*4 quitted 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 convicted, 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 accept 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 December, 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 responded 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 of 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 raise 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 evidence 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 conversation 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”. wanted 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 reject 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 areWe 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 actual 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. 39 L.Ed.2d 605 precise meaning of the word “conduct” Title 18 U.S.C. 1955 was enacted is neither defined the statute nor in the Part C of Title Organized VIII Crime history However, Section 1955. Control Act of 84 Stat. 937.5 The U.S.C. 1955 & 15117 were §§ enacted to- 1955(a) (b), 5. 18 U.S.C. § & Prohibition of il- (a) It shall be unlawful for two or more legal gambling provides: businesses persons conspire to obstruct the enforce- (a) conducts, finances, manages, Whoever politi- ment of the criminal laws of a State or directs, supervises, thereof, part or owns all or of an cal subdivision with the intent to fa- illegal gambling business shall be fined not illegal gambling cilitate an business if- $20,000 (1) imprisoned persons more than one or any or more of such not more does years, object than five or act to effect both. conspiracy; of such a (2) persons one or more of such (b) is an offi- As used in this section- elected, employee, appointed, cial or or other- (1) gambling :`i11e~a1 business" means a wise, subdivision; political of such State or business which- (1) is a violation the law of a and State or political conducted; (3) conducts, subdivision which it persons one or more of such (ii) finances, persons involves five or manages, more supervises, directs, who con- or duct, finance, manage, direct, supervise, part all or owns or of an gambling busi- business; part own all or of such and ness. (iii) has substantially been or remains in (b) As used in this section- operation period continuous thirty days for a in excess of (1) "illegal gambling business" means a gross $2,000 or ahas revenue of business which- any single day. (i) is a violation of the law of a State or (2) “gambling" includes but is not limited political conducted; subdivision in which it is pool-selling, to machines, bookmaking, maintaining slot (ii) persons involves five or more who con- tables, roulette wheels or dice duct, finance, manage, supervise, direct, or lotteries, conducting policy, bolita or numbers part business; own all or of such games, selling or chances therein. (iii) substantially has been or remains (3) any “State" means State of the United operation period continuous thirty days for a in excess of States, Columbia, the District of Common- gross $2,000 or has a revenue of Rico, any wealth of territory Puerto or any single day. possession of the United States. (2) "gambling" includes but is not limited pool-selling, bookmaking, maintaining to machines, slot Cong.Rec. 6. (1969) (remarks See 115 wheels, tables, roulette or dice Hruska); Cong.Rec. (1970) Senator 590-1 conducting lotteries, policy, bolita or numbers (remarks McClellan); Cong.Rec. Senator games, selling or chances therein. (1970) (remarks Allott). of Senator "State" means State of the United States, Columbia, the District of the Common- provides 18 U.S.C. pertinent part: § 1511 Rico, any territory wealth of Puerto Obstruction of State or local law enforcement possession of the United States.

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. 65 L.Ed. 151 pression involving or right privacy (1920). right as that has been previously defined.” Legislature When the Colorado adopted Id. believe holdings We these of the Colo- gambling its statutes in it noted the Supreme rado Court to pro- be sound and relationship close professional between support vide upholding the constitution- gambling crime, organized and other ality 18-10-106(1). of Colo.Rev.Stat. § policy declared that its was “to all restrain It never has been abridgment deemed an persons seeking profit from from gambling speech the freedom expression activities.” Colo.Rev.Stat. 18-10-101. make a course of conduct “merely The Legislature Colorado array declared part initiated, because conduct inwas of gambling illegal: activities engaging in evidenced, or carried out means of lan- gambling, 18-10-103; Section possession of guage, spoken, either printed.” written or devices, gambling 18-10-105; Section main- Giboney v. Empire Storage Co., & Ice taining gambling premises, Section 18-10- 490, 502, U.S. 69 S.Ct. 93 L.Ed. 18-10-101(2) 107. Section declared that (1949). provisions gambling statutes Supreme The Court repeatedly has ex- construed, liberally to be adminis- pressed its reluctance to strike down a tered and enforced with a view carrying on its statute face where there are many out policies. these declared situations to which it might validly ap- be plied. “Thus, even if there are marginal Appellants urge that 18-10- Section applications in which the statute would in- 106(1) unconstitutionally infringes upon fringe on values, First Amendment facial their rights first amendment of freedom of invalidation is inappropriate if the ‘remain- speech expression. The overbreadth der of the statute ... range covers a whole prohibits doctrine a statute making from easily identifiable constitutionally criminal innocent otherwise and constitu proscribable ... conduct ... Parker v. tionally protected conduct. v. Broadrick Levy, 417 U.S. 2547, 2563, 94 S.Ct. Oklahoma, 601, 613, 93 S.Ct. (1974). L.Ed.2d 439 2908, 2916, (1973). 37 L.Ed.2d 830 The Supreme The Court recognized has also question crucial then is whether the statute that where conduct and not merely speech sweeps prohibitions within its conduct that involved, must only overbreadth “not may punished not be protec because of the real, well, but substantial as judged in tion of the first and fourteenth amend relationship to the plainly legit- statutes Grayned City ments. Rockford, sweep.” imate Oklahoma, Broadrick U.S. at Here, U.S. S.Ct. at (1972). L.Ed.2d 222 Specifically, appellants gambling clearly Colorado prohibit statutes contend that 18-10-106(1), unduly range a whole of easily identifiable and interferes with the rights first amendment constitutionally proscribable conduct. of freedom speech expression. Speech expression regulated are disagree. gambling Colorado only statutes Supreme upheld Colorado Court has extent they involve activi- the constitutionality portions of certain ties. See McKenzie v. Municipality of Colorado against statutes Anchorage, 631 P.2d (Alaska Ct.App. both vagueness and challenges 1981). overbreadth We hold that gam- the Colorado pri- variety grounds. 7-9]. [Id. statutes, specifically Colo.Rev.Stat. bling *12 em- undue the alleged mary grounds vague nor over- 18-10-106(1), neither are result 66 as a on Exhibit placed phasis broad. character- government’s tab, the and the evi- MOTIONS which III. MISTRIAL as one of the document ization Phil Pinelli between “lay-off” bet a denced the trial that assert appellants Five court then The Burbidge. trial William and deny by error reversible committed court motions, stating: the mistrial denied a discovery that upon the mistrial ing a has jury that the Also, my view been inad it is “post-it” tab had non-evidentiary in its efforts disagree. jury.8 the its conscientiousness vertently sent to shown presented evidence only the to consider trial, utilized the During the very the fact the trial course of in the to exhibits tabs on of reference a number proba- was recognize that that they that presentation preparation the in assist and was part of that exhibit bly not a could be tabs These colored the case. gives it inadvertently and there probably the conclusion At the jury. the seen a jury to have the confidence great me parties provided the case, court trial the them. from received type of this note to all of the inspect to opportunity the trial Despite jury. to the p. submitted be 11]. [Yol. be exhibits that all desire court’s stated appellants’ assertion Contrary to re- only items to assure examined the if there is even must reverse that we room, jury sent to the in evidence ceived could harm” which possibility of “slightest counsel’s one defense despite at least viewing jury unadmitted the result from had been exhibits the assurance the evidence, record examine we instead was not “post-it” tab checked, yellow one its abused district court if the determine Exhibit from Government removed the motions. denying mistrial discretion tab, was sent exhibit, yellow the with That F.2d Hueftle, See United nota- The room. deliberation jury’s to the Cir.1982). exam We also 1305, 1310 “Phil Pinelli read yellow tab tion on appel whether to determine record ine the lay-off 11/26/84.” impartial trial was to a fair right lants’ a deliberations, jury sent note During Id. impaired. indicating that the tab court trial to the stating “They’re card Hueftle, a “Is asked: page under folded was to have discovered was Guilty, Nuke’M” evidence?” part of the posted yellow submitted the evidence with been included judge, after consultation The district Hueftle, trial court jury. The to the as follows: counsel, responded instruction, cautionary giving addition Exhibit “post-it” tab on yellow prejudicial jury determine polled the the evi- part not received was deliberations, a the card effect of mistakenly left on That was tab dence. we held appeal, On here. step taken not in evi- it was received when the exhibit jury of the card inclusion that the by govern- a note made It was dence. blatantly prejudicial so was not exhibits only refers lawyers and ment be overturned. must verdict that the Huef have re- I contention. government’s reviewing After tle, 1310-11. completely you will tab and moved findings here. record, similar we make the evidence considering disregard it case. in this in this case matter The extraneous oath to your abe violation It would evidence, rather but additional was not give it consideration. inadvertently sent was tab which “post-it” merely cumula was p. jury, [Yol. contentions. government’s incident, tive sev- on this unfortunate Based poll jury did trial court on a While mistrial moved eral defendants Burbidge. and William Gottone raising are Phil issue this 8. The five Sheehan, Pinelli, Thomas David prejudicial the inci- concerning the effect of because it embraces an ultimate issue to dent, poll requested by any appel- no be decided the trier of fact. prior lant to the return of the verdict.9 supervi- Holmes testified that he was a displayed by jury conscientiousness sory agent special assigned to the Gam- cautionary given by and the instruction bling Laboratory Unit of the FBI in Wash- trial court convince us the matter was ington, During years D.C. his nineteen handled, error, properly alleged and the if FBI, qualified with the he has been as an any, failing poll was harm- expert witness in cases on more Treadwell, *13 See United States less. responsibilities than 200 occasions. His in- (D.C.Cir.1985). F.2d 340-41 detection, interpretation clude the and iden- gam- tification of records and IV. EXPERT GAMBLING TESTIMONY bling paraphernalia. He holds a Bachelor’s appellants, Two Aaron Mosko and Degree in Economics and a Master’s De- Sheehan, challenge the Robert trial court’s gree Science, regularly in Forensic expert testimony admission of rendered serves as an instructor to local law enforce- Agent FBI Holmes. We review this evi ment in gambling. officers the area of Af- dentiary ruling under an abuse of discre qualifications ter a brief recitation of his States v. Buchan tion standard. trial, appellant counsel for Aaron Mosko an, (10th Cir.1986); Unit 787 F.2d stipulated expertise. [Supp. to Holmes’ Fleishman, ed v. 684 F.2d Aug. Vol. 1987 at 5-10]. denied, (9th Cir.), cert. Much of testimony Holmes’ was admitted (1982). 74 L.Ed.2d 614 objection. without only pertinent ob- Holmes, reviewing after the intercepted jections occurred began when Holmes to telephone conversations and seized docu- provide opinions on played by the roles mentation, expert testified as an as witness the various in gambling op- defendants opinion to his of the roles of each of the 9-6, -67, -74, pp. -82], eration. participants gambling operation. in the He case, complexity Given the the vol- provided also with extensive tape ume recordings and documentary glossary professional gambling terminol- exhibits, average person’s as well as the ogy. attempt opinions He did not to offer unfamiliarity professional gam- with the credibility on the ap- of witnesses who bling business, it was well within the dis- peared at trial. judge cretion of the trial permit to such testimony The admission of Holmes’ testimony theory on the spe- Holmes’ governed by Rules 702 and 704 of the knowledge cialized would assist the trier- Federal Rules of Evidence. of-fact in understanding the evidence. Moreover, provides: Rule Fed.R.Evid. 702. the testimony of Holmes did not offend Rule scientific, technical, If special- or other opinion testimony allows embracing an ulti- knowledge ized will assist the trier of mate issue. Fed.R.Evid. 704. fact understand evidence or to issue, quali- determine a fact in a witness Aside plain from the fact that lan- expert by skill, fied knowledge, as an guage of Rule 704 is the short and com- education, experience, training, or may plete appellants’ objec- answer most of testify opinion thereto in the form of an tions, we note that other per- courts have or otherwise. mitted pro- law enforcement witnesses to provides, pertinent part: Rule 704 in lay vide expert opinions both concern- ing (a) played by the roles Except provided participants in subdivision (b) variety illegal activities, condition], testimony state or including gam- [mental See, opinion bling e.g., United States operations. form of an or inference Fleishman, objectionable otherwise admissible is not 684 F.2d at and cases verdicts, however, Following receipt jurors. request trial court denied a defense to interview intercept court for authorization therein; Mas- district cited Cir.1978). Un- in the instant son, case. wire communications case, find this we der the circumstances others, allegations and Based on these not abuse its court did the district pretrial evidentiary held a the district court testimony of admitting the discretion suppress. hearing appellants’ motions to Holmes. Mydans attor- was signed requesting the ney who the affidavit EVI- ADMISSION OF WIRETAP V. wiretap. He testified that court-authorized DENCE of Phil Pinelli’s status had he known exception appellants, All case, wiretap he have listed state would Mosko, challenge the admissibili of Martin prior interceptee Pinelli as a of court- as a result ty of evidence obtained the district affidavit he submitted to court. surveillance on two electronic authorized case, From a of the record this review First, that the appellants assert grounds. government’s failure it is clear that the refusing suppress erred trial court prior interceptee list Phil Pinelli as interceptions based contents of wire *14 unintentional, sup- 18 that none of the comply with government’s failure the Second, 2518(l)(e). appellants ar pressed McNulty wiretap evidence was in- U.S.C. § the four-day delay between gue the application that or affidavit sub- cluded sealing wiretap and of the the termination in this by government mitted the case. As tapes required suppression. original of the for Phil Pinelli at conceded counsel oral ground has merit. Neither argument, government the listed Phil had interceptee, prior Pinelli as a inclusion of in- application for court-authorized Each sup- would have served to that information requires of wire communications terception government’s application for an port the following information: the interception in this case. United order the complete statement of a full and 402, Mosko, F.Supp. 654 408 v. States previous applications concerning all facts short, (D.Colo.1987). In the failure to com- authorizing and the individual known 2518(l)(e) under the cir- ply with any Section applications, made to making the require case does not intercept, or cumstances of this for authorization to judge of, wire, interceptions suppression. States v. Dono- approval for United See oral, communications involv- van, or electronic 425 n. 97 S.Ct. or persons, same ing (1977); of the facilities L.Ed.2d 652 667 n. 50 application, and specified in the places Abramson, 553 F.2d v. each judge taken the the action Cir.1977). (8th application. such fully court Similarly, the district 2518(l)(e). 18 U.S.C. § four-day delay between the the considered Pinel- undisputed appellant that It is sealing wiretap and the termination of as an inter- previously named

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 Appellate 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 612 F.2d at 494. further We find that tours” of 1955. In Morris and Boss cases gave Sheehan ade- Smaldone, (10th Cir.1973), 485 F.2d 1333 quate warning his conduct constituted a dismissed, cert. 416 U.S. 94 S.Ct. criminal offense. denied, cert. 40 L.Ed.2d (1974), 40 L.Ed.2d 286 we Finally, appellant David Pinelli ar recognized Congress’ incorporate intent to gues a sufficiency review prohibition partici within Section 1955’s all presented against him demon pants except actually wagered. those who language strates that of Section 1955 Smaldone, 485 F.2d at 1351. Then in adequate give was not him notice that Morris, person we found who conducting his actions constituted illegal an principals in bookmaking opera allowed gambling involving business five or more apartment tion to use her and who received persons. again We have reviewed the evi telephone messages principals for the against dence David Pinelli. affirm business, not a conductor of the since her the evidence demonstrated David Pi merely helpful actions were opera joint nelli’s interest in partnership enterprise. Morris, tion of the 612 F.2d at brother, Phil, lay-off where wagering Boss, Finally, we refined exchange routinely line regularly the contours still further. We held a wait among occurred the appellants. Clearly, ress who served drinks to dance hall cus the statute decision in Boss prior and our tomers, gambling illegal gave David Pinelli the notice he claims was hall, dice room at the did not fall within the lacking. Boss held where there is suffi scope prohibition against Section 1955’s cient connection between distinct bookmak gambling one who “conducts” a operation. ing operations, they are viewed as one Boss, 671 F.2d at 402. The Boss court held business under because contemplates participants Section 1955 operations all involved some actual illegal gambling in an operation performing necessary function to the “necessary” operation duties operation. Boss, 671 F.2d at 399. Id. gambling business. 400. The wait II. nothing

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), 612 F.2d 483 explicit firm the statute is enough pro- to Boss, United States v. 671 F.2d guidance vide 396 minimal to law enforcement. Cir.1982). reaching decisions, In these we do not question, upset, reverse, reject or overrule Appellant David Pinelli acknowl precedent in Boss and Morris. this circuit’s edges panel opinion summarized

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 612 F.2d at 493. insurers.” appellant Mosko’s link cient to Sheehan here, connections ly, we find “sufficient showing the no was office because there operations so that between the Sheehan Mosko discussed bets between gambling business they are as one viewed law. case “lay-offs” defined involving, operations all the under § was the evidence Finally, stresses Sheehan however, function actual some “neces- performed a he to show insufficient Boss, operation.” necessary to as re- operation in Mosko’s sary” function F.2d at 399. re- Sheehan’s Boss. quired Morris and hearing 1-3. brief its find- Accordingly, panel reaffirms ing sufficient evidence. evi- opinion summarized the panel David against appellants presented dence III. Opinion at Sheehan. Pinelli and Robert claims Appellant Aaron Mosko be- taped conversations Clearly, the jury. improperly instructed trial court Mosko demonstrated tween Sheehan word “aid the use of the seizes on per- Mosko third placing bets with Sheehan concerning Colora instruction Mosko, ing” show of Aaron on behalf sons professional statutory prohibition of “lay do’s phrase used the personally Sheehan have allowed argues may it gambling and Agent discussions. anything off” such upon a diluted stan him convict aas “beard” described Holmes Sheehan propo this liability. support dard of other book- wagers with placed Mosko who relies on United States Mosko sition The evidence behalf. makers on Mosko’s (10th Cir.1979). A Morris, amply demonstrated David Pinelli against case shows the Morris analysis of his full partnership interest in joint *18 jury instruction to this application it has no wagering and brother, Phil, lay-off wherein controversy. regularly oc- routinely exchange line among appellants. the curred tried for Morris, persons were seven in business illegal gambling an concerning operating the jury was The instructed Defendant 18 U.S.C. 1955. § violation played function nature of the “necessary” aiding and charged with also Jarvis was individual, 13], the p. by each [Vol. federal of- a commission of abetting the con- “showing of sufficient necessity of During the 2. 18 U.S.C. fense under § so operations gambling between nection trial, charging I government produced to Count of the indictment violating certain co-defendants 18 United show Jarvis allowed Defendants with telephone took mes- I apartment, use her Code Section when read sages you ago, alleges for one defendant and informed that the few moments caller Morris could be reached. At il- gambling question where business in was trial, jury the end of the convicted legal, sec- violation of various violating both Section 1955 and Jarvis of of the Statute. tions Colorado Revised Section 2. The referred to Colorado Statute prohibits gam- professional indictment upheld appeal, On our circuit Jarvis’ con- bling. Bookmaking professional gam- is viction as an aider and abettor but found bling. The Statute also makes it the evidence not sufficient to sustain was knowingly any in- transmit or receive her conviction as a conductor or owner of aiding formation intended to be used for illegal gambling an business under Section gam- engage professional another to Morris, 1955. 612 F.2d 494-95. The bling profit the intent to derive panel distinguished conduct Morris thus therefrom. amounting participation operation gambling or direction in viola- of a business 11-12], pp. aiding tion of Section 1955 from and abet- suggests Mosko this instruction violates ting. First, prox- Morris for three reasons. spe The Morris court then discussed the imity “aiding” instruction to the given by cific instructions the trial court allegedly Section 1955 instruction resulted including sequence of instructions. being juris- in a defendant counted judge given aiding trial had though only dictional five even an “aider.” abetting immediately following instruction Second, purportedly the instructions al- the instruction as to the elements of the par- lowed a defendant to counted as a be substantive offense under 1955 and ticipant prior business ato immediately preceding the definitions determination whether the conduct of certain in 18 words used U.S.C. 1955. liability the defendant met the standards of Morris, 612 F.2d at It deter 496. was Finally, under Section instruc- mined that a under substantive offense allegedly equated tion a Section 1955 viola- required participation Section 1955 profession- tion with a violation of the state persons, necessarily at least five and “it “aiding.” al statute defined as follows that an aider and abettor could not rehearing Mosko’s at 3. brief Mosko as- required counted as one of five serts these three deficiencies could result persons.” (citing Morgan at 496 Id. being guilty if only a defendant found he States, 159 F.2d Cir. Additionally, urges “aided” others. Mosko 1947); Doughty, 460 F.2d any that if jury defendants that the (7th Cir.1972)). considered mere aiders were counted with Mosko, upon jurisdictional may The Morris court concluded that five have retrial, confusion, jury in order to avoid been reached in violation Morris. Mos- rehearing should that the reply be instructed “substantive ko’s brief at 3. offense, including person require- the five government responds that this case ment, proved any must be before defendant distinguishable from Morris because the can be as an aider and convicted abettor statute, aiding abetting 18 U.S.C. § person satisfying only and that a the aider substance, by title or charged was neither requirements and abettor cannot be count- nor by any party referred to at time persons required ed as of the five one during government this trial. The argues establish the substantive offense.” Id. at theory liability any appellant no as an 496-97. argued aider or abettor inferred

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, 64 L.Ed.2d 236 S.Ct. statutes made gambling the Colorado assertion, Here, contrary to Mosko’s “knowing- anyone who the acts of unlawful aiding charged on an jury was not any informa- or received ly transmit[ted] lack of abetting theory. The reason for the aiding for another be used tion intended to in- charge was that no defendant was gambling....” engage professional dicted, charged, tried as an aider and nor including for p. The reason [Vol. Further, given jury was not abettor. concerning illegal activity an instruction a defendant who the discretion to convict was that Colorado statutes under the only It is clear from the instruc- “aided.” one of the ele- of state law was violation jury subjected tions that here the was for a of Section to be found violation ments which occurred type of confusion However, “aid- the use of word clearly apprised of Morris. jury was court in isolation. The trial ing” was not culpability needed to con- the standard of concerning the con- fully more instructed princi- defendant as vict such individual under necessary to convict that was duct expressly charged that pal. They were 1955: merely assisted of conduct that as it is used The term “conduct” to convict. We thus not sufficient was gam- alleged illegal with an connection jury for the potential conclude that act, perform any bling means to business on a diluted standard convict Mosko necessary to duty which is function Further, po- liability non-existent. illegal gam- ordinary operation of the convicted to have been tential for others bling business.... merely “aiders” was with Mosko who also non-existent. activity, are instructed that

... 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- Johnston 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 98 L.Ed.2d 763 part a of the evidence. That tab was hearing proper in for the standard of order it mistakenly left on the exhibit when applied. to be review received in It was a note evidence. by government lawyers made and refers from our circuit relied The two eases only government’s contention. I by Burbidge involve identified upon both you com- have removed the tab and will unadmitted exhibits which were mis- but pletely disregard considering it in jurors takenly given to the to take to the evidence in this case. Marx, jury room. In a consent-to-search $1,000 currency offered form and were your It a violation of oath ... would be by the but not into evidence give it consideration. judge appellant’s admitted the trial Marx, robbery pp. trial. 485 F.2d at bank 4-6]. “slightest possibility Applying Finally, again we have reviewed the ar- standard, counsel, harm” our circuit found that Burbidge’s gument support jury

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, 687 F.2d at 1308. The trial in Huef properly had been received into evi- exhibit tle, giving cautionary addition to in dence. struction, polled jury concerning their again reviewed all the evidence We have ability ignore the card and render fair presented against appellant Burbidge, verdicts, impartial step not taken tab, “post-it” and the na- contents of appeal, held here. On we that the inclusion inquiry jury from the as fol- ture of the of the card exhibits was not so lows: blatantly prejudicial that the verdict must yellow this is a with a Hueftle, Exhibit tablet be overturned. 687 F.2d 1310- yellow posted piece paper attached to 11. We also held that the trial court did page. yellow posted says, note P. denying not abuse its discretion in a mis Id. 11-26-84, at 1311. layoff, and was folded trial motion. *21 in- matter Hueftle, the extraneous Like Also, like DOWELL, a note. under the ease is an infant in this L. volved Robert di- specifically requested jury Hueftle, the A.L. years age, age who sues a received judge and trial rection friend, father, DOWELL, as next Finally, like cautionary instruction. Huef- Plaintiff-Appellant, of discre- tle, “abuse applied the panel tion” standard. father, minor, by Dowell, her a Vivian C. decision previous its Court reaffirms The friend; Dowell, Edwina as next A.L. was in this case matter extraneous minor, by Shelton, her a Houston government’s merely cumulative Russell, Burse; mother, Gary a Gloria clear was contention, about Russell; father, minor, George by his Moreover, con “post-it” notice. ly on Sanger, himself Stephen behalf of S. already of evidence duplicative was tention situated, similarly Plain- all and others Specifically, Burbidge. against presented tiffs-Intervenors-Appellants, “post-it” used on “layoff” term 608, 609, and in Exhibits contained objection. Burbidge made no to which THE OF EDUCATION The BOARD OF to contained summaries These exhibits PUBLIC CITY OKLAHOMA “layoffs” associat and accepted wages tal SCHOOLS, DIS- INDEPENDENT Mos Phil Aaron ed with CITY, 89, OKLAHOMA TRICT NO. Burbidge. Pinelli, and William ko, David OKLAHOMA, Body Corporate; a Public attempt to evidence, jury’s obvious This Parker, Superintendent they were exactly or whether F. clarify how Jack together with "post-it,” City, Public to consider Oklahoma Oklahoma instruction, cautionary court’s Schools; Burr, Superin- trial Assistant M.J. guilt, appellant’s overwhelming evidence City, Okla- of the Oklahoma tendent its did not abuse court us trial convince Schools; Rog- P. Public Melvin homa motion appellant’s denying the discretion Lott, Bennett, ers, F. William C. trial. for new request mistrial Estes, Welch, F. Foster Mrs. Warren Hueftle, F.2d at 1311. of Education Board Members however, did hold, as our Circuit Schools, Independent City Oklahoma standard, appel- Johnston, that under County, No. Oklahoma District Johnston, fails. Burbidge’s claim lant Haller, County Oklahoma; C. William at 390. of Okla- Superintendent of Schools Oklahoma, County, Defendants- homa V. Appellees, Mosko appellants, Aaron Finally, two Sheehan, take issue Robert minor, McWilliams, a Jenny Mott did not court finding district “the panel’s McWilliams, minor, a David Johnson testi- admitting its discretion abuse McWil sue William Opinion at Agent] Holmes.” mony of [FBI friend, liams, and next their father this again has reviewed The Court others sim and all themselves behalf of objections ruling and determined Hendrickson, situated; ilarly Renee nonmeritorious. minor, Hendrickson, minor, Bradford is modified previous judgment Our minor, Hendrickson, and Cin Teresa rehear- opinion on supplemental our reflect minor, Hendrickson, who sue dy AF- are of convictions judgments ing. Hendrickson, as mother P. Donna FIRMED. minors; and of said each next friend of Individually, Hendrickson, P.

Donna themselves, sim others and all and for situated, Defendants-Inter ilarly venors-Appellees,