United States v. Barrow, No. 15093-15097.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBIGGS, , and KALODNER and SMITH, Circuit
Citation363 F.2d 62
Docket NumberNo. 15093-15097.
Decision Date18 July 1966
PartiesUNITED STATES of America, Appellee, v. George BARROW, Benny Bonanno, Fred DiPatrizio, Joseph Mattia and Pasquale Pillo, Appellants.

363 F.2d 62 (1966)

UNITED STATES of America, Appellee,
v.
George BARROW, Benny Bonanno, Fred DiPatrizio, Joseph Mattia and Pasquale Pillo, Appellants.

Nos. 15093-15097.

United States Court of Appeals Third Circuit.

Argued September 14, 1965.

Decided July 18, 1966.

Rehearing Denied August 30, 1966.


363 F.2d 63

Stanford Shmukler, Philadelphia, Pa. (Morton Witkin, Witkin & Egan, Philadelphia, Pa., on the brief), for appellants.

Philip J. Hoskins, and Gerald Goldfarb, Sp. Attys., Dept. of Justice, Washington, D. C. (Fred M. Vinson, Jr., Asst. Atty. Gen., Thomas F. McBride, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellee.

Before BIGGS, Chief Judge, and KALODNER and SMITH, Circuit Judges.

WILLIAM F. SMITH, Circuit Judge.

The appellants were tried by a jury and convicted on the first count of a multiple count indictment charging them with conspiracy to violate § 1952 of Title 18 U.S. C.A. Pillo and DiPatrizio were also convicted on each of three counts charging substantive offenses. The present appeals are from the judgments entered on the jury verdicts.

The pertinent provisions of the statute with which we are here concerned read as follows:

"(a) Whoever travels in interstate * * * commerce or uses any facility in interstate * * * commerce, * * *, with intent to —
* * * * * *
(3) * * * promote, manage, establish, carry on, or facilitate the
363 F.2d 64
promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs * * * (3), shall be fined * * * or imprisoned * *, or both.
"(b) As used in this section `unlawful activity\' means (1) any business enterprise involving gambling, * * *, in violation of the laws of the State in which * * * committed * * *."

FACTS

Between the middle of November 1961, and the middle of January 1962, the appellants were engaged in various capacities in the operation of a gambling casino at 237 Cherry Street, Reading, Pennsylvania, in violation of State laws, 18 P.S. §§ 4603, 4605 and 4606. The casino, furnished and equipped as a dice room, occupied the entire ground floor of a commercial building.

SUFFICIENCY OF EVIDENCE

The appellants maintain that the evidence was insufficient to support their convictions on the charge of conspiracy. Pillo and DiPatrizio also urge that the evidence was insufficient to support their convictions on the substantive charges. It is conceded that there was ample proof that they had been engaged in gambling operations in violation of State law. However, the appellants argue that the evidence was insufficient to support the conclusion that they had violated the federal statute.

We think it advisable to state at the outset the general principles by which we must be guided in passing on the sufficiency of the evidence relating to the charge of conspiracy.

The crime of conspiracy, as defined in § 371 of Title 18 U.S.C.A., is seldom susceptible of proof by direct evidence. Proof of the crime may rest as it frequently does, on indirect or circumstantial evidence. The existence of a conspiracy may be inferred from evidence of related facts and circumstances from which it appears, as a reasonable and logical inference, that the activities of the participants in the criminal venture could not have been carried on except as the result of a preconceived scheme or common understanding. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Amedeo, 277 F.2d 375 (3rd Cir. 1960); United States v. Monticello, 264 F.2d 47 (3rd Cir. 1959); United States v. Migliorino, 238 F.2d 7 (3rd Cir. 1956).

There was substantial evidence from which the jury could have found that Pillo, DiPatrizio and Mattia travelled regularly from their homes in New Jersey to the casino in Reading, where they were employed as "ladder men." Each of them was stationed at a dice table as an overseer and, as such, "facilitated" the games as they progressed. As overseers their principal function was to police the games on behalf of the "house." The evidence was more than sufficient to support the jury's determination that Pillo and DiPatrizio were guilty of the substantive offenses and that they and Mattia were involved in the conspiracy.

While there was no direct evidence that Barrow knew of the interstate aspects of the gambling enterprise, there was ample circumstantial evidence from which the jury could have inferred that he did. There was evidence from which the jury could have found that Barrow managed and promoted the gambling operations. He generally supervised the employees, including those who came from New Jersey; he was the final arbiter of disputes relating to the roll or call of the dice; he made the final decision when any question arose as to whether a prospective patron should be admitted to the casino; he provided "house money" when the dice game began and removed excess cash from the table as play continued; and, he was in almost daily association with the employees. At times Barrow was assisted by Mattia in the performance of his many duties. A more complete summary of the evidence relating to Barrow is contained in the opinion of the court below. 229 F.Supp. 722, 726.

363 F.2d 65

We believe that the evidence as a whole, viewed in the light most favorable to the prosecution, was susceptible of a reasonable and logical inference that Barrow, as manager and promoter, was fully aware of the scope of the illegal enterprise, including its interstate aspects. See United States v. Palladino, 203 F.Supp. 35, 41 (D.C.Mass.1962). The inference was not only justified, it was almost inescapable. It is inconceivable that Barrow would have placed employees like Pillo, DiPatrizio and Mattia in positions of trust without knowing who they were and where they came from.

The evidence relating to Bonanno's participation in the conspiracy is summarized in the opinion of the court below. 229 F.Supp. 722, 727. We think that this evidence was insufficient to warrant the submission of the issue of his guilt to the jury.

The appellants, relying on United States v. Honeycutt, 311 F.2d 660 (4th Cir. 1962), argue that the Government was required to prove that the interstate travel was an integral part of and essential to the gambling operations. The cited case does not support this argument. The enactment prohibits in the broadest terms interstate travel with the requisite intent followed by the performance or attempts to perform any of the acts specified in subparagraphs (a) (3), supra. There is nothing therein which limits its application to interstate travel essential to the unlawful activity. See Bass v. United States, 324 F.2d 168 (8th Cir. 1963).

CONSTITUTIONALITY OF STATUTE

The appellants contend that the statute, as applied to the facts in this case, is unconstitutional. This contention is predicated on the premise that the gambling enterprise here in question was a local activity beyond the reach of Congressional authority. It is argued that the federal enactment constituted an encroachment upon the powers reserved to the States under the Tenth Amendment. The question raised by this argument was fully discussed by the trial judge, 212 F.Supp. 837, and we agree with his well reasoned opinion. Moreover, there are other cases in which arguments similar to the one advanced here were rejected as without merit. United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964), cert. den. 381 U.S. 915, 85 S.Ct. 1530, 14...

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72 practice notes
  • United States v. Zirpolo, Cr. A. No. 75-67.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 1, 1968
    ...upon this statute was made and denied, and the constitutionality of Section 1952 upheld, in this Circuit in United States v. Barrow, 363 F.2d 62 (3 Cir. 1966) cert. den. 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967). Other Circuits, faced with an identical proposition, have upheld Sect......
  • United States v. Kenny, No. 71-1886 to 71-1890.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 22, 1972
    ...437 F.2d 327, 331-332, 340 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971); United States v. Barrow, 363 F.2d 62 (3d Cir.1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 The evidence on the two conspiracy counts was essentially the same. The ......
  • Commonwealth of Pa. v. Local U. No. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 4, 1972
    ...of circumstances'." (p. 80, 62 S.Ct. p. 469) (emphasis added) The Court of Appeals for the Third Circuit in United States v. Barrow, 363 F.2d 62 (3rd Cir. 1966), cert. den., 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1966), held similarly in this regard "The crime of conspiracy, . . . is ......
  • United States v. Gerhart, Cr. A. No. 513 (Beckley)
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • October 1, 1967
    ...not affording a person notice of what he must do to violate it. This contention has many times been laid to rest. United States v. Barrow, 363 F.2d 62 (3d Cir. 1966); United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964); Bass v. United States, 324 F.2d 168 (8th Cir. In like fashion, defenda......
  • Request a trial to view additional results
72 cases
  • United States v. Zirpolo, Cr. A. No. 75-67.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 1, 1968
    ...upon this statute was made and denied, and the constitutionality of Section 1952 upheld, in this Circuit in United States v. Barrow, 363 F.2d 62 (3 Cir. 1966) cert. den. 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967). Other Circuits, faced with an identical proposition, have upheld Sect......
  • United States v. Kenny, No. 71-1886 to 71-1890.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 22, 1972
    ...437 F.2d 327, 331-332, 340 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971); United States v. Barrow, 363 F.2d 62 (3d Cir.1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 The evidence on the two conspiracy counts was essentially the same. The ......
  • Commonwealth of Pa. v. Local U. No. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 4, 1972
    ...of circumstances'." (p. 80, 62 S.Ct. p. 469) (emphasis added) The Court of Appeals for the Third Circuit in United States v. Barrow, 363 F.2d 62 (3rd Cir. 1966), cert. den., 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1966), held similarly in this regard "The crime of conspiracy, . . . is ......
  • United States v. Gerhart, Cr. A. No. 513 (Beckley)
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • October 1, 1967
    ...not affording a person notice of what he must do to violate it. This contention has many times been laid to rest. United States v. Barrow, 363 F.2d 62 (3d Cir. 1966); United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964); Bass v. United States, 324 F.2d 168 (8th Cir. In like fashion, defenda......
  • Request a trial to view additional results

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