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State v. Boiardo

Decided: September 20, 1968.

STATE OF NEW JERSEY, PLAINTIFF,
v.
RUGGERIO BOIARDO, TOBY BOYD, ET AL., DEFENDANTS



On motion to dismiss indictment.

Fusco, J.s.c.

Fusco

[103 NJSuper Page 382] I am going to consider these matters in the order in which they have been presented. I am cognizant of the fact there are some 19 defendants involved in indictment 2224-67, all of whom have joined in a motion to dismiss the indictment charging conspiracy. Julia Orsi also makes a motion to dismiss the indictments against her charging her with a violation of the lottery laws under indictments 2233 and 2234. Benjamin Thomas moves for a dismissal of indictments 2239, charging maintaining, and 2240, charging violation of the lottery laws. Nunzio Sica seeks a dismissal of indictments 2235, charging maintenance, and 2236,

charging violation of the lottery laws. Michael Russomano moves for a dismissal of indictment 2233, charging violation of the lottery laws.

Thus, besides the principal indictment, the several indictments referring to the individual defendants which I have made reference to are the subject matter of this motion or these motions to dismiss.

It appears that all the defendants have been indicted by the Essex County grand jury for conspiracy to violate the lottery laws of the State of New Jersey, and certain of them for having in their possession lottery slips or maintaining premises to which persons might resort for gambling.

It appears and is almost conceded by the State that the evidence upon which the indictments are founded was originally seized by federal authorities pursuant to search warrants which asserted violations of the Federal Wagering Tax Laws, specifically, 26 U.S.C. §§ 4401, 4411, 4412, 4901, 7203 and 7262, and 18 U.S.C. 371.

The State indicates that the evidence so gathered by the federal authorities was then turned over to the Essex County Prosecutor. The federal indictments against these several defendants, which were based upon these statutes and upon the evidence so seized, were dismissed on motion of the United States Attorney for the District of New Jersey on June 7, 1968.

Defendants contend, generally, that the Supreme Court of the United States has shown a trend over the past several decades for making more and more of the constitutional guarantees embodied in the Bill of Rights obligatory upon the states under the Fourteenth Amendment. Moreover, that court has required the states to employ federal standards when interpreting these rights. This trend has continued from the landmark case of Wolf v. People of State of Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), through Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), and Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963).

The court focused on the self-incrimination clause of the Fifth Amendment in Malloy v. Hogan, 378 U.S. 1. 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964), holding that the states may not abridge that basic right under the Fourteenth Amendment. Defendants argue that it is against this background that the issues in this case must be considered.

In Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2 d 889 (1968), the Supreme Court, it is contended by the defendants, held that the privilege against self-incrimination provides a complete defense to a prosecution under 26 U.S.C. §§ 4411 and 4412, the federal statutes which impose an occupational tax on gamblers and require the registration of all those who must pay this tax. Defendants call to the attention of the court various excerpts from this case:

"Wagering and its ancillary activities are very widely prohibited under both federal and state law. Federal statutes impose criminal penalties upon the ...


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