Petition for Writ of Certiorari — Thugut v. New Jersey

Lot VARY | Supreme Court, U.S,

SUPREME COURT, U.S. FILED

qT 197

E. ROBERT SEAVER, CLERK

IN THE

Supreme Court of the United States

Ocrosper Term, 1971

“ @1- 5243

JACK THUGUT,

Petttioner;

vs.

THE STATE OF NEW JERSEY,

Respondent.

——__——_-—

PETITION FOR WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Morris SprITZER,

Counsel for Jack Thugut, Petitioner,

75 Paterson Street,

New Brunswick, New Jersey, 08901.

Spritzer & Spritzer,

75 Paterson Street,

New Brunswick, New Jersey, 08901.

Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

TABLE OF CONTENTS

PAGE

Opinion BELOw 1

J URISDICTION 2

THE QUESTIONS PRESENTED 2

CoNSTITUTIOWAL PROVISIONS 3

STATEMENT OF THE CASE 3

CoNCLUSION 7

APPENDIX:

A—Opinion of the Superior Court of New Jer-

~~ sey, Appellate Division la

B—Order of New Jersey Supreme Court Deny-

ing Certification 8a

C—Judgment of New Jersey Superior Court,

Law Division, Middlesex County 10a

D—Affidavit of Morris Spritzer in Support of

Motion 12a

Cases Cited

Ashe v. Swenson, 90 S. Ct. 1189 (1970) 2

U. S. v. Spock, 416 F. 2d 165 (C. Ct. of A. First

SE Be ciinetinisinisssiimneinnncesann 2

United States Constitution Cited

Fifth Amendment 3

Sixth Amendment ................

Fourteenth Amendment ........... napecaieasaion

li TABLE OF CONTENTS

Statutes Cited

N.J.S. 2A 2112-3

N.J.S. 2A:121-3

28 U.S.C. See. 1257(3)

Rule Cited

Ruie 19-1(a)

PAGE

IN THE

Supreme Court of the United States

Octoser Term, 1971

No.

a

—_—

JACK THUGUT,

Petitioner,

vs.

THE STATE OF NEW JERSEY,

Respondent.

%

PETITION FOR WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the New Jersey Superior Court,

Middlesex County, Law Division, and the order of the

New Jersey Supreme Court denying certification.

Opinion Below

The Judgment of Conviction of the Petitioner in the

Law Division of the Superior Court of New Jersey, and

the Opinion of the Superior Court of New Jersey, Appel-

late Division, affirming said Judgment of Conviction.

sought to be reviewed, are set forth in the Appendix to

this Petition. Application for Certification to the New

Jersey Supreme Court was denied on July 7, 1971.

Jurisdiction

The jurisdiction of this Court to review this case by

Petition for Writ of Certiorari is based upon 28 U.S.C.,

Sect. 1257 (8) and Rule 19-1(a).

The Questions Presented

1. In the light of this Court’s decision in Ashe v. Swen-

son, 9 S. Ct. 1189 (1970) and Sealfon v. U. S., 68 S. Ct.

237, in which the doctrine of double jeopardy was ex-

tended to include coilateral estoppel, the use of the iden-

tical evidence used in the first triai for “bookmaking”

which resulted in an acquittal was barred in tie second

trial for “lottery”.

2. The Petitioner was denied a fair jury trial and due

process in the light of the decision by the First Circuit

Court of Appeals in U. S. v. Spock, 416 F. 2d 165 (1969)

by reason of the mandatory language used by the Trial

Court in its charge to the jury. Petitioner was further

denied a faiz jury trial and due process by the use of dif-

ferent language by the Trial Court in its charge with re-

spect to conviction on the one hand, and acquittal on the

other hand. See Appendix A page 3a infra.

Constitutional Provisions

Constitution: Amendment V.

To the extent here pertinent, the Fifth Amendment pro-

vides: “* ** nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb * * *”.

Constitution: Amendment VI.

To the extent here pertinent, the Sixth Amendment

provides: “In all criminal prosecutions the accused shall

enjoy the right to a speedy and public trial by an impar-

tial jury #9 0)

Constitution: Amendment XIV.

To the extent here pertinent, the Fourteenth Amend-

ment provides: “* * * nor shall any State deprive any per-

son of life, liberty or property without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

Statement of the Case

In reliance upon a Search Warrant a team of police

officers consisting of State ‘'roopers and members of the

Perth Amboy Police Department on August 13, 1968 en-

tered and conducted a search of premises located at 202

New Brunswick Avenue, Perth Amboy. The premises,

quoting from the Search Warrant, consisted of “the cor-

ner store of a 3 story red brick building, 2 plate glass

windows with the doorway between face on New Bruns-

wick Avenue, one plate glass window faces on New

Street”. The interior of the main store premises was

divided into a front section and a rear section by a

+

wall or partition in which was a doorway permitting

access between the two sections. Running across a

large part of the front section was a counter typical

of the sort used in the dry cleaning business. In the

rear section there was a desk and chair, a number of

racks of the sort used for hanging clothes, and various

pieces of mechanical equipment for cleaning and pressing

clothes. At the extreme rear of the rear section was a

door containing three separate locks leading to what was

described as a “closet” but which was in fact a stairway

to the basement at the top of which was a platform sev-

eral feet wide. The basement itself was for the common

use of all of the tenants of the building.

The only occupant of said store premises when tie po-

lice entered was the defendant. Thugut, who was seated

at the desk in the rear section talking on the telephone.

He was immediately, and before any search was conducted,

placed under arrest. The police remained in the store

premises for approximately two hours during which they

conducted a search.

Among the items confiscated by the police during the

search was a brown paper bag containing a variety of

pieces of paper alleged to be records of both horse-race

bets and lottery number bets, and a cigar box likewise

containing a variety of pieces of paper alleged to be rec-

ords of both horse-race bets and lottery number bets. In

many instances an individual sheet of paper contained

both alleged horse-race bets and elleged lottery number

bets.

As an aftermath of said search and seizure two sep-

arate indictments, one for bookmaking (N.J.S.A. 2A:112-

3) and the other for possession of lottery paraphernalia

(N.J.S.A. 2A:121-3) were presented by the grard jury

against Thugut. Trial of the bookmaking charge was

held first and resulted in an acquittal. At the trial of the

bookmaking case (N.J.S.A. 24:112-3) no direct evidence

whatsoever was presented by the State of the acceptance

of bets, and the State relied exclusively on the cireumstan-

tial effect of “possession” or in any event “constructive

possession” of the paper data above referred to. This

aspect was fortified by the State’s summation asserting

reliance upon “circumstantial evidence”, that is to say,

that “possession” permitted the inference of engaging in

bookmaking. The Court charged the effect of cireumstan-

tial evidence.

When, some months later, trial on the lottery charge

was moved, the defendant moved for dismissal on the

grounds of res judicata and collateral estoppel, among

other things, which motion was denied.

At the first trial for bookmaking the portion of the

contents of the same brown paper bag and of the contents

of the same cizar box which contained separate alley ed

entries of bookmaking were offered in evidence. In addi-

tion, with respect to the sheets of paper containing alleged

entries of both bookmaking and lottery, the lottery evi-

dence was covered up and the sheets of paper were then

photocopied, and the photocopies were then offered in evi-

dence.

In this second trial, which was upon the indictment

charging Thugut with possession of lottery parapher-

nalia, Thugut was convicted. The portion of the contents

of the same brown paper bag and of the contents of the

same cigar box whicii contained alleged entries of lottery

were offered in evidence by the State over the objection

of defense counsel.

6

Defense counsel argued that possession of the brown

paper bag and of the cigar box necessarily included all

of the contents and that the issue of possession of the

brown paper bag and the cigar box had been once adjudi-

eated by a jury adverse to the State in the first bookmak-

ing trial.

The constitutional issue of a fair trial was also raised

by reason of the Court’s charge to the jury in which the

Court, among other things said

“Your responsibility then is to consider and weigh

the evidence in this case and if you come to the

conclusion that the State has proved the charge

against the defendant beyond a reasonable doubt,

then you will convict him of the charge.

In other words, you will return a verdict of guilty.

On the other hand, if you come to the conclusion

with respect to the charge that, or any element of

the charge, that the State has failed to prove the

element cr the whole charge beyond a reasonable

doubt, then it is your responsibility to acquit him,

that is to say, to return a verdict of not guilty.”

Defense counsel argued two objections to this portion of

the charge: (1) The language “you will convict him of the

charge” was in effect a command and an impermissible in-

trusion into the exclusive province of a jury, and (2)

there was an invidious difference between the language

used with respect to conviction and acquittal when the

Court said “it is your responsibility to acquit him”. The

Court refused the request of defense counsel to use equal

language with respect to both conviction and acquittal

and in any event to avoid the use of “you will”. The de-

fendant was convicted and was sentenced to a term of

two to three years in the New Jersey State Prison where

he is now confined.

This appeal is from that conviction. In due course

an appeal was taken to the Superior Court of New Jersey

—Appellate Division in which the judgment of conviction

was affirmed. The opinion of Judge Matthews has been

set forth above. Thereafter application was made to the

New Jersey Supreme Court for certification, which was

denied.

CONCLUSION

For the foregoing reasons, the judgment of cunviction

of the Superior Court of New Jersey, Law Division, Mid-

dlesex County, and of the Superior Court of New Jersey,

Appellate Division, affirming said conviction, and the or-

der of the New Jersey Supreme Court denying certifica-

tion were erroneous and a writ of certiorari to review

the same should be granted.

Respectfully submitted,

Morzis Spritzer,

Counsel for Petitioner, Jack Thugut,

75 Paterson Street,

New Brunswick, New Jersey, 08901

Spritzer & SprRITzER,

75 Paterson Street,

New Brunswick, New Jersey 08901.

[AppenpDIcES FoLLtow]

APPENDIX A

Opinion of the Superior Court of New Jersey,

Appellate Division

Superior Court oF NEw JERSEY

ApPELLATE Division—A-1557-69

»

>

Strate or New JERSEY,

Plaintiff-Respondent,

Jack Heinz Tuvuevt,

Defendant-Appellant.

Li.

a

Argued February 2, 1971—Decided May 4, 1971.

Before Judges Lewis, MatrHews and MrnvTz.

On appeal from the Middlesex County Court.

Mr. Morris Spritzer argued the cause for appellant.

Mr. John H. Stockel, Special Deputy Attorney General,

argued the cause for respondent (Mr. Clinton E.

Cronin, Actirg Prosecutor of Middlesex County, at-

torney).

The opinion of the court was delivered by

Matruews, J.A.D.

[la J

2a

Appendix A

Defendant appeals from a judgment of conviction for

possession of lottery slips, contrary to N.J.S.A. 2A :121-3.

Originally, defendant was charged in three separate in-

dictments, ali of which arose out of a “single” raid. The

first indictment charged him with bookmaking, in violation

of N.J.S.A. 2A:112-3. He was tried to a jury for this in-

dictment and was acquitted on December 11, 1969. The

second indictment, charging defendant with the crime in-

volved on this appeal, was tried to a jury on February

23-25, 1970. That trial resulted in a guilty verdict. A

third indictment, involving the possession of pornographic

material, has not been moved for trial and is not involved

in this appeal.

Prior to the first trial on the bookmaking charge, de-

feadant brought a motion to suppress the evidence which

was seized from his dry cleaning establishment pursuant

to a search warrant. The issuance of that warrant was

attacked in a motion on the ground that it was issued on

facts insufficient to constitute probable cause. That at-

tack is renewed on this appeal. We find this argument

to be without merit.

The affidavit presented to the judge who issued the war-

rant stated that a “reliable informant” who had given

information which led to arrests and convictions for gam-

bling in the past had given information to the police that

“male negroes were delivering lottery numbers and money

to Jack Thugut at Thuguts Cleaners, 202 New Brunswick

Avenue, Perth Amboy, New Jersey, between the hours of

1:00 PM and 4:00 PM.” The affidavit then went on to re-

port the representations of surveillance by the police

which verified the fect that negro males were coming in

and out of Thuguts Cleaners within the time period in

3a

Appendin A

question and without having in their possession any cloth-

ing either on entry or exit.

While the affidavit fails to state how the informer re-

ceived his knowledge of Thugut’s activities, see Spinelli v.

United States, 393 U. S. 410 (1969), there is more than

sufficient information contained in the affidavit, based on

the officers’ surveillance, to have justified the issuance of

the warrant. In addition, Detective Peters testified that

he personally overheard someone say that he wished to

place a bet with Thugut.

Defendant next argues that the trial judge in effect

commanded the jury to return a guilty verdict against him

in the following portion of his charge:

Your responsibility then is to consider and weigh

the evidence in this case and if you come to the

conclusion that the State has proved the charge

against the defendant beyond a reasonable doubt,

then you will convict him of the charge.

In other words, you will return a verdict of guil-

ty. On the other hand, if you come to the conclu-

sion with respect to the charge that, or any element

of the charge, that the State has failed to prove

the element or the whole charge beyond a reason-

able doubt, then it is your responsibility to acquit

him, that is to say, to return a verdict of not guil-

ty.

We repeat defendant’s argument with respect to this por-

tion of the charge from his brief:

Intrusion into the exclusive province of the jury

cannot be sanctified by frequent trespasses which

ta

Apnendia A

may have escaped appellate scrutiny for one rea-

son or another. Juries should not be told under

any circumstances that they “will” convict. It is

an unmistakable command from the Bench which,

regardless of anything else in the charge, they are

. most apt to obey. Such a command taints the

‘charge beyond redemption.

Defendant’s argument deals with the often-discussed but

non-existent privilege of a jury to return a verdict of

not guilty even though the evidence establishes guilt of

an individual beyond a reasonable doubt. The question

of the existence or non-existence of this so-called priv-

ilege was argued vigorously in academic circles during the

trial of Dr. Spock. United States v. Spock, 146 F. 2d 165

(1 Cir. 1969).

Without attempting to get involved in natural, super-

natural, moral, or super-moral law concepts, it seems to

us that the role of the jury claimed by defendant here

is not the current theory in this State or any of the

United States. Prapmatically, we suppose, if a jury dis-

agrees on “moral” grounds with the law as stated by the

judge, or as it has been enacted by the Legislature, jurors

will return verdicts of “not guilty” regardless of a judge’s

instructions. Whether this is to be regarded as a “right”

of the jurors concerned under such circumstances, we

leave to the theologians and philosophers. It is wrong.

Defendant cites to us in support of his view, State v.

Connelly, 5 N. J. Misc. 393, 1386 A. 603 (Sup. Ct. 1927).

There, the following charge was objected to:

If you are satisfied, gentlemen of the jury, that

the state’s witnesses are telling the truth, then the

oa

Appendia A

defendant is guilty. Of course, you have to give

the alibi some consideration. Alibi is a word meaa-

ing “elsewhere.” Now, if the defendant was else-

where and you believe his witnesses there is noth-

ing for you to do but return a verdict of not guil-

ty. But if you believe the witnesses of the state,

if you believe the officers and want to give consid-

eration to his statement and the circumstances un-

der which it was obtained and you are satisfied be-

yond a reasonable doubt that the state’s witnesses

have told the truth, there is nothing for you to do

but return a verdict of guilty.

We are not informed by the ecurt what the “apparent”

errors of this charge were. It seems rather chvious, how-

ever, that the statement, “[o]f course, you have to give

the alibi some consideration” was a clear invasion into

the province of the jury by the judge. Connelly certainly

does not stand for the principles advanced here by de-

fendant.

We do not find that the instruction complained of

amounted to a directed verdict of guilt. The charge con-

sidered in its entirety informed the jury in reasonably

clear terms as to their duties as triers of the facts.

Defendant also a.gues that his prosecution for posses-

sion ot lottery slips should have been barred by princi-

ples of collateral estoppel in view of his prior acquittal

on the bookmaking charge. See Ashe v. Swenson, 397

U. S. 436, 25 L. Ed. 2d 469 (1970). We find no merit to

this argument. Defendant was first acquitted of the

crime of bookmaking—an activity distinct from the crime

of possession of lottery slips. One need not possess lot-

62

Appendix A

tery slips in order to be guilty of bookmaking. One need

not make book in order to be guilty of possession of lot-

tery slips. It is irrelevant that both activities invelve

gambling, since the Legislature has made sects committed

in the pursuit of each of these forms of gambling sepa-

rate crimes.

Finally, defendant contends that the trial judge erred

in denying his request for further clarification of that

portion of his instructions to the jury which dealt with

the “lack of evidence” rule.

Defendant notes first that the trisl judge made brief

mention of the fact that reascnable doubt may he gener-

ated by the State’s failure to produce sufficient evidence.

In another portion of the charge, defendant notes, the

trial judge discussed circumstantial evidence at great

length, stating at one point, that circumstantial evidence

may often be stronger than direct evidence. At the con-

clusion of the charge, defendant asked the judge to ex-

plain to the jury that reasonable doubt may arise from a

lack of circumstantial evidence as well as through gaps

in direct evidence. Defendant believed it was crucial that

the jury be so instructed because of the importance of

circumstantial evidence in the case.

Frankly, we view defendant’s argument under this point

as an exercise in semantics. A supplemental charge as

requested by defendant might have been of some solace

to a logician, but we have grave doubt as to whether it

would have aided the jury in any manner whatsoever. In

any event, we find no error. We believe that a fair read-

ing of the judge’s charge made it crystal clear that rea-

sonable doubt might arise in the minds of the jurors from

7a

Appendiz A

a lack of evidence whether direct or circumstantial. We

believe that the requested supplemental charge would

have served only to confuse.

The judgment of conviction is affirmed.

8a

APPENDIX B

Order of New Jersey Supreme Court Denying Certification

Supreme Court or New Jersey

C-536 Serremper Term 1970

Ow Petrrion ror CERTIFICATION

——

State or New Jersey,

Plaintiff-Respondent,

vs.

Jack Herxz Tuvevrt,

Defendant-Petitioner.

To Appellate Divison, Superior Court:

A petition for certification having been submitted to this

Court, and the Court having considered the same,

It is hereupon Ordered that the petition for certification

is denied, with costs.

Wirxess the Honorable Joseph Weintraub, Chief Jus-

tice, at Trenton on the 7th day of July, 1971.

Appendiz B

Filed:

July 7, 1971

Joun H. Grpea

Clerk

Irvine B. Zachyer

Acting Clerk of the Supreme Court

10a

APPENDIX C

Judgment of New Jersey Superior Court, Law Division,

Middlesex County

(Filed—May 4, 1970.)

At a Session of the County Court, holden at New

Brunswick in and for the County of Middlesex, of the

term of September 1969—May 1970 Session.

How. Cuartes M. Morris, Jr.,

Judge, County Court

vs.

Jack Herxz Tavucut

Sur. 1.359-68 for Possession of Lottery

Dated May 4, 1970

~

On motion of the County Prosecutor, the Court orders

the Sheriff to set the Prisoner to the Bar to receive his

sentence; he being accordingly set to the Bar, the Court

doth thereupon order and adjudge that the Prisoner Jack

Heinz Thugut having been convicted of the crime of

possession of lottery-be imprisoned in the State Prison of

this State, for a minimum term of two (2) years, and for

a@ maximum term of three (3) years, at hard labor upon

this conviction. The defendant is to receive credit for the

time incarcerated for one day. Defendant is hereby fined

the amount of $1000.00.

lla

Appendiz C

State or NEw JERSEY,

County oF MivpLesex,

I, Frank Scuatzman, Clerk of the County Court in and

for the County of Middlesex, aforesaid, do hereby certify

that the foregoing is a true copy from the records of said

Court, of the sentence of Jack Heinz Thugut above named.

In Testimony Wuereor, I have hereunto set my hand

and Seal of said Court, at New Brunswick, in said Coun-

ty, the 4th day of May in the year of our Lord one thous-

and nine hundred and seventy.

Frank ScHaTzMaNn

Clerk.

[Sear]

12a

APPENDIX D

Affidavit of Morris Spritzer in Support of Motion

State oF New JERSEY,

County oF MIpDLESEx,

Morris Spritzer, being duly sworn, says:

1. I am a member of the firm of Spritzer & Spritzer,

with offices at 75 Paterson Street, New Brunswick, New

Jersey, and the person in charge of the above entitled

case.

2. The Statement of the Case is hereby incorporated

herein.

3. The Trial Court’s charge to the jury in this ease was,

in fact, substantially similar to the Trial Court’s charge

in U. S. v. Spock, 416 F. 2d 165 (C. Ct. of A., First Cir-

cuit 1969) and was in fact a command to convict if the

jury made certain fact conclusions. Apparently the U. S.

Attorney General determined not to appeal Spock and as

a result, the basic constitutional issue as to the extent a

trial judge can intrude upon the function of a jury under

the particular circumstances involved here, has not yet

reached the U. S. Supreme Court. A decision on this

critical and important issue is needed to establish guide

lines to correct trial procedure in our State Courts, for

the reason that State Courts may not deem a decision by

a U. S. Cireuit Court of Appeals to be mandatory.

4. It is quite apparent from the decision of Judge Mat-

thews in the Appellate Division of the Superior Court of

13a

Appendiz D

New Jersey that the Appellate Division misconceived the

principle of collateral estoppel. The inescapable infer-

ence to be drawn from the Appellate Division opinion is

that collateral estoppel does not obtain where the crimes

are different, even though the evidence in both eases is the

same. The practical effect of this misconception is to

nullify the doctrine of collateral estoppel. If the crime

was the same in the second trial as in the first trial the

traditional doctrine of double jeopardy would always

apply, and the basic philosophy for extending the doctrine

of double jeopardy by adding the doctrine of collateral

estoppel is for the very purpose of treating a different

crime based essentially upon the same evidence, which

evidence was once heard by a jury and rejected.

Morris SprirzEr

Morris Spritzer

Sworn and subscribed to

before me this 4th day of

October 1971.

Eva M. Martix

Eva M. Martin

Notary Public of New Jersey

My Commission expires Jan. 30, 1974