United States v. Walsh
Opinion of the Court
A Runyonesque gambit at the Bowie Race Track on February 14, 1975, resulted in a very peculiar horse race and a thirteen count indictment by a federal grand jury. Subsequently, the appellants, Walsh,
The evidence presented by the Government established the following facts. The four jockey appellants devised a plan to successfully “box” the “Triple” (“Trifecta”) in the ninth race on the day in question. To win the Triple a bettor is required to choose the three horses finishing first, second and third in that race. The stan
The jockeys decided to bend their efforts to bring about a winning combination of “2-8-12”, and garnered enough money to purchase thirty-eight “box” tickets on that combination. Having purchased the tickets, the jockeys rode their mounts in the race and the order of finish was “8-12-2”. Accordingly, the jockeys owned thirty-eight of the sixty-two winning eighteen dollar tickets in the betting pool for the Triple. One of the track supervisors noticed that the ratio of winning eighteen dollar tickets was three to one over the number of winning three dollar tickets, and it occurred to him that this was rather strange since the normal ratio was approximately fifty-fifty. The fact that thirty-nine out of the total of sixty-two winning eighteen dollar tickets had been purchased at one window in the clubhouse aroused further suspicions. This circumstance was compounded by the observation of the track stewards who were impressed by the highly irregular manner in which some of the jockeys handled their mounts during the race. A review of the track films confirmed the stewards’ belief that something was amiss, and an investigation of the race was initiated.
Meanwhile the jockeys were attempting to realize the profits from their winning tickets which presented a greater problem than they had anticipated. Luigi Gino sought the assistance of one Heddy Sue May who made an unsuccessful attempt to cash two of his tickets. She testified that Gino informed her that “two guys from Pennsylvania” would be coming in to cash the tickets. The services of these “ten-per-centers”
I
The threshold issue on this appeal is whether 18 U.S.C. § 224 applies to a conspiracy among the contestants as opposed to one involving individuals who are not contestants and attempt to bribe those actually involved in the sport. We find nothing in the express language of the statute to indicate that it was intended to apply only to bribery on the part of those who are not participating in the contest. The statute provides, in part:
“ Whoever carries into effect, attempts to carry into effect, or conspires with any other person to carry into effect any scheme in commerce to influence, in any way, by bribery any sporting contest * * (Emphasis added).
The statutory language does not purport to limit its application, and “[wjhere the pow
While we recognize that the primary purpose of the legislation was to assist the “Federal Government in the assault on organized crime,” the Legislative History supports the proposition that Section 224 was intended to “include players and officials as well as gamblers and fixers.”
The further argument of the appellants that horse racing is not a “sporting contest” within the meaning of Section 224(c)(2) is utterly without merit. History, logic and common sense reject such an argument, and the further contention that horse racing does not fall within the statute because it is a competition between horses and not individual contestants is equally specious. If a decisional answer to such an argument is required, it may be found in United States v. Pinto, 503 F.2d 718, 724 (2 Cir. 1974), where the court stated that the argument:
“rests on the surprising assertion that a harness race is not a ‘sporting contest’ within the meaning of 18 U.S.C. § 224(c)(2) since it involves animals rather than ‘individual contestants.’ However, the word ‘individual’ when used as an adjective does not necessary [sic] pertain to humans only, see Webster’s Third New International Dictionary 1152, and the legislative history manifests a Congressional intent to prohibit bribery of any person who can influence sports results. See H.Rep. 1053, 2 U.S.Code Cong. & Admin.News p. 2250 (1964). Furthermore, the drivers who are undeniably ‘individuals’, are an essential part of the contest, which frequently turns on their respective skills.” (Emphasis by the court).
II
Iacona, Summa and Bishop seek reversal of their convictions on the conspiracy charge, contending that the district court improperly denied their motion for a sever
“the question of severance or common trial is vested under Rule 14 in the sound discretion of the trial judge and his decision will be reversed on appeal only upon a clear abuse of that discretion.”
Cataneo v. United States, 167 F.2d 820, 828 (4th Cir. 1948). See United States v. Boswell, 372 F.2d 781, 784 (4 Cir.), cert. denied, 387 U.S. 919, 87 S.Ct. 2033, 18 L.Ed.2d 972 (1967); United States v. Miller, 340 F.2d 421, 423 (4 Cir. 1965). We have further held that denial of a motion for severance will not be deemed reversible unless an appellant demonstrates that it resulted in a degree of prejudice so substantial “that the defendants did not receive a fair trial, that ‘a miscarriage of justice’ has occurred.” United States v. Frazier, 394 F.2d 258, 260 (4 Cir.), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968).
These appellants contend, however, that the evidence demonstrated the existence of two separate and distinct conspiracies and suggest that this case falls within the rationale of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Their reliance upon that case is misplaced since we are dealing here with a “chain” conspiracy rather than a “wheel” conspiracy which was the subject of Kotteakos. In United States v. Cobb, 446 F.2d 1174 (2 Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 451, 30 L.Ed.2d 369 (1971), the court was confronted with a conspiracy somewhat similar to that in the present case. In distinguishing Kotteakos, the Second Circuit held that “[i]n contrast, the defendants’ conspiracy herein had as its object a ‘single unified purpose’ or ‘common end,’ i. e., the cashing of winning tickets while concealing from the Government the identity of the true recipient.” 446 F.2d at 1177. Under the circumstances, the action of the trial court in denying the motion for severance was not an abuse of discretion.
Ill
In addition to the severance issue, Iacona, Summa and Bishop join the jockey appellants in urging upon us that the evidence was insufficient to warrant their convictions under Count Seven of a conspiracy to violate 26 U.S.C. § 7206(2), and they suggest, among other things, that there is no evidence indicating that the jockeys had knowledge of the Internal Revenue Service requirement. To accept this argument would require a degree of naivete on our part which we are unwilling to concede.
The Daily Racing Program at Bowie carried an explicit statement of the circumstances under which the actual owner was to be identified when presenting a winning ticket,
There is ample support in the record for the conclusion that the jockeys knew that the law required disclosure of their owner
IV
The jockey appellants also contend that the evidence was insufficient to establish their guilt of either bribery or conspiracy to commit bribery. Bearing in mind “that the verdict of the jury must be sustained ‘if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt.’ ” United States v. Holt, 529 F.2d 981, 984 (4 Cir. 1975), we find in the record a sound basis for the convictions.
We will not indulge in a minute review of the testimony relative to the manner in which the jockeys manipulated their mounts during the course of the race. Suffice it to say that the evidence, including the official race films, presented a picture of misconduct that at times bordered on the bizarre. Additionally, Carlos Albert Jimenez, one of the jockeys who rode in the ninth race, testified that prior to the race he was approached by Feliciano who asked him to “pull” his horse. Jimenez replied “O.K.” and Feliciano told him that it would cost $150.00. Later Jimenez approached Gino, stating “My money is in, and I don’t know what happened,” whereupon Gino cryptically replied “2-8-12”. Jimenez testified that this information was sufficient for him. Jimenez further testified that Jesse Davidson met with him and Gino after the race at which time Davidson gave Jimenez five of the winning tickets. Jimenez cashed two of these tickets but later returned three of them to Walsh at the latter’s request.
In our opinion the offer of the appellants to include Jimenez in the betting pool in exchange for his agreement to “pull” his horse was sufficient to support the charge of bribery, and the evidence in its entirety supported the convictions on the conspiracy count.
We have given careful consideration to the other assignments of error, including the challenges of the Travel Act and wire fraud counts, and find no error. Accordingly, the convictions are affirmed.
AFFIRMED.
. Eric Stephen Walsh died while this appeal was pending and an order was entered abating the judgment of his conviction and dismissing the indictment against him. However, for the purposes of clarity and continuity, he will be referred to in this opinion as one of the appellants.
. A “ten-percenter” is one who, for a fee amounting to ten percent of the winnings, cashes tickets for others and completes the required Internal Revenue Service form. See United States v. Lincoln, 472 F.2d 1183 (5 Cir. 1973).
. 109 Cong.Rec. 4107 (1963) (remarks of Congressman Lindsay).
. 109 Cong.Rec. 2016 (1963) (remarks of Senator Keating). See 110 Cong.Rec. 920 (1964) (remarks of Congressman Corman); 110 Cong. Rec. 921-22 (1964) (remarks of Congressman McCulloch).
. 110 Cong.Rec. 921 (1964) (remarks of Congressman McCulloch).
. The Bowie program of February 24, 1975, carried a notice reading as follows:
Before receiving payment of $600 or more for a $2 wager, or $900 or more for a $3 wager, a person presenting a winning ticket (payee) must provide proper identification. The required identification must be the name, address, Social Security number of the actual winner, that is the person owning the winning ticket. The identity of the actual winner is furnished to the Internal Revenue Service for determination of income tax liability. It is a violation of Federal law to furnish false information or to aid or assist another in furnishing false information.
District Director, Internal Revenue Service.
Reference
- Full Case Name
- United States v. Eric Steven WALSH, Appellants UNITED STATES of America v. Jesse DAVIDSON, Appellant UNITED STATES of America v. Edward BISHOP, Appellant UNITED STATES of America v. Louis J. SUMMA, Appellant UNITED STATES of America v. Nicholas Anthony IACONA
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- 15 cases
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- Published