United States v. Edward A. Greer and Alphonse P. Bartkus
467 F.2d 1064
7th Cir.
1972
Check Treatment

*1 discretion.”; there is Dalehite United 956, 15, 36, 73 S.Ct. 346 U.S. (1953).

968, 97 L.Ed. 1427 2680(h) [libel, slan

As to 28 U.S.C. § with contract

der and interference

rights], see v. General Kessler Services

Administration, supra; Teplitsky v. Labor,

Bureau, Dept. of United States F.Supp. (S.D.N.Y.1918), aff’d (2d 1968), cert. denied 398 F.2d 820 311, 21 L.Ed.2d 393 U.S. S.Ct. Meyer, (1968) ; Ruderer v. 1969), denied 396 U. cert.

S. L.Ed.2d

Affirmed. America,

UNITED STATES Plaintiff-Appellee, Alphonse A. GREER and P.

Edward Bartkus, Defendants-Appellants.

Nos. 18584. Appeals,

United States Court of

Seventh Circuit.

Argued April 1972. Aug.

Decided

Rehearing Denied Nov. 1972. *3 Devine, Bailey, H. Richard

Robert S. defendants-appellants. Chicago, 111.,for Atty., Thompson, Gor- U. S. James R. Chicago, 111., plaintiff- Nash, don B. appellee. SWYGERT, Judge, and

Before Chief Judges. PELL, KILEY Circuit and Judge. SWYGERT, Chief appeal from the conviction This an arising out of the two defendants copper 40,400 pounds from theft of freight depot in an Green- interstate field, A. Defendants Edward Indiana. Alphonse were P. Bartkus Greer four- each two counts named charged count indictment. Count One codefendants, defendants, four coconspira- three named but unindicted participation tors, having objectives three unlawful —steal- shipment cop- from an interstate per in violation of 18 U.S.C. § cargo in interstate of 18 commerce violation U.S.C. § concealing cargo in stolen violation 2315. Count U.S.C. § Young, pro- charged Hartys, and Kurtz two codefend- Greer Two Indianapolis they stole a ceeded violation of 18 ants with substantive Leasing Company copper B & M transporting tractor from from U.S.C. § knowing copper. Chicago theft of Aft- for use in the Greenfield stealing a disabled er Three Count have been stolen. Freight Motor trailer in the Daniels one other codefendant Bartkus concealing Greenfield, cargo they drove disposing they Terminal they Chicago. derogation Chicago, In met been knew to have stolen Only Carrino, codefendant, another who Bartkus and John of 18 U.S.C. § 2315. space he proceeded led them to the warehouse had three co- to trial since they guilty to un- pleas rented. were unable Since defendants entered Young granted copper, load all contacted on mo- another was a severance Nitti, coconspira- defend- Frank an tion of the Both unindicted Government. arrange tor, disposition guilty for the jury ants were found *4 reported remaining portion. charged. Nitti Post-trial motions denied Young copper in custody that he would store the each was sentenced to and garage Tobias, Samuel a code- Attorney General for concurrent garage proved years. Tobias’ fendant. When terms of five small, to be too the stolen truck and sufficiency Greer contests the of the trailer location in were sent another evidence to sustain his conviction under Chicago they by were recovered Two, Counts and One constitutional Investigation agents. Federal Bureau of propriety of Two venue for Count in the Young phone also related two conver- Illinois, Northern District of and cites sations with theft Greer after the had stemming trial several prosecutor’s errors from the He stated that called Greer occurred. joinder conduct and inquire money him to where the from kept. Greer’s case with that of Bartkus. being copper the sale of the joins challenges Bartkus in Greer’s calling He then described Greer ar- applicable” additionally “where charges range meeting purpose a for the of dis- arising prosecu- error from the tributing According proceeds. closing tor’s remarks. Young, however, appeared Greer never A outline of brief the evidence is in to claim his share. principal order. The for witness also Carrino to Government called Young, Government was Ellis an unin- renting testify to the ware- coconspirator. Young dicted testified copper house and the sale of remain- Chicago that while at home in in June ing implicated in the warehouse. He Al- phone 1966 he a received call from Greer phonse by describing Bartkus Bartkus’ in which Greer stated that he “had finding place role in copper.1 a store the something” Young. Young, joined subsequent He also described a by Phillip Harty, Kurtz and Thomas two Young conversation with in- codefendants, Harty, and Robert an un- “hot,” Young that the formed load coconspirator, indicted drove from Chi- by that he had been forced Bartkus to cago to Carmel, Greer’s home in Indiana. removed, have it and that Bartkus had Young related Greer’s statement: “He disposition. been instrumental in its told me copper, he had a little the driver The remainder of the Government’s was broken down and had transmission ease consisted of who witnesses de- trouble, and that we would have three scribed the interstate character days load, with the if we could handle copper shipment, point origin, its its it.” Greer further described the load of destination, and its value. Allen Her- copper its location. eamp, employed truck driver

1. This was testimony corroborated an officer of the association that owned building in which the load was stored. Freight Company, principal Motor testi- is liable Daniels for the offense. belong- carrying copper According defense, fied to ing a load of evidence Copper Brass, supports only charge aiding to Revere Inc. York, Rome, abetting copper’s theft, New destined St. not aid- but Repairs abetting transportation truck Louis. stopping necessitated copper; lacking proof Greenfield June knew that Greer storing containing plans the trailer of the thieves’ for the interstate conveyance copper, in the local Daniels terminal. the Govern- Hercamp charge complici- testified that he next saw the ment not him with ty Illinois, in Cicero, transportation. trailer at which time in its The Govern- missing. position most itsof load was ment’s is that an “aider and responsible only abettor” is for the presented Counsel for Bartkus no wit- facilitates, immediate acts he but also nesses on Bartkus’ behalf. offered likely consequences for the other of his several who testified to his witnesses acts. Since of the sto- presence in Florida when offense goods consequence len was a foreseeable was committed. Morris Evans stated theft, of their Government need June 1966 several men visited specific show to aid in intent this act. home, including Greer’s Carmel man addition, In the Government maintains “Rebel,” Young’s nicknamed which was knowledge of the interstate com- nickname, away while Greer was ponent pre- of a criminal act is never temporarily living Evans was there. *5 requisite finding to a of criminal lia- According Evans, to when Greer return- bility. Young ed from Florida he called in Chi- cago express to disapproval his of We think the Government’s standard Young’s visits his home in his ab- for one who aids and abets a crime far sence. Greer also took the stand and de- Congress specifically too pro- broad. meeting Young scribed his first with separate vided for three crimes: theft when both were goods incarcerated in the fed- of which were in com- interstate penitentiary eral in Terre Haute and (18 659), transpor- merce U.S.C. § meeting later in Greer’s home goods on Me- tation of stolen in interstate com- Day morial in 1966. He then (18 related 2314), merce U.S.C. and know- § stay of details in be- goods Florida (18 sale of such § U.S.C. July 6, tween June 16 and 1966.2 In transportation dispo- Since and addition, Clyde Smith, manager goods always sition of stolen are “like-' the Daniels terminal in ly” Greenfield consequences was of their theft, Gov- and, though called to the stand he admit- effectively ernment’s standard obliter- knowing Greer, ted having denied told ates these distinctions. No matter what anyone about the location or contents of participation a defendant’s was in the shipment. theft, responsible initial he becomes subsequent “likely” stages. all Under I approach, pun- this the cumulation of Greer claims that this evidence always important ishments will be an support is insufficient the substan danger. charge tive in Count Two of the indict transport ment Moreover, he “did and cause the Government’s transported to be prevailing in standard interstate com contradicts the case 40,400 pounds aiding merce” abetting. law on which The semi he knew to have been Peoni, stolen. The nal case is United Gov States v. theory (2d 1938), ernment’s is that Greer aided in Judge in aiding abetted of Learned Hand states that copper and, such, abetting requires as under 18 U.S.C. defend- § witnesses, Miller, being during part One Greer’s in Carl testified with Greer Florida period. of this leading immediately sort associate himself with the chain events ant “in some Thus, venture, participate in it “getaway” he as to it. the driver of a bring something during robbery only in wishes car who intends theft, about, charged that he seek his action make to aid in the can be with gen- suggests transporting two the crime of goods it succeed.”3 This the stolen abetting aiding although components participation eral subsequent transportation on the of a defendant —an act was inadver- requisite tent. which contributes to the execution intent be in- com- physical crime the intent to in its ferred aid when defendant’s Analysis complicated, participation how- mission. is the course of events is ever, there is an extended But course substantial. where the relation- though where, ship of criminal conduct and between the acts and defendant’s participation limited the is crime for ultimate which he is defendant’s charged aiding stage, to one he is attenuated case, abetting subsequent require one. We instant would some showing accomplice specific in, must consider how far then intent aid specific knowledge liability of, charged. include can be extended to the crime ones) (or other than the one crimes participation Greer’s limit immediately accomplice aided. triggering by providing toed the theft Accomplice liability is neces thieves information about Young general sarily principles copper. limited testified that Greer liability. jury cop of criminal To allow a alerted him to the existence of the per, location, later, an intent its to infer to aid the commis described aft theft, phoned one sion of offense from the demon er the him in order to proceeds. intent to aid in earlier claim the strated another Since the Govern physical ment because later crime a fore does claim Greer offense one, ly consequence present crime, partici seeable at the the earlier Greer’s pation liability only “accessory is showing base criminal amounts to that of an negligence such, before fact.”5 As order rather than crim *6 2.04, prove complicity to inal Model Penal the la intent. Code Greer’s with § (Tent. 1, 1953). stages namely, of the Comment Draft ter No. crime— goods compo transportation The court will relax the intent of the Gov —the aiding abetting in nent of a lim ernment must to show that he intended agree, post-theft plans, of We ited number aid in knew situations. that he instance, plans, can be that a defendant details of thieves’ travel such responsible goods. specific held as abettor destination of the an aider and as no of a crime even where is di Government made such there Since the no proof showing, proof in rect that he intended to aid find insufficient substantially if crime, involved in a conviction on count.6 sustain this Varelli, fact, principal. 3. United v. F.2d See States 407 after the or as a before or (7th 1969) ; Cir. v. are 735 Turnipseed, United States law characterizations common (7th determining however, useful, 272 106 Cir. in when 1959). participation is sufficient defendant's accomplice an and thus him make require are in There two situations additional application of this section. requirement which the intent accom- F.Supp. Pritchard, v. 55 States United liability plice felony- relaxed, aff’d, (W.D.S.C.), Waters v. United misdemeanor-manslaughter murder 1944). (4th States, F.2d 240 Cir. Aiding situations. in of the commission felony overturning in con- results an unintended are 6. Since we Greer’s subjects accomplice liability death Two, under Count we need viction for murder. argument on the constitutional reach his impropriety in venue the Northern of 5. 18 U.S.C. abolished the differentials § punishment under that count. of Illinois resulted from char- District acterizing accessory a defendant as an participants

II ditional is inferred from plan the nature of the to which the de- argues also evidence is fendant has consented. un- insufficient sustain conviction One, conspiracy der count. Count This is the case even in so-called charges He maintains that Count One conspiracies” partici “chain in which multiple conspiracies since it includes pants precisely who not know of goods, “subsequent receivers” stolen perform each other’s existence different alleges one, objects and since it sequence. See, g., Note, activities e. conspiracy Multiple Conspira Federal Treatment of goods in interstate commerce. Greer cies, (1957). Thus, 57 Col.L.Rev. 390 only conspiracy contends that Bruno, in United States 105 F.2d 921 v. which he could have been is one (2d Cir.), grounds, rev’d other object theft of the whose sole was the U.S. 84 L.Ed. 257 participants copper, whose sole (1939), where the court found the com the four di- himself and codefendants plan required participation mon rectly involved the theft. parties, additional defendant was single conspiracy held to of a be The claim that Greer had no composed smugglers narcotics, sev alleged “connection” with four conspirators co- of his middlemen, groups eral of re and two not, by itself, does sustain also, tailers. See Blumenthal v. United charge conspiracies. multiple States, supra. Greer, however, points to Conspiracy require di law does not cases in which courts have hesitated coconspirators rect connection with all purchasers characterize ultimate or sell person-to-person the sense com goods conspirators ers of stolen munication, specific knowledge or even immediately those in the crim involved of their Once “essential identities. Braico, inal venture. v. United States plan” discovered, nature of the (7th Cir.), denied, 422 F.2d 543 cert. shown, the defendant’s adherence U.S. 90 S.Ct. 26 L.Ed.2d 74 ignorance participants of some of (1970); Ford, United F. States plan does not the defendant relieve 2d 950 case, The instant liability. Blumenthal United believe, presents no diffi such 332 U.S. 68 S.Ct. participants whom culties. Those L.Ed. 154 The rule has its most “subsequent Greer calls receivers” were cogent restatement in United States v. far more involved in taking entire under Andolschek, (2d 142 F.2d buyers were the in Braico than 1944): began responsibilities and Ford whose party It is true that a to a *7 exchange money and of ended with identity, need not know the or even goods. filled Since a trailer with confederates; number, his of 40,400 pounds copper involved of was upon when he embarks a criminal ven- here, required disposition elaborate ar outline, ture of indefinite he takes great rangements of and a deal contact chances as to its content and member- Moreover, principal with the thieves. ship, they so be it that fall within finding complicity of the difficulties be purposes common as under- the end of the chain and tween those at Nevertheless, stands them. he must immediately in the ven those involved purposes, be aware of those must ac- may ture, apply at not as between those cept implication, them and their if he may beginning chain, of the who be may is to be with what others instigators plot, as of characterized do in execution of them. participants. subsequent Greer’s and argument, apparent Accord, Battaglia, United which is the con States v. 304, Ford, (7th 1968), 394 F.2d deficient 311 verse of Braico and is Cir. cert. denied, instigator 924, 883, 401 chain could U.S. 91 S.Ct. a 27 since Knowledge readily L.Ed.2d 828 Andol- of ad- the rule of fall within

1071 upon conspirator a crim- while one who “embarks Greer is liable as a schek as steal, dispose transport, cop 142 of indefinite outline.” inal venture per, accomplice liability F.2d at as an can 507. only However, extend the theft. this question fundamental The apparent inconsistency is resolved when assented to and is what the defendant conspiracy analyzed. nature law be whether that assent can construed as agreement. conspiracy The nub of a including subsequent participants and suggested, Conspiracy, is more it is than analysis This kind of their activities. crime; species conspira of inchoate simplified conspiracy al setting up tors are held liable leged single only object on a focuses continuing structure which becomes supra. States, in Blumenthal United v. point Society adjudges focal for crimes. However, conspiracy multiple with ob only by the itself harmed not attainment jects multiple parties can be also objectives of the of the unlawful con single conspiracy held constitute spiracy very conspiracy’s but ex long integrally related, objects as the are regards istence which the law as mak such of that with that “the success objectives attainment unlawful immediately [the defendant] likely more in the than case individu upon dependent concerned, the suc Developments al action. in the Law— United cess Bruno, States v. whole.” Conspiracy, Criminal 72 Harv.L.Rev. 922. F.2d at Kotteakos 105 Cf. (1959). Hence, agree 920 we infer 768, States, 750, v. United U.S. dispose transport cop ment to (1946).7 In S.Ct. 90 L.Ed. 1557 per complicity from in a structure that objects case, of the con instant readily led to that end where do not spiracy theft, transportation, and dis — infer intent to commit the same substantive position' indispensable to the suc —are Though are crim es.8 there venture. As have cess of the entire important definite limits to a con 40,400 pounds cop indicated, theft of spirator’s liability, see, g., e. Kotteakos per required planning cooperation; States, supra v. United U.S. at each “link” in the scheme must have as liability is 66 S.Ct. that not as sumed the unlawful venture could that liability of circumscribed as the an acc stop task alone. Thus we with their omplice.9 later, indispensable infer consent to the stages pre consent to Greer’s addition, In attacks the liminary ones. validity under of his conviction Count One based on the Government’s failure it, On face of seems this analysis aiding to show the defendant knew of inconsistent our abetting. ship- “interstate character We have stated States, ; Battaglia, (1959) v. United In Pettibone 394 F.2d United States (7th 1968), denied, L.Ed. 419 cert. 148 U.S. ; Fulbright (1893) United U.S. 91 S.Ct. 27 L.Ed.2d 828 (1971), upon distinc based the dissent was general objects made tion is between belief the two of the con myriad objects, extortion, spiracy, of which the some fraud and in, directly integrally involved defendant was related. The dissent found *8 particu specific conspiracy to commit the be held to con defendant could have only fraud, offense. sented was lar substantive while extortion product of the individual initiative of interpretation does make it 9. While this a codefendant. likely will be that defendants more charged conspiracies holding different, however, to violate all 8. Our would be consequence Act, participation the that three of if sections Greer were punishment object the less in a severe whose sole was the single participation in a con- for of the or levied its dis- participation Developments spiracy in position. for rather than in the Law— separate 920, Conspiracy, crimes. three substantive Harv.L.Rev. Criminal 72 1072 subsequent upon appearance pro- of its automatic noun, of the

ment” was aware Upon transportation. appears “I.” While Greer examination it interstate knowledge prosecutor that in of the inter each statement that the concedes restating only component crime is not a was of Government’s state theory impeachment necessary par- substantive element of to the suggests charged, ticular witness There no he a different crime involved. suggestion conspiracy. personal knowledge We find no above standard support beyond opinions jury. position in the evidence before for this prosecutor’s Greer also In United v. cites of this circuit. Pranno, States com- 387, (7th Clyde testimony ment 389 about 385 F.2d Smith, 1967), 944, possible denied, cert. 88 S. “Isn’t it that didn’t 390 U.S. 1028, (1968), Clyde defense, 1132 the believe Ct. 19 L.Ed.2d The Smith?” however, proved response by spe- invited court stated: “All that must be that cifically conspir charging defendants that that Government extortion, did they ed commit that the nat call Smith because knew threat, carrying implicate out their would not ural effect of Greer. Lawn See they not, States, of it or United whether were conscious n. U.S. would affect commerce.” See United S.Ct. L.Ed.2d 321 supra. holding Battaglia, States v. addition, alleges In Greer mis Supreme Coy, of the in In re Court when, conduct the conclusion at 731, 8 32 L.Ed. U.S. S.Ct. defense, prosecutor requested, in (1888), and in Screws v. dicta United presence jury, of the a continuance U.S. get fly up “to witness here suggest (1945), 89 L.Ed. 1495 the same Meyer, judge Ft. Florida.” The turned Developments conclusion. See in the request required down all that Conspiracy, supra Law — Criminal at testimony rebuttal day. that be concluded request Greer maintains that ploy part prosecutor was a on the Ill who, having only discovered Greer’s afternoon, Florida alibi could to the We turn trial errors now have had time to find a wit rebuttal alleged by defendants, both Greer ness Florida. If the had defense misjoin claim Bartkus. We find the positively that shown there nowas such of the der trials of Bartkus Greer request time the witness at argument to without be merit. Greer’s made, or if had con the Government so most introduced evidence at ceded, prosecutor’s remarks would dealt trial with matters with which he clearly However, warrant reversal. had “no connection is rooted whatever” duplicity cannot assume on the conspiracy count, in his attack on the strength solely on the Government any an attack we not sustained. In have charges. of Greer’s Since no such event, under the standards United made, showing was we cannot sustain Tanner, States F.2d 128 finding of misconduct. proved 1972), more must be if the defendant is meet his burden of dem onstrating prejudice. IV addition, points In Finally, Bartkus claims prosecutor alleged prosecutor several commenting instances of erred misconduct. He notes statements take the made failure to stand violation prosecutor which he fifth used the U.S.C. 3481 amend § pronoun, repeated “I.” While we have ment. The Government answers ly prosecutor’s attorney responsi underscored the Bartkus’ invited comment such bility keeping personal closing opinion that, his own remarks *9 proceedings, any sug- event, out the reversal is not the record of this ease

1073 re- to law defendant chose reiterate gests took the misconduct that whatever lating testify. to a defendant’s failure to regard “harmless.” place in this course, analysis our would differ- Of be attorney had stated: Bartkus’ ent if the counsel’s could defense remarks up you, it to is His Honor told Now as interpreted advancing specific rea- be bring accusation to those who the testify or sons for his client’s failure to beyond prove a reason- that accusation implying that wanted defendant the defend- doubt. is not for able It doing testify prevented to but was from Certainly prove anything. not ant by attorney. so But that his we find country to in this a defendant interpretation neither is warranted innocence, prove inso have his the defense counsel’sstatements. becomes, any it at criminal case prosecutor If re- had limited his defendant’s, case, end of not sponse jurors remark that to the lawyer’s as to decision wheth- but his what “were not he [Bartkus’ bound my is That de- er or not he testifies. attorney] you,” told we would have cision this case. in- found no That remark was error. During prosecutor’s closing remarks apparently it directed nocuous since was following colloquy occurred: credibility attorney’s more to than to Cagney: Maloney you, Mr. Mr. told However, actions. the defendant’s you gentlemen, ladies and and he told prosecutor’s statement, that second ostensibly what reasons were. are other considerations that “[t]here say you you IBut were not bound attorney’s why enter an mind man you. to what he told might testify,” a does amount There are that other considerations vague suggestion one—that —albeit attorney’s why enter an mind the man attorney’s prompted trial were tactics might testify. guilt. Impermissible the defendant’s Maloney: again Mr. I want ob- prosecutorial quite comment has been your ject, record, for the Honor. broadly the lan- defined. “[W]hether guage manifestly intended used Court: Overruled. jury was of such character agree that the We do not remarks necessarily naturally would take prosecu- attorney justified the Bartkus’ to be on the failure comment response. tor’s The defense counsel was testify.” Hayes United accused to v. doing attempting no more than dis- (9th 816 Cir. 368 natural, though impermissible, count the 1966). Though question close is guilt juries inferences of draw one, prosecutor’s re- we hold from a to take defendant’s failure improper. marks are relevant stand. He restated the law— proof prose- Ordinarily that the cution, on the this violation a serious burden of g., See, that the need not come one and e. defendant warrants reversal. prosecution California, 85 Griffin forth evidence until U.S. v. rehearing implied meets that then de burden—and S.Ct. L.Ed.2d nied, 1797, 14 L. that as a result there technical rea- S.Ct. U.S. testify (1965); sons for failure to Ed.2d United States defendant’s lawyer (3d Ward, which a must consider. Under 168 F.2d circumstances, However, agree these the rule that an ad- with the Government may by prosecutor’s re- er vocate his comments invite a this instance the sponse beyond opponent in an or- area ror was harmless a reasonable dinarily purview Chapman outside v. Cal clos- doubt under the rule of inapplicable. ifornia, remarks See L. United 386 U.S. Guajardo-Melendez, attorney re States F.2d 35 Ed.2d Bartkus’ 1968). Certainly adequate quested cannot curative and obtained legitimize judge. what in other instances would More trial from the instructions prosecutorial over, be misconduct because indicates the record review of *10 against attorney the Bartkus was over- but case his

that whelming. not and therefore testify. did not he step next The reasonable process of the inferential the in Accordingly, affirm Bartkus’ con- jury’s minds would be that defend- the Three of viction under Counts One ant could have testified to innocence his affirm the also Greer’s indictment. We permitted that he but was not to do so for under Count conviction One, lawyer his as it “is not for the de- aid- but reverse his conviction for prove anything.” fendant to abetting Two.10 under Count prosecutor’s I do not the find state- Judge (concurring). PELL, entirely responsive Circuit ment defense to counsel’s remarks as counsel did defense approve of Chief I concur really “jury ostensibly not tell excep- the what Judge Swygert’s opinion part his reasons were.” This marks, however, re- his I part as to which tion of IV thereof apparently to found error that if there had been concur be innocuous. respectfully I cannot harmless, but challenged prosecutor’s concur that challenge The is to to ef- that remarks erroneous. were fect that there other considerations were attorney’s “why that enter an mind Bartkus’ I do not read the remarks of might testify.” man appears It Judge Swygert. to attorney I fail as does me when that the defense any counsel states the remarks indication in find effect, testify,” “I did not let him reasons were technical that there leaving open implica- as he did testify here failure to defendant’s might tion that defendant otherwise lawyer had to consider. testified, prosecutor have is not en- Swygert’s opin- Judge is stated in It tering impropriety an area of in the attorney rele- restated the ion general concerning remark “other con- proof is the burden vant law—“that siderations.” prosecution, that the defendant on expressed my opinion evidence until I not come forth with need have herein prosecution notwithstanding meets that burden.”- the fact I am con- curring particular in the result on this question However, aside from the matter, put Ias feel it is unfortunate to (other any ever need there is whether stamp approval of this court practical ones) a defendant than the remarks of the defense counsel since evidence, the remarks forth with come only implications similar I remarks with the proof say be- burden of see therein well be cases made prose- yond doubt is on a reasonable liability question. is a close does not have cution and the defendant preclude prose- decision here would including prove anything inno- responding, leaving cutor from thus an stopped I had there cence. counsel If improper implication unchallenged. any opened doors he had could find prosecutorial comment. general attorneys Here both used lan- however, stop, guage implications but He did not and the re- vague. equally matter burden switched from the marks each I were proof prosecutor’s decision as to who made would remarks hold testify. I clearly accept- defendant would whether the and that the invited message jury read in this a clear in- ance did not bounds of the exceed willing effect that Bartkus was to the vitation. though Even was sentenced under articulated warranted the standards counts, Tanner, terms on the two concurrent United States v. F.2d 128 resentencing think that do not either remaining count retrial on the valid