Full opinion text
ROSS, Chief Judge. I. Preliminary Matters. On October 28, 1960, a jury found defendant to be guilty on six counts of an eight-count indictment charging willful evasion of federal income taxes. On November 1, 1960, defendant, appearing pro se, filed a motion for new trial. On November 3,1960, defendant, through his newly retained counsel, filed another motion for new trial, which motion, we take it, supersedes that filed on November 1, 1960. On November 10, 1960, at the request of defendant’s counsel, this Court granted a continuance on the motion for new trial, on the ground that a proper resolution of the motion could not be made until such time as a transcript of the trial record could be made available both to counsel and to this Court. On February 21, 1961 and on March 1, 1961, the parties filed their respective memo-randa of points and authorities in support of or in opposition to the instant motion. Oral argument was had on March 3, 1961, followed by the government’s filing, per stipulation approved by this Court, additional documentation, namely, reports of psychiatrists, to which we refer infra. To begin with, we note that a motion for new trial is addressed to the discretion of this Court. Naval v. United States, 9 Cir., 1960, 278 F.2d 611, 615; Straight v. United States, 9 Cir., 1959, 263 F.2d 811, 813; Adams v. United States, 9 Cir., 1951, 191 F.2d 206, 207; Eagleston v. United States, 9 Cir., 1949, 172 F.2d 194, 200, certiorari denied 1949, 336 U.S. 952, 69 S.Ct. 882, 93 L.Ed. 1107. Furthermore, it is well settled that motions for new trials are not favored. United States v. Costello, 2 Cir., 1958, 255 F.2d 876, 879, certiorari denied, 1958, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551, and that they should be granted only with great caution. United States v. Costello, supra, 255 F.2d at page 879; United States v. Pruitt, D.C.S.D.Tex. 1954, 121 F.Supp. 15, 17, affirmed 5 Cir., 1954, 217 F.2d 648, certiorari denied 1955, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243. Finally, we would point out that harmless error, that is, any error which does not affect substantial rights, shall be disregarded. Federal Rules of Criminal Procedure, Rule 52(a), 18 U.S.C. In other words, in order to prevail on this motion defendant must show that the errors at the trial, if any, were prejudicial to him. United States v. Evett, D.C.N.D. Cal.1946, 65 F.Supp. 151, 152; Union Electric Light & Power Co. v. Snyder Estate Co., D.C.W.D.Mo.1936, 15 F.Supp. 379, 382. And, the burden of demonstrating prejudicial error is on the defendant. United States v. Segelman, D.C.W.D.Pa.1949, 86 F.Supp. 114, 117; cf., United States ex rel Darcy v. Handy, 1956, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (habeas corpus proceeding, wherein the Supreme Court stated that the burden must be sustained “ ‘not as a matter of speculation but as a demonstrable reality.’ ”); cf., Myres v. United States, 8 Cir., 1949, 174 F.2d 329, 332 (appeal), certiorari denied 1949, 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520; see also, United States v. Smith, D.C.D.C.1959, 179 F.Supp. 684, 686-687, which notes that a motion for new trial will be granted only “if the Court finds that there is a reasonable probability that there has been a miscarriage of justice * * Before we proceed to apply these principles to the instant motion, we note that several points of error are alleged in the motion filed on November 3, 1960, but which were not alluded to either in defendant’s memorandum or in his oral argument. Since he has not dignified these matters by way of supporting argument, we take it that he has waived them, as well he might, since they are clearly devoid of merit. II. Waiver of Right to Counsel. The first point which defendant urges is that “defendant was not capable of competently and intelligently waiving his constitutional right to assistance of Counsel.” Although the Sixth Amendment to the United States Constitution preserves the right to- be assisted by counsel, it is clear that said right may be waived. Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268; Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461. Indeed, the constitutional right “does not justify forcing counsel upon an accused who wants none.” Moore v. State of Michigan, 1957, 355 U. S. 155, 161, 78 S.Ct. 191, 195, 2 L.Ed.2d 167; Linden v. Dickson, 9 Cir., 1960, 278 F.2d 755, 763; MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35, 41, certiorari denied 1959, 360 U.S. 935, 79 S.Ct. 1453, 3 L. Ed.2d 1546; United States v. Cantor, 2 Cir., 1954, 217 F.2d 536, 538. And, a conviction will be reversed if it appears that a trial court has compelled a defendant to be represented by counsel against his will. Reynolds v. United States, 9 Cir., 1959, 267 F.2d 235, 236; compare United States v. Cantor, supra, 217 F.2d at page 538, where the court observed that appointment of counsel amounted to “some curtailment of his right to proceed alone, and if any prejudice to the- appellant was the result of that the judgment should be reversed.” There can be no doubt but that defendant had waived his right to assistance of counsel. On June 16, 1960, some two and a half months prior to the commencement of trial, a hearing was held in open court for purpose of arraignment, at which time this Court asked defendant whether he was represented by counsel, to which question defendant responded in the negative. Reporter’s Transcript of Proceedings, vol. I, p. 4, lines 14-16 (hereinafter cited as Tr.). The Court specifically advised him that he had a right to be represented by counsel, Tr., vol. I, p. 4, lines 17-20, and then inquired as to whether- defendant had sufficient funds with which to employ counsel. Tr., vol. I, p. 4, lines 21-22. Mr. Redfield responded by stating: “I do not wish representation.” Tr., vol. I, p. 4, line 23. Within a moment or so, defendant again stated; “ * * * I would prefer to represent myself.” Tr., vol. I,'p. 5, line 3. There then followed the following colloquy : “The Court: Very well. It is your desire, then, that you not be represented, but that you represent yourself in this case? “Mr. Redfield: That is my desire. “The Court: And on the basis of that you have refused the Court’s offer to appoint counsel for you? “Mr. Redfield: Yes, your Honor.” Tr., vol. I, p. 5, lines 9-15. There followed various hearings and informal conferences between defendant and this Court, all of which will be discussed presently. However, on the first day of the trial, October 4, 1960, the transcript shows the following: “The Court: The record will indicate that the defendant, LaVere Redfield, has heretofore waived the right to have an attorney, and has elected to represent himself. “Is that correct, Mr. Redfield? “Mr. Redfield: That is so, your Honor.” Tr., vol. I, p. 39, lines 24-25, p. 40, lines 1-3. Since the record is crystal clear that there was a waiver of counsel, the remaining question is whether there has been a competent, intelligent and understanding waiver, which problem we shall deal with in Section III, infra. But, we must first consider defendant’s argument, raised in his memorandum at page 6, that “the record in the case at bar does not establish that the Court made any determination as to whether or not the defendant competently and intelligently waived his right to Counsel.” This argument was extended in the March 3, 1961 hearing, when defendant apparently took the position that a new trial was required because this Court allegedly did not make a finding of record. Indeed, if we understand him, defendant asserts that there was reversible error because this Court did not have a special hearing, presumably one akin to the hearing we have under 18 U.S.C. § 4244. Should this Court determine at this time that defendant did not properly waive his right to assistance of counsel, then of course he is entitled to a new trial. But, it is quite another matter to ask for a new trial on the ground that there was no formal hearing and determination of record at the time defendant did waive his right. Defendant relies heavily on the passing statement in Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L. Ed. 1461, that “while an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” The Court of Appeals for the Ninth Circuit answered defendant’s argument in the ease of Widmer v. Johnston, 9 Cir., 1943, 136 F.2d 416, 418, certiorari denied 1943, 320 U.S. 780, 64 S.Ct. 92, 88 L.Ed. 468. There the Court noted that its attention had been directed to the passage quoted from Johnson v. Zerbst. It went on to hold, however: “While it would doubtless be a better practice to record the fact of a determination of proper waiver of counsel, still the failure to do so does not negative that such determination was made. The recordation would go merely to the matter of proof.” 136 F.2d at page 418. We might agree with defendant had there been any indication at the time of his waiver that defendant was not possessed of his complete mental faculties. Under those circumstances, it may have been appropriate to have had a psychiatric hearing. But, in Hall v. Johnston, 9 Cir., 1939, 103 F.2d 900, it was pointed out that at the time of the defendant’s plea of guilty the trial judge knew that defendant was “insane,” 103 F.2d at page 900; yet, the Court of Appeals did not order a reversal of the conviction, but merely remanded for a present hearing as to whether defendant understandingly waived his right to counsel. 103 F.2d at page 901. It is all too easy to say at this stage of the proceedings what would have been the most wise course of action to follow at the time defendant waived his right. Even in light of the passage from Johnson v. Zerbst, however, the Courts of Appeals time and again have affirmed convictions or denied writs of habeas corpus where no more,, and often less, was done by the trial court than was done here. See, e. g., Williams v. Swope, 9 Cir., 1951, 186 F.2d 897, 898-900; O’Keith v. Johnston, 9 Cir., 1942, 129 F.2d 889, 891, cer-tiorari denied 1942, 317 U.S. 680, 63 S.Ct. 161, 87 L.Ed. 546; Binder v. United States, 6 Cir., 1956, 231 F.2d 314, 314-315, certiorari denied 1956, 351 U.S. 969, 76 S.Ct. 1036, 100 L.Ed. 1488; Smith v. United States, 5 Cir., 1954, 216 F.2d 724, 726; Ray v. United States, 5 Cir., 1951, 192 F.2d 658, 659; Woolard v. United States, 5 Cir., 1949, 178 F.2d 84, 88; Os-senfort v. Pulaski, 5 Cir., 1948, 171 F.2d 246, 247; Wood v. Howard, 7 Cir., 1946, 157 F.2d 807, 808, certiorari denied 1947, 331 U.S. 814, 67 S.Ct. 1198, 91 L.Ed. 1832. In any event, although we desire to go on record as holding that, at least where there is no prima facie indication that a defendant is mentally incompetent, there is no need to have a special hearing of record, psychiatric or otherwise, to determine whether a defendant competently has waived his right to counsel, we further hold that the failure to have such a hearing in this case is not ground for a new trial, since, as we shall show, defendant did competently waive his right to counsel. In other words, even .assuming arguendo that such special hearing was necessary, the lack of it did not prejudice this defendant, and, as we pointed out earlier, new trials will be granted a defendant only when there is a clear showing that the alleged error resulted in prejudice to him. III. Defendant Waived His Right to Counsel in an Intelligent, Understanding and Competent Manner. Our purpose now is to reaffirm the previous determination of this Court that defendant did competently, intelligently and understandingly waive his right to counsel. Although a formal determination of record was not made at the time defendant waived his right, the Court had an adequate opportunity to discuss the matter with defendant, both on and off the record, and did determine for itself that defendant’s choice to appear pro se was made with his “eyes open.” See Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268. To begin with, this defendant cannot say here, as did the defendant in the famous case of Johnson v. Zerbst, supra, 304 U.S. at page 467, 58 S.Ct. at page 1024, that he was unaware of his right to be represented by counsel. The Court advised him of that right. Tr., vol. I, p. 4, lines 17-20. The- Court then determined that defendant was financially able to retain counsel if he desired to do so. Tr., vol. I, p. 4, lines 21-25, p. 5, lines 1-8, p. 31, lines 10-18. Since defendant was able to retain counsel, it was not necessary to appoint counsel. See Rule 44, Federal Rules of Criminal Procedure (“If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel oris able to obtain counsel.”); United States v. Arlen, 2 Cir., 1958, 252 F.2d 491, 495 (“counsel need not be assigned if a defendant is able to obtain his own counsel * * Nonetheless, defendant knew of and refused the Court’s offer to appoint counsel for him. Tr., vol. I, p. 5, lines 13-15. It is clear, then, that defendant was well aware of his constitutional and statutory rights. The next fundamental question is whether defendant knew what he was getting into. Did he appreciate that any law suit is complicated, at least to a layman, and that a criminal charge is a matter not to be dealt with lightly? The record shows that he did. The Court pointed out that no matter how skilled the layman is in the fundamental rules of law, no lay person is very familiar with procedural aspects, and that that fact makes it difficult both for the defendant appearing pro se and for the Court. Tr., vol. I, p. 7, lines 5-12. The Court asked defendant whether he thought the trial of the charges against him was child’s play, to which he replied that he had no such thought. Tr., vol. I, p. 17, lines 19-25, p. 18, lines 1-2. The Court impressed upon defendant that he was in an important and grave sitúation, and the defendant, with a seriousness which the cold record does not show, responded that he was aware of those facts. Tr., vol. I, p. 18, lines 3-7. The defendant was well aware of the charges against him. Upon arraignment, the indictment was read to him, and a copy was handed to him. Tr., vol. I, p. 6, lines 6-14. As a matter of fact, as we shall discuss infra, the defendant was sufficiently aware of what was going on that he demanded a bill of particulars. The Court advised him of the possible penalties should he be adjudged guilty. Tr., vol. I, p. 7, lines 17-23. This defendant knew of the ultimate consequences should his prosecutors prevail. What this Court has so far related is important in that it shows that defendant was well aware of what he was doing. Significant, however, is the manner in which defendant made his statements and responded to the queries of the Court. Everything that he did or said was done in a calm, deliberate and convincing manner. When he stated that he desired to represent himself, there was no hesitation in his voice. When he stated, “I feel I am competent to defend myself,” Tr., vol. I, p. 14, line 20, he did-so with that convincingness that comes from the totally rational man who speaks with a soft voice. At all times relevant to the matter now under inquiry he was alert, courteous, and determined. Who will deny that “the demeanor, the facial expression, and the responses made by the accused soon may convincingly disclose to an experienced trial judge whether the accused is intelligently and understanding^ waiving his constitutional rights.”? Davis v. United States, D.C. D.Minn.1954, 123 F.Supp. 407, 412, affirmed 8 Cir., 1955, 226 F.2d 834, cer-tiorari denied 1956, 351 U.S. 912, 76 S. Ct. 702, 100 L.Ed. 1446. Although it is not totally uncommon for a defendant to waive counsel, this Court was concerned about defendant’s determination to do so, mainly because of the-type of suit here involved. Defendant, whether represented or not, would not have an easy time of it, since from past experience the Court knew that the government would be well prepared, as, indeed, it was. Between the time of arraignment on June 16, 1960 and the time the trial began, on October 4, 1960, this Court had occasion to meet with defendant in camera. There were three to five such conferences, often as not dealing with defendant’s desire to obtain a bill of particulars. On at least two of these occasions, there may have been more, the Court frankly discussed the matter of waiver with defendant, told him what he was getting into, and virtually pleaded with him to reconsider his determination to appear pro se. The defendant was adamant, but not in a belligerent manner. It was simply a case where an undeniably intelligent businessman had made an assessment of where he stood and what he wanted to do about it. He was stubborn about his decision, but gave absolutely no indication that he did not know exactly what he was doing. Which leads us to another matter. It needs no citation to the transcript or otherwise for this Court to note that defendant is an eminently successful financier. He has amassed a considerable fortune, and in the course of doing so doubtless had to make decisions on which could turn the fate of hundreds of thousands, if not millions, of dollars, a subject which even he asserts is dear to his heart. See defendant’s memorandum in support of this motion, p. 26, lines 25-26, where Dr. Raymond Brown states that “he has quite literally placed money above his life in his perspective of values.”' This, then, was not one of those waiver-of-counsel cases where the court found a 17 year old defendant,' who had never' gone beyond the third grade, who had; had virtually no contact with the outside world, and who was not accustomed to making decisions which were extremely important to him. In short,.this Court respected the man for what he was; there was no question in the Court’s mind but that however poor his judgment may have been, the defendant’s waiver of counsel was done in an intelligent, understanding and competent manner. Once he had waived counsel, the Court made it plain to defendant that “it can’t be an attorney for you; it can’t tell you what to do, how to do it, or when to do it.” Tr., vol.' I, p. 18, lines 11-12. The ■Court also impressed upon him that he bad no more standing because he was defending himself than would any other ■person. Tr., vol. I, p. 18, lines 21-23. All of this he gave every indication of having understood. Despite this clarification of the ground rules, so to speak, the defendant never waivered from his «determination to appear pro se. So much, then, for the factual background upon which this Court based its conclusion that there was a proper waiver of counsel, a conclusion which, though not expressed as a matter of record, was one which was uppermost in the Court’s mind when it decided to allow defendant to defend himself. But, we are now told by psychiatrists ■of defendant’s own choosing that he was ■incompetent to waive his right. On the ■other hand, one psychiatrist chosen by •the government states that he cannot reach a conclusion, and the other unequivocally states that defendant did ■competently and intelligently waive his right. Nothing would be gained by adding up the “votes,” as it were, and then reaching a conclusion one way or the other. We deem it our function to compare these reports, and then to evaluate them in light of the findings which this Court has made and will make on the basis of its own observations. Drs. Raymond Brown and Toller, both of whom were retained by defendant, say, in essence, that defendant is obsessed with money, that he has a compulsion to make money and that money assumed .more than natural proportions to him. When they point out that he has certain eccentric characteristics, both rely on incidents which show that defendant is parsimonious. Dr. Raymond Brown mentions ambulatory schizophrenia, while Dr. Toller alludes to the possibility. Dr. Raymond Brown concludes that defendant has a distorted sense of values, which conclusion obviously relates to defendant’s great desire for money. Dr. Toller says that defendant gives as a reason for waiver of counsel the fact that he would have to earn too much money to pay for fees. In short, both men seem to agree that somehow or other the decision to waive counsel was motivated by an inner desire’ to save money. Dr. Raymond Brown concludes that the decision to appear pro se was motivated by irrational factors, which simply means that it is that doctor’s opinion that the decision to maintain his fortune by doing without counsel is irrational. On the other hand, Dr. Gericke, who was retained by the government, disputes Dr. Raymond Brown’s judgment that the decision was irrational. Said Dr. Gericke: “His thinking and behavior appear reasonable, and he suffered no disorder of thinking which would render his actions irrational or unwarranted. He acted in the exercise of his best judgment.” In an apparent attempt to pinpoint a specific mental disorder which allegedly caused defendant to sacrifice representation by counsel merely because he could save some money, Dr. Raymond Brown speaks of “extreme obsessive compulsive traits” and Dr. Toller states that the defendant “has a psycho-neurosis, compulsive type.” Dr. Gericke, who had before him the Brown-Toller reports at the time he made his findings, concluded, however: “There is no evidence of impulsiveness nor emotional instability.” Quite aside from the obvious fact that the experts do not agree, this Court is of the opinion that to say that defendant has a compulsive desire to accumulate wealth is of no help in this case. Many people have compulsive desires to make money, and often as not wind up in a hospital because of various illnesses induced by overwork. But, although these men, many of whom are members of our profession, may be said to exercise poor judgment, few could doubt that their actions are competent, intelligent, or understanding in the legal sense. Or, as Dr. Richard Brown, who was retained by the government, has succinctly put it: “Some of the possibilities would be that he simply wanted to save money. This would represent poor judgment but if the man were psychotic and felt, for example, that he had to have money to keep away the devil, his judgment would be based on a delusion.” In this connection, both Drs. Toller and Gericke agree that defendant has not been suffering from hallucinations, and none of the experts has concluded that defendant is psychotic. Dr. Toller’s view that defendant is suffering from a psycho-neurosis unquestionably cannot be taken as a conclusion that he is psychotic, for the term “psychoneurosis” is commonly used merely as a synonym for “neurosis.” Chapman v. Finlayson Lease, 1940, 56 Ariz. 224, 107 P.2d 196, 198; O’Kelly & Muckier, Introduction to Psychopathology 202 (2d ed., 1958) (“The term psychoneurosis is used interchangeably at present with the shorter term neurosis.”). We would be concerned if there had been a finding that defendant was suffering from a psychosis but there is a vast difference between that type of mental illness and a neurosis. To begin with, we are told that a neurosis is a “mild functional personality disorder in which there is no gross personality disorganization and in which the patient does not ordinarily require hospitalization.” Coleman, Abnormal Psychology and Modern Life 632 (1950). More precisely, the “psychoneuroses are mild or minor mental reactions which represent attempts to find satisfaction in life situations rendered unsatisfactory by faulty attitudes or by faulty emotional developments.” Strecker, Ebaugh & Ewalt, Practical Clinical Psychiatry 358 (6th ed., 1947). “The psychoses, on the other hand, are usually disordered reactions of such intensity or such inclusiveness with respect to ali parts of the personality that any sort of compromise with normal social requirements is impossible.” O’Kelly, op. cit. supra, at 202-03. Unlike the neurotic, “the behavior in the psychotics is usually unpredictable and very frequently antisocial to the extent that it makes him dangerous to himself or to the persons around him. The psychotic does not appreciate the rights of other persons and thus has difficulty in conforming to the demands and mores of the group in which he lives. In a few words, the psycho-neurotic patient generally is in much closer contact with his environment than the psychotic and, as it were, far fewer phases of his personality are in obvious disharmony with the responsibilities and expectations of everyday living.” Strecker, op. cit. supra, at 358-59. See also, Coleman, op. cit. supra, at 233. Even assuming for purposes of argument that Dr. Toller was correct in his diagnosis of neurosis, a diagnosis which, we hasten to point out, is not concurred in by the other psychiatrists, how much weight should we give to it, bearing in mind that we have cited authorities which classify a neurosis as being only a mild or minor mental reaction? Should we be more concerned here than was the Court of Appeals for the Fifth Circuit, when it found that there was a competent waiver, even though one of two psychiatrists there had testified that that defendant was suffering from manic depression insanity and could not even stand trial? Kaplan v. United States, 5 Cir., 1957, 241 F.2d 521, 522, note 3, certiorari denied 1957, 354 U.S. 941, 77 S.Ct. 1406, 1 L.Ed.2d 1539. Should we find no valid waiver when the Court of Appeals for the Second Circuit found a valid one even though two psychiatrists had testified that the defendant there “was a psychopathic personality and in need of treatment * *.”? United States ex rel. Rhyce v. Cummings, 2 Cir., 1956, 233 F. 2d 190, 194, certiorari denied 1956, 352 U.S. 854, 77 S.Ct. 78, 1 L.Ed.2d 64. This Court desires again to point out that defendant is not a man inexperienced in making decisions as to how to spend his money. Just because he used what may have been an inordinate amount of care on the occasion here in question, why should we say now that his actions are any less competent, intelligent and understanding than the man who refuses to take out that extra, but needed, fire insurance on his home, or the man who refuses to retain counsel because he believes he is guilty and that nobody can help him? Let us pass, for the moment, to the idea expressed by Drs. Raymond Brown and Gericke that one reason behind defendant’s waiver may have been his innate belief that he was innocent, that truth would ultimately prevail and that the jury would therefore acquit. From these premises, we are to gather, the defendant assumed that he did not need counsel, for representation would be an idle act. As a legal proposition, we cannot accept this line of reasoning. This is because no matter what defendant may have told the psychiatrists about his being innocent, this Court is bound by the finding of the jury that he willfully evaded income taxes. A man who willfully does acts which constitute a crime, a man who, we have found, understood the nature of the charges against him, is not a man who can honestly say that he knows he is innocent. Whatever may have been defendant’s real reasons for waiving counsel, it is quite possible that the psychiatric reports, especially .those submitted by defendant, suffered from the fact that'defendant was less than candid during his examinations. Dr. Richard Brown has stated: “One thing does stand out with this man; he is not revealing all that he knows.” That, incidentally, was a characteristic revealed by defendant during the course of the inquiry by the Probation Officer as the latter was preparing his presentence report. In any event, the assertion that defendant was withholding from his examiners, an assertion which stands uncontradicted, casts grave doubts on the conclusions of Drs. Raymond Brown and Toller that defendant did not validly waive his right to counsel. But, even taking these two reports at face value, something which we would not be required to do even if they went unchallenged, Blodgett v. United States, 8 Cir., 1947, 161 F.2d 47, 56, how can they be squared with the conclusion reached by this Court, at the time of the waiver, that defendant acted in a competent, rational and intelligent manner ? The short of it is that they cannot. Before proceeding further, however, this Court will observe that a careful reading of the numerous cases in this area indicates that the courts, in determining whether there has been a valid waiver, will consider the entire record of the case. Indicative of this approach is the statement appearing at page 464 of the opinion in Johnson v. Zerbst, supra, 304 U.S., at page 1023 of 58 S.Ct.: “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Perhaps it is because of this approach to the problem that the courts in the-Kaplan and Cummings cases, supra, ruled that the waivers did meet the constitutional test, even though psychiatrists had opined to the contrary. In line with the idea that the courts are to consider all relevant circumstances, we cite at least one case where the court took into account the fact that defendant was no stranger to the courts. See Williams v. Swope, 9 Cir., 1951, 186 F.2d 897, 898. Such factor is relevant because it shows that the defendant who has been in court before knows that a trial is a serious proceeding, that there are certain procedures which must be followed and that the managing of a case is within the peculiar competency of a member of the bar. A person who on numerous occasions has been a litigant cannot be said to be ignorant of the functions served by an attorney, and hence, when he waives his right to counsel, we can only assume that he did so with his eyes open, assuming as we do. that the defendant knew he had a right to counsel. It is because of the insight which a person gains from litigating that we deem it irrelevant that his prior court experiences were civil in nature. Although this Court was dimly aware of the fact that the defendant had been engaged in several law suits prior to the one here in question, it did not take into account then, as it does now,, that defendant has had extensive court. experience. This Court takes judicial notice of the fact that defendant represented himself in the case of Securities & Exchange Commission v. Redfield, United States District Court for the District of Massachusetts, Docket No. 55-68W (1955). For what it is worth, we note from a newspaper clipping dated February 16, 1955 that Judge Wyzanski inquired of Mr. Redfield whether he had funds sufficient to employ an attorney. Mr. Redfield responded in the affirmative, added that he did not need a lawyer, and the record shows that he continued to represent himself right up to the very time judgment was entered against him. We also take judicial notice of the fact that defendant represented himself in the case of Guild v. Redfield, Second Judicial District Court of the State of Nevada, Docket No. 185,955 (1960). With respect to that case, we further note the affidavit of one of the plaintiffs, a member of the bar of this Court, that defendant there “appeared to be fully competent to represent himself.” Finally, we take judicial notice of the fact that Mr. Redfield appeared, either as plaintiff or defendant, in some sixteen additional actions, all of which were before the Second Judicial District Court of the State of Nevada, unless otherwise noted. We cite all of this not to indicate that defendant is not entitled to the full measure of his constitutional rights, but only to show that he was no stranger to courts and that such fact points to a conclusion that he knew exactly what he was doing when he waived his right to counsel. In conclusion, we note that it is settled law that the defendant “has the burden of showing, by a preponderance of the evidence, that he did not have counsel and did not competently and intelligently waive his constitutional right to the assistance of counsel.” Moore v. Michigan, 1957, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167; Watts v. United States, 9 Cir., 1959, 273 F.2d 10, 11-12, certiorari denied 1960, 362 U.S. 982, 80 S.Ct. 1069, 4 L.Ed.2d 1017; O’Keith v. Johnston, 9 Cir., 1942, 129 F.2d 889, 890, certiorari denied 1942, 317 U.S. 680, 63 S.Ct. 161, 87 L.Ed. 546; c.f., Blood v. Hudspeth, 10 Cir., 1940, 113 F.2d 470, 471 (ordinarily it will be presumed that the waiver was valid); Kelly v. Aderhold, 10 Cir., 1940, 112 F.2d 118, 119 (same as Blood v. Hudspeth, supra).' Upon a consideration of all the evidence — the psychiatric reports, the statements and conduct of defendant, his past experiences both in and out of court, and his demeanor — this Court finds that defendant has not met the burden of proof which the above-cited cases place upon him. Accordingly, we find as fact, Michener v. Johnston, 9 Cir., 1944, 141 F.2d 171, 175, that defendant waived his right to counsel in a competent,-intelligent and understanding manner. IV. Defendant was not Denied a Fair and Impartial Trial, nor were his Rights Under the Sixth Amendment Violated by Virtue of the Nature of His Defense. The next major point is defendant’s contention that he “was denied his constitutional right to a fair and impartial trial because defendant, acting as his own Counsel, was not capable of conducting his defense and the record of the trial in this cause establishes that defendant was so ignorant of law and procedure and his defense was so inadequate and incompetent that he has been deprived of his liberty in violation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States.” Defendant’s Memorandum of Points and Authorities, p. 7. Of course, defendant does not here allege that defendant was incompetent to stand trial. That much was settled at the hearing on March 3, 1961. What defendant is saying is that he was not capable of doing for himself that which we might reasonably expect of an attorney. Before going further, we pause to note that defendant’s counsel show a lack of understanding of the law applicable to this case in that it is elementary that the Fourteenth Amendment has no bearing whatever on criminal prosecutions in the federal courts. We have already determined, it will be remembered, that defendant validly waived his right to counsel and that we could not force counsel upon him under those circumstances. Now, however, defendant tells us that his Sixth Amendment rights were impaired because he allegedly did a poor job of representing himself. This, in effect, is a contention that competency to waive counsel can only exist if the defendant is qualified to try a law suit. The case law does not even suggest such a possibility. Indeed, the Supreme Court has held that when a lawyer-defendant waives counsel, the fact that he has had professional experience may be a factor in determining whether he actually waived his right to the assistance of counsel, “but it is by no means conclusive.” Glasser v. United States, 1942, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680. By negative inference, therefore, the fact that one is not an attorney should not be of any consuming concern. What, then, can be expected of this Court? Were we supposed to give defendant a course in the art of trying a law suit? To state the question is to state the answer. Were we supposed to coach him every step of the way, tell him what to ask of witnesses — in short, act as counsel for him? To do so would clearly have transcended the proper functions of the court. The Court of Appeals for the Ninth Circuit put it well when it stated: “When appellant chose to proceed without counsel, he chose a course of action fraught with the danger that he would commit legal blunders. But having made that choice he did not thereby acquire the right to have the court act as his counsel whenever he seemed to be blundering. It ccm-not be said that the court denied him representation of counsel, or denied him a fair trial, because the judge refrained from intermed-dling.” Burstein v. United States, 9 Cir., 1949, 178 F.2d 665, 670 (emphasis added). Or, as the Court of Appeals for the Fifth Circuit has put it: “Once it is found, however, that such an accused has properly waived his right to counsel, the effects flowing from that decision must be accepted by him, together with the benefits which he presumably sought to obtain therefrom.” Smith v. United States, 5 Cir., 1954, 216 F.2d 724, 727. See also, Michener v. United States, 8 Cir., 1950, 181 F.2d 911, 918 (“If an accused were represented by counsel, it most obviously is not the duty nor the privilege of the judge to suggest or explain possible defenses in behalf of the accused. And upon finding a competent, intelligent and intentional waiver of counsel, it is not then any the more the duty of the trial judge to advise an accused respecting possible defenses.”). Notwithstanding what we have just said, however, the Court did, on numerous occasions, give advice to defendant or otherwise help him to defend himself. Moreover, as our Circuit commented in another case, “the manner in which he handled himself, show[s] that although his ideas of a defense were extraordinarily unorthodox, he was alert and intelligent.” Burstein v. United States, supra, 178 F.2d at page 670. The ease cited by defendant, Lunce v. Overlade, 7 Cir., 1957, 244 F.2d 108, 74 A.L.R.2d 1384, is inapposite because that case was only concerned with the inadequate representation of a defendant by somebody, an attorney, other than .himself. In that case, Lunce could find fault with an attorney; here, defendant can only find fault with himself. In any event, the Lunce ease states a minority proposition, as is evidenced by a reading of the following cases: Ex parte Haumesch, 9 Cir., 1936, 82 F.2d 558, 558-559 (the defendant, “having been represented at the trial of his case * * * by an attorney of his own selection, cannot complain that he has been deprived of his constitutional right to be represented by counsel because the attorney so selected was, as he claims, unskilled or incompetent in the handling of the case.”); Gambill v. United States, 6 Cir., 1960, 276 F.2d 180, 181 (“A defendant cannot seemingly acquiesce in his attorney’s defense and after the trial has resulted adversely to him obtain a new trial because of the incompetency of his attorney.”); United States v. Hack, 7 Cir., 1953, 205 F.2d 723, 727, certiorari denied 1953, 346 U.S. 875, 74 S.Ct. 127, 98 L.Ed. 383; United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, 426, certiorari denied sub. nom. Maroney v. United States ex rel. Darcy, 1953, 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375; Burton v. United States, 1945, 80 U.S.App.D.C. 208, 151 F.2d 17, 18-19, certiorari denied 1945, 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479; Tompsett v. State of Ohio, 6 Cir., 1944, 146 F.2d 95, 98, certiorari denied 1944, 324 U.S. 869, 65 S.Ct. 916, 89 L.Ed. 1424; United States v. Malfetti, D.C.D.. N.J.1954, 125 F.Supp. 27, 29. Defendant has hit upon quite a-, scheme: waive counsel, take your chances with the jury, then if the jury disappoints-you, merely point out that you are a poor-substitute for a lawyer, thereby gaining-another trial with the concomitant chance-that you will find the one juror who will' keep you from paying the penalty which the law exacts. If such a maneuver were-allowed “there would seldom, if ever, be a final termination of criminal charges.”' See United States v. Hack, supra, 205-F.2d at page 727. Some court other than this one will have to sanction such a subterfuge. V. The Defendant was not Denied a. Fair Trial by Virtue of Comments of the Court or Government Counsel. A. Allegedly prejudicial comments of the Court. The defendant has gone to great lengths to cite those portions of the transcript which, he asserts, show that the Court, by its comments, prejudiced the-defendant in the eyes of the jury. Before-considering the specific items in question, we would only note that there never was,, at any time, an intent on the part of the-Court to do anything which would be calculated to harm the defendant. As-this opinion has indicated already, and: as we shall demonstrate shortly, the Court: bent over backwards to see to it that the defendant received a fair trial. First of all, a reading of the transcript will show that many of the allegedly improper comments of the Court were made in an attempt to remind the defendant that while examining a witness or arguing to the jury, he was acting in the capacity of an attorney. Time and time again, however, the defendant insisted on making remarks from the counsel table which, under no stretch of the imagination, could be regarded as being anything other than pure testimony on his part or, alternatively, as blatant arguing with the witness. It was, of course, entirely proper for the Court to caution or to reprimand the defendant lest he continue to lapse from the role of counsel into that of witness. See Shelton v. United States, 5 Cir., 1953, 205 F.2d 806, 810, certiorari dismissed 1953, 346 U.S. 892, 74 S.Ct. 230, 98 L.Ed. 395. The defendant objects that the Court found it necessary to remind the defendant that if he desired to testify that he should take the witness stand. This argument is adequately and appropriately answered by the following observation by the Court of Appeals for the Fifth Circuit: “The trial court would not conceivably have tolerated the self-serving statements made by the accused and his flat denials of statements made by witnesses, and his irrelevant comments, if made by a lawyer. In fact, the criticism now levelled at the trial court for referring to the right of the accused to testify in his own behalf arose entirely from the court’s patient explanation, repeatedly made to Smith as he purported to cross examine government witnesses, that he could not argue with them or dispute them, as he repeatedly did, but that if he wanted to get his views to the jury he ought to take the witness stand. There is no merit in the contention that the court prejudiced appellant by any of such statements or by all of them taken together.” Smith v. United States, 5 Cir., 1956, 234 F.2d 385, 388-389. Secondly, despite the great number of cautions by the Court, the defendant often was not satisfied with merely arguing with the witnesses. He saw fit on several occasions to comment on the credibility of the witnesses during the course of his examination, a tactic which no court need tolerate. Upon the occasions cited in paragraphs A and C in footnote number 11, the Court found it necessary to threaten to hold defendant in contempt. By the time the trial had reached those respective stages, the defendant had repeatedly violated the cautions, admonitions and directions of the Court, not only with respect to the making of disparaging remarks about the testimony of various witnesses, but also by testifying and arguing under the guise of' cross-examination and by asking improper questions. The defendant is an intelligent man, and so it occurred to the Court then, as it does now, that defendant’s conduct, in the face of the scores of warnings given by the Court, may well have been a deliberate attempt on the part of defendant either to make a play for the undeserved sympathy of the jury, or to antagonize the Court to the point where it would be pushed into making unjudicious comments. The Court was determined to relieve defendant of his misconceptions; there would be respect for the Court. Hence, in the only language that the Court felt that the defendant would understand, the Court threatened to hold defendant in contempt and advised him that had he been an attorney he already would have been so adjudged and sentenced. We shall have occasion later to comment generally upon the alleged prejudice of the Court, but, in the meantime, we are of the firm opinion that, under the circumstances, it was entirely proper for the Court to speak as it did. See Abbott v. United States, 5 Cir., 1956, 239 F.2d 310, 315 (even imposing a fine in the presence of the jury is warranted); People v. Knocke, 1928, 94 Cal.App. 55, 270 P. 468, 471 (Because of the repetition of the offense, the appellate court sanctioned the following remark of the trial court to the defendant: “If there is any more of that kind of talk, you will be in jail over Saturday and Sunday for contempt of court.”). The third category into which the assignments of alleged error fall relate to those incidents when the defendant asked a question in an improper manner — improper either because it asked for an opinion the witness was wholly unqualified to give, or because the question was confusing. It needs no citation of authority for this Court to observe that such questions are not permitted. Accordingly, it was proper for the Court to caution the defendant. The fourth problem deals with that portion of defendant’s argument which related to the alleged burglary of his home. It began when, after “testifying” in his argument that he had made more money in 1932 than at any other time in his life, he stated: “During the noon hour of February 29, 1952, my home was burglarized.” Tr., vol. VIII, p. 1973, lines 18-19. Immediately government counsel objected: “If the Court please, I do not believe that the remarks of counsel [quoted above] are in evidence. I feel that he is going far afield from drawing any inferences from the evidence, but, rather, at this time is testifying.” Tr., vol. VIII, p. 1973, lines 20-23. As we were advised by defendant’s February 21, 1961 memorandum in support of the instant motion, there had been two references to the burglary by witnesses. Under the circumstances, however, it was quite understandable that government counsel, the Court and, we assume, the defendant had overlooked them In all of the colloquy between the Court and the defendant following the government’s objection, never once did the defendant, in precise and intelligible terms, call the Court’s attention to the fact that there had been references in the testimony upon which to base his remarks. His failure to correct the Court, so that it might at that time have taken preventative steps, was, we feel, a waiver of the alleged error, if any. See MacInnis v. United States, 9 Cir., 1951, 191 F.2d 157, 159, certiorari denied 1952, 342 U.S. 953, 72 S.Ct. 628, 96 L.Ed. 708; United States v. Vasen, 7 Cir., 1955, 222 F.2d 3, 6, certiorari denied 1955, 350 U. S. 834, 76 S.Ct. 70, 100 L.Ed. 744; Smith v. United States, 5 Cir., 1954, 216 F.2d 724, 727. In any event, we feel that there was no error in the first instance. This is because, even assuming that at the time of the incident the Court had been aware of the prior testimony, the defendant could not, under the circumstances, properly have stated more in his argument than he did. The defendant did observe, during his argument, that his home had been burglarized, Tr., vol. VIII, p. 1973, lines 18-19; p. 2001, lines 23-24, and that “my records were lost to me.” Tr., vol. VIII, p. 2001, lines 23-24, p. 2002, line 5. Bearing in mind the exact nature of the hearsay comments of the two witnesses in question, one familiar with this trial and the issues and evidence therein would have to conclude that what the defendant likely would desire to argue would be that the jury should draw the inference that the facts of burglary and the stealing of certain records accounted for his misstatement of the cost basis of the securities which he sold and which were the subject of the indictment. But in no event could defendant be allowed to argue in that manner. This is because if, in fact there had been a burglary, it would not be material to the case, unless there was proof that the burglary resulted in loss of records which pertáined to the stock transactions under inquiry. 1) There was no evidence whatever as to whether all his records, if any, were stolen, or part of them only. 2) There was absolutely no evidence that the records which allegedly were stolen related to the particular stock transactions in question. 3) The defendant had failed to show by testimony or otherwise that he had ever kept a record concerning the particular stock transactions which were the subject of the indictment. 4) The defendant had never introduced evidence to show that he had ever made a good-faith attempt to learn of the price at which he had purchased the securities in question. Because of the glaring lack of vital evidence, the jury could never be allowed to infer that the burglary and the stealing of certain records, if any, accounted for his mis-statement of the cost basis. Accordingly, the defendant would never be permitted, under the circumstances of the record, to so argue. Fifthly, the defendant cites us to miscellaneous colloquies between the Court and defendant. As the notation in the margin shows, these comments were harmless, when read in context, and in any event, were nothing other than an attempt by the Court to induce the defendant to observe proper courtroom decorum. Finally, the defendant asserts the related points that, on the one hand, the Court “continuously interrupted and belittled” the defendant “even though no objection had been interposed by two able and experienced Trial Counsel representing the plaintiff,” and, on the other hand, that counsel for the government “were accorded every courtesy and consideration by the Court.” In the first place, as we have suggested already and as we shall go on to discuss presently, the Court did not caution or reprimand the defendant except on those occasions when he was fully deserving of such. Secondly, there is nothing at all to show that the Court “belittled” the defendant. Thirdly, although the record is incapable of showing it, the occasions were many when the government counsel were on their feet, ready to make an objection which was never stated. When the misconduct of defendant was so obvious, there would have been little reason for the Court to delay its ruling until the government fully stated its position. In any event, the defendant’s conduct, carried on as it was in the face of repeated explanations, cautions and reprimands of the Court, constituted nothing other than a challenge to the authority of the Court itself. Under such circumstances, we see no reason at all why the Court had to wait for objection by the government. Fourthly, as the notation in the margin indicates, there were innumerable times when the Court allowed defendant to proceed, without reprimand, although he was violating rules of evidence, procedure, or the Court. Nor, is there any merit to the allegation that the Court showed favoritism to the government counsel. The fact is, of course, that they presented their case in a generally unreproachable fashion. However, as the notation in the margin shows, there were many government-fostered objections which were overruled, and when government counsel made an objectionable remark in his argument, the Court was quick to correct the record and to admonish the jury carefully. Before stating a few of the general principles of law which we believe are appropriate to this general problem, we will note initially that the fact that the attack is leveled on the Court, however much the Court would prefer not to pass upon the issues, does not relieve the Court of the duty to do so; otherwise, the granting of the motion for new trial under such circumstances would be automatic and remove discretion from the Court. As we pointed out at the beginning of this opinion, such is not the rule. Although defendant has labored mightily to point out the alleged indiscretions of the Court, we think it important to observe that the “questions and comments of the court must be read in their context and viewed with a perspective of the whole proceedings.” Ochoa v. United States, 9 Cir., 1948, 167 F.2d 341, 344; Todorow v. United States, 9 Cir., 1949, 173 F.2d 439, 448, certiorari denied 1949, 337 U.S. 925, 69 S.Ct. 1169, 93 L.Ed. 1733; United States v. Thayer, 7 Cir., 1954, 209 F.2d 534, 536 (“Words of the trial judge are not to be isolated for assessment. [citing the Ochoa case, supra] - Nor are specimens of his comments to be-wrested out of context and measured against those intriguing generalities cited to us from various cases by defendant. While there is no single formula for gauging judicial discretion such contentions as raised by this defendant must be resolved in an environment supplied by the full record.”); United States v. Warren, 2 Cir., 1941, 120 F.2d 211, 212 (where Judge Learned Hand observed that “separate passages cut from their context and from the trial as a whole, often have an apparent importance which in fact they do not deserve”); United States v. Lee, 7 Cir., 1939, 107 F.2d 522, 529-530, cer-tiorari denied 1939, 309 U.S. 659, 60 S.Ct. 513, 84 L.Ed. 1008; Goldstein v. United States, 8 Cir., 1933, 63 F.2d 609, 614; Hargrove v. United States, 8 Cir., 1928, 25 F.2d 258, 262. What, then, does the record show? Almost from the beginning, and certainly right up to the end, the defendant was, as we have already pointed out, engaged in a pattern of conduct that can only be described as contemptible. This, after all, was an intelligent defendant who had made a veritable fortune by use of his mind and cunning. It is inconceivable that he did not understand the repeated explanations, cautions and reprimands of the Court. Yet, time after time after time, he proceeded to ignore the Court and to display an utter contempt for it. Nothing better illustrates defendant’s approach than his demeanor during that part of the argument concerning the alleged burglary of his home. It was not only the things the defendant did or said; it was also the manner in which he did them. One minute he would listen to the Court, and then he would arrogantly do exactly that which he was told not to do. One minute he would grin either to the jury or to the Court in a supercilious manner, and the next he would engage in biting sarcasm. The printed page does not show this; but, nobody at the trial will deny that that is what the Court faced. The patience of the Court was sorely tried. It did its level best to restrain itself and, at the same time, preserve a certain semblance of courtroom decorum. If, upon occasion, the Court did not “choose [its] diction with the nicety of a Field or Marshall," People v. Knocke, 1928, 94 Cal.App. 55, 270 P. 468, 471, we still “must not overlook the fact that the human element cannot be entirely eliminated from the trial of lawsuits.” Goldstein v. United States, supra, 63 F. 2d at page 613. We doubt that but very few judges have such thick hides that they can relegate themselves to the status of automatons. Nor should they. But the defendant would now have us isolate the several reprimands given by the Court and then find that he was prejudiced thereby. This we refuse to do. “Merely because a statement is made or question asked by court or counsel in the heat of a spirited trial which subsequently in the cool ivory tower of appellate court chambers seems inappropriate, does not make the stating nor the asking prejudicial error.” Bush v. United States, 9 Cir., 1959, 267 F.2d 483, 488. At least the case law is clear: in determining whether the comments of the Court were prejudicial, we may take into account the fact that it was the defendant who provoked them. Butler v. United States, 4 Cir., 1951, 191 F.2d 433, 436 (“Where counsel persists in obnoxious actions, the court must be free to warn them of any such improprieties.”); United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, 225-226, affirmed 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (the leading case on the subject, wherein Learned Hand, J., noted: “The record discloses a judge, sorely tried for many months of turmoil, constantly provoked by useless bickering, exposed to offensive slights and insults, harried with interminable repetition, who, if at times he did not conduct himself with the imperturbability of a fthadamanthus, showed considerably greater self-control and forbearance than it is given to most judges to possess.”); United States v. Liss, 2 Cir., 1943, 137 F.2d 995, 999, cer-tiorari denied 1943, 320 U.S. 773, 64 S. Ct. 78, 88 L.Ed. 462; Moore v. United States, 5 Cir., 1942, 132 F.2d 47, 57, cer-tiorari denied 1942, 318 U.S. 784, 63 S. Ct. 854, 87 L.Ed. 1151; United States v. Lee, 7 Cir., 1939, 107 F.2d 522, 529-530, certiorari denied 1939, 309 U.S. 659, 60 S.Ct. 513, 84 L.Ed. 1008; Hargrove v. United States, 8 Cir., 1928, 25 F.2d 258, 262; Magen v. United States, 2 Cir., 1928, 24 F.2d 325, 329, certiorari denied 1928, 277 U.S. 595, 48 S.Ct. 530, 72 L.Ed. 1005. Furthermore, as evidence of the fact that the Court’s comments did not prejudice the defendant, we would note that he was not “disabled in any way from doing his duty. * * * He made no claim to be disconcerted. He continued to conduct the trial with his accustomed vigor and skill.” Steinberg v. United States, 5 Cir., 1947, 162 F.2d 120, 123-124, certiorari denied 1947, 332 U.S. 808, 68 S.Ct. 108, 92 L.Ed. 386. In addition, it will be noted that there is no evidence whatever that the Court “expressed even indirectly any opinion as to the guilt of the accused.” United States v. Liss, supra, 137 F.2d at page 999. Of great significance, too, is the fact that the Court carefully instructed the jury as to the reasons for its admonitions to counsel, and specifically cautioned the jury that it was to draw no inferences therefrom. In light of this instruction, it is impossible to see how the comments of the Court prejudiced the defendant. “We have carefully examined the trial record and as a result we do not believe that these comments between court and defense counsel so misled and prejudiced jurors that they became partisans of the prosecution. We cannot abandon our faith in the capacity and desire of a Federal jury to avoid being mired in irrelevancies, and the record does not reveal that the jurors in the case lost or discarded their innate sense of fair play and were inspired to render a verdict not based entirely on the evidence admitted by the court. “This conclusion is fortified and emphasized by the important fact that the court gave specific instructions to the effect that jurors must wholly disregard court rulings and comments during the trial; that because the court had admonished and reprimanded counsel in connection with the conduct of the trial, the jury should not draw any inferences from the remarks or comments or rulings of the court on those occasions that the court was intending to convey to the jury in any manner whatsoever its view or opinion as to what the verdict should be — that (such) comments of the court were only pur-su ant to the power and duty of the court to supervise the trial and expedite it — that (any) admonitions or reprimands were matters only between the court and the attorneys and that they cannot and must not reflect in any manner upon the guilt or innocence of the defendants. * * * * “These unambiguous and eminently fair instructions reach straight down into the very heart of the problem posed by appellants’ contentions. If any member (or members) of the jury had felt the slightest uncertainty as to the possible attitude of the judge, these blunt admonitions were sufficient to l