U.S. v. Cartano

Decision Date13 April 1976
Docket NumberNo. 75-1834,75-1834
Citation534 F.2d 788
PartiesUNITED STATES of America, Appellee, v. John Guy CARTANO, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

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 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 addition, it is alleged that the indictment was deficient in that it did not negative the statutory exceptions to the general prohibition against gambling under section 726.12. We disagree with both contentions.

The basic test for the sufficiency of an indictment is whether it informs the defendant of what he is accused of in order to enable him to prepare his defense and to afford him protection against being placed in jeopardy a second time for the same crime. United States v. Debrow, 346 U.S. 374, 377-78, 74 S.Ct. 113, 115, 98 L.Ed. 92, 97 (1973); Hagner v. United States, 285 U.S. 427, 431-33, 52 S.Ct. 417, 419, 76 L.Ed. 861, 865 (1932). To that end, Fed.R.Crim.P. 7(c) requires simply that the indictment contain "a plain, concise and definite written statement of the essential facts constituting the offense charged." The challenged indictment in the instant case meets these requirements.

Count 2 of the indictment handed down against Cartano read as follows:

On or about October 8, 1974, in Cedar Rapids, Linn County, in the Cedar Rapids Division of the Northern District of Iowa, JOHN GUY CARTANO did knowingly, in violation of Sections 2 and 1953 of Title 18, United States Code, carry in interstate commerce from Minneapolis, Minnesota, to Cedar Rapids, Linn County, in the Cedar Rapids Division of the Northern District of Iowa, about two hundred tickets, bills, slips, papers and writings commonly referred to as football parlay cards used and to be used and designed for use in wagering pools with respect to sporting events, that is, college and professional football games.

The indictment specifically indicates the federal criminal statutes which Cartano is charged with violating and describes with particularity the act which allegedly constituted the offense. If appellant believed that the indictment lacked specificity, the appropriate course of action would have been to seek a Bill of Particulars. See United States v. Glup, 482 F.2d 1288, 1290 (8th Cir. 1973). None was sought in the instant case.

The fact that the indictment did not set forth the manner in which Cartano's actions violated the Iowa gambling laws does not render the indictment insufficient. There is no requirement that the elements of the underlying state offense be set forth in the indictment. See United States v. Rizzo, 418 F.2d 71, 74 (7th Cir. 1969); United States v. Halmo, 386 F.Supp. 593, 598 (E.D.Wis.1974). In addition, no prejudice has been shown to result from the failure to set forth the specific Iowa statute in the indictment. Absent such a showing, we will not set aside the indictment or the conviction. United States v. Haley, 478 F.2d 766, 768 (8th Cir. 1973); Tanksley v. United States, 321 F.2d 647 (8th Cir. 1963). See also United States v. Calabro, 467 F.2d 973, 981 (2d Cir. 1972). Further, examination of the record discloses beyond a doubt that Cartano and his counsel were "fully aware of the nature of the charges at all times." United States v. White,475 F.2d 1228, 1231 (4th Cir. 1973); Fed.R.Crim.P. 7(c)(3). Cf. United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir. 1973). Appellant is not entitled to relief on this ground.

Similarly, there is no merit to appellant's contention that the indictment is fatally defective because it does not negative the exceptions set forth in the Iowa gambling statute then in force, Iowa Code § 726.12 (1973). As a general rule, it is

the defendant's burden to prove as an affirmative defense that his conduct fell within the legislative exception, and there was no necessity for the indictment to allege that it was not. McKelvey v. United States, 1922, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301, 304; Tritt v. United States, 10 Cir., 1970, 421 F.2d 928, 929-930; Hockenberry v. United States, 9 Cir., 1970, 422 F.2d 171, 173.

United States v. Ramzy, 446 F.2d 1184, 1186 (5th Cir. 1971). See also Bistram v. United States, 237 F.2d 243, 245 (8th Cir. 1956).

Appellant next contends that Iowa Code chapter 726 (1973) as amended was unconstitutionally vague and indefinite. Specifically, appellant argues that the interrelationship of section 726.12(5) 4 and section 99A.1 5 created such confusion as to the legality of certain forms of gambling in Iowa that it failed to give adequate notice as to what constituted illegal acts. Appellant asserts that this lack of notice violated his right to due process. While the Iowa statute then in effect was certainly not a model of clarity, we agree with the district court's conclusion that it was not constitutionally inadequate and thus...

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