Appeal from judgment entered in the United States District Court for the Western District of New York, Honorable John T. Curtin, Chief Judge, following a jury verdict convicting appellant of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955 (1970), and destruction of flash paper to prevent its seizure by FBI agents, in violation of 18 U.S.C. § 2232(1970). Affirmed in part; reversed in part.
Moore, Feinberg and Gurfein, Circuit Judges.
Richard Todaro appeals from a judgment entered upon a jury verdict, convicting him of violating 18 U.S.C. § 1955 (1970) (conducting an illegal gambling business) and 18 U.S.C. § 2232 (1970) (unlawful destruction of flash paper to prevent its seizure by FBI agents).*fn1
Apparently in early 1972 the Government conducted a substantial surveillance operation to ferret out what it believed was a major gambling operation in the Buffalo, New York area. The focal points were the Riverside News Stand, the Kenmore News Shop and an apartment on Ontario Street, Buffalo. The principal suspects were Anthony Castellani ("Anthony"), his father, Stephen Castellani ("Stephen"), Richard Giglia (Anthony's cousin), Sam Giglia and a John Zak. Anthony and Stephen were bookmakers and their activities covered horses (racetrack), football and basketball. Richard Giglia, Sam Giglia, John Zak and others accepted bets for Anthony and Stephen at various locations.
On September 8, 1972, the five principal suspects named above, who may be called the operators of the business and who actually took the bets, pleaded guilty to informations charging them with transmitting gambling information over the telephone, in violation of 18 U.S.C. § 1084(a) (1970).*fn2 They all received comparatively trivial sentences and the jail terms for all were suspended.*fn3
The indictment against appellant Todaro, charging him with (1) conspiracy to engage in an illegal gambling business, in violation of 18 U.S.C. § 371 (1970) (Count I); (2) conducting an illegal gambling business, in violation of 18 U.S.C. § 1955 (1970) (Count II); and (3) destruction of property which was the subject of a search warrant, in violation of 18 U.S.C. § 2232 (Count III), was not issued until February 6, 1973.
More than three years later, Todaro was put on trial (April 20, 1976). The record is devoid of any explanation for this hiatus. His participation in the Castellanis' bookmaking business was negligible. It consisted entirely of his furnishing, by means of nine or ten telephone calls, over some twelve days in February 1972, "line" information to the actual bookmakers with respect to a predicted point spread between various basketball teams about to enter the arena.*fn4
The chief witnesses for the Government were the Castellanis, who, having obtained "immunity" from the Government, felt free to disclose the manner of their operations. As in Stephen's opinion he was "one of the best" line makers in the business, he more than willingly disclosed how he made up his line, i.e., information gleaned from sports papers, radio announcements, handicappers, others with whom he talked and, of course, his own judgment.
The trial as presented by the Government was scarcely a trial against Todaro - rather as above mentioned, it was an expose of the Castellanis by the Castellanis. Reading the record one would gather that they were the defendants. Inadequate proof was offered that Todaro was one who "conducts, finances, manages, supervises, directs or owns all or part of an illegal gambling business". 18 U.S.C. § 1955(a).
Stephen, on whom the Government relied, was emphatic in establishing that Todaro was not in this category. Witness the following question and answers (App. 511):
"Q. * * * Mr. Castellani, did Richard Todaro have anything to do with your bookmaking operation whatsoever?
Q. Did he have anything to do with your son's ...