UNITED STATES of America v. Victor CALAMARO, Appellant.
No. 11846.
United States Court of Appeals Third Circuit.
Argued May 24, 1956. Decided July 11, 1956.
Certiorari Granted Oct. 15, 1956. See 77 S.Ct. 97.
The same lack of direct proof confronts us in connection with the charge that “payroll padding” had occurred at Dade Brothers. Again, if circumstantial evidence were allowed there is enough proof from which legitimate inference could be drawn that payroll padding did exist. The time cards of the particular six payroll names, the checks to their order cashed by appellant, the uncontradicted testimony that they neither lived nor were known at the addresses given for them, the Dade Brothers blank time cards signed by Alu, his statements to the police. From these, pieced together, payroll padding at Dade Brothers during October-November 1951 could be deduced. There are gaps in the story, for example the stated social security numbers of the six, the police prohibition against undesirable out of town elements being employed at Dade Brothers which could possibly convey the thought that fictitious Jersey City addresses might therefore be used to thwart that restriction. Even so, absent the perjury evidence essential, a jury question would have been presented on whether there was payroll padding at Dade Brothers at the time specified. Practically speaking, additional indication of thе fact may have been impossible to obtain for there is no lack of industry by the government revealed either in preparation or trial of this troublesome matter. Nevertheless since the facts of the payroll padding and Alu‘s attendance at Dade Brothers during the time fixed wеre capable of direct proof they had to be so substantiated and were not. The trial judge had no difficulty with the governing evidence law. He correctly instructed the jury on the proper rule to guide them. However, because of the failure to establish the primary elemеnts of the alleged perjury in accordance with that rule, namely, by the direct testimony of two witnesses or one, with corroborating circumstances, the case in that posture should not have been allowed to go to the jury at all.
The judgment of the district court will be reversed and thе cause remanded to the district court for further proceedings not inconsistent with this opinion.
Norman C. Henss, Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before MCLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
The special occupational tax, recently imposed on gamblers by
The legislative schеme makes a person, who engages in a type of gambling activity which is taxable under
The first question presented is whether the district court erred in not directing an acquittal on the ground that the proved conduct of the accused did not make him liable to the gambler‘s tax. In terms,
The evidence revealed appellant Calamaro as a very minor functionary in the conduct of that illegal type of lottery called the numbers game. It is conceded that he is not “engaged in the business of accepting wagers” within the meaning of
From the evidence we learn that an operating center for numbers рlay is called a “bank“. Each day the written notations of the many “plays“, showing how much each bettor has wagered and upon what number or numbers, are channeled into the bank for recordation and appropriate action. In due season the bank also disburses sums won by the rеlatively few bettors upon whose illegal chance-taking fortune has smiled. But neither in placing his wager nor in collecting, if he wins, does the bettor visit the bank or establish direct contact with the headquarters operation. Rather, he places his wager with one of many scatterеd field operatives called “writers“. We are told that the “writing” procedure is standardized in that the “writer” records each wager in triplicate on standard slips; one for the bettor, a duplicate to be retained by the writer, and a third or action copy, identified by its yellow cоlor, for the bank.
But the writer does not come into personal contact with the bank any more than does the bettor. The “numbers banker“, even as bankers and brokers in reputable commerce, employs salaried runners and messengers. These couriers are called “pick-up men.” It is the duty of a pick-up man to make a daily round of writers, collect yellow slips from them and carry these items to the bank.
Calamaro was a salaried pick-up man. He was intercepted, apparently inbound on his appointed round, by an alert police оfficer and found to have on his person telltale numbers paraphernalia; to wit, notations of bets recorded on yellow slips, such as already have been described. His conduct became a matter of concern to the federal authorities upon discovеry that he was going about his illegal work without having rendered unto Caesar any
In normal usage of familiar language, “receiving wagers” is what someone on the “banking” side of gambling does in dealing with a bettor. Plаcing and receiving a wager are opposite sides of a single coin. You can‘t have one without the other.2 Before the pick-up man enters the picture, in such a case as we have here, the wager has been received physically by the writer and, in legal contemplation, by the writer‘s principal as well. The government recognizes and in an appropriate case no doubt would insist—that what the writer does in relation to the bettor amounts to “receiving a wager.” Thus, the government has to argue that the wager is received a sеcond time when the writer hands the yellow slip to the pick-up man. But we
Recognizing this analytical difficulty, the government argues in generality that all who participate on the banking side of the numbers game may be viewed as receiving wagers. But this is an enlargement of the meaning of ordinary language used by Congress beyond ordinary usage and understanding. Certainly, such enlargement is not justified when the matter in issue is the scope of a statutory duty, compliance with which is enforced by a criminal sanction.
In reaching this conclusion we are aware that we are disagreeing with the United States Court of Appeals for the Fifth Circuit which, in Sagonias v. United States, 1955, 223 F.2d 146, upheld the conviction of a pick-up man in a case indistinguishable from this one. Three sentences in the Sagonias opinion state its rationale:
“* * * [T]he primary purpose of the statute as a whole was to produce revenue by subjecting commercialized gambling to taxation. Its provisions clearly indicate that the special tax applies to the principal оr proprietor and all persons who were knowingly engaged or used by him to receive wagers. While the express wording of
Section 3290 does not include other employees directly involved in the operation, we think it would be inconsistent with the purpose of the statute to tax those who physically receive the wagers and exempt those whose duties were as important and as much a necessary part of the gambling operation.” 223 F.2d at pages 147-148.
If we assume that this judicial view of general statutory purpose is correct, to us it still does not seem to follow that language which on its face merely imposes a tax on two categories of gambling personnel can properly be read as implying that all other categories of gambling personnel are also taxable. Ejusdem generis may be appropriate enough as a rule of limitation in construing a conjunctive coupling of specifics with a generality. But we can see no warrant for an enlargement of meaning ejusdem generis in a case like this where the legislature has used no general language to suggest that it was attempting to extend the tax beyond the enumerated categories of acceptors and receivers.
Finally, the Sagonias opinion also cites, as a makeweight, a statement in Section 325.41 of Regulation 132 promulgated November 3, 1951, by the Treasury Department. There the Department lists some examples of types of employment which in its view obligate the worker to pay this tax. One example is employment by an operator of a numbers game “to collect from his agents the wagers received on his behalf.” But we think the statutory statement of taxable categories is not ambiguous and not comprehensive enough on its face to make the situation of a pick-up man an apt example of its coverage. To accept the Treasury view would be to add to the statute something which simply is not there.
We conclude that the district court should have granted appellant‘s motion for acquittal. We have not considered any of appellant‘s objections to other rulings of the trial court.
The judgment will be reversed.
McLAUGHLIN, Circuit Judge (dissenting).
In its attempted delicate distinction which carefully removes appellant from the reach of the tax and, in effect, emasculates thе statute, the majority ignores the realities of the case.
Admittedly appellant receives the ticket identifying the particular wager from which, according to the testimony, after the winning number has “come out” the bank determines whether it is obligated
From the facts, appellant is a necessary and important participant in the ugly corroding racket involved. Not only is he subject to that part of the law imposing liability on those persons “‘engaged in receiving wagers‘“, Sagonias v. United States, 5 Cir., 1955, 223 F.2d 146, but he also comes directly under it as one “engaged in the business of accepting wagers“. That is the clear holding of Daley v. United States, 1 Cir., 1956, 231 F.2d 123, 128. There, the court specifically affirmed that portion of the trial judge‘s charge which stated that,
“* * * to be ‘engaged in the business of conducting a wagering pool or a lottery, a person does not have to personally receive money or a number poоl or lottery bet from a bettor; if he is an active participant knowingly in an essential part of the management structure in the processing of such wagering pool or lottery bets in an existing wagering or lottery business, whether top manager, agent solicitor on the street, or an еmployee or associate of a communications center or central bookkeeping agency of an organization which was engaged in accepting wagers, or conducting a wagering pool or a lottery, he is engaged in such business.‘”
There are no reported decisions in accord with the majority view. I would affirm the judgment of the district court.