UNITED STATES of America, Plaintiff-Appellee, v. William Norman HAWES, Albert Julius Hawkins, Robert Wesley Dean, Charles O. Borum, David Foshee, Charles F. Floyd, George J. Fay, and Joseph David Hawes, Defendants-Appellants.
No. 75--1695.
United States Court of Appeals, Fifth Circuit.
March 29, 1976.
Rehearing Denied May 5, 1976.
529 F.2d 472
Clinch Heyward Belser, Charles E. Baker, Columbia, S.C., for Joseph David Hawes.
Ronald T. Knight, U.S. Atty., O. Hale Almand, Jr., Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Georgia.
Before BROWN, Chief Judge, GEWIN and RONEY, Circuit Judges.
RONEY, Circuit Judge:
Eight criminal defendants join in this multifaceted appeal from their convictions for conspiracy to participate in an illegal gambling enterprise,
This case involves a six count indictment returned against ten defendants, charging them with operation of an illegal gambling business and conspiracy. Count One charged that W. Hawes, Hawkins and Dean constituted a gambling “enterprise,” as defined by
W. Hawes, Hawkins and Dean owned and operated Peach State Distributing Co., doing business as Peach State Music Co., in the manufacture, sale, repair and lease of a variety of coin-operated electronic games. In addition to legitimate devices such as jukeboxes and penny arcade amusements, Peach State marketed devices known as “Flashback” and “Red Arrows,” electronic pinball and slot machine games of chance which awarded “free” games to lucky players. Unlike the “one-armed bandit” used in Las Vegas, Peach State‘s devices did not pay off in cash. But a lucky player who did not choose to play his “free” games in the hope of greater winnings could cash in his winnings, receiving the cash value of the free games won from the club or establishment where the devices were located.
Peach State distributed its gambling devices through four jointly owned business entities. Ace Amusement Co., a subsidiary of Peach State, placed devices in middle Georgia men‘s clubs. Ace was divided into routes with “route men” responsible for supervising maintenance and dividing revenues with the clubs. Bann Equipment Co., d/b/a Star Music Co., and the Club Music Co. leased equipment which they placed in bars and social clubs. Finally, a nightclub, the Golden Cadillac Club, leased electronic gambling machines and organized card games such as poker and keno.
II. CONSTITUTIONAL ISSUES
A. The Constitutionality of 18 U.S.C.A. § 1955 : The Commerce Clause
The defendants urge this Court to reexamine and overrule United States v. Harris, 460 F.2d 1041 (5th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972), which held that Congress acted within its power under the Commerce Clause in promulgating
Defendants contend that
There is no doubt that the commerce power is subject to the due process clause of the Fifth Amendment. See Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381 (1950); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939); Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935); United States v. Chicago, M. St. P.P.R. Co., 282 U.S. 311, 51 S.Ct. 159, 75 L.Ed. 359 (1931). It is also now established that the basic concepts of equal protection apply to the federal Government through the due process clause of the Fifth Amendment. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Thus, the argument goes, the applicability of the statute only to those who conduct “illegal” gambling businesses must meet the rational basis test of equal protection applicable to a statute creating a criminal offense. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 274 (1972). The defendants then argue that Congress’ decision to make only illegal gambling the subject of the statute has no rational basis in light of the object of the legislation, i.e., to prevent gambling revenue from flowing into the hands of the organized criminal element. Defendants argue that there is no justifiable basis for the exclusion of legal gambling as a source of revenue for organized crime. Thus, defendants would have us fault Congress for finding that “illegal” gambling furnished a source of revenue for organized crime while ignoring what defendants assert to be an “undoubted and demonstrable fact” that organized crime has infiltrated and receives funds from legal gambling.
While this argument is intriguing, to say the least, it carries little weight. The law is clear that there is no requirement of national uniformity when Congress exercises its power under the Commerce Clause. See Currin v. Wallace, supra, 306 U.S. 1; Secretary of Agriculture v. Central Roig Refining Co., supra, 338 U.S. 604; Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1917). The Constitution is not violated when a federal statute incorporates the laws of the states. See United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958) (assimilative crimes,
Defendants argue that
We are unable to agree with this strained interpretation of an “illegal gambling business.” Even upon a strict construction of the statutory language, United States v. Bridges, 493 F.2d 918 (5th Cir. 1974), we find no requirement that defendants must themselves engage in the act of illegal gambling in order to operate a gambling business. The definitional portion of
D. Section 1962(c): Vagueness in the Application
The defendants’ attack on Counts One and Two of the indictment focuses on the meaning of the term “enterprise” as defined by
We cannot agree with this line of reasoning. In its classic formulation of the standard for establishing unconstitutional vagueness, the Supreme Court held that a penal statute “must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” If “men of common intelligence” must guess at the meaning of a statute, the statute violates due process of law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). See also Palmer v. Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9. L.Ed.2d 561 (1963); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). By this standard, quoting from
A. The “Enterprise” Described in Counts One and Two of the Indictment Falls within § 1962(c)
As a variation of the foregoing argument, defendants contend that Peach State Distributing Co., Bann Equipment Co., the Golden Cadillac Club, Club Music Co., and Ace Amusement Co., the organizations named in Counts One and Two of the indictment, were not enterprises contemplated by
B. Applicability of Ga.Code Ann. §§ 26--2704 and 26--2707
Defendants recast their vagueness argument, discussed in part II. B. supra, by asserting that as a matter of statutory construction, the Georgia Code provisions supporting Counts Three through Five of the indictment are not embraced by
C. The Jury Charge and the Definition of “Enterprise”
The court charged the jury that the gambling enterprise described in Count One of the indictment could consist of fewer individuals than those who, under the indictment, were said to have constituted the enterprise (W. Hawes, Hawkins and Dean). Count Two charged various defendants with conspiracy to participate in the affairs of this enterprise in violation of
An indictment is required to set forth the elements of the offense charged, so that defendants are sufficiently apprised of the charge which they must prepare to meet. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972). Count One of the indictment set forth the allegation that W. Hawes, Hawkins and Dean “constituted an enterprise as defined by Title 18, United States Code, Section 1961(4).” Under that definitional statute an enterprise may consist of “any individual” as well as “any . . . group of individuals.” The above described jury charge merely instructs the jury on federal law. It does not alter the elements established by the indictment. We hold, therefore, that the trial judge was informing the jury of the applicable law, as delineated in the indictment, and the judge in no way materially varied the facts set out in the indictment.
IV. VALIDITY OF THE SEARCH WARRANT: PROBABLE CAUSE
Defendants broadly challenge the legality of the search warrant which was the basis of the search that yielded most of the Government‘s evidence. FBI Special Agent Ted R. Ping obtained the warrant on the basis of a 20 page affidavit, in which he thoroughly outlined the gambling operation, including a description of customers, corporate interrelationships, business practices and employees. The affidavit identifies six confidential sources and the basis for their knowledge, as well as two other sources: a former policeman and an Assistant United States Attorney.
Before a valid warrant may issue, an affidavit must be submitted to the court setting forth the necessary facts and circumstances whereby the judge may determine probable cause. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). The affidavit supporting the search warrant here amply demonstrated probable cause to believe that the defendants’ gambling enterprise violated
In the context of purporting to show that the search warrant was obtained without probable cause, defendants argue that the American Legion and the Moose Club, with which Peach State did business, are tax exempt organizations under
V. THE JURY CHARGE
A. The Jury Charge and Ga.Code Ann. § 26--2707
The first contention made against the jury charge--that the jury was improperly instructed as to
B. The Jury Charge and Scienter
The appellants contend that Counts Three through Six are deficient for failing to instruct the jury that as an element of a
VI. ARGUMENTS PERTAINING TO DEFENDANT JOSEPH HAWES
A. Sufficiency of Evidence Supporting the Conspiracy Count
William (Dyke) Hawes emerges as the principal owner and the mastermind of the entire gambling network. He served as president of Peach State Distributing Co., the central business organization which owned, serviced, leased and sold the gambling devices in addition to operating routes under the business name of Ace Amusement Co. This defendant held an ownership interest in and a corporate office with the Golden Cadillac Club; he also owned in part both Bann Equipment Co., d/b/a Star Music Co. and the Club Music Co. Dyke Hawes was indicted and convicted under all six counts and was sentenced to five concurrent sentences of five years each.
Joseph Hawes was indicted and convicted for conspiracy to violate
It was the Government‘s theory that Dyke Hawes was grooming his son Joseph to take over the gambling business. To show that Joseph Hawes was more than a routine employee, the prosecution introduced evidence showing that he trained other route men, supervised Peach State employees, and helped keep bookkeeping worksheets for Ace and Peach State which contained entries pertaining to transactions with Star Music Co. and other customers. They also point to the circumstantial inferences which follow Joseph‘s filial relationship with Dyke. On appeal, the parties essentially disagree over whether the evidence shows that Joseph had the knowledge of the conspiracy which is necessary for a conspiracy conviction.
Although the evidence of Joseph Hawes’ participation in the conspiracy is not as extensive as is the evidence with respect to other of the criminal defendants, he comes to this Court bearing a weighty burden. On appeal from a conviction we must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Crockett, 514 F.2d 64, 75 (5th Cir. 1975). Participation in a criminal conspiracy may be shown by circumstantial evidence. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Park v. Huff, 506 F.2d 849, 859 (5th Cir. en banc), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975). A party‘s stake in a conspiracy is relevant to the question of his or her participation. Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). Conspiracy is almost always a matter of inference deducted from the acts of the accused. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947).
In view of the foregoing standard of appellate review of evidence in a trial court conviction, and in light of the copious evidence showing the existence of a common criminal scheme, we hold that the evidence is sufficient to establish Joseph Hawes’ participation in and knowledge of the criminal conspiracy, and therefore the conviction under Count Two must stand.
B. Sufficiency of the Evidence: § 1955 Violation
Joseph Hawes further argues, in essence, that the evidence did not prove him to be significantly enough involved in the illegal gambling business to support conviction under
Congress’ intent was to include all those who participated in the operation of a gambling business, regardless how minor their roles . . ..
United States v. Marrifield, supra, 496 F.2d at 1281, quoting United States v. Becker, supra, 462 F.2d at 232. Viewing the evidence in the light most favorable to the Government, we find there to be sufficient evidence and therefore sustain the jury‘s conviction.
Defendant Joseph Hawes charges error in the trial court‘s failure to restate the knowledge requirement for conspiracy when the court gave the jury supplemental instructions at the jury‘s request. The supplemental charge responded to a note presented by the jury to the court which read:
Do we understand correctly that a person must be guilty of two of the charges in Counts 3, 4, 5 and 6, before being convicted on Counts 1 and 2?
The court gave an additional charge in answer. Attorneys for Joseph Hawes then requested an additional supplemental instruction to the effect that it would be necessary that the defendant Joseph Hawes know that the plan of the conspiracy was as alleged in the indictment. Defendant Hawes now cites error in the court‘s failure to give the requested charge, relying primarily on the principles as set out in the case of Bland v. United States, 299 F.2d 105 (5th Cir. 1962). The Bland case held that when the jury requests further instructions on points which are favorable to the Government, the trial court should repeat instructions favorable to the defense where the requested instructions taken alone might leave an erroneous impression in the minds of the jury. This principle was reaffirmed in the case of United States v. Carter, 491 F.2d 625 (5th Cir. 1974).
The court in its initial charge gave a full and complete explanation on the law of conspiracy. At the beginning of the supplemental charge to the jury, the court very clearly explained to the jury that they must consider all the court‘s instructions, not just the additional elements given in the supplemental charge. The court again explained the necessary elements that must be found before anyone could be found guilty of conspiracy.
Viewing the main charge and the supplemental charge as a whole, United States v. Carter, id., United States v. Jackson, 470 F.2d 684, 688 (5th Cir.), cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1973), we cannot say that the supplemental instruction taken alone would leave an erroneous impression in the minds of the jury.
CONCLUSION
Upon a full examination of the record and consideration of the arguments of counsel, we are satisfied that all convictions in this case are constitutionally, statutorily and procedurally sound. The jury verdict is in all respects
Affirmed.