I concur in the result, but I think it unnecessary that we consider the constitutional question .raised by appellant.
The rule is well established, both in this circuit and in the Supreme Court, that where there is a conviction on several "counts and the sentences are concurrent, and where there is no question as to the validity of the conviction on certain of the counts, attacks on other counts need not be considered. One of the latest cases in- this circuit is Gabriel v. United States, 9 Cir., 1966, 366 F.2d 726, 727. I think that this rule is applicable here.
1. I find nothing in the Constitution or the federal statutes which would have prevented the United States from obtaining a second indictment which would include only counts 9 through 15 of the indictment that is before us. See 4 Wharton, Criminal Law and Procedure 520, Thompson v. United States, 9 Cir., 1913, 202 F. 401, 404; United States v. Strewl, 2 Cir., 1938, 99 F.2d 474, 477. There could then have been two trials. One would be a re-trial on the old indictment, and the other would be a separate trial on the new indictment.
2. Under the Federal Rules of Criminal Procedure the trial court has wide discretion to consolidate separate indictments for trial. (See Rule 13) This rule authorizes the court to order two indictments tried together if the offenses could have been joined in a single indictment. Under Rule 8 the offenses here could have been so joined because they are “of the same or similar character.” Consequently, if there had been a new indictment which contained only counts 9 through 15 of the second indictment in this case, the court could have ordered it tried along with the re-trial of the first indictment, thus placing appellant in the same position as that in which she found herself at the second trial.
3. This is a case in which the evidence relating to each count was pointed specifically to that count and I do not think it could be claimed — indeed, it is not claimed — that the jury was confused in performing its duty to render a separate verdict on each count based only upon the evidence relating to that count. I think the jury demonstrated that it was not confused. It returned verdicts of guilty on counts 1 through 6 and not guilty on counts 7 and 8, these being the pounts that had been included in the first indictment. It returned verdicts of guilty on counts 10, 11, 12, 13 and 15, these being some of the new counts, and not guilty on count 9, which is also one of the new counts.
It follows from the foregoing that the verdicts of guilty on counts 10, 11, 12, 13 and 15 are valid and are not subject to attack on the ground of double jeopardy, since appellant was not charged with these offenses in the first indictment. All sentences were concurrent. Therefore, we need not consider the validity of the conviction on counts 1 through 6.