U.S. v. Manuszak

• Decision Date: 16 January 1976
• Docket Number: No. 75-1294,75-1294
• Citation: 532 F.2d 311
• Parties: UNITED STATES of America v. Alfred Henry MANUSZAK, a/k/a "Sassy Doc", et al., Appeal of Charles IANNECE.
• Court: U.S. Court of Appeals — Third Circuit

Page 311

532 F.2d 311

UNITED STATES of America v. Alfred Henry MANUSZAK, a/k/a "Sassy Doc", et al. Appeal of Charles IANNECE.

No. 75-1294.

United States Court of Appeals Third Circuit.

Argued Sept. 17, 1975.

Decided Jan. 16, 1976.

Robert E. J. Curran, U. S. Atty., Eastern District of Pennsylvania, Donald F. Manno, Sp. Atty., Philadelphia Strike Force, Sidney M. Glazer, Richard S. Stolker, Attys., Dept. of Justice, Washington, D. C., for appellee.

Joel Harvey Slomsky, Joseph C. Santaguida, Philadelphia, Pa., for appellant Charles Iannece.

Before SEITZ, Chief Judge, and ROSENN and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

The appellant, having been acquitted of certain gambling charges in a state proceeding, asserts that the district court could not revoke his federal probation on the basis of uncontradicted evidence of his gambling activities. We hold that the district court did not abuse its discretion in revoking Iannece's probation and therefore affirm.

I.

On January 29, 1974 appellant, Charles Iannece, pleaded guilty in the United States District Court for the Eastern District of Pennsylvania to Count I of a two-count indictment, which charged him with conspiring to conduct an illegal gambling business in violation of 18 U.S.C. § 371. ¹ At the time of the entry of his plea, the imposition of a prison sentence was suspended and Iannece was placed on probation for one year and fined $1,000. Among the terms of probation set by the court was that Iannece "shall refrain from any unlawful conduct."

Iannece, however, did not completely sever his gambling ties. On October 23, 1974 a search of the residence where Iannece's mother lived was conducted by the Philadelphia police pursuant to a search warrant. Iannece, who was present, was arrested at the conclusion of the search. During the search, the police found gambling tally sheets on Iannece's person as well as rice paper containing lists of horse bets and numbers concealed under his mother's mattress.

In early November, 1974, a federally authorized wiretap revealed that a number of telephone conversations transmitting betting information had been made to the telephone located at Iannece's residence. Government agents identified one of the conversants as Iannece.

In December, 1974 after obtaining a warrant, F.B.I. agents searched Iannece's residence. During the search Iannece informed the agents that they were too late as the Philadelphia police had just recently "hit his operations" at his mother's house.

Iannece was subsequently charged and tried by the Commonwealth of Pennsylvania for violating Pennsylvania gambling laws. During that trial, which resulted in Iannece's acquittal, Philadelphia Police Officer Reid testified about the documents he had seized during the October 23, 1974 search at the mother's residence.

On January 23, 1975 the United States filed a petition to revoke Iannece's federal probation. The petition charged Iannece had violated the conditions of his probation by:

a. conducting an illegal gambling business in Philadelphia, Pennsylvania, during the term of his probation;

b. accepting wagers from other individuals during the term of his probation;

c. transmitting wagers during telephone calls with John Melilli on November 11 through 18, 1974;

d. receiving numbers betting information during telephone calls with John Melilli on November 11 through 19, 1974.

An evidentiary hearing was held by the district court on February 13, 1975. At that hearing, in addition to receiving testimony from Officer Reid, wiretap and expert evidence was also introduced to the following effect. In November, 1974 a wire interception of one Nancy Melilli's telephone was authorized, and tape recorded conversations and transcripts of these conversations were placed in evidence. During the period of surveillance commencing November 11, 1974, some 50 telephone calls were made from the Melilli telephone to the address where Iannece resided. ² F.B.I. agents identified the voices of Iannece and John Melilli. They interpreted the tape conversations as conversations involving betting, including the acceptance and transmission of wagers and the receipt of numbers betting information.

Iannece produced no evidence but argued only that he had been acquitted of state gambling charges by the Commonwealth. He also argued that if an individual "is not prosecuted or if he is exonerated by the City Courts, then the Court, during the probation really has no basis for saying that he did in fact violate his probation."

At the conclusion of the hearing, the district court, after making numerous findings of fact and conclusions of law, held that Iannece had violated the terms of his probation by conducting an illegal gambling business, by accepting and transmitting wagers, and by receiving betting information all in violation of the Penal Laws of Pennsylvania. Thereafter on March 4, 1975, Iannece was sentenced to four years imprisonment. ³ This appeal followed.

II.

At the outset of our discussion we think it necessary to emphasize those issues which we are not called upon to decide on this appeal. First and most important, despite the appellant's surface contentions, we are not faced here with a situation where the appellant's federal probation was revoked based wholly upon the same evidence and the same issues which resulted in his acquittal at state criminal proceedings. See, e. g., Standlee v. Rhay, 403 F.Supp. 1247 (E.D.Wash.1975) (Parole revocation); cf. United States v. Chambers, 429 F.2d 410 (3d Cir. 1970); United States v. Markovich, 348 F.2d 238 (2d Cir. 1965). Nor are we faced with the due process challenges of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Rather, the arguments made to us are substantially less compelling.

First, Iannece argues that the record is devoid of the necessary evidence to support the district court's holding that he was conducting an illegal gambling business which violated his condition of probation.

Alternatively he argues that ". . . the notion of collateral estoppel barred the lower court from hearing the testimony of (Police) Officer Robert Reid" (Appellant Br. p. 16) because Reid had testified against him in the State prosecution in which Iannece had been acquitted. His argument in this regard concludes with the contention that ". . . since the facts testified to and issues raised in appellant's state gambling trial were resolved in his favor by an acquittal, it was error for the lower court to consider the same evidence again at the revocation hearing of February 13, 1975." (Appellant's Br. p. 20).

For the reasons which are specified hereafter, we find both of these arguments to be without merit.

III.

Treating Iannece's arguments in reverse order we first analyze his collateral estoppel contention. That doctrine was defined in Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) to mean ". . . that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit." Ashe also teaches that:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."

397 U.S. at 444, 90 S.Ct. at 1194.

Even without consideration of other substantive barriers precluding collateral estoppel in the present setting, ⁴ it is clearly evident that based on this record Iannece has not established any basis to apply that principle here.

The record here is virtually bare insofar as it reflects the essentials of the state proceeding. It does not even identify the particular crime or crimes with which Iannece was charged by the Commonwealth of Pennsylvania. While it does reflect that Police Officer Reid had testified in the state criminal proceeding as well as at the federal revocation hearing, it does not reveal the particulars or content of Officer Reid's testimony in the state proceeding. Moreover, the record is completely silent as to any other testimony or evidence produced at that proceeding. In fact, had it not been for Reid's testimony at the revocation hearing that Iannece had been arrested by the state authorities and had been acquitted, we would have no evidence or knowledge whatsoever of any state criminal proceeding brought against Iannece. ⁵ It was therefore impossible for the district court, just as it is impossible for us, to ascertain with precision how, and on what evidence, the particular state issues were determined. Ashe v. Swenson, supra; cf. United States v. McKim, 509 F.2d 769, 775-776 (5th Cir. 1974).

Hence, even assuming that all other preconditions to the application of collateral estoppel had been met (see n.4 supra ), Iannece completely failed to sustain his burden of: (1) providing the court with an appropriate record of the state proceedings, and (2) demonstrating that the same issues and the same evidence were presented at both proceedings, and (3) establishing that a rational state jury could not have grounded its verdict of acquittal upon an issue or evidence other than that which he now seeks to foreclose. Ashe v. Swenson, supra. United States v. Feinberg, 383 F.2d 60, 71 (2d Cir. 1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968). It is evident, therefore, that the district court made no error in accepting and considering Reid's testimony.

However, even had the district court not considered Reid's testimony, the uncontradicted evidence independent of his testimony was overwhelming and...