United States v. Barnes

• Decision Date: 07 October 1967
• Docket Number: No. 17181.,17181.
• Citation: 383 F.2d 287
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J. F. BARNES, James Tubb Washer and Robert Carney, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

383 F.2d 287 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. J. F. BARNES, James Tubb Washer and Robert Carney, Defendants-Appellants.

No. 17181.

United States Court of Appeals Sixth Circuit.

October 7, 1967.

John J. Hooker, Sr., and Harris A. Gilbert, Nashville, Tenn. (Jack Norman, Sr., Harry H. Chitwood, John J. Hooker, Sr., Harris A. Gilbert, Nashville, Tenn., on the brief), for appellants.

Gilbert S. Merritt, Jr., U. S. Atty., Nashville, Tenn. (Gilbert S. Merritt, Jr., U. S. Atty., Lyman R. Patterson, Alfred H. Knitht, III, Asst. U. S. Attys., Nashville, Tenn., on the brief), for appellee.

Before O'SULLIVAN, EDWARDS and McCREE, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Defendants-appellants, J. F. Barnes, James Tubb Washer and Robert Carney, were, as partners, the proprietors of a Nashville, Tennessee, gambling establishment known as the Uptown Dinner Club. This enterprise was conducted for years in violation of Tennessee's antigambling laws, Tenn.Code Ann. Section 39-2032, but seemingly flourished unhampered by prosecution until the federal government indicted the coproprietors under the so-called Interstate Travel Act, 18 U.S.C.A. Section 1952.¹ The misconduct charged in the indictment consisted of entering into a conspiracy (18 U.S.C. Section 371) to use, and causing to be used facilities of interstate commerce — common carriers and the mails — to carry on and promote the operation of the Uptown gambling establishment; the "overt acts" cited by the Government as establishing the conspiracy and the charged substantive violations of the Travel Act were: (a) purchasing various quantities of dice and chips from Chicago and Cincinnnati concerns and having them shipped to Nashville by express, and (b) cashing checks drawn on out-of-state banks and causing a Nashville bank to use the mails to deliver them, for collection, to the out-state drawee banks.² By jury verdict, returned November 23, 1965, all defendants were convicted under various counts of the indictment. Their appeal is now before us.

We discuss the claims of error as follows:

I. Convictions of Washer and Carney on conspiracy and substantive counts.

The first count of the indictment charged the defendants with conspiring, from about October 1, 1961, to December 31, 1964, to commit the substantive offenses detailed in counts two through seventeen. Motions of appellants Washer and Carney for judgments of acquittal on all counts were denied. The jury convicted the three defendants on the conspiracy count, the substantive counts relating to the purchase of dice and on two of the counts involving the cashing of checks; it acquitted all defendants on the counts involving the purchase of chips and of three of five counts involving the cashing of checks. The reason for this selectivity by the jury does not readily appear unless it be that they considered chips less identifiable with gambling than dice and because it was not clear whether three of the checks were cashed to cover gambling losses. We are of the view that the motions of Washer and Carney should have been granted.

a. Purchase of chips and dice.

None of the defendants took the stand or offered any proofs. The government's evidence established that over the period in question, and as far back as 1952, the defendants, as partners, carried on a gambling establishment in violation of Tennessee law. Testimony as to the method of the Uptown Club's operation was given by various of its former employees, all local residents in the Nashville area. They agreed that Barnes was the active manager of the business, but that Washer and Carney were in and out of the club and took over for Barnes in his absence; Carney also had an apartment upstairs of the club where he stayed on occasion.

It was further established that the managing partner, Barnes, had on various dates in 1964 purchased quantities of dice and chips from business houses in Chicago and Cincinnati. But there was no evidence that Carney or Washer had anything to do with, or had any knowledge of, Barnes' outstate purchases of these items. Representatives of the Chicago and Cincinnati firms testified that all the orders for the gambling parpahernalia were placed with them by Barnes, that the shipments were made to Barnes via Railway Express, and that their accounts were paid by him; they claimed they did not know his partners, Washer and Carney.

There was no evidence that a practice of outstate purchasing had existed prior to February 29, 1964, the first such purchase cited in the indictment. And although a large number of dice and chips were acquired subsequently in 1964, there was no evidence that the involved shipments made up the club's supply of these items. There was nothing to tell whether some of them were resold at retail or otherwise or were taken as souvenirs by the patrons of the club. There was no evidence of any need for Barnes to go out of Tennessee to purchase dice and chips, and it is a reasonable assumption that the state of Tennessee has an ample supply of such devices for sale.

Although the government apparently had access to the books and other records of the partnership, with which Washer and Carney could be assumed to have been familiar, none that were introduced disclosed the interstate character of any shipments of dice or chips. Partnership income tax returns of the Uptown Club (prepared by an accountant and signed only by Barnes) for the years 1963 and 1964 were introduced, and showed the 1963 net income of the club to be $164,816.00, each partner's share being $55,000.00; in 1964 the share of each partner was approximately $16,000.00. But these returns, while giving an impression of the size of the operation, again, provided no proof as to the alleged use of interstate facilities by Carney and Washer, or knowledge or expectation by them of Barnes' outstate purchases.

b. Cashing of Checks.

The government charged that the defendants were guilty of violating the Travel Act, and conspiring to violate it, by cashing patrons' checks, drawn on outstate banks, and having the First American National Bank of Nashville use the mails to effectuate collections from the drawee banks. The checks involved in the two counts upon which convictions were obtained totaled $250.00. We assume that the evidence introduced in this respect also contributed to the conviction of the defendants on the conspiracy charge.

Patrons of the Uptown Club from time to time cashed checks at the club. Club employees stated, however, that before any check could be accepted, it had to have the approval of one of the three partners. Although there was testimony that Washer and Carney did on occasion handle customers' checks, there was no evidence that either of them had approved or cashed the particular checks cited in the indictment, or any other outstate checks; nor was there any evidence that either of them delivered any such checks to the Nashville bank for collection. Only Barnes' name appears on them, as an endorser, and it may be assumed that he was the party who cashed them.

The five transactions involving checks were confined to the month of November, 1964. There was no testimony as to the approximate percentage of patrons frequenting the club who resided outside the state of Tennessee and hence might be expected to cover gambling losses with checks drawn on out of state banks. It was stipulated that appellants Washer and Barnes had for some years maintained a joint savings account at the First American National Bank at Nashville to facilitate the cashing of checks brought there from the Uptown Club; that any checks returned for insufficient funds were to be charged against the account. It was also stipulated, however, that there had "been nothing charged against it."

c. Discussion of evidence.

We do not believe, considering the above, that the government met its burden of offering evidence from which a jury could find beyond a reasonable doubt that Carney and Washer conspired with Barnes, or were either principals or aiders and abettors with him in his purchasing gambling paraphernalia from outstate sources, or in employing interstate facilities to cash the checks drawn on out of state banks.

It is apparent, of course that all of the defendants were active partners in carrying on an enterprise which violated the criminal statutes of Tennessee, but such criminal conduct was but necessary background to the federal offenses for which they were tried. Federal crimes were what the government had to establish.

In its attempt to support the conviction on the conspiracy count the government says to us that an agreement to use interstate facilities need not be overt, but may be inferred from circumstantial evidence. The government points out that the defendants had been closely associated with each other in the gambling business for years, and assert that it would be naive to suppose that Washer and Carney did not know of, and had not agreed to, Barnes' use of interstate facilities in connection with the enterprise; it insists that in a business on the scale of the Uptown Club, it was inherently improbable that interstate facilities would not be used to acquire supplies and to cash checks. This approach is also used by the government in asking affirmance of convictions on the substantive counts as well:

"The defendants\' argument that there was insufficient evidence to convict defendants Washer and Carney on the substantive counts of the indictment overlooks the basic fact of the case; all of the defendants were partners in the conduct of a gambling business in violation of state law and in the operation of which interstate facilities were used. Theirs was not only a partnership in business; it was a partnership in crime, and defendants Washer and Carney were not aiders and abettors, as contended by defendants, but co-conspirators." (Emphasis supplied)

We may assume that if the purchase of supplies through interstate...