# Petition for Writ of Certiorari — Vuci v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0532%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 1064 ## Text . 2 as : t . Prat’ = n \ ; . Sarl " a aunt hw Oo Sy Te aries: — ; ee a -- i saa 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 ”~ eo a . ° a ae or . ' Page ; 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 . Certificate of Service ne Sonal 4 Rppendix ees panna 5S abies See Lanakicns eae te ican te eeeeeeebeeeeees be = : ¥ * ay . \ e ae ee r\ : ee : ~\ . ? ees ri ¥? ° = . fn =f, ts o ™ + — MBA LAM ESA LAA ED AL LDULOR SS DEE EB ARG Bi Pe de Satine eed RS A a J 2. i, ae - ii 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 ; ee .. @ 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. ——— e we - 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: « eu. “ 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: 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 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 “ o a o. B- a ee . é : r - “~ e 2 io - 6 a * = - - e . 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 * ’ a . i v on ; . 5 Y ‘ ( 2 + aes Se 3 a é e ’ e me ~ at . ’ i e e e. = ‘ aad tl 610° Reymond Building = ° o* F o| CERTIFICAT i. .- " . =4° : * ; ‘ 1 NEREDY CERTIFY thal efpies of the above andl fore . cine petition ines firs day é i ved on the foll#-: ing ty * . : : 5 " : . 7 o (Opposing, Sune ini» Uniuyt Sta'es mo@, poctone Prwyperst ; * . . . : PATEL, "5 ‘er 1. United States Court of Syqeu)e*for tha FI Cont ; & wit ‘Sear eLD siget Connrt for ite WF petee wr ae es « Few > “ ’ ~ ls . iat hea ak Pr. ’ «*“T), “yer x : x se ” es > oo Mr Note lL. SVE et mi a . ‘ s. a 7 — ° M > ae é ‘s,*e™een * . " 2 “ni Se Laas Airewt New Orleans. Louition: FUL . : — : , a Baton ee ls * oo, Leuistina this day of January. ist. oe -f P ad - 7. > . . =e M J. TSMC) . . a = . * _ e . 7 . e . = * ‘ . of . © . ° . . ° * * = . . . ad . * e . . . > * . ” e | as e ? — . . * i sccal _ « al * - be 7 3 E as : * , e, “6 e . *. >. . . -- . * * e - 97 . — "i ‘a . > c - ; : 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. (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, . > . ° ; 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 . “ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0532%3A1. Public record. Not legal advice.