author:
PER CURIAM:
      TIMBERS, Circuit Judge

text:
    UNITED STATES of America, Petitioner, v. Honorable Thomas P. GRIESA, United States District Judge, Respondent. UNITED STATES of America, v. Jack L. CLARK et al., Defendants.
    No. 919, Docket 73-1544.
    United States Court of Appeals, Second Circuit.
    Argued April 19, 1973.
    Decided May 4, 1973.

      Whitney North Seymour, Jr., U. S. Atty., New York City (John W. Nields, Jr., Gary P. Naftalis, Robert G. Morvillo, Richard J. Davis, Shirah Neiman and Ira Lee Sorkin, Asst. U. S. Attys., New York City, on the brief), for petitioner.
    Arthur F. Mathews, Wash., D. C., for defendant Clark.
    Peter E. Fleming, Jr., New York City, for defendants Wahrman, Bolka and Ma-dole.
    Robert P. Patterson, Jr., New York City, for defendant Gray.
    Ralph Wienshienk, New York City, for defendant Linn.
    Before HAYS, SMITH and TIMBERS, Circuit Judges.
   PER CURIAM:

On December 20, 1972, a 65 count indictment was returned in the Southern District of New York charging the eight defendants named in the caption of this case with violations of the antifraud provisions of the federal securities laws, the provisions of the federal securities laws proscribing the filing of false financial statements and the mail fraud statute, and with conspiracy to violate the said statutes.

On January 8, 1973, defendants Miller and McCollum pled guilty to four counts of the indictment. The remaining six defendants pled not guilty to those counts in which they were named. The case was scheduled for trial beginning May 1, 1973 in the Southern District of New York before Thomas P. Griesa, District Judge.

On March 39, upon motion of defendants Wahrman, Bolka, Madole, Gray and Linn — and over the opposition of the government and defendant Clark — Judge Griesa ordered the action transferred, as to the five moving defendants, to the United States District Court for the Western District of Oklahoma, pursuant to Fed.R.Crim.P. 21(b). The judge severed the action as to the moving defendants in order to effectuate the transfer. This results in the action as against defendant Clark to be tried in the Southern District of New York; and the action as against the five moving defendants to be tried in the Western District of Oklahoma.

On April 12, the government filed the instant petition for a writ of mandamus seeking the following relief:

(1) That Judge Griesa be directed to vacate the order transferring the action as to the five moving defendants to the Western District of Oklahoma; and
(2) That the Chief Judge of the Southern District of New York designate another judge to preside over the trial of the instant action.

On April 19, we heard oral argument by counsel for the government and by counsel for each of the six defendants awaiting trial.

After due consideration, we have decided that the petition for a writ of mandamus should be denied and it is so ordered.

We start from the proposition that mandamus is an extraordinary writ “reserved for really extraordinary causes.” Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). As we recently noted, the writ may be used only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so,” Hilbert v. Dooling, 476 F.2d 355 (2d Cir., 1973) (en banc) (quoting from Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943)). See also SEC v. Stewart, 476 F.2d 755 (2d Cir., 1973). The government does not seriously contend that the district court acted outside its jurisdiction here; at most, we are urged to correct what petitioner conceives to be an incorrect decision. We do not view this as an appropriate use of the extraordinary writ. SEC v. Stewart, supra.

Moreover, as the Supreme Court has warned us in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L. Ed.2d 305 (1967), the usual reluctance to allow appeal of interlocutory orders through mandamus should be even more applicable in the context of criminal cases. The Court noted that it had “never approved the use of the writ to review an interlocutory order in a criminal case which did not have the effect of dismissal.” Id. at 9. To be sure, the Court then left open the possibility that wider use of the writ might be permissible. But that still leaves the petitioner here in the position of asking us to break new ground. It is difficult to conceive that a transfer order under Fed.R.Crim.P. 21(b) could ever provide the occasion for such a jump forward; in this case, at least, we decline the gambit.

Referring to the second item of relief sought in the government’s petition for mandamus as set forth above, we believe in fairness and in the public interest it should be stated that nothing in the record before us would justify our ordering, or recommending that the Circuit Council order, that another judge be designated to preside over the trial of this action. We are confident that Judge Griesa is fully competent to do so.

Petition for writ of mandamus denied.

TIMBERS, Circuit Judge

(concurring in part and dissenting in part):

I.

I concur with the majority’s refusal to order, or to recommend that the Circuit Council order, that a judge other than Judge Griesa be designated to preside over the trial of this action. The relief sought by the government in this respect is based chiefly on what Judge Griesa candidly concedes to have been his lack of experience in criminal matters before entering upon his duties as a district judge on September 22, 1972, and his limited experience while on the bench in having tried but one criminal case to a conclusion. Whatever may be the merits of the government’s suggestion that the Circuit Council should give attention to the operation of the present random system of assigning complex criminal cases, I agree with the majority that on the present record this is not a matter properly within the mandamus power of this Court. And I share the confidence of my colleagues in Judge Griesa’s competence to preside over the trial of this action.

II.

With the utmost deference to my colleagues, however, I respectfully dissent from the denial of the petition for a writ of mandamus. My dissent is based chiefly on the ground that the transfer order of the district court which results in the bifurcation of a massive securities fraud prosecution — necessitating two separate, delayed, lengthy and expensive trials, one in the Western District of Oklahoma and one in the Southern District of New York — is so clearly not “in the interest of justice” as to constitute an abuse of discretion which should be corrected by our issuance of a writ of mandamus.

(A)

As for the mandamus jurisdiction of our Court to review the transfer order of the district court, I am satisfied that we have such jurisdiction pursuant to the supervisory mandamus doctrine. LaBuy v. Howes Leather Co., 352 U.S. 249, 259-60 (1957); Schlagenhauf v. Holder, 379 U.S. 104, 110-11 (1964); SEC v. Stewart, 476 F.2d 755, 763-66 (2 Cir. 1973) (dissenting opinion of Timbers, J.), and authorities there cited.

The principles to be applied in determining whether a writ of mandamus should issue are basically the same whether the underlying action is civil or criminal. United States v. Dooling, 406 F.2d 192, 198-99 (2 Cir. 1969), cert. denied sub nom. Persico v. United States, 395 U.S. 911 (1969); United States v. Nebbia, 357 F.2d 303, 305 (2 Cir. 1966). Where a district court acts in excess of its authority or clearly abuses its discretion, an appellate court will grant the writ at the behest of an aggrieved party. Miller v. United States, 403 F.2d 77, 78-81 (2 Cir. 1968); SEC v. Stewart, supra, 476 F.2d at 763-66, and cases cited at 765.

In Will v. United States, 389 U.S. 90 (1967), the Supreme Court indicated that "additional considerations” are involved in deciding whether' to grant the writ where the government seeks it in a criminal ease. These additional considerations essentially are the policies represented by the speedy trial and double jeopardy provisions of the United States Constitution. 389 U.S. at 96. But the presence of these considerations does not mean that the government will never be successful in seeking the writ. In Will, the Court suggested that some, but certainly not all, uses of the writ of mandamus can be called forms of “appeals” and thus subject to the rule of construction prohibiting government appeals not strictly authorized by statute. The Court stated that historically it had “never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal.” 389 U.S. at 98. This might be taken to indicate that writs to review interlocutory procedural orders are deemed by the Court to be equivalent to appeals. As a logical matter, however, the Court obviously did not mean this. Reviewing an interlocutory procedural order on mandamus is no more similar to an appeal than is reviewing a dismissal on mandamus. Also, later in the opinion, the Court indicated that its greater concern was with the use of the writ for supervisory purposes:

“We note in passing that La Buy and the other decisions of this Court approving the use of mandamus as a means of policing compliance with the procedural rules were civil cases. See Schlagenhauf v. Holder, 379 U.S. 104 (1964); McCullough v. Cosgrave, 309 U.S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706, 707 (1927) (dictum). We have pointed out that the fact this case involves a criminal prosecution has contextual relevance. See supra, at 96-98. In view of our reading of the record, however, we need not venture an abstract pronouncement on the question whether this fact imposes a more stringent standard for the invocation of mandamus by the Government where the allegation is that a district judge has deviated from the federal rules.” 389 U.S. at 100 n. 10.

What the Court appears to have meant by its earlier statement was that the policy against prosecutorial harassment through prolonged or repeated trial weighs heavily against review on mandamus of interlocutory procedural orders unless they have the effect of a dismissal. But this does not preclude issuance of the writ in an appropriate case where the need to correct an erroneous interlocutory order overrides the policy against prosecutorial harassment. Indeed, the Court expressly stated that it was leaving that possibility open:

“We need not decide under what circumstances, if any, such a use of mandamus would be appropriate. It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense.” 389 U.S. at 98.

Indeed, it has long been recognized that the writ will issue to correct gross errors in criminal cases at the behest of the government. E. g., United States v. Smith, 331 U.S. 469 (1947); Ex parte United States, 287 U.S. 241 (1932); Ex parte United States, 242 U.S. 27 (1916); United States v. Mayer, 235 U.S. 55 (1914); United States v. Lasker, 481 F.2d 229 (2 Cir. 1973). Such use of the writ is consistent with its recognized function to maintain the integrity and efficiency of our judicial system. United States v. United States District Court, 444 F.2d 651 (6 Cir. 1971), aff’d, 407 U.S. 297, particularly at 301 n. 3 (1972); United States v. Hughes, 413 F.2d 1244, 1247 (5 Cir. 1969), vacated as moot sub nom. United States v. Gifford-Hill-American, Inc., 397 U.S. 93 (1970). Accordingly, where issuance of the writ is proper under the general mandamus standards, it should issue upon the petition of the government if the necessity to correct an abuse of discretion by a district judge outweighs the impingement of such policies as those reflected by the double jeopardy and speedy trial provisions of the Constitution. United States v. Dooling, supra, 406 F.2d at 198-99.

In determining whether our mandamus power should be exercised here, the essential question is whether this is a sufficiently unusual and compelling case to warrant our intervention to review the transfer order of the district court. I think it is.

(B)

It is difficult for me to perceive a clearer abuse of discretion than the transfer order of the district court below — all else aside, because it results in the bifurcation of this massive securities fraud case, necessitating separate trials in the Western District of Oklahoma and the Southern District of New York.

The fraud charged in the indictment arose out of the financial collapse of Four Seasons Nursing Centers of America, Inc., a publicly held corporation engaged in the construction and operation of nursing homes and health care facilities. Defendants are charged with having utilized fraudulent devices in various financial statements, registration statements and prospectuses. These were filed with the SEC and the American Stock Exchange. They caused the earnings of Four Seasons to appear greatly in excess of what they actually were. The stock was touted by the insiders. Defendants sold to the public substantial amounts of newly issued stock, together with large quantities of their personally owned stock. The stock was sold at enormously inflated prices by the insiders and through the marketing efforts of Walston & Co., the broker for Four Seasons. Substantially all of this activity took place in New York and other financial centers of the United States — not in Oklahoma.

The net result, according to the government, was a loss to public investors of close to $200 million; illegal personal profits to defendants and their co-conspirators of more than $21 million; defrauding the State of Ohio on a $4 million loan; and defrauding European investors of $15 million worth of debentures. We are told that the case represents one of the most important criminal cases presently pending in the Southern District of New York, and one of the most massive securities fraud prosecutions ever undertaken during the four decades since Congress enacted the original federal securities laws.

The indictment which was returned in the Southern District of New York on December 20, 1972 resulted from a ten month investigation by a special grand jury in that district and by the United States Attorney’s office in that district. During the ensuing four month period, 25 separate motions were filed by defendants, including motions for a bill of particulars, discovery, dismissal of the indictment and change of venue. The government on March 16 filed a 26-page bill of particulars pursuant to the court’s order. The court also ordered extensive discovery and inspection of 35 file cabinets of documents in the government’s possession — first on a 24 hour, later reduced to a 14 hour, 7 day week basis. The court has ruled that the May 1 trial date is a firm one, having refused as recently as April 10 to grant a one month continuance upon the joint application of the government and defendant Clark. It is estimated that the trial will require two to six months.

The court’s order of March 30 transferring the case as to five of the six defendants to the Western District of Oklahoma was over the opposition of the government and defendant Clark. The latter opposed the motion on the ground he was entitled to a joint trial with the other defendants in the Southern District of New York where all defendants had been indicted, and on the further ground that he could not obtain a fair trial in the Western District of Oklahoma where there had been extensive pre-trial publicity.

The effect of the district court’s transfer order, as the government points out, is to require two separate trials of this massive securities fraud case in two widely separated districts, whereas only one would have been required before. This means substantial duplication of time, effort and money with respect to judicial manpower, government counsel and investigators, defense counsel and investigators, witnesses and numerous court personnel. From the standpoint of witnesses alone, the inconvenience of being required to testify at two separate trials, 1500 miles apart, is enormous. In addition to the 52 potential witnesses which certain of the defendants anticipate calling, the government plans to call 54 victim witnesses (32 of whom are named in the indictment and reside in the New York area), plus 75 other witnesses (20 of whom reside on the East Coast). Aside from the location of the witnesses, the critical point is that most of the 129 government witnesses will be required to testify at two separate trials. On this score alone, the transfer order can hardly be said to be “[f]or the convenience of witnesses.” Rule 21(b).

The bifurcation of the case will cause a delay in the trial of the Western District of Oklahoma segment for an estimated period of at least nine months to a year. This results from several factors. Two of the five transferred defendants who made the motion to transfer have announced that they will have to retain new counsel. The judge to whom the case is assigned in the transferee court will need time to familiarize' himself with the case and to rule upon additional motions. And the government understandably will have to complete the two to six month trial of the New York segment of the case (where the 35 file cabinets of documents are located) before it can proceed to trial in Oklahoma. Such delay in the disposition of a major criminal case, far from being “in the interest of justice”, strikes me as being squarely contrary to the settled policy of our Court, as expressed through our Circuit Council, regarding the prompt disposition of criminal cases.

In fairness to the district court, it did recognize the problems created by its bifurcation of this case. It noted in its opinion that “[t]he Government points out that the division of the case will result in two lengthy trials and much unnecessary duplication of effort because of the common issues involved.” 360' F.Supp. at 946. The district court then responded to this claim on essentially two grounds:

(1) “[T]he situation the Government now faces was brought about by its own questionable decision to prosecute this case in a district remote from most of the events and persons involved”; and
(2) “If the Government in fact wishes to avoid duplicate trials, it could well consider the possibility of trying to reindict Clark in the . Western District of Oklahoma and consolidating the proceedings there.” Id. at 946.

In my view — on the critical issue of whether the transfer was “in the interest of justice”- — the district court’s response demonstrates a complete misapprehension of the joint responsibility of the Securities and Exchange Commission and the Department of Justice in determining the appropriate venue for a criminal securities fraud case such as the instant one; and a similar misapprehension as to the indietability of defendant Clark in the Western District of Oklahoma.

Taking up the district court’s misapprehensions in reverse order, it is simply not so that there is any “possibility of trying to reindict Clark in the Western District of Oklahoma” on the mail fraud counts (Counts 35-56) or on the false filing counts (Counts 63-65). Venue could not be laid in the Western District of Oklahoma with respect to those counts. Hence, if this ground stated by the district court purporting to justify the transfer were to be accepted, it would “have the effect of a dismissal”, Will v. United States, supra, 389 U.S. at 98, of the criminal proceeding against Clark with respect to 25 of the 65 counts. As for the other 40 counts against Clark, even if the government were to subbifurcate the case by reindicting Clark on these counts in the Western District of Oklahoma after a lengthy re-presentation of the evidence to a new grand jury there, it would be faced with the strong likelihood of a successful motion by Clark pursuant to Fed.R.Crim.P. 21(a) to have the case transferred back to the Southern District of New York because of the prejudicial pre-trial publicity in Oklahoma referred to above. And it should be noted that the transfer provided for in Rule 21(a) is mandatory, whereas a Rule 21(b) transfer is discretionary.

The other ground upon which the district court purported to justify its division of the case — namely, that “the situation the Government now faces was brought about by its own questionable decision to prosecute this case in [the Southern District of New York]” — represents an even more serious misapprehension of a most delicate and sensitive area of decision making which is entrusted by Congress to the executive branch of the government, here to the Securities and Exchange Commission and the Department of Justice.

Prior to the ten month special grand jury investigation which preceded the return of the instant indictment in the Southern District of New York, a series of administrative proceedings were undertaken for the purpose of determining whether criminal proceedings should be instituted and, if so, where. The statutory basis for the SEC’s investigatory responsibility is found in Section 21(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u(e) (1970), and Section 20(b) of the Securities Act of 1933, 15 U.S.C. § 77t(b) (1970). Congress has granted to the SEC under each Act the authority to pursue two specific, non-exclusive courses of action with respect to violations of the Acts: (1) to institute a civil injunction enforcement proceeding; and (2) if the evidence warrants, to transmit a criminal reference report to the Attorney General leading to possible criminal proceedings. SEC v. Stewart, supra, 476 F.2d at 760.

Here, as the district court noted, the SEC investigation into the affairs of Four Seasons operated out of the SEC’s regional office at Fort Worth, Texas. In view of the far-flung scope of the alleged fraud — throughout the United States and abroad — the investigative facilities of other SEC regional offices throughout the Country were utilized, including those in New York, Chicago and Los Angeles. The field investigation was authorized, coordinated and closely supervised by one or more of the SEC’s operating divisions in Washington, D.C. under the aegis of the Commission itself. Ultimately the staff report of such field investigation was submitted to the appropriate operating division or divisions which, after consultation with the General Counsel’s office, made certain recommendations to the Commission, including a recommendation as to whether civil or criminal proceedings, or both, should be instituted.

Since we know that criminal proceedings were instituted, they were recommended by a criminal reference report transmitted to the Department of Justice by the SEC pursuant to its statutory responsibility to “transmit such evidence as may be available concerning such acts or practices to the Attorney General, who may, in his discretion, institute the necessary criminal proceedings under this chapter.” 15 U.S.C. § 78u(e) (1970). After certain staff work in the Department of Justice and ultimately upon the recommendation of its Criminal Division, the Attorney General, in his discretion, made a decision, first, that criminal proceedings should be instituted, and, second, that they should be instituted in the Southern District of New York. At that point, the prosecution was entrusted to the office .of the United States Attorney for that district — an office which traditionally has been accorded a degree of autonomy unique among United States Attorneys’ offices throughout the Country. There followed the ten month investigation by the special grand jury and the United States Attorney’s office in the Southern District of New York which culminated in the return of the instant indictment on December 20, 1972.

Far from reflecting a “questionable decision to prosecute this case” in the Southern District of New York, as the district court below thought, the decision on the contrary resulted from the exercise of the joint responsibility entrusted by Congress to the SEC and the Department of Justice and reflected a delicately calibrated balance between many competing considerations, including the proper interests of the defendants, of the government and — not to be overlooked — of the defrauded public investors, i. e., “by resolving doubts in favor of those the statute is designed to protect”. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 385 (1970). While Rule 21(b) does grant discretionary power to the district court to transfer a criminal case in the interest of justice (a showing required in addition to the convenience of parties and witnesses), I think that district judges would be well advised to heed the admonition of one of the wisest and most experienced district judges in the entire federal system that “[a]s a general rule a criminal prosecution should be retained in the original district.” United States v. United States Steel Corp., 233 F.Supp. 154, 157 (S.D.N.Y.1964) (Weinfeld, J.).

In short, I believe that the transfer order of the district court here which results in the bifurcation of a massive securities fraud prosecution is not in the interest of justice and constitutes a clear abuse of discretion.

III.

In addition to the importance of our granting a writ of mandamus to correct the district court’s abuse of discretion in the instant case, I regard the matter before us as transcending in importance even the issues of this particular case.

Hardly more than a glance at the headlines in the daily press is needed to indicate the inadvisability of unnecessary hobbling of those agencies of the United States government charged with the awesome responsibilities entrusted to them by Congress of enforcing the federal securities laws, including criminal prosecutions. In addition to the handicaps of limited budgets and staffs, to impose the further burden of two separate, delayed, lengthy and expensive trials in widely separated districts, where only one trial is necessary, is to strike at the jugular vein of effective law enforcement in one of the most critical areas of our economy. The precedent of the transfer order below, unless corrected, will cause mischief in the enforcement of the federal securities laws, indeed of all criminal laws. And the unfortunate radiations of this transfer order will have their impact beyond this Circuit.

This is precisely the extraordinary case for which the extraordinary writ of mandamus is reserved. I would issue the writ and remand the case to the district court, Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 246 (1964), for reconsideration of its transfer order in light of the considerations set forth above, including the appropriate criteria for determining whether the bifurcation of this massive securities fraud ease is in the interest of justice. By so doing we would again affirm the strong policy of this Court in securities fraud cases of protecting the paramount public interest involved. See, e. g., Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 357-358, 386-387, 390 (2 Cir. 1973); Gulf & Western Industries, Inc. v. The Great Atlantic & Pacific Tea Company, Inc., 476 F.2d 687, 693, 698-99 (2 Cir. 1973); SEC v. Everest Management Corp., 475 F.2d 1236, 1240 (2 Cir. 1972); SEC v. Manor Nursing Centers, Inc. 458 F.2d 1082, 1100-06 (2 Cir. 1972).

      . Indeed, Professors Wright and Miller have commented that the 1986 amendments to Rule 21, which dropped the former emphasis on venue and allowed transfers to be made “For the convenience of parties and witnesses, and in the interest of justice,” (emphasis added) “should eliminate any .occasion for such use of mandamus.” 1 O. Wright & A. Miller, Federal Practice and Procedure § 347 at 648. Of. 8 J. Moore, Federal Practice ¶ 21.04 [3].

      . Nor do we think this an appropriate instance for the exercise of what has been termed supervisory mandamus. See LaBuy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). As we noted in SEC v. Stewart, supra, supervisory mandamus is particularly ill-suited as a method of policing district court decisions that turn on issues of fact, as is certainly the case here. Moreover, the same considerations that militate generally against use of the writ in criminal appeals arguably apply where supervisory mandamus is concerned. Cf. Will v. United States, supra, 389 U.S. at 100, n. 10, 88 S.Ct. 269.

      . AArearing my hat as a member of the Circuit Council — not as a member of this panel on the instant mandamus petition— I believe there is substantial merit to the government’s suggestion. Indeed, I know of no problem within the province of our Circuit Council of any greater urgency. See Report of the Proceedings of the Judicial Conference of the United States, Washington, D.C., October 28-29, 1971, which on October 29, 1971 adopted the report of its Committee On Court Administration (pp. 70-74), including the following:
      “There shall be established within each multi-judge court a screening system whereby all cases potentially presenting unusually difficult questions of law or procedure and which may require longer periods of time for disposition than so-called routine cases, or which by their inherent nature will require exceptional supervision, will be identified and assigned in accordance with the procedures herein set forth.” Id. at 71.
      This recommendation of the Judicial Conference of the United States appears never to have been implemented by the District Court for the Southern District of New York. In my view, it should be without further delay.

      . Tlie -transfer order of the district court was entered pursuant to Fed.R.Crim.P. 21(b) which provides:
      “(b) Transfer in Other Cases. For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.” (emphasis added).

      . Many years ago these same considerations formed the basis for the still vital rule of construction that the government can take no appeal in a criminal case that is not provided for expressly by a federal statute. United States v. Sanges, 144 U.S. 310 (1892).

      . As we repeatedly have stated, the reference to “abuse of discretion” on the part of the district judge is not to be taken as any reflection upon the district judge personally. See SEC v. Stewart, supra, 476 F.2d at 759 n. 1. Cf. SEC v. Bangor Punta Corp., 480 F.2d 341, 386 n. 42 (2 Cir. 1973). Such term simply expresses the judicial standard to be invoked in determining whether the writ of mandamus should issue. My colleagues and I hold Judge Griesa in the highest esteem. The benchmark of a truly competent district judge — as with Judge Griesa in the instant case — is his capacity to insure that the record demonstrates with crystal clarity the basis of his exercise of discretion, so that a reviewing court can determine abuse of discretion or the absence thereof.

      . As stated above, my dissent is based chiefly on the ground that the transfer order, in bifurcating this massive securities fraud case, is so clearly not “in the interest of justice”, Fed.R.Crim.P. 21 (b), as to constitute an abuse of discretion.
      With respect to the other Rule 21(b) grounds for transfer — “convenience of parties and witnesses” — it would appear from the record before us that the only factor that clearly points toward the Western District of Oklahoma as an appropriate forum is the convenience of the five moving defendants, four of whom reside in Oklahoma City and the fifth in Wichita Falls, Texas. (Defendant Clark, whose case remains to be tried in the Southern District of New York, also resides in Oklahoma City.) But we have held that where defendants in a criminal case have utilized a New York distributor (here, Walston & Co.) to sell stock to the public, “they can scarcely complain of a New York venue”. United States v. Aronson, 319 F.2d 48, 52 (2 Cir.), cert. denied, 375 U.S. 920 (1963). See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964) (“‘home’ of the respondent has no independent significance in determining whether transfer to that district would be ‘in the interest of justice’,” Id. at 245) ; Jones v. Gasch, 404 F.2d 1231, 1240 n. 43 (D.C.Cir. 1967), cert. denied, 390 U.S. 1029 (1968) (“we are unable to read out of [Platt’s] broad language those defendants who are natural persons.”)
      In any event, the district court did take into account the nine factors enumerated in Platt, supra, 376 U.S. at 243-44, as bearing on the propriety of a transfer. And while I doubt that the record would support a finding that the Western District of Oklahoma is clearly the more appropriate forum, all of the Platt factors considered, I recognize that in determining whether mandamus relief should be granted it would be improper for us to substitute our judgment for that of the district court in weighing the propriety of the two districts under consideration from the standpoint of the convenience of parties and witnesses.
      But the question of whether the bifurcation of this case is in the interest of justice is on quite a different footing so far as abuse of discretion is concerned— particularly in the light of certain of the district court’s misapprehensions, referred to below, in stating its grounds purporting to justify the transfer.

      . Ironically, of the 96 districts in the United States, the one district singled out as the transferee district by defendants’ motion to transfer is a district that has not been without its own problems regarding assignments. See Chandler v. Judicial Council Of The Tenth Circuit, 398 U.S. 74 (1970). Presumably, under Rule 21(b), the district judge to whom the transfer motion is addressed has no discretion in selecting the district to which the transfer is to be made; if there is to be a transfer at all, it must be to the district specified in the motion. Wright & Miller, Federal Practice and Procedure § 345 (1969).
      Comparison of the judicial manpower and government personnel in the two districts would appear to be a factor bearing on the propriety of the transfer order. In the Western District of Oklaliorna, there are 4 district judges and 7 Assistant United States Attorneys. In the Southern District of New York, there are more than 25 district judges and more than 90 Assistant United States Attorneys.
      The author of this opinion having served for more than ten years on a 4 judge district court, including seven years as chief judge, can take judicial notice of the enormous disruption that most assuredly will be caused in the transferee district by the transfer of this case. It will be about as welcome there as a six month dust storm on the prairie.

      . This fertile field for securities fraud is no stranger to this Court. See SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082 (2 Cir. 1972).

      . Clark now appears to have partially changed his tune. His counsel at the argument of the mandamus petition before us supported the order of the district court which involves a separate trial of Clark in the Southern District of New York.

      . See Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases:
      “The public interest requires disposition of criminal charges with all reasonable dispatch. The deterrence of crime by prompt prosecution of charges is frustrated whenever there is a delay in the disposition of a case which is not required for some good reason. The general observance of law rests largely upon a respect for the process of law enforcement. When the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded.” 28 U.S. C.A. (Supp.1973).

      . The mail fraud counts (Counts 35-56) charge defendants with effectuating a fraudulent scheme through the use of the mails in violation of 18 U.S.C. § 1341 (1970). Venue with respect to those counts can be laid only at the place of mailing, the place of receipt of the mail or the places through which the mailed matter passed. Hagner v. United States, 285 U.S. 427 (1932); Salinger v. Loisel, 265 U.S. 224 (1924); United States v. Cashin, 281 F.2d 669, 674 (2 Cir. 1960). All of the mailings alleged in Counts 35-56 of the instant indictment were mailed from New York to places in New York, New Jersey, Connecticut or Ohio. None was mailed from, to or through Oklahoma.
      The false filing counts (Counts 63-65) charge certain defendants, including Olark, with filing a false listing application and false annual reports of Four Seasons with the American Stock Exchange and the Securities and Exchange Commission in violation of 15 U.S.C. §§ 781 and 78m (1970). Venue with respect to those counts can be laid only “in the district wherein any act or transaction constituting the violation occurred”. 15 U.S.C. § 78aa (1970). The false documents having been filed in New York City and Washington, D.C.' — not in Oklahoma — venue would be proper only in the Southern District of New York or the District of Columbia, not in the Western District of Oklahoma. See Travis v. United States, 364 U.S. 631, 636 (1961).

      . Section 20(b) of the Securities Act of 1933, 15 U.S.C. § 77t(b) (1970), is substantially identical to Section 21(e) of the Securities Exchange Act of 1934, a portion of which is quoted in the text.


source: Caselaw Access Project

author: HAYNSWORTH, Chief Judge:

license: Public Domain

text:
    Jim Eugene FOY, Appellant, v. V. Lee BOUNDS, Director of North Carolina Department of Correction, Appellee.
    No. 72-1003.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 8, 1972.
    Decided June 20, 1973.

      Professor Ralph S. Spritzer, University of Pennsylvania School of Law, Philadelphia, Pa. (Norman B. Smith and Smith, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appellant.
    Jacob L. Safron, Asst. Atty. Gen., (Robert Morgan, Atty. Gen., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge,, and WINTER, Circuit Judge.
   HAYNSWORTH, Chief Judge:

In this habeas corpus ease, the prisoner complains that he was not afforded the right of confrontation of adverse witnesses in his North Carolina probation revocation hearing. While the right of confrontation was not afforded, under the circumstances of this case, we find no denial of due process.

Foy had been convicted in North Carolina of a “crime against nature,’’ and a suspended sentence had been imposed upon him. He was placed on probation, one of the general conditions being that he abide by all applicable laws, and a special condition being that he submit to treatment by a psychiatrist who should file monthly reports with the probation officer.

Foy obtained permission to return to Ohio, where he previously had lived, and the Ohio probation authorities agreed to provide supervision of him. Foy moved into an apartment in the home of a Mennonite minister in the rural community of Sugercreek, Ohio, inhabited largely by Amish and Mennonite people.

In less than a year the supervising Ohio probation officer filed a report with the North Carolina officials, in which he detailed reports by a number of young boys of homosexual assaults upon them by Foy. The report also contained information that Foy had not been consulting the psychiatrist to whom the Ohio authorities had referred him. The report indicated that the parents of the young boys found the matter embarrassing to them, and to their children, and were not inclined to have their sons appear in open court as prosecution witnesses. The report concluded with a request that the North Carolina probation officials institute probation revocation proceedings in that state.

A warrant, incorporating the charges against him, was issued under which Foy was returned to North Carolina. A lawyer was appointed to represent him, and he was permitted to examine the Ohio report and all correspondence between probation officers in Ohio and North Carolina. A hearing was then held before a judge of the Superior Court.

At the hearing, a North Carolina probation officer submitted a report incorporating the report which had been received from Ohio. The Ohio report indicated that Foy had admitted to the Ohio probation officials some of the offenses with which he was charged, and attached to it was a statement signed by Foy describing one of those assaults. All of this was submitted to the judge without objection by Foy or his lawyer. Foy then elected not to testify. At no time did he do anything to deny the charges made against him or the hearsay information submitted to the North Carolina judge. The hearing thus concluded, an order was entered finding that Foy had violated the terms of his probation by committing one of the assaults with which he had been charged, and his probation was revoked.

Foy took no appeal from the revocation order, but later he sought collateral relief in the state court and was unsuccessful. He then sought habeas corpus in the district court, and has brought this appeal from its denial there.

Within recent weeks, the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 announced due process standards governing probation revocation hearings. In effect, the Court adopted standards enunciated earlier for parole revocation hearings in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Except that there was no preliminary hearing in Ohio to determine probable cause for a later full revocation hearing, and with the possible exception of the matter of confrontation, to be discussed presently, Foy’s hearing abundantly complied with all of the due process requirements. The warrant gave him written notice of the conduct with which he was charged as violating the terms of his probation. There was full disclosure of all of the evidence against him, and the entire file was opened to his lawyer. The hearing was before an impartial trial judge, who filed a written opinion stating his findings of fact upon which he based the revocation order.

Though the Supreme Court concluded that appointment of counsel for an indigent probationer was not necessary in every probation revocation proceeding, Foy had an appointed lawyer, so there is no possible problem on that score.

This revocation hearing was held in 1970, long before Gagnon’s requirement of a preliminary hearing in probation revocation cases. Gagnon’s conclusion may have been foreshadowed by Morrissey’s holding in 1972 that a preliminary hearing was required in parole revocation hearings, but that, too, was long after Foy’s hearing. The Court in Morrissey explicitly said that its requirements are “applicable to future revocations of parole,” and the whole tone of the opinion is prospective. This does not necessarily mean that some earlier probation revocations may be found invalid for want of basic fairness, but the opinions can hardly be read to require a retroactive application of the requirement of a preliminary hearing to a case in which a full revocation hearing was held promptly, counsel was provided the probationer and findings, supported by the record, were made of actual violations of the conditions of probation. The absence of an earlier preliminary hearing in Ohio before an impartial officer, not necessarily a judicial one, would have provided immediate assurance against inappropriate recommendations by an over-zealous supervising probation officer, but the absence of such a hearing hardly can be said to have infected the integrity of the factfinding process in the North Carolina hearing.

We need not here consider whether the confrontation requirement should be retroactively applied in a case in which denial of a right of confrontation worked patent unfairness, for, while the young boys were not presented as witnesses, subject to cross examination, we think there was substantial compliance with the new requirement.

The case for revocation of Foy’s probation was largely made by the introduction of the report from the Ohio probation officer. The officer was not present, so his report was hearsay, and included in the report was some information the probation officer had obtained from a fellow probation officer, so the report was in part hearsay on hearsay. It was supported in part, however, by a report of Foy’s verbal admissions and in part by a handwritten paper, signed by him, in which he fully described one of the assaults. That state ment contains a recital that he had been advised of his “Meranda” (sic) rights.

Though the typewritten report would not have been admissible against him in a criminal proceeding, Morrissey made it clear that the parole revocation hearing was not to be equated with a criminal prosecution. The Court specifically said that the hearing officer could consider “evidence, including letters, affidavits and other material that would not be admissible in an adversary criminal trial.” That has been the traditional rule and the one prevailing in North Carolina and in the Fourth Circuit.

There was thus no violation of the new standards in the receipt of the Ohio report, but the right of confrontation which Morrissey and Gagnon provide must mean that on demand by Foy the victims of the alleged assaults should have been presented for cross examination, either in Ohio or in North Carolina, unless, as the right of confrontation is limited, “the hearing officer specifically finds good cause for not allowing confrontation.” There was no specific finding by the judge of the Superior Court in this case of good cause for not allowing confrontation but there had been no request for confrontation, and Morrissey and Gagnon had not been written to tell him what to do.

The failure of Foy and his lawyer to object at the time of the hearing, or to request production of the victims of the alleged assaults for cross examination, may have been a waiver of whatever right of confrontation • Foy had, but surely his failure to deny in any way the charges against him furnished good reason for not producing these young boys for cross examination in the face of the reported embarrassment of them and their parents. Revocation hearings are designed as informal proceedings, not as adversary criminal prosecutions. Foy had a right to say nothing, but in a revocation proceeding he hardly has a right to complain that witnesses of tender years were not brought a great distance to present testimony on factual issues which were not controverted. There is nothing in the record to indicate that he ever questioned the accuracy of any detail of the assaults described in the Ohio report and, Qf course, he never disclaimed his own written description of one of them. Now, in these collateral proceedings, Foy should not be heard to complain of a lack of confrontation, he did not request, of witnesses, whose reported statements he did not dispute.

For these reasons, we find no essential unfairness in the revocation proceeding and no substantial violation of the standards of Morrissey or Gagnon to the extent that those standards may be retroactively applied.

Affirmed.

      . 408 U.S. 490, 92 S.Ct. 2604.

      . 408 U.S. 489, 92 S.Ct. 2604.

      . State v. Duncan, 270 N.C. 241, 154 S.E. 2d 53 (1967).

      . United States v. Cates, 4 Cir., 402 F.2d 473.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis NAKALADSKI, a/k/a Louis Nash, Ettore Coco, a/k/a Eddie Coco, Defendants-Appellants.
    No. 72-3441.
    United States Court of Appeals, Fifth Circuit.
    July 6, 1973.
    Rehearings Denied July 30 and Aug. 8, 1973.

      Milton E. Grusmark, Miami Beach, Fla., for Louis Nakaladski.
    Frank Ragano, Miami, Fla., for Eddie Coco.
    Robert W. Rust, U. S. Atty., Miami, Fla., Marshall Tamor Golding, Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
   GOLDBERG, Circuit Judge:

Appellants, Louis Nakaladski, a/k/a Louis Nash [hereinafter “Nash”], and Ettore Coco, a/k/a Eddie Coco [hereinafter “Coco”], were convicted of violating various anti-loan sharking provisions of Title II of the Consumer Credit Protection Act, 18 U.S.C. § 891 et seq. Specifically, they were found guilty of: (1) conspiring to make and making extortionate extensions of credit in violation of 18 U.S.C. § 892; (2) conspiring to participate and participating in the use of an extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894; and (3) obstructing commerce by extortion in violation of the anti-racketeering provisions of the Hobbs Act, 18 U.S.C. § 1951. Appellants attack their convictions on numerous grounds; however, we find that appellants received a full and fair trial and that there is ample evidence to support their convictions. We affirm.

I. THE PROCEEDINGS BELOW

Appellants were charged in an eight-count indictment with various violations of federal laws outlawing extortionate credit practices. At the trial, the government presented evidence concerning appellants’ credit loan transactions with the two victims named in the indictment, Joel Whitiee and Richard Besóla, in order to prove the crimes charged in the indictment. The government also introduced evidence concerning similar extortionate credit transactions appellants had with other individuals in order to establish appellants’ intent and their general conspiratorial course of conduct.

Viewed in a light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704, the evidence introduced at the trial established that Coco, Nash, and one James Michael Falco were in the loan sharking business together as early as 1966. During that year they began to transact some of their business in the offices of one Harvey Goodman, a mortgage and insurance broker. Goodman testified that he heard discussions concerning the making of loans and collections. When Nash or Falco arranged to make a loan in Coco’s absence they would telephone Coco to obtain his approval. On one occasion, Falco objected to a loan that Nash wanted to make on the ground that there had been difficulties in collecting a previous loan from the prospective borrower, but when Coco said that Nash would be responsible for collecting the new loan, it was approved.

The interest on the loans that Falco, Nash, and Coco made was shown to be highly usurious: (1) a $3,000 loan was repayable at the rate of $1,000 a month for four months; (1) a $400 loan, with $200 interest, was repayable at the rate of $50 a week. At one point Nash offered to extend loans to any of Goodr man’s customers who needed money at interest rates of “up to five percent per week.”

Nash used Goodman’s office to telephone borrowers in order to make collections. Goodman testified that on at least one occasion Nash threatened a delinquent debtor by saying “you better have our money there at one o’clock or I’ll feed you your eyeballs.” In April of 1967 Nash told Goodman that he needed “another strong man to work for him for collections,” and Goodman offered to get in touch with a man named Raymond Seaman, who had a reputation “as muscle”: Nash hired Seaman, whom he later described as “a good man, except he had a big mouth.” After Seaman was found dead in a canal as a result of an automobile accident, Nash told Goodman, in the presence of Coco and Falco that Seaman “fell in the canal — nobody cared.” Goodman testified that at that time “Mr. Coco did not say anything. He just smiled.”

Appellants also advanced money to an individual named Leo Henzel. When Henzel received a $1,500 loan from Nash in November 1966, he was told “[j]ust as easy as you get it, that’s how easy we want it back.” The terms of the loans were that he was to pay $300 per week interest until he had paid back the entire principal. This loan was finally settled eight or nine months later with a $1,800 payment, by that time Henzel had already paid $4,500 to $5,000 in interest, making his total payment on the $1,500 loan between $6,300 and $6,800. When Henzel became delinquent in his payments, Nash called him and used obscene language in demanding the money. On several occasions, Nash informed him that the source of the loan money was “underworld elements, Mafia, and so forth.”

Nash also lent $2,000 to Martin Davidow in October, 1966, on the condition that Davidow pay $150 per week for twenty weeks. In December of 1966, Davidow borrowed another $3,000, the terms being that he was to pay $150 in interest and $150 on the principal, in addition to the $150 from the October loan, for a total payment of $450. In February 1967, Davidow borrowed another $3,000, on the same terms as his December 1966 loan, raising his total weekly payment to $750. A few months later, Davidow borrowed from Nash again, bringing his total loan to approximately $10,000 and his total weekly payments to approximately $900. In the middle of 1969, Davidow fell about $1,000 behind in payments and arranged with Nash to pay $250 per week interest and nothing on the principal. By this time he had paid approximately $15,000 in interest and still owed the full $10,000 principal. When Davidow fell behind in his payments, Nash told Davidow that he “had better pay and that he [Nash] was aware of the fact that . . . [Davidow] had a wife and children.” On another occasion Nash told Davidow that when a man named “Gee-Gee” had fallen behind in his payments, Nash had sent a couple of people to “straighten Gee-Gee out” by beating him up and that “Gee-Gee was making payments now.”

In June or July of 1966, Joel Whitice procured his first loan from Falco. Whitice made most of his payments to Falco, who was accompanied by Nash and Coco on a number of occasions when he came to collect from Whitice. At other times Whitice also made payments to Nash or Coco. During this time Whitice operated a retail grocery business, Food Palace, Inc., in partnership with another man, selling items manufactured in various parts of the country. His initial loan was for $10,000, which he paid back in approximately one year with weekly payments of $300. In December of 1967, Whitice borrowed another $4,000, and in June he increased his total debt to $12,000. He paid interest on these loans at the rate of $25 per $1,000 per week, and by June of 1968 his total interest payment was $300 per week. By September of 1969, Whitice had paid approximately $27,600 in interest, and still owed the full $12,000 principal.

Whitice had borrowed the money for his grocery business and he made payments from the receipts of the business. While keeping up his payments to Falco, however, he fell behind in his payments to his suppliers. In June of 1969, the major supplier filed a complaint in state court alleging defaults on securities and promissory notes and sought the appointment of a receiver to take over the operation of Whitice’s business. .After negotiations, a stipulation was entered into permitting Whitice to operate the business for an interim period, on the condition that all checks had to be counter-signed by an accountant representing the supplier. The stipulation also provided that no payments of preexisting claims or indebtedness were to be made during the interim period, but a specific exception was written in permitting the business to continue to make the weekly $300 payments to Falco because Whitice made it clear that he would not enter into any stipulation or agreement that did not allow him to continue making these payments. He explained that if he were forced to cut the payments off, it might result in harm to him or his family. The accountant representing the supplier recalled that Whitice stated that he was in fear of his life, and the supplier’s attorney recalled Whitice saying, in effect, that if he could not make the payments he might as well jump out the window. The supplier’s representatives therefore agreed to permit the payments to be made.

After the receiver took over Whitice’s grocery business, Falco visited Whitice to inquire whether the latter had any property on which he could give a mortgage. Upon receiving a negative response, Falco said that he would forget the interest if Whitice could repay the principal, whereupon he was informed that the latter had no money at all. Later, after Whitice had gone into the bail bond business, Falco asked for further payments. Around May of 1970, Falco called from New Jersey and asked that money be mailed to him, and Whitice sent a check. Still later Falco called again and told Whitice not to send any more checks, and arranged to have money picked up from time to time at Whitice’s office.

Richard Besóla, a general building contractor, also procured a loan from Falco. In 1967, he needed money, and one of his subcontractors, a man named Rappa, contacted Falco, from whom Besóla eventually received a $3,000 check. Besóla was to pay the money back within thirty or sixty days, with an additional $600 as interest. When six or seven weeks went by and Besóla had not repaid the loan, Coco visited him at his job site and told him that he had “made a deal” and had “better live up to it.” Besóla then commenced making weekly payments of $100, initially to sub-contractor Rappa, but later, after Rappa had indicated a desire not to be bothered with the matter, Besóla brought them to Coco’s house. Besóla made payments on a sporadic basis, and made approximately twenty four payments in all. About a year after Besóla first met Coco, Coco again visited him and inquired about getting the debt “squared up.” He pointed out that Besóla was at that time building a house for a banker and suggested that Besóla make an arrangement with the banker to get the loan paid off. Besóla then procured a $1997 bank loan, which was converted into a certificate of deposit which was then issued and mailed to Falco on May 29, 1968. A $2,000 certificate of deposit that Falco had purchased on April 15, 1968 was put up as collateral for the loan, and when Besóla defaulted on the loan with $300 unpaid, Falco’s collateral was cashed and applied to the loan, with the remaining $1,674.27 of the collateral being returned to Falco.

Besóla had become concerned when he was unable to make the lump sum repayment to Falco within the agreed upon thirty-to-sixty day period. He felt that he had to get the loan repaid “one way or another,” as he had become aware “after a few weeks went by that the people I borrowed from weren’t exactly bankers.” He knew, for example, that Coco had once been “involved in a shooting.” Besóla claimed that he was not personally afraid of Coco or Falco, but he was aware of the possibility that they could send “somebody out” to “put pressure” on him. His family, moreover, was worried, and communicated their fears to him and their expressed anxieties caused him anxiety and made him desire to settle the debt as soon as possible.

After a three day jury trial, at which the jury heard and considered all of the evidence concerning the foregoing transactions, the jury found appellants guilty of: (1) obstructing commerce by extorting payments from Joel Whitice in violation of the Hobbs Act, 18 U.S.C. § 1951 ;• (2) conspiring to make extortionate extensions of credit to Joel Whitice in violation of 18 U.S.C. § 892; (3) conspiring to use extortionate means to collect or to attempt to collect extensions of credit from Joel Whitice and Richard Besóla in violation of 18 U.S.C. § 894; (4) making extortionate extensions of credit to Joel Whitice in violation of 18 U.S.C. § 892; and of (5) using extortionate means to collect or to attempt to collect extensions of credit from Joel Whitice in violation of 18 U.S.C. § 894. Coco alone was convicted of using extortionate means to collect or to attempt to collect extensions of credit from Richard Besóla in violation of 18 U.S.C. § 894. Nash received concurrent sentences of ten years imprisonment on each count upon which he was convicted and was fined $5,000 on the § 1951 count. Coco received concurrent sentences of fifteen years imprisonment on each of the six counts upon which he was convicted, and was fined $10,000 on each count for a total fine of $60,000.

In this appeal, appellants jointly attack their convictions, contending that:

(1) The District Court erred in admitting the testimony of Goodman, Henzel and Davidow.
(2) The evidence was insufficient to support appellants’ convictions.
(3) The District Court erred in admitting a tape recording of a conversation appellant Coco had engaged in that was made approximately ten months after the events named in the indictment.
(4) Improper statements by witnesses prejudiced the jury and denied appellants a fair trial.
(5) The District Court erred in refusing Coco’s motion for a severance.
(6) The District Court erred in refusing Coco’s requests for a continuance.
(7) The grand and petit juries that indicted and convicted appellants were improperly selected.

II. THE GOODMAN-HENZEL-DAVIDOW TESTIMONY

Appellants contend that the trial judge erred in allowing .the government to present the testimony of Goodman, Henzel and Davidow concerning criminal transactions that were not specifically mentioned in the indictment and that occurred during time periods not covered by the indictments on the grounds that such testimony was irrelevant and prejudicial. Although evidence of criminal conduct not charged in the indictment may not be admitted if it serves solely to show the defendant’s bad character or criminal propensities, see Michelson v. United States, 1948, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168, 173-174, the testimony of Goodman, Henzel and Davidow was not admitted for that purpose. Their testimony was highly relevant, and it was admissible because it established that appellants had entered into a conspiracy to make extortionate extensions of credit and to collect payments by extortionate means as early as 1966 and that this general conspiracy was carried over into appellants’ dealings with Whitiee and Besóla. The challenged testimony illuminated the nature of the conspiracy and established that appellants were not merely fringe associates in the conspiracy, but rather intended to participate actively in that conspiracy. Thus the GoodmanHenzel-Davidow testimony was relevant and admissible to show: (1) appellants’ motive and intent in their dealings with Whitiee and Besóla; Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381, cert. denied, 1970, 398 U.S. 968, 90 S.Ct. 2177, 2178, 26 L.Ed.2d 554; Myers v. United States, 5 Cir. 1967, 377 F.2d 412; Wilkins v. United States, 5 Cir. 1967, 376 F.2d 552, cert. denied, 1968, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379; Weeks v. United States, 10 Cir. 1963, 313 F.2d 688, cert. denied, 1963, 373 U.S. 922, 83 S.Ct. 1523, 10 L.Ed.2d 421; Devoe v. United States, 8 Cir. 1939, 103 F.2d 584, cert. denied, 1939, 308 U.S. 571, 60 S.Ct. 84, 84 L.Ed. 479; (2) appellants’ method of business, their “overall modus operandi”; United States v. Haley, 8 Cir. 1971, 452 F.2d 391, cert. denied, 1972, 405 U.S. 978, 92 S.Ct. 1205, 1206, 31 L.Ed.2d 253; (3) the existence of a general conspiracy of which the conspiratorial and substantive offenses involving Whitiee and Besóla were integral parts; United States v. Restrepo, 5 Cir. 1969, 417 F.2d 927; Matthews v. United States, supra; Collins v. United States, 10 Cir. 1967, 383 F.2d 296; Devoe v. United States, supra; and (4) the relation between appellants and Falco; Devoe v. United States, supra.

III. SUFFICIENCY OF THE EVIDENCE

A. The Section 892 Convictions

Appellants were convicted of conspiring to make and making extortionate extensions of credit to Joel Whitice in violation of 18 U.S.C. § 892. An extortionate extension of credit is one in which both the creditor and the debtor understand that default or delinquency-in making payments “could result in the use of violence or other criminal means to cause harm to the person, reputation or property of any person.” 18 U.S.C. § 891(6). In order to convict appellants of conspiring to make an extortionate extension of credit, it was necessary for the government to prove only that appellants had planned and intended that Whitiee would understand the possibility that harmful consequences could be attendant upon his default or delinquency. United States v. Annoreno, 7 Cir. 1972, 460 F.2d 1303, 1309 n. 7; see Carbo v. United States, 9 Cir. 1963, 314 F.2d 718, 740-741, cert. denied, Palermo v. United States, 1964, 377 U.S. 953, 84 S. Ct. 1625, 12 L.Ed.2d 498. In order to prove the substantive violation of § 892, however, it was essential for the government to prove that Whitiee actually had such an awareness of the possible harm that could arise from default or delinquency in repaying the loans to Falco.

We find that the government carried its burden both with regard to the conspiracy count and with regard to the substantive count. The testimony clearly showed the existence of a conspiracy between Falco, Coco, and Nash to make extortionate extensions of credit, and it was entirely reasonable for the jury to find that this conspiracy embraced appellants’ dealings with Whitiee. Likewise, although the loans to Whitiee were made by Falco, appellants participated both in the conspiracy to make the extortionate loans and in the collections from Whitiee, and there can thus be no question of their culpability for the substantive crime. Pinkerton v. United States, 1946, 328 U.S. 640, 646-647, 66 S.Ct. 1180, 90 L.Ed. 1489, 1496-1497.

Appellants’ contention that the court erred in allowing witnesses to testify concerning Whitiee’s fear of the consequences of non-payment because Whitiee was available to give “direct” testimony concerning his understanding of the dangers attendant upon default or delinquency is also without merit. If in order to convict for violations of § 892, the government is required to establish the crime through the testimony of an available victim, the congressional intent to protect citizens from extortionate credit practices could be circumvented by terrorizing the victim. See United States v. DeLutro, 2 Cir. 1970, 435 F.2d 255, 256, cert. denied, 1971, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148. The testimony of an accountant and an attorney who dealt with Whitiee when he was being placed in receivership concerning Whitice’s obvious fear of missing a payment is ample “direct” evidence of Whitice’s state of mind concerning the nature of his loans. The evidence of Whitice’s state of mind was perhaps even more probative than any “direct” testimony would have been because it graphically demonstrated that he was aware that harmful consequences could arise from default or delinquency in paying the loans to Falco. See United States v. DeCarlo, 3 Cir. 1972, 458 F.2d 358, 363-365.

B. The Section 89U Convictions

In order to find appellants guilty of conspiring to use extortionate means to collect or to attempt to collect extensions of credit from Joel Whitice and Richard Besóla in violation of 18 U. 5. C. § 894 it was necessary for the jury to find that it was the intent of appellants to use threats or actual violence whenever necessary to collect payments from Whitice and Besóla. The jury was presented with ample evidence that this was the modus operandi of the enterprise in which appellants were engaged, and the finding that appellants adhered to the conspiratorial plan and conspired to use threats, and violence if necessary to collect payments from Whitice and Besóla is entirely reasonable.

There was also ample evidence to support the jury finding that appellants had knowingly participated in the express or implicit threat of the use of violence or other criminal means to cause harm to the person, reputation, or property of Joel Whitice in collecting or attempting to collect loan payments from him. As previously discussed in Part III, Subsection A, supra,, appellants were parties to the making of extortionate extensions of credit to Whitice, extensions of credit which by their very definition were based upon Whitice’s understanding that default or delinquency might result in the use of violence. Thus any collections on the extortionate extensions of credit to Whitice made by appellants, who knew of the extortionate character of the loans, necessarily involved the implicit threat of the use of violence in violation of 18 U.S.C. § 894. In short, by accepting payments from Whitice, with knowledge of the extortionate nature of his loan, appellants “participated” in an extortionate collection means within the meaning of 18 U.S.C. § 894.

C. The Section 1951 Conviction

Appellants were also convicted of obstructing interstate commerce by extorting payments from Joel Whitice in violation of the Hobbs Act, 18 U.S.C. § 1951. They contend that this conviction cannot stand because there was no showing that Whitice was in fear and because the loan to Whitice was made personally to him, and not to Food Palace, Inc., his store, which purchased articles in interstate commerce.

In order to establish a violation of the Hobbs Act it was necessary for the government to show: (1) that appellants induced Whitice to part with property; (2) that they did so through the wrongful use of actual or threatened force, violence or fear; and (3) that in so doing they adversely affected interstate commerce. United States v. Addonizio, 3 Cir. 1972, 451 F.2d 49, 59, cert. denied, 1972, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812; United States v. Tolub, 2 Cir. 1962, 309 F.2d 286. Under the Hobbs Act it is not necessary that the subject of the extortion constitute interstate commerce, or that the purpose of the extortion be to affect interstate commerce. All that is required is that trade be affected by extortion “in any way or degree,” Carbo v. United States, 9. Cir. 1963, 314 F.2d 718, 732; see United States v. Addonizio, supra, 451 F.2d at 77, and that the victim have been induced to part with property through the use of fear. United States v. Tolub, supra. As discussed in earlier portions of this opinion, there was ample evidence from which the jury could determine that appellants participated in a scheme in which Whitice was induced by a reasonable fear to make payments on his loan, and that interstate commerce was affected by his inability to make payments to suppliers who were engaged in interstate commerce.

D. Coco’s Section 89 U Conviction

Appellant Coco, alone, was indicted and convicted for using extortionate means to collect or to attempt to collect extensions of credit from Richard Besóla in violation of 18 U.S.C. § 894. He challenges this conviction on the ground that there was no evidence that Richard Besóla had ever been threatened or placed in fear in connection with the loan payments that he made to Coco. At the trial, Besóla testified that he was not personally afraid of Coco or Falco, however, he also testified that his family was in fear because of his transactions with Falco and Coco and that they communicated this anxiety to him. Moreover, Besóla testified that he was concerned about paying off his loan and that “I knew after a few weeks that the people that I borrowed money from weren’t exactly bankers.” He further testified that there was always a possibility that Falco or Coco could send somebody out to put pressure on him and that he was aware that Coco had been involved in a shooting. Although Besóla denied being in fear of Coco or Falco, the jury could reasonably have discounted this statement and found from Besola’s other testimony that Coco had participated in the collection of a loan by the use of implicit threats.

IV. THE TAPE RECORDING

Appellants contend that the District Court erred in admitting into evidence a legally obtained tape recording of a conversation that appellant Coco had with a party not involved in the indictment approximately ten months after the events charged in the indictment. In this conversation, Coco made a statement concerning what he would do to delinquent borrowers — that he would “bust their heads with his knuckles.” This tape recording was admitted only with regard to appellant Coco and only for the limited purpose of showing his intent to commit the crimes charged in the indictment. Appellants recognize the general rule that events occurring subsequent to the crime charged in the indictment are admissible to show intent, where intent is an element of the offense charged, if the events are not “too remote in point of time from the offense charged.” Matthews v. United States, supra, 407 F.2d at 1381; see United States v. Goodwin, 5 Cir. 1972, 470 F.2d 893, 899. They nevertheless contend that the tape was not admissible to show Coco’s intent for two reasons: (1) persons not named in the indictment were mentioned in the tape recording, and (2) the tape was too remote in time to the events named in the indictment. “Evidence that similar or related offenses were committed over a period of time tends to show a consistent pattern of conduct highly relevant to the issue of intent.” Gilstrap v. United States, 5 Cir. 1968, 389 F.2d 6, 9. Since intent is an element of all of the offenses for which Coco was charged, and since the tape recording contained a conversation concerning Coco’s method of dealing with delinquent borrowers, it is clear that the tape was admissible to show his intent to commit the crimes for which he was charged. Moreover, the trial court had discretion to weigh the prejudicial character of the conversation against its relevancy, United States v. Bell, 5 Cir. 1972, 457 F.2d 1231, 1237, and in light of the fact that Coco’s conversation concerned a similar criminal transaction occurring less than one year after the events charged in the indictment, we find no abuse of that discretion. See Nees v. Culbertson, 5 Cir. 1969, 406 F.2d 621, 625, cert. denied, 1969, 395 U.S. 959, 89 S.Ct. 2098, 23 L. Ed.2d 745; Miller v. United States, 5 Cir. 1968, 397 F.2d 272, 274.

V. THE “IMPROPER” TESTIMONY

Appellants allege that the District Court erred in failing to grant their motions for mistrial based upon the following testimonial incidents, which appellants claim denied them a fair trial;

(1) When government witness Goodman was asked what was said at the first time that Nash, Falco and Coco came together, he answered: “The first time I met Mr. Coco, this was with reference to seeing if I could get his probation — ” at which point the government cut him off. Appellants contend that Goodman’s voluntary statement naturally led the jury to infer that Coco had been convicted of a prior crime, see United States v. Reed, 7 Cir. 1967, 376 F.2d 226, and thus denied him a fair trial by prejudicing the jury. See Michelson v. United States, supra. The government responds that a mistrial is not warranted if the challenged testimony was blurted out by a witness, see United States v. Jacangelo, 3 Cir. 1960, 281 F. 2d 574, 576, unless there is a clear showing of prejudice. In light of the fact that Coco himself introduced a tape recording of an interview with Richard Besóla that included a clear inference that Coco had been imprisoned, we find that Coco’s substantial rights were not affected by Goodman’s testimony. See Rule 52, F.R.Crim.P.; Porter v. United States, 1958, 103 U.S.App.D.C. 385, 258 F.2d 685, cert. denied, 1959, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257. We do not in any way see how Nash’s substantial rights might have been violated.

(2) Goodman also made two conclusory statements to the effect that appellants were partners with Falco in the shylocking business. Appellants’ objections to these statements were sustained and the jury was directed to disregard them. We think that the trial judge’s timely ruling and instructions fully safeguarded appellants’ rights.

(3) Appellants allege that Goodman’s testimony concerning Seaman’s death in an automobile accident contained an implication that appellants were responsible for Seaman’s death and that their motions for a mistrial based on this testimony should therefore have been granted. Goodman testified: “I asked Mr, Nash, because I knew him best of anybody, about if he knew anything of what happened to Ray Seaman. He said, ‘Well, he fell in the canal and he had a big mouth — nobody cared.' ” Goodman then testified that “Mr. Coco did not say anything. He just smiled.” We find no error in the denial of appellants’ motions for a mistrial. Goodman’s testimony merely related appellants’ own statements and actions. Any inuendo of wrongdoing raised by Goodman’s testimony was thus derived solely from appellants’ own statements and actions and constituted admissions concerning conduct taken in furtherance of the general conspiracy. See United States v. Pierce, 5 Cir. 1969, 411 F.2d 678; Tucker v. United States, 5 Cir. 1960, 279 F.2d 62, 64; United States v. Steel, 10 Cir. 1972, 458 F.2d 1164; United States v. Alker, 3 Cir. 1958, 255 F.2d 851.

(4) Government witness Henzel testified that Nash had told him that money Henzel had borrowed from Nash “came from underworld elements, Mafia, and so forth.” Appellants claim that this testimony was so prejudicial that the Court should have declared a mistrial. Although the mention of the “Mafia” may elicit fear and distaste in the minds of the average juror, it undoubtedly may also cause such a response in the average debtor, and we find that Henzel’s testimony was so relevant to the crimes charged in the indictment that there was no error in its being considered by the jury. The fact that Nash told Henzel — an individual to whom he had lent money at exorbitant rates — that the money came from the “Mafia” was quite relevant in showing Nash’s intent to put Henzel in fear and in showing the method of operation of the conspiracy. Any prejudice that might have been aroused through the use of the term “Mafia” was insignificant in comparison with the probative value of the fact that Nash used that term, and we find that the District Court did not abuse its discretion in striking the balance between relevancy and prejudice. United States v. Bell, supra. We therefore reject appellants’ challenge to the fairness of their trial based upon the introduction of “improper” testimony.

VI. COCO’S MOTION FOR A SEVERANCE

Appellant Coco contends that the District Court erred in refusing to grant his motion for a separate trial. He contends that four statements Nash made to FBI investigators exculpated him and that he was prejudiced by his inability to call Nash to the stand to question him concerning the statements.

The grant or denial of a motion for a separate trial under Rule 14 F.R.Crim.P. is largely a .matter for the discretion of the trial judge. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 37. Only if the defendant can demonstrate a clear showing of prejudice resulting in the denial of a fair trial will the discretionary ruling of the trial judge be reversed on appeal. United States v. Iacovetti, 5 Cir. 1972, 466 F.2d 1147, 1153; Smith v. United States, supra. Coco did not make a convincing showing that Nash would be more likely to give exculpatory testimony for Coco if the trials were severed, Byrd v. Wainwright, 5 Cir. 1970, 428 F.2d 1017, 1022, and we find that the District Court did not abuse its discretion in denying Coco’s motion for a separate trial. United States v. Iacovetti, supra, 466 F.2d at 1153; Smith v. United States, supra, 385 F.2d at 38.

Relying on DeLuna v. United States, 5 Cir. 1962, 308 F.2d 140, Coco also contends that a separate trial should have been granted so that in the event that Nash took the stand and claimed the Fifth Amendment, Coco would have been able to urge the jury to draw favorable inferences from Nash’s refusal to testify. The DeLuna ruling, which recognized the right of defendants in certain circumstances to comment on the failure of a co-defendant to testify, is, however, limited only to those occasions where the defendants’ defenses are based on mutually exclusive theories of guilt, United States v. Hyde, 5 Cir. 1971, 448 F.2d 815, 832, cert. denied, 1972, 404 U.S. 1058, 92 S.Ct. 736, 737, 30 L.Ed.2d 745, that would create a duty upon counsel to comment upon the refusal of the other defendant to testify. Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, cert. denied, 1969, 395 U. S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769. No such mutually exclusive defense theories are presented in the instant prosecution.

VII. COCO’S MOTION FOR A CONTINUANCE

Near the close of the trial Coco moved for a two hour continuance or for permission to reopen so that he could introduce rebuttal testimony from Richard Besola’s son. Coco alleged that he was taken by surprise when Richard Besóla testified that his family had been fearful because of his dealing with Coco and Falco because Besóla had denied any fear in a pre-trial conversation with Coco’s attorney. Coco alleged that Richard Besola’s son would testify that the family was not in fear. The Court denied Coco’s motions on the grounds that (1) there was no surprise, and (2) Coco could have subpoenaed the son either before the trial began or on the evening prior to the close of the trial, immediately after he was allegedly “surprised.” After considering (1) the text of Richard Besola’s pretrial conversation with Coco’s attorney, (2) his “surprise” trial testimony, (3) a transcript of Besola’s son’s allegedly contradictory remarks, and (4) Coco’s attorney’s statements concerning the failure to timely subpoena Besola’s son, we do not find that the trial court erred in determining that Coco was not surprised and that he had failed to exercise due diligence in subpoenaing Besola’s son. We therefore hold that the District Court did not abuse its discretion in denying Coco’s motion for a continuance, United States v. Roca-Alvarez, 5 Cir. 1971, 451 F.2d 843, and his motion to reopen. United States v. Burger, 5 Cir. 1969, 419 F.2d 1293.

VIII. THE GRAND AND PETIT JURY- PANELS

Appellants’ final contention is that they were denied a fair trial because the grand and petit jury selection methods utilized at the time and place of their indictment and trial excluded two groups of potential jurors: young voters and Cuban Americans. This argument has been considered at length and rejected by this Circuit in United States v. Gooding, 5 Cir. 1973, 473 F.2d 425, and we are bound by the rationale and decision in that case.

IX. CONCLUSION

Appellants have raised a skillful but unconvincing multifaceted attack on their convictions. Being firmly convinced that appellants received a fair trial and that the jury’s verdict was supported by the evidence, we affirm.

Affirmed.

      . 18 U.S.C. § 891(6) defines an extortionate extension of credit as :
      “any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.”

      . 18 U.S.C. § 891(7) defines an extortionate means of collection as :
      “any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.”

      . James Michael Falco was indicted with appellants but is apparently a fugitive and was not tried with appellants.

      . Appellants have joined in each other’s. assignment of error. Our dispositions of their assignments jointly in no way represents a ruling on the standing of each to assert the errors relied upon by the other.

      . Appellants also contend that the Goodman, Henzel, Davidow testimony should not have been admitted because these individuals were not named in the indictment and appellants were consequently unable to prepare for trial. In effect, appellants are complaining because the government failed to provide them with a list of prospective witnesses and with information sought in their motion for a bill of particulars. We find no abuse of the trial court’s discretion in its refusal to require the government to provide a list of witnesses, United States v. Moseley, 5 Cir. 1971, 450 F.2d 506, 510; United States v. Hancock, 5 Cir. 1971, 441 F.2d 1285, cert. denied, 1971, 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63; O’Neal v. United States, 5 Cir. 1969, 411 F.2d 131, cert. denied, 1969, 396 U.S. 827, 90 S.Ct. 72, 24 L.Ed.2d 77, or in its refusal to grant appellants’ motions for bills of particulars in their entirety. Hickman v. United States, 5 Cir. 1969, 406 F.2d 414, 415, cert. denied, 1969, 394 U.S. 960, 89 S.Ct. 1309, 22 L.Ed.2d 561.

      , In Carbo v. United States, supra, the court held that an extortionate transaction which affected a contract between a professional prize fighter and his manager, as well as the prize fighter’s earnings, had sufficient effect on interstate commerce to support a Hobbs Act conviction because the interstate business of promoting professional championship boxing contests was affected in some degree by extortion aimed at obtaining control of a professional fighter. 314 F.2d at 732.

      . There are numerous reasons why the jury could discount Besola’s direct denial of fear and infer from his other testimony concerning the loan transaction that he had been implicitly threatened. For example, two logical explanations might be that: (1) his denials of fear were merely the bravado of a man anxious to maintain his maoMsmo; or (2) his denials of fear were induced by a fear of testifying adversely to an individual who was known to him to be of a violent character.

      . Appellants reliance on the acquittals in United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, Carbo v. United States, supra, and United States v. Webb, 6 Cir. 1966, 359 F.2d 558, is unfounded. In all of those cases the conspiratorial convictions were reversed because there was no showing of a knowing • participation in the charged illegal conspiratorial plan. In the case before us there is ample evidence that appellants knowingly adhered to and participated in the conspiratorial and substantive offenses charged.

      . In Miller v. United States, supra, this Circuit approved the admission of evidence concerning an uncharged illegal transaction in order to show the accused’s intent, even though the crime had occurred five years prior to the crime under consideration.

      . Assuming that there is an inuendo of wrongdoing in appellants’ statement and actions, they do not constitute confessions to the crimes charged, but rather admissions concerning the general conspiracy, which were probative of appellants’ intent to use force in furtherance of the conspiracy, and thus we are not faced with any of the problems raised by the admission of a co-defendant’s confession to the crimes charged. See Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

      . At trial, the only showing that Coco made that Nash might testify is contained in the following colloquy between Coco’s attorney and Nash’s attorney:
      Coco’s attorney: “Are you saying now that if the Court were to grant a severance and your client, Mr. Nash, were tried first and if he were acquitted, that he would subsequently testify in Mr. Coco’s trial?”
      Nash’s attorney: “I am saying if that course of events took place, that there would certainly be serious consideration of his testifying.”
      On these facts, Coco’s contention of prejudice is at best speculative, since Nash would only consider testifying if he were acquitted, and “[w]e do not conjecture abuses of discretion.” Smith v. United States, supra, 385 F.2d at 38.