Appeal from judgments of conviction and sentences on trial to the jury in the United States District Court for the Northern District of New York, Lloyd F. MacMahon, Judge,*fn* for violations of the federal gambling statute, 18 U.S.C. § 1955 and related offenses.
Friendly, Smith and Mulligan, Circuit Judges.
Charles P. Grezo, Joseph T. D'Agostino, Samuel L. Ebare, and Richard Michael Beach appeal from a judgment of conviction entered by the United States District Court for the Northern District of New York, Lloyd F. MacMahon, Judge, having been found guilty, after a jury trial, of violating the federal gambling statute, 18 U.S.C. § 1955. In addition, D'Agostino appeals from a conviction for conspiracy to violate § 1955,*fn1 as well as a conviction for violation of 18 U.S.C. §§ 1952 and 2.*fn2
Raymond Czerwinski and Louis M. Camerano were convicted of the substantive offense of conducting an illegal gambling business in violation of 18 U.S.C. § 1955, as well as conspiracy to violate § 1955 and violation of 18 U.S.C. §§ 1952 and 2, respectively. They were subsequently placed on probation, and were not fined. They have not appealed their convictions.
Grezo and D'Agostino were sentenced to six months' imprisonment and a $5,000 fine. Ebare and Beach were each sentenced to a prison term of one year and one day, Ebare also receiving a fine of $5,000.
On this appeal, Grezo, Beach and Ebare argue that the government failed to present sufficient evidence to warrant a finding that they conducted, financed, managed, supervised, directed, or owned all or part of the D'Agostino bookmaking operation, within the terms of 18 U.S.C. § 1955. They, with D'Agostino, claim further that the government failed to demonstrate the involvement of five or more persons, as required by the statute.*fn3 Appellant Grezo asserts that the trial court incorrectly charged the jury with respect to the definition of a "conductor" of a bookmaking business, and that it failed to deliver a charge with respect to Grezo's stated theory of defense. Finally, appellant D'Agostino argues that the government's proof was insufficient to demonstrate a violation of 18 U.S.C. §§ 1952 and 2.*fn4
We have examined the record, and find neither error on the part of the trial court, nor insufficiency in the government's proof. Accordingly we affirm the convictions as to each of the appellants.
The government's case at trial was based largely on a series of recorded telephone calls intercepted from the home telephone of appellant D'Agostino and a telephone used by appellant Ebare. The interception of these communications was authorized by Judge Edmund Port, pursuant to 18 U.S.C. § 2510 et seq., and lasted in relevant part from December 21, 1974 to January 13, 1975. In addition, the government relied on the testimony of an expert witness, FBI Special Agent William L. Holmes, who testified as to the content and meaning of the recorded conversations. Others who testified for the government included James D. Keller, a Syracuse resident and regular customer of Raymond Czerwinski; James Colloca and Leon Cook, unindicted co-conspirators, who testified that they accepted wagers from customers and passed them along to the D'Agostino book; Lawrence Eppolito, who rented Ebare an apartment which was apparently used to conduct the bookmaking operation; FBI agents who carried out physical surveillance of the principals in this case; and a number of bettors who were customers of the D'Agostino book.
The appellants did not testify in their own behalf, nor did they call any witnesses.
At trial, the government sought to demonstrate that D'Agostino was the central manager of a bookmaking operation which was financed and directed by Ebare. Beach was said to be a collector for the organization; Czerwinski, Cook and Colloca, "writers"; and Grezo, a layoff bookmaker. Camerano was described as the source of the betting "line" used by the operation.
The mechanics of the bookmaker's art have been well reviewed in the case reports. See, e. g., United States v. Box, 530 F.2d 1258, 1260-62 (5th Cir. 1976); United States v. Joseph, 519 F.2d 1068, 1070-71 (5th Cir. 1975), cert. denied, 424 U.S. 909, 47 L. Ed. 2d 312, 96 S. Ct. 1103 (1976); United States v. Thomas, 508 F.2d 1200, 1202 n. 2 (8th Cir. 1974), cert. denied, 421 U.S. 947, 95 S. Ct. 1677, 44 L. Ed. 2d 100 (1975); United States v. Schaefer, 510 F.2d 1307, 1311 (8th Cir. 1974), cert. denied, 421 U.S. 978, 44 L. Ed. 2d 470, 95 S. Ct. 1980 (1975). Accordingly, a brief sketch of the matter is sufficient for our purposes.
A bookmaker accepts wagers, often on the outcome of sporting events. His profit, however, does not come from winning bets. Rather, the bookmaker charges losing bettors a "brokerage" fee, called in the trade "vigorish" or "juice," which is a fixed percentage of the amount bet.
The financial risk to the bookmaker is minimized when the total amount bet on both sides of a contest is equal. Then losing bettors, in effect, pay the winners, and all of the "juice" ...