United States v. Chiarizio, Crim. No. H-74-51.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtBLUMENFELD
Citation388 F. Supp. 858
PartiesUNITED STATES of America v. Michael CHIARIZIO et al.
Docket NumberCrim. No. H-74-51.
Decision Date21 January 1975

388 F. Supp. 858

Michael CHIARIZIO et al.

Crim. No. H-74-51.

United States District Court, D. Connecticut.

January 21, 1975.

388 F. Supp. 859
388 F. Supp. 860
388 F. Supp. 861
Peter C. Dorsey, U. S. Atty., Paul E. Coffey, Sp. Atty., Dept. of Justice, Hartford, Conn., for plaintiff

Maxwell Heiman, Bristol, Conn., Michael J. Daly, III, Waterbury, Conn., John P. McKeon, Hartford, Conn., F. Owen Eagan, and William P. Murray, Jr., West Hartford, Conn., Albert Genua, Jr., Hartford, Conn., Charles Sturtevant, Hartford, Conn., J. Patrick Dwyer, East Hartford Conn., S. Robert Verrillo, Hartford, Conn., John W. Daniels, Huntington, W. Va., Timothy G. Moynahan, Waterbury, Conn., Paul J. McQuillan, New Britain, Conn., James D. O'Connor, Hartford, Conn., for defendants.


BLUMENFELD, District Judge.

The twelve defendants in this case are under indictment for violation of 18 U. S.C. § 1955 (1970)1 and § 371 (1970). They have raised a number of challenges to the indictment and the wiretap evidence which was obtained pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. An evidentiary hearing having been held on certain elements of the defendants' motion to suppress and all briefs having been submitted, this matter is now ready for decision.

Motion to Dismiss the Indictment

As if following a checklist in a manual on defending § 1955 cases, the defendants have raised a series of challenges, most of which have been definitively discussed and rejected by either

388 F. Supp. 862
the Second Circuit or other Courts of Appeal. For that reason, most of the issues require little or no discussion

Thus, the statute is not unconstitutional because it adopts as an element of the offense the violation of state gambling laws. United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); Schneider v. United States, 459 F.2d 540 (8th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972); United States v. Aquino, 336 F.Supp. 737 (E.D.Mich.1972). Cf. United States v. Burton, 475 F.2d 469 (8th Cir.), cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L. Ed.2d 70 (1973). Also it was validly adopted pursuant to Congress' plenary power under the Commerce Clause and thus was not an unconstitutional infringement upon the powers of the states under the tenth amendment. United States v. Sacco, supra; United States v. Becker, 461 F.2d 230 (2d Cir. 1972), vacated on other grounds, 417 U. S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974); United States v. Harris, 460 F. 2d 1041 (5th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972). Nor is § 1955 unconstitutionally vague. United States v. Sacco, supra, 491 F.2d at 1001-1002. Cf. United States v. Meese, 479 F.2d 41, 43 (8th Cir. 1973); United States v. Hunter, 478 F.2d 1019, 1022 (7th Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 162, 38 L. Ed.2d 107 (1973); United States v. Becker, supra, 461 F.2d at 232.

The defendants also argue that §§ 1955 and 371 merge into one because both statutes require the concerted action of more than one person. This contention, based upon "Wharton's Rule," is also foreclosed under United States v. Becker, supra in which the Second Circuit stated:

"Appellants next argue that because the alleged substantive offense required the participation of five or more persons, a conspiracy count based upon the same illegal conduct was improper, under the doctrine that `Where concert is necessary to an offense, conspiracy does not lie.' United States v. Sager, 49 F.2d 725, 727 (2d Cir. 1931). United States v. Center Veal & Beef Co., 162 F.2d 766, 770 (2d Cir. 1947); United States v. Zeuli, 137 F.2d 845, 846 (2d Cir. 1943). The answer is that in this case an additional two persons, or seven in all, were named in the indictment as having engaged in the conspiracy, whereas the substantive offense required the participation of only five. It is a fundamental principle, too settled to require explication, that `the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.' Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). As we have recently reiterated, as long as the conspiratorial concert of action and the substantive offense underlying it are not coterminous and fewer participants are required for the commission of the substantive offense than are named as joining in a conspiracy to commit it, there is no infirmity in the conspiracy indictment. United States v. Benter, 457 F.2d 1174, 1178 (2d Cir. 1972)." 461 F.2d at 234.

In the instant case twelve persons were named as co-conspirators, seven more than are needed to support a conviction under § 1955. See United States v. Iannelli, 477 F.2d 999, 1002 (3d Cir. 1973), cert. granted, 417 U.S. 907, 94 S.Ct. 2602, 41 L.Ed.2d 211, 42 U.S.L.W. 3652 (U.S. May 28, 1974) (No. 73-64).

The defendants also advance a rather ingenious, but ultimately meritless, argument based upon the doctrine of pardon and abatement. The indictment in this case was issued on April 9, 1974, and charged the defendants with being continuously in violation of Conn.Gen. Stat.Ann. § 53-295 (1958) from March 1, 1973 through May 15, 1973.2 On

388 F. Supp. 863
June 7, 1973 as part of Pub.Act No. 73-455, § 53-295 was repealed. As a result, the defendants argue, under the doctrine of pardon and abatement, all proceedings under § 53-295 "which were not passed and closed, are thereby arrested as if the statute never existed." Defendants' Brief at 9. As § 1955 depends upon the violation of a state gambling statute, they continue, all prosecutions under § 1955 which depend upon § 53-295 must be abated

It is unnecessary to pass upon the defendants' basic argument that the repeal of a state gambling law subsequent to the commission of an offense under it would necessarily abate a federal prosecution under § 1955. Cf. United States v. Revel, 493 F.2d 1 (5th Cir. 1974) (federal, not state, statute of limitations applies under § 1955). This is because the doctrine of abatement and pardon has no application under the facts of this case. Section 53-295 was only technically repealed under Pub.Act No. 73-455 which was a comprehensive enactment of a model gambling law. It is quite clear that the offenses which were proscribed and relied upon by the government under § 53-295 remain illegal under Pub.Act No. 73-455, §§ 1(3), 2, 3(d), 5(d). See United States v. Romanello, Crim. No. H-203 (D.Conn., Sept. 14, 1972).

The defendants also claim that § 53-295 is unconstitutionally vague. In particular, they focus upon that part of the statute which provides that "any person who makes, records or registers any such wagers or bets, or buys or sells, or is concerned in buying or selling, any such pools . . .." (Emphasis added.) The language "is concerned," they contend, is unconstitutionally vague. In passing upon such a challenge it is necessary to remember that "the Constitution does not require impossible standards." A statute need only convey "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947); Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). When considered in the context of this statute which is detailed and specific with regard to the proscribed conduct, it is clear that the language which the defendant focuses upon is not unduly vague. State v. Inzitari, 6 Conn.Cir. 170, 269 A.2d 35 (1969). Furthermore, that language is no more ambiguous than that in § 1955 which this court and others have held to be specific enough to pass constitutional muster. Finally, it is doubtful that these defendants even have the standing to raise this particular vagueness claim, as the "is concerned" language is not included in that part of § 53-295 upon which the government is relying in this prosecution.3 In sum, this court agrees with the conclusion reached in United States v. Romanello, supra, slip op. at 15, with regard to the same vagueness issue: the claim is "meritless."

Finally, the defendants seek dismissal of the indictment on the basis that the grand jury which returned the indictment was unconstitutionally or illegally constituted. They advance two separate,

388 F. Supp. 864
somewhat contradictory, arguments. I shall consider each in turn

First, they argue that the indictment was returned by a special grand jury, impaneled pursuant to the provisions of 18 U.S.C. § 3331 (1970). That statute provides in relevant part:

"(a) In addition to such other grand juries as shall be called from time to time, each district court which is located in a judicial district containing more than four million inhabitants or in which the Attorney General, the Deputy Attorney General, or any designated, Assistant Attorney General, certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district shall order a special grand jury to be summoned at least once in each period of eighteen months unless another special grand jury is then serving."

The defendants find objectionable the fact that this statute seems to deprive the court of its inherent discretion to decide when and whether to convene a grand jury. By providing that the court "shall" order the summoning of a grand jury when one of the two preconditions is satisfied, Congress, the defendants urge, has usurped the inherent power of the judiciary and has thus violated the constitutional principle of separation of powers.

The government argues that the separation of powers issue need not be reached because § 3331(a) does not, in fact, mandate the creation of a special...

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