United States v. Mayo Perez, Defendantsappellants

The facts of this case, in a purely legalistic sense, need no embellishment in a literary sense to classify this as a piece of prose that could well be called a second “American tragedy.” It would be an American tragedy, not only be *55 cause the events took place here, 1 but because it is just another instance in which large numbers of Americans get willingly involved in enterprises which reflect a lack of compunction, possibly even a proclivity, to enter into the proverbial “get-rich-quick scheme” evidencing not only a disregard for law but, sadly, also a deafness to conscience. As we undertake our profound but prosaic role of adjudicating these cases, what we see is not pleasant. It reveals a wreckage of promising professional careers, evidence of deliberate and unabashed attempts to prey upon financially pressed expectant mothers for gain and the seemingly all too eager participation by a large cast of characters in a patently illegal undertaking.

The Scheme

A recital of the facts must precede resolution of the issues raised on appeal. The Louisiana-wide get-rich-quick scheme involved the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims. These claims would be submitted to the insurance carriers for the respective vehicles involved in the wrecks with the aid and contrivance of certain physicians and lawyers.

As the scheme evolved, the participants even coined their own terminology which, though alien to the uninitiated, became known to all those who participated. This glossary of modern day crookedness was quite descriptive. Certain participants were known as “recruiters”. The recruiters function, not unnaturally, was to recruit others who assumed titles commensurate with their organizational function. There were the “hitters”, whose function it was to drive the “hitter” vehicle in each collision which supposedly was to be liable for causing the accident. Then there was the “target” vehicles. The occupants of the “target” were known as the “driver” and the “riders”. It was determined at the outset that pregnant women made exceptionally good riders as they could claim pregnancy related injuries which would be both hard to disprove and easily settleable with the insurance carriers. Throughout the scheme there was an effort made on the part of the participants to use vehicles and drivers which were covered by high limits of liability insurance.

According to a pre-arranged timetable, the “hitter” vehicle would strike the “target” vehicle either broadside or in the rear end. The occupants of the “target” vehicle — the driver and riders 1 — and occasionally some of those in the “hitter” vehicle, feigning injuries, would be sent to a particular doctor and lawyer who would facilitate phony claims by creating a medical history for treatment of non-existent injuries and making a demand on the appropriate insurance company. 2

The key to immediate financial gain in each staged collision was advances paid by the attorneys to the “riders” for whom allegedly false claims were being submitted. These advances were paid in the form either of cash payments or loans from local financial institutions, co-signed by the attorney handling the claim. Of the usual advance ranging from $250 to $500, part was retained by the rider-claimant with the rest being distributed among the organizers, recruiters, and others who assisted with various aspects of staging the wreck. When the claim was ultimately settled with the insurance carrier, the proceeds would be applied to (i) repay the advancing attorney or in such cases, to liquidate the guaranteed bank loan and (ii) to pay the inflated doctor’s bill, not infrequently, with kickbacks going to both the organizers and the participating attorneys in addition to their usual shares.

*56 The feature of this case which brought it into federal court was that, in the course of asserting and negotiating for settlement the fraudulent claims of the voluntary victims, the United States mails were used. For ease of reference, we have set out a description of the staged collisions for which proof was adduced at trial in Appendix I of this opinion. We have also set out in Appendix II the participants of those staged collisions described in the indictment and proved at trial. Appendix III of this opinion contains the participants of those collisions for which proof was adduced by the government at trial, but which were not described in the indictment. *

The Proceedings Below

On April 3, 1967, the Grand Jury returned a thirteen-count indictment against the appellants and nine others charging them all with conspiracy to violate the mail fraud statute (18 U.S.C.A. § 371), and selected defendants with the additional offense of violating the mail fraud statute (18 U.S.C.A. § 1341). 3

The Result Of The Trial

Following the close of the Government’s case, the trial court entered judgments of acquittal as to the defendants, Elda DeMary and Jimmy Vital. [See App. II: (3) and (4)]. Additionally, the trial court dismissed five substantive counts for insufficient evidence. 4 After almost two months of trial, the case against the remaining thirteen defendants was submitted to the jury, and on December 18, 1970, a verdict of guilty was returned as to all defendants except Nolan Breaux, who was acquitted. [See App. II: (7)]. The defendant, Andrew L. Prudhomme, was acquitted on one substantive count but convicted of three other substantive counts as well as the conspiracy count and the defendant, William R. Trahan, was acquitted on two substantive counts but convicted of another substantive count in which he was charged as well as the conspiracy count. Subsequent to the trial, the trial court entered an order dismissing the indictment as to the defendants, Walter Borsch and Roosevelt Prater. For ease of reference we have set out in appendix V the sentences imposed by the District Court for each of the counts under which the appellants were convicted below. The record before us on appeal numbers upwards from 10,000 pages *57 contained in thirty-eight bulging volumes including the exhibits. 5 6

Multi-Party — Multi-A ttacks

Each of the twelve who were convicted, all appellants here, alleges prejudicial error was committed below entitling him to reversal. The various grounds asserted are (i) variance between the indictment and the proof, (ii) misjoinder of offenses and denial of severance, (iii) inadequate and prejudicial instruction by the court, (iv) denial of motions for a bill of particulars, (v) lack of a speedy trial and (vi) insufficiency of the evidence. These contentions will be taken up separately in the order recited here. 6

Single Or Multiple Conspiracies

All appellants assert that a variance existed between the indictment charging a single conspiracy involving multiple defendants and the proof which, at best they claim, revealed plural conspiracies involving multiple parties which, admittedly, overlapped upon one another in personnel.

The necessity for distinguishing between evidence which tends to show a single overall conspiracy and that which tends to show several separate conspiracies, a frustrating and challenging task indeed, has been faced by this court before. United States v. Morado, 5 Cir., 1972, 454 F.2d 167; United States v. Lloyd, 5 Cir., 1970, 425 F.2d 711; Jolley v. United States, 5 Cir., 1956, 232 F.2d 83; Brooks v. United States, 5 Cir., 1947, 164 F.2d 142; United States v. Cruz, 5 Cir., 1973, 478 F.2d 408. The necessity for drawing this distinction derives from our interest, clearly our duty, in jealously protecting those accused from the possible transference of guilt of others accused, at least in the eyes and minds of a jury, which so often is claimed to be encountered where en masse prosecutions are undertaken for a conglomeration of separate offenses. The object of such an inquiry must be, in the first instance, to ascertain whether (i) such a variance between the indictment and the proof actually exists and, if it does, (ii) to determine whether substantial rights of an accused are in fact affected by the variance. United States v. Morado, supra, 454 F.2d at 170. To conclude in the negative on element (i) , of course, would obviate inquiry on (ii) .

Here, the thirteen-count indictment was so structured that counts I through XII alleged specific substantive violations of the mail fraud statute against certain of the appellants while count XIII charged all of the appellants with conspiring to violate the mail fraud statute. Count XIII set forth 22 overt acts as being committed in furtherance of the alleged conspiracy in addition to mailings enumerated in counts I through XII which it incorporated by reference. Count XIII also incorporated by reference the provisions of count I which specifically delineated the particular functional responsibilities of the recruiters, attorneys, and the physicians in furtherance of the scheme.

There were twenty-one persons named as defendants in the indictment, of which fifteen were tried. (See note 3, supra). Upon entering pleas of guilty, the defendants Larry Dale DeMary, Kenneth Richard DeMary, and Charles Leon Winn became key witnesses for the government. In addition to the testimony of these three defendants who had pleaded guilty, the bulk of the government’s evidence as to the actual planning and execution of the accidents came from thirty-three other witnesses, most of whom admitted complicity in the staging of the collisions which were the ■objects of their testimony.

*58 The theory of the government’s case, as expressed in count XIII of the indictment, was that all defendants were co-conspirators in a single common scheme to cause the mails to be used in furtherance of a scheme or artifice to defraud insurance companies through the staging of automobile collisions prior to January 1, 1967 and continuously thereafter until the date of the return of the indictment. Kenneth DeMary testified that he was approached in October of 1965 by his friend and former employee Mayo Perez, with the idea of making “fast money” by staging fraudulent automobile collisions and collecting from the insurance carriers for alleged damages suffered. This testimony indicated that it was Kenneth’s acquaintance with various attorneys around the state of Louisiana with whom he could arrange the handling of fraudulent claims which induced Perez to seek his participation. Larry DeMary testified that shortly thereafter his brother Kenneth DeMary and Mayo Perez came to him and asked that he join them in the proposed scheme. When he agreed, the trio staged ' the first of a long series of fraudulent collisions near Bossier City, Louisiana on November 3, 1965. [See App. I: (1); App. II: (1)].

Hub — Spokes—Wheel ?

With the law’s sometime misleading quest for manageable analogy, the government contends that the agreement reached between Kenneth DeMary, Larry DeMary and Mayo Perez constituted them as the “hub” members of a conspiracy which remained operative for many months thereafter until the return of the indictment. The structure of the conspiracy charged, if portrayed schematically, would resemble a “wheel”. 7 At the “hub” of the wheel would be the three initial conspirators. 8 The “spokes” would be the participants of the individual staged accidents proved. The government maintains that the lawyers, doctors, recruiters, and passengers who comprised these “spokes” would, at times, enter the conspiracy by participating in an accident as initially planned and expected, thereby adopting the common objective of the conspiracy as their own. Each spoke, under the government’s theory, thus, was engaged in a similar relationship with one or more of the hub figures.

If Not A Spoke — Hub—Wheel, A Chain

Structural analysis can be carried a step further, by viewing each individual spoke as a “chain” type of conspiracy (see note 7, supra). The “chain” conspiracy is characterized by different activities carried on with regard to the same subject such that each conspirator, in a chain-like manner, performs a separate function which serves as a step or phase in the accomplishment of the overall contrivance. Here the end product in each chain was the defrauding of insurance companies through the creation of false personal injury claims with a resultant use of the mails. Viewed strictly in terms of their degree of involvement, 9 from the periphery of the wheel inward to the “hub”, the “chain” or “spoke” participants would appear in the order of rider — driver (of target)— hitter — recruiters] — doetor[s]— lawyer [s] — hub figure [s].

*59 What Appellants Accept

Appellants, with regard to the staging of each individual wreck, do not vigorously argue that knowledge and awareness of one conspirator, relative to the existence and general activities of the other conspirators, could not have been inferred. Using the test of United States v. Bruno, 2 Cir., 1938, 105 F.2d 921, each conspirator, once he knew he was to'be involved in a staged collision, should have been aware of the others. 10 As such, the riders must have known that their phony claims were processed by insurance companies. Likewise, to each participant in the chain, the knowledge can be inferred that much more was required to complete the overall goal of obtaining funds on false pretenses than the sole function that they were performing. Thus appellants do not contend that the finding of a “chain” conspiracy as to each alleged auto wreck could not be properly reached by a jury. Nor do appellants contend that the jury could not properly find that perhaps some of these- individual chain conspiracies were connected since the participants overlapped to a degree and the activities performed were similar. It has been held that where the additional element of overlapping membership exists, there is considerable authority that a single overall conspiracy may be found, United States v. Morado, supra, and that there is sufficient evidence to allow the jury to consider the issue of whether there was a single, conspiracy, or multiple conspiracies. Jolley v. United States, 5 Cir., 1956, 232 F.2d 83.

Not One, But Many Wheels — Or A Wheel Without A Rim

Though conceding an occasional overlapping of membership between the several spokes,' appellants argue that here there existed several separate conspiracies. Appellants contend that subsequent to the first collision collaborated on between Kenneth and Larry DeMary in Bossier City on November 3, 1965, the two brothers proceeded to set up separate and distinct operations with no control exerted by either over the other’s sphere of operation. Likewise they argue that Mayo Perez, also one of the initial collaborators, became the “hub” figure in another separate and distinct conspiracy. Again employing a structural. analysis, appellants strenuously argue that the “wheel” which the government attempted to prove was deficient in that it lacked a “rim” of eon-nexity. Absent, they contend, was a common objective and awareness of the other “spokes” existence which acts to bind the spokes together into one overall conspiracy. 11 As supportive of their proposition, appellants point to the trial *60 court’s dismissal of counts I through IV of the indictment which were based on the January 5, 1966 collision which the trial Judge viewed as a separate and distinct conspiracy (see footnote 4, supra) [App. I: (4)]. Appellants contend that, just as the trial court disallowed the January 5, 1966 accident to be grouped by the government within an overall conspiracy in count XIII of the indictment, it should have further disallowed the grouping of the separate operations of Kenneth and Larry DeMary under the heading of one overall conspiracy.

In asserting that a variance between the indictment and the proof here existed, and furthermore, that it is fatal, appellants primarily rely on the Supreme Court’s decision in Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. In that ease, one where the indictment charged but one overall conspiracy, the government’s proof at trial, by its own admission, showed that there were eight separate conspiracies involving some thirty-two persons. The key figure in the scheme, which involved the obtaining of government loans by making fraudulent representations, was a man named Brown, who was a part of, and directed each of the eight conspiracies. Brown was the only element common to the eight otherwise completely separate undertakings, no other person taking part in, nor having knowledge of the other conspiracies. Though each of the conspiracies had similar illegal objects, none depended upon, was aided by, or had any interest in the success of the others. 12 The Supreme Court, in reversing the convictions, refused to apply the Berger rule 13 to these facts, but it nevertheless explicitly declined to overrule Berger’s application of the “harmless error” rule where substantial rights of the accused are not affected. While the Court was emphatic in pointing out the necessity of particularized case-by-ease treatment of the materiality of a variance, the opinion demonstrates a shift in orientation from Berger’s reliance on the criteria of surprise and double jeopardy to the also important factor of transference of prejudicial evidence, subconsciously or otherwise, from one defendant to others. In weighing carefully this additional factor the Court clearly expressed its unwillingness to mechanically apply the “harmless error rule” where a variance has resulted in improperly admitting extra judicial statements of a co-defendant against an appellant or exposing him to the harm flowing from a mass of evidence implicating others but not necessarily him on the erroneous assumption that the two were co-conspirators. 14

*61 We are unpersuaded that anything resembling the impairment of substantial rights so evident in Kotteakos, supra, took place here. A review of the record has convinced us that the evidence adduced, both direct and circumstantial, was adequate to warrant the inference that all the participants had entered into this concerted program. To conspire is to agree — the presence of an agreement is the primary requirement for the establishment of a conspiracy, the commission of an overt act in furtherance being attendant. Clark v. United States, 5 Cir., 1954, 213 F.2d 63; Schnautz v. United States, 5 Cir., 1959, 263 F.2d 525, cert. denied, 1959, 360 U.S. 910, 79 S.Ct. 1294, 3 L.Ed.2d 1260; Hunnicutt v. United States, 5 Cir., 1945, 149 F.2d 888, cert. denied, 1945, 326 U.S. 757, 66 S.Ct. 99, 90 L.Ed. 455; United States v. Fischetti, 5 Cir., 1971, 450 F.2d 34, cert. denied, 1972, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478; United States v. Jacobs, 5 Cir., 1971, 451 F.2d 530, cert. denied, 1972, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231; Roberts v. United States, 5 Cir., 1969, 416 F.2d 1216; Castro v. United States, 5 Cir., 1961, 296 F.2d 540; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, cert. denied, 1971, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58; Nelson v. United States, 5 Cir., 1969, 415 F.2d 483, cert. denied, 1970, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754. Since conspiracy is a crime which by its nature tends to be secret, the agreement is seldom susceptible, of direct proof. See, e. g., Krulewitch v. United States, 1949, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; Marrash v. United States, 2 Cir., 1909, 168 F. 225, 229. Thus, the existence of a conspiracy is usually proved in one or more of three ways — by circumstantial evidence, by the testimony of a co-conspirator who has turned state’s evidence, 15 or by evidence of out-of-court declarations or acts of a co-conspirator 16 or of the defendant himself. If the totality of these types of evidence is adequate to show a concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose then the conspiracy may be found. Fowler v. United States, CCA9, 273 F. 15; United States v. Varelli, 7 Cir., 1969, 407 F.2d 735. This is not to be confused with situations where sepa *62 rate conspiracies exist and certain parties are common to each. 17

“Every agreement has two dimensions : the persons privy thereto, and the objectives encompassed therein.” Note, Federal Treatment of Multiple Conspiracies, supra. With respect to the first dimension there is no requirement that every defendant must participate in every transaction in order to find a single conspiracy. While the conspiracy may have a small group of core conspirators, other parties who knowingly participate with these core conspirators and others to achieve a common goal may be members of an overall conspiracy. With respect to the objectives of the conspiracy, it can be said that the prohibited activity must be committed in furtherance of a common objective. Implicit within this second dimension, though, is the requisite that, not only must the objectives of all charged under one conspiracy be common, but there must be one objective, or set of objectives, or an overall objective to be achieved by multiple actions. 18

In essence, the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy. United States v. Varel-li, supra. If that agreement contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to keep it up, then such agreement constitutes a single conspiracy. United States v. Palermo, 7 Cir., 1969, 410 F.2d 468, 470. And the same is true as to an agreement that contemplates that the activity will be repeated sometimes with, sometimes not, the same actors.

Here, there was direct, positive testimony, if credited, from which the jury could find that each of the defendants, appellants here, were participants in one overall conspiracy. With hardly any exception, the testimony squared with the common sense of the scheme. The dictates of self-preservation and longevity necessitated that the scheme rapidly expand beyond the relatively small geographical area represented by Lake Charles, Louisiana and its environs. Hence the alleged separate operations of Kenneth and Larry DeMary in different areas of the state. 19 As the geographical *63 area increased, it became necessary to vary the pattern of doctors and lawyers on each individual collision. 20 Avoidance of detection also necessitated constant changing of passengers and claimants. 21 There was evidence, direct and circumstantial, that the DeMary brothers were in constant communication throughout the life of the scheme.

That here we have a single scheme which envisioned a series of staged collisions, rather than it being a series of “one shot” efforts, is evident by examining the sources of profitability for the convicted participants. The DeMary brothers and the convicted professionals, as well as the recruiters, could only benefit by direct participation in repeated staged collisions. 22 Each participated in as many of the staged collisions as prudence dictated. 23 This was the only way to make the scheme pay for these active participants and, as such, it can be said that the scheme inherently envisioned multiple collisions.

Not insignificant in pointing out the unitary nature of the scheme were the facts surrounding the collision staged on March 28, 1966 in Shreveport. [See App. I: (8); App. Ill: (3)]. Here, reimbursement of advances made by the appellant attorneys prior to learning of the non-existence of an insurance policy under which to make claims was contingent upon future staged collisions. There was testimony that these advances were subsequently repaid in this manner.

The record reflects careful planning and cooperation on the part of each of the persons involved in the conspiracy. We agree with the Seventh Circuit in United States v. Palermo, swpra at 470, where they wrote that — it would be “a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one.” In any event, in an instance such as the one presented by this case, with overlapping membership and activities all directed toward a common goal, most courts have found, as we do here, sufficient evidence to uphold a jury verdict reflecting a single conspiracy. United States v. Cruz, supra; United States v. Lloyd, supra; United States v. Nasse, 7 Cir. 1970, 432 F.2d 1293; United States v. Borelli, 2 Cir., 1964, 336 F.2d 376; United States v. Morado, supra.

Non Spokes, Non Hubs, Non Rings, Non Wheels, Non Chains Should Stop The Law In Its Appointed Rounds

This thing seems terribly complex but it really is not. The scheme simply *64 would not have gotten off the ground— involving, as it did, the professional people of doctors and lawyers as the key to ultimate success — were this to be a one shot operation. For rewards high enough to compensate for the awesome risks of loss of professional status, the ring leaders knew that there had to be a series of phony accidents. Nor were the riders, drivers, targets or hitters unaware of this. All knew that each occurrence was but a part of a plan by which phony accidents would be staged, necessarily at times and intervals, temporally and geographically separated to allay intense suspicions. Even the most innocuous of “riders” — indeed even a pregnant one — was aware in the execution of his/her part that the enterprise was a crooked one in which each stood to gain.

From an operational sense this was not a series of little concoctions to set up a particular collision. It was rather a grand scheme for all to obtain some reward for his/her participation each according to the part played and the risk undertaken.

It only confounds the law to try to characterize this in the figure of spokes, wheels, hubs, rims or chains. (See note 11, supra). It was one big, and hopefully profitable enterprise, which looked toward successful frequent but none-the-less discreet repetitions, and in which each participant was neither innocent nor unrewarded.

Joinder and Severance Adequacy Of Instruction

In contentions closely rélated to those alleging prejudicial variance between the indictment and the proof, appellants argue that their initial joinder in the same indictment and subsequent joinder for trial were improper. These contentions are without merit. Dealing first with the joinder under one indictment, F.R.Crim.P. 8(b), allows defendants to be joined in a single indictment and trial together if “they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Once these conditions are satisfied, as clearly they were here, it is “within the sound discretion of the trial judge as to whether the defendants should be tried together or severally.” 24 Opper v. United States, 1954, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101, 109; United States v. Lane, 5 Cir., 1972, 465 F.2d 408, 413; Tillman v. United States, 5 Cir., 1968, 406 F.2d 930, vacated in part, 1969, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742.

Appellants contend, as we understand it, that, even if one conspiracy was shown as we have held and joinder was thereby proper under F.R.Crim.P. 8, the complexity of the evidence coupled with the absence of adequate instruction by the Court to the jury to aid them in the process of receiving and assimilating it rendered denial of their motions for severance under F.R.Crim.P. 14, an abuse of discretion.

Whenever a crime involves more than one actor, there arises a need to balance the interests of the government in trial economy and in presenting at one time the whole of an illegal operation on the one hand against the need for protecting the rights of the individual defendant on the other. Since conspiracy necessarily involves an agreement between two or more parties and so much can come in once the agreement is established the courts have to be conscious of the dangers well summarized *65 by Mr. Justice Rutledge, writing for the Court in Kotteakos v. United States, supra.

“There are times when of necessity, because of the nature and scope of the particular federations, large numbers of persons taking part must be tried together or perhaps not at all, at any rate as respects some. When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass.”

328 U.S. at 773, 66 S.Ct. at 1252, 90 L.Ed. at 1571. The rules are liberal in permitting joinder at trial, both of offenses 25 and of defendants. 26 Although this permits wide latitude on the prosecution in determining the form in which the case is to be prosecuted the trial court has both the duty and the authority to order a severance at any time during the trial if it believes that impermissible prejudice would otherwise result 27 Thus, the serious problem of reconciling the sometimes competing interests of trial economy and danger of prejudice to defendants necessarily resides in the discretion of the trial Judge. Motions for severance under Rule 14 have rarely been granted and the trial court’s decision has not been disturbed absent a clear showing of abuse. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Smith v. United States, 5 Cir., 1967, 385 F.2d 34. The general rule has been, and remains, that persons jointly indicted should be tried together, especially in conspiracy cases. Hall v. United States, 1948, 83 U.S.App.D.C. 166, 168 F.2d 161, cert. denied, 1948, 334 U.S. 853, 68 S.Ct. 1509, 82 L.Ed. 1775; Davenport v. United States, 9 Cir., 1958, 260 F.2d 591; United States v. Kahaner, S.D.N.Y., 1962, 203 F.Supp. 78; Milam v. United States, 5 Cir., 1963, 322 F.2d 104.

To obtain a severance under Rule 14, the movants have the burden of convincing the Court that without such drastic relief they will be unable to obtain a fair trial. United States v. Haim, S.D.N.Y., 1963, 218 F.Supp. 922. A mere showing of some prejudice has usually been insufficient, for qualitatively it must be the most compelling prejudice against which the trial court will be unable to afford protection. Tillman v. United States, 5 Cir., 1968, 406 F.2d 930, rehearing en banc denied, 1969; Williamson v. United States, 9 Cir., 1962, 310 F.2d 192; United States v. Lev, S.D.N.Y., 1958, 22 F.R.D. 490.

The year following the Kotteakos decision, supra, the Supreme Court in Blumenthal v. United States, 1947, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 found that a single conspiracy existed where five co-conspirators were involved in selling whiskey at over-ceiling prices to retailers. Though the'trial court in Blumenthal had found that the evidence adduced established the existence of one overall conspiracy, certain admissions of two of the co-conspirators were excluded as evidence against three of the other defendants on trial. 28 The jury was *66 specifically instructed to disregard that evidence in considering the evidence against any defendant other than the two who made the admissions. Responding to the contentions on appeal that the safeguards implemented by the trial court were inadequate, the Supreme Court wrote:

“The grave danger in this case, if any, arose not from the trial court’s rulings upon admissibility or from its instructions to the jury. * * * The danger rested * * * in the risk that the jury, in disregard of the court’s direction, would transfer, consciously or unconsciously, the effect of the excluded admissions from the case as made against Goldsmith and Weiss across the barrier of the exclusion to the other three defendants.”