U.S. v. Variano, s. 431
| Decision Date | 14 March 1977 |
| Docket Number | 472 and 473,Nos. 431,D,418,432,364,s. 431 |
| Parties | UNITED STATES of America, Appellee, v. Peter VARIANO et al., Defendants-Appellants. ockets 76-1335, 76-1358, 76-1359, 76-1360, 76-1354 and 76-1442. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael D. Abzug, Special Atty., Dept. of Justice, New York City (Robert B. Fiske, Jr., U. S. Atty. for the S. D. N. Y., Audrey Strauss, Asst. U. S. Atty., New York City, of counsel), for appellee.
Irving Anolik, New York City, for defendant-appellant Variano.
Jerald Rosenthal, New York City (Irving Katcher, New York City, of counsel), for defendant-appellant Bucci.
B. Alan Seidler, New York City, for defendant-appellant Russillo.
Edward S. Panzer, New York City (Julia P. Heit, New York City, of counsel), for defendant-appellant DeMichaels.
Armende Lesser, New York City, for defendant-appellant Monaco.
Harold W. Dublirer, New York City (Paul A. Victor, New York City, of counsel), for defendant-appellant Evangelista.
Before MOORE, ANDERSON and FEINBERG, Circuit Judges.
Peter Variano, Henry Bucci, Anthony Russillo, Michael DeMichaels, John Monaco and Michael Evangelista appeal from judgments convicting them of conducting an illegal gambling business in violation of 18 U.S.C. § 1955.
Appellants and seven other defendants were initially charged in a two-count indictment, dated April 14, 1976, with conducting an illegal gambling business in violation of 18 U.S.C. § 1955 (Count II) ("the substantive count") and with conspiring to conduct an illegal gambling business in violation of 18 U.S.C. § 371 (Count I) ("the conspiracy count"). On April 26, 1976, an evidentiary hearing was held before Judge Carter of the Southern District of New York, to resolve various motions to suppress made by several of the defendants. Judge Carter denied all of the motions. On April 27 appellant Evangelista and three of the other defendants pleaded guilty to the substantive count of the indictment. Evangelista reserved his right to appeal the denial of his motion to suppress.
The trial before Judge Carter and a jury commenced on that same day. At the close of the Government's case, Judge Carter dismissed the conspiracy count on the ground that there was a variance between the None of the defendants offered any evidence. The substantive count went to the jury. On May 6 the jury returned guilty verdicts as to appellants Variano, Bucci, Russillo, DeMichaels, and Monaco, and one of the other defendants. Judge Carter entered judgments of conviction as to Evangelista on June 8, and as to the other five appellants on July 8.
Government's theory and its proof: the Government's evidence made out a case of multiple conspiracies, rather than the single conspiracy alleged in the indictment. The defendants had also moved to dismiss the substantive count, and they now asserted that this dismissal was required by Judge Carter's dismissal of the conspiracy count. Judge Carter denied the motion.
Each of the appellants raises several issues on appeal the "spillover" of evidence from the dismissed conspiracy count to the remaining substantive count, a variance in the proof as to the substantive count, insufficiency of the evidence as to certain of the appellants, prejudice resulting from a Government witness' invocation of the Fifth Amendment and his citation for contempt in front of the jury, an illegal search and seizure, improprieties in wiretap procedure, and prejudicial remarks by a Government witness and by the prosecutor.
We have considered each of the issues raised very carefully and discuss several of them below. We find all of the issues to be without merit and we affirm the convictions.
The Government's evidence established the existence of numbers, sports and horse gambling operations in the Bronx and Westchester beginning in 1968 and continuing until 1975. The cast of characters varied, but the pyramidal set-up remained essentially the same: Customers placed their bets with "runners" in the local candy store, soda shop, or bar. "Pick up" men collected the wagers for the runners and brought them into the "bank" the nerve center of the operation. The wagers were in envelopes bearing the runner's code on the outside. Each runner was referred to as an "account". At the bank, the wagers were tallied and when the results of the numbers, sports or horse events in question came in, the "hits" were also tallied. A "tape" was then made recording each account's total tally of wagers and hits. The bank determined how much money each account owed its customers, and placed this amount in an envelope. The envelopes were delivered to the individual runners who then paid off their winning customers, after deducting their own commissions.
Michael Yannicelli 1 was the "bank" of the operation here in question from 1968 until 1972. Michael Calise 2 testified that he worked as a "runner" and as a "pick-up man" for the operation during this period. He stated that appellant DeMichaels was one of Yannicelli's accounts. DeMichaels was what was known as a "half-sheet dealer." Rather than taking bets from customers himself, he had several runners working for him. In each week that he came out ahead i. e., the wagers placed with his runners were greater than his customers' hits he split his profits with Yannicelli. Conversely, when hits exceeded wagers, Yannicelli paid the customers and recovered the amount paid from DeMichaels the next time he came out ahead. Calise stated that Francis J. Millow 3 was one of DeMichaels' runners.
The evidence showed that DeMichaels and Millow continued collecting wagers after There was evidence that Millow, and appellants Bucci, Russillo and DeMichaels all had accounts with Variano. The "pick-up" network appears to have been slightly more complicated than the one during the earlier "Yannicelli" period. Bucci, Russillo and DeMichaels apparently delivered some of their wagers to Millow, who in turn phoned them to appellant Evangelista. 4 Evangelista placed the wagers on coded slips of paper and gave them to several people, including appellant Monaco. The Government's evidence establishing this network included gambling records and paraphernalia seized from various of the appellants, physical surveillance of their comings and goings, and electronic surveillance of their telephone conversations.
1972, but that in this later period, their accounts were with appellant Variano, rather than with Yannicelli. Variano's operation was broader than Yannicelli's it encompassed gambling on football games, as well as on numbers and horses. Variano's one-time girlfriend, Angelina David, testified that, at Variano's request, she did the bookkeeping for the football end of the operation. David stated that she accompanied Variano to various motels where he met his pick-up men and collected their wagers and money. Each Saturday Variano gave David bags containing the money and wagers. David tallied the wagers and delivered her computations to Variano. Variano received the results of the football games on Sunday night and he and appellant Bucci then determined which bettors, if any, had made "hits". They made a master tape of each account's wagers and hits and delivered envelopes to each account containing the money it owed its bettors.
At the close of the Government's case, Judge Carter determined that at least two, and possibly three, distinct time frames had been set forth. He concluded that the Government had made out a case of multiple conspiracies, rather than the single conspiracy alleged in the indictment. On the ground of this variance between the Government's theory and its proof, Judge Carter dismissed the conspiracy count.
After Judge Carter dismissed the conspiracy count, appellants moved that he also dismiss the substantive count on two grounds: (1) the Government was collaterally estopped from proving the substantive count once the similar conspiracy count had been dismissed; and (2) there was a prejudicial "spillover" of evidence admitted solely because of the conspiracy count. Judge Carter refused to dismiss the substantive count. With this refusal we agree.
Little need be said regarding the first prong of appellants' argument collateral estoppel. Variano and DeMichaels contend that since the substantive statute, 18 U.S.C. § 1955, 5 requires the participation of "five or more persons", it requires conspiratorial conduct, and thus once Judge Carter had determined that there was no single conspiracy, the Government was collaterally estopped from proving a violation of the substantive statute.
The doctrine of collateral estoppel does not apply to the facts of this case. Judge Carter did not find that there was no conspiracy; he found that there was no single The second prong of appellants' argument for dismissal of the substantive count is that the dismissal of the conspiracy count removed the only reason for the prejudicial joinder of the defendants. Moreover, evidence which had been admitted solely on the ground of the conspiracy count had a " spillover effect" on the remaining substantive count. The law in this Circuit is clear. Appellants can only succeed in this argument if they show bad faith on the part of the Government in bringing the conspiracy charge, or if they show prejudice. United States v. Aiken, 373 F.2d 294 (2d Cir. 1967). See also, United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied,375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); United States v. Branker,395 F.2d 881 (2d Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 573 (1969); United States v. Miley, 513 F.2d 1191 (2d Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975); and United States v. Ong, 541 F.2d 331 (2d Cir. 1976).
conspiracy. He found one conspiracy in existence during the period from 1968 to 1972, and at least one other,...To continue reading
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