UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: October 7, 1977.
UNITED STATES OF AMERICA, APPELLEE,
CHARLES RUSSO, APPELLANT
Appeal from a judgment of conviction under 18 U.S.C. § 371 and 18 U.S.C. § 1955 entered by the District Court for the Western District of New York, Curtin, J., after a jury trial. Affirmed.
Lumbard, Oakes and Meskill, Circuit Judges.
LUMBARD, Circuit Judge:
Charles Russo appeals from a jury verdict in the Western District of New York convicting him under 18 U.S.C. § 371 (1970) of conspiring to violate 18 U.S.C. § 1955 (1970), which makes it a federal crime to conduct, finance, manage, supervise, direct, or own a gambling business which violates state law, involves five or more people, and either remains in substantially continuous operation for more than thirty days or has a gross revenue of $2,000 in any single day. He claims that neither the duration of the gambling operation in which he was involved nor its gross revenue were properly before the jury. Specifically, he charges that, although a duration of greater than thirty days was properly charged in the indictment, the lack of evidence showing such a duration required that the question be removed from the jury's consideration. On the other hand, the appellant claims that irrespective of the evidence adduced at trial the jury could not consider the question of gross revenues because duration alone was charged in the indictment. We find that there was ample evidence that Russo and others named in the indictment conspired to conduct a gambling business contrary to New York law involving five or more persons and which was planned both to remain in operation for more than thirty days and to produce revenue of $2,000 in any single day. Accordingly, we affirm the conviction.
The evidence at trial showed that appellant Russo, together with Joseph Zito and Paul Comfort, began operating a professional dice game on Jay Street in Rochester, New York in January of 1973. In addition to these three, the game employed Joe Salerno, Frank Ferrara, Joe Comfort, and a man named Walter. Business was bad, however, and the game was forced to close in March of 1973.
About this time Zito became a government informer in exchange for sentencing concessions given him in connection with a prior conviction in December of 1972. In late March of 1973 Zito introduced an undercover FBI agent named Brana to the appellant as a new source of funds for the game. In exchange for $5,000 from Brana to finance the operation, the appellant was to provide the location and personnel and give Brana 70% of the net profits. The appellant represented that he already had the location and workers available for their use.
In early April, Zito, Brana, and the appellant met to consider arrangements for the gambling operations. At these discussions the appellant altered the terms of the agreement to include another backer (who was to contribute another $5,000) and to change the location for the game from the original Jay Street building to a new place on Webster Street. The dice game operated on Webster Street according to the plan from April 9 through April 12 of 1973, at which time it closed because of a dispute among the parties. During that time, it had a staff which included all of the former workers at the Jay Street operation and each night over $30,000 was wagered. Shortly after the game's termination, appellant Russo, Paul Comfort and two others*fn1 were indicted in two counts for conspiracy to violate and actual violation of 18 U.S.C. § 1955.
Following a trial before Judge Curtin and a jury in which he presented no defense and did not take the stand, Russo was acquitted of the substantive offense but convicted of conspiring to violate § 1955. He was sentenced to eighteen months in prison. Russo's co-defendants at trial, Salvatore Gingello and Salvatore Russotti, were acquitted on both counts.
Since Russo was convicted of conspiracy, his complaint that the trial court should have ruled as a matter of law that the government had failed to prove that the game was in substantially continuous operation for more than thirty days is entirely without merit. The jury was only required to find that Russo conspired to conduct the illegal gambling operation for more than thirty days.*fn2 Further, there was evidence that in fact the dice game was conducted from late January to early March and was resumed at a different location from April 9 to April 12. The trial court, therefore, was clearly correct in declining to rule as Russo requested.
Russo's complaint that it was reversible error to allow the jury to consider testimony regarding the gross revenues of the gambling operation is equally without merit. Under the terms of the conspiracy statute and § 1955, the government had to show that the game was designed either to operate for more than thirty days or to produce receipts of $2,000 in a single day. Consequently, evidence concerning the gross revenues of the Webster Street gambling operation was highly relevant to both counts of the indictment. From this evidence, the jury could reasonably conclude that the game received revenues of more than $30,000 in each of its days of operation.
Nor is there any substance to Russo's claim that he was misled. The obvious purpose of any gambling enterprise is to attract gross receipts and so it is not surprising that the government would attempt to show that Russo's conspiracy contemplated producing substantial revenues. In its opening statement the government promised that it would produce testimony that the game produced revenues of more than $30,000 per night.*fn3 No objection was made to this evidence, either when it was promised at the beginning of trial or later when it was actually produced. Thus, the belated claim that the defendant was misled is frivolous.
Lastly, we reject Russo's claim that the wording of the indictment limited the prosecution to duration alone in proving the jurisdictional elements of § 1955. The reference to time in the conspiracy count related to the period of existence of the conspiracy and not to how long the conspirators contemplated the game would continue.*fn4 In any event, the evidence of gross receipts was so relevant to the prosecution under § 1955 that it could not properly have been excluded even on the narrowest interpretation of the indictment.