United States v. Thomas D. Clancy, James F. Prindable and Donald Kastner

617 through agent. 1951, 1130, July 19, proper 12 2082 reference P.S. its The P.L. Report Attorney seq., no contribution General’s there would be et Study Anti- party the National defendant to Committee third from distinct 2081 Trust refers to two former Section Laws also The defendants. corporations opinions joint as “those who and deals with the tortfeasors defines jointly severally It does not by appellant. liable for a tort referred to or are where, attempt them, such liabilities mention or between Nelson Radio secondary.” primary problem cor- all cover the us either all or before are agent through gives acting officer, poration def- 2082 its The current Section jointly persons “two or more inition severally shareholder. in- the same liable tort dispose prefer As appeal we of this * * persons property on the merits we have not examined at alleged plaintiff, injury caused Here the great length appellee’s motion to dismiss. preventing Er- opinion express We therefore no thereon. legitimate langer presenting from at- judgment The in favor of William tractions, separate and dis- was not the Theatres, Goldman and William Goldman injury have been caused tinct said to upon Inc. party complaint the third filed party the third refusal defendants’ herein bewill affirmed. permit plaintiff to first run movies. show original appellants The contention appears

was their third namely, complaint, party that Goldman conspired Theatres, with his Goldman showing prevent plaintiff Inc. to run Anti

first in violation of movies Trust Laws of the United States. This argued length in the district

was complaint court. dismissed America, UNITED STATES of ground Theatres, that the Goldman Plaintiff-Appellee, conspire itself, Inc. could “not i. e. v. officers, employees”. Ap its pellants CLANCY, Thomas D. James F. Prindable urge court over the district Kastner, and Donald Defendants- looked the circumstance that Goldman Appellants. corporation. shareholder of No. 12815. He was indeed a shareholder Gold Appeals States Court of Theatres, only Inc.; man its shareholder. Seventh Circuit. But the three cited to cases4 24, March 1960. differentiation on account this from holding the sound in Nelson Radio & Rehearing April 14,1960. Denied Supply Co., Motorola, Inc., Inc. 5 v. 1952, 914, 911, 200 F.2d certiorari denied 1953, 783, 345 U.S. 73 S.Ct. 97 L.Ed. impinge 1356 do not on the fundamen

tal rule of In those Nelson. three deci separate corporate

sions there were con acting spirators. one, Here there Bearing Corp. 4. Timken Waldrip, Roller Co. v. See Hudson Sales States, 1951, Cir., 1954, 71 S.Ct. certiorari denied 1199; 95 L.Ed. 648; Kiefer-Stewart Co. v. U.S. L.Ed. Joseph Seagram Sons, 1951, Whiteley Dairies, E. Inc., & Foremost D.C. W.D.Ark.1957, F.Supp. U.S. S.Ct. L.Ed. Co., 1947, United States Cab v. Yellow affirmed F.2d 36. L.Ed. Waller, Jr., O’Connell, Paul P. F. John Waller, 111., & Louis, O’Connell St.

East ap- cau- 111., counsel, Louis, individual defendants without St. East jury. tionary instructions to pellant. Atty., Raemer, East S. refus- Clifford M. U. the court erred in Whether McKnelly, Louis, 111., ing reports Asst. production St. Robert D. to order the appellee. Atty., Danville, 111., U. S. federal for use the defendants during cross-examination, pursuant to 18 Judge, HASTINGS, Chief Before U.S.C. 3500. § Judge, SCHNACKENBERG, Circuit Judge. STECKLER, Whether the court erred in refus- District ing acquittal to order both before Judge. STECKLER, District after verdict. Clancy F. Prin- Thomas D. and James 7. Whether the court in in- erred defendants, dable, two the named structing refusing give making district court convicted certain instructions defend- tendered of a fact to material false statement ants. Treasury agents of the United States 8. Whether the court erred in refus- Service, Department, Internal Revenue ing grant hearing a new trial after 1001; of will- in violation 18 U.S.C. § possible evidence of on the misconduct fully attempting to evade a substantial part petit juror. of a due and amount of owing by excise taxes issues, In order to resolve these Chapter subchap- virtue of analysis somewhat detailed of the record A of the Revenue Code of ter Internal is essential. (26 4401), U.S.C. in violation There is evidence the record conspiring and of U.S.C. § defendants, Clancy, the Thomas D. James subchapter, that violate in violation of Kastner, F. Prindable and Donald Kastner, were 18 U.S.C. 371. Donald the § partners Company, in the North defendant, Sales other was on the convicted engaged accepting and were as such in counts, latter two was found wagers, races, principally on guilty horse of the false statement count. Trial defendants, Louis, East Illinois. by jury. St. The was doing business as the North Sales Com points Defendants raise numerous by pany, Clancy, applied Thomas for and appeal, all of which can be classified un- special stamp received tax for the the following headings: der the broad ending year fiscal June 1957 as re legality 1. The of the search and sei- quired by spe 26 U.S.C. 4411. In the zure of defendants’ books and records. regis application cial tax return and 2. Whether the district court erred try-wagering, the business address overruling defendants’ motions to dis- designated Large company was “at —-2401 grounds miss the indictment on the that Ridge Louis, Ave.—E. 111.” St. How grand petit juries illegally and ever, application produced when was drawn and constituted. by government witness, a at the trial 3. Whether the court committed re- Large” penciled words “at had been refusing versible error in to ask certain through.1 monthly The defendants filed questions on the dire voir examination wagers by accepted tax returns them jurors. petit reported paid tax and be due there 4. Whether the court District Director of erred in on to the Internal admit- ting Springfield, certain exhibits evidence, into at Revenue Illinois. De and admitting testimony as to received a letter from H. statements fendants J. government witness, Joseph Large” 1. The “at tified that words were not M. Heckelbech, applica- Chief of the out when he filed the Collection Divi- stricken Office, tion; application the District sion Director’s was not re- that say Large” being incorrect; could when the words and “at him as turned to stamp pursuant However, had been stricken out. witness had been issued that Waller, bookkeeper, application. the defendants’ tes- to the April ville, Illinois, Director, dated White, and was told them that District they picked up ordinarily a recent horse them bets and informed which liability telephone received their tax bets at Blaha’s Tavern examination years January, December, through Agent Collinsville. Busch examined a change transcript nec- pertaining of toll that no calls to Bla indicated using Tavern, the ha’s reported Telephone and Bell essary Illinois tax to the records, accepted filed. as established that between Au would be returns gust 11, January 25, 1957, 1956 and during indicates record The twenty-one (21) telephone calls were May fed- early April, March, made between Blaha’s Tavern and 2300A Serv- Revenue Internal eral Street, State East St. Louis. The tele led them which activities ice observed phone at 2300A State Street was sub gambling operation a believe Agent scribed Leppy. one John premises located being conducted Yerly application examined the for the Street, East State 2300A at 2300 occupational stamp tax of Charles J. floor first Louis, Illinois. St. Kastner, Prindable, Jr. and which stated business occupied premises was their business address was 2401 Tavern,” the sec- “Zittel’s known Ridge Joseph Avenue.2 Heckelbech, M. Ac- apartment. 2300A, floor, anwas ond Chief of the Collection Division in the war- cording for search affidavit to the office Spring of the District Director at wagers with placed Agent rant, Johnson field, examined custody records Tav- “Murphy” Zittel’s “Heine” gambling stamp determined that no there, being a bartender ern, latter Leppy, had Henry been issued to John D doorway walk Heine and observed Zittel, person at 2300A upstairs over leads which the bar behind Street; State and that no ex money place en- toilet men’s cise tax anyone filed returns been close area and velopes in a stairwell at that address. envelope up picked later Heine door. Upon evidence, Agent this ap- contained Johnson the door from behind winning plied to prior district Agent court for two Johnson’s search warrants, one for floor, the observed scratch first also and Johnson the bet. forms, money building other for the racing second floor of and 4-inch sheets, the at 2300 pads bar, (Here and 2300A on the State paper back Street. 6-inch appeal only tables, on we bar, the are on in concerned bar, under the the Agent search floor, 2300A.) of the second Mueller in the safe. and The stairwell part agents carrying sack, performed other the similar a a man the observed investigation carry set forth in sep- banks their furnished to sacks were, by tavern, arate speak affidavits which money, reference, to Mur- enter the Agent part a go of bartender, and phy, behind Johnson’s affidavit through up- for search for a door which warrant leads and bar second Agent Agent addition, Yerly floor. J. observed Charles Edwards stairs. Kastner, cor- Jr., much of of roborated brother the defendant statement of Agent Yerly. Agent Kastner, and defendant Prin- affidavit of Donald bookmakers, Johnson the search dable, well known enter warrant for both states, m., part, second floor at 7:09 7:17 Tavern and he Zittel’s a. positive premises May Agent respectively, on “ * ** shortly Ryan entered tavern after being are used in the morning Kastner, on J. Jr. Charles carrying ‘Wager- conduct on of a * * * go Prindable enter and behind and saw ing Business,’ against through a door that leads the bar laws of the that is to Agent upstairs. Buescher interviewed say, wilfully attempt- the offense of ing two well known bookmakers Collins- to evade and defeat a im- tax actually address was Large” designation This the residence after the “at had been Clancy, appeared penciled defendant out. posed currency paratus, Laws the Internal Revenue * * * * * thereof, payment and the records wit, special year tax $50 May 6, Agent Kienzler, On ac- engaged paid by person to be each companied by agents, several exe- wagers accepting the business of cuted the second floor warrant search * * wilfully *; and the offense of notes, and seized defendants’ records, currency books failing prepare with the and file $2,160, in excess of * * * Spe- district Director racing forms, telephone sheets, scratch Application for cial Tax Return and Registry-Wagering bills, book, a check and several metal 11-C) (Form boxes. Defendant Donald Kastner was * * * operator in the name of the present apartment in the search when the namely, business, one John said agents was made and informed the * * Doe Clancy, he, partners and Prindable were court, Company there The district satisfied that in the North Sales that the probable partnership stamp, was wagering cause to believe that had a tax which Clan- of, being cy Agent business was conducted took care testified Kienzler premises personally in violation of on the described that he did not determine at laws of the United issued that said time whether the North Sales Com- May 5, requested pany actually obeyed stamp, warrants on search had a tax floor warrant was ad- 1957. The second command the warrant in search- Agent ing “any Special seizing Ap- dressed the items described. Intelligence parently Division of the Internal no arrests were made at Revenue Service of the United States time of the raid.

America,” and authorized the seizure of: Subsequently, information obtained “ * * * records, to wit presented divers from the seized records was books, memoranda, pads, grand tickets, jury which, July 25, 1957, recording papers tablets and ceipt money the re- returned a five-count indictment money from and the the defendants. The first three counts charged paid op- Clancy, out in connection with the Kastner and Prindable severally wagering making of a eration business false statements files, desks, the Internal premises, Revenue Service such ta- said storing violation 18 U.S.C. 1001.3 receptacles Count bles charged IY each defendant with an at books, memoranda, tickets, tempt to evade a substantial amount of aforesaid, papers

pads, tablets and during year excise tax the fiscal receptacles in the and divers nature ending June kept 1957. In of envelopes this in which of money there * * * alleged.4 specific by patrons count unlawful acts were won instruments, ap- conspiracy tools, Count V was the count and divers I, Clancy charged any except with In Count was know other horse him- 3. bookies Agents Clancy making self, to a false statement Donald Kastner. Buescher on December Moehel and alleged: 4. In it was substance North when he stated that March, During 1. re- employees Company had no Sales agents wagers actually ported $11,913.50, of but accepting other than Charles bets wagers $103,- received the amount of Wagstaff. Kastner, Malcolm Jr. and J. 441.30. II, charged Kastner was Count kept 2. Defendants false books Agent making a statement to false identity agents. of concealed May 6, 1957, day Kienzler on Defendants concealed and withheld 3. by stating raid, that he did not know records, income, of and lists of sources accepting wagers individuals names agents. Company. of the North Sales places maintained secret 4. Defendants III, charged Prindable In Count was doing business. Agents making a false statement to false All three defendants made and Buescher on December 5. Moehel government agents. statements to when he stated that he did not placed substantially alleged acts as names would be in the box. same back Carter also stated he did not know that IV. Count many box, how names were in the but guilty pleaded not The defendants possibly estimated about 200 or 400 to August July 30, fol- 14th and on complained Defendants that joint lowing, to dismiss motion filed grand according jury was not selected for return indictment and a motion the property law, and that was U.S.C. it suppress As evidence. and to chance, not selected “whim and here, motion dis- far as relevant caprice.” allegation upon an that miss based grand jury The court motion were denied the amended the members of the according grand grounds “selected, to dismiss on the that the drawn summoned jury drawn; properly suppress attack- had been The motion to to law.” Agent irregularity, if even there were Johnson as bas- defend- ed the affidavit hearsay; description prejudice ants had failed or the ed on show the warrant’s general; rights; violation constitutional of the articles to be seized as too cause; probable and that the motion cording too ac- and the was filed late the existence of allegedly private to local books and rules. seizure papers. motion Defendants also filed a During trial, the course of the inspect transcript of evidence and court admitted the search warrant and grand jury. record the foreman of the (Government 29a) return Exhibit entry July 25, 1958, the various records and articles seized dated (Government raid Exhibits 54 court denied all three district through 112) held, into evidence. Defendants inter above motions. The court illegal objected charges alia, respect on the basis of an search that the ground relevancy grand allega- and also on were mere “naked materiality tions”; exist; probable had not been shown. did cause Agent merely specifical- Kienzler stated that these and that the items were seized ly were the articles seized in the raid. described the warrant and were custody Later, however, private papers, the chain of books or but rather Agent “property exhibits was established and used in the commission of Exhibits Mocheltestified he had used crime.” through 79 to determine that the total May 8, 1959, On defendants filed an actually placed with amount of bets de- amended motion to dismiss with an af $103,441.- March, fendants in jury commissioner, fidavit of the Bohlen Carter, J. jury attached. In the affidavit the objected also ad- Defendants commissioner states names of generally mission into evidence of state- prospective jurors were solicited from allegedly them individual- ments including persons, super various school government agents. ly to Defendants juries drawn, intendents. When the were claim that such statements admis- Douglas clerk, Reed, he sepa and the H. making only as the one sible rately took a handful of cards from the them, conspiracy yet since a had not according box and sorted them to the established, and, to the state- been they place distance lived from the at Kastner, any of defendant grand ments that juries petit which the and were to conspiracy, existed, if it had was termi- function, namely Louis, East St. Dan- when nated the statements made. ville, Cairo, Benton, Only or Illinois. thought Agents those to live within a Buescher and Mochel reasonable testified Clancy they distance would interviewed be selected.5 Decem- The other that by stating 5. In this statement the Carter corrected affidavit Mr. mentioned ter actually distance was 100 to 50 to 60 miles as a the “reasonable distance.” subsequent testimony pro- Mr. Reed testified this ex- miles. in another proceeding ceeding, part distance that the made a record traneous approximately this proof by defendants, 150 miles. an offer Mr. Car- ing by telephone Press Waller. bets 2300A State officeof ber They 1956 in the during interview Street also of one the at the residence testified that Lampe. explained as Vernon Clancy in detail other defendants He identified the Company; partners in which were recorded North Sales manner bets place they particular and the also no business conducted. Kastner stated that had n named only they “agents” accepted business; two had of agents. various who agents Company, bets cluding in- for also testified the North Sales they keeper, Clancy Behnen, use the not Merlin stated that did tavern place Pohlman; place telephone, to and Otto arrangements and described the but went wagers. “agents,” accepting i. The statement had with the e., during forty fifty by Clancy bets, re- ¡per with or in which this interview cent “agents” having any employees 'forty fifty per spect or not receives Kastner, forty agents, profit of the than Charles J. cent shared Wagstaff, fifty per loss, per was the and Malcolm cent of the or five cent Jr. H. bets, I indictment. five basis of Count of the in which the received gross per cent of the amount of bets Agents and Mochel also tes- Buescher placed. on De- tified an interview had 14, 1956, in Wal- cember with Prindable Agent After Buescher had testified office, presence of Donald ler’s Clancy Prinda- the interviews with according interview, Kastner. ble, the defendants on cross-examination testimony, that he Prindable stated prepared, had established that Buescher paid person he off and that bettors signed superior, and submitted to In answer never “laid off” bets. report pertaining Mochel, a written asking question rec- could whether he re- interviews. The the substance port take a bet ommend another bookie to composed after Buescher larger handle, Prindable than he could Buescher did returned to his office. any other stated that he did know of longhand notes at the time take interviews, Clancy except himself, bookies horse report preparing but statement Donald Kastner. The latter agreed contemporaneous and used indict- was the III basis Count Agent longhand Mochel. notes taken ment. Agent During testimony Minton Agents brought per- and Minton were it was out that Kienzler he made a simi- testify report superiors, lar circumstances, mitted to the substance of to his under like following conversation Kienzler and the between the conversation defendant Kienzler Kastner at between the time of the Donald Kastner at According May 6, testimony, time of the raid. to the raid on Kast- junior partner ner stated that he was a production Defendants demanded and clerk of Company, the North Sales reports during these use cross-exam- telephone answered the and took bets. provisions ination under of the so- He worked on a commission basis. Kast- “Jencks Act.” called 18 U.S.C. ner named the other two defendants as requests court denied The district partners Clancy and stated that took ground reports were not care of the stamp. records had the tax contemporaneously made views, with the inter- interview was the This basis of II Count subsequent However, thereto. of the indictment. require the the court did Government to Supervisor Agent Hudak and inspection Mueller to the defendants over turn to the testified substance of a second in- examination, longhand direct after terview Kastner in the officesof at the time of the taken interviews Federal defendants receiv- the St; Agent Building Louis, July in East taken Mochel on notes dur- ed the Clancy ing interviews with and one-half Prin- two'and months the after the December, 1956, According and the 628 seizing argument, records, press. de- of they argue their and for their books register they the upon the which that fendants attack basis since had wagering issued, ed, paid of the stamp, was itself, the form received a warrant wagering prob the taxes, nature and the some there no warrant was pursuant thereto. able cause But, articles seized seizure of books. for their Government, pointed by as out the de- paramount first we It seems that argu by what defendants overlook such probable was whether there termine ment is the fact was the warrant being com- a crime cause to believe was seizing purpose not issued for the affi- premises the at the to which mitted their books. warrant was directed direct- warrants were and search davits premises to certain the sei and ordered say prob- nowas ed. Defendants there property zure of therein. It described affidavits able cause and the did not order the seizure of defendants’ hearsay. upon based invalid because property because at it was not known the prob determining whether operating time who was the of a exists for the issuance able cause business at address stated determined it need not be search warrant agents’ From warrant. observations actually charged has offense whether the probable there was cause to believe that being committed; only concern been wagering activity being operated a was reasonable has the affiant whether in violation of the States, especially of the United laws making of grounds, time at the premises since the had issuance the affidavit reported not been to the District Director being believing warrant, for the law required 26 U.S.C. 4412.6 See premises be searched. on the violated States, Merritt United v. 1925, States, Dumbra v. 249 F.2d 19. 1032; 441, 546, L.Ed. 45 S.Ct. argument The defendants’ Cir., States, Carney v. United search warrant the second floor denied, certiorari F.2d building upon was invalid issued because 400. L.Ed. 68 S.Ct. U.S. upon hearsay, affidavits based is likewise facts where cause exists Probable cursory A without merit. examination officers’ within and circumstances knowledge, upon of the affidavits which the warrant they rea have and of issued, regard hearsay, without trustworthy information, are sonably knowledge only based a be in themselves to warrant sufficient personal observations, affiants clear of reasonable caution man lief ly takes this case of the ambit of the out Brinegar being v. committed. crime is e., defendants, cases relied on i. 175- Sparks Cir., v. United 1879; Dum 93 L.Ed. 61; F.2d v. Crank United States, supra. bra United 981; Simmons argument appears from the It States, Cir., 1927, 85; F.2d they would the defendants Clark, D.C.D.Mont.1927,18 only their status court consider have this Lassoff, and United States v. D.C. disregard gamblers, as licensed knowledge E.D.Ky.1957, F.Supp. 944. respect taking place State the activities As to the form of the search They warrants, assume the war address. Street they defendants state that express purpose for the issued rant was were void in that were not directed Registration “(2) if be is “§ liable for tax under sub- Requirement. “(a) person chapter A, place re- each of business where —Each pay special activity quired tax under this which makes him so liable register subchapter on, place shall with the official carried is name charge person engaged of the internal revenue dis- of each residence who receiving wagers trict— him or on his be- ** residence; “(1) place half; his name

629 case, supra, person, but the Nuckols a search named particularly property was held class; warrant sufficient which com- to a rather “ * * * gam- manded capable seizure of accurate not seized was be words, ing tables, gambling devices, (cid:127)determination, horse race inasmuch gambling slips, * * tickets, paraphernalia and papers, records “letters, description; books,” said, The court F.2d at a is not sufficient 99 may page exploratory not be 355: searches or without for to look evidence gambling “In the search of a es- warrant, invalid an a and that search descriptive tablishment particularity the same by it what not made lawful search is necessary is as in not light. brings to goods.” the case stolen 3105, is By it terms of U.S.C. 18 States, supra, inAnd Merritt United v. provided: 20, page approved 249 F.2d the court warrant, may affidavits a search and the in all “A search warrant warrant, by any search where de- the affidavits of the officers served cases be “ * * * only lottery by scribed tickets an in direction mentioned its paraphernalia and other indi- ‘which will to serve officer authorized law operation being per- cate a numbers is con- warrant, no other but such son, except ” premises.’ ducted in of the officer aid being requiring it, present and he As to the contention that the search acting in its execution.” evidence, exploratory, in view forth, have heretofore set what we practice Although it would be a better agree that we cannot the search particu the search to direct warrant a merely exploratory. name, statute does not lar officer long di require warrant is it. So as the remaining point raised with civil of the United rected to officers respect suppress motion to is that to the in or assist States authorized enforce was unreasonable the search and seizure enforcing any thereof, law otherwise in contravention of defendants’ warrant, authorized to serve such though even rights Fifth under the Fourth and named, specifically they not are Constitution, for the Amendments to the identified, (c), it is Rule 41 sufficient. private books, papers records, reason that F.R.Cr.P., U.S.C., 18 v. Gandreau United subject seizure, are not documents States, 21, 25; 1 see 300 F. authority war even under a search D.C.S.D.Fla.1927, Smith, United v. contend, they protection, ex rant. This 788, 789; F.2d United States Nes v. partnership papers. books and tends 570, 571; tori, D.C.N.D.Cal.1925, F.2d point prop make the Defendants States, Cir., United Boehm v. most, seized, erty constituted, evi “at Tolomeo, 497, 498; F.2d States v. United instru dence and did constitute the D.C.W.D.Pa.1943, F.Supp. 737, 738. mentalities for the commission crime against United States.” That to be seized the articles warrant de argument virtue of search were is that their The basis of particularity, scribed can with sufficient registry- application had filed questioned hardly of the au be view wagering had, fact, obtained States, thorities. Nuckols v. ques- stamp period for the App.D.C. F.2d reports paid monthly tion; filed denied, certiorari Floratos reported. tax full amount of the Con- States, argued 83 L.Ed. sequently, it that the books and 401; Merritt Cir., records “instrumentalities” of also, Clay see Unit crime except ed not be seized could therefore denied, their certiorari contravention rights. constitutional way, 2 L.Ed.2d 69. Stated another it is in- recognizes Thus, in federal laws the Takahashi sisted that so far as the case engaged types concerned, ledgers, were the rule that defendants enterprise, and other were bills legitimate and, for that records, may of books and instru in a the be books, reason, records papers and of a the mentalities gambling hold that crime. We not paraphernalia, were that in connection therewith such used protected contraband, private papers, by defendants, used when used in the against Fourth of under the commission in violation of 26 seizure a.crime rely 7201, e., knowingly attempting Defendants U.S.C. i. § Fifth Amendments. States, tax, heavily upon United to defeat Takahashi and evade the v. equip that case part In of 143 F.2d 118. becomes the outfit “a or charged actually offense,” con- ment used to commit an the defendants spiracy, supra. or- Takahashi, an executive as mentioned in with violation of See country designating Foley supra; the China as United der Merritt v. li- application States, Cir., 1933, for an v. F.2d of destination storage tanks export new certain certiorari denied 289 U.S. 53 S.Ct. cense country of Japan 77 L.Ed. fact Landau when causing destination, Attorney, ultimate be statements and fraudulent false with- application matter in the a made authority good Furthermore, there is of jurisdiction Department in the holding books, and' records for papers docu- Custom officers seized State. at bar were seized the case including tele- question, code ments in private papers clothed with such as to be grams, letters, papers, indicat- and other immunity seizure and from use ing tanks true destination of the defendants under the Fourth appeals a Japan. held that The court of Amendments. Under U.S.C. §§ Fifth 4403, suppress sus- have been motion to should 4423, 6001, and United States. contention tained and overruled Regulation 325.32, Treasury the- evidence papers than mere were more books, required keep defendants were but were themselves' the instrumentali- reflecting transactions car and records of a ties crime. The court substance wager of in the course taxable ried on a although application said that for the activity. ing to be records were Such instrumentality itself license would be an day-to-day kept and were re on a basis crime, commission for the of a the tanks inspection quired available to be papers themselves and taken from the de- by times. Revenue officers at all Internal mere fendants were of inten- evidence an Boyd of the case part tion on the of 623-624, pages U.S. at commit a crime under both the sub- of case relied 29 L.Ed. in the indictment. stantive counts defendants, court stated: words, of or malum evidence crime goods is au- of stolen “The seizure Specifically said, the court futuro. law; the common thorized page 124: goods for a of forfeited seizure “The distinction must be drawn laws, or con- the revenue breach part papers between which are payable on avoid duties cealed equipment actually outfit used Eng- them, been authorized has to commit as the offense such cen- for at least two lish statutes ledgers and bills to maintain used past; and the like seizures- turies exemplifiedby the situation nuisance by our authorized own been have developed in Marron acts the commence- revenue * * 192, 199, government U.S. *. ment papers passed by L.Ed. and those act was the same- this As simply intent, congress proposed adop- are which evidences which original design agreement amendments to the- even of the tion the constitution, the- it defendants.” is clear quired by body kept not re- to be in order law did members may gard be informa- this there suitable seizures searches and ‘unreasonable,’ tion are of transactions are the kind as governmen- prohibition appropriate subjects embraced within also, So, regulation, tal and the enforcement the amendment. ” validly of supervision be exercis- to restrictions established.’ authorized by revenue over officers of the ed said, In has view of what been here custody of ex- manufacture or the we conclude that the court commit- trial articles, entries and the cisable denying ted no in error defendants’ the required to in law thereof books suppress. motion to inspection, kept are for their foe up next selec We take the necessarily excepted of the cate- out original tion issue. We note that the gory searches and unreasonable of specify motion did dismiss to seizures.” grounds supported was not com against exception privilege This to the petent Further, evidence. amended the and searches self-incrimination dismiss, most, complained motion to at of seizures, known the be has come to as irregularities mere too late was filed exception,” “required has records according to local district the rules of the recognized numerous cases. Sha been in court.7 1, 1948, piro States, 335 United U.S. significant It is to local note that the 1375, 32-33, 92 17-20, 68 L.Ed. S.Ct. substantially rule is the former same as States, 1946, 1787; 328 v. United Davis Section 556a Title 18 U.S.C. That 1256, 582, 589-590, 66 S.Ct. 90 L. U.S. Wright statute was discussed in v. Unit- 1911, 1453; States, United Wilson v. Ed. 405, States, Cir., 1948, ed 8 165 F.2d 361, 538, 380, 31 S.Ct. 55 L. 221 U.S. right The court held that to chal- the States, Cir., 771; 8 Smith v. Ed. 1956, lenge grand jury panel waived the 268, 260, de F.2d certiorari 236 challenge seasonably pre- as the was not 148, 909, S.Ct. 1 L.Ed. 352 U.S. 77 nied ten-day sented in accordance with the 989, rehearing 118, 353 denied U.S. 2d Scales In the limitation. recent case 1147; 1280, 1 L.Ed.2d Beard S.Ct. 1958, Cir., F.2d v. 21, 1955, Cir., grounds, 355 U.S. reversed on denied, 84, 92-94, certiorari 350 U.S. 1, 9, 19, court of L.Ed.2d the rehearing 753, 48, 100 L.Ed. 76 S.Ct. appeals de- affirmed the district court’s denied, 76 S.Ct. refusing to cision in entertain a motion also, Meltzer, Required See L.Ed. 794. grand challenging jury. the The de- Act, Records, The McCarran upon based cision was Rule 12 of the Privilege Against Self-Incrimination, 18 Procedure, Rules of Criminal Federal (1951). of Chi.L.Rev. U. the lower inasmuch as court had rule no page Shapiro, supra, 335 U.S. at comparable to Rule 27 of the lower court page court stat- 68 S.Ct. noted, There in this the court case. ed: case, upon information instant “ *-»* privilege which ex- motion was which the based was at all private papers cannot be as to times available the defendant. ists defendant relation ‘records re- was less than one case maintained appre- has Rules of United States defendant not been Dis- event Rule the time the the Eastern hended at indictment Court District of trict plea provides: shall Illinois, be filed within 10 found such days apprehension, plea “(1) his A abatement after unless lie indict- legality ap- shall sooner have or his counsel been directed ment jury returning prised indictment, grand said his in which case indictment shall days plea filed be within 10 after the court unless shall entertained not be apprised days shall have filed within 10 he or counsel have been shall been his same date the return indictment.” indict- his however, ment; provided, showing making motion, year delinquent appeal in the absence of a clear delayed Lebron, 2 al- of here abuse. United whereas the defendants States v. significant long. Most most twice 222 F.2d certiorari however, denied, us, failure is the defendants’ any prejudice Speak the violation L.Ed. to show any rights, two either with constitutional 563. The grand jury, petit respect questions or the tendered the court8 asked designed prejudice jury. uncover against gamblers religious scruples motion to strike defendants’ against gambling. questions The other alleged array im because merely tendered were argumentative.9 cumulative petit choosing proper and selection find we As to this issue jury jury been was filed after judicial no abuse of discretion. argument, selected. their States, 1946, 329 v. has Ballard United The trial likewise cite court 187, 261, L.Ed. 181 and 67 91 U.S. S.Ct. broad discretion in the of admit order States, 1942, ting 315 U. v. trial. States Glasser United evidence at the United 873, 869, 60, 457, Bender, Cir., 1955, 680. Those L.Ed. S. 62 S.Ct. 86 v. 218 F.2d 7 systematic 920, denied, involved exclusion cases a certiorari 660, 349 U.S. jury panel partic because a 99 articles from the L.Ed. 1253. Here the Nothing group. kind or of the in the ular sex seized in the raid were relevant defendants, short, attempt prove we involved this case. is that nothing wrong engaged find with the manner were in a business jurors’ prospective paying were re which names full amount of the quired tax, of International obtained. See Local 36 fact Gov excise which the prove of Ameri Fishermen and Allied Workers convic ernment had secure a States, Cir., 1949, 9 F. indict ca v. United tion on IV and Counts V of 341; 320, later 2d Scales v. ment. of the were Some exhibits irreg Agent supra. Nor do we find material used Moehel in gross drawing ularity testimony in the of the names received that defendants wagers jurors prospective $103,441.30, in were sum amount of those who in the jury duty. petit March, moned 1957. 360, Gottfried, 1948, Cir., 165 F.2d v. agents’' The admission of the 860, 364, denied, certiorari testimony cautionary without limitation 738, 1139, rehearing de L.Ed. S.Ct. concerning four the substance of the 883, nied, 910, 92 L. not, the defendants was interviews with Skidmore, United States v. Ed. view, Evidence in our reversible error. 604, Cir., 123 F.2d 607. co-conspirators may be of admissions Turning alleged presented prior next to conclusive estab conspiracy com in the of the court’s conduct the voir lishment without error long conspiracy examination, it well error so as the settled mission of dire during the within the is established at some time examination is discretion such judge, trial. trial and the exercise of course United States Sansone, 2 231 F.2d discretion will not be disturbed on such laws, gambling you Sunday laws, Do School? shows that “2. teach 8. ** prejudiced you against be the State of Illinois violated. Would “7. accepts wagers?” anyone who yon separate “5. violation of Can they charged in the law are you gambling it- Do believe “1. indictment, is, the laws of morally immoral, per se, wrong? self is separate apart United States any, denomination, if To what do “3. state laws? * * * violation of you ? teach so you prejudice against “6. have a Do the Court ask also ask “4. We operat- engaged people give jurors in the business of if these defend- can ing though horse books?” the evidence a fair trial even ants co-conspirator, denied, S.Ct. dence U.S. another certiorari here, if, there is no 1500. Since the reversible error 100 L.Ed. competent there is other evidence suf- from all the evidence could conclude sought conclusively prove conspiracy ficient to estab- the facts to be es- had been lished, admis- tablished such Massicot no error in the declarations. there was ground. States, Cir., 1958, It v. United 254 F.2d sion of the evidence on 58, 64; conspiracy, Papadakis if is likewise clear that December, Cir., any, terminated in had not interviews the time The next contested issue is whether the Clancy Prindable, and on March refusing trial court erred to order the interview with the time of first produce Government the memoranda interview with Kastner. The second reports government pur Kastner, July presents Act, suant to the “Jencks” 18 U.S.C. § Although question. no ar- more difficult rely 3500.10 Defendants the decision time, up rests had been made to that Bergman gambling operation had the defendants’ 1958, 253 F.2d 933. raided, been and their and rec- books Since the “Jencks” Act was seized, ords some two and one-half outgrowth the direct of the decision prior However, months thereto. defend- States, 1957, Jencks v. United 353 U.S. charged subsequently ants were not 77 S.Ct. 1 L.Ed.2d operating illegal gambling business, an interpreted statute must be read and attempting but with to evade a substan- light of that decision. Palermo tial amount of tax. The excise States, 1959, reasonably district court could find that 79 S.Ct. 3 L.Ed.2d 1287. “The conspiracy to violate U.S.C. § major limiting Act’s concern is with had not of the terminated at the time regulating government access defense July 23d interview. usual criterion designed papers, deny and it is such determining the conclusion of a con- access to those statements which do spiracy co-conspira- is the arrest of the satisfy requirements (e), or do tors. States, Sandez v. United subject not relate to the matter 243; 239 F.2d Cleaver Unit- testimony. witness’ It would de indeed States, Cir., 1956, ed design feat this to hold that the defense Scarborough 769. Cf. may argue see statements in order to Moreover, 232 F.2d 412. whether it should be allowed to see them.” even if the declarations of one co-con- States, supra, Palermo v. United 360 U. spirator erroneously are page received as evi- page S. at 10. The ant) United States ment or United States which was made shall be the of the case. ment witness ery, testified on direct examination in the trial amination, statements brought by read: ernment witness or “(b) “(a) “§ 3500. produce any defendant, pertinent After inspection report the United Demands subject any agent has testified on a witness court statement (other order reports in the parts until said witness has criminal prospective shall, the United States than the defend- possession of witnesses the Government subpena, (as called production on motion of prosecution hereinafter direct ex- by no state- Govern- by statute a Gov- discov- of the ously made tion witness and verbatim recital tion ment.” subject trical, Government of the United States which relates to the has testified. defined) subsections the United or “(e) “(1) “(2) approved by him; ^[*****] thereof, by or other a written statement made The term relation to matter of the witness in the said witness to an stenographic, mechanical, (b), and recorded signed * * * which is a making recording, (c), of an ‘statement’, means— or otherwise or which the witness of such oral state- witness called (d) oral or a contemporane- agent substantially of this sec- as used possession transcrip- statement adopted by of the elec- said by rehearing denied, is distinction We think there type case here at hand between the L.Ed. 235. and those cases in which the Government Next, complain defendants produces an undercover as a witness the trial court reversible er .committed agent dealings whose with the accused agent’s testimony refusing acquittal, ror in to direct an subject are the of the grant in the alternative to a new trial. at the trial. Here defendants allegation, this identity government aware of the argue that failed to Government agents they at the state time prove allegedly the tax due ments basis They furnished the later paid by government fact not the various prosecution them. they witnesses who testified that re dealing were not with undercover ultimately ceived bets covered the de identity they

whose true know. did not argument upon fendants. This is based States, supra; Cf. Jencks v. Brad defendants’ contention the various States, Cir., 1959, ford v. tavernkeepers accepted who bets were- Prince, Cir., United States v. “agents” of the North Sales Com 1959,264 F.2d 850. pany, independent but rather bookies- production The final decision as to who were liable for themselves good must rest within the sense and ex per wagers accepted cent excise tax on perience judge guided by of the district them, notwithstanding the fact that Supreme the standards as outlined portion laid-off a of the bets to defend Court,11 subject appropriately to the Regulation Treasury 325.24(b).- ants. appellate limited review of the courts. The record that on cross-exam- shows significant note, counsel, It ination ernkeepers defendants’ the tav- that at request defendants of testified that the defendants’ counsel the required court exercised over them to the Government turn no control as to reject. However, defense, accept over to the for which bets cross-ex to usé longhand amination, the the record shows that all but one notes taken at also engaged directly they the time of the of testified that interviews. In view were this, unwilling agree by we are to of that there one the defendants to receive judicial wagers, was an abuse their of discretion on commissions received judge part They monthly the ing of the trial on a testified not order basis. also wagers production receiving they upon reported of the memoranda prepared by Company by the witnesses in them to the North Sales after the messenger completed, particular telephone. terviews had been A delivered form ly parts since of the memoranda were and scratch sheets to them sheets upon money interpretations picked up based the notes and received as either agents. money payment wagers, hold re for the We that such or left ports appears are not that all records- memoranda statements of winners. It meaning winnings- wagers computations within the statute. Ac cordingly, the defendants not en and losses were made defendants. were production Agent titled to their use in the Moehel his examina- testified records, States, supra; trial. Palermo United v. tion of defendants’ books and attempt 1959, Johnson v. to did not reveal differentiate lay-off 72; Borges regular 269 F.2d between bets and bets. 1959, U.S.App.D.C. 139, Likewise, report did not 270 F.2d defendants wagers Papworth any lay-off States, Cir., they accepted v. denied, July, 256 certiorari their tax returns through although they April, S.Ct. L.Ed.2d Supreme consideration, has Court said that nor that the statement be provide does statute not incon- admissible evidence. Palermo sistency supra, page between the and the 360 U.S. at statement testimony page witness’ is to be a relevant 79 S.Ct. at note 10. “[g]ross report required headquarters op- tionaries at the were during wagers accepted lay-off eration. amount month.” Further, defendants contend V, as to Count that there was no evidence circumstances, the Under these produced by agree an Government of tavern- could found that the have ment to commit an offense bookies, keepers independent were not However, United States. evidence of tax, rather for the themselves liable agreement express unnecessary. As is accepting the de bets for were this court stated in United States v. Calam fendants. See United Gordon, Cir., 1943, aro, 1957, 351, 356, page 176: Furthermore, we L.Ed.2d “ conspiracy] capable [A is seldom language statutory which would find no proof testimony may direct require prove that the Government things be inferred from the actual- allegedly tax due from the defendants ly enough done. It is if the minds paid by someone else. See was not parties in an meet unite 6419(b) U.S.C. and 7201. §§ understanding single way also contend design The defendants accomplish pur- a common prove “wil failed to that the Government pose, may be established fulness,” “knowledge,” or “intent” circumstantial evidence deduc- III, I, respect and V Counts IV tion from facts from which the again, Here the indictment. natural inference arises that theory, rely “independent bookie” overt acts were in furtherance of reported that the amount of bets design, pur- a common intent and * * * layoff bets, which defendants constituted pose. parties If the act good thought they have together faith did something accomplish report. stated, these heretofore unlawful, As conspiracy is shown.” jury.12 questions “The for the jury, considering Here, the all the evi- specific bad re willful intent and motive dence, reasonably could an un- find that * * * is, quired for conviction conspiracy lawful did exist. There course, inherently unsusceptible direct no jury’s upset reason for this court to Lloyd Cir., proof.” States, United 5 v. finding. See Pereira v. United 1955, 9, 14. 226NF.2d 1954, 1, 12, 74 S.Ct. 358, 98 L.Ed. 435. argu Defendants’ alternative ment, any ap proof of willfulness argue also Defendants that the only Clancy, plies Although to must likewise fail. trial court committed reversible error appears failing from give it the record in certain instructions to signed Clancy the tax jury alone returns they tendered, which and in charge records, books and it wrongfully instructing of the jury as was also established Prindable the law case. haveWe examined partners enterprise Kastner in the were the court’s instructions and find them as jury proprietary The interest. to be a whole correct in law and fair to reasonably find from evi could all the materiality the defendants. The two dence the latter also had in false statements Counts I and III of requisite This intent. case is not like question the indictment is a for the court Ingram in jury. situation Alu, and not United States v. 1959, 672, 1314, 360 79 S.Ct. 3 L. 1957, 29, 32; U.S. 246 2 F.2d upon defendants, 1503, Parker, Cir., 1957, Ed.2d relied F.2d 943, 950, denied, reversed the 836, where the court convictions certiorari 355 U.S. relatively 61, minor func- two clerical 48. 78 S.Ct. L.Ed.2d not 12. The evidence that defendants did or tax returns could be considered segregate lay-off showing bets their own books as willfulness intent. True, excluding justified defendants were entitled the court is then theory participation on their of the him instructions from further any case for there foundation which trial. Christensen v. United though they evidence, Cir., 1937, 152, Here, did even 90 F.2d 155. any testimony. present attorney not refused from the to withdraw case; Corporation, qnd States v. Indian Trailer cir- we hold that under such Cir., 1955, 595, cumstances, it dis- was not an abuse of Phillips, F.2d States v. cretion for testimony. the court to to hear his refuse they However, not en “resting upon mere titled instructions testimony The of Mrs. Simmons speculative assertions manufactured plainly de insufficient to wholly air.” thin United States allegations juror fendants’ who that a Achilli, Cir., 1956, 234 actually petit jury served on the had an denied, 352 U.S. 77 S.Ct. certiorari falsely swered on voir dire examination: 1 L.Ed.2d vacated against gamblers. prejudiced and was 588, L.Ed.2d af 77 S.Ct. Also, the- clear from it is 995, L.Ed. firmed 353 U.S. trial court’s memorandum that defend rehearing 2d denied 354 U.S. objections quali ants waived the 1 L.Ed.2d 1540. they juror petit fications press A defendants’ ten review of party here. If knowl obtains upon appeal dered instructions relied edge during progress trial of a partially in are either reveals part he- juror, misconduct on the of a (Instruction VIII), cov correct in law object once, op must or as soon as ered in court’s instruc substance portunity presented, or be considered' supported (Instruction XIX), tions by having objection. as See- waived (Instruction III), or ab the evidence Merely calling 89 C.J.S. Trial 483. IX). (Instruction stract irrelevant matter to with the attention of the court error reversible The court committed no insufficient; any objection out thereto is refusing give instruc tendered such court, upon and it is not incumbent tions. respect its- to take action with thereto on Finally, respects the defendants’ own volition. 89 C.J.S. Trial § alleged argument concerning major last during defendants knew of this matter trial, juror, part misconduct on the of a pursue fully did make it the court’s refusal to allow one the at- any a motion of kind. Under cir these torneys testify for the re- defendants to cumstances, ob waived garding the same unless he withdrew jection arising therefrom. case, from the we find no merit. forth, For the reasons herein set we disposition The of a motion judgment affirm the district court. for new trial rests within dis the sound Affirmed. ruling judge, cretion of the trial and his subject only on the is to. review motion Judge, SCHNACKENBERG, Circuit judicial for an abuse of discretion. Unit (concurring). Empire Packing Co., ed States v. 1949, judge Moreover, The failure of the trial re- government integrity jury may quire production not be assail suspicion surmise, prepared by ed mere but of the memoranda certain presumed government presents that the dif- it is are true to witnesses However, conscientiously appeal. question their oath and ficult on this observe Judge of the court. United I am not convinced that Steckler’s the instructions Sorcey, holding subject wrong. on that is 899, 903. language in the he cases which Although attorney lends considerable cites testify behalf, competent his client’s conclusion. notes Attorney agents. Thus, United States in

Notes

to in notes raid. their testimony, dable Agent by Supervisor Hudak and in Kastner this interview admitted taken tak- petit juror during Kast- that a who served the interview the Mueller Building July privately pro- case had stated to another Federal the ner request spective juror prejudiced no that he was Defendants against anyone wagers; Agent accepted dur- Kienzler who any notes taken but on voir ing May 6, dire stated he was not conversation that the prejudiced. allega- support so of this Kastner. tion, defendants called one Mrs. Vera witnesses, but no called The defense Simmons, original of member the theory defense develop of attempted to jury panel, who male- testified that a government wit- cross-examination juror sitting privately next to her stated As to argument counsel. nesses did, that he felt the same as she after Clancy, count false statement the acknowledged prejudice Mrs. Simmons that theory apparently was defense the against gamblers to the court and was takers, than other individual bet the excused for cause. Mrs. Simmons could Wag- Kastner, Malcolm Jr. and J. Charles juror’s name, not remember the on which contractors,” “independent staff, were sat, side her he had whether he “agents.” The statement rather than actually petit jury. served on the One any not know Prindable, did he that counsel, Jr., Waller, defendants’ Paul P. according bookies, defense to other horse counsel, permission testify asked to as to when considered false seating arrangement jury panel, of the him asked had The in context. prove jurors and offered to that the male any other book if he could recommend sitting on both sides of Mrs. Simmons larger handle. could he to take a bet than petit jury, did in fact serve on the circumstances, reply, it under the His asserted, them, Beinfohr, that one of Clinton serv- know he did not meant that jury. ed as the foreman of the The take would other horse book permission testify, court denied theory un- larger principal The he. bets than less Mr. Waller would withdraw from the apparently and V was as to Counts IV withdraw, case. Mr. Waller refused to bets, reported, the excess of testimony was not heard. “lay-off” represented bets allegedly did defendants bookies. The judg- The court denied the motions for required re- know not port acquittal notwithstanding ment of gross part bets these as bets regard verdict and for a new trial. argue that all also received. Defendants juror issue, to the misconduct of applied of the evidence as to willfulness only Clancy, testimony court stated of Mrs. charge actually had who absolutely Simmons failed to substantiate books records. allegations of on the misconduct juror actually overruled defendants’ part The trial court of a who served. acquittal and submitted Further, motions for court stated that the de- jury. ten- reported The defendants case to the counsel had fendants’ mat- instructions, dered certain court a conversational man- ter to the this, give, during refused to court ner in chambers the trial. The fail- complain the court court at that time advised counsel that nothing their properly instruct the before it on which ed there was theory However, also ob- Defendants of the case. the defendants act. made no any kind, request instruc- jected of the court’s to certain motion or but wait- evidence, guilty supported ed until after verdicts as not tions confusing pursuing misleading being returned before to been mat- fully. circumstances, containing Under the ter all the jury, and as not concluded,defendants district court “fail- charged. of the crimes elements alleged challenge prejudice ed to Subsequently, defendants filed motions apt juror time.” notwithstanding acquittal the verdict grounds argument major new One of the for a trial. defendants’ first urged sup- of the latter of the motion to motion the denial concerns

Case Details

Case Name: United States v. Thomas D. Clancy, James F. Prindable and Donald Kastner

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 14, 1960

Citation: 276 F.2d 617

Docket Number: 12815

Court Abbreviation: 7th Cir.