The opinion of the court was delivered by: MARSH
"1. The verdict was against the evidence.
"2. The verdict was against the weight of the evidence.
"3. The Court erred in each of its pretrial rulings and trial rulings as objections of the defendants appear in the transcripts and arguments to be filed."
In our opinion the motion should be denied.
The government had the burden of proving to the jury beyond a reasonable doubt that each of these defendants was one of five or more persons conducting an illegal gambling business which remained in substantially continuous operation for a period in excess of thirty days or had a gross revenue of $2,000 in any single day.
United States v. Ceraso, 467 F.2d 653 (3d Cir. 1972); United States v. Williams, 459 F.2d 909 (6th Cir. 1972). Since the jury returned verdicts of guilty, the government is entitled to have the evidence viewed in a light most favorable to it, and have the benefit of all legitimate inferences which might reasonably be drawn from the proven facts. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Pizzi, 470 F.2d 681, 682 (3d Cir. 1972); United States v. Hamilton, 457 F.2d 95, 99 (3d Cir. 1972), and cases cited therein. So viewed, the evidence at trial established the following:
Beginning sometime in January, 1971, Samuel Levine began operating as a lay-off numbers bookmaker.
During the period from January, 1971 to July, 1971, he maintained separate lay-off accounts on behalf of Robert Ciamacco, Ned Cole and Samuel Levy, conducting his day-to-day business with them over the telephone located in his home. The taped telephone conversations heard at trial showed that Levine accepted numerous numbers bets from Robert Ciamacco
and from Ned Cole's employee, Judith Maker,
and discussed the status of their accounts with them.
In addition, Levine accepted numerous numbers bets from William Paul Kohne for Sam Levy's account.
Levine laid off his larger bets via telephone with Justina Cahill, admittedly a lay-off bet receiver employed by Tony Grosso.
Levine explained that his function as a lay-off bookmaker was to accept responsibility for paying off on the numbers booked with him, thereby insuring the person laying off against a large loss if a particular number won. In return for accepting these risks, Levine would charge the person laying off 70% of the total amount wagered with him, but it was also agreed that the person on whose account a bet was laid off was entitled to a 50% interest in any profits Levine realized from all bets laid off on that account. This was called a "bankroll" arrangement by the parties.
Levine's business, as described above, was in substantially continuous operation from January to July, 1971, and the defendants were participants in that business.
These defendants attack the weight and sufficiency of this evidence contending at oral argument and in their joint brief that there was no evidence that Robert Ciamacco was accepting numbers bets from others and passing them on to Levine; that, in any event, laying off bets is not a violation of Pennsylvania law, and, therefore, cannot be punished under the federal statute; that the evidence showed that the defendants were involved in separate businesses, none of which involved five or more persons; and that the statute, 18 U.S.C. § 1955, is not aimed at the small gambling operation shown in this case. In addition, defendants assert that the pretrial ruling on the admissibility of the wiretap evidence was erroneous. We consider these contentions seriatim.
The contention that no evidence was presented proving that the defendant Ciamacco was accepting the numbers bets he called into Levine from other individuals, and, therefore, the evidence was consistent with his being a mere bettor, is without merit. The taped conversations involving Ciamacco contain numerous bets for varying amounts.
It is inconceivable that Ciamacco was placing all these bets for himself.
Furthermore, Sam Levine, who qualified as a gambling expert, was obviously of the opinion that Ciamacco was laying off bets he had received from other people,
and Ciamacco's lay-off bets fluctuated in a manner consistent with Levine's testimony concerning traditionally heavy and light days in the numbers business, i.e., heavy weekly play on Monday and light play on the race numbers on Saturday. In view of these impressive circumstantial facts, the jury was justified in drawing the inference that Ciamacco was accepting numbers bets from other people and laying some of them off with Levine; their judgment will not be disturbed.
Nor can we agree with the defendants' alternative contention that even if the defendants were laying off bets they received from other people with Levine, this was not a violation of the law of Pennsylvania. While the Pennsylvania lottery law, 18 Purdon's Pa. Stat. Ann. § 4601, does not make it a crime to place a bet with a numbers writer, it does make it a crime to be "concerned in" or "substantially engaged in" conducting a lottery. Commonwealth v. Bufalini, 200 Pa. Super. 85, 92, 186 A. 2d 645, 648 (1963); Commonwealth v. Paul, 177 Pa. Super. 289, 294, 111 A. 2d 374 (1955); Commonwealth v. Wade, 156 Pa. Super. 88, 91, 39 A. 2d 460, 461 (1944). Since the circumstantial evidence clearly supported the inference that the bets both defendants placed with ...