U.S. v. Morrison

Decision Date15 March 1976
Docket NumberNo. 75--1161,75--1161
Citation531 F.2d 1089
Parties1 Fed. R. Evid. Serv. 1122 UNITED STATES of America, Appellee, v. David B. MORRISON, Defendant-Appellant.
CourtU.S. Court of Appeals — First Circuit

Robert W. Harrington, Boston, Mass., with whom Judith E. Diamond and Harrington & Gormley, Boston, Mass., were on brief, for appellant.

Daniel F. Featherston, Jr., and Featherston, Homans & Griffin, Boston, Mass., on brief as amicus curiae.

Sidney M. Glazer, Atty., Dept. of Justice, Washington, D.C., with whom James N. Gabriel, U.S. Atty., and Jeremiah T. O'Sullivan, Special Atty., Dept. of Justice, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

After trial to a jury, appellant was convicted of conducting an illegal gambling business in violation of 18 U.S.C. § 1955. On this appeal he presents a number of claims which may be briefly summarized as follows. Appellant contends that the indictment returned by the grand jury was invalid because the United States Attorney appearing before it was not properly authorized to conduct the inquiry as required by 28 U.S.C. § 515(a); that 18 U.S.C. § 1955 is unconstitutional; that the indictment failed to charge a violation of a relevant offense under state law as required by § 1955; that the trial court erred in permitting an expert witness to testify as to the daily total of wagers in the alleged gambling business; and that a judgment of acquittal should have been entered since there was insufficient evidence to support a conviction. We examine them in this order.

Appellant claims that the letter of authority from Assistant Attorney General Petersen 1 assigning Jeremiah T. O'Sullivan, an attorney in the Organized Crime and Racketeering ('Strike Force') Section of the Department of Justice to assist in the federal prosecutions in the district of Massachusetts failed to comply with the requirement of 28 U.S.C. § 515(a) (1970) 2 that any special attorney be 'specifically directed' to carry out particular legal proceedings. Essentially appellant contends that § 515(a) represents Congress' desire to prevent broad roving investigations by special attorneys and that therefore the language of § 515(a) requiring specific directions to any specially appointed attorney should be strictly construed. In this claim appellant relies primarily on United States v. Dulski, 395 F.Supp. 1259 (E.D.Wisc.1975) and United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y.1975). The district courts in these cases held that the letters of authority, both identical with the letter challenged here except for references to different federal districts, were too broad to meet the requirements of § 515(a) because they did not specify the particular statutes under which the proceedings were to be conducted and the reasons why a specially qualified attorney was required. Both of these cases, however, have been reversed, United States v. Crispino, 517 F.2d 1395 (2d Cir. 1975) (mem.); United States v. Dulski, supra, rev'd sub nom. Infelice v. United States, 528 F.2d 204 (7th Cir. 1975) as have all other cases holding authorization letters inadequate in light of § 515(a). United States v. Wrigley, 392 F.Supp. 14 (W.D.Mo.1975), rev'd 520 F.2d 362 (8th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304, 44 U.S.L.W. 3305 (1975); United States v. Agrusa, 392 F.Supp. 3 (W.D.Mo.1975), rev'd 520 F.2d 370 (8th Cir. 1975); United States v. Di Girlomo, 393 F.Supp. 997 (W.D.Mo.1975); rev'd 520 F.2d 372 (8th Cir. 1975). District courts in this circuit and elsewhere have likewise turned aside this claim. See, e.g., In re Patriarca, 396 F.Supp. 859, 865--68, 871 (D.R.I.1975); United States v. Kazonis, 391 F.Supp. 804 (D.Mass.1975); see also United States v. Weiner, 392 F.Supp. 81 (N.D.Ill.1975). 3

Essentially § 515(a), promulgated by Congress in 1906 (34 Stat. 816), was designed to counter the decision in United States v. Rosenthal,121 F. 862 (S.D.N.Y.1903). The basic purpose of the statute was to regulate the grant of power and authority by the Justice Department to special attorneys, primarily private outside counsel, who were to operate within the districts of regular United States Attorneys. Although the present appeal involves the appointment of a Strike Force attorney who is an employee of the Justice Department nevertheless § 515(a) is clearly applicable.

The most questionable aspect of the letter is its failure to say more about Mr. O'Sullivan's cases than that they involve 'violations of federal criminal statutes by persons whose identities are unknown . . ..' To hold this language in compliance with § 515(a) might seem to go beyond the literal statutory language and legislative history, a step 'courts must (take) cautiously for fear of overreaching their traditional role, particularly where statutes may be dangerously expanded to encroach on individual liberties.' In re Persico, 522 F.2d 41, 65 (2d Cir. 1975). Even so, courts have held similarly worded letters of appointment, standing alone, to be sufficiently specific to comply with § 515(a), United States v. Wrigley, supra, 520 F.2d at 367; Infelice v. United States, supra at 206. We need not go so far here. We deal not with the appointment of private outside counsel, but with that of an attorney regularly employed on a full-time basis by the Department of Justice as part of its Strike Force program. In this circumstance, 'specific direction' to such an attorney 'need not be embodied in a single written authorization, but may be implied from other writings, guidelines, practices and oral directions transmitted through a chain of command within the Department.' In re Persico, supra at 66.

The Strike Force program involves the coordination and cooperation of numerous law enforcement officials within particular judicial districts and within the Department of Justice itself. The details of this organizational structure and of its operation have been amply explicated elsewhere, see In re Persico, supra, and need not be outlined here. Congress itself has not been unaware of the role played by special Strike Force attorneys within the Department and Congress has given 'repeated . . . approval of Strike Force appropriations.' Id. at 65. While these appropriations do not imply that Congress specifically approved broad grants of authority to particular special attorneys of the Strike Force, it is clear from all the circumstances that Congress authorized the Justice Department to undertake a broadgauge and effective attack on organized crime. The commission letter challenged here is an integral part of such a program and must be interpreted against this background. When the letter of appointment is examined in this context it is evident that the specific direction called for by § 515(a) has been provided. 4 Accordingly, special attorney O'Sullivan was properly authorized to conduct the grand jury inquiry and subsequent proceedings involving the appellant.

Appellant also contends that 18 U.S.C. § 1955 is unconstitutional. There are two branches to his argument. First, he claims § 1955 violates due process because it makes the federal violation dependent on varying state laws and therefore results in non-uniformity among the states as to what is or is not illegal gambling activity. However, this claim must fail. Congress is empowered to enact statutes which incorporate state laws by reference, and it is not required to achieve national uniformity in every exercise of the commerce power. United States v. Sacco, 491 F.2d 995, 1003 (9th Cir. 1974). See United States v. Smaldone, 485 F.2d 1333, 1343 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974); United States v. Palmer, 465 F.2d 697, 699 (6th Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126, rehearing denied, 409 U.S. 1051, 93 S.Ct. 513, 34 L.Ed.2d 505 (1972). Cf. Schneider v. United States, 459 F.2d 540, 542--43 (8th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972). Appellant also claims that § 1955 is an unconstitutional exercise of the commerce power because there was no rational basis for Congress to find that the regulated activity affects interstate commerce, or alternatively that the class of activities proscribed by the statute is not rationally connected to the stated purpose of suppressing organized crime. However, this claim likewise cannot avail. An examination of § 1955 and the legislative history of Title VIII of the Organized Crime Act of 1970 of which it is an integral part clearly indicates that there was an adequate basis for Congress to conclude that illegal gambling has a detrimental impact on interstate commerce, and that in enacting § 1955 it would be within the bounds of the commerce power. United States v. Hunter, 478 F.2d 1019, 1021 (7th Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107 (1973); United States v. Riehl, 460 F.2d 454, 458 (3d Cir. 1972); United States v. Becker, 461 F.2d 230, 233 (2d Cir. 1972), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974); United States v. Harris, 460 F.2d 1041, 1043--49 (5th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972); see Perez v. United States,402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Schneider v. United States, supra at 541; United States v. Smaldone, supra at 1342--43.

Appellant further contends that his indictment failed to charge him properly with a violation of state law as required by 18 U.S.C. § 1955(b)(1)(i). Specifically he claims that the statute under which he was charged, viz. Mass.Gen.L. c. 271, § 17, 5 focuses upon gambling on the outcome or conduct of a contest involving skill or other special abilities, whereas he in fact was alleged to have participated in a 'partimutuel numbers operation' which involves gambling on a game of...

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