IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-7648

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVIN WAYNE HEACOCK, JR., a/k/a

"Johnny B. Williams,"

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

________________________________________________________________ (August 24, 1994)

Before KING, JOLLY, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Alvin Wayne Heacock, Jr. appeals his criminal convictions for

various illegal gambling related offenses. He argues eleven points

of error, but most ha ve little merit. We therefore focus our

attention on (A) Heacock's sufficiency of the evidence challenge to

his conviction under 18 U.S.C. § 1955--operation of an illegal

gambling business--and (B) Heacock's legal challeng e to his

conviction under 18 U.S.C. § 1952--interstate travel in aid of

racketeering. We hold that the judgment of conviction is errorfree, and therefore affirm.-2- I

Heacock was a bookie in Hattiesburg, Mississippi. Heacock

controlled a fairly large gambling operation, with several

"associates" operating bookmaking offices for him in several

cities. Many of Heacock's gambling partners testified at trial

concerning Heacock's gambling business. The evidence showed how

bets were made, what types of bets were made, and how money was

moved between cities. Further, there was testimony to show that

Heacock and his associates took deliberate steps to avoid the paper

trails of the gambling operations, that Heacock had a practice of

"hiding" money--in the floor at one of his apartments and in aliasnamed safety deposit boxe s --and, finally, that Heacock's real

profits differed significantly from his reported profits.

In addition to the testimony from Heacock's gambling comrades,

the government produced evidence from a police search of Heacock's

residence that was conducted on December 17, 1990. As a result of

that search--and as the result of a 1985 raid on Heacock--the

government obta ined a great deal of evidence that Heacock was

conducting ill egal gambling. Part of the evidence included

cassette recordings of illegal b ets being made. Further, the

government introduced into evidence police photographs of the scene

at Heacock's residence. In any event, this generally overwhelming

evidence concerni ng Heacock's gambling operations, served as the

basis for Heacock's indictment in October of 1992 and his ultimate

conviction.-3- II

Heacock was indicted in the Northern District of Mississippi

in an 11-count indictment charging: a scheme to conceal from the

IRS in sixteen different ways the nature and extent of his

bookmaking operation between 1980 and 1992 in violation o f 18

U .S.C. § 1001 (Count 1); a conspiracy to impede the I RS from

learning his sources and amounts of gambling income and his cash

transactions in violation of 18 U.S.C. § 371 (Count 11); conducting

an illegal gambling business with five or more persons from

October 2, 1987 to January 22, 1988, in violation of 18 U.S.C. §

1955 (Count 2); using the mail on four occasions to distribute

gambling proceeds in violation of 18 U.S.C. § 1952 (Counts 3-6);

and, finally, laundering proceeds of State RICO violations

involving gambling in violation of 18 U.S.C. § 1956 (Counts 7-10).

On Heacock's motion under Fed. R. Civ. P. 18, trial was moved

from Oxford, Mississippi to Hattiesburg, his city of residence, 250

miles away in the Southern District of Mississippi. After trial--

conducted from May 24 through June 2, 1993--the jury convicted

Heacock on all counts. On October 6, 1993, the district judge,

after finding Heacock had threatened the family of the detective

investigating him, had understated his income by over $600,000.00

and was still concealing substantial assets, nevertheless, departed

downward substantially from the guidelines and sentenced Heacock to

serve 60 months concurrently on each count and to pay a $450,000

fine. Heacock filed a timely notice of appeal.-4- III

A

On appeal, Heacock argues that there was insufficient evidence

to support his conviction under 18 U.S.C. § 1955 for operating an

illegal gambling business. In reviewing challenges to sufficiency

of the evidence, this court views the evidenc e in the light most

favorable to the jury verdict and affirms if a rational trier of

fact could have found that the government proved all essential

elements of the crime beyond a reasonable doubt. U nited States v.

Ruiz , 987 F.2d 243, 249 (5th Cir.), c ert. denied

, 114 S.Ct. 1 63;

126 L.Ed.2d 123 (1993). All credibility determinations and

reasonable inferences are to be resolved in favor of the jury's

verdict. See id.

Section 1955 defines "illegal gambling business" as

a gambling business which--

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own all or part of

such business; and

(iii) has been or remains in substantially

continuous operation for a period in exces s of thirty

days or has a gross revenue of $2,000 in a single day.

18 U.S.C. § 1955(b)(1) (emphasis added). Heacock argues that the

government failed to prove that five or more persons were involved

in aiding the conduct of Heacock' s illegal gambling business

between October 2, 1987 and January 22, 1988, as charged in the

indictment. We find, however, that the evidence sufficiently

established the "jurisdictional five."1 A bookie is not himself a bettor, but rather is a businessman

who makes his p rofit from collecting a percentage, usually 10%,

from the loosing bettors who bet through him. This percentage

collected by the bookmaker is called "juice." In order to keep

from risking hi s own money, a bookmaker must take bets from an

equ al number of winning and losing bettors. That way, he will

collect 110% of the amount he must pay out. When a bookie has more

bets on one side, and needs more on the other in order to balance

his books, the bookie will "layoff" bets to another bookie.

2 A bookmaker utilizes a "line" or point spread on each game

for which he is taking bets. As previously noted, the bookmaker

must have exactly the same amount bet on each side of the line so

that he can collect his full percentage charge from each losing bet

placed with him. Further, it is important for bookmakers to have

up-to-the-minute, accurate lines so tha t bettors cannot play one

bookmaker against another who may be giving a different line.

-5- To be counted as a part of the jurisdictional five, a person

or entity must have provided services "necessary or helpful" to the

gambling opera tion. Participants have included everything from

layoff bettors 1 and line services 2 to waitresses who serve drinks.

Only regular bettors are excluded from the count. S ee United

States v. Boyd , 566 F.2d 929, 934-35 (5th Cir. 1978).

(1)

The record reveals that in addition to Heacock, at least four

other persons were involved in the operation of the illegal

gambling business. The first was Dr. Jeffrey Topping, who was a

psychology professor at Mississippi State University in Starkville,

Mississippi, and who testified that from 1980 until gambling raids

on his home in March 1988, he opera ted a bookmaking office for

Heacock in Starkville. Heacock received his bets from "associates"

like Topping--a service that no doubt was necessary or helpful to3 "[T]he regular direct exchange of

. . . . line information

can connect otherwise independent gambling operations." S ee United

States v. Boyd , 566 F.2d at 935 (5th Cir. 1978).

-6- Heacock's operation--and no one disputes that Topping was involved

during the count two period. Heacock and Topping make two of the

jurisdictional five.

(2)

Next, United Productions, a line service from Las Vegas can be

counted as the third member of the jurisdictional five. 3 According

to testimony from bookmaking expert Tommy Patterson, up-to-date

professional line services are essential to a large bookmaker like

Heacock in operating a profitable gambling business. United

Productions was just such a service, providing "up to the second,

up to the minute" lines on current games to anyone who called them

on their "900" number. An analysis of Heacock's long-distance toll

records reflected 64 separate cal ls from Heacock's telephone

numbers to United Production's "900" number line service during the

count two time period. United Productions was an essential part of

Heacock's gambling operations and is the third member of the

jurisdictional five.

(3)

The fourth member of the jurisdictional five is another line

service from Las Vegas, known as J&J Sports Services ("J&J"), owned

by Christine Fenton. Fenton testified at trial, and she exhibited

a ready familiarity with Heacock and his business. She knew-7-

Heacock as "Wayne

- # 793," a long-time client, and her only client

in Hattiesburg, Mississippi. She produced business records showing

H eacock's address in Hattiesburg, and she testified that Heacock

used her service in all seasons except summer baseball season,

which was consistent with the testimony of other witnesses who knew

Heacock's gambling practices.

Heacock challenges J&J as a member of the jurisdictional five,

however, a rguing that there is no evidence to show that he used

J&J's line service during the count two time period, from October

1987 through January 1988. We find that the evidence is sufficient

to support the conclusion that J&J provided service to Heacock

throughout the relevant period. First, there was direct evidence

from Fenton herself that Heacock began using her service in

September of 1986, "[t]o the best of [her] knowledge."

Fenton's testimony was supported by other evidence that showed

that Heacock used J&J both before and after the relevant time

period, suggesting that it was far more likely than not that J&J

was also involved during the relevant period of time, inasmuch as

no reason was o ffered for the exclusion of such a gap in time.

Fenton testified that Heacock paid he r three hundred dollars per

month for use of her line service (which was different from United

Productions who charged its customers via a " 900" toll telephone

number), and one of Heacock's former assistants recalled that

Heaco ck paid three hundred dollars per month for line updates

during the time that she worked for him, bef ore the count two4 In further arguing that the evide nce was insufficient to

conclude that J&J provided service to him during the count two

period, Heacock points to the absence of any relevant documentary

proof. More specifically, Heacock points to the lack of phone

records showing calls to J&J. Because the other evidence

sufficient in itself to support the conclusion that J&J was

involved in Heacock's gambling business throughout the count two

period, it is irrelevant that the government did not produce yet

another piece of documentary evidence. We note, however, that the

government offered a perfectly reasonable explanation for the lack

of phone records: Unlike United Productions, which charged callers

via a "900" telephone number, J&J charged a monthly flat rate.

According to the government, customers of J&J then called an "800"

number to reach the se rvice, and "800" numbers do not appear on

phone bills.

-8- period. An actual three hundred dollar money order from "Wayne -

#793" was produced as documentary eviden ce to show that Heacock

used J&J's service after the relevant time period.

Final ly, there was testimony explaining that it would make

sense for a bookmaker to have more than one line at any given time

period, for example, both J&J and United Productions. In sum,

there was both direct and circumstantial evidence to show that

Heacock used J&J Sports Services during the count two period. We

find that evidence suffic ient to support the conclusion that J&J

Sports Services was the fourth member of the jurisdictional five. 4

(4)

The fifth member of the jurisdictional five can easily be

found in reviewing the testimony about a man named Benny Cook.

Cook, without dispute, took telephone bets using the name "Johnny"

at the time of the 1990 search of Heacock's residence. Bookie Mike

Sheffield and bettor Russ ell Stogner testified that during the5 The f ollowing exchange took place on direct examination of

Sheffield:

Q. Do you know who Johnny Williams is?

A. Yes.

Q. Who is it?

A. Bennie Cook.

Q. And how do you know that?

A. I don't --

Q. Did you ever meet him?

A. No. I talked to him over the phone. Then I

finally met Bennie and John ny, yeah. He told me

that was who had been answering the phone.

Q. Who told you that w as who had been answering the

phone?

A. I think Bennie did.

6 We could continue this count if neede d: For example, Mike

Sheffield, himself a bookmaker, testified, unequivocally, that he

placed layoff bets with Heacock during the count two period.

Q.

. . . I'm going to ask you two questions: First of

all, did you ever personally bet with Wayne

Heacock?

A. Yes.

Q. Did you ever lay off bets to balance out your

bookie business with him?

A. At times.

Q. At times. Okay. Specifically, I want to ask you

for the t i me period October 2nd, 1987, through

March of 1988 did you ever lay off bets with the

defendant during that period?

A. At different times, yes.

-9- count two period a man other than Heacock took telephone bets using

t he name "Johnny." Further, Sheffield testified that the man

called "Johnny Williams" was really Bennie Cook. It is true that

when Sheffield was asked how he knew that Johnny wa s Bennie, he

responded in a less than coherent fashion, 5 but the direct evidence

is nonetheless sufficient to find that Bennie Cook took telephone

bets for Heacock, using the name Johnny Williams, during the count

two period. 6Q. At different times?

A. Yes.

Q. But including that period of time?

A. Yes.

Q. And what would be the reason for you laying off

with him?

A. If h e had a better number on a game or if I was

overloaded on a game, I would call and place a bet

through him.

Given that Sheffield testified that he regularly placed layoff bets

with Heacock, and did so during the count two period, Sheffield

could be counted as the fifth participant in Heacock's illegal

gambling business.

-10- In sum, we find sufficient evidence to support the conclusion

that Wayne Heacock, Jeffrey Topping, United Productions, J&J Sports

Services, and Benny Cook al l participated in Heacock's illegal

gambling business by providing hi m with necessary or helpful

services during the period from October 2, 1987 through January 22,

1988, and we therefore affirm Heacock's felony gambling conviction

under 18 U.S.C. § 1955.

B

The next issue presented is one of first impression in this

circuit: Are i ntrastate mailings sufficient to invoke federal

jurisdiction under 18 U.S.C. § 1952. This question is one of law,

which we will review de novo

. In re Allison , 960 F.2d 481, 483

(5th Cir. 1992).

Heacock was convicted on counts three, four, five, and six of

the indictment for using the mail in the aid of a racketeering7 Section 1952 was amended in 1990 by relocating the reference

to the mail as follows:

Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign

commerce with intent to . . . .

-11- enterprise. Specifically, Heacock was charged with and convicted

of

willfully caus[ing] the use of the United States mail,

with intent to distribute the proceeds of a b usiness

enterprise involving gambling, that is defendant, as

apart of his bookmaking operation , did direct Jeff

Topping [his associate in Starkville, Mississippi] to

send . . . gambling proceeds to a bookmaker in Natchez,

MS.

Heacock argues that he cannot be convicted under 18 U.S.C. § 1952,

as a matter of law, for any intrastate mailings.

The mailings in question occurred between October 1987 and

January 1988. At that time, section 1952 provided:

Whoever travels in interstate or foreign commerce or uses

any facility in interstate or foreign commerce, including

the mail , with intent to--

(1) distribute the proceeds of any unlawful

activity; or

(2) commit any crime of violence to further any

unlawful activity; or

(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management,

establishment, or carrying on, of any unlawful

activity,

and thereafter performs or attempts to perform any of the

acts specified in subparagraphs (1), (2), and (3), shall

be fined not more than $10,000 or imprisoned for not more than five years, or both.

18 U.S.C. § 1952(a) (emphasis added). 78 See U.S. v. Barr y , 888 F.2d 1092 (6th Cir. 1989); U .S. v.

Riccardelli , 794 F.2d 829 (2d Cir. 1986).

-12- The Second and Sixth Circuits have addresse d this statutory

question and have reached opposite conclusions. 8 The Sixth Circuit

in Barry concluded that an intrastate mailing was not sufficient to

invoke federal jurisdiction. Barry , 888 F.2d at 1095. The Sixth

Circuit found it signific ant that the statute made reference to

facilities in int erstate commerce, as opposed to facilities o f

interstate commerce. The Sixth Circuit concluded that the word

"of" merely "identifies the facilities referred to," whereas, the

word "in" "require[s] a p articular use of a facility." I d. The

Sixth Circuit also found support for its reading in the legislative

history of the act.

The Second Circuit in Riccardelli

, on the other hand,

concluded that "Congress intended any use of the United States

mails to be sufficient to invoke federal ju risdiction under the

Travel Act." R ic cardelli , 749 F.2d at 830. The Second Circuit

reasoned that a plain reading of the Act revealed that the mailing

d id not need to be interstate: "The positioning of the phrase

`including the mail' in the statute singles out the mail for

special treatment and thus consistent w ith the historical

understanding of the United States mail, equates the use of the

mail with the use of other facilities of interstate and foreign

commerce; it does not indicate that the mailing itself must be

interstate." I d. at 861. The Second Circuit, like the Sixth-13-

Circuit, found that the legislative history of the st atute

supported its reading of the statute. I d. In sum, the Second

C ircuit found the phrase "intrastate mails" to be an "oxymoronic

juxtaposition." Id. at 830.

We agree with the result reached by Second Circuit: Section

1952 criminalizes any use of the United States mail with the intent

to distribute the proceeds of an unlawful activity. Section 1952

punishes "whoever

. . . uses any facility in interstate or foreign

commerce, including the mail." Our reading of this language leads

us to conclude that the use of "the mail" cle arly embodies and

includes the use of the United States Post Offi ce, which i s a

"facility in interstate commerce." In other words, whenever a

person uses the United States Post Office to deposit, to transport,

and to delive r parcels, money, or other material by means of the

mail, that person clearly and unmistakably has used a "facility in

interstate commerce," irrespective of the intrastate destination of

the item mailed. Accordingly, we hold that any use of the United

States mails in this case is sufficient to invoke jurisdiction9 This holding is consistent with our opinion in United States

v. Edelman

, 873 F.2d 791 (5th Cir. 1989). In E delman

, although we

did not specifically address the issue that is before us today, we

assumed that the mailing in that case invoked federal jurisdiction,

without even di scussing whether the mailing was "interstate" or

"intrastate." See id. at 794-95.

1 0 Heacock also argues on this point that the evidence was

insufficient to show that he caused the mailings. It is clear from

the record, however, that Heacock did instruct Topping to send the

particular checks. Thus, there is no lack of evidence to support

the findi ng that Heacock c aused the exchanges. Further, Heacock

argues that Topping never testified that Heacock told him to mail

the c hecks, only to s end them. The government must only show,

however, that the mail was actually used--there is no requirement

that Heacock intended for the mail to be used or even that he knew

the mail was used. S ee Edelman

, 873 F.2d at 795. It is clear from

the record that the mail was used in the present case, thus, there

is suff icient evidence to uphold Heacock's convictions under §

1952.

-14- under 18 U.S.C. § 1952, 9 notwithstanding the intrastate destination

of the mailings. 10

C

Finally, in addition to the more substantive complaints

discussed above, Heacock argues that the district court committed

a gaggle of other errors. We have reviewed each of Heacock's

arguments and have concluded that the district court committed no

reversible error in the present case. Accordingly, we affirm the

district court on all of the following issues:

(1)

First, Heacock complains that the prosecutor told the jury in

opening statement that Heacock furnished drugs to his ex-1 1 His actual stateme nt was that "[Heacock] i ntroduced

[Cunningham] to narcotics."

-15- girlfriend, Lisa Cunningham. 11 Heacock says that this statement was

totally false. Further, according to Heacock, the court's curative

a ction was ineffective and implied that Heacock was using drugs.

The essence of the government's opposition to this appeal is that,

to begin with, there was no prosecutorial misconduct in making this

true statement, and that given the overwhelming nature of the

evidence, an isolated mention of drugs had no impact whatsoever on

the outcome of the trial.

A motion for mistrial based on an alleged prejudicial comment

by the p rosecution, is reviewed under the abuse of discretion

standard. U .S. v. Bentley-Smith

, 2 F.3d 1368, 1378 (5th Cir.

1993). The test for assessing claims of prejudice from

prosecutorial conduct is (1) the degree of initial prejudice; (2)

the effectiveness of corrective measures; and (3) the strength of

the government's other evidence. U .S. v. Georgalis

, 631 F.2d 1199

(1980), and U.S. v. S emensohn , 421 F.2d 1206 (2d Cir. 1970). In

the light of the government's overwhelming evidence of guilt, and

in the light of the fact that the jury heard only one sentence

concerning drugs from the prosecutor, followed by a very clear

instruction that drugs were irrelevant to the case, it is clear to

us that the district court did not abuse its discretion by failing

to award a mistrial in this instance, even if we assume that the

prosecutor's statement amounted to prosecutorial misconduct.-16- (2)

Heacock's next complaint of prosecutorial misconduct involves

a revolver. In the 1990 search, according to Heacock, the police

rem oved a revolver from a lower desk drawer, placed it into an

upper desk drawer, and partially opened the drawer so that they

could make a photograph of the revolver. At trial, Heacock

objected to Officer Cox's testifying that there was a revolver in

the desk drawer, and the court sustained Heacock's objection. At

that time, the prosecutor informed the court that photographs of

the revolver in the desk were included in a series of photographs

of the 1990 search, and asked, "Should we cut out the ones with the

firearms in them?" The court responded, "Yes."

The photographs were later introduced into evidence. Instead

of removing all of the pictures that included the revolver,

however, the prosecutor "amended" one picture by cutt ing the

revolver out of the photograph. The photographs, including the

"amended" one, were immediat ely published to the jury. Heacock

moved for a mistrial, and, in response, the "amended" photograph

was withdrawn from the exhibits.

Again, the test for assessing claims of prosecutorial

misconduct require that we determine whether the alleged misconduct

was prejudicial in the light of the other evidence from trial. We

conclude that the introduction of one "amended" photograph, which

was later withdrawn from the exhibits, could not be prejudicial in12 Section 3282 provides that

Except as otherwise expressly provided by law, no

person shall be p rosecuted, tried, or punished for any

offense, not capital, unless the indictment is found or

the information i s instituted within five years next

after such offense shall have been committed.

18 U.S.C. § 3282.

-17- thi s case with such an overwhelming set of incriminating facts.

There was no abuse of discretion here.

(3)

Heacock next argues that all of the evidence introduced at the

trial that was obtained from the 1985 search of his residence

should have been suppressed because the indictment was brought more

than five years after the evidence was obtained. See 18 U.S.C. §

3282. 12 We have previously held, however, that section 3282 "is a

defense to prosecution, not a rule of evidence." U nited States v.

Ashdown

, 509 F.2d 793, 798 (5th Cir. 1975). Furthermore, the

statute of limitations does not b egin to run on a "scheme" crime

(count one charged a scheme to conceal in violation of 18 U.S.C. §

1001), until each overt act constituting the scheme has occurred,

because the case cannot be brought and proved until that time.

United States v. Girard , 744 F.2d 1170 (1984) (if any overt act

that furthers the purpose of a conspiracy occurs within the

limitations period, including an act of concealment, then the

indictment is timely).1 3 Heacock admits that the evidence was properly admitted in

c ount 11 of the indictment, which was a conspiracy to impede the

IRS from learning his sources and amounts of gambling income and

his cash transactions in violation of 18 U.S.C. § 371. He asserts,

however, that the evidence from the 1985 search should have been

suppressed for the purposes of count 1 (which was a s cheme to

conceal from the IRS in sixteen different ways the nature and

extent of Heacock's bookmaking operation between 1980 and 1992 in

violation of 18 U.S.C. § 1001), citing U.S. v. Smith

, 740 F.2d 734

(9th Cir. 1984), for the proposition that the five-year limitations

period does apply to § 1001. That case is properly distinguished

from the present case, however, because it related to the false

statements section of § 1001, and the present case relates to

continuing schemes to defraud

.

-18- In the present case, the prosecution coupled the 1985 evidence

that Heacock was involved in gambling with other proof to show that

Heacock was concealing from the IRS in sixteen different ways the

nature and extent of his bookmaking operation between 1980 and

1992. Thus, in this case where the evidence from before the

limitations period bears on the existence of the scheme to defraud,

the evidence was properly admitted at trial. U .S. v. Ashdown

, 509

F.2d at 797-98. 13

(4)

Heacock next argues that his Fifth Amendment right against

self-incrimination was violated when his own tape recordin gs of

betting activity and his federal tax returns were introduced into

evidence against him. He argues that the tape recordings were

daily records of his gambling activity, which the government

required him to keep, and that his tax returns were also documents

that the government compelled him to prepare and file.-19-

It is well settled that in order to assert a Fifth Amendment

claim of this nature, Heacock would have been required to assert a

privilege at t he time he kept his records and filed his return.

U.S. v. Haydel , 649 F.2d 1152, 1159 n.13 (5th Cir. 1981). To put

Heacock's argument in its best light, however, we will construe

this claim as an appeal under 26 U.S.C. § 4424, pursuant to which

Congress granted taxpayers immunity from prosecutorial use of such

tax information, except "in connection with the

. . . criminal

enforcement of any tax imposed by . . . title [26] ." 26 U.S.C. §

4424(c).

Nonetheless, Heacock's claim still falls short of requiring

reversal of the district court. First, as to the disputed tape

recordings, Heacock stipulated that his recording and maintaining

of the tapes were not required by law. As such, there can be no §

4424 violation. S ee U.S. v. Aucoin

, 964 F.2d 1492, 1500 (5th Cir.

1992). Accordingly, the district court made no error in

determining that these tape recordings of bets were not kept for

lawful purpose but for unlawful purpose of "settling up" with

bettors.

Second, with respect to the introduction of Heacock's gambling

tax returns (as well as the t ape recordings), 26 U.S.C. § 4424

provides that required records can be used "in connection with the

. . . criminal enforcement of any tax imposed by

. . . title [26]."

Count one of the instant indictment (which was a scheme to conceal

from the IRS in sixteen different ways the nature and extent of14 The prosecution did establish that the police knew Heacock

was home, and that he did not respond to their knock, and that in

such circumstances evidence is often being destroyed.

15 Detective Lt. Richard Cox testified about that search that

he first knocked on the door, yelled "police" loud enough for

Heacock to hear, and when there was not response after a reasonable

wait, he had Officer Ladnier "hit" the door, but Ladnier bounced

off. Cox then pounded several times on the door, repeatedly

yelling "police, police, police," but still no one responded, so he

had Ladnier, a large man, knock it open.

-20- Heacock's bookmaking operation between 1980 and 1992 in violation

of 18 U.S.C. § 1001) and count eleven of the indictment (which was

a conspiracy to impede the IRS from learning his sources and

amounts of gambling income and his cash transactions in violation

of 18 U.S.C. § 371) both constitute such a criminal enforcement of

a tax. Accordingly, the judgment of the district court is affirmed

on this issue.

(5)

The next issue presented is whether the district court abused

its discretion in failing to apply the knock and announce rule to

exclude evidence seized in the 1990 search of Heacock's residence.

According to Heacock, in the 1990 search the police knocked his

door down even though the police admitted that they did not fear

any injury from Heacock and that they had no particular reason to

believe that he personally would destroy evidence. 14 It is further

undisputed that the police officers did not announce the purpose of

their search prior to knocking the door down. 15 Heacock argues,

th erefore, that the evidence obtained in the 1990 search should16 Section 3109 provides:

The officer may break open any outer or inner door or

window of a house, or any part of a house, or anything

therein, to execute a search warrant, if, after notice of his

authority and purpose, he is refused admittance or when

necessary to liberate himself or a person aiding him in the

execution of the warrant.

18 U.S.C. § 3109.

-21- have been suppressed because of the violation of the knock and

announce rule.

There is no question but that 18 U.S.C. § 3109 requires that

the police knock and give notice of authority and purpose before

forcible entry to one's premises. 16 The government, however, points

out that the 1990 search of Heacock's gambling premises was by

state officers under a state warrant , and, argues that the search

was not subject to federal procedures merely because one federal

agent was present. The government further argues--and the district

court concluded--that the state search was constitutionally

"reasonable" because the officers knocked and a n nounced their

presence several times befor e forcible entry, which was

accomplished to prevent destruction of evidence.

In view of the fact that 18 U.S.C § 3109 has no application to

a state search, the question becomes whether the Fourth Amendment

itself re quires that police announce their "purpose" before

forcible entry. It is clear that the ultimate question under the

Constitution is simply whether the search is "reasonable." Given

the fact that the police clearly made their presence known before-22-

taking any forcible action, and given the possibility that a longer

wait might well have resulted in the destruction of evidence, we

cannot say that the district court abused its discretion in

determining that the search in this case was reasonable.

(6)

Heacock, in an argument that mi ght be described as lacking

legal reasoning, contends that the evidence seized in the 1990

search should be suppressed because the state had no ownership

claim to the property. It seems that the seized evidence was also

the subject of a civil forfeiture proceeding in state court, and

the state court had ordered the civil fo rfeiture proceeding

dismissed. Heacock argues, therefore, that the police had no right

to pos sess his personal property since no criminal charges were

pending, and had no right to copy any tapes or keep any other items

in the face of the court order dismissing the civil forfeiture

proceeding. We reject this contention because Heacock has

presented absolutely no authority in his one-page argument on this

point. Consequently, this point has effectively been abandoned for

the purposes of this appeal. L &A Contracting v. Southern Concrete

Services , 7 F.3d 106, 113 (5th Cir. 1994).

(7)

Finally, Heacock next argues that the government should have

been estopped fro m prosecuting him for money laundering under 18

U .S.C. § 1956 because he had a tax wagering stamp, fi led his

monthly 730 tax returns, and paid the government a two percent17 T his activity was a felony under the Mississippi RICO

statute. See, i nfra

, part (8). Heacock argues that his money

laundering conviction should be overturned because the Mississippi

RICO statute, on which the money laundering conviction was based,

is unconstitu tional. Heacock argues that the Mississippi RICO

statute denies due process because it elevates a series of two

misdemeanor gambling offen ses to a felony, and he argues that

punishment under the Mississippi RICO statute amounts to cruel and

unusual punishment, given that it involves unnecessary and wanton

infliction of pain, is grossly disproportionate to the severity of

the crime, and is without penalogical justifica tion. This

argument, supported by no authority, on its face is meritless if

not frivolous.

1 8 Although Heacock argued in his original brief that th e

district court violated the rule against doub le jeopardy in this

case, Heacock abandoned this claim in his reply brief. He insists,

instead, that he intended to pursue this claim as one of vindictive

prosecution. First of all, any issue raised for the first time in

the reply brief is waived. U .S. v. Miller

, 952 F.2d 866, 874 (5th

Cir. 1992) Furthermore, there is no evidence to support this claim

of vindictive prosecution.

-23- excise tax. It is clear, however, that "the payment of any tax

imposed [on gamblers] with respect to any activity shall not exempt

any person from any penalty provided by a law of the United States

or of any State for engaging in the s ame activity." 26 U.S.C. §

4422. Furthermore, 18 U.S.C. § 1956 punishes those who launder

money derived from "unlawful activity." Given that Heacock's

activities were "unlawful" under state law, 1 7 and given that

Heacock's estoppel argument is absolutely rejected by the Internal

Revenue Code, this argument is meritless. 18

IV

We conclu de that the judgment of conviction in this case

contains no errors. The evidence fully supports Heacock's

conviction under 18 U.S.C. § 1955 for operating an illegal gambling-24-

business with five or more persons. Further, we hold that any use

of the United States mail is sufficient to invoke federal

jurisdiction under 18 U.S.C. § 1952, notwithstanding the intrastate

destination of the mailings in this case. Finally, we conclude

that Heacock's several other points of error have no merit.

Consequently, we hold that the judgment of conviction is errorfree, and therefore

A F F I R M E D.