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United States v. Ceraso

August 16, 1972

UNITED STATES OF AMERICA
v.
THOMAS ANTHONY CERASO, APPELLANT IN NO. 72-1279, ET AL. APPEAL OF BEVERLY CERASO, IN 72-1280. APPEAL OF JOHN E. TROUTMAN, IN 72-1284.



Author: Rosenn

Before ALDISERT, MAX ROSENN and HUNTER, Circuit Judges.

Opinion OF THE COURT

MAX ROSENN, Circuit Judge.

Appellants Thomas Anthony Ceraso, Beverly Ceraso and John E. Troutman were tried to a jury and convicted under a two-count indictment charging them with conducting a book-making operation in the Williamsport, Pennsylvania, area in violation of 18 U.S.C. § 1955*fn1 and with conspiring for that purpose as prohibited by 18 U.S.C. § 1371.*fn2 All three appellants submitted motions for a new trial, and the Cerasos also filed a motion for acquittal. The district court denied the requests, and we affirm.

The Cerasos and Troutman have filed separate briefs on this appeal, so that some questions have been raised only by the Cerasos or Troutman, but not by both. However, they join in their first contention that the Government failed to prove a violation of Section 1955 and that the verdict was against the weight of the evidence. On reviewing the motion for acquittal, "[the] verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government...." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Blair, 456 F.2d 514, 517 (3d Cir. 1972).

Most of the Government's evidence at trial came from recordings of telephone conversations authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. § 2510 et seq. The telephones, which were subscribed to by Thomas Ceraso, were monitored between February 17 and February 21, 1971. During that time, appellants, along with others, placed and received calls distributing the betting "line"*fn3 and receiving wagers on various sporting events.

At trial, tapes of the conversations were played for the jury and Special Agent Charles Fahien of the FBI identified the voices that had been recorded. The Cerasos regularly took bets, and Troutman regularly relayed the line to them. The Cerasos then transmitted the information to others. In addition, there was a regular series of lay off bets between the Cerasos and Troutman.

Other indicted co-conspirators were shown to be involved in the operation. In one taped conversation, Thomas Ceraso reported the status of the operation to Lloyd Bosch, and received instructions from him. Joseph Casale, the bartender at the Cerasos' bar, Frankie's Tavern, was overheard receiving the "line" from Beverly Ceraso, passing it on to gamblers, and taking bets. These bets were laid off to James Berrigan, and the tape of this conversation revealed that Casale requested Berrigan to give Ceraso some "action" for a commission.

The Government also produced additional evidence of the book-making operation. Thomas Ceraso's telephone toll records were introduced, as were various basketball news sheets and schedules found in a search of the tavern. It was also shown that some of the long-distance calls were billed to William Becker, whose telephone records were seized and introduced. An FBI agent testified that he had received calls on Troutman's telephone when they arrested him. During the period three callers asked for the line and four placed bets. Finally, Special Agent Boyd testified that on February 20, 1971, the total bets placed on three telephones subscribed to by Thomas Ceraso were $6230, including $500 placed on outgoing calls.

In order to prove that Section 1955 was violated, the Government must show not only that there was a gambling operation in violation of state law, but that it was conducted, financed, managed, supervised, directed, or owned by at least five people and that it operated substantially continuously for at least thirty days or had more than $2000 gross revenue in any single day.

Appellants first argue that the Government failed to show the requisite five people conducting, financing, supervising, directing, or owning the operation. They point out that when the statute originally passed the Senate on January 26, 1970, it stated that five people need merely participate in the gambling. However, that language was later dropped in the final bill, indicating that anyone merely placing a bet could not be counted as one of the five people who had to be involved in the operation. Starting from this point, appellants argue that at best the Government proved that only two people, Thomas and Beverly Ceraso, conducted the bookmaking.

The evidence indicated that a jury could reasonably have found otherwise. Troutman and Joseph Casale both gave information on the "betting line" and took bets. Those acts are clearly within the concept of conducting a bookmaking operation. Although "conduct" is nowhere defined in the statute, the authors of simultaneously-enacted 18 U.S.C. § 1511, which was to parallel Section 1955, intended "conduct" to mean any participation in the operation of a gambling business. H.R.Rep.No.91-1549, 91st Cong. 2d Sess. (1970), 1970 U.S.Code, Cong. & Admin.News, pp. 4029-30. See, United States v. Becker, 461 F.2d 230, at 232 (2d Cir. filed May 30, 1972), United States v. Riehl, 460 F.2d 454 (3d Cir. filed May 9, 1972).

Becker's payment of the telephone bills could have reasonably been found to have made him one of the financial backers of the operation, or at least a participant, and Bosch's conduct in receiving information and giving instructions to Thomas Ceraso gave the jury evidence of his supervising or managing the operation.

The appellants next argue that the district court was in error in charging that the "gross revenue" specified in the statute means the total of the wagers placed during a day. They contend that the proper definition of the term is the amount of profit received during the period. If they are correct, then the Government failed in its proof on this ...


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