*4 quittеd charges on all jury. Before BALDOCK and remaining defendants, seven appellants McWILLIAMS, Judges, Circuit here, suffered convictions on the counts *, PHILLIPS Judge. District depicted in the chart below: CHARGES AND COUNTS OF CONVICTION 18 18 26 26 U.S.C. U.S.C. U.S.C. U.S.C. U.S.C.
§ § § § § Aaron Mosko 2,3 1Ct. 8,9 Cts. Cts. Ct. 10 Phil Pinelli 6,7 11,12 Ct. Cts. Cts. Ct. 13 David Pinelli 1Ct. Ct. 15 14Ct. Burbidge William 1Ct. 16,17 Ct. 18 Cts. Martin Mosko 28Ct.
Thomas Gottone Ct. 1 27Ct.
Robert Sheehan Ct. 1 Appellants have raised numerous issues mission of non-evidentiary materials to the appeal. The principal (1) issues involve: jury during deliberations; (4) the admission challenges to the sufficiency of the evi- expert of gambling testimony offered dence by (2) various appellants; constitu- the government; (5) the trial court’s denial tional challenges to 18 U.S.C. 1955 and of appellants’ to suppress motions all evi- the applicable statutes; gambling Colorado dence obtained as a result of a court-autho- (3) the trial court’s denial of a mistrial wiretap; rized the trial court’s deni- motion arising out of the inadvertent sub- al of severance motions made two defen- *The PHILLIPS, Honorable LAYN R. 1. This misdemeanor offense was instructed Judge States District for the upon Western District of aas lesser included crime of U.S.C. Oklahoma, sitting by designation. § 7201. m participants of the of each to the roles government’s close dants question. His activity in abundant there was find that case. elec- on review based opinions were a reasonable which from evidence evidence. and search guilty of tronic surveillance the defendants find could convictеd, rely on He did not 1, p. they [Supp. Vol. offenses testimony in the error privy reversible find no further and was af- Accordingly, we At outset case. of this [Id.]. record bettor witnesses. appellants. all seven basic some testimony, explained the convictions Holmes firm helpful terminology which will EVIDENCE THE OF I. SUFFICIENCY appel- of each the roles explaining suffi upon the based lants. challenge In a affirm evidence, we must ciency of the spread” “point described Holmes record if there of conviction judgment attracting having purpose “line” as trier- a rational allow which would side betting on each equal amounts guilty of to find of-fact line on change the Bookmakers contest. indictment. Jackson charged crimes betting on the attract game to particular Virginia, six” minus of “Denver A line team. other (1979). More 61 L.Ed.2d points and by six is favored means Denver the evidence view over, must this Court Denver, must win Denver to win a bet govern most light favorable *5 “vig” The term points. more or by seven States, U.S. v. United ment. Glasser percent com- ten represents a “vigorish” 457, 469, L.Ed. 80, bets, com- losing which charged to mission Hooks, (1942); privilege for the the bookmaker pensates denied, cert. Cir.), 1526, 1529-31 words, a $100 In other placing bets. of L.Ed.2d S.Ct. U.S. $110, of payment require losing bet would conclude light, we in that (1986). Viewed Ac- “vig”. a $10 includes payment which and evidence, circum direct both theo- Holmes, a bookmaker to cording test. stantial, satisfies same amount аccept the retically strives to fo- at trial evidence government’s The contest, or balance aof each side of bets on gambling activities appellants’ on cused profit. “vig” as books, take and December, 1984. through September from concept of explained Holmes Agent testimony of consisted evidence The allows a that which as wagering” “lay-off witnesses, including numer- thirty-six wagers he of rid get “to bookmaker of witnesses, the introduction bettor ous handle financially able to feels he tele- recordings of tape hundred several financial loss great of the risk reduce pursuant and intercepted conversations phone large sums of surveillance, off on having pay to electronic to court-authorized The pp. [Supp. 16-25]. to Vol. pursuant money.” seized documentary evidence wagering was lay-off example of following December on executed warrants search testimony: wiretap, during his of by Holmes provided the termination after on of agent wagers FBI X has testimony expert Bookmaker Suppose defendants team B. $1,000 various on by the A and played $1,500 roles team on excess gambling operation. lay-off $500 X would Bookmaker team A Y. If Bookmaker A with on team case in this surveillance electronic The $1,000 collect X would wins, Bookmaker twenty-four approximately for active B, plus the team bet Deсember, who 1984. from those days November $1,100. Bookmaker of vig total wiretap evidence 10% government’s The wager from lay-off indicated his $500 case collect in this X would records seized the total accepted wa- make Y, question would business Bookmaker this $2,300,000 $1,600. From November excess collected gers amount December, his bettors pay 608-611]. 1984. have amount, [Exs. he would Bookmak- A. $1,500 on team had bet Holmes Agent William Special profit $100 make a thus Xer would testified Investigation Bureau Federal money. If own any of his risking without government for the expert witness anas X had agreed Bookmaker not laid-off his excess to line movements on the SMU-Ar- wagers won, and team A had then he game. 180-A, kansas p. Vol. [Ex. 116]. $1,100 would have collected from the losers government taped also introduced a ($1,000 vig) pay and had 10% out + conversation between Mosko and Thomas $1,500 to the winners for a net loss of $400. Gottone in which Mosko advised Gottone of [Supp. 1, pp. Vol. As will be 16-25]. the lines games. 396-A, on various [Ex. shown, concept lay-off wagering 23], p. Vol. played a central role in the pros- successful Also introduced trial was a series of ecution appellants. taped between conversations Mosko and Viewing the light evidence in the most Robert Sheehan in which Sheehan asked government, must, favorable to the as we “alright”, Mosko if he was to which Mosko summary brief of the evidence pertaining rеsponded by asking Sheehan to see what appellant each is set forth below:2 “get he could Miami and Seattle at.” [Ex. 368-A, 14, p. Vol.
A. Aaron Mosko Sheehan later 26]. called reporting back the lines on the Miami and The evidence in this case demonstrated games Seattle appeared Mosko who then that defendant Aaron Mosko was in the request place wagers Sheehan to on the accepting business of wagers sporting games two for him. Additional government’s events. The analysis [M]. taped used in conversations introduced reconstructing gam- bling activity government demonstrated Aaron consisted Aaron Mosko dis- $1,000,000 accepted Mosko over in wagers cussing with bettors the “lay- mechanics of December, November and ing-off” alluding [Ex. to the fact that he also introduced evi- lay-off made 530-A, bets. 11, pp. Vol. [Ex. dence, including wiretap numerous conver- -34; 5-33 to 12-56; Ex. p. Vol. Ex. sations, which demonstrated that defen- 18, p. Vol. 12-61]. dant *6 exchanged Aaron Mosko line informa- Agent Holmes, FBI government’s ex- tion with various placed defendants and pert, testified that Mosko was in the busi- lay-off wagers with other bookmakers. accepting ness of sports wagering activity The evidence further established that cer- and that Martin Mosko was at least a tain placed lay-off defendants wagers with “phoneman” for accept- Aaron Mosko who other bookmakers on behalf оf Aaron Mos- wagers ed from bettors relayed and them 384-A, 14, 20; ko. p. 172-A, Vol. Ex. [Ex. to Aaron Mosko.3 He described 9, 115; individuals p. 180-A, Vol. 9, Ex. p. 116; Vol. identified as 616, 18, 12-56; 617, Ex. Sheehan and p. 18, “Denny” Vol. Ex. Vol. 12-61; p. 368-A, as 36; Ex. “beards” for p. Vol. Aaron Mosko placed Ex. who wagers with 609]. other bookmakers on Mosko’s behalf.4 He further described Thomas Got- Taped conversations between Aaron Mos- tone lay-off as a source exchanged who ko and Phil played Pinelli were trial wagering activity with Aaron Mosko. He gave which Pinelli Mosko the line on nu- opined further that games. 384-A, Aaron merous Mosko and Phil 20; Vol. p. [Ex. 172-A, engaged Ex. Pinelli were p. Vol. also business relation- 115]. heard ship; a conversation between Phil that Pinelli Pinelli advised Mosko as to what and Aaron Mosko where Mosko and Pinelli lay-off, and furnished Mosko line Gottone, appellants, Burbidge 2.Two and do not been place summarized in order their roles in challenge sufficiency gambling operation of the evidence proper perspective. appeal. separate appeal Gottone did file a case, 3. Under the "phonemen" evidence in this Instead, brief. join he filed a motion to were individuals telephone, who answered the appellant brief of grant- Phil which was accepted wagers and disseminated line informa- brief, September ed on ever, 1988. Pinelli’s how- tion on behalf of bookmakers. challenge does not raisе to the sufficien- cy pertains of the evidence it as to Gottone. person 4. A places lay-off “beard” is a who wa- Despite their failure appeal, to raise the issue on gers with a bookmaker on behalf of another the evidence regarding these two has bookmaker. my up ever Wil- so from get Pinelli would changes that know, they can’t twenty, you -32], twenty to say pp. 9-31 Burbidge. liam [Yol. 12, p. 345-A, Vol. they are.” say [Ex. what line information B. Phil Pinelli received Pinelli Phil 115]. tele- by placing activities his govern- by the introduced The evidence 154-A; Vegas. to Las [Ex. Pinelli calls Phil phone that defendant ment established 278-A], 92; wagers Ex. accepting p. Vol. the business was in Specifically, sporting events. in his that testified Agent Holmes FBI over accepted Phil Pinelli that indicated in the business Pinelli opinion Phil and during November wagers $800,000 in activity and wagering sports accepting p. 9- December, Vol. 1984. [Ex. assisted partner Pinelli was David 88]. line, and setting wagers, accepting Phil conversa- taped consisting Evidence 15, p. policy. 9-7]. deciding lay-off [Vol. his brother Phil Pinelli between tions en- Pinelli was opined that further Holmes mutuality of demonstrated Pinelli David relationship with Wil- a business gaged wa- in their brothers the two risk between line infor- they shared Burbidge where liam 341-A, p. Vol. activities, gering [Ex. 15, p. 9-24]. mation. [Vol. had mutual brothers 114], indicated 12, p. 259-A, Vol. interests. [Ex. financial Burbidge C. William conver- telephone Further, wiretapped against defen- introduced The evidenсe ac- Pinelli that Phil demonstrated sations that he Burbidge established William dant wagers from, placed wagers cepted sports accepting the business inwas with, other bookmakers. included This evidence activity. wagering taped instance, from conversations For witnesses bettor various testimony of evi- it was by the introduced wagers with they placed that testified from wagers accepted Pinelli dent that Ralph wagers with placed Burbidge, or Mosko, and bookmaker, Aaron another the outcome settled Lackey and later Lack- Ralph telephone placed bets 9, pp. Burbidge. wagers with those 4-87; Ex. 10, p. 192-A, Vol. ey. [Ex. Additionally, an 69-72], 9, pp. 43-46; Vol. govern- particular, 10, p. 4-87]. Vol. Bowers, Joseph analyst, handwriting be- FBI taped conversation introduced ment probability high awas Phil Pinelli there testified Mosko Aaron tween he “needed” identified Pinelli told documents Mosko Ralph games. [Ex. the residence on various amounts from certain seized records *7 tele- In another 10, handwriting of Bur- 192-A, p. 4-87]. Vol. Lackey contained by introduced 100, 14, pp. conversation phone 107]. Lackey. bidge and [Vol. person a and Pinelli government between telephone wiretap form of in the Evidence he Doc that “Doc”, told Pinelli as identified several on that demonstrated conversations six bookmakers or five “about had informa- line Burbidge discussed occasions them their, Aaron and like they unload particularly dis- Phil Pinelli with tion me.” on shit [Ex. all their they load guys, use on cer- they would points cussed what 12, p. 320-A, Vol. 112]. 318-A, p. Vol. 111]. games. tain [Ex. govern- by introduced evidence The had Phil wiretap conversation An additional kept Pinelli Phil indicated ment also Lackey. Ralph wagers with placing Pinelli way as to a such records his 9, p. 103-A, Vol. 13]. [Ex. in- meaning. For true their obfuscate testified Holmes expert FBI indicates records stance, of seized a review Burbidge (1) opinion: by identified accounts of his that none ac- wagering sports accepting business by entries names, rather but recognizable who phoneman a (2) Lackey was tivity; More- 10], “PB”. “K” and [Ex. such in- line disseminated wagers accepted taped introduced over, (3) Bur- Burbidge; on behalf formation Aaron Pinelli between conversation rela- a business Pinelli had bidge and to Mosko explained Pinelli Mosko informa- line they shared tionship where manner in a certain kept his books he tion; (4) Burbidge sometimes as a right acted call him now.” A few minutes later Pinelli; beard for Burbidge some- Sheehan called again Mosko and informed provided times line information for Aaron “[y]ou got 249-A, Mosko that it.” [Ex. 15, pp. -25], Mosko. 9-24 to [Vol. 253-A, 254-A], In taped another conversa- two, tion between the Mosko informed D. Thomas Gottone Sheehan that all the receiving bets he was government’s against particular game Chicago. were on Thomas Gottone included taped numerous The сonversation continued: conversations between Gottone and Aaron Well, you Sheehan: if lay any- need to Mosko. In several of these conversations off, thing you know. Mosko and exchanged Gottone line infor- Mosko: I’ll you call if I do. mation, agreed on the line to be used on 339-A, Vol. p. [Ex. 114]. games, certain and exchanged wagers. Agent 527-A, Holmes 82; described Robert p. 307-A, Vol. Sheehan Ex. [Ex. Vol. 109; p. 196-A, as a beard Ex. for Aaron p. 4-88], placed Vol. Mosko who taped one wagers conversation with Gottone other and Mosko bookmakers on Mosko’s through went games number of with behalf. p. 9-32], [Vol. giving Mosko Gottone various amounts. The conversation concluded with David Pinelli F. Mosko stating, you get “If loaded on Denver The evidence introduced govern- thirty seven or something, call me.” Got- ment demonstrated that David Pinelli and responded tone “Okay” said, and Mosko his brother Phil partners Pinelli were ain know, “You I mean I’m loaded on Denver gambling partnership. but that 219-A, doesn’t matter.” Vol. [Ex. Tape recorded conversations between the 10, p. 4-113], two brothers mutuality demonstrated the Agent Holmes described Tom Gottone as of financial interests between' the two. lay-off source exchanged wagering 230-A, 11, p. 5-97; Vol. [Ex. Ex. Vol. activity with Aaron Mosko. p. [Vol. 10, p. instance, For in one 113]. conversa- 9-32], tion the Pinellis they discussed what collec- tively had on Denver and how they much E. Robert Sheehan “lay-off”. wаnted to 230-A, Vol. [Ex. government’s theory at trial was p. In another conversation 5-97]. David that defendant Robert Sheehan was a and Phil Pinelli went day’s over wager- beard, conduit, lay-off for Aaron Mosko. ing activity. 221-A, Vol. p. [Ex. The main evidence introduced government against Agent Holmes Sheehan con- described David Pinelli as sisted taped a partner conversations between of Phil Pinelli his gambling Sheehan and Aaron Mosko. These conver- business who assisted Phil in accepting wa- sations demonstrated that Sheehan was gers, setting line, and deciding lay-off poli- placing parties bets third behalf cy. 15, p. 9-7]. Aaron 249-A, 253-A, Mosko. 254-A, [Exs. *8 81; Vol. p. 339-A, Ex. 12, p. Vol. 114]. G. Martin Mosko instance, For series of one three conver- The evidence demonstrated that Martin sations between Mosko, and Sheehan Shee- accepted wagers Mosko on behalf of his han called Mosko inquired and if Mosko father Aaron Mosko. Vol. p. [Ex. was “heavy”. responded Mosko that it 24; Ex. p. Vol. In addition the 90]. was early too accepted to have a large government offered evidence from which a amount wagers. of He added that his mutuality of financial interest between “bettors all until wait the last minute.” Martin Mosko and his father Aaron could Mosko asked Sheehan to call back later. be inferred. [Ex. 326-A]. Later Sheehan called Aaron Mosko back and conversation, Mosko In one taped asked Sheehan “[g]et to me Martin and about three on thousand Miami minus four- Aaron Mosko they discussed what “need- teen....” responded, Sheehan “Let me ed” on afternoon games. In an- [Id.]
1469
information,
of line
and use
exchange
ing,
Martin
between
taped conversation
other
ancillary activities.
and
all wa
reported
Mosko, Martin
Aaron
and
18 U.S.C.
OF
II. CONSTITUTIONALITY
absence.
[Ex.
in Aaron’s
accepted
he
gers
STATUTES
RELATED
AND
1955
§
Later,
same
in this
12, p.
273-A,
Vol.
a,
off, a,
Pinelli, Robert
“I
David
laid
and
stated
Phil
Appellants
Martin
conversation
Gottone,
Bur-
William
Sheehan, Thomas
[Id.].
twelve.”
plus
Minnesota
with
dime
18 U.S.C.
assert
Aaron Mosko
and
bridge
Mosko’s
Martin
described
Holmes
Agent
Three
vague.
unconstitutionally
is
1955
§
accepted
phoneman
least a
as at
role
Pinelli,
Pinelli
David
Phil
appellants,
of
to
them
relayed
and
bettors
wagers from
18 U.S.C.
Sheehan, argue
and Robert
to
15, pp. 9-31
-32].
Mosko.
Aaron
to
applied
as
unconstitutional
1955
§
Finally,
them.
Sufficiency
Regarding
H. Conclusions
urge
Burbridge
William
and
David Pinelli
Evidence
gam-
unconstitutionality of Colorado’s
challenge
appellants’
to
18-10-101
statutes,
Central
Colo.Rev.Stat.
bling
§§
claim
is their
sufficiency
18-10-107,
of the
particularly Colo.Rev.Stat.
allegedly
jur-
they are
18-10-106(1),
prove
not
did
because
§
in violation of
overbroad
vague
of 18 U.S.C. §
elements
isdictional
amendments
fifth,
first,
fourteenth
operate
crime to
it a
makes
1955
of the Colorado
II,
10
section
and article
violation
gambling business
ar-
each of these
rejеct
Constitution.
involving five
of Colorado
State
laws of the
guments.
substantially
which was
persons
more
or
con-
upheld the
previously
has
This Court
thirty
excess
operation
continuous
three
1955 on
18 U.S.C.
stitutionality of
§
wagers in excess
gross
had
days, which
is a valid
(1)
the statute
grounds:
Here,
day.
single
$2,000
on
congressional
exercise
constitutional
days,
particular
telephone calls
multiple
Clause
Commerce
under the
power
among appel-
the coordination
well as
Constitution;
not
it is
States
United
many conversa-
evident
which
lants
Clause
Process
the Due
repugnant
reve-
generated
tions,
together
amendment;
(3) the statute
the fifth
substantially in excess
nues, which were
Unit-
jeopardy. See
double
invite
does
for
a basis
amply provide
Smaldone,
day,
$2,000 per
F.2d
485
v.
ed States
Cir.1973).
findings.
(10th
jury’s
1342-43
briefly
may be
charges
remaining
circuits
join five other
Today, we
pro-
1952
U.S.C.
Title 18
§
summarized.
is not void
1955
ruling that Section
facil-
McCoy,
calls
v.
telephone
States
interstate
United
See
hibits
vagueness.
cert.
Cir.1976),
(5th
26 U.S.C.
Title
business.
1058
F.2d
539
itate
2185, 53
at-
denied,
willful
all
unlawful
7201 declares
§
v.
States
(1977); United
230
wa-
L.Ed.2d
tax
excise
evade
2%
tempts to
Cir.),
(8th
1200, 1203
Thomas,
F.2d
508
7203
Title
U.S.C.
accepted.
gers
1677, 44
S.Ct.
denied,
U.S.
cert.
failure
for willful
a misdemeanor
it
makes
Mat
v.
States
(1975);
United
L.Ed.2d
return,
26 U.S.C. §
while
file a tax
Cir.1974) (by
(6th
883, 890
tucci,
F.2d
arising out of
offense
misdemeanor
is a
Sacco, v.
States
implication); United
tax.
occupation
pay the
failure
banc);
(en
Cir.1974)
995, 1003
F.2d
col-
the evidence
convinced
areWе
454, 459
Riehl, F.2d
States
circumstantial,
direct and
lectively, both
also United
Cir.1972);
see
(3rd
most favorable
light
viewed
when
(5th Cir.
1339, Avarello,
es-
each
satisfies
government,
1979).
*9
and
1955
of Section
elements
sential
argue 18 U.S.C.
Here,
§
conviction,
demon-
and
vague by
unconstitutionally
counts
other
rendered
is
“conduct”,
in a sub-
participation
appellants’
of the word
in the statute
strates
use
addition,
appel-
bookmaking busi-
undefined.
continuous
is
and
stantial
vagueness
unconstitutional
urge multiple bookmakers
lants
by
conducted
ness
con-
demonstrated
is
in Section
wager-
through lay-off
linked
others
and
flicting interpretations
given by
legislation
lower
was aimed
curtailing
toward
courts to the
“conduct”.
word
syndicated
gambling.6
The statute
re-
quires that three elements be established to
void-for-vagueness
doctrine re
constitute
an offense:
there must
quires
penal
that a
statute define a crimi
gambling operation
(1)
which:
violates the
specificity
nal offense with sufficient
political
law of a State or
subdivision in
ordinary people can understand what con
conducted;
(2)
which it is
involves five or
prohibited
duct is
and in a manner that
persons
more
conduct,
finance,
encourage arbitrary
does not
and discrimi
manage, supervise, direct or
part
own all or
natory
Lawson,
enforcement. Kolender v.
business;
(3)
of such
and
has been or re-
352, 357,
1855, 1858,
461 U.S.
mains in substantially
operation
continuous
(1983). Although
L.Ed.2d 903
focuses both on аctual notice to citizens
the doctrine
period
for a
thirty days
excess of
or has
gross
$2,000
single
day.
revenue of
in a
arbitrary enforcement,
Supreme
and
18 U.S.C.
1955.
§
recognized
impor
Court has
that the most
aspect
vagueness
tant
doctrine "is
We find that
terminology
used in the
notice,
princi- statute,
not the actual
pa~
but the other
legislative
intent,
discernible
require
elements of the doctrine-the
and
given
the construction
Section 1955
legislature
ment that a
guidelines
establish minimal
other
circuits establish minimal enforce-
govern
law enforcement." ment standards
and
vagueness
refute the
Goguen,
566, 574,
Smith v.
challenge.
The intent of Congress as to
1242, 1247,
(1974).
S.Ct.
1471 void for is the statute fenses, that Orga not 803 802 and as sections gether v. See, States e.g., The United vagueness. of 1970. Act Crime Control nized (“[I]solated to and statutes 1206 Thomas, in both is used F.2d at language 508 same gambling business.” “illegal an ex and occasional define bets lay off casual might otherwise of a statute Words not be may suf line information change of con may be vague unduly be considered one bookmaker to establish ficient because sufficiently definite sidered of a financing the business or conducting Omaeche legislation. use other their v. bookmaker.”); States United second Idaho, 246 U.S. v. varria Cir.1977) (6th 751, 754 F.2d 560 Campion, (1918). 763 Sections 323, 326, 62 L.Ed. Cam- suggests that (“Nothing in the record togeth construed 1511 should and 1955 or sub significant had pion’s involvement Becker, F.2d 461 v. er. United States gambling enter upon the impact stantial to the Cir.1972). referring When (2nd 232 Jenkins, 649 prise.”); in Section business” gambling “illegal Cir.1981) lay-off (“[T]he 275 stated: Congress every day.... present not be man need per- generally applies section The on the critical only be available He must ownership, participate who sons is overbet the bookmaker day when illegal of an conduct management, One financial risk. to reduce needs “conduct” term business. gambling lay-off enough for man contact is bosses high level both refers bookmaker_”). in- become does not It employees. level street illegal game in an player clude Pinelli Phil and David Appellants participates chance, person nor argue 18 U.S.C. Sheehan activity by placing gambling illegal in an applied to as is unconstitutional § a bet. however, Sheehan, Only Robert them. Admin.News Cong. & 1970 U.S.Code on the based arguments presents factual chal this constitutional support record to States, the Su- v. United In Sanabria minimal he had lenge. He illustrates cases noted: preme “[n]umerous Court in enterprise gambling in this involvement 18 U.S.C. recognized that § have re only presented as asmuch partic- degree of ed.) proscribes (1976 wiretap conversa consisted lating to him business, ex- in an ipation he in which days, tions, different three a mere bettor.” as participation cept Mosko. Aaron four bets discussed n. n. 70-71 S.Ct. U.S. of the dol urges the ratio he Additionally, sup- (emphasis (1978) L.Ed.2d 43 dollars to the overall his bets lar value plied). of his the number the ratio wagered and unconstitutional that the urge Appellants his minor show overall number bets in 18 U.S.C. ambiguity vagueness ar further Sheehan operation. role conflicting in- demonstrated 1955 are give him failed gues 18 U.S.C. § courts. by lower given terpretations abe conduct would warning that his fair stated: has Court Supreme statute, and the think violation. validity at- strong presumptive [t]he it, gave appellants interpreting law case led this Congress has Act of to an taches consti their conduct warning that adequate that statutes many times to hold Court offense. criminal tuted automatically invalidated are found difficulty is simply because vague Pi- David Appellants marginal certain determining whether the Col Burbridge assert nelli, and William language. their fall within offenses statutes, Colo.Rev.Stat. orado Corp., Prod. National -107, particularly 18-10-101 §§ 597, L.Ed.2d 29, 32, 83 S.Ct. U.S. unconstitutionally over- 18-10-106(1), are interpreta omitted). The (cites fifth, first, in violation broad courts lower by various placed tions II, sec and article amendments fourteenth merely demonstrate “conduct” word Constitution. the Colorado 10 of tion marginal of- determining the difficulty in *11 1472 reading
A
of
brief
Count I of
upon
the Indict-
infringement
based
expres-
of free
People
Club,
v. Wheatridge Poker
ment under
sion.
charged
were
15,
194
alleges
(1977).
it
Colo.
569 P.2d
shows
violations of
324
four of the
The
Supreme
Colorado
statutes,
specifically
Court
gambling
Colorado
found
Colo.Rev.Stat.
“conveyed
statute
warning
sufficient
18-10-103, -105, -106, &
Appel-
-107.
§§
conduct.” Id. at 328. In
proscribed
as to
lants, however, attack the constitutionality
addition, the
Supreme
Colorado
Court stat-
only
18-10-106(1).
of
Section
Portions of
ed:
are
any
unable to conclude that
“[w]e
the statutes should not be viewed in iso-
activity
of
arguably reached
v.
lation.
Street
Lincoln
Deposit
Nat’l
statute could be characterized as free ex-
Co.,
88,
31,
41
U.S.
S.Ct.
li had been
court
original tapes. The district
wiretap
ceptee in a state
affidavit
amply
government
ex
found
intercept wire com-
application to
time the
delay
at the
for
plained
reasons
district
was submitted
munication
prior to trial
evidentiary hearing held
wiretap affida-
state
court.
Colorado
suppression
was unwar
further found
vit,
turn,
initiation
a federal
led to the
clearly er
findings are not
ranted. These
v.
prosecution, United States
criminal
Diana, 605 F.2d
States v.
roneous. United
Cir.1983).10
(10th
McNulty, 729 F.2d
Cir.1979)
(4th
(thirty-nine
undisputed that the
It is also
require suppres
sealing delay did not
day
list Phil
case failed to
Pinelli
in this
cert,
denied,
sion),
U.S.
interceptee pursuant
prior
(1980).
L.Ed.2d 787
2518(l)(e)
applied to the federal
when it
wiretap-
comply
sup-
judge
with Colorado
wiretap
failed to
McNulty,
evidence
10. In
prosecution
pressed
ping
F.2d at 1266-69.
in the federal
because
law. 729
district
wiretap
issued
a Colorado
order
state
The defendants’
to show
the district court held a
burden
We note
Unit-
lengthy evidentiary hearing on the admissi-
one.
of discretion is a difficult
abuse
wiretap
and heard
Scoy, 482 F.2d
bility of the
ed States v. Van
multiple challenges
arguments on the
(10th Cir.1973). Here, both defendants re-
by appellants.
this
evidence advanced
time
at the conclusion
quested
first
subsequently
district
issued a de-
court
government’s
a sever-
case-in-chief
opinion denying
suppres-
tailed
various
proposed
of counts and a
waiver
ance
Mosko,
United States
sion motions.
Furthermore,
pretrial
jury.
none of the
F.Supp. 402. We affirm the district court’s
suggested
by the defendants
motions filed
suppression
denial
motions for sub-
associated
any fifth amendment concerns
stantially the same reasons set forth in the
charges
joint
trial of the
opinion.
district court’s well-reasoned
tax counts.
the fact that the
and the
Given
gambling charges in this case were
tax and
VI. MID-TRIAL
SEVERANCE MO-
intertwined,
timely
inextricably
even a
mo-
TIONS
posed a for-
tion for severance would have
govern
At
the conclusion of
obstacle for the defendants
this
midable
case,
appellant
ment’s
counsel for
Phil Pi
Here, however,
ease.
severance mo-
requests.
sought
nelli
He
made
series of
timely
tions were not
made and therefore
a severance of the two tax evasion counts
denied. appropriately
(Counts
12)
remaining
11 and
from the
Sanders,
Cir.
counts,
alternatively,
court-imposed
re
1972).
scope
striction on the
of cross examination
if
testify
Phil Pinelli chose to
as to
tax
VII. REMAINING GROUNDS
*15
evasion counts. He also made a related
remaining grounds
The
for reversal have
request
jury
to waive
trial on the two tax
carefully
been
examined and none is meri-
19, pp.
evasion counts.
The
[Vol.
13-17].
(1)
They
allegedly
torious.
are
prejudicial
requests
grounded
on Phil Pinelli’s
forms; (2) post-trial
verdict
denial of a de-
testify regard
assertion that he desired to
(3)
jurors;
fense motion to interview
failure
counts,
ing the tax evasion
but retain his
grant
to
a defense motion for a bill of
privilege
respect
fifth amendment
with
(4)
particulars;
allegedly improper jury in-
brother,
gambling charges.
the
His
David
structions;
failure of the trial court
charges
who also faced two tax
grant
a defense motion for a new trial
(Counts
15),
14
request
made the same
grounds
prejudice.
on the
of cumulative
respect
only.
p.
with
to Count 14
JUDGMENT AFFIRMED.
The
declined the defen
19].
jury,11
dants’
offers to waive
the dis
HOLLOWAY,
Judge,
Before
Chief
requests.
trict court denied the defendants’
McWilliams, mckay,
logan,
requests
We find that
were neither
ANDERSON, TACHA,
SEYMOUR,
timely nor meritorious.
BALDOCK, BRORBY, EBEL, Circuit
grant
The decision on whether to
a sever
**, District
Judges, and PHILLIPS
ance lies within the sound discretion of the
Judge.
trial court and its decision will not
re
be
ORDER
appeal
versed on
strong
the absence of a
appeals in
showing
captioned
of
United States v.
prejudice.
cases were
Hayes,
(10th Cir.1988); disposed
opinion
861
the court’s
F.2d
1231
filed on
Heath,
United States v.
580
June
1989.
court now has for
con-
(10th Cir.1978),
cert. denied sub
appellants’ petitions
sideration
for rehear-
nom.,
87-2511,
ing
U.S.
99 S.Ct.
U.S.A.
v.
Pinelli and
(1979).
87-2513,
L.Ed.2d 42
U.S.A. v. David Pinelli. The court
**
Layn
23(a)
Phillips,
The Honorable
R.
United
[Vol. 19 at
Rule
States
of the Federal
Judge
provides:
Rules of Criminal Procedure
District
for the Western District of Oklaho-
ma,
designation.
sitting by
required
by jury
Cases
to be tried
shall be
so tried unless the defendant
waives
writing
approval
trial in
with the
of the court
government.
and the consent of the
given to the
conflicting interpretations
peti-
appellants’
consideration
has for
also
by various lower courts.
for
“conduct”
word
suggestions
rehearing, with
for
tions
arguments
rejected
87-2565,
opinion
these
panel
U.S.A. v.
banc, in
Our
rehearing en
constitutionality of the stat-
87-2616,
v. William
Sheehan,
upheld
U.S.A.
Aaron
87-2678,
v.
U.S.A.
Burbidge, and
ute.
Mosko.
opinion
panel
argue
now
Appellants
whereof,
panel
precedent
Upon
prior
consideration
circuit
with
conflicts
sought to be
opinion
(10th
Morris,
filed the
v.
judges who
612 F.2d
United
limited
rehearing for the
Boss,
grant
reheard
Cir.1979) and raised
discussing issues
purpose
rehearing,
Cir.1982). On
F.2d 396
opinion
separate
A
rehearing.
for
petitions
panel’s construction
urge the
appellants
with
coincident
rehearing is filed
on
based on Sanabria
18 U.S.C. §
filing
this order.
States,
U.S.
(1978),
Federal
criminal liabil-
Rule
creates
57 L.Ed.2d
accordance
Procedure,
petitions
participation in
Aрpellate
degree of
ity
Rules of
for
simple
were transmitted
rehearing
business, except
en banc
for
illegal gambling
regular
are
argue
court
judges
Therefore,
all
betting.
panel
No member of
service.
panel
active
standard
“any participation”
service
active
regular
judge
and no
with, or overrules
opinion is inconsistent
the court
requested that
having
court
“help-
“necessary” versus
implication,
banc, Rule
en
rehearing
polled
by our circuit
drawn
ful” distinction
Procedure,
Appellate
Rules
Federal
and Boss. cannot subscribe
Morris
are
rehearing
de-
en banc
suggestions
reasoning.
this
nied.
the termi-
examined
previous opinion
Our
intent, and
legislative
nology, discernible
did
MOORE
Judge
P.
JOHN
Circuit
other
given to Section
construction
participate.
vagueness.
deciding the issue
circuits
McWILLIAMS,
BALDOCK,
Before
deter-
conducted
This examination
Judge.
PHILLIPS, District
of-
1955 defined
mine whether
illegal gambling
conducting an
*16
fense
REHEARING
PETITION FOR
ON
or-
specificity that
with sufficient
business
Judge.
PHILLIPS, District
ac-
what
could understand
dinary persons
case,
we
disposition
this
last
In our
regard, we
In
prohibited.
this
are
tivities
of all seven
below
the convictions
affirmed
sufficiently de-
was
the offense
held that
affirm-
From this
defendant-appellants.
en-
guidance
law
give minimal
fined to
rehearing
seek
ance,
appellants
five
Further,
we held
officials.
forcement
concerning vari-
banc
en
rehearing
and/or
vague.
not
was
statute
grant
We
opinion.
panel
aspects of
ous
conflicting
that
unpersuaded
remain
We
raised. For
the issues
discuss
rehearing to
vague
demonstrate
decisions
lower court
below,
reaffirm
we
set forth
reasons
“possible
have been
would not
ness.
It
these convictions.
of the
all
to outline”
Congress
for
practical
“might be said
ways
person
possible
I.
gambling business.”
conduct
Pinelli, Robert
appellants,
These
1050,
n. 8
McCoy, rehearing
Mosko,
Sheehan,
seek
and Aaron
919,
denied, 431 U.S.
Cir.1976),
cert.
concerning the
banc
en
rehearing
and/or
(1977). More
53 L.Ed.2d
97 S.Ct.
1955.
constitutionality
18 U.S.C.
§
jurisdiction
of federal
over,
the contours
argued 18
appeals,
their initial
fully
yet
been
have
Section
under
vagueness
void
1955 was
U.S.A. §
F.2d at 1058.
McCoy,
delineated.
in the stat-
“conduct”
the word
use
our
suggestion,
appellants’
Contrary
Appellants fur-
was undefined.
ute which
line with
in
squarely
opinion is
previous
vague-
the unconstitutional
ther asserted
stat
that
Supreme Court
teachings of the
was demonstrated
ness
Section
automatically vague “simply
plains
utes are not
explain why
that the Court failed to
difficulty is
in determining
unpersuaded by
because
found
we were
his contentions
marginal
regarding
whether
certain
offenses
fall
the small number of bets and
value,
United States v.
language.”
within their
their dollar
and their ratio to the
Dairy
Corp.,
National
Prod.
372 U.S.
overall number of bets and dollar value.
594, 597,
against
amply
S.Ct.
L.Ed.2d 561
The evidence
Sheehan is
de-
(citations omitted).
previous opinion.
scribed
our
We reaf-
firm that Sheehan’s activities constituted
Our circuit’s
since
decisions
1973 illus
Morris,
“integral part
an
of the business.”
develop
trate our efforts to
these “con
resses who did
more than serve
*17
gamblers
drinks to
were not “necessary” to
appellants,
Two of the
David Pinelli and
the
meaning
business within the
of the Act.
Sheehan, request
rehearing and/or
en banc
rehearing
urging
Today,
insufficiency
we reaffirm that
the statute is
of the evidence to convict them under
sufficiently explicit to
18
warning
afford fair
They argue
U.S.C.
1955.
the evidence
contemplating
to bookmakers
conducting
§
must be
against
measured
the standards
business transactions with other bookmak-
enunciated
United States
this Court in
ers as in
Additionally,
this case.
we reaf-
Morris,
v.
(10th Cir.1979),
Appellant
argu-
Sheehan reasserts his
presented against
the evidence
him at trial.
ment that 18 U.S.C.
1955 is
Opinion
unconstitu-
at 1468. He claims the evidence
§
applied
tional as
to
presented
him. Sheehan com-
only
below showed
that Pinelli
operation,”
they are viewed as one
brother,
his
partner
with
was
13-14],
and the definitions
pp.
David Pinelli
partnership.
gambling
[Vol.
in a
23, p.
lay-off bets
failed
however,
asserts,
that the evidence
any gambling
in
involved
he was
to show
again
has
examined
panel
the other co-defen-
conducted
business
circumstantial, in
evidence, both direct and
panel
Therefore,
argues the
he
dants.
govern
most favorable to
light
con-
sufficient
finding
erred
is sub
ment,
required, and finds “there
as
1955.
18 U.S.C.
him of violation
vict
jury might
from which
stantial evidence
rehearing
appellants guilty
also seeks
find” the
be
reasonably
Robert Sheehan
in-
Morris,
was
presented
612 F.2d
contending the evidence
doubt.
yond a reasonable
for be-
conviction
support
(citing
Jorgenson,
his
sufficient
at
illegal gambling
(10th Cir.1971),
cert. de
F.2d
ing a conductor
nied,
of the Indict-
30 L.Ed.2d
alleged
One
in Count
business
argu-
three
the activities
repeats
(1972)).
The Court
finds
ment. Sheehan
consti
support
and Robert
panel
David Pinelli
Sheehan
he raised
ments
illegal gam
First,
urges,
“integral part” of
tuted an
this
Sheehan
these contentions.
Morris,
494.
F.2d at
bling
to establish
business.
sufficient
evidence was not
addition,
financially inter
being
gambling In
without
the individual
linkage
between
business,
may
“a
the five con- ested
bookmaker
necessary
establish
offices
Second,
others which
place lay-off bets with
liability.
still
ductors for Section
as
of his business
make them conductors
evidence was insuffi-
explains the
Sheehan
Morris,
Final
Using
springboard,
this case as a
Mosko the
urges
Government. The
assertion,
following
contrary
takes issue with the
instruction
to Mosko’s
*19
given by
judge
the
in
clearly charged
trial
the instant case: was
that the business had
helpful
While
law,
sary means essential.
each
in
of state
to be
violation
of some assistance....
means
participate in
knowingly
had to
defendant
business,
they could convict
the
p.
[Vol.
13].
met the standard
only on evidence that
instructions, as a
reviewed the
We have
1955.
under Section
principal
whole,
determined the in
required,
apprised
jury
adequately
structions
instructions
all of the
have reviewed
Pepe,
law,
applicable
court,
individually
by the trial
both
given
Cir.1974),
(10th
and as
501 F.2d
that the focus
believe
and as a whole. We
of the
gave
an accurate statement
whole
challenged
in the
instruc-
sentence
Rothbart, 723 F.2d
law. United States v.
“aiding” occurred
the word
tion in which
Cir.1983)
(10th
(citing
illegal
type
activity which was
was
Hudler,
gambling
professional
under the Colorado
denied,
Cir.1979),
cert.
jury
judge instructed the
The trial
statute.
(1980)).
1647,
... You
IV.
illegal
merely helpful to an
may be
business,
per-
not make a
does
appellant William Bur-
rehearing,
On
a conductor
son
of his conviction
bidge requests
reversal
Thus, only persons with some
business.
a new trial.
the case for
and remand of
illegal gam-
necessary
opinion applied
function
panel
Burbidge argues the
by you
may
considered
bling
reviewing
whether
business
an incorrect standard
there are five or
determining
whether
extrinsic material
jury’s exposure to
illegal gam-
trial. The
conducting
requires
a new
persons
more
room
of discretion
opinion applied an abuse
bling
panel
business
ruling on Bur-
trial court’s
standard to the
request
for mistrial
bidge’s motion
12-13],
pp.
applicable
Burbidge argues the
trial.
new
charged:
trial court further
Tenth Circuit
legal standard
possibility
slightest
is the
“necessary” is to be distin- whether “there
The word
resulted from
could have
that harm
helpful. Neces-
guished from the word
*20
part
page.
yellow posted
a
Is the
in
under
viewing of unadmitted evidence”
jury’s
Jerry
of the evidence?
Pearson.
Unit
mandatory.”
ease “reversal
which
Marx, 485 F.2d
ed States v.
24, pp. 3-4].
[Vol.
denied,
cert.
(10th Cir.1973),
416 U.S.
addition,
again
In
have
reviewed the
we
(1974).
Bur-
40 L.Ed.2d
court’s consultation with counsel
district
recently
Tenth
re
bidge
the
Circuit
states
subsequent
re-
and the district court’s
v. Ma-
Jоhnston
in
affirmed the standard
sponse
jury’s question:
kowski,
cert,
(10th Cir.1987),
“post-
jury,
yellow
Members
denied,
S.Ct.
not received as
ed” tab on Exhibit 66 was
(1988). Burbidge seeks re
unadmitted
viewed
did
request
for mistrial and the district
Id.
prejudicial error.
not constitute
denying
court’s reasons for
mistrial. We
Burbidge’s
also reviewed
belated motion to
Johnston,
police report
which de-
jurors
interview the
filed a
after the
week
during
fense counsel had used
cross-exami-
trial,
completion of the
and motion for new
nation,
marked for
and which had been
trial, together with the district court’s deni-
only,
not received in evi-
identification
but
als.
dence,
way
jury
its
into the
room.
found
Applying
“slightest
possibility
of We believe this situation is much more
Hueftle,
to standard,
analogous
ap-
circuit found that
harm”
our
(10th Cir.1982),
upon previ
F.2d 1305
relied
pellant’s rights
not violated
were
In Hueftle, when the
ously by
panel.
presence
police report
jury
jury
Johnston,
concerning
retired
to deliberate
during
room
deliberations.
site,
charges
trespass
plant
aat
nuclear
F.2d at 389-91.
jury
reading “They’re
discovered a card
Johnston,
present
Unlike Marx
Guilty,
among
Nuke’M”
the evidence.
case does not involve exhibits which
They
judge
sent a note to the trial
indicat
In-
offered but not received
evidence.
ing
jurors
those
who had viewed the card
stead,
yellow
the extraneous matter was a
Hueftle,
they
ignore
had voted
could
it.
exhibit,
“post-it”
attached to an
tab
court,
Donna themselves, sim others and all and for situated, Defendants-Inter ilarly venors-Appellees,