529 F.2d 1178 (5th Cir. 1976), 75--2622, United States v. Adderly

Docket Nº:75--2622.
Citation:529 F.2d 1178
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thalia ADDERLY and Simeon Adderly, Sr., Defendants-Appellants.
Case Date:April 09, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1178

529 F.2d 1178 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thalia ADDERLY and Simeon Adderly, Sr., Defendants-Appellants.

No. 75--2622.

United States Court of Appeals, Fifth Circuit

April 9, 1976

Rehearing Denied May 10, 1976.

Page 1179

Robert P. Foley, Philip G. Butler, Jr., West Palm Beach, Fla., for defendants-appellants.

Robert W. Rust, U.S. Atty., Joel C. Fanning, Charles O. Farrar, Jr., Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, COLEMAN and GEE, Circuit Judges.

Page 1180

GEE, Circuit Judge:

On September 7, 1974, FBI agents procured a search warrant for the residence of Johnny Freelove, a co-defendant, where they found gambling paraphernalia and a large quantity of cash. Freelove and Thalia Adderly were apprehended on the premises. Simeon Adderly and two other co-defendants were arrested elsewhere on the basis of FBI surveillance connecting them with this alleged gambling operation. All five co-defendants were indicted on two counts--conspiracy to conduct, and conducting an illegal gambling business. 18 U.S.C. §§ 371 and 1955. One defendant was acquitted on December 2, 1974, and a mistrial was declared as to the other four defendants on December 6, 1974, when the jury was unable to reach a verdict on either count as to any defendant.

On April 21, 1975, a second trial began. One defendant was severed and subsequently pled guilty to conspiracy and was sentenced separately. A jury then found Thalia and Simeon Adderly and Johnny Freelove guilty of both counts. Thalia and Simeon Adderly received concurrent three-year sentences from which they appeal. Freelove did not appeal his conviction. Appellants' motion for new trial was denied, and this appeal is based on the theory that evidence of their earlier conviction for conspiracy to violate 18 U.S.C. § 1955 was improperly admitted during the government's case in chief. We affirm.

This court has often faced the question of when a prior conviction may be used as evidence in the prosecution for subsequent acts. In United States v. San Martin, 505 F.2d 918 (5th Cir. 1974), we established the prerequisites for admission of prior misconduct: the prior offense must be similar and must be convincingly proved, it must not be too remote in time, the exception to the general rule of exclusion for which the offense is admitted must be a material issue in the instant case, and there must be a substantial need for the evidence. The probative value of such prior misconduct must also be balanced against its prejudicial effect. United States v. Goodwin, 492 F.2d 1141 (5th Cir. 1974). Defendants here argue that in order for a prior offense to be admitted to establish intent as an exception to the general rule of exclusion, 'specific intent' must be an element of the offense charged. Neither 18 U.S.C. § 371 nor § 1955 specifically refers to intent...

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