U.S. v. Tripp

• Decision Date: 16 January 1986
• Docket Number: No. 85-1031,85-1031
• Parties: 20 Fed. R. Evid. Serv. 146 UNITED STATES of America, Plaintiff-Appellee, v. Thomas TRIPP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 38

782 F.2d 38

20 Fed. R. Evid. Serv. 146

UNITED STATES of America, Plaintiff-Appellee, v. Thomas TRIPP, Defendant-Appellant.

No. 85-1031.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1985.

Decided Jan. 16, 1986.

Craig A. Daly, Detroit, Mich., for defendant-appellant.

David J. McKeon, Maura D. Corrigan, Asst. U.S. Attys., Detroit, Mich., William C. Bryson, argued, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before MARTIN and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Thomas Tripp appeals from his convictions for violation of 18 U.S.C. Sec. 1962(c), (d). For the reasons that follow, Tripp's convictions are affirmed.

I.

On March 21, 1984, defendant Thomas Tripp was indicted on three counts of violation of 18 U.S.C. Secs. 1962(c), (d), and 1951. Count I alleged that Tripp together with Robert J. Doniere, Frank Joseph, Dean E. Knopp, Samuel Giordano, Anthony Palazzolo, Donald R. Christy and David G. Dewood, Jr. was engaged in an "enterprise" pursuant to 18 U.S.C. Sec. 1961(4) for the purpose of engaging in violations of Ohio Rev.Code Sec. 2915.02, Mich.Comp.Laws Ann. Secs. 750.157b, .301, .314, 18 U.S.C. Secs. 891-894, 18 U.S.C. Sec. 1951, 18 U.S.C. Sec. 1952, 18 U.S.C. Sec. 1961(6), and 18 U.S.C. Sec. 2421. As part of this "enterprise," the indictment listed twenty "unlawful debts," 18 U.S.C. Sec. 1961(6), which the defendants had collected. Tripp was implicated in collections from Paul Stark, Albert Bifano, Robert Kohler, Albert Perras, Anthony Falzone, Robert Miller, and John Pantanella. As part of the pattern of racketeering which Tripp was alleged to have engaged in, the indictment alleged conspiracy to violate Mich.Comp.Laws Ann. Sec. 750.157a(b), .301, .314, and conspiracy to violate 18 U.S.C. Sec. 1951. Count II alleged that defendants conspired to violate 18 U.S.C. Sec. 1962(d) by conspiring to collect unlawful debts, debts incurred in gambling schemes which violated Ohio and Michigan gambling laws. This conspiracy was allegedly effected through high stakes card games using a rigged deck.

Tripp's counts were tried to a jury September 5, 1984 to September 24, 1984. The following evidence was received at trial.

The government's principal witness was Robert Doniere who was testifying pursuant to a plea agreement. Doniere testified that he met Tripp several years prior to the trial while losing several hundred dollars in a game of blackjack at which Tripp was present. Tripp told Doniere not to worry about the losses but to bring some customers to the card table in the future. Doniere described the scheme as follows:

[W]e would pick out a customer to bring to a card game. Mr. Tripp and myself would talk it over. He would either okay it or tell me not to bring the guy. I would bring him. If he was okay, we would bring him, and from there we would play him cards and the guy would lose and I would collect the money.

Doniere gave the money to Tripp and was paid each time. The games took place at hotels near Toledo. The group selected "customers" with a lot of money and lured them to the games with sex. Doniere indicated that he sometimes paid women to be present at the games. The scheme lasted for five or six years with twenty to twenty-five victims. Once when Doniere beat a prospective customer at pool and lost him from the card game, Tripp told him "that people wind up in trunks for less than that." Another time Doniere collected $26,000 which an individual named Corky lost in a card game. Doniere also testified that Tripp advised him to lie to the grand jury.

Doniere testified that he collected gambling debts from several individuals. He stated that he collected $10-12,000 lost by a person named Mallendick at a game at which Tripp was present; Doniere gave the money to Tripp. Doniere testified further that at the direction of Tripp and Palazzolo he persuaded a Dr. Paput to play in a game in which the doctor lost $40,000 to $50,000. Doniere collected the entire sum and was paid four or five thousand dollars for the collection. Doniere also testified that he collected debts from other people including Bifano, Kohler, Perras, Falzone and Miller.

John Hancock testified that Doniere took him to a card game in which Tripp was dealing and Doniere and Hancock were partners. Doniere and Hancock got a very good poker hand but lost $52,000. Hancock paid Doniere $26,000. Hancock later lost a similar amount in a poker game at which Tripp was present and dealing.

Paul Stark testified that he played poker with Doniere, and lost $10,000 to Tripp. Albert Bifano testified that Doniere invited him to a card game, before which the two had drinks and then Bifano felt "hazy." Bifano could not identify the participants in the card game, but he lost $28,000.

Robert Kohler, a general contractor in Toledo, testified that Doniere approached him with a business proposition and got him involved in a card game playing Doniere's hand. Kohler won several times. Kohler sought to have Doniere take his hand back, but Tripp and the others encouraged him to play. Doniere resumed playing but referred to the hand as "ours," Doniere and Kohler's, and after the hand was lost, Doniere attempted to collect half of the loss ($48,000) from Kohler. Kohler eventually paid $10,000.

John Pantanella testified that he lost $1,500 to Tripp in a poker game in which he was offered sexual favors. In a later game, Pantanella, after having about five drinks, lost more than $10,000. Richard Anderson testified that he knew Doniere through business. Anderson, through a Patricia Hendrix, ended up at the card game and had two beers, which, he testified, made him feel drugged. Playing a game called Polish poker with Hendrix as a partner, Anderson lost a substantial sum of money.

Thomas Janovsky, a forensic chemist with the Drug Enforcement Administration (DEA) and qualified as an expert by the court, testified that evidence he examined consisted of scopolamine hydrobromide and potassium antimonyl tartrate (PAT). Richard Dittus, a pharmacist at Century Drug also qualified as an expert, testified that PAT is not used with human beings and if ingested causes gastrointestinal upset including nausea, vomiting and diarrhea. Dittus testified that scopolamine hydrobromide causes disorientation, flushing, and blurring of vision. Dittus stated that probably neither PAT nor scopolamine hydrobromide would be noticeable in a mixed drink.

Donald Christy testified that he went to high school with Tripp, and when he participated in the card games, Tripp told him, "You are to sit on my right-hand side and when I place the cards down like this, you don't cut them. When I place them down like this, you cut them." Christy also participated in collections. One game took place at Christy's home.

Thomas Tripp testified that he had gambled since he was a teenager and was an accomplished poker player. Tripp indicated that he met Doniere at a golf outing and that Doniere said he might be interested in Tripp as a salesman. Tripp eventually accepted the position as a salesman and accompanied Doniere on visits to customers. According to Tripp, Doniere also had discussions with him about managing a health club or providing security for a trade center Doniere was remodeling. Tripp admitted that he had played cards with Doniere but denied that Doniere had ever collected money for him or that they had conspired to induce particular individuals to play in the card games.

Tripp further testified that he had met Tony Palazzolo through Doniere but that he had never discussed card games with Palazzolo. Tripp also stated that he had played cards with Kohler and won, but he denied that he had ever received money from Kohler or conspired with him to gamble. Tripp denied playing cards with Dr. Perras, Dr. Briskin, Anthony Falzone, or Bifano. He stated that he had brought Christy and Doniere together after Doniere had asked Tripp about purchasing an airplane. Tripp admitted that he and Christy were together at card games but denied giving Christy pills and cheating at cards. Tripp also denied any knowledge about scopolamine hydrobromide or PAT.

The district court allowed the government to introduce evidence pursuant to Fed.R.Evid. 404(b) in the form of Robert Doniere's testimony involving games with Paput, Mallendick, Baisdon, and Falzone. Tripp was present at all the games and these games occurred within the time frame of the conspiracy alleged in the indictment.

On September 24, 1984, Tripp was convicted by the jury of violating 18 U.S.C. Sec. 1962(c), (d).

II.

Tripp raises five assignments of error which we consider below.

A.

Tripp argues that the evidence of card games not alleged in the indictment was not properly admitted pursuant to Fed.R.Evid. 403, 404(b), and that the district court erred in failing to give a cautionary instruction limiting the jury's consideration of the alleged "other acts." The government contends that the evidence is properly admissible on the ground that the evidence is not "other acts" subject to Rule 404.

While we agree with the government that the additional card games testified to by Doniere did not constitute "other acts" subject to the requirements of Rule 404(b) and that such evidence was admissible as evidence of the conspiracy, United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); United States v. Gigante, 729 F.2d 78, 84 (2d Cir.), cert. denied, 467 U.S. 1206, 104 S.Ct. 2390, 81 L.Ed.2d 348 (1984); United States v. Abadi, 706 F.2d 178, 181 (6th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983); United States v. Meyers, 646 F.2d 1142, 1146 (6th Cir.1981); United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979), the balancing of potential prejudice and probative value required by Rule 403 is still applicable. Since the card games which took place during the conspiracy are...