Opposition Brief — Tucker v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1192

WILLAIM PRENTIS TUCKER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.) is re-

ported at 526 F.2d 279.

JURISDICTION

The judgment of the court of appeals was entered on

January 22, 1976. The petition for a writ of certiorari was

filed on February 20, 1976. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support

petitioners’ convictions.

2. Whether under 18 U.S.C. 3504 the government

must affirm or deny the existence of illegal electronic

surveillance upon a claim that such illegality “may” have

occurred.

(1)

ULI OP OE oa |

2

STATEMENT

Following a jury trial in the United States District

Court for the Middle District of Georgia, petitioners

were convicted on two counts of conducting an illegal

gambling business and conspiracy to commit that offense,

in violation of 18 U.S.C. 1955 and 371, respectively.'

Petitioner Tucker was sentenced to concurrent terms of

five years’ imprisonment and was fined $20,000; peti-

tioner Hughes was sentenced to concurrent terms of

three years’ imprisonment and was fined $10,000; peti-

tioner Jackson was sentenced to concurrent terms of 18

months’ imprisonment. The court of appeals affirmed

(Pet. App. la-9a).

The evidence adduced at trial? showed that petitioners

operated a gambling enterprise based upon daily stock

and bond quotations on the New York Stock Exchange

(Tr. 288, 558-564). To facilitate the enterprise, petitioners

employed numerous individuals to take bets and transmit

recorded wagers and money (Tr. 297, 303, 308). Peti-

tioners Tucker and Hughes instructed these individuals

in the procedures to be followed (Tr. 354-355, 429-430)

and periodically collected tickets and money from them

(Tr. 356, 432). On other occasions, the tickets and money

were delivered to Ray Bradley’s service station or Ed-

ward Nash’s pool room (Tr. 364, 399, 467) and then

forwarded to Jackson and Hughes (Tr. 84-86, 388-389).

Once the tickets and money were collected, petitioners

gathered at Hughes’ trailer to count the cash receipts and

'Defendants Ray Bradley and Edward Nash pleaded guilty to

these charges prior to trial.

*Seven unindicted co-conspirators testified concerning the

gambling enterprise. Four of them testified that they had partici-

pated in the lottery operation during 1972-1973 (Tr. 84, 135, 350-

351, 387, 429-430). Three of them testified that they had partici-

pated from 1969 or 1970 until the termination of the enterprise

in December 1973 (Tr. 394-395, 405-406, 466-467).

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check the tickets to determine which bettors had won (Tr.

84-85).

On December 18, 1973, pursuant to searches under

warrants, federal agents seized tickets, lottery records

and approximately $7,000 in cash from Hughes’ trailer

(Tr. 217-230), and lottery records from Bradley’s ser-

vice station (Tr. 243-244) and from Nash’s pool room (Tr.

245-247, 252-262). The records showed that the gam-

bling enterprise had operated at least since September

1973 (Tr. 292-294, 300-314, 317-322); that daily gross

revenues often had exceeded $2,000 (Tr. 346); and that

annual gross revenues had exceeded $1.1 million (Tr.

346-348).

ARGUMENT

1. Petitioners contend that the evidence was insuf-

ficient to support their convictions. 18 U.S.C. 1955

defines an “illegal gambling business” as one which is

in violation of law, which “involves five or more persons

who conduct, finance, manage, supervise, direct, or own

all or part of such business” and which “has been or

remains in substantially continuous operation for a period

in excess of thirty days or has a gross revenue of $2,000

in any single day” (18 U.S.C. 1955(b)(1)(ii), (iii)). The jury

was instructed in terms of this definition (Tr. 645).

The evidence, when viewed in the light most favorable

to the government (Glasser v. United States, 315 U.S.

60, 80), was sufficient to support such findings. The three

petitioners operated the enterprise in cooperation with

Bradley and Nash; the enterprise had been in existence

from January 1973 until its termination in December 1973;

and daily gross revenues often exceeded $2,000.

2. Petitioners also contend that the district court erred

in denying their pretrial motions to compel disclosure of

any electronic. surveillance, without requiring

LACT IT eg ty

RARE NT SAPS PT RE ST TES. on CSET RARE AGI GE AE DIR OPPO TR TE ANE EI I TMC oN GEN DS

that the government affirm or deny that it engaged in

illegal electronic surveillance. Petitioners rely on 18

U.S.C. 3504(a)(1), which provides that upon a claim by

an aggrieved party that evidence is inadmissible because

it is the primary product of an unlawful act or was ob-

tained by the exploitation of an unlawful act, “the oppo-

nent of the claim shall affirm or deny the occurrence of the

alleged unlawful act.”

Prior to trial, petitioners} moved to compel disclosure

of any electronic surveillance. In memoranda supporting

that motion, petitioners alleged that “the Government

may have conducted illegal electronic surveillance on

them and their attorneys * * * (emphasis added)” (Pet.

App. 4a). The memoranda contained no additional sup-

porting facts or affidavits. The district court denied the

motion on the ground that petitioners had failed to make

a “claim” sufficient to require that the government af-

firm or deny illegal electronic surveillance under 18

U.S.C. 3504(a)(1).

Whether a claim under Section 3504 must show some

basis for suspecting an illegal action (see United States

v. See, 505 F.2d 845 (C.A. 9), certiorari denied sub nom.

Gordon v. United States, 420 U.S. 992) or need amount to

no more than a “mere assertion” (see /n re Evans, 452 F.2d

1239, 1247 (C.A.D.C.)), the statute clearly requires, as a

bare minimum, that the defendant actually claim that illegal

surveillance has occurred and that evidence gained there-

fore is inadmissible. United States v. Toscanino, 500 F.2d

3Petitioner Jackson did not raise this claim either in the district

court or the court below (see Pet. App. 3a-4a).

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267 (C.A. 2).4 Petitioners, however, did not claim that they

had in fact been the subject of illegal electronic surveillance

or that any evidence introduced against them was the

result of any such surveillance. Their motion was simply

“a fishing expedition” (United States v. See, supra, 505

F.2d at 856), and the district court was accordingly cor-

rect in finding that it did not entitle petitioners to put the

government to the trouble of canvassing the various

agencies whose law enforcement techniques include the

use of electronic surveillance. :

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Pere, ra het

Rosert H. Bork, ’

Solicitor General. :

RICHARD L. THORNBURGH, é

Assistant Attorney General. é

JEROME M. Feit,

RoBERT J. ERICKSON, t

Attorneys. ,

APRIL 1976. :

*Clearly, petitioners’ assertion that their counsel may have been

the subjects of electronic surveillance is insufficient to require an

affirmation or denial by the government. As the court of appeals i

noted in Beverly v. United States, 468 F.2d 732, 752 (C.A. 5): :

, [A]ffidavits [alleging unlawful electronic surveillance of

counsel] should as a minimum name the counsel in question, i

| the outside dates of attorney representation and suspected

surveillance, the [clients] represented by such counsel, as well

as the numbers of the telephones over which the surveillance 4

might have occurred and any other available data tending to ;

identify the suspected surveillance.

See also United States v. Alter, 482 F.2d 1016, 1026 (C.A. 9).

DOJ-1976-04

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