U.S. v. Burke

• Decision Date: 28 January 1983
• Docket Number: 29,Nos. 26,D,28,27,s. 26
• Citation: 700 F.2d 70
• Parties: 12 Fed. R. Evid. Serv. 966, 9 Media L. Rep. 1211 UNITED STATES of America, Appellee, v. James BURKE, Anthony Perla, Rocco Perla, and Richard Kuhn, Defendants-Appellants. ockets 82-1028, 82-1030, 82-1032, 82-1056.
• Court: U.S. Court of Appeals — Second Circuit

Page 70

700 F.2d 70

12 Fed. R. Evid. Serv. 966, 9 Media L. Rep. 1211

UNITED STATES of America, Appellee, v. James BURKE, Anthony Perla, Rocco Perla, and Richard Kuhn Defendants-Appellants.

Nos. 26, 27, 28, 29, Dockets 82-1028, 82-1030, 82-1032, 82-1056.

United States Court of Appeals Second Circuit.

Argued Sept. 20, 1982.

Decided Jan. 28, 1983.

Gerald L. Shargel, New York City, for defendant-appellant Burke.

James K. O'Malley, Pittsburgh, Pa., for defendants-appellants Rocco and Anthony Perla.

Gary B. Zimmerman, Pittsburgh, Pa., for defendant-appellant Kuhn.

Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y. (Edward R. Korman, U.S. Atty., E.D.N.Y., Lawrence H. Sharf, Sp. Counsel, E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee U.S.A.

James C. Goodale, John G. Koeltl, Gary W. Kubek, Debevoise & Plimpton, New York City, for amicus curiae Time, Inc.

Before LUMBARD, MESKILL and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge:

The defendants appeal from the judgment of the United States District Court for the Eastern District of New York, Bramwell, J., convicting them, after a four week jury trial, on charges of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. (1976 & Supp. V 1981) (RICO), conspiracy to commit sports bribery, 18 U.S.C. Sec. 224 (1976), and interstate travel with the intent to commit bribery, 18 U.S.C. Sec. 1952 (1976). They challenge several rulings made by the trial court and ask this Court to reverse their convictions.

The judgment of the district court is affirmed.

Background

The appellants' convictions arise from their participation in the Boston College (B.C.) basketball "point shaving scandal." ¹ The evidence presented at trial, although somewhat sketchy, revealed that the point shaving scheme was born in Pittsburgh during the summer months of 1978 and was the brainchild of Rocco Perla and his brother Anthony (Tony). The Perla brothers were small-time gamblers with big-time ideas who viewed the 1978-79 B.C. basketball season as a perfect opportunity to implement these ideas. Their optimism was fueled by the prospect that they might recruit Richard Kuhn to join the scheme. Kuhn, a high school friend of Rocco Perla, was entering his senior year at B.C. and was expected to be a key member of the 1978-79 B.C. basketball team.

The Perlas proposed a simple scheme. They would select, in concert with Kuhn, certain basketball games where the projected point spread separating B.C. from its opponent was expected to be significant. ² Kuhn would be responsible for ensuring, by his play on the court, that B.C. fell short of the point spread. Thus, for example, if participating bookmakers determined B.C. to be an eight-point favorite in a particular game, Kuhn would be paid his bonus, usually $2,500, if B.C. won by less than eight points. Kuhn agreed to participate in this scheme.

Rocco and his brother Tony then mobilized a betting syndicate to maximize their potential gain from this illegal operation. They contacted a local friend, Paul Mazzei, who was known to have influence within major New York gambling circles. Mazzei in turn contacted Henry Hill, a reputed underworld figure from New York who had befriended Mazzei while both men were serving sentences in a federal penitentiary. Mazzei and the Perlas were particularly hopeful that Hill would enlist the support of his reputed underworld "Boss," defendant James Burke, to ensure protection for their enterprise in the event that the bookmakers discovered they were being swindled. Hill and Burke were brought into the scheme.

On November 16, 1978, Burke instructed Hill, Mazzei and Tony Perla to meet in Boston with Kuhn and any other member of the B.C. team interested in participating in their scheme. Hill, Mazzei and Tony Perla flew to Logan Airport in Boston and, after discussing their strategy with Kuhn, the defendants agreed that the upcoming Providence game would be an appropriate test for their scheme. Hill then paid Kuhn several hundred dollars good-faith money and Mazzei furnished him with some cocaine to seal the conspiracy.

The Providence game was played on December 6, 1978 and Boston College was favored to win by six to seven points. Kuhn was thus expected to keep the score below the six to seven point margin. The test run for the scheme proved unsuccessful, however, when B.C. established an early lead and ultimately won the game by nineteen points. Apparently enraged by their gambling loss, the appellants decided to recruit additional B.C. players to enhance their control over the outcome of the games. They approached Ernie Cobb, the leading scorer on the team, and Joseph Beaulieu, who shared the center position with Kuhn. Cobb agreed to cooperate, while Beaulieu rejected this offer.

The December 16 Harvard game was chosen as the second test for the scheme. B.C. was favored by twelve points, but won the game by only a three-point margin, 86 to 83. The bettors were very happy with this result and Kuhn was paid $2,500 for his efforts. The scheme continued to work successfully in the December 23 U.C.L.A. game, ³ where U.C.L.A., a fifteen to eighteen point favorite, won the game by twenty-two points.

Suspecting that some bookmakers might be getting wise to the scheme, the defendants temporarily revised their strategy after the U.C.L.A. game. To allay any suspicions of foul play, the defendants decided to bet on B.C. to win by more than the point spread in a game that they were confident B.C. would win handily. The conspirators chose the January 17 University of Connecticut (UCONN) game to implement this plan. Their strategy was effective; B.C., a two to three point favorite, beat UCONN by a margin greater than the point spread. ⁴

In early February, B.C. was scheduled to play two New York teams, Fordham and St. John's. The defendants decided that these games presented especially good opportunities because New York bookmakers generally accepted large bets for New York teams. They reintroduced the original strategy and it proved successful for the February 3 Fordham game when B.C., a thirteen point favorite, won by seven points. The February 6 St. John's game was a "push:" the bettors neither won nor lost when St. John's prevailed by the exact betting margin established by participating bookmakers.

Confident from their recent success, the defendants viewed the February 10 Holy Cross game as an opportunity to reap the full benefits of their scheme. They were aware that bookmakers generally accepted large bets on this game because B.C. and Holy Cross were traditional rivals and also because the game was being televised nationwide. Holy Cross was favored to win and, consistent with the scheme, the defendants bet on Holy Cross to win by a margin greater than the point spread. Holy Cross ultimately won by only two points, however, and the defendants lost a substantial amount of money. The scheme thus concluded on an unsuccessful note.

The criminal conspiracy unraveled when Henry Hill was indicted by state authorities on drug conspiracy charges and subsequently was implicated in the Lufthansa robbery at Kennedy Airport in New York. ⁵ While being questioned on these charges, Hill revealed that he had recently participated in a point shaving scheme involving the B.C. basketball team and various underworld figures. Hill offered to relate the full story of the swindle if federal officials would guarantee him full immunity and would agree to intercede on his behalf to convince state officials to drop the drug charges pending in state court. The grand jury indicted Burke, Mazzei, Kuhn, Rocco Perla and Tony Perla on the basis of testimony given by Hill. Hill was indicted as a co-conspirator, but was not named as a defendant.

At trial, the government's case consisted principally of the testimony of Henry Hill and three other witnesses, James Sweeney and Joseph Beaulieu, both B.C. players, and Barbara Reed, a 23-year-old nurse who lived with Kuhn during the 1978-79 B.C. season. The government also introduced two confessions, one made by Kuhn and the other by Tony Perla. Finally, the government presented telephone records showing evidence of extensive communications between the conspirators during the 1978-79 season, and records provided by Western Union and various hotels which further corroborated government testimony.

Each appellant was convicted, after a four week jury trial, on charges of RICO conspiracy, 18 U.S.C. Sec. 1962(d) (1976 & Supp. V 1981), conspiracy to commit sports bribery, 18 U.S.C. Sec. 224 (1976), and interstate travel with the intent to commit bribery, 18 U.S.C. Sec. 1952 (1976). Judge Bramwell sentenced defendant Burke to a twenty year prison term. Appellants Kuhn, Mazzei and Tony Perla were sentenced to ten year prison terms on the RICO count, and concurrent five year terms on the two remaining counts. The court imposed a four year jail term on Rocco Perla. See 18 U.S.C. Sec. 1963 (1976). ⁶

Appellant Mazzei decided to pursue his appeal separate from his co-defendants. See United States v. Mazzei, 700 F.2d 85, Docket No. 82-1146 (2d Cir. Jan. 28, 1983).

Discussion

The appellants point to eight rulings made by the trial court to support their claims of judicial error. Only two of these rulings merit extended discussion. We will deal with the other claims briefly.

A. Propriety of Quashing Subpoena

On February 16, 1981, Sports Illustrated (SI) published an article written by Henry Hill, in collaboration with Douglas Looney, entitled How I Put The Fix In. This article purported to be Hill's first-hand account of the point shaving scheme. Prior to trial, counsel for appellant Burke served a subpoena on Time, Incorporated, ⁷ the parent company of SI, seeking production of virtually every document and tape in the possession of SI that in any way related to the Looney article.

Time, Inc....