U.S. v. Mattucci, 73-1900

Citation502 F.2d 883
Decision Date22 August 1974
Docket NumberNo. 73-1900,73-1900
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Phillip J. MATTUCCI et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Thomas A. Livingston, John L. Doherty, Pittsburgh, Pa., for appellants; Dennis J. Clark, Pittsburgh, Pa., on brief.

W. Robinson Watters Asst. U.S. Atty., for appellee; William W. Milligan, U.S. Atty., Columbus, Ohio, on brief.

Before WEICK, McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

The five appellants in this matter were convicted of operating an illegal gambling business in violation of 18 U.S.C 1955, a part of Title VIII of the Organized Crime Control Act of 1970. 1

To constitute the basis for an offense under Section 1955, the gambling business must violate a relevant state or local law, 2 have five or more persons involved in its conduct, and either be in substantial continuous operation for more than 30 days or have a gross revenue of $2,000 or more in a single day.

Commencing August 18, 1972 government agents conducted a surveillance of the Midway Club, located in Steubenville, Ohio, which culminated in a raid of the premises on October 12, 1972. Defendants-Appellants were subsequently charged with violating the federal act.

The evidence presented to the jury revealed that Phillip Mattucci was the owner of the Midway Club and that defendants Betras, DeBellis and Barilla were employed by Mattucci as dealers in a gambling game that was operated on the premises. The fifth defendant, James Simone, was essentially a guard and a doorman. The gambling activity carried on at the Midway Club was a form of dice game known as 'Barbut', a game in which customers bet against one another but not against the house. The proofs showed that in a Barbut game, the house does not itself gamble, but provides the facility and the dealers who actually handle the dice. The house takes a percentage of the winnings of each game. The minimum bet in any given game at the Midway Club was $5 on a single throw of the dice and the pot size varied greatly. The winner would pay to the house 2 and 1/2 percent of the amount he won, exclusive of his own bet. Mattucci testified that the Barbut game was the only source of his $38,000-$40,000 annual income.

Appellants assign ten claims of error in their appeal to this court.

I. VENUE

First, appellants claim that the trial court abused its discretion in denying their motion for a change of venue to Steubenville, Ohio. The case was in fact tried in Columbus, some 50 miles west of Steubenville. While Steubenville is the seat of court within the Eastern Division of the Southern District of Ohio, and the crime charged was alleged to have occurred there, both Steubenville and Columbus are located within the Southern District. We hold that the trial judge did not abuse his discretion in ordering trial at Columbus, particularly when the objection was made for the first time on the day assigned for trial, and immediately preceding the impanelling of the jury. Rule 22 of the Federal Rules of Criminal Procedure provides:

'A motion to transfer under these rules may be made at or before arraignment, or at such other time as the court or these rules prescribe.'

The motion was, therefore, not timely, and the judge did not abuse his discretion in denying it. Cagnina v. United States, 223 F.2d 149 (5th Cir. 1955); United States v. Tremont, 351 F.2d 144 (6th Cir. 1965); United States v. McMaster, 343 F.2d 176 (6th Cir. 1965).

II. PROSECUTORIAL REMARKS

Appellants claim that certain remarks made by the government attorney during his summation to the jury were inflammatory and incurably prejudicial to their rights. In closing argument, counsel for the government reviewed for the jury the testimony of the witnesses to the gambling operation at the Midway Club. He further stated that 'I suppose we could have brought on twenty or thirty more.' If the statement was improper at all, it was certainly harmless in the light of proofs which tended to show exactly that.

Objection was also made to the reference by government counsel in his final argument, to 'A big gambling operation going on like this,' and the statement that, 'The pots must be pretty big to attract out-of-state gamblers', as well as similar comments. We conclude that while the government may have struck hard blows with such comments, they were not foul, Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and thus, did not violate defendants-appellants' right to a fair trial.

III. SUFFICIENCY OF EVIDENCE UNDER SECTION 1955

Appellants claim that their motion for judgment of acquittal should have been granted because there was insufficient evidence to show the involvement of 'five or more persons' within the meaning of 18 U.S.C. 1955(b)(1)(ii).

The roles played by Mattucci, DeBellis, Betras and Barilla were clearly established at trial and were sufficient to bring them within the prohibition of the Act if the five person requirement were met. Mattucci was the owner of the business and the others worked as dealers. It is claimed, however, that the proved activities of appellant James Simone were insufficient as a matter of law to bring him within the statute as one of 'five or more persons who conduct, finance, supervise, direct or own such (gambling) business.'

The entrance to Midway Club was set up with a buzzer system and had a peephole in the door. Simone was a doorkeeper and guard, and was employed primarily to keep an eye on customers as they arrived and departed. He was paid $100 a week. Nick Contes, a Steubenville tavernowner who frequented the Club, testified that Simone would occasionally answer the door, 'or, if somebody wanted a coke or hamburger, he would facilitate them'. Contes further testified that a person who came to gamble or get a bite to eat could enter 'as long as he was recognized, yes'.

While at one point, Mattucci himself testified that he had given Simone orders to 'let everybody in', he also stated that part of Simone's duties were 'to keep out drunks, and to guard against a hold-up, because it would be three o'clock in the morning and we are off a beaten path. We are near a river bank'. When cross-examined by Simone's counsel, Mattucci testified:

'QUESTION: Did he ever have authority of letting people into that club without checking with you first? A. That's right. It was never up to him. Q. Never up to him. A. Never. He could never let nebody in.'

While the testimony was thus conflicting as to what Simone's exact role was, we are of the opinion that a jury question was presented as to whether his activities were such as to bring him within the statute as one who 'conducts' an illegal gambling business. In United States v. Palmer,465 F.2d 697, 699 (6th Cir. 1972), we recognized that Congress intended the word 'conduct' to refer to both 'high level bosses and street level employees'. The Third Circuit has also broadly defined the term:

'The meaning seems perfectly clear to us. A street runner for a numbers business 'conducts' that business in the sense that he carries it on. Indeed without him it could not be carried on. Before the gambling enterprise may be deemed of sufficient magnitude to warrant federal proscription it must be carried on by at least five people, including its street level employees, its managers and its owners. Its customers are excluded from the numerical count. All other participants are included. The statute is not vague.' United States v. Riehl, 460 F.2d 454, 459 (3rd Cir. 1972)

Similarly, the Fifth Circuit, in a comprehensive opinion, reviewed the entire legislative history of the Act and concluded that the issue of whether the activities of a certain defendant brought him within the meaning of the Act, was properly submitted to the jury.

'Defendant Littlefield was a guard or watchman for the business. His duty was to admit people to the club. However, he had no discretion as to who was to be admitted. He was on the premises at all times, lived there and used the premises for his domicile.

. . . .Lit

The thrust of appellants' argument is that Congress did not intend to include employees such as Littlefield . . . as 'persons who conduct, finance, manage, supervise, direct, or own all or part' of the gambling business and that mere employees cannot satisfy the necessary requirements. Appellants' contention are not well taken.' United States v. Harris, 460 F.2d 1041, 1049 (5th Cir. 1972)

We conclude, therefore, that there was sufficient evidence from which the jury could find that Simone was one who conducted the gambling business, and hence that the five person requirement of 18 U.S.C. 1955(b)(1)(ii) was met. The trial judge properly denied defendant appellants' motion for the judgment of acquittal.

IV. JURY INSTRUCTIONS

Three of defendants-appellants' claims of error challenge the propriety of the judge's charge to the jury. On review the issue is whether the instructions, taken as a whole, fairly and adequately submit the issues in the case to the jury. Gradsky v. Sperry Rand Corp., 489 F.2d 502 (6th Cir. 1972). Our examination of the entire charge as given satisfies us that it was complete, fair and free from error.

Appellants assert that the trial court misled the jury by defining the word 'conduct' as a noun, whereas Section 1955 utilizes the term as a verb. The trial judge instructed the jury:

'The word 'conduct' as it is used in connection with the gambling business means and includes any action, function or duty performed or carried out by any person or persons which is necessary to the ordinary operation of such business.'

While the form of the word used in the instruction was a noun, the correct meaning of the term as used in the statute was made clear in that instruction and throughout the charge. The jury could not have been misled or confused by this semantic distinction.

Appellants also claim...

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