McWILLIAMS, Circuit Judge.
These eight appeals have heretofore been consolidated for the purposes of briefing, oral argument and final disposition. In each instance, the appellant seeks reversal of a judgment of conviction for violation of federal statutes relating to gambling. The indictment named twelve persons as defendants. Prior to trial, one defendant pled guilty. At trial, a second defendant, upon conclusion of the Government’s case, was granted a directed verdict of not guilty. The jury acquitted two additional defendants, but convicted the other eight defendants upon one or more counts of a four count indictment. The eight defendants convicted by the jury now appeal.
Six appellants, namely, Clarence Smal-done, Carol Jean Reeb, Larry Owens, Anita Rowland, Edna Frances De Santis, and Samuel Foderaro, were convicted of conspiring to violate the federal statute relating to interstate travel or transportation in aid of racketeering enterprises. 18 U.S.C. §§ 371, 1952. The same six appellants and a seventh appellant, John Henry Routa, were convicted under a second count of conducting a gambling business in violation of 18 U.S.C. § 1955.
The eighth appellant, Dominic La Rocco, was convicted under a third count of using Satan’s Lounge, located at 1961 Market Street, Denver, Colorado, which lounge La Rocco owned, in the conduct of a gambling activity and in the collection of gambling debts in violation of 18 U.S.C. §§ 1961, 1962(c), 1963. Under a fourth count, Carol Jean Reeb, who was convicted under counts [1132]*11321 and 2, was also convicted of using Gaeta-no’s Restaurant, located at 3670 Tejón Street, Denver, Colorado, where she was employed, in the conduct of gambling activity and in the collection of gambling debts in violation of 18 U.S.C. §§ 1961, 1962(c), 1963.
The Government’s evidence tended to show that from July 1, 1975, to March 1, 1976, the eight appellants, and others, were engaged in a widespread bookmaking operation in the Denver, Colorado area, and also in the Pueblo, Colorado area. The illegal gambling business centered around bookmaking of certain sporting events, particularly college and professional football for the 1975 season. At trial, it was the basic position of all defendants that, though some of them may well have been violating state laws pertaining to gambling, there were no violations of federal laws.
We do not propose to set forth a summary of the Government’s case. Trial of the case took several weeks and the record is long. The Government’s evidence in the instant case as to the nature of the gambling business and its modus operandi is strikingly parallel to the Government’s evidence in United States v. Eugene Smal-done, 485 F.2d 1333 (10th Cir. 1973). A reading of our opinion in the Eugene Smal-done case will indicate, and quite clearly, the nature of the gambling business conducted by these appellants. Suffice it to say, the present record is replete with reference to such terms as runners, phone men, relay or pickup men, bookkeepers, managers, line information, point spread, vigorish, vig, juice, parlay card, lay-off and the like. Accordingly, we shall only refer to the evidence in the instant case as it becomes necessary to an understanding of the several matters urged here as grounds for reversal.
1. Five-person requirement
Smaldone, Reeb, Rowland, Owens, De Santis and Foderaro urge as ground for reversal the instruction given the jury by the trial court concerning the essentials of 18 U.S.C. § 1955. In this regard, the trial court, in essence, instructed the jury that, in order to convict under § 1955, the jury must find that the gambling business involved five or more persons who “conduct, finance, manage, supervise, direct or own all or a part of such business.” The word “conduct” was then defined as including all who participate in the operation of the gambling business, “regardless of how minor their jobs and whether or not they be labeled as agents, runners, or independent contractors,” excepting the person who simply places a bet. The instruction given is in substantial accord with the statute. It is similar to the instruction given in United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973). The statute is intended to apply to all who participate except the bettor. United States v. Joseph, 519 F.2d 1068 (5th Cir. 1975); United States v. Jones, 491 F.2d 1382 (9th Cir. 1974); United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); United States v. Becker, 461 F.2d 230 (2d Cir. 1972).
The defendants tendered certain instructions regarding lay-off bets, which the trial court declined to give the jury. We find no error in this regard. The evidence did not require the giving of this type of instruction. In short, the jury was adequately instructed as to the five-person requirement and as to the definition of the word “conduct.”
2. Wiretap evidence
Appellants Smaldone, Reeb, Rowland, Owens, De Santis and Foderaro argue that the trial court erred in denying their motion to suppress evidence acquired through the use of wiretaps on the telephones of certain of the defendants. The wiretaps in question were authorized by a state court. These appellants claim that the affidavit of Detective Foster was insufficient in that it did not sufficiently set forth the necessity for a wiretap and his inability to obtain the sought-after evidence by other investigative techniques. We have examined the affidavit in question and conclude that there was a sufficient showing that other investigative procedures would have been ineffective. United States v. Bobo, 477 F.2d 974 (4th Cir. 1973); People [1133] v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974). The affidavit explains, for example, why a surveillance would be ineffective and states that potential witnesses were uniformly unwilling to testify in court because of fear of reprisal. The affidavit, in our view, was sufficient.
3. Cross-examination of Foderaro
Free access — add to your briefcase to read the full text and ask questions with AI
McWILLIAMS, Circuit Judge.
These eight appeals have heretofore been consolidated for the purposes of briefing, oral argument and final disposition. In each instance, the appellant seeks reversal of a judgment of conviction for violation of federal statutes relating to gambling. The indictment named twelve persons as defendants. Prior to trial, one defendant pled guilty. At trial, a second defendant, upon conclusion of the Government’s case, was granted a directed verdict of not guilty. The jury acquitted two additional defendants, but convicted the other eight defendants upon one or more counts of a four count indictment. The eight defendants convicted by the jury now appeal.
Six appellants, namely, Clarence Smal-done, Carol Jean Reeb, Larry Owens, Anita Rowland, Edna Frances De Santis, and Samuel Foderaro, were convicted of conspiring to violate the federal statute relating to interstate travel or transportation in aid of racketeering enterprises. 18 U.S.C. §§ 371, 1952. The same six appellants and a seventh appellant, John Henry Routa, were convicted under a second count of conducting a gambling business in violation of 18 U.S.C. § 1955.
The eighth appellant, Dominic La Rocco, was convicted under a third count of using Satan’s Lounge, located at 1961 Market Street, Denver, Colorado, which lounge La Rocco owned, in the conduct of a gambling activity and in the collection of gambling debts in violation of 18 U.S.C. §§ 1961, 1962(c), 1963. Under a fourth count, Carol Jean Reeb, who was convicted under counts [1132]*11321 and 2, was also convicted of using Gaeta-no’s Restaurant, located at 3670 Tejón Street, Denver, Colorado, where she was employed, in the conduct of gambling activity and in the collection of gambling debts in violation of 18 U.S.C. §§ 1961, 1962(c), 1963.
The Government’s evidence tended to show that from July 1, 1975, to March 1, 1976, the eight appellants, and others, were engaged in a widespread bookmaking operation in the Denver, Colorado area, and also in the Pueblo, Colorado area. The illegal gambling business centered around bookmaking of certain sporting events, particularly college and professional football for the 1975 season. At trial, it was the basic position of all defendants that, though some of them may well have been violating state laws pertaining to gambling, there were no violations of federal laws.
We do not propose to set forth a summary of the Government’s case. Trial of the case took several weeks and the record is long. The Government’s evidence in the instant case as to the nature of the gambling business and its modus operandi is strikingly parallel to the Government’s evidence in United States v. Eugene Smal-done, 485 F.2d 1333 (10th Cir. 1973). A reading of our opinion in the Eugene Smal-done case will indicate, and quite clearly, the nature of the gambling business conducted by these appellants. Suffice it to say, the present record is replete with reference to such terms as runners, phone men, relay or pickup men, bookkeepers, managers, line information, point spread, vigorish, vig, juice, parlay card, lay-off and the like. Accordingly, we shall only refer to the evidence in the instant case as it becomes necessary to an understanding of the several matters urged here as grounds for reversal.
1. Five-person requirement
Smaldone, Reeb, Rowland, Owens, De Santis and Foderaro urge as ground for reversal the instruction given the jury by the trial court concerning the essentials of 18 U.S.C. § 1955. In this regard, the trial court, in essence, instructed the jury that, in order to convict under § 1955, the jury must find that the gambling business involved five or more persons who “conduct, finance, manage, supervise, direct or own all or a part of such business.” The word “conduct” was then defined as including all who participate in the operation of the gambling business, “regardless of how minor their jobs and whether or not they be labeled as agents, runners, or independent contractors,” excepting the person who simply places a bet. The instruction given is in substantial accord with the statute. It is similar to the instruction given in United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973). The statute is intended to apply to all who participate except the bettor. United States v. Joseph, 519 F.2d 1068 (5th Cir. 1975); United States v. Jones, 491 F.2d 1382 (9th Cir. 1974); United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); United States v. Becker, 461 F.2d 230 (2d Cir. 1972).
The defendants tendered certain instructions regarding lay-off bets, which the trial court declined to give the jury. We find no error in this regard. The evidence did not require the giving of this type of instruction. In short, the jury was adequately instructed as to the five-person requirement and as to the definition of the word “conduct.”
2. Wiretap evidence
Appellants Smaldone, Reeb, Rowland, Owens, De Santis and Foderaro argue that the trial court erred in denying their motion to suppress evidence acquired through the use of wiretaps on the telephones of certain of the defendants. The wiretaps in question were authorized by a state court. These appellants claim that the affidavit of Detective Foster was insufficient in that it did not sufficiently set forth the necessity for a wiretap and his inability to obtain the sought-after evidence by other investigative techniques. We have examined the affidavit in question and conclude that there was a sufficient showing that other investigative procedures would have been ineffective. United States v. Bobo, 477 F.2d 974 (4th Cir. 1973); People [1133] v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974). The affidavit explains, for example, why a surveillance would be ineffective and states that potential witnesses were uniformly unwilling to testify in court because of fear of reprisal. The affidavit, in our view, was sufficient.
3. Cross-examination of Foderaro
Foderaro, as well as Smaldone, Reeb, Rowland, Owens and De Santis, complain about the cross-examination of Foderaro. On cross-examination, Foderaro was asked if he could explain telephone calls between the residence of his former wife and that of the defendant Smaldone. Objection was made and overruled, and Foderaro answered that he had no explanation since he was not living with his wife at the time in question. The matter was then dropped. In this Court, complaint is now made that the Government in the trial court never did establish that in fact there were telephone calls from the residence of Foderaro’s former wife to the Smaldone residence. Any possible error in this regard, viewed in context, would be harmless error. This was a two-week trial. In such circumstance, it is difficult to conceive of how a single question and answer, or even several, would require a reversal. In any event, the scope and extent of cross-examination is within the discretion of the trial judge, and his ruling will not on appeal be ground for reversal unless clearly prejudicial.
4. Refusal to identify informer
Smaldone, Reeb, Rowland, Owens and De Santis argue that the trial court erred in denying their motion for disclosure of a Government informant. A hearing was held on this motion, but a transcript of that proceeding does not appear to be included in the record on appeal. In such circumstance, we assume that the trial court’s findings are supported by the evidence and that its conclusions are in accord with such cases as Rovaro v. United States, 353 U.S. 53 (1957); United States v. Martinez, 487 F.2d 973 (10th Cir. 1973).
5. Rule 7(c)(2)
Reeb argues that count 4 of the indictment should have been dismissed for failure to comply with Fed.R.Crim.P. 7(c)(2).