U.S. v. DiMuro, s. 75-1225

• Citation: 540 F.2d 503
• Decision Date: 29 June 1976
• Docket Number: Nos. 75-1225,s. 75-1225
• Parties: 2 Fed. R. Evid. Serv. 212 UNITED STATES of America, Appellee, v. Jerome DiMURO et al., Defendants-Appellants. UNITED STATES of America, Appellee, v. Roland LUNG, Defendant-Appellant. UNITED STATES of America, Appellee, v. Victor SANTARPIO, Defendant-Appellant. UNITED STATES of America, Appellee, v. Joseph DOHERTY and Thomas Hurley, Defendants-Appellants. to 75-1228.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 503

540 F.2d 503

2 Fed. R. Evid. Serv. 212

UNITED STATES of America, Appellee, v. Jerome DiMURO et al., Defendants-Appellants.

UNITED STATES of America, Appellee, v. Roland LUNG, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Victor SANTARPIO, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Joseph DOHERTY and Thomas Hurley, Defendants-Appellants.

Nos. 75-1225 to 75-1228.

United States Court of Appeals, First Circuit.

Argued March 2, 1976.

Decided June 29, 1976.

Avram G. Hammer, George F. Gormley, Boston, Mass., by appointment of the court, Charlotte Anne Perretta, Boston, Mass., by appointment of the court, David Rossman, Boston, Mass., by appointment of the court and Owen F. Brock, Boston, Mass., with whom Gorfinkle & Hammer, Judith E. Diamond, Harrington & Gormley, and Keating, Perretta & Pierce, Boston, Mass., were on brief, for defendants-appellants.

Kenneth A. Holland, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., Jeffrey M. Johnson, Special Atty., Boston Strike Force, Boston, Mass., and Shirley Baccus-Lobel, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

After trial to a jury appellants were convicted on a one count indictment charging them with conducting an illegal gambling business in violation of 18 U.S.C. § 1955. ¹ On this appeal they raise a number of claims variously challenging the applicability of § 1955 to their acts and the sufficiency of the evidence, as well as claims directed to the propriety of certain evidentiary admissions in the course of trial. ²

Appellants' first contention is that the trial court erred in ruling that the government did not have to prove their various gambling operations were a "single business," ³ and that the government's evidence failed to show the existence of a single gambling operation. This issue is best examined in light of the factual circumstances of the present case. The government's evidence at trial was derived from two main sources: wiretapped conversations from a telephone line used by appellant Santarpio covering the period June 3 through June 15, 1971; and a large quantity of gambling paraphernalia seized from five separate locations as the result of searches carried out on November 13, 1971.

In regard to the wiretaps, appellant Santarpio was a participant in each of the twenty-five conversations introduced at trial. In one set of intercepted conversations he called appellants Hurley and Doherty at 585 Boulevard in Revere, Massachusetts, and provided them with information on various horses; in turn he was informed by the two appellants about results from certain racetracks in New York, New Jersey, Delaware and elsewhere. In a second set of calls Santarpio was shown to have telephoned appellants Colangelo, DiMuro and Mantica who allegedly ran a gambling operation out of the Handy Lunch Shop and the Marsh Club (which were adjacent to one another on American Legion Highway in Revere). In these conversations Santarpio asked for and obtained race results, and received the betting "line" for certain professional sports. See United States v. Schaefer, 510 F.2d 1307, 1311 & n.6 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). He also placed a wager with appellant DiMuro, and a "lay off" bet ⁴ with appellant Mantica. There were also discussions of how much was owed Santarpio as a result of various bets certain of these appellants previously had made with him. A third set of conversations was between Santarpio and appellant Roland Lung at 23A Tyler Street in Boston. In one instance Santarpio called Lung to inform him that a horse in a certain race was a favorite and to tell him the odds he ought to accept on the horse. In other instances Lung telephoned Santarpio to convey race results and to "lay off" certain wagers with him. In one of the calls from Lung there was a discussion of how much he and Santarpio owed one another as the result of several days' wagering. In sum, the wiretap evidence tended to show Santarpio as a pivotal figure with whom the other appellants exchanged race results and betting information and with whom certain of the appellants "laid off" bets.

Appellants contend that while the betting slips and other paraphernalia seized from the four locations noted above may indicate separate small scale gambling operations at each of these places, there was no unified gambling business. Specifically, they claim that the transmittal of gambling information and the sporadic acceptance of lay off wagers are insufficient to merge what were unconnected bookmaking operations into a § 1955 offense, and that there was not sufficient evidence to connect together the various groups of appellants who dealt separately with Santarpio into a unified business relationship.

These claims cannot prevail. The exchange of line and other gambling information are necessary and useful functions in a gambling enterprise and persons who carry out such functions have been held to be engaged in "an illegal gambling business." United States v. Joseph, 519 F.2d 1068, 1071 (5th Cir. 1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312, 44 U.S.L.W. 3471 (1976); United States v. Schaefer, supra at 1311; United States v. Ceraso, 467 F.2d 653, 656 (3d Cir. 1972). Similarly persons who make and accept lay off bets have been found to perform an indispensible task in the maintenance of an illegal gambling business. United States v. Thomas, 508 F.2d 1200, 1205 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100 (1975); United States v. Sacco, 491 F.2d 995, 1002-03 (9th Cir. 1974) (en banc); see United States v. Schaefer, supra at 1312.

With regard to the sufficiency of the evidence on this issue, close examination of the transcribed conversations between the various appellants and Santarpio discloses discourse dealing with the exchange of line and other gambling information and/or lay off betting. While the evidence with respect to some of these activities is stronger for certain of the appellants than for others, there is a reasonably clear indication that each of them frequently conferred with Santarpio concerning various aspects of a gambling business. Viewing the evidence as whole and in the light most favorable to the government, we are satisfied that all the appellants were systematically involved in a gambling business. See United States v. Schaefer, supra at 1312-13; United States v. Sacco, supra at 1004. ⁵

Appellants also challenge as unlawful the June, 1971 intercepts on the telephones used by Santarpio, and claim that the evidence obtained therefrom should have been suppressed. There are two aspects to their challenge. First, they contend that then Attorney General Mitchell improperly delegated his power to authorize an application seeking approval of the intercepts in question. Specifically, appellants point to the language of18 U.S.C. § 2516 which provides that an Assistant Attorney General may be "specially designated" to authorize such an application. They note that in the present case the memorandum initialed by Attorney General Mitchell provided that Assistant Attorney General Wilson was "specially delegated" to make the authorization. They contend that this choice of language (i. e., "delegate" instead of "designate") amounted to an illegal transfer of authority to an assistant which only the Attorney General himself was empowered to exercise. However, we do not find this claim to be persuasive. There was no misidentification of the Assistant Attorney General whom the Attorney General sought to designate. See United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). The fact that the word "delegate" was used is of little consequence and does not constitute a failure to comply fully with the requirements in Title III such as would render the interception of wire or oral communications "unlawful." See id. at 574-75, 94 S.Ct. 1849.

Appellants also contend that the application for the telephone intercepts did not set forth an adequate justification as to why the wiretaps were needed and that it failed to provide a full and complete statement as to why other investigative procedures would not suffice. See 18 U.S.C. § 2518(1)(c) and (3) (c). We do not find merit in these claims.

An examination of the affidavit presented to the district court in support of an order for a wire intercept and a pen register ⁶ on telephone facilities at 58 Delano Avenue, Revere, indicates there was adequate basis for the court to have found probable cause that the facilities in question were being used in activities that violated § 1955. The affidavit, prepared by Special Agent Lucksted of the FBI, set forth information received from three confidential informants who were indicated to have provided reliable information on unlawful gambling activities on numerous previous occasions. Each of the informants was known by the agent to be engaged in gambling operations, and information provided by each was based upon personal observations and contacts with the unlawful gambling enterprise allegedly conducted at 58 Delano Avenue.

One of the informants was said to have indicated that between March and May, 1971 certain named individuals (one Shane and one Plotkin) ⁷ who were personally known to him were using for their gambling operation the telephones at the location in question; that the informant himself had "exchanged . . . wagering information" with both men; and that he had placed bets with them over the telephone for a number of months as recently as May, 1971. From discussions with Shane and Plotkin this informant had learned that their operation grossed in excess of $10,000 business a day and that they laid off bets with other Massachusetts bookmakers. A second confidential informant provided joint information...