Waterman, Friendly and Smith, Circuit Judges.
This prosecution was one of seventeen, including United States v. Ragland, 375 F.2d 471 (2 Cir. 1967), cert. denied, 390 U.S. 925, 88 S. Ct. 860, 19 L. Ed. 2d 987 (1968), brought in Hartford, Connecticut, that were commenced as a result of a sweeping probe conducted early in 1966 into illegal narcotics transactions in that area. After a trial before Judge T. Emmet Clarie and a jury in the United States District Court for the District of Connecticut appellant was convicted of having violated 26 U.S.C. § 4704(a) (selling narcotic drugs not in or from the original stamped packages), 26 U.S.C. § 4705(a) (selling narcotic drugs without first having received a written order for them upon a form issued by the federal government), and 21 U.S.C. § 174 (selling narcotic drugs with the knowledge that the drugs were imported or brought into the United States contrary to law). A sentence totaling six years imprisonment was imposed, and this appeal followed. We find no merit in any of the contentions appellant advances upon appeal, and we affirm his conviction.
First of all, appellant would have us hold that the district court prejudicially erred in refusing to direct a verdict of not gulity on the ground of entrapment and in not granting appellant's motion to set aside the verdict of guilty after the guilty verdict was returned. Appellant's claim that he was entrapped as a matter of law is based upon his and his wife's testimony concerning a conversation between appellant and a government informer, one Allevo, during which appellant, a drug addict who testified he was experiencing "withdrawal" at the time of the conversation, claims he was imposed upon by Allevo, a very sick man, in much the same manner as Kalchinian imposed upon Sherman, the defendant in Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958). Allevo died before the trial commenced and thus the testimony of the Hayneses regarding the alleged inducement was uncontradicted. Nevertheless, the fortuitously uncontradicted testimony of appellant and his wife would not have the effect of establishing entrapment as a matter of law, for "while petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to [Allevo] and so find for the Government on the issue of guilt." Masciale v. United States, 356 U.S. 386, 388, 78 S. Ct. 827, 829, 2 L. Ed. 2d 859 (1958). Also see United States v. Pugliese, 346 F.2d 861, 862-863 (2 Cir. 1965); United States v. Comi, 336 F.2d 856, 859 (4 Cir. 1964), cert. denied, 379 U.S. 992, 85 S. Ct. 704, 13 L. Ed. 2d 611 (1965); Williamson v. United States, 262 F.2d 476, 481 (9 Cir.), cert. denied, 359 U.S. 971, 79 S. Ct. 885, 3 L. Ed. 2d 837 (1959); United States v. Clarke, 220 F. Supp. 905, 907 (E.D.Pa.1963). See, generally, United States v. Riley, 363 F.2d 955 (2 Cir. 1966). Thus Sherman v. United States, supra, is not controlling here, for the evidence of entrapment in that case came from the Government's own witnesses and the Court specifically noted that no issue of credibility was involved. 356 U.S. at 373, 78 S. Ct. 819, 2 L. Ed. 2d 848. Here there is a credibility issue; narcotics agent Valentine, the man who allegedly purchased the narcotics from appellant, had testified concerning his dealings with appellant, and, from Valentine's testimony, if believed, appellant could appear to be a "pusher," and so the tale that Allevo induced sales by one not predisposed to make sales would be less believable. Therefore, whether appellant was entrapped was a jury question, and the jury evidently chose to disbelieve the testimony of appellant and his wife. Moreover, viewing the evidence as a whole, there was enough evidence in the case to show beyond a reasonable doubt appellant's propensity to commit the crimes of which he was charged. The trial court did not err in refusing to grant the motions.
However, inasmuch as the jury determination on the issue of the credibility of agent Valentine (and thus also on the issue of appellant's credibility) favored Valentine and was decisive in denying appellant's entrapment defense, we reach appellant's second contention, namely that he was denied a trial "by an impartial jury," U.S.Const. amend. VI. He contends that some of the jurors who sat in his case could not have been impartial because of inflammatory publicity surrounding the narcotics cleanup in Hartford and because these same jurors had also sat just prior to appellant's trial in two other narcotics trials stemming from the same Hartford probe, in both of which trials there had been convictions. He contends that the agents who testified in these earlier trials testified against him in his trial, and that these jurors, having considered the credibility of, and having believed, the same government witnesses in the earlier trials were prejudiced in favor of the credibility of the government's witnesses at this trial.
During the selection of the jury the record shows that after the trial judge had interrogated the entire array (venire) of 41 as a group, and after both Government and defense counsel had indicated that they had no further questions to address to the array, the names of 28 out of the 41 veniremen were drawn for possible use in appellant's case, 28 being the sum of 12 (number of jurors to be seated for this case), 6 (number of government peremptory challenges), and 10 (number of defense peremptory challenges). Both counsel were then instructed to exercise their peremptory challenges; defense counsel exercised one of his ten, and then asked that 13 of the remaining 27 veniremen be excused for cause, inasmuch as they had served as jurors in other narcotics cases arising from the same Hartford clean-up and had previously approvingly appraised the very Government witnesses who were likely to be witnesses in appellant's case. This request was denied and defense counsel was instructed to exercise his remaining 9 peremptories. This he declined to do because "the number available is inadequate to cover all of the persons in the class to which the defense has objected for cause * * *." Thereupon, 12 of the 28 veniremen were impaneled and sworn. Of these 12, 7 had seen service on the juries in other narcotics cases arising from the Hartford crackdown.
Upon these facts the Government argues that we should hold, as we did in United States v. Ragland, supra, 375 F.2d at 475, that by failing to exercise all of his peremptory challenges appellant waived his right to object to the composition of the trial jury. As it developed, appellant's 9 remaining challenges would have been sufficient to remove the "tainted" jurors who sat in his trial, but when he was required to exercise the peremptories there were 13 "tainted" jurors, 4 more than he could remove with 9 peremptory challenges. We agree with appellant that for him to have exercised his 9 remaining peremptory challenges would have been a futile gesture, compare Frazier v. United States, 335 U.S. 497, 518, 69 S. Ct. 201, 93 L. Ed. 187 (1949) (Jackson, J., dissenting), and so we hold that appellant did not waive his right to challenge the jury when he declined to exercise them.
It remains to inquire whether the 7 jurors who had participated as jurors in the previous narcotics cases may be said to have been prejudiced or biased in favor of the credibility of the Government's witnesses in appellant's case. If there were bias or prejudice we must hold that the district court committed reversible error in denying appellant's challenges to these jurors for cause, for appellant's right to a trial by an impartial jury was denied him. Cf. Lett v. United States, 15 F.2d 690 (8 Cir. 1926).
Long ago Chief Justice Marshall noted that "the great value of the trial by jury certainly consists in its fairness and impartiality." United States v. Burr, 25 Fed.Cas. 49, 50 (No. 14692g) (C.C.Va.1807). Yet, to this date, in this context, there has been no generally accepted working definition of "impartiality." The Constitution gives us no standard for determining impartiality and procedures for determining it are not chained to any rigid formula. United States v. Wood, 299 U.S. 123, 145-146, 57 S. Ct. 177, 81 L. Ed. 78 (1936). A distinction has been drawn between those cases where a challenge for cause has been based upon actual bias and those where a challenge has been based upon implied bias. See, e.g., Dennis v. United States, 339 U.S. 162, 167, 70 S. Ct. 519, 94 L. Ed. 734 (1950); United States v. Wood, supra, 299 U.S. at 133-135, 57 S. Ct. 177; Casias v. United States, 315 F.2d 614, 615, 619 (10 Cir.), cert. denied, 374 U.S. 845, 83 S. Ct. 1901, 10 L. Ed. 2d 1065 (1963) (conviction affirmed by an equally divided in banc court, both factions drawing the actual bias-implied bias distinction); see generally, Note, 49 Iowa L.Rev. 1324 (1964). The former type of bias is based upon express proof, e.g., by a voir dire admission by the prospective juror of a state of mind prejudicial to a party's interest. Appellant here here cannot claim actual bias; the veniremen were never asked upon voir dire whether they had participated in previous narcotics trials, or if they had participated whether they would be prejudiced in favor of the credibility of the Government's witnesses. The trial court gave defense counsel the opportunity at the time of the voir dire to propound additional questions and he declined to do so. Therefore the trial court had no basis upon which it could have found a juror to have had an actual bias. Indeed, before the twelve were chosen every venireman had been asked upon his voir dire whether he knew the defendant, or knew of him, or had any knowledge of the subject matter of the case, and whether he believed he would be a fair and impartial juror. The trial court, when impaneling a jury, "has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor." Dennis v. United States, supra, 339 U.S. at 168, 70 S. Ct. at 521. See also United States v. Wood, supra, 299 U.S. at 133-134, 150, 57 S. Ct. 177; Frazier v. United States, supra, 335 U.S. at 511-512, 69 S. Ct. 201. The appellant here had the duty "to raise a contention of bias from the realm of speculation to the realm of fact." Dennis v. United States, supra, 339 U.S. at 168, 70 S. Ct. at 521. Because he made no effort to do so, we cannot say, insofar as any claim of actual bias is concerned, that the trial court abused its discretion by denying appellant's request that the thirteen veniremen who had sat in previous trials be excused for cause.
The question of implied bias remains. In determining whether a prospective juror should be excluded on this ground his statements upon voir dire are totally irrelevant; a person "may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice." United States v. Burr, supra, 25 Fed.Cas. at 50 (Marshall, C. J.). To Justice Black, this is the "average man" test, Dennis v. United States, supra, 339 U.S. at 176, 70 S. Ct. 519 (dissenting opinion).
"At common law, jurors were challengeable on principle for bias or partiality due to kinship, interest, former jury service in the same cause, or because the prospective juror was a master, servant, counselor, steward or attorney, or of the same society or corporation. See Cooley's Blackstone, Vol. 2, p. 363." Casias v. United States, supra, 315 F.2d at 620 (Murrah, C. J., dissenting). Not only have these common law grounds for causal challenge retained their vitality, Casias v. United States, supra at 620 (dissenting opinion) but to them have been added others from which prejudice or bias may be implied. For example, it has been held that where a juror has served in a trial in which the defendant is convicted of a crime he may not serve on a jury trying another defendant charged with the same offense arising out of the same transaction. Lett v. United States, supra. Likewise, a juror's prejudice at the later trial is implied where a different offense is charged but the transaction out of which the alleged crime at issue arose is the same transaction involved at the earlier trial. Kleindienst v. United States, 48 App. D.C. 190 (Ct.App.1918). However, the courts have decided that a juror's prejudice must be proved, not merely implied, when he serves at the separate trials of different defendants who are tried upon charges which are similar but which arise out of separate and distinct transactions. See Ramos v. United States, 12 F.2d 761 (1 Cir. 1926); Belvin v. United States, 12 F.2d 548 (4 Cir.), cert. denied, 273 U.S. 706, 47 S. Ct. 98, 71 L. Ed. 850 (1926); and state-court cases cited in Annotation, 160 A.L.R. 753, 762-766 (1946). Moreover, the federal courts have uniformly held that prejudice must be proved, not merely implied, in cases indistinguishable from the present one, i.e., in cases in which the challenged juror has served in the trial of another defendant charged with a similar but independent criminal offense and in which identical witnesses are used by the prosecution to establish the similar but unconnected criminal acts.*fn1 Casias v. United States, supra; Cwach v. United States, 212 F.2d 520, 529 (8 Cir. 1954); Belvin v. United States, supra at 550; Wilkes v. United States, 291 F. 988, 990 (6 Cir. 1923), cert. denied, 263 U.S. 719, 44 S. Ct. 181, 68 L. Ed. 523 (1924); accord, United States v. 662.44 Acres of Land, etc., 45 F. Supp. 895, 897-898 (E.D. Ill.1942).
Is this long-standing federal practice of not inferring prejudice in cases indistinguishable from the present one a justifiable practice in light of the "average man" test? We think it is. We have enough faith in the intellectual capabilities of an average person to believe that a person who has passed upon a government witness's credibility in one set of circumstances and has weighed that witness's testimony against that of one group of defense witnesses will not be influenced by the conclusion he had drawn on that occasion when he weighs the same witness's credibility in the context of different circumstances and in the light of testimony from a different group of defense witnesses. See Casias v. United States, supra, 315 F.2d at 618; Belvin v. United States, supra, 12 F.2d at 550; Wilkes v. United States, supra, 291 F. at 990. Where some of the witnesses on both sides of the case are not the same in both causes the juror has the opportunity in the later case to gauge anew against a shifted background the testimony and credibility of the witnesses who had testified in the earlier case. While noting that, psychologically speaking, a juror may develop a "set" toward a familiar witness's credibility and toward conviction, even though the witness may not be as reliable in one context as in another, one commentator has noted that the occurrence of such a "set" is not a certainty, and has concluded that the prejudicial influence may not be so strong that any individual juror who has been exposed to it need be disqualified. Note, 112 U.Pa.L.Rev. 444, 449-450 (1964). We agree that there is an opportunity for a juror to be prejudiced when he hears the same witness in two different causes, but "if the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day." Holt v. United States, 218 U.S. 245, 251, 31 S. Ct. 2, 6, 54 L. Ed. 1021 (1910).*fn2 We decline to find that the 7 jurors who sat in appellant's trial and who had been jurrors in previous narcotics cases where the same government witnesses had testified were prejudiced jurors as a matter of law.*fn3
In addition to pointing to the prior jury experience of some of the jurors, appellant points to allegedly excessive pretrial publicity as another factor to be considered in determining whether his trial jury was an impartial one. Appellant did not timely present this claim at the district court level. The prospective jurors should have been interrogated about the extent of their pretrial knowledge if this issue were to be preserved on appeal. As we said in United States v. Ragland, supra:
Moreover, as undue influence resulting from excessive pre-trial publicity is a sufficient basis for challenging a juror for cause, Rizzo v. United States, 304 F.2d 810, 816 (8 Cir.), cert. denied sub nom. Nafie v. United States, 371 U.S. 890, 83 S. Ct. 188, 9 L. Ed. 2d 123 (1962), appellant's failure to question prospective jurors on their voir dire ...