Nolan v. United States
| Decision Date | 20 May 1968 |
| Docket Number | No. 24016.,24016. |
| Citation | 395 F.2d 283 |
| Parties | Eugene Anthony NOLAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Raymond W. Bergan, Vincent J. Fuller, Washington, D. C., for appellant.
Morton L. Susman, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.
Before JONES, WISDOM and DYER, Circuit Judges.
The appellant, Eugene Anthony Nolan, was charged in the first count of an indictment with transmitting by telephone between Houston, Texas, and Baton Rouge, Louisiana, bets and wagers on football games and information assisting in the placing of bets and wagers, in violation of 18 U.S.C.A. Sec. 1084.1 By a second count of the indictment Nolan was accused of the interstate use of telephone facilities to carry on unlawful gambling business in violation of 18 U.S.C.A. Sec. 1952. He was convicted of the offense charged in the first count and acquitted of the offense charged in the second count of the indictment.
The appellant moved to dismiss the first count, asserting that it was duplicitous in charging more than one offense. At the same time he filed a motion to require the Government to elect between the two offenses which he contended were charged by the first count and by another motion sought particulars of the uses of the telephone. All of the motions were denied.
One of the principal witnesses against Nolan was Anthony Crappito who testified that he made a number of telephone calls from Houston, Texas, to a telephone in Baton Rouge, Louisiana, which was listed in Nolan's name at an apartment. In these telephone calls Crappito identified himself as "Doc from Houston," or so he testified. None of the calls were person to person calls to Nolan, and Crappito could not identify any person with whom he had talked during his telephone conversations with the Baton Rouge apartment. Crappito's testimony indicated that wagering information was obtained and bets were placed during these telephone conversations.
Nolan had made application on an Internal Revenue form for a gambling tax stamp under 26 U.S.C.A. Sec. 4411. He made monthly tax returns, pursuant to 26 U.S.C.A. Sec. 4401, showing gambling transactions. Nolan filed a motion to suppress these documents and the motion was denied. Nolan was given by the court a continuing objection to the introduction of these papers and to testimony concerning them. Notwithstanding his effort to have the documents suppressed and to have them excluded from evidence, they were introduced in evidence.
During the examination of Crappito he was at first unable to give the name of the boss of the Baton Rouge "book." He later gave the name as "Gene" but perhaps was aided by overhearing the word spoken by someone else in the courtroom. Nolan contended that the grand jury minutes would be in conflict with Crappito's oral testimony about "Gene," and further contended that, before the grand jury Crappito had said that he identified himself as "Doc" rather than "Doc from Houston." Application was made for inspection of the grand jury minutes and the use of them if they could be so used to impeach Crappito's testimony. A somewhat similar contention was made with respect to the testimony of the Government's witness Taylor. The court denied the use of the grand jury minutes at the trial.
In his argument to the jury, the prosecutor talked about "organized crime," referred to Nolan as a "racketeer" and depicted Nolan's defense as "devious, deceitful, duplicitous," and "otherwise untruthful" in his attempt to "trick, fool, and deceive" the jury.
On appeal, as in the district court, Nolan urges that names on the jury list from which the grand and petit jurors were selected were chosen in an unconstitutional manner. The source of the list from which the jurors were selected was made up primarily from the names of registered voters. The deputy clerk stated that aside from the random selection from the voter list, she struck the names of those she believed the judge would excuse and she included the names of some persons who she thought would make good jurors. The fact that the list was compiled primarily from a list of registered voters does not show that the list did not reflect a fair cross section of the community. Thomas v. United States, 5th Cir. 1966, 370 F.2d 96, cert. den. 386 U.S. 975, 87 S.Ct. 1164, 18 L.Ed.2d 133. While it was, we think, improper for the deputy clerk to exclude those few whom she thought the courts would excuse and to include the names of a few who she thought would make good jurors, it does not appear that this deprived the list,...
To continue reading
Request your trial
-
Nolan v. United States
...subjected defendant to a "real and appreciable risk" of self-incrimination. And see United States v. Freeman, supra; Nolan v. United States, 395 F.2d 283 (5th Cir. 1968). The filings were not, however, formally introduced into evidence and the question is whether the oblique references that......
-
United States v. Sklaroff
...proof upon the trial. The instant indictment is unusually detailed for one drawn under 18 U.S.C. § 1084. Compare Nolan v. United States, 5 Cir. 1968, 395 F.2d 283, where an indictment couched in far broader and more general language under the same section, although criticized by the Fifth C......
-
United States v. Kane, 29200.
...have concluded that the defendants were thereby stating they were gamblers. Thus our case is distinguishable from Nolan v. United States, 395 F.2d 283 (5th Cir. 1968) relied upon so heavily by the defendants. In addition, these defendants certainly were not compelled to claim a deduction fo......
-
James v. United States
...made it clear that the test of particularized need must be met before the secrecy of the grand jury may be breached. Nolan v. United States (5th Cir. 1968), 395 F.2d 283; Stassie v. United States (5th Cir. 1968), 401 F.2d 259; White v. United States, 415 F.2d 292 (5th Cir., June 18, 1969).1......