Full opinion text
OPINION LATCHUM, District Judge. Defendants were charged with conspiracy to violate the Federal mail fraud statute and with numerous substantive violations of that statute. Following their conviction by a jury on all counts submitted, the defendants moved for a new trial or for judgments of acquittal. Argument was heard on the motions on October 14, 1970. The Indictment On June 7, 1968 the Grand Jury returned a twenty-nine count indictment against Nathan Wolfson, William F. Emmons, Albert Frost, James B. Thompson and Edward Fishbein. Count 1 charged all of the defendants, under 18 U.S.C. § 371, with a conspiracy to violate the mail fraud statute, 18 U.S.C. § 1341. Counts 2 through 29 charged the various defendants with substantive violations of the mail fraud statute. The first count alleged that the defendants conspired together to use the mails to further a scheme to defraud a Toronto, Canada insurance company, Agents General Insurance Company, Ltd. (“Agents General”), and persons whom they induced to purchase insurance in Agents General. Twenty-four elements of the scheme were set forth. Basically the defendants were charged with operating and utilizing several corporations, viz., Excess Insurance Corporation of America (“Excess”), Canadian and British Insurance Managers, Ltd. (“Canadian and British, Ltd.”), Canadian and British Insurance Managers, Inc., Insurance Reporting Service, Inc., and Interstate Reporting, Inc. (ffff 1-5) and with maintaining offices at 2008 and 2008% Pennsylvania Avenue in Wilmington, Delaware, 1 State Street and 34 Battery-march Street in Boston, Massachusetts and in the Brandywine Shopping Center in Glen Mills, Pennsylvania. (ffff 1-5). The defendants were alleged to have induced George Cooper and Agents General in December of 1965 to enter into a contract whereby Canadian and British, Ltd. was appointed the United States representative and agent for Agents General. (ff 6). Also in December of 1965 it was charged that Canadian and British, Ltd. appointed Excess as its sub-agent for selling insurance in the United States, (ff 7). It was alleged that various agents throughout the United States were induced to place insurance with Agents General through Excess and Canadian and British, Ltd. (ff 8), that insurance policy cover notes for Agents General insurance were issued by the defendants and not reported to that company (ff 14), that premiums were not remitted to Agents General (ff 15), that a false bordereau and falsified copies of two cover notes were submitted to Agents General (ffff 17-18) and that claims arising under these cover notes were intentionally not reported to Agents General, (ff 22). In addition, the defendants were charged with writing insurance on Agents General prior to the date Agents General received authorization and approval of the Superintendent of Insurance for the Province of Ontario (ff 13), with writing insurance on Agents General in excess of the company’s authorized liability limit and for unauthorized risks (jf 20), and with writing insurance after April 14, 1966 on Agents General and after being informed that the latter company’s license had been restricted to forbid it from accepting risks outside of Ontario, (ff 21). It was further contended that the scheme involved the failure to settle claims (ff 23) and the collection of deductible amounts due under Agents General policies with no intention of settlement, (ff 24). In addition the defendants were charged with re-insuring policies of National Alliance Insurance Company, Ltd. and Great Fidelity Insurance Company, Ltd. with Agents General without notifying the insurer, (ff 19). Five overt acts were alleged to have been committed in furtherance of the conspiracy and scheme, viz., (1) the holding of a meeting in mid-December of 1965 in Delaware between the defendants and Mr. George Cooper and Mr. R. A. Percy, representatives of Agents General, (2) the holding of a meeting on February 11, 1966 in Toronto, Ontario, Canada between the defendants and Messrs. Cooper and Percy, (3) the maintenance of offices at 2008 and 2008% Pennsylvania Avenue in Wilmington, (4) the maintenance and receipt of mail at Post Office Box 949 at Wilmington, and (5) the maintenance of a checking account in the name of Insurance Reporting Service, Inc. at the First National Bank of Wilmington with defendants Wolfson, Emmons, and Frost having authority to draw checks on the account. The second count of the indictment charged that the defendants in furtherance of their scheme placed a letter in the mails on or about October 3, 1966 addressed to Multi-Line Underwriters of Kansas City, Missouri. Counts 3 through 29 claimed that the defendants received through the mails certain correspondence relating to the alleged scheme. Defendant Fishbein pleaded nolo contendere to Count 2 of the indictment pri- or to trial. The remaining four defendants went on trial November 3, 1969. At the close of the government’s case defendant Frost’s motion of acquittal was granted without government objection (Tr., p. 1182) and defendant Thompson’s motion of acquittal was granted over the government’s objection. (Tr., p. 1312). Motions of acquittal as to defendants Wolfson and Emmons were granted as to counts 11, 12, 16, 17, 18 and 22 of the indictment and denied as to the rest. (Tr., p. 1312). Counts 8, 9 and 13, which related only to defendant Thompson, became irrelevant and were stricken from the indictment. (Tr., pp. 1400-1401). On November 25, 1969 the jury found defendants Wolfson and Emmons guilty on all remaining counts. As previously noted, the case is before the Court on the motions of Wolf-son and Emmons for a new trial, pursuant to Rule 33, F.R.Crim.P., or for judgments of acquittal, pursuant to Rule 29 (c), F.R.Crim.P. Judge Layton of this Court pointed out in United States v. Pepe, 209 F.Supp. 592 (D.Del.1962), aff’d 339 F. 2d 264 (C.A.3, 1964) that the two motions are quite different. The only ground upon which a Rule 29(c) motion can be based is that “the evidence is insufficient to sustain a conviction.” A Rule 33 motion for new trial can be based on any of numerous grounds. Therefore, these two motions will be considered separately. I. MOTIONS FOR ACQUITTAL A. Conspiracy Count. The standard to be applied in passing upon a motion for acquittal after trial under Rule 29(c), F.R.Crim.P., is well settled in this District. “[T]he Court scrutinizes the evidence, including reasonable inferences to be drawn therefrom, from the point of view most favorable to the government and assumes the truth thereof. If there is substantial evidence justifying an inference of guilt, irrespective of the evidence adduced by the defendant, the Court must deny the motion.” United States v. McGonigal, 214 F.Supp. 621, 622 (D.Del.1963); United States v. Barber, 303 F.Supp. 807, 811 (D.Del.1969); United States v. Roy, 213 F.Supp. 479, 480 (D.Del. 1963); United States v. Pepe, supra, 209 F.Supp. at 594. The Court must, therefore, examine the evidence adduced at the trial. Count 1 charged the defendants with conspiracy to commit mail fraud. That offense occurs when two or more persons confederate together to carry out a scheme to defraud by use of the mails. Marrin v. United States, 167 F. 951, 955 (C.A.3, 1909), cert. den. 223 U.S. 719, 32 S.Ct. 523, 56 L.Ed. 629 (1911). In order to violate 18 U.S.C. § 371, a defendant must have knowingly participated in the scheme to defraud. Windsor v. United States, 384 F.2d 535 (C.A.9, 1967). The Court charged the jury that in order to convict the defendants on the conspiracy count the government was required to prove beyond a reasonable doubt (1) that the conspiracy charged in the indictment was wilfully formed and was existing at the time alleged; (2) that the individual defendant in question wilfully became a member of the conspiracy; (3) that one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment, at or about the time and place alleged; and (4) that such overt act or acts were knowingly done in furtherance of some object or purpose of the conspiracy. In passing upon the present motion the Court must determine whether there is “relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt,” that the defendants were guilty as charged . Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 1040, 88 L.Ed. 1331 (1944). The first issue is whether the prosecution proved that a scheme to defraud existed. Twenty-two elements of the scheme were set forth in Count 1 and incorporated in the remaining substantive counts. It is well established that in a mail fraud case the prosecution does not have to prove each and every element of the scheme alleged. Sasser v. United States, 29 F.2d 76, 77-78 (C.A.5, 1928), cert. den. sub nom. Russell v. United States, 279 U.S. 836, 49 S.Ct. 250, 73 L.Ed. 983 (1929); Cowl v. United States, 35 F.2d 794, 798 (C.A. 8, 1929). A brief narrative of the evidence adduced at the trial clearly demonstrates that there was placed before the jury ample proof of a “scheme or artifice to defraud” and of a conspiracy involving defendants Wolfson and Emmons to carry out this scheme. The prosecution’s first witness was George Arthur Cooper, the managing director of Agents General. He testified that he had first met Wolfson in October of 1965 when a Mr. Daniel Lang introduced Wolfson as the representative of a group interested in acquiring part of the treasury stock of Agents General and becoming their agents. (Tr., pp. 85-86). Cooper testified that Wolfson told him that Excess was to be named the corporate purchaser and sales representative. (Tr., pp. 86-87). Later, Canadian and British, Ltd., supposedly a foreign corporation with the same principals, was substituted, for tax reasons. (Tr., p. 91). Cooper testified that he and Ralph A. Percy, the president of Agents General, visited the offices of Excess and Canadian and British, Ltd. at 2008 Pennsylvania Avenue in Wilmington during the middle of December to examine their operations. (Tr., pp. 97-98). The deal was finally consummated on January 14, 1966 at a meeting in Canada between Cooper, Percy, and defendants Wolfson and Emmons. (Tr., p. 100). On that date Percy and Wolf-son went to the Ontario Department of Insurance to discuss obtaining authority for the sale of Agents General policies in the United States. (Tr., p. 113 and pp. 100-101). After returning from the meeting Wolfson dictated a letter to the Superintendent of Insurance on Agents General stationery for Cooper to sign, indicating the terms and conditions discussed. (Tr., pp. 101, 113-116; GX-6). On January 25, 1966 the requested authority was received from the Superintendent. (Tr., pp. 116-118; GX-7). Copies were forwarded to defendant Emmons. (Tr., p. 119; GX-8). Late in February 1966 Wolfson went to Agents General’s office in Canada and dictated a second letter to the Department of Insurance requesting an extension of territory in which his companies could write business. Tr., pp. 120-122; GX-9). The request was granted. (Tr., p. 123; GX-10). According to Cooper’s testimony he received on March 16, 1966 a bordereau purportedly showing business written on Agents General during February. (Tr., p. 148; GX-11). Later Agents General received what purported to be copies of two cover notes listed on the bordereau. (Tr., pp. 151-154; GX-12). These were the only two ever received by Agents General. (Tr., p. 158). Cooper also testified that Agents General was only authorized to write policies up to a liability limit of $10,000 or $12,500, depending upon the type of policy. (Tr., pp. 144-145; 280). Coverage was restricted to excess fire, excess liability, other than automobile, and automobile physical damage. (Tr., p. 150). Agents General had begun negotiations for reinsurance treaties to increase the liability limitations for insurance to be written in the United States. (Tr., p. 281). However, about the middle of April trouble developed. On April 14, 1966 a meeting was held at which representatives of Agents General, Canadian and British, Ltd., and the Ontario Department of Insurance were present. (Tr., p. 160). After Wolfson refused to disclose who the principals of Canadian and British, Ltd., actually were, the Superintendent of Insurance announced to those present, including Wolfson, that he was restricting Agents General’s license to write insurance to the Province of Ontario. (Tr., pp. 161-162). The following day the license of Agents General was recalled and replaced with one containing this territorial restriction. (Tr., p. 162; DX-4). Written notification was mailed to Canadian and British, Ltd.’s Nassau office and to Wolfson at the Wilmington office. (Tr., p. 162; GX-14 & 15). Following the meeting with the Superintendent, Wolfson, Emmons, and an attorney for them were present at a meeting of the directors of Agents General. (Tr., p. 168). Emmons stated that very few policies had been written other than those listed on the first bordereau. (Tr., p. 169). . Promises were made to supply Agents General with copies of the remaining cover notes and with a final bordereau. (Tr., pp. 169-170). None of these documents was ever forthcoming. (Tr., p. 170). Nor was there ever any remittance of money for any of the policies written and shown on the bordereau. (Tr., p. 183). In the early part of May 1966 Cooper received a letter from Capitol Underwriters of Harrisburg, Pennsylvania relative to claims on National Alliance Insurance Company, Ltd. (Tr., pp. 174-175). Later a telephone call was received from Arthur B. Taylor of Texas relative to claims on Agents General policies, and representatives of Agents General conferred with Taylor. (Tr., p. 175). These two inquiries constituted the first and the only notice Agents General received of any claims arising from policies written in the United States. (Tr., p. 173; note GX-16 & 17). No notice of such claims was ever given to Agents General by the defendants or their companies. On September 30, 1966 the Superintendent of Insurance for the Province of Ontario closed down Agents General permanently. (Tr., p. 171). The only contact either of the defendants had with Agents General from April of 1966 to September 30, 1966 occurred on September 20 when defendant Emmons and two unidentified men entered Cooper’s office and demanded $50,000 to be paid them, making threats against the lives of Agents General’s officers. (Tr., pp. 289-290). Later in October of 1966 Emmons suggested that all the corporations involved be put into bankruptcy and the principals split the remaining funds. (Tr., p. 295). Thomas T. Meredith, the head of Capitol Underwriters, Inc., testified that in November of 1965 approximately 200 policies which his agency had written with National Alliance Insurance Company, Ltd. were reinsured by Wolfson and Emmons with Agents General. (Tr., pp. 318-319; GX-21). Meredith also wrote new business on Agents General as of November 25, 1965, continuing on until April of 1966. (Tr., p. 337). Another insurance broker, Arthur B. Taylor, testified that he was authorized by Wolfson to write for Agents General in December of 1965. (Tr., p. 428). Pursuant to this authority, Taylor began selling Agents General policies at least as early as December 14, 1965 (GX-29). Upon being informed of the April 1966 restriction of Agents General’s license, Taylor informed defendant Frost of his knowledge on June 26, 1966 and ceased writing Agents General policies. (Tr., p.582; GX-34). Taylor supplied evidence that the bordereau sent to Agents General was false and that the two cover note copies also sent to Agents General were not in fact carbon copies. Taylor compared the carbon copies of two cover notes sent to him for transmittal to his insureds, CBI 10011 and 10012, with the carbon copies sent to Agents General and found that the value of the units insured, the effective date coverage began, and the amount of premiums were all different. (Tr., pp. 438-447). A comparison by Taylor of his copies of cover notes received from Excess with the corresponding cover note numbers on the bordereau sent to Agents General showed that the effective date and premiums listed varied on sixteen of the cover notes. (Tr., pp. 460-471). In addition, one cover note was reported to Agents General as “spoiled” though it. had been issued. (Tr., p. 461). On other cover notes the amount of premium charged varied from that shown on the bordereau. (Tr., pp. 471-474). Insurance agent Gene Smyers talked with Taylor in June of 1966. (Tr., p. 670). Eventually, after discussion with the Wilmington office of Canadian and British, Ltd., Smyers began dealing directly with them. (Tr., pp. 670-687). Finally in August-of 1966 Smyers had his clients’ policies with Agents General cancelled. (Tr., pp. 688-689). Ultimately Smyers filed the complaint with the postal authorities that led to the present case. (Tr., p. 706). Theodore Clutz and his son Laurence S. Clutz, operators of Multi-Line Underwriters of Kansas City, Missouri, were introduced to Wolfson in the latter part of 1965, (Tr., p. 727), and began writing insurance on Agents General in December. (GX-44, see CBI 10022). After acting as a local agent for some months, in October of 1966, Multi-Line Underwriters was given “binding authority” by Wolfson to issue their own cover notes with Agents General as the insurer. (Tr., pp. 738-735; GX-48 & 49; see GX-44 & 45). The Clutzes wrote policies on Agents General until December of 1966, when they were told to stop by Wolfson and Emmons and, later, by a postal inspector. (Tr., pp. 736; 792). Cheeks which the Clutzes sent to 2008% Pennsylvania Avenue were made payable to various companies and were cashed and deposited in various accounts. (Tr., p. 780; GX-50). Canadian and British, Ltd., Excess, and Interstate Reporting, Inc., according to the endorsements, were the principal recipients. (See GX-50). Liability on policies written by Multi-Line Underwriters ranged up to $300,000. (GX-44, CBI 10078). Peter G. Hansen, an insurance agent from Hurst, Texas, began placing truck liability insurance through defendants with Agents General in March of 1966. (Tr., p. 1061). He wrote six policies in all, the last one being in June of 1966. (Tr., p. 1067). In early September of 1966 he called Wolfson and confronted him with adverse information which he had received about Wolfson’s relationship with Agents General. At that time Wolfson stated that he had a contract with Agents General, that he had $200,000 deposited in Delaware, and that he was going to reinsure all Agents General policies. (Tr., p. 1063). In spite of this, on October 2, Hansen cancelled all of his outstanding Agents General policies. (Tr., pp. 1064-1068). Lloyd Jenness, an insurance broker from Elkton, Maryland, had originally placed business with Wolfson and Emmons and Excess in 1965 when they represented a company known as North American Surety. (Tr., p. 603). In 1966 Jenness placed some products liability insurance for certain fireworks manufacturers with Agents General through the Bassett Insurance Agency, operated by a former employee of Jenness. (Tr., pp. 603-604; GX-35 & 36). Liability ran to a maximum of $300,000. (GX-35 & 36). Eileen Burns, a secretary and telephone operator at the Brandywine Summit Shopping Center in Glen Mills, Pennsylvania, testified that in September or October of 1966 defendant Thompson came in and made an arrangement whereby a telephone was installed in the name of Interstate Reporting, Inc. and connected to Mrs. Burns’ telephone answering service. In addition Mrs. Burns received mail addressed to the company. However, at no time was any actual office space ever rented at the shopping center. (Tr., pp. 635-636; 643). Thompson introduced Mrs. Burns to a Mr. Wolfson and a Mr. Emmons and told her that they would be receiving messages through the Interstate Reporting, Inc. telephone. Numerous such messages were received. (Tr., pp. 637-638). Billy W. Carmichael, the manager of the main office of the Delaware County National Bank in Chester, Pennsylvania, produced a signature card and corporate resolution from the files of the bank showing that defendant Thompson had opened an account at the bank’s Media office on September 8, 1966 in the name of Interstate Reporting, Inc. (Tr., pp. 964-970; 973; GX-71). The account was closed April 11, 1968. (Tr., p. 973). Arthur Paul Reeher, an independent insurance adjuster, testified that he had handled a claim by Lewis George, Jr. and William George on their National Alliance Insurance Company policy, previously identified as having been reinsured with Agents General. (See Tr., p. 360; GX-21 and GX-80). Reeher testified that a salvage check, GX-75, was erroneously sent to him by the Buck-horn Salvage Company (Tr., p. 1032) in payment for a truck of the Georges which was demolished. (Tr., pp. 1015-1016; GX-80). He forwarded the check to defendant Thompson. (Tr., p. 1026). Reeher testified that in the normal course of the insurance business the salvage cheek should have been paid to either the lien holder or the owner, if the claim were not paid, or be kept by the insurance company and the loss paid, if the claim were honored. (Tr., pp. 1043-1045). A representative of the bank which held the lien testified that the bank received neither the salvage check nor any settlement. (Tr., pp. 1140-1141). It was stipulated that the Georges received nothing. (GX-80). Additional evidence was introduced in an attempt to prove a failure to pay claims. (See Tr., pp. 618-628; 853-904; 974-993; 1012-1046; 1122-1132). The indictment had included as an element of the scheme, the failure of the defendants to settle claims arising under insurance policies sold by them. (If 23). At trial the government changed its position and attempted to show that claims were simply ignored. (Tr., pp. 899-901). In any event, the offer of proof can only be described as a total failure. A large portion of the testimony was struck by the Court. (Tr., pp. 974-993). Virtually all of the remaining evidence refuted the government’s trial contention. (See Tr., pp. 879-881; GX-66; 1015-1017). However, in spite of the government’s failure to sustain its offer of proof as to the treatment of claims, the remainder of the evidence produced was sufficient for the jury to have reasonably concluded that there existed, in fact, a scheme or artifice to defraud. There was ample evidence presented for the jury to find that the defendants were engaged in a fraudulent scheme masquerading as a respectable insurance business. The testimony given plus the exhibits introduced showed that the defendants sold new insurance policies and reinsured old policies with Agents General at a time when they knew that the Ontario Superintendent of Insurance had not authorized Agents General to transact business in the United States and at a time even prior to the final agreement between the parties establishing an agency relationship. It was proven that Agents General policies were sold by the defendants after they were informed that authority to sell in the United States had been withdrawn by the Superintendent of Insurance and even after Agents General had been closed down and was out of business. It was shown that Agents General policies were sold by the defendants with liability limits far in excess of the limits authorized by Agents General. The prosecution also proved that the defendants sent a false bordereau of business and two falsified cover notes to Agents General, that the defendants failed to report policies sold to Agents General, that they failed to remit premiums for business transacted, and that they failed to notify Agents General of claims arising under policies which they sold. It was shown that various corporate shells were utilized, various addresses were used, and various bank accounts were maintained by the defendants to carry out these operations. Further, there was ample evidence adduced at trial from which the jury could have found that Wolf son and Emmons were confederates in the conspiracy to carry out the scheme shown. For example, both Wolf son and Emmons were present at a meeting in October of 1965 when the representatives of Agents General were informed that Canadian and British, Ltd. was to be listed as their American agent rather than Excess and when two contracts were formalized between the parties and were signed by defendant Wolfson. (Tr., pp. 89-96; GX-2 and GX-3). Emmons orally indicated that he was one of the principals. (Tr., p. 92). Both defendants entertained Cooper and Percy in Wilmington in mid-December of 1965 and held a business conference with them at 2008 Pennsylvania Avenue. (Tr., pp. 97-98). Both Wolfson and Emmons were present at a meeting in Canada on January 14, 1966 which closed the deal and sealed the relationship between Agents General and Canadian and British, Ltd. (Tr., p. 100). According to testimony a letter mailed to. Emmons in care of Excess ended up in the hands of Wolfson. (Tr., p. 120). Both Wolfson and Emmons in talking with Cooper denied writing any insurance prior to January 14, 1966. (Tr., p. 279). Wolfson and Emmons supplied Agents General with business records of Excess. (Tr., p. 293). There was testimony that both Wolfson and Emmons received messages through the telephone established by defendant Thompson at the Brandywine Summit Shopping Center in Glen Mills, Pennsylvania in the name of Interstate Reporting, Inc. (Tr., pp. 637-639). In addition cover notes for fireworks liability policies for Keystone Fireworks and Vitale Fireworks Companies were discussed by witness Lloyd Jenness with both Wolfson and Emmons. (Tr., pp. 601-603; 605; 613; GX-35, 36, 37). A secretary for Excess testified that Wolfson, Emmons, and Frost appeared to be the officers of the company. (Tr., pp. 998-999). Both Wolfson and Emmons discussed the reinsurance of policies of National Alliance Insurance Company, Ltd. with insurance agent Thomas T. Meredith, another witness. (Tr., p. 319). Witness Meredith also discussed the problem of claims with both Wolfson and Emmons. (Tr., p. 347). There was testimony that Wolfson introduced Emmons as his partner. (Tr., p. 730). Both Wolfson and Emmons were present at a meeting at O’Hare Field in Chicago in October of 1966 at which time Multi-Line Underwriters, operated by Theodore Clutz and Laurence S. Clutz, had their “binding authority” in regard to Agents General policies confirmed. (Tr., pp. 770-774; 818-819). There was testimony that both Wolfson and Emmons were involved in having Multi-Line Underwriters cease writing Agents General policies in December of 1966. (Tr., p. 792). A signature card showed that both Wolfson and Emmons, as well as defendant Frost and another individual, had the power to write checks on the account of Insurance Reporting Service, Inc. (Tr., pp. 851-852; GX-56). Thus there is ample evidence from which the jury could have found that defendants Wolfson and Emmons were confederated together in their transactions involved in the present case and that the overt acts alleged were committed by one or the other or both. B. Substantive Counts. Count 2 of the indictment charged the defendants with placing in the mails a letter to Multi-Line Underwriters in Kansas City, Missouri. The letter itself was introduced into evidence as GX-48. (Tr., p. 772). It was received by Theodore Clutz through the mails and was opened by him in his office. (Tr., pp. 769-770). No direct evidence that Wolf-son, Emmons, or an agent of theirs mailed the letter was ever produced. The issue thus presented is whether there was sufficient evidence for the jury to have found that the defendants placed the letter in the mails. It is well established that where the placing of a letter in the mails in violation of the mail fraud statute is charged, some evidence must be produced showing that the defendant actually placed the letter in the mails. Freeman v. United States, 20 F.2d 748, 750 (C.A. 3, 1927); Whealton v. United States, 113 F.2d 710, 713 (C.A. 3, 1940); United States v. Hopkins, 357 F.2d 14, 17 (C.A. 6, 1966), cert. den. 385 U.S. 858, 87 S.Ct. 107, 17 L.Ed.2d 84 (1966). Evidence of mailing can be either direct or circumstantial, but if circumstantial, the circumstances proved “must directly support an inference of the fact and exclude all reasonable doubt concerning its existence.” United States v. Berg, 144 F.2d 173, 174-175 (C.A. 3, 1944); Cohen v. United States, 50 F.2d 819 (C.A. 3, 1931). Moreover, the mere receipt through the mails of a letter signed by a person will not support a finding that that person, even if he in fact authored the letter, placed it in the mails. Whealton v. United States, supra, 113 F.2d at 713; Freeman v. United States, supra,. 20 F.2d at 750. Thus, in the present case, the mere receipt of the letter signed by Wolfson would not have been enough. However, there was more. Theodore Clutz testified that the letter was received in response to a letter which he and his son had mailed to Wolfson requesting written confirmation of the “binding authority” orally given them. (Tr., pp. 762-768; GX-47). In addition Clutz and his son Laurence S. Clutz both testified that Wolf-son added a handwritten clarification to the letter at a meeting between them at O’Hare Field in Chicago. At that time Wolfson gave no indication that he had not mailed the letter or that it had not been mailed at his instruction. (Tr., pp. 774-775; 818-819). The Court thus finds that there was ample circumstantial evidence from which the jury could have found that Wolfson, in fact, did mail the letter in question. Both the letter itself and its contents were properly admitted into evidence. The contents were properly before the jury for its consideration as to the other issues in the case. In order for a letter or other document containing facts which are material and relevant to be properly admitted into evidence two requirements must be met. First, the letter must be authenticated and secondly, its contents must come within an exception to the hearsay rule. Interamerican Refining Corp. v. Texaco Maracaibo, Inc., 307 F.Supp. 1291, 1300 (D.Del.1970). The letter in question was received through the mails in response to a letter sent by the Clutzes to Wolfson. (Tr., pp. 762-768; GX-47). It is an accepted rule of evidence that a letter received in due course through the mails in response to a letter sent by the receiver is presumed to be the letter of the person whose name is signed to it and is thus self-authenticating. Scofield v. Parlin & Orendorff Co., 61 F. 804, 806 (C.A. 7, 1894); Winel v. United States, 365 F.2d 646, 648 (C.A. 8, 1966) ; Purer & Co. v. Aktiebolaget Addo, 410 F.2d 871, 876 (C.A. 9, 1969), cert. den. 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84 (1969). However, a gloss has been placed upon this by the case of Consolidated Grocery Co. v. Hammond, 175 F. 641 (C.A. 5, 1910), which held that in order for the “reply letter rule” to be invoked it is necessary for proof to be introduced that the original letter, to which the reply letter in question was responsive, was actually written and mailed. In the present case there was testimony that the original letter, GX-47, was in fact written and mailed to Wolfson. (Tr., pp. 762-766). Therefore, the “reply letter rule” was properly invoked and the letter was thus authenticated. Being written by defendant Wolfson it obviously fell under the party admission exception to the hearsay rule. The remaining counts were based upon the receipt of letters by Wolfson, Emmons, and the various corporations involved. Counts 3 and 4 alleged receipt of two letters (GX-22 and GX-21) mailed by Thomas T. Meredith to Emmons. It is an established rule that when mail matter is properly addressed and deposited in the United States mails with postage duly prepaid thereon, there is a rebuttable presumption of fact that it was received by the addressee. Columbian National Life Insurance Co. v. Rodgers, 93 F.2d 740, 742 (C.A. 10, 1937); Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Rosenthal v. Walker, 111 U.S. 185, 193, 4 act. 382, 28 L.Ed. 395 (1884). But, unless it is shown that a letter is correctly addressed to the street or post office box and city of the addressee or that mail similarly misaddressed is regularly delivered to the addressee by the post office, the presumption will not be entertained. General Accident, Fire & Life Assurance Corp. v. Pacific Coast Casualty Co., 247 F. 416, 419 (C.A. 2, 1917); Baltimore & Ohio R. Co. v. Reaux, 59 F.Supp. 969, 971-972 (N.D. Ohio 1945); Chicago, R. I. & P. Ry. Co. v. Chiekasha National Bank, 174 F. 923, 930-931 (C.A. 8, 1909); Cf. Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 37, 11 S. Ct. 691, 35 L.Ed. 332 (1891). There was ample evidence in the present record that the defendants used the addresses to which the letters involved in this ease were mailed. Meredith testified that he placed the letters in the mail in the ordinary course of business. (Tr., pp. 321-324). He did not testify that the letter was properly addressed or that sufficient prepaid postage was affixed. Nevertheless, it has been held that evidence that a letter is duly mailed carries with it the presumption that it carried sufficient postage. Phenix Insurance Co. v. Schultz, 80 F. 337, 340 (C.A. 4, 1897). Yet, the usual presumption that a letter properly stamped, addressed, and mailed is received by the addressee will not prevail where the record does not show the address to which the letter was mailed or shows that the letter was mailed to the wrong address. Flowers v. Aetna Casualty & Surety Co., 163 F.2d 411, 416 (C. A.6, 1947); Kansas City Life Insurance Co. v. Cox, 104 F.2d 321, 325 (C.A.6, 1939); Kiker v. Commissioner of Internal Revenue, 218 F.2d 389, 392 (C.A.4, 1955). Therefore, the requirements necessary to raise the presumption of receipt were not met as to GX-22 and GX-21. However, there was circumstantial evidence of the receipt by the defendants of GX-22. This evidence was the receipt by Meredith of a telegram, GX-23, purportedly from Canadian and British, Ltd. in Nassau, Bahamas. (Tr., pp. 325-327). Since no objection was made as to the authenticity of the telegram, the parties waived any objection and the telegram can be considered to be authentic. Collins v. Streitz, 95 F.2d 430, 436 (C.A.9,1938), cert. den. 305 U.S. 608, 59 S.Ct. 67, 83 L.Ed. 387 (1938). The receipt of this telegram sent by one of the corporations on whose behalf defendants acted in response to Meredith’s letter was circumstantial evidence that the defendants, in fact, received the letter. This is sufficient to uphold the conviction of defendant Emmons on Count 3. There being no such circumstantial evidence as to GX-21, the evidence presented was insufficient to sustain the conviction of Emmons on Count 4. Count 5 charged defendant Wolfson with the receipt of GX-19, a letter from witness Cooper to Wolfson. It was identified as having been written by Cooper. (Tr., pp. 181-182). In addition there was testimony that this letter was prepared for mailing and placed in the proper channels for mailing at the Agents General office. (Tr., p. 309). In order for this to be sufficient to show that the letter was mailed certain evidence must be presented. The requirements are set forth in United States ex rel. Helnecke v. Rice, 281 F. 326, 331 (S.D.Tex.1922): “ * * * the ruling principle is that the fact of mailing, where that fact is an important one, must be proven, like any other fact, by direct or circumstantial evidence, and that, where there is no direct evidence of mailing, it is not sufficient proof of mailing to offer testimony merely that the general custom of an office was to mail all letters and notices. “The better rule, and that which seems to be established by the weight of authority, is that in the absence of direct evidence there must be proof of an invariable custom or usage in an office of depositing mail in a certain receptacle, that the letter in question was deposited in such receptacle, and in addition there must be testimony of the employee, whose duty it was to deposit the mail in the post office, that he either actually deposited that mail in the post office, or that it was his invariable custom to deposit every letter left in the usual receptacle, and that he never failed in carrying out that custom.” The failure to produce the employee whose duty it was to deposit the mail in the post office has been held to be a fatal defect. Clayton Chemical & Packaging Co. v. United States, 150 F.Supp. 628, 629-630 (Ct.Cust.1957); Orlex Dyes & Chemicals Corp. v. United States, 168 F.Supp. 220, 223 (Ct.Cust.1958); United States v. Barnette, 91 F.2d 10, 11 (C.A. 5, 1937); Masters v. United States, 229 F.2d 677, 679-680 (C.A.6, 1956); Cf. Knickerbocker Life Insurance Co. v. Pendleton, 115 U.S. 339, 345-346, 6 S.Ct. 74, 29 L.Ed. 432 (1885). However, there is a split of authority, as recognized in the Rice case, over whether the strict standard enunciated in Rice is necessary, particularly whether the mailing clerk’s testimony is vital to raise the presumption of receipt in this situation. The J. L. Luckenbach, 1 F. Supp. 692, 703 (S.D.N.Y.1932), aff’d 65 F.2d 570 (C.A.2, 1933); see Annotation 25 A.L.R. 5 and 86 A.L.R. 541. While it would appear that the majority of jurisdictions is in accord with the standard set by Rice, some courts have held that the testimony of the mailing clerk is not necessary and that mailing may be presumed from proof of a custom of mailing in the ordinary course of business. Myers v. Moore-Kile Co., 279 F. 233, 235-236 (C.A.5, 1922); Livingston v. Becker, 40 F.2d 673, 676 (E.D.Mo.1929); Avant v. United States, 165 F.Supp. 802, 804 (E.D.Va.1958); Roupp v. Woods, 177 F.2d 149, 151 (Em.App.1949). This question does not appear to have been presented to the Third Circuit Court of Appeals or to this Court before. This Court will apply the stricter test for proof of mailing. It is the opinion of this Court that for a large business enterprise, such as Agents General, where an officer of the company who had a letter placed in an outgoing mail basket would not have personal knowledge that the mail clerk actually deposited the letters in the post office, the strict standard of the Rice case should apply. In the present instance the mail clerk was not produced as a witness. No circumstantial evidence was presented as to the defendants’ receipt of GX-19. Therefore the evidence was insufficient to sustain the conviction of defendant Wolfson as to Count 5. Count 6 charged defendant Wolfson with receipt of GX-16, a letter from Cooper relating to claims. As with Count 5, there was evidence of Cooper’s authorship and consent to its admission into evidence. (Tr., pp. 249-251; 282; 304-309). However, once again there was no evidence as to mailing sufficient to meet the requirements set forth above. Consequently the conviction of defendant Wolfson as to Count 6 cannot be sustained. Count 10 charged both Wolfson and Emmons with receipt of GX-17, a letter from Meredith to Excess. (See Tr., p. 285). Meredith testified that he mailed it in the ordinary course of business in the United States mails to Frost. (Tr., p. 373). Evidence that the letter was mailed to the proper address is lacking. Therefore the conviction of Wolf-son and Emmons under Count 10 cannot be sustained. Count 14 charged Wolfson and Emmons with receipt of a memo from Arthur B. Taylor, GX-33. There was ample testimony adduced by the prosecution that GX-33 was, in fact, mailed, Taylor testified that he personally mailed the letter in question (Tr., p. 562), that he put prepaid postage on the envelope (Tr., p. 563), that he mailed it to Excess at Post Office Box 949 in Wilmington (Tr., p. 563), that the envelope in which it was sent had a return address on it (Tr., p. 565), and that the letter was not returned. (Tr., p. 566). The presumption of receipt was thus raised. Therefore the conviction of Wolfson and Emmons as to Count 14 will not be set aside. Count 15 charged Wolfson and Emmons with receipt of another memo from Taylor, GX-34. Taylor testified that he mailed the memo to Canadian and British Insurance Managers at 2008 Pennsylvania Avenue in Wilmington, which was the address he knew to be the correct one. (Tr., p. 573). Taylor personally mailed it with the proper prepaid postage affixed. (Tr., p. 574). Ample and complete proof of mailing was presented, sufficient to raise the presumption of receipt and uphold the conviction. Count 19 charged Wolfson with receipt of a letter from Laurence S. Clutz, GX-54. Clutz testified that he mailed the original letter to the defendants at Post Office Box 949 in Wilmington with prepaid postage affixed. (Tr., p. 820). In addition, he stated that the mailing envelope had a return address on it and that the letter was never returned. (Tr., pp. 820-821). Since ample and complete evidence of mailing necessary to raise the presumption of receipt was thus adduced, this count will be sustained. Count 21 charged Wolfson and Emmons with the receipt of a letter from Vera Dee Onstott, an employee of Gene Smyers, GX-43. The letter was admitted as a business record of Smyers’ company (Tr., p. 693), but no attempt was ever made to show that it was mailed, Therefore Count 21 cannot be upheld. Count 24 charged Wolfson with receipt of a letter from Laurence Clutz, GX-55. There was testimony that the letter was sent by registered or certified mail and that a return receipt was received. (Tr., pp. 822-823). This circumstantial proof of receipt was sufficient for the jury to have found that defendant Wolfson received this letter. Therefore Count 24 will be sustained. Count 25 charged Emmons with receipt of a letter from Laurence Clutz, GX-46. Clutz testified that the letter was mailed to Emmons at 2008% Pennsylvania Avenue in Wilmington with proper postage affixed. (Tr., pp. 760-761). While Clutz testified that he might not have placed the letter in the post office himself, he did have personal knowledge that the letter was in fact mailed. (Tr., pp. 761-762). Therefore, the requirements to raise the presumption of receipt were met and the conviction will be upheld. Count 28 charged Wolfson and Emmons with receipt of another letter from Laurence Clutz, GX-47. Not only was evidence as to mailing sufficient to raise the presumption of receipt adduced (Tr., pp. 762-765), but circumstantial evidence of a reply from the defendants was also adduced. (Tr., p. 768). Thus convictions on Count 28 were adequately supported. Counts 7, 20, 23, 26, 27, and 29 charged Wolfson or Emmons or both with receipt of various checks made out to one or more of the corporations utilized by them in carrying out their scheme to defraud. As to GX-42 (Count 20) there was a certified mail receipt introduced into evidence showing that the cheek was mailed by certified mail, with the necessary postage affixed, to the proper address, so receipt can be presumed. (Tr., pp. 682-683; GX-42). As to the remainder of the checks there was testimony that they were placed in the mail, that proper postage was affixed, and that they were sent to one or the other of the addresses used by the defendants or their various corporations. Thus the presumption of receipt was raised as to GX-59 (Count 7) (Tr., p. 869), GX-28 (Count 23) (Tr., pp. 430; 433-434), and GX-51, 52, and 53 (Counts 26, 27 and 29) (Tr., pp. 780-785). Therefore, the convictions on the six counts relating to the checks will all be sustained. In summary, this Court, after a careful review of the evidence including all inferences to be drawn therefrom, taken from the point of view most favorable to the government, and assuming the truth thereof, has found that as to Counts 4, 5, 6, 10, and 21 the evidence was insufficient to sustain the convictions. Therefore as to these counts the Court will grant a judgment of acquittal pursuant to Rule 29(c), F.R.Crim.P. As to the other counts the defendants’ motions will be denied. II. MOTION FOR A NEW TRIAL In their motion for a new trial and supporting briefs the defendants claim that they were denied their right to a fair trial (1) by the Court’s denial of the defendants’ motions for severance, (2) by the government’s failure to produce Jencks Act material in accordance with the pretrial order, (3) by the Court’s refusal to provide the defense counsel with daily transcripts of the testimony of prosecution witnesses at government expense, (4) by the government’s concealment and failure to call a witness who would have been useful to the defense, (5) by the government’s lack of preparation in its presentation of the case, resulting in the admission of certain evidence of an irrelevant, hearsay, or prejudicial nature, (6) by the government’s reference to the defendants in closing argument as “crooks” and “viruses,” and (7) by the Court’s refusal to give a jury instruction on Canadian law requested by the defendants. These grounds will be dealt with individually. A. Denial Of Severance Motions Wolfson and Emmons contend that they were deprived of their constitutional rights by the denial of their motions for severance in that they were prejudiced by being tried with defendants Thompson and Frost. Principally they argue that the Court’s granting of defendants Thompson and Frost’s motions for acquittal made it appear that they, Wolfson and Emmons, were guilty of any and all wrongdoing shown. This Court in an earlier opinion rendered in this case (294 F.Supp. 267, 275-276), after a lengthy review of authority rejected the defendants’ motions for severance. The defendants have failed to convince the Court of any error in that decision. It is well established that the grant or denial of a motion for severance rests in the discretion of the Court, United States v. Marchant, 25 U.S. (12 Wheat.) 480, 6 L.Ed. 700 (1827), and that the trial court commits error only when it abuses its discretion in the matter. United States v. Lipowitz, 407 F.2d 597, 599 (C.A.3, 1969), cert. den. sub nom. Smith v. United States, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 1969); United States v. Barrow, 363 F. 2d 62, 67 (C.A.3, 1966), cert. den. 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967). It is also clear that separate trial should be granted where the defenses of the different defendants are antagonistic and where, as a result, prejudice would result to the moving party. United States v. Sharp, Fed. Cas.No.16,264 (C.C.D.Pa.1815); United States v. Noble, 294 F. 689, 691 (D.Mont. 1923), aff’d 300 F. 689 (C.A.9, 1924). In the present case, however, there is absolutely nothing in the record to indicate any conflict occurred among the defendants. In order to set aside a conviction because of refusal to grant a severance a strong showing of prejudice is neeesesary. United States v. Hutul, 416 F.2d 607 (C.A. 7, 1969), cert. den. 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970), reh. den. 397 U.S. 1081, 90 S.Ct. 1519, 25 L.Ed.2d 820 (1970). In the present case no showing of prejudice has been made. Therefore, the Court finds no merit in the defendants’ contentions on this issue. B. Production of Jencks Act Material A paragraph of the pretrial order provided : “7. Handling Documents Under Jencks Act (18 U.S.C. § 3500): The Government will make available to each attorney for the defendants a copy of the prior recorded statements of each witness at least one week before the witness is expected to testify.” The defendants contend that the government violated this provision of the order. The problem arose in this context: When the government called Lloyd Jenness as a witness, the United States Attorney submitted to defense counsel a handwritten page of notes made by Postal Inspector Turner. These were notes relating to a discussion which Turner had previously had with Jenness. At the time the notes were submitted to defense counsel, the United States Attorney stated: “ * * * I have made an effort to find out whether there are any notes of Mr. Turner outstanding, and although the submission is belated according to our prior agreement, it is not belated according to the statute, and I submit this to defense counsel to look at it.” (Tr., p. 600). No objection was made to this tardiness nor was any application for a trial delay presented to the Court at the time. Following the disclosure, the direct examination of Jenness proceeded. During cross-examination by Wolfson’s counsel, Jenness was asked questions based on Turner’s notes in an effort to impeach Jenness’ direct testimony. (Tr., pp. 629-630). Defendants’ claim that they were in some manner prejudiced is rejected. In the first place, it does not appear that Turner’s handwritten notes of a previous conversation with Jenness were Jencks Act material, as contemplated by the pretrial order. An investigator’s “rough notes” or memoranda containing an agent’s interpretations and impressions are not normally within the scope of the Jencks Act. United States v. Augenblick, 393 U.S. 348, 354-355, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); United States v. Hoffa, 349 F.2d 20, 48 (C.A.6, 1965), aff’d 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), reh. den. 386 U.S. 940, 951, 87 S.Ct. 970, 17 L.Ed. 2d 880 (1967); Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); United States v. Crosby, 294 F.2d 928, 951 (C.A.2, 1961), cert. den. sub_ nom. Meredith v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed. 2d 523 (1962), reh. den. sub nom. Mittleman v. United States, 369 U.S. 881, 82 S.Ct. 1138, 8 L.Ed.2d 285 (1962). The Jencks Act applies only if the memorandum is signed by the witness, Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961), or if the memorandum is read back to the witness and affirmed by him as being an accurate statement. Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). Nothing in the present record indicates that Jenness affirmed Turner’s notes. In fact, Jenness disputed a minor portion of their contents on cross-examination. But more importantly, even if Turner’s notes were considered Jencks Act material, the defendants have failed to point out any prejudice which was occasioned by the prosecution’s failure to produce them a week prior to Jenness’ testimony, as required by the pretrial order. At most this was a technical violation of the order and not a violation of the Jencks Act requirement since the Act simply provides for disclosure “[a]fter a witness called by the United States has testified on direct examination” and only after a motion by the defendant. 18 U.S.C. § 3500(b). In the absence of any showing of prejudicial harm to the defendants, the Court finds that such a technical violation of the pretrial order calling for early disclosure of Jencks Act information does not constitute grounds for granting a new trial. C. Refusal to Provide Daily Transcripts The defendants have alleged that they were denied their constitutional rights by the Court’s refusal to order that they be furnished with a daily transcript of the testimony of prosecution witnesses at government expense. (Tr., p. 9). The Court finds no error in this ruling. Where a defendant and his counsel are present during all trial proceedings, it has been held that the refusal to order a daily transcript to be prepared is not error. United States v. Kaufman, 393 F.2d 172, 176 (C.A.7, 1968), cert. den. 393 U.S. 1098, 89 S.Ct. 892, 21 L.Ed.2d 789 (1969). In the present case the defendants and their counsel were present throughout the whole trial and had the right to take notes or have secretaries with them to make any notes desired. Neither side had daily transcripts of the testimony. The Court also denied a motion to allow defendant Wolfson to record the testimony with a tape recorder. (Tr., p. 14). The Court was of the opinion that to allow one of the defendants to operate such a device in court might create a disruption and distract the jury and counsel, preventing the orderly conduct of the trial. The Court also denied the motion because of the possibility of creating a dispute as to the accuracy of the official record. It has been held that, because of the danger of impuning the official record, it is not error to refuse a defendant permission to have his own reporter record the proceedings in shorthand, where both sides were allowed to have secretaries present to take notes. World Wide Automatic Archery, Inc. v. United States, 356 F.2d 834, 837 (C.A.9, 1966), cert. den. sub nom. Hegg v. United States, 385 U.S. 860, 87 S.Ct. 111, 17 L.Ed.2d 86 (1966). The Court thus finds no error in its ruling. D. Concealment Of A Vital Witness The defendants have alleged that they were denied their constitutional rights by the government’s misconduct in suppressing evidence which would have been vital to the defendants’ case. This misconduct was allegedly occasioned by the prosecution’s active concealment of S. J. Sexton of Toronto, Canada, the Deputy Superintendent of Insurance for the Province of Ontario. According to a post-trial affidavit filed by F. L. Peter Stone, the United States Attorney for this District and one of the prosecutors in this case, Sexton was brought to Wilmington on November 5, 1969, the third day of the trial. He was interviewed that afternoon in the United States Attorney’s office. After deciding that Sexton would not be called as a prosecution witness, the government allowed him to return to Canada. At no time during' trial was the Court or defense counsel informed of Sexton’s presence in Delaware. The defendants claim that Sexton, who was present at a meeting held on April 14, 1966 in the office of the Superintendent of Insurance in Toronto, between the Superintendent and the defendants, was of material significance to the defense. The defendants also contend that Sexton could have acted as their expert witness on Canadian insurance law. Since Sexton resided in Canada and was thus not subject to the compulsory process of a United States court, the defendants argue that because of the government’s failure to notify them that Sexton was present in Delaware and thus subject to the process of this Court, they were denied their Sixth Amendment right “to have compulsory process for obtaining Witnesses in [their] favor.” It has long been settled in this Circuit that the prosecution’s suppression, concealment, or failure to disclose evidence it has discovered which is useful to the defense constitutes a denial of due process of law. United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R. 2d 1407 (C.A.3,1952), cert. den. 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341 (1953), reh. den. 345 U.S. 946, 73 S.Ct. 828, 97 L.Ed. 1371 (1953); United States ex rel. Thompson v. Dye, 221 F.2d 763 (C.A.3, 1955), cert. den. sub nom. Pennsylvania v. United States ex rel. Thompson, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773 (1955). This view was specifically approved by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady the Supreme Court overturned the conviction of a defendant whose attorney was refused access to a statement tending to exculpate the defendant after the attorney had requested the statement. In its opinion the Court stated: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.” (Emphasis supplied). 373 U.S. at 87, 83 S.Ct. at 1196. A formal request of the prosecution is not necessary under Brady where the prosecution fails to disclose the existence of a witness important to the defense. United States ex rel. Meers v. Wilkins, 326 F.2d 135 (C.A.2, 1964); Lee v. United States, 388 F.2d 737 (C.A. 9, 1968). However, the present case does not involve the failure of the government to disclose the existence of, the name of, or the whereabouts of a witness. In fact, Sexton was interviewed in Canada by one of the defense counsel, with travel and lodging expenses paid by the government. It has been held that the mere fact that an American court lacks the power to subpoena witnesses, other than American citizens, from foreign countries, thus preventing a defendant from obtaining compulsory process for witnesses in his behalf, does not make any resulting conviction unconstitutional under the Sixth Amendment. United States v. Haim, 218 F.Supp. 922, 925-927 (S.D.N.Y.1963); United States v. Greco, 298 F.2d 247, 251 (C.A.2, 1962), cert. den. 369 U.S. 820, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962). The government is under no duty to search for witnesses desired by the defense. Ferrari v. United States, 244 F.2d 132, 141-142 (C.A.9, 1957), cert. den. sub nom. Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 124, 2 L.Ed.2d 78 (1957); United States v. Di Gregorio, 148 F.Supp. 526, 528 (S.D. N.Y.1957). However, it is clear that the Sixth Amendment’s right to compulsory process is violated by the prosecution deliberately sending a witness beyond the jurisdictional reach of a court’s compulsory process. People v. Wilson, 24 Ill.2d 425, 182 N.E.2d 203 (1962); People v. Williams, 40 Ill.2d 367, 240 N.E.2d 580 (1968). The defendants do not claim that the government deliberately sent Sexton back to Canada to prevent him from testifying. Instead, a more subtle issue is raised by the defendants’ charge that the prosecution’s concealment from them of any knowledge of Sexton’s presence in Delaware denied them their Sixth Amendment right to compulsory process. Presumably had the defendants known of Sexton’s presence in Delaware, just down the corridor from the clerk’s office, they could have served him with process compelling him to appear in their behalf. The defendants’ lack of knowledge, not occasioned by any bad faith on the part of the prosecution, prevented this. While a criminal defendant has an absolute right to Sixth Amendment compulsory process, it is the opinion of this Court that two things must be shown, in the situation here presented, before a denial of this right can be found. First, there must be a showing (a) that the potential witness is competent to testify and (b) that he possesses material, relevant evidence having some tendency to aid the defendant’s case. See Thompson v. United States, 372 F.2d 826, 828 (C.A.5, 1967). Second, there must be a showing (a) that some effort was made to obtain the appearance of the witness or that an attempt has been made to obtain the evidence of the witness by deposition or otherwise and (b) that some notice was given to the prosecution or that the prosecution was, in fact, aware of the defendant’s need for the witness, or that steps were not taken to obtain the witness’s appearance because the prosecution, by promises or assurances, lulled the defense into believing that such actions were unnecessary because the witness would be made available to the defense. See Ellhamer v. Wilson, 312 F.Supp. 1245, 1250-1251 (N.D.Cal.1969); Cf. Lamb v. United States, 414 F.2d 250, 251-252 (C.A.9, 1969). The defendants in this case have failed to show that they meet the first requirement. The post-trial affidavit of United States Attorney Stone (attached to Paper # 129) indicates that Sexton had little or no recollection of the April 14, 1966 meeting. The post-trial affidavit of defense counsel, Donald C. Taylor, counsel for defendant Wolf-son (Paper # 146), filed at the Court’s request, mentions nothing about any testimony Sexton could have given relative to this meeting or any other event involved in this case. Therefore it can be concluded that Sexton would not have been competent to testify as to the facts i