U.S. v. Boyd

• Decision Date: 26 January 1978
• Docket Number: No. 76-3847,76-3847
• Citation: 566 F.2d 929
• Parties: 2 Fed. R. Evid. Serv. 938 UNITED STATES of America, Plaintiff-Appellant, v. James M. BOYD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 929

566 F.2d 929

2 Fed. R. Evid. Serv. 938

UNITED STATES of America, Plaintiff-Appellant, v. James M. BOYD, Defendant-Appellee.

No. 76-3847.

United States Court of Appeals, Fifth Circuit.

Jan. 26, 1978.

Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Robert C. Watson, Montgomery, Ala., for plaintiff-appellant.

Sterling G. Culpepper, Jr., Charles S. Coody, Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before MORGAN, HILL and FAY, Circuit Judges.

FAY, Circuit Judge:

The defendant, James M. Boyd, was indicted on April 8, 1976, and charged with conducting a gambling business in violation of 18 U.S.C. § 1955 and conspiring to conduct such a business in violation of 18 U.S.C. § 371. The joint trial of Boyd and three co-defendants commenced on April 2, 1976. ¹ During the trial, the government introduced into evidence a complete transcript of 282 taped telephone conversations and played to the jury approximately 91 of these conversations. Boyd was a participant in some but not all of the conversations. At the conclusion of the government's case, the court granted judgments of acquittal as to two of the co-defendants. The jury later returned a verdict of guilty as to both counts of the indictment against Boyd and the remaining co-defendant. The court then granted Boyd's motion for judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. The United States has appealed the granting of Boyd's judgment of acquittal.

I. GOVERNMENTAL APPEAL

We are first met with the threshold issue of whether the United States may appeal pursuant to 18 U.S.C. § 3731 ² from the granting of a judgment of acquittal after the jury has returned a guilty verdict. The defendant contends that this court lacks jurisdiction to entertain such an appeal because reversal of the district court's ruling would run afoul of the Double Jeopardy Clause of the United States Constitution. ³ The defendant cites United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), in support of his contention and seeks to distinguish United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), on the basis that Wilson involved dismissal of an indictment, as opposed to the granting of a judgment of acquittal, following a jury verdict of guilty. The United States counters with the argument that Wilson permits an appeal in the case at bar because reversal of the district court's ruling would result in reinstatement of the guilty verdict and would not subject the defendant to a second trial. The task at hand is to interpret Wilson and Martin Linen and to apply the principles of these decisions to this case.

In Wilson, the jury returned a verdict finding the defendant guilty of converting union funds to his own use in violation of 29 U.S.C. § 501(c). On the defendant's post- verdict motion, the district court dismissed the indictment on the ground of prejudicial preindictment delay. The Supreme Court held that the governmental appeal of the post-verdict dismissal would not constitute double jeopardy because reversal would reinstate the jury verdict and would not necessitate a second trial.

Martin Linen involved the issue of whether the government could appeal from the granting of a judgment of acquittal after a deadlocked jury was discharged. The Court held that a governmental appeal would not lie because, if successful, a second trial would be required.

Our review of Wilson, Martin Linen, and other cases involving the issue of whether a governmental appeal violates the Double Jeopardy Clause leads to the conclusion that the propriety of the appeal which we are currently reviewing is governed by United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Jenkins is factually similar to Wilson in that the district court dismissed the indictment following a trial, but differs in that Jenkins involved a non-jury trial. ⁴ The Jenkins court clearly and succinctly summarized the holding in Wilson, decided the same day, as follows:

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal.

Id. at 365, 95 S.Ct. at 1011. The Court then proceeded to explain why the Double Jeopardy Clause would not preclude a governmental appeal in a situation such as the one before us.

When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect.

Id.

We are mindful that the scope of appellate remedies available to the government pursuant to 18 U.S.C. § 3731 is an issue of much import, and with this recognition in mind, wish to briefly relate our holding today to the government's right to appeal under different factual circumstances, as we understand the law. Pretrial dismissals of indictments are appealable because jeopardy has not attached at the time of dismissal. Jeopardy attaches in a jury trial when the jury is empaneled and sworn, and when the court begins to hear evidence in a bench trial. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). After jeopardy has attached, if the dismissal, ⁵ acquittal, or declaration of mistrial results from the solution of factual elements of the offense charged, appealability of the order is to be determined solely by application of the Double Jeopardy Clause. The double jeopardy prohibition can only arise when there is a danger of subjecting the defendant to a second trial for the same offense. The government's appeal here is permissible.

II. MERITS

The defendant Boyd is an admitted gambler who conducted a gambling operation out of his newsstand in Montgomery, Alabama. Boyd's defense is that he engaged in no activity proscribed by 18 U.S.C. § 1955 and 18 U.S.C. § 371 because he was not involved in a gambling business involving five or more persons nor did he reasonably anticipate the involvement of the jurisdictional five. We conclude that the district court erroneously granted the defendant's motion for judgment of acquittal as to each count.

A. The Substantive Count

The District Court granted a judgment of acquittal as to the substantive count on the ground that the government failed to establish that Boyd was a participant in a gambling operation involving five or more persons as required by 18 U.S.C. § 1955. ⁶ The government introduced the taped telephone conversations to strengthen its showing that Boyd was involved with at least four other persons in a gambling enterprise. At the conclusion of all of the evidence and after the jury had returned a verdict, the Court ruled that the conversations in which Boyd did not participate were hearsay and thus not admissible against Boyd, and that the conversations in which Boyd did participate failed to establish the involvement of five or more persons. We have concluded that the evidence adduced at trial, independent of the conversations in which Boyd did not participate, is sufficient to establish the jurisdictional requirement. In any event, we also conclude that these conversations are not hearsay and are admissible against the defendant Boyd.

Before turning to the evidence, it is necessary to glean an understanding of the day-to-day operation of a successful gambling operation, as well as the applicable law, because such is essential to connecting or linking individual operators into a common gambling enterprise in cases involving alleged 18 U.S.C. § 1955 violations.

Communication and cooperation among persons who operate gambling businesses minimizes the financial risks associated with gambling and makes gambling profitable for all concerned. See United States v. Schaefer, 510 F.2d 1307 (8th Cir. 1975), cert. denied 421 U.S. 975, 978, 95 S.Ct. 1975, 44 L.Ed.2d 466 (1975); See also United States v. Box, 530 F.2d 1258 (5th Cir. 1976). The successful bookmaker makes his profit by collecting a percentage, usually 10%, which losers must pay for the privilege of betting. ⁷ The bookmaker is in reality a businessman rather than a gambler. ⁸ The bookmaker utilizes a "line" ⁹ or point spread on each game for which he is taking bets. Ideally, the bookmaker would like to have exactly the same amount bet on each side of the line so that he will collect 110% Of the amount he is required to pay. ¹⁰ Overbalance of bets to either side will therefore decrease the chance of the bookmaker reaping the 10% Profit. The bookmaker may seek to compensate for the overbalance by "laying off" certain bets to other bookmakers. ¹¹ In addition, it is essential that bookmakers in a given area utilize "lines" which are consistent to prevent sophisticated bettors from placing bets with two bookmakers, on opposite sides, with little risk of loss for the bettor and in effect pitting the bookmakers against each other. ¹²

The law in this Circuit is settled that the mere fact that two bookmakers occasionally exchange line information or "lay off" bets does not itself warrant a finding that the bookmakers are engaged in a common gambling business. United States v Milton, 555 F.2d 1198 (5th Cir. 1977). Two bookmakers can be linked under 18 U.S.C. § 1955, however, if it is shown that:

. . . . the receipt of line information by one bookmaker substantially affects the...