663 F.2d 1120 (1st Cir. 1981), 79-1437, United States v. Winter

Docket Nº:79-1437, 79-1438, 79-1441, 79-1442, 79-1446 and 79-1476.
Citation:663 F.2d 1120
Party Name:UNITED STATES of America, Appellee, v. Howard T. WINTER, Defendant-Appellant. UNITED STATES of America, Appellee, v. Melvin GOLDENBERG, Defendant-Appellant. UNITED STATES of America, Appellee, v. Elliot Paul PRICE, Defendant-Appellant. UNITED STATES of America, Appellee, v. James DeMETRI, Defendant-Appellant. UNITED STATES of America, Appellee, v.
Case Date:October 30, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1120

663 F.2d 1120 (1st Cir. 1981)

UNITED STATES of America, Appellee,

v.

Howard T. WINTER, Defendant-Appellant.

UNITED STATES of America, Appellee,

v.

Melvin GOLDENBERG, Defendant-Appellant.

UNITED STATES of America, Appellee,

v.

Elliot Paul PRICE, Defendant-Appellant.

UNITED STATES of America, Appellee,

v.

James DeMETRI, Defendant-Appellant.

UNITED STATES of America, Appellee,

v.

Charles DeMETRI, Defendant-Appellant.

UNITED STATES of America, Appellee,

v.

James MARTORANO, Defendant-Appellant.

Nos. 79-1437, 79-1438, 79-1441, 79-1442, 79-1446 and 79-1476.

United States Court of Appeals, First Circuit

October 30, 1981

Argued Dec. 3, 1980.

As Amended on Denial of Rehearing Nov. 25, 1981.

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Albert F. Cullen, Jr., Boston, Mass., with whom Cullen & Wall, Boston, Mass., was on brief, for appellant in Case Number 79-1437.

Morris M. Goldings, Boston, Mass., with whom Hawkes & Goldings, Boston, Mass., was on brief, for appellant in Case Number 79-1438.

Jeffrey M. Smith, with whom Paul T. Smith, and Harvey R. Peters, Boston, Mass., were on brief, for appellant in Case Number 79-1441.

Jeanne Baker, Cambridge, Mass., with whom Barry M. Haight, Milton, Mass. and Joseph T. Travaline, Burlington, Mass., were on brief, for appellants in Case Numbers 79-1442 and 79-1446.

Richard M. Egbert, Boston, Mass., by appointment of the Court, with whom Marcus & Egbert, Boston, Mass. was on brief, for appellant in Case Number 79-1476.

Kathleen A. Felton, Atty. Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty. and Jeremiah T. O'Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief, for appellee.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The case reaches us through two separate appeals: in the first, defendants Howard T. Winter, James Martorano, James DeMetri, Charles DeMetri, Elliot Paul Price, and Melvin Goldenberg appeal their convictions following a 46-day trial on grounds that will be outlined below; in the second, all six defendants appeal both the district court's denial of their motion for a new trial and its denial of an evidentiary hearing on that motion. Because of the nature of the case, it is necessary to describe the indictment and recount the evidence presented at trial in some detail.

THE INDICTMENT

At the time it reached the jury, the indictment consisted of 42 counts. Count One charged that the appellants, as well as several others, 1 were employed by and associated with an enterprise, as defined by 18 U.S.C. § 1961(4) 2 of the Racketeer Influenced and Corrupt Organizations Act (RICO), which was engaged in and the activities of which affected interstate commerce. This enterprise was alleged to have been composed of individuals associated in fact to fix by bribery horse races at various

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race tracks 3 and to profit from this activity by wagering on those races. The count further alleged that, from on or about December 1973 to on or about November 1975, these individuals conspired with each other and with the Government's star witness, unindicted coconspirator Anthony Ciulla, to violate 18 U.S.C. § 1962(c) 4 of RICO by conducting the affairs of the enterprise "through a pattern of racketeering activity."

As specifically outlined in the count, the alleged scheme involved betting on fixed races at East Coast tracks and also placing bets on the fixed races through illegal off-track bookmakers throughout the country. Several defendants, including Winter and Martorano, were alleged to have financed Ciulla and others to fix races by bribing jockeys, trainers, owners, and racing officials to prevent specific horses from finishing in the top three positions in their respective races. Certain members of the enterprise, including Winter, were alleged to have utilized force and violence to ensure that bribed jockeys and trainers actually performed as promised. Winter and Martorano, among others, were named as having caused Ciulla to travel from Massachusetts to Nevada to meet with bookmakers, including Price and Goldenberg, to arrange the terms on which the outside wagering on fixed races would be handled, and to collect the resulting profits.

To effectuate the scheme, several individuals would purchase large quantities of perfecta, exacta, trifecta, or quinella tickets 5 on the fixed races. Others, including Winter, would make telephone calls in interstate commerce and discuss wagering information on those races. Winter, Martorano, Ciulla, and others drew up lists of New England independent bookmakers whom the group would cheat by betting with them on races the group had fixed, and the Las Vegas members of the enterprise, including Price and Goldenberg, would cheat Las Vegas independent bookmakers in the same way. The winnings from wagering both inside and outside the track were brought to Motorama Sales, Inc., in Somerville, Massachusetts, and divided among the group. Motorama Sales, which was owned and controlled by Winter and Martorano, was used as a meeting place for the members of the enterprise.

Finally, it was alleged that certain individuals, including Winter, Martorano, James DeMetri, Charles DeMetri, and Ciulla purchased a race horse, Spread The Word, for approximately $30,000, with the purpose of having the jockey hold it back so that it would finish poorly in several races; when the odds were high enough, it was to be entered in a race with inferior horses and allowed to win.

Count One also contained 45 overt acts, all said to have been committed to effect the objects and purposes, and to be in furtherance of the conspiracy in violation of 18 U.S.C. §§ 1962(d) 6 and 1963(a). 7 The

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Government further developed its theory of the enterprise's operations through these overt acts. The mechanics of 16 fixed races were set out in detail. Included in this were descriptions of three separate incidents of violence, in which certain members of the enterprise beat up a trainer and two jockeys as part of the scheme. Also described were trips taken by Ciulla to Las Vegas to make plans with and to pick up large winnings from Nevada bookmakers, including Price and Goldenberg. James Martorano was identified as the person responsible for investing the enterprise's profits in legitimate businesses. An attempt by Ciulla, Winter, and Martorano to invest some of the enterprise's profits through the purchase of the Squire Lounge, a topless, go-go establishment in Revere, Massachusetts, was outlined.

In its final form, Count Two, which incorporated Count One by reference, charged Winter and Martorano with conducting the enterprise's affairs through a pattern of racketeering activity as defined in 18 U.S.C. §§ 1961(1)(B) 8 and 1961(5). 9 This pattern included racketeering acts as charged in Counts Three through Forty-Two and Violations of 18 U.S.C. §§ 224, 10 1952, 11

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and 2. 12 These activities were said to be violations of 18 U.S.C. §§ 1962(c) and 1963(a). The Government withdrew the forfeiture provisions of this count on the final day of trial.

Counts Three through Forty-Two charged specific violations of 18 U.S.C. § 224 (Sports Bribery Act) and 18 U.S.C. § 1952 (Travel Act) and two violations resulting from the operation of the scheme. Most of the counts were based on incidents described as overt acts in Count One. Winter and Martorano were named in 38 of the counts, Price and Goldenberg in 15, and the DeMetris in only 2.

The jury convicted each appellant on every count in which he was named.

THE EVIDENCE

Our review of the evidence, together with all legitimate inferences to be drawn from it, must be made in the light most favorable to the party prevailing below, the Government. E. g., United States v. Tedesco, 635 F.2d 902, 906 (1st Cir. 1980); United States v. Izzi, 613 F.2d 1205, 1206 (1st Cir.), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 793 (1980). Credibility choices must be resolved in favor of the verdict. United States v. Gonzalez, 617 F.2d 104, 106 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 202, 66 L.Ed.2d 86 (1980); United States v. Beecroft, 608 F.2d 753, 756 (9th Cir. 1979). One of the few subjects on which the appellants and the Government agree is that the testimony of Anthony Ciulla was absolutely vital to the case. Testifying under an informal grant of immunity, Ciulla described in detail a scheme that-not surprisingly-neatly dovetailed with the indictment.

Formation of the Enterprise.

According to Ciulla, he first met with Winter in connection with this plan at a bar called the Back Room in Somerville in late 1973. There Ciulla agreed that he and his partner Barnoski, a fugitive at the time of the trial, would deal directly with jockeys and trainers in fixing horse races. Winter in turn agreed that he and his partners would finance the scheme, place outside bets with illegal bookmakers and collect money from them, and supply runners. Ciulla was to receive 50% of the profits, to be split with Barnoski, but be responsible for all losses. Winter was to split his half with his partners, whom he said included James Martorano.

Within a month, the group met again, this time at Marshall Motors 13 in Somerville. Winter and Martorano were among those present. Ciulla testified that, during a discussion about the roles that the various participants in the scheme would play, Winter and Martorano mentioned Price and

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Goldenberg 14 as "significant bookmakers" who could be instrumental in moving money to illegal bookmakers.

Ciulla testified...

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