United States v. Shelly Grant Gambler, AKA Grant Gambler , 662 F.2d 834 ( 1981 )

Opinion for the court filed by Circuit Judge TAMM.

Dissenting opinion filed by Circuit Judge MIKYA.

TAMM, Circuit Judge:

Shelly Grant Gambler was convicted of wire fraud, false pretenses, and larceny after trust. He urges reversal of these convictions on various grounds. Finding no prejudicial error committed by the trial court, however, we affirm these convictions.

Appellant managed an interior decorating business in which he recommended furniture and furnishings to clients and filled orders placed by them. Among Gambler’s clients were J. Stanley Pottinger and Richard and Barbara Cohen. On October 2, November 17, and December 5, 1978, Pot-tinger and Gambler executed three contracts for appellant’s services and for the purchase of furniture and curtains. Trial Transcript (Tr.) 6, 14, 18. The contracts required a fifty percent deposit to authorize the placement of orders for purchases, with the remaining fifty percent plus commission due within sixty days. Tr. 9. Pottinger made several payments and testified at trial that throughout that winter he received consistent assurances that everything was operating on schedule. Tr. 25-26. He testified specifically that prior to his payment on January 31, 1979,- appellant had represented to him that his furniture had been ordered. Tr. 130-31. After much prevarication, however, Gambler informed Pottin-ger on May 11 that he had not placed any orders. Tr. 40-41.

Appellant had done a substantial amount of work for Richard and Barbara Cohen in the past. On February 1, 1979, Gambler recommended that the Cohens order certain living room furniture and pay him the full wholesale cost which, Barbara Cohen testified, appellant stated would ensure expedited delivery of the furniture. Tr. 147. Barbara Cohen gave Gambler a check for the full wholesale cost of the furniture on February 2. After several assurances that the furniture was in transit, Tr. 148, Gambler informed Richard Cohen in May that the furniture had not even been ordered. Tr. 167.

The grand jury returned a five-count indictment against appellant on March 26, 1980, charging him with wire fraud, false pretenses, and three counts of larceny after trust.¹ The counts of wire fraud and false pretenses related to Gambler’s obtaining the January 31 check from Pottinger, while the larceny after trust counts concerned two payments made by Pottinger and one by Barbara Cohen.

At trial, Gambler testified that his business was an undercapitalized operation subject to wide swings in income. He maintained one business checking account in which all funds received, whether for services or furniture orders, were deposited and out of which all expenses were paid. Contradicting Pottinger’s testimony, appellant stated that he had told Pottinger not to expect delivery until the late spring. Tr. 225-26. He explained that any references to the placement of orders prior to Potting-er’s payment in January of 1979 referred to the placement of items “on reserve.”' Tr. 252. Gambler explicitly denied any intent to defraud either Pottinger or Barbara Cohen. Tr. 242. Furthermore, he cited several reasons for the delay in placing orders. He claimed that he did not become concerned about his ability to fill these clients’ orders until late March or early April of 1979. Tr. 239.

The jury found Gambler guilty as charged after a three-day trial. United States District Judge Harold H. Greene imposed a sentence of three years imprisonment, but suspended that sentence and placed Gambler on probation for five years upon two conditions: 1) that he make full restitution to Pottinger and Cohen when allowed to do so by the Bankruptcy Court, and 2) that he accept suitable employment with the assistance of the probation department. (July 7) Tr. 5-6. Gambler filed a timely appeal.

Appellant makes three major arguments in this court. First, Gambler contends that he was improperly convicted of larceny after trust because he had no obligation to apply the specific money received from the complainants for their use and benefit. Appellant argues that, therefore, no trust relationship existed as a matter of law. Second, Gambler contends that he requires a new trial because the district court failed to instruct the jury on his “good faith” defense to the charges of wire fraud and false pretenses, crimes that require the proof of intent to defraud. Third, appellant submits that the district court committed reversible error by limiting cross-examination of a complaining witness.²

Gambler’s first contention need not detain us long. Under United States v. Orsinger, 428 F.2d 1105 (D.C.Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 61 (1970), it is clear that whether the requisite trust relationship, as opposed to a debtor-creditor relationship, existed between the defendant and his clients, “depends upon all of the facts and circumstances, including the intention of the parties.” Id. at 1112.' Our review of the record in this case leaves us convinced that the trial judge, although finding the legal sufficiency a close question, committed no error by submitting this question to the jury, Tr. 195, and that there was adequate evidence for the jury to find as it did. See, e. g., Tr. 16-17, 129-30, 159-60.

Appellant’s second contention may also be readily dismissed. His challenge to the district court’s refusal to deliver a requested instruction must be judged by viewing the instructions as a whole. United States v. Westbo, 576 F.2d 285, 289 (10th Cir. 1978); United States v. Martin, 475 F.2d 943, 947 (D.C.Cir.1973). A review of the instructions given by Judge Greene in this case reveals that the trial court took care to emphasize the Government’s burden of proving the element of specific intent beyond a reasonable doubt. Tr. 332-33, 336-38. We believe that these instructions sufficiently covered the particular point raised by appellant’s requested “good faith” instruction. Defendant’s Requested Instruction No. 4; Supplemental Tr. S-13. See United States v. Westbo, 576 F.2d at 289; Cortez v. United States, 328 F.2d 51, 54 (5th Cir.), cert. denied, 379 U.S. 848, 85 S.Ct. 89, 13 L.Ed.2d 52 (1964).

Appellant’s third contention cannot be so easily dismissed. He argues that he was inappropriately limited in his attempt to probe the accuracy and veracity of statements made by the Government’s chief witness Pottinger. In particular, appellant objects to the district court’s refusal to allow him to cross-examine Pottinger regarding two civil suits instituted by Pottinger against appellant. Appellant contends that, on the basis of the rationale articulated by this court in Villaroman v. United States, 184 F.2d 261 (D.C.Cir.1950), this refusal to allow cross-examination for bias constituted prejudicial error.

In Villaroman, this court reversed a conviction where the district court had refused to allow cross-examination of the complaining witness on the subject of that witness’s pending civil suit against the defendant arising out of the same circumstances as the crime with which the defendant was charged. A general rule has evolved from this case and others to the effect that the trial court should allow cross-examination and the airing of evidence with respect to a witness’s pending, or even contemplated, suit against the defendant. See 3 Weinstein & Berger, Weinstein’s Evidence § 607[03] (1978) and 3A Wigmore, Evidence §§ 949-952 (Chadbourn rev. 1970), and cases collected therein. By allowing a probe into the circumstances of a pending or contemplated lawsuit, it is believed that a defendant may bring to light two factors reflecting the possible bias of the witness: his pecuniary interest in the outcome of the criminal trial and the existence and degree of animosity he may harbor against the defendant.

In this case, however, we are not presented with a situation in which defense counsel sought to probe the subject of pending or contemplated litigation by a witness against the defendant, but one in which counsel attempted to elicit information regarding past litigation. Counsel attempted to extract such information solely to suggest to the jury that Pottinger possessed “considerable hostility” against the defendant that could color his testimony. Brief for Appellant at 30. We cannot assume, as appellant apparently has, the automatic application of Villaroman to the case at hand. Here appellant has made no attempt to argue that Pottinger possessed, in this context, any pecuniary interest in the outcome of the trial, a substantial reason for the decision in Villaroman. Moreover, we have discovered very little authority discussing the discretion of trial courts to limit cross-examination in similar circumstances, wherein the defendant would have the jury infer hostility, and thereby a motive to falsify testimony, from attempts, now terminated, by a victim to recover compensation for harm perpetrated by the defendant. A state appellate court addressed an analogous situation in a fraud case in which a trial court had foreclosed an inquiry by the defense into the knowledge of the complaining witness before he filed a complaint that the defendant had instituted bankruptcy proceedings. The court affirmed the conviction, noting that the witness,

as a victim of a crime, stands in the same position as any other victim of a crime and his motive, whether it was outrage due to the crime or a desire for revenge because of the crime, has no relevance to the question of the guilt or innocence of the defendant or the truth or falsity of the testimony.

People v. Mitchell, 50 Ill.App.3d 120, 7 Ill. Dec. 900, 365 N.E.2d 185, 189 (App.Ct.1977). Neither these sentiments nor the rationale of Villaroman readily suggests the resolution of the issue here presented. Absent controlling precedent, we must examine closely the particular circumstances of this case to determine whether the district court exceeded the bounds of its discretion. We are certainly aware that trial courts should give great latitude to defense counsel upon cross-examination of Government witnesses, especially in the area of bias and interest. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

The circumstances into which defense counsel sought to inquire cannot be set forth in any summary fashion. Pottinger apparently filed two civil suits against Gambler in an attempt to recover the monies paid out, one suit in New York on May 25, 1979, and another in the District of Columbia approximately three weeks later. Tr. 103. The amount requested in each suit was $109,000, including $30,000 for loss of business opportunities and $50,000 for pain and suffering. Gambler filed for bankruptcy on June 29, 1979. Tr. 241. Pottinger then filed papers in that proceeding seeking to disallow the discharge of claims he possessed against Gambler. In October of 1979 Gambler filed a lawsuit for defamation against Pottinger.³ This lawsuit was settled, however, in a complex agreement in which, among other things, Gambler acknowledged that his suit was groundless and executed a promissory note to Pottin-ger in the amount of $5,000.' In return, Pottinger agreed not to pursue the claims of fraud in the bankruptcy proceeding. (May 6) Tr. 6. Pottinger received no money from that proceeding, however, because no assets were discovered. Tr. 104.

At trial, defense counsel attempted to introduce these past proceedings, stating to Pottinger, “I believe you indicated that you initiated a civil suit?” Tr. 102. Upon objection, defense counsel explained the necessity for his proposed inquiry:

it is a matter of showing his hostility toward Mr. Gambler in connection with the type of claims he asserted and his bias against Mr. Gambler, which in turn I think is legitimate for the jury to consider in evaluating his testimony. This is what he thought he was entitled to, this is what he sued for and he has not received a penny.

Tr. 104 (emphasis added). Although noting “some relevance” of the inquiry to bias, the judge ruled that “its relevance is outweighed by confusion of the issues, particularly now that we have to get into the question of bankruptcy, what happened to the bankruptcy proceeding, why it was discharged, and so on.” Describing the inquiry as “too far removed,” the judge sustained the prosecutor’s objection.

In attempting to explore the concluded litigation, defense counsel appeared most intent, at trial and in this court, upon having the jury learn of the amount of damages sought by the complainant in the three different contexts, perhaps to reflect the large measure of animosity allegedly possessed by the witness against the defendant. Were this information introduced, however, the prosecution might well have sought to reexamine Pottinger, and other lawyers employed by him, to establish the validity of the damages sought in the complaint. Balancing the questionable probative value of this amount as indicative of the witness’s hostility versus the delay and confusion of the issues resulting from such an extended inquiry, the district court did not abuse its discretion in excluding this evidence. See State v. Ballas, 41 Conn.L.J. 47 (1980); Brooks v. State, 259 Ind. 678, 291 N.E.2d 559, 560 (1973).⁴

We believe, however, that the district court did err in sustaining an objection to the initial inquiry made by defense counsel on the subject of Pottinger’s lawsuits against the defendant. In so ruling we do not stray from our belief that this case is not controlled by Villaroman. Rather, the rationale for our decision is the same as in any other case where the defendant seeks to establish the hostility, and thereby possible bias, of a witness for the prosecution: the defendant must be allowed, either through cross-examination or admission of extrinsic evidence, to set out for the jury the basic facts from which the jury may infer hostility. Pottinger’s initiation of legal action may be profitably compared with the existence of a quarrel between him and Gambler. Cf. Greatreaks v. United States, 14 Alaska 610, 211 F.2d 674, 676 (9th Cir. 1954). That hostility may be inferred from such a “quarrel” seems to us a reasonable possibility; the exclusion of such discrediting evidence from the view of the jury was therefore erroneous.

We are not unsympathetic to the position in which the district court found itself. Defense counsel sought to explore much more than the bare facts of the litigation between Pottinger and Gambler. See page 838 supra. The court thus believed itself forced either to allow defense counsel to plunge ahead with his involved exploratory cross-examination or to halt the inquiry ab initio. Although we are loathe to second-guess district courts on such evi-dentiary matters, we believe that a proper balancing of the defendant’s right of cross-examination with the factors of delay and confusion, factors properly considered by the district court, would have resulted in the allowance of a limited examination on this point. As this court has previously stated:

Our decisions reflect great solicitude for an endeavor by the accused to establish bias on the part of a prosecution witness. They establish the propriety of the showing either by cross-examination or by extrinsic evidence, and indicate the broad range over which the inquiry may extend. We have admonished, however, that when the accused has been afforded a reasonable opportunity to make the point, the trial judge has discretionary authority to limit the scope of the proof. And courts have traditionally exercised their inherent power to confine the impeaching effort to evidentiary items possessing a potential for connoting bias.

Austin v. United States, 418 F.2d 456, 459 (D.C.Cir.1969) (footnotes omitted).

This case does not present a question of the trial judge’s control over the testimonial scope of cross-examination. See United States v. Slade, 627 F.2d 293 (D.C.Cir.1980). Instead, the trial judge here foreclosed any inquiry into Pottinger’s unsuccessful litigation against Gambler. Our finding of error does not, however, mandate reversal of appellant’s conviction. In this case the district court’s failure to allow defense counsel to establish the existence of the witness’s prior lawsuits did not affect the substantial rights of the accused and was harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Here the jury was fully aware that Pottinger had not received either any of the furnishings ordered or any return of the deposits placed with the defendant. Tr. 47-48. The jury may even have been aware that Pottinger had sued Gambler, through a reference by Pottinger himself and, more readily, because of explicit comments made by the defendant. Tr. 119-20, 240-41.

Moreover, the defendant was able to present to the jury evidence of Pottinger’s pecuniary interest in the outcome of the trial. The district court, recognizing that the possible financial stake of a witness in the outcome of a case is an appropriate subject for cross-examination, Wheeler v. United States, 351 F.2d 946, 947 (1st Cir. 1965), allowed defense counsel to inquire into possible tax deductions available to Pottinger for the losses incurred through transactions with the defendant and the effect of the defendant’s conviction upon that availability. The jury was thus given reason to question the disinterested nature of Pottinger’s testimony, especially in light of the court’s explicit instruction on that testimony.⁵ Under these circumstances, we believe that the relevance and probative force of the excluded evidence was insufficient to require reversal of appellant’s eon-viction. Harris v. United States, 371 F.2d 365, 367 (9th Cir. 1967).

Dicta in some cases suggest that erroneous restriction of a defendant’s cross-examination of a Government witness mandates reversal of the conviction without consideration of the relative harmlessness of the error. See, e. g., United States v. Uramoto, 638 F.2d 84 (9th Cir. 1980). This language apparently stems from a sentence in the Supreme Court’s opinion in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The Court stated: “Petitioner was thus denied the right of effective cross-examination which ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.’ ” Id., 415 U.S. at 318, 94 S.Ct. at 1111. We believe, however, that the Supreme Court did not intend that even a “minor lapse” committed by the trial court in limiting cross-examination, Douglas v. Alabama, 380 U.S. 415, 420, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965), requires reversal, and, as explained below, we agree with those courts that have refused to apply a per se rule of reversal in such circumstances. E. g., United States v. Price, 577 F.2d 1356 (9th Cir. 1978), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979); ⁶ United States v. Brown, 546 F.2d 166 (5th Cir. 1977); United States v. Duhart, 511 F.2d 7 (6th Cir.), cert. dismissed, 421 U.S. 1006, 95 S.Ct. 2409, 44 L.Ed.2d 675 (1975).

In Davis, the Court held that a state interest in preserving the confidentiality of juvenile adjudications of delinquency must give way to the defendant’s right of cross-examination guaranteed by the confrontation clause. The trial court had foreclosed inquiry into the probation status of the Government’s only eyewitness, seventeen year-old Richard Green, who had identified the accused near the scene of the crime. Defense counsel sought to question Green on his probation status to suggest not only that he had made a hasty identification to shift suspicion away from himself but also that he had made the identification under fear of possible probation revocation. In rejecting the state supreme court’s conclusion that counsel had conducted cross-examination sufficient to develop the issue of bias, the Court stated as follows:

While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a “rehash” of- prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which “ ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968).

Davis, 415 U.S. at 318, 94 S.Ct. at 1111.

Davis was the first case in which the Court explained an accused’s right of confrontation in terms of “effective” cross-examination. It can be read to establish the principle that the denial of “effective” cross-examination is per se reversible error. The analysis undertaken by the Court makes clear, however, that not every erroneous limitation of cross-examination would constitute a denial of effective cross-examination. 415 U.S. at 317-18, 94 S.Ct. at 1110 — 1111. Where, as here, the evidence sought to be presented to the jury is of such limited relevance and minimal probative force, we believe that Davis permits the conclusion that the trial court’s error is to be evaluated under the harmless error standard set forth in Chipman. Prior to Davis, the Court had explicitly applied this standard to confrontation clause violations. See, e. g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See generally United States v. Price, 577 F.2d at 1362-64; Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant’s Favor: The Implications of Davis v. Alaska, 73 Mich.L.Rev. 1465 (1975).

We do not apply the doctrine of harmless error lightly. In most cases, it may well be that an erroneous initial limitation upon cross-examination of an appropriate area could not be found harmless. In this case, however, we believe, beyond a reasonable doubt, that no juror would have been swayed by whatever suggestions of hostility and consequent implications of bias might have arisen from the knowledge that the witness had undertaken profitless civil litigation against the defendant on the matter in question.⁷ The jury’s knowledge of the witness’s pecuniary interest in the outcome of the trial, as made explicit by the court in its instruction, provides further support for this conclusion.

Appellant received a fair trial; the trial court’s rulings to which he takes exception give us no cause to overturn his convictions. Although we, like the district court, may question the propriety of the prosecutorial discretion exercised in this case, see (July 7) Tr. 3-5, we have discovered no reversible error in this proceeding. The judgment of the district court is therefore

Affirmed.

1 . The statutes under which appellant was charged provide in pertinent part as follows:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communications in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined ... or imprisoned ....

18 U.S.C. § 1343 (1976) (wire fraud).

(a) Whoever, by any false pretense, with intent to defraud, obtains from any person any service or anything of value . . . shall . . . be imprisoned....

D.C.Code Ann. § 22-1301 (1973) (false pretenses).

If any person entrusted with the possession of anything of value, including things savoring of the realty, for the purpose of applying the same for the use and benefit of the owner or person so delivering it, shall fraudulently convert the same to his own use he shall, where the value of the thing so converted is $100 or more, be punished by imprisonment ... or by a fine....

D.C.Code Ann. § 22-2203 (1973) (larceny after trust).

2 . Gambler also argues that the count charging larceny after trust from Cohen should have been severed from the other four counts of the indictment. We find no merit in this argument. Federal Rule of Criminal Procedure 8(a) clearly allows the joinder of two or more offenses of the same or similar character. Furthermore, the district court did not abuse its discretion in denying the motion for severance under Federal Rule of Criminal Procedure 14, where the evidence would have been mutually admissible in separate trials. Fed.R.Evid. 404(b). See generally United States v. Lewis, 626 F.2d 940, 944-45 (D.C.Cir.1980).

Appellant has made contentions other than those addressed in this opinion that we have examined and found without merit.

3 . (May 6) Tr. 5. The facts of this suit and its settlement are based upon the representations made by counsel for Pottinger in open court.

4 . The dissent would have us assume that district courts regularly exercise their discretion to admit evidence of the damage amount pleaded in civil complaints in circumstances such as the one presented here. Because we believe that evidence of this type is generally of minimal probative value, resulting inevitably in confusion of the issues and delay, we cannot join such an assumption. Instead, we believe that, on the facts of this case, a judgment to exclude evidence of the damage amount would be dictated by common sense and an awareness of the practicalities of human conduct. We are confident, moreover, that district courts, while never relaxing their vigilant protection of the rights of defendants, will continue to exercise their considered judgment on such matters.

5 . Mr. Pottinger said, as 1 recall it, that it was his intention to claim a deduction on his income tax return for 1979 as a result of not receiving the furniture that he had ordered from the defendant. Under the law Mr. Pot-tinger is not entitled to any deduction on his income tax return just because he might have , suffered a financial loss in this commercial transaction. He would be entitled to a deduction from his taxes if that loss was the result of a theft or larceny or criminal fraud or false pretenses. Mr. Pottinger would not have to show to the Internal Revenue that Mr. Gambler committed these offenses particularly, but if he did make a claim that a theft occurred, a conviction of this defendant of one or more of these charges, would obviously support any claim by Mr. Pottinger for a tax deduction. Accordingly, he does have a financial interest in the outcome and you may consider that fact in your consideration and weighing of his testimony just as you consider any interest anybody else may have in the outcome of the case in weighing their testimony.

Tr. 328.

6 . Different panels of the Ninth Circuit offer varying interpretations of the intersection of harmless error doctrine and the confrontation clause. Compare United States v. Price, 577 F.2d 1356 (9th Cir. 1978), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979) with Patterson v. McCarthy, 581 F.2d 220 (9th Cir. 1978) with United States v. Uramoto, 638 F.2d 84 (9th Cir. 1980) with Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980). In Chipman the court admitted the “seeming harshness” of confrontation clause doctrine that “appears to require reversal if there is any error, whether the error was harmless in the particular case . . . . ” Id. at 533 (emphasis added). This court goes on to observe, however, that

a confrontation clause violation generally does not occur unless the denied area of cross-examination is one of considerable relevance. Degree of relevance, in turn, bears a close relation to whether denial of confrontation was prejudicial. . . . The automatic reversal rule is not, therefore, entirely divorced from considerations of prejudicial error in its

ultimate operation, even if it is so in its bare statement.

Id. We believe that such an analysis supports the view that not all erroneous restrictions upon cross-examination mandate a new trial for the accused.

7 . We find Wynn v. United States, 397 F.2d 621 (D.C.Cir. 1967), distinguishable on its facts. There this court reversed a conviction because of the failure of the trial court to allow testimony by the defendant on a quarrel that had allegedly taken place between him and the Government’s star witness. The Government witness had previously denied the existence of the quarrel on cross-examination. The case at hand is different in that cross-examination on this witness’s pecuniary interest did take place and the probative force of the testimony excluded here is demonstrably less (in Wynn, the Government witness had allegedly threatened to “get even” with the defendant). Furthermore, the basis of this “quarrel” between Pot-tinger and Gambler was clearly placed before the jury.