Full opinion text
RONEY, Circuit Judge: In this appeal we consider challenges to convictions for conspiracy and substantive crimes under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C.A. § 1961 et seq., and various federally proscribed acts of racketeering. The six defendants before us were among thirteen charged in a twelve-count indictment with offenses ranging over a period between May 1975 and May 1976. Following a lengthy jury trial, the six defendants were convicted on almost every count in which they had been charged. Having carefully considered the extensive trial record and the many and diverse legal arguments made on appeal, the Court concludes the convictions of defendants Diecidue, Boni and Davis must be reversed and the convictions of Antone, Gispert and Miller must be affirmed. Each defendant has been separately represented on this appeal and each has filed a separate brief. Each counsel has appropriately sought for his client the advantage of any relevant arguments made by other counsel. Each has also argued issues applicable to his client alone. In this opinion, after briefly stating the facts adduced at trial, we treat several issues which could affect all of the convictions presented for review. We find that none of these arguments merits reversal of any conviction. We then discuss additional issues as they focus on each defendant, affirming and reversing as we proceed. Background Although the facts are treated in greater detail herein in conjunction with discussion of specific issues raised on appeal, an overview of the conspiracy’s activities in roughly chronological order will be useful. The record evidence relevant to the issues on appeal, viewed most favorably to the Government, Giasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), describes an enterprise whose membership grew as its criminal interests diversified. The enterprise was founded, the Government proposed, by defendant Diecidue who sought protection of his vending machine business through the murder of a new competitor, Manuel Garcia. Diecidue supposedly recruited defendants Antone and Gispert in April or May of 1975 to carry out the crime. In June Antone brought Marlow Haskew into the enterprise to drive for Gispert while he attempted to shoot Garcia. Gispert obtained the shotgun for the attempt and told Haskew that Diecidue was to pay the three $20,000 for the killing. Twice Haskew and Gispert drove to Garcia’s hotel with a loaded shotgun but failed to locate him. The next attempt on Garcia’s life was made with explosives. In May Gispert had met with defendant Miller and Willie Noriega and had purchased a gun from Miller. At that meeting Miller asked Noriega to obtain explosives and suggested he deal with Gispert through Miller so Miller could hike up the price and make some money. Noriega was never able to supply the requested explosives. During the last week of June Gispert and Haskew drove to a service plaza on the highway from Tampa to Miami where they picked up dynamite from defendant Boni. The dynamite was transported back to Antone’s house where Antone constructed a triggering device and showed Gispert and Haskew how to attach the dynamite to it. On June 28 Antone, Gispert and Haskew attached the bomb to Garcia’s car. The device exploded, destroying the car and injuring Garcia. Gispert led Garcia to believe that the attempt on his life had been ordered by Cesar Rodriguez, a Tampa bar owner, and Garcia, in turn, offered $20,000 for Rodriguez’ murder. Gispert also obtained murder contracts from codefendant Victor Acosta on the lives of Bernard Dempsey, a former U. S. Attorney, and Richard Cloud, a former Tampa police officer. In July Gispert and Haskew drove to Miami where they delivered six ounces of cocaine, obtained from Acosta, to Boni. Gispert, Haskew and Antone divided the profits. Later in July the same trio decided to carry out the Rodriguez murder with explosives. Gispert procured the dynamite through defendant Davis, Antone constructed a triggering device and Gispert and Haskew placed the bomb. When the bomb detonated the car was destroyed and the driver, a family friend, was injured. Gispert and Haskew made several unsuccessful attempts to locate and kill Dempsey in August and September. Acosta had issued the contract on Dempsey’s life because, as a U. S. Attorney, Dempsey had prosecuted several organized crime figures and Acosta owed him over $40,000 in legal fees for work done as a defense attorney after leaving the prosecutor’s office. In September the enterprise gained another member when Haskew assisted Benjamin Gilford to escape from prison. Gil-ford agreed to serve as triggerman on five murder contracts issued by Acosta. Dempsey, Cloud and Rodriguez were identified as three of the intended victims. Later in September Haskew and Gilford unsuccessfully attempted to murder Rodriguez with a sawed-off shotgun during a car chase through Tampa. In September and October Haskew and Gilford, joined on one occasion by Miller, committed several robberies. The proceeds were used to finance enterprise activities or support the participants. The enterprise obtained equipment to carry out the contract murders in September and October. Antone and Haskew purchased a van which was modified into an “assassination” vehicle by cutting shotgun slits in the sides. Antone also gave Haskew a .32 caliber automatic pistol and silencer which he had obtained from Acosta. Gispert had given the weapon to Acosta to procure a silencer. Miller bought the ammunition for the weapon and he and Haskew test-fired it. Richard Cloud was targeted for murder because, as a Tampa policeman, he had harassed Acosta in his drug business and was expected to testify in October at the trial of a close friend of Acosta’s. On October 23 Haskew and Gilford drove to Cloud’s home, and while Haskew circled the block, Gilford fatally shot Cloud with the silenced .32 caliber pistol. After the murder Haskew traveled to Miami where he discussed obtaining counterfeit money with Harvey Davenport and George DeFeis, who were also indicted as coconspirators in the enterprise. In November Haskew made another trip to Miami and stole a kilogram of cocaine, “speed” capsules, a coin collection and jewelry from DeFeis. The cocaine and a diamond ring were turned over to Antone, who sold the cocaine to Acosta. Another ring, the coins and speed were given to Miller. In December Haskew purchased from Davenport $40,000 in counterfeit bills, some of which Haskew passed in Florida, New Jersey and Pennsylvania. Miller attempted to sell some of the bills and used a counterfeit hundred dollar bill to purchase cologne in a Clearwater department store. In January 1976 Miller, according to Haskew’s testimony, asked Haskew to get him a weapon with a silencer so that he and Scarface Rivera could make a hit on a man living in a trailer who intended to testify against them. Haskew was never able to supply the weapon. In February Gilford attempted to recruit another participant to complete remaining murder contracts and was subsequently arrested. Haskew was arrested shortly thereafter. Both confessed, setting forth the details of the conspiracy. Sufficiency of Indictment Defendants raise several objections to Count One of the indictment in which a RICO conspiracy is charged. Section 1962(d) of the Act makes unlawful a conspiracy to violate § 1962(c) which in turn provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C.A. § 1962(c). Despite defendants’ arguments reflecting a tireless search for ambiguity and omission in the indictment, we are convinced that Count One adequately alleged all essential elements of a § 1962(d) offense and fairly informed defendants of the charges against them. Defendants contend first that the enterprise whose affairs they allegedly conspired to conduct was not one within the scope of the Act. The enterprise, they assert, must be an identifiable group with finite goals and an existence separable from the pattern of racketeering activity to which some or all of its members ultimately resort. “[A] bunch of crooks,” defendants argue, “who decide to do whatever comes along, criminal or otherwise, in order to make a 'buck,’ is . utterly removed from anything Congress had in mind.” Defendants fail to recognize the breadth of the Act’s definition of “enterprise” and its expansive interpretation and application by this Court. “Enterprise” is defined to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C.A. § 1961(4). This Court has already rejected the contention that § 1961(4) does not encompass groups whose only purpose is to engage in illegal behavior. See, e. g., United States v. Elliott, 571 F.2d 880, 897 n.17 (5th Cir. 1978), cert. denied, 489 U.S. 958, 99 S.Ct. 849, 58 L.Ed.2d 844 (1979). Furthermore, nothing in the Act or in the opinions by which this Court has interpreted it suggests that the enterprise must have been functioning and conducting operations in pursuit of a common goal prior to its involvement in racketeering activities. Similar objections were recently raised in United States v. Elliott, supra, in which six defendants were charged in essence with conspiring to conduct the affairs of an enterprise designed to commit thefts, fence stolen property, traffic in drugs and obstruct justice. The Court concluded that such an informal and loosely connected “myriopod criminal network” was indeed within the scope of the Act. 571 F.2d at 899. See also United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978), aff’d en banc, 590 F.2d 1379 (1979) (conspiracy to operate an illegal scheme to obtain money, marijuana and cocaine through extortion, kidnappings and robberies); United States v. McLaurin, 557 F.2d 1064 (5th Cir. 1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978) (conspiracy to conduct affairs of prostitution ring through several acts of prohibited interstate travel); United States v. Morris, 532 F.2d 436, 442 (5th Cir. 1976) (indictment alleged sufficient enterprise by describing defendants “ ‘a group . associated in fact to defraud in illegal card games persons who had travelled to . Nevada.’ ”). We conclude that Count One of the indictment properly charged a conspiracy to conduct the affairs of a § 1961(4) enterprise through racketeering activities, the nature of which was precisely stated, and adequately informed defendants that the enterprise whose affairs they conspired to conduct was one which they, by their association, had formed. See United States v. Hawes, 629 F.2d 472, 479 (5th Cir. 1976). That the formation of the enterprise and the conception of the conspiracy may have occurred simultaneously in no way detracts from the Act’s applicability. Defendants further allege that Count One is duplicitous by charging more than one conspiracy. Although defendants claim to find in the allegations of Count One separate conspiracies to form an enterprise and conduct its affairs through a pattern of racketeering activity, to join an existing enterprise, to engage in the purchase and sale of cocaine, to possess and distribute counterfeit currency and to possess and attempt to sell stolen U. S. Treasury bills, Count One reasonably describes only one conspiracy, the conspiracy announced in paragraph one to violate 18 U.S.C.A. § 1962(c). Section 1962(c) prohibits neither the forming of an enterprise nor the joining of one. Neither does it reach isolated criminal acts such as drug sales or possession of stolen or counterfeit money. Conspiracy to violate § 1962(c) can be only conspiracy to conduct and participate in the conduct of an enterprise’s affairs through a pattern of racketeering activities. The allegations addressed to the various substantive offenses committed as part of the conspiracy are merely descriptive of the single overall agreement and do not render the count duplicitous. See Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 87 L.Ed. 23 (1942). Defendants also attack Count One for failure adequately to allege knowledge, a material element in the crime charged. See United States v. Malatesta, 583 F.2d at 759-60. They suggest the indictment should have alleged conspiracy to perform § 1962(c) offenses “knowing of the enterprise” and commission of each of the recited offenses which describe the pattern of racketeering activity “with knowledge that the conduct was intended to be part of a pattern of racketeering.” Paragraph one of the count alleges defendants “willfully and knowingly” conspired to violate § 1962(c). Each of the substantive offenses was introduced as “a further part of the conspiracy” and most appeared again in Count One’s catalogue of thirty overt acts alleged to have been committed “in furtherance of the said conspiracy and to effect the objects thereof.” Taken as a whole, the allegations of Count One sufficiently charge defendants with specific intent to commit the described offense. In United States v. Purvis, 580 F.2d 853, 859 (5th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979), this Court observed: “Conspiracy” incorporates willfulness and specific intent. As the Supreme Court stated in Frohwerk v. United States [249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561], “intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.” [citation omitted]. Defendants assert that the indictment failed to charge offenses under 18 U.S.C.A. § 1962 because an essential element of the offenses, effect of the enterprise’s activities on interstate commerce, was not alleged with sufficient specificity. Rule 7, Federal Rules of Criminal Procedure, states: “The indictment . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The indictment must inform defendants of the nature and cause of the accusation to permit preparation of a defense and must equip defendants with sufficient facts to plead former jeopardy in a subsequent prosecution for the same offense. 8 Moore’s Federal Practice ¶ 7.04 at 7-15 (rev. 2d ed. 1978); United States v. Contris, 592 F.2d 893 (5th Cir. 1979). An indictment which specifically states all elements of the offense also ensures that the grand jury charged such an offense and that critical parts of the charged offense were not subsequently contributed by the prosecutor alone. See Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963); United States v. Nance, 174 U.S.App.D.C. 472, 533 F.2d 699 (D.C.Cir. 1976). Defendants do not contend that insufficient proof of effect on interstate commerce was adduced at trial. The Government’s case suggested interstate commerce was affected by the use of interstate communications facilities to make long distance phone calls, destruction of one or more automobiles used in activities affecting interstate commerce, receipt of dynamite in Florida manufactured outside the state, and possession of cocaine, a federally controlled substance. Defendants complain, rather, that effect on interstate commerce was alleged in conclusory terms, the generality of which gave the Government unfettered discretion in choosing facts with which to prove it at trial. Clearly the indictment does not subject defendants to the danger of being retried for the same participation with the same enterprise on merely a different theory of effect on interstate commerce. Nor can we conclude that defendants were hampered in the preparation of their defenses or that the grand jury might not have charged the offenses of which defendants were convicted. The indictment charged interstate commerce effect in the RICO conspiracy and substantive offenses in the language of the statute itself, a practice which generally guarantees sufficiency if all required elements are included in the statutory language. United States v. Davis, 592 F.2d 1325,1328 (5th Cir. 1979). Where the statutory definition contains generic terms, however, the indictment may not simply recite the generic terms but “must state the species,—it must descend to particulars.” United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875). In United States v. Nance, supra, for example, convictions on false pretenses counts were vacated because the indictment failed to set forth any of the false representations made. The court observed, “the United States Attorney would have a free hand to insert the vital part of the indictment without reference to the grand jury.” 174 U.S.App.D.C. at 474, 533 F.2d at 701. Similarly, in United States v. Farinas, 299 F.Supp. 852, 854 (S.D.N.Y.1969), the court dismissed an indictment which charged a violation of the Selective Service Act of 1967 in defendant’s refusal “to obey certain orders” but failed to specify the nature of the orders disobeyed. The nature of the omissions in these cases persuades us that this indictment need not fall under the same theory. The distinction is that between a defendant’s constitutional right to know what offense he is charged with and his need to know the evidentiary details which will be used to establish his commission of that offense. See Van Liew v. United States, 321 F.2d at 670; Carbo v. United States, 314 F.2d 718, 732-33 (9th Cir. 1963) (where indictment charges Hobbs Act conspiracies to commit extortion and to transmit threats by interstate communications, manner in which interstate commerce to be affected need not be alleged). In this indictment, an explicit discussion of the enterprise’s effect on interstate commerce would contribute virtually nothing to defendants’ understanding of the nature of the offenses charged which were conducting an enterprise’s affairs through racketeering activity and conspiracy to do the same. This is not a case where the element alleged in nonspecific terms, effect on interstate commerce, might encompass conduct which would not come within the statute’s reach. See, e. g., United States v. Farinas, 299 F.Supp. at 854. Neither are we faced with a variance between allegations of interstate commerce effect in the indictment and proof at trial through which defendants might have been convicted on some other charge than that made in the indictment. See United States v. Malatesta, 583 F.2d at 754-56 (where RICO indictment charged interstate commerce aspects in general terms, proof of acts of kind described, though acts not specifically mentioned in indictment, is permissible absent demonstration of possible prejudice). We find no indication in the record or in the argument made on appeal that defendants were surprised or in any way prejudiced by the generality of the interstate commerce allegation or evidence subsequently introduced to establish it. The indictment was, therefore, sufficient. Jury Instructions Defendants raise objections to the trial judge’s instructions to the jury on the issues of knowledge and intent required for conspiracy conviction and multiple or single conspiracies. Because the jury charge, considered as a whole, clearly conveyed the legal principles by which the jury should have made its decision, we find defendants’ objections to be without merit. United States v. Fontenot, 483 F.2d 315, 322 (5th Cir. 1973). Regarding conspirators’ knowledge and intent, the trial judge instructed the jury as follows: One may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a defendant, with an understanding of the unlawful character of a plan, knowingly and willfully joins in an unlawful scheme on one occasion, that is sufficient to convict him for conspiracy even though he had not participated at earlier stages in the scheme and even though he played only a minor part in the conspiracy. Of course, mere presence at the scene of an alleged transaction or event, or mere similarity of conduct among various persons and the fact that they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some object or purpose of a conspiracy, does not thereby become a conspirator. The judge subsequently defined “knowingly” and “willfully” as follows: The word “knowingly,” as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident. The word “willfully,” as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposedly, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law. Considering these instructions together, United States v. Evans, 572 F.2d 455, 471 n. 15 (5th Cir. 1978), we find they present an accurate statement of the law and do not differ materially from the charge requested by the complaining defendant or that approved in United States v. Fontenot, 483 F.2d at 323-24. Cf. Rubin v. United States, 414 F.2d 473, 475 (5th Cir. 1969), cert. denied, 396 U.S. 1011, 90 S.Ct. 571, 24 L.Ed.2d 503 (1970) (where “willfully” and “knowingly” defined to the jury, implicit in verdict was finding defendant had necessary criminal intent for conviction). Defendants also assert error in the trial judge’s refusal to instruct: Count 1 of the indictment charges defendants’ participation in one conspiracy. Should you find that the evidence shows the existence of a number of conspiracies, then you must find the defendants not guilty as to Count 1. The requested instruction is incorrect because one of the conspiracies found to exist might well be the single conspiracy charged, United States v. Taylor, 562 F.2d 1345, 1351 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Tramunti, 513 F.2d 1087, 1107-08 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), or the jury could find several different conspiratorial agreements that were steps in the formation of a larger, overall conspiracy. United States v. Perry, 550 F.2d 524, 532-33 (9th Cir.), cert. denied, 431 U.S. 918, 98 S.Ct. 104, 53 L.Ed.2d 228 (1977). The following instruction on single and multiple conspiracies was given in its place: You are further instructed, with regard to the conspiracy offense alleged in Count 1, that proof of several separate conspiracies is not proof of the single, overall conspiracy charged in the indictment unless one of the several conspiracies which is proved is the single conspiracy which the indictment charges. What you must do is determine whether the single conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed, then you must acquit the defendants as to Count 1. However, if you are satisfied that such a conspiracy existed, you must determine who were the members of that conspiracy. If you find that a particular defendant is a member of another conspiracy, not the one charged in the indictment, then you must acquit that defendant. In other words, to find a defendant guilty you must find that he was a member of the conspiracy charged in the indictment and not some other, separate conspiracy. Contrary to defendants’ assertions, this instruction neither “directs a verdict” on the existence of a single conspiracy nor permits the jury to find defendants guilty as long as each belongs to any single conspiracy whose existence was suggested by the proof and fit the various allegations within Count One. The instruction, identical to that approved in United States v. Tramunti, 513 F.2d at 1107, clearly requires the jury to find that the single overall conspiracy alleged in Count One exists and that each particular defendant is a member of that conspiracy. Motions for Mistrial When Defendants Seen Shackled Defendants contend that the trial court erred in denying motions for mistrial when some of them were seen in shackles by jurors or prospective jurors. Because defendants have failed to show prejudice from such exposure, we find their contention to be without merit. The first motion for mistrial was made during jury selection after it was called to the court’s attention that the jury venire was observing defendants enter the courtroom flanked by United States Marshals. The court observed that potential prejudice had been avoided by defendants appearing in business suits and ties and by nonuniformed marshals without their badges and the motion was denied. A second motion was made when, during jury selection, at least one juror was identified in a group of people who observed defendants being brought into the courthouse in handcuffs. The motion was denied. Defendants sought no cautionary instruction, nor was interrogation of the identified juror requested. During the early days of the trial itself, a third motion was filed after a juror observed several defendants being led from the courthouse in waist chains and handcuffs. Defendant alternatively sought to have that juror struck. The juror, questioned by the court at defendants’ request, replied that her impartiality would not be influenced by the incident and that she had not discussed and would not discuss it with other jurors. Mistrial was denied. Again no instruction was sought that handcuffs are not indicia of guilt. Defendants accused of crimes are, of course, entitled to physical indicia of innocence in their jury trials. This Court has declared, however, that brief and inadvertent exposure to jurors of defendants in handcuffs is not so inherently prejudicial as to require a mistrial, and defendants bear the burden of affirmatively demonstrating prejudice. Wright v. State of Texas, 533 F.2d 185, 187 (5th Cir. 1976). The conditions under which defendants were seen were routine security measures rather than situations of unusual restraint such as shackling of defendants during trial. See United States v. Theriault, 631 F.2d 281, 284 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). Defendants have made no showing of actual prejudice, nor will we assume any from the circumstances surrounding the two isolated incidents. See Dupont v. Hall, 555 F.2d 15, 17 (1st Cir. 1977). Defendants failed to request examination of jurors in order to determine who had seen defendants in shackles or to exclude those whose impartiality might be affected. See Wright v. State of Texas, 533 F.2d at 187; United States v. Taylor, 562 F.2d at 1359. Neither was any request made for a cautionary instruction. The trial court was clearly not in error in denying the motions for mistrial. Exclusion of Evidence As to Principal Witness Defendants Miller and Gispert sought to attack Haskew’s credibility at trial by showing he was biased against them because they had repelled his homosexual advances. They complain on appeal that they were prevented from introducing evidence demonstrating that bias. Regarding Haskew’s sexual predilections, defendants were permitted to ask on cross-examination whether Haskew was a homosexual and whether he had made sexual advances to Gispert, Miller and Miller’s wife. Haskew’s responses were negative. Miller’s wife was then permitted to testify that Haskew had made advances to Miller in her presence which Miller had repulsed. The court, however, refused the testimony of two witnesses who would have testified that Haskew engaged in homosexual activities. The court also sustained an objection made when Mrs. Miller testified that Haskew had made overt sexual advances to her. Miller’s counsel advised the court that her anticipated testimony to the effect that she had repulsed those advances saying “Mar-low, you know you are not interested in me, you are interested in Larry,” would have further showed Haskew’s bias. Extrinsic evidence of specific instances of a witness’ conduct is generally not admissible to contradict his testimony on matters collateral to the issues in the case and so attack his credibility. See Federal Rules of Evidence 608(b); McCormick, Evidence, § 47 at 98 (2d ed. 1972). The bias of a witness, however, is not a collateral matter and the party examining the witness is not bound by his denial of acts tending to show his bias. 3A Wigmore, Evidence, § 948 at 783 (Chadbourn rev.); United States v. Robinson, 174 U.S.App. D.C. 224, 227, 530 F.2d 1076, 1079 (D.C.Cir. 1976); United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976). The extent of proof of bias is a matter reserved to the discretion of the trial judge and the judgment will be disturbed on review only where an abuse of that discretion is shown. See United States v. McCann, 465 F.2d 147, 163 (5th Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154 (1973); Tinker v. United States, 135 U.S.App.D.C. 125, 127, 417 F.2d 542, 544 (D.C.Cir.), cert. denied, 396 U.S. 864, 90 S.Ct. 141, 24 L.Ed.2d 118 (1969). In considering evidence preferred to show bias, the judge must determine whether it is probative of bias and, if so, whether its probative value outweighs the risks of prejudice attending its admission. See Howell v. American Live Stock Insurance Co., 483 F.2d 1354, 1357 (5th Cir. 1973); United States v. Robinson, 530 F.2d at 1080. The probative value of the evidence offered here is very slight. The inference of Haskew’s bias against defendants rests on the belief that defendants were indeed subjected to and rejected Haskew’s advances. Mrs. Miller was permitted to testify that her husband had rejected such advances, and her further testimony would have been probative of Haskew’s animus toward her rather than defendant Miller. Although Gispert suggested that he would introduce evidence of Haskew’s advances to him, none was introduced. Evidence that Haskew engaged in homosexual activity with other persons provides little support for a conclusion that he made similar overtures to either defendant. See Howell v. American Live Stock Insurance Co., 483 F.2d at 1357-58; United States v. Nuccio, 373 F.2d 168, 171 (2d Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967). Furthermore Haskew’s bias against Gispert had already been suggested in his own testimony wherein he recalled telling Antone that Gispert would not get him because he carried a gun at all times and kept his eye on “the snake” whenever he saw him. Defendant Gispert also complains that the two witnesses whose testimony was excluded would have told of using marijuana and cocaine with Haskew. Evidence of Haskew’s drug use during the time of the events in question, Gispert submits, is relevant to Haskew’s credibility. See McCormick, Evidence, § 45 at 94. When Gispert asked Haskew on cross-examination whether he used drugs during the conspiracy, Haskew replied, “I have used narcotics, yes.” Haskew admitted he took a gram of cocaine a week and smoked “some joints of pot.” While Haskew’s responses are somewhat vague as to the time of his drug use, Haskew later testified to having used cocaine the night before transferring cocaine to Boni in Miami in July 1975 and at the time he stole cocaine from George DeFeis in Miami in September. The trial judge correctly observed that the witnesses’ testimony on drug use would be redundant. Again, evidentiary questions are committed to the broad discretion of the trial judge, United States v. McCoy, 515 F.2d 962, 964 (5th Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 795, 46 L.Ed.2d 649 (1976), and we cannot say that discretion was abused here. Exclusion of Evidence as to Other Government Witness Defendants argue that the trial court erred in refusing to admit into evidence the psychiatric records of the Government witness, Willie Noriega. The records of Noriega’s confinement in a mental hospital, they assert, reflect on his ability to know, remember and accurately relate the events about which he testified. Defendants cite as authority United States v. Partin, 493 F.2d 750, 762 (5th Cir. 1974), which states: [T]he jury should ... be informed of all matters affecting a witness’s credibility to aid in their determination of the truth. It is just as reasonable that a jury be informed of a witness’s mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing, [citation omitted]. The court in Partin held it to have been reversible error to exclude hospital records showing that a few months before the crime about which he testified the witness had voluntarily committed himself to a hospital with auditory hallucinations and occasional confusion of his own identity. Partin, however, limited admissible evidence of mental incapacity to that which was “probatively related to the time period about which he was attempting to testify.” 493 F.2d at 763. Here the events about which Noriega testified occurred twelve years after his treatment. In response to questions about his commitment, Noriega testified that he was committed in 1963 by order of the court declaring him mentally incompetent, was treated for four months and since his release was never again treated for any type of mental illness. Because Noriega’s psychiatric records were not probatively related to the events in 1975 and 1976 about which Noriega testified, the trial judge committed no abuse of discretion in refusing them. Refusal to Strike Witness Testimony Defendants assert that Willie Noriega’s refusal to answer questions during cross-examination by invoking his Fifth Amendment privilege deprived defendants of their Sixth Amendment right to confront witnesses through full cross-examination. The court therefore erred, they contend, in refusing to strike Noriega’s direct testimony on subjects regarding which the Fifth Amendment privilege was asserted. Noriega refused to answer the following questions on Fifth Amendment grounds: whether his January 1976 conference with Government agents was “primarily because of his own personal activities in criminal affairs”; whether since 1974 he had had a source of income other than employment or had filed a tax return; whether he had ever testified falsely under oath or so testified in a case in which he was charged with a felony; and whether he was nicknamed “Smokey the Bear.” On each occasion, the trial court sustained Noriega’s assertion of the privilege. Defendants especially challenge those rulings only with regard to the perjury inquiries. Contrary to defendants’ suggestion, however, Noriega’s admission to a Government agent prior to trial that he had previously committed perjury did not waive his privilege to invoke the Fifth Amendment as to that matter in this trial. See Ballantyne v. United States, 237 F.2d 657, 665 (5th Cir. 1956). Where a witness has legitimately invoked the privilege, his direct testimony must be struck only if the defendants’ inability to complete their inquiry created a “substantial danger of prejudice by depriving [them] of the ability to test the truth of the witness’s direct testimony.” Fountain v. United States, 384 F.2d 624, 628 (5th Cir.), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). It is generally only where the witness refuses to answer on “direct” as opposed to “collateral” matters that his direct testimony must be excised. Id. Defendants were not hampered in testing the truth of Noriega’s direct testimony by his silence in response to any of these questions. The apparent objective of defendants’ inquiries was the undermining of Noriega’s credibility. Noriega’s lack of credibility was clearly the dominant theme of his cross-examination. Because Noriega admitted to having lied in the past during extended cross-examination on his veracity, was thoroughly cross-examined on his cooperation with law enforcement agents, and testified on cross-examination that at the time the police first approached him he was charged with armed robbery and at the time of trial was scheduled to be tried on a state arson charge, the responses elicited by defendants’ questions would have been mere cumulative evidence of credibility. See United States v. Newman, 490 F.2d 139, 145 (3d Cir. 1974); United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). The argued relevance of the precluded responses to matters directly in issue in the case rests on a chain of inferences too long and tenuous to support defendants’ assertion that for lack of them defendants could not test the truth of Noriega’s direct testimony. We detect no abuse of discretion in the trial court’s ruling. Prosecutor’s Closing Argument Defendants challenge a number of alleged improprieties in the closing summations to the jury. The contested remarks merit neither reversal nor protracted discussion. Defendants argue that the Government’s rebuttal, using phrases such as “the attorney for Mr. Miller talked to you about” and “Mr. Gispert through his attorney recited,” constitutes improper comment on defendants’ failure to testify. The test for impermissible comment has been enunciated by this Court as whether “it can be said that the prosecutor’s manifest intention was to comment upon the accused’s failure to testify [or] was ... of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Samuels v. United States, 398 F.2d 964, 968 (5th Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969). Considering that the use of these phrases occurred during rebuttal and in response to particular arguments made in closing by defense counsel, it is at least equally plausible that the Government intended to address those arguments rather than emphasize that defendants, by failing to testify, were heard only through their attorneys. See United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977). Furthermore the jury would reasonably construe the use of such phrases as directing their attention to specific arguments made by defense attorneys in closing. Finally we note that the court instructed the jury subsequently that no inference may be drawn from a defendant’s election not to testify. We also reject the suggestion that defendants’ silence was unfairly accentuated by the closing comments of counsel for codefendant Stone, the only defendant who testified at trial. While adverse references to an accused’s silence by counsel for a testifying codefendant have been regarded as reversible error, DeLuna v. United States, 308 F.2d 140, 154 (5th Cir. 1962), mere favorable observation on the willingness of one of several codefendants to testify has not. See United States v. Washington, 550 F.2d 320, 328 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977); United States v. Hodges, 502 F.2d 586, 587 (5th Cir. 1974). Defendant Stone’s attorney made no reference to the silence of other defendants but merely observed that Stone had told his story under oath, subject to cross-examination and before the scrutiny of the jury. Finally defendants argue they were unfairly characterized as cowards in the Government’s rebuttal argument. The Government remarked that the modus operandi of the conspirators was to get someone else to do their dirty work and thus “cover themselves” and that the cowardice of the conspirators was demonstrated by the surreptitious nature of their crimes. We do not find in these remarks the “type of shorthand characterization of an accused, not based on evidence, [which] is especially likely to stick in the minds of the jury and influence its deliberations.” Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969) (prosecutor referred to defendant as “hoodlum”). Moreover the characterization of “coward” does not have the specific legal connotation of a description like “fugitive” and carries no risk of being misconstrued as a legal conclusion. See United States v. Goodwin, 492 F.2d 1141, 1147 (5th Cir. 1974). Here the thrust of the prosecutor’s remarks was the secrecy with which the criminal affairs of the enterprise were conducted and the concomitant lack of direct evidence of any defendant’s association with the enterprise. Unflattering characterizations of defendants are not reversible error when supported by the evidence. United States v. Windom, 510 F.2d 989, 994 (5th Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 121, 46 L.Ed.2d 91 (1975) (“con artist”); Walker v. Beto, 437 F.2d 1018, 1020 (5th Cir. 1971) (“professional criminal”). The characterization of a murder and murder attempts perpetrated by ambush and booby traps as “cowardly” is neither unfounded nor unfairly prejudicial. FRANK DIECIDUE Frank Diecidue was convicted on all four counts under which he was charged: the conspiracy and racketeering counts, one count concerning firearms, and one count concerning the destruction of an automobile. He was sentenced to concurrent terms of twenty years on the first two counts and consecutive terms of ten and twenty years on the other two counts. In addition to adopting all relevant arguments of the other defendants in this case, Diecidue argues that the trial court erred in admitting against him hearsay evidence of alleged coconspirators when there was insufficient evidence to show that he was a member of the conspiracy. A review of the record establishes the validity of this argument. Without this hearsay evidence there is insufficient evidence to establish beyond a reasonable doubt that defendant was guilty of either the conspiracy charged in the indictment or that he was a member of the enterprise charged. Thus his convictions on these two counts must be reversed. The admission of inadmissible evidence tainted his conviction on the other two counts so that they must be reversed and the case remanded for a new trial. In view of this disposition of the case, it is unnecessary to rule on Diecidue’s second major argument, that the district court erred in denying his motion for severance. The only evidence which clearly linked defendant Diecidue with specific activities of the conspiracy was presented in the testimony of the Government’s chief witness, Marlow Haskew. Haskew testified that he engaged in the following dialogue with co-conspirator Gispert en route to Yeehaw Junction where they picked up dynamite to be used in a car bombing: He asked me if I had any qualms about placing a bomb on a car, and I told him that I never had. . . . And I said, “Well I don’t care, you know, as long as we’re going to get paid. Do you know who we’re dealing with . . .? And he said, “Yes.” He said, “We’re doing this for Frank Diecidue.” Haskew also testified to having had the following conversation with coconspirator An tone the following day: I told him what Gispert had said to me on the way to Yeehaw Junction, and he said, “yes.” He says, “Don’t worry about the money.” He says, “I know Diecidue well.” Although this Court revised the conditions for admission of coconspirator hearsay in its recent en banc decision, United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, - U.S. -, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), James applies only to statements introduced in trials commencing after thirty days from the date of that opinion. Therefore defendant’s appeal must be considered under the standards set forth in United States v. Apollo, 476 F.2d 156 (5th Cir. 1973). The Apollo test was articulated in United States v. Oliva, 497 F.2d 130, 132-33 (5th Cir. 1974), as whether the government, by evidence independent of the hearsay declarations of the co-conspirator, has established a prima facie case of the existence of a conspiracy and of the defendant’s participation therein, that is whether the other evidence aliunde the hearsay would be sufficient to support a finding by the jury that the defendant was himself a conspirator. The Government argues that Diecidue's role as a knowing conspirator is demonstrated by the independent evidence presented by three witnesses, Willie Noriega, Cesar Rodriguez and Marlow Haskew, Noriega testified to having had three discussions with Diecidue in late April 1975. In the first, Diecidue asked Noriega if he knew how to use dynamite and if he would mind showing someone else how to use it. They planned to meet again the following day at Diecidue’s place of business, Dixie Amusement. At that time Diecidue, fearful that his office was bugged, asked Noriega to step out back and asked Noriega to go with someone to try out bundles of five sticks of dynamite on tree stumps in the country. Several days later Noriega returned to Dixie Amusement where Diecidue told him he had found someone else to take care of that and his services would not be needed. The Government argues the significance of these meetings in light of evidence adduced to show that two months later dynamite was used to blow up the car of Manuel Garcia who had become Diecidue’s competitor in the vending machine business sometime in April. The tree stump Diecidue had in mind, the Government argues, was in fact the artificial leg of Garcia. Noriega also testified to having seen Diecidue conversing with defendant Gispert at a party at the Castaways Lounge in June 1975. The Government notes that Gispert was one of the participants in the Garcia bombing. Considering the events of the conspiracy chronologically, the next evidence of Diecidue’s involvement came in the testimony of Cesar Rodriguez whose car was bombed on July 31,1975. Several days after the bombing, Diecidue phoned Rodriguez at one of Rodriguez’ lounges and said, “Cesar, this is Frank Diecidue. What the hell’s going on? I don’t understand these bombings. Not you. I can see Manuel. He’s got a lot of enemies.” Rodriguez replied, “I don’t know what’s going on, Frank. Thank you for calling. I don’t want to discuss it on the phone.” This phone call, the Government suggests, was Diecidue’s attempt “to cover his tracks.” Noriega testified that in August 1975, Diecidue asked him if he had had anything to do with the bombing of a building in which Diecidue had installed vending machines and if he was working for Rodriguez or Garcia. The Government construes these questions as evidence that Diecidue was concerned that his own involvement was suspected and that he was being bombed in retaliation. Haskew testified to several telephone calls he made to Diecidue in August and September 1975. In the first Haskew said: Well, you little drunk, you got us all in hot water behind these bombings, but that’s all right. You’re going to get yours. We’ve been watching you so long, that little white dog out behind your house loves us more than he does you. Diecidue responded in a highly excited manner “Who is this talking this way on my phone?” and started cursing, whereupon Haskew hung up. In the second call Haskew said simply “we’re still watching,” to which Diecidue responded in a manner construed by Haskew as a threat, “I told you don’t call on my phone that way. I’ll meet you anywhere. You name the time and place.” Diecidue began cursing and Haskew hung up. Haskew called Diecidue a third time, leaving a message for him at Dixie Amusement that “we’re still watching him.” The Government argues that Diecidue’s failure to deny involvement in response to Haskew’s accusatory remarks indicates his complicity. Finally, Noriega told Diecidue shortly before his indictment that Diecidue was going to jail on these bombings and there was a lot of talk in town. Diecidue got upset, told Noriega it was none of his business and left. The Government again attributes significance to his failure to deny involvement. The Government’s case against Diecidue, absent the statements of Antone and Gispert, is built of supposition on a foundation of inference. There is not the slightest evidence to connect Diecidue’s interest in dynamite in April with the dynamite used in the Garcia and Rodriguez bombings or with the perpetrators of those acts. Noriega testified he had no idea what Diecidue and Gispert were discussing at the June 1975 party, and conspiratorial participation is clearly not evidenced by mere association with a conspiracy’s members. No evidence suggested that Rodriguez was a competitor or enemy of Diecidue, and Rodriguez testified that Diecidue had never attempted to coerce him to place Dixie Amusement vending machines in his lounges. Diecidue’s responses to Haskew’s threatening phone calls were no more suspicious a response than would have been denying involvement to a complete stranger who purported to have him under constant observation. Nor should Diecidue be penalized for failing to defend his innocence to Willie Noriega. We conclude that whatever misdeeds the evidence against Diecidue may suggest, it fails to establish Diecidue’s participation in the conspiracy. “Leaving the hearsay testimony out of consideration destroys the case in fact. Taking it into consideration destroys it in law.” Panci v. United States, 256 F.2d 308, 311 (5th Cir. 1958). FRANK BONI, JR. The evidence showed that there was a criminal conspiracy among Miller, Gispert, Antone and others in connection with the criminal enterprises prohibitions of RICO. The only count against Boni charged him with being a part of that conspiracy, for which he was sentenced to twenty years imprisonment. The only evidence against him consisted of his supplying dynamite to certain members of the conspiracy and purchasing cocaine from another member. The Government’s brief recites the facts against Boni. In early June 1975 appellant Boni told Nathan Brooks Wood that he was interested in purchasing explosives from Wood for $500. Several days later, Boni telephone Wood and advised that his “people were ready” for the “merchandise” (a term Boni and Wood used to mean dynamite for fear their conversations were being monitored). Accordingly, Wood met Boni at a coffee shop in Miami, where Boni gave him $500 and advised that he would get in touch with Wood within the next few days if he needed more dynamite. In order to effect the transfer of dynamite, Boni told Wood to follow him a few blocks “to make sure [they] weren’t followed.” When the dynamite (packaged in plastic containers inside a suitcase) had been placed in the trunk of Boni’s car, Wood handed Boni the blasting caps and attempted to explain how to detonate the dynamite. Boni said that was unnecessary because “the people he was taking it to knew how to handle it.” During the last week of June 1975, Boni met Gispert and Haskew at a service plaza on the highway between Miami and Tampa. At that time Boni transferred to them a suitcase filled with plastic containers of dynamite and the blasting caps. Gispert told Haskew he paid Boni $1,250 for the dynamite. When Gispert and Haskew returned to Tampa, Antone expressed disappointment that they had not obtained plastic explosives which were “easier to handle.” Several days after the dynamite was used to bomb Manuel Garcia’s car, Boni contacted Wood and told him that his “people were well pleased with the merchandise.” Boni said that he was interested in obtaining some “stronger stuff ... or some type of plastic explosive that would be easier to handle.” Wood agreed to check into the possibility, but subsequently reported to Boni that “they’d increased the security around the place and [Wood] wasn’t able to get it.” Boni contacted Wood concerning explosives on at least six subsequent occasions, but Wood was never able to procure more. In July 1975 Gispert told Haskew that he thought he could get dynamite for the Rodriguez bombing from a junk yard dealer (defendant Davis) because Boni was unable to supply any more. In July 1975 Gispert and Haskew delivered to Boni six ounces of cocaine that Gispert had obtained from Acosta. The money from that transaction was divided equally among Gispert, Antone and Haskew, the core members of the enterprise. The Government contends that this evidence was sufficient to warrant the inference that Boni supplied dynamite to the enterprise on one occasion and unsuccessfully attempted to obtain explosives on another. It argues that the secretive manner in which Boni took possession of the material from Wood and his desire to obtain “stronger stuff” justify the inference that he knew the purpose for which Gispert and Haskew wanted the dynamite. That involvement, the Government asserts, and his purchase of a substantial amount of cocaine from the enterprise established beyond a reasonable doubt that Boni had knowledge of the ongoing, diverse nature of the operation and that he agreed to participate in the affairs of the enterprise. The Government’s argument seems to overlook the unique characteristics of a RICO enterprise. There can be little doubt that the evidence showed Boni to be guilty of substantive crimes. The evidence may even show his guilt of conspiracy to commit certain substantive crimes. Whether he has been or will be charged with those crimes is not within the scope of this record and can be of no concern to the Court on this appeal. The question is whether he is guilty of the crime charged. The Government has contended and we have held that the indictment charged a conspiracy to conduct a criminal enterprise as defined in 18 U.S.C.A. § 1961(4) through a pattern of racketeering activity which, in turn, is defined to require two or more acts of racketeering. 18 U.S.C.A. § 1961(5). The transfer of the dynamite is not such a statutorily defined act. Contract murders would be. Sale of cocaine would be. Dealing in narcotics would be. Boni’s purchase of cocaine from the enterprisers would not be an agreement with them to conduct the enterprise, although it would go to his knowledge as to the enterprise’s activities. There is no evidence upon which to find that Boni knew the enterprisers were engaged in contract murders, a proven purpose of the enterprise, or that dealing in drugs was a part of that enterprise activity. It is not even contended that Boni had any knowledge about the armed robberies, distribution of counterfeit currency, or stolen Treasury bills. Without evidence that Boni knew something about his codefendants’ related activities which made the enterprise, he could not be convicted of conspiring to engage in a pattern of racketeering as defined by the statute. His conviction for the crime charged must be reversed. HOMER REX DAVIS Homer Rex Davis was convicted on two counts: the main conspiracy count and one count involving a destructive device. He was sentenced to consecutive terms of ten years on the first count and five years on the second count. The Government concedes the evidence of defendant Davis’ involvement in the affairs of the enterprise is insufficient to sustain his conviction of conspiracy. Even if the evidence showed that Davis supplied the dynamite used in the Rodriguez car bomb and permitted the inference that Davis was aware of its intended use, it fails to show agreement by Davis to participate in the affairs of the enterprise through two or more racketeering activities. See United States v. Elliott, 571 F.2d at 903. Davis’ conviction on Count One is, therefore, reversed. Aiding and Abetting Possession of Destructive Device Davis also challenges his conviction on Count Five for aiding and abetting the possession of a destructive device, the Rodriguez bomb. The Government concession and our agreement that Davis was not shown to be a member of the conspiracy automatically require a reversal and new trial for Davis as to Count Five. Both Haskew and Gene Radney, a Tampa bail bondsman, were permitted to give testimony about hearsay statements of alleged coconspirator Gispert which were prejudicial to Davis and not admissible without a showing that Gispert and Davis were coconspirators. Davis argues that the other evidence was insufficient to support a guilty verdict and that he should be granted acquittal, rather than a new trial. His contention is as follows: The Government failed to show knowledge or inferred knowledge on the part of the Appellant of his isolated transaction in supplying twenty (20) sticks of dynamite to GISPERT, under Count 1. In addition, the Government has failed to show knowledge on the part of the Appellant that the dynamite would be used for a destructive device or that the Appellant formed the requisite willful intent as set forth in Count V, especially in light of the fact that mere possession of the substance dynamite, standing alone, would not be sufficient to warrant conviction, the reason being that dynamite is but one component of a destructive device. Davis correctly points out that mere transfer of dynamite would not constitute a violation of 26 U.S.C.A. § 5861(b), and that act has not been charged in the indictment. Rather Davis has been charged with aiding and abetting the transfer or possession of dynamite, the blasting caps, battery and electrical switch. Clearly he actually handled only the dynamite. A conviction based on aiding and abetting commission of a crime requires evidence that the defendant “was associated with the criminal venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed.” United States v. Martinez, 555 F.2d 1269, 1272 (5th Cir. 1977). The defendant need not have participated in every phase of the criminal venture. United States v. Hathaway, 534 F.2d 386, 399 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). It is unnecessary that he have had knowledge of the particular means by which the principals in the crime would carry out the criminal activity. United States v. Austin, 585 F.2d 1271, 1277 (5th Cir. 1978). In order to convict Davis, a jury would have to conclude that the dynamite handled by Davis was, in fact, that which was used in the destructive device described in Count Five, that Davis knew the dynamite was to be used in a destructive device and that he delivered the dynamite with the intent that such should be its use. Cf. United States v. Malone, 546 F.2d 1182 (5th Cir. 1977); United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972). Francis Booth testified that Davis, who had assisted him on occasion in his well drilling business, telephoned him in late July 1975 and asked him for a case of dynamite. Booth called Davis back and said he would have dynamite on Monday. On Monday he telephoned Mrs. Davis who said she had taken Davis to the airport and arrived fifteen or twenty minutes later to pick up the dynamite herself. Booth claimed to have given her thirty or forty sticks. After Rodriguez’ car was bombed on July 31, 1975, Booth went to see Davis and asked what he had done with the dynamite, saying he, Booth, was in trouble over it. Davis said he had given it to some “big, greasy-looking guy,” and when Booth said he would have to tell who he had given the dynamite to, Davis replied, “Do what you have to do.” Two defense witnesses, Wade Lovelace and Darrell Mann, presented a carefully documented alibi defense showing Davis had left town on the day Booth delivered the dynamite and returned the day after the bombing. We need not speculate now on what the evidence at a new trial might show. It is enough to hold that the evidence without the hearsay has sufficient substance to support an inference that Davis knew the dynamite w