Opposition Brief — Villano v. United States

INDEX

Page

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CITATIONS

Cases:

Abbate v. United States, 359 U.S. 187 ............2... 17

Adams v. United States ex rel. McCann,

PEE I TT ‘sielbcn tasidicieiiniatitldnagpacnntitigibanmenines 16

Alderman v. United States, 394 U.S. 165 ....... 11, 12

Barden ©. Giile, FOP UG. BG cccccccccasevssocessnsnives 17

Beck v. Washington, 369 U.S. S541 ...........cccccceeee 16

Berenyi v. Immigration Director,

Fe es FE ha och tlh nccn eased dinsscesceepitineaihlbnsianeliasanlicnl 10

Erlenbaugh v. United States, 409 U.S. 239 .......... 6

een ee 16

Murphy v. Florida, 421 U.S. 794 .......ccccccccceeeeeeee 16

Rewis v. United States, 401 U.S. 808 ................ 4,5

Taglianetti v. United States, 394 U.S. 316 ........... 12

United States v. Altobella, 442 F.2d 310 ............ 5-6

United States v. Barnes, 383 F.2d 287, |

certiorari denied, 389 U.S. 1040 ...00.......cccceeeee 7

i

il

Cases (continued)

Page

United States v. Blassingame, 427 F.2d 329 ....... 7-8

United States v. Colacurcio, 499 F.2d 1401 .......... 6

United States v. Cox, 449 F.2d 679,

certiorari denied, 406 U.S. 934 .....00..0...00......... 14

United States v. Doolittle, 507 F.2d 1368,

affirmed en banc, 518 F.2d 500, petitions

for writs of certiorari pending, Nos. 75-500,

RE ER EES Se 6

United States v. Eisner, C.A. 6, No. 75-1908,

ea ne ie

United States v. Feola, 420 U.S. 671 ...................... 7

United States v. Hanon, 428 F.2d 101,

certiorari denied, 402 U.S. 952 ...................22000+ 6

United States v. Honeycutt, 311 F.2d 660 .............. 7

United States v. Huss, 482 F.2d 38 ....................-- 12

United States v. John, 508 F.2d 1134,

certiorari denied, 421 U.S. 962 .......................6.. 5

United States v. LeFaivre, 507 F.2d 1288,

certiorari denied, 420 U.S. 1004 .....000......... 5. 6. 7

United States v. McCormick, 442 F.2d 316 .......... 6

United States v. Peskin, 527 F.2d 71,

petition for a writ of certiorari pending,

eRe natn DLE eee 6

United States v. Prince, 529 F.2d 1108 ................. 7

United States v. Rauhoff, 525 F.2d 1170

BLEED THROUGH

Cases (continued)

Page

United States v. Rizzo, 492 F.2d 443,

certiorari denied, 417 U.S. 944 000. 14

United States v. Roselli, 432 F.2d 879.

certiorari denied, 401 U.S. 924 ......00000.0 7

United States v. Sellaro, 514 F.2d 114,

certiorari denied, 421 U.S. 1013 ........0...00000000000... 5

United States v. Smaldone, 485 F.2d 1333.

certiorari denied, 416 U.S. 936 .........0....0000...... 6-7

United States v. Turner, 423 F.2d 481,

certiorari denied, 398 U.S. 967 ...0......cccccceceeeeeee 14

United States v. White, 401 U.S. 745 ............0....... 13

United States ex rel. Darcy v. Handy,

RN ROAR Aa A Re 16

@ 5, S gE oS » Sea esneeeeNN 17

Constitution, statutes and rule:

United States Constitution, Fifth

Amendment (Double Jeopardy Clause) ....2, 16, 17

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RAPA ILI SRN RA NTR SERIE ELK ETE EE ETI PLL EIT SLE OLLIE OE

BLEED THROUGH

Si ETE I PG a NE

In the Supreme Court of the United States

OcToBerR TERM, 1975

No. 75-1349

PAUL CLYDE VILLANO AND PAULINE SMALDONE, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

A-I to A-26) is reported at 529 F.2d 1046.

JURISDICTION

The judgments of the court of appeals (Pet. App. A-27

to A-30) were entered on January 8, 1976, and a petition

for rehearing with suggestion of rehearing en banc

was denied on February 17, 1976 (Pet. App. A-31 to A-32).

The petition for a writ of certiorari was filed on March

18, 1976. The jurisdiction of this Court is invoked

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

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to prove

violations of the Travel Act, 18 U.S.C. 1952.

( ) eee meee OTT PRIS J

2

2. Whether the government’s evidence was tainted by

allegedly illegal electronic surveillance, and whether the

district court properly refused to allow petitioners to

inspect internal communications of the F.B.1. purportedly

relevant to this claim.

3. Whether the district court properly admitted voice

identification testimony.

4. Whether petitioners were denied a fair trial by

pretrial publicity.

5. Whether petitioners’ federal prosecution, which

followed their state trial for gambling offenses, violated

the Double Jeopardy Clause of the Fifth Amendment.

STATEMENT

Following a jury trial in the United States District

Court for the District of Colorado, petitioners were

convicted of three counts of using a facility in inter-

state commerce (a telephone) with intent to conduct an

illegal gambling enterprise, in violation of 18 U.S.C.

1952 and 2. Petitioner Villano was sentenced to a concur-

rent term of imprisonment for one year and one day on

each count and was fined $2,250. The imposition of

petitioner Smaldone’s sentence was suspended, and she

was placed on two years’ probation and fined $2,250. The

court of appeals affirmed (Pet. App. A-1 to A-26).

The evidence at trial, which is set forth in detail

in the opinion of the court of appeals (Pet. App. A-2

to A-5), showed that petitioners assisted in managing

a bookmaking business in Denver, Colorado. Petitioner

Villano handled substantial betting on football and

basketball games with Denver residents, who testified

that he personally was in charge of collections and

payoffs (R VI 330, 332-334, 347-348, 350-354).

From November 1970 through February 1971, Frank

Amato worked as a telephone operator for a Denver

Feta

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3

bookmaker, taking wagers totalling between $5,000 and

$7,000 per day and providing line information. Upon

receipt of the bets, Amato relayed them to a woman

whose voice he identified as that of petitioner Smaldone.

Amato specifically recalled receiving telephone calls from

a bettor who referred to himself as “X-15,” who was

identified at trial as Fud Ferris (R V 102, 142-145, 147, 149,

150-151). In January 1971, Amato was arrested by

Colorado state authorities for gambling violations; his

bond was provided at the request and expense of petitioner

Villano (R V 148; R VI 302-303).

Richard Colgan was employed by petitione? Villano as

a telephone operator and was paid in cash by Villano

on a weekly basis. Colgan testified that he serviced

approximately 50 customers and received an average of

$25,000 to $35,000 in bets per week. After receiving

bets Colgan relayed them to a woman known to him as

Pauline, who received this information at a telephone

listed to “C. M. Smaldone” at a residence owned by peti-

tioner Smaldone (R V 154-155, 160-161; Gov't. Exs. 4-7).

If the sports schedules required by Colgan were late,

he would call petitioner Smaldone’s number and the

schedules would be sent to him. If a bettor desired to

exceed the $2,000 limit on any single bet, Colgan also

would call petitioner Smaldone and the decision to

accept or reject the large wager would be made by

petitioner Villano (R V 161-162).

The evidence of interstate telephone calls came from

Fud Ferris, a resident of Valentine, Nebraska. He

testified that during late 1970 and early 1971 he placed

bets with a Denver bookmaker, using telephone facilities

located in Valentine and North Platte, Nebraska. Ferris

stated that he had three Denver telephone numbers that

he would call and that he used code number X-15 when

placing all of his bets (R V 99, 100-102). Ferris also testified

4

that he was paid his winnings in Denver by a man known

to him as “Paulie” (R V 104, 108), which was petitioner

Villano’s nickname (R V 179, 186, 192; R VI 365).' The time

and place of each payment were previously arranged

during Ferris’s interstate telephone calls to Denver when

he obtained line information and placed bets (R V

100-105).

Several of the telephone calls made by Ferris were

corroborated by telephone company records. The

records, together with the testimony of Ferris, Amato,

and Colgan, showed that there had been at least 16

interstate telephone calls to numbers operated by Amato

and Colgan during the indictment period (Pet. App.

A-5, n. 4).

ARGUMENT

1. Petitioners claim (Pet. 12-20) that the evidence

was insufficient to establish violations of the Travel

Act, 18 U.S.C. 1952.

a. Petitioners’ initial contention is that the govern-

ment failed to connect them with what they characterize

as “the Amato or Colgan operations” (Pet. 12). As the

court of appeals correctly concluded (Pet. App. A-6), how-

ever, there was abundant evidence (see supra, pp. 2-3)

from which the jury could have concluded beyond a

reasonable doubt that petitioners supervised or at least

aided and abetted Amato and Colgan in carrying on the

unlawful activity alleged in the indictment.

b. Relying on Rewis v. United States, 401 U.S. 808,

petitioners next contend that the interstate contacts of

their operation were too minimal or incidental to violate

'Ferris could not positively identify petitioner Villano at trial

as the person who had paid him on these occasions (R V 104).

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5

the Travel Act. In Rewis, this Court reversed the

convictions of two operators of a lottery in Florida that

had occasionally been patronized by unsolicited bettors

from nearby Georgia. But the present case is distinguish-

able from Rewis for two reasons. First, unlike Rewis,

where only the customers of the lottery used interstate

facilities, here petitioners, through their agents, utilized

the telephone in interstate commerce as an integral part

of their illegal gambling operation. See United States v.

Sellaro, 514 F. 2d 114, 120 (C.A. 8), certiorari denied,

421 U.S. 1013. Indeed, Rewis cited with approval “cases

in which federal courts have correctly applied §1952

to those individuals whose agents or employees cross

state lines in furtherance of illegal activity.” 401 U.S.

at 813.

Second, the interstate contacts in this case were neither

infrequent nor incidental to the enterprise. On the

contrary, Ferris had been supplied with a code number

to conceal his identity and had used this code number

to make numerous interstate calls for the exclusive pur-

poses of securing line information, placing bets, and

arranging occasional payoffs in Colorado. The court of

appeals correctly observed (Pet. App. A-1G) that although

Ferris’s calls were a “relatively small part of the

gambling business handled by Colgan and Amatof,]

* * * there was repeated use of interstate communications

which produced a substantial volume of gambling.”

See, e.g., United States v. Eisner, C.A. 6, No. 75-1908,

decided April 14, 1976; United States v. John, 508

F. 2d 1134 (C.A. 8), certiorari denied, 421 U.S. 962;

United States v. LeFaivre, 507 F.2d 1288 (C.A. 4),

certiorari denied, 420 U.S. 1004.2 Accordingly, the

?There is no conflict between the decision below and the

interpretation of Section 1952 by the Seventh Circuit in United

6

evidence was sufficient to establish violations of the

Travel Act. See Erlenbaugh v. United States, 409 U.S.

239, 247, n. 21.

c. Finally, petitioners urge that the evidence failed to

establish that they knew of the interstate character of

their gambling operation and that the trial court erred

by instructing the jury that such knowledge did not have

to be proven (see R VII 466-467). It is well-settled,

however, that a conviction under Section 1952 does not

require proof of a defendant’s personal knowledge of the

interstate nexus. See United States v. Peskin, 527 F. 2d

71, 78 (C.A. 7), petition for a writ of certiorari pending

on other issues, No. 75-1514; United States v. LeFaivre,

supra, 507 F. 2d at 1297; United States v. Doolittle,

507 F. 2d 1368, 1372 (C.A. 5), affirmed en banc, 518

F.2d 500, petitions for writs of certiorari pending on

other issues, Nos. 75-500, 75-509, 75-513; United States

v. Colacurcio, 499 F.2d 1401, 1405-1406 (C.A. 9);

United States v. Hanon, 428 F. 2d 101, 108 (C.A. 8)

(en banc), certiorari denied, 42 U.S. 952; see also United

States v. Altobella, 442 F. 2d 310 (C.A. 7), and United States v.

McCormick, 442 F.2d 316 (C.A. 7). In Altobella, the only inter-

State nexus was a single $100 check which was mailed between

Illinois and Pennsylvania by the victim of an extortion scheme.

In McCormick, the defendant had placed an advertisement in a

local newspaper, a few copies of which were mailed to the paper's

out-of-state subscribers. Thus, both cases involved wholly incidental

interstate activity, caused by persons other than the defendants.

The absence of a conflict is further illustrated by recen! decisions

of the Seventh Circuit that have refused to apply Altobella

or McCormick to interstate activity that was engaged in by the

defendant or his agent or was essential to the operation of the

criminal enterprise. See United States v. Peskin, 527 F.2d 71 (C.A.

7); United States v. Rauhoff, 525 F.2d 1170 (C.A. 7).

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7

States v. Smaldone, 485 F. 2d 1333, 1348-1349 and n. 10

(C.A. 10), certiorari denied, 416 U.S. 936.3

This conclusion is reinforced by the decision in United

States v. Feola, 420 U.S. 671. In Feola, the Court held

that a conviction under 18 U.S.C. 111, which prohibits

assaults upon federal officers, does not require that the

defendant be aware of his victim’s official status, pri-

marily because the federal element is only jurisdictional,

but also because the contrary view would contravene the

plain language of the statute and would frustrate the

intent of Congress in enacting it. As the Ninth Circuit

explained in United States v. Roselli, 432 F. 2d 879,

890-891, certiorari denied, 401 U.S. 924, quoting from

United States v. Blassingame, 427 F. 2d 329, 330 (C.A. 2),

the same rationale is applicable here:

| The statute does not condition guilt upon knowledge

that interstate communication is used. The use of

interstate communication is logically no part of the

crime itself. It is included in the statute merely as

a ground for federal jurisdiction. The essence of the

‘Petitioner cites United States vy. Honeycutt, 311 F. 2d 660

(C.A. 4), and United States v. Barnes, 383 F.2d 287 (C.A. 6), in

support of his contention. But Honeycutt merely reversed a conviction

under Section 1952 because the evidence of the crime was insufficient,

not because the defendant had been unaware of the interstate nexus.

Indeed, the Fourth Circuit has emphatically endorsed the view that

no such knowledge is required. United States v. LeFaivre, supra. The

Sixth Circuit therefore stands alone in holding that knowledge of

interstate activity must be shown. United States v. Barnes, 383

F. 2d 287, certiorari denied, 389 U.S. 1040; United States v. Prince,

529 F. 2d 1108. Even that court, however, does not require proof of a

defendant’s actual knowledge. It is sufficient if a person charged

under Section 1952 has reason to know of the use of an interstate

facility. See United States v. Eisner, supra. Under the circumstances,

we believe that it is unnecessary for the Court to resolve this apparent

conflict between the Sixth Circuit and the ether courts of appeals

at this time. nar

8

crime is the [illegal] scheme itself. Nothing is

added to the guilt of the violator of the statute by

reason of his having used an interstate telephone to

further his scheme. There is consequently no reason

at all why guilt under the statute should hinge upon

knowledge that interstate communication is used. If

the wire employed is an interstate wire the require-

ments for federal jurisdiction are satisfied. It is

wholly irrelevant to any purpose of the statute that

the perpetrator * * * knows about the use of inter-

state communication.

2. Petitioners argue (Pet. 20-26) that their prosecution

was the product of two episodes of allegedly illegal

electronic surveillance and that the district court erred

in refusing to permit them to inspect internal com-

munications of the F.B.I. purportedly relevant to one

such episode. These contentions, which were thoroughly

considered and rejected by the district court and the court

of appeals (Pet. App. A-I5 to A-21), are insubstantial.

a. Petitioners’ claim that the federal investigation and

prosecution was tainted by electronic interceptions con-

ducted by Colorado state authorities relates primarily

to two reports that had been sent by the Denver police

department to the Denver F.B.I. office in 1971 and

1972 (Def. Exs. G and H). These reports contained

factual summaries of state cases filed against various

individuals other than petitioners and affidavits referring

to the so-called DeLuzio wiretap and to another state

wiretap.4

‘The pertinent facts relating to these interceptions were summarized

by the court below as follows (Pet. App. A-I5 to A-17) (footnote

omitted):

*** In February, 1971, the Denver police obtained a State

Court order to intercept telephone conversations at the residence

of one DeLuzio in Denver. During the wiretap, conversations

PEER 5d TPE EYAL TELM RE RS AIRS MRL FS ET ERNE ALG CTE TUNA, FINN HOM NTRS

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9

At an evidentiary hearing in the district court, Agent

Paul Bush of the F.B.I. testified that the first report

of defendants Smaldone and Villano were recorded. Villano’s

voice was also identified in a second State wiretap conducted

in 1972.

At the hearing on the motion to suppress Sergeant Mulnix

testified. Mulnix had been in charge of the State’s wiretaps.

He said that to his recollection, none of the tapes or transcripts

of the recorded conversations were ever furnished to federal

agents. He testified that on several occasions he had discussed

Villano and Smaldone with [F.B.1.] agents Malone and Bush

***and had informed them of the existence of the De-

Luzio wiretap. He said that the discussions were of a general

nature and that no FBI agent had ever requested the tapes

or transcripts of the wiretap.

* * * [Agent] Malone said that he first became aware that

Villano was involved in the investigation in March, 1971, when

he learned through a confidential informant in Colorado that

Villano was taking wagers at a certain location. The phone

number at this location matched [a] phone number obtained

[earlier] from the Nebraska FBI office.

It was also some time in March, 1971, that Sergeant Mulnix

had informed Malone of the DeLuzio wiretap, saying: “We are

picking up information that DeLuzio is involved with the

Smaldones in bookmaking.” (R II 135). However, Malone

testified that he had known since 1968 that defendants Villano

and Smaldone were involved in bookmaking activities. Malone

also said that as a result of information from the Nebraska

FBI and his Colorado informant, several persons were identified

and called before a federal grand jury. Smaldone’s involvement

in the gambling activities in question here was discovered

during testimony before the grand jury. Special Agent Bush

testified to the same effect. He also said that he had talked

with Sergeant Mulnix frequently. However, Bush’s only inquiry

concerning Villano was to ask Mulnix if there were any

indication of interstate conversations on the DeLuzio wiretap,

and Mulnix replied in the negative. Both Malone and Bush

testified that they had never listened to the tapes nor

read the transcripts of them (R III 140, 204). And they said

that none of the witnesses or evidence for this case developed

as a result of any information received through any wiretap

or electronic surveillance (R II] 182, 211).

10

of the surveillance had come into the F.B.I. office in

April 1971 and that he had looked through the report,

but that no investigation was made as a result of it.

Agent William Malone testified that the DeLuzio report

first came to his attention in May or June 1971, that

he had read it, and that it had generally referred to

conversations but did not contain the exact words that

were used. Agent Malone further stated that in 1972

Sergeant Mulnix of the Denver police informed him

that there had been another interception in which

petitioner Villano’s voice was overheard. Agent Malone

read the second case summary concerning that inter-

ception but took no action as a result of receiving the

report (Pet. App. A-17). Agent Malone also testified

in detail that the investigation of petitioners had begun

in February and March 1971 on the basis of information

supplied by an F.B.]. agent in Nebraska and by a

confidential informant in Colorado (Pet. App. A-16).

Assuming arguendo that the state interceptions were

illegal,’ petitioners’ claim of taint was effectively rebutted

by this testimony at the adversary hearing. The district

court found “no indication that there was any or is any

evidence that the government has obtained as a result

of the electronic surveillance which was conducted by

the Denver Police Department” (R III 241), and the court

of appeals correctly upheld this conclusion as “amply

supported” by the record (Pet. App. A-19). Petitioners

have made no “obvious and exceptional showing of

error” that would justify review of these factual deter-

minations by this Court. See Berenyi v. Immigration

Director, 385 U.S. 630, 635. .

‘Counsel for the government stated at the suppression hearing

that these interceptions “would perhaps not pass federal muster”

because they were not reported to the court (R II 120). See 18

U.S.C. 2518. Neither court below ruled on this issue, in light

of their finding that no taint had been shown. Pet. App. A-18 to

A-19 and n. II.

CW SR PEVR RIP IGNE MEY 94,19 IRE GION Dua Rie 22S OTRAS SW TS

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| sa

b. Similarly unfounded is petitioners’ contention that

the district court erred in refusing to permit them to in-

spect internal F.B.1. communications allegedly relevant

to their claim of taint.* Prior to trial, petitioners were

furnished with transcripts of the intercepted conversations

as well as with copies of the Denver police reports (Pet.

21). The F.B.1. interoffice communications at issue were

submitted to the district judge for an in camera examina-

tion (R III 165-166). He concluded that the documents bore

no indication of use by federal authorities of any improper

source, in particular the electronic surveillance by Denver

police (R III 237). The court of appeals also inspected the

materials and reached the same result. Pet. App. A-20,

n. 13.

Petitioners’ reliance on Alderman v. United States,

394 U.S. 165, is misplaced. Alderman held that surveillance

records as to which a defendant has standing to object

should be furnished to him directly, since the task of de-

termining relevance “is too complex, and the margin for

error too great, to rely wholly on the in camera judgment of

the trial court * * *” (394 U.S. at 182). The Court also

stated, however (394 U.S. at 184), that

disclosure will be limited to the transcripts of a

defendant’s own conversations and of those which

took place on his premises.

Since petitioners were given the transcripts of the

conversations in which they participated, the require-

ments of Alderman were satisfied. Indeed, the district

court’s and court of appeals’ in camera examination of

other documents provided petitioners with additional

safeguards not mandated by Alderman or other decisions

of this Court. See Alderman v. United States, supra, 394

: ' _— a

Petitioners refer to these communications as “airtels.” See Pet.

21; Pet. App. A-19, n. 12.

12

U.S. at 185; Taglianetti vy. United States, 394 U.S. 316,

317.’

c. Petitioners’ claims that certain electronic surveillance

conducted in 1964 tainted the government’s case and that

the trial court erred in declining to convene a hearing to

consider the matter are likewise without merit.

On the opening day of trial, the government reported

that a complete check through federal agencies showed

that in 1964 an Internal Revenue Service agent had

monitored petitioner Villano’s telephone calls and that

another I.R.S. agent had interviewed Villano while wear-

ing a recording device (R V 5-8). Petitioners contended

that these acts were illegal and moved for a hearing to

determine whether and to what extent the government’s

investigation had been tainted by them.

The district court’s denial of petitioners’ motion was

correct. The extensive suppression hearing held one month

earlier had established that the government’s evidence

had been developed entirely from an independent in-

vestigation begun in 1971, seven years after the I.R.S.

activities, and had been initiated and pursued through leads

provided by F.B.I. agents in Nebraska and by a confiden-

tial informant who was personally acquainted with

petitioners’ operation (R III 135). Thus, petitioners’ al-

legations of taint were squarely contradicted by the

"The court of appeals’ decision is not in conflict with United States

v. Huss, 482 F. 2d 38 (C.A. 2), on which petitioners primarily rely

(Pet. 23-24). In Huss, the tapes of the intercepted conversations were

destroyed and no transcripts had been made. The court, relying on

Alderman, concluded that the defendants should not have been re-

quired to depend upon the government’s summaries of the inter-

cepted conversations in order to demonstrate taint. 482 F. 2d at 50-51.

BLEED THROUGH

13

record.* As the court of appeals correctly observed (Pet.

App. A-21):

Agent Malone had previously testified he had no

knowledge of any electronic surveillance of the de-

fendants by federal agencies (R III, 164-65). There

was no showing of a connection or similarity between

Villano’s 1964 operations and the 1971 conduct under

prosecution. We must agree the request for the hear-

ing was properly denied.

Finally, we note that the recordings of petitioner Villano’s

conversations with the I.R.S. agent did not violate the

Fourth Amendment. United States v. White, 401 U.S.

745, 752-753. See also 18 U.S.C. 2511(2)(c).

3. Petitioners claim (Pet. 31-34) that the district court

erred in admitting voice identification testimony by

Amato, Colgan and Ferris without an adequate founda-

tion. This contention is both factually and legally incorrect.

Amato testified at trial that he had relayed wagers

for several weeks and that he had become familiar with

the voice of the receiving party, which he was “99 percent

sure” belonged to petitioner Smaldone (R V 147). Amato

stated that he could identify her voice by specific charac-

teristics, in particular its lower register (R V 147-148),

and that the basis for his identification was two personal

meetings that he had had with petitioner Smaldone

‘For example, the letter disclosing the I.R.S. activities to the pre-

secutor, ¢ »pies of which were made available to the court and defer:se

counsel (R V 6), also stated that the pen register used to monitor peti-

tioner Villano’s telephone conversations in February 1964 had pro-

duced “no intelligible information” (R V 7). Similarly, petitioners’

Suggestion (Pet. 25) that Agent Malone might have developed in-

formation from the I.R.S. investigation is rebutted by Malone's

testimony that while he knew from the early 1960's that petitioners

were involved in bookmaking, he had learned these facts from per-

sonal “observation and interviews” (R III 141-142).

14

(R VI 258-259). At the second meeting, Smaldone had

greeted him at the door of her home, had conversed with

him briefly, and had then spoken with her husband in

the next room (R VI 262-264).° This evidence clearly was

sufficient to establish a foundation for Amato’s identifi-

cation testimony. See Rule 901(b)(5), Fed. R. Evid.; United

States v. Turner, 423 F.2d 481, 484 (C.A. 7), certiorari

denied, 398 U.S. 967; United States v. Cox, 449 F.2d 679,

690 (C.A. 10), certiorari denied, 406 U.S. 934. Any doubts

about Amato’s ability to identify accurately a voice that

he had twice heard in person went to the weight, not the

admissibility, of his testimony. See United States v.

Rizzo, 492 F. 2d 443, 448 (C.A. 2), certiorari denied,

417 U.S. 944.

Petitioners’ objection to the testimony of Colrsan and

Ferris is also unfounded, since neither witness identified

petitioners at trial. Although Colgan testified that he re-

layed bets to a woman known to him as Pauline at a

certain telephone number, other evidence connected

that telephone number to petitioner Smaldone. See

p. 3, supra. Colgan did not identify petitioner as the

person with whom he spoke. Similarly, Ferris testified

that he had a telephone conversation with a man called

“Paulie” in which he was told not to worry about the F.B.1.

because “they didn’t know anything” (R V III-112). But

Ferris never testified that “Paulie’s” voice was that of

petitioner Villano.

4. Petitioners contend (Pet. 26-29) that they were

deprived of a fair trial because of prejudicial pre-trial

publicity. About two months before trial, petitioners moved

for a change of venue, alleging that there had been volu-

*Although Amato testified that he became extremely intoxicated

during his first meeting with petitioner, he stated that he had not

been drunk at the outset of the meeting (R VI 259-260).

BLEED THROUGH

|.

15

minous prejudicial publicity that would make a fair trial

impossible in Denver. The district court scheduled an

evidentiary hearing on the motion, at which six persons

affiliated with the local media were called by petitioners

(R II 10-26; 64-83). The substance of the testimony of these

witnesses was that there had been occasional newspaper

reports or broadcast stories concerning either or both peti-

tioners over the past several years. After considering this

evidence together with two public opinion surveys

that petitioners also had submitted (Def. Exs. C, E), the

district court concluded (R III 238):

[T]here is nothing that has been presented to me

yet that shows this case could not be tried in this city

and be tried by a jury who have not been subject to

barrage or much publicity concerning the named de-

fendants. This is always subject to change, of course.

If it develops at the time the jury is being impaneled

that we cannci get a jury composed of fair minded

men and women who are not familiar with either

of these individuals or for that matter the Smaldone

surname or who have not formed any opinion in the

case, why, if that develops at trial, then we will go

no further in this city.

The court’s determination that a fair and impartial

jury could be selected was fully borne out by the voir dire

examination. Each of the jurors and alternates eventually

impaneled stated under oath during the extensive voir

dire that he had neither heard nor read about the case and

that he was not familiar in any way with petitioners’

names (R V 55).!° Additionally, each juror responded af-

firmatively when asked by the court if he could decide

"Of 85 prospective jurors questioned during. voir dire, 17 (or 20

percent) had heard or read about the case and were excused. This

hardly indicates “a community with sentiment so poisoned against

petitioner[s] as to impeach the indifference of jurors who displayed

16

the case fairly and impartially (R V 58-59). Thus, the jury

was fully qualified under the standard of /rvinv. Dowd, 366

U.S. 717, 722-723. See also Murphy v. Florida, 421 U.S. 794,

799-800.

This Court has consistently held that the defendant

bears the burden of demonstrating that he has not received

a fair trial. “[T]he burden of showing essential unfairness

[must] be sustained by him who claims such injustice and

seeks to have the result set aside, and [must] be sustained

not as a matter of speculation but as a demonstrable

reality.” United States ex rel. Darcy v. Handy, 351 U.S.

454, 462, quoting Adams v. United States ex rel. McCann,

317 U.S. 269, 281. Petitioners have failed to meet their

burden of showing that the trial judge abused his discre-

tion in proceeding to trial once an impartial jury had been

selected.

5. Finally, petitioners urge (Pet. 29-31) that their federal

prosecution violated the Double Jeopardy Clause of the

Fifth Amendment because they had already been pro-

secuted by the State of Colorado for gambling offenses

that occurred near the end of the period covered by the

federal indictment.'! This claim is answered by the

no animus of their own.” Murphy v. Florida, 421 U.S. 794, 803. In

Murphy, for example, 20 of 78 veniremen (or 25 percent) not only

had heard about the case but had indicated an opinion of the defend-

ant’s guilt, and in Beck v. Washington, 369 U.S. 541, 556, the Court

affirmed the cenviction although 14 of 52 veniremen (or 27 percent)

had expressed some bias. Compare /rvin v. Dowd, 366 U.S. 717, 727

- (90 percent of prospective jurors entertained some opinion as to guilt).

Moreover, mere knowledge about a case does not disqualify a juror

and is not the equivalent of bias. See /rvin v. Dowd. supra, 366 U.S.

at 722-723.

''Petitioners were convicted in state court of keeping a gambling

room and gaming devices, gambling for a livelihood, and conspiracy

(R 1X 42-55).

BLEED THROUGH

17

Court’s decisions in Bartkus v. Illinois, 359 U.S. 121, and

Abbate v. United States, 359 U.S. 187, which held that

prosecutions by both the federal and state governments

do not constitute double jeopardy. Petitioners in effect

urge the Court to overrule these decisions, a course that

would seriously erode concepts of federal and state sover-

eignty that are the essence of our federal system.!2

In any event, since petitioners were tried in state

court for gambling offenses that obviously differed from

the brokerage of interstate wagers for which they were

prosecuted by the federal government, and which took

place at a different period of time,'} their federal trial

would not have violated the Double Jeopardy Clause

even if that clause did not allow successive state and

federal prosecutions for the same offense. '4

'?Waller v. Florida, 397 U.S. 387, upon which petitioners rely (Pet.

29-30), is an application of this principle, holding that municipalities

(which are creatures of a State) are not separate sovereignties from

the States for double jeopardy purposes.

'5Two of the three federal counts concerned a time period prior

to the occurrence of the acts prosecuted by the State, and the third

count only partially overlapped.

'4Indeed, because petitioners’ federal prosecution did not involve

substantially the same acts punished by the State, authorization from

the Department of Justice was not required under Departmental

practices.

18

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

RosBertT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

WILLIAM G. OTIS,

Attorneys.

JUNE 1976.

DOJ-1976-06

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