U.S. v. Helmel

Decision Date17 September 1985
Docket Number84-2137 and 84-2234,84-2013,Nos. 84-2012,s. 84-2012
Citation769 F.2d 1306
Parties19 Fed. R. Evid. Serv. 397 UNITED STATES of America, Appellee, v. William John HELMEL, Appellant. UNITED STATES of America, Appellee, v. Arthur Charl STOWE, Appellant. UNITED STATES of America, Appellee, v. Barry Michael GLICK, Appellant. UNITED STATES of America, Appellee, v. William George PAULSEN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Richard H. Parsons, Peoria, Ill., for Stowe & Glick.

Richard L. Richards, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before BRIGHT, Senior Circuit Judge, ROSS, Circuit Judge, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge.

These are appeals by four defendants from their convictions for conducting an illegal gambling business. See 18 U.S.C. Sec. 1955. The appeals following two separate trials were consolidated for purposes of review. The most significant issue raised is the propriety of the admission into evidence of a ledger book at both trials. In addition, Barry Glick contends that certain admissions made by him should have been suppressed. William Helmel contends that the indictment was incurably vague and also that he should have been granted a severance from his codefendants. Both Helmel and Arthur Stowe raise issues relating to the sufficiency of the evidence to support their convictions, the admission of evidence, and the giving of jury instructions. Stowe also argues that evidence seized from his residence should have been suppressed due to an unlawful search. We reverse defendant William Paulsen's conviction, but affirm as to the other defendants.

BACKGROUND

The record, construed in the light most favorable to the government, reveals the following facts. In August of 1981 FBI Agent John Wellman began an investigation into a gambling operation being conducted in Davenport, Iowa. Using surveillance and pen registers, 1 the government discovered the existence of a large scale sports bookmaking organization.

The surveillance began at the Indian Ridge Apartments in Davenport and moved whenever the organization moved. Stowe and Helmel were observed together frequently, and on some occasions Helmel was seen carrying documents or papers in and out of the residences of certain codefendants. Helmel was observed entering Steffens' Tavern in Calamus, Iowa where he proceeded to a hallway near the rear of the tavern. Steffens removed a white envelope from a drawer and then entered the same hallway. Helmel then emerged carrying a white envelope. Steffens later testified that this was the usual method of paying the organization for gambling debts. Helmel thereafter left the tavern, got into a car and proceeded to several more locations, each time remaining for a short time.

Agent Wellman also testified as to his surveillance of the Winding Hills Apartments, the Appomatox Apartments, the Kimberling Club Apartments, and various defendants' residences. Numerous persons, including Stowe, Helmel and Glick, were seen meeting at these locations on a regular basis. In addition, Wellman testified as to the frequency and duration of telephone calls recorded through the pen registers at the Indian Ridge Apartments.

Wellman observed a pickup truck parked at Stowe's residence on several occasions. The truck was found to be registered to Gorden and Judi Weimann. Mr. and Mrs. Weimann testified that the truck was "signed over" to the gambling business to help pay off Mr. Weimann's gambling debt. Chris Burkhart, a codefendant, was identified by Weimann as one of the individuals who took the truck. The truck was later sold to a Davenport car dealership. Patty Koenig, a teller at a local bank, testified that the car dealership's check was endorsed and cashed by Glick.

The investigation eventually culminated in the execution of search warrants at several different locations. Numerous telephones and a great deal of gambling paraphernalia, including betting slips, charting sheets, parlay cards, sports schedules, and records of the business, were found at these locations. Specifically, the search of the Stowe residence revealed numerous telephones, hundreds of parlay cards, records of the gambling business, and other gambling paraphernalia. Arthur Stowe and two other codefendants were at the Appomatox Apartment when it was searched. Three telephones were found there, along with betting slips, charting sheets, and other paraphernalia. A search of Stowe's person disclosed nearly $10,000.00 in cash, betting slips, and written account designations of the organization's customers.

Glick's residence was also searched. In a desk in an office on the second floor agents found gambling paraphernalia and records of the business. Of special significance was a maroon loose leaf ledger, Exhibit 32. The ledger was a record of salaries and expenses of the organization and contained specific references to appellants' names. For example, the ledger contained a page for Paulsen's salary, listing the dates and amounts of the payments. The ledger's author was never specifically identified, but the fingerprints of two codefendants, William Kellenburger and Charles Smith, were found on the ledger. A handwriting analysis of the ledger entries was not done. 2

The ledger, along with the other records of the business and the betting slips, formed the basis of the prosecution's expert witness's testimony. The expert, Special Agent William Holmes, testified as to the existence, scope, duration and size of the gambling enterprise based upon his examination of the exhibits. He calculated the amount of gross wagers per day from the betting slips and stated that it was his opinion that at least twenty-six individuals were involved in conducting the business. He used the ledger found at Glick's residence to tie the other various apartments and residences together by correlating entries in the ledger to documentary evidence found at the other locations.

The jury also heard testimony from several bettors. Roger Cawiezell stated that he started placing wagers with the organization while he lived in Davenport. When he moved to Raleigh, North Carolina, he continued to make bets. He identified nine checks which were used to pay his gambling debts. He testified he mailed the checks from Raleigh to Davenport, and that each check was sent to Arthur Stowe or A.C. Stowe and each was made payable to Glick. Glick cashed the checks at a local bank.

Gary Loney, the owner of Intergrade Steel Company, testified that he placed wagers with the organization. He stated that Helmel met with him once to settle up Loney's account. Surveillance established that Helmel went to Intergrade Steel Company after meeting with Steffens at Steffens' Tavern, thus corroborating Loney's testimony. Loney also testified he met with Stowe for the purpose of making or receiving payments on the gambling activities. Loney stated his credit limit was set by "A.C." and that checks issued to pay his debts were made payable to "B. Glick Trucking, Attn: A.C. Stowe."

Richard Burns stated he placed bets with Stowe and paid money to Helmel for his gambling debts. All three bettor witnesses, Steffens, Loney and Burns, identified Helmel as one of the organization's contact men. Loney and Burns also identified Stowe.

Diane Trout testified about her job as a "line operator" for the gambling business and how she got the job through Stowe. She stated that her phone bills were paid by someone in the organization. She would leave them in her mailbox, and when she would check the mailbox later the bill would be gone and her salary, $250.00 per week in cash, would be in its place. She also testified as to the mechanics of a line operator's job. 3

Glick's admissions should also be noted. At the time Glick's house was searched, he acknowledged that he knew and placed bets with Stowe. He highlighted the structure of the gambling business and stated that Stowe was the leader who established policy and hired and fired members of the organization. He named several other persons involved in the organization and admitted that his job was to clear or cash checks from the bettors. He stated that Stowe paid him $100.00 per week for this task and estimated that he cashed approximately $5,000.00 worth of checks in a given week. Most of the checks were cashed by Patty Koenig at a local bank. He estimated the volume of total wagers to be about $150,000.00 per week. Finally, Glick disavowed knowledge of the gambling items found at his residence and stated they were found in a room rented to Stowe.

In sum, the appellants were roughly characterized by the prosecution as follows: Stowe headed the organization and made most of the major decisions regarding its operation. Helmel was one of its collection men. Glick's job was to cash gambling checks while Paulsen was characterized as a line operator. The major item of evidence against Paulsen was the ledger found at the Glick residence. It contained four pages with entries dealing with Paulsen's salary and expenses.

Twenty-one individuals were originally indicted. Fifteen pleaded guilty and did not go to trial. Arthur Stowe, William Helmel and Randolph Griffith were tried together. Both Stowe and Helmel were found guilty of conducting an illegal gambling business. 4 Stowe was also convicted of nine counts of using the mail to facilitate the gambling business. 5 Griffith was acquitted.

Barry Glick, William Paulsen and Jasper Perry were tried together. All three were found guilty of conducting an illegal gambling business. Perry has not appealed.

DISCUSSION
Exhibit 32--The Ledger

Appellants' first contention with regard to the ledger is that it was not properly authenticated. They insist that because the writer or writers of the entries...

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