U.S. v. Pinto, 1104

Decision Date09 October 1974
Docket NumberD,No. 1104,1104
Citation503 F.2d 718
PartiesUNITED STATES of America, Appellee, v. Joseph F. PINTO, Defendant-Appellant. ocket 74-1202.
CourtU.S. Court of Appeals — Second Circuit

Joesph A. Faraldo, Kew Gardens, N.Y., for defendant-appellant.

Marshall Tamor Golding, Atty., Dept. of Justice (Edward J. Boyd, V., U.S. Atty., E.D.N.Y., Harold Meyerson, Sp. Atty., Dept. of Justice, on the brief), for appellee.

Before KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN, Circuit judges.

MANSFIELD, Circuit Judge:

After a three-day jury trial before Judge Orrin J. Judd of the Eastern District, Joseph F. Pinto was on January 10, 1974, found guilty of committing perjury in violation of 18 U.S.C. 1623 when he testified before a federal grand jury investigating bribery affecting harness racing as a possible violation of the sports bribery statute, 18 U.S.C. 224, that he was the owner of a winning 'superfecta' ticket which he had cashed for $1,272.00 on March 10, 1973 at a branch office of the Offtrack Betting Corporation (herein 'OTB'). Appellant was sentenced to one year in prison, with all but 60 days of the sentence being suspended, and to an additional 18 months on probation. We affirm.

'Superfecta' wagering, as it has been instituted at several harness racing tracks across the country, requires the bettor, in order to win on his wager, to select not only the horse that will win a race but also the horse that will come in second, third and forth, respectively. While the odds are obviously long, the potential size of the payoff compared to the necessary investment has attracted millions of bettors, many of whom have chosen not to rely on a single prediction alone but to bet on various combinations of horses in every conceivable order of finish which, in the parlance of the track, is generally known as 'wheeling' or 'boxing' horse combinations. At all times relevant here, OTB offered a 'box' superfecta ticket for $72.00. The purchaser of this ticket, which actually encompassed 24 three dollar bets, gained a share of the payoff pool if the four horses he selected were the top four in the race, regardless of which of the four came in first, second, third or fourth.

During the course of its investigation of possible bribery affecting these superfecta races, a federal grand jury sitting in the Eastern District heard evidence that some of the heaviest bettors in the races had remained anonymous by having their winning tickets cashed by several other persons. While OTB kept no record identifying purchasers of superfecta tickets, a person cashing a winning ticket was generally required to give his name to an OTB clerk who completed a form-- OTB Form 1099-- which was later submitted to the Internal Revenue Service. 1

On March 10, 1973, appellant entered OTB Branch Office #106 in Queens, New York, and, after a #1099 Form had been completed, received $1,272.00 for a winning $72.00 box ticket on a superfecta race which had taken place two days earlier, on March 8, 1973. Subsequently, on or about August 20, 1973, appellant was called as a witness before the grand jury and he was asked whether he or someone else was the owner of the ticket he cashed. Appellant responded that he, himself, was the owner. He had testified that he had purchased the winning ticket for himself on the day of the race, March 8, 1973, when he had also bought four other losing $72.00 box tickets on the same race. He purchased one of these tickets, he said, because the numbers of the four horses in the combination happened to correspond with the numbers on a sticker on his car and he purchased another of the tickets because the numbers of the horses corresponded with his daughter's birthday. Later, the appellant was arrested for perjury in connection with this testimony but he repeated the same story to a federal agent. He told the agent that he had purchased his one winning and four losing tickets all at one time without interruption on March 8, 1973.

As proof at trial that appellant had lied when giving these answers, the government first introduced the #1099 from which had been completed when appellant cashed his ticket. The form showed that Joe Pinto, 20 Westwood Drive, Huntington, New York, had cashed a winning superfecta ticket which was numbered 567251206275 on March 10, 1973, at OTB Branch #106 in Queens, New York. Michael D. Shagan, an officer of the Security Branch of OTB, explained that every OTB ticket sold, regardless of the amount or type of bet, is numbered consecutively according to the date and window it is sold from. 2 Thus there was only one OTB ticket numbered 567251206275, and in fact, such a ticket had been recovered from an OTB storage box containing all tickets cashed by Branch #106. The ticket, a $72.00 box superfecta ticket, showed on its face that it had been purchased on March 8, 1973, at window 2 of OTB Branch #64 at 88-22 Broadway, Queens, New York, which was the same branch where appellant said he had purchased his ticket. However, whereas appellant had testified that he had purchased his winning ticket with a group of only five such box tickets (including four losers), a 'Branch Office Bet Report' covering Branch #64, window number 2, showed that ticket number 567251206275 had been purchased as part of a much larger group of thirtyfive $72.00 superfecta box tickets.

The 'Report', a computer printout listing in their proper order the consecutive numbers of all the tickets sold at the window on March 8 and indicating the type of bet-- i.e. win, place, daily double, perfecta, exacta, superfecta, etc.-- showed that the ticket number 567251206275 was the 19th of thirty-five consecutive $72.00 superfecta bets which were made in groups of seven on five different four horse combinations. The combinations were similar and showed a pattern in that all five combinations included the same two horses while all of them excluded two of the others. In the midst of this pattern ticket number 567251206275 was the fifth of seven consecutive bets on the winning combination. Thus the report indicated that number 567251206275, which according to the #1099 form was the ticket cashed by appellant, was purchased as part of a $2,520.00 wager, probably by a professional gambler rather then by a casual wagerer such as appellant claimed to be. Gladys Lee, who was the OTB seller at window number 2, branch #64, on March 8 testified that she had sold a group of thirty-five consecutive superfecta tickets to one person who made the bets all at one time and that the person making the bets was not appellant Pinto.

In response to a suggestion by defense counsel that a mistake may have been made either manually in copying the number of appellant's winning ticket onto the #1099 form completed at the time the ticket was cashed or by the OTB computers in issuing the ticket or in the 'Bet Report' showing that the ticket was the 19th of thirty-five consecutive $72.00 superfecta box bets, Shagan testified that, in view of the various checks within the system, the odds against such a mistake going undetected were in the range of a 'million to one (or) a trillion to one.' Shagan testified that a mistake in copying appellant's winning ticket number onto the #1099 form would have been detected since, according to standard operating procedures, OTB kept all the tickets it cashed in a central storage area, with the tickets cashed by each branch stored in a box labeled with that branch's numbers. Investigation revealed that central storage box #106 contained only one $72.00 ticket for the March 8 race which had been cashed on March 10 and the number of the ticket was 567251206275. Furthermore, an additional OTB computer report, which was entitled 'Branch Office Payouts Made', and which listed all tickets requiring a #1099 form that had been cashed by OTB btanches, indicated that the ticket number 567251206275 was the only winning superfecta ticket for the March 8 race cashed on March 10 at Branch #106. Finally, Shagan testified that all winning superfecta tickets for the March 8 race had been cashed and accounted for. Since it was necessary for the OTB employee, who actually cashed ticket number 567251206275, to write that number down on the #1099 form which was prepared at that time, if a mistake had been made OTB would be holding a cashed superfecta ticket without a corresponding #1099 form. William Weglein, a computer expert employed by the American Totalizer Co., the principal computer company serving OTB, corroborated Shagan's testimony by testifying that in his opinion there was 'no way possible for the computer to have erred in either issuing the ticket or producing (the 'Bet Report') that substantiates the sale was made,' and further that if a mistake had been made it would have been detected in the normal course of operations.

The only witness called by the defense was Esther Nossov, an OTB clerk who had been employed at Branch #106 on March 10, 1973 and whose name appeared on ticket 567251206275 as the clerk who cashed it. Her testimony, however, was not particularly helpful to appellant since it did not directly contradict the government's evidence. She testified that she had not prepared the #1099 form bearing the appellant's name and did not know who had prepared the form. Nor did she recall appellant as having come to her window in Branch #106 with a ticket to be cashed.

The jury on January 10, 1974, returned a verdict finding appellant guilty of perjury. On this appeal from the judgment of conviction entered on February 1, 1974, appellant argues that he was denied a fair trial and that in any event the district court lacked jurisdiction to try him for perjury in connection with his grand jury testimony since the testimony concerned a matter which the grand jury was without power under 18 U.S.C. 224 to investigate.

Discussion

Appellant argues that he...

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