Petition for Writ of Certiorari — Cerone v. United States

Supreme Court brief1972

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Text

Bo In the

in| Supreme Court ofthe Mited States

‘Creme Tan, 1971.

DONALD J. ANGELINI, . ot | -: :

Petitioner, - =

: : F

UNITED STATES OF AMERICA,

Saag REC A “Respondent

‘PETITION FOR WRIT OF CERTIORARI TO THE ~~

UNITED STATES COURT OF APPEALS.FOR ©

|. THE SEVENTH CIRCUIT

ANNA R. LAVIN - . §

_ EDWARD J. CALIHAN, JR. =) de

53 West Jackson Boulevard . : c

- Chieago, Illinois 60604 _ eS ee

_- Attorneys for-Petitioner- ft

. . a . im . " 7 . a

UNITED STATES LAW PRINTING (0., CHICAGO, ILLINOIS 60618 (312) 525-6581

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ese | PAGE

7 Quinlan: of the Court Below : oe eae _ | ‘ fg 2\ a

| Jurisdiction ne nnjeeeenn ee | Wee Ranke as

: Questions ‘Pucasaiad for Review as - 7 at ae

- Cabell Provisions, Siatutes and Rules In-

er seeeeseceeenennneeeneemenees sveetntneneneneonentinteneseees 4

‘Statement of the Case pees | aw : = eat die 5 .

Statement, of Facts” pee | : er ue "5, : ;

"Reasons for Granting the Writ Scicsesabiie | setae! caicaiatee oe

Ceiibiiten bebee aires! as eae f ; = = 29

Betitioner’s sede ees 6 F oe

| Ae Opinion of thie Court Below: pen es : ke oe

| B. Order ‘Affirming: Ls eae 32

-C. Order Denying Petition for Rehearing : il JApp. cS

—-D. Clerk’ s Certificate I Rete oa | ag," 34

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TABLE OF ‘AU THORITIES |

ou ae potas Tee vs _ Cases Cited. eer

rae A PAGE

Pm Ae: v. United States, 402 US. I hs cnctinlacerbcceick 28 %s .

/ ‘Angelini v. ‘Alinois Bell Telephone Co., 418 F. 2d 111 .. 8 :

Boyd v. United States, 116-U.S. 616 Qn

-- Bruton v. United States, 391 U.8.123 00, 27

California v. Green, 399 US. 149 eee Penet 28

Cole Vv. State of Arkansas, 333, U. S. 196 (ae slack |

| Cummings v. The State of Missouri, 7 1 U. , 277, 32

_.. De Jonge v. State of Oregon, 299:U.S. 353, eae Sa

. Douglas v. Alabama, 380 U.S: 415 . Ske hnt Pitas ale 27

Dunlap v. United States, 165 U.S. ee ae

Dutton v, Evans, 400.U.8. 74, . eseegaaaan 27

Erie Railroad Co. v. Tompkins, 304 US. eR 10, 26

Bx Parte Jackson; 96 U.S. 120° erreseneennennnn 20

‘Fleming v. Nestor, 363 U.S. 603... ig

‘Guimats Trust Company of New York v. York, 326

WB 99 nn ennretgnnnnt dO, 2

| elveting v. Mitchell, 303 Us. i, DT. Ee

| Hill v. Philpott, 445 F.2d 144/(now pending before this

‘Court on grant of certiorari as 71-442, 40 L.W. 3134 9, 21

-“Tuiland Steel Co. v. NLRB, 7 Cir, 170 F.2d 247, 267. 17

* Kelly v. Tilinois Bell Telephone Co., affirmed 210 |

Supp. 456, 463, affirmed 325 F.2d 148 ........2........-.-.--- 8,13 .

Lanzetto re of New Jersey, 306 U.S. 451, 453, —

Tees 7. United States, 150 U.S: 476 eepenneenn 14

. .

. ae §

_* United States v. Dobbs, 448 F.2d 1262 bee 16.99

iii - ;

PAGE

1 ‘aia v. : United States, 9Cir., 386 F.2d 132, 139 .. 20.

McBoyle v. Unitéd States, 283 U.S. 25, S aes

Minor v. Minor; 39 DL. W. 2263> ccacpneissoseoee 16

‘Mosley v. Police Panes of . Chicago, et al, 432°

Pei 106 a ae.

“NAACP. v. Button, 371 U.S. 415- nee £ $12

Oliver Vv. United States, 8 Cin, 239 F.2d 818, 822-3... 20

People v. Galan, 110 Til. App. 2d 98, 249 N.E.2d 118, 119 24

People v. Jackson, 178 Iil.App. 35, 156 N.E. 303, 304°... 26

Pierce v. United States, 314. U.S. 306, 311 se :

Roberts v. Russell, 392 U.S. 298 =n —

Russell v. ‘United States, 369 v. S. 749 Lilies ee |:

Schmerber v. California, 384° U.S. 757 tsnncnnnnnen, a

Screws v. United States, 321 0S. 01,108 2

‘Simmons v.. United States, 390 UA 0 ee.

” State ve Clark, 39 LW 2576 csccnecencttycnnmernee 9418

~ Stockham v. Stockham, 168 So.2d 320 . ane Pe Bowen! | ae

_ Trop v. Dulles, 356 U.S. 86, 6 sc crmspsatsmaipiackad seubeinanvlicosuse 14

- “United States v. Arnold, 4 Cir., 380 F.2d 366, 367... 24.

United States v. Blank, N. Ohio, 330 FS. ‘ind nnpecntnee 9, a1

United | States Vv. Comymo, 248 US. 349. ROP Uae iat bal nas 23

- United States v. Critchley, 3 Cir., 353 F.2d 358 ..... 25

; United States v. Detroit Vital Foods, Tne., ocir, 407 |

F.2d 570), 575-6 nein hiftecg oe So

United States v. Griffin, 434 F. 2d 978, cert. — aa now 2g i

United States v. Kordel, 397 US.1 Zao one ‘9, 18°

; - United States v: La Franca, 282 U. S. 568 . evs eon: 8, 4 My

United States v. Shavin, 7.Cir., 287 F.2d 647, 650 26 |

United ‘States v. Tomasetta, 429 F.2d' 978 ............: 9, 25

United States v. Van Leeuwen, 297 U.S. 249 mm eae 9-18

Winters v. Umied States, 333 ETP S. 507, 515- 1 13

" Other Authotities oats Heo

F ‘nit Amendment to ide United States Constitution . -3, 10, .

eS 3 eee ie 11,12 .

~ Fourth pone en to. the United. States: Constitu- °

PTR a Bn ie ial se nconchnetaleimnad aealaiaamnnenas fat Aa 19, 21.

| Fifth Amendment to the United States Constitetion .. 9, 16,

; WV, 21

‘Sixth Amendment = the United tates: Constitution . 22

Tenth Amendment to the United States Constitution... 10. .

Title 18, USC. §1084(d) ccsnecsnenecaneeeee8 10, 18,17 -

dee, wee

| ile WO IONE co

| Title 18,U.S.C; §1952. ......... Se ee ee

| BRGP, Role 7... tae tues aes h 16

AO: Wide WA) pe a I

Chapter 38; $28-1(a) Ill. Rev. ‘Stats. OT ENIRM Tae oe

| US. Code Congressional and Administrative News, —

1961, P. 2631 n--eevenceceedtenerntenieee en ee

PAGE nt

Sen,

’

ee Bw the |

| Supreme Court at the ted States

vane | Octoses hea: 1971

Bho

No.

| DONALD 'J. ANGELINI, __. 3

ee ees Petitioner,

vs, |

‘UNITED STATES OF AMERICA, te

: ~ Respondent. |

: rele

PETITION ‘FOR WRIT OF CERTIORART TO THE :

UNITED STATES COURT OF. APPEALS FOR |

THE SEVENTH ental

To: The Honorable, The Chief Judties ae ‘Associate I

Justices of. the Supreme Court of the United States.} oo

- The Petitioner, Donald J. Angelini, prays that a writ of!

: certiorari issue to review ‘the judgment of the ‘United .

~ States Court of Appeals for the Seventh /Cireuit affirming: -

i judgment of conviction entered by the United” States

"District Court for the Northern District of Illinois, Kastern

| Divisio. ene: | : eae | |

} ; ee ! : fe

, OPINION OF THE cOURT BELOW

. The Opinion of the United States Court of heeeie for

the Seventh Cireuit in United States of America v. John

Philip Cerone, Sr., et al., Nos. 18551, 18555, 18622, and

_ 18635,-was entered on September 15, 1971, but is not yet

officially reported. It is printed in the Appendix to this:

Petition. (App. 1)’

‘

JURISDICTION |

The judgment of the Court of pe GEN affirming the con-

* viction in,the District Court was entered on September 15,

1971. (App. 32) A timely Petition for Rehearing. was

denied on November 9, 197]. (App. 33) _ @

The ‘jurisdiction of This Court is invoked under 28 U:S.C.

Section 1254(1). ,

QUESTIONS PRESENTED FOR REVIEW

1. Is not Title 18, U.S.C. $1952, as being employed

here, an2over-broad. regulation of First Amendment rights

"and an ex post facto law in violation of Article 1, Section

9, Claise 3 and Section 10, Clause 1 of the Constitution?

2.* When the Government, pursuant to the provisions of . ©

18 U.S.C. $1084(d) directed the discontinuance of peti-

tioner’s phone servi ice -by the local facility, .on grounds

which are the essence of:the cause -at bar and cover the

same time period, d@es not his later prosecution consti-

tute double jeopardy in violation of the Fifth Amend-

ment to the Constitution ofthe United States?”

3. When the Government, in the course of the phone

_service discontinuance case, called the petitioner (plaintiff

therein) as an adverse witness, did not the use of his testi-

8 RGD, * ncccccoceseseeee ” denotes Appendix to this Petition.

mony in the criminal trial violate his siete aguinst ’

self-incrimination ?

4. Do the Fourth and Fifth Amendments allow use as

evidence, ov er objections and motions to suppress, un-

opened mail seized in March and April, 1968, retained,

‘sealed by -Federal Agents until shortly before trial in

April, 1970, and then opened, without warrant or reason

to believe the contents were fruits ar instrumentalities

of crue?

5. Does a charge seenaiil under 18 U.S.C.- $1952 satis-

fy the ‘Sixth.Amendment and Rule 7 of the Federal Rules —

of Criminal Procedure where it merely alleges that Peti-

tioner, on or about September 25, 1967, at Chicago, Llinois,

did use and cause téle used the United States Mail in con- -

travention of ¢gited Illinois Statutes?

6. Is it not-cléar that the, Sixth -Afnendment and Rule

7 have been violated, where the proof introduced to sus-

tain the charge is that on September 29, 1967, one Harry’

Levine of Detroit, Michigan’ forwarded a clieck of $350.00

‘to Petitioner at Chicago, Hlinois, for which he received

A & K sports. schedules of foothall games for the. en-

suing season, plus news events of various sports?

7. Is not Title 18, U.S.C. $1952 as belhx employed here,

violative -of the Tenth -Amendment when, it expands the -

Stafe Statute of Limitations, where Illinois: Courts have

‘defined its Statutes of Limitations as.an amnesty? ~

* 8. Does the exception to the hearsay tule within the

elastic conspiracy doctrine as heretofore applied in fed- - -

eral trials violate the Sixth Amendment’ s confrontation |

clause in the light of recent rulings ‘by this Court on the

. constitutional right of confrontation and cross-examina-

tion?

lh dai

eerererer ony Grae Were p PON EH OF

ee ae

CONSTITUTIONAL AND STATUTORY | ‘PROVISIONS |

: INVOLVED

The Constitutional Provisions mwsleal are:

Article 1, ‘Section 8

“The Congress shall have power * * *, to consti-

tute Tribunals inferior to the supreme: Court;

| Article 1, Section 9. : he

No. Bill of Attainder or ex post facto Law shall be

passed. i

. AMENDMEN = &

Congress shall make no law * * * abridging the

freedom of speech.

AMENDMENT IV.

The right of the people to be secure in their persons,

houses, papers, _ and effects, against unreasonable

searches and. seizures, shall not be. violated, and no

Warrants shall issue, but upon probable cause, sup- -

ported by Oath * * *

AMENDMENT ¥.

* * * nor shall any person be subject forthe same

offence to be twice put in jeopardy of Jife or limb;

nor shall be compelled in any crimimal case to be a

witness against himself, nor be deprived of life, liberty

or property, without due process. of law; a=:

AMENDMENT VI. (1791)

In all criminal prosecutions, the accused: shall enjoy

the right * * * to be-informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; * * * ; ay,

AMENDMENT X.

* The powers not delegated to the United’ States by

‘the Constitution, nor prohibited by it to the States, are

- reserved to the States respectively, or to the People.

STATEMENT OF THE CASE

The petitioner, Donald Angelini, and five others, in-

eluding Frank Aureli were indicted and charged with vio-

lation: of 18 U.S. Code, Section 1952 in that they conspired:

with each other from June, 1965, to about February 6,.

1968, and with certain other wnindicted co-conspirators to

use interstate facilities to facilitate, permit, manage, es-

tablish and carry: on an unlawful activity, a. gambling

enterprise, in violation of the laws of the State of Illinois.

(Ill. Rev.Stat., Chap. 38, Sees. 28-1 (a)(1)(2)(5)(10))

In Count EH, Aureli was indicted alome but severed from

the trial during its course because of emergency surgery.

In Count III, this petitioner was charged with a substan-,

tive violation of Title 18, U.S.C. $1952 on the ground that

he usetl the mails to violate Illinois gambling law, - s

that this act occurred on September 25, 1967.

The trial commenced on ‘April 29, 1967, and on May

8, 1970, the jury found your petitioner guiltysas charged.

He was sentenced to five years in the’ custody of the a

torney General and fined $10, 000.00.

STATEMENT OF FACTS

What Aureli told Bombacino

Most all of the evidence supportiv e of the gov ernment’ Ss

ease is set out in the Court of, Appeals opinion, appended

hereto as Appendix “A, at pages 1 to 11.

In summation, the gover ‘ment show ed through testimony

- of witness Louis Bombacino that, commencing in 1965 he

vhad coftacted defendaht- Frank hall and then gone, to

work for Aureli in the taking of gambling bets over the

telephone-at various addresses in Cook County, Illinois. At

various times in 1965 and 1966, Aureli told Bombacino

rg moor ate

i he a i ta BRON BIE Bes wer

aa © F

BE te Fora

that they would. be moving their location and particularly,

in October, 1965, Aureli told Bombacino that. he would be

working for defendants Angelini. and Cortina.

s ' ?

ci THE A & K LINE.

This is most non-controversially defined in Angelini v.

Illinois Bell. Teléphone Co., 7 Cir., 418 F.2d 111, a civil

‘action under Title 18, U.S,C., §1084(d). —The-evidence in” Sd oe

that case was” substantially duplicated on this trial.*

“For many years, plaintiff . "Angelini operated a

business known as “Angel and Kaplan Sports News

- Service’ with headquarters on North Clark Street in

' Chicago. A- preliminary activity was to prepare and

sell to a group of subscribers, a list or schedule of

‘coming sports events. Each sports schedule has printed

boxes left blatik allowing for the insertion of other

information. .

‘*The practice followed was that shortly before any

of the events took place, the subscriber”. would tele-

phone Mr. Angelini in Chicago. If a caller properly

identified himself such as by using’ a code name. or

_* number, either plaintiff or one of his employees would

permit the caller to listen to a récotded message which |

had been prepared either by plaintiff or under his di- - .

_rection.’’ 418 F.2d at 113. ;

The recorded messages were the re & K Line. - The

petitioner was awecognized expert in prognosticating point-

' spreads, possible odds and outcomes of sporting events,

: ineluding football, baseball, hockey, boxing, and even elec-

tions. He has been familiarly referted to as the “Wizard

of Odds,’’ the product of colorful news reporting. ,

While this is concisely put for the purpose of this state-

ment, most of the Government’s physical evidence was ob-

2 2 There were thousands of subscribers to the schedules, and about

30 ‘to the “service”.

—

taining in a seizure by warrant of his office, and (but for

~ Bombacino) his ‘‘admissions’’ on the 1084(d) trial regar d-

the conduct of his business. ‘

ee a nearby ne newsstand, or directly from petitioner’ S

BOMBACINO'S DIRECT EVIDENCE RE PETITIONER aoe

Bombacino would. pick ap the AKK ‘schedules each day ove

office.. ;

Seutinine also testified that .on July 2, 1965 he went

‘to Dominic’s Pool Room in the 4300 Block on . Madison

Street. Either at the apartment or on the way to that

address, Frank Aureli told Bombacino ‘that Angelo Kokas '

had a beef that he was pocketing some bets and that they

were going over to the poolroom. When he arrived there,"

there were present Donald Angelini, Angelo Kokas, J ohnny *

Manze lla and Joe Pep (Giancania). There, Donald Ange-

lini told Angelo Kokas that from heré on any books for

fifty dollars or more he has to ‘eall them in to Frank Aureli,

and Angelo Kokas said, ‘Okay, Don, if that is the way you

want it.’”’ Angelini said, ‘‘I know it’s hard for you to go

" back and forth to the phone. out vf the track. -

- COUNT III

The evidence on this Count was the mailing of a $350 —

check by one Harry Levine from Detasit on September 29,

‘1967 to petitioner.

He testified that the cheek was for ‘echiedules and other

“news items. The Court of Appeals decided. that the jury

could have made the mathematical inference that the pay-

* | .

ment was } for getting the ‘‘line.’’

REASONS FOR GRANTING THE WRIT ‘

I. The right to espouse ‘and publish personal opinion:

is‘ the heart of the First Amendment. The Seventh Cir- .’

cuit decision in Angelini’ v:Illinois Bell. Telephone Co.

418 F.2d 111, forbidding his publication of predictions

and probable odds oily if the transmission is ‘trapid’’ {ap- -

parentJy at some undisclosed proximity to the upcoming

' sporting event) is violative of this Court’s decision in

N.A.A.C.P. v. Button, 371 U.S. 415, and many others. that

regulations inv olving First Amendment rights be narrowly

specified. Further, the speed standard, announced ih 1969,

"was applied etiminally for acts.and transactions beginning

late J une,. 1965, and concluding in August, 1967, and as such- *

is an ex post facto law in violation of Article 1, Section 9,.

Clause 3-and Section 10, Clause 1 of the Constitution. These .

multiple transgressions upon Constitutional protections

- and guarantees require the intervention of this Court.

II. The law is settled that Title 18, USC, -§1084(d)

' imposes penalties and is quasi- criminal in nature. Kelly v.

Illinois Bell Telephone Co., affirmed 210 F.Supp. 456, 463, °

+ affirmed 325 F.2d 148..The decision ‘of the Seventh Circuit

that the execution of Yhase penalties and the imposition

of penalties in the later criminal action—based on the

samie evidence-—does not violate the prohibition against

double jeopardy is in conflict with this Court’s decision

-° in United States v. La Franca, 282 U.S. 568,-and misin-

terprets its decision in H elvering v. Mitchell, 303 U.S. 391,

"399.

Ili. The holding of the Seventh Cirenit that a person -

testifying in a quasi- -criminal penalty proceeding to es-

; e } fg ATE etal ae

tablish his rights. or to &oid the penalty, constitutes a

waiver Ogg liis privileg® against self-incrimination as to a

. later criminal prosecution is contrary to this Court’s de-

cisions in Simmons -v. United States, 390 US. 377 and. //.

United States v. Kordel, 397 U.S. 1, and is in direct con-- a].

flict with a. decision of the New Jersey Supreme Court | ee

State v. Clark, 39 LW 2576. - in

IV. This ease presents an 1 unusual question’ wifich has im *

not been but should be decided by this Court. Personal? ,

unopened mail has-been seized by Government forces, and »

maintained by them over a period ‘of two years, then to

be opened at their leisure and used at their pleasure, with-

out, until: their ‘belated opening, suggesting any evidentiary _

value, and presenting no reason to. believe they contained

fruits or instrumentalities of crime. The approval of the

Seventh. Cireuit—apparently allowing the procedure be-

cause possession was*obtained through an earlier. valid ;

. search—is inconsistent with this Court’s decision in United

’

= States v. Van Leeuwen, 297 U.S. 249, and i ignores the Fifth «.

‘Amendment privilege 6f thé petitioner in his’ private pa-..,

pers, recognized in Hill v. Philpott, 445 F.2d 144 (now

. pending before this Court on grant of certiorari as 71-

442, 40 L.W. 3134), and eins States ¥. Blank, N. Ohio, Te

330 FS. 7838. °° “* | | a “MS

V. The: charge. here was an invitation to the Govern-

ment to ‘‘roam at large’’ to prove its charge in eontra-

- . vention of this Court’s decision in Russell v. United States, ° e

". 369 U.S. 749 and Cole v: State of. Arkansas, 333 U.S. 196,

and directly conflicts with the decision of the First Cireuit

s in United States v. Tomasetta, 429 F.2d 978.

_ VL Where ‘the proof before the ‘grand jury, if any, is

documentary, and demonstrates the poles: ‘of activity—De-

troit and Chieago—and those poles are not charged and \:

10"

“the dat proved conflicts with the charge made, the aecep-

tance of the prosecution of the invitation to roam at large ,

to support its enveloping accusation is demonstrable

_ proof of the inadequacy of the charge. The sanctioning

‘of the indietment by the Seventh Cireuit on the basis that a .

- Bill of Particulars will suffice diverts the responsibility*of

the Grand Jury to the prosecutor in violation of the doves

Amendment.

VII. Title 18, U:S.C., §1952 lias a Congressional pur-

| pose of aiding the States in the enforcement of their laws.

Where the State of Lllinois has characterized its criminal

statutes.of limitations as an amnesty, and thus clearly sub-

stantive, éxpanding the statute is not in accord with this

-Court’s decision in Erie Railroad Co. v. Tompkins, 304 U.S.

64 and Guaranty Trust Company of New York v. York,

326 U.S. 99, and violates the reservation of powers clause

of the Tenth Amendment. * ar

VIII. . TRe Court of Appeals hes misapplied this Court’s

deeision in, sustaining. the admission’ of the Government -

-dgent—informer’ s révital of the co-defendant’s statements |

—in reliance on Dutton v. Evans, 400 U.S. 74. This decision,

further, conflicts with the decision of the Fifth Cireuit : ‘in

United States v. Dobbs, a F.2d 1262. |

- ie

In April, 1958, this petitioner inaugurated a civil action

‘ under the provisions of 18 U.S.C., §1084(d) to- forestall

the termination of his phone seryice. The Sev enth Circuit

ruled against him onthe basis that the use of the anes |

to publish his ‘‘line’’ violated Tilinois law..

In the face of a First Amendment plea, that ¢ ran held: ,

‘‘7]]_Rev.Stats. Ch. 38, § 28- 1(a) (10). provides that

it is unlawful -to cieuanil by telephone ‘information

" " as to wagers, hetting odds, or changes in betting odds.’

Seg

In order to_av oud applying this statute to informa-

“tion protected by thé. First Amendment, it has been ,

* limited by court decisions to the ‘rapid’ transmission ;

of either ‘actual. wagers, betting odds. or changes. iti

_ betting odds to or by persons engaged directly orfin-

. directly’ in gambling operations, a construction which

"; preserves the freedom of speech but .does:not Minder

the legislative purpose of suppr essing gambling. vi (418

F.2d at 113- 4) *. .

That decision was published in Nov ember, 1969, as noted

hereinbefore. The bulk of the evidence introduced in ad

case Was a repetition of that used in that case.

“o

‘Again raising the First Amendment plea, in this. case,”

this petitioner also contends ‘that the ‘“speed’? concept

as announced in 1969, adniittedly applied to this ease in- ,

' volving activities terminating in mid-1967 violates the ex

..post facto proscription. Of this contention, the Seventh.

| Cireuit held:

**Angelini’s ‘tea attack on the consitighonnliiy’ of ©

_seetion 1952 is the assertion that it. constitutes an ex

post facto law violative of article one, section nine,

-clause three of the Constitutiom.. The theory of this

. argument is, that section 1952 on its face proscribes

the use of interstate facilities in any form in further-

- ance of gambling, thereby rendering it. violative-of the |

‘first amendment by Angelini’s lights; that the; statute

was not narrowed to constitutionally per missible scope

= until Angelini v. IWinois Bell Tel. Co., 418° F.2d 111- is

‘(7th Cir. 1969), Yert. denied, 397 U. S. 1040: (1970),

limited: its application to rayfid transmission of gam-.

bling information; and that sich limitation did not oc-

eur until after. the conduct which gave rise~to tliis.

prosecution had occurred. . Taking ‘Angelini’s argu-

‘ment at face value, we ‘do not find the limiting construc. ~

tion of. section 1952: to be an unreasonable inter preta- .

‘tion of the statute w shicH, if such were the case, might.

- ” provide. an ‘arguable basis for his ex post facto law .

sanertion. Williams v. ‘United States, 179 “Fea 644,

- 647 (5th Cir. 1950). 18 US.C. § 1952 does not ‘consti-

tute an ex post facto law as applied here. > (App. 21)

We submit the Court erred in. its applicatic on of a not

‘‘ynreasonable interpretation in applyintg criminal law. It is °

not whether the construction is ‘not .... an urireasonable

interpretation, it is whether there is anivaiele specificity.

in determining exceptions to First Amendment rights.

‘¢<«These freedoms are deliéate and vulnerable, as well

as supremely precious in our society. The thréat of

sanctions may’deter their exercise almost as potently

as the. actual application of ‘sanctions. [cases, cited]

Because First Amendment freedoms need breathing

_. Space to survive, government may regulate in this area

omy with narrow specificity. Cantwell -v. Connecticut, — .

310. U.S. 296, (81l’ g N.AACP. v. Button,. 371 US. z

415, 432- 433. Ve

Any ‘restriétion, condition, or reservation which activates

—

protected right must bé clearly expressed. Mosley v. Policé

_ Department of Chicago, et ab, 432 F.2d 1256, +.

- - The ‘not unreasonable ~ {nterpretation’” test may be

available for consideration in civil laws, but not-in erim- .

‘inal. This Court has so.stated in more cases than space

will. allow detailing, but we Shall refer to a few. “No one .«

shall be required ‘at peril of life, liberty. or property ‘to

_ speculate as to the, meaning of penal ‘statutes.. All are

entitled to be informed us to what the state commands: ‘or.

.forbids.”’ Lanzetto y. State of New Jersey, 306 USS. 451,

- a", nti is reasonable that a fair warning should be |

-given-in n language the- common world will understand, ‘of.

‘what_the law intends to do if-a certain. line is passed. To.

make the warning fair, so far as possible the line should 7

‘be clear. *? McBoyle v. United States, 283 US. 25 ee ‘The

sad .

the operation of a criminal exception to a constitutionally .

standat ds. of eértainty in statutes punishing for o enses

is higher than in those depending primarily upon civil -

sahetion for -enforcement. The crime ‘must be ‘dpfined.

with- appropriate definiteness’, Cantwell v, Conne ticut ;

_Pierce v. United States. * * * The vagueness’ may

States, 333 U.S. 507, 515.

It is,well established that & «judicial enlar ‘cement of )

“a criminal act-by interpr etation is at war witha funda-

mental’ concept. that crimes must be defined with appro- |

. priate definiteness.”? Pierce v. . United States, 314: U.S. 306,

- 311. a

tk: silcoiing dhe Wecision in this petitioher’s $1084(d) -

. ease identified him as a person. within the scope of the act,

that identification cannot’ be made to relate back five to

two years prior tothe decision. Just as he wlio defies

an interpreting decision knows precisely what he is doing,

Screws.v. U nited States, 321 U.S. 91,105, a ‘heeessary cor-.

relative is‘that he is not charged with anticipating a lim-

Ne decision, and retroactive application for the, employ.

ment of criminal sanctions is ex post facto.

mye

We submit the Gov ertinent. chose its sshd iiiein it

aa Telephone Company, to divest. petitioner of .

the right s to the. use of its public utility. .

ow hile the instant action is a civil proceeding in’

that-plaintiffs seek“an injunetion, it is perfectly appar-

* \ i ent that Section 1084(d) imposes penalties for the vio- —

- lation of law and is in this respect quasi- -criminal in,

nature.’? Kelly vy. Illinois Bell Telephone Co., N.D.IL,

— 210 F. ‘Supp. 456, 463, affirmed 32, D F.2d 148.

| .

fr om 4

: uncertainty in regard to persons witlfin the scope of the

_, Act; Lanzetto v. New Jersey, 306 U.S. 451, or in regard

_tathe applicable tests to as¢ertain guilt’. Winte rs V. Umted 7

14,

See also Lees v. United States, 150 US. 476, iwi Trop v.

Dulles, 356 US. 86, 95.q. ,

In this sense it is unlike Fleming v. Nestor, 363 US.

603, where the fact of deportation on a specific ground

was sufficient to cut off the riglft to social security benefits,

here the penalty rests on ‘‘the operation of the statute on

the occurrence _ of the underlying act’’, and ‘‘Congres-

sional concern was wholly with the acts leading to the pen-

alty,’’ and ‘‘not with the faet of’’.the penalty. (Alt quotes

- from 363 U.S. at 620). As such the criminal penalty con-

stitutes an additional penalty based on the same acts.

That prior penalty action is an absolute bar to further

/punishment of this petitioner in this action under the

Fifth. Amendment prohibiting double jeopardy. United

States v. LaFranca, 282 U.S. 568,-which stands for the_

- proposition that exaction of penalties in a quasi-criminal

. action and imposition of penalties in. a criminal action,

- hased on the same ev idence, constitutes double. jeopardy.

We submit that the Severth Circuit's reliance on /el-

vering v. Mitchell, 303 U.S, 391, is not appropriate to ,the

circumstances here. _Helvering vy. Mitchell had to do with

the fifty percent civil penalty imposed upon fraudulently |

evaded taxes. This was rationalized as not being a pen-

‘alty, but merely remedial as it served to reimburse the :

government for the heavy expenses, investigation, and the

loss resulting from the taxpayer’s fraud. (303 U.S. at 401)

‘We; suggest the deprivation of the use of a public utility —

serves in No way to reimburse the government and cannot

be rationalized in the same light that the Supreme Court

rationalized in Helvéring.

We submit that the éonviction here should be reversed

and vacated as putting this petitioner twice — jeopardy

for the same acts.

“ew

Un September 15,- 1969, this petitioner filed a motion to

suppress his testimony given inthe trial, of Angelini: v.

lilinojs Beli Telephone Company, stating in said motion -

as follows: that on March 29, 1968, the agent in charge ~

the F.B.L in Chicago communicated with the Illinois

Beil Telephone Company and told them that seven of the

company’s telephiones were being used by Angel and: Kap-

» lan Sports News Service for the transmission of ‘*wager-

ing information ip violation of State bg Iilinois Statute,

Chapter’ 38, Section 28-10(a)(10) . . .”? - Two days later”

the United States Attorney followed ‘up-on that letter

requesting the teleplione service to the premises be dis- .

continued inasmuch as the telephones were being used in

. ‘violation of- the company’s tariffs. ‘On ‘April 1, 1968, the

-phgne company wrote to Angel and Kaplan Sports News

Service, attaching the two letters, and advising the sub-

seriber that the service would-be discontinued as of April —

8 On April 3, Mr. Angelini, sole owner of Angel and

Kaplan Sports News Service §led a complaint against

Illinois Bell Telephone Compary” seeking an injunction

- against the company -from discontinuing ‘the service as

“aforesaid. On April 16, 1968, evidence was. taken ‘before

the Judge of ‘the loweF court, and in the course of taking

: such evidence the Unit tates called this defegdant-ap- ~

pellant as an adverse witness under Rite 424!) of tlie

Federal Rules of jCivil Procedure over objection, it was-

further contended in the motion that such egidence as the |

United States of America obtained from this defendant

as an adverse witness on that triak could not be used against

-him in this subsequent eriminal trial in that it constituted

coerced evidence and he was protected by his privilege

against self-incrimination. (Doc. 20)

=n |

god

The rejeinder of the United States was a recognifjon -

‘that case iaw is that ‘the government may not, by means

of bringing a’ civil or administrative. proceeding, force a

defendant under pressure of losing property

“make statements which will be used-agains

sequent criminal trial, It distinguished, however, on the

basis that this petitioner brought the civil suit: and

thus voluntarily entered the suit well-knowing J the

rules of civil procedure and that once Angelini had filed

suit he was properly~called to-the stand by the Govern-

ment.* Since, said the. Government, the petitioner brought

the suit, it was not the Government utilizing a civil suit

’ to benefit a criminal case. (Doe. 64) The trial Court, ‘in rul-

*- ing adopted in substance the government argument atid con-

tinued that ‘‘it would be a strange and unwarranted re-

sult if one who iHegally uses interstate facilities, in aid of

im in-a ssub-

- racketeering enterprises -could ‘insulate himself from —

criminal prosecution by initiating’ an action against -his

telephone company ...’’ (Doe. 100, Page 12) ‘‘Recognizing

the dilemma with which defendant was faced in his civil

action, it remains true that he had a legitimate option not

to testify on hts own behalf. . ” (Doe. 100, Page 23)

It seems beyond dénial that the right of persons to tete-

phone service iS a property right within-the protection of

the Fifth Amendment. since a public utility mugt serve all

members of the public without unrensonable discrimina-

> Though the Assistant United States Attorney, upon ‘objection -

made to calling Angelini to the witness stand for advérse questioning

in the civil suit suggested .that the fifth amendment was available

to him, we submit a real and recognizable danger of having his. suit

dismissed -existed, foreclosing his only avenue of possible relief. See -

Stockham v..Stockham, 168 So.2d’ 320; Minor. vy. Minor, 39 L.W.

- 2263. s :

s o-

ights, to |

: D5 ae oe oi

tion, (220 F. Supp. at 625-626) It is also beyond denial —

“that only the availability to the. subscriber of a forum in

which to contest the deprivation of that property right

saves the statute from unconstitutionality.* However, the

6 dilemma is that. property will be taken without due process

ey / of law unless the subscriber brings thé action insisting.

f upon his due précess. The choice boils down to bringing

the suit to protéct one constitutional right at the hazard.

a | of. losing another constitutional right. The distinction of

the” government and of the Courts’ rulings are without’ sub-

- stance. :

If the recourse to the injunetion suit. is so hazardous,

§ 1084(d) is unconstitutional asa bill of attainder , Which

hag been defined as a legislative act whieh mfliets punish-.

rent without a judicial trial.* Cummings v: The. State of.

a 71 US. 277, 323; Inland Steel Go. v. N.L.R.B., 7

., 170 F.2d 247, We has Sake eS

__ Récently in. assessing a similar - this Court.

recognized the ‘‘undeniable tensien’’ created when one

right is set against another rjght—here the privilege -ver-

sus the prohibition against property deprivation without +

due process~and ruled it ‘‘intolerable ‘that one consti-

tutional right should have fo be surrendered in order to

assert anothe r.’? Simmons v. U nited States, 390 U.S. 377,

393-4. .

Further, we see no distibetion hetw een this case, and an

even more recent ruling of this Court: :

“We do not hold that a gov ernment agency may not

‘institute and prosecute. civil proceedings on charges

that may also involve a possible criminal proceeding

* The Fifth Amendment questionability of thisStatute (1084(d)) ve:

—from its inception in contest—is further aggravated when collateral

‘disadvantages result from making that demand. °

against the same persons. We hold merely that the -

Government may not use ev idlence against a defendant .

. in a criminal ease which: has ‘been coerced from him

under penalty of either giving the evidence or suffering

a forfeiture of his property.’” United States v. Detroit

Vital Foods, Inc., 6 Cir., 407 F.2d 570, 575-6; specifical-

- ly endorsed t ‘nited States v. Kordel, 90 S.Ct. 763, 770.

‘This case is also extremely similar to the case of the New

; _ Jerséy. Supreme Court, State v. Clark, decided March. 22;

1971,.39 LW 2576, where a mother, in order to get w elfare

assistance for her three illegitimate children, was obliged

to bring a bastardy action against the putative father; and

was also obliged to name, the putative father. Both par-

ties were criminally eharged with fornication. The New -

Jersey Supreme Court held: we a ee

. “The law should not allow constitutional rights of

- the parents to be. sacrificed as a condition to gaining —

public assistance for the children. Penal intrusions

of the kind involved here into the law af welfare must

he considere d restrained by tlie Fifth Amendment and

‘by our rules of evidence.’* :

Pursuant to warrants issued ‘raids were made on the

premises of Angel and Kaplan Sports News at 236 No.

Clark Street, Chicago, Illinois, on March 28, and April 4

of-1968. From these premises a roomful of. documents .

and equipnient were taken. (Tr. 729-745; 751-785; 815-

847; 881- 90}) hah Na:

‘Tn the course of that search the agents found: w hat had ©

been markéd Government’s Exhibit 39. That is described ;

as a letter that was on-the top of the middle desk in

-Room 801 of the ahove-described premises. The letter

was unopened. - The witness, Johnson, who seized Govern-_-

ment’s Exhibit .39 did not open it. Johnson also found

‘ : 19

-Government’s Exhibit 56. This was ‘«disecovered’? on a

large table in the middle of the room. It was an air mail

letter addressed to A & K Sports Publications, 236 North

Clark Street, Chicago, [linois. Both were first opened

_ by an agent of the F.B.I. two years later and were ad itted

-in evidence. (Tr. 1045-6; 1842) Objection: was made to the

introduction of both of these documents. (Tr. 899-900)

. _- We. suggest: that this Court, in United States v. Van

‘Le éuwen, 397 U.S. 249, implied that rightful possession®

will not void Fourth Amendment interestPitk the -privacy

of the mail until the approval of a magistrate is: obtained. ,

‘(397 US. at 253)

_ The Seventh Circuit accepted the representation, of the :

' Government argument that the contents of Exhibit 39 was

not admitted in evidence.’ We think that acceptance was’

misplaced. But it nonetheless ruled: eT a

“ Angelini also contends that the seizure of certain

-unopened mail discovered in his office upon the execu-

tion of valid search warrants was illegal. He also

contends that the opening of one such envelope ad-

dressed to Jolin DiDomenico im care of Arigelini’s firm

and the introduction into, evidence of the envelope it-

self was improper. We determined that the seéarcli

and seizure was proper in Angelini v. Illingis Bell Tel.

Co., 418 F.2d .111, 115 (7th Cir.” 1969), cert. denied,

397 US. 1040 {1970), when. Angelini’s counsel: spe-.

cifically raised the issue of the propriety of the seizure

of a number of items, including the unopened mail. An-.

, gelini cités no convincing reason to disturb that de-_

~ _ terminatiog, and we shal] net do so. His contention

5 Assuming tlie validity of the seizure in the first instance, and

discerning no distinction between that valid possession and the .

validity of the post office possession in Van Lecuwen.

-) with regard to the. opening of the DiDonienico letter _

is Vague and unpersuasive, especially in view of the”

fact that the contents of the envelope were not offered

in evidence. We find no error.’’ (App. 27)

Thus, the Seventh Cireuit avoided the primary’ issue in

reliance ona Gov ernment representation.

But po such issue*Of whether or not the contents were

used arises with regard to Exhibit 56. ‘‘Special agent

Shanahan testified that he had opened the envelope and

found that it contained United States currency and apiece

_ of paper upon which was wr itten the. words “Oak Park.” ‘

(Govt. Brief, p. 282) 3

The opinion, the Court will note, does not: prea itself

at all to this important exhibit (56), about which Agent

Shanalian testified at length, relating it to yet other -ex-

-hibits. Nor does the opinion even mention the opening’ of ”

these letters two years later for purposes of trial, and

rule on: the propriety: or impropriety of. such a. practice.

We submit to this Court that the refusal of the Appeals

Court to recognize facts and. arguments® actually void the

statutory right of appeal, especially in these days when

this Court, overburdened as ‘it is, must of -neeessity deny

‘so many petitions for review, and amounts to a deprivation

of appellate due process.

We think this C ourt, in Van Leeuwen, clearly iterated its

position initiated in Ex Parte. Jackson, 96 U.S. 727, respect. _

ing the reach of the Fourth Amendment to first-class mail.

~ Sée also Lustinger. v. United States, 9 Cir., 386 F.2d 138

139 and, Oliver v. United States, 8 Cir., 239 F.2d. 818, 822 3

respecting the sanctity of unopened mail, even though in |

6 These omissions wére clearly’ brought to_ "the attention of the ,

“Seventh Circuit on Petition for ‘Rehearing. .

"21

the lawful custody of another agency of Government, the

Post Office Department. |

“We would also submit that i in I ill v. 1. Philpott, 7 Cir, 445

¥,2d 144," the same Court, adopting this Court’s reason-

ing ‘in the ercat case vf Boyd v. United. States, 116 U.S.

616 and Schmerber. v. California, 384 U.S. 757, gave heed

-to the interrelationship of the Fourth and Fifth Amenil-

is ments, and recognized that: ;

- Amendment also involves, Fifth Amendment claims,

the first step in considering a motion to suppress is |

to determine whether the introduction into evidence of

the material seized would violate -the: Fifth Amend-

-ment. This is to be determined by inquiry as to wheth-

er the evidence ‘relates to some cofnmunicative act or

writing.’ If it does, the’ search is barred. under both

* Amendments. pe AS oy ee ie

This case, and particularly Exhibit 56 presents. ‘exactly

the same predicament, but aggravated by’ the opening of . -

the communicative act without warrant. ' Presenting, as

this issue does, important questions of Fourth and Fifth

Amendment right, we submit it is not so lightly to be cast

3 aside.

V and ‘VI

‘Count IIT of the Indictment ‘hiseabeid that Seaakd Ange--

jini, on or about September 209, 1967, at Chicago, Illinois,

‘did unlawfully, wilfully and knowingly use and cause

to be used a facility. in interstate commerce, to wit,

the United States mail, with intent to promote, man-.

age, establish, and carry on and facilitate the pro-

-™ Pending on grant of certiorari in this Court.. See also United. °

States v. Blank, N.Ohio, 330 F.S- 783,’ adhering to Hill in a $1952

- case. 2 At mat .

_ in’-any case where a seizure under the Fourth

. ‘motion, mamagement, ' establishment and carrying on: -

em an sunlawful activily, to wit, a business’ enterprise

volving gambling offenses, in violation of the laws ~

of the State of Illinois, to wit, Illinois Revised Stat-

utrs, Chapter 38, Section 28-1(a) (1), (2), (5) and

(10), and thereafter did perform and attempt to per-

form acts of promotion, management, establishment

and carrying on of the said unlawfyl activity:

' . “Tn violation of Title 18, United States Code, See-

tion’ .1952.’* (Doe. 2)

am motion was’ made to dismiss. the Indictment (Doe.

. 23),- including’ this. Count, challenging its sufficiency, and

alleging it violated the Sixth Amendment and Rule 7 of

the Federal. Rules of Criminal Procedure, ond iets Ria par-

ticularly as to Count IIT:

**12. Count 3 of. the indictment. is violative of- the

Sixth ‘Amendment to the Constitution of the United

‘States for failure to advise this defendant of the

nature ‘and cause of the accusation against him since —

it contains no faet allegation but the date and mere

identifieation of the type of. interstate facility, and,

if ‘allowed to stand, the government could satisfy the»

indictment’s scope in any of an unlimited number of.

ways, and the defendant-has no opportunity to prepare

a defense, nor ‘be protected — double . Jeopardy.”

As to the. vagueness of the charge, Gourt. of Appeals

held:

- Tt did omit the opposite ‘salle of the use of an in-

terstate facility, stating only that the United States

mail was’ used ‘in interstate commerce’ ‘at ‘Chicago,

Illinais’ or..or about a ‘certain date. However, the -

questéon, of ‘the location of the other terminal of the. .

use is in the nature of évidentiary matter to be dis-

covered by a motion for a bill of particulars. Carbo

ae United States, 314. F.2d 718; 731-33 (9th Cit. 1963),

cert, dénied, 377.U.S. 953. (1964). The additional in-

ae 23 .

Sievandieak desired by Angelini was: -supplied ‘by’ the .

Government in its bill of particulars provided pur-

suant to his motion. -We hold that Count “Three wae

the indictment was sufficient to charge an offenses un-.

der 18 US. C8 1982 ? (App. 28) - |

Of inka A resofution solves nothing. It ‘is beyond

cavil that a Bill of Particulars cannot breathe life. into a.

“defective indictment. United States v. Comymo,: 248 US.

349; Dunlap v. United States, 165 U.S. 486. It is no answer.

to the insufficiency of the ae that we seek evidentiary

matter, In a way it is true that all. indictments. plead

matters to be proved, and, in that sense, -aré evidentiary—

but, there must be reasonable assurance that the accused

is defending-against the charge br ought by the grand jury.

That assurance is singularly missing here.

The mail cominunication proved was not actually a use .

of the mails by Angéelini‘at Chicago, Illinois, on September

25, 1967, but-was a use originated by one. Harry. Levine

at Detroit, Michigan on September. 29, 1967 (Government

- Exhibit 15), wherein | he forwarded a $350.00 check to

. A & K Sports News in Chicago. , Thus does the indict- |

meift become more and more vague, for Mr. Angelini be-

comes not a prime mover, but an.aider and abettor of the

ymnamed principal,* on a communication originating in

Detroit on September 29, the date of oe check, instead’ of

oe 29, HE Pas i 7

8 This we assume is the. government theory, for as a result ofa

mutually casual self- introduction and .a discussion of their respective

businesses, - Harry. Levine ‘ siibsequently received applications for -

sports publications. See Government Exhibit 42C. Yet this theory

ses substance when, we consider the government’s recognition that

Angelini had a right’to publish and ship the schedules i in commerce :

= Continued Page sg

_ Thus it becomes more clear that under the generalities .

eof the indictment, the government was allowed to prove

prey the grand jury did mot cKarge. It is inconceivable

soe

that the grand jury, having any. knéwledgé. of the’ Levine

check, would not know’ the actual, date of its making.

Footnote 8 Continued

(Govt. Appeal Brief, p. 81) Fhe law seems established to

as wae United States v. Arnold, 4 Cir., 380° F.2d 366, 3067;

‘People v. Galan, 110 Ill.App.2d 98, 249. N.E.2d 118, 119.

". The government’s witness Levine testified that, for the. $350, he

‘received the schedules plus news events of various sports.

“Tt, thus, appears clear that no crime at all was committed. How-

ever, _ hotwithstanding the unconteste® evidence of Levine, the. Court

of Appeals ratjonalized to a conclusion: contrary to. ‘that evidence :

“Angelini’s challenge to the sufficiency of the, evidence -to

*-conyitt him on Count Three ‘is based chiefly on two ‘theories :,

that, since the use of the. mails was an out- of- state customer’s

“mailing a payment to him, he did not use the mails and) /that. .

: there is.no evidence negating the possibility that the payment

to. Angelini was for printed schedules sold to the general public

and not for providing the line. There was evidence before the

jury. that’ the customer had paid Angelini $350 for a. football

sedson’s service and that the printed publication Angelini. dis-

tributed cost $.25 per copy per week.” There was no evidence —

that. the customer subs¢ribed to more than one copy ‘per week ; .

_ indéetl the evidence was that he subscribed for ‘his “personal

use alone. We believe -the jury, was “entitled to infer arith-

| “-metically that much of the $350 fee:was for the line provided |

' by Angelini, especially in view of the. fact that the, evidence .

"esti ablished that the customer called Angelini as frequetly as a*

dozen times a week. ‘Theréfore, even if we assume that Ange-

Tini’s printed materials were not prohibited from interstate dis-

tributian, the evidence was sufficient.to establish hat Angelini

+ made use, of the mails to distribute the line to his out-of-state

customer who also made use of the: mails in paying ‘for. Angelini’s

services. “The evidence of guilt under, Count Three was ade-

quate, - (App. oe

This, it is appar ent that the: grand jury. baie no jéow!.

25, “1967 ; w as to be ness am a pmey Do ailed at Detroit,

oy Michigan, dated September 29, 1967; and it is:equally ap- *

parent ‘that they could not charge what they did not know:

-. This Court has repgatedly emphasized that it is as much

a violation of due process to send an. accused -to prison

following. conviction of a charge on ‘which he was never

tried as it would-be to convict him of a charge that was

: _never made. ‘De Jonge v. State of ‘Oregon, 299 US. 393,

3862; Cole v. State of Arkansas, 333 U.S. 196, 201.

.Like the indictment condemned , in Russell v. United

States, 333 U.S. 196, the charge ‘made here ‘left the prose-

cution free to,roam at large — to shift its theory. of crimi-_

nality so as. to take advantage of each pees vicissitude

of the trial and appeal. iad

The directions of this Court in the’ hove coees "eases, and

others, were assiduously follow ed in United States v. Toma-

‘setta, 1 Cir,, 429 F.2d 978 and in United States v. Critchley,

a 3 Cir., 353: F.2d 358, and, thus, thie Gocizion is ‘in direct

conflict with those circuits,

oe: Tomasetta, the Court recognized the dileramna created |

by. being charged with ‘making: threats by an unstated

Means. to an unnamed person‘on a ‘particular day in a city

_of moderaf@ gize.’? (429. F.2d at 979-980) In Critchley, a.

- Title 18 U.S.C., $1951 prosecution, the Third Cireuit held -

that proof of threats on October 5, 1962, did not satisfy

a charge ‘that they were made on October 7 and 8, .1962.°.

“~

“9 The only vitia sonar before the ir jury’ would be the Levine

maiting of a dated check. Though the indictment charged a violation -

“on or about September 25,” no leeway can be*tolérated on this

basis, where the evidence.is documentary. -

This « case violates both those ae which, we submit,

-should be elementary under the ee one this:

Court’s Rules and opinions. - a

* We would suggest a paralleY to further - demonstrate the ©

" Megality of the charge here. The usé of the mails is the

_gravamen of the charge ‘here brought under Title 18,

U.S.C, $1952; as it is in every case brought ufder Title

18, U.S.C, $1341. In the setting of that latter older, moré

familiar amd tried statute, sppcifiewdescription of the nmail-

’ ing is requiréd to be alleged, United ‘States v. Shavin, 7

Cir: 287 F.2d 647, 650. Charges under both statutes being

‘bound by the same Censtitutional and procedural protee

tions, no reason suggests itself why less should be @lerated

here. ; ats

‘ VIL. .

In stating’ a purpose of 18 U.S.C., $1952 and its com

panioy statutes, the Congress ‘expressed a purpose of as

sisting the States in the e nforcement vf their laws pert

ing to gambling, J9okmaking and like ‘offenses AW ‘ode

, Congressional ‘and AMninjstratin ve News, 1961, 1) The

vidlation puinished here is the use of interstate facilities *

tv violate Chapter 38, §28-1(a). (10) Ill. Rev. Stats. With-

out that state statute there wonld be no violation of iaw.

. The fillnois Statute of Limitations is eigittgen months,

and clearly punishment for its violation avas outlawed ‘in -

the State. Minoi« courts have termed their criminal limi- -

tations . statutes ‘y- Surrendering by_the sovenean: Af ila.

right t6 prosecute . .._ The statute . . 1s an amnesty .

People v.-Jacksp, 178 WLApp. 35 | 156 N.E. 363, 304.

Thix Coust, in the grent ease of Erie ». Tompkins m4

US. 64, recognized ‘a clash with the Tenth Amendment,

: ‘where tHe righi« to be ‘vindichted in the federal theatre

are depe ndent on State law. Following Evie explicitly, this

Court in Guaranty Trust Co. of New York v. York, 326US.

99, held that a statute of titmitations “that would com-

pletely bar recovery in a suit if ae a Staie*court.

bears ¢ on a State-created-yight eee .”, (3826 US. at

110). . , ,

We submit there is no distinetion wher entry into the

federal forum to vindicate state-created sights based on

the statutory availability of those courts derived fn

‘ ~ Article 1, Section 8 of the Constitution on the basis of

_~ diverse citizenship, and a like availability to vindicate

‘state-created penalties, where the entry rests on the Com- -

merce clause. ag : ‘

Vil. on i

s géeogniztd in the decision of the’Court below, the

major source of the Govertiment” s evidence was’ Lesis

Bombycino (an undeseover- employee of the Government

- during all of the matters to which he testified) arf] the

major source of his evidence. was thie statements of Frank

Aure li, a co-defendant, which Bombacino testified were

made to him concerning the activities of the other defen-

dants, ifteluding your petitioner. On the basis primarily

of this Court's decision in. Dutton.y, Evans, 400 U.S. 74,"

the Court below endorsed the admission of the evidence

Bombhacino gave about what Aureli fold him.

This case is clearly not contrdiled by Dutton. In, that

exer, in distingtishing Douglas (Douglas v. Alabama, 380

1S. 415) and Bryton (Bruton v. United Stated; 391 US.

123), the Supreine Court said that Putian, unlike those

cakes, **does not involve evidence. in sense ‘crucial’. or

‘devastajing’."’ _Bombacino’s evidence was hot enily crucial

and devastating, it is the only evidence. Also cofitrary to’

Dulton, this case did involye a joint trial, and, in that

¢gonse-is in a like posture with Bruton and Roberts (Rob-

erts v. Russell, 392 U.S. 293). Further unlike Evans who

was ‘able: to call] Ww illiams, whom the witness Shaw pur-

ported to parrot, but decided fot to do-so.‘‘in the best

interest of his client’? (91 S. Ct. at 219), Angelini was in

no position to call Aureli whom Bombacino purported to

parrot, because as he was a co-defendant, he could not as a

‘legal proposition. As a physical reality, Aureli wis lios- .

pitalized during the trial because of emergelley surgery

and was unavailable to give testimony, aad he was severed

. out and. the trial continued as to the other defenilants. It

should be nofed that both California v. Green, 399 US.

149 and United States v. Griffin, 434 F. 2d 978, cert. den,

ub nom Andrews v. United States, 402 U.S. .995 relied

upen the availability and presence of the alleged declarant.

Further, Shaw’s evidence, in Dutton was ‘of peripheral

significance,’’

“mouit significance. Without Bombdcino, theré was no evi-

denceat all. eas

Bit there’ are yet furthe r considerations i in the exatnina-

tion of Dutton? The ¢ Court will remember that it was a

five to four decision. ;

Mr. Justice. Blagkman. who joitied the majorityadid not

join “he majority because he thought Shaw’s testimony

admissible, bui because ** the claimed circhmstahees of tts.

utterange is so ineredible that. the testimony miist have

hurt, rather thari helped, the frrosec “utjon’s case.’’ (9) S.Ct.

at 220) He felt that Shaw’s “‘ine primer remark- fades-into’

practical and legal insignificance’? (91 * at 222), dnd

that the error—if any—was harihle ASS

- doubt.

** Mr. Justice Harlan recognized that the majerity rule of

Dutton is “not apprppriate to fede ral prosecution: ‘Ex.

while, Bombacino’s testimony was of para- -

‘yond reasonable

--*

elasing of such statemeiits, as is ie in tlie federal courts, —

‘ commends itself to me, but 1 cannot say that it Is easen-.

tial to a fair trial. ” (91 S. Ct. at 225) Een —

' Of course, the marginal minority (5-4) felt the intros |}

duction of the evidence ‘‘a clear Violation of Kvan’s .con- |

-Stitutional rights.”? ©

We submit Dutton has no applicafion to the ease at, bar,

and, as Mr, Justice Harlay stated, ‘ip federal courts such :

evidence -is excluded. : : :

In U nited States v. Dobbs, 448 F.2d.1262, the Fifth Cir-

cuit found statements of a co-defendant to a federal agent

so, clearly inadmissible as‘not to merit comment.’” Ther® °

*is no difference between the testimony of Bombacino here | .

(a paid Government agent detailing what a co-defendant

told iim). and the F.B,I. agent doing the ‘same thing in

Dobbs.

The decisions are in conflict.

| CONCLUSION a

Wherefore, this Petitioner respectfully prays the Court

to issue its Writ of Certiorari to- the United States Court

of Appeals for the Seventh Cireuit. Ee

. : Respectfully submitted, ss tg a

° aes y - Anna R. Lavin, Poh eg ; e,

. , ’ Epwarp J. Caungax, Jr -

y 7 Use . Attorneys for Petitioner, “a. ;

as : Donald J. Angelini are: .

. , _

-” ‘ * 2 . ®.

. . .

-% The decisien merely discounted the*°excuse of the prosecution 7 x

thatthe evidence was brought in for impeachment purposes.

sgt rie

a0 ot ten pence geen eneh tes ence

‘ APPENDIX “A”

—

Anited States Court nf Appeals

For the Seventh Circuit fe

Serremsber Terat,-1970

Aprit Session, 1971

_ P e

Nos. 18551, 18455, 18622, 18635

- - \ 2 , :

‘Unrtep States or\ AMERICA,

. VS. ; it aan,

Joun Pritir Cerone, Sr., James Cerone, Josern Ferriowa,

DonaLtp J. Anceini, and Domixic CortyNxa, ”

Defendants-Appellants.

Appeals from the United States District Court for the

/ Northern District of Illinois, Eastern Division. °

a : oO ‘ .

“ss *

Serremper 15; 197% ~.

3efore Swycenrt, Chief. Judge,.Srevens and SprecHeEr,

Circurtt Judges. ,

- Swycert, Chief Judge: These. consolidated appeals.

.challenge the validity of judgments of conviction entered.

-upon jury verdicts which found defendants John P. (Jack)

Cerone. Sr.. Donald J. Angelini, Dominie- Cortina; James

Senet fmf . Plaintiff-Appellee,

rer i a

Cerone _ J oseph Ferrtola, guilty of erecta to viglate ©

18 U.S.C. § 1952 in volation of 18 U.S.C.'§ 371 and which

found, Angelini guilty of a substantive Violation af séction ©

1952 as well. Because the defendants each challenge, inter

alia, the sufficiency of the evidence to support their con-

victions, we shall recite the facts addiiced at trial in some —

detail, viewing -the evidence in — light most favorable:

to the jovernment as W e must. . .

The Major source of the Governments evidence against

the defendants was Louis Bombacino, a paid informer who

had been involved -in the o operation of defendants’ allegéd

gambling conspiracy from late June of 1965 until about

August of 1967." Bombacino had heen.a rather unsuccess-

‘ful criminal for mich of his life, alternately. atte mpting

mail theft, forgery, robbery, extortion’and the confidence

game to support himself between the several prison ‘terms

he received for his endeavors. In April gf 1965 while he

was in jail awaiting trial-on a State charge of robbery,

Bombacino agreed to become an informer. “Most of what

follows.is based upon his testimony. : .

Prior to the disposition of the robbery charge in Sep-

tember of 1969 (when he was placéd on probation fora

period, of five- years) but subsequent” to his agreement to

become an informer, Bombacino contacted Angelo- Kokas,

an old friend on June .25, 1965 and, pursuant to their.

conversation on that date, returned to the MG41, Lounge

in Chicago at about midnight on the following day.-When

he arrived, Kokas, Frank Aureli (a defendant as to whom

a ‘mistrial and severance were or ered because of his

&.. tars

'!Boinbaeino réceived. slightly in excess of $3000 over the per lod

of 45 months or so-during which he ser rved as an informer for the

_ Federal Bureati of Investigation. -

- @

Sy ee

pet illness during the trial), defendant -Ferriola,-

“Turk”? Turello and: John Varlas were seated together :

ata Baga the restaurant portion 6f the Lounge. Bom- -

~bacino wént to. the table and shook hands with Aurej,

who inquired as te whether’ Bombacino was ‘‘going to

give up getting. [himself| in trouble all'the time, back and

- forth; in wand out of jails.”’. Bombacino replivd that was the

reason he wanted ‘to see Aureli, that he wanted to go to

work for him. Atreli then looked at Ferriola, who nodded

and told Bombacino: ‘*You go to work for Frank [Aureli],

but be careful. Phere are a lot of @ heat on-the street.’”

In accordance with the foregoing conversation, Bomba-

cino’ wert to work for Aureli as an employee of the book-

making operation conducted out of Aureli’s apartment at -

£355 South Sawyér. Bomacino’s and Aureli’s daily ac-.

" tivities were essentially the’ same each day at the Sawyer

_ Street address, except that on Monday mornings Bomba;

-cino would go to Johnny Manzella’s sausage stand to pick

up “baseball betting- sheets which showed the teams. sched-

uled to play. for the weék. with various columnar rulings

:which were used. to record the pitchers for eaclt team and

the ‘‘line,”’ that is, odds and point spreads on each game.

Except for that Monday: variation, each day Bombacino

would go to 4355 South Sawyer at about-10 or j1 a.m. The

line would be obtained by a telephone éall placed by Aureli,

‘and he dnd Bombacine would then remain at the apartment

taking calls from bettors and recording bets ‘until about

- 4to6 p.m. The totat of the day’s bets taken in by Aureli-

and Bombacino,on June 27, 1965, Bombacino’s first day

on the job,. was about $15,000, the record of which was

turned over that evening -to Johnny Manzella whio was

identified as ‘‘the boss of the district.’?

™ 2 : “« F

? Bombatinv testified that ‘‘@ heat” meant agents of the Federal

Bureau of Investigation. . af

App. > eee x

ee aaa ” About July 2, Aureli told Bombacino that — Kokas

was. pocketing some of the bets he received and that. they.

weré going to Domenick ’'s Pool Room. .Whert they arrived

‘at the poolroom at about 1 i». m., defendant Angelini, Kokas,

Manzella and Joe Giancanna were already there. The group

went into the poolroom section of the establishment (it

. ‘also had a barber shop and candy ¢ounter) where Angelini _

, ‘told Kokas he was to call in all bets of $50 or mére to”

* Aureli. . Kokas acquiesced without protest, and Aureli then

* "4 gave Kokas a telephone se sae whereupon Aureli and .

Bombacing departed.” Flak ta a Su ‘

_ *About the middle of October, 1965, Ayreli told Bomba-.

cino that they would be moving to Maywood, that they.

. . would be working for defendants Angelini and-Cortina, and .

that Bonibacino would no -jonger pick-up schedules from

-~ Manzella. _A day or two later, Bombacino and Aureli did

, move to 321.West Lake Street in Maywood. ‘The loeation

was described as a sinal] store with a barricaded back door, .

equipped with two telephones and’ two bickets of water? —

Bombacino and Aureli operated in- the -same fashion as

before, except that on Monday mornings Bombacino, would

"pick up schedules*from the office of Angel-Kaplan Sports

_ News, Service (wholly. owned by Angelini) at 286 North -

Clark. Street in Chicago and he also-drove Aure lt to and,

from the Lake Street location each zie In addition, Bon-

* A day or two before thé move to the 321 West Lake Street

address, ‘Aureli told Bombagine that they would be using dis-

¢ + solvable. paper and that he would be picking up such paper at

Jatl Garbee’s printing shop. Garber testified that he had printed

columnar and horizontal lines aon such paper for Aureli as early

. as about June of 1965.- With bets being plae “ett over the tele-

‘ + phone ‘without. money changing hands at-the tinre of the place-

“ ment of a bet, it isnot. difficult to understand, the purpose of

buckets of water at a- bookmaking site where dissolvable paper

» was used. :

‘ “App. BN ae ‘*

bacino — to make the’ daily hohe calls to Ange-

lini’s office to obtain the line.’ Sometinies-he spoke to Ange-

_ limi personally in that regard. While at the Lake Street

location, Aureli intr oduced Bombacino to J ehn DiDomenico

whom he identified as the bookkeeper. for. defendants Cor- -

tina and Angelini. DiDomenico picked up thesbetting réc-

ords from Aureli.and Bombacino on a daily bas s

yess he ‘‘nmg arowid’’ the Lake saad book nd took

ts over the telephone.

“. °°. Three or four weeks after the moye to Lake Street; :

> Aureli and Bombacino moved agam_ toa new location’ at

«= 6955 West Grand Avenue ron after Aureli informed. -

~ Bombacino that ‘they would so move. The charaeteristics ’

gf the new ‘site - and its’ equipment were essentially the

Same as at the. former loeation, A day or so after the

move, Aureli introduced Salvatore (Sammy) Molose to:

Bombacino at the. book,’ stating that Molose was a good |

friend of Cortina’s and that Aureli was going to teach him, .

‘*the. business.’’ Botmbaeino’s duties remained the ‘same; |

however. ae a bao

“On January 7, 1966,- Ahe ais another hookkéeper faced

“ Andy Federenko wa'’s arrested, Aurgli told Bombacing that

> si were going to.the MGM Lounge to meet with Fer- ied

>. riola. "They: met Ferriola and Turello at the Lounge at

about 7:30 p.m.- Turello inquired. of. Aureli whether he -

knew ‘anything about Federenko running an unauthorized

book with Edward. Bis sacky ‘that was taking in $50, 000: per

month. - Aureli denied any such-knowledge, and Ferriola’

instructed him to contact Federenko and detemine whether

he knew of any such book. The next evening Aureli ‘told

Bombacino thfat they were going to- meet Federenko at the

° Division Street Bath House. They, cid so, and, in a eon: .

versation in the steam room, ‘Federenko denied knowledge

hein

oe ~~ App. 6

of ‘ce Gok Aureli expressed disbelief and, stated ‘to Fed-

erenko that he. would have to answer to Ferriola since he.

had told Aureli to inquire of Federenko‘about the book.

On January 10, Bombacino, Aureli, Mawzella, Federenko

and Ferriola’met at a sausage stand, and Ferriola ordered

Manzella‘to get Manzefla's betting records for Ferriola’s

- inspection. ‘Ferriola further ordered. Federenko to take ©

no more bets ‘and to turn. over ‘all his bets’ to Aureli.

‘Early i in EP ebr uary, 1966, Aureli told Bombacino that the

betting was getting too heavy so that the bettors could not

get through to him on the telephone and that Cortina was

looking for a new telephone. Bombacino offered to use .”

‘his, home telephone for receiving. bets... Aureli. said he

would let Bombacino know as to whether that was accept-

‘able,’ and within ‘a.day or two Aureli told him that he.

should get a telephone and that he ‘would be ‘taking all-

out-of- tow Sports action at [his] home. she Bombatino had

a telepne installed at his apartment at 2540. North Mann-

. toad and began hooking at his apartment. His duties ~

remained the same Mondays only, pick*up schedules

from Ange lini’s office ; daily: transport Aiureli from his’

partment. to his book-at 6954 West Grand; daily get the.

‘‘line- from Angelini’ s office ; daily take bets over the tele-

~peje

“ the book had fared for the day. a ee

phone from about 11‘a.m. to. about 6 p.m.; and daily turn ,

im betting records to DiDomenicd «in the evening. ‘Bomba-

cino received almost daily telephone ¢ calls from Nate Wigod,

a “hig bettor ‘from Dettoit. sie ‘s

‘Near the end of April, 1966, ‘Aureli went is Miami,

Florida fora W eek to ‘ten days... During that period, he

called Bombacino in [linois every ‘evening -to sas how

During “May or June, 1966, on tlie oceasion of his taking

some money to ‘Angelini for Aureli, Bombacino had a_con-

hn aK

ane eran App. 7: ; ,

- versation with Angelini in tlie latter ’s office. When Se

hacino” inquired as’to how Angelini. was doing, Angelini

replied that he “didn’t tike baseball because “it looks -like

f Angelini} was —: another #2 200,000 this ya on base-

ball.’? © | :

In the mee part of June, 1966, -Aureli told ‘Botnbacino |

that Aureli was going to move. his hook from 6955 West -

“Grand_ to, 6949 West Grand. Aureli stated’ that Molose

‘ would be werking at home and that Bombacino would con-

we?

: by: Cortina and Aureli at Bombaeino’s s apartment,

told Bembacino. that Molose had. Jbeen arrested and that

Session.

“pay Bombacino}s ‘telephone bills.

tir ue to take the out-of-town bets at his apartment.

Toward the end’ of “July, "Aureli- was arrested-fergam—

bling at his book which had-been moved f¥om 6955--West

Grand .to 6949. West.Grand: “Phat ev yening, Aurel cailed

Bombacing and, after4some discussion, Aureli_ stated that

the reason” for thé delay in. getting out. of jail was ‘that.

Cortina ‘had a hard time. getting | hold of the attorneys.’

‘The followi ing day, Aureéli: and - -Bombacino met. Cortina at:

_ Meincher’s Restaurant. At that: time Cortina, ‘statéd, “We

are going to giye Frank ,Aureli a vacation at this time.

Hecause he had _alteady a couple of arrests for gambling ©

and just got busted again; ther efore, Sammy Molose. will |

| take the docal sports action at his Hiouse,. [Bombacino] will

take t the’ out-of-town action at-[his] house, eres dick take ’

the rest of sire action ut [my] place

The evening of Decembei 7, 1966, Bomhacino 1 Ww as visited

Cortina

he avas conce?ned. that police might have found ~Bomba-

cino’s telephoy 20 numbers in Molose’s home or in his pos-.

Cortina then, sug

his'teleyhone numbers, whieh he did. | Aureli continued-td

\ ry

” < *. 7 °

eo", : or ke ae _ .

Fa a “e = “e ° . e + ®

. 7 z wie J

. oe —- : = ;

se : a

gested that’ Bombecino. change:

re On spake s Zi, 1968, Tembacing was called by a‘man

, who identifed himself as * ‘Jetty. 't” Pursutnt Yo that con-

~~" “* versation, lyecino went the next ilay to Meo’? Norwood

: * House Restaufant at afout noon. He was directed by the

aah maitte d’ to the hack of the dining rooiy where lg\recog.-

nized defendant Jark ‘€ ‘erone: seater] at a table with Paul

DeLuca. Cerone said to Bombacine that be had”

~ heaging nothing but faterable reports about Bombagino

- ~ and that .he had ¢ in migd for him, but that he

. m* first bard to talk te someone later on that day. He askyyb

ais, if Bombhacjno could Tmcet bith the next dag at-a bar called ~

“The Leather’ Bottle’ at 4 pan. to which Bombacino re-

plied he: would. Cerone also stated to DéLucia that De-

* Bucta knives Beinhackao heeause Bosnhacino’s brofher used

‘7° sto make dietetic pastries for DeLicia. When Bembacino’

funite “—7rAMed to his apartme nt,"he called” Aw

_of she conve rsation with Jack Ceroné.

|“ Qood., Yon’ re “really getting. up there.”

. * The following day, Bombacine went’ to Leathe T

Bottle at the appointed time. He” havd, a drink as he waited,

reli_ replied,

J and told bine ~

ind a few mipiftes after he arrived, ‘2 man who identified’

- himself as ** Lefty”’ came in ‘and s roke to Bombacino. Bom-

cbacina then left the*Leather Bottle and crossed the streét,

- entering Armand ’s Pizzeria. There he saw Jack Ce

seated alone at & table in the bak. Lefty went f ani

the “har in Armand’ s,-lenving Cerone and Bom

Cefone told Byiabacino he wasted him to service some big

7 ; esr bettors dn addition to” these he had and that he wanted

-4* * Bombacino to meet someqne who would begin momehtayily.

A few minutes ldter, James: Cerone same ih. Jack Gerone

+ begat to Jntteduce Romtacino “tq James, but Jantes state,

~ “sy Pnow Jon for a long time,.’*- James Ceroné sat. down.”

and told acino that bothers, © woutd call him and Alen. ,

. 5 Seer — ..

tify theinsélves as *Goldblatt’* with some initials which

- would engtle James to identify. them. Jack Cerope then

placed a telephoge call within thee hearing range of those

___at the table and asked to speak to. Joe Pep (Gianeanna).

He-then sail into the tefephone, “Be suré to tel) Joe Nick .

[ Ferriola|*to be at . ee Armamd's”’ at 8 that night. Jack

-Cerone further stated to Bombacino that if he had aty

. problems he was to straighten them out with James Cerone,

ope thn failing, to contact Jack Ce erone through the pizza ©

toaker at Armand’s. iat evening, Bombacino reported

Bombacigs returned to 4rmy¥ ts at 8 paar, finding Jack

Cerone sapling py already together” there. Bombacino

joined the two at a booth. Cerdne started. to introdtiee

Bembacino to Ferriola, bart Ferriala stuted, “He has been

with us a long time.”’ apeteed sa aon: —

“at that time. .

Early in tho ovetiig-ahcie fwe welt Jéter, Bombacino -

again get with the Cerones at-Armand’s Pizzerin. Bomba-

.cino tokl Jack, Cerone that ‘‘there was a lot of bookies ;

ee ey ieee :

eta the counection it shield be neted that Rachesige was:

‘being paid $200 per week plus an offgasional bonus. Iie stated he

* gleMed ap bis ‘and Aaureli’s pay envelopes cach week at Chester

and Bruno Sromek's Sinelair service station where such envelepes

*= wese stored in a safe. There was also evidence that Angelini,

, Cortina ued Ferriela wete seen on one or more oreasions at the

station Or in the company of the Sronicks. The Sromeks were *

named in the in@jetinent 2s unindjcte! roconspirators, It ts also

noteworthy thet, « despite several changes in Bombacigo’s status

. amd loéation, bix hasie rate of pay and the location at which

é «he collected! hin weekly pay entelope never chggecd

: ; ‘ F ms :

. . j @e. ie

; ht es ., ;

~ .

- _

2 App. 10-,: . . o

[lie] was on probation." Jack Cerone teplied that Bome .

. baeino should not werry because Cérone knew a judge whio

* would take vate of thiniys if Bombacine ® eve arrested. Jack

Cerone and ‘a companion. then left, but Bombiacino and

James Cerone remained to reviéw Bontbacing’s records, of

the’ week’s ‘**Goldblatt’’ bets. Subsequent: to that confer-

enée, Jack Cerone would telephone Bontbacino each “eve-

‘ning, and _Bombacino wonld turn ove ‘a his records of that

day’$ “Goldbiagt”? bets. |

‘About. Masch 14, 1967, Seislusine and. C ertind met at

* the former’s-apar fment and Cortina gave Bémbacino some

motiey- to deliver. to°a local _bettor, of Aureli’ * who shad’

¢ome out ahead’ far the, week. Pombacino made* the. de- °

livery. On about the same date; Bombacino astd *Aureli -

also had a conversation at Bombacino’s apartment. Aureli ©

told Bombacino that there avas a- new system for taking,

. + bets whereby: bettors would call Aureli and simply give

their names’ to- him, whergupow -Aureli would telephone

..another man ivho, in turn, ‘called the hettor to accept the

i» bet. The reeord foes not reveal whether Bombacino par-

tieipated in the utilization of this new anethodology.

‘Some’ time thereafter, Bombacino maved to a ,new apart-

~ ment on" Darsyl Avenue whete he continued to. operate the

hook. until ‘late July or early August, 1967, when he receivetl

-a telephone eal from James Cerone in the: early morning.:

_ James Cerone merely told Bombacino not to take ahy more

bets and that n¢é one would be calling him any longer ‘and

then ‘hong ap- the telephone. " Botibacino left Chicago in’ *.

August of 1967. ;

The Government’s case- in-chief included ether evidence.

_ testimonial; demonstrative and documentary, which isnot .

related here and w vhith tended fo corrohorate some of Bom-

~ bacino’s testimony. — ee ips

> as

App. i

The defendants’ evidence was, largely’ directed . to an

attack on the credibility of ‘Bombacino.- kor example; the’

Sromeks: testified “that “they never possessed ot delivered

- enyelopes at-the request of defendants-and ‘that those of

the-defendants who had been in their service station. from

time to time were there to have their cars serviced. Fed-

erenko, Varlas, Kokas ande Nicholas Kokenas (the owner

of the, MGM Lounge) t@stified in such manner as to place”

in ‘dispute the veracity of certain meetings and other mat-.

texs related by Bombacino.. Peter Loquercio testified that |.

Iris “childhood. friend, Joseph Ferriola, had acquired his

nicknames of *!Joe Nick’? and ‘ ‘Joe Negal”’ as a child by

the- common practice in the Itatian community of dis-

tingyishing boys whose first names were identical by add-

‘ing the child’s father’s first name (in this case. Negal or

‘*Nick’’) as a suffix to the boy’s first name. Yolanda Bom-

tacino’s testimepy tended to establish that she was mar-

ried to Louis. Bombacino and that he bad deserted their

marital home wiany years ago withont the formality of a

divoree and had liecome 4 biz:imist, at best, or. an-adulterer.

* Defendant -Angelini offered testimony in his own defense.

His testimony avas directed to establishing the propositions

that he was neither a gambler nor, a conspirator to gamble;

that his business was a legitimate one, at best, or, at worst,

any illegality in it Was: an uidiscovered, legacy from a

deceased. partner ‘who. had started the business; and that. -,

he did not know Bombacino aid had never. participated™in =

any of ‘the conversations or meetings related by Bombacine. *

: . “ Saar ‘ p e rae

i ie eS

Defendants challenge the sufficiency of. t the evidenee to ;

- justify their convictions-imnder several. theories, They con-

; _tend that the testimony of Bombacjno was improperly ad--

mitted and that, without his testimony, there’ Was ne evi-

re ; ; |

- App. 12° - tia he oe

dence saflicieyt to convjct them; that, even if Bombacine’s

testimony was properly admitted, there was insufficient

evidence. to. convict; that,-if there was<videnee-sufficiést

‘to establish their ntembership in a conspiracy with regard

to gambking, there was insufficient evidence that the scope |

of. the conspiracy included any anti-federal intent ; and __

that the evidence’ established’ multiple “conspiracies; some

inherently local in nature, without establishing that -any

given defendant was a member of any anti-federal con-

spiracy. We disagree.”

: Defendants’ argument that the testimony of- Bombicine

. Was inadmissible against thgm is éssentially three-pronged.

First, they assert that Botmbacino, as a Government in--

former, did not possess the requisite intent fo violate the

law ;.since he was hot a.éonspirator, therefore, theg-argue- -

that his testimony should not have.been admitted. This .

argument proceeds, hoavever, on a basic misapprehension. ~

oo the nature of Bombecino’s, tesfnony and of the co-

conspirators exception to the hearsay fule. The defendants’

argument would be valid if Bombacino had related extra-

- judicial statements made by him ‘out of. the -presence_of

the defendants which’ were -effered to prove the truth of

_the matiers thereby asserted by ombacino. Unjted Sfqtes-

v. Morello, 250 F.2d 631, 634 (2d Vin. 1957J. Bui that was’

not:the situation here, Bdémbacino’s testimony was not a

; restatement of his own prior statements offered as tending

“.to prove the truth of his assértions, but rather his jesti-

mony was that ecerfain of the defendants- had said and:

. done certain, things out of ‘Gourt arid out of the presence

‘of other. defendants. Bombacino’s testimonial role, thus,”

was identical, to that of a recording deviee—-hearing Snd

seeing certain events, recording them in his memory and

.then,-in effect, playing back the events throngh his testi-

moity as they had oceurred in his presence. Such extra-

i? “ :

. \ 4 4

: -" .

o* “ . “

s - * > |

App. 18

judicial conv ersations ‘with some defendants as had oe ——

~ eurred out of the 3 presence of other de fendants constituted '

hearsay, it is true., However, extra-judicial statements and

acis of co-conspirators occurring during’ a conspiracy. and

in. furtherance of ii have long been held to’ be eompetent.

evidence agaims* their partners jn erime tinder the ancient. a

~ ¢o-conspirators exception to the hearsay’ rule.’ Clune en ky 47: .

t*nited States, 139 U.S. 590, 593 (1895) ; Legan v. United ,

Stades, 144_US. 263, 308-09 (1892) ; United Siates v. Jones,

438 F.2d°461,. 466. (7th Cir. 1971). _Moreover: the district-_

_ Judge sernpulously instructed the j jury diring the presenta.

. tion of Bombacino’s testimony and at the close of the.trial-

_ with’ regard to the limited applicability of the ‘hearsay

evidence prior.to the jury's detethination that the exist-

ence of the conspiracy and: its membershjp had been

proved. United Siates v. Rizzo, 418 F.2d 71, 82 (7th ¢ ‘ir.

1969), cert. denied, 397 US. 967 (1970) : United States v._

‘ Hoffa, 349 F206 20, 41 (6th- Cir. 1965), af ‘d, 385, U.S. 293° a

* (1966). | a a

. ‘Secondly, deféadaats assert that adipitting Borgbacino’s

* testimony vielated the confrontation clause eof the sixth aE

amendment. However, in the. plurality opinion of Mr.

Justice Stewart in Dution v. Evans, 400 U:S. 74 (1970); -

it is-stated: ‘It seems apparent that she Sixth. Amend. - *..

* ment’s Confrontation Clause; and the evidentiary hearsay:

rule. {of exchisiofj stem from the same reots. But this - i Gok

“-4/ourt has never equated the two, and, we decline to do so as

now.’ 400 2.S. at SF Dutton held constitutional against . : >

‘a sixth amendment challenge ¢ state stafute.w hich allowed

‘the admission into evidence. of liearsay statements .of a

defendant's s ‘co-conspirators. made after the termination of .

the conspiracy but “during the’ pfost-conspiracy period | of

‘ concealment. Adhnittediy the federal go-conspirators ex-

ception - is narrower ‘than. the - Matute there in* questioti.

‘

™~

P 2 .

. 7 . .

; . ‘ : . % ed bal

. >

pampering grins erty

é . ;

i aie? i “App. 14 - : -*

Lutwakyv. United States, 3: 34 U S. 604 (1953) ; ‘Krule witeh

v. United States, 336 U.S, 440 (1949). But the sixth ame nd- -

thent’s confrontation clause -apphes. to the states through

the fourteenth amendment with no less vigor than is true

of its application to federal .proseeytions. See Ponter v.

Texas, 380 U.S. 400, 406 (1965).’ ‘The refusal to equate

the sixth amendment with the hearsay rule thus appligs

equally to fede ‘al_and state prosee sutions.” Similarly, in

California v. Green, 399 U .S: 149 (4970), the ¢ ‘ourt-stated :

While it may readily be coneeded that hearsay rules

and:the Confrentation Clause are: generally ‘designer

to protect similar. values, it ts quite a differént thing

to-suggest that the overlap is complete and that the

. - CoufrontationgClause is nothing more or less than a

‘ codification of the rules of hearsay. and their excep-

tiens as they existed historically at common law. Our

“decisions have never established stich a congruence?

. indeed, we have more than, oneé found a’ violation of

confrontation Values even though the statements in

issue were admitted under an arguably recognized

hearsay, exception. . . . The converse is equally true?

LC Bete H LES heewnee” evidence is admitted in violation of %.

loni-established hearsay rule does not lead to, the

automatie conélusion ‘that confrontation rights have

been denied. 399. US. at 155-56. te See

Defkadants’ Sabin unde or tHe confrontation clause of the

sixth amendment were not violated. :

Finally in this regard, Tetendants: argue. that it was

error io-admit the testimony of Bombacino as to extita-

judicial declarations and acts of. the defendants absent -

prior independent proof of the existence, scope and ‘inem-

bership of the conspiracy. It is axiomatic that such dee-

. jarations.and acts. of a co-conspirator may not be admitted

“dence establishing his participation in the conspiracy. F.g.

in evidence against a defendant absent independent evi-

Glasser v. United Siates, 313 U.S. 60, 74-75 (1942) ;-Oltman

’ ae .

App. 15

y. Miller, 407 F.2d 376, 378-79 (7th Cir. 1969) ; United

States v. Stadter, 336 F.2d 326, 329 (: dd Cir.: - 1964) ; “eT:

‘Logan v. United Siates , supra , at 144-0: Ss. “309. Defendants -.

‘proceed from, that w ell-éstablished principle to assert that

there was no’ such: indepe indent’ evidence here, or, in the

the theory that the deelarant’s Ss W ords or acts ‘constituted

an admission against interest, ¢.9., Opper. v, United. States;

alternative, that if there was. independent evidence: it was

insufficient to validate the adijission of Bombacina’s testi-

mony. These arguments miss the mark, for impticit 4 in both

is the assumption that all of Bombacino’s testimony is

admissible, if at all, under the “eo-comspirators exception

io the hearsay rule. Even-a casual! reading of the record,

-however, reveals that much of Banibacino’s testimony re: -

lated éxtra-judicial admissions by w ord or act of a defen-

dant wliich were properly admissible against that defen--

dant. Although courts, have admitted. snch ‘evidence ™ “on

348 U.S. 84, 89-90. (1954), the better view is that such

admissions are not hearsay at all and are admissible ‘absent

other. reasons for exelusion. £.g.; C. McCormick, Haxpsock

oF THE Law or Ev IDENCE § 239 (1954) ; 4 J. Wicmorz, A *

TREATISE ON. THE ANG roNarenicas’ SysSTeM OF EVIDENCE IN

“‘Triats at Commoy Law § 1048 (1940) ¥ Stranorn, A Re-

consideration of the Hearsay Rule and Adisisnians. 85 U.

Pa..L. Rev. 484, 488-93-(1937). “As evidence; independent

of the hearsay statement of a cp- -conspirator, such admis-.

sion Thay quite property. coustitute corroborative evidence

sufficient to justify the admission of a co- conspirator’ :

“hearsay dectaration. - * - nea es z. aE

Such independent, ‘non-hearsay: pleaatana were. -abun-.

-dant im this éase, Jack Cerone.was implicated as a con-

spirator by his ‘actions at Bombacino’ S~.initial meeting

with him on, December 28, 1966, when he told Bombacino

that ‘he had AAS nothing but favorable reports about -

’

—

Wee ugte-<

885: U8. 928 (1966). -

——

; : se 16 gee Races

- o = -

hii. Jamies Cerone was et to be s a conspirator by his.

meeting? with Jack: Cerone and Bombacino on Deeember

. 29, 1966, at which time he told Bombacino the nie ‘thodology

of-taking the ‘‘Goldblatt’’ “bets soon after. Jack crore

liad told’ Bontbacine he would be servicing sote additional ;

big bettors. Ferriola was connected with thes conspiracy

’ by his actions at Bombaeing’ s initial contact with the con

spiracy at the meeting on June 25, 1965,. when Ferriola

‘stated, “You go to work for Frank [ Aureli], but be’ eare-

ful. There are a lot of -G heat on the street.” Angelini

was identified as a conspirator by his exercise of command |

au hority at the meeting on July 2, 1965, when he ordered

Angelo Kokas to eail, in..all bets of, $50 or more to Aung

Cortina also made clear hisjinvolvement in the conspirggy

when he told Borabacino -" e in July of 1966 that Aureli

was being viven a ‘*vace atioy”” because of his several recent

-gainbling arrests and then assigned Bonibacino to taking

‘‘the out-of- town action’’ at his apartinent. There was thus

ample independent: evidence that- each of the defendants

Was a participant in a conspiracy involving alleged’ gam- |

bling. Accordiagly;. the statements and atts of ‘each. de-

fendant wese. admissible * against all defendants. United

States ¥. Hickey, 360 F.2d 127, 140 ) (7th Cir) cert, wie

~ by = - - . > - -

As for defendants’ contention that the evidenee against

them was inswfficient to justify their’ comvictions, we have

no doubt that the record before us discloses sufficient evie.

‘dance. ‘from whith the -jury- ceuld pgoperly. have .deter--

minéd that there was one conspiracy as‘chargeél in Count

One of the dindictment, that all of the defendants were

members of such conSpiracy, that. the scope of the eon-

spiraty included the jurisdictionally necessary anti-federal

-_ element of conspiring to use facilities in interstate com-°

_ merce, atk ~~ at least one overt act in furtherance:

ee App. 17 -

of thie conspiracy octurred sitbsequent to its: inception

and during the period co¢ ered by the indictment. A review

‘of the evidence teveals that the conspiracy was charac-

terized by, a clearly defined hierarchy in which Bombacino

-was at, or near, the bottom and subject to the orders of

all the defendants. From such a. vantage point, Bomba-

cine’s ability to observe tlie yor ' the conspiracy

“was restrictedy- ‘but, due to the apparent trust placed in —

‘-him/as a rising inion or, perhaps, to san. overabundance

of confidence, th defendants, readily revealed their respec-.

‘tive positions in the conspiracy, as well as. its. scope, to

‘Bembacino by their.wards and deals. From the evidence

adduced at trial, we are satisfied hat. jury. coulsl

. properly,. have determined that thé defe Jants’ guilt was

- established bey ond a reasonable doubt. | z

- Defendayts contend furthers how éver, that ‘pr oof of spe-

cific knowledge : of the use of facilities in interstate com-

_-merce is-essential to a conviction for conspiring to vio="

late 18 U.S.C. § 1952 and that there -was no proof of -

~ sueh knowledge as. to any. of them adduced at trial. The

_ Government asserts, on the other hand, that proof ‘of

specific knowledge -of the use of facilities in “interstate

. commeree is not essential to a eonwiction for conspiracy

tof violate section 1952, citing United States v. Hanan,

42 F.2d, 101 (8th Cir. (1970), cert. denied, 402 U.S. 952

(1 71), and United States v.- Roselli, : 3482 F.2d “S79 (Sth. -

. Cir, 19704, cert, denied, 401 US.- ‘924. (1971), which

Squarely held such proof is hot required. However, we .

need’ not decide whether the Hanon- Roselli rule should:

record contains ample proof of the knowledge of each of:

the defendants - that the use of facilities in interstate ~

commerée was included within the*s¢ope of the. conspiracy:

evidence, as: it did, that all defendants had conspired.

«to use such facilities for iflegal gambling, Ss

¢/.

”

> E a

‘ . ~~ . .

é : “

Te seer eae i

"App. 18

The proof in-this case.estabtished- that Bombacino, as

thes underling he was, was moved*from place to, place

several times and was subjected’ to changes of duties

“at. the whim of the: defendant. The evidence adduced ~

clearly ‘proves ‘that’ Bombacino was subject to the. orders

of each of the defendants, ani,, moreover, Was, ‘paid the:

same. amount’ from the’ sanie source regardless ot

or the identity of his’ apparent eed The evident

is also unequivocal that shortly‘arter Bombacino was re-> ..

ceived asa co-conspirator he began to rapeive. tefephone

ealls from out-of-state: bettors w ithout any evidence whut-

ever that’ he had solicited such business in any way. And:

-it 1s also clear that Bombacino continued to receive such

ouit- of-state telephone alls without interruption regardless

of changes , in the naturé of -his dtities, the loeation of

hiss place of: business, the identity of- hig apparent superi-

ors; and even withe uit-regard for ‘chang in his te ‘lephone

ntiimbers on little advance notice, all. Without eviderice :

of Bomb: ing’ ’s having communicated Such changes 46 out- ,

. of-state bettors. Given suc h évidence and in light of other

competent evidence of the hierarchal nature” of* the con

spiracy and the constant exchange of infyfination among

the. -éonspirators, we believe “the jury, was entitled to

conclude :that out-of-state’ telephone calls: from bettors

_wert.induced by the defe ndants.originally and that changes

-in Bombacino’s scope of. operation,. his’ location and ‘his:

tele ‘phoné numbers avere ty ansmitted to,out-of- state bettors

by the defendants ° or by others’ at their direction. . Con--

sequently, we ‘ conelude. that ‘there was: ample evidence °

that all of the defendants. were aware of the anti-federa]

: a; oy ae

element of the conspiracy and participated | in it.

Defendants’ additional argument that multiple eorispira-

ciés W ere proved ander Count One’ ies predicated upon the

: Apply, he, Ee my fe

unlikely Nees that él fime Bombacizo’s d ties gr locus tt

»of operation changed a new conspiracy was reyealed, The

‘vidence belies that theory, especially. the evidence: that

‘Bombiacino’s s compensation camiined the same despite such

: changes, anc we reject that ar gument as w ell.’ .

Thus we are- satisfied that the evidence aiitaned at frial,.

viewed in the light- most fav orable to the Government, am-

’ ply:. stipports ‘the jury’s verdict that all: of the ton

_-dants w ere guilty as chargest in’ Count One of the indict- aie

Anent. Se pe Bre . .

. : ‘ . ms ; 2 ak TI. 3

" Defendant Angelini : argues ‘that 18 US. C: §-19 52 is un-

constitutional as violative - of the first, sixth and ‘ninth

amendments:to the Constitution, as well as. attacking its -

_ applieation to him. as constituting an ex post’ facto law

forbidden, by artiele one,. section nine, clause three of

the Constitution. We hold that each of these. contentions

a Se . >

Angelini’s first amendment argument. is, in -essence,.

that, since newspapers and other media frequently .report

predictions as to the outcomes of various athletic events—

indeed, some-of. which dye similar to or based. upop. An- ._

‘- gelini’s computation of odds and point spreads—andr suéh*’

‘communication is protected by the first amendment, ‘An- |

‘gélini’s telephonic communication ‘of such information is |

similarly protected. .We rej@cted, such an assertion in. i

United States v faookretis, 385 F.2d 487, 489 (7th Cm.

1967), vacated on other grounds, 390 U.S. 338 (1968), and

* we again reject it. Angelini’s first atnendment claim etr-" .’ :

roneously proceed on the impliit assumption that the

known use and purpose of communication is not relevant ’

- to. the determination of whether the communication may *

_ be prohibited consistent with the first amendment. It is:- - Pe

clear. that speech or Aonduet ordinarily protected by the °

ne ea eee

ra ;

unnidenieeschentll cals hicntcetmitiateibintiaraitaren

“

Constitution may lose that protection because of the intent

~ of the Speaker or actor or the context within which it

occurs.” E.g., Ginzburg. v. United States, 383 US. 463

(1966). The tomiiunication of opinions as to the outcome

of future athletie contests may not threaten valid. eomi-

munity ‘interests in other contexts, but such communica- |

tion clearly threatens legitimate community interests when

it occurs as a part of an illegal gambling operation cross- .

‘ing state boundaries. 7 :

: Angelini’ s assertion. that sections 1952 vielebes the sixth -

amendment in that it is so vague that persons: of common

understanding are not adequately advised of what it is

’ that is proscribed similarly lacks merit. In United States

vw: Zizzo, 338 F.2d 577, 579 (7th Cir. 1964), cert. denied,

081 U.S. 915 (1965), we squarely held that section 1952

was constitutional against a challenge on the ground that’

it was vague. We reaffirm that holding. ;

As a further ground for his assertion that section 1952

is unconstitutional, Angeliril argues that the statute ‘‘en-—

-larg[es] a state statute in violation of the’ ninth: amend-

ment.’’’ The gist of this argument is that section 1952 .

was meant’ to aid the states in the enforcement: of their

_ criminal statutes where facilities in interstate commerce.”

‘were used in the violation of such statutes} that the:

statute the enforcement of which is here sep aided, °

Iilinois Revised Statutes, Chapter 38, Section) 28-1 (a),

is subject o a statute of limitations of sighitedn montlis;

and that section 1952 incorporates the statute of lini-

‘tations of state statute it is aiding. Ergo, Angeiini-

argues, since this presecution was not commenced within

the eighteen month limitati period, the convictions must

be reversed. However, as Mr. Justice Clark, sitting. on -

this court, stated in United States v. Karigiannis, 430 F.

| ad ‘148, i ee Cir.), ont, denied, 400 US: 904 (1970) :

3 by App. 21

. [T]he ‘gravamen of a charge under § 1952 is the

Violation of federal law and ‘‘reference to state law

js*necessary only to identify the type of unlawful.

activity-in which the defendants intended to engage.”’

[Citing United States’ . Rizzo, 418 F.2d 71, 74 (7th

Cir. 1969), cert. denied, 397 U.S. 967 (1970).]

Thus the fact that’ the illegal activity in furtherance ‘of

which facilities in interstate commerce were used: could

not be prosecuted under state law- because of’ Thinois’

18 U.S.C. § 1952. Indeed, as we held. in United States v.

Rizzo, 418 F.2d 71, 80 (7th Cir: 1969), cert. denied, 397

U.S. 967 (1970), proof of the violation of the state statute

to which reference is made for purposes of prosecution

under 18 U.S.C. § 1952 is not-an essential element to be

ig proved in ‘such a‘ federal prosecution. State law thus

serves merely a definitional purpose under. section 1952.

That being the case, seetion 1952 does not enlarge state

criminal statutes at all because it punishes the use of

facilities in interstate commerce ‘in furtherance of enter-

prises violative of state statutes: it: does not punish sub-

stantive violations: of the state. rtatutes per se. Section

1952, therefore, does not ‘‘enlarge a state statute in viola- |

tion of the ninth amendment”? as contended by Angélini.

Angelini* s.final attack on the constitutionality of section

1952 is the assertion that it constitutes an éx post. facto

law violative of artitle one, section nine, clausé three of

_the Constitution.. The theory of this argument is’ that

section 1952 on its’ face proscribes the use of interstate

facilities in any form jn furtherance of gambling, thereby

rendering it violative of-the first amendment by Angelini’s

lights; that the statute was not narrowed to constitution-

ally permissible scope until Angelini.v. Illinois Bell Tel..

Co., 418 F.2d 111 dass Cir. 1969), cert. denied, 397 US.

ae AW py ete eh ee Ae ee. a a eae are

App.’22 5

- 1040 -(1970), limited its application to rapid transmission»

. of gambling information ; and that such limitation did not

‘occur until after the conduct which gave rise to this

prosecution had occurred. Taking Angelini’s argument at

face value,-we-do not find the limiting construction of

section 1952 to be an unreasonable interpretation of the

. statute which, if such were the case, might provide an ‘

arguable basis for his ex post facto law assertion. Williams

v. United States, 179 F.2d 644, 647 (Sth Cir. 1950). 18 —

U.S.C. § 1952. does not’ constitute an ex post facto law as

applied here.

Defendants also assert that certain ane we or trial

. errors require the reversal of—their—convietions——Thexs-————

-. argue that the district court should have ordered produe-°

tion of ‘the minutes of the grand jury which led to an

indictment which was subsequently superseded by a second

indictment upon which this trial proceeded ; that the dis-

‘trict court improperly limited defendants’ ‘discovery of

certain evidence of electronic eavesdropping; that the dis-

trict court erred in admitting certain testimony” of the

United States Attorney;. that the prosecutor’s conduct, ~

especially i in final argument, was improper and prejudicial,

and that such defects were uncured before verdict; that

the trials of these defendants should have heen separate

for one or more reasons;‘that the divulgence of certain

telephone toll call records to the Governthent violated 47

‘U.S.C. § 605; and that the seizure and introduction into_

evidence of certain anopened mail discovered in Angelini’s ~

office: was impraper. We find each of these arguments to

be without merit.

Production of the minutes of the proceedings of the .

“rand jury which returned the original indictment .in this.

ex se was not necessary, nor, we believe, would it have been

helpful to the defendants. Grand jury. minutes are not

App. 23

available as of course to defendants in federal criminal

trials, but rather may- be miade available in the exercise

of the trial court’s discretion when the defense has shown

that-‘‘ ‘a particularized need’ exists for the minutes which

outweighs ‘the policy of secrecy [of the grand jury’s

_ proceedings ].”’ Pittsburgh Plate Glass Co. v. United States, ;

360 U.S: 395, 399-400 (1959). Here, the initial indictment: -

was based upon the testimony of ‘an agent of the FBI

who testified as .to the contents of Bombacino’s reports

to that agency. Bombacino himself did not testify at all

-at the first grand jury proceeding which related to this

cause. Although .the first indictnient named only Jack

Cerone, Aureli and Angelini as defendants and the super-

seding indietment -added-James Cerone and Ferriole as

additional defendants, that disparity does not supply the

‘‘particularized need’? showing required by Pittsburgh

Plate Glass Co. The agent’s testimony which led to the

first indictment was’ based on Bombacino’s statements to

various FBI agents, copies of all of which statements were

* given to defendants in the course of the trial. The minutes

of the first grand jury proceeding thus could not _he useful -

the defendants had at their disposal the best evidence of

what was the basis of the charges against them under |

both indictments. In. addition, the trial court compelled tie

production of the minutes of the second grand jury pro- -

ceedings. Defendants were not entitled to more.

Ferriola contends that the disclosure of electronic éaves-

dropping required by the distriét court was insufficient

and prejudiced his ability to eliminate illegally obtained

evidence from the. trial. That contention is groundless.

The Government provided Ferriola with copies of ‘‘logs’’

of all illegalty overheard conversations in which he was

identified: as‘a participant. It was also established that

\ App. 24

| nothing ‘illegally overheard as revealed in such logs was

‘relevant to this trial; and, in addition, the district court

examined in camera.a voluminous sheaf of logs cortain-

ing reports of unidentified voices overheard and found that

none of such logs was relevant to this trial. Indeed, it was

* established that ‘Cevery time there was a possibility?’ i in the -

view of the: overhearing agent that. Ferriola was present

at an illegally overheard conversation the fact was re- .

-eorded, and logs of all such occasions were made available

to him. Mereover, Ferriola made no showing of his stand-

_ ing to object to any illegally overheard-eonversations. other

__.__--than those as to which logs were provided him. The trial

court thus committed no error in its management of. Fer-

riola’s discovery of evidence obtained by illegal eaves-

dropping.

‘Defendants also assert that the district court erred in -

admitting, the testimony of the then United States At-

_ torney, was not _personally prosecuting this case. ‘They ’

__—argue that the pr presence of. the United States Attorney

as a witness for the prosecution was prejudicial because '

of the prestige of his office; that his testimony was not’

properly admitted as rebuttal testimony to controvert the

testimony of defendants’ witness Kokenas;.and that, while

the fact-of his testifying was itself prejudicial, his testi-

mony that Kokenas: expressed fear of ‘‘those fellows”

was unduly prejudicial, and its admission served no legiti- |

‘mate purpose. ‘As to the aw esome- office theory, we do not

agree that the’ mere fact that a witness holds an office, of

publie trust should disqualify him as a witness if he would

otherwise be able to offer relevant, competent and material

evidence as to any issue in atrial. Defendants offered

Kokenas as a witness: apparently to create the impression .

-in the jurors’ minds that the prosecutors. had withheld from

the grand jury and defensé counsel evidence favorable to

defendants.’ On direct examination, Kokenas, who owned

DRE BGS ae

\ “3

"App. 25

the MGM Snciene testified that Ferriola never baal anyone

or ate in the Lounge but sometimes came in to pick up |

carry-out food, thus contradicting the Government’s evi-.

dence of the meeting held there on June 26, 1965. He also’

_ testified that he had told the Government the: same thing. _

when they questioned him and that a meeting with the ~

United: States Attorney ‘in, the- offices. of his former” law .

firm had not been suggested by him in any way. The -

“United ‘States Attorney testified in rebuttal that Kokenas

~ had ‘said that he had seer Ferriola, Turk Turello, ‘Angelo

Kokas dnd Aureli. together in the Lounge | at tithes, but

didn’t know if they > were. there on June‘26, 1965. He also.

testified that Kokenas had said that he couldn’t talk to |

anyone in the federal building, stating, “T can’t talk to you

_here.-. Those fellows can’t know-that I am. talking to you.’?

' He testified. that Koketias had said he was willing to talk

i to him in some place other than the- federal building. It is

clear, therefore, that there was direct contradiction between

’ Kokenas’ testimony and that of the Uhited States Attorney. :

_,it is also clear that evidence of his fear may be presented .

BS a means of demonstrating a witness® bias, thereby tend- —

mg to: diseredit him. United States vs DeLutro, 435 F.2d

- 255, 256- 57 (2d Cir. 1970) ; United St tes v. Schennault, 429

F2d 852, 855 (7th Cir. 1970). As for. defendants’ argument .

that they were’ prejudiced by the failure of thé United

. States Attorney to identify which, if any, of the defendants

Kokenas was:afraid of, we conclude that. defendants waived”

that issue by failing either: to cross- -examine the United

’ States Attorney or: to eall Kokenas in surrebuttal on that esas

point. United States v, Cook, 432 F.2d 1093, 1101-02 (7th

Cir. 1970), cert. denied, 401 US. 996 (1971).

Defendants further claim that the conduct of the prose-:

_ cutors was prejudicial, both during the trial-in-chief and

during the Government’s closing. argument. Defendants

cee Sie i ie.

a - + App. 26 2

it sev and incidents of allegedly sihiailaial conduct as

being sufficiently damning as ‘to require reversal. Having

carefully reviewed the entire record of this trial, however,

‘we do not believe that any such incident or. series of

incidents cited by defendants deprived them of-a fair trial.

It is true that in the heat of trial the. prosecutors made

occasional - rash statements which were to some degree

improper. How ever, the district judge rectified such ‘prob-

lems. by appr opriate admonitions to cotinsel and the jury,

- and the offending prosecutor apologized, Sua sponte and

in the presence of the jury, to the’ court and counsel for

one such inappropr iaté comment. As J udge Learned Hand °

stated in United States v. Weealer, 79 F.2d 526, 529-30 (2d _

Cir. 1935), cert. denied; 297 US. 703 (1936): - m

It is impossible to expéct. that a criminal trial shall —

be conductéd without-some show of. feeling; the stakes

are high, and ‘the participants are inevitably charged

-with emotion. Courts make no such “demand; - they

recognize’ that a jury inevitably: catches this mood -.

an¢that the truth is not likely to emerge, if the prose- .

_ eution is confined to such detached exposition as would

*-be appropriate in a lecture, while the defense is al-_

lowed those appeals in misericordiam which long cus- _

tom has.come to sanction. The question is always as

to the particular incident — im the oe =

the whole trial.

We hold that the prosecutors’ conduct, ‘in the context of

the whole trial- and in view of the district judge’s serupu-

-lous policing of arguable improprieties, was not prejudicial.

Witendanke also assert as error the failure of the district

court to sever the trial of each defendant. It is well estab-

lished that &, district court’s denial of motions for sever- |

ance may constitute reversible error - “only if prejudice is

so clearly shown. that refusal of _ severance is ‘an abuse

of discretion.” United States eat\rel. ‘Durso v. Pate, 426

ec Ct p

App. 27

| F2d 1083, 1089 (7th Cir. 1970), cert. denied, 400 US. 995 |

( 1971). N ° such showing of. prejudice has been made here.

“Angelini: argues that the disclosure to the FBI by the

telephone.company, of its toll call records: ‘with regard

to telephones ‘listed to Bombaciio, Sammy Molose, Model. ~

Construction Company (a fictitious company in whose ~

name the telep one was answered at the 6955 West Grand

Avenue book) and Frank A. DeSoto (Aureli’s alias atthe

4355 South Sawyer book) violates 47 U.S.C. § 605. He

. makes the same argument with regard to the disclosure to

the FBI: ‘by the management of the. Washington Pines

Hotel, one of Aureli’s residences, of similar records. with

regard’ to. the telephone in Aureli’ s room. Assuming that

Angelini has standing to interpose. this objection, we agree

with the detevthination of the Second Circuit in United

States v. Covello, 410 F.2d 536, 541-42 (2d Cir.), cert. —

denied, 396 U.S. 879 (1969), that such records made and

maintained inthe ordinary, equrse of business for account- -

ing purposes are properly th be accorded the same evi-

dentiary treatment as the r

are without the scope of s

ords of other businesses and

tion 605. Such disclosure as

occurred here did ‘not en 47 US. Cc. §. 605.

Angelini also’ contends that” the. seizure. of certain -.

opened mail discovered ‘in, his. office upon the execution °

of valid search warrants was illegal. He also contends

that the opening of one such envelope addressed to John

DiDomenico in care of Angtlini’s firm and the introduction

into evidence of the envelope itself was improper: We

determined that the search and seizure was-proper-in

Angelini v. Illinois Bell, Tel. Co., 418 F.2d 111, 115 .(7th

Cir. 1969), cert. denied, 397 U.S. 1040 (1970), when Ange-:

lini’€ counsel specifically raised the issue of the propriety |

of the seizure of a number of items, nee the unopengd

-= .

App..28 Roce ee:

mail. Angelini cites no convini¢ing reason to disturb that -

determination, and we shall not-do so. His contention

with regard to the opening . of the DiDomenico’ letter ‘is |

vague and unpersuasive, especially in -view: of the fact :

that the contents of the envelope - ‘were not offered in.

evidence. We find no error. ee ae ‘

Finally, Angelini raises several challenges which relate. .

‘only ,to the validity of his. convictions. He. asserts that °

Count Three of the indictment was insufficient to charge

to convict him on: that count; that it was improper "ee

permit -the use in this ease of his: testimony in .a prior

civil proceeding. to compel the Government to have his

telephone service reinstated after it had been terminated

pursuant to 18 U.S.C. § 1048(d) ; and that the Govern/

ment’s trying him on Cotnt Three after having terminatéd,

his telephone service pursuant to 18 U. S.C. § oe sub-

jected him to double jeopardy.

Angelini’s argument that Count Three of the siidlisianeiit :

is inadequate ‘to charge to offense ‘is without merit. He

bases his argument on: the theory that an indictment charg-

ing a substantive: violation of 18 U:S.C. § 1952 must recite °

' the particulars of the use of the interstate facility ‘charged.

- The indictment recited all of the necessary elements of the. .

offense. See Turf Center, Inc. v. United States; 325 F.2d. .

793,. 796 (9th Cir, 1963). It did omit the opposite -pole.of |

the use of an interstate facility, stating only that the

- United States: mail was used ‘‘in interstate commerce’’

‘Cat Chicago, ‘THinois’’ on or about a certain date. How-

ever, the question of the location of the other terminal of :

the use is’ in the nature of evidentiary matter. to be ‘dis-

| App. 29°

covered. by a ‘motion for a bill. of particulars. Carbo v.

.. United. States, 314 F.2d 718, 731-33: (9th* Cir. 1963), cert. ,

> denied, 377 US. 953 (1964). The additional information

desired by Angelini was supplied by the Government in

its bill of partichlars provided pufsuant’to his motion. We:

hold that Count Three of the indictment. was sufficient’ to

charge an ‘offense ‘under 18 U.S.C. § 1952.

Angelini? s challenge ‘ ‘to the sufficiency | of the. emus

_ to convict. him on Count Three is’ based chiefly on two

theories: that, since the use of. the mails was an out- of-

state customer’s mailing a. payment to him, he did. not use |

- the-mais and that there is no evidence negating the pos-"

- sibility that the payment to Angelini was for printed sched-

ules, sold to the general public and not for providing the

line. There was evidence before the’ jury. that the-customer

} had#pajd Angelini $390 for a football. Season’s service and -

that the printed publication Angelini distributed cost $.25

per copy. per nveek, There was no evidence that. the: cus-

‘ tomer subscribed to more. than one copy per week: indeed

* the evidence was that: he subscribed for his personal use-

_ alone. We: believe the jur¥ was. entitled: to infer -arith- .

‘metically -that mich of the $350 fee was for the line: pro-. °

vided by Angelini, especially in view ofthe ‘fact that the

evidence established that: the ‘customér called Angelini as

frequently.as a dozen times a week. Therefore, even if we:

assume that Angelipes” printed materials were not pro-

‘hibited from interstate distribution, the evidenee was suf-

ficient to establish that Angelini made. use of the. mails

to distribute the line to his: out-of-state. customer who. also

‘made use of ° the ails in paying for ,Angelini’s services, :

The evidence of ghilt under Coun ‘Three was adequate.

The contention is also mefitlese that introduction in

. 2 % | |

‘a .

‘

* Oya ahaa eng oO purr euro

App. bad

. filed to restate his telephone service forminated pursu-

ant to 18° U.S.C. ‘§ 1084(d) violated his fifth amendment

privilege against self-incrimination. As clearly held in

— Pelephdne News Sys., Inc. v. Illinois Bell Tel. Co., 220

_ “F.Supp. 621,°628 (N.D. Ill. 1963) (three-judge court),

aff’d mem., 376 U.S. 782 (1964), the Government has ‘the

burden of proving thé-propriety of ‘termination in a suit |

brought to compel the reinstatement of telephone service

terminated -purstiant to section 1084(d). As the court

there said regarding such actions, ‘‘[P]laintiff-is at no.

point required to come forward with evidence, mucli-Jess _

testimony, until defendant has satisfied this burden. Even

then, a plaintiff is not required to take the stand or inerimi+

. nate himself.’ In Angelini’s civ il suit for restoration: of:

his telephone service, he was called as an adverse witness

by the Government pursuant to Rule 43(d) of the Federal

Rules of Civil Procegayre. Upon objection by Angelini’s

counsel, the Gov ernm nt attorney corfectly stated to Ange-

lini that his fifth amenYment privilege was available to him.

Angelini did not assert.his privilege and testified both as

an adverse witness on behalf of the Government and as a

rebuttal witness on his own behalf. Angelini thus waived

his fifth amendment privilege without compulsion by the

vernment sine as is stated above, it was the Govern-

ment, not Angelini, who had the burden of proof in the

section 1084(d)y suit. . *

Angelini algo argues that termination of telephone serv-

-jce pursuant to 18 U.S.C. § 1084(d) followed by@prosecution

for violation of 18 U.S.C. § 1952 arising out’ of the same

conduct . violates the prohibition against donble jeopardy

under the fifth amendment. However, as_the Supreme

.f "App. 31 3 .

Court said in Hoelooring v. Mitchell, 303 sae 391, 399 |

(1938) : —— Sos |

C ongress may impose both a criminal and a civil sane-

tion in respect-to the same act or omission: for the

double jeopardy clause prohibits merely punishing _ -- |

. twice, or attempting a second time to ‘punish criminally, ‘= |

- for the same offense. The question for decision is thus -

whether [the statute there’ -in question | imposes. a “_

criminal sanction. _That question is one of statutory

ae construction. ;

(itor the question hentin becomes whether 18 U.S.C.

1084(d) imposes a criminal sanction. It i is clearly estab-

lished that section 1084(d) is nonpenal in ‘intent and does

not impose criminal sanctions, T elephone News Sys., Inc.

v., Illinois Bell Tel. Co., supra,- 220. F.Supp. at 628-33.

Angelini has not’ been subjected to double’ jeopardy for

the same offense. “+

—

The judgments of \ distri cot are affirmed. |

ed ee ak, ee

/ e

"App. 32 pile » ay Se

| APPENDIX “B” 2 -

UNITED STATES Cou RT OF APPEALS

For the Seventh Circuit

Chicago, Llinois 60604

‘September ; oe,

. Before

‘Hox. Lurner M. Swycerr, Chief Judge

Hon. Joun Pav. Srevens, Circuit Judge

How. Rosrer A. ee Circuit Judge

UNITED STATES OF AMERICA,

: Plaintiff-Appellee,

No. 19551, 18555, vs. . | ;

18622, 186355 , .

- JAMES CERONE,; JOHN PHILIP CERONE, SR.,

JOSEPH FERRIOLA, DONALD J. ANGELINT, and

— DC )MINIC CORTINA,

Defendants. A opdilente.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

This cause came on to be heard on-the transéript of the

record from the United States District Court for the North- .

ert District of Illinois, Eastern Division, and was argued

by counsel.

On cansideration whereof, it is orde and adjudged

by thisourt that the judgments of the said Dh

in this cause appealed from. be, and the same are

AFFIRMED,QJn atcordance with the ee of this Court

- filed is day. |

}

: -

App. 33

APPEN DIX “or

UNITED STATES COURT OF APPEALS

ry For the Seventh Circuit

‘Chicago, Illinois 60604

——

Tuesday, November 9, 1971

Before

* Hon: Lurner M: Swycerr, Chief idles

Hon: Joun Pavt Stevens, Circwit Judge

Hon. Rosert A. Sprecuer, Circuit Judge |

UNITED STATES OF AMERICA, °,

ae ee Plaintiff-Appellee,

No. 18622 ‘VB. .

DONALD J. ANGELINI, be

| Defendant-Appellant.

——_*

‘Appeal from the United States District Court for ‘the

Northern District of Illinois, Eastern Division

On consideration of the petition for rehearing and sug-

~ gestion that it be heard en bane filed in the above entitled

cause, no judge in active service having requested a vote

thereon, nor any judge voted to grant the Suggestion, and

a majority of the members of the panel having voted to

~~ a rehearing, *

IT IS ORDERED that the petition for a odieasiaa” in

the above entitled cause be and the same is hereby denied.

App. 34

APPENDIX “D”

GAnited States Court of Appeals

* the Seventh Circuit

Chicago, Illinois 60604

. 71, KENNETH J. CARRICK, Clerk of the United, States

Court of Appéals for the Seventh Cireuit, do hereby certify

2. Opinion Filed Se ptember 15, 1971 (in = 18551, a.

18622, & 18635) -

3. Judgment Entered Se -ptel mber 15,1971 (in-1855t, 18595,

48622, & 18635)

4. Appellant’s Petition For Rehearing En. Bane And

Petition For Rehearing Filed November 3, 1971;

(18622 only)

Order Entered November 9, 4971 Denying ippetiiat! s

Petition .For Rehearing En Bane & Petition For Re-

hearing.

‘Canse No. 18622

UNITED STATES OF AMERICA,

A ere Plaintiff-A ppellee,

Vs.

DONALD J. ee

‘ Defendant. Appellant.

_as the same remains upon the files and records of the

* United States Court of Appeals for the Seventh Cireuit.

IN TESTIMONY WHEREOF | hereunto subseribe

my name and affix the seal of said United States.

Court of Appeals for the Seventh Cireuit, at the

City of Chicago, this 24th day bes November

A.D. 1971.

William Hi. Pittman -

William H. Pittman -—

_€lerk of the United States Court of Appeals

for the Seventh Circuit. -

. .

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- -

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