(concurring in part and dissenting in part).
I concur with the opinion of the court for the reasons stated therein, with the exception of the reversal of the conspiracy counts. As to the conspiracy counts, I would affirm all three convictions.
The three defendants were partners in the operation of a large illegal gambling enterprise in Nashville, Tennessee, for thirteen years. While defendant Barnes was the manager, the testimony clearly shows that when he was absent, defendants Washer and Carney substituted for him as acting manager. Defendant Carney had an apartment on the premises. We do not need to decide whether these facts alone were sufficient to allow a jury to infer that defendants Washer and Carney knew or should have known that the gambling partnership through manager Barnes was purchasing gambling supplies and cashing checks in interstate commerce in violation of the Interstate Travel Act, 18 U.S.C. § 1952.
Defendant Washer had also participated with Barnes in setting up a savings *296account which served for ten years as a guarantee for checks cashed by the gambling partnership. Defendants Washer and Carney from time to time as acting managers cashed checks for patrons of the gambling club.
The prosecution proved that two checks were cashed in interstate commerce by Barnes while the check cashing guarantee was in existence. The evidence discloses no limitation on the use of the guarantee. Washer and Carney were not shown to have specific knowledge of these two checks.
On these facts I believe the jury had the right to view Barnes as a fully authorized agent of defendants Washer and Carney in cashing the two checks and to find that all three had knowingly engaged in a conspiracy (See 18 U.S.C. § 371) to violate the Interstate Travel Act.
Barnes’ illegal acts in cashing the two interstate checks were wholly natural and foreseeable acts which defendants Washer and Carney were bound to anticipate under the circumstances which they had joined in creating. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).
In Pinkerton the Court said:
“It is settled that ‘an overt act of one partner may be the act of all without any new agreement specifically directed to that act.’ United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289.” Pinkerton v. United States, 328 U.S. 640, 646-647, 66 S.Ct. 1180, 1184 (1946).
In Blumenthal v. United States, the United States Supreme Court said concerning the evidence required to support a conspiracy conviction:
“Secrecy and concealment are essential features of successful conspiracy. The more completely they are achieved, the more successful the crime. Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others. Otherwise the difficulties, not only of discovery, but of certainty in proof and of correlating proof with pleading would become insuperable, and conspirators would go free by their very ingenuity.” Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947) (Footnote omitted).