393 U.S. 963 | SCOTUS | 1968
Dissenting Opinion
dissenting.
The Court, by denying certiorari in this case, has ignored the interrelationship between its recent decision in Marchetti v. United States, 390 U. S. 39 (1968), and the well-established rule that the Government cannot comment upon the accused’s decision to stand mute. See Wilson v. United States, 149 U. S. 60 (1893). Although I was the lone dissenter in Marchetti, see 390 U. S., at 77-84, I am puzzled by the Court’s failure to apply the principles it so recently advocated.
Petitioner stands convicted of four related violations of the statutes governing those engaged in the business of accepting wagers: use of interstate facilities for transmitting wagering information in violation of 18 U. S. C. § 1084; use of interstate facilities with intent to carry on an unlawful gambling activity in violation of 18 U. S. C. § 1952; failing to pay the special tax imposed upon gamblers by 26 U. S. C. § 4401; and failing to register as a gambler as required by 26 U. S. C. §§ 4411-4412.
In Marchetti the Court held that, given the widespread prohibition of gambling activities by both the state and federal sovereigns, the registration and taxation provisions of §§4401 and 4411-4412 compelled a gambler to
1 find this rationale equally applicable to this case. The Government in the first two counts indicted petitioner for interstate gambling, yet at the same time in the last two accused him of failing to incriminate himself on the first two counts. Had government counsel introduced evidence that petitioner, when asked if he was a gambler, refused to reply and then argued to the jury that petitioner’s silence indicated guilt, I have no doubt that a reversal would be mandated. See Miranda v. Arizona, 384 U. S. 436, 444, 468, n. 37 (1966).
To prove its charges on the third and fourth counts the Government was required to show only that petitioner received wagers and had neither registered nor met his tax liability. The indictment on the first and second counts was based upon telephone calls made by bettors to the New York City number from outside New York State. The Government’s theory of prosecution was that petitioner caused the out-of-state bettors to use
Furthermore, the joinder of these four charges can be viewed as a classic example of the improper use of “other-crimes” evidence.
I would grant certiorari to resolve these issues.
Petitioner received the maximum sentence on each count, the sentences to run consecutively.
Petitioner’s trial began in August 1966 and was thus after the applicable date of Miranda. See Johnson v. New Jersey, 384 U. S. 719 (1966).
The essential element is that the accused be a professional gambler. Section 1084 applies to individuals “engaged in the business of betting or wagering”; § 1952 refers to the use of interstate facilities to carry on “any business enterprise involving gambling”; and §§ 4411 and 4412 impose a tax and registration requirement upon those “engaged in the business of accepting wagers” as defined in §4401.
The Court of Appeals intimated that petitioner did not properly preserve his present claim as he failed to move to sever the gambling
The Government chose to place venue in the Southern District of New York, the situs of the bettors’ telephone calls, rather than in the Eastern District, the district from which the return calls were made. See United States v. Synodinos, 218 F. Supp. 479 (D. C. Utah 1963); 18 U. S. C. § 3237.
The trial judge charged: “Thus the government has attempted to show that the defendant devised a method whereby he caused these individuals to phone the Eldorado number, ask for Mr. Mellon, which the government contends was the name the defendant supplied to them and which was the trigger for his return call to them with the specific wagering information or to accept the particular bet, and when we say the defendant caused the telephone to be used we do not mean that he coerced the bettors.”
Typically, other-crimes evidence is introduced to establish intent, design, and system on the part of the accused where the other crimes are similar to the crimes for which he is charged. See Lisenba v. California, 314 U. S. 219, 227 (1941).
Lead Opinion
C. A. 2d Cir. Certiorari denied. Edward Bennett Williams for petitioner.