dissenting.
In spite of a criminal trial, a § 2255 hearing and two appeals, it now appears *90that this dead cat will finally be resurrected.
There is no doubt from the evidence adduced at the § 2255 hearing that the trial judge, in an unreported part of the charge conference,1 warned the appellant’s attorneys to avoid any argument concerning the fear of the victim. As found by the majority, all of the evidence presented preponderates to this conclusion. Assuming these facts to be true, I dissent because I cannot agree with the majority view that the judge’s order “reasonably led Kastenbaum’s attorneys to refrain from arguing his lack of involvement with the acts of intimidation because they feared being cited for criminal contempt,” 588 F.2d at 140.
A panel of this court has already determined that the trial judge properly ordered Kastenbaum’s attorneys to refrain from arguing to the jury about the victim’s fear. 451 F.2d at 540, 588 F.2d at 189. At the hearing on the motion to vacate sentence, the judge said, “[I]f any one of [the defense attorneys] had gotten up there and said, ‘Now, ladies and gentlemen of the jury, you have heard some testimony about a dead cat. I submit to you that there isn’t a bit of evidence connecting that with Mr. Kastenbaum,’ I wouldn’t have said a word. . Which would be a proper argument to make, incidentally.” Transcript at 28.
There is little evidence that any of the defense attorneys understood the judge to tell them that they could not refer to the failure of the government to connect the defendants and the acts of intimidation.2
In any case, I cannot agree that the defense attorneys could have “reasonably” understood the court’s instruction that they not comment on the victim’s state of mind to mean they could not discuss the connection between the defendants and the acts of intimidation; this argument relates to the defendant’s intent, not the victim’s fear. Apparently the question of fear in the intended victim was mentioned more than once during the conferences between counsel and the court.3 It was the obvious purpose of the judge to make clear his ruling so as to avoid another trial. Unfortunately, it appears that all his efforts were unsuccessful. If there was any confusion, “it would have been a simple matter indeed to request clarification,” Jim Walter Resources v. International Union, United Mine Workers of America, 609 F.2d 165, 168 (5th Cir. 1980). For whatever reason, the defendant’s attorneys chose not to follow that course, but this does not require us to vacate the sentence.
. The affidavits of the three defense attorneys, as well as testimony at the § 2255 hearing, indicate that any warning to counsel took place at the charge conference. Thus, even if the threat had the effect the majority finds it to have had, it was not made in front of the jury, and the statement that “[T]he trial judge’s threat might well have caused the jury to be prejudiced against Kastenbaum” is misleading, even if it means only that Kastenbaum was harmed because he was unable to make certain arguments. In the previous appeal of this case, we stated that the decision on the direct appeal upheld the trial court’s order not to mention the victim’s fear in jury arguments. 588 F.2d at 139.
. The only evidence is quoted in footnote 2, ante: Question by the U. S. Attorney: “And you could have argued that the defendant didn’t do the things that the Government presented, like killing the cat and certain other acts that the Government alleged? A. Do you mean and still keep within the confines of his ruling? I doubt that. I really don’t know.”
. The transcript of the charge conference is not available, but the United States indicates that the judge focused on the irrelevance of the victim’s state of mind in a prosecution for attempted extortion, and stated that the defendant’s state of mind was in issue. Brief of the United States at 6 n. 8, quoting conference transcript at 47.