Dillon v. United States
| Decision Date | 12 April 1968 |
| Docket Number | 9132,9133,9134.,No. 9131,9131 |
| Parties | Billy Eugene DILLON, Appellant, v. UNITED STATES of America, Appellee. Michael Bruce BARTELLO, Appellant, v. UNITED STATES of America, Appellee. William O. DUGGAR, Appellant, v. UNITED STATES of America, Appellee. Kenneth ENDICOTT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Neil Howard Fink, Oak Park, Mich. (Joseph W. Louisell and Ivan E. Barris, Detroit, Mich., on brief), for appellants Dillon, Duggar and Bartello.
Fred M. Bruner, Dallas, Tex. (Jerry Lastelick, Dallas, Tex., on brief), for appellant Endicott.
Guy L. Goodwin, Asst. U. S. Atty., Wichita, Kan. (Newell A. George, U. S. Atty., Wichita, Kan., on brief), for appellee.
Before PICKETT, HILL and HICKEY, Circuit Judges.
The appellants were charged in five counts with violation of 18 U.S.C. § 1952, commonly called anti-racketeering legislation which was enacted by Congress in 1961. In count VI each appellant was charged also with conspiracy, in violation of 18 U.S.C. § 371.
Endicott was found guilty on all counts; Bartello and Dillon were found guilty on counts II through VI; Duggar was found guilty on count VI, conspiracy. Motions for a new trial were filed and denied. Sentences were pronounced and this appeal followed.
Endicott charges error in the admission of evidence of the crime of abortion. It is alleged the crime of abortion is not within the unlawful activities proscribed in 18 U.S.C. § 1952. Dillon charges he was not arraigned without unnecessary delay as required by Fed.R. Crim.P. 5(a), and his confession was not admissible because his constitutional rights were violated. The error assigned by Duggar is the admission of testimony relating to statements made by him after his arrest which were allegedly fruits of interrogations made in violation of the Fourth and Fifth Amendments. Bartello charges error in admitting testimony from a deposition of a co-conspirator, who died before the trial, which deposition by innuendo exposed Bartello's prior convictions. Endicott, Bartello and Duggar also allege error in the denial of their motions for separate trials.
The scheme charged was an attempt on the part of the accused to establish and carry on gambling and bribery in the State of Kansas. Also a part of appellants' scheme, but not charged in the indictment, was the establishment of an abortion ring.
The mode of gambling to be established by appellants was bingo. Bingo is illegal in Kansas; therefore, in order to set up and operate the scheme it was necessary to have police protection. Several police officers identified appellants as persons who offered bribes, identified their associates and described the scheme to them. Dillon, who was an investigator on the payroll of the Attorney General of Kansas, was used to assure the persons contacted that the scheme had been cleared with the Attorney General's office. The testimony of local realty managers related efforts made by appellants to rent locations for bingo games to be operated for charitable purposes.
The testimony of a locally known convicted abortionist disclosed a plan to set up a referral operation under which the witness and other physicians would direct abortion referrals to appellants' abortion clinic in Wichita, Kansas. Bartello was to be the "contact man" who would take the women to be aborted. Duggar, a medical doctor from Detroit, Michigan, was to provide medical attention in the event serious health problems arose or hospitalization was required.
We consider appellant Endicott's objection to the evidence of abortion offered and received during the trial because it relates to the scope of the statute under which the appellants were indicted.
The statute is a trifid declaration of offenses with a bifarious definition of "unlawful activity". The indictment and prosecution in this case directs itself to 18 U.S.C. § 1952 which provides in part:
Endicott contends it was error to admit evidence of the crime of abortion because the crime is not within the purview of 18 U.S.C. § 1952. It is also contended evidence of abortion "did not prove intent, did not show a course of conduct or did not tend to prove the crimes charged in the indictment." We cannot agree with these contentions. The reason or motive for the bribery was immunity from prosecution for gambling by lottery (bingo) and abortion, both violations of the laws of Kansas. The intent to condemn the violation of state law as contained in 18 U.S.C. § 1952 is discussed in United States v. Miller, 379 F.2d 483, 488 (7th Cir. 1967). The statute has been discussed and interpreted by several of the circuits. United States v. Ross, 374 F.2d 227 (6th Cir. 1967); United States v. Hawthorne, 356 F.2d 740 (4th Cir. 1966); Marshall v. United States, 355 F.2d 999 (9th Cir. 1966); United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964). In our circuit the District Court of Colorado discussed the statute in United States v. Ryan, 213 F.Supp. 763 (D.Colo.1963). All of the courts have identified the purpose of Congress to stamp out racketeering which flourished because of gambling (lotteries) and bribery, together with other evils identified in the section.
Although the crime of abortion is not specifically mentioned in 18 U.S.C. § 1952, the crime of bribery is, and in order to prove the violation of the Kansas bribery statute it was necessary to show what the bribes sought to protect. Jones v. United States, 251 F.2d 288, 294 (10th Cir. 1958). Evidence of abortion was material to the issues being tried. Woodland v. United States, 347 F.2d 956, 958 (10th Cir. 1965).
Dillon urges that the admission of his statement was error because he was not "taken without unnecessary delay before the nearest available commissioner."1 This is the only ground urged; therefore, our question is narrowed to whether or not the delay was unnecessary. The governing principles of law with a full discussion of the controlling precedent setting forth fully and adequately the rules which control this point on appeal are contained in Walton v. United States, 334 F.2d 343 (10th Cir. 1964), cert. denied Comley v. United States, 379 U.S. 991, 85 S.Ct. 706, 707, 13 L.Ed.2d 612; Zamora v. United States, 369 F.2d 855 (10th Cir. 1966).
Dillon, on the request of city police, went to the police station at 5:25 P.M. and was placed in an interview room. At 6:17 P.M. agents of the Federal Bureau of Investigation went into the room and advised Dillon of the charges pending against him and of his constitutional rights. He voluntarily gave them a statement. The record reveals the officers were diligently searching for a commissioner during this period and located one at 10:00 P.M. who immediately came to the police station and arraigned Dillon at 10:30 P.M. This court has recognized that it is now settled that if an arrested person makes an incriminating statement after an arresting officer has failed to comply with Rule 5(a) the statements are not admissible even though voluntarily made. Walton v. United States, supra at 346 of 334 F.2d. While the officers were attempting to locate the commissioner, Dillon learned that a search warrant for his home had been obtained and he voluntarily consented to the search and told the officers of his association with the other defendants. The record reflects that the objections to the introduction of the statements were not based upon a violation of Fed.R.Crim.P. 5(a) but were based on its effect upon the other defendants and a contention that it was not voluntarily made.
We conclude the delay was not unnecessary because the government has met the burden of proving they diligently sought a commissioner and as soon as one was available the agents took the accused before him for arraignment. Although the trial court did not have the specific question of unnecessary delay before it, because the issue was not raised,2 it did hear testimony regarding the diligent search for a commissioner and under all the circumstances admitted the statements into evidence. The specific facts of this case, together with the rules heretofore adopted by this court in Walton v. United States, supra, direct us to the conclusion there was no unnecessary delay and, therefore, the statement was admissible. Butterwood v. United States, 365 F.2d 380, 384-385 (10th Cir. 1966); Stille v. United States, 354 F.2d 233 (10th Cir. 1965).
It is further contended by Dillon that after counsel had been retained for him the F.B.I. agent interviewed him without his counsel being present and this procedure tainted the admissions. We do not agree. The fact that Dillon's counsel was not present at the time the admissions were confirmed does not ipso facto render them inadmissible. Butterwood v. United States, supra at 383 of 365 F.2d. The presence of counsel can be waived as well as demanded. Certainly, if an accused can waive the right to counsel when that right first attaches, Adams v. United States ex rel. McCann, 317 U.S....
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