APPEAL FROM JUDGMENT OF CONVICTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. (Criminal Action No. 2257).
Aldisert, Weis and Garth, Circuit Judges.
Appellant, Anthony P. DiGiacomo (DiGiacomo), and five others were charged in a two-count indictment with violating 18 U.S.C. § 1955*fn1 and with conspiring to violate § 1955 under 18 U.S.C. § 371.*fn2 After Count I (charging the substantive violation of the federal anti-gambling statute under § 1955) was dismissed by the Government,*fn3 DiGiacomo in a non-jury trial was convicted of Count II (the conspiracy charge) and sentenced.*fn4 The sole issue on this appeal is whether or not the evidence at trial was sufficient to prove the requisite number of persons to be involved in a gambling operation (five) in order to sustain a conviction of conspiracy to violate § 1955. Inasmuch as we conclude that the evidence only reveals that four (rather than the required five) were to be involved in the gambling operation, we are obliged to reverse DiGiacomo's conviction.
Count II of the indictment under which DiGiacomo was convicted charged that DiGiacomo and five other named defendants*fn5 as well as "others to the Grand Jury unknown" conspired to violate § 1955 in that they
would conduct, finance, manage, supervise, direct, and own an illegal gambling business which was in violation of the laws of the State of Delaware, of the receiving, recording, and registering bets and wagers upon the result of trials and contest in violation of Title 11, Delaware Code, Sections 665, 669 and 670A and which involved at least five persons, and conducted, financed, managed, supervised, directed, and owned such business, and which had been in substantially continuous operation for a period in excess of 30 days, and which had grossed in excess of $2,000 in any single day, all in violation of Title 18, United States Code, Section 1955.
Appellant DiGiacomo focuses his attack upon the Government's failure to prove his participation in a conspiracy that, if successful, would meet the requirements of subsection (b)(1)(ii) of § 1955.*fn6 DiGiacomo claims that the record is devoid of competent proof that at least four other persons were intended or expected to participate in the gambling enterprise.*fn7 DiGiacomo challenges as clearly erroneous the district court's finding that:
19. During that period [end of 1971 to early May of 1972] Mr. DiGiacomo was aware of the participation of at least the following individuals in the Pepe gambling business: himself, Michael Pepe, Mr. Pepe's line source, Edward Carucci and Michael Niland.
DiGiacomo argues that the evidence in the record cannot support his reasonable expectation or anticipation that there existed or would exist a line source (independent of Pepe) who would constitute the "fifth" person to be involved in the gambling business.
At the outset of our analysis, we note that the district court utilized the correct standard in determining whether or not the evidence proved a conspiracy to violate § 1955. In conclusion of Law No. 5, the district court stated:
"Where one is charged with conspiracy to violate Section 1955, however, the essence of the offense is an agreement and one cannot be convicted unless there was an agreement to work towards the establishment or maintenance of a gambling business of a kind which, if conducted, would violate Section 1955. Accordingly, in order to convict a defendant for conspiring to violate Section 1955, it must be proven beyond a reasonable doubt that the defendant wilfully reached a common understanding with one or more of the co-conspirators named in the indictment to work towards the maintenance of an illegal gambling business which he anticipated would have five or more participants. . . . It is not necessary that the defendant be familiar with the identity of, or all of the activities of, the other participants in the gambling ...