United States v. Tomeo, 71-1647.
| Decision Date | 14 June 1972 |
| Docket Number | No. 71-1647.,71-1647. |
| Citation | 459 F.2d 445 |
| Parties | UNITED STATES of America, Appellee, v. Michael Anthony TOMEO, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
V. G. Seavy, Jr., Denver, Colo. (James G. Johnston, Denver, Colo., on the brief), for appellant.
W. Allen Spurgeon, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and Milton C. Branch, Asst. U. S. Atty., on the brief), for appellee.
Before CLARK*, Associate Justice, and SETH and McWILLIAMS, Circuit Judges.
This is a direct appeal from a conviction of interstate gambling in violation of 18 U.S.C. § 1084(a).
The evidence shows that the appellant was actively engaged in bookmaking in Colorado. Mr. Huber, the Government's only witness to testify as to the interstate character of the offense, is a Wisconsin businessman who had met appellant in Denver. The appellant provided Mr. Huber with his phone number and explained that if Huber wished to place a bet he should call the appellant in Denver. At one point the phone number was changed. Huber placed two or three calls a week during two successive football seasons, calling early in the week to get the odds, and calling back on Saturday or Sunday to place his bets. He testified he did not place straight bets but parlayed three or four teams with the Doyle system, which he could not bet elsewhere. Nearly all of the calls were placed from Monroe, Wisconsin, to Denver, Colorado, and the witness talked to Mr. Tomeo personally. The witness Huber testified he came to Denver from time to time, saw Mr. Tomeo socially, and had discussed the possibility of Mr. Tomeo being a representative of Mr. Huber's business. The two had been acquainted since 1963 or 1964.
There is no question that the appellant was engaged in the business of betting and wagering; the question is whether appellant's acts constituted a crime within the meaning of the statute under which he was charged. 18 U.S.C. § 1084(a) reads:
"Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate . . . commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event . . ., or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both."
As to the actual placing of bets, appellant argues that the word "transmission" in the statute means sending and not receiving, and it is pointed out that appellant only received the bets, Huber having placed them. With regard to the transmission of odds, appellant argues that the indictment charges transmission "from Monroe, Wisconsin, to Denver and Adams County, Colorado," and it is urged that it would have been physically impossible under the charge for the Denver-based appellant to have transmitted the information.
At present the Circuits do not agree on the meaning and scope of section 1084(a). In Telephone News System, Inc. v. Illinois Bell Telephone Co., 220 F.Supp. 621 (N.D.Ill.1963), aff'd 376 U. S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83, a case involving recorded horse racing information to anyone calling a particular number, a three-judge court rejected a Government contention that the word "transmission" means receiving as well as sending. The court there held that Congress there meant to use the term "transmission" as sending only, because in other subsections the term "transmission or receiving" was used. Hence both words would have here been used if Congress had intended sending as well as receiving. In a case involving the receipt of ticker tape transmissions, the Seventh Circuit adopted the same construction. United States v. Stonehouse, 452 F.2d 455 (7th Cir. 1971).
The Government's position received...
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