U.S. v. Pinelli

Citation890 F.2d 1461
Decision Date09 June 1989
Docket NumberNos. 87-2511,87-2513,87-2582,87-2565,87-2610,87-2616 and 87-2678,s. 87-2511
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Phil PINELLI, David Pinelli, Robert Sheehan, Martin Mosko, Thomas Gottone, William Burbidge, and Aaron Mosko, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Joseph Saint-Veltri, Denver, Colo., for defendant-appellant, Phil pinelli.

Janine Yunker, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, and Frances Smylie Brown, Asst. Federal Public Defender, on the Richard A. Hostetler, Denver, Colo., for defendant-appellant Robert Sheehan.

briefs), Denver, Colo., for defendant-appellant David Pinelli.

Richard J. Banta, Denver, Colo., for defendant-appellant Martin Mosko.

Irving P. Andrews, Denver, Colo., for defendant-appellant Thomas Gottone.

Arthur M. Schwartz, Denver, Colo., for defendant-appellant William Burbidge.

John B. Moorhead (Todd L. Lundy, with him on the brief), Baker & Hostetler, Denver, Colo., for defendant-appellant Aaron Mosko.

Richard J. Marien, Dept. of Justice, Kansas City, Mo. (Michael J. Norton, Acting U.S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.

Before BALDOCK and McWILLIAMS, Circuit Judges, and PHILLIPS * District Judge.

PHILLIPS, District Judge, sitting by designation.

This gambling prosecution stems from a thirty-five (35) count indictment returned by a federal grand jury sitting in Colorado on February 5, 1986. The indictment charged fourteen defendants, including the seven appellants here, with violating several federal criminal statutes. The pertinent statutes on appeal are 18 U.S.C. Sec. 1955 (operating an illegal gambling business in violation of the laws of Colorado, involving five or more persons, with gross wagers in excess of $2,000 on any single day), 18 U.S.C. Sec. 1952 (interstate use of a telephone to facilitate the gambling business); 26 U.S.C. Sec. 7201 (income tax evasion), 26 U.S.C. Sec. 7262 (failure to pay gambling occupation tax), and 26 U.S.C. Sec. 7203 (failure to file requisite tax forms).

Four defendants entered pleas of guilty prior to trial. Three defendants were acquitted on all charges by the jury. The remaining seven defendants, appellants here, suffered convictions on the counts depicted in the chart below:

Appellants have raised numerous issues on appeal. The principal issues involve: (1) challenges to the sufficiency of the evidence by various appellants; (2) constitutional challenges to 18 U.S.C. Sec. 1955 and the applicable Colorado gambling statutes; (3) the trial court's denial of a mistrial motion arising out of the inadvertent submission of non-evidentiary materials to the jury during deliberations; (4) the admission of expert gambling testimony offered by the government; (5) the trial court's denial of appellants' motions to suppress all evidence obtained as a result of a court-authorized wiretap; and (6) the trial court's denial of severance motions made by two defendants

at the close of the government's case. We find that there was abundant evidence from which a reasonable jury could find the defendants guilty of the offenses for which they were convicted, and further find no reversible error in the record of this case. Accordingly, we affirm the convictions of all seven appellants.

I. SUFFICIENCY OF THE EVIDENCE

In a challenge based upon the sufficiency of the evidence, we must affirm the judgment of conviction if there is record evidence which would allow a rational trier-of-fact to find the appellants guilty of the crimes charged in the indictment. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). Moreover, this Court must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Hooks, 780 F.2d 1526, 1529-31 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Viewed in that light, we conclude that the evidence, both direct and circumstantial, satisfies the test.

The government's evidence at trial focused on appellants' gambling activities from September through December, 1984. The evidence consisted of the testimony of thirty-six (36) witnesses, including numerous bettor witnesses, the introduction of several hundred tape recordings of telephone conversations intercepted pursuant to court-authorized electronic surveillance, documentary evidence seized pursuant to search warrants executed on December 9, 1984 after the termination of the wiretap, and expert testimony by an FBI agent on the roles played by the various defendants in the gambling operation.

The electronic surveillance in this case was active for approximately twenty-four days in November and December, 1984. The government's wiretap evidence and seized records in this case indicated the gambling business in question accepted wagers in excess of $2,300,000 in November and December, 1984. [Exs. 608-611].

Special Agent William Holmes of the Federal Bureau of Investigation testified as an expert witness for the government as to the roles of each of the participants in the gambling activity in question. His opinions were based on review of the electronic surveillance and search evidence. [Supp. Vol. 1, p. 36]. He did not rely on and was not privy to the testimony of the bettor witnesses. [Id.]. At the outset of his testimony, Holmes explained some basic gambling terminology which will be helpful in explaining the roles of each of the appellants.

Holmes described the "point spread" or "line" as having the purpose of attracting equal amounts of betting on each side of a contest. Bookmakers change the line on a particular game to attract betting on the other team. A line of "Denver minus six" means Denver is favored by six points and to win a bet on Denver, Denver must win by seven or more points. The term "vig" or "vigorish" represents a ten percent commission charged to losing bets, which compensates the bookmaker for the privilege of placing bets. In other words, a $100 losing bet would require payment of $110, which payment includes a $10 "vig". According to Holmes, a bookmaker theoretically strives to accept the same amount of bets on each side of a contest, or balance his books, and take the "vig" as profit.

Agent Holmes explained the concept of "lay-off wagering" as that which allows a bookmaker "to get rid of wagers that he feels he is not financially able to handle and reduce the risk of great financial loss by having to pay off on large sums of money." [Supp. Vol. 1, pp. 16-25]. The following example of lay-off wagering was provided by Holmes during his testimony: Suppose Bookmaker X has wagers of $1,500 on team A and $1,000 on team B. Bookmaker X would lay-off the $500 excess on team A with Bookmaker Y. If team A wins, Bookmaker X would collect $1,000 from those who bet on team B, plus the 10% vig for a total of $1,100. Bookmaker X would collect his $500 lay-off wager from Bookmaker Y, which would make the total amount collected $1,600. From this amount, he would have to pay his bettors who had bet $1,500 on team A. Bookmaker X would thus make a profit of $100 without risking any of his own money. If Viewing the evidence in the light most favorable to the government, as we must, a brief summary of the evidence pertaining to each appellant is set forth below: 2

Bookmaker X had not laid-off his excess wagers and team A had won, then he would have collected $1,100 from the losers ($1,000 + 10% vig) and had to pay out $1,500 to the winners for a net loss of $400. [Supp. Vol. 1, pp. 16-25]. As will be shown, the concept of lay-off wagering played a central role in the successful prosecution of appellants.

A. Aaron Mosko

The evidence in this case demonstrated that defendant Aaron Mosko was in the business of accepting wagers on sporting events. The government's analysis of the evidence used in reconstructing the gambling activity demonstrated that Aaron Mosko accepted over $1,000,000 in wagers in November and December, 1984. [Ex. 609]. The government also introduced evidence, including numerous wiretap conversations, which demonstrated that defendant Aaron Mosko exchanged line information with various defendants and placed lay-off wagers with other bookmakers. The evidence further established that certain defendants placed lay-off wagers with other bookmakers on behalf of Aaron Mosko. [Ex. 384-A, Vol. 14, p. 20; Ex. 172-A, Vol. 9, p. 115; Ex. 180-A, Vol. 9, p. 116; Ex. 616, Vol. 18, p. 12-56; Ex. 617, Vol. 18, p. 12-61; Ex. 368-A, Vol. 14, p. 36; Ex. 609].

Taped conversations between Aaron Mosko and Phil Pinelli were played at trial in which Pinelli gave Mosko the line on numerous games. [Ex. 384-A, Vol. 14, p. 20; Ex. 172-A, Vol. 9, p. 115]. The jury also heard a conversation between Phil Pinelli and Aaron Mosko where Mosko and Pinelli agreed to line movements on the SMU-Arkansas game. [Ex. 180-A, Vol. 9, p. 116]. The government also introduced a taped conversation between Mosko and Thomas Gottone in which Mosko advised Gottone of the lines on various games. [Ex. 396-A, Vol. 14, p. 23].

Also introduced at trial was a series of taped conversations between Mosko and Robert Sheehan in which Sheehan asked Mosko if he was "alright", to which Mosko responded by asking Sheehan to see what he could "get Miami and Seattle at." [Ex. 368-A, Vol. 14, p. 26]. Sheehan later called back reporting the lines on the Miami and Seattle games to Mosko who then appeared to request Sheehan to place wagers on the two games for him. [Id.]. Additional taped conversations introduced by the government consisted of Aaron Mosko discussing with bettors the mechanics of "laying...

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