# Petition — Tucker v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 958

## Text

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

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TABLE OF AUTHORITIES
Cases:

Beverly v. United States, 468 F.2d 732 (Sth Cir.,
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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
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Federal Rules of Criminal Procedure:

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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.

---

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