Full opinion text
MEMORANDUM RAMBO, District Judge. The four individual defendants and two corporations in this action were charged with a conspiracy in unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The trial of all defendants resulted in a jury verdict of guilty against all defendants. On September 3, 1982 defendant Jack D. Murphy died. On October 1, 1982 a joint motion of dismissal of the charges and an abatement of the proceedings as to Jack D. Murphy was filed. The motion was granted by order of this court on the same date. Now pending before the court are the post-trial motions of H & M, Inc., RSE, Inc., William H. Quigley, Jr., D. Robert Rimmer and Walter E. Rimmer. All the defendants have moved under Rule 29 of the Federal Rules of Criminal Procedure for judgment of acquittal on the grounds that there was insufficient evidence to support the verdict. Defendants RSE and the Rimmers allege the evidence was insufficient to prove their acts were within the ambit of the Sherman Act. They have also moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure alleging that the verdict was contrary to the weight of the evidence or that trial error was committed. Defendants H & M, Inc. and William H. Quigley, Jr. have moved for an arrest of judgment under Rule 34 of the Federal Rules of Criminal Procedure alleging that the indictment does not charge an offense and that the court is without jurisdiction. I. Interstate Commerce Section 1 of the Sherman Act prohibits contracts, combinations and conspiracies “in restraint of trade or commerce among the several States.” 15 U.S.C. § 1 (1976). This phrase both defines the conduct prohibited by the Statute and its jurisdictional reach. Western Waste Service Systems v. Universal Waste Control, 616 F.2d 1094, 1096 (9th Cir.) cert. denied, 449 U.S. 869,101 S.Ct. 205, 66 L.Ed.2d 88 (1980). The jurisdictional requirement may be satisfied under either the “effect on commerce” or the “in commerce” theory. McLain v. Real Estate Board of New Orleans, 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980). Defendants have moved this court to find that the Government has neither sufficiently alleged in the indictment nor proved at trial that motopaving in the four-county area of Dauphin, Cumberland, Perry and Lebanon affected interstate commerce or was in the flow of commerce. Specifically, defendants H & M, Inc., Quigley, contend that the indictment must allege either that the complained of activities affected interstate commerce or that the conspiracy involved a product in the flow of interstate commerce. Defendants RSE, Inc. and the Rimmers contend the evidence was insufficient at trial to show the requisite interstate nexus. The court will first examine defendants’ arguments concerning the affect on commerce test. In McLain the Court held that it was unnecessary for the alleged antitrust violations to have affected interstate commerce as long as defendants’ business activities, independent of the violations, affected interstate commerce. The Court stated: To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings either that the defendants’ activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce... To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents’ brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents’ activity that are alleged to be unlawful. 444 U.S. at 242, 243, 100 S.Ct. at 509, 510. The McLain Court then used a two part test to examine the record as it stood to determine if petitioners had a sufficient basis to proceed to trial to establish Sherman Act jurisdiction. The Court first found that an appreciable amount of interstate commerce was involved in the financing of residential property in the Greater New Orleans area and in the insuring of titles to such property. The Court then examined whether the defendants’ activities “which allegedly had been infected by a price-fixing conspiracy ... [had]” as a matter of practical economics” ... a not insubstantial effect on the interstate commerce involved.” 444 U.S. at 246, 100 S.Ct. at 511 (citation omitted). The Court found that: Brokerage activities necessarily affect both the frequency and the terms of residential sales transactions. Ultimately, whatever stimulates or retards the volume of residential sales, or has an impact on the purchase price; affects the demand for financing and title insurance, those two commercial activities that on this record are shown to have occurred in interstate commerce. Where, as here, the services of respondent real estate brokers are often employed in transactions in the relevant market, petitioners at trial may be able to show that respondents’ activities have a not insubstantial effect on interstate commerce. Id. The McLain decision has not been interpreted consistently by the circuit courts. The Ninth Circuit has held that Sherman Act jurisdiction exists when any business activity of a defendant affects interstate commerce. Western Waste Service, 616 F.2d at 1097; Ronwin v. State Bar of Arizona, 686 F.2d 692 (9th Cir.1981). Under a more conservative view of McLain, the Tenth and First Circuits, have stated that a plaintiff must point to the relevant channels of interstate commerce logically affected by the defendant’s unlawful conduct. Crane v. Intermountain Health Care, Inc., 637 F.2d 715 (10th Cir.1980); Cordova & Simonpietri Ins. v. Chase Manhattan Bank, 649 F.2d 36 (1st Cir.1981). The parties have not cited any opinions from the Third Circuit Court of Appeals interpreting McLain. This court concludes that the Ninth Circuit’s approach is consistent with McClain’s language and application. McElhinney v. Medical Protective Co., 549 F.Supp. 121,127 (E.D.Ky.1982). Contra, Pao v. Holy Redeemer Hospital, 547 F.Supp. 484 (E.D.Pa.1982). The court therefore rejects defendants’ contentions that the conspiratorial activities themselves must affect interstate commerce. The court will now examine the indictment and the Government’s proof at trial under McLain as interpreted by the Ninth Circuit to determine if the “affect on commerce test” has been met. The allegations of the indictment pertaining to the connection between the alleged conspiracy and interstate commerce are as follows: During the period of time covered by this indictment the defendants and co-conspirators performed motopaving work in. the four county area. In that area they bid for motopaving contracts let by various governmental bodies including townships and boroughs. During the period of time covered by this indictment, there was a substantial, continuous and uninterrupted flow of liquid bituminous material from suppliers outside the Commonwealth of Pennsylvania to job sites in the four county area and to processing plants in the Commonwealth of Pennsylvania for use by the defendants and co-conspirators, for motopaving projects within the four county area. During the period of time covered by this indictment, essential equipment was used in the business of motopaving by defendants and co-conspirators, in the four county area, which equipment had been purchased and transported from locations outside the Commonwealth of Pennsylvania. During the period of time covered by this indictment, the activities of the defendants and co-conspirators which are the subject of this indictment were within the flow of, and substantially affected, interstate commerce. At trial the government proved the following facts. Crushed aggregate and liquid asphalt are the two major ingredients in motopaving (N.T. p. 45). The bulk, if not all, of the asphalt used by the motopaving companies in the four-county area came from refineries in Baltimore, Maryland (N.T. pp. 52, 56, 156-157, 262-265, 337, 571, 1135). The asphalt is the most expensive product of the blacktop mix (N.T. pp. 1063, 1135). There was evidence that on some days no trucks delivered the asphalt, on some days as many as four or five trucks would be dispatched to jobs (N.T. p. 53). Each truck load carried approximately 5000 gallons (N.T. pp. 53, 1265) with a cost of about $1500.00 in 1977. The cost varied during the years from 1972 to 1980 from .15 cents to .75 cents per gallon (N.T. p. 266). Evidence was also presented to show that some bonding companies used by motopaving contractors in the four-county area for bid, performance and payment bonds were located outside the Commonwealth of Pennsylvania. See e.g. Gov’t.Ex. 311-E and Gov’t.Exs. 300-E, F, G and H. One motopaving contractor testified that the cost of the performance bonds was one percent of the contract price (N.T. p. 130). In addition there was testimony that the' equipment used in motopaving in the four-county area was purchased out of state (N.T. pp. 46-47, 151, 266, 1030-31). While there was no testimony indicating how often equipment was purchased, there was testimony that the cost of one machine was $135,000. (N.T. p. 84). Applying the two step analysis of McLain, it is evident that an appreciable amount of interstate commerce is involved in motopaving in the four-county area specified in the indictment. This commerce consists of liquid asphalt purchased from Baltimore, performance bonds purchased from companies located in New Jersey and New Hampshire, and essential motopaving equipment purchased from companies in Indiana, New York and Massachusetts. Furthermore, it is clear that defendants’ activities, i.e. motopaving in the four-county area, which allegedly have been infected by a conspiracy to allocate customers, rig bids and fix prices on motopaving projects in the same area, have as a matter of practical economics, a not insubstantial effect on the previously identified channels of interstate commerce. The above testimony established the effect of defendants’ motopaving activities on the purchase of interstate liquid asphalt, performance bonds and essential equipment. The Government’s evidence was sufficient to prove the nexus between interstate commerce and motopaving in the four-county area. The court concludes that the effect on commerce has been met. Defendants also contend that the Government failed to allege and prove that motopaving was in the flow of commerce and that the court, by charging the jury on this theory, committed reversible error. The court finds no grounds requiring a new trial on these allegations. The pertinent aspects of the indictment and testimony discussing interstate commerce have been set forth above. The Government contends that testimony as to the composition and manufacturing process of motopaving plus testimony about the source of liquid asphalt used for motopaving clearly established that liquid asphalt and thus motopaving itself was within the flow of interstate commerce. Specifically, the Government points to testimony from Ward Wilson which established that the sole ingredients of motopaving are crushed stone and liquid asphalt (N.T. p. 45). Wilson also described the motopaving process as follows: There is a dump truck in front of it (the motopaver). The dump truck in front is dumping stone into the front hopper. That stone travels through into the middle of the paver to the mixer. There’s a big tank on the front here. You fill that tank with liquid asphalt before you start and also each time it runs empty. Inside the paver, there’s a mixer. It is a paddle type thing that beats around. The two materials both flow into that, are mixed together. They come out and are spread with augers to each side of the machine and comes (sic) out the back ready to roll. (N.T. p. 49) Previously cited testimony established that liquid asphalt, which the Government contends was the principal ingredient in terms of cost, came from Baltimore. The Government argues that the only intervening step between importation of the liquid asphalt from Baltimore and its placement on the road was the addition of the stone. No testimony was offered to establish that the physical characteristics of the asphalt were altered by the motopaver. On these facts, the Government analogizes to, among other cases, Rasmussen v. American Dairy Association, 472 F.2d 517 (9th Cir.), cert. denied, 412 U.S. 950, 93 S.Ct. 3014, 37 L.Ed.2d 1003 (1973) to support its theory that the alleged restraint occurred within the flow of commerce. Defendants RSE, Inc. and the Rimmers argue in their reply brief that the above facts and case law fail to establish that motopaving was in the flow of commerce. They contend that the liquid asphalt component of motopaving has undergone more than negligible processing and that its character has appreciably been altered. They cite this court’s previous decision in RSE, Inc. v. Pennsy Supply, Inc., 489 F.Supp. 1227 (M.D.Pa.1980) in support of their argument. This court finds its earlier opinion arguably distinguishable. In RSE, Inc., the court addressed the processing and components of asphaltic concrete known as hot mix to determine if the sale of liquid asphalt purchases were sufficient to place the sale of stone aggregate in the stream of commerce. The court cited the following descriptive statement from Gulf Oil Corporation v. Copp Paving Company, Inc., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974) concerning the processing of hot mix: Asphaltic concrete is a product used to surface roads and highways. It is manufactured at “hot plants” by combining at temperatures of approximately 375° F, about 5% liquid petroleum asphalt with about 95% aggregate and fillers. The substance is delivered by truck to construction sites, where it is placed at temperatures of about 275° F. Because it must be hot when placed and because of its great weight and relatively low value, asphaltic concrete can be sold and delivered profitably only within a radius of 35 miles or so from the hot plant. 489 F.Supp. at 1235. This court further stated in RSE, Inc. that to make the hot mix, stone, asphalt cement and other ingredients were mixed and treated to produce an entirely different product. 489 F.Supp. at 1235 (emphasis added). The court finds the above processing description of hot mix arguably distinguishable from the processing of motopaving described by witnesses Wilson and Rimmer (N.T. pp. 49, 1054, 1056, 1060). Furthermore, defendants point to no testimony addressing the alteration of the physical characteristics of the liquid asphalt. This court also notes that the Seventh Circuit in United States v. Azzarelli Construction Co., 612 F.2d 292, 295 (7th Cir.1979) stated that “It is doubtful whether, even under the ‘flow’ theory such a change (chemical and molecular change or the creation of a new product, when crude oil and asphaltic cement were combined to make bituminous concrete) would suffice to render § 1 of the Sherman Act inapplicable.” While the Seventh Circuit did not definitively decide if bituminous concrete was within the flow, this court finds its statement helpful. Defendants RSE, Inc. and the Rimmers also seek to discredit the Government’s reliance on Rasmussen. The court finds no significant distinctions. In Rasmussen, the principal ingredients of the filled milk product “Go” traveled in interstate commerce. Only water which made up the major portion of “Go” in terms of volume and weight was locally supplied. The court found that “Go” was “in” commerce. In the instant case, liquid asphalt which travels in interstate commerce makes up, in economic terms, the major portion of motopaving (See N.T. pp. 53, 266). Although defendants allege that stone aggregate was carefully considered in calculating the price of motopaving and thus cannot be considered economically de minimus as was the water in Rasmussen, this court disagrees. While testimony established that the cost of stone was a factor in calculating bids (N.T. pp. 90-91, 797, 1054, 1057-58) the only figure given in those portions of testimony was an estimate of 18 cents per ton for 1-B stone (N.T. p. 1054). No further specific costs have been cited by defendants. On this basis, the court is justified in concluding that the cost of stone, in comparison to liquid asphalt was de minimus. The court finds these facts sufficient to warrant congressional regulation of interstate commerce under § 1 of the Sherman Act. II. Jury Instructions on Interstate Commerce Defendants H & M and Quigley further contend that the1 court erred in instructing the jury on the “flow” test because the facts failed to support such a theory. The relevant portions of the court’s instructions are set forth at N.T. pp. 1459-1464. Defendants RSE, Inc. and the Rimmers contend that the court’s charge on the “flow” test amounted to a directed verdict because it failed to include the defendants’ contention that motopaving could not be considered in the flow of interstate commerce. Assuming without deciding that the court erred in instructing the jury on the “flow” test, no reversible error was committed. The general rule is that where alternative theories are presented to the jury, one erroneous and prejudicial, and the other correct, the error is prejudicial since it is impossible to tell which theory the jury followed. Nicola v. United States, 72 F.2d 780, 787 (3d Cir.1934). There is no prejudice, however, when, in order for the jury to find an essential element of crime based on the erroneous instruction, it must necessarily have found every fact essential to support a finding of the same element based on the alternative, correct charge. See United States v. Jacobs, 475 F.2d 270 (2d Cir.1973), cert. denied, sub nom., Lavelle v. United States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1974). In Jacobs, the court stated: Whether the jury found Lavelle and Jacobs guilty on the first [incorrect] theory submitted to it, or on the second [correct theory], or on both, there is thus no uncertainty that the jury found every fact necessary for a valid conviction.... 475 F.2d at 283-84. See generally, United States v. Baratta, 397 F.2d 215 (2d Cir.), cert. denied, 393 U.S. 939, 89 S.Ct. 293, 21 L.Ed.2d 276 (1968), reh. denied, 393 U.S. 1045, 89 S.Ct. 613, 21 L.Ed.2d 597 (1969). The case at hand provides identical circumstances to those in Jacobs. For the jury to have found interstate commerce on the basis of the court’s instruction on the “flow of interstate commerce” theory, it must necessarily have found that a principal ingredient of motopaving in the four-county area was liquid asphalt which was transported in interstate commerce. Such finding of facts also establishes every element necessary to a finding of interstate commerce under the court’s instruction on the “affect on interstate commerce” theory. Consequently, regardless of the theory on which the jury based its finding, it is evident that the jury found every fact necessary to establish the requisite nexus between motopaving in the four-county area and interstate commerce. Defendants H & M, Inc. and Quigley also allege error in the court’s refusal to give their proposed jury instructions numbers two and three. The court has adequately addressed the inappropriateness of these instructions in the foregoing paragraphs addressing the jurisdiction requirements of the Sherman Act. III. Jury Instruction on Continuing Conspiracy Defendants RSE, Inc. and the Rimmers further contend that the court erred in its charge with regard to adequately informing the jury of the Government’s burden of proving defendants’ membership in one continuing conspiracy. In support of their allegation, defendants cited two portions of the court’s charge. One citation dealt with the statute of limitations and was taken out of context (N.T. pp. 1456-1457). The adequacy of jury instructions is determined by examining the instructions as a whole. U.S. v. Palmeri, 630 F.2d 192, 201 (3d Cir.1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981). The pertinent parts of the court’s instruction on the contested issue are as follows: The indictment defines the exact nature of the charge against these defendants. The defendants are entitled to rely upon the indictment as a fair statement of the issues of this case, and none of them may be convicted upon other allegations or charges for which they have not been indicted (N.T. p. 1442). You are, therefore, to evaluate the evidence in this case in relation to the charge made in the indictment. That is, you must determine whether it is proved to your satisfaction beyond a reasonable doubt that any, some, or all of the defendants are guilty of the charges specified in the indictment. Now, the indictment charges that beginning at least as early as 1967 and continuing thereafter until at least September of 1977, the defendants and other co-conspirators engaged in a combination and conspiracy in unreasonable restraint of trade and commerce in violation of Section 1 of the Sherman Act and that this combination and conspiracy consisted of a continuing agreement, understanding and concert of action among the defendants and co-conspirators (N.T. pp. 1443-44). What must be proved beyond a reasonable doubt is that the alleged conspiracy was knowingly formed and that two or more persons, including one or more of the defendants on trial now, knowingly became members of the conspiracy charged in the indictment. In arriving at your decision in this case, you must determine both whether there is a conspiracy as charged in the indictment and whether any of the defendants were members of that conspiracy (N.T. p. 1449). Now, before you may find any defendant guilty, the Government must prove beyond a reasonable doubt that a particular defendant was a member of the single conspiracy charged in the indictment, that is a conspiracy to allocate customers or rig bids or fix prices on motopaving work in the counties of Lebanon, Dauphin, Cumberland and Perry during the period from at least 1967 through at least September 1977 (N.T. p. 1453). Defendants now on trial are entitled to a trial on the merits based on the evidence and the law of this case. What you should consider here is the charge as it is contained in the indictment against the defendants now on trial... Thus, if you should find beyond a reasonable doubt from the evidence in the case that the conspiracy charged in the indictment was knowingly formed and that the defendants or any of them knowingly became members of the conspiracy as charged, then the fact that a defendant may have believed in good faith that what was being done was not unlawful would not be a defense (N.T. p. 1456). If it appears beyond a reasonable doubt that the evidence in the case, that the conspiracy alleged in the indictment was knowingly formed, that the accused knowingly became a member or members of the conspiracy, either at the beginning of the plan or scheme or thereafter, then the success or failure of this conspiracy to accomplish its common object or purpose in whole or in part is immaterial. I caution you that you are here to determine the guilt or innocence of the accused and [sic] the evidence in this case. The defendants are not on trial for any act or conduct or offense not alleged in the indictment (N.T. 1466-67). In addition to the preceding instructions given by the court at the close of trial, during its deliberations the jury requested a re-explanation of the definition of conspiracy. After the court reread its entire charge as to conspiracy it was brought to the court’s attention that it had omitted a paragraph in the re-explanation of the charge. The court continued with this statement: THE COURT: Ladies and gentlemen of the jury, there is one additional item that I omitted in reviewing the notes. That is before you may find any Defendant guilty, the government must prove beyond a reasonable doubt that the Defendant was a member of the single conspiracy charged in the indictment. That is a conspiracy to allocate customers or rig bids or fix prices on motopaving work in the counties of Lebanon, Dauphin, Cumberland and Perry during the period from at least 1967 to at least September of 1977. You may now return. Transcript of Proceedings of Jury Trial— Jury Questions and Verdict, pp. 14-15. Supplemental charges must be considered as an addition to the original instructions and not as an independent charge. U.S. v. Blevins, 555 F.2d 1236, 1239 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978). The court’s instructions when viewed as a whole sufficiently defined for the jury the Government’s burden with respect to proving a single, continuing conspiracy as charged in the indictment.I **** IV. Admissability of Donald Snyder Statement Defendants contend that the court erred in admitting the testimony of F. Murray Bryan concerning a statement made in his presence by Donald F. Snyder. The court permitted the testimony pursuant to Rule 804(b)(3) of the Federal Rules of Evidence. Rule 804(b)(3) states in pertinent part: Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true. In U.S. v. Palumbo, 639 F.2d 123 (3d Cir.) cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981), Judge Adams in a concurring opinion set out a three prong test for the admissibility of inculpatory declarations against interest: [T]he statement is receivable only if (1) the declarant is unavailable as a witness; (2) the statement is so far contrary to the declarant’s pecuniary, proprietary or penal interest that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the trustworthiness of the statement is corroborated by the attendant circumstances. Id. at 131. This court will apply the three prong analysis to the facts of this case. There is no question as to Donald Snyder’s unavailability. Mr. Snyder died in 1980. In determining whether the statements made by Donald Snyder on September 20, 1979 were against his interest, the court held a voir dire examination of Snyder’s attorney, James K. Thomas, II, who was present at the time Snyder made the statement in the presence of F. Murray Bryan. Thomas testified that he was personally retained by Snyder after Snyder received a deposition subpoena to testify in connection with a civil antitrust suit. Snyder told Thomas that he had participated with other people in setting prices for FB-1 paving work (motopaving). Thomas recognN d the criminal nature of the conduct Snyder had described and advised him of the potential consequences of testifying at the deposition. He then advised Snyder as to his options, including the availability of his fifth amendment privilege not to testify. According to Thomas, Snyder decided he could not, in good conscience, assert the fifth amendment and if called to testify, would have to testify as to what occurred. Snyder, with Thomas’ advice, then decided to attempt to meet informally with the civil defense counsel (N.T. pp. 546-47). Snyder, accompanied by Thomas, subsequently met with civil defense counsel, including F. Murray Bryan, on September 20, 1979, at which time he gave the statement at issue. Snyder gave his statement with the understanding that he would not be subpoenaed by civil defense counsel to give deposition testimony and that he reserved the right to assert his fifth amendment privilege at trial if he desired to do so (N.T. pp. 548-49). Bryan testified that defense counsel also agreed to try to keep Snyder from involvement in the civil suit, and that they would not file a counterclaim against him in that civil suit or bring a separate suit against him (N.T. p. 576). Thomas and Bryan both testified that defense counsel specifically reserved the right to subpoena Snyder to testify at the civil trial (N.T. pp. 549, 576-77). Defendants contend that Snyder’s statement fails to satisfy the against-interest portion of the test set out above. They point to that part of the agreement reached by Snyder and the civil defense lawyers in which the latter agreed not to bring suit against Snyder through either a counterclaim or a separate suit. Defendants allege Snyder’s statements sought to curry favor with the civil defense attorneys to avoid civil liability and thus were made in his pecuniary interest. The court disagrees. The Snyder statements are on their face admissions of direct participation in a criminal conspiracy and therefore are statements against his penal interest. Even though the civil defendants agreed to keep Snyder as far away from the civil suit as possible, they reserved the right to call him as a witness at the trial. Snyder knew that the information he would give to Mr. Bryan would make it inevitable that he would be called as a witness if the civil suit went to trial. Snyder had already decided in the presence of his attorney, Mr. Thomas, that if called as a witness at trial he would have to testify as to what occurred. This decision was made before he met with Mr. Bryan and thus before Snyder could have known that the civil defendants would fore-go bringing suit against him in exchange for his voluntarily meeting with them. Furthermore, even though Snyder obtained an agreement from the civil defendants whereby the iatter agreed to forego suit against him, such an agreement would still not preclude the municipalities that were victims of the motopaving conspiracy in which Snyder admitted participation from filing suit against him. Additionally, Snyder’s statements would not preclude the Government from filing criminal action against him for his conspiratorial activities. Therefore, even assuming Snyder reduced some of his civil liability, his statements still tended to subject him to criminal liability as well as to other civil liability. Such statements satisfy the against-interest exception. United States v. Alvarez, 584 F.2d 694, 699 (5th Cir.1978). Defendants cite U.S. v. L’Hoste, 640 F.2d 693 (5th Cir.1981) in support of their contentions that Snyder’s statements should not have been admitted on the grounds that the statements were in, not against, his pecuniary interest. In L’Hoste, one Condon was a defendant in both a criminal and civil suit arising from the same underlying factual situation. Condon gave statements in his criminal trial which were contradicted by statements later given in his deposition for the civil trial. Defendant L’Hoste (a codefendant of Condon in the criminal case) attempted to use Condon’s deposition statement in support of L’Hoste’s motion for a new trial. Condon had refused to testify at a hearing on L’Hoste’s motion. The trial and appellate courts denied L’Hoste the right to use Condon’s civil deposition on the grounds the statements, while against Con-don’s penal interest, were in his pecuniary interest. The circumstances of L’Hoste are quite different from the case at bar. In L’Hoste, Condon was a party to a criminal and civil suit and his statements were clearly in his pecuniary interest. Here, Snyder was not, at the time of his statement, a party to any suit. Furthermore, Condon had given two contradictory statements and therefore his unreliability was clear. Here, Snyder did not give contradictory statements. Most importantly, the L’Hoste court set forth no corroborating circumstances that indicated the reliability of Con-don’s statements. As extensively discussed below, there are circumstances corroborating Snyder’s statement. Defendants contend that Snyder’s statement fails to meet the third test set by Judge Adams. Specifically, defendants argue that the circumstances surrounding the making of Snyder’s statement, demonstrate its unreliability. Defendants basically argue that Snyder’s statements are unreliable because he sought to curry favor with certain parties to avoid civil liability. They also argue that because of his personal animosity toward the Rimmers he had a chance to get even with old enemies and even up the score (Doc’t. # 86, p. 37). In sum, defendants allege Snyder was motivated to fabricate his story. Under 804(b)(3), trustworthiness, which comprises the third test set out in Judge Adams’ concurring opinion, is determined primarily by analyzing two elements: the probable veracity of the in-court witness and the reliability of the out-of-court declarant. United States v. Alvarez, 584 F.2d at 701. Defendants do not question the veracity of F. Murray Bryan. With regard to the second element, the court finds that the circumstances cited by the defendants do not render Snyder’s statement unreliable. The court does not find the statement unreliable solely because it was given in an informal setting. Knowing that a truthful statement would expose him to criminal liability, it was quite natural for Snyder to want to reduce his exposure. Although giving the statement informally may have created less chance that his admission would become public than if he had testified at the deposition, it still created substantial criminal exposure. Defendants assert that since Snyder retained his right not to testify at trial, his statement is unreliable. The court disagrees. This aspect of the agreement was illusory since no one could deprive Snyder of his constitutional right to remain silent. Anytime a statement against interest is introduced at trial, the declarant could assert his privilege not to testify were he called as a witness. Furthermore, civil defendants specifically retained the right to call Snyder as a witness at the civil trial, and Thomas testified that “[Snyder] decided he could not, in good conscience, take the Fifth Amendment and if called to testify, would have to testify as to what occurred” (N.T. p. 547). Defendants compare the circumstances confronting Snyder with those of an individual in custody of legal authorities. They also claim that Snyder was in the same predicament as a co-conspirator in U.S. v. Gonzalez, 559 F.2d 1271 (5th Cir.1977). Under the circumstances, both of these comparisons are inapposite. A custodial statement is generally made after the declarant has already been charged with a crime, or must feel that such charges are likely forthcoming. See Palumbo, supra. The declarant is therefore likely to believe the authorities already have evidence of his unlawful conduct. In his own mind, therefore, he may believe that he has little to lose by admitting liability, and that he can minimize the consequences of his misdeeds by currying favor with the authorities by implicating others. Snyder was not confronted with such a situation. Although the prospect of his being sued by civil defendants was slim, he knew he had much to lose by making his statement. His statement subjected him not only to criminal liability, but also to civil liability to his municipal customers as discussed above. Furthermore, unlike the circumstances of a custodial statement, Snyder’s statement of criminal and civil violations was not made to individuals in a position to eliminate or minimize the criminal sanctions or treble damage exposure Snyder faced as a result of his statement. The court also finds Gonzalez inapplicable. The Gonzalez court considered whether the grand jury testimony of a previously convicted co-conspirator (Guerrero) was admissible against a criminal defendant (Gonzalez) when Guerrero refused to testify at Gonzalez’ trial. The court refused to permit the use of the grand jury testimony. The court reasoned that Guerrero had been convicted and given immunity prior to making his grand jury statement and thus it was in his interest to testify. The court found that Guerrero would face civil or criminal liability only if he did not testify before the grand jury. Therefore whether he told the truth or not was incidental to what would happen to him if he did not say something. 559 F.2d at 1273. This court does not consider Gonzalez applicable to the fact situation of the instant case. Perhaps most compelling to this court in analyzing Snyder’s statement under the third test is the fact that key aspects of the statement were supported by corroborating evidence. One of the key aspects of Snyder’s statement was his description of the circumstances and the results of a meeting he attended with Murphy, Quigley, and Walter and Robert Rimmer in the Rimmers’ motor home (known as Fat Albert) in March 1977. According to Bryan’s testimony, Snyder stated that the individuals discussed township motopaving work for the upcoming season. He stated that government exhibit GX-3 was a product of that meeting, that it was in Murphy’s handwriting, and that it memorialized an allocation of townships among the defendant companies and his own. He further stated that some of the townships on the list were specifically allocated to each company, and others were allocated randomly by drawing names from a hat. He then stated that the company to which a township was assigned would not be underbid by the other two companies (N.T. pp. 586-95). Although at trial Robert Rimmer denied much of what Snyder said about this meeting and the list, in previous sworn testimony his description of events is strikingly similar to the description presented by Snyder. Rimmer, however, did not admit that RSE carried out its part of the agreement. Rimmer testified in a deposition given on March 11,1980 that he and Walter Rimmer met with Murphy, Quigley and Snyder in the Rimmer motor home in March 1977 and discussed the division of territory for 1977. He testified that Murphy specifically allocated certain townships to each of the companies, and that additional names were then drawn randomly from a hat. Robert Rimmer testified that he thought both he and Walter not only appeared to be interested in the hat draw, but that they actually promised Murphy that they would go along with his plan in order to learn what jobs he wanted. Deposition of D. Robert Rimmer, Vol. IV, at pp. 574-76 and 586-87, RSE, Inc. v. Pennsy Supply, Inc., 523 F.Supp. 954. (Attached as Appendix A to this opinion). At trial Rimmer testified that he had left the motor home and upon returning found the others already drawing names from a hat. According to his trial testimony, his only knowledge as to the purpose of the name draw came from Walter, and that Walter told him it was for promotional purposes (N.T. pp. 1222-28). Robert Rimmer’s deposition and trial statements conflict irreconcilably. The court concludes that since Robert Rimmer had the incentive at the time he made both statements to disassociate himself from knowledge that the name draw was for the purpose of allocating territories, his admission at his deposition that this was indeed the purpose, and that he himself actually participated in the draw, lends substantial support to the reliability of Snyder’s version of the meeting. Further corroboration of Snyder’s version of the 1977 meeting came from A1 Kane’s testimony that on several occasions he observed Walter Rimmer reviewing a copy of government exhibit GX-3 prior to establishing bids, (N.T. pp. 278-81) and that GX-3 was a xerox copy that Kane made of a document that Walter Rimmer kept in his desk (N.T. pp. 329-30). A handwriting expert testified that most of the handwriting on GX-3 was done by Murphy (N.T. pp. 24-41). Finally, examination of the 1977 bid results for municipalities listed on GX-3 reveals that no company under whose name a municipality was listed was ever underbid at that municipality by the other companies represented at the March 1977 meeting (N.T. pp. 696-705). This provides additional corroborating evidence of Snyder’s statement. Other aspects of Snyder’s statement are also corroborated by independent evidence. Snyder stated that there had been a prior allocation list similar to GX-3 (N.T. p. 602). Kane testified that in 1976 he had seen Walter Rimmer review such a list when bidding (N.T. p. 281). Snyder stated that he, Murphy, Quigley, and the Rimmers had met, he believed in 1975, at RSE’s new office building, and discussed bids and prices of motopaving (N.T. pp. 586, 596-97). Kane testified that he saw Murphy and Snyder with the Rimmers at RSE’s new building in the winter of 1976, and thought that he heard them talking to a fifth unseen individual (N.T. pp. 276-77, 310). Charlotte Walters testified that she saw the Rimmers with Murphy, Snyder and a fifth individual whom she did not know at RSE's new building in the spring of 1976 (N.T. p. 339). Although each individual dated the meeting differently, the conflict is not substantial. Furthermore, Snyder’s statement that a conspiracy existed was also corroborated by the testimony of Charles Witmer (N.T. pp. 158-166, 233-33) and Ward Wilson (N.T. pp. 68-83). The court concludes that Snyder’s statements met the tests of Rule 804(b)(3). Defendants also contend that Snyder’s statements were inadmissible on the grounds they violated defendants’ right of confrontation guaranteed by the sixth amendment. They cite Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1972), among other cases. Defendants H & M, Inc., and Quigley argue that Rule 804(b)(3) should be interpreted to preclude admission of Snyder’s statement based upon the legislative history of the Rule, which is set forth below. These defendants contend that admitting Snyder’s statement under Rule 804(b)(3) would effectively overrule Bruton. This court disagrees. The legislative history of the Rule was aptly described by Judge Adams in his concurrence in Palumbo: As originally drafted by the Advisory Committee, Rule 804(b)(3) precluded the admission of inculpatory statements. The final sentence of the draft rule provided: “This [exception] does not include a statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused.” Proposed Fed.R.Evid. 804(b)(4) (1969 draft), 46 F.R.D. 161, 378 (1969) (later renumbered as Fed.R.Evid. 804(b)(3)). While this sentence had been deleted by the time the Supreme Court promulgated the official Advisory Committee Draft of the Federal Rules of Evidence in 1972, see 56 F.R.D. 183, 321 (1972), the House of Representatives reinserted the exclusion of inculpatory statements, see House Committee on the Judiciary, Report on Federal Rules of Evidence, H.R.Rep. No. 93-650, 93d Cong., 1st Sess. 16 (1973), U.S.Code Cong. & Admin.News 1974, p. 7051. This restoration was of short duration, however, as the Senate rejected the House’s reference to inculpatory statements, see Senate Committee on the Judiciary, Report on Federal Rules of Evidence, S.Rep. No. 93-1277, 93d Cong., 2d Sess. 21-22 (1974), and it was the Senate’s position which was adopted by the conference committee, see Committee on Conference, Report on Federal Rules of Evidence, H.R.Rep. No. 93-1597, 93d Cong., 2d Sess. 12 (1974)... Ultimate rejection of the sentence forbidding admission of inculpatory declarations against interest might suggest a Congressional intent that such declarations should be admitted when the requirements of Rule 804(b)(3) are satisfied. But the reasons for the Senate’s omission of the sentence cast some doubt on such a spacious interpretation.. . The dispute between the Senate and the House ... arose from differing judgments concerning the propriety of codifying evolving evidentiary principles based on constitutional considerations. Congress decided ultimately that limitations on admissibility mandated by the Confrontation Clause should be left to the courts to propound and refine. There is no indication, however, of a clash of opinion within the Congress about whether traditional justifications for hearsay exceptions apply to inculpatory declarations against interest. Significantly, no Congressional committee suggested that inculpatory declarations are insufficiently reliable to be included within the Rule 804(b)(3) exception. The legislative history suggests, if anything, the contrary, for if either House had entertained such an opinion, it would have had no need to address the Bruton question; unreliability is an adequate — indeed, the historical-reason for treating hearsay statements as inadmissible, (footnote omitted) 639 F.2d at p. 130 (Adams, J. concurring). Judge Adams concluded that the history of the Rule was not inconsistent with a construction allowing the admission of declarations against interest that inculpated the accused, provided such admission did not abridge the sixth amendment’s Confrontation Clause. Judge Adams then referred to, among other cases, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1979) to determine the requirements of the Confrontation Clause. In Ohio v. Roberts, the-Court allowed the introduction into evidence of testimony given at a preliminary hearing by a witness who was not present at the subsequent state criminal trial. In its opinion the Court summarized the limitation imposed by the Confrontation Clause onto exceptions to the hearsay rule. The Court recognized that if the Confrontation Clause of the sixth amendment were read literally, “it would require, on objection, the exclusion of any statement' made by a declarant not present at trial ... if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.” 448 U.S. at 63, 100 S.Ct. at 2537. Justice Blackmun, speaking for the majority, noted that although the Confrontation Clause reflects a preference for face-to-face confrontation at trial, The Court, however, has recognized that competing interests, if “closely examined,” Chambers v. Mississippi, 410 U.S., at 295, [93 S.Ct., at 1045], may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U.S. [237] at 243 [15 S.Ct. 337 at 340, 39 L.Ed. 409 (1895) ] (“general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case”). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U.S. 97, 107 [54 S.Ct. 330, 333, 78 L.Ed. 674] (1934); California v. Green, 399 U.S. [149] at 171-172 [90 S.Ct. 1930 at 1941-1942, 26 L.Ed.2d 489 (1970) ] (concurring opinion). 448 U.S. at 64, 100 S.Ct. at 2538. The Court identified two hurdles that hearsay testimony must clear in order to comply with the Confrontation Clause. First, the hearsay declarant must be unavailable for cross-examination at trial. Second, the statement must bear adequate indicia of reliability. “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” 448 U.S. at 66, 100 S.Ct. at 2539. Applying the foregoing tests, this court finds no Confrontation Clause violation from the admission of Snyder’s statement. Clearly, Snyder was unavailable at trial for cross-examination due to his death. Furthermore, there were particularized guarantees of trustworthiness to ensure its reliability. In addition to the factors previously set forth on this issue, the court points to the fact that individuals who corroborated key aspects of Snyder’s statement were subject to cross-examination and continued their corroboration. This lends a high degree of reliability and trustworthiness to Snyder’s statement. See generally, United States v. West, 574 F.2d 1131, 1138 (4th Cir.1978). Additionally, defendants RSE, Inc. and the Rimmers had the opportunity to probe what they described as Snyder’s bias, lack of personal knowledge and faulty memory by cross-examining F. Murray Bryan about Mr. Snyder’s statement. These defendants, however, did not explore such matters with Mr. Bryan save one question which was repeatedly rephrased relating to Snyder’s bias (N.T. pp. 621-632). The court, therefore, does not find compelling defendants’ argument concerning their inability to probe key weaknesses in Snyder’s statement. The court finds one further indication of the reliability of Mr. Snyder’s statement. The court finds, based upon Mr. Bryan’s testimony, that the questioning of Mr. Snyder by civil defense counsel “partook of cross-examination as a matter of form.” Ohio v. Roberts, 448 U.S. at 70, 100 S.Ct. at 2541. The questions were leading, demanded detailed knowledge and probed for the basis of Snyder’s knowledge. Furthermore, since the civil defense attorneys questioning Mr. Snyder were interested in obtaining information which would prove helpful to their clients in defending or settling the civil case, the attorneys were pressing for accurate information. Undoubtedly, their questioning was not akin to direct examination. The form of questioning, therefore, adds further guarantees of reliability to Mr. Snyder’s statement. ' For all of the foregoing reasons, the court concludes that Snyder’s statement satisfies the Confrontation Clause tests set forth in Ohio v. Roberts. The foregoing analysis is not changed by the Bruton decision. The Bruton Court indicated in footnote 3 of the opinion that it was not abrogating hearsay exceptions: We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under the traditional rules of evidence ..., the problem arising only because the statement was ... admissible against the declarant Evans.... There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. (citations omitted) U.S. v. Bruton, 391 U.S. at 128, n. 3, 88 S.Ct. at 1623, n. 3. V. Admission of Co-Conspirator Statements Defendants RSE, Inc. and Walter and Robert Rimmer allege that the court breached its obligation under U.S. v. Trowery, 542 F.2d 623 (3d Cir.1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1132, 51 L.Ed.2d 555 (1977), when, pursuant to Federal Rule of Evidence 801(d)(2)(E), it admitted various statements against all defendants as statements of co-conspirators. To determine whether statements of an alleged co-conspirator are competent against the nondeclarant, the trial judge must make two findings. First, the court must decide whether the government has proved, by a clear preponderance of the evidence, independent of the hearsay statement, that a joint undertaking existed at the time of the statement or action. Secondly, it must decide whether the prosecution has proved participation in the conspiracy by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances. U.S. v. Trowery, 542 F.2d at 627, U.S. v. Bey, 437 F.2d 188, 191 (3d Cir.1971). The defendant against whom the statement is used need not be a member of the conspiracy at the time of the declaration. As long as the conspiracy and defendants’ participation in it are established by a preponderance of independent evidence, then declarations and acts of various members, even though made or done prior to the adherence of some to the conspiracy, become admissible against all co-conspirators. U.S. v. Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1947). The specific evidence cited by the court to show the existence of a conspiracy and each defendants’ participation therein, appears at pages 767-769 of the record. The evidence in the record and that cited by the court clearly establish by a preponderance of the independent evidence the joint undertaking and defendants’ participation. Defendants contend that the court should have expressed its view on the credibility of the evidence considered. In U.S. v. Continental Group, Inc., 603 F.2d at 457, the court stated: “There is no requirement in either of those opinions (Trowery or Bey) that the trial judge enter specific findings of fact supporting his conclusion that a clear preponderance of independent evidence has been presented establishing a conspiratorial relationship between the hearsay declarant and each of the defendants.” The court at p. 459 did indicate that such exposition might be the better method. Thus, if specific findings are not required to show the joint undertaking, it would be an anomaly, as the Government contends, to require the trial court to make specific findings as to credibility. YI. Severance Defendants H & M, Inc. and Quigley contend that the court erred in refusing to grant the motion for severance. Defendants contend that they were unable to refute the “highly prejudicial” testimony of the Rimmers because the former could not cross-examine the Rimmers. Defendants claim they would have had to implicate themselves in another separate conspiracy in order to cross-examine the Rimmers effectively. Specifically, defendants claim that in order to impeach the Rimmers they would have had to bring out on cross-examination that the Rimmers had filed a law suit against H & M, Inc. and Quigley alleging that the latter were conspiring to drive the Rimmers out of business. While H & M, Inc. and Quigley acknowledge that this information could be used to show that the Rimmers were biased and therefore that their testimony was not credible, defendants allege a serious problem could arise in bringing out this material. They contend that the same material would have been damaging to them because it would have brought to the jury’s attention the possible involvement of H & M, Inc. and Quigley in another conspiracy. Hence they would have had to defend against two conspiracies. The courts have articulated the grounds upon which a severance may be granted. Separate trials are required when co-defendants present defenses that are so irreconcilable as to be mutually exclusive. United States v. Provenzano, 688 F.2d 194, 198 (3d Cir.1982). Separate trials are not required, however, when co-defendants merely have inconsistent interests and may present antagonistic defenses. United States v. Addonizio, 451 F.2d 49, 62-63 (3d Cir.1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). Furthermore, a defendant is not entitled to a severance simply because a co-defendant takes the stand and implicates the former in a crime in which they both are charged. Madden v. Israel, 478 F.Supp. 1234, 1243 (E.D.Wis. 1979). Separate trials may also be required when the actual conduct of a co-defendants’ defense prejudices the defendant. United States v. Ziperstein, 601 F.2d 281 (7th Cir.1979). This ground for reversal requires a careful evaluation of the facts elicited, prejudicial tendencies and the entire course of the trial prior to the challenged conduct. Id., at 286. The court concludes that defendants have failed to establish grounds for a severance. Defendants were given every opportunity to cross-examine the Rimmers and thus to place on the record questions and answers so that the court could evaluate the prejudice to defendants arising from the Rimmers’ testimony. Defendants declined to cross-examine the Rimmers (N.T. p. 1169). Furthermore, the defendants did not request an in camera hearing on the cross-examination of the Rimmers. Defendants’ fears of ineffective or prejudicial cross-examination were speculative until such time as the actual testimony was heard. If defendants’ fears proved to be well founded this court could have severed the trial after the cross-examination of the Rimmers. Defendants must demonstrate that a joint trial would result in “the most compelling prejudice” in order for severance to be granted. U.S. v. Campbell Hardware, Inc., 470 F.Supp. 430, 437 (D.Mass. 1979), aff’d. on other grounds sub. nom., U.S. v. David E. Thompson, Inc., 621 F.2d 1147 (1st Cir.1980). Defendants have failed to demonstrate that kind of prejudice. Defendants contend that if they had been granted separate trials from the Rimmers, the Rimmers likely would not have testified. This is speculative at most. Nothing is offered in support of this contention other than the speculation that the Rimmers would exercise their right to remain silent. The likelihood of this happening would be contrary to the history of the case to date. The Rimmers appeared before the grand jury and testified. The Rimmers testified on their own behalf at this trial. Whether or not the Government would call the Rimmers as witnesses in a separate trial and if called whether they would testify is speculative. This court, however, cannot ignore the Government’s right to compel their testimony pursuant to Title 18 U.S.C. § 6002. Defendants also allege prejudice because the Rimmers’ testimony filled in gaps in the Government’s case particularly regarding the “Fat Albert meeting.” The court finds no merit to this claim. By the time the Rimmers testified, considerable testimony had already been given about the conspiracy including the Fat Albert meeting. While the Rimmers corroborated the Government’s case, no new testimony bolstering the Government’s case was given. In such circumstances, no prejudice exists. Ziperstein, 601 F.2d at 288. VII. Government’s Closing Argument All defendants contend that certain statements in Government counsel’s closing address constituted prejudicial error. The first statement complained of is underlined and appears below in context: Let’s look at the testimony when you consider who should be believed and who should not be believed. They said Bud Witmer is incredible. Have they once during the summations and during the testimony pointed out where Bud Witmer’s story is inconsistent with anybody’s else’s? They haven’t, not once. Why do they tell vou he is incredible? Because he has got bills, because he went to American Paving shortly after he left RSE, and for these reasons, he is a bad man and shouldn’t be believed. Well, he is a bad man. I am not going to tell vou that he is not. He is a conspirator, pure and simple. He violated the law from 1970 to ’73. He was as guilty as these gentlemen sitting in the courtroom. I am not going to tell you he is a pillar of the community. But is his story consistent with what else was said in this case? I submit that it is (N.T. pp. 1415-16). Defendants contend that the underlined portion denied them a fair trial because Government counsel improperly injected personal belief concerning the guilt of defendants. The Third Circuit has set forth rules governing when reversal is required for prosecutorial misconduct. In U.S. v. LeFevre, 483 F.2d 477, 478-79 (3d Cir.1973) the court adopted Standard 5.8(b) of the American Bar Association’s Prosecution Standards as the law governing practice in the district courts of this Circuit. That standard provides: It is unprofessional conduct for the prosecutor to express his personal belief or opinion °as to the truth or falsity of any testimony or evidence of the guilt of the defendant. Standards Relating to the Prosecution Function and the D