U.S. v. Leon

Decision Date02 April 1976
Docket NumberNo. 74-1034,74-1034
Citation534 F.2d 667
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Maneer LEON et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Neil Fink, Michael S. Friedman, Detroit, Mich., for defendants-appellants.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Laurence Leff, Atty. In Charge, U. S. Dept. of Justice, Washington, D.C., Joseph S. Davies, Jr., App. Section, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before EDWARDS, PECK and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is a direct appeal by three of five defendants who were convicted by a jury of conducting a gambling business in violation of 18 U.S.C. § 1955 and of conspiracy to conduct a gambling business in violation of 18 U.S.C. § 371. Appellants present several reasons for the reversal of their convictions: (1) the district court erred in not dismissing the indictment because § 1955 of Title 18 violates the United States Constitution; (2) the district court erred in not dismissing the conspiracy count of the indictment because charging a conspiracy as well as a substantive offense requiring concerted action violates "Wharton's Rule"; (3) the district court erred in refusing to instruct the jury that the government must prove that each defendant knew that five or more persons were involved in conducting the gambling business in order to convict that defendant of either the substantive crime or of the conspiracy to commit it; (4) the district court erred in denying the motion to suppress evidence seized pursuant to a telephone interception because probable cause to believe the subject of interception was engaged in the commission of a federal crime was not established; (5) the district court erred in denying motions for acquittal because the evidence was insufficient for submission to the jury or to support the convictions because the proofs failed to show that appellants were conducting a gambling business involving five or more persons and to show that appellant Bourgeois was a participant in the gambling business conducted by Leon and Miller, and not merely an independent bookmaker; (6) the district court erred in restricting Bourgeois' cross-examination of a witness; and (7) the district court erred in not holding that the inflammatory and prejudicial closing argument of the government attorney precluded a fair trial.

The complexity of the proofs and the number of questions presented on appeal require an extensive review of the evidence. Appellants were indicted 1 on December 5, 1972 for violation of 18 U.S.C. § 1955 2 and for violation of 18 U.S.C. § 371 for conspiring to violate 18 U.S.C. § 1955. Following a lengthy trial by jury, all three were convicted of conspiracy and of the substantive offense of conducting, financing, managing, supervising, directing or owning a gambling business from March 1, 1972 to May 7, 1972, that was in violation of the laws of Michigan, involved five or more persons, and had a gross revenue of more than $2,000 on a single day. 3

A large part of the government's proofs consisted of recorded conversations intercepted from Maneer Leon's telephones pursuant to a judicial order entered on March 1, 1972 upon application of the Department of Justice and pursuant to an order granting an extension on March 24. The recordings included conversations about gambling between appellant Maneer Leon and appellants Vera Miller and Glenn Bourgeois, as well as between Leon and Milton Largent, Leonard Silbert, Al Hady, John Jarjosa, Edmond Burdziak, and John Doyle. Appellants concede in their brief that these recorded conversations indicate that ". . . Maneer Leon was a bookmaker, who accepted wagers in both sporting events and horse races, . . . that Vera Miller worked for Leon, accepting bets, collecting winnings, and paying off losses," and that "Glenn Bourgeois was a bookmaker."

In addition to the recorded conversations, government witnesses gave the following testimony. June Maxine Taylor testified that Maneer Leon was a bookmaker with whom she had placed daily bets of from one hundred to two hundred dollars, both on her own behalf and on behalf of her friends. She testified that Leon told her to call in her bets to "Vera" at a telephone number shown to belong to appellant Vera Miller, and that he instructed her to accept wagers from persons whom he would refer to her, and to make an accounting to him of winnings and losses. She indicated she took wagers for the bettors referred to her by Leon and transmitted their account figures to him.

Leroy Estrada, who admitted that he was a gambler and a small-scale bookmaker, testified that during the period in question he referred bests that were too large for him to other bookmakers, including Leon. He also testified that Leon had given him Vera Miller's telephone number so that he could call bets in to her and that he sometimes received "line" 4 information from Leon and from Miller. Estrada testified that he did not tell Leon or Miller that some of the bets he placed with them were "layoff" bets 5 and that, accordingly, he had to pay "juice" 6 to them if he lost. Estrada therefore bet with Leon for himself as well as for other people, and he testified that he shopped for a favorable line in an attempt not only to win the bet made with him but also to win the bet that he made with his own bookmaker.

Helen Alongi, a barmaid at a local establishment, testified that Bourgeois was a customer there, and that, in response to his request, she had given him a key to her home and permission to use it from time to time. The parties stipulated that one of the telephone numbers from which Leon had called Bourgeois was listed to Mrs. Alongi's address. In addition, Mrs. Alongi testified that on several occasions she had given envelopes to Glenn Bourgeois that had been left for him at the bar. She stated that this service was not unusual, and that people often gave her messages, numbers, and envelopes to transmit to others.

John Laffrey, a bettor, testified that he and Al Hady, named as a co-defendant, were friends; that Hady had introduced him to Maneer Leon; and that he had placed bets with Leon, losing from $2,000 to $3,000. Laffrey stated that he had made arrangements with Leon to transfer money to him through Hady, and that he had suggested to Hady that the latter deliver money to Leon for him.

Al Hady, who was accused of being a "collector" for Leon and who testified on his own behalf, stated that he was a salesman for a wine and liquor company, that he knew Laffrey well because his wife worked for Laffrey, and that he had delivered an envelope of money to Leon for Laffrey at the latter's request. He denied that he worked for Leon and that he ever picked up any other money for him. Hady admitted that he placed bets for himself with Leon but denied that he ever placed bets for other people.

Recorded conversations between Hady and Leon indicated, however, that Hady was making bets with Leon for others. Hady explained that he wanted Leon to think that he was making bets for other people because he and Leon were friends, and he would have felt bad taking money from Leon for his winnings if Leon had known that the bets were Hady's.

Recorded conversations between Leon and co-defendant John Jarjosa were also introduced. These conversations suggest that Jarjosa was betting with Leon both for himself and for others, and that Jarjosa owed Leon a large amount of money which Leon was attempting to collect in installments. Testifying on his own behalf, Jarjosa admitted that he was a long-time gambler and stated that he owed so much money to Leon in 1972 that Leon refused to accept any more bets until his debt was paid. Accordingly, Jarjosa testified that he had invented a fictitious third person in whose name he could make bets. He testified that his statements in the recorded conversations about receiving bets that he wanted to layoff to Leon were fabrications to persuade Leon to accept his bets.

Telephone conversations between Leon and Edmond Burdziak, a named defendant who was not tried with appellants, were also introduced. These conversations indicate that Burdziak bet with Leon either in his own capacity or as a representative of a group of bettors, or that Burdziak wrote bets on behalf of Leon.

Telephone calls between Leon and Leonard Silbert, a named defendant (who was not tried with appellants), indicated that Leon gave line information to Silbert, Silbert bet with Leon, and that Leon gave Silbert his "bottom figure," 7 the amount owed by one to the other for bets previously made.

Telephone conversations between Leon and John Doyle disclosed that Leon supplied line information to Doyle, that Doyle bet with Leon, and that Doyle was indebted to Leon.

Telephone calls between Maneer Leon and Milton Largent, a bookmaker and a named defendant not tried with appellants, were also introduced. In these conversations, Leon and Largent discussed their respective winnings and losses, exchanged line information, made bets with one another, and discussed their respective indebtedness to each other. Other evidence disclosed that Leon and Largent met at least three times during the time that Leon's telephone was being tapped, once at Leon's house and twice at a bar.

The government also played for the jury fifteen telephone conversations between Glenn Bourgeois and Maneer Leon. It is admitted, as the calls convincingly demonstrate, that Bourgeois was a bookmaker. In these conversations, all except one of them made by Leon to Bourgeois, they discussed their bookmaking activities, exchanged line information, and placed bets with each other on various sporting events.

A special agent of the Federal Bureau of Investigation, who had been in charge of the investigation, testified throughout the trial, identifying the voices in the recordings and, to a certain extent,...

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