Our review of the District Court's action is limited to whether the court abused its discretion in denying Gibson's request to call Clair. The decision whether a witness who fails to obey a sequestration order may subsequently take the stand is undoubtedly one for the trial court. United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972); United States v. Marson, 408 F.2d 644 (4th Cir. 1968), cert. denied, 393 U.S. 1056, 89 S.Ct. 695, 21 L.Ed.2d 698 (1969); United States v. Johnson, 345 F.2d 457 (6th Cir.), cert. denied, 382 U.S. 836, 86 S.Ct. 83, 15 L.Ed.2d 79 (1965); Spindler v. United States, 336 F.2d 678 (9th Cir. 1964), cert. denied, 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797 (1965). The controlling principle in this Circuit is that violation of an order directing that witnesses be separated does not automatically bar a witness' testimony.
The appropriate sanction for violation of a witness exclusionary rule is a matter which lies within the sound discretion of the trial court. United States v. Oropeza, 564 F.2d 316, 324 (9th Cir. 1977); United States v. Torbert, 496 F.2d 154, 157-8 (9th Cir.), cert. denied, 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974); Spindler v. United States, 336 F.2d 678, 682 (9th Cir.), cert. denied sub nom. Richards v. United States, 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797 (1965). Disqualification of a witness on that ground, while not the preferred remedy, has been held, in some circumstances, not to constitute an abuse of discretion.
A witness is not disqualified merely because he remains in the courtroom after a sequestration order. Spindler v. United States, 336 F.2d 678 (9th Cir. 1964). The defendants did not object to Cornell's presence until it was time for him to testify.
Williams v. United States, 93 F.2d 685 (9th Cir. 1937); Ochoa v. United States, 167 F.2d 341 (9th Cir. 1948). Spindler v. United States, 336 F.2d 678 (9th Cir. 1964), cert. denied 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797 (1965). See also United States v. Cole, 491 F.2d 1276, 1278 (4th Cir. 1974).
There is no merit in appellant's contention that 18 U.S.C. § 1343 does not apply to frauds involving telephone communications. This court has twice affirmed convictions under 18 U.S.C. § 1343 in which interstate telephone calls played an integral role in the scheme to defraud, Battaglia v. United States, 349 F.2d 556 (9th Cir. 1965); Spindler v. United States, 336 F.2d 678 (9th Cir. 1964), and the legislative history of the 1956 amendment to the statute demonstrates that Congress intended to reach frauds perpetrated by telephone. H.R. Rep. No. 2385, 84th Cong., 2d Sess. (1956), 1956 U.S. Code Cong. Admin. News, p. 3091.
This issue is one often contested in 875(c) cases and "[i]t is [clear] beyond dispute that identification of a telephone caller may be [established] by circumstantial evidence." United States v. Holder, supra; Spindler v. United States, 336 F.2d 678 (9th Cir. 1964); Seeber v. United States, 329 F.2d 572 (9th Cir. 1964). In Smith a voice identification and proof of Smith's physical presence near the phone booth to which the call was traced at about the time of the call were elements considered by the court as bearing on identity.
That this is a correct statement of law is now well established. Spindler v. United States, 336 F.2d 678 (9 Cir. 1964), cert. den. 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797; United States v. Johnson, 345 F.2d 457 (6 Cir. 1965), cert. den. 382 U.S. 836, 86 S.Ct. 83, 15 L.Ed.2d 79; United States v. Marson, 408 F.2d 644 (4 Cir. 1968), cert. den. 393 U.S. 1056, 89 S.Ct. 695, 21 L.Ed.2d 698. The exercise of that discretion will not be disturbed except in case of clear abuse thereof. Johnson, supra.
The purpose of the rule of exclusion is to prevent the shaping of testimony by witnesses to match that given by other witnesses, Taylor v. United States (9 Cir. 1967) 388 F.2d 786, 788. The conversations did not touch on the anticipated testimony of the witnesses and did not prejudice appellants, who attempted to impeach Travis with the disclosure of her drug addiction and the fear of the F.B.I. it subjected her to. Further, this court has upheld the permitting of witnesses to testify who have been exposed to the testimony of other witnesses in violation of a court order, Spindler v. United States (9 Cir. 1964) 336 F.2d 678, 682, cert. denied sub nom. Richard v. United States, 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797 (1965); Weedlin v. United States (9 Cir. 1967) 380 F.2d 657, 660, and has indicated that "unless the violation has somehow so discredited the witness as to render his testimony incredible as a matter of law he should not be disqualified from testifying." Taylor v. United States, supra, 388 F.2d at 788.
We find no error in admission of this evidence. See Andrews v. United States, 10 Cir., 1935, 78 F.2d 274, 275; Spindler v. United States, 9 Cir., 1964, 336 F.2d 678, 681, cert. den. sub nom. Richards v. United States, 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797, where testimony of telephone conversations was admitted although connection between the conversation and the caller was established by circumstantial evidence alone. Appellant's last point is that it was "plain error" for the Trial Judge to allow a verdict of guilty to stand as to Count 12, which concerned the furtherance of the alleged scheme to defraud by mailing a Motion to Intervene to an attorney proceeding with a mortgage foreclosure action.
We find no merit in this alleged error. Spindler v. United States, 336 F.2d 678, 682 (9th Cir. 1964). 3(e).