Silverman v. United States, 15186

• Decision Date: 04 February 1960
• Docket Number: 15258,15259.,No. 15186,15186
• Citation: 275 F.2d 173
• Parties: Julius SILVERMAN, Appellant, v. UNITED STATES of America, Appellee. Meyer SCHWARTZ, Appellant, v. UNITED STATES of America, Appellee. Robert L. MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

275 F.2d 173 (1960)

Julius SILVERMAN, Appellant, v. UNITED STATES of America, Appellee.

Meyer SCHWARTZ, Appellant, v. UNITED STATES of America, Appellee.

Robert L. MARTIN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15186, 15258, 15259.

United States Court of Appeals District of Columbia Circuit.

Argued September 18, 1959.

Decided February 4, 1960.

Petition for Rehearing Denied March 8, 1960.

Mr. Edward Bennett Williams, Washington, D. C., with whom Mr. Thomas A. Wadden, Jr., and Miss Agnes A. Neill, Washington, D. C., were on the brief, for appellants.

Mr. Thomas A. Flannery, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, WASHINGTON and DANAHER, Circuit Judges.

Petition for Rehearing En Banc Denied March 8, 1960.

DANAHER, Circuit Judge.

Appellants were jointly indicted on four counts charging, in one respect or other, violation of the District of Columbia Code proscribing gambling,¹ and on a fifth count which charged they had engaged in the business of accepting wagers without having paid the special tax required by the Internal Revenue Code.² They were acquitted of the charges in the fourth and fifth counts. Each appellant was sentenced to serve on the first and third counts, a term of imprisonment of nine months and to pay a fine of $500, and to serve on the second count a term of imprisonment of twenty months to five years. The sentences are to run concurrently. All were admitted to bail pending appeal.

I.

Although appellants ask that the judgments of conviction be reversed as to the first and third counts, they particularly insist that a judgment of acquittal must be directed as to the second count.³ They argue as to the latter, that the conviction "was vitiated by the absence of any physical device or place to which the public was invited."⁴

We reject this contention on the authority of Beard v. United States.⁵ The only substantial difference between the "syndicate" operation in the Beard case and that conducted by these appellants is that Beard involved betting on horse races whereas the betting here was on prize fights and baseball games.

Plummer v. United States,⁶ relied upon by appellants is clearly distinguishable on its facts as to appellant Plummer. The latter, a waiter in a well-known restaurant, simply placed bets for his customer with a "bookie" who sometimes frequented the place. We said the waiter was merely an accommodation intermediary. He had not set up the luncheon table as a gambling device or gaming table, we pointed out. The waiter's "complaisant" amiability did not make of him a felon.

Here, on the other hand, the evidence clearly shows that these three appellants were operating a betting office where they received wagers, established records of the wins and losses and kept accounts of their operations. That their activities were conducted by telephone is of no moment whatever. It is true that the public was excluded from their gambling office headquarters, but there is no requirement in the statute that the premises be open to the public. The statute defines as a felony not only the setting up of a gaming table, but the keeping of any house or place for the purpose of gaming. It reaches any operator who would permit any person to bet "on the side of or against the keeper thereof." The facts show that appellants accepted bets against themselves. The photographic exhibits in the record before us disclose a scene of operations designed completely to facilitate the activities in which appellants were engaged.

We have examined the betting slips, the tally of wins and losses, and the records of the "line" of betting odds on various sports events. Bets ran into the thousands of dollars, one, for example, of $5,000 on April 23, 1958, that Detroit would win over Kansas City. Some 55 bet slips were recovered which were interpreted in the evidence as disclosing total bets in excess of $37,000 which were involved in the play on April 30, 1958. For part of one day "the house" — appellants' — paid out bets to players who had won the sum of $14,454, while appellants received a profit for that part day of $13,474. We have more particularly hereinafter noticed and taken account of other physical aspects of the major gambling operation conducted by the appellants. It would be sheer sophistry to say that some poolroom operator taking bets on horse races would be guilty under section 22-1504, or some numbers player could be convicted of accepting plays in the rear of a lunch room⁷ while these "big time" gamblers could go free because they conducted their activities over the telephone. The law commands no such absurd result nor do our cases suggest it.

II.

Appellants also claim that a new trial must be granted in the interest of justice pursuant to Fed.R.Crim.P. 33, 18 U.S.C. in that the guilty verdict as to the first three counts is "clearly and irreconcilably inconsistent"⁸ with their acquittal under counts four and five. They claim that an acquittal on the fourth count amounts to a jury finding that appellants did not accept wagers and that they "could not be guilty of keeping a gaming table and maintaining a gambling premises * * * unless they accepted wagers." In like vein, since "the evidence is uncontroverted" that appellants did not pay the tax required by the Internal Revenue Code of persons engaged in accepting wagers, "their acquittal under count five amounts to a finding that they did not accept wagers," and "precisely the same activities were relied upon under all five counts of the indictment."

Again, we reject appellants' claim. As Judge Keech pointed out in United States v. Daigle,⁹ rational consistency in a jury's verdict on each of several counts is not necessary. We need not here make further reference to the authorities he cited and which well establish the point.

III.

On April 30, 1958, Metropolitan police officers and special agents of the Intelligence Division of the Internal Revenue Service converged on the row houses XXX-X-X-X-XX Twenty First Street, N.W., roughly across from the State Department. Appellant Silverman came out of No. 408. Silverman was placed under arrest by an officer who identified himself, informed Silverman that he had a warrant for his arrest and that the officers had a search warrant authorizing a search of the premises at No. 408-21st Street. Silverman produced a key ring, selected a key to fit the front door and unlocked the door. Officers with arrest warrants for Schwartz and Martin entered the premises and went to the second floor where the latter appellants were located in the front room. Schwartz and Martin also had keys to the front door of No. 408, and each had a key to a special lock on the door of the room in which they were found.

This was no private dwelling, but a betting business office. Large sections of black cloth covered the windows in that room. Two tables, side by side, filled the wall space between the front wall of the room and a closet. On the tables were three telephones, bearing numbers DIstrict 7-3554, DIstrict 7-3555 and DIstrict 7-3556, equipped with an automatic changeover device. Covering the entire wall between No. 406 and No. 408, behind the tables and the telephones, was a large rug.

Other equipment included pads of paper, pencils, a filing cabinet, "line" sheets listing sports events and betting odds quoted with reference thereto, a bundle containing 55 bet slips representing bets which had been accepted on various baseball games played on April 30, 1958, and two slips on which had been recorded bets accepted on a prize fight.

The total bets thus recorded ran to $37,950. The "house" was shown, according to the testimony of an expert, to have had total winnings of $27,928 derived from various plays over part of the day.

Yet other exhibits of record included a tally sheet of bettors, or players who had telephoned in their bets. Amounts listed opposite their names in certain cases had been ringed in red pencil. Such entries indicated losses to the house, or as the expert put it, amounts owed by the house to a particular named player.

Over the 2½ hours or so as the officers listed the results of their search, the telephones rang continuously. The calls were accepted by the police who supplied inquirers with the odds on such sporting events as were made the subject of the calls. Some of the callers asked specifically for one or another of the appellants and were given the information that they were not "available" so that the caller hung up.

Inspector Layton, testifying as an expert, traced out for the jury the significance of the bets, the relationship of $600 put up to win $500, for example; how odds were to be interpreted if a player put up $1,000 to the "house's" $1,350; what it meant if a player was told to "pick'em," and, generally, how the bets were handled. Also in the room was a perforated metal basket bearing charred remains of burned paper.

No special purpose will be served by more extended reference to the scope of the betting operations as described by the officers. For how long and at the rate of just how many thousands of dollars per day the enterprise had continued could only be a matter of surmise. It was clear, however, that Martin had a year's written lease to No. 408 which had been executed October 18, 1957. He continued until November, 1958, to pay the rent to Woodward and Norris. Detailed testimony as to betting activities became available at trial as to the period of April 21, 1958 to April 30, 1958 during which the gambling establishment was under surveillance for several hours on each of several days.

All such evidence clearly and overwhelmingly proved that the three appellants had maintained and operated that gambling establishment over the period named. There would be no question as to affirmance of their convictions on all three counts before us...