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March 21, 1990

DOMINIC CORTINA, et al., Defendants

The opinion of the court was delivered by: BUA


 On November 8, 1989, the United States filed a two-count information asserting criminal charges against defendants Dominic Cortina, Donald Angelini, Joseph Spadavecchio, and seven other defendants. Count One charges that each defendant conspired with the other to conduct an illegal sports gambling operation in violation of 18 U.S.C. § 1955. Count One specifically alleges that Cortina was the leader/organizer, while Angelini and Spadavecchio were managers/supervisors of the illegal bookmaking ring, which began sometime in 1983 and lasted until June 1989. Count Two charges that defendants violated 26 U.S.C. § 7203 by failing to supply information relating to their illegal operation required by the regulations of the Internal Revenue Service.

 On November 14, 1989, all ten defendants pled guilty to the charges in both counts of the information. *fn1" The plea agreements executed by defendants Cortina, Angelini, and Spadavecchio contain certain preliminary calculations regarding the sentencing range applicable to each defendant under the United States Sentencing Commission Guidelines ("the Guidelines"). At the same time, the agreements reserve to the defendants and the government the right to contest certain sentencing issues, including whether defendants should be assigned offense level points pursuant to § 3B1.1 of the Guidelines for their role in the offense and whether an upward departure from the Guideline ranges applicable to these defendants is appropriate. On February 27, 1990, the court held a sentencing hearing at which both the defendants and the government presented evidence and made arguments relative to the proper Guideline calculations and the appropriate sentence for each defendant. This order resolves those issues and sets forth the sentence for each defendant.


 The government and the defendants agree that pursuant to § 2E3.1 of the Guidelines the base offense level attributable to each of the defendants is 12. The government argues that these base offense levels should be increased pursuant to § 3B1.1 of the Guidelines because of defendants' roles in the offenses. Specifically, the government maintains that Cortina should receive a 4-level increase pursuant to § 3B1.1(a) for his role as a leader/organizer of the gambling ring, and that Angelini and Spadavecchio should receive increases of 3 levels pursuant to § 3B1.1(b) because of their roles as managers/supervisors in the operation.

 The defendants object in concert to these proposed increases. Defendants argue that the statute under which they are charged, 18 U.S.C. § 1955, already takes into account their roles in the operation. Defendants base their objection on the fact that a gambling operation is chargeable under § 1955 only where the illegal gambling business

involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such a business; and . . . [the business] has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $ 2,000 in any single day.

 18 U.S.C. § 1955. Based on the language of § 1955, defendants argue that increasing their offense levels pursuant to § 3B1.1 would amount to "double-counting."

 The court rejects defendants' argument. Although a violation of § 1955 does not occur unless the illegal gambling operation meets the above-cited requirements, an individual need not have a major role in the operation to be charged under § 1955. A person can be charged under that provision where he is merely a minor participant in the gambling operation, even if his role is simply as a telephone clerk or runner. See United States v. Hunter, 478 F.2d 1019, 1022 (7th Cir.), cert. denied, 414 U.S. 857, 94 S. Ct. 162, 38 L. Ed. 2d 107 (1973). Therefore, contrary to defendants' assertions, § 1955 is not a kingpin statute; it simply does not take into consideration defendants' roles in the offense. Accordingly, increasing defendants' offense levels pursuant to § 3B1.1 does not amount to "double-counting."

 Aside from the double-counting argument, Angelini makes no other challenges to the assignment of 3 offense level points to him pursuant to § 3B1.1(b). Spadavecchio, however, raises several other arguments solely on his own behalf which challenge the assignment of additional offense level points to him for his role in the offense. First, Spadavecchio maintains that since the government wiretap experts identify him as a "writer/office worker; assist[ant] [to] Angelini," the court should find that he was not a manager or supervisor. This argument flies in the face of the express language of Spadavecchio's plea agreement, in which Spadavecchio admits to being a manager or supervisor. Furthermore, Spadavecchio's argument is based on the premise that the titles "assistant/office worker" and "manager/supervisor" are necessarily inconsistent. That premise is inherently flawed. Since Angelini was one of the top men in the gambling organization, Spadavecchio's designation as Angelini's assistant does not preclude the finding that he acted in the capacity of a supervisor or manager over other individuals in the operation. Similarly, the fact that Spadavecchio was an "office worker" does not necessarily show that he did not have management responsibilities. In fact, the same wiretap analysis to which Spadavecchio refers states that Spadavecchio assisted Angelini in " overseeing the operation of several locations which accept wagers from bettors." (Emphasis added.)

 Spadavecchio also argues that even if he acted as a manager or supervisor, he should receive only a 2-level increase pursuant to § 3B1.1(c) because he managed a gambling room containing less than five persons. Under § 3B1.1(b), however, a defendant must receive a 3-level increase where he is a manager or supervisor "and the criminal activity involved five or more participants or was otherwise extensive." Here, Spadavecchio expressly admitted in his written plea agreement that he conspired with all of the other nine defendants in this case -- and others -- to conduct an illegal gambling operation. Moreover, the government's evidence clearly shows that the gambling operation in which Spadavecchio participated involved numerous individuals and was, by any measure, "extensive."

 Spadavecchio's final argument regarding his role in the offense is that even if he is technically eligible for the 3-level increase provided for in § 3B1.1(b), the court should assign him only a 2-level increase due to the special circumstances of this case. Specifically, Spadavecchio argues that giving him a 3-level increase for his role in the offense will create the unjust anomaly of having his offense level equal to that of Angelini, who clearly had a higher managerial role than Spadavecchio. This court has no authority, however, to simply add or subtract offense levels as it desires. The court is bound to apply the plain meaning of the Guidelines as they are written. As Spadavecchio has astutely pointed out, if the court were considering whether to adjust his offense level for a mitigating role instead of an aggravating one, it would have greater latitude in assigning offense level points pursuant to § 3B1.2 of the Guidelines. *fn2" However, the Guidelines have no similarly flexible provision for the assignment of offense level points for aggravating roles, and this court will not judicially create one. If anything, the proper inference to be drawn from the Sentencing Commission's failure to have the same flexibility in § 3B1.1 as there is in § 3B1.2 is that no such flexibility was intended, not, as Spadavecchio suggests, that such flexibility was intended but was omitted by oversight. Accordingly, the court rejects Spadavecchio's arguments regarding his role in the offense. Spadavecchio must receive the 3-level increase provided for under § 3B1.1(b).

 Cortina also makes an argument relating specifically to his role in the offense. Cortina argues there was no single gambling operation encompassing all the defendants in this case and, even if there were, he was simply a manager or supervisor, not a leader or organizer. Based on this argument, Cortina asserts that if his offense level is increased at all for his role in the offense, he should receive only a 3-level increase pursuant to § 3B1.1(b), not the 4-level increase provided for in § 3B1.1(a).

 The evidence in this case belies Cortina's argument that all the defendants were not engaged in a single illegal gambling operation. Wiretap evidence contains discussions which show interaction among virtually all the defendants regarding the placement of bets, the determination of the point spreads and lines, and the payment and collection of gambling debts. Physical evidence also shows significant interaction among Cortina, Angelini, and other defendants on different dates and at various times of the day. Several individuals testified before the grand jury in this case that they received salaries for working on phones in different offices overseen by different defendants during the same time period. In addition, at least one of the defendants in this case -- Raymond Tominello admitted to taking ...

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