Petition for Writ of Certiorari — Shaffer v. United States

pee are

ant Was sentenced to concurrent four year prison terms

under the first four counts, to a one year consecutive term

of imprisonment under Count V, making a total five year

term and was fined $10,000 on Count 1, $10,000 on Count IT

and $9,000 on Count V for a total fine of $25,000 (D. A.

1os2-1591).*

The evidence adduced by the government follows: On

September 1, 1957, defendant Wyatt, a resident of Terre

Haute, Indiana, leased from one Traum, who operated the

Manor House Restaurant at 673 Wabash Avenue in Terre

Haute, some adjoining third floor premises at 6714 Wa-

bash Avenue for September 1 to December 31, 1957 (D. A.

396, 401-402, 404, 547-548, 696). Soon thereafter, Wyatt

obtained telephone service at these premises (D. A. 314,

519, 321), together with credit cards for himself, defendant

Shaffer and three apparently fictitious names (D. A. 348-

SoZ). He also obtained installation of a ticker tape sports

service (D. A. 408-409, 412-415). On September 15, de-

fendants Shaffer, Horwick, Jacobson and petitioner Tamer

registered in) Terre Haute hotels (D. AL 371-873, 389),

Shatfer and Jacobson occupying rooms reserved by Wyatt

(D. A. 366, 375). On September 21 petitioners Share and

Gordon also registered inca Terre Haute hotel, as did the

defendant Sumuer on September 26 (D. A. 392-303, 37s-

379). All of the defendants remained so registered until

after the premises were raided on November 29, 1957, ex-

cept petitioner Tamer who left) on November 26, 1997

(D. A. 382, 391, 394).

,

On September 12, 1957, Wyatt obtained a’ gambling

stamp from the District Director of Internal Revenue (Ex-

hibit 1), for his business at 671%. Wabash Avenue (1D. A.

998-303, 238). He also filed monthly wagering excise tax

returns, for September, October and November, 1957, dated

= The prison -entences of Jacobson and Sumner were suspened.

October 30, November 30 and December 31, 1957, respec-

tively (Exhibits 2, 3 and 4: D. AL 239-240, 44-94).

Evidence was admitted that no other wagering stamps

were obtained or returns filed by anyoof the defendants

or any partnership consisting of any of them, either be-

fore or after their arrest (D. A. 221-237, 258-263, 265, POT),

Defendant Shaffer arranged with the Kaplan Sports

Service for its mailing direct to his clients its bi-weekly

handicapping service (D. A. 1156-1159, 1162-1163, 1167,

1170, 1170-1171, 11738-1174), and defendant Horwick ar-

ranged with this Service for one “Joe F."* to pick up

copies of its service, as he had done in past vears (D. A.

1171-1172, 1182-1183). None of the other defendants pur-

chased any of its service (D. A. 1166, 1177-1178, 1180-

1181).

On October 2, 1957, defendant Wyatt opened a small

bank account in a local bank in the name of Wyatt Serv-

ice Company, and mail was received in that name both at

6714 Wabash, which was kept locked (D. A. 450-451)

and at the Manor House Restaurant (D. A. oot-042). The

customer usually indicated on the inside of the jetter the

particular defendant to whom the money was to go, which

was In all cases either Shaffer or Horwick (D. A. 938-084),

The postal authorities, who had been alerted and muain-

tained a mail watch on the 6714 Wabash address, could

only identify Horwick as having mailed letters, although

another unidentified person assisted on one occasion (D. A.

474-480, 483).

The porter of the Manor House Restaurant cleaned the

671'2 Wabash Avenue premises (D. A. 546) and delivered

food there (D. A. 949-050, 508), being paid only by Wyatt

and Shaffer (D. A. 561-062, 565-566). He saw slips of

* The last return was admitted only against Wyatt (D2 A. 249.

284-285, 1399-1400, 1491).

—

paper (D. A. 548-549), heard telephones ring, and saw

some of the defendants take notes (D. A. 553, 555, 560,

O61).

The waitresses and employees at the Manor House

Restaurant saw the defendants eating meals there (D. A.

489-494, 498-509, 915-527), and revenue agents observed

the defendants on oeceasion enter and leave the 671!.

premises (D. A. 568-602, 612-664). Fifty-seven persons

testified they placed bets by telephone at the 671'. Wa-

bash Avenue premises, most of whom only dealt) with

defendant Jules Horwick (D. A. 848, 901, 915, 924, 929,

941, 943-944, 945, 968, 987, 989, 992, 1001, 1003, 1013-1014,

1016-1017, 1019, 1032, 1039, 1053, 1068, 1081-1082, 1116,

1118, 1141, 1206, 1209, 1255, 1276, 1277), or defendant

Shaffer (D. A. 852, 938, 970, 973, 977, OS1, 1015, 1051, 1047,

1076, 1182, 1147, 1192, 1198).

On November 29, 1957, federal agents, after obtaining

a search warrant, raided the premises. They waited until

they saw Horwick leave the premises, at which time they

restrained him and obtained the keys to the premises

from him. They testified that, when arrested by them, he

dropped the keys to the pavement, which they picked up

(D. A. 695-696, 706-709, 805-807, 825-827). The agents,

with guns drawn (D. A. 783, 822-825, 835) and without

identifying themselves, used the keys to obtain: entrance

to the premises (D. A. 828, 837-83%), where they found all

the defendants, except: Horwick, whom they arrested) on

the street, and Tamer, who had left the business (D. A.

709-779, SOS). They seized everything in’ the premises.

Of the items seized, Exhibits 123 through 175 were ad-

mitted into evidence (D. A. 713-769). | Newspaper re-

porters, even from Indianapolis, either accompanied the

officers or appeared during the raid (D. A. 62, 780-782).

Among the papers seized and admitted in evidence were

G11 betting slips (D. A. 759-740, 745-748), covering the

last few days of the business, some of which were in the

handwriting of each of the defendants (ID. AL 1559-1393).

‘An addition to the accounting records kept by defendant

Wyatt (Exhibit 172), which conformed to that which he

reported for September and October, 1957 (Exhibits 2, 3,

12C and 172D),. two sets of summary accounting records

of past winnings and losses, still not paid, were found,

one of these (Exhibit 137), totaled $1,678,495 (DD. A. 12S9-

1291) and the other (Exhibit 138) totaled $166,212 (D. A,

1292-1293). An Agent witness testified that in his opinion

these records indicated that a total of $2,895.28 in LOSS

wagers had been accepted at 671! Wabash Street during

September, October and November, 1957) (D. A. 1302-

1305).

In his lengthy charge (D. A. 1458-1559), to which ex.

ceptions were taken (D. A. 1559-1576, 1442-1452), the trial

Judge allowed the jury to convict any defendant if he

were a mere employee who did or did not receive wagers

providing such employee was an aider or abettor of a

partnership consisting of any two of the defendants (D.

A, 1543-1544, 1549-1551, 1540-1542). The jury was also

told that a conspiracy is a form of partnership and that

similarity of conduct and association of defendants with

each other is a fact which may be considered in’ deter-

mining if there was a conspiracy (D. A. 1922). The jury

was permitted to consider the evidence and euilt. of a

defendant on one count for the purpose of determining

his intent on the other counts (D. A. 1490),

Prejudicial publicity on the eve of trial. Newspaper

articles were published on the week-end before trial which

commenced on June 22, 1959. Aecording to the news-

papers on June 20, 1959, the United States Attorney held

a conference with reporters in a Terre Haute Hotel room

(Exhibit F) in which he stated that he had an ‘‘over-

whelming mass of evidence’’ and predicted) that) **his

sis NW pee

evidence [was] strong enough to warrant convictions

against all eight defendants’? (Exhibit B). He also ‘said

he [would] call 200 witnesses, most of them wealthy bet-

ters and bookies who paraded before a grand jury last

summer in the much ballyhooed probe’*; he promised new

witnesses including ‘‘nationally known persons closely

connected with the sporting field’’; he said this was the

‘‘most important case ever to be tried in this district

or ‘fever to be aired anywhere’’; he reported that an

observer from the Department of Justice would be present;

he stated that he hoped to cut the trial to six weeks, but

that the case would still cost the Government $100,000;

he said that he would oppose separation of witnesses; and

he implied that he might call the local Mayor and Chief

of Police whom he inferred were in on the gambling enter-

prise (Exhibits B and D). The United States Attorney

also estimated that the betting center took in millions —

although he could not prove that amount (Exhibit C),

and that the Government had already spent $35,000) in

preparing the case (Exhibit D).

The article appearing across the top of the front page

of the Indianapolis Times, on the Saturday before the

trial, contained the following description of the defend-

ants (Exhibit F); ‘Charles L. (Buek) Sumner, who was

Democratic sheriff of Marion County in 1981-34. Joey

Jacobs (Joseph Jacobson), longtime Indianapolis — pro-

fessional gambler. Leo (Bookie) Shaffer. Chicago ex-

conviet, who operated the syndicate in Canada for several

vears before moving it to Terre Haute last Septembe..

Jules Horwick, Chicago, who ran the syndicate with Shaffer

until the Canadian Mounties raided it in 1956. Philip

(Flippy) Share, Minneapolis and Las Vegas, an ex-con-

vict, who beat the rap on two murders and several bank

robberies. Irwin Gordon, Las Vegas gambler. James

Tamer, Detroit and Miami, previously convicted of bank

robbery and gambling. Eddie M. Wyatt, Terre Haute,

a pe

longtime Terre Haute tavernkeeper who served time in

Leavenworth with Share and Shaffer." The article in the

Indianapolis Star carried pictures of the defendants, the

caption to which referred to them as gamblers and. ex-

convicts (Exhibit B).

The Monday, June 22, Terre Haute Star, where the case

was going to trial, in addition to contaming statements

attributed to the U. S. Attorney, stated (Exhibit) D):

‘The defendants are: Leo Shaffer, Chicago, known among

his associates as ‘bookie’. He was fined $10,000 and costs

after pleading guilty to operating a Winnepeg, Canada,

gambling syndicate in the Fall of 1956. Jules Horwick,

Chicago, arrested with Shaffer by Canadian authorities

and fined $10,000 and costs. (. LL. *Buek* Sumner, In-

dianapolis, sheriff of Marion county from 19231 to 1934

and reportedly engaged in various forms of gambling for

a number of years. Joseph Jacobson, Indianapolis, alleg-

edly involved in gambling most of his adult life. KE. M.

Wyatt, operator of Terre Haute clubs and the man who

is supposed to have rented the third-floor hideout, Irwin

Gordon, Las Vegas, Nev., the voungest and presumably

least experienced of the defendants. Phillip Share, Las

Vegas, James Tamer, Miami Beach, Fla."*

All newspapers, radio and television: stations carried

stories (D. A. 122, 123, 127, 151, 156), but all of them were

not available to petitioners in the short time before the

hearings.

The U. S. Attorney asserted that there had been no

proof as to what information he gave the press but) he

admitted talking to the press about the case and deemed

it his duty to do so (D. A. 108). He also admitted talking

to the press about the case in oral argumert in the court

below.

Before the trial began, on Monday, the defendants

moved for a eontinuance and for a transfer (D. A. 87-90),

ies WS

After hearings (ID. A. 91-114), the court overruled them.

(1). A. 108-112).

Of those who were asked, 40 of 43 veniremen had been

exposed to newspaper articles or broadcasts about the

ease (D. A. 115-211, D. A. 207-9). Two of the three who

had not seen articles were caused to be removed by the

tovernment for cause, on other grounds (D. A. 138-139);

the other served as an alternate juror. A few veniremen

were dismissed before reaching the matter (D. A. 206,

978, 303-304). Of the 40, 29 stated that they had been

exposed to newspaper articles or television broadcasts

on the week-end before trial (Armstrong, D. A. 115;

Lewis, ID. A. 119; Bosse,‘ ID. A. 122; Cissa, D. A. 125;

Clark, D. A. 126; Conlin, D. A. 127; Buchanan, DP. A. 147;

Carter, |). A. 151; Emswiler, 1D. A. 152; Girton, ID. A. 154;

Gladish, D. A. 156; Hasler, D. A. 161; Bain, D. A. 164;

Johnston, D. A. 172; Buteher, D. A. 178; Crosby, D. A.

183-184; Pisher, 1). A. 185; Plint, 1). A. 188: Ford, D. A.

91: MeClain, D. A. 195; Hartzburg, D. A. 195-196: Her-

stine, D. A. 197-198; Hoke, D. A. 200; Galligton, D. A. 202:

Cain, D. A. 204; King, D. A. 206; Milan, D. A. 207; Quin-

ette, D. A. 209; Pruitt, D. A. 211).

The answers of three are not clear on whether they

had seen or heard week-end publicity (Curtis, D. A. 129;

Dodd, D. A. 130-151; Gowery, D. A. 160). Two veniremen

who had seen articles were dismissed for talking with

interested parties without. testifving whether they had

read papers over the week-end (Burnett, D. A. 176-177;

Boyle, D. A. 207-209). Only six of the 40 affirmatively

said they had not been exposed to articles or newscasts

over the week-end, but had seen earlier articles (Black,

)D. A. 120; Duling, D. A. 133; Embree, D. A. 135; Johnson,

I). A. 168; Foster, D. A. 175; and Jewell, D. A. 167). All

4 The veniremen whose names are in bold type served on the

regular jury.

of the articles published in the area from which the jury

was drawn were not available to defense counsel in the

short time before trial, and were not introduced ino evi-

dence (D. A. 122, 123, 127, 151, 156). Specific information

on to what had been read was not clicited by the Court

(D. A. 127, 131, 195).

The Court below, in affirming the convietions, stated

that ‘‘there is no question but what the material circulated

through the press and other communication media con:

tained statements prejudicial to the defendants’’ but that

the record does not show that the ‘prejudicial material’

Was generated by the government. It further held) that

of the twelve jurymen who trie? the case only five had

seen the articles introduced in’ evidence containing the

‘prejudicial material’? and that four of those disclaimed

recalling what they had read. It also held that. the trial

Court had) offered defendants an unlimited namber of

additional peremptory challenges and that defendants had

declined to exereise them,

What occurred with respect to additional peremptory

challenges is as follows (D. AL DSO-190):

“The Court: The Court in the pre trial conference

with Counsel here, TP believe it was April or May the

entry is, the Court tiformed Counsel because of the

multiple defendants that were involved ino this case

for good cause shown he would grant additional ehat-

lenges peremptorily because of the multiple defendants

and beeause of the desire of the Court to obtain a

fair and impartial jury, EF would want the defendants

to reflect at this time and review the entire 12 jurors

that are in the box and inform me if there are any of

them that vou would wish to implore the Court. to

exercise in addition to the ordinary challenge.

“Mr. Davies: So far as my clients are concerned,

there would be none on those grounds.

a

‘‘The Court: Understand, you are not surrendering

the existing motion to the whole panel and those that

read the newspaper.

“Mr. Glazer: Could we have a moment?

“The Court: Yes. You just review them and if

there are some you don't like the color of their eyes

or something, let's get rid of them.

“Mr. Glazer: Just so the record is clear as far as

the 12 are concerned, we do not want any additional

peremptorial challenges for the reason from all the

jurors we have examined, they have, practically all

of them read the newspaper and it would be impos-

sible—-—

**The Court: (Interposing) We don’t need to repeat

that. You have your standing objection to that.

‘*Mr. Shenker: Let the record show we are renewing

our request to the challenges for canse to the entire

panel for the same reasons we gave before,

“The Court: Yon understand the Court has reeog-

nized that. I stand on that order, but what IT have

this time afforded you is an opportunity to review

your jurors. If for any other ground you don’t like

the way their ears set in-

“Mr. Glazer: (Interposing) The only other thing,

vour Honor, | would like in view of all the voir dire

examination at this time, would like to renew our

motion for continuance.

“The Court: At this time, before the jury is sworn

to try this case, Counsel again renews their motion

for a continuance heretofore heard.

“Mr. Glazer: And we are adding to that the testi-

mony on the voir dire examination im support of those

motions.

“The Court: All right.

“Mr. Glazer: Also our motion for a transfer.

“The Court: Let the record show there will be the

same ruling of the Court as on the prior motion.

oo Ft

Does that make your record, gentlemen?" (Emphasis

added.)

Subsequent attempt to select alternate jurors unexposed

to the newspaper publicity was even less successful than

that of the regular jury. Of the twelve who were ques-

tioned about publicity (D. A, 191-212), only one had not

read about the case on the prior week-end, and four stated

that they had formed an opinion as to the defendants’

wuilt (D. A. 194, 196, 198, 208). -

REASONS FOR GRANTING THE WRIT.

1. The evidence showed that the defendants did not

register with the District Director of Internal Revenue

nor obtain a wagering tax stamp as required by the Oc-

cupational Tax Laws (D. A. 221-237, JoOS8-265, 265, 267).

On November 29, 1957, federal agents raided their place

of business pursnant to a search warrant charging certain

of the defendants with conducting a wagering business

Without first registering and purchasing a stamp (G. A.

2181). The defendants were forthwith arrested, and sub-

sequently indicted (D. A. 60-61, 66). Count 5 charged

them with having violated the Occupational Tax Law by

failing to register before engaging in the Wagering Busi-

Hess (1). ms. 28),

Count 3 of the indictment charged that in Qetober, 1957,

defendants were engaged in the Wagering business as co-

partners, accepting wagers upon which the federal excise

tax was due, that as co-partners they were required to

file a wagering excise tax return on or before November

30, 1957 (i.e. after their arrest); that, with knowledge

of the foregoing, defendants did wilfully attempt to evade

the excise tax by failing to file a wagering excise tax re-

turn and to pay the tax, and by doing certain acts for the

purpose of concealing the correct amount of the wagers

accepted by them (D. A. 25-26). Count 4 contained simi-

U

—_ 14

lar charges for November with the date alleged for filing

as December 31, 1957 (D. A. 26-28). Count 1, the con-

spiracy count, charged that defendants conspired to wil-

fully attempt to evade the excise tax on wagers, that the

object of the conspiracy was to be accomplished by con-

cealing the existence of the wagering business, by main-

taining incorrect books and records, by engaging in the

wagering business without first paying the wagering oc-

cupational tax and by failing to file a wagering excise

tax return and pay the tax for September, October and

November, 1957 (D. A. 18-23). Count 2 alleged the sub-

stantive charge for the month of September with the re-

turn date bemg October 31, 1957 (D. A. 23-24).

The gravamen of the three substantive felony count.

and the conspiracy count is the failure to file wagering

excise tax returns, and to pay the tax. Over objection,

the Court admitted evidence that the defendants failed to

file excise tax returns, even when due after their arrest

(D. A. 226-235). The Court also refused to instruct the

jury to disregard such evidence (G. A. 2081-2082). Since

the Court also instructed the jury that if it found a defend-

ant guilty on one count, it could consider such guilt in

determining his intent on any other count (D. A. 1490),

the evidence of their failure to file the returns after their

arrest, permeated all counts of the indictment.

We submit thet this procedure violated the defendants’

Fifth Amendment rights against self-incrimination. “Be-

fore the October and November wagering tax returns were

due (being November 30 and December 31), defendants

were actually charged with having, during those very

months, engaged in the wagering business without having

first registered for such occupation. It cannot be doubted

that any action by the defendants with respect to those

returns or the tax (not generally required of people), would

have incriminated them under an existing charge. See

Irving v. California, 3947 U.S. 128, 150.) Indeed, we also

~ — ho—

believe that the defendants could not constitutionally be

required to file the return for September, since it: would

have incriminated them concerning past acts, toe. their

failure to register before beginning the wagering business.

United States v. Ansoni, 1:3k F. Supp. 451, 453-454 (ON. De

Ill.). See United States v. Kohringer, 345 U.S. 22, 22:

Lewis v. United States, 4 |. S. 419.

But certainly, once having arrested and charged them,

the Government is precluded from proving crimes not yet

fully consummated but which the defendants cannot avoid

without affirmatively incriminating themselves on existing

charges, Defendants cannot be placed in such a dilemma,

(‘f. Jones v. United States, 362 U.S. 257. The Government

having chosen to make the arrest and charge, is precluded

from proving their failure to act thereafter where such

action would incriminate them.

United States v. Sullivan, 274 U. s. 259, holding that

one may be required to file an Income tax return, in in-

apposite, for that opinion recognizes that incriminating

information as to past actions is privileged. Here, the

mere filing of a wagering tax return or paving the

tax would have incriminated the defendants.

The importance of the question here presented was

pointed up by the recent decision of this Court in Com-

munist Party v. Subversive Activities Control Board,

Bm ..05 MEM OR IS. oe inajority, finding

the issne as to whether the order directing the Com-

munist Party to register constituted compulsory self-

incrimination to be premature, recognized that a regis-

tration statute requiting information eoncerning a past

potential crime raised a difficult question as to the ap-

plicability of the Fifth Amendment. The four dissenting

Justices held that the privilege of self-inerimination was

violated by the order. The instant case is a stronger one

for the privilege of silence. Clearly here self-inerimination

was required after arrest; and, unlike the Subversive Ac-

— 16 —

tivities Control Board case, there can be no application

of the corporation and organization principle of Wilson

v. United States, 221 U.S. 361. and United States v. White,

$22 U.S. 694.

Certainly the proof of the defendants’ failure to speak

and act as an element of a crime, where to have done so

would have incriminated them in another past crime, is

reversible error. Cf. Grunewald v. United States, 353 U.s.

O91, 416; 77 S. Ct. 963, 980.

2. The erroneous interpretation placed on the record

by the Court below effectively undermines Marshall v.

United States, 360 U. S. 310. It cannot be doubted that

defense counsel challenge] all veniremen who had read

articles about the case, which were, indeed, virtually the

entire panel; and that they requested a continuance and

a transfer (D. A. 87-90, 189-190). Moreover, it cannot be

asserted on this record that a jury could have been se-

lected of people who had not read or heard something

about the case. What the Court below holds, as we under-

stand it, is that, since the Court offered additional per-

emptory challenges (we do not understand it to have been

unlimited) defendants should have undertaken to select

a jury which asserted that it had not read or retained the

prejudicial information contained in the particular articles

introduced in evidence. We did not deem that practical

or that it would assure the defendants a fair jury.. Nor

do we understand that we could have exercised peremptory

challenges for that purpose.

There is no practical way of selecting a jury from a

panel which has been exposed to prejudical newspaper

publicity. For when the entire panel admits, as here, that

they have read about a case which created as much com-

munity interest as this one, and defense counsel knows

that prejudical publicity has been dispatched, there really

is nothing he can do to assure an unbiased jury. For if he

seeks the details of each jurors knowledge he not only

tp

os HR ae

runs the risk that prejudicial information will be spread

to perhaps some who have not read, Coppedge v. United

States, 272 F. 2d 504, 508 (D.C. Cir.). but also he knows

that those who speak most frankly are apt to be the fair-

est Jurors. Regardless of frequent writings to the con-

trary, we know from experience that in a case of wide-

spread interest and publicity such as this one, the jurors

have read and retained. We have no doubt that each

juror thought he could cast aside any bias, but Marshall

teaches that such jurors cannot dissolve their minds of

unconscious predisposition against the defendants, See

also Coppedge v. United States, 272 F. 2d 504, 508 (D.C.

age United States v. Jacongilo, 281 F. 2d) 574, 576-477

> Cir.); United States v. Alker, 180 F. Supp. 661, 664

‘a D. Pa.); Janko v. United States, ... I. S.

SiS. Ct. i662; ave v. Dowd, ... U.S .... 8S.

Ct. 1639.

We submit that, when a trial has not yet commenced,

a defendant should not mnnecessarily be required to have

his liberty determined by a panel such as the one in the

instant case. Delaney v. United States, 190 F. 2d 107 (1

(ir.); tviag ¥v. Dowd, ... U.S. .... 81 8 (4. 1639.

In a case such as this, the only way a defendant can get

a fair trial is for the Court to exercise its discretion and

transfer it to another district or grant a continuance.

Nor do we believe the Government was innocent of'

creating the publicity. Newspaper reporters, even from

Indianapolis, were present at the raid (D. A. 62, 780-782)

and the United States Attorney admitted that he talked

to the press just before the trial commenced (D. A, 107-

10S} df alse-admitted this in oral argument in the Court

below. See Delaney v. United States, supra; Henslee v.

United States, 246 F. 2d 190 (5 Cir.); Griffin v. United

States, 294 Fed. 437 (3 Cir.); Briggs v. United States, 221

F. 2d 636 (6 Cir.); Harrison v. United States, 200 Fed.

662 (6 Cir.). At least the defendants made a prima facie

sien

case and the Government should have been required to

come forward with the evidence. Cf. Campbell v. United

States, 365 U. 8. 10. See G. A. 65-67.

3. The Court below misapplied Ingram v. United States,

360 U.S. 672. Tt allows a convietion to stand upon jury

findings that petitioners were merely partnership em-

plovees, (See instructions at D. A. 1548-1544; 1549-1551).

It concludes that the fact that ‘‘ Wyatt's occupational tax

stamp was posted on the wall of the room’’ conveyed

knowledge to the employees that their employers were

evading the excise tax.

Liability for the exeise tax is placed by 26 U.S. C. 4401

on the proprietor of a wagering business. Until the enact-

ment of an amendment after the alleged violation in the

instant case, an employee was not lable for the excise

tax even if he received wagers for the wagering business.

The fact that an employee knows that his employer has

or does not have an occupational tax stamp does not give

him knowledge that his employer is cheating the Govern-

ment out of excise taxes or is not filing excise tax returns.

The posting of defendant Wyatt's stamp does not supply

this knowledge. Indeed, as we have pointed out, two of

the excise tax returns involved were not required to be

filed until after the raid which frustrated the gambling

business. How could employees know that they would

not be filed? The error in the convictions as to thesestwo

returns permeated all counts of the indictment because

the Court instructed the jury that if it found a defendant

guilty on one count of the indictment it could consider

this guilt for the purpose of finding intent on any other

count (ID. A. 1490).

Nor was there other evidence sufficient to show that

petitioners had knowledge it defendants Shaffer and

Horwick would not file returns nor pay the tax. Most

bets were taken by Shaffer and = Horwick. Petitioner

aan 19 an

Tamer registered ina Terre Haute Hotel on September

13 (D. AL 371-575, 389), but he left Terre Haute before the

raid (D. A. 382, 391, 394). He rented a sate deposit) box

at a Terre Haute bank, which he entered only twice on

October 15 and 31. When he cancelled it by mail on De-

cember 5, it contained nothing (D. A. 424, 428, 433-435 )

so clearly it had nothing in it after October 31. Petitioner

Tamer was rarely seen at the Manor House Restaurant

and it was questionable as to whether he was there in

September (D. A. 492, 509-510, 523-524). No bettor witness

testified that he placed a bet with petitioner Tamer. It

ix true that ten (10) of the 611 bet slips were in Tamer's

handwriting (D. A. 1358-1355, 1384). but this proves no

more than that petitioner Tamer was a clerk. The fact

that he left the enterprise before the raid indicates that

he was not a proprietor.

Petitioners Gordon and Share registered in a Terre

Haute hotel on September 21 (1. A. 292-393, DIS-3TO), oa

week after Shaffer and Horwick arrived (D. A. 371-373,

889). No bettor placed a bet with Gordon, and only a few

with Share. There were 31 bet slips in Gordon's hand-

writing (D. A. 1339-1340; 1383-1384). and S84 in Share’s

(D. A. 1360-1361; 1585), but. again this only proves that

they were clerks.

+. The search warrant stated that there was probable

cause to believe that property was being used on the

searched premises ‘tin connection with the operation of

a wagering business which [is] being used) by persons

Who have failed to register and pay the ocenpa-

tional-wagering tax for the fiseal vear July 1, 1957 (A,

2181). The crimes upon which the warrant was based are

the offenses of failing to register and pay the oecupa-

tional-wagering tax, crimes of omission, not of commis:

sion. See Spies v. United States, 317 U.S. 492.

At least a substantial part of the items seized were not

subject to seizure under any theory. They did not con-

—, aoe

stitute instrumentalities for the commission of any federal

crime upon which the search warrant was based but were

merely evidentiary materials which may not be seized

either under the authority of a search warrant or during

the course of a search incidental to an arrest. Harris v.

United States, 331 U.S. 145, 154: Abel v. United States,

362 U.S. 217, 238. Certainly this is true of the summary

records of amounts accrued on past bets, which were

nothing more than accounting reeords.

In determining whether or not any item seized may be

considered an instrumentality of the crime set forth in the

search warrant it is necessary to consider the nature of

the offense involved. The gamblers occupational tax law,

as well as the excise tax law which was not alleged in

the warrant, do not place a license upon gambling nor

prohibit wagering. Rather they impose taxes and certain

registration requirements prior to engaging in the gam-

bling business. Implicit in United States v. Kahringer, 345

U. S. 22, which upheld the validity of the Act, is the

premise that Congress did not intend to regulate the

business of gambling as such.

What then are the instrumentalities of the erime? Cer-

tainly not property which may be considered to be the

instrumentality of a state wagering crime. The question

rather is whether property used in a gambling operation

may be considered to be an instrumentality of the a@rime

of failing to register under the occupational tax provisions

of the act, or perhaps the excise tax provisions,

A person is required to register and pay the special

occupational tax prior to engaging in the wagering busi-

ness. Wagering creates a tax liability and a liability to

register. It is not the gambling which is a violation of

the law, but the failure to register and to pay the tax.

We submit that any property used in the business of

gambiing is not used for the commission of the offense

but is evidentiary of it. The property so used is merely

va, ee

evidence of these past criminal acts of failing to register

and pay the ocenpational tax and is not used) for the

commission of these acts. Even bet slips are not) instru-

mentalities of violating the law but merely records or

evidence of bets. Since no property is the means of com:

mitting such an offense, all property seized was merely

evidentiary and not subject to seizure under the Fourth

and Fifth Amendments.

In any event, there were some items which beyond

doubt canter be considered to be instruments of a federal

crime, such as the records of accounts, cheek books, hank

deposits book and bank statements. Th is clear none of

these items recorded any bets at the time taken and their

possession violated no law. Their value in this case was

as evidence, These would clearly be evidentiary material

the seizure of which is forbidden under all circumstances,

Harris v. United States, 331 U.S. 145, 154.

Moreover, the search warrant did not limit the seizure

to items which could be considered to be intsrumentalities

of crime. Rather it was a general warrant, calling for the

seizure of all books and records as well as other items.

It was, therefore, invalid as calling for a clear sWeey

seizure. Kremen v. United States, 35:3 U.S. 346: Marcus

v. Search Warrants, U. S., 81S. (t. 1708.) Further the

agents did not execute the warrant in the manner required

by Miller v. United States, 957 U.S. 301. They entered

Without giving prior notice of their authority and pur-

pose.

». Count Vo charged that defendants (engaged in the

business of accepting wagers as co-partners of a wagering

syndicate, knowing that they were required to pay oa

special occupational tax and to file a special tax return)

‘did wilfully and knowingly fail to register’? with the

District Director of Internal Revenue ‘tin violation of

Section 7205, Internal Revenue Code .. ."" (1). A. 28-29).

) \

a]

canine cine

See also instruction at D. A. 1549. Under this Count, each

petitioner was given a one year consecutive sentence and

fined $5,000.00 (D. A. 15682-1591).

Section 7272 of the Internal Revenue Code makes it a

crime to fail to register with the Secretary or his delegate

if required by -the Internal Revenue Code, imposing a

penalty of $50.00. It is broad enough to include any fail-

ure to register required by ‘any provision of the Internal

Revenue Code. The chargifi part of the indictment, that

defendants knowingly failed to register, followed the

language of Section 7272 and not the phrasing of Section

7203.

Section 7203 makes it a crime for any person, required

to pay a tax or make a return, to wilfully fail to pay the

tax or make the return. It authorizes a maximum penalty

of one year imprisonment and a fine of $10,000.00. The

citations of a statute in an indictment are immaterial in

determining the nature of the charge; the allegations of

fact determines the crime charged. Williams v. United

States, 168 U.S. 382, 389. We submit that the sentence

under this count was excessive and void.

CONCLUSION.

We respectfully submit that for the reasons stated

hereinabove, the petition for writ of certiorari should be

granted.

Respeettully submitted,

MORRIS A. SHENKER,

MURRY L. RANDALL,

408 Olive Street,

St. Louis 2, Missouri,

Attorneys for Petitioners.

--

In the

United States Court of Appeals

For the Seventh Circuit.

September Term, 196000 April Session, T9601,

Nos. 12862-12867,

United States of Ameriea, Appeals) from — the

Plaintiff-Appellee, United States Dis-

v. trict Court for the

( Southern = District

Leo Shaffer et al, of Indiana, Terre

Defendants-Appellants. } Haute Division,

June 13, 1961

Before Schnackenberg, Castle and = Major, Circuit

Judges,

Castle, Cireuit Judge. Defendants-appellants, Leo Shat-

fer, Philip Share, Irwin Gordon, James Tamer, Jules Hor-

wick and Falgar M. Wyatt were convicted on all counts of

au five count indictment. Each was sentenced to concurrent

four year terms on the first four counts, to a one year

consecutive term on Count Vy and was fined $10,000.00 on

Count 1. $10,000.00 on Count TPP and $5,000 on Count V,

making a total of five years imprisonment and $25,000.05

in fines,!

Count T of the indictment charges that defendants en-

gaged in the business of accepting wagers as co-partnuers

V Joseph Jacobson and Charles i. Sumner were also named as

defendants and convicted. Their prison sentences were suspended

and they did net appeal.

pee,” eee

in a wagering syndicate at Terre Haute, Indiana, and in

violation of 18 U. S. @. A., £371 conspired to wilfully

attempt to evade and defeat a large part. of the excise tax

on wagers due and owing under Section 4401 of the In-

ternal Revenue Code of 1954 for the months of September,

October and November, 1957. Count IT charges that de.

fendants as co-partners in a wagering syndicate wilfully

and knowingly attempted to evade and defeat the excise

tax due on wagers totalling $326,315.20, aceepted in the

month of September, 1957, in violation of 26 U. S.C. A.,

§ 7201. Counts TIT and TV charge identical violations per-

taining to wagers accepted in November and December

1957 totalling $1,305,260.80 and $1,631,576.00, respectively.

Count V charges that the defendants were engaged in the

business of accepting wagers as co-partners of a wagering

svndicate during the aforementioned period and that thev

violated 26 U.S.C. A. § 7208 by wilfully and knowingly

failing to register as required by Section 4412 of the

Internal Revenue Code of 1954. ;

Defendants in their appeals assert) numerous errors

which may be summarized as presenting the following

basic contested issues:

(1) Whether or.not the defendants were tried by

a fair and impartial jury.

(2) Whether or rot there was substantial evidence

sufficient to sustain the convictions of the defendants.

(3) Whether or not there was a variance between

the indictment and the case as it was submitted to

the jury under the instructions.

(4) Whether or not there was prejudicial and re-

versible error in the admission of evidence or in in-

structing the jury.

(5) Whether or uot prejudicial and reversible error

resulted from the government's calling of witnesses

who invoked the Fifth Amendment. 7

(6) Whether or not the sentence imposed on each

defendant under Count Voof the indietment is ex-

COSSIVO,

On the issue of whether there is substantial evidence to

support the convictions we must view the evidence in the

light most favorable to the government. It is net for us

to weigh the evidence nor reject. inferences properly de-

ducible therefrom. Glasser v. United States, 315 U.S. 60.

0; United States v. Coduto, 7 (ir., 284 F. 2d 464, cert. den.,

360 U. S. 881; United States v. Pinna, 7 Cir., 220 F. 2d

216. With that rule in mind, we shall briefly refer to the

facts and circumstances as developed by the proof,

From about the middle of September until November

30, 1997 a wager accepting business was conducted hy

telephone from a third-floor room in Terre Haute, Indiana,

accessible from a street level entrance designated as Olt.

Wabash Avenue. Most of the wagering was on the scores

of college and professional football games. The bets were

in sizable amounts, many ranging from $1,000.00. to +10,-

(00.00, and totaled over three million dollars. The wagers

were with bettors scattered throughout the United States

from coast to coast and were received by long distance

telephone ealls.

In August of 1957 defendant Edgar M. Wyatt. a resi-

dent of Terre Haute, rented the room for a term of four

months commencing September 1, arranged for the instal-

lation of eight telephones operating in banks of four with

one unlisted number assigned to each bank. and for the

receipt of sports wire service. He deposited $5,000.00. to

cover estimated long distance tolls for a thirty day period

-and paid in advance for fifteen davs* billing on the wire

SeTrVIce,

About the middle of September the other defendants

arrived in Terre Haute from various other cities. Shaffer,

Jacobson, and Tamer checked in simultaneously at a local

oe, pee

hotel where Wyatt had previously reserved a suite of ad-

joining rooms for them. Horwick registered at a nearby

hotel but a few days later removed to the hotel where the

others were staying and occupied a room close to the suite.

Share and Gordon arrived about a week later and Sumner

shortly thereafter. Sumner was assigned to the suite oc-

cupied by Shaffer and Jacobson. The hotel was about two

hundred feet from the entrance at 671!5 Wabash Avenue.

All of the defendants were observed frequently ina

restaurant adjacent to the entrance to the room and during

periods when the latter premises was under surveillance

were observed entering at various times in the morning,

each using his own key to open the street level door which

was always kept locked. The defendants usually left the

premises together each evening. During the two and one-

half month period involved over five thousand Jong dis-

tance telephone charges were made to the telephones.

More than fifty witnesses testified to placing bets by

telephone on calls to the two unlisted numbers assigned

to the telephones. Some asked for one of the individual

defendants when they called, others placed their bets with

whoever answered the phone or with son.eone to whom

the defendant called transferred the call. Ino a number

of instances bettors who had lost were instructed to remit

the cash by registered mail to FE. M. Wyatt or E., M.

Wyatt & Company although they knew neither and had

placed their bet with one of the defendants other than

Wyatt. One bettor on inquiring whether he was betting

with defendant Shaffer was informed “Yes, with his com-

pany’’. |

Qn November 29, 1957 the room was entered pursuant

to a search warrant at approximately 1:30 P.M. Horwick

was leaving the premises. The remaining defendants,

except Tamer, were in the room, three engaged in tele-

phone conversations. Among other items, a record of

—— |

hettor accounts receivable and payable was found on the

premises, Tt reflects the net amount due from or payable

to each bettor, There is no indication that the amount. is

due to or payable by any particular one of the defendants.

Also found were betting slips reeording wagers in’ the

handwriting of all six defendants and schedules on which

aoranning balance of the gross amount wagered on each

game vet to be plaved was recorded. These amounts were

identical with the total of the betting slips on the par-

tieular game. Where a game had been plaved there was

an entry of the net gain or loss on that game.

None of the defendants had filed the special tax return

and application for registry-wagering or a monthly excise

tax return, as partners or members of any group or syn-

dicate. With the exception of Wyatt, none of the defend-

ants registered as being engaged in the business of accept-

ing wagers during the period in question, In August ot

1957 Wyatt had withdrawn from a partnership, known as

the Clover Club, engaged in the business of accepting

wagers ‘at Terre Haute. He had previously signed and

filed the special tax returns and applications for registrv-

wagering on behalf of that partnership whieh listed and

identified the partners as required by law and pertinent

Treasury Regulation. On September 12, 1957 Wyatt filed

a special tax return and application for registry-wagering

at 671!) Wabash Avenne listing himself as the owner and

stating he was in the business of accepting wagers on his

own account. He filed monthly excise tax returns for the

months of September, October and November, 1957. They

were signed ‘BE. M. Wyatt, owner’

covered the tax due on wagers in the amount of $5,625.00,

and in the aggregate

We have not attempted to set forth the evidenee in de-

tail but from a careful study of the record we are con-

vineed that there was ample and substantial basis for the

Jury to conelude that the defendants conspired to utilize

the registration and the monthly tax returns of Wyatt as

a front to mask the magnitude of the wagering operation

they actually conducted with the plan and design of evad-

ing the substantial tax actually due. The defendants* con-

tention that the evidence does not support a conclusion

that the operation conducted at 671!2 Wabash Avenue

was a partnership? or syndicate operation is without

merit,

The defendants complain of certain of the court's in-

structions asserting that they are confusing and = repug-

nant. Much of defendants’ argument in this respect iis

directed to features which were not made the basis of

objections presented to the trial court) and which arise

ovly if the specific language is isolated and considered out

of context. We have examined the instructions and it is

our opinion that when considered in their entirety they

contain no reversible error. In fact their detail evidences

the exercise of meticulous care in informing the jury. of

the extent of the government's burden under the indict-

ment. And the instruction given on guilt as an aider or

abettor correctly states the law. The Distriet Court) did

not err in giving that instruction nor the instructions it

gave on Conspiracy.

There is no evidence here that the acts of concealment

were for the purpose of concealing prior criminal acts

and the instruetions tendered on such theory were prop-

erly refused. United States v. Clancy, 7 Cir., 276 F. 2d

617." Nor was there a basis for the lesser included offense

instructions requested by defendants. Here it was pos-

sible to have committed the greater. offense charged with-

out having committed the lesser (evasion of the oeeupa-

tional tax on wagering in violation of 26 U. S. C@. A.

ys. GC. AL £7701 defines “partnership” as incuding a

*Sendie ate, group, pool, joint venture. or other unincorporated or-

gaumzation, through or by means of whic h any business, financial

operation or venture ts carried on.

* Reversed on other grounds, 365 U.S. 312.

P4262). The instructions were properly refused. Cf,

James v. United States, 9 (i1.. 228 Bo 2d OST: Rule 21 (e).

Federal Rules of Criminal Procedure. IS U.S. CoA.

Defendants claim there isa variance between the indict-

ment and the instruetions under whieh the case was <ub-

Initted to the jury. Tt is argued that a fatal variance ree’

sulted: frome the instructions permitting convietion of all

defendants if any two or more were members of: the spre-

cific partnership charged in the indictment and the. re-

mnmaining defendants were aiders and abettors. We do not

agree, The elimination of one or more of the defendants

as a member of the wagering svndicate does not eliminate

the existence of the syndicate. And it is not HeCOSSuPry

that aiders and abettors be charged as such in the indict-

ment. United States v. Monticello, 3 (ir. 264 F. 2d 47:

Mays v. United States, § (ir. 261 Fo 2d 662. There was

no variance and Stirone v. United States, 261 U.S. 212.

relied upon by defendants is without application,

Defendants’ reliance upon Ingram v. United States, 2300)

t. &. 692, is misplaced. Ingram invelved convictions of

conspiracy to evade and defeat paviment of the wagering

excise tax but the convictions whieh were reversed were

those of two employees without proprietary interest in

the operation and the reversals were based on a lack of

evidence of any knowledge of the emplovers* tax liability,

Kvidence of knowledge was not Jacking iu the instant ease.

Wyatt's occupational tax stamp was posted on the wall of

the room. -

The defendants contend that the Distriet. Court) com:

mitted reversible error in the admission of testimony and

exhibits concerning the previous partnership relationship

of Wyati in the Clover Club operation and the special tax

returns and applications for registry-wagering executed

and filed by him which listed the partners in that opera-

tion. At the time of its admission this evidence was limited

to defendant Wyatt and it was admissible to show his

— 30 —

knowledge of the wagering-registry .requirements of the

Internal Revenue Code. We perceive no error in this con-

nection. Nor was it a basis for a mistrial or severance.

It is urged that the court erred in permitting a govern-

ment witness, whose qualifications are’ not in dispute, to

testify “as to his computation of the gross amount. of

wagers reflected in the records found in the room. The

hypothetical questions asked assumed that the wagering

operation was a co-partnership otherwise their answers

simply represented a computation of the amount of wagers

from records in evidenee. The court carefully instructed

the jury that it was not to take for granted that the state-

ments contained in the hypothetical questions are true but

should carefully scrutinize the evidence to so determine

and give no weight to opinions based on any material

statement found not to be true. The court did not err in

the admission of this testimony.

Defendants claim that the court erred in admitting into

evidence, and in failing to strike, testimony that the de-

fendants other than Wyatt failed to file excise tax returns.

But this evidence clearly had a relevant and material

bearing on the ease. Evidence tending to negate that de-

fendants were operating as individuals and not attempting

to evade any tax due was admissible. And there is no

merit to the contention that defendants’ privilege against

self-inerimination was violatcd by the admission of such

testimony.

The joint motion of certain of the defendants to quash

the search warrant and suppress evidence was properly

overruled. An examination of the face of the warrant

shows that it is completely adequate and states sufficient

grounds for its issuanee. And, contrary to defendants’

contentions, the items seized at the time of the search

and later admitted in evidence were all instrumentalities

of the crime. The betting slips, schedules of gross amounts

wagered on each game, record of accounts receivable and

—;

payable aad other records were all items utilized in the

continued operation of the venture and instrumentalities

of the crime charged. United States v. Lefkowitz, 285 U.S

452; Marron v. United States, 275 U.S. 192, 199; Merritt

v. United States, 6 Cir. 249 FL 2d 19.

During the trial the government called over SIXtY Wil-

nesses in corroboration of the betting records and toll

slips. Nine of these invoked the Fifth Amendment. Six

of the nine had claimed the privilege before the erand

Jury. The error, if any, in calling such witnesses is cured

hy the cautionary instruction given by the District Court.

United States v. Magin, 7 (ir., 280) F. 2d 74, 79

Count V bf the indictment charged a violation of 26

US.CLA. $7203. The punishment imposed was within that

authorized by that statute and on the record and under

the circumstances here involved it) was not) excessive.

United States v. Coduto, 7 (ir., 284 F. 2d 464, 469, cert.

den., 365 U. S. 881; United States v. Chicago Profes-

sional Schools, Inc., et al., 7 Cir., concurring opinion, April

ao, Ol, ... F. 2d ... . Defendants’ contention that

Count V charges a violation of 26 ULS.CLA. 87272) (which

imposes ‘fa penalty of $50°') rather than of 7202 ix with-

out substance.

Defendants assert that because of prejudicial newspaper,

radio and television publicity occurring on the eve of the

trial they were not afforded a trial by an impartial jury.

The trial commenced on a Monday. The publicity in ques-

tion occurred during the previous week-end. There is no

question but what the material circulated through the press

and other communication media contained statements prej-

udicial to the defendants, characterizing some as profes-

sional gamblers, others as ex-convicts, and containing rep-

resentations of prior criminal activities and convictions.

Although defendants contend that the pre-trial publicity

was generated at least in part by the government. the

3

record does not support them in this contention in so far

as any of the prejudicial material is concerned,

On the morning of the trial defendants filed a motion

for an indefinite continuance followed by a motion that

the case be transferred to another district, both of which

were overruled. The District Court carefully interrogated

each prospective juror on voir dire examination as to

whether or not the newspaper articles, radio broadeasts

or telecasts had come to his attention and requested the

parties to submit any additionai questions which either

party felt should be propounded to the jurors. Defendants

submitted none.

Of the twelve jurymen who tried the case, only five had

heard of the case through the newspaper articles in ques-

tion. Four of these could not recall what they had -read

in the articles. One just saw the headlines and did not

reeall the article itself. Each of the twelve jurors stated

that he had formed no opinion as to the guilt or inno-

eence of the defendants. None had any opinion concerning

any of the facts of the case because of anything they had

read or heard about it and all twelve stated that they

would rely entirely upon the evidence to be heard in arriv-

ing at a verdict. Following the selection of the twelfth

juror but before the jury was accepted or sworn the court

gave the defendants an unlimited number of additional

peremptory challenges. Defendants declined to exercise

the unlimited additional peremptory challenges offered

and aecepted the entire jury panel, subject to their stand-

ing objection for cause. During the voir dire examination

defendants had requested that all jurors who had heard

of the case through the pre-trial publicity here in question

he exeused for cause.

Defendants rely heavily upon Marshall v. United States,

360 U.S. 310 as sustaining their contention that they

were not afforded a trial by a fair snd impartial jury

and that the case should be reversed and ao new. trial

awarded. Tn our opinion the defendants* refusal to exer.

else the peremptory challenges offered them: preeludes any

application of Marshall. 11 Marshall the prejudicial news:

paper articles were read by jurors during the trial of

the case and there was no opportunity. to secure others

in their place. The record in this case does not establish

that it was impossible to secure jurors who had not seen

or heard the publicity in question. Seven of the jurors

Who tried the case had not and at the time defendants

refnsed the additional peremptory challenges and accepted

the jury forty veniremen had not yet been ealled or inter-

rogated on voir dire examination. In Marshall it was

recognized that the trial judge has a large discretion in

ruling on the issue of prejudice resulting from the reading

by jurors of news articles and that each ease must turi

on its special facts. On the record before us we find noe

reversible error on this issue,

We have considered all other issues raised by the de-

fendants but) find the arguments advanced in’ support

thereof to be without merit. We have not made specific

reference to many of the authorities cited and analyzed

in the briefs but we have considered them and each of the

arguments advanced by defendants in support of their

position on the issnes and = disenssed these issues we

deemed necessary.

We conelude that the defendants were accorded a fair

and impartial trial free from reversible error. Bach of

the judgments of the Distriet Court is affirmed.

Affirmed.

A true Copy:

Teste:

PS 8 08S O18 Se RR e RR aS SOC OS OS DG SO ORS Bp ok ec

Clerk of the United States Court of

Appeals for the Seventh Cirenit.

— 4 —

United States Court of Appeals

For the Seventh Cireuit,

Chieago 10, Illinois.

Tuesday, June 15, 1961,

Before

Hon. Elmer J. Sehnackenberg, Cireuit Judge,

Hon. Latham Castle, Cirenit Judge,

Hon. J. Earl Major, Cirenit Judge,

United States of America,

Plaintiff-Appellee,

Nos. 12862 thru 12867 Appeals from — the

United States Dis-

ei trict Court for the

eo Shaffer, Philip Share, Tr- > Southern District

win Gordon, James Tamer, of Tndiana, Terre

Jules Horwick, Edgar M. Haute Division.

Wvatt,

Defendants-Appellants. J

This cause came on to be heard on the transeript of the

record from the United States District Court) for the

Southern District of Indiana, Terre Haute. Division, and

was argued by conneel.

On consideration whereof, it is ordered and adjudged by

this court that the judgments of the said Distriet Court in

this cause appealed from be, and the same are hereby,

Affirmed, in aceordanee with the opinion of this Court

filed this day.

és

-~

'

United States Court of Appeals

For the Seventh Cirenit.

Chienga TO) Tinos.

Wednesday. Nugust 2. 190]

Before

Hon. Elmer J. Sehnaekenbere, Cirenit Seder,

Hon. Tatham Castle. Cio uit Jucdee,

Hon. J. Bark Major Cirenit: Judee.

United States of Anmerien, 5

Phaintitl Appellon, Appeals from the

United States pis

triet Court for the

mn Southern District

of fudtana, Terr

Nos. T2862 through [2s67

Leo Shaffer et al.,

. Hittite Division.

Defendants- Appellants.

It Is Ordered by the Court that the petition fora rehear

ing of this cause, filed herein on June 27, 1961, on beat

of defendants-appellants Leo Shaffer, Jules Horwiek and

Kdgar M. Wyatt, and the petition for a rehearing filed

herein on June 27, 1961, on behalf of defondants-appellants

Philip Share, Irvin Gordon and James Tamer. be and the

same are hereby, Denied,