United States v. Jeremiah J. Kelley, 395 F.2d 727 (2d Cir. 1968). · Go Syfert
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United States v. Jeremiah J. Kelley, 395 F.2d 727 (2d Cir. 1968). Cases Citing This Book View Copy Cite
50 citation events across 15 distinct courts.
Strongest positive: United States v. Jerry R. Mastelotto, and Willis B. Inglesby (ca9, 1983-05-19)
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Statutes interpreted (leading-cases list)
#2 18 U.S.C. § 1084(a) cited 1× in this case · 9 total citations of statute
Top citers, strongest first. 27 distinct citers.
discussed Cited as authority (rule) United States v. Jerry R. Mastelotto, and Willis B. Inglesby
9th Cir. · 1983 · confidence medium
Cf. United States v. Henry, 504 F.2d 1335, 1339 (10th Cir.1974) (duplicity not fatally defective where defendant did not raise objection before trial, since duplicity did not “hinder the defendant in the preparation of his defense”), cert. denied, 421 U.S. 932 , 95 S.Ct. 1660 , 44 L.Ed.2d 90 (1975); United States v. Kelley, 395 F.2d 727, 730-31 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968) (duplicity objection waived in absence of pre-trial objection). 5 .
discussed Cited as authority (rule) ca1 1983
1st Cir. · 1983 · confidence medium
See United States v. Kail, 612 F.2d 443, 445 (9th Cir.1979) (defendant's conviction under Sec. 1084 and Sec. 2 affirmed), cert. denied, 446 U.S. 912 , 100 S.Ct. 1842 , 64 L.Ed.2d 266 (1980); United States v. Anderson, 542 F.2d 428, 436 (7th Cir.1976) (evidence insufficient to show either that defendant was "in the business" of gambling or that he was an aider and abettor); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.) (defendant's conviction under Sec. 1084(a) and Sec. 2 affirmed), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968). 71 The evidence, viewed in the light mo…
discussed Cited as authority (rule) United States v. Southard
1st Cir. · 1983 · confidence medium
See United States v. Kail, 612 F.2d 443, 445 (9th Cir.1979) (defendant’s conviction under § 1084 and § 2 affirmed), cert. denied, 446 U.S. 912 , 100 S.Ct. 1842 , 64 L.Ed.2d 266 (1980); United States v. Anderson, 542 F.2d 428, 436 (7th Cir.1976) (evidence insufficient to show either that defendant was “in the business” of gambling or that he was an aider and abettor); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.) (defendant’s conviction under § 1084(a) and § 2 affirmed), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
discussed Cited as authority (rule) United States v. William Ruffin (2×)
2d Cir. · 1979 · confidence medium
United States v. Wiseman, 445 F.2d 792, 794-95 (2d Cir. 1971); United States v. Kelner, 534 F.2d 1020, 1022 (2d Cir.), Cert. denied, 429 U.S. 1022 , 97 S.Ct. 639 , 50 L.Ed.2d 623 (1976) ("It is a general principle of causation in criminal law that an individual (with the necessary intent) may be held liable if he is a cause in fact of the criminal violation, even though the result which the court condemns is achieved through the actions of innocent intermediaries"); United States v. Ordner, 554 F.2d 24, 29 (2d Cir.), Cert. denied, 434 U.S. 824 , 98 S.Ct. 71 , 54 L.Ed.2d 82 (1977); United State…
cited Cited as authority (rule) United States v. Karl R. Huber
2d Cir. · 1979 · confidence medium
Fed.R.Crim.P. 12(b)(2); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
discussed Cited as authority (rule) United States v. Frank Viserto, Jr., Richard Rocco, Joseph Solce, Garnet Johnson, Sarah Payne, Howard Williams and Prentiss Covington
2d Cir. · 1979 · confidence medium
United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977) (per curiam); United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977), cert. denied, 434 U.S. 1062 , 98 S.Ct. 1233 , 55 L.Ed.2d 762 (1978); and see generally Davis v. United States, 411 U.S. 233, 243 , 93 S.Ct. 1577 , 36 L.Ed.2d 216 (1973); United States v. Kelley, 395 F.2d 727, 729-30 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
discussed Cited as authority (rule) United States v. William M. Ordner, Jr. (2×)
2d Cir. · 1977 · confidence medium
United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976); United States v. Kelner, 534 F.2d 1020, 1022-23 (2d Cir. 1976); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.), cert denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
discussed Cited as authority (rule) United States v. Russell Kelner (2×)
2d Cir. · 1976 · confidence medium
United States v. Kelley, 395 F.2d 727, 729 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968); United States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966), cert. denied, 385 U.S. 1002 , 87 S.Ct. 705 , 17 L.Ed.2d 542 (1967).
discussed Cited as authority (rule) Russell Bufalino v. Immigration and Naturalization Service (2×)
3rd Cir. · 1973 · confidence medium
Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939); United States v. Kelley, 395 F.2d 727, 730 (2d Cir. 1968).” “The cases indicate that a representation by the government that it has not Under the Supreme Court’s decision in Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969), it was proper to deny petitioner’s request to further examine B.
discussed Cited as authority (rule) United States v. Robert A. Barbato
1st Cir. · 1973 · confidence medium
See, e. g., Mitchell v. United States, 434 F.2d *922 230, 231 (9th Cir. 1970), cert. denied, 402 U.S. 946 , 91 S.Ct. 1636 , 29 L.Ed.2d 115 (1971); United States v. Kelley, 395 F.2d 727, 729-730 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
examined Cited as authority (rule) United States v. James Armiento and Edward Jernek (4×) also: Cited "see", Cited "see, e.g."
2d Cir. · 1971 · confidence medium
Supra, note 1. 8 .
cited Cited as authority (rule) United States v. Di Lorenzo
S.D.N.Y. · 1969 · confidence medium
United States v. Kelley, 395 F.2d 727, 730 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
cited Cited as authority (rule) United States v. Ball
E.D. Wis. · 1969 · confidence medium
United States v. Kelley, 395 F.2d 727, 730 (2d Cir. 1968); United States v. McCarthy, 292 F.Supp. 937, 943 (S.D.N.Y.1968).
cited Cited as authority (rule) United States v. De Sapio
S.D.N.Y. · 1969 · confidence medium
Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939); United States v. Kelley, 395 F.2d 727, 730 (2d Cir. 1968).
discussed Cited as authority (rule) United States v. Barr
S.D.N.Y. · 1969 · confidence medium
United States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966), cert. denied, 385 U.S. 1002 , 87 S.Ct. 705 , 17 L.Ed.2d 542 (1967); cf. Pereira v. United States, 347 U.S. 1, 8-9 , 74 S.Ct. 358 , 98 L.Ed. 435 (1954); United States v. Kelley, 395 F.2d 727, 729 (2d Cir. 1968); United States v. Inciso, 292 F.2d 374, 378 (7th Cir.), cert. denied, 368 U.S. 920 , 82 S.Ct. 241 , 7 L.Ed.2d 135 (1961); Boushea v. United States, 173 F.2d 131, 134 (8th Cir. 1949); United States v. Selph, 82 F.Supp. 56, 58 (S.D.Cal.1949). 10 .
cited Cited as authority (rule) United States v. McCarthy
S.D.N.Y. · 1968 · confidence medium
United States v. Kelley, 395 F.2d 727, 730 (2d Cir. 1968). 19 .
cited Cited "see" United States v. Sugar
S.D.N.Y. · 1985 · signal: see · confidence high
See United States v. Kelley, 395 F.2d 727, 730 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
discussed Cited "see" United States v. Minor
usarmymilrev · 1981 · signal: see · confidence high
See United States v. Kelley, 395 F.2d 727 (2d Cir.), cert. denied 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968); cf. Pereira v. United States, 347 U.S. 1 , 74 S.Ct. 358 , 98 L.Ed. 435 (1954) (conviction of mail fraud upheld, even though the items were actually placed in the mails by innocent party who was unaware of fraudulent scheme).
cited Cited "see" United States v. Alexander Stavros
7th Cir. · 1979 · signal: see · confidence high
See United States v. Kelley, 395 F.2d 727 (2d Cir. 1968); United States v. Pizzarello, 368 F.2d 177 (2d Cir. 1967).
discussed Cited "see" United States v. O'NEILL
E.D. Pa. · 1979 · signal: accord · confidence high
The Government was commended for “treating all such calls for the same purpose during a brief period as one crime subject to a single statutory penalty. 378 F.2d at 754 ; accord, United States v. Kelley, 395 F.2d 727 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
cited Cited "see" United States v. Politi
S.D.N.Y. · 1971 · signal: see · confidence high
See United States v. Kelley, 254 F.Supp. 9, 16 (S.D.N.Y.1966), aff’d in part and rev’d in part, 395 F.2d 727 (2 Cir.) cert, denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.
cited Cited "see" ca5 1969
5th Cir. · 1969 · signal: see · confidence high
See United States v. Kelley, 2 Cir., 1968, 395 F.2d 727 , cert. denied 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 .
cited Cited "see" Rewis v. United States
5th Cir. · 1969 · signal: see · confidence high
See United States v. Kelley, 2 Cir., 1968, 395 F.2d 727 , cert, denied 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 .
cited Cited "see, e.g." United States v. Warren Dean Drake
10th Cir. · 1981 · signal: see also · confidence low
See also United States v. Kelley, 395 F.2d 727 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968); United States v. Wilson, 342 F.2d 782 (2d Cir. 1965).
discussed Cited "see, e.g." United States v. Kearney
S.D.N.Y. · 1978 · signal: see also · confidence medium
See also United States v. Kelley, 395 F.2d 727, 730 (2d Cir.) cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968); Hanf v. United States, 235 F.2d 710 (8th Cir.), cert. denied, 352 U.S. 880 , 77 S.Ct. 102 , 1 L.Ed.2d 81 (1956).
discussed Cited "see, e.g." United States v. Kearney
S.D.N.Y. · 1978 · signal: see also · confidence medium
See also United States v. Kelley, 395 F.2d 727, 730 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968); Hanf v. United States, 235 F.2d 710 (8th Cir.), cert. denied, 352 U.S. 880 , 77 S.Ct. 102 , 1 L.Ed.2d 81 (1956).
cited Cited "see, e.g." United States v. Jerome Rapoport
2d Cir. · 1976 · signal: see also · confidence medium
See also United States v. Kelley, 395 F.2d 727, 729 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 , (1968).
UNITED STATES of America, Appellee,
v.
Jeremiah J. KELLEY, Appellant
38, Docket 30971.
Court of Appeals for the Second Circuit.
May 27, 1968.
395 F.2d 727
Peter R. Taft, Washington, D. C. (Vincent J. Fuller, Washington, D. C., on the brief), for appellant., Douglas S. Liebhafsky, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., Michael S. Fawer and Michael W. Mitchell, Asst. U. S. Attys., on the brief), for appellee.
Moore, Woodbury, Smith.
Cited by 39 opinions  |  Published
J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a judgment of conviction entered after a jury trial before Judge Irving Ben Cooper, Southern District of New York. Kelley was convicted and sentenced consecutively with respect to all four of the counts charged. Count 1: being engaged in the business of wagering and causing a telephone to be used in interstate commerce for the transmission of information assisting in the placing of bets or wagers. 18 U.S. C. §§ 1084(a) and 2. Count 2: causing a telephone to be used in interstate commerce to promote, manage, carry on, facilitate, or etc. an unlawful activity in violation of New York Penal Law § 986. 18 U.S.C. §§ 1952 and 2. Counts 3 and 4[*729] involved violation of the Federal Gambling Tax statutes, 26 U.S.C. §§ 7203, 7262 and 7272. Reversal of the conviction on counts 3 and 4 is required by Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) and Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). We find no error in the convictions on counts 1 and 2 and affirm the judgment on those counts.

Kelley, a bookmaker, operating in New York City in violation of New York law, constantly kept in touch with his clients in order to determine their willingness to place bets with him. On Kelley’s instruction, a customer desiring to place a bet would call 212-EL 5-2828, at the Sherry-Netherland Hotel and ask for the fictitious “Mr. Mellon.” He would be told that Mr. Mellon was not in. The bettor would then give the operator a code name previously decided by both the bettor and Kelley. Kelley would then call back, since he had each customer’s home and business phone numbers, to receive the bet. The government’s theory of the case is that the clients’ calls to the Sherry-Netherland from outside New York State constitute use or transmission by Kelley of a facility in interstate commerce to promote an unlawful activity and transmission of gambling information.

Counts 3 and 4 must fall in light of the Supreme Court’s decisions in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). Appellant’s further argument that the joining of counts whose statutory basis is later declared unconstitutional on single indictment and trial with other counts whose validity is unchallenged creates constitutional error with respect to convictions for the violation of the unchallenged statutes is without merit.

Reversal of the conviction on counts 3 and 4 does not require a reversal and new trial on counts 1 and 2. The mere presence of unconstitutional counts is not prejudicial and was not tantamount to an improper comment upon appellant’s failure to testify. If the presence of counts 3 and 4 “confounded and embarrassed” the defense to counts 1 and 2, a motion should have been made to sever. Failing this, appellant’s present claim of prejudicial joinder is now foreclosed. United States v. Perl, 210 F.2d 457, 461-62 (2d Cir. 1954). Furthermore, there was no prejudice to appellant. The only proof adduced on counts 3 and 4 which was not independently admissible on counts 1 and 2 as well was the stipulated testimony of records witnesses, offered to show appellant’s failure to register or pay the wagering tax. This proof had no tendency to establish that he was a gambler — if anything, it suggests the contrary.

Appellant’s several other points are also without merit.

A person may be held responsible as a principal under 18 U.S.C. § 2 (b) for causing another to do an act which would not have been criminal if directly performed by that other person. United States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966), cert. denied 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967). The evidence showed that appellant told these bettors how to get in touch with him if they wished to make a bet and, therefore it was reasonable to expect that they would make interstate calls. This is sufficient to find that he “caused” the interstate calls. United States v. Scandifia, 390 F.2d 244 (2d Cir. 1968); Bass v. United States, 324 F.2d 168 (8th Cir. 1963).

The telephone calls to the EL5 number informed appellant that someone was ready to place a bet and how that person could be reached. This is certainly “information assisting in the placing of bets or wagers” within the meaning of 18 U.S.C. § 1084.

Appellant was not prejudiced by the fact that counts 1 and 2 contained multiple violations. First, the objection may be deemed waived by failing to raise it prior to trial as required by Rule 12(b)[*730] (2) of the Federal Rules of Criminal Procedure. Second, the government had furnished a bill of particulars several months before the first trial setting forth all the specific telephone calls which it intended to prove. Third, as was noted in United States v. Cohen, 35 F.R.D. 227, 231 (N.D.Cal.1964), affirmed 378 F.2d 751, 754 (9th Cir.), cert. denied 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967), “[t]he offense was a continuing course of conduct, and in that respect might, to the advantage of the defendant, be treated as one course of conduct and one offense.”

The jury selection process of this Circuit was recently approved in United States v. Kelly, 349 F.2d 720, 778 (2d Cir. 1965), cert. denied 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). We adhere to that ruling.

Appellant contends that the court should have ordered an eavesdropping investigation. We disagree. Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968), in which the Supreme Court ordered the Solicitor General to make an investigation and to present his findings to the district court in that case to determine whether evidence obtained from unlawful eavesdropping was used at the trial, does not invite every federal defendant to go on a fishing expedition such as appellant requests when there is no suggestion of eavesdropping. See United States v. Franzese, 392 F.2d 954 (2d Cir. 1968). No basis is shown for an investigation here.

Appellant further contends that evidence found on his person at the time of arrest should have been suppressed. We find no support for this contention. The one day delay in arresting appellant is not ground for suppressing the evidence found on his person. McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977 (1950), is distinguishable, in that in that case the delay was used as a device to make a search of premises for which a search warrant admittedly could not have been obtained. Compare United States v. Joines, 258 F.2d 471 (3d Cir. 1958), Seymour v. United States, 85 U.S. App.D.C. 366, 177 F.2d 732 (1949).

The conviction on counts 3 and 4 is reversed and these counts of the indictment are ordered dismissed. The judgment of conviction on counts 1 and 2 is affirmed.