*3
ant-appellant, Mrs. Jessie Jewell Jordan
Farris,
Anthony
Atty.,
J. P.
U. S.
gambling
were
convicted
offenses
Gough,
McDonough,
James R.
Edward B.
court
were in
state
while
Jr.,
Doucette,
Attys.,
U.
Joe
S.
Asst.
There
no evidence that
Checotah.
was
Tex.,
Houston,
plaintiff-appellee.
for
Guinn was in Oklahoma.
WISDOM,
Before
COLEMAN
Judges.
SIMPSON,
January 12, 1967,
Circuit
About
Rowan and
Grimes,
Chapman,
request
mobile home
moved the trailer to Rowán’s
WISDOM,
Judge.
Circuit
Worth,
lot
There was
Fort
Texas.
This case involves
the use
interstate
contradictory
testimony
whether
as to
gambling
commerce of a trailer
a
stop
was caused
in Fort Worth
house.
engine
which was
trouble
the tractor
April
defendant-appellant
On
pulling
the mobile home
was
Billy
Grimes,
Ray
accompanied by de-
home,1
selling
purpose
but
the mobile
fendant-appellant,
Jordan,
Jere Bedford
February
9, 1967,
about
Rowan
specially
ordered a
constructed mobile Chapman
a
moved the trailer
site
Roanoke,
home
from manufacturer
Sealy,
Texas.
Brazos River near
Texas. The mobile home contained two
Jordan,
Grimes,
Mrs. Jordan
bedrooms,
bar,
kitchen
into
modified
the arrival
Houston before
large
expanded
and a
room that
could
Guinn,
Houston,
trailer, and
a native of
highway
from common
dimensions
to a
land
trailer was
leased the
where the
length
width of 24 feet and a
of 54 feet.
hunting
ostensibly
up,
be set
for a
Grimes
told
manufacturer
fishing club.
mobile
was to
for
home
be used
business
March,
May,
During
April, and
Guinn
years
For
entertainment.
the next three
in the mobile
directed
the business
turned
entertainment
out
Rangers,
May 5,
gambling.
May
home. On
About
trips
covering
contradictory testimony
from Oklahoma
There
also
was
trip
Fort
from Fort Worth
Worth and
as to whether the
from Oklahoma
Sealy.
Sealy,
paid
for in one
was
lump
separate
in two
installments
sum or
acting
warrant,
trip,
searched
under
search
the Oklahoma to
they contend,
the trailer.
A
court
convicted
state
was made without
requisite
offenses.
The evi-
The Fort
Guinn
intent.
Worth to
gained
Sealy portion
they argue,
trip,
of the search
dence
as a result
separate
journey,
and,
turned over to federal officials. On
if made
even
6, 1967,
agents,
intent,
requisite
under
with the
did
violate
December
warrant,
found that
the serial
a search
statute because of the absence
changed.
of the trailer had been
interstate travel.
number
Jordan,
Grimes, Guinn,
point
and Mrs.
evidence on this
contra-
July
dictory,
taking
for
but
the view of
evi-
Jordan were indicted
government,
traveling
in
dence
commerce with
most
in interstate
favorable
carry
gambling enterprise
in Glasser
tent to
on a
315 U.S.
86 L.Ed.
violation of
we
18 U.S.C. §
*4
must,
conspiracy
viola
there
evidence
to violate that statute
substantial
in
might
jury
jury
that
A
found
from which the
conclude
tion of 18
371.3
U.S.C. §
guilty on the sub
this element of the crime was established
all four defendants
counts,
beyond
except
conspiracy
reasonable
There was
stantive
doubt.
granted a directed
evidence that
the move was intended to
Mrs. Jordan who was
stop
acquittal
the substantive
be from Oklahoma to
verdict of
on
engine
in Fort
The trial
denied a
Worth was to correct
offense.
motion
trouble,
journey
and that
for a new trial.
Sealy
paid
for as one
Sufficiency
the Evidence
I.
appellants
unit. The
forced to leave
of
discovery
Oklahoma because of
of their
contend,
first,
appellants
The
gambling activities,
they
were in the
the evidence was insufficient
shortly
pre-
Houston area
afterwards
intent of
matter of law to show that
paring
operations
Sealy.
in
establish
promote
the interstate
travel was
appellants
The
too much em-
gambling enterprise. An essential ele
phasis
physical
on the
movement of the
ment of the offense defined
18 U.S.C.
trailer and the fact
the trailer was
derivatively
U.S.C.
§
§
Fort
for more than three
in
Worth
is travel in
commerce “with in
interstate
gravamen
The
of the offense is
weeks.
gambling enterprise.
promote
tent
to”
in
the movement of the trailer
inter-
appellants
the inter
The
contend that
requisite intent
state commerce with the
Cheeotah,
travel was from
state
Okla
of the defendants.
Worth, Texas,
but rather
the travel
homa to Fort
where
Admittedly,
the trailer
journey
portion
movement of
ended. This
interstate
(a)
of
offenses in violation
laws
travels
interstate
or
Whoever
foreign
any facility
or
are committed
or
State
commerce
uses
extortion,
States,
(2)
commerce,
foreign
or
in-
the United
or
interstate
bribery,
cluding
mail,
in violation of
or arson
with intent
committed
of the State
laws
%
$
sjs
ifc
(3)
promote, manage,
or of the United States.
otherwise
estab-
lish, carry on,
promo-
§
18 U.S.C.
or facilitate
tion,
establishment,
management,
or
conspire
on,
activity,
persons
carrying
any
either
more
If two or
unlawful
against
any
attempts
performs
or
to commit
offense
and thereafter
perform
States,
any
specified
the United
or to defraud
of the acts
United
any
any agency
subparagraphs
(1),
(2),
(3),
thereof
or
shall
any purpose,
$10,000
im-
manner or
more
or
fined not
than
persons
any
prisoned
years,
act
do
more
such
than
or
for not more
five
object
conspiracy,
to effect
or both.
(b)
not more
than
fined
each shall be
As
in this section “unlawful
used
$10,000
imprisoned
activity”
(1) any
not more than
or
enter-
business
means
years,
prise
involving
gambling,
liquor
or both.
five
on
2.§
also 18 U.S.C.
371. See
§
has not
18 U.S.C.
which the Federal
excise tax
paid, narcotics,
prostitution
been
or
was,
alleged,
deferred-ruling
part
as the
indictment
lianee
doctrine is
only
misplaced.
scheme, and
instructed
The doctrine means
alleged aspect
judgment
on this
of the offense.
to a
defendant
is entitled
acquittal
There was substantial evidence that
if the
at the close
evidence
insufficient,
defendants
traveled
interstate
com-
case is
Government’s
judge may
requisite
not,
merce with the
intent.
and that the trial
This
be de-
ferring
element
the crime could be
mo-
established
decision
the defendant’s
tion,
sup-
on the basis of the movement of the
allow sufficient evidence to be
Sealy
plied by
prosecu-
trailer from Oklahoma to
or
the defense
basis
defendants’
travel
inde-
tion
If the evidence is suf-
on rebuttal.
pendent
rests,
prosecution
of the trailer.
ficient
as it
when the
failing
case, any error in
is in the instant
appellants
also contend that
promptly on
harm-
to rule
the motion is
the evidence was insufficient
to establish
Cooper
less.
venue in the
Southern District
Texas.
F.2d
count,
conspiracy
As to the
an overt act
Southern District
must
Validity
Search
II.
Warrant
proved
venue;
to establish
as to the
count, travel in
substantive
the Southern
object
to the intro-
requisite
District of Texas with the
in
duction of
evidence seized
the search
ample
*5
tent must
shown. There
by
Rangers
5,May
Texas
on
1967 and in
support
evidence to
18
venue. See U.S.C.
agents
by
on
search
December
§
on
6, 1967. Both searches
made
were
authority
warrants,
appellants argue
of search
and
that
the trial
failing
erred in
their attack at
direct
to rule on
validity
their
judgment
motion for
of
acquittal
the warrants.
of
because of insufficient evidence at the
The
warrants
to
search
issued
close of the Government’s case. See
Rangers
on
an affidavit
was based
States,
Jackson v.
1958,
United
5 Cir.
sergeant
a
in the Texas
executed
897;
250
Montoya
F.2d
States,
Rangers.4
appellants contend that
The
1968,
probable a search war- 410, 584, 637, cause U.S. 89 S.Ct. L.Ed.2d 21 Supreme Court decision rant. After the relying on Jones v. United Harris, U.S. States 80 S.Ct. 4 L.Ed. U.S. we L.Ed.2d 91 S.Ct. 2d in the 697. The affidavit submitted no have affidavit suf- doubt instant case has the elements found finding probable support ficient important in Harris and more. cause. the affidavit the case bar contains authorizing Harris, a warrant believing “ample in factual basis for premises was defendant's search of the formant,” 403 U.S. at in of a federal tax issued basis though un even the informant Supreme vestigator’s The affidavit.5 named. informants related to sufficient, dis affidavit held the had seen affiant Aguilar tinguishing gambling equipment tables L.Ed.2d 723 least the inform three while occasions persons continued the aforementioned building, room and gaming keep tables exhibit these house, trying escape. keeping present time and are at J. D. RUNDELL /&/ exhibiting gaming tables same these SWORN AND TO SUBSCRIBED room im- and situated are located May, day me this the 5th before adjoining mediately front door A.D., 1967. sources above described. said house II. O. FRIZZELL /s/ they have relate that of information Peace, Justice of the Precinct three occasions been to this location on No. Texas.” actually participated in the and have gaming above described. reputation 5. “Roosevelt Harris has *6 sources of the aforementioned Both of years being a me for four with over the under- are with information signed familiar spirits, nontaxpaid distilled trafficker the Texas other members of and period I received over this have and Safety. Department of Public all from [sic] information numerous regarding the This information same persons types of as to his activities. gaming exhibiting keeping illicit and a Howard Johnson located Constable by the tables described conducted above whiskey in an stash illicit sizeable has been above mentioned individuals Harris’ control house under abandoned given undersigned to other and date, period during This this of time. Department of per- the Texas members of a information from I have received Safety. Public and [sic] their life who fears for son the aforemen- To the name of disclose name revealed. their should endanger tioned their lives. Affi- person, would this found interviewed I have previous only person, that on prudent ant can advise person and to be a this given statement, in- these have occasions sources have, verbal a sworn under regarding gambling op- following illicit gained formation This information: personal be correct erations that was found to person information of has thereby undersigned whiskey purchased does believe with- from illicit has gaming op- described, period now that there is an illicit for a the residence in recently being years, eration in the conducted above and most than 2 more premises knowledge past weeks, is not described which has 2 within family. private by occupied person purchased whis- residence illicit of a who days key past Wherefore I ask that a warrant from two within the premises, knowledge personal house, search building, that the above described has pur- by whiskey room and and to consumed discover illicit outbuilding gambling tables, cards, known and in seize the said chasers hall,’ gambling paraphernalia, has seen dice and other as the ‘dance utilized go equipment to other outbuild- Harris devices and be issued forth- Roosevelt ing, yards law, with in 50 accordance and for located about with occasions, residence, ob- on numerous warrant to arrest said above named whiskey person persons person and other this for and such other found tain aiding persons.” keeping premises, therein said
35
gambling.6
Harris
present
participating
important
ants were
but
supra.
Harris,
Jones,
“personal
Aguilar
relied on
In
See also
v.
by
supra; Spinelli
States, supra.
an unidenti
and recent observations
activity
although
present
of criminal
[and]
fied informant
affiant does
showing
Harris,
relate,
had
factor
information
as was the case in
gained
personal knowledge
manner.”
403
a reliable
been
of the defendants’
579,
reputation,
An im
read Harris
91
at 2080.
U.S.
S.Ct.
we do not
portant
requiring
factor was
informant’s
state
such
statement
view
personal
crediting
information of
ment that he
other “substantial
basis
whiskey
purchased
hearsay”.
581,
he had
illicit
because
403 U.S.
91 S.Ct.
Second,
Aguilar
Texas, 1964,
instant
the affiant
some.
2080. See
v.
378
114-115,
his
had on
case
informants
states
U.S.
84 S.Ct.
L.
12
given
723;
States, 1962,
information
re
other occasions
Ed.2d
Jones v. United
garding
gambling operations
illicit
362 U.S.
80
4
697.7
S.Ct.
L.Ed.2d
Harris,
accurate.
was found
agent
An
searched
mobile
merely stated that
the in
the affiant
6, 1967,
home on December
and took
“prudent”.
also
formant was
photographs of the vehicle identification
Aguilar
Texas, 1964,
108, 84
378 U.S.
number of the trailer
had been
723; Spinelli
L.Ed.2d
S.Ct.
12
away.
photographs
burned
These
United
89
U.S.
introduced at trial.
con-
637;
L.Ed.2d
Jones
tend that
ex-
trial
should have
States, 1962, 362
cluded this evidence
the search
because
Third,
5. Ct.
L.Ed.2d 697.
upon
warrant
which the search was based
in the instant
case stated
affiant
They again
attack the suf-
invalid.
unnamed
the information related
his
ficiency
upon
the affidavit
was corroborated
other
informants
finding
probable
based.8
cause was
sources.
This
factor was absent
gam-
pose
of and which
used for
the remoteness of the informant’s
As to
bling.
Harris,
information, see United States v.
prior
March, 1967,
Thereafter,
fn.*,
403 U.S.
transported
above-described trailer was
L.Ed.2d
interstate commerce
clearly
“Aguilar’s
7. The affidavit
meets
Oklahoma,
loca-
the above-described
two-pronged
explained
Spinelli,
test” as
tion in
supra. The affidavit sets forth “the ‘un-
engaging
*7
purpose
in various
for the
derlying
necessary
circumstances’
to en-
gambling type operations,
is a
which
magistrate independently
able the
to
violation of
18 U.S.C.A.
validity
of the
of the informant’s con-
tending
the fore-
to establish
The facts
413,
clusion.”
affidavit concern ourselves with realities. contained therein. the information complain cannot of evidence affidavit used It that an is true might have been discovered and speak “must support a search warrant introduced, Also, was not. but war of that of the issue as of the time affidavit contained information about a Sgro rant”. extending course conduct over a twelve 138, 140, L.Ed. U.S. 260, culminating period month in a raid which States, 5 Rider United See yielded gambling paraphernalia. This is, There how F.2d 192. Cir. history magistrate was relevant to arbitrary ever, old limit on how time no assessing probable cause. See United affidavit contained an the information may Harris, States us that convince factors be. Two 29 L.Ed.2d fn.* 91 S.Ct. validly issued wárrant was search properly photographs admitted. and the Rulings Trial III. photographs identifica Next, appellants complain testimony of the and the tion number allegedly improper impeachment only agent evidence F.B.I. gleaned defense witness Cullen James Rowan. the search. The result of Rowan was confronted on cross-exam permanently number identification prior ination with inconsistent state The fact that the trailer. affixed agents. ments made to The im location located trailer still was peachment was intended to attack Row searched, a fact attested by credibility and tes affiant, an’s timony cast on his doubt present meant tense stop as to the reason behind the presently there. serial number appellants complain in Fort Worth. The had the different would situation that a laid gambling para sufficient foundation was not revealed movable search impeachment and that the admis phernalia recent informa about no pri- sion of additional evidence as to the affidavit. tion contained in the improper. or inconsistent statements was Rider United warrant, See 3 Wharton’s Although Evidence §§ Criminal search F.2d 192. by 917-921, (12th 1955); pp. 339-348 ed. to an exam terms limited its Wigmore 1017-1029, III on Evidence identification §§ ination of the vehicle pp. (3rd 1940). ed. We cannot number, only 684-709 from the evidence agree. study of convinces Our the record concerned trial search adduced challenge foundation was laid evaluating us that sufficient number. When Gunn, Special Agent Federal part operations. Alfred G. as a of said Investigation, January has observed February, Bureau of In about trailer at above this said described was trans- the above-described trailer Agent Special received ported location. Gunn in interstate commerce from confidential sources Checotah, Oklahoma, information *8 proven more Harry Harrison, reliable on than George that have on the Mr. of located River, said trailer one occasion Bank the Brazos South of West in this on the set forth above Sealy, for the of Interstate being gambling used purposes engaging affidavit had been and was ac- of during gambling purpose of the for the tivities. April February, March, and May 5, 1967, Thereafter, months of on or about May, Ranger, Rundell, oth- J. A. and Alfred G. Gunn raided er State Officers /s/ Agent GUNN, Special fitting operation G. ALFRED the de- in a trailer Investigation scription Federal Bureau of trail- the above-mentioned me, above, SUB- before and SWORN TO er and the location described my presence, para- this 30th SCRIBED at which time certain day November, equipment phernalia found were and by O’Neal Morris the State in said seized trailer /s/ Commissioner.” United States Authorities. rect, testimony impeaching photographs for the use of the to introduce the surprise up and that no unfair resulted. clear the as to doubt the identifica- Further, prior the state- tion. inconsistent principal
ments concerned the defense
theory. This cannot
considered a col-
Instructions
IV.
lateral or immaterial
The ad-
matter.
testimony
of additional
argue
mission
appellants
prior
proper.
jury
inconsistent
was
statements
improper
instructions were
for two
reasons.
contend that
appellants complain
of re
jury
instructions
failed to instruct
prosecutor
marks of the
which tended to
precisely
principal
theory.
defense
disparage
veracity
eyes
Rowan’s
See Strauss v. United
5 Cir.
jury.
The trial court sustained ob
416;
376 F.2d
Perez v.
jections to the remarks and instructed
Cir.
F.2d 12. The defendants
disregard
Any
jury
them.
error
attempted
court,
prove,
in the trial
was
F.R.Crim.Pr.
harmless. See
the trailer was moved from Okla
appellants
contend
homa to Fort
with no intent
Worth
admitting
the trial court erred in
Sealy, Texas,
engage
gam
travel to
“mug
appel
into evidence
shots”
bling. Any
carry
gam
intent
on a
States, 1966,
lants.
Barnes United
bling enterprise
only during
existed
509;
U.S.App.D.C.
see
365 F.2d
Sealy journey thereby
Fort Worth to
ne
Silvers,
also United States
7 Cir.
gating the element of the crime which
Harman,
828;
F.2d
United States v.
requires
travel
in interstate
commerce
316;
4 Cir.
349 F.2d
United States
raising
requisite
with the
intent and
226;
Reed,
7 Cir.
F.2d
defense
abandonment.
have stud
We
Rhay,
Smith v.
V. Other appellants raise three further grounds for find all reversal. We them RICO, DE PUERTO VOLKSWAGEN appel- to be without merit. INC., Plaintiff-Appellant, lants contend that indictment duplicitous and that the Government LABOR RELATIONS PUERTO RICO required upon should have been to elect Defendants-Appellees. al., BOARD et charge proceed. it would be-We No. 71-1059. ap- adequately lieve that the indictment prised charges the defendants Appeals, States against them, prepare enabled them to First Circuit. defense, against protected subse- Nov. Heard quent prosecution for the same offense. Decided Jan. Second, argue appellants convictions reversed because the must be judicial court took
district notice
statutes the State Texas without
requiring proof of those statutes or an-
nouncing taking judicial it no-
tice the statutes. The trial
properly charged appli- any
cable Texas other statutes law;
question appellants’ conten- clearly merit. Lamar tion is without Micou,
29 L.Ed. com-
plain prosecutor dur- of remarks argument jury. ing closing his remarks, context, al- When read likely though questionable, were not so require jury’s as to verdict effect Any harm-
reversal. error involved
less. F.R.Crim.P.
Affirmed.