U.S. v. Joseph, 74-1156

• Decision Date: 22 September 1975
• Docket Number: No. 74-1156,74-1156
• Citation: 519 F.2d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John JOSEPH, Bryan Roberts, Milton Kothman, Victor Ganem, Richard Dick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1068

519 F.2d 1068

UNITED STATES of America, Plaintiff-Appellee, v. John JOSEPH, Bryan Roberts, Milton Kothman, Victor Ganem Richard Dick, Defendants-Appellants.

No. 74-1156.

United States Court of Appeals Fifth Circuit.

Sept. 22, 1975.

Edward J. Ganem, Victoria, Tex., for Ganem.

J. Edwin Smith, Houston, Tex., for Roberts.

Donald S. Thomas, Donald S. Thomas, Jr., Austin, Tex., for Joseph.

Jack Paul Leon, San Antonio, Tex., for Kothman.

Wayne L. Hartman, Arthur L. Lapman, Victoria, Tex., for Dick.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Virgil M. Wheeler, Jr., New Orleans, La., for amicus curiae.

Appeals from the United States District Court for the Southern District of Texas.

Before RIVES, GODBOLD and GEE, Circuit Judges.

PER CURIAM:

On February 2, 1973, a jury found the five defendants guilty of conspiracy to operate an illegal gambling business and of the substantive offense of operating an illegal gambling business. (See 18 U.S.C. § 371 and § 1955.) The district court entered judgments of conviction on the jury's verdict. We discuss

only two issues ¹ on appeal: (1) whether an irregularity in the order authorizing recording of their telephone conversations rendered the recordings inadmissible in evidence, and (2) whether there was sufficient evidence to support the jury's verdicts. We affirm the judgments of conviction.

FACTS

Richard Dick and three other men, who were not tried with him, operated in Victoria, Texas, a gambling establishment (hereafter referred to as Victoria or Victoria bookmakers). They worked in a central place of business, accepting wagers usually communicated by telephone on high school, college and professional sporting events. Ganem operated a pool hall in Victoria and acted as an agent for the Victoria bookmakers, relaying wagers placed by patrons of his pool hall and handling the necessary financial arrangements collecting from losers and paying winners. Line ² and other gambling information was exchanged by Victoria and three of the appellants who were professional gamblers living in other Texas cities (Joseph in Austin, Roberts in Ft. Worth, and Kothman in San Antonio). Generally, they were not the Victoria bookmakers' only source of "line." They and Victoria also placed bets with each other. Although the transcript of the wiretaps reveal that several of the appellants talked of some of those wagers as "balancing the books," ³ a reconstruction and tabulation of the telephone transactions makes it seem unlikely that the Victoria books were balanced. The record does reveal, however, that the Victoria bookmakers did use their bets with Joseph, Roberts and Kothman to increase or decrease their wagers on contests on which their customers' wagers were not sufficient for the yield which they desired.

AUTHORIZATION PROCEDURE

The first issue is whether the wiretap order was insufficient on its face because it named, as the Justice Department official authorizing the wiretap application, an Acting Assistant Attorney General whose authority had lapsed pursuant to the provisions of the Vacancies Act, 5 U.S.C. § 3348. The appellants, in their briefs (Joseph's brief, pp. 29-31) and in oral argument, do not contest the government's statement that the Attorney General, rather than the named official in fact authorized the application. Under facts identical with the ones in the instant case, this Court in United

                States v. Robertson, 5 Cir. 1974, 504 F.2d 289, reh. en banc denied, 506 F.2d 1056, held that this particular defect did not make an order facially insufficient.  However, the fact that the Acting Assistant Attorney General's authority had expired was presented to the Robertson court only in the petition for a rehearing en banc.  The rationale of the Robertson decision was that "the congressional intent (to limit the use of wiretap) is satisfied when the head of the Justice Department personally reviews the proposed application and determines that the situation is appropriate for employing (the) extraordinary investigative measure (of wiretapping)."  Robertson, supra at 292.  That rationale applies to the instant situation.  4  We hold that Robertson controls and that the recordings were admissible in evidence
                

SUFFICIENCY OF THE EVIDENCE

The second issue is whether there was evidence sufficient to support the jury's conclusion that at least five (5) persons conducted the Victoria bookmaking business and that each of the appellants helped conduct that business. A violation of 18 U.S.C. § 1955 occurs only where five or more persons conduct an illegal gambling business. ⁵

Appellants concede that there were four persons conducting the gambling business Dick and his three associates who were not tried with him. We conclude that Dick and each of the other appellants helped conduct this business. Ganem was an associate of the bookmakers, passing on to them bets and acting as one of their disbursement agents. Agents, such as he, must be counted in deciding whether at least five persons are conducting a gambling business. See United States v. Becker, 2 Cir. 1972, 461 F.2d 230; United States v. Riehl, 3 Cir. 1972, 460 F.2d 454. Joseph, Roberts and Kothman helped the Victoria bookmakers by providing them with line and other gambling information. They served, too, as a means by which the Victoria bookmakers could increase, decrease or eliminate their risk on a particular event. A person who performs a necessary function other than as a mere customer or bettor in the operation of illegal gambling "conducts an illegal gambling business." United States v. Jones, 9 Cir. 1974, 491 F.2d 1382, 1384.

"The only exclusions intended by Congress were the individual player or bettor and not the professional bookmaker who also in the course of his business bets.

" 'Thus Congress' intent was to include all those who participate in the operation of a gambling business, regardless (of) how minor their roles and whether or not they (are) labelled agents, runners, independent contractors or the like, and to exclude only customers of the business.' United States v. Becker, 461 F.2d 230, 232 (2d Cir. 1972). 'As the House Committee Report...