United States v. Magliano, 9273

• Decision Date: 22 September 1964
• Docket Number: 9308.,No. 9273,9273
• Citation: 336 F.2d 817
• Parties: UNITED STATES of America, Appellee, v. Benjamin MAGLIANO, Anthony Nick Magliano, and Vincent DeSantis, Appellants. UNITED STATES of America, Appellee, v. Benjamin MAGLIANO and Vincent DeSantis, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

336 F.2d 817 (1964)

UNITED STATES of America, Appellee, v. Benjamin MAGLIANO, Anthony Nick Magliano, and Vincent DeSantis, Appellants.

UNITED STATES of America, Appellee, v. Benjamin MAGLIANO and Vincent DeSantis, Appellants.

Nos. 9273, 9308.

United States Court of Appeals Fourth Circuit.

Argued April 21, 1964.

Decided September 22, 1964.

Everett L. Buckmaster, Baltimore, Md. (George W. White, Jr., Wilbert H. Sirota, and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellant Benjamin Magliano.

Arnold M. Weiner and Joseph S. Kaufman, Baltimore, Md. (Paul A. Dorf, Baltimore, Md., on brief), for appellant Vincent DeSantis.

Michael DeFeo, Atty., Dept. of Justice (Herbert J. Miller, Jr., Asst. Atty. Gen., Philip Wilens, Atty., Dept. of Justice, and Thomas J. Kenney, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH and BELL, Circuit Judges, and CRAVEN, District Judge.

HAYNSWORTH, Circuit Judge.

The two appellants and Anthony Nick Magliano, a brother of one of the appellants, were found guilty by the District Court, sitting without a jury, of a conspiracy to violate federal wagering tax laws and four substantive offenses under the revenue laws.¹ Harry Anapa was also named in the indictment as a co-conspirator, but was not indicted. Anthony Nick Magliano, hereinafter referred to as "Nick," has not appealed.

Each of the three defendants below was sentenced for a period of two years on the conspiracy count and given one-year sentences on counts 3 and 5, all sentences to run concurrently. Fines were imposed on the remaining two counts. After this appeal had been taken by two of the defendants, a "Corrected Judgment and Commitment" was filed in which the one-year sentences on the substantive counts were altered so that they ran consecutively, but concurrently with the two-year sentence on the conspiracy count. The corrected sentences were imposed outside the presence of the defendants and without notice to them.

We affirm the conviction of Benjamin Magliano, sometimes referred to as "Bennie Trotta," but with a reduction in his sentence for reasons hereinafter stated. We think the conviction of DeSantis must be reversed.

The Government's case was founded principally upon the testimony of Richard J. Pozecki, an undercover agent for the Internal Revenue Service, and upon that of Harry Anapa, one of the alleged co-conspirators. They had been introduced to each other by the proprietor of Virgilio's Sandwich Shop in Baltimore. They had several conversations about the placing of wagers, and Anapa told Pozecki that he would obtain Bennie Trotta's "book" number for him, Bennie Trotta being the name used by the Appellant, Benjamin Magliano, in the trade. Anapa went to the Club Troc, operated by Trotta, where he made arrangements for the placement and handling of wagers. Based upon Anapa's assurances as to the minimum size of each bet and the weekly volume of bets he could produce from his customers, Trotta agreed to pay Anapa a twenty-five per cent commission, and Anapa was instructed by Trotta to settle all bets with him at the Club Troc. Trotta gave Anapa a telephone number which could be used in the placement of bets. It was later discovered by the agents that this number was unpublished, but was carried on the books of the telephone company in the name of Trotta's brother, Nick Magliano.

When the agents first undertook to use the number obtained by them through Anapa from Trotta, their proffered bets were declined. They reported this information to Anapa, who complained to Trotta. Trotta apologized for the inconvenience, explaining that his brother was in trouble, but that he would talk to the brother and the number could be used the next day. The next day the agents again attempted to place wagers by dialing the telephone number given them by Anapa, using the code word "Harry" to identify themselves as Anapa's customers, and their proffered bets were accepted. Their bets were net winners. Agent Pozecki went with Anapa to the Club Troc. There, Anapa spoke to Trotta, who then went into a backroom and returned with money representing the net proceeds of the agents' bets. This money Trotta gave to Anapa, who after leaving the Club Troc with Pozecki, turned it over to the agent as his winnings.

Later bets placed by the agents, under the procedural instructions received from Anapa, resulted in losses. They paid the losses to Anapa, who delivered the money to Trotta. Anapa wanted twenty-five per cent of those moneys as his commission, but Trotta refused payment, explaining that Anapa's commission was computed upon the book's net winnings after deducting all losses to Anapa's customers.

Thereafter, there were a number of changes in the telephone numbers to be used. The agents first learned of the first change from a woman answering the number first given them. She explained that Nick was not there and that the number had been changed. She gave them the new number to call, and when that was used, a person identifying himself as Nick answered the phone, and the agents recognized his voice as being the same person who had accepted their earlier wagers. This time, Nick refused to accept the wagers, explaining that "Bennie told me to stay out of it until after my trial." He went on to tell the agent that he had been arrested by federal agents the previous September, and that his trial was soon coming up. However, he gave the agents another number to use, and subsequent bets were placed over that number. Shortly after the agents had talked with Nick on the telephone, Anapa instructed them about the changes in the numbers to be used.

Meanwhile, Agent Pozecki had met the defendant DeSantis, and on several occasions he talked to, and on other occasions observed, DeSantis. DeSantis was supplying Virgilio, the proprietor of the sandwich shop, with telephone numbers to be used for the placement of bets. Some of these were the same numbers being supplied by Anapa for use by the agents, though Anapa, of course, did not realize that they were undercover agents. On two occasions DeSantis gave Pozecki numbers to use, and two of those numbers were the same which the agents were using under Anapa's instructions, but two others were not. On one occasion DeSantis was seen collecting money from Virgilio which Virgilio had lost on a bet. DeSantis on one occasion told Pozecki that he knew Bennie Trotta, and on another occasion that he knew that Nick Magliano was engaged as a pickup man in baseball wagering.

The evidence is clearly sufficient to support the conviction of Benjamin Magliano (Trotta). He contends, without persuasion, that the evidence did not show that he was a "writer," "banker," or a person having a proprietary interest in the wagering operation within the meaning of United States v. Calamaro, 354 U.S. 351, 77 S.Ct. 1138, 1 L.Ed.2d 1394. We think it does.

We look at the evidence, of course, in the light most favorable to the verdict.² So viewed, it clearly warrants the inference that Trotta, at the very least, had a proprietary interest in the operation. He received from Anapa the losses of Anapa's customers, and he delivered to Anapa money with which to pay their winnings. It was he who negotiated with Anapa about the minimum size of the bets, the weekly volume to be placed and the commission to be earned. On one occasion he complained to Anapa that the size of the bets was lower than had been represented. He reprimanded his brother, Nick, for not accepting a bet, apologized when bets were not accepted, and made effective arrangements for the acceptance of subsequent bets. Anapa's summary reference to the "book" as Trotta's adds little to the evidence, but the testimony that Trotta was the man who settled the bets, made the arrangements and issued the instructions abundantly warrants the Court's inference that, if he was not the sole banker, he had at least a proprietary interest in the business. That finding satisfies the requirements of Calamaro.

Trotta also questions the sufficiency of the evidence to show an attempt on his part willfully to evade federal tax laws. He correctly points out that, under the statutes, willfulness is an essential element of the offense, and unless there is actual knowledge of the requirements of the tax laws, there can be no willful intent to evade them.³

The record contains an ample basis for a finding that Trotta knew of the requirements of the revenue laws. His brother was under indictment and was about to be tried for a violation of those same revenue laws. Trotta told Anapa that his brother was in trouble and, for that reason, was being cautious. He, himself, did not disclose to Anapa the nature of the trouble the brother was in, but the brother, Nick, did do so. From this, the reasonable inference certainly arises that Nick's trouble, to which Trotta referred, was the same prosecution for violation of the wagering tax laws which Nick, himself, revealed. Otherwise, some unrelated trouble which Nick might have been in would not likely have occurred to Trotta as the obvious explanation for Nick's refusal to accept a bet when that fact was first reported to Trotta.

It may well be that Trotta's failure to procure the tax stamp and comply with the federal revenue laws was motivated primarily by fear of criminal prosecution under state statutes, but a finding of willfulness does not depend upon a determination of predominant motivation.⁴ This is true as to the conspiracy counts as well as to the substantive counts.⁵ Evidence of knowledge of the requirements of the taxing statutes, combined with proof of failure to pay the tax and file the required information furnishes a basis for a finding of willfulness.

II

While the evidence was quite sufficient to show the guilt of Trotta, it is insufficient to show the guilt of DeSantis. It may be, as the Government contends, that he also had a proprietary interest in the "book," but that is not shown by the...