UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

MICHAEL KENT POLAND AND PATRICK GENE POLAND, DEFENDANTS-APPELLANTS

PER CURIAM:

Michael Kent Poland (Mike) and Patrick Gene Poland (Pat), brothers, appeal from separate judgments entered in the United States District Court for the District of Arizona convicting each of five counts of robbery in violation of 18 U.S.C. § 2113(a) and two counts of kidnapping in violation of 18 U.S.C. § 2113(e). A jury had found the defendants guilty on all of these counts. The two defendants had been indicted jointly and tried together. We affirm the judgments of conviction.

1.

On May 24, 1977, two-driver-guards left Phoenix driving a Purolator Security, Inc. van containing currency for delivery to a number of banks in Northern Arizona. The run they were to make was routinely made every Tuesday morning leaving at seven o’clock. Beginning on Interstate Highway 17, the drivers were to drive the van north from Phoenix; their first delivery was to be to a bank in Prescott, about a hundred miles away. The van never got to Prescott. It was found the next morning, abandoned near the Bumble Bee turnoff from Highway 17, about 50 miles north of Phoenix. The currency was missing from the van.

On June 16, 1977, the body of one of the drivers was found floating in Lake Mead,* about 300 miles from where the van had been left. A week later the body of the other driver was recovered in the same part of Lake Mead.

A federal grand jury at Phoenix returned an indictment against Mike and Pat on May 17,1978. The two defendants were charged jointly in nine counts. The first five counts charged bank robbery in violation of 18 U.S.C. § 2113(a). Each of the five counts named a different bank as owner of a sum of money charged to have been taken by the two defendants. Two other counts charged the defendants with kidnapping the two drivers in violation of 18 U.S.C. § 2113(e).

Among the several others, there were pretrial motions by the defendants to suppress as evidence items seized during searches made on July 27, 1977, and on May 25, 1978. The searches were authorized by warrants issued by Judge Copple and by Magistrate Gormley. Because Judge Copple had issued most of the search warrants, he — on request — disqualified himself from deciding their validity. Judge Turrentine heard the matter in Phoenix on August 18, 1978, and at the conclusion denied the motions to suppress. He thereafter on August 28, 1978 filed a memorandum opinion and an order denying the motions. On August 17, 1978, the United States Attorney filed a dismissal of the two murder counts of the indictment pursuant to leave of court.

On July 21, 1978, counsel for Mike filed a motion under Federal Rule of Criminal Procedure 21(a) for an order “changing the venue of his trial from the District of Arizona to a district wherein the defendant will be free from prejudicial pretrial publicity.” At a hearing on August 8, 1978, the district court denied the motion. The motion was renewed on December 18, 1978, and at that time counsel for Pat joined in the motion. The district court then denied the motion for change of venue outside the District of Arizona but ordered the trial to be transferred within the District to Tucson, setting a January 16, 1979 trial date.

At Tucson, the indictment was assigned to Judge Frey who, on December 22, 1978, set the case for trial to begin at Tucson on January 16, 1979, before Judge Murphy (of the Southern District of New York, sitting by designation).

The trial began before Judge Murphy and a jury at Tucson on January 16, 1979. Both sides rested on February¹², following testimony by both defendants and rebuttal. The jury began deliberating on February¹³ and in the early afternoon of February 14 returned a guilty verdict as to each defendant on each of the seven counts submitted.

The court imposed sentences on March 14, 1979, giving each defendant 20 years on each of the first five counts to run concurrently with each other, and giving 40 years on Count VI and 40 years on Count VII, to run consecutively and consecutive to the sentences on the first five counts, or a total sentence of 100 years of imprisonment. Fines amounting to $50,000 were imposed on each defendant.

These appeals followed.

2.

The principal argument made for appellant Pat is that there was improper intervention by the trial judge. This intervention is said to have been “in unduly interrupting both defense counsel, in criticizing and ridiculing them before the jury, and in showing extreme partisanship towards the prosecution to the extent even of assuming the role of the prosecution.” The intervention is said to have “denied him [appellant Pat] a fair and impartial trial.” Appellant Mike does not make this argument but in his brief he states that he joins in “any argument” made for Pat.

If we should accept the argument that the trial judge did intervene improperly to the extent that error was committed, there can be no reversal of the convictions unless we also find that the intervention significantly prejudiced the defendants. And in considering whether there was any such significant prejudice, we should look to the evidence to see whether the issue of guilt was a close one — in which event prejudice from the error is more likely to have occurred — or whether evidence of guilt was overwhelming — in which event prejudice from the error is much less likely to have occurred. This Court stated the principle very succinctly in United States v. Allen, 431 F. 2d 712, 713 (1970): “And even if it could be said that the several comments, considered as a whole, constituted error, the error could not have operated so as to prejudice significantly, the rights of the accused. The evidence of his guilt was overwhelming.”

We examine the evidence, therefore, to see what the proof was of the guilt of these appellants.

3.

The evidence is clearly sufficient to support the convictions; indeed, appellants make no contention that the evidence was insufficient. The defendants did deny in their testimony that they committed the offenses. There is no dispute, however, as to the commission of the offenses, nor as to how they were committed.

Since there were no eye witnesses to the commission of the offenses, the evidence that appellants committed them was, of necessity, circumstantial. In respect of crimes of violence, this is frequently the case and is of no significance: “it is a time-tested rule in this circuit that circumstantial evidence is not inherently less probative than direct evidence.” United States v. Green, 554 F. 2d 372, 375 (9th Cir. 1977).

4.

Mike and Pat had been living in Phoenix for some time before May 1977. Neither had any history of sustained gainful employment, although the record contains vague references to intermittent jobs they may have held.

When Mike lost a civil personal injury action in the summer of 1976 — an action he had expected to win — it left him and his family in his words “destitute, practically.” He could not pay his debt for property in Oregon and had to give it up. The only thing he could do was to leave Oregon. When Mike returned to Phoenix in about May or June 1976, he moved in with Pat, then with his father, and finally settled into his own apartment. He borrowed money from his wife’s father and his own father. He used his father’s credit cards to pay for gasoline, clothes for his family, and the like. He had past due, delinquent bills for medical and dental services.

Pat, before May 24, 1977, was equally without money. He borrowed from his father and used his father’s credit cards, just as Mike had done. Pat also borrowed from his younger brother and a friend. According to their father, by May 24, 1977, Mike and Pat, between them, owed him more than $15,000.

5.

The evidence shows that for several months before May 24, 1977, Mike and Pat made preparations for the crime. These included making arrangements to impersonate Arizona Highway Patrol officers so as to be able to stop the Purolator van on the highway without arousing suspicion.

In December 1976, Mike and Pat leased two Chevrolet Malibu four-door sedans, one silver and one white, similar to those used by the Arizona Highway Patrol. They asked that the charge on the car for Mike be to the credit card of his father-in-law, and on the car for Pat to the credit card of his father. After taking possession of the cars, Mike and Pat equipped each car with a police-type siren activated by a toggle switch on the dashboard.

On February 1, 1977, Pat ordered a short wave radio “scanner” from a shop in a Phoenix suburb, an item of equipment frequently used by police. Pat also ordered a special item of scanner equipment, a digital frequency selector. A few days after February 1, 1977, Pat picked up and paid for the equipment he had ordered. Pat told the salesman to show the name of Mike on the invoice because Mike was furnishing the money. The jury could have found that Mike and Pat bought this equipment to enable them to determine at any time the number and location of highway patrol cars in the Highway 17 area north of Phoenix.

On the weekend beginning February 4, 1977, Mike and his family visited his stepsister in Flagstaff, Arizona. The stepsister’s husband had formerly been a police officer. He kept a three-volume police manual on operations and procedures on open bookshelves in his house, where Mike was staying. On the first afternoon of his visit, Mike was observed reading the police manual on two occasions for not less than an hour each time. Again, on the following afternoon Mike was observed reading the police manual.

On February 7, 1977, a man calling himself Mark Harris telephoned from Phoenix to a gunshop in Tucson. He said he had been referred to that shop by the manufacturer of the taser device, a new product designed to stun and disable a person by disruption of the nervous system. He wanted to buy a taser and was told that with a deposit the device would be ordered for him. He came in on February 9, 1977, identified himself as Mark Harris, made the deposit and was given a receipt. On February¹¹, the taser arrived in Tucson. The shop called a number in Phoenix given by Mark Harris, spoke to him, and reported that the taser had arrived. Mark Harris came in very soon afterwards with another man, paid the balance of the price, was given a receipt, and picked up the taser. The salesman who handled every step of the transaction identified Pat as the person who represented himself to be Mark Harris and identified Mike as the man with “Mark Harris” on February¹¹, 1977. The significance of this incident is not so much that it shows purchase of a device to stun and disable as that it shows that Pat used the alias “Mark Harris.”

On April 25, 1977, Pat ordered three canvas bags from a Phoenix company to be made in dimensions to his order. They were made, were delivered to him on the next day, and were paid for with cash. He also bought 100 feet of a distinctive green and white cord or rope, called “Rover Rope.” The Phoenix company was the only company in Arizona that sold Rover Rope. Although there was no identification of Pat by sight as the purchaser of the canvas bags and the Rover Rope, the company’s business records showed that the purchaser of the three canvas bags and the Rover Rope had used the name Mark Harris. From the evidence, the jury could find that Pat Poland, using an alias “Mark Harris,” was this purchaser. On Tuesday, May 10,1977, a person made a collect call at 8:09 a. m. from a pay telephone with a 374 prefix number. This prefix is that of the Black Canyon area around Black Canyon City, north of Phoenix and before the Bumble Bee turnoff. The caller identified himself to the operator as Mike Poland and charged the call to the number of Mike’s residence or to that of his father. There are several pay telephone booths with a 374 prefix along Highway 17 in the Black Canyon area. From these booths there was a clear view of the north bound lane of Highway 17. The jury could have found that on Tuesday, May 10, 1977, Mike was on Highway 17 investigating the regular Tuesday run of the Purolator van, which was scheduled to pass Black Canyon City in the general time frame in which Mike was there.

On May 18,1977, Mike and Pat bought a “light bar” from a supply company in Phoenix. A light bar is a device that holds one or more rotating domed lights and is used principally by police vehicles and ambulances; it is illegal to use a red light in a light bar except on police or fire department vehicles or ambulances. The salesman and the receptionist at the company, both of whom saw and talked to Mike and Pat on more than one occasion, identified them as the purchasers of the light bar. Mike and Pat did not give their names, but said they were starting a towing service and wanted the light bar for a tow truck. The invoices were made out to “Harper’s Towing,” the name given by Mike. They gave no address; instead Mike said they were new in the business and did not have an address yet, and that since it was a cash sale there was no need for an address. Tow truck operators in Arizona are required to be registered with the Department of Public Safety; no “Harper’s Towing” was so registered.

On a weekend in May 1977, not later than the weekend beginning Friday, May 20, Mike called one of his friends who had formerly been a Phoenix police officer. Mike asked him if he still had the Sam Brown belt he had worn on the Phoenix police force. A Sam Brown belt is commonly worn by police officers; it has a pistol holster, shell cases, and a handcuff case. Mike explained that they were combat shooting on a National Guard range and he needed a holster belt for his brother. The friend said that he had turned in his belt when he left the force, but gave Mike the names of two stores in Phoenix where he could buy such a belt.

6.

As noted earlier, the two driver-guards left Phoenix with the money in the Purolator van about eight o’clock in the morning of Tuesday, May 24, 1977. They started about an hour later than usual, because of some minor mechanical trouble with the vehicle. They never reached Prescott, their first scheduled stop; they were never seen alive again.

There was testimony of the Ackers, a husband and wife, who were driving in a car together on Highway 17 north from Phoenix on the morning of May 24, 1977.1 Their testimony was that about nine-thirty or ten o’clock that morning, near the Bumble Bee turnoff, they saw a Purolator van stopped in the dirt about 25 or 30 feet from the highway.

The Ackers saw a man standing near the door of the van on the driver’s side; both doors of the van were open. The wife “thought perhaps he was a Highway Patrolman” because he had on what appeared to be a uniform, tan trousers and shirt, with a patch on the arm. Both husband and wife identified the man by the Purolator van as Pat Poland.

Records of the Arizona Department of Highway Safety established that between the hours of seven a. m. and noon on May 24, 1977, there was no Highway Patrolman on duty on Highway 17 between Phoenix and a point some 25 miles north of the Bumble Bee turnoff. Thus, the evidence suggests that Mike and Pat, masquerading as Highway Patrolmen, stopped the Purolator van with the money at Bumble Bee.

Another husband and wife who had driven north from Phoenix on Highway 17 on the morning of May 24, 1977 testified. Between about nine and ten o’clock that morning they came up to and passed by a white car stopped in the right lane going north just before Bumble Bee turnoff. A man was in the car on the driver’s side in the front seat, leaning over the wheel. Another man, in a uniform, was outside and behind the car with one foot on the rear bumper. He appeared nervous and his actions suggested that he was a lookout. This couple also saw the van, down and off the road in the dirt south of the underpass at the Bumble Bee turnoff. The husband (who had been the driver) did not identify either man with the car on the highway. The wife identified the “nervous” man as Mike Poland.

On the afternoon of May 24, between 2:00 and 4:00 p. m., Mike and Pat appeared at the home of their father to borrow their father’s 1972 Chevrolet pick-up truck and a tarpaulin that their father had always used with the truck to protect the truck bed. On May 24, he was using the tarpaulin to cover some sacks of cement in his backyard because it had been raining. They did not tell their father why they needed the truck or tarpaulin nor where they were going.

7.

Lake Mead is some 300 miles northwest of the Bumble Bee turnoff. Temple Bar is the only developed area on the Arizona shore and is the least used of the nine or ten such areas on the lake. Bonelli Landing (“Bonelli”) is an even more remote area on the Arizona shore, west and slightly north of Temple Bar. By road it is about 19 miles from Temple Bar to Bonelli; by water it is about 16 miles from Temple Bar to Bonelli. Bonelli is the least used of the three primitive camp grounds maintained by the Park Service on Lake Mead.

Some 4V2 or 5 miles across the lake to the north of Bonelli, on the Nevada shore, is Debbie’s Cove (“the Cove”). There are two inlets in the Cove, parallel and running north and south. The Cove is in an area without any vegetation except some widely scattered bushes. The land side is rocky and gravelly, with outcrops of pure gypsum. The Cove is not accessible by vehicle on land. It is difficult to approach even on foot and is one of the more isolated sections of the shoreline.

In the early morning of May 25, 1977, Mike and Pat, in the pick-up truck, arrived at Temple Bar on Lake Mead. Pat let Mike out and continued in the truck to Bonelli. Mike was the first person to rent a boat at Temple Bar that day. He was alone. He said he had to meet someone at Bonelli and wanted to rent a boat. He had no fishing gear and said nothing about fishing. The boat rental ticket was written up; identification was required and Mike gave a driver’s license. Mike’s name was shown on the ticket. Mike told the boat manager that he was in the banking business in Phoenix. The manager went to the boat dock with Mike, put the gas tank and other equipment in the boat, and saw Mike get in the boat alone and leave for Bonelli.

Meanwhile there had been a search for the missing van and the missing guards. A helicopter was dispatched at daylight on May 25, and shortly after six o’clock, the crew spotted the Purolator van near the Bumble Bee exit. After landing, the crew found no one in or near the van. No significant evidence was discovered in or around the van.

At Lake Mead, between 1:30 and 2:00 o’clock in the afternoon of May 25, Mike returned the boat to Temple Bar. With him was a companion. While the boat manager could not identify him, it was undisputed that Pat was the companion. They told the boat manager that their truck was stuck at Bonelli and that they needed somebody to pull them out.

After some inquires, Mike learned that, among a few others, an old acquaintance named Stan operated a tow service and gasoline station on Highway 93. Still in the afternoon of May 25, Mike telephoned Stan, who agreed to meet Mike at Temple Bar and pull out the truck stuck at Bonelli. At Temple Bar, Stan met Mike and another man who was introduced as Mike’s brother “Jerry.” While Stan could not identify “Jerry” in court, there is no doubt that he was Pat. The three went in Stan’s tow truck to Bonelli, where Stan saw the truck stuck in the sand on a slant in shallow water some 400 yards from Bonelli itself. The Poland truck was backed into the water about ten feet; the tailgate was down and the water was up to the tailgate. The bed of the truck looked as if something had been dragged off it; on the bed was white, gravel-like sand. When Stan asked how the truck got stuck, Mike and Pat told him “they got feeling pretty good and they decided to come down there and carouse around a little bit around the lake.”

At about 5:15 p. m., they were finished pulling the Poland truck out. Mike and Pat decided to go with Stan to his gas station and buy gas for the truck. They drove in the Poland truck and Stan followed them in his tow truck. On the way they stopped, Stan made out a ticket for his charges of $93.60, Mike gave him a $100 bill in payment, and Mike told Stan to keep the change. Mike was shown on the record as the customer. The two vehicles continued on to Stan’s station, Mike bought gas, and he and Pat then left in the truck.

In the evening of Thursday, May 26, or in the morning of Friday, May 27, Pat returned the pick-up truck to his father. He did not return his father’s tarpaulin; in its place he brought a brand new tarpaulin. He explained that they had torn up the old tarpaulin using it under the rear wheels to try to get out of some sand where they were stuck.

8.

At about nine in the morning of Thursday, June 16, a visitor in a boat discovered the body of a man — later identified as one of the guards — in shallow water at the Cove. The upper part of the body was encased in a canvas bag, pinning the arms to the sides. Law enforcement officers observed that a Sam Brown Belt with an empty pistol holster was on the body.

The canvas bag that covered the upper part of the body was one of the three such bags bought by Pat in April 1977 from a Phoenix company. The manager of the company made a positive identification.

Later on the same day, in the water near where the body had been found, divers located two uneven pieces of wood tied together with several pieces of green and white cord. This cord or rope was the Rover Rope that had been bought by Pat in April 1977. The rope was identified by the company manager who remembered how and why his company had purchased that distinctive rope. A representative of the manufacturer of Rover Rope also identified the rope and testified that it was made exclusively by his company (intended for dog leashes; hence the name) and that it was sold exclusively to the Phoenix company. On the morning of June 23, officers found the other guard’s body along the west shoreline of the Cove, about 100 yards from where the first guard’s body was found. On the next day — June 24 — divers searched the Cove. About three or four feet from shore they found a canvas bag on the bottom, with brass grommets and a green and white rope. This bag was one of the three such bags bought by Pat in April 1977 from the Phoenix company. Again the manager of the company made a positive identification.

On the affidavit of an FBI Special Agent, search warrants were issued by Judge Cop-pie on July 26, 1977.

Some of these warrants were executed on July 27,1977, by a search of Mike’s house in Prescott, of his person, and of the car he was using. Among other things, there were found in these searches: (a) $13,313.50 in currency, including $1,000 in $100 bills; (b) $15 in paper wrapper rolls of coins; (c) an eight channel scanner for short wave or FM radio (this is a scanner additional to that bought for the same purpose by Pat in February 1977) set to select eight channels, five of which were Phoenix police channels and three of which were Arizona Department of Public Safety channels, one of these being used in the Bumble Bee turnoff area; (d) a Smith & Wesson .357 handgun with holster and belt; (e) a number of other handguns, rifles, shotguns, and other weapons; (f) two handcuff cases of the type used by law enforcement officers, with a black leather zap (a “zap” is a lead or heavy steel object covered with black leather, used by police officers for various purposes; including control of crowds; and (g) a receipt for a taser weapon from Western Heritage Gun Shop in Tucson in the name of Mark Harris.

Other warrants were executed on July 27, 1977, by a search of Pat’s residence in Phoenix. Among other things, the officers found a leather identification case consisting of a law enforcement officer badge wallet. They found $15,225 in a red plastic shopping bag inside a woman’s hair dryer in a closet of the master bedroom. They also found $630 in a wallet and $85 in a chest of drawers; this money was in $50, $20, and $5 bills.

On August 15, 1977, divers returned to search underwater at the Cove near where the bodies were found. They saw and brought up a canvas bag containing tarpaulin and a blanket. The canvas bag had deteriorated to such an extent that when it was picked up in the water it came apart. The bag was one of the three such bags bought by Pat in April 1977 from the Phoenix company. The tarpaulin was the tarpaulin that had been borrowed by Mike and Pat on May 24 from their father and not returned to him. No positive identification was made of the tarpaulin found in Lake Mead. The evidence, however, would compel a finding, which the jury undoubtedly made, that it was the tarpaulin borrowed on May 24 by appellants from their father. The fact of its being found in one of the canvas bags bought by Pat is itself strongly probative. The Polands’ father testified that the size, shape, color, holes, abrasions, and location of grommets of the tarpaulin found in Lake Mead were the same as, or closely similar to, the tarpaulin he loaned to Mike and Pat on May 24; he testified that he could not say that the found tarpaulin was, or was not, his tarpaulin. An expert testified that he examined the tarpaulin found in Lake Mead and that he saw on it small gray particles which on analysis were high in calcium carbonate and gypsum. From this and from their microscopic characteristics he concluded that the particles were “neat cement such as comes out of a bag.” His findings were consistent with the use of the tarpaulin to cover bags of cement to protect them from rain.

On the same day, the divers made another underwater trip and underneath where the canvas bag had been they found and brought up a license plate (folded over) and two handguns wrapped in tape. The plate turned out to be one used as distinctive identification by Arizona Department of Public Safety patrol vehicles; the two handguns were shown to have belonged to the driver-guards. The divers also found at the place where the bag had been several rocks that they concluded had been placed in the bag; they were all of about the same size, that of a softball; nearby was a pile of similar rocks. All the rocks just described were distinctive in that they did not have silt or sediment on them, unlike the other rocks and objects on the bottom which were covered with silt or sediment. The only logical explanation for these two piles of rocks is that they were put in the canvas bags on the bodies to hold them down, and came out of the bags while submerged, thus allowing the bodies to rise and float.

Everything found by the divers in the Cove on August 15 was near where the bodies had been found, that is, within a distance of 200 to 300 feet.

9.

Soon after the May 24, 1977 robbery and murder, Mike and Pat appeared to have lots of cash money to make purchases, to pay off debts, and to obtain medical and dental services. This is in sharp contrast to their generally poor financial condition before May 24, 1977.

The spending by Mike and Pat together after May 24, 1977, up to the end of the year amounted to something over $83,000, nearly all of it in cash. When the money found in their houses during the searches on July 27, 1977 is added to this amount, they are shown to have been in possession, shortly after the robbery, of over $110,000 in cash.

10.

When the search warrants were executed on July 27, 1977, Mike at Prescott and Pat at Phoenix answered questions of the officers. They admitted being together at Lake Mead on May 25, 1977, in their father’s truck and getting stuck, but their explanations of the reasons for their going to Lake Mead were completely inconsistent. Mike said that they went to Las Vegas to deliver raw turquoise for money, then decided to get their families to meet .them at Lake Mead for fishing and an outing, then the truck got stuck, and they called off the family holiday. Pat on the other hand denied that they had gone to Las Vegas before Lake Mead and said nothing about a family outing; according to Pat, they did not go to Las Vegas because they were not dressed for it; their visit to Lake Mead “was a goof-off trip” and they were drinking heavily.

In their testimony, Mike and Pat tried to explain their activities in and prior to May 1977 by tales of drug and jewelry transactions. According to them, the cash came from these activities. No part of their story could be substantiated because, they claimed, their activities were illegal and they were dealing with evil and desperate characters who would inflict great injury on their families if they revealed any information about the drug or jewelry transactions. The jury was amply justified in rejecting their testimony as completely false.

The lengthy review of a good part, but not all, of the evidence, then, establishes the guilt of the appellants beyond any doubt. The combination of circumstances cannot be explained as coincidence.

The principal trial errors are thus claimed in respect of convictions where the evidence was not closely balanced but was powerfully demonstrative of guilt.