Full opinion text
PELL, Circuit Judge. This is the fourth case to reach this court as a result of the Government’s efforts to break up the drug ring of the so-called Family. The prior cases to reach this court were: United States v. Hillsman, 522 F.2d 454 (7th Cir. 1975), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410; United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976); United States v. Jeffers, 532 F.2d 1101 (7th Cir. 1976), cert. filed, 44 U.S.L.W. 3739. No purpose would be served by repeating the facts which form the basis for these cases; they are amply set forth in our prior opinions. The particular facts relevant to the issues raised on this appeal are set forth in our discussion of those issues. We further observe at this outset point that the diversity and complexity of those issues necessarily has resulted in a regretful prolixity in this opinion. This appeal, however, demonstrates once more that in a conspiracy case with numerous defendants a direct relationship is discernible between the proliferation of parties and issues. I. Adequacy of the Information Provided to the Defendants Prior to Trial The defendants complain of a general lack of discovery in this case; the Government responds that a large amount of discovery was allowed, that it complied with the district court’s orders, and that the defendants were not prejudiced by the Government’s refusal to provide all the materials that were requested. This general disagreement only reflects that the Government and the defendants are on opposite sides in the present litigation. The district court ordered the Government to reveal, inter alia, the date, the time, and the place of each overt act. It also ordered the Government to disclose the participants in the overt acts other than Government informers. The Government filed reports which purported to comply with this order and also filed much other material. The Government in answering indicated that it did not have some of the information requested, but the defendants have not argued or established that this was untrue. This court need not discuss the other information which was disclosed but will discuss the major items which the defendants argue should have been revealed to them. The defendants desired lists of witnesses from the Government. Defendant Bullock raises also this point in his supplemental brief. Defendants cannot obtain lists of Government witnesses as a matter of right, although the district court has discretionary power to order it to provide a list. United States v. Jackson, 508 F.2d 1001, 1006-07 (7th Cir. 1975). The district court did not abuse its discretion by refusing to do so in this case. The Government did not wish to reveal this information because of physical danger to witnesses as well as the possibility of threats and intimidation. The sealed materials provided to the district court by the Government in support of its contentions regarding dangers to witnesses amply establish that the Government’s fears were not unwarranted. The defendants indicate that the Government’s compliance with the court’s discovery order was incomplete. William Douglas was listed as a participant in two overt acts but not as a participant in another. The Government justifies the omission on the grounds that he was a Government informer and therefore not within the scope of the order. The defendants do not appear to contend that he was not an informer; but because his identity had been revealed, the Government does not appear to have had cause not to have indicated his participation. The Government did, nevertheless, comply with the letter of the court’s order. The Government apparently concedes that it erroneously omitted Horace Clay III as a participant in one overt act. The defendants have made no showing, however, that the Government knew that Clay was a participant or that Clay was in any way specifically prejudiced by the omission. An error in administering discovery rules is not reversible unless it is shown that the error was prejudicial to the substantial rights of the accused. United States v. Owen, 492 F.2d 1100, 1110 (5th Cir. 1974), cert. denied, 419 U.S. 965, 1019, 95 S.Ct. 227, 42 L.Ed.2d 180. The Jencks Act materials provided after the testimony of Isaac Davis contain the statement: “Pimp [Horace Clay] is not a Family member. He associated with the Family, but Davis knew of no specific duties that Clay performed.” The defendants argue that this information should have been provided prior to trial because it was exculpatory. Counsel for Clay moved for a mistrial because this information was not disclosed, but the court denied the motion. The statement is not exculpatory. The Government never has contended that the conspiracy charged was co-extensive with membership in the Family. During a pretrial conference the Government represented that there were no phone conversations recorded involving these defendants. The Jencks Act materials show that a conversation was recorded, but the defendants have not shown that any of the present defendants were parties to that conversation. Defendant Bullock in his supplemental brief makes general contentions regarding the lack of discovery as to him. Specifically, however, what he contends is that certain statements which witnesses testified Bullock made to them were not revealed prior to trial. The law in this circuit is clear that the Jencks Act forbids a district court from ordering the production of statements of Government witnesses, even if they contain statements made by defendants, prior to the time the Government witnesses testify. United States v. Feinberg, 502 F.2d 1180 (7th Cir. 1974), cert. denied, 420 U.S. 926, 95 S.Ct. 1122, 43 L.Ed.2d 396 (1975); United States v. Callahan, 534 F.2d 763 (7th Cir. 1976). II. Adequacy of the Information Provided to the Defendants During Trial The defendants argue that the court committed reversible error in administering the Jencks Act, 18 U.S.C. § 3500, and that the Government’s compliance with section 3500 was inadequate. We shall discuss the points raised seriatim. The defendants argue that the court erred on three occasions regarding notes taken by Government agents. The Jencks Act only requires notes taken by Government agents to be produced if they are a substantially verbatim transcript of a statement of a witness or if the notes have been signed or otherwise adopted or approved by a witness if the witness has not read the notes and the person taking the notes did not read them back to him. Goldberg v. United States, 425 U.S. 94, 110-11 n. 19, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976). VanBokkelen, the prosecuting attorney in this case, took notes on an interview with Isaac Davis, a Government witness. VanBokkelen stated that Davis had never seen the notes or had a chance to adopt them. The defendants’ position at trial was that it was sufficient under the Jencks Act to require production if the Government had had the opportunity to have the witness review the notes. This is clearly not the law. No one argued at trial that the notes were a verbatim transcript of the interview, as is argued in this court. In any event, the trial court examined the notes; and if they were a substantially verbatim transcript within the meaning of the act, this most likely would have been apparent. Short excerpts are not producible as verbatim transcripts. Palermo v. United States, 360 U.S. 343, 352-53, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The court did not err by refusing to order the Government to produce the notes. VanBokkelen also took notes on an interview with Esker Dodson. The notes were given to defense counsel voluntarily; but at the time they were turned over, VanBokkelen indicated that they were not § 3500 material, that the witness had not seen the notes, and that they had been made for the most part after the interview was over. We are unable to say that the court abused its discretion under these circumstances in not allowing cross-examination of Dodson on the basis of these notes. Henry Harris, a witness for the Government, testified that he had been interviewed by Special Agent Schabillion and that notes were made by Schabillion. He indicated that he had read some handwritten notes. Schabillion testified that he took notes when he interviewed Harris, that he utilized those notes for asking questions before a court reporter, and that he had destroyed the notes after they were incorporated into the formal statement prepared by the court reporter. He indicated that to the best of his recollection he had neither read the notes to Harris nor showed them to him. Harris indicated that he had told Schabillion about Patterson’s and Bullock’s activities at dayman’s Lounge and that these statements had not been incorporated into the formal statement. The court found that Schabillion had destroyed his notes in good faith, but struck Harris’ testimony with regard to Patterson because it found that the Government was negligent in not incorporating Harris’ testimony about him in the formal statement. The Government argues that it was error for the court to order Harris’ testimony against Patterson struck, but we need not decide this issue. It was not error for the court to permit the testimony to be used against the other defendants. In United States v. Hilbrich, 341 F.2d 555 (7th Cir. 1965), cert. denied, 381 U.S. 941, 85 S.Ct. 1775,14 L.Ed.2d 704, this court held that when a district court found no bad faith and no prejudice to a defendant, an FBI agent’s destruction of interview notes which had been incorporated into a formal report did not violate the Jencks Act. It has been held that nothing in the Jencks Act requires that notes made in the course of an investigation be preserved after they have served their purpose in the preparation of interview reports. United States v. Pacheo, 489 F.2d 554 (5th Cir. 1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975). We are not unmindful of the differing view of the District of Columbia Circuit. See United States v. Harrison, 173 U.S.App.D.C. 260, 524 F.2d 421 (1975). The defendants protest inaccuracies in the Jencks Act materials supplied, but the errors cited neither show bad faith on the part of the Government nor significant carelessness. Clearly, they did not prejudice the defendants. One error was in the date of witness Allen’s prior conviction for violating the Dyer Act. This error caused some confusion during the cross-examination of Allen. Also, some confusion occurred because the source of the information was the marshal’s office in South Bend, but the conviction occurred in Lafayette. The Assistant United States Attorney, however, explained the error to the jury, correcting the date as being 1970 rather than 1974. An error regarding the date another witness was convicted was corrected by the Government before the defendants’ cross-examination of the witness began; the date the witness was fingerprinted had been shown as the date on which he was convicted. Finally, confusion occurred as a result of one page of a report containing the date the report was dictated rather than the date on which it was typed. Although every effort should be made to avoid them, clerical inaccuracies will arise in many types of materials presented in judicial proceedings. It would be a very unusual case for such errors to be a cause for reversal. This is not such a case. A report on an interview by a Government agent with witness Brown was produced as Jencks Act material. The page numbers on the pages produced showed that certain pages were missing. The Government explained that the report was of a joint interview of Brown and another person who was not a witness and that the pages given the defendants were the only ones which pertained to the witness. The court accepted the Government’s explanation and declined to inspect the entire report in camera. The defendants argue that this was an abuse of discretion. In Palermo v. United States, supra, 360 U.S. at 354, 79 S.Ct. at 1225, the Supreme Court stated: [T]he Government will not produce documents clearly beyond the reach of the statute for to do so would not be responsive to the order of the court. However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. If separate reports had been prepared on the portions of the interview dealing with each person, there could be little question that the Government would only be required to produce the report pertaining to the witness. The Act contemplates that the Government will make this type of selection. We find no significant difference between the Government making this type of selection and the selection the Government made in this case. The trial court did not abuse its discretion by declining to examine the portion of the report which was not produced. The problem presented in this case is not a matter of the Government refusing to submit materials in the face of a court order; the court expressed no interest in seeing the materials. Also, situations must be distinguished where the Government declines to produce a portion of a statement of a witness as contemplated by section 3500(c). The defendants desired transcripts of testimony given in certain prior trials. The court granted their motion subject to the court reporter’s ability to prepare them. The defendants argue that they should not because of practical difficulties have been denied materials to which they had a right. The defendants also argue that they should have received the transcripts of certain witnesses’ guilty plea proceedings. This court, however, has held that a transcript of a witness’ testimony in a prior trial is not within the Jencks Act. United States v. Baker, 358 F.2d 18 (7th Cir. 1966), cert. denied, 385 U.S. 869, 87 S.Ct. 135,17 L.Ed.2d 96. The district court, therefore, was acting well within its discretion in not delaying the trial while the transcripts were prepared and in not making available transcripts which the court had found reason to seal. Such materials are normally a matter of public record and should be made available where practical. Of course, disclosure of evidence educed in a prior judicial proceeding is mandatory if that evidence would exculpate any of the present defendants. The defendants speculate in their brief that material sealed pursuant to certain docket entries is similar to that discussed above and should have been disclosed to them under the Jencks Act. We have examined the materials and find that they were not even arguably discoverable under the Jencks Act, the defendants’ speculation being incorrect. III. Selection of an Impartial Jury All of the defendants indicate that it was error for the court to deny motions to transfer the trial from Hammond due to pretrial publicity, but only Bullock develops the argument. Fed.R. Crim.P. 21(a) provides that a district court shall transfer proceedings: if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district. There is no question that the Family trials received substantial publicity; many newspaper clippings are part of the record on appeal. Substantial publicity, however, is not sufficient cause to require transfer. In this case the trial judge denied the motion to transfer and was apparently convinced that the defendants could receive a fair trial. The defendants have not shown that the trial judge abused his discretion in so ruling. The voir dire of prospective jurors did not turn up substantial prejudice. The question remains as to whether the voir dire procedure was adequate to turn up prejudice if it existed and to eliminate jurors who in some way exhibited prejudice. The defendants argue that the voir dire was unfair because they were unduly limited in the number of peremptory challenges they were allowed to exercise and because the examination of prospective jurors was inadequate. Fed.R.Crim.P. 24(b) provides that in a case such as the present one, the Government is entitled to six peremptory challenges and the defendant or defendants jointly to ten. The court is given discretion in cases involving more than one defendant to grant the defendants additional peremptory challenges and to permit them to be exercised either separately or jointly. Initially the trial court did not grant additional challenges. Five challenges were exercised jointly, but the defendants could not agree on others. The court then gave each of the twelve defendants one more challenge to be exercised separately. The Government was given no additional challenges. The trial court did not abuse its discretion by breaking the deadlock in this fashion. See United States v. Franklin, 471 F.2d 1299, 1300 (5th Cir. 1973). At best the defendants can complain that they did not receive adequate joint challenges; but at the time the twelfth juror was selected, it appears that two of the defendants had not exercised their challenges. The trial court continued to allow the defendants to confer regarding the exercise of their challenges. The defendants argue that the record does not show that they continued to exercise their challenges jointly, but this misses the significance of the Government’s argument regarding the remaining challenges. Had additional joint challenges been granted, all the defendants would have had to agree to exercise them. The two defendants who had challenges but did not exercise them could effectively have vetoed the exercise of additional joint challenges. Had they agreed, the challenges they possessed could have been exercised. The seventeen challenges which the trial court allowed were sufficient for the defendants to protect their rights. Undoubtedly the defendants would have preferred sufficient challenges for them to attempt to “stack the jury,” but this is not the purpose of peremptory challenges. The defendants argue that the scope of the trial court’s voir dire of prospective jurors was inadequate for them intelligently to exercise their peremptory challenges. In Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court indicated that while nothing in the Constitution requires Congress to grant peremptory challenges, they are nevertheless one of the important rights of the accused and impairment of that right is reversible error without the showing of prejudice. The function of the challenge is not only to eliminate extremes of partiality on both sides but also to ensure that the jurors will try the case on the basis of the evidence before them. Id. The focus regarding the adequacy of the voir dire process is exclusively on “whether the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present.” United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). The defendants must be permitted sufficient inquiry into the background and attitudes of prospective jurors to enable them to exercise intelligently their peremptory challenges. Id. at 368. Extensive pretrial publicity presents special problems. In Dellinger this court held: Id at 374. General questions, such as “Is there any reason you cannot fairly and impartially try this case?” are insufficient to protect a defendant’s rights. United States v. Lewin, 467 F.2d 1132, 1138 (7th Cir. 1972); United States v. Dellinger, supra at 375. So long as the trial judge acts within these guidelines, he has substantial discretion regarding the manner in which he conducts the voir dire examination. On review this court will not interfere with the manner in which he conducts the voir dire examination unless there has been a clear abuse of that discretion. Silverthorne v. United States, 400 F.2d 627, 638 (1st Cir. 1968), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971). [W]here pretrial publicity is of a character and extent to raise a real probability that veniremen have heard and formed opinions about the events relevant to a case, and at least where . . . the defense has brought the pretrial publicity to the court’s attention and requested voir dire inquiry, the court must make inquiry adequate to determine whether anyone has read or heard about the facts, and, if so, what the impact has been on his ability to serve as an impartial juror. [Footnote omitted.] The defendants place substantial reliance on Silverthorne, but the facts in that case were substantially different. In Silverthorne every potential juror indicated some knowledge of the case. Almost thirty-percent of those examined expressed opinions on the appellant’s guilt. Only five of the jurors were questioned individually by the court; the remainder were only questioned generally. Four of the jurors ultimately impaneled never responded to the court’s questions concerning their opinions of the case, and two of those four were never questioned on the publicity issue. The entire voir dire on the subject of publicity for the twelve jurors impaneled was sufficiently succinct that it could be set forth in the margin of the opinion on less than two pages. The selection of the jury in the present case took five days. The judge interrogated the entire panel, asking general questions, at some length and gave the attorneys an opportunity to submit additional questions to him. He then questioned each prospective juror individually, outside of the presence of the other prospective jurors and jurors who had been seated. In Dellinger we commended the practice of questioning of jurors individually, outside the presence of other jurors, although we have not required it. 472 F.2d at 376-77. The judge then gave the attorneys a chance to suggest additional questions and in many cases acted on their suggestions. The attorneys were then given a chance to challenge the prospective juror either for cause or peremptorily. During the general questioning, nineteen of the sixty-five called indicated that they had read something about the case in the newspaper. None indicated that they could not put aside what they had heard and limit their consideration to the evidence presented in the courtroom. The trial court also explored these issues with the jurors individually. The defendants in their brief discuss at some length the trial court’s questioning of various prospective jurors and argue that various portions of the questioning were inadequate. We have examined the transcript of the voir dire proceeding, giving special attention to those portions which the defendants allege were inadequate. It would serve no purpose to analyze each of these incidents in this opinion. Each of the incidents involved a prospective juror’s pri- or knowledge of the Family or this case. The defendants’ general complaint is that the court did not go sufficiently into the details of what the prospective jurors had heard. Most indicated in effect that he or she had read something about the Family in a newspaper. None indicated that he or she had any opinion as to the present defendants’ guilt or innocence, and all indicated that they understood that they must decide the case on the basis of the evidence heard in court. On some occasions the court went into more detail with prospective jurors where the person indicated more detailed knowledge. On several occasions during side-bar conferences the court indicated in response to a request that it would go into more detail about what the person being questioned had heard. The judge then asked the prospective jurors other questions which he had agreed to ask but failed to ask the additional questions regarding prior knowledge. No one called these oversights to his attention. The defendants make especially vigorous argument about the questioning of Augustine Sandlin, who became the foreman of the jury. The defendants allege that she was not examined with respect to prior knowledge, but the record does not bear out this allegation. Sandlin was asked whether she had heard or read anything pertaining to the case to which she answered, “No.” The objection the defendants raise seems to be that the question was phrased in terms of the knowledge of this case rather than knowledge of the “Family.” Generally when questioning the jurors the court had referred to the Family by name. The court had, however, indicated the nature of the charge and questioned her regarding whether she understood that it was her obligation to limit herself to what she saw and heard in the courtroom should something strike a responsive chord during the trial about something she had heard. No objection was made at the time of the questioning that the judge had not mentioned the “Family”; indeed, counsel for one of the defendants excluded her when challenging jurors on the basis of knowledge about the Family because she indicated that she had no knowledge. All the defendants joined in the challenge without contradicting him regarding Sandlin. Sandlin was challenged for cause because she had children at home, but several of the defendants declined to join in the challenge. One of the defendants requested an additional peremptory challenge to challenge her on this basis, but again no mention was made of her prior knowledge. Based on our examination of the voir dire transcript, we are satisfied that the prospective jurors were adequately examined. It is easy to point to imperfections in an appellate record, but they do not mean that a defendant’s substantial rights were affected. At trial counsel for one of the defendants requested that the judge “use [the] tendered voir dire ... in the order that they were tendered and in the exact language.” Defendants do not argue on appeal that this was required, but it appears doubtful that they would have been satisfied with less. Even assuming that all of a defendant’s tendered questions are proper, a trial judge need not ask them as tendered; his discretion is broader than that. IV. Effect of Proposed Stipulations Two defendants offered to stipulate to the existence of a conspiracy to distribute narcotics, their defense being that they were not members of that conspiracy. Counsel for one of these defendants indicated in his opening statement to the jury that a conspiracy existed. The other defendants argue that either they should have been severed or the Government should not have been permitted to introduce evidence of the conspiracy but only to introduce evidence showing the defendants’ participation. The defendants cite no authority for this novel argument other than Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which involved the admission of an extrajudicial confession and which is not in point. The essence of a stipulation is an agreement of the parties, albeit a judicially sanctioned one. See United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 (7th Cir. 1974). At most, in this case certain defendants had made a concession. There is no indication in the record that the Government agreed to the purported stipulations, and the trial judge did not view it as having done so. That the Government had to prove the facts contained in the purported stipulations, and therefore might be said in a loose sense to agree with the stipulations, does not mean that the stipulations had any binding effect on the Government since it did not enter into them. The trial court has discretion to limit the introduction of repetitive or prejudicial testimony; and had all the defendants conceded the existence of a conspiracy, undoubtedly it would have limited the Government’s evidence. All the defendants were not willing to stipulate, and it was not error for the court to allow the Government to prove its case. In any event, it does not appear that the proposed stipulations were brought to the attention of the jury; and statements of counsel in opening statements are not evidence. V. Defendants’ Motions to Suppress Evidence Defendants submit that the trial court erred in denying their motion to suppress evidence, but they utterly fail to set forth the circumstances of the searches or which items of evidence should be suppressed. The transcript of the suppression hearing was not made a part of the record. In conclusory statements the defendants indicate in their brief that they had a possessory interest in the premises searched and constructive possession of the items seized. These standing theories appear to be based on the Government’s allegations that they were members of the conspiracy; but they show no individual interest in any of the premises; and they draw no distinction between the defendants who were members of the Family’s inner circle and those defendants who conspired with the core members. The defendants rely on Brown v. United States, 411 U.S. 223, 230 n.4, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), for their constructive possession theory. In Brown the Supreme Court characterized a similar theory as doubtful before rejecting it on other grounds. We shall not adopt it in this case. We find no error in the trial court’s denial of the defendants’ motion to suppress. VI. Fifth Amendment Claims of Unindicted Co-conspirators During the defendant Davidson’s case, the defense called unindicted co-conspirators Garland Jeffers and Cecelia Willis as witnesses for the defense. Counsel informed the court outside the presence of the jury that the witnesses’ attorneys had instructed them to refuse to testify and claim their Fifth Amendment privilege. The defense desired to call the witnesses before the jury to assert their Fifth Amendment rights, but the trial court would not allow this. Jeffers and Willis were called outside the presence of the jury, and both indicated their intention to refuse to testify when questioned by the court. On this appeal the defendants maintain their position that they should have been allowed to call the witnesses before the jury, but they concede that the circuits which have ruled on this issue have ruled to the contrary. United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536 (1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). The trial court correctly applied the law by not allowing the witnesses to claim the privilege in front of the jury. The defendants have no right to have the jury draw inferences from the witnesses’ exercise of this right. On this appeal the defendants argue that the court erred by not exploring the basis of the witnesses’ claims of privilege outside the presence of the jury to determine if the witnesses’ fear was well-founded. At trial no one challenged the legitimacy of the witnesses’ fear of self-incrimination or indicated that the claim had to be evaluated on a question by question basis. The trial judge noted that one of the witnesses had a case pending and was going to trial and that the other had an appeal pending. It is clear that a judge in determining the reasonableness of a claim of privilege may take into account facts which are not actually in evidence. Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The defendants can hardly claim that the trial judge did not have substantial background information on which to base his evaluation of the self-incrimination claims in light of their claims that he should have disqualified himself because of his extensive knowledge of the Family’s activities obtained during other trials. See Part XI infra. Under these circumstances, the trial judge did not err by accepting the claims of privilege without a hearing. VII. References to Earlier Convictions The defendants argue that the trial court erred in not granting a mistrial when the Government’s first witness made certain statements which the defendants argue were improper. Before trial the court ruled that the Government could not bring up the verdict in the Lafayette trial unless the defense opened the door. During the discussion which preceded the entry of the court’s order, the Government indicated that it had no intention of attempting to introduce in its case in chief the convictions in Lafayette but noted the problem that some of its witnesses were not Government agents who could be instructed not to mention certain things. The Government indicated that it would attempt to avoid getting into areas concerning people being in jail and similar references as to dates but that if defendants objected to such questioning, all it could do was to ask a broad question. The judge noted some doubts as to whether Lafayette could be kept out of the case but indicated that he would do the best he could “consistent with [his] obligations.” During the testimony of Isaac Davis, the first witness called by the Government, Government counsel asked: Q. Now, did there come an occasion when you were in Chicago with Garland Jeffers after March of 1974, that you were present during a conversation between Garland Jeffers after March of 1974, that you were present during a conversation between Garland Jeffers and Tyrone Harris? A. Yes, sir. Q. At that conversation who all was present, without saying where it took place? A. Me, LeRoy Williams and Garland Jeffers, and Richie Dean Jeffers and Herman Harris. Q. Without relating the details concerning certain individuals, would you relate what Jeffers told Harris concerning The Family itself? Several objections were interposed, including objections that the questions were leading. The court, after a brief discussion, overruled the objections. Government counsel then asked the witness, “First, Mr. Davis, do you remember the conversation I am referring to?” Counsel for defendant Davidson then interposed the question: “Could we get a date?” After a brief discussion, the jury was excused and the court discussed the matter at some length with counsel. The conversation in question took place in Cook County Jail shortly after Garland Jeffers had been convicted, in July of 1974, of conspiracy to distribute narcotics. He had been indicted in March of 1974. Government counsel explained that he was trying by use of leading questions to avoid references to these facts and references to statements made during the conversations which were prejudicial to the defendants. A further objection was made that the conversation occurred after the conspiracy had ended and therefore was inadmissible. The Government indicated that it could show that the conspiracy continued through September of 1974 and that Garland Jeffers continued to give orders from the Cook County Jail. The witness was then brought back into court as was the jury. The Government questioned the witness about other matters and then returned to the subject of the conversation. Counsel for defendant Davidson objected on the ground of relevancy, on the ground that the declarant and the defendants had not been shown to be members of a conspiracy so as to invoke the co-conspirator exception to the hearsay rule, and on the ground that the statement was a post-conspiracy statement. The court then asked: The Court: What is the time? Mr. Van Bokkelen [Government counsel]: After March of 1974. The Court: What time? Fix the time, Mr. Van Bokkelen. Mr. Van Bokkelen: Approximately when would this have been? A. Right after they were convicted, about in July. The Court: What year? Mr. Van Bokkelen: What year? A. 1974. The court then overruled the objections subject to the answers being connected up. Government counsel then continued: Q. Now at that time, in reference just to any conversation that may have taken place concerning Family business, what was said at that time in the presence of those people? A. Well, it was right after they had been convicted in Lafayette, he was telling them about, to keep the business going, certain peoples who had testified against him, he wanted them killed. After requests from counsel, the jury was excused. All the defendants joined in a motion for mistrial based on the answer, urging material prejudice to the defendants and violation of the motion in limine to exclude reference to the convictions in Lafayette. A lengthy discussion then ensued. The position of Government counsel was that he had done everything he could to avoid the references to the conviction but that it had become difficult with all the objections. He further indicated that he had instructed the witness not to go into this area but that it was difficult since the witness was not an agent; that the reference to killing was in line with other testimony; that the only issue was the mention of convictions; that the statement of the witness indicated little more than what one of the defendants’ counsel had indicated in his opening statement; that there was no objection when earlier there was a reference to convictions without the reference to killing; and that the defendants had invited the response by their objections. The position of the defendants was that the answer was prejudicial regardless of the Government’s intent and that one counsel’s opening statement did not open the door for all. Several of the defendants moved for severance in the alternative to a mistrial. The court indicated that it understood the Government’s problem and that it did not think that Government counsel had intentionally or even negligently committed error. The court indicated that it would, nevertheless, strike the answer and admonish the jury to disregard it. It did so. On this appeal the defendants argue that the trial court erred in not declaring a mistrial because the evidence solicited1 was hearsay and was introduced before the fact of a conspiracy was established, because the witness had violated the order of the court to refrain from referring to the Lafayette trial, and because the evidence was of a post-conspiracy statement and hence was inadmissible. The defendants’ first two arguments are clearly without merit and require little comment. The order of proof at trial is a matter almost wholly within the discretion of the trial court. The court did not err by allowing testimony to be introduced subject to the establishment of independent facts connecting appellants with a conspiracy. Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970). The pretrial order was directed primarily to the Government, and the trial court did not believe that the Government had committed error. The Government had informed both the court and the defendants that it would have difficulty in controlling the witness unless allowed to ask leading questions and avoid specific references to dates and places, but various defendants persisted in objecting. The Government must work with the witnesses who are available, and the trial court applied its ruling in a practical manner. It did not abuse its discretion in doing so. The defendants’ third argument raises a more difficult question. The hearsay rule normally precludes the introduction of out of court statements made by one person as evidence against another; but where a statement is made by one co-conspirator in furtherance of an ongoing conspiracy, it may be introduced as evidence against other conspirators. Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 93 L.Ed. 790 (1949). A statement made after a conspiracy has ended is not admissible. Id. at 442, 69 S.Ct. 716. Defendants argue that the conspiracy ended prior to the conversation in July because the last overt act charged was in June. They argue that in any event Garland Jeffers could no longer have been a part of the conspiracy because he had been arrested, tried, convicted, and was in jail. In Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946), the Supreme Court held that statements of certain conspirators were not admissible against others because, even though the indictment charged that the conspiracy continued through the date of the indictment, the last overt act averred and proved occurred before the statements were made. In the present case evidence of overt acts was presented from which the jury could have found that the conspiracy continued through August or September. The question, therefore, is whether the failure to allege such overt acts in the indictment precludes the Government from showing the conspiracy continued beyond the last overt act alleged. We hold that it does not. Evidence of overt acts which occurred after a conspiracy was formed and which were related to the object of the conspiracy is admissible regardless of whether the overt acts are charged in the indictment. United States v. Clay, 495 F.2d 700, 706 (7th Cir. 1974), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164. Indeed, it has been held that a conviction for conspiracy may rest on proof of an overt act not charged in the indictment. Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir. 1967), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478. It is not necessary for the Government to prove each overt act alleged. United States v. Vittoria, 284 F.2d 451 (7th Cir. 1960), overruled as to another ground, United States v. White, 405 F.2d 838, 848 n.16 (7th Cir. 1969) (en banc), rev’d on that ground, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 483 (1971). From these principles it is clear that the determination of a conspiracy’s duration for purposes of the hearsay exception must depend on what the Government is able to prove. Statements are not admissible if made after the last overt act proved but before an overt act averred but not proved; statements are admissible if made before the last overt act proved regardless of whether the overt act was averred. The question of whether Garland Jeffers remained a conspirator after his arrest still must be answered. It is generally held that once established a partnership in crime continues until fruition or some act is taken to disavow it or to defeat its purpose. Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The arrest or incarceration of a conspirator may constitute a withdrawal for a conspirator, but it does not as a matter of law. United States v. Agueci, 310 F.2d 817, 838-39 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). The Third Circuit recently faced a similar argument under similar circumstances. In United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84, the defendants argued that it was improper to allow the introduction of evidence regarding a conversation which took place while the defendant was in jail. The court held that a conspiracy for the purpose of distributing heroin did not necessarily end upon the arrest of co-conspirators. The court relied on statements made by the defendant while in jail to support its conclusion that the conspiracy had not ended. Id. at 47. Based on the record as discussed above, we conclude that Garland Jeffers did not disassociate himself from the conspiracy after his arrest and conviction and that therefore evidence of the conversation was properly admitted into evidence. Evidence of the Lafayette convictions was not, of course, relevant to the present case; and the trial court acted properly in striking it from the record. The evidence was not so prejudicial, however, as to require a mistrial. VIII. Evidence of an Assault on Federal Agents Overt Act 18 of the indictment read: On or about the 8th day of February, 1974, in Gary, Indiana, in the Northern District of Indiana, defendant JAMES HILLSMAN and unindicted co-conspirators CLINTON BUSH and JIMMIE MERRITT and others unknown to the Grand Jury assaulted Special Agent Kenneth Rhodes of the Drug Enforcement Administration while the said officer was engaged in the performance of his official duties and in the investigation of the operations of “The Family” organization. The defendants argue that the trial court erred by not striking this overt act from the indictment, by permitting evidence to be introduced regarding it, and by instructing the jury on the crime of assaulting a federal officer, these instructions compounding the prejudice by unduly highlighting this one overt act. According to the defendants, the evidence did not show that the assault was perpetrated in furtherance of the alleged conspiracy but was introduced to prejudice the defendants by bringing violence before the jury. The defendants’ legal arguments on this point might have merit if the record did not connect the assault with the conspiracy; but contrary to defendants’ protestations, there is ample support in the record on which the jury could have concluded that the assault took place to further the interests of the Family. Special Agent Rhodes of the Drug Enforcement Administration testified that he went to the funeral of VanLott III to do surveillance on the Family. VanLott III had been a member of the Family. Special Agent Munson was there taking pictures with a video camera. Rhodes testified that he directed Munson to leave because he detected a hostile attitude. William Hanyard approached a “gold-looking” car and talked with a person he knew to be a man of status in the Family and whom he later learned to have been Nathaniel Jeffers. Hanyard then went across the street and struck Munson; and according to Rhodes, started to do so again. Rhodes then drew his weapon; and as he was getting into combat position was struck from behind. His weapon fired striking Hanyard and killing a bystander. According to his testimony, immediately after that he identified himself as a federal agent to anyone within hearing distance and particularly to Nathaniel Jeffers. As Rhodes was driving away, shots were fired at his car. Nathaniel Jeffers was an unindicted co-conspirator in the present case. For a fuller description of the events of this funeral, see United States v. Hillsman, 522 F.2d 454 (7th Cir. 1975), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410. In light of this testimony, we find that the trial court did not err in permitting the jury to consider the evidence relating to Overt Act 18. IX. Cross-examination on Sexual Relationships Lois Brown was a witness for the Government. During cross-examination, counsel for defendant Davidson began to question Brown concerning her sister. Government counsel objected, and a discussion concerning the proper scope of cross-examination ensued outside the hearing of the jury. Although he was cross-examining, defendant’s counsel made what he termed an offer of proof: I intend to show that not only was her sister Candy an addict, but the witness was an addict; not only was her sister Candy a prostitute, but the witness was, and further, she and her sister together put on sexual shows. . For the entire period, your Honor, I would like to make an offer to prove that if I were allowed to ask this witness the questions she would answer as follows, that she was and has been continuously a prostitute and a sexual show giver in conjunction with her sister; and she has at one time or another sold herself to almost everybody she has testified with regard to; that in fact, her only and sole connection with this matter in 1973 and 1974 was as a prostitute and procurer of other women, primarily her sister Candy, for various members and people with whom or about who she testified. The court permitted counsel to explore the witness’ addiction but denied him the right to go into the other matters on the grounds that the request went well beyond the scope of Fed.R.Evid. 607, 608, 609, and 408. On appeal, the defendants urge that the trial court’s ruling was incorrect. They argue: It is important to note that the purpose of the intended cross examination was not to impeach the witness’ credibility by showing she participated in such acts, rather appellants were seeking to elicit the defendants’ relationship with the witness in order to show the bias of the witness against them, with the consequent effect on the witness’ veracity. Evidence of prior misconduct which did not result in a conviction generally may not be introduced to show a witness’ bad character. Such evidence may be introduced for the purpose of showing that a witness has cause to be biased. United States v. Marzano, 537 F.2d 257 (7th Cir. 1976). We do not disagree with the cases cited by the defendants which indicate that no special rule applies when the conduct involved is of a sexual nature. See, e. g., Thompkins v. United States, 236 A.2d 443, 25 A.L.R.3d 532 (D.C.App.1967). The defendants’ position cannot be sustained, however, for two reasons. First, nowhere in the record did anyone indicate that the purpose of introducing the evidence was to show bias. Counsel merely indicated, “It goes to the credibility of the witness.” Second, the defendants neither indicated to the trial court nor to us how the witness’ prior conduct would create bias. We do not find that a sexual relationship will per se give rise to bias, either favorable or unfavorable. The trial court did not commit error by refusing to allow counsel for defendant Davidson to cross-examine Lois Brown regarding her sexual relationships or other societally undesirable characteristics. X. Competency of a Witness to Testify The defendants argue that Esker Dodson was incompetent to testify as a matter of law and that his testimony should have been stricken. Dodson admitted substantial use of heroin over a period of years and having had a “fix” within two days of his testimony. After his first day of testimony, Dodson was taken to a hospital to receive medication. The following morning the Government represented that Dodson had received 50 mg. of Demerol. It was later brought out by the defendants that this information was incorrect and that Dodson had received 75 mg. of Demerol and 50 mg. of Phenergon. On multiple' occasions the district judge asked Dodson to speak up; and apparently on several occasions during the testimony, Dodson was observed to be bouncing or nodding. Dr. Ziporyn, an expert witness for the defendants, testified that Demerol was for pain relief; that the initial dosage is generally 50 mg. but that it can be raised to 75 mg. or in an extreme case to 100 mg.; that 75 mg. is an acceptable but heavy dosage; that a person who had received the dosages that Dodson had received would at the time he was testifying experience some clouding of consciousness and difficulty in pinpointing accurate thoughts; that it is generally figured that an individual will have difficulty in adequate cerebration for about eighteen hours after receiving such medication; and that an individual’s lack of awareness of whether it was January or February, a lack which Dodson had shown, would tend to indicate that there was definite clouding. On cross-examination Dr. Ziporyn admitted that to know the type of effect an individual was having would require actual observation. In United States ex rel. Lemon v. Pate, 427 F.2d 1010 (7th Cir. 1970), this court discussed the question of whether a witness’ condition as an addict rendered him incompetent to testify or whether his condition merely went to his credibility. The witness had taken narcotics the day of trial before his testimony. The court held that the witness’ condition was a matter of credibility since the witness had appeared alert and the trial judge had the opportunity to observe his physical appearance, manner of articulation, and continuity of testimony. The court emphasized that his testimony was substantially corroborated by the testimony of other witnesses. Counsel had made no request for the court to conduct a hearing on the witness’ competence. Lemon controls our result in this case. The arguments of the defendants regarding Dodson’s competence are largely based on his demeanor. After the first day of Dodson’s testimony, a discussion occurred concerning his condition: Mr. Eisenberg: . . . . This guy is flying now. Mr. Van Bokkelen: That is your opinion. Mr. Eisenberg: It is everybody’s opinion. The Court: It is not my opinion. The facts necessary for the evaluation of the witness’ competency were peculiarly within the knowledge of the trial judge. He had the opportunity to observe the witness; we have not. Counsel did not request a hearing regarding the witness’ competence; and indeed, the witness’ competence does not appear to have been directly challenged before the trial court. Unfortunately, Dodson’s testimony was not corroborated to the degree the witness’ was in Lemon, but this does not necessarily change the result. Dodson’s condition was a matter of credibility for evaluation by the jury. There was evidence indicating his addiction and the jury was provided with substantial expert testimony on how to evaluate an addict’s testimony, including testimony that an addict’s truthfulness or trustworthiness was “zero”; that such a person would be more likely than a nonaddict to lie in return for an offer of immunity, reduction of sentence, dismissal of a pending charge, or real or imagined revenge; that such a person would fabricate a story to achieve his own ends; and that while such a person would remember events which occurred while he was under the influence of narcotics, his impressions of the events might be totally false. XI. Disqualification of the Trial Judge Prior to trial the attorney for defendant Harris moved that the trial judge disqualify himself because other “Family” cases had been tried before him and because he had made various rulings and comments concerning these trials. The appellants urge that Judge Sharp erred in denying the motion. In addition they urge that Judge Sharp should have disqualified himself because he had examined the presentence reports of defendant Hillsman when he was sentenced for his participation on the substantive offense shown in Overt Act 18 and defendant Richie Dean Jeffers when she was before him on an unrelated matter. In United States v. Jeffers, supra, 532 F.2d 1101, this court rejected an almost identical argument regarding earlier trials when it was raised by Garland Jeffers. We need not lengthen this opinion by discussing the issue again at this time other than to reaffirm that a judge’s exposure to evidence presented at an earlier trial involving the same person does not per se create the kind of bias or prejudice which requires disqualification. The question of the presentence reports was not present in Jeffers. The issue does not appear to have been presented to the trial court, so this court might properly consider the issue waived. We have, nevertheless, considered it and find defendants’ argument without merit. The defendants rely on Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969), and United States v. Small, 472 F.2d 818 (3d Cir. 1972). In Gregg the Supreme Court held that submission of a presentence report to the court before the time specified in Fed.R.Crim.P. 32 is error of the clearest kind. The Court did not reverse the defendant’s conviction in the case because there was no direct evidence that the judge had read the presentence report before the jury returned its verdict and because the judge did not communicate with the jury after it had received the report, the jury having already retired. The strict terms of the rule were not violated in this case. Rule 32(c)(1) provides that the report shall not be submitted to the court unless the defendant has pleaded guilty or nolo contendere or has been found guilty. There is no evidence indicating that the trial judge saw the reports before the defendants had been convicted in the prior cases; that is not the defendants’ argument. They argue that the trial judge’s knowledge of the reports is sufficient to disqualify him. In Small the Third Circuit discussed this possibility. It did not decide the issue but reversed on other grounds. It noted that in Gregg the Supreme Court was not considering the retrial context or similar circumstances when a judge might see a presentence report before trying a defendant. One factor in the Supreme Court’s reasoning in Gregg was that there was no reason for the trial court to see the report before the occasion to sentence arises. Gregg does not require reversal in this case. Rule 32 has not been violated so the defendants cannot claim its benefits. Reversal would only be required if their trial offended due process or federal statute. In similar contexts, this court and others have held that trial by a judge with knowledge of a presentence report is not cause for reversal. United States v. Crovedi, 467 F.2d 1032, 1038 (7th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1510, 36 L.Ed.2d 189 (1973); United States v. Foddrell, 523 F.2d 86 (2d Cir. 1975), cert. denied, 423 U.S. 950, 96 S.Ct. 370, 46 L.Ed.2d 286 (1976). XII. Sufficiency of the Evidence Against Patterson and Bullock Defendant Patterson argues that the court erred in denying his motions for judgment of acquittal, which he made at several points during the trial, because the Government did not introduce sufficient evidence to sustain a conviction. Defendant Bullock also challenges the sufficiency of the evidence against him. The other defendants do not challenge the sufficiency of the evidence. This court must sustain the jury’s verdict if there was substantial evidence, taking the view most favorable to the Government, to support it. This court need not determine whether the evidence establishes guilt beyond a reasonable doubt but only must determine whether the evidence would permit the triers of fact to find the defendant guilty beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). At the close of the Government’s case in chief, the court indicated that a jury question had been presented against all the defendants except possibly Patterson and Bullock and requested an oral summary of the evidence against them. After some discussion, the court denied the motions of all the defendants except Patterson and took Patterson’s motion under advisement overnight. The next morning, relying on language from United States v. Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975), the court overruled Patterson’s motion. Patterson argues that the trial judge applied too lax a standard, relying on Braasch, and allowed the case to go to the jury on evidence which was insufficient for it to find guilt beyond a reasonable doubt. In Braasch this court stated: “[Ojnce the conspiracy was established — the evidence of which was overwhelming — slight evidence is sufficient to connect a particular participant.” 505 F.2d at 148. Language similar to this appears in many cases; but it should not be construed to mean that once a conspiracy has been established, the evidence needed to sustain a jury verdict or to present a jury question regarding an individual’s participation in a conspiracy is any less than that needed to uphold a jury’s finding that a person participated in any other crime. Perhaps the best exposition of the doctrine as this panel understands it appears in Phelps v. United States, 160 F.2d 858, 867-68 (8th Cir. 1947), cert. denied, 334 U.S. 860, 68 S.Ct. 1525, 92 L.Ed. 1780 (1948): Once there is satisfactory proof that a conspiracy has been formed, the question of a particular defendant’s connection with it may be merely a matter of wh