By this appeal, Frank Colacurcio seeks reversal of the district court's adjudication of his guilt of conspiracy to violate (Count I) and the violation (Counts II, III, IV and V) of the 'travel' section of the Anti-Racketeering Act (18 U.S.C. 371, 18 U.S.C. 1952)1 and of the district court's orders denying him a new trial.

Briefly stated, Count I of the indictment charged that Colacurcio, together with co-defendants Charles Berger and Harry Hoffman, conspired to open and conduct bingo games in Seattle, Washington, in violation of the penal laws of that State. Included in the count are allegations that the three persons, in furtherance of the conspiracy, used the facilities of interstate commerce to bring gambling paraphernalia to Seattle from the State of Colorado; that Berger managed and operated the illicit gambling enterprise; that Colacurcio secured local police protection for it; and that Hoffman organized bingo clubs.

Counts II, III, IV and V each specified a separate occasion when the accused utilized interstate facilities to order and transport equipment used for gambling.

The charges were tried to the court, sitting without a jury. Berger was granted immunity and dismissed from the case in return for his testimony as a witness for the prosecution. Hoffman was acquitted; but Colacurcio was found guilty on all five counts.

We will group related assignments together and discuss them under appropriate headings.

1. The Prosecution's 'Interference with Counsel'

Several months after the indictment was returned, one of the government's key witnesses, Betty Luke, came to the district attorney with a story which suggested that Colacurcio and a lawyer, now deceased, not Colacurcio's, had met with her for the purpose of discussing a bribe not to testify. The district attorney had thereupon subpoenaed Ronald G. Colacurcio's chief counsel, Neubauer, to appear before a grand jury and there interrogated him about the matter. Neubauer immediately complained to Judge Solomon, the then presiding judge, who, after severely reprimanding the district attorney, warned him that the case would be dismissed if he called Neubauer as a witness or attempted to use his grand jury testimony at the up-coming trial.^**

When the case, in due course, was thereafter assigned for trial to Judge Powell, Colacurcio formally moved for dismissal.^*** He urged that the district attorney, by calling and interrogating Neubauer, had materially impaired the latter's ability to function as defense counsel and thus violated Colacurcio's constitutional right of due process and to effective representation by counsel. / 2/ Judge Powell held a hearing. After considering the lengthy affidavits, the transcript of the grand jury inquisition and the other written statements submitted for in camera inspection, Judge Powell denied the motion. 2A

We fully share the views expressed by Judge Frankel in Re Terkeltoub, 256 F. Supp. 683 (D.C., S.D.N.Y.1966), that generally it is grossly improper for a district attorney to seek to compel a lawyer to testify concerning his work in preparing a defense for his client. The likelihood that this drastic move will have at least a slightly chilling impact upon the lawyer's advocacy is indeed great, but more important, perhaps, is the invasion of the lawyer's privacy in his preparation. Any such inquiry can ordinarily be deferred to a less critical time without seriously hampering the district attorney in fulfilling his duty to protect the integrity of the judicial process.

We nevertheless are not persuaded that Judge Powell's ruling requires a reversal. Judge Powell, in this case, unlike Judge Frankel in Terkeltoub, had before him both the lawyer's grand jury testimony and the materials presented in camera; here the inquisition was a fait accompli, while in Terkeltoub it was simply incipient; and, likewise, here Judge Powell entertained and considered the in camera matters which Judge Frankel had rejected (although with the significant observation that, 'It is possible, of course, that further information could lead to a changed conclusion.' (p. 686)).

From our own study of all these materials, we are satisfied, as was Judge Powell, that the inquiry extended wholly to matters collateral to the criminal case and that Neubauer's professional talents were in nowise appreciably impaired. 2B

The day before trial was to begin, Hoffman, Colacurcio's codefendant, was unexpectedly stricken with a heart attack and taken to a hospital. However, through his lawyer he expressed the wish that the trial not be postponed but that it proceed against him in absentia, 'even if the result is a conviction.'

After much consideration of the problem, Colacurcio also decided not to seek a postponement and to immediately proceed without a jury. Both he and Hoffman filed the necessary waivers. After eight days of trial, the respective parties had submitted all their evidence, save for that which Colacurcio expected to adduce from Hoffman. Judge Powell thereupon declared an indefinite recess until such time as Hoffman was physically able to give testimony. But Hoffman's condition continued unchanged. Four months later, when the fact was manifest that Hoffman could never appear or testify, Judge Powell terminated the recess and, over Colacurcio's objection, proceeded with the trial to its conclusion. He acquitted Hoffman, and as noted earlier, found Colacurcio guilty on all counts.

Colacurcio's written 'Waiver of Jury Trial' is concise and unequivocal.3 Nevertheless, he contends that it should be treated as conditional only, the condition being Hoffman's giving of testimony.

Colacurcio likens his position to that of the plea bargainer in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1941). He points out that 'every plea bargain involves the waiver of a trial by jury conditioned upon the happening of a subsequent event. In the plea bargain cases, the waiver of trial by jury is the guilty plea. The condition subsequent is the promise by the prosecutor . . .' concerning sentence, etc. He argues that here, when the future event could not occur, his waiver became ineffective. We are not persuaded. The 'unkept promise of the prosecutor' in Santobello has no counterpart in this case. Fault cannot be attributed to either the prosecutor or the judge. Hoffman's physical condition obviously was beyond the control of either the judge or the prosecutor. With commendable candor, Colacurcio concedes that when the waiver was entered, everyone stood on an equal footing and that they did not discuss what the effect might be of Hoffman's permanent testimonial disability.4 The hard fact emerges that the contingency was simply not contemplated at all, and nothing in this record justifies the engrafting of any condition onto the waiver. In sum, and as succinctly stated in United States v. Sadrzadeh, 440 F.2d 389, 390 (9th Cir. 1971):

'We cannot accept the contention that (appellant) was entitled to start over again at the end of the government's case with a jury and not a judge when his wife Toni chose to plead guilty. Both had previously intelligently waived a jury. The trial court simply has to get on with its business and cannot give parties first a practice trial before the court and then summon a jury.'

Colacurcio is simply mistaken in his contention that (a) Section 1952 does not apply to this bingo operation because 'the bingo clubs were local in nature and . . . all of the supplies used in these clubs were available from Ace Novelty Co. of Seattle . . ..' and in his related contention that (b) the statute is limited to those who engage in 'organized interstate criminal activities' and is 'aimed at interstate racketeers conducting an unlawful business in one state while living in another.' United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), contains an exhaustive exposition of the purpose and coverage of the statute; and what we said there about those matters will not be repeated except for the following quotation: 'It is quite clear that in enacting Section 1952, Congress was not concerned with regulating interstate travel or the use of interstate facilities, but rather with directly suppressing unlawful local activities from which organized crime drew its sustenance.' (Roselli, supra, p. 891.)

In this regard, too, Colacurcio's further contention to the effect that the government failed to prove that he conspired to violate 'federal law' is likewise fallacious. Of course, such proof was essential to a conviction. Pereira v. United States, 347 U.S. 1, 12, 74 S. Ct. 358, 98 L. Ed. 435 (1953). But a finding of guilt did not require proof that the conspirators agreed to use interstate facilities to advance their conspiratorial purpose to violate the Washington anti-gambling law: '. . . the knowing use of interstate facilities is not an essential element of either the substantive offenses or the conspiracy to commit them; . . ..' United States v. Roselli, supra, p. 890. However, we do note that the record contains evidence sufficient to support a finding that the parties had agreed to order gambling paraphernalia from the State of Colorado.

Judge Powell was correct in ruling that Colacurcio lacked standing to challenge the legality of the search of the Lifeline Club and in permitting the use as evidence against him of the incriminating records and other papers incidentally seized. Colacurcio was not a person 'aggrieved' (Rule 41(e), F.R.Crim.P.): He was not, as in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), charged with a 'possessory' crime and hence entitled to 'automatic' standing; neither was he on the club premises at the time of the search, not did he establish any proprietary or possessory interest in the seized property.6 Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1972), applies.

As one of his many grounds for new trial, Colacurcio asserted that Betty Luke had given perjured testimony. His showing in support of the motion was not contained in an affidavit by Luke herself but was the more common recantation 'once removed'-- i.e., the sworn statement of third parties to the effect stated. But despite Colacurcio's weak showing in support of his motion, Judge Powell conducted a hearing.7 Luke appeared as a witness. She flatly denied the accusation of perjury and reaffirmed the truth of her trial testimony. Judge Powell credited her. For that reason it is immaterial that his oral formulation of the legal standard for granting a new trial departs in a measure from the one generally approved. United States v. Johnson, 327 U.S. 106, 66 S. Ct. 464, 90 L. Ed. 562 (1946).

Moreover, the finding of non-perjury rendered Colacurcio's proof of recantation simply impeaching. This latter type of evidence 'is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial.' Mesarosh v. United States, 352 U.S. 1, 9, 77 S. Ct. 1, 5, 1 L. Ed. 2d 1 (1956).

The record does indeed reveal that the district attorney did not produce for Colacurcio's inspection all recorded statements and documents of the witness Luke, to which Colacurcio was entitled under the Jencks Act.^**** However, a comparison of those withheld with those actually produced discloses that the statements in all of them are consistent with each other and are uniformly the same. Thus the conclusion is manifest that inspection of the withheld materials would not have afforded Colacurcio any real aid in his defense. / 8/

Colacurcio's syllogism as it relates to his demand to inspect the fruits of the investigative activities of F.B.I. agents Friang and Smith lacks its essential major premise. In their affidavits the agents deny taking notes of their conversation with and making a report of their interview with the witness Luke. These statements are unchallenged. Neither was the district court required, as a pre-condition to deciding Colacurcio's motion for inspection, to hold an evidentiary hearing on the issue and permit Colacurcio to cross-examine the agents. What we said in United States v. Clay, 476 F.2d 1211, 1216 (9th Cir. 1973), is relevant: 'Assuming the trial court, in its discretion, may hold an evidentiary hearing, we hold that the trial court here did not abuse that discretion.'

Colacurcio's remaining points are not of sufficient substance to warrant discussion.

The judgment is affirmed.