Petition for Writ of Certiorari — Vuci v. United States

. 2 as : t . Prat’ = n \ ; . Sarl " a aunt hw Oo Sy Te aries: —

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UNITED ‘STATES OF ‘AMERICA — Se.) i.

« hin |

° & ‘ *

FRANK LEO VUCI and.

HENRY 4NTHONY Noto.

Pe et tech een ~ Petitioners |

—“ 4 | > 3 Petition for Writ of Certioraritoahe Unitéd States ~

? Court of. Appeals for the Fifth Circuit and the_

United States District. Court for the:

Eastern District of Leuldene

ee Baton Rouge Division

D’AMICO, CURET & BUSH °

_ ‘By: Sam J- D'Amico

a 610 Reymond Building

Baton Rouge, Louisiana 70801 —

Telephone :, 504-348-2273 ses _

Bryan E. Bush, Jr. eh . oe

610 Reymond Building ° “a

. Baton Rouge, Louisiane 70801

_’ Telephon®: 504- 348-2273

ae. Aftorneys for Petitioners

Eranklin “Press, Inc. ‘eye. Baton Rouge, La

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Citations to Opinions Below 1 Ns dined! Peril ctrecase-

Jurisdiction _ ..... he i ee ee ee ae “aecer

. Questions- Presented ..............0.c kgs Avumeal Sasa ee

| «Statutory Provisions Involved ........02.000..0000f cc Povo.

Statement 2.0.0.0. nesee Aes oe note Ao ars mS

Pr sie Ait tnee SRS IM AP trees AEG?

Conclusion ....... Cee Wnts ate ok BA oka. NI te Aon 6S

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Certificate of Service ne Sonal 4

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TABLE OF AUTHORITIES

° Cases ©

© Berger v. U:8., 295 US 7%, 55 Supt. mo... , . _ 19

Courtuey v. U. S., 390 Fed. OE ad a: a : ee 17

Direct Sales Ca. U. S., 319°US 703, 63 S.Ct. 1265 . ar 4b

= Gridécs 0. U. 8.379 F.2d 791. Se Sale Reh ee wevesssesesnsensease 16

- 2 Grosso v. U.S., 390 US 62; 88 Sup.Ct. 716 oases ce ‘

Haines ¥U. S:; 390-US 8%, 88 Sup.Ct. 72 .... sR eee 6

Hill v: Philpott, 445 Fed. 24 144 cocoon .. 22 /

King v. U. $., $4 Fed. 24 383 (DC) on eect

- edag'n: S:, 395 US 6, 89 Sup.Ct. 1532 .... oe Coens

- Marchetti v: U. s., 390 US 39, 88 Sup.Ct. 697 «co Bote

McNeely v. U. S, 353 F. 2d SS Peas eeraectaranene

Nolan v. U. S., 395 Fed. 24 283, 423 Fed, 72) 17

qui v. U.S. 91 Sup Ct. sight S nt eras 2s

Rutherford v. U. 8.264 Fed, 24 180 . pease ten 12

Serio v. U. 8. 377 Fed. 2d 936 $(196T occ Nee

South v. U. S., 368 Fed. 2d 202, 205, (Sth Cit, 1966) ane

Thomas v. U. 8, 376 Fed. 2d 564 (5th Cir),

tetoiesemttaxe 2 h Palssecaaeuers te dsietmree es

. ’

ii,

oe

Travis v.U. s., 364°US 631, 81 Sup.Ct. 358 Boats 11

UB. Comgton: 395 US 57, 89 sup. Ct. 1559 ...... : ee ca

U. 8. v. ( Gorman, 303 Fed. 3d Pe ene ie

U~S. v. Handinan, 447 F.2d 853 ..... an = ae chee : 19

U. 8.0. Harris, 331 Fed. 2d 600 (1964) ee ae

u. ee 225 Fed. 2d 751. ae eae ae

U.S. v. Jolinson, 323 us 973, 65 Sup.Ct. 249°... fe eo

U.S. v. Jones, 174 Fed. 2d 746 eet See ease

U. Sev. . Kearney, 420 Fed. 2d 17 (DC) ..... ease 21

U, S:v. Mendelt, 447 Fed. 24 689 toa a co 13

U. s. v. Rizzo, 418 Fed 2d 71 (7th nc Peden ee. Sk Hes 21

or SCt. 1041 ‘asm Cin te Ae : es one ayaa tay ae 17

U. 8. wv. Zizz0, 338 Fed. 2 517 (ith. CRD cB hee 16

Weaver v. U. 8., 298 Fed. 2d’ 496 - (Sth Cir. 1962) ° eStore Pe a

See ;

. ‘ ° _ 4

< 3 ;

ee ee a

«©. | OTHER AUTHORITIES 7

U.. S. Constitution Article 3: Section 2 Clatise 3 ........ eae 10

U.S. Constitution, Amendntent 4 ............. ne t otde ae

18 USC ee Nees ee a ra aoe

A, oh ee ee Te aa eters nee, oe 5

. +18 USC | 1952) |

ee Oe ee

ae \g USC 1961 vets ee Hee mae aS cs : oe

La. RS 14:90 eye oe ee eee

IN THE) - nom: gen

. SUPREME COURT OF THE UNITED STATES “

No.2 ‘ j 2 ah | a a bs : ‘|

_UNITED STATES OF -AMERICA __ |.

ara

/ versus” |

(7. RRANK LEO. VUCE and

+. °.. HENRY ANTHONY NOTO,’ ° ~ Cee Sa

: | a Petitioners Se:

We

pay Pétition for : Wait of Cestiorari to , the United States

. Court of Appeals for the Fifth ‘Circuit and the 7 :

United States District.Court for the: | |, ° | |

y° Eastern District of Leuisiant se hs

Baton Rouge Division —

May it rsoaee the Court:

Petitioners pray; . that a Wiit of: Certiorari issue to re-

“view the judgment of the United States Court of Appeals for

1 the Fifth Circuit, rendered on the 30th. day of November,

1971, in United Statés of America versus Frank Leo: Vuci ©

and Henry. Anthony , N6to,- Number nii229 on the Docket 2a

a = saifl court and - the reftisal of: petitioners’ “applicagjon for .

a. ‘ ‘rehearing an entry of said judgment on the 27th day - of *. ie

December, 1971, affir ing the decision of the United States

en ae th +", as -

A

Ne

ae - :

District Court of the. Eastern District of Louisiana, Baton

Rouge Division, Criminal Number 1871 ort the Docket of said

a court, Tye ‘decision of the United States Court of Appeals ©.

for the Fifth Circuit is not reported at this.time but said.

decision is appended hereto. Petitioners filed a petition for

a Stay of Mandate with the Court of Appeals for the Fifth

Circuit onethe 29th day of December, 1971 and said court

ordered the Mandate be stayed pending application for Writ

of Certiorari 40-this Honorable Court on or before the 26th

day of January, 1972.

| ‘JURISDICTION an

" Jurisdiction of this Court, is invoked under 28 USC 1254

_ (1) and 28 USC 165\ (a), petitioners requesting a review

of a ‘decision ofthe — States Court of — for the

Fifth Circuit. ,

QUESTIONS PRESENTED

*

I. Should a Judgment of Acquittal be granted where the

_ Government does not prove that the alleged crime oc-

_~ eyrredl within the jurisdiction of the Trial Court?

IJ. A. Should & Trial Court permit the Goverfynent to

introduce into evidence, corporate income tax re-

jurns, against an individual defendant where the

e Government fails to prove that. the defendant was

an officer, agent, employee or stockholder nef said

ree '

; . |

B. Should a new trial be granted Where, over defen-

dants’ objections, the Trial Court allows corporate —

“= Il.

2

iow

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ae saat “ 3

. income tax returns to be introduced into evidence,

when said income tax returns viewed together with

the Government's charts and estimates previously

introduced into evidence was an attempt -by- the.

. Government to prove the unrelated crime of income

tax evasion?

Should a Judgment of Acquittal be granted where the .

Government fails to offer any proof to negate the.testi-

mony of its own witnesses that the unlawful state

. activity (bingo games), was conducted for the benefit

of charitable sponsors? .

. Should a new trial be granted where the Government,

in its closing argument, appeals to bias and prejudice

by implying that the Federal Government was forced

to prosecute criminals, such as defendants, since sfate

and local. authorities would not

prosecution?

institute criminal

Should a new trial be granted where the Trial Court

‘allows the Government to introduce evidence of gam- —

_ bling by Blackjack and slot machines whete the indict: ;

ment alleges only that defendants engaged in a lottery -

and bookmaking in violation of Louisiana law?

Were the defendants’ constitiitional rights against self-

incrimination, as espoused by the Fifth Amendment

to the United States Constitution, violated when the

Trial Court allowed. the Government to introduce into

evidence business records secured from the defendants

‘pursuant to the execution of a search warrant?

Were the acts allegedly performed by the defendants

eenitinenininemieemeee

4

such that they violated the intent and spirit of 18 USC

_ 1952?

~

VIII. Do 18.USC 1955 and 18 USC 1961 (act October 15,

~ 1970, Public Law ‘91-452) amend or repeal 18 USC

1952?

STATUTORY PROVISIONS INVOLVED

This case involves the following statutory provisions:

1, 18 USC 1952 i ae

“Interstate and foreign travel or transportation

in aid of racketeering enterprises.—

‘‘(a) Whoever travels in interstate or foreign com-

merce or uses any facility in interstate or foreign com-

merce, including the mail, with intent to—

» : . “(1) distribute the proceeds of any unlawful

any: or 1

“(2) conumit any crime ‘of.violence to further any

unlawful activity; or

“(5) otherwise promote, manage, establish, carry

_ on, ar facilitate the promotion, management,

establishment, or carrying on, of any unlaw-

ful activity,

and thereafter performs or attempts to perform any of

the acts specified in sub-paragraphs (1), (2), and (5),

_ shall be fined not more than $10,000 or imprisoned for

“not more than five years, or both.

“(b) As used in this section ‘unlawful activity’ means

(1) any business enterprise invglving gambling, liquor

. 5

on which the Federal excise tax has not been paid, nar-

cotics, or prostitution offenses in violation of the lays

pf the State in which: they are committed or of the

United States, or (2) extortion. bribery, or arson in

violation of the laws of the State: in which: Comanties

or of the United States.

“(c) “Investigations sa wohl under this section

involving liquor or narcotics shal] be conducted under

the supervision of the Secretary of the Treasurer.”

.

~ .

18 USC 371

“Conspiracy to commit ‘Offense to, defraud

United States. —If two vr more persons conspire either

to commit any offense against ihe United States, or to

defraud the United States, or any agency thereof in

any manner” or for any purpose, and one or more of

such persons do any act to effect the object of the con-

spiracy, each shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

-

“If, however, the offense, the commission of which

- is the object of the conspiracy, is a. misdemeanor only.

-the punishment for such conspiracy shall not exceed

the wee punishment provided for such misde-

meanor.’

18 USC 2

“Principals. (a) Whoever commits an offense against

the United States or aids, abets, counsels, commands,

induces or: procures its’ commission, is: punishable as a

principal. ) °

a'

“(b) Whoever willfully causes an act to be done which

is directly performed by him or another would be an

-£

—<———

ur

- offense against the United States, is s punishable as a

principal. ©

18 USC 1955

_“(e) This-section shall not apply to any bingo game,

lottery, or similar game of chance conducted by an

organization exempt from tax under paragraph (5)

‘of subsection (c) of section 501 of the Internal Reve-

nue Code of 1954, as amended’ (26 $501 (c)(3), if

no part of the gross receipts derived from such activ-

ity Tnures to the benefit of any private shareholder, -

member, or employee of such organization except as

compensation for actual.expenses incurred by him in.

the conduct of such activity.”

is USC 1961

“Definitions.—As used in this chapter (gs $ 1961-

1968 of this title) —

“(1) ‘racketeering activity’ means (A) any act

or threat involving murder, kidnapping, gambling,

arson, robbery, bribery, extortion, or dealing in nar-

cotic or other dangerous drugs, which is chargeable

under State law and punishable by imprisonment for

more than one year.”

La. RS 14:90 shel tr

“Gambling—Gambling is the intentional conduct- -

ing, or: directly assisting in the conducting, as a busi-

ness, of any game, contest, lottery, or contrivance -

whereby a person risks the loss of anything of ‘value in

order to. realize a profit.

“Whoever commits the crime of gambling shall be _

fined not more than five hundred dollars, or imprisoned

= Y- moré than six months, or both.”

eon.

-~)

_STATEMENT.OF THE CASE

== A Federal Grand Jury meeting in New Orleans; Louisiana

Pa returned and filed on the 20th day of January, 1970, a four

count indictment against appellants, Frank Leo: Vuci, Henry

Anthony Noto and Haskel F. Jones. Count one-of the indict-

ment charges that Vuci, Noto and Jones conspired to violate

Title 18 USC 1952, _ 371, 2 and alleges that the defendants

engaged in a seebilinns business enterprise involving a lottery

and. bookmaking in.the Eastern. District of Louisiana,. in vio-

lation of the laws of the State of Louisiana; that an interstate

facility "would be used by the defendant and gambling para- ; p:

phernalia would be sent from the’ State of Colorado to, the ‘

Eastern District of Louisiana. It also lists seven evert acts

: which the. defendants allegedly performed -in furtherance of _

the. conspiracy, three of which are the same acts alleged in ‘*

counts two, ‘three and four of the indictment.

i . Defendant, Haskel F. Jones, was charged in. only count one

and count four of the indictment whereas defendants, Vuci-

and Noto, were charged in all four counts of the indictment.

: Count two of the indictment charges defendants, Vuci.

and Noto, with a substantive violation of Title 18 USC Sections . “

1952 and 2 ini that they, in June, 1967, used an interstate facil- ee

fi\with intent to promote, establish, earry on or facilitate an

wful activity in the State of Louisiana. The unlawful

ctiv ity was defined as a lotter v in violation of the laws of the

of Louisiana. '

Count three of the indictment charges defendants, Vuei

and Noto, with a substantive violation of Title 18 USC Sec-

tions 1952 and 2 in that in February, 1967, they did use an

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literstate facility between the Eastern District of Louisiana’

and the State of Colorado té promote or facilitate an unlawful. |

activity in the State of Louisiana. ~The unlawful acivity was

described as a lottery.

Count ‘four of the indictment alleges that in January,

1969, deféndants, Vuci, ‘Noto and Jones, did- knowingly use

an interstate facility between the Eastern District of Louisi-

ana and the Sfate of Colorado to promote or facilitate an un-

lawful activity in the State of Louisiana in violation of. Title

18 USC Sections 1952 and , The unlawful business enterprtse

was described asa lottery. , |

™~

y

~ On the 30th day of March, 1971, the triat began with the

selection of the Jury. The Government presented its case and

rested. The defendants, out of the presence of the Jury, moved

for a Judgment of Acquittal which was denied by the Trial

Court. The defendants did not: present \any testimony after ©

the Government rested its case. After argument and instruc-

tions by the Court, the Jury, on March 31, 1971, returned its

' verdict of not guilty as to defendant, Haskel F. Jones, and

returned a verdict of guilty as charged as to defendants, Frank

Leo Vuci and Henry Anthony Noto, on all four counts of the

indictment.

Appellants, in due course, filed an original and supple-

mental motion for Judgment of Acquittal cor New Trial. The

Trial Court, after argument, denied Appellants’ motions on

the 21st day of May, 1971. — eRe . i

Defendant; Frank Leo Vuci, on the 21st day of May,

“1971, was sentenced to five years in prison on count one and

a fine of $10,000.00, and five years in prison on counts 2, 3.

e-

9

‘ and 4 to run concurrently. with the count one sentence. The _.

court sentenced defendant Henry Anthony Noto to three years

in prison and a fine of $5,000.00..on count one of the indict- .

ment and threé years Smmprisonment of on counmt’2, 3 arid 4 to .-

run concurrently with the sentence imposed in court one. The

execution of the sentence as to the imprisonment was sus-

. pended pending appeal. ; .

Defendants filed a Notice of Appeal with the trial court

on May 26, 1971 which, in-due course, was perfected ‘to the

Court of Appeals for the Fifth Circuit. :

The Court of Appeals for the Fifth Circuit on the 30th

day of November, 1971 handed down Hts, ruting. affirming the

trial court without opinion. Petitioners timely filed applica-

tion for rehearing which was also denied by” the Court of

. Appeals for the Fifth Circuit on the 27th day of December,

1971. The- Mandate was' stayed until the 26th day: of January,

1972: pending petitioners’ application for Writ of Certiorari nis

to this vemeiael Court. ie

® ; a

ARGUMENT

I. A JUDGMENT OF ACQUITTAL SHOULD BE GRANTED

WHERE THE GOVERNMENT DOES NOT PROVE THAT

THE ALLEGED CRIME OCCURRED WITHIN THE

JURISDICTION OF THE TRIAL COURT.

Defendants, Frank Leo Vuci and Henry Anthony Noto,

hereinafter referred to only as defendants, .unless a defendant

is expressly" ‘identified, separately, were charged in a. four

count indictment with having violated Title-18 USC Sections -

1952, 371 and 2. Unless specifically enumerated, defendants’

argument will be directed to all four counts of the indictment.

———

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on:

wees Re 58 ts x

The Government introduced proof: attemptirig ‘to show.

that the defendants: were engaged in the business of gambling °

at the Club Louisiahe in violation of the’ laws tae?

and that they entered interstate commer ce. in an attempt to

_ facilitate their alleged unlawful gambling business. The de-

fendants relied upon the legal and constitutional maxim that

all men are presumed innocent until.pr ‘oven guilty /beyond a

reasonable doubt ahd did — any .witnesses tol testify on

their behalf. ae

~~

It is fundamental law ‘that the Government ‘must prove

“the guilt of 4, defendant beyond any reasonable doubt. Thé -

Government must also prove @ each and every essential element |

~

of the crime for which a defendant. is char ced. ‘One of ‘the «

essential elements which the Gover nment_ must prove in every.

2 cr iminal prosecution is that the crime occurred within the |

- jtirrisdiction of the Court. Proof-of venue in the United States

District Court for the Eastern District of Louisiana was essen-

“tial to its havi ing jurisdiction over the charges against defen- -"

_-dants. Proof of. vegue or jurisdiction, is not! a procedural mat- |

ter since it is conta ed’ in the ‘following provisions of a

- United States Constitution:

“The trial of all crimes, except in cakes of impeachment,

shall be by Ji ury; and such trials shall be held in the state

where the crime shall have been committed. ula

-_U. S. Constitution Article 3: Section 2 Clause 3

a “In all criminal. prosecutions, the acctised- shall enjoy

the right to a speedy and public trial, . by an impartial

jury of the state and — wherein ‘the crime shall

have been committed . .

U.S, Constitution esicnie -.. A:

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“

2

2.

It has been held that: the above cotton provisions

concerning venue cannot be dispensed ith as merely. pro-

cedural or-technical. Aerie Ti

Travis.v. United States, 364 US 631, 81 Sup.Ct. 358

Serio v. United States, 377 Fed. 2d 936 (1967) | 4

United States v. Joh nson, 323 US 273, 65 Sup.Ct. 249 é

Counsel for defendants has examined the appendix con- -”

‘taining the transcript of defendants’ trial and has found no

. proof of record that the crimes for which defendants are

-charged occurred within the a the United States

ae a District Court of. the Eastern District of (Louisiana. The only

~ .° » —proof of venue occurred in the HES: of F.BI. Agents

_, Nardison and “Butz. Agent Hardison testified in response . to”

a. question by the Government’s attorney concerning the. ~

Iceation ‘of Club Louisiane: <=

-“Q. “Am where is that located?” |

: ; é , ; ey Wi, -

_ A. “That is on Highway 190 WeSt, in Port Allen, I be-"'

_lieve it is.” :

seen )

(AP 97)

Agent Butz in response to the question by the Govern-

ment, as to the location of Club Louisiane stated: Me

Q. “And where is that Sir?”

a “In Port Allen on Us Yighway 190."

(AP. 130)

' | /

> 12 :

E sid his a to take judicial notice that the Club Lou-

1é is lotated in the Eastern District | Louisiana, a num-'

ber of questions must be answered. must conclude at

. &. Highway 190 is located exclusively within the territorial

: . jurisdiction of ‘the United States District Court for the East- © |

| ern District of Louisiana. This, ‘of cour se, is impossible, since

U. S. flighway 190 is a heavily traveled U.S. Highway span-

ning. easterly and. westerly far outside the Eastern District of

* \Louisiana. This court is also faced with the problem that U.S.

. Highway 190 does not pass through the City of Port Allen,

, Louisiana. The court should’ take judicial notice of the boun-

: darigs of the City of Port‘ Allert, Louisiana ‘since its territorial

. Jimits are: enumerated in an amendment to its Articles of

. Incorporation of record with the Clerk of Court. and Recorder

for the Parish of -West ‘Baton Rouge, Louisiana, “recorded

February 12, 1970 in. Conveyance Book ' 110 Entry No. 1.

_” These amended Articles of Incorporation are also a matter of - .

public record having ‘been filed with the Office of the Secre-

tary of State for the State of. Louisiana. These records show .

that U. ‘Ss. Highway 190 is not. immediately adjacent to nor

does’ it traverse the limits’ of the City of Port Allen, Louisi-

ana.

| The court can take judicial weties of the loeation and

boundaries of an ‘ificorporated city, such as Port Allen, Louisi-

; ana and thé location vf Uw. & Highway 190.

Nagamine eae S., 298 Fed. 24 496 tsth Cir. 1962)

U. 8. v. Harris, 331 Fed. 2d 600 (1964)

Rutherford v. U. S., 264 Fed. 2d 180.

~ The testimony and evidence _ introduced at the trial, of -

a z Y

v a

+B

thig matter are in ‘itect conflict as to the location of defen-

dants’ alleged gambling establish ent. The testimony’ was to..

‘the effect that the gambling estab ishment where the crinie

. ‘was allegedly consummated was located in Port Allen, Lou-

Vi isiana on U. S. Highway 190.. This, ) course, is a factual

impossibility since U. S. ‘Highway: 190 does not traverse nor .

is. it immediately wa to Port Allen, ‘Louisiana, ee

The. reference to a certain street or highway, without — "9

more, in the’ absence of identification of the city has been

held insufficient to prove venue.

a | : dl

~~. U8. v. Jones, 174 Fed. 24-746. °°” fon

ei

U.S. v. Brown, 225 Fed. 2d 751 -

U..S. v. Mendell, 447 Fed. 2d 639

It is submitted that the court should enter a Judgment ~

of Acquittal herein ‘since the Government completely failed

‘ to prove that, the crimes for which the defendants are charged

took ‘place within the — of the “trial court.

\. 7

GOVERNM NT, TO INTRODUCE INTO EVIDENCE

/ CORPORATEM JCOME TAX RETURNS “AGAINST

AN INDIVIDUAL DEFENDANT WHERE THE GOV- —

ERNMENT FAILED TO PROVE THAT THE DEFEN-

DANT WAS AN OFFICER, AGENT, EMPLOYEE ‘OR =

STOCKHOLDER OF SAID CORPOR ATION.

s. AD NEW TRIAL SHOULD: BE GRANTED W HERE,

bop OVER DEFENDANTS’ OBJECTIONS, THE TRIAL

COURT ALLOWED CORPORATE <-INCOME TAN

a ~

«ed :

“ILA. THE = COURT SHOULD NOT PERMIT: Tike -

14

-. REFURNS TQ BE INTRODUCED INTO EVIDENCE:

5 e :WHEN SAID INCOME TAX RETURNS VIEWED

» ‘TOGETHER WITH THE GOVERNMENT'S CHARTS -

AND ESTIMATES PREVIOUSLY. INTRODUCED

INTO EVIDENCE WAS AN ATTEMPT BY THE GOV-

pars: ERNMENT TO PROVE THE, UNRELATED CRIME

OF INCOME TAX EVASION.

(A.) The Govefnment, over the objection of defendants,

introduced corporate income tax returns of Westside Enter-

‘+ _ tainment, Inc. for the tax years ing May 31, 1968 and May . .

31,1969 (AP 290). The corpora income tax returns were

‘certified. copies under seal from the Internal Revenue Service.

* Copies ofthe corporate income tax returns had been furnished

to counsel for defendants: by the Government pfior to trial

court (AP 67-68). The.defendants, prior tq trial, had objected

~ to the introduction of the corporate income tax. returns 4nd

had. together with the Government, furnished the court with

a trial memorandum concerning their admissibility: Counse!

for defehdants noted’ his previous objection when he objected

- to the introduction of the corporate income tax returns at the

trial. ‘

MR. D’AMICO: “If your Honor please, we want to make

> and had been discussed at a pretrial conference with the trial.

} ’ « our objection to the introduction of the

returns as we previously told the court,

and we wanf to make that objection

at this timé.”

> (AP 290-291) 4

i .

Defendants feel the corporate income tax returns should

‘not have been admitted into evidence because no proof had .

been introduced showing either defendant-to be an officer,

a

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, agent or stockholder of the corpora tion. Without the proper

foundation or predicate, the corporate income tex returns

‘were irrelevant and immaterial to. the inquiry before the

-court. The introduction of such evidence » rongfully permitted

the Jury to draw an_ inference ®pased solely upon. another

inference. The Jury could infer that ‘sinee defendant's name

appeared on the corporate iffcome tax retuyns, they must of

necessity bé an officer or stockholder of the corporation. It

_ could then infer that sitice defendant's name appeared on the

; corporate income tax return, he signed or authorized someone

te sicn his name thereto. That since the defendant was an

officer, agent or stockholder of the corporation and had signed

the ‘corporate “fncome tax return Which , showed gambling .

income, he was guilty of Violating IS USC 1952 becaust ile]

gambling was an element “of the Feceral vielation for w hich -

. the defendants were being tried. There was no-proof of vec ord

‘ that defendant signed the corporate income tix returns nor

_ any proof that defendant was an offleer, agent or stocisio!

of. the corporation. Until at least one of these facis were estab-

lished, the introduction of the ‘corporate income 1 a> returns

was error since it alowed the Jury to cork dude the cuilt of the

defendants from ar inference based solely upon ancther infer-

ence. — % ° . ;

t Direct Sales Go! v-U+S., 319 US 703, 63 S.Ct. 1265

McNeely vo. U. 8., 353 F. 2d 915

. : . : a .

(B.) The corporate income.iax returns are further objec-

ble viewed in connection with-the #%overmment’s charts

estiniates involving defendants’ alleged bingo opera-

tion introduced as “G-=2.5 & 4° (AP, 122). The corporate tax

returns list income ‘from caming. waverin’ . and binge. Gov-

}

ernment Exhibit “G-2

16

ro) «pr?

AP.122) shows the estimated number

of customers who attended the bingo games at the Club Lou-

isiané from July”: Oe 1968 to August 28; 1968. It also shows the

estimated number of bingo cards purchased by each person

iogether with the price charged foreach bingo card, It seems

*- obwi ious that any reasonably intelligent Jury could be expec ted

to roughly calculate the amount of income which ‘should be

derived from the bingo operations per year. (S586, GS9.60) if

the Government's estimates were correct . The corporate in-

come tax return “G-23" (AP -290) for the tigg year ending May

31, 1969 lists ‘bingo inconje as S19, 773.30. Eten without ar

‘exact calculation of the a vit tea bingo income for the full

year, it would be obvious to any juror that the bingo income

was greatly understated.on'the cor ‘porate tax return, ‘and indi-*

cated defendants w ere vitttad of income tax evasion. ;

An almost identical “problem \ was faced and thoroughly:

discussed by the Court of Appeals for the Fifth Circuit in

South v.U.S., 368 Fed. 2d 202, 2h, : 206 (Sth. Cir., 1966).

_ The Government in ‘the ue of ipoetie. relied upon”

Grimes v. U. &., 379 Fed. 2d 791 (5th Cir), for the proposi-

tion that the inceme tax returns were’ properly ‘admitted in

the defendant's trial. The court :in Grimes v. U. 8. (Supra)

rejected Grimes’ contention that -the introduction of his in-

come tax returns which showed his business as gaming was-

error. The court cited U. S. v. Zizzo, 338 Fed. 2d 577 (7th

‘ Cir.), as the “— aid for its 6verruling ‘Grimes’ contention.

The court in U. . Zizzo (Supra). was not faced with the

_question of admissibility of income: ‘tax retur ns but dealt with ©

Federal Occupational Wagering-tax returns. It is submitted

that the Zi320 case was over ruled by implication in 1968 when

Wagering tax re turns were he id to be nonadmissible,

17

_ .

f

‘Marchetti v. U. S., 390 U. S. 39, 88 Supreme Court 697

~*(1968) - : or

Grosso v: U. 8:, 390 U. S. 62, 88 Supreme Court 716 (1968)

Haines v. U. S., 390 U. §. 85, 88 Supreme Court 772 ’

Leary v..U. S., 395 U. S. 6, 89 Supreme Court 1532

-

Nolan v. U. S., 395 Fed:"2d 283 (5th Cir.) 1968, 423 Fed.

"> 24 1031 (1970) sin . ‘

The court’s pronouncement in Grimes v. U. S. as to the ‘ad-’

missibility of income tax returns to show gambling was based

upon erroneous authority. This fact, plus the decision of

Marchetti v: U. S. (Supra) et al (cited above), shows that

the court’s pronouncements should be given no effect. See

also Courtney v. U. S.,.390 Fed. 2d 521 (9th Cir.); U.S. v.

U. 8. Coin and Currency, 393 Fed. 2d 499 (7th Cir.), 91

‘S.Ct. 1041 (1971).

.

It is submitted that if the pronouncement in South rv.

U.S. (Supra) is applied, the court should reverse defen- —

dants’ conviction /since the’ corporate income ta@x returns

viewed together with the Government's charts and_ estimates -

clearly was an attempt to prove an unrelated crime had beer

committed by defendants and unfairly prejudiced them with

- the Jury. i

~ III. A JUDGMENT OF ACQUITTAL SHOULD BE GRANT-

ED WHERE THE GOVERNMENT FAILS-TO OFFER

ANY PROOF TO NEGATE THE TESTIMONY OF ITS

. |

U.S. v. Covington, 9 U. S. 57, 89 Supreme Court 15397

18. - -.

OWN WITNESSES THAT THE UNLAWFUL: STATE -

ACTIVITY (BINGO GAMES) WAS CONDUCTED

WITHOUT PROFIT FOR THE BENEFIT OF CHARTI-

- TABLE SPONSORS.

The’ Gover: ‘ument, in an attempe, to negate “the fact that

charitable bingo is legal in the State of Louisiana, called two

witnesses in.an attempt to show that the bingo- -same allegedly

conducted by defendants w as not a charity bingo game. The -

Government called Mr. Henry Gray, an officer of Port Allen

Junior Chamber of Cornmer "ce, a charitable organization ‘(AP-

290), and - called Mr- Joseph H, Bernard, an “officer of the

- Brusly Lions Club, a charitable organization (AP-241). These

witnesses established ‘that their charitable organizations spon-

sored the bingo’ games allegedly conducted by defendants and

‘that their Clubs received the sum of $150.00 per month as

sponsors (AP-218 and AP-245). ‘Gambling in Louisiana_ is

prohibited by Louisiana Revised Statute 14: 90. This statute

* provides in pertinent parts that gambling to he illegal must

be ronducted, for a profit. If gambling is not condutted. for a

profit, there is no. Violatton of. the Louisiana law. -

If the alleged gambling in this case was legal in the

State of Louisiana, the Federal charges against the @cfendants -

“must of necessity fall since 18 USC 1952 requires that inter- -

state transportation be used in furtherance of a gambling

- operation, legal under state law,

It is submitted that since the Government failed to offer

, proof to negate the testimony of its ‘own avitnesses, that the

gambling operation involving a lottery or bingo was or could

have hens ‘conducted for no profit, a Judgment of Acquittal

should be entered-- :

- @ ~ -

ie SS as ee

IV. A NEW TRIAL SHOULD BE GRANTED WHERE THE

-_ GOVERNMENT, IN ITS CLOSING ARGUMENT, AP-

‘PEALED TO BIAS AND PREJUDICE BY IMPLYING -

" THAT THE FEDERAL GOVERNMENT WAS FORCED

TO PROSECUTE CRIMINALS SUCH AS DEFEN-

DANTS SINCE STATE AND LOCAL AUTHORITIES

WOULD OE INSTITUTE stonceaplngin PROSECU TION. ;

Ay -.

‘The Sulyeme Court in aaa v. U. S., 295 U. “S. 78, 55.

Sup.Ct. 629, solidified the v ell known jurispr udential rule that

a-pi “osecuting: attorney may not use improper methods to pro-

cure a conviction. Improper cenduct' would include appealing ~*~

to bias or pr ejudice or ridiculing a defendant before the Jury.

a

The U. S. Attor ney, in the iain case, in his closing

argument said: - . a, ig eT apn

I

Ladies and gentiemen, iakealt’ jo. you that - you have

‘but one alternative here. You took an oath as jurors ¢ x

to uphold the law, and if ‘you want to wake up tomorrow (

morning and look yourselves in the mirrer, look your--

b selves in the face, you will haye t@ ab. your duty as jur ors

° and uphold the law. If the State of Louisiana can't, clean

its own ee then we will clean them for her. -Find

al] three oom ;

(AP-356) = shee 7g

It is submitted that such conduct was “improper. and -

‘requires the defendants be cranted a new trial. The follow-

ing case shows that courts have granted new trials because 5

sof similar misconduct. ;

- e. 2 - a ‘A ee

: - Uz S. v. Handinan, 447 F.2d 853. (7th Cir.)

King v. U. &., 372 Fed. 2d 383 (DC)

-V. IT WAS ERROR TO ALLOW THE GOVERNMENT TO .

. INTRODUCE EVIDENCE OF GAMBLING BY BLACK-

» SACK AND SLOT MACHINES WHERE THE INDICT-

MENT ALLEGES ONLY THAT DEFENDANTS. EN-

GAGED IN A LOTTERY AND BOOKMAKING IN VIO-

LATION OF LOUISIANA ‘LAW. *

7%

The court has paenmeren in Pen whether to admit

’ ‘evidence of crimes other than that charged in the indictment. .

In the*instant case the defendants feel that*the court abused

its discretion when it allowed the introduction of evidence

concerning other crimes. The court allowed testimony as to

gambling by means. of slot machines and blackjack games

(AP 115- -119), w hich were acts of gambling other than that

‘charged Timthe indictment. As more fully enumerated herein- *

above, count one of the indictment alleged a conspiraey to

violate Title 18 USC 1952 and the illegal activity was stated

‘to bea lottery and bookmaking. Counts two, three and feur

of the indictment’ allege a substantive violation of 18 USC

1952 and specify the illegal activity. as’ a lottery.- Further, .

J - the Government, in answer to defendants’ Bill of Particulars,

stated that. the state law violation was the conducting of an

illegal lottery and bookmaking -business (AP 30-33).

i.

The‘defendants fimely objected to the introduction of any ;

evidence as to gambling other than the act of gambling -

specified in the indictment (AP 114). It seems clear from

the testimony the Government introduced as. ta, other gam-

bling, that it was an attempt to show that poo were

: big time’ or large scale professional gamblers and ‘thereby -

prejudiced the Jur y against the defendants. The evidence

concerning _other gambling did not strengthen the Govern-

ment’s case insofar as a violation of 18 USC 1952.

on

The court should exclude evidence of other crimes in a

‘particular fact situation, such as in the instant case..

ye

-U. 8. v. Gorman, 393 Fed..2d 209, 219

it * ad oa .

“As noted in McCormick on Evidence 152, three

~ factors justifying éxclusion of evidence are: danger

. of jury prejudice, danver of jury distraction by crea-

. tion of side issues, and consumption of.undue amount

of trial time.”

In Thomas v. U. S., 376 Fed. 24 564 (5th Cir.), the court

reversed a conviction of the Federal crime of possession of

a sawed-off shotgun because of the introduction of a chain and

bullwhip seized with the shotgun. The ‘court felt’ that’ this.

type evidence unjustly prejudiced the defendant ince a chain.

and whip are itenfs for: which an average juror has hatred

- and seorn. A similar problem is present in the instant case

since there has been great publicity concerning organized .

_ crime involving big time or. extensive gambling.

U. S. v. Kearney, 420 Fed. 2417 (DC)"

U. S. v. Rizzo, 418 Fed. 2d 71 (7th Cir.)

It.is submitted that for the above and foregoing reasans

the introduction of evidence of other gambling was error and

requires that the court reverse defendants’ conviction because

of the likelihood of juror prejudice. created by such testimorfy. ~

VI. THE DEFENDANTS’ GONSTITUTIONAL RIGHTS

AGAINST SELF INCRIMINATION, AS ESPOUSED

| BY THE FIFTH AMENDMENT TO THE UNITED -

STATES CONSTATUTION, WERE VIOLATED WHEN .

* 'PHE TRIAL COUKT ALL OWED FH G Nv ERNMENT

TO INTRODUCE *NTO EVIDENCE BUSSNESS REC

* ORDS SECURED FRO) i THE DEFENDANTS PCR- ;

- SUANT TO THE EXECUTION OF x SEARCH VAR-

3 a a ; :

-

“The Government, in the trial court, introduced business

records secured from defendants pursuant to the execution of

— search warrant (: AP 151-154: The introduction of these

mapfrials- violated deféndants’ Fifth Amendinent privilege

against self incrimination since they could not have been

-secured froni the defendant pursuant to a subpoena.

rm)

In Hill v- Piitpott, 445 Fed. 2d 144 (7th Cir: 1971), ‘the

- eourt held that such re ‘érds were pr ivileged and seizure pur-

suant to search warrant and their subsequent. introduction at

Oo en

.

’

. , ¢

.

\

a violated, defendant’: ; Fifth Amendinent pri ivilege against

self incrimination. | If- pronouncements in Hill v. Philpott

_ (Supra) are. te be given ‘effect, the defendants should be

or anted” a new trial.

VI. THE ACTS ALLEGEDLY\ PERFORMED ,.BY THE

DEFENDANTS DID NOT VIOL. ATE THE INTENT

AND SPIRIT OF 18 UgC 1952. \ ,

'e :

ike

The Trial Court denied defendants” aan for Judemenwy

of -Acquittal even though there ‘was no provf introduced to

_ Show that defendanis resided in one state oe or

managing an illegal activity located in another. — alleged

conduct of defendants was not of such a nature ‘as, to be a

. violation of the intent and spirit of 18 USC 1952.

“Rawls &. U.§., 91 Supreme Court, 1056, 1059

.

. .

~ “ *

ae egislative. history of the Act is limited, ‘but does reveal

that § 1952.was aimed primarily at organized ¢ vine and,

more ‘nis ally, at persons who reside in one State while,

operating or managing illegal activities located in another.

cw ogg. & ‘ ; if

.From the above it would seem that the defendants are.

* . s bd

not of that class of persons who should be subject’ to the

express letter of the law governing: the’ Travel Act, 18 USC

1952. There ‘Was no proof of record to show that defendanis.

resided outside of the State of Louisiana: and iMfanaged oar

operated an. illeg ral activ itv w vithin the ‘State of Louisiana.

=

VII. .18 USC 1955 AND 18.USC 1961, “ACT OCTOBER 15,

, 1970, PUBLIC LAW 91-452 Sea a OR Siow aie

\B8 USC.1952, 3 "|

Defendants fare- chars ged with having Violated Title 18,

USC 1952 in that they used an interstate facility to promote:

“is eamhling business w hich was unlawful under State lay, “On

October 5 9 1970 Congress enacted an act, _ October 15, 1976,

Public Law 91-452 which created Titde 18, USC 1955 and

1961. Title 18, USC 1952 is a ‘general’ statute ‘amended: by

Public Lav § 87-228 September 13, 1961..18 UST, Sections 1955

‘and 1961 are late express sions.of the legislative w il of Congr ess.

It is fundamental that a later act of Congress supersedes 6r

repeals any oldey:statutes Which are in conflict therewith: -

. Title 18 USC 1955(e) provides ‘that «bingo games or

lotteries are not a violation if no part of the gross receipts

' derived from the said a@ivity intves to the benefit of «any

: 3 Nig oa

ASTRA

24

e ‘ ' .

.

a ; nd

private shareholder, Inember or employea ol suc h organiza.

tion, except’ as compensation for actual expenses incurred by

him in the conduct of such. business. +

J a.

Title 18-USC 19611) defines racketeering activities as,

* ‘racketeering activity’’means (A) any/act or threat involving

‘murder, kidnapping, gambling, arson, robber y,. bribery, CXF

tortiors or dealing in narcotic or, other dangerous drugs, W hic h

-is chi wgeable under State law and punishable by impris ronme nt -

for nore than one year,

a : ‘ 2 Et a We ns

There seems. to. be a ‘contlict between 1s U SCHIYDD and

4961 and 18 Us a. 19; 32 insofar as they apply to ihe instani-.

“case. 18 USC:}961 states that racketeering activities, such

as gambling, is! not ae federal crime unless it is chargeable’

urider: State law yand punishable: by. impr isonment for, more

than one yea. Under fhe Jaws of «the State of Louisiana,;

Revised Statute 14:90 the maximum pens ty that can ‘be ai a

“curred for the crime of gambling -is a sentence is impr iso: I~

“ment for not more’ | han SIN menihs. ace Caw

£ wa = . ,

It is. submitted that the later expression. of the “will ¢

Congress should control and the Court should hold .that’® is

JSC:1952 is amended or appealed, by We USC Section 1955

and Section 1961 insofwe us it is in-conflict therewith,

7

2. CONCLUSION... *

In conclusion; it is ‘vespect fully requested that a Writ of

Co rtiorari be granted a ind after tie. consideration, 2 judement |

°

ig

seed

ig .

£ ' ; 25 a

re a" 7 a @ 7 .

of, paferait al, be entered, or in the alternative, petitioners’ cOn- ¢

es ction be reversed and they be granted:a new trial.

.: el et es Pe

* Respectfully submitted: + . :

D’AMICO, CURET & BUSH

; Pee pre oe

pee oe ese: Som & D'Amico

, eS Baton Rouge, Louisiana 70801

° 2 2

e : By: . A ‘ s : “e.

, . ‘ . = F ; : ie a ° iP ~

= a . Bryan BE. Bush, Jr... . ~ 1

, Sree: -- . ° 610 Reymond Building

Pee - . . . Baton Rouge, Louisiana 76861 *

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1 NEREDY CERTIFY thal efpies of the above andl fore

.

cine petition ines firs day é i ved on the foll#-: ing ty

* .

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o (Opposing, Sune ini» Uniuyt Sta'es mo@, poctone Prwyperst

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- ; : APPENDIX

“Tnited States Lourt of Appeals —

ae 3 Ror the: Filth Cireuit er

. : October Term: 197]

Ne. 70-929. ,. te

~~ 1. Docket No. CK ASTI re:

UNITED STATES OF AMERICA, *

Paintia. Sept

; . . Versts

PRANK LEO VOC! sed HENRY ANTHONY NOTO.

_ Detendante-Apgefients.

Appral trom the United States District Court fer the

: Eestcrn District of Locsin

* a

* Refore GEWIN. GOLDBERG and DYER. Circuit Judges.

fo

.

- ° *

i . .

. ‘

‘ sO DGMENT | On

This cauge came on to be he’@i on the transcript of The

record [re the United States District Gart for, the Eastern .

Dist ict of Loyisiana, and ms argued by coufieel,° e

¢

ON. <COMDERATION WHEREOF. It is now here

ordered and adjudied ley this Court that the judement of the:

said District Court in this catise be, and the same ee Teby.

affirmed. _ on Ps

aa . : November? 30: 1971

Ifsued As Maridate: | e

. " ; 7 5

. . e ra

* . .

. . .

~-s

28

In the

. L nited States Court of Appeals

= - For the Fitth Circuit ;

as .

_ UNITED STATES OF AMERICA, / |

. , Plaintiff-/ Appellee,

ar ree

ark INK LEO VUCI and ‘HENRY ANTHONY NOTO, _ b

en Defendants-Appellants.

Appeal from the United States. District ¢ ‘ourt for ta

° ae EFastorn Distr wt of “Louisiana .

(November 30, 1971)

_ Before GEWIN, GOLDBERG and DYER..

: _ Circuit Judges.

‘PER CORIAM: AFFIRMED. See Local Rule 4 p

° . : : . ers ° . :

‘See NLRB v,, Amalgamate - Clothing Workers of America, 430 F.2d

O66 (ath C ir. 19870) °

. . - =

.

% °

mf “

i . \

o 29 .

_ a oe ta ; os

In the

United States Court i Appe: is:

la For the Fifth Circuit 7

a 71-2229 is

UNITE D ST. ATES OF AMERIC. ®

9 i Plaintiff -A ppelice,

versus

PRANK LEO VCCI and HENRY ANTHONY NOT@,

Defendants-Appellants.

Quem

Appeal from the, United States District Court for the

j Eusicrn District of Louisiana

. °

(December 27, 1971).

ON PETITION FOR REHEARING |

Before GEWIN,, GOLDBERG and DYER, Circuit Judges. °

PER CURIAM: *

IT IS ORDERED iat the pejition. for rehearing filed *

in the ‘above entitled and numbered cause be and the same is

hereby denied.

.

Pe

United States: Cia a Appeals

* Fifth Circuit

December 29, 197 1 : -

Mr. Bryap E. Bush, Jr. <. |

Attorney at Law - | : :

Reymond Building :

Baton Rouge, La. © °* ;

71-2229---U.S.A. v. Frank Leo Vuci and

‘Heniy Anthony Noto °

>

(1) -Appellants’ Motion for Stay of Mandaje.

2) January °, 1972.

Dear Sir: ae ‘ . er ; dhs

I am authorized by this ‘Court to adujae that the above

(1) has been received and’ filed, and under the rules and prac-—

tice of this’ Court will, be presented for ruling without oral

argument on the date” ‘shown in column (2) above, together

with any response or opposition that may be ee opposing

* counsel by that date. . eg

. ~ 'f . * Very truly yours, :

, oa "EDWARD W.'!WADSWORTH, Clerk

; ‘By: Carol A. Gaudet :

at | ; ~Deputy. Clerk :

cc: Mr. Sam J. D'Amico ee

: Mr. Gerald J. Gallinghouse_ :

- Mr. K. Eric Gisleson

This is only the date on which it is now expected that the matter will

be forwarded for ruling and does not mean that this officé will be able

to advise counsef of the Court's action by then. Couns®! ‘should allow

at least ten days’ time thereafter for advite as to- the’ Court's rulihg

befote making inquiry :

* z “ " a, .

> .

<

.

ts

.

*

e

.

fe . : « . -

-

‘ | 31

- : 7 * ‘ F

. United States Court of Appeals

a - Fifth Circuit

January “6, 1972

"Messrs. Bryan E. Bush, Jr. - ne eee i ae

Sam J. D’Amico es 4 °

Attorneys at Law ; fl Oe Ue coats .

610 Reymond Bldg.

Baton Rouge, La.

No. 71-2229—U.S/A. vs Frenk Leo Vuci and Henry —

Antkony, Nato

in

—

MANDATE STAYED TO: January 26, 1972°

‘Dear Sir: + “ere aa ; _ ;

The court has this day granted a ‘stay of- the issuance of the

mandate to the date as shown above. If during the period

. of the stay there is filed with the clerk of this coyrt a_notice

from the clerk of the Supreme-Court that. the. party who has

obtained “the stay has filed a petition for the wyit in that

court, the stay shall: continue ‘until final disposition by the.

‘ Supreme Court. Upon the Qing ofa eopy of an order of the

Supreme Court denying the -petition for writ of certiorar;

the mandate shall issue immediately under Rule 41, FRAP.

- ” Under revised Rule 21(1) of the Supreme Court éffective °

- July 1,-1970, a record is ‘no longer required in connection

with an application fer writ of certiorari, and therefore will

not be routinely prepared by tis office (S8LW 3502).

“foe - gratia , 5 -

Enclosed is a copy of the opinion, judgment and order denying

e > °

; F \

5 se Sp

. 7

7

ee

_

_

,

8

-

2

*

+d

“

. . : * : 32 y si .*

» «rehearing Which are still required by the Supreme Court to

be incorporated as. an appendix to your petition.

Very truly yours,

= EDWARD W- WADSWORT! LeCArk

By: Glaudet te. Staiger’,

Deputy. Clerk.

-ene. © . eam . : ears

cc: * Mr. Gerald J. Gallinzhouse a

Mr. K. Eric Gisleson .

“