United States v. Bartello, 59-70.

• Decision Date: 19 October 1970
• Docket Number: No. 59-70.,59-70.
• Citation: 432 F.2d 1030
• Parties: UNITED STATES of America, Appellee, v. Mike Bruno BARTELLO, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

432 F.2d 1030 (1970)

UNITED STATES of America, Appellee, v. Mike Bruno BARTELLO, Appellant.

No. 59-70.

United States Court of Appeals, Tenth Circuit.

October 19, 1970.

Ivan E. Barris, Detroit, Mich. (Joseph W. Louisell and Carl Ziemba, Detroit, Mich., of counsel, with him on the brief), for appellant.

Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., with him on the brief), for appellee.

Before LEWIS, Chief Judge, and SETH and HICKEY^**, Circuit Judges.

PER CURIAM.

The appellant was charged under a five count indictment; four of the counts relate to substantive offenses under 18 U.S.C. § 1952 and 18 U.S.C. § 2, and the fifth count charged a conspiracy to violate 18 U.S.C. § 1952. The appellant was found guilty and sentenced on all counts.

This appellant and several others were charged in each of the counts referred to above. All of the parties were tried together initially and were found guilty. Upon appeal to this court the convictions of all of the defendants were affirmed with the exception of this appellant, Mike Bruno Bartello. His conviction was reversed, he was retried alone, found guilty, and has again appealed. The facts are set out in the opinion filed in the original appeal, Dillon v. United States, 391 F.2d 433 (10th Cir.), and need not be described in detail in this opinion.

The indictment charged violation of 18 U.S.C. § 1952 in that the appellant, with others, with the intent to carry on unlawful activities, and in violation of the Act, did travel in interstate commerce upon the several dates set forth in the indictment. These offenses charged the appellant as an accessory before the fact to have police officers bribed and charged also the consummation of such a bribe. The charge describes the unlawful activities as consisting of gambling or a lottery known as Bingo. The record demonstrates that the several parties did attempt to establish a Bingo game in the State of Kansas, and in so doing sought to bribe police officers. In addition the proof also shows that the officers were sought to be bribed to protect the appellants in engaging in, soliciting, and performing abortions in the State of Kansas contrary to its laws.

On the appeal, this appellant urges as grounds for reversal several principal points. The first is that the trial court was in error in refusing to grant appellant's motion for a judgment of acquittal on the ground that there was an insufficient showing that the appellant traveled in interstate commerce on the dates set forth in counts one, two, and three of the indictment. The second point urged relates to count four, and the same ground was urged in the appellant's motion for judgment as alleged as to counts one, two, and three.

From a close examination of the record it must be concluded that there was sufficient evidence to warrant the trial court in the denial of appellant's motion for a judgment of acquittal. The record demonstrates that on or about the dates set forth in the indictment in the several counts, the defendants traveled between Detroit and Wichita, and upon their arrival in Wichita did engage in activities in furtherance of the alleged unlawful activities and in furtherance of the abortion scheme. The appellant, a resident of Detroit, Michigan, is shown to have been in Wichita on or about the times which are asserted in the several counts of the indictment. Tafoya v. United States, 386 F.2d 537 (10th Cir.). There is further proof that he registered at motels in Wichita on or about the dates indicated, or met with various persons there concerning the proposed activities of the group. In the registration by the appellant at the motels in Wichita, he gave as his address a street number in Detroit, Michigan, which was also used by some of the other defendants. Furthermore, on several of the occasions other evidence was introduced showing the actual travel by the appellant. This evidence shows that the appellant participated in meetings relative to the abortion scheme, and negotiations were undertaken to procure Bingo equipment and the rental of a place to hold the Bingo games.

The test for a review of the action of the trial court of a motion for acquittal is set out in Wall v. United States, 384 F.2d 758 (10th Cir.), where we said:

"In deciding a motion for acquittal the trial judge determines whether, considering the evidence in the light most favorable to the government, there is substantial evidence from which a jury might reasonably find that an accused is guilty beyond a reasonable doubt. This rule does not encroach on the presumption of innocence. It recognizes the procedure by which the presumption may be overcome."

See also Swallow v. United States, 307 F.2d 81 (10th Cir.); Nickles v. United States, 381 F.2d 258 (10th Cir.), and Maguire v. United States, 358 F.2d 442 (10th Cir.).

The appellant urges that the trial court was also in error in refusing to grant his motion for judgment of acquittal on the count of the indictment alleging a conspiracy. The record clearly shows the relationship of this appellant with the other conspirators and at all relevant times charged in the indictment, and the record clearly describes the scope and purpose of the conspiracy. The record...