On September 21, 1976, in Washington, D.C., Orlando Letelier, former Chilean Ambassador to the United States, and Ronni Moffitt, an American associate, were mortally wounded by the remote control detonation of a bomb attached to the undercarriage of the automobile in which they were riding.

On August 1, 1978, Guillermo Novo Sampol (Guillermo Novo), Alvin Ross Diaz (Ross), Juan Manuel Contreras Sepulveda (Contreras), Pedro Espinoza Bravo (Espinoza), Armando Fernandez Larios (Fernandez), Jose Dionisio Suarez Esquivel (Suarez), and Virgilio Paz Romero (Paz) were indicted. The seven were charged in Count 1 with conspiracy to murder a foreign official, 18 U.S.C. § 1117; in Count 2, with murder of a foreign official, 18 U.S.C. §§ 1111, 1116; in Count 3, with first-degree murder of Letelier, 22 D.C.Code § 2401; in Count 4, with first-degree murder of Moffitt, 22 D.C.Code § 2401; and in Count 5, with murder by use of explosives to blow up a vehicle engaged in interstate commerce, 18 U.S.C. § 844(i). Guillermo Novo was also charged with two counts (6 and 7) of false declarations to the grand jury in violation of 18 U.S.C. § 1623. His brother, appellant Ignacio Novo Sampol (Ignacio Novo), was charged with two counts (8 and 9) of false declarations to the grand jury, 18 U.S.C. § 1623, and in Count 10 with misprision of a felony, 18 U.S.C. § 4.

Trial by jury commenced January 8, 1979 on the charges against Guillermo Novo, Alvin Ross and Ignacio Novo only.1 At the close of trial on February 14, 1979 each was found guilty of all charges lodged against him.2 This appeal followed.

The evidence produced at trial was voluminous, but a brief summary shall suffice at the outset. The principal witness for the prosecution was Michael Vernon Townley (Townley), who admitted his complicity in the killings and struck a plea bargain with the government in return for his testimony.3 Townley, a United States citizen, entered the employ of DINA, the intelligence agency of the Chilean government in 1974. In the course of that employment, according to Townley, he was designated to carry out the murder of Letelier, who had served in the government of Salvadore Allende before Allende was ousted in 1973. Townley enlisted the help of the Cuban Nationalist Movement (CNM), an anti-Castro organization with which each appellant was affiliated. The thrust of the government's case was that officials in Chile plotted to murder Letelier in order to crush his outspoken opposition to the Chilean government. In order to isolate themselves as far as possible from any attack on Letelier, DINA officials ordered Townley to secure assistance from the CNM.

The primary theory of the defense was that appellants were simply not involved in the murder of Letelier. Appellants also sought to prove that Townley was in fact an agent of the United States Central Intelligence Agency (CIA) which had planned the assassination of Letelier and accordingly, no motive for the murder could be attributed to DINA or to the members of CNM.

During the trial major evidence of the guilt of Guillermo and Ross was introduced by the prosecution in the form of testimony from government informants who were inmates of the same cell blocks with Guillermo and Ross. These informants were operating in cooperation with the government. Following the conclusion of the trial, in the case of U. S. v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115, decided on June 16, 1980 the Supreme Court ruled that such testimony is inadmissible. We are thus required to reverse the convictions of Guillermo and Ross and remand the cases for retrial without the benefit of such evidence.

Also, for failure to grant a separate trial we reverse the convictions of Ignacio Novo Sampol. There was a substantial disparity between the lesser offenses he was charged with and those that directly involved the murders and conspiracy, and we point out additional deficiencies in charges against him and the sentences.

Appellants have made numerous allegations of error. We discuss these allegations below, providing additional factual background where appropriate, and consider all major issues and those we consider likely to recur at the retrial.

* THE TESTIMONY OF THE INFORMANTS KAMINSKY AND POLYTARIDES

In his testimony before the jury Townley gave a detailed account of the planning and execution of the murder of Letelier. A government witness, Sherman Kaminsky, testified to admissions made to him by the defendant Ross. Another witness, Antonio Polytarides, testified to an incriminating statement made to him by Guillermo Novo, in the presence of Ross. The testimony of these two informants corroborated in part the testimony of Townley. The incriminating statements had been made to the informants while they and the defendants were fellow prisoners at the Metropolitan Correctional Center, the federal detention center in New York City. The defendants objected to the admission of the informants testimony on the basis of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). After lengthy hearings on voir dire the court admitted the evidence. On this appeal the defendants renew their objection, citing United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).

Townley testified that in 1976 he was an agent of the National Directorate of Intelligence, known as DINA, the intelligence and secret police agency of the government of Chile. The director of the agency was Juan Manuel Contreras Sepulveda. In the summer of 1976, said Townley, he was assigned by DINA to go to the United States and arrange for the murder of Orlando Letelier. He was told to get in touch with members of the Cuban Nationalist Movement, a Cuban exile group based in the United States, and ask them to carry out the mission for DINA. Pursuant to instructions he came to the United States on September 9, 1976 and met with leaders of the CNM, including the defendant Guillermo Novo.

On the night of September 10, said Townley, several members of the CNM met with him in his hotel room in New Jersey. Present were Guillermo Novo, Alvin Ross, Virgilio Paz, Jose Suarez and other members of the CNM. According to Townley, Guillermo Novo and Paz said that Chile and the CNM shared a common political ideology, and the Cubans wanted help from Chile, such as recognition of a government in exile, sanctuary for fugitives, and participation in training programs.

The Cubans did not respond that night to Townley's request for assistance. The next day Guillermo Novo told Townley that the CNM would cooperate in the murder, but they insisted that Townley personally take part in the operation. Accordingly, Townley, Paz and Suarez came to Washington where they put together an explosive device, and at midnight on September 18 Townley taped this bomb to the cross member under the driver's seat of Letelier's car. The bomb was exploded by remote control on September 21, 1976, at Sheridan Circle in Washington. Letelier and Ronni Moffitt, a passenger in the car, were killed.

Sherman Kaminsky testified before the jury that he met Alvin Ross at the Metropolitan Correctional Center in New York in late May or early June 1978. Kaminsky was there pending sentence on indictments charging interstate racketeering and extortion. He and Ross were confined in the same unit and at some time after June 14, 1978 they "began to talk to each other". Ross had heard that Kaminsky had been a member of Hagannah, an arm of the Israeli military, and he said the Cuban Nationalist Movement aspired to having a similar organization. In many conversations after that Ross and Kaminsky talked about politics and the government of Chile. Ross said the interests of Chile and the Cuban Nationalist Movement were the same, that they were both anti-Castro and anti-Communist, and Chile could supply the Cuban Nationalist Movement with money, safe territory, an exchange of agents for instruction, and weapons and explosives.

According to Kaminsky Ross "told me that he was involved in the murder of Orlando Letelier together with generals in DINA, Sepulveda, Michael Townley, and other members of the Cuban National (sic) Movement in this country." Ross referred to Townley as a traitor, a rat, an informer. He told Kaminsky that he had attended a meeting at which Townley, an agent of DINA, said DINA and General Contreras wanted a Marxist agent assassinated, that this agent was a threat to DINA and that the cooperation of the Cuban Nationalist Movement in the murder would help to cement relations and agreements between the Movement and DINA. Ross called Letelier a rotten Communist Marxist and said he was glad Letelier was dead, that he had contributed two wires used in the bomb that killed him.

Ross also expressed anger because DINA had not given him some money which he had expected. He predicted that he would not pay for Letelier's murder because the CIA would be the scapegoat, people would believe anything of the CIA. He wrote the address and telephone number of his brother Al Ross in Miami Beach, Florida, on a piece of paper and gave it to Kaminsky. A xerox copy of this paper was received in evidence as Government Exhibit 126. (Tr. 4380)

As we have said, Kaminsky and Polytarides were examined at length on voir dire. In addition, before Kaminsky was permitted to testify before the jury, his counsel, William I. Aronwald, Esquire, of the New York bar, made a statement for the record which all parties accepted as evidence. (Tr. 3677 et seq.; 3696; 3698; 4278) The voir dire hearings, together with cross examination before the jury, revealed the circumstances which led to the appearance of Kaminsky and Polytarides as informants. We turn now to that evidence with respect to Kaminsky.

Sherman Kaminsky had been indicted for extortion and interstate racketeering in the Southern District of New York, in the District of New Jersey, and in the Northern District of Illinois. After pleading guilty to each indictment he became a fugitive and remained a fugitive for twelve years until January 1978, when he was arrested in Tacoma, Washington. He was then returned to the Southern District of New York and held at the Metropolitan Correctional Center in New York City. While there he began to get information from other prisoners which he would relate to Mr. Aronwald, and Mr. Aronwald in turn would pass to the United States Attorney for the Southern District of New York. Prior to June 14, 1978 Kaminsky provided information concerning a threat to the life of a federal judge and a threat to the life of an undercover police officer. He also gave information indicating that an inmate in the Danbury Correctional Institution planned to escape. This information was passed along to the United States Attorneys for the Southern and Eastern Districts of New York and to the FBI.

On June 14, 1978 Kaminsky appeared for sentencing before Judge Irving Ben Cooper in the United States District Court for the Southern District of New York. Present in addition to the defendant were his counsel, Mr. Aronwald, and John Bartels, Esquire, and Assistant United States Attorney Shwartz, the prosecutor in the Kaminsky case in the Southern District. The proceedings were held in the robing room, the court noting that this was done because of the defendant's "cooperation with the authorities"; and the court directed that the minutes be sealed.

At the outset of the sentencing proceedings Mr. Shwartz invited the court's attention to Kaminsky's cooperation with the authorities in New York, which he said was continuing, and Mr. Aronwald noted that within the past three weeks Kaminsky had given information concerning a planned escape from Danbury. The court then addressed the defendant, saying in part as follows:

THE COURT (Sentencing TR. 9-11): I want you to listen very carefully to what I have to say.

In the first place, I think it necessary for me to tell you who the judge is who is to sentence you. And why? Because I want to point out to you that I have been around, and I want to point out to you that I am not falling for anything; that whatever I do I am going to do in such a way that if you in any way disappoint me, I will put the clutch on you so that no matter what you do you won't be able to extricate yourself from the judge's sentence.

I know it sounds threatening, but I have got to talk plain. (Sentencing TR. 9)

Your lawyers have done one whale of a job for you, Mister. They believe in you. I don't. That is putting it on the line. I'm not sure of you; they are.

Why do I bother with you altogether, then? Why don't I just throw the book at you and say you did a dirty, slimy, almost inhuman bit of deportment, you should pay, and I wish the law would enable me to multiply it by ten? Why do I bother with you altogether since I suspect you?

For the simple reason that there has been called to my attention by your lawyers and by the Government, in all fairness, that you have been cooperating. Does that mean that I am convinced that you have told everything you know? Not by a hell of a long way. No, sir. You haven't convinced me of that. I don't know whether you are peddling some of this a bit at a time. (TR. 10-11)

See, I have had people like you. Some of them were my witnesses before I became a judge. I have seen some of the worst rogues rise to the top, and I have seen some of the worst rogues go down the gutter. What they do by way of saying they will cooperate is to dole it out like with a medicine dropper.

I think I was able to tell which ones were really opening up and which ones were really playing a game of cat-and-mouse.

I have a feeling that you are in the middle ground, that you are giving some material, and I think some valuable material, but I think you can go much further.

Do I think Kaminsky would not succumb to the temptation of going back to the same kind of maneuvering that he engaged in? I'd like to think not, but I may say candidly that when you are in a corner I think you may very well pull off the old kind of stuff. (TR. 11)

I come back to the only thing that makes me talk to you, spend my energy, exercise a sore throat.

Why do I do it? I say I do it only because I believe you can be cooperative with the authorities to the end that the community will be benefited by the help that you are in a position to give. (TR. 12, 13)

THE DEFENDANT: I can and I will, your Honor.

And your lawyers are in pleading with me to give you a chance to make good and not put you in jail. Why am I considering doing it? Only because you may be of service to the national community. If I didn't think that you could render service and be helpful, and in that way possibly purge yourself, I wouldn't spend three minutes with you, ... (TR. 16)

All of which makes me reiterate that I'm not sold on you. (TR. 18)

I ask you very plainly: If I give you a chance to cooperate with the authorities, I don't care where the authorities are in America, in the United States of America-I don't care whether it's Alaska or whether it's New Jersey or Chicago-Hammock did it, and you know I clipped his sentence because he did it. But he proved it, and only after he proved it did I cut the sentence.

I ask you plainly. Don't kid yourself. Get this over with, Kaminsky. If there is nothing here for you, don't fool yourself. I will find out. Take your sentence. Have it over with. Don't bluff the judge.

When the judge says to you "Kaminsky, do you think you can help the authorities?", don't brush me off or think you are satisfying me by saying yes. Don't say yes unless you know what you are talking about, because I will find out. (TR. 18, 19)

Now, what do you say?

THE DEFENDANT: Judge Cooper, I have been listening to every word you said. I believe every word you say. Your reputation goes before you. You are considered a hard judge, and I believe everything that you just said.

And, in answer to your question, if the Government will enable me to help, if they will allow me to help, I will purge myself. I am limited in how I can help. I can do more; I have offered to do more. There isn't enough that I can do to satisfy what I have done. But I will give the Government my full and total cooperation if they will just let me, if they will just give me an opportunity to really go and do the things that I know I can do. This is the opportunity I need. (TR. 19)

I can really give them service, really do things. I want to be able to do things. I told this to both my attorneys a long time ago.

I was born and raised in the streets of New York. I served time in jails in New York. I know a lot of people that are in crime and they are people that know me, and they are people that have always thought that "this is one of our kind."

I don't know how to describe it. But there are people that have confidence in me, they talk to me, and I could utilize these confidences if they would let me, and I have done the best that I could under the circumstances.

Judge Cooper, I haven't held anything back. I haven't held one thing back. As quickly as it came to me, that is as quickly as I called Bill Aronwald.

But I give you my word that the U.S. Government in any capacity has got my full and total cooperation. But to please give me an opportunity to let me use it, to let me show them.

All right. That is fair enough. (TR. 19, 20)

Turning to Mr. Shwartz the court then repeated that the purpose of the sentence he was about to pronounce was "to hold (the defendant) to account, on his pledge to be of service to the authorities." (TR. 20) The court asked him (TR. 21).

Am I to infer that you see the wisdom of taking, urging such steps on the part of the authorities as will enable this defendant to make good what he pledges he is prepared to do.

Mr. Shwartz replied (TR. 22) that his office and the authorities in the Eastern District had told the United States Attorney in the Northern District of Illinois about Kaminsky's cooperation and "the ongoing nature of Mr. Kaminsky's assistance." He said the federal prosecutor in the Eastern District was "hopeful of securing Mr. Kaminsky's testimony in some capacity", and that "Any cooperation in terms of other new fields which I think we all hope may turn out to be fruitful, I don't think that the U.S. Attorney's Office for this district can do anything to enable Mr. Kaminsky to do that." He concluded (TR. 23): "I think all that your Honor can fairly expect of Mr. Kaminsky-and all Mr. Kaminsky offers-is that he cooperate to the fullest extent he can under the circumstances he finds himself in."

Expressing satisfaction with these representations the court noted (TR. 23):

The Government can only go as far as it possibly can under these circumstances. I think it would be foolhardy not to alert everyone as to what you have said on the record, Mr. Kaminsky, and if I find that you have nevertheless done all you can while in confinement ... I certainly am not going to hold it against you so long as I am convinced that, while in confinement, you went all out ... all of which leads me to say very candidly that I will give this defendant credit for whatever he does, even if he comes up with almost nothing. But if he has actually tried and I am impressed that he has tried, I will give him credit for that. But he's got to strain himself, ... (TR. 25) I am going to give you a chance to prove yourself. I intend to hand you a sentence and I am going to suspend the operation of that sentence depending on how you come through, and you know what I mean by that expression ... You are going to be on probation. You are going to have to prove to the judge that you really are what you say you are, that you really will perform what you pledge will be performed, that you recognize that is the only reason why the judge is allowing this kind of a sentence to come into existence.... (TR. 28, 29) If you don't make good, I will throw you in the can if it's the last act I do before I pass on.... The point is, Mr. Kaminsky, I've just got to go back to the first utterance I made: You are suspect; that's it. You might as well know. You surprise me by showing me you are what you are, I will back you up to the hilt. And, if you don't I will back you into jail. (TR. 31)

Judge Cooper, number one, I believe you. God knows, I believe every word that you are saying.

I will try my hardest.

This afternoon, this evening, visiting me at the Detention Center here is Mr. Gambino's cousin. He is coming to visit me. I have explained this to Mr. Aronwald. I explained it to Mr. Bartels.

There is no limitation to what I can do or what I can attempt to do, but I know I can accomplish something. Your Honor, please believe me.

I want to be able to purge myself. I don't know if it's possible, but I want the chance.

one of the main conditions of probation is your unstinted, unlimited, full cooperation with all the authorities, federal and state, anywhere in the United States of America.

The court sentenced Kaminsky to imprisonment for five years and a $10,000 fine, the term of imprisonment to be suspended, and the defendant was placed on probation for five years. Sentence in the New Jersey case, which had been transferred to Judge Cooper, was continued for six months to December 14, 1978. The court noted (TR. 35):

I don't know what I am going to do at the end of six months. I am going to measure, see how far he goes.

Concluding the proceedings the court said (TR. 37):The judgment and commitment will be sealed. I just don't want any leak. I don't want anybody to hurt you. I don't want any of that. I don't want you endangering yourself; understand that.

I expect the Government to give you protective custody if protective custody is required. But that doesn't say that you can relax and say "nuts to them" unless they do this, that and the other. You have got to show 100-percent good faith. You have got to forge ahead on your own.

I will, your Honor. Judge Cooper, I will never lie to you, nor will you ever get a report that is a lie from me. I will do my hardest and I want to thank you for giving me a chance.

After his sentencing on June 14, 1978 Kaminsky continued in confinement at the Metropolitan Correctional Center. He and Ross were on the same floor, along with some sixty other men. Before Kaminsky was sentenced, however, he had not talked to Ross or given any information about Ross. (TR. 4382, 4475, 4476, 4491, 3679) Kaminsky testified that "one day Mr. Ross initiated a conversation with me. We'd seen each other prior to that, but there had been no conversation." For this first conversation Ross took Kaminsky to his room where they talked about the Cuban Nationalist Movement, the Hagannah, and the desire of the CNM to create a military organization similar to the Hagannah. Thereafter, said Kaminsky, they had many conversations. Kaminsky testified (TR. 3808):

I never initiated any conversation with Mr. Ross, but there is no need to initiate a conversation with Mr. Ross. Mr. Ross will talk and talk and talk as long as you are able to listen. There were times when I literally had to run to get away from him, because I was working at the institution and had a job. For some reason Mr. Ross decided that he wanted to talk to me, and he talked continuously ...

In August 1978 Ross told Kaminsky that he had plans to take motor boats, load them with explosives and by use of remote control blow up Russian ships in American harbors. He also talked about attempts he had made on the life of Fidel Castro. Kaminsky made notes of this conversation and reported it by telephone to his attorney Mr. Aronwald. He asked Mr. Aronwald to turn the information over to the CIA. According to Kaminsky he did this because he thought Ross was "a dangerous man." On or about August 11 he gave Mr. Aronwald the five or six pages of notes he had made. Mr. Aronwald called Assistant United States Attorney Shwartz on the telephone, gave him the substance of the notes, and made an appointment to meet with him on August 17. At that meeting Mr. Aronwald turned the notes over to Mr. Shwartz with the understanding that Shwartz would make an effort to find out who Ross was, whether he was a defendant and whether the information contained in the notes was helpful or relevant to any case in which the government was interested.

Early in October Kaminsky was taken to the office of Mr. Shwartz to discuss the information he had given concerning threats on the lives of a police officer and a federal judge. Mr. Aronwald was present at the meeting. At that time the information Kaminsky had given concerning Ross was also discussed, and Mr. Aronwald and Mr. Shwartz told Kaminsky that they wanted no questions or information concerning Ross' defense and "above all, do not initiate any conversations with Mr. Ross."

On October 17 Kaminsky gave Mr. Aronwald additional information concerning Ross and the Letelier murder which Mr. Aronwald in turn related to Mr. Shwartz. Mr. Shwartz said he would pass the information along to Mr. Propper, the prosecutor in the Letelier case, and as soon as they could agree on how and to what extent the information could be used, Mr. Shwartz would be in touch with Mr. Aronwald to schedule a meeting. Thereafter the meeting was scheduled for October 31. On that day Mr. Aronwald and Kaminsky met with Mr. Propper and Mr. Shwartz in Shwartz's office. Mr. Propper repeated the admonition previously given by Mr. Aronwald and Mr. Shwartz, that Kaminsky was not to initiate any conversations with Ross or report any information concerning his defense. Mr. Propper also told Kaminsky the nature of the charge against Ross and mentioned the names of four or five codefendants. It was agreed that for Kaminsky's protection, to avoid the "security problems" that might arise "if they were constantly transporting him back and forth to the United States Attorney's Office", Mr. Aronwald would be the only person having any contact with him and that Kaminsky would give Mr. Aronwald what information he had, to be passed on to the United States Attorney. To avoid any intrusion on defense strategy discussions Mr. Aronwald agreed to screen the information before passing it on.

After August 1978 Kaminsky continued to make notes on his conversations with Ross and to relay information through Mr. Aronwald. The record contains sets of his longhand notes dated respectively September 1978, December 2, 1978, December 14, 1978 and January 17, 1979.

On December 19, 1978 Kaminsky appeared before Judge Cooper in the Southern District of New York, for sentencing on the case transferred to the Southern District from the District of New Jersey.4 At this proceeding, held in the robing room, Assistant United States Attorney Shwartz gave the court his assessment of Kaminsky's performance as an informant between the time of sentencing on June 14 and December 19. He informed the court that in the "period of time since (June 14, 1978 Kaminsky) has in fact fulfilled your Honor's predictions." Specifically, Mr. Shwartz referred at some length to the value of the information which Kaminsky had secured from Ross, and which had been related to Mr. Propper. He reported that Mr. Propper "has spoken in glowing terms of the value of Mr. Kaminsky's information." In response to a question from the court Mr. Shwartz stated that Kaminsky had also furnished information concerning the "possibility" of action against a cooperating witness in a mail fraud case. Mr. Aronwald also noted (TR. 13, 14):

During the six months that has elapsed since your Honor had previously sentenced Mr. Kaminsky back on June 14, Mr. Kaminsky has continued to be incarcerated at the Metropolitan Correction Center. It is fair to say that one of the reasons that we did not come before your Honor and request that bail be set with respect to the New Jersey case was because of several factors, one of which was that in view of the Chicago detainer, any bail considerations would have been academic, but moreover Mr. Kaminsky's true value to the government, his ability to be able to demonstrate his good faith and his cooperation, seem to be enhanced, strangely enough, by his continued incarceration.

After hearing from Mr. Aronwald the court concluded: "Mr. Kaminsky, you have come through. I am satisfied ..." The court then imposed sentence on the New Jersey indictment of five years imprisonment, suspended, and probation for a period of five years, to run concurrently with the five-year period of probation previously imposed in the New York case.

On January 8, 1979 the case against Ross, Guillermo Novo and Ignacio Novo came on for trial in the United States District Court for the District of Columbia. In due course Kaminsky took the stand as a government witness, after the government had agreed to recommend to the court in the Northern District of Illinois that he be sentenced to the time he had already served with probation to be granted. The defendants objected to the introduction of his testimony on the ground that under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), it would violate Ross' Sixth Amendment right to counsel. The court ruled however that Kaminsky would be permitted to testify about conversations with Ross which occurred prior to his October 31 discussion with Mr. Propper, the prosecutor in this case. We hold that this ruling was error, that the testimony of Kaminsky should not have been admitted. That testimony was so damaging to Ross that his conviction must be reversed.

We think this case is controlled by United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In that case the Supreme Court held that statements made to an informant by the defendant Henry should not have been admitted at trial. It appeared that Henry had been indicted for armed robbery of a bank and had been confined in a local jail pending trial. One Nichols was then serving a sentence on local forgery charges and he and Henry were in the same cell block. Nichols had been for some time a paid informant of the Federal Bureau of Investigation. Learning that Henry and Nichols were housed in the same cell block, along with other federal prisoners awaiting trial, an FBI agent told Nichols not to initiate any conversation with or question Henry regarding the bank robbery, but to be alert to any statements made by any federal prisoner. After Nichols was released from jail he told the agent that he and Henry had engaged in conversation and that Henry had made incriminating admissions about the bank robbery. Nichols was paid for furnishing this information. At trial Nichols testified that he had "an opportunity to have conversations with Mr. Henry while he was in the jail", and that Henry had described to him the details of the robbery and made other damaging admissions. The Supreme Court held that Henry's statements to the informant should not have been received in evidence. The Court rejected the government's characterization of Henry's incriminating statements as "voluntary and not the result of any affirmative conduct on the part of government agents to elicit evidence." The Court said:

The question here is whether under the facts of this case, a government agent "deliberately elicited" incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the government; second Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.

The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the government. Nichols had been a paid government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry's suspicion. The arrangement between Nichols and the agent was on a contingent fee basis; Nichols was to be paid only if he produced useful information. This combination of circumstances is sufficient to support the Court of Appeals' determination. Even if the agent's statement is accepted that he did not intend that Nichols would take affirmative steps to secure incriminating information, he must have known that such propinquity likely would lead to that result.

(Pps. 270, 271, 100 S.Ct. pp. 2186-87) (footnote omitted)

At trial and again in their opening brief in this court the defendants relied heavily on the decision of the Fourth Circuit Court of Appeals in the Henry case, 590 F.2d 544 (4th Cir. 1978), which held that the testimony of the informant Nichols was inadmissible. The government on the other hand urged the District Court and us to follow Wilson v. Henderson, 584 F.2d 1185 (2d Cir. 1978), which upheld the admissibility of statements made in circumstances which the government averred were "virtually identical" with those existing in the Henry case. Wilson v. Henderson, said the government, employed "the better reasoning". Now that the Supreme Court has affirmed the decision of the Fourth Circuit, however, the government argues that the present case is "completely distinguishable from Henry." (Supp.Br. for Govt., p. 3) We do not perceive the distinction.

Although Kaminsky was not to be compensated with money on a contingent fee basis, his freedom on probation was contingent upon his "coming through" as an informer, that is, it depended on the quality and extent of his "cooperation". "Cooperation" meant "unstinted, unlimited full cooperation with all the authorities, federal and state, anywhere in the United States of America." It required that Kaminsky not "dole" out information "with a medicine dropper", but "strain himself", "forge ahead on (his) own", and "go all out." Kaminsky gave his "pledge" to act as an informer on those terms. He did "come through" and was rewarded by a grant of his freedom, a commodity more precious than money.

It is true, as the government points out, that when Kaminsky undertook his informing project on June 14, Mr. Shwartz was interested in his information about threats to a federal judge and a police officer, and was unaware of his association with Ross. The conversations with Ross however did not begin until later and when they did begin, and Kaminsky made his first report about them in August, Mr. Shwartz displayed a lively interest. From that time until early January Kaminsky continued to report to Mr. Shwartz through Mr. Aronwald. It is immaterial that the reports went to Mr. Shwartz and not to Mr. Propper, the prosecutor in the Letelier case. Mr. Shwartz and Mr. Propper were both agents of the Department of Justice, the prosecuting agency of the government. In any event, no matter when Mr. Shwartz heard of Ross or became interested in Kaminsky's information concerning him, it is clear that on June 14, 1978 Kaminsky was accepted by the government as an informant at large whose reports about any criminal activity would be gratefully received. As a competent federal prosecutor Mr. Shwartz was of course interested in obtaining any information that would assist the government in prosecuting a criminal case. And so, beginning on June 14 the government trolled in the jail, using Kaminsky as bait, and was ready to net any unwary inmate who rose to the lure.

Kaminsky's ability to "ingratiate" himself with criminals was part of his stock in trade. As he put it at the sentencing proceedings on June 14, 1978

I know a lot of people that are in crime and they are people that know me, and they are people that have always thought that "this is one of our kind". I don't know how to describe it. But there are people that have confidence in me, they talk to me ...

He did ingratiate himself with Ross, so much so that Ross gave him the name, address and telephone number of Ross' brother in Miami, so that Kaminsky could communicate with the brother.

The government argues that Judge Cooper could not "transform a defendant into a government agent for Massiah purposes by the imposition of conditions of probation dictated entirely by the judge". (Supp.Br., p. 3) The short answer to this contention is that no one suggests that the judge made Kaminsky an agent. Kaminsky was an active and eager informer when he appeared for sentence on June 14. He had already informed about threats to a judge and a police officer. His acceptance of the conditions laid down by Judge Cooper merely confirmed him in the status of informer, and pledged him to "go all out" and "forge ahead on (his) own" in pursuit of the reward posted by the judge with the approval of the government. After June 14 his goal was to obtain and report incriminating admissions from Ross, a fellow inmate who trusted him. His testimony about those admissions should not have been admitted.

B. THE IMPACT OF KAMINSKY'S TESTIMONY ON GUILLERMO NOVO

The government argues that even if Kaminsky's testimony was prohibited by the Henry decision the conviction of Guillermo Novo is unaffected. We do not agree.

Mr. Ross told me that he was involved in the murder of Orlando Letelier together with generals in DINA, Sepulveda, Michael Townley, and other members of the Cuban National (sic) Movement in this country.

Counsel for Guillermo Novo immediately moved for a mistrial upon the ground that "Guillermo Novo has been identified as the ideological leader of the Cuban Nationalist Movement" so that the quoted statement by Ross necessarily implicated him. The court denied the motion for a mistrial, saying he would give a "curative instruction" and he thereupon told the jury (TR. 4353):

Ladies and gentlemen of the jury, I instruct you that this witness' testimony only relates to the conversations he had with the Defendant Alvin Ross. It does not cover any relationship with the Defendant Guillermo Novo or Ignacio Novo, and the testimony that he gives is to be considered only in that light and not with relation to the other defendants.

At the conclusion of Kaminsky's testimony the court told the jury (TR. 4499):

Now, again, you are instructed that the testimony of Mr. Kaminsky falls outside of the time alleged in the indictment relative to the conspiracy and also his statements, his testimony refers only to the defendant Ross and not to the defendants Guillermo Novo and Ignacio Novo.

We think these instructions were inadequate to protect Guillermo Novo from the damaging effect of Kaminsky's testimony. The instructions did not tell the jury in plain terms that it must not consider the admissions of Ross to which Kaminsky testified as evidence against any other defendant. The proper instruction, modeled on the standard jury instruction, would have been:

The testimony of the witness Kaminsky is evidence only against the defendant Ross. It is not evidence against any other defendant and you must not consider it in any way in determining the guilt or innocence of any other defendant.

See Standard Jury Instructions, 2.48, 2.53.

The prejudice to Guillermo Novo resulting from Kaminsky's testimony was accentuated by the prosecutor in his argument to the jury. Thus, referring to the meeting between Townley, Guillermo Novo, and the other Cubans in Townley's hotel room before the murder the prosecutor treated Kaminsky's testimony as substantive direct evidence about the meeting. He said (TR. 5161-62):

Guillermo Novo is upset about Rolando Otero and he tells Michael Townley and the rest of the Cubans at that meeting, tells Michael Townley and they tell him, they will get back to him later.

But it isn't Michael Townley alone who testifies about that meeting. Ladies and gentlemen, remember Sherman Kaminsky, the gentleman that was at the Metropolitan Correction Center with Alvin Ross, who talked about how Alvin Ross talked all the time, and what did he say?

He said that Ross told him that he attended a meeting and it was a meeting with this traitor, this rat, Townley-called him a traitor and a rat-you know, he never called him a liar, he called him a trator (sic) and a rat, and he said he told Kaminsky that at this meeting Townley said that General Contreras, the head of DINA, wanted the Marxist assassinated, who was a threat to DINA, that it would help cement relations between DINA and the CNM.

He called him a rat, traitor, an informant, but never a liar.

Sherman Kaminsky, ladies and gentlemen, wasn't at that meeting, but he knew from Alvin Ross, from what Alvin Ross told him what went on and he told you. He told you very much like Michael Townley told you what went on at that meeting.

You heard the testimony that the next day, ladies and gentlemen, Guillermo Novo, Jose Dionisio Suarez tells Townley, "All right. (sic) we'll do it."

(Emphasis supplied)

Aside from these specific examples of prejudice to Guillermo Novo flowing from Kaminsky's testimony, that evidence in general furnished strong corroboration for the testimony of Townley, the principal witness for the government. Without Townley's testimony the government would not have had a case. By corroborating Townley Kaminsky necessarily damaged Guillermo Novo.5

The conviction of Guillermo Novo must be reversed.

Antonio Polytarides was also a prisoner at the Metropolitan Correctional Center while Ross and the defendant Guillermo Novo were there. Before the jury Polytarides testified that he had been convicted of illegal diversion of firearms in 1977 and in December 1977 had been brought to the Center from Sandstone, Minnesota, on a writ. The purpose of the transfer was to allow him to assist Customs Agent King in King's investigation of other persons involved in Polytarides' case. He testified that he met Guillermo Novo late in May or early in June 1978 and probably had more than ten conversations with him after that. On or about December 19, 1978 he said, he saw Novo "and he seemed to me very nervous, aggravated, something was bothering him and I asked him, 'What is wrong, Guillermo?' and then he turned around and he says, 'Well, I have been betrayed by some persons in my case, but we will pay them back.' " Ross was present during that conversation. He did not say anything but was "nodding his head".

On voir dire Polytarides testified that in December 1977 he was brought to the Metropolitan Correctional Center so that he could furnish information to agents of the United States Customs Service about the people he was dealing with in his business of selling arms and munitions. The Customs Service also wanted to know if he had any information about other similar cases. He talked to Special Agent King of the Customs Service about these matters. He testified further that beginning in January 1978 certain prisoners at the Center approached him about the purchase of weapons. Among these people was a Cuban, Louis Sotomeyer, who was interested in purchasing ten machine guns, five for his group and five for another Cuban group. Sotomeyer indicated the other group was the one responsible for the Letelier bombing.

Around March 1978 Sotomeyer introduced Polytarides to an inmate named Joseph Battle who was also interested in purchasing machine guns. By this time the original purpose of Polytarides' transfer to the Metropolitan Correctional Center had been satisfied and he wanted to be returned to Sandstone. When he told Agent King about the approaches to buy machine guns however King told him to "try and see really what they" want; (TR. 3939) and he and King decided that he would furnish information to King about the sale of machine guns, and see if he could "arrange for some of these purchases." (TR. 3952)

Around the end of May or beginning of June Sotomeyer, who was leaving for a parole hearing, turned the machine gun transactions over to Joseph Battle. Battle introduced Polytarides to Guillermo Novo as "the person for the other group that was interested to purchase machine guns." (TR. 3941) Polytarides told Novo "I know who you are because Mr. Sotomeyer and Battle told me your group is the one that arranged it, arranged the Letelier bombing." According to Polytarides Novo responded, "Yes, our group is responsible for that." (TR. 3941) Polytarides reported this conversation to Agent King, although King had not asked him to find out anything about the Letelier bombing, and he understood that he was remaining at the Metropolitan Correctional Center for the purpose of arranging the machine gun deals.

Polytarides reported to King on a regular basis, usually over the public telephone from the Correctional Center, and on two occasions personally. One of the personal meetings took place in the presence of an Assistant United States Attorney, in his office in the Eastern District of New York. (TR. 3952) Polytarides would tell King what was going on and sometimes King would give him directions as to what he should do in a particular situation. (TR. 3955) This went on for several months. At one time Guillermo Novo told Polytarides that two members of his group were fugitives. When Polytarides reported this conversation Mr. King instructed him "to try to find out about the two fugitives." Pursuant to this instruction he told Novo he could arrange safe passage for the two on a Greek tanker. Novo did not respond immediately but five minutes later "he came back and says, they are not interested." (TR. 3944) This was around the middle of July and thereafter Novo did not talk freely to Polytarides; they merely greeted each other, without any conversation.

On November 9, 1978 Polytarides was notified by the Parole Board that he would be paroled January 17, 1979. Late in November or early in December Novo asked him what his parole situation was. When Polytarides replied that he would be granted parole Novo said he was very happy and thereafter he started talking to Polytarides again. He then expressed an interest in purchasing 160 machine guns and large quantities of explosives and grenades. One day he appeared to be very angry and when Polytarides asked why he was angry he said "they had been betrayed by certain people in his case but I will pay them back." (TR. 3947-48) Ross was with him at that time but did not say anything, just nodded his head. (TR. 4179)

Polytarides testified that Agent King did not promise him anything but said he would make his cooperation known to the Parole Board. He insisted that he was giving King information only because he thought it was "the correct thing to do". (TR. 3964-66) Polytarides was placed on parole January 17, 1979.

The District Court at first rejected the proffered testimony of Polytarides. In this ruling the court said (TR. 4136):

As I view and perceive the matter, the defendant Guillermo Novo was put upon and sought out by the witness. The nature of the question and the conversation ... show that the witness knew ... of the Chilean bombing, as you have admitted, before speaking to Novo. And he exploited the situation.

While he did not have any contact with any of the law enforcement personnel or the FBI working on this case, he did have contact with the Customs Bureau official. There is nothing to show that there was any relationship between the Customs official and the FBI. There is testimony from the witness, however, that he was given consideration for an earlier parole, which he received.... I am left with the strong feeling, as I watched and heard, ... that this witness, as I view everything that he said, both on direct and cross, that he set out to secure information in a positive way, he stayed on in his role as an informer. He was fortified with knowledge at a point in time that Novo, one of the persons involved in the Letelier bombing, was in the jail with him facing charges.

Upon reconsideration the court ruled that the testimony of Polytarides concerning Novo's complaint in November or December, that he had been betrayed, would be admitted. The court said (TR. 4200):

I find that the witness' testimony shows that while the relationship had broken off back in July or June, it was resumed and resurrected again, not by his own initiative.

While he is relaying to Agent King or the Customs Officer King the results of the conversation, those conversations only relate to the question of arms transactions.

Guillermo Novo, according to what I have before me, is the person who resurrected the broken-off relationship.

We hold that the District Court's original ruling was correct; the testimony of Polytarides should have been excluded in its entirety. Without repeating our discussion of United States v. Henry, it is enough to say that the reasoning of the Supreme Court in that case requires our conclusion.

The District Court correctly found as facts that Polytarides was an informant retained by Agent King and that in this capacity he set out to secure information from Guillermo Novo. However we do not agree with the District Court's later conclusion that because Novo's relationship with Polytarides was "broken off" and then "resurrected" by Novo on his own initiative the conversation of November or December was admissible. In November and December Polytarides was still an informant, taking advantage of Novo's trust and confidence. We also reject the government's contention that Polytarides' testimony was admissible because "his only function as informant was to follow through with weapons negotiations initiated by other inmates". (Govt.Supp.Br. p. 11) The theory that Polytarides was a specialist informant is belied by the facts. Finally, we are not impressed by the government's argument that after receiving his parole date Polytarides had no expectation of further benefits from the government, or need for them. True, he had been informed that he would be paroled in January but he was still in jail and still in a position to benefit from the favorable opinions and kind words of government authorities; and he would remain in that position while on parole.

The admission of the testimony of Polytarides was prejudicial error affecting both Guillermo Novo and Ross. We cannot say that it was harmless beyond a reasonable doubt, as the government suggests.

THE CONVICTIONS OF IGNACIO NOVO FOR FALSE DECLARATIONS AND MISPRISION

Ignacio Novo was indicted on two counts of making false statements to a grand jury,6 and one count of misprision of a felony.7 He was not alleged to have been a member of the conspiracy to kill Orlando Letelier, nor to have participated in the murders in any way. He was tried, however, with co-defendants Guillermo Novo and Alvin Ross Diaz who were charged in additional counts as follows: (1) conspiracy to murder a former foreign official, 18 U.S.C. § 1117; (2) murder of Letelier, 18 U.S.C. §§ 1111, 1116; (3) murder of Letelier by explosives, D.C.Code, § 22-2401; (4) murder of Moffitt by explosives, D.C.Code, § 22-2401; (5) destroying vehicle and killing Letelier and Moffitt by explosives, 18 U.S.C. § 844(i); (6) and (7) false statements by Guillermo Novo before the grand jury, 18 U.S.C. § 1623. Although Ignacio Novo (hereafter, Ignacio) raises several issues on appeal, we need only determine whether the district court's failure to sever the trial of Ignacio from that of his co-defendants constitutes reversible error.

Ignacio suggests several grounds upon which he argues severance should have been granted. These include (1) denial of his right under the Sixth Amendment to confront and cross-examine witnesses against him; (2) denial of his right to introduce exculpatory evidence; (3) the prejudicial spill-over of evidence introduced with respect to other crimes committed by Guillermo Novo and Ross; (4) confusion of the evidence against him with evidence against his brother Guillermo and confusion of the charges against each; and (5) the tremendous difference in the magnitude of the charges against his co-defendants and the charges against him. More specifically, Ignacio argues, severance was necessitated by the great disparity between the severity of the crimes charged against Ignacio, and those charged against his brother Guillermo and Ross, his other co-defendant. As the number of witnesses, amount and impact of testimony, and the gravity of the offenses involving his co-defendants far exceeded that which was admissible against Ignacio, he alleges that he was prejudiced by the inevitable spill-over of evidence against his co-defendants but not admissible as to him. Second, Ignacio argues that he was implicated at trial by the admission of statements by his co-defendants, and by witness Canete, but was not able to exercise his Sixth Amendment right to confront and cross-examine them as witnesses against him.

We hold that the joint trial of Ignacio on counts of false statements to a grand jury and misprision of a felony with co-defendants charged with conspiracy to assassinate Letelier and the murders of Letelier and Moffitt, was improperly prejudicial to Ignacio. When during the trial it became apparent that Ignacio's guilt or innocence might well be confused with that of his co-defendants, and when Ignacio's right to cross-examine and present his defense was impaired by his joint trial, we believe the district court abused its discretion in denying Ignacio's motion to sever his trial.8 We reverse the conviction, relying upon three sets of factual circumstances that support our judgment ordering a separate trial.

(1) Confusion of the Charges and Evidence

We start with the premise that a defendant in a joint trial has a recognized right to a "severance of defendants or ... whatever other relief justice requires" if it appears that he is "prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together ....9"

Even before trial had commenced, the joint trial of defendants on charges growing out of the same underlying event-the assassination of Orlando Letelier-but premised upon entirely disparate levels and allegations of culpability, foreshadowed confusion of the evidence and prejudice to Ignacio.

The First Count of the indictment lists the Grand Jury's charges against all the co-conspirators charged with the murder of Letelier. While Ignacio was not charged with conspiracy or any role in the commission of the crime, sections 2(f), 2(g) and 4 of the First Count nevertheless state:

2(f) At all times during the period of the conspiracy, the Cuban Nationalist Movement, also known as CNM, CMN and MNC, was a Cuban exile group based in the United States.

(g) At all times during the period of the conspiracy, GUILLERMO NOVO, ALVIN ROSS, VIRGILIO PAZ, JOSE DIONISIO SUAREZ AND IGNACIO NOVO were leaders of the Cuban Nationalist Movement and members of its governing council.

4. ... All the participants in the conspiracy were aware that the conspiracy would encompass and depend upon the combined, coordinated efforts of members of two organizations-DINA and the Cuban Nationalist Movement. (emphasis added throughout)

Section 5 of the First Count of the Indictment then states:

5. In pursuance of the said conspiracy and to effect its object, to kill Orlando Letelier, the following overt acts, among others, were committed in the District of Columbia and elsewhere:

... 38. On or about September 21, 1976, within the State of Florida, Michael Townley telephoned Igancio Novo, whereupon Novo told him that something had happened in the District of Columbia.

39. On or about September 21, 1976, within the State of Florida, Michael Townley met with Ignacio Novo and briefed him about the mission in the Washington, D.C. area (emphasis added)

The impact upon the jury of these allegations referring to Ignacio in that count of the indictment charging conspiracy to assassinate Letelier must have been substantial. While Ignacio was not charged with the actual murder of Letelier, Ignacio and the organization of which he was a "leader" and a "(member) of its governing council", the Cuban Nationalist Movement (CNM), are mentioned prominently and repeatedly throughout the conspiracy count of the indictment. Likewise there was extensive evidence introduced at trial which implicated the CNM. The Cuban Nationalist Movement, and by implication, Ignacio, one of its "leaders" and council members, were implicitly put on trial as parties to the conspiracy which was alleged to involve the "coordinated efforts of members of two organizations-DINA and the Cuban Nationalist Movement." Indictment, First Count, 4. Since the jury found Ignacio's two co-defendants guilty of this conspiracy, and the executed murders that resulted from said conspiracy, it is asking too much to expect this court to hold on the basis of the evidence, involving as it did the Cuban Nationalist Movement, of which Ignacio was the only "leader" and council member not named as a murderer, that the joinder of Ignacio with the principals in the conspiracy and murder did not create improper prejudice against him. The evidence of guilt by association appears unmistakably in the most classic sense of the phrase.

Actual testimony at trial also created the false impression that Ignacio was involved in the conspiracy. When Michael Townley was testifying to discussions he had with members of the Cuban Nationalist Movement in which he "explained the mission, which was to kill-to assassinate Orlando Letelier", he stated he was told by Guillermo and Suarez that they would have to "effect" the request for the assistance of the CNM "with other director members of the movement." (Tr. 1667-1670). Townley followed this up by testifying as to "any conversation ... with Guillermo Novo or Virgilio Paz or any other member of the Cuban Nationalist Movement with respect to what the Cuban Nationalist Movement wanted from Chile or DINA ...":

"THE WITNESS: I can say that all of the telephone conversations that I remember at this moment have been either with Virgilio Paz, Guillermo Novo-on one occasion with Alvin Ross-that I can remember, and possibly one occasion with Ignacio Novo." (Tr. 1671) (emphasis added).

Shortly thereafter, counsel for Ignacio moved unsuccessfully to sever his client's trial and the court reserved its ruling (Tr. 1712). The motion was never granted. The trial judge first instructed the jury that the testimony could not be considered with respect to Ignacio Novo since he was not named as a part of the conspiracy (Tr. 1715), but then amended that instruction to remind the jury that Ignacio was charged with misprision and making false statements to a grand jury, and that the evidence could be considered in that light. (Tr. 1716). The relevance of Townley's testimony to the charges against Ignacio makes it all the more prejudicial because it intertwined Ignacio, a leader and council member of CNM, with those defendants who were charged with the conspiracy and murders.

Although the court's instructions were conscientious attempts by the trial court to limit the admission of evidence for only relevant purposes against Ignacio, the nuances and the breadth of some of the testimony made it inevitable that Ignacio would be prejudiced by the simultaneous presentation of testimony relating to the conspiracy and murder counts, with which Ignacio was not charged, and the misprision and false statements counts, with which he was. The testimony left the clear inference that although not charged, there was the definite possibility that Ignacio was in reality a co-conspirator, because of the indictment's references to him, to the CNM and to the "director members of the movement," and because of testimony by Townley that Ignacio "possibly" participated in the conspiracy. (Tr. 1671) However, our decision is not based upon these circumstances alone. We examine the record further to determine whether Ignacio was also prejudiced by his joint trial with defendants accused of such grossly disparate crimes.

(2) Joint trial on grossly disparate charges

Our decision in United States v. Mardian, 546 F.2d 973 (D.C.Cir.1976), involved facts with some similarities to those present here. In Mardian we reversed the conviction of Robert Mardian because he had been tried jointly with three of the principal members of the Watergate conspiracy, all of whom had played much more substantial roles in the crime over much longer periods. We also relied in Mardian upon the fact that he lost the service of his lead counsel due to illness two weeks into the trial. Our reversal was based on both circumstances but Mardian's strong showing of likely prejudice from his joint trial was the principal basis for our decision to reverse because of the denial of the severance.

Because Mardian was based upon these two primary considerations, it does not control the result here but it has a persuasive influence. The present case, however, possesses strong factors requiring severance in their own right, many of which were also present in Mardian. We began in Mardian, as is proper here, by recognizing that since motions for severance are committed to the discretion of the trial court, denials of severance will be reversed only for an abuse of discretion. F.R.Crim. 14; Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); Mardian, supra, at 977. However, we were greatly influenced by the circumstance of Mardian's trial alongside his alleged co-conspirators who were more certainly involved, and realized that the " 'dangers of transference of guilt' are such that a court should use 'every safeguard to individualize each defendant in his relation to the mass,' " quoting Kotteakos v. United States, 328 U.S. 750, 773, 774, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946); Mardian, supra at 977.

We then examined factors peculiar to Mardian's joint trial that supported his motion for severance. First we noted a great disparity in the weight of the evidence against the defendants, and opined that, as in the Second Circuit's decision in United States v. Kelly, 349 F.2d 720, 759 (1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966), there was a danger that guilt felt by the jury to adhere to some of the defendants might "rub off" on others also to be judged. In other cases this court has expressed the principle similarly, requiring severance when the evidence against one or more of the defendants is "far more damaging" than evidence against the party seeking severance. Compare McHale v. United States, 398 F.2d 757, 758 (D.C.Cir.1968), cert. denied, 393 U.S. 985, 89 S.Ct. 462, 21 L.Ed.2d 447 (1968) with United States v. Bolden, 514 F.2d 1301, 1310 (D.C.Cir.1975). Mardian pointed out that he had been indicted for only one of several counts that were alleged against his co-defendants, and that for that one count, conspiracy, Mardian was alleged to have been involved in only 5 of the 45 overt acts in pursuance of the conspiracy. Most significantly, Mardian's alleged involvement was very minimal in the early days of the conspiracy and he was not charged with any activity during the last two years of the conspiracy.

Because Mardian's role in the conspiracy was far smaller than that of the other defendants, most of the testimony at trial focused on events that even the government's testimony admitted had occurred after Mardian had voluntarily withdrawn from the conspiracy-if he ever had been a member. The government played 30 taped conversations between the co-conspirators, but Mardian was not a participant in any of them. He was mentioned by name five times, however, and we intimated without ruling on the point that such references might have been inadmissible because of their highly prejudicial impact. 546 F.2d at 978, n. 6. We also determined that a separate trial of Mardian would not be burdensome to the courts or prosecutors, since Mardian's limited involvement "would likely require only a short trial and a fairly small number of witnesses". 546 F.2d at 980-81.

While we recognize that conservation of time necessarily expended in the criminal judicial process provides strong support for the joint trial of defendants indicted together, see United States v. Hines, 455 F.2d 1317, 1334 (D.C.Cir.1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972); United States v. McDaniel, 538 F.2d 408, 410 (D.C.Cir.1976); Mardian, supra, at 979, the particular factual circumstances here serve as counterweight to that rationale, and require severance of Ignacio Novo's trial. Holding up the Mardian case for comparison, we perceive certain differences, but primarily similar considerations determine our result.

The fact that Ignacio Novo was not charged as a conspirator cuts both ways. As he was charged with crimes distinct from his co-defendants, the jury might have been able to segregate the evidence of offenses charged against each defendant in its deliberations. On the other hand, this deprives the prosecution of a large part of its rationale for trying the defendants together. The long stream of witnesses testifying to the details of the assassination conspiracy and the actual assassination provided testimony that was largely irrelevant to Ignacio's guilt, whereas Mardian was charged as a conspirator, and was therefore chargeable with all acts committed in pursuance of the conspiracy as testified to at trial.

We are not prepared to say that the weight of the evidence against Ignacio was less substantial than that submitted against his co-defendants, as was found to be the case in Mardian and Kelly. But we consider that this case illustrates that not only the weight of the evidence, but also the quantity and type of evidence adduced against the co-defendants, is a vital consideration in evaluating the necessity for severance. The Second Circuit in Kelly, supra, at 759, found that the large amount of evidence establishing appellant's co-defendants' "shameless" "fraudulent practices ... must have stamped them in the eyes of the jurors as unscrupulous swindlers of the first rank. That some of this rubbed off on (appellant) we cannot doubt," the court declared.10

To speak in terms of "transference" or "rubbing off" of guilt, classic expressions used to explain why severance is justified in a particular case, would be to downplay the prejudice that Ignacio was subjected to in a joint trial alongside two men on trial for the bombing murder of two people. Alvin Ross and Guillermo Novo were not being tried for negligent homicide, or reckless manslaughter, but were accused of participating in an intentional and extremely violent assassination scheme, the gory details of which were described with extreme accuracy to the jury. While in this opinion we hold that the testimony of witnesses to this murder was not improperly inflammatory or prejudicial to defendants Ross and Guillermo Novo because of their direct involvement in the conspiracy and substantive crimes, precisely the opposite conclusion is reached for defendant Ignacio Novo. He was not charged with the conspiracy or murders, but still he was required to sit in court while the emotion-charged testimony was unveiled to the jury and to hear his name bandied around the fringes of those offenses as one of the "leaders" and council members of an admittedly participating organization-the CNM. The amount and provocative nature of the evidence required to prove the charges against his co-defendants so exceeded and varied from that which was necessary or relevant to the charges against Ignacio that it was unfair to him, and unrealistic to expect a jury not to be influenced by such extraneous testimony in its assessment of his guilt upon the lesser charges for which he was tried.

In such cases when there is a gross disparity in the quantity and venality of the testimony against the respective joint defendants it is fair to inquire "whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and limited admissibility." United States v. Gaines, 563 F.2d 1352, 1355 (9th Cir. 1977); United States v. Milham, 590 F.2d 717 (8th Cir. 1979). Applying this standard to this case, we would find it unreasonable to expect that the jury succeeded in compartmentalizing the evidence adduced at this trial. This conclusion in no small part is based upon the fact that evidence at trial, and even the indictment, failed to compartmentalize the evidence for the benefit of the jury. Although the judge faithfully instructed the jury to consider the evidence against Ignacio only in the light of the charges against him, such instructions could not provide their intended protection against prejudice in the face of this emotional evidence that repeatedly attributed responsibility for the murder to the Cuban Nationalist Movement, of which Ignacio was a member of its council, one of its leaders, and frequently mentioned by name in such connections. Nor does it escape our attention that Ignacio's brother, Guillermo, was a co-defendant who was charged in both the conspiracy and murders-and also in two false statement counts. And on one occasion the confusion was so great that one of the witnesses at the trial, describing a meeting in Venezuela, named Guillermo but pointed to Ignacio. (Tr. 1405).11 No curative instruction was given. Perhaps this misidentification symbolized the inevitable failure of this particular joint trial. There was never the clear distinction between the different defendants and the evidence against each of them that is called for by the Constitution's guarantee of a fair trial. Some of the evidence that was relevant to the conspiracy and murders was also relevant to the charges against Ignacio-it was thus difficult to sort out the testimony that was relevant only to the conspiracy and murders from that which was properly relevant to such charges and those against Ignacio.

We note finally that the vast bulk of the testimony concerned the crimes of conspiracy to assassinate and murder12 for which Ross and Guillermo Novo were being tried. Not only has this been considered in the past to suggest prejudice, see, e. g., United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971); Mardian, supra at 978, but it also suggests that the separate trial of Ignacio would not have been an outsized burden upon the judicial system. As in Mardian, separate proceedings against appellant Ignacio would require only a short trial, with a small number of witnesses. When balanced against the lesser interests supporting joint trial, the separate trial of Ignacio was not only prudent but required as well.

(3) Denial of Cross-Examination and Presentation of Exculpatory Evidence

Appellant Ignacio also claims that the trial judge's refusal to sever his trial caused a violation of his Sixth Amendment right to confront and cross-examine witnesses.13 While we do not find this ground to be conclusive of itself, his joint trial did deprive Ignacio of at least some opportunity to cross-examine witnesses and introduce evidence. Furthermore, the adverse testimony of which he complains heaped further confusion upon the jury in its uphill fight to disregard the continuing oblique references to Ignacio's proximity to the conspiracy. Since Ignacio was not able to cross-examine as to some statements that implicated him in both the crimes for which he was charged and those for which he was not, we find this denial of cross-examination to be a third, albeit lesser factor upon which we premise our reversal.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), a witness testified that Bruton's co-defendant Evans had confessed to both defendants that he had participated in a robbery for which they were jointly being tried. Evans did not take the stand, and the judge instructed the jury that his confession was admissible only in deciding his guilt, and not that of Bruton. Although both defendants were convicted, the conviction of Evans was later set aside, Evans v. U. S., 375 F.2d 355 (8th Cir. 1967), because his oral confession had been made in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and Westover v. United States, 384 U.S. 436, 494, 86 S.Ct. 1602, 1638, 16 L.Ed.2d 694 (1966). Reviewing the conviction of Bruton, the Supreme Court held:

because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.

391 U.S. at 126, 88 S.Ct. at 1622.

Ignacio claims that three statements made by his co-defendants that were repeated by witnesses at trial fit him within the Bruton doctrine, since his co-defendants did not take the stand. Ignacio avers that he was incriminated by the statements, but nevertheless could not cross-examine those whose statements constituted probative evidence against him. The statements that Ignacio cites as implicating him in the conspiracy include: 1. Testimony by Ricardo Canete that Paz and Ross admitted "we did it". (Tr. 3286). (emphasis added). 2. Testimony by Antonio Polytarides that Guillermo Novo stated, "(w)e have been betrayed by certain persons, but we will pay them back". (Tr. 4177). (emphasis added) 3. Testimony by Sherman Kaminsky that Ross acknowledged that he and "other members of the Cuban Nationalist Movement in this country" were involved in the murder14 (Tr. 4350) (emphasis added)While Ignacio correctly asserts that he was denied the opportunity to cross-examine the authors of these confessions, their contents are not so clearly incriminatory as was the confession in Bruton. The confession of Bruton's co-defendant Evans was particularly damaging to Bruton because it incriminated both Bruton and Evans in the crime for which they were jointly tried. In this case, however, the statements of Ignacio's co-defendants do not refer to him by name, nor was he on trial for the conspiracy and murder charges. At least in the formal sense, then, it cannot be said that as in Bruton, the statements were "powerfully incriminating" or "devastating" to Ignacio, 391 U.S. at 135-36, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 since the jury was not supposed to adjudicate Ignacio's guilt on the charge of conspiracy. But this brings us back to our earlier point. The numerous references to the participation of the Cuban Nationalist Movement in the conspiracy and to the additional testimony that Ignacio was one of its leaders and a member of its council, created a substantial risk that such testimony would influence the jurors in their consideration of Ignacio's guilt on the false statements and misprision charges. So while the denial of cross-examination may not technically have deprived Ignacio of the opportunity to rebut the charges against him, neither was he able effectively to counter the inevitable prejudice that airing of the conspiracy testimony and the involvement therein of the CNM occasioned to the trial on his charges.

Ignacio's second claim of prejudicial denial of cross-examination at first seems to fit more squarely within the line of cases protecting defendants' right to cross-examine, since the testimony he objects to related directly to one of the offenses charged against Ignacio. Ricardo Canete testified at trial that he sold false identification papers to Ignacio and his brother Guillermo was found to be in possession of the identification papers when he was arrested in Miami. The government relied upon this as one of its three tendered pieces of evidence that Ignacio was guilty of the misprision charge, arguing that Ignacio's securing of the false identification for Guillermo was an affirmative act taken to conceal his brother's participation in the murder of Letelier. Defense counsel argued at a bench conference, however, that Ignacio had procured the false identification to enable his brother to flee a parole revocation in New Jersey that was unrelated to the murder. Canete had told federal investigators that Ignacio mentioned such a motive during their conversations. Yet Ignacio was unable to introduce this testimony since counsel for Guillermo Novo was sustained in his objection to admission of "other crimes" evidence that would have been prejudicial to his client. (Tr. 5092). See F.R.Ev. 404(b).

However, Ignacio, is only partially correct in asserting that his joint trial prevented him from cross-examining Canete and gaining admission of what he termed exculpatory evidence. Defense counsel at the bench conference argued that Ignacio's motive in securing the false identification was to enable Guillermo's flight from the parole violation (Tr. 3097-98) and though the court disallowed certain testimony by Canete,15 he did not rule whether cross-examination of Canete to elicit Ignacio's statement about Guillermo's flight from the parole violation would be allowed or disallowed. There is no record of attempted cross-examination of Canete on this point by Ignacio's counsel. Hence, it is inaccurate for Ignacio to now argue that he was denied the opportunity to cross-examine Canete, since no formal proffer was made or rejected.16

The government does not make this point, but attempts to counter appellant's argument by reference to the Third Circuit's decision in United States v. Boscia, 573 F.2d 827 (1978), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978). In Boscia, defendants averred that had their trials been severed, they would have been able to call their co-defendants as witnesses and elicit exculpatory testimony. The court, however, examined the degree of likelihood that the co-defendants would have testified, that the evidence would have been exculpatory, and that the co-defendants' testimony could have been impeached. Reasoning that there was no showing that the co-defendants would testify, and that if they did their evidence would be cumulative and impeachable, the court found no prejudice in this speculative claim. 573 F.2d at 832.

Although we may gain guidance from Boscia, such inquiries into rebuttal examination that might have occurred are themselves speculative. So, if Ignacio can show a reasonably exculpatory piece of evidence that was inadmissible because of the joint trial, we are inclined to find some prejudice. This we have here, since as defense counsel argued to the court, (Tr. 3097-98, 3104-06), Guillermo Novo had been in the country for ten months after the assassination, and for eight months after testifying before the grand jury. These circumstances created at least an inference that he was getting the false identification papers so he could leave the United States for another reason than to escape the Letelier investigation and to conceal his participation in that murder. Defense counsel also pointed out that Guillermo had been informed that a hearing on his parole violation (leaving the state-New Jersey-without permission) would be held. This case is thus distinguishable from Boscia since the exculpatory evidence to be proffered is stronger.

The government, however, argues that it would have rebutted such an inference with testimony that Ignacio had told Canete that he needed the identification for someone who had "left a body behind". This testimony was excluded at the joint trial, because of possible prejudice to Guillermo Novo. (Tr. 3107-3110, 3216-27). While such testimony might well have rebutted Ignacio's claim in the eyes of the jury, we cannot say that this argument convinces us that Ignacio was not harmed by the denial of his opportunity to present this testimony and to argue that it was exculpatory. We are willing to speculate that Ignacio's evidence might have been helpful to his defense on the misprision count, but to the second level of speculation we will not go. The jury might have accepted Ignacio's version of his motive. We will not attempt to decide what Ignacio intended to accomplish by securing the false identification as that essentially is a jury issue. The joint trial of Ignacio and Guillermo impeded presentation of this feature of Ignacio's defense on a key element of one of the crimes charged, and we consider this as additional support for the conclusion that severance of Ignacio's trial was necessary in these circumstances.

In conclusion, we find that the cumulation of circumstances above set forth required severance of the trial of Ignacio Novo from that of his brother Guillermo Novo and Ross, and that its denial deprived him of the fair trial to which he was entitled. We base this holding upon the confusion of the charges that resulted from the indictment and evidence at trial, upon the likelihood of prejudice brought about by the joint trial on charges of assassination with such grossly disparate charges as false statement and misprision, and upon the inability of Ignacio to present a full defense and cross-examine witnesses implicating him inferentially in crimes for which he was and was not charged.

For the foregoing reasons we vacate the judgments of conviction of Ignacio Novo on the Eighth, Ninth and Tenth Counts and remand the case for his separate trial on said counts.

B. THE VALIDITY OF CONSECUTIVE SENTENCES FOR MISPRISION AND FALSE DECLARATIONS

Appellant Ignacio Novo Sampol (hereafter Ignacio) was charged with and convicted of two counts of false declarations (18 U.S.C. § 1623) and one count of misprision of a felony (18 U.S.C. § 4). He was sentenced to concurrent five years imprisonment on each of the false declarations counts and to three years imprisonment on the misprision count. The latter sentence was adjudged to run consecutively to the five year sentences. In his appeal Ignacio contends that the constitutional doctrine of double jeopardy bars consecutive sentences on the false declaration counts and the misprision count. We agree.

The Double Jeopardy Clause of the Fifth Amendment states that no "person (shall) be subject for the same offence to be twice put in jeopardy of life or limb". (Emphasis added) This protects defendants not only against a second trial for the same offense, but also against multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1943) lays down the controlling rule for determining whether prohibited double punishment is being imposed for the same offense :

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182. (Emphasis added).

Justice Stewart's opinion in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), interprets D.C.Code § 23-112 to the same effect, viz., "that multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense 'requires proof of a fact which the other does not.' " 445 U.S. at 691, 100 S.Ct. at 1438 (Emphasis added), citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. "The legislative history rather clearly confirms that Congress intended the federal courts to adhere strictly to the Blockburger test when construing the penal provisions of the District of Columbia Code." 445 U.S. at 692, 100 S.Ct. at 1438.

Applying this test to the instant case, we look to each crime the government proved and the elements thereof. The two counts of making false declarations before the grand jury were charged in the Eighth and Ninth Counts under 18 U.S.C. § 1623,17 and alleged:

On or about October 29, 1976, within the District of Columbia, IGNACIO NOVO, while testifying before a Grand Jury of the United States, duly sworn in on October 20, 1975, in the United States District Court for the District of Columbia, and having taken an oath that he would testify truly, did wilfully, knowingly and contrary to such oath, make false material declarations as hereinafter set forth.

The indictment then recites the purpose of the grand jury investigation, avers that Ignacio Novo's statements were material to the investigation, and lists those statements alleged to have been made knowingly and falsely.

The Tenth Count of the joint indictment charged Ignacio Novo with misprision of a felony in violation of 18 U.S.C. § 4:18

From on or about September 21, 1976, and continuing thereafter through the date of the return of this indictment, within the District of Columbia and elsewhere, IGNACIO NOVO, having knowledge of the actual commission of a felony cognizable by a court of the United States, that is, the murder of Orlando Letelier and Ronni Moffitt on September 21, 1976, did conceal and did not as soon as possible make known the same to a judge or other person in civil authority under the United States.

It is obvious from their wording that the two statutes do not prohibit what would ordinarily be termed the same offense. But the prohibition in the Constitution against placing an accused twice in jeopardy "for the same offense " is directed at the actual "offense" with which he is charged and not only at the violated statutes. The Constitution does not permit convictions for the "same offense" if they are charged under different statutes even though violations of the two statutes would normally not constitute double jeopardy. In determining whether a defendant is being subjected to double jeopardy the statutory elements of the offenses may however play a material part. Accordingly we must examine the statutes, the offenses as charged in the indictment, and the evidence and procedures at trial.

The provisions of the statute prohibiting false declarations, and the offenses as charged in the indictment, are set forth and described above. In his summation to the jury the trial court correctly analyzed the essential elements of the crime and after describing the statute and the charges of the indictment stated:

There are four essential elements required to be proved in order to establish the (false declaration) offenses charged in the indictment.

As far as those counts are concerned, first, that the testimony was given, after each defendant was placed under oath before a United States grand jury.

Second, that the testimony so given was false in one or more respects charged.

Third, that the testimony concerned matters that were material to the grand jury investigation.

And, fourth, that the false testimony was knowingly given as charged.

Tr. 5555.

The trial court then turned to the misprision offense as charged against Ignacio in the Tenth Count. After describing the statute and the charges the court then outlined the essential elements of the offense of misprision to the jury as follows:

The essential elements of that crime (misprision), each of which the Government must prove beyond a reasonable doubt are as follows:

First, that the defendant had knowledge about the facts and circumstances of a felony.

No. 2. That the felony was committed within the jurisdiction of the United States.

Thirdly, that the defendant concealed his knowledge of the crime from appropriate investigatory or judicial authorities.

Four, that the defendant took affirmative steps to conceal the crime. To commit the crime, imprision (sic) (misprision) of a felony the defendant's knowledge must be actual and his concealment must be purposeful and deliberate.

It is not necessary however that the defendant in any way participated in the crime, only that he had knowledge of it and did not make that fact known to the appropriate authorities.

Tr. 5558-59.

In the ordinary case, violations of the two statutes in question do not amount to the same offense. Certainly there are many cases of misprision that would not involve proof of making false statements to a grand jury, and there are many imaginable instances of making false declarations to a jury that would not entail concealment of a felony. But the government charged and proved Ignacio's false declarations to the grand jury with respect to the murders as one of three alleged affirmative acts taken by Ignacio to conceal the murders which were the objects of the concealment charged in the misprision count. While in order to prove misprision it was only necessary that the government prove that Ignacio committed one affirmative act to conceal the crimes, the government obviously thought it would strengthen its case to present evidence of three alleged acts of concealment upon which the jury could base its verdict of guilt.19

For the jurors to convict Ignacio Novo of the two counts of making false declarations to the grand jury, they had to find that Ignacio had knowledge of the murders and wilfully answered falsely under oath before the grand jury to the government's specific queries about his knowledge. Proof of these elements, however, also constituted proof of the factual elements of the misprision charge. Misprision basically requires knowledge of the commission of a felony, and wilful concealment from the authorities by some affirmative act. A finding that Ignacio wilfully lied about his knowledge of the assassination to the grand jury investigating the Letelier assassination is equivalent to concealment from the authorities. The government even admitted at oral argument that proof of the false statements alone was sufficient proof of the misprision charge. Under such circumstances the false declarations offense admittedly included all the elements of the misprision charge. The false declarations offense does include one element-making the false statement under oath before the Grand jury -which is some proof of misprision but not an element thereof. However, applying Blockburger to the evidence of false declarations which proved the misprision charge there is no essential element of the misprision offense that is not also an element of the false declarations charge and proved by proof of the latter offense. The consecutive sentences imposed for violation of the two statutory offenses is thus invalid under the Blockburger test, since "each ... (offense does not require) proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. Therefore, the offense of making false declarations to the grand jury as proved at trial included the offense of misprision as charged in the indictment and proved at trial and the dual sentences violated the guarantee against double jeopardy.

Decisional law in this circuit routinely applies the Blockburger test to guard against the imposition of double punishment for the same offense. In United States v. Greene, 489 F.2d 1145, 1158 (D.C.Cir. 1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974), we found that the charge of felony murder included every essential fact element of the underlying felony charge of rescue. The lesser charge of rescue therefore was included in the greater charge of felony murder and imposition of consecutive sentences was held to be improper. Accordingly, conviction of the defendant on the rescue charge was vacated. The Supreme Court approved the holding of Greene in Whalen v. United States, supra, 445 U.S. at 694, 100 S.Ct. at 1439.

Applying similar reasoning, in United States v. Benn, 476 F.2d 1127, 1132 (D.C.Cir. 1972), we discerned that a charge of assault with a dangerous weapon was an included offense of a charge of assault with intent to commit rape while armed. Proof of the elements of the earlier charge would also be proof of the elements of the latter charge, our court held, and accordingly conviction on the included offense was barred.

The Supreme Court recently made it plain that the prohibition of double jeopardy may depend upon the particular circumstances of a case. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715, supra, petitioner was convicted both of rape and of killing the same victim in the perpetration of rape. The latter offense proscribed the killing of a human being in the course of any of six felonies, of which rape was one. The Court rejected the government's argument that since felony murder did not in all cases require proof of rape, separate counts charging felony murder in perpetration of rape and rape were not for purposes of the double jeopardy provision the "same" offense under Blockburger. The Court thus applied the theory behind the Double Jeopardy Clause to circumstances, somewhat similar to this one, in which the particular facts of the offenses as charged under two statutes created a greater and an included offense.

Thus, when the elements of the two offenses as charged in the indictment are compared it is apparent that Ignacio's false declarations to the grand jury, which concealed his knowledge, also concealed the commission of the felony from the grand jury. This evidence satisfied the required elements of misprision as set forth in the court's instructions to the jury: first, the evidence indicated that Ignacio had knowledge about the facts and circumstances of the felony; second, that the felony was committed within the United States; third, that the grand jury was an "appropriate investigatory or judicial authority;" and, fourth, that Ignacio in testifying falsely before the grand jury "took affirmative steps to conceal the crime." The evidence also indicated that Ignacio did have actual knowledge and that his concealment was "purposeful and deliberate." (Tr. 5558-59). As noted in n.19, supra, other evidence was offered to support the misprision charge,20 but the false statements to the grand jury were the strongest and the most complete proof of misprision. The statements before the grand jury were also given under oath.

Since there is no way of knowing whether the jury relied solely upon Ignacio Novo's false declarations to the jury in convicting him on the misprision charge, as it could have, it is impossible for us to determine precisely whether appellant was unconstitutionally punished twice for the same offense. The evidence of the false declarations was admittedly sufficient to support the misprision charge and there is a tangible danger that the trial jury may have relied solely on such evidence in returning the guilty verdict on the misprision charge. Therefore, to avoid gambling with appellant's constitutional rights, if we had not vacated the misprision conviction for failure to sever, we would vacate the judgment imposing appellant's consecutive sentence on the charge of misprision. See Street v. New York, 394 U.S. 576, 585-86, 89 S.Ct. 1354, 1362, 22 L.Ed.2d 572 (1969); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931).

On a retrial, the Government may elect which charges are to be prosecuted or in its proof of misprision may elect to exclude evidence of false statements before the grand jury. In any event, consecutive sentences upon the respective misprision and false declaration counts may not be imposed under the factual circumstances here present.

C. THE SUFFICIENCY OF THE EVIDENCE ON IGNACIO'S CONVICTIONS

(1) The False Declaration Counts

Appellant Ignacio contends there was insufficient evidence to support his conviction on the Eighth and Ninth Counts alleging false declarations. The evidence on the Eighth Count is alleged to not support the allegation that he lied when he told the grand jury that he had not heard Letelier's name until he heard it in the news a couple of days after the murder or that he lied when he said that his personal opinion was that the Cuban Communists possibly had committed the murder to create problems. There was uncontradicted testimony, however, that Ignacio heard Letelier's name on the day of the murder (Tr. 1695) and that Townley at that time explained to him how Letelier had been assassinated. When such evidence is viewed in the light most favorable to the jury's conclusion, as it must be, the evidence is sufficient to support the charge.

A similar claim is made with respect to the evidence introduced in support of the Ninth Count which charged that Ignacio testified falsely when he testified before the grand jury and denied that he knew anyone in DINA. In this contention Ignacio asserts that the Government should have been more specific in framing the question. However, it was within the province of the jury to decide the construction given the question by the defendant and determine whether the answer was false. United States v. Chapin, 515 F.2d 1274 (D.C.Cir. 1974), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975); United States v. Bonacorsa, 528 F.2d 1218 (2d Cir. 1976), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49 L.Ed.2d 386 (1976).

Ignacio also contends that the Government failed to prove the falsity of his statement that he had no contact with anyone who had been in Chile in the past two years. This allegation is sufficiently supported by the circumstantial evidence of Ignacio's contacts with Townley, who used the alias of "Andres Wilson", and Ignacio at the time of his arrest had an address book in his possession containing the name "Andres Wilson" and Townley's ("Wilson's") home telephone number in Chile before 1977. The transcript also contains sufficient evidence of the requisite criminal intent.

We thus find no merit in Ignacio's attack on the sufficiency of the evidence to support the convictions on the two false declaration counts.

(2) The Misprision Count

The contention is also made by Ignacio that there was not sufficient evidence to support his conviction of misprision as proscribed by 18 U.S.C. § 4. However, the evidence indicated that Ignacio on October 21, 1976, a month after the murders and after Townley had told him how the murders were committed, concealed his knowledge of the assassination and murders when he was interviewed by a Special Agent of the FBI. And given his prior knowledge, his testimony before the grand jury, in which he denied knowledge of the murders, was also sufficient to support the misprision count. See Part II-C(1) supra. The jury could also interpret Ignacio's obtainment of false identity documentation from Canete for Guillermo as an affirmative act to help Guillermo conceal his identity and flee to foreign nations to escape arrest for his participation in the murders and conspiracy. This was important evidence in support of the misprision charge. The necessary intent to support proof of the crime was also proved by substantial evidence.

D. MOTION FOR RELEASE ON BAIL PENDING APPEAL

Counsel for Ignacio has renewed his motion in this court for bail pending appeal. In view of the result we have reached with respect to his case, and the fact that he was released on bail prior to trial, we grant his present motion. However, we refer the question as to the amount of the bond to the trial court in view of its familiarity with the relevant facts. The trial court shall likewise have authority to deal with all subsequent motions that may arise in connection with Ignacio's release from custody.

LIMITATION OF CROSS-EXAMINATION AS TO TOWNLEY'S ALLEGED

Counsel for appellants Ross and Guillermo Novo sought to cross-examine Townley about his alleged participation to the assassination of Carlos Prats and the attempt to assassinate Bernardo Leighton. Prats and Leighton were Chilean exiles who, like Letelier, opposed the regime which replaced the Allende government.

In September 1974, Prats and his wife were killed in Argentina when a bomb attached to their car exploded after being activated by remote control. Defense counsel proffered to the trial court that Townley had admitted his responsibility for the Prats murder to one of the defendants, and that counsel could present documentary proof that Townley was in Argentina at the time of the killing.

In the second incident, Leighton and his wife were hit by machine gun fire in Rome, Italy in 1975. The defense informed the trial court that it could demonstrate that Townley was somewhere in Europe when the Leighton attack took place.

The trial court refused to permit inquiry into Townley's role in the Prats and Leighton incidents. Appellants allege error. They argue first that evidence of these crimes was admissible to show that Townley employed a modus operandi which was characterized by the absence of assistance from the CNM. From this, they argue, the jury could infer that Townley did not seek aid from appellants when he plotted the assassination of Letelier. Second, appellants claim that by precluding inquiry into the incidents in Argentina and Italy the trial court wrongfully prevented appellants from exploring one of the major benefits Townley reaped from his plea agreement, namely his right to withhold information about his crimes on foreign soil which did not involve United States citizens.21A. THE MODUS OPERANDI THEORY

The Federal Rules of Evidence authorize the admission of testimony concerning other crimes, wrongs, or acts of a person for such purposes as proof of motive or plan. Such evidence is inadmissible, however, to prove the character of a person in order to show that the person acted in conformity therewith. Fed.R.Evid. 404(b).22 Even if admissible, evidence of other crimes or wrongs may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or needless accumulation of evidence. Fed.R.Evid. 403; United States v. Burkley, 591 F.2d 903, 919 (D.C. Cir. 1978), cert. denied 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782.

Appellants sought to explore the crimes in Argentina and Italy in order to demonstrate that Townley typically carried out his DINA assignments by working alone or in conjunction with Virgilio Paz (an indicted fugitive) and not with appellants. They argue that the jury could infer that Townley neither needed nor sought cooperation from the appellants when he planned the assassination of Letelier. This evidence would have been especially probative, they allege, because it was undisputed that Guillermo Novo and Ross were not in Washington when the blast occurred and in fact played no part in the construction of the bomb. By showing that Townley normally operated without their help, appellants could fortify their primary defense that they were not involved in the Letelier murder.

We reject the argument. Preliminarily, we note that the trial judge was validly concerned about the factual proffer by the defense. The alleged link between Townley and the Prats killing was based only on (1) a self-serving statement by one of the defendants (who, of course, had the right not to take the witness stand) that Townley had admitted responsibility for the death; (2) proof that Townley was in Argentina at the time of the murder; and (3) some similarity in the methods by which Letelier and Prats were killed. The proffer connecting Townley to the Leighton attack was even more tenuous in that appellants would have been able to show only that Townley was some