Full opinion text
PER CURIAM: Appellant was convicted on seven counts of a nine-count indictment and sentenced to concurrent terms of one to three years on each count. The convictions were for wilfully attempting to evade payment of federal income taxes (Counts 1, 2); larceny and interstate transportation of fraudulently-obtained funds (Counts 3, 5, 7) ; and assisting another to falsify his federal income tax return and conspiring to defraud the Government and defeat collection of taxes (Counts 8, 9). Count 1 charged that appellant had filed a false and fraudulent return for the year 1961, understating his taxable income by approximately $5,000. The Government’s case was comprised principally of evidence that, though reporting accurately his salary as Secretary to the Senate Majority, appellant concealed other business income received by him during 1961 by sharing legal fees with his associate, Ernest Tucker, which Tucker declared as his own income. A major part of the Government’s proof related to a transaction in which a $5,000 fee due appellant for services rendered by him was paid to Tucker, deposited in Tucker’s account and transferred to appellant by Tucker’s personal check. The Government also attempted to show that appellant had failed to report $1,325 in income from a Florida real estate investment and that he had taken two impermissible deductions, totalling $2,113. Appellant countered with evidence that he had failed to take a number of allowable deductions, thereby over-reporting his 1961 taxable income by $2,-719. In rebuttal, the Government attempted to prove that a $14,000 profit on the sale of certain stock, reported by appellant as a long-term capital gain, was in fact a short-term gain since the stock had been held less than six months. As to this item, the Government conceded that the erroneous reporting had not been wilful. Count 2 related to appellant’s 1962 income tax return, in which, in addition to his Senate salary, appellant reported business income of $56,412. The Government again reconstructed appellant’s outside business income in an attempt to show that he had understated his taxable income by more than $48,000. The Gov-eminent premised its charge of evasion primarily on evidence that appellant had received $99,600 in cash campaign contributions from executives of various California savings and loan institutions, and that he had stolen the money and failed to report it as income on his 1962 return. Appellant admitted receiving the money, but testified that he had turned all of it over to the late Senator Kerr, who in turn lent $50,000 of it to appellant. A representative of the Internal Revenue Service testified that, accepting as true appellant’s version of the facts, his 1962 return slightly overstated his taxable income. Counts 3 and 5 charged larceny of $67,-000, which was part of the $100,000, receipt of which the Government had made the basis of the income tax evasion charge of Count 2. Count 7 charged that the remaining $33,000 had been fraudulently obtained by appellant and thereafter transported by him in interstate commerce. Count 9 charged a conspiracy among appellant, Wayne Bromley and Clifford Jones to falsify Bromley’s and appellant’s 1963 and 1964 tax returns, and to defraud the Government in its collecting of appellant’s and Bromley’s taxes for those years. The Government’s evidence showed that during 1962 through 1964 fees for services performed by appellant for a number of clients were paid by checks payable to Bromley on appellant’s instructions. In most instances the checks were cashed by Bromley and the proceeds given by him to appellant; on a few occasions, the proceeds of checks cashed by Bromley were retained by him as loans. Several checks payable to Brom-ley were endorsed and cashed by appellant’s secretary. Though, with one exception, he had performed no services for any of these clients, and had given most of the fees to appellant, Bromley expressly agreed, at least as to the fees from two of the clients, that he would report the money on his tax return, with appellant to reimburse him for any added tax liability incurred as a result. During 1963 a total of $11,000 from three different clients was received by Bromley and given by him to appellant. In addition, Bromley and appellant split a $5,000 fee for services in connection with the securing of a national bank charter, which had been paid by a check made out to Bromley. In his testimony at trial, appellant admitted these facts, except that he denied there was ever any agreement for Brom-ley to report the fees as his income and then to be reimbursed by appellant for the added taxes. He testified that his reasons for using Bromley as an intermediary in 1963 and 1964, just as his earlier arrangement with Tucker, were that he was not a member of the District of Columbia Bar and that he had been instructed by his employer, the Majority Leader of the Senate, not to engage in the private practice of law. Appellant reported on his 1963 return all the fees received through Bromley, that is, the $11,000 plus his share of the $5,000 bank charter fee. In December 1964, two months after he had filed his own 1963 return, appellant visited Bromley and assisted him in preparing his income tax return for 1963. Appellant advised Bromley to list the $11,000 in fees which had been given to appellant on the lines for “gross receipts” and “gross profit” on Schedule C of the return, and then to deduct that sum as “legal and professional fees.” Brom-ley drew up his return in accordance with these instructions, and filed it on December 30, 1964. The assistance rendered by appellant in the preparation of Bromley’s 1963 tax return gave rise to Count 8 of the indictment, which charged that he had wilfully counseled and assisted in the preparation of a materially false and fraudulent return. The defense sought, through cross-examination of Government witnesses and through the testimony of appellant and certain expert witnesses, to show that the reporting method employed was lawful and proper, and that appellant in recommending it to Bromley had relied on the advice of tax counsel and an accountant. The Government on cross-examination attempted to demonstrate that appellant had not disclosed all relevant facts to his counsel. Appellant filed a number of pretrial motions, including a motion for severance, a motion for discovery and inspection of grand jury minutes and a motion to suppress evidence illegally obtained through electronic surveillance, all of which were denied on December 20,1966, United States v. Baker, 262 F.Supp. 657 (D.D.C.1966). A motion to strike the jury panel was filed and denied on January 9, 1967, the day on which the trial commenced. During the trial, renewed severance and suppression motions were denied. The District Court also denied appellant’s motion for a new trial. United States v. Baker, 266 F.Supp. 461 (D.D.C.1967). On this appeal, appellant raises three points applicable to all seven counts upon which judgments of conviction were entered, relating to (1) alleged irregularities in the jury selection procedure; (2) the court’s refusal to grant separate trials on various counts of the indictment; and (3) the court’s handling of the electronic eavesdropping questions raised in appellant’s suppression motions. In addition, appellant contends that the court erred in failing to direct a judgment of acquittal on Count 1, and in permitting the Government to introduce rebuttal evidence outside the scope of the indictment and the Government’s bill of particulars; that the court improperly restricted the scope of cross-examination of Government witnesses who gave testimony on Counts 2, 3, 5 and 7; that the court usurped the jury’s function in entering judgments of conviction on Counts 3, 5 and 7 not in accordance with the jury’s verdicts; that the conviction on Count 8 should be reversed since it stated no offense as a matter of law, and because the evidence on that count was insufficient and the court’s instructions inadequate ; and lastly, that the court’s instructions on Count 9 were inadequate and misleading. I. The Jury Issue Appellant contends his conviction should be set aside because he was convicted by an illegally impaneled jury. This contention is based upon the following assertions: (1) a partial voir dire was conducted out of the presence of appellant and his counsel, (2) the array was illegally summoned, (3) the jury was stacked with Government employees, and (4) the Jury Commission drew the panel by use of an improper questionnaire and acted under an unconstitutional statutory provision, 11 D.C.Code § 2301(b) (1967). We find no merit in these allegations, only the first three of which require detailed comment. As to the first of these contentions, appellant claims that criminal defendants have the right to be present and represented during voir dire and that a partial voir dire was conducted in his absence on January 4, 1967, when 335 prospective jurors allegedly drawn specially for the Baker case were questioned as to their qualifications to serve as jurors. Appellant contends that the examination descended from general qualifications to particular suitability for the Baker case itself. While the Government concedes that, if a voir dire was in fact conducted, appellant was entitled to be present and represented, it argués that the only purpose of the January 4th proceeding was to ascertain the general qualifications of prospective jurors and to provide them with the opportunity to present their reasons for wishing to be excused from jury service. The record discloses that the trial judge, after telling the prospective jurors they had been summoned for general January duty, had the clerk ask the array a number of general questions. While hearing individual excuses, the judge, at the bench, informed at least five prospective jurors that jurors from this panel would be hearing the Baker ease, and three of these prospective jurors were excused. The Government admits that appellant’s name was mentioned to five veniremen, but argues that this is irrelevant since none of the five was ultimately selected. We find appellant’s arguments unpersuasive for several reasons. In the first place, although the District Court correctly decided that the January 4th proceeding was an administrative preliminary designed to test the qualifications and the availability of persons drawn to serve as jurors generally, and was not a “stage” or “step” in the trial, the issue is of no consequence because the three prospective jurors who were excused on January 4th would have been excused on January 9th when the case was called for trial in any event. Of the three people excused in the initial proceedings, one said she had formed an opinion as to appellant’s guilt, another stated he knew appellant’s attorneys and was apparently aiding a United States Attorney, and the third was excused because his employer could not get anyone to replace him. Thus, assuming arguendo there was a partial voir dire, it was at most harmless error to have conducted the January 4th proceeding in the absence of the defendant. Second, assuming the trial judge should not have made any reference to appellant, it is far too speculative to say that, because his name was mentioned to five prospective jurors who were not ultimately selected, the jury was so biased it couíd not reach a fair and impartial verdict. On trial the court’s voir dire questions were specifically drafted to ascertain whether any juror was familiar with the Baker case and had formed an opinion as to his guilt or innocence. Since these questions were sufficiently exploratory and there is no allegation of perjury in the answers thereto, we cannot conclude that appellant was prejudiced by the January 4th proceeding. Another point raised by appellant is that his jury panel was illegally summoned. This assertion is grounded on the fact that the trial judge ordered the Jury Commission to draw additional names for January service. The Dis^ trict Court apparently based this action upon 11 D.C.Code § 2309 (1967) and the fact that he knew additional names would be necessary to obtain a jury for this case. Appellant attacks the call for additional jurors on two grounds: (1) the District Court’s reliance on § 2309 is not justifiable because this section, read in conjunction with the other jury selection provisions and with District Court Rule 18, is part of a uniform procedure for summoning a single pool of jurors for service on all cases to be heard during a particular month, and this section does not provide for the calling of additional jurors or special veniremen for a particular case, and (2) the trial judge violated the ten-day provision of 11 D.C.Code § 2306. Although the District Court possibly should have foreseen this problem and either increased the January jury call or held the case over until February, we find no prejudicial error resulted from the procedure utilized by the trial judge. We think he did have the power to request additional jurors in view of the circumstances. Second, even if, as appellant contends, the additional jurors were not placed in the general pool until after appellant’s jury was drawn, we find no reversible error because the processing of these additional jurors, with the exception that appellant’s name was mentioned to the five above referred to, was in accord with normal procedures. Moreover, there is no indication that the District Court intended this to be an abnormal event, and the number of prospective jurors called did provide an adequate base from which the jury was selected. As far as § 2306 is concerned, we find no reversible error in the District Court’s failure to comply with the ten-day provision. The statute does not provide that the list of jurors must be sent to defense counsel and there is no indication that the purpose of the ten-day provision was to aid defendants. There is a federal statute which provides that a defendant in a capital case is entitled to a list of veniremen three days prior to trial, but there is no similar provision for non-capital cases. Furthermore, the appellant has not demonstrated he was prejudiced by this failure to draw the jurors ten days before trial. Appellant also submits that his conviction should be reversed because he was convicted by a jury made up solely, of Government employees. He contends this court could base reversal on either of the following: (1) the all Government employee jury resulted from the District Court’s decision, over defense counsel’s objection, to sequester the jury and its concomitant free-excuse policy, and (2) an all Government employee jury is inherently prejudicial in a case involving charges of multiple wrongdoings by a highly-placed Government official. We are not persuaded by these arguments. Although the jury finally selected did consist entirely of present or retired Government employees, we do not think this was a result of an easy-exeuse policy or sequestration. In our opinion the record not only does not reflect an intent on the part of the District Court to exclude non-Government workers, but the excuses granted were not conducive to the forming of an all Government employee jury. The District Court did not readily excuse everyone who did not want to serve and each excuse was considered individually. In any event the granting of excuses is a discretionary matter, and we find no basis in the record for holding that the District Court abused this discretion. In short, the record shows that neither the trial judge nor the parties deliberately or consciously attempted to exclude, or to include, a certain class and thereby to prevent a cross-section of the community from sitting on the jury. The decision to sequester the jury is also a discretionary matter. See Carter v. United States, 102 U.S.App.D.C. 227, 231, 252 F.2d 608, 612 (1957). Appellant submits that the sequestering of the jury was not justifiable because there were no exceptional circumstances as required by this court’s decision in Coppedge v. United States, 106 U.S.App.D.C. 275, 272 F.2d 504 (1959). The Government, however, submits that the trial judge did not abuse his discretion and there were exceptional circumstances involved. We think that the following facts support the Government’s position: (1) Appellant was a prominent national figure whose activities had been highly publicized by the communications media, (2) he had himself moved to dismiss the indictment on the ground that the grand jury was biased because of “extensive and intensive publicity,” (3) the court had been informed that Newsweek was planning to release, in about three weeks, a cover story on one of appellant’s attorneys, and (4) many television and radio stations and newspapers had requested accommodations in the courtroom. Finally, for several reasons, we reject appellant’s claim that an all Government employee jury was prejudicial. The Supreme Court in Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948), which was followed in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), held that bias is not imputed to Government employees simply because of their employment status, but they are subject to challenge for actual bias. Although the Court in Frazier relied heavily upon the manner in which the defense counsel had used his peremptory challenges and the fact that the jury was properly selected, we think that, even though appellant asserts technical irregularities in the selection of the jury in this case, the following statement by the Court is still applicable to the instant problem: In ruling upon petitioner’s objection the trial judge assessed the situation as follows: “Chance has resulted in this jury panel of twelve being composed of Government employees, but the jury list from which they by chance were selected is a mixture of Government employees and private employees.” Even in this view of what took place, petitioner has no cause to complain. The well-settled rule is that, given a lawfully selected panel, free from any taint of invalid exclusions or procedures in selection and from which all disqualified for cause have been excused, no cause for complaint arises merely from the fact that the jury finally chosen happens itself not to be representative of the panel or indeed of the community. There is, under such circumstances, no right to any particular composition or group representation on the jury. Id. at 507-508, 69 S.Ct. at 207. (Footnote omitted.) Since there is no bias imputed to a juror because of his employment status, we cannot base reversal on the mere fact that the jury consisted entirely of Government employees; and appellant has made no showing that any of the individual jurors was actually biased. Furthermore, one of the voir dire questions asked was: “Would you feel in any manner embarrassed in your employment with your supervisors or otherwise, if the jury of which you were a member returned a verdict of not guilty, in view of the fact that the Government is a party to this action?” Finally, if appellant sincerely felt he could not obtain an impartial and representative jury in the District of Columbia, he could have moved for a change of venue. II. THE SEVERANCE MOTIONS In his pretrial motion for severance appellant asserted that the various counts of the indictment, with the exception of 3, 4, 5 and 6, were improperly joined under Rule 8(a) of the Federal Rules of Criminal Procedure, and that even if properly joined a severance should be granted pursuant to Rule 14, because of the likelihood of prejudice. At oral argument on this motion, appellant’s counsel represented that in his view a “reasonable severance,” in light of “the basic dictates of fairness,” would be to try together Counts 1 and 2, Counts 3 through 7, and Counts 8 and 9. In denying appellant’s motion, the District Court observed, first of all, that “Defendant concedes” the propriety, under Rule 8(a), of joining Count 1 with Count 2, Count 8 with Count 9, and Count 3 with Counts 4, 5, 6 and 7 The judge then proceeded to consider whether “Counts 1 and 2 may be properly joined with Counts 8 and 9 and whether these four counts may be joined with Counts 3 through 7.” He concluded that Counts 1, 2, 8 and 9 were of “similar character,” that the “theft counts” (3-7) were “connected together” with Count 2, and that all the counts were therefore properly joined. He added that: all the counts of the indictment reflect a “common scheme or plan” whereby the defendant obtained large sums of money which constituted taxable income while concealing the same from the Internal Revenue Service by falsifying the tax returns of himself and others. * * * On the Rule 14 aspect of the motion, the District Judge recognized that discretionary relief from prejudicial joinder was available notwithstanding that the counts were properly joined under Rule 8(a). He held, however, that because of the “considerable overlap of proof” among the various counts, appellant had not made a sufficient showing that he would be prejudiced by the “cumulative effect” of the proof relating to different counts to warrant the exercise of such discretion. As to the “more serious” question whether appellant might be prejudiced because of his desire to testify on some counts but not on others, he concluded that the possibility of such prejudice was “problematical” at that stage of the proceeding. He therefore denied the request for Rule 14 relief “without prejudice” to its renewal: If, at trial, the defendant decides he wants to testify only in respect to one series of the joined offenses, it will be open to him to renew his motion and to demonstrate what actual prejudice he would incur by testifying on the joined offenses. One week later, in a pretrial conference, appellant’s attorney represented that there was a “sharp difference” in appellant’s position with respect to testifying on Counts 1 through 7 and testifying on Counts 8 and 9. Though he was unwilling to reveal in Government counsel’s presence which set of counts appellant wished to testify on, he indicated his readiness to disclose to the court in camera appellant’s exact intentions. He argued further that if the question of severance were deferred until after the close of the Government’s case substantial prejudice would already have accrued from the joint trial. Finally, he represented that the defénse would be satisfied with separate trials of Counts 1 through 7 and Counts 8 and 9, and that if such a severance were granted he would “not argue as a basis for appeal” the failure to sever other counts. Following this colloquy the District Judge indicated that he would not “rule right now on this question. I want to think it over and perhaps from time to time have the reporter read back to me what has been said.” The severance question was again brought up during trial, at the close of the Government’s case. Appellant’s counsel argued that if appellant were to take the stand and testify on certain counts but not on others, it would be a “dramatic underscoring of his invocation of the Fifth Amendment which * * * would be prejudicial to him with respect to the counts on which he did not testify.” He made clear, however, that because the Government had already introduced its evidence on all nine counts, the defense was not seeking simply an election by the Government as to which set of counts (1 through 7 or 8 and 9) it would go forward on, but that the relief requested was the declaration of a mistrial. At that point, the court stated: “Well, in view of that, counsel, the Court will deny your motion and go forward.” Though he had apparently not done so previously, appellant’s counsel then announced for the record appellant’s desire to testify on Counts 1-7 but not to testify on Counts 8 and 9, and the reasons for his decision. He explained that in his opinion appellant had a “valid legal defense to 8 and 9,” and added: And, secondly, we believe that there is a strong possibility that the defendant’s testimony in defense of eight and nine, might form a chain, incriminatory in nature, vis-a-vis the conflict of interest statutes of the United States which have not yet been barred by the Statute of Limitations insofar as prosecutions are concerned. On appeal, appellant challenges both the District Court’s conclusion that there was no Rule 8 misjoinder, and its refusal to grant relief under Rule 14. We deal with these contentions separately. a. Misjoinder — Rule 8(a) Appellant attacks, first of all, the District Judge’s finding that he “conceded” the joinability of Count 1 with Count 2, Count 8 with Count 9, and Count 3 with Counts 4, 5, 6 and 7. He contends that his remarks as to a “reasonable severance” were made in the context of his request for Rule 14 relief, and were not intended as a concession of proper joinder under Rule 8(a). Whether or not counsel’s statement was properly understood as an abandonment of his Rule 8 claim as to these subsidiary joinders, we think it is clear that Counts 1 and 2 were joinable as charging offenses of the same character; that Counts 3 through 7 were join-able, whether as charging offenses of the same or similar character or as offenses based on acts or transactions connected together or constituting parts of a common scheme or plan; and that Counts 8 and 9 were joinable, whether as offenses of similar character or as based on acts or transactions connected together or constituting parts of a common scheme or plan. And appellant makes no argument to the contrary, except to deny that he “conceded” these points below. Similarly, there can be little question as to the joinability of Counts 1 and 2 with Counts 8 and 9, and Counts 3 through 7 with Count 2. Count 9 (the conspiracy count), like Counts 1 and 2, charged conduct whose purpose was to fraudulently understate appellant’s income and thus avoid payment of tax. Indeed, the income-splitting scheme involved in Count 9 was nearly identical to the arrangement with appellant’s associate, Tucker, which formed a major part of the Government’s proof under Count 1. And we do not view it as material that Count 9 charged an unfulfilled conspiracy while Count 1 alleged actual non-reporting. As to Count 8, we think that counselling another to file a false return, with intent to deceive the Government, is conduct at least “similar” in nature to the wilful giving of false information on the defendant’s own return. Moreover, the acts which gave rise to Count 8 were intimately related to — and, on the prosecution’s theory, the product of — the conspiracy charged in Count 9. In concluding that Counts 3 through 7 were “connected together” with Count 2, the District Judge noted that the cash alleged to have been stolen in the former counts was that alleged to have been unreported in the latter, and thus that there would be a “complete overlap of proof”: [I]f a separate trial were ordered for the “theft” counts, the Government would still be faced with proving those counts in order to establish the source of the defendant’s unreported income as charged in Count 2. * * * We agree with the court’s conclusion on this point. In determining whether offenses are based on “acts or transactions connected together,” the predominant consideration is whether joinder would serve the goals of trial economy and convenience; the primary purpose of this kind of joinder is to insure that a given transaction need only be proved once. In view of this rationale, and the fact that the tax evasion charge could not be proved without establishing the theft as well, the District Court’s conclusion that the offenses were “connected together” was fully warranted. A more difficult question is whether, given these conclusions, a proper basis existed for joining all nine counts in a single indictment. The District Judge evidently felt that since Counts 1, 8 and 9 were joinable to Count 2, as offenses of the same or similar character, and since Counts 3 through 7 were joinable to Count 2 as connected offenses, it was proper to join all nine counts. On appeal, the Government argues that “since * * * the 1962 income tax charges, which inevitably required a finding as to conversion, were properly joined with the tax charges for 1961 and 1963-1964, the conversion charges were properly included in the indictment.” We do not understand the Government’s argument to be that counts joinable to a common count are always joinable to each other, but rather that where transactions are properly joined all offenses arising out of each transaction should be tried at the same time, unless to do so would unduly or prejudicially . complicate the proceeding. Apparently as an alternative basis for upholding joinder, the trial court found the indictment as a whole to reflect a “common scheme or plan.” In supporting this ground, the Government argues that all the violations charged constituted part of a common scheme or plan “whereby appellant endeavored to conceal from the internal revenue authorities significant sources and amounts of income obtained outside his official employment.” It relies heavily on Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1964), cert. denied, 382 U.S. 853, 86 S.Ct. 102, 15 L.Ed.2d 91 (1965), in which this court upheld the joinder against a single defendant of 27 counts — charging false pretenses, unlawful practice of the healing arts, unlawful possession of drugs and unlawful delivery of drugs — noting that the offense with which the defendant was essentially charged was “falsely holding himself out to the public as a licensed physician, and of performing acts in the course of that deception which a layman is forbidden to do.” Id. at 354, 342 F.2d at 933. The Government argues that here, “appellant’s efforts to hide the sources and amounts of income he personally received outside his Government employment was the nexus of all the statutory violations.” We need not rely on either of these theories in order to reject appellant’s claim that reversal is required because of misjoinder. For we think it is clear that, whether or not the theft counts could properly be joined with the four income tax counts, appellant was not harmed by any error in that regard. We have held that the four income tax counts could properly be tried together, since they were joinable as offenses of the same or similar character. As we have noted, evidence of the larceny was a necessary part of the proof of the 1962 tax evasion charge, and thus would have been admissible in any such joint trial. Addition of the theft counts, therefore, was in no way prejudicial to appellant insofar as his conviction on the tax charges is concerned. It is true that the joint trial may have prejudiced appellant in defending against the larceny charges, since evidence not only of the “connected” 1962 offense was admitted but also evidence of unrelated income tax offenses for other years. But the concurrent sentences imposed by the District Court make unnecessary any inquiry by us into the possibility of such prejudice. Appellant, however, contends that we are precluded from holding that any error as to joinder of counts was harmless — that upon a finding of Rule 8 misjoinder the court must ipso facto reverse the conviction “without pausing to consider whether the error was prejudicial.” The Government’s response is to inquire why the harmless error rule (Fed.R.Crim.P. 52(a)) should be inapplicable in this one situation when it applies to all other types of error, even, in a qualified form, to error of constitutional dimension. Appellant’s reasoning seems to be that the necessary implication of the Rule’s provision that certain offenses “may” be joined is that offenses not within its terms may not be joined; and that any inquiry into prejudice after a finding of misjoinder would be effectively to read Rule 8 out of the law, since Rule 14 makes separate provision for dealing with prejudicial joinder. But we think this argument ignores an important distinction between the prejudice that compels an appellate court to reverse for trial error, and the prejudicial effect of joinder, even when proper, which a trial judge must weigh in exercising his Rule 14 discretion. Because of the language of Rule 8 and the relationship of Rule 8 to Rule 14, it may readily be conceded that a trial judge has no discretion to deny a motion for severance when counts are misjoined, and that to do so would be error. But that leaves unresolved the question whether the defendant was harmed thereby. As Judge Friendly has said, “We see no reason why the undoubted truth that an appeal claiming misjoinder under Rule 8(b) raises a question of law in the strict sense, whereas an appeal from denial of severance under Rule 14 normally raises only one of abuse of discretion, should carry exemption from the harmless error rule * * * as a corollary.” United States v. Granello, 365 F.2d 990, 995 (2d Cir. 1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967). It has been said that “any form of joinder not permitted by the terms of * *■ * Rule [8] * * * is conclusively presumed prejudicial.” In our view, however, this statement is too broad if it means that a violation of Rule 8 may never be deemed harmless. When unrelated offenses committed by separate defendants are joined for trial, in violation of Rule 8(b), no further inquiry into special prejudice is required. Such a rule is justified since the introduction at the trial of one defendant of evidence which in law is relevant only to the guilt of another in itself is prejudicial, and it would be inappropriate to speculate as to the extent to which that evidence may have affected the deliberations of the jury or embarrassed the defendant in presenting his defense. But in a case where it is clear that “no prejudice from the joinder could have occurred,” we perceive no reason for ignoring the harmless error rule. b. Prejudicial joinder — Rule H In Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), we described the principal reasons why a defendant may be prejudiced by joint trial of offenses, even if proper under Rule 8: (1) he may become embarrassed or confounded in presenting separate defenses ; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his; guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A lessi tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. The District Judge weighed the possibility of such harm in ruling on appellant’s pretrial severance motion. He noted the “considerable overlap of proof” between Count 2 and Counts 3 through 7, and between Counts 8 and 9, from which he concluded that “whatever cumulative effect, if any, the presentation of proof in this case [has] would not be eliminated by severing the various counts.” And he found “no indication that defendant’s case will not be presented to and impartially considered by a trier of facts under proper instructions on the law applicable to evidence appropriately admissible.” In Drew, we recognized that the principal elements of prejudice from a joint trial are largely absent in a situation where evidence of each of the joined offenses would be admissible in a separate trial for the other, under the rules governing admissibility of “other crimes” evidence. The standard we there laid down requires a severance unless evidence of the joined offenses would be mutually admissible, or if not, the evidence is sufficiently “simple and distinct” to mitigate the danger of cumulation. The Government does not claim that all the details of its proof under Counts 1, 2, 8 and 9 would have been mutually admissible in separate trials but asserts that significant portions would properly have been received, and with this we agree. Wilfullness was an element of each of the income tax offenses charged, and evidence as to intent was of prime importance. Evidence of prior false reporting, failure to file or failure to pay taxes due is commonly received in income tax cases as bearing on intent. Such evidence need not relate to prior acts of precisely the same character, but is admissible as broadly probative of the defendant’s “attitude toward reporting and payment of taxes generally.” Moreover, the evidence relating to Counts 1 and 2 would have had particular relevance to appellant’s defense of reliance on advice of counsel as to Counts 8 and 9, as showing prior wilful deception of the Government at a time before that when counsel’s advice was sought. And we think it is also true that evidence of the offenses charged in 8 and 9 would have been admissible in a trial of 1 and 2, notwithstanding that the former evidence would relate to years subsequent to those at issue. Thus, evidence as to Counts 1 and 2 and Counts 8 and 9 would have been mutually admissible in separate trials, if not all the details that came out in the joint trial. We view this as sufficient to satisfy the Drew test, for that standard does not require that every item of evidence relating to one offense be admissible in a separate trial for the other, but rather looks in a broader sense to whether the rules relating to “other crimes” evidence have been satisfied. And, at least in the case of non-violent crimes, it is ordinarily the fact of the defendant’s having engaged in prior or subsequent criminal conduct that is likely to be damaging in the eyes of the jury rather than the details of its commission. Thus, the possibility of “criminal propensity” prejudice or cumulation was not enlarged by the joinder of 1 and 2 with 8 and 9 since the evidence of each would have beén “admissible in a separate trial for the other.” Moreover, we think that the evidence relating to the four tax counts, if not “simple,” was at least sufficiently “distinct” to enable the jury to keep it separate, thus mitigating to some degree the danger of cumulation. Apparently, it is quite common for the Government to try jointly income tax offenses relating to two or more years. Not only is this economical, in view of the liberal rules as to reciprocal admissibility already discussed, but the danger of confusion is probably less than in other types of eases since usually each offense relates to a return filed for a particular year. Though this was arguably more complex than the typical income tax case, the circumstances do not convince us that the four tax counts could not fairly be tried together. Appellant, however, argues that whatever might have been the case in a trial of the income tax counts alone, the addition of the larceny counts was fatally prejudicial. As we have previously observed, however, a trial of the income tax counts would necessarily have entailed proof of the offenses embodied in Counts 3 through 7. It is true that little if any of the evidence of the income tax offenses would have been admissible in a separate trial of the theft counts, but we need not consider whether the District Judge abused his discretion in failing to cure prejudice affecting those counts alone. Appellant also contends that he was embarrassed and confounded in presenting his defense, in that he wished to testify as to Counts 1 through 7 but to remain silent on Counts 8 and 9. In Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964), we held that such circumstances may constitute sufficient prejudice to require that a severance be granted. Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and sub-stantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury’s consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant’s silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent. It is not necessary to decide whether this invades his constitutional right to remain silent, since we think it constitutes prejudice within the meaning of Rule 14. Appellant cites Cross for the proposition that “a timely and bona fide election by the accused to testify as to some counts and not as to others requires a Rule 14 severance.” We think this reading of Cross is far too broad. Such a rule, in fact, would divest the court of all control over the matter of severance and entrust it to the defendant. The essence of our ruling in Cross was that, because of the unfavorable appearance of testifying on one charge while remaining silent on another, and the consequent pressure to testify as to all or none, the defendant may be confronted with a dilemma: whether, by remaining silent, to lose the benefit of vital testimony on one count, rather than risk the prejudice (as to either or both counts) that would result from testifying on the other. Obviously no such dilemma exists where the balance of risk and advantage in respect of testifying is substantially the same as to each count. Thus unless the “election” referred to by appellant is to be regarded as conclusive — and we think it should not be — no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — -to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Here, counsel for appellant represented to the court that appellant desired to remain silent on Counts 8 and 9 in order to avoid disclosing to the jury his disobedience of the instructions of the Majority Leader of the Senate regarding outside business activities, and because he feared prosecution under conflict of interest laws. He added that in his opinion appellant had a “legal defense” to Counts 8 and 9. No mention, however, was made of the nature and importance of the testimony he wished to give on the other counts. Moreover, our examination of appellant’s testimony at trial leaves us unconvinced that he had “ample reason not to testify on [Counts 8 and 9] * * * and would not have done so if [those counts] * * * had been tried separately.” In Cross we noted that the defendant’s testimony on Count 1 was “plainly evasive and unconvincing,” and on cross-examination he was “open to questioning concerning his generally tawdry way of life and his prior convictions.” No such harmful consequences resulted here from appellant’s decision to testify on Counts 8 and 9. It is true that appellant’s defense on those counts required him to reveal his disobedience of the instructions of his employer. But the explanation for the fee arrangement with Bromley, given by appellant in connection with Counts 8 and 9, was the same as that for the similar understanding with Tucker, which was a major part of the Government’s proof of the 1961 tax evasion charge. It would appear, therefore, that appellant could not have escaped the need to give such testimony in a separate trial of Counts 1 through 7. Nor are we persuaded by appellant’s assertion that he had a “legal defense” to Counts 8 and 9 which made his testimony on those counts superfluous. At most, his defense of reliance on advice of counsel was relevant to the mechanics of filling out Bromley’s 1963 return, involved in Count 8, and had no bearing whatever on numerous aspects of the conspiracy charged in Count 9. The Government’s evidence as to the agreement that Bromley would report appellant’s fees on his own return was strong, and would have been entirely unrebutted in the absence of a denial by appellant. And we think it is significant in this regard that appellant’s testimony concerning the instructions of the Majority Leader and his forbidden “moonlighting” activities was brought out on direct examination rather than on cross-examination by the prosecution. For these reasons, we decline to disturb appellant’s convictions for the District Court’s refusal to grant his request for separate trials. III. The Motion to Suppress In his pretrial motion to suppress, appellant claimed that the Government’s case was tainted by evidence obtained by illegal electronic eavesdropping. An affidavit attached to the motion referred to the discovery, in April 1963, of an eavesdropping device placed by the Federal Bureau of Investigation in the office of Edward Levinson, a business associate of appellant, in Las Vegas, Nevada. The affidavit stated that during the period this device was in operation appellant participated in meetings in Levin-son’s office and made numerous telephone calls to that office. The affidavit also alleged on information and belief that electronic surveillance of appellant’s conversations had taken place at several other places, including his Washington home and law office. The Government’s response denied that “any part of the evidence which forms the basis of this indictment was obtained from any improper source.” The Government further denied that it “obtained any leads to the evidence behind these charges from any improper source,” and asserted that the “information and evidence concerning the charges in the indictment was all legally obtained from independent third' party sources.” Finally, it denied that the F.B.I. had installed any eavesdropping device at appellant’s home, law office, apartment, or any of the offices and telephones used by him in the Capitol. Thereafter, the Government admitted the illegal “bugging” of Levinson’s office in Las Vegas and disclosed to the defense that four conversations were overheard in which appellant had been either present or a participant. It further disclosed that conversations of appellant had been overheard through devices installed in the office of Benjamin Sigelbaum in Miami, Florida, and the hotel suite of Fred Black in Washington. The Government turned over to the defense the logs of those conversations in which appellant was identified as a participant or as having been present. The trial judge, at the Government’s request, examined in camera all the logs of the three eavesdrop-pings in order to determine whether all of appellant’s conversations had been made available to the defense. Prior to the hearing on the motion to suppress, the Government disclosed that a fourth electronic surveillance had recorded conversations in which appellant was a participant. The transcripts of these conversations were shown to defense counsel and turned over to the court, but the Government requested that they not be made public on the ground that the national security would be adversely affected by their disclosure. The court accordingly entered an order providing for an in camera hearing on the motion to suppress these materials and forbidding public disclosure by counsel of their existence and contents. Appellant declined to pursue his motion as to these materials, insisting on his right to a public hearing. At the hearing on the motion to suppress, counsel for the Government represented that “the Government has submitted to both the Court and to the defendant all conversations which were electronically monitored at any time, at any place, with respect to any conversations in which appellant was a participant or at which he was present.” The Government submitted a memorandum from the Director of the F.B.I. to the Acting Attorney General, which stated that all logs of the surveillances referred to in appellant’s motion to suppress, and all logs of conversations “at which defendant Baker was present or in which he participated in Las Vegas, Nevada; Miami, Florida; and Washington, D. C.” had been furnished to the Department of Justice, and that “Baker’s conversations were never covered by electronic surveillance at any other time or place.” Submitted along with this memorandum was the affidavit of one of the Government trial attorneys that he had reviewed the logs furnished by the F.B.I. and had found no record of a conversation in which appellant was a participant or at which he was present except those contained in the Levinson, Sigelbaum and Black logs. As to the latter, it was stated that “they were never used by the Government to secure evidence or any leads to evidence which will be presented at the trial of this defendant.” The Government introduced other affidavits in an attempt to prove that the evidence to be introduced as to each count had been obtained from legitimate independent sources. A special agent of the Internal Revenue Service who had been in charge of the investigation of appellant’s 1961 and 1962 returns stated that the investigation had been triggered by an anonymous letter relating to appellant’s financial activities, and that evidence as to Counts 1 and 2 “was developed through third-party witness interviews and the examination, review and evaluation of appropriate bank, corporate and other financial records.” The affiant stated further that all evidence had been obtained through “normal investigative leads,” that at no time had an electronic eavesdropping device been employed, and that no evidence or leads thereto had been obtained “from any improper source.” The affidavit of one of the Government trial attorneys stated as to Counts 2 through 7 that the investigation into appellant’s financial affairs conducted by the F.B.I. and the Internal Revenue Service disclosed that in November 1962 appellant had expended more than $45,-000 in cash on his motel properties; that the investigators had been unable to ascertain the source of these funds; that a former Department of Justice employee had informed him in 1965 that appellant had recieved $100,000 in cash in the latter part of 1962 from California savings and loan companies; that in September 1965 a grand jury subpoenaed documents and heard testimony concerning the $100,000; and that none of the evidence relating to Counts 2 through 7 “was obtained from any improper source.” As to Counts 8 and 9, the chief prosecutor stated that in connection with the grand jury investigation of appellant he interviewed Wayne Bromley in February 1965; that Bromley disclosed that fees due appellant from a number of corporations had been paid by checks payable to him, and he had agreed to report the fees as his income; and that before that interview he had no knowledge or information regarding those matters. These affidavits were admitted over defense objection. Though the affiants were present and available for cross-examination, the defense declined the opportunity to question them. Also present at the hearing were the F.B.I. agents who had monitored the Levinson, Sigelbaum and Black installations, and their supervisors. They were questioned by the defense, and testified that the purpose of the eavesdropping was to uncover possible connections of Levinson and Sigelbaum with organized crime and political corruption. As to the Black surveillance, they were primarily interested in “anything that came through the microphone pertaining to Black or his contacts.” The agent testified that at the start of the investigation he was given appellant’s name as an associate of Black, and told to “listen for” appellant. Two agents monitoring the Las Vegas device were informed that appellant was an associate of Levinson. No investigation of appellant was commenced by the F.B.I. field offices which received copies of the logs of appellant’s conversations. Appellant and Black were called by the defense, and testified that appellant had a key to Black’s hotel suite and was welcome to use it at any time. Appellant testified that- he made many telephone calls during the three-month period the listening device was in operation, and used the suite for meetings. He stated that many conversations held in the Black suite during this period related to his business and financial affairs, but was unable to point to any recorded conversation as being specifically relevant to matters covered by the indictment. On the basis of this evidence, the court concluded that none of appellant’s recorded conversations had “any causal connection with, or relationship to, the indictment.” However, because of the “Government’s concession of illegality,” the court ordered suppressed all those conversations “in which the defendant was a participant,” i. e., those which had already been turned over to the defense. The court’s treatment of the remaining logs differed as between the Black surveillance on the one hand, and the Levin-son and Sigelbaum eavesdroppings on the other, Prior to the hearing, the Government made available to the defense only the logs of conversations in which appellant had been identified by the monitors as a participant or as having been present. The remaining conversations involved either persons other than appellant or, in a few instances, unidentified participants. With- respect to the Levinson and Sigelbaum devices, the court refused to suppress, or to allow the defense to examine, logs in either of these categories, on the ground that appellant would have standing to suppress only those conversations in which he had participated. The court relied on its in camera inspection of all the records in finding that appellant had not been a participant in any conversations except those turned over to the defense, and that, in any event, none of the undisclosed conversations had any “relevance to the matters contained in the indictment.” However, “[i]n view of the defendant’s special standing with respect to the Black suite,” the court ordered suppressed all conversations overheard through that device which involved unknown participants, and provided further that the logs of those conversations should be delivered to the defense. The court refused to suppress or to make available to the defense records of conversations in which the participants were identified as having been persons other than appellant. Finally, the court provided that “the defense will be given the opportunity of further inquiry during the course of the trial, out of the presence of the jury to the degree deemed reasonable by the Court, to establish whether a causal connection exists between [the suppressed] recordings and evidence sought to be offered by the Government in support.of the indictment.” We have reviewed the record and are satisfied that, as to those records which were turned over to the defense, there was ample warrant for the trial judge’s finding that the overheard conversations had no connection with the matters alleged in the indictment. We find no indication, despite appellant’s contention to that effect, that the court improperly limited the scope of the hearing by foreclosing inquiry into the use made of the illegally seized materials. To the contrary, appellant was given every opportunity to question the agents who monitored the devices as well as those who supervised the surveillance, and to trace the “bugged” material through the F.B.I. files and channels of information. Despite all this, the evidence at the hearing revealed not the slightest connection between appellant’s illegally-intercepted conversations and the charges in the indictment. Moreover, the Government introduced evidence, not controverted by appellant, that legitimate independent sources of information gave rise to the indictment and led to the proof supporting the various charges. In short, we think the pretrial hearing was both full and fair, insofar as it related to those logs that had been delivered to the defense. Appellant, however, contends that the hearing should have .embraced the rec-. ords of conversations other than those in which he was identified by the monitors as having been present or a participant. Specifically, he claims that the District Court erred in refusing to suppress and to make available for inspection by the defense (a) the logs of conversations recorded in the Levinson and Sigelbaum offices in which one of the participants was unidentified, and (b) the logs of all conversations recorded in the Black suite, whether or not appellant was present or a participant. In discussing these questions, it is important to note at the outset that no considerations of possible injury to third persons or to national security have been urged by the Government here as reasons for limiting disclosure to the defense. It simply argues that appellant would have no “standing” to suppress conversations, or evidence obtained therefrom, other than those in which he was a participant. And it contends that the in camera inspection by the court was adequate to insure that all recorded conversations in which appellant was a participant were turned over to the defense. We approach the issue as thus framed, and now proceed to consider whether appellant had standing to suppress conversations recorded in the Black suite as to which he was neither present nor a participant, and whether he should have been given an opportunity to demonstrate his standing to object to conversations recorded in the Levinson and Sigelbaum offices involving unidentified participants. Appellant argues that he had standing to suppress all conversations recorded in the Black suite, because of his “special” relationship to those premises, i. e., the fact that he had a key, was authorized by the owner to use the suite at any time, and in fact did use it frequently for telephoning and business meetings. He relies heavily on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), in which the defendant had unsuccessfully sought to suppress narcotics seized in his presence during an illegal search of a friend’s apartment, it appearing that the defendant had a key to the apartment and had occupied it on occasion. The Supreme Court unanimously reversed the conviction, holding that the defendant was a “person aggrieved by an unlawful search and seizure” within the meaning of Rule 41(e) of the Federal Rules of Criminal Procedure, and therefore had standing to suppress the illegally seized evidence. The Court stated that standing did not depend on “as extensive a property interest as was required by the courts below,” and observed that * * * it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in t