500 F.2d 856 (9th Cir. 1974), 72-2983, United States v. Polizzi

Docket Nº:72-2983 to 72-2989.
Citation:500 F.2d 856
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Santo POLIZZI, Defendant-Appellant. UNITED STATES of America, plaintiff-Appellee, v. Jack S. SHAPIRO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter James BELLANCA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony GIARDANO, Defendant-A
Case Date:April 30, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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500 F.2d 856 (9th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Santo POLIZZI, Defendant-Appellant.

UNITED STATES of America, plaintiff-Appellee,

v.

Jack S. SHAPIRO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter James BELLANCA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony GIARDANO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Arthur J. ROOKS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony Joseph ZERILLI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

EMPRISE CORPORATION, a New York corporation, Defendant-Appellant.

Nos. 72-2983 to 72-2989.

United States Court of Appeals, Ninth Circuit.

April 30, 1974

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Richard A. Murphy (argued), Robert E. Hinerfeld, Simon, Sheridan, Murphy, Thornton & Hinerfeld, Los Angeles, Cal., for defendant-appellant in 72-2983.

Thomas Kotoske, Asst. U.S. Atty. (argued), William D. Keller, U.S. Atty., Richard Rosenfield, Earl Boyd, Asst. U.S.

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Attys., Los Angeles, Cal., for plaintiff-appellee.

Edward M. Medvene (argued), Robert E. Hinerfeld, Simon, Sheridan, Murphy, Thornton & Hinerfeld, Los Angeles, Cal., for defendant-appellant in 72-2984.

Stanley E. Beattie (argued), James V. Bellanca, Jr., Bellanca & Beattie, Detroit, Mich., for defendant-appellant in 72-2985.

Irl B. Baris (argued), Newmark & Baris, St. Louis, Mo., for defendant-appellant in 72-2986.

Joseph A. Ball (argued), Joseph D. Mullender, Jr., Laurence F. Jay, Ball, Hunt, Hart, Brown & Baerwitz, Anthony Murray, Hitt, Murray & Caffray, Long Beach, Cal., for defendant-appellant in 72-2987.

William J. Weinstein (argued), Weinstein, Kroll & Gordon, Detroit, Mich., for defendant-appellant in 72-2988.

John P. Frank (argued), Lewis & Roca, Phoenix, Ariz., Joseph D. Mullender, Jr., Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, Cal., for defendant-appellant in 72-2989.

OPINION

Before BROWNING and DUNIWAY, Circuit Judges, and RENFREW, [*] district judge.

RENFREW, District Judge:

In 1966 and 1967, appellants Zerilli and Polizzi acquired hidden interests in Vegas Frontier, Inc. (VFI), a Nevada corporation, which leased and operated the Frontier Hotel in Las Vegas, Nevada. VFI was also licensed to conduct gambling at the hotel, which opened in July of 1967. Neither Zerilli nor Polizzi was licensed by the Nevada gaming authorities, nor was either man's interest in VFI disclosed to those authorities. After extensive negotiations, VFI was sold in November, 1967, to Howard Hughes.

Following a very lengthy and complex trial, 1 Zerilli, Polizzi, and the other appellants were convicted of conspiracy (18 U.S.C. § 371) to violate 18 U.S.C. § 1952 2 (Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises) and of substantive violations of that section. Appellants challenge their convictions on a number of bases. They contend:

1. That the prosecution failed to show a violation of 1952.

2. That, if a violation were shown, the laws in question would be unconstitutionally vague.

3. That the court erred in instructing the jury.

4. That the publicity surrounding their trial deprived them of a fair trial and that there was jury misconduct which the court refused to investigate.

5. That the label 'Mafia' was applied to them in a public list of Mafia figures made by the Department of Justice and that the list was submitted in the grand jury proceedings and

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in the trial in this case and that these actions constitute a deprivation of their rights of due process.

6. That the trial court committed error in the permission it gave to the prosecution to cross-examine certain of the appellants about their reputations as members of the Mafia when the appellants had not presented evidence of character or reputation.

7. That they were deprived of a fair trial by misconduct of the prosecutor which the trial court sanctioned.

8. That the testimony of a key prosecution witness should have been stricken in that the prosecution's untimely production of his pretrial statements violated the Jencks Act.

9. That error was committed in the admission of the testimony of that witness on the grounds that part of the testimony was conclusively demonstrated to be false, and admitted to be false by the witness.

10. That promises of leniency made to the witness by the prosecution were not disclosed.

11. That the acts complained of were a unitary crime and that it was not proper for them to be convicted of a conspiracy and substantive violations based upon the same conduct.

12. That the venue of the trial court was improper.

13. That the court below erred in refusing to grant appellant Giordano's [2a] motion for severance.

14. That the court below erred in failing to instruct the jury that evidence admitted after appellant Giordano had rested at the close of the prosecution's case could not be considered against him.

15. That appellant Giordano's motion for acquittal at the close of the prosecution's case should have been granted.

16. That appellant Emprise is not liable for any criminal acts that its predecessor in interest allegedly committed.

17. That the evidence was insufficient to support their convictions.

18. That the trial was materially tainted by leads from unlawful electronic surveillance.

Having carefully considered each of these contentions, we affirm the convictions below. Although this opinion is longer than we would have preferred, appellants have raised and argued so many points in 534 pages of briefs, exclusive of appendices and exhibits, that we find a lengthy opinion unavoidable.

I. Violation of § 1952

Appellants' threshold contention is that their conduct did not come within the coverage of the federal Travel Act (18 U.S.C. § 1952), raising two issues as to the meaning of the statute. Section 1952 condemns interstate travel or the use of interstate facilities in the furtherance of 'any unlawful activity,' defined as including 'any business enterprise involving gambling * * * offenses in violation of the laws of the State in which they are committed or of the United States * * *.' A violation of § 1952 thus must be premised upon another distinct violation of state or federal law.

Although state law becomes the focus of this inquiry, 'the gravamen of a charge under § 1952 is the violation of federal law * * *.' United States v. Karigiannis, 430 F.2d 148, 150 (7 Cir. 1970) (Clark, J.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). 'Reference to state law is necessary only to identify the type of unlawful activity in which the defendants intended to engage.' United States of America v. Rizzo, 418 F.2d 71, 74 (7 Cir. 1969), cert. denied, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 (1970).

While the Government's theory was not succinctly stated, either in its brief or at oral argument, it does emerge

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from a careful reading of the indictment and information 3 together with the court's instructions to the jury 4 that appellants violated the federal Travel Act by conduct which was a 'business enterprise' that involved 'gambling * * * offenses' in violation of Nevada Revised Statutes (N.R.S. § 463.160 5 in that Zerilli and Polizzi's interests in the gambling conducted by VFI at the Frontier Hotel were hidden from the nevada gaming authorities.

Appellants' first argument is that since VFI had a gambling license as required by Nevada law, their activity could not be unlawful within the meaning of the federal Travel Act. They rely considerably on one instruction, to which the government did not object, that VFI was licensed and that the gambling it conducted could not be found illegal. 6 Appellants, counsel stated at oral argument that, even if appellants procured the VFI license fraudulently, there would be no criminal violation of Nevada law. We disagree.

This instruction meant only that the trial court did not believe that the prosecution could rely upon N.R.S. § 463.160(1)(a). The license would not be

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viewed as void ab initio, and the appellants could not be prosecuted for conducting a gambling enterprise without a license. Nor could the prosecutor 'pierce the corporate veil' to reach appellants. 7 The instruction does not, however, legitimize all the acts of appellants in obtaining the license. N.R.S. § 463.160(1)(c) covers precisely the charges here against appellants: receiving compensation from gambling conducted without having procured and maintained licenses as required by law. 8

Appellants argue, however, that N.R.S. § 463.160(1)(c) only requires that the gambling be licensed and does not reach fraud or other violations in obtaining the license. Acceptance of this construction of Nevada law would effectively emasculate the statutory scheme of requiring the disclosure of the identities of the persons who would be involved in the gambling enterprise. This disclosure requirement has as its purpose the prevention of the infiltration of criminal elements into gambling in Nevada. 9 Section 463.160(1)(c) requires not only...

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