United States v. Polizzi

BROWNING, Circuit Judge:

I concur in the portions of this opinion prepared by Judges Renfrew and Duniway.

XI. Unitary Crime Contentions

Appellants argue that “this case concerns a unitary event- — -the maintenance of Vegas Frontier Inc. from *897July 27, 1967 to November 27, 1967,” and therefore conviction and punishment on a count charging conspiracy and several counts charging substantive offenses was improper.1 The argument includes two propositions: that Congress did not intend to make conspiracy to violate 18 U.S.C. § 1952 a separate crime from the substantive offense; and that Congress did not intend to allow prosecution as a separate offense of each of several acts of travel where the illegal intent during each act related to the same unlawful activity. Neither proposition has merit.

A.

“The distinctiveness between a substantive offense and a conspiracy to commit it is a postulate of our law. ‘It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.’ ” Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961), quoting Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Accordingly, unless there is specific language to the contrary, Congress presumably intended to permit punishment as separate offenses of both the substantive crime and a conspiracy to commit it. 364 U.S. at 594-595. There is no such language here, in either the statute2 or legislative history.3

B.

Turning to the second proposition, the language of the statute seems unambiguous. The offense defined is an act of travel or use of an interstate facility, with the requisite intent, plus subsequent performance of another act of the kind specified in the statute. Appellants argue, however, that the legislative history indicates that section 1952 was directed at a “course of conduct,” and therefore various acts of travel in furtherance of a single “unlawful activity,” 18 U.S.C. § 1952(b), should be held to *898constitute only one crime. But “the ‘course of conduct’ referred to in the legislative history of Section 1952 refers to the nature of the business promoted or facilitated — and not to the essence of the federal offense, which is ‘travel.’ ” United States v. Teemer, 214 F.Supp. 952, 958 (N.D.W.Va.1963),4 quoted with approval in Katz v. United States, 369 F.2d 130, 135 (9th Cir. 1966).

No appellate court appears to have discussed the proper unit of prosecution under section 1952,5 but similar federal statutes making it a crime to use interstate transportation or communications facilities in aid of illegal purposes have been construed to permit prosecution of each use of such facilities as a separate offense. See, e. g., Sanders v. United States, 415 F.2d 621, 626-627 (5th Cir. 1969); Katz v. United States, supra; Mitchell v. United States, 142 F.2d 480 (10th Cir. 1944). The cases upon which appellants rely (Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), and Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971)) are inapposite.6

In view of the plain import of the language of section 1952, the absence of any contrary indication in the legislative history,7 and the construction *899given comparable statutes over the years, we conclude that each act of travel may be treated as a separate violation of section 1952.

XII. Venue

Appellants raise two venue-related claims. They contend venue was improperly laid in the Central District of California as to some of the substantive counts.8 They also contend the trial court abused its discretion by denying motions under Federal Rule of Criminal Procedure 21(b) to transfer the proceedings to Detroit or Las Vegas.

A.

Appellants argue venue was improperly laid as to certain substantive counts for two reasons. First, relying on United States v. Bozza, 365 F.2d 206 (2d Cir. 1966), they argue that the act of carrying on, or distributing the proceeds of, unlawful activity, required to complete an offense under section 1952, did not occur in the Central District of California, though travel with the requisite intent did. Second, they argue that some of the defendants in each count were charged not with themselves traveling but with aiding and abetting the travel of others. Again, appellants rely on Bozza: “Congress seems to have been content with venue where the defendants’ own accessorial acts were committed or where the crime occurred, without providing still another where the acces-sorial acts of agents took place.” 365 F.2d at 221.

But in Bozza, the offense related to the offense of receiving stolen stamps. As the Bozza court pointed out, this is not “a continuing offense which is ‘held, for venue purposes to have been committed wherever the wrongdoer roamed’ .”, (quoting Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961)) but rather is a “ ‘single act which occurs at one time and at one place in which only it may be tried, although preparation for its commission may take place elsewhere’ ” (quoting Reass v. United States, 99 F.2d 752, 754 (4th Cir. 1938)). 365 F.2d at 220.

In contrast, the offense under section 1952 is one “involving . transportation in interstate commerce,” which by express provision of the general venue statute, “is a continuing offense and . . . may be . . . prosecuted in any district from, through, or into which such commerce . . . moves.” 18 U.S.C. § 3237(a). See United States v. Guinn, 454 F.2d 29, 33 (5th Cir. 1972); cf. United States v. Barnard, 490 F.2d 907, 911 (9th Cir. 1973).

Thus, a defendant can be prosecuted for traveling in violation of section 1952, or for aiding and abetting such travel, in any district in which the travel occurred.

B.

Whether the proceedings should have been transferred is an entirely separate question. Rule 21(b), Federal Rules of Criminal Procedure, permits transfers “[f]or the convenience of parties and witnesses, and in the interest of justice.” Since the decision as to whether to grant such a transfer “must largely rest in the sound judicial discretion of the trial judge,” Wagner v. United States, 416 F.2d 558, 562 (9th Cir. 1969), our review is limited to whether that discretion was abused. We conclude it was not.

*900Appellants’ first motion requested a transfer to Detroit; Las Vegas was also mentioned as a proper venue for trial, but the motion did not request transfer there. In support of their motion, appellants pointed out that most of the appellants and many of the anticipated defense witnesses lived in the Detroit area, and that much of the conduct relevant to the charges occurred there. But relevant conduct had occurred in many places, including the Los Angeles area and nearby Las Vegas, where the business enterprise that defendants allegedly sought to control was located. Nevada law was important to the case, as appellants argued. The relevance of this circumstance is obscure; in any event, it scarcely favored trial in Detroit as against Los Angeles. Both government and defense witnesses were widely dispersed, but 10 of the 31 persons on the government’s list of anticipated witnesses resided in the Los Angeles area. The criminal calendar in the federal district court in Detroit was seriously delayed; the Los Angeles calendar, on the other hand, would permit the early trial for which appellants had repeatedly called. This consideration, admittedly relevant, see Platt v. Minnesota Mining & Manufacturing Company, 376 U.S. 240, 243-244, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), appears to have swung the balance.

On the basis of the information before the trial court, the decision on the first motion seems entirely reasonable. Appellants’ residence was a factor to be considered, but was not controlling. Platt v. Minnesota Mining & Manufacturing Company, supra, 376 U.S. at 245-246; Jones v. Gasch, 131 U.S.App.D.C. 254, 404 F.2d 1231, 1240 n.43 (1967). The considerations for and against a transfer seemed fairly balanced, or at least not so clearly weighted against Los Angeles as the trial forum as to overcome the substantial interest in avoiding the delay that would have followed transfer to Detroit’s congested calendar.

Appellants’ main argument is not that the court abused its discretion in the balance it struck on the facts before it on the first motion. Rather, appellants assert that “the prosecution misrepresented to the court that numerous of its witnesses would be Los Angeles area residents, and that Detroit witnesses desired by appellants would be called by the prosecution itself, thereby obviating some of the prejudice to the defense of a distant trial.”

The trial judge was under no misapprehension regarding the Detroit witnesses when he ruled against the initial motion to transfer; the government had advised the court it did not intend to call more than one or two witnesses from Detroit. It is true that many of the Los Angeles witnesses on the government’s first list disappeared from the second list, filed several months later. But it is hardly surprising that the prosecution’s plans with respect to witnesses changed in the course of preparing this complex case for trial, particularly since government counsel who prepared the first list had been replaced by new government counsel.9 Appellants’ forecasts regarding the number and residence of their witnesses turned out to be no more reliable than the government’s.

Several months after denial of the initial transfer motion, both sides filed new witness lists. The prosecution *901dropped most of its Los Angeles witnesses and added a number from Las Vegas. The defense renewed its motion for change of venue, this time pressing for transfer to Las Vegas. It appeared, however, that the condition of the criminal docket in Las Vegas was such that a reasonably speedy trial could not be obtained, whereas trial in Los Angeles was imminent. The trial court denied the renewed motion both on this ground and because the witnesses then expected to be called resided throughout the country.

This was not an abuse of discretion. It is proper to require a greater showing of inconvenience when a change of venue is sought late in proceedings.10 As the trial court observed, there was no “ideal place for the holding of this trial.” Wherever the trial was held, both sides would bear significant transportation and lodging expenses. Moreover, most of the Las Vegas witnesses were government witnesses; since the government appeared willing to pay the expense of transporting them, it is hard to see how defendants would be more inconvenienced by trial in Los Angeles than in Las Vegas. The improbability of a speedy trial in Las Vegas was a factor entitled to great weight, especially since one defendant had already moved for dismissal on speedy trial grounds.

The motion for change of venue was renewed a third time, after yet another set of witness lists was filed. The trial judge reiterated his belief that only compelling reasons could justify transfer when trial was imminent. For the reasons stated, this final denial was not an abuse of discretion.

XIII. Giordano’s Severance Motions

Appellant Giordano complains that the trial court abused its discretion in denying his motions for severance under Rule 14, Federal Rules of Criminal Procedure, submitted both before and during trial.

Denial of Giordano’s pretrial severance motion was clearly correct. Although Giordano was indicted on only one count, that count charged conspiracy. For obvious reasons, a joint trial is particularly appropriate where conspiracy is charged. Davenport v. United States, 260 F.2d 591, 594 (9th Cir. 1958). See American Bar Association, Standards Related to Joinder and Severance 39 (Approved Draft 1968).

The government represented that Giordano was among the “leaders” in the unlawful scheme and furnished the court with a summary of the evidence it expected to offer linking Giordano to the eohspiracy. Moreover, the government stated that a separate trial would be substantially as long as a joint one, since a full exposition of the entire scheme was necessary to establish the significance of Giordano’s separate conduct. On this record the advantages and economy of a joint trial clearly outweighed the remote possibility of unwarranted prejudice. See United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971).

The balance may not have been so clear when Giordano moved for severance during trial. Although there is no suggestion of bad faith, the evidence against Giordano did not entirely justify government counsel’s optimistic forecast. Nonetheless, there was sufficient evidence other than acts and statements of co-conspirators to show that Giordano participated in the conspiracy. Since this is so, it is difficult to understand how Giordano could have benefited from severance, for evidence of the acts and statements of the other defendants pur*902suant to and in furtherance of the conspiracy would have been admissible against Giordano if tried alone.11 United States v. Kenny, 462 F.2d 1205, 1218 (3d Cir. 1972); see also United States v. Roselli, 432 F.2d 879, 901 (9th Cir. 1970). Moreover, as the government asserted, all or substantially all such evidence probably would have been introduced in a separate trial. It is possible that the government might have considered the time and effort required for a separate trial too great a price to pay for the conviction of Giordano alone, but loss of that possibility hardly demonstrates that Giordano was “prejudiced by a joinder” within the meaning of Rule 14.

The trial judge took great pains to protect Giordano’s right to an independent evaluation by the jury of the evidence against him. Twice during voir dire the court admonished the jury that each defendant — naming them, including Giordano — was entitled to be judged as an individual. No less than six times during instructions to the jury the court stressed the importance of separate determinations of each defendant’s guilt or innocence on the basis of the evidence pertaining to the particular defendant. Several times the court warned that association with participants in a eonspiracy does not prove that a defendant was a member of the conspiracy. This jury’s ability and determination to make discriminating judgments is evidenced by the fact that it did not convict one of the most active participants in the conspiracy, defendant Polizzi, on one of the nine substantive counts on which he was charged. Obviously, this jury did not render a mass judgment. United States v. Berlin, 472 F.2d 13, 15 (9th Cir. 1973). There may be cases in which even careful jury instructions cannot cure the possibility of prejudice by association inherent in conspiracy trials,12 but this was not one of them.

Giving due recognition to the somewhat stricter showing required to justify severance when the trial has been partially or wholly completed,13 we conclude that Giordano’s motions for severance during trial were properly denied.

XIV. Giordano’s Requested Instruction

Giordano rested at the close of the government’s case-in-ehief. He asked for a jury instruction that no evidence introduced thereafter could be considered against him. The request was denied. Giordano’s co-defendants then testified in their own defense. In arguing the case to the jury, the government *903drew implications from this testimony adverse to Giordano.

Giordano’s decision not to offer evidence in his own behalf preserved his right to a review of the denial of his motion for acquittal on the basis of the government’s evidence alone. See United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972). But this is not to say, if denial of the motion to acquit was proper, that the jury was not entitled to consider all of the evidence, including that presented by Giordano’s co-defendants, in determining Giordano’s guilt.

Evidence offered in defense in the trial of a single defendant is available for all purposes, and the rule is the same in a joint trial of multiple defendants — evidence offered by one may support the conviction of the others. See Rickey v. United States, 242 F.2d 583, 586 (5th Cir. 1957); Maupin v. United States, 225 F.2d 680, 682 (10th Cir. 1955). This court has held that the same rule is applicable even to a defendant who has rested at the close of the government’s case, and an instruction of the kind sought by Giordano is therefore properly refused. Brown v. United States, 56 F.2d 997, 999-1000 (9th Cir. 1932).14

There is a substantial reason for the rule. One purpose of a joint trial of defendants allegedly involved in a single scheme is to facilitate evaluation by the jury of the evidence against each defendant in light of the entire course of conduct. “Such procedure not only increases the speed and efficiency of the administration of justice but also serves to give the jury a complete overall view of the whole scheme and helps them to see how each piece fits into the pattern.” Rakes v. United States, 169 F.2d 739, 744 (4th Cir. 1948). See ABA Standards Relating to Joinder and Severance 39 (Approved Draft 1968). This purpose of joinder would be frustrated as to a particular defendant if he could bar consideration as to him of some of the relevant evidence by resting before that evidence was introduced.

As we emphasized in Brown, a defendant who rests his case may nonetheless cross-examine or introduce evidence to impeach or contradict a co-defendant who testifies thereafter. See also United States v. Zambrano, 421 F.2d 761, 763 (3d Cir. 1970). In the present case, as in Brown, there was no request to cross-examine the co-defendants or to admit rebuttal evidence. It is even clearer here than in Brown that “if such request had been made, it would have been granted,” 56 F.2d 1000, since the trial judge asked Giordano’s attorney after each defense witness whether he had any questions to ask by way of cross-examination.15

XV. Sufficiency of the Evidence— Giordano

We consider Giordano’s contention that the evidence was insufficient as to him separately from the same contention as to other defendants. • The case *904against Giordano was the weakest; and, unlike other defendants, Giordano did not waive his right to review of the motion to acquit made at the close of the government’s case. For the latter reason, we consider only the evidence produced against Giordano in the prosecution’s case-in-chief.

As Giordano points out, the government offered no direct evidence of his participation in the conspiracy.16 But “circumstantial evidence is not inherently less probative than direct evidence,” United States v. Nelson, 419 F.2d 1237, 1239 (9th Cir. 1969), and, in many conspiracy cases, is the only kind of evidence available. White v. United States, 394 F.2d 49, 51 (9th Cir. 1968). Thus, denial of the motion to acquit is subject to the same standard on review as it would be if there were direct evidence of guilt: whether “jurors reasonably could decide that they would not hesitate to act in their own serious affairs upon factual assumptions as probable as the conclusion” that Giordano participated in the conspiracy. United States v. Nelson, supra, 419 F.2d at 1245.

The government’s theory was that at Zerilli’s solicitation Giordano arranged for the investment of $150,000 in VFI when the enterprise was in critical need of funds; that the investment was made through Sansone, a St. Louis real estate investor and bank director, acting as a “front”; and that following the investment Giordano participated at various critical stages in the illegal enterprise.

Some of the government’s circumstantial evidence is described briefly in the margin.17 Possibly the series of events disclosed by the evidence could be ex*905plained as coincidence, or as normal contacts among friends. On the other hand, “[t]he jury undoubtedly could have found these events too interlocked to constitute coincidence” (United States v. White, supra, 394 F.2d at 53); it could have drawn from the events the inferences suggested by the prosecution —that Giordano was brought into the conspiracy at least as early as June; that he arranged for the investment of $150,000 in VFI through Sansone; and that the purpose of Giordano’s five trips to Las Vegas in 1967 was to watch over this hidden interest in VFI and participate in various key decisions. There comes a point when the innocent explanation is so much less likely than the culpable one that jurors properly could decide that a defendant in fact was acting in furtherance of the conspiracy and shared its illegal purpose. We believe that point was reached here as to Giordano.

Three legal arguments subsidiary to Giordano’s challenge to the sufficiency of the evidence should be mentioned.

1. The government called Cus-umano and Sansone as witnesses. Both denied that Giordano was involved in a Cusumano loan to Sansone. Giordano argues that the government is bound by this testimony. But the notion that a party is bound by the testimony of every witness it calls is “long discredited,” Rodgers v. United States 402 F.2d 830, 833 (9th Cir. 1968), and is clearly not the law of this circuit. See cases cited in Rodgers, 402 F.2d at 833, n. 1.

Rodgers does hold that the government cannot rely on an inference when the only evidence presented by the government is inconsistent with the inference the government wishes drawn. However, Rodgers itself acknowledges that this does not “mean that m every case where some of the government’s evidence is arguably contrary to an inference that it wishes to have the jury draw from other evidence, the inference may not be drawn.” 402 F.2d at 834. See also United States v. Payne, 467 F.2d 828, 831 (5th Cir. 1972). Further, in Rodgers the evidence inconsistent with the desired inference was presented by a disinterested witness and was embodied in an uncontested document. Here, Cusumano and Sansone were interested witnesses with motives to dissemble about Giordano’s role, and the prosecution presented a great deal of other evidence, albeit circumstantial, connecting Giordano with the loan. It may be reasonable to require the prosecution to do more than rely on a general inference to counteract its own uneon-tested documentary evidence, but an inference specifically supported by other evidence is not barred simply because it is inconsistent with testimony of witnesses who were called by the government but have every reason to protect the defense.

2. Giordano argues that telephone company records showing calls between telephone numbers assigned to Giordano and Zerilli were inadmissible because there was no direct evidence as to who participated or what was said, citing Laughlin v. United States, 226 F.Supp. 112, 113 (D.D.C.1964). But this case held only that such records were insufficient corroboration in a perjury case, where “direct and positive evidence of falsity of defendant's sworn statement” is required, and “circumstantial evidence thereof is insufficient, no matter how persuasive.” 226 F.Supp. at 114. The Court of Appeals held such records admissible in a conspiracy case, distinguishing the district court’s ruling *906in the earlier perjury case because of the high degree of corroboration necessary in a perjury case. Laughlin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287, 293 (1967).18

Giordano also contends the government cannot rely upon inference to establish the contents of the telephone calls, citing Osborne v. United States 371 F.2d 913, 927-929 (9th Cir. 1967). But in Osborne, each telephone call was the subject of a separate count charging a separate violation of 18 U.S.C. § 1343, “Fraud by wire, radio, or television.” Proof of the contents of the particular telephone call was therefore crucial to conviction on the particular count. In the present case, the exact content of each telephone call is not crucial to conviction; the telephone calls themselves are not the subject of the charge. Proof of their occurrence, especially their timing and frequency, is merely circumstantial evidence tending, with other circumstantial evidence, to show Giordano’s participation in the conspiracy.

3. Giordano makes the same contention with respect to proof regarding his trips to Las Vegas — that no inference can be drawn from the fact that they occurred — and we reject it for the same reasons. He also argues that hotel records evidencing his stays at the Dunes Hotel in Las Vegas in 1967 should not have been admitted because other contemporaneous hotel records were destroyed “in accordance with routine hotel policy” prior to the return of the indictment in 1971. The argument is that if the indictment had been returned earlier the records might have been in existence and might have contained exculpatory or explanatory evidence demonstrating that Giordano’s visit had an innocent purpose. Giordano cites United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

The contention is frivolous. The Sixth Amendment does not apply to pre-indictment delay, 404 U.S. at 313, and Giordano has not shown that the delay involved here violated the Due Process Clause. 404 U.S. at 324-326. We need not consider, therefore, whether suppression of evidence would be a proper remedy if a due process violation had occurred. Cf. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

. The argument does not apply to Emprise Corporation, Rooks, or Giordano, who were each charged and convicted only of conspiracy. The other four defendants were each convicted and sentenced for conspiracy and more than one substantive count. The jail terms were concurrent, but separate fines were imposed on each defendant on the conspiracy count and at least one substantive count. Therefore, each of these defendants was affected adversely by the separate convictions, and the current sentence doctrine is not applicable. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Tucker, 435 F.2d 1017 (9th Cir. 1970).

. See pages 869-871 supra for a discussion of the statute.

. There is no constitutional bar to separate convictions and sentences for the substantive offenses defined by § 1952 and for conspiracy to commit that offense. Nolan v. United States, 423 F.2d 1031, 1047-1048 (10th Cir. 1970). “Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy.” Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). An agreement or common course of conduct among two or more persons is not an essential element of the substantive offense under § 1952: The travel required by § 1952(a) might be accomplished by only one person, and the “business enterprise” required by § 1952(b) (1) also might be conducted by an individual. True, both the legislative history (see United States v. Roselli, 432 F.2d 879, 886 n. 8 (9th Cir. 1970)), and case law (see, e. g., United States v. Donaway, 447 F.2d 940, 944 (9th Cir. 1971)) indicate that § 1952 is not directed against casual and isolated instances of illegal conduct. But neither suggests that the substantive crime requires the participation of a group of people.

Further, the conspiracy alleged here is not merely an agreement to violate state law but an agreement to travel interstate with the intent to promote certain violations of state law. It is distinct from the joint activity that might be involved in running the business enterprise mentioned in § 1952 even if the “business enterprise” language were construed to require more than a sole proprietoiship.

Nor is there any constitutional bar to conviction for both conspiracy and 18 U.S.C. § 2, the aiding and abetting statute underlying the conviction of some of the defendants on some of the substantive counts. United States v. Valencia, 492 F.2d 1071 (9th Cir. 1974); Pereira v. United States, 347 U.S. 1, 11-12, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

. Judge Paul continued, 214 F.Supp. at 958: The phrase seems to refer to the fact that the Act was designed to attack an entrenched operation rather than a sporadic poker game or a floating crap grame. No act of travel is to be deemed unlawful unless the enterprise is a continuing one; but once the continuity of the enterprise is established, any act of travel, with the requisite intent and the subsequent participation, would seem to be a separate offense, even if the travel is a daily or regular event, and thus, perhaps, a “continuing” activity. If this is the plain and literal meaning of the Act, it is within the power of Congress to make each act of travel a unit of prosecution. See, e. g., Mitchell v. United States, 142 F.2d 480 (10th Cir., 1944); and this, in spite of the distinguishable cases of United States v. Universal CIT Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), and Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).

. Separate convictions and sentences for individual acts of travel in violation of 18 U.S.C. § 1952 have been affirmed without discussion of the issue raised here. See, e. g., United States v. McGowan, 423 F.2d 413, 416 (4th Cir. 1970).

. The issue in Braverman was whether a single agreement to commit several criminal acts constituted one or several conspiracies. In the present case only one conspiracy was charged. Bell held that a single act of transporting two women interstate at the same time was one violation of the Mann Act. In the instant case, each substantive charge involved a separate act of travel on a different day. There was no attempt to carve several offenses out of a single transaction.

Universal C.I.T. is somewhat closer on its facts. As the Court pointed out, however, there was specific evidence in the legislative history of the Fair Labor Standards Act that that Congress did not intend each breach of the statutory duty with respect to minimum wages and overtime owed to each employee during each work week to be treated as a separate crime. 344 U.S. at 222-224. Also, the language of the Act was ambiguous as to the proper unit of prosecution. If not construed to limit prosecution to an entire course of conduct, no limit at all was imposed on the number of crimes that could be charged. Here, the statute is unambiguous; it is explicitly directed at acts of travel and use of interstate facilities, and the prosecution can charge only as many separate crimes as there were separate acts of travel or use of interstate facilities. Where the command of the statute as to the unit of the offense is clear, there is no room for application of the so-called “rule of lenity” of the Bell case. See Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). It is true, as appellants point out, that the Supreme Court applied the “rule of lenity” to § 1952 in support of the ruling in Rewis, 401 U.S. at 812, that interstate travel by patrons of a gambling establishment did not violate the Act. But the Court premised this application upon a determination that there was an ambiguity in the language of § 1952 relating to persons covered. 401 U.S. at 811. There is no such ambiguity with respect to the unit of the offense.

. Congress may well have concluded there was a separate social interest in deterring each act of travel in furtherance of an illegal enterprise : each successive trip may increase the success of the illegal activity, and a decision *899not to make a given trip for fear of additional penal consequences could therefore limit the harm to society § 1952 is intended to prevent. Cf. Irby v. United States, 129 U.S.App.D.C. 17, 390 F.2d 432, 434 (1967) (en banc).

. Appellants do not attack venue on the conspiracy count. “[A]n overt act committed in the course of a conspiracy which occurs in a district gives rise to jurisdiction to prosecute the conspirators in that district.” United States v. Barnard, 490 F.2d 907, 910 (9th Cir. 1973). Several consequential overt acts are alleged to have occurred in the Central District of California.

. A situation could arise where the prosecution’s representations to the judge were so far from the mark that they could only be treated as submitted in bad faith to improperly prevent a change of venue. In such a situation, we would look beyond the information presented to the trial judge in determining whether denial of transfer was within the judge’s discretion, since the trial judge has a responsibility to pierce the prosecution’s representations and assure that they are made in good faith. And, if the transfer were initially denied on the basis of prosecution information later shown to have been submitted in bad faith, the trial judge would be obligated to view a renewed motion as if it were an original one, without requiring the especially strong showing that may be required to support a later motion. See note 10 infra.

. Rule 22, Fed.R.Crim.Pr., provides that “[a] motion to transfer under these rules may be made at or before arraignment or at such other times as the court or these rules may prescribe,” suggesting that the court may decline to entertain a late motion. See United States v. Tremont, 351 F.2d 144, 146 (6th Cir. 1965); Cagnina v. United States, 223 F.2d 149, 154 (5th Cir. 1955). Here, there has been a change in the situation since the initial venue decision. Nonetheless, to avoid the obvious opportunity for abuse it was proper to require a greater showing of inconvenience when trial was imminent.

. Giordano stresses tlie fact that a very small proportion of the trial transcript relates directly to him; the government engages in elaborate analyses which, it claims, show that Giordano was not as peripheral to the proceedings as he claims. We do not consider, however, that the exact quantity of evidence relat- . ing to a conspiracy defendant personally is important in determining whether severance should have been granted. Although there are some cases which take this factor into account (see United States v. Branker, 395 F.2d 881, 888 (2d Cir. 1968); United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971)), they .concern defendants against whom conspiracy charges were dismissed during trial. Dismissal of a conspiracy charge does not mean that severance is required. Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). It does, however, shift the balance of factors to be considered, see Schaffer, supra; a separate trial would not entail a replay of the joint conspiracy trial, and much of the evidence admitted in the joint trial could not be considered against the defendant no longer charged with conspiracy. In the instant case, most of the evidence not directed to Giordano personally was nonetheless admissible against him, so that the proportion of personally oriented evidence is not important.

. See Krulewitch v. United States, 336 U.S. 440, 454, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring); United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). But see United States v. Cozzetti, 441 F.2d 344, 349 (9th Cir. 1971); United States v. Patterson, 455 F.2d 264, 266-267 (9th Cir. 1972); United States v. Roselli, 432 F.2d 879, 902 (9th Cir. 1970), all holding that careful jury instructions can be sufficient to guard against this kind of possible prejudice from joinder.

. ABA, Standards Relating to Joinder and Severance 33 (Approved Draft 1968).

. Giordano cites one instance in which the instruction he requests was given, United States v. Schneiderman, 106 F.Supp. 906, 928 (S.D.Calif.1952), but there was no discussion in Schneiderman of the issue. See also United States v. Interstate Engineering Corp., 288 F.Supp. 402, 413-414 (D.N.H.1967); Devitt & Blackmar, Federal Jury Instructions § 10.06 (1970). But see United States v. Zambrano, 421 F.2d 761, 763 (3d Cir. 1970), supporting the Brown holding by necessary implication.

. Because Giordano neither cross-examined his co-defendants nor offered rebuttal evidence, we are not faced, either here or in the next section of this opinion dealing with Giordano’s motion for acquittal, with the problem presented in Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893, 897-898 (1963). In Gephus, the issue was whether a defendant waives his right to test the government’s case-in-chief on appeal if he offers evidence only to counter a co-defendant’s incriminating evidence; the Court of Appeals for the District of Columbia held that there is no waiver. This court has never squarely accepted or rejected the Oephus rule. See United States v. Figuerora-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972); Verdugo v. United States, 402 F.2d 599, 604 n. 4 (9th Cir. 1968).

. Friedman, a co-conspirator who testified for the government, and Feil, another witness who testified directly to the illegal involvement of some defendants, offered no evidence implicating Giordano; none of the four government witnesses who might, on the prosecution’s theory, have known of Giordano’s involvement in the conspiracy, directly implicated him.

. Giordano and Zerilli were close friends. Giordano lived in St. Louis, Zerilli in Detroit. There were telephone calls between Giordano’s home and office and Zerilli’s, as well as other calls charged to Zerilli’s credit card and placed to Giordano’s numbers, at various key times in the course of events between June and November, 1967. Giordano knew the Cusumanos and the Sansones in St. Louis. The Sansones did not know Zerilli.

The need for additional money, which resulted in the issuance of the Class C debentures Sansone later bought, developed in early June. There were calls between telephones listed to Giordano and Zerilli at that time. Zerilli came to St. Louis for two days on June 8.

The Sansones began gathering money for their VFI investment after Zerilli visited St. Louis, but before the Glass C debentures in which they invested were officially issued. They could have learned about the investment possibility only from a person having knowledge of the inner operations of VFI.

In early August, Giordano repaid an overdue loan to the Cusumano family trust. Less than three weeks later, Sansone took out a loan from the same trust. This loan was part of tlie money Sansone eventually invested in VFI. The Sansone loan was the only business transaction ever consummated between Sansone and the Cusumano family. It was unsecured. Although the VFI debentures in which San-sone invested yielded 4% interest, the loan from Cusumano was at 7%, an anomaly for which Sansone had no convincing explanation.

The Sansone investment was withdrawn less than 60 days after it was made, after Sansone was told by the Nevada Gaming Commission that he would have to apply for a gaming license, disclose the source of the invested funds, and provide fingerpints. Sansone testified that he withdrew only because, “I never anticipated that I would have to be classified as a gambler when I bought the debenture.” But from the outset the Sansones admittedly knew they were investing in a gambling casino.

Giordano made five trips to Las Vegas between July and November, 1967. The Gior-danos have no business interests or relatives in Las Vegas, and Giordano was not a gambler. Each of these trips was closely preceded, or followed, or both, by telephone contact between Giordano telephones and Zerilli telephones or phone calls charged to Zerilli. Each trip coincided with an important event in the unlawful scheme. For example, trips in September and November coincided with the beginning and end of the $150,000 investment.

On September 12 there was a series of phone calls between Zerilli’s home and Gior-dano’s home and business. The next day, San-sone marshaled the entire $150,000. On that same day there was a call from a Zerilli telephone to Giordano’s telephone. On September 14 Sansone flew to Las Vegas with the money *905to make the investment. He checked into the Frontier Hotel. Sixteen minutes later, Gior-dano checked into the Dunes Hotel. Four days later, Sansone deposited the $150,000 in VFI’s account, received the debentures, and left Las Vegas. Giordano departed the following day. In November, a telephone call to Giordano was charged to Zerilli on the same day the Nevada Gaming Commission’s letter was sent to Sansone. Giordano went to Las Vegas on November 9; Zerilli arrived and cheeked into the Frontier Hotel under an assumed name on November 10; and Sansone arrived on November 11 to complete the withdrawal of the $150,000 investment.

. In the conspiracy case, there was evidence identifying the parties to the telephone calls (see 385 F.2d at 293), but the Court of Appeals did not rest admissibility upon this circumstance.