(concurring):

I concur in the superb majority opinion for which my Sister Hufstedler is principally responsible.

As, however, I near the fifteenth anniversary of my service with our court, I must voice concerns that have troubled me for many years, even for a much longer time than I have performed the judicial function. My concerns have to do with the unrestrained, and sometimes indiscriminate, application by prosecuting authorities of the conspiracy charge. As I see them, the circumstances of this case present a unique opportunity and, perhaps, the last opportunity, that I shall have to record my pertinent sentiments. There is nothing new about my views, for they have been repeatedly expressed, better than I can express them, by some of the greatest, most perceptive jurists that have ever served our country’s judicial system. I shall reiterate, particularly, utterances of Mr. Justice Jackson and Judge Learned Hand, both of whom have long since gone to their eternal peace.

Here involved is a prosecution of seven individuals charged by the prosecution with having participated in a vastly far-reaching, wide-ranging illegal scheme involving the distribution of heroin. As I see it, the prosecuting authorities unwisely adopted what may have appeared to be a simple expedient, i. e., the charge of a conspiracy that was too broad, sweeping together into a single prosecution all of the loose ends that involved law enforcement investigators encountered during their investigation of the illicit activity. The ablest trial judge that ever lived would have had difficulty in separating incriminating testimony that *522 was admissible as to some of the accuseds and prejudicially inadmissible as to others. If that is true, it is inconceivable to me that any jury composed of lay persons, however conscientious and intellectual in fields outside the law, and regardless of whatever cautionary instructions may have been given, could have completely disregarded inflammatory evidence, especially hearsay evidence, that, as the case developed, was legally inadmissible as against some of the accuseds.

There is no need for me to review the prosecution’s testimony in precise detail. Suffice it to say that the evidence would have allowed the jury to find that the defendants had committed any of at least five different offenses. Those alternative offenses could have been: (1) a separate conspiracy between Yanez and Annie Osuna; (2) a separate conspiracy among Yanez, Eu-banks and Gonzales, the latter a known, but unindicted conspirator; (3) an isolated sale by Yanez to Eubanks; (4) a separate conspiracy between Yanez and Jones; (5) a single, isolated transfer of three ounces of heroin from Jones to Yanez.

Thus, the numerous possibilities for variance between the indictment, charging the appellants with having engaged in a single, all-encompassing conspiracy, and the proof, which would, as here, support jury findings of multiple, smaller conspiracies, or even isolated transactions between certain codefendants, reinforces my concern that the prosecution may have abused its joinder powers under Fed.R.Crim.P. 8 by bringing to trial at one time every individual who may have had even the slightest connection with a participant in the distribution scheme that was alleged.

I am well aware that the joinder of numerous defendants in a single joint trial may result in judicial economy (see United States v. Kennedy, 564 F.2d 1329, 1334 (9th Cir. 1977), cert. denied, 435 U.S. 944 , 98 S.Ct. 1526 , 55 L.Ed.2d 541 (1978)), but we, as judges, should not shirk our duty to protect our courts from becoming mere prosecutorial mills through which criminal convictions are processed all in the name of judicial efficiency. This danger of sacrificing individual justice arises most often in a case such as this, wherein questions are raised as to whether there was one single conspiracy or several minor conspiracies. See United States v. Sperling, 506 F.2d 1323, 1340-1341 (2nd Cir. 1974), cert. denied, 420 U.S. 962 , 95 S.Ct. 1351 , 43 L.Ed.2d 439 (1975). 1 Our district judges have the first and most critical responsibility, for they are positioned to sever trials when they can readily see, quicker than we, injustices that may occur if such is not done.

Courts have protested unavailingly the habit of the government to indict multiple defendants for conspiracy in addition to, and even in lieu of, the substantive offense itself (see Krulewitch v. United States, 336 U.S. 440, 445-446 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949) (Jackson, J., concurring)) and have suggested that this “loose practice . constitutes a serious threat to fairness in our administration of justice.” Id. at 446 , *523 69 S.Ct. at 719-20 . The greatest threat, of course, is that which I see here: the probability of prejudice which arises from the inevitable insinuation of guilt by association when evidence is admissible against some of the defendants but not against all of them. Regretfully, it appears that our prosecutors have begun to bank on this prejudice. It is therefore understandable that Judge Learned Hand long ago described the conspiracy charge as “the darling of the modern prosecutor’s nursery.” Harrison v. United States, 7 F.2d 259, 263 (2nd Cir. 1925).

With increasing frequency our court is confronted by multiple defendant prosecutions raising the Kotteakos multiple conspiracies-single prosecution issue. See United States v. Bracy, 566 F.2d 649, 657-658 (9th Cir. 1977), cert. denied, 435 U.S. 965 , 98 S.Ct. 1603 , 56 L.Ed.2d 57 (1978); United States v. Kearney, 560 F.2d 1358, 1362-1363 , cert. denied, 434 U.S. 971 , 98 S.Ct. 522 , 54 L.Ed.2d 460 (1977); United States v. Perry, 550 F.2d 524, 532-533 (9th Cir. 1977), cert. denied, 434 U.S. 827 , 98 S.Ct. 104 , 54 L.Ed.2d 85 (1977). In each case, as was required here, an immense amount of our judicial time has been spent sifting through testimony in an effort fairly to determine if there was in fact sufficient evidence to tie each of the conspiracy defendants to a common unlawful agreement.

Furthermore, considering the great potential for prejudice to the various individual defendants arising from one mass trial, I again remind all, including myself, that a conviction must rest upon individual guilt beyond a reasonable doubt, not mass guilt. Kotteakos v. United States, supra, 328 U.S. 750, at 774 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946). 2 The prejudice to the individual defendant forced to defend himself at a joint trial with numerous other alleged co-conspirators is compounded in instances where, as here, the proof as readily indicates the existence of a number of isolated transactions or several small conspiracies as it does the single conspiracy charged by the prosecution. Just as the danger of inferring guilt from one codefendant to another increases in proportion to the number of persons compelled to stand trial together, (Blumenthal v. United States, 332 U.S. 539, 559 , 68 S.Ct. 248 , 92 L.Ed. 154 (1947)), the danger of guilt by association at a multiple defendant trial intensifies as the number of possible conspiracies grows. Undoubtedly there is a tendency for the jury to believe that a defendant must have been involved in the alleged all-encompassing conspiracy, once it finds that individual to have committed one of the minor acts which the prosecution contends is but an extension of the greater conspiracy. This, of course, is the very heart of the single charge-multiple conspiracies issue: whether the minor act itself was in fact an act in furtherance of, and with knowledge of, the single conspiracy. I have already mentioned my doubts about the ability of even the most conscientious jury to keep separate the evidence that may be properly considered against *524 each defendant. In a case such as this, I conclude that the danger of prejudice arising from a joint trial far outweighs any inconvenience that would be imposed upon the government and the courts were the prosecution compelled to conduct several separate trials.

It is the trial court’s duty under our Fed.R.Crim.P. 14 to balance the expense and inconvenience to the government of separate trials against the prejudice to the individual codefendants (United States v. Campanale, 518 F.2d 352, 359 (9th Cir. 1975), cert. denied, 423 U.S. 1050 , 96 S.Ct. 777 , 46 L.Ed.2d 638 (1976)), and although the decision whether to grant a severance or to order separate trials is left to the sound discretion of the trial court (United States v. Kennedy, 564 F.2d 1329, 1334 (9th Cir. 1977), cert. denied, 435 U.S. 944 , 98 S.Ct. 1526 , 55 L.Ed.2d 541 (1978)), that discretion is not without limits. United States v. Hernandez-Berceda, 572 F.2d 680, 682 (9th Cir. 1978), cert. denied, 436 U.S. 949 , 98 S.Ct. 2856 , 56 L.Ed.2d 792 (1978). I respectfully submit that this case approaches, if it does not exceed, those limits.

I conclude by quoting Mr. Justice Jackson, a great lawyer and a great Justice:

Krulewitch v. United States, 336 U.S. 440, 453 , 69 S.Ct. 716, 723 , 93 L.Ed. 790 (1949) (Jackson, J., concurring).

. In Sperling , the court warned:

United States v. Sperling, 506 F.2d at 1340-1341 .

. Kotteakos held:

United States v. Kotteakos, supra, 328 U.S. at 772-773 , 66 S.Ct. at 1252 .