U.S. v. Mackey, No. 76-2500

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, CLARK and RONEY; CLARK
Citation551 F.2d 967
PartiesUNITED STATES of America, Plaintiff-Appellee, v. George Franklin MACKEY, Jr., Leroy Crist and Michael J. Gouglas, Defendants-Appellants.
Decision Date05 May 1977
Docket NumberNo. 76-2500

Page 967

551 F.2d 967
UNITED STATES of America, Plaintiff-Appellee,
v.
George Franklin MACKEY, Jr., Leroy Crist and Michael J.
Gouglas, Defendants-Appellants.
No. 76-2500.
United States Court of Appeals,
Fifth Circuit.
May 5, 1977.

Page 968

Robert J. Randolph, Stuart, Fla., for defendants-appellants.

Robert W. Rust, U. S. Atty., Don R. Boswell, Nathaniel H. Speights, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before WISDOM, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

George Franklin Mackey, Jr., Leroy Crist and Michael Gouglas raise one issue on this appeal from their convictions for conducting and conspiracy to conduct an illegal gambling operation in violation of 18 U.S.C. §§ 371 & 1955. Defendants contend that reversible error occurred when the trial court failed to strike testimony of witnesses who were unindicted coconspirators with the defendants but who were not disclosed as such in response to a pre-trial bill of particulars filed under Fed.R.Crim.P. 7(f). Finding no error we affirm.

The gambling operation involved the selling of bolita tickets, a form of "numbers game" gambling. The scheme involved two separate weekly betting pools, one based on a number drawn and one on a number calculated. Tickets sold on Tuesdays would involve bets on any number from one to ninety-nine. This was known as the "Puerto Rican number" because in Puerto Rico at approximately 11:00 A.M. on Wednesdays a number is drawn in connection with the legal, government-operated lottery in that country. Two designated digits from this lengthy number formed the winning number for this gambling operation. In addition to the "Puerto Rican number" was that the government referred to as the "dog number." Bets on this number were taken each Friday and Saturday. The winning number was derived by adding together all payoffs from bets at a parimutuel racetrack in Dade County, Florida. The first two numbers to the left of the decimal in the resulting sum were then used, in inverse order, as the winning number for this gambling operation. Four street sellers of these tickets testified against the defendants. Their function in the scheme was to receive the money from bettors and record each bet. The bolita tickets and money were then turned over to others in the conspiracy. Two of the sellers testified to receiving five percent of the total bets they

Page 969

sold while the other two allegedly retained fifteen percent of their sales. No single street seller was able to implicate all three defendants. Objections were lodged against this testimony and defendants moved to strike it. The government does not contend that the conviction can stand in the absence of this testimony.

Count I of the indictment alleged that defendants did

knowingly, wilfully and unlawfully combine, conspire and agree together and with each other and with Stephen S. Horton, an unindicted coconspirator, together with other persons to the Grand Jury unknown, to commit offenses against the United States, to-wit: violations of Section 1955, Title 18, United States Code . . . .

Before trial defendants presented a motion for bill of particulars in which, inter alia, were sought "the names of any unindicted coconspirators not known to the Grand Jury at the time of the indictment, but now known to the Government." This request was granted by the magistrate and no review of his order was sought from the trial court. The names of the four street sellers who testified were not disclosed by the Government. When objections were offered to their testimony, the court rejected the Government's argument that they were not unindicted coconspirators. However, after holding a hearing in which the court attempted to ascertain what prejudice to the defendants had resulted from this failure to respond properly to the court's order, the court ruled that permitting the testimony to stand did not prejudice the defendants' rights.

During the hearing, the defendants alleged...

To continue reading

Request your trial
45 practice notes
  • U.S. v. Cole, No. 82-5455
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 19, 1985
    ...v. Cantu, 557 F.2d 1173, 1178 (5th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1236, 55 L.Ed.2d 763 (1978); United States v. Mackey, 551 F.2d 967, 970 (5th The superseding indictment in this case tracked the language of the statutes involved and adequately informed appellants of the ch......
  • U.S. v. Martinez, Cause No. 3:08-CR-3354-KC.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 27, 2009
    ...of the charges against him, and to enable double jeopardy to be pled in case of a subsequent prosecution." United States v. Mackey, 551 F.2d 967, 970 (5th Cir.1977); see also United States v. Shepard, 462 F.3d 847, 860 (8th Cir.), cert. denied, 549 U.S. 1099, 127 S.Ct. 838, 166 L.Ed.2d......
  • State v. Marti, No. 62510
    • United States
    • United States State Supreme Court of Iowa
    • March 19, 1980
    ...prejudiced by denial of the motion. Consequently, we decline to reverse trial court's exercise of discretion. See United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 1977) (dictum); United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969) (per curiam); United States v. White, 370 F.2d 559......
  • United States v. Thevis, Crim. No. C78-180A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 18, 1979
    ...of his were prejudiced by the denial." 1 Wright, Federal Practice & Procedure § 130 at 295 (1969); United States v. Mackey, 551 F.2d 967, 970 (5 C.A.1977); United States v. Bearden, 423 F.2d 805 (5 C.A.1970), cert. denied 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68 (1970). Because of ......
  • Request a trial to view additional results
45 cases
  • U.S. v. Cole, No. 82-5455
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 19, 1985
    ...v. Cantu, 557 F.2d 1173, 1178 (5th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1236, 55 L.Ed.2d 763 (1978); United States v. Mackey, 551 F.2d 967, 970 (5th The superseding indictment in this case tracked the language of the statutes involved and adequately informed appellants of the ch......
  • U.S. v. Martinez, Cause No. 3:08-CR-3354-KC.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 27, 2009
    ...of the charges against him, and to enable double jeopardy to be pled in case of a subsequent prosecution." United States v. Mackey, 551 F.2d 967, 970 (5th Cir.1977); see also United States v. Shepard, 462 F.3d 847, 860 (8th Cir.), cert. denied, 549 U.S. 1099, 127 S.Ct. 838, 166 L.Ed.2d......
  • State v. Marti, No. 62510
    • United States
    • United States State Supreme Court of Iowa
    • March 19, 1980
    ...prejudiced by denial of the motion. Consequently, we decline to reverse trial court's exercise of discretion. See United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 1977) (dictum); United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969) (per curiam); United States v. White, 370 F.2d 559......
  • United States v. Thevis, Crim. No. C78-180A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 18, 1979
    ...of his were prejudiced by the denial." 1 Wright, Federal Practice & Procedure § 130 at 295 (1969); United States v. Mackey, 551 F.2d 967, 970 (5 C.A.1977); United States v. Bearden, 423 F.2d 805 (5 C.A.1970), cert. denied 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68 (1970). Because of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT