Gilstrap v. United States

• Decision Date: 01 March 1968
• Docket Number: No. 24487.,24487.
• Citation: 389 F.2d 6
• Parties: Lee Mansell GILSTRAP and Marcus Randolph Martin, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

389 F.2d 6 (1968)

Lee Mansell GILSTRAP and Marcus Randolph Martin, Appellants, v. UNITED STATES of America, Appellee.

No. 24487.

United States Court of Appeals Fifth Circuit.

January 31, 1968.

Rehearing Denied March 1, 1968.

Robert B. Thompson, Gainesville, Ga., for appellants.

Allen L. Chancey, Jr., Asst. U. S. Atty., Charles L. Goodson, U. S. Atty., Atlanta, Ga., for appellee; Charles Ruff, Jeremy Zimmerman, Attys., Dept. of Justice, of counsel.

Before MARIS,^* THORNBERRY and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellants and two other defendants were tried by a jury under a four-count indictment charging them with conspiracy to violate and substantive violations of 18 U.S.C. §§ 2, 371 and 1952. The indictment charged that between January 1 and March 1, 1965, the defendants and a man named Stephen Alexander Price conspired, in violation of 18 U.S.C. § 371, to use freight, telephone and telegraph facilities in interstate commerce with the intent to carry on an unlawful gambling enterprise in violation of the laws of Georgia and further in violation of 18 U.S.C. §§ 2 and 1952.

The indictment further charged that Gilstrap used the interstate facilities of Western Union Telegraph Company between Atlanta, Georgia, and Las Vegas, Nevada, to carry on an unlawful business enterprise involving gambling offenses in violation of Georgia law; that Gilstrap and one Coley used the interstate telephone facilities of Southern Bell Telephone and Telegraph Company between Rockdale County, Georgia, and Las Vegas, Nevada, to carry on such unlawful business enterprise; and that Gilstrap and one Mullis used the interstate trucking facilities of certain trucking lines to carry on such illegal purposes between Las Vegas, Nevada, and Atlanta, Georgia.

Prior to the trial appellants moved to dismiss the indictment on the ground that it was too vague in that it alleged an unlawful activity as required by 18 U.S.C. § 1952 but referred to the violation of Georgia law as a violation of the Code of Georgia Annotated, a private publication, and not to the official Code of Georgia of 1933. There is no merit to this contention for Rule 7(c) of Federal Rules of Criminal Procedure requires only that the indictment shall state the official or customary citation of the statute, and that error in the citation shall not be ground for dismissal of the indictment if the error did not mislead the defendants to their prejudice. It is obvious that appellants were in no way prejudiced and the citation to the Code of Georgia Annotated was sufficient.

Appellants further contended that 18 U.S.C. § 1952 is unconstitutionally vague and indefinite and does not sufficiently and concisely define a criminal offense, in violation of the Fifth Amendment to the United States Constitution; that said section is unconstitutional for the reasons that its provisions exceed the power granted Congress in Article 1, Section 8 of the United States Constitution; that the section is unconstitutional because it constitutes an encroachment upon powers reserved by the Tenth Amendment of the United States Constitution to the States and therefore violates that amendment; and finally, the statute is unconstitutional because it infringes upon the right of citizens to travel freely and use the instrumentalities of interstate commerce in interstate travel. None of these contentions has merit. Appellants concede that the statute has survived other attacks based upon substantially the same grounds. They were doubtless referring to the cases of United States v. Zizzo, 7 Cir., 1964, 338 F.2d 577, cert. denied 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435 (1965); Turf Center, Inc. v. United States, 9 Cir., 1963, 325 F.2d 793; Bass v. United States, 8 Cir., 1963, 324 F.2d 168, where the statute was adjudged constitutional by the Seventh, Eighth and Ninth Circuits. The power of Congress to regulate commerce has been used before to prohibit the use of interstate facilities to effect an illegal purpose. See, e. g., United States v. Johnson, 7 Cir., 1945, 149 F.2d 53, cert. denied, 326 U.S. 722, 66 S.Ct. 28, 90 L.Ed. 428 (1945). The statute does not encroach upon rights of the States reserved by the Tenth Amendment. See Marshall v. United States, 9 Cir., 1966, 355 F.2d 999. The district court's ruling which denied appellants' motion to dismiss the indictment was correct.

The jury found Coley guilty on Counts One and Three, Martin guilty on Count One and Gilstrap guilty on all four counts. Defendant Mullis was allowed to enter a plea of nolo contendere and was not tried with the other defendants. Gilstrap and Martin bring this appeal.

At the trial, Stephen Price, the fifth man in the conspiracy, testified as a witness for the Government to show Gilstrap's prior dealings in the gambling business and to establish a motive on the part of Gilstrap to commit the crimes presently charged against him. Price testified that he had been Gilstrap's partner in a gambling operation at a place called Yarborough Estates, near McDonough, Georgia, and that after this operation terminated, Gilstrap hired him to work as a crap dealer in another gambling place identified as a concrete block building in Rockdale County, Georgia, about one and one-half miles from the Yarborough Estates place. Within two months of its opening, this second operation was raided by the police and Gilstrap's gambling equipment was confiscated. Soon thereafter, during January of 1965, Gilstrap and Coley contacted Price to inquire about the availability of some used gambling equipment. In the presence of Gilstrap and Coley, Price telephoned a Mr. Sullivan with Christy Jones and Company in Las Vegas, Nevada, who informed him that he had such equipment for sale and told him what the cost would be. One of the men, either Gilstrap or Coley, gave Price the money for the equipment and instructed him to order it in Coley's name, and to charge any phone calls he might have to make to Coley's telephone number. Price did as he was instructed and ordered the equipment by telephone. When the equipment was late in arriving, Coley became concerned and persuaded Price to trace and expedite delivery of the equipment. Price made several calls to Las Vegas and to St. Louis, Missouri, again charging them to Coley's phone number, and eventually located the equipment in Atlanta, Georgia.

Not long after these transactions were completed, Gilstrap hired Price to work at a gambling establishment in Augusta, Georgia, called the Paramount Club, where defendants Coley and Martin also were employed.

The defendants concede that the testimony of the other witnesses and the documentary evidence established that the gambling equipment was shipped via truck freight from Las Vegas to Atlanta, that Coley made inquiry concerning the shipment, and that when it arrived in Atlanta, Mullis picked it up, using the name Coley. The defendants also concede that the evidence established that a Western Union money order in the amount of $1,895.84 was sent from Atlanta to Christy Jones and Company in Las Vegas, Nevada, and that the jury could have reasonably inferred that this was the money order Price testified he sent to cover the cost of the equipment. The defendants further concede that the evidence disclosed that between January 1 and March 1, 1965, a number of long-distance telephone calls were made from, to and among the defendants, including such locations as Gilstrap's home, Martin's home, the house Martin rented in Augusta, Coley's residence, Mullis' residence, and several pay stations located in the vicinity of the Paramount Club in Augusta, Georgia; and that the record will support a finding by the jury that such calls were made.

Appellants contend that the court erred in admitting evidence of Gilstrap's prior criminal activity on the ground that the events were remote in time to the offenses charged in the indictment; that they had no relevancy to the issue on trial; that they...