United States v. Barrow, Crim. No. 20997.

• Decision Date: 29 April 1964
• Docket Number: Crim. No. 20997.
• Parties: UNITED STATES of America v. George BARROW, a/k/a "Skinny Barrett," et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

229 F. Supp. 722

UNITED STATES of America v. George BARROW, a/k/a "Skinny Barrett," et al.

Crim. No. 20997.

United States District Court E. D. Pennsylvania.

April 29, 1964.

COPYRIGHT MATERIAL OMITTED

Drew J. T. O'Keefe, U. S. Atty., Philadelphia, Pa., Thomas M. McBride, George Robert Blakey, Sp. Attys., Dept of Justice, Washington, D. C., for plaintiff.

Morton Witkin, Witkin & Egan, Philadelphia, Pa., for defendant George Barrow.

Samuel R. Liever, Liever, Hyman & Potter, Reading, Pa., for defendant Benny Bonanno.

Stanford Shmukler, Poplow & Shmukler, Philadelphia, Pa., for defendant Frank Loscalzo.

Angelo D. Malandra, Camden, N. J., for defendants Pasquale Pillo, Fred DiPatrizio, Rocco Grassi, Charles Hunt, John Marzilli, Joseph Mattia, Michael Recchia, Querino Dentino.

Louis Lipschitz, Philadelphia, Pa., for defendant Anthony LaMonica.

James F. Masterson, Philadelphia, Pa., for defendant Dominick DiCaprio.

JOSEPH S. LORD, III, District Judge.

There were originally in this case a total of fifteen defendants. All were indicted for conspiracy (Title 18 U.S.C.A. § 371) to violate 18 U.S.C.A. § 1952.¹ Nine of the defendants were indicted for the violation of § 1952; five were indicted for wilfully causing and aiding and abetting the unlawful interstate travel (18 U.S.C.A. § 2); one, Comito, was indicted only for conspiracy.

Comito was severed, and the case went to trial against the other fourteen defendants. The trial judge acquitted Gatto at the end of the government's case. The jury acquitted Grassi. DiCaprio died a few weeks after the verdict.² The eleven remaining defendants were convicted under the first count of conspiracy. Barrow, Loscalzo, Bonanno and Pillo were found guilty of the substantive offenses charged in Counts 3-11 and 15-26, inclusive (see footnote 1, supra). The trial judge dismissed Count 2 and the jury found all defendants not guilty on Counts 12, 13 and 14. Mattia and Hunt were found guilty only on count 1. The jury found the remaining defendants guilty of the substantive offenses charged against them. Motions for judgment of acquittal or for a new trial are now before us.

I. MOTIONS FOR JUDGMENT OF ACQUITTAL

These motions are based upon two main grounds: (1) That § 1952 is not intended to cover the type of activity charged against defendants, and if so, it is unconstitutional; (2) the evidence is insufficient to sustain the convictions. We have already determined the first ground against the contentions of defendants. United States v. Barrow, et al., 212 F.Supp. 837 (E.D.Pa., 1962). We pass, then, to the second ground, the sufficiency of the evidence.

The evidence indicated that Barrow's position was a supervisory one. Pillo, DiPatrizio and Mattia were "laddermen".³ Marzilli, Hunt and Recchia were "dealers". LaMonica and Dentino were "luggers".⁴ Loscalzo was a doorman. Bonanno was a part time doorman and carried money from the bank to the game.

In determining the sufficiency of the evidence to sustain conviction on the first count (conspiracy), we must examine the evidence in the light most favorable to the government, recognizing and respecting the right of the jury to draw inferences. United States v. Kensil, 195 F.Supp. 115 (E.D.Pa., 1961), affirmed 295 F.2d 489 (C.A. 3, 1961), cert. den. Haith v. United States, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962). Circumstantial evidence need not be inconsistent with every conclusion save that of guilt; it need only establish a case which is sufficient to convince the jury beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), rehearing den. 348 U.S. 932, 75 S.Ct. 334, 99 L.Ed. 731 (1955). United States v. Giuliano, 263 F.2d 582 (C.A. 3, 1959).

This case is like United States v. Zambito, 315 F.2d 266 (C.A. 4, 1963), cert. den. 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423 (1963). With the exception of Dentino and LaMonica ("luggers"), there is no denial that the evidence is sufficient that the defendants were engaged in a gambling enterprise in violation of Pennsylvania law.⁵ All the defendants, with the exception of Dentino and LaMonica, were identified by one or more witnesses as workers at the game within the indictment period. Defendants' argument, like that of the defendant in Zambito, is that the government failed to prove that the defendants were aware of the interstate aspects of the unlawful activity — that the defendants knew that as part of the conspiracy, one or more defendants would travel interstate to promote or facilitate the dice game. See United States v. Horton, 328 F.2d 132 (C.A. 3, 1964); United States v. Crimmins, 123 F.2d 271 (C.A. 2, 1941).

New Jersey Defendants

There is no doubt of the knowledge of those defendants who traveled regularly from New Jersey to Pennsylvania to participate in the game as workers that interstate travel was an element of the gambling enterprise. At the very least, each knew that his own travel to the game was necessary to enable him to participate. The evidence is sufficient for the jury to find that they traveled with the intent to promote or facilitate the game by working in it.

The knowledge of Barrow, Bonanno and Loscalzo (Pennsylvania defendants) of the interstate travel of employes in furtherance of and as part of the conspiracy has also been shown by sufficient evidence.

"* * * Proof of the requisite knowledge and intent on the part of the conspirators need not be made by direct evidence. Indeed, it is a rare case in which such evidence may be found. The conspiracy may be shown by circumstantial evidence or permissible inferences or deductions from the facts. * * *" United States v. Zuideveld, 316 F.2d 873, 878 (C.A. 7, 1963).

Barrow

There was testimony indicating that Barrow was the top man on the chain of command. When the doorman was in doubt as to whether a player should be admitted, Barrow gave the word. Barrow was the final arbitrator of disputes at the tables, and was one of the few that used the "office." He took excess money from the tables and when the game at one table ended he brought the money from the table into the office. Barrow hired the one "lugger" who testified. This fact, together with the evidence of his supervisory role, gives rise to a permissible inference that he was the one who hired the other "luggers", and other employes, including those from New Jersey. Working together with the New Jersey employes intermittently for two years, staying in the Berkshire Hotel in Reading during period parallel to the stay of the New Jersey defendants in the Daniel Boone Hotel, Barrow was familiar with these employes. It would be almost impossible to conclude that Barrow had no knowledge of the travel by employes of the game from New Jersey to Reading, Pennsylvania.

The court in Zambito pointed out that "Zambito knew that the writers under the Snyder-Fox regime had regularly done business in both states." 315 F.2d at 268. This element is not present in the present case. But in this case we have the elements of hiring "luggers" and other employes who came from New Jersey. Barrow, as one of the overmen, had extensive daily contact with the New Jersey employes. The court in Zambito relied upon daily contact and a pattern of interstate activity. These are present here. Finally, though not essential, was the announcement made by Loscalzo, the doorman, every time the witness Zangari was at the game, that cars were leaving for New Jersey. It is a fair inference that Barrow heard these announcements, audible throughout the room. If Barrow was the boss, he assigned the job of making these announcements to Loscalzo. One way or another, Barrow was aware these announcements were made. They performed the function of providing transportation to New Jersey players from the game. The soundest inference is that the paid "luggers" did the driving.

Loscalzo

The Daniel Boone Hotel records of Loscalzo's visits parallel those of other defendants, including those from New Jersey. Loscalzo was a doorman. He paid "luggers", and it is a permissible inference that he paid New Jersey "luggers" and must have known from whence they brought their passengers. It was Loscalzo who made the announcements, before and during the indictment period, that cars were leaving for New Jersey. He admitted all customers. In testimony admissible only against Loscalzo the witness Smith testified that the defendant told him that LaMonica was a "lugger". LaMonica was a resident of New Jersey. Loscalzo had a continual association with the game. Evidence of Loscalzo's part in the conspiracy and his knowledge of the interstate aspects is sufficient.

Bonanno

There was ample testimony placing Bonanno at the game regularly during the indictment period. Bonanno took soiled money to the bank, got change and larger denominations of bills for small bills and brought these to the premises of the dice game.

Bonanno relieved the doorman, walked around the dice game and was like an overseer. He was seen sitting with the doorman Loscalzo. He told one of the witnesses, a player, to move a car with New Jersey license plates from the vicinity of the dice game. In the spring of 1961, Bonanno helped the witness Johnson with his duties at the lunch counter. He was in a position to have heard the announcements made by Loscalzo that cars were leaving for New Jersey. From these facts the jury might well have concluded that Bonanno could not have avoided knowledge of the interstate elements of the conspiracy of which he was so obviously a part.

The issue of sufficiency of the evidence of guilt of LaMonica and Dentino is not one of knowledge of interstate travel. The evidence of their interstate travel is abundant. They were present at the game regularly over an extended period of time. The question is whether the evidence sustains a finding that they were members of the conspiracy. If the evidence sustains a conclusion that LaMonica and Dentino were employes of the...