Before MOORE, FRIENDLY and SMITH, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
The defendant (appellant), Milton R. Aronson, appeals from a judgment of conviction of the offense of unlawful, wilful and knowing use of the mails in a scheme to defraud (15 U.S.C.A. §§ 77q(a) and 77x, 18 U.S.C.A. § (2)) and of conspiracy to do so (18 U.S.C.A. § 371)
The indictment contained 30 counts and named a corporation, Kimball Securities, Inc., and 19 individuals. Counts One and Two charged unlawful use of the mails in connection with the purchase of stock of Great Western Enterprises, Inc., by two persons, resident respectively in Massachusetts and Maryland. Counts Three through Eleven related to stock of Mark, Inc. and Counts Twelve through Fourteen to stock of Perty Oil Company, the same statutory violation being charged. Counts Fifteen through Twenty-Four were based upon the transmission of wires and telephone communications to various persons as part of a scheme to defraud (15 U.S.C.A. §§ 77q(a) and x; 18 U.S.C.A. § (2)), Counts Twenty-Five through Twenty-Nine dealt with unlawful use of the mails to sell unregistered securities of Mark, Inc. and Perry Oil Company (15 U.S.C.A. §§ 77e(a) (1) and x and Count Thirty was a conspiracy count which included all three stocks Great Western, Mark and Perry Oil Company (18 U.S.C.A. § 371).
Prior to the trial, the defendants Sylvan B. Aronson and Milton R. Aronson sought by motion to transfer their prosecution to the Southern District of California, the area of their residence. The motion was denied on March 16, 1960. At a pre-trial conference on September 7, 1962, the government requested that the Aronsons be severed from the other defendants, that the trial proceed against them and that the trial against the remaining defendants be set for one week after the conclusion of the Aronsons' trial. On September 10, 1962, the prosecution announced that it would proceed against the Aronsons on Counts One, Two and Thirty and possibly three more. On September 14, 1962, these defendants again moved for a change of venue which was denied.
The trial commenced on October 1, 1962 against the two Aronsons on Counts One, Two and Thirty. Sylvan was acquitted; Milton was convicted on all three counts.
No errors relating to the sufficiency of the evidence or to the court's charge as to the essential elements of the crimes alleged in the indictment are asserted. A review of the facts constituting the scheme to defraud is, therefore, unnecessary.
I. The first error claimed to be prejudicial is the court's comment in its charge that "In order to keep this case within reasonable bounds, the Government has elected to present proof on only three of the counts, the first, the second, and the 30th counts." The court then advised the jury that "We are, therefore, in this trial, concerned solely with the guilt or innocence of the defendants Milton Aronson and Sylvan Aronson on counts 1, 2 and 30 of the indictment."
These statements in the charge had been preceded by substantial colloquy between court and counsel as to the method of handling the situation created by the prosecution's restricting its proof to the Great Western stock promotion (counts 1, 2 and 30). Sylvan Aronson's counsel (Milton's counsel joining therein) moved to dismiss counts 3 through 29 and sought a judgment of acquittal as to them on the ground that the government had offered no proof therein. The court granted the motion.
When the question of how the jury should be advised of the action taken arose, counsel for Sylvan stated that if the court told the jury that "some were dismissed, they [the jury] could make out an inference that the others were sufficient." On appeal, counsel for Milton argues conversely that the court's reference to the limitation of the trial to the three counts "to keep this case within reasonable bounds" called for the inescapable inference in the minds of the jury that the government had an abundance of evidence as to the other twentyseven counts which it withheld merely to shorten the trial. He contends that the court should have advised the jury that his client had been acquitted on counts 3 through 29. Whether such ...