U.S. v. Corrar

Decision Date22 January 2007
Docket NumberNo. 1:03CR444 JEC.,1:03CR444 JEC.
Citation512 F.Supp.2d 1280
PartiesUNITED STATES of America, Plaintiff, v. Danny CORRAR, Defendant.
CourtU.S. District Court — Northern District of Georgia

Robert C. McBurney, Office of United States Attorney, Atlanta, GA, for Plaintiff.

Page Anthony Pate, Office of Page A. Pate, Atlanta, GA, for Defendant.

ORDER & OPINION

JULIE E. CARNES, District Judge.

This case is presently before the Court on defendant's Motion for Judgment of Acquittal [95]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant's. Motion for Judgment of Acquittal should be GRANTED in part and DENIED in part.

BACKGROUND

This is a case about an attempt to collect on a gambling debt. The United States alleges that Danny Corrar ("Defendant"), Patricia Affatigato ("Affatigato"), and Mikey Glorioso ("Glorioso") are "agents" for PlayWithAl.com ("PWA"), an online sports book operating out of the Netherlands, Antilles. (T2-41-42, 45-46). All three, the Government asserts, were involved in an effort to collect a debt from Larry Parker ("Parker"), a Georgia resident, and himself an agent of PWA. (T2-280). Affatigato was not before the Court at trial. (T1-22). Meanwhile, this Court entered a judgment of acquittal on the only count with which Glorioso was charged, thereby dismissing him from the case. (T3-520). The remaining charges against defendant, however, went before a jury, which convicted him of violating the Travel Act, 18 U.S.C. § 1952, and the Wire Act, 18 U.S.C. § 1084.

Both counts stem from defendant's efforts to collect an outstanding debt from Parker. Parker is a bar manager who first began betting with PWA when he lived in Florida. (T2-374). In June of 2002, Parker moved to Georgia, where his former contact with PWA put him in touch with defendant, a resident of New York, who, together with Affatigato, operate a children's entertainment business. (T1-45). Defendant set Parker up as an "agent" of PWA, providing him with ten account numbers which he could distribute to his friends and customers. (T2-280). This scheme did not require Parker to personally receive or transmit his friends' wagers. (T2-281). Parker testifies that he was initially reluctant to hand out account numbers to his friends. (T1-283). This reluctance was apparently justified, because his friends lost money, and by the summer of 2002, Parker found himself on the hook to PWA for at least $20,000. (T-299).

In response to his debt problems, Parker turned to the FBI, who helped him engage in wiretapping of his phone conversations with defendant and Affatigato. Parker contends that he never attempted to collect money from his friends to pay back his debt to PWA. (T2-293-94). In November of 2002, defendant visited Parker at his workplace, where Parker says defendant tried to collect the debt and became agitated and angry. (T-395). In June of 2003, defendant again visited Georgia, this time accompanied by Glorioso, planning to meet Parker and to collect the debt. (T3-435). The meeting, however, was a sting, and both defendant and Glorioso were arrested. (T-473).

DISCUSSION
I. The Travel Act

Count One of the indictment alleges a violation of the Travel Act. The Travel Act, codified at 18 U.S.C. § 1952, identifies as subject to criminal sanctions "[w]hoever travels in interstate ... commerce ... with the intent to ... promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, ... and thereafter performs ... any of the acts specified." A Travel Act conviction thus requires: 1) an unlawful activity, 2) knowledge by the defendant of the unlawful activity, and 3) use of interstate commerce to facilitate the carrying out of the unlawful activity. U.S. v. Corona, 885 F.2d 766, 771 (11th Cir.1989). The United States has failed to prove a violation of the Travel Act count because it demonstrated neither an underlying unlawful activity nor facilitation.1

A. The Defendant's Position

Count One of the Government's indictment alleges that the unlawful activity underlying the Travel Act conviction is a violation of O.C.G.A. § 16-12-22, Georgia's statute barring commercial gambling. (Indictment [1]). O.C.G.A. § 16-12-22 provides that "[a] person commits the offense of commercial gambling when he intentionally does any of the following acts:

1. Operates or participates in the earnings of a gambling place;

2. Receives, records, or forwards a bet or offer to bet; [or]

3. For gain, becomes a custodian of anything of value bet or offered to be bet."2

The unlawful activities underlying a Travel Act violation must be "in violation of the laws of the State in which they are committed or of the United States." 18 U.S.C. § 1952. This court must therefore consider whether there is evidence of any acts committed in Georgia, which acts would constitute a violation of O.C.G.A. § 16-12-22.

Defendant alleges that the United States failed to present evidence that Parker or anyone else committed acts in Georgia that would constitute a violation of Georgia's commercial gambling statute. According to the defendant, "[t]he only way Parker could have violated the Georgia statute is if he received, recorded or forwarded bets to Corrar or PWA, or if he was acting as a custodian of money bet by others." (Def. Corrar's Br. in Supp. of His Mot. for J. of Acquittal ("Def.Br.") at 4-5). The evidence adduced at trial showed that Parker provided account numbers to several of his friends and customers. (T2-288-89). These friends, however, did not place bets through Parker. Instead, they called PWA directly or used the company's website. (T2-297). This evidence does not establish that Parker "receive[d], record[ed], or forward[ed]" any bets. O.C.G.A. § 16-12-22(2).

However, despite defendant's characterizations, receiving bets is not the "only way" Parker could have violated the Georgia statute. (Def. Br. at 4-5). O.C.G.A. § 16-12-22(a)(1) covers anyone who "participates in the earnings of a gambling place." As an agent of PWA, Parker was entitled to collect a percentage of each losing bet any of his friends played on PWA accounts assigned to Parker. (T2-281). Had Parker collected any money from his friends, he would have been entitled to a portion of these earnings. (Id.) It is thus possible that Parker meets the requirements of O.C.G.A. § 16-12-22(a)(1).

Unfortunately, there is no Georgia case law defining what it means to "participate[] in the earnings of a gambling place."3 This phrase is susceptible to multiple interpretations. On the one hand, participating in earnings could require that the participant actually receive the earnings of the business. This sense is what courts mean when they refer to a partnership agreement, corporate stock, or security creating "the right to participate in ... earnings" of a business. See, e.g. Cent. States, Southeast and Southwest Areas Pension Fund v. Creative Dev. Co., 232 F.3d 406, 425 (5th Cir.2000) (partnerships); Himmel v. C.I.R., 338 F.2d 815, 818 (2d Cir.1964) (stock); Richmond, Fredericksburg and Potomac R. Co. v. C.I.R, 528 F.2d 917, 918 (1975) (securities). Entitlement to the earnings of a business creates a "right to participate." Participation itself is the actual act of receiving the earnings.

On the other hand, "participate[] in the earnings of a gambling place" may refer more broadly to merely seeking to profit in a gambling place's successful operation. This interpretation is possible if "participates" is read to mean "to take part in something" and "earning" is read to mean "the act or process of acquiring." Webster's Third New International Dictionary Unabridged 1646, 714 (1986).

The former interpretation is the more natural reading of the statute. First, "earnings" is used in its noun form. This fact is apparent both because it appears as a plural, and because it does not take a direct object. If "earnings" referred to "the act or process of acquiring," it would not need an "s," and it would be followed by a description of what it was that was being acquired, e.g. "a profit." "Earnings" consist of "[r]evenue gained from labor or services, from the investment of capital, or from assets." Black's Law Dictionary 548 (8th Edition 2004). Earnings are thus things, not acts or processes. The best reading of "participates," then, is not "to take part in something" but to "partake," which can mean "share in" or "receive a portion." Webster's Third New International Dictionary Unabridged 1645-46 (1986).

Second, this interpretation fits with the statute as a whole. The entirety of O.C.G.A. § 16-12-22(a)(1) reads "[o]perates or participates in the earnings of a gambling place." That "participates in the earnings of a gambling place" appears after the conjunction "or" indicates that it is meant to capture a type of conduct that "operates" does not. Read in this light, it appears that the intent of the phrase is to foreclose a defense by a mischievous investor who bankrolls a commercial gambling operation but then claims, when faced with prosecution, that he did not "operate" the enterprise. If O.C.G.A. § 16-12-22(a)(1) instead captured anyone who had the potential to profit from gambling, the other six subsections of O.C.G.A. § 16-12-22(a), which define additional acts constituting commercial gambling, would be rendered superfluous.

This Court need not resolve the meaning of this phrase definitively, however, because O.C.G.A. § 16-12-22(a) requires that a person "intentionally" participate in the gambling place's earnings. There is no indication in the record that Parker sought to keep a share of either the defendant's or PWA's earnings. While Parker was entitled to a share of the losing bets played on his accounts, he insists that he never attempted to collect those bets from any of his friends. (T3-386-87). It appears that Parker never intended to profit from his agent...

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