U.S. v. Sellaro

• Decision Date: 09 June 1975
• Docket Number: No. 71-1719,71-1719
• Citation: 514 F.2d 114
• Parties: UNITED STATES of America, Appellee v. Pasquale SELLARO, Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

Page 114

514 F.2d 114

UNITED STATES of America, Appellee v. Pasquale SELLARO, Appellant

No. 71-1719

United States Court of Appeals, Eighth Circuit

Submitted April 9, 1973

Decided June 12, 1973

Certiorari Denied June 9, 1975

Robert G. Duncan, Kansas City, Mo., for appellant.

Anthony P. Nugent, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, BRIGHT and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

Pasquale Sellaro was convicted in a jury trial in the United States District Court for the Western District of Missouri for violation of 18 U.S.C. Sec. 1952. ¹ The indictment alleged that Sellaro had used an interstate facility, the telephone, in the violation of the laws of Missouri against bookmaking and gambling, specifically Mo.Rev.Stat. Secs. 563.350 and 563.360, V.A.M.S. ² The other count of which he was convicted charged that he conspired with others to violate Sec. 1952, which in turn would be a violation of 18 U.S.C. Sec. 371.

During the period, December 5, 1969, to December 19, 1969, the Government had a wiretap on the telephones of Robert Thompson and Paul Sere, co-conspirator and co-indictees of Sellaro. During that time the FBI intercepted over 800 calls dealing with betting and overheard wagers which totaled in excess of $69,000. Thompson and Sere were charged with substantially the same offenses as Sellaro, pleaded guilty and were serving their sentences at the time of Sellaro's trial. They testified as prosecution witnesses under a grant of immunity. They testified that they were partners in a bookmaking operation in Kansas City, Missouri, during the period alleged in the indictment. About their relationship with Sellaro they testified that they would get the "line" ³ on various sporting events, principally football and basketball games, from him and that they would make bets with him. These bets were "lay-off" bets ⁴ for them but they did not know if Sellaro knew that they were lay-off bets. During the period from the start of the wiretap to December 13, 1969, when Sellaro became unavailable for these activities due to his arrest on that date to begin service of a state sentence, the FBI intercepted about 40 calls between either Thompson or Sere and Sellaro of which 17 involved wagers in the total amount of $2,915.00. The rest of the calls concerned the line. Neither Thompson nor Sere made any payment to Sellaro for the line but they did indicate that the wagers were made as compensation for this information. They would have to pay a "lug" ⁵ to place these bets with Sellaro. Sere and Thompson testified that they knew the defendant as Otto Sellaro.

The Government also called Charles Fisk as a witness. He testified that he lived in Topeka, Kansas, and that he made calls to a number in Kansas City, Missouri, and spoke to a person named pat. He made wagers with Pat and received a line from him. A telephone company employee testified that their record showed that the telephone number which Fisk called was assigned to Pat Sellaro and was located at 4946 North Flora, Kansas City, Missouri. This was the same number used by Thompson and Sere to talk to the defendant.

On this appeal Sellaro has raised eight points. We examine each seriatim and affirm.

The Reasonable Doubt Instruction: The District Court in charging the jury and instructing on reasonable doubt included the following language: "Proof beyond a reasonable doubt is such as you would be willing to rely upon in the most important of your own affairs." Sellaro, relying on United States v. Dunmore, 446 F.2d 1214 (8th Cir.1971), cert. denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972), contends that the court erred in phrasing the instruction in these terms rather than in terms of a kind of doubt which would make a person hesitate to act. it is true that this Court in Dunmore stated that the latter type of instruction was preferable but the case was not decided on that ground. 446 F.2d at 1222. Rather it held that failure to give the instruction was not plain error under Rule 30 Fed.R.Crim.P., which requires that,

"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

Defendant's objection to the reasonable doubt instruction stated, "[W]e feel that the definition of reasonable doubt is not sufficient and does not properly direct the jury as to what a reasonable doubt is." This general objection is no more effective in preserving the instruction for appellate review than Dunmore where no objection at all was made; it runs afoul of the requirement of the rule which requires a distinct statement of the matter objected to as well as the requirement of a statement of the grounds upon which the objection rests. This objection included neither. While the objection went to the entire reasonable doubt instruction t is clear that only the previously quoted material from the charge was even arguably objectionable. Moreover, no grounds for the objection were stated nor was the District Court any other reasonable doubt instruction which would have in counsel's opinion, properly instructed the jury on reasonable doubt.

In Northcraft v. United States, 271 F.2d 184, 189-190 (8th Cir.1959), this Court held that an objection which merely stated that the Court's instruction "does not correctly state the law" was not sufficient to preserve the alleged error for review. The instant case is not distinguishable from Northcraft.

We therefore, need not reach the issue of the propriety of the District Court's reasonable doubt instruction. The instruction is not reviewable under Rule 30.

The Qualification of the Expert Witness: The Government used an FBI agent as an expert witness for the purpose of informing the jury of the method of operation of bookmakers and to define various terms used by bookmakers in carrying out their operation. The Special Agent had attended three special schools conducted by the FBI for the purpose of studying gambling and related matters and had worked in the area for the FBI for eight years. The defense tried to show that he was not qualified to testify on these matters because none of the schools was taught by bookies and the agent had never placed a bet with a bookie.

Qualification of expert witnesses is left to the discretion of the trial court. Matheson v. United Sates, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631 (1913); Hamilton v. Empre Gas & Fuel Co., 297 F. 422, 430 (8th Cir.), cert. denied, 266 U.S. 607, 45 S.Ct. 92, 69 L.Ed. 465 (1924). See also, II Wigmore on Evidence Sec. 561 (3d Ed.1940) (and cases cited therein). We find no abuse of discretion in the admission of the testimony of this expert.

The Violation of State Law: The statute under which the substantive count was tried, Sec. 1952, necessarily requires proof that the defendant was involved in an unlawful activity under state law. In this case the unlawful activity was bookmaking. We have previously set out the pertinent parts of the Missouri statutes under which this case was submitted to the jury. ⁶ The defendant alleges that the evidence was not sufficient to support the necessary finding by the jury that he was operating in violation of state law. Under Mo.Rev.Stat. Sec. 563.350, V.A.M.S. the jury would have been required to find that the defendant had recorded bets or wagers. The particular Missouri statute and the cases decided under it by the state courts make it clear that it is the physical act of recording which the statute prohibits. ⁷ The first part of the statute requires that any person who occupies a room or building with any book, instrument or device for recording or registering wagers shall be guilty of a felony. In State v. Oldham, 200 Mo. 538, 98 S.W. 497 (1906), the defendants were found to be not in violation of this section where they operated a booth at a racetrack in Missouri and transmitted bets from the booth by telephone for recording outside the state. The next year the statute was amended by inserting, "or to register a bet on a horse race, either on a blackboard or any other substance, or to telephone a bet on a horse race to any other state to be registered there...." This phrase is very specific and was obviously designed to deal with the particular problem raised by Oldham. It does indicate that this statute is to be read narrowly.

The Government contends that the proof of the volume of business which was done between Thompson and Sere and Sellaro gives rise to a permissible inference that he must have recorded the bets in some manner. We do not agree. Seventeen wagers in eight days is not too great a number to remember, and the Government had no proof of any other wagers for Sellaro during the period of time. Any finding by the jury that he had recorded the wagers would be based only on guesses and speculation.

The second Missouri statute, Sec. 563.360, under which the case was submitted is of greater help to the Government. It provides that it is unlawful to occupy a room or building with a telephone for the purpose of communicating information to any place within or without the state for the purpose of there recording or registering bets and wagers. There are no Missouri cases which would tell us whether the statute applies only to the transmission of an actual bet over the telephone to be recorded elsewhere or whether the statute is broad enough to include the transmission of the line information for the operation by the recipient of the business which includes the recording and registering of bets.

The answer to this question would seem to lie in the differences in the wording between Sec. 563.350 and Sec. 563.360. A reading of the two statutes shows that they are remarkably similar and that many activities would be prohibited under both sections. However, Sec. 563.350 makes it an offense to:

"... telephone a bet...