Petition — Jackson v. United States

-

'

8 QO re 1 5 8 9 : Office-Supreme Court, U.S.

NO.

FILED

MAR 22 1981

ee rs L. STEVAS,

|

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

DAVID CARSON JACKSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT ANS=3RE2?

William H. Haboush

2120 Staples Mill Road

Richmond, Virginia 23230

(804) 257-7229

Counsel for Petitioner

APPELLATE PRINTING SERVICES, INC.. HERITAGE BLOG.. RICHMOND. VA (804) 643-7789

No.

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1980

DAVID CARSON JACKSON,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Petitioner, David Carson Jackson, by

counsel, respectfully prays that a writ

of certiorari issue to review the decision

of the United States Court of Appeals for

the Fourth Circuit entered on February

13, 1981.

>.

QUESTIONS PRESENTED

I. Whether the Government failed to

fulfill its burden of proof to establish

that the Petitioner participated in an

illegal gambling business which had been

in substantially continuous operation for

a period in excess of thirty (30) days.

II. Whether the Government failed to

adduce proof sufficient to demonstrate

that the Petitioner was involved in an

"illegal gambling business".

III. Whether the trial court erred in

denying Petitioner's motion for a new

fai .

etts

TABLE OF CONTENTS

Questions Presented dpe ea ogt gl a MY

Table of Authorities .

Opinions Below

Jurisdiction

Statutory Provisions Involved

Statement of the Case

on WwW WD

Reasons for Granting the Writ

ie The Government failed to

fulfill its burden of proof to

establish that the Petitioner

participated in an illegal gambl-

ing business which had been in

substantially continuous opera-

tion for a period in excess of

Charen (eer Gere. 6 ok Aes 8

II. The Government failed to

adduce proof sufficient to den-

onstrate that Petitioner was

involved in an Beinn —

ing business"... . re

III. The trial court erred in

—— Petitioner's Motion for

a New Trial after newly discover-

ed evidence indicated that there

was misconduct on the part of

the Government's informant... 30

-1ii-

Table of Contents, Cont. Page

I ee eee

PC ike « ia « « 6 im

OS SS a a

-iv-

TABLE OF AUTHORITIES

Cases Page

Mesarosh v. United States, 36

Sanabria v. United States, rs

United States v. Avarello,

; t r. 1979) 11

United States v. Bourg,

598 F2Zd 445 (5th Cir. 1978) . 31

United States v. Boyd,

566 F.2d 929 (5th te 1978). 33

United States v. C ion

560 F.2d 751 (oth Cie 1979). 28

United States v. Carlone,

: t r. a

United States v. Clements,

th Cir.),

cert. ‘denied 431 U.S. 936

(I979) : i tes ie s ebb, 68,27 ,32

United States v. Cur

t eB

cert. denied sub nom. Hemingwa

v. United States, 4279 U.S. fg

ee 29

United States v. rte ).

l

cert. denied, 369 U.S. 804

(1962). ‘ ‘ . 36

=

Table of Authorities, Cont.

Cases, Cont.

United States v. Gresko,

fs t r. 1980).

United States v. Lipowski,

423 F. Supp. 864 (D.N.J. 1976)

United States v. McCoy,

539 F.2d L050 (5th Cir. 1976).

United States v. Morris,

; t r. 1979)

United States v. Nerone,

t r. 1977),

cert. ‘denied, 435 U.S. 951

United States v. Tarter,

(6th Cir. 1975)

Williams v. United patos:

t 74)

Statutes and Rules

18 U.S.C. Section 1955

he. a

18 U.S.C. Section stele (a)

(Supe. 1966)...

18 U.S.C. Section 1955 nel st)

(ii) (Supp. 1980)...

18 U.S.C. Section 1955 (0) 2)

atts Sipe 1980) ...

-vi-

; ao, ,al

31

12,16,22

Table of Authorities, Cont.

Cases, Cont. Page

oe ea or 2. 8S; wf... 5, 38

Other Authority

2 vibe aba and Miller, Federal

Practice and Procedure: Criminal

Section 557 (1969). . ‘igienag 7 |

H.R. Rep. No. 1549, 91st 4

0)

2d Sess. 2, reprinted in (19

U.S. Code Cong. & Ad. News 4029 .. 25

NE Eg eas ee ale Od

-vii-

es

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

DAVID CARSON JACKSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ril 9, 1980, Judgment

entaced against Petitioner

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

February 13, 1981, Judgment

of district court affirmed

|»

7%

OPINIONS BE?.0W

The decision below by the Circuit

Court of Appeals for the Fourth Circuit

is an unpublished memorandum decision

which is set out in full as Appendix A.

The opinion below by the United States

District Court for the Eastern District

of Virginia is an unpublished decision

which was read in open court.

7’.

JURISDICTION

The judgment of the Circuit Court of

Appeals for the Fourth Circuit was énter-

ed on February 13, 1981. This petition

for certiorari was filed within thirty

(30) days of that date, as prescribed by

S.Ct.R. 22(2) (1976). This Court's

jurisdiction is invoked under 23 U.S.C.

Section 1254 (1) (1966).

STATUTORY PROVISIONS

18 U.S.C. Section 1955

(a) Whoever conducts, finances, man-

ages, supervises, directs, or owns

ali 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-

ate

(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 bus-

iness; and

(iii) has been or remains in

substantially continuous

operation for a period in

excess of thirty (30) 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

machines, roulette wheels or

dice tables, and conducting

loteries, policy, bolita or

obe

numbers games, or selling chances

therein.

(3) "State" means any State of

the United States, the District

of Columbia, the Commonwealth of

Puerto Rico, and any territory

or possession of the United

States.

--Fed. R. Crim. R. 33

The court on motion of a defen-

dant may grant a new trial to him if

required in the interest of justice.

If trial was by the court,without a

jury, the court on motion of a def-

endant for a new trial may vacate

the judgment if entered, take addi-

tional testimony and direct the

entry of a new judgment. A motion

for a new trial based on the ground

of newly discovered evidence may be

made only before or within two years

o$e

after final judgment, but if an ap-

peal is pending the court may grant

the motion only on remand of the

case. A motion for a new trial

based on any other grounds shall be

made within 7 days after verdict or

finding of guilty or within such

further time as the court may fix

during tne 7-day period.

STATEMENT OF THE CASE

The Petitioner, David Carson Jackson,

was indicted by a federal grand jury sit-

ting in Norfolk, Virginia, in September,

1979. The Petitioner, along with one

Joseph Eugene Hazelwood, now deceased,

and one Margaret Frances McKenzie, was

charged with violations of 18 U.S.C.

Section 1955 (Supp. 1980), which prohib-

its persons from conducting, financing,

managing, supervising, directing or

owning all or part of an illegal gambl-

ing business.

The Petitioner, together with Hazel-

wood and McKenzie, was tried before a

jury in the United States District Court

for the Eastern District of Virginia,

Newport News Division, Judge J. Clavitt

Clarke, Jr., presiding. The jury found

the Petitioner to be guilty as charged

and Judge Clarke committed him to custo-

~~»

dy for a period of four (4) years along

with a fine of $20,000. ‘Trior to and at

the time of sentencing the Petitioner

filed a motion for a new trial with the

trial court on the basis of newly dis-

covered evidence of the government in-

formant who testified against them.

This motion was denied by the trial court.

The Petitioner appealed the judgment

of the district court to the United

States Court of Appeals for the Fourth

Circuit. The Petitioner raised therein

the three grounds which are asserted

here in support of their argument for

reversal. On February 13, 1981, the

Fourth Circuit affirmed the decision of

the district court.

REASONS FOR GRANTING THE WRIT

I

THE GOVERNMENT FAILED TO FULFILL ITS

BURDEN OF PROOF TO ESTABLISH THAT

= =

THE PETITIONER PARTICIPATED IN AN

ILLEGAL GAMBLING BUSINESS WHICH HAD

BEEN IN SUBSTANTIALLY CONTINUOUS

OPERATION FOR A PERIOD IN EXCESS

OF THIRTY (30) DAYS.

The Petitioner was convicted of vio-

lating 18 U.S.C. Section 1955, which pro-

vides in pertinent part:

(a) Whoever conducts, finances, man-

ages, 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,

«%e

Manage, supervise, direct,

or own all part of such bus-

iness; and

(iii) has been or remains in

substantially continuous op-

eration for a period in ex-

cess of thirty (30) 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

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 Commonwealth of

Puerto Rico, and any territory

siBe

or possession of the United Sta-

tes.

In order to establish a violation of

this statute, that a defendant is invol-

ved in a gambling business, it is neces-

sary to prove that (1) there has been a

violation of the law of a state, (2)

five or more persons are involved in the

operation of the business, and (3) the

operation has continued more than thirty

(30) days or grossed more than $2,000

in a single day. United States v.

Clements, 588 F.2d 1030, 1037 (5th Cir.),

cert. denied, 431 U.S. 936 (1979).

In prosecutions under 18 U.S.C. Section

1955, the Government has the burden of

proving the existence of an "illegal

gambling business" beyond a reasonable

doubt. United States v. Avarello, 592

F.2d 1339 (5th Cir. 1979).

The Petitioner first contends that

elite

the prosecution's evidence was insuffici-

ent to prove the third essential element

of the offense, that is, that the alleged

"illegal gambling business" was in "sub-

stantially continuous operation for a

period in excess of thirty (30) days".

18 U.S.C. Section 1955 (b) (1) (iii).}

The Government's case at trial con-

sisted of the following proof:

(1) Sergeant Palmer D. Bowling of

the Newport News Police Department testi-

fied that he and three other officers of

that department maintained visual and

photographic surveillance of the premises

of Jackson's Used Auto Engines, Inc.,

Isince the government chose to rely

at trial upon proof that the alleged "il-

legal gambling business" was in "substan-

tially continuous operation" for more

than 30 days, the "gross revenue clause”

of the statute, 18 U.S.C. Section 1955 (b)

(1) (iii) is not in issue here. The re-

cord is, moreover, barren of any evidence

with respect to alleged "gross revenue" in

this case. 12

during a period beginning on December 10,

1977, and ending on January 26, 1978.

Sergeant Bowling testified that the

surveillance was carried out on December

10, 21, and 22, 1977, and January 6, 11,

14, 17, 18, 19, 20, 25 and 26, 1978,

(App. at 33). The facts indicate, how-

ever, that what the police termed "gambl-

ing activities" occurred on only five

days: December 21, 1977, and January 6,

ae, af Ghd 16, 1978. (App. at 34, 37,

39-41.)

(2) The police surveillance indicated

that on at least five occasions, the of-

ficers observed one Edwardo Robert Lowrey

transport a small brown paper bag from

the nearby 2lst Street Newsstand to

Jackson's Used Auto Engines, Inc. Ser-

geant Bowling testified that Lowrey re-

moved the package from his coat and plac-

ed it inside a Volkswagen van, which was

oi Se

parked adjacent to the above-mentioned

premises. A short time later, the Peti-

tioner's co-defendant, Joseph Hazelwood,

would enter the Volkswagen vehicle, pick

up the bag, and then leave in his car.

(App. at 35-36, 42, 55, 64, 108.) On

only two of these occasions, however,

was Sergeant Bowling able to determine

that Lowrey had actually placed a brown

paper bag inside the Volkswagen. (App.

at 63-64.)

(3) Robert G. Prime, a former paid

informant for the Newport News police,

testified that, while working as a taxi

driver, he had transported Lowrey to

"Jackson Motors", where Lowrey delivered

a brown paper bag.

(4) The police conducted a search of

the premises of Jackson's Used Auto En-

gines, Inc., on January 26, 1978. During

that search, police seized (a) a calendar

a

which contained certain numbers and the

~~

birthday of co-defendant McKenzie (App.

at 44), (b) certain slips of paper with

numbers on them from a car owned and op-

erated by the now-deceased defendant,

Joseph Hazelwood, and (c) a white envelo-

pe, which was attached to Hazelwood's leg

and which also bore pater slips contain-

ing numbers (App. at 124).

(5) Robert E. Fidella, a fingerprint

specialist with the Federal Bureau of

Investigation, admitted that the calendar

and papers which were seized from the bus-

iness premises did not contain the Peti-

tioner's fingerprints. (App. at 162-63.)

(6) William L. Holmes, also an agent

with the Federal Bureau of Investigation,

testified that the slips of paper seized

from the Petitioner's co-defendant,

Joseph Hazelwood, were used in a "numbers"

gambling operation, that the calendar

oS.

contained an entry indicating a winning

slip (App. at 177), and expressed his

opinion that the individual in possession

of the calendar occupied a "managerial

position” in a‘ gambling organization

(App. at 178).

The Government's evidence failed to

establish an essential element of a vio-

lation of 18 U.S.C. Section 1955--that

the alleged "illegal gambling business"

was in "substantially continuous opera-

tion for a period in excess of thirty

days."" 18 U.S.C. Section 1955 (b) (1)

(iii). The testimony of the police of-

ficers at trial established that the

Petitioner and others were under surveil-

lance for a mere 48 days (from December

10, 1977, to January 26, 1978) (App. at

33). Alleged gambling-type activity

(Lowrey placing the brown paper bag in

the Volkswagen van followed by Hazelwood's

=ig.

removal of it) was observed on only five

separate days (December 21, 1977, January

6, 11, 17, 18, 1978) (App. at 34, 37, 39-

41). Thus, it is clear that the only

suspicious activity which the surveilling

officers observed took place between

December 21, 1977, and January 18, 1978-

a period of less than 30 days.

Further, Sergeant Bowling admitted

that on only two of those occasions was

he actually able to determine that Lowrey

had actually placed a brown paper bag in

the vehicle (App. at 63-64). The only

evidence which the Government actually

offered of anyone actually placing a bet

with the alleged “illegal gambling bus-

iness'' was the testimony of the Govern-

ment informant, Robert Prime, who testi-

fied that he had placed two bets with

co-defendant McKenzie at the 2lst Street

Newsstand in January, 1978, (App. at 76).

si Pe

Where the Government's evidence fails

to show that five or more persons were

involved in a gambling operation through-

out a thirty-day period, the defendant's

conviction cannot stand. For example,

in United States v. Gresko, 632 F.2d 1128

(4th Cir. 1980), the court reversed a

conviction for violation of 18 U.S.C.

Section 1955. In that case, the govern-

ment investigation lasted some four months

and the evidence adduced at trial "“con-

sisted primarily of testimony by State

police officers about bets they had

placed in the various gambling establish-

ments". Id. at 1130. The court reversed

the conviction of one defendant because

the evidence demonstrated at most that

"there was only one short period, from

October 31, 1978, to November 11, 1978,

during which as many as three people took

bets at Lou's Place". Id. at 1133.

ai Gs

When compared with the amount of ev-

idence produced in other prosecutions

under the statute, the amount adduced

here was clearly insufficient. Compari-

son with a recent case from the Seventh

Circuit, United States v. Nerone, 563

F. 2d 836 (7th Cir. 1977), cert. denied,

435 U.S. 951 (1978), is indicative. The

court there stated that

"The thirty-day requirement was

satisfied because 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 "sub-

stantially continuous" opera-

tion for the statutory period.

The evidence showed that, with

but three exceptions, Fox's

casino was in operation every

weekend between the beginning

-19-

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 arith-

metical calculations would

support a jury inference that

the games took place on more

than thirty individual cal-

endar 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 Sat-

urday or Sunday nights, during

oft.

F<

the period charged in the in-

dictment. William Roscetti,

a dentist, also testified that

he had gambled in Fox's base-

ment from five to eight times

during the same period."

563 F.2d At 843. In the present case,

the only testimony offered to support

the charge that an "illegal gambling

business" was in operation was that

offered by the Government's informant,

Robert Prime, who testified that he had

placed wagers with co-defendant McKenzie

on two occasions. Further, there was no

evidence offered here which, in the words

of Judge Pell, “would support a jury find-

ing that the (gambling) took place on

more than thirty individual calendar

days."" Id.

It is clear, therefore, that the

Government failed to prove an essential

-21l-

element of the offense charge-that the

alleged "illegal gambling business" was

in "substantially continuous operation

for a period in excess of thirty days".

18 U.S.C. Section 1955 (b) (1) (iii).

In the absence of such proof, the

Petitioner's convictions should be

reversed.

«22

II

THE GOVERNMENT FAILED TO ADDUCE

PROOF SUFFICIENT TO DEMONSTRATE

THAT PETITIONER WAS INVOLVED IN

AN "ILLEGAL GAMBLING BUSINESS".

As noted above, 18 U.S.C. Section

1955 is directed at anyone who ‘conducts,

finances, manages, supervises, directs,

or owns all or part of an illegal gambl-

ing business". 18 U.S.C. Section 1955

(a). “It is participation in the gambl-

ing business that is a federal offense."

Sanabria v. United States, 437 U.S. 54,

70 (1978) (emphasis added). In order

to sustain a conviction for violation

of the statute by operating an "illegal

gambling business" the Government must

prove that there are “at least five

persons who are active in its operation

and share an interest in the success

of the venture”. United States v.

Tarter, 522 F.2d 520, 526 (6th Cir.

1975). The statute is designed to

«2%

include those who perform a ''necessary

function' in the operation of the enter-

prise". United States v.. Clements,

supra, 588 F.2d at 1039 (citations

omitted).

Further, the intent of the legisla-

ture in enacting 18 U.S.C. Section 1955

clearly did not encompass the sort of

activity that the government's evidence

can establish in the case at hand.

The provisions of this

title do not apply to gambl-

ing that is sporadic or of

insignificant monetary pro-

portions. It is intended to

reach only those persons who

prey systematically upon our

citizens and whose syndicated

operations are so continuous and

so substantial as to be of

national concern, and those

~24e

corrupt State and local offic-

ials who make it possible for

them to function.

H.R. Rep. No. 1549, 91st Cong., 2d Sess.

2, reprinted in (1970) U.S. Code Cong.

& Ad. News 4029. The few instances of

suspicious activity alleged by the govern-

ment on the instant facts simply do not

fit within this clear expression of in-

tent. As the cases discussed herein

indicate, the federal courts which have

considered analogous situations have

acted to effectuate this intent by re-

fusing to sustain convictions based

upon such inadequate evidence.

In the present case, the Government

has failed to adduce sufficient evidence

demonstrating the Petitioner's partici-

pation in the alleged "illegal gambling

business"’. The evidence showed that

the Petitioner's now-deceased co-defen-

o9$-

dant, Joseph Hazelwood, had numbers slips

in his possession at the time of the

abovementioned search and seizure of the

premises of Jackson's Used Auto Engines

(App. at 124). The Government offered

evidence to show that on five occasions

Lowrey left a paper bag in the Volkswag-

en van parked outside the premises and

that Hazelwood later retrieved the bag

from that location. (App. at 35-6, 42,

35, 64, 108). The only evidence offered

against Petitioner Jackson was that (1)

he associated with co-defendant Hazel-

wood (App. at 36), and (2) was present

at Jackson's Used Auto Engines on Janu-

ary 26, 1978, when the premises were

searched (App. 161-62). The fingerprint

expert, Robert E. Fidella of the Federal

Bureau of Investigation, testified that

he did not find the fingerprints of the

Petitioner on the calendar seized during

~26-

the abovementioned search.

In short, the evidence offered by

the Government was insufficient to demon-

strate that the Petitioner was "active"

in the operation of the alleged "illegal

gambling business". See United States v.

Tarter, supra, 522 F.2d at 526. There

is no indication that Petitioner Jackson

ever had any involvement with any gambl-

ing activity that might have occurred.

When compared with recent decisions

from other federal courts, it is clear

that the Government did not produce

sufficient evidence to justify Petition-

er's convictions. For example, in

United States v. Clements, supra, the

Fifth Circuit held that there was suffic-

ient evidence to support beyond a reason-

able doubt a jury determination that the

defendant performed a function necessary

to the gambling operation where he (1)

«Te

rented a hotel room in a fictitious name

which was used to conduct the operation,

(2) allowed telephone lines in the room

to be used for gambling and (3) he was

the payee of a check issued in payment

of gambling debts. 588 F.2d at 1039.

On the other’ hand, in United States v.

Campion, 560 F. 2d 751 (6th Cir. 1977),

a prosecution for conducting an illegal

gambling business, the court held that

evidence showing that, on a given day,

the defendant made five telephone calls

reporting race results was insufficient

proof beyond a reasonable doubt that he

was and "integral participant" in the

gambling business. In United States v.

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

the Fifth Circuit reversed a defendant's

conviction under this statute where the

evidence merely demonstrated that one

bookmaker defendant merely discussed the

—s

"line" information with another bookmak-

er defendant. Id. at 1061-62. See also

United States v. Curry, 530 F.2d 636 (5th

Cir.), cert. denied sub nom. Hemingway v.

United States, 429 U.S. 829 (1976)

(defendant's conviction would be reversed

where evidence was insufficient to demon-

strate her participation in illegal gamb1-

ing business).

The evidence in the present case

was insufficient to demonstrate that the

Petitioner conducted, financed, managed,

supervised, directed, or owned all or a

part of the illegal gambling business

which the Government alleged to have

existed here. Therefore, his conviction

should be reversed.

=~ 20

III

THE TRIAL COURT ERRED IN DENYING

PETITIONER'S MOTION FOR A NEW

TRIAL AFTER NEWLY DISCOVERED

EVIDENCE INDICATED THAT THERE

WAS MISCONDUCT ON THE PART OF

THE GOVERNMENT'S INFORMANT.

As was indicated above, the Govern-

ment's informant, Robert G. Prime, testi-

fied that, while working as a taxi driver,

he had transported Lowery from the 2lst

Street Newsstand to Jackson's Used Auto

Engines "on numerous occasions" during

December, 1977, and January, 1978.

(App. at 73). Prime testified that

Lowrey carried a "small paper bag" on

those trips which Lowrey would deliver

to "Jackson Motors". (App. at 74-75.)

Primes's teatimony was crucial to

the Government's case because he was

the only witness to offer testimony

establishing an alleged "link" between

the 2lst Street Newsstand, whose propri-

etress was re McKenzie (App.

at 205) and Jackson's Used Auto Engines.

The existence of such a "link" was essen-

tial to the Government's case because,

without an interrelationship between the

two businesses, the Government could not

prove an essential element of the offense

charged.

As noted above, 18 U.S.C. Section

1955 proscribes the operation of an

"illegal gambling business" which

"involves five or more persons". 18

U.S.C. Section 1955 (b) (1) (ii). The

"five-person" requirement is jurisdic-

tional, United States v. Bourg, 598 F.2d

445, 448 (Sth Cir. 1979), and the jury

is required under 18 U.S.C. Section 1955

to find that five or more persons "were

involved in the gambling business".

United States v. Morris, 612 F.2d 483,

486 n. 5 (10th Cir. 1979). The Govern-

ment alleged the involvement of five

o@ié

persons in the present case: (1) co-de-

fendant McKenzie, proprietress of the 2lst

Street Newsstand; (2) Harvey Nathaniel

Brown, a janitor at the newsstand,

whose fingerprints were found on the

slips of paper which were seized from

co-defendant Hazelwood on January 26,

1978, (App. at 157-58); (3) Edwardo

Lowrey, who is alleged to have carried

a brown paper bag from the 21st Street

Newsstand to Jackson's Used Auto Engines;

(4) Joseph Hazelwood and (5) Petitioner

Jackson, who are connected with Jackson's

Used Auto Engines, Inc.

The courts have held that two sep-

arate alleged gambling operations may

be considered together to satisfy the

jurisdictional five-person requirement;

see generally United States v. Clements,

supra, 588 F.2d at 1037-38, but there

must be a connection or "nexus" between

=32-

them. Id.; United States v. Boyd, 566

F.2d 929, 934-35 (5th Cir. 1978). Here

the testimony of Robert Prime, the Govern-

ment's informant, was essential to estab-

lish such a link and, therfore, satisfy

the five-person requirement.

Edwardo Lowrey, who testified that

he. picked up a package from co-defendant

McKenzie and delivered it to Jackson's

Used Engine Sales (App. at 108-130), had

been promised immunity by the Government

in exchange for testifying. Therefore,

the testimony of Robert Prime was the

only consideration for the alleged link

between the 2lst Street Newsstand and

Jackson's Used Auto Engines.

On February 15, 1980, the Petitioner

was found guilty of violating 18 U.S.C.

Section 1955. Om April 9, i980, at the

sentencing proceedings, counsel for the

Petitioner made an oral motion for a new

«3%~

trial on the basis of newly-discovered

evidence relating to the credibility of

Robert Prime, the Government's informant-

witness. The evidence indicated that,

at a point in time near that when he

testified against the Petitioner, Prime,

who was employed as. a corrections officer,

had admitted making false allegations

concerning charges which he had made

about irregularities at two Virginia

corrections facilities. Counsel for the

Petitioner submitted newspaper articles

documenting this in support of the

motion for new trial. (App. at 236-37.)

The Petitioner's motion was denied by

the trial court (App. at 232.)

Fed. R. Crim. R. 33 provides that

"(t)he court on motion of a defendant

may grant a new trial to him if required

in the interest of justice". To warrant

granting a motion for new trial based on

«Shen

newly-discovered evidence, it must be

shown (1) that the evidence was dis-

covered since the trial; (2) that the

evidence could not have been discovered

earlier with the exercise of due dili-

gence; (3) that the evidence is not mere-

ly cumulative or impeaching; and (4) that

the evidence is so material that it prob-

ably would produce a different verdict.

United States v. Carlone, 603 F.2d 63,

66 (8th Cir. 1979).

These prerequisites have been met in

the present case in light of the facts

that the evidence was discovered after

the trial had ended and counsel for the

Petitioner demonstrated at the hearing

that he had exercised due diligence in

the discovery of the evidence: counsel

had learned of Prime's falsehoods a

April 4, 1980, when co-defendant Hazel-

wood brought the newspaper articles to

oh.

his attention. (App. at 231-32.)

Although the general rule is to the

effect that a showing that a witness has

made untruthful statements subsequent to

a trial is usually not enough to justify

the granting of a new trial under Rule

33, see, e.g., United States v. Garrison,

296 F.2d 461 (7th Cir. 1961), cert. denied,

369 U.S. 804 (1962), in "flagrant cases"

such relief may properly be granted. 2

Wright and Miller, Federal Practice and

Procedure: Criminal Section 557 at 523

(1969).

For example, in Mesarosh v. United

States, 352 U.S. 1 (1956), a prosecution

alleging that defendants had conspired

to violate the Smith Act, this Court held

that false testimony given concurrently

before a Senate Committee by a paid

informer, who has testified for the

Government concerning activities of

- 36-

Communist conspiracy in the Smith Act

trial so "tainted" his trial testimony

as to require a reversal of the defend-

ants' convictions and the granting of a

new trial. As Chief Justice Warren

stated, the informer, by his testimony,

has "poisoned the water in this reservoir,

and the reservoir cannot be cleansed with-

out first draining it of all impurity”.

Id. at 14. This Court ordered that the

convictions be reversed because it could

not ‘be determined conclusively by any

court that (the) testimony was insignif-

icant in the general case against the

defendants". Id. at 10-11.

In Williams v. United States, 500

F.2d 105 (9th Cir. 1974), a narcotics

prosecution, the court ordered that the

defendant was entitled to a new trial by

reason of tainted, material testimony

which had been given by a government

376

agent who was subsequently convicted of

perjury in connection with another inves-

tigation similar in nature and contem-

poraneous in time. The facts indicate

that the government's chief witness was

undercover agent Jackson, who testified

that he met with defendant Williams to

arrange the heroin deal. Agent Watson

(who was subsequently convicted of per-

jury) “served to corroborate Jackson's

testimony in important respects". Id.

at 107. In reversing the defendant's

conviction, Judge Duniway stated:

"Watson was an important witness

in the government's case against

Williams. He provided the only

corroboration of Jackson's tes-

timony that Williams was invol-

ved in the first transaction.

Without his testimony the jury

might not have been convinced

x" =

that there was enough evidence

to find Williams guilty beyond

a reasonable doubt. "Only the

jury can determine what it would

do on a different body of evi-

dence, and the jury can no long-

er act in this case." Mesarash

v. United States, supra, 352 U.S.

oc ic, 77 €.Ce. at 7.

A conviction based substan-

tially upon tainted evidence

cannot stand. Mesarosh v.

United States, supra, 352 U.S.

at 14, 77 S.Ct. at 1. Watson

was the government's agent.

He was charged by the govern-

ment with perjury and convicted

of an act perpetrated in an

investigation similar, in

nature and contemporaneous in

time, to the investigation of

. =

Williams. The government

itself prosecuted Watson and

thereby impugned his integrity

and credibility. Williams

is entitled to a new trial."

United States v. Davis, 10

Cir., 1973, 473 F.2d 1023, 1025.

Id. at 107-08. See also United States

v. Lipowski, 423 F. Supp. 864, 866-67

(D.N.J. 1976).

In the present case, the Government

informant, Robert Prime, was an import-

ant witness in the Government's case

against the Petitioner. His was the

only testimony collaborating the

statements of Edwardo Lowrey (who had

been given immunity from prosecution)

that he had transported a brown paper

bag on several occasions from the 2lst

Street Newsstand to Jackson's Used

Auto Engines. Without his testimony,

-40-

the jury "might not have been convinced,"

Williams v. United States, supra, 500 F.

2d at 107, that there was sufficient

evidence of the alleged conviction

between the two alleged gambling opera-

tions, which would have meant that the

Government's case failed to meet the

five-person requirement of 18 U.S.C.

Section 1955.

Therefore, the newly-discovered

evidence meets the fourth test-"that

the evidence be so material that it

probably would produce a different

verdict,"’ United States v. Carlone,

supra, 603 F.2d at 66, hence, this

Court should find that the trial judge

erred in denying the Petitioner's

motion for a new trial under Fed. R.

Crim. RB. 33.

oth?

CONCLUSION

Based on the foregoing, the Petition-

er prays that a writ of certiorari be

granted.

Respectfully submitted,

( Leth . Kaa . Yee

‘William H. Haboush

Attorney for Petitioner

2120 Staples Mill Road

Richmond, Virginia 23230

(804) 257-7229

oe

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-5052

United States of America,

Appellee,

Vv.

David Carson Jackson,

Appellant.

No. 80-5053

United States of America,

Appellee,

Vv.

Margaret Frances McKenzie,

Appellant.

Appeals from the United States District

Court for the Eastern District of Virginia,

ak%

at Newport News. J.Calvitt Clarke, Jr.,

District Judge.

Argued January 9, 1981

Decided February 13, 1981

Before WINTER, WIDENER, and SPROUSE,

Circuit Judges.

Alvin B. Fox (Louis Ellenson on brief)

and William H. Haboush (on brief) for

Appellant; Raymond A. Jackson, Assistant

U.S. Attorney (Justin W. Williams, U.S.

Attorney, Jeffrey L. Tarkenton, Third

Year Law Student on brief) for Appellee.

PER CURIAM:

Defendants were convicted of operat-

ing an illegal gambling business in

violation of 18 U.S.C. Section 1955

(1976). They appeal contending that

the evidence was legally insufficient

to support the verdicts and especially

that the jurisdictional requirements

of Section 1955 were not proved. They

also claim reversible error in the

district court's denial of their motion

for a new trial based upon newly dis-

-44-

covered evidence. We affirm.

We have examined the a and

we are satisfied that the jurisdictional

requirements of Section 1955 were met.

Viewed in the light most favorable to

the government, the evidence showed that

defendants (a) conducted a numbers game

in violation of state law, (b) involving

five or more persons who participated

in the enterprise as managers, owners or

persons conducting operations, and (c)

that the operation was substantially

continuous for a period in excess of

\thirty days. Thus the guilty verdicts

had a sound evidentiary and jurisdiction-

al base.

The newly discovered evidence, at

most, constituted general impeachment

of a government informer. A new trial

was not required. See United States v.

McCoy, 478 F.2d 846 (4 Cir. 1973).

AFFIRMED.

ees

CERTIFICATE

In accordance with Rule 33 of the

Rules of the Supreme Court of the United

States, I hereby certify that I have

this the 1Z+4 day of March, 1981, filed

the required copies of Petitioner's

petition for Writ of Certiorari in the

Clerk's Office in Washington, D.C. and

have mailed the required copies of said

petition for Writ of Certiorari to

Raymond A. Jackson, Assistant United

States Attorney, P.O. Box 60, Norfolk,

Virginia, 23501.

‘William H. Haboush

Attorney for Petitioner

-46-