Daley v. United States, 4973-4979.

• Decision Date: 04 June 1956
• Docket Number: No. 4973-4979.,4973-4979.
• Citation: 231 F.2d 123
• Parties: Thomas F. DALEY, Defendant, Appellant, v. UNITED STATES of America, Appellee. Arthur F. DUNNETT, Jr., v. UNITED STATES of America, Appellee. Louis FRONGELLO, Alias v. UNITED STATES of America, Appellee. James J. PALMISANO v. UNITED STATES of America, Appellee. Edward LAVALLE v. UNITED STATES of America, Appellee. Angelo ROSSETTI v. UNITED STATES of America, Appellee. Francis J. JUDD v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

231 F.2d 123 (1956)

Thomas F. DALEY, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Arthur F. DUNNETT, Jr., v. UNITED STATES of America, Appellee.

Louis FRONGELLO, Alias v. UNITED STATES of America, Appellee.

James J. PALMISANO v. UNITED STATES of America, Appellee.

Edward LAVALLE v. UNITED STATES of America, Appellee.

Angelo ROSSETTI v. UNITED STATES of America, Appellee.

Francis J. JUDD v. UNITED STATES of America, Appellee.

Nos. 4973-4979.

United States Court of Appeals First Circuit.

March 30, 1956.

Writ of Certiorari Denied June 4, 1956.

Alfred Sigel and Edward F. McLaughlin, Jr., Boston, Mass., for appellants.

David E. Place, Sp. Asst. to U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., Washington, D. C., was on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Writ of Certiorari Denied June 4, 1956. See 76 S.Ct. 1028.

MAGRUDER, Chief Judge.

A separate information was filed in the court below against each of the seven appellants herein. The informations, which were identical except for the names of the respective defendants, were each in two counts. Count 1 charged that the accused, on or about May 29, 1953, at Revere, in the District of Massachusetts, "did engage in the business of accepting wagers and of conducting a lottery and of conducting a wagering pool, as defined in 26 U.S.C. 3285, and did wilfully fail prior to the commencement of said business engagements to pay the special occupational tax as required by 26 U.S.C. 3290, * * * in violation of 26 U.S.C. 3294 and 2707(b)." Count 2 charged that the accused, on or about May 29, 1953, at Revere, Mass., "did engage in the business of accepting wagers and of conducting a lottery and of conducting a wagering pool, as defined in 26 U.S.C. 3285, and did wilfully fail prior to the commencement of said business engagements to register as required by 26 U.S.C. 3291, in violation of 26 U.S.C. 3294 and 2707(b)."

Upon motion of the government, allowed by the district court, the seven informations were consolidated for trial. After a lengthy trial the jury reported verdicts of guilty on all counts, and these appeals were taken from the ensuing judgments of conviction.

The district judge repeatedly explained to the jury that the act of Congress in question did not denounce gambling as such, or the participation in a gambling business, as a federal offense; that if the evidence might indicate some gambling offenses against state law, this was wholly irrelevant to the offenses for which the defendants were being tried; that the federal offense was participating in a gambling "business," without having previously paid the special occupational tax or without having previously registered as required by federal law.

The defendants were not charged with a conspiracy to commit an offense against the United States, but each was charged with technically separate but similar offenses of participating in a gambling "business" without having individually paid the required occupational tax to the United States or without having individually registered with the appropriate federal collector of internal revenue.

The government proved by uncontradicted evidence that no one of the seven defendants had paid the special occupational tax for the year in question, and that no one of the defendants had complied with the registration requirements of 26 U.S.C. § 3291. Therefore, the only other element of the separate offenses which the government had to establish beyond a reasonable doubt was that each of the defendants had engaged in the described gambling "business." In this respect the government sought to show that all seven of the defendants had participated together, on or about May 29, 1953, in the conduct of a single gambling enterprise or "business" at 560 Winthrop Ave., Revere, Mass. — that was the common element of the offenses charged against all seven of the defendants.

Accordingly the United States moved for consolidation of the seven informations for the purpose of trial, under Rule 13 of the Federal Rules of Criminal Procedure, 18 U.S.C., on the ground "that all of the defendants in the above-entitled actions are alleged, in informations filed in this Honorable Court, to have participated in the same act or transaction, or series of acts or transactions, constituting the same offenses * * *." Appellants contend that the allowance of this motion by the district court was reversible error. We do not agree.

Rule 13 provides that the district court "may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information." This requires a reference back to Rule 8(b), which provides that two or more defendants "may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

Considering the participation by the defendants in the same gambling business as "the same act or transaction", is it the same act or transaction "constituting an offense or offenses", within the meaning of Rule 8(b)? In a hypercritical reading of the rule, it may be suggested that proof of a particular defendant's participation in such act or transaction does not of itself establish the offense charged, for this particular defendant might, or might not, have paid the occupational tax, or complied with the registration requirements. But Rules 13 and 8(b) are not to be read so narrowly. See Cataneo v. United States, 4 Cir., 1948, 167 F.2d 820; Jordan v. United States, 5 Cir., 1941, 120 F.2d 65. The rules are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial. Rule 8(b) on its face contemplates the situation where some of the evidence might be admissible against one defendant and not against a codefendant at a single trial, for in its concluding clause the rule provides that "all of the defendants need not be charged in each count." Here, participation by the seven defendants in the gambling business at 560 Winthrop Avenue constituted the concluding element of the two offenses of which they were all charged, since it was undisputed that none of them had paid the occupational tax or registered. We have no doubt that the district court was empowered under the rules to entertain the motion by the United States for trial of the seven informations together. So far as the record discloses, none of the defendants made any move for the relief afforded under Rule 14, which provides that if it appears "that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." Italics added. In the circumstances before us, we cannot say that the district court committed an abuse of discretion in allowing the government's motion under Rule 13. It would have been absurd here to put upon the government the expense and burden of seven separate trials, especially since most of the government's evidence related to the activities at 560 Winthrop Avenue.

The government's case was largely the outcome of persistent efforts by Sergeant Cosgrove of the Cambridge police in discharge of his duty to detect offenses against the criminal laws of the Commonwealth of Massachusetts. For some months prior to the raid by the local police at 560 Winthrop Avenue, Revere, on May 29, 1953, which will be referred to hereinafter, Cosgrove had been engaged in trailing Arthur F. Dunnett, Jr. ("Sonny"), Edward Lavalle ("Eddie"), and James J. Palmisano, all defendants herein, first in Cambridge and later to points outside of Cambridge. These three suspects were seen together in a garage at 90 Broadway, Cambridge, which contained the typical paraphernalia of a gambling establishment. Later these defendants were traced to a location on Ocean Avenue, Revere. Finally the surveillance by the Cambridge police was shifted to the vicinity of 560 Winthrop Avenue, Revere, a location across the street from the Suffolk Downs race track. There, in addition to Dunnett, Lavalle, and Palmisano, the witnesses observed the presence from time to time, prior to May 29, 1953, of Thomas Daley ("Tom"), once in the company of Angelo Rossetti ("Monge"), they being also two of the defendants in this case.

It was in evidence from the testimony of the witness Horkun that in February, 1953, Rossetti rented from Horkun a small cellar room at 560 Winthrop Avenue, ostensibly for use as a "club." Rossetti paid the first rent; the rent for April and May was paid to Horkun by Dunnett. Two telephones maintained by Horkun in his garage at the location were tapped and the wires run into the cellar room. Also, several other telephones in the neighborhood were similarly tapped, so that the occupants of the cellar room had a total of six or seven telephone lines available for calls in and out. There is not the slightest doubt of this on the evidence.

In the early afternoon of May 29, 1953, Sergeant Cosgrove, accompanied by Detective McNeil of the Cambridge police, visited the Boston office of the District Attorney for Suffolk County. The District Attorney put in a call to the Revere police. As a result of this visit Sergeant Cosgrove and Detective McNeil proceeded to the office of the chief of the Revere police, where certain Revere policemen were assigned to the raiding party, which then set out for 560 Winthrop...