United States v. Marquez, 627

• Decision Date: 07 April 1970
• Docket Number: Dockets 34218,628,No. 627,34219.,627
• Citation: 424 F.2d 236
• Parties: UNITED STATES of America, Appellee, v. Raymond MARQUEZ and Radames Mas, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

424 F.2d 236 (1970)

UNITED STATES of America, Appellee, v. Raymond MARQUEZ and Radames Mas, Appellants.

Nos. 627, 628, Dockets 34218, 34219.

United States Court of Appeals, Second Circuit.

Argued March 13, 1970.

Decided April 7, 1970.

Rehearing Denied May 15, 1970.

COPYRIGHT MATERIAL OMITTED

Mary M. Kaufman, New York City (Albert J. Krieger, New York City, and Frank Askin, Newark, N. J., on the brief), for appellants.

Richard A. Givens, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, William B. Gray, Asst. U. S. Atty., on the brief), for appellee.

Before SMITH, KAUFMAN and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

Raymond Marquez and Radames Mas appeal from judgments of conviction on trial to the jury in the United States District Court for the Southern District of New York, Walter R. Mansfield, Judge. Marquez and Mas were charged with crossing state borders to further unlawful activity under 18 U.S.C. § 1952, and conspiracy to do the same under 18 U.S.C. § 371. Mas was also charged with interstate transportation of gambling paraphernalia under 18 U.S. C. § 1953. Five other defendants under the indictment were severed before trial. Mas was found to be guilty on all three counts. Marquez was found to be guilty of Count Two, conspiracy only. The jury was unable to agree on Marquez' substantive count and a mistrial was declared as to that count. Mas was sentenced to three years' imprisonment and a $5,000 fine on each count, concurrently. Marquez was sentenced to five years' imprisonment and a $10,000 fine. We find no error and affirm the judgments.

The evidence tended to show a complex numbers racket operating out of the Sky Club in New York City. Mas was a New Jersey resident who was found to have kept a control sheet and other gambling materials in his New Jersey home. He was arrested on September 3, 1968 on the New York side of the George Washington Bridge; he was carrying gambling records, an address book, and $12,800 cash. His home was searched the same day yielding a suitcase full of gambling materials, the control sheet, and a letter which became known as the "Firpo letter." Mas had been seen on numerous occasions near the Sky Club, often together with Marquez. Marquez was arrested in his car in New York on May 14, 1969 and a bag on the seat between him and a compatriot, Marcone, was found to contain money and gambling slips resembling in many aspects those seized from Mas' home.

Appellants argue that on the conspiracy counts it was error to admit materials seized at Marquez' arrest, since the federal conspiracy arguably had ended eight months previously at the time of Mas' arrest. They argue that the only evidence of any interstate travel was that by Mas, and this ended at his arrest. Thus, they contend the federal conspiracy to travel across state borders to promote gambling must have ended when the interstate travel ended. We do not agree. Even if the conspiracy ended with the cessation of interstate travel, acts of conspirators after the conspiracy may be used to show the fact of the illegal association (as opposed to hearsay declarations of a co-conspirator after the end of the conspiracy). United States v. Bennett, 409 F.2d 888 (2d Cir.), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969), and Jessup v. United States, 396 U.S. 853, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969); see United States v. Ragland, 375 F.2d 471, 477 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968). Here, the items seized from Marquez at the time of the arrest were not hearsay declarations, were probative as to the existence of the allegedly prior conspiracy, and were thus admissible to show the existence of the conspiracy, even if it had already terminated. In any event, it is not clear that Mas' arrest ended the conspiracy. See Bennett,supra. It may also be noted that the substantive crime, section 1952, contemplates interstate travel followed by acts in violation of state law.

Next, appellants argue that the conspiracy count against them must fall because there is no direct evidence that Marquez knew of any interstate element. There is, however, circumstantial evidence. Marquez' fingerprints were found on the control sheet in Mas' New Jersey home. Mas' phone called Marquez' 18 times. In the case of leaders of a conspiracy, an inference may be drawn in a proper case that the leader is aware of his underling's out-of-state residence. United States v. Corallo, 413 F.2d 1306 (2d Cir. 1969); United States v. Barrow, 363 F.2d 62 (3 Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L. Ed.2d 541 (1967). There is sufficient evidence that Marquez was a leader. He was seen near the Sky Club acting like a leader. And his fingerprints were found on a control sheet which it might be inferred would only be in the hands of the higher echelon. Thus the evidence supports the conclusion of Marquez' knowledge of the interstate element.

Appellants next challenge the admission of the so-called "Firpo letter" which was seized at Mas' home. They argue it was hearsay by an unidentified co-conspirator, "Firpo" about whom there is no independent evidence as to his membership. And they argue that it is hearsay because there is no way to cross-examine Firpo as to the contents. The letter was addressed: "Attention Boss" and dealt with a payoff difficulty which seemed to arise from bets recorded on the control sheet. However, it is not clear that this is hearsay since the letter was not used to show the truth of its contents, that is, that a payoff difficulty actually existed, but rather only as evidence of the existence of a report to some "Boss" of administrative difficulties which were apparently to be settled within a hierarchical structure. See United States v. Nuccio, 373 F.2d 168 (2d Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967). Moreover, there was no objection on the hearsay ground, only on the ground of lack of connection and foundation. Attack now is therefore precluded. Bennett, supra, 409 F.2d at 898. Finally, appellants urge that this letter could not be considered by the jury in considering the question of membership. We have rejected this argument repeatedly. Independent evidence of membership is needed to ground the judge's decision to admit hearsay declarations by co-conspirators, but once admitted, the declarations are available on all issues. United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969).

Next, appellants contend that the court's answers to jury questions were erroneous. At the end of the first day the jury announced it had found Mas guilty on all three counts and that it was divided as to Marquez. Appellants argue that it is inconsistent to find Mas guilty of conspiracy without being able to decide if Marquez was also guilty of conspiracy. This contention must be rejected since Mas could have been found to have conspired with men other than Marquez, and the evidence was sufficient to support such a finding. Appellants argue that instructions allowing the finding of a conspiracy with other men were error since there was no...