Petition — Villano v. United States

MICHAEL RODAK, JR.,CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

vo. #5 - ] 34 9

PAUL CLYDE VILLANO and PAULINE SMALDONE,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Tenth Circuit

IRL B. BARIS

721 Olive Street

“~~, St. Louis, Missouri 63101

and

JOSEPH SAINT-VELTRI

DAVIES and SAINT-VELTRI

538 Majestic Building

Denver, Colorado 80202

Attorneys for Petitioners

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

a al

INDEX

Page

ova he Wka ees Ka ndendcaehesensa eens l

I PEED Per ere fe ee Peery 2

ee Ue a SL oe ake wt eS 2

Constitutional Provisions and Statutes Involved ........ 3

cece ae weeds lt as shake eee eae 6

Reasons for Granting the Writ .............000-0008. 12

I. Sufficiency of the evidence .................-. 12

II. Illegal electronic surveillance ................. 20

ee. Se I vn cab ndo's ee es made enneds 26

IV. Double jeopardy (prior state charges) ....... c =

V. Telephone voice identification ................ 31

CE vetvencdhes tes etue kba6 bis Wee ek Oke OK 34

Appendix A—Opinion of Court of Appeals, dated January

is due Janes fered kad eae tee ceeee eee A-1

Appendix B—Judgment of Court of Appeals, dated Janu-

ee a sc vbw eb bb sna keeasseans ot A-27

Appendix C—Judgment of Court of Appeals, dated Janu-

a ay Ps EE 0 6 bee sewisccvcaveecapeaes A-29

Appendix D—Order of Court of Appeals, dated February

Boe Se GH GENIE go ence cvesevecsccescs A-31

Cases

Alderman v. United States, 394 U.S. 165 (1969) ....... 2,22

Ashe v. Swenson, 397 U.S. 436 (1970) ............... 30

Baker v. Hudspeth, 129 F. 2d 779 (10th Cir. 1942)..... 27

Chapman v. California, 386 U.S. 18 (1967) ........... 26

Cwach v. United States, 212 F. 2d 520 (8th Cir. 1954).. 33

Dennis v. United States, 302 F. 2d 5 (10th Cir. 1962).... 28

Estes v. Texas, eee ee ee CO... wa ceeds evceacs 26

Haas v. United States, 344 F. 2d 56 (8th Cir. 1965) ..... 33

Hoffa v. United States, 387 U.S. 231 (1967) ........... 23

Irvin v. Dowd, 366 U.S. 717 (1961)

Kansas Electric Supply Company, Inc. v. Dun & Brad-

street, Inc., 448 F. 2d 647 (10th Cir. 1971), cert. den.

ee ee ee as 33-34

Kastigar v. United States, 406 U.S. 441 (1972) ........ 23

Kolod v. United States, 390 U.S. 136 (1968) .......... 23

Mares v. United States, 383 F. 2d 805 (10th Cir. 1967). .26, 29

Murphy v. Florida, 421 U.S. 794 (1975) ............. 26

National Labor Relation. Board v. Carpet, Linoleum and

Resilient Tile Layers Local Union No. 419, 213 F. 2d

PE EN is o's we cn ea oe bee cee monies 33

O'Callahan v. Parker, 395 U.S. 258 (1969) ........... 30

Pamplin v. Mason, 364 F. 2d 1 (Sth Cir. 1966) ........ 26

Pennsyivania v. Mills, 286 A. 2d 638 (Pa. 1971) ....... 30

Rewis v. United States, 401 U.S. 808 (1971)..... 2, 13, 20, 29

Richards v. United States, 380 U.S. 909 (1965) ........ 33

Rideau v. Louisiana, 373 U.S. 723 (1963) ........... 26, 28

Sheppard v. Maxwell, 384 U.S. 333 (1966) ........... 26-27

Silverthorne v. United States, 400 F. 2d 627 (9th Cir. 1968) 26

Spindler v. United States, 366 F. 2d 678 (9th Cir. 1964),

ns ee ee Ls a bree ee 33

United States v. Altobella, 442 F. 2d 310 (7th Cir. 1971) 15, 31

United States v. Archer, 486 F. 2d 670 (2nd Cir. 1973).. 15

United States v. Barnes, 383 F. 2d 287 (6th Cir. 1967),

cert. dem. S89 US. 1060 (1968) .. 2... ccc cece 17

“ee

United States v. Bear Runner, 502 F. 2d 908 (8th Cir.

Te cep he Ocha eeearveseauN's 29

United States v. Cantor, 469 F. 2d 435 (3rd Cir. 1972)... 17

United States v. Colabella, 448 F. 2d 1299 (2nd Cir. 1971) 29

United States v. Cox, 449 F. 2d 679 (10 Cir. 1971), cert.

ce Ct oY ea a 33

United States v. Donaway, 447 F. 2d 940 (9th Cir. 1971) 17

United States v. Honeycutt, 311 F. 2d 660 (4th Cir. 1962) 17

United States v. Huss, 482 F. 2d 38 (2nd Cir. 1973). . .23, 24

United States v. Johns, 444 F. 2d 58 (Sth Cir. 1971)..... 17

United States v. McCormick, 442 F. 2d 316 (7th Cir.

So 2 ease ne gee eee 6 HR OWES Se <6 15, 16

United States v. Moa, 251 F. 2d 255 (2nd Cir. 1958)... 33

United States v. Presley, 478 F. 2d 163 (6th Cir. 1973).. 17

United States v. Smaldone, 485 F. 2d 1333 (10th Cir.

1973), cert. den. 416 U.S. 936 (1974) ............. 18

United States v. Turner, 423 F. 2d 481 (7th Cir. 1970),

ee ee, Se Ge ee CUED 0 06s so iic ee seceqgees 33

Waller v. Florida, 397 U.S. 387 (1970) .............. 29

Statutes

ee ee ee oa vc acacee beeen 2, 3, 4, 6, 7, 12, 13, 18

rr rece bau asi nns en 3, 5, 25, 26

Miscellaneous

Federal Rules of Evidence 901(b)5 and 901(b)(6) ...... 33

Constitutioal

SRP OSES ETT Pee eETTECTTOTT TCT Te 3

Ne deb bubs 86606009 4, 30

i eS el kee ae bbeeee ew ees 30

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

irae

PAUL CLYDE VILLANO and PAULINE SMALDONE,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Tenth Circuit

Paul Clyde Villano and Pauline Smaldone, your petitioners,

respectfully pray that a writ of certiorari be issued to review

the judgments of the United States Court of Appeals for the

Tenth Circuit entered in the above entitled cause on January

8, 1976.

OPINIONS BELOW

This cause was decided by a panel of the United States Court

of Appeals for the Tenth Circuit on January 8, 1976, in an

opinion which has not yet been officially reported. (Excerpts

pa poe

appear at 18 CrL 2381.) The opinion is reproduced as Ap-

pendix A hereto.

On February 17, 1976, the Court of Appeals denied peti-

tioners’ petition for rehearing and suggestion of appropriateness

of rehearing in banc. (See Appendix D.) No opinion ‘vas written,

and the order has not been officially reported.

JURISDICTION

The judgments of the United States Court of Appeals were

entered on January 8, 1976. (See Appendix B and C.) A timely

petition for rehearing with suggestions of appropriateness of

rehearing in banc was denied on February 17, 1976. (See Ap-

pendix D.)

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

I

Whether, in the light of Rewis v. United States, 401 U.S. 808

(1971), there was an insufficiency of evidence to prove a viola-

tion of the Travel Act (18 U.S.C. § 1952).

|

Whether the prosecution’s evidence was tainted by admittedly

illegal electronic surveillance, including the questions of

A. Whether there was a proper taint hearing under Alderman

v. United States, 394 U.S. 165 (1969),

— oa

B. Whether petitioners were entitled to inspect airtels and

other documents related to the wiretaps, and

C. Whether i8 U.S.C. § 3504 may constitutionally impose

a statute of limitations on hearings to determine taint.

Ill

Whether prejudicial pre-trial publicity, as demonstrated by a

public opinion survey and the voir dire examination, required

a transfer of the cause to another forum for trial.

IV

Whether petitioners were subjected to double jeopardy in

this prosecution for gambling violations under 18 U.S.C. § 1952

after having been previously convicted of state gambling offenses

involving concurrent dates.

v

Whether evidence of telephone conversations was properly

admitted without adequate foundation and identification of peti-

tioners’ voices.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Constitution of the United States

Fourth Amendment

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

—

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particu-

larly describing the place to be searched, and the persons or

things to be seized.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.

Statutes of the United States

Title 18, United States Code

§ 1952. Interstate and foreign travel or transportation in aid of

racketeering enterprises

(a) Whoever travels in interstate or foreign commerce or uses

uny facility in interstate or foreign commerce, including the mail,

with intent to—

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlaw-

ful activity; or

(3) otherwise promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or

carrying on, of aay unlawful activity,

niin

und thereafter performs or attempts to perform any of the acts

specified in subparagraphs (1), (2), and (3), shall be fined not

more than $10,000 or imprisoned for not more than five years,

or both.

(b) As used in this section “unlawful activity” means (1) any

business enterprise involving gambling, liquor on which the

Federal excise tax has not been paid, narcotics, or prostitution

offenses in violation of the laws of the State in which they are

committed or of the United States, or (2) extortion, bribery, or

arson in violation of the laws of the State in which committed

or of the United States.

(c) Investigations of violations under this section involving

liquor or narcotics shall be conducted under the supervision of

the Secretary of the Treasury.

§ 3504. Litigation concerning sources of evidence

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

court, grand jury, department, officer, 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 unlaw-

ful 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;

(2) disclosure of information for a determination if evi-

dence is inadmissible because it is the primary product of

an unlawful act occurring prior to June 19, 1968, or be-

cause it was obtained by the exploitation of an unlawful

act occurring prior to June 19, 1968, shall not be required

unless such information may be relevant to a pending claim

of such inadmissibility; and

—_ =

(3) no claim shall be considered that evidence of an event

is inadmissible on the ground that such evidence was ob-

tained by the exploitation of an unlawful act occurring prior

to June 19, 1968, if such event occurred more than five

years after such allegedly 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 pro-

mulgated pursuant thereto.

STATEMENT

Petitioners, Paul Clyde Villano and Pauline Smaldone, were

convicted on all counts of a three-count indictment alleging

violations of Title 18, United States Code, Sections 1952 and

2 (R IX 1-2).* Petitioners were tried jointly. They filed sep-

arate notices of appeal (R IX 110, 111), but the appeais were

consolidated. They filed a joint brief in the Court of Appeals,

which issued a single opinion disposing of their appeals. (See

Appendix A.)

The language of each count of the indictment was identical

except for the dates. Each count charged that during the pe-

riod designated “within the State and District of Colorado, Paul

Clyde Villano and Pauline Smaldone did use, cause to be used,

and aid and abet the using of a communication facility in

interstate commerce, that is, the interstate telephone, between

Nebraska and Colorado, with intent to promote, manage, es-

» by By record filed in the Court of Appeals and certi-

fied to this Court consists of nine separate volumes, of which eight

are transcripts of courtroom proceedings and the ninth is the record

of pleadings. References to the record (R) in this brief shall be

to — (in Roman numeral) and the page (in Arabic

numeral ).

= ae

tablish, carry on and facilitate the promotion, management,

establishment and carrying on of an unlawful activity, said

unlawful activity being a business enterprise involving gam-

bling in violation of Chapter 40, Article 10, Sections 7, 8

and 9, Colorado Revised Statutes 1963, as then amended, and

thereafter Paul Clyde Villano and Pauline Smaldone did per-

form, cause to be performed, and aid and abet the perform-

ance of acts to promote, manage, establish, carry on and facili-

tate the promotion, management, establishment and carrying on

of said unlawful activity, all of the foregoing in violation of

Title 18, United States Code, Sections 1952 and 2”.

Count I charged an offense “during the period from on or

about the Ist day of November, 1970, to on or about the 31st

day of December, 1970." Count II covered the month of Jan-

uary, 1971, and Count III covered the month of February,

1971. The indictment was filed on January 11, 1974 (R IX 1).

After rulings on various pre-trial motions, some of which

are relevant to the issues raised in this petition and will be

discussed more fully in the Reasons section of this petition,

trial commenced on May 6, 1974, in the United States District

Court for the District of Colorado at Denver, the Hon. Alfred

A. Arraj presiding. After the jury was impaneled and sworn

(R V 91), testimony began and was concluded on May 7, 1974.

‘See Volumes V and VI of the Record.) Final arguments were

presented on May 8, 1974 (R VII 404-451), followed by the

Court's instructions (R VII 451-463); the verdict of the jury

was returned on May 8, 1974 (R VII 469-470, R IX 86, 87).

The only evidence came from witnesses and exhibits pro-

duced by the prosecution, except for petitioners’ Exhibit A, a

calendar of dates in 1970 and 1971. Neither petitioner offered

any evidence. The evidence in behalf of the prosecution tended

to show the following:

Frank Carlo Amato, at the suggestion and direction of a per-

son unknown to him, operated several telephones in Denver,

—

Colorado, over which he received betting information and bets

on sporting events in November and December of 1970 and

January of 1971 (R V 142, R VI 245-247). Upon the receipt

of bets by him from various customers whose ‘dentities he did

not know and who used code numbers, he relayed the betting

information by telephone to two women, one of whom he iden-

tified as petitioner Pauline Smaldone (R V 143-144, 146-147).

(His ability to identify her voice is an issue raised in this peti-

tion, and the evidence with reference thereto is more fully de-

veloped in Question V.) He did not testify to any dealings with

petitioner Paul Villano, and the man who contacted him about

setting up the phone operation and who paid him weekly was

not Mr. Villano (R V 245-247). When he was arrested three

times on gambling charges during this time, his bond was signed

by a bondsman who had been contacted by petitioner Villano,

and he was represented by attorney Norbont (R V 148-149,

R VI 302-304, 373).

Richard Colgan operated a similar telephone in Denver over

which he received bets and discussed betting information (R V

154, 156-157). He had been recruited for his activities by

petitioner Villano (R V 154). He relayed his betting informa-

tion to 7. telephone number listed in the name of Mrs. Smaldone’s

husband for their daughter (R V 154-155, R VI 282). He called

the woman who answered “Pauline”, but he testified that he had

never met petitioner Pauline Smaldone (R VI 161, 177). (See

Question V of this petition for the evidence as to his testimony

on the issue of voice identification.) Colgan’s compensation and

reimbursement for expenses were paid to him on a regular basis

by petitioner Villano (R V 155, 178). Colgan also was arrested

and represented by attorncy Norbont, but he did not know who

paid the attorney or bond fees (R V 155-156).

Fud Ferris, Jr. was a resident of Valentine, Nebraska, and

owned restaurants in Valentine and North Platte, Nebraska (R

V 99-100). Telephone company records of Nebraska tele-

— pan

phones to which he had access indicated that station-to-station

long-distance calls were made during the period involved in the

indictment to telephone numbers operated by Amato and Colgan

(R V 113-114, 216-217, 222-223). Ferris testified that he

made the calls and placed bets under the code number X-15

(R V 100-102, 125-126). Colgan did not recall a code number

X-15 (R V 172). Amato recalled such a number but thought it

was at a later time after the indictment period; he did not know

the identity of X-15 or where the calls were from and never

heard the name Fud Ferris (R V 149, R VI 239-245). Ferris

placed bets in these telephone calls, but he did not know either

Amato or Colgan (R V 108). On two occasions he traveled to

Denver on other matters and while there he was paid his betting

winnings, but he could not identify petitioner Villano as the

man who paid him (R V 104, 120). He never paid any money

because he always won until the end, and he did not pay his

losses (R V 103, 107, 121).

Ferris was not specific as to the dates of his telephone calls

except as reflected on the telephone records. Although they in-

dicated calls in the fall of 1970 and the early part of 1971, his

testimony seemed to indicate that his bets were a year earlier,

relating particularly to the Super Bowl football game in Janu-

ary, 1970(R V 129-136).

There was no evidence that Ferris ever told Amato or Colgan

that he was calling from out-of-state. Amato testified that he

could not tell whether the calls were local or long-distance (R V

152-153), and Colgan testified that he did not know there were

any long-distance calls and assumed that all were local (R V

175-176). Colgan never told Villano that he got any calls

from Nebraska or that anyone was coming from out-of-town,

and he testified that Villano did not want to hear about anything

other than Denver (R V 179). Colgan never placed any long-

distance calls himself (R V 172). There was no testimony

that Colgan or Amato ever told the woman to whom they

relayed bets that they had received any from out-of-state.

am 10 am

Other evidence consisted of records of telephone numbers

to which Mrs. Smaldone may have had access (Pl. Exh. 4),

corroboration by neighbors of Colgan that he occupied an apart-

ment and that he apparently took bets (R V 194-196, 199), evi-

dence that Villano received bets from persons in Denver (R VI

331-334, 347-354), corroboration that Fud Ferris had access

to telephones with calls between Nebraska and Colorado (R

VI 315-316, 320-321), and other corroborative evidence by

FBI agents, telephone company employees, and local police.

At the close of the prosecution’s case, petitioners’ motions

for judgment of acquittal were overruled (R IX 70, 71, R V1

374-390). Petitioners offered no evidence and filed further mo-

tions for judgment of acquittal at the close of the entire case

(R IX 72, 73) which were overruled (R VI 399). The cause

was submitted to the jury on all three counts, and the jury re-

turned a verdict finding each petitioner guilty on all counts (R

IX 86, 87, R VII 469-470).

Petitioners filed a joint motion for judgment in accordance

with motions for acquittal or motion for new trial (R IX 88-92).

After a hearing on May 23, 1974, the motion was overruled (R

VIII 23). Thereafter, they were sentenced on June 7, 1974

(R IX 106-109).

Petitioner Villano was sentenced to a tern of imprisonment

for a period of one year and one day on each count, the sen-

tences on Counts II and III to run concurrently with the sen-

tence on Count I. In addition, he was fined the sum of $750.00

on each count, for a total fine of $2,250.00.

As to petitioner Smaldone, the imposition of her sentence

was suspended, and she was placed on probation for a period

of two years as to each count, to run concurrently. In addition,

she was fined the sum of $750.00 on each count, for a total

of $2,250.00.

Each petitioner duly filed a notice of appeal to the United

States Court of Appeals for the Tenth Circuit (R IX 110, 111),

and they have remained at liberty on bond pending appeal and

pending this petition. On January 8, 1976, a panel of the Court

of Appeals filed an opinion (Appendix A) affirming the convic-

tions. Petitioners’ timely petition for rehearing and suggestion of

appropriateness of rehearing in banc was denied on February

17, 1976 (See Appendix D.)

This joint petition for a writ of certiorari seeks to review the

judgments of the Court of Appeals affirming petitioners’ con-

victions.

—

REASONS FOR GRANTING THE WRIT

I

Sufficiency of the Evidence

The evidence in this case was insufficient to show that either

petitioner had violated the Travel Act (18 U.S.C. § 1952). The

cause should not have been submitted to the jury, and petitioners’

motions for judgment of acquittal should have been sustained

(R IX 70-73).

Although there was evidence that Amato and Colgan operated

telephones over which they received and relayed bets, the only

evidence of long-distance calls, aside from telephone company

records, was the testimony of Fud Ferris, and he related the

calls to a period of time one year before the indictment period.

But even assuming that there was sufficient evidence of the use

of an interstate facility, nevertheless we believe that this was

not sufficient to establish Travel Act violations by either peti-

tioner.

There was no evidence that petitioner Villano had any con-

nection with the Amato operation, except that he called a bonds-

man in behalf of Amato, and the bondsman testified that this

was not unusual (R VI 304). Amato in fact negated any con-

nection of petitioner Villano, for he was recruited and paid by

someone else (R V 245-247). (We admit that there was evi-

dence of petitioner Villano’s connection with the Colgan oper-

ation, although, as discussed herein, there was no evidence of

other essential elements of a Travel Act violation.)

As to Mrs. Smaldone, there was no evidence of her connec-

tion with either the Amato or Colgan operations, aside from

their opinion evidence as to her voice identification and tele-

phone contacts. See Question V of this petition as to the issue

of voice identification.

—

But even if it can be said that there was sufficient proof of

petitioners’ connections with the Amato or Colgan operations,

we still believe that under the existing law, especially Rewis v.

United States, 401 U.S. 808 (1971), no submissible case was

made against either petitioner. The best that can be said of the

prosecution evidence is that Amato and Colgan received and

relayed bets by telephone in violation of Colorado law. They

apparently assumed that all of the bettors were from the Den-

ver area (R V 152-153, 175-176). There was no evidence to

the contrary except that Fud Ferris apparently made a few calls

from Nebraska to Colorado. Thus the evidence was of a loca!

gambling business, patronized sporadically by one non-resident.

Rewis holds that this does not constitute a federal violation.

In Rewis, this Court discussed the effect of the casual inter-

state bettor and held that no violation of the letter or spirit of

the Travel Act was involved. There bettors crossed the state

line to participate in the defendants’ illegal lottery enterprise.

Admittedly, the gambling operation violated Florida law just as,

for purposes of this argument, we will concede that the Amato

and Colgan operations violated the laws of Colorado. Neverthe-

less, the fact that bettors came from Georgia to Florida did

not make the case a federal offense. If we equate interstate

travel with use of interstate facilities, as § 1952 does, then

there is no distinction between the Rewis case and the instant

case.

After holding that Congress did not intend interstate travel

by mere customers should be within the Congressional intent

of the Travel Act, this Court in Rewis stated in language which

is particularly appropriate to the facts of the instant case when

interpolated as we have taken the liberty of doing by paren-

thetical changes (l.c. 811-812):

“But we are unable to conclude that conducting a gam-

bling operation (called) by out-of-state bettors, by itself,

—

violates the Act. Section 1952 prohibits (use of interstate

facilities) with the intent to ‘promote, manage, establish,

carry on or facilitate’ certain kinds of illegal activity; and

the ordinary meaning of this language suggests that the

(caller's) purpose must involve more than the desire to

patronize the illegal activity. Legislative history of the Act

is limited, but does reveal that § 1952 was aimed pri-

marily at organized crime and, more specifically, at per-

sons who reside in one State while operating or managing

illegal activities located in another.* In addition, we are

struck by what Congress did not say. Given the ease with

which citizens of our Nation are able to (make phone

calls) and the existence of many multi-state metropolitan

areas, substantial amounts of criminal activity, traditionally

subject to state regulation, are (called) by out-of-state cus-

tomers. In such a context, Congress would certainly recog-

nize that an expansive Travel Act would alter sensitive

federal-state relationships, could overextend limited fed-

eral police resources, and might well produce situations

in which the geographic origin of (phone callers), a matter

of happenstance, would transform relatively minor state

offenses into federal felonies. It is not for us to weigh the

merits of these factors, but the fact that they are not even

discussed in the legisiative history of § 1952 strongly sug-

gests that Congress did not intend that the Travel Act

should apply to criminal activity solely because that ac-

tivity is at times (called) by persons from another State.

In short, neither statutory language nor legislative history

supports such a broad ranging interpretation of § 1952.

And even if this lack of support were less apparent, am-

biguity concerning the ambit of criminal statutes should be

* Here petitioners were not beyond the reach of Colorado state

authorities. As a matter of fact, they were prosecuted by State au-

thorities for offenses occurring at the same time as those alleged in

the federal indictment. Sec Question IV of this petition.

py om

resolved in favor of lenity, Bell v. United States, 349 U.S.

81, 83 (1955).”

The Court of Appeals attempted to find distinctions with

Rewis which are not appropriate; even if the evidence could

point to a conclusion that “the defendants situated their agents

where they carried on transactions by using telephones, receiv-

ing local and interstate calls,” the defendants in Rewis certainly

situated themselves to receive gambling activity from local and

interstate patrons. Aside from the precise nature of the gambling

operation, the facts herein cannot be distinguished from those in

Rewis.

Not only does the opinion below conflict with a decision of

this Court, but it is in conflict with decisions of other Circuits,

such as those of the Seventh Circuit in United States v. Alto-

bella, 442 F. 2d 310 (7th Cir. 1971), and United States v. Mc-

Cormick, 442 F. 2d 316 (7th Cir. 1971). See also United

States v. Archer, 486 F. 2d 670 (2nd Cir. 1973). The opinion

of the Tenth Circuit herein acknowledges that the Seventh Cir-

cuit would make “a plausible argument for reversal,” out de-

clines to follow Altobella and McCormick.

In United States v. Altobella, 442 F. 2d 310 (7ih Cir. 1971),

the defendants had extorted money from an out-of-state victim.

There was no doubt as to the defendants’ knowledge of the inter-

state activity, because they knew the victim was from out-of-state

and that he intended to obtain money by cashing a check on an

out-of-state bank, and they participated in cashing the check

through out-of-state facilities and dividing the proceeds. How-

ever, as Mr. Justice (then Circuit Judge) Stevens stated (l.c.

314, 315):

“To warrant federal intervention we believe the statute re-

quires a more significant use of a facility of interstate com-

merce in aid of the defendants’ unlawful activity than is

reflected on this record. Cf., United States v. Hawthorne,

—

356 F. 2d 740 (4th Cir. 1966), cert. denied 384 U.S. 908.

86S. Ct. 1344, 16 L. Ed. 2d 360.

“But when both the use of the interstate facility and the

subsequent act are as minimal and incidental as in this

case, we do not believe a federal crime has been com-

mitted.”

See also footnote 12 in Altobella:

“The government also suggests that the application of

the statute is warranted by the fact that appellants’ victim

was from out of state. That theory, however, is not set

forth in the indictment and there was no evidence of a plan

to lure out-of-state victims to Chicago, or even that the

conspirators intended to select an out-of-town victim. More-

over, the application of the statute on a comparable theory

has just been squarely rejected by the Supreme Court.

Rewis v. United States, 401 U.S. 808, 91 S. Ct. 1056, 28

L. Ed. 2d 493 (decided April 5, 1971).”

The Travel Act concerns itself with unlawful activity. The

intent of Congress is well summarized in 1961 U. S. Code, Con-

gressional and Administrative News, p. 2666:

“The use of the term ‘business enterprise’ requires that

the activity be a continuous course of conduct. Thus, indi-

vidual or isolated violations would not come within the

scope of this bill since they do not constitute a continuous

course of conduct so as to be a business enterprise.”

This Congressional intent is reflected in the per curiam opinion

in United States v. McCormick, 442 F. 2d 316, 318 (7th Cir.

1971):

“Here too the activities engaged in by defendant were

essentially local. The role played by the interstate mail-

— =

ings was ‘a matter of happenstance’ and ‘minimal and in-

cidental’ to the operation of the illegal lottery. As in

Rewis and Altobella, the interstate activities relied upon

by the Government were the acts of others and were not

actively sought or made a part of the illegal activity of

the accused.” (Emphasis supplied. )

See also United States v. Johns, 444 F. 2d 58 (Sth Cir. 1971);

United States v. Donaway, 447 F. 2d 940 (9th Cir. 1971);

United States v. Cantor, 469 F. 2d 435 (3rd Cir. 1972), and

United States v. Presley, 478 F. 2d 163 (6th Cir. 1973).

Finally, in view of the lack of evidence of any knowledge

by petitioners that Amato or Colgan were receiving interstate

calls, the convictions must be reversed. The opinion below

expressly refused to follow United States v. Barnes, 383 F. 2d

287 (6th Cir. 1967), cert. den. 389 U.S. 1040 (1968), and

United States v. Honeycutt, 311 F. 2d 660 (4th Cir. 1962).

In Barnes, the two defendants worked in a gambling estab-

lishment in violation of local law, but there was no evidence

that they had anything to do with or any knowledge of a third

defendant's out-of-state purchases of supplies, just as petition-

ers here had nothing to do with or any knowledge of the re-

ceipt of the out-of-state information by Amato or Colgan.

There is a great deal of significant language in the Barnes

opinion in the section on discussion of the evidence (pages

290-293 of 383 F. 2d), and we will not lengthen this petition

by quoting therefrom. But if the names of Villano and Smal-

done are substituted for Carney and Washer, and if the names

of Amato and Colgan are substituted for Barnes, and if the

act of receiving bets from interstate telephones is substituted

for purchasing gambling paraphernalia from out-of-state

sources or cashing out-of-state checks, there is a ready-made

opinion for the reversal of the convictions of both petitioners

herein.

— wo

In attempting to distinguish Barnes and Honeycutt, the opin-

ion seems to find sufficient interstate activity because of specu-

lation that “interstate calls were not unlikely.” There was no

proof here that anyone had knowledge of any interstate ac-

tivity, and in fact the testimony of the prosecution witnesses

Amato and Colgan was to the opposite (R V 152-153, 175-

176).

The opinion herein also approved the following instruction

(R VII 456-457):

“I further instruct you that with respect to each count

of the indictment, if you find that a particular defendant

did in fact cause to be used or aid and abet the using

of a facility in interstate commerce, it does not matter

under the law tiniai he may not have known that his ac-

tions involved the use of 2. facility in interstate commerce

or that his actions caused or aided and abetted the use

of such facility. If that person performed an act with

a specific intent to further a business enterprise involving

gambling, which enterprise was in violation of the laws

of the State of Colorado, he further ran the risk that his

actions caused or aided and abetted the use of such fa-

cility in interstate commerce.”

This instruction was patterned after the “risk” instruction ap-

proved in United States v. Smaldone, 485 F. 2d 1333, 1348

(10th Cir. 1973), cert. den. 416 U.S. 936 (1974). But that

case involved 18 U.S.C. § 1955, which, although relating to

local gambling, is a distinct and separate statute from § 1952.

Section 1955 has no relationship to interstate activity except

that because of the size of the local gambling operation it may

become a federal offense. This is quite different from § 1952

which requires a separate affirmative element for federal juris-

diction such as travel or use of an interstate facility. Although

it may be proper in a § 1955 case to instruct that a defendant

runs the risk that the size of the local operation in and of itself

= =

brings it within the federal jurisdiction, it should not follow

that participation in a local gambling enterprise contemplates

that someone else will take affirmative interstate action to in-

voke federal jurisdiction.

The giving of the instruction was prejudicial because there was

no evidence that either petitioner knew that interstate facilities

were being used. Neither Amato nor Colgan testified chat they

knew of interstate calls, and Colgan in fact testified that he made

no long-distance calls excepi to his mother (R V 172). He

was not aware of any calls coming from Mr. Ferris from Ne-

braska (R V 172-173), and he testified that he assumed all the

calls were local and he had no way of knowing that they were

long-distance (R V 175-176). It would seem from his testimony

that his instructions were not to take any calls from out-of-state

(R V 179).

The instruction was erroneous in the light of Rewis. Although

the Florida residents there did not cross the state line, bettors

came from Georgia to participate in the illegal Florida lottery.

This Court decided that even though there was actually travel

in interstate commerce by the Georgia residents, the Florida

operators of the lottery did not violate the Travel Act. If the

instruction in the instant case were a proper statement of the law,

then this Court should have held that the Florida operators “ran

the risk” that persons would travel from Georgia to Florida to

bet with the lottery. But this Court rejected the ruling of the

Court of Appeals upholding the Florida operators’ convictions

on the grounds that they were responsible for the interstate travel

of their customers. In this respect, “responsible” would be simi-

lar to “running the risk”. This Court also rejected reasonable-

foreseeability or active-encouragement tests, both of which would

impose a greater prosecutorial burden than the running-the-risk

test.

Based upon the Rewis case, we believe that the convictions

must be reversed for error in giving this instruction.

— a

Because of the conflict of the opinion of the Court of Appeals

with the decision of this Court in Rewis v. United States* and

because of the conflict with numerous decisions of other Cir-

cuits, we respectfully suggest that certiorari should be granted

as to this Question.

II

Illegal Electronic Surveillance

At the pre-trial hearing, Sgt. Mulnix of the Denver Police

Department testified that he had supervised the monitoring of

telephone conversations which resulted in recordings of each

petitioner by locs.! authorities (R II 111). Although he had no

recollection of turning the transcripts over to federal agents

(R Il 116), he did acknowledge that he read all the transcripts,

discussed petitioners with the federal agents in charge of this

investigation, and told the agents that there were wiretaps (R II

116-117). One series of wiretaps took place in February, 1971,

during the indictment period herein, and at a time when the

federal investigation of petitioners began. Although Sgt. Mulnix

could not recall at the hearing any documents that he had turned

over to the FBI,** Agent Malone acknowledged that documents

were transmitted, including a written summary of the local cases.

(See Defendants’ Exh. G, R III 137).

Agent Malone, the case agent here, frequently received evi-

dence of bookmaking activities of these petitionrs from the local

authorities. He acknowledged that he read the entire summary

of the local cases, including references to wiretapping, after the

investigation of petitioners had started in his office and the finger

* The conflict with Rewis is so clear that summary per curiam

reversal would be appropriate.

_ ** It seems that he purposely did not review the file or documents

in order to be vague in his testimony.

=

of suspicion had pointed at petitioners (R II 138-140, 160).

He discussed the matter with Sgt. Mulnix, who he assumed had

listened to the tape recordings or had seen the transcripts (R III

140). He also received information concerning state wiretaps

in 1972. (See Defendants’ Exh. H, R III 173).

Aithough Agents Malone and Bush each testified that the in-

formation for the federal charge against petitioners did not come

from wiretaps but from sources in Nebraska, it cannot be denied

that they had information concerning the existence and contents

of wiretaps. They could not put out of their minds all informe

tion received from the local authorities emanating from the

wiretaps. Under these circumstances, we believe the evidence

of taint was shown and that the prosecution failed to meet its

burden to negate the taint.

At the hearing, petitioners requested an opportunity to ex-

amine the airtels connected with this case so as to trace all of

the sources and transmittals of information; they were produced

for in camera inspection and determination of relevancy by the

Court, but defense counsel was denied access (R III 145). Later

the airtels were furnished to the Court (R III 165-166), who

examined then (while other proceedings continued). The Court

decided they were not relevant, but preserved them for appellate

review (R III 237). Neither petitioners nor their counsel have

ever seen them.

We believe it would be appropriate at this point to clarify what

issues are and are not involved were. There is no issue as to

whether petitioners were subjected to surveillance, bcause that

has been admitted. There is no issue as to revealing the contents

of the wiretaps, because petitioners have received copies of the

transcripts. There is no issue as to the legality of the wiretaps,

because their illegality has been admitted (R II 120). The basic

issues presented by this appeal are whether the proceedings were

tainted by the illegal surveillance and whether petitioners were

entitled to inspect the airtels and other documents in connection

on 99 om

with the taint hearing. (A ‘nird issue as to illegal surveillance in

1964 is also discussed herein. )

Under Alderman v. United States, 394 U.S. 165 (1969), the

action of the District Court in denying access to the airtels was

erroneous. There the government argued that the records of

wiretaps need only be submitted to the trial court for a deter-

mination as to whether they are arguably relevant. This Court

rejected the argument, holding that only the defense can make

that determination, for “the task is too complex, and the margin

for error too great, to rely wholly on the in camera judgment of

the trial court to identify those records which might have con-

tributed to the Government's case.” (394 U.S. at 182).

Alderman went on to say that the government has the uiti-

mate burden of persuasion to show that the evidence is un-

tainted, but that the defendant must go forward with specific

evidence demonstrating taint. Here the taint was demonstrated

by the testimony that the FBI case agent knew of the existence

of the wiretaps and received reports on them from the local

authorities. The mere assertion by the government that their

case was not infected and the uncorroborated statement that

they had an independent source, without a probing examination

of the independent source, is contrary to Alderman, where it

is said (l.c. 183-184):

“With this task ahead of them, and if the hearings are to

be more than a formality and petitioners not left entirely

to reliance on government testimony, there should be

turned over to them the records of those overheard con-

versations which the Government was not entitled to use

in building its case against them. .

“Adversary proceedings will not magically eliminate all

error, but they will substantially reduce its incidence by

guarding against the possibility that the trial judge, through

lack of time or unfamiliarity with the information con-

tained in and suggested by the materials, will be unable

to provide the scrutiny which the Fourth Amendment ex-

clusionary rule demands.”

We believe that the in camera examination of the airtels by

the Court was not satisfactory. The defense should have been

permitted to examine them and to proceed with the evidence

to show where the case was tainted.* The Alderman case

should not be limited just to a revelation of the recordings them-

selves, but the rationale of Alderman should be applied equally

to the fruits of the recordings. Only the defense could ade-

quately probe the poison that developed from the recordings

to affect the further investigation by agents armed with the

fruits of the poisonous tree. See also Hoffa v. United States,

387 U.S. 231 (1967), and Kolod v. United States, 390 U.S.

136 (1968). Compare Kastigar v. United States, 406 U.S. 441,

459-462 (1972).

The government here failed in its ultimate burden of show-

ing freedom from taint because its only evidence was the

uncorroborated statement by Agent Malone that he had an

independent source from a deceased Nebraska agent (R III

132) and from an unidentified informant (R III 178-180).

(Of course, petitioners had ample evidence demonstrating taint

through the passage of information from the Denver police of-

licer who supervised the illegal surveillance to the FBI case

agent.) The government should have been required to produce

concrete evidence in court, subject to cross-examination and

the penalties of perjury—not just an assumption or opinion on

the part of the agent—-which would meet the government's bur-

den of persuasion.

* In United States v. Huss, 482 F. 2d 38, 47 (2nd Cir. 1973),

the Court stated: “To compel a party who objects to the use of evi-

dence obtained as a result of unlawful wiretapping to go forward

with a showing of taint, Alderman v. United States, supra, 394 U.S.

at 183, 89 S.Ct. 961, and then to withhold from him the means or

tools to meet that burden, is to create an absurdity in the law.”

—_ "a

In United States v. Huss, 482 F. 2d 38, 48-50 (2nd Cir.

1973), the Court was compelled “to strictly scrutinize the gov-

ernment’s claim of independent source” and, in holding that

the mere statement that they had an independent source was

not sufficient, said:

“The teaching of the Supreme Court in Alderman v.

United States, supra, cannot be avoided. We are instructed

that when illegal electronic surveillance has come to

light it is the adversary system, not representations by the

government and not in camera decisions by the court,

which must be relied upon to determine whether over-

heard matter is ‘relevant’ to the taint hearing.” (Emphasis

supplied. )

We believe that the Court of Appeals opinion herein is in

conflict with this Court’s opinion in Alderman and the Second

Circuit’s opinion in Huss. Petitioners’ contention has been re-

jected because thev could not disprove the government’s denial

of taint, but petitioners were deprived of access to the means

by which they could have explored the government's denial.

We believe that the Court of Appeals has crroneously limited

Alderman by suggesting that the only documents that are re-

quired to be furnished to the defense are the transcripts of

monitored conversations and not airtels or other records rele-

vant to the taint issue.

4 * * * * * .

Another issue of illegal electronic surveillance appeared on

the day trial commenced, when the government for the first

time revealed that there had been illegal electronic activity in

1964. In February a pen register was followed by monitoring

and recording of calls of Mr. Villano (R V 5-7). In December,

1964, there was a surreptitious recording of a conversation with

Mr. Villano (RV 7-8).

It was the position of the government (R V 8) that these

surveillances were not required to be disclosed because of 18

U.S.C. § 3504, which has established an arbitrary five-year

statute of limitations for determining taint. Petitioners believe

(R V 6) that no statute of limitations can circumvent taint

when it does exist and that constitutional rights cannot arbi-

trarily be denied by the mere passage of time. .

Furthermore, here Agent Malone testified that he talked to

Sgt Mulnix about petitioners since 1968 (R III 133), that he

knew that Mr. Villano “was involved in gambling activities

for years” (R III 141-142), and that he had gotten in-

formation that both petitioners were involved in gambling in

the early sixties which he corroborated and substantiated in the

early part of 1968 (R III 142). It was this information which

he used as background for the investigation of the instant case.

Even if the statute of limitations of § 3504 is valid, the 1964

information was no doubt used by the agent all during the limita-

tion period to infect and taint the investigation which he con-

ducted for the alleged offenses in 1970 and 1971. Such use of

the information should toll the statute of limitations.

We submit that the purpose of § 3504, if constitutional, was

to avoid hearings on the question of the taint of illegal electronic

surveillance where a defendant was surveilied many years pre-

viously on completely unrelated matters. But where the persons

und matters subject to surveillance are the same as those under

investigation and where the information is part of the back-

ground being utilized by the investigating agent, then no arbi-

trary statute of limitations can deprive a defendant of his

Fourth Amendment rights.

This case presents important issues regarding electronic sur-

veillance which should be decided by this Court. Whether it

is to examine the limitations on the applicability of Alderman

or to review the conflicts with other Circuits which have decided

_—

cases similar to Huss or to determine the constitutionality and

applicability of 18 U.S.C. § 3504, we respectfully suggest that

certiorari should be granted as to this Question.

ill

Prejudicial Publicity*

The name “Smaldone” has engendered a tremendous amount

of publicity over the years in the Denver area; the name “Vil-

lano” is also well known. Therefore petitioners, believing that

they could not obtain an impartial jury in the Denver area, re-

quested a transfer of the cause to another area (R IX 9), but

the motion was overruled (R III 240). The existence and effect

of such publicity was proved at the pre-trial hearing; its preju-

dicial impact was demonstrated when the jury was impaneled.

Pre-trial publicity which affects, or which may possibly have

an effect upon, the fairness of a tria! constitutes a deprivation

of due process of law. Sheppard v. Maxwell, 384 U.S 333

(1966); Estes v. Texas, 381 U.S. 532 (1965), Rideau v.

Louisiana, 373 U.S. 723 (1963), Irvin v. Dowd, 366 U.S. 717

(1961); Chapman v. California, 386 U.S. 18, 43-44 (1967)

(Stewart, J., concurring). Compare Murphy v. Florida, 421

U.S. 794 (1975). Whenever it appears that prejudicial matter

has been publicized in the news media, it is presumed that it has

come to the attention of the jury, and that the defendant has

been prejudiced; the trial cannot proceed unless the Court is

Satisfied to the contrary. Mares v. United States, 383 F. 2d

805, 808-809 (10th Cir. 1967), Pamplin v. Mason, 364 F. 2d 1

(Sth Cir. 1966), Silverthorne v. United States, 400 F. 2d 627,

_ * This issue was presented for review to the Court of Appeals, but

in the last paragraph of the opinion, the denial of a change of venue

was rejected, without discussion, as a point of “no substance”. In

so deciding, we believe the Court of Appeals failed to follow nu-

merous decisions of this Court.

cae

—_—

644 (9th Cir. 1968). Cf. Baker v. Hudspeth, 129 F. 2d 779,

781-782 (10th Cir. 1942).

The extent of the prejudicial publicity here was demonstrated

by the evidence presented at the pre-trial hearing on March 29,

1974 (RII). Various representatives of the news media testified

to substantial coverage of the Smaldone family and Mr. Villano,

over many years, which was heightened within the year before

trial by a shooting of Mrs. Smaldone and the bombing of her

house just a few days before indictment.

The effect of this publicity was shown initially by the report

of a public opinion survey company—Defendants’ Exhibit C

introduced at the March 29 hearing. From the results of that

survey, it is obvious that the Smaldone and Villano names are

almost exclusively associated with crime, gambling and violence.

Although the results of the survey were not as severe as those

of a prior survey (Defendants’ Exhibit E), it is obvious that

substantial prejudicial name association still existed shortly be-

fore trial. Thus, petitioners entered the courtroom, as suggested

by an offer of proof (R II 94), with a large percentage of pros-

pective jurors already prejudiced against them.

That the results of the survey were accurate was proved by the

voir dire examination of jurors at the commencement of the trial.

85 prospective jurors were called (R V 19-25); two were im-

mediately excused for personal reasons (R V 27, 29); of the 83

remaining, 17 had heard or read about the case (R V 32-40),

and 31 more heard or read something concerning petitioners

(R V 41-46). Thus, 48 out of 81,* or 59%, acknowledged

having some prior information about the case or petitioners.

The Court excused all of these persons for cause (R V 46-48).

That a sufficiently large number of persons was called so

that some did not acknowledge an acquaintance with petitioners

* Two prospective jurors seem to have gotten lost somewhere,

because only 33 remained for the final panel (R V 48, 56).

=

or the case does not avoid the impact of this issue. Among thou-

sands of prospective jurors, doubtless some will always be found

who would deny any knowledge of the case, and a transfer for

prejudicial pre-trial publicity would never be necessary. But is

it proper to have a jury consisting only of those who never have

been exposed to the general news media? Such a jury would be

less of a cross-section of the community and more of a singular

class of persons quarantined from the press. Here it would have

been much simpler for the Court to have transferred the cause

to another forum where the community would have been less

exposed to the harmful publicity and where a true cross-section

of that community could have been available. As said in Rideau

v. Louisiana, supra, 373 U.S. at 727, “due process of law in

this case required a trial before a jury drawn from a commu-

nity of people who had not” been exposed to the publicity.*

Cf. Dennis v. United States, 302 F. 2d 5, 7-8 (10th Cir. 1962).

Had a transfer of this cause been granted, there would have

been no incidents such as the statement by one prospective juror

that he had heard the names and about “Mrs. Smaldone, the

bombing of her house” (R V 41), and the sinister implications

of another answer that “I have heard the name and also other

activities of the family” (R V 44). Both of these incidents

were called to the attention of the Court with requests for a

mistrial and discharge of the entire panel, but the requests were

denied (R V 41, 47). At the very least, the Court could have

avoided these problems by granting petitioners’ request for a

separate voir dire of each juror (R IX 62-63, R V 4). See

* It is interesting that there were acquittals in two prior cases

of members of the Smaldone family when the trial was transferred,

but in two others and now in the instant case in which transfers

were niu granted, convictions resulted (R II 105-106). We are not

Suggesting that a defendant is entitled to a change just because he

stands a better chance of an acquittal elsewhere, but, on the other

hand, he should not be denied a change for that reason. All we re-

quest is that a cross-section of prospective jurors be available who

have not been subjected to the influences of prejudicial publicity.

—

Mares v. United States, 383 F. 2d 805, 809 (10th Cir. 1967),

United States v. Colabella, 448 F. 2d 1299, 1303-1304 (2nd

Cir. 1971 ), and American Bar Association, Standards Relating

to Fair Trial and Free Press, Section 3.4(a). Compare United

States v. Bear Runner, 502 F. 2d 908 (8th Cir. 1974).

Based upon the pre-trial evidence and the facts developed

during the impaneling of the jury, no jury was or could be ob-

tained in the Denver area which would be free of prejudicial

publicity. Because of the denial of a fair trial to petitioners and

because of the conflicts with decisions of this Court, we re-

spectfully suggest that certiorari should be granted as to this

Question.

IV

Double Jeopardy (Prior State Charges)

Evidence at the pre-trial hearing on April 4, 1974 (R Ill

216, R 1X 42-55) showed that each petitioner was charged, con-

victed and punished in Colorado state courts for gambling vio-

lations during the same continuous period of time involved in

this federal indictment.* We believe that a second federal trial

is barred by the Fifth Amendment prohibition against any per-

son being “subject for the same offence to be twice put in

jeopardy of life or limb”.

Decisions of this Court seem to reject the dual prosecution

created by this case. In Waller v. F. rida, 397 U.S. 387, 396

(1970), there is an apparent withdrawal from earlier cases

which, under the dual sovereignty doctrine, permitted successive

* The state convictions demonstrate that there was no need for

federal prosecution because obviously state authorities were not

hampered in their prosecution by any interstate activities. Thus this

case is not really within the intent of the Travel Act which, accord-

ing to its legislative history, was aimed at organized criminal ac-

tivity not subject to state prosecution because of the interstate net-

work. See Rewis v. United States, 401 U.S. 808 (1971).

prosecutions by federal and state governments. This Court

held that the defendant “could not lawfully be tried both by the

municipal government and by the State of Florida. In this

context a ‘dual sovereignty’ theory is an anachronism, and the

second trial constituted double jeopardy violative of the Fifth

and Fourteenth Amendments to the United States Constitution.”

The companion case of Ashe v. Swenson, 397 U.S. 436 (1970),

lends further support to our position against division of prose-

cutions for the same alleged offense. See the concurrence of Mr.

Justice Black (397 U.S. at 447):

“On several occasions I have stated my view that the

Double Jeopardy Clause bars a State or the Federal Gov-

ernment or the two together from subjecting a defendant to

the hazards of trial and possible conviction more than once

for the same alleged offense. (Cases cited.)” (Emphasis

supplied. )

Compare O'Callahan v. Parker, 395 U.S. 258 (1969), where a

court-martial was denied concurrent jurisdiction with a state

court to try a soldier for a civilian-type offense.

In Pennsylvania v. Miils, 286 A. 2d 638, 641 (Pa. 1971), the

Supreme Court of Pennsylvania discusses the dual sovereignty

concept and the double jeopardy clause:

“It appears to us that the only penological justification

for permitting a second prosecution and punishment for

the same offense even where different sovereigns are in-

volved is out and out punishment, and we certainly hope

that at this late date in the history of the development of

the penal system of this Commonwealth and the Nation,

that incarceration for a criminal act stands on stronger

footing than—an eye for an eye.”

The basic interest of the federal government under the Travel

Act is to be able to stifle those illegal enterprises which, because

of interstate activity and non-residency problems, are immune

am 3) a=

from local prosecution. The reason for such rule certainly does

not exist in the instant case, because petitioners were not only

subject to, but were in fact prosecuted under, state law. Com-

pare United States v. Altobella, 442 F. 310, 316 (7th Cir.

1971).

We believe that the opinion below has erroneously restricted

this Court's opinion in Waller to cases in a state court and a

municipal court. Because of the need to clarify the law in this

important double jeopardy issue, we respectfully suggest that

certiorari should be granted as to this Question.

Vv

Telephone Voice Identification*

On three separate occasions, the District Court permitted

key prosecution witnesses to testify that they had telephone con-

versations with a defendant without adequate foundation being

laid as to the ability of the witness to identify the voice:

1. Fud Ferris claimed that after his betting ceased he had

a telephone conversation with petitioner Villano in which Ferris

told him that the FBI had contacted him and Villano told him

not to worry and that the FBI did not know anything (R V 110-

112). But there was nothing in the testimony of Ferris to show

that he had any prior phone conversations with Villano or that

there was any basis for him to know that it was the telephone

voice of Villano. In fact, he was unable io identify Villano in

court (R V 104).

2. Amato testified that he was 99% sure that the woman

to whom he relayed bets was Mrs. Smaldone (R V 146-147),

_* This issue also was rejected by the Court of Appeals, without

discussion, as being of “no substance”. It is an important issue, for

— evidence there was absolutely no case against Mrs.

m

om 92 ce

but he acknowledged that on five occasions he testified before

the grand jury that he “thought” or “assumed” it was she (R V

254-257). His identification was based on two personal contacts

with Mrs. Smaldone. The first occasion was on Christmas Eve

when he was drinking heavily and, according to his words was

“paralyzed and drunk” (R VI 259-260). He admitted that he

was unable to drive and that “things were a little shaky” (R VI

260). Because of his condition and the fact that there was ob-

viously no conversation from which he could become familiar

with her voice, his identification could not be based on this first

meeting. The second contact took piace after he had been

arrested. He visited the Smaldone house for about five minutes

and, aside from greeting Mrs. Smaldone, he had no conversation

with her and stayed in another room while she talked to her

husband (R VI 261-263). He then attempted to bolster his

testimony by saying that ‘hey discussed his earlier arrests (R VI

264-265), but his testimony was vague and if the discussion

did take place, it was obvious that Mrs. Smaldone was unaware

of the prior arrests—she asked him what he had been arrested

for (R VI 264). Had she been the relay person, she certainly

would have known of the arrests. On redirect examination, it

was suggested to him that there may have been more contacts

with Mrs. Smaldone (R VI 265), but his grand jury testimony

corroborated that he had only two personal contacts with her

(R VI 272). Thus there was no basis for his identification of

Mrs. Smaldone’s voice.

3. Colgan testified that he relayed bets to a woman at a tele-

phone number (R VI 154-155) which the evidence showed was

listed in the name of Mrs. Smaldone’s husband for their daughter

(R VI 282, Pl. Exh. 4). He testified that he called the woman

Pauline, but that he had never met petitioner Pauline Smaldone

before trial (R V 161, 177). And he acknowledged that every-

one in the gambling operation, including himself, used fictitious

names and he assumed that the name Pauline was fictitious (R

V 167-170). He obviously had no foundation from which he

ee eee EE eos

—_— _

could testify that the party with whom he spoke was petitioner

Smaldone.

Under the applicable law, the testimony did not establish a

proper foundation for the reception of the evidence of these

phone conversations. None of the witnesses was qualified to

express an opinion as to the identity of the persons on the tele-

phone.

The question of the admissibility of opinions as to identity

of telephone callers has often been of concern to courts, but in

every case where such testimony is accepted, there has been

substantially more evidence than here of the foundation for the

witne’ :s to identify the persons on the other end of the tele-

phone. No case has permitted identification on such weak cre-

dentials as these witnesses possessed. Compare Federal Rules

of Evidence 901{b)5 and 901(b)(6).

This is not a case where the witness had adequate opportunity

to become familiar with the voice before the call [cf. United

States v. Turner, 423 F. 2d 481, 484 (7th Cir. 1970), cert. den.

398 U.S. 967 (1970), and National Labor Relations Board v.

Carpet, Linoleum and Resilient Tile Layers Local Union No.

419, 213 F. 2d 9 (10th Cir. 1954)], or where the witness ac-

quired his knowledge by adequate contact after the call [cf.

United States v. Cox, 449 F. 2d 679, 690 (10th Cir. 1971),

cert. den. 406 U.S. 934 (1972)], or where the defendant per-

sonally acknowledged the call afterwards [cf. United States v.

Moia, 251 F. 2d 255, 257 (2nd Cir. 1958)], or where the

person identified was the only one having knowledge of the

subject matter of the conversation [cf. Haas v. United States,

344 F. 2d 56, 63 (8th Cir. 1965)], or where there was other

circumstantial evidence pointing to the identity of the caller

[cf. Cwach v. United States, 212 F. 2d 520, 525 (8th Cir. 1954),

Spindler v. United States, 366 F. 2d 678, 681 (9th Cir. 1964),

cert. den. sub nom. Richards v. United States, 380 U.S. 909

(1965), and Kansas Electric Supply Company, Inc. v. Dun &

»

_~

Bradstreet, Inc., 448 F. 2d 647, 650-651 (10th Cir. 1971),

cert. den. 405 U.S. 1026 (1972)}.

Based upon all of the authorities, we believe it is clear that

none of the witnesses in the instant case was properly qualified

to express the opinion that the person with whom he was speak-

ing was a defendant. There was no foundation laid for such

evidence, and it should not have been admitteu. By the admis-

sion of such evidence, without which it is unlikely that there

would have been any convictions, and certainly not against Mrs.

Smaldone, the courts below have totally disregarded and ig-

nored numerous decisions of other circuits which have estab-

lished guidelines for the admissibility of telephone conversations.

Because of this conflict with other circuits, we respectfully

suggest that certiorari should be granted as to this Question.

CONCLUSION

For these reasons, it is respectfully submitted that this peti-

tion for a writ of certiorari should be granted.

Respectfully submitted,

IRL B. BARIS

721 Olive Street

St. Louis, Missouri 63101

and

JOSEPH SAINT-VELTRI

DAVIES and SAINT-VELTRI

538 Majestic Building

Denver, Colorado 80202

Attorneys for Petitioners

APPENDIX

— * po

APPENDIX A

OPINION OF COURT OF APPEALS.

DATED JANUARY 8, 1976

Publish

United States Court of Appeals, Tenth Circuit

Nos. 74-1463 and 74-1464

United States of America,

Pome -Agpenen, Appeal from the United

States District Court for

the District of Colorado

Paul Clyde Villano and Pzuline (D.C. No. 74-CR-25)

Smaldone,

Defendants-Appellants. J

W. Allen Spurgeon, Assistant United States Attorney, Denver,

Colorado (James L. Treece, United States Attorney, and

John W. Madden, III, Special Assistant United States

Attorney, Denver, Colorado, on the brief) for Plaintiff-

Appellee

irl B. Baris of Newmark and Baris, St. Louis, Missouri (Joseph

Saint-Veltri of Davies and Saint-Veltri, Denver, Colorado,

on the brief) for Defendants-Appellants

Before Seth, Holloway and Barrett, Circuit Judges

Holloway, Circuit Judge

Defendants Paul Clyde Villano and Pauline Smaldone were

convicted on jury verdicts under a three-count indictment, each

— =

count covering one of three time periods, for using, causing to

be used, or aiding and abetting the use of a communication

facility in interstate commerce, namely the interstate telephone,

in violation of 18 USCA §§ 1952 and 2. On appeal defend-

ants raise questions concerning the sufficiency of the evidence,

jury instructions, telephone voice identification, division of the

charges into multiple counts, double jeopardy, adequacy of the

Alderman taint hearing, venue and jury selection, the consti-

tutionality of § 1952 (the Travel Act), pre-indictment delay,

and denial of severence. We conclude that the convictions should

stand, and affirm.

The facts are dealt with in discussing the appellate conten-

tions.

I

Sufficiency of the Evidence

a. The unlawful activity and use of interstate facilities

The three counts in the indictment were identical except for

the time periods involved.' Count I encompassed the period of

' Each count in the indictment alleged in pertinent part that:

within the State and District of Colorado, Paul Clyde Villano

and Pauline Smaldone did use, cause to be used, and aid and

abet the using of a communication facility in interstate com-

merce, that is, the interstate telephone, between Nebraska and

Colorado, with intent to promote, manage, establish, carry on

and facilitate the promotion, management, establishment and

carrying on of an unlawful activity, said unlawful activity being

a business enterprise involving gambling in violation of Chap-

ter 40, Article 10, Sections 7, 8 and 9, Colorado Revised Stat-

utes 1963, as then amended, and thereafter, Paul Clyde Villano

and Pauline Smaldone did perform, cause to be performed, and

aid and abet the performance of acts to promote, manage, es-

tablish, carry on and facilitate the promotion, management, es-

tablishment and carrying on of said unlawful activity, all of

the foregoing in violation of Title 18, United States Code, Sec-

tions 1952 and 2.

—

November and December, 1970: count II covered the month

of January, 1971; and count III the month of February, 1971.

Since we are reviewing convictions on guilty verdicts we

must view the proof in the light most favorable to the Govern-

ment. United States v. Pauldino, 443 F.2d 1108, 1110 (10th

Cir.), cert. denied, 404 U.S. 882. So viewed there was proof

tending to show that Villano and Smaldone were in the book-

making business during the period from November 1, 1970,

through February 28, 1971. Villano handled substantial betting

on football and basketball games with Denver residents who

testified that he personally handled collections and payoffs (R

VI 330, 332-34; 347-48, 350-54).

From November, 1970, through February, 1971, Frank

Amato worked as a telephone operator for a Denver book-

maker taking bets and providing line information. Amato

worked five or six days a week in this position, serviced 20 to

30 customers by code number, and handled between $5,000

and $7,000 per day. Upon receipt of the bets he relayed them

to a woman whose voice he recognized as defendant Pauline

Smaldone’s.* Amato specifically recalled receiving calls from a

bettor who identified himself by the code number X-15 (R V

142-45; 147; 150-51). In January, 1971, Amato was arrested

by State authorities for gambling violations. Henry Veto, a

professional bondsman, testified that after Amato's arrest he

provided Amato’s bond at the request and expense of Villano

(R V 148; R VI 302-03).

During the indictment period Richard Colgan was employed

by Villano as a telephone operator. He was paid by Villano in

cash on a weekly basis. Colgan testified that he serviced ap-

proximately 50 customers and received an average of $25,000

to $35,000 in bets per week. After receiving bets Colgan re-

- Amato testified that the purpose of relaying bets was so that

in case of a raid, a phone man would not be caught with betting

records (R V 144). Amato also stated that at times he relayed bets

to a second woman for about two or three weeks, but he said he

relayed most of his bets to Smaldone (R V 145-46).

—_ - we

layed them to a woman known to him as Pauline who received

this information at telephone number 237-9254 in Denver (R V

154-55; 160-61). The Government's proof showed this num-

ber to be listed to C. M. Smaldone for Claudia Smaldone, 2997

Pearson Way, Denver, Colorado (PI. Ex. 4). The owner of this

residence during the period encompassed by the indictment was

defendant Pauline Smaldone (Pl. Ex. 5, 6, 7). If the sports

schedules required by Colgan were ever late he would call

Pauline’s number and they would be sent to him. If a bettor

desired to exceed the $2,000 limit on any single bet, he was

required to call Pauline and then defendant Villano would call

him to either grant or deny him permission to accept the bet

(R V 161-62).

The evidence of interstate telephone calls came from Fud

Ferris, Jr., a resident of Valentine, Nebraska, who owned restau-

rants in Valentine and North Platte. He testified that during

the fall of 1970 and the spring of 1971, he placed bets with a

Denver bookmaker by use of telephone facilities located in the

two restaurants, his residence, and the residence of his sister-

in-law in North Platte. Ferris said he had three phone num-

bers that he would call in Denver and that he used code number

X-15 when placing all of his bets. Ferris stated, however, that

he had never heard of Amato or Colgan. He testified that

during the indictment period his highest betting might have been

$5,000 in a week, but that there were some weeks he did not

place any bets.

Ferris stated he traveled to Denver where he was paid his

winnings by a man known to him as Paulie (R V 104, 108).*

However, in court Ferris was unable to identify defendant Paul

Villano as the person who paid him (R V 104). The time and

place of payment would be previously arranged during his in-

terstate telephone calls to Denver when he obtained line informa-

tion and placed bets (R V 100-105). At the conclusion of

* During the trial, several witnesses used the nickname “Paulie”

when referring to defendant Villano (R V 179,186,192; R VI 365).

—_T a

Ferris’s betting through the three Denver telephone numbers he

owed $4,000 which he did not pay (R V 107-108).

Several of the telephone calls made by Ferris were corro-

borated by telephone company records. The records, together

with the testimony of Ferris, Amato and Colgan, supported an

inference that Ferris made numerous interstate telephone calls

to numbers operated by Amato and Colgan during the indict-

ment period.*

* The records showed calls as follows from the Nebraska phones

used by Ferris:

Count | Nov.-Dec., 1970 3 calls to Amato phones

Count Il January, 1971 7 calls to Amato phones

Count III February, 1971 6 calls to Colgan phones

Amato testified that he had worked three phone locations during

the indictment period: 244-9221 (West Fourth Ave.), 427-2667

(Briarwood Apts.), and 244-9129 (Marion St.) (R VI 268-69).

Colgan stated that he had worked one phone location during the

same period: 266-9781 (Pearl St.) (R V 157, 195; Pl. Ex. 3). The

telephone number at Ferris’ North Platte restaurant was 532-5340

(R V 101, 222). Telephone records of this number established the

following calls (Pl. Ex. 1):

Number

Date Called Location

November 25, 1970 244-9221 (Amato-West Fourth Ave. )

December 21 427-2667 (Amato-Briarwood Apts.)

December 21 427-2667 (Amato-Briarwood Apts.)

January 4, 1971 244-9129 (Amato-Marion St.)

January 6 “ 83

January 7 i

January 7 4 He

January 7 . -

January }!1 ¥, s

January |] os ‘6

February 2, 1971 266-9781 (Colgan-Pearl St.)

February 2 - *3

February 6 <

February 6 wf v9

February 6 “ i

The telephone number of Ferris’ sister-in-law, in North Platte, Ne-

braska, was 532-2046 (R V 101, 222; Pl. Ex. 3). Phone records

of her telephone showed that Colgan’s Pearl Street number had been

called on February 2, 1971 (Pl. Ex. 2).

—

From the proof we are satisfied the jury could find beyond

a reasonable doubt that Villano and Smaldone caused the use,

or aided and abetted the use, of interstate phone facilities with

the intent to promote and carry on and facilitate the promotion

and carrying on of an unlawful activity—a business enterprise

involving gambling in Colorado—and that they thereafter per-

formed or attempted to perform such acts of promoting and

carrying on or of facilitating the promotion and carrying on of

unlawful gambling. Thus it appears that the proof supports the

convictions for violation of § 1952.

b. Adequacy of the proof in view of the Rewis decision

Defendants’ argument focuses on Rewis v. United States, 401

U.S. 808. They say that the evidence was only of a local

gambling business, patronized sporadically by one non-resident

and that Rewis holds that this does not constitute a federal of-

fense (Joint Brief for Appellants, at 12). Reliance is placed on

Rewis, on United States v. Altobella, 442 F.2d 310 (7th Cir.),

on United States v. McCormick, 442 F.2d 316 (7th Cir.), and

Similar cases.

In Rewis there was a lottery or numbers operation in northern

Florida near the Georgia line. Two defendants were Florida

residents and there was no proof that they crossed state lines in

connection with operation of their lottery. Two other defendants

were Georgia residents who traveled to the Florida location to

place bets. All defendants were found guilty; the Georgia de-

fe.idants’ convictions were reversed by the Fifth Circuit and

those of the Florida defendants were reversed by the Supreme

Court. Reviewing the language of the Travel Act and its legis-

lative history, the Supreme Court pointed out the statute was

aimed primarily at organized crime and specifically at persons

residing in one State while operating illegal activities in another.

It was concluded that Congress did not intend the Act to apply

= =

to criminal activity solely because that activity is at times

patronized by persons from another State. 401 U.S. at 811-12.

We feel that the Rewis opinion does not call for reversal here.

The Travel Act provisions in question read in pertinent part:

§$ 1952. Interstate and foreign travel or transportation in

aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce

or uses any facility in interstate or foreign commerce, in-

cluding the mail, with intent to—

* * e * * * *

(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion, management, estab-

lishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the

acts specified in subparagraphs (1), (2), and (3), shall be

fined not more than $10,000 or imprisoned for not more

than five years, or both.

(b) As used in this section “unlawful activity” means

(1) any business enterprise involving gambling, . . .

From the terms of the statute itself we feel that the evidence

supports the convictions. There was proof to sustain an inference

that the defendants caused or aided and abetted the use by

Colgan and Amato of interstate telephone facilities in furnishing

line information, accepting bets and arranging payoffs with Fer-

ris. True, the calls were placed by Ferris, but the betting trans-

actions depended on more than silence at the other end of the

line.” We feel the proven use of the interstate facility was sub-

* See United States v. Tomeo, 459 F.2d 445, 447 (10th Cir.),

cert. denied, 409 U.S. 914, (decided under a different statute, 18

USCA § 1084(a)); but see United States v. Archer, 486 F.2d 670,

683 (2d Cir.) (mere receipt of a foreign call from a federal under-

cover agent heid insufficient for conviction under the Travel Act).

—

stantial enough to support the convictions, although it was a

small part of the overall gambling enterprise (see note 4, supra).

There were several transactions conducted by use of an inter-

state facility, bringing the case within the prohibitions of §

1952(a).°

We cannot agree that the Court's interpretation of the statute

in Rewis calls for reversal of these convictions. The opinion does

stress that the Act was aimed “at persons who reside in one

State while operating or managing illegal activities located in

another.” 401 U.S. at 811. Nevertheless the reach of the statute

was not limited to such circumstances. Erlenbaugh v. United

States, 409 U.S. 239, 247, n. 21. The controlling observation

in the Rewis case seems to be that the legislative history

“strongly suggests that Congress did not intend that the Travel

Act should apply to criminal activity solely because that activity

is at times patronized by persons from another State.” 401 U.S.

at 812. This point, focusing on the interstate activity by others,

is not dispositive here. For, as pointed out, the defendants situ-

ated their agents where they carried on transactions by using

* See H.R. Rep. No. 966, 87th Cong., Ist Sess. (1961), US.

Code Cong. & Ad. News (1961), p. 2665.

As originally proposed by Attorney General Kennedy, § 1952

(H.R.6572, S.1653) would have covered only travel; the use of the

telephone was to be proscribed by 18 USCA § 1084 (H.R. 7039, S.

1656), which forbids the use of wire communication facilities for

the transmission of a information in interstate commerce

See Hearings on [H.R. 6572, H.R. 7039] Legislation Reiating to

Organized Crime Before Subcom. No. 5 of the House Comm. on

the Judiciary, 87th Cong., ist Sess., ser. 16, at 20, 24-25 (1961);

Hearings on [S. 1653, S. 1656] the Attorney General’s Program to

Curb Organized Crime and Racketeering Before the Senate Comm.

on the Judiciary, 87th Cong., Ist Sess., at 11, 12, 15 (1961).

The Senate Judiciary Committee amended the trave! bill to add

an identical section prohibiting the use of “any facility for trans-

portation in interstate or foreign commerce, including the mail.” See

S.Rep. No. 644, 87th Cong., Ist Sess. (1961). In explaining the

amendment Senator Eastland remarked on the floor:

The committee is of the opinion that the bill should not be

limited to the travel of individuals in interstate commerce. Other

OO eOweEeE aww

=—-

telephones, receiving local and interstate calls. Our examination

of the statute, its legislative history and the Rewis opinion per-

suades us that on this record these convictions should be sus-

tained.

We have considered United States v. Altobello, 442 F.2d

310 (7th Cir.), and United States v. McCormick, 442 F.2d 316

(7th Cir.).* The Altobello opinion reversed a conviction where

the only use of interstate facilities was the cashing of a check

drawn on an out-of-state bank by a blackmail! victim to make a

payoff. The subsequent act was division of the money between

the defendants. The court said that where the use of the inter-

State facility and subsequent act were that minimal and inci-

dental to the scheme, no federal crime was committed. Id. at

315.

In United States v. McCormick, 442 F.2d 316 (7th Cir.), a

conviction was likewise reversed where the defendant, an In-

interstate transportation facilities may be used by organized

crime to carry out unlawful activity. The bill therefore has

been broadened... .

107 Cong. Rec. 13943 (Part 10, 1961).

The conference committee then combined the two sections into

the present form, but extended the scope of the Act in the process.

For reasons that are not clear, all references to “transportation”

in the Act were omitted, except for that which remains in its title.

See H.R.Rep. No. 1161, 87th Cong., Ist Sess., 1, 3 (1961).

While there is some question whether Congress intended “use of

any facility” to apply to anything other than travel or transportation,

courts faced with the question have construed § 1952 to apply to

interstate telephone calls. See United States v. Archer, 486 B 2d

670, 679 n. 10 (2d Cir.), and cases cited therein. We also construe

the language of the Act to cover the interstate use of telephones.

Such interpretation does not violate the maxim that penal statutes

be strictly construed, we feel, since “{ijt is sufficient if the words are

given their fair meaning in accord with the evident intent of Con-

gress.” United States v. Cook, 384 U.S. 257, 262-63.

A See also United States v. Isaacs, 493 F.2d 1124, 1146-49 (7th

Cir.), cert. denied, 417 U.S. 976, and United States v. Archer, 486

F.2d 670 (2d Cir.), which bear some similarity to Altobello and

McCormick as to incidental involvement of interst © facilities.

— A-10 —

diana lottery operater, advertised in a weekly newspaper for

lottery salesmen. Of 15,000 papers distributed, some 200 to

500 were mailed out-of-state. The court said the interstate ac-

tivities relied on by the Government were the acts of others

and were not actively sought or made a part of the defendant's

illegal activity, and that there was no showing the lottery de-

pended on or included interstate operations. Id. at 318.

A plausible argument for reversal can be made on the basis

of the Altobello and McCormick cases: the interstate calls were

only from one man, Ferris, and the business generated by these

interstate calls was not shown to be more than a relatively small

part of the gam ling business handled by Colgan and Amato.

Nevertheless we have some doubt that that court would reverse

these convictions since there was repeated use of interstate com-

munications which produced a substantial volume of gambling

—although a small part of the proven operation. In any event,

we are persuaded we should uphold the convictions on this

record. There was repeated use of the interstate communications

facilities by defendants’ agents, despite out-of-state origin of

the calls, and the statute's other requirements were met. Our

conclusion is supported by United States v. Sellaro, 514 F.2d

114, 120-21 (8th Cir.), cert. denied, 421 U.S. 1013; see also

United States v. LeFaivre, 507 F.2d 1288, 1294 (4th Cir.),

cert. denied, 420 U.S. 1004. We therefore reject the argument

that the statute, as construed by Rewis, does not apply.

c. The question of knowledge of use of interstate facilities and

the jury instruction thereon.

Lastly, defendants argue that their convictions cannot stand

in view of lack of any knowledge by them that Amato or Colgan

were receiving interstate calls, relying on United States v.

Barnes, 383 F.2d 287 (6th Cir.), cert. denied, 389 U.S. 1040;

and United States v. Honeycutt, 311 F.2d 660 (4th Cir.) (Joint

ont <n

Brief for Appellants at 18-19). And a closely related argument

is made challenging the trial court's inclusion of a “run the risk”

instruction.”

We are not persuaded that the Barnes or Honeycutt cases

strictly apply here. They involved an attempt by the Govern-

ment to fasten criminal liability on defendants by imposing re-

sponsibility for the conduct of a co-partner which offends another

criminal statute—a federal one—even though such federally

proscribed conduct was not shown to be necessary or usual to

the partnership or known to the co-partners. See United States v.

Barnes, supra at 292: United States v. Honeycutt, supra at 662-

63. Here, instead, the proof supports a reasonable inference

that the defendants were involved in a gambling operation with

Amato and Colgan where the use of phones was apparent and

where interstate calls were not unlikely. With this much proved,

we feel it was not required under § 1952 to prove further that

defendants knew they were causing or aiding and abetting the

interstate use of the phone facilities.

Section 1952(a) condemns use of an interstate facility with

intent to promote, etc., any unlawful activity, followed by a

subsequent required act. It does not impose the additional

requirement of intent to use an interstate facility for there to

be a direct violation by the defendant's own conduct. United

States v. Sellaro, supra, 514 F.2d at 120-21 (8th Cir.); United

’ The trial court’s instruction was as follows (R VII 466-67):

I further instruct you that with respect to each count of the

indictment, if you find that a particular defendant did in fact

cause to be used or aid and abet the using of a facility in inter-

state commerce, it does not matter under the law that he may

not have known that his actions involved the use of a facility

in interstate commerce or that his actions caused or aided and

abetted the use of such facility. If that person performed an

act with a specific intent to further a business enterprise in-

volving bling, which enterprise was in violation of the

laws of the State of Colorado, he further ran the risk that his

actions caused or aided and abetted the use of such facility in

interstate commerce.

— A-12 —

States v. LeFaivre, supra, 507 F.2d a 1297-98 (4th Cir.);

United States v. Erlenbaugh, supra 452 F.2d at 973 (7th Cir.),

affd, 409 U. S. 239; United States v. Roselli, 432 F.2d 879,

891 (9th Cir.), cert. denied, 401 U.S. 924. Likewise proof

was not required here that the defendants, in causing or aiding

and abetting use of the phone facilities, knew that they would be

used for interstate calls. United States v. LeFaivre, supra, 507

F.2d at 1298.

We, therefore, conclude the proof was sufficient without es-

tablishing that the defendants knew the phones would be used

for interstate calls. It follows also that the instruction to this ef-

fect was proper. Cf. United States v. Smaldone, 485 F.2d 1333,

1348-49 (10th Cir.), cert. denied, 416 U.S. 936.

II

The Constitutionality of the Travel Act

Defendants argue that § 1952 violates the First, Fifth and

Tenth Amendments and that it is not a valid enactment under

the Commerce Clause provisions in Article I, Section 8, Clause

3, of the Federal Constitution. We disagree.

First, defendants say that the First Amendment is violated

because the statute abridges freedom of speech and peaceable

assembly; that due to the Act’s vagueness, one traveling in inter-

state commerce must hesitate to discuss placing a bet or odds

on point spreads, or even the scores of athletic contests, be-

cause of the broad terms in the statute such as “facilitate” and

others.

The Act has, however, been construed not to apply to others

where the proof showed only that they traveled into a State to

place bets, Rewis v. United States, 418 F.2d 1218, 1220-21

(Sth Cir.) (the holding of the Fifth Circuit on the Georgia resi-

— A-13 —

dents)." And the Rewis opinion of the Supreme Court held

that the statute did not apply to defendants where the proof

merely showed their acceptance of wagers by such travelers.

The statute covers those who travel in interstate commerce or

use interstate facilities with the intent to promote, et cetera, an

unlawful activity, and who commit further acts, and we feel

such conduct is not sheltered by the First Amendment. The

Amendment does not protect such “antisocial conduct which the

government has a valid interest in proscribing.” Spinelli v.

United States, 382 F.2d 871, 890 (8th Cir.), rev'd on other

grounds, 393 U.S. 410; United States v. Cerone, 452 F.2d 274,

286 (7th Cir.), cert. denied, 405 U.S. 964.

Second, defendants argue that § 1952 is void for vagueness

and hence invalid under Fifth Amendment due process prin-

ciples. They claim indefiniteness in the statutory terms, “pro-

mote, manage, establish, carry on or facilitate . . .” and cite

examples of uncertainty such as a janitor coming across a state

line to clean up a gambling establishment. Reliance is placed,

inter alia, on Baggett v. Bullitt, 377 U.S. 360, because of its

holding that a required oath including a promise to “promote”

respect for the flag and Federal and State institutions was un-

constitutionally vague.

Baggett v. Bullitt, however, clearly dealt with indefinite

Statutes whose terms “abut upon sensitive areas of basic First

Amendment freedoms.” Id. at 372. That is not the case here.

While the phrase including the word “promote” was held im-

permissibly vague in the First Amendment setting, we are satis-

fied that the statutory provisions in question here convey suffi-

ciently definite warning as to the proscribed conduct when

measured by common understanding and practices. United

States v. Petrillo, 332 U.S. 1, 8; Turf Center, Inc. v. United

" The Supreme Court expressed approval of this holding in its

Rewis decision, 401 U.S. at 811, although this question was not

before the Court.

an fp a

States, 325 F.2d 793, 795 (9th Cir.). That there may be some

borderline questions to decide is not fatal to the Act. We are

reminded that “the law is full of instances where a man’s fate

depends on his estimating rightly, that is, as the jury subse-

quently estimates it, some matter of degree.” Nash v. United

States, 229 U.S. 373, 377; United States v. Powell, ... US. ...,

..., 44 U.S.L.W. 4010, 4012.

In the context of the defendants’ conduct and the statutory

terms in question, we see no constitutional infirmity. And since

the case is not one of intrusion into areas protected by the

First Amendment, we should not consider the further hypo-

thetical cases suggested, being confined to the facts of the case

at hand. United States v. Powell, supra.

Third, defendants argue that § 1952 violates equal protec-

tion principles incorporated by the Fifth Amendment since it

operates differently in States where gambling is lawful from those

where it is outlawed. We agree with the courts which have

rejected this contention. United States v. Schwartz, 398 F.2d

464, 467 (7th Cir.), cert. denied, 393 U.S. 1062; Turf Center,

Inc. v. United States, supra, 325 F.2d at 795-96; United States

v. Ryan, 213 F.Supp. 763, 766 (D. Colo.).

Last, defendants say that regulation of gambling is not a

power conferred on the Federal Government and hence § 1952

is invalid under the Tenth Amendment. We feel the argument

is without merit. See Marshall v. United States, 355 F.2d 999,

1004 (9th Cir.), cert. denied, 385 U.S. 815.

—_

Il

The Electronic Surveillance Issue

a. The claim of taint from use of

State wiretap information

Defendants argue the prosecution is unlawful due to use by

the Federal agents of illegal wiretapping information obtained

from the Denver police, or that in any event there should be

a remand for further proceedings on the taint issue, with di-

rections that F.B.I. air telecommunications, not furnished to

defendants previously, be made available to them (Joint Brief

for Appellants at 31). Reliance is placed on Alderman v. United

States, 394 U.S. 165; Nolan v. United States, 423 F.2d 1031

(10th Cir.), cert. denied 400 U.S. 848; and United States v.

Alderisio, 424 F.2d 20 (10th Cir.).

The issue was raised by two pretrial motions to suppress

all evidence of intercepted telephone communications and

proof obtained as a result of leads therefrom for the reason

that the evidence was illegally obtained (R IX 24-28). The

motions were both denied. One motion was denied after a

pretrial evidentiary hearing at which the trial court stated that

there was no indication that there was or is any evidence that

the Government has obtained as a result of electronic surveil-

lance by the Denver Police Department, and therefore, there

being no such evidence there was nothing to suppress and the

motion was denied (R III 241).

The background facts concerning the issue follow. In Feb-

ruary, 1971, the Denver police obtained a State Court order

to intercept telephone conversations at the residence of one

DeLuzio in Denver. During the wiretap, conversations of de-

fendants Smaldone and Villano were recorded. Villano’s voice

was also identified in a second State wiretap conducted in

1972.

— A-16 —

At the hearing on the motion to suppress Sergeant Mulnix

testified. Mulnix had been in charge of the State’s wiretaps.

He said that to his recollection, none of the tapes or tran-

scripts of the recorded conversations were ever furnished to

federal agents. He testified that on several occasions he had

discussed Villano and Smaldone with agents Malone and Bush

of the Denver FBI office and had informed them of the ex-

istence of the DeLuzio wiretap. He said that the discussions

were of a general nature and that no FBI agent had ever re-

quested the tapes or transcripts of the wiretap.

Agent Malone testified that in February, 1971, the Denver

FBI office received a call from FBI Agent Anderson in Ne-

braska. Anderson told Malone that he had received informa-

tion that a person in Nebraska was placing wagers with a

bookmaker in Colorado by telephone. Malone said that he

first became aware that Villano was involved in the investiga-

tion in March, 1971, when he learned through a confidential

informant in Colorado that Villano was taking wagers at a

certain location. The phone number at this location matched

the phone number obtained from the Nebraska FBI office.

It was also some time in March, 1971, that Sergeant Mul-

nix had informed Malone of the DeLuzio wiretap, saying:

“We are picking up information that DeLuzio is involved with

the Smaldones in bookmaking.” (R III 135). However, Ma-

lone testified that he had known since 1968 that defendants

Villano and Smaldone were involved in bookmaking activities.

Malone also said that as a result of information from the

Nebraska FBI and his Colorado informant,'® several persons

1° Malone ‘testified that in February, 1971 they had received a

call from Agent Anderson in Nebraska who said he had received

information indicating a person in Nebraska was placing wagers with

a bookmaker in Colorado by phone. In subsequent calls to Ander-

son a correction to the phone number in Denver was obtained. With

that correction and information received from a Colorado informant,

and by going to this location, Malone was able to verify the number.

Malone received information from Omaha showing that several calls

—_—*

were identified and called before a federal grand jury. Smal-

done’s involvement in the gambling activities in question here

was discovered during testimony before the grand jury. Spe-

cial Agent Bush testified to the same eifect. He also said that

he had talke. with Sergeant Mulnix frequently. However,

Bush’s only inquiry concerning Villano was to ask Mulnix if

there were any indication of interstate conversations on the

DeLuzio wiretap, and Mulnix replied in the negative. Both

Malone and Bush testified that they had never listened to the

tapes nor read the transcripts of them (R III 140, 204). And

they said that none of the witnesses or evidence for this case

developed as a result of any information received through any

wiretap or electronic surveillance (R III 182, 211).

For their evidence of taint, the defendants rely primarily

on two police reports sent by the Denver Police to the Denver

FBI office (Def. Exs. G and H). These were factual sum-

maries concerning State cases filed against various individ-

uals. They contained affidavits making reference to the 1971

Del_uzio wiretap and the 1972 wiretap. Agent Bush said that

the first report came into the FBI office some time in April,

1971. Bush said he looked through the report but that no

investigation was made as a result of it. Agent Malone testi-

fied that the DeLuzio report first came to his attention in May

or June, 1971; that he read it; that it generally referred to

conversations; but that it did not contain the exact words that

were used. He further said that in 1972, Mulnix told him

there had been another wiretap in which Villano’s voice was

overheard. Malone read the second case summary concern-

ing that wiretap, brt no action was taken as a result of re-

ceiving the report.

were to the same number indicated by a Colorado informant who

had told Malone about a location where Villano was conducting his

bookmaking (R III, 132-33, 178-79). While the police reports

(Def. Ex. G and H), gave information that both defendants were

involved in gambling, Malone said he had known for several years

of their gambling activities (R III 141-42).

—&it—

Defendants argue that although Agents Malone and Bush tes-

tified that information for the federal charges came from inde-

pendent sources, the agents did have information on the exist-

ence and contents of the wiretaps which they could not put out

of their minds. However, the defendants have not pointed to

specific information the FBI was supposed to have received as

a result of the State investigation. The police summary from

the DeLuzio wiretap merely discusses in general Villano’s book-

making which was already known to Malone. The DeLuzio

report is more informative as to defendant Smaldone’s involve-

ment, referring to the fact she was accepting wagers from De-

Luzio at her residence on Pearson Way in Denver.

Despite the considerable information concerning gambling

activities of both defendants in the reports, both Special Agents

testified that information for these federal charges came from

independent sources. The testimony at the adversary hearing

satisfied the trial court and it was found that there was no

indication that there was or is any evidence that the Govern-

ment had obtained as a result of the Denver Police surveillance.

The court concluded that there being no such evidence, the

motion to suppress would be denied.

The initial burden to show that an unlawful surveillance oc-

curred rested on the defendants. Nolan v. United States, supra,

423 F.2d at 1041. Where such an illegal search has come to

light, the Government has the ultimate burden of persuasion

to show that its evidence is untainted. Alderman v. United

States, supra, 394 U.S. at 183. At the same time, the de-

fendant is required to “go forward with specific evidence dem-

onstrating taint.” Id.; Nolan at 1041. Without considering

whether an unlawful surveillance was shown,'! the trial court

'! The defendants argue that the Government admitted the un-

lawfulness of the Denver wiretaps. At the suppression hearing Gov-

ernment counsel did state that the wiretap “would perhaps not pass

— A-19 —

found there was no Government evidence resulting from the

Denver Police Department's electronic surveillance and denied

the motion to suppress (R III 241). We feel the finding is

amply supported and should be sustained.

b. The claim of error in denying

access to the airtels

The defendants claim that the trial court erred in denying

them an opportunity to examine FBI air telecommunications

(airtels).'- Defendants say they were entitled to examine the

airtels and other documents, which are not specified, to pro-

ceed with the evidence to show that the case was tainted. The

argument is that Alderman should not be limited to revealing

the wiretaps themselves, but that the rationale of Alderman

should be applied equally to the fruits of the recordings (Joint

Brief for Appellants at 27. 29), relying on United States v.

Alderisio, 424 F.2d 20 (10th Cir.).

In Alderisio, this court held that since the tapes and complete

logs of them were lacking, the defendant was entitled to examine

that portion of the airtels relating to the monitored conversations

federal muster because of the lack of reporting to the Court. . .”

(R Il 120). The trial court apparently found it unnecessary tc

determine whether the defendants’ initial burden of showing un-

lawfulness of the surveillance was met, and instead found that no

showing of taint was made. Since we feel that this finding is sup-

ported by the record, we likewise need not decide whether an un-

lawful surveillance was demonstrated.

'= Airtels (air tclecommunications) are a form of inter-office com-

munication between FBI field offices. Often, but apparently not

always, airtels are used to transmit summaries of information con-

tained in logs of recorded conversations. See, e.g., United States v.

Alderisio, 424 F.2d 20, 22 (10th Cir.); United States v. Bat-

taglia, 432 F.2d 1115, 1117 n. | (7th Cir.), cert. denied, 401

U.S. 924; United States v. Mirro, 435 F.2d 839. 841 (7th Cir.);

United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir.), cert. de-

nied, 400 U.S. 1000.

— A-20 —

not described in the logs, “if any there be.” Id. at 23. Here,

however, the transcripts of the monitored conversations were

furnished to the defendants (Joint Brief for Appellants, 27).

The Supreme Court has recognized that “[njothing in Alder-

man. . . requires ‘an adversary proceeding and full disclosure

for resolution of every issue raised by an electronic surveil-

lance.” Taglianetti v. United States, 394 U.S. 316, 317. In

fact, the general rule appears to be that the defendant is entitled

to see a transcript of his own conversations, and nothing else,

having no right to rummage in Government files. Id. at 317;

Alderman, supra at 185.

The Court has observed that the defendant, armed with speci-

fied records of overheard conversations and with the right to

cross-examine appropriate officials in regard to the connection

between those records and the case made against him, may need

or be entitled to nothing else. Id. Here the trial court determined

that the defendants were not entitled to the additional records.

We find no abuse of the discretion which rested on the trial court.

Alderman, supra at 185; United States v. Kane, 450 F.2d 77, 82

(Sth Cir.), cert. denied, 405 U.S. 934; United States v. Hoffa, 436

F.2d 1243, 1247 (7th Cir.), cert. denied, 400 U.S. 1000;

United States v. Mirro, 435 F.2d 839, 841 (2d Cir.).'*

c. The 1964 electronic surveillance

On the first day of the trial the Government reported from a

complete check through federal agencies that in 1964 an IRS

agent had monitored Villano’s telephone calls and that Villano

' The trial court examined the airtels in camera and stated that

they contained no indication of use by the Denver or Omaha office of

any improper source, particularly the electronic surveillance by the

Denver Police Department, as the basis for the investigation or in-

dictment, and denied access to them to the defendants (R III, 237-

38). We have examined the same material and are satisfied there

was no error or abuse of discretion by the trial court.

ow 21 —

had been interviewed by an IRS agent wearing a recorder (R V,

5-6). Defense counsel requested a hearing to determine the ex-

tent of any taint from this surveillance. The Government ob-

jected, arguing that 18 USCA § 3504(3) barred any considera-

tion of taint arising from such circumstances, and that the previ-

ous hearing on the State wiretaps had demonstrated that the

Government's investigation of defendants’ Trave! Act violations

was not connected with any other such surveillance. The trial

court denied the defense request for a hearing without stating its

reasons.

In resisting this claim of procedural error by the defendants,

the Government renews both arguments made to the trial court.

Without reaching the issue of the constitutionality of 18 USCA

$ 3504(3), which defendants challenge, we agree with the Gov-

ernment’s alternative position. Evidence unlawfully obtained

need not be suppressed if the causal connection between the un-

lawful Government conduct and the proof in question has “be-

come so attentuated as to dissipate the taint. Nardone v. United

States, 308 U.S. 338, 341; Wong Sun v. United States, 371

U.S. 471, 491. Agent Malone had previously testified he had

no knowledge of any electronic surveillance of the defendants

by federal agencies (R III, 164-65). There was no showing of

a connection or similarity between Villano’s 1964 operations

and the 1971 conduct under prosecution. We must agree the

request for the hearing was properly denied.

IV

Pre-Indictment Delay

Defendants assert that there was prejudicial delay from the

time of the Government's being informed of this case until in-

dictment. They point to the FBI having had information of a

possible violation in February, 1971, and the indictment not

having been returned until January 11, 1974. They claim loss

— A-22 —

of evidence and prejudice in violation of their Sixth Amendment

right to a speedy trial and their Fifth Amendment due process

rights, relying on Marion v. United States, 404 U.S. 307, Barker

v. Wingo, 407 U.S. 514, and similar cases (Joint Brief for Ap-

pellants, 48-51). The triai court denied a motion to dismiss

on these grounds, without comment (R III 240).

The claim of prejudice is based primarily on the fact that the

Government requested preservation of certain phone records,

which were introduced (Pl. Ex. 1-4), while other phone records

that would have aided the defense were destro, 2d pursuant to a

policy of the telephone company to destroy such phone records

after six months. Defendants point to a serious contradiction in

Ferris’ testimony when he stated on cross-examination that his

calls from Nebraska occurred a year earlier than the indict-

ment period (R V 129, 134).'* Using this as a predicate, de-

fendants argue that missing records of calls from Ferris’ Valen-

tine, Nebraska, telephones would have further contradicted

much of Ferris’ testimony.'* Moreover, they say other lost rec-

ords would have been relevant to determine whether long dis-

tance calls were made by defendants or by Colgan or Amato,

and that some witnesses became unavailable because of the

delay (Joint Brief for Appellants, 49-50).

14 Ferris testified before the grand jury, and at trial, that his bet-

ting was during the 1969-1970 season and that this was the only foot-

ball season when he made bets through the Denver numbers. The

record shows that the defendants had the grand jury transcript, cross-

examined effectively with it, and developed the contradiction before

the trial jury. On redirect, however, Ferris corrected his testimony

to correspond with the indictment period, and the jury apparently

accepted it.

15 The only records of interstate calls introduced into evidence

were those from Ferris’ North Platte, Nebraska, telephones. See

note 4, supra. Ferris also testified that he made calls from his home

and business in Valentine, Nebraska, but records of these numbers

were not introduced, apparently because they had been destroyed.

Other records lost included the long distance records for the phones

used by Amato and Colgan, and for any phones to which the de-

fendants had access.

—_—

We cannot accept the claim of substantial prejudice to the

defendants. Even if the lost Valentine phone records had shown

that no calls were made to the Denver numbers of Colgan and

Amato, the impeachment value would have been minimal. Fer-

ris testified that he made calls from North Platte, and this was

supported by the records (see not 4, supra). He said there were

some weeks during the indictment period in which he did not

bet, and a showing that no calls were made from the other lo-

cations would have detracted but little from the showing of re-

peated calls supported by the records.

As for the destruction of the records for defendants’ phones

and for the phones used by Amato and Colgan. we see no way

in which they could have aided defendants and none has been

demonstrated. Nor have defendants stated with any particularity

what witnesses were unavailable to them as a result of the delay,

or for that matter, what exculpatory testimony would have been

offered. See United States v. Merrick, 464 F.2d 1087, 1090-91

(10th Cir.), cert. denied, 409 U.S. 1023.

We are satisfied that there was no showing of substantial

prejudice to the defendants’ right to a fair trial or that the delay

was an intentional device to gain tactical advantage over the

accused, thus denying due process. United States v. Marion,

supra, 404 U.S. at 324; United States v. Merrick, supra, 464

F.2d at 1090-91. The indictment was filed well within the five-

year limitation period, 18 USCA § 3282, thus affording the

general protection provided by law against obscuring of facts

by the passage of time and punishment for acts of the far distant

past. Marion, supra at 323. The speedy trial guarantee began

operating when the defendants were indicted. Marion, supra at

313, and there is no showing of excessive delay or prejudice

thereafter since the trial commenced four months later. We

must reject the claims of violation of Fifth and Sixth Amend-

ment rights.

Double Jeopardy

Defendants claim violation of the Fifth Amendment prohibi-

tion against double jeopardy. The argument is that they were

charged, convicted and punished by the Colorado State courts

for gambling violations during the same continuous periods of

time covered by this federal indictment, and that the additional

prosecution and punishment by the Federal Government was

barred, relying on Waller v. Florida, 397 U.S. 387; United

States v. Crawford, 466 F.2d 1155 (10th Cir.), inter alia.

It is clear that the double jeopardy argument lacks merit. The

Waller case in no way departs from the established rule per-

mitting successive prosecutions by the Federal and State govern-

ments as separate sovereigns. Waller, supra at 392, and cases

there cited; United States v. Smaldone, 485 F.2d 1333, 1343

(10th Cir.), cert. denied, 413 U.S. 936. The Waller opinion

only barred separate prosecutions by a State court and a mu-

nicipal court since the judicial power of both courts sprang

from the same organic law. Wailer, supra at 393.

Nor does United States v. Crawford, supra, aid the defendanis.

Relief was granted there against a second conviction because of

the peculiar factual circumstances. The defendant had served

a Wyoming sentence for having stolen the subject car in Wyom-

ing (a reduced State charge of petty larceny), and was later

convicted in Federal court under the Dyer Act for having stolen

the car in Colorado and transporting it to Wyoming. The court

said the defendant could not have been guilty of both these of-

fenses, nor could he have been guilty of a Dyer Act violation

and the original Wyoming charge of receiving the stolen property

in Wyoming. In either event the factual premise for the State

conviction negated guilt under the Dyer Act. The case was one

of relief under the court’s supervisory power on the basis of

ee

—_*

these special facts and inherent unfairness, and not due to any

prohibition of separate federal and state prosecutions. 466 F.2d

at 1156-57.

We must reject the double jeopardy argument as untenable.

VI

Multiple Counts and Separate Fines

Defendants further assert that they were unlawfully subjected

to prosecution under multiple counts and given multiple fines.'"

They point out that the proof did not focus on their activities

separately as to any period of time; and that their operations

of Amato and Colgan overlapped in time; that there was only

one interstate bettor. They say the Government arbitrarily

charged separate offenses when the statute is concerned with

“unlawful activity” which cannot exist without continuing ac-

tivity, and that the multiple convictions and fines violate the

intent of Congress and amount to double jeopardy and cruel

and unusual punishment.

Bell v. United States, 349 U.S. 81, and United States v. Uni-

versal C.1.T. Credit Corp., 344 U.S. 218, clearly tell us that in

construing federal statutes to decide the allowable unit of prose-

cution, doubt will be resolved against turning a single transac-

tion into multiple offenses. Bell, supra at 84; Universal C.1.T.

Corp., supra at 221-22. However, the statute seems clear to us

here, as the court said in United States v. Polizzi, 500 F.2d 856,

_'® As stated, the three counts covered three successive time pe-

riods. Defendant Villano was sentenced to concurrent sentences of

one year and a day on each count, plus separate fines of $750 on

each count, or a total fine of $2,250. Defendant Smaldone’s sentence

was suspended and she was placed on two years’ concurrent proba-

tion on each count. She was also given fines of $750 on each count,

or a total fine of $2,250.

— A-26 —

897 (9th Cir.), cert. denied, 419 U.S. 1120: “The offense de-

fined is an act of travel or use of an interstate facility, with the

requisite intent, plus subsequent performance of another act of

the kind specified in the statute.” The continuing “unlawful ac-

tivity” is part of the required elements, but the key element for

the federal ffense is the act of travel or use of interstate facilities.

This follov . the persuasive logic of Judge Murrah in a similar

situation. Mitchell v. United States, 142 F.2d 480, 481 (10th

Cir.), cert. denied 323 U.S. 747. Hence charging separate of-

fenses here was not unwarranted and the separate convictions

and punishment giver were not improper on this proof.

We find that these objections to the separate convictions and

the sentences are all without merit.

We have examined the several remaining contentions of de-

fendants concerning, among other things, the denial of a sever-

ance. denial of a change of venue, sufficiency of telephone voice

identification, and jury instructions. We see no substance to the

points and no further discussion is necessary. We are satisfied

that the defendants had a fair trial, free of prejudicial error.

Affirmed.

—_

APPENDIX B

JUDGMENT OF COURT OF APPEALS, DATED

JANUARY 8, 1976, RE VILLANO

United States Court of Appeals

for the Tenth Circuit

November Term—January 8, 1976

Before The Honorable Oliver Seth, The Honorable William J.

Holloway, Jr., and The Honorable James E. Barrett, Cir-

cuit Judges.

United States of America, 7

Plaintiff-Appellee,

VS.

> No. 74-1464.

Pauline Smaldone,

Defendant-Appellant. |

A true copy

Teste

Howard K. Phillips

Clerk, U. S. Court of

Appeals, Tenth Circuit

Mary A. Sherman

Deputy Clerk

(Seal)

This cause came cn to be heard on the record on appeal from

the United States District Court for the District of Colorado,

and was argued by counsel.

— A-28 —

Upon consideration whereof, it is ordered that the judgment

of that court is affirmed. It is the further order of this court

that Pauline Smaldone, appellant, shall, within ten (10) days

from and after the date of the filing of the mandate of this

court in the district court, surrender himself to the custody of the

United States Marshal for the District of Colorado in execution

of the judgment and sentence imposed upon him.

/s/ Howard K. Phillips.

Clerk

J-2. 5/75

— A-29 —

APPENDIX C

JUDGMENT OF COURT OF APPEALS, DATED

JANUARY 8, 1976, RE SMALDONE

United States Court of Appeals

for the Tenth Circuit

November Term—January 8, 1976

Before The Honorable Oliver Seth, The Honorable William J.

Holloway, Jr., and The Honorable James E. Barrett, Cir-

cuit Judges.

United States of America, }

Plaintiff-Appellee,

VS.

($7-YD-PL “ON “D'A)

{ €9PI-bl “ON

Paul Clyde Villano,

Defendant-Appellant. j

A true copy

Teste

Howard K. Phillips

Clerk, U. S. Court of

Appeals, Tenth Circuit

Mary A. Sherman

Deputy Clerk

(Seal)

This cause came on to be heard on the record on appeal from

the United States District Court for the District of Colorado,

and was argued by counsel.

— A-30 —

Upon consideration whereof, it is ordered that the judgment

of that court is affirmed. It is the further order of this court that

Paul Clyde Villano, appellant, shall, within ten (10) days from

and after the date of the filing of the mandate of this court in

the district court, surrender himself to the custody of the United

States Marshal for the District of Colorado in execution of the

judgment and sentence imposed upon him.

s/ Howard K. Phillips

Clerk

J-2. 5/75

eee

—

APPENDIX D

ORDER OF COURT OF APPEALS, DATED

FEBRUARY 17, 1976, DENYING REHEARING

January Term—February 17, 1976

Before The Honorable David T. |_ewis, Chief Judge, The Hon-

orable Delmas C. Hill, The Honorable Oliver Seth, The

Honorable William J. Holloway, Jr., The Honorable Robert

H. McWilliams, The Honorable James E. Barrett, and The

Honorable William E. Doyle, Circuit Judges.

United States of America,

Plaintiff-Appellee,

VS.

Nos. 74-1463

Paul Clyde Villano, and Pauline 1-108

Smaldone,

Defendants-Appellants. ;

This matter comes on for consideration of the petition for

rehearing with suggestion for rehearing en banc which was

filed by the appellants in the captioned cases.

Upon consideration whereof, it is ordered that the petition

for rehearing is denied by Circuit Judges Seth, Holloway and

Barrett to whom the cases were submitted.

The Petition for Rehearing having been denied by the orig-

inal panel to whom the cases were submitted, and no member

of the panel nor judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc,

Rule 35, Federal Rules of Appellate Procedure, the sugges-

— A-32 —

tion for rehearing en banc is denied.

A true copy

Teste

Howard K. Phillips

Clerk, U. S. Court of

Appeals, Tenth Circuit

By Mary A. Sherman

Deputy Clerk

(Seal)

S

Howard K. Phillips

Clerk