United States v. Steve Thomas, United States of America v. Frank Schullo and Anthony Petrangelo

508 F.2d 1200
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 28, 1975
Docket73-1490, 73-1544
StatusPublished
Cited by43 cases

This text of 508 F.2d 1200 (United States v. Steve Thomas, United States of America v. Frank Schullo and Anthony Petrangelo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Steve Thomas, United States of America v. Frank Schullo and Anthony Petrangelo, 508 F.2d 1200 (8th Cir. 1975).

Opinions

BRIGHT, Circuit Judge.

Appellants Steve Thomas, Frank Schullo, and Anthony Petrangelo were tried before a jury in the United States District Court for the District of Minnesota (the late Judge Philip Neville, presiding), and convicted of a single viola[1202]*1202tion of 18 U.S.C. § 1955,1 which prohibits conducting an “illegal gambling business.” This appeal followed.

At trial, the Government’s evidence consisted primarily of recordings of wiretapped conversations between the appellants and three co-defendants not then on trial — Messrs. Wolk, Capra, and Fish-man — who admittedly conducted an illegal “bookmaking” operation in Minneapolis. Based on these telephonic communications and on the physical evidence of gambling paraphernalia found in appellants’ possession, the Government painted a picture of the appellants as bookmakers who played an integral part in the conduct of the Wolk book by “laying off” bets and by exchanging “line” information with the Wolk book on sporting events.2

On appeal, appellants raise the following issues:

(1) The contents of the intercepted oral communications should have been suppressed because the wiretap application was signed by a Deputy Assistant Attorney General and not the Attorney General or his specially-designated Assistant Attorney General as required under 18 U.S.C. § 2516;

(2) An evidentiary hearing should have been held to examine the truth of the Attorney General’s affidavit in which he asserted that he personally approved a request for authority to apply for a wiretap order by initialing a memorandum to that effect;

(3) The evidence is insufficient to establish that defendants participated in the Wolk gambling business to the ex[1203]*1203tent required to sustain a conviction under 18 U.S.C. § 1955;

(4) The trial court erred in instructing the jury that a violation of 18 U.S.C. § 1955 is established if the Government shows that a defendant who is a bookmaker “exchanges line or other information, or places or accepts layoff bets with another bookmaker;”

(5) The trial court erred in instructing the jury that the $2,000 per day gross revenue requirement of 18 U.S.C. § 1955(b)(l)(iii) is met by counting the total amount of wagers placed in any single day; and

(6) The statute, 18 U.S.C. § 1955, as construed by the trial court: (a) is an illegal Bill of Attainder, (b) is unconstitutionally vague, (c) contravenes the first, fifth, and sixth amendments, (d) is an improper delegation of legislative power under Article I, and (e) is an illegal usurpation of power specifically reserved to the states by the tenth amendment.

We find it unnecessary to fully discuss appellant’s contentions numbered above as (1), (2), (5), and (6). We agree with the late Judge Neville’s excellent discussion and proper determination of these issues in his district court opinion. United States v. Schullo, 363 F.Supp. 246 (D.Minn.1973). As to the validity of the wiretap (issue 1), we note that United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), on which Judge Neville relied, is in accord with the Supreme Court’s decision in United States v. Chavez, 416 U.S. 500, 94 S.Ct. 1849, 40 L.Ed.2d 336 (1974), which affirmatively answered the question of whether Justice Department procedures, such as those in the instant case, comply with the wiretap authorization requirements of 18 U.S.C. § 2516. We have discussed this issue extensively in United States v. Brick, 502 F.2d 219 (8th Cir. 1974). Since the initials of Attorney General Mitchell appear on the authorization for the wiretap and his affidavit filed in this case recites that he “approved a request for authority to apply for an interception order in this matter,” the appellants’ challenge to the wiretap must be rejected as similar challenges were rejected in Chavez and Brick.

We now turn to a consideration of the sufficiency of the evidence to sustain the conviction of each of the appealing defendants. The statute, 18 U.S.C. § 1955, defines “illegal gambling business” to mean, among other things, an operation which “involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business * * *.” As noted, the government’s case rested on transcribed logs of wiretapped conversations ■ between each appellant and the Wolk gambling establishment and on proof that all three defendants were bookmakers.

The appellants strongly argue that the evidence is insufficient to bring them within the purview of the statute.3 They claim that, even assuming they were laying off bets and giving line information to the Wolk organization, they were not “involved” in the “conduct” of the Wolk business. They assert that lay off bets, if actually made, constitute a form of insurance in which one bookmaker passes the risk of loss to another and that the interests of appellants, in fact, directly conflicted with the interests of the Wolk book.

As to Anthony Petrangelo, the taped telephone conversations disclose that he furnished the Wolk book with his “line” (point spreads on various sporting events) and received Wolk’s lay off betting on a regular and consistent basis. In addition, the two parties discussed opportunities for Petrangelo to further lay off a particular bet to an unnamed third party bookmaker.

The evidence against Frank Schullo indicates that he frequently called the Wolk operation inquiring of Wolk’s line and that he placed bets on selected ath[1204]*1204letic contests with Wolk on a fairly regular basis. The taped conversations indicate that some bets were lay offs although others may have been either lay offs or personal bets. In addition, the telephonic record indicates that Wolk made frequent lay off bets with Schullo based on Schullo’s line.

The evidence shows that Steve Thomas functioned as an intermediary in placing Wolk’s bets with an unnamed third party bookmaker. The transcribed conversations establish that Thomas complied with the requests of the Wolk book to obtain the line from the third party bookmaker on frequent occasions. If the odds were deemed favorable, Thomas placed Wolk’s bets with this bookmaker. In addition, Thomas placed some of his own personal bets with this same bookmaker.

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Bluebook (online)
508 F.2d 1200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steve-thomas-united-states-of-america-v-frank-schullo-ca8-1975.