Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S 77-Cr-8 - Allen Sharp, Judge .
Before Cummings, Pell*fn** and Wood, Circuit Judges.
The defendant, Julius C. Werbrouck, Jr., was indicted on April 13, 1977, for violation of federal gambling laws, 18 U.S.C. § 1955 and § 2, and was convicted by a jury on September 2, 1977.*fn1
The defendant first contends that the trial court erred in denying his demand for a preliminary hearing. Pursuant to Rule 5.1 of the Federal Rules of Criminal Procedure, a preliminary examination is not available to a defendant who has already been indicted as in this case. The purpose of a preliminary hearing is to determine probable cause and thus a hearing is unnecessary after indictment as the grand jury has already made that determination. United States v. White, 454 F.2d 435 (7th Cir. 1971), Cert. denied, 406 U.S. 962, 92 S. Ct. 2070, 32 L. Ed. 2d 350 (1972); United States v. Lauchli, 444 F.2d 1037 (7th Cir.), Cert. denied, 404 U.S. 868, 92 S. Ct. 162, 30 L. Ed. 2d 112 (1971).
The defendant also asserts that the trial court erred in denying his motion to dismiss. The gist of this motion was that the defendant's own gambling activity was local in nature and therefore did not have an interstate character sufficient to meet the federal jurisdictional requirements of 18 U.S.C. § 1955. Section 1955, however, does not require a showing that the gambling activities of each person involved have affected interstate commerce. United States v. Manson, 494 F.2d 804 (7th Cir.), Cert. denied, 419 U.S. 994, 95 S. Ct. 304, 42 L. Ed. 2d 266 (1974). The defendant further argues that Section 1955 is unconstitutionally vague. This argument has previously been rejected by the courts. United States v. McCoy, 539 F.2d 1050 (5th Cir. 1976), Cert. denied, 431 U.S. 919, 97 S. Ct. 2185, 53 L. Ed. 2d 230 (1978); United States v. Sacco, 491 F.2d 995 (9th Cir. 1974).
Defendant next argues that the trial court erred in denying his motion to suppress evidence of certain Holiday Inn registration and billing records. He complains that the evidence before the magistrate was insufficient to support a finding of probable cause for the search, especially because the search occurred at night. However, the affidavit which accompanied the search warrant was nine pages long and included the detailed observations of FBI Agent Naum who in an undercover capacity was present at the casino on numerous occasions. Having reviewed the affidavit, we are of the opinion that it provided reliable, detailed information sufficient to constitute probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). As to defendant's objection to the authorized nighttime search which commenced at 10:00 p. m., we find the timing of the search to be reasonable because, as the affidavit stated, the casino operated only in the evening between 8:00 p. m. and 2:00 a. m. Thus the trial court was correct in denying the defendant's motion to suppress.
The defendant also raises the issue of whether the trial judge erred in excluding all prospective jurors who admitted during Voir dire that they had "read anything about this defendant or this case in the South Bend Tribune or in any other newspaper." The judge also asked, "Have any of you other than those who have just left heard or read about this case in any way from any other media, any other newspaper, the television or radio or received any other information about this case other than what you have heard here today from me in the course of these proceedings?" All persons responding affirmatively to these questions were excused. The defendant contends that by excluding 23 prospective jurors exposed to new accounts of the case, the court excluded a geographic group from the jury, thereby denying his constitutional and statutory right to a trial by a jury reflecting a representative cross section of his community.
The requirement that an impartial jury be drawn from a cross section of the community "does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible." Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 90 L. Ed. 1181 (1946). In this case the exclusion of jurors was not a blanket exclusion of persons from a geographic area. The jury selected included three members from the community in which the defendant lived. Although the exclusion may have had the incidental effect of reducing the number of prospective jurors from a certain geographic area, the trial judge did not commit error in exercising his discretion by protecting the defendant from the potential prejudice that might have resulted from pretrial publicity.*fn2 United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), Cert. denied, 416 U.S. 936, 94 S. Ct. 1934, 40 L. Ed. 2d 286 (1974).
Ironically, the defendant also argues that the trial court erred at the close of trial in not giving Sua sponte a jury instruction cautioning the jury against reliance on any prejudicial publicity that may have appeared during the course of the trial. The defendant, however, never apprised the court of any prejudicial publicity nor requested a cautionary instruction. It is clear that the burden is on the party seeking such an instruction to raise the issue before the trial court. United States v. Pomponio, 563 F.2d 659 (4th Cir. 1977), Cert. denied, 435 U.S. 942, 98 S. Ct. 1521, 55 L. Ed. 2d 538 (1978); Margoles v. United States, 407 F.2d 727 (7th Cir.), Cert. denied, 396 U.S. 833, 90 S. Ct. 89, 24 L. Ed. 2d 84 (1969). Because the defendant failed to satisfy this burden, because the trial judge cannot be expected to read, see and hear all media coverage of the trial, and because there was no showing that the jury was in fact exposed to any of the publicity, we hold that no error was committed. From time to time during the trial the judge carefully admonished the jury not to permit exposure to any trial publicity.
Next we consider defendant's claim that there was insufficient evidence to sustain the court's denial of the defendant's motion for acquittal and the jury's verdict of guilty. The defendant contends that there was neither sufficient evidence to establish his involvement with the gambling business as a principal or as an aider and abettor, nor to establish the jurisdictional requirement of substantially continuous operation of the enterprise in excess of 30 days. When viewed in the light most favorable to the government, the evidence is more than sufficient to sustain the conviction. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942). Substantial evidence established that: (1) the defendant owned and operated the Holiday Inn Motel and the adjoining Lincoln Highway Inn Restaurant in South Bend, Indiana; (2) the defendant moved out of his personal room at the Holiday Inn to allow the gambling casino to move in; (3) the defendant permitted certain motel rooms to be physically altered for gambling purposes, including the building of partition walls and the installation of a steel door, cameras, monitors and electronically controlled door locks; (4) the defendant charged no rent for the motel casino rooms and regularly provided customers free food and drinks from his adjoining restaurant; (5) the defendant held keys to the electronically controlled doors and at times admitted persons to the rooms; and (6) the defendant was observed in the gambling casino. From these and other factual determinations the jury and trial court could plainly have concluded that the defendant was guilty beyond a reasonable doubt.
Defendant's objections regarding the statutory 30-day gambling operation jurisdictional requirement are without merit. In United States v. Mattucci, 502 F.2d 883, 889 (6th Cir. 1974), the court declared:
The statute, 18 U.S.C. § 1955(b)(1)(iii), clearly makes the thirty day requirement a part of the definition of illegal gambling business and not a specific requirement as to the duration of individual participation by persons involved in such business.
The record contains substantial evidence to support the conclusion that the Holiday Inn casino was substantially the same illegal gambling operation which had begun at a different location five months earlier before the move to the defendant's motel.
We consider lastly whether the trial court erred in prohibiting the defendant's efforts to impeach a government witness through specific instances of misconduct. David Andrews, a former police officer, was one of three government witnesses who testified that he observed the defendant at the gambling casino. The defendant attempted to introduce findings of the Board of Public Works and Safety of South Bend, Indiana, which described an incident seven years previously in which Andrews, as a police officer, had planned to have friends plant marijuana on certain persons whom Andrews then intended to arrest. Andrews was fired. However, the defendant failed to cross-examine Andrews regarding that incident, claiming that when he cross-examined Andrews he was unaware of the impeaching information. The day after Andrews testified the ...