James v. United States

• Decision Date: 31 October 1969
• Docket Number: No. 26162.,26162.
• Citation: 416 F.2d 467
• Parties: Donald Lester JAMES, Ivan Orrels, Dewey D'Angelo, Alice Dianne Whitmire, Raymond Leroy Rolling, Jack Edward Kress, and Harvey Hutton Hutchins, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 467 (1969)

Donald Lester JAMES, Ivan Orrels, Dewey D'Angelo, Alice Dianne Whitmire, Raymond Leroy Rolling, Jack Edward Kress, and Harvey Hutton Hutchins, Appellants, v. UNITED STATES of America, Appellee.

No. 26162.

United States Court of Appeals Fifth Circuit.

September 17, 1969.

Rehearing Denied October 31, 1969.

COPYRIGHT MATERIAL OMITTED

Jack Wasserman, Washington, D. C., Michel Maroun, Shreveport, La., for appellants James, Orrells, D'Angelo, Kress, and Whitmire.

John M. Sekul, Biloxi, Miss., for appellant Rolling.

Harvey H. Hutchins, pro se.

Robt. E. Hauberg, U. S. Atty., Jackson, Miss., Owen A. Neff, Criminal Div., Charles Ruff, Joseph Tafe, Attys., Dept. of Justice, Washington, D. C., for appellee; Jill Wine Volner, Atty., Dept. of Justice, Washington, D. C., of counsel.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and HUNTER, District Judge.

EDWIN F. HUNTER, Jr., District Judge:

Appellants were tried by a jury under a four-count indictment charging them with conspiracy to violate and substantive violations of 18 U.S.C.A. §§ 2, 371 and 1952.

Count One charged that defendants conspired in violation of 18 U.S.C.A. § 371 to use certain facilities in interstate commerce with intent to carry on an unlawful gambling enteprise in violation of Sections 1952 and 2 of 18 U.S. C.A. The alleged conspiracy included the use of trailer facilities of U-Haul Trailer Company between Oklahoma and Mississippi for the purpose of transporting in interstate commerce a "Juice joint" to control dice games conducted in violation of Mississippi law. The alleged conspiracy also included the interstate use of the mails to cash gambling checks. All appellants except Orrels were found guilty on this count.

Count Two charged five appellants (Whitmire and Hutchins not included) with causing the use of U-Haul Trailer facilities in interstate commerce to transport electromagnets from Oklahoma to Mississippi, to be used at the Red Carpet Club and Deano's Lounge in Biloxi to control dice games conducted in violation of the gambling laws of Mississippi. Appellant Rolling was found not guilty of this charge. Four appellants — Jack Kress, Dewey D'Angelo, Donald James and Ivan Orrels — were found guilty. Count Three charged Bennett, D'Angelo and Harry Hutchins used the United States mails by causing the Gulf National Bank in Gulfport, Mississippi to place in the mails for collection checks drawn by John Turner on an Iowa bank with the intent to carry on an unlawful gambling enterprise in violation of Sections 1952 and 2 of 18 U.S.C.A. Only Hutchins was found guilty. Count Four charged D'Angelo and Whitmire with using the mails by causing the same bank to place in the mails checks drawn by Harold Holt on a Tennessee bank with the intent to carry on an unlawful gambling enterprise in violation of the same statutes.

Appellants assert numerous errors. The conclusion of their brief reveals the vigor of their attack upon the convictions:

"CONCLUSION"

"This was no ordinary prosecution but rather one where the Government sought to indict and convict by means fair or foul. The proceedings before the grand jury were accompanied by misconduct on the part of the prosecution and followed by an improper press release, the indictment was prejudicially conceived and framed, the defense preparation for trial was marred by governmental interference, the evidence introduced at the trial was the product of illegal search and seizure, appellants were tried by unfair utilization of hearsay and admissions received in evidence without affording appellants the rights protected by the Sixth Amendment, the Government\'s closing arguments were permeated by unfairness and then to climax this pyramid of prejudice and unfairness, a confusing and erroneous charge was delivered to the jury. Convictions procured in this fashion should not be permitted to stand. We urge reversal."

From our review of the record before us we cannot see any indication that appellants have been the victim of miscarried justice. The facts proved against them made the verdict inevitable. We affirm.

Able counsel have thoroughly argued and briefed their contentions. These will be treated separately, but first we shall detail some of the evidence giving rise to this prosecution so that appellant's allegations of error may be placed in proper perspective. The evidence is to be viewed in the light most favorable to the jury verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

SUMMARY OF EVIDENCE

The Government's witnesses consisted of eleven F.B.I. agents, four state officials and thirty-one additional witnesses, together with some forty-three exhibits. The evidence reveals that a gambling casino, the Red Carpet Club, was opened in Harrison County, Mississippi, in November of 1964. It was located in the former home of Harry Bennett, who was indicted as a co-conspirator but died before trial. Defendant D'Angelo was the record owner of the club. Defendant Rolling owned an interest as a result of a $7,500 loan made to Bennett. Defendant James owned a ten percent interest. D'Angelo managed the "front room" of the casino. Rolling was in charge of the dice table. Business at the Red Carpet Club was poor, and in December, 1964, Bennett and James discussed the possibility of placing a device to the gambling table to control the roll of the dice. Defendant Kress came to the club and met with Bennett at that time, and when he returned in January of 1965, Maurice Arnold, the club's maintenance man, was told by Bennett and Kress that they wanted him to install a heavy-duty voltage meter in his shop at the rear of the club, using the name of his own company, Modernistic Industries. Early in March, 1965, Robert Bennett, Harry's son and also an unindicted co-conspirator, had a conversation with D'Angelo. D'Angelo told him about the proposed installation of the control device and showed him a business card with Kress's name on it. A day or two later, Harry Bennett showed a similar card to his son and told him that he was willing to pay $15,000 for such a device. James and Orrels traveled in James's car to Tulsa, Oklahoma. They rented a heavy-duty U-Haul trailer for a one-way trip to Gulfport. They then picked up from Kress's business premises a number of heavy steel plates and wire coils and transported these items from Tulsa to Gulfport. Robert Bennett informed his father that he and Hutchins were planning to go to New Orleans, and Harry Bennett asked his son to pick up a concrete saw for Maurice Arnold. The saw was obtained and Maurice Arnold attempted to use it during the morning of March 19th to cut holes in the floor of the Red Carpet Club underneath the dice table. Present at that time were the defendants James and Rolling. When it was realized that the concrete saw would not enable them to cut sufficiently large holes to hold the steel plates, Arnold and James drove to Gulfport and rented an air hammer to finish the job. The plates and coils were removed from the trailer by James, Rolling, Arnold and two assistants, and when the holes under the table had been cut, the equipment was placed in them and wires connected from an electric power source. The electromagnets thus created constituted the operative part of a device commonly known as a "juice joint," the purpose of which was to control the roll of the dice.

The Red Carpet people encountered considerable difficulty in collecting on checks cashed by its customers. Those who came to gamble would cash sizable checks for that purpose and some would stop payment on their return home or would have insufficient funds in their accounts. Hutchins suggested the creation of an independent organization to cash the checks. Hutchins and Robert Bennett set up a company with Hutchins as president and Jean Proctor, an unindicted co-conspirator, as secretary. Hutchins and Robert Bennett were to receive two and one-half percent of the value of the checks handled as their commissions. The Check Cashing Service account was opened in March, 1965, by Hutchins, and it remained active, to a greater or lesser extent, until November, 1965. The use of the mails to transmit the checks cashed by customers of the Red Carpet Club (and of Deano's Lounge) was charged as an element of the conspiracy in Count One of the indictment and as an element of the substantive offenses in Counts Three and Four. Considerable evidence was adducted concerning specific instances of the cashing of checks for customers from outside Mississippi. Typical of the testimony given by the customers was that of John Shipley, who testified that he cashed a number of checks on Louisiana and Alabama banks but that, having concluded that the dice he had been playing with were loaded, he stopped payment.

The Red Carpet Club was closed by a local injunction in June of 1965. Bennett, D'Angelo and Rolling decided to move the gambling operation to a new location. Accordingly, on August 3, 1965, D'Angelo leased an empty restaurant across the street from the Red Carpet. Harry Bennett put up the money to remodel it for use as a gambling casino. Bennett was to receive forty percent of the profits from the new operation (Deano's Lounge); D'Angelo was to receive twenty percent, and Rolling was to receive ten percent. Several months later Arnold, Rolling and others moved the "juice joint" from the Red Carpet Club to Deano's Lounge. Arnold and Rolling tested the device. It worked satisfactorily for some three or four days. The main switch caught fire. Arnold called Kress in Tulsa and told him about the fire. Two weeks later Kress brought a new switch. He visited Harry Bennett in the latter's office and tried to persuade Bennett to invest sufficient money in the "juice joint" to insure that it would work efficiently, but Bennett refused to spend any more. Friction developed between Bennett and D'Angelo. D'Angelo bought out Bennett's interest in Deano's and decided to...