United States v. Lester

• Citation: 363 F.2d 68
• Decision Date: 08 July 1966
• Docket Number: No. 16093,16094.,16093
• Parties: UNITED STATES of America, Appellee, v. Charles E. LESTER and Edward Anthony Buccieri, Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

363 F.2d 68 (1966)

UNITED STATES of America, Appellee, v. Charles E. LESTER and Edward Anthony Buccieri, Appellants.

Nos. 16093, 16094.

United States Court of Appeals Sixth Circuit.

July 8, 1966.

J. Leonard Walker, Louisville, Ky., for appellant, Lester.

Howell W. Vincent, Covington, Ky., J. Leonard Walker, Louisville, Ky., on brief, for appellant, Buccieri.

Harry I. Subin, Dept. of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Peter R. Richards, Atty., Dept. of Justice, Washington, D. C., on brief, for appellee.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and MATHES, Senior District Judge.^*

MATHES, Senior District Judge.

Charles E. Lester and Edward Anthony Buccieri appeal from the judgment entered upon a jury verdict finding them guilty as charged, in count one of an indictment, which alleged that appellants and another private citizen, one Carinci, conspired together and with three members of the police force of Newport, Kentucky, to commit an offense against the laws of the United States, in violation of 18 U.S.C. § 371.

The offense averred to be the object of this conspiracy was to violate 18 U.S.C. § 242 by willfully depriving one George W. Ratterman, under color of State law, "of rights, privileges and immunities secured to him and protected by the Fourteenth Amendment to the Constitution of the United States; namely, the right not to be deprived of liberty without due process of law, the right to be free from arrest by an officer acting * * * without legal justification * * * and the right not to be denied the equal protection of the law." It is further alleged in the indictment that: "It was the plan and purpose of the conspiracy that the three defendant police officers * * *, while acting * * * under color of law, would arrest and imprison George W. Ratterman, charge him with a violation of law, and cause his conviction, all knowing him to be innocent."

In count two of the indictment, the police officers were accused of the commission of the substantive offense which was the asserted object of the conspiracy; while appellants and Carinci were charged with aiding and abetting the police officers in their violation of 18 U.S.C. § 242. The jury convicted both appellants of the conspiracy charged in count one, but acquitted them of the substantive offense charged in count two. All other defendants, including the three police officers, were acquitted by jury verdict of all charges — both the conspiracy and the substantive offense.

As grounds for reversal of their conviction on the conspiracy count, appellants contend: (1) that the evidence was insufficient to support the conviction; (2) that in giving the jury an instruction which included reference to "persons unknown", the trial court committed prejudicial error; (3) that the trial court likewise erred in refusing to instruct the jury: "Unless you find from the evidence that one or more of the * * * police officers were acting under color of law and guilty of the alleged charges * * *, then the law is for the defendant, * * * Lester, and you shall so find * * *"; and (4) that since the police officers were acquitted on both counts, appellants' motion after verdict for judgment of acquittal, pursuant to Rule 29(b) of the Federal Rules of Criminal Procedure, should have been granted. We shall deal with each of these contentions seriatim.

In determining whether the evidence of guilt was sufficient to sustain the verdict, it is worth recalling that "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

The evidence, direct and circumstantial, in the case at bar, together with the inferences which the jury could reasonably have drawn therefrom, combined to warrant the jury in finding inter alia the following facts: The Glenn-Tropicana, a combination nightclub and hotel in Newport, Kentucky, across the Ohio River from Cincinnati, had been favored for many years with somewhat-less-than-vigorous enforcement of the State laws prohibiting gambling and prostitution. In April of 1961, upon the announcement of George W. Ratterman as a "reform" candidate for sheriff, defendant Carinci, a co-proprietor of the Glenn-Tropicana, telephoned one Thomas Paisley and asked him to arrange a meeting for Carinci with Ratterman.

A few days later, on April 14, appellant Lester, attorney for the Glenn-Tropicana, telephoned a Newport photographer and asked him to talk to appellant Buccieri, another co-proprietor of the Glenn-Tropicana, about a picture. In due course, the photographer contacted Buccieri who told the photographer that his services would be needed "to take a picture of a man and a woman in a room"; and added the assurance: "Now, don't worry about anything, we will protect you." The photographer gave Buccieri a telephone number where he could be reached at night.

On May 8, 1961, Paisley came to Cincinnati and had cocktails and dinner with Ratterman, commencing at about 5:45 in the afternoon, following which they met with Carinci at a Cincinnati restaurant. After consuming several drinks in the course of the evening, Ratterman and Carinci and Paisley went over to the Glenn-Tropicana for supper. Upon their arrival about 1:30 A.M., Ratterman and Paisley were ushered into Glenn-Tropicana's suite 314 on the third floor, near which an illegal gambling operation was regularly conducted. Appellant Buccieri then sent Rita Desmond, one of the club's showgirls upstairs to suite 314 to have a drink with Paisley and Ratterman. Shortly after Rita arrived, Ratterman, who was extremely drowsy by now, left the sitting room of the suite and lay down in an adjoining bedroom.

Carinci next directed April Flowers, another of the Glenn-Tropicana's showgirls, to stop her striptease act and go at once to suite 314 without bothering to change her costume. When April arrived, she was asked by Rita to go into the bedroom and try to awaken Ratterman. April did so, but her efforts failed to arouse Ratterman. Carinci then came to suite 314 and requested Rita and Paisley to go elsewhere in the club with him, leaving April and Ratterman alone in the bedroom of 314.

Meanwhile, approximately ten minutes after Ratterman had arrived at the Glenn-Tropicana, someone called the photographer's home, and left word for him to call Buccieri at the club. However, the photographer did not return the call. At 2:20 A.M., the gambling operations on the third floor were closed substantially earlier than usual, and the patrons were asked to leave the third floor.

At 2:32 A.M., an anonymous phone call was received at the Newport police station for one of the defendant police officers, who was told: "If you want to get George Ratterman, he is in Room 314 of the Glenn Hotel." The three defendant officers thereupon went to the Glenn-Tropicana at 2:35 A.M., where they first arrested Carinci, and then April Flowers as she emerged from the bedroom of suite 314. That done, there followed a brief scuffle between the police officers and Ratterman, and the latter was taken into custody, wrapped in a bedspread. Testimony by the police officers that he was found with his trousers off was disputed by Ratterman, who said that his trousers had been removed from him by the officers.

Appellant Lester promptly arrived at the police station, after having called a bondsman who posted bail for April Flowers and Carinci, but refused to provide bail for Ratterman. Appellant Lester admitted that he had been up since 2:00 A.M., "when the Ratterman deal broke" — well more than a half hour before the arrests occurred. At approximately 4:00 A.M. following the arrests, all six persons accused in the indictment — including the three police officers — were seen together at the Glenn-Tropicana, and at the Flamingo Club an hour later.

Examination of Ratterman the following day disclosed traces of from three to four grams of chloral hydrate "knockout drops" estimated to have been ingested between 10:00 and 11:00 P.M. the previous evening.

Since the jury acquitted all the accused of the substantive offense charged in count two of the indictment, it would serve no useful purpose to recount here the evidence dealing particularly with that offense; other than perhaps to record that the police-court case against Ratterman was dismissed after his attorney was able to produce the photographer, whose account of the efforts to have him take a picture of the planned bedroom scene persuaded the City Attorney of Newport that the affair was a sham.

There was ample evidence to sustain the conviction of both appellants on the conspiracy count. Indeed, we must say that the evidence was ample to sustain a conviction of all defendants on both counts.

Turning now to appellants' objections to the instructions given to the jury the record discloses, as appellants point out, that the District Court instructed the jury in the language of the indictment at one point during the charge and, in so doing, did say that if the jury should believe beyond a reasonable doubt that the six defendants named in the conspiracy count had conspired with each other "and with other persons to the grand jury unknown", as charged, the defendants could be found guilty. But the District Judge went on to make it crystal clear that only the six named defendants were involved under the evidence in the case, by further instructing the jury that: "The conspiracy charged in the first count * * is a charge that these six defendants agreed among themselves to commit the unlawful act. * * *"

Moreover, no objection to the mention of "persons unknown" was made at the trial see Fed.R.Crim.P. 30 and, considering the instructions as a whole, the reference to "persons unknown" of which appellants complain could not have adversely affected any of their substantial rights see: Fed.R.Crim.P....