U.S. v. Allen
| Decision Date | 05 February 1979 |
| Docket Number | No. 77-5786,77-5786 |
| Citation | 588 F.2d 1100 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eddie C. ALLEN, Rosa Lee White and Andrew Preston Perkins, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
L. Haldane Taylor, Jacksonville, Fla. (court-appointed), for Allen.
James W. Stirling, Jacksonville, Fla. (court-appointed), for White.
Raymond E. Makowski, F. Joseph DuBray, Jacksonville, Fla., for Perkins.
Andrew Preston Perkins, pro se.
John J. Daley, Jr., Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.
The defendants were convicted at a jury trial on a one count indictment for operating a numbers lottery in violation of 18 U.S.C. § 1955. This statute prohibits participation in a gambling business which violates state law. Not every gambling business illegal under state law is prohibited by this statute, however, because the statute reaches only those that include five or more persons and do so for more than thirty days or gross $2,000 or more in a single day. 1
All the defendants contend that the government did not prove section 1955's jurisdictional requirement of participation by five or more persons for at least thirty days. 2 In addition, Rosa Lee White argues that statements she made to FBI agents and evidence made relevant by these statements were the inadmissible fruits of a search which the district court ruled was unlawful. Andrew Preston Perkins contends that there is insufficient evidence that he participated in the lottery, and that his motion for a new trial should have been granted because a juror was incompetent and because a stricken statement in the prosecutor's closing argument was outside the evidence in the case. We reject all these contentions and affirm the convictions.
The evidence at trial, construed in the light most favorable to the government, See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), showed that Andrew Preston Perkins operated a numbers lottery in Jacksonville, Florida. Eddie C. Allen was the "pickup man" who regularly traveled from seller to seller to pick up recorded bets, and Rosa Lee White operated a "checkup house" where she totaled the recorded bets and calculated the payoff on winning numbers and sellers' commissions.
This operation sold three numbers games: on Mondays through Fridays, "Bond; " on Thursdays, "Total; " and on Saturdays, "Races." 3 Each game operated in the same way. Through a seller, a bettor would bet on a two or three digit number, depending on the game played. The seller would record the bet, and between 1:30 p. m. and 3:00 p. m. on the day of the lottery, after betting was closed but before the number was published, Allen would collect the sellers' betting slips.
The government's case unfolded in three parts. The first was the government's investigation. FBI agents conducted visual surveillance of Eddie C. Allen over a period of approximately five months. This surveillance took place on September 15 and 16, October 21, December 2, 9, 16, and 23 1976, and January 1, 13, and 27 and February 3, 1977. The surveillance on all these dates, with the exception of a very brief surveillance on December 23, established a pattern in which Allen would make several midafternoon stops about two to three minutes long. From December 2 on, he would then stop at Rosa Lee White's. From the beginning, his rounds would culminate in a meeting with Andrew Preston Perkins, usually at the Perk and Loretta's Soul Lounge but once in a parking lot adjacent to White's residence. The surveillance showed a generally widening network of stops.
On September 15, 1976, Allen made one stop 4 before going to the Soul Lounge. On September 16 and October 21, Allen made two stops 5 before seeing Perkins at the Lounge; on the former date he was observed handing Perkins some papers.
On December 2 and 9, Allen made the same two stops and then stopped at Rosa Lee White's address before meeting with Perkins. Later, he was observed again meeting with Perkins adjacent to White's, after which Perkins went into White's apartment building.
On December 16, Allen made one additional stop 6 and, instead of going to the Soul Lounge, met with Perkins adjacent to White's. On December 23, during five minutes of surveillance, Allen made one stop at an address which did not appear at any other time during the surveillance.
On January 6, 1977, Allen made the same two stops as in September and October. On January 13, Allen made four stops 7 and the went to White's and Perkins'. On January 23 and February 3, he made five stops 8 and then went to White's and Perkins'.
The government's investigation culminated on February 10, 1977, when FBI agents obtained warrants to conduct searches of the premises at which Allen stopped. Each of these searches except one yielded betting slips and sales totals for Bond, Total and Races lotteries. Some of the papers seized matched those at other locations.
The second part of the government's evidence was the testimony of three persons whose premises were searched on February 10. Each of these witnesses admitted that he or she had sold numbers for at least six months. Anna Flanders, at whose premises Allen stopped during each surveillance except the first and the brief one on December 23, testified that she had sold Bond and Total since early 1976. Originally, she had done so for an O. C. Pace who died in July, 1976. Eddie Allen had picked up numbers from Flanders for Pace and continued to do so since Pace's death; Flanders did not know who was Allen's boss during this time. She identified her handwriting on Bond and Total slips seized at her premises as well as at White's.
Henry Sinclair Puzie, at whose premises Allen stopped on January 13 and 27 and February 3 and who was observed leaving his apartment with Allen on January 13 and meeting with Perkins outside the Soul Lounge on December 9, testified that he sold Bond, Total, and Races for six months to a year. Puzie identified his handwriting on slips found in his apartment and in White's apartment.
Willie Bannister, who appeared in surveillance only on January 27 and February 23, 1977, testified that he sold Bond, Total, and Races for about six months. His testimony was indefinite as to the date when he quit selling. Puzie testified that he began selling when he was recruited by Perkins and that since then Allen picked up bets at Puzie's apartment on Mondays, Thursdays, and Saturdays, and Perkins met with him once a week to settle up. A search of Bannister's Confectionary yielded no paraphernalia. Bannister said that he had spotted the surveillance and gotten rid of any paraphernalia.
The third part of the government's evidence was the testimony of its expert on lottery operations. He explained how the Bond, Total, and Races lotteries operate. He also described the normal structure of a lottery operation as a central operator connected to sellers by a "pickup man" who picks up bets on a regular basis during the afternoons when the number becomes available, and delivers betting slips to a "checkup house."
Rosa Lee White and Eddie C. Allen concede that the government proved the existence of a numbers lottery in which many people participated at various times. Along with defendant Perkins they argue, however, that the government did not prove that five or more persons participated in this numbers operation during any continuous thirty day period. We find no merit in this argument.
Although the defendants argue that the government's surveillance was too sporadic and was never conducted regularly over any thirty day period, the repeated pattern established over a period of several months in this case was enough for the jury to infer that the lottery continued during hiatuses in the government's surveillance of Allen. On the basis of this pattern, coupled with the seizure of lottery paraphernalia at the locations which formed part of this pattern, the jury reasonably could have concluded that Perkins, Allen, and two sellers, Anna Flanders and Leo Dennis, were involved in the lottery since September and that Rosa Lee White and the unidentified seller were involved since December 2 and December 16 respectively, more than thirty days preceding the February 10, 1977, searches and arrests. On the basis of the testimony of the sellers, the jury could have concluded that two more sellers, Henry Puzie and Willie Bannister, were involved for approximately six months. The defendants contend for various reasons that this testimony was successfully impeached. These arguments, however, go to matters of credibility which we must resolve in favor of the government. Glasser, supra, at 80, 62 S.Ct. 457; United States v. Chandler, 586 F.2d 593, 599 (5th Cir. 1978).
Perkins' contention that his own involvement was not proved is also without merit. The direct testimony of Willie Bannister that Perkins recruited him into the numbers operation and met with him weekly to settle accounts, together with Perkins' repeated appearance in the pattern of surveillance, was substantial evidence upon which the jury could conclude that Perkins was the operator of this lottery.
Among the searches conducted on February 10, 1977, FBI agents searched Rosa Lee White's apartment pursuant to a warrant issued by a United States Magistrate. Approximately fifteen minutes after agents began the search, additional agents arrived and began to question White. They gave her Miranda warnings, which she indicated she understood, and obtained from her a Waiver of Rights. White told them that she had operated a checkup house for approximately one month, tabulating slips furnished by an unknown person which...
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