United States v. Costello, No. 481-484

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtWATERMAN, FRIENDLY and SMITH, Circuit
Citation352 F.2d 848
PartiesUNITED STATES of America, Appellee, v. Frank COSTELLO, James "Totto" Marchetti and Arthur Gjanci, Appellants. UNITED STATES of America, Appellee, v. Frank COSTELLO, Appellant. UNITED STATES of America, Appellee, v. James "Totto" MARCHETTI, Appellant. UNITED STATES of America, Appellee, v. Arthur GJANCI, Appellant.
Docket NumberDockets 29524-29527.,No. 481-484
Decision Date29 October 1965

352 F.2d 848 (1965)

UNITED STATES of America, Appellee,
v.
Frank COSTELLO, James "Totto" Marchetti and Arthur Gjanci, Appellants.

UNITED STATES of America, Appellee,
v.
Frank COSTELLO, Appellant.

UNITED STATES of America, Appellee,
v.
James "Totto" MARCHETTI, Appellant.

UNITED STATES of America, Appellee,
v.
Arthur GJANCI, Appellant.

Nos. 481-484, Dockets 29524-29527.

United States Court of Appeals Second Circuit.

Argued June 8, 1965.

Decided October 29, 1965.


352 F.2d 849

Philip R. Shiff, New Haven, Conn. (Adrian W. Maher, Bridgeport, Conn., on brief), for appellant Frank Costello.

Jacob D. Zeldes, Bridgeport, Conn. (Francis J. King, David Goldstein, Joseph S. Catalano, Bridgeport, Conn., on brief), for appellant Marchetti.

Carroll W. Brewster of Gumbart, Corbin, Tyler & Cooper, New Haven, Conn. (Kimberly B. Cheney, New Haven, Conn., on brief), for appellant Gjanci.

Jon O. Newman, U. S. Atty. (Howard R. Moskof, Asst. U. S. Atty., on brief), for appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.

These three appeals, along with United States v. Piccioli, 352 F.2d 856, and United States v. Markis, 352 F.2d 860, this day decided, stem from a raid carried out by Internal Revenue Service agents and state police in Bridgeport, Connecticut, on October 8, 1964. Appellants Frank Costello, James "Totto" Marchetti and Arthur Gjanci were tried together and convicted on all counts before Chief Judge Timbers and a jury under four indictments. Three two-count

352 F.2d 850
indictments similar in form charged each of them with violations of 26 U.S.C. § 7203 in that, being engaged in the business of accepting wagers or receiving them for one so engaged, they wilfully failed (1) to purchase the occupational wagering tax stamp required by 26 U.S.C. § 4411 and (2) to register as required by § 4412. The fourth indictment charged all three with conspiring to fail to purchase the occupational tax stamps. Costello and Marchetti received concurrent one-year prison sentences and $10,000 fines in the conspiracy case and under Count 1 of their individual indictments; the imposition of sentence was suspended and probation for two years was imposed under Count 2. Gjanci's sentences differed in that the fine was $2,500

Certain points are common to the three appeals and, to some extent, to the two others mentioned. After outlining the facts of this case, we shall deal first with these common points and then consider arguments peculiar to various appellants.

In the summer of 1964 Special Agent John Ripa of the I. R. S. was detailed to work in Bridgeport as an undercover agent, posing as a person wishing to make numbers and horse bets and later as a would-be bookmaker. He placed numerous bets with Gjanci and Marchetti at the Lafayette Diner or, in some instances with respect to Gjanci, at the Greek Coffee House. On October 2, he placed bets with Costello, paying with two marked $20 bills which were found in Costello's pocket on the latter's arrest. Earlier, on September 3, he had asked Gjanci if he could set up an arrangement to turn in bets and receive a commission. Gjanci said he would speak to Marchetti to arrange this, and also that he would talk to his "bosses — Totto and Frank" about letting Ripa place bets at a local variety store; Gjanci referred to Costello as the "big boss of Bridgeport." On September 9, Marchetti arranged for Ripa to "book on 50%" with "Tony," with settlement to be made with Marchetti. On several later instances Costello made inquiries and gave directions whence the jury could infer that he was indeed "a boss" — if not indeed "the boss" — in the enterprise. At trial Costello denied any involvement in the wagering business; Marchetti admitted accepting some bets from Ripa but denied others and also denied Costello's involvement; Gjanci did not testify.

I.

Appellants' most basic point concerns the constitutionality of the federal wagering tax. Recognizing that these provisions were sustained in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), appellants say their situation differs in two respects. One is that statements of the prosecutor and the judge demonstrated that the purpose of the Government's applying the statute against them was not to collect revenue, concededly the only available source of federal power, but to promote the enforcement of state laws against gambling; the other is that the enlargement of the self-incrimination clause of the Fifth Amendment to include federal compulsion of the admission of crime against the states, see Murphy v. Waterfront Comm'n, 378 U.S. 52, 53 n. 1, 77-78, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), overruling United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931), and recent emphasis that the clause embraces all statements save those that "cannot possibly" tend to incriminate, see Malloy v. Hogan, 378 U.S. 1, 12, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), place the Kahriger holding on self-incrimination in question.1

352 F.2d 851

With respect to the first contention, apart from questions as to what effect on constitutionality statements by prosecutors and judges can have, nothing in the present record goes materially beyond what the Supreme Court characterized in Kahriger as "suggestions in the debates that Congress sought to hinder, if not prevent the type of gambling taxed." 345 U.S. at 27 n. 3, 73 S.Ct. at 512, 97 L.Ed. 754. If "the verbal cellophane of a revenue measure," 345 U.S. at 38, 73 S.Ct. at 518 (dissenting opinion of Mr. Justice Frankfurter), was sufficiently opaque for a majority of the Supreme Court twelve years ago, it remains so for us now. Whether the judge impermissibly allowed considerations unrelated to the nonpayment of the tax to enter into sentence, a claim raised only by Piccioli, is a different problem which we will discuss in the opinion in his case.

The contention with respect to the self-incrimination clause would be more serious if United States v. Kahriger stood alone, since whatever the stated basis for decision, the result followed so logically from the now-overruled Murdock doctrine. However, the Court again considered the Fifth Amendment objection in Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), which arose in the District of Columbia where wagering was a crime by federal law. The Court disposed of the argument on the basis that "If petitioner desires to engage in an unlawful business, he does so only on his own volition. The fact that he may elect to pay the tax and make the prescribed disclosures required by the Act is a matter of his choice. There is nothing compulsory about it, and, consequently, there is nothing violative of the Fifth Amendment." 348 U.S. at 422, 75 S.Ct. at 418. If Congress can constitutionally require, as a condition to gambling, a registration that would show an intention to engage in a business prohibited by a federal law, we can think of no reason why it should not have the same power to require registration that would give notice of an intention to engage in activity made illegal by the laws of a state; and the probability of incrimination for future or even past acts, however great, is irrelevant, on the Court's stated theory that the registration cannot be called compulsory. It is true that both Kahriger and Lewis were decided over vigorous dissents by Justices Black and Douglas on the Fifth Amendment point. But we find no subsequent opinion reflecting on the authority or reasoning of these cases and, at least under such circumstances, it is no proper function of ours to speculate on whether the dissent of yesterday may become the decision of tomorrow. Cf. United States v. Zizzo, 338 F.2d 577, 580-581 (7 Cir. 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435 (1965); United States v. Cefalu, 338 F.2d 582 (7 Cir. 1964). We are therefore not required to consider other arguments on which the Government might rely, such as the lack of any claim of the privilege at an earlier stage, see United States v. Sullivan, 274 U.S. 259, 263-264, 47 S.Ct. 607, 71 L.Ed. 1037 (1927); United States v. Kahriger, supra, 345 U.S. at 32, 73 S.Ct. 510, and the required records doctrine, see Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948); Meltzer, Required Records, the McCarran Act and the Privilege against Self-Incrimination, 18 U.Chi.L. Rev. 687 (1951).

II.

Appellants contend their trial was rendered unfair by publicity, much of it emanating from the Government.

352 F.2d 852

The indictments against appellants and others were returned in New Haven on October 6, 1964; bail was fixed but the indictments remained impounded, F.R. Cr.P. 6(e), until October 8 at 2:36 P.M. A press release distributed earlier by the Government to newsmen announced in part that at 1:20 P.M.: "In a spectacular thrust at the extensive gambling activities in this area, 75 special agents of the Intelligence Division, with the aid of 50 State Policemen, swooped down on some 40 establishments, arresting approximately 45 persons engaged in such gambling activities as policy numbers and betting on horse races and other sports events, in violation of the Federal wagering tax laws. * * * The special agents were successful in breaking up a large, syndicated operation including some of the most important higher-ups in the gambling syndicate." The release...

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48 practice notes
  • Silbert v. United States, Misc. No. 564
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 19, 1968
    ...wagering tax sections, under which he was indicted, violated his Fifth Amendment privilege against self-incrimination. The Second Circuit, 352 F.2d 848 (1965), rejected this contention and affirmed the conviction of Marchetti on the authority of United States v. Kahriger, 345 U.S. 22, 73 S.......
  • U.S. v. Angelilli, Nos. 1039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 4, 1981
    ...v. Papadakis, 510 F.2d 287, 294-95 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Costello, 352 F.2d 848, 854 (2d Cir. 1965), rev'd on other grounds, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); United States v. Bates, 600 F.2d 505 (5th Ci......
  • Marchetti v. United States, No. 2
    • United States
    • United States Supreme Court
    • January 29, 1968
    ...occupational tax violated his Fifth Amendment privilege against self-incrimination. The Court of Appeals for the Second Circuit affirmed, 352 F.2d 848, on the authority of United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, and Lewis v. United States, 348 U.S. 419, 75 S.Ct. ......
  • United States v. Frank, No. 578-581
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 25, 1974
    ...v. Annunziato, 293 F. 2d 373, 376-377 (2 Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961); United States v. Costello, 352 F.2d 848, 853-855 (2 Cir. 1965), rev'd on other grounds sub nom. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); McCor......
  • Request a trial to view additional results
48 cases
  • Silbert v. United States, Misc. No. 564
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 19, 1968
    ...wagering tax sections, under which he was indicted, violated his Fifth Amendment privilege against self-incrimination. The Second Circuit, 352 F.2d 848 (1965), rejected this contention and affirmed the conviction of Marchetti on the authority of United States v. Kahriger, 345 U.S. 22, 73 S.......
  • U.S. v. Angelilli, Nos. 1039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 4, 1981
    ...v. Papadakis, 510 F.2d 287, 294-95 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Costello, 352 F.2d 848, 854 (2d Cir. 1965), rev'd on other grounds, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); United States v. Bates, 600 F.2d 505 (5th Ci......
  • Marchetti v. United States, No. 2
    • United States
    • United States Supreme Court
    • January 29, 1968
    ...occupational tax violated his Fifth Amendment privilege against self-incrimination. The Court of Appeals for the Second Circuit affirmed, 352 F.2d 848, on the authority of United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, and Lewis v. United States, 348 U.S. 419, 75 S.Ct. ......
  • United States v. Frank, No. 578-581
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 25, 1974
    ...v. Annunziato, 293 F. 2d 373, 376-377 (2 Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961); United States v. Costello, 352 F.2d 848, 853-855 (2 Cir. 1965), rev'd on other grounds sub nom. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); McCor......
  • Request a trial to view additional results

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