The opinion of the court was delivered by: LORD, III
John Gatto, Dolly Stampone, Michael Hajdu, and Mario Mosiello were tried on a four-count indictment charging conspiracy and interstate travel in furtherance of racketeering enterprises. The only post-trial motions have been filed by defendant Mosiello, convicted on the three counts charged against him, who moves here for judgment of acquittal and, in the alternative, for a new trial. For the reasons given below, these motions are denied.
I. MOTION FOR JUDGMENT OF ACQUITTAL
The basis for the motion for judgment of acquittal is the alleged insufficiency of the evidence of the offense charged in the indictment. Defendant argues that the indictment charged interstate travel to promote an illegal horse-betting operation
and that proof was lacking that he conspired in this activity. Although it is impliedly conceded that there was sufficient proof of Mosiello's participation in an illegal lottery (numbers), it is argued that this kind of activity was not charged in the indictment. We believe that there was sufficient evidence that Mosiello was guilty of the crimes charged as to illegal horse-betting and also that the indictment charged crimes relating to both horse-betting and illegal lottery.
Mosiello asserts that "[the] conspiracy at trial was one of a horse-betting variety" because, he says, the indictment charges offenses relating to a "bookmaking" enterprise. Most of the evidence adduced at trial did, indeed, go to prove an illegal horse-betting operation. There was strong proof that defendants Gatto, Hajdu and Stampone were involved in illegal horse-betting in the Easton area, including Pennsylvania and New Jersey. This operation was conducted in two locations in Easton: 148 Canal Street and 108 South Third Street. In addition to the evidence of horse-betting, Gatto was shown to have been in possession of numbers paraphernalia at the time of his arrest.
The evidence against Mosiello was that he made frequent trips from New York City to visit Gatto in Easton; that Mosiello was present on the premises of 148 Canal Street on five or seven occasions; that after operations commenced at 108 South Third Street, the address of Dolly Stampone, in July of 1965, Mosiello made at least one visit there; that on the day of his arrest Mosiello had on his person the 'phone number of Dolly Stampone; that at that time he was in the company of Gatto; and that he then had with him $500 which he admitted receiving that day from Gatto, although he had claimed it was borrowed because of his wife's illness. This evidence alone would be insufficient to support an inference of guilt.
However, Mrs. Marion Alvin testified that from the fall of 1964 until July of 1965 she lived in an apartment on the second floor of 148 Canal Street. She said she was friendly with Gatto and was present on the first floor of the building on many occasions. It was she who testified that Mosiello was there on five or seven occasions. Mrs. Alvin testified that on one occasion Gatto introduced Mosiello to her at 148 Canal Street as "my boss from New York"; Mosiello responded: "She is alright. Why don't you get her to write numbers?" We think that this testimony in light of the other evidence of Gatto's involvement in illegal horse-betting and the other evidence of Mosiello's activities, was sufficient evidence for the jury to find Mosiello guilty of the horse-betting conspiracy and horse-betting offenses charged in the indictment. On the facts adduced at trial the jury could conclude that since Mosiello was Gatto's boss he was directing and was responsible for Gatto's activities, horse-betting an illegal lottery.
The fact that Mosiello suggested to Gatto that he enlist Mrs. Alvin in the writing of numbers does not mean that he was Gatto's boss only as to numbers activities. Nor does it matter that there was no direct evidence of Mosiello's involvement in illegal horse-betting. Proof of conspiracy, 18 U.S.C. § 371, "may rest as it frequently does, on indirect or circumstantial evidence." United States v. Barrow, 363 F.2d 62, 64 (C.A. 3, 1966), cert. den. 385 U.S. 1001, 87 S. Ct. 703, 17 L. Ed. 2d 541 (1967).
But even if the evidence were insufficient to establish Mosiello's guilt as to the horse-betting activities, it is undisputed that there was ample evidence that Mosiello was Gatto's boss in a numbers operation. The defendant argues, however, that the indictment does not charge the commission of crimes relating to numbers because of the use of the word "bookmaking", which, it is claimed, relates to horse-betting only and not to numbers.
The standards for judging the sufficiency of an indictment are as follows:
"* * * The sufficiency of an indictment is determined by practical rather than technical considerations. [case cited]. The test is not whether it could not have been more artfully and precisely drawn, [case cited], but rather its adequacy is measured by whether it contains the elements of the offense intended to be charged, whether it sufficiently apprises the defendant of what he must be prepared to meet, and in the event that subsequent proceedings are brought against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. [citing United States v. Krepper, 159 F.2d 958, 968 (C.A. 3, 1946), cert. den. 330 U.S. 824, 67 S. Ct. 865, 91 L. Ed. 1275 (1947)] * * *."
United States v. Wolfson, 294 F. Supp. 267 (D.Del.1968).
The indictment here charges the federal crime of traveling between states in order to further and carry on a bookmaking operation in violation of Pennsylvania law, 18 U.S.C. § 1952, to wit, 18 P.S. §§ 4601, 4602, 4603 and 4607, (Counts II, III and IV); a conspiracy to commit crimes under 18 U.S.C. § 1952 in violation of 18 U.S.C. § 371 (Count I); and aiding and abetting the crimes above in violation of 18 U.S.C. § 2 (Counts II, III and IV). All of these federal crimes are derived from the alleged violation of Pennsylvania law. 18 P.S. § 4601 prohibits "Lotteries"; Section 4602, "Traffic in Lottery Tickets"; Section 4603, "Common Gamblers"; and Section 4607, "Pool-selling and bookmaking." Although Sections 4603 and 4607 embrace both numbers and horse-betting, the first two sections deal only with illegal lottery. Thus, it cannot be said that the indictment charges only illegal horse-betting. Nor do we think that the defendant was prejudiced by the perhaps inartful use of the word "bookmaking" (a bookmaker is "one that determines odds and receives and pays off bets." Webster's Third International Dictionary ). The indictment clearly charges interstate violation of Pennsylvania laws treating solely of lottery. Since horse-betting would not have been a violation of these laws, the defendant must certainly have known that he was being charged with something other than horse-betting, namely, lottery activities. If specificity had been wanting, the defendant was free to move for a bill of particulars.
Assuming that there was a failure of proof linking him with the horse-betting operation (and we do not think there was), and that the evidence of an illegal lottery was sufficient (not here in dispute), did Mosiello suffer harm because the conspiracy charged was engaged in two kinds of illegal activity and not just one? We think not. The fact that the government's proof of lottery activity may have failed as to Stampone and Hajdu does not affect the indictment. Even if we were to read the indictment as charging two conspiracies arguendo, we think that Mosiello was not prejudiced under the circumstances of this case, for it cannot reasonably be said "that the proof operated to prejudice his case, or that it came as a surprise; and certainly the fact that the proof disclosed two conspiracies instead of one, each within the words of the indictment, cannot prejudice his defense of former acquittal of the one or former conviction of the other, if he should again be prosecuted." Berger v. United States, 295 U.S. 78, 83, 55 S. Ct. 629, 631, 79 L. Ed. 1314 (1934).