Petition — James Abraham v. United States
Supreme Court brief1981
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Office -Supreme Court, U.S.
NO. FILED
in the MAY 26 1981
LEXANDER a STEVAS,
Supreme Court
of the ;
United States
OCTOBER TERM, 1980
JAMES ABRAHAM,
Petitioner,
v8.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT
ALBERT J. KRIEGER
ALBERT J. KRIEGER, P.A.
Attorney for Petitioner Abraham
1428 Brickell Avenue,
Suite 500
Miami, Florida 33131
(305) 377-0800
QUESTIONS PRESENTED
1. Whether it is fundamentally unfair to permit
the government to cross-examine a character witness
about an alleged specific instance of misconduct, when
claims were made that the allegation was not true and
the government had not and could not establish by
probative, extrinsic evidence that the misconduct actually
occurred?
2. Whether a mistrial should have been granted —
or at least a curative instruction given—once it was
established that the alleged misconduct asked about in
open court had not occurred? }
TABLE OF CONTENTS
QUESTIONS PRESENTED ............
TABLE OF AUTHORITIES ............
SURDPIGUEIN 66 0ssccdcwecusvexenaeh
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .............
ADOPTION OF CO-DEFENDANTS’
PUREEBOEUD 0 sccvccsccctesgeseraessas
STATEMENT OF THE CASE
Nature of the Case and its Disposition
Statement of the Facts .............
REASON FOR GRANTING THE WRIT
This Court ought to grant certiorari in order
to determine whether due process demands
the judicial adoption of limitations upon the
discretion of the trial judge in permitting cross-
examination pursuant to Rule 405(a), Federal
Rules of Evidence, as the Fifth and District of
Columbia Circuits have already done.
CONGEARIOONE 6s cccnscdvccntvensnuees
caaewans 13
TABLE OF CONTENTS (Continued)
Page
CERTIFICATE OF SERVICE ...............-. 20
APPENDIX:
Appendix A: Judgment and Probation/Coti-
Appendix B:
Appendix C:
Appendix D:
mitment Order for James
Abraham dated July 10,1979 .. App. 2
Opinion of the United States
Court of Appeals for the Sixth
Circuit dated March 5, 1981
affirming James Abraham's
eS ee Pee ee App. 5
Petition for Rehearing on behalf
of James Abraham filed with
the United States Court of
Appeals for the Sixth Circuit
on or about March 18, 1981 ....App. 28
Order of the United States Court
of Appeals for the Sixth Circuit
denying James Abraham's
Petition for Rehearing dated
pg er reer App. 40
TABLE OF AUTHORITIES
Page
Michelson v. United States,
335 U.S. 469 (1948) ............ 11, 13, 14, 15, 16
United States v. Apfelbaum,
ee We Oe eG WOOD gov vce cercecccsens 16
United States v. Bright,
588 F.2d 504 (5th Cir. 1979). ................ 15
United States v. Burgard,
551 F.2d 190 (8th Cir. 1977)................. 16
United States v. Bynum,
566 F.2d 914 (5th Cir. 1978) ................. 15
United States v. Edwards,
549 F.2d 362 (Sth Cir. 1977) ..............08- 15
United States v. Evans,
569 F.2d 209 (4th Cir. 1978) ................. 16
United States v. Evans,
542 F.2d 805 (10th Cir. 1976) ................ 16
United States v. Goldfarb,
643 F.2d 422 (6th Cir. 1981) ................. 3
United States v. Haldeman,
Sp Pp tet OS | 16
iv
TABLE OF AUTHORITIES (Continued)
United States v. Kirk,
584 F.2d 773 (6th Cir. 1978) .................
United States v. Lewis,
482 F.2d 682 (D.C. Cir. 1978) ................
United States v. Morgan,
G64 F.2d $1 Gd Cir. 1977) .. 0... ceccsccccece
United States v. Nace,
561 F.2d 763 (9th Cir. 1977) ...............5.
United States v. Payne,
635 F.2d 643 (7th Cir. 1980) .................
United States v. Reese,
568 F.2d 1246 (6th Cir. 1977) ................
United States v. Renfro,
620 F.2d 497 (5th Cir. 1980) .................
United States v. Wells,
437 F.2d 1144 (6th Cir. 1971)................
United States v. Wells,
525 F.2d 974 (5th Cir. 1976) .................
ADDITIONAL AUTHORITIES
Page
Constitutional Provisions:
Fifth Amendment to the United States
CU nok nWiv 4 00's sn 804040060040. 18
Statutory Provisions:
eee eee 5
18 US.C. Section 1068 .......cccccccccceeee 5
28 U.S.C. Section 1254 (1).................4-. 3
Rules:
Rule 403, Federal Rules of Evidence ........ 16
Rule 405(a), Federal Rules of Evidence .. 8, 9, 13,
14, 15, 16, 17, 18
vi
NO.
in the
Supreme Court
of the
Rnited States
OCTOBER TERM, 1980
JAMES ABRAHAM,*
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
TO THE HONORABLE CHIEF
JUSTICE OF THE UNITED STATES
AND THE ASSOCIATE JUSTICES OF THE
SUPREME COURT OF THE UNITED STATES
Your Petitioner, JAMES ABRAHAM, prays that a
writ of certiorari issue to the United States Court of
Appeals for the Sixth Circuit to review its decision
entered on the 5th day of March, 1981, affirming his
conviction under 18 U.S.C. Section 1952, and 18 U.S.C.
Section 371.
*Charles Goldfarb, James Tamer, Edward Monazym,
and the Aladdin Hotel Corporation, were also appellants
in the case below from which this petition has been
taken.
JURISDICTION
The opinion of the United States Court of Appeais
for the Sixth Circuit affirming Mr. Abraham’s conviction
is reported at 643 F.2d 422 (6th Cir. 1981). Jurisdiction
of this Court is invoked under 28 U.S.C. Section 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution
Fifth Amendment:
No person shall .. . be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use without
just compensation.
Rule 403, Federal Rules of Evidence:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation
of cumulative evidence.
Rule 405(a), Federal Rules of Evidence:
Reputation or opinion. In all cases in which evidence
of character or trait of character of a person is
admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion.
On cross-examination, inquiry is allowable into relevant,
specific instances of conduct.
ADOPTION OF CO-DEFENDANTS’ PETITIONS
Petitioner, James Abraham, hereby adopts and
incorporates herein by reference, each and every Fetition
for writ of certiorari filed with this Court by his
co-defendants-appellants in the courts below, to review
the Sixth Circuit opinion which affirmed his conviction.
STATEMENT OF THE CASE
Nature of the Case and its Disposition
In August of 1978, Petitioner James Abraham was
indicted along with Charles Goldfarb, James Tamer,
Edward Monazym, and the Aladdin Hotel Corporation,
of violating 18 U.S.C. Section 1952 (the “Travel Act”),
and of conspiring to violate the Travel Act in violation
of 18 U.S.C. Section 371.
The indictment charged Goldfarb and Tamer as
having conducted “the ownership, operation, conducting
and carrying on of gaming operations of a Las Vegas,
Nevada gaming casino, the Aladdin Hotel and Casino”
in violation of Nevada statutes and regulations through
the use of interstate telephone lines between Detroit,
Michigan and Las Vegas, Nevada. Petitioner, James
Abraham—the executive vice-president and general
manager of the Aladdin Hotel— was charged in a separate
count of aiding and abetting the activities of Goldfarb.
All of the named defendants were charged in a conspiracy
count. On March 13, 1979, Abraham was convicted as
charged after a jury trial. (App. A).
Notice of appeal was timely filed and on March 5,
1981, the United States Court of Appeals for the Sixth
Circuit affirmed his conviction. (App. B). A timely Petition
for Rehearing was filed in the United States Court of
Appeals for the Sixth Circuit, (App. C) and on April 1,
1981, the Petition was denied (App. D).
Statement of the Facts
Mr. Abraham sets forth the following facts relative
to the issues he separately raises in the instant Petition.
Mr. Abraham’s conviction rests solely upon evidence
that by extending credit and complimentary privileges
(“comps”) as part of his duties and responsibilities, as a
key employee of the Aladdin Hotel Corporation, he
aided and abetted the exercise of control by Goldfarb.
This evidence was contained in seven short telephone
calls between Mr. Abraham and Mr. Goldfarb, all made
in the ordinary course of business. All records and
financial entries reflecting such activities, as required
by law, were retained and available for review. Absent
was any evidence of illegal intent.
Jeffrey Silver, a witness called by the government,
testified that the Nevada Gaming Commission recognized
the widespread, well accepted method of promoting
business by the use of credit extensions and “comps”
and left the decision of how and when such promotional
methods should be used to the casino owners and certain
employees.
In an attempt to seek new customers and references
from old customers, the Aladdin Hotel adopted a policy
of personal contact between the executives and the
customers. Consistent with this policy, Mr. Abraham
maintained personal contact with Mr. Goldfarb, who
was a valued Aladdin client. Mr. Goldfarb was a heavy
gambler at the Aladdin Hotel casino. He had also given
the Aladdin Hotel customer references. In fact, the
Aladdin Hotel reaped nearly one half million dollars of
profits from Mr. Goldfarb’s recommendations. Further,
the Aladdin Hotel employed Mr. Goldfarb’s bonding
agency to write performance bonds for the hotel's
entertainment department. Clearly Mr. Abraham's
personal conduct with Mr. Goldfarb made good business
sense. (Tr. 1344-1356, 1452, 1529, 1533, 1649-1650, 1668,
1703, 2081).
The record in the court below affirmatively
demonstrates that all financial records and entries
required by law were kept, and there was no concealment
from the authorities of extensions of credit or
complimentary privileges. (Tr. 1344, 1440-1441).
Standing alone and untampered by improper
innuendo, this evidence would have been insufficient
to cause a reasonably-minded jury to convict.
The issue Mr. Abraham separately requests this
Court to review regards the government's cross-
examination at trial of a defense character witness,
Carl E. Lovell, Jr. Late in the case, the government
irreparably prejudiced Mr. Abraham by injecting the
factually incorrect and unsupportable innuendo which
caused the jury to find Mr. Abraham guilty.
On February 20, 1979, the government announced
at sidebar (Tr. 3239) its intention to inquire upon cross-
examination of defense witness Carl E. Lovell, whether
or not he knew about a check made payable to Mr.
Abraham which the government alleged represented a
“bribe” to shopkeepers for the granting of leased space
at the Aladdin. Vigorous objections and legal arguments
were advanced by Mr. Abraham's counsel that day at
sidebar (Tr. 3239-3243) and later in chambers (Tr. . 272-3276,
and 3288-3330). In addition, on February 21, 1979, the
trial court heard additional legal argument (Tr. 3338-3356)
and allowed the government to voir dire Mr. Lovell,
outside the hearing of the jury (Tr. 3356). The court —
although from the outset acknowledging the significant
prejudice such question would produce considering the
slim evidence against Mr. Abraham (Tr. 3234-3243)
—concluded that the government's insistence that it
was acting in good faith was sufficient to permit the
question under Rule 405(a), Federal Rules of Evidence
(Tr. 3338-3343). Further, the court quieted its expressed
fears of prejudicial effect by commenting that at least
“the cross-examination of the character witness is as to
the character witness’ credibility, not as to the conduct
of the defendant.” (Tr. 3343).
The voir dire disclosed that Mr. Lovell would testify
that he did not know nor had he heard that payments
personally were made to Mr. Abraham in exchange for
the granting of leases to shopkeepers at the Aladdin.
(Tr. 3857-3358). Mr. Abraham's counsel then, in support
of this continuing objection (Tr. 3359-3379), announced
to the court at this time that during the previous —
twelve hours he was able to ascertain the true state of
affairs regarding this check (Tr. 3368), matters to which
Mr. Lovell would be incapable of testifying. Nevertheless,
without any further basis than the mere existence of a
$1,000 check made payable to Mr. Abraham, the court
allowed the government to ask this inflammatory and
provocative question in the presence of the jury. The
inflammatory nature of the question is best demonstrated
by the government's own words: “I submit [this] shows
dishonesty, misrepresentation, fraud on the corporation.”
(Tr. 3273). The exact words of the question are as follows
(Tr. 3386):
Q. Then I will ask you did you know or have
you heard that in order for a shop, or store to
do business with the Aladdin Hotel Corporation,
that is, to lease space from the Aladdin Hotel
Corporation for a shop or a store inside the
casino and hotel area, that payments were
made personally to Mr. Abraham, not to the
corporation, in exchange for getting that space?
The court allowed this question to be asked before the
jury pursuant to the authority of Rule 405(a), Federal
Rules of Evidence, even though voir dire had disclosed
that Mr. Lovell would answer that he had not heard or
did not know of such activity, and in spite of the fact
that defense counsel had contended that such misconduct
had not occurred. Mr. Abraham's counsel immediately
moved for a mistrial (Tr. 3388). The motion was denied
lid).
The following day —the third day which had been
consumed by this matter—the government made a
proffer to the court outside the hearing of the jury of
further testimony by a witness named Ray Warren
upon the subject of Mr. Abraham's alleged misconduct
in extending leases for space (Tr. 3436-3452). Mr. Warren's
testimony failed to support the government's contention
that the $1,000 payment represented any misconduct
on Mr. Abraham's part.
Further, by this time defense counsel was able to
present two witnesses, Messrs. Johnson (Tr. 3467-3477),
and Saputo (Tr. 3477-3489), whose testimony was also
heard by the court outside the hearing of the jury.
Both Messrs. Johnson and Saputo had personal knowledge
of the events leading up to and concerning the payment,
purpose, and disbursement of the $1,000 check. They
testified that (1) the check was not generated for Mr.
Abraham’s gain; (2) in fact the check was for payment
to Aladdin Hotel personnel in settlement of claims
which they believed they had arising from the new
ticketing operation which was just establishing business
in the hotel; and (3) it was within Mr. Abraham's scope
of responsibility to negotiate the lease of the ticketing
agency and the settlement of the claim.
After hearing this testimony outside of the presence
of the jury, the court indicated that the charge of
“bribe” was without any basis in fact. For this reason,
the government, agreeing with the court, moved to
strike its question (Tr. 3492). Mr. Abraham’s counsel
refused to join in this motion to strike, but moved a
second time for a mistrial. (Tr. 3388 and 3492-3493).
After these motions were denied (Tr. 3388 and 3493), he
requested the following curative instruction (Tr. 3495):
I instruct you that the the final series of questions
Mr. Hunterton asked of Mr. Lovell concerning
the payment allegedly made to Mr. Abraham
by persons seeking space at the Aladdin Hotel
has been withdrawn at the request of the
government. I have conducted a hearing and I
heard witnesses and found .. . that there was
no basis for those questions.
The court refused fid)/, but merely told the jury
(Tr. 3500) that the question was withdrawn by the
government and should be disregarded. The jury was
10
never told why the question had been withdrawn: that,
in fact, there was no factual foundation for.it whatsoever.
In affirming Mr. Abraham’s conviction, the United
States Court of Appeals for the Sixth Circuit stated as
follows:
Error was assigned as to the cross-examination
of the character witness Lovell, a former City
Attorney in Las Vegas, who volunteered that
Abraham enjoyed a good reputation with
Nevada's “law enforcement community.” He
was asked upon cross-examination whether he
had heard that in order for a shop or store to
do business with Aladdin Hotel Corporation
to obtain store space in the area that payments
were made personally to Abraham, not to the
corporation. Lovell answered, “No I don’t know
that.” Before asking the question, at a sidebar
conference with the court not in the presence
of the jury, the government produced evidence
showing justification namely, the cancelled check
and the court permitted the question to be
answered and gave proper instruction to the
jury as to its purpose. Further proceedings
developed thereafter including rebuttal and
surrebuttal evidence and when it appeared to
everyone that this was creating a trial within
a trial, the government moved to withdraw
the question, in which counsel for Abraham
joined. The trial court granted the motion finding
that “. . . the spirit of Michelson v. United
States, 335 U.S. 469 (1948) had been observed
and the prejudice if any was dissipated in
Abraham’s favor.” We find no abuse of discretion
11
on the part of the District Judge in his handling
of these issues.
(App. B).
As the above facts demonstrate, the Sixth Circuit
was under a misapprehension of the facts. Upon Petition
for Rehearing, Mr. Abraham brought to the attention
of the United States Court of Appeals for the Sixth
Circuit panel the following misconceived conclusions:
(1) that the further evidence of rebuttal and surrebuttal
were on voir dire outside the presence of the jury (a
request that the jury be allowed to hear this evidence
was denied, Tr. 3490); (2) that Mr. Abraham did not join
the motion to strike; and (3) that he repeatedly requested
further relief, including the granting of a mistrial (Tr.
3388 and 3492-3493) and a curative instruction after the
withdrawal of the question (Tr. 3495). (App. C).
Nevertheless, the Court refused to rehear the matter.
(App. D).
Thus, ali the jury ever heard regarding this matter
was the startling and defamatory question itself, and
some two days later, a one sentence statement by the
trial judge that the question had been withdrawn by
the government. The jury was left by the court’s silence
to ponder upon the full extent of Mr. Abraham’s request
for bribe money. Thus, the effect of the asking of the
question, the giving of a negative response, and later,
the withdrawal of that line of inquiry by the government,
was to (1) improperly permit the asking of the question
and the negative response to discredit Mr. Lovell’s
knowledge of Mr. Abraham’s reputation in the community,
and (2) to leave in the jury’s mind the erroneous belief
12
that Mr. Abraham engaged in improper - dealing for
his own profit.
REASON FOR GRANTING THE WRIT
THIS COURT OUGHT TO GRANT
CERTIORARI IN ORDER TO DETERMINE
WHETHER DUE PROCESS DEMANDS THE
JUDICIAL ADOPTION OF LIMITATIONS
UPON THE DISCRETION OF THE TRIAL
JUDGE IN PERMITTING CROSS-EXAMIN-
ATION PURSUANT TO RULE 405(a),
FEDERAL RULES OF EVIDENCE, AS THE
FIFTH AND DISTRICT OF COLUMBIA
CIRCUITS HAVE ALREADY DONE.
We request this Court grant certiorari in this case
in order to determine whether procedural safeguards
should be announced to guide a judge’s discretion in
permitting the cross-examination of a character witness
under Rule 405(a), Federal Rules of Evidence.
As the Advisory Committee Notes to Rule 405(a)
disclose, this Rule sought to codify this Court’s holding
in Michelson v. United States, 335 U.S. 469, 479 (1948):
The price a defendant must pay for attempting
to prove his good name is to throw open th
entire subject which the law has kept closed
for his benefit and to make himself vulnerable
where the law otherwise shields him. . . . [H]is
own [character] witness is subject to cross-
13
examination as to the content and extent of
the hearsay on which he bases his conclusions,
and he may be required to disclose rumors
and reports that are current even if they do
not affect his own conclusion. It may test the
sufficiency of his knowledge by asking what
stories were circulating concerning events, such
as one’s arrest, about which people normally
comment and speculate. Thus, while the law
gives defendant the option to show as a fact
that his reputation reflects a life and habit
incompatible with commission of the offense
charged, it subjects his proof to tests of
credibility designed to prevent him from
profiting by a mere parade of partisans.
Although Rule 405(a) codified this cross-examination
right, it did not further codify in express terms the
protective measures mentioned with approval in
Michelson; specifically, that there the trial court
took pains to ascertain, out of the presence of
the jury, that the target of the question was
an actual event, which would probably result
in some comment among acquaintances if not
injury to defendant’s reputation. He satisfied
himself that counsel was not merely taking a
random shot at a reputation imprudently
exposed or asking a groundless question to
waft an unwarranted innuendo into the jury
box.
Id., at 480-481.
14
Many Circuits have seemingly overlooked these
admonitions and have rested upon the bare words of
the rule as permitting unfettered and unregulated cross-
examination. Thus, these Circuits, among which is the
Sixth Circuit, seemingly believe that by promulgation
of Rule 405(a), Federal Rules of Evidence, the legislature
had by implication partially overruled the holding in
Michelson.
The Fifth Circuit however, has continued to
acknowledge those protective measures by holding that
there are:
two important limitations upon judicial discretion
in admitting inquiries concerning such prior
misconduct: First, a requirement that the
prosecution have some good faith factual basis
for the incidents inquired about and second, a
requirement that the incidents inquired about
are relevant to the character traits involved
at trial.
United States v. Wells, 525 F.2d 974, 976-977 (5th Cir.
1976). Accord, United States v. Renfro, 620 F.2d 497,
501 (5th Cir. 1980); United States v. Bright, 588 F.2d
504, 512 (5th Cir. 1979); United States vu. Bynum, 566
F.2d 914, 919 (5th Cir. 1978); United States v. Edwards,
549 F.2d 362, 367 (5th Cir. 1977).
The District of Columbia Circuit also has judicially
imposed limitations upon questions regarding specific
instances of conduct on cross-examination pursuant to
Rule 405(a), by holding that:
15
The discretion which trial judges are thus
summoned to exercise is an informed discretion
— one which takes into account all relevant
factors deserving of consideration. The
discretionary function is aborted if the judge
acts without the information essential to
comprehension and treatment of those factors.
* * *
Moreover, as we have said, the ruling necessitated
a careful balance of probative value in prejudice
and there was no indication of such process
here.
United States v. Lewis, 482 F.2d 632, 644-645 (D.C. Cir.
1973). Thus, in the District of Columbia Circuit, the
trial court’s discretion in permitting cross-examination
under Rule 405(a) must be guided by the appiication of
Rule 403, Federal Rules of Evidence. United States v.
Haldeman, 559 F.2d 31, 91 (D.C. Cir. 1976).
These two Circuits are the only Circuits in tire
federal system that recognize the application of these
limitations — first set forth in Michelson v. United
States, id., — to the use of cross-examination of character
witnesses about specific instances of conduct. See United
States v. Morgan, 554 F.2d 31 (2d Cir. 1977); United
States v. Apfelbaum, 621 F.2d 62 (3d Cir. 1980); United
States v. Evans, 569 F.2d 209 (4th Cir. 1978); United
States v. Payne, 635 F.2d 643 (7th Cir. 1980); United
States v. Burgard, 551 F.2d 190 (8th Cir. 1977); United
States v. Nace, 561 F.2d 763 (9th Cir. 1977); United
States v. Evans, 542 F.2d 805 (10th Cir. 1976).
16
Likewise, the Sixth Circuit has failed to set forth
protective limitations upon a trial court's discretion in
permitting such cross-examination. See United States
v. Kirk, 584 F.2d 773 (6th Cir. 1978); United States v.
Reese, 568 F.2d 1246 (6th Cir. 1977); United States v.
Wells, 437 F.2d 1144 (6th Cir. 1971). The only protection
the Sixth Circuit has extended is its suggestion in
United States v. Reese, 568 F.2d 1246 (6th Cir. 1977),
that voir dire of the witness to determine the validity
of the rumors — prior to the question being asked in
the presence of the jury — would be the “better practice,”
but the exercise of the judge's discretion is paramount.
If the “better practice” had been followed here,
the overwhelming prejudice resulting from inadmissible
testimony would not have infected this trial. Once Mr.
Abraham was given adequate opportunity to refute by
witnesses the government's theory of the $1,000 check,
it became glaringly clear that there was no basis in fact
for believing that he had engaged in any impropriety
or misconduct. The check represented no evidence of
any instance which would have tainted Mr. Abraham's
reputation in the community, and accordingly was also
not evidence that could affect the credibility of his
character witness, Mr. Lovell. From the start it never
appeared that the $1,000 check, even if the government's
theory had proved correct, concerned any rumor about
which his friends and acquaintances might know or
have heard. Thus, had the limitations which the Fifth
Circuit and the District of Columbia Circuits impose
upon Rule 405(a) cross-examination been applied by the
trial court in this case, the question would never have
been permitted to be asked. Once asked, applying those
selfsame limitations would have mandated the granting
17
of the defendant's mistrial motion, or at least the curative
instruction he requested the court to give the jury
once the question was withdrawn.
We request this Court grant certiorari in order to
give us the opportunity to urge that such limitations as
imposed by the Fifth Circuit and the District of Columbia
Circuit be adopted as due process limitations upon the
trial court's discretion in permitting cross-examination
of character witnesses pursuant to Rule 405(a), Federal
Rules of Evidence and the Fifth Amendment to the
Constitution of the United States. We also request that
certiorari be granted in order that this Court may do
justice by exercising its supervisory powers to overturn
this conviction and grant a new trial.
18
CONCLUSION
For all the above and foregoing reasons, James
Abraham requests this Court grant Certiorari.
Respectfully submitted,
(ALBEN
ALBERT J. KRIEGER
Attorney for Petitioner Abraham
1428 Brickell Avenue, Suite 500
Miami, Florida 33131
(305) 377-0800
19
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that one copy of the foregoing
Petition For Writ of Certiorari was mailed to the following
on this 22 day of May, 1981.
C. STANLEY HUNTERTON
Special Attorney
Las Vegas Strike Force
US. Dept. of Justice
300 Las Vegas Blvd. S.
Rm, 4523
Las Vegas, Nevada 89101
WADE H. McCREE, JR.
Solicitor General of the United States
Washington, D.C. 20530
CLYDE B. PRITCHARD, ESQ.
1930 Buhl Building
Detroit, Michigan 48226
DEDAY LaRENE, ESQ.
1500 Buhl Building
Detroit, Michigan 48226
NEAL H. FINK, ESQ.
1500 Buhl Building
Detroit, Michigan 48226
NORMAN LONDON, ESQ.
1600 Boatmen’s Tower
100 No. Broadway
St. Louis, Missouri 63102
(ALBERT J. KRIEGER
ALBERT J. KRIEGER
21
Appendix
Appendix A:
Appendix B:
Appendix C:
Appendix D:
INDEX TO APPENDIX
Page
Judgment and Probation/Com-
mitment Order for James
Abraham dated July 10,1979 .. App. 2
Opinion of the United States
Court of Appeals for the Sixth
Circuit dated March 5, 1981
affirming James Abraham's
CONVENOR oo oecc:kvcnneedaxes App. 5
Petition for Rehearing on behalf
of James Abraham filed with
the United States Court of
Appeals for the Sixth Circuit
on or about March 18, 1981 ... . App. 28
Order of the United States Court
of Appeals for the Sixth Circuit
denying James Abraham's
Petition for Rehearing dated
ADCE 1, THEE. 5 60 Kc Heausensres App. 40
App. 1
APPENDIX A
[FILED JULY 10, 1979]
United States District Court
THE EASTERN DISTRICT OF MICHIGAN
United States of America
Vs.
JAMES ABRAHAM
Defendant
DOCKET NO. 8-80572-03
JUDGMENT AND PROBATION/
COMMITMENT ORDER
In the presence of the attorney for the government
the defendant appeared in person on this date July 9,
1979.
WITH COUNSEL Albert Krieger/David F. DuMouchel.
There being a finding/verdict of GUILTY. of counts
three and four of the indictment.
Defendant has been convicted as charged of the
offense(s) of conspiracy to violate and violation of the
Travel Act, United States Code, Title 18, Sections 371
and 1952.
App. 2
The court asked whether defendant had anything
to say why judgment should not be pronounced. Because
no sufficient cause to the contrary was shown, or appeared
to the court, the court adjudged the defendant guilty
as charged and convicted and ordered that: The defendant
hereby committed to the custody of the Attorney General
or his authorized representative for imprisonment for
a period of three (3) years concurrent on each count; it
is further ordered that all but the first ninety (90) days
of this sentence be suspended, and that the defendant
be placed on two (2) years probation following his period
of custody. As a special condition of his probation,
defendant is ordered to pay a fine of two thousand five
hundred dollars ($2,500.00) on each count.
Defendant is continued on his bond until notified
to report to the designated facility by Frank Uzzo,
Bureau of Prisons Representative in Detroit, Michigan.
In addition to the special conditions of probation
imposed above, it is hereby ordered that the general
conditions of probation set out on reverse side of this
judgment be imposed. The Court may change the conditions
of probation, reduce or extend the period of probation,
and any time during the probation period or within a
maximum probation period of five years permitted by
law may issue a warrant and revoke probation for a
violation occurring during the probation period.
The court orders commitment to the custody of
the Attorney General and recommends, the program
at the West Glen Center on Webster Street in North
Las Vegas, Nevada.
App. 3
It is ordered that the Clerk deliver a certified
copy of this judgment and commitment to the US.
Marshal or other qualified officer.
SIGNED BY USS. District Judge John Feikens,
Date July 10, 1979.
App. 4
APPENDIX B
Nos. 79-5255, 79-5317, 79-5318, 79-5319, 79-5320
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNriTED STATES OF AMERICA,
Plaintiff-Appellee,
APPEAL from the
United States District
Cuartes Goutprars, JAMES TAMER,' (Court for the Eastern
JamMes ABRAHAM, Epwarp Mona-| _ pjictrict of Michigan.
ZYM, AND THE ALADDIN HoTEL Cor-
PORATION,
V.
Defendants-Appellants.
Decided and Filed March 5, 1981.
Before: Weick, LiveLy and Brown, Circuit Judges.
WEICK, Circuit Judge. Appellants Charles Goldfarb and
James Abraham appeal from judgments of conviction entered
upon jury verdicts of guilty of the substantive offense pre-
scribed by the Travel Act, 18 U.S.C. §1952.' All of the
118 U.S.C. § 1952 provides in pertinent part that:
(a) Whoever travels in interstate or foreign commerce or
uses any facility in interstate or foreign commerce, including
the mail, with intent to—
s . 2
(3) ... promote, manage, establish, carry on, or facilitate
the promoticn, management, establishment, or carrying on, of
any unlawful activity.
and thereafter performs or attempts to perform any of the
acts specified in subparagraphs (1), (2), and (3) shall be
App. 5
2 United States v. Goldfarb, ci al. Nos. 79-5255, 79-5317-20
appellants appeal from judgments of conviction for conspiracy
to violate the Travel Act, 18 U.S.C. § 371.2? The appeals were
consolidated for oral argument.
The appellants raise a number of issues on appeal® in their
fined not more than $10,000 or imprisoned for not more than
five years, or both.
(b) As used in this section “unlawful activity” means (1) any
business enterprise involving gambling . . . in violation of the
laws of the State in which they are committed or of the
United States, ...
218 U.S.C. § 371 provides:
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or
any agency thereof in any manner or for any purpose, and
one or more of such persons do any act to effect the object
of the conspiracy, each shall be fined not more than $10,000
or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object
of the conspiracy, is a misdemeanor only, the punishment for
such conspiracy shall not exceed the maximum punishment pro-
vided for such misdemeanor.
3These include the following:
(a) Appellant Tamer raises issues dealing with the denial of
his right to a unanimous verdict, the trial court’s failure to ex-
clude certain evidence, the court’s instructions to the jury and
denial of his motion to suppress.
(b) Aladdin contends that the conspiracy against it was a legal
and factual impossibility; that the indictment should have been
dismissed for vagueness or in the alternative that the court
erred in failing to grant the motion for a bill of particulars;
and that the court erred in failing to grant its motion for sev-
erance.
(c) Abraham contends that the evidence against him was
insufficient to support his conviction; that certain evidence of
an uncharged conspiracy should not have been admitted; that
certain ‘n camera proceedings conducted to the exclusion of
Abraham constitute reversible error; and that he was entitled
to a mistrial as a result of the prosecution’s allegedly irrelevant
and prejudicial questioning of a character witness.
(d) Monazym challenges the sufficiency of the evidence against
him; alleges the existence of multiple conspiracies and preju-
dicial variance; and claims violations of his 6th Amendment
right to counsel as a result of the in camera proceedings which
were conducted to his exclusion.
(e) Other aspects of the “common argument” involve variance
and amendment of the indictment, and misstatements and mis-
constructions of Nevada statutes and regulations.
(f) Each appellant expressly adopts the arguments of his co-
App. 6
Nos. 79-5255, 79-5317-20 Uni‘ed States v. Golu,urb, et al. 3
separate briefs. Each appellant assigns errors which pertain
specifically to the government's case against him, and the
appellants together present a number of common arguments.
One such common argument has several facets and is variously
formulated by each appellant. It relates to the treatment by
the court of Gaming Regulations promulgated by the Nevada
Gaming Commission pursuant to statutory authority, viola-
tions of which appellants claim do not constitute unlawful
activity as prohibited by the Travel Act.
District Judge Feikens carefully considered all of these
issues in his “Opinion Denying Post Trial Motions” for judg-
ments of acquittal, new trial, and arrest of judgment. App.
438-458. We agree with his decision and affirm the judgments
of conviction for the reasons set forth therein on which we
will elaborate hereinafter.
Judge Feikens denied a pretrial motion of the defendants
to dismiss the indictment in an opinion reported in United
States v. Goldfarb, 464 F. Supp. 565 (E. D. Mich. 1979) in
which he ruled upon the constitutionality of the Nevada Gam-
ing Control Act and held it was not unconstitutional as being
violative of the due process rights of defendant Goldfarb who
was denied a gaming license.
In these appeals, the parties have filed four volumes of
appendices, 4,000 pages of transcripts, and tapes recording
conversations played for the jury but not included in the
transcripts.
Mostly issues of law are raised in the briefs. The brief of
Goldfarb’s counsel commendably states: “The sufficiency of
the evidence to sustain the jury verdict is not in question here.”
Goldfarb had a remedy in the state court of Nevada which
he invoked to compel the issuance of a license to him but he
avpellants to the extent they apply pursuant to the Federal
Rules of Appellate Procedure. Rule 28(i).
All of these issves were carefully considered by District Judge
Feilrens in his “Opinion Denying Post Trial Motions” for judg-
—_ of acquittal, new trial. and arrest of judgment. App. 438-
App. 7
4 United States v. Goldfarb, ct al. Nos. 79-5255, 79-5317-20
dismissed the suit. The trouble here is that Goldfarb and
the other defendants, by concealment and violation of Nevada
statutes and their implementing regulations authorized by the
statutes, were actually engaged in the illegal unlicensed man-
agement, maintenance, control and operation of the hotel and
casino.
I
Defendant-appellant Charles Goldfarb was a bondsman who
resided in Birmingham, Michigan. In 1971, he and a small
group of investors purchased the Aladdin Hotel and casino,
located in Las Vegas, Nevada, which at that time was owned
by the Recrion Corporation. Goldfarb then applied to the
State Gaming Control Board/ Nevada Gaming Commission for
licensure as a stockholder-officer of the new corporation,
Aladdin Hotel Corporation. His request was denied when
the Nevada Gaming Commission determined that he had an
“unsuitable background and unsuitable associations.” Gold-
farb then divested himself of his eight percent (8%) interest
in the hotel-casino. He later acquired an option to purchase
stock from a licensed stockholder of the new corporation and
reapplied for a stockholder’s license. That application is still
pending and has not been ruled upon by the Commission.
Apparently, it has not been pressed.
~The bulk of the evidence presented against the appellants
consisted of over 100 telephone conversations intercepted by
the government agents pursuant to court authorization. I
all, approximately 15,000 calls were intercepted. The conver-
sations introduced at trial were between Goldfarb and his
co-defendants: James Tamer, the Entertainment Director of
the Aladdin; James Abraham, the Executive Vice-President
and General Manager of the Aladdin; and Edward Monazym,
a Casino employee; as well as some calls between third parties
and the various co-defendants.
The evidence adduced at trial showed that Goldfarb, having
App. 8
Nos. 79-5255, 79-5317-20 Untied Statesv.(. fi vu eta §
failed in his attempt to become a licensee owner of the hotel
casino, did with the aid of the other defendants, maintain a
secret and illegal role in the ownership, operation, conducting
and carrying on of the gaming operations of the hotel casino,
He recommended complimentary services, including free ac-
commodations, for certain customers and had a hand in arrang:
ing for the extension of credit for individuals whom he sent
to the hotel. His advice and assistance was sought and given
concerning certain financial problems of the hotel as well,
including arrangements for emergency financing with false
net worth statements to an unnamed bank or banks and olso
possible sale or lease of the hotel, He finally arranged for a
loan from the Teamsters Pension Fund, The government con-
tended that this was in keeping with the defendants’ scheme
to engage in the clandestine ownership, conducting and carry-
ing on of the gaming operations of the Aladdin by persons
not licensed to do so and whose interest in the casino had
been concealed from the state in violation of certain Nevada
statutes and regulations,
The defendants contended that the evidence was perfectly
consistent with the fact that Goldfarb was a valued customer
of the casino; a former investor, and possibly a future stock-
holder-officer of the corporation; a close associate of the man-
agement personnel of the hotel; and an individual who had
used his contacts to direct many so-called “highrollers” to the
hotel, many of whom then became regular customers who lost
large sums in gambling,
This was a disputed issue of fact requiring resolution by
the jury.
The Travel Act, a8 applied to the instant case, required
that a facility of interstate commerce (here a telephone) be
used to promote, establish, carry on, ete., an unlawful activity,
“Unlawful activity” is defined as any business enterprise in-
volving gambling offenses in violation of the laws of the state
in which they are committed,*
4 See footnote 1, supra,
App. 9
6 United States v. Goldfarb, ct al. Nos, 79-5255, 79-5317-20
There is some dispute as to the nature and essentiality of
the underlying state law violation, although most decisions
agree that it is the violation of federal law which is the
gravamen of a Travel Act offense, United States v, Prince, 529
F, 2d 1108 (6th Cir, 1976), cert. den., 429 U.S, 838; United
States v. Polizzi, 500 F, 2d 856 (9th Cir, 1974), cert, den.,
419 U.S, 1120 (1975). Some courts hold that proof of the
commission or attempted commission of a state defined crim-
inal offense is an essential element of a Travel Act conviction,
United States v, Hiatt, 527 F, 2d 1048 (9th Cir, 1975); United
States v. Polizzi, supra; United States vy, Kahn, 472 F, 2d 272
(2d Cir, 1973), cert. den., 411 U.S, 982, while others hold
that it is not, United States v. Prince, 515 F, 2d 564 (Sth Cir,
1975), cert. den,, 423 U.S, 1032; United States v. Goldfarb,
464 F, Supp. 565 (E. D, Mich, 1979), It is certainly true that
the state crime need not be actually accomplished, United
States v. Pomponio, 511 F, 2d 953 (4th Cir, 1975), cert. den,
423 U.S, 874,
It is abundantly clear that as a predicate to a Travel Act
conviction, absent a distinct violation of a law of the United
States, the defendants must have engegad in some form of
unlawful activity prohibited by the law of the State of Nevada.
This contention is beyond dispute and amply supported by the
language of the Act and by the case law,
The defendants-appellants were indicted on a four-count
Revised Indictment.* In Count One of the indictment, Gold-
farb was charged with a substantive violation of the Travel
Act. The alleged “unlawful activity” was the
ownership, operation, conducting and carrying on of gam-
ing operations of a Las Vegas, Nevada gaming casino,
the ALADDIN HOTEL AND CASINO, by a person who
§ The original indictment consisting of 22 counta was found to be
multiplicitous by the trial court,
App. 10
Nos, .#-5255, 79-5317-20 United States v, Gulu arb, et al, 7
was not licensed by and whose interest in the gaming
casino had been concealed from agencies of the State of
Neva:la in violation of Nevada Revised Statutes, Sections
463,160,1(a)* and 463,335,” and Nevada "EF Com.
mission Regulations 3,100 paragraph 1, (b), (d), (f),
(g) and (i), 3.100 paragraph 3,8 3,110 and 8,060,"°
®NRS §463,160(1) (a) provides:
Livense required,
1, It is unlawful for any person, either as owner, lessee or
employee, whether for hire or not, either solely or in conjune-
tion with others:
(a) To deol, operate, carry on, conduct, maintain or expose
for play in the State of Nevada any game or slot machine as
defined in this chapter, ov to operate, carry on, conduct or main-«
tain any horserace book or aporta pool;
. . .
without having firat procured, and thereafter maintaining in
full force and effect, all federal, state, omar and munie pe
gaming licenses an required by statute or ordinance or by the
governing board of any unincorporated city or town,
7NRS §463,355 provides in pertinent part:
Gaming employees requived to hold work permite; hearings
and review; confidential records; expiration of work permits,
1, As used in this section:
(a) “Gaming employee” means any pereee connected directly
with the operation of a nonrestricted establishment, and in«
cludes without limitation;
Roxmen;
Cashiers;
Dealers;
Floormen:
Hoste or other persons empowered to extend credit or
complimentary services:
Keno runners;
Keno writers;
Machine mechanics;
Security personnel;
Shift or pit bosses;
ill; and
Supervisors or managers,
"Gaming employee" does not include bartenders, cocktail wait«
ressea or other persona engaged in preparing or serving food
or beverages... .
4 Nevada Gaming Commission Regulation 3.100 provides in pertinent
part:
-_~
oe
-—coooso Oe wt
———
im,
Employee report,
1, Annually, on or before the 15th of July, each nonrestricted
livensee, as defined in Reg, 4,090.1(b), shall submit an employee
report to the board on a form to furnished by the rd,
App. 11
8 United States v. Goldfarb, ct al. Nos, 79-5255, 79-5317-20
The indictment alleges specific acts committed by Goldfarb in
the course of the performance of the unlawful activity,
Appellant Tamer was acquitted by the jury of the substan-
tive Travel Act count but was convicted of conspiracy.
The report shall identify every individual who is directly or
indirectly engaged in the administration or supervision of the
gaming operations or physical security activities of such non-
reatricted licensee, The following classes of gami Gagmevens
are presumed to be actively and directly eng in the ad-
ministration or supervision of gaming:
(b) ‘All individuals who may approve or extend pans credit
in any amount, or whose recommendationa in this regard are
ordinarily sought or followed:
d) All individuala who have the authority to supervise or
irect a shift of any gaming or security activity, including but
not limited to supervision or direction of the pit area, keno or
bingo games, slot machines, race or aporta books, pari-mutuel
operations, or any persona having authority to supervise or
direct such persons;
(f) All individuala who may approve or extend to casino
eewens complimentary house services other than beverages
only;
(a) All individuala who supervise or direct other employees
go in the control of gaming asseta and revenues and rec-
) eeping, including the recording of cash and evidences of
indebtedness, and the maintenance, review or control of the
records, accounts, and reporta of transactions which are re-
quired to be kept purauant to Reg, 6;
() All individuala who individually or as a part of a group
ormulate management policy,
3. Any cha , additions, or deletions to any information
contained within the annual employee report which occurs
subsequent to the filing of the report and prior to the filing
of the report for the next calendar year shall be reported to
the board in writing no leas than 10 daya after the end of the
calenear quarter during which the change, addition, or deletion
occurred,
® Nevada Gaming Commission Regulation 3.110 provides in pertinent
Key employee,
1, Any executive, employee, or agent of a gaming licensee
having the power to exercise a significant influence over de-
cisions coneereng ony part of the operation of a gaming li-
censee or who ia listed or should be listed in the annual report
required by Reg, 3.100 is a key employee,
App. 12
Nos. 79-5255, 79-5317-20 United States v. Goldjarb, et al. 9
Count Three charged appellant Abraham with.a substantive
violation of the Travel Act in much the same language as the
charge against Goldfarb. The alleged unlawful activity was’
based upon the same Nevada Statutes and Regulations."'
Abraham was alleged to have discussed with Goldfarb the
extension of complimentary privileges to patrons of the Aladdin
which constituted, directly or indirectly, the administration,
supervision and influence of Goldfarb over the gaming opera-
tions of the Aladdin with the consent and assistance of Abra-
ham and in violation of the aforementioned statutes and regu-
lations. Abraham was convicted on this count.
2. Whenever it is the judgment of at least 3 members of the
commission that the public interest and the policies set forth
in Nevada Revised Statutes Chapter 463, the Nevada Gaming
Control Act, will be served by requiring any key employee to
be licensed, the commission shall serve notice of such determina-
tion upon the licensee. The commission shall not be restricted
by the title of the job performed but shall consider the func-
tions and responsibilities of the person involved in making
its decision as to key employee status. Grounds for requiring
licensing of a key employee which are deemed to serve the
public interest and the policies of the Nevada Gaming Control
Act include but are not limited to the following:
(a) The key employee is new to the industry. the particular
gaming establishment, the position, or the level of influence
or responsibility which he has and the board or commission
has little or outdated information concerning his character,
background, reputation, or associations, or
(b) Information has been received by the board or commission
which, if true, would constitute grounds for a finding of un-
suitability to be associated with a gaming enterprise.
10 Nevada Gaming Commission Regulation 8.060 provides:
Participation in operations. Except as and to the extent pro-
vided in these regulations pertaining to emergency situations,
or on written approval of the commission, no person who pro-
poses to acquire an interest in any licensed gaming operation,
in a licensee or in a holding company shall in connection there-
with take any part or be permitted to take any part whatever,
as an employee or otherwise, in the conduct of such gaming op-
erations or in the operation of the establishment wherein such
gaming operations are conducted during the pendency of his
application for license or to be permitted to acquire such interest.
11 The statutes and regulations relied upon are identical except
ue Count Three omits Nevada Gaming Regulation 3.100(1)(b) and
g).
App. 13
10 United States v. Goldfarb, ct al. Nos. 79-5255, 79-5317-20
Count Four is the conspiracy count of the indictment on
which all of the defendants were convicted. It charged that
the defendants willfully and knowingly conspired to use facili-
ties of interstate commerce to promote, manage, establish,
carry on and facilitate the promotion, management, establish-
ment and carrying on of an unlawful activity, namely; the
ownership, operation, conducting and carrying on of gaming
operations of a Las Vegas, Nevada gaming Casino by persons
who were not licensed to do so and whose interest in the
gaming casino had been concealed from the State of Nevada
and did thereafter commit acts in order to promote this unlaw-
ful activity, all in violation of 18 U.S.C. § 1952, 18 U.S.C.
§ 371.
As before stated, the appellants filed two joint motions to
dismiss the original indictment. Those motions apply equally
to the revised four-count indictment. In the motion the appel-
lants argued, inter alia, that Nevada Gaming Commission
Regulations are not “law” for the purposes of criminal prosecu-
tions. From the earliest stages of the proceedings, the defen-
dants objected to and expressed! concern over the notion that
a violation of a Nevada Gaming Commission regulation could
form the predicate state law violation required for a federal
prosecution under the Travel Act. It could not in and of
itself.
In response to the motion to dismiss, the government stated
that:
... the predicate “unlawful activity” in this prosecution
arises from the violations of the cited Nevada statutes
in each count. The additional citation to the regulations
is solely to provide additional particularity in indicating
the application of the statute to the specific activity de-
scribed in cach count. We do not quarrel with the de-
fense position that violations of the regulations in and
of themselves are not criminal acts within the purview
of the Travel Act... .
We do not quarrel that the defendants would be en-
App. 14
Nos. 79-5255, 79-5317-20 United States v. Goldfarb, et al. 11
titled to a charge that in order to find a defendant guilty
of a particular count that it must find a defendant vio-
lated the provisions of the Nevada statute cited and
described therein.
(Government's Response to Motion to Dismiss, Appendix
p. 138-39.)
Still claiming inability to comprehend and therefore defend
against the charges, the defendant's filed a joint motion for a
bill of particulars. The court requested the parties to agree
among themselves as to the particulars which they apparently
did.
The court instructed the jury as follows:
Now as to the meaning of the phrase unlawful activity
in the Travel Act, the State of Nevada has a comprehen-
sive scheme of regulatory statutes. Under those statutes
a gaming commission and a gaming board are established
and they are commanded to and have enacted regulations
which have the force of law. It is that law which defines
unlawful activity.
In Berman v. Riverside Casino Corp., 247 F. Supp. 243, 248
(D. Nev. 1964), affd 354 F. 2d 43 (9th Cir. 1965), the court
held that regulations promulgated by the Nevada Gaming
Commission “have the force and effect of law.” Cf. United
States v. Polizzi, 500 F. 2d 856, 875 (9th Cir. 1974), cert. den.,
419 U.S. 1120 (1975).
N. R. S. 463.1594 specifically provides that the regulations
are intended to implement the provisions of the statutes re-
quiring disclosure of a corporate licensee’s key personnel.
Also, N. R. S. 463.150(2)(a) provides that the regulations shall
prescribe “the method and form of application which any
applicant for a gaming license . . . shall follow and com-
plete ....” The court was thus required to include an in-
struction on regulations so that the jury would not completely
disregard them. The court did not instruct the jury at any
App. 15
12 United States v. Goldfarb, -t al. Nos. 79-5255, 79-5317-20
place that a violation of a regulation, in and of itself, consti-
tuted an “unlawful activity.” To give such an instruction would
have been prejudicial error. United States v. Eaton, 144 U.S.
677 (1892); Singer v. United States, 323 U.S. 338 (1944).
In United States v. Grimaud, 220 U.S. 506, 517 (1910) the
court stated:
From the beginning of the Government various acts have
been passed conferring upon executive officers power to
make rules and regulations — not for the government of
their departments, but for administering the laws which
did govern. None of these statutes could confer legisla-
tive power. But when Congress had legislated and in-
dicated its will, it could give to those who were to act
under such general provisions “power to fill up the details”
by the establishment of administrative rules and regula-
tions, the violation of which could be punished by fine or
imprisonment fixed by Congress, or by penalties fixed
by Congress or measured by the injury done.
Reliance by appellants on United States v. Gordon, 464 F.
2d 357 (9th Cir. 1972) is misplaced. That case held that
bookmakers and their employees do not engage in illegal
gambling business within the prohibition of federal law by
violating nonpenal regulations of state gaming commission.
Gordon appears to be somewhat in conflict with the subse-
quent decision of the Ninth Circuit in Polizzi and is not even
cited or discussed in Polizzi.
In United States v. Scelig, 622 F. 2d 207, 210 (6th Cir.
1980), we considered violations of the Controlled Substances
Act, 21 U.S.C. § 841(a)(1) and regulations promulgated there-
under which were authorized by Congress. There, as here,
the defendants contended that violations of the regulations
did not constitute an offense. We stated:
The combination of § 829(c) and § 822(b) thus requires
a person to dispense or distribute a schedule V drug for a
App. 16
Nos. 79-5255, 79-5317-20 Uniied States v. Gol lj b eal. 13
medical purpose and to be within the authority of the'r
registration as determined by the Attorney General. Sec-
tion §22(a) requires every person who distributes or dis-
penses controlled substances to register with the Attorney —
General. Section 821 authorizes the Attorney General to
promulgate rules and regulations relating to the registra-
tion and control of the manufacture, distribution, and
dispensing of controlle’ substances. Section 871(b) au-
thorizes the Attorney General to promulgate and enforce
rules, regulations and procedures that he deems necessary
for the efficient execution of his functions.
Although Congress was not as clear in this statute as in
the one involved in Crimatud, this Court is satisfied that
the statute docs expressly, albeit in a convoluted fashion,
provide that a violation of the promulgated rules consti-
tutes an unlawful act under the Controlled Substances
Act. Thus, counts 1-165 do charge crimes.
During the presentation of evidence to the jury in response
to the defendants’ and the trial court’s desire to have the legal
theory of the case made clear, the government filed a docu-
ment entitled “Government's Theory of the Case.” Here
again, the government disclaimed reliance upon the Nevada
Gaming Regulations alone, stating that: “to be sure, a viola-
tion of the Regulations which is not concomitant with a statu-
tory violation will not support a Travel Act violation.” (Ap-
pendix, p. 283)
Thus the violation of the Nevada statutes and implementing
regulations would constitute unlawful activity under the Travel
Act. The disclosure provisions required hy Regulation 3.100
are cumulative to those contained in the Nevada statutes.
N. R. S. 463.165, 463.339, 463.520, 463.530, 463.560.
In any event, under the conspiracy count, the violation of
the regulations alone would certainly be considered as overt
acts by the defendants committing them which are ingredients
of the crime of conspiracy.
App. 17
14 United States v. Goldfarb. ci al. Nos. 79-5255, 79-5317-20
It
With this principle in mind, we now turn to the trial court's
instruction to the jury on the meaning of “unlawful activity”
and the significance of the Nevada Gaming Regulations.
The court first instructed the jury on Count IV of the
indictment, the conspiracy charge. After preliminary matters
of defining conspiracy and its elements to the jury, the court
began to instruct on the application of the Travel Act. After
reading the Act, in pertinent part, the court instructed on the
meaning of the phrase “unlawful activity.” As a general back-
ground, the court instructed as follows:
... the state of Nevada has a comprehensive scheme of
regulatory statutes. Under these statutes a gaming com-
inission and a gaming board are established and they are
commanded to and have enacted regulations which have
the force of law. It is that law which defines unlawful
activity.
In order to regulate gambling under Nevada law these
statutes require full disclosures. Only through full and
accurate disclosure of all persons who are connected with
gambling in Nevada can the Nevada gaming authorities
properly perform their fumections in excluding from the
industry all who are in the authorities’ opinions, unsuit-
able or undesirable for any number of reasons. (Appen-
dix 1205-06)
The court further instructe! the jury on unlawful activity
based upon a violation of Nevada statutory law as follows:
Nevada Revised Statute 163.530 requires that all persons
who require [sic] to become owners or shareholders in a
gaming oneration must have come before the Nevada
gaming authorities for determination as to the suitability
for license. The Nevada gaming authorities then make
a decision whether te then issue a license to an anplicent.
If they deny the applicant a license, that person may not
App. 18
Nos. 79-5255, 79-5317-20 United States v.Go'd wb, cial, 15
then thereafter exercise any ownership of, operation, con-
duct of the gaming affairs of the casino.
Another Nevada statute, NSR 463.130, states that the’
violation of these Nevada gaming statutes is a crime, a
gross misdemeanor. Thus, by concealment of his owner-
ship or operation or conduct in the gaming conspiracy,
a person may violate the Nevads laws.
Keep in inind it is not the concealment itself which is the
violation of the statute | have just discussed but rather
the violation is the unlicensed ownership or operation of
the gaming casino which is accomplished by concealment.
(Appendix, p. 1206-07)
The cowt then continued:
I now take up another aspect of the Nevada laws on
gambling. One of the regulations, [3].100, which is man-
dated by Nevada statute is required, [sic] all holders of
non-restricted license, to disclose to the Nevada gaming
authorities names of all persons exercising significant con-
trol and influence over gaming. Any changes in such
activities must also be reported to the Nevada gaming
authorities because of a strong state policy requiring dis-
closure of all persons who have significant control and
influence as to gaming, and because of the statutory com-
mand that all gaming licenses which, whether held by a
corporation such as the Aladdin Hotel or by individuals,
must be maintained in conformity with all relevant pro-
visions.
I instruct vou that it is egal under Nevada gaming laws
for anyone exercising a significant control and influence
as to gaming to conceal that control and influence from
the Nevada gaming authorities. The essence or gist of the
violation [ have iust outlined is concealment, for which
failure to disclose, this must be contraste< with the first
instance of violation 1 described earlier, that violation
having to do with an unlawful or unlawful licensing viola-
App. 19
16 United States v. Goldfarb, «i al. Nos. 79-5255, 79-5317-20
tion of the Nevada casino, where the concealment is a
means to achieve the violation but not itself the actual
unlawful activity. (Appendix, p. 1207-08)
This in our opinion correctly stated the Nevada law.
In the instruction on the substantive offense charge against
Goldfarb, the court stated that:
[hJeretofore I have discussed with you in considering the
charge of conspiracy as to entail the meaning of the
phrase unlawful activity. Without repeating those in-
structions that I gave you then with the request that you
keep them in mind here, I specifically charge you that
the unlawful activity which it is alleged the defendant
Goldfarb engaged in is as follows: . . .
The court then described a statutory theory based on Nevada
Revised Statutes § 463.335 as was done in the conspiracy
charge. In concluding the instruction, the court again offered
the jury the elements of unlawful activity:
Additionally, in order for you to find the Defendant Gold-
farb guilty of the charges contained in Count I of the
indictment, the Government must also prove bevond a
reasonable doubt either that:
(1) Defendant Goldfarb willfully engaged in the own-
esrhip, operation or conducting cr carrying on of gaming
operations of the Aladdin Hotel and Casino without a
license from the Nevada Gaming Authorities to do so, or:
(2) Defendant Goldfarb willfully concealed his owner-
ship, operation or conducting or carrying on of gaming
operations of the Aladdin Hotel and Casino from the
Nevada Gaming Authorities for which he was not li-
censed.
Or both of these elements. (Appendix pp. 1217-18)
This instruction was not duplicitous as claimed for either
or both elements constitute an offense under Nevada law. The
App. 20
Nos. 79-5255, 79-5317-20 United States v. Goldfarb, et al. 17
jury was also instructed that its verdict had to be unanimous.
In its opinion denying post trial motions, the court relied
on the Nevada statutes which it stated were broad enough to
encompass Goldfarb’s conduct. (App. 440)
IV
The indictment charged Tamer with violating NRS 463.-
160.1(a) and Nevada Gaming Commission Regulations 3.100
(1)(i), 3.100(3) and 3.110. He was charged with performing
as a “key employee” without being licensed to do so. Tamer
was acquitted of the substantive Travel Act violation.
After reading the indictment and summarizing the Travel
Act, the court instructed on the meaning of “unlawful activity”
as follows:
Under Nevada gaming laws a casino (or non-restricted
licensee as it is called) must report to the Nevada Gam-
ing Authorities the identity of anyone who is cirectly or
indirectly involved in the casino’s administration; that is,
anyone who has a significant influence and control at the
casino. The regulation that requires this disclosure has
the force of law and its requirement of disclosure is in
harmony with a number of other Nevada gaming statutes.
Thus, under Nevada gaming law, it is required that the
casino disclose the identity of anyone exerting significant
influence and control at the casino. The disclosure is
necessary so that the Nevada Gaming Authorities can
regulate gambling by determining that such a person
should be licensed, if he is to continue the exercise of sig-
nificant control and influence at the casino. Now, the
Aladdin itself is not charged with the violation. Tow-
ever, defendant Tamer is; it is charged in this indictment
that defendant Tamer did, in concert with the Aladdin,
cause his true role at the casino to be concealed from the
Nevada Gaming Authorities, in violation of Nevada gam-
ing laws.
App. 21
18 United States v. Goldfarb, ct al. Nos. 79-5255, 79-5317-20
V
As to Abraham, the district court in instructing on Count
Ill of the indictment again carried through its interpretation
of “unlawful activity.” The court charged the jury as follows:
The unlawful activity here charged is a certain kind of
unlawful aetivity as is charged in Count | against Defen-
dant Goldfarb, although the telephone call alleged in the
indictment between defendant Goldfarb and defendant
Abraham occurred on March 15, 1977. (Appendix pp.
1226-27 )
Additionally, in order for you to find defendant Abraham
guilty of the charges contained in Count III of the in-
dictment, the Government must also prove beyond a
reasonable doubt that defendant Abraham aided and
abetted defendant Goldfarb in either willfully engaging
in the ownership, operation, or conducting or carrying on
of gaming operations of the Aladdin Hotel and Casino
without a license from the Nevada Gaming Authorities
to do so, or in aiding and abetting the defendant Gold-
farb in willfully concealing his ownership, operation or
conducting or carrying on of gaming operations of the
Aladdin Hotel and Casino from the Nevada Gaming Au-
thorities for which he was not licensed; or both of these
elements. (Appendix p. 1229)
Thus the district court instructed the jury on the unlawful
activities; one based on the unlicensed operation of the Alad-
din; the other based on concealment which found its origin
in the court's construction of the Nevada Statutes and Gaming
Regulations, especially 3.100. In our opinion these instruc-
tions were correct.
VI
Goldfarb contends that there was a variance between the
allegations in the indictment and the evidence which resulted
App. 22
Nos. 79-5255, 79-5317-20 United States v. Gold faiv, ct al. 19
in a judicial amendment of the indictment. Judge Feikens
correctly dealt with these issues in his opinion denying post
trial motions stating:
It appears Goldfarb alludes to principles of variance and
amendment. The two concepts are closely related. Vari-
ance refers to the failure of the government's proofs to
conform to the indictment. A variance is not fatal to
the prosecution unless the defendant could not reason-
ably have anticipated from the indictment what evidence
would be presented at trial or unless the indictment is so
vague as not to bar subsequent prosecution on the same
offense. United States v. Knuckles, 581 F 2d 305, 309
311, (2nd Cir), cert. denied 99 § Ct 581 (1978); United
States v. Fruchauf Corp., 577 F 2d 1038, 1056 (6th Cir),
cert. denied 99 § Ct. 349 (1978); United States v. Dunn,
577 F 2d 119, 123 (10th Cir 1978); Watson v. Jago, 558
F 2d 330, 333-334 (6th Cir 1977), United States v.
Maselli, 534 F 2d 1197, 1201-1202 6th Cir 1976). A
variance is not ground for reversal unless the defendant's
substantial rights are abridged. United States v. Berger,
295 U.S. 78, 82 (1934). In this case I find no prejudicial
variance.
The apparent amendment claim needs more analysis, but
it too is without merit. It is settled since Ex Parte Bain.
121 U.S. 1, 10 (1887) that neither the court nor the
prosecutor may substantially change the indictment to
“suit its own notions of what it ought to have been or
what the grand jury would probably have made it if
their attention had been called to suggested changes . . .”
This is in keening with the principle that a court may
not establish standards of conduct upon pain of imprison-
ment; such is the legislature’s domain. An amen ment
to the indictment is per se reversible error. United States
v. Crocker, 568 F 2d 1049, 1059 (3rd Cir 1977), United
States v. Fruchauf, supra, at 1056. An amendment may
he express or “constructive” (effective). Id. In determin-
ing whether there has been a constructive amendment
App. 23
20 United States v. Goldfarb. .: al. Nos. 79-5255, 79-5317-20
inquiry should focus on whether any essential element of
the crime was proved by facts different than those alleged.
Stirone v. United States, 361 U.S. 212 (1960). Thus, if
the indictment alleges one sort of false testimony but the
government is permitted to prove another sort, false testi-
mony being necessary for conviction, an amendment has
ocewred. United States vy. Crocker, supra. Similarly, in
a Hobbs Act case, if a grand jury alleges one sort of
interstate nexus while proof and argument show another,
an amendment has occurred. Stirone v. Unites’ States,
supra. See United States v. Prejean, 494 F 2d 495, 497
(35th Cir 1974); United States v. Vesaas, 586 F 2d 101,
103 (Sth Cir 1978).
In this case, there were three elements the govermnent
vas required to prove: (1) the use of an_ interstate
facility; (2) actual or attempted promotion, etc. of an
unlawful activity: (3) specific intent. United States v.
Prince, 529 F 2d 1108, 1112 (6th Cir). cert. denied 429
U.S. 838 (1976). The proofs did not diverge from the
course established by the requirement of these elements.
The only apparent argument available to Goldfarb (and
the other Defendants) is that the grand Jury did not
pass upon the exact shape of the illegal acts in Nevada,
which it is their constitutional right to have done. 1
find this contention without merit. The grand jury
needed to know enough of the Nevada gaming laws to
make the indictment sufficient, which it did. My inter-
pretation of Nevada gaming law presented Defendants
with no new factual charges that they were required to
meet, to use variance phraseology, yer did it allow cither
proof or argument of a new factual basis for any element
of the crime, to use amendment terminology. Moreover,
the allegation as to the Nevada offense was broad enough
to inclule the specific crime T have already explained.
[It has often been held that one way to guard against a
constructive amendment claim is to draft an indictment
with generality, United States v. Crocker, supra. at 1059.
so long as it contains the necessary specificity.
App. 24
Nos. 79-5255, 79-5317-20 United States v. Goldfurb, et al. 21
VII
We find no prejudicial error in the court's denial of Abra-
ham’s motion to declare a mistrial because of improper cross-
examination of a character witness. One of the character
witnesses was General Ralph G. Taylor retired from the United
States Air Force. Attempts were made by Abraham’s attor-
ney to introduce into evidence Abraham’s gallantry as an
officer and pilot, his two tours in Vietnam and his communica-
tions with the White Ilouse. The court excluded such evi-
dence. We agree that it was not admissible except upon con-
viction to be considered in mitigation of the sentence. Error
was assigned as to the cross-examination of the character wit-
ness Lovell, a former city attorney in Las Vegas, who volun-
teered that Abraham enjoyed a good reputation with Nevada's
“law enforcement community.” He was asked upon cross-
examination whether he had heard that in order for a shop
or store to do business with Aladdin Hotel Corporation to
obtain store space in the area that payments were made
personally to Abraham, not to the corporation. Lovell an-
swered, “No, I don’t know that.” Before asking the question,
at a side bar conference with the court not in the presence
of the jury, the government produced evidence showing justi-
fication namely, the cancelled check and the court permitted
the question to be answered and gave proper instruction to
the jury as to its purpose. Further proceedings developed
thereafter including rebuttal and surrebuttal evidence and
when it appeared to everyone that this was creating a trial
within a trial, the government moved to withdraw the ques-
tion, in which counsel for Abraham joined. The trial court
granted the motion finding that “. . . the spirit of Michelson vy.
United States, 335 U.S. 469 (1948) had been observed and
the prejudice, if any, was dissipated in Abraham’s favor.” App.
452, 453. We find no abuse of discretion on the part of the
District Judge in his handling of these issues.
Abraham and Monazym assign error because the trial court
App. 25
22 United States v. Goldfarb, ct al. Nos. 79-5255, 79-5317-20
held certain in camera proceedings to which they were not
admitted. Abraham and Tamer assign error in the admission
of evidence of tape recorded conversations and documents
tending to prove that Goldfarb and Tamer used their influence
with Leonard, the Prosecuting Attorney of Genesee County
in local court proceedings which Tamer believed would assist
him in securing a license in Nevada.
A special Grand Jury sought to return an indictment against
Mr. Leonard which was not signed by the United States At-
torney. Chief Judge Kennedy who conducted the in camera
proceeding, wrote an opinion ordering the files sealed. The
trial judge ordere’ that the defendants who had not partici-
pated in the in camera proceedings be given access to them.
The government had issued a subpoena for the testimony of
Mr. Leonard but obtained a stipulation from all defense
counsel which obviated the necessity for its production.
We find no abuse of discretion on the part of the trial judge
nor any prejudice to Abraham and Monazym (See Opinion
Denying Post Trial Motions, (App. 456)), nor was there any
abuse of discretion in denving the motions for a severance or
Tamer’s motion to suppress evidence.
Vill
Appellant Monazym challenges the sufficiency of the evi-
dence to support his conviction by the jury. The evidence is
detailed by the District Wdge in his Opinion Denving Post
Trial Motions. (App. 449, 450). The evidence and the infer-
ences to be reasonably drawn therefrom must be viewed in
the most favorable light in favor of the government. Glass
v. United States, 315 U.S. 60 (1942): United States v. Due,
508 F. 2d 1226 (6th Cir. 1974): United States v. Green, 548
F. 2d 1261 (6th Cir. 1977). So viewed, we are of the opinion
that the verdict of the jurv is supported bv abundant evidence.
In our opinion, the indictment charged only a single con-
spiracy.
App. 26
Nos. 79-5255, 79-5317-20 United States v.€ slajasd, et al. 23
IX
Aladdin contends that the district court erred in denying
its motion for a severance. It alleges that it could not defend
itself except through the testimony of its alleged agents, who,
as defendants in this joint trial, had countervailing Fifth
Amendment rights not to testify.
The trouble with this argument is that the proof at the trial
showed that conspiratorial acts were committed by at least
six other officers, agents and employees of Aladdin who were
not defendants. Aladdin did not call any of them to testify
in its behalf. No showing was made by Aladdin that any of
its officers, agents or employees were willing to testify in its
behalf or exculpate it. There was ro showing that in separate
trials any defendant would waive his Fifth Amendment priv-
ilege.
This matter was addressed entirely to the sound discretion
of the district court. Aladdin had a heavy burden to over-
come which it was unable to do. Cf. United States v. Vigil,
561 F. 2 1316 (9th Cir. 1977).
Conclusion
The judgments of conviction are affirmed.
RECEIVED
me > Giga
App. 27
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CASE NO. 79-5318
UNITED STATES OF AMERICA
Plaintiff-A ppellee
-v-
JAMES ABRAHAM
Defendant-A ppellant
APPEAL FROM THE DISTRICT COURT
OF THE UNITED STATES FOR THE
EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION
PETITION FOR REHEARING
ALBERT J. KRIEGER
Law Office of
Albert J. Krieger, P.A.
Counsel for Appellant Abraham
1428 Brickell Avenue, Suite 500
Miami, Florida 33131
(305) 377-0800
App. 28
INTRODUCTION
JAMES ABRAHAM, petitions this Court to grant
a rehearing of his cause.
As grounds for re-hearing, Abraham submits the
following:
The March 5, 1981 panel opinion in this case omits
a crucial issue presented in Abraham's Brief, and
misapprehends certain central facts controlling other
issues.
Specifically:
1. Abraham's contention — that the evidence
against him, viewed as a whole and cast in the
light most favorable to the government, is
insufficient to sustain the jury's verdict of
guilty against him — is misconceived by this
Court;
2. There is a misapprehension of the manner
in which the improper cross-examination of
defense witness Carl E. Lovell, Jr. was conducted,
and thus the real prejudicial effect, and the
confusion and bias it caused in the jurors’ minds
remains unconsidered by this Court;
3. The prejudice to Abraham in the trial court's
refusal to grant a severance was not recognized
by this Court;
App. 29
4. All other issues raised in the Petition For
Rehearing filed in this case on behalf of Defendant-
Appellants Tamer, Goldfarb, Monazym and the
Aladdin Hotel Corporation, which Abraham
incorporates herein and adopts by reference
as if fully set forth.
Abraham's contentions have been erroneously meshed
with those raised by others from whom he has continuously
sought severance for fear of just this result. We have
set out below in more detail those issues we request
this Court rehear. Abraham, in his Brief on Appeal,
sets forth issues discrete from those who were also
tried and convicted with him.
SUFFICIENCY OF THE EVIDENCE
As the Opinion observes, defendant Goldfarb conceded
that the sufficiency of the evidence against him was
not in issue. Abraham not only did not join in such
concession, but at appropriate times during the course
of the trial and in Point I of his Brief specifically raised
the issue of insufficiency of the evidence.
Central to the thrust of each and every issue Abraham
raises in his Brief is his contention that the evidence
against him lacked the quantum of proof necessary to
sustain a guilty verdict. We invite this Court to reassess
Abraham's Brief at pages 21-37, in which the evidence
produced against him is set forth in detail. No untainted,
objective jury could reasonably base a finding of guilt
upon such evidence.
Abraham's conviction rests upon evidence that he
extended credit and complimentary privileges (“comps”)
App. 30
as part of his duties and responsibilities as a key employee
of the Aladdin Hotel Corporation. All records and financial
entries reflecting such activities, as required by law,
were retained and available for review. Absent is any
evidence whatsoever of an illegal intent.
Jeffrey Silver, a witness called by the government,
testified that the Nevada Gaming Commission recognized
the widespread, well-accepted method of promoting
business by the use of credit extensions and “comps,”
and left the decision of how and when such promotional
methods should be used to the casino owners and certain
employees. (See Abraham's Brief, pages 4-8 and 26-27.)
Abraham did not abdicate his authority in these matters
to anyone, nor did he take orders from either defendant
Tamer or Goldfarb. (See Abraham’s Brief, pages 27-31.)
The record affirmatively demonstrates that all financial
records and entries required by law were kept, and
there was no concealment of extensions of credit or
complimentary privileges from the authorities. (See
Abraham’s Brief, page 28.)
Standing alone and untempered by improper innuendo,
as is demonstrated in the government’s improper cross-
examination of Mr. Lovell and the baseless accusations
therein contained, this evidence would have been insufficient
to cause a reasonably-minded jury to convict. We ask
this Court to grant rehearing in order that it may
review this evidence and determine if an innocent man
has been found guilty.
App. 31
THE IMPROPER CROSS-EXAMINATION OF
CARL E. LOVELL, JR.
There has been a misapprehension about the manner
in which the government’s improper cross-examination
of defense witness, Carl E. Lovell, Jr., was handled by
the trial court. (March 5, 1981, Opinion, at page 21.)
Thus, we set out below a summary of the trial proceedings
in this regard, and request that rehearing be granted
on this issue.
The government announced, at sidebar, (Tr. 3239)
its intention to inquire upon cross-examination of defense
character witness, Car] E. Lovell, Jr., whether he knew
about a check made payable to Abraham which it alleged
represented a “bribe” to shopkeepers for the granting
of leased space at the Aladdin. Vigorous objections and
legal arguments were advanced by Abraham's counsel
on February 20, 1979, at sidebar (Tr. 3239-3243) and
later in chambers (3272-3276, and 3288-3330). In addition,
on February 21, 1979, the court heard additional legal
argument (Tr. 3338-3356) and allowed the government
to voir dire Mr. Lovell, outside the hearing of the jury
(Tr. 3356). This voir dire disclosed that Mr. Lovell would
testify that he did not know nor had he heard that
payments were made to Abraham personally in exchange
for the granting of leases to shopkeepers at the Aladdin.
(Tr. 3357-3358). Abraham’s counsel advanced further
legal argument in objection to the introduction of this
evidence (Tr. 3359-3379). Defense counsel announced to
the court at this time that, during the previous 12
hours he was able to ascertain the true state of affairs
regarding this check (Tr. 3368), matters to which Mr.
Lovell would be incapable of testifying. Nevertheless,
App. 32
without any further basis in fact than the mere existence
of a $1,000 check to Abraham, and notwithstanding
that the court already knew that Lovell was totally
without knowledge of the check or Abraham's relation
to the check, the court allowed the government to ask
this inflammatory and provocative question in the presence
of the jury (Tr. 3386):
Q. Then I will ask you did you know or have
you heard that in order for a shop, or store to
do business with the Aladdin Hotel Corporation,
that is, to lease space from the Aladdin Hotel
Corporation for a shop or a store inside the
casino and hotel area, that payments were
made personally to Mr. Abraham, not to the
Corporation, in exchange for getting that space?
Abraham's counsel moved for a mistrial (Tr. 3388).
The motion was denied (id.).
The following day, which was the third day which
had been consumed by this matter (this alone speaks to
the crucial nature of this evidence as viewed by the
court and counsel), the government made a proffer to
the court outside the hearing of the jury of further
testimony by a witness named Ray Warren upon the
subject of Abraham’s alleged misconduct in extending
leases for space. (Tr. 3436-3452). By this time, defense
counsel was able to present two witnesses, Messrs.
Johnson (Tr. 3467-3477), and Saputo (3477-3489), whose
testimony was also heard by the court outside the
hearing of the jury, and both of whom had personal
knowledge of the events leading up to and concerning
the payment and disbursement of the $1,000 check.
App. 33
That is, (1) the check was not generated for Abraham's
gain; (2) the check was for payment to Aladdin Hotel
personnel in settlement of claims which they believed
they had arising from the new ticketing operation; and
(3) it was within Abraham’s scope oi responsibility to
bring about the leasing of the ticketing agency and the
settlement of the claim. Once this testimony was heard,
it became evident that the government’s theory that
this $1,000 was a “bribe” was without basis in fact. It
was for this reason that the government moved to
strike its question (Tr. 3492), and not because “it appeared
to everyone that this was creating a trial within a
trial.” (March 5, 1981, Opinion, at page 21)
This question encompassed an allegation far more
personally inculpating than any of the evidence introduced
in the government’s case in chief. Mr. Lovell’s response,
“No, I don’t know that,” (id.) could not overcome the
effect of such a statement nor erase the apparent, to
the jury, good faith basis for the question. The Opinion
presumably assumed that the prejudicial sting of this
question was adequately dissipated by “{flurther proceedings
... including rebuttal and surrebuttal evidence” which
disclosed the utter baselessness of this question. A
request that the jury be allowed to hear this evidence
was denied. (Tr. 3490) All that the jury ever heard was
the startling and defamatory question, and some two
days later a one sentence statement by the trial judge
that the question had been withdrawn by the government.
Thus, the jury was left by the court’s silence to ponder
upon the full extent of Abraham’s requests for bribe
money. Once it appeared that Lovell had no knowledge
of this affair, and again when it appeared the government
had asked this question without good faith support, a
mistrial should have been granted.
App. 34
The Opinion further erroneously concludes that
Abraham's counsel “joined” the motion to strike and
asked for no further relief. (March 5, 1981, Opinion,
page 21). However, counsel both moved twice for a
mistrial (Tr. 3388 and 3492-3493) and after these motions
were denied (Tr. 3388 and 3493), requested the following
curative instruction (Tr. 3495):
I instruct you that the final series of questions
Mr. Hunterton asked of Mr. Lovell concerning
the payment allegedly made to Mr. Abraham
by persons seeking space at the Aladdin Hotel
has been withdrawn at the request of the
government. I have conducted a hearing and I
heard witnesses and found — ... that there
was no basis for those questions.
This request was also denied. (/d.).
Instead of so instructing the trial judge merely told the
jury (Tr. 3500) that the question was withdrawn and
should be disregarded. The jury was never told why —
that the question had no factual foundation whatsoever.
This one question — so highly inflammatory —
was enough to tip the scales improperly and unjustly
against Abraham. Innocuous testimony and exhibits
were transformed into evidence of guilt. Thus, the trial
judge abused his discretion in allowing its admission,
and thereafter in denying Abraham’s motions for mistrial
or a curative instruction.
What the Fifth Circuit had to say in the case of
United States v. Beechum, 582 F.2d 898, 914 (5th Cir.
App. 35
1978) (en banc), about the effect of such collateral evidence
is highly applicable:
One of the dangers inherent in the admission
of extrinsic offense evidence is that the jury
may convict the defendant not for the offense
charged but for the extrinsic evidence. See,
Note, Other Crimes Evidence At Trial: Of
Balancing and Other Matters, 70 Yale L.Rev.
763, 773 (1961). This danger is particularly
great where, as here, the extrinsic activity
was not the subject of a conviction; the jury
may feel that the defendant should be punished
for that activity even if he is not guilty of the
offense charged. Moreover, “[e]ven if the jury
is no more disposed to punish the accused for
his unpunished past crimes, ‘over-persuasion’
may lead them to conclude that, having committed
a crime of the type charged, he is likely to
repeat it.” Jd. It is fear that the jury would
draw just this inference that extrinsic offense
evidence is excluded when it is relevant solely
to the issue of the defendant’s character.
See, also, United States v. McFadyen-Snider, 552 F.2d
1178, 1183 (6th Cir. 1977); United States v. Ailstock, 546
F.2d 1285, 1289 (6th Cir. 1976); United States v. Largent,
545 F.2d 1039, 1043 (6th Cir. 1976) cert. denied 429 U.S.
1098 (1977); United States v. Faulkner, 538 F.2d 724, 728
(6th Cir.) cert. denied 429 U.S. 1023 (1976); United States
v. Semak, 536 F.2d 1142, 1144 (6th Cir. 1976); United
States v. Rong, 513 F.2d 1001, 1004 (6th Cir. 1975).
App. 36
We request this Court grant a rehearing in order
that it may correct its erroneous reading of the record
on this point.
REFUSAL TO SEVER
The introduction of the separate alleged misconduct
of Tamer and others in seeking to induce public officials
to expunge his criminal record had a decided and
irrevocable effect upon Abraham’s right to a fair trial.
This misconduct was exhaustively explored by the
government during the trial (Abraham Brief, pages
37-43), and amounted to full proof of a completely separate
conspiracy in which Abraham had no part. Rule 14,
Federal Rules of Criminal Procedure, and Kotteakos v.
United States, 328 U.S. 750 (1946), dictated the granting
of Abraham’s motion for severance, and the trial court’s
denial of this motion was reversible error.
The March 5, 1981, Opinion disposes of this issue
in one sentence and by accumulating Abraham’s objection
with that of a co-defendant.
We entreat this Court to grant rehearing on this
issue so that it may consider Mr. Abraham's objections
to this evidence (set forth in Abraham's Brief, at pages
37-45) within the context of its impact upon him alone.
Further, if this issue is viewed in conjunction with the
insufficiency of the evidence, the prejudice Abraham
suffered by a joint trial is inescapable, and it becomes
apparent that its effect was to bias the jury to render
an improper verdict against him.
App. 37
CONCLUSION
For all of the forthgoing reasons, Appellant JAMES
ABRAHAM requests this Court enter an order setting
this cause down on its calendar for rehearing.
Respectfully submitted,
ALBERT J. KRIEGER
Law Offices of Albert J. Krieger,
P. A.
Counsel for Appellant Abraham
1428 Brickell Avenue, Suite 500
Miami, Florida 33131
(305) 377-0800
App. 38
PROOF OF SERVICE
I HEREBY CERTIFY that one copy of the foregoing
Petition For Rehearing was mailed to the following on
this 18th day of March, 1981.
/s|) ALBERT J. KRIEGER
C. STANLEY HUNTERTON DEDAY LaRENE, ESQ.
Special Attorney 1500 Buhl Building
Las Vegas Strike Force Detroit, Michigan 48226
US. Dept. of Justice
300 Las Vegas Blvd. S. NEAL H. FINK, ESQ.
Rm. 4523 1500 Buhl Building
Las Vegas, Nevada 89101 Detroit, Michigan 48226
CLYDE B. PRITCHARD, NORMAN LONDON, ESQ.
ESQ. 1600 Boatmen’s Tower
1930 Buhl Building 100 No. Broadway
Detroit, Michigan 48226 St. Louis, Missouri 63102
App. 39
APPENDIX D
[FILED APR 1 1981]
Nos. 79-5255, 79-5317, 79-5318, 79-5319, 79-5320
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America
Plaintiff-A ppellee
v.
Charles Goldfarb, James Tamer,
James Abraham, Edward Monazym,
and the Aladdin Hotel Corporation
Defendants-A ppellants
ORDER
Before WEICK, LIVELY and BROWN, Circuit
Judges.
Upon consideration of the petitions for rehearing
in which all of the appellants joined and also the separate
motion for rehearing filed by Appellant Aladdin Hotel
Corporation, we are of the opinion that the issues in
these appeals were adequately treated in our signed
opinion and that said petition for rehearing and motion
for rehearing lack merit.
App. 40
It is therefore ordered that the petition for rehearing
and the separate motion for rehearing be denied.
ENTERED BY ORDER OF THE
COURT
/s) JOHN P. HEHMAN
Clerk
RECEIVED
APR-3 1981
App. 41
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