355 F.2d 999 (9th Cir. 1966), 19383, Marshall v. United States

Docket Nº:19383.
Citation:355 F.2d 999
Party Name:John MARSHALL and Charles Del Monico, Appellants, v. UNITED STATES of America, Appellee.
Case Date:January 27, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 999

355 F.2d 999 (9th Cir. 1966)

John MARSHALL and Charles Del Monico, Appellants,

v.

UNITED STATES of America, Appellee.

No. 19383.

United States Court of Appeals, Ninth Circuit.

January 27, 1966

         Rehearing Denied March 10, 1966.

Page 1000

[Copyrighted Material Omitted]

Page 1001

         William B. Beirne, A. L. Wirin, Fred Okrand, Los Angeles, Cal., for appellant John Marshall.

         Harold J. Ackerman, Drake & Ackerman, Los Angeles, Cal., Raymond W. Bergan, Williams, Wadden & Stein, Washington, D.C., for appellant Charles Del Monico.

         Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Div., Burt S. Pines, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

         Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

         BARNES, Circuit Judge:

         Three of four alleged conspirators were indicted by a grand jury in Count I of a three count indictment, alleging a conspiracy to travel in interstate commerce with intent to aid racketeering enterprises (18 U.S.C. § 1952).

         The three indicted were John Marshall (also known as Marshall Caifano), Charles Del Monico (also known as Charles Tourine, Jr.) and Allen Smiley (also known as Aaron Smehoff). The fourth unindicted coconspirator was Nicholas Dandolas (also known as Nick the Greek).

         The 'racketeering enterprises' were alleged to have been: to travel in interstate commerce with intent to (a)(1) distribute the proceeds of unlawful activity, namely: extortion; (2) commit a crime of violence to further unlawful activity, namely: extortion and (3) promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of unlawful activity, namely: extortion; and to thereafter perform and attempt to perform acts specified in (1), (2) and (3) above, in violation of Title 18, United States Code, Section 1952.

         The objects of said conspiracy were alleged to have been accomplished by the conspirators and the unindicted coconspirators traveling in interstate commerce to locate, and in violation of Nevada and California law to extort, money from one Ray Ryan. There then followed in Count I a recital of some fifteen alleged overt acts.

         In Count II the two appellants were charged with traveling from Las Vegas, Nevada, to Palm Springs, California, on April 26, 1963, for the purpose of committing the crime of Extortion. (18 U.S.C. § 1952.) Allen Smiley was named as an aider and abettor (18 U.S.C. § 2). The trial judge granted an acquittal on this count as to all defendants. As to Smiley, the motion was granted before the case went to the jury; as to appellants, after their conviction by the jury.

         In Count III, the three defendants were charged with traveling from Palm Springs, California, to Las Vegas, Nevada, on May 1, 1963, for the purpose of committing the crime of extortion. Smiley was granted an acquittal before the case went to the jury-- the motion of

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the other defendants for acquittal was denied both after the evidence was in and after the guilty verdict.

         Marshall was sentenced to five years, consecutively, on both Counts I and III, Del Monico the five years concurrently on each of Counts I and III.

         Appellant Marshall urges error on eleven grounds; appellant Del Monico on six-- but Del Monico also urges error as to him on all grounds raised by appellant Marshall, and not specifically raised by Del Monico. We consider each in turn.

         I-- The Statute

         Section 1952 of Title 18, United States Code, reads in material part as follows:

         ' * * * * (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to-- (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. (b) As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion or bribery in violation of the laws of the State in which committed or of the United States. * * *.'

         Section 1952(a)(1), though charged in Count I, has no bearing on this case: there were no proceeds of unlawful activity to 'distribute.' Appellants were charged in both substantive Count III and conspiracy Count I with interstate travel or interstate use of a facility with the intent to perform the acts prohibited by both subsections (2) and (3) of 1952(a), and thereafter performing such acts, or attempting to perform them.

         The acts prohibited by the statute were the commission of any crime of violence with the intent to further any 'unlawful activity'; or to promote or facilitate any 'unlawful activity.'

         'Unlawful activity,' asused in § 1952(a)(1), (2) and (3) is defined in § 1952(b) (insofar as herein material) as:

         '(2) extortion * * * in violation of the laws of the State in which committed or of the United States.'

         It is obvious that the phrase 'business enterprise,' used in subsection (1) of § 1952(b), is not used in § 1952(b)(2). We conclude, therefore, 'business enterprise' applies only to the offenses listed in subdivision (1)--namely: gambling, liquor, narcotics and prostitution offenses, and not to the extortion mentioned in subdivision (2).

         This seems to be the plain meaning of the language used in the statute, and thus needs no legislative history to interpret it. But additionally, a fair reading of the legislative history indicates that its proponents believed the main target (but not the sole target) of the legislation, was interstate travel to promote gambling. (Hearings of Subcommittee No. 5 of Comm. on the Judiciary, H.R., 87th Cong., 1st Sess. on H.R. 468; and Hearings Comm. on the Judiciary, U.S. Senate, 87th Cong., 1st Sess. on S.Bill 1653. See also letter from Attorney General Kennedy, S.Rep.No. 644, 87th Cong., 1st Sess., p. 3 (1961) (U.S.Code Congressional and Administrative News, p. 2664).) Lesser targets were the 'businesses' of traffic in liquor, narcotics and prostitution. Subdivision (2) of the § 1952(b) had a more specific target (even though perhaps a less important

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target): extortion, as defined by state laws. It was a single act of extortion (not necessarily a continued course of extortion) which had been accomplished or facilitated by interstate travel that the second subsection of § 1952(b) sought to prevent and punish.

         United States v. Teemer, 214 F.Supp. 952, 958 (N.D.W.Va.1963) is the only case cited by appellant Marshall in support of his position that a single act of extortion is not prohibited-- there must be a continuous course of business. The language quoted in appellants' brief is accurate, though not complete. But that case concerns itself only with § 1952(b)(1). On page 954, where Judge Paul quotes the 'pertinent part' of section 1952 (see n. 1 of that opinion), only subdivision (1) of (b) of § 1952 is quoted--subdivision (2) is omitted as not pertinent. The language quoted is thus applicable only to the § 1952(b)(1) crime therein charged, which is not the crime here charged.

         We hold § 1952(b)(2) does apply to the facts charged herein-- travel with intent to carry on or facilitate an unlawful activity-- to-wit: a single act of exertion.

         II-- Failure to dismiss the indictment

         Appellants claim their right to due process was denied, in that the statute is vague, and they were not given notice of the crime charged. They relied particularly on Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and cases there discussed, as well as Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963).

         We ruled on this in Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963).

         As United States v. Teemer, supra, points out (214 F.Supp. pp. 956-957), Russell v. United States, supra, is a case where appellants were charged with failing to answer questions put to them by a congressional committee. The statute requires such a question must be one 'pertinent to the question under inquiry.' The indictment stated only that the question asked and unanswered was 'pertinent to the question under inquiry,' and did not state what the 'question under inquiry' was. The Supreme Court held the indictments were bad for lack of particularity. The government itself, in Russell v. United States, supra, was not consistent in stating what the question under congressional inquiry was. Thus, the Supreme Court felt it was impossible to ascertain if the question at which the witness balked was within or without the scope of congressional inquiry. We agree. But as we said in Turf Center, Inc., supra, in holding the same statute met the constitutional requirements: 'Russell v. United States * * * represents an exception to the rule and is not in point here.' Idem. p. 796. Here appellants were accused of interstate travel to facilitate the location of Ray Ryan and the extortion of money from him. Further, here, as in United States v. Teemer, supra, there was more than a 'barebones'...

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