Lapas attēli
PDF
ePub
[ocr errors][merged small][merged small]

single-count indictment here charged in relevant part that the defendants' gambling business involved "accepting, recording and registering bets and wagers on a parimutual [sic] number pool and on the result of a trial and contest of skill, speed, and endurance of beast," and that the business "was a violation of the laws of the Commonwealth of Massachusetts, to wit, M. G. L. A. Chapter 271, Section 17."

The Government's evidence at trial showed the defendants to have been engaged primarily in horse betting and numbers betting. At the close of the Government's case, petitioner's counsel, who represented 8 of the 11 defendants, moved for a judgment of acquittal as to all of his clients. Joined by counsel for other defendants, he argued, inter alia, that the

"(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

"(2) 'gambling' includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.

"(3) 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States."

2 The indictment alleged in full:

"From on or about June 1, 1971 and continuing thereafter up to and including November 13, 1971 at Revere, Massachusetts within the District of Massachusetts, [the defendants] did unlawfully, knowingly, and wilfully conduct, finance, manage, supervise, direct and own all and a part of an illegal gambling business, to wit, accepting, recording and registering bets and wagers on a parimutual [sic] number pool and on the result of a trial and contest of skill, speed, and endurance of beast, said illegal gambling business; (i) was a violation of the laws of the Commonwealth of Massachusetts, to wit, M. G. L. A. Chapter 271, Section 17, in which place said gambling business was being conducted; (ii) involved five and more persons who conducted, financed, managed, supervised, directed and owned all and a part of said business; (iii) had been in substantially continuous operation for a period in excess of thirty days and had a gross revenue of two thousand dollars ($2,000) in any single day; all in violation of Title 18, United States Code, Sections 1955 and 2."

[blocks in formation]

Government had failed to prove that there was a violation of the state statutory section as alleged in the indictment, since Mass. Gen. Laws Ann., ch. 271, § 17 (West 1970), as construed by the state courts, did not prohibit numbers betting but applied only to betting on "games of competition" such as horse races. The Government responded that "violation of the State law is a jurisdictional element of [the federal] statute" and that "not every [defendant] must be found to be violating this State law." The District Court accepted the Government's theory and denied the defendants' motion, stating that "a defendant to be convicted must [only] be found to have joined in [the illegal] enterprise in some way."

Petitioner's counsel then sought clarification of whether "the numbers pool allegation [was] still in the case." The court indicated that it was, because counsel had not presented any state-court authority for the proposition that § 17 did not include numbers betting. The court also expressed the view, however, that if petitioner's counsel were correct, "we would have to exclude . . . all of the evidence that has to do with bets o[n] numbers." The Government demurred, arguing that exclusion of the numbers evidence would "not necessarily follow" from acceptance of petitioner's theory. Taking his lead from the court, petitioner's counsel next moved "to strike or limit the evidence." The motion was denied.

After the defendants had rested, the trial judge announced that he was reversing his earlier ruling on the motion to exclude evidence, because he had discovered a Massachusetts

3 When the District Judge asked why exclusion of the numbers evidence "would not necessarily follow," the Government responded:

"Because the Defendants have been charged with operating a gambling business, which is in violation of State law. Now, there's no question that the horse race aspect of it is in violation of State law. There are other aspects to the bets as well, but the violation of State law is merely a jurisdictional element which must be satisfied prior to the initiation of Federal prosecution."

[blocks in formation]

case holding that numbers betting was not prohibited by § 17, but only by § 7 of ch. 271. The court then struck all evidence of numbers betting, apparently because it believed such action to be required by the indictment's failure to set forth the proper section."

At this point counsel moved for a judgment of acquittal as to petitioner alone, arguing that there was no evidence of his connection with horse-betting activities. The Government did not disagree that the evidence was insufficient to show petitioner's involvement with a horse-betting operation, but repeated its earlier argument relating to the "jurisdictional" nature of the state-law violation. The court rejected this contention, stating that the offense had "to be established in the terms that you [the Government] charged it, which was as a violation of § 17" and that petitioner had to be "connected with this operation, and by that I mean a horse operation." The court concluded: "I don't think you've done it." It then granted petitioner's motion for a judgment of acquittal and entered an order embodying this ruling later that day."

The next day the Government moved the court to reconsider both "its ruling . . . striking . . . evidence concerning the operation of an illegal... numbers pool" and "its decision granting defendant Thomas Sanabria's motion for judgement

• Commonwealth v. Boyle, 346 Mass. 1, 189 N. E. 2d 844 (1963).

5 The Government did not at this time argue, as it had previously, see n. 3, supra, that the numbers evidence was relevant to show "other aspects" of the bets even if it could not be used to prove that the business violated state law. Instead, it urged that the numbers evidence was admissible as proof of "similar acts."

• Petitioner has consistently maintained that he properly moved to exclude the numbers evidence as irrelevant to the indictment's characterization of the gambling business; that the District Court properly granted the evidentiary motion, see Tr. of Oral Arg. 12; and that the District Court properly granted petitioner's motion for a judgment of acquittal after excluding the numbers evidence on the grounds of insufficient evidence. 7 The text of the judgment is quoted infra, at 67.

[blocks in formation]

[sic] of acquittal." Prompted by the Government's arguments in support of reconsideration, the court asked defense counsel why he had not raised the objection to the indictment's citation of § 17 earlier and what prejudice resulted to petitioner from the failure to cite the proper section. Counsel responded that the objection had not "ripened" until, at the end of the Government's case, the court was asked to take judicial notice of § 17, and that he need not and did not allege actual prejudice. The court denied the motions to reconsider, but indicated that, had it granted the motion to restore the numbers evidence, it also would have vacated the judgment of acquittal. The case against the remaining 10 defendants went to the jury on a theory that the gambling business was engaged in horse betting; all were convicted.

The Government filed a timely appeal "from [the] decision

In support of these motions, the Government argued that the failure to cite Mass. Gen. Laws Ann., ch. 271, §7 (West 1970), in the indictment was a technical defect causing no prejudice to the defendants and subject to correction during trial under Fed. Rule Crim. Proc. 7. See n. 11, infra. If the numbers evidence were restored to the case, the Government argued, vacating the judgment of acquittal would be proper, since it had resulted solely from the erroneous exclusion of evidence and since no new trial would be necessary in view of the fact that the jury had not been discharged.

The trial court explained its reasoning as follows:

"If the other motion had been granted, I think, probably, the Motion to Reconsider the Acquittal of Sanabria would be allowed under these new decisions: Wilson, which is in 420 US 332; Jenkins, 420 US 358; and Serfass at 420 US 377, all decided the last term. All of those seem to say if a judgment of acquittal or judgment of dismissal is entered on legal grounds as opposed to containing or importing a finding of fact and the reversal of that decision would not require a new trial, then it may be reversed.

"In Fong Foo [v. United States, 369 U. S. 141 (1962)] the jury had been discharged, and it would have been necessary to draw a new jury and start a new trial, and in Jenkins they specifically distinguished Fong Foo from the Wilson-Jenkins-Serfass group . . .

[ocr errors]
[blocks in formation]

and order ... excluding evidence and entering a judgment of acquittal... and... denying the Motion for Reconsideration." Conceding that there could be no review of the District Court's ruling that there was insufficient evidence of petitioner's involvement with horse betting, the Government sought a new trial on the portion of the indictment relating to numbers betting.

The Court of Appeals for the First Circuit held first that it had jurisdiction of the appeal. Although the jurisdictional statute, 18 U. S. C. § 3731 (1976 ed.), by its terms authorizes the Government to appeal only from orders "dismissing an indictment . . . as to any one or more counts." 10 the word "count" was "interpret[ed] . . . to refer to any discrete basis for the imposition of criminal liability." 548 F. 2d 1, 5 (1976). Viewing the horse-betting, and numbers allegations as "discrete bas[es] of criminal liability" duplicitously joined in a single count, the court characterized the District Court's action as a "dismissal" of the numbers "charge" and an acquittal for insufficient evidence on the horse-betting charge. Id., at 4-5, and n. 4. It concluded that § 3731 authorized an appeal from the "dismissal" of the numbers charge, "if the double jeopardy clause does not bar a future prosecution on this charge." 548 F.2d, at 5.

Consistent with its above analysis, the court found that petitioner had voluntarily terminated the proceedings on the numbers portion of the count by moving, in effect, to dismiss it. Since the "dismissal" imported no ruling on petitioner's

10 Another provision of § 3731 authorizes the Government to appeal from orders "suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy and before the verdict or finding on [the] indictment." The Government does not contend that the ruling excluding numbers evidence was appealable under this provision. By its plain terms, moreover, this second paragraph of § 3731 does not authorize this appeal, since the ruling excluding evidence occurred after the defendant had been put in jeopardy and before verdict. Cf. United States v. Morrison, 429 U. S. 1 (1976).

« iepriekšējāTurpināt »