The opinion of the court was delivered by: LORD, III
There were originally in this case a total of fifteen defendants. All were indicted for conspiracy (Title 18 U.S.C.A. § 371) to violate 18 U.S.C.A. § 1952.
Nine of the defendants were indicted for the violation of 1952; five were indicted for wilfully causing and aiding and abetting the unlawful interstate travel (18 U.S.C.A. § 2); one, Comito, was indicted only for conspiracy.
I. MOTIONS FOR JUDGMENT OF ACQUITTAL
These motions are based upon two main grounds: (1) That § 1952 is not intended to cover the type of activity charged against defendants, and if so, it is unconstitutional; (2) the evidence is insufficient to sustain the convictions. We have already determined the first ground against the contentions of defendants. United States v. Barrow, et al., 212 F.Supp. 837 (E.D.Pa., 1962). We pass, then, to the second ground, the sufficiency of the evidence.
The evidence indicated that Barrow's position was a supervisory one. Pillo, DiPatrizio and Mattia were 'laddermen'.
Marzilli, Hunt and Recchia were 'dealers'. LaMonica and Dentino were 'luggers'.
Loscalzo was a doorman. Bonanno was a part time doorman and carried money from the bank to the game.
In determining the sufficiency of the evidence to sustain conviction on the first court (conspiracy), we must examine the evidence in the light most favorable to the government, recognizing and respecting the right of the jury to draw inferences. United States v. Kensil, 195 F.Supp. 115 (E.D.Pa., 1961), affirmed 295 F.2d 489 (C.A. 3, 1961), cert. den. Haith v. United States, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962). Circumstantial evidence need not be inconsistent with every conclusion save that of guilt; it need only establish a case which is sufficient to convince the jury beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954), rehearing den. 348 U.S. 932, 75 S. Ct. 334, 99 L. Ed. 731 (1955). United States v. Giuliano, 263 F.2d 582 (C.A. 3, 1959).
This case is like United States v. Zambito, 315 F.2d 266 (C.A. 4, 1963), cert. den. 373 U.S. 924, 83 S. Ct. 1524, 10 L. Ed. 2d 423 (1963). With the exception of Dentino and LaMonica ('luggers'), there is no denial that the evidence is sufficient that the defendants were engaged in a gambling enterprise in violation of Pennsylvania law.
All the defendants, with the exception of Dentino and LaMonica, were identified by one or more witnesses as workers at the game within the indictment period. Defendants' argument, like that of the defendant in Zambito, is that the government failed to prove that the defendants were aware of the interstate aspects of the unlawful activity -- that the defendants knew that as part of the conspiracy, one or more defendants would travel interstate to promote or facilitate the dice game. See United States v. Horton, 328 F.2d 132 (C.A. 3, 1964); United States v. Crimmins, 123 F.2d 271 (C.A. 2, 1941).
The knowledge of Barrow, Bonanno and Loscalzo (Pennsylvania defendants) of the interstate travel of employes in furtherance of and as part of the conspiracy has also been shown by sufficient evidence.
'* * * Proof of the requisite knowledge and intent on the part of the conspirators need not be made by direct evidence. Indeed, it is a rare case in which such evidence may be found. The conspiracy may be shown by circumstantial evidence or permissible inferences or deductions from the facts. * * *' United States v. Zuideveld, 316 F.2d 873, 878 (C.A. 7, 1963).
There was testimony indicating that Barrow was the top man on the chain of command. When the doorman was in doubt as to whether a player should be admitted, Barrow gave the word. Barrow was the final arbitrator of disputes at the tables, and was one of the few that used the 'office.' He took excess money from the tables and when the game at one table ended he brought the money from the table into the office. Barrow hired the one 'lugger' who testified. This fact, together with the evidence of his supervisory role, gives rise to a permissible inference that he was the one who hired the other 'luggers', and other employes, including those from New Jersey. Working together with the New Jersey employes intermittently for two years, staying in the Berkshire Hotel in Reading during period parallel to the stay of the New Jersey defendants in the Daniel Boone Hotel, Barrow was familiar with these employes. It would be almost impossible to conclude that Barrow had no knowledge of the travel by employes of the game from New Jersey to Reading, Pennsylvania.
The court in Zambito pointed out that 'Zambito knew that the writers under the Snyder-Fox regime had regularly done business in both states.' 315 F.2d at 268. This element is not present in the present case. But in this case we have the elements of hiring 'luggers' and other employes who came from New Jersey. Barrow, as one of the overmen, had extensive daily contact with the New Jersey employes. The court in Zambito relied upon daily contact and a pattern of interstate activity. These are present here. Finally, though not essential, was the announcement made by Loscalzo, the doorman, every time the witness Zangari was at the game, that cars were leaving for New Jersey. It is a fair inference that Barrow heard these announcements, audible throughout the room. If Barrow was the boss, he assigned the job of making these announcements to Loscalzo. One way or another, Barrow was aware these announcements were made. They performed the function of providing transportation to New Jersey players from the game. The soundest inference is that the paid 'luggers' did the driving.
The Daniel Boone Hotel records of Loscalzo's visits parallel those of other defendants, including those from New Jersey. Loscalzo was a doorman. He paid 'luggers', and it is a permissible inference that he paid New Jersey 'luggers' and must have known from whence they brought their passengers. It was Loscalzo who made the announcements, before and during the indictment period, that cars were leaving for New Jersey. He admitted all customers. In testimony admissible only against Loscalzo the witness Smith testified that the defendant told him that LaMonica was a 'lugger'. LaMonica was a resident of New Jersey. Loscalzo had a continual association with the game. Evidence of Loscalzo's part in the conspiracy and his knowledge of the interstate aspects is sufficient.
There was ample testimony placing Bonanno at the game regularly during the indictment period. Bonanno took soiled money to the bank, got change and larger denominations of bills for small bills and brought these to the premises of the dice game.
Bonanno relieved the doorman, walked around the dice game and was like an overseer. He was seen sitting with the doorman Loscalzo. He told one of the witnesses, a player, to move a car with New Jersey license plates from the vicinity of the dice game. In the spring of 1961, Bonanno helped the witness Johnson with his duties at the lunch counter. He was in a position to have heard the announcements made by Loscalzo that cars were leaving for New Jersey. From these facts the jury might well have concluded that Bonanno could not have avoided knowledge of the interstate elements of the conspiracy of which he was so obviously a part.
The issue of sufficiency of the evidence of guilt of LaMonica and Dentino is not one of knowledge of interstate travel. The evidence of their interstate travel is abundant. They were present at the game regularly over an extended period of time. The question is whether the evidence sustains a finding that they were members of the conspiracy. If the evidence sustains a conclusion that LaMonica and Dentino were employes of the dice game, the evidence of a conspiracy to violate 18 U.S.C.A. § 1952 is sufficient.
The evidence of Dentino's part in the enterprise is entirely circumstantial. It is, however, much more than mere evidence of association. Cf. Ong Way Jong v. United States, 245 F.2d 392 (C.A. 9, 1957). Dentino performed acts connecting him with the conspiracy which indicate he was more than a frequenter of a dice game, who voluntarily and gratuitously provided transportation for his friends. Dentino lived in Camden, New Jersey, drove to and from the game in Reading with passengers. He was seen entering the premises and in the game.
One witness testified he was a passenger in Dentino's car on several occasions. He rode from 4th and Spruce Streets, Camden, to the game in Reading with other passengers in Dentino's car. He knew Dentino only by nickname, and he had previously ridden from the same location in Camden to the game with a named co-conspirator. Both Dentino and the co-conspirator had left 4th and Spruce Streets about the same time. The witness never paid for his transportation -- a 60-mile trip each way -- and never spoke to Dentino about the latter's connection with the game. The little conversation in the car was dice game small talk. The witness knew only the nicknames of his fellow passengers. There is evidence that other 'luggers' were paid for their services.
Another witness had seen Dentino work at the dice tables. Dentino had a long and frequent association with a dealer at the game, Marzilli. We must agree with the government that the jury was entitled to conclude that one giving friends a ride to a dice game would not regularly leave from a set place at a designated time, travel 120 miles a night, without his 'friends' sharing the expenses -- 'friends' who knew neither each other nor him, nor spoke about anything but dice.
The conclusion that Dentino was connected with the dice game as a 'lugger' and not as a player is well supported.
The witness Wacks testified that between November 17, 1961, and January 20, 1962, he was at the game every weekend and sometimes on weekdays. During that period, with the exception of the week before the game finally closed, almost every time the witness was present he saw LaMonica at the game. The witness also saw LaMonica at the game before November 17, 1961. LaMonica told the witness he was being paid more than the Philadelphia 'luggers'; that he was paid twenty-five ant not twenty dollars a night even if he brought ...