United States v. Nichols

• Decision Date: 06 February 1970
• Docket Number: No. 19669.,19669.
• Citation: 421 F.2d 570
• Parties: UNITED STATES of America, Appellee, v. Charles Leo NICHOLS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

421 F.2d 570 (1970)

UNITED STATES of America, Appellee, v. Charles Leo NICHOLS, Appellant.

No. 19669.

United States Court of Appeals, Eighth Circuit.

February 6, 1970.

Bernard Passer and Herman Epstein, Kansas City, Mo., on brief for appellant.

Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., on brief for appellee.

Before VAN OOSTERHOUT, Chief Judge and MATTHES and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The defendant, Charles Leo Nichols, was charged, in a one count indictment, with traveling interstate "with intent to * * * facilitate the * * * carrying on of an unlawful activity * * *" in violation of § 1952, Title 18, U.S.C.¹ The defendant waived trial by jury and, on January 3, 1969, was found guilty and sentenced to one year and one day by Judge Richard M. Duncan, United States District Judge for the Western District of Missouri. From that judgment, the defendant brings this appeal.

The evidence produced at trial was not in controversy and consisted, in large part, of previous admissions of the defendant to various public officials and law enforcement officers. The defendant did not introduce any evidence on his own behalf. The evidence tended to establish the following facts.

The defendant was involved in the operation of policy wheels in the Kansas City area since the early 1920's. During the 1960's, the defendant's operations encountered problems due to the passage of federal anti-racketeering legislation² and to occasional crackdowns by local officials. These measures resulted in the temporary shutdown of the defendant's policy operations on at least two occasions and a reduced level of activity at other times. In May, 1967, the defendant again commenced the operation of a policy wheel in Kansas City, Kansas.

During the period from 1965 to September 29, 1967, the defendant approached several public officials in attempts to aid his operation. After being denied permission to operate a policy wheel from officials in Kansas City, Kansas and Leavenworth, Kansas,³ the defendant contacted Detective Washington, a member of the vice squad of the Kansas City, Kansas, Police Department. The initial contact was made by telephone on June 30, 1967, in Kansas City, Kansas. The defendant informed Detective Washington that he was operating a policy wheel in Kansas City, Kansas. He stated that he had been losing money the last two years because of pressure from local officials and that he hoped to expand his operation and recoup his losses now because he had heard the pressure was off. The defendant offered Washington $100.00 per month to inform him when the "heat was on" or if his policy writers were in danger of arrest from local law enforcement agencies. Detective Washington subsequently informed the Chief of Police of the meeting and was instructed to relay the information to the FBI. Washington had no subsequent contact with the defendant and did not receive or accept any money from him.

On September 26, 1967, the defendant telephoned Lieutenant John J. Donnelly, then head of the Vice Unit of the Kansas City, Kansas, Police Department. A meeting was arranged for the same day. At this meeting, the defendant informed Donnelly that he wanted to operate his business more freely than he had been able to do and that it would be worth $200 immediately and $300 each month thereafter to Donnelly if he would help him. Donnelly was "not to assign men to follow him, not to interfere by making too many arrests, just to make a periodic arrest here and there to make things look good." Donnelly responded that he didn't think much of the idea, but would consider it. During this meeting, the defendant admitted that he was doing the stamping for his operation at a house on Everett Street in Kansas City, Kansas. The meeting ended with an agreement that Donnelly would call the defendant the next day to arrange another meeting. The following day, Donnelly did contact the defendant, but stated he could not meet with the defendant until Friday, September 29. On Friday, Donnelly again telephoned the defendant and again told the defendant that he did not think much of the defendant's idea. Donnelly stated that he was busy doing some work around the house and then listed a number of places he had to go that day. The defendant interrupted Donnelly at this point and suggested that they met at the Old Westport Shopping Center in Kansas City, Missouri, mentioned by Donnelly. Donnelly agreed to meet the defendant in the parking lot of the shopping center.

Before going to the shopping center, Donnelly went to City Hall to advise the Chief of Police of the meeting, and he also telephoned the local field office of the FBI of this information. Donnelly had kept both the Chief of Police and the FBI agents informed of the defendant's activities from the time of the original phone call.

When the two men met at the shopping center a short time later, Donnelly noticed a roll of currency⁴ in the defendant's hand. Before accepting the money, Donnelly asked again what was expected in return. The defendant replied, "Just any little thing to make the operation run a little smoother where I will be free to operate. Just don't assign these men to follow me all the time. I'll expect — I'll appreciate any little thing you do." As soon as Donnelly accepted the money from the defendant, he gave a prearranged signal and agents of the FBI arrested the defendant.

At the trial, the government's position was that this evidence was sufficient to prove that the defendant was operating a policy wheel in Kansas City, Kansas, and that the defendant traveled to Missouri in an effort to facilitate that operation. The government contended that these two facts were sufficient to constitute a violation of § 1952, Title 18, U.S. C.

On appeal, the defendant alleges five separate errors by the trial court as grounds for the reversal of his conviction:

(1) The overruling of the defendant's motion to quash the indictment as being overly vague.

(2) The overruling of the defendant's motion to quash the indictment because the statute on which it was based is unconstitutional.

(3) The permitting of the admissions of the defendant into evidence without corroboration.

(4) The finding of a violation of § 1952, Title 18, U.S.C., because there was insufficient evidence to prove that the defendant conducted any unlawful activity as required by that statute.

(5) The failure to find that the defendant had been entrapped.

We have studied each of these points and have determined that each of them is without merit. We consider the contentions seriatim.

I

The indictment charging the defendant read as follows:

"That on or about the 29th day of September, 1967, in the Western District of Missouri, and the District of Kansas, CHARLES LEO NICHOLS, unlawfully, willfully, and knowingly did travel in interstate commerce from Westwood, State of Kansas, to Kansas City, State of Missouri, with intent to * * * facilitate the * * * carrying on of an unlawful activity, said unlawful activity being a business enterprise involving gambling, namely, a lottery known as policy gambling and also known as the numbers game, in violation of the laws of the State of Kansas, * * *; and thereafter, said defendant unlawfully, willfully, and knowingly did perform acts to * * * facilitate the * * * carrying on of said unlawful activity, all in violation of Section 1952, Title 18, United States Code."

The defendant argues that this indictment is defective because (1) there is no allegation that the defendant violated a law in the state in which he is being prosecuted, and (2) the activities asserted to have taken place "thereafter" are not specifically described or enumerated.

We do not read § 1952, Title 18, U.S.C., as requiring that the gambling occur in the state in which the prosecution is brought. Here, the government alleged that unlawful activity, gambling, was being conducted in Kansas and that the defendant traveled from Kansas to Missouri with the intent to facilitate his Kansas gambling activities. It also alleged that the defendant committed acts which facilitated the unlawful activity. In our view, these allegations are sufficient to bring the activities within the prohibition of § 1952. Section 1952 does not require that the interstate travel be, in itself, a criminal act, nor that the act performed after the travel be itself unlawful, so long as the travel and subsequent act facilitates the carrying on of the unlawful activity. McIntosh v. United States, 385 F.2d 274 (8th Cir. 1967); United States v. Azar, 243 F.Supp. 345 (E.D.Mich.1964).

The site of the prosecution is controlled by § 3237, Title 18, U.S.C., which provides that any offense begun in one District and completed in another District may be prosecuted in either.⁵ The cases cited by the defendant, Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Grimes v. United States, 379 F.2d 791 (5th Cir. 1967); United States v. Miller, 379 F.2d 483 (7th Cir. 1967), do not attempt to deal with the issue raised here.

The indictment is not insufficient because of its failure to specify the acts performed after the interstate travel or to state where those acts occurred. In Spinelli v. United States, su- pra, this Court dealt with a similar one count indictment couched in the terms of § 1952. We there stated:

"An indictment is good if it informs the defendant of the offense with which he is charged with sufficient specificity to enable him to prepare his defense and protects him against future jeopardy. * * * We believe this indictment, framed in the terms of the statute, measures up to that standard. Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963); United States v. Teemer, 214 F.Supp. 952 (N.D.West Va.1963)."

Spinelli v. United States, supra at 888.

We believe this statement of the law to be of continuing validity. The...