may not be used to prove the guilt of persons charged with the same crime, Leroy v. Government of the Canal Zone, 5 Cir. 1986, 81 F.2d 914, and it is error to instruct a jury that it may consider the fact that co-defendants have pled guilty, Babb v. United States, 5 Cir. 1955, 218 F.2d 538. But a cautionary jury instruction is usually adequate to dispel the prejudice inherent in a co-defendant’s testimony that he has pled guilty or been convicted of the very offense for which the defendant is charged. United States v. Baete, 5 Cir. 1969, 414 F.2d 782. In United States v. Harrell, 5 Cir. 1970, 436 F.2d 606, we cautioned as to proof at trial of a co-conspirator’s guilty plea:

“Again, we decide only the case before us. But we think that the evi-dentiary purpose ordinarily to be served by proof of a co-defendant’s plea of guilty is so shadowy, so insubstantial that it would be the better practice in run-of-the-mill cases to exclude such proof altogether.” 436 F. 2d at 617.

In Harrell, the trial court gave no cautionary instruction and the government claimed no evidentiary purpose whatsoever in the introduction of the co-conspirator’s guilty plea. Both this Court, United States v. Harrell, supra; United States v. Baete, supra, and other courts, e. g., United States v. Del Purgatorio, 2 Cir. 1969, 411 F.2d 84; United States v. Freije, 1 Cir. 1967, have stressed as controlling the existence and adequacy of the trial court’s cautionary instructions in a situation where the jury is made aware of a codefendant’s guilty plea entered prior to giving evidence for the government.

Both Davis and Fletcher objected when Dennie was first questioned about whether he had entered a plea of guilty in this case. The trial court instructed the jury as follows:

“Ladies and gentlemen, anything that this witness [Dennie] may have said at the time that he entered his plea of guilty would not be binding upon the Defendants in this case, and you may not consider it as evidence against them, since it would be hearsay as to them.”

Again in his closing instructions the trial judge cautioned the jury that each defendant is entitled to have his guilt or innocence determined by his own acts. We are unwilling to hold that the introduction of Dennie’s guilty plea was reversible error within the context of this case, although we reiterate our Harrell caveat. We do not find here the special aggravated circumstances found in Harrell which would require reversal because of the introduction of the guilty plea. United States v. Baete, supra, 414 F.2d at 783.

Exhibition of Fletcher’s Photo to the Jury

Fletcher asserts that error occurred in the exhibition of a photograph of him to the jury. The questioned picture was a composite of two separate photographs —one full face and one in profile. Along with eight others this photograph had previously been shown to the trial judge with the jury out of the courtroom in order for him to determine if FBI special agent Wilkinson had displayed the photographs to witness Dan Fagan in an impermissibly suggestive manner. The judge had ruled that the photograph spread was not impermissi-bly suggestive and that there was not a substantial likelihood of irreparable mis-identification. See Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

After this ruling, counsel for Davis attempted to exhibit the photographs to Fagan in the jury’s presence. At the request of Fletcher’s counsel the judge again retired the jury; whereupon Fletcher’s counsel objected to the display of Fletcher’s photograph to the jury on the ground that the “mug shot” character of the composite would imply that Fletcher had either a prior criminal record or an arrest record. The trial judge ordered that the top of the photograph showing identification numbers be removed, and specifically directed Davis’ counsel not to highlight the photograph of Fletcher in his cross-examination of Fagan. The judge further ordered that the record show that the photographs were placed on the jury rail facing away from the jury when Fagan came down from the witness stand to identify them. Fletcher’s motion for a mistrial was overruled.

Fletcher cites United States v. Harmon, 4 Cir. 1965, and Barnes v. United States, 1966, 124 U.S.App.D.C. 318, 365 F.2d 509 for the proposition that a “mug shot” may not be shown to a jury because such a photograph implies that the accused has either a prior criminal record or a prior arrest record, and thus raises the issue of the character of the accused without his having placed his' character in evidence..

Harmon concerned a picture exhibited to the jury which bore identification numbers. A government agent had already suggested a prior conviction to the jury, and the court found that there was no proper evidentiary purpose for the introduction of the photograph. Also, Harmon did not thereafter place his character in issue by taking the stand at any time during trial. The Harmon court relied on all of these factors in deciding that prejudice occurred in exhibiting the photograph to the jury.

In Barnes, the identifying numbers on the photograph were merely masked over with adhesive tape before the photograph was exhibited to the jury. The Barnes court felt that the masking tape emphasized that something was being hidden, which may have heightened the importance of the picture in the minds of the jury.

Here, in contrast, the trial judge carefully removed any identifying marks from the pictures, and the pictures themselves were not highlighted by the testimony. Later in the trial, Fletcher took the stand and testified as to his prior felony conviction. The effect of this later testimony was to obliterate any possible prejudicial effect upon the jury or the prior exhibition of the composite photograph. Cf. United States v. Silvers, 7 Cir. 1967, 374 F.2d 828. Reference to or use by a defendant of an erroneously admitted line of evidence ordinarily cures or waives error. Jarabo v. United States, 1 Cir. 1946, 158 F.2d 509, 514; United States v. Bramson, 2 Cir. 1943, 139 F.2d 598, 600, cert, denied sub nom., North v. United States, 1944, 321 U.S. 783, 64 S.Ct. 636, 88 L.Ed. 1075.

The In-Court Identification by Lackey

Davis and Fletcher both assert that the in-eourt identification of them by government witness Claude Lackey was tainted by a pre-trial photographic display. As required by our decision in United States v. Sutherland, 5 Cir. 1970, 428 F.2d 1152, the trial judge conducted an extensive examination of the circumstances involved in the photographic spread and Lackey’s identification. He concluded that under Simmons v. United States, supra, the previous photographic displays had not been impermissibly suggestive and that there was no substantial likelihood of irreparable misi-dentification, and permitted Lackey’s positive identification of both appellants as principals in the bank robbery to go to the jury. Error is not shown in the procedures employed by the trial judge or in his finding of admissibility.

Davis and Fletcher both complain also that Lackey’s in-eourt identification was tainted because Lackey observed both accused in custody outside the courtroom preceding trial as well as in the courtroom in circumstances that clearly indicated that they were the defendants in this case. Lackey did not make positive identification of the defendants until he took the stand to testify. It was proper cross-examination for defense counsel to develop the details of these prior observations as affecting the credibility of Lackey’s in-court identification. Nevertheless, such observation of the defendants by the witness immediately prior to the witness’ trial testimony differs considerably from identifications made prior to trial with attendant requirement of procedures calculated to diminish the risk of misidentification. United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Simmons v. United States, supra. The point raised is not substantial.

Failure to Disclose Statements of Prosecution Witnesses — the “Brady” Rule

Fletcher by pre-trial motion sought discovery of any previous statements in the government’s possession made by Carl Dennie concerning Fletcher’s participation or lack of participation in the crime. The court made an in camera inspection of the material in the government file and denied the motion. The question was renewed in the absence of the jury when Dennie took the stand. The court then denied the request but nevertheless made all Dennie’s statements available to Fletcher’s counsel. The contention that Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215, was somehow violated is incomprehensible. Brady applies to suppression. Here the exact opposite, disclosure, was required.

Equally without merit is Fletcher’s accompanying claim that Brady’s teachings required the production of statements in the government’s file implicating others in the bank robbery. None of this material was in any sense exculpatory of- Fletcher, the primary target of Brady based motions. This was fully developed at the pre-trial hearing on Fletcher’s motion.

Evidentiary Rulings

Fletcher questions a number of evi-dentiary rulings at trial. We find no merit in this attack, but discuss several of the closer points raised.

Fletcher asserts prejudicial error occurred when FBI special agent Harvey was allowed to read to the jury a report Harvey had previously prepared. The report dealt with an interview by Harvey with Fletcher a year and a half prior to trial, on July 10, 1970, and was prepared from rough notes made by Harvey during the interview. Harvey testified that he had destroyed the original field notes following the preparation of the smooth report for his file.

Fletcher asserts that while it was proper for the witness to refresh his recollection from the reports, the act of reading them to the jury constituted impermissible secondary evidence, citing Gaines v. United States, 1965, 121 U.S. App.D.C. 213, 349 F.2d 190; Young v. United States, 1954, 94 U.S.App.D.C. 62, 214 F.2d 232; Rosenthal v. United States, 8 Cir. 1918, 248 F. 684. These cases are inapposite. They deal rather with a government attorney’s reading in the jury’s presence a hostile witness’ prior inconsistent statements, under the guise of refreshing the witness’ recollection.

The witness Harvey in this case read from a paper prepared by him. The trial judge in overruling an objection stated: “I think the jury understands — if not, I will tell you that the witness is relating an interview which he alleges that he had with the defendant Fletcher and that the defendant Davis was in no wise connected with it.”

We have dealt with a very similar situation in this language:

“We have carefully considered the contention of the appellants that the trial court erred in permitting the principal prosecution witness to testify extensively from a statement made up by him from his original field notes, thereafter destroyed. It is clear from a reading of the transcript of the trial that the witness testified that his recollection was refreshed by the written statement. We, therefore, conclude that the trial court did not err in permitting his testimony to be received in evidence even though on some occasions he stated that without reference to the written statement he could not recall all of the events that had transpired.” Redfearn v. United States, 5 Cir. 1967, 375 F.2d 767.

The previously prepared statement is itself admissible as past recollection recorded if the witness had personal knowledge of the recorded events, and if the witness knows that the statement was accurate at the time that it was prepared. Papalia v. United States, 5 Cir. 1957, 243 F.2d 437. See also, United States v. Booz, 3 Cir. 1971, 451 F.2d 719, 725; United States v. Riecardi, 3 Cir. 1949, 174 F.2d 883, 887-888, cert, denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746; Putman v. Moore, 5 Cir. 1941, 119 F.2d 246; United States v. Kelly, 2 Cir. 1965, 349 F.2d 720, 770, cert, denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544.

Harvey testified that he remembered the conversation and that the prepared statement was accurate when made. No error occurred when the witness read from the statement.

Fletcher raises the point that government counsel improperly interrogated government witnesses as to prior inconsistent statements. In the event that a party, government or defense, is surprised by one of its witnesses, it is entitled to impeach its own witness by questions concerning the witness’ prior inconsistent statements. United States v. Dobbs, 5 Cir. 1971, 448 F.2d 1262. Such impeachment is of course permitted only for the purpose of cancelling the adverse effect of surprise, and the government may not use the prior inconsistent statement for the purpose of supplying anticipated testimony. This would be tantamount to permitting the use of hearsay. United States v. Dobbs, supra; Slade v. United States, 5 Cir. 1959, 267 F.2d 834; Culwell v. United States, 5 Cir. 1952, 194 F.2d 208; Young v. United States, 5 Cir. 1938, 97 F.2d 200. On the other hand if the witness admits the truth of the prior inconsistent statements then the witness in effect adopts the prior statement as his present testimony, given under oath and subject to cross-examination. The hearsay element is no longer present. Feutralle v. United States, 5 Cir. 1954, 209 F.2d 159,161-162.

The challenged impeachment below of the witness Keene merely had the effect of neutralizing his prior testimony. No new matter was introduced. The impeachment of the witness Dennie was similarly limited to overcoming the effect of his previous testimony. As to Dennie, the record indicates further that later in his testimony he repudiated his first testimony and testified in accordance with his prior statement, thereby adopting the prior statement as his present testimony. The effect was to remove any possible prejudice arising from government efforts to impeach its own witness. In the circumstances present no error occurred through government impeachment of its own witnesses. Pinder v. United States, 5 Cir. 1964, 830 F.2d 119.

Fletcher objects to the testimony of several witnesses concerning declarations made by co-conspirator Dennie when Fletcher was not present. John D. Keel testified concerning an automobile transaction with Dennie on January 20, 1970. Carol Dennie West, Dennie’s ex-wife, testified about a conversation with Dennie on January 16, 1970. Carl Den-nie, Sr. testified concerning a conversation with co-conspirator Dennie on January 17, 1970.

Generally in a federal conspiracy trial the exception to the hearsay rule which allows the admission into evidence against one conspirator of proof of out of court statements or acts of a co-conspirator applies only to declarations or acts made in the course of and in furtherance of the conspiracy. Lutwak v. United States, 1953, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Krulewitch v. United States, 1949, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. The government’s position at trial was that the conspiracy lasted until January 20, 1970, when the getaway ear was disposed of. The testimony of witness Keel concerned Dennie’s disposition of that car.

The indictment alleged the life of the conspiracy as from December 1, 1969 until January 20, 1970. While mere concealment of the crime is not furtherance of the conspiracy for the purposes of the hearsay exception, Krulewitch v. United States, supra, “acts of concealment done in furtherance of the main criminal objectives of the conspiracy” are in furtherance of the conspiracy for purposes of the co-conspirator exception to the hearsay rule. Grunewald v. United States, 1957, 353 U.S. 391, 405, 77 S.Ct. 963, 974, 1 L.Ed.2d 931, 942. It has been held that disposition of the stolen property, or disposition of other instrumentalities of the crime, are acts done in furtherance of the conspiracy. Atkins v. United States, 9 Cir. 1962, 307 F.2d 937; Feyrer v. United States, 9 Cir. 1963, 314 F.2d 110. We find support in the record for the trial court’s conclusion that the conspiracy did not end until the disposition of the car on January 20, 1970. Hence Dennie’s acts and declarations on that date occurred during the pendency of the conspiracy, and were properly admitted under the co-conspirator exception to the hearsay rule, as done in furtherance of the objects of the conspiracy.

The government also called as a witness James Horton, who had been incarcerated with defendant Davis in the Oklahoma City Jail in February, 1970. Horton testified to inculpatory statements which Davis made to him over a ten day period, including the details of Davis’ participation in the bank robbery. Government counsel was. scrupulously careful not to elicit the names of any participants other than Davis from Horton. Additionally, the trial court at Fletcher’s request instructed the jury that Horton’s testimony was to be considered only against Davis, and not against Fletcher. Because Davis’ inculpatory statements to Horton were sanitized of reference to Fletcher, this appeal presents no problem under Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, despite Fletcher’s contrary contention.

Prosecutional Comments on Witness Veracity

Appellant Fletcher urges that the U.S. attorney in closing argument improperly offered his own opinion on the veracity of government witnesses. The argument was objected to when made, clearly preserving the point for appellate review. We set forth in the margin in ex-tenso the argument, the objection and the court’s ruling thereon.

In Gradsky v. United States, 5 Cir. 1967, 373 F.2d 706, this Court held it impermissible and reversible error for the prosecutor to state that “ . the government representatives don’t put a witness on the stand unless there appears to be some credibility, until he appears to be a truthful witness.” 373 F.2d at 710 (emphasis deleted). The rule is that it is improper for the prosecutor to indicate that he can vouch for the credibility of a government witness because of facts personally known to the prosecutor but not introduced into evidence. Hall v. United States, 5 Cir., 1969, 419 F.2d 582-586; McMillan v. United States, 5 Cir. 1966, 363 F.2d 165, 168; Dunn v. United States, 5 Cir. 1962, 307 F.2d 883, 885. The prosecutor should not, on the basis of claimed superior knowledge, endorse the veracity of a witness.

But this is not the situation in the instant case. Here, rather, the prosecutor commented upon the testimony of the government witnesses in light of the record. His comments did not rise to the level of forbidden endorsement of a government witness. Cf. Lawn v. United States, 1958, 355 U.S. 339, fn. 15 at 359, 78 S.Ct. 311, fn. 15 at 323, 2 L.Ed. 2d 321, fn. 15 at 335. Additionally, in this case, when the objection was made the trial judge promptly and correctly pointed out to the jury that “what all the lawyers say here are mere argument. What the lawyers say is not evidence.” Note 5, supra.

Dennie’s Testimony as to Threats Against Him by Fletcher

Fletcher urges that it was error for the court below to allow the government witness and alleged co-conspirator, Carl W. Dennie, Jr. to testify to threats made against him by Fletcher, and also by other penitentiary inmates. As a squealer, or “stoolie”, prison pressures against his testifying would fit the usual and to be expected pattern. The court below was extremely careful to exclude all hearsay factual statements, and threats by others than Fletcher, by full preliminary disclosure of the proposed testimony out of the jury’s presence. We do not perceive error in the procedures followed. Certainly, as to direct threats against Dennie by Fletcher, the testimony was competent, and was relevant as indicating Fletcher’s animus. See generally, 21 Am.Jur.2d Evidence, Sec. 293, Annotation, 62 A.L.R. 136. Cf. Silkworth v. United States, 2 Cir. 1926, 10 F.2d 711.

Credibility of Government Witness

Fletcher also makes an entirely meritless argument that the testimony of Dennie was so inherently incredible that the trial judge should not have permitted his testimony to be considered by the jury, but should have stricken it in its entirety on his motion. He attempts to reinforce this position by coupling it with objections to a jury charge given at the government’s request to the effect that the government is not bound by the testimony of its witnesses in its entirety. It is the function of the jury, not the court, to determine the credibility of witnesses. The jury’s verdict should be sustained if there is substantial evidence, viewed in' the light most favorable to the government, to support it. Glasser v. United States, 1942, 315 U.S. 60, 80; 62 S.Ct. 457, 469, 86 L.Ed. 680, 704; United States v. Fuentes, 5 Cir. 1970, 432 F.2d 405, 408. Despite numerous inconsistencies and some contradictions in Dennie’s testimony the trial court did not err in allowing the jury to consider that evidence, Pierce v. United States, 1930, 252 U.S. 239, 251-252, 40 S.Ct. 205, 210, 64 L.Ed. 542, 548; Williamson v. United States, 5 Cir. 1966, 365 F.2d 12, 14; Gorman v. United States, 5 Cir. 1963, 323 F.2d 51, 52, and the jury instruction in the context of this trial, is not shown to have been improper.

Refusal to Give Jury Instruction Requested by Davis

Davis urges that the trial judge should not have refused to give the following requested charge to the jury:

The evidence discloses that the defendant, BILLY EDWARD DAVIS, SR., has been locked up and imprisoned ever since he was charged herein. There is evidence that he has been and is destitute, indigent, and in percunious (sic) circumstances. On the other hand, the evidence discloses that during this same period of time investigative forces and prosecutorial efforts of the Government have been at almost constant attendance.
You are instructed that you may take into consideration the relative disparity and ability as between the Government and .the defendant to discover and present evidence. In other words, the Government, circumscribed by the circumstances surrounding the defendant, may have been able to present evidence of less cogency and persuasion, than the defendant, emancipated [sic] and clothed with the resources of the Government, may have been able to adduce evidence of great cogency and persuasion, and you are instructed that you may take these factors into consideration in determining the guilt or innocence of the defendant, BILLY EDWARD DAVIS, SR.

In urging his right to some kind of instruction on the relative abilities of the government and the defense to prepare for trial, Davis cites Stewart v. United States, 1969, 135 U.S.App.D.C. 274, 418 F.2d 1110 and McAbee v. United States, 1961, 111 U.S.App.D.C. 74, 294 F.2d 703. These cases are inapposite. They deal with the “missing witness” instruction, that is to say the instruction respecting the unfavorable inference to be drawn when a party fails to produce a witness whose testimony would elucidate a transaction when the witness is peculiarly within that party’s power to produce. The instruction is argumentative in content, more appropriate to a lawyer’s jury argument than to a court’s jury instructions as to the law. Absent compelling authority, we decline to require that it be given.

Conclusion

Careful review of all the points raised on appeal by industrious and ingenious counsel fails to demonstrate that harmful error occurred in the trial below.

Affirmed.

      . We do not find it necessary in the context here to comment upon the effect of delay caused. by one defendant upon a speedy trial demand asserted by a co-defendant.

      . These claims relate both to the speedy trial claim and to the related claim of pre-indictment delay, discussed infra,

      . F.R.Crim.P. 48(a) provides:
      Rule 48. Dismissal
      (a) By Attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

      . In the Sutherland-typo hearing the trial judge carefully considered the opportunities for observation which Lackey had at the time of the crime, including the effect of Lackey’s advanced age upon his powers of observation, as well as the circumstances surrounding the photographic displays with a view to determining whether and to what extent government agents made impermissible suggestions to the witness during the display.
      Mr. Lackey was president of the bank at the time of the robbery. He testified that Davis and Fletcher came to his home, tied up his wife at gunpoint, and forced him to drive to the bank and open its vault. Lackey’s testimony was strongly supportive of the government’s case and the trial judge took commendable care in determining that Lackey’s in-court identification was untainted.

      . MR. KNOWLES: Ladies and gentlemen, there certainly are other ways, and I think we liave other evidence here to show that. I did not mean to infer that that was the only evidence, but as an attack on our witnesses, I feel that I should tell you that the witnesses that we used are the witnesses that we found to be involved in the crime. We’re not free to go out and bring in any witnesses. We have to bring in the people that were there, the people that saw it, the people that were on the scene, the people that know who was there that know what was said and know what happened, and that is exactly what we did.
      In addition to that, of course, we brought in Mr. Horton. There has been a lot of stuff said here about Mr. Horton. He’s been called various things by counsel for the defense. He’s been called an informer, stool-pigeon, various of these terms, and I submit to you, ladies and gentlemen, that what Mr. Horton is, is a tattletale. That’s exactly what he has done, but now, tattletales don’t necessarily tell lies, Mr. Horton told the story— he said on the stand, “I don’t know if this is the truth, I’m not saying this is the truth. I wasn’t there. I wasn’t at the bank robbery. This is what Mr. Davis told me, though,” and that’s all he came up here to do. He came up here to tattle. That’s exactly what he did. He came up here and told you, “Mr. Davis told me this.” When Mr. Davis told him that, he ran to the F.B.I. and told it. That’s true, but it is true, ladies and gentlemen. The fact that Mr. Horton may have been an informer doesn’t mean that he didn’t tell the truth, and the fact that Mr. Schneider got immunity doesn’t mean that he didn’t tell the truth. It is all the more reason that he would tell the truth. He couldn’t be prosecuted for the crime. That could be the biggest laugh he could get if he actually robbed the bank himself, if we granted him immunity so we wouldn’t prosecute him. Then he could come in and say, “Sure, I robbed the bank,” and he couldn’t be touched, but he didn’t do that. He told the truth.
      MR. OYLER: Your Honor, we are going to object to that. This is up to the jury to determine who told the truth, up to the prosecutor to tell . .
      THE COURT: Well now, you are making an argument, as I understand it. Ladies and gentlemen of the jury, what all the lawyers say here are mere arguments. What the lawyers say is not evidence.”

      . The full text of this instruction was :
      “You are instructed that the government is not bound by the testimony of the witnesses which it calls to the stand in a criminal case. The government is not always in a position to choose its witnesses. The government may properly strive to prove that the truth is the opposite of what its witness says. The government may offer part of what a witness says as the truth and contend against the part that it does not consider true.”


source: Caselaw Access Project

author: WILLIAM E. DOYLE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Anthony PAULDINO, Defendant-Appellant.
    No. 73-1366.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 17, 1973.
    Decided Nov. 12, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1572.

      Theodore S. Halaby, Asst. U. S. Atty. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appel-lee.
    G. Kevin Conwick, Denver, Colo., for defendant-appellant.
    Before SETH and DOYLE, Circuit Judges, and SMITH, District Judge.

       Of the Eastern District of Michigan.

   WILLIAM E. DOYLE, Circuit Judge.

The defendant was found guilty of the offense of willfully and knowingly receiving and retaining property stolen from the United States of America (an orange Volkswagen of value in excess of one hundred dollars), with intent to convert said property to his own use knowing it to have been stolen. The indictment contained other charges: Count I charged him with conspiring with one John Tumbarello and William Carl Gru-enewald to knowingly and willfully convert to their own use property of the United States, the same Volkswagen mentioned above. In count II defendant was charged with aiding and abetting John Tumbarello in converting the Volkswagen and in count III with aiding and abetting Tumbarello in knowingly and forcibly rescuing and dispossessing property seized by the government. The government voluntarily dismissed counts I, II, and III at the commencement of the trial.

The facts are somewhat unusual: The Volkswagen described in the indictment was also unusual. It had been the property of the defendant Pauldino. The Secret Service agents arrested defendant while he was driving this vehicle, which is described as a “Super Beetle” with sun roof, cut-down seats, large mag wheels and special exhaust system. This car was searched after the arrest and the search resulted in the discovery of altered and stolen savings bonds, whereupon the Secret Service seized the vehicle on the basis that it had been used to convey altered obligations of the United States. At the time of the seizure the . Volkswagen was registered in the name of defendant. The government thereafter proceeded to file forfeiture proceedings. An appropriate action was filed and notices were sent to defendant. He did not respond to the notices which were sent, nor did he take part in the proceedings. At the trial he testified that after the seizure of the vehicle in March 1972 he asked his attorney to file a petition on his behalf for a return of the vehicle and at that time was advised by his lawyer to “kiss - the car goodbye”. Although appropriate papers were prepared to seek return of the vehicle, it does not appear that these were ever processed. The vehicle was forfeited June 19, 1972 and on August 2, 1972 it was released to the Secret Service. While it was in the possession of an agent who on October 2, 1972 had parked it on the street in Denver at 3900 block south Oneida, it was taken by John V. Tumbarello on behalf of the lienholder, a Mr. Gruenewald who had loaned money to the defendant in exchange for a lien on the car. The evidence discloses that one Arnold Sch-atz told Pauldino that he had observed an orange Volkswagen similar to the one which Pauldino had owned in the 3900 block of south Oneida. Based on this, Pauldino observed the car and the “repossession” followed. The “repossession” was reported by the lienholder Gruenewald to the Denver Police Department. Also the theft of the vehicle was reported by agent Weaver to the Denver Police Department.

Meanwhile on November 2, 1972 a special agent of the Secret Service observed Pauldino driving the orange Volkswagen in downtown Denver, and he placed him under arrest. Pauldino then explained that the Secret Service never legally owned the car, and that it had been repossessed by the lienholder and sold to Able Auto Sales of which he was an employee.

The logical inference from the entire record, which the jury apparently believed, is that the recapture of the vehicle was on behalf of the defendant. Trial and conviction was had on the charge of receiving, concealing, and retaining stolen property with knowledge of its having been stolen.

The defendant’s contentions are that the government failed to prove beyond a reasonable doubt the essential elements of the count and that therefore the motion for directed verdict should have been granted. Also, since Tumbarello had been acquitted of the theft of the vehicle it is argued that this is conclusive that the property was not stolen property. It is also argued that Tum-barello believed that in repossessing he was acting on behalf of Gruenewald, the lienholder, and thus did not intend to steal it and that the absence of this essential element purged the act of its illegal character. Assuming that Tumbar-ello was an innocent agent of defendant, it is argued that the defendant did thus become a thief and he could not simultaneously be an unlawful receiver of the property.

Other points raised include:

The alleged error of the court in allowing examination of attorney Carl Harthun after the defendant had claimed the privilege of attorney and client;

The alleged error of the court in receiving the statement of the defendant made at the time of his arrest;

And the alleged error of the court in allowing the government to comment on matters of law in its closing arguments

I

SUFFICIENCY OF THE EVIDENCE

The evidence was adequate to establish that the automobile was received, concealed, and retained knowing that it was government property; that the defendant, had the requisite intent to convert it to his own use; and that he acted with knowledge that it was stolen government property.

The circumstances fully support the conclusion that defendant engineered the recapture of the vehicle from the Secret Service and did so for his own purposes. The issue whether the defendant knew that his title had been divested and that the government had become the owner was submitted to the jury.

We perceive no legal impediment to this prosecution growing out of the acquittal of Tumbarello of the theft. This judgment did not have the effect of branding the car as non-stolen property. As to defendant, it could be stolen property. Thus if the jury believed that defendant as the principal used an agent to steal the car, he would have been guilty even though the agent was innocent. A person who employs an agent to take the property for him is as guilty as he would have been if he had taken the goods himself.

Nor is there any legal obstruction to one being guilty of either larceny or receiving stolen goods growing out of the same transaction. The cases appear to be in accord in holding that in a fact situation wherein the accused was an accessory before the fact to a larceny he may also be guilty of receiving stolen goods.

We conclude that the defendant’s argument that his conviction is ill-founded in law and in the evidence is wholly without merit.

II

ALLEGED ATTORNEY CLIENT PRIVILEGE.

The evidence elicited from Mr. Harthun was taken in camera. After that it was stricken from the record. At a later time the defendant testified about some of the matters which were presented. As to this, the trial court ruled that there had been an effective waiver. On this the court found: “It is the view of the Court that Mr. Pauldino takes the stand and testifies to these matters in regard to whatever efforts he would have made; he physically took that paper out to Mr. Gruenewald; that has waived any attorney-client privilege. He has testified on the periphery of these matters. There is no privilege here by him taking the stand and testifying to these matters. He is making these matters public. Let’s go ahead. Objection will be noted. The objection will be overruled.”

Counsel complains that some testimony presented to the jury was derived from the' in camera evidence. The record is unclear on this. Both sides were seeking to develop these background facts so that it is impossible to draw distinct lines as to the existence of privilege, derivation, and waiver.

The trial court did not abuse its discretion. in receiving the evidence.

III

ADMISSIBILITY OF DEFENDANT’S STATEMENT.

Next w.e consider whether the cou'rt erred in receiving a statement of defendant at the time of his arrest. It is argued that a hearing should have been held to determine its voluntariness. The statement is brief. It reads:

Q. Did Mr. Pauldino make any statement to you at that time ?

A. He asked what he was being arrested for and we advised him auto theft, and he said it was not a stolen car, that he had — that he had a bill of sale for the vehicle. We asked him if he had it and he said he did not.

Q. Did he show you any document with regard to that bill of sale that he had mentioned?

A. No document.

MR. CONWICK: Your Honor, May I approach the bench ?

(Discussion off the record out of the hearing of the jury.)

MR. CONWICK: I will withdraw the objection.

THE COURT: Next question. Let’s go ahead, please.

In essence counsel contends that this statement is subject to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966). We disagree. The first part of the statement was spontaneous. Second, the officers were required to advise him as to the cause of his arrest. Defendant volunteered the exculpatory statement that it was not a stolen car in response to the officer’s advice. He said that he had a bill of sale for the vehicle. The officers then asked him whether he had the bill of sale. This was of course an inquiry. At the same time it was connected with and responsive to the information which the defendant had volunteered. In view of this we fail to see that there could have been any violation of the Miranda doctrine or for that matter any violation of 18 U.S.C. § 3501.

* * -X- * * *

The final contention is that the district attorney was guilty of some kind of misconduct in his final argument. The argument complained of was an illustration which was offered to the jury. Here again the error is not apparent.. The argument is properly within the record.

Judgment is affirmed.

      . See 50 Am.,Tur.2d Larceny §§ 13, 16, pp. 164-167. The author states at page 164 “ . . . Where, with the intent to steal, a wrongdoer employs or sets in motion any agency, either animate or inanimate, with the design of effecting a transfer of the possession of the goods of another to him in order that he may feloniously convert and steal them, the larceny will be complete if, in pursuance of such agency, the goods come into the hands of the thief and he felo-niously converts them to his own use. Thus, if the wrongdoer procures a person innocent of any felonious intent to take the goods for him, his offense will be the same as if he had taken the goods himself.” See also the cases collected in 42 A.L.R. 272, 273, 275 (1926).

      . See 66 Am.Jur.2d Receiving Stolen Property § 11, p. 303 and see annotation 136 A.L. R. 1087 (1942) and particularly at p. 1095. See also the federal cases which are listed in 18 A.L.R.3d 259 at 319 (1968). Cases from the fourth and ninth circuits are discussed in this note. These involved the very statute which was the subject of the charge in the case at bar.


author: WEIS, Circuit Judge. PER CURIAM:

text:
    TPO INCORPORATED, Appellee, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Eatontown National Bank, Appellant.
    No. 72-1424.
    United States Court of Appeals, Third Circuit.
    Argued April 30, 1973.
    Decided June 28, 1973.
    Submitted on Rehearing Aug 24, 1973.
    On Rehearing Oct. 31, 1973.
    See also D.C., 325 F.Supp. 663.

      Reavis & McGrath, New York City, Kaufman, Kaufman & Kaufman, Newark, N. J., for appellee; Stephen R. Steinberg, New York City, Samuel Kaufman, Newark, N. J., Paula B. Fenton, New York City, of counsel.
    William E. Murane, Gen. Counsel, Myers N. Fisher, Asst. Gen. Counsel, Washington, D. C., Parsons, Canzona, Blair & Warren, Red Bank, N. J., for appellant; John Warren, Jr., Red Bank, N. J., of counsel.
    Before WEIS, Circuit Judge, and NEWCOMER, District Judge.
   OPINION OF THE COURT

WEIS, Circuit Judge.

Should summary j'udgment be entered against a bank for refusal to honor its cashier’s checks which it claims were obtained by the payee-holder as part of a fraudulent scheme to misapply bank funds? We arrive at a negative answer but only after necessary analysis of the procedural problems involved and the intricacies of negotiable instruments law.

The dispute is one of many spawned by the misapplication of the funds of the Eatontown National Bank by its President, Douglas Schotte, in the period from April, 1967 to August 7, 1970.

While the details of his activities are not completely clear from the record of this case, it appears that Schotte bought securities valued at more than $200,000,-000 during this time from various brokerage houses, including the defendant, a member of the New York and American Stock Exchanges. Ostensibly the stock was purchased for the account of the Bank, and payment was made from its funds by cashier's checks signed by Schotte.

It appears, however, that at least a portion of the stock purchases were for Schotte’s personal speculation and that some of TPO’s employees may have participated in the fraudulent scheme. TPO has denied any involvement, but, as the Court below indicated, the plaintiff’s complicity is a matter of substantial dispute.

The ten cashier’s checks on which the plaintiff filed this suit were issued on various dates between August 3, 1970 to August 5, 1970 to TPO and were delivered to it allegedly in exchange for securities ordered by Schotte. While TPO claims that the Bank received the stock certificates, the Liquidator appointed by the FDIC says that the securities were not among the assets in the Bank when it was closed on August 7, 1970. The record does not indicate to whom TPO delivered the certificates, although it is asserted that the transactions occurred in the plaintiff’s New York office.

On August 7, 1970, the United States Comptroller of Currency declared the Bank to be insolvent, and the FDIC was appointed Receiver. When the ten cashier’s checks, totaling $686,410.65, were presented to the Bank, the Receiver refused to pay them.

The plaintiff filed suit in the New York Supreme Court in accordance with a state procedure called “Motion for Summary Judgment in Lieu of Complaint” which is utilized where an action is based upon an instrument for payment of money. CPLR § 3213, McKinney’s Consolidated Laws of New York. FDIC removed the case to the United States District Court for the Southern District of New York, and it was later transferred to the District of New Jersey.

No complaint or answer was filed by the parties in either district, although a number of affidavits were submitted in both the state and federal courts on behalf of the plaintiff and defendant. The Court below, feeling that the matters in dispute were sufficiently detailed in the sworn statements of record, proceeded to hear argument on plaintiff’s Motion for Summary Judgment without replead-ing as was done in Instituto Per Lo Svi-luppo Económico Dell’ I. M. v. Sperti Prod., Inc., 47 F.R.D. 310 (S.D.N.Y. 1969).

The Court originally dismissed the motion because it felt “that it is absolutely essential to a determination of this case to establish whether in fact there was complicity by TPO in the Schotte scheme.” However, after reargument, the Court entered judgment for the plaintiff on the theory that the delivery of the cashier’s checks to TPO having completed the transactions between the Bank and the stockbroker, payment of the instruments was required. At the same time, however, the Court reserved to the defendant the right to litigate in another suit the issues of fraud and ultra vires actions claimed by the FDIC to have vitiated the stock transactions for which the cashier’s checks had been issued.

In its opinion the District Court said:

“. . . Having received adequate consideration for the issuance of the ten cashier’s checks, the FDIC cannot now dishonor them. While it is alleged that losses sustained by ENB [the Bank] were due in part to the fraudulent acts of TPO, the ENB suffered no loss by issuing the cashier’s checks for valuable securities. That transaction was valid and complete. Thus, it must be concluded as a matter of law that the FDIC is obligated to honor the ten cashier’s checks. The alleged defense of a fraudulent con-spiraey is more properly the subject of an independent suit.
“Thus, inextricably interwoven with this matter is the anticipated action to be instituted by the FDIC against TPO and several other brokerage houses for an alleged fraudulent scheme resulting in substantial losses to ENB. While ordinarily the compulsory counterclaim rule would come into play, an action under N.Y. CPLR § 3213 generally does not permit the filing of a counterclaim. . .
“. . . Whatever possible cause of action the FDIC might have against TPO shall not be prejudiced by this decision . . . ”

Wé conclude that in the circumstances of this case:

1. The compulsory counterclaim rule is applicable;
2. Though not designated as such and vaguely stated, a defense and counterclaim based on fraud had been asserted through the documents filed by the defendant;
3. Judgment should not be entered on the plaintiff’s claim unless it is determined that the defense and counterclaim have no factual basis ;
4. FDIC is not precluded as a matter of law from proving its defense to the refusal to honor the cashier’s checks.

While New York practice may not permit the filing of a counterclaim in the special procedure utilized by the plaintiff originally, the state rules became inoperative when the litigation was removed to the district court. The Federal Rules of Civil Procedure then became applicable, and the requirement for filing a compulsory counterclaim became effective. See F.R.C.P. 81(c); 13(a). For a discussion of the applicability of the compulsory counterclaim practice, see 6 Wright and Miller, Federal Practice and Procedure §§ 1411, 1412.

The Court below was conscious of the pleading problem, and in his first letter to counsel advising that the case would be set for argument, the District Judge said:

. . I am aware of the dissatisfaction of the FDIC of having to deal with a statutory procedure which is undoubtedly quite foreign to New Jersey counsel. However, upon closer examination I am sure counsel will find that the issues are plainly set forth albeit there is no complaint. I find the matter is appropriate for decision without repleading.”

Thereafter in the first opinion, in a commendable exercise of discretion in placing substance over form, the District Court ordered that:

“. . . the moving and answering papers shall be deemed the complaint and answer, respectively.”

Insofar as our review of the record reveals therefore, FDIC was entitled to assume that it had asserted fraud both as a defense and as an affirmative claim against the plaintiff. While a more concise and specific statement might have sharpened the point, it is understandable why court and counsel were not concerned about the posture of pleadings at that stage. While the FDIC did file a separate suit against TPO after summary judgment had been granted, its action was -in conformity with the suggestion of the court in its second opinion.

An appropriate resolution of the case at this point, however, requires us to assume that the counterclaim, in fact, had been properly asserted by the defense but had been precluded by the District Court’s inadvertent reliance upon the New York statute. In our view the counterclaim is compulsory, and its presence weighs the scales against the grant of summary judgment.

Associated Hardware Supply Co. v. The Big Wheel Distributing Company, 355 F.2d 114 (3rd Cir. 1966), dealt with a factual situation not unlike that in the case sub judice. Associated Hardware sued on a contract whose existence could not be effectively controverted. The defense counterclaimed on a theory of fraud. Judge Staley, writing for this Court, said:

“Since the parole evidence rule, under the circumstances here, does not apply, and as we later demonstrate, the counterclaim was improperly dismissed, we think the entry of summary judgment on the principal claim was untimely.” At 119.
“Although we agree that there were no genuine issues of material fact as to the contract, we are just as certain that the district court committed error in granting summary judgment on the issue of fraud, as raised in both the answer and counterclaim, and on the remaining counterclaims Thus, fraud, as alleged here, is an independent action, the recovery for which may be set off against or may even exceed the amounts due and owing under the contract.” At 120-121.

The opinion is in accord with other authority which questions the advisability of the entry of judgment against one party if it appears that ultimately he may recover judgment against the moving party after trial. See 3 Barron & Holtzhoff, Federal Practice & Procedure, § 1241. Particular caution also must be exercised when the claim and counterclaim are so closely related that an issue of fact in one may prove to be important to both.

We see no special circumstances in the record which would favor the entry of judgment in favor of TPO at this time when it is possible that subsequent litigation may require a return of the sum awarded and perhaps additional monies. See Rule 54(b), 3 Moore’s Federal Practice § 13.16.

The lower Court’s entry of judgment was based on the premise that the Uniform Commercial Code as enacted by the State of New Jersey, particularly N.J. S.A. 12A:4-303, created an absolute obligation on the Bank to honor its cashier’s checks. While that proposition may be true in most instances, we find it not applicable in the unusual posture of the parties in this fact situation.

It is critical to the basic issue in this case to emphasize that the dispute is between the FDIC, standing in the shoes of the Bank, and TPO, the party which participated in the allegedly fraudulent transactions in which the checks played a part. There are no third parties, or customers of the Bank, or holders in due course whose rights are involved, at least under the most favorable theory that may be advanced to support the defendant’s counterclaim. Hence the strong considerations of public policy favoring negotiability and reliability of cashier’s checks are not germane.

The pertinent portions of the Uniform Commercial Code, upon which the lower Court relied, read in part:

“§ 4-303. When Items Subject to Notice, Stop-Order, Legal Process or Set-off; Order in Which Items May Be Charged or Certified.—

(1) Any knowledge, notice or stop-order received by, legal process served upon or set-off exercised by a payor bank, whether or not effective under other rules of law to terminate, suspend or modify the bank’s right or duty to pay an item or to charge its customer’s account for the item, comes too late to so terminate, suspend or modify such right or duty if the knowledge, notice, stop-order or legal process is received or served and a reasonable time for the bank to act thereon expires or the set-off is exercised after the bank has done any of the following:

(a) accepted or certified the item; * *
“§ 3-410. Definition and Operation of Acceptance.—
(1) Acceptance is the drawee’s signed engagement to honor the draft as presented. It must be written on the draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification. * * * »

The District Court also relied upon two cases, State of Pennsylvania v. Cur-tiss National Bank, 427 F.2d 395 (5th Cir. 1970), and National Newark & Essex Bank v. Giordano, 111 N.J.Super. 347, 268 A.2d 327 (Law Div.1970). Both are distinguishable in. that they involve third parties and part of the reasoning included in the opinions is not applicable here.

A logical beginning for discussion is a consideration of the nature of a cashier’s check.

State of Pennsylvania v. Curtiss National Bank, supra, describes the instrument as follows:

“The cashier’s check, purchased for adequate consideration, unlike an ordinary cheek, stands on its own foundation as an independent, unconditional and primary obligation of the Bank.” (427 F.2d at 400).

Earlier in the opinion the Court had said:

“A cashier’s check is defined as a bill of exchange drawn by a bank upon itself and accepted in advance by the act of its issuance and not subject to countermand by either its purchaser or the issuing bank.”

and listed a number of citations, including Polotsky v. Artisans Savings Bank, 37 Del. 151, 188 A. 63.

The latter case, however, explained the lack of authority to countermand by saying:

“The instrument therefore being one of primary obligation on the part of the bank, there can be no countermand by it such as exists where the document constitutes a mere direction or order to pay.” (emphasis supplied)

Whether “acceptance” in the definition of a cashier’s check has validity today is disputed by the authors of Willier and Hart, 6C Bender’s Uniform Commercial Code Reporter-Digest, 2-1194:

“A bank may draw a cashier’s check either on itself or on another bank. When drawn on another bank, the check is governed by the same rules as any other check; when — as here— drawn by the bank on itself, the check is effective as a note under Section 3-118(a), with the bank as maker. Thus the court erred in referring to the instrument as a draft which had been accepted. '. . .”

In any event, while a cashier’s cheek is equivalent to a negotiable promissory note of a bank, it is not the same as cash as has been loosely asserted, and the cases discussing this particular type of instrument must be carefully analyzed. It is important, also, to note that discussions about a customer’s right to stop payment on a check under § 4-403 are not helpful but only tend to confuse the issue presented here.

State of Pennsylvania v. Curtiss National Bank, supra, was concerned with a situation where a series of transactions, separate and apart from the issuance of the cashier’s check, was involved. The Court made it clear that it required the bank to honor the cashier’s check because the payee was not a party to the specific agreement in which the issuance of the cashier’s check played a part. The Court of Appeals recognized the possibility of a defense on the ground of failure of consideration if the payee were not a holder in due course but concluded:

“. . . Bankers Allied [payee] was not in any way a party to this agreement and thus cannot be required to return the $150,000, represented by the cashier’s cheek, because of the failure of consideration contemplated by the agreement.
“. . . The Bank was in no way a party to this agreement and thus cannot do what it apparently is attempting to do here and assert whatever colorable right the Borrowers might have to seek what amounts to a rescission of the stock purchase from Bankers Allied [payee].”

While the National Newark Bank case, supra, also cited by the Court below, may have reached the correct result in holding that the Bank had a duty to hon- or its cashier’s check under the facts involved there, its reasoning has been criticized, and we decline to consider it authoritative.

We think that a correct analysis of the position of the parties here is that the Bank had engaged to pay the check but, if the plaintiff is not a holder in due course, under § 3-306 and § 3-408 the Bank or the FDIC is entitled to present all defenses which would be available on a simple contract including one of lack of consideration or fraud.

Finally, we point out that § 1-103 of the Code provides that:

“Unless displaced by the particular provisions of this Act, the principles of law and equity including the law merchant and the law relative to . . principal and agent, . . . fraud, . . . or other validating or invalidating cause shall supplement its provisions.”

The District Court’s initial reaction to the contentions of the parties was correct, and summary judgment was improvidently entered.

We do not intend in any fashion to pass upon the merits of the defense or counterclaim, nor do we mean to preclude summary judgment in favor of the plaintiff if, upon more complete development of the facts, the FDIC is unable to present competent evidence to support its position. Our conclusion is simply that there were sufficient allegations presented by the defendant which require fur-ter proceedings in the trial'court.

The judgment of the District Court will be reversed and the case remanded for further proceedings not inconsistent with this opinion.

On Petition for Rehearing

Before GIBBONS and WEIS, Circuit Judges and NEWCOMER, District Judge.

OPINION OF THE COURT

PER CURIAM:

At the urging of the appellee, we have carefully reconsidered our opinion in this case, performed further research into the problems • involved, but find no reason to alter the decision we reached previously.

TPO’s Petition for Rehearing misconceives the nature and scope of our holding in this case. We emphasize once more that the decision was not concerned with a “stop order” by the purchaser of a cashier’s check since no purchaser was involved and no stop order was ever issued. The fact is that the check purports to be one drawn by the bank upon itself.

The issue is simply whether a bank may refuse to honor its cashier’s check when it is presented by the payee who is not a holder in due course but rather a party whose scheme to defraud the bank includes the issuance of the instrument.

The appellee’s claim that, in violation of the principle set out in Aldrich v. Chemical National Bank, 176 U.S, 618, 20 S.Ct. 498, 44 L.Ed. 611 (1900), we have allowed the bank to defend the action on the cheeks while retaining the securities which represent the consideration for the transaction. If our opinion left any doubt on this point, we wish to make it clear that it is a question of fact, not susceptible of summary judgment on the present record, whether ENB did receive the securities. While there appears to be some evidence that the bank may have negotiated one of the securities transferred by TPO, there is a significant lack of information on whether the remaining stock certificates ever came into the bank’s possession. We think that there is insufficient evidence to find that the transaction was complete and valid. Furthermore, the lower court’s conclusion was influenced to some extent by appellee’s erroneous-contention, which it is still unwilling to abandon, that state, not federal rules of procedure, govern the filing of a counterclaim.

We reaffirm the opinion of this court and in accordance therewith, the judgment of the district court will be reversed and the case remanded for further proceedings not inconsistent with our opinions.

      . See opinion at 325 F.Supp. 663 (S.D.N.Y.1971).

      . Willier and Hart, U.C.C. Reporter-Digest, supra, comment on the case as follows : “The court is not correct. Even though a cashier’s check is one drawn by a bank upon itself and, under Section 3-118(a), is effective as a note, the bank is not deprived of its right to stop payment since there was no acceptance under Section 3-410. The real issue was whether the defendant, who procured issuance of the check, had a right to have the bank stop payment. * * * As the court points out, the defendant probably had a cause of action for fraud or breach of contract against the seller. * * * This was not the bank’s defense, and the court is correct that, absent an indemnity, the bank would have no obligation to stop payment under Section 4-403.”

      . See 1 Michie on Banks and Banking 345, “Although there are cases to the contrary, generally cashier’s checks are not subject to countermand except for fraud, and are irrevocable in the hands of a holder in due course.”

        See also Ross v. Peck Iron & Metal Co., 264 F.2d 262, 269 (4th Cir. 1959) : “. . . Since the law is perfectly clear that a cashier’s check cannot legally be countermanded or dishonored when presented by a holder in due course . . . ”

      . A summary of the decisional law may be found in Brady on Bank Checks, 1973 Cum. Supp.:
      “§ 10.2. Bank’s obligation to pay checks. The principal text indicates that a bank’s obligation to pay a check runs to its own customer, the drawer, and not to the payee or holder. The principal text also points out that the payee of a cashier’s check has no cause of action against the issuing bank for wrongful dishonor of such cashier’s check.
      “On the other hand, it is clear under the Uniform Commercial Code that the bank by the mere act of issuing a cashier’s check binds itself to pay the instrument, and cannot stop payment on it, even where the purchaser or person who procured its issuance has a claim arising from the underlying transaction which gave rise to the instrument. In other words, a bank is in a position of an acceptor (or certifying bank) by the mere act of issuing and delivering a cashier’s check. However, an exception to this rule may exist where the bank itself deals directly with the payee of the cashier’s check.”
      We agree from our research that such an exception does exist, as indicated by the authorities cited in our earlier opinion. We note also a similar holding in Wilmington Trust Co. v. Delaware Auto Sales, Del.Supr., 271 A.2d 41 (Del.1970).

      . The maneuverings of Schotte and his accomplices were too extensive and complicated to permit us to use the tunnel vision approach suggested by TPO. Its affidavit says that the cheeks were delivered at its offices in New York in exchange for the stock certificates. Curiously, the affidavit does not identify the individual who received the documents. A review of the record in United States v. Perry, 474 F.2d 1338 (3rd Cir. 1972), where this court affirmed the conviction of one of Schotte’s accomplices, demonstrates that at one stage the use of messengers, who were also employees of, or relatives of employees of TPO, combined, with prearranged meetings on the Garden State Parkway by the participants, were means used to carry out the scheme. Whether this type of operation prevailed in August of 1970 when the transactions involved here took place, remains to be developed.