Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Judge Bernard M. Decker, presiding.
Tom C. Clark,*fn* Associate Justice, Fairchild, Chief Judge, and Hastings, Senior Circuit Judge.
The appellants, Joel M. Glickman, Randolph L. Riotto and Anthony Turzitti, were convicted by a jury on a one-count indictment charging them with conducting a gambling business unlawful under Illinois law*fn1 in violation of 18 U.S.C. § 1955.*fn2 A fourth defendant, Roger Riccio, was acquitted on instruction of the court at the close of the Government's case. Augustus John Lazzerini, Charles P. Naponelli, Vincent Michael Palucci and Hal C. Smith were named as unindicted participants in the gambling business as well.
On appeal, the appellants jointly allege that insufficient evidence exists to support their § 1955 convictions, focusing on the "five man operation" and the "$2,000 gross revenue on any given day" requirements of the statute. Glickman individually asserts that the trial court's instructions regarding lay off bets were erroneous and prejudicial, and also claims that the Government's failure to produce the original notes of its expert witness violated 18 U.S.C. § 3500. Finally, Turzitti claims that the prosecutor made a prejudicial statement concerning the size of the appellants' gambling operation during closing argument. We find no merit in any of the contentions and affirm the judgment.
The appellants concede that each of them was involved in a bookmaking business but contend that there were actually three separate operations, none of which was sufficiently large to come within the interdiction of the Act. Specifically, the appellants urge that when each operation is considered alone, neither the statutory requirement of five persons comprising the gambling business nor $2,000 gross revenue on any given day is satisfied.
In presenting its case, the Government offered proof that the allegedly separate bookmaking operations were fused together through "lay off" bets and "betting lines," with the result that the combined operation more than satisfied the § 1955 requirements.
The evidence presented by the Government was gleaned nearly exclusively from tapes of intercepted telephone conversations between the various parties*fn3 - the Turzitti operation, composed of Turzitti, Riotto, Naponelli and Palucci, and the Glickman-Smith operation.*fn4 Conversations between Turzitti and Smith revealed that Smith furnished Turzitti the current handicaps betting lines as well as game results on a daily basis, which information Turzitti relayed to his people (Riotto, Naponelli and Palucci) for the purpose of securing bets. The monitored telephone conversations also showed that Turzitti received wagers which he subsequently placed with Smith along with bets of his own. The Government expert characterized the placing of the Riccio bets as a "lay off" whereby Turzitti passed them on to Smith (Glickman's employee).
The appellants claim that Turzitti acted as a "beard" for Riccio in this regard.*fn5 However, we note that in a monitored conversation on October 13th after a football game, both Smith and Turzitti spoke of the "lay off bets" that Smith had accepted from Turzitti.*fn6 And on the next day, Turzitti asked Smith to increase the lay off from "4" ($400) to "5" ($500) because he was "stuck with a dime [$1,000] altogether," to which Smith agreed.*fn7
We are of the opinion that these allegedly separate bookmaking operations were linked closely enough to constitute a single bookmaking business. The Fifth Circuit has considered this question in United States v. Box, 530 F.2d 1258 (1976). At the suggestion of the appellants, we have studied Box and find it very helpful in our decision here. As Judge Goldberg points out:
In almost every case the question has been whether the exchange of lay off bets, usually in addition to the exchange of line information, could be enough to link two separate bookmaking operations into one business for the purposes of meeting the § 1955 jurisdictional requirement of five participants in one business. The answer has in every case been affirmative - the regular direct exchange of lay off bets and line information can connect otherwise independent gambling operations . . . into one business. At 1265-6.
The cases establish, then, that one who accepts lay off bets can be convicted if any of the following factors is also present: . . . evidence that the individual performed any other substantial service for the bookmaker's operation, as, for example, in the supply of line information; or evidence that the individual was conducting his own illegal ...