in Antigua, where gambling is legal, violates 18 U.S.C. § 1084).
Here, bookmaking, the predicate state offense, is illegal in New
York. Accordingly, dismissal on this ground should be DENIED.
United States v. Truesdale, 152 F.3d 443 (5th Cir. 1998), on
which Defendants rely as holding that the transmission of a bet
to a foreign country where gambling is permitted renders the bet
legal regardless of whether gambling is legal in the state of the
bet's origination, is readily distinguishable. In Truesdale,
the court reversed a denial of post-verdict judgment of acquittal
on the ground that there was insufficient evidence to support the
predicate state offense necessary to uphold the guilty verdict
under 18 U.S.C. § 1955. Despite the existence of evidence
supporting other predicate state gambling offenses, as no other
such offense was alleged in the indictment, the case was not
tried nor was the jury instructed on another uncharged theory
and, thus, the court refused to affirm. Also, Truesdale was an
appeal following a trial and verdict which have not occurred in
the instant case. Moreover, whether the Wagering Paraphernalia
Act was violated by the placing of bets from a state in which
gambling was legal to a off-shore gambling enterprise located
where gambling was legal was not an issue before the court.
Further, New York Supreme Court recently held that, under New
York law, if a gambler physically is located in New York when the
bet is placed, then New York is the location where the gambling
occurred. World Interactive Gaming Corporation, supra, at *5.
At issue in that case was whether bets placed over the internet
by gamblers (players) who were physically within New York to a
gambling enterprise located in Antigua where gambling is legal
constituted gambling as defined under New York Penal Law Article
225. The court, citing New York Penal Law § 225.00(2), held the
act of placing the bet and transmitting the betting information
from New York, even to an off-shore gambling facility located in
a foreign jurisdiction where gambling is legal, constitutes
gambling activity within New York state. Specifically, the court
stated, "[i]t is irrelevant that gambling is legal in Antigua.
The act of entering the bet and transmitting the information from
New York . . . is adequate to constitute gambling activity within
the New York state." World Interactive Gaming, supra, at *5.
Thus, even if, as Defendants posit, Greenman Affidavit at 11-13;
Masterana Brief at 5, acceptance of bets and providing "line"
information is legal in the Dominican Republic, where it is
alleged Defendants directed their customers' bets to be accepted,
the Indictment nevertheless states an offense. World Interactive
Gaming Corp., supra, at *5 (finding gambling conducted over the
internet from a state where gambling is illegal to a foreign
country where gambling is legal "indistinguishable" from any
other form gambling as the transmission of information into a
foreign country is subject to both the Wire Act and Travel Act).
As the Indictment properly charges Defendants with illegal
bookmaking in the state from which the foreign telephone calls
emanated, Truesdale is inapplicable on its facts.
Nor will Defendants be exposed to double jeopardy in violation
of the Fifth Amendment by being charged with both aiding and
betting as well as conspiring to commit the substantive offenses.
"`Conspiracy to commit a substantive offense and aiding and
abetting the commission of the same offense constitute separate
and distinct crimes.'" Virella v. United States, 750 F. Supp. 111,
116 (S.D.N.Y.) (quoting United States v. Tropiano,
418 F.2d 1069, 1083 (2d Cir. 1969)), cert. denied, 397 U.S. 1021,
90 S.Ct. 1262, 25 L.Ed.2d 530 (1970) (citing Nye & Nissen v.
United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949)).
Double jeopardy thus poses no bar to a conviction of both
conspiracy and aiding and abetting the substantive count so long
as proof of different elements is required. Id. While a
conspiracy under 18 U.S.C. § 371 requires proof of an unlawful
agreement between two or more persons to commit an offence
against the United States, United States v. Rubin,
844 F.2d 979, 983-84 (2d Cir. 1988) (citing United States v. Wardy,
777 F.2d 101, 107 (2d Cir. 1985), cert. denied, 475 U.S. 1053, 106
S.Ct. 1280, 89 L.Ed.2d 587 (1986)), conviction for aiding and
abetting an illegal gambling operation does not. Rather, the
terms "aiding" and "abetting" charge a defendant as "`a principal
when he consciously shares in a criminal act regardless of the
existence of a conspiracy.'" Virella, supra, at 116-17 (quoting
Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98
L.Ed. 435 (1954)). As conspiracy represents a separate crime,
conviction based on aiding and abetting the substantive offenses
as an object of this conspiracy is not constitutionally barred.
United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir. 1994)
("Conspiracy is a crime that is separate and distinct from the
substantive offense that is the object of the conspiracy."),
cert. denied, 513 U.S. 879, 115 S.Ct. 211, 130 L.Ed.2d 140
(1994). Accordingly, Defendants' claim that, if convicted as
charged, they will be subjected to double jeopardy is without
Nor is there any merit to Defendant Masterana's contention,
Masterana Brief at 3, ¶¶ E and F, that without a more detailed
allegation as to precisely on which gambling offense under New
York Penal Law Art. 225 the Indictment is based, Defendants are
exposed to double jeopardy as conviction is sought only under
federal law. Regardless of what particular gambling related
conduct, proscribed by New York law, Defendants may be determined
to have committed, they are at risk of being convicted of
conspiring and violating only 18 U.S.C. § 1084, 1952 and 1955.
For example, should Defendant Masterana ultimately be convicted
under both 18 U.S.C. § 1952 and 1955, even if the relevant
predicate New York offense for each conviction is determined to
be bookmaking, Masterana will not stand convicted of two counts
of bookmaking under New York law but, rather, only three separate
federal offenses — conspiracy and violation of the Wire Act and
Travel Act. Conviction for violating 18 U.S.C. § 1084 does not
depend on commission of a predicate state offense. Defendants
thus do not face double jeopardy under the Indictment even absent
The court finds that under relevant New York law, the conduct
with which Defendant are charged violates New York's laws against
gambling. As such, Defendants' motion to dismiss the Indictment
as insufficient to charge an offense should be DENIED.
2. Suppression of Witness Testimony
Defendant Kaczowski also seeks to suppress the testimony of any
witness who was offered something of value, including promises of
leniency or reduced sentencing, in exchange for the testimony on
the basis that such testimony would be in violation of
18 U.S.C. § 201. Kaczowski Memorandum, ¶ 11. The Government maintains that
such motion is a request based on United States v. Singleton,
144 F.3d 1343 (10th Cir. 1998) ("Singleton I") which has since
been vacated, not followed by other jurisdictions and, as such,
is without merit. Government's Memorandum at 12.
Singleton I is no longer the law in the Tenth Circuit, having
since been vacated and rejected by the Tenth Circuit sitting
en banc. United States v. Singleton, 165 F.3d 1297 (10th Cir.),
cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775
(1999) ("Singleton II"). Although the Second Circuit has yet to
consider this issue in a published opinion,*fn7 every circuit
that has considered a contention based on Singleton I, as
advanced by Kaczowski, has rejected it. See, e.g., United States
v. Condon, 170 F.3d 687, 688-89 (7th Cir. 1999); United States
v. Johnson, 169 F.3d 1092, 1097-98 (8th Cir. 1999); United
States v. Lowery, 166 F.3d 1119, 1123-24 (11th Cir. 1999);
United States v. Ramsey, 165 F.3d 980, 987-91 (D.C.Cir. 1999);
United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998);
United States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998),
cert. denied, 526 U.S. 1045, 119 S.Ct. 1348, 143 L.Ed.2d 511
(1999). Further, to date, no district court within this circuit
has agreed with Singleton I. See, e.g., United States v.
Jennings 1998 WL 865617, *6 (N.D.N.Y. Dec. 8, 1998);
Cancel-Hernandez v. United States, 1998 WL 846824 (E.D.N Y
Oct. 5, 1998); United States v. Szur, 1998 WL 661484 (S.D.N Y
Sept.24, 1998); United States v. Nieves, 1998 WL 740835
(D.Conn. Oct. 13, 1998).
Accordingly, Kaczowski's motion to suppress all testimony from
any witness who may have been offered anything of value,
including a promise of leniency or reduced sentence, should be
3. Suppression of Evidence Obtained Through Electronic
Defendant Kaczowski challenges the electronic surveillance
orders issued pursuant to 18 U.S.C. § 2518 by Judge Arcara on
January 27, 1996 and by Judge William M. Skretny on February 28,
1996 ("the Intercept Orders"). Greenman Affidavit at 13. Both
orders authorize the interception of conversations over six
telephone lines originating from the office located at Suite 111.
Id. at 14.