author: JAMES HUNTER, III, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Roberto CRUZ, Appellant.
    No. 72-1274.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 31, 1973.
    Decided April 25, 1973.

      Leroy A. Mercer, Christiansted, St. Croix, V. I., for appellant.
    Joel D. Sacks, U. S. Atty., Julio A. Brady, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

The defendant Roberto Cruz was convicted on February 10, 1972, by a jury in the district court of the Virgin Islands of selling heroin in violation of 19 V.I.C. § 604(a). His motion for a judgment of acquittal or, in the alternative, for a new trial was denied by the district court, and he was sentenced to ten-to-fifteen years in prison with a special three year parole term in addition thereto. 19 V.I.C. § 604(b)(1)(A). This appeal followed and we affirm.

A brief summary of the evidence is appropriate. On October 6, 1971, the Joint Narcotics Strike Force on St. Croix employed one Carlos Encarnación to purchase narcotics from suspected pushers and to be available as a witness against them at trial. Detective Jose Perez, head of the St. Croix Strike Force, testified that Encarnación was informed on October 8, 1971 that he was to attempt to make a buy from one of four men, including the defendant, the next night during a Puerto Rican and Cruzan Friendship Day celebration at a lagoon near Christiansted. At about 8:00 p. m. on October 9, Encarnación was strip searched by the police and given fifty dollars. He was then driven to the lagoon where he saw Cruz whom he knew from a methadone program which they both attended. According to En-carnación, he approached Cruz who was with a woman and said “hello, how is everything,” whereupon Cruz asked him if he wanted to buy any drugs. Encarna-ción responded “yes”, and he and the defendant went into a parking lot where Encarnación purchased five decks of heroin for fifty dollars. After smoking a marijuana cigarette with Cruz, En-carnación walked back to where Perez was waiting and gave him the five heroin decks. Encarnación was then taken a short distance away and was again strip searched with nothing being found. Patrolman Jackson, who trailed Encar-nación at the lagoon, testified that he observed the transaction with Cruz but could not see how much money changed hands.

The defendant admitted selling heroin to Encarnación, but he argued at trial that he was illegally entrapped into doing so. According to Cruz, on the day before the sale he, Encarnación and a friend named Tomas Robles met after their methadone program and decided to go to a parade ground to smoke marijuana. Encarnación shared some marijuana with them, and then he asked the defendant to get him some heroin because methadone was not helping him. Cruz testified that at first he refused and told Encarnación that he did not want to be involved with drugs any more, but that he eventually agreed to do. it after En-carnación kept saying how “bad” he felt. Cruz said that he then went to a pusher who gave him some heroin on credit, and that he sold his heroin to Encarnación' without profit for twenty-five dollars. Robles was a witness for the defense and testified that on the day before the sale he heard Encarnación ask Cruz to get drugs for him. Mrs. Cruz also testified that Encarnación approached her husband at the lagoon and asked him “did you bring the tin.”

As rebuttal, the government recalled Encarnación who denied having requested the defendant to get heroin for him on the day before the sale. In addition, detective Perez was recalled and he testified that it was his decision to have Encarnación attempt to make a purchase at the lagoon on October 9 and that En-carnación was not informed of this plan until between nine and ten o’clock the night before.

Defendant’s first contention on this appeal is that he was deprived of a fair and impartial jury trial since a majority of the jurors had also been jurors in at least one of several previous narcotics cases involving the same informer, Carlos Encarnación. During the jury voir dire, the defendant made two oral motions which were denied by the district court: first, to disqualify for cause those members of the jury array who had served in any prior trial where Encarnación had testified; and second, to disqualify for cause those members of the array who had served in either of two very recent narcotics trials where Encarnación had testified and where the defendants had been found guilty. The rationale behind both of these motions was the defendant’s belief that jurors who had sat on such earlier cases had already formed an impression about the credibility of Encarnación. Prior to these motions, the district court had determined which members of the array had participated in the earlier cases, and both the court and the defendant’s attorney had asked them collectively whether they could judge the evidence in this case without reference to any other trial. Only one person indicated that his judgment would be influenced by what he had heard before, and he did not sit in this case. Although the defendant claims that it was prejudicial error to deny his motions, we recently decided in Government of the Virgin Islands v. De Jesus, 476 F.2d 771 (3d Cir. 1973), and Government of the Virgin Islands v. Hendricks, 476 F.2d 776 (3d Cir. 1973) that the mere fact that a juror has sat on a prior case involving similar issues and some of the same witnesses does not, absent some showing of resulting prejudice, disqualify the juror. Since there was no showing of actual prejudice here, we reject the defendant’s contention that the district court erred in its rulings on this point.

A second argument advanced by the defendant is that the trial judge wrongfully denied his motion for a mistrial after detective Perez testified on redirect examination that it would be impossible to use Encarnación again because he would be shot. The specific question and answer occurred as follows:

Prosecutor: “Detective Perez, why is it that you would not use Encarna-ción again?”
Perez: “It is impossible to use Mr. Encarnación again because of what is going to happen, he is going to get shot, he is going to get killed on the street.”

The defense immediately objected to this answer, and the trial judge ordered it struck from the record and cautioned the jury to disregard it. The defense then asked for a side bar conference and moved for a mistrial, but the trial judge refused to grant the motion on the ground that he did not believe that the answer was overly prejudicial to the defendant.

On this appeal, the defendant claims that detective Perez’ statement caused him irreparable harm and that the trial judge therefore abused his discretion in denying a mistrial. We disagree. During cross-examination, defense counsel questioned Perez at some length about the number of cases on which Encarna-' cion had worked, the amount he was paid, and whether or not he would be used in the future as an informer. On redirect, the government asked Perez to explain why Encarnación would not be used again. The wording of his response was unfortunate, but it made no reference to the defendant in any way. In view of this, and considering the fact that the jury already knew from the cross-examination that Encarnación was an informer in at least seven different narcotics investigations, we do not think that Perez’ reply prejudiced the defendant’s substantial rights. Consequently, we conclude that the trial judge’s curative instructions were proper and that a mistrial was not necessary. See, e. g., Leonard v. United States, 386 F.2d 423 (5th Cir. 1967).

The defendant next urges that the evidence was insufficient to support a conviction since he established a defense of entrapment which was not refuted beyond a reasonable doubt by the government. Since the jury returned a verdict of guilty, it is fundamental that we must view the evidence in the light most favorable to the government. E. g., United States v. Miles, 468 F.2d 482 (3d Cir. 1972); United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971). After reviewing the record, we think that the jury could easily have disbelieved the defendant’s story and found no entrapment. The defendant does not appear to have been a persuasive witness, and his testimony lacked credibility in several significant respects. For example, he insisted that he and Encarnación had been friends since they were “small,” but he did not know where Encarnación lived as a youth and had never been to his house. Another notable inconsistency was the defendant’s testimony on direct examination that he got drugs for Encarna-ción because he looked “bad” or “sick,” while on cross-examination he stated that Encarnación was “not so sick like a junkie” and admitted that he procured the heroin and sold it to Encarnación because he was a “good friend.” In addition, detective Perez testified that he did not inform Encarnación of the plan to attempt a purchase at the lagoon until between 9:00 p. m. and 10:00 p. m. the night before, yet the defendant said that Encarnación approached him earlier on that same day. In the absence of any significant evidence to support the defendant’s story, and taking all the evidence into consideration, we conclude that the jury could find that the government proved beyond a reasonable doubt that no entrapment occurred in this case.

The next contention raised by the defendant concerns the district court’s charge on entrapment. Defendant’s requested instruction number eight was specifically approved in Pratti v. United States, 389 F.2d 660 (9th Cir. 1968), which held that when entrapment is an issue, the jury must be charged that the burden of showing that there is no entrapment is on the government. Instead of giving this instruction, the district court charged the jury as follows:

“In determining whether any fact or issue has been proven by a preponderance of the evidence in the case the Jury may, unless otherwise instructed —and I do not otherwise instruct you— the Jury may consider the testimony of the witnesses regardless of who may have called them and all exhibits received in evidence. If then the Jury should find beyond a reasonable doubt from the evidence in the ease that before anything at all occurred respecting the alleged offense involved in the case, the accused was ready and willing to commit a crime, such as charged in the information, whenever oppoi'tunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment.
“On the other hand, if the Jury should find from the evidence in this case that the accused had no previous intention or purpose to commit any offense of the character here charged and did so only because he was induced or persuaded by some agent- of the Government — and in this case it would have been the informant — then the defense of unlawful entrapment is a good defense and the Jury should acquit the accused.” (Emphasis added.)

In Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), the case upon which Pratti is based, the Ninth Circuit held that an instruction almost identical to the one above constituted reversible error because it could have created the erroneous impression in some jurors’ minds that the accused carried the burden of proof as to the positive elements of an entrapment defense. Moreover, the Notaro court said that it must be made clear to the jury that the accused is “entitled to be acquitted if, from the evidence, the jury, because of the entertainment of reasonable doubt, should be unable to ‘find’ that the necessary elements of the defense had not been excluded.” 363 F.2d at 176. This must be made explicit even though the jury is properly informed in a general instruction as to the burden of proof which rests upon the prosecution.

Although Notaro has not been specifically adopted by this Circuit, we would follow it and reverse the district court here if the defendant had timely objected to the court’s charge as required by Rule 30, Fed.R.Crim.P. While the defendant acknowledges that he did not object to the entrapment charge after it was read to the jury, he argues that there was no point in doing so since he had already made his objections known in chambers. Aside from the fact that we can find no in-chambers record to support defendant’s claim, we cannot permit Rule 80 to be circumvented in this way. If on appeal a party intends to assert errors in the charge, he must lay the proper foundation by taking exceptions in the trial court before the jury leaves to begin its deliberations. Otherwise, Rule 30 precludes us from considering his arguments unless plain error exists. Rule 52(b), Fed.R.Crim.P.

The defendant next asserts that it was in fact plain error for the district court not to charge in conformance with Notaro. This argument, however, was rejected in United States v. Conversano, 412 F.2d 1143 (3d Cir. 1969), where this court, in the face of a similar entrapment charge not excepted to, declined to invoke the plain error rule. Accord, United States v. Levin, 443 F.2d 1101 (8th Cir. 1971), and Esposito v. United States, 436 F.2d 603 (9th Cir. 1970). Since we believe that the present entrapment charge, if taken as a whole, did not mislead the jury, we see no reason to depart from our position in Conversano. Consequently, we find that the defendant has not established that the district court committed plain error in refusing to give his requested instruction number eight.

In his reply brief, the defendant makes the additional argument that the district court’s charge on entrapment was improper because it contained the phrases “lawful entrapment” and “unlawful entrapment.” Since the defendant did not object to the court’s charge on this point, and since he requested an instruction with the same phrases, he can only prevail if the use of these phrases constituted plain error. We conclude that it did not. Defendant relies on United States v. Hayes, 441 F.2d 542 (10th Cir. 1971), where the Tenth Circuit found that a trial judge committed plain error in instructing a jury regarding a concept of “lawful” versus “unlawful” entrapment. Hayes is distinguishable from the present case, however, because in Hayes the district court failed to follow earlier Tenth Circuit decisions which had held that it was erroneous to use the word “unlawful” preceding entrapment in a jury charge. Martinez v. United States, 373 F.2d 810 (10th Cir. 1967), and Garcia v. United States, 373 F.2d 806 (10th Cir. 1967). In the Third Circuit, on the other hand, there are no such precedents, and there is even dicta approving the “lawful-unlawful” distinction. United States v. Laverick, 348 F.2d 708 (3d Cir. 1965). Consequently, although we believe that it would be preferable to avoid phrases like “lawful entrapment” and “unlawful entrapment” when charging a jury, we do not think that their use amounted to plain error so as to warrant consideration in the absence of a timely objection.

Defendant next urges that the sentence which he received — ten to fifteen years in prison plus a special three year parole term — was excessive and disproportionate to the offense. While this sentence is a long one, it is within the limits determined by the legislature and, therefore, not subject to review here. Government of the Virgin Islands v. Hendricks, 476 F.2d 776 at p. 780 (3d Cir. 1973), and the cases cited therein. We note, however, that defendant may apply under F.R.Crim.P. 35 for a reduction of sentence after the issuance of this court’s mandate.

The defendant also argues on this appeal that the district court improperly admitted the testimony of the Assistant Attorney General of the Virgin Islands and that a conviction cannot be obtained on the testimony of a convicted forger (Encarnación) who has other felony charges pending against him. After considering the record, the briefs and oral argument, we reject these contentions as being without merit.

The judgment of the district court will be affirmed.

      . Encarnación was a convicted forger who was apparently also under indictment for at least two other felonies during the time he was working for the Strike Force. He had been a drug addict for several years, and it is unclear from the evidence whether he was still an addict in the fall of 1971. He was hospitalized for a heroin overdose about three months before this trial began, but Dr. De Ohabert, head of the methadone treatment program which Encarnación had been attending since early 1969, testified that Encarnación was detoxified and not an addict at the time of trial.

      . In his brief at 5-7, defendant also contends that lie moved the court to disqualify those members of the panel who had sat on recent narcotics cases involving the same police officers as well as the same informer. Our examination of the transcript of the jury voir dire reveals that defendant’s motion in this regard referred only to the informer and not to the police officers. Transcript of the Voir Dire at 15-16. Consequently, we have limited our discussion to the motion that was actually made.

      . This case was decided with Government of the Virgin Islands v. Williams, 476 F.2d 771 (3d Cir. 1973).

      . This instruction stated :
      “A COMPLETE DEFENSE to the charges is that of entrapment. It is the DUTY of the Government to satisfy you— BEYOND A REASONABLE DOUBT— that the defendant was not entrapped into committing the acts which, if there were no entrapment, would constitute the offense (s).
      “If the Government fails to convince you beyond a reasonable doubt that the defendant was not entrapped into committing the offense (s), then you must find the defendant not guilty on both counts.”

      . It should be noted that the Devitt and Blaekmar instruction on entrainment now conforms with the Notaro approach. See the last two paragraphs of 1 E. Devitt and C. Blaekmar, Federal Jury Practice & Instructions, § 13.13 (2d ed. 1970), which read as follows:
      “If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was afforded, and that Government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.
      “On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to acquit him.”
      This is the type of instruction which should be used in the future by district courts in this circuit when entrapment is offered as a defense. See generally United States v. Silver, 457 F.2d 1217 (3d Cir. 1972), which deals comprehensively with other aspects of a proper entrapment charge.

      . In the cited case, this court, speaking through Judge Ganey, said:
      “ . . . Although he charged that the burden was on the prosecution to prove beyond a reasonable doubt that defendant was guilty of each element of the crime for which he was accused, he did not- tell them that this same burden was also on the Government to establish that entrapment did not occur. However, no point for charge was submitted concerning it nor was any. objection made to the charge of the court at the close thereof, and we see no reason, under these circumstances, to invoke the Plain Error Rule, Federal Rule of Criminal Procedure 52(b), and, accordingly, absent any objection by the defendant, no substantial rights of his were affected as to warrant consideration without such objection. Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) ; Reid v. United States, 334 F.2d 915-917 (C.A. 9, 1964) ; Martinez v. United States, 300 F.2d 9-10 (C.A. 10, 1962).
      “While it has been held that the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped when that defense is properly raised, United States v. Landry, 257 F.2d 425 (C.A. 7, 1958), it also has been held that the trial court’s refusal to so charge upon request is reversible error, Pratti v. United States, 389 F.2d 660 (C.A. 9, 1968), but we reiterate that since no objection to the charge on this point was made, we, therefore, must deem the general instructions given on the burden of proof to be broad enough to have covered the issue of entrapment. United States v. Salas, 387 F.2d 121 (C.A. 2, 1967).” (Emphasis added.) 412 F.2d at 1149.

      . We agree with the Ninth Circuit that jury instructions on entrapment rise to the level of plain error only if “they are so vague and ambiguous as to permit the jury to misinterpret the allocation of the burden and quantum of proof.” Pulido v. United States, 425 F.2d 1391, 1394 (9th Cir. 1970). We are satisfied in the present case that the entrapment instructions, if taken as a whole, set out proper standards and did not confuse the jury.

      . We note that the present Devitt and Blackmar instruction on entrapment makes no reference to “lawful entrapment.” 1 E. Devitt and C. Blackmar, supra at note 5.


source: Caselaw Access Project

author: DURFEE, Senior Judge.

license: Public Domain

text:
    Gloria M. LOHMAN, Appellee, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellant, and Federal Deposit Insurance Corporation and Federal Deposit Insurance Company as Statutory Receiver of Cedar Vale National Bank, Appellees.
    No. 72-1123.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1972.
    Decided April 20, 1973.

      Jac Chambliss, Chattanooga, Tenn., for appellant.
    Robert Vogel, Mandan, N. D., and Lloyd C. Richardson, Jr., Aberdeen, S. D., for appellees.
    Before GIBSON, Circuit Judge, LAY, Circuit Judge, and DURFEE, Senior Judge of the United States Court of Claims.

       Senior Judge James R. Durfee of the United States Oourt of Claims is sitting by designation.

   DURFEE, Senior Judge.

This is an appeal from a judgment of the United States District Court for the District of South Dakota, Northern Division, in favor of plaintiff-appellee, Gloria M. Lohman, and the additional defendant-appellees, Federal Deposit Insurance Corporation and Federal Deposit Insurance Company as Statutory Receiver of Cedar Vale National Bank, and against defendant-appellant, General American Life Insurance Company.

The action was' brought by Gloria Lohman as plaintiff on a double indemnity policy of insurance issued by defendant-appellant on the life of her deceased husband, William D. Lohman.

The FDIC had notified defendant it claimed the principal sum. When the case was removed from a state court to a Federal court, the FDIC was made a party by interpleader and the sum of $100,000.00 plus accrued interest was paid into court.

The FDIC counterclaimed against plaintiff to collect approximately $1.5 million in bogus notes at Cedar Vale National Bank in Kansas, alleging plaintiff and her husband were parties to the fraud, and that the entire estate was liable therefor. The FDIC also cross-claimed against defendant praying that the court impress a “constructive equitable trust” in its favor, and grant judgment for all funds owing under the insurance policy issued by defendant.

At the trial, the only issue for the jury was whether Lohman’s death was accidental. The jury found that the death was accidental, and judgment was entered against defendant-appellant on the verdict. We affirm.

Before discussing the facts and merits of the case, we shall deal with a procedural question raised by appellant as the first issue of its appeal.

After a dismissal of plaintiff’s ease by order of April 16, 1971, of the District Court, plaintiff filed notice of appeal with this court, which dismissed the appeal by order of June 15, 1971, on motion by defendant, plaintiff having failed to perfect her appeal pursuant to Rule 30(b), Federal Rules of Appellate Procedure and local Rules 8 and 13. Thereafter, plaintiff filed a motion in the District Court to amend the order of the District Court dismissing her complaint so that she could reinstate her case. On October 15, 1971, the trial court made findings of fact as to the rights of plaintiff to maintain her action, and concluded that its prior order of dismissal was void under Rule 60(b)(4) Federal Rules of Civil Procedure, and that: “Gloria M. Lohman’s original status as plaintiff in this action, be, and it is hereby shown and established as having had continuous existence since the time this action was commenced.”

Appellant submits (1) that the District Court was without jurisdiction to act under Rule 60(b) upon plaintiff’s motion to amend that court’s order dismissing the complaint; (2) that the District Court did not have the power to “deviate” from this court’s prior mandate of dismissal of the appeal when permission to proceed was not obtained from the Eighth Circuit Court of Appeals; and (3) that the District Court erred in holding that its previous order of dismissal under Rules 37 and 41(b) was void under Rule 6^(b)(4), Federal Rules of Civil Procedure. We deal with these arguments in the order presented.

For its proposition that the District Court was without jurisdiction to act under Rule 60(b), appellant relies chiefly upon Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940) where Judge Sanborn said, as to a decision by this court on appeal with remand to the District Court:

A mandate is completely controlling as to all matters within its compass, but on remand the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal. (Footnote omitted). Since, however, a final judgment upon the merits concludes the parties as to all issues which were or could have been decided (Guettel v. United States, 8th Cir., 95 F.2d 229, 230, 118 A.L.R. 1060 and cases cited), it is obvious that such a judgment of this court on appeal puts all such issues out of the reach of the trial court on the remand of the case. * * * [Emphasis supplied].

Appellant argues that the former decision of this court dismissing plaintiff’s appeal was a final judgment on the merits, and therefore the District Court was without jurisdiction further to consider any issues.

First of all, it is clear that the District Court’s initial decision was not a judgment on the merits. Even if this appellate court had fully considered the initial decision of the trial court, we in turn would not have been rendering a final judgment on the merits.

Rule 41(b) Provides:

Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule * operates as an adjudication upon the merits. [Emphasis supplied].

The District Court in its order for dismissal did “otherwise specify” by finding that plaintiff had failed to comply with the court’s order to compel plaintiff to answer interrogatories, as ordered pursuant to Rules 37 and 41(b) of the Federal Rules of Civil Procedure.

A similar situation was presented in Madden v. Perry, 264 F.2d 169, 175 (7th Cir. 1959) where the court said:

We hold that, under Rule 41(b), Judge Perry, having in the order for dismissal specified the grounds therefor, which, as to the locals (Unions) did not involve the merits of the case, the dismissal order does not operate as an adjudication upon the merits.

When the appeal from the dismissal first came to this court, we did not even go so far as to consider the grounds for the dismissal. This court ordered dismissal of the appeal on the technical ground urged in motion by General American. Dismissal on this technical ground can hardly be considered a “final judgment on the merits” as required by Thornton, supra. The mandate of this court dismissing plaintiff’s appeal neither “encompassed” nor “disposed of” any of the issues subsequently considered by the District Court.

Appellant’s reliance on Butcher & Sherrerd v. Welsh, 206 F.2d 259 (3rd Cir. 1953), cert. denied, Alker v. Butcher & Sherrerd, 346 U.S. 925, 74 S.Ct. 312, 98 L.Ed. 418, reh. denied, 347 U.S. 924, 74 S.Ct. 513, 98 L.Ed. 1078, reh. denied, 347 U.S. 940, 74 S.Ct. 626, 98 L.Ed. 1089, reh. denied, 348 U.S. 939, 75 S.Ct. 354, 99 L.Ed. 736, vacated on other grounds 223 F.2d 262 (3rd Cir.), is misplaced. In that case there was an initial decision on the merits by the trial court and the trial court’s judgment was affirmed on the merits, 151 F.2d 907 (3rd Cir. 1945). The case of Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960) is similarly not on point. In that case the trial court granted defendant’s motion for judgment n. o. v. after a trial and jury verdict. The Court of Appeals, considering the merits of the case, reversed and remanded with directions to enter judgment pursuant to the reinstated jury verdict.

Our case falls within the class of cases described in 7 Moore’s Federal Practice (1972 ed.), 60.30 [2], at page 424:

And first, we shall consider the case where the appeal is dismissed, without a decision on the issues. * * * Since there is no problem of deviating from the appellate court’s mandate and since the appeal no longer pends, the district court has the power to entertain a timely motion for relief under 60(b).

Appellant’s second contention that the District Court did not have the power to alter or deviate from this court’s prior mandate of dismissal of the appeal when permission to proceed was not obtained from this court, is equally without merit. To repeat the language in Thornton, supra, 109 F.2d at 320:

* * * A mandate is completely controlling as to all matters within its compass, but on remand the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal. (Footnote omitted). [Emphasis added].

Further elaboration is provided m 7 Moore’s Federal Practice (1972 ed.), 60.-30 [2] at 425, 426:

* * * The authorities seem uniform that a mandate from a reviewing court is controlling as to all matters within the compass of such mandate and as to such matters the district court, after remand, can take no further action. At times a motion for relief will not raise matters that are within the compass of the mandate, and in that event the district court clearly has the power to proceed with the 60(b) motion without leave of the appellate court.

We additionally find no fault in the procedure whereby plaintiff sought to vacate dismissal of her complaint. See Stebbins v. State Farm Mutual Automobile Insurance Co., 134 U.S.App.D.C. 193, 413 F.2d 1100 (1969), cert. denied, 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173 (1969). See also Mooney v. Central Motor Lines, 222 F.2d 569 (6th Cir. 1955); Hubbard v. Baltimore & Ohio R. R. Co., 249 F.2d 885 (6th Cir. 1957).

Last, appellant argues that the District Court erred in holding that its order of dismissal dated April 16, 1971, was void, vacating its prior order under Rule 60(b)(4), F.R.C.P. We agree with appellant that a District Court has power to dismiss a plaintiff’s suit for repeated failure to comply with court orders requiring discovery. This, however, does not settle the issue. Although it undisputedly had jurisdiction of person and subject matter, the District Court apparently considered its prior order of dismissal void because, under the circumstances of the case, the dismissal was tantamount to a denial of due process of law.

It is not our task in this case to consider anew whether or not the former order of dismissal was tantamount to a violation of due process but rather to ascertain whether or not the District Court abused its discretion in judging its former order void. The District Court clearly had power to grant relief under Rule 60(b). The grant of relief involved an appraisal of the facts. Such an appraisal and grant of relief are largely within the discretion of the trial court. See Assman v. Fleming, 159 F.2d 332 (8th Cir. 1947); Conerly v. Flower, 410 F.2d 941 (8th Cir. 1969). There has been no clear showing of abuse of discretion. Farmers Co-op. Elevator Ass’n Non-Stock v. Strand, 382 F.2d 224 (8th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). We therefore have no reason to find the District Court in error in vacating its former order of dismissal of the complaint.

Accordingly, we conclude that the District Court’s order of October 15, 1971, vacating and setting aside the former order of dismissal of plaintiff’s complaint, was a valid and proper exercise of the trial court’s jurisdiction and authority.

At the trial, the basic issue of fact was whether Lohman’s death was accidental. Defendant never expressly interposed suicide as an affirmative defense to its liability for double indemnity under the policy, but defended on the theory that plaintiff could not carry the burden of proving that Lohman’s death was accidental under the terms of the policy.

There was an extensive trial and many conflicts between the testimony of many witnesses as to the life and death of William D. Lohman. Most of these conflicts were obviously determined in favor of plaintiff-appellee by the jury in finding that his death was accidental. In our discussion of the other issues presented, we will deal with the facts in more detail, but in essence, they are as follows: William D. Lohman died on July 10', 1967, and it is stipulated that he died of a gunshot wound, that there were no eye witnesses to his death, and that the insurance policy which is the subject of this suit was in effect on the date of death, with premiums paid up to that time. He had been a rancher all his life. He was in good health. He was happily married and had two children, both of whom had finished high school and were working. His living habits were simple and inexpensive, and he did not gamble. He was engaged in extensive ranching operations, and owned thousands of acres in North Dakota and Canada in a partnership called the L & O Cattle Company. In July 1967 Lohman and his partner became heavily indebted to the Cedar Vale National Bank of Kansas for large amounts of money obtained through notes, some of which bore false or bogus signatures. During the week before his death, he was trying unsuccessfully to borrow over half a million dollars to repay partnership indebtedness, and mentioned going to jail or being indicted in this connection. At the time of Lohman’s death his estate was insolvent. There was some testimony that he appeared depressed that week, but most of the witnesses testified that there was no change in his attitude or disposition, and that he was making extensive plans for the future up to the time of his death.

On July 10th, after returning from a business trip to Montana, the Lohman couple drove to the home of their ranch’s caretaker to get a pickup truck. William Lohman took the truck and a Winchester 308 rifle. He said that he intended to look at some livestock, and maybe shoot an antelope, and then meet his wife in a couple of hours in nearby Mobridge, South Dakota. The truck was found the next morning on a hill overlooking a watercourse on the ranch where antelope were sometimes found. The door of the truck was open on the driver’s side, and the motor running. The body of William D. Lohman was lying on the ground a few feet from the open door with the gun nearby with one shell discharged and another in the clip. The gunshot wound was in the middle of the forehead, with the path of the bullet going directly into and through the middle of Lohman’s cranium.

Appellant submits that the evidence was not sufficient to go to the jury on the issue of the cause of Lohman’s death; that plaintiff-appellee’s case is inconsistent with any plausible or reasonable theory of accident whatsoever; that a verdict of accidental death could only be based upon speculation and conjectures; and that the trial court erred in failing to direct a verdict and the jury’s verdict cannot be sustained on appeal.

Two highly qualified and experienced experts, Dr. Weeht and Mr. McDonnell, testified that there was nothing about the fatal wound to indicate that it was a contact wound, indicating suicide. These two witnesses and others testified that the weapon could have been discharged while Lohman was slipping, falling or stumbling on a smooth moss-covered rock directly below the open door where he could have stepped in leaving the truck, or while he was pulling the rifle from the truck to shoot an antelope. From these conclusions and their consideration of all the other relevant facts, both of these expert witnesses expressed the opinion that death by accident was more likely than death by suicide. There was considerable opposing expert testimony that this was a contact wound and self-inflicted, but the weight of this testimony was for the jury to determine. The jury obviously accepted the testimony of plaintiff’s witnesses as showing a reasonable theory, consistent with the facts, that Lohman’s death occurred by accident. The trial court was not in error in failing to direct a verdict for defendant-appellant since there was sufficient evidence to go to the jury, and the evidence was sufficient to sustain the jury’s verdict that Lohman’s death was accidental.

Plaintiff was not required to prove the exact causation of the accident, but only that the death was caused by “external, violent and accidental means” as required for double indemnity by the insurance policy. Svenson v. Mutual Life Insurance Co. of New York, 87 F.2d 441 (8th Cir. 1937).

In instruction (16), the court charged the jury to find for plaintiff “if under this record you find William D. Lohman’s death to have been caused by an accident, and otherwise for defendant insurance company if you find his death not to have been caused by accident, or under this record, a suicide.” Defendant excepted to instruction (16) and requested that the court amplify and correct its instruction in accordance with the leading South Dakota case of Headlee v. New York Life Insurance Co., 69 S.D. 499, 12 N.W.2d 313 (1943). Specifically, defendant requested that the coui’t add to the above quoted instruction these words: “bearing in mind that if the evidence leaves their minds in such doubt that they are unable to decide the point, the verdict should be against the party upon whom persuasion rests.”

There is a clear distinction between the jury instructions held to be erroneous in Headlee, supra, and the instruction given in the present case. In Head-lee, the South Dakota Supreme Court stated, at 315:

The trial court instructed the jury, first that the burden of proof was upon the plaintiff to prove that Robert’s death resulted solely from accidental means, and second, that the burden of proof was upon the defendant to prove that the death was by self-destruction. We believe this second part of the instruction was error occasioned by a failure to distinguish this action, which is based upon the double indemnity clause of the life insurance policy, from the action in which the insurer in a life policy raises the defense of self-destruction to the regular life indemnity. [Emphasis supplied].

In the court’s instruction (16) excepted to in the present case, the trial court was not discussing burden of proof, and nowhere did it say the “burden of proof was upon the defendant to prove that the death was by self-destruction,” as in Headlee, supra. On the contrary, the trial court did give the proper instructions that the burden of proof was upon plaintiff to prove that the death was accidental. Although defendant in theory did not expressly plead suicide as a defense, it clearly raised the issue of suicide by the presentation of its evidence and cross-examination throughout the trial. If the jury had found the evidence equally balanced between accidental death and suicide, it would have been governed by the court’s repeated instruction that “the burden is on Gloria (plaintiff) by a preponderance of the evidence, to show the death to have been caused by accident.”

Defendant cites New York Life Insurance Co. v. Anderson, 66 F.2d 705 (8th Cir. 1933) where an instruction that the jury should find for plaintiff if the evidence is equally balanced was specifically disapproved. No such instruction was given here.

The court very properly ruled that adding the requested language to the instructions would be “too much detail and give too much emphasis on the point. And it’s actually within the court’s instruction relating to burden of proof and, for that reason, is overruled.”

Appellant asserts that the District Court erred in overruling its Motion for a Mistrial. The motion was based upon the supposed cumulative effect (a) of testimony given by plaintiff which appellant claims was hearsay and prejudicial, and (b) of certain statements by counsel for the FDIC before the jury. To dispose of this claimed error, it is useful at this point to explain more fully the FDIC’s interest in this suit.

Before the instant suit was started, the FDIC had filed a creditor’s claim against the estate of William Lohman for $1,460,538.66. The claim in part arose out of a “Guarantee Agreement,” signed by Lohman to repay indebtedness due the Cedar Vale National Bank. The probate court issued an order on the claim allowing $580,954.61 with interest. The balance of the claim was left open by the probate court for further proof.

Defendant General American, by its crossbill for interpleader, first brought the FDIC into this action as additional defendants. Thereafter, the FDIC in its own right crossclaimed against General American Life Insurance Company both as to the monies paid into court and for the monies due by reason of the double indemnity provision of the policy, claiming that a large portion of the insurance premium paid on the General American policy had been paid out of funds wrongfully obtained by William Lohman from the Cedar Vale National Bank for which FDIC was thereafter acting as receiver. The FDIC also counterclaimed against plaintiff Gloria Lohman, asserting three counterclaims among which it alleged its claim filed against the estate of William D. Lohman in the total amount of $1,460,538.66 plus interest.

The matter of the “Guarantee Agreement” was first opened up in cross-examination of plaintiff by defendant General American’s counsel as to the FDIC claim in the probate court and plaintiff’s contesting the claim. On redirect examination the court allowed Gloria Lohman to testify, over defendant’s hearsay objection, about her husband’s understanding that the “Guarantee Agreement” was not binding upon him if the bank closed.

Counsel for FDIC then cross-examined plaintiff on the same subject matter. No objections were raised by General American at the time of this complained of testimony, and no motion was made for a mistrial until later, after the FDIC had withdrawn part of its claim against the estate. Appellant claims that Gloria Lohman knew nothing about the agreement until after Mr. Lohman’s death and never talked with him about it.

Evidence as to whether the Guarantee Agreement signed by Lohman and his partner was to become ineffective if the bank closed, was given not only by plaintiff’s testimony, but by two other witnesses present when the guaranty was given. They also testified that they understood at the time this transaction was made that the guaranty was to be ineffective as to Lohman if the bank closed, and it did close shortly thereafter. Plaintiff’s testimony as to her husband’s knowledge of the agreement was therefore only cumulative and not prejudicial.

Defendant General American asserts further prejudice by the fact that after plaintiff’s testimony, counsel for FDIC stated to the jury that “by reason of our investigations” he was authorized to withdraw the contingent claim in the sum of the balance due by virtue of the Guarantee Agreement in the probate court. This statement, defendant Claims, “was deliberately designed to show Lohman’s innocence and thus, lack of motive for suicide. It introduced a collateral matter which had no proper place in the case.” If it was a collateral matter, General American first brought it into the case by its own cross-examination of plaintiff in its obvious effort to prove that Lohman’s financial troubles contributed to his alleged suicide.

It was only after General American had been permitted to go into the FDIC’s claims and amounts thereof, including the amounts of unallowed and unproven claims filed in the probate court, that counsel for FDIC stated for the record that its contingent or unal-lowed claims against the estate would be dismissed. The FDIC, having asserted the claim in one of its counterclaims against plaintiff Mrs. Lohman, could most certainly withdraw and dismiss it.

After FDIC announced to the jury that the contingent claim would be dismissed and the dismissal filed with the probate court in Walworth County, it was made perfectly clear that the allowed portion of the claim in the neighborhood of $580,000.00 plus interest was left against the estate and the trial court thereafter instructed the jury to “disregard completely the comments made by counsel for the FDIC as to the contingent claim having been withdrawn.” The trial court further commented to the jury that, “Those are matters which are for the court to decide later and have no particular bearing, I don’t think, on either aspect of the case of either accidental death or the defense. I think I will leave it that way and I think that will correct any possibility of misunderstanding on the part of the jury.” These instructions and comments to the jury certainly corrected any possible error claimed by appellant.

In Chicago & N. W. Ry. Co., v. Kelly, 74 F.2d 31 (8th Cir. 1934) plaintiff there was suing for personal injuries. He testified and his counsel alluded to his family responsibilities. Numerous objections were sustained to this testimony, and numerous exceptions noted to those allusions and arguments by counsel for plaintiff. Although this court reversed the trial court’s judgment for plaintiff because of these repeated and deliberate acts of misconduct by plaintiff’s counsel, it said at 35:

The court made no mention of the subject-matter of these objections in the charge to the jury.
The admission of testimony showing family responsibilities usually has been held error. (Citations omitted). Whether the admission of such testimony is reversible error largely depends on whether it has created passion and prejudice in the minds of the jury. Courts should exercise great caution in setting aside judgments because of inadvertent remarks made by litigants or counsel during a hotly contested trial, even though improper, unless it clearly appears that they aroused the sympathy or prejudice of the jury and influenced the verdict. [Emphasis supplied].

Even if we were to accept General American’s contention that the testimony of Gloria Lohman and the statements by FDIC hereinabove discussed were inadmissible, it does not clearly appear “that they aroused the sympathy or prejudice of the jury and influenced the verdict,” in the words of Chicago & N. W. Ry. Co., supra. This is even more evident in view of the court’s comments and admonitions to the jury that these matters had no particular bearing on accidental death and “to disregard completely the comments- by counsel for the FDIC as to the contingent claim having been withdrawn.” The trial court was acting well within the limits of sound discretion in denying defendant General American’s belated motions for mistrial.

Defendant also moved the trial court to dismiss the FDIC or limit its participation in the trial after FDIC entered into a pre-trial, court-approved settlement agreement with plaintiff, the terms of which made it a co-plaintiff with Gloria Lohman. This motion was denied. Defendant asserts error.

Defendant’s position is that FDIC had no independent claim against it after the settlement agreement; that its rights are the same as plaintiff Gloria Loh-man’s rights; and that the only question left was whether plaintiff was entitled to recover against General American. Appellant argues that to allow FDIC to remain a party gave plaintiff and FDIC the advantage of double cross-examination of all defense witnesses, since their interests were the same.

By its cross-bill for interpleader, by its cross-claim against defendant and in its counterclaims against plaintiff, FDIC consistently maintained its independent right to the life insurance proceeds against defendant. The cross-claim is based upon the undisputed fact that part of the funds used to pay the premium for General American’s policy of insurance on the life of the deceased, William D. Lohman, were misappropriated monies of the Cedar Vale National Bank, of which FDIC subsequently became receiver. A constructive trust in favor of FDIC resulted, which gave to FDIC as cestui que trust the option to enforce the trust against the proceeds of the policy or to claim an equitable lien upon them. The general rule is stated in Vorlander v. Keyes, 1 F.2d 67, 69 (8th Cir. 1924):

* * * not only the property which the trustee acquires with the misappropriated funds, but all its fruits, in every form, its increase, its income, other property acquired by the trustee by the exchange or use of it in any way, become, at the option of the ces-tui que trust, his property * * *. [Emphasis supplied].
See also 38 A.L.R. 930, 24 A.L.R.2d 672 and Bogert on Trusts, 2nd Ed., Section 925.

The rights of FDIC were not dependent or derivative on or from the rights of plaintiff. Defendant states that it can find no authority precisely in point, and concedes that “Rule 21 F.R.C.P.” gives the trial court a broad discretion in the matter of dropping or adding parties. In denying defendant’s motion to dismiss the FDIC or limit its participation, the trial court was clearly within the limits of its broad discretion.

Defendant also assigns as error the denial of its motion for a directed verdict as to FDIC for failure to prove any claim against General American. From our preceding analysis of the evidence and contentions by defendant, it is clear that FDIC sustained its own burden of proof, and we need not repeat our conclusions in this regard. The trial court did not err in denying defendant’s motion for a directed verdict as to FDIC.

Finally, defendant argues that the cumulative effect of all of the foregoing errors alleged by it, and other errors of the trial court, was prejudicial to General American, under the principle that although individual errors may not establish prejudice, they may in combination equal substantial prejudice, impelling a reversal.

We have examined these other alleged errors, most of which involve narrow and isolated evidentiary rulings by the trial court, whose cumulative effect is claimed to be prejudicial to appellant. We find that these alleged errors, neither individually nor in tandem, resulted in such prejudice. Only one of these claimed errors merits discussion.

Defendant assigns as an instance of cumulative error the admission into evidence of a certified copy of a death certificate as to the death of William D. Lohman which asserts that the death was accidental. We agree that the opinion of accidental death should have been excised from the certificate prior to its admission into evidence, but under the facts and circumstances of this case, we think the admission did not constitute reversible error.

Rule 43(a), Federal Rules of Civil Procedure, provides that “[a] 11 evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.”

Further, 28 U.S.C. § 1739, provides that: “All non judicial records of books kept in any public office of any State * * *, or copies thereof, shall be proved or admitted in any court or office in any other State * * * by the attestation of the custodian of such records or books, and the seal of his office annexed, if there be a seal, together with a certificate of a judge of a court of record of the county, parish, or district in which such office may be kept * * * that the said attestation is in due form and by the proper officers.” Thus, a certified and authenticated copy of a death certificate (which is what was offered here), if admissible in the State of North Dakota, is admissible in Federal District Court in the State of South Dakota and entitled to full faith and credit just as if it were being admitted in the State of North Dakota. •

North Dakota law provides:

Effect of certificate of proof of birth and of certified copy of birth or death certificate. — A registrar’s certificate of the record of a birth and a certified copy of any birth or death certificate issued by the state registrar of vital statistics shall be prima facie evidence of the facts therein stated and shall be accepted as such proof in any court or before any commission, bureau, board, or agency in this state. 23-02-40 N.D.C.C.

The death certificate is also admissible in Federal court in South Dakota if it is admissible under the rules and statutes of the State of South Dakota. Rule 43(a), F.R.C.P.; 28 U.S.C. § 1739.

South Dakota has a statute very similar to North Dakota’s 23-02-40, N.D.C. C. It is S.D.C. 27.0220, providing that a certified copy of a death certificate “ * * * shall be prima facie evidence in all the courts of this state of the facts therein stated * *

This section has been construed in DeGooyer v. Harkness, 70 S.D. 26, 13 N.W.2d 815 (1944), holding that a certified copy of the death certificate is admissible. This case does, however, say that an opposing party would be entitled to move that part of the certificate be excluded if necessary.

It bears repeating that “ * * * the law is, generally speaking, in great confusion * * Marker v. Prudential Ins. Co. of America, 273 F.2d 258, 262 (5th Cir. 1959), upon the question of admissibility of a death certificate containing an opinion on the ultimate fact to be proved, namely, accident or suicide. We have not found any North Dakota case construing 23-02-40 N.D.C.C. with respect to the precise question here involved. The case of Brinkman v. Mutual of Omaha Ins. Co., 187 N.W.2d 657 (N.D.1971), does not assist us. In that case the court admitted under authority of 23-02-40 N.D.C.C. a death certificate containing a statement by the coroner, who was a physician, that the cause of death was “coronary thrombosis.” This was a medical conclusion based upon observable medical facts quite unlike the bald assertion of accidental death contained in Lohman’s death certificate.

Similarly, we have found no South Dakota cases construing S.D.C. 27.0220 as to the precise question before us.

We believe the more salutary rule, expressed by the majority of cases construing statutes such as 23-02-40 N. D.C.C., making the death certificate pri-ma facie evidence, is that the certificate is only prima facie evidence of the facts stated in the certificate and not of any opinion. See 28 A.L.R.2d 352, 362-364; 21 A.L.R.3d 418, 449-456. See also Lockwood v. Travelers Ins. Co., 498 P.2d 947, 952 (Colo.1972) and cases cited therein.

The conclusion of the coroner that the death in this case was accidental is a mere opinion, the same as it would be if he had concluded the death were suicidal. Even more convincingly, we do not think that the imprimatur of “prima fa-cie evidence” should be given to such an assertion of an essentially nonmedieal opinion as to the ultimate fact and pivotal issue in this case.

Although the coroner’s opinion should have been excised from the death certificate prior to its admission into evidence, the admission of the certificate did not constitute reversible error given the facts and circumstances of this case. The assertion of opinion in the certificate was not affirmatively exploited by plaintiff throughout the trial, and its importance was in fact minimized. The only reference to the certificate in oral argument to the jury was by plaintiff’s attorney who merely stated: “We have in evidence the death certificate for whatever its worth, it’s not signed — it’s not a doctor, it’s a layman, he says it was accidental death due to getting in or out of a pickup.” The effect of such a statement by plaintiff’s counsel was to minimize the importance of the death certificate, at least as to the cause of death.

In short, plaintiff did not rely upon the conclusions in the certificate in her argument and only referred to it as being admissible for whatever weight the jury might want to give it. There was certainly other evidence both ways on the suicide issue, and the jury would be the trier of that ultimate fact. Defendant was not prejudiced to a reversible extent, although a close question is admittedly presented.

The judgment of the District Court is hereby affirmed.

      . General American’s motion for dismissal of the appeal was based upon the technical ground that plaintiff had not “ ‘served on the Appellee (General American) a designation of the parts of the record which he intends to present for review’ as required by Rule 30(b), Federal Rules of Appellate Procedure.”

      . In its order vacating the prior order of dismissal, the District Court concluded: “(1) that Gloria M. Lohman at the time of her husband’s death acquired a vested interest in the $100,000 then due under said policy and a right upon proof of accidental death to the prescribed double indemnity; (2) that the insurance company’s deposit in registry of said $100,000 and accrued interest operated as an admission of liability in accordance with the terms of its insurance contract, with liability for double indemnity included should the proof be sufficient to show death to have been caused by accident; (3) that the order of April 16, 1971, insofar as it appears to have affected those insurance rights and interests of the beneficiary, was void, Rule 60(b)(4), Fed.R.Civ.P., that the reservations therein contained explicit or necessarily implied, continued the right of Gloria M. Lohman to defend against the cross claimants and additional defendants, thereby actually in that part of the case and in any other aspects involving the merits preserving her status as the plaintiff and (4) that the movant under her motion is entitled to the relief she seeks.”

      . General American paid the sum of $100,000.00 on the ordinary life portion of its policy and the amount in dispute was whether an additional $100,000.00 was due. That amount was due only if the death of William Lohman was accidental within the terms of the policy.

      . The opinion expressed in the death certificate was that Lohman “ * * * was coincidentally shot in the head getting in or out of the pickup” and “ * * * that death was met by accident.” Trial Transcript, p. 207.


author: GIBSON, Circuit Judge.

text:
    COMMISSIONER OF INTERNAL REVENUE, Appellant, v. TRANSPORT MANUFACTURING AND EQUIPMENT COMPANY, Appellee. TRANSPORT MANUFACTURING AND EQUIPMENT COMPANY, Cross-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Cross-Appellee.
    Nos. 72-1321, 72-1493.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1973.
    Decided April 20, 1973.

      James K. Logan, Olathe, Kan., and Guy A. Magruder, Kansas City, Mo., for Transport Mfg. Co.
    Michael L. Paup, Atty., Tax Div., Dept, of Justice, Washington, D. C., for Commissioner.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge.

       Chief Judge of the United States District Court for the District of North Dakota, sitting by designation.

   GIBSON, Circuit Judge.

Both the Commissioner and taxpayer, Transport Manufacturing & Equipment Company (T.M.E.), appeal from adverse holdings rendered on two different issues by the Honorable Leo H. Irwin, United States Tax Court. This Court has jurisdiction pursuant to 26 U.S.C. § 7482(a) to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” We affirm the Tax Court on both issues.

Two questions are presented in this appeal: (1) Did the taxpayer realize a capital gain on the sale of certain equipment in 1957? and (2) Was the Tax Court correct in holding that the taxpayer was not entitled to a net operating loss carryback for a bad debt deduction allegedly occurring in 1960? These questions will be discussed seriatim.

TAXPAYER’S 1957 SALE OF TRAILERS

A. Factual Discussion. T.M.E., owned and controlled by the Riss family, leased non-refrigerated and refrigerated vans and tank trailers to Riss & Co., Inc. (Riss & Co.), an interstate motor carrier also founded and controlled by Richard Riss, Sr. Riss & Co., subject to the rules and regulations of the Interstate Commerce Commission, founded T.M.E. to avoid an ICC regulation requiring a hearing whenever a carrier with more than $500,000 in debt sought to incur further indebtedness. T.M.E. was organized as an independent corporation to buy the carrier’s (Riss & Co.’s) equipment and to lease that equipment to the carrier on a “net lease” basis. Riss & Co. paid T.M.E. a monthly rental on each item of equipment, which was determined by a depreciation method employed by T.M.E., plus a monthly charge to cover T.M.E.’s overhead and interest expense. At the end of the leasehold agreement, Riss & Co. was usually given the option of purchasing the rental equipment at the original book value less the accumulated depreciation. The Tax Court said that “T.M. E. was designed merely to serve as a conduit for equipment needed for Riss” and “it was never intended that T.M.E.. would reap a profit of any significance from its dealings with Riss.”

In 1954, T.M.E. purchased 1,216 vans and trailers from Fruehauf Trailer Co. for $8,471,294. By leasehold agreements dated April 1, 1954, T.M.E. leased all of this equipment to Riss & Co. for a six-year term. T.M.E. assigned the leases to Fruehauf as additional security for the purchase mortgage executed to Frue-hauf on the purchase of the trailers and vans. Of the 1,216 trailers and vans, 899 were designed experimentally with aluminum components replacing the traditional steel sections. During three years of use by Riss & Co., the trailers required extensive repairs. Riss & Co. estimated that these repairs due to the faulty design and the lost time of the use of the equipment cost it between $700,000 and $800,000.

By agreements dated January 16 and July 16, 1957, Fruehauf contracted to repurchase 814 of the 1,216 trailers and vans sold to T.M.E. in 1954. The agreed repurchase price was $3,904,000. T.M. E. also purchased 850 improved trailers and vans from Fruehauf to be used in Riss & Co.’s expanding frozen food shipping. From 1954 until the time of the .sale in 1957, T.M.E. had depreciated the 814 trailers in the amount of $3,683,756.43, which left a date-of-sale basis (book value) in the trailers sold of $1,688,756.47. The difference between the amount received from Fruehauf ($3,904,000) and the taxpayer’s basis ($1,688,756.47) was $2,215,243.53. T. M.E. credited this amount to a receivable account marked “A/C Rec. Riss & Co.,” on the basis of the following agreement entered into by Riss & Co. and T.M.E. on January 16,1957:

“AGREEMENT
“WHEREAS, Transport Manufacturing & Equipment Co. owns and has under long term lease to Riss & Com-' pany, Inc. certain 1954 Fruehauf semi-trailers, which leases will expire on various dates following January, 1960.
“WHEREAS, Transport Manufacturing & Equipment Co. now has an offer to purchase certain of these units which would require that Riss & Company, Inc. agree to cancel the existing leases on the units sold, and
“WHEREAS, the existing leases on these units are on a declining rental basis calling for higher rentals in the early years and lower rentals in the later years, and the cancellation of the leases would result in a sacrifice by Riss & Company, Inc. of the low rentals during the last months of the aforementioned leases.
“NOW THEREFORE BE IT UNDERSTOOD, that Riss & Company, Inc. does hereby agree to the cancellation of the leases on the units which Transport Manufacturing & Equipment Co. desires to sell and that in consideration for the agreement by Riss & Company, Inc., to cancel the leases on the units sold that Transport Manufacturing & Equipment Co. does hereby agree to pay Riss & Company, Inc. an amount equal to the sale price above Transport Manufacturing & Equipment Co.’s book value on the sale of these units.”

The above agreement had the effect of transferring the entire profit on the repurchase sale from T.M.E. to Riss & Co. The Tax Court stated that the price for the used trailers “was above market” and appeared to compensate Riss & Co. for the damages suffered due to the defectively designed trailers. 56 T.C. 388, 397 (1971). The Tax Court also noted that Riss & Co. had been experiencing steady losses in revenue at this same time. 56 T.C. 388, 397 (1971). Obviously, it was to T.M.E.’s benefit to pass the gain on the sale of the trailers through to Riss & Co., which was experiencing heavy losses.

The Commissioner sent T.M.E. a notice of deficiency, which assessed, as capital gain, the excess of the amount received by the taxpayer from Fruehauf over T.M.E.’s basis. The notice of deficiency did not inform the taxpayer, in any manner, of the reason for the deficiency.

The Tax Court, in its first opinion, held that the Commissioner failed to apprise the taxpayer of his intent to employ 26 U.S.C. § 482’s “arm’s-length” theory to sustain the deficiency, and, therefore, the issue was raised too late to be considered by the Tax Court. 56 T.C. 388, 401 (1971). However, the Tax Court went on “to examine the financial consequences” of the lease cancellation agreement and under an “adequacy of consideration” theory found that $217,413.03 of the $2,215,243.53 gain remained with T.M.E. 56 T.C. 388, 405 (1971). However, in a supplemental opinion, the Tax Court upon reconsideration held that this assessment of $217,413.03 was actually based on an “adequacy of consideration” theory (also derived from § 482), which was also presented by brief after trial and too late to be considered by the Tax Court. 57 T.C. 469, 472 (1971). The Tax Court, therefore, finally held that T.M. E. had not realized any gain on the sale of the trailers, because the Commissioner failed to inform the taxpayer T.M.E. “either in the statutory notice, in his answer, or at trial of his intended theory for sustaining the deficiency.” 57 T.C. 469, 474 (1971).

B. Legal Discussion. In reviewing Tax Court decisions, we apply the clearly erroneous standard. Findings supported by substantial evidence on the record as a whole which are not against the clear weight of evidence or induced by an erroneous view of the law will not be disturbed on appeal. Wilmington Co. v. Helvering, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1193 (1942); C.I.R. v. Riss, 374 F.2d 161, 166 (8th Cir. 1967); Lessmann v. C.I.R., 327 F.2d 990, 993-994 (8th Cir. 1964); Schoenberg v. C.I.R., 302 F.2d 416, 419 (8th Cir. 1962).

It is uncontested that the notice of deficiency, Commissioner’s answer, and trial statements and testimony did not expressly refer to § 482 and the theories based on. that section to sustain the Commissioner’s assessment. The Commissioner, however, argues that the taxpayer was sufficiently apprised of the intended use of § 482, because the pleadings and evidence introduced at trial “centered around the economic basis for the cancellation payment” and, therefore, inferentially indicated that the taxpayer knew of the Commissioner’s intended use of § 482’s arm’s-length and adequacy of consideration theories. The Commissioner cites many instances concerning statements made in pleadings by both parties and at trial “pertaining to the economic realities of the lease cancellation payment — [e. g.] . . . whether, in fact, Riss so badly wanted new equipment that it would have voluntarily relinquished its rights under the lease.”

The Tax Court held on these arguments that:

“. . . the issue framed by the pleadings and presented at trial was whether T.M.E. realized the gain at all and was not whether T.M.E., after having realized the gain, could deflect part of it to Riss as compensation for loss of an advantageous lease.” 57 T.C. 469, 473 (1971).

In the first place, the questions of whether T.M.E. realized a gain or whether T.M.E. deflected a gain after realizing it are closely related and would involve use of much of the same evidence. We see this case as an attempt on T.M.E.’s part to present in its pleadings and prove at trial the validity of the lease cancellation agreement. On the other hand, the Commissioner, in order to sustain the deficiency, was attempting to prove the invalidity of the same agreement. Of course, in attempting to prove this invalidity, the Commissioner, at the time of the trial, could well have been inferentially suggesting that the agreement was not at arm’s length or that there was a lack of adequate consideration. In effect, the Commissioner is asking that this Court hold that statements in pleadings and at trial and evidence that may be taken to prove different theories should be sufficient to notify the taxpayer of the theory on which the Commissioner is relying although not explicitly telling the taxpayer the precise basis for the assessment. The real issue in this case is whether the taxayer should inferentially have to determine the Commissioner’s theories, or whether the Commissioner has a duty to specifically inform the taxpayer of those theories.

If a violation of a particular Internal Revenue Code section, Treasury regulation, or theory based on sections or regulations is involved, the Commissioner should notify the taxpayer of that section, regulation or theory. The failure to advise the taxpayer of such information is extremely prejudicial. Deficiency assessments are usually presumptively correct, and the taxpayer has the burden to prove them wrong. The taxpayer works at an extreme disadvantage in trying to invalidate deficiency assessments if he does not specifically know why the Commissioner is challenging the taxpayer. If the notice of deficiency does not state the reason for the deficiency, the Commissioner should then inform the taxpayer of the Code sections and theories in his answer. That is precisely the reason for the explicit provisions of Rule 14(b) of the Tax Court, which states:

“(b) Form of answer. The answer shall be drawn so that it will advise the petitioner and the Court fully of the nature of the defense.” (emphasis added).

Fully advising the taxpayer includes recitation of the Code sections and theories on which the Commissioner relies.

Although the most appropriate times to advise the taxpayer of the Commissioner’s theories to sustain an assessment would be first in the notice of deficiency and then in the Commissioner’s answer, we do not hold that the Commissioner necessarily loses his right to pursue a theory or Code section that is not specifically raised before or at trial. The basic consideration is whether the taxpayer is surprised and disadvantaged when the Commissioner has failed to plead § 482. Commissioner v. Chelsea Products, supra at 197 F.2d 624; Nat Harrison Associates, Inc., supra 42 T.C. at 617; Burrell Groves, Inc. 16 T.C. 1163, 1169 (1951). However, the longer the Commissioner delays in not expressly advising the taxpayer of the intended theories, the more reason there is to conclude that the taxpayer has not received fair notice and has been substantially prejudiced so as to deny the Commissioner consideration of theories raised for the first time in post trial briefs. The Commissioner may avoid this uncertainty and discharge his duty of informing the taxpayer by expressly notifying the taxpayer of the intended theories in the deficiency notice and the Commissioner’s answer.

We, therefore, hold in this case, that the T.M.E. should not be required to read between the lines of the pleadings, trial statements, or evidence to ascertain that any theory based on § 482 was intended by the Commissioner to sustain the deficiency assessment. In addition, the Tax Court had already made a general finding that the agreement between T.M.E. and Riss & Co. was based on “sound business judgment, and precipitated by factors beyond the control of either contracting party.” 57 T.C. 469, 472 (1971). Since the Commissioner raised the arm’s length and adequacy of consideration theories under § 482 for the first time in briefs after trial, the Tax Court did not have to consider these theories. J. William Frentz, 44 T.C. 485, 490-491 (1965), aff’d 375 F.2d 662 (6th Cir. 1967). The finding by the Tax Court that the taxpayer was not apprised of the intended use of § 482’s theories was supported by substantial evidence on the record and was not induced by an erroneous view of the law, We, therefore, affirm on this issue.

TAXPAYER’S 1960 BAD DEBT DEDUCTION

Hampered by extreme financial difficulties, Riss & Co. by the end of 1960 owed T.M.E. $1,383,029.71 largely for the rental of equipment from T.M.E. In 1962, T.M.E. filed an amended return for 1960 and claimed that the $1,383,029.71 should be considered as a bad debt deduction in 1960 and that T. M.E. should be entitled to a net operating loss carryback. The Commissioner disallowed the deduction and T.M.E. filed a petition in Tax Court on September 24, 1962. The Tax Court also disallowed the deduction and said that “we are unable to say that, as of December 31, 1960, Riss’ economic prospects were so moribund as to render worthless its obligations to T.M.E.” 56 T.C. 388, 410 (1971).

The disallowance of this bad debt deduction presents nearly the identical issue that we faced in the companion case of Richard R. Riss, Sr. v. Commissioner, 478 F.2d 1160 (8th Cir. 1973). In that case, Richard Riss, Sr., who as a guarantor paid off a loan of Riss & Co. to Commercial National Bank of Kansas City, Kansas, was not allowed a bad debt deduction on his personal tax return in 1963. In both cases, the bad debt deduction depends on Riss & Co.’s financial capability to pay off its debts. Although this case involves Riss & Co.’s financial situation in 1960 while the companion ease concerned the 1963 financial picture, we think that the company was clearly insolvent in both years and the chances of collecting either debt was at the best minimal. Although the Tax Court stated that prospects for collection of the debt were dim and that Riss & Co.’s debts exceeded its assets by a ratio of two to one, it held that the debt was not wholly worthless in 1960. The existence of Riss & Co.’s valuable trucking routes, the continued operation of Riss & Co. as a going concern, and the extension of credit by T.M.E. to Riss & Co. in 1961 led the Tax Court to conclude that Riss & Co.’s obligation to T.M.E. was not “irreparably worthless” in 1960. 56 T.C. 388, 408-410 (1971). We are not inclined to disturb the Tax Court’s factual findings to which it applied correct principles of law. Further, our discussion in the companion case on this issue applies with equal force to this case and need not be repeated. In addition, the taxpayer did not decide until 1962 that the Riss & Co. debt was worthless in 1960. An after-the-fact analysis does not aid the taxpayer in attempting to prove that a debt was wholly worthless in a prior year.

For the reasons stated here and in the companion case, we conclude that there is substantial evidence on the record as a whole to support the Tax Court’s finding that the Riss & Co. debt to the taxpayer was not wholly worthless in 1960. Therefore, the taxpayer is not entitled to a net operating loss carry-back.

We affirm the Tax Court.

      . The Tax Court opinions are published. Riss v. Comm’r, 56 T.C. 388 (1971); Riss v. Comm’r, 57 T.C. 469 (1971) (supplemental opinion).

      . We are told by the parties that this was an “industry wide practice.”

      . Riss v. Comm’r, 56 T.C. 388, 393 (1971). A more complete factual discussion can be found in that opinion at 56 T.C. 388, 392-397 (1971).

      . That section reads:
      “482, Allocation of Income and Deductions Among Taxpayers
      “In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the1. Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.”

      . “Guess” could be appropriate in some situations.

      . Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933) ; C.I.R. v. Riss, 374 F.2d at 166.

      . In Commissioner v. Chelsea Products, 197 F.2d 620, 624 (3d Cir. 1952), the court said that “[t]he Taxpayer can hardly shoulder its burden if it does not know . . . which transactions or group of transactions the Commissioner has determined to have resulted in distortions of true net income.”

      . Of course, if a certain Code section, regulation or theory has not been specifically raised in the notice of deficiency, in the pleadings, or at trial and if there is an absence of surprise on the taxpayer’s part, the taxpayer has no reason to complain. Nat Harrison Associates, Inc., 42 T.C. 601, 617 (1964).


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Coye BOATNER, Appellant.
    No. 600, Docket 72-2287.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 15, 1973.
    Decided May 4, 1973.

      Henry J. Boitel, New York City, for appellant.
    Frank H. Wohl, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
    Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   OAKES, Circuit Judge:

Following a six day trial before a jury and Judge Cooper in the Southern District of New York, appellant, Coye Boatner, was convicted of one count of possession of counterfeit money in violation of 18 U.S.C. § 472 and sentenced to three years’ imprisonment. His principal claim on this appeal, one which is heard frequently, see, e. g., United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973); United States v. Pellegrino, 470 F.2d 1205 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973); United States v. Dellinger, 472 F.2d 340, 385-391 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), is that the trial judge’s “disparagement” and “intimidation” of defense counsel denied appellant a fair trial.

A brief recital of the evidence introduced at trial will help put appellant’s contention in perspective. The Government's proof established that in June, 1971, appellant received $700 in counterfeit bills in the Bronx from a convicted counterfeiter, one Goodson, who was the principal witness against appellant at trial. It also established that at a hamburger stand in New Orleans appellant had passed a phony $10 bill made from Goodson’s plates and negatives. The defense’s contention was that the Bronx transfer never occurred and that appellant had inadvertently passed the phony $10 bill in New Orleans after receiving it from his girl friend, who in turn had received it from Goodson. The defense claimed that Goodson lied because he sought revenge against appellant for his previous testimony before a grand jury which led to Goodson’s indictment and ultimate prison term on a counterfeiting charge. The jury, however, apparently rejected appellant's version of events and credited the Government’s case.

The trial began amicably enough, with the judge telling the jury that “[b]oth lawyers on both sides have the respect of the Judge, they are fine, upright accredible [sic] members of the Bar, and we are proud of them, they are fighting, as they should, for their respective sides . . . . ” Soon, however, interaction between the trial court and defense counsel, a former Assistant United States Attorney, developed unmistakable overtones of hostility and acrimony. The flames of hostility that were later to blaze were apparently initially sparked by defense counsel’s delay in making certain suppression motions until the day of jury impaneling. They were fueled by defense counsel’s omission, despite his knowing that the trial was set to begin at 10:00 a. m., to inform the court he had another court appearance that would prevent his being in court at that time. Defense counsel did not appear in the courtroom until 10:20 a. m. on the day that the trial was to begin, and trial did not begin until 10:55 a. m. Hostility between court and counsel first burned openly in an exchange begun by what the trial court believed were defense counsel’s unwarranted interruptions of Goodson’s testimony on cross-examination after counsel had asked Goodson to “[t] ell me everything” about a particular happening. The trial court reacted strongly to defense counsel’s argument with the court’s sustaining of the prosecution’s objection on the point. Before the jury, after the Government’s objection, the court said, “You are right. Please continue.” Defense counsel replied, “I disagree. I don’t think he is right.” This exchange ensued:

The Court: Stop it.
Mr. Gold: I am not—
The Court: I will not take any impudence.
Mr. Gold: I am not being impudent.
The Court: Don’t do that.
Mr. Gold: I am not doing anything, if it please your honor.
The Court: Excuse the jury.

In the absence of the jury the court then expressed displeasure with the whole course of defense counsel’s behavior up to that point in strong terms and at some length. He then asked defense counsel and the Government for comments, which too were at some length. When defense counsel moved for a mistrial, the following interchange occurred:

Mr. Gold: Perhaps your honor would want to relieve me and declare a mistrial and get another.
The Court: You just sit right down. That is what you would like.
Mr. Gold: That is not what I would like.
The Court: Don’t holler at me, sit down.
Mr. Gold: Your Honor—
The Court: Don’t.
Mr. Gold: I will not be ordered about like some child in a courtroom.
The Court: You are a child. I am directing you to sit down or I will hold you in contempt.
Mr. Gold: I am not a child. Your Honor, I hope—
The Court: Nothing further, quiet.
Mr. Gold: I am entitled to courtesy.
The Court: Bring the jury in.
Mr. Gold: I want to be treated with courtesy.
The Court: When you deserve it you will be. Sit down.
Mr. Gold: Please, your Honor, don’t address me in that tone.
The Court: Sit down.
Mr. Gold: I am telling you now, your Honor—
The Court: I am telling you I will hold you in contempt of court if this continues.
Mr. Gold: I am only trying to do what I think is best.
The Court: I find you in contempt.
Mr. Gold: Yes, sir.
The Court: Bring the jury in.

Hostility and acrimony in the interactions between defense counsel and the trial court only increased in intensity thereafter. At a side bar conference at another point in the trial, the court called defense counsel’s conduct “disgusting and shyster-like” and “denounce[d]” counsel for “creat[ing] a reason for a mistrial.” Toward the end of the trial defense counsel’s objection to a reference by the trial court to counsel’s motive triggered the court in the presence of the jury to call a Marshal to help enforce the court’s orders to defense counsel to sit down. Other examples of hostility and antagonism between court and counsel could be detailed at some length but to no particular point. Suffice it here to say that a number of incidents occurred throughout the trial.

Appellant blames the trial court and the Government blames appellant’s counsel below for these events. We, however, see little utility in trying to assess proportionate blame on this “cold record.” United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970). It may well be that much of the trial court’s treatment of defense counsel was induced by counsel’s lack of ordinary courtesy and close to contemptuous conduct; it is also true that “trial judges [must] display patience with counsel so as not to prejudice a party or create an impression of partisanship before the jury.” United States v. Pellegrino, supra, 470 F.2d at 1207. Instead of seeking to apportion blame we prefer to consider the course of events as regrettable for all concerned and look rather to other “tile[s] in the mosaic of the trial,” United States v. Naz-zaro, supra, 472 F.2d at 304, to determine if a new trial is necessary. We conclude that it is not.

First, appellant has not substantiated his claim of prejudice flowing from the hostility between trial judge and defense counsel. In contrast to United States v. Nazzaro, supra, and United States v. Dellinger, supra, the trial court’s comments did not create an impression that he personally believed in the appellant’s guilt. United States v. Pellegrino, supra, 470 F.2d at 1207; United States v. Brandt, 196 F.2d 653, 656 (2d Cir. 1952). The trial court’s comments were directed exclusively at the conduct of appellant’s counsel, not — with one exception to be referred to below — at appellant’s credibility or the strength of his ease. United States v. Ross, 321 F.2d 61, 66 n. 3 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). While the trial court’s annoyance was directed primarily at defense counsel, the prosecutor too received a share. *More importantly, the trial court’s rulings on objections during the trial were quite evenhanded and displayed no bias toward one side or the other.

There may be a point, however, where hostility between court and defense counsel alone creates the kind of embattled and prejudicial atmosphere in the courtroom that makes a fair trial impossible. This case falls just short of it, however. Defense counsel in no way could be said to have been “intimidated” by the trial court. Rather his advocacy of his client’s interests was vigorous throughout and only increased in vigor in proportion to the hostility from the trial court. The key question is whether the jury was prejudiced against appellant by the interchanges between the trial court and defense counsel. Most, fortunately, took place outside the presence or hearing of the jury. While it would have been much better had none of the hostility evidenced itself in the jury’s presence, we cannot say that the few brief incidents in which it did inherently prejudiced the jury against appellant. The one of these that comes closest to the line occurred in the course of the cross-examination of the defendant himself the reporting of which (with colloquies) consumed over 160 pages of trial transcript. The cross-examiner was inquiring of the defendant as to his interrogation by two United States attorneys after the New Orleans bill passing incident. After several objections to the line of questioning and to specific questions, primarily on the basis that the interview was not used in the Government’s case in chief and that it was unfair to confront the witness accordingly, defense counsel reiterated his objections as follows:

Mr. Gold: I have one more thing to bring up, to your Honor’s attention, and that is that the Government did not make an offer of this conversation in its case in chief and they are deprived of the necessity of making an inquiry as to that interview. That is totally an unfair way and I ask for a voir dire out of the presence of the jury to determine whether that interview was consistent with my client’s constitutional rights at that time.

The court, somewhat exasperated by the repetitious nature of the objections, replied as follows:

The Court: Objection overruled. On every ground that you have put and I am going to ask you to please not to voice any more objections to this question and giving this witness a great deal of opportunity to contemplate and figure. That is not allowed. You are not supposed to do it. I asked a question and that called for an immediate answer, not time to contemplate by adding these continuous objections.
What you have done is interfere with the purpose of the examination. Now, you have your objection and the objection is overruled and now I will put the question again to you.

We think this was unnecessary and warranted entirely different treatment since it inferred in so many words that the witness needed time to contemplate his answers and thereby implied that he was not telling the truth. The trial judge was careful, however, to use strong curative instructions to attempt to erase any ensuing prejudice to the defendant. During the course of the trial and again in the charge the court reminded the jury that they were to deal only with the evidence before them, that “[t]he lawyers were not on trial here, this defendant is the one on trial,” and that exchanges between court and counsel were to be “disregard [ed] completely” in their deliberations. These strong admonitions tend to mitigate any prejudice that appellant might otherwise have suffered. United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972) ; cf. United States v. Nazzaro, supra, 472 F.2d at 312-313 & n. 11; United States v. Frascone, 299 F.2d 824, 829 (2d Cir.), cert. denied, 370 U.S. 910, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962).

Finally, our conclusion that the prejudice to appellant was minimal is also reinforced by the strength of the case against him. United States v. Pelle-grino, supra, 470 F.2d at 1208; United States v. Ross, supra, 321 F.2d at 66 n. 3. Goodson’s testimony that he delivered the counterfeit money to appellant was corroborated by the testimony of his nephew, one Dogostiano. While the defense was able to challenge Goodson’s credibility, it offered no motive to explain away Dogostiano’s corroboration. Further, appellant admitted passing a counterfeit bill in New Orleans. His explanation for this, if not inherently incredible, was certainly implausible. The implausibility of the explanation is reinforced by appellant’s denial of passing the counterfeit bill when first apprehended in New Orleans and denial when interviewed by the two Assistant United States Attorneys in New York even of being in New Orleans at the time in question. This was thus not a close ease in which the verdict was tipped by the court’s reactions to counsel.

Appellant’s other contentions are less troublesome. Appellant claims that the Government violated the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (the “Rules”) because five days before trial was to begin the Government requested a postponement on the ground that one of its key witnesses, a Louisiana resident, was pregnant and was advised by her doctor not to travel. The requested postponement was granted, and, as a result, trial was held ten months after indictment, not the six months appellant claims was required by the Rules. The Rules, however, specifically provided that a continuance may be granted at the prosecutor’s request when material evidence is unavailable. See Rule 5(c) (i); United States v. Counts, 471 F.2d 422, 427 (2d Cir. 1973). The Government was otherwise at all times ready to proceed within the letter and spirit of Rules 3 and 4. In short, appellant’s speedy trial claim is frivolous.

Appellant’s final claim is that the trial court improperly allowed appellant to be cross-examined and rebuttal evidence to be submitted concerning crimes not charged in the indictment. One part of this claim is based on evidence submitted about some stolen credit card receipts found during a search of appellant’s car in New Orleans. After some evidence about these receipts was inadvertently introduced as a result of defense counsel’s mistake about the nature of a list in a Secret Service report, the trial court ruled that it would not permit the Government to introduce further evidence about them in its direct case. See generally C. McCormick, Evidence § 190 at 447 (Cleary ed. 1972). The trial court, however, reserved ruling on whether cross-examination of appellant about the credit card receipts would be proper. Subsequently, the trial court allowed some cross-examination on the point. It may have been within the trial court’s discretion to allow full presentation of evidence on the issue during appellant’s cross-examination, as the defense’s contention was that appellant inadvertently passed a counterfeit bill in New Orleans and use of the stolen credit cards could be said to be a similar criminal act showing appellant in fact had guilty knowledge. See United States v. Kaufman, 453 F.2d 306, 310-312 (2d Cir. 1971); C. McCormick, supra, § 190 at 450, 452. United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970), heavily relied on by appellant, is inapposite, for the criminal act on which cross-examination took place there was totally dissimilar to the crime with which Semensohn was charged, United States v. Kaufman, supra, 453 F.2d at 311, and at best was only relevant to the issue of the defendant’s general credibility. United States v. Glasser, 443 F.2d 994, 1002-1003 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971).

But we need not and do not decide if full presentation of evidence about the credit card receipts on cross-examination of appellant would have been an abuse of the trial court’s discretion. For the Government confined itself to establishing that appellant had some credit cards and that his denial of using them in New Orleans may have been false. Appellant’s statement that others may have used the credit cards when they borrowed his car, for example, went unchallenged. This limited cross-examination was relevant to appellant’s means of financing his trip to New Orleans, where one bill was passed, and thus was within the trial court’s discretion. See C. McCormick, supra, § 190 at 448.

Also, it cannot be said that the trial court abused its broad discretion in allowing the prosecution to present rebuttal evidence that, contrary to appellant’s statements on cross-examination, credit card receipts were found in an article of appellant’s personal clothing, uncovered in the course of the search of appellant’s car. United States v. Vivero, 413 F.2d 971, 972 (2d Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970).

Appellant also claims that evidence relative to crimes not charged was erroneously admitted concerning a prior counterfeiting charge of which appellant had been acquitted. On direct examination appellant testified that he had told the grand jury and the petit jury at a prior trial that he had received some counterfeit bills from Goodson in payment for Goodson’s rental of a room in appellant’s house. He also testified on direct examination in this trial that he had never been in the room claimed to be rented to Goodson. Cross-examination, which proceeded without objection, refined this somewhat to a claim that he had not been in Goodson’s room until after he was arrested on the prior charge and escorted to the room by a police officer. ^ In rebuttal, the Government introduced a portion of the transcript from appellant’s first trial showing that he testified then that he entered Goodson’s room and discovered the counterfeiting equipment pri- or to his first arrest. The Government’s cross-examination and rebuttal evidence were entirely proper, as they went to the issue of appellant’s credibility on subject matter initiated by the defense. See United States v. Vivero, supra, 413 F.2d at 972; C. McCormick, supra, § 190 at 452. The trial court, moreover, carefully instructed the jury several times that it was not to retry the appellant on the charge of which he had been acquitted, but only to consider the inconsistent statements on the issue of appellant’s credibility. Under the circumstances, there was no error.

Judgment affirmed.

      . For example, the Assistant United States Attorney was rebuked several times in front of the jury — indeed, referred to once as a “neophyte” — for supposed disrespect shown the trial court; for asking leading, repetitive or otherwise improper questions on cross-examination; and for conveying the impression on cross-examination that appellant had lied at a previous trial where he was acquitted on a counterfeiting charge.

      . A not atypical exchange occurred when at one point in the trial the court interposed an objection on behalf of appellant when defense counsel failed to object to a question similar to those to which he had previously objected. It is not surprising that counsel responded, “I think I should be the judge as to when I object and when I don’t.” Counsel here quite surpassed Sir Edward Marshall Hall’s comments to the court in connection with the Styles plea:
      The Court: How many more speeches am I to hear? I heard you on Thursday.
      Hall: I don’t think Your Lordship did hear me; Your Lordship did not msli to hear me.
      The Court: You have no right to say such a thing, Mr. Hall; it is a most indecent observation for you to make. I cannot allow it. You meant to be offensive, and you must not be offensive.
      E. Marjoribanks, For the Defense, The Life of Sir Edward Marshall Hall 182 (1954). Or in the Camden Town murder case, when Hall objected to the evidence of a barmaid at the “Eagle” as to the last meeting between the defendant and the victim; she failed to identify either the defendant or his companion, one Lambert.
      Hall: I implore Your Lordship to note that this witness has not identified these men.
      The Court: You have said that before ; I have not forgotten it.
      Hall: I thought Your Lordship did not appreciate it.

        Id. at 231.

      . The Rules have now been superseded in this circuit by individual district plans for achieving prompt disposition of criminal cases promulgated under Fed.R.Crim. P. 50(b), which have received Judicial Council approval and had an effective date of April 1, 1973.