United States v. Lazarus

• Decision Date: 18 June 1970
• Docket Number: No. 23290.,23290.
• Citation: 425 F.2d 638
• Parties: UNITED STATES of America, Appellee, v. Ruby LAZARUS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.2d 638 (1970)

UNITED STATES of America, Appellee, v. Ruby LAZARUS, Appellant.

No. 23290.

United States Court of Appeals, Ninth Circuit.

April 16, 1970.

Rehearing Denied June 18, 1970.

E. David Rosen (argued), Miami, Fla., Thomas F. Call, Los Angeles, Cal., for appellant.

Gerald F. Uelmen (argued), Asst. U. S. Atty., David R. Nissen, Asst. U. S. Atty., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for appellee.

Before CARTER and HUFSTEDLER, Circuit Judges, and THOMPSON,^* District Judge.

JAMES M. CARTER, Circuit Judge:

Lazarus appeals from his conviction upon three out of seven counts of perjury under 18 U.S.C. § 1621, based on his testimony before a grand jury. He raises four questions: Did the district court err, (1) in denying his motion for a mistrial based upon a Government witness' testimony linking Lazarus to the Mafia, (2) in admitting portions of transcript of the hearings before the grand jury in which Lazarus had asserted his privilege against self-incrimination, (3) in admitting bookmaking documents seized from a person other than Lazarus, and (4) in denying his motion for judgment of acquittal?

In 1966 a federal grand jury began an investigation of syndicated gambling activities after receiving information that a meeting of some of the members of the syndicate had been held at Palm Springs and that telephones were used during the meeting to transmit gambling information across state lines. The investigation was an inquiry into possible violations of federal laws concerning interstate transmission of gambling information, 18 U.S.C. § 1084, interstate travel in aid of racketeering enterprises, 18 U.S.C. § 1952, and of further possible violations of the Federal Communications Act and the Internal Revenue Code.

Lazarus was called before the grand jury on December 14, 1966. He refused to respond to any questions, invoking his Fifth Amendment privilege. He was again summoned to testify on March 9, 1967, and he again invoked his privilege and refused to testify. The Government thereupon obtained an order compelling Lazarus to testify pursuant to the immunity provisions of the Federal Communications Act, 47 U.S.C. § 409(l).

On March 10, 1967, he was called to appear before the grand jury to answer questions about his association with the other alleged participants at the Palm Springs meeting, about his own activities there, and about his knowledge of telephone calls from Palm Springs to Multiple Sports Service and to the Prokos brothers in Miami, Florida. Although he knew that he could no longer rely on the privilege in view of the immunity order, he declined to answer all questions put to him. The district court ordered him to answer, Lazarus refused, and the court found him in contempt for which he was committed to custody until he purged himself of contempt.¹ After seven months in custody, Lazarus requested and was granted an appearance to testify before the grand jury on October 18, 1967. It is his testimony on October 18, 1967, that is the subject of his prosecution for perjury.

Lazarus admitted before the grand jury that he visited the residence in Palm Springs for five or six days and that Elliott Paul Price, Tony Salerno, Jerry Zarowitz, Vincent Alo, and two women were also present during that time. The subject of Count One of the indictment was his testimony that he did not use the telephones in the Palm Springs house and that he did not see anyone else do so. The subject of Counts Four and Seven was his testimony that Mickey Zion was the only bookmaker with whom he ever placed a bet and that he never placed bets at bookmaker's odds with the Prokos brothers in Miami. The jury returned guilty verdicts on Counts One, Four and Seven.

I The Denial of Motion for a Mistrial

The Government's first witness was a former United States Attorney who, during his Government service, had been in charge of the Special Prosecutions Division, engaged in prosecuting cases in the general field of organized crime. He was called by the Government in order to establish the materiality to the grand jury investigation of Lazarus' testimony. The court instructed the jury that the testimony was not received to prove the truth of the facts contained therein but to show the nature of the investigation and what prompted it.

In response to questions about the information he had relayed to the grand jury and upon which its investigation was partially based, the witness stated:

"We had information that in Palms Springs, California, in October 1965 there was a meeting at a certain residence there, which involved people who were reputedly very high up in the Mafia organized crime syndicate in this country.

"* * *

"We had information that the phones in this residence had been used by certain individuals and that the telephones were used to make calls across State lines to other parts of the United States, in connection with gambling activities.

"We also heard — had information that a dispute had arisen among certain members of an alleged gambling syndicate, and that one of the purposes of the meeting at Palm Springs was to resolve that dispute.

"* * *

"We heard that there was present Elliott Paul Price, Tony Salerno, Jerry Zarowitz, Vincent Alo, also known as Jimmy Blue Eyes, Ruby Lazarus and two young women who were reputed to be girl friends of two of the people I have named.

"* * *

"Elliott Paul Price, we had information he was involved on a large scale in gambling activities, not only interstate in the country but also in Canada and in the Montreal area. We had information he was involved in a bookmaking operation in and around Boston.

"We also knew that he was under indictment for Federal violations in the Southern District of New York.

"* * *

"As to Vincent Alo and Tony Salerno, we had information they were high important figures in organized crime activity on the East Coast and had been connected with Vito Genovese."

Lazarus' counsel did not move to strike the testimony referring to the Mafia, but he did move for a dismissal TR. 69, which we will charitably treat as a motion for a mistrial, on the ground that the witness' reference to the Mafia was prejudicial. The court denied the motion, admonished the prosecuting attorney to avoid references to the Mafia, and reiterated its prior instruction to the jury that the witness' testimony was hearsay, not received for the purpose of proving the truth of the facts asserted.

Two days later the prosecuting attorney in reading the transcript of the grand jury proceedings of March 10, 1967, read a portion of the transcript in which Lazarus declined to answer the question: "Did Alo use the phone in connection with the gambling or other activities of the criminal syndicate known as La Cosa Nostra or the Mafia?" TR. 531. Lazarus' counsel had been previously supplied with the transcript and had specified out of the presence of the jury certain portions thereof which he objected to and did not want read, and the court by rulings complied with his request. TR. pages 86, 138, 161. He did not object beforehand to the inclusion of the challenged segment of the transcript quoted above. Nor did he object when it was read. At the conclusion of the reading he neither objected, moved to strike or moved for a mistrial. TR. 551. Some time later, following the noon recess, he moved for a mistrial based on the reference to the Mafia, and the motion was denied. TR. 572.

Testimony concerning the information presented to the grand jury was relevant to prove the subject of the grand jury's investigation and thus to prove the materiality of Lazarus' testimony before the grand jury. Disregarding for the moment the first witness' use of the word "Mafia," that information was that Lazarus and others had attended a high level meeting of members of an organized interstate gambling syndicate and that the activities of those who attended the meeting may have violated several federal statutes. Although reference to the Mafia was by no means necessary to the proof of the materiality issue, it was not wholly irrelevant to the inquiry. Part of the information spread before the grand jury was a claimed link between the members of the Palm Springs meeting and the Mafia.

Lazarus' argument is that even if the Mafia reference had some probative force, that evidence was so prejudicial that its reception deprived him of a fair trial and that the district court's denial of his motion for a mistrial was a clear abuse of discretion requiring reversal of his conviction. (Cf. Odom v. United States, (5 Cir.1967) 377 F.2d 853; Scott v. United States, (5 Cir.1959) 263 F.2d 398; United States v. Meagley, (7 Cir. 1957) 239 F.2d 637).

There well may be cases where reference in testimony linking the defendant to the Mafia, may require the granting of the defendant's motion for a mistrial. But this case is not such a case. The context of Lazarus' testimony was an investigation of organized crime and racketeering. The reference to the Mafia was made in that context. The public has long been exposed to extensive publicity about the evils of organized crime. We have no reason to suppose that publicity about the evils of the Mafia has been more extensive or more virulent than that devoted to members of organized crime who are not Mafia associates. We likewise have no reason to suppose that the public has less hatred toward big time racketers who are not members of the Mafia than it has toward those who are. We cannot say that the omission of any reference to the Mafia would have perceptibly brightened the jury's image of Lazarus or his associates. Moreover, nothing in the later developments at the trial points unerringly to undue prejudice to Lazarus that could be attributed to the unfortunate mention of the Mafia. We hold that the mention of the Mafia did not deprive Lazarus of a fair trial and that the district court did not abuse its discretion in denying his motion for a mistrial. (Cf. People v. Curtis,...