U.S. v. Calaway

• Decision Date: 03 October 1975
• Docket Number: 74-3367,Nos. 74-3357,74-3241,74-3272 and 75-1255,s. 74-3357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin C. CALAWAY UNITED STATES of America, Plaintiff-Appellee, v. Luigi GELFUSO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tony ENDREOLA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter John MILANO, Defendant-Appellant UNITED STATES of America, Plaintiff-Appellee, v. John Joseph VACCARO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 609

524 F.2d 609

UNITED STATES of America, Plaintiff-Appellee, v. Martin C. CALAWAY

UNITED STATES of America, Plaintiff-Appellee, v. Luigi GELFUSO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Tony ENDREOLA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Peter John MILANO, Defendant-Appellant UNITED STATES of America, Plaintiff-Appellee, v. John Joseph VACCARO, Defendant-Appellant.

Nos. 74-3357, 74-3367, 74-3241, 74-3272 and 75-1255.

United States Court of Appeals Ninth Circuit.

Oct. 3, 1975.

Rehearing and Rehearing En Banc Denied Nov. 13, 1975.

Clarence Edelson (argued), Los Angeles, Cal., for appellant in 74-3241.

Richard H. Siegel (argued), Cleveland, Ohio, for appellant in 74-3272.

Burton Marks (argued), Beverly Hills, Cal., for appellant in 74-3357.

Dwain Clark (argued), Beverly Hills, Cal., for appellant in 74-3367 & 75-1255.

James Twitty, Atty., Dept. of Justice (argued), Los Angeles, Cal., for appellee.

OPINION

Before BROWNING, DUNIWAY and KILKENNY, Circuit Judges.

DUNIWAY, Circuit Judges.

These are consolidated appeals from judgments of conviction under a three-count indictment charging violations of 18 U.S.C. Sec. 371 (conspiracy to violate 18 U.S.C. Sec. 1955), 18 U.S.C. Sec. 1955 (conducting, financing, managing, supervising, directing or owning an illegal gambling business), and 18 U.S.C. 1952 (interstate travel in aid of racketeering enterprises, i.e., the same gambling business). Defendant Vaccaro was convicted on all three counts. Defendants Milano, Gelfuso, Calaway and Endreola wre convicted only on the first two counts. Except for Endreola, all received concurrent four-year sentences under each count on which they were convicted. Endreola's sentence was two years and a $500.00 fine, both suspended, and three years probation. A variety of contentions are raised on appeal, none of which requires reversal.

I. Admissibility of Hearsay Declarations of Conspirators.

Gelfuso and Milano argue that evidence of out of court (hearsay) statements by other conspirators, implicating them in the conspiracy, should have been excluded because the other, non-hearsay evidence implicating them is insufficient to permit use of the hearsay statements against them. They do not claim, and could not, on this record claim, that the existence of the charged conspiracy was not proved. Their only argument on this question relates to proof that they were conspirators. That being so, only slight evidence was required to permit a jury to infer, or to support a finding that Milano and Gelfuso were participants in the conspiracy. See, e.g., United States v. Turner, 9 Cir., 1975, 528 F.2d 143 at 162. Also, a conspiracy may be proved by evidence that is entirely circumstantial, and items of circumstantial evidence must be viewed collectively, not in isolation. United States v. Geaney, 2 Cir., 1969, 417 F.2d 1116, 1121. "An otherwise innocent act of 'relatively slight moment,' may, when viewed in the context of surrounding circumstances, justify an inference of complicity...." United States v. Raglan, 2 cir., 1967, 375 F.2d 471, 478 (citation omitted). It is too late to argue that the court erred in provisionally admitting the hearsay statements, subject to later motions to strike or for acquittal, see, e.g., United States v. Turner, supra, 528 F.2d 143 at 162.

The test governing admissibility of hearsay statements of coconspirators is whether there is substantial independent evidence, other than hearsay, which is sufficient to support a finding that the conspiracy existed and that the defendant against whom admission is sought was a party to the conspiracy. United States v. Snow, 9 Cir., 1975, 521 F.2d 780 at 733-734; United States v. Spanos, 9 Cir., 1972, 462 F.2d 1012, 1014; Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 735; Ong Way Jong v. United States, 9 cir., 1957, 245 F.2d 392, 394 & n. 1. All that is required is enough to make a prima facie case; the evidence need not compel a finding beyond a reasonable doubt. Carbo v. United States,supra, 314 F.2d at 737; see United States v. Ledesma, 9 Cir., 1974, 499 F.2d 36, 40; United States v. Randall, 9 Cir., 1974, 491 f.2d 1317, 1319-20; United States v. Griffen, 9 Cir.,1970, 434 F.2d 978, 983-84. Here, we need only consider whether the independent evidence sufficiently shows that Gelfuso and Milano were parties to the conspiracy.

In considering this question, we treat testimony by witnesses about statements made by Gelfuso or Milano themselves as part of the independent evidence of their participation in the conspiracy. Such statements by them are not received to establish the truth of what they said, but to show their own verbal acts. ¹ A conspiracy is an agreement or understanding, express or implied, between the conspirators. The usual way in which people reach agreements or understandings is by the use of words, oral or written. Indeed, it is difficult to conceive of a conspiracy formed or carried forward without the use of any words. Even sign language and codes are means of verbal communication.

The evidence shows that the conspiracy's purpose was to carry on an illegal gambling business in the San Fernando Valley area of Los Angeles. the first instigators were defendant Vaccaro and one Dubeck, an unindicted co-conspirator who (along with his wife) was shot and killed in Las Vegas just before the trial of this case was to begin. Vaccaro and Dubeck came to Los Angeles from Las Vegas and were soon employed to manage a restaurant called Diament's 9000. It was owned in partnership by one Diament, defendant Calaway, an attorney, and perhaps one Ernstsen, the nature of whose interest, if any, is disputed. Vaccaro, Dubeck and Calaway were soon planning to put the restaurant into the gambling business. Vaccaro enlisted the help of one Klytta, the bartender, and, through him, one Coloduros, in obtaining financing. Finally, Vaccaro got Gelfuso into the scheme. Gelfuso persuaded Coloduros first, to store gambling equipment at the house of his late mother, and later to open the business there. Another participant in the scheme was one Deems.

Gelfuso and Vaccaro had agreed that Gelfuso and Milano would each get 20% of the profits and Vaccaro 50%. He ran the business. Gelfuso found the site, and was to provide security and collect "markers" (gamblers' I.O.U.'s). He was to share his cut with Dubeck and Calaway. The latter was to provide free legal services if needed. Milano was to provide free bail for persons arrested. When the game was moved out of Coloduros' house Gelfuso arranged it. He received ledger sheets reflecting profits; he and Klytta visited at least one customer to collect a "marker."

There was plainly more than enough evidence, exclusive of hearsay, to support a finding that Gelfuso was a participant in the conspiracy. Admission of the hearsay, therefore, was not error. Counsel's argument that certain testimony was "beyond belief" betrays a basic misconception concerning the scope of appellate review. Both the jury and the trial judge were entitled to believe the government's witnesses. Except in unusual or extreme cases, the credibility of testimony is for the fact finder, not for this court.

As to Milano, the evidence, if restricted to non-hearsay, was not so strong, but it was sufficient. There was no question that a conspiracy existed; thus, slight evidence was all that was required to establish Milano's complicity. Exclusive of hearsay, the prosecution adduced four principal items of evidence: (1) testimony that Milano attended a large dinner meeting during a period of time in which the principal subject of conversation among most of the others in attendance, on a daily basis, was the Vaccaro-Dubeck-Calaway plan to organize a gambling enterprise; (2) testimony, supported by physical evidence, that Milano participated in the posting of bonds on two occasions for numerous persons arrested when the games were raided and that many of these people never had to pay for the bonds, (8) testimony concerning Milano's conversation with Coloduros in an alley near the bail bond office; (4) Ernstsen's account of a lengthy conversation with Milano at the bail bond office just before the posting of the second round of bail bonds.

Standing alone, the fact that Milano attended the dinner meeting proves little. Mere casual association with people who are conspiring is not an offense. There is no testimony about what was discussed at the dinner, much less what Milano said or what others said to him. There was a second meeting that night during which the principal topic was the gambling plan, but Milano had already left. Nonetheless, Milano's presence shows that he was acquainted with the other conspirators even at the very beginnings of the conspiracy.

More significant, but still not compelling, is the evidence suggesting that Milano arranged for free bail bonds in accordance with the prearranged scheme for quick release of games employees in the event of arrests. That some of the people released never had to pay for their bonds is suspicious. Bail bondsmen seldom work for free. Still, the evidence that Milano was never paid for his services was far from conclusive: someone else could have paid him, even quite legitimately. But if so, it seems strange that that person's identity was never disclosed and that Milano never called him to testify. Nonetheless, although the circumstances are highly suspicious, Milano's participation in the release is, standing alone, consistent with his contention that he was merely engaging in the legitimate pursuit of his profession. But this evidence does not stand alone.

The remaining evidence, not entirely circumstantial, demonstrates that Milano knew of the conspiracy almost from its inception and that in at least one respect he acted to further its objectives. That is all that is required to support a finding of his complicity; from knowledge of the conspiracy and...