U.S. v. Crockett

• Decision Date: 05 June 1975
• Docket Number: No. 73-4013,73-4013
• Citation: 514 F.2d 64
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Wray CROCKETT, Jr., David Keen Crockett, and Jewell L. Futch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 64

514 F.2d 64

UNITED STATES of America, Plaintiff-Appellee, v. Edward Wray CROCKETT, Jr., David Keen Crockett, and Jewell L. Futch, Defendants-Appellants.

No. 73-4013.

United States Court of Appeals Fifth Circuit.

June 5, 1975.

Floyd Buford, Macon, Ga., for Jewell L. Futch.

Herbert Shafer, Atlanta, Ga., James K. O'Malley, Pittsburgh, Pa., for E. W. Crockett, Jr., and David K. Crockett.

William J. Schloth, U. S. Atty., O. Hale Almand, Jr., Asst. U. S. Atty., Macon, Ga., for the U. S Appeals from the United States District Court for the Middle District of Georgia.

Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.

RONEY, Circuit Judge:

This case involves a different phase of the same gambling conspiracy with which we dealt in United States v. Crockett, 506 F.2d 759 (5th Cir. 1975), petition for cert. filed, 43 U.S.L.W. 3540 (U.S. April 8, 1975) (# 74-1252). That case involved the operation of an illegal gambling business at the Valdosta, Georgia, Chapter of the Fraternal Order of the Eagles, in which defendant Edward Wray Crockett, Jr. had been a principal. This case involves the operation of another gambling enterprise in which Edward Wray Crockett, Jr. was an active participant, the Valdosta Amusement Company (the Company).

Edward Wray Crockett, Jr. and his son, David Keen Crockett, were indicted in July 1973, for violations of 18 U.S.C.A. § 1955, for operating an illegal gambling business, and of 18 U.S.C.A. § 371, for conspiracy to violate § 1955. In addition, the father was indicted along with Jewell L. Futch, sheriff of Lowndes County, Georgia, for conspiring to obstruct the enforcement of the gambling laws of the State of Georgia with the intent to facilitate an illegal gambling business, in violation of 18 U.S.C.A. § 1511. After a jury trial, Edward Wray Crockett, Jr. was found guilty on all three counts and given three concurrent sentences of five years. David Keen Crockett was acquitted on the § 371 conspiracy charge but convicted on the § 1955 substantive violation and sentenced to three years probation and fined $3000. Sheriff Futch was convicted of conspiring to obstruct the enforcement of the gambling laws and sentenced to five years.

On this appeal the defendants raise a total of nine issues for review, challenging: (1) the constitutionality of the federal statutes and the applicability of the statutes to the intrastate activities of the defendants in this case; (2) the denial of a motion to sever based on the indictment's alleged charge of unrelated conspiracies; (3) the admissibility of evidence of alleged misconduct not charged in the indictment; (4) the trial court's instruction to the jury on the Georgia gambling laws, as amounting to a partial directed guilty verdict; (5) the trial court's "all or nothing" charge, which required that the jury either convict both defendants or acquit both defendants of the obstructing justice conspiracy; (6) the sufficiency of proof of an essential element of a § 1955 substantive offense, i. e., proof that the gambling operation involved more than five persons; (7) the sufficiency of evidence in support of the sheriff's conviction for conspiring to obstruct the enforcement of the Georgia gambling laws; (8) the denial of a motion for a new trial predicated on the statutory disqualification of one juror who was a convicted felon; and (9) the permissibility of convictions for both conspiracy and the substantive § 1955 crime under Wharton's Rule. Finding that none of these issues warrant reversal or the granting of a new trial, we affirm as to all defendants.

As proof of the crimes charged against all defendants, the Government introduced a great deal of evidence concerning the gambling operation of the Valdosta Amusement Company, an enterprise operated by Edward Wray Crockett, Jr. Specifically, the Government demonstrated that the Company carried on its business by placing various mechanical gambling devices in numerous locations in Lowndes and other south Georgia counties. Employees of the Company, including David Crockett, would go to the various establishments in which the devices were located and would collect from them, i. e., "rob" the money which had been deposited by the users of the machines. Then, after dividing the "take" between the particular establishment and the Company according to a prearranged formula, the Valdosta Amusement Company employee making the collection, the "route man," would deliver the money to the Company's secretary and bookkeeper.

When the Company employee "robbed" the machines, the various establishments would be given a receipt indicating the amount collected and their proportionate share thereof. The receipt would also show the amount taken out for federal gambling machine licenses and state sales taxes. The evidence demonstrated, however, that at a number of establishments in Lowndes County only, an additional $20.00 deduction was "cut off the top" from the total taken from the machine. No record was made of this deduction by either the Company employee or the establishment at which the machine was located. Thus, as to each establishment where this procedure was followed, the records of both the Valdosta Amusement Company and the establishment would consistently reflect collections in the amount of $20.00 less than what was taken from the machines. The sum of the several $20.00 collections was placed in envelopes and put in a cigar box in a cabinet in Edward Wray Crockett's office.

Testimony by various witnesses indicated that the amount of money thus clandestinely collected was to go to "the man." Defendants attempted to show that "the man" was the elder Crockett. The Government's theory of the case, apparently accepted by the jury, was that "the man" was Sheriff Futch and that the $20.00 "off the top" was intended for, and did go to Sheriff Futch for "protection" of the operations of the Valdosta Amusement Company and the Eagles Club, the phase of the gambling enterprise involved in the earlier Crockett case.

MISCELLANEOUS POINTS FOR REVIEW

Several of the issues raised on appeal can be disposed of in summary fashion, as they have already been decided adversely to defendants by prior decisions of this Court or the Supreme Court.

The constitutionality of § 1955 and its applicability to a factual situation not unlike the case sub judice was upheld in United States v. Harris, 460 F.2d 1041 (5th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972). Since the identical definition of "illegal gambling business" found in § 1955 (prohibition of illegal gambling business) is the key to conviction under § 1511 (obstruction of state or local law enforcement), the challenge to the constitutionality and applicability of § 1511 is likewise foreclosed by clear Circuit precedent. Accord, United States v. Riehl, 460 F.2d 454 (3rd Cir. 1972).

The argument that the defendants should have been granted a new trial because of the statutory disqualification of one of the jurors has been rejected by this Court in Ford v. United States, 201 F.2d 300 (5th Cir. 1953), where we held that such motion could only succeed upon a showing of actual bias or prejudice. Accord, United States v. Silverman, 449 F.2d 1341, 1344 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972); Gomez v. United States, 245 F.2d 344 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 95, 2 L.Ed.2d 68 (1957). Here as in Ford and the other cases cited, there has been no showing of actual prejudice or bias. Moreover, defendant Futch's argument that this case is distinguishable from the Ford line of decisions, because he was denied access to the list of prospective jurors, is also foreclosed by Circuit precedent to the contrary. "Defendants are not, as a matter of right, entitled to receive the list of jurors prior to the day of trial. The time at which defendants may be given a jury list is left to the sound discretion of the trial court." Spivey v. United States,109 F.2d 181, 185 (5th Cir.), cert. denied, 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401 (1940). Bound by the Ford-Spivey line of cases, we find no error in the trial court's denial of the motion for a new trial.

The contention that a partial verdict of guilty was in effect directed when the trial court failed to read or paraphrase to the jury the text of the applicable Georgia gambling laws has recently been considered and rejected by this Court in the earlier Crockett case. 506 F.2d at 761-762.

Finally, the United States Supreme Court has recently held that Wharton's Rule does not preclude convictions for both a § 1955 substantive offense and a § 371 conspiracy to violate § 1955. Iannelli v. United States,--- U.S. ---, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). We had previously made the same decision in United States v. Pacheco, 489 F.2d 554 (5th Cir. 1974), cert. denied, --- U.S. ---, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975).

The remaining issues raised by the defendants require a fuller discussion.

THE DENIAL OF THE SEVERANCE MOTION

Sheriff Futch was charged in only one of the three counts of the indictment. Counts one and two did not name Futch but charged only the two Crocketts with operation of an illegal gambling business prohibited by 18 U.S.C.A. § 1955, and with conspiracy to commit that substantive offense. Futch and Edward Wray Crockett, Jr. were charged in the third count with a conspiracy to obstruct the Georgia laws against gambling in violation of 18 U.S.C.A. § 1511. The Government's trial theory had the Crocketts operating the gambling business, through the Valdosta Amusement Company, and Futch, in his capacity as county sheriff, protecting that business. Thus, the offenses charged in the indictment were all related to the gambling activities of the Valdosta Amusement Company.

Under F.R.Crim.P. 8(b) multiple defendants may be joined in a single indictment where they are alleged to have participated in "the same act...