Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 CR 124 -- Robert W. Warren, Judge.
Before Wood and Cudahy, Circuit Judges, and Dumbauld, Senior District Judge.*fn*
Defendant Angelo Martellano was convicted in a 1980 jury trial of a single violation of 18 U.S.C. § 1623(a)*fn1 for an alleged false declaration before a special grand jury investigating possible violations of federal gambling, extortion, and racketeering laws. On appeal he raises various issues, but we need consider only the possible ambiguity of the question alleged to have been falsely answered together with the sufficiency of the evidence.
The core of the one-count indictment is concise:
4. At the time and place alleged in paragraph one (1), Angelo Martellano appeared as a witness before the Grand Jury, and after having been sworn, and then being under oath, testified falsely before the Grand Jury as follows:
Q. Have you at any time-first of all, during the period you were employed at Snug's, did you ever have occasion to accept wagers on sporting events?
5. These declarations by the defendant were false and known by him to be false when made, because on or about January 8, 1980, he accepted a wager in the amount of fifty dollars on a professional football game.
The basic facts are not disputed as it was stipulated that the question was asked and answered as alleged. The defendant was the maitre d' during a period in late 1979 and early 1980 at Snug's, a restaurant in Milwaukee, Wisconsin, the scene of an undercover investigation by the Organized Crime Strike Force and the FBI. Special Agent Dale E. Farmer of the FBI, using the name Donald Franks and posing as a patron, frequented Snug's during that period. He became acquainted with the defendant, and that relationship culminated in a bet of $50 between them on the outcome of the 1980 Super Bowl football game. The defendant won the bet and the agent paid off.
The essence of the defendant's defense is, first, that the question on its face is ambiguous as it inquires about "wagers" on "sporting events" in the plural. Since the evidence showed only one bet, he therefore claims to have answered honestly.
But beyond semantics the defendant claims to have misunderstood the thrust of the question, and so explained in his testimony. Facing a federal grand jury probing racketeering and organized crime, as he says he was informed before the grand jury, he did not conceive that the question could be directed at his one "personal" Super Bowl $50 bet. Preceding that question, he testified he was questioned about the use of the telephone in Snug's, the principal office equipment of a bookie. Along with the plural aspects of the question, he was misled, he says.
The government dismisses all of that as "lexicological gymnastics," since the question was clear and unambiguous. There was interest, the government explains, in even a single bet as was apparent from the use in ...