Petition for Writ of Certiorari — Barrow v. United States

Supreme Court brief1967

Ask Donna

What actually matters in this document.

Text

POG Se y Office-Supreme Court, U.S. _[.

tif AR Y “| | OF ILLED.

“silPRev agains RT. U a, eee SEP 291966 a

ee BE aa L_ Jo F Davis, LER ‘|

- Supreme Cour of the United States

gee. October aaa 1966.. oe

NeG09

GEORGE. BARROW, ‘sie “Skinny Barrett”, FRED) Di-°

PATRIZIO, a/k/a “Flivvie the Fish”, a/k/a “Whispers”,

JOSEPH ‘MATTIA, a/k/a “Gassy”, and PASQUALE»

PILLO, i — ;

joc : = Petitioners; Se

0. SF

UNITED STATES OF AMERICA, a) 2

: © pe Respondent.

‘PETITION FOR A WRIT OF CERTIORARI TO THE vie

UNITE! OF. ee

Morton Witkin,

911 Finance* Building,

| Philadelphia, Pa. 19102

9° fy, 4 es

: Srawrorp HMUKLER,— +

: ne -. 905 Robinson Building, a

‘Philadelphia, Pa. 19102 -

Counsel for Petitioners.

International, 711 So. S0th St., Phila., Ps. 19143~Tel. SA 7-8711 Area Code 215:

0 ° f 2. hk : 7 °

4 3

"4 -

CE OR eon eae Wey

ies ee q

\ 3

oe }

eh . : 4

BN | - Page ‘

CITATION TO OPINIONS BELOW «.......:++++0+++% ‘eedeses ae ce 7.

* JURISDICTION on Kine eliiibewas pine senes bilge wie aed ieee oe = : a |

Questions. Prssenren PRBS peesesenceess ees g 3

ConstiruT10NAL AND ‘Statutory Provisions INVOLVED Ate ee Si % 4a

‘STATEMENT! OF THE Case vias ae aees evar tias ohakaaneees ie 4 oa

Legal Proceedings pak dusec ones by vekuPeskersees cease 7 4 cs

Summary of Evidence ..\.......++eeeeeeeeeeeeeees jee SD 7

REASONS For GRANTING THE Were ci Fier ieee ores ge °

1. The Statute Does Not Reach the Conduct Here Involved, nd EES |

2. If the Statute Reaches T This “Condugt, It Is Unconstitu- on =

TIME Gs este vies ficetares pipes Riese’ 16 Oe

i 3. ‘pus Tvidence Was Insufficient to Show Petitioners aN i ae

Knowledge of the Interstate Aspects of the Conspiracy Severs te VE

"4. The Evidence Was ‘Insufficient to Show Knowledge -

That Interstate Travel Was a Crime ... 660 e0060. eee, :

5. The, Tval Court Adsited Testimony Which Was the Peta i ae

|). | Pruit of thie Poisoged Tite” «costs. 0i cere nese hes

-* 6, The Trial Court Should: Have "Granted a New Trial and’ : 3

: Severance eccccececnce pees oecees Peececccecoce pees 25 i d

an Grand Jury Testimony. Was Used Improperly to Cross- :

_ Examine One Witness and as “Past Redllection Re- ae. ietss Se

“corded” of Another | x rree iesvssacdeusss essere ae fe aS

| Conctusion tL cies ud dewiuwanaaleds ietisenedin: ae :

. e.

Reo e

; ; =.

ee T

Ak, : \ 3 | ee, —

: * : H ek i ef

° ; - Sen ine .

4 Se aes es oe ae

Eins eae INDEX a ° pers

P J 4] a . > fe eel ..

sas eee 5 pe as. ace pees A-——Opinion of, United Sinies Court of Appeals for ;

as v4 the Third Cee GAB App) wee cegeeeeceees ae

PARTE _ Appenprx B: ; eee SLE

ve eas _Judgnient of United $ States Court of Appeals for the Third ae

soe pg S| gins t Circuit (in Appeal No. SIO soos iaidincc anes: ~~ sia

ss ts 8 Widgment of United. States. Court of Appeals for the Third |

Circuit (in Appeal No. 15095) ..:.. speaks ieceanks- 42

Judgment of United States Court of Appeals for the Third

a Circuit (in Appeal | area me 43

- Judgment af United: States Court of Appeals for the Third

= ; | “Gireuit (in Appeal No. 15097)... ..eeecnees pate 44

Soe lies ae - Agpenpnx C—Order of United States Court of Appeals for the :

is ae ‘Third Cireuit Ge A Appeeh) iistincesixebessadses:)

| \

: « \,

Se NG eeen eS 4. ;

Tare pal si apse 7

: Ses United States, 324'F. 2d 168, (8th Cir: 1963) . Pepe 13, 18

- Brooks v. United States, 267 U: S. 432 2) Berea mn 16 i

Burke v. United States, 328 F. 2d 399. (Ist Cir. 1964), cert. :

~ den, 379 U. S. 849 (1964). ... 0.0... rans meee 23.

+ Caminetti v.. United States, 242 U. S. 470 (1917) vetoes 16

Champion v. Ames, 188 U. S. 321 OO iii leant 16

: Coplop-v. United States, 191 F. 24,749 (D. C. Cir. 1951), cert.

: MD AB OG. SB) oo sinc cs cvtsenancvececs ome

Costello v. United States, 365 U. S. 265 (1961). ............ 23°

Coultef Funeral Home, Inc. v. Cherokee Life Insurance Co., 32 _

F. R. D. 358 (E. D. Tenn. 1963) ........... wiesisseen. ae.

Delli Paoli v. United States, 352 U. S. 232 (1957) CAM Sales eee

_ Elizabeth Hospital, Tae. v. ‘Richardson, 289 F. 2d 167 (8th Gir ie:

2 SIN Wak hewiis dad publ od cod enen ste Vieweakeen

Fahy v. Connecticut, 375 U. S. 85 (1963) . rare te nas eeees tee

Gibbons v. Ogden, 9 Wh. I (U. S. 1824), oo... ,.5.00 0.008, 16 |.

. Hoke v. United States, 227 U.S. 308 (1913) this”

Hotel Phillips, Inc. v. Journeymen Barbers Union, 195 F.

- Supp. 664 (W. D. Miss. 1961), fet. orion, 301 F..

* 5 AG COs Car 19GB) 55 bio bide oe eaves 15

~ Ingram y. United States, 360 U. S. 672 (1988) gf. sate pei <3

Imre Rapier, 143 U. S. eT eerrer ~ 16.

‘Jackson v, Denno, 378 U. S. 368 MOND sts 25s 5a sciivnce 26 -

Jones y. United States, 362 U. S. 257 GOD heed ccekiave 24

' Kelly v. Illinois Bell Tel. Co., 325 F. 2d'148 (7th Cir. 1963). 13,18"

Ker xv. California, 374 U. S. 23 (1963) .....0e060 00. 21

Lieberthal v. North Country. Lanes, Inc., 221 F Sapp, 688 é

SW ae

Marshall v. United States, 355 F.-2d moe (Sth Cir. 1966) ..... 13.

McLindon v. United States, 329 F, 24238 (D. C. Cir. — 23

’ _°, Nardone v. United States, 308 U. S. 338 (1939) 2.0.0.0... 22

__ Page v. Work, 290 F. 2d 293 (9th Cir. 1961) .2.....0.3.... 15

People v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265 (1965) .....: 27 :

. o

’

1 Ee

iN Ce

“TABLE OF oF OAS orTED (Continued).

iN:

; Schaffer v. United States, 362\U. S. ‘511 (1960) OO

___ Silverthorne ‘Lumber Cp. ¥. United ‘States, 251 U. S. 385.

Boeke. | eerieersere ES RAG SAE Pere seer naar: |S aay

Simmons v. Zerbst, 18 F. Supp. 929 (N..D. Ga. 1937) a (16,17.

‘Smith & Bowden v. United: States, 324 F; 2d 879 (D.C. Cir, 3

OL MIMS 5 conc Wer ae ceadiecsetvwrsssiales ess peheere: 22,23

"State v. Young, 46 N. J. 152, 215 A. 2d 352 (1965) .- rae Pelee

_; ‘Stirone v. United States, 361. U. S. 212 (1960) oy Re _ ae

_The Lottery Case, TE GM ic oc hac ca ences vieccttse 16.

“Tripp ¥. United States, 295 F. 2d 418 (10th’ Cir. 1961}, :..... Cy .

. Turf Center, Tne. v. United ae. 325 F. 24.703 (9th Cir.

PO MM 5s at oe ceo ve ek chan nao pce +++ 13, 18

United States v. Agueci, 310 F. 2d 817 (2d. Cir. 1962) ...0. 20°

~. United States v. Azar, 243 F. Supp. *345 (E. D. Mich. 1964) .. 13

United States’v. Barrow, 212 F. Supp. 837 (E. D. Pa. 1962) 21.

_ United States v. Bergland, 318 F. 2d 159 (7th Cir. 1963), cert.

den. 375 U. S.'861 (1963), rev’g 209 F. Supp. 547 (E. D.

By Wat, IQG2). ns nnud vec cevyedecsstosyens’ ee e318

United States: v. Bozza, 35 U. 5, L. Week, 114 (2d Cir. Aug. -

ISB 3c Hh isd Ca veatgh beds etus bob ek ek cecwe yee

United States v. Compton; 355 F. “24 872: (6th Cir. 1966) ....13, 14

United States v. Crimmins, 123 F. 2d.271 (2nd Cir. 1941) . 19,

United States v. Greeri, 246 F..2d 155 (7th Cir 1957) Creer - 20

‘United States v. Hawthorne, 356 F. 2d 740 (4th Cir.. -1966),. 3

‘cert. den. 86 S.\Ct.: 1344 (1966) ........66. Gavia cu 13,14,17

United. States v. sheers. tngs, Su F. 2d 660 (7th Cir. 1962)

13,14, 18

United States. v. Kahriger, 210 F. 2d 565 (3d Cir. 1954) . 20

United States v. Kahriger, 345 U. S. 22 (1953) eR 16.

United States v. Kubackj, 237 F. Supp. 638 (ED. Pa. 1965) - 13

United. States v. Massiah, 307 F. 2d 62 (2d-Cir: 1962) ...... al

‘ United States v. Ryan, 213 F. ‘Supp. 763 (D. Colo. 1963) ..13,16,18

United States v. Smith, 209 F. Supp. 907 (&. D. Ill. 1962) . .13, 18

United saree v. a 345 F. 2d we (7th Cir. re cree: 13

-. }

| TABLE OF F OASES OITED (tentinne). 4

s United States v. Sweeney, 262 F, 2d 272 (ia Cir. 190) . aves

' United States v. Teemer, 214 F. Supp. 982 M D: Wa. Va.

GOR rsa ickieeehiciadis ase eie 413,18

United States ¥ v. Vecquinti, 2 24 F. Supp. 276 . D. W.Va...

7 RS peace 5 (EIR | CO Sea Sevens alld, 18

United States v. Zanibito, 315 F. 2d 266. (4th Cir. 1963), cert. cg

den. 373 U. S. 924. (1963) ..f.... 0c... 00 seteeetes-13,18 ed

Wong Sun v. United States, 371 U. S. 47 (1963) . satiety ae

ras MISOFLLANEOUS. Ng ohne cat a

8 Harv. L. Ors 211, 23. (1964) Ap PRES ACEO. heen Lae

' Hearings, Senate Committee’ on the. Judiciary, 87th Coigiaid,. he

‘First Session, particularly pages 3-6, WO skies cuaexs ‘eisa-s ia

Hopps Act, 18 U. S. C. §1951........... Pr Date Fe aeaca i:

* House Report No. 966, to accompany: S. 1653, 87th Céngress,

a First Session, August 17, 1961 . Msp esedpeseasescens 15.

U. S. Constitution: ae ant eee rek ate cae

Atticle ‘I,; Section 8, Clause 3 poeeecdea ecyys baveseiens as |

Amendment IV ..... AE sosixvsaces Lee a

Atmendment V .:....6..0: SAN AOA P Shee hae 3,5

Mima Soo on Biss cascc'n Codcenecis cécwdi ds 3, 6, 16

Amendinent X .......00506 ci eh a NE A 3, 6, 16

United States Code: PP eae cate SEAR age ;

Title 18, Section 1084 ..:....c.scveddectsedacsevcscoe g 1B.

"+ Title 18, Section 1952 ......ccccegecesceseees “sce os e'ge5y 19

Title 28, Section 1254(1) ...........0000 Pe a, eee

y .

: : o

; Se ? .

é 7 . ol «

’ =. ‘*

& ne ‘ys

Te. ‘ /

. nama . o ry

ee ; ; ; Pat ae

> s 4

or .

IN THE : -

Supreme Court of the United States

7 e 2

‘iieiaie Tena, 1966. ; ons

g “ ao ’

Pei ee

No. rarenn ee

« ——< |

™~

GEORGE. BARROW, a/K/a “Sanvy Banaerr’,

} FRED DiPATRIZIO, A/K/A “Pauw THE Fisn”,

- A/K/a ‘“WauisPERs’’, ..

JOSEPH MATTIA. a/K/aS‘*Gassy”’, om

nasi PILLO, a/n/. ‘‘Husky”’, i

Petitioners,

..: ;

2 UNITED STATES OF AMERICA,

he es tes :

; ° . ese

PETITION FOR WRIT oF RTIORARI TO THE

» UNITED STATES COURT OF APPEALS |

FOR THE THIRD CIRCUIT. ick

Pétitioners pray that a Writ of Cetiotiie’ issue to

review the judgments of the United States Court of Appeals

. for the Third Circuit, entered i in the above entitled case ~

a, eee 18, 1966.

mm 7

DAI A

semumihs , ‘ pide dis eee ee

; APNE SNEED ag UE See GELS oh A

~€ |. Petition for Writ of Certiorari.

= OITATION TO OPINIONS BELOW.

‘The pinion. of the United States District enn: Si a

_ the Eastern District of. Pennsylvania is reported in 229 -

F. Supp.*722 (E. D. Pa. 1964)... The opinion of the Court

of Appeals for the Third Circuit: (App. A, infra, pp. 31-.

40) * has not yet been offcially reported.. The opinion of the

District Court passing upon pretrial motions in this case

- is reported in 212 F. Supp. 837 (E. D. Pa. 1962)2

bate

| JURISDICTION.

* \"

- ‘The ‘ataiionte of the Court of Appeals (Ape. .B,

infra, pp. 41-44) were. entered on July 18, 1966. A timely

pétition for rehearing was denied on- August 30, 1966 (App.

C, infra, p. 45). ‘The. jurisdiction of this Court is invoked.

under 28 U.S. C. § 1254(1). 7

- 1. It is also ‘printed ‘at pages 510a-537a of the Appendix See pees

Appellants printed. for the: court below, nine copies of which have

"been filed: with this. Peffffon.. References thereto ‘will be designated

as “Appt. Append. 510a-537a.” References to citations printed in

“the Appendix for Appellés, printed by the government for the court

below, nine copies of which have also been filed with this- —

= will be designated as “Appee. Append. —b.”

& “App.” references are to the tantrencaals to this Petition.

S Aap Appell Cee, ' t

& ?

Petition for Writ of Certiorari : ‘a

QUESTIONS PRESENTED:

1. Where a dice game, illegal .under state law, is op-.

erated wholly within a state, but where some of the em-.

"- ployees live outside the state and a few customers travel

“from neighboring states t6 attend the game, and where a

federal statute ‘prohibits interstate travel in aid of local

- gambling enterprises, may the local operators of the game’

and the out-of-state employees be convicted of. conspiring

to violate that law, and may the out-of-state employees be

: convicted of substantive violations of that law, without

’ any evidence that the interstate travel was necessary to:

and aided the local gambling operation? .

2. If the. above conduct is enootipaaeed by the abaleg

under. those facts does the statute cofistitute an uncon-

stitutional: attempt by Congress to. regulate or ‘punish local —

crimes in excess of its _ powers eonferred under the Com- ~

merce’ Clause, Article I,-Section 8, Clause 3 of the Con-

stitution, and thus in violation of the Ninth, and. Tenth

Amendments to the Constitution, and rendér the statute

-unconstitutionally vague inviolation of the due bee

clause. of: the Fifth. Amendment?

3. Where Petitioners were the anette or employees

‘of a: gambling business illegal under state law, which

had been established prior to the enactment of a federal

_ statute prohibiting interstate travel in aid of. such a busi-’

ness, and where: the evidence shows that the interstate

travel ceased shortly after, passage of the federal law, can

their convictions for gonspiring to violate the federal law

be sustained without proof of their Speen of the inter-

state aspects? ei. | ,

4. Under the itdoenail circumstances, can convictions |

of Petitioners for the substantive crimes of interstate travel

in aid of the local gambling enterprise be sustained without

proof of their knowledge of tlie existence of the law?

®,.

a .

4 STARE a, Petition for Writ of aoe

‘5. Where the wana i held that there was’ an illegal ”

search of the premises, because of an improper entry into -

the premises, does the admission into evidence of the testi-

. mony-of the following witnesses constitute ‘‘fruits of the

poisoned tree’’ in violation of the Fourth Amendment:

(a) where ‘giie witness was found on the premises fol-

lowing the illegal entry by federal agents, and

where he admitted at trial that he would not have

testified if he had not been found on the premises,

whether or not, the prosecutor may. have had inde-

pendent information as to his identity?

(b) where one witness was. found on the premises fol-

lowing the illegal entry by the federal agerits, and *

he zave statements as a result of the coercive

atmosphere of the illegal raid, but he testified that:

- he would have answered questions for the agents

i even if he had not been found at the raid?

whate two witnesses were stopped at ‘the ‘front

door while leaving the premises, by .officers who

_ were entering the ee ent SNES vik

was held to be illegal?

(d) where the nickname of orie defendant, not pian’.

on the premises, was learned from an unidentified

~ _ *gonfidential informant?’ who -was ‘seized in the

~ raid, and the identity of the defendant was later

@iscovered from the leads thus uncovered, and a

statement was taken from that defendant after in?

dictment of the defendants, and was introduced at

the trial? | ee ee eg a

6. Where 14 defendants were tried on a Prone of

conspiracy, with some additionally charged with substantive

violations and others with aiding and abetting those viola-

tions, ahd during the trial there is admitted into evidence

_ ‘testimony admissible against some but inadmissible against

° . ' | ;

Petition for Writ of Certioraré. : | aN

‘is and prejoiiisial to them, have the Petitioners been

deprived of a fair trial-even, though the jury has ‘been in--

structed as to the limiited effect of such testimony, and ~

must their motions for severance be granted? ;

7 ; May the prosecution plead surprise and cross-""

oe examine its own witness, utilizing testimony he gave before

a grahd jury as substantive evidence, even though the

+" * Artiele I, Section 8, Clause 3 Ses,

. Prosecution knew in advance that the witness would be un- .

cooperative ; and ‘may the prosecution utilize the prand. +

jury testimony of another witness as his ‘past recollection

recorded’’..without a proper foundation and even though. -

the grand jury testimony was given more than three months -

following the ‘events. to which he testified? ;

CONSTITUTIONAL AND ‘STATUTORY PROVISIONS

INVOLVED.

United States Constitution: > - —

ee eee

‘‘The Congress shall have Power . . To regu-

late Commerce with foreign Natidhs, and, among

the. several Btaton, and with the Indian belansr

<9?

coneas IV provides: 3 Baye

‘<The right of the people to be secure i in their per-- .

‘sons, houses, papers, and effects, against, unreason-

able searches and seizures, shall mt violated.

ce . P ee Cc 3 ”

Aisendenaat V provides: hike

‘*No person shall . . . be deprived of “life, lib-

ba ed property, without due _ Process. of law

Lt pate

aS,

g bee

°G

es.

.* es ; $ ‘Petition for Writ “4 Certiorari . a7

Amendment IX sissies:

“The enumeration i in the. Constitution, of certain _

rights, shall not be constrped to deny or ree

P .. ¢ - others retained by the People. 9. a

| 3 Amendment Kprovides: | ; wee : aie

; “the powers not: delegated to the United States by ee 2 — se

the Constitution, nor prohibited by it to » the States, -

‘ are reserved to the States respectively, or to the

te eon

we Ghia States Code, Title 18, Seetion 1952 ora nee

‘*(a) Whoever travels in interstate or. foreign

3 commerce or uses any facilities in interstate or

PS ; foreign commerce, including the ‘mail, with intent

A MS re 425 :

(3) itiewins promote, ial ts establish,

carry on, or facilitate-the promotion,. manage-

-ment,. establishment, or i at on, of any

unlawful activity, 2

and therefore performs or attempts to perform any .

,of the acts specified in Subparagraphs (1), ( 2),

and (3), shall be fined not more than $10,000.00 or, °

ew for not. more than fixe years, or both.

: (b) As used in’ this section’ ‘unlawful ac-

: 9 (aa tivity’ means (1) any business-enterprise involv- _

3 , ing gambling, liquor on which the Federal excise .

tax has not been paid, ‘narcotics, or prostitution

offenses in violations of the laws of the State in -

3 | which they are committed or of the United |

ee Oe: States, or (2) extortion or bribery in violation of |

ero _ the laws; of the State in which committed or of

_ the United States. cg ;

ee ars

' Petition for Writ of Certiorars ©

$y tg —— OF = CASE.

This petition arises from snibiictiode under a 26. count

indictment (Appt. Append. 23a-57a) which charged 15 de-

fendants with conspiring to violate the federal law prohibit-

ing travel in interstate commerce to facilitate violation of

ier ‘local laws, and which charged some of them with substan-.

'_ tive offenses of traveling in interstate commerce in violation

of that Act, and others with aiding or abetting the forbidden

interstate travel. =

with conspiracy."

‘ defendant, who was charged only with aca gan da was sev-

ered and the trial proceeded withont him: -

‘The remaining 14 defendants were tried roe e the

' Honorable J oseph 8. Lord, ITI, and a jury in a trial which

lasted almost five weeks. At the close of the government’s

ease, the trial judge directed the acquittal of one defendant |

who had been named in all counts (Gatto), and also dis-

missed as to all defendants one “count of the indictment

_charging a substantive offénse. The j jury acquitted one de--

fendant named in the conspiracy and in one substantive

" “gount (Grassi). One defendant, who was found guilty of es

‘ eonspiracy’as.well as aiding and abetting in 21 counts, died -

_a few weeks after the verdict: (DiCaprio), and- the action .

was abated-as to him. The remaining 11 defendants (in-

cluding the four Petitioners here): were all convicted of |

4. In addition to the 15 indictéd; there were 41 others named as

mv thetee ry ox and. “divers other persons to the Grand Jury un-

* (Appt. Append. 23a-24a). The Bill of Particulars filed by.

pap government set forth five additional mat but unindicted co- .

— (Appt. Append. 94a). w«-

rst count clfarged all 15 defendants .. -

e of. those defendants were also

charged in the reneining- counts: with substantive acts of

interstate travel, and five other defendants were charged. ~

. . with aiding and abetting those various acts of travel. One

fy .

40.

Wincanton ie ceetwi ic Dai ei WSO

Pen Pen

ae ; ai :

ENS Poi Hines ee Wicapeie Bi Rab age

. —— ra *

oe | "Petition for Writ. of Certiorart

- e@onspiracy ; tour: of them . (including Petitioners Miers

and Pillo) additionally were found guilty of aiding and

abetting on 21 of those remaining counts and not'guilty on

' three; two who were additionally charged with one substan- .-

tive ‘count each-were found not guilty; five (including Peti-

tioners DiPatrizio, Mattia and Pillo) charged with hala:

- substantive offenses were fond guilty.

“Motions for new ‘trial and for verdicts of. esata were

. -filed on behalf of all of the convicted defendants: The trial

court refused the verdicts of acquittal, but granted the mo-

tions for a new trial on behalf of those defendants who had

. been found guilty of siding and abetting (Appt. Append. |

510a-537a). Of the 11 remaining defendants who had been

onnd guilty on one or more counts, sentences were sus-

_ pended as to'six. Only the remaining five appealed. The

‘Court of Appeals/for the Third Circuit reversed the con- |

- vietion of one defendant (Bonaniio), who had been found

_ guilty of conspiracy and aiding and abetting.

| Thus, these Petitioners 1 ‘were found guilty of the follow-

ing offenses : : : |

~. Barrow: conspiracy (count I) ; aiding and abetting

(counts IIT to XI and XV to XXVI), with new .

trial ga as to counts. Il to XI and XV

to XXVI.

--DiPatrizio: conspiracy (count 1); interstate. iravel <

(counts IX to XI). ? >

Mattia: conspiracy (count D; ; ‘teleiditabs travel ;

(count XII). me ‘ |

Pillo: conspiracy (count I); tritaretats tee :

(counts ITI to V); aiding and abetting (Counts

VI to XI and XV to VI), with new trial

granted as to counts ‘VI.to XI‘ and XV to —

| | ‘Summary of Evidence. ee

About one o’clock A. M. on Ji anuary. 20, 1962, more

than 50 federal agents "raided premises 235-237 Cherry .

-with warrants for the arrest of. ten individuals (only five

whom were found on the premises,-and only two of. those

ve were among the 15 indicted). After breaking in, one

" of the agents left the scene, went t¢ an auto parked about a -

block away in which a United States Commissioner was —

pe he by prearrangement, obtained his signautre on a

‘search warrant, and returned to the premises with that

warrant. Approximately 150 persons were found on the

premises, all of whom were detained’ and questioned, and

‘some of whom were placed under arrest. The tables, dice

and other. paraphernalia located .on the premises, including

substantial - ‘sums of money found on the tables, under. the

. floorboards-and ‘on some of the individuals, were seized..

A Federal Grand Jury brought ‘in a six count indict-

“ment against seven defendants, charging them ‘with travel-

ing in interstate commerce in aid of racketeering enter- ©

‘prises, and with aiding and abetting that travel. How-_

ever, that indictment was later withdrawn and the present

indictment was filed in its place naming eight others in

addition to the original seven defendants.

Various motions were filed on behalf of all the os *

ad ants, including motions to dismiss the indictment, motions

- for a bill of particulars, motions for severance, and motions ‘3

to suppress the evidence seized in the raid. -After a hear:

ing before Honorable Joseph 8. Lord, III, the’ motion “

suppress the evidence was granted, and the motion to

miss denied. 212 F. Supp. 837 .(E..D. Pa. 1962) (Appt.

Append. 68a-88a). An Order was entered granting the mo-

tion of one defendant (Comito) for severance, but the re-

maining motions for severance were denied. . The govern-

ment subsequently filed a. bill of particulars: ‘Plus two.

amendments thereto (Appt. Append. 800202a)..

"Petition for Writ of tag a neae 9

"19 ey een Petition for Writ of Certiorari -

The trial commienesd before Judge Lord on ‘September fr

"_-” 10, 1968, and lasted almost five weeks. After the, jury

_. verdict, motions for’s new trial and for acquittal were filed

on behalf of all defendants as to all counts on which they —

' had been convicted. After submission of briefs and hearing ©

- arguments\ Judge Lord denied the motions for acquittal,

but granted the motions for new trial as to all defendants

‘convicted of aiding and abetting. 229 F. Supp. 722 (E. D..

Pa. 1964) (Appt. Append, 510a-537a). Sentences were .

imposed, but subsequently the ‘court on its own motion re- ’

duced some of the sentences (Appt. Append. 539a-545a).

|. The-evidence adduced at the trial, considered ‘most _

_ Strongly against defendants, tended to show that a crap -

‘game was being run at the premises in Reading from early -

‘ ’ 1960 until approximately June, 1961. At that,time the game

closed down for several months, reopening in November,

1961. It continued until the raid in January, 1962. The

oss federal statute prohibiting travel ‘in ‘interstate commierce

in.aid. of local gambling operations was approved Septem- ;

“ber 13, 1961. The evidence. tended to show: that the defend- —

. ants did not become aware of the significance: of. this Act

’ until January, 1962, and t that when they did, the New J eréey

-. employees ceased attending. ,

Of the 15 defendants named in ‘the jidictment; only.

ie _ three (Petitioner Barrow, DiCaprio and Loscalzo) were ar-

~ rested on the premises at the time of the raid. Of-theso-— .

15 defendants, five (heluding petitioner Barrow) were '

- residents of Pennsylvania and were not charged wae travel-

ing 3 in interstate commerce. 4 “Gi

> . ‘ . . oe : . "

“« \. . 0. oo"

I PL

fe Bb : Petition for Writ of C Certiorari Se | 11

REASONS FOR GRANTING THE WRIT.

'. This case arises out ‘of-one of the earliest prosecutions

instituted under the federal statute enacted in 1961 prohibit-

7 . Hf oe

| si potas

i ‘S ss Y : j

‘ing interstate ravel.in aid of local gambling activities. Al- -

though several other cases in. other federal courts have

- raised the ‘question. of the constitutionality of the statute,

in this cas¢-the statute was applied in an unusual manner.

Sorfie of the defendants were indicted as substantive viola-

cipal operators of the illegal enterprise, a crap game being

op x asc ph in Reading, Pennsylvania; these defendants were

imply a few of the employees. who happened. to live in

r Jersey and traveled to Reading to.work. ‘The defend-’

Pht who, according to the evidence, wete_ the operators.

and managers of.the game, were residents of. Pennsylvania,

‘ and did not cross state lines; they were charged with aiding

and abetting the other. defendants. lt of the defendants

Were also charged with conspiring to, violate the federal -

law.’ However, the .evidence bak 67 that this was. not a

. game established after the feder

evidence showed that the game’ had. been in operation for .

_ several years before the federal law. was passed i in August,

1961. It had been closed down for physical repairs in June,

. 1961, and reopened i in November, 1961. There was evidence |

* that the participants did not learn of. the federal law until

January, 1962, and that immediately thereafter all New-

Jersey ‘employees ceased. participating. -

" Accordingly,’ the case ‘poses several problems of im-

’. portance to not only the Petitioners herein, but to the fair

administration of “criminal justice. ~ Did Congress: intend

the statute to extend to this type of conduct? © ‘it did,

, then is it constitutional, or is it an unconstitutional ‘attem attempt

-to regulate and punish local crimes? Can Petitioners i,

, corivicted of conspiring to violate 9 law which did not exist ° -

when they first commenced their illegal conduct, without -

any evidence that they Knew of the: federal law passed:

pasos, and wage =e. terminated their conduct Upon»

i te

Dy Cat ea ae

law was-passed’ The

..tors because they traveled i in interstate commerce, yet, ac- i |

- cording to the evidence, these defendants were not the prin-

P .

- .

2 od ry a

| 12 . n Petition for Writ of Certiorari

leaving of the law? Can mids who crossed state, Hines

be convicted of viglating a law awhich they did not know

. existed? - -

ie In sddition, the. case poses iioail questions of trial

' rulings which transcend’ in importance the convictions of

these Petitioners. Where there has been a ruling. that an

. ‘legal search and: séizure ‘has occurred, can the government

offer the testimony of ‘witnesses discovered on the premises _

~ after—or simultaneously. with—the illegal entry? Where

a long trial involving 14 deféndants takes place, and evi-

dicial as to them is admitted against other defendants, with

a proper cautioning instructions, can the jury be expected

to wipe out the prejudicial effect, or must the court grant

‘a new trial and severance? Where the prosecuter ealls a

witness he knows to’ be: reluctant, can he Plead, surprise

and cross-examine him, utilizing-testimony given by that

a summary of the. legab i issues posed, follows. e-

1. The 8 ate Does Not Reach the Conduct Here Involved.

Eve rpreting the evidence in the light most favor-

cae : able to the government,:there can be no question that the

crap game which was the subject. of the indictment here

was coriducted entirely and exclusively in Reading, Pennsyl-

'" vania. There was some evidence that some of the defend-

ants who were employed i the game (including three of .

these Petitioners, DiPatri#io, Mattia and Pillo) did live

in New Jersey, and did travel to the game. There was also |

some evidence that some of the players who attended the

game. came from. New Jersey, and even some evidence -

that some employees (including only two of the 15 defend-

ants named in the indictment, none of whom are Petitioners

‘ here) did transport’ players fromNew J ersey to Reading.-’

The evidence showed that the principal operators (allegedly

— Petitioner. rey never left sates

~. dence inadmissible as to,some defendants and highly preju- :

_witness before: the grand jury, and have that grand jary — |

testimony admitted as substantive Sidencet ~~ |

The facts pertaining to each of these questions, and

_ Petition for Writ of Certiorari .B

‘Thin th cialis posed’ in this case s adhe the |

federal statute reaches the situation where the principal

operators of the illegal enterprise never Ieave the state,

_ and where the only interstate aspect of the operation i is the

crossing of state borders by some entployees and some

patrons—especially where there has been no evidence that .

any of the interestate traveling employees were indispen- ~~

‘ sible to the operation of the game, and where the evidence —

‘shows that the interstate players . were only a minute per-

- eentage of the attendance and there was no interstate solici-

‘tation of customers. ;

- Although there have ae séveral cases. in the- United :

States District Courts, and a few reaching the Court of -

Appéals,® interpret $4 this new federal statute, there has

been none reported to date encompassing this type of con-

duct. Thus, thfS case poses squarely the important issue

- of whether the statute can be’ interpreted broadly enough

' to reach this conduct, as was held a by the trial jndge and

» the Courts of Appeals.

By 4ts terms the statute requires travel with intent

to facilitate the operation of an illegal gambling enterprise

plus-a subsequent act faciJitating that game. It is not con-

tended that the employees who lived out of state and trav-

eled to Reading to work in the game did not ultimately aid |

5. See, 69., United: States v. Hawthorne, 356 F. 2d 740 (4th.

‘Cir. 1966), cert.. den. 86 S. -Ct.. 1344 (1966); United States v.

‘ Compton, 355 F. 2d 872 (6th Cir. 1966) ; Marshall v. United States,

- 355 F. 2d 999 (9th Cir. 1966) ; United ‘States v. Spino, 345 F. 2d

372 (7th Cir. 1965) ; Turf Center, Inc. v. United States, 325 F. 2d

703 (9th Cir. 1963) ; Bass v. United States, 324 F. 2d 168° (8th Cir.

1963) ; United States v. Bergland, 318 F. 2d 159 (7th Cir. 1963),

cert. den. 375 U. S. 861 (1963), rev’g 209 F. Supp. 547. (E.-D: Wisc.

- 1962); United States v. Zambito, S15: F. 2d 206 ‘(4th Cir. 1963),

* . cert. den. 373 U. S. 924 (1963) ; United States v. Honeycutt, 311 _

F. 2d 660 (7th Cir. 1962) ; United States v. Teemer, 214 F. Supp

rik (N. D. W. Va. 1963) ; United States v. Ryan, 213'F. Supp 76s

Colo. 1963) ; United States-v. Azar, 243 F. Supp. 345 (CE.

Mich. 964) ; United: States v. Kubacki, 237 F. Supp. 638 (E. D:

Pa. 1965) ; United States v. Smith, 209 F. Supp 807 (E. D. Ill.»

. 1962) ; compare United States v. Vacquinté, 204 F. Su . 276 (N. D.

W. Va. -1962) ; nace v, Illinois Bell’ Tet. Co., i, . 2d 1 (7th -

Cir. —

Sor

14° .—— "Petition je Writ t of Certiorari |

or: facilitate the operation of the game; certainly a game_

cannot operate without employees. However, there was

_ no evidence offered to show that the traveling employeés

- Were essential to the operation of the game, in that the game

; could not have operated without these employees at all, or

cotlld not have replaced them with Ipeal employees. .

The government offered no. proof that the employees’

_ travel from other states was an integral part of the opera-

tion. There was only slight circumstantial evidence that

‘many of the local defendants knew that the New Jersey

‘defendants lived outside the state, and there was no proof,

- direct er. circumstantial, that any of the. local defendants

eared in the slightest until they learned of the existence of

the federal statute. It:is respectfully sub itted that* the .

interstate travel: involved here is so remote that the conduct

is not embraced by the statute. See United States v. Haw-

_ thorne, 356 F. 2d 740 (4th Cir. 1966), cert. den. 86 §. Ct.

1344 (1966); cf. United States v. Compton, 355 F. 2d 872 -

(6th Cir. 1966).- :

The trial judge conéluded that the statutory Lecce’

requires that the traveler facilitate the illegal activity, not

that the travel aid it, and the Court of Appeals held that

‘the statute does not require that the interstate wey be

essential to the unlawful activity.

Tt is. respectfully submitted that the Seventh Circuit °

-Court’s opinion in United States. v. Honeycutt, 311 F. 2d

660 (7th Cir. 1962), reversing the conviction of a defendant

charged with violating this statute by aiding and abetting

another who was allegedly his partner in the operation of

a-gambling room in North Carolina, lends support to the

contention that the ‘statute requires that the interstate

travek be an essential element of the crime. Likewise, the

‘decision of another federal court in Lieberthal v. North

Country Lanes, Inc., 221 F. Supp. 685 (S. D. N. Y. 1963),

holding that crossing of state and international borders by

customers of a business do not change-an intrastate activity

into an interstate one for purposes of regulation under

the Sherman Anti-Trust Act, lends —— to this conten-

* Petition for Writ of Certiorari | oa

tion. Also see Hotel Phillips, Ine. v. janine Raters

Union, 195 F. Supp. 664 (W. D. Miss. 1961), aff’d per

curiam, 301 F. 2d 443 (8th Cir. 1962) ; Elizabeth Hospital,

Inc. v. Richardson, 289 F. 2d 167, (8th Cir. 1959) ; Page v.

Work, 290 F. 2d 293 (9th Cir. 1961) ; Coulter Funeral Home,

Inc. v. Cherokee Life. Insurance Co:, 32 F. R. D. 358 (E. D.

Tenn. 1963). Surely, this i is no less true under the Act at

bar, where the sole purpose is allegedly to assist the states

_ in their enforcement of local police laws, despite the -fact ~

. that the federal government has no federal. police power,

than it is as applied to the Sherman Anti-Trust Act, which

arises under a clearly recognized federal power. ;

In addition, thé legislative history of the Act shows

that Congress never intended to reach this type of conduct.

The statute was introduced pursuant: to the recommenda-

tion of Attorney General Robert F. Kennedy, who testified

at the hearings before the Senate Committee on the Judi- —

ciary that the act was intended to reach individuals who: :

have interests in gambling operations but who live in resort

towns far frém the scene of operation and manage their

enterprises through couriers and messengers traveling .

across state lines hetween the proprietors, the operation

and other branches. According to the Attorney General, it

was difficult to prosecute the principals who never appeared

at the scene of operations. See Hearings, Senate Commit-

tee on the Judiciary, 87th Congress, First Session, particu-

larly pages 3-6, 16. See also House Report No. 966, to

accompany S. 1653, 87th Congyem, First Session, —

“17, 1961. ’ :

‘In the case at bar it is the obverse sityiation in which

the government, is attempting to invoke the statute. The

proprietors of the operation reside at the scene of the

activity; it is the employees .who travel across state lines

simply to come to work. Both the alleged principals and

the employees are amenable to loeal prosecution. In effect,

the prosecution here attempts to convert mere unessential/

. employees of a local gambling operation into federal ‘crimi-

nals, thereby converting a local. gambling problem into a

federal matter through - use of conspiracy . and aiding

eae ts: ; : oo

a ye ee Petition for Writ of Certiorari.

and abetting® provisions. This is ‘bootstrap logic used

to create federal Jariedsotion. | -

2. If the Statute Reba This Conduct, It Is s rcsiaaciana’

tional.

’ There can we no doubt that the federal government

- Jaéks power to regulate or punish local gambling. -This- is ioe aes

. reserved to the states’ under the Ninth and Tenth Aniend-

‘ments. Federal legislation must rest on a congressional :

power enumerated in the Constitution, such as the taxing

_ power or the Commerce Clause. Umited States v. K one:

345 U. S. 22, 29 (1953). |

Although it is conceded: that ‘Congress may ‘ebdatite

tionally prohibit the use of interstate facilities’ for illicit .

purposés, and that Congress has plenary power over inter- ©

- state Commerce,® it is submitted that there must be some.

relation between the use’ of, interstate’ commerce and the

unlawful activities. ‘See United States v. Ryan, 213 F. lt

Supp. 763, .765 (D. Colo. 1963). Here, under the facts of a

~~ this case, tava’ is no relation between the. use of interstate

6. Of course; since the aiding and abetting convictions have been

reversed, they are not presently before this Court.

-. 7. See United States v. Kahriger; 345 U. S.. 22, 29, esp. fri. 6,

and cases cited therein. Congress may.also prohibit the use of the

.mails for illicit purposes, under its power to establish post offices

a ga _— ‘In re Rapier, 143 U. S.-110; The, Lottery Case, 188

8. Gibbons v. Ogden, 9 Wh. 1 (U. S. 1824) ; ef. Champion v.

Ames, 188 U. S. 321 (1903); Caminetti v. United ‘States, 242 U. S.

470, 491 (1917). ‘Under this power, Congress can bar transporta-

_ tion of women for immoral purposes: Camminetti v. United States,

‘. supra; Hoke v: United, States, 227 U. S. 308 (1913) (the Mann

’ Act) ; it can punish interference: with aoe commerce by extor-

tion: Stirone v. United States, 361 U. S. 212 (1960). (the Hopps

Act, 18 U. S. C. § 1951); it can prohibit the aise of commerce to

* avoid" prosecution: Simmons v. Zerbst, 18 F. Supp. 929 (N. D. Ga.

' 1937) (the Fugitive Felon Act). Congress. can even use its com-

merce power to implement state policy by. denying the use of inter-

state‘ commerce in furtherance of activities unlawful under state

. law, : Brooks v. United siete 267 U. S. 432 ae)

s+ 8

> =

ch. : v % b=, | Ee

°..

‘Petition for Writ of Certiorari = AT

* commerce ana thé unlawful activities. Here the trial judge.

~: concluded that Congress has the power to make it a criminal

offense to cross the state line after the commission of a —

strictly local offense, and that Congress also has the power os

to-make it a criminal. offense-to~-cross- state lines to

a commit a crime. Even if he is correct, to extend’this rea-

.. - soning to the facts at bar, where the evidence clearly showed

- the crossing of state lines to’ be merely incidental, acci-.

dental and unessential to the offense thereafter committed,

~ would be an unconstitutional extension of the Commerce .

Clause into fields traditionally reserved for local enforce- se

ment. See United States v. Hawthorne, supra.

'. This Court was seriously troubled, in. the Stirone

case, 361 U.'S. 212 (1960), by the suggestion that an in- ~

dividual could be tried and convicted for interference with

_. possible future shipments of steel to be manufactured by |

~ - a plant which was to be constructed from.concrete made with

sand supplied by the individual whom the defendant tried

to extort. “As this Court stated in the Simmons case, supra, -°

18 F. Supp. at 930, sustaining the Fugitive Felon Act, and

' citing the language of the Hoke case, angres: 227 U. S. at

321, sustaining the Mann: Act: |

«here is a domain which the states ‘cammot reach aka’

over which Congress alone has power; and if such

eae power be exerted to control what the states cannot, it

’ is an argument for—not against—its legality. Its exer-

tion does not encroach upon the. jurisdiction: of the

states.’’ (Einphasis semper.) :

Under the facts of the case id bar, liowever, it is clear

' that.this Act does not attempt to reach conduct out of the

reach of the states. The interstate travel involved was not

an essential incident of the offense, nor did any interestate

travel take place to avoid prosecution. 3

- This case thus poses the issue squarely of whether this’

Cunt will permit federal prosecutors to utilize the federal .

statute’to encroach upon the rights of the states to regulate

0 OR nt cman. Re ER

18 see Petition for Writ of Certiorari

and punish local crimes in a manner which cena not con-

-stitutionally be encompassed by the federal statute. _

The case also poses the further question of whéther. ©

such a broad interpretation, far beyond the language used ~

- by Congress, rendérs the statute so vague as to be uncon-

stitutional under the Fifth Amendment.

Several, other Circuit and District Courts have already

_ sustained the constitutionality of this statute and of a re-

lated statute, 18 U. S. CO. § 1084. See: Turf Center, Inc. v.

United States, 325 F. 2d 703 (9th Cir. 1963) ; Bass v. Umitéd ©

States, 324 F. 2d 168 (8th Cir. 1963); United States v.

Bergland, 318 F. 2d 159 (7th Cir. 1963) ; United States v.

Zambito, 315 F. 2d 266 (4th Cir. 1963); United States v.

_Teemer, 214 F. Supp. 952 (N. D. W. Va. 1963); United

States v. Ryan, 213 F. Supp. 763 (D. Colo. 1963) ; United

‘States v. Smith, 209 F. Supp. 907 (E. D. Ill. 1962). But

compare Umited States v. Yacquinta, 204 -F. Supp. 276

(N. D. W. Va. 1962) ; Kelly. v. Illinois Bell Tel: Co., 325 F. -

2d 148, 152: (7th Cir. 1963) (which held that transmission

- of racing news does not. violate this section). N: onetheless,

it is respectfully submitted that in each of the above cases,

the facts were such as te show a clear violation of the

statute under circumstances which, unlike the case at bar,

would not render the statute unconstitutional. Compare

Unies States v. Honeycutt, 311 F. 2d 660 (7th Cir. 1962).

. Thus, this case raises an important question of con-

stitutional law which exceeds the aii ous to these lata |

tioners alone.

3. The Evidence Was Insufficient to: Show Petitioners’

Knowledge of the Interstate Aspects of of the Conspiracy.

It is not suggested that the Petitioners who traveled ..

across state lines did not know they were crossing state

lines.. The question here posed is whether-a federal con-

_ viction of conspiracy can be sustained without any proof:

- of knowledge on the part of the alleged co-conspirators

that the — of their alleged Serer: isa deniasiue crime.

—

Petition for Writ of Certiorari : _

7 The conspiracy count of the indictment ad here

. that defendants did unlawfully, intentionally and knowingly ~

conspire and agree to commit offenses against the United

. States, to wit, to violate Section 1952 of Title 18,.United — |

States Code. ‘Since that Act requires interstate travel

“with the intent of facilitating the carrying on of the illegal

enterprises, it is submitted that there must, be proof that ~

' the defendants knew that interstate travel would take place,

and it’must be shown. that’ the interstate travel was am

’ integral part of the agreement. Otherwise, there has‘not .

been evidence of knowledge by each corispirator of all of

the elements of the crime charged, as Judge Learned Hand

spelled out in United States v. Crimmins, 123 F. 2d ail, |

, 2m3 (2nd Cir. 1941):

‘‘And this is equally true, when the crime which the

conspirators have agreed-upon, is one of which. they

severally might be guilty. though they were ignorant

of the existence of some of its constituent facts. While .

one may, for instance, be guilty of passing a traffic

‘ light of whose existence one is ignorant, one cannot be

‘. guilty of conspiracy to run past such a light, for one.

cannot agree ‘to run past a light unless one supposes

— there is‘ a light to run past.”

Senay Here the . evidence showed that the illegal game had

_been started long before theré waa federal statute in exist-

ence. Although the evidence showed that the game closed

down for physical. repairs, reopening in. November, 1961,

‘ shortly after the federal statute had been passed, the evi-

dence showed that as soon as the participants learned of.

the newly.enacted federal statute, the interstate activities

ceased entirely. Thus, the question is whether a conspiracy

‘ conviction can be sustained where the object of the con-

spiracy, charged is to violate a federal law which did not -

‘exist when the alleged conspiracy was formed; and where

the evidence showed a cessation of interstate activities

shortly after the passage of the federal statute.

Saacet, ©

: 20 pel Petition ney Writ of Cestiorar

ee addition, the, evidence against Petitioner Barrow.

was at best highly circumstantial and capable of many

interpretations. . The trial. judge found that. Barrow was

the top man on the chain. of command, because, inter alia,

there was evidence that: oh one occasion he had settled a

dispute over the. call of the\dice; on one occasion hé had i

decided whether a patron should be admitted to the game;

there was some evidence offered that he used the ‘‘office’’;

there was some evidence (the admissibility’ of which was

questionable) tM#&t he hired one “‘lugger.’’ ~ With little

more. than this circumstantial evidence,-the trial judge -

- and the Court of Appeals concluded that Barrow must-have —

known that some of the other employees came from New

Jersey, and that he was thus aware of the scope of the

, illegal enterprise, including its interstate aspects. It is.

. the presumption that the possessor knows ‘of such importa-—

_ tion, the courts have generally concluded that there must .

-. bé evidence of knowledge on the part of the conspirators:

of the fact that the narcotics have.actually been imported. .

respectfully submitted: that the evidence did not show, be-

yond a reasonable doubt, that Barrow was a manager and

‘promoter of this illegal enterprise. But even if-this evi-.

dence were sufficient to sustain an inference of his knowl-

edge that some of the employees traveled in interstate com-

merce, it is respectfully submitted that such knowledge is

not the knowledge required to sustain a conviction under

the Act, since there was not one word of evidence intro-

- duced that Barrow, or any other alleged .co-conspirator,

knew that the object of the conspiracy was interstate travel: —

See Ingram v. United States, 360 U..S. 672 (1959); ef.

United States v. Green, 246 F. 2d° 155 (7th Cir. 1957);

United States v. Sweeney, 262 F.2d 272 (3d°Cir. 1959);

also see: Umted States v. Baheiger, 2 210 F. 2d — (3d Cir.

1954). © 3

‘Even i in cases s charging conspiracy siedan! ‘the narcotics

laws, where mere possession of the narcotics gives rise to

at! ie United States v. Agueci, 310 F. 2d 817 (24 Cir. oe) ;

Peas

_ Petition for Writ of Certiorari ate 21

United "States v. Massiah, 307 F. 24 62 (2d Cir: 1962).

Here, where there is no such presumption, this Court ought

| _ to require proof of. knowledge of the interstate object of

Che: conspiracy in ordér to sustain the convictions.

4 The Evidence Was Insufficient to Show Knowledge That “19

Interstate Travel Was a Crime.

; Three of the Petitioners were eonvicted of snbetanitve ae

" acts of traveling in interstate commerce in’ aid of the local |

. illegal gambling activities, as -well as, conspiracy. Cer-

tainly it is not; contended here that these Petitioners did |

not know they were crossing state lines. However, it is —

suggested that under the federal statute here involved

there must be shown knowledge that the interstate travel

. was prohibited by the fede’ tute. Without such knowl-

edge, there could not be the requisite intent ‘under the Act.

This case poses thé question of whether the homily that:

‘ignorance of the law is no excuse’’ applies where the al- ..

leged violators did not know of the federal law prohibiting

- interstate travel, and where shortly after the learned of

it; they ceased their interstate travels. Under those cir- - .

bean théir convictions cannot properly ‘be sustained. ane

na ‘The Trial Court Admitted seiner Which Was the

ba .

ri ri -

. YO

“Fruit of the Poisoned Tree.”

‘The trial judge had granted a motion for suppression

. of evidence on the grOunds that the raiding officers had

neglected ‘to announce their identity and purpose before

- breaking’ into the premises. United States v. Barrow, 212

F. Supp. 837 (E. D. Pa. 1962) (Appt. Append. 688-88a). :

Since*the date of that opinion, this: Court has reached a

- similar-conclusion. Ker v. California, 374 U.S. 23 (1963).

However, during the course of the. trial; the ‘proffered: _—

testimony of several witnesses raised the issue ‘of the effect

of the suppression order and. what evidence would consti-

S tate the “fruit of the poisoned tree.”” See Silverthorne _

ee ae — Petition for Writ of Certiorari

Lane Co. v. ‘United Staies, 251 U. S. 385 (1950) ; ; Nardone

v. United States; 308 U. S. 338 (1939). ‘The testimony of

- each such witness was not merely cumulative but was’

- aging in some specific respect. Thus, it is highly significant

to the Petitioners herein whether the eyidence, was properly

admitted: In addition, the precise issues raised here have

never been decided by this Court, and bring into focus the

precise scope of the ‘‘fruit of the poisoned tree’’ doctrine.

(a) Smith: The witness Smith, who was found on the -

premises on the night of the illegal raid, was asked the fol-

lowing question on voir dire and answered:

' “Q. Now, if the Government. agents had come to

you and there wasn’t any raid, there was nothing in

‘the paper about a ‘raid, and they didn’t find: you on

' the premises, and if they said to you, ‘Mr. Smith, we

think you know something about this, Will you tes-

- tify?’ Would you have testified? Now ao you under-

‘Stand the question?

} A. No. I wouldn’t have testified.” (Appt. Ap-

pend. 458a-459a) “

” Despite this answer, and over objection of counsel, the ._

witness was .permitted to testify.

It is thus submitted that this testimony was the ‘‘fruit

of the a arg tree,’’ and ‘that the testimony should have

been excluded. See Wong Sun v. United States, 371 U..S.

ne _ 471 (1963), and cases therein cited. In Fahy v. Connecticut,

375 U. S. 85 (1963), this Court concluded that admissions.

of defendant induced by confrontation with evidence seized -

illegally were inadmissable at his trial. Testimony of a

qeepeeneemameneeeerennees

witness induced by his discovery at an illegal gambling go

_ enterprise should likewise be excluded.

; If the identity of this witness had ‘been dineorered as

‘a result of the illegal search and seizure, there would be

little doubt that the testimony would be .excluded as the

fruit of the poisoned tree. See Wong Sun v. United States,

_ also compare Smith é Bowden v. United woiaed 324

Petition for Writ of Certiorari. Me 23, :

RF. 9d 879 (D. C.-Cir. 1963) ‘with Méiindon. United States, ¥

329-F’, 2d, 238 (D. C. Cir. 1964). Here, however, f prese-

cution contended, and the Third Circuit held, that t Smith’s

identity had been discovered from independent | sources

. prior to the illegal search, and thus was admissible because

there: had been no exploitation of official illegality, citing

. Sores

Costello v. United States, 365 U. S. 265, 280. (1961) ; Burke, . 3

v. United States, 328 F. 2d 399, 420 (1st Cr. 1964), cert, den.”

379 U. S.. 849 (1964) ; Coplow: v. United States, 191 F. 2d

749 (D,.C. Cir. 1951), cert. den, 342 U. 8. 926 (1952). Even - ff

if this were correct, this Court should determine’ whethegs”

_ the answer of the witness isa ie the use: of his

OF: y

(b) Goaiat hvilbice witness, who was one of the in-

“dividuals found on the premises at the time of the raid,

- was called to testify, and the prosecutor stated at side-bar .

that the witness had been known prior to the raid and that...

he had not given any statement at the time of the raid. On

- the basis of this statement. the defense counsel’s objection —

was overruled, and the witness was permitted to testify. .

After the witness had testified and disclosed: that he had

‘given statements yat the time of the raid, defense counsel

of the jury, during which cross-examination he testified

‘that he would have given a statement even if he: had ‘not

been seen at-the raid (Appt. Append. 441a). ° “However,

Was permitted to conduct.a voir. dire ‘out of the. presence:

-. from the circumstances surrounding the raid and interroga-.

tion of that witness, it became evident that his ‘statements - |

and identity. were obtained as a direct result of the govern-

‘ment’s unlawful conduct.. All of the occupants of the build-—

_ ing were required to hold their hands over their heads for __

a: considerable period of time; but this witness could not: .

do so because he was suffering from broken ribs, so he

notified one of the agents who permitted him to lower his’

hands. The agent then asked’ him questions but did not

advise him of his right not to make a statement; nor of his ‘

right to consult an —— The ee of his detention

y 4

“~ sand coercive nature of the entire raid and his interrogation

is readily apparent from - a of the record. This .

A irae ek HEE * ete ne gers

24° Petition for. Writ of Certiorans ©

Court should pot permit $8eh testimony to be used, since

it was obtained by exploitation ‘of official illegality: Peti- ~

tioners are not attempting to assert, another’s constitutiohal

~ rights; thus, they do not Jack standing to raise this “question ;

under Jones v. United States, 362 U. §. 257, 261-262 (1960),

as concluded By the Third Circuit. On the contrary, they are

- Yaising questions as to how far their own constitutional

‘rights, protected by the trial judge’ s — on the pretrial

shoten, do extend. |

‘ (¢) Le Battaglia oa Thomas: ‘Two additional wit- :

_ nesses were arrested or detained as they were walking out

the door of tle premises as the. FBI agents entéred to

make the raid which was subsequently held to be illegal.

It is true that the trial judge ruled that the unannounced i sate ell

entry into the inner door rendered the search unlawful, >_ :

_. and these witnesses had already passed through the outer —

_ door prier to the breaking of‘the inner door. The trial .-

_ court. did not pass upon.other allegations of illegality of |

oe the entire raid. _Howéver, even without passing on such

contentions, the witnesses were discovered, illegally de- ;

| tained, and their testimony was obtained as‘a result of the,

illegal conduct of the. government under the totality of the

. ‘cifcumstance., The witnesses Were arrested or detained ~

* while still on the premises and within the curtilage..- This

is not a situation where officers on public property, or on

|* private property with permission, ‘observed activity. and

- - then made a lawful arrest or detention as a result of their

‘observations. The officers here were on the premises ille- .,

gally in the process of sand emi warrants im-

- Property obtained.

L (d) Grassi: ~~ FBI per was veiemitiod to , testify %

‘\\ “about interviewing one of: the defendants (Grassi) ‘on: Feb-—

ruary-1, 1962, subsequent to the raid. While the trial judge

\ er! the j jury that the —s would be binding = |

:: Petition for Writ of-Certiorari == 5

as to defendant Grassi (since made after the termination -

of the, conspiracy), it overruled an_ objection on the

- ground that the substance of the: statement would implicate

other defendants and ‘that the identity of defendant.

Grassi could not have ‘been-discovered but for the illegal

raid. On voir dire it was learned that the FBI had obtained °.

from a ‘confidential informant’’. who was present at the

‘raid, the nickname “‘Snorky,?? which. nickname was later

checked. with Camden police and they learned that it re- .

_. ferred to defendant Grassi. However, FBI agent Walker

admitted that although he had previously known that ‘‘con-

fidential informant’’ and obtained information from him on -

other matters, he had never gotten information about this

‘game until after the raid. Since the trial court refused

_ to force the government to disclose the identity. of the in-

_ formant, it was impossible for defendants to. cross-examine

to determine whether the informant would have given the

information had it not been for the. raid.

ante yp request of defense counsel, the trial court did

. instruct the jury that the testimony about Grassi’s state-

ment would “be admissible only against Grassi, and that ©

"the testimony should not -be considered against the others -

‘. named in the statement (Appt. Append. 223a). Nonethe-

less, the purpose’ of the prosecution in introducing the

statement could only have been to: produce evidence against

the other defendants (including Petitioner Pillo) who were

' mentioned therein, since-the statement was self-serving or

exculpatory as to defendant Grassi. In fact, Grassi was

acquitted by the jury.. Thus, the statement was prejudicial’

to the other defendants, including Petitioner. See Tripp v.

7 United States, 295 F. 2d 418 (10th. Cir. saat

"6 The Trial Court Should Have © Granted a New Trial and

Severance.

' Before the trial t an, each. of the (eee. salt

‘for a severance, . This | as granted as to one defendant

+ @

36". ay * Petition for Writ of Certiorari os

ue dau only with conspiracy), but was denied as to ion ;

of the other defendants.

a During thé trial evidence v was ‘admitted as to some ae

of the defendants wHich was inadmissible as‘to others and —

prejudicial to them. For example, there. was testimony

that one of the defendants (Marzilli, not .a Petitioner)

Made a statement that the ‘‘new law being pushed by

ee Bobby ‘Kennedy”’ concerning the interstate nature of the

enterprise (Appt. Append. 107 a). This was highly prej-

udicial to all of the defendants, since it bore directly on the

question of intent and knowledge. Even an instruction by

the Judge that it should be limited to that defendant alone’

could not and did not wipe fromthe jury’s mind the im-

- plication that the other defendants must have known about

the law. In addition, the statement by*defendant Grassi,

- referred to above, was damaging to. other. defendants, in-

eluding at least one of the Petitioners.

There can be no question but that the trial judge prop-

erly and frequently exhorted the jury at various stages in

the proceedings to consider each defendant individually.

The judge was. scrupulously fair in his, conduct of the

trial, and accorded to defendants every procedural protec

tion which was possible. ‘Furthermore, the jury apparently

’ did attempt to consider the evidence against each defendant:

- individually, since it did acquit one defendant entirely and

found all of the defendants charged therein not guilty on

‘three substantive counts. However, it is respectfully sub-

mitted that it was impossible for the jurors to wipe from

their minds all of ‘the evidence which was excluded - or

7 limited. In fact, even counsel reviewing the printed record

at leisure finds it impossible to compartmentalize the evi- -

dence completely. The.jury was faced with the impossible

task of distinguishing those defendants charged in substan-

tive counts with traveling or transportating others across

state lines, from those defendants charged: with aiding

and abetting, and with distinguishing the evidence relating

to those charges from the evidence relating to the existence _ :

- @

--Petition'for Writ of Certiorari Seal

of conspiracy. There can be little doubt that the jury sim-

ply took the easy way out by finding all of the defendants

guilty of conspiracy, regardless of their participation in the

- entire scheme of operation. This impossibility is high- —

lighted by the fact that the trial judge subsequently granted

a new trial to those charged with aiding and abetting; .

although this resulted from the inadvertent omission by

the trial judge of one element in the charge of aiding-and ~~”

. abetting, it is quite likely that the jury was completely

’ confused as to the distinction between-the elements involved .

in aiding and abetting and those involved in conspiracy. It

is further highlighted by the fact that the Court of Appeals -

concluded: that the evidence was completely insufficient

to sustain the ‘conviction of one defendant (Bonanno). -

Thus, the belief in the fiction that: jurors are able to,

segregate such evidence in their minds and to exclude .

inadmissible evidence upon instruction during long joint’

trials, such as has been so roundly criticized in so many

judicial opinions, is stretched to the limit here. ‘See Delli

Paoli v. United States, 352 U. S. 232, 246 (1957) (dissent) ;

Jackson v. Denno, 378 U. 8. 368, 388, 389 (1964); People -

v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265 (1965);-State v.

Young, 46 N. J. 152, 215 A. 2d 352 (1965) ; United States v.

Bozea, 35 U.S. L. Week, 2114 (2d Cir. Aug. 1, 1966). Also ~

see 78 Harv. L, Rev. 211, 213 (1964).

_, This Court has emphasized a trial judge’s “continuing

duty at all'stages of the trial to grant a severance if preju-

> dice does appear.’’ Schaffer v. United States, 362 U. 8:

. S11, 516 (1960). Accordingly, even if the trial court did -

not abuse its discretion in refusing a severance in advance,

of the trial, certainly when requested by each of the de-.

_fendants at the close of the evidence, the prejudice did

appear,’ and the trial court should have granted a new

“ ‘trial and a severance so that each defendant could be tried’

free of such prejudice. oF eng erdhs

a =-28 ¢ - Petition for ssh ti Certiorari as

¥%, Grand Jury Testimony Was Used tiilicighite? to Cross-

Examine One Witness and. a8 “Past Recollection Re-

corded” of’ Another.

_Onie-of the chief witnesses sdsiemt the defendants was

a witness named Wacks who had told the prosecutor shortly

before trial that he did not want to testify. Despite knowl-

- edge of his reluctance, the government was*permitted to

_ plead surprise and to cross-examine its own witness, utiliz-

_ing his testimony given before the grand jury. For ex-

ample, on one occasion Wacks was examined about the

participation of Petitioner Barrow in settling disputes

(Appt. Append. 127 Ja-129a).. Even though the testimony

was simply inconclusive and vague, and: the witness

‘when shown the grand jury testimony claimed that it

did not refresh his recollection, and could not say affirma-

- tively that it was true when given before the grand jury

(Appt. Append. 129a-134a), the prosecutor was permitted

- to plead surprise and to cross-examine from the grand jury

testimony concerning this incident (Appt. Append. 151a-

155a).°. Finally, on examination by the judge, the witness

did describe the alleged incident (Appt. Append. 156a-

158a). On still another occasion the witnéss was examined

_as to who brought the money to the table to open the game

(Appee. Append. 143b) ; when he stated he was- unable to

. recall, he was shown his grand jury testimony allegedly

- to ‘refresh his recollection (Appee. Append. 165b-170b),

and ‘then the grand jury .notes were utilized to Gross-

examine him (Appee, Append.’ 171b-173b). This occurred

on several occasions, and: éach, time the grand jury notes -

supplied evidence which was damaging to defendants. (As

| noted, the above references to Petitioner Barrow were the

main references:upon which his conviction is based.) On

. , several occasions the defense objected to the Government’s

| plea of surprise and the use of the grand jury testimony,

requested that the statements made before the grand: jury

-. be stricken and that the jury be instructed that this was

Petition for Writ of Certiorari = 9

or Slips, Rata

-not substantive evidence. These.requests were gene

refused (see Appt. Append. 162a, 168a-172a, 175a-177a,

180a-181a), except on one occasion where the testimony

_the subject as being one of the defendants (Appeée. Append.

-170b-171b; Appt. Append. 134a-135a ; 136a; 139a-151a; com-

pare 177a-182a with Appee. Append. 188b-190b). In one

instance the jury was instructed as to the effect of striking .

that testimony: (Appt. Append. 181a-182a). a

In their points for charge, defendants requested that

the jury be instructed that the testimony given before the

grand jury not be considered as substantive evidence. Such. ,

an instruction was not given by the Court. Concededly,

no exception to the charge was taken by defendants. How-

ever, it is not the failure of the Court to charge which is

being urged as error; rather it is the admission into evi-

‘ dence of the grand jury testimony, both questions and

At one point in the trial, the prosecutor was permitted

" to.cross-examine one of the government’s witnesses named

DiGaetano about alleged co-conspirators, and.to use his

| grand jury testimony as a past recollection recorded (N. T.

1422 et seq.). On this occasion there was absolutely no

basis for a plea of surprise since the witness had not testi-

fied in a“ manner contrary to his testimony ‘before the |

grand jury; apparently he had simply forgotten. None-

~ theless, the court permitted the prosecutor to cross-examine

. from ‘the grand jury testimony, which took place March 8,

1962, even though the events had taken place prior: to

January 20, -1962... Not only was: the testimony obviously

not contemporaneous with the event, as required to con- .

stitute a past recollection ‘Tecorded, but the witness had

‘been questioned before the grand jury on two occasions,

on both testifying completely inconsistently. Yet, he testi-

_ fied that ‘‘everything that is in the book”? (meaning the’

- notes of testimony) was true. Since these were internally

ne Anconsistent, none can be taken as an accurate past recollec-

a P 4

gee

o @

30 , ; Petition for Writ e Certiorari-

tion rescrded. ‘At any rate, the. tli admitted: on the ;

stand to being a liar (Appee. Append. 229b).

: Since the’ above testimony all related to evidence highly.

Gaeee ae prejudicial to these Petitioners, if*the trial court erred in

its ruling, the Petitioners were See of a fair trial.

CONCLUSION.

For all of the foregoing reasons, this Petition for Writ.

- Respectfully submitted,

Morton Wrrenx,.

911 Finance Building,

Philadelphia, Pa. 19102,

Stanrorp SHMUKLER, |

905 Robinson Building, — .

_ Philadelphia, Pa. 19102, 3

Counsel for Petitioners.

\ APPENDIX a.

UNITED STATES COURT OF APPEALS

For THE Timp Crcurr en* 2

a ee :

. . °

_ Nos. 15093 to 15097

UNITED STATES or AMERICA,

: Appellees:

».

GEORGE BARROW : |

BENNY BONANNO —_-

FRED DrPATRIZIO ~ |):

. JOSEPH MATTIA -

PASQUALE PILLO, — -

4 Appellants.

APPHALS io THE Unies eae Sieeesiens Court FOR THE

| Eastern District oF PENNSYLVANIA

3 Argued Sevkeinber? 14, 1965 -

Before eae Chief Judge, and "KALopwEr mak" ane

Circuit Judges.

OPINION OF THE CouRT

(Filed ae 18, 1966)

By Surry, Circuit Judge. .

The appellants: were tried by a jury — convicted on

the first count of: a multiple count Pp somacus: re them

“(31) .

ee Appendia A Sale e -

with conspiracy to violate § 1952 of Title. 18 U. S. C. A.

Pillo. and DiPatrizio were also convicted ‘on each of three

- counts charging substantive offenses. The present appeals

are from the judgments entered on the jury verdicts.

- The pertinent provisions of the statute with which we

are. here ony ago follows: —

- §*(a)/Whoever travels in interstate“. . . com-

merce or uses any facility in interstate . . . commerce, -

. . , with intent to— : | er

_ (3) . ... promote, manage, establish, carry: -

on, or facilitate the promotion; management, estab-

lishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts tb perform any of

the acts specified in ene vic < aes shall be

fined . .:. or imprisoned . . . , or both.

- «() As used in this section ‘unlawful activity’

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

. , in violation of the laws of the State in which

- committed . Pe | ete

Between the middle of: November 1961, and the middle —

of J anuary 1962, the appellants were engaged in various

capacities “in the operation of 4 gambling casino at 237

Cherry Street, Reading, Pennsylvania, in violation of State

laws, 18 P. S. §§ 4603, 4605 and 4606. The aasino, furnished

and equipped asa dice room, occupied the entire preane

aed of a commercial building. ! | .

Surricrecy OF Evience

‘The appellants maintain: that the evidence was insuf-

ficient. to support their convictions on the charge of con-

spiracy. Pillo and DiPatrizio also urge that the evidence

was insufficient to support their convictions on the substan-

Appendia A ee Sees el

tive charges. It is conceded that there was ample proof

that they. had been engaged in ganibling operations in vio-

- lation of Statedaw. However, the appellants argue that the:

evidence was insufficient to support the conclusion that they

_« had violated the federal statute,

° We think it advisable to state at the outset the general

_ principles by which we must be guided in passing on the suf-

ficiency of the evidence relating to the charge of conspiracy. ~—

___ The crime of conspiracy, as defined in § 371.of Title

18 U. 8. C, A., is seldom susceptible of proof by direct evi-

- dence. Proof of the crime may rest-as it frequently does,

on indirect or circumstantial evidence. The existence of

a conspiracy may be inferred from evidence of related facts

and circumstances from which it appears, as a. reasonable

and logical inference, thatthe activities of the participants: _

in the criminal yenture could not have been carried on ex-

' cept. as the result of a preconceived: scheme or common

understanding. Glasser v. United States, 315 U. 8. 60, 80

(1942) ; United States v. Amedeo, 277 F. 2a 375 (3rd Cir.

| _ 1960); United States. v. Monticello, 264 F. 2d 47 (83rd Cir..

1959); United States v. Migliorino, 238 F. 2d 7 (3rd Cir.

1956). ne, eae ae | ,

_ There was- substantial evidence from which the. jury-

could have found that Pillo, DiPatrizio and Mattia travelled

_ regularly from their homes in New J. ersey to, the casino in

Reading, where they were’ employed as ‘‘‘ladder men:??

Each of them wa’. stationed at a dice table as an overseer -

and, as such, ‘‘facilitated”’ the games as they progressed. ah

As overseers their principal function was to police the

games on behalf of the ‘‘house.’’ The evidence was more

than sufficient to support the jury’s determination that Pillo

and DiPatrizio were guilty of the substantive offenses and

that they and Mattia were involved in the conspiracy. }

_ While there was no direct evidence that Barrow knew.

. of the interstate aspects of the gambling enterprise, there

was ample circumstantial evidence from which the jury

could have inferred that he did. There was evidence from:

34 Rede aco Appendia A °

which the jury could have found that Barrow managed and .

promoted the gambling operations. He generally super-.

vised the employees, including those who came from New

Jersey; he was the final arbiter of disputes relating ¢o the

roll or call of the dice; he made the final decision when any ~

be admitted to the casino; he prpvided ‘‘house money”’

when the dice game began ‘and: removed excess cash from

the table as play continued; and, he was in. almost daily

_ association with the employees. ‘At times Barrow Was as-

sisted by Mattia in the performance of his many duties. A. _

more complete summary of the evidence relating to Barrow

is contained in the opinion of the court below. 229 F. Supp.

722, 726. .

We believe that the evidence as a whole,.viewed in the

light most favorable to the prosecution, was susceptible of

‘a reasonable and logical inference that Barrow, as’manager

and promoter, was fully aware of the scope of the illegal

enterprise, including its interstate aspects. See United

States v: Palladino, 203 F.. Supp. 35, 41 (D. C. Mass. 1962).

The inference was not only justified, it was almost inescapa- _

_ ble, It is inconceivable that Barrow would have placed

employees like Pillo, DiPatrizio and ‘Mattia in positions of |

trust without knowing who they were and where they came

. from.

-" The evidence relating to Bonanno’s waxtidention in the

_ conspiracy is summarized in the opinion of the court below.

229 F. Supp. 722, 727. We think that this evidence was in-

sufficient to warrant ———— of the issue of his guilt

to the jury.

eee appellants, relying on United States v. Honeyoutt,

311 F. 2d 660 (4th Cir. 1962), argue that the Government’

was required to prove that the interstate travel was an in-

tegral part of.and essential to the gambling aperations.

- The cited case does not support this argument. The enact-

ment prohibits in the broadest terms interstate travel with

the requisite intent followéd id the performance or attempts

~ penn.

Appendiz A ein

' .to perform any of the acts’ specified in subparagraphs

(a)(3), supra. There is nothing therein which limits its

application to interstate travel essential to the unlawful

activity. See. Bass v. United States, 324 F. 2d 168 (8th

Cir. 1963). Rete. oO NS -

~ Constrrurtonaniry or Stature. , 3

The appellants contend that the statute, as applied to |

the facts in this case, is unconstitutional. This contention -

_ is predicated on the premise that the gambling enterprise

here is question was a local activity beyond the reach of

Congressional authority. It.is argued that the federal en-

actment constituted an encroachment upon the powers re-

served to the States under the Tenth Amendment. . The

question raised by this argument was fully discussed by ‘the

trial judge, 212 F: Supp. 837, and we agree with his well

reasoned opinion. Moreover, there are other cases in which

arguments similar to the one

Ill. 1962). We add-but one

nt does not operate as a’

* At the trial the Government called asa witness one

M. Earl Smith, a patron of the casino, who was permitted —

to testify over the timely but somewhat ambiguous objec: .

\ °

Bay a J a oe 6 oo 4 | _ Appetidie A

Tape 88 tion of defense éounsel: The appéllants urge that. since the

“s+ +. “identity of the witnesses was'learned as a restlt of an illegal’

a be ote Xe search," his testimony was inadmissible under the exclusion- .

fey! |) Same ‘ary rule of Wong Beles v% United States, 371 U. S. 471, 487-

eal | Denar oes aa * There was sins ohne that the identity éf Smith 2

Sea ar - illegal seareh. ‘Smith was admittedly a frequent visitor to.

| je ae oat four occasions ais he éither entered or’left the premises. .

Seen ft «im the company of. one Bechtel; in Fact,. on these occasions

he ous he and Bechtel.were ‘photographed. The agents learned

/ ~\. frém personal. observation and a check of public, records :

4: Niger epee “that Smith was thé owner of a black Lincoln which: was rege

ESL ES Ses aie oe : Mitosee to him at his | home address in Reading. Ori the occa-\

ie ss eee “sions when Smith visited’ the casino this vehicle.was seen *

seer Bi ee eee ge :05: P..M,.; on January: 49, 1962, approximately two

a Re ade oars prior to the illegal | search, Smith was again observed

CP Mos 7 yin either” ‘of’ two parking lots located near ‘the premises. - %

PAG oe entering the €asino, in’ the company of. Bechtel. By this. —

2 a ys oe ae time the. identity of. Smith was well known’ to, the agents.

GR ie aan Ee ..Assuming, but not deciding, that the “fruit, of the .

yrs “7. mony. of a witness: whose identity is learned as a result of \e

> pe aa oan illegal’ search, it is inapplicable to the facts of the: -

SENT oy 2, from of ag.2, consequénce of lawless official acts, not evi- .

CIN RS detice’ obtained from an, ‘independent? source.’ ’’. Costello

Cows Se 8. . o United States, 365 U.S. 265, 280 -(1961), -eiting Silver-

oi ie eereaaa thorne Lumber Co. v. United States, 251 U: S/ 385, 392°”

ees’ 1 Sea eee -(1920)." ‘The information as.to Smith’s identity was. gained

pas a »- ' from personal observation ‘and did not become unusable

a ae “merely because the same information _ was subsequently

t Me er After Several weeks of stirveillance the. federal agents, armed

’

° +

at 2

ae arrest. warrants, forced their way: into the casino.‘ The witness ~~

gine. “Smith wis found on the ‘premises. The court below found that/the

memet Ga "oc #) execution of:the warrants and the search which followed were“illegal.

Zi es tee ie, ee ee nee oe ne ee See ee .

a “ef 1 oy ee: Ree, ti: tee : ? sae

Serre ge ¢ a Ps.

Po NE gee TS i F

“yas ++) +. + poisonous tree’? doctrine may be invoked to bar’ the\testi-. ..

ee ‘instant. ease. The doctrine ‘excludes evidence obtained. sae

> ill °

‘Appendia A : 2 gee ees “87 -.

discovered: during the illegal. search. Burke. v. United

States, 328 F. 2d 399, 420 (1st Cir. 1964), cert. den. 379 U. 8.

849; Coplon v. United States, 191 F, 2d 749 (D. C. Cir. .

1951) , cert. den. 342-U, S. 926. Absent any exploitation of

the illegality, the testimony of Smith .was clearly admissible.

« * Also ealled as witnesses were Leonard Labattaglia and °

Walter: . Thomas, casmo patrons who were detained upon. °

‘« . leaving the premises prior to the illegal entry by the agents.

When their identity was ascertained they. were permitted

to leave. The appellants. assert.that since the identity of

: the witnesses was discovered as the result of an illegal de-

‘tention their testimonf¥ was inadmissible. ‘Even if the .

. detention | was illegal, the appellants lacked standing to

challenge it. Cf. Jones v. _ United. States, 362 U. S. 257,

261-262 (1960).

‘The appellants contest the propriety of the court’s

action i in admitting the testimony of a federal ,agent con-

cerning a post-conspiracy interview with one. Rocco Grassi,’

who was, named in several counts of the indictment but

acquitted. At the eonclision of this testimony the court

- | carefully admonished the j jury that the statements made by

Grassi during the interview could be considered only in his °

ease and not in that-of any-other defendant. There was

clearly no error in the admission of the agent’s testimony.

United States v. Miller, 340 F. 2d 421.423 (4th Cir. 1965) ;

/- United States v. Viale, 312-F. 2d 595,.602 (2nd Cir. 1968), .

- ’ eert; den. 373 U. 8. 903; Castro v. United States, 296 F. 2d.

540, 542 (5th Cir. 1961). We should add that the statements

d made by Grassi during the course of his interview were not

"prejudicial to: any of the appellants ; they: implicated only

Frank Losealzo, 2 a defendant who was acquitted. /

—

Use OF y Gaamn J ‘ORY Gaiden

The prosecution called as a witness one Charles Wacks, ae

an liabitué of the casino, who suffered from what may be

described as convenient lapses of memory. When it became

apparent that the a ite d of this witness was vague and

38. | | Jeeealin A

‘evasive the trial 1 judge perbitted the use of portions of

. his grand jury testimony for the purpose of refreshing his

' ‘recollection. A sithilar usé’of grand jury testimony, was

“made in the examination of Joseph DiGaetano. The ap- .

pellants contend that the action of the court was error.

It has-been firmly established since United States v.

Socony-Vacuum Oil Co., 310 U. S. 150, 233 (1940) that the

- ‘‘yse of grand jury testimony for the purpose. or refreshing ~

the ‘recollection of a witness rests in the sound discretion

of the trial judge.’’ United States v..Weinberg, 226 F. 2d

161, 168 (3rd Cir. 1955), cert. den. 350 U. S. 933; Allis-

_ Chalmers Mfg: Co..v. City of Fort Pierce, Florida, 323 F. 2d

233, 238 (Sth Cir. 1963). We find no abuse of discretion

in the instant case. |

In the. few instances in which: the pore jury testimony

- failed to refresh the memory of the witnesses, portions of

it ‘were received as evidence of past recollection recorded. :

_ This was not an improper use of such testimony. United

. States v. Riccardi, 174 F. 2d 883 (3rd Cir. 1949); 3

Wicmore on Eviwence, § 754, 755 (3rd Ed. 1940).

Several other questions are raised as to the admissi-

bility of evidence. -We have considered them and find that

_ they‘are frivolous. and without merit.

. The appellants assign as error the alleged faibare of

the trial judge to adequately instruct the jury as to the

limited purpose and effect of the grand jury testimony. ‘

We note that the ‘‘relevant charge’’ is not reproduced in

the appendix as required by our rule 24(2)(é), 28

U. 8. C. A., and the brief contains no citation to the-original

record. This defect would warrant a dismissal of the as- _

signment without:consideration. Marcimak v. West Indies

Investment Company, 299 F. 2d 821 (3rd Cir. 1962);

Gendron v. United States, 295 F. 2d 897 (8th Cir. 1961).

However, we prefer to dispose’ of ie matter on other

' grounds. 3

; If there. was any deficiency oF omission in the instruc-

tions giver it was incumbent upon the appellants to note —

a timely objection “‘stating distinctly the matter: to which

Appendiz. A. 0° "> 89°

[they objected] and the grounds of [their objection.]”’

Fep. Ruues Cr. Proc. rule 30, 18 U. 8. C. A. United ‘States

v. Provenzano, 334 F. 2d 678, 690 (3rd.Cir. 1964), cert. den.

379 U. S. 947. This was not done; in fact, there was but

one objection to the court’s instructions and this was

* clearly not germane to the question raised by the present

_ assignment of error. Absent timely objection or a request .

_ for specific instructions, the alleged deficiency in the court’s

. charge may not be assigned as error. Rule 30, supra; .

. Richards'v. United States, 329 F. 2d 188 (5th-Cir. 1964),

cert. den. 379 U.S. 854; Berry v. United States; 271 F. 2d -

. 175 (Sth Cir. 1959), cert. den. 362 U. S. 903; United States

v, Bookie, 229 F.2d 130, 135 (7th Cir. 1956). :

Morton ror SEVERANCE AND FoR SEPARATE TRIALS.

The appellants. complain of the denial of their re-

“: spective pretrial motions for. severance and separate trials

'. _ made under Fed. Rules Crim. Proc., rule 14, 18 U. 8. C. A.

"> cof discretion in the case before us.

We find no merit in this complaint. It is well settled that

such motions are addressed to the sound discretion of.the’

trial judge and his decision thereon will not’ be reversed. in:

the absence of an affirmative showing of an abuse of dis- ”

cretion... United States v. Gardner, 347 F.2d 405, 406 (7th

Cir. 1965) ; United States v. Miller, supra; Milam v. United

‘U.S. 911; Fisher v. United States, 324 F. 2d 775, 780-781

. (8th Cir. 1963), cert. den. 377 U. 8. 999. We find no-abuse

. «

Lastly, the appellants maintain that the denial of their

‘respective motions for a new trial was reversible error.

It is argued that the joint trial was prejudicial: -We are

convinced from ‘our examination’ of the record that the

_ trial was fairly conducted. Indeed, this is conceded .in

the appellants’ brief. - POR an Rh pa a

| The charge of prejudice appears to rest on the sup-

" position that the jury was confused. Apposite is the state-"

' ment in Opper v. United States, 348 U. 8. 84, 95 (1954):

Ss: : ;

o-- EE

und : ‘

Sop Erne ORE ERT

ee 2 ‘cates ig ‘a

“Tt was within the ‘sound ‘Sseretion of the trial

judge as‘to whether the defendants should be, tried

together or'severally and theré;is nothing’ i in the record

to indi¢ate an abuse of such diséretion when -peti-

tioner ’s motion for severance was overruled .... To.

say that the jury might. have been confused amounts

to nothing more than an unfounded speculation that

. . the jurors disregarded clear instructions of the court

. im arriving at their verdict.: Our theory of trial relies

upon the ability of.a jury to follow instructions. There

is nothing in this record to call for reversal because ,

‘of any confusion or injustice arising from the joint

; trial. -

The judgments of the court below as to all the appel-. -

‘ean. except Bonanno, will be affirmed. The judgment as

’ to. Bonanno will be reversed and his case will be remanded ._

with an instruction to enter a judgment of acquittal.

Ss —

i reea eer, a

ae "APPENDIX 8. | “c

Pace “UNITED STATES COURT OF APPEALS

| For THE THIRD Crourr os

‘No. 15,098

UNITED STATES OF AMERICA.

mag |

GEORGE nor BaftOW. a/k/a “ teenies ‘Senet

Appellant

(D. 0. Criminal No. 20997) |

On howe: Pou THE Weis States Distaror Court

FOR THE EaAsTERN District OF PENNSYLVANIA

ae : : ; ©

Prsienks in arenes and ioe 4 Circuit Judges.

_ JUDGMENT.

This cause came on to be heard on.the veootd from the

United Statés District Court for the Eastern District of

Pennsylvania and was argued by counsel...

; On consideration whereof, it is now here ordered and

‘adjudged by this Court that the judgment of the District

Court, filed September 3, 1964 as aménded N ovember 18,

1964, "be, and the same is hereby affirmed..

Cacsinewait ee ee

; M. Exazasern Frereuson, — ;

Roe . ' Deputy Clerk. .

July 18, 1966 Seihitier Gases

Os Aor

4 la

42 een: aot _Appendic B

UNITED STATES COURT OF APPEALS ce

is THE Ture senso at

fi e f

) ! , Q F /

‘>

> 7 1 Ne, 16,006

UNITED STATES OF AMERICA.

PRED Dr PATRIZIO, he “PLIVVIE THE FISH,’

a/k/a “WHISPERS”,

3 | Appellant

(D. C. Crimirial No. 20997 )

-Oyn Appgan From tHe Unrrep Srarzs District Court,

_. FOR THE Eastern District or PENNSYLVANIA

‘Present: Bicos, Katopner and Smita, Circuit Judges.

«JUDGMENT. |

This cause came on to be heard on the record from the

United States District Court for the peed District of

Fesnayivania and was argued by counsel.

- On consideration whereof, it is now eee ordered “a

adjudged by this Court that the judgment of the District

Court, filed September 3, 1964 as amended November 18,

"1964, be, and the same is haroby affirmed.

_ Arrest: :

M. Exizasera Funovsoy, °

| Deputy Clerk.

July 18, 1966

-—

_ 6

_ Append B pees : a

UNITED STATES COURT OF APPEALS

- — ‘THE Tarp Qrscurr ae

Cases ena Sees | No 1 15,096

UNITED STATES OF AMERICA -

“UO.

“JOSEPH MATTIA, ssficl “G@ASSY”,

Appellant

. (. C. Criminal No. heer

‘On APPEAL From THE Unrrep Srates District Covrr

FOR THE Eastern Distkict OF F PENNSYLVANIA

. | Present: Bross, eee and Sik Circuit Judges.

JUDGMENT. sear

.-. This cause came on to be heard on the ieok: from the

‘United States District Court for the Eastern District of

Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and

_ adjudged by this Court that the judgment of the District

. Court, filed September 3, 1964 as amended beac 18;

‘Arrest:

Be SL ores MM. Eumzasers Furcvson,

‘eee: ae a Q : ee Clerk.

July 18, 1966.

sae ate Ee Appendia B

UNITED STATES ‘couRT OF: APPEALS

' For: THs TeIED Cmourr

No. 15,097

UNITED STATES OF AMERICA

At oe | io

PASQUALE PILLO, a/k/a “HUSKY,” ——

Appellant

(. C. Criminal No. 20997)

On AppEaL Fhox THE UNITED Srarns — Court

FOR THE Hastern District or PENNSYLVANIA

- Present: Biss, Katopyer and Situ, Circuit Judges.

, JUDGMENT. _

' ‘This cause came on to be heard on the record from the

United States. District Court for the Eastern District of

Pennsylvania and-was argued by counsel. |

On consideration whereof, it is now here ordered. aad

adjudged by this Court that the judgment ‘of the District

Court, filed September 3, 1964 as amended November 18,

'. 1964, be, and the same is hereby affirmed. hierocnys

- Arrest: ae oh

M. ExizasetH F'ercuson,

Deputy Clerk. .

July 18, 1966

“Dated: August 30, 1966

AppendicC = ss 4B

APPENDIX 0: |

UNITED STATES COURT OF APPEALS

“? For THE THD Crrourr

———

Nos. 15093, 15095, 15096, 15097 .- 4

UNITED STATES OF AMERICA,

Appellee,

GEORGE BARROW, FRED DiPATRIZIO, JOSEPH

MATTIA anp sieniadnoareas PILLO,

_ Appellants. -

ORDER

SUR PETITION FOR REHEARING.

- Present: Bices, Chief Judge, McLavcuun, Kaopner,

Sraney, Hastrz, Ganzy, Smirn, FrezpMan and Szrrz,

Circuit Judges. Se St ee

The petition. for rehearing filed by

GEORGE BaRrow .

Frep DrParrizio

. JosepH Martia - —

PasQuaLE Pr.10

in the ahevs entitled case , having been’ submitted’ to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

Fa regular active service, and ‘ho. judge who concurred in the

deeision having asked for rehearing, and a majority of the

_ circuit judges of the circuit in regular active service not - oh

having voted for rehearing by the court in bance, the ‘peti--

. _ tion for rehearing i is denied. is.

By THE COURT,

” Winam G. Sora,

Fudge.-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.