U.S. v. Campion, 77-5114
| Decision Date | 17 August 1977 |
| Docket Number | No. 77-5114,77-5114 |
| Citation | 560 F.2d 751 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Carroll CAMPION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Stuart Lyon, Louisville, Ky., for defendant-appellant.
George J. Long, U. S. Atty., James H. Barr, Asst. U. S. Atty., Louisville, Ky., for plaintiff-appellee.
Before CELEBREZZE and ENGEL, Circuit Judges, and WEINMAN, * District Judge.
Robert C. Campion stands convicted, after trial to a jury in federal court, of conducting an illegal gambling business in violation of 18 U.S.C. § 1955. 1 Although Campion raises eight issues on direct appeal, we need only address his first assignment of error which we find to be dispositive. We agree with him that the evidence at trial, viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), was insufficient to prove beyond a reasonable doubt that he was "an integral participant in the (gambling) business." United States v. Leon, 534 F.2d 667, 677 (6th Cir. 1976). We therefore reverse his conviction.
Of nine defendants originally indicted for the gambling offense, only Campion and two co-defendants actually stood trial. 2 The principal evidence ostensibly linking Campion to the illegal enterprise consisted of eight telephone conversations recorded and transcribed from among more than 500 intercepted pursuant to court ordered wiretaps. These wiretaps monitored telephones operated by three of Campion's co-defendants.
On December 14, 1974, Campion placed a single incoming call to one of the target telephones. During the ensuing conversation he requested the "line" (projected point spread) on one sporting event. On December 16, he placed five incoming calls in which he reported horse race results within approximately one-half hour of the finish of successive races at a number of different out-of-state tracks. On December 16, he also participated in two calls during which he was informed of and commented upon the recent arrest by county authorities of three alleged bookmakers known to him, including two fellow defendants. One of these calls was placed by an unidentified male who terminated the conversation by providing horse race results comparable in format to those reported earlier in the day by Campion.
No direct evidence was introduced to establish that Campion was a bookmaker. The Government's own expert witness called to translate into layman's language the gambling jargon used by the defendants, testified on cross-examination that in no intercepted conversation did Campion place a bet, accept a bet or supply "line" information. 3
The only other evidence offered by the Government to implicate Campion consisted of two sheets of paper found during a search of one of the tapped telephone locations. Each sheet bore a notation reflecting the payment of $100 for "service" (i. e., the reporting of race results to bookmakers) in two successive weeks, but did not identify the respective payee. Nevertheless, the Government was permitted to argue, in summation to the jury, that these ambiguous documents were proof that Campion had a financial stake in the illegal enterprise.
Had other evidence demonstrated that Campion alone provided "service" to the gambling business during the time period in issue, we might be disposed to assign probative value to the Government's inference that Campion was the recipient of the fees. However, the record reveals that other persons contemporaneously reported race results to Campion's co-defendants over the same telephone lines. The possibility that such persons were compensated logically undermines the Government's reliance upon the financial records. In the absence of a tangible link between Campion and the disbursements, we hold that the documentary evidence was irrelevant to the issue of whether Campion "had an interest in the welfare of the business." United States v. Leon, supra at 677; Fed.R.Evid. 402.
In evaluating the sufficiency of the telephonic evidence standing alone, we are guided by recent precedents from three circuits. When we compare the weight of the evidence held to be insufficient in those cases to the quantum of proof in the record before us, we are persuaded that Campion's conviction must be overturned. In United States v. Leon, supra, Judge McCree, speaking for this Court, found that fifteen recorded telephone conversations between co-defendants were insufficient to prove that one of them, Bourgeois, had the requisite concert of purpose with the participants in the gambling venture to warrant his conviction. These conversations revealed that Bourgeois was a bookmaker who habitually exchanged line information as well as bets with the defendant Leon. Nevertheless, Judge McCree viewed this evidence as equally consistent with Bourgeois' exculpatory hypothesis that he was an independent bookmaker as with the Government's assertion that he was an active member of a large gambling enterprise. Although circumstantial evidence alone may sustain a guilty verdict, even if it fails to exclude all reasonable hypotheses consistent with a theory of innocence, United States v. Scales, 464 F.2d 371, 373 (6th Cir. 1972), where the jury is called upon to choose between "reasonable probabilities" of equal weight, one innocent and the other criminal, a conviction cannot stand. See United States v. Delay,440 F.2d 566, 568 (7th Cir. 1971).
In United States v. Todaro, 550 F.2d 1300 (2d Cir. 1977), the Second Circuit reversed a comparable conviction upon a finding that Todaro's involvement in
* * * furnishing, by means of nine or ten telephone calls, over some twelve days in February 1972, "line" information to the actual bookmakers did not adequately prove that he "participated in the operation of (the illegal, gambling) business". Id. at 1302.
In a similar vein, the Fifth Circuit has observed in United States v. McCoy 4 that
* * * not everyone who receives from or transmits line information to a bookmaker is guilty of a § 1955 violation. * * * (I)s there evidence that Bell received (or transmitted) line information to such an extent that his behavior substantially affected McCoy's business? If not, the convictions cannot be sustained. (emphasis added) 539 F.2d 1050, 1061 (5th Cir. 1976).
In United States v. Box, 530 F.2d 1258 (5th Cir. 1976), the Fifth Circuit reversed Box's conviction even though the evidence showed that he had accepted "lay off" bets from co-defendants on a number of occasions. The Court concluded that
* * * the record does not permit (Bo...
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