Lazarus appeals from his conviction upon three out of seven counts of perjury under 18 U.S.C. 1621, based on his testimony before a grand jury. He raises four questions: Did the district court err, (1) in denying his motion for a mistrial based upon a Government witness' testimony linking Lazarus to the Mafia, (2) in admitting portions of transcript of the hearings before the grand jury in which Lazarus had asserted his privilege against self-incrimination, (3) in admitting bookmaking documents seized from a person other than Lazarus, and (4) in denying his motion for judgment of acquittal?

In 1966 a federal grand jury began an investigation of syndicated gambling activities after receiving information that a meeting of some of the members of the syndicate had been held at Palm Springs and that telephones were used during the meeting to transmit gambling information across state lines. The investigation was an inquiry into possible violations of federal laws concerning interstate transmission of gambling information, 18 U.S.C. 1084, interstate travel in aid of racketeering enterprises, 18 U.S.C. 1952, and of further possible violations of the Federal Communications Act and the Internal Revenue Code.

Lazarus was called before the grand jury on December 14, 1966. He refused to respond to any questions, invoking his Fifth Amendment privilege. He was again summoned to testify on March 9, 1967, and he again invoked his privilege and refused to testify. The Government thereupon obtained an order compelling Lazarus to testify pursuant to the immunity provisions of the Federal Communications Act, 47 U.S.C. 409(l).

On March 10, 1967, he was called to appear before the grand jury to answer questions about his association with the other alleged participants at the Palm Springs meeting, about his own activities there, and about his knowledge of telephone calls from Palm Springs to Multiple Sports Service and to the Prokos brothers in Miami, Florida. Although he knew that he could no longer rely on the privilege in view of the immunity order, he declined to answer all questions put to him. The district court ordered him to answer, Lazarus refused, and the court found him in contempt for which he was committed to custody until he purged himself of contempt.1 After seven months in custody, Lazarus requested and was granted an appearance to testify before the grand jury on October 18, 1967. It is his testimony on October 18, 1967, that is the subject of his prosecution for perjury.

Lazarus admitted before the grand jury that he visited the residence in Palm Springs for five or six days and that Elliott Paul Price, Tony Salerno, Jerry Zarowitz, Vincent Alo, and two women were also present during that time. The subject of Count One of the indictment was his testimony that he did not use the telephones in the Palm Springs house and that he did not see anyone else do so. The subject of Counts Four and Seven was his testimony that Mickey Zion was the only bookmaker with whom he ever placed a bet and that he never placed bets at bookmaker's odds with the Prokos brothers in Miami. The jury returned guilty verdicts on Counts One, Four and Seven.

* The Denial of Motion for a Mistrial

The Government's first witness was a former United States Attorney who, during his Government service, had been in charge of the Special Prosecutions Division, engaged in prosecuting cases in the general field of organized crime. He was called by the Government in order to establish the materiality to the grand jury investigation of Lazarus' testimony. The court instructed the jury that the testimony was not received to prove the truth of the facts contained therein but to show the nature of the investigation and what prompted it.

In response to questions about the information he had relayed to the grand jury and upon which its investigation was partially based, the witness stated:

'We had information that in Palms Springs, California, in October 1965 there was a meeting at a certain residence there, which involved people who were reputedly very high up in the Mafia organized crime syndicate in this country.

' * * * *for

'We had information that the phones in this residence had been used by certain individuals and that the telephones were used to make calls across State lines to other parts of the United States, in connection with gambling activities.

'We also heard-- had information that a dispute had arisen among certain members of an alleged gambling syndicate, and that one of the purposes of the meeting at Palm Springs was to resolve that dispute.

' * * * *ear

'We heard that there was present Elliott Paul Price, Tony Salerno, Jerry Zarowitz, Vincent Alo, also known as Jimmy Blue Eyes, Ruby Lazarus and two young women who were reputed to be girl friends of two of the people I have named.

' * * * *tha

'Elliott Paul Price, we had information he was involved on a large scale in gambling activities, not only interstate in the country but also in Canada and in the Montreal area. We had information he was involved in a bookmaking operation in and around Boston.

'We also knew that he was under indictment for Federal violations in the Southern District of New York.

' * * * *new

'As to Vincent Alo and Tony Salerno, we had information they were high important figures in organized crime activity on the East Coast and had been connected with Vito Genovese.'

Lazarus' counsel did not move to strike the testimony referring to the Mafia, but he did move for a dismissal (TR. 69), which we will charitably treat as a motion for a mistrial, on the ground that the witness' reference to the Mafia was prejudicial. The court denied the motion, admonished the prosecuting attorney to avoid references to the Mafia, and reiterated its prior instruction to the jury that the witness' testimony was hearsay, not received for the purpose of proving the truth of the facts asserted.

Two days later the prosecuting attorney in reading the transcript of the grand jury proceedings of March 10, 1967, read a portion of the transcript in which Lazarus declined to answer the question: 'Did Alo use the phone in connection with the gambling or other activities of the criminal syndicate known as La Cosa Nostra or the Mafia?' (TR. 531). Lazarus' counsel had been previously supplied with the transcript and had specified out of the presence of the jury certain portions thereof which he objected to and did not want read, and the court by rulings complied with his request. (TR. pages 86, 138, 161). He did not object beforehand to the inclusion of the challenged segment of the transcript quoted above. Nor did he object when it was read. At the conclusion of the reading he neither objected, moved to strike or moved for a mistrial. (TR. 551). Some time later, following the noon recess, he moved for a mistrial based on the reference to the Mafia, and the motion was denied. (TR. 572).

Testimony concerning the information presented to the grand jury was relevant to prove the subject of the grand jury's investigation and thus to prove the materiality of Lazarus' testimony before the grand jury. Disregarding for the moment the first witness' use of the word 'Mafia,' that information was that Lazarus and others had attended a high level meeting of members of an organized interstate gambling syndicate and that the activities of those who attended the meeting may have violated several federal statutes. Although reference to the Mafia was by no means necessary to the proof of the materiality issue, it was not wholly irrelevant to the inquiry. Part of the information spread before the grand jury was a claimed link between the members of the Palm Springs meeting and the Mafia.

Lazarus' argument is that even if the Mafia reference had some probative force, that evidence was so prejudicial that its reception deprived him of a fair trial and that the district court's denial of his motion for a mistrial was a clear abuse of discretion requiring reversal of his conviction. (Cf. Odom v. United States, (5 Cir.1967) 377 F.2d 853; Scott v. United States, (5 Cir.1959) 263 F.2d 398; United States v. Meagley, (7 Cir. 1957) 239 F.2d 637).

There well may be cases where reference in testimony linking the defendant to the Mafia, may require the granting of the defendant's motion for a mistrial. But this case is not such a case. The context of Lazarus' testimony was an investigation of organized crime and racketeering. The reference to the Mafia was made in that context. The public has long been exposed to extensive publicity about the evils of organized crime. We have no reason to suppose that publicity about the evils of the Mafia has been more extensive or more virulent than that devoted to members of organized crime who are not Mafia associates. We likewise have no reason to suppose that the public has less hatred toward big time racketers who are not members of the Mafia than it has toward those who are. We cannot say that the omission of any reference to the Mafia would have perceptibly brightened the jury's image of Lazarus or his associates. Moreover, nothing in the later developments at the trial points unerringly to undue prejudice to Lazarus that could be attributed to the unfortunate mention of the Mafia. We hold that the mention of the Mafia did not deprive Lazarus of a fair trial and that the district court did not abuse its discretion in denying his motion for a mistrial. (Cf. People v. Curtis, (1965) 232 Cal.App.2d 859, 43 Cal.Rptr. 286).

The second reference to the Mafia was made when the prosecutor was reading a transcript of Lazarus' interrogation before the grand jury on March 10, 1967. Lazarus' counsel, knowing the content of that transcript, made no objection specifically directed to the challenged question and no motion to strike it before it was read to the jury. Counsel cannot thus withhold objection to testimony and thereafter seek a mistrial based upon its introduction.

Portions of the grand jury transcripts of December 14, 1966 and March 9 and 10, 19672 were read to the jury. They were admitted for the purpose of proving that Lazarus' false testimony on October 18, 1967, was willful. The portions indicated instances where Lazarus had exercised his right against self incrimination and had refused to answer certain questions.

We think that the record shows (a) the appellant did not preserve his record below nor raise a constitutional question; (b) that in any event he suffered no prejudice requiring a reversal from the admission of such reference; (c) we believe that Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) is not controlling.

(a) Appellant Did Not Make a Proper Record and Did Not Raise Constitutional Objections to the Use of the Grand Jury Transcripts.

A general objection is not sufficient to raise a constitutional question. In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952) the court stated that a general objection '* * * is insufficient to preserve such a specific claim as violation of a constitutional provision * * *.' (pages 749-750, n. 3, 72 S.Ct. page 970); Ignacio v. People of the Territory of Guam, 413 F.2d 513 (9 Cir.1969).

Rule 51 Fed.R.Crim.P., requires that the objection and the grounds therefor be stated. Failure to object constitutes a waiver. Ignacio, supra.

We have searched the record3 and the only objections we find are that the reading of the transcripts (1) would be 'highly prejudicial' and (2) have 'slight probative value.' These are the objections counsel refers to in the record when he refers to the 'same objection' or 'renews his objection.' In the motion for new trial the reading of the transcripts are assigned as error but no grounds, constitutional or otherwise, were set forth.

In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) the defendant did not assert his constitutional privilege until his motion for new trial. (page 27, 89 S.Ct. 1532). The court remarked it 'would have been preferable for petitioner to have asserted the privilege at the trial * * *.'. But in Leary the defendant, on his motion for new trial, did finally raise the constitutional question. Moreover in Leary the trial occurred before Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). In our case the trial was long after Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the principal case relied on by appellant.

In United States v. Scott, (9 Cir. Mar. 6, 1970) 425 F.2d 55, there was a 'solid wall of authority' against the constitutional claims which excused the defendant's failure to raise them. Meadows v. United States, (9 Cir. Dec. 23, 1969) 420 F.2d 795 presents the same situation.

No motion for a mistrial on any constitutional grounds was ever made. The only motion for mistrial which was made was directed to the reference to the Mafia in the reading of the transcript and not to the reading of the transcript itself. (Tr. 572). A defendant should not be allowed to by-pass the requirement of Rule 51, Fed.R.Crim.P., that he state his objections and the grounds therefor, and to by-pass a motion for a mistrial, and then, after the verdict turns out to be one of 'guilty,' raise his objection. Devine v. United States, (9 Cir.1960) 278 F.2d 552, 556. The real concern of counsel for appellant was the reference to the Mafia and Cosa Nostra in the grand jury transcripts as shown by his motion for mistrial. (Tr. 572).

(b) Appellant Did Not Show Below Nor Does he Show Here How he Suffered any Prejudice.

Appellant did not spell out to the trial court and does not tell us on appeal how he was prejudiced by the fact that the jury knew he had previously refused to answer questions on his lawful claim of the Fifth Amendment privilege. No error is claimed in the briefs as to the introduction of the order requiring appellant to answer questions or the order holding him in contempt until he answered, nor to the reading of the portions of transcript of October 18, 1967, in which he testified as to why, after being held in contempt, he decided to answer the questions and secure his release from jail. Appellant, as noted later herein, apparently wanted the evidence as to the time spend in jail to be before the jury.

The grand jury transcript of October 18, 1967, which contained the perjured statements, and to which no objection was made, painted a sorry picture of appellant. He admitted his occupation was gambling and had been such since 1945, but stated that he had never 'accepted a wager' since World War II. He claimed no other occupation. He named one bookmaker Zion, as the only person with whom he had placed a bet. He had known Chris and John Prokos of Miami for 18 to 20 years but never heard they were bookmakers; that he had made personal bets with them at sporting events, 'head to head' bets, but without 'bookmaker's odds or vigorish.' He denied making calls to the Prokos brothers from Palm Springs in October 1965 and did not know if anyone else made calls. It was the records seized at the Prokos Brothers warehouse in Miami that tied appellant into placing bets with them and owing them a substantial sum of money. The record shows how the business of bookmaking is carried on.

Appellant had competent counsel and trial strategy could well have dictated that the jury know that appellant had already served from March 1967 to October 1967 (7 months) for contempt of the trial court's order to testify. These facts were all spread out in the transcript read to the jury together with appellant's statement that he had wanted to testify earlier than October 1967, but his attorney was not available. (Tr. 550-551). The record showed that appellant had well paid by the 7 months imprisonment for his contempt in refusing to answer. Having this before the jury was probably thought to be important by the defense.

Exhibit 3 was the transcript of proceedings in the district court on March 9, 1967, wherein the district court granted Lazarus immunity and ordered him to answer the questions; and the proceedings in the district court on March 10, 1967 when Lazarus was held in contempt and committed to jail. Exhibit 4 was the order granting immunity and Exhibit 5 was the order of contempt.

Lazarus in his brief does not complain of this evidence and note No. 3, supra, shows that on the offer of these Exhibits into evidence counsel stated only 'The defendant renews the objection.' (Tr. 510-11). The only prior ground of objection had been 'highly prejudicial and * * * little probative value.' (Tr. 77-8).

From Exhibits 3, 4 and 5 the jury knew Lazarus had claimed his privilege against answering questions, had been granted immunity, had again refused to answer the questions and had been jailed for contempt. The claims of privilege on December 14, 1966 and March 9, 1967, added nothing of significance to the evidence from Exhibits 3, 4 and 5. We cannot see how in this setting, the fact that the jury knew of the prior claims of privilege on the two earlier dates, could have had any impact on the jury or to have in any way affected their verdict. The error if any, was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

(c) The Grunewald Case is Not Controlling.

Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) is urged upon us as controlling. We do not have occasion to consider any constitutional problems arising under Grunewald, since as shown, the constitutional question was not raised below. In addition, the prior transcripts were offered as relevant to the issue of intent, a matter not considered in Grunewald.

In Grunewald, the defendant's prior claim of his Fifth Amendment privilege was used to impeach the defendant as a prior inconsistent statement. Not so here. Next the court held the prior invocation of the privilege was proper and was not in fact inconsistent with the defendant's testimony at trial. (page 419-424, 77 S.Ct. 963). No such claim of inconsistency was made here.

It is contended that counsel for the Government argued to the jury that the claim of the privilege by the appellant was inconsistent with his subsequent testimony. We do not so read the record. The argument stressed the willfulness inherent in a deliberate attempt to shield others and to avoid the sanctions of the contempt order. No objection to the argument was made in the court below and cannot now be raised. Devine v. United States, supra.

Lazarus was convicted of counts 1, 4 and 7 and received concurrent sentences. The bookmaking records which were offered in evidence concerned only counts 4 and 7. The subject of count 1 was Lazarus' testimony that he did not use the telephone in the Palm Springs house, and that he did not see anyone else do so. Since we hold the conviction good as to count 1, there is no occasion to examine the problem of the bookmaking records as to counts 4 and 7, on which concurrent sentences were imposed.

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) does not undermine the concurrent sentence doctrine. United States ex rel. Weems v. Follette, (2 Cir.1969) 414 F.2d 417; United States v. Barsaloux, (5 Cir.1969) 419 F.2d 1299. See, Keith v. United States, (9 Cir. 1970) 421 F.2d 1295.

We find no merit in appellant's final contention that there was error in the denial of his motion for a judgment of acquittal.

The judgment is affirmed.