author: TALBOT SMITH, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack Raymond SCOTT, Defendant-Appellant.
    Nos. 74-1580, 74-1581.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1974.
    Decided Feb. 19, 1975.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2403.

      Raymond Rosenberg, Des Moines, Iowa, for defendant-appellant.
    Alan H. Kirshen, Asst. U. S. Atty., Sioux City, Iowa, for plaintiff-appellee.
    Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

Jack Raymond Scott was convicted of participating in a series of bank robberies in small Iowa towns. He argues to us on appeal, in essence, that his trial was unfair. We find no prejudicial error and affirm the judgment of conviction.

The facts are extensive, involving robberies of banks at Breda, Ionia, Randall, and Swaledale, Iowa. Concerning specific issues raised, the facts will be examined in detail, but in general a similar pattern of operation emerged as to all the victim banks. The robberies were directed against smalltown institutions; each robbery took place in the pre-dawn hours of a Monday, and involved similar methods of forcing entry into the banks (pry bars) and into the safes (acetylene torches and “burning bars”). The banks robbed fall roughly into two groups, those at Breda and Ionia having taken place during the period from June to September, 1969, and those at Randall and Swaledale occurring in October and November, 1970.

The Randall and Swaledale robberies were the subject of the first indictment, containing six counts, brought against defendant Scott and others. For purposes of clarity this will hereafter be referred to as the Randall indictment.

With respect to this Randall indictment, the defendant moved for severance of defendants, and for a severance of the offenses and for a separate trial on Counts I, III, and Y from Counts II, IV, and VI. Such relief was sought under Fed.R. Crim.P. 14, authorizing the court to order separate trials on counts, to grant a severance of defendants, or to provide whatever relief justice requires.

Thereafter, and prior to the court’s ruling on the motion, a second indictment was returned (hereinafter the Conspiracy indictment). This indictment, in one count, charged a conspiracy among defendants Scott, Bachman and Weeks, together with another six named but unindicted persons “and others to the Grand Jury unknown,” to commit various crimes of bank robbery over a period of time from June 11, 1969 (the Breda robbery was on June 30) to November 12, 1970 (the Swaledale robbery was on November 2, 1970). This indictment included as overt acts the Randall and Swaledale robberies, which were the subject of the Randall indictment, as well as the earlier robberies of the banks in Breda, Irwin, and Ionia, Iowa.

Pursuant to Fed.R.Crim.P. 13, and without objection, the Conspiracy indictment was consolidated for purposes of trial with the Randall indictment, and it was agreed on the first day of trial that defendant’s motion for severance would apply as well to the Conspiracy indictment. Additionally, at the close of the government’s ease the defendant stated that he “would like to renew at this time the motions for severance of the defendants and the motion for the severance of the charges heretofore filed in this matter.” The motions were denied on the following day and, the defendants offering no evidence, the case went to the jury, resulting in the conviction of defendant Scott on all six counts of the Randall indictment and on the single count of the Conspiracy indictment. He was sentenced to 15 years on counts I, III and V and 15 years on counts II, IV and VI of the Randall indictment, and to 5 years on the Conspiracy indictment, all sentences to run concurrently with each other.

Defendant’s appeal raises no question as to his guilt or innocence. In fact, at the trial he made no effort to disprove the illegal acts encompassed within the various counts. What he complains of, rather, is the course of the trial. He asserts in particular that the conspiracy alleged in the Conspiracy indictment was not one overall conspiracy, as alleged, but two separate and distinct conspiracies joined together “for the purpose of evasion or avoidance of the evidentiary rules.” Had the alleged two conspiracies been separately charged, it is argued, “it would have raised both questions of misjoinder under Rule 8(a) and (b) and prejudicial joinder under Rule 14 which the trial court could have better determined from the beginning,” rather than after the proofs were in, at which time a trial court is “reluctant” to sever.

We find no merit in the asserted errors in the severance issue. The claim for severance under Fed.R.Crim.P. 8 clearly fails because of the commonality of the proofs involved, both as to offenses and defendants. Broad interpretation of Rule 8, having as its foundational precept the prompt and efficient administration of criminal trials, in no way “detracts from the rights of individuals to avoid prejudicial joinder.” Should it develop at any stage of the trial that prejudice appears from joinder, Fed.R.Crim.P. 14 authorizes the court to order separate trials of counts, grant a severance of defendants “or provide whatever other relief justice [may] require^].” The ruling of the trial court in this respect we overturn only for an abuse of discretion. Miller v. United States, supra, note 8, at 1293, and cases there cited. Here, even assuming that the defendant’s motion at the close of the government’s case raised the issue here presented and argued as to multiple conspiracies, a matter of substantial doubt, we find no abuse of discretion in the court’s rulings, nor do we find plain error under Fed.R.Crim.P. 52(b).

The defendant argues to us that his contention “is similar to the legal argument made” in Miller v. United States, supra note 8, at 1294, which he quotes as follows:

Appellants’ basic position is that the evidence shows as a matter of law the existence of separate conspiracies. They assert that “[t]he record indicates that there were in fact two separate and distinct conspiracies proved. One regarding the Camdenton, Missouri Post Office and the other regarding the alleged breakins and entries of post offices thereafter.” . From this premise they argue that the Camden-ton count was divorced from the others and should have been severed. Interwoven in the argument presented is the failure to sever the conspiracy count from the substantive counts. We disagree.

The prosecution of a continuing criminal enterprise raises questions of the utmost complexity with respect to the identification of the conspiracies involved, whether single or multiple. The problem is the more compelling because of the intertwining of Fed.R.Crim.P. 8, as to proper joinder, with Fed.R.Crim.P. 14, requiring a severance at times, and Fed.R.Crim.P. 52(a), dealing with substantial prejudice, particularly applicable to problems of alleged variance. The differentiation between the overall continuing conspiracy, with various parties entering and leaving the criminal association at various times, and separate conspiracies, with certain parties common to all, defies any easily applicable litmus. The “common pictorial distinction” between the “spoke conspiracy” and the “chain conspiracy” helpful in the simpler cases, tends to become blurred as the ends of the chains themselves may generate spokes, or the spokes themselves proliferate chains. Rather than pushing the pictorial distinction to extremes, the courts find it more useful, in arriving at a reasonable and just decision as to any particular conspiratorial issue, to consider a calculus: a) the possibility of subsequent prosecution for the same offense; b) the defendant’s possession of reasonably specific information as to the charges against him; and c) the “dangers of transference of guilt from one [defendant] to another across the line separating conspiracies.”

It is this latter consideration that disposes of the issue before us. Whether the facts present a single overall conspiracy, as the government claims, or two separate conspiracies, as defendant argues, is immaterial in this case and we do not reach decision thereon. The fact of the matter is that if, as defendant argues, there were in truth two conspiracies, defendant Scott was a participant in each. One conspiracy, defendant asserts, if any existed, was that involving the Breda and Ionia banks. Yet with respect to the Breda robbery, for example, there was ample evidence from which the jury could find Scott’s participation. An entirely separate conspiracy defendant argues, was that involving the Randall and Swaledale robberies. Yet here again defendant Scott was clearly one of the robbers in the Swaledale robbery, for example, according to the testimony of the unindicted co-conspirator McWilliams who described the operation in detail.

The difficulty and the danger faced in tlie multiple conspiracy cases, where the defendant is part of one conspiracy but not of another, is the likelihood of prejudice affecting substantial rights arising from a “prejudicial spillover effect” from one conspiracy to another. However, if the defendant is a member of both conspiracies the danger of prejudice from this source is minimal, if not nonexistent. We find no prejudice from this source on the facts before us.

Defendant urges error in the receipt of evidence. The government called to the stand one Reginald Wright, a prisoner at the State Penitentiary in Fort Madison, Iowa. He testified that he had known the defendant in the early part of 1972 and that defendant had told him that he (Scott) “was the best safe cutter in the country.” The statement was clearly an admission and so receivable. Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964); Segal v. United States, 246 F.2d 814, 818 (8th Cir. 1957), cert. denied, 355 U.S. 894, 78 S.Ct. 269, 2 L.Ed.2d 192 (1957).

In the cross-examination of the same witness he testified, in answering a question as to the felony for which he was incarcerated, that it was for “chemicals that I bought from Scott.” This is attacked on the ground that it is “evidence offered of other crimes, for the purpose of establishing a probability that the defendant committed the crime” charged. The testimony given does not reasonably support the argument made. The answer was not responsive to the question asked; the court promptly gave a cautionary instruction and ordered that the answer be stricken. Such passing reference, without hint of prosecutorial instigation or participation, was in our judgment immediately cured by the trial court, and did not constitute prejudicial error.

With respect to each of these incidents defendant moved for mistrials, which motions the court denied. The allowance of a mistrial is a matter for the trial court’s discretion. There is nothing in the circumstances or testimony relating to the rulings thus made to justify our finding the “clear and obvious abuse of a trial court’s discretion” which mandates reversal.

Defendant also complains of the testimony of Willard Martin, a named but unindicted co-conspirator. He had informed the government that he “was unwilling to testify against Mr. Scott and Mr. Bachman to the extent that if he were questioned about this * * * he would take the Fifth Amendment.” He was called upon the theory that his testimony concerning his date of coming to Iowa, and his residence and associates there, would corroborate that of other forthcoming witnesses, that his testimony would in particular corroborate that of witness McWilliams, another unindicted co-conspirator, and that his expertise in safecracking would tend to establish a modus operandi showing a common plan or scheme which encompassed the 1969 burglaries.

He was so questioned, counsel carefully skirting any possible Fifth Amendment claim. He testified as to his extensive criminal record, involving robbery, kidnapping, and the attempted murder of a policeman, together with other felonies, that he knew defendant Scott, that he settled in Iowa with Scott’s help, that he knew and lived with the Powers, and testified in detail concerning the opening of safes, the use of acetylene torches and “burning bars,” exemplifying his verbal descriptions by reference to pictures previously introduced into evidence of the burgled safes involved in the case.

Counsel for defendant briefly cross-examined and then, wisely we think, refused to proceed further. He moved for a mistrial asserting that he was being compelled to “watch a person named as participant in these crimes appear and not be permitted or not be able to interrogate him.” He argued, with respect to cross-examination by him: “If I proceed to interrogate this witness, if he takes the Fifth Amendment on me, I am damned because he is a co-conspirator” and, also, that “if he proceeds to testify in some fashion, I do not know what type of statements are lurking around here * * *, and I am presented with the problem and [sic] defense of my client that I should not be presented with in all conscience and all good faith.”

This, obviously, is not the usual Fifth Amendment controversy regarding the effect of the assertion of the claim of privilege upon the conduct of the trial, or the use sought to be made by the prosecutor of adverse inferences from refusal to testify, or, indeed, an attempt by the government “to build its case out of inferences arising from use of the testimonial privilege.” Here the Fifth was never invoked; yet the witness was, because of the Fifth, for all practical purposes immune from cross-examination. The procedure does not commend itself to us, particularly in view of the nonessential nature of his testimony. The right of a defendant to be confronted with a witness against him includes the right to cross-examine such witness. Yet here such right was effectively foreclosed. The individual rules of evidence leading to the result are in themselves unassailable. Thus it is the part of wisdom to disclose a witness’ record, if he has one, before the other side itself compels such disclosure. Yet a combination of individually unassailable “rules” may in their totality result in a trial situation unacceptable to our system of justice, here the preclusion of searching cross-examination of an alleged participant in the robberies.

The Fifth Amendment cases lend themselves to no a priori rule. Each case must be judged on its own facts. We weigh the obligation and the duty of a citizen to testify in court, “a vital and necessary part of our adversary trial system,” against his constitutional rights and privileges, all viewed within the context of the fair and impartial trial. It would have been preferable, under the circumstances we have outlined, had the witness not been called or his testimony stricken. We are not, however, persuaded that the admission of his testimony is a ground for reversal. In view of the overwhelming evidence against defendant it is properly viewed as “no more than [a] minor lapse[s] through a long trial,” not affecting the substantial rights of the defendant.

We affirm.

      . In brief summary it charged violations of 18 U.S.C. § 2113, Bank robbery and incidental crimes, specifically as follows: Counts I, III, and V, charged the defendant Jack Raymond Scott, Dwight Morgan Bachman, and Robert Weeks, as defendants with crimes involving the Randall State Bank, Randall, Iowa, on October 19, 1970, as follows:
      Count I — Violation of 18 U.S.C. §§ 2 and 2113(a) (entering with intent to commit a felony);
      Count III — Violation of 18 U.S.C. §§ 2 and 2113(b) (carrying away with intent to steal);
      Count V — Violation of 18 U.S.C. §§ 2 and 2113(c) (possession and concealing).
      Counts II, IV and VI charged the defendant, Jack Raymond Scott, and Dwight Morgan Bachman, only, as defendants, with the crimes involving the Swaledale office of First State Bank of Thornton, Iowa, on November 2, 1970, as follows:
      Count II — Violation of 18 U.S.C. §§ 2 and 2113(a) (entering with intent to commit a felony);
      Count IV — Violation of 18 U.S.C. §§ 2 and 2113(b) (carrying away with intent to steal);
      Count VI — Violation of 18 U.S.C. §§ 2 and 2113(c) (possession and concealing).

      . See note 1, supra. The severance motion was summarized by the District Court in the following terms:
      Defendants are charged in a six-count indictment with various crimes of bank robbery in October and November of 1970, in violation of 18 U.S.C. §§ 2, 2113.

        Severance of Defendants and Offenses

      Each defendant has moved for a severance from the other defendants charged, contending that: (1) some defendants have prior felony convictions; (2) some defendants may testify and some may not and their defenses may be inconsistent; (3) the government’s proof may include evidence of statements or admissions of a defendant admissible against such defendant but not against the other defendants; and (4) the other defendants would appear and testify to matters exculpatory and explanatory to a defendant’s defense if the defendants were tried separately.
      Each defendant also seeks severances of Counts I, III and V from Counts II, IV and VI contending that: (1) they involve separate and distinct offenses provable by different evidence; (2) joinder may allow the jury to accumulate evidence; and (3) a defendant may desire to testify as to some of the offenses charged and not as to others.

      . Overt acts charged included the meetings of the alleged conspirators, their surveillance of potential victim banks, their acquisitions of paraphernalia, their utilization of motor vehicles, and other acts relating to the accomplishment of the alleged conspiratorial objectives. Overt acts 5 through 9 inclusive, involved charges of entering certain banks with intent to commit larceny, as follows:
      5. June 30, 1969, Breda Savings Bank, Breda, Iowa;
      6. July 30, 1969, Farmers Savings Bank, Irwin, Iowa;
      7. September 1, 1969, First Security Bank and Trust Company, Ionia, Iowa;
      8. October 19, 1970, Randall State Bank, Randall, Iowa;
      9. November 2, 1970, First State Bank of Thornton, Swaledale, Iowa.
      No proof was adduced at trial concerning the Irwin robbery.

      . MR. ROSENBERG [counsel for defendant]: Your Honor, we wanted to clear up one thing, or two things. First on the matter of severance. The second indictment was returned sometime prior to the Court’s ruling on the matter of severance which I understand you reserved ruling on and we wanted the record to indicate that we desire to sever, or the motion for severance applied to the second indictment as well as to the various counts of the first. We haven’t filed any formal motion.
      THE COURT: They are considered as applying to the two indictments as consolidated.
      MR. ROSENBERG: So we would like to have our motion for severance to apply to that for the same reason and on the same grounds previously urged to the severance of the two groups of counts in the first indictment.

      . Co-defendant Weeks was acquitted on all counts, and co-defendant Bachman pled guilty to two counts before the case went to the jury.

      . We find no occasion upon the facts before us for employment of the concurrent sentence doctrine. United States v. Irby, 480 F.2d 1101, 1102 (8th Cir. 1973).

      . Fed.R.Crim.P. 8 provides:
      Joinder of Offenses and of Defendants
      (a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or- similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
      (b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

      . Miller v. United States, 410 F.2d 1290, 1293 (8th Cir.), cert. denied, 396 U.S. 830, 90 S.Ct. 81, 24 L.Ed.2d 9 (1969), quoting Lay, J. in Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967).

      . Fed.R.Crim.P. 14 provides:
      Relief from Prejudicial Joinder
      If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

      . Note 4 supra.

      . We note also that the court’s charge repeatedly employed without objection the expression “the conspiracy charged,” e. g., “If the jury should find beyond a reasonable doubt from the evidence in the case that existence of the conspiracy charged in the indictment has been proved and that during the existence of the conspiracy * * * (Emphasis added.) No issue is raised before us as to this or similar instructions.

      . Helpful discussion may be found in Developments in the Law, Criminal Conspiracy, 72 Harv.L.Rev. 920, 922-35, 991-93 (1959); Note, Federal Treatment of Multiple Conspiracies, 57 Colum.L.Rev. 387 (1957); 65 Nw.U.L.Rev. 134 (1970).

      . Friendly, J., in United States v. Borelli, 336 F.2d 376, 383 (2nd Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965).

      . Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

      . United States v. Cirillo, 468 F.2d 1233, 1238 (2nd Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973).

      . Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1934).

      . Id.

      . Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946).

      . With regard to the robbery at the Breda bank of June 30, 1969, one of the banks in the Breda-Ionia group which defendant characterizes as comprising a separate and earlier conspiracy, testimony of a merchant disclosed that an oxygen tank, serial No. R-32791, an acetylene regulator, and an acetylene cylinder had been purchased from him by two men, one of whom was defendant Scott, who also returned with a companion at a later date in June, 1969, and purchased welding goggles and a pair of Racine Blue Devil 711 welding gloves. Among the physical evidence left behind at the time of the Breda robbery was oxygen tank No. R-32791, a pair of Racine Blue Devil 711 welding gloves, and an acetylene regulator of the same model earlier sold to Scott.

      . The Swaledale bank robbery, which defendant asserts was a part of a second and independent conspiracy, was perpetrated by defendants Scott and Bachman and by Willard Martin and Thomas McWilliams, the latter of whom turned state’s evidence. Martin and Scott did the detailed planning, going to a small town and employing the same time of week and safe cutting techniques as in the other of the series. The use of a white Ford Maverick in the robbery, as described by McWilliams, was corroborated by other testimony linking defendant Scott therewith. The passage of a truck nearby, described by McWilliams as causing a suspension of operations, was corroborated by the truck driver. Blank money orders from the bank were removed to Scott’s possession and were later forged and cashed, some in Equador.

      . Haggard v. United States, 369 F.2d 968, 975 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967).

      . See United States v. Wilson, 497 F.2d 602, 605 (8th Cir. 1974); United States v. Benjamin, 328 F.2d 854, 864 (2nd Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964); Ritter v. United States, 230 F.2d 324, 329 (10th Cir. 1956); Quirk v. United States, 161 F.2d 138, 142 (8th Cir. 1947); Canella v. United States, 157 F.2d 470, 478-79 (9th Cir. 1946).

      . See also 6 J. Wigmore, Evidence § 1732, at 99 (3rd ed. 1940): “any and every statement of an accused person, so far as not excluded by the doctrine of confessions * * * or by the privilege against self-incrimination * * * is usable against him as an admission * * *,” quoted in United States v. Rouse, 452 F.2d 311, 313 (5th Cir. 1971); 2 C. Wright, Federal Practice and Procedure § 413, at 148 (1969); Federal Rules of Evidence 801(d)(2), Jan. 2, 1975, Pub.L. No. 93-595, 88 Stat. 1938-1939.

      . See United States v. Gocke, 507 F.2d 820 (8th Cir. 1974); United States v. Carter, 448 F.2d 1245 (8th Cir. 1971), cert. denied, 405 U.S. 929, 92 S.Ct. 981, 30 L.Ed.2d 802 (1972); United States v. Christian, 427 F.2d 1299, 1301-04 (8th Cir.), cert. denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148 (1970); Evenson v. United States, 316 F.2d 94-96 (8th Cir. 1963); Reistroffer v. United States, 258 F.2d 379, 393 (8th Cir. 1958), cert. denied, 358 U.S. 927, 79 S.Ct. 313, 3 L.Ed.2d 301 (1959).

      . Frohmann v. United States, 380 F.2d 832, 835 (8th Cir. 1967); Evenson v. United States, 316 F.2d 94, 95-96 (8th Cir. 1963).

      . Schaefer v. United States, 265 F.2d 750, 753 (8th Cir.), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959).

      . Mark Powers became acquainted with defendant Scott in Des Moines. When he (Powers) moved to Carroll, Iowa, he met Martin who, with his family, lived for a time in the Powers’ home. Martin introduced McWilliams to Powers as his son. It was in the basement of the Powers’ home that large quantities of coins were counted on October 20th, some being given to Powers. Scott told him that they “took off a bank.”

      . Namet v. United States, 373 U.S. 179, 186, 83 S.Ct. 1151, 1154, 10 L.Ed.2d 278 (1963). The leading cases in the area may be found in United States v. King, 461 F.2d 53, 57 (8th Cir. 1972).

      . We note that the prosecution’s next witness, a repairman who had worked on the vaults and safes in question, had ample expertise to establish the modus operandi. Indeed, much of his testimony was cut short by the court as repetitive of Martin’s.

      . Pointer v. Texas, 380 U.S. 400, 404 — 05, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . United States v. Brickey, 426 F.2d 680, 688 (8th Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970).

      . Id.


source: Caselaw Access Project

author: STEVENS, Circuit Judge.

license: Public Domain

text:
    John W. CARSON and Joanna Holland, Plaintiffs-Appellants, v. ALLIED NEWS CO., an Illinois Corporation, et al., Defendants-Appellees.
    No. 74-1258.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 20, 1975.
    Decided Feb. 28, 1975.

      Paul M. Levy, Terry L. Engel and Earl A. Deutsch, Chicago, 111., for plain tiff s-appellants.
    Burton Joseph, Jack Joseph, Chicago, 111., for defendants-appellees.
    Before FAIRCHILD, Chief Judge, STEVENS, Circuit Judge, and MAR-KEY, Chief Judge.

       Chief Judge Howard T. Markey of the United States Court of Customs and Patent Appeals is sitting by designation.

   STEVENS, Circuit Judge.

In their original complaint for libel, plaintiffs alleged that they were New York “residents”; in their amended complaint they alleged that they were California “residents.” Among the eight defendants are two distributors allegedly citizens, respectively, of New York and California. Presumably, though the pleadings are silent on the point, plaintiffs intended to invoke federal jurisdiction under 28 U.S.C. § 1332(a)(1). The absence of complete diversity was apparently unnoticed in the district court, where a summary judgment on the merits was entered for defendants. After we called the parties’ attention to the jurisdictional defect, both urged us to decide the merits and to dismiss the non-diverse defendants. The question is whether we have such power and, if. so, whether this is an appropriate case for its exercise.

At best, our power is extremely doubtful. In a comparable situation in 1942, we held that we must “deal with the record as we find it” and “are powerless” to do anything other than to recognize the jurisdictional defect and remit the case to the district court. Alderman v. Elgin, Joliet & Eastern Ry., 125 F.2d 971, 973. Specifically, we held that we could not allow the plaintiff to amend his pleading by striking dispensable parties in order “to bring the case within federal jurisdiction.” Ibid.

Logically, it might be argued that if the district court has the power to create jurisdiction retroactively by dismissing a nondiverse defendant, see Kerr v. Compagnie De Ultramar, 250 F.2d 860, 862— 864 (2d Cir. 1958), we should have like authority. Since the ability of the district court to perfect its jurisdiction in this manner may rest either on its inherent powers or on a liberal construction of Rule 15(a) of the Federal Rules of Civil Procedure, see Kerr, supra, at 864, it is conceivable that 28 U.S.C. § 1653, which was enacted subsequent to our Alderman decision, might be read to give us such jurisdiction.

Even assuming that the jurisdictional argument is tenable, notwithstanding the unbroken line of authority to the contrary, we are satisfied that this is not an appropriate case in which the appellate court should dismiss a non-diverse party. There is some ambiguity as to whether both the New York and the California distributors, or just one of the two, should be dismissed. Moreover, though plaintiffs have alleged the principal places of business of the other defendants, they have not alleged such defendants’ places of incorporation, and, therefore, the allegations of citizenship are insufficient. 28 U.S.C. § 1332(c). Finally, if the case is remanded to the district court, and the pleadings are re-framed there, the district judge will have an opportunity to reexamine the merits in the light of an arguably relevant and important intervening decision of the United States Supreme Court. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Accordingly, the judgment of the district court is vacated. On remand, the district court should allow amendments to cure the jurisdictional defects noted and, in the absence of such amendments, shall dismiss the case without prejudice. See Alderman, supra, 125 F.2d at 973.

Vacated.

      . In paragraph 5 of Count III of their complaint, plaintiffs alleged that “defendant, Metropolitan News Co., is a corporation, and maintained and does maintain its principal place of business in the City of New York and State of New York.” In paragraph 6 they alleged that “defendant, Sunset News Co., is a corporation, and maintained and does maintain its principal place of business in the City of Los Angeles, County of Los Angeles and State of California.” See 28 U.S.C. § 1332(c).

      . We requested the parties to file supplemental memoranda discussing the jurisdictional problem. Neither party made any formal motion to amend the pleadings or to dismiss any of the defendants. In their memorandum, plaintiffs requested us to consider the appeal on its merits
      “and in the event that it determines such appeal to be meritorious as to the real and substantive parties defendant, then and in that case it may shape its remand order so that the motion to dismiss the unnecessary party defendant which destroyed the diversity may be made to the District Court prior to any further proceedings that may be appropriate in such court.
      Alternatively, plaintiffs-appellants urge us simply to ignore the nondiverse defendant(s)’ citizenship, arguing that they are merely “nominal,” “unnecessary” or “formal” parties within the meaning of Wormley v. Wormley, 21 U.S. (8 Wheat.) 421, 5 L.Ed. 651; Roth v. Davis, 231 F.2d 681, 683 (9th Cir. 1956); Hann v. City of Clinton, 131 F.2d 978, 981 (10th Cir. 1942); and the cases cited therein. It is clear, however, that these distributors are not “formal” or “unnecessary” parties within the meaning of these decisions; plaintiffs sought to recover $1 million in damages from each. While their presence in the suit is “unnecessary” in terms of recovering from National Insider, Inc., and from the other diverse distributors, we cannot ignore the absence of complete diversity created by their joinder in this cause of action. See Schuckman v. Rubenstein, 164 F.2d 952, 956 (6th Cir. 1947), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151.
      Defendants requested us to reach the merits by dismissing the nondiverse distributor or distributors.

      . See also Wells v. Universal Pictures Co., 166 F.2d 690, 692 (2d Cir. 1948); Schuckman v. Rubenstein, 164 F.2d 952, 956 (6th Cir. 1947), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 121 F.2d 561, 563 (8th Cir. 1941); Levering & Garrigues Co. v. Morrin, 61 F.2d 115, 121 (2d Cir. 1932), affd on other grounds, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062.

      . 28 U.S.C. § 1653 provides:
      “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”
      Since it is settled that this statute permits an amendment to correct a jurisdictional allegation which was defective because it described the residence rather than the citizenship of a party, see Burnstein v. Columbia Broadcasting System, Inc., 291 F.2d 8, 9-10 (7th Cir. 1961), and since the rule forbidding the appellate court to allow an amendment to correct a defective jurisdictional allegation was developed in precisely that type of case, see Denny v. Pironi, 141 U.S. 121, 123-124, 11 S.Ct. 966, 35 L.Ed. 657; Continental Life Insurance Company v. Rhoads, 119 U.S. 237, 240, 7 S.Ct. 193, 30 L.Ed. 380; Morgan’s Executor v. Gay, 86 U.S. (19 Wall.) 81, 83, 22 L.Ed. 100, it is arguable that the statute has removed the predicate for our decision in Alderman, supra. On the other hand, the predecessor to § 1653, 28 U.S.C. § 399 (1940), provided, in relevant part:
      “Where, in any suit brought in . any district of the United States, the jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought . though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose, so as to show on the record such diverse citizenship and jurisdiction, and thereupon such suit shall be proceeded with the same as though the diverse citizenship had been fully and correctly pleaded at the inception of the suit . ..” (Emphasis added).
      On two occasions, the courts construed § 399 not to permit amendments in the court of appeals striking nondiverse parties. International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., supra, 121 F.2d at 563; Levering & Garrigues Co. v. Morrin, supra, 61 F.2d at 121.
      When § 399 was revised and recodified as § 1653 in 1948, the legislative history indicates that the “[s]ection was extended to permit amendment of all jurisdictional allegations instead of merely allegations of diversity of citizenship as provided by section 399 of title 28, U.S.C., 1940 ed.” H.R.Rep.No.308, 80th Cong., 1st Sess. A145 (1947). We need not in this case decide whether an amendment striking a nondiverse party is an amendment of a “jurisdictional allegation” within the meaning of § 1653.


author: JOHN W. PECK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Herman FRANKS, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Max BRITTON, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Boyce MITCHELL, Defendant-Appellant.
    Nos. 73-2157 to 73-2160 and 74-1138.
    United States Court of Appeals, Sixth Circuit.
    Feb. 12, 1975.
    Certiorari Denied June 23, 1975.
    See 95 S.Ct. 2654, 2656, 2667.

      Robert W. Andrews, Erich W. Merrill, Malone & Merrill, Albert Harvey, Boyce Mitchell, Howard T. Paul, Thomas A. Buford, Memphis, Tenn., for defendants-appellants.
    Thomas F. Turley, U. S. Atty., Larry E. Parrish, Memphis, Tenn., for plaintiffappellee.
    Before PECK, LIVELY and ENGEL, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

Defendants-appellants Franks and Britton were convicted, after a sixteen-day (16-day) jury trial in district court, of causing others on or about June 2, 1971, to commit physical violence to Jett Hair Care Center (“Jett Hair”) and TriState Beauty Supply (“Tri-State”), two Memphis, Tennessee, businesses whose operation affected commerce, in furtherance of a plan and purpose to obstruct commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (1970), and of 18 U.S.C. § 2 (1970). Franks and Britton also were convicted of aiding and abetting the malicious damaging and attempt to destroy on or about June 2, 1971, by means of an explosive, Jett Hair and Tri-State in violation of 18 U.S.C. § 844(i) (1970) and of 18 U.S.C. § 2 (1970). Defendant-appellant Mitchell, tried together with Franks and Britton, was convicted of knowingly causing on or about June 1, 1971, certain explosives (blasting caps) to be transported in interstate commerce without being licensed to do so in violation of 18 U.S.C. § 842(a)(3)(A) (1970).

Together, appellants have asserted no fewer than twenty-five claims on appeal. We have found, however, no reversible error.

Franks, Britton and Mitchell claim that they were misjoined in the indictments and that, in any event, the district judge should have granted their pre-trial motions for separate trials. Franks and Britton add that the district court erred in consolidating the purported Hobbs Act violation, charged in a separate indictment, with the indictment charging them and Mitchell with explosives violations. Counts 1 and 2 of Indictment 72— 48 charged Franks and Britton with aiding and abetting, on or about June 2, 1971, the malicious damaging and attempt to destroy by explosives Jett Hair and Tri-State. Count 3 of Indictment 72 — 48 charged Mitchell with causing on or about June 1, 1971, the interstate transportation of blasting caps from Mississippi to Tennessee. Indictment 72-49 charged Franks and Britton with, on or about June 2, 1971, causing others to commit physical violence to Jett Hair and Tri-State in violation of the Hobbs Act.

Because more than one defendant is involved, Federal Rule of Criminal Procedure 8(b) governs the permissibility of joinder. United States v. Bova, 493 F.2d 33, 35 (5th Cir. 1974); Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 992 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967). Rule 8(b) permits the joining in an indictment of defendants “alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Of course, Rule 8(b) can, and should, be “broadly construed in favor of initial joinder,” because of the protection Rule 14 affords against unnecessarily prejudicial joinder. United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. Friedman, 445 F.2d 1076, 1082-1083 (9th Cir.), cert. denied sub nom., Jacobs v. United States, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971); Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967). As other courts have recognized,

“In determining whether offenses are based on ‘acts or transactions connected together,’ the predominant consideration is whether joinder would serve the goals of trial economy and convenience; the primary purpose of this kind of joinder is to insure that a given transaction need only be proved once.” Baker v. United States, 131 U.S.App.D.C. . 7, 401 F.2d 958, 971 (1968).

Accord, Cataneo v. United States, 167 F.2d 820, 823 (4th Cir. 1948).

Had Indictment 72 — 48 explicitly alleged that the blasting caps which Mitchell allegedly caused to be transported were intended to be used, or even used, in the Memphis explosions, it could hardly be urged that they were not the “same transactions.” See United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310, 21 L.Ed.2d 279 (1968) (joinder of defendant charged with receiving and concealing stolen government bonds with defendants charged with “some aspects of the theft, transportation or sale of the bonds”); United States v. Bryant, 490 F.2d 1372 (5th Cir.), cert. denied sub nom., Impson v. United States, 419 U.S. 832, 95 S.Ct. 57, 42 L.Ed.2d 58 (1974) (joinder of defendant charged with transporting and receiving stolen automobile with defendant charged with receiving such automobile); Kitchell v. United States, 354 F.2d 715 (1st Cir.), cert. denied, 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032 (1966) (joinder of defendants charged with transporting stolen cigarettes with defendant charged with receipt of such cigarettes); Caringella v. United States, 78 F.2d 563 (7th Cir. 1935) (joinder of defendants charged with theft with defendant charged with receiving and possessing stolen goods). Though explicitly alleging the connection

is preferred practice, Orfield, Joinder in Federal Criminal Procedure, 26 F.R.D. 23, 72 — 73 (1960), the lack of such an allegation is immaterial where, as here, a connection sufficient for proper joinder is implicit. See United States v. Bally Mfg. Co., 345 F.Supp. 410, 430 (E.D.La. 1972) (finding “participat[ion] in a series of acts” from “a fair reading” of the indictment); United States v. Florio, 315 F.Supp. 795, 797 (E.D.N.Y.1970) (“participation” found “in light of” allegations); United States v. Welsh, 15 F.R.D. 189, 190 (D.D.C.1954) (indictment “deemed” or “construed” as alleging “same series of acts or transactions”). See also United States v. Lugo, 269 F.Supp. 757 (E.D. Wis.1967) (indictment “not susceptible to a reasonable construction” of connected transaction). The alleged interstate transportation predated the explosions by one day, and the alleged transportation was to Tennessee where the explosions occurred. Even if the absence of such explicit allegation invalidated the joinder, the later development of a “connection” sufficient for Rule 8(b) would permit the district court to consolidate separate indictments, and presumably separated counts, for trial. See King v. United States, 355 F.2d 700, 703 (1st Cir. 1966); Griffin v. United States, 272 F.2d 801 (5th Cir. 1959), modified, 273 F.2d 958 (5th Cir. 1960); United States v. Florio, 315 F.Supp. 795, 797 (E.D.N.Y. 1970); United States v. Havrick, 153 F.Supp. 696, 698 (D.N.D.1957).

If Counts 1, 2 and 3 were properly joined in Indictment 72 — 48, then the charges contained in Indictment 72-49, stemming from the same explosions as the charges contained in Counts 1 and 2 of Indictment 72 — 48, were properly tried together with the charges contained in Indictment 72 — 48 because they, being virtually identical to the charges of Counts 1 and 2 of Indictment 72 — 48, “could have been joined in a single indictment” with the charges of Indictment 72 — 48. Fed.R.Crim.P. 13.

Even if Franks, Britton and Mitchell were joined contrary to Rule 8(b), such misjoinder most likely would be harmless error because evidence of the explosions would be admissible against Mitchell in establishing his knowledge that the transportation of the blasting caps would be interstate and because evidence of the interstate transportation of the blasting caps would be admissible against Franks and Britton in establishing the plan or scheme of the bombings. United States v. Weiss, 491 F.2d 460, 466-467 (2d Cir.), cert. denied, - U.S. -, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974); United States v. Roselli, 432 F.2d 879, 901 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); Baker v. United States, 401 F.2d 958, 972-973 (D.C.Cir. 1968).

Even assuming that the charges of the indictments were properly joined and that the indictments otherwise would be properly consolidated for trial, Rule 14 still authorizes a separate trial to avoid the undue prejudice of a joint trial. A district court’s denial of a severance, however, is reversible only for an abuse of discretion. United States v. Demetre, 461 F.2d 971 (6th Cir. 1972); United States v. Martinez, 428 F.2d 86 (6th Cir.), cert. denied, 400 U.S. 881, 91 S.Ct. 125, 27 L.Ed.2d 119 (1970), 402 U.S. 951 (1971); United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310 (1968).

Franks and Britton primarily claim undue prejudice in that the government was allowed to attempt to prove that Mitchell conspired to kill a government witness. We find, however, no prejudice in that a jury could be expected to segregate such evidence and apply it only to Mitchell. United States v. Bell, 457 F.2d 1231, 1240 (5th Cir. 1972). See United States v. Gimelstob, 475 F.2d 157, 160 (3rd Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 62 (1973); In re Gottesman, 332 F.2d 975 (2d Cir. 1964).

Mitchell’s claim of prejudice in a joint trial is somewhat more substantial. He claims that because the statute he was convicted of is rather simple, requiring only that he (1) knowingly, (2) transported or caused to be transported explosive devices in interstate commerce, (3) without being licensed to do so, evidence that the blasting caps were used in illegal bombings and evidence of labor violence in Memphis was irrelevant to his charge and, hence, unnecessarily prejudicial. Though Mitchell’s claim presents serious issues, we decline to hold that the district court abused its discretion in refusing to grant Mitchell a separate trial because much of the evidence concerning the bombings and labor violence would be admissible, in any event, in a separate trial of Mitchell as tending to prove scienter. See Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847, 854-860 (1972); Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283, 1288 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969). See generally Manning v. Rose, 507 F.2d 889 (6th Cir. 1974). That Franks and Britton were more culpable than Mitchell, of course, does not require that Mitchell be tried separately. See United States v. Demetre, 461 F.2d 971, 974 (6th Cir. 1972); United States v. Vida, 370 F.2d 759, 765 (6th Cir. 1966), cert. denied, 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630 (1967).

Franks, Britton and Mitchell also argue that the district judge erred in admitting certain tape recordings of their conversations with certain government informants because the judicially unauthorized taping of such face-to-face and telephonic conversations violated either the Fourth Amendment or 18 U.S.C. § 2510 et seq. (1970). The informants’ consent to having such conversations recorded would shield those recordings from constitutional, United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), Stephen v. United States, 496 F.2d 527 (6th Cir. 1974), United States v. Black, 472 F.2d 130 (6th Cir. 1972), cert. denied, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691 (1973), United States v. Martinez, 428 F.2d 86, 88 (6th Cir.), cert. denied, 400 U.S. 881, 91 S.Ct. 125, 27 L.Ed.2d 119 (1970), 402 U.S. 951, 91 S.Ct. 1630, 29 L.Ed.2d 122 (1971), and statutory, 18 U.S.C. § 2511(c) (1970), United States v. Johnson, 484 F.2d 165, 168 (9th Cir.), cert. denied, 414 U.S. 1112, 94 S.Ct. 842, 38 L.Ed.2d 739 (1973), United States v. Puchi, 441 F.2d 697 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971), Bakes v. United States, 350 F.Supp. 547 (N.D.Ill.1972), aff’d, 478 F.2d 1405 (7th Cir. 1973), United States v. Riccobene, 320 F.Supp. 196, 203 (E.D.Pa.1970), aff’d, 451 F.2d 586 (3rd Cir. 1971), attack. Mitchell, however, attacks the validity of informant Davis’ consent, arguing that:

“Davis had a long criminal record and had numerous charges pending against him. The Government placed him under full protective custody, gave him an extremely nice apartment for he [sic] and his girlfriend, provided him with a living allowance, secured for his use a new Cadillac automobile and gave him other special considerations. Additionally, Davis was never tried for or sentenced for any of the crimes of which he was charged prior to his agreement to cooperate with the government.” Mitchell’s Brief at 31.

We find, however, sufficient consent to shield the government recordings. See United States v. Dowdy, 479 F.2d 213, 229 (4th Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973) (pressure of potential indictment and promise of immunity insufficient to vitiate consent); United States v. Silva, 449 F.2d 145 (1st Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 942, 30 L.Ed.2d 787 (1972) (promise of suspended sentence in reference to pending indictment insufficient); Black v. United States, 341 F.2d 583 (9th Cir.), cert. denied, 382 U.S. 854, 86 S.Ct. 105, 15 L.Ed.2d 92 (1965) (“special employee” status of and promise to arrestee to make his. co-operation “known” to prosecutor’s office insufficient).

Franks and Britton claim their Hobbs Act convictions should be reversed because the government neither alleged nor proved extortion. The government counters that it need neither allege nor prove extortion if it alleges and proves physical violence affecting commerce. We can accept in to to neither interpretation of the Hobbs Act. The Hobbs Act, by the plainest of language, proscribes “physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.” The statute makes clear that a plan or purpose “in violation of this section” includes a plan or purpose of “obstructpng], delaypng], or affectpng], commerce ... by robbery or extortion . . . .” Thus, if one commits physical violence affecting commerce in furtherance of a plan of ob- , structing, delaying or affecting commerce “by robbery or extortion,” he has violated the Hobbs Act. We reject the interpretation urged by Franks and Brit-ton, an interpretation which would require extortion. We construe the statute as reaching physical violence designed to culminate in extortion, even if the scheme aborts prior to extortion. Likewise, we cannot accept the government’s view that the statute proscribes all physical violence obstructing, delaying, or affecting commerce. The statute’s language and legislative history require that the violence be in furtherance of a plan or purpose to obstruct, delay, or affect commerce by extortion or robbery.

In applying the adopted interpretation, we find sufficient evidence underlying the jury finding that Franks and Britton violated the statute. Particularly in light of the Hobbs Act’s legislative history, violence designed to coerce a businessman into changing his establishments from non-union to union is certainly violence designed to extort. Moreover, the indictment was hardly prejudicial or insufficient in that it alleged physical violence “in violation of Title 18, United States Code, § 844(i),” which, from a plain reading of the statute, would mean physical violence in furtherance of a plan or purpose of obstructing, delaying, or affecting commerce by robbery or extortion.

Britton complains that the district judge erred in refusing eighteen requested jury instructions and in losing those requests. Fortunately, Britton and the government were able to reconstruct sixteen of the requests. Of those sixteen, twelve were substantially covered, implicitly or explicitly, in the instructions given the jury; and four were inapplicable to the evidence. Although we can neither comprehend nor condone the loss of the requested instructions, it does not appear that such loss prejudiced Britton’s substantial rights. The district judge’s instructions fairly posed the jury issues, only two requested instructions remain missing, and Britton has made no claim that those missing requests differ substantially from the other sixteen which the district judge properly denied. We are unwilling to reverse in such circumstances. Compare United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972) (unexplained loss of one witness’ grand jury testimony needed for Jencks Act compliance).

Mitchell and Britton claim that the court order compelling them to give voice exemplars violated their constitutional right against unreasonable searches and seizures and their constitutional privilege against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), established that compelling voiceprints even of the same words used in the crime does not violate the constitutional privilege against self-incrimination. Accord, United States v. Rogers, 475 F.2d 821, 825-826 (7th Cir. 1973). Moreover, compelling a voiceprint is neither a “search” nor a “seizure.” Dionisio, 410 U.S. at 14-15, 93 S.Ct. 764. We reject Mitchell’s attempt to limit Dionisio to the grand jury context in that, so long as the underlying seizure of the person is proper, requiring that person to submit voice exemplars violates no constitutional right. See United States v. Rogers, 475 F.2d 821 (7th Cir. 1973) (court-ordered submission); United States v. Sanders, 477 F.2d 112 (5th Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 88, 38 L.Ed.2d 88 (1973) (legally in custody on another matter). We also reject Mitchell’s claim that the order requiring the voice exemplars, almost seven months subsequent to his arrest, came too late. See United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974) (compulsion of handwriting exemplar less than one week pri- or to scheduled beginning of trial).

Britton and Mitchell also complain that voiceprint (“spectographic”) analysis is too inaccurate to be admitted into evidence. Though the only circuit ruling on the admissibility of voiceprints has found them inadmissible, United States v. Addison, 498 F.2d 741 (D.C.Cir. 1974), aff’g 337 F.Supp. 641 (D.D.C.1972), other courts are somewhat divided over, but the trend favors, the admissibility of voiceprints. Although we, of course, are aware of the differences of judicial and scientific opinion concerning the use of voiceprints, we also are mindful of “a considerable area of discretion on the part of the trial judge in admitting or refusing to admit” evidence based on scientific processes. United States v. Stifel, 433 F.2d 431, 437 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971).

“[Njeither newness nor lack of absolute certainty in a test suffices to render it inadmissible in court. Every useful new development must have its first day in court. And court records are full of the conflicting opinions of doctors, engineers and accountants . . . .” 433 F.2d at 438.

Moreover, Stifel recognized that those opposing the admissibility of scientific tests can direct their criticisms toward the weight of such evidence. Applying Stifel, which admitted expert testimony concerning neutron activation analysis, we find that the district court was within its discretion in admitting voiceprint analysis. The diátriet court qualified the expert voiceprint witness only after an extensive 25-page inquiry into his qualifications and the reliability of the scientific process; defense counsel were permitted to cross-examine the witness concerning his purported role as an advocate of the process and some other courts’ refusals to admit voiceprint evidence. Moreover, neither Britton nor Mitchell produced a witness rebutting the government’s claim that voiceprint analysis is sufficiently accurate to be admissible.

We also reject Britton’s claim that the expert improperly testified to what he heard on the tapes as well as to identifying voices. After all, the district judge cautioned that “it [was] for the jury to weigh the expert’s testimony [as to what was said].” Trial Transcript at 109. Moreover, the jury listened to the tapes. Even transcripts of taped conversations have been admitted. See Fountain v. United States, 384 F.2d 624 (5th Cir. 1967), cert. denied sub nom., Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968); see also United States v. Desist, 384 F.2d 889, 899 (2d Cir. 1967), aff’d, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).

Franks claims that the district judge erred in admitting into evidence certain admittedly falsified documents implicating him in the bombings in question and in another bombing. We find, however, no prejudicial error in that the trial judge twice cautioned the jury that such documents were not being offered for their truth and were written to protect the government’s informant. Of course, the knowing use of false evidence if uncorrected violates due process. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 293, 3 L.Ed.2d 1217 (1959). But juries are expected to follow their instructions. Spencer v. Texas, 385 U.S, 554, 562, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Even where false evidence has been “corrected” by subsequent defense cross-examination, rather than by the government ab initio, courts have found no prejudicial error. Link v. United States, 352 F.2d 207, 210-211 (8th Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966); see United States v. Marchese, 341 F.2d 782, 795— 801 (9th Cir.), cert. denied, 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64 (1965). See generally Manning v. Rose, 507 F.2d 889, 891 fn. 2 (6th Cir. 1974).

Mitchell claims that the district judge erred in admitting into evidence a photograph comparing, apparently side-by-side, three different blasting caps where the photograph “attempted to take the decision away from the jury of determining whether or not the caps had a similarity” and where “[t]he caps were present for jury examination.” Of course, the admission of photographs lies within the district judge’s discretion. United States v. Burton, 485 F.2d 715, 717-718 (8th Cir. 1973); United States v. White, 454 F.2d 435, 438 (7th Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972). We find no abuse of discretion particularly in light of the non-inflammatory nature of the photographs and in light of established case law that photographs may supplement other evidence. See St. Lukes Hosp. Ass’n v. Long, 125 Colo. 25, 240 P.2d 917, 922 (1952); Morrissey v. Connecticut Valley St. Ry., 233 Mass. 554, 124 N.E. 435, 437 (1919).

Mitchell also claims that the district judge erred in instructing the mens rea requirement of a section 842(a)(3)(A) violation. Mitchell argues that the jury must find that the transporter knew that the interstate transportation violated federal law. By the statute’s plain language, however, the violator must “knowingly” transport explosives in interstate commerce; there is no requirement that the violator know that such transportation violates federal statute. Had Congress intended such a requirement, it could easily have imposed one. The judicial imposition of such a requirement would be particularly inappropriate in light of the almost universal lack of such requirement, LaFave & Scott, Criminal Law § 47 (1972), and of Congress’ remedial purpose in enacting section 842. See United States v. Dawson, 467 F.2d 668, 671-673 (8th Cir. 1972), cert. denied, 410 U.S. 956, 93 S.Ct. 1427, 35 L.Ed.2d 689 (1973); 116 Cong. Rec. 35298-35361 (1970).

Likewise we reject Mitchell’s assertion that there was insufficient evidence that he “caused” the interstate transportation of explosive devices. “Cause,” of course, has a broad meaning. See United States v. Hill, 468 F.2d 899 (5th Cir. 1972); United States v. Boone, 460 F.2d 1285 (4th Cir. 1972). As long as one puts in motion forces resulting in the interstate transportation of explosive devices, he has “caused” their interstate transportation; surely, one “causes” such interstate transportation by giving such devices to one he knows will cross state lines.

We also reject Mitchell’s claim that the district court lacked jurisdiction because “every act necessary on the part of the defendant, Mitchell, in order to be convicted” occurred outside the district. Federal statute specifically provides that

“[a]ny offense involving the transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided . , may be inquired of and prosecuted in any district from, through, or into which such commerce . moves.” 18 U.S.C. § 3237 (1970).

Clearly the district court had jurisdiction over the charge that Mitchell unlawfully caused the blasting caps to be transported from Mississippi to Memphis, Tennessee, Lord v. United States, 412 F.2d 499 (4th Cir. 1969); Oliver v. United States, 299 F.2d 352 (8th Cir.), cert. denied, 370 U.S. 960, 82 S.Ct. 1615, 8 L.Ed.2d 826 (1962); United States v. Malfi, 264 F.2d 147 (3rd Cir.), cert. denied, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959).

Mitchell claims error in admitting evidence that he was held in contempt for refusing to give a court-ordered exemplar and in instructing the jury that it could infer consciousness of guilt from such refusal. There was no evidence before the jury that Mitchell was cited for contempt. Trial Transcript at 2223-2227, 3424 — 3425. Evidence that Mitchell refused to comply with the court order, of course, is admissible. See United States v. Nix, 465 F.2d 90, 93 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972); Higgins v. Wainwright, 424 F.2d 177 (5th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); United States v. Parhms, 424 F.2d 152 (9th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 92, 27 L.Ed.2d 83 (1970); see also United States v. Stembridge, 477 F.2d 874 (5th Cir. 1973).

Mitchell claims error in the admission of evidence of six other crimes, particularly evidence that he attempted to conspire to kill a government witness. Evidence of such attempted conspiracy, with proper cautionary instructions, is admissible as showing “consciousness of guilt.” United States v. Cirillo, 468 F.2d 1233, 1240 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Alberti, 470 F.2d 878 (2d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973). Evidence of the later interstate transportation of explosives (blasting caps) was proper as showing “scheme or plan, motive, knowledge, intent, absence of mistake or accident, [or] identity.” Manning v. Rose, 507 F.2d 892 (6th Cir. 1974). Although the district judge should have cautioned the jury concerning the limited purpose of such evidence, Manning, supra, fn. 2, we decline to find plain error in the district judge’s failure to so instruct. United States v. Salter, 346 F.2d 509, 512 (6th Cir. 1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1196, 16 L.Ed.2d 206 (1966); see United States v. Minyard, 461 F.2d 931, 933 — 934 (9th Cir. 1972); United States v. Johnson, 415 F.2d 655-656 (9th Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 588, 24 L.Ed.2d 511 (1970); Baker v. United States, 310 F.2d 924 (9th Cir. 1962), cert. denied, 372 U.S. 954, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). Such transportation, being malum prohibitum, would be unlikely to inflame the jury. Moreover, although Mitchell’s counsel objected to several aspects of the jury instructions, he apparently was satisfied with the lack of a cautionary instruction.

Mitchell claims that the one-year delay between his arrest and his trial violated his constitutional right to a speedy trial. In balancing the four factors enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), particularly in light of Trigg v. State, 507 F.2d 949 (6th Cir. 1974), we find no denial of such right. First, the 28-volume transcript, compiled over sixteen trial days, indicates that the trial involved complex charges rather than charges of “an ordinary street crime.” See Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182. Moreover, the length of the pre-trial delay was considerably less than the delay of more than two years prior to the trial of the “ordinary street crime” in Trigg. Second, at least part of the delay can be attributed to Mitchell’s pretrial maneuvering and, in particular, to his refusal to comply with the court order requiring him to submit a voice exemplar. Third, although the courts have rejected the doctrine of requiring the assertion of the right to a speedy trial, asserting such a right remains relevant. Barker, supra, 407 U.S. at 524-529, 92 S.Ct. 2182. The government has argued that at no time prior to his trial did Mitchell assert such right; Mitchell, in arguing that the demand doctrine has 'been rejected, apparently accepts the government’s factual claim. Fourth, Mitchell has made no showing whatsoever that the delays impaired his defense.

The claim that the district judge should have recused himself from trying Mitchell is untenable. First, there is no showing that Mitchell’s attorney of record certified the good faith of Mitchell’s affidavit claiming bias and prejudice. United States v. Thomas, 299 F.Supp. 494, 500 (E.D.Mo.1968). Second, even assuming procedural compliance with 28 U.S.C. § 144 (1970), Mitchell’s allegations that the district judge had cited him for contempt at best demonstrate judicial, as opposed to personal, bias. Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974); United States v. Roca-Alvarez, 451 F.2d 843, 848 (5th Cir. 1971); Hanger v. United States, 398 F.2d 91, 100-101 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Garrison, 340 F.Supp. 952, 956—957 (E.D.La.1972). Third, much of Mitchell’s affidavit contains “scurrilities and generalities [which fall] far short of the specificities required by statute.” Griffith v. Edwards, 493 F.2d 495, 496 (8th Cir. 1974); Martelli v. City of Sonoma, 359 F.Supp. 397, 400 (N.D.Cal.1973).

Mitchell also contends, without making any specific claim of prejudice, that the district judge erred in excusing a juror midway through the trial with “no more than a cursory examination” into the juror’s illness and that a district court standing order prohibiting the unauthorized post-verdict questioning of jurors violates his constitutional right to a trial by jury. The record conclusively demonstrates that the district judge properly excused the juror. See Fed.R.Crim.P. 24(c); United States v. Cameron, 464 F.2d 333 (3rd Cir. 1972); United States v. Garafolo, 385 F.2d 200, 207-208 (7th Cir. 1967), vacated and remanded on other grounds, 390 U.S. 144, 88 S.Ct. 841, 19 L.Ed.2d 970 (1968); United States v. Ellenbogen, 365 F.2d 982, 989 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967). Moreover, it is well established that trial judges exercise their discretion in permitting the post-verdict interrogation of jurors. United States v. Stacey, 475 F.2d 1119 (9th Cir. 1973); Miller v. United States, 403 F.2d 77 (2d Cir.), dismissing appeal from 284 F.Supp. 220 (D.Conn.1968); United States v. Driscoll, 276 F.Supp. 333, 336-339 (S.D.N.Y.1967), rev’d on other grounds, 399 F.2d 135 (2d Cir. 1968). But see Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966).

Though Mitchell has claimed other reversible error, we have found those claims to be similarly lacking in merit.

Affirmed.

      . “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.”

      . “(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.”

      . “Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both .

      . “It shall be unlawful for any person . other than a licensee or permittee knowingly to transport, ship, cause to be transported, or receive in interstate or foreign commerce any explosive materials, except that a person who lawfully purchases explosive materials from a licensee in a State contiguous to the State in which the purchaser resides may ship, transport, or cause to be transported such explosive materials to the State in which he resides and may receive such explosive materials in the State in which he resides, if such transportation, shipment, or receipt is permitted by the law of the State in which he resides . .

      . “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court ... if the disclosure of that information would be in violation of this chapter.” 18 U.S.C. § 2515 (1970).

      . See 91 Cong.Rec. 11899-11922 (1945).

      . The Hobbs Act was designed to prevent labor organizations from coercing farmers to “hire” union drivers in order to get their produce to city markets. See 91 Cong.Rec. 11904, 11905, 11917 (1945).

      . The district judge properly charged the jury that extortion means “to obtain the property of another, with consent of such other person, by inducing such consent by wrongful use of force, violence or fear.” Trial Transcript at 3668. By coercing a businessman into changing his establishments from non-union to union, or risk being bombed, one deprives the businessman of his “property” interest of an economic advantage, of using non-union labor, or of operating his business.

      . “Counsel for the Defendant Max Britton, having informed the Court that the eighteen (18) Requests for Jury Instructions submitted on behalf of Defendant Max Britton, and denied by the Court as set out in the transcript at page 3687 and diligent search having been made in the file transmitted to the Sixth Circuit Court of Appeals, in the file of the United States District Court Clerk for the Western District of Tennessee, in the records and papers of the Court Reporter, and the file of the district judge, said Requests cannot be found, it is, on motion of the Defendant Max Britton, through counsel, and by consent of the United States District Attorney.
      “It is ordered, that the attached copies of sixteen (16) of the Requests for Jury Instruction submitted by Defendant Max Britton are authentic copies of those denied by the Court and properly excepted to by said Defendant. The Clerk is ordered to make said copies a part of the record in this cause and transmit them to the United States Court of Appeals for the Sixth Circuit at Cincinnati to be included in the record of the cause.
      “Because of the inability to reconstruct or furnish copies of the two (2) additional special Requests For Jury Instructions or to find the originals thereof, this order does not apply to those two (2) Requests.”

      . Trial courts in “approximately 20 jurisdictions throughout the United States” have admitted voiceprints. People v. Chapter, 13 Crim.L.Rep. 2479 (Marin Cty. Cal.Super.Ct. July 23, 1973). Reported appellate decisions in Florida have admitted voiceprints. Alea v. State, 265 So.2d 96 (3rd Fla.Ct.App.1972); Worley v. State, 263 So.2d 613 (4th Fla.Ct. App.1972). So has the United States Court of Military Appeals. United States v. Wright, 17 U.S.M.C.A. 183, 37 C.M.R. 447 (1967). New Jersey, which earlier held such analysis inadmissible, State v. Cary, 49 N.J. 343, 230 A.2d 384 (1967), has indicated the growing acceptance of such analysis. State v. Andretta, 61 N.J. 544, 296 A.2d 644 (1972). See also United States v. Askins, 351 F.Supp. 408, 416 — 418 (D.Md.1972). California’s courts of appeals are divided even among themselves. Compare Hodo v. Superior Court, 30 Cal. App.3rd 778, 106 Cal.Rptr. 547 (4th Ct.App. 1973), with People v. Law, 40 Cal.App.3rd 69, 114 Cal.Rptr. 708 (5th Ct.App. 1974). In judicial proceedings other than criminal trials, Minnesota has admitted voiceprints to establish probable cause, State ex rel. Trimble v. Hedman, 291 Minn. 442, 192 N.W.2d 432 (1971), and a federal district court has admitted them at a parole revocation hearing. United States v. Sample, 378 F.Supp. 43 (E.D. Pa. 1974). See generally Annot., Admissibility and Weight of Voiceprint or Sound Spectograph Evidence, 49 A.L.R.3rd 915 (1973).

      . Of course, appellants aired their criticism of voiceprints in cross-examining the voice-print expert. The district judge, moreover, specifically instructed the jury that Mitchell’s refusal to submit voice exemplars may stem from a “lack of trust in the validity of the voice exemplar test.” Trial Transcript at 3683.

      . United States v. Sample, 378 F.Supp. 43, 53 (E.D.Pa.1974); United States v. Brown, 13 Crim.L.Rep. 2203, 2204 (D.C.Super.Ct. May 1, 1973); cf. People v. Chapter, 13 Crim.L.Rep. 2479 (Marin Cty. Cal.Super.Ct. July 23, 1973). Though United States v. Stifel, 433 F.2d 431, 438, 441 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232 (1971), applied the Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), standard governing admissibility of scientific evidence as whether the scientific process has gained “general acceptance in the particular field in which it belongs,” we deem general acceptance as being nearly synonymous with reliability. If a scientific process is reliable, or sufficiently accurate, courts may also deem it “generally accepted.” Accord, United States v. Brown, 13 Crim.L.Rep. 2203, 2204 (D.C.Super.Ct. May 1, 1973).

      . “[THE COURT: I]nsofar as the contents of the memoranda is concerned, it is my understanding, as I said, that the Government does not contend that that’s factually correct, and it is not being offered for the truth of the contents of the memoranda, but simply as setting up a ruse or protection for the informer, Davis. Now, you jurors understand that, do you not?
      “(Jury indicates affirmatively.)
      “THE COURT: You won’t take anything in those memoranda as being an assertion as being true as evidence in the case? I am sure you won’t.
      “Now, is there anything else that we need to say to protect everybody here?
      “MR. PAUL [Britton’s counsel]: I think that’s fair enough.” Trial Transcript at 478-479. When the documents were referred to later, the district judge again cautioned the jury:
      “ . . .1 don’t believe it is necessary, but I will remind you again that the contents of these documents, that is the information in there is not being offered by the Government as being truthful. It is simply the Government, as you remember, according to the Government, used these documents through Mr. Davis to convince other people that some things were going on that really weren’t. You recall that, I am sure.”
      Trial Transcript at 2504. By twice, and particularly by promptly, admonishing the jury, the district judge substantially reduced the risk of prejudice. See Manning v. Rose, 507 F.2d 889, 891 fn. 2 (6th Cir. 1974).

      . “[I]n order to find the defendant Mitchell guilty under Count III of the indictment, you must find that on or about June 1, 1971, the defendant Mitchell knowingly caused to be transported from the Northern District of Mississippi into the Western District of Tennessee, Western Division, explosive materials, to-wit, non-electric blasting caps
      “Now, members of the jury, I charge you that it is not necessary that it be shown that the defendant Mitchell had knowledge at that time that it was a violation of the Federal Criminal Law to cause to be transported blasting caps in interstate commerce. It is necessary, however, that it be shown that at that time the defendant Mitchell knowingly caused such caps to be transported from the Northern District of Mississippi into the Western District of Tennessee, Western Division.
      “Members of the jury, an act is done knowingly if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason . . .” Trial Transcript at 3664-3665.

      . The district judge instructed the jury that
      “if you find that the defendant Mitchell turned over blasting caps to Webster with knowledge that Webster intended forthwith to transport such blasting caps from the State of Mississippi to the Western District of Tennessee, Western Division, and that the caps were forthwith so transported, then you may find that defendant Mitchell knowingly caused the blasting caps to be transported in interstate commerce as charged in the . indictment.”
      Trial Transcript at 3665-3666.

      . “Members of the jury, as you know, there has been evidence in this case to the effect that the defendant Mitchell refused to give his voice exemplar for the purpose of making a comparison between his known voice characteristics and the voice contained on certain tapes obtained by the Government .
      I charge you that such conduct on the part of a defendant, if you find that the defendant Mitchell did refuse to give his voice exemplar is not of course sufficient in itself to establish his guilt. But [it is a fact] which, if proved, may be considered by the jury in the light of all the other evidence, in the case in determining guilt or innocence. Whether or not evidence of such conduct shows a consciousness of guilt and the significance to be attached to any such evidence are matters exclusively within the province of the jury. In your consideration of this evidence, you should consider there may be reasons for this which are fully consistent with innocence. These may include lack of trust in the validity of the voice exemplar test. Let me also suggest to you that feeling of guilt does not necessarily reflect actual guilt. The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.” Trial Transcript at 3683-3684.

      . “I charge you that such conduct on the part of a defendant, if you find that the defendant Mitchell . . . did take some action for the purpose of doing away with said witness, after he was accused of this crime, is not of course sufficient in itself to establish his guilt. But [it is a fact] which, if proved, may be considered by the jury in the light of all the other evidence in the case in determining guilt or innocence. Whether or not evidence of such conduct shows a consciousness of guilt and the significance to be attached to any such evidence are matters exclusively within the province of the jury Let me also suggest to you that feeling of guilt does not necessarily reflect actual guilt.” Trial Transcript at 3682-3683.

      . “It appearing to the Judges of this Court that the post-verdict interrogation of jurors in furtherance of a fishing expedition in an effort to find material to impeach the verdict by testimony of a juror should be prohibited;
      “It is, therefore, ordered that no attorney, party or representative of either may interrogate a juror after the verdict has been returned without prior approval of the Court. Approval of the Court shall be sought only by an application made by counsel orally in open court or upon written motion which states the grounds and the purpose of the interrogation.
      “It is further ordered that if a post-verdict interrogation of one or more members of the jury should be approved, the scope of the interrogation and other appropriate limitations upon the interrogation may be prescribed at the time that the approval is granted by the presiding judge.” Accord, N.J.Rev. Rule 1:25(a) (-).

      . “THE COURT: The sergeant indicates that one of the jurors has a problem.
      “Is it you, ma’am?
      “THE JUROR: Yes, sir.
      “THE COURT: What is it?
      “THE JUROR: I guess it is my nerves. My head is dizzy, and I am nauseated.
      “THE COURT: Will you gentlemen approach the bench a minute?
      “THE COURT: Do you want to excuse her?
      “[MITCHELL’S ATTORNEY]: No, sir, I don’t .
      “THE COURT: Let me ask you this, ma’am: Do you think your physical condition is such that it is going to make it difficult for you to continue to listen to these witnesses and follow the proof?
      “THE JUROR: Yes, sir, I think so . . .
      “THE COURT: I will say that she doesn’t look well to me . . . I will go ahead and excuse her.
      “[MITCHELL’S ATTORNEY]: I want to note my exception to that.
      “THE COURT: All right.”
      Trial Transcript at 1610-1613.