United States v. Covello

Decision Date24 March 1969
Docket NumberNo. 322,Docket 31293.,322
Citation410 F.2d 536
PartiesUNITED STATES of America, Appellee, v. Joseph COVELLO, Appellant.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Robert G. Morvillo, John E. Sprizzo, Asst. U. S. Attys., Robert M. Morgenthau, U. S. Atty., for appellee.

Robert L. Weinberg, Edward Bennett Williams, Vincent J. Fuller, Williams & Connolly, Washington, D. C., for appellant.

Before WATERMAN and FEINBERG, Circuit Judges, and BARTELS, District Judge.*

WATERMAN, Circuit Judge:

Joseph Covello having been found guilty after a jury trial in the United States District Court for the Southern District of New York appeals from the judgment of conviction entered upon the verdict. He was indicted on nineteen counts,1 was found guilty on counts 1 through 6, on count 17 and on count 19, and was acquitted by the jurors on each of the remaining eleven counts. We affirm the judgment of conviction.

Count 1 charged appellant Covello and codefendants Thomas Molinaro, Armando Restaino and Anthony Nappi with a conspiracy in violation of 18 U.S.C. § 3712 to violate federal interstate gambling statutes, 18 U.S.C. § 10843 and 18 U.S.C. § 1952.4

Counts 2 through 6 charged appellant Covello with using interstate telephone facilities between New York and New Jersey in violation of 18 U.S.C. § 1084. Counts 7 through 11 charged Covello and Molinaro, and counts 12 through 16 charged Covello and Restaino, with similar violations of § 1084.

Counts 17 through 19 charged appellant Covello and Molinaro with violation of 18 U.S.C. § 1952 for allegedly traveling in interstate commerce between New Jersey and New York to conduct a business enterprise involving gambling in violation of a New Jersey statute prohibiting bookmaking.

Covello was sentenced to concurrent sentences of three years imprisonment on count 1, two years imprisonment on each of counts 2 through 6, and three years imprisonment on each of counts 17 and 19.5

The Government's case in support of the allegations in counts 2 through 16 was based on the testimony of four witnesses and the New York Telephone Company records of toll calls from a New York City number, TR 9-3755, to three New Jersey numbers, OR 6-1730, HU 4-4190, and HU 4-9011. The New York number was listed to Howard Garfinkel at 944 Park Avenue, New York City, where Howard and his brother Merrill Garfinkel lived. The New Jersey numbers were listed to one John Marsh and to defendant Molinaro and defendant Restaino respectively. The toll call records the Government submitted in evidence also showed calls to Covello's home number, PL 9-2829, and to the number of the Chez Charles Night Club, HU 3-9405, where Covello was employed as the manager.

Merrill Garfinkel, the key government witness, testified that during the baseball season of 1961 and throughout the football, basketball, and baseball seasons of 1961 up to June 19, 1963, he furnished Covello for an agreed biweekly compensation of $200 a "betting line" by telephoning the "line" to a number in New Jersey. In addition, Merrill testified he would wager with Covello for himself and others over the telephone by using the same number. The calls, he said, were usually placed from a New York City phone booth but were made occasionally from his home at 944 Park Avenue. Merrill did not recall the number which he called in New Jersey during the 1961 baseball season, but he did remember the numbers OR 6-1730, HU 4-4190, and HU 4-9011 as the ones by which he reached Covello during the 1962 -1963 sporting seasons. He had no reccollection of the specific contents of any of these calls.

Howard Garfinkel corroborated the testimony of his brother. He testified that he was sometimes present when Merrill called Covello and that he furnished Covello the "betting line" during periods when his brother was on vacation.

A third witness, Vincent Conour, testified that, upon being furnished Covello's number at OR 6-1730 by Merrill Garfinkel, he thereafter telephoned wagers to that number. He also described a visit he made to Covello at 312 Park Avenue, East Orange, New Jersey, the address where OR 6-1730 was located.

A fourth witness, Herbert Seid, testified that he too was introduced to Covello over the telephone by Merrill Garfinkel and that he thereafter placed wagers with Covello by telephone in 1962 and 1963. He could not remember, however, what numbers in New Jersey he had telephoned.

Counts 2 through 6 on which Covello was convicted involve only the OR 6-1730 number. The other two New Jersey numbers relate to counts 7 through 16 on which Covello was acquitted.

Count 17 was based on the testimony of witness Conour concerning an alleged meeting with Covello and Molinaro at Conour's apartment in New York on May 14, 1962 to settle a balance of $5,123 owed to Conour for his winnings.

Count 19 was based on an alleged settlement meeting in New York on June 13, 1963, at which Covello, Molinaro, Merrill and Howard Garfinkel and Herbert Seid were allegedly present.

The sufficiency of the Government's evidence at trial is not in issue. Appellant's appeal, however, alleges a number of evidentiary errors.

I. § 605 of the Federal Communications Act

At the trial the Garfinkels were unable to recall the specific times and dates of their alleged phone calls to the defendant. Instead, the Government submitted in evidence the New York Telephone Company's records of toll calls, or "toll slips," made from the Garfinkels' home number to the aforementioned New Jersey numbers. The slips showed the number from which the call was placed, the number and city to which the call was placed, the fact that the call was completed, the date and time of the call and the length of the conversation. Appellant's objection to the admissibility of the "toll slips" as evidence obtained in violation of § 605 of the Federal Communications Act of 1934, 47 U.S.C. § 605 (1964), as amended, Omnibus Crime Control and Safe Streets Act of 1968, P. L. 90-351 (June 19, 1968), was denied.

Section 605 then provided:

§ 605. Unauthorized publication or use of communications
No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: Provided, That this section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for use of the general public, or relating to ships in distress.6

The statute addresses itself to two distinct classes of persons. See Bubis v. United States, 384 F.2d 643, 646 (9 Cir. 1967); United States v. Russo, 250 F.Supp. 55 (E.D.Pa. 1966). In the first category are persons who have to do with the "receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio." The second category encompasses all other persons not within the first class. Arguably, the accounting employees of the New York Telephone Company who furnished the FBI the toll slips in the case at bar, having nothing to do with sending, receiving, or forwarding communications, are not within the ambit of persons proscribed by Clause 1 of § 605, see Hanna v. United States, 393 F.2d 700, 705 (5 Cir. 1968) (rev'd on rehearing, 404 F.2d 405) (5 Cir. 1968); Bubis v. United States, supra at 646, and we need go no further unless we find an interception as required by Clause 2. For purposes of this case, however, and this case only, we assume, as appellant apparently wishes us to hold, that treatment of the entire telephone company as one person is the sounder construction of the statute. See Hanna v. United States, 404 F.2d 405 (5 Cir. 1968); United States v. Russo, supra.

Defendant argues that the divulgence of the toll slips was a prohibited disclosure by the corporate person of the existence of a communication within the meaning of § 605. We disagree. We cannot subscribe to such a literal application of the statutory language where the effect of such an interpretation is to transgress the obvious congressional intent. Section 605 "must be interpreted in the light of reason and common understanding to reach the results intended by the legislature." Rathbun v. United States, 355 U.S. 107, 109, 78 S.Ct. 161, 163, 2...

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