The opinion of the court was delivered by: BECHTLE
The above four defendants have been charged in a two-count indictment with violation of Federal gambling laws. Count I of the indictment, based on 18 U.S.C. § 371, charges defendants Garramone, Lumio, Catalano and Tramontina with conspiracy to violate 18 U.S.C. § 1952. In Count II, defendants Garramone, Catalano and Tramontina are charged under § 1952 with the substantive offense of using a facility in interstate commerce with the intent to carry on or facilitate the carrying on of an unlawful activity. The parties have stipulated to the facts and testimony upon which the criminal liability of the four defendants shall be determined. The sole function of this Court is to determine whether the stipulations submitted establish beyond a reasonable doubt the guilt of the defendants.
To establish defendants' guilt, the Government relies primarily upon evidence derived from a court-ordered electronic surveillance of a telephone subscribed to by defendant Garramone and located at defendant Garramone's residence in Springfield, Pennsylvania. Transcripts of 21 conversations which are representative of the gambling related conversations intercepted during the period from December 1 to December 11, 1972, have been admitted into evidence by stipulation of the parties involved. Additional evidence was derived from a "touch-tone decoder" device placed on defendant Garramone's telephone during the same period, also pursuant to Court order. This device provided a record of the outgoing numbers dialed from defendant Garramone's telephone.
The parties have also stipulated that Special Agents of the Federal Bureau of Investigation would testify that they can identify the voices of the four defendants as being the voices of those individuals appearing on the various magnetic tapes of the transcribed conversations on the dates and at times set forth in the stipulations.
The Government has also offered the stipulated expert testimony of Special Agent R. Phillip Harker, who is assigned to the Gambling Section of the Federal Bureau of Investigation Laboratory in Washington, D.C. Agent Harker's testimony, which describes in significant detail the gambling operations in which the four defendants are involved is based on his expert analysis of the 21 transcribed conversations which have been admitted into evidence.
To prove a violation of 18 U.S.C. § 1952, the Government must establish three basic elements:
(1) That the defendants Garramone, Catalano, and Tramontina used an interstate facility;
(2) That they used it with an intent to carry on or facilitate the carrying on of an unlawful activity; and,
A review of the evidence presented to the Court in the form of a stipulation to the facts and testimony which would have been adduced had this case proceeded to trial, and the memoranda of law submitted by counsel, has convinced the Court that defendants Garramone, Catalano, and Tramontina are guilty beyond a reasonable doubt of violating 18 U.S.C. § 1952. The evidence clearly establishes the essential elements necessary to support a conviction of the above three defendants under § 1952.
As previously discussed, Count I charges all four defendants with conspiracy to violate 18 U.S.C. § 1952. To establish a conspiracy under § 371 of Title 18, the Government must prove that the four defendants entered into an unlawful agreement to violate 18 U.S.C. § 1952 and that thereafter at least one overt act in furtherance of the unlawful conspiracy was performed by one or more of the co-conspirators. Based on the stipulated evidence, I find that the defendants listed in Count I of the indictment are guilty of conspiracy to violate § 1952 beyond a reasonable doubt. The unlawful agreement and the overt acts performed in furtherance of such agreement have been proven through the number and content of the telephonic communications among the co-conspirators and the unlawful use of the information received over the telephone in the acceptance and placement of wagers, as fully described in the stipulated expert testimony of Special Agent R. Phillip Harker.
Defendants raise two legal contentions in support of their motion for a judgment of acquittal. Initially, the defendants submit that 18 U.S.C. § 1952 does not apply to the facts of this case. Section 1952 provides, in relevant part, as follows:
"(a) Whoever . . . uses any facility in interstate or foreign commerce, including the mail, with intent to --
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, . . . shall be fined not more than $10,000 or ...