U.S. v. Hines, Nos. 82-2041

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore HOLLOWAY, McWILLIAMS and BARRETT; HOLLOWAY
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Carla Florentine HINES, Leroy Dale Hines, Anna Mae Hines, Defendants- Appellants.
Decision Date30 September 1982
Docket Number82-2042 and 82-2063,Nos. 82-2041

Page 934

689 F.2d 934
UNITED STATES of America, Plaintiff-Appellee,
v.
Carla Florentine HINES, Leroy Dale Hines, Anna Mae Hines,
Defendants- Appellants.
Nos. 82-2041, 82-2042 and 82-2063.
United States Court of Appeals,
Tenth Circuit.
Sept. 30, 1982.

Page 935

Carl Hughes and William E. Liebel, Oklahoma City, Okl., for defendant-appellant Carla Florentine Hines.

Michael Gassaway, Oklahoma City, Okl., for defendant-appellant Leroy Dale Hines.

Daniel Zorn, Oklahoma City, Okl., for defendant-appellant Anna Mae Hines.

William S. Price, U. S. Atty., Oklahoma City, Okl., David B. B. Helfrey and Robert E. Mydans, Attys., Dept. of Justice, Kansas City, Mo., for plaintiff-appellee.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

These three appeals have been taken by defendants-appellants from an order denying their motions to dismiss the criminal indictment against them on double jeopardy grounds pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 561. At this juncture the court has before it a joint application filed on September 20, 1982, by these three defendants, for a stay of proceedings by which they ask that we stay the criminal trial in the district court of these defendants and several others indicted with them, the trial being scheduled for October 4, 1982. By its response the Government opposes the stay.

I

Count I of the instant indictment, which is the only count in this indictment naming these appellants as defendants, alleges that from on or about November 1, 1978, until on or about January 23, 1979, in the Western District of Oklahoma and elsewhere, these defendants-appellants and several other named defendants unlawfully, wilfully, and knowingly conducted, financed, managed, supervised, directed, and owned all or part of an illegal gambling business in violation of the laws of the State of Oklahoma, including 21 O.S.A. §§ 982 and 987, said illegal gambling business being conducted, etc. by five or more persons and having a gross revenue of $2,000.00 or more on one or more single days between November 1, 1978, and January 23, 1979, all in violation of §§ 2 and 1955 of Title 18, United States Code.

The stay application and papers before us show that the defendants made motions in September 1981 to dismiss the indictment on double jeopardy grounds. Other motions by various defendants were filed thereafter. On August 20, 1982, a hearing was held in the district court. Evidence was introduced and these defendants asserted that their double jeopardy defense was based on prosecution of them in No. 79-CR-123, Northern District of Oklahoma. The indictment

Page 936

in that Northern District case charged that these defendants had conspired to use interstate travel and facilities to further an Oklahoma bookmaking gambling operation which was illegal under Oklahoma law.

That prosecution resulted in a conviction of the defendants for conspiracy in violation of 18 U.S.C. § 371 to commit a Travel Act offense, 18 U.S.C. § 1952, against the United States. 1 Section 1952 prohibits the use of interstate travel and facilities where the intent is to further any unlawful activity, which includes gambling offenses in violation of State law. Defendants argued that the time frames of the activities involved in the Northern District case and in the instant conspiracy case are exactly the same.

At the hearing on the double jeopardy motions on August 20, 1982, an order was entered overruling the motions and trial was scheduled for October 4, 1982. The defendants filed timely Abney notices of appeal on August 25 and 27. On August 26 and September 2, defendants further moved for abatement of proceedings in the district court, pending appeal.

In a further order on September 14 the court found that the arguments supporting the double jeopardy claims were frivolous and without merit, that the denial of the motions to dismiss and the pleas of double jeopardy and subsequent filing of defendants' notices of appeal did not divest the district court of jurisdiction, and that the motion to abate proceedings pending appeal should be denied.

II

We are mindful that we are dealing with a sensitive constitutional right when we consider the...

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29 practice notes
  • U.S. v. Salerno, Nos. 91-106
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 1989
    ...697 F.2d 1200, 1204 & nn. 3-5 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983); United States v. Hines, 689 F.2d 934, 936-37 (10th Cir.1982); United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 2......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...is brought under the doctrine of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). See United States v. Hines, 689 F.2d 934 (10th Cir.1982). For the reasons set out below, we Genser was originally indicted on June 17, 1982, and charged with four counts of "knowingl......
  • Stewart v. Donges, Nos. 88-2454
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 17, 1990
    ...time prior to trial by merely filing a motion, however frivolous, and appealing the trial court's denial thereof. United States v. Hines, 689 F.2d 934, 936-37 (10th The court in Hines held that this potential misuse of interlocutory review could be prevented if the district court "(1) after......
  • USA. v. Montgomery, No. 98-4688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 30, 2000
    ...States v. LaMere, 951 F.2d 1106, 1108 (9th Cir. 1991); United States v. Black, 759 F.2d 71, 73 (D.C. Cir. 1985); United States v. Hines, 689 F.2d 934, 936-37 (10th Cir. 1982); United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir. 1982); United States v. Grabinski, 674 F.2d 677, 679 (8th ......
  • Request a trial to view additional results
29 cases
  • U.S. v. Salerno, Nos. 91-106
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 1989
    ...697 F.2d 1200, 1204 & nn. 3-5 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983); United States v. Hines, 689 F.2d 934, 936-37 (10th Cir.1982); United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 2......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...is brought under the doctrine of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). See United States v. Hines, 689 F.2d 934 (10th Cir.1982). For the reasons set out below, we Genser was originally indicted on June 17, 1982, and charged with four counts of "knowingl......
  • Stewart v. Donges, Nos. 88-2454
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 17, 1990
    ...time prior to trial by merely filing a motion, however frivolous, and appealing the trial court's denial thereof. United States v. Hines, 689 F.2d 934, 936-37 (10th The court in Hines held that this potential misuse of interlocutory review could be prevented if the district court "(1) after......
  • USA. v. Montgomery, No. 98-4688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 30, 2000
    ...States v. LaMere, 951 F.2d 1106, 1108 (9th Cir. 1991); United States v. Black, 759 F.2d 71, 73 (D.C. Cir. 1985); United States v. Hines, 689 F.2d 934, 936-37 (10th Cir. 1982); United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir. 1982); United States v. Grabinski, 674 F.2d 677, 679 (8th ......
  • Request a trial to view additional results

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