U.S. v. Heacock

• Decision Date: 24 August 1994
• Docket Number: No. 93-7648,93-7648
• Citation: 31 F.3d 249
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin Wayne HEACOCK, Jr., a/k/a "Johnny B. Williams", Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 249

31 F.3d 249

UNITED STATES of America, Plaintiff-Appellee, v. Alvin Wayne HEACOCK, Jr., a/k/a "Johnny B. Williams" Defendant-Appellant.

No. 93-7648.

United States Court of Appeals Fifth Circuit.

Aug. 24, 1994.

Larry O. Norris, Hattiesburg, MS, for appellant.

John R. Hailman, Asst. U.S. Atty., Oxford, MS, Richard Starrett, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, MS, for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, JOLLY, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Alvin Wayne Heacock, Jr. appeals his criminal convictions for various illegal gambling related offenses. He argues eleven points of error, but most have little merit. We therefore focus our attention on (A) Heacock's sufficiency of the evidence challenge to his conviction under 18 U.S.C. Sec. 1955--operation of an illegal gambling business--and (B) Heacock's legal challenge to his conviction under 18 U.S.C. Sec. 1952--interstate travel in aid of racketeering. We hold that the judgment of conviction is error-free, and therefore affirm.

I

Heacock was a bookie in Hattiesburg, Mississippi. Heacock controlled a fairly large gambling operation, with several "associates" operating bookmaking offices for him in several cities. Many of Heacock's gambling partners testified at trial concerning Heacock's gambling business. The evidence showed how bets were made, what types of bets were made, and how money was moved between cities. Further, there was testimony to show that Heacock and his associates took deliberate steps to avoid the paper trails of the gambling operations, that Heacock had a practice of "hiding" money--in the floor at one of his apartments and in alias-named safety deposit boxes--and, finally, that Heacock's real profits differed significantly from his reported profits.

In addition to the testimony from Heacock's gambling comrades, the government produced evidence from a police search of Heacock's residence that was conducted on December 17, 1990. As a result of that search--and as the result of a 1985 raid on Heacock--the government obtained a great deal of evidence that Heacock was conducting illegal gambling. Part of the evidence included cassette recordings of illegal bets being made. Further, the government introduced into evidence police photographs of the scene at Heacock's residence. In any event, this generally overwhelming evidence concerning Heacock's gambling operations, served as the basis for Heacock's indictment in October of 1992 and his ultimate conviction.

II

Heacock was indicted in the Northern District of Mississippi in an 11-count indictment charging: a scheme to conceal from the IRS in sixteen different ways the nature and extent of his bookmaking operation between 1980 and 1992 in violation of 18 U.S.C. Sec. 1001 (Count 1); a conspiracy to impede the IRS from learning his sources and amounts of gambling income and his cash transactions in violation of 18 U.S.C. Sec. 371 (Count 11); conducting an illegal gambling business with five or more persons from October 2, 1987 to January 22, 1988, in violation of 18 U.S.C. Sec. 1955 (Count 2); using the mail on four occasions to distribute gambling proceeds in violation of 18 U.S.C. Sec. 1952 (Counts 3-6); and, finally, laundering proceeds of State RICO violations involving gambling in violation of 18 U.S.C. Sec. 1956 (Counts 7-10).

On Heacock's motion under Fed.R.Civ.P. 18, trial was moved from Oxford, Mississippi to Hattiesburg, his city of residence, 250 miles away in the Southern District of Mississippi. After trial--conducted from May 24 through June 2, 1993--the jury convicted Heacock on all counts. On October 6, 1993, the district judge, after finding Heacock had threatened the family of the detective investigating him, had understated his income by over $600,000 and was still concealing substantial assets, nevertheless departed downward substantially from the guidelines and sentenced Heacock to serve 60 months concurrently on each count and to pay a $450,000 fine. Heacock filed a timely notice of appeal.

III

A

On appeal, Heacock argues that there was insufficient evidence to support his conviction under 18 U.S.C. Sec. 1955 for operating an illegal gambling business. In reviewing challenges to sufficiency of the evidence, this court views the evidence in the light most favorable to the jury verdict and affirms if a rational trier of fact could have found that the government proved all essential elements of the crime beyond a reasonable doubt. United States v. Ruiz, 987 F.2d 243, 249 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 123 (1993). All credibility determinations and reasonable inferences are to be resolved in favor of the jury's verdict. See id.

Section 1955 defines "illegal gambling business" as

a gambling business which--

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in a single day.

18 U.S.C. Sec. 1955(b)(1) (emphasis added). Heacock argues that the government failed to prove that five or more persons were involved in aiding the conduct of Heacock's illegal gambling business between October 2, 1987 and January 22, 1988, as charged in the indictment. We find, however, that the evidence sufficiently established the "jurisdictional five."

To be counted as a part of the jurisdictional five, a person or entity must have provided services "necessary or helpful" to the gambling operation. Participants have included everything from layoff bettors ¹ and line services ² to waitresses who serve drinks. Only regular bettors are excluded from the count. See United States v. Boyd, 566 F.2d 929, 934-35 (5th Cir.1978).

(1)

The record reveals that in addition to Heacock, at least four other persons were involved in the operation of the illegal gambling business. The first was Dr. Jeffrey Topping, who was a psychology professor at Mississippi State University in Starkville, Mississippi, and who testified that from 1980 until gambling raids on his home in March 1988, he operated a bookmaking office for Heacock in Starkville. Heacock received his bets from "associates" like Topping--a service that no doubt was necessary or helpful to Heacock's operation--and no one disputes that Topping was involved during the count two period. Heacock and Topping make two of the jurisdictional five.

(2)

Next, United Productions, a line service from Las Vegas can be counted as the third member of the jurisdictional five. ³ According to testimony from bookmaking expert Tommy Patterson, up-to-date professional line services are essential to a large bookmaker like Heacock in operating a profitable gambling business. United Productions was just such a service, providing "up to the second, up to the minute" lines on current games to anyone who called them on their "900" number. An analysis of Heacock's long-distance toll records reflected 64 separate calls from Heacock's telephone numbers to United Production's "900" number line service during the count two time period. United Productions was an essential part of Heacock's gambling operations and is the third member of the jurisdictional five.

(3)

The fourth member of the jurisdictional five is another line service from Las Vegas, known as J & J Sports Services ("J & J"), owned by Christine Fenton. Fenton testified at trial, and she exhibited a ready familiarity with Heacock and his business. She knew Heacock as "Wayne--# 793," a long-time client, and her only client in Hattiesburg, Mississippi. She produced business records showing Heacock's address in Hattiesburg, and she testified that Heacock used her service in all seasons except summer baseball season, which was consistent with the testimony of other witnesses who knew Heacock's gambling practices.

Heacock challenges J & J as a member of the jurisdictional five, however, arguing that there is no evidence to show that he used J & J's line service during the count two time period, from October 1987 through January 1988. We find that the evidence is sufficient to support the conclusion that J & J provided service to Heacock throughout the relevant period. First, there was direct evidence from Fenton herself that Heacock began using her service in September of 1986, "[t]o the best of [her] knowledge."

Fenton's testimony was supported by other evidence that showed that Heacock used J & J both before and after the relevant time period, suggesting that it was far more likely than not that J & J was also involved during the relevant period of time, inasmuch as no reason was offered for the exclusion of such a gap in time. Fenton testified that Heacock paid her three hundred dollars per month for use of her line service (which was different from United Productions who charged its customers via a "900" toll telephone number), and one of Heacock's former assistants recalled that Heacock paid three hundred dollars per month for line updates during the time that she worked for him, before the count two period. An actual three hundred dollar money order from "Wayne--# 793" was produced as documentary evidence to show that Heacock used J & J's service after the relevant time period.

Finally, there was testimony explaining that it would make sense for a bookmaker to have more than one line at any given time period, for example, both J & J and United Productions. In sum, there was both direct and circumstantial evidence to show that Heacock used J & J Sports Services during the count two period. We find that evidence sufficient to support the conclusion that J & J Sports Services was the fourth member of the jurisdictional five. ⁴

(4)

The fifth member of the...