Full opinion text
Opinion PER CURIAM. PER CURIAM : On September 21, 1976, in Washington, D.C., Orlando Letelier, former Chilean Ambassador to the United States, and Ronni Moffitt, an American associate, were mortally wounded by the remote control detonation of a bomb attached to the undercarriage of the automobile in which they were riding. On August 1,1978, Guillermo Novo Sampol (Guillermo Novo), Alvin Ross Diaz (Ross), Juan Manuel Contreras Sepulveda (Contreras), Pedro Espinoza Bravo (Espinoza), Armando Fernandez Larios (Fernandez), Jose Dionisio Suarez Esquivel (Suarez), and Virgilio Paz Romero (Paz) were indicted. The seven were charged in Count 1 with conspiracy to murder a foreign official, 18 U.S.C. § 1117; in Count 2, with murder of a foreign official, 18 U.S.C. §§ 1111, 1116; in Count 3, with first-degree murder of Letelier, 22 D.C.Code § 2401; in Count 4, with first-degree murder of Moffitt, 22 D.C.Code § 2401; and in Count 5, with murder by use of explosives to blow up a vehicle engaged in interstate commerce, 18 U.S.C. § 844(i). Guillermo Novo was also charged with two counts (6 and 7) of false declarations to the grand jury in violation of 18 U.S.C. § 1623. His brother, appellant Ignacio Novo Sampol (Ignacio Novo), was charged with two counts (8 and 9) of false declarations to the grand jury, 18 U.S.C. § 1623, and in Count 10 with misprision of a felony, 18 U.S.C. § 4. Trial by jury commenced January 8, 1979 on the charges against Guillermo Novo, Alvin Ross and Ignacio Novo only. At the close of trial on February 14,1979 each was found guilty of all charges lodged against him. This appeal followed. The evidence produced at trial was voluminous, but a brief summary shall suffice at the outset. The principal witness for the prosecution was Michael Vernon Townley (Townley), who admitted his complicity in the killings and struck a plea bargain with the government in return for his testimony. Townley, a United States citizen, entered the employ of DINA, the intelligence agency of the Chilean government in 1974. In the course of that employment, according to Townley, he was designated to carry out the murder of Letelier, who had served in the government of Salvadore Allende before Allende was ousted in 1973. Townley enlisted the help of the Cuban Nationalist Movement (CNM), an anti-Castro organization with which each appellant was affiliated. The thrust of the government’s case was that officials in Chile plotted to murder Letelier in order to crush his outspoken opposition to the Chilean government. In order to isolate themselves as far as possible from any attack on Letelier, DINA officials ordered Townley to secure assistance from the CNM. The primary theory of the defense was that appellants were simply not involved in the murder of Letelier. Appellants also sought to prove that Townley was in fact an agent of the United States Central Intelligence Agency (CIA) which had planned the assassination of Letelier and accordingly, no motive for the murder could be attributed to DINA or to the members of CNM. During the trial major evidence of the guilt of Guillermo and Ross was introduced by the prosecution in the form of testimony from government informants who were inmates of the same cell blocks with Guillermo and Ross. These informants were operating in cooperation with the government. Following the conclusion of the trial, in the case of U. S. v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115, decided on June 16,1980 the Supreme Court ruled that such testimony is inadmissible. We are thus required to reverse the convictions of Guillermo and Ross and remand the cases for retrial without the benefit of such evidence. Also, for failure to grant a separate trial we reverse the convictions of Ignacio Novo Sampol. There was a substantial disparity between the lesser offenses he was charged with and those that directly involved the murders and conspiracy, and we point out additional deficiencies in charges against him and the sentences. Appellants have made numerous allegations of error. We discuss these allegations below, providing additional factual background where appropriate, and consider all major issues and those we consider likely to recur at the retrial. I THE TESTIMONY OF THE INFORMANTS KAMINSKY AND POLYTARIDES In his testimony before the jury Townley gave a detailed account of the planning and execution of the murder of Letelier. A government witness, Sherman Kaminsky, testified to admissions made to him by the defendant Ross. Another witness, Antonio Polytarides, testified to an incriminating statement made to him by Guillermo Novo, in the presence of Ross. The testimony of these two informants corroborated in part the testimony of Townley. The incriminating statements had been made to the informants while they and the defendants were fellow prisoners at the Metropolitan Correctional Center, the federal detention center in New York City. The defendants objected to the admission of the informants testimony on the basis of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). After lengthy hearings on voir dire the court admitted the evidence. On this appeal the defendants renew their objection, citing United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Townley testified that in 1976 he was an agent of the National Directorate of Intelligence, known as DINA, the intelligence and secret police agency of the government of Chile. The director of the agency was Juan Manuel Contreras Sepulveda. In the summer of 1976, said Townley, he was assigned by DINA to go to the United States and arrange for the murder of Orlando Letelier. He was told to get in touch with members of the Cuban Nationalist Movement, a Cuban exile group based in the United States, and ask them to carry out the mission for DINA. Pursuant to instructions he came to the United States on September 9,1976 and met with leaders of the CNM, including the defendant Guillermo Novo. On the night of September 10, said Townley, several members of the CNM met with him in his hotel room in New Jersey. Present were Guillermo Novo, Alvin Ross, Virgilio Paz, Jose Suarez and other members of the CNM. According to Townley, Guillermo Novo and Paz said that Chile and the CNM shared a common political ideology, and the Cubans wanted help from Chile, such as recognition of a government in exile, sanctuary for fugitives, and participation in training programs. The Cubans did not respond that night to Townley’s request for assistance. The next day Guillermo Novo told Townley that the CNM would cooperate in the murder, but they insisted that Townley personally take part in the operation. Accordingly, Townley, Paz and Suarez came to Washington where they put together an explosive device, and at midnight on September 18 Townley taped this bomb to the cross member under the driver’s seat of Letelier’s car. The bomb was exploded by remote control' on September 21,1976, at Sheridan Circle in Washington. Letelier and Ronni Moffitt, a passenger in the car, were killed. A. THE TESTIMONY OF KAMINSKY Sherman Kaminsky testified before the jury that he met Alvin Ross at the Metropolitan Correctional Center in New York in late May or early June 1978. Kaminsky was there pending sentence on indictments charging interstate racketeering and extortion. He and Ross were confined in the same unit and at some time after June 14, 1978 they “began to talk to each other”. Ross had heard that Kaminsky had been a member of Hagannah, an arm of the Israeli military, and he said the Cuban Nationalist Movement aspired to having a similar organization. In many conversations after that Ross and Kaminsky talked about politics and the government of Chile. Ross said the interests of Chile and the Cuban Nationalist Movement were the same, that they were both anti-Castro and anti-Communist, and Chile could supply the Cuban Nationalist Movement with money, safe territory, an exchange of agents for instruction, and weapons and explosives. According to Kaminsky Ross “told me that he was involved in the murder of Orlando Letelier together with generals in DINA, Sepulveda, Michael Townley, and other members of the Cuban National [sic] Movement in this country.” Ross referred to Townley as a traitor, a rat, an informer. He told Kaminsky that he had attended a meeting at which Townley, an agent of DINA, said DINA and General Contreras wanted a Marxist agent assassinated, that this agent was a threat to DINA and that the cooperation of the Cuban Nationalist Movement in the murder would help to cement relations and agreements between the Movement and DINA. Ross called Letelier a rotten Communist Marxist and said he was glad Letelier was dead, that he had contributed two wires used in the bomb that killed him. Ross also expressed anger because DINA had not given him some money which he had expected. He predicted that he would not pay for Letelier’s murder because the CIA would be the scapegoat, people would believe anything of the CIA. He wrote the address and telephone number of his brother A1 Ross in Miami Beach, Florida, on a piece of paper and gave it to Kaminsky. A xerox copy of this paper was received in evidence as Government Exhibit 126. (Tr. 4380) As we have said, Kaminsky and Polytarides were examined at length on voir dire. In addition, before Kaminsky was permitted to testify before the jury, his counsel, William I. Aronwald, Esquire, of the New York bar, made a statement for the record which all parties accepted as evidence. (Tr. 3677 et seq.; 3696; 3698; 4278) The voir dire hearings, together with cross examination before the jury, revealed the circumstances which led to the appearance of Kaminsky and Polytarides as informants. We turn now to that evidence with respect to Kaminsky. Sherman Kaminsky had been indicted for extortion and interstate racketeering in the Southern District of New York, in the District of New Jersey, and in the Northern District of Illinois. After pleading guilty to each indictment he became a fugitive and remained a fugitive for twelve years until January 1978, when he was arrested in Tacoma, Washington. He was then returned to the Southern District of New York and held at the Metropolitan Correctional Center in New York City. While there he began to get information from other prisoners which he would relate to Mr. Aronwald, and Mr. Aronwald in turn would pass to the United States Attorney for the Southern District of New York. Prior to June. .14, 1978 Kaminsky _provided information^ concerning a threat to the life of a federal judge and a threat to the life of an undercover police officer. He also gave information indicating that an inmate in the Dan-bury Correctional Institution planned to escape. This information was passed along to the United States Attorneys for the Southern and Eastern Districts of New York and to the FBI. On June 14, 1978 Kaminsky appeared for sentencing before Judge Irving Ben Cooper in the United States District Court for the Southern District of New York. Present in addition to the defendant were his counsel, Mr. Aronwald, and John Bartels, Esquire, and Assistant United States Attorney Shwartz, the prosecutor in the Kaminsky case in the Southern District. The proceedings were held in the robing room, the court noting that this was done because of the defendant’s “cooperation with the authorities”; and the court directed that the minutes be sealed. At the outset of the sentencing proceedings Mr. Shwartz invited the court’s attention to Kaminsky’s cooperation with the authorities in New York, which he said was continuing, and Mr. Aronwald noted that within the past three weeks Kaminsky had given information concerning a planned escape from Danbury. The court then addressed the defendant, saying in part as follows: THE COURT (Sentencing TR. 9-11): I want you to listen very carefully to what I have to say. In the first place, I think it necessary for me to tell you who the judge is who is to sentence you. And why? Because I want to point out to you that I have been around, and I want to point out to you that I am not falling for anything; that whatever I do I am going to do in such a way that if you in any way disappoint me, I will put the clutch on you so that no matter what you do you won’t be able to extricate yourself from the judge’s sentence. I know it sounds threatening, but I have got to talk plain. (Sentencing TR. 9) * i: sK sf; s}e Your lawyers have done one whale of a job for you, Mister. They believe in you. I don’t. That is putting it on the line. I’m not. sure of you; they are. Why do I bother with you altogether, then? Why don’t I just throw the book at you and say you did a dirty, slimy, almost inhuman bit of deportment, you should pay, and I wish the law would enable me to multiply it by ten? Why do I bother with you altogether since I suspect you? For the simple reason that there has been called to my attention by your lawyers and by the Government, in all fairness, that you have been cooperating. Does that mean that I am convinced that you have told everything you know? Not by a hell of a long way. No, sir. You haven’t convinced me of that. I don’t know whether you are peddling some of this a bit at a time. (TR. 10-11) See, I have had people like you. Some of them were my witnesses before I became a judge. I have seen some of the worst rogues rise to the top, and I have seen some of the worst rogues go down the gutter. What they do by way of saying they will cooperate is to dole it out like with a medicine dropper. I think I was able to tell which ones were really opening up and which ones were really playing a game of cat-and-mouse. I have a feeling that you are in the middle ground, that you are giving some material, and I think some valuable material, but I think you can go much further. Do I think Kaminsky would not succumb to the temptation of going back to the same kind of maneuvering that he engaged in? I’d like to think not, but I may say candidly that when you are in a corner I think you may very well pull off the old kind of stuff. (TR. 11) I come back to the only thing that makes me talk to you, spend my energy, exercise a sore throat. Why do I do it? I say I do it only because I believe you can be cooperative with the authorities to the end that the community will be benefited by the help that you are in a position to give. (TR. 12, 13) THE DEFENDANT: I can and I will, your Honor. THE COURT: And your lawyers are in pleading with me to give you a chance to make good and not put you in jail. Why am I considering doing it? Only because you may be of service to the national community. If I didn’t think that you could render service and be helpful, and in that way possibly purge yourself, I wouldn’t spend three minutes with you, . . . (TR. 16) * * * * * * All of which makes me reiterate that I’m not sold on you. (TR. 18) I ask you very plainly: If I give you a chance to cooperate with the authorities, I don’t care where the authorities are in America, in the United States of Ameriea-I don’t care whether it’s Alaska or whether it’s New Jersey or Chicago-Hammock did it, and you know I clipped his sentence because he did it. But he proved it, and only after he proved it did I cut the sentence. I ask you plainly. Don’t kid yourself. Get this over with, Kaminsky. If there is nothing here for you, don’t fool yourself. I will find out. Take your sentence. Have it over with. Don’t bluff the judge. When the judge says to you “Kaminsky, do you think you can help the authorities?”, don’t brush me off or think you are satisfying me by. saying yes. Don’t say yes unless you know what you are talking about, because I will find out. (TR. 18, 19) Now, what do you say? Kaminsky responded (TR. 19, 20): THE DEFENDANT: Judge Cooper, I have been listening to every word you said. I believe every word you say. Your reputation goes before you. You are considered a hard judge, and I believe everything that you just said. And, in answer to your question, if the Government will enable me to help, if they will .allow me to help, I will purge myself. I am limited in how I can help. I can do more; I have offered to do more. There isn’t enough that I can do to satisfy what I have done. But I will give the Government my full and total cooperation if they will just let me, if they will just give me an opportunity to really go and do the things that I know I can do. This is the opportunity I need. (TR. 19) I can really give them service, really do things. I want to be able to do things. I told this to both my attorneys a long time ago. I was born and raised in the streets of New York. I served time in jails in New York. I know a lot of people that are in crime and they are people that know me, and they are people that have always thought that “this is one of our kind.” I don’t know how to describe it. But there are people that have confidence in me, they talk to me, and I could utilize these confidences if they would let me, and I have done the best that I could under the circumstances. Judge Cooper, I haven’t held anything back. I haven’t held one thing back. As quickly as it came to me, that is as quickly as I called Bill Aronwald. But I give you my word that the U.S. Government in any capacity has got my full and total cooperation. But to please give me an opportunity to let me use it, to let me show them. The court replied: All right. That is' fair enough. (TR. 19, 20) Turning to Mr. Shwartz the court then repeated that the purpose of the sentence he was about to pronounce was “to hold [the defendant] to account, on his pledge to be of service to the authorities.” (TR. 20) The court asked him (TR. 21). Am I to infer that you see the wisdom of taking, urging such steps on the part of the authorities as will enable this defendant to make good what he pledges he is prepared to do. Mr. Shwartz replied (TR. 22) that his office and the authorities in the Eastern District had told the United States Attorney in the Northern District of Illinois about Kaminsky’s cooperation and “the ongoing nature of Mr. Kaminsky’s assistance.” He said the federal prosecutor in the Eastern District was “hopeful of securing Mr. Kaminsky’s testimony in some capacity”, and that “Any cooperation in terms of other new fields which I think we all hope may turn out to be fruitful, I don’t think that the U.S. Attorney’s Office for this district can do anything to enable Mr. Kaminsky to do that.” He concluded (TR. 23): “I think all that your Honor can fairly expect of Mr. Kaminsky-and all Mr. Kaminsky offers-is that he cooperate to the fullest extent he can under the circumstances he finds himself in.” Expressing satisfaction with these representations the court noted (TR. 23): The Government can only go as far as it possibly can under these circumstances. I think it would be foolhardy not to alert everyone as to what you have said on the record, Mr. Kaminsky, and if I find that you have nevertheless done all you can while in confinement ... I certainly am not going to hold it against you so long as I am convinced that, while in confinement, you went all out ... all of which leads me to say very candidly that I will give this defendant credit for whatever he does, even if he comes up with almost nothing. But if he has actually tried and I am impressed that he has tried, I will give him credit for that. But he’s got to strain himself, ... (TR. 25) I am going to give you a chance to prove yourself. I intend to hand you a sentence and I am going to suspend the operation of that sentence depending on how you come through, and you know what I mean by that expression . . . You are going to be on probation. You are going to have to prove to the judge that you really are what you say you are, that you really will perform what you pledge will be performed, that you recognize that is the only reason why the judge is allowing this kind of a sentence to come into existence. . . . (TR. 28, 29) If you don’t make good, I will throw you in the can if it’s the last act I do before I pass on... . The point is, Mr. Kaminsky, I’ve just got to go back to the first utterance I made: You are suspect; that’s it. You might as well know. You surprise me by showing me you are what you are, I will back you up to the hilt. And, if you don’t I will back you into jail. (TR. 31) Kaminsky responded: Judge Cooper, number one, I believe you. God knows, I believe every word that you are saying. I will try my hardest. This afternoon, this evening, visiting me at the Detention Center here is Mr. Gambino’s cousin. He is coming to visit me. I have explained this to Mr. Aronwald. I explained it to Mr. Bartels. There is no limitation to what I can do or what I can attempt to do, but I know I can accomplish something. Your Honor, please believe me. I want to be able to purge myself. I don’t know if it’s possible, but I want the chance. The court repeated (TR. 33) that one of the main conditions of probation is your unstinted, unlimited, full cooperation with all the authorities, federal and state, anywhere in the United States of America. The court sentenced Kaminsky to imprisonment for five years and a $10,000 fine, the term of imprisonment to be suspended, and the defendant was placed on probation for five years. Sentence in the New Jersey case, which had been transferred to Judge Cooper, was continued for six months to December 14, 1978. The court noted (TR. 35): I don’t know what I am going to do at the end of six months. I am going to measure, see how far he goes. Concluding the proceedings the court said (TR. 37): The judgment and commitment will be sealed. I just don’t want any leak. I don’t want anybody to hurt you. I don’t want any of that. I don’t want you endangering yourself; understand that. I expect the Government to give you protective custody if protective custody is required. But that doesn’t say that you can relax and say “nuts to them” unless they do this, that and the other. You have got to show 100-percent good faith. You have got to forge ahead on your own. Kaminsky replied (TR. 37): I will, your Honor. Judge Cooper, I will never lie to you, nor will you ever get a report that is a lie from me. I will do my hardest and I want to thank you for giving me a chance. After his sentencing on June 14, 1978 Kaminsky continued in confinement at the Metropolitan Correctional Center. He and Ross were on the same floor, along with some sixty other men. Before Kaminsky was sentenced, however, he had not talked to Ross or given any information about Ross. (TR. 4382, 4475, 4476, 4491, 3679) Kaminsky testified that “one day Mr. Ross initiated a conversation with me. We’d seen each other prior to that, but there had been no conversation.” For this first conversation Ross took Kaminsky to his room where they talked about the Cuban Nationalist Movement, the Hagannah, and the desire of the CNM to create a military organization similar to the Hagannah. Thereafter, said Kaminsky, they had many conversations. Kaminsky testified (TR. 3808): I never initiated any conversation with Mr. Ross, but there is no need to initiate a conversation with Mr. Ross. Mr. Ross will talk and talk and talk as long as you are able to listen. There were times when I literally had to run to get away from him, because I was working at the institution and had a job. For some reason Mr. Ross decided that he wanted to talk to me, and he talked continuously In August 1978 Ross told Kaminsky that he had plans to take motor boats, load them with explosives and by use of remote control blow up Russian ships in American harbors. He also talked about attempts he had made on the life of Fidel Castro. Kaminsky made notes of this conversation and reported it by telephone to his attorney Mr. Aronwald. He asked Mr. Aronwald to turn the information over to the CIA. According to Kaminsky he did this because he thought Ross was “a dangerous man.” On or about August 11 he gave Mr. Aronwald the five or six pages of notes he had made. Mr. Aronwald called Assistant United States Attorney Shwartz on the telephone, gave him the substance of the notes, and made an appointment to meet with him on August 17. At that meeting Mr. Aronwald turned the notes over to Mr. Shwartz with the understanding that Shwartz would make an effort to find out who Ross was, whether he was a defendant and whether the information contained in the notes was helpful or relevant to any case in which the government was interested. Early in October Kaminsky was taken to the office of Mr. Shwartz to discuss the information he had given concerning threats on the lives of a police officer and a federal judge. Mr. Aronwald was present at the meeting. At that time the information Kaminsky had given concerning Ross was also discussed, and Mr. Aronwald and Mr. Shwartz told Kaminsky that they wanted no questions or information concerning Ross’ defense and “above all, do not initiate any conversations with Mr. Ross.” On October 17 Kaminsky gave Mr. Aronwald additional information concerning Ross and the Letelier murder which Mr. Aronwald in turn related to Mr. Shwartz. Mr. Shwartz said he would pass the information along to Mr. Propper, the prosecutor in the Letelier case, and as soon as they could agree on how and to what extent the information could be used, Mr. Shwartz would be in touch with Mr. Aronwald to schedule a meeting. Thereafter the meeting was scheduled for October 31. On that day Mr. Aronwald and Kaminsky met with Mr. Propper and Mr. Shwartz in Shwartz’s office. Mr. Propper repeated the admonition previously given by Mr. Aronwald and Mr. Shwartz, that Kaminsky was not to initiate any conversations with Ross or report any information concerning his defense. Mr. Propper also told Kaminsky the nature of the charge against Ross and mentioned the names of four or five codefendants. It was agreed that for Kaminsky’s protection, to avoid the “security problems” that might arise “if they were constantly transporting him back and forth to the United States Attorney’s Office”, Mr. Aronwald would be the only person having any contact with him and that Kaminsky would give Mr. Aronwald what information he had, to be passed on to the United States Attorney. To avoid any intrusion on defense strategy discussions Mr. Aronwald agreed to screen the information before passing it on. After August 1978 Kaminsky continued to make notes on his conversations with Ross and to relay information through Mr. Aronwald. The record contains sets of his longhand notes dated respectively September 1978, December 2, 1978, December 14, 1978 and January 17, 1979. On December 19, 1978 Kaminsky appeared before Judge Cooper in the Southern District of New York, for sentencing on the case transferred to the Southern District from the District of New Jersey. At this proceeding, held in the robing room, Assistant United States Attorney Shwartz gave the court his assessment of Kaminsky’s performance as an informant between the time of sentencing on June 14 and December 19. He informed the court that in the “period of time since [June 14, 1978 Kaminsky] has in fact fulfilled your Hon- or’s predictions.” Specifically, Mr. Shwartz referred at some length to the value of the information which Kaminsky had secured from Ross, and which had been related to Mr. Propper. He reported that Mr. Propper “has spoken in glowing terms of the value of Mr. Kaminsky’s information.” In response to a question from the court Mr. Shwartz stated that Kaminsky had also furnished information concerning the “possibility” of action against a cooperating witness in a mail fraud case. Mr. Aronwald also noted (TR. 13, 14): During the six months that has elapsed since your Honor had previously sentenced Mr. Kaminsky back on June 14, Mr. Kaminsky has continued to be incarcerated at the Metropolitan Correction Center. It is fair to say that one of the reasons that we did not come before your Honor and request that bail be set with respect to the New Jersey case was because of several factors, one of which was that in view of the Chicago detainer, any bail considerations would have been academic, but moreover Mr. Kaminsky’s true value to the government, his ability to be able to demonstrate his good faith and his cooperation, seem to be enhanced, strangely enough, by his continued incarceration. After hearing from Mr. Aronwald the court concluded: “Mr. Kaminsky, you have come through. I am satisfied ...” The court then imposed sentence on the New Jersey indictment of five years imprisonment, suspended, and probation for a period of five years, to run concurrently with the five-year period of probation previously imposed in the New York case. On January 8, 1979 the case against Ross, Guillermo Novo and Ignacio Novo came on for trial in the United States District Court for the District of Columbia. In due course Kaminsky took the stand as a government witness, after the government had agreed to recommend to the court in the Northern District of Illinois that he be sentenced to the time he had already served with probation to be granted. The defendants objected to the introduction of his testimony on the ground that under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), it would violate Ross’ Sixth Amendment right to counsel. The court ruled however that Kaminsky would be permitted to testify about conversations with Ross which occurred prior to his October 31 discussion with Mr. Propper, the prosecutor in this case. We hold that this ruling was error, that the testimony of Kaminsky should not have been admitted. That testimony was so damaging to Ross that his conviction must be reversed. We think this case is controlled by United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In that case the Supreme Court held that statements made to an informant by the defendant Henry should not have been admitted at trial. It appeared that Henry had been indicted for armed robbery of a bank and had been confined in a local jail pending trial. One Nichols was then serving a sentence on local forgery charges and he and Henry were in the same cell block. Nichols had been for some time a paid informant of the Federal Bureau of Investigation. Learning that Henry and Nichols were housed in the same cell block, along with other federal prisoners awaiting trial, an FBI agent told Nichols not to initiate any conversation with or question Henry regarding the bank robbery, but to be alert to any statements made by any federal prisoner. After Nichols was released from jail he told the agent that he and Henry had engaged in conversation and that Henry had made incriminating admissions about the bank robbery. Nichols was paid for furnishing this information. At trial Nichols testified that he had “an opportunity to have conversations with Mr. Henry while he was in the jail”, and that Henry had described to him the details of the robbery and made other damaging admissions. The Supreme Court held that Henry’s statements to the informant should not have been received in evidence. The Court rejected the government’s characterization of Henry’s incriminating statements as “voluntary and not the result of any affirmative conduct on the part of government agents to elicit evidence.” The Court said: The question here is whether under the facts of this case, a government agent “deliberately elicited” incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the government; second Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols. The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the government. Nichols had been a paid government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry’s suspicion. The arrangement between Nichols and the agent was on a contingent fee basis; Nichols was to be paid only if he produced useful information. This combination of circumstances is sufficient to support the Court of Appeals’ determination. Even if the agent’s statement is accepted that he did not intend that Nichols would take affirmative steps to secure incriminating information, he must have known that such propinquity likely would lead to that result. (Pps. 270, 271, 100 S.Ct. pp. 2186-87) [footnote omitted] At trial and again in their opening brief in this court the defendants relied heavily on the decision of the Fourth Circuit Court of Appeals in the Henry case, 590 F.2d 544 (4th Cir. 1978), which held that the testimony of the informant Nichols was inadmissible. The government on the other hand urged the District Court and us to follow Wilson v. Henderson, 584 F.2d 1185 (2d Cir. 1978), which upheld the admissibility of statements made in circumstances which the government averred were “virtually identical” with those existing in the Henry case. Wilson v. Henderson, said the government, employed “the better reasoning”. Now that the Supreme Court has affirmed the decision of the Fourth Circuit, however, the government argues that the present case is “completely distinguishable from Henry.” (Supp.Br. for Govt., p. 3) We do not perceive the distinction. Although Kaminsky was not to be compensated with money on a contingent fee basis, his freedom on probation was contingent upon his “coming through” as an informer, that is, it depended on the quality and extent of his “cooperation”. “Cooperation” meant “unstinted, unlimited full cooperation with all the authorities, federal and state, anywhere in the United States of America.” It required that Kaminsky not “dole” out information “with a medicine dropper”, but “strain himself”, “forge ahead on [his] own”, and “go all out.” Kaminsky gave his “pledge” to act as an informer on those terms. He did “come through” and was rewarded by a grant of his freedom, a commodity more precious than money. It is true, as the government points out, that when Kaminsky undertook his informing project on June 14, Mr. Shwartz was interested in his information about threats to a federal judge and a police officer, and was unaware of his association with Ross. The conversations with Ross however did not begin until later and when they did begin, and Kaminsky made his first report about them in August, Mr. Shwartz displayed a lively interest. From that time until early January Kaminsky continued to report to Mr. Shwartz through Mr. Aronwald. It is immaterial that the reports went to Mr. Shwartz and not to Mr. Prop-per, the prosecutor in the Letelier case. Mr. Shwartz and Mr. Propper were both agents of the Department of Justice, the prosecuting agency of the government. In any event, no matter when Mr. Shwartz heard of Ross or became interested in Kaminsky’s information concerning him, it is clear that on June 14, 1978 Kaminsky was accepted by the government as an informant at large whose reports about any criminal activity would be gratefully received. As a competent federal prosecutor Mr. Shwartz was of course interested in obtaining any information that would assist the government in prosecuting a criminal case. And so, beginning on June 14 the government trolled in the jail, using Kaminsky as bait, and was ready to net any unwary inmate who rose to the lure. Kaminsky’s ability to “ingratiate” himself with criminals was part of bis stock in trade. As he put it at the sentencing proceedings on June 14, 1978 I know a lot of people that are in crime and they are people that know me, and they are people that have always thought that “this is one of our kind”. I don’t know how to describe it. But there are people that have confidence in me, they talk to me ... He did ingratiate himself with Ross, so much so that Ross gave him the name, address and telephone number of Ross’ brother in Miami, so that Kaminsky could communicate with the brother. The government argues that Judge Cooper could not “transform a defendant into a government agent for Massiah purposes by the imposition of conditions of probation dictated entirely by the judge”. (Supp.Br., p. 3) The short answer to this contention is that no one suggests that the judge made Kaminsky an agent. Kaminsky was an active and eager informer when he appeared for sentence on June 14. He had already informed about threats to a judge and a police officer. His acceptance of the conditions laid down by Judge Cooper merely confirmed him in the status of informer, and pledged him to “go all out” and “forge ahead on [his] own” in pursuit of the reward posted by the judge with the approval of the government. After June 14 his goal was to obtain and report incriminating admissions from Ross, a fellow inmate who trusted him. His testimony about those admissions should not have been admitted. B. THE IMPACT OF KAMINSKY’S TESTIMONY ON GUILLERMO NOVO The government argues that even if Kaminsky’s testimony was prohibited by the Henry decision the conviction of Guillermo Novo is unaffected. We do not agree. Kaminsky testified (TR. 4350): Mr. Ross told me that he was involved in the murder of Orlando Letelier together with generals in DINA, Sepulveda, Michael Townley, and other members of the Cuban National [sic] Movement in this country. Counsel for Guillermo Novo immediately moved for a mistrial upon the ground that “Guillermo Novo has been identified as the ideological leader of the Cuban Nationalist Movement” so that the quoted statement by Ross necessarily implicated him. The court denied the motion for a mistrial, saying he would give a “curative instruction” and he thereupon told the jury (TR. 4353): Ladies and gentlemen of the jury, I instruct you that this witness’ testimony only relates to the conversations he had with the Defendant Alvin Ross. It does not cover any relationship with the Defendant Guillermo Novo or Ignacio Novo, and the testimony that he gives is to be considered only in that light and not with relation to the other defendants. At the conclusion of Kaminsky’s testimony the court told the jury (TR. 4499): Now, again, you are instructed that the testimony of Mr. Kaminsky falls outside of the time alleged in the indictment relative to the conspiracy and also his statements, his testimony refers only to the defendant Ross and not to the defendants Guillermo Novo and Ignacio Novo. We think these instructions were inadequate to protect Guillermo Novo from the damaging effect of Kaminsky’s testimony. The instructions did not tell the jury in plain terms that it must not consider the admissions of Ross to which Kaminsky testified as evidence against any other defendant. The proper instruction, modeled on the standard jury instruction, would have been: The testimony of the witness Kaminsky is evidence only against the defendant Ross. It is not evidence against any other defendant and you must not consider it in any way in determining the guilt or innocence of any other defendant. See Standard Jury Instructions, 2.48, 2.53. The prejudice to Guillermo Novo resulting from Kaminsky’s testimony was accentuated by the prosecutor in his argument to the jury. Thus, referring to the meeting between Townley, Guillermo Novo, and the other Cubans in Townley’s hotel room before the murder the prosecutor treated Kaminsky’s testimony as substantive direct evidence about the meeting. He said (TR. 5161-62): Guillermo Novo is upset about Rolando Otero and he tells Michael Townley and the rest of the Cubans at that meeting, tells Michael Townley and they tell him, they will get back to him later. But it isn’t Michael Townley alone who testifies about that meeting. Ladies and gentlemen, remember Sherman Kaminsky, the gentleman that was at the Metropolitan Correction Center with Alvin Ross, who talked about how Alvin Ross talked all the time, and what did he say? He said that Ross told him that he attended a meeting and it was a meeting with this traitor, this rat, Townley-called him a traitor and a rat-you know, he never called him a liar, he called him a trator [sic] and a rat, and he said he told Kaminsky that at this meeting Townley said that General Contreras, the head of DINA, wanted the Marxist assassinated, who was a threat to DINA, that it would help cement relations between DINA and the CNM. He called him a rat, traitor, an informant, but never a liar. Sherman Kaminsky, ladies and gentlemen, wasn’t at that meeting, but he knew from Alvin Ross, from what Alvin Ross told him what went on and he told you. He told you very much like Michael Townley told you what went on at that meeting. You heard the testimony that the next day, ladies and gentlemen, Guillermo Novo, Jose Dionisio Suarez tells Townley, “All right, [sic] we’ll do it.” [Emphasis supplied] Aside from these specific examples of prejudice to Guillermo Novo flowing from Kaminsky’s testimony, that evidence in general furnished strong corroboration for the testimony of Townley, the principal witness for the government. Without Townley’s testimony the government would not have had a case. By corroborating Townley Kaminsky necessarily damaged Guillermo Novo. The conviction of Guillermo Novo must be reversed. C. THE TESTIMONY OF POLYTARIDES Antonio Polytarides was also a prisoner at the Metropolitan Correctional Center while Ross and the defendant Guillermo Novo were there. Before the jury Polytarides testified that he had been convicted of illegal diversion of firearms in 1977 and in December 1977 had been brought to the Center from Sandstone, Minnesota, on a writ. The purpose of the transfer was to allow him to assist Customs Agent King in King’s investigation of other persons involved in Polytarides’ case. He testified that he met Guillermo Novo late in May or early in June 1978 and probably had more than ten conversations with him after that. On or about December 19, 1978 he said, he saw Novo “and he seemed to me very nervous, aggravated, something was bothering him and I asked him, ‘What is wrong, Guillermo?’ and then he turned around and he says, ‘Well, I have been betrayed by some persons in my case, but we will pay them back.’ ” Ross was present during that conversation. He did not say anything but was “nodding his head”. On voir dire Polytarides testified that in December 1977 he was brought to the Metropolitan Correctional Center so that he could furnish information to agents of the United States Customs Service about the people he was dealing with in his business of selling arms and munitions. The Customs Service also wanted to know if he had any information about other similar cases. He talked to Special Agent King of the Customs Service about these matters. He testified further that beginning in January 1978 certain prisoners at the Center approached him about the purchase of weapons. Among these people was a Cuban, Louis Sotomeyer, who was interested in purchasing ten machine guns, five for his group and five for another Cuban group. Sotomeyer indicated the other group was the one responsible for the Letelier bombing. Around March 1978 Sotomeyer introduced Polytarides to an inmate named Joseph Battle who was also interested in purchasing machine guns. By this time the original purpose of Polytarides’ transfer to the Metropolitan Correctional Center had been satisfied and he wanted to be returned to Sandstone. When he told Agent King about the approaches to buy machine guns however King told him to “try and see really what they” want; (TR. 3939) and he and King decided that he would furnish information to King about the sale of machine guns, and see if he could “arrange for some of these purchases.” (TR. 3952) Around the end of May or beginning of June Sotomeyer, who was leaving for a parole hearing, turned the machine gun transactions over to Joseph Battle. Battle introduced Polytarides to Guillermo Novo as “the person for the other group that was interested to purchase machine guns.” (TR. 3941) Polytarides told Novo “I know who you are because Mr. Sotomeyer and Battle told me your group is the one that arranged it, arranged the Letelier bombing.” According to Polytarides Novo responded, “Yes, our group is responsible for that.” (TR. 3941) Polytarides reported this conversation to Agent King, although King had not asked him to find out anything about the Letelier bombing, and he understood that he was remaining at the Metropolitan Correctional Center for the purpose of arranging the machine gun deals. Polytarides reported to King on a regular basis, usually over the public telephone from the Correctional Center, and on two occasions personally. One of the personal meetings took place in the presence of an Assistant United States Attorney, in his office in the Eastern District of New York. (TR. 3952) Polytarides would tell King what was going on and sometimes King would give him directions as to what he should do in a particular situation. (TR. 3955) This went on for several months. At one time Guillermo Novo told Polytarides that two members of his group were fugitives. When Polytarides reported this conversation Mr. King instructed him “to try to find out about the two fugitives.” Pursuant to this instruction he told Novo he could arrange safe passage for the two on a Greek tanker. Novo did not respond immediately but five minutes later “he came back and says, they are not interested.” (TR. 3944) This was around the middle of July and thereafter Novo did not talk freely to Polytarides; they merely greeted each other, without any conversation. On November 9, 1978 Polytarides was notified by the Parole Board that he would be paroled January 17, 1979. Late in November or early in December Novo asked him what his parole situation was. When Polytarides replied that he would be granted parole Novo said he was very happy and thereafter he started talking to Polytarides again. He then expressed an interest in purchasing 160 machine guns and large quantities of explosives and grenades. One day he appeared to be very angry and when Polytarides asked why he was angry he said “they had been betrayed by certain people in his case but I will pay them back.” (TR. 3947-48) Ross was with him at that time but did not say anything, just nodded his head. (TR. 4179) Polytarides testified that Agent King did not promise him anything but said he would make his cooperation known to the Parole Board. He insisted that he was giving King information only because he thought it was “the correct thing to do”. (TR. 3964-66) Polytarides was placed on parole January 17, 1979. The District Court at first rejected the proffered testimony of Polytarides. In this ruling the court said (TR. 4136): As I view and perceive the matter, the defendant Guillermo Novo was put upon and sought out by the witness. The nature of the question and the conversation . . . show that the witness knew ... of the Chilean bombing, as you have admitted, before speaking to Novo. And he exploited the situation. While he did not have any contact with any of the law enforcement personnel or the FBI working on this case, he did have contact with the Customs Bureau official. There is nothing to show that there was any relationship between the Customs official and the FBI. There is testimony from the witness, however, that he was given consideration for an earlier parole, which he received.... I am left with the strong feeling, as I watched and heard, . .. that this witness, as I view everything that he said, both on direct and cross, that he set out to secure information in a positive way, he stayed on in his role as an informer. He was fortified with knowledge at a point in time that Novo, one of the persons involved in the Letelier bombing, was in the jail with him facing charges. Upon reconsideration the court ruled that the testimony of Polytarides concerning Novo’s complaint in November or December, that he had been betrayed, would be admitted. The court said (TR. 4200): I find that the witness’ testimony shows that while the relationship had broken off back in July or June, it was resumed and resurrected again, not by his own initiative. While he is relaying to Agent King or the Customs Officer King the results of the conversation, those conversations only relate to the question of arms transactions. Guillermo Novo, according to what I have before me, is the person who resurrected the broken-off relationship. We hold that the District Court’s original ruling was correct; the testimony of Polytarides should have been excluded in its entirety. Without repeating our discussion of United States v. Henry, it is enough to say that the reasoning of the Supreme Court in that case requires our conclusion. The District Court correctly found as facts that Polytarides was an informant retained by Agent King and that in this capacity he set out to secure information from Guillermo Novo. However we do not agree with the District Court’s later conclusion that because Novo’s relationship with Polytarides was “broken off” and then “resurrected” by Novo on his own initiative the conversation of November or December was admissible. In November and December Polytarides was still an informant, taking advantage of Novo’s trust and confidence. We also reject the government’s contention that Polytarides’ testimony was admissible because “his only function as informant was to follow through with weapons negotiations initiated by other inmates”. (Govt. Supp.Br. p. 11) The theory that Polytarides was a specialist informant is belied by the facts. Finally, we are not impressed by the government’s argument that after receiving his parole date Polytarides had no expectation of further benefits from the government, or need for them. True, he had been informed that he would be paroled in January but he was still in jail and still in a position to benefit from the favorable opinions and kind words of government authorities; and he would remain in that position while on parole. The admission of the testimony of Polytarides was prejudicial error affecting both Guillermo Novo and Ross. We cannot say that it was harmless beyond a reasonable doubt, as the government suggests. II THE CONVICTIONS OF IGNACIO NOVO FOR FALSE DECLARATIONS AND MISPRISION A. THE MOTION FOR SEVERANCE OF IGNACIO NOVO Ignacio Novo was indicted on two counts of making false statements to a grand jury, and one count of misprision of a felony. He was not alleged to have been a member of the conspiracy to kill Orlando Letelier, nor to have participated in the murders in any way. He was tried, however, with co-defendants Guillermo Novo and Alvin Ross Diaz who were charged in additional counts as follows: (1) conspiracy to murder a former foreign official, 18 U.S.C. § 1117; (2) murder of Letelier, 18 U.S.C. §§ 1111, 1116; (3) murder of Letelier by explosives, D.C.Code, § 22-2401; (4) murder of Moffitt by explosives, D.C.Code, § 22-2401; (5) destroying vehicle and killing Letelier and Moffitt by explosives, 18 U.S.C. § 844(i); (6) and (7) false statements by Guillermo Novo before the grand jury, 18 U.S.C. § 1623. Although Ignacio Novo (hereafter, Ignacio) raises several issues on appeal, we need only determine whether the district court’s failure to sever the trial of Ignacio from that of his co-defendants constitutes reversible error. Ignacio suggests several grounds upon which he argues severance should have been granted. These include (1) denial of his right under the Sixth Amendment to confront and cross-examine witnesses against him; (2) denial of his right to introduce exculpatory evidence; (3) the prejudicial spill-over of evidence introduced with respect to other crimes committed by Guillermo Novo and Ross; (4) confusion of the evidence against him with evidence against his brother Guillermo and confusion of the charges against each; and (5) the tremendous difference in the magnitude of the charges against his co-defendants and the charges against him. More specifically, Ignacio argues, severance was necessitated by the great disparity between the severity of the crimes charged against Ignacio, and those charged against his brother Guillermo and Ross, his other co-defendant. As the number of witnesses, amount and impact of testimony, and the gravity of the offenses involving his co-defendants far exceeded that which was admissible against Ignacio, he alleges that he was prejudiced by the inevitable spill-over of evidence against his co-defendants but not admissible as to him. Second, Ignacio argues that he was implicated at trial by the admission of statements by his co-defendants, and by witness Cañete, but was not able to exercise his Sixth Amendment right to confront and cross-examine them as witnesses against him. We hold that the joint trial of Ignacio on counts of false statements to a grand jury and misprision of a felony with co-defendants charged with conspiracy to assassinate Letelier and the murders of Letelier and Moffitt, was improperly prejudicial to Ignacio. When during the trial it became apparent that Ignacio’s guilt or innocence might well be confused with that of his co-defendants, and when Ignacio’s right to cross-examine and present his defense was impaired by his joint trial, we believe the district court abused its discretion in denying Ignacio’s motion to sever his trial. We reverse the conviction, relying upon three sets of factual circumstances that support our judgment ordering a separate trial. (1) Confusion of the Charges and Evidence We start with the premise that a defendant in a joint trial has a recognized right to a “severance of defendants or .. . whatever other relief justice requires” if it appears that he is “prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together ” Even before trial had commenced, the joint trial of defendants on charges growing out of the same underlying event-the assassination of Orlando Letelier-but premised upon entirely disparate levels and allegations of culpability, foreshadowed confusion of the evidence and prejudice to Ignacio. The First Count of the indictment lists the Grand Jury’s charges against all the co-conspirators charged with the murder of Letelier. While Ignacio was not charged with conspiracy or any role in the commission of the crime, sections 2(f), 2(g) and 4 of the First Count nevertheless state: 2(f) At all times during the period of the conspiracy, the Cuban Nationalist Movement, also known as CNM, CMN and MNC, was a Cuban exile group based in the United States. (g) At all times during the period of the conspiracy, GUILLERMO NOVO, ALVIN ROSS, VIRGILIO PAZ, JOSE DIONISIO SUAREZ AND IGNACIO NOVO were leaders of the Cuban Nationalist Movement and members of its governing council. 4. ... All the participants in the conspiracy were aware that the conspiracy would encompass and depend upon the combined, coordinated efforts of members of two organizations-DINA and the Cuban Nationalist Movement, (emphasis added throughout) Section 5 of the First Count of the Indictment then states: 5. In pursuance of the said conspiracy and to effect its object, to kill Orlando Letelier, the following overt acts, among others, were committed in the District of Columbia and elsewhere: ... 38. On or about September 21,1976, within the State of Florida, Michael Townley telephoned Igancio Novo, whereupon Novo told him that something had happened in the District of Columbia. 39. On or about September 21, 1976, within the State of Florida, Michael Townley met with Ignacio Novo and briefed him about the mission in the Washington, D.C. area (emphasis added) The impact upon the jury of these allegations referring to Ignacio in that count of the indictment charging conspiracy to assassinate Letelier must have been substantial. While Ignacio was not charged with the actual murder of Letelier, Ignacio and the organization of which he was a “leader” and a “[member] of its governing council”, the Cuban Nationalist Movement (CNM), are mentioned prominently and repeatedly throughout the conspiracy count of the indictment. Likewise there was extensive evidence introduced at trial which implicated the CNM. The Cuban Nationalist Movement, and by implication, Ignacio, one of its “leaders” and council members, were implicitly put on trial as parties to the conspiracy which was alleged to involve the “coordinated efforts of members of two organizations-DINA and the Cuban Nationalist Movement.” Indictment, First Count, 4. Since the jury found Ignacio’s two co-defendants guilty of this conspiracy, and the executed murders that resulted from said conspiracy, it is asking too much to expect this court to hold on the basis of the evidence, involving as it did the Cuban Nationalist Movement, of which Ignacio was the only “leader” and council member not named as a murderer, that the joinder of Ignacio with the principals in the conspiracy and murder did not create improper prejudice against him. The evidence of guilt by association appears unmistakably in the most classic sense of the phrase. Actual testimony at trial also created the false impression that Ignacio was involved in the conspiracy. When Michael Townley was testifying to discussions he had with members of the Cuban Nationalist Movement in which he “explained the mission, which was to kill-to assassinate Orlando Letelier”, he stated he was told by Guillermo and Suarez that they would have to “effect” the request for the assistance of the CNM “with other director members of the movement.” (Tr. 1667-1670). Townley followed this up by testifying as to “any conversation ... with Guillermo Novo or Virgilio Paz or any other member of the Cuban Nationalist Movement with respect to what the Cuban Nationalist Movement wanted from Chile or DINA .. . ”: “THE WITNESS: I can say that all of the telephone conversations that I remember at this moment have been either with Virgilio Paz, Guillermo Novo-on one occasion with Alvin Ross-that I can remember, and possibly one occasion with Ignacio Novo.” (Tr. 1671) (emphasis added). Shortly thereafter, counsel for Ignacio moved unsuccessfully to sever his client’s trial and the court reserved its ruling (Tr. 1712). The motion was never granted. The trial judge first instructed the jury that the testimony could not be considered with respect to Ignacio Novo since he was not named as a part of the conspiracy (Tr. 1715), but then amended that instruction to remind the jury that Ignacio was charged with misprision and making false statements to a grand jury, and that the evidence could be considered in that light. (Tr. 1716). The relevance of Townley’s testimony to the charges against Ignacio makes it all the more prejudicial because it intertwined Ignacio, a leader and council member of CNM, with those defendants who were charged with the conspiracy and murders. Although the court’s instructions were conscientious attempts by the trial court to limit the admission of evidence for only relevant purposes against Ignacio, the nuances and the breadth of some of the testimony made it inevitable that Ignacio would be prejudiced by the simultaneous presentation of testimony relating to the conspiracy and murder counts, with which Ignacio was not charged, and the misprision and false statements counts, with which he was. The testimony left the clear inference that although not charged, there was the definite possibility that Ignacio was in reality a co-conspirator, because of the indictment’s references to him, to the CNM and to the “director members of the movement,” and because of testimony by Town