Opposition Brief — Teitelbaum v. United States

In the Gupreme Court of the United States

Octoper TERM, 1970 |

No. 1020

BENJAMIN TEITELBAUM, PETITIONER

v. .

UNITED STATES OF AMERICA

No, 1029

JOHN ROSELLI, PETITIONER

.

f gf

UNITED STATES OF AMERICA

No. 1084

MANUEL JACOBS, PETITIONER

V. :

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT 1

MEMORANDUM FOR THE UNITED STATES

, IN OPPOSITION

(1)

Following a six-month jury trial in the United

States District Court for the Central District. of Call-

fornia, petitioners were convicted of various offenses

arising out of participation in an organized scheme =

to cheat for profit in card games played. at the Friars

Club in Beverly Hills, California, The essence of the.

scheme was to induce persons to join in high stake

card games and, while the games were being played,

to station observers at. ceiling peepholes who trans-

mitted playing instructions to confederates by way of

» @leetronic signalling devices, |

Each petitioner was convicted of conspiracy to vio-

late 18 II. S. C. 1952 (use of interstate facilities. for

unlawful gambling enterprise), 18 II. S. C. 231 (in-

terxtate transportation of stolen securities) and 26

U.S.C, 7206(1) (filing a false income tax return by

failing to report: monies ‘obtained: from the scheme) ;

each was also found guilty of at least one substantive

violation of Section 1952, through use of the tele-—

phone and interstate travel, and of substantive viola-

tions of Section 2314 through transportation of checks

obtained from the card games to and from Las Vegas

(see Pet, No, 1020, App, 2). In February, 1969, Teit-

elbaum and Jacobs were sentenced to imprisonment

for terms totalling four years and Roselli was sen-

tenced to terms totalling five years; fines in varying

amounts were also imposed. The court of appeals af-

firmed in a comprehensive opinion which sets forth

the relevant facts and discusses in extensive detail the

major contentions asserted by petitioners in this Court

(Pet. No. 1020, App. 1-36). In the main, we rely

upon that opinion; we believe it appropriate, how-

. ever, to address ourselves to certain of the conten-

Lions raised by petitioners,’

1. Petitioners assert that the court of appeals err-

ed in ruling that, in order to hold a defendant liable

un a conspirator, it was not necessary for the govern-

ment to show that he knew of or reasonably could be

held to anticipate the interstate aspects of the agree--

ment (Pet, No. 1020, App. 13-16); this? it is said,

is contrary. to the orthodox view that the federal ele-

ment must be within the contemplation of the con~

spiracy.’ Percira v. United States, 347 U.S. 1,

The different analysis adopted below, how r, does

not warrant the granting of certiorari in view of the

court's alternative ruling that the evidence was suf-

ficient to show actual knowledge or reasodnable con-

templation that interstate facilities and interstate

travel would be involved." Indeed, this was the basis

' The petition in No. 1034 (Jacobs) is out of time under Rule

22(2) of the Rules of this Court, having been filed 31 days

* the denial of the petition for rehearing. .

nut see our discussion in our Memorandum in Opposition in

United States v. Blassingame, 127 F. 2d 329 (C. A. 2), peti-

tion for certiorari pending, No. 5562, involving the Second

Circuit’s view aa to the proof necessary to make out an offense

under the mail fraud statute (18 U.S.C, 1343). We are pro-

viding counsel for petitioners with a copy of our Memorandum

in Blassingame.

Although the court of appeals specifically dealt in detail

with knowledge in this regard only as to petitioner Teitelbaum

(Pet. No. 1020, App. 16-18), the court’s opinion indicates, as

the trial evidence shows, that the other petitioners were

actually aware or could reasonably be presumed to be aware

of the interstate elements of the agreement (see Pet. No.

1020, App. 21-22).

—

—

ih

4

upon which the case was tried and the trial court’s

instructions unequivocally directed the jury that to

convict on the conspiracy charges it had to find

“knowledge” regarding the interstate aspects of the

scheme.“ This instruction complied with the principle

stated in Pereira v. United States, 347 U.S, 1, 8-10;

see also, Nassif v. United States, 370 F. 2d 147, 152-

153 (C. A. 8); United States v. Mingoia, 424 F. 2d

710, 712 (C. A. 2); no confliet has thus been created

which this Court should resolve.

2. The contention that the card cheating enterprise

did not come within the proscription of Section 1952

because it was not a business enterprise involving

gambling under Califofnia law was thoroughly can-

vassed and properly rejected by the court below (Pet.

No. 1020, App. 3-9), We add that there is no reason

to defer disposition of the instant petitions because of

‘The trial judge instructed on the conspiracy charge (count

one) as follows (Tr. 703-704) :

With respect to [the conspiracy count] it is not sufficient

for the Government to prove that one or more of the de-

fendants agreed to participate in, or to become a member

of, a conspiracy to cheat at cards at the Friars Club.

That isn’t enough. Before a defendant may be found

guilty of Count One of the indictment, the Government

must prove that such defendant specifically agreed to the

use of illegal interstate facilities, or directly agreed to a

scheme which could not be consummated without the

use of illegal interstate transportation or facilities, or

agreed to a scheme in which it was shown that the like-

lihood of the use of illegal interstate transportation

or facilities was great, * * * or that he evidenced his

indirect agreement by substantial participation in the

scheme with actual knowledge of the proposed or com-

pleted use of illegal transportation or facilities.

the grants of certiorari in Perez v. United States or

Rewis v. United States, Nos. 600 and 5342 respec-

tively, this Term. Perez deals with a totally different

statutory scheme where Congress sought by formal

findings to avoid the requirement of proof in each

individual case that there had been an effeet on com-

merce; Rewis involves the entirely different issue of

whether, in the particular circumstances of that case,

petitioners induced the interstate travel of others to

a gambling establishment. Nor is United States v.

Nardello, 393 U.S. 286, inconsistent with the ruling

below (Pet, No, 1029, pp, 11-12). Indeed, in Nar-

dello, this Court cut through form to substance to give

the statutory provision its intended reach.

3. The other individual claims of the petitioners

are also fully treated in the opinion below and justify

but summary comment.

a. The government introduced telephone toll rec-

ords reflecting interstate calls between petitioner Ja-

cobs’ residence in Los Angeles and locations of other

members of the conspiracy during its pendency. In

view of the other evidence of record tying Jacobs to

the conspiracy, the court below concluded that the

jury was properly permitted to consider that the calls

were made by Jacobs and related to the conspiracy

(Pet. No. 1020, App. 22-28), Petitioner Jacobs now

contends that the admission of the toll records vio-

lated Section 605 of the Federal Communications Act

(47 U.S.C. 605). The decisions are, however, uni-

formly to the contrary. United States v. Covello, 410

F. 2d 536, 540-542 (C. A. 2) and cases cited, certio-

rari denied, 396 U.S. 879; see also Nolan v. United

States, 423 F. 2d 1031, 1048-1045 (C. A. 10); Di-

Piazza v. United States, 415 F. 2d 99, 101-103 (C. A.

6), pending on petition for a writ of certiorari, No.

67, this Term. ; |

The cases from the Ninth Circuit relied on by pe-

titioner (United States v. Johnson, 429 F. 2d 430,

and Osborne v. United States, 371 F. 2d 913) do not

deal with Section 605 but with the argument, properly

rejected below, that there was insufficient evidence to

identify the caller or recipient.’

b. Petitioner Roselli contends (Pet. No. 1029, pp.

15-17) that the district court erred in deferring, un-

til after the trial, the hearing on his motion to sup-

press evidence on grounds of illegal electronic sur-

veillance; he also argues that there were various in-

firmities in the hearing on that issue, In rejecting |

this claim, the court of appeals relied on its prior

decision (set forth in pertinent part in Pet. No, 1029,

5la-54a) involving a separate conviction of petitioner

in which it rejected essentially the same claims (Pet.

No, 1029, p. 47a). In a recent case identical argu-

ments were rejected by the Ninth Circuit and this

Court denied certiorari, United States v. Sacco, 428

F. 2d 264, 272-274 (C. A. 9), certiorari denied, No-

vember 9, 1970 (No, 556, this Term).

e. Petitioner Teitelbaum’s claims of error (Pet.

No. 1020, pp. 25-43) regarding government cross-

examination of certain of his witnesses are amply

* Jacobs’ claim of prejudicial joinder (Pet. No. 1034, 10-

18) is fully answered by the court below (Pet. No. 1020, App.

25-31) and requires no discussion here.

7

answered below, It is further claimed that the jury

was improperly informed of the fact that two wit-

nesses subpoenaed by the government had claimed the

privilege against self-incrimination, As the court be-

low stressed, there is not the slightest evidence of a

prosecutorial attempt to build its case in this fashion

or of prosecutorial misconduct. The court below dis-

approved, as a general matter, questioning a witness

before the jury after he claims the privilege or advis-

ing the jury of a claim asserted outside its presence.

It found, however, no reversible error in the circum-

stances of this case (see Pet. No, 1020, App. 31-34).

This assessment of a particular factual context should

provide no occasion for plenary review.

It is therefore respectfully submitted that e's pe-

titions for writs of certiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

JANUARY 1971,

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