372 F.2d 453 (4th Cir. 1967), 10601, United States v. Chase

Docket Nº:10601, 10609, 10728.
Citation:372 F.2d 453
Party Name:UNITED STATES of America, Appellee, v. Joseph A. CHASE, Appellant. UNITED STATES of America, Appellee, v. Robert H. PARRISH, Appellant. UNITED STATES of America, Appellee, v. Wyatt J. ROY, Jr., Appellant.
Case Date:January 26, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 453

372 F.2d 453 (4th Cir. 1967)

UNITED STATES of America, Appellee,

v.

Joseph A. CHASE, Appellant.

UNITED STATES of America, Appellee,

v.

Robert H. PARRISH, Appellant.

UNITED STATES of America, Appellee,

v.

Wyatt J. ROY, Jr., Appellant.

Nos. 10601, 10609, 10728.

United States Court of Appeals, Fourth Circuit.

January 26, 1967

Argued Oct. 31, 1966.

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Louis Koutoulakos, Arlington, Va., for appellant Chase.

John J. Dwyer, Washington, D.C., for appellant Parrish.

T. Emmett McKenzie, Washington, D.C. (Court-appointed counsel), for appellant Roy.

Roger T. Williams, Asst. U.S. Atty. (C. V. Spratley, Jr., U.S. Atty., on brief), for appellee.

Before BRYAN, BELL and WINTER, Circuit Judges.

WINTER, Circuit Judge.

Indicted in a sixteen-count indictment charging conspiracy to violate the statutory prohibitions against interstate transmission of wagering information (18 U.S.C.A. § 1084), traveling in interstate commerce in aid of gambling (18 U.S.C.A. § 1952), and interstate transportation of gambling paraphernalia (18 U.S.C.A. § 1953), and numerous substantive violations, appellants Chase and Parrish were found guilty, by a jury, of the conspiracy count and all substantive counts in which they were charged. Appellant Roy was tried by the court and found guilty of the conspiracy count and not guilty of the two substantive counts in which he was charged in joint trial with Chase, Parrish and three other co-defendants. 1 The indictment was returned October 6, 1965 by a federal grand jury at Richmond, Virginia. It superseded a fourteen-count indictment returned July 13, 1965 by a grand jury at Newport News. The second indictment extended the alleged period of the conspiracy from January 1, 1962 to and including July 10, 1965; the original indictment

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had alleged the conspiracy to exist only from March 16, 1965 to April 5, 1965. The superseding indictment also added two substantive violations to the crimes charged as to Roy, Chase and another who does not appeal. Roy and another co-defendant elected to be tried by the court, and a joint trial was begun on November 8, 1965. Two days later at the conclusion of the government's case, the district court, on motion of the defendants whose cases were being tried by a jury and on its own motion as to the non-jury defendants, declared a mistrial because a newspaper containing a prejudicial article was found in the jury room and another newspaper also published a prejudicial article and interrogation disclosed that a substantial number of jurors had read both articles. The second trial was begun on February 14, 1966, and resulted in the verdicts, and ultimately the judgments 2 from which these appeals are taken.

The three appellants make numerous assignments of error in the conduct of the trial and the validity of their convictions. Facts germane to each of the contentions will be specially stated, but, at the outset, it is necessary to state in general terms the proof adduced against them.

Early in 1962, Austin G. Carr, a civilian employee of the Navy, was stationed at the navy Annex, Arlington County, Virginia. At least from the latter part of 1961, Carr supplemented the income from his employment by writing bets on numbers at the Navy Annex. He employed as assistants as many as a dozen Navy employees and paid them in money or free bets. At this time, the operation was backed by a certain Clay, to whom Carr turned over his bets and the money collected. In 1962, a lucky bettor 'hit' a winning number, and Clay was unable to pay the $1,080.00 which the bettor won. Negotiations concerning payment of the bet ultimately culminated in Clay's appearance at Carr's house, accompanied by Appellant Chase and another. An agreement was reached that Carr would hold money which he received from bets that he wrote until he accumulated enough to pay off the winning bet and that, thereafter, he would turn his work over to Chase.

Arrangements were made whereby Chase met Carr at the Annex and, at this meeting, Carr showed Chase a water cooler under which Carr would hide numbers work. Thereafter, Chase was seen by Carr at the Annex on a number of occasions and, on some of them, Chase picked up the work from the water cooler, and sometimes Carr handed the work to Chase directly. Appellant Roy also picked up bets at the Annex from time to time, although at one point in the operation he quit the operation for the express reason that he was running too great a risk in crossing the District of Columbia-Virginia line. The discontinuance lasted only three months.

Settlement between Carr and Chase would be effected each week-end at Carr's home, in the District of Columbia. Usually Chase appeared personally, but from time to time John K. Smith, who was also indicted and found guilty of conspiracy, but who has not appealed, appeared in Chase's behalf.

On August 1, 1964, Carr was transferred to the Main Navy Building in the District of Columbia. When the impending transfer was known, Carr arranged to meet Chase at the Main Navy Building to show him where the work would be hidden. It thereupon became necessary

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for Carr to make arrangements to have the work assembled at the Annex and transported to the Main Navy Building for ultimate transmission to Chase. The services of two other individuals, William Triplett, who was indicted for conspiracy and numerous substantive counts, found guilty, and who has not appealed, and Roosevelt Harrison, were procured. Harrison was to assemble the work at the Annex and place it in a marked envelope, and Triplett was to pick up the envelope on one of his regular trips to the Annex and deliver it to Carr at the Main Navy Building. Carr, in turn, delivered the envelope to Chase or Roy.

Triplett became apprehensive that the government vehicle which he was driving was being followed, and he discontinued his messenger service for Carr in March, 1965. Carr then approached appellant Parrish, an employee at the Main Navy Building, and arranged for Parrish to go to the Annex each day and pick up the numbers work. Parrish was to be paid $1.50 per day for his services. Parrish was observed by the agents on several occasions entering the designated room at the Annex and picking up an envelope, which he returned to the Main Navy Building. This activity continued until April 5, 1965, when a raid occurred. Carr, Parrish, and approximately fifty others, but not Chase, were arrested.

Eight days after his arrest, Carr voluntarily appeared at the office of the Provost Marshal in the Main Navy Building and made a statement to an internal revenue service agent which implicated Chase as the backer of the alleged activity. Carr agreed to cooperate in the investigation and, at the request of the agent, communicated with Chase and arranged to resume turning numbers work over to him. From April 5 to July 13, Internal Revenue agents observed two meetings between Chase and Carr and, thereafter, Chase came to Carr's home to pick up the numbers work and effect weekly settlements.

As reasons to reverse the judgments entered in his convictions, Chase advances four contentions. He complains of excessive and prejudicial interference by the district judge in the trial of the case, prejudicial error in the admission of evidence relating to events which occurred after April 5, 1965, the date on which the raid occurred in which Carr and Parrish, and numerous others, were arrested and after which it is contended the conspiracy terminated, erroneous instructions to the jury with regard to the law of conspiracy and a failure to submit the defense of entrapment to them. As a catchall, Chase adopts his co-appellants' contentions and arguments to the extent that they are applicable to him.

Parrish complains of an alleged insufficiency of evidence to support his conviction on any count. Like Chase, he claims reversible error in the conduct of the trial judge and the admissibility of evidence of events after April 5, 1965. He also contends that he was prejudiced by an inaccurate summary of evidence in the district judge's charge to the jury.

Roy makes six contentions. He claims that dismissal of the original indictment terminated the entire prosecution and that he was denied due process of law when the trial court required him to defend himself on the superseding indictment. He claims double jeopardy and denial of due process of law when he was required to go to trial after the mistrial, which he did not request and to which he did not object, was granted. There was error, also, he contends, in a refusal to permit him to inspect the minutes of the proceedings of the Norfolk and Richmond grand juries, although the United States Attorney repeatedly represented that the Norfolk grand jury had kept no minutes, and the minutes of the Richmond grand jury set forth only the testimony of some of the witnesses who appeared before it. Roy complains, also, of the denial of his pretrial motion to require the government to furnish him with a list of witnesses, and the denial of a preliminary hearing before the Richmond grand jury returned its indictment. Lastly, Roy contends that there was insufficient evidence to convict him of the crime of conspiracy,

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the single crime of which he was found guilty.

Certain of the numerous contentions made are applicable only to a single appellant, but applicable to all is the contention of Chase and Parrish that the trial court improperly admitted evidence of events which occurred after April 5, 1965. 3 Because of its general application and because we think it meritorious, we will first turn our attention to it. Additional facts which relate...

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