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United States v. Reitano

decided: December 8, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
ROCCO D. REITANO, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Western District of New York, David G. Larimer, Judge, convicting defendant of conducting an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2. Affirmed.

Kearse, Pratt, and Mahoney, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Defendant Rocco D. Reitano appeals from a judgment of conviction entered in the United States District Court for the Western District of New York following a jury trial before David G. Larimer, Judge, convicting him of conducting an illegal gambling business on May 10, 1987, in violation of 18 U.S.C. §§ 1955 and 2 (1982). Reitano was sentenced to a term of imprisonment of one year and one day, a fine of $2,500, and a special penalty assessment of $50. On appeal, he contends principally that the trial evidence was insufficient to establish that his business "ha[d] a gross revenue of $2,000 in any single day," id. § l955(b)(1), and hence to establish that § 1955 was applicable to him. We disagree and affirm the judgment of the district court.

I. BACKGROUND

Reitano was charged with conducting an illegal gambling business in a Rochester, New York club on May 10, 1987. At trial the government presented testimony describing two blackjack games that Reitano offered his patrons in the early morning hours of May 10. During that period, Rochester policemen conducted two brief inspections of the club, the first at about 1:00 a.m. and the second just before 3:00 a.m. Because a buzzer sounded in the club to warn those inside of the inspections, any gambling within was halted during the police visits. Immediately after the first inspection was concluded, the first blackjack game began. One of Reitano's doormen testified that, except for a 10-minute interruption due to the second police inspection, this game ran continuously until at least the time he went off duty at about 7:00 a.m. A second blackjack game was conducted for some 15-30 minutes; this game was halted by the second police inspection and never resumed.

From 2 a.m. to 3:10 a.m. on May 10, Federal Bureau of Investigation Special Agent Michael Glass attended Reitano's club in an undercover capacity. Glass testified at trial as an expert on gambling, as an observer of the first blackjack game, and as a participant in the second. He characterized the type of blackjack played at Reitano's club on May 10 as "rough and tumble," a form in which players are pitted against each other rather than, as in casino or Las Vegas-style blackjack, against the gambling establishment (the "house").

In rough-and-tumble blackjack, the players at a table take turns at being the "bank," i.e., dealing and putting up the money against which the other players bet. If the dealer wins a hand, the wagers belong to him and not to the house. The house nonetheless has a stake in each hand since it takes a percentage (the "rake") from the bets in a given hand. The house stations an employee (the "houseman") at each table; the houseman, though he neither deals nor bets, keeps the game running efficiently, and he collects the rake.

On May 10, Reitano's housemen controlled the two blackjack games. In each, the houseman started the shuffle and enlisted one player to be the bank and thus to become the dealer. The houseman inquired how much that player wished to wager, gave him the cards to deal, and asked other players in turn if any of them wanted to play against the dealer for the entire amount in the bank. When one player answered affirmatively, creating a one-on-one game, the houseman collected the wagers of both the dealer and his opponent, removed the house's rake - -five percent - -from these wagers, and announced how much remained in the pot. When the hand was complete, the houseman paid the pot to the winner, who could then choose whether to play another hand, acting as the bank, or to relinquish the right to deal. If no single player was willing to place a bet against the dealer for the entire bank, then all the table's players were entitled to play the hand, placing bets of any amount against the dealer, provided the total wagers did not exceed the amount in the bank. During such a table-against-the-bank game, the bets remained in front of the players, while the houseman held the dealer's bank money. On the bank player's deal of the cards, whenever an opponent's card combination showed a total exceeding 21, the houseman took that player's cards and the money he had bet, adding that money to the bank; when any of the players beat the dealer, the houseman paid him out of the money in the bank. When the hand was finished, the houseman took the house's five percent rake of the money remaining in the bank and offered the dealer the option of playing as bank again or taking his money. The cycle was then renewed, either with the same player as the bank or with a new player stepping into that role.

As to the amount of the bets placed in Reitano's club on May 10, agent Glass "estimated conservatively" that in the first game about 10 hands an hour were played and the average amount per hand wagered against the dealer was between $240 and $250. Glass thus concluded that the dealer's opponents bet a total of approximately $2,400 in the first game during the roughly one hour he was there. One of Reitano's housemen, who observed the first game for a period prior to supervising the second game, estimated that the players bet between $100 and $200 per hand and that 8-10 hands were played each hour. Both witnesses' estimates as to the amounts bet in the second blackjack game were considerably lower.

Reitano was found guilty of violating § 1955 and was sentenced as indicated above.

II. DISCUSSION

On appeal, Reitano contends principally that the amounts wagered could not, as a matter of law, define his club's gross revenue because (a) the wagers were between customers and hence no part should be considered revenue to the club, or (b) only the house's rake from the amounts wagered could be considered revenue to the club, or (c) only amounts wagered by customers other than the bank player could properly be considered. He also contends the government ...


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