477 F.2d 974 (4th Cir. 1973), 71-2077, United States v. Bobo

Docket Nº:71-2077, 71-2078, 71-2079.
Citation:477 F.2d 974
Party Name:UNITED STATES of America, Appellee, v. John Jacob BOBO et al., Appellants.
Case Date:April 23, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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477 F.2d 974 (4th Cir. 1973)

UNITED STATES of America, Appellee,

v.

John Jacob BOBO et al., Appellants.

Nos. 71-2077, 71-2078, 71-2079.

United States Court of Appeals, Fourth Circuit.

April 23, 1973

Argued Nov. 3, 1972.

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William B. Long, Jr., Greenville, S. C. (Thomas W. Whiteside, Spartanburg, S. C., on brief), for appellant John Jacob Bobo.

Albert Q. Taylor, Jr., Greenville, S. C., for appellant Jack M. Gray.

Klyde Robinson, Charleston, S. C., and Geddes H. Martin, Columbia, S. C., for appellants William Duward McEwen and Paul Goldberg.

Oscar W. Bannister, Jr., Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge.

WIDENER, Circuit Judge:

Appellants Jack M. Gray and John Jacob Bobo were convicted for violation of 18 U.S.C. § 1952 on indictments charging that they used mail telephone facilities and Western Union teletype services in interstate commerce with intent to promote, manage, establish and carry on an unlawful activity, that being a business enterprise involving gambling in violation of the laws of the State of South Carolina.

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Appellants Jack M. Gray, John Jacob Bobo, William Duward McEwen and Paul Goldberg were convicted for conspiracy to conduct, finance, manage, supervise, direct or own an illegal gambling business involving five or more persons within the meaning of 18 U.S.C. § 1955. Another defendant, Porter, was convicted for the substantive violation of 18 U.S.C. § 1955. After this appeal was taken, Porter moved for voluntary dismissal of his appeal, which motion was granted. Certain other co-defendants pleaded guilty to these same violations, while other co-defendants pleaded guilty to violations of 18 U.S.C. § 1084. (§ 1084 relates to interstate transmission of wagering information.)

The proper disposition of these appeals lies in the quagmire of facts involved. While the facts surrounding each allegation can best be considered separately, a basic outline is necessary for understanding the contentions raised on appeal.

Appellant Jack Gray was a New York resident, where he occasionally placed small bets with local bookmakers. He was transferred by his employer to Greenville, South Carolina, nine or ten years ago. Unable to locate a South Carolina bookmaker for approximately three years, Gray continued placing bets, through friends, with New York bookmakers. Gray located appellant Porter, with whom he began betting locally, and also Bobo, with whom he began betting in Spartanburg, South Carolina.

Appellant Bobo and his helper, Kirkland, communicated and exchanged bets not only with Gray and his helper, Segan, but also with appellant Porter in Greenville and with appellants McEwen and his helper, Goldberg in Charleston, South Carolina. It should be noted here that all appellants, except Gray, admit to be bookmakers receiving and making bets on athletic contests, in violation of state law, for a time period and in a dollar amount sufficient to meet the specific requirements of 18 U.S.C. § 1955. They do, however, contend that they did not act together so as to constitute a business involving five or more persons, which is also required by the Act. Gray contends that he is a mere bettor with a system and not a bookmaker.

During the period October, 1970 through January, 1971, appellants McEwen and Goldberg, by their own admission, operated, in violation of state law, a bookmaking establishment known as the Uptown Sports Center, 476 King Street, in Charleston, South Carolina. They had so operated for several years and were generally known in Charleston as bookmakers. They normally received bets from their customers, some of whom were bookmakers, and they in turn placed bets with other persons and sometimes those others were bookmakers.

The appellants tried to bet by a system, each with his own refinements. Gray developed a system whereby he could not lose. He might not always win, but he could not lose. Gray noticed that the betting line out of New York and the line out of South Carolina would fluctuate. The line is a point spread between teams in an athletic contest, which is determined by the bookmaker or makers offering the bet. The line might come from New York at, say, New York plus seven points in a game between New York and Dallas. But Gray noticed that up until game time the line would fluctuate in different places, particularly where local prejudices would influence the betting. The variation Gray first observed was the line in New York to be Dallas plus 2 1/2 and the South Carolina line to be New York plus 2. By betting both sides, if the game score differential was zero to four points, he would win both bets. In fact, the game ended 13-13, so Gray did win both bets (commonly called a split bet). Gray realized that he could, by taking advantage of the local variation in the line, increase his chances of winning over that of a bettor merely using a single bookmaker in one area. When Gray located Bobo in Spartanburg, he then had access to two or three New York

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lines and Bobo's and Porter's lines in South Carolina.

Gray further refined his system by obtaining an additional advantage from a New York bookmaker. If Gray would agree to bet $500 per game on all 13 pro-football games played over the weekend, the New York office would give him a 1/2 point advantage from the line. By obtaining the same concession from Bobo in South Carolina, he was in a position to bet both sides of a game, with an additional point variation plus any difference already existing in the several lines. Bobo further fit into the scheme as follows: Gray was required to bet $500 on each game being played in order to acquire his concession of 1/2 point. Gray, like any other bettor, had to pay the vigorish 1 on his losing bets. Gray agreed to pass on wagers from Bobo when the wager sought by Bobo was a wager that Gray could make under his system. Thus, Gray fulfilled his obligation for total number of bets, and since it was Bobo's bet he placed, he eliminated the possibility of losing the 10% vigorish in the event of the loss, and would win both sides if the score fell within the point spread. This also facilitated Bobo's efforts to balance his books prior to the weekly games.

Gray would also take what are called juice bets from appellant Porter. It appeared that Porter's specialty was his superior ability to predict scores based on his knowledge of the teams involved. A juice bet is a bet very likely to win because of information known to the better which, if known to the bookmaker, would change the odds or the bookmaker would not offer the bet at all.

These appellants have raised a total of nine allegations and each appellant states in his brief that he incorporates and adopts any of the legal arguments of the others which might inhere to his benefit. While we do not normally consider it our obligation in a case of multiple appeals to weed out which arguments best fit the various appellants, the consideration of each argument shall, unless otherwise stated, apply to each appellant.

I

During the course of the investigation and prosecution of this case, the government made extensive use of information gathered by the use of wiretaps. With regard to these wiretaps, the appellants make the following allegations:

1. The provisions of Title III of the Omnibus Crime Control Act of 1968 violate the Fourth Amendment guarantee against unreasonable searches and seizures.

2. There was insufficient showing by the government that "other investigative procedures" would not have been effective as required by 18 U.S.C. § 2518(1)(c).

3. There was insufficient compliance by the government with the mandatory requirements for authorization contained in 18 U.S.C. § 2516(1).

The Fourth Amendment says that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Men may differ, and many courts have differed, as to what is a reasonable search and seizure, but it is beyond question that the Fourth Amendment only prohibits unreasonable searches and seizures. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ;

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Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Supreme Court has, on numerous occasions, discussed the nature of the right protected by the Fourth Amendment. In Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949), the court stated that "The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society." Perhaps the clearest statement by the court was in Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967): "The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Thus, through the explicit language of the Amendment itself and the case interpreting it, we know that the Fourth Amendment means what it says-unreasonable searches are prohibited. The court has likewise recognized that the requirements of the Fourth Amendment are not inflexible or obtusely unyielding to the legitimate needs of law enforcement. Osborn v. United States, 385 U.S. 323, 330, n. 9, 87 S.Ct. 429, 17 L.Ed.2d 394 (1967); Ohio ex rel....

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