Transcript of Record — United States v. Fabrizio

Supreme Court of the United States

OCTOBER TERM, 1965

No. 860

| UNITED STATES, APPELLANT

v8.

ANTHONY L. FABRIZIO

ON WRIT OF CERTIORARI TO THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT OF

NEW YORK

INDEX

Original

Record from the United States District Court for

the Western District of New York

Attachment—,Affidavit of Irving S. Rinde....

Exhibit “A”—Acknowledgment of pur-

chase—New Hampshire 1st Sweep-

stakes Race, September, «1964 _.........

Decision and order, Burke, J. ................................

Notice of appeal to the Supreme Court of the

United States

Clerk’s certificate (omitted in printing) _.........

Order noting probable jurisdiction

NA a oo pp

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[fol. 1]

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF NEW YORK

' No, 8694-C

THE UNITED STATES

v8.

ANTHONY L. FABRIZIO

Attorneys

For U.S.:

John T. Curtin

For Defendant:

A. William De Fillippo

Transporting in interstate commerce papers to be used

_in wagering, in violation of Section 1953, Titlé 18, U.S.C.

_ CRIMINAL DOCKET

OFFENSE: 8/24/64 1 Count

STATISTICAL RECORD COSTS

J.S. 2 mailed Oct. 5 1964 Clerk

J.S. 3 mailed Marshal

Violation Docket fee

Title 18

Sec. 1853

DOCKET ENTRIES

DATE :

1964°

Sept. 8 Filed indictment

3 J.S. 2 made

14

16

Nov. 4

”

Filed Commissioner’s transcript and $500 cash bond—

surety—Joseph P. Pirozzolo, 405 Holecek Ave., Elmira,

NY.

Defendant being duly arraigned enters a plea of not

guilty

Filed Court Stenographer’s minutes of 9/14/64

Filed Notice of Motion ,to Permit Inspection of Grand

' Jury Minutes and Supporting Papers, and Notice of

Motion for Bill of Particulars and Supporting Papers,

returnable at U.S. Court House, Rochester, N.Y., 9/30/

64 at 10:00 a.m.

File Government’s bill of Particulars

‘Filed Defendant’s notice of motion to dismiss indictment,

returnable at Rochester, N.Y., 10/13/64 at 10:00 a.m.

Motion to dismiss indictment—adjourned 11/9/1964

Motion by defendant to dismiss indictment—adjourned

12/14/64

Motion by defendant to dismiss indictment—adjourned

to 12/28/64

Motion by defendant to dismiss indictment—adjourned to

1/11/65

Motion to dismiss indictment—submitted on papers

"Filed decision and order dismissing the indictment—

BURKE, J. :

J.S. 3 made

Filed Govt’s. notice of appeal to the Supreme Court

Appeal

[File Endorsement Omitted]

[fol. 4]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

May 1964 Term

te No, 8694-C *

THE UNITED STATES OF AMERICA

v8.

ANTHONY L. FABRIZIO

Vio. Title 18, U.S.C., Section 1953

INDICTMENT—Filed September 3, 1964

The Grand Jury charges:

That on or about the 24th day of August, 1964, AN-

THONY L. FABRIZIO, knowingly did carry in interstate

commerce from Keene, State of New Hampshire to El-

mira, State of New York, in the Western District of New

York, records, papers and writings, to wit: 75 acknowl-

edgements of purchase for a sweepstakes race of the State

of New Hampshire, to be used, and adapted, devised and

designed _ for use, in a wagering pool with respect to a

sporting*tvent, that is: a sweepstake race of the State of

New Hampshire, as he then well-knew; all in violation of

Section 1953 of Title 18, U.S.C.

/s/ John T. Curtin

United States Attorney

A TRUE BILL:

/8/ Donald H. Weeker

Deputy Foreman

caecc cr nccrnrmncnr rere sca

“4

[fol. 5]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

No. 8694

[Title Omitted]

‘9

MOTION TO DISMISS INDICTMENT—Filed October 12, 1964

The Defendant moves that the indictment be dismissed

on the following grounds:

1. That the indictment does not state facts sufficient

to constitute an offense against the United States.

2. That the indictment and the Bill of Particulars

which were served upon the attorneys for the Defendant

herein do not set forth facts sufficient to charge the De-

fendant with the violation of U.S.C. Title 18, Section

1953.

8. That annexed hereto and made a part hereof is a

copy of the indictment and Bill of ‘Particulars segved by

the United States Attorney, J ohn T. Curtin, and Affidavit

of Irving 5. Rinde:-

DE FILIPPO BROTHERS

Attorneys for Defendant

Office & P.O. Address

408 East Church Street

Elmira, New York

[fol. 6]

ATTACHMENT TO MOTION To DISMISss INDICTMENT

8694-C

BILL OF PARTICULARS

The United States of America in answer to the demand

made by the defendant for a bill of particulars dated Sep-

tember 21, 1964, states as follows: vd

kntiyit is claimed by the United States that defendant

§ 1958, T. 18, United States Code, 75 written acknow!-

United States charges that the defendant violated § 1958,

Title 18, United States Code,

Dated: Buffalo, New York, September 24, 1964,

JOHN T. CURTIN

United States Attorney in and for

the Western District of New York

Attorney for Plaintiff

Office and P. O. Address -

502 United States Courthouse

Buffalo, New York 14202

[fol. 7]

ATTACHMENT TO MOTION To DISMISS INDICTMENT

AFFIDAVIT OF IRVING S. ‘RINDE

STATE OF NEW YORK ?)

) ss:

COUNTY OF CHEMUNG )

IRVING S. RINDE, being duly sworn, deposes and

says:

That he is an attorney at law and is associated with

the firm of DeFilippo Brothers, attorneys for the Defend-

ant herein.

That the Defendant herein is charged only with the

carrying in Interstate Commerce in violation of Section

1958, T. 18 United States Code, seventy-five (75) written

. acknowledgments of purchase of State of New Hamp-

shire first sweepstake race of September, 1964.

That for the purpose of this motion, the Defendant

admits that he carried in his possession from the State of

New Hampshire to the State of New York seventy-five

(75) written acknowledgments of purchase. That a copy

of said acknowledgment is attached hereto and made a

part hereto and marked Exhibit “A”.

That the United States does not charge the Defendant

with any violation of any State laws, ordinances or rules.

That Anthony L. Fabrizio, the Defendant herein, is an

employee of the Elmira Star-Gazette and has been em-

ployed by them for a period of approximately thirty-nine

$399 8] years. That he has no previous criminal record

0 ture,

he is charged with violation of 1953, Title 18,

.Geg“interstate transportation of wagering parapher-

nalia”. Said section reads “that whoever, except a com-

mon carrier in the usual course of its business, know-

ingly carries or sends in interstate or foreign commerce

©

Re EA NEG Ay Qe eee 7 > Tome

any record, paraphernalia, ticket, certificate, bills, slips,

token, paper, writing, or other device, used or to be used

or attached, devised or designed for use in (a) bookmak-

ing; or (b) wagering pools with respect to a sporting

event; or (c) in a numbers, policy, bolita, or similar

game shall be fined not more than $10,000.00 or impris-

oned for not more than five years or ”. That the

effective date of this law was September 18, 1961.

That the purpose and intent of this law is‘ set forth in

1961 U.S. Code Congressional and Administrative News

at page 553 which states “an act to provide means for the

Federal Government to combat interstate crime and to

assist the state in the enforcement of their criminal laws

by prohibiting the interstate transportation of wagering

paraphernalia”.

That at the time of the passage of this bill, Robert F.

Kennedy, Attorney General, addressed the House of Rep-

resentatives at Washington, D.C., which address is set

forth in 1961 U.S. Code Congressional and Administra-

tive News at page 2636. That the intent as set forth in

said address was to provide the Federal Government with

another tool to combat forces of organized crime. Attor-

ney General Kennedy further stated in his address “book-

makers and lottery and policy operators presently thrive

[fol. 9] on wide scale interstate operations. State law

enforcement agencies have been handicapped ‘by jurisdic-

tional limitations to deal with such operations and the

Federal Government is icapped by lack of statutory

authority to assert its full %

That subsequent thereto and on or about the 30th day

of April, 1963, the State of Hampshire put into ef-

fect a state lottery which is controlled by lottery commis-

. Sion of the State of New Hampshire and at its head is

a former agent of the F.B.I. by the name of Edward J.

Powers, who headed the F.B.I. New England operations.

That the purpose of Section 1958 was to help states

enforce their laws, and New. Hampshire as a soverign

state has passed a lottery law where persons can lawfully

purchase tickets. There are no provisions which make

it a crime of any nature for a person to have in his pos-

session seventy-five written acknowledgments of purchase

of the State of New Hampshire sweepstakes race of Sep-

tember, 1964. That the purpose of the statute is to sup-

press gangsters and professional gamblers and to prevent

them from setting up a pool of their own and to make a

profit out of gambling. The purpose and statutory intent

of the statute was to help states enforce their own laws,

but no where has the Defendant violated any laws of the

State of New Hampshire, Vermont or New York.

The further purpose of the statute was to reach people

who were part of a gambling or lottery enterprise. The

Defendant was not any part of the sweepstakes of New

Hampshire. Sweepstake tickets are sold only in New

[fol. 10] Hampshire. The acknowledgments which were

carried by Mr. Fabrizio were not wagering parapher-

nalia. They had nothing to do with the sweepstake enter-

prise and were in no way connected with the enterprise.

The carrying in interstate commerce of the acknowledg-

ments that are given to customers who purchase said

sweepstake tickets has nothing to do with whether or not

the customer who has purchased said ticket will get a

prize. The acknowledgment need not be retained. It is

valueless. The entire transaction takes place in the State

-of New Hampshire when the customer goes there and, .

within the state, he buys his ticket. The ticket remains

within the confines of the state and payment is subse-

quently made within the State of New Hampshire. This

would be wholly a state matter and would have no effect

on interstate The intention of the acknowl-

edgment is to be name and address is correctly reg-

i ew pshire oe in New Hamp-

shire. .

It is therefore respectfully reeled that the Court

grant the Order dismissing the indictment herein.

' /s/ Irving S. Rinde

Sworn to before me this 9th day of October, 1964.

/s/ Esther L. Mace

ESTHER L. MACE

Notary Public—State of New York

No. 08 7648240—Chemung County

Commission Expires March 30, 1966

| fol. 11]

EXHIBIT “A” TO AFFIDAVIT

10

[fol. 12]

[File Endorsement Omitted]

[fol. 18]

[File Endorsement Omitted]

(fol. 14]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

8694-C

UNITED STATES

v8.

ANTHONY L. FABRIZIO

John T. Curtin, United States Attorney,

for the United States

De Fillipo Brothers, Attorneys for Defendant

DECISION AND ORDER—October 5, 1965

Motion by defendant to dismiss the indictment.

The charge in the indictment does not come within the

purpose of Section 1953 of Title 18, United States Code,

as disclosed in the legislative history of the Act. House

Report No. 968, with attached documents to accompany

Senate 1657, United States Code Congressional and Ad-

ministrative News, Volume 2, 87th Congress, First Ses-

sion, pages 2634-2637.

Motion to dismiss the indictment is granted. So ordered.

/s/ Harold P. Burke

; HAROLD P. BURKE

U. S. District Judge

(fol. 15]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

8694-C

[Title Omitted}

NOTICE OF APPEAL TO THE SUPREME COURT OF THE

UNITED STATES—Filed November 4, 1965

I. Notice is hereby given that the United States hereby

appeals to the Su e Court of the United States from

the order entered 5, 1965 dismissing the indict-

ment charging the defendant with a violation of Title 18,

U.S.C. § 1953.

This appeal’is taken pursuant to Title 18, U.S.C.

3731.

II. The clerk will please prepare a transcript of the

record in this cause for transmission to the Clerk of the

Supreme Court of the United States and include in said

transcript the following:

1. Indictment

2. Motion to dismiss indictment and supporting papers

8. Decision and orJer of the Honorable Harold P.

Burke filed on October 5, 1965.

4. Notice of appeal.

III. The following questions are presented by the ap-

peal: Whether the carrying in interstate commerce from

New Hampshire to New York of acknowledgements of

purchases of chances on a sweepstakes race of the State of

New Hampshire, which acknowledgements are alleged to

be used, adapted, devised and designed for use in a wag-

ering pool with respect to a sporting event, is an offense

within 18, U.S.C., 1953, which prohibits the carrying in

interstate commerce of “any record, paraphernalia, ticket,

certificate, bills, slips, token, paper, writing, or adapted,

es

12 :,

(fol. 16] devised or designed for use in * * * wagering

pools with respect to a sporting event.”

Dated: Buffalo, New York, November 4, 1965.

/s/ John T, Curtin

JOHN T. CURTIN

United States Attorney in and for

the Western District of New York

Office and Post Office Address : Ad

502 United States Courthouse

Buffalo, New York 14202

[PROOF OF SERVICE (omitted in printing) ]

(fol. 17]

[File Endorsement Omitted]

[fol. 18] | |

[Clerk’s Certificate to foregoing

transcript omitted in printing]

' ee,

{

nor neemanmnne ee i ll ee) ae

(fol. 19}

SUPREME COURT OF THE UNITED STATES

No. 860, October Term, 1965

UNITED STATES, APPELLANT

/

v.

. ANTHONY L. FABRIZIO

ORDER NOTING PROBABLE JURISDICTION—

February 21, 1966

APPEAL from the United States District Court for the

Western District of New York. |

The statement of jurisdiction in this case having been

submitted arid considered by the Court, probable jurisdic-

tion is noted and the case is placed on the summary cal-

endar. _

8. 8, eovennwent paintine orice; 1966 _ afie74 = 690