U.S. v. Villano
Decision Date | 17 February 1976 |
Docket Number | Nos. 74--1463,74--1464,s. 74--1463 |
Citation | 529 F.2d 1046 |
Parties | UNITED STATES of America, Plaintiff-Appellee. v. Paul Clyde VILLANO and Pauline Smaldone, Defendants-Appellants. |
Court | U.S. Court of Appeals — Tenth Circuit |
W. Allen Spurgeon, Asst. U.S. Atty., Denver, Colo. (James L. Treece, U.S. Atty., and John W. Madden, III, Sp. Asst. U.S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.
Irl B. Baris of Newmark & Baris, St. Louis, Mo. (Joseph Saint-Veltri of Davies & Saint-Veltri, Denver, Colo., on the brief), for defendants-appellants.
Before SETH, HOLLOWAY and BARRETT, Circuit Judges.
Defendants Paul Clyde Villano and Pauline Smaldone were convicted on jury verdicts under a three-count indictment, each count covering one of three time periods, for using, causing to be used, or aiding and abetting the use of a communication facility in interstate commerce, namely the interstate telephone, in violation of 18 U.S.C.A. §§ 1952 and 2. On appeal defendants raise questions concerning the sufficiency of the evidence, jury instructions, telephone voice identification, division of the charges into multiple counts, double jeopardy, adequacy of the Alderman taint hearing, venue and jury selection, the constitutionality of § 1952 (the Travel Act), preindictment delay, and denial of severance. We conclude that the convictions should stand, and affirm.
The facts are dealt with in discussing the appellate contentions.
The three counts in the indictment were identical except for the time periods involved. 1 Count I encompassed the Since we are reviewing convictions on guilty verdicts we must view the proof in the light most favorable to the Government. United States v. Pauldino, 443 F.2d 1108, 1110 (10th Cir.), cert. denied, 404 U.S. 882,92 S.Ct. 212, 30 L.Ed.2d 163. So viewed there was proof tending to show that Villano and Smaldone were in the bookmaking business during the period from November 1, 1970, through February 28, 1971. Villano handled substantial betting on football and basketball games with Denver residents who testified that he personally handled collections and payoffs (R. VI 330, 332--34; 347--48, 350--54).
period of November and December, 1970; count II covered the month of January, 1971; and count III the month of February, 1971.
From November, 1970, through February, 1971, Frank Amato worked as a telephone operator for a Denver bookmaker taking bets and providing line information. Amato worked five or six days a week in this position, serviced 20 to 30 customers by code number, and handled between $5,000 and $7,000 per day. Upon receipt of the bets he relayed them to a woman whose voice he recognized as defendant Pauline Smaldone's. 2 Amato specifically recalled receiving calls from a bettor who identified himself by the code number X--15 (R. V 142--45; 147; 150--51). In January, 1971, Amato was arrested by State authorities for gambling violations. Henry Veto, a professional bondsman, testified that after Amato's arrest he provided Amato's bond at the request and expense of Villano (R. V 148; R. VI 302--03).
During the indictment period Richard Colgan was employed by Villano as a telephone operator. He was paid by Villano in cash on a weekly basis. Colgan testified that he serviced approximately 50 customers and received an average of $25,000 to $35,000 in bets per week. After receiving bets Colgan relayed them to a woman known to him as Pauline who received this information at telephone number 237--9254 in Denver (R. V 154--55; 160--61). The Government's proof showed this number to be listed to C. M. Smaldone for Claudia Smaldone, 2997 Pearson Way, Denver, Colorado (Pl.Ex. 4). The owner of this residence during the period encompassed by the indictment was defendant Pauline Smaldone (Pl.Ex. 5, 6, 7). If the sports schedules required by Colgan were ever late he would call Pauline's number and they would be sent to him. If a bettor desired to exceed the $2,000 limit on any single bet, he was required to call Pauline and then defendant Villano would call him to either grant or deny him permission to accept the bet (R. V 161--62).
The evidence of interstate telephone calls came from Fud Ferris, Jr., a resident of Valentine, Nebraska, who owned restaurants in Valentine and North Platte. He testified that during the fall of 1970 and the spring of 1971, he placed bets with a Denver bookmaker by use of telephone facilities located in the two restaurants, his residence, and the residence of his sister-in-law in North Platte. Ferris said he had three phone numbers that he would call in Denver and that he used code number X--15 when placing all of his bets. Ferris stated, however, that he had never heard of Amato or Colgan. He testified that during the indictment period his highest betting might have been $5,000 in a week, but that there were some weeks he did not place any bets.
Ferris stated he traveled to Denver where he was paid his winnings by a man known to him as Paulie (R. V 104, 108). 3 However, in court Ferris was unable Several of the telephone calls made by Ferris were corroborated by telephone company records. The records, together with the testimony of Ferris, Amato and Colgan, supported an inference that Ferris made numerous interstate telephone calls to numbers operated by Amato and Colgan during the indictment period. 4
to identify defendant Paul Villano as the person who paid him (R. V, 104). The time and place of payment would be previously arranged during his interstate telephone calls to Denver when he obtained line information and placed bets (R. V, 100--105). At the conclusion of Ferris's betting through the three Denver telephone numbers he owed $4,000 which he did not pay (R. V, 107--108).
From the proof we are satisfied the jury could find beyond a reasonable doubt that Villano and Smaldone caused the use, or aided and abetted the use, of interstate phone facilities with the intent to promote and carry on and facilitate the promotion and carrying on of an unlawful activity--a business enterprise involving gambling in Colorado--and that they thereafter performed or attempted to perform such acts of promoting and carrying on or of facilitating the promotion and carrying on of unlawful gambling. Thus it appears that the proof supports the convictions for violation of § 1952.
Defendants' argument focuses on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493. They say that the evidence was only of a local gambling business, patronized sporadically by one non-resident and that Rewis holds that this does not constitute a federal offense (Joint Brief for Appellants, at 12). Reliance is placed on Rewis, on United States v. Altobella, 442 F.2d 310 In Rewis there was a lottery or numbers operation in northern Florida near the Georgia line. Two defendants were Florida residents and there was no proof that they crossed state lines in connection with operation of their lottery. Two other defendants were Georgia residents who traveled to the Florida location to place bets. All defendants were found guilty; the Georgia defendants' convictions were reversed by the Fifth Circuit and those of the Florida defendants were reversed by the Supreme Court. Reviewing the language of the Travel Act and its legislative history, the Supreme Court pointed out the statute was aimed primarily at organized crime and specifically at persons residing in one State while operating illegal activities in another. It was concluded that Congress did not intend the Act to apply to criminal activity solely because that activity is at times patronized by persons from another State. 401 U.S. at 811--12, 91 S.Ct. 1056. We feel that the Rewis opinion does not call for reversal here.
(7th Cir.), on United States v. McCormick, 442 F.2d 316 (7th Cir.), and similar cases.
The Travel Act provisions in question read in pertinent part:
§ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
From the terms of the statute itself we feel that the evidence supports the convictions. There was proof to sustain an inference that the defendants caused or aided and abetted the use by Colgan and Amato of interstate telephone facilities in furnishing line information, accepting bets and arranging payoffs with Ferris. True, the calls were placed by Ferris, but the betting transactions depended on more than silence at the other end of the line. 5 We feel the proven use of the interstate facility was substantial enough to support the convictions, although it was a small part of the overall gambling enterprise (see note 4, supra). There were several transactions conducted by use of an interstate facility, bringing the case within the prohibitions of § 1952(a). 6
We cannot agree that the Court's interpretation of the statute in Rewis calls for reversal of these convictions. The opinion does stress that the Act was aimed 'at persons who reside in one State while operating or managing illegal activities located in another.' 401 U.S. at 811, 91 S.Ct. at 1059. Nevertheless the reach of the statute was not limited to such...
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