Petition — Helfer v. United States

————-

Supreme Court, U.S,

FILED

; JAN 18 1978

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, A.D. 1977

No. 77-999

REUBEN HELFER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LONDRIGAN & POTTER, P.Cc.

By: THOMAS F. LONDRIGAN

1227 South Seventh Street

P.O. Box 399

Springfield, Illinois 62706

Attorneys for Petitioner.

SS SCHNEPP & BARNES PRINTERS, INC., SPRINGFIELO, ILL.

Page

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Questions Presented for Review ......... 6.600006. 2

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Appendix:

Applicable Federal Statutes ........00ccee eens 23-25

Federal Rules of Criminal Procedure ........... 26

Opinion of the Court of Appeals .........0.005s

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1

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CITATIONS

CASES

Page

Kotteakos v. United States, 328 U.S. 750, 66 S.Ct.

1239, 90 L.Ed. 1557, 1571, 1572 (1945) ............ ll

United States v. Donaway, 447 F., 2d 940, 943

OE et A re rr rer err ree 12

l’nited States v. Levine, 546 F. 2d 658

UR OR, ee errr rr Te re 16

United States v. Mardian, 546 F, 2d 973, 977

(U.S. App. D.C., 1976) ..ccccccccscescevvcvcece 16-17

United States v. Whitehead, 539 F. 2d 1023

COR Ce, TOGED oc'o.0c 0006000eeccevessees doecess 16

ii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, A.D. 1977

No.

REUBEN HELFER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

(a) THIS CASE IS REPORTED IN 563 F. 2d 836 (7th

Cir. 1977).

(b) GROUNDS FOR JURISDICTION;

(i) The Opinion of the Seventh Cireuit Court of Ap-

peals was rendered on September 29, 1977,

(ii) Petition for Rehearing En Banc was denied on

December 15, 1977,

(iii) Statutory provisions conferring jurisdiction:

§ 1254(1) of Title 28, United States Code.

(c) QUESTIONS PRESENTED FOR REVIEW:

(1) Where the Government has failed to prove a con-

spiracy is a severance mandatory where the defendant was

indicted together with other co-defendants charged with

unrelated offenses?

(d) APPLICABLE FEDERAL STATUTES:

§ 1955, 1961, 1962 of Title 18 United States Code; Rules

8 and 14 of Federal Rules of Criminal Procedure.

(Full text of applicable statutes and rules is set forth in

Appendix hereto.)

(A)

NATURE OF THE CASE

This was a criminal action brought against the defendant

Helfer as part of a larger action charging thirteen (13)

defendants with separate criminal offenses and concluding

with a single count alleging censpiracy to engage in a

pattern of racketeering naming all defendants. The de-

fendant Helfer was charged with operation of an illegal

gambling business involving the playing of games of chance

(Count I) and with conspiracy to engage in a pattern of

racketeering. (Count VII)

(B)

COURSE OF THE PROCEEDINGS

The defendant Helfer was indicted by Grand Jury along

with twelve (12) other defendants on September 24, 1975.

After the arraignment the defendant Helfer filed a Motion

for Severance on January 8, 1976. On March 19, 1976, the

District Court entered an order denying all of the defen-

dants’ Motions for Severance.

(C)

DISPOSITION

On September 30, 1976, the jury returned a verdict of

guilty for all defendants oa all counts. On October 6th,

defendant Helfer filed a motion for a new trial, a motion

in arrest of judgment and a motion for renewal of motion

for judgment of acquittal. On November 19, 1976, the

motions were denied and judgment was entered. Defendant

Helfer was fined $1,000.00 on Count I and granted 5 years

probation on Count VII with a special condition that he not

engage in gambling activity of any type. Defendant Helfer

4

filed his notice of appeal on November 23, 1976. The

Opinion of the Seventh Cireuit Court of Appeals was ren-

dered on September 29, 1977. The Defendant Helfer’s

conviction under Count VII (conspiracy) was reversed,

and his conviction under Count I (gambling) was affirmed.

Defendant Helfer’s Petition for Rehearing Ex Bane was

denied on December 15, 1977.

The defendant Helfer directed his Petition for Rehearing

En Banc to the prejudiee of being linked together in a non-

existant conspiracy and the préjudice occasioned by proof

of other serious federal crimes which occurred without his

participation or knowledge.

(D)

STATEMENT OF FACTS

Defendant, Reuben Helfer, was charged only under two

counts of the indictment:

Count I — Operation of an illegal gambling business for

a period in excess of thirty (30) days;

Count VII — Conspiracy to engage im a pattern of

racketeermmg.

Reuben Helfer grew up at 62nd and Drexel at the Chi-

cago Home for Jewish Orphans. (Tr. 1519) After edu-

eating and supperting himself he advanced as a buyer and

manager in retail sales. He came to Springfield in 1961 as

General Manager for Steinberg-Baum store and acted in

that capacity until 1968. At that time he left Springfield

and was employed as a Merchandise Manager for Gold-

blatt’s Department Store and General Store Manager for

Welles Department Store, a buyer for the Trade Mart and

other national chain stores in communities throughout the

United States. In 1972 he returned to Springfield and

obtained his real estate license and associated with Alfred

Ingerson Real Estate. (Tr. 1501) Defendant Helfer ac-

knowledged that he was a habitual gambler throughout

most of his adult life. However, he testified that he had

never operated a card game in his home, never dealt black-

jack professionally and was never employed by anyone

who ran a professional gambling operation. (Tr. 1501-

1504)

The defendant Helfer met the deceased defendant,

Robert Fox, in 1962 and gambled with him during the

period of time that he was in Springfield. After the de-

fendant Helfer separated from his wife in 1973 he moved

6

into the trailer court operated by Fox. Fox and the de-

fendant beeame good friends and defendant Helfer con-

tinued to gamble with Fox at the weekend games in the

basement of Fox’s trailer. In addition to being a realtor,

defendant Helfer worked part-time for the Illinois Police

Federation selling advertisements for their publication.

In February, 1975, defendant, Robert Fox, was critically

ill. Hle was hospitalized on an emergency basis twice dur-

ing the early months of 1975. (Tr. 209-210, 719) Because

of friendship to the now deceased defendant Fox and also

money owed to Fox from gambling losses, defendant Hel-

fer responded to his request to deal blackjack sometime

late in March, 1975. (Tr. 1512-1514) At this time the Fox

" operation was under F.B.I. surveillanee. The massage

parlor incident involving assault of a federal officer oe-

curred in February and bribery of Sheriff Martin Gut-

schenritter also occurred in February, before Special

Agent Salmieri began gambling in the Fox basement. (Tr.

210, 404-407)

Agent Salmieri first gambled in the Fox basement on

February 22, 1975. The defendants Nerone and Caples

dealt blackjack. (TR. 248-251) Agent Salmieri returned

to the Fox basement on March 9th and defendant Caples

dealt blackjack. (Tr. 256) The third weekend that Agent

Salmieri gambled at the Fox basement was March 23rd;

for the first time he met and identified the defendant,

Reuben Helfer.

CROSS EXAMINATION

‘*By Mr. Londrigan:

(Q. Mr. Salmieri, I represent Mr. Helfer. I am

not going to go over with you a lot of material that

has been covered as far as the massage parlor incident

is concerned, except with reference to Various points

in time that you gave testimony about on direct.

7

Would you tell me again the date of your first

visit to the trailer basement that you have referred

to as ‘the casino’?

A. The first day I was at the trailer park?

Q. Yes.

A. That was February 13, ’75

Q. Did you see Mr. Helfer on the premises?

A. No, sir, I did not.

Q. Could he have been there as a participant or

gambler, such as some of the other people that you

have named at the time? I believe you mentioned Mr.

Brown.

A. No, sir. The first time this was the day of the

health spa incident and it was no gambling going on.

When is the next time that you returned?

February 22.

Was Mr. Helfer on the premises at that time?

I did not see him.

rope

Q. When is the next time that you returned to the

premises?

A. I went back there March the 9th.

Q. And that was your third visit, but your second

visit for the purpose of gambling with oflicially ad-

vanced funds; is that correct?

A. That is correct.

(). And at that time did you see Mr. Helfer on

the premises?

A. No, sir, I did not.

Q. How many people were on the premises?

8

A. I’d say there were probably about between

twenty-five, thirty-five people.

Q. Well, when is the first time then that you noticed

that Mr. Ilelfer was on the premises?

A. March the 23rd.

Q. And the two prior times that you went there

to gamble were March the 9th and February the 22nd?

A. That’s correct.

(). When did all of this business down at the mas-

sage parlor occur as far as dates are concerned?

A. February 13.

Q). That’s prior to the two times that you went

there.

A. That’s correct. (Tr. 352-356)

When the federal agents raided the gambling operation

the defendant Helfer was at home asleep. (Tr. 1516):

Prior to the return of this indictment the defendant Helfer

had never been charged with a crime. His reputation as

an honest and law-abiding citizen was good (Tr. 1451-

1456)

The defendant was found guilty under Count I ‘‘gam-

bling’? and Count VII ‘‘conspiracy to racketeer.’’ The

defendant was sentenced to pay a $1,000.00 fine for gam-

bling under Count I and given 5 years probation under

Count VII for ‘conspiring to racketeer.’’ The defendant’s

conviction under Count VII was reversed by the Seventh

Cireuit Court of Appeals; however, his conviction under

Count I was affirmed.

ARGUMENT

Count VII (Conspiracy) seriously prejudiced the de-

fendant Helfer, and denied him a fair trial on Count I

(Illegal gambling).

‘““. . . we must agree that the Government has not

proved either substantive or conspiracy charges under

§ 1962.’’ (Opinion, p. 33)

Defendant Helfer was named only in Count I (illegal

gambling) and Count VII (conspiracy to racketeer). The

racketeering activity included armed assault of a federal

officer, extortion, bribery and bookmaking as realleged in

other counts of the indictment. Defendant Helfer was not

alleged to have participated in these serious offenses,

except under the agency theory embodied in the conspiracy

count. The Government imputed the violent and illegal

actions of co-defendants to defendant Helfer solely by

virtue of the conspiracy count.' To hold that this is not

prejudicial after the jury found all defendants guilty

under the conspiracy count is a gross miscarriage of

justice.

Defendant Helfer repeatedly pointed out to the trial

court the difficulty in obtaining a fair trial if not granted

a severance. The severance was denied because the Gov-

ernment successfully argued Helfer was a co-conspirator!

This Court has clearly stated that where guilt by associa-

tion is the result of a mass conspiracy trial, a defendant’s

basie right to a fair trial is infringed.

1. Defendant Helfer was alleged to have dealt blackjack in the

“casino” operation on three (3) separaie occasions beginning in March

of 1975. This was as a favor to Robert Fox and to replace defendant

Caples. The other substantive offenses of bribery, extortion and assault

were concluded in January and February of 1975. The Government did

not contend that defendant Helfer had knowledge of the facts of these

offenses.

10

‘* . . There are times when of necessity, because of

the nature and seope of the particular federation,

large numbers of persons taking part must be tried

together or perhaps not at all, at any rate as respects

some, When many conspire, they invite mass trial by

their conduct? Even so, the proceedings are excep-

tional to our tradition and call for use of every safe-

guard to individualize each defendant in his relation

to the mass. Wholly different is it with those who join

together with only a few, though many others may

he doing the same and though some of them may line

up with more than one group.

‘*Criminal they may be, but it is not the criminality

of mass conspiracy, They do not invite mass trial by

their conduct. Nor does our system tolerate it. That

way lies the drift toward totalitarian institutions, True,

this may be inconvenient for prosecution, But our

Government is not one of mere convenience or effi-

ciency. It too has a stake, with every citizen, in

his being afforded our historie individual protec-

tions, including those surrounding criminal trials.

About them we dare not become careless or complacent

when that fashion has become rampant over the earth,

‘Tere toleration went too far, We do not think that

either Congress, when it enacted § 269, or this Court,

when deciding the Berger Case, intended to authorize

the Government to string together, for common trial,

cight or more separate and distinct crimes, conspiracies

related in kind thought they might be, when the only

nexus among them lies in the fact that one man par-

ticipated in all, Leeway there must be for such cases

as the Berger situation and for others where proof

may not accord with exact specifications in indictments,

Otherwise criminal conspirators never could be brought

to halt. But if the p‘actice here followed were to

a

11

stand, we see nothing to prevent its extension to a

dozen, a score, or more conspiracies and at the same

time to scores of men involved, if at all, only separately

in them, The dangers of transference of guilt from one

to another across the line separating conspiracies, sub-

consciously or otherwise, are so great that no one really

can say prejudice to substantial right has not taken

place. Section 269 had no purpose to go so far, The

line must be drawn somewhere, Whether or not Berger

marks the limit, for this sort of error and case, we are

clear that it must lie somewhere between that case and

this one.

*. o .

‘*With all deference we disagree with that conelu-

sion and with the ruling that the permeating error did

not affect ‘the substantial rights of the parties.’ That

right, in each instance, was the right not to be tried

en masse for the conglomeration of distinct and sep-

arate offenses committed by others as shown by this

record,

‘*It may be, as the Court of Appeals found, that the

evidence concerning each petitioner was so clear that

conviction would have been dictated and reversal for-

bidden, if it had been presented in separate trials for

each offense or in one or more substantially similar

to the Berger trial in the number of conspiracies and

conspirators involved, But whether so or not is neither

our problem nor that of the Court of Appeals for this

case, That conviction would, or might probably, have

resulted in a properly conducted trial is not the

criterion of § 269, We think it highly probable that

the error or influence in determining the jury’s ver-

dict.’’ Kotteakos v, United States, 328 U.S. 750, 66

S. Ct. 1239, 90 L. Ed. 1557, 1571, 1572 (1945)

In a strikingly similar case the Ninth Cireuit Court

of Appeals held that a marginal defendant was indeed

prejudiced where a conspiracy count used to link together

co-defendants was dismissed,

2. Since there was no conspiracy “to racketeer” in the case at bar,

there is no invitation to a mass trial which prejudiced defendant Helfer's

right to a fair trial,

12

‘*In the case before us the government’s case in

chief covered more than 2,300 pages of transcript.

Less than 50 pages were relevant to Donaway. Most

of the rest dealt with the other defendants and trans-

actions involving the handling and ‘doping’ of horses,

with which Donaway had no connection, During the

trial, the trial judge was temporarily disabled and

had to be replaced by another to whom the dangers

of joinder might not have been apparent. While he

was not necessarily required to grant a severence after

dismissing the conspiracy count, Schaffer v, United

States, 362 U.S, 511, 80 S.Ct. 945, 4 L.Ed. 921 (1960),

we find it impossible to conclude on the facts here

that appellant was not severely prejudiced by the evi-

dence relevant only to the co-defendants. Despite the

trial judge’s sincere effort to keep the jury aware of

the limitations in the admissibility of evidence, we

hold that the failure to sever as to appellant was an

abuse of diseretion in violation of Rule 14, Fed.R.Crim.

Proe.’’ United States v. Donaway, 447 F, 2d 940, 943

(9th Cir, 1971)

In this case there was no ‘‘sincere effort’’ by the trial

judge to prevent improper evidence from being considered

against defendant Helfer. Instead, the jury was instructed

that:

(1) each co-conspirator is responsible for the acts of

the other;

(2) that it could consider hearsay information;

(3) that it could consider ‘‘bookmaking’’ under Count

I, although only alleged against other co-defendants in

separate counts; (Govt. Instructions Nos, 8, 16, 33, 34, 37).

A.

“OTHER CRIMES’’

The defendant Helfer repeatedly pointed out the ob-

vious prejudice of being accused of crimes such as bribery,

13

assault and extortion where he had no knowledge of these

offenses.

“MOTION FOR SEVERANCE

° 7 7

‘1. That joining the Defendant, Reubin Helfer, will

greatly prejudice him in that:

‘*3. That most of the proof will relate to conduct

and issues not relevant to charges against the Defen-

dant, Reubin Helfer.

‘4. That the complexity of the proof in this case

and the disproportionate proof which will be offered

between Reubin Helfer and some or all of the Co-De-

fendants will make it impossible for the jury to keep

separate the evidence relevant to each Defendant and

render a fair and impartial verdict as to the Defendant,

Reubin Helfer.’’ (R. 139-140)

Defendant Helfer made more clear the obvious prejudice

to him as a peripheral defendant in his memorandum in

‘ support of his motion filed in the trial court.

“MEMORANDUM IN SUPPORT OF DEFENDANT

HELFER’S MOTION FOR SEVERANCE

7 . .

‘Tf the Defendant is tried along with the other De-

fendants in this case under all the counts set out in

the present indictment, there is a substantial risk of

prejudice...

* * .

‘*Paragraphs 2, 3 and 4 of the Defendant’s Motion

are interrelated. The Defendant Helfer is charged with

comparatively minor participation in the crimes (mis-

demeanors under state statutes) alleged in Counts I

and VII, yet he will be tried by a jury exposed to evi-

dence on seven criminal counts relating to thirteen

Defendants, involving offenses as serious as bribery

14

and assaulting a federal officer. Further compounding

the prejudicial effect is the disparity in the seriousness

of the offenses and the evidence to be presented by

the prosecution. The cumulative effect of this material

will be to confuse the jury and create a bias against

all of the Defendants.’’ (R. 167, 168-169)’

The Government contended that four separate con-

spiracies can be alleged and that anyone that participates

in one of the alleged activities is responsible for all erim-

inal activity even though unknown to him. Consider the

Government’s rationale:

‘Appellants Bradley, Caples, Jamerson and Helfer

were charged in the conspiracy count (Count VIT) and

only one substantive count (Count I), ... These appel-

lunts contend (Bradley Br. 16-18; Helfer Br, 36-42:

Vieth Br, 13-16; Greco Br, 14-19) that they should

have been tried separately.

‘‘Moreover, although this was not a simple case,

it was hardly too complicated for the jury to compre-

hend. The overwhelming bulk of the government’s

evidence at trial fit into four well defined categories:

(1) evidence pertaining to the casino operation; (2)

evidence relating the bookmaking operation; (3) evi-

dence of the bribery of Sheriff Gutschenritter, and

(4) evidence of the assault upon Agent Salmieri at the

health spa. The jurors could reasonably be expected

to keep these four aspects of the conspiracy separate

in their minds and, as to each defendant, to consider

the evidence presented only insofar as it had a bear-

ing upon his guilt.’’ (Govt. Brief, pp. 22, 24) (Em-

phasis added)

Three of these four ‘‘well defined categories’? had nothing

to do with defendant Helfer except by virtue of the con-

spiracy count. (Count VII)

3. Defendant Helfer renewed this Motion for Severance after opening

statements during trial.

15

It is interesting to observe that no cautionary instruc-

tions were given to protect the obvious prejudice en-

gendered by Count V1l. The Government informed the

trial court that ‘‘cautionary instructions’’ would protect

defendant Helfer against any prejudice.

‘*Since Helfer has failed to carry his burden of

demonstrating that there is a likelihood of prejudice

Which cannot be avoided by cautionary instructions

and which is so strong as to outweigh the benelits

afforded to efficient judicial administration by a single

trial, United States v. Garrison, 348 F.Supp. 1112,

1124 (B.D.La, 1972), his motion is without merit.

The United States respectfully submits therefore, that

Helfer’s motion should be denied.’’? (Govt, Response

to the Defendant Llelfer’s Motion for Severance, R.

158-159)

The Government’s trial brief disclosed that the bribery

and extortion charges against defendant Fox, now de-

ceased, were introduced to impute this serious and in-

flamatory criminal conduct to all co-conspirators named

under Count VII,

‘It is anticipated that during the presentation of

the government’s evidence in chief there will be evi-

dence relating to statements made by the defendant

Robert Charles Fox which details the pertinent erimi-

nal activities of some of the co-defendants, These

statements were made to Sheriff Gutschenritter, Lt is

clear that the meetings with Gutsehenritter were held

during the course of and in furtherance of the con-

spiracvy. Since lox by disclosing this evidence hoped

to remain on Gutschenritter’s good side, for the bene-

fit of the conspiracy and to protect its operation, the

statements made regarding criminal activities of his

associates are admissible against all other co-con-

spirators once there is proof aliunde of that particu-

lar co-conspirator’s membership in the conspiracy.’’

(R. 355-356)

16

In fact the Government’s proof and its theory was adopted

in the court’s instructions. Defendant Helfer thereby be-

came part of a conspiracy to racketeer merely by agreeing

to participate in ‘‘easino’’ gambling.

Severance of Count I and Count VII may be argued

to be ‘*diseretionary’’ under Rule 14. However, if Count

VII did not state an offense, severance from the unrelated

charges was mandatory. The defendants named only in

Count I (gambling) were entitled to a fair trial under the

charges brought under that count and not required to

stand to answer for other serious felonies committed by

» dead man and other eo-defendants, United States v.

Levine, 546 F. 2d 658 (Sth Cir, 1977); United States v.

Whitehead, 5389 F, 2d 1023 (4th Cir. 1976).

In a most recent case, the Court of Appeals for the

District of Columbia emphasized the inherent prejudice

of imputing other more serious crimes to a defendant

named as a co-conspirator.

‘Particularly where there is great disparity in the

weight of the evidence, strongly establishing the guilt

of some defendants, the danger persists that the guilt

will improperly ‘rub off’ on the others. United States

v, Kelly, 349 F.2d 720, 756-759 (2d Cir, 1965), cert.

denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544

(1966). In Kelly the Court of Appeals for the Second

Circuit emphasized that severance is among the most

important safeguards available to minimize the risk

of prejudice, and it ordered a new separate trial for

the one alleged co-conspirator who was disadvantaged

by the disproportion in the evidence, Id. at 756. See

United States v, Donaway, 447 F, 2d 940, 943 (9th

Cir. 1971). This court has often expressed its ac-

ceptance of the rule announced in Kelly, requiring

severance when the evidence against one or more de-

fendants is ‘far more damaging’ than the evidence

avainst the moving party, United States v. Bolden, 169

17

U.S.App.D.C. 60, 69, 514 F.2d 1301, 1310 (1975) ; United

States v. Leonard, supra, 160 U.S.App.D.C. at 47,

494 F.2d at 966; United States v. Gambrill, supra, 142

U.S.App.D.C. at 83, 86, 449 F.2d at 1159, 1162: McHale

v. United States, 130 U.S.App.D.C. 163, 164, 398 F.2d

757, 758, cert. denied, 393 U.S. 985, 89 S.Ct. 462, 21

L.Ed.2d 447 (1968).’’ United States v. Mardian, 546

F. 2d 973, 977 (U.S.App.D.C., 1976)

The Kelly case referred to in Mardian was heavily relied

upon by the defendant Helfer in the trial court and upon

review in the Seventh Cireuit Court of Appeals. In

Mardian, the conspiracy was acknowledged to be a proper

charge. In this ease there was no basis to charge Helfer

with anything except illegal gambling. He should not have

been tried with other co-defendants alleged to have com-

mitted serious forcible felonies. Nor should the jury

have been instructed that he could be held accountable for

the conduct of other named defendants. Particularly when

these crimes were committed long before defendant Helfer

was even alleged to have first participated in the ‘‘casino’’

gambling.

B.

“BOOKMAKING”’

‘*There was ample evidence for the jury to conclude

that what was involved here was a gambling casino

which operated substantially continuously by virtue

of being open for business almost every weekend with

consistent regularity. We do not read the Congressional

intent as requiring proof of an operation occurring

substantially around-the-clock but rather one that was

operated upon a schedule of regularity sufficient to

take it out of the casual non-business category. The

proof here met the test.

‘‘We further agree that Helfer’s allegation that the

Government used the bookmaking activity as a means

of meeting the requirements of the statute is without

18

substance. The evidence of continuity in Fox’s casino

operation needed no assistance but was self-sufficient

for the purpose. As to the claimed instruction error,

the court’s definition of gambling as including ‘book-

making’ merely set forth a portion of the statutory

language. See Appendix. We do not interpret the in-

struction as directing the jury to consider that particu-

lar form of illegal gambling in determing the substan-

tial continuity of the casino operation. Indeed, a

distinct instruction expressly left for the jury’s de-

termination that significant factual question. Helfer’s

argument that the instruction improperly bolstered the

assertion of federal jurisdiction accordingly must be

rejected. We affirm his conviction on Count I.’’ (Court’s

Opinion, pp. 11-12) (Mmphasis added)

This Court’s opinion acknowledged that ‘‘substantially

continuous’’ operation was a proper question of fact to

be presented to the jury under proper instruction. Assum-

ing that there was sufficient evidence to present to a jury

under the faets recited in this Court’s opinion; a jury

could acquit as well as convict under the evidence pre-

sented. In testimony before Congress concerning the

Thirty (30) day period required, or the $2,000.00 in one

day required, Henry Petersen, Deputy Assistant Attorney

General, made the following comments (Senate Hearings,

Page 399-400) :

‘‘Senator Hruska. Do you feel that the proof of

the size and duration of a gambling operation as it

is defined in 8. 2022 would be as difficult to establish

as proof of an interstate ‘“‘link’’? in that type of

operation?

Mr. Petersen. No; I don’t think so. With respect to

proof of duration, conceivably that could be very diffi-

cult, 30 days’ proof, every day for a 30-day period

might be very difficult. (emphasis supplied)

Even gamblers take a day off occasionally. But the

19

$2,000 in any given day, based on our experience, we

think we can prove.

If we can’t establish $2,000 it is obviously not a

Federal case. We ought not to be involved in it. (em-

phasis supplied)

Most of these instances, given probable cause to

raid a gambling establishment which we have been

able to observe, we know it has been operating for

4 or 5 days a week, seizing the records that exist, we

have been able to come up with better than $2,000 a

day in most all of our cases.’’

It is obvious from Mr. Petersen’s ‘testimony that the

intention of the Department of Justice in recommending

Section 1955, and the intention of Congress in adopting

it, was to bring only those gambling businesses operating

4 or 5 days a week or 50 to 75% of the time, within the

scope of See. 1955. In the instant case the evidence created

a time frame (2 days a week) of operation or approxi-

mately 1% of the minimum time (4 to 5 days) suggested by

Mr. Petersen. To meet the Thirty (80) day requirement

the government merely expanded the period of investiga-

tion to an Eight (8) month period.

To carry the point further to its point of total illogie,

if Two (2) days a week over an Eight (8) month period

of time (64 days) is sufficient to make up the Thirty (30)

days, would it not be possible for the government to frame

an indictment based upon one day a week, or 52 days a

year, to meet the 30 day requirement. By extension, such

a theory would permit, the equation to be extended ad

infinitum et ad nauseam.

The jury should have been instructed that it should not

take into account the bookmaking activities of Defendants

Fox, Nerone and Seppi. There is no dispute that the evi-

dence showed a continuous day to day bookmaking opera-

20

tion. This was not charged in Count I and was highly

prejudicial to defendant Helfer. The opinion of the Sev-

enth Cireuit does not address itself to the obvious preju-

dice of attributing to defendant Helfer illegal activity for

which he was not charged and summarily dismisses the

issue of variance and sufficiency of proof under Count I.

CONCLUSION

Contemporaneously with the decision of the Seventh

Circuit, the Fifth Cireuit Court of Appeals has decided

severance is mandatory where an ‘‘ubiquitous’’ conspiracy

charge is used to link together unrelated offenses.

‘‘Counts II, III, [VY, and V could not have been

charged in a single indictment, however, because the

requisite substantial identity of facts or participants

necessary for proper rule 8(b) joinder would no longer

be present. The sole connection between the offenses

charged in Count II and III and the offenses charged

in Counts IV and V are: (1) their mutual identity

and (2) the presence of Harvard, Remy, and Picto-

graph. Otherwise Counts II and III on the one hand

and Counts IV and V on the other arise from different

factual matrices, implicating different defendants at

different times. United States v. Gentile, 495 F.2d at

630-31; Compare United States v. Strand, 517 F.2d

711, 713-14 (5th Cir.), cert. denied, 423 U.S. 998, 96

S.Ct. 428, 46 L.Ed.2d 373 (1975), with United States

v. Marionneaux, 514 F.2d at 1248-49.

‘‘When unrelated transactions involving several de-

fendants are joined together, ‘[i]t cannot be said...

that all the defendants [would not be] ... embarrassed

and prejudiced in their defense, or that the attention

of the jury may not have been distracted to their

injury in passing upon the distinct and independent

transactions.’ United States v. Bova, 493 F.2d 36, quot-

ing McElroy v. United States, 164 U.S. 76, 81, 17 S.Ct.

31, 33 41 L.Ed. 355 (1896). Especially when, as here,

21

the nexus between the separate groups is the defen-

dants common to each and a mutual identity of the

counts charged, the transference of guilt from one

group of defendants to the other is inexorable. The

result is an inherent prejudice that no form of limiting

instructions or cautionary charge could absolve, and

joinder of the four counts would be improper. Indeed,

the government has not attempted to establish that

a bridge sufficient to satisfy rule 8(b) joinder existed

between the defendants who went to trial as the result

of these four counts.

‘*Rather, the government relies on Count I, contain-

ing a ubiquitous conspiracy charge, to provide a com-

mon link between these otherwise unrelated transac-

tions and to demonstrate the existence of a common

scheme or plan among the several defendants. See

United States v. Banks, 465 F.2d 1225, 1242-43 (5th

Cir.), cert. denied, 409 U.S. 1962, 98 S.Ct. 568, 34 L.Ed.

2d 514 (1972) ...’’ United States v. Leinve, 546 F.2d

658, 662-663 (5th Cir. 1977)

Had the Government not alleged a conspiracy in Count

VII, defendant would have been entitled to a mandatory

severance under Rule 8.

The disparity between the bribery, extortion and assault

charges’ is apparent from the sentences imposed. Defen-

dant Helfer was fined $1,000.00. Defendants, under the

other substantive counts, were given up to six (6) year

sentences in the federal penitentiary. However, defendant

Helfer has been charged and convicted of a federal felony.

If any citizen is convicted of a federal felony, it should be

based upon his own wrongdoing rather than the conduct

of co-defendants charged with separate offenses. Defen-

dant Helfer is entitled to a new trial on due process

grounds because of the inherent prejudice of improper

joinder compounded by the absence of proper protective

instructions to the jury.

22

To prevent a grave miscarriage of justice in this case

and to prevent further abuse of the conspiracy doctrine

in future cases, defendant Helfer prays that this Court

grant his petition and issue a writ of certiorari to the

Seventh Circuit Court of Appeals.

Respectfully submitted,

LONDRIGAN & POTTER, P.c.

By: THOMAS F. LONDRIGAN

1227 South Seventh Street

P.O. Box 399

Springfield, Ilinolis 62706

Attorneys for Defendant-Appellant,

Reuben Helfer.

23

APPENDIX

Applicable Federal Statutes:

“*§ 1955. Prohibition of illegal gambling business

(a) Whoever conducts, finances, manages, supervises,

directs, or owns all or part of an illegal gambling business

shall be fined not more than $20,000 or imprisoned not

more than five years, or both.

(b) As used in this section —

(1) ‘illegal gambling business’ means a gambling

business which —

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

subdivision in which it is conducted;

(ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own all or part

of such business; and

(iii) has been or remains in substantially continu-

ous operation for a period in excess of thirty days or

has a gross revenue of $2,000 in any single day.

(2) ‘gambling’ includes but is not limited to pool-

selling, bookmaking, maintaining slot m_hines, roulette

wheels or dice tables and conducting lotteries, policy,

bolita or numbers games, or selling chances therein. .. .’’

Title 18, § 1955, U.S.C.

**§ 1961. Definitions

As used in this chapter —

(1) ‘* ‘Racketeering activity’ means (a) any act or

threat involving murder, kidnapping, gambling, arson, rob-

bery, bribery, extortion, or dealing in narcotic or other

dangerous drugs, which is chargeable under State law and

punishable by imprisonment for more than one year;

24

(b) any act which is indictable under any of the following

provisions of title 18, United States Code: Section 201

(relating to bribery), section 224 (relating to sports

bribery), sections 471, 472 and 473 (relating to counter-

feiting), section 659 (relating to theft from interstate

shipment if the act indictable under section 659 is feloni-

ous, section 664 (relating to embezzlement from pension

and welfare funds), sections 891-894 (relating to extor-

tionate credit transactions), section 1084 (relating to the

transmission of gambling information), section 1341 (re-

lating to mail fraud), section 1343 (relating to wire fraud),

section 1503 (relating to obstruction of justice), section

1510 (relating to obstruction of criminal investigations),

section 1951 (relating to interference with commerce, rob-

bery, or extortion), section 1952 (relating to racketeer-

ing), section 1953 (relating to interstate transportation

of wagering paraphernalia), section 1954 (relating to un-

lawful welfare fund payments), section 1955 (relating to

the prohibition of illegal gambling businesses) .. .

(5) ‘pattern of racketeering activity’ requires at least

two acts of racketeering activity, one of which occurred

after the effective date of this chapter and the last of

which occurred within ten years (excluding any period of

imprisonment) after the commission of a prior act of

racketeering activity; ...’’ Title 18, § 1961 (1), (5)

‘*§ 1962. Prohibited activities

(a) It shall be unlawful for any person who has re-

ceived any income derived, directly or indirectly, from a

pattern of racketeering activity or through collection of

an unlawful debt in which such person has participated as

a principal within the meaning of section 2, title 18, Uni-

ted States Code, to use or invest, directly or indirectly,

any part of such income, or the proceeds of such income,

25

in acquisition of any interested in, or the establishment

or operation of, any enterprise which is engaged in or the

activities of which affect, interstate or foreign commerce.

A purchase of securities on the open market for purposes

of investment, and without the intention of controlling or

participating in the control of the issuer, or of assisting

another to do so, shall not be unlawful under this sub-

section if the securities of the issuer held by the pur-

chaser, the members of his immediate family, and his or

their accomplices in any pattern or racketeering activity

of the collection of an unlawful debt after such purchase

do not amount in the aggregate to one percent of the

outstanding securities of any one class, and do not confer,

either in law or in fact, the power to elect one or more

directors of the issuer.

(b) It shall be unlawful for any person through a

pattern of racketeering activity or through collection of

an unlawful debt to acquire or maintain, directly or in-

directly, any interest in or control of any enterprise which

is engaged in, or the activities of which affect, interstate

or foreign commerce.

(c) It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or the ac-

tivities of which affect, interstate or foreign commerce,

to conduct or participate, directly or indirectly, in the

conduct of such enterprises’s affairs through a pattern of

racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to

violate any of the provisions of subsections (a), (b), or

(c) of this section’’ Title 18, § 1962, U.S.C.

26

Rule 8 — Federal Rules of Criminal Procedure

“JOINDER OF OFFENSES AND OF DEFEN-

DANTS

(a) Joinder of Offenses. Two or more offenses may be

charged in the same indictment or information in a sep-

arate count for each offense if the offenses charged,

whether felonies or misdemeanors or both, are of the

same or similar character or are based on the same act or

transaction or on two or more acts or transactions con-

nected together or constituting parts of a common scheme

or plan.

(b) Joinder of Defendants. Two or more defendants

may be charged in the same indictment or information if

they are alleged to have participated in the same act or

transaction or in the same series of acts or transactions

constituting an offense or offenses. Such defendants may

ve charged in one or more counts together or separate and

all of the defendants need not be charged in each count.’’

Rule 14— Federal Rules of Crimimal Procedure

“RELIEF FROM PREJUDICIAL JOINDER

If it appears that a defendant or the government is prej-

udiced by a joinder of offenses or of defendants in an in-

dictment or information or by such joinder for trial to-

gether, the court may order an election or separate trials

of counts, grant a severance of defendants or provide

whatever other relief justice requires. In ruling on a

motion by a defendant for severance the court may order

the attorney for the government to deliver to the court

for inspection in camera any statements or confessions

made by the defendants which the government intends to

introduce in evidence at the trial. As amended Feb. 28,

1966, eff. July 1, 1966.’’

In the

Anited States Court of Cppeals

SF or the Seventh Circuit

Fey gn

eee

Nos. 76-2181 through 76-2189 1227580. 7th

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

.

JOHN J. NERONE, a/k/a “J.J.,” VicTOR JOSEPH SEPPI,

a/k/a “Vic,” MARVIN MARTIN HORNSTEIN, a/k/a

“PETE,” LEONARD VIETH, ARTHUR GENTRY, DONALD

LEE HORNSTEIN, DONALD K. BRADLEY, a/k/a “Moose,”

WILBUR Y. CAPLES, a/k/a “BUTCH,” LAVERNE JAMER-

SON, REUBIN HELFER, LARRON JOE SCHELLINGER,

a/k/a “Jo-Jo,” and DOMINIC JOSEPH GRECO, SR.,

Defendants-A ppellants.

Appeal from the United District Court for the

Southern District of Illinois, Springfield Division.

No. S-CR-75-683 —Robert D. Morgan, Judge.

ARGUED JUNE 15, 1977--DEcIDED SEPTEMBER 29, 1977

_— FAIRCHILD, Chief Judge, PELL, and BAUER, Cir-

cuit Judges.

PELL, Circuit Judge. On September 24, 1975, a seven-

count indictment was returned in the Southern District

2 Nos. 76-2181 through 76-2189

of Iilinois, charging thirteen' individuals with violations

of the federal statutes relating to illegal gambling and

racketeering. The twelve appellants have filed timely

notices of appeal from final fragments of convictions on

Counts I, tL. III, VI and VII of the indictment. These

consolidated appeals present for review approximately

fourteen issues, demonstrating once again the direct

relationship between the proliferation of parties and

issues in a conspiracy case.

The factual and procedural context of these appeals is

both complicated and subtle. No useful purpose will be

served by setting forth factual details which are

germane only to issues which our disposition of the case

eliminates from formal consideration. Accordingly, this

opinion will refer only to those facts pertinent to our

adjudication of the case.

Additionaliy, we must note that the Government and

several appellants have interpreted the conspiracy count

of the indictment as charging an offense which in its

literal language it does not clearly state. Our summation

of the indictment will set forth the theory of the indict-

ment advanced by the Government, but in a subsequent

part of the opinion we will discuss more fully the legal

problems engendered by the parties’ confusion regard-

ing the criminal charge actually made in that con-

spiracy count.

We turn to the indictment. Count I charged that from

approximately September 1, 1974, to May 19, 1975,

appellants enh Seppi, Marvin “Pete” Hornstein,

Gentry, Donald Hornstein, Bradley, Caples, Jamerson,

and Telfer had participated in the operation of an

illegal gambling business in violation of 18 U.S.C.

' Robert Charles Fox, the proprietor of the gambling

business pee involved in these charges, was named as

a defendant in each of the seven counts of the indictment. He

died prior to trial, however, and the court subsequently

entered an order dismissing all counts of the indictment as to

him. Fox was tie only named defendant in Counts IV and V.

The former changed that Fox had stolen a .38 caliber

automatic pistol which was the property of the United States,

and the latter charged that Fox had advised a grand jury

witness to give false testimony.

Nos. 76-2181 through 76-2189 3

oe Count II charged that appellants Seppi, Vieth,

entry, Schellinger, and both Hornsteins had partici-

pated in the use of extortionate means to collect a

gambling debt in violation of 18 U.S.C. § 894. Count III

charged that Marvin “Pete” Hornstein had used a

deadly weapon in a forcible assault upon a federal law

enforcement officer engaged in the performance of his

duties, in violation of 18 U.S.C. §§ 111 and 1114. Count

VI charged that appellants Nerone and Seppi had

conducted the affairs of Maple Manor, Inc., doing

business as Cottonwood Cove Estates Mobile Home

Park, an enterprise engaged in and the activities of

which affected interstate commerce, through a pattern

of racketeering activity and/or through collection of an

unlawful debt, in violation of, inter alia, 18 U.S.C.

§ 1962(c). Finally, as stated in the Government's brief to

this court, Count VII charged all of the appellants with

conspiracy to conduct the affairs of Maple Manor, Inc.,

an enterprise affecting interstate commerce through a

Preoraye racketeering activity in violation of 18 U.S.C.

).

Testimony adduced at trial revealed that Robert Fox

had conducted a weekend “casino gambling operation”

involving dice and card games in the basement of his

modular home. This particular mobile home was located

cn Lot 2 of the Cottonwood Cove Estates Mubile Home

Park, which was operated by Maple Manor, Inc. The

resident and n.ajor stockholder of the corporation was

lanche Fox, mother of Robert Fox. The secretary of

the corporation was A n> Seppi. The board of

directors was composed of Blanche Fox, Seppi, and

* For the text of this statute and those forming the basis of

the other counts in the indictment, see the Appendix infra.

* Under such cases as United States v. Brown, 555 F.2d 407,

415-16 (5th Cir. 1977); United States v. Altese, 542 F.2d 104

(2d Cir. 1976), cert. denied sub nom. Napoli v. United States,

429 U.S. 1039 (1977); and United States v. Cappetto, 502 F.2d

1351, 1358 (7th Cir. 1974), cert. denied, 420 U.S. 925 (1975),

Count VII could be read as charging that the casino gambling

operation which Fox operated in the basement of his modular

home was the “enterprise” whose affairs the appellants had

conspired to conduct through a pattern of racketeering

—- This reading of Count VII, in our opinion, is the more

natural.

4 Nos. 76-2181 through 76-2189

Nerone. Appellant Nerone had signed a form purchase

agreement on April 21, 1973, for a three-bedroom

Regent mobile home, manufactured in Indiana, from

Mobile World, Inc., whose offices were located in

Springfield. The purchase agreement bore the notation

“For Resale,” set forth a tax and a dealer number, and

indicated that Nerone had executed the agreement on

behalf of Maple Mobile Home Sales. Cash payment of

the total sum mentioned in the purchase agreement was

made two days later, and the Regent mobile home

resumably was placed on Lot 88 of Cottonwood Cove.

ene other residents of Cottonwood Cove had likewise

purchased mobile homes manufactured in states other

than Illinois.

The trial testimony established that the weekend dice

and card games conducted in Fox’s basement were

conducted, with three ——— every Saturday and

Sunday from early September 1974 to May 1975. The

gambling in Fox’s basement was discontinued in May

1975 because the Fox home was under surveillance by

local law enforcement officials. Appellants Donald and

Marvin Hornstein conducted a weekend card and dice

mbling operation under the name “Where Else” at the

— otel at Fifth and Jefferson on two weekends in

May 1975. It was raided on May 19, 1975. The

appellants admitted at trial that the weekend games

were illegal under Illinc.. law.

The testimony of Government witnesses also estab-

lished that from September 1974 to May 1975 appellants

Nerone and Seppi worked in Fox’s basement dealin

blackjack, running the dice game, and collecting an

paying out money. Appellant Jamerson throughout this

period also assisted the operation of the games by

working at the dice game and by running errands.

Appellant Bradley ran the dice game for most of the

time when Fox’s casino operation was functioning, and

appellants Caples and Helfer each dealt blackjack and

played poker for a few months while the illegal

gambling was in operation. Appellant Gentry never

gambled or operated any games in Fox’s basement but

did on two or three occasions open an inside door in

Fox’s basement in order to let people enter. Appellants

Donald and Marvin Hornstein were not shown to have

Nos. 76-2181 through 76-2189 5

been actively involved in the casino when it was

operated at Fox’s basement, but there was circumstan-

tial evidence, discussed hereinafter, which the Govern-

ment utilized to support its theory that the “Where Else”

gambling enterprise actually operated as an integral

part of the Fox casino.

Law enforcement officers began investigating Fox’s

— operation in late 1974, and by — 1975

teven Salmieri, a special agent of the Federa! Bureau

of Investigation (FBI) was working on the investigation.

On February 13, 1975, he met with Donald Nance, who

was to meet with Fox that morning to pay off a four

hundred dollar gambling debt. Fox and Nance had had

several telephone discussions concerning the debt, in one

of which Fox threatened Nance, who thereupon said he

would meet Fox “[a]t the Attorney General’s Office.” At

10:00 a.m. that morning, Salmieri and Nance went to

the latter’s health spa, where they awaited the planned

meeting with Fox.

At approximately 10:15 a.m. Fox, together with the

six men charged in Count II, arrived at the health spa

in two cars. Appellants Schellinger and Seppi, who were

the drivers, remained outside the spa. Fox, the Horn-

steins, Gentry, ard Vieth went inside. Upon entering the

inner room where Salmieri and Nance were waiting,

Fox said, in reference to Nance’s earlier telephonic

comment, “what was all this about the Attorney

General?” Marvin Hornstein then asked Salmieri why

the latter’s hand was in his ket. Hornstein then took

a revolver from his belt and held it close to Salmieri’s

head. Fox threw Salmieri against a wall and “frisked”

him, finding a gun that Agent Salmieri was carrying.

Salmieri and Nance proclaimed that they wanted to pay

Fox. As Salmieri approached a desk drawer, Fox said

that if Salmieri went near the drawer Fox would kill

him. When Salmieri later put his hand in his pee to

get a cigar, Fox said “Put your hands down or I'l] knock

your teeth out.” After Fox swung at Salmieri with a gun

and missed, Marvin Hornstein hit him in the ribs.

Fox inquired as to Salmieri’s identity and the fact

that he was carrying a gun. The agent told Fox that he

was a friend of Nance’s from St. Louis. Fox then told

6 Nos. 76-2181 through 76-2189

Nance to “forget the money.” Except on the occasions

when Salmieri and Nance brought up the subject,

nothing was said during the entire encounter regarding

the collection of the debt. During the entire incident,

none of the appellants asked Nance for any money. On

each occasion that agent Salmieri brought up the topic

of paying the money, those appellants who had come into

the back room responded that the money didn’t make

any difference and that they didn’t want it. Fox then

> Nance that they were going to take Salmieri “for a

ride.

As Salmieri began to walk out of the back room of the

health spa, Fox became excited and shouted, “Shoot

him, shoot him. Leonard [Vieth], grab him.” At that

point the agent was going out the front door and Vieth

was with him. As Salmieri went out, he put his hands

up. Vieth then said, “Come on, we better go back

inside.” Vieth then grabbed the agent by the arm. After

ing back in, the agent was told to spread out on the

oor. Nance and his business partner were also in the

front on the floor. After Fox told them to walk out of the

health spa but before they had a chance to get out, Mar-

vin Hornstein came to the front of the room where

Salmieri remained on the floor, cocked the gun, put it to

the agent’s head, and said he was going to “blast” him.

Salmieri and Nance were then taken outside, but Fox

and his confederates left without them. Salmieri and

Nance then returned to the health spa.

At 11:45 the same morning, Fox telephoned Nance

and apologized for the incident at the health spa. He

asked Nance to come out to the Cottonwood Cove, with

Salmieri, to repay the debt. That afternoon, Nance and

Salmieri visited Fox’s mobile home. Appellants Donald

Hornstein, Nerone, Seppi, Caples, Jamerson, and Gentry

were present. Nance paid Fox, and Fox showed

Salmieri his basement casino and invited him to return

to gamble. When Salmieri requested the return of his

gun, Fox replied that Marvin Hornstein had it and that

they would tr,’ to get it back.

On February 22, 1975, Agent Salmieri arrived at

Cottonwood Cove and went into the recreation hall,

which was adjacent to Fox’s mobile home, where a party

was in progress. There he found Gentry and told him

Nos. 76-2181 through 76-2189 7

that he had come for “a little action.” Gentry, remarking

that “[t]hey’ve got a pretty good game,” took Salmieri

next door to Fox’s mobile home. He knocked on a

basement door containing a two-way mirror, and they

were admitted. Inside Salmieri observed seventy to

but that with approval a player could bet more,

provided he remained at the higher level throughout the

night. Salmieri got into a blackjack game in which

appellart Nerone was the dealer. In the course of the

evening the house took in between four and five

thousand dollars at the blackjack table alone. Salmieri

observed Fox approve loans of up to $700 for customers

at the blackjack table, and cash a four or five hundred

dollar check for another customer. Salmieri also ob-

served appellants Seppi, Caples, Bradley, and Jamerson

working at the dice table. Throughout the night appel-

lant Gentry was “watching” the door.

On March 9, 1975, Agent Salmieri returned to the

casino with John Meduga, an agent of the [Illinois

Bureau of Investigation. They —— for three or four

hours, and during that period Salmieri observed twenty-

five or thirty people in the casino. He also observed Fox

lend five hundred dollars each to one customer who

already owed him $3,000 and to another who was

already $2,000 in debt. In the course of the night Nerone

and Caples dealt at the blackjack table, and Seppi,

Caples, Bradley, and Jamerson ran the dice game. bn

March 23, 1975, Salmieri and Meduga were again in the

casino where they observed Nerone and Helfer dealing

blackjack and Seppi and Bradley operating the dice

table. On this occasion Marvin Hornstein was present in

the basement.

The two agents returned once more to the casino on

April 13, 1975. Appellant Helfer was dealing blackjack

that night, and appellants Seppi and Nerone were

operating the dice table. That evening Salmieri told Fox

that earlier in the day he had wanted to place a bet on a

baseball game but was not able to do so because he did

not know any bookies in town. Fox replied that any time

Saimieri wanted to get any action in, he should let him

know and Fox would cover it. Fox then gave Salmieri a

telephone number for placing bets, but warned him not

x Nos. 76-2181 through 76-2189

to call the number from out of state because he did not

want the FBI to get involved. Testimony of the

Government witness Charles “Burrhead” Albright estab-

lished that Nerone would take line information and

accept bets on the teleplione. Albright was also present

during numerous conversations between appellants

Nerone and Greco regarding line :nformation, and he

had heard Fox instruct Nerone-to “lay-off” bets to Greco.

Several weeks after Fox gave Salmieri the telephone

number. the agent called and asked for Nerone.

Salmieri attempted to place bets on a Spirits basketball

and Cardinal baseball game, but Nerone would not

accept the bets because he did not have “the line” on

those games. However, Salmieri did place a bet on a

National Basketball Association game between Wash-

ington and Buffalo. Nerone also gave Salmieri two

additional telephone numbers.

On the evening of May 11, 1975, Agents Salmieri and

Meduga went os the “Where Else” at the Palmer Hotel.

Initially, they had gone to the recreation hall at

Cottonwood Cove. There, they found a sign which read

“call Bob [Fox] or John |Nerone]” and which listed a

telephone number. Salmieri dialed the number and

reached Nerone, who said “{tJhere’s a little problem in

the area. We have moved to the Palmer Hotel.” At the

hotel, the agents observed Nerone, Sepp), Bradley, and

Donald Hornstein take turns running the dice table.

Appellant Helfer volunteered to start a blackjack game,

fs Marvin Hornstein was acting as a lookout at the

door. The house took in roughly twenty-four hundred

dollars that evening.

On May 17, 1975, there was some form of gambling at

the Cottonwood Cove. Agent Nancy Lewis, working

underground for the Illinois Bureau of Investigation,

had been conducting a surveillance at the Cottonwood

Cove since December 26, 1974. She kept memoranda of

her observations. Her reports indicated that she had

observed thirteen cars at Fox's trailer at 1:40 a.m. on

May 17. Almost five hours later, at 6:05 a.m., she

observed that the cars of six individuals known to her

were parked at Fox’s trailer. On May 18, 1975, law

enforcement officers raided the “Where Else.” Agents

Salmieri and Meduga were present on that evening and

Nos. 76-2181 through 76-2189 9

observed appellants Nerone, Seppi, Bradley, and the two

~~ take turns running the dice table at the

otel.

On the same night that the Palmer Hotel was raided,

FBI agents, acting pursuant to a search warrant, raided

Fox’s mobile home and found bookmaking records in the

lining of one of Fox’s coats. These records pertained to

the same transactions as did gambling papers found on

Nerone in the raid at the hotel. In Fox’s home, the

agents found baseball schedules of a type commonly

distributed by bookmakers to their customers, a “base-

ball calculator” or device similar to a slide rule used by

bookmakers to calculate the amount of payoffs in

baseball parley bets, and dice which had been altered to

increase the likelihood that certain sides would come to

rest face up.

|

The first issue in this case pertains to the jurisdic-

tional basis for Count I. Appellant Helfer argues that

there was no proof that the weekend gambling in the

Fox basement met the jurisdictional requirements of 18

U.S.C. § 1955. Helfer observes that the statute is

directed at syndicated gambling having an effect upon

interstate commerce and the national interest. He

further contends that the gambling reflected in this

record is not the type of gambling which falls within the

purview of the statute and that the facts of this case

illustrate an effort by the Federal Strike Force to create

a federal offense from essentially local gambling acti-

vity. Helfer points to the Government’s use of such

nomenclature as “casino operation” the participants of

which were denominated “employees” as constituting the

substitution of objurgatory terminology for proof. He

further insists that the Government found it necessary to

confuse the long standing and continuous bookmaking of

appellants Nerone and Greco with the games of chance

in which the other nine appellants participated.

Helfer also claims, as a corollary to the jurisdictional

argument, that his conviction on Count | must be

reversed because of variance and erroneous instructions.

Bookmaking was not alleged in Count I. Thus, Helfer

10 Nos. 76-2181 through 76-2189

sets out a straightforward argument invoking the

concept of variance. He submits that the Government

cannot charge ten defendants with games of chance, .e.,

“cards and dice,” and then claim that instead they have

proven bookmaking by two defendants to meet the

statute’s jurisdictional requirements. Helfer asserts that

the Government compensated for an obvious variance

and absence of proof by submitting instructions, given

by the court over the appellants’ objections, which

directed the jury to consider the bookmaking activity to

determine if the games of chance were in substantially

continuous operation for a period in excess of thirty

days.

Putting aside for the moment the question of erro-

neous instructions, the core question as to all appellants

convicted under Count I clearly relates to proof of

“substantially continuous” operation in excess of the

statutory period. On the present record, proof of the

five-man requirement is sufficient to withstand attack.

Reviewing the evidence in the light most favorable to

the Government, we hold that Fox, Nerone, Seppi,

Bradley and Caples were clearly shown to have con-

ducted, ane managed, supervised, directed or

owned al! or part of an illegal gambling business. If the

evidence similarly establishes that the thirty-day re-

quirement was met, the illegal gambling business dis-

closed by this record was subject to federal criminal!

prosecution.

We recognize that Congress “has placed strict limits

on those gambling operations which warrant federal

intervention.” Altese, supra at 109 (Van Graafeiland, J.,

dissenting). Nonetheless, the purpose of § 1955 is to

prohibit illegal gambling of such a size as would affect

interstate commerce. See United States v. Hawes, 529

F.2d 472, 478 (5th Cir. 1976). See also United States v.

McCoy, 539 F.2d 1050 (5th Cir. 1976). Still, the payee

of § 1955 is not to subject almost any small gambling

operation to federal regulation. See United States v.

ridges, 493 F.2d 918, 922 (5th Cir. 1974). We can.

readily agree with the Fifth Circuit that a broad

construction. of § 1955 would not always further the

Congressional purpose, see id., and that “the contours of

federal jurisdiction under § 1955 have not yet been fully

Nos. 76-2181 through 76-2189 11

delineated.” McCoy, supra at 1058. Congress, however,

in final analysis, has made a judgment that gambling

operations involving more than five people and operat-

ing in excess of thirty days affect interstate commerce.

This court has no power to excise as trivial, an

individual instance falling within the defined class

which is within the reach of federal power. Cf.

Maryland v. Wirtz, 392 U.S. 183, 192-93 (1968).

We agree with the Government that the thirty-day

requirement was satisfied in this case. More accurately

stated, we think that there was sufficient evidence from

which the jury could find that the dice and card games

in Fox’s basement were in “substantially continuous”

operation for the statutory period. The evidence showed

that, with but three exceptions, Fox’s casino was in

operation every weekend between the beginning of

September 1974 and early May 1975. The evidence thus

showed an established pattern of operation at least two

days every week for approximately eight months.

Simple arithmetical calculations would support a jury

inference that the games took place on more than thirty

individual calendar days. Moreover, there was testimony

that sometimes gambling commenced on Friday nights

and continued into the succeeding Monday. Larry

Dellomo, a salesman for Mobile World, Inc., testified

that he had participated in gambling at Fox’s basement

approximately fifteen times, usually on Saturday or

Sunday nights, during the period charged in the

indictment. William Roscetti, a dentist, also testified

that he had gambled in Fox’s basement from five to

eight times during the same period.

_ The appellants do not appear to controvert the

inference that gambling occurred on more than thirty

separate calendar days. Their argument touches instead

on the requirement of continuity. We note, however, that

Congress did not purport to require absolute or total

continuity in the gambling operations. Thus, we agree

with the Government’s contention that it wud | be

unreasonable to construe the term “substantially con-

tinuous” as meaning every day.

There was ample evidence for the jury to conclude

that what was involved here was a gambling casino

12 Nos. 76-2181 through 76-2189

which operated substantially continuosuly by virtue of

being open for business almost every weekend with

consistent regularity. We do not read the Congressional

intent as requiring proof of an operation occurring

substantially around-the-clock but rather one that was

operated upon a schedule of regularity sufficient to take

it out of the casual non-business category. The proof

here met the test.

We further agree that Helfer’s allegation that the

Government used the bookmaking activity as a means of

meeting the requirements of the statute is without sub-

stance. The Pat + nono of continuity in Fox’s casino opera-

tion needed no assistance but was self-sufficient for the

purpose. As to the claimed instruction error, the court's

definition of gambling as including “bookmaking” mere-

ly set forth a portion of the statutory language. See

Appendix. We do not interpret the instruction as direct-

ing the jury to consider that particular form of illegal

gambling in determining the substantial continuity of

the casino operation. Indeed, a distinct instruction ex-

pressly left for the jury’s determination that significant

factual question.‘ Helfer’s argument that the instruction

improperly bolstered the assertion of federal jurisdiction

accordingly must be rejected. We affirm his conviction

on Count I.

II.

Appellants Gentry and the Hornsteins similarly con-

am that the evidence was insufficient to sustain their

convictions on Count I. The Government responds, as to

Gentry, that his performance of the function of “door-

man” demonstrated that he was part of the casino opera-

tion. In so arguing, the Government asserts that both

Charles Albright and Agent Salmieri testified that Gen-

try “guarded” the door to the casino. As to the

‘ Thus, after paving first set out the definition of gambling

ee in § 1955, the trial judge charged the jury as

ollows:

The words “substantially continuous operation” should

also be given their normal and customary meaning. What

constitutes “substantially continuous operation” is a ques-

tion for you to decide.

Nos. 76-2181 through 76-2189 13

Hornsteins, the Government asserts that there was am-

- evidence that the Palmer Hotel was merely a new

ocation for the casino operation which had been

operating at Cottonwood Cove. The Government ——

particularly the note listing a Palmer Hotel telephone

number and Nerone’s assertion to Agent Salmieri that

they had “moved” to the Palmer Hotel.

Close review of the trial transcript does not support

the Government’s theory that Gentry guarded the casino

door. Although Salmieri did give Gentry’s name when

asked whether he had seen anyone “guarding” the door

area,° he never did state expressly that Gentry “guard-

ed” the door, nor really, and more to the point in view of

the conclusionary nature of the word “guard,” did he

testify as to activities by Gentry which would appear to

be guarding. Likewise, Albright’s testimony did not sup-

port that characterization. Albright, who was a star

witness for the prosecution, stated that Gentry would

“(tlake care of the door a little bit” and that he might

“have been a body guard, I don’t know.” Albright also

made a reference to the fact that Gentry had opened

both doors to Fox’s basement. The prosecutor inter-

preted this —y “y+ as pertaining to a guarding func-

tion, going so far as to state in closing argument, mis-

takenly in our view, that Albright had stated, “Well, he

guarded both of them [the doors].” (Emphasis supplied.)

Our examination of the trial transcript discloses no such

statement. Without regard to Gentry’s complaints about

persistent prosecutorial misstatements of the evidence,

we note that numerous witnesses established that Gentry

never gambled or assisted in the operation of any of the

games. Gentry usually sat in the bar area and tried to

sell Indian jewelry. We are satisfied that the Govern-

ment has failed to establish that he was an employee or

a participant in the casino operation. Accordingly, his

conviction on Count I of the indictment is reversed.

5 The transcript reveals this colloquy:

Q. Did you see the defendant or anybody guarding the

door area?

A. Yes, Mr. Mercer was at the front door and Mr.

Gentry was in the bar area, and that night he let two

people in through the back door or in a door. He had to

take the two-by-four off of it to let them in and put the

two-by-four back on. [Emphasis added.]

14 Nos. 76-2181 through 76-2189

As to the Hornsteins, the Government concedes that

they were not shown to have been actively involved in

the casino when it was operated at Cottonwood Cove.

The Government asserts, however, that the Hornsteins

clearly worked “or it at the Palmer Hotel. Apart from

the note and Nerone’s statement, the Government pin-

points the evidence that Fox, Nerone, Seppi, Bradley

and Albright “worked” at both locations and Agent

Meduga’s testimony that the operation at the “Where

Else” was “just about identical” to that at Fox’s mobile

home. It also points to the evidence of Nerone’s

bookmaking at the hotel, conceding, however, that this

evidence was not used as evidence of the illegal gambl-

ing business charged in Count I. The Government dis-

counts the significance of the considerable testimony

that the Hornsteins owned the gambling operation at the

Hotel, that the games there operated were “head-to-head”

rather than “house” games (as in Fox’s basement), and

that the Hornsteins themselves, without financial input

from Fox and Nerone, were responsible for maintaining

a sufficient reserve of funds to cover the losses which

might occur at the “Where Else.” By discounting the

evidence tending to show that the Hornsteins’ operation

was separate and independent, of course, the Govern-

ment adheres to its basic theory that the “Where Else”

was operated for the approximate three week period in

May 1975 in conjunction with, and as an “alternative

gambling location” for, the illegal gambling business

run by Fox and his associates.

The key circumstantial evidence to ~ the in-

ference that the games were moved to the Palmer Hotel

as an accommodation to and to facilitate Fox’s operation

was the fact that a note was found at the recreation hall

at Cottonwood Cove telling Fox’s patrons to go down-

town where some gambling was occurring. While down-

town, various defendants, who were involved in Fox’s

mes, operated the “stick,” served liquor and per-

ormed other minor tasks at the Fifth Street location.

However, there was substantial direct and circumstan-

tial evidence presented both by the Government and the

appellants which militates against any inference that

there was a connection between the two gambling

operations. Significantly, trial testimony, unrebutted by

Nos. 76-2181 through 76-2189 15

the Government and coming from its own witnesses, in-

dicates that there was gambling at the Cottonwood Cove,

including the playing of dice, two days before the raid

on Fifth Street. The surveillance notes of IBI Agent

Lewis showed the presence of a dozen or more cars

around Fox’s establishment in the early morning hours.

These automobiles belonged to persons who were known

to frequent Fox’s basement for purposes of gambling.

Such evidence, albeit circumstantial, undercuts the

Government’s theory that the Palmer Hotel was an

alternative location.

We shall have occasion hereinafter to comment upon

the manner in which the Government has confused its

theory of the case with inferences properly to be drawn

from the evidence. At this point, we need only state that

the tria! testimony, measured in the light of the

reasonable doubt standard and in conformity with

Glasser v. United States, 315 U.S. 60, 80 (1942), is not

sufficient to convict the brothers Hornstein of a violation

of 18 U.S.C. ; 1955. Thus, we need not consider Marvin

Hornstein’s claim that the trial court’s admission into

evidence of his brother’s post-conspiracy statements to

FBI agents prejudiced his defense to the § 1955 count.®

Finding no reversible error as to the defendants con-

victed under Count I, with the exceptions noted of Gen-

try and the two Hornsteins, we affirm all other convic-

tions under this Count.

6 Donald Hornstein stated to FBI agents that he had been in

the gambling business with his brother. Marvin Hornstein

contends that this admission went to a material element of

Count I, te, that Marvin maintained an illegal gambling

business in conjunction with other defendants and thus was

one of the persons to be included in the five defendants

required to sustain federal jurisdiction. Because independent

evidence established that more than five persons were

participants in the Fox casino operation, we see no prejudice

on the jurisdictional element. However, the paucity of

evidence showing a connection between the Hornsteins and

Robert Fox may have been augmented by the post-conspiracy,

hearsay statement. In view of our disposition of the Horn-

steins’ convictions on Count I, we deem it unnecessary to

review the exercise of discretion which led the trial judge to

admit Donald Hornstein’s post-conspi statement. We note

at this point that Marvin Hornstein’s challenge to the post-

conspiracy statements of Larron Shellinger and Arthur

Gentry requires separate consideration.

16 Nos. 76-2181 through 76-2189

Ill

Appellants Seppi, Vieth, Gentry, Schellinger, and the

Hornstein brothers present a variety of arguments

aimed at showing that the convictions on Count II must

be reversed. Allowing for the variations in formulation,

the essential thrust of the common sufficiency of the

evidence argument is that the Government has not

proved that these six appellants knowingly participated

in the use of extortionate means to collect or attempt to

collect a debt. The first prong of the argument is that

the evidence abundantly shows that the sole reason for

Fox’s visit to the health spa was to stop Nance from go-

ing to the Attorney General, so that the collection of

Nance’s debt was not really involved in the incident.? We

think that the jury could propery infer that all the

appellants went to the health spa for the purpose of

attempting to collect a debt. The second prong of the

argument relates to knowledgeable participation in the

extortion cepisode. The Government conceded at oral

argument that its case, in this respect, is dependent on

Albright’s testimony.

According to that testimony, he had been in Fox’s

mobile home at around ten o'clock. He further testified

that Fox, Seppi, Vieth, Schellinger and Donald Horn-

stein were present. As Albright entered, Fox was call-

ing Gentry on the phone. Albright heard Fox say that

they were going down to the health spa to put muscle on

a guy. After Gentry arrived, there was more conversa-

tion, which Albright heard. He stated that Fox had

mentioned something to do with the reason they were

going to put muscle on the guy. The record discloses this

colloquy:

Q. What did he [Fox] say the reason was?

A. He [Nance] wasn’t going to pay off and he

Fox] was going down and tear the place up or get

is money.

’ The brief of appellant Vieth summarizes quite succinctly

the common argument:

_ It is clear from the record as a whole that Fox had no

interest in collecting the debt, and that the fracas and

subsequent violence was caused by remarks regarding the

Attorney General but mostly by guns on the persons of

Salmieri and Nance.

Nos. 76-2181 through 76-2189 17

Immediately after this conversation, according to

Albright. the appellants left for the health spa.

The appellants quarrel with Albright’s version of

what happened in or around Fox’s mobile home on the

morning of February 13, 1975. Nevertheless, the jury

was entitled to credit Albright’s version. Moreover,

there was a tape recording of the incident itself played

at the trial. Although that recording does tend to show

that Nance’s remark about the Attorney General and

Salmieri’s possession of a gun were factors when the

confrontation occurred, it also established that the $400

debt played an important role. Thus, the tape contains

the statement, presumably that of Fox, to this effect:

We don’t care about the money now. I’m not

forgetting. The money’s no object now. [Emphasis

added. }

That Fox’s associates lost interest in collecting the

money because of mounting anger arising from Salmieri

and Nance being armed or because of Nance’s earlier

remark does not mean that there was no attempt to

collect an extension of credit. Albright’s testimony in-

culpated all of the appellants char with the extor-

tion. Absent a determination that Albright’s version was

completely incredible, which we cannot make on the

present record, there was ample evidence from which

the jury could find a violation of § 894.

We note that the extortion incident was one of the

overt acts charged in the conspiracy count of the indict-

ment. We therefore consicer at this point the problem of

the claimed use of post-conspiracy admissions by the ad-

mission of the statements of Schellinger and Gentry

which, speaking generally, indicated that they knew

that the purpose of the visit to the health spa was to

recover a debt owed by Nance to Fox. The Government’s

assertion that the statements “implicated no one but

themselves” may be arguably incorrect. Nonetheless, the

statements did not directly implicate any of the other

appellants charged in Count II. Therefore, any error of

admitting the statements did not reach constitutional

proportions under Bruton v. United States, 391 U.S. 123

(1968). See United States v. Fellabaum, 408 F.2d 220,

18 Nos. 76-2181 through 76-2189

225 (7th Cir. 1969); United States v. Guajardo-Melendez,

401 F.2d 35 (7th Cir. 1968). Moreover, the trial court

correctly instructed the jury as to the limited purposes

for which the Schellinger and Gentry statements could

be used.* Inasmuch as the jury was so instructed and in

view of Albright’s testimony showing that the other

appellants knew the purpose of the visit to the health

spa, we conclude that any error in admitting the post-

conspiracy statements was harmless.

IV

Appellant Marvin Hornstein contends that the instruc-

tions pertinent to Count III, when taken together, were

prejudicial to his theory of defense. His specific instruc-

tion challenges are somewhat “straw-grasping” in

nature, but Hornstein presents a very substantial

challenge to the manner in which all objections were

handled. That matter deserves extended comment.

Hornstein concedes that the trial court informed the

appellants of its proposed instructions prior to closing

arguments, but contends that Rule 30, Fed. R. Crim. P.,

was violated in that the defense was not given an oppor-

tunity to inform the court of its objections or to request

permission to withdraw instructions which they had

originally tendered, prior to arguments to the jury and

submission of the court’s instructions to the jury. Horn-

stein observes that the reviewing court sanctions the

ractice of promoting potential error in jury trials when

it allows the trial courts to engage in a policy of denying

the defendant the right to make objections to instruc-

tions prior to submission to the jury.’

* “However, statements of any conspirator which are not in

furtherance of the conspiracy or made before its existence or

after its termination, may be considered as evidence only

against the person making them.” [Emphasis added.]

® Appellant Hornstein asks this court to reexamine its

position in United States v. Slaton, 430 F.2d 1109 (7th Cir.

1970), and to adopt the reasoning of the dissent. In view of

Hornstein’s explicit concession that ‘he trial judge did inform

the defendants of the court’s pro instructions prior to

closing arguments, we have difficulty in discerning his

reliance on the Slaton dissent. Judge Doyle’s dissent was

predicated on the “explicit, flat, and wholesome” requirernent

‘ Tr the court inform counsel of its proposed action.

. at >

Nos. 76-2181 through 76-2189 19

We agree with appellant Hornstein that both the

letter and the spirit of Rule 30 were violated in this

ease. The record establishes that there was an informal

instructions conference prior to argument but that the

trial judge put off the formal statement of objections un-

til after the jury began its deliberation. This court stated

in United States v. Hollinger, 553 F.2d 535, 543 (7th Cir.

1977), as follows:

If, however, the judge conducts only an informal

conference prior to the giving of the charge as to

what requests will be granted or denied and what

instructions the judge intends to give, a full oppor-

tunity must be given after the jury has been in-

structed, but before it begins to deliberate, for counsel

to make a full record on their objections to the

charge as given as well as to the denial of requests.

Further se ay must be given after

the statement of the charge and before the retirement

of the jury to state any additional objections which

may have developed as a result of the giving of the

charge. [Emphasis added.]

Applying that language to the instant case, it clearly

appears that the trial judge’s handling of objections

failed to comply with this circuit’s requirements.

However, this trial took place some months before the

decision in Hollinger. The question thus becomes one of

determining the consequences of refusing to allow

counsel an opportunity to voice their objections to in-

structions before the jury retires. The language of the

rule suggests the answer.'® A party who fails to make

timely and specific objections to the jury charge loses

the opportunity to assign as error any portion of the

charge or omission therefrom. When a trial judge

10 Fed. R. Crim. P. 30, in pertinent part, provides:

No party may assign as error any portion of the charge or

omission therefrom unless he objects thereto before the

jury retires to consider its verdict, stating distinctly the

matter to which he objects and the grounds of his

objection. Opportunity shall be given to make the

objection out of the hearing of the jury and on request of

any party, out of the presence of the jury.

20 Nos. 76-2181 through 76-2189

prevents the party from complying with the rule, the

remedy Prom be appellate consideration of the claimed

errors in instruction. Our prior decisions are consistent

with this approach. £.g., United States v. Lisowski, 504

F.2d 1268, 1272 (7th Cir. 1974); American National

Bank and Trust Company v. Aetna Insurance Company,

447 F.2d 680, 683 (7th Cir. 1971). We do not say that an

outright reversal is beyond either our power or a dis-

tinct possibility. We merely state that appellate review

of Hornstein’s contentions with respect to Instructions

31, 36, 37, and 38 suffices in the instant case.

Appellant Hornstein submits Instruction No. 31 as an

apt illustration of why a conference on jury instructions

should have been held prior to the submission of the case

to the jury. The instruction purported to set forth what

the charge was under Count III.'! Hornstein accurately

i! The Court’s Instruction No. 31 read as follows:

It is charged in Count III of the indictment that on or

about February 13, 1975, in the Southern District of

Illinois, the defendant, Marvin Hornstein did forcibly

assault Stephen A. Saimieri, an officer of the Federal

Bureau of Investigation of the United States Department

of Justice, while said Stephen A. Salmieri was engaged in

the performance of official duties as an officer of the

Federal Bureau of Investigation; and it is further charged

that, in the commission of such assault, the defendant used

a deadly and dangerous weapon, namely: a .38 caliber

Super Automatic; in violation of Title 18, Section 111, of

the United States Code.

The actual charge in the indictment was a bit different. It

stated:

The June, 1975 Grand Jury further charges:

That on or about the thirteenth day of February, 1975

in the Southern District of Illinois, ROBERT-CHARLES

FOX -and MARVIN MARTIN HORNSTEIN, a/k/a

“Pete”, the defendants herein willfully did forcibly and

with the use of a dangerous and deadly weapon assault,

resist, op , impede, intimidate and interfere with

Stephen ft Salmieri, a Special Agent of the Federal

Bureau of Investigation of the Department of Justice,

while the said Stephen A. Salmieri was engaged in the

performance of his official duties

In violation of Sections 111, 1114, and 2, Title 18 United

States Code.

Nos. 76-2181 through 76-2189 21

observes that there was not a single bit of evidence in

the record to indicate that he had used a .38 caliber

super automatic weapon in the incident at the health

spa. The evidence from the Government’s witness was

that the weapon used by the appellant was a .357

magnum. Arguing that the appellant is entitled to a

charge consistent with the indictment, Hornstein asserts

that a technical compliance with a requirement that the

jury can convict only on the basis “as charged” and as

directed by the court warrants reversal of the conviction

on Count III.

There is no question but that Instruction No. 31 is in-

accurate. If the trial court had allowed formal objections

at an earlier time, no doubt the incorrect reference to

the particular weapon would have been corrected.

However. we agree with the Government that the in-

correct identification could have had no bearing on the

jury's determination of guilt or innocence. Moreover, the

judge allowed the jury to take the indictment into the

jury room during its deliberations. Because the indict-

ment made absolutely no reference to the type of

weanon, Hornstein was not prejudiced by the court’s in-

accu: ‘te summation. The factual mistake was more akin

to a cunment on the evidence, albeit inaccurate. Horn-

stein implicitly admits the trivial nature of the mistake.

We think that No. 31 posed no real possibility of prej-

udice, especially in view of the court’s instruction that

the jury alone was the soie exclusive judge of the facts.

7 - a States v. Rodriguez, 498 F.2d 302, 308-09 (5th

ir. .

Hornstein challenges Instruction No. 36, which was an

exact reading of DEVITT AND BLACKMAR, FEDERAL JURY

PRACTICE AND INSTRUCTIONS § 42.04 (3d ed. 1977), as

unnecessarily emphasizing the Government’s proof and

as bearing too much similarity to the facts in the

present case. We think that the instruction accurately

states the law. Any supposed eee arising from the

fact that its second paragraph duplicates the evidence

in the case flows from the more fundamental reality that

Hornstein’s assault on Agent Salmieri represented the

exact type of conduct which the statute prohibits.

22 Nos. 76-2181 through 76-2189

Hornstein’s objection to No. 37 is similarly without

merit. He contends that the court erred in modifying the

last sentence of DEVITT AND BLACKMAR § 42.11 (“Defense

of Another—Effect”). As tendered, Hornstein’s Instruc-

tion No. 5 stated that the appellant would not be guilty

of assaulting Salmieri willfully within the meaning of

the charge and was entitled to a finding of not guilty if

the jury found that the defendant acted in good faith

and because of a reasonable belief in the appearances

that Salmieri was engaged in an apparently unprovoked

and unlawful assault upon Robert Fox and others. The

court modified the instruction by changing the last

clause to read “{T]hen you may consider these factors in

determining the guilt or innocence of said defendant of

this charge contained in said count III. However, as the

Government ints out, the court gave, essentially

unmodified, Hornstein’s Instruction No. 10 as the

Court’s No. 35. This instruction defined the term

“wilfully.”"2 When this instruction is coupled with No.

37, the clear import is that the jury should find

Hornstein not guilty if they found that he was acting in

self-defense. We think the self-defense instruction, read

in context, adequately instructed the jury on this phase

of the defense.

Finally, Hornstein challenges Instruction No. 38,

which stated that knowledge of the identity or official

character of the person assaulted is not an essential

element of the offense. This instruction correctly states

the law. See United States v. Feola, 420 U.S. 671 (1975).

See also United States v. Hillsman, 522 F.2d 454, 459-60

(7th Cir. 1975). Moreover, the trial court supplemented

No. 38 with Hornstein’s No. 8.'* Hornstein submits that

2 The Court’s Instruction No. 35 read:

As previously mentioned, an act is done “wilfully” if

done voluntarily and intentionally, and with the specific

intent to do something the law forbids; that is to say, with

bad purpose either to disobey or to disregard the law.

8 Th rt modified the instruction by substituting the

mall “adserted” for “reasonable.” As modified, ee | No.

8 (Court’s Instruction No. 39) stated:

(Footnote continued on following page)

Nos. 76-2181 through 76-2189 23

the latter instruction is a proper statement of the law,

but suggests that it is inconsistent with the former. We

think this contention totally untenable. Both instructions

accurately state the law, and there is no inconsistency.

While knowledge of the officer’s status is not an

essential element of the offense, lack of knowledge may

be relevant and materia! to the defenses either of self

defense or the defense of others. See generally Hillsman,

supra at 460-62.

Because the jury was adequately instructed on the

assault charge, Hornstein’s conviction on Count III must

be affirmed.

V

Appellants Seppi and Nerone launch a sometimes

confused, but an ultimately successful, attack on the

convictions under Count VI. Their argument contains

two fundamental prongs: first, that the Government

failed to prove that Maple Manor, Inc. was enga in or

its activities affected interstate commerce: and second,

that the Government failed to prove that appellants

Seppi and Nerone engaged in the conduct of the affairs

of the charged enterprise through a pattern of racketeer-

ing activity or collection of unlawful debt. The Govern-

ment does not meet this argument, for it views the

second prong as “essentially the same claim as the

challenge to the court’s charge on interstate commerce.”

Accordingly, the Government responds that the inter-

state commerce requirement of 18 U.S.C. § 1962(c) was

met because, in its view, the evidence showed both that

Maple Manor provided rental space for trailers manu-

factured out of state and that the affairs of Maple

Manor, Inc. were conducted through a pattern of

paeeerng that included violations of 18 U.S.C.

§ 1955.

13 continued

While mnowtetee of the identity or official character of

the person assaulted is not, in and of itself, an element of

the offense of assault of a Federal officer, you may

consider the defendant’s lack of know'edge of the identity

or official character of the person assaulted on the issue of

defendant's asserted [reasonable] belief in the use of force

to protect himself, Robert Fox and others at the time of

the occurrence.

24 Nos. 76-2181 through 76-2189

Before setting out a detailed exposition of the

contentions of the parties and explaining the reasoning

behind our holding that the convictions on Count VI

must be reversed, we initially note our recognition that

§ 1962(c) was intended by Congress as a potent weapon

against organized crime. In U/nited States v. Cappetto,

supra, 502 F.2d at 1358, this court recognized that

Congress’ intention was not only to protect against the

infiltration of legitimate organizations by organized

crime but also included an illegal gambling business in

the categories of “racketeering activity” and “enter-

prise.” The present appeals present questions bearing

upon the proper prosecution of a criminal case where

the Government undertakes to establish that such

infiltration has actually occurred. We have no occasion,

therefore, to address directly the issues determined in

Cappetto.*4

The appellants assert that Count VI is fatally

defective because Maple Manor, Inc. was involved in a

wholly intrastate activity, z.e., the rental of pieces of real

estate upon which mobile homes or trailers could be

parked. They further assert that the jurisdictional

requirements which the Government is required to meet

in charging a violation of § 1962 are different from those

which the Government is required to meet in charging a

violation of § 1955. Next, significantly in our view, they

correctly point out that the only attempt of the

Government to establish a nexus between the charged

enterprise and interstate commerce was the purchase of

mobile homes manufactured in states other than Illinois

by residents of Cottonwood Cove.

The case authority for the appellant’s contention is

that interstate commerce was not involved in Count VI

is Sun Valley Disposal Company v. Silver State Disposal

Company, 420 F.2d 341 (9th Cir. 1969); Diversified

‘* We do note that the Second Circuit reached the same

result in Altese, supra, 542 F.2d at 107, as this circuit reached

in Cappetto. In so doing, the Altese majority apparently

rejected the dissent’s suggestion, id. at 110, that the —

opinion was “unable to withstand careful scrutiny.” The Altese

majority, it is true, purports only to follow the Cappetto

“result,” not its rationale.

Nos. 76-2181 through 76-2189 25

Brokerage Services, Inc. v. Greater Des Moines Board of

Realtors, 521 F.2d 1343 (8th Cir. 1975); and Marston v.

Ann Arbor Property Managers Association, 422 F.2d 836

(6th Cir.), cert. denied, 399 U.S. 929 (1970). Appellants’

reliance on these cases is misplaced. In our view, the

more recent decision of Goldfarb v. Virginia State Bar,

421 U.S. 773 (1975), demonstrates that transactions

related to real estate do “affect” interstate commerce. By

providing rental space for trailers manufactured out of

state, Maple Manor, Inc. indirectly fostered interstate

sales of mobile homes. Proof of the sales of mobile homes

to residents of Cottonwood Cove sufficiently established

the necessary connection, for purposes of § 1962, be-

tween that enterprise and interstate commerce. We

therefore conclude that the jury could properly find that

the activities of Maple Manor, Inc. “affected” interstate

commerce.

Appellants Seppi and Nerone formulate the second

prong of their argument by first noting that the

Government could have drafted the indictment by

charging the “enterprise” consisting of Fox, Nerone, and

Seppi to the exclusion of Maple Manor, Inc. They assert

that the Government had a two-fold purpose in includ-

ing the corporate entity. First, the Government wanted

to bring the conduct of Fox within the scope of § 1962.

Second, the Government wanted to secure a forfeiture of

the property of Maple Manor, Inc. under 18 U.S.C.

§ 1963. The appellants further contend that the Congres-

sional use of the word “through” in § 1962(c) was not

intended to be meaningless. They submit, correctly we

think, that the most logical definitions to ascribe to that

word as used in the statute are “by means of, in

consequence of, by reason of.” See BLACK’s LAW

DICTIONARY 1652 (Rev. 4th ed. 1968). Their fundamental

contention, although we have somewhat paraphrased it,

is that if the word “through” is to ~ operative

meaning, the Government must offer some proof that the

affairs of the charged enterprise were conducted

through a pe of racketeering activity or through

collection of unlawful debt.

The appellants’ approach to the statutory language

gives meaning to its individual words. We do not

26 Nos. 76-2181 through 76-2189

understand the Government to attack the appellants’

view of the proof requirement. Instead, as noted, the

Government en contended that the evidence satisfied

this requirement. Unfortunately, however, the Govern-

ment has, perhaps inadvertently, reversed the proof

analysis. Thus, it asserts that Maple Manor “existed in

substantial part as a vehicle for applicants’ illegal

gambling operation.” The only fair implication of this

formulation is that Fox, Seppi, and Nerone conducted

the casino operation through the mechanism of the

mobile park corporation. The Government further

asserts that the jury could reasonably conclude that

“Fox and his associates used the mobile home park to

house, promote, and conceal their illegal gambling

operation.” Once again, however, this statement can only

be read as suggesting that the casino operation was

advanced through the instrumentality of the corpora-

tion.

On this appeal, it is clear to us that the Government

has been arguing that the casino operation, which was

itself arguably a prohibited enterprise, see note 3 supra,

was facilitated through the cover of a legitimate

enterprise. This court can readily agree that the jury

could infer that such was the fact. The problem with the

Government’s case, however, is that the indictment

charged that the affairs of the mobile home park

corporation, not the casino operation, were conducted

through a pattern of racketeering activity. Our examin-

ation of the record leaves us with the abiding conviction

that the Government never really crystallized its theory

of the case. It made no attempt to show that the

agg of the casino operation were invested in Maple

anor, Inc. Nor did it endeavor to show that gambling

revenues were used by or in any way pale A into the

corporation or that persons were paid out of gambling

revenues to perform services for ests Manor, Inc.

Instead, the Government appears to have assumed

throughout this case, both at trial and on appeal, that

the casino operation and the mobile home park corpora-

tion somehow constituted a merged, illegitimate-legiti-

Nos. 76-2181 through 76-2189 27

mate enterprise.'® Examination of the trial transcript

discloses that the Government never did attach signifi-

cance to the use of the word “through,” included both in

the statute and in the indictment. The Government’s

case must fail because of a total want of proof of the

connection between the racketeering activities and the

affairs of Maple Manor, Inc. Geographical juxtaposition

of the enterprises is insufficient.

We have no occasion at this point to comment upon

appellant Greco’s suggestion that the confusion in the

instant case stemmed from a “faddish” use of a new and

complex statute (RICO) by the United States Attorney.

Nor need we pursue the abstract possibility that Maple

Manor, Inc., which had a substantially legitimate

operation, could not have existed or survived except

from revenues derived from Fox’s casino operation.

While we can agree that the Government introduced

sufficient evidence from which a jury could reasonably

conclude that Fox’s “casino operation” was conducted

through a pattern of racketeering activity, we must note

that there was a total failure of proof that the affairs of

Maple Manor, Inc. were so conducted. The Government

could have framed the indictment and prosecuted the

case against Fox’s gambling enterprise. Had it done so,

we would have no difficulty in concluding that the

convictions obtained under such a theory are sustainable

on the basis of the present record. The dispositive fact,

however, is that the Government chose to frame its

indictment quite differently. The prosecuting team

apparently assumed, but did not prove, that the affairs

of the corporate enterprise charged in the indictment

were advanced through racketeering. We therefore

reverse the convictions under Count VI.

'6 Thus, at oral argument, after members of this panel

inquired as to how the operation of the casino impacted on the

Maple Manor corporation, the Government responded with

assertions, but not with record references to testimony or

evidence, that Maple Manor was “a merged enterprise ... a

front for the gambling operation ... infiltrated by the

racketeering element.”

28 Nos. 76-2181 through 76-2189

VI

The twelve appellants advance a number of argu-

ments as to why the convictions on Count VII must be

reversed. We need not discuss all the contentions, for it

is clear that the Government cannot sustain the

judgments of conviction.

Earlier in this opinion, we observed that the wording

of Count VII, the conspiracy count, is susceptible of two

readings. As noted, the Government reads that count as

charging that the appellants conspired to conduct the

affairs of Maple Manor, Inc. through a pattern of

racketeering activity. In their briefs and at oral

argument, most of the appellants flatly state that the

“enterprise” charged in the conspiracy count is the

mobile home park corporation. If we assume that the

indictment is to be read in that fashion, the reasoning

applicable to Count VI also carries over to Count VII.

That is, the Government totally failed to prove that the

appellants agreed to conduct the affairs of the corpora-

tion through racketeering activity.

It is, however, possible to read Count VII as charging

that the appellants conspired to conduct the affairs of

Fox’s gambling “enterprise” through a pattern of

racketeering. Apart from proof of the interstate com-

merce nexus, we have no problem with the sufficiency of

the evidence under this alternative reading. There

might be a due process problem in affirming a convic-

tion on the basis of a theory of the case which none of

the parties ever entertained. However, we might note

that the trial court’s instruction on Count VII did not

make the mistake of equating the “enterprise” there

charged with that charged in Count VI. Absent any

plain error in the charge, and with considerable

evidence supporting a jury verdict on the actua! charge

in the indictment, the likelihood that appellants could

successfully make out a due process argument is

questionable.

Nonetheless, the statute requires that the charged

enterprise be engaged in or pursue activities affecting

interstate commerce. The Government never attempted

Nos. 76-2181 through 76-2189 29

to prove that the casino operation engaged in or so

affected interstate commerce. Indeed, there was testi-

mony that Fox and his associates wanted to avoid

attracting the interest of the FBI and thus avoided any

kind of conduct which might provide an interstate

commerce element. At oral argument, once it became

clearer that there might be two enterprises involved in

this case, the Government argued that Congress intend-

ed to exercise its Commerce Clause powers so far as

possible when enacting § 1962. In essence, it appears to

argue that by satisfying the five-man and thirty-day

requirements of § 1955 on Count I the prosecution had

necessarily proved a sufficient nexus as to sustain the

Count VII convictions.

We must reject that argument. Aside from the

arguable unfairness of sustaining these convictions upon

an entirely new theory, we hold that the jurisdictional

requirements which the Government is required to meet

in charging a § 1962 violation differ from those it must

meet in charging a § 1955 violation.

In United States v. Hunter, 478 F.2d 1019, 1021 (7th

Cir. 1973), cert. denied, 414 U.S. 857 (1973), this court

interpreted the holding in Perez v. United States, 402

U.S. 146 (1971), as allowing the conclusion that Con-

gress’ special findings that illegal gambling involved

widespread use of, and had an effect on interstate com-

merce and the facilities thereof was “sufficient to sup-

port the statute [§ 1955] even when applied to individual

members of the class whose own activities may not have

any demonstrable impact on interstate commerce.” Ac-

cord, Cappetto, supra, 502 F.2d at 1356. Thus, proof of

the use of or effect on interstate commerce is not re-

quired in order to prove a § 1955 violation. As we stated

in Cappetto, id., the cases “demonstrate that Congress

had power to determine that the class of activities

described in Section 1955 adversely affects interstate

commerce and, based upon that finding, to prohibit

those activities.”

We are unable to apply the same rationale to § 1962.

First, the special legislative findings set out as Part A of

Title VIII of the Organized Crime Control Act of 1970,

30 Nos. 76-2181 through 76-2189

P.L. 91-452,!7 have no counterpart in Title IX of the

Act.'® It is true, of course, that § 904(a) of the Act states

that the provisions of Title IX “shall be liberally con-

strued to effectuate its remedial purposes.” However, the

legislative mandate that the courts liberally construe the

statutory language does not authorize the judiciary to

deviate from the clear and unambiguous meaning of the

statute. While there has been some dispute about the

meaning of the word “enterprise” in § 1962, see, e.g.,

Altese, supra, 542 F.2d at 106-07, there can be no dis-

pute that any such “enterprise”!® must be one engaged,

in, or the activities of which affect, interstate or foreign

commerce. 18 U.S.C. § 1962(c). Second, the definition of

“illegal gambling business” used for purposes of § 1955

cannot be construed as carrying over to § 1962. That

particular definition is clearly limited to the former sec-

tion,2 just as the special findings applicable to syn-

17 Section 801 of the Act read as follows:

The Congress finds that illegal gambling involves

widespread use of, and has an effect upon, interstate

commerce and the facilities thereof.

As this court observed in Hunter, supra at 1021, these special

findings were made “[w]ith respect to Title VIII dealing with

syndicated gambling ... .”

18 References herein to Title VIII for the purposes of this

opinion are to § 1955 and to Title IX are to § 1962.

9 18 U.S.C. § 1961(4) provides:

As used in this chapter [ch. 96}—

(4) “enterprise” includes any individual, partnership,

corporation, association, or other legal entity, and a A

union or group of individuals associated in fact althoug

not a legal entity.

20 18 U.S.C. § 1955(b) provides:

As used in this section—

(1) “illegal gambling business” means a gambling

business which—

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

subdivision in which it is conducted;

_ (ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own all or a part

of such business; and

(iii) has been or remains in substantially continuous

operation for a er in excess of my | ays or has a

gross revenue of $2,000 in any single day.

Nos. 76-2181 through 76-2189 31

dicated gambling relate only to Title VIII. This court

would twist and distort carefully drawn statutory

language were it to transfer the findings and definitions

= part to an entirely different part of the statutory

scheme.

Our approach to the interstate commerce requirement

is consistent with the legislative history. Shortly before

the passage of the Act, the Assistant Attorney General,

Criminal Division, Department of Justice, com-

municated to the Chairman of the Commitiee on the

Judiciary of the House of Representatives the

Department’s views regarding certain issues relating to

the then-pending bill. See 2 U.S. Conc. & ADMIN. NEws

4059-70 (1970). In setting out the position of the Depart-

ment of Justice, the official explained that “Federal

jurisdiction under title VIII rests upon specific findings

of the Congress ... .” Jd. at 4064. Still later, it was

noted that

[a]s is accurately reflected in the findings of part A,

illegal gambling operations have a direct effect

upon interstate commerce. Under its authority to

regulate or prohibit syndicated gambling activities,

we think it is clear that the Congress may also

prohibit conduct which facilitates the operation of

illegal gambling businesses.

Id. The section analysis of the pending bill also pointed

to the special findings, see id. at 4028, while also ex-

plaining that the intent of section 1955 was to reach

“syndicated operations i are so continuous and so

substantial as to be of national concern ... .” Jd. at

4029. Nowhere in that section analysis dealing with the

chapter on “Racketeer Influenced and Corrupt

Organizations,” 7.e., 18 U.S.C. §§ 1961-68 (all included

*! Of course, like the Supreme Court in Perez, supra, 402

U.S. at 156, we do not state that “Congress need make

particularized findings in order to legislate.” The real

problem in this case, as the last paragraph of this part of the

opinion explains, is that there is not only an absence of special

legislative findings but also the prosecution’s total failure to

introduce evidence regarding the effect of the casino operation

on interstate operation.

32 Nos. 76-2181 through 76-2189

in Title IX), is there any indication that the specific find-

ings applicable to § 1955 were to be carried over. It is

true that the section analysis dealing with the statutory

section now under consideration makes no explicit

reference to the interstate commerce aspect.’ Nor does

the analysis make such a reference when explicating the

definitional part of the chapter.** However, the omission

of explanatory references to the language of interstate

commerce provides no basis for deviating from the ex-

plicit language of the statute itself. Cf. Brown, supra,

555 F.2d at 415 n.15.

The indictment in this case can be read as alle ing

that the appellants agreed to conduct the affairs of Fox's

casino enterprise through a pattern of racketeering ac-

tivity. However, this conspiracy would constitute a

federal offense only if the “enterprise” engaged in ac-

tivities which affected interstate commerce. By rejecting

the Government’s argument that the interstate com-

merce requirement of § 1955 can be automatically

carried over to § 1962, we are required to reverse all the

convictions under that count.

Our disposition of this count should not be misin-

terpreted. We are not saying that a gambling “enter-

prise” such as Fox’s has no effect upon interstate com-

merce. Such an assertion would plainly contravene Con-

gressional findings. We merely state that the prosecu-

tion cannot rest upon the Title VIII special findings and

definitions to establish the requisite effect on commerce.

The Government might have successfully prosecuted the

twelve defendants if it had attempted to introduce

evidence showing that the “casino operation” affected in-

terstate commerce. Under the approach which has been

taken in many reported decisions, only slight evidence

#2 “Subsection (c) prohibits the conduct of the enterprise

through the prohibited pattern of activity or collection of debt.

Again, the prohibition is without exception.” /d. at 4033.

*8 “Subsection (4) [of § 1961] defines “enterprise” to include

associations in fact, as well as legally recognized associative

entities. Thus, infiltration of oy associative group by any

individual or group capable of holding a property interest can

be reached.” /d. at 4032.

Nos. 76-2181 through 76-2189 33

would have been required. Here, because of apparent

prosecutorial uncertainty about the theory of its case, a

matter by now sufficiently explored, the Government

made no effort at all to connect the dice and card games

to interstate commerce. Although we emphatically dis-

agree with the suggestion that the Federal Strike Force

was attempting to create a federal offense from essen-

tially local gambling activity, we must agree that the

Government has not proved either substantive or con-

spiracy charges under § 1962.

VII

The twelve appellants have raised a number of other

claims of reversible error. Our examination of these

other claims indicates no sufficient reason for prolong-

ing this opinion by a formal statement of our reasons for

rejecting these arguments. It suffices to note that the

appellants claim reversible error with respect to instruc-

tions, the admission of evidence, the denial of severance,

improper prosecutorial argument, a double jeopardy

violation, a speedy trial violation (withdrawn at oral

argument), and improper amendment of the indictment.

Some of these challenges, particularly those relating to

severance and evidence, are those ordinarily found when

multiple defendants are charged variously in the same

indictment and are tried jointly. Cf. United States v.

Campanale, 518 F.2d 352, 359 (9th Cir. 1975), cert.

denied, 423 U.S. 1050 (1976).

We have considered the various arguments. We do not

consider them as possessing sufficient merit as to call

for a different result, in any one of the consolidated

appeals, from that which we have reached. Accordingly,

the convictions of appellants Nerone, Seppi, Bradley,

Caples, Jamerson, and Helfer under Count I are af-

firmed. The convictions of Gentry and the two

Hornsteins under Count I are reversed. All convictions

under Count II are affirmed. The conviction of Marvin

Hornstein under Court III is affirmed. The convictions

of Seppi and Nerone under Count VI are reversed. The

—-" of all twelve appellants on Count VII are

reve ‘

34 Nos. 76-2181 through 76-2189

Under Sumpter v. DeGroote, 552 F.2d 1206 (7th Cir.

1977), there can be no retrial on those counts as to which

we have ordered reversal. “Unlike reversals due to

procedural errors of law that impair effective presenta-

tion of the defendant’s case, reversals based on the

failure of the prosecution’s proof represent the judgment

of an appellate court that the defendant was entitled to a

directed acquittal at trial.” /d. at 1211. The district

court is instructed to enter judgments of acquittal upon

those counts which have been reversed.

AFFIRMED IN PART;

REVERSED IN PART;

REMANDED WITH INSTRUCTIONS.

Nos. 76-2181 through 76-2189 35

STATUTORY APPENDIX

18 U.S.C. § 1955 provides:

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

vises, directs, or owns al] or part of an illegal

gambling business shall be fined not more than

— or imprisoned not more than five years, or

tn.

(b) As used in this section—

(1) “illegal gambling business” means a

gambling business which—

(i) is a violation of the law of a

State or political subdivision in which

it is conducted;

(ii) involves five or more persons

who conduct, finance, manage, super-

vise, direct, or own all or part of such

business; and

(iii) has been or remains in sub-

stantially continuous operation for a

period in excess of thirty days or has a

— revenue of $2,000 in any single

ay.

(2) “gambling” includes but is not limited

to pool-selling, bookmaking, maintaining slot

machines, roulette wheels or dice tables, and

conducting lotteries, policy, bolita or

numbers games, or selling chances therein.

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

States, the District of Columbia, the Com-

monwealth of Puerto Rico, and any territory

or possession of the United States.

(c) If five or more persons conduct, finance,

manage, supervise, direct, or own all or part of a

gambling business and such business operates for

two or more successive days, then, for the purpose

of obtaining warrants for arrests, interceptions, and

other searches and seizures, probable cause that the

36

Nos. 76-2181 through 76-2189

business receives gross revenue in excess of $2,000

in any single day shall be deemed to have been es-

tablished.

(d) Any property, including money, used in

violation of the provisions of this section may be

seized and forfeited to the United States. All

provisions of law relating to the seizure, summary,

and judicial forfeiture procedures, and condemna-

tion of vessels, vehicles, merchandise, and baggage

for violation of the customs laws; the disposition of

such vessels, vehicles, merchandise, and baggage or

the proceeds from such sale; the remission or

mitigation of such forfeitures; and the compromise

of claims and the award of compensation to in-

formers in respect of such forfeitures shall apply to

seizures and forfeitures incurred or alleged to have

been incurred under the provisions of this section,

insofar as applicable and not inconsistent with such

provisions. Such duties as are imposed upon the

collector of customs or any other person in respect

to the seizure and forfeiture of vessels, vehicles,

merchandise, and baggage under the customs laws

shall be performed with respect to seizures and

forfeitures of property used or intended for use in

violation of this section by such officers, agents, or

other persons as may be designated for that purpose

by the Atterney General.

(e) This section shali not apply to any bingo

game, lottery, or similar game of chance conducted

by an organization exempt from tax under

aragraph (3) of subsection (c) of section 501 of the

nternal Revenue Code of 1954, as amended, if no

part of the gross receipts derived from such activity

inures to the benefit of any private shareholder,

member, or employee of such organization except as

compensation for actual expenses incurred by him

in the conduct of such activity.

18 U.S.C. § 894 provides:

(a) Whoever knowingly participates in any way,

or conspires to do so, in the use of any extortionate

means

Nos. 76-2181 through 76-2189 37

(1) to collect or attempt to collect any ex-

tension of credit, or

(2) to punish any person for the nonrepay-

ment thereof, shall _ fined not more than

$10,000 orc imprisoned not more than 20

years, or both.

(b) In any prosecution under this section, for the

purpose of showing an implicit threat as a means of

collection, evidence may be introduced tending to

show that one or more extensions of credit by the

creditor were, to the knowledge of the person

against whom the implicit threat was alleged to

have been made, collected or attempted to be

collected by extortionate means or that the non-

repayment thereof was punished by extortionate

means.

(c) In any prosecution under this section, if

evidence has been introduced tending to show the

existence, at the time the extension of credit in

question was made, of the circumstances described

in section 892(b\1) or the circumstances described

in section 892(b\2), and direct evidence of the ac-

tual belief of the debtor as to the creditor’s collec-

tion practices is not available, then for the purpose

of showing that words or other means of com-

munication, shown to have been employed as a

means of collection, in fact carried an express or

implicit threat, the court may in its discretion allow

evidence to be introduced tending to show the

reputation of the defendant in any community of

which the person against whom the alleged threat

was made was a member at the time of the collec-

tion or attempt at collection.

18 U.S.C. § 111 provides:

Whoever forcibly assaults, resists, opposes, im-

pedes, intimidates, or interferes with any person

designated. in section 114 of this title while en-

ged in or on account of the performance of his of-

icial duties, shall be fined not more than $5,000 or

imprisoned not more than three years, or both.

Nos. 76-2181 through 76-2189

Whoever, in the ommission of any such acts uses

a deadly or dang ous weapon, shall be fined not

more than $10,000 or imprisoned not more than ten

years, or both.

18 U.S.C. § 1114 provides:

Whoever kills any judge of the United States, any

United States Attorney, any Assistant United

States Attorney, or any United States marshal or

deputy marshal or person employed to assist such

marshal or deputy marshal, any officer or employee

of the Federal Bureau of Investigation of the

Department of Justice, any officer or employee of

the Postal Service, any officer or employee of the

secret service or of the Drug Enforcement Ad-

ministration, any officer or enlisted man of the

Coast Guard, any officer or employee of any United

States penal or correctional institution, any officer,

employee or agent of the customs or the internal

revenue or any person assisting him in the execu-

tion of his duties, any immigration officer, any of-

ficer or employee of the Department of Agriculture

or of the Department of the Interior designated by

the Secretary of Agriculture or the Secretary of the

Interior to enforce any Act of Congress for the

protection, preservation, or restoration of game and

other wild birds and animals, any employee of the

Department of Agriculture designated by the

Secretary of Agriculture to carry out any law or

regulation, or to perform any function in connection

with any Federal or State program or any program

of Puerto Rico, Guam, the Virgin Islands of the Un-

ited States, or the District of Columbia, for the con-

trol or eradication or prevention of the introduction

or dissemination of animal diseases, any officer or

employee of the National Park Service, _ officer

or employee of, or assigned to duty in, the field ser-

vice of the Bureau of Land Management, or any of-

ficer or employee of the Indian field service of the

United States, or any officer or employee of the

National Aeronautics and Space Administration

Nos. 76-2181 through 76-2189 39

directed to guard and protect property of the Un-

ited States under the administration and control of

the National Aeronautics and Space Administra-

tion, any security officer of the Department of State

or the Foreign Service, or any officer or employee

of the Department of Health, Education, and

Welfare, or of the Department of Labor, or of the

Department of Agriculture assigned to perform in-

vestigative, inspection, or law enforcement func-

tions, while engaged in the performance of his of-

ficial duties, or on account of the performance of his

official duties, shall be punished as provided under

sections 1111 and 1112 of this title.

18 U.S.C. § 1961 provides:

As used in this chapter—

(1) “Racketeering activity” means (A) any act

or threat involving murder, kidnaping, gambling,

arson, robbery, bribery, extortion, or dealing in

narcotic or other dangerous drugs, which is

chargeable under State law and punishable by im-

prisonment for more than one year: (B) any act

which is indictable under any of the following

provisions of title 18, United States Code: Section

201 (relating to bribery), section 224 (relating to

sports bribery), sections 471, 472 and 473 (relating

to counterfeiting), section 659 (relating to theft from

interstate shipment) if the act indictable under sec-

tions 659 is felonious, section 664 (relating to em-

bezzlement from pension and welfare funds), sec-

tions 891-894 (relating to extortionate credit trans-

actions), section 1084 (relating to the transmission

of gambling information), section 1341 (relating to

mail fraud), section 1343 (relating to wire fraud),

section 1503 (relating to obstruction of justice), sec-

tion 1510 (relating to obstruction of criminal in-

vestigations), section 1511 (relating to the obstruc-

tion of State or local law enforcement), section 1951

(relating to interference with commerce, robbery,

or extortion), section 1952 (relating to racketeering),

section 1953 (relating to interstate transportation of

40

Nos. 76-2181 through 76-2189

wagering paraphernalia), section 1954 (relating to

unlawful welfare fund payments), section 1955

(relating to the prohibition of illegal gambling

businesses), sections 2314 and 2315 (relating to in-

terstate transportation of stolen property), sections

2421-24 (relating to white slave traffic), (C) any act

which is indictable under title 29, United States

Code, section 186 (dealing with restrictions on

payments and loans to labor organizations) or sec-

tion 501(c) (relating to embezzlement from union

funds), or (D) any offense involving bankruptcy

fraud, fraud in the sale of securities, or the

felonious manufacture, importation, receiving, con-

cealment, buying, selling, or otherwise dealing in

narcotic or other dangerous drugs, punishable un-

der any law of the United States;

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

States, the District of Columbia, the Commonwealth

of Puerto Rico, any territory or possession of the

United States, any political subdivision, or any

department, agency, or instrumentality thereof;

(3) “person” includes any individual or entity

capable of holding a legal or beneficial interest in

property;

(4) “enterprise” includes any individual,

partnership, corporation, association, or other legal

entity, and any union or group of individuals

associated in fact although not a lena entity;

(5) “pattern of racketeering activity” requires

at least two acts of racketeering activity, one of

which occurred after the effective date of this

chapter and the last of which occurred within ten

years (excluding any period of imprisonment) after

the commission of a prior act of racketeering activi-

ty;

(6) “unlawful debt” means a debt (A) incurred

or contracted in apr Bey which was in

violation of the law of the United States, a State or

Nos. 76-2181 through 76-2189 4]

political subdivision thereof, or which is unen-

forceable under State or Federal law in whole or in

part as to principal or interest because of the laws

relating to usury, and (B) which was incurred in

connection with the business of gambling in viola-

tion of the law of the United States, a State or

political subdivision thereof, or the business of lend-

ing money or a thing of value at a rate usurious un-

der State or Federal law, where the usurious rate is

at least twice the enforceable rate;

(7) “racketeering investigator” means any at-

torney or investigator so designated by the Attorney

General and charged with the duty of enforcing or

carrying into effect this chapter;

(8) “racketeering investigation” means any in-

quiry conducted by any racketeering investigator

for the purpose of ascertaining whether any person

has been involved in any violation of this chapter or

of any final order, judgment, or decree of any court

of the United States, duly entered in any case or

proceeding arising under this chapter;

(9) “documentary material” includes any book,

paper, document, record, recording, or other

material; and

(10) “Attorney: General” includes the Attorney

General of the United States, the Deputy Attorney

General of the United States, any Assistant At-

torney General of the United States, or any em-

ployee of the Department of Justice or any employ-

ee of any department or agency of the United States

so designated by the Attorney General to carry out

the powers conferred on the Attorney General by

this chapter. Any department or agency so

designated may use in investigations authorized by

this chapter either the investigative provisions of

this chapter or the investigative power of such de-

partment or agency otherwise conferred by law.

Nos. 76-2181 through 76-2189

18 U.S.C. § 1962 provides:

(a) It shall be unlawful for any person who has

received any income derived, directly or indirectly,

from a pattern of racketeering activity or through

collection of an unlawful debt in which such person

has participated as a principal within the meaning

of section 2, title 18, Uni States Code, to use or

invest, directly or indirectly, any part of such in-

come, or the proceeds of such income, in acquisition

of any interest in, or the establishment or operation

of, any enterprise which is engaged in or the ac-

tivities of which affect, interstate or foreign com-

merce. A purchase of securities on the open market

for purposes of investment, and without the inten-

tion of controlling or participating in the control of

the issuer, or of assisting another to do so, shall not

be unlawful! under this subsection if the securities

of the issuer held by the purchaser, the members of

his immediate family, and his or their accomplices

in any pattern or racketeering activity of the collec-

tion of an unlawful debt after such purchase do not

amount in the aggregate to one percent of the out-

standing securities of y one class, and do not con-

fer, either in law or in fact, the power to elect one

or more directors of the issuer.

(b) It shall be unlawful for any person through a

pattern of racketeering activity or through collec-

tion of an unlawful debt to acquire or maintain,

directly or indirectly, any interest in or control of

any enterprise which is engaged in, or the activities

of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed

_ by or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or in-

directly, in the conduct of such enterprises affairs

through a pattern of racketeering activity or collec-

tion of unlawful debt.

(d) It shall be unlawful for any person to con-

spire to violate ~~ of the provisions of subsections

(a), (b), or (c) of this section.

Nos. 76-2181 through 76-2189 43

Ill. Rev. Stat., ch. 38, § 28-1 provides:

(a)

A person commits gambling when he:

(1) Plays a game of chance or skill for

money or other thing of value, unless ex-

cepted in subsection (b) of this Section; or

(2) Makes a wager upon the result of

any game, contest, or any political nomina-

tion, appointment or election; or

(3) Operates, keeps, owns, uses,

purchases, exhibits, rents, sells, bargains for

the sale or lease of, manufactures or dis-

tributes any gambling device; or

(4) Contracts to have or give himself or

another the option to buy or sell, or contracts

to buy or sell, at a future time, any grain or

other commodity whatsoever, or any stock or

security of any company, where it is at the

time of making such contract intended by

both parties thereto that the contract to buy

or sell, or the option, whenever exercised, or

the contract resulting therefrom, shall be

settled, not by the receipt or delivery of such

property, but by the payment only of

differences in prices thereof: however, the

issuance, purchase, sale, exercise, endorse-

ment or guarantee, by or nee a person

registered with the Secretary of State pur-

suant to Section 8 of the Illinois Securities

Law of 1953, or by or through a person ex-

empt from such registration under said Sec-

tion 8, of a put, call, or other option to buy or

sell securities which have been registered

with the Secretary of State or which are ex-

empt from such registration under Section 3

of the Illinois Securities Law of 1953 is not

gambling within the meaning of this

paragraph (4); or

(5) Knowingly owns or possesses any

book, instrument or apparatus by means of

which bets or wagers have been, or are,

recorded or registered, or knowingly

any money which he has received

in the course of a bet or wager; or

44

Nos. 76-2181 through 76-2189

(6) Sells pools upon the result of any

game or contest of skill or chance, political

nomination, appointment or election; or

(7) Sets up or promotes any lottery or

sells, offers to sell or transfers any ticket or

share for any lottery; or

(8) Sets up or promotes any policy game

or sells, offers to sell or knowingly possesses

or transfers any policy ticket, slip, record,

document or other similar device; or

(9) Knowingly advertises any lottery or

policy game or drafts, prints or publishes

any lottery ticket or share, or any policy

ticket, slip, record, document or similar

device, or any advertisement of any lottery or

policy game; or

(10) Knowingly transmits information as

to wagers, betting odds, or changes in bet-

ting odds by telephone, telegraph, radio,

semaphore or similar means; or knowingly

installs or maintains equipment for the

transmission or receipt of such information;

except that nothing in this subdivision (10)

prohibits transmission or receipt of such in-

formation for use in news reporting of sport-

ing events or contests.

(b) Participants in any of the following activities

shall not be convicted of gambling:

(1) Agreements to compensate for loss

caused by the happening of chance including

without limitation contracts of indemnity or

guaranty and life or health or accident in-

surance; and

(2) Offers of prizes, award or compensa-

tion to the actual contestants in any bona fide

contest for the determination of skill, speed,

strength or endurance or to the owners of

animals or vehicles entered in such contest;

and

Nos. 76-2181 through 76-2189 45

(3) Pari-mutuel betting as authorized by

the law of this State; |

(4) Manufacture of gambling devices, in-

cluding the acquisition of essential parts

therefor and the assembly thereof, for

transportation in interstate or foreign com-

merce to any place outside this State when

such transportation is not prohibited by any

applicable Federal law; and

(5) The game commonly known as

“bingo”, when conducted in accordance with

“An Act making lawful the conducting of

bingo by certain non-profit organizations, re-

uiring licensing and prescribing regulations

therefor;”

(6) Lotteries when conducted by the

State of Illinois in accordance with the

“lilinois Lottery Law”, enacted by the 78th

General Assembly.

(c) Sentence.

Gambling under subsection (aX1) or (aX2) of this

Section is a Class A misdemeanor. Gambling under

any of subsections (aX2) through (aX10) of this Sec-

tion is a Class A misdemeanor. A second or subse-

quent conviction under any of subsections (aX3)

through (aX10), is a Class 4 felony.

(d) Circumstantial evidence.

In prosecutions under Subsecticn 28-1(aX1)

through Subsection 28-l(aX10), circumstantial

evidence shall have the same validity and weight as

in any criminal prosecution.

Ill. Rev. Stat. ch. 38, § 28-1.1 provides:

(a) Declaration of Purpose. Recognizing the

close relationship between professional gambling

and other organized crime, it is declared to be the

policy of the legislature to restrain persons from

engaging in the business of gambling for profit in

this State. This Section shall be liberally construed

46

Nos. 76-2181 through 76-2189

and administered with a view to carrying out this

policy.

(b) A person commits syndicated gambling

when he operates a “policy game” or engages in the

business of bookmaking.

(c) A person “operates a policy game” when he

knowingly uses any premises or property for the

purpose of receiving or knowingly does receive from

what is commonly called “policy”:

(1) money from a person other than the

bettor or player whose bets or plays are

represented by such money; or

(2) written “policy game” records, made

or used over any period of time, from a per-

son other than the bettor or player whose

bets or plays are represented by such written

record.

(d) A person engages in bookmaking when he

receives or accepts more than five bets or wagers

upon the result of any trials or contests of skill,

— or power of endurance or upon any lot,

nce, casualty, unknown or contingent even what-

soever, which bets or wagers shall of such size

that the total of the amounts of money paid or

promised to be paid to such bookmaker on account

thereof shall exceed $2,000. Bookmaking is the

receiving or accepting of such bets or wagers

regardless of the form or manner in which the

bookmaker records them.

(e) Participants in any of the following activities

shall not be convicted of syndicated gambling:

(1) Agreements to compensate for loss

caused by the happening of chance including

without limitation contracts of indemnity or

guaranty and life or health or accident in-

surance; and

(2) Offers of prizes, award or compensa-

tion to the actual contestants in any bona fide

contest for the determination of skill, speed,

-

Nos. 76-2181 through 76-2189 47

strength or endurance or to the owners of

— or vehicles entered in such contest;

a

(3) Pari-mutuel betting as authorized by

laws of this State; and

(4) Manufacture of gambling devices, in-

cluding the “th uisition of essential parts

therefor and e assembly thereof, for

transportation in interstate or foreign com-

merce to any place outside this State when

such transportation is not prohibited by any

applicable Federal law.

(f) Sentence. Syndicated gambling is a Class 3

felony.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 4216—Midwest Law Printing Co., Inc., Chicago—9-29-77 —275