Gennaro v. United States

Decision Date01 December 1966
Docket NumberNo. 18318.,18318.
Citation369 F.2d 106
PartiesBen GENNARO, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Robert J. O'Hanlon, St. Louis, Mo., for appellant. Richard L. Daly, St. Louis, Mo., with him on brief.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo. for appellee. Richard D. FitzGibbon, Jr., U. S. Atty., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., on brief.

Before VOGEL, Chief Judge, GIBSON, Circuit Judge, and REGISTER, District Judge.

REGISTER, District Judge.

By this appeal Ben Gennaro seeks reversal of a judgment of conviction entered upon a jury verdict finding him guilty on two counts of an information charging violations of federal statutes imposing a tax on persons engaged in the business of accepting wagers. We affirm the judgment as entered by the district court.

Appellant was charged in count one of the information with being "* * * willfully and knowingly engaged in the business of accepting wagers as a bookmaker * * *" during the taxable year ending June 30, 1965, "* * * without having paid the occupational tax imposed by Section 4411, Title 26, United States Code," in violation of Section 7262 of that title. Section 4411 imposes "* * * a special tax of $50 per year to be paid by each person who is * * engaged in receiving wagers * * *" Section 7262 provides, generally, for a penalty in the form of a fine to be imposed on a person found to be in violation of said Section 4411.

Count two of the information charged appellant with having "* * * willfully and knowingly engaged in the business of accepting wagers as a bookmaker while willfully and knowingly failing to pay the occupational tax imposed by Section 4411, * * *" during the taxable year ending June 30, 1966. Section 7203, Title 26, United States Code, provides for certain penalties, including fine or imprisonment, or both, to be imposed upon a person convicted of willfully failing to pay the tax described in Section 4411.

Appellant was sentenced to pay a fine of $1,000 on count one, and to imprisonment for a period of six months, together with a fine of $1,000, on count two.

No evidence was offered during the trial on behalf of the defendant; all the evidence received was offered by the appellee and stands uncontroverted.

The evidence consists of the testimony of two special agents of the Intelligence Division, United States Internal Revenue Service (Agents Wallace and Offutt); the testimony of Miss Bernice McDonald, an employee of Internal Revenue Service and custodian, in the St. Louis office, of records reflecting payment of wagering tax stamps; and a number of exhibits. The record reveals the following facts:

Appellant operated Benny's Bar at 1028 Chouteau Street in St. Louis, Missouri. On June 3, 1965, Agent Wallace telephoned the bar, identified himself as "John from the Post," and asked for Benny. The person answering identified himself as Benny and during the ensuing conversation Agent Wallace placed nine wagers on horses running at various tracks on that day. The following morning Agent Wallace went to the bar, asked for appellant, identified himself as "John from the Post," and gave to appellant $20 which he owed as a result of the bets placed on the preceding day. He also gave to the appellant $100 in cash as a deposit for future wagers. During this conversation discussion was had concerning the time at which telephone calls should be made in the future, and the correct telephone number. Appellant introduced Agent Wallace to Bob Williams, one of appellant's bar employees, and told Wallace that if he (appellant) was not present at the bar when called, to place any bets with Williams. Thereafter appellant showed Agent Wallace around the bar, kitchen and storeroom, and while in the storeroom appellant answered two telephone calls during which he made notations of names, letters and numbers on a pad. Commencing on June 5, 1965, and continuing through that month, Agent Wallace placed numerous bets with the appellant or with Williams, at the bar. Between June 5 and July 23, 1965, Agent Wallace placed bets with the appellant covering more than 24 different horses and involving at least $170.

On June 17, appellant informed Agent Wallace that he (appellant) was obtaining football parlay cards for the fall season and could supply them to Wallace for five cents each.

On August 16 Agent Wallace called appellant from Iowa and placed a bet on a baseball game. During that conversation Wallace asked the appellant if he had purchased a wagering tax stamp. Appellant replied by stating "* * * no, he hadn't; that the stamp was only $50.00; it was worth it to keep the `Feds' off your back, but the minute you bought one, the State knew what was going on."

Agent Wallace placed wagers with appellant on August 20 and again on October 4. In response to appellant's request Agent Wallace met with him during the evening of October 4. At that meeting appellant advised Wallace "* * * that he was able to purchase the line or the point spread on football teams through a source out of Chicago if we wanted to buy the line and have our cards printed * * *", informed Wallace regarding details of the operation — concerning cost of the cards, sources thereof, details of their delivery — and that appellant "* * * had maybe fifteen or twenty people lined up that would push or distribute the cards for us. They would draw fifteen per cent of the gross and we would split the net wins." Appellant proposed on this evening that he and Agent Wallace go into business together, on a partnership arrangement, and quoted a price of $2,500 for a one-half interest. Wallace replied that he would think it over and talk with him later. Agent Wallace continued to place wagers with the appellant from time to time, the last occasion being on October 20, 1965.

Agent Offutt testified that on November 12, 1965, he entered Benny's Bar with a search warrant, identified himself, executed the warrant, informed appellant of his constitutional rights, and, after making the required search, arrested the appellant. In response to his question of "Where is your Federal Gambling Stamp", appellant replied that he did not have one and, when asked "Why not?", advised Agent Offutt that he did not need one. During the search Agent Offutt discovered and seized various documents, all received in evidence, and identified as gambling or wagering paraphernalia.

Miss McDonald testified that she was one of those persons having supervision of wagering tax stamp records of the Internal Revenue Service in its St. Louis district office; that she had searched and examined the records for the fiscal years ending June 30, 1965 and 1966; and that there was no record of a federal wagering tax stamp having been issued to appellant for either of those two years.

The pertinency of the somewhat detailed statement of the evidence becomes apparent in considering the points of error raised by the appellant.

Appellant urges that the trial court erred in failing to give his requested instructions numbers 2 and 5, as submitted by him. The court eliminated a portion of each, and gave the remainder. Instructions 2 and 5, as requested by the appellant, are quoted; the portions eliminated by the trial court are in Italic print:

"Instruction No. 2: The tax involved in this case is what is known as an `occupational tax\'. The term `occupation\' is synonymous with calling, trade, business or profession. `Occupation\' as commonly understood signified the business or activity in which a person engaged in order to secure a living or to obtain wealth.
"Instruction No. 5: Unless you find and believe from the evidence beyond a reasonable doubt that the defendant Ben Gennaro had a proprietary interest in the bookmaking operation and that he was engaged in bookmaking as an occupation you must find the defendant Gennaro not guilty on Counts I and II of the indictment (sic)."

Appellant argues that the omitted portions of his requests were essential in order that the term "occupation", as used in the statute, be properly defined, and further, that "* * * a finding of a `proprietary interest' was part of the law of the case." Appellant's brief, p. 6. It is his contention that only by including the portions omitted would the jury have been given "* * * a proper standard by which to determine whether he was `engaged in the business of accepting bets' as contemplated by the statutes."

The gist of the charge contained in the first count, and one of the essential elements of the crime charged in the second count of the information, is that appellant was, during the critical periods, willfully and knowingly "engaged in the business of accepting wagers" without having paid the required tax. It was proper, upon appellant's request, for the trial court to instruct the jury that the tax involved was what is known as an occupational tax and to define the term "occupation". The trial court in this case did just that, and instructed that it "* * * is synonymous with calling, trade, business or profession. `Occupation' as commonly understood signified the business or activity in which a person is engaged." In Bohn v. United States, 8 Cir., 260 F.2d 773, a case in which the appellant was charged, tried and convicted of attempting to evade and defeat wagering excise taxes, error was urged in that the trial court did not give the jury a definition of the words "a person engaged in the business of accepting such wagers." The appellant had not submitted a request for such definition, but this court stated, by Judge Woodrough, at page 778: "* * we are not persuaded that the court was required to do so. The word `business' and the phrase `engaged in business' are of common usage and there is no reason to treat jurors as though they were unfamiliar with them. The question whether appellant was `engaged in the business' as charged in this case was a question within...

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3 cases
  • Griffin v. U.S.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 26 janvier 1979
    ...covered by federal gambling statutes are "bankers," "writers" and persons having a "proprietary interest"). But see Gennaro v. U. S., 369 F.2d 106, 108-10 (CA8, 1966), Vacated on other grounds, 390 U.S. 200, 88 S.Ct. 900, 19 L.Ed.2d 1036 (1967) (seemingly holding that a proprietary interest......
  • United States v. MacLeod
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 25 janvier 1971
    ...of guilty intent. It can establish a willful violation of the federal statute by circumstantial evidence alone. Gennaro v. United States, 369 F.2d 106, 112 (8th Cir. 1966), vacated and remanded on other grounds, 390 U.S. 200, 88 S.Ct. 900, 19 L.Ed.2d 1036 (1968). In this case, evidence that......
  • United States v. ONE 1965 FORD STATION WAGON
    • United States
    • U.S. District Court — Southern District of Georgia
    • 13 novembre 1968
    ...is an occupational tax. The statute contemplates one engaging in the "business" of accepting wagers. Title 26, § 4421; Gennaro v. United States, 8 Cir., 369 F.2d 106; Mulligan v. United States, 8 Cir., 358 F.2d 604; United States v. Simon, 7 Cir., 241 F.2d 308. Money found on a person not e......

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