Beruflich Dokumente
Kultur Dokumente
2d 653
Anthony D. Miele, Fierro & Miele, Williamsport, Pa., and Arthur K. Dils,
Harrisburg, Pa., for appellants.
John J. Robinson, Appellate Section, Crim. Div., U. S. Dept. of Justice,
Washington, D. C., for appellee.
Before ALDISERT, MAX ROSENN and HUNTER, Circuit Judges.
OPINION OF THE COURT
MAX ROSENN, Circuit Judge.
The Cerasos and Troutman have filed separate briefs on this appeal, so that
some questions have been raised only by the Cerasos or Troutman, but not by
both. However, they join in their first contention that the Government failed to
prove a violation of Section 1955 and that the verdict was against the weight of
the evidence. On reviewing the motion for acquittal, "[t]he verdict of a jury
must be sustained if there is substantial evidence, taking the view most
favorable to the Government. . . ." Glasser v. United States, 315 U.S. 60, 80, 62
S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Blair, 456 F.2d 514, 517
(3d Cir. 1972).
3
At trial, tapes of the conversations were played for the jury and Special Agent
Charles Fahien of the FBI identified the voices that had been recorded. The
Cerasos regularly took bets, and Troutman regularly relayed the line to them.
The Cerasos then transmitted the information to others. In addition, there was a
regular series of lay off bets between the Cerasos and Troutman.
In order to prove that Section 1955 was violated, the Government must show
not only that there was a gambling operation in violation of state law, but that it
was conducted, financed, managed, supervised, directed, or owned by at least
five people and that it operated substantially continuously for at least thirty
days or had more than $2000 gross revenue in any single day.
8
Appellants first argue that the Government failed to show the requisite five
people conducting, financing, supervising, directing, or owning the operation.
They point out that when the statute originally passed the Senate on January
26, 1970, it stated that five people need merely participate in the gambling.
However, that language was later dropped in the final bill, indicating that
anyone merely placing a bet could not be counted as one of the five people who
had to be involved in the operation. Starting from this point, appellants argue
that at best the Government proved that only two people, Thomas and Beverly
Ceraso, conducted the bookmaking.
The evidence indicated that a jury could reasonably have found otherwise.
Troutman and Joseph Casale both gave information on the "betting line" and
took bets. Those acts are clearly within the concept of conducting a bookmaking operation. Although "conduct" is nowhere defined in the statute, the
authors of simultaneously-enacted 18 U.S.C. Sec. 1511, which was to parallel
Section 1955, intended "conduct" to mean any participation in the operation of
a gambling business. H.R.Rep.No.91-1549, 91st Cong. 2d Sess. (1970), 1970
U.S.Code, Cong. & Admin.News, pp. 4029-30. See, United States v. Becker,
461 F.2d 230, at 232 (2d Cir. filed May 30, 1972), United States v. Riehl, 460
F.2d 454 (3d Cir. filed May 9, 1972).
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Becker's payment of the telephone bills could have reasonably been found to
have made him one of the financial backers of the operation, or at least a
participant, and Bosch's conduct in receiving information and giving
instructions to Thomas Ceraso gave the jury evidence of his supervising or
managing the operation.
11
The appellants next argue that the district court was in error in charging that the
"gross revenue" specified in the statute means the total of the wagers placed
during a day. They contend that the proper definition of the term is the amount
of profit received during the period. If they are correct, then the Government
failed in its proof on this point because it only adduced evidence that some
$6320 was wagered during February 20, 1971.
12
The legislative history indicates that Congress contemplated that the $2000
figure would refer simply to the amount wagered in any one day. Throughout
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16
17
Appellants' next point of attack is the decision of the district court barring them
from contesting the validity of the wire-tap application and order from which
came much of the incriminating evidence used at trial. The appellants did not
attack the wire-tap order prior to trial. On January 24, 1972, they filed a posttrial motion to suppress the evidence on the ground that the authorization did
not meet the requirements of 18 U.S.C. Sec. 2516(1).10 The Government
opposed the motion as untimely under F.R.Crim.P. 41(e). Appellant failed to
respond. The district court thereupon found the motion untimely.
19
F.R.Crim.P. 41(e) states that "[t]he [suppression] motion shall be made before
trial or hearing unless opportunity therefor did not exist or the defendant was
not aware of the grounds for the motion, but the court in its discretion may
entertain the motion at the trial or hearing." The clear implication of the
language of the rule, and the requirements of any efficient judicial system,
necessitate strict adherence to this rule in any but the most unusual
circumstances. Bartlett v. United States, 317 F.2d 71 (9th Cir. 1963), cert.
denied, 375 U.S. 847, 84 S.Ct. 102, 11 L.Ed.2d 75 (1964); United States v.
Nirenberg, 19 F.R.D. 421 (E.D.N.Y.1956). The district court found no such
mitigating factors present in this case, and appellants have presented none to us
21
22
The order denying the motions for a new trial and the motion for acquittal will
be affirmed.
See, e. g., Remarks of: Congressman Poff, 116 Cong.Rec. 35294 (1970);
Senator Allott, 116 Cong.Rec. 603-04 (1970); Senator Byrd, 116 Cong.Rec.
606 (1970); Senator McClellan, 115 Cong.Rec. 5873 (1969), 116 Cong.Rec.
590 (1970)
S.Rep.No.91-617, 90th Cong. 1st Sess. (1969), which accompanied S. 30, the
original version of the Act, acknowledged that it was difficult to prove the
proportion of the total operations of a gambling enterprise
Justice Douglas, writing for the Supreme Court in Perez v. United States, 402
U.S. 146, 155, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), notes specifically that
Congress relied at least in part on the statistics and conclusions of the Report
by the President's Commission on Law Enforcement and Administration of
Justice entitled The Challenge of Crime in a Free Society. He found that the
information presented was sufficient to sustain Congress' conclusion that such
activities affected interstate commerce. The same information was relied on by
the Congress in writing the gambling provisions of the Organized Crime
Control Act of 1970 at issue here. There is no reason to consider the report any
less probative value in the area of gambling, so that the Supreme Court's
approval of the findings in Perez could largely answer any questions raised in
The Organized Crime Control Act of 1970, 84 Stat. 922, sets forth the
Congress' findings about the pervasive effect of organized crime on interstate
commerce: "The Congress finds that (1) organized crime in the United States is
a highly sophisticated, diversified, and widespread activity that annually drains
billions of dollars from America's economy by unlawful conduct and the illegal
use of force, fraud, and corruption; (2) organized crime derives a major portion
of its power through money obtained from such illegal endeavors as syndicated
gambling, loan sharking, the theft and fencing of property, the importation and
distribution of narcotics and other dangerous drugs, and other forms of social
exploitation; (3) this money and power are increasingly used to infiltrate and
corrupt legitimate business and labor unions and to subvert and corrupt our
democratic processes; (4) organized crime activities in the United States
weaken the stability of the Nation's economic system, harm innocent investors
and competing organizations, interfere with free competition, seriously burden
interstate and foreign commerce, threaten the domestic security, and undermine
the general welfare of the Nation and its citizens; and (5) organized crime
continues to grow because of defects in the evidence-gathering process of the
law inhibiting the development of the legally admissible evidence necessary to
bring criminal and other sanctions or remedies to bear on the unlawful
activities of those engaged in organized crime and because the sanctions and
remedies available to the Government are unnecessarily limited in scope and
impact."
Remarks of Senator Allott, 116 Cong.Rec. 604 (1970), dealt with the effect on
interstate commerce:
In addition to being largely the creature of organized crime and its principal
source of revenue, illegal gambling both involves and affects interstate
commerce. People, information, funds and paraphernalia, without which
gambling enterprises could not be conducted, move regularly across interstate
lines. Moreover, by diverting expenditures from ordinary lines of commerce
into its own coffer, gambling distorts the production of goods for commerce
and the flow of goods in interstate commerce. These interstate aspects of
gambling make it an appropriate subject of concern to the Federal Government.
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