United States v. Garrison

Decision Date04 August 1972
Docket NumberCrim. A. No. 71-542.
Citation348 F. Supp. 1112
PartiesUNITED STATES of America v. Jim GARRISON et al.
CourtU.S. District Court — Eastern District of Louisiana

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Gerald J. Gallinghouse, U. S. Atty., East. Dist. of Louisiana, John Wall, Dept. of Justice, for the Government.

Louis B. Merhige, New Orleans, La., F. Lee Bailey, Mark Kadish, Boston, Mass., for Jim Garrison.

Milton P. Masinter, New Orleans, La., for Frederick A. Soule, Sr. and Robert N. Frey.

Guy Johnson and Philip J. Foto, New Orleans, La., for Louis M. Boasberg.

Lee C. Grevemberg, New Orleans, La., for Harby S. Marks, Jr.

Virgil M. Wheeler, Jr., New Orleans, La., for John Aruns Callery.

F. Irving Dymond, New Orleans, La., for John J. Elms, Jr.

Cecil M. Burglass and Lawrence L. Lagarde, Jr., New Orleans, La., for Lawrence L. Lagarde, Sr.

Louis C. LaCour and Gerald H. Schreiber, New Orleans, La., for Robert Nims.

Milton E. Brener, New Orleans, La., for John Elmo Pierce.

CHRISTENBERRY, District Judge.

This matter is before the court on defendants' numerous motions to dismiss, for severance, to suppress evidence, for discovery, and for other pretrial relief. On May 17, 1972, oral arguments were heard on some of these motions but with most motions being submitted by counsel on their extensive and thorough legal memoranda. The court herewith, for the reasons assigned below, rules on all currently pending motions, with all motions denied except as expressly granted.1 The motions filed by most of the defendants asking that they be allowed to adopt the motions of their codefendants and file subsequent motions are granted and, accordingly, each motion or group of motions will be treated where applicable as though brought by all ten codefendants.

Foreword

The 14-page, one-count indictment in this case, which was returned by a special grand jury in this district on December 3, 1971, charges the ten defendants with conspiracy to obstruct the enforcement of the criminal laws of the state of Louisiana in violation of 18 U. S.C. § 1511 (1970). Three of the defendants were, at the time of their arrest on June 30, 1971, state or local law enforcement officials, viz., Garrison, the District Attorney for the Parish of Orleans, and Soule and Frey, employees of the New Orleans Police Department with the ranks of captain and sergeant, respectively. Soule was assigned to Garrison's investigative staff and Frey was commander of the vice squad. The other seven defendants' relation to this case is through their ownership, direction, interest in, or employment by allegedly illegal gambling businesses.

I. MOTIONS TO DISMISS THE INDICTMENT Constitutionality of 18 U.S.C. § 1511

The defendants have moved to dismiss the indictment on the ground that the statute on which it is based, Title VIII, § 802(a) (codified at 18 U.S.C. § 1511 (1970)) of the Organized Crime Control Act of 1970 (P.L. 91-452), 84 Stat. 936, is unconstitutional. Section 1511 provides in pertinent part:

§ 1511. Obstruction of State or local law enforcement
(a) It shall be unlawful for two or more persons to conspire to obstruct the enforcement of the criminal laws of a State or political subdivision thereof, with the intent to facilitate an illegal gambling business if—
(1) one or more of such persons does any act to effect the object of such a conspiracy;
(2) one or more of such persons is an official or employee, elected, appointed, or otherwise, of such State or political subdivision; and
(3) one or more of such persons conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business.
(b) As used in this section
(1) "illegal gambling business" means a gambling business which— (i) is a violation of the law of a State or political subdivision in which it is conducted;
(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
(2) "gambling" includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels, or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.
(3) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
(c) * * *
(d) * * *

As reasons for the provision's infirmity, defendants have variously asserted that section 1511 exceeds the powers granted to Congress under the commerce clause of the Constitution, that it infringes upon powers reserved to the states by the Tenth Amendment, that it denies due process and equal protection guaranteed by the Fifth and Fourteenth Amendments, and that it is fatally vague, indefinite, and overbroad, in violation of the Fifth and Sixth Amendments. These contentions have been rejected by this and other federal courts that have upheld a similar provision of the same act, namely, Title VIII § 803(a), (codified at 18 U.S.C. § 1955 (1970)) of the Organized Crime Control Act of 1970 (P.L. 91-452), 84 Stat. 937.2 United States v. Riehl, 460 F.2d 454 (3d Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972); United States v. Palmer, 465 F.2d 697 (6th Cir. 1972); United States v. Bally Manufacturing Corp., 345 F.Supp. 410 (E.D.La.1972); United States v. Iannelli, 339 F.Supp. 171, 180 (W.D.Pa.1972); United States v. Sacco, 337 F.Supp. 521 (N.D.Cal.1972); United States v. Aquino, 336 F.Supp. 737 (E.D.Mich.1972); United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Harris, 332 F.Supp. 315 (N.D. Tex.1971). Because this court concurs in both the logic and result reached in these cases, including Riehl, supra, which also expressly upheld the constitutionality of the provision under attack here, I find section 1511 constitutional. Moreover, a brief examination of the defendants' contentions and the applicable jurisprudence will reveal that this is the only decision the court could properly reach.

The defendants contend primarily that Congress, in enacting section 1511, exceeded the powers granted to it under the commerce clause of the Constitution, U.S.Const. art. 1, § 8, cl. 3, and infringed upon the powers reserved to the states by the Tenth Amendment. This is so, they argue, because section 801 of Title VIII, in which "Congress finds that illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof," relieves the government of the necessity of alleging and proving the effect on interstate commerce to establish a basis for federal jurisdiction. That this is the effect of section 801 cannot be doubted, but the defendants' conclusion that such a jurisdictional finding is invalid is incorrect. The Constitution expressly grants Congress plenary power over interstate commerce, U.S.Const. art. 1, § 8, cl. 18, and the Supreme Court has repeatedly held that Congress may exercise its power even over an intrastate class of activities that has "a substantial effect on interstate commerce." United States v. Darby, 312 U.S. 100, 119, 61 S.Ct. 451, 459, 85 L.Ed. 609 (1941). See, e. g., Maryland v. Wirtz, 392 U.S. 183, 189, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 259, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Wickard v. Filburn, 317 U. S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Furthermore, it is well-settled that Congress may declare that a class of intrastate activities affects commerce, thereby obviating the necessity of proof of the effect, and, when Congress has chosen to do so, "the only function of courts in passing on the validity of such legislation is to determine whether the particular activity regulated or prohibited is within the reach of the federal power." Darby, supra, 312 U.S. at 120-121, 61 S.Ct. at 460. Consistently, more recent Supreme Court decisions have emphasized that "where we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Maryland v. Wirtz, supra, 392 U. S. at 190, 88 S.Ct. at 2020, quoting Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).

Thus, to determine if section 1511 represents a valid exercise of Congress's power over interstate commerce, the sole inquiry this court may make is whether Congress had a rational basis for finding that illegal gambling businesses affect interstate commerce. The defendants contend that Congress must list its findings of effect on interstate commerce for its conclusion to be valid and, since there is no such proof in Title VIII of the Organized Crime Control Act of 1970, that this court is precluded from finding any rational basis.3 But in Perez v. United States, 402 U.S. 146, 156-157, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971), a case that upheld a similar congressional finding of effect on interstate commerce in Title II of the Consumer Credit Protection Act, 82 Stat. 159 (codified at 18 U.S.C.A. § 891 (Supp.1972)), the Supreme Court, after examining the situation as presented to Congress, appropriately stated:

"We do so not to infer that Congress need make particularized findings in order to legislate. We relate the history of the Act in detail to answer the impassioned plea of petitioner that all that is involved in loan sharking is a traditionally local activity." (Emphasis added.)

Although Congress did not state its findings, as, indeed, it was clearly not required to do under Perez, I find that the legislative history of section 1511 provides ample basis for the conclusion that illegal gambling affects interstate commerce.4 The estimates of the scope of illegal gambling in the United States range from a low of $20...

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