534 F.2d 788 (8th Cir. 1976), 75-1834, United States v. Cartano

Docket Nº:75-1834.
Citation:534 F.2d 788
Party Name:UNITED STATES of America, Appellee, v. John Guy CARTANO, Appellant.
Case Date:April 13, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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534 F.2d 788 (8th Cir. 1976)

UNITED STATES of America, Appellee,

v.

John Guy CARTANO, Appellant.

No. 75-1834.

United States Court of Appeals, Eighth Circuit

April 13, 1976

Submitted Feb. 9, 1976.

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Gerald T. Sullivan, Keyes & Crawford, Cedar Rapids, Iowa, for appellant.

Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This direct criminal appeal is taken by appellant, John Guy Cartano, following his conviction by a jury for interstate transportation of illegal gambling devices in violation of 18 U.S.C.A. § 1953 (1975). The issues raised on appeal include the sufficiency of the indictment, the constitutional validity of the Iowa gambling statute then in force, the adequacy of the instruction on the Iowa gambling statute, and the sufficiency of the evidence. We affirm.

Appellant Cartano was indicted by a federal grand jury on August 21, 1975, for violations of 18 U.S.C.A. §§ 1953 and 1955 arising out of his alleged conducting of an illegal gambling business involving the distribution and sale of football parlay cards 1 in the vicinity of Cedar Rapids, Iowa. Specifically, Count 1 charged Cartano and six other men with conducting an illegal gambling business in violation of 18 U.S.C.A. §§ 2 and 1955 involving the sale of football parlay cards and the taking of bets on athletic events in violation of Iowa Code §§ 726.1, .3, .6 (1973). Count 2 alleged that on or about October 8, 1974, Cartano, in violation of 18 U.S.C.A. §§ 2 and 1953, had carried in interstate commerce from Minneapolis, Minnesota, to Cedar Rapids, Iowa, approximately 200 football parlay cards designed

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for use in wagering pools on sporting events.

Prior to trial, Cartano filed a motion to dismiss the charges based upon the alleged insufficiency of the indictment and the claimed unconstitutionality of the Iowa gambling statute in effect at that time, Iowa Code § 726.12 (1973). 2 The district court 3 overruled that motion on October 10, 1975. Cartano's trial began on October 14, 1975, and resulted in his acquittal on Count 1 and conviction on Count 2. Post-trial motions for acquittal and for a new trial were denied by the district court. Cartano was sentenced to three years probation and fined $1,000. This appeal followed.

The facts in this case are not in dispute. The record reveals that on October 8, 1974, a package addressed to John Cartano containing approximately 200 football parlay cards arrived in Cedar Rapids, having been sent from Minneapolis by Emery Air Freight. Emery authorities had opened the package after becoming suspicious that its contents were other than the "Machine Parts" label indicated. Upon discovery of the parlay cards, the FBI was notified, and the package was shown to an agent who removed three cards. Delivery of the package was thereafter made to Cartano.

An investigation of Cartano's suspected gambling activities ensued. Examination of Emery Freight records uncovered two prior shipments to Cartano from Minneapolis. Four other prior shipments from Minneapolis to Cartano were stipulated as having been made. Subsequent to October 8, Cartano received one more Minneapolis shipment via Emery. In addition, a package addressed to "Joe Carnes" at the 19th Hole Bar in Cedar Rapids was accepted by Cartano, who was a former employee and regular patron at the bar, on October 24, 1974. By the end of October, Cartano had stopped receiving parlay cards from Minneapolis and was having them printed locally.

Surveillance of Cartano subsequent to October 8 indicated that he was making the parlay cards available to patrons of three bars and a barbershop in the Cedar Rapids area. All the money received through the placing of bets in connection with the cards went to Cartano. The distribution of the parlay cards continued until November 22, 1974, when the FBI, pursuant to search warrants, entered Cartano's home and the businesses where the cards were sold. Various parlay cards were seized in the raids in addition to approximately $200 in wagered cash.

Evidence was adduced at trial from an FBI statistics and probabilities expert that the odds set forth on the parlay cards were far more favorable to the distributor of the cards than the true odds. The expert testified that the distributor did not bet on an equal basis with his customers. For example, if 10 out of 10 winning teams were picked, a $1 bet paid $100. The true odds against picking 10 out of 10 winners were 1 in 1,024.

In his trial testimony Cartano admitted that he used the football parlay cards for the purpose of wagering on football games, that he accepted bets placed on these cards, and that he was making these cards available through various establishments to individuals, not all of whom were familiar to him. However, Cartano maintained that he believed these gambling activities constituted merely social gambling and were not illegal under Iowa law as it existed at that time.

The first issue we consider on this appeal is whether Count 2 of the indictment alleged all the elements of the offense so as to properly apprise Cartano of the charges against him. Appellate contends that Count 2 was defective because it did not make specific reference to the illegality of football parlay cards under Iowa Code § 726.12 (1973), an element necessary to prove a violation of 18 U.S.C.A. § 1953. In

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addition, it is...

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