U.S. v. Hawthorne

Decision Date11 September 1980
Docket NumberNo. 79-1732,79-1732
Citation626 F.2d 87
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Robert HAWTHORNE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph Milchen, San Diego, Cal., for defendant-appellant.

Robert D. Rose, Asst. U. S. Atty., San Diego, Cal., argued for plaintiff-appellee; Brian Michaels, Sp. Asst. U. S. Atty., San Diego, Cal., on brief.

Appeal from the United States District Court for the Southern District of California.

Before ALARCON and NELSON, Circuit Judges, and JAMESON, * District Judge.

PER CURIAM:

James Robert Hawthorne was convicted, following a court trial, of conducting an illegal gambling business in violation of 18 U.S.C. § 1955. 1 On appeal he contends that (1) the indictment should have been dismissed because two attorneys appointed to assist the United States Attorney were not authorized to conduct the grand jury proceedings resulting in the indictment; and (2) the evidence was insufficient to support the court's finding that appellant's gambling business was being conducted by "five or more persons" as required by § 1955. We affirm.

Authority of Special Assistants to the United States Attorney

At the request of the United States Attorney for the Southern District of California the Attorney General appointed James L. Duchnick and Richard D. Huffman as special assistants to the United States Attorney. 2 In that capacity each participated in the grand jury proceedings which resulted in appellant's indictment.

Appellant moved for dismissal of the indictment on the ground that the two attorneys were not properly authorized to appear before the grand jury because the letters from the Attorney General appointing the attorneys did not specifically direct them to conduct grand jury proceedings, as required by 28 U.S.C. § 515. 3 The Government contended that the attorneys were appointed pursuant to 28 U.S.C. § 543 4 rather than § 515, and that § 543 does not require that attorneys appointed pursuant to its provisions be specifically directed by the Attorney General to conduct grand jury proceedings. Appellant argued before the district court, as he does on this appeal, that § 515(a) is not "enabling legislation"; that § 543 empowers the Attorney General to make the appointment and § 515 then prescribes the "requirements to be followed once the appointment is effectuated".

In a well reasoned opinion the district court agreed with the Government and denied the motion to dismiss the indictment. Following a careful analysis of the provisions of § 515 and § 543 and their legislative history, the court concluded that

these specially appointed attorneys are properly considered attorneys appointed to assist the United States Attorney, pursuant to § 543, rather than assistants to the Attorney General pursuant to § 515. This conclusion is based upon the following facts: The work of Duchnick and Huffman was directly supervised by the United States Attorney, who authorized their appearance before the grand jury. In argument before the court, the United States Attorney, Michael Walsh, stated that Duchnick and Huffman have at all times been directly responsible to his office, and that he has complete control of their activities as prosecutors for the United States. Moreover, there is no indication in the record that there was any contact between the Attorney General and the specially appointed attorneys in this case other than the letter which appointed them as special assistants to the United States Attorney.

Accordingly, the court finds that Duchnick and Huffman, who were appointed as "special assistants to the United States Attorney," were attorneys appointed "to assist the United States Attorney" within the meaning of § 543. Therefore, since § 543 is an independent statutory basis for the appointment of attorneys to assist the United States Attorney, and since § 543 does not require that attorneys appointed pursuant to its provisions be specifically directed to conduct grand jury proceedings by the Attorney General, the indictments obtained in the grand jury proceedings at which Duchnick and Huffman assisted are valid.

On this issue we adopt the opinion of the district court, which is reported at 449 F.Supp. 1048 (S.D.Cal.1978).

On appeal Hawthorne relies heavily on United States v. Prueitt, 540 F.2d 995, 999-1004 (9 Cir. 1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977), a case not considered by the district court. It is true, as appellant argues, that the letters appointing Duchnick and Huffman would not meet the requirements set forth in Prueitt construing § 515. We agree with the Government, however, that Prueitt is distinguishable. There the special attorney was "an attorney for the Narcotic and Dangerous Drug Section of the Department of Justice". § 515 was admittedly applicable. The sole question was whether the Attorney General had complied with its requirements in his letter of authorization. In reviewing cases upholding letters of authorization under similar circumstances this court recognized that in enacting the statute which has become § 515(a) Congress was attempting to expand the authority of the Attorney General to combat crime and to make certain that the Attorney General and those under his direction were empowered to conduct criminal proceedings which the United States Attorneys were authorized to conduct.

In this case, however, the special attorneys were appointed at the request of the United States Attorney, worked under his supervision, and were authorized by him to appear before the grand jury. As the district court found, there was no indication of any contact between the Attorney General and the special assistant attorneys aside from the letters of appointment. We agree with the district court that § 543 is controlling and that the indictments were valid.

Sufficiency of the Evidence

During 1976 Special Agents of the Federal Bureau of Investigation investigated bookmaking activities in which appellant participated. Between September and November of 1976, pursuant to a court order, they intercepted telephone conversations placed at a condominium at La Costa, California, and an apartment in Los Angeles, California. On December 5, 1976, the FBI seized gambling records from both premises pursuant to a search warrant.

At trial transcripts of the wiretapped conversations, expert testimony on gambling operations, and stipulated facts revealed that Hawthorne provided financing for a bookmaking operation run by Joseph Bassi and his wife at the La Costa condominium. This operation accepted bets on football games for a commission and exchanged "layoff bets", "line" information, and other information with various persons, many of whom were bookmakers. 5 The evidence also showed that Bassi frequently traveled to the Los Angeles apartment, where Samuel Traub operated a gambling operation involving five or more persons. While at Traub's apartment, Bassi continued his own operation and sometimes exchanged gambling information and layoff bets with Traub. 6

At trial appellant stipulated that the evidence proved all of the elements of the offense charged except for the involvement of "five or more persons who conduct, finance, supervise, direct or own all or part of (the gambling business), as required by 18 U.S.C. § 1955(b)(1)(ii). (See Note 1 supra). In considering the sufficiency of the evidence on this requirement, we must, of course, view the evidence in the light most favorable to the Government and give the Government the benefit of all inferences favorable to it that reasonably may be drawn from the evidence.

Following the court trial and argument of counsel, the trial judge in open court 7 found that the participation of five or more persons was "clearly established" and included, in addition to appellant and the Bassis, Samuel Traub, Billy Layton, Don DeCoy, and Leonard DiSandro. The court found further that the "lay-off betting that occurred between Mr. Bassi and Mr. Traub was clearly evident".

Appellant argues that the "government's proof evidenced at best isolated and casual instances of lay-off bets and exchanges of line information between his three person operation and the other persons whom the judge found were involved, and the contacts were not sufficient to satisfy the "five or more persons" requirement.

In finding that the various participants were "conductors" within the meaning of § 1955, the trial court relied heavily on United States v. Grezo, 566 F.2d 854 (2 Cir. 1977), quoting at length from the opinion in that case. Grezo contains a comprehensive analysis of the legislative history and purpose of § 1955 and prior cases interpreting its provisions. The court said in part:

18 U.S.C. section 1955 makes it illegal to conduct, finance, manage, supervise, direct, or own all or part of an illegal gambling business. The courts have interpreted these terms broadly to include not only the upper; but also the lower echelon of a gambling business. Thus we held in United States v. Becker, 461 F.2d 230 (2d Cir. 1972), judgment vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974), that all who participate in a gambling operation, "regardless how minor their roles," are "conductors" of the business. This includes agents, runners, "independent contractors", salesmen, and excludes only betting customers. Other circuits are in unanimous agreement on this interpretation of the statute. (Citations omitted.)

Id. at 857.

. . . (W)e conclude that when otherwise independent bookmakers regularly place consistent, substantial layoff bets with a gambling business, they should be considered to "conduct" that business within the meaning of § 1955, despite any superficial similarity which their activities may bear to those of the average customer. 8

Id. at 859.

In United States v. Sacco, 491 F.2d 995 (9th Cir. 1...

To continue reading

Request your trial
10 cases
  • In re Grand Jury Investigation
    • United States
    • U.S. District Court — District of Columbia
    • July 31, 2018
    ...and could be directed only by the President. United States v. Hawthorne , 449 F.Supp. 1048, 1051 (S.D. Cal. 1978), aff'd , 626 F.2d 87 (9th Cir. 1980). The Act thus "created a system in which the Attorney General was specifically authorized to represent the United States only in judicial pr......
  • Alaniz v. Office of Personnel Management
    • United States
    • U.S. District Court — District of Alaska
    • August 25, 1982
  • U.S. v. Navarro, 97-16794
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 24, 1998
    ...of the provision was enacted over a century ago. See United States v. Hawthorne, 449 F.Supp. 1048, 1051 n. 5 (S.D.Cal.1978), aff'd, 626 F.2d 87 (9th Cir.1980).4 Navarro's argument that the Department of Justice's Manual for United States Attorneys somehow affects this analysis is otiose. In......
  • United States v. Riggleman
    • United States
    • U.S. District Court — Southern District of West Virginia
    • January 9, 2013
    ...As this Court has indicated, this statute exists as an indication of authority, not as a limitation."See also United States v. Hawthorne, 626 F.2d 87, 89 - 90 (9th Cir. 1980). Congress has therefore provided for interagency cooperation in law enforcement. The Attorney General may delegate a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT