# Petition for Writ of Certiorari — Cerone v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0410%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 964 ## Text Bo In the in| Supreme Court ofthe Mited States ‘Creme Tan, 1971. DONALD J. ANGELINI, . ot | -: : Petitioner, - = : : F E 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 m7 . . a . im . " 7 . a UNITED STATES LAW PRINTING (0., CHICAGO, ILLINOIS 60618 (312) 525-6581 : : aoe f. » een aa 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 eee COC ee i re Ne i i He Hie t i & ; i ) i i lt i i ; lg ' ‘} i . if i iy . i c | | ii : cal : 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 (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. ‘¢ 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. ° 8 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. ms I 20 -) 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. . id "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: ; a 66 - 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- i \ - 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 > 24 _ 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 . (7 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. - 26 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 ee 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- Gx 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 e 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.’? 7 ™ 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 ” as es 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 | 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 . > a, pampering grins erty é . ; ae 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 oe “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 - 2 ’ ' — Wee ugte- - - 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: be.followed in this circuit, for we are convinced that this © - 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: We believe the jury could properly have found from, the © : evidence, as: it did, that all defendants had conspired. «to use such facilities for iflegal gambling, Ss o it =| ¢/. ” 3G > 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 Ss 2 : 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 is without merit. © | ~ [peers os. 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 ° sy _@ 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) : + 7 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’ statute of limitations is irrelevant to a prosecution under © 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 - either for impeachment or cross-examination purposes, for ©. 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 x. 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 an offense and that, if it w ras; the evidence was insufficient © 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- a4 f @ 2 | 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 this trial of A gelini’s priox.stestimony in the suit he © . 2 % | | ‘a . ‘ a * Oya ahaa eng oO purr euro er a. 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, e . 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 that the foregoing —.1....... ._pages contain a true copy of © 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. - *- . . . « » . - - * - . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0410%3A1. Public record. Not legal advice.