Petition — Sanabria v. United States

Supreme Court, U. &.

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Supreme Court of the United States.

Octoser Term, 1976.

Nw. 76-1040

THOMAS SANABRIA,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the First Circuit.

Francis J. Dimenro,

Dimento & SULLIVAN,

100 State Street,

Boston, Massachusetts 02109.

Micnae. Davin RosenBeErc,

Rosensernc, Baker & Fine,

133 Mt. Auburn Street,

Cambridge, Massachusetts 02138.

Attorneys for Petitioner.

Of Counsel:

Davip J. Fine,

Rosenserc, Baker & FINE.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional provision and statute involved

Statement of the case

Reasons for granting the writ

I. The decision below violates the holding of

United States v. Jenkins because it authorizes

“further proceedings . . . devoted to the resolu-

tion of factual issues” following a trial that ended

“in the defendant's favor.”

Il. The lower .court’s attempt to distinguish

Jenkins not only fails; it articulates unprece-

dented doctrines which would subvert the entire

structure of double jeopardy analysis adopted by

this Court.

A. The judgment of acquittal was unitary and

indivisible: The district court's ruling on

numbers activity cannot be separated from its

ruling on horse betting.

B. The ruling on numbers activity was an evi-

dentiary ruling.

C. Sanabria’s right to double jeopardy protec-

tion is in no way diminished by the fact that

the district court's ruling on numbers activity

can be characterized as a legal rather than a

factual determination.

ao *& WO Ww W be

10

13

15

ii TABLE OF CONTENTS.

D. Sanabria’s motion to strike the evidence of

numbers activity was not the equivalent of a

motion for a mistrial

Ill. The decision below resolves two important

issues regarding the interpretation of 18 U.S.C.

§ 3731 and the double jeopardy clause never

decided by this Court — and resolves them in a

way that cannot be permitted to stand.

A. The Government's right to appeal from a

dismissal of a “discrete basis of criminal lia-

bility” that is less than an entire count of an

indictment.

B. The double jeopardy consequences of a dis-

missal for failure to provide a defendant with

sufficient notice of the charges against him.

IV. The court below decided incorrectly an im-

portant question involving a defendant's consti-

tutional right to receive notice of the charges

against him and to be tried only on the charges

made by the grand jury that indicted him. This

decision conflicts with the Fifth Circuit's ruling

United States v. Prejean, 494 F. 2d 495 (1974).

Conclusion

Appendix A: Opinion and judgment of the United

States Court of Appeals for the First Circuit

Appendix B: Judgment of acquittal of the United States

District Court for the District of Massachusetts

Appendix C: Indictment

16

18

18

19

21

TABLE OF AUTHORITIES CITED. iii

Table of Authorities Cited.

CASES.

Cole v. Arkansas, 333 U.S. 196 (1948) 22

Commonwealth v. Boyle, 346 Mass. 1, 189 N.E. 2d 844

(1963) 5

Commonwealth v. Edelin, Mass. Adv. Sh. (1976) 2795 22

Driscoll v. United States, 356 F. 2d 324 (Ist Cir. 1966) ll

Fong Foo v. United States, 369 U.S. 141 (1962) 13

People v. Brown, 40 N.Y. 2d 381 (1976), pet. for cert.

filed, 45 U.S.L.W. 3284 (Sept. 7, 1976) 15

Serfass v. United States, 420 U.S. 377 (1975) 6, 7, 8n,

9, 14n, 15, 20

United States v. Jenkins, 420 U.S. 358 (1975) 6, 7, 8, 9,

14n, 15, 17 et seq.

United States v. Means, 513 F. 2d 1329 (8th Cir. 1975) _—6,

17, 18

United States v. Morrison, 531 F. 2d 1089 (lst Cir.

1976) 21

United States v. Prejean, 494 F. 2d 495 (Sth Cir. 1974) 21

United States v. Wilson, 420 U.S. 332 (1975) 6,.7, 9, 13,

l4n, 15, 19 et seq.

iv TABLE OF AUTHORITIES CITED.

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fifth Amendment (double jeopardy clause) 2, 3, 6,

9, 13, 14, 15 et seq.

Sixth Amendment 3, 21

18 U.S.C.

§ 1955 2,4, 9, 11, 12

§ 3731 2, 3, 4, 6, 9, 13, 14 et seq.

28 U.S.C. § 1254(1) 2

Mass. G.L. c. 27]

§7 5

§ 17 5

MISCELLANEOUS.

Federal Rules of Criminal Procedure

Rule 7(c)(1) 21

Rule 7(c)(3) 21

8 J. Moore, Federal Practice (2d ed., Nov. 1976 revi-

sions) ll

1 Wright, Federal Practice and Procedure (1969) 11, 12

In the

Supreme Court of the United States.

Octoser Texm, 1976.

No.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the First Circuit.

Thomas Sanabria petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

First Circuit entered in this case on December 29, 1976.

The judgment of the court of appeals was entered on De-

cember 29, 1976, and this petition is filed within 30

days of that date. This Court's jurisdiction is invoked under

28 U.S.C. § 1254/1).

Questions Presented.

1. Do 18 U.S.C. § 3731 and the double jeopardy clause

permit the Government to appeal from an evidentiary ruling

made after jeopardy has attached, when the defendant is

ultimately acquitted, and a new trial would be necessary in

the event the Government's appeal were successful?

2. Do 18 U.S.C. § 3731 and the double jeopardy clause

permit the Government to appeal from a decision, made after

jeopardy has attached, dismissing a “discrete basis of criminal

liability” which constitutes less than an entire count of an

indictment, considering that the effect of a rule permitting

an appeal would be to expand greatly the number of

3. The petitioner was charged in a single count indictment

with violating 18 U.S.C. § 1955, which makes it a federal

3

things, involves five or more pers6ns and is in violation of state

law. At petitioner's trial, the Covernment introduced

evidence that the siagle gambling business charged in the

indictment involved illegal state betting on (a) horse races, and

(b) numbers. The court excluded evidence of the numbers

activity on the ground that this theory of criminal liability was

not encompassed by the indictment. The court then found

that the evidence of horse betting was insufficient to support a

conviction, and entered a judgment acquitting the petitioner.

Do 18 U.S.C. § 373i and the double jeopardy clause permit

the Government to appeal from the trial court's ruling on the

evidence of numbers activity, when the single count indict-

ment charged only one crime and the Government concedes it

is barred from appealing the acquittal as to the ruling on the

horse betting?

4. The indictment described in No. 3, above, cited a solitary

provision of Massachusetts law which has been construed by

the Massachusetts courts not to refer to numbers activity — a

type of betting made illegal by another provision of Massachu-

setts law, not cited in the indictment.

In view of this fact, would a conviction on the basis of evi-

dence of numbers activity be consistent with the requirement

of the Sixth Amendment that a defendant be fairly informed

of the charges against him, and of the Fifth Amendment that

a defendant be tried only on the charges made by the grand

jury that indicted him?

Constitutional Provision and Statute Involved.

The Fifth Amendment to the United States Constitution

provides in pertinent part:

4

“... nor shall any person be subject for ‘he same offence

to be twice put in jeopardy of life or limb. . . .”

Section 3731 of Title 18 of the United States Code provides

in pertinent part:

“In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or infor-

mation as to any one or more counts, except that no

appeal shall lie where the double jeopardy clause of the

United States Constitution prohibits further prosecution.”

Statement of the Case.

Petitioner Thomas Sanabria and fifteen others were indicted

for allegedly violating 18 U.S.C. § 1955, which makes it a

federal crime to engage in an “illegal gambling business.” The

federal statute defines such a business as one which, among

other things, involves five or more persons and is in violation

of state law. The one count indictment charged the defend-

ants with engaging in:

“an illegal gambling business [involving] . . . accepting,

recording, and registering bets and wagers on a parimu-

tual [sic] number pool and on the result of a trial and

contest of skill, speed and endurance of beast . . . [in]

violation of the laws of the Commonwealth of Massachu-

setts, to wit, M.C.L.A. Chapter 271, Section 17... .”

5

At trial, the Government introduced evidence purporting to

show that the single gambling business charged in the indict-

ment involved illegal state betting on (a) horse races, and (b)

numbers. After both sides had rested, petitioner Sanabria and

his codefendants moved' to strike as irrelevant that portion of

the Government's evidence which pertained to numbers activi-

ty. They argued that the only Massachusetts statute cited in the

indictment — Mass. G.L. c. 217, § 17 — had been inter-

preted by the Massachusetts courts to pertain exclusively to

gambling activity involving apparatus used in betting based on

a game of competition, such as horse racing. See Common-

wealth v. Boyle, 346 Mass. 1, 189 N.E. 2d 844 (1963). They

maintained that numbers activity was prohibited only by

Mass. G.L. c. 217, § 7.

Persuaded by this argument, the district court held that the

policy that criminal defendants receive notice of the charges

against them would be violated if the numbers aspect of the

case were permitted to proceed. Accordingly, the district

court excluded the Government's evidence of numbers activity

and ruled that the case could go to the jury solely on the

Government's horse betting theory.

Petitioner Sanabria then moved for a judgment of acquittal

on the ground that there was insufficient evidence of his

involvement in horse betting gambling to support his convic-

tion on this basis. Focusing on the evidence of horse betting

against Sanabria, and finding that it was indeed insufficient,

the district court granted his motion. The district court

permitted the case against Sanabria’s ten’ codefendants to

proceed, however, and the jury found each one guilty.

' This was a renewal of a motion that the defendants had made previ-

ously, without success, at the close of the Covernment’s case.

* As indicated earlier, the indictment names fifteen codefendants, but, for

reasons not pertinent here. the number had decreased to ten codefendants by

the time of tral.

The Government sought appellate review of the district

court's decision te acquit Sanabria. It conceded that there

could be no review of the ruling that there was insufficient

evidence of Sanabria’s involvement in horse betting to support

a conviction on that theory. But it maintained that there

could be review of the decision to exclude the evidence of

numbers activity, and requested that a new trial be ordered to

give the Government the opportunity to convict Sanabria on

that theory.

Observing that the case presented “several substantial ques-

tions” concerning the Government's right to appeal from an

adverse decision in a criminal case (A. 2a), the court of

appeals found that the district court's decision to exclude the

evidence of numbers activity was indeed reviewable under 18

U.S.C. § 3731. Turning to the merits, it ruled that the lower

court had erred in “dismissing” the “numbers based charge”

and remanded the case so that the Government could retry the

defendant on this “portion of the indictment” (A. 12a).

Reasons for Granting the Writ.

The decision below conflicts with this Court's decisions in

United States v. Jenkins, 420 U.S. 358 (1975), United States v.

Wilson, 420 U.S. 332 (1975), and Serfass v. United States

420 U.S. 377 (1975). It raises important questions regarding

the interpretation of 18 U.S.C. § 3731 and the double jeopardy

clause, which should be settled by this Court. And it conflicts

with the Eighth Circuit's decision in United States v. Means,

513 F. 2d 1329 (1975).

7

I. THe Decision Betow Viotates THE Hoipinc or UNITED

Srares v. Jenkins Because rr AuTHorizes “FurTHER Pro-

ceepincs . . . Devorep To THE Reso._uTion or FAcTuAL

Issues” FoLtLowinc A TRIAL THAT ENDED “IN THE DEFEND-

ANTS Favor.”

In three cases decided in early 1975 — United States v.

Wilson, 420 U.S. 332; United States v. Jenkins, 420 U.S. 358;

and Serfass v. United States, 420 U.S. 377 — this Court

formulated a bright line test for determining when the double

jeopardy clause bars further prosecution of a defendant. That

test provides that when, after a defendant is placed in

jeopardy, a trial terminates “in [his] favor,” the defendant is

shielded from “further proceedings . . . devoted to the resolu-

tion of factual issues going to the elements of the offense

charged.” United States v. Jenkins, 420 U.S. at 365, n. 7, 370

(1975).°

* In Serfass, the Government appealed from a pretrial order dismissing the

indictment. This Court upheld the Government's right to appeal because,

by virtue of the fact that the trial court was without power to make any

determination on defendant's pretrial motion regarding his guilt or

innocence, the defendant had never been placed “in jeopardy.” According-

ly, any further proceedings that might ensue on a successful Government

appeal would not subject the defendant to double jeopardy. 420 U.S. at

389-392.

In Wilson, the Government sought review of a postverdict decision

dismissing the indictment for prejudicial delay in bringing the defendant

to trial. This Court ruled that the appeal was permitted because any error

of law in the trial court's decision could be corrected, and the guilty verdict

could be reinstated, “without subjecting [the defendant] to a second trial

before a second trier of fact.” 420 U.S. at 345.

In Jenkins, the Government appealed from a decision dismissing the

indictment following a bench trial. Stating that it could not determine

“with assurance whether | the trial court's decision] was, or was not, a resolu-

tion of the factual issues against the Government” (420 U.S. at 369-370), this

Court, nevertheless, found that the Government's appeal was barred because

there was no adjudication of guilt that could be reinstated in the event the

appeal was successful. Further proceedings bearing on factual issues going

to the elements of the offense charged would be necessary and, even if all

that was required was for the trial court to make supplemental findings on

the basis of evidence already received, that would suffice to raise the bar of

double jeopardy. 420 U.S. at 370.

8

When this test is applied here, it is plain that the Govern-

ment’s appeal from the judgment acquitting Sanabria is con-

stitutionally barred. Sanabria was placed in jeopardy; the

trial terminated in his favor; and, if a Government appeal

were successful, further proceedings would be necessary to

establish his guilt. Under Jenkins, the basis of the ruling in

Sanabria’s favor is immaterial.‘ “[I)t is enough for purposes

of the Double Jeopardy Clause . . . that further proceedings

. would . . . [be] required upon reversal and remand.”

420 U.S. at 370.

* The only possible exception to this was indicated in Serfass v. United

States, 420 U.S. at 394, where this Court expressly reserved judgment on

the hypothetical situation of

“a defendant who is afforded an opportunity to obtain a determination

of a legal defense prior to trial and nevertheless knowingly allows him-

self to be placed in jeopardy before raising the defense.”

The court helow alluded to this hypothetical but ruled that it was not pre-

sented by this case. The court reached this conclusion because it interpreted

the reserved issue to refer only to the situation of a defendant “who prevails

at trial because of the trial judge's interpretation of the substantive criminal

law” (A. 9a), that is, a defendant who receives a legal determination that

his “conduct was such that criminal liability [cannot] be imposed” (A. 9a).

The court found that petitioner Sanabria did not fit into this category be-

cause the dismissal he received was not based on an evaluation of the con-

duct alleged but merely on a determination that he had not received proper

notice of the numbers charge.

Petitioner Sanabria agrees that he does not come within the hypothetical

described in Serfass but not for the reason indicated by the court of appeals.

In fact, Sanabria does not come within the hypothetical because he was

acquitted, not on the basis of a legal defense which he could have raised

before trial, but rather on the basis of a factual determination that could

only have been made at trial.

9

Il. THe Lowen Court's Atrempr to DisTINcuIsH JENKINS

not On y Fars; rr ArricuLaTes UNPRECEDENTED DocTRINES

WHICH WOULD Susvert THE Entire Strucrure or DouBLe

Jeorparpy ANALYsis ADoPTED BY THIS Court.

In attempting to justify the Government's right to appeal in

the face of Jenkins, Wilson and Serfass, the court of appeals

sought to establish four propositions:

1. For purposes of 18 U.S.C. § 3731 and the double

jeopardy clause, the district court's ruling that the evidence of

horse betting was insufficient to support conviction is separable

from its ruling that the evidence of numbers activity had to be

excluded (A. 4a-7a).

2. The district court's decision with respect to numbers

activity was in reality not an “evidentiary ruling,” but was

rather a ruling that the indictment failed to charge a violation

of 18 U.S.C. § 1955 on a numbers theory (A. 6a, n. 5).

3. Even though this ruling on the insufficiency of the

indictment was admittedly made after jeopardy attached, a

future prosecution will not offend the Constitution because

“(neither the judge nor the jury ever focused on what the

evidence of numbering activities established regarding defend-

ant’s conduct or on whether the alleged conduct was such that

criminal liability could be imposed” (A. 8a).

4. Sanabria’s motion to exclude the evidence of numbers

activity was the equivalent of a motion for a mistrial not

occasioned by prosecutorial or judicial overreaching (A. 10a-

lla).

Each of these propositions is a necessary link in the chain of

reasoning adopted by the court of appeals. If any one of

these propositions is invalid, the court's conclusion cannot

stand. In fact, all four of the propositions are invalid. We

will consider them in turn.

10

A. The Judgment of Acquittal was Unitary and Indivisible :

The District Court’s Ruling on Numbers Activity Cannot

be Separated from its Ruling on Horse Betting.

The first proposition is mistaken because the district court's

ruling on horse betting cannot be separated from its holding

on numbers activity without doing violence both to the indict-

ment and to the judgment of acquittal. Reading the indict-

ment most favorably to the Government, it charges the de-

fendants with engaging in an illegal gambling business that

encompassed two types of betting: (a) betting ‘on a pari-

mutual [sic] number pool”; and (b) betting “on the result of a

trial and contest of skill, speed and endurance of beast.” The

court of appeals argued that because o! the enumeration of

these two types of betting Sanabria

“could possibly have made a pretrial objection to the

indictment as duplicitous. If he had, the probable

response of the district court would have been to give

the government the option of proceeding on either a

numbers theory or a horse betting theory. See 8 Moore's

Federal Practice §8.04{1]. We can safely assume that,

as to [Sanabria], the government would have opted for

the former and that the case would have been tried solely

on a numbers theory, a fact which would have required

the district court formally to dismiss an entire count of the

indictment when it ruled on defendant's motion.” (A. 5a,

n. 4.)

The short answer to this argument is that what motion

Sanabria “could possibly have made,” what the district court's

“probable response” would have been, and what one can

“safely assume” the Government “would have opted for” have

ll

nothing to do with this case. Sanabria’s rights must be deter-

mined on the basis of what happened, not what could have

happened. What happened was that Sanabria was tried on a

one count indictment encompassing both horse betting and

numbers betting, and that, after being placed in jeopardy, he

was acquitted. No amount of speculation can change these

basic facts.

The second answer to the court’s argument is that the indict-

ment was not duplicitous. Duplicity is defined as “charging

multiple offenses in a single count.” 8 J. Moore, Federal

Practice §8.03[2], p. 8-7 (2d ed., Nov. 1976 revisions).

Accord, 1 Wright, Federal Practice and Procedure § 142

(1969). It is distinguished from charging the commission of a

single offense by different means, a “technique of pleading

. . . Specifically authorized by [Fed. R. Crim. P. 7(c)| and

.. . used by prosecutors to avoid variances between pleading

and proof.” Ibid.

The distinction between these two concepts is illustrated in

Driscoll v. United States, 356 F. 2d 324, 331-332 (lst Cir.

1966). The defendants there challenged as duplicitous a count

charging them with a violation of the wagering tax laws on

the ground that the count accused each of them as both

principal and agent, and hence with two crimes. The court

rejected the challenge, however, because it found that the

gravamen of the offense was “engaging in the business of

accepting wagers either as principal or agent.” 356 F. 2d at

331. Consequently, the court held that the case came within

the rule permitting a single count to allege that “the defendant

committed the offense . . . by one or more specified means.”

Ibid.

The same ruling applies here. 18 U.S.C. § 1955 makes it a

federal crime to engage in “an illegal gambling business.”

The indictment in this case accused Sanabria and his

codefendants with participating in such a business. Only one

12

“illegal gambling business” and one crime was charged. The

indictment enumerated two types* of betting, not for the

purpose of charging the existence of two discrete gambling

businesses — and hence two crimes — but rather for the

purpose of describing, in the alternative, two types of activity

which the single gambling business encompassed. Conse-

quently, since only one gambling business was alleged, and

only one violation of § 1955 was charged, the indictment was

not duplicitous. Indeed, if the charge of horse betting and

numbers betting had been split into two counts, the

indictment would have been subject to challenge as multi-

plicitous — that is, as charging one offense in two counts. See

1 Wright, Federal Practice and Procedure § 142 (1969).

Because the indictment here was never challenged as

duplicitous, and could not properly have been found duplic-

itous even if it had been challenged, the district court's judg-

ment of acquittal cannot be validly separated into horse

betting and numbers activity components. The judgment of

acquittal was a unitary judgment that Sanabria was not guilty

under the single count indictment. Consequently, the Govern-

ment cannot consistently concede, on the one hand, that there

cannot be review of the district court's ruling on horse betting,

and maintain, on the other, that there can be review of the

district court's decision on numbers betting. There was only

one indictment in this case and Sanabria’s trial under that

indictment terminated in a judgment of acquittal. To permit

the Government to dissect and worry that result for the

purpose « extracting a basis for further prosecution is to invite

precisely those evils which the double jeopardy clause was

designed to prevent. Indeed, such a ruling would provide a

pernicious precedent that:

* This is assuming arguendo that the indictment adequately charged

numbers, as well as sports, betting — a position petitioner rejected below

and continues to reject here. See point IV below.

13

“would allow the prosecutor to seek to nersuade a second

trier of fact of the defendant's guilt after having failed

with the first; it would permit him to re-examine the

weaknesses in his first presentation in order to strengthen

the second; and it would disserve the defendant's legiti-

mate interest in the finality of a verdict of acquittal.”

United States v. Wilson, 420 U.S. at 352.

B. The Ruling on Numbers Activity was an

Evidentiary Ruling.

18 U.S.C. § 3731 provides that the Government may appeal

from a decision

“suppressing or excluding evidence or requiring the return

of seized property in a criminal proceeding, not made

after the defendant has been put in jeopardy and before

the verdict or finding on an indictment or information

.. .” (emphasis added).

The plain implication of this provision is that the Government

may not appeal a decision excluding evidence made after the

defendant has been placed in jeopardy. The court of appeals

expressly recognized this and also seemed to recognize that,

under Fong Foo v. United States, 369 U.S 141 (1962), the

same conclusion is compelled by the double jeopardy clause

(A. 6a, n. 5). Nevertheless, the court of appeals held that the

Government could appeal here because Sanabria’s characteri-

zation of the district court's action as an evidentiary ruling was

“inaccurate.” Ibid. According to the court of appeals, the

district court's “critical ruling” was that “the indictment failed

to charge a violation of § 1955 on a numbers theory.” Ibid.

That the numbers evidence was “subsequently formally ex-

cluded” was in the view of the court of appeals “immaterial

since the earlier ruling rendered the evidence irrelevant in any

case.” Ibid.

14

The court of appeals’ reasoning is strained, to say the least.

Petitioner was tried with ten codefendants, all of whom joined

in the motion with respect to the numbers evidence. Follow-

ing the district court's determination of that motion — which,

it should be noted, the court characterized as a “motion to

strike” — the court and counsel for both sides engaged in the

laborious process of separating the documentary horse betting

evidence from the documentary numbers evidence so that the

latter could be excluded. The case went to the jury on the

horse betting evidence, and all of Sanabria’s codefendants

were convicted. In the face of this process, the contention

that the district court’s action was not “an evidentiary ruling”

is simply not tenable.

As for the court of appeals’ argument that the district court’s

ruling was not truly “evidentiary” because it was predicated

on a ruling pertaining to the indictment, it need only be

pointed out that there are countless times when a trial court is

called upon to make a ruling on the relevance of a piece of

testimony that requires it to determine the legitimate scope of

the indictment. The fact that such rulings require underlying

decisions regarding the indictment, however, hardly deprive

them of their character as evidentiary rulings. But, under the

court of appeals’ formula, the Government would have a

legitimate claim to appeal each of those rulings. Needless to

say, that would plainly contradict the intent of § 3731 and this

Court's interpretation of the double jeopardy clause.’

* The dispu.e which has arisen in this case over whether the district court's

decision was or was not an evidentiary ruling leads to a more fundamental

point. The very purpose of having the bright line test articulated in Jenkins,

Wilson and Serfass is to avoid disputes over the type of hair-splitting distinc-

tions in which the court of appeals’ decision is entangled. Consequently, the

whole inquiry into whether the district court's decision was or was not an

evidentiary ruling is misguided, and the reasoning of the court of appeals

must be rejected for this reason alone.

15

C. Sanabria’s Right to Double Jeopardy Protection is in No

Way Diminished by the Fact that the District Court’

Ruling on Numbers Activity can be Characterized as a

Legal rather than a Factual Determination.

Serfass, Wilson and Jenkins are unanimous in rejecting the

notion that the character of a trial court's decision as either

legal or factual has any impact on the consequences of that

decision under the double jeopardy clause.

In Serfass, this Court permitted an appeal from a pretrial

order despite the fact that the order was based on factual

findings that could have constituted a defense on the merits at

trial. In Wilson, the Court allowed an appeal from a post-

verdict order notwithstanding that the order was predicated

on factual determinations adduced from evidence presented at

trial. In Jenkins, the Court found that an appeal was

barred by the double jeopardy clause even though the

Court stated it could not determine whether the order

appealed from was “a resolution of the factual issues against

the Government.” 420 U.S. at 369-370. As the New York

Court of Appeals stated in People v. Brown, 40 N.Y. 2d 381,

392 (1976), pet. for cert. filed, 45 U.S.L.W. 3284 (Sept. 7,

1976):

“In Jenkins [the Supreme Court) could not have been

more explicit in making it clear that the legal-factual

dichotomy plays no role and that the concern of the

double jeopardy clause extends no further than to

question whether retrial might follow a successful prosecu-

tion appeal...

16

Thus, in finding that Sanabria’s right to the protection of

the double jeopardy clause was diminished because

“[njeither the judge nor the jury ever focused on what

the evidence of numbering activities established regarding

defendant's conduct or on whether the alleged conduct

was such that criminal liability could be imposed” (A. 8a),

the court below totally misconstrued this Court's decisions.

D. Sanabria’s Motion to Strike the Evidence of Numbers

Activity was Not the Equivalent of a Motion for a Mis-

trial.

The court of appeals found that Sanabria’s motion to strike

the evidence of numbers activity was tantamount to a defend-

ant’s voluntary motion for a mistrial because

“as in the mistrial context, defendant elected to forego his

valuable right to have his trial on numbers charges con-

cluded by the first tribunal” (A. lla).

This finding was plainly wrong for two reasons.

First, the set of expectations a defendant has when he

voluntarily moves for a mistrial are entirely different from the

expectations Sanabria had when he made his motion to

exclude the evidence of numbers activity. A defendant volun-

tarily moving for a mistrial knows that, if his motion is

granted, his trial will not be definitively concluded. Con-

sequently, a defendant making such a motion can be fairly

said to have consciously relinquished his valuable right to have

his tria! completed. When Sanabria made his motion, how-

17

ever, he knew that, if his motion was granted, and if the

district court found that the evidence of his involvement in

horse betting was insufficient, the trial would end in his favor.

Thus, Sanabria did not in any sense relinquish his right to

have his trial “concluded” and it is grossly unfair to regard

him as if he had. Indeed, Sanabria no more relinquished his

trial rights than any other defendant who requests an eviden-

tiary ruling in his favor during the course of a trial.

Second, this Court has rejected the type of double jeopardy

analysis, adopted by the court of appeals here, that would

export mistrial standards to situations where mistrials did not

in fact occur. When the Jenkins case was before the Second

“it is of critical importance whether the proceedings in

the trial court terminate in a mistrial as they did in the

Somerville line of cases, or in the defendant's favor, as

they did here.” 420 U.S. at 365, n. 7.

The Eighth Circuit reached a similar result in United States

v. Means, 513 F. 2d 1329 (1975), where the Covernment

sought review of a district court's mid-trial decision to dismiss

18

“The situation presented herein is a trial which termina-

ted in defendants’ favor after jeopardy had attached,

before a finding of guilt by the trier of fact, and with

no determination by the trial court that due process pre-

cludes a retrial or that ‘manifest necessity’ or the ends of

justice require a retrial.” 513 F. 2d at 1333.

Precisely the same thing can be said of the instant case. Just

as the mistrial analogy was rejected in Jenkins and Means, it

Ill. THe Dectsion Becow Resotves Two Important Issues

Recarpinc THE InTeRpreTaTiION oF 18 U.S.C. § 3731 aNnp

THE Dovusie Jeorparpy Ciause Never Decipep sy Tus

Court — anp Resoives THEM In A Way THAT CANNOT BE

PERMITTED TO STAND.

In the opening sentence of its opinion, the court of appeals

declared that this case presents “substantial questions” con-

cerning the Covernment’s right to appeal from an adverse

decision in a criminal case (A. 2a). These questions are

indeed so substantial, and the lower court's treatment of them

so inadequate, that they should be resolved by this Court.

A. The Government's Right to Appeal from a Dismissal of

a “Discrete Basis of Criminal Liability” that is Less than

an Entire Count of an Indictment.

18 U.S.C. § 3731 permits the Government to appeal from a

district court decision “dismissing an indictment or informa-

tion as to any one or more counts.” The decision below,

however, would permit the Government to appeal from a

decision dismissing “any discrete basis of criminal liability”

19

regardless of whether that “basis of liability” constituted an

entire count (A. 6a-7a). Such an “interpretation” not only

is to protect the “defendant's legitimate interest in the finality

of a verdict of acquittal.” United States v. Wilson, 420 U.S.

at 352, and n. 21. The rule proposed by the court below,

however, would seriously subvert that interest because it

acquitting a defendant on a count of an indictment would no

longer be final because the Government would still have the

opportunity to appeal if it could show that the count

encompassed “discrete bases of criminal liability” which had

not been adjudicated on the facts but which had been dis-

missed on legal grounds. Indeed, the net result of such a rule

would be very close to allowing the Government to appeal

from all legal errors made during the course of a trial — a

result expressly and consistently rejected by this Court. E.g.,

United States v. Jenkins, 420 U.S. at 369; United States v.

Wilson , 420 U.S. at 352. It is, therefore, essential that the

rule proposed by the lower court be reviewed by this Court,

and reversed.

B. The Double Jeopardy Consequences of a Dismissal for

Failure to Provide a Defendant with Sufficient Notice of

the Charges Against Him.

The court below observed that this Court has never passed

“the issue of the double jeopardy consequences of a dis-

missal of a count of an indictment by reason of its failure

to provide the criminal defendant witi sufficient notice of

the charges against him” (A. 7a).

The lower court then proceeded (at A. 8a) to distinguish such

a dismissal both from

(1) adjudications that the defendant did not commit the

crime charged; and

(2) adjudications that the alleged conduct was such that

even if the defendant committed it, liability could not be

imposed.

Because such a dismissal is not in either of these categories,

the court argued, its double jeopardy consequences are

minimal — so minimal, in fact, that the Government may

appeal from such a dismissal regardless of whether it is entered

after jeopardy has attached, and regardless of whether it

becomes merged, as it did in this case, in a judgment of

acquittal.

Both this conclusion, and the reasoning which the lower

court followed to reach it, are woefully misguided. Indeed,

the notion that dismissals are to be divided into three separate

categories with three different sets of double jeopardy con-

sequences is the antithesis of the bright line scheme which this

Court began to establish in Jenkins, Wilson and Serfass. To

reaffirm that scheme, and to fulfill the goals of simplicity,

fairness, and predictability which it was designed to meet, this

Court should review the lower court's decision and reject the

categorization of dismissals which it needlessly proposes.

21

IV. Tre Court Becow Decipep INcornrnecrtLy AN IMPORTANT

Question INvoLviING A DEFENDANT'S CONSTITUTIONAL RIGHT

To Recerve Notice or THe Cuarces Acainst HIM AND TO BE

Taep ONLY ON THE CHaARGcES MADE BY THE GRAND JuRY

THAT INpicrep Him. Tus Decision CONFLICTS WITH THE

Firrn Cracurr’s Ruuinc iy Unrrep States v. Pregean, 494

F. 2d 495 (1974).

The district court found that the indictment did not give

adequate notice that the Government was proceeding against

the defendant on a numbers, as well as on a horse betting

theory, because the indictment cited a solitary provision of

Massachusetts law which had been expressly construed to

reach only gambling activity involving apparatus used in

betting based on a game of competition, such as horse racing.

The Massachusetts courts had consistently found that numbers

betting was to be prosecuted under another provision of

Massachusetts law, which the Government had not cited in the

indictment.

In United States v. Morrison, 531 F. 2d 1089, 1094 (Ist Cir.

1976), decided after the district court's ruling but before the

decision below, the First Circuit, in confronting an indictment

substantially identical to the one here, tacitly accepted this

reading of Massachusetts law. Nevertheless, it found that the

faiiure to cite the proper state statute was “harmless error”

in view of the fact that the indictment did refer to “a pari-

mutuel number pool.”

In reaching this conclusion, the court incorrectly relied on

Fed. R. Crim. P. 7(c)(3), a provision which plainly refers to

errors in the citation of the statute of the crime charged — see

the last sentence of Fed. R. Crim. P. 7(c)(1) — and can be of

no aid to the Government where the statutory citation is sub-

stantively required as an essential element of the crime. In

fact, as the Fifth Circuit held in United States v. Prejean, 494

F. 2d 495 (1974), the requirements for accurecy in a statutory

citation serving this substantive purpose must be stringent

indeed to protect a defendant's Sixth Amendment right to be

fairly and unambiguously informed of the charges against him,

and his Fifth Amendment right to be tried only on the charges

made by the grand jury that indicted him. See Cole v.

Arkansas, 333 U.S. 196 (1948); Commonwealth v. Edelin,

Mass. Adv. Sh. (1976) 2795.

The defect in the indictment here was hardly a harmless

miscitation. It was, rather, a substantive error of constitution-

al dimension that, at the least — taking the view most favor-

able to the Government — created a real ambiguity as to the

precise charge on which the defendants had been indicted and

on which the Government was proceeding. Consequently, the

district court's decision to exclude the evidence of numbers

activity was unquestionably correct, and the contrary ruling of

the First Circuit must be reversed.

23

Conclusion.

For all the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

FRANCIS J. DIMENTO,

DIMENTO & SULLIVAN,

100 State Street,

Boston, Massachusetts 02109.

MICHAEL DAVID ROSENBERG,

ROSENBERG, BAKER & FINE,

133 Mt. Auburn Street,

Cambridge, Massachusetts 02138.

Attorneys for Petitioner.

Of Counsel:

DAVID J. FINE,

ROSENBERG, BAKER & FINE.

January 28, 1977

la

Appendix A.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

No. 76-1016.

UNITED STATES OF AMERICA,

APPELLANT,

v.

THOMAS SANABRIA,

APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS.

{Hon. Walter Jay Skinner, U.S. District Judge}

Before Coffin, Chief Judge,

McEntee and Campbell, Circuit Judges.

Frederick Eisenbud, Attorney, Department of Justice, with whom James

N. Gabriel, United States Attorney, Stephen H. Jigger, Special Attorney,

Department of Justice, and Sidney M. Glazer, Attorney, Department of

Justice, were on brief, for appellant.

Francis ]. DiMento, with whom DiMento & Sullivan and Donald GC. Tye

were on brief, for appellee.

December 29, 1976

2a

Corrin, Chief Judge. This case presents several substantial

questions concerning the conditions under which the United

States may appeal from an adverse decision in a criminal

case.

In November, 1972, defendant-appellee Thomas Sanabria

and fifteen others were indicted for conducting an illegal

gambling business, encompassing both a numbers and a horse

betting operation, in violation of 18 U.S.C. § 1955.' The one

count indictment charged them with “accepting, recording

and registering bets and wagers on a parimutual [sic] number

pool and ‘on the result of a trial and contest of skill, speed, and

endurance of beast . . . a violation of the laws of the Com-

monwealth of Massachusetts, to wit, M.C.L.A. Chapter 271,

Section 17. . . .” Following some three years of pre-trial

activity, a jury trial of defendant and ten co-defendants

commenced on November 10, 1975 in the federal district court

for the district of Massachusetts. At trial, the government

introduced evidence tending to show that defendants were

involved in an illegal numbers and horse betting gambling

business in Massachusetts.

After both sides had rested, defendant moved for a judg-

ment of acquittal. He argued first that there was insufficient

evidence of his involvement in horse betting gambling to

support a conviction upon that theory and second that, regard-

less of the evidence of numbers activity, the government had

fai'ed sufficiently to allege a violation of the Massachusetts

laws prohibiting such conduct and could not prosecute him on

a numbers theory. Defendant reasoned that the only Massa-

chusetts statute which was cited, Mass. Gen. Laws c. 217 § 17,

' Section 1955 makes it a federal crime to conduct an illegal gambling

business that involves five or more persons and that is in substantially con-

tinuous operation for a period in excess of thirty days. It provides that

“illegal gambling business” means “a gambling business which is a violation

of the law of a State or political subdivision in which it is conducted.”

3a

has been interpreted by the Massachusetts courts as not to

prohibit numbers activity, which, under the case law, is pro-

scribed exclusively by id. § 7, see Commonwealth v. Boyle,

346 Mass. 1, 189 N.E. 2d 844 (1963). He therefore urged that

there had not been a sufficient allegation of illegal numbers

activity to permit the government to obtain a guilty verdict on

that basis. This objection to the indictment had not been

raised either in the pre-trial motions or in any objection to the

introduction of evidence during the trial.’

The district court was persuaded by defendant's argument

regarding Massachusetts law, and presumably because it

thought that the citation of § 17 alone could have led a

criminal defendant to believe that the government was not

proceeding on a numbers theory, it held that the policy that

criminal defendants receive notice of the charges against them

would be violated if the numbers aspect of the case were

permitted to proceed. Having concluded that the indictment

could not be interpreted to charge accepting bets on a pari-

mutuel numbers pool, the district court excluded the govern-

ment’s evidence of numbers activity. It then focused on the

evidence of horse betting and, finding it insufficient, entered a

judgment of acquittal for defendant.

The government now seeks appellate review of the district

court's action. It concedes that there can be no review of the

district court's ruling that there was insufficient evidence of

horse betting to support a conviction. However, it seeks

review of the district court’s decision to exclude the charge

based upon numbering activities, and it requests that we order

a new trial on this portion of the indictment. If we have

appellate jurisdiction, there is no question but that the govern-

* The record reflects that defendant was aware of the alleged defect in the

indictment before the trial began. In a post-judgment colloquy with the

trial judge, defendant's counsel stated that he had been prepared to raise his

objections at the beginning of trial.

4a

ment is entitled to the relief it seeks.’ In United States v.

Morrison, 531 F. 2d 1089, 1094 (Ist Cir. 1976), which had not

been decided at the time of the district court’s action, we held

that an indictment which was identical to that in the case at

bar in all significant respects was sufficient to place the

criminal defendant on notice that numbers activity was a basis

upon which the government sought to establish criminal lia-

bility under § 1955. Defendant concedes that Morrison is

controlling if we have appellate jurisdiction.

Since the government may appeal an adverse judgment in a

criminal case only when authorized by statute, see United

Sanges, 144 U.S. 310 (1892), the first question we must face is

whether a statute authorizes this appeal. The relevant statu-

tory provision, 18 U.S.C. § 3731, provides in pertinent part:

“In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or in-

formation as to any one or more counts, except that no

appeal shall lie where the double jeopardy clause of the

United States Constitution prohibits further prosecution.

“The provisions of this section shall be liberally con-

strued to effectuate its purposes.”

* Although neither party addresses this point, we observe that we see no

problem with permitting a trial on only a portion of a count of an indict-

ment. As we discuss later, see n. 4, “severance” of a count is the general

practice when a count of an indictment is duplicitous, see 8 Moore's Federal

Practice 8.04[1], and this strongly suggests that there is no barrier to

having a retrial proceed on only that portion of the indictment which

charges a § 1955 violation on a numbers theory.

5a

In deciding whether the present appeal is authorized there-

under, we must determine. first, whether the district court's

action was the dismissal of an indictment “as to any one or

more counts” within the meaning of § 3731, and, second,

whether the double jeopardy clause will prohibit further

proceedings against the defendant under § 1955 based upon

allegations of numbers activity. The latter question, of course,

pertains both to our appellate jurisdiction and to the constitu-

tionality of such further proceedings against defendant.

The first issue arises because the district court's action was

district court removed the numbers charge from the case, the

single count of the indictment still charged a crime. Although

the district court did not remove an entire count from the

indictment, its action clearly eliminated one basis for imposing

criminal liability on defendant.‘ We think this fact is suf-

‘If the government had succeeded in establishing that defendant had

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ficient, assuming no double jeopardy bar, to make the district

court's action reviewable at the behest of the government.’

prohibiting government appeals from an dismissing

criminal charge when that charge did not formally comprise

an entire count of an indictment. The sole practical effect of

Here, the district court effectively dismissed the

i

! States, .

133 (1904), it apparently is settled that jeopardy attaches upon

the institution of trial proceedings, even if the indictment is

defective. See Illinois v. Somerville, 410 U.S. 458, 466-67

(1973); United States v. Ball, 163 U.S. 662 (1896).

The fact that defendant was placed in jeopardy of course

“begins, rather than ends, the inquiry.” Illinois v. Somer-

ville, supra, 410 U.S. at 467. The fundamental value em-

bodied in the clause is the belief that, since repeated prosecu-

tions cause a variety of hardships, subject the defendant to a

continuing state of anxiety, and enhance the possibility that,

although innocent, he may be found guilty, the state with its

vast resources should not be permitted repeatedly to attempt to

convict an individual for an alleged offense. See Green v.

United States, 355 U.S. 184, 187-88 (1957). Since a second

prosecution of an individual does not always seriously impli-

cate this fundamental value and since there is a counter-

vailing public interest in having criminal prosecutions term-

inate in just judgments, criminal defendants have never been

held to have an absolute right to be placed in jeopardy only

once on any given criminal charge. See United States v. Jorn,

400 U.S. 471, 484 (1971) (plurality opinion); United States v.

Tateo, 377 U.S. 463, 466 (1964). Although the policies pro-

tected by the double jeopardy clause are implicated the instant

jeopardy attaches, the public and private interests at stake are

such that whether a criminal defendant who has once been the

subject of a criminal prosecution wil] enjoy protection against

future proceedings depends upon the reason the first prosecu-

tion ended.

The numbers based proceeding against defendant was termi-

nated solely because he was deemed not to have received

sufficient notice of the charges against him. Neither the judge

nor the jury ever focused on what the evidence of numbering

activities established regarding defendant's conduct or on

whether the alleged conduct was such that criminal liability

could be imposed. Because of this fact, a future prosecution

in this case will not threaten one of the principal private

interests protected by the clause: the criminal defendant's

9a

interest in preserving a district court's ruling that he is not

criminally responsible. Here, the trier of fact had no occasion

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2d 78, rehearing and rehearing en banc denied, 521 F. 2d 815

(5th Cir. 1975), cert. denied, _.. ~ U.S. ____._ (1976) with

United States v. Lucido, 517 F. 2d 1 (6th Cir. 1975) and

People v. Brown, 40 N.Y. 2d 446, 19 Crim. L. Rep. 2318

(New York June 17, 1976), petition for cert. filed, 45

U.S.L.W. 3317 (Oct. 4, 1976).

What is involved, however, is the criminal defendant's

as neither the prosecutor nor the judge had been able to

manipulate events so that the defendant would be forced to

“forego his valued right to have his trial completed by a

particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689

(1949). Typically, the issue arises in cases in which the first

and

necessity” or “the ends of public justice” required the mistrial

order. See United States v. Sanford, __. U.S. ____ (Oct. 12,

1976); Illinois v. Somerville, supra. More significantly for

this case, when the defendant moves for a mistrial as the result

of developments in the prosecution which are not attributable

to prosecutorial or judicial overreaching, the motion “is

ordinarily assumed to remove any barrier to reprosecution,

even if the defendant's motion is necessitated by prosecutorial

or judicial errors.” United States v. Jorn, supra, at 485; see

United States v. Dinitz, _.. U.S. ___. (March 8, 1975).

We believe the cases permitting future prosecutions of

defendants whose first trials ended in mistrials following their

lla

motions control this case. Here, as in the mistrial context,

defendant elected to forego his valuable right to have his trial

on numbers charges concluded by the first tribunal. He did

so because he believed — incorrectly as it turns out — that,

because of a prosecutorial error, the indictment insufficiently

alleged a § 1955 violation on a numbers theory. Defendant

has not made, nor can he make, any suggestion that the

government intentionally manipulated events to gain some

advantage at the first trial or to force defendant to forego his

right to proceed before the first tribunal. Indeed, both the

record in the case and the logic of our decision in United

States v. Morrison, supra, virtually compel the conclusion that

the indictment placed defendant at no disadvantage at the first

trial. Since defendant voluntarily requested termination of

proceedings based upon the numbers activities before there

had been any determinations regarding either his conduct or

its legal consequences, and since there can be no suggestion

that defendant's request was attributable to developments

resulting from prosecutorial or judicial overreaching, we hold

that there is no double jeopardy bar to a future prosecution on

this cause. In so holding, we note that we are following at

least one of our sister circuits. See United States v. DiSilvio,

520 F. 2d 247 (3d Cir.), cert. denied, 423 U.S. 1015 (1975).

We observe that had the government foreseen the possible

objection to the indictment during the trial, called it to the

court's attention, and requested the court to declare a mistrial

if it believed such an objection would be well taken, Illinois v.

Somerville, supra, would appear to compel the conclusion that

the double jeopardy clause would not have barred further

proceedings following a declaration of mistrial. Certainly, the

government's right to institute further proceedings cannot be

any the less when the defendant, not it, makes the motion that

results in the termination of a cause.

12a

We conclude that the district court's action in dismissing the

numbers based charge is reviewable under § 3731. As we

have already indicated the district court, not having the bene-

fit of Morrison, erred in terminating this aspect of the prosecu-

tion. The judgment of the district court is, therefore, vacated

and the case is remanded so that the government may try

defendant on that portion of the indictment that charges a

violation of § 1955 based upon numbering activities.

So ordered.

No. 76-1016.

UNITED STATES OF AMERICA,

APPELLANT,

v.

THOMAS SANABRIA,

DEFENDANT, APPELLE.

JUDGMENT

Entered December 29, 1976

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: That portion of the judgment

that acquitted the defendant of the charge of a violation of §

1955 based upon numbers activities is vacated, and the cause

is remanded for a trial on that portion of the indictment that

charges a violation of § 1955 based upon numbers activities.

The balance of the judgment of the District Court is affirmed.

By the Court:

/s/ DANA H. GALLUP

Clerk.

l4a

Appendix B.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA

VS. CRIMINAL No. 72-326-S

THOMAS SANABRIA

JUDGMENT OF ACQUITTAL

November 18, 1975

SKINNER, J.

On the 10th, llth, 12th, 13th, 14th and 18th days of

November, 1975 came the attorney for the government and

the defendant Thomas Sanabria appeared in person and by

counsel, Francis DiMento, Esq., and

The defendant having been set to the bar to be tried for the

offense of unlawfully engaging in an illegal gambling business,

in violation of Title 18, United States Code, Sections 1955 and

2, and the Court having allowed defendant's motion for judg-

ment of acquittal at the close of government's evidence,

It is hereby Orperep that the defendant Thomas Sanabria

be, and he hereby is, acquitted of the affense charged, and it

is further Orperep that the defendant Thomas Sanabria is

hereby discharged to go without day.

WALTER JAY SKINNER

U.S. District Judge

15a

Appendix C.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

INDICTMENT

UNITED STATES OF AMERICA

v. CRIMINAL No. 72-326-W

HARVEY T. PLOTKIN, RUTH LYNCH,

STEVEN J. EMERSON, BONNIE R. GLIXMAN,

JOSEPH GLIXMAN, DOMINIC L. SERINO,

JOSEPH W. WILKER, PHYLLIS FRANKLIN,

ARTHUR PLOTKIN, JOHN MOCCIA, JULIUS

SILVERMAN, JOHN J. CONSIDINE, JR.,

DAVID SHERMAN, THOMAS SANABRIA,

BERNARD HARRIGAN, JOHN WOLLEN

The grand jury charges:

From on or about June 1, 1971 and continuing thereafter up

to and including November 13, 1971 at Revere Massachusetts

within the District of Massachusetts,

HARVEY T. PLOTKIN, a/k/a “TEDDIE”, of Revere

RUTH LYNCH, of Revere

STEVEN J. EMERSON, of East Boston

BONNIE R. GLIXMAN, of Revere

JOSEPH GLIXMAN, of Revere

DOMINIC L. SERINO, of Revere

l6a

JOSEPH W. WILKER, of Newton

PHYLLIS FRANKLIN, of Revere

ARTHUR PLOTKIN, of Revere

JOHN MOCCIA, a/k/a “JAKE”, of Revere

JULIUS SILVERMAN, a/k/a “JULIE”, of Malden

JOHN J. CONSIDINE, JR., a/k/a “JACKIE”, of Revere

DAVID SHERMAN, a/k/a, “YARBO”, of Swampscott

THOMAS SANABBIA, of Boston

BERNARD HARRIGAN, of Malden

JOHN WOLLEN, of Nashua, New Hampshire

did unlawfully, knowingly, and wilfully conduct, finance,

manage, supervise, direct and own all and a part of an illegal

gambling business, to wit, accepting, recording and registering

bets and wagers on a parimutual number pool and on the

result of a trial and contest of skill, speed, and endurance of

beast, said illegal gambling business; (i) was a violation of the

law of the Commonwealth of Massachusetts, to wit, M.G.L.A.

Chapter 271, Section 17, in which place said gambling busi-

ness was being conducted; (ii) involved five and more persons

who conducted, financed, managed, supervised, directed and

owned all and a part of said business; (iii) had been in sub-

stantially continuous operation for a period in excess of thirty

days and had a gross revenue of two thousand dollars ($2,000)

in any single day; all in violation of Title 18, United States

Code, Section 1955 and 2.