Deacon v. United States

• Decision Date: 22 December 1941
• Docket Number: No. 3601.,3601.
• Citation: 124 F.2d 352
• Parties: DEACON v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

124 F.2d 352 (1941)

DEACON v. UNITED STATES.

No. 3601.

Circuit Court of Appeals, First Circuit.

December 22, 1941.

COPYRIGHT MATERIAL OMITTED

William H. Lewis, Jr., of Boston, Mass., for appellant.

Jackson J. Holtz, Asst. U. S. Atty., of Boston, Mass. (Edmund J. Brandon, U. S. Atty., of Boston, Mass., on the brief), for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, JJ.

WOODBURY, Circuit Judge.

This is an appeal from a judgment of the District Court sentencing the defendant to a term of imprisonment after he had been found guilty by a jury on two counts of an indictment. The first of these, — it was also the first count in the indictment, — charged the defendant under 18 U.S.C. A. § 88 with conspiring with others to commit the crime of transporting lottery tickets in interstate commerce. The second count upon which he was found guilty, the sixty-third in the indictment, charged him under 18 U.S.C.A. § 387, with the substantive offense mentioned above. Seventy-two other persons were named in the indictment but none of them stood trial, some having pleaded guilty and the indictment having been nol prossed as to others.

The defendant is a member of the medical profession. In 1934 he became a director and the managing head or superintendent of the Rogers Park Hospital in Chicago, Illinois. It appears that this institution was more or less chronically in need of funds and that dances and similar functions given for its benefit had not proved particularly successful. Early in February, 1937, the name of the hospital was changed to the Will Rogers Memorial Hospital and it was chartered by the state under that name as a corporation "not for profit".

One David M. Rice, a witness called by the government and a co-defendant who pleaded guilty, testified to the effect that in August, 1937, he had a conversation with Doctor Deacon in the latter's office in the hospital in which, after some remarks concerning the Irish Sweepstakes, the doctor said "that he thought he could (do) something like that, that if he had that much funds coming in, or something, it would be good." The witness then went on to describe the conversation as follows: "Anyway, one thing led to another. I said I knew someone that ran sweepstakes and baseball and treasury pools, and so forth, and if he was interested, why, maybe I could do something for him; so he said he was and I said, well, I would talk to him."

The above witness' wife Elizabeth, another co-defendant (she was the superintendent of nurses at the hospital), testified that later on in August, at her husband's suggestion, she arranged a meeting between the defendant and a person known to her and her husband as Abraham F. Zimmerman,¹ but whom she introduced to the defendant under the alias of Joseph White.

This individual, by his own admission on the stand, was at the time when he met the defendant, and for some twenty years before that time had been, engaged in the business of operating treasury, baseball and racehorse pools through an organization called the Gold Bond Company. The organization which he had built up over the years was large and extended throughout the northeastern states. It included salesmen in Massachusetts. These facts were known to the Rices but it does not definitely appear that they were also known to the defendant, although in the light of his reported conversation with David Rice it might be assumed that he would have surmised something of the sort. However, there is evidence that at this meeting, or at least at some other one held soon thereafter, Zimmerman told the defendant that he was then operating a pool and that he was "adept at the business of running pools or fund raising projects", and that his organization included agents in various states. Conversations at this meeting and at others which followed resulted on September 23, 1937, in the execution of a five year contract between Zimmerman personally and the hospital corporation.

This contract provided that Zimmerman was "to promote charitable contests in the name of the Will Rogers Memorial Hospital for the purpose of raising money," such "contests" "to be run in a monthly series," and that he was to pay the hospital monthly sums ranging between $500 and $1,500 during the life of the contract. It was stipulated that "The above sums are to be made payable on the first of each month to the Will Rogers Memorial Hospital."

In return for these benefits the hospital agreed that it would not "engage in any other venture of a charitable nature" without the written consent of Zimmerman; that it would affix a sign bearing the name Will Rogers Memorial Hospital "in a conspicuous place at or near the entrance" and that it would display upon its premises "no other sign bearing any other name"; that it would provide on its premises "a space * * * to handle all communications and inquiries"; and that it would account to Zimmerman for "all monies received by * * * (it) from the sale of contest tickets." The contract contained a clause to the effect that both parties to it were "to cooperate in every respect to the end that the contest or contests will be successful." Zimmerman used his alias of Joseph White in signing this contract, and the defendant signed it as president of the hospital corporation. At the time of execution it was orally agreed that before publication proofs of all tickets and advertising matter would be submitted to the defendant for approval.

There was evidence that soon thereafter, with the defendant's knowledge and consent, photographs for advertising purposes were taken in the hospital and that later on printer's proofs of tickets and advertising matter were submitted to and approved by the defendant. Early in January, 1938, Will Rogers Memorial Hospital Charity Fund tickets and advertising matter were shipped in interstate commerce by members of Zimmerman's organization. Interstate motor carriers were the principal instrumentalities employed. Very soon after these shipments were made inquiries regarding the authenticity of the tickets, some of which came from states other than Illinois, began to pour into the hospital. There is evidence that the defendant knew of these inquiries and of the places from which they originated, and there is also evidence that he assisted in formulating the replies thereto.

The defendant, denying a large part of the evidence summarized above, takes the position that he was but the innocent dupe of Zimmerman. When he took the stand in his own defense, however, he admitted that he learned Zimmerman's real name in December, 1937, and that by mid-January, 1938, he was aware that the latter was operating a lottery.

We turn now to the question whether the evidence briefly summarized above is sufficient to support the defendant's conviction under the first or conspiracy count of the indictment.

There can be no doubt that in 1937, and for at least the first part of 1938, Zimmerman and his associates were banded together in the enterprise of shipping lottery tickets in interstate commerce in violation of 18 U.S.C.A. § 387, and there is ample evidence that on various occasions during the latter part of 1937 the defendant had read and approved proofs of the Will Rogers Memorial Hospital Charity Fund tickets and advertisements which Zimmerman was preparing to distribute, and later distributed, to his salesmen in other states. There is also ample evidence that during the first half of January, 1938, after distribution had taken place, the defendant assisted in answering inquiries concerning the authenticity of the tickets. This evidence is sufficient to warrant the conclusion that the defendant participated in the illegal enterprise of Zimmerman and his associates, but the defendant contends that it is not enough to warrant his conviction under the Federal Statutes for conspiring with them because there is no legally sufficient evidence to show that at the time when his acts of participation took place he knew that Zimmerman's activities were in violation of 18 U.S.C.A. § 387.

The defendant asserts that until mid-January, 1938, he supposed that the contests referred to in the contract, — although he left the determination of their exact nature to Zimmerman, — were to be athletic or literary ones, that is, dances, rodeos, wrestling matches, prize fights or essay contests, and that he did not find out that in reality Zimmerman proposed to award prizes as the result of lot or chance until after he had participated with Zimmerman as above described. The government, on the other hand, contends that the evidence is sufficient to indicate beyond a reasonable doubt that the defendant knew from the outset that Zimmerman first proposed to operate and later actually operated a lottery throughout the northeastern part of the United States.

The words of the contract "to promote charitable contests in the name of the Will Rogers Memorial Hospital for the purpose of raising money," do not unmistakably show that a lottery was contemplated. Neither does the wording of either the tickets or advertisements contain anything to indicate that the prizes therein mentioned were to be awarded on the basis of lot or chance. However, neither does anything therein give any indication as to how prizes were to be awarded, and nothing is anywhere said about any sort of dance, exhibition, athletic contest or literary competition.

In view of the vaguely guarded language of the contract and of the large sums of money payable thereunder to the hospital; in view of the reported conversation between the witness David Rice and the defendant and the obvious advantage of the hospital's name to one who wished to operate a lottery; in view of the wording of the advertisements and tickets which are before us as exhibits and their obvious adaptability for use in a lottery, (their form and design would hardly serve any other purpose); and in, view of the defendant's obvious indifference as to what...