447 F.2d 940 (9th Cir. 1971), 293, United States v. Donaway

Docket Nº:293.
Citation:447 F.2d 940
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Wayne DONAWAY, a/k/a Babe Donaway, Defendant-Appellant.
Case Date:August 27, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 940

447 F.2d 940 (9th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,

v.

Wayne DONAWAY, a/k/a Babe Donaway, Defendant-Appellant.

No. 293.

United States Court of Appeals, Ninth Circuit.

Aug. 27, 1971

Page 941

Stephen Miller (argued), of Miller, Glassman & Browning, Beverly Hills, Cal., for defendant-appellant.

Gerald F. Uelmen, Asst. U.S. Atty. (argued), Robert L. Meyer, U.S. Atty., David R. Nissen, Chief, Crim.Div., Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS, HUFSTEDLER and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

In a ten-court indictment, Donaway and eight others were charged with interstate transmission of wagering information (18 U.S.C. § 1084), transmission in aid of gambling (18 U.S.C. § 1952), and conspiracy to violate the federal bribery statute (18 U.S.C. § 224), and §§ 1084 and 1952. The conspiracy count was dismissed as to all but two defendants. Donaway was convicted on the remaining two counts. The conviction of defendant Swank has been affirmed on appeal. United States v. Swank, 441 F.2d 264 (9th Cir. 1971). The opinion in Swank and in United States v. Brandyberry, 438 F.2d 226 (9th Cir. 1971) ,

Page 942

provide factual background which we need not repeat here, although appellant Donaway was not mentioned in either opinion.

Donaway raises several issues, of which we consider three to be significant. Our disposition of those makes it unnecessary to discuss the others. First, was Donaway's joinder in the indictment improper and, if initially proper, did the district court abuse its discretion in denying several motions to sever? Second, was the language of 18 U.S.C. § 1084 1 intended to cover persons who merely bet at licensed pari-mutuel betting enterprises at racetracks, where such betting is legal under state law? Third, was the evidence sufficient to establish that appellant promoted a business enterprise involving gambling offenses within the meaning of 18 U.S.C. § 1952? 2

From our earlier dispositions in Brandyberry and Swank, it will be seen that Donaway's co-defendant Swank was the hub in a wheel of activity involving 'fixed' horse races. He had contacts wit horse owners, racetrack employees, trainers and bookmakers and acquired valuable information that made betting at the track's pari-mutuel windows much too tame for him. He bet instead through off-track bookmakers, including one Lawler who was granted governmental immunity and forced to testify.

Swank bet so heavily that Lawler protected himself by 'laying off' or spreading all or part of the bets with other bookmakers. Although two weeks of advance notice was required for this purpose, Lawler did not know which race or horse would be involved until just before the start of the race. This kept the word from spreading and affecting the track odds. See United States v. Swank, supra.

The evidence demonstrated that Swank had operated his scheme effectively as to five horses. As to three of the...

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