United States of America v. Rizzo

Decision Date17 November 1969
Docket NumberNo. 17149-17151.,17149-17151.
Citation418 F.2d 71
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. Tommy RIZZO, Frank Tornabene and Sam Elia, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit


Jerome Rotenberg, John Powers Crowley, Edward J. Calihan, Jr., Chicago, Ill., for defendants-appellants.

Thomas A. Foran, U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Michael B. Nash, Eugene Robinson, Asst. U. S. Attys., Chicago, Ill., of counsel.

Before SWYGERT and FAIRCHILD, Circuit Judges, and MORGAN, District Judge.1

Rehearings Denied in No. 17150, 17151 November 17, 1969.

ROBERT D. MORGAN, District Judge.

A jury found defendants guilty upon all counts of a six-count indictment. Each has appealed the judgment entered thereon, committing him to the custody of the Attorney General of the United States for a period of five years on each count.2 All sentences are concurrent.

We first consider defendants' challenge to the indictment.3

Count One, grounded upon 18 U.S.C. § 371, alleged that the defendants and one Eileen Curry conspired together to use the United States mails with the intent and purpose of promoting and carrying on an unlawful business enterprise involving prostitution offenses in violation of Illinois Revised Statutes, c. 38, Sections 11-14 through 11-19, in violation of Section 1952 of the Criminal Code, 18 U.S.C.4 The indictment contains five substantive counts. Count Two of which is herein summarized as representative of all.5 That count alleged that the defendants, on or about April 27, 1964, at Chicago, Illinois, unlawfully used the United States mails between Chicago, Illinois, and Charleston, South Carolina, with the intent to promote and carry on an unlawful business enterprise involving prostitution offenses, in violation of Illinois Revised Statutes, c. 38, Sections 11-14 through 11-19, and that they thereafter performed and attempted to perform acts to further such unlawful activity in violation of 18 U.S.C. § 1952.6

Defendants contend that the indictment is insufficient because it does not set forth the elements of the offenses defined in the several Illinois Statutes related to prostitution, and that the indictment is duplicitous because it alleges in each count an attempt to violate seven different sections of the Illinois Criminal Code, without specifying which of such sections defendants are alleged to have violated.

The argument is specious. The requirements of Rule 7(c), F.R.Crim.P., are satisfied if the indictment sufficiently apprises a defendant of the nature of the charge which he must meet and if its allegations are sufficiently specific to stand as a bar to further prosecution for the same offense. Hewitt v. United States, 8 Cir., 110 F. 2d 1, 5-6, cert. denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409.

The gravamen of the charge under both Sections 371 and 1952 is the violation of federal law. Cf. United States v. Nardello, 393 U.S. 286, 293-296, 89 S.Ct. 534, 21 L.Ed.2d 487. As it relates to the substantive counts, the offense is the use of an interstate facility, with the intent to promote or further an unlawful activity in violation of state law, and the performance of some act designed to promote or further that illegal purpose. United States v. Bergland, 7 Cir., 318 F.2d 159, 161, cert. denied, sub nom. Cantrell v. United States, 375 U.S. 861, 84 S.Ct. 129, 11 L.Ed.2d 88; McIntosh v. United States, 8 Cir., 385 F.2d 274, 276, 277-278; Collins v. United States, 10 Cir., 383 F.2d 296, 300; cf. United States v. Nardello, supra. Reference to state law is necessary only to identify the type of unlawful activity in which the defendants intended to engage. McIntosh v. United States, supra, 385 F.2d at 276; Collins v. United States, supra.

It is not necessary to allege the elements of the state substantive offense intended to be committed, cf. United States v. Nardello, supra, or that the unlawful objective intended was accomplished. McIntosh v. United States, supra; cf. United States v. Bergland, supra.

The duplicity argument must likewise fail. Defendants are not charged with the commission of the substantive offenses under state law. Each count charges a single federal offense, and it is immaterial whether the unlawful enterprise intended, if consummated, would constitute a violation of one or a dozen state statutes. The allegation as to state law only identifies as unlawful the enterprise which the use of interstate facilities was designed to promote.

Defendants' reliance upon United States v. Donovan, 7 Cir., 339 F.2d 404, and Wright v. United States, 6 Cir., 243 F.2d 546, is misplaced. In Donovan, the indictment alleged two substantive charges in the disjunctive, 339 F.2d at 407-408. The indictment in Wright merely referred to the penal statute by section number, without particularizing which of several offenses defined by the statute the defendant was alleged to have committed. 243 F.2d at 548. By contrast here, the charge is explicitly stated. The multiple-statutory reference merely delineates the intent element of the substantive offense charged.

Other contentions of error by the defendants relate to the conduct of the trial itself and to the factual background of the offenses which the evidence tended to prove.

The evidence, taken in the light most favorable to the government, tended to prove the following.

In the early part of the year 1964, Curry operated a house of prostitution at 334 West Menomonee Street, in Chicago, Illinois. In addition to Curry, as "madam" of the house, three women, including one Alma Smith, were residents of the house and there engaged in prostitution. A man by the name of Zuckerman was the financial backer of the Menomonee Street enterprise.

In February, 1964, the Menomonee operation was terminated after a raid on the house by Chicago police. Later, Zuckerman and defendant Tornabene came to the house and talked in the hallway with Curry. After they left, Curry told Alma Smith that Zuckerman was out and that she had new partners coming in to the prostitution operation.

On the day following that meeting, a man by the name of Miller, a former patron of the house, came to the Menomonee address and offered to rent Curry space for the operation of a house of prostitution in a building owned by him and his brother at 1847 North Cleveland Avenue in Chicago. On the same day, Zuckerman, Curry and Alma Smith visited the Cleveland Avenue building, at which time Curry gave Miller several hundred dollars as a deposit on the rent for the building. Immediately thereafter, Curry and the prostitutes who had been working at the Menomonee house moved into the Cleveland Avenue building.

Upon moving into the Cleveland Avenue building, Curry told the prostitutes that they would have to pay to her fifty per cent of their earnings and also $10.00 per night for room rent. That split contrasted to the previous arrangement under which a prostitute retained 60% of her earnings and paid 40% of her earnings to the madam who operated the house.

A few days after moving into the Cleveland Avenue building, the defendant Tornabene came to the building. At that time he had a conversation with Alma Smith and left. He was not there as a patron. After he had left, Curry told Alma Smith that Tornabene was one of her new partners. Several days later the defendants Rizzo and Elia visited the building. Elia installed a bar on the second floor. Subsequently, the defendants, Elia and Rizzo and Robert Smith, had a conversation with Curry, in which it was agreed that Robert Smith was to be paid $100 for his services to the house, which included his operation of an automobile owned by Elia for the transportation of prostitution patrons to and from the house. The prostitutes began working in the house four days after Curry accepted the premises for occupancy. The original rental agreement provided for a daily rent of $50.

During the first five days of operation at Cleveland Avenue, Alma Smith tabulated the daily earnings of the prostitutes and collected the madam's share for her. Later Curry told the prostitutes to check each day with Elia. Thereafter, Elia met each of the prostitutes in the barroom at the end of the day and collected the appropriate percentage of their receipts.

In early March, 1964, defendants Rizzo and Elia brought to the Cleveland Avenue building a box of file cards which they told Curry were the names of potential customers for the house of prostitution. Rizzo represented that he had paid $6,000 for the card index file, and that Curry would pay $2,000 of that cost and the other partners the balance of $4,000.

Using the card index file, small identification cards (sometimes referred to in the testimony as credit cards) were prepared for many of the names contained in the file. Alma Smith testified that Rizzo, Elia, Curry and the resident prostitutes, including herself, prepared such cards for mailing. Curry typed the address of the building on the cards and enclosed a note therewith. The cards were then sealed in envelopes which were addressed and stamped for mailing and were taken from the house for mailing by Rizzo and Elia. Smith testified that Tornabene was present during a part of the time when such cards were being prepared.

Alma Smith further testified that Rizzo, Elia and Tornabene were at the house daily and that they were not patrons or customers of the house of prostitution.

In March, 1964, a dispute arose as to the amount of rental to be paid for the Cleveland Avenue building, when the owners of the building stated that they were going to raise the rent to $75 or $100 a day. The testimony indicates that this discussion was held between Curry, Rizzo, Elia and the Miller brothers. On the day following that discussion, Curry told Alma Smith that she would have to call Tornabene about the rent. Curry placed a telephone...

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