Petition — Tucker v. United States

THR FEB 20 1976

Supreme Court of the AnedeStates cievx

OCTOBER TERM, 1975

Nn. @5-1192

WILLIAM PRENTIS TUCKER,

DAISY BELL HUGHES, and

RONALD H. JACKSON,

Petitioners,

UNITED STATUS OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OSCAR B. GOODMAN, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101 Attorney for Petitioner:

Attorney for Petitioner: DAISY BELL HUGHES

WILLIAM PRENTIS TUCKER VIRGIL H, SHEPARD, ESQ,

FLOYD M. BUFORD, ESO. American Federal Building

Byrd, Groover & Buford Macon, Georgia 31201

165 First Street Attorney for Petitioner:

Macon, Georgia 31201 RONALD H. JACKSON

Wathingen, OC @ CLA PUBLISHERS « LAW PRINTING CO. « (70?) 399.0875

(i)

TABLE OF CONTENTS

OPENDON BELOW noses nce ccseveevveceevecenes

TURIBDICTION wcuicccsecccccerereescseseceees

QUESTIONS PRESENTED FOR REVIEW ..........4.5.

STATUTORY PROVISIONS INVOLVED ........ 0.055.

1, THE DISTRICT COURT ERRED IN DENY-

ING PETITIONERS’ MOTIONS FOR DIS-

CLOSURE OF ILLEGAL ELECTRONIC

INTERCEPTIONS ABSENT AN AFFI-

DAVIT FROM THE GOVERNMENT

AFFIRMING OR DENYING’ THE

EXISTENCE OF SUCH INTERCEPTIONS ........

il, THE DISTRICT COURT ERRED IN DENY-

ING PETITIONERS’ MOTIONS FOR JUDG.-

8: yy 7 \ Sr

oti BPPETEREREEEEELERERE EEE EERE REET

TABLE OF AUTHORITIES

Cases:

Beverly v. United States, 468 F.2d 732 (Sth Cir.,

TOE cece decneeenscceccnesesesenececones

Gelbard v. United States, 408 US. 41) ©...

In re Evans, 452 F.2d 1239 (D.C, Cir., 1971), cert.

den., 408 U.S. 930, 92 S.Ct, 2479, 33 L.Bd.2d

ee rare eye erTL eT eT CPE CEES

in re Grumbles, 453 F.2d 119 (3rd Ciry, 1971) 6

United States v. Bridges (Sth Cir,, 1974), 493 F.2d

eS ee Oe err e rire Pe wee ee ee ae ee

Statutes and Rule: Page

RE BEE vn cenvsccwWeccbdatecenecescccenss 4

. ) 00) AAO eee eee ee ee 2, 4-5, 6

TDS! a) |. i rrrerrererrerery rir 4

L'a) | rer rerrreerae rc rery yf 6

i! | > || SPP eTreeeTeUrEeeeTriTe 3,5

WB TRB. BED ccc eta ee cc tceesccseccsecen 3, 5,6

e's BURIED ccc ccc e eesecceseseccencees 2

Federal Rules of Criminal Procedure:

i PPT Terre ererrerererererrri 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No,

WILLIAM PRENTIS TUCKER,

DAISY BELL HUGHES, and

RONALD H., JACKSON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, WILLIAM PRENTIS TUCKER,

DAISY BELL HUGHES and RONALD H. JACKSON,

pray that a Writ of Certiorari issue to review the

opinion and judgment of the United States Court of

Appeals for the Fifth Circuit entered in this matter on

January 22, 1976,

2

OPINION BELOW

The judgment of the District Court for the Middle

District of Georgia was affirmed by the Court of

Appeals for the Fifth Circuit in an opinion entered

January 22, 1976, The opinion and judgment of the

Court of Appeals is attached hereto as Appendix “A”.

JURISDICTION

The opinion and judgment of the Court of Appeals

was entered on January 22, 1976. The jurisdiction of

this Court is invoked under Title 28, United States

Code, Section 12£4(1),

QUESTIONS PRESENTED FOR REVIEW

|, Whether the District Court erred in denying

defense motions for disclosure of illegal electronic

interceptions absent an affidavit from the Government

affirming or denying the existence of such inter-

ceptions,

2. Whether the District Court erred in denying

Petitioners’ motions for judgment of acquittal.

STATUTORY PROVISIONS INVOLVED

§ 1955. Prohibition of illegal gambling businesses

(a) Whoever conducts, finances, manages, super-

vises, directs, or owns all or part of an illegal

gambling business shall be fined not more than

$20,000 or imprisoned not more than five years,

or both.

3

(b) As used in this section—

(1) “‘illegal gambling business” means a gam-

bling business which—

(i) is a violation of the law of a State or

political subdivision in which it is conducted;

(ii) involves five or more persons who

conduct, finance, manage, supervise, direct, or

own all or part of such business; and

(iii) has been or remains in substantially

continuous operation for a period in excess of

thirty days or has a gross revenue of $2,000 in

any single day. —

(2) “gambling” includes but is not limited to

pool-selling, bookmaking, maintaining slot ma-

chines, roulette wheels or dice tables, and

conducting lotteries, policy, bolita or numerous

games, or selling chances therein.

(3) “State” means any State of the United

States, the District of Columbia, the Common-

wealth of Puerto Rico, and any territory or

possession of the United States.

§ 2515. Prohibition of use as evidence of intercepted

wire or oral communications.

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived therefrom

may be received in evidence in any trial, hearing,

or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body,

legislative committee, or other authority of the

United States, a State, or a political subdivision

thereof if the disclosure of that information would

be in violation of this chapter.

§ 3504. Litigation concerning sources of evidence.

(a) In any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer,

4

agency, regulatory body, or other authority of the

United States—

(1) upon a claim by a party aggrieved that

evidence is inadmissible because it is the primary

product of an unlawful act or because it was

obtained by the exploitation of an unlawful act,

the opponent of the claim shall affirm or deny the

occurrence of the alleged unlawful act;

* *« *

(b) As used in this section “‘unlawful act’’ means

any act the use of any electronic, mechanical, or

other device (as defined in section 2510(5) of this

title) in violation of the Constitution or laws of

the United States or any regulation or standard

promulgated pursuant thercto.

STATEMENT OF THE CASE

Petitioners herein, along with two other individuals

were indicted by a Federal Grand Jury sitting in the

Middle District of Georgia. The indictment charged

conspiracy (18 U.S.C. §371) and illegal gambling (18

U.S.C. §§ 1955 and 2). Following entry of not guilty

pleas, various motions were filed, including motions for

disclosure of illegal electronic interceptions. The trial

court denied these motions two days after their receipt.

This ruling was made without benefit of a hearing or

any response whatsoever by the Government.

During the trial of the Petitioners the Government

called some sixteen Government agents and seven

unindicted co-conspirators who testified.

At the conclusion of the Government’s case-in-chief,

the Petitioners moved for a judgment of acquittal upon

the ground, inter alia, that the evidence was insufficient

to support a conviction for violation of Title 18 U.S.C.

5

§ 1955(a). This motion was denied and the case was

submitted to the jury which returned guilty verdicts as

to the Petitioners.’

REASONS FOR GRANTING THE WRIT

I.

THE DISTRICT COURT ERRED IN DE-

NYING PETITIONERS’ MOTIONS FOR DIS-

CLOSURE OF ILLEGAL ELECTRONIC IN-

TERCEPTIONS ABSENT AN AFFIDAVIT

FROM THE GOVERNMENT AFFIRMING.

OR DENYING THE EXISTENCE OF SUCH

INTERCEPTIONS.

That the Government is precluded from using any

evidence derived directly or indirectly from any illegal

electronic surveillance is established by 18 U.S.C.

§2515 and Gelbard v. United States, 408 U.S. 41.

Moreover, the Government must come forward and

affirm or deny the existence of any such surveillance,

18 U.S.C. § 3504, Gelbard v. United States, supra; In re

Evans, 452 F.2d 1239 (D.C. Cir., 1971), cert. den., 408

U.S. 930, 92 S.Ct. 2479, 33 L.Ed. 2d 342; Beverly v.

United States, 468 F.2d 732 (Sth Cir., 1972); In re

Grumbles, 453 F.2d 119 (3rd Cir., 1971); and they

must come forward with such affirmation or denial on

the simple assertion that illegal electronic surveillance

took place, 18 U.S.C. § 3504, Jn re Evans, supra. |

'The other two indicted individuals changed their pleas to

guilty immediately prior to the commencement of the trial.

6

The allegations in this case of possible illegal

electronic surveillance must be viewed in light of the

Court’s denial of defense motions to discover in-

formation concerning wiretaps.? “Under such cir

cumstances it is felt that a valid claim under 18 U.S.C.

§ 3504 was asserted and the Court of Appeals erred in

affirming the denial of the motions for disclosure

without requiring the Government to affirm or deny

the existence of such materials as requested.

THE DISTRICT COURT ERRED IN DENY-

ING PETITIONERS’ MOTIONS FOR JUDG-

MENT OF ACQUITTAL.

At the close of the prosecution’s case, Petitioners

made timely motions for judgments of acquittal under

Rule 29(a), Federal Rules of Criminal Procedure. The

motions were denied.

One of the grounds urged in support of the motions

was the insufficiency of the evidence presented at trial

to support a conviction under the standards set forth

by this Court in United States v. Bridges (Sth Cir.,

1974), 493 F.2d 918. In Bridges, Court held that a

conviction under 18 U.S.C. §1955(a) requires the

appropriate quantum of proof that a minimum of five

2In their motions for discovery Petitioners had requested

copies of any orders authorizing wiretaps, disclosure of any

Court Orders permitting same, documents authorizing wiretaps

under color of 18 U.S.C. §2511, the narre and model of any

devices used to co:.duct interceptions and an opportunity to hear

any recordings made.

7

persons were involved in the gambling business during

the requisite thirty days of its substantially continuous

operation, or on a day with a gross revenue of at least

$2,000.00. A review of the record of this trial fails to

disclose an evidentiary basis for fulfilling these

requirements.

CONCLUSION

For the above reasons a Writ of Certiorari should

issue to review the judgment of the United States Court

of Appeals for the Fifth Circuit.

OSCAR B. GOODMAN, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Attorney for Petitioner:

WILLIAM PRENTIS TUCKER

FLOYD M. BUFORD, ESQ.

Byrd, Groover & Buford

165 First Street

Macon, Georgia 31201

Attorney for Petitioner:

DAISY BELL HUGHES

VIRGIL H. SHEPARD, ESQ.

American Federal Building

Macon, Georgia 31201

Attorney for Petitioner:

RONALD H. JACKSON

la

APPENDIX “A”

UNITED STATES, of America,

Plaintiff-Appellee,

v.

William Prentis TUCKER, Daisy Bell

Hughes, and Ronald H. Jackson,

Defendants-Appellants.

No. 75-1478.

United States Court of Appeals,

Fifth Circuit.

Jan. 22, 1976.

Appeals from the United States District Court for the

Middle District of Georgia.

Before BROWN, Chief Judge, RIVES and GEE,

Circuit Judges.

GEE, Circuit Judge:

William Prentis Tucker, Daisy Bell Hughes and

Ronald H. Jackson were convicted and given concurrent

sentences On one count of violating the five-man

gambling statute, 18 U.S.C. § 1955, and one count of

conspiring to do so in violation of 18 U.S.C. § 371.

These convictions were based on their operation of a

Macon, Georgia lottery, whose winners were determined

by the total volume on the New York Stock Exchange.

On appeal, they assert errors in the disposition of their

pretrial motions, in the conduct of the trial, and in the

substance of their convictions. Finding the entire

panoply of objections to be without merit, we affirm.

2a

I. PRETRIAL MOTIONS

{1} Tucker and Hughes filed a number of pretrial

motions and now argue that the district court erred in

handling four of them.' Their first point is that the

court should have suppressed the evidence obtained in a

search of Hughes’ house trailer and Tucker’s person on

their personal “Black Tuesday,” December 18, 1973.

Specifically, they assert that the warrants under which

these searches were conducted were defective under

Aguilar vy. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12

L.Ed.2d 723 (1964), and that there was no probable

cause.

{2, 3] When, as here, a search warrant is issued on

an affidavit reciting the tip of an unna.ned informant,

Aguilar’s familiar two-pronged test normally requires

that the affidavit disclose particular facts or circum-

stances which justify concluding that the informant is a

reliable or trustworthy person and specific facts or

circumstances tending to demonstrate that the in-

formant has gathered his information in a reliable

manner. United States v. Chavez, 482 F.2d 1268, 1270

(Sth Cir. 1973). With respect to Informants One and

‘In argument, appellants’ counsel also contended that the

district court erred in denying motions for bills of particulars and

in permitting noncompliance with the court's order requiring the

prosecution to disclose inducements to co-conspirators or

prosecution witnesses. The denial of a bill of particulars is

reversible only on a showing of prejudice or a clear abuse of

discretion by the trial court. E.g., United States v. Bearden, 423

F.2d 805, 809 (Sth Cir.), cert. denied, 400 U.S. 836, 91 S.Ct.

73, 27 L.Bd.2d 68 (1970). Appellants have not made such a

showing. While the record indicates that the government never

responded to the order requiring disclosure, nothing in the record

indicates that its silence was a noncompliance with the order,

3a

Three,? Aguilar’s first prong is satisfied by an explicit

claim of past reliability.’ Additionally, each informant’s

tip was extremely detailed, and Informant One’s tip

contained a declaration against penal interest. See

United States v. Harris, 403 U.S, 573, 91 S.Ct. 2075,

29 L.Ed.2d 723 (1971); United States v. Chavez, supra.

Aguilar’s second prong is satisfied by statements that

both informants obtained their information through

either personal observations or personal conversations

with specified participants in the lottery. Additionally,

numerous details of Informant One’s information were

confirmed by independent police surveillance. See

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3

L.Ed.2d 327 (1959); Gonzales v. Beto, 425 F.2d 963

(Sth Cir.), cert, denied, 400 U.S, 928, 91 S.Ct. 194, 27

L.Ed.2d 189 (1970). This combination of informants’

tips and police observations on several occasions over a

four-month period is amply sufficient to warrant a man

of reasonable caution in the belief that an offense has

been or is being committed, and it therefore constitutes

probable cause. Brinegar »v. United States, 338 U.S. 160,

69 S.Ct. 1302, 93 L.Ed. 1879 (1949),

[4] Tucker and Hughes argue that the district court

erred in denying their motions to compel disclosure of

——

?The district court suppressed evidence derived from

Informant Two's information. The government does not appeal

‘hat decision, and appellants do not allege that any evidence was

admitted in violation of that order,

*The FBI agents’ affidavit stated that Informant One had

been contacted at least ten times in the previous six months and

in each instance had provided information which had proven

accurate “through contact with other sources and/or independent

investigation.” A comparable statement is made about Informant

Three.

4a

any electronic surveillance without requiring of the

government a formal denial of unlawful surveillance.

These motions were accompanied by counsels’

memoranda stating, “Defendants allege that the Govern-

ment may have conducted illegal electronic surveillance

on them and their attorneys, both past and present.”

(emphasis added). Tucker and Hughes rely on 18 U.S.C.

§ 3504(a)(1), which provides:

[U] pon a claim by a party aggrieved that evidence

is inadmissible because it is the primary product of

an unlawful act or because it was obtained by the

exploitation of an unlawful act, the opponent of

the claim shall affirm or deny the occurrence of

the alleged unlawful act....

We hold that the district court was correct in ruling

that Tucker and Hughes failed to make a “claim”

sufficient to trigger this statute, and therefore the

denial of their motions was proper.

[5] This circuit has already defined the specificity

required in a statutory “claim” of surveillance of an

attorney, Beverly v, United States, 468 F.2d 732, 752

(Sth Cir, 1972), and appellants’ simple motions and

briefs are clearly insufficient. However, this circuit has

never defined what is required of a criminal defendant's

own “claim” of surveillance. We tend to agree with the

Second, Ninth and D.C. Circuits* that a “mere

assertion” of unlawful surveillance is enough to trigger

the government’s obligation to affirm or deny.

However, such an “assertion’’ must be, at a minimum, a

“United States v. Vielguth, 502 F.2d 1257 (9th Cir, 1974);

United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); In re

Evans, 146 US. App. D.C. 310, 452 F.2d 1239 (1971); cert.

denied, 408 U.S. 930, 92 S.Ct. 2479, 33 L.Bd.2d 342 (1972).

Sa

positive statement that unlawful surveillance has taken

place. A generalized motion based on the possibility of

such surveillance, which is all that is present here, is not

a “claim” within the. meaning of 18 U.S.C.

§ 3504(a)(1).

Our recognition that less specificity is required of a

defendant claiming surveillance of himself than is

required when he claims surveillance of his attorney

should not be construed as approval of naked assertions

of surveillance. Nor does it trench in any way upon our

holding in United States v, Stevens, 510 F.2d 1101 (Sth

Cir, 1975), that the adequacy of the required

government denial depends on the specificity of the

allegation of illegality. As in the area of attorney

surveillance, the district court retains wide latitude to

strike the necessary balance between due regard for a

defendant’s constitutional rights and the right of the

United States to proceed with reasonable promptness in

its investigations and prosecutions. See Beverly vy.

United States, supra.*

[6, 7] Tucker and Hughes filed pretrial motions to

obtain disclosure of the grand jury records of voting

and the grand jury testimony of government witnesses

who were not called at trial. A defendant must show

“particularized need” to justify infringement of the

secrecy surrounding a grand jury. Posey yv. United

States, 416 F.2d 545 (Sth Cir. 1969), cert. denied,

ae ee ee ee

*In view of our disposition of this issue, we do not reach the

issues of the propriety or sufficiency of the affidavits of denial

submitted by the government to this court. However, we note

that these affidavits are far more limited and equivocal in their

denials of surveillance than anything yet accepted as an adequate

statutory ‘‘denial.” See United States v, Vielguth, supra n. 4

(Chambers, J., dissenting).

6a

Snowden v, U.S., 397 US. 946, 90 S.Ct. 964, 25

L.Ed.2d 127 (1970). Appellants’ unsubstantiated

assertions of improprieties before the grand jury do not

approach such a showing. United States v. Howard, 433

F.2d 1 (Sth Cir. 1970), cert. denied, 401 U.S, 918, 91

S.Ct. 900, 27 L.Ed.2d) 819 (1971). The accompanying

motions to dismiss those counts of the indictment

allegedly not approved by a majority of the grand jury

were likewise properly denied,

[8, 9] Finally, appellants argue that the district

court erred in denying them access to the jury lists

before the day of trial. The timing of disclosure of

jurors is up to the trial court. Stone v. United States,

324 F.2d 804 (Sth Cir. 1963) cert, denied, 376 U.S.

938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), 28 U.S.C,

§ 1863(b)(8), which authorizes delayed disclosure of the

jury lists when required by the “interests of justice,”

does not eliminate the court's discretion, and a showing

of arbitrariness is required to reverse the trial court’s

decision. United States v. Stokes, 506 F.2d 771, 777

(Sth Cir. 1975). Appellants make no such showing.

Il, CONDUCT OF TRIAL

{10, 11] All three appellants forcefully object to the

trial judge’s conduct in furnishing each juror with a

pencil and a photocopy of the indictment before trial.

— eee SS ——

The Jencks Act, 18 U.S.C. § 3500 (Supp. 1975), amending

18 US.C. §3500 (1969), is not pertinent to these pretrial

motions because it requires disclosure only after a witness

testifies on direct examination. Appellants do not contend that

the Jencks Act was violated in this case.

i aaa ec a ee

7a

They argue that allowing the jury to retain a copy of

the indictment throughout trial as a “script” of the

proceedings was prejudicial. Although we are mildly

skeptical of this procedure, the potential for prejudice

was avoided here by specific instructions, delivered

shortly before and repeated immediately after the

copies of the indictment were distributed, to the effect

that the indictment was not evidence.’ Since it is

permissible for a properly instructed jury to have copies

of the indictment during deliberation,® the procedure

followed here is permissible; however, we reiterate the

need for full and timely cautionary instructions,

[12-14] Appellants also object to the trial judge’s

decision to limit their peremptory challenges to the

minimum of ten required by Fed.R.Crim.P. 24(b).

Although they recognize that the decision to grant

additional peremptories is a matter within the trial

judge’s discretion, they argue that there was an abuse of

discretion here. The record indicates that the trial judge

initially granted additional peremptories to the

defendants and to the government but that he withdrew

all additional challenges when defense counsel argued

that he had no authority to grant additional

peremptories to the government. Assuming arguendo

"These timely curative instructions distinguish our case from

United States v. Baker, 418 F.2d 851 (6th Cir. 1969), cert.

denied, 397 US. 1015, 90 S.Ct. 1248, 25 L.Ed.2d 429 (1970)

(distribution of copies of indictment without cautionary

instruction was harmless error).

*United States v. Frick, 490 F.2d 666, 671 (Sth Cir. 1973),

cert. denied, Peterson v. U.S., 419 US, 831, 95 S.Ct. 55, 42

L.Ed.2d 57 (1974).

—— EE ea

that defense counsel were correct in this argument,’ it

is nonetheless permissible for the parties to stipulate for

additional peremptories by both sides. E.g., United

States v. Mitchell, 384 F.Supp. 564 (D.D.C, 1974). As

a corollary of these principles, it is within the trial

court’s discretion to condition the grant of additional

peremptories to the defendants upon such a stipulation.

Id. We are convinced that this posture was the essence

of the trial court’s final ruling on the issue of

peremptories in this case.

Finally, appellants object to several portions of the

court’s instructions to the jury. We view the instruc-

tions as a whole’® and find appellants’ objections to be

without merit.

Il. SUBSTANTIVE CLAIMS

{15, 16] Appellants make a general objection to the -

sufficiency of the evidence, but we find the evidence to

be more than sufficient when viewed in the light most

favorable to the government, as required by Glasser v.

United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680

(1942). However, appellants also argue that the

evidence is insufficient to establish the requisite

jurisdictional fact that each defendant was a participant

in the illegal gambling operation for a 30-day period.

*Their argument is based on the inferences from the last

sentence of Fed.R.Crim.P. 24(b), which provides:

If there is more than one defendant, the court may allow

the defendants additional peremptory challenges and permit

them to be exercised separately or jointly.

06 @, United States v. Cisneros, 491 F.2d 1068 (Sth Cir.

1974).

9a

This argument rests on a misunderstanding of the

jurisdictional requirements of 18 U.S.C. § 1955. Once

the evidence demonstrates that the five-man/ 30-day

jurisdictional test is met,'’ it is not necessary for the

conviction of one joining the enterprise that he be a

participant for thirty days. United States v. Marrifield,

515 F.2d 877, 882 (Sth Cir. 1975).

Finally, appellants’ challenge to the constitutionality

of 18 U.S.C. §1955 is foreclosed by United States vy.

Harris, 460 F.2d 1041 (Sth Cir.), cert. denied, 409 U.S.

877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972).

Affirmed. |

"Here the government called five witnesses who adinitted

participation in this lottery for more than thirty days.