U.S. v. Votteller, s. 76-1089

• Decision Date: 10 November 1976
• Docket Number: Nos. 76-1089,s. 76-1089
• Citation: 544 F.2d 1355
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth VOTTELLER et al., Defendants-Appellants. 76-1093.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1355

544 F.2d 1355

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth VOTTELLER et al., Defendants-Appellants.

Nos. 76-1089 76-1093.

United States Court of Appeals, Sixth Circuit.

Argued June 24, 1976.

Decided Nov. 10, 1976.

Robert E. Fleming, Louisville, Ky., for Kenneth R. Votteller.

Eldon L. Webb, U.S. Atty., Richard E. Duerr, Jr., Lexington, Ky., for appellee.

Stuart L. Lyon, Lewis G. Benham, Louisville, Ky., for Foch Karem, Jr., and James Burtel.

John J. Kelley, Jr., H. Fred Hoefle, Cincinnati, Ohio, for Bernard Esselman.

Richard M. Sullivan, Louisville, Ky. (Court-appointed CJA), for Paul Robert Rhodes.

Richard Slukich, Robert W. Carran, Covington, Ky., for George Gradel.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This is a consolidated appeal of six appellants, Kenneth Votteller, Foch Karem, Jr., James L. Burtel, Bernard Esselman, Paul Robert Rhodes and George Gradel from their convictions in the United States District Court for the Eastern District of Kentucky, on counts one and two of a seven-count indictment charging conspiracy to violate and violation of Federal gambling laws. The appellants, herein, were jointly indicted with twelve others in various counts of the indictment returned on March 31, 1975.

Eight of the original defendants pleaded guilty before trial. The remaining ten went to trial which began on July 15, 1975. Seven of the defendants, including the appellants on this appeal, were convicted on counts one and two of the indictment.

Briefly stated, counts one and two are as follows: Count One, charges a conspiracy in violation of Section 371, Title 18, U.S.C. to commit the following offenses; (1) being in the business of betting and wagering to knowingly and willfully use wire communication facilities for the transmission in interstate commerce of bets and wagers on sporting and racing events which entitles the recipient to receive money and credit as a result of such bets and wagers in violation of Section 1084, Title 18, U.S.C., (2) to knowingly and willfully conduct a continuous illegal bookmaking business for a period of more than thirty days with a gross revenue of more than Two Thousand Dollars ($2,000) on one or more single days and having at least five persons supervising and managing it in violation of Section 1955, Title 18, U.S.C., (3) to use telephone communications facilities in interstate commerce to establish, carry on and facilitate the promotion and carrying on of an unlawful business enterprise involving gambling, betting and wagering on sporting events and horse racing and, thereafter, to carry on and facilitate the carrying on of such unlawful activity in violation of Section 1952(a)(3), Title 18, U.S.C., (4) to knowingly carry, send and cause to be sent in interstate commerce, slips, papers, writings and other devises for use in wagering with respect to sporting events such as football games, in violation of Section 1953, Title 18, U.S.C. Overt acts are alleged in support of the foregoing specific charges.

Count Two, did knowingly and willfully continuously operate a gambling bookmaking business, with a gross revenue of at least Two Thousand Dollars ($2,000) on one or more single days, for more than thirty days, involving at least five persons in its conduct, management and supervision in violation of Section 1955, Title 18, U.S.C.

Appellants Votteller, Esselman and Rhodes allege that the trial judge erred in not suppressing evidence obtained by electronic surveillance for the reason that it did not follow the statutory procedure.

Section 2516, Title 18, U.S.C. provides:

"(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, * * * an order authorizing or approving the interception of wire * * * communications by the Federal Bureau of Investigation * * * having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of * * * (c) any offense which is punishable under the following sections of this title: * * * Section 1084 (transmission of wagering information), * * * "

On January 28, 1974, William R. Saxbe, Attorney General, issued a designation as follows:

"I hereby specially designate the Assistant Attorney General in charge of the Criminal Division to exercise the power conferred by Section 2516 of Title 18, United States Code, to authorize applications to a Federal Judge of competent jurisdiction for orders authorizing the interception of wire or oral communication * * *."

In conformity with this designation, Henry E. Peterson, on October 29, 1974, authorized the wire interception complained of herein. It is objected that the Attorney General's designation is not directed to a specially named assistant or to a specific request for an order of interception.

We conclude that the procedure followed by the Attorney General in this case meets the requirements of the statute.

In United States v. Pellicci, 504 F.2d 1106, (1st Cir. 1974), cert. den. 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975), the Assistant Attorney General in charge of the Criminal Division was designated by job title rather than by name. The Court said, p. 1107,

"But the designation of a single person accomplished by job title rather than by name does not run afoul of the legislative intent recognized in United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820 40 L.Ed.2d 341, (1974), that the authority to approve applications be both narrowly confined and limited to those responsive to the political process. And the fact that Henry E. Peterson, who authorized the application, was by precise title the 'Assistant Attorney General of the Criminal Division' in no way calls into question his identity as the individual whom Bork (Act. Atty. Gen'l) intended to designate."

We do not consider that the lapse of time from the designation by the Attorney General, January 28, 1974, to the exercise of the authority by the Assistant Attorney General, October 29, 1974, is of any significance.

In Giordano, supra, the application was authorized by the Attorney General's Executive Assistant. The Court held that Congress did not intend the power to authorize wire tap applications be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him. The procedure followed herein meets that requirement.

Appellants Votteller, Burtel and Karem claim that there is not sufficient evidence to support their convictions on the charge of conspiracy in Count One. Burtel and Karem present this issue jointly in their brief and Votteller presents it separately in his brief. In neither the joint nor the separately stated claim is there a denial of the existence of the conspiracy to which Joseph Anthony Mark Albers was a party and which had its communication center in Erlanger, Kentucky.

Burtel and Karem argue that they were two men of a three man (Votteller) separate gambling operation in Louisville, Kentucky, connected to the Albers center operation by the exchange of results and pay-off bets. Votteller claims that there is no evidence connecting him to the Burtel, Karem operation.

There is evidence that Votteller, Burtel and Karem maintained a three man gambling operation in Louisville, Kentucky. There is also evidence (through intercepted telephone conversations on the wire tap of Albers telephone) that this three man gambling operation maintained contacts with Albers gambling center at Erlanger, Kentucky for the exchange of gambling information involving bets, horse racing information, etc.

In considering the sufficiency of evidence to support a conviction, the evidence must be considered in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tarter, 522 F.2d 520 (6th Cir. 1975). Once a conspiracy is established, only slight evidence is necessary to connect a defendant with it. United States v. Chambers, 382 F.2d 910, 913 (6th Cir. 1967); United States v. Hoffa, 349 F.2d 20, 46 (6th Cir. 1965), aff'd. 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Knowledge of a criminal plan is a factual issue which may be proved by circumstantial evidence. It is not necessary that there be evidence of a formal agreement in order to have an unlawful conspiracy. United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); United States v. Luxenberg, 374 F.2d 241, 249 (6th Cir. 1967).

We conclude that there was sufficient evidence to be submitted to the jury upon the issues involved.

The appellants, Votteller, Burtel and Karem, were convicted of the substantive offense of a violation of Section 1955, Title 18, U.S.C. as charged in Count Two of the indictment. They claim that there is insufficient evidence to support these convictions.

Burtel and Karem argue that it is contrary to Congressional intent to include a small three-man operation with another operation even though they exchanged lay-off bets and gambling information with the other operation. There is no merit to this claim. United States v. Ceraso, 467 F.2d 653, 656 (3rd Cir. 1972); United States v. Leon, et al., 534 F.2d 667 (6th Cir. 1976).

Votteller argues that the monitored calls do not make him a part of the three-man operation, including Burtel and Karem, engaged in the illegal gambling activity with the Albers operation at Erlanger, Kentucky. In Ceraso, supra, p. 656, "conduct" was held "to mean any participation in the operation of a gambling business." See also United States v. Leon, et al., supra. We hold that the jury could find from the evidence that Votteller was a participant in the gambling operation with Burtel and Karem at Louisville, Kentucky and, therefore, guilty of the substantive...