378 F.2d 751 (9th Cir. 1967), 20807, Cohen v. United States

Docket Nº:20807.
Citation:378 F.2d 751
Party Name:Lesly COHEN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 05, 1967
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 751

378 F.2d 751 (9th Cir. 1967)

Lesly COHEN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 20807.

United States Court of Appeals, Ninth Circuit.

May 5, 1967

Rehearing Denied June 20, 1967.

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[Copyrighted Material Omitted]

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John V. Lewis, Richard H. Foster, San Francisco, Cal., for appellant.

Cecil F. Poole, U.S. Atty., San Francisco, Cal., Louis Scalzo, John C. Keeney, Attys. Crim. Div., Dept. of Justice, Washington, D.C., for appellee.

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Before HAMLIN, MERRILL and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

Appellant was convicted on two counts of an indictment charging knowing utilization of interstate telephone facilities for the transmission of wagers and wagering information in violation of 18 U.S.C. § 1084(a) (1964). 1

The first count alleged that during the period September 16, 1962, to December 15, 1962, appellant knowingly used interstate telephone facilities to transmit information from Las Vegas, Nevada, to San Francisco, California, for the purpose of assisting in placement of a wager on a San Francisco Forty Niner's football game. A bill of particulars specified that this count involved a number of telephone calls between appellant and two bettors, Raymond Syufy and Adolph Schuman.

The second count, as amplified by the bill of particulars, alleged a telephone call by Syufy to appellant on September 25, 1962, placing a wager on the Sonny Liston-Floyd Patterson heavyweight boxing match.

I

Appellant contends that the first count is duplicitous because the bill of particulars alleges that more than one telephone call and more than one bettor were involved. He argues that he was prejudiced by the form of the charge because the bettor Syufy was a unable to identify the person with whom he spoke on the telephone, and the proof as to these calls was therefore inadequate to support a verdict against appellant, yet the jury may have based its verdict upon this proof.

We think there was sufficient circumstantial evidence to permit the jury to conclude that appellant was the recipient of the Syufy calls despite Syufy's inability to identify appellant's voice. In any event, the first count charged but a single offense of knowingly transmitting wagering information by interstate telephone between the points, during the period, and for the purpose specified. It was not rendered duplicitous because the bill of particulars and subsequent proof related to a series of calls, even though each might have been alleged as a separate violation. 2 Korholz v. United States, 269 F.2d 897, 900-901 (10th Cir. 1959); Hanf v. United States,235 F.2d 710, 715 (8th Cir. 1956). The government is to be commended rather than criticized for treating all such calls for the same purpose during a brief period as one crime subject to a single statutory penalty.

II

Appellant argues that the evidence was insufficient to show his awareness that the telephone calls originated outside Nevada. Schuman and Syufy testified that appellant knew they had resided in the San Francisco area for many years. Both also testified that they had made numerous telephone calls over a period of years from the San Francisco area to appellant in Las Vegas (including the calls identified in the bill of particulars) to obtain gambling information and to place bets, and that both had arrangements with appellant to settle their accounts periodically when they went to Las Vegas. A third witness testified to a similar course of continuing gambling activity with appellant using interstate telephone facilities. He further

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testified that when he called appellant he identified himself by giving his own name and also the name of the city from which he was calling (Salt Lake City, Utah); and that he settled his account with appellant periodically by mailing remittances to appellant from his out-of-state address. The jury could have concluded from this evidence that the calls in question involved the knowing use by appellant of interstate telephone facilities in the course of a continuing interstate gambling business.

III

Appellant objected to the following passage in the instructions:

As a general rule, it is reasonable to infer that a person ordinarily intends all the natural consequences of acts knowingly done or knowingly omitted. So unless the evidence in the case leads the jury to a different or contrary conclusion, the jury may draw the inference and find that the accused intended all of the natural and probable consequences which one standing under like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused.

Although repeatedly criticized, 3 an instruction of this general tenor continues to appear in charges to the jury. Its use is an invitation to reversal. 'Despite its ancient vintage, see Agnew v. United States, 165 U.S. 36, 53, 17 S.Ct. 235, 41 L.Ed. 624 (1897), utterance of the quoted platitude serves no useful purpose, since insofar as the statement has logical validity the jury would know it anyhow' and, more important, it may, in some contexts, mislead the jury. United States v. Barash, 365 F.2d 395, 402 (2d Cir. 1966). The jury may mistakenly believe that it is permissible to infer specific knowledge or intent solely from the doing of a particular act, without regard to the totality of circumstances; or that the occurrence of the particular act shifts the burden of proof of knowledge or intent from the prosecution to the defense; or that the question is whether a reasonable man in similar circumstances would have had the requisite knowledge or intent, rather than whether the accused actually had it. United States v. Barash, supra; Mann v. United States, 319 F.2d 404, 409 (5th Cir. 1963). Cf. Chappell v. United States, 270 F.2d 274, 279-280 (9th Cir. 1959); Bloch v. United States, 221 F.2d 786, 788 (9th Cir. 1955); Wardlaw v. United States, 203 F.2d 884, 887 (5th Cir. 1953).

Nonetheless, where the reviewing court is able to conclude from an examination of the instructions as a whole that a passage of this kind 'could not have been prejudiced or have misled the jury,' the conviction will not be reversed. Sherwin v. United States, 320 F.2d 137, 151 (9th Cir. 1963). See also United States v. Releford, 352 F.2d 36, 40 (6th Cir. 1965); United States v. Denton, 336 F.2d 785, 788 (6th Cir. 1964); Armstrong v. United States, 327 F.2d 189, 195 (9th Cir. 1964); Turf Center Inc. v. United States, 325 F.2d 793, 797 n. 5 (9th Cir. 1963); Baker v. United States, 310 F.2d 924, 931 (9th Cir. 1962); Legatos v. United States, 222 F.2d 678, 687 (9th Cir. 1955); Bateman v. United States, 212 F.2d 61, 69-70 (9th Cir. 1954). Other such cases are collected in Barash, supra, 365 F.2d at 402.

We think this is true of the present case. Each of the possible areas of confusion to which we have referred was the subject of direct and specific instructions which appellant has not challenged. Viewing the instructions as a whole, we think the jury was not misled.

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Appellant did not object to the instruction in question as misleading; he simply asserted, 'I believe in a case of this character it is improper.' Had appellant raised a question on this score there can be little doubt that the district court would have supplemented the instructions to remove any remote possibility of confusion.

The gravest criticism that can be leveled at the passage in question in the circumstances of this case is that its language is general and abstract and its meaning unclear. This, alone, is not ground for reversal where the instructions taken together fairly submit the case to the jury. 4

IV

The court instructed the jury that there was a rebuttable presumption that appellant knew what the law forbade. 5 Appellant objected because 'it was a new law and enacted so closely to the time of the alleged offense.'

The threshold question is whether knowledge of the statutory prohibition is an element of the offense under 18 U.S.C. § 1084. If it is not, the instruction would be harmless even if wrong. Whether knowledge of illegality is an ingredient of a statutory offense depends upon the legislative intent. United States v. Balint, 258 U.S. 250, 251-252, 42 S.Ct. 301 (1922). 6

Congress knew that betting on sporting events was lawful in Nevada, and anticipated that it would continue to be. Congress also contemplated that interstate telephone facilities would continue to be used for the transmission into Nevada of information useful in gambling. 7 In Nevada, apparently, the conduct prohibited by section 1084(a) would be a neutral act, free of culpability unless the actor were aware of the statutory prohibition. Yet a violation of section 1084(a) is punishable as a felony, subject to two years' imprisonment and a fine of ten thousand dollars.

If knowledge of illegality is an element of the section 1084(a) offense, those innocent of intentional wrongdoing are afforded a defense. And if at the same time a rebuttable presumption of such knowledge is recognized, the requirement of knowledge will not substantially impede...

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