LUMBARD, Circuit Judge.
Defendants appeal from judgments of conviction entered against them after a jury trial in the Eastern District of New York. Tomaiolo was convicted on three counts: (1) conspiring with Louis Soviero, Abraham Nirenberg and Salvatore Catapano to rob the State Bank of Suffolk, in Brentwood, New York, on November 29, 1955; (2) bank robbery of $35,033.07 in cash and $6,290. in negotiable travelers checks; and (3) putting in jeopardy the lives of the bank employees during said robbery, in violation of 18 U.S.C.A. §§ 371, 2113, 2113(a) and 2113(d). Soviero was convicted on three counts: (1) for the conspiracy to rob the bank; (2) aiding and abetting the robbery; and (3) as an accessory after the fact, in violation of 18 U.S.C.A. §§ 2, 3, 371 and 2113.
The principal witness for the government was Mrs. Pauline Katz, who had been Abraham Nirenberg’s mistress and an active participant in the conspiracy although she was not indicted and was not named as a co-conspirator.
There was ample evidence from which the jury could find the guilt of the defendants: Commencing in early November 1955, Nirenberg and Tomaiolo planned the robbery of the State Bank of Suffolk at Brentwood in Suffolk County, New York, which they finally committed on November 29, 1955. Some days before, Tomaiolo, Nirenberg and Mrs. Katz drove to the vicinity of the bank and Mrs. Katz went in and changed a $10 bill so that she could describe to Tomaiolo and Nirenberg the physical layout of the bank.
Louis Soviero arranged to have two of his nephews steal a black Buick sedan for use as the getaway car. To this car Soviero attached some license plates which his brother had secured under an assumed name. At the last minute Louis Soviero had a change of heart and said that he could not join Tomaiolo and Nirenberg in the robbery, but he did turn over to Nirenberg the stolen Buick. Tomaiolo and Nirenberg then decided to use a submachine gun in place of a third confederate and Tomaiolo arranged for it and Nirenberg picked up and paid for the machine gun the day before the robbery.
On the day of the robbery Tomaiolo, Nirenberg and Mrs. Katz drove out to Central Islip to the vicinity of where Nicholas Tomaiolo, Charles Tomaiolo’s brother, worked as a presser in a clothing establishment. Charles Tomaiolo left his car there and Nirenberg took Nicholas Tomaiolo’s blue Plymouth. Tomaiolo and Nirenberg then drove to the Brentwood bank in the stolen Buick while Mrs. Katz waited in the blue Plymouth at a point one mile from the bank and three blocks from Nicholas Tomaiolo’s home. About 2 P.M., revolver in hand, Nirenberg entered the bank accompanied by a smaller man who brandished a machine gun. Although his confederate wore a snap brim cap and kept his face hidden with a yellow glove so that only his eyes, eyebrows and sideburns were visible, there was an abundance of evidence, particularly the testimony of Mrs. Katz, from which the jury could conclude that the masked robber was Charles Tomaiolo. Nirenberg and Tomaiolo forced the bank manager, two tellers, and a customer into the back room and they took $35,033.07 in cash and negotiable travelers checks totaling $6,290. They then made their getaway in the stolen Buick.
When Tomaiolo and Nirenberg returned to the rendezvous where Mrs. Katz was waiting in the blue Plymouth, they left the stolen Buick in the bushes, changed their clothes and all three drove away in the Plymouth to the nearby home of Nicholas Tomaiolo. In their haste they had no time to remove the tell-tale license plates from the stolen car. Upon arrival at Nicholas Tomaiolo’s they were seen by Mrs. Patricia Jennings who lived directly across the street. Here Tomaiolo, Nirenberg and Mrs. Katz got out and went into the house. The following day, November 30, at Nirenberg’s apartment, Tomaiolo and Nirenberg di[686]*686vided the loot after giving Soviero $140. Three days later Mrs. Katz delivered $200. more to Soviero for the men who had stolen the Buick. Of this $200. Soviero’s nephews, Frank Labocetta and Vincent Boccia, each received $75. from Soviero.
Shortly after the robbery the machine gun was concealed at 70 East 92nd Street, Brooklyn, in the basement apartment of Salvatore Catapano. Sometime in December Nirenberg and Soviero moved the machine gun from one place to another in the apartment and finally when they left New York for Florida in late January they took the machine gun with them in the trunk of Nirenberg’s car.
Two months later, when Tomaiolo was taken into custody by the police on January 23, 1956 for a parole violation the nature of which does not appear, Nirenberg and Mrs. Katz moved to a Brooklyn hotel under an assumed name. The next day, they, together with Louis Soviero, left New York and drove to Miami and to Covington, Kentucky and finally to Buffalo, New York where they stayed under various assumed names at Nirenberg’s expense.
On February 12, 1956, FBI agents arrested Soviero and Nirenberg in Buffalo. Mrs. Katz immediately became a government witness and after her testimony before the grand jury on February 21, 1956, Tomaiolo and Soviero were indicted together with Salvatore Catapano and Nirenberg. Catapano pleaded guilty to a count charging him with being an accessory after the fact. On the government’s motion Nirenberg was tried separately and convicted and on appeal we affirmed the conviction, United States v. Nirenberg, 2 Cir., 242 F.2d 632, certiorari denied 1957, 354 U.S. 941, 77 S.Ct. 1405, 1 L.Ed.2d 1539.
Tomaiolo complains particularly of five errors regarding the admission of evidence and the conduct of the trial: (1) his cross-examination as to certain parole violations as an attack on his credibility; (2) the cross-examination of his brother, Nicholas Tomaiolo, to show that the witness had claimed his Fifth Amendment privilege when questioned before the grand jury; (3) the cross-examination of Nicholas Tomaiolo regarding A.W.O.L. violations while he was serving in the Army; (4) the action of the District Judge in moving the trial some sixty miles to take the testimony of the government witness, Mrs. Patricia Jennings, in the basement of her home; and (5) the summation of the Assistant United States Attorney wherein he argued that Pauline Katz had told Maurice Edelbaum, Tomaiolo’s attorney, that Tomaiolo was guilty and that this was the reason that Mr. Edelbaum refused to advise her.
Soviero complains of three errors: (1) the government’s repeated allusions to his criminal record; (2) the action of the District Judge in compelling the witness Eileen Calvo to testify despite her claim of privilege under the Fifth Amendment, which claim of error we do not find necessary to discuss in view of our disposition of Soviero’s appeal; and (3) the government’s refusal to turn over certain Federal Bureau of Investigation reports to Soviero for purposes of cross-examination of FBI Agent Liddy, which we need not consider in view of 18 U.S.C. A. § 3500 recently enacted into law after the decision in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 2d 1103.
The Defense
Charles Tomaiolo took the stand in his own behalf and denied any participation whatsoever in the robbery or any knowledge of it. He stated that on the day of the robbery, November 29, he was at home suffering from ulcers and he produced witnesses to support his alibi — a woman who testified she was nursing his mother-in-law at the time and a friend of his mother-in-law. The testimony of the nurse was rebutted in part by the mother-in-law’s doctor who was called by the government.
Charles Tomaiolo denied ever having been to his brother’s home with Nirenberg and Mrs. Katz. He admitted that he had known Nirenberg since they had been in state prison together in about 1945, that he had met Mrs. Katz and [687]*687that he had seen both Nirenberg and Mrs. Katz on numerous occasions.
In addition to this evidence, Charles Tomaiolo’s brother, Nicholas, took the stand and testified that the appellant, Charles Tomaiolo, Nirenberg and Mrs. Katz had not visited his home on the evening of the robbery and that they had not borrowed his car. He testified that Nirenberg and Mrs. Katz had never visited his home although he admitted that they had come out to see him at his place of business to buy some coats.
Louis Soviero did not take the stand and called no witnesses in his defense.
I. Errors as to the defendant Charles Tomaiolo
A. The cross-examination of the defendant Charles Tomaiolo
Charles Tomaiolo complains that the Court permitted cross-examination about acts which he had allegedly committed while confined to prison for a previous offense, about acts in violation of the rules of the New York State Parole Board while he was on parole, and about his association with persons who had criminal records. In our opinion all of this evidence was erroneously admitted. We also find numerous other errors with respect to the conduct of the Assistant United States Attorney in cross-examining Tomaiolo, and with respect to the .admission of evidence. We do not hold that any one of these errors by itself would require a reversal of Tomaiolo’s conviction. What we do hold is that in the aggregate these errors made it impossible for the defendant to be fairly tried.
First, after Tomaiolo had testified on direct examination that in 1941 he had pleaded guilty to the robbery of a candy store, the Court permitted lengthy and needlessly detailed examination into the circumstances of the robbery. This included such details as how many people were involved with him, how he was apprehended, how many bullets he had in his pocket when he was arrested, and how many of his co-defendants were charged with armed robbery. This examination even went to the length of bringing out, over objection, that in the 1941 case Tomaiolo had been represented by Maurice Edelbaum, the same attorney who represented him at the trial.
We cannot see that any of this detail was relevant to the charge on trial; it went far beyond what was necessary to establish a criminal conviction for the purpose of impeaching credibility. Its obvious purpose and effect was to do more than to impeach defendant’s credibility — it was intended to show that he was a dangerous criminal. Although the degree to which counsel may dwell on a particular point is within the discretion of the trial judge, it seems to us that here this discretion was not wisely exercised. People v. Slover, 1921, 232 N.Y. 264, 133 N.E. 633; People v. Hawley, 4 Dept. 1955, 285 App.Div. 1009, 139 N.Y.S.2d 489; Little v. State, 1945, 79 Okl.Cr. 285, 154 P.2d 772; see also People v. Du Byk, 1 Dept. 1955, 285 App.Div. 1025, 139 N.Y.S.2d 577, dissenting opinion. Compare, Walker v. State, 1929,151 Miss. 862, 119 So. 796; People v. Guiterrez, Cal.App.1957, 312 P.2d 291.
Further evidence was adduced, over objection, regarding the alleged robbery by the defendant of a gas station in 1941 and how much money had been stolen from the gas station. From this the questioning led to whether he had stated in a form made out many years later for the Waterfront Commission that he had robbed a gas station. In the first place, it was never shown what the defendant had stated on the form. Moreover, for this alleged crime, supposedly committed the same evening as the candy store robbery, defendant had not been convicted, and he denied any participation in such a crime. After such denial and in the absence of proof of conviction, it was error to permit further questioning about the alleged offense. United States v. Nettl, 3 Cir., 1941, 121 F.2d 927.
Secondly, the prosecutor asked a series of questions regarding Charles Tomaiolo’s conduct during the nine years of his [688]*688imprisonment on the 1941 charge. The prosecutor put a question whether a prison inmate whom he had allegedly beat up had gone to the hospital, and upon objection, this was withdrawn.
The Assistant United States Attorney then asked these questions, over objection :
“Q. Did you also burn up some furniture in your cell while you were there? A. No, sir.
* * * * * *
“Q. Did they find you with a knife while you were there?
******
“A. No, sir.
******
“Q. Weren’t you given 30 days punishment on July 31, 1942 for having a knife in your cell ? A. No, sir. I had a permit for the knife.”
Thirdly, the prosecutor offered, over objection, and the Court received, a copy of the General Rules Governing Parole issued by the State of New York Executive Department, Division of Parole, and this part of paragraph 4 was read to the jury:
“You must conduct yourself as a good citizen. This means that you must not associate with evil companions or any individuals having a criminal record; that you must avoid questionable resorts, abstain from - wrongdoing, lead an honest, upright and industrious life, supporting your dependents, if any, and assuming towards them all your' moral and legal obligations * * * ”
The prosecutor also referred to paragraph 8 of the Rules Governing Parole which provided that operating an automobile without a valid license would be considered a violation of parole, a valid license being one secured only after permission had been granted. It was then brought out that the defendant had operated an automobile without such permission.
Fourthly, the prosecutor elicited, over objection, that Charles Tomaiolo had knowingly associated with persons who had previously been convicted of crime. After securing the defendant’s admission that he knew that his friend, Fred Miller, was a convict, the prosecutor brought out that Miller had been convicted and sentenced to a term of 10 to 30 or 10 to 20 years in prison and that they had been in state prison together.
Following this the defendant was asked whether Vincent Soviero, Louis Soviero’s brother, had been in state prison with him. This was objected to but the objection was overruled and the defendant answered that he had been in Auburn State Prison. On the ground that this was prejudicial to Louis Soviero, who was on trial, his counsel moved for a mistrial. Then there followed numerous questions regarding the Soviero family and it developed that the defendant had visited at Vincent Soviero’s home and knew members of the Soviero family. The defendant admitted that he met Louis Soviero at a New Year’s Eve party in 1955 at which his wife, Nirenberg and Mrs. Katz had also been present. The prosecutor then attempted to show that prior to this time the defendant had met Louis Soviero at the home of his brother Vincent. The defendant admitted that he had met other members of the Soviero family there but stated he had not met Louis there. This line of inquiry ended with this question and answer:
“Q. So you met Charlie there and you met his sister there and you met Vincent there, but you never met Louis there? A. Sir, he was in prison at the time.”
Louis Soviero’s counsel promptly moved for a mistrial which was overruled by the District Judge who at the suggestion of the prosecutor instructed the jury to “[disregard the last statement.”
The prosecutor then attempted to show that the defendant was acquainted with another convict named “Charlie Whoppy.” In the colloquy which followed, the prosecutor, in an attempt to justify going into these matters, stated that it was a misdemeanor to associate with criminals. Tomaiolo’s counsel took immediate exception to this pointing out [689]*689among other things that the prosecutor as a former Assistant District Attorney of Kings County should have known better. After a ten minute recess, requested by the prosecutor, and a discussion before the Court off the record, the Court ended this line of examination by merely stating that under the New York Penal Law (McK.Consol.Laws, c. 40) associating with people who have a criminal record is not a crime or a misdemeanor. No instruction was given at this time or in the Court’s charge to the effect that this evidence regarding association with criminals should be entirely disregarded. The District Judge merely said in a supplemental charge: “These alleged violations of parole regulations * * * may not be considered as affecting [Tomaiolo’s] credibility * * * ” Of course this implied that this testimony did have some relevance, and it may well have aggravated the damage to the defendant.
The evidence about breaches of alleged prison discipline, about friendships with people with prison records, and about alleged parole violations should not have been admitted.
It was of course proper for the government to inquire into the defendant’s relationship with Louis Soviero and to develop the defendant’s acquaintance with the Soviero family to show that he must have known Louis at the time of the robbery. The defendant admitted knowing Vincent Soviero. But no proper purpose was served by bringing out the fact that Vincent Soviero had a criminal record, for it was not necessary to do so to establish their acquaintance. Moreover, the prosecutor led into this subject by inquiring whether the defendant had met Vincent Soviero when he was in prison. This was unnecessary and it was most prejudicial to defendant Tomaiolo as it was followed by other questions designed to show that he kept company with persons who he knew had been convicted of crime. That he kept such company was not relevant on the question of Charles Tomaiolo’s credibility. It was not a crime.
Even if keeping such company was a violation of the terms of the defendant’s parole, such a violation was not an offense relevant to his credibility. Cf. United States v. Provoo, 2 Cir., 1954, 215 F.2d 531, 536; Henderson v. United States, 6 Cir., 1953, 202 F.2d 400, 405.
. The government now argues, however, that Tomaiolo by reason of the reference to his parole in the opening statement of his attorney and by his own supporting testimony, had in effect put his character in issue and that the cross-examination regarding parole violations was therefore permissible.
But it is clear that the opening statement of counsel for the defendant could not have put the defendant’s character in issue. Such a statement has no evidentiary value, and therefore does not call for or justify cross-examination or rebuttal evidence. An instruction from the Court or argument of counsel is sufficient correction, not the introduction of otherwise inadmissible evidence.
Nor did the defendant by testifying put his general character in issue. By taking the stand the defendant elected to be treated as any other witness, viz. he laid his credibility open to attack. Although a prosecutor may bring in evidence as to the truth and veracity of a defendant upon cross-examination, he is not at liberty to attack his general character. The general character of a defendant is put in issue only when he calls witnesses to testify to his reputation in general. Michelson v. United States, 1948, 335 U.S. 469, 476 et seq., 69 S.Ct. 213, 93 L.Ed. 168; Richardson, Evidence § 154 (8th Ed. 1955 Prince). The testimony of the defendant about his parole, and the circumstances thereof, did not “open the door” for the prosecutor’s questions. United States v. Provoo, supra, 215 F.2d at page 535. In the Provoo case, we held that cross-examination regarding the defendant’s confinements in army stockades and hospitals, which the government brought out were due to his homosexual aberrations, constituted reversible error, even [690]*690though on direct examination the defendant virtually told his life story including the fact of these confinements.
For the same reasons, questions regarding offenses against prison discipline during the defendant’s nine year incarceration from 1941 to 1950, for which there had obviously been no separate conviction, and which were not felonies or crimes involving moral turpitude, should not have been permitted.
Fifth. Further along the prosecutor attempted to elicit from the defendant what he had told his counsel and his wife and when he had first made disclosures to them particularly with respect to where he was on November 29. These questions were pressed to the point of compelling the defendant’s counsel several times to advise the defendant that these were privileged communications, thus making it appear to the jury that evidence which might be damaging was being kept from them. By repeatedly asking these questions before the jury and attempting to place the defendant in a false light by compelling him to claim the husband-wife and the attorney-client privileges, the prosecutor deliberately and improperly prejudiced the defendant’s position. It was error for the District Court to permit such repeated questioning and colloquy before the jury.
Lastly, the prosecutor in the course of inquiring into why an automobile had been registered in the name of the defendant’s wife, inquired into and pressed questions regarding the nature of family troubles of the defendant’s brother-in-law. Although counsel objected on the ground that family trouble of a brother-in-law was going somewhat far afield, the Court overruled the objection and permitted further questions. While this was probably so meaningless as to be innocuous it shows how far into irrelevancy the prosecutor was permitted to roam.
In summary, by receiving this mass of inadmissible, irrelevant and highly prejudicial testimony, the District Court permitted the prosecution to paint the defendant Tomaiolo as a bad man, associating with criminal companions, who would do most anything. The accumulation of these errors made it impossible for the jury to limit its consideration to the charges for which Tomaiolo was being tried, and, in sum, they constitute reversible error.
B. The impeachment of Nicholas Tomaiolo
To bolster his defense, Charles Tomaiolo also called his brother, Nicholas, who testified that he had never lent his car to Nirenberg and that neither Mrs. Katz nor Nirenberg had ever been to his home. The importance of Nicholas Tomaiolo’s testimony is obvious. Had the jury believed Nicholas Tomaiolo, they would have had to reject some of the testimony of Pauline Katz, the most important government witness linking Charles Tomaiolo with the robbery and identifying him as Nirenberg’s confederate, as well as the testimony of Mrs. Jennings. We find that the government’s attempts to impeach Nicholas Tomaiolo were improper in two aspects.
1. The grand jury testimony
Over two months after his brother and the others had been indicted, a period during which the FBI had repeatedly and unsuccessfully sought signed statements from Nicholas Tomaiolo as to the identification of the defendants and Nirenberg, and the alleged loan of his car, Nicholas Tomaiolo was called before the grand jury. On the advice of counsel, who was also counsel for his brother Charles, he refused to answer the questions noted in the margin on the grounds of possible self-incrimination.1
[691]*691At trial, however, Nicholas Tomaiolo testified freely. His story in no way incriminated him; on the contrary he claimed to be innocent of any wrongdoing. On cross-examination the government was allowed, over objection, to bring out that he had refused to testify about the robbery before the grand jury. The government presents two arguments in support of the introduction of the witness’ refusal to testify, neither of which we find tenable.
The government first argues that because Nicholas Tomaiolo’s testimony at the trial did not incriminate him but rather pointed only to innocence, the prior refusal to testify on grounds of self-incrimination was inconsistent with this, and that this alleged inconsistency may be pointed out to attack Nicholas Tomaiolo’s credibility.
Although at first glance, this argument seems not unreasonable, the recent decision of Grunewald v. United States, 1957, 353 U.S. 391, 415-424, 77 S.Ct. 963, 1 L.Ed.2d 931, stresses that such claims of inconsistency are not to be lightly accepted. Insofar as guilt or innocence is concerned, it is clear that claiming the privilege does not imply any guilt which would be at all inconsistent with later protestations or indications of innocence. Grunewald v. United States, 353 U.S. at page 421, 77 S.Ct. at page 982; Ullmann v. United States, 1956, 350 U.S. 422, 426, 76 S.Ct. 497, 100 L.Ed. 511. See also Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 557-558, 76 S.Ct. 637, 100 L.Ed. 692. Insofar as the prior blanket claim of possible incrimination as to all questions is asserted to be inconsistent with subsequent non-incriminatory testimony, it seems to us that in the circumstances of this case, there was no real inconsistency.
Nicholas Tomaiolo was called before the grand jury as the brother of a man already indicted for robbery and as a person who knew he might be implicated to some extent. The FBI had sought statements from him regarding his acquaintance with Nirenberg, Charles Tomaiolo and Mrs. Katz, and about whether he had loaned his car to them on the day of the robbery. With that background, a reasonable choice was to refuse to testify in a grand jury proceeding where he
“* * * was a compelled, and not a voluntary, witness; where he was not represented by counsel; where he could summon no witnesses ; and where he had no opportunity to cross-examine witnesses testifying against him. These factors are crucial in weighing whether a plea of the privilege is inconsistent with later exculpatory testimony on the same questions, for the nature of the tribunal which subjects the witness to questioning bears heavily on what inferences can be drawn from a plea * * * Innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth.” Grunewald v. United States, 353 U.S. at pages 422-423, 77 S.Ct. at page 983.
Moreover, where a witness has a reasonable belief that he may be a defendant himself, which belief Nicholas Tomaiolo could justifiably have entertained, it is perfectly consistent with innocence and with nonincriminatory answers to particular questions to refuse to answer any question at all. Id., 353 U.S. at page 423, 77 S.Ct. at page 983.
[692]*692Thus, we conclude that the fear of incrimination before the grand jury was quite understandable and that the non-incriminatory responses to the particular questions asked at the trial were not inconsistent with the claim.
On the other hand, the introduction of this evidence was bound to affect adversely the jury’s estimate of Nicholas Tomaiolo’s credibility. Introducing the grand jury testimony would almost certainly lead the jury to think that Nicholas Tomaiolo claimed the privilege before the grand jury because he was somehow connected with the robbery, for that is the almost inevitable result of the claim of the Fifth Amendment. Since the only alleged connection presented to them was the loan of his car and its return to his house after the robbery,2 the jury was led to believe that he must have been lying at the trial when he denied those allegations. But, as noted, given the background of the investigations by the grand jury and the FBI, his refusal to answer any questions before the grand jury was understandable even though he may have had no connection at all with the robbery. It thus seems to us that “in the particular circumstances of this case the cross-examination should have been excluded because the probative value on the issue of * * * credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury.” Grunewald v. United States, 353 U.S. at page 420, 77 S.Ct. at page 982, especially in view of the importance of this witness to the defense, and the fact that he was the defendant’s brother.
The government’s other contention is that, assuming Nicholas was innocent of wrongdoing, his claim of privilege in the grand jury was a wanton misuse of the privilege and that such an abuse may be shown at trial as an attack on the witness’ credibility.
But this argument implies that every innocent man who exercises the privilege abuses it. There is no basis for such an assumption in law or in common sense, Grunewald v. U. S., supra, and in the circumstances of his appearance before the grand jury it is clear that Nicholas Tomaiolo’s claim of privilege was not frivolous or in bad faith.
2. Cross-examination regarding court-martial convictions
On direct examination Nicholas Tomaiola testified that he had served in the Army for three years, had received an honorable discharge, and had purchased a home on a G. I. mortgage. On cross-examination the government was permitted to bring out, over objection, that he was twice sentenced to six months for being A.W.O.L. and he twice suffered loss of pay for the same offense. The government contends that the direct examination opened the door for an exploration of the witness’ Army record on the issue of his credibility.
This line of cross-examination was not relevant to what the witness had stated about his Army service and his honorable discharge for it was not inconsistent with anything either stated or implied. Nor is such a breach of military discipline either a felony or a crime involving moral turpitude, see Henderson v. United States, supra, and these are the only types of offense which may be used for general attacks on credibility.
It was therefore error to allow the cross-examination concerning the court martial convictions.
C. The removal of the trial to Mrs. Jennings’ home
The appellants both complain of the removal of the trial on October 23, 1956 to Central Islip, Long Island, 60 miles from the court house, to take the testimony of Mrs. Patricia Jennings at her home.
The trial commenced on October 3, 1956. On October 16, before the government had rested its case, the prosecution for the first time informed the Court and [693]*693defense counsel of the fact that the doctor of the government witness, Mrs. Patricia Jennings, was of the opinion that her pregnancy made it dangerous for her to travel to court. The prosecutor asked to have the Court adjourned to her home on the next day. Counsel for the defendants objected. It so happened that Maurice Edelbaum, counsel for Charles Tomaiolo, was home ill and he voiced his objection in a telephone talk with an associate.
The next morning, October 17, the prosecutor withdrew his request as the doctor had informed him that the birth was imminent. He stated that he wished to reserve the government’s right to make the motion at a later time. Mr. Edelbaum objected to the procedure, stating that the government should have made an application to adjourn the trial if there was some uncertainty as to its ability to produce this witness.
On October 22 the prosecutor renewed his motion to take Mrs. Jennings’ testimony at her home. He then offered in evidence a subpoena which had been served on her on September 27 returnable on October 1. He also produced an affidavit executed by Dr. Charles M. Labozzetta, which is dated October 19. Dr. Labozzetta’s affidavit stated that the birth of Mrs. Jennings’ child, which he had originally expected about August 8, 1956, was “extremely imminent.” The affidavit stated in part:
“In view of this situation, and further complications now existing, it is my opinion that it would be dangerous for the said Patricia Jennings to be required to travel to the Federal Court House in Brooklyn.
“I can see no objection to the patient giving testimony in this case if she is not required to travel.”
Over objections of counsel for the defendants, the District Court granted the motion to convene the Court the next morning at the Jennings home in Central Islip. For that purpose the jury first met in the usual courtroom in Brooklyn at 10:05 A.M. and the District Judge thereupon adjourned the session to Mrs. Jennings’ home. The marshals transported the jurors and the other participants, including the defendants, to the Jennings home. Court reconvened in the basement of the Jennings home at 12:20 P.M. Dr. Charles Labozzetta was first called and was examined before the jury, the defendants not objecting to this course. The doctor reiterated what he had said in his affidavit and stated that it was his opinion on October 17, when he had discussed the matter with the prosecutor, that it would be dangerous for Mrs. Jennings to travel to Brooklyn and that that was still his opinion. The doctor did not testify as to why it would be dangerous nor did he state whether it would have been dangerous for Mrs. Jennings to go to Brooklyn prior to October 17. Mrs. Jennings’ testimony was then taken.
Under 28 U.S.C.A. § 141 the Court is given wide discretion to move the place of trial to such places in the district “as the nature of the business may require.” If the Court finds, upon proper application, that it is in the interest of justice to move the trial in order to take testimony which is relevant to the issues, that is sufficient. United States v. Haderlein, D.C.N.D.Ill.1953, 118 F.Supp. 346. While the showing made by the government is somewhat inconclusive on the question of why it would have been dangerous for Mrs. Jennings to travel to Brooklyn sometime before October 17 during the first two weeks of the trial, we think that it cannot be said that the removal of the trial was an abuse of discretion.
In any event it is difficult to see how the defendants were prejudiced. Their counsel examined Mrs. Jennings fully and freely. While the basement of a private home does not provide all the usual courtroom conveniences, there was no showing that the defendants or their counsel suffered from any lack of privacy or any disability. The quarters were necessarily somewhat cramped but there is no showing that the public was excluded and at least one member of it, in [694]*694the person of a representative of the press, was present.
At the same time, while we cannot say that the judge abused his discretion in this instance, we wish to point out that such an extraordinary course should be followed only in cases of real emergency and every inquiry to test the necessity should be made in advance by the Court. Here it would have been advisable to require a showing to be made sooner, and to make the doctor available to the Court and to the defense for examination in Brooklyn before moving the Court to a distant point. To decide such a question belatedly on the mere assertions of the prosecutor and an inadequate affidavit of the attending physician does not seem a prudent course to follow.
D. The prosecutor’s summation.
We come now to the last substantial allegation of error made by the appellant Tomaiolo. During the cross-examination of Mrs. Katz the attorney for Soviero brought out that she had talked with Maurice Edelbaum, Tomaiolo’s attorney, prior to appearing before the grand jury. On cross-examination by Mr. Edelbaum, Mrs. Katz told how she had only spoken to Mr. Edelbaum for a few minutes and that he had refused to advise her.
In his summation the prosecutor picked out this testimony and commented:
“After she got back and after she had given a statement to the FBI she got in touch with Mr. Edelbaum. She had an interview with Mr. Edelbaum at her request.
“Mr. Edelbaum is an ethical lawyer. I would say his reputation is the finest.
“Mr. Edelbaum had an interview with her and she told him about the statement that she had made. Mr. Edelbaum then said to her that he couldn’t represent her because he represented Charlie Tomaiolo and he only spoke to her for about 4 or 5 minutes.
“Now, Gentlemen, you are not to leave your good hard common sense at home when you sit here in the jury-box. If she had told him anyone in the world other than Charlie Tomaiolo had committed this robbery, do you think he would have only spent 3 or 4 minutes with her? He would have been so tickled to get this, to hear this, to get all the evidence he needed in this situation he would have been there for an hour.
“Why did he only spend 3 or 4 minutes with her?
“Why did he turn her down, because he was representing Charlie Tomaiolo.”
The District Court erred in overruling the defense objection to such a flagrant distortion of the record. The Court should have promptly reprimanded the prosecutor, and should have instructed the jury to disregard the argument. More than that, the Court should have stated then or in the charge to the jury that there was no basis whatsoever for counsel’s argument.
It was entirely proper for Mr. Edelbaum to talk with Mrs. Katz, as she requested. It was likewise proper to advise her to be counseled by someone other than himself. Indeed that was the best course for counsel to follow. These matters are difficult for laymen and jurors to understand.
No adverse inference could or should have been drawn from the facts regarding Mr. Edelbaum’s brief talk with Mrs. Katz. It was inexcusable for the prosecutor to make such a charge. It was a violation of his duty to see that defendants on trial for a most serious felony were accorded a fair trial.3 More than that, the position of the prosecutor as one who presumably would be knowledgeable about such matters gave such undue [695]*695and unfair emphasis to his argument that it could be corrected only by an immediate rebuke and a careful instruction from the District Judge and his failure to correct this grossly improper .argument was error. Steele v. United States, 5 Cir., 1955, 222 F.2d 628, 631.
We do not hold that any one of the errors which we have found to have been committed with respect to the defendant Charles Tomaiolo necessarily requires reversal. But in view of the serious nature of these errors, and their number, we must reverse Charles Tomaiolo’s conviction.
II. Errors as to the defendant Louis Soviero
As appears from the statement of facts at the begining of this opinion, there was much evidence of Soviero’s guilt, in addition to his admissions to the arresting FBI agents. He entered no defense nor did he take the stand, but because of the errors in the admission of evidence and the conduct of the case against him, we must reverse his conviction.
Two of the special agents of the Federal Bureau of Investigation, who arrested Soviero in Buffalo, testified at trial. They told how Soviero had admitted his knowledge of the conspiracy and the secretion of the machine gun, but that he refused to sign a statement to that effect. One of the agents, when asked by the prosecutor what the reason was for his refusal, replied that “he stated that he would rather wait until he got down to New York City and see his parole officer.” No objection was made to this testimony at this time, but 12 days later, after Soviero’s attorney had an opportunity to read the transcript, a motion for mistrial was made because of this allusion to Soviero’s criminal record. The motion was denied. In view of the long delay in objecting it was not error for the District Court to deny the motion for a mistrial based solely on this one incident. But as this error was compounded by what followed, we cannot disregard this reference to the defendant Soviero’s criminal record.
As we have already noted, later during the cross-examination of Charles Tomaiolo, the prosecutor elicited testimony that Tomaiolo had known the appellant’s brother, Vincent Soviero, when they were both in prison. Tomaiolo admitted further that he had visited Vincent Soviero at his home after they both had been released. The prosecutor at this point was trying to show the parole violations of the appellant Tomaiolo. For the reasons stated above, the entire line of questioning was objectionable.
It had already appeared at this point that Louis Soviero lived at his brother’s home, and when the prosecutor asked Tomaiolo whether he had met Louis Soviero at his brother’s home on any of these visits, Tomaiolo first responded “Sir, I — you want me to answer that question?” The prosecutor pressed his question and finally the answer he got was that Louis Soviero “was in prison at the time.”
Soviero immediately moved for the declaration of a mistrial but the motion was immediately overruled. The prosecutor thereupon said “I ask the jury to disregard the last statement” whereupon the trial judge repeated the thought: “Yes. Disregard the last statement.” We think that this was inadequate and the absence of sufficient instruction constitutes error.
Soviero’s character was not in issue nor was his credibility open to attack. United States v. Modern Reed & Rattan Co., 2 Cir., 1947, 159 F.2d 656. The fact that he had been in prison was irrelevant and incompetent. This testimony indicating a criminal record could only serve to prejudice the jury. It made a fair and impartial trial impossible. Although the jury was advised to disregard the statement, that could not have erased from their minds its prejudicial effect.
And it is fairly apparent that the prosecutor knew that the answers to his questions would reveal Soviero’s criminal past. Certainly the special agents of the FBI had already advised him, out of [696]*696court, of the reason why Soviero refused to sign the statement.
Nor may Tomaiolo’s testimony be classed as purely voluntary. Even if he did not have actual knowledge of the times during which Louis Soviero was in prison, the prosecutor had the means of gaining such information. Yet he pressed the reluctant Tomaiolo to answer. In fact, as we have noted already, this entire line of questioning about Tomaiolo’s parole violations and associations with persons with criminal records was in error. That Soviero’s criminal past also came out was but one more of the fruits of the forbidden tree. Cf. McDonald v. United States, 1948, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153.
The government states in its brief that Tomaiolo’s statement “appears to be a designed falsehood.” We do not see how any weight can be given to this statement as Judge Medina does in his dissent, as there is no support whatsoever for it in the record.
Although the errors with respect to Soviero are far less serious than those with respect to Tomaiolo, since they were tried together we must give some weight to the obvious fact that anyone tried with Tomaiolo could not help but suffer in the eyes of the jury because of the unfairness with which the trial against him was conducted.
Furthermore, the atmosphere of criminal associations and unlawful activities which the government was erroneously permitted to develop and emphasize with respect to Tomaiolo did in fact include Vincent Soviero, Louis’ brother, as well as Louis Soviero himself. On this record it is impossible to say that all of this did not substantially and erroneously prejudice Soviero’s defense. Where co-defendant Tomaiolo received such an unfair trial we must give that factor due weight in determining whether that fact together with the errors committed with respect to Soviero require reversal. We conclude that on this record Soviero was seriously prejudiced by the whole trial, even that part of it which particularly pertained to Tomaiolo, and that his conviction should accordingly be reversed.
Where errors as to one defendant are so substantial and of such nature as to affect a co-defendant with whom he is tried jointly, appellate courts have reversed the convictions of both defendants on trial where it seemed that they could not have been fairly tried. United States v. Thomson, 7 Cir., 1940, 113 F.2d 643, 129 A.L.R. 1291; Feder v. United States, 2 Cir., 1919, 257 F. 694, 5 A.L.R. 370; Smith v. United States, 6 Cir., 1956, 230 F.2d 935; Nelson v. United States, 1953, 93 U.S.App.D.C. 14, 208 F.2d 505; Duncan v. United States, 7 Cir., 1928, 23 F.2d 3.
While other assignments of error have been made by the appellants, those already discussed require reversal and we do not think that the remainder merit comment.
We note, however, that there was a merger into one substantive crime of two of the counts for which each defendant was convicted. Thus, as we pointed out in the Nirenberg appeal, 2 Cir., 242 F.2d 632, certiorari denied, 1957, 354 U.S. 941, 77 S.Ct. 1405, 1 L.Ed.2d 1539 the count charging bank robbery and the count charging the defendant Tomaiolo with endangering the lives of the bank employees during the robbery merge into one substantive crime, for which only one sentence could be imposed. Likewise, the count charging Soviero with aiding and abetting the robbery merges with the count charging him with being an accessory after the fact. Hence it was improper to impose separate sentences on counts 2 and 3 as to Tomaiolo, and counts 2 and 4 as toSoviero.
The government’s case against both, defendants, if the jury credited Mrs. Katz’s testimony, as it must have, was-very strong. Despite this we find the-errors here committed to be of such serious nature and so numerous that it. is clear that both defendants were seriously prejudiced and that they could not. have received that fair trial to which all defendants are entitled regardless of [697]*697their criminal records, their station in life or the heinous nature of the offense with which they are charged.
The judgments of conviction are reversed and the case is remanded to the District Court.
We take this opportunity to express our appreciation to Marvin Schwartz and Andrew N. Heine for their services as assigned counsel for the appellant Louis Soviero.