Sagansky v. United States, 6608

• Decision Date: 25 March 1966
• Docket Number: 6609.,No. 6608,6608
• Citation: 358 F.2d 195
• Parties: Harry SAGANSKY, Defendant, Appellant, v. UNITED STATES of America, Appellee. Morris WEINSTEIN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

358 F.2d 195 (1966)

Harry SAGANSKY, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Morris WEINSTEIN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6608, 6609.

United States Court of Appeals First Circuit.

Heard December 7, 1965.

Decided March 25, 1966.

COPYRIGHT MATERIAL OMITTED

Walter J. Hurley, Boston, Mass., with whom Thomas E. Dwyer, Boston, Mass., was on brief, for appellant in No. 6608.

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on brief, for appellant in No. 6609.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

These appeals are from judgments of conviction entered on jury verdicts finding the defendants Sagansky and Weinstein guilty of knowingly using wire communication facilities for the transmission of wagers in interstate commerce in violation of 18 U.S.C. § 1084 (a).¹ The indictment is in five counts. The first four charge the defendants jointly with the commission of this offense on four separate occasions in February 1964.² The fifth count charges Sagansky alone with violation of this statute on January 23, 1964.

There appears to be no dispute as to the material facts. There is substantial evidence that the defendants were engaged in the business of betting and wagering. On December 30, 1963, John Hanley, a special agent in the Intelligence Division of the Treasury Department, was introduced to Sagansky by one Cecil Rhodes, Jr., who had been placing bets with Sagansky. He introduced Hanley as Gerry Connelly, a business man from Washington, D. C. On that date after Hanley indicated he was interested in placing bets, Sagansky gave him his telephone number and also gave him two other numbers to call when Sagansky was not available. On January 22, 1964, Hanley went to Sagansky's apartment in Brookline, Massachusetts, to collect on a recent bet he had made with him. While there Hanley placed another wager with Sagansky who informed him he would be leaving for Florida in a few days and told Hanley to be sure to use the two telephone numbers he had previously given him. He also stated he had talked to "Moe" and "Bernie" and they would handle his "action" while he (Sagansky) was out of town. As Hanley was leaving the apartment he told Sagansky he would be in Washington the next day and would call and give Sagansky some action. To this Sagansky replied "Sure, that's okay." On the next day, January 23, Hanley made a call from Washington to Sagansky in Brookline and placed a bet which Sagansky readily accepted.³ Hanley returned to Boston the following day and went to Sagansky's apartment to collect on a previous bet. After paying Hanley $6200 Sagansky again told him that "Moe" and "Bernie" had been spoken to and they would handle his action in Sagansky's absence. During this conversation he asked Hanley where he had called from the day before. When Hanley told him he had called from his office in Washington, Sagansky said "That's what I thought * * *" and requested Hanley to be more careful and to use a public telephone in the future.

On January 30 while Sagansky was in Florida, Hanley called the defendant, Morris Weinstein, also known as "Moe." He identified himself as "Gerry" explaining that "Doc Sagansky was supposed to have contacted you about me." Weinstein replied "Oh Gerry, Hello. How are you?" In this conversation Weinstein assured Hanley he would handle his action. During the next week Hanley made a number of local telephone calls to Weinstein placing bets and met with him on one occasion to make payment for his losses.

On February 10 while in Washington, Hanley made a long distance call to Weinstein from a pay station and placed a bet which Weinstein readily accepted.⁴ On February 12 Hanley again called Weinstein from the same public phone booth in Washington and placed a horse wager which Weinstein repeated and Hanley confirmed. During this conversation Weinstein also acknowledged receipt of a check to pay for his losses which Hanley had mailed him from Washington. On February 18 Hanley called Weinstein person-to-person from Washington and overheard him tell the operator that Weinstein was not there. On the next day Hanley placed another call to Weinstein from Washington, this time station-to-station. After acknowledging that Hanley had called him the day before, Weinstein requested Hanley not to call him person-to-person, stating that he Weinstein had to be more careful. Hanley then placed a bet on a horse which Weinstein erroneously repeated and Hanley corrected.

On February 21 while still in Washington Hanley called Sagansky at his Brookline apartment and when he attempted to place a wager, Sagansky told him "to call the other fellow" (meaning "Moe"). Hanley informed Sagansky he was calling from Washington. Within a half hour Hanley called Weinstein as Sagansky had suggested. When he told Weinstein he had just talked to "Doc," Weinstein replied "Yeah, I know." Hanley then placed a bet which Weinstein readily accepted. On February 25 Hanley settled his account with Sagansky at his Brookline apartment.

Before the trial began each defendant moved to dismiss the indictment on the ground that the grand jury had been improperly selected. It appears from the stipulation filed in connection with these motions that the jury commissioners drew the prospective jurors from voting lists. The defendants contend that this method of selection is unlawful because it automatically excludes citizens who are not registered to vote. It also appears that no jurors were drawn from that part of the District of Massachusetts west of Worcester County which defendants claim is discriminatory. We have already decided that these grounds are insufficient to warrant dismissal of an indictment. Katz v. United States, 321 F.2d 7, 8 (1st Cir. 1963), cert. denied, 375 U.S. 903, 84 S.Ct. 193, 11 L. Ed.2d 144; Gorin v. United States, 313 F.2d 641, 644 (1st Cir. 1963), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052; see also King v. United States, 346 F.2d 123 (1st Cir. 1965).

Defendants also filed pretrial motions for severance on the ground that each of them is prejudiced by the joinder of the other for trial together. They allege that it may be an integral part of the defense proffered by one defendant to call his co-defendant as a witness in his behalf and that said witness is not or may not be available to the other defendant unless each defendant is tried separately. They also argue that the offenses are not so simple in character that the acts charged against each defendant could be readily segregated and fairly understood by the jury. Clearly, joinder of the defendants in this indictment was proper under Rule 8(b) of the Federal Rules of Criminal Procedure, 18 U.S.C. Defendants attempt to bring this case within the purview of Criminal Rule 14 entitled "Relief from Prejudicial Joinder." As we said in Gorin v. United States, supra, to obtain severance defendants must make a strong showing of prejudice in order to invoke the discretionary remedies provided in this rule. It is well settled that the granting of severance lies in the discretion of the trial judge. Stilson v. United States, 250 U.S. 583, 585, 40 S.Ct. 28, 63 L.Ed. 1154 (1919). The denial of motions for severance on the same grounds as urged here were found by this court not to constitute an abuse of discretion. Gorin v. United States, supra, 313 F.2d at 645-646.

We now come to the questions raised by the defendants during the trial itself. The court admitted evidence against both defendants of a certain telephone conversation between Weinstein and Treasury Agent Hanley and shortly thereafter admitted evidence against both defendants of a certain telephone conversation between Hanley and Sagansky. This evidence was admitted over objection of the defendants who complain they were prejudiced by the trial court's refusal to limit the conversation between Hanley and each defendant to the case against that defendant. On several other occasions during the trial the court so limited the admissibility of similar conversations as requested by counsel. It should be noted, however, that at the time the court refused to so limit these two telephone conversations, there was already ample evidence in the record from which the jury could find that when they took place these defendants were engaged in the joint commission of an offense. The record also shows that just prior to the admission of this evidence the court instructed the jury on the subject of joint commission of offenses.

As we said in Quercia v. United States, 70 F.2d 997, 999 (1st Cir. 1934):

"* * * where there is prior evidence of an agreement to commit, or the joint commission of an offense, the statement of one is evidence against all who are concerned in it, if made in furtherance of the common design. It is not necessary that the indictment be for conspiracy, if a joint enterprise is shown and they are indicted as co-defendants."

Therefore, we cannot say that the trial court committed prejudicial error in refusing to so limit the two conversations above mentioned as requested by the defendants. See also Lee Dip v. United States, 92 F.2d 802 (9th Cir. 1937).

One of the essential elements of proof of the crime charged is the use of a wire communication facility for the transmission of bets or wagers. Defendants contend that the evidence is insufficient to warrant a finding that they used a wire for transmission of a wager in violation of 18 U.S.C. § 1084(a).⁵ The gist of this contention is that the offense is committed by the one who initially sends in the bet and not by the one who receives it; in other words, the meaning of "transmission" as used in this statute does not embrace the act of receiving. While this might be a proper construction of the...