author: FIELD, Circuit Judge:

text:
    UNITED STATES BOARD OF PAROLE, Petitioner, v. Honorable Robert R. MERHIGE, Jr., and Honorable Albert V. Bryan, Jr., Respondents. UNITED STATES BOARD OF PAROLE, Petitioner, v. Honorable Robert R. MERHIGE, Respondent.
    Nos. 72-2324, 73-1134.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1973.
    Decided Sept. 26, 1973.
    Addendum Nov. 8, 1973.

      David G. Lowe, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., Henry E. Petersen, Asst. Atty. Gen., Jerome M. Feit and George S. Kopp, Attys., Crim. Div., Dept. of Justice, and Joseph A. Barry, Legal Counsel, United States Bd. of Parole, Washington, D. C., on brief), for petitioner United States Board of Parole.
    Alvin J. Bronstein, Washington, D. C., (Philip J. Hirschkop, Alexandria, Va., on brief), for respondents Robert R. Merhige, Jr., and Albert V. Bryan, Jr.
    Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

The United States Board of Parole has filed two petitions seeking writs of mandamus; the first, directing- the respondents, Judges of the United States District Court for the Eastern District of Virginia, to vacate an order authorizing the taking of the depositions of the members of the Youth Division of the United States Board of Parole; and the second, directing the respondents to vacate an order requiring the Board to answer written interrogatories pertaining to parole determinations made in certain cases involving inmates in ten federal institutions. The orders in question were entered in the case of Bernard J. Novak, et al, v. Gary McCune, et al, Civil Action No. 421-72, in the Richmond Division of the Eastern District of Virginia.

That action was originally instituted by Novak as a class action against the Warden of the Federal Reformatory at Petersburg, Virginia, and the Board of Parole seeking injunctive and declaratory relief after he had been denied consideration for an early parole release. Novak alleged that his application for parole had not been considered in accordance with the regulations of the Board of Parole and, additionally, claimed that he was entitled to (a) access to the substance of the parole hearing examiner’s recommendations and report; (b) an opportunity to respond to any adverse aspects of the report; and (c) a statement of the grounds upon which parole was denied. After a hearing respondent Merhige denied Novak’s motion for a preliminary injunction, but concluded that the complaint presented a justiciable controversy and that the entertainment of jurisdiction thereof was appropriate.

Incident to the matters considered at this hearing Judge Merhige declined to quash the notice for the taking of the depositions of the members of the Youth Division of the Board of Parole and these depositions were thereafter scheduled to be taken sometime in mid-October, 1972. Subsequent to this hearing, however, the Board of Parole gave further consideration to Novak’s request and ultimately Novak’s release on parole was advanced to an effective date of October 4, 1972.

Thereafter, the case came on for further hearing before Judge Bryan on October 17, 1972, at which time counsel for the Board of Parole moved to quash the taking of the depositions on the ground that Novak’s parole had mooted the issues raised in his complaint. However, the plaintiff-intervenors, George Rouil-lard, John Leonard and David O’Neill, had moved for leave to intervene as plaintiffs and tendered their complaint in intervention as being representative of the claims of the class embraced in the original complaint of Novak. Counsel for the Board of Parole advised the court that he did not oppose the motion to intervene and thereupon Judge Bryan denied the motion to vacate the notice of depositions upon the basis that they were appropriate for consideration upon the question as to whether or not the action was maintainable as a class action.

Shortly thereafter the plaintiff-inter-venors served on the defendants a set of interrogatories seeking information relating to the parole consideration given the three plaintiff-intervenors and twenty-two additional inmates of the Peters-burg Reformatory. These interrogatories contained a series of thirty-one questions relating to the parole process and decisions of the Board. The Board responded to thirty of the interrogatories with respect to the three plaintiff-intervenors, but declined to answer the interrogatories relative to the other twenty-two inmates. The Board also declined to answer the thirty-first question which requested “the names and institutional numbers of all inmates at the Federal Reformatory at Petersburg, Virginia, who have been denied parole release either by way of continuation, set-off or outright denial since January 1, 1971.” Thereafter the Board was served with a second and third series of interrogatories relative to an additional thirty-one and twenty-eight inmates, respectively. The second set of interrogatories addressed itself to inmates of the Reformatory at Petersburg, and the third sought information with respect to inmates of nine other federal institutions. The Board declined to answer the questions in the second and third series of interrogatories whereupon the plaintiffs moved for an order compelling the defendants to answer. After a hearing on this motion on January 17, 1973, Judge Merhige ordered the defendants to answer all questions contained in each set of interrogatories within ten days thereof. It is this order to which the second petition of the Board is addressed.

Assuming that the depositions of the Youth Division were appropriate in Novak’s case, his release on parole unquestionably mooted the issues raised in his complaint and, nothing more appearing, the notice for the taking of the depositions should properly have been vacated. The question remaining, however, is whether the depositions, as well as the series of interrogatories, are appropriate in the light of the allegations of the plaintiff-intervenors.

A review of the complaint in intervention indicates only that the three intervenors are inmates of the Federal Reformatory at Petersburg and that they have been denied release on parole. Unlike Novak, they do not allege that their applications for parole were not considered by the Board in accordance with its regulations. Rather, the various grounds for relief assigned by them represent nothing more than a broad-front challenge of the federal parole procedure including the contention, among others, that the regulations promulgated by the Board, 28 C.F.R. §§ 2.1 et seq., are at variance with the statutory grant of parole authority under 18 U.S.C. §§ 4201 et seq. The allegations of the complaint in intervention raise only questions of law and we fail to see any necessity for extensive evidentiary development, particularly the depositions of the members of the Youth Division as well as the exhaustive interrogatories, for determination of the issues raised therein.

As heretofore stated the district court concluded that Novak’s complaint presented a justiciable controversy, and in reaching this conclusion the court placed primary reliance upon the panel decision in Scarpa v. U. S. Board of Parole, 468 F.2d 31 (5 Cir. 1972). The complaint in Scarpa, which was strikingly similar to the one at'hand, was summarily dismissed by the district court for failure to state a justiciable issue upon which relief could be granted. Upon appeal the panel, one judge dissenting, reversed. Subsequent to the filing of the petitions in the present case, however, the Fifth Circuit, sitting in banc, reversed the decision of the panel and affirmed the action of the district court. Scarpa v. U. S. Board of Parole, 477 F.2d 278 (5 Cir. 1973). In so doing the court reaffirmed its decision in Tarlton v. Clark, 441 F.2d 384 (5 Cir. 1971), wherein it had stated:

“By the language of Title 18 U.S.C. A. § 4203, the Board of Parole is given absolute discretion in matters of parole. The courts are without power to grant a parole or to determine judicially eligibility for parole. United States v. Frederick, 405 F.2d 129 (3rd Cir. 1968). Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of application for parole or to review the credibility of reports and information received by the Board in making its determination.” 441 F.2d 385.

In adhering to its prior position, the Fifth Circuit was in accord with the clear weight of authority. Buchanan v. Clark, 446 F.2d 1379 (5 Cir. 1971), cert, denied 404 U.S. 979, 92 S.Ct. 347, 30 L. Ed.2d 294 (1971); Thompkins v. U. S. Board of Parole, 427 F.2d 222 (5 Cir. 1970); Brest v. Ciccone, 371 F.2d 981 (8 Cir. 1967); Cagle v. Harris, 349 F.2d 404 (8 Cir. 1965). We also note that this court gave short shrift to a case of a similar nature in Bozell v. United States, 199 F.2d 449 (4 Cir. 1952).

The foregoing eases recognize the unique discretion committed to the Board under 18 U.S.C. § 4203, and the necessity for the confidentiality of its records. In our opinion, the members of the Board or the Youth Division should be subjected to depositions under only exceptional circumstances, and we perceive no such circumstances in this case. Similarly, we find no justification for subjecting the Board to the burden of answering the broad range of interrogatories submitted by the plaintiffs. The scope of the interrogatories bears little, if any, relation to the questions of law which the plaintiffs seek to raise, and to permit them to probe into the parole consideration of seventy-eight federal prisoners who are not parties to this suit would, in our opinion, violate the recognized confidentiality of the Board’s records and place an unreasonable burden on the parole authorities. Chief Judge Brown recognized the judicial folly of such a course in his concurring opinion in Scarpa when he stated:

“It is easy to say that some character of factual hearing must be had to determine whether these eonclusory allegations are supportable. But to apply mechanically procedural rules appropriate to an ordinary damage suit to the situation of prisoner parole problems imperils the parole structure and its beneficent aims. With unrestricted access to the nearest Federal Court and the ease with which denial of broad constitutional claims can be asserted, the prison-parole authorities might have to answer almost daily the complaints of numberless prisoners dissatisfied with the progress or lack of progress with their current requests. Federal Courts must, of course, be open to prisoners. But unless access to a Court is to become an illusion from the judicial system being powerless to act from the sheer volume of such claims, we must be certain when importuned to interfere that the complaint realistically read shows arbitrary action constituting abuse of administrative discretion.” 477 F.2d at 283.

Recognizing as we do that the depositions and interrogatories authorized by the respondents were inappropriate in this case where the complaint rests upon such a tenuous jurisdictional basis, we feel that mandamus is appropriate. The traditional view that mandamus should be confined to instances of clear error going to the question of jurisdiction or power of the lower courts has been supplemented and expanded by the Supreme Court in its decisions in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), and LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). In LaBuy the Court affirmed the issuance of a writ of mandamus by the Seventh Circuit where “the supervisory control of the District Courts by the Courts of Appeals is necessary to the proper judicial administration of the federal system.” 352 U.S. at 259-260, 77 S.Ct.. at 315. In Schlagenhauf, the Court approved the issuance of the writ to vacate an order of the district court which authorized the oppressive use of Rule 35 of the Federal Rules of Civil Procedure. We feel that the petitions of the 'Board in the present ease fall within the rationale of both of these decisions.

We find nothing in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L. Ed.2d 305 (1967), cited by the plaintiffs, which militates against our conclusion. The decision in Will dealt with an order in a criminal case and upon its particular facts was characterized by the Court as “a writ without rationale.” The somewhat limited scope of that decision is illustrated by the concurrence of Mr. Justice Black who stated that while finality was “relevant to the right of appeal [it] is not determinative of the question when to issue mandamus. Rather than hinging on this abstruse and infinitely uncertain term, the issuance of the writ of mandamus is proper where a court finds exceptional circumstances to support such an order.” 389 U.S. at 108, 88 S.Ct. at 280. While some courts have continued to cling to the more restrictive and inflexible concept of mandamus, this court specifically declined to follow them in United States v. Hemphill, 369 F.2d 539 (4 Cir. 1966). We adhere to that position and since we find the orders of the respondents to be clearly erroneous and that compliance therewith would effect a disruptive and unwarranted intrusion upon the records and resources of the Board of Parole, the writs of mandamus will issue in accordance with the prayers of the petitions.

ADDENDUM

Shortly after our opinion in this case was filed the Supreme Court (Mr. Justice Douglas dissenting) by order of October 9, 1973, granted certiorari in Scarpa v. United States Board of Parole, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44. By its order the Court vacated the judgment and remanded the ease to the United States Court of Appeals for the Fifth Circuit for consideration of the question of mootness. We do not feel that this disposition of Scarpa by the Supreme Court indicates any disapproval of the substance of the in banc decision of the Fifth Circuit in that case.

      . Intervenor Rouillard presents certain factual allegations but the nature of them rests within his own knowledge.

      . 18 U.S.C. § 4203 reads in pertinent part: “(a) If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” (Emphasis supplied.)

      . See Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595, 600-601 (1973) ; 9 Moore’s Federal Practice 1f 110.26 at 283-284 (2d ed. 1973).

      . In his opinion in the case of In Re Josephson, 218 F.2d 174 (1 Cir. 1954) Chief Judge Magruder gives an interesting and informative history of the use of mandamus by the federal appellate courts and criticizes the expansion of the writ. See also Bank Line v. United States, 163 F.2d 133 (2 Oir. 1947). Of. dissenting opinion of Judge Lumbard in United States v. DiStefano, 464 F.2d 845, 851 (2 Cir. 1972).


source: Caselaw Access Project

author: WILLIAM E. DOYLE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jackson Willie GANT, Defendant-Appellant.
    No. 73-1287.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 14, 1973.
    Decided Oct. 24, 1973.

      J. Terry Wiggins, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    A. Thomas Elliott, Jr., Denver, Colo., for defendant-appellant.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

Defendant-appellant was charged in a four-count indictment, three counts of which described the distribution of cocaine and one count of which charged him with knowingly and intentionally possessing cocaine with intent to distribute it contrary to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On February 1, 1973 the jury convicted him on all four counts. The present appeal seeks reversal based on alleged trial errors plus alleged erroneous rulings on pretrial motions.

On the date of trial, January 30, 1973, the defendant filed an additional motion seeking a severance from that of his co-defendant, Rebecca Doyle. The trial court denied this as being untimely. The motion for severance was renewed at the end of all of the evidence and again the judge denied it.

The main issue on this appeal arises from the refusal of the court to grant a severance or mistrial, the contention being that the testimony of Rebecca Doyle in her own defense was antagonistic to the position of appellant and highly prejudicial. Other alleged trial errors concern the court’s rulings on the extent of the cross-examination of the defendant-appellant, the allowing of the attorney for the eodefendant Doyle to ask leading questions and the failure of the trial court to limit the effect of the testimony of the codefendant in respect to the defendant-appellant. There are still other alleged errors, but these will not be considered here for they lack substance.

There were four different transactions in which I. H. Allen, Special Agent for the Bureau of Narcotics and Dangerous Drugs, paid Gant a total of approximately $7,100 ($1,100 in the first transaction; $1,000 in the second transaction ; $5,000 in the third; and none in the fourth when the arrest took place). Previously he had flashed a roll of bills in the amount of $35,000 to one Richard Doyle in San Francisco in the expectation that this would be communicated to one “Jack.”

During June 1972 Allen went to San Francisco and there met Richard Doyle for the purpose of purchasing a large quantity of cocaine. Although appellant was contemplated as the source of supply, Allen did not on that occasion deal with him. Subsequently, in September 1972, Richard Doyle contacted Allen concerning the purchase of cocaine and Doyle then arranged for him to meet defendant-appellant and Rebecca Doyle at Stapleton Airport in Denver. After that they all went to a hotel where the sale of cocaine was negotiated. The amount on that occasion was 51 grams, but Gant told Allen that he was capable of supplying larger quantities. Later in September there was another transaction at Stouffer’s Inn near the airport in Denver, where 143 grams of cocaine were sold by Gant to Allen for the sum of $4,200. An additional $1,000 was paid to defendant as a final payment on the September 9 transaction. Then, on September 22, Rebecca Doyle brought approximately six ounces of cocaine to Denver for sale to Allen at the Stouf-fer’s Inn. There she telephoned Gant in San Francisco to discuss the price, and Allen ultimately paid her $5,000.

A subsequent transaction occurred on October 3 at which time defendant-appellant and Rebecca Doyle again came to Denver. On this occasion they met in a hotel room and defendant-appellant undertook to teach Allen how to dilute the cocaine by mixing it with another substance. While this was going on the two defendants were arrested.

Defendant-appellant’s position throughout the trial was that he had been induced to commit these offenses by the large amount of money which Allen had agreed to spend. Gant testified that he had never sold any cocaine before.

Defendant-appellant’s codefendant, Rebecca Doyle, testified in her own behalf and said that she was a heroin addict and that defendant-appellant had supplied her with cocaine and heroin. She also said that she had been forced to engage in prostitution by the defendant-appellant in order to pay for the heroin and that he had forced her into participating in the sale of the cocaine involved in this case. Defendant-appellant also maintains that the lateness in raising the severance issue is not his fault — that the nature of Rebecca Doyle’s defense was not brought to his attention until the very day of the trial.

The court did consider the renewed motion for severance at the close of all of the evidence and in this light again denied it.

I.

Defendant-appellant vigorously objects to the court’s action in allowing Rebecca Doyle to testify that defendant-appellant had previously furnished her with heroin and had coerced her into prostitution and into the cocaine traffic by withholding heroin from her and by use of force. Although the relevancy of this testimony would have been questionable in the government’s ease, it assumed logical relevance after the defendant had testified to the effect that he had not previously sold cocaine or been involved-with heroin. Rebecca Doyle’s testimony would have been proper in rebuttal even if she had not been tried with appellant. See King v. United States, 402 F.2d 289 (10th Cir. 1968). Where such an issue is presented, collateral offenses can be shown to refute the evidence given. See Moran v. United States, 404 F.2d 663 (10th Cir. 1968). Moreover, predisposition to commit the crime charged in the information is relevant evidence when the accused has raised the defense of entrapment. See United States v. Abbadessa, 470 F.2d 1333 (10th Cir. 1972).

II.

One further matter: the motion for severance was not filed until the day of the trial, that is, January 30, 1973. It recited that counsel for the appellant had not received the information until January 28, 1973, two days prior to its filing. In addition, the motion was conclusory and did not disclose any details of the testimony which Rebecca Doyle intended to give. Furthermore, the record does not reveal that counsel for the appellant expanded on the motion shown above in his argument. It is not surprising, therefore, that the trial court ruled that it was not timely filed. The trial proceeded and the court heard all of the evidence as did the jury. After presentation of the testimony counsel for appellant moved for a mistrial and renewed the motion for severance. This was submitted without any argument and again the judge denied it (without comment). At the time that the court’s charge was being prep'ared, counsel for appellant proposed and submitted an instruction which would have told the jury to disregard the evidence of Rebecca Doyle and not consider it against the appellant (defendant at the trial). The trial court quite properly rejected this instruction for the obvious reason that this testimony was not wholly irrelevant as far as the appellant was concerned and although the government did not offer it (it was offered on behalf of Rebecca Doyle), it should have been at liberty to utilize it to the extent that it related to the issues which were being tried. To be sure, it was prejudicial to the appellant’s cause, but it was not prejudicial in the sense that it was incompetent or irrelevant or violative of a positive rule of evidence. It was not error for the trial court to reject the proposed instruction.

The question remains whether the trial court should have prepared its own instruction telling the jury that the defendant could not be tried for and convicted of any charge not contained in the indictment and that the evidence of Rebecca Doyle could be considered by the jury against appellant only to the extent that it related to the defense of entrapment and tended to show predisposition to commit the offenses charged in the indictment. Such an instruction was not given, but we do not detect error in the trial court’s failure to compose and give such an instruction because we do not see prejudice in allowing the testimony to be generally considered by the júry against appellant. There was an ample sufficiency of evidence offered by the government in its main case establishing that the appellant had repeatedly engaged in the sale of narcotics. It also was apparent that Rebecca Doyle was his confederate in these sales. Appellant and Rebecca Doyle were traveling together in California and in Denver for the purpose of transporting narcotics and so evidence to the effect that defendant had dispensed heroin to his codefendant, Rebecca Doyle, could not produce surprise or have had prejudicial capability in view of the evi-dentiary background of selling cocaine. So, therefore, we do not perceive that the failure of the trial court to compose and submit a limiting instruction constituted plain error. See United States v. Napue, 401 F.2d 107 (7th Cir. 1968), cert, denied, 393 U.S. 1024, 89 S.Ct. 634, 21 L.Ed.2d 568 (1969); United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), cert, denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966).

It follows from what we have said that we perceive no error in the trial court’s denial of the motion for severance. This is peculiarly within the discretion of the trial court under the terms of Rule 14 and the cases. See United States v. Austin, 462 F.2d 724 at 733 (10th Cir. 1972) and United States v. Troutman, 458 F.2d 217 at 221 (10th Cir. 1972) and the cases there cited. See also 8 Moore’s Federal Practice 14.04 and Lowther v. United States, 455 F.2d 657 (10th Cir.), cert, denied 93 S.Ct. 139 (1972).

In the final analysis the evidence in this case, as we have previously indicated, is so strong that prejudice is difficult to find. After all, this defendant was no small pusher. He was engaged in wholesale transportation of cocaine in job lots, not once but numerous times. In view of this, we fail to see that he suffered from the evidence or from the lack of any limiting instruction.

III.

We have examined the numerous other complaints offered by appellant as a basis for reversal. As to the trial court’s orders restricting the cross-examination of agent Allen, while at the same time allowing the government to cross-examine Gant extensively, we need only say that these are rulings which are peculiarly susceptible to trial court decision; also, these are matters with which appellate courts cannot effectively deal. The same is true of the order of the court allowing the defendant Doyle to sit close to the jury when she gave her testimony.

Counsel for Gant also argues that the trial court should have prevented the attorney for codefendant Doyle from asking excessive leading questions. From the record it appears that a genuine effort was made by the trial court to prevent this and the judge finally gave up, apparently being of the opinion that counsel for Doyle was unable to ask a question which was. not leading. We are at a loss to know what a trial court can do when faced with this condition. The judge sought to prevent it and to help the attorney, and he did everything short of taking over the examination himself. We fail to see this as a source of error on the judge’s part, and we fail also to see that there was any prejudice to the appellant arising from this.

The rulings with, respect to illegal search have been considered and do not furnish any basis for reversal.

Finally, the court did not err in denying the appellant’s pretrial motion for a copy of the Grand Jury testimony.

Appellant’s counsel has conscientiously and painstakingly presented the numerous points which he regarded as sufficient to justify reversal. But from a study of the record as a whole and a consideration of the specific items advanced, we are of the opinion that the •points raised do not call for reversal.

The judgment should be and the same is hereby affirmed.

      . The entire body of the motion is as follows :
      1. The defendant, Jackson Willie Gant, through his attorney herein, has been recently informed on January 28, 1973 by counsel for his co-defendant, Rebecca Anne Doyle a/k/a Becky Royale, that she intends to rely at trial upon a defense antagonistic and inconsistent with the defense or defenses upon which the Defendant Gant intends to rely.
      2. The trial together of such antagonistic and inconsistent defenses would result in prejudice to the Defendant Gant and is likely to distract and confuse the jury, also to this Defendant’s prejudice.

      . This instruction was as follows :
      In certain instances evidence may be admitted only for a particular purpose, and not generally. Rebecca Doyle’s testimony relating to her use of heroin, that the Defendant Gant allegedly supplied her with heroin, that Defendant Gant allegedly struck her, and that she engaged in prostitution allegedly at Defendant Gant’s request, is admitted as material as to her defense of duress only and is not admitted in connection with the issues of whether the Defendant Jackson Gant is guilty of distributing cocaine or was entrapped into doing so and have no bearing upon those issues at all.

      . We recognize that it is awkward for a trial court to have to appraise a severance problem at the beginning of a trial without any evidence, and following this to have to have a continuing obligation to consider whether a severance should be granted as the trial unfolds. United States v. Dinneen, 463 F.2d 1036 (10th Cir. ,1972) recognizes that the trial court does have this continuing duty to determine whether prejudice requires the granting of severance.- In Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960), the Supreme Court articulated this viewpoint in a case in which the issue was misjoinder of defendants. The Court said that the judge was not required to grant a severance following the dismissal of the conspiracy count which seemingly was a source of joint evidence and effort of the defendants. The Supreme Court considered it important that proper limiting instructions were given in that case.

      . In United States v. Napue, supra, the Court of Appeals for the Seventh Circuit dealt with the problem of failure of the trial court to give a limiting instruction. The court pointed out that
      * * * some instruction (not necessarily in the form offered by the defense) on mistaken identity would have been better practice here, but we find its omission in the circumstances of this case to be mere harmless error. * * *
      401 F.2d at 112. In that case the trial judge refused to give an instruction tendered by the defendant on the ground that it was argumentative. The trial judge had ruled that counsel could argue these questions to the jury. Thereafter, the attorneys argued the question and the court felt that the attorneys’ arguments compensated somewhat for the lack of an instruction.
      Somewhat similarly, in our ease, counsel for appellant vigorously argued the limited relevancy of the evidence in question. The record shows the following:
      * * * There is all this testimony about heroin, distributing heroin, but he never distributed heroin to Agent Allen. If he had all this heroin he was giving to Rebecca, why wasn’t some heroin sold to Agent Allen? The only one who talked with Agent Allen or who said she was bringing heroin was Rebecca, and Agent Allen testified that heroin was never brought.
      Now, Jack Gant is not on trial here for allegedly giving heroin to Rebecca Doyle or allegedly involving her in prostitution or for allegedly striking her. None of this is true. None of this would be relevant to anything if he were on trial here alone, and in my view you should disregard this except as it relates to her defense. She has raised the defense of duress.

      . The trial court reproached counsel for Rebecca Doyle as follows:
      Well look, you are just completely leading this witness, and for a day and a half I have been trying to tell you how you should do it, and, please, please, this is a sensitive area, now, don’t lead the witness. Let the witness testify.
      He further commented:
      I am criticizing you because you are asking her leading questions. You are testifying in effect, counsel. Let the witness testify.
      Again he explained:
      Well now you are leading her. Do you know what a leading question is?
      And again:
      you don’t put words in her mouth. I have told you and told you and told you.
      Finally, in response to an objection by counsel, for defendant-appellant, that the questions were still leading, the trial judge acknowledged :
      I know it, but he can’t do it any differently. Go on.