United States v. Thaggard

• Decision Date: 08 June 1973
• Docket Number: No. 72-2512.,72-2512.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. THAGGARD, Sr., and Vanzie Beasley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.2d 626 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. THAGGARD, Sr., and Vanzie Beasley, Defendants-Appellants.

No. 72-2512.

United States Court of Appeals, Fifth Circuit.

April 16, 1973.

Rehearing and Rehearing Denied June 8, 1973.

COPYRIGHT MATERIAL OMITTED

J. Paul Lowery, Montgomery, Ala., for Thaggard.

Calvin M. Whitesell, Montgomery, Ala., for Beasley.

Ira DeMent, U. S. Atty., D. Broward Segrest, David B. Byrne, Jr., Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.

Before COLEMAN, MORGAN and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 8, 1973.

COLEMAN, Circuit Judge:

A jury convicted Thomas L. Thaggard, Sr. and Vanzie Beasley of conspiracy wilfully and knowingly to directly and indirectly conduct, finance, manage, supervise, direct, and own all or part of a gambling business in violation of the laws of the State of Alabama, involving five or more persons for more than thirty days, 18 U.S.C. § 1955.

Defendants were also convicted, in the same trial, of a conspiracy to obstruct the enforcement of the criminal laws of the State of Alabama pertaining to gambling, 18 U.S.C. § 1511.

Upon these verdicts both men were sentenced to three years imprisonment for each offense to run concurrently.

Thaggard and Beasley assign fourteen reasons for the reversal of their convictions.

The judgment of the District Court is affirmed.

In June or July of 1971, Thomas L. Thaggard, Sr. asked one James R. Sadie to become a partner with him and Beasley in a gambling establishment. Thaggard stated, however, that he had heard of a recently enacted federal law against gambling and wanted to check on that law before proceeding further with the enterprise.

Prior to his appointment in that capacity the United States Attorney for that District had represented Thaggard in another prosecution, Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, cert. denied 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 1201, so Thaggard went to see his former counsel about the new "federal law". The United States Attorney told Thaggard that he could not and would not advise him as to the statute but did give him a copy of it and told him to consult some other attorney about the matter. Thaggard did so stating that there would be only three partners or owners involved in the gambling operation. This attorney told Thaggard that he obviously would be in violation of the laws of Alabama but since "less than five persons would be involved, in his opinion there would be no federal violation".

After this conference, Thaggard, Beasley, and Sadie, as the original owners, opened the gambling house in a concrete building in a remote rural area of Crenshaw County, Alabama. From July until December, 1971, the establishment operated four nights a week. Games of dice and blackjack were played; the customers were served drinks and steaks free. The actual operation of the gambling house, however, required more than three individuals. Several other persons were hired to operate the gaming tables, to prepare food, and to guard the automobiles of the patrons while they were inside the building. A busy night would see as many as fifty or sixty persons participating in the gambling.

Several local public officials were aware of the gambling but did not interfere with it.

Completely read and fairly construed, the record reveals that the defense to the indictments was that the accused knew they were violating the gambling laws of Alabama but, on the advice of counsel, had no intent to violate the federal statutes. In this context the case was tried, the defendants were convicted, and they now appeal.

Against this background we evaluate those assignments of error which, in our opinion, merit discussion.

1.

Because of pre-trial publicity, the trial court erred in not granting Thaggard's motions for continuance and a change of venue.

Thaggard insists that the publicity he received during the protracted litigation of the bank larceny offense, Thaggard v. United States, supra, which came to an end seven years previously, had rendered him "notorious in the community". This notoriety, coupled with the publicity given the gambling case, he says, immutably prejudiced his trial. Specifically, he refers to items which ran in the Montgomery Advertiser for the six months immediately preceding his trial.

The first article, on December 2, 1971 named the individuals involved in the gambling house and described in detail the operations of the establishment. The next article on May 5, 1972 featured front page pictures of Ray Horn, Drue Lackey, and Thomas Thaggard, Sr. It listed the individuals named in the indictment and quoted from portions of it. On May 10, 1972 a cartoon depicting a sign advertising the gambling establishment as "Cotton's Place" appeared. The May 12, 1972 issue again named the persons charged in the indictment and stated each count under which the defendants were charged. On June 1, 1972 the paper reported that James Sadie had pleaded guilty to the charges and again named the persons in the indictment. On June 4, 1972 the paper reported the uncovering of a large sports bookmaking operation in the Montgomery area. (There apparently was no connection between this operation and the gambling house.) Several known gamblers, including Thomas L. Thaggard, Sr., were listed as participating in this betting operation. However, no mention was made of the upcoming trial of the defendants involved in the gambling at "Cotton's Place".

Upon qualifying the jury for cause, the trial judge directed all members of the venire who had read or heard anything of the case to stand for special questions. Each was individually asked if he could render a verdict upon the law and the evidence regardless of what had been heard or read. Only one responded in the negative, and was excused. A second juror was disqualified for relationship to an alleged co-conspirator. The remaining eleven of those who had heard or read of the case responded that their verdict would not be affected by what they had heard or read.

The other nineteen members of the venire had not heard or read anything about the case. Thus, the defense began its peremptory challenges with nineteen individuals who had never heard of the case and eleven who had heard of it, although with no fixed opinion as a result of what they had heard or read. The appellants were allowed ten peremptory challenges to the trial panel and one challenge as to the alternate juror. The defense exercised only six of their ten peremptory challenges.

This hardly creates a picture of one who is empaled upon pre-trial hostility or drowned in a sea of fixed opinions.

Whether a change of venue is mandated depends on whether "there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district", Fed.R.Crim.P., Rule 21.

A motion for a change of venue is addressed to the discretion of the trial court and in the absence of an abuse of that discretion, the trial decision will not be overturned on appeal. United States v. Nix, 5 Cir., 1972, 465 F.2d 90.

2.

18 U.S.C. § 1955 is an unconstitutional regulation of intrastate activities and is in violation of the Tenth Amendment to the Constitution.

The contention of the appellants in this regard is rejected on the authority of United States v. Harris, 5 Cir., 1972, 460 F.2d 1041. We hold the statute to be constitutional on its face and there was no unconstitutionality in its application. Out-of-state cars were seen in the gambling house parking lot, poker chips from Las Vegas were used, and interstate telephone calls were made from the gambling house.

3.

18 U.S.C. §§ 1955 and 1511 are unconstitutional in that they exempt activities conducted by a charitable or religious organization.

"The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same", Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940). The legislative history of 18 U.S.C. § 1955 indicates that Congress was concerned with organized crime, hence Congress has proscribed the gambling activities on which it believes organized crime of an interstate character thrives and has excluded those situations in which organized crime rarely appears. Accordingly, there was a rational basis for excluding charitable and religious organizations from the purview of these statutes.

4.

The Government failed properly to introduce and prove a violation of Alabama law.

We reject this argument because our examination of the record reveals that the specific statutes of the State of Alabama prohibiting the operation of gambling houses were entered as an exhibit in the case. Moreover, the jury was instructed that a violation of Alabama law must first be found before a conviction could be had. There was really no effort to deny or controvert a violation of the Alabama gambling laws. The argument was that there had been no intent to violate the federal statute. From our reading of the record it would have been impossible for the jury to have been in any way misled on this point.

5.

The trial court erroneously instructed the jury on the law as to advice of counsel and specific intent.

Appellants contend that the Government was required to prove specific intent to violate federal law, not just specific intent to commit the overt acts. They therefore object to the trial court's definition of specific intent as stated in the instructions. Their defense is that they sought advice of counsel before entering into the gambling operation.

The trial court gave the following instruction on specific intent:

"Well, you have heard a lot about intent, and you heard me talk to you a few minutes ago that it was a case of specific intent. The offenses charged in this indictment are

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