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United States v. Gerry

decided: March 28, 1975.


Appeal from judgments of conviction after jury trial in the Eastern District of New York, Orrin G. Judd, Judge, finding appellants guilty of influencing the outcome of harness races by bribery and of conspiracy to do so in violation of 18 U.S.C. § 224. Affirmed.

Lumbard, Friendly and Feinberg, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

Following an eleven-week jury trial in the Eastern District of New York, the appellants Forrest Gerry and Richard Perry were on May 31, 1974 convicted of influencing the outcome of harness races by bribery (count 1) and of conspiring to do so (count 2) in violation of 18 U.S.C. § 224. The indictment which set forth the charges against Gerry and Perry named twenty-eight individuals as defendants. Of these, two pled guilty;*fn1 five were severed;*fn2 the trial judge directed verdicts of acquittal as to five; and, the jury acquitted fourteen. Only the two appellants were convicted.

On July 19, 1974 the appellant Gerry was sentenced to concurrent terms of four years imprisonment on each of the two counts and was fined ten thousand dollars on each count. The appellant Perry was sentenced, also on July 19, 1974, to concurrent terms of two and one-half years imprisonment on each of the two counts and was fined ten thousand dollars.

Perry was sentenced under 18 U.S.C. § 4208(a)(2) with eligibility for parole after six months imprisonment.

As is not surprising after a multi-defendant eleven-week trial, the appellants raise many claims of error. These alleged errors relate generally to (1) the sufficiency of the evidence; (2) the correctness of various evidentiary rulings made by the trial judge; (3) the use, consequences, and implications of tapes surreptitiously recorded at the prosecutor's office; and (4) the propriety of both the prosecutor's summation and the court's charge. We find that none of these claims are substantial and we therefore affirm.

I. The Evidence

The record, viewed in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972), reveals a scheme master-minded by Gerry and implemented by Perry and others which operated from January through April 1973 and which had as its purpose the illegal fixing of a specific type of harness race, the "superfecta." A "superfecta" race is a harness race in which there are generally eight horses competing. Its uniqueness does not lie in the way the race is run but in the way that the wagering is conducted on the race. There are basically three types of "superfecta" bets: a three dollar bet; an eighteen dollar bet; and, a seventy-two dollar bet. To win a three dollar bet the bettor must select the first four horses in the exact order in which they cross the finish line. In the eighteen dollar bet, also known as a "key box," the bettor selects four horses and designates one of the four to finish in first place. The bettor does not, however, have to select the exact finishing order of the other three horses he selects. In the seventy-two dollar bet, also known as a "box bet," the bettor must choose merely the first four horses; he does not have to select any order in which they finish.

A vice president of the Off Track Betting Corporation, Michael Shagan, testified as to the statistical probabilities of winning a "superfecta" bet. He explained that in an eight horse race there were 1,680 possible combinations of four horses finishing in an exact order in the first four positions. Therefore, the odds against winning on a three dollar bet were 1,680 to 1. If, however, a bettor could eliminate one or two horses from his consideration the odds would change dramatically. As Shagan testified, if a bettor were only to consider six horses rather than eight then on a three dollar bet the odds would be reduced from 1,680 to 1 to 360 to 1.

Viewed in another perspective, it would cost $5,040 to place three dollar bets on all possible combinations of four horses in an eight horse race. It would cost half of that amount or $2,520 to place three dollar bets on all possible combinations of four horses in a seven horse race and just $1,080 if only six horses are considered. Since in 1973 the average return for a winning "superfecta" ticket was $3,000, a bettor who could definitely eliminate one or two horses from consideration could afford to bet on all the possible combinations remaining and have a near mathematical certainty of winning more money than he spent on purchasing the wagering tickets.

The attempt to eliminate one or more horses from consideration in the "superfecta" betting formed the basis of the conspiracy exposed at the trial. Bribery of harness race drivers was the means by which the conspiracy was implemented.

The evidence showed that the appellant Gerry offered bribes to certain race drivers to finish in specified positions, usually in the last four places or "out of the money" in a particular "superfecta" race. Allen Cantor, a harness race driver who was named as a co-conspirator and who testified at trial under a grant of immunity, stated that on January 24, 1973 he had a discussion with the appellant Gerry near Roosevelt Raceway about the "superfecta" race to be run that evening in which he, Cantor, was scheduled to drive one of the horses. Cantor testified that Gerry asked him to "finish out of the super" and told him that if he did so Gerry would give him either a thousand dollars or a ticket on the winning combination. Cantor admitted having told Gerry he would prefer the thousand dollars and he also admitted that he had received $800 from Gerry on the next day, his horse having finished seventh in the "superfecta" race. Another harness race driver, Randolph Perry,*fn3 also testified to a conversation with Gerry which, though more equivocal than the Gerry-Cantor conversation related above, the jury could reasonably have inferred was an attempt by Gerry to bribe Randolph Perry to finish out of the first four positions.

Having offered bribes to one or more drivers to insure that their horses would be in specified positions, Gerry would then bet large sums of money covering all possible combinations in which those horses were in the appropriate positions. Though Gerry bought a large number of "superfecta" tickets himself, most of the actual placing of the bets was done by Gerry relaying the preferred combinations to other gamblers. One of the other gamblers to whom Gerry relayed the combinations was the appellant Perry.

Perry's relationship with Gerry and his role in the conspiracy was explained by Bruce Cussell, a former employee of Perry's who testified in behalf of the government.*fn4 Cussell, who was twenty-eight years old at the time of trial, had attended elementary school with Perry and had known Perry "off and on" his whole life. Beginning in February or March 1973 Perry paid Cussell two hundred dollars per week to perform certain services for him. As a daily routine Cussell would bring the New York Times, breakfast and a trotting sheet for the evening's races to Perry's house in Brooklyn where the two of them would wait a call from Gerry. At approximately 11:00 a.m. or noon Gerry would call and during the call Perry, using the trotting sheet Cussell had brought, would make a circle next to the dead horses, i.e., the ones that were not to finish in the first four positions, and make an "x" next to those that should be "keyed." Cussell testified that Perry had told him that he had fixed races with Gerry and that Gerry would contact the drivers and give them either one thousand dollars or a winning ticket.

Following his daily call from Gerry, Perry would, according to Cussell's testimony, call Michael Sherman*fn5 and Peter Vario*fn6 and relay to them the combinations he had received from Gerry. Perry would then give Cussell between $9,000 and $15,000 which was to be used to purchase tickets on the designated combinations. After purchasing the tickets at an Off Track Betting Office,*fn7 Cussell would hand the tickets over to Perry and then accompany him to the race track.

When the "superfecta" race had been run Perry would generally pass the winning tickets on to others to cash since persons cashing winning "superfecta" tickets over $900 are required to complete and verify an Internal Revenue Service form.*fn8 Occasionally, Gerry and Perry would cash tickets themselves. During the three and one-half months of the conspiracy, January through April of 1973, Gerry was responsible for having placed over one million dollars in bets which resulted in gross winnings of approximately two and one-quarter million dollars.

The defense attempted to establish that a good handicapper could do very well in "superfecta" betting and they called George Levy, President of Roosevelt Raceway, who testified that prior to any indication of wrongdoing he had suggested that the "superfecta" be terminated because he was afraid of what a good handicapper with ample funds could do. The defense also called racing experts who had either been present at or had viewed films of the races that had allegedly been "fixed." These experts testified that they had observed no wrongdoing on the part of the defendant drivers. None of the defendants testified.

II. Sufficiency of the Evidence

The recital of the evidence disposes of Gerry's first claim of error, that the evidence was insufficient. Moreover, Gerry's brief concedes that "viewed in the light most favorable to the ...

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