Petition — Feliciano v. United States

Supreme Court brief1977

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life ‘Supreme C

Pes ourt, U. §,

“Me OR Ty ED

NOV on 1976

IN THE

Supreme Court of the Cnited States

OCTOBER TERM, 1976

NO. 76-7114

BENJAMIN MICHAEL FELICIANO,

JESSE DAVIDSON,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

H. RUSSELL SMOUSE

1700 First National Bank Building

Baltimore, Maryland 21202

PETER G. ANGELOS

233 Equitable Building

Baltimore, Maryland 21202

Attorneys for Petitioners

TABLE OF CONTENTS

Page

ES LC IEE OTe OR OE 1

EE Cita ietiiiedndinsecbbeeiitiiticibiinisiededinidistncstbienninese l

I ee ART PLR TE 2

Statutes and Regulations Involved ...................:cccceeeeee es 2

IEEE TE ST IID: cncccicndniasdsdtincceinidainésordsensedensecess 2

Reasons for Granting the Writ .........ccccccccccscccsccccsccscsees 7

Conclusion .......... Sicllasishsiaedladiieeiliaicniindisiehaninnicndiieieiadtiideidenmiined 24

Appendix:

Opinion of the United States Court

of Appeals for the Fourth Circuit 2.000000... 1A

Statutes and Regulations Involved ......................:c000e 12A

AUTHORITIES CITED

CASES: .

SEE i Gg ee ies ee I Waccstgactencccncomicncenics 16

Bollenbach v. U.S., 326 U.S. 607, 612 (1946) .........eec eee 10,11

Cary v. Curtis, 44 U.S. 236, 245 (1845) ......cceeeeceeeeeeee ee 16

Direct Sales Co. v. U.S., 319 U.S. 703, Til (1943) ........... 20,24

Epstein v. U.S., 174 F.2d 754, 768, 769 (6th Cir.,

SIE: cananninininpdadinsevinethedtemereniooneene a >

Griego v. U.S., 298 F.2d 845 (10th Cir., 1962) .............. 11

Ingram v. U.S., 360 U.S. 672, 677-678 (1959) .....-2eeeeeeeee 14

Kotteakos v. U.S., 328 U.S. 750 (1946) .......0cceceeeeeeeeeeees 15

Lambert v. California, 355 U.S. 225 (1957) ...-..secceceeeeees 20

Lockerty v. Phillips, 319 U.S. 182, 187188 (1943) ............ 16

Ong Way Jong v. U.S., 245 F.2d 392, 394 (9th

A MEE edinnideisdtimanidensieendndsos 14

Perez v. U.S., 297 F.2d 12, 16 (Sth Cir., 1961) .............2+. 1]

Perry v. U.S., 422 F.2d 697 (D.C.Cir., 1969) .............0000 11

Rewis v. U.S., 401 U.S. 808 (1971) ..............ececeeseeees 16,21,23

Strauss v. U.S., 376 F.2d 416 (Sth Cir., 1967) ................ 12

U.S. v. Altobella, 442 F.2d 310 (7th Cir., i971) «0.0... 21

U.S. v. Archer, 486 F.2d 670 (2d Cir., 1973) ................. 21

Cases — Continued

U.S. v. Barnes, 383 F.2d 287, 289-93 (6th Cir., ne

1967) cert. denied 389 U.S.

EE ARR, 21

U.S. v. Borelli, 336 F.2d 376, 384 (2d Cir., 1964) .......... 15

U.S. v. Canella, 63 F. Supp. 377 (S.D.Calif., 1945) ........ 13

U.S. v. Cirillo, 499 F.2d 872 (2d Cir.) cert. denied

CE, GI IID sicitenttcsmsnsitinsents. 14

U.S. v. Dumaine, 493 F.2d 1257 (Ist Cir., 1974) .....0..200e. 20

U.S. v. Eller, 14 F.Supp. 284, 285 (M.D.N.C., 1953) ....... 19

U.S. v. Falcone, 311 U.S. 205, 207, 210 (1940) ............... 14,15

U.S. v. George, 477 F.2d 508, 513 (7th Cir., 1973) .......... 11

U.S. v. Gisehaltz, 278 F.Supp. 434, 437 (S.D.N.Y..,

ER STE See eae 19,20

U.S. v. Henry, 52 F.Supp. 161 (D.Nev., 1943) ...........0005- 13°

U.S. v. Kenofskey, 243 U.S. 440 (1917) .......cccceceeeeeeeeeees 22

U.S. v. LeFaivre, 507 F.2d 1288 (4th Cir., 1974) ............ 21,23

U.S. v. Leggett, 269 F.2d 35, 37 (7th Cir., 1959) .......... 22

U.S. v. Lichota, 351 F.2d 81, 89 (6th Cir., 1965) ............. 11

U.S. v. Markee, 425 F.2d 1043, 1046 (9th Cir., 1970) ....... 22

U.S. v. Maze, 414 U.S. 395, 399 (1974) oo..ecceecceeeeeeeeeeeee 23,24

U.S. v. McCormick, 442 F.2d 316 (7th Cir., 1971) ............ 21

U.S. v. Mogavero, 521 F.2d 625 (4th Cir., 1975) ............. 11

U.S. v. Newman, 490 F.2d 139, 142, 143 (3rd Cir.,1974)..... 22

U.S. v. Painter, 314 F.2d 939, 943 (4th Cir., 1963) .......... 11

U.S. v. Pinto, 503 F.2d 718, 724 (2d Cir., 1974) 0.0.0.0... 17

U.S. v. Regent Office Supply Co., 421 F.2d 1174, i180 ......

(2d Cir., 1970) ............ 11

U.S. v. Stromberg, 268 F.2d 256 (2d Cir., 1959) ............ 14

U.S. v. Teed,\85 F.2d 561, 563 (9th Cir., 1950) ............... 13

U.S. v. Wiltberger, 18 U.S. 76, 95 (1820) oo... cceececccceeees 16

STATUTES:

i ne 2,5,22

We ID siteeisindesidsidcstishitbintsbidieccnmenctit 2,5,7,10,15,16

BO ee ccceedtbiieteisienitaciaiihedicliabiciicaniiiimthasiadls otitiihiabess 2,5

Statutes — Continued

Page

EE I Re AN SOR MS RE pee 2,5,23

18 U.S.C. §§ 1952 (a) Se TC iccnsdiccnctcconcheneh 2,5,21,23

pS le ee ee ae 2,18,19

a 2,5,18,19,20

EE Se TE ee cee 1,2

ye FL CRE EERE ea SL an Oe 2,19

MD. CRIM. LAW. CODE ANN. § 24 ...............0cccceeeeeeeee 2,5

LEGISLATIVE MATERIALS:

Senate Report No. 2003, pp. 4,5 (87th Cong.

2d Sess. 1962) 108 Congressional Record

ig ARE PEE FS RCD EET eae ne on 17

Senate Report No. 593, pp. 2,3 (88th Cong. Ist Sess.

1963) 110 Congressional Record 920, 921, 922

NPT asihtecdeukddiiincthedbdicatadeibodmlidd sdb daddaeiiceneis 15,17

United States Code and Administrative News,

p. 2251, 88th Cong., 2d Sess. (1964) .........c.c eee eee 15

on the

Supreme Court of the United States

OCTOBER TERM, 1976

BENJAMIN MICHAEL FELICIANO,

JESSE DAVIDSON,

Petitioners,

UNITED STATES OF AMERICA,

, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

The Petitioners, Benjamin Michael Feliciano and Jesse

Davidson, respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the Fourth Circuit, entered on October 21, 1976.

OPINION BELOW

The Judgment and Opinion of the United States Court

of Appeals for the Fourth Circuit entered on October 21,1976,

which is presently unreported is set forth in the Appendix

(pp. LA - pp. IIA).

JURISDICTION

Jurisdiction to review the judgment entered by the United

States Court of Appeals for the Fourth Circuit on October 21,

1976, is invoked under 28 U.S.C. §1254 (1).

QUESTIONS PRESENTED

1. Did the trial court err in its charge to the jury as

to what it was required to find under Count I, and in failing to

charge in the context of a “fixed” horse race as to Counts VIII,

IX and X,and were the charges so misleading and confusing

as to constitute reversible error?

2. Did the evidence establish bribery under 18 U.S.C.

§224 and was the evidence sufficient to connect the jockey

defendants with a conspiracy to bribe?

3. Is horse racing ‘a sporting contest within the

meaning of that term as used in 18 U.S.C. §224 prohibiting

bribery in sporting contests?

4. Does 26 U.S.C. §6041 require the name of the

true winner and is that section so impermissibly vague as to

be violative of due process and was there a failure of proof

of intent as to that Count?

5. Did the Government prove use of interstate

facilities in interstate commerce?

6. Did the Government prove that the jockey

defendants willfully caused interstate travel?

7. Does 18 U.S.C. §1343 require that the interstate

use of a telephone was caused by the jockey defendants for

the purpose of executing a scheme or artifice to defraud?

STATUTES AND REGULATIONS INVOLVED

The pertinent portions of 18 U.S.C. §2, §224, §371,

§1343, § 1952 (a) (1) and (2) (b), 26 U.S.C. §6041 and §7206

(2), 28 U.S.C. §1254 (1), 26 C.F.R. §1.6041.5 and MD. CRIM.

LAW CODE ANN. §24 are set forth in the Appendix (pp. 12A-

16A).

STATEMENT OF THE CASE

On February 14, 1975, Eric Walsh ', Benjamin Feliciano,

Jesse Davidson and Luigi Gino (hereinafter often referred to as

IEric Stephen Walsh died while the appeal to the U. S. Court

of Appeals for the Fourth Circuit was pending and an order

was entered abating the judgment of his conviction and dis-

missing the indictment against him. However, for purposes of

clarity and continuity, he will be referred to in this petition as

one of the jockey defendants.

the jockey defendants) were scheduled to ride horses in the

9th race at Bowie Race Course at Bowie, Maryland. Each

of these defendants, according to the testimony, either did not

like the horse he was scheduled to ride or had no confidence

in it.

In preparing for the race, the jockey defendants indiv-

idually looked at the Daily Telegraph, a racing newspaper setting

out past performance records of all the horses scheduled in

each race on the card for the day. Recognizing that their

horses did not look like factors in the race, based on the Daily

Telegraph and what was known to them individually, jockey

defendants Gino and Feliciano accurately guessed that the

horses 8, 12 and 2 looked like the horses most likely to

figure in the race. This guess was arrived at by the simple

process of recognizing horses which because of one problem or

another did not look like factors in the race.

While the horse ridden by unindicted co-conspirator,

Carlos Jimenez, did not look impressive on paper and was

neither a betting or program favorite, the odds on that horse

making it one of the long shots, Feliciano nevertheless asked

Jimenez whether he liked his horse. Although Jimenez orig-

inally testified that he liked his horse, he subsequently admitted

that he did not in fact like his horse and that since his horse

could not have won the race, he did not have to “hold” or

“pull” his horse. Further, Jimenez testified that he rode the

race to the best of his ability and that in his opinion the

race was not “fixed”.

Money for the purchase of 38 box Trizacta tickets each

costing $18.00 was given by the respective jockeys, in the case

of Jimenez by his valet Donald Teague, to Gino. This type

ticket requires picking the three horses which finish in the

money but does not require that they be picked in the order

of finish. After receiving the money from the jockeys, Gino

in turn gave it to Ernest Davidson, the brother of Jesse

Davidson, who in turn purchased the tickets and gave them to

Gino after the 9th race. The tickets were then distributed to

the various jockeys who purchased them.

With regard to the race itself, Merrall MacNeille, one of

the track stewards, testified that after viewing the race on film,

only jockey Baboolal’s ride of the #1 horse, Peace Frog,

seemed unusual. Jockey Baboolal explained his ride the next

day to the satisfaction of the track stewards. Not until four

days later after receiving a verbal list of jockeys from the track

security agent, Paul Berube, whom he thought merited “parti-

cular attention” and after track supervisors noticed that thirty-

nine out of the total sixty-two winning eighteen dollar tickets

had been purchased at one window in the clubhouse did the

stewards decide again to look at the film of the 9th race.

Furthermore, whereas the patrol judges make a running

commentary on the day of the race and on the day following

the race are required to make a written report, there was no

report by any such judge as to any irregularity during the 9th

race. Additionally, there was no repoit of irregularity received

from the jockey room custodian, the paddock judges or the

starter with respect to the 9th race. Gregg McCarron, a highly

successful and respected rider, observed nothing in the race

to indicate that any of the jockeys deliberately hampered the

performance of their horses. Experienced trainers, such as

Bernard Bond and Nancy Heil, testified that they observed the

race and saw nothing unusual.

Although the jockey defendants admitted the purchase of

Trizacta tickets other than on the horses which they rode and

recognized that this was a violation of the rules of the

Maryland Racing Commission, they vigorously denied that they

ever attempted to “fix” the 9th race or that the 9th race was

“fixed”.

Meanwhile, the jockey defendants were attempting to

cash their winning tickets. On Sunday, February 16, Walsh,

Jimenez and Jesse Davidson met at Walsh’s apartment to discuss

how the tickets could be cashed. Although Jimenez had not

experienced difficulty with the police in getting two tickets

cashed, Walsh and Gino had been unable to cash their tickets.

In fact, Gino had sought the aid of his friend, Heddy Sue Way

and her sister Janet Gayle Harless, but they had been unable

to cash his tickets despite several attempts.

On Friday, February 14, Walsh had telephoned William

Michael Vuotto to see if he knew anyone who could cash some

tickets. Walsh and Vuotto agreed to meet the next morning,

and Vuotto received fifteen tickets at that time. Vuotto

placed the tickets in a safe deposit box and then went to Ocean

City, Maryland. On February 17, Vuotto attempted unsuccess-

fully to contact Defendant Edward Bishop.

On Tuesday, February 18, Vuotto contacted Bishop

and asked him if he knew anyone who could cash some tickets.

Bishop called Vuotto later to say that he would send someone

within the next day or so to cash the tickets.

On Wednesday, February 19, Vuotto received nineteen

additional tickets from Walsh, and then went to the track that

afternoon where he met Bishop and gave him the tickets.

Despite the arrangements for the transfer of monies and tickets,

Bishop returned one hour later and gave Vuotto the thirty-four

tickets and said that his people had been unable to cash them.

On February 19, 1976, Defendants Nicholas lacona and

Louis J. Summa appeared at Bowie Racetrack, each in posses-

sion of seventeen winning tickets from the 9th race on February

14, 1976. They were informed by Alfred M. Hinsley, a

Thoroughbred Racing Protective Bureau Detective, that they

would have to see Mr. Paul Berube. Defendants lacona afd

Summa then approached Mr. Berube who informed them that

the tickets could not be cashed because they were the subject

of a pending investigation.

That evening, Vuotto retumed the tickets to Walsh’s

apartment and the tickets were subsequently destroyed.

On May 2!, 1975, a federal grand jury for the District

of Maryland retumed a thirteen count indictment charging

Eric Steven Walsh, Luigo Gino, Benjamin Michael Feliciano and

Jesse Davidson with violation of 18 USC §371, Conspiracy to

Commit Sports Bribery; 18 USC §224, Sports Bribery; 18 USC

§2, Aiding and Abetting; 18 USC §1952 (a) (1), Interstate

Transportation in Aid of Racketeering; Art. 27, Md. Annot.

Code §24; 18 USC §1343, Fraud by Wire and 26 USC §7206

(2), Conspiracy to Make Fraudulent Representations to the

Internal Revenue Service. Nicholas Anthony lacona, Louis J.

Summa and Edward Bishop were also joined as accused in

Count Seven of the indictment charging violation of 26 USC

§7206 (2), Conspiracy to Make Fraudulent Representations to

the Internal Revenue Service. All defendants except Edward

Bishop appeared for Arraignment on June 2, 1975, entering

pleas of not guilty as to each and every count of the indictment.

Edward Bishop was arraigned and entered a plea of not guilty

on June 5, 1975.

Trial was held before the Honorable Joseph H. Young,

commencing September 4, 1975. At the outset of the trial,

d-fendants Bishop, Summa and lacona moved for a severance

of their case from the case of the jockey defendants, said

Motions being denied. At the close of the Government’s

case on September 10, 1975, all defendants moved for a

Judgment of Acquittal on ali counts. Upon the Oral Motion

of the Government, Counts Twelve and Thirteen were dismissed.

Upon Defendant’s Motion, Count Eleven was also dismissed.

The case was concluded on September 16, 1975, and each

defendant renewed Motions for Judgment of Acquittal on all

remaining counts. These Motions were denied.

The jury returned a verdict of guilty against jockey

defendants Walsh, Feliciano, Gino and Davidson on Count One,

conspiracy to commit sports bribery; Counts Five and Six,

interstate transportation in aid of racketeering; Count Seven,

conspiracy to make fraudulent representations to the Internal

Revenue Service; Counts Eight, Nine and Ten, fraud by wire.

Defendants lacona, Summa and Bishop were also found guilty

on Count Seven.

On November 28, 1975, jockey defendants Walsh,

Feliciano, Gino and Davidson were sentenced as follows:

“committed to the custody of the Attorney General

or his authorized representative for imprisonment for a

period of three (3) years and to pay a fine of One

Thousand Dollars ($1,000) as to each of Counts Nos. 1,

5, 6, 7, 8, 9 and 10 on condition that defendant be

confined in a jail-type or treatment institution for a

period of six (6) months; service of remainder of sentence

of imprisonment only is suspended and defendant is

placed on probation for the period of thirty (30) months

upon the usual conditions of probation. Sentence imposed

as to each of Counts Nos. 5 through 10 to run concurrently

with Count No. | and fine imposed as to each of Counts

Nos. 5 through 10 to be non-cumulative with Count No. 1

making a total of six months imprisonment, 30 months

probation and One Thousand Dollars ($1,000) fine.”

On October 21, 1976, the United States Court of Appeals

for the Fourth Circuit in Nos. 76-1094 and 76-1095 affirmed

the convictions of the Petitioners herein.

REASONS FOR GRANTING THE WRIT

THE COURT ERRED IN THE CHARGE TO THE JURY AS TO THAT

WHICH THE JURY WAS REQUIRED TO FIND TO CONVICT UNDER

COUNT | AND FURTHER ERRED IN FAILING TO CHARGE IN THE

CONTEXT OF A “FIXED” RACE, UNDER COUNTS VIII, IX AND

X, AND IN CHARGING IN TERMS OF A VAGUE, IMPRECISE AND

INADEQUATE STANDARD AS TO THE REQUISITE ELEMENTS OF

THE TYPE OF FRAUD CHARGED: THAT THE CHARGE WAS SO

MISLEADING AND CONFUSING AS TO CONSTITUTE REVERSIBLE

ERROR

There was no violation of 18 U.S.C. §224 as charged in

Count I if the jockey defendants conspired to fix the race.

There must have been an agreement by two or more of the

defendants to bribe a participant in the 9th race at Bowie Race

Track on February 14, 1975, as evidenced by 18 U.S.C. §224

which provides in pertinent part:

“Whoever carries into effect, attempts to carry into

effect, or conspires with any other person to carry into

effect any scheme in commerce to influence, in any way,

by bribery any sporting contest ***.” (Emphasis added).

The government sets up in the indictment conspiracy to

bribe Carlos Jimenez as the proscribed conduct. More

specifically, Count I charges that the jockey defendants conspired

to commit sports bribery, to wit, the bribery of Carlos Jimenez.

It was this contention by the government which gave the

trial court subject matter jurisdiction. Moreover, the govern-

ment conceded in rebuttal argument that without the attempt

to bribe Jimenez, there would have been no _ prosecution.

Against this background, however, the Court instructed

the jury as to the three essential elements required to be

proved to sustain a conviction as to Count I as follows:

“First, the act or acts of conspiring to directly or

indirectly offer or promise to jockeys in the 9th race at

Bowie, on February 14, 1975, information or any other

things of value as charged in the indictment.

Secondly, doing such act wilfully and corruptly, and,

third, doing such act with the intent to influence a

performance of jockeys in the 9th race, as charged.”

(Emphasis added).

The Court’s charge to the jury speaks in terms of “jockeys”.

Yet, the cornerstone of the government’s case on Count | was

that the jockey defendants conspired to bribe one jockey,

Carlos Jimenez, not a number of jockeys. It is submitted that

the charge led the jury away from the critical finding which

it was required to make, to wit, a conspiracy of the jockey

defendants to bribe Carlos Jimenez.

To make matters worse, the Court further instructed the

jury on Count | as follows:

“The evidence in the case need not establish that all

the means or methods set forth in the indictment were

agreed upon to carry out the alleged conspiracy, nor

that all means or methods, which were agreed upon, were

actually used or put into operation, nor that all the

persons charged to have been members of the alleged

conspiracy were members.

“What the evidence in the case must establish beyond

a reasonable doubt is that the alleged conspiracy was

knowingly formed, and that one or more of the means or

methods described in the indictment were agreed upon

to be used in an effort to effect or accomplish some

object or purpose of the conspiracy as charged in the

indictment, and that two or more persons, including one

or more of the accused, were knowingly members of the

conspiracy as charged in the indictment. (Emphasis

added).

“In your consideration of the evidence in the case

as to the offense of conspiracy charged, you should first

determine whether or not a conspiracy existed as alleged

in the indictment. If you conclude that the conspiracy

did exist, you should next determine whether or not the

accused, or any of them willfully became members of the

conspiracy.

“ “If it appears beyond a reasonable doubt from the

evidence in the case that the conspiracy alleged in the

indictment was wilfully formed, and that the defendants

wilfully became members of the conspiracy either at its

inception or afterwards, and that thereafter one or more

of the conspirators knowingly committed one or more of

the overt acts charged in furtherance of some object or

some purpose of the conspiracy, then there may be a

conviction, even though the conspirators may not have

succeeded in accomplishing their common object, or

purpose, and in fact may have failed of so doing.”

(Emphasis added).

By allowing the jury to speculate as to one or more of the

means or methods or of the overt acts which the Court

charged would be adequate to support a finding of guilt, the

Court again led the jury away from the critical finding which

it was required to make, to wit, the conspiracy to bribe Carlos

Jimenez. For example, the jury could have found as a matter

of fact that the jockey defendants purchased certain triple

pari-mutuel wagering tickets on the 9th race as charged in

paragraph 8 of the indictment as one of the “means or methods”

and that Ernest Davidson purchased 38 tickets for the 9th race

on the triple pari-mutuel wagering combination of 2-8-12 at

betting window 108 as charged in paragraph 4 of the indictment

as one of the “overt acts”. Based on these facts, the jury could

have returned a guilty verdict as to Count I and such a verdict

would have been in accordance with the Court’s instruction.

Yet, neither finding of fact is related to the gravamen of the

government’s case as to Count I, to wit, the conspiracy to bribe

Carlos Jimenez.

The jury should have been compelled to find the overt act

and the means or method upon which it relied to support a

guilty finding on Count I indeed related to the “sports bribery”

charged in the indictment. Rather than being required to focus

on these critical findings, the jury was allowed to divert its

attention from the focal point of the offense charged in Count I

which was the conspiracy to bribe Carlos Jimenez.

Despite the obvious confusion caused by the Court’s

misleading instructions to the jury on Count I, the Fourth

Circuit’s opinion is glaringly devoid of any discussion and

analysis of this issue. The only finding made by the Fourth

Circuit is that 18 U.S.C. §224 (conspiracy to effect a sporting

contest by bribery) encompasses bribery schemes originated by

participants in a sporting contest as well as those initiated by

outsiders or non-participants. Petitioners do not dispute this

conclusion. However, the Fourth Circuit’s failure to squarely

address the central issue posed by the trial court’s instruction

on Count | fails to account for the possible absurd result

whereby the jockey defendants could have been found guilty of

conspiring to bribe themselves. It is submitted, therefore, that

the charge as to Count | constitutes piain error.

Similarly, the Court’s instructions on Counts VIII, [IX and

X were confusing and led the jury away from a consideration

of the central issue, to wit, whether the defendant jockeys

fixed the race. Specifically, Count VIII charged the defendants

with having “knowingly devised and intended to devise a scheme

and artifice to defraud the people of the State of Maryland,”

e.g. to fix a race. Yet, the Court charged the jury that as to

the “fiduciary relationship” which existed becween the jockey

defendants and “the owners and trainers for whom they rode,

or to the Maryland State Racing Commission, or to the bettors

at Bowie Race Track on that date,” the jockey defendants

could be found guilty if the jury was convinced that they

“contemplated some actual harm or injury to those with whom

(they) had a fiduciary relationship.”

A clear and unequivocal statement that betting alone was

not sufficient to support the crimes charged, coupled with a

precise statement of the requisite intent in terms of the specific

criminal charge, were imperative for the jury to place the matter

before it for consideration in proper perspective. The problem

is well expressed in Bollenbach v. United States, 326 U.S. 607,

612 (1946). “Particularly in a criminal trial, the judge’s

last word is apt to be the decisive word. If it is a specific

ruling on a vital issue and misleading, the error is not cured

by a prior unexceptionable and unilluminating abstract charge”

The crucial element in a scheme to defraud is proof of a

fraudulent intent on the part of the defendant, that specific

requisite intent not here being covered by the charge in a manner

that was sufficiently or properly instructive to the jury. United

States v. George, 477 F.2d 508, 513 (7th Cir., 1973);United

States v. Regent Office Supply Company, 421 F.2d 1174, 1180

(2d Cir., 1970); United States v. Lichota, 351 F.2d 81, 89

(6th Cir., 1965); United States v. Painter, 314 F.2d 939, 943

(4th Cir., 1963). A conviction cannot rest on an equivocal

direction to the jury on a basic issue. Bollenbach v. United

States, supra, see also Perry v. United States, 422 F.2d 697

(D.D. Cir., 1969). It is moreover fundamental that the ultimate

question is “whether the charge taken as a whole was such as

to confuse or leave an erroneous impression in the minds of

the jurors.” Perez v. United States, 297 F.2d 12,16 (Sth Cir.,

1961). Such confusion was most certainly here implanted in

the jurors’ minds.

The significance to be attached to the charge and the

requirement that the charge not be misleading by any specific

erroneous statement contained therein finds clear expression

in the Fourth Circuit’s opinion in United States v. Mogavero,

521 F.2d 625 (4th Cir., 1975) where Judge Winter, writing for

an undivided court, stated at page 628:

“The erroneous instruction was addressed to specific

findings—application of the general statements to the facts

as the jury might find them and the form of verdict which

would follow. As a consequence, we think it unlikely

that the jury, in making the specific finding of guilt or

innocence, would correctly apply the general statements

in the contravention of the district court’s literal language.

Thus, we cannot conclude that the error was overcome.”

The charge, moreover, undermined the closing arguments

of counsel for the jockey defendants which rejected the proof

of a “fixed” race. In Griego v. U.S., 298 F.2d 845 (10th Cir.,

1962) it was held that instructions were erroneous which

excluded from jury consideration affirmative defenses as to

which evidence had been received. The problem is placed in

sharp focus by the holding in Strauss v. U.S., 376 F.2d 416

(Sth Cir., 1967), that by failing to charge on a specific defense

the trial Court diluted the defendant’s jury trial by removing

issues from the jury’s consideration and, in effect, erroneously

directing a verdict on that issue against the defendant.

Finally, in order to prove a fraud within the meaning of

the Wire Fraud Act, there must be a purpose to do harm which

amounts to fraudulent intent. If the race was honestly run,

there was no fraud within the meaning of the Act. If the race

was fixed, disclosure would have made no difference. See e.g..

Epstein v. United States, 174 F.2d 754, 768, 769 (6th Cir.,

1949). The concealment of the jockey defendants’ betting in

the ninth race was not a fraud without a finding of intent on

their part to run a dishonest race, i. e. hindering the performance

of his horse or agreeing together to get another jockey to hinder

the performance of his mount. What would have harmed

the public, the owners and trainers was a fixed race. A

scheme to fix a race would be a fraud within the meaning of

Section 1343. Whether or not the jockeys indeed fixed the

race was a question that should have been submitted to the jury.

THE EVIDENCE FAILED TO ESTABLISH ANY BRIBERY AND

WAS INSUFFICIENT TO. CONNECT ANY OF THE JOCKEY

DEFENDANTS WITH ANY CONSPIRACY TO BRIBE

The essential allegations of Count I charged that the

jockey defendants conspired to “provide information and other

things of value as an inducement to Carlos A. Jimenez. . .” to

have him inhibit his performance in the 9th race at Bowie.

The only direct evidence, however, on the bribery allegation

is the testimony of the unindicted co-conspirator, Carlos A.

Jimenez. According to the testimony adduced at trial, Feliciano

offered neither information nor anything of value prior to

asking Jimenez if he wished to pull his horse. Moreover, even

after Jimenez agreed, Feliciano did not offer money or any

other consideration, but told Jimenez what it would cost him

to bet on the race. Furthermore, Jimenez testified that he

did not pull his horse. Thus, the evidence introduced by the

Government at trial failed to establish that the defendants,

or any one of them, offered Jimenez either information or

anything of value in order to induce him to inhibit his

performance.

It is well recognized that the crime of bribery requires

two essential elements: (1) participation by at least two persons,

and (2) concert of action between those persons. In addition,

the gist of a charge of accepting a bribe is the intent of one

at the time of receipt of the money to have his decision or

action in a matter influenced thereby. U.S. v. Henry, 52 F.Supp.

161 (D.Nev., 1943). The Court in U.S. v. Canella, 63 F.Supp.

377 (S.D. Calif., 1945), described bribery in slightly different

words when it said at page 379:

“The gist of the offense is . . . the acceptance of

money, contracts or gratuities with the understanding

that the . . . conduct shall be influenced.”

The Ninth Circuit, moreover, held in U.S. v. Teed, 185

F.2d S561, 563 (9th Cir., 1950) that where parties, who obtained

money from a physician (Dr. Teed) for the alleged purpose of

bribing a federal narcotics agent, had no intention of using the

money for a bribe and nothing was ever promised, offered or

given, neither bribery, attempted bribery or conspiracy to

commit bribery existed.

Therefore, since there was no inducement to the co-con-

spirator Jimenez and according to his own testimony, his

conduct during the 9th race was not influenced, there was a

failure to establish the requisite elements of bribery.

The government also failed to introduce evidence at trial

that any of the jockey defendants were part of a conspiracy to

bribe Jimenez. The government’s evidence as to the jockeys,

coming exclusively from Jimenez, is that he, Davidson, Walsh

and Gino were playing cards early on February 14 in the jockey’s

room, that he saw Davidson dividing up the tickets on February

14 after the race and that he saw Davidson return his tickets to

Walsh for cashing on February 16. While this evidence would be

enough to establish that Davidson participated with the others

in betting on the ninth race, one cannot conclude therefrom that

Davidson, Walsh or Gino had any knowledge of the alleged

conversation between Feliciano and Jimenez. The reasoning

must be that because Jimenez was allegedly asked by Feliciano

to pull his horse and both of them had tickets on the ninth

race, therefore, since the other jockeys also had tickets, they

must have known of a conversation between Feliciano and

Jimenez. This type of reasoning, which is based only on

evidence of association, has been judicially described a perversion

of logic — ie., if (A) bribes (B), and (C) is associated with

(A), then (C) must have also taken a bribe — “this is a classic

non sequitur.” Ong Way Jong v. United States, 245 F.2d 392,

394 (9th Cir., 1957). The law, moreover, is clear that proof

of association is insufficient to permit a charge of conspiracy

to be submitted to the jury. United States v. Falcone, 311

U.S. 205, 207, 210 (1940); United States v. Cirillo, 499 F.2d

872 (2d Cir.), cert. denied 95 S.Ct. 638 (1974); United

States v. Stromberg, 268 F.2d 256 (2d Cir., 1959). Furthermore,

it is fundamental that a conviction for conspiracy cannot be

sustained without proof of an agreement to attain a criminal

objective. J/ngram v. U.S., 360 US. 672, 677-678 (1959).

That key element was lacking as to defendants Walsh, Davidson

and Gino.

Finally, even were it found that the government adduced

some proof of a conspiracy, the proof shows not one overall

agreement lasting from February 14 to February 20 or 21 as

alleged in Counts i and VII, but many separate agreements

between the defendants.

The first conspiracy was complete when each of the jockeys

received his tickets and, by the uncontradicted proof, went his

separate way to arrange for cashing. Only after a distinct break

did the jockeys, minus one who originally had tickets (Baboolal),

join together to attempt cashing. In fact, not until two days

later did the defendants attempt to get all the tickets together

to cash them, and even then there is a lack of evidence of a

single agreement, since on Monday following the race, according

to Jimenez, Walsh refused to try to cash his tickets while

Feliciano agreed to do so.

15S

Thus, the government’s theory underlying the allegations

of Counts I and VII of one continuing agreement to cash the

winning tickets is not supported by the evidence introduced at

trial. Moreover, the government certainly should be precluded

from putting together several defendants in one conspiracy

when the proof shows many separate conspiracies. Kotteakos

v. United States, 328 U.S. 750 (1946). As was stated in

United States v. Borelli, 336 F.2d 376, 384 (2nd Cir., 1964):

Although it is usual and often necessary in

conspiracy cases for the agreement to be proved by

inference from acts, the gist of the offense remains

the agreement, and it is therefore essential to determine

what kind of agreement or understanding existed as to

each defendant.”

The scope of any alleged conspiracy must be determined

individually as to each defendant, United States v. Falcone,

supra; United States v. Borelli, supra. There is no evidence from

which a reasonable juror could have concluded beyond a

reasonable doubt that any of the jockey appellants were part

of one conspiracy extending from February 14 to February 20

or 21. Here, the evidence shows that assuming a conspiracy

existed on February 14, it ended that night with distribution

of the tickets.

Since the sports bribery conspiracy, if it existed, ended

the night of February 14, there was absolutely no evidence of any

conspiracy “to carry into effect any scheme in commerce” to

commit sports bribery under 18 U.S.C. §224. Both the wording

and legislative history of 18 U.S.C. §224 leave no room for

doubt that an offense within the meaning of §224 must be

carried into effect by using interstate facilities in interstate

commerce.? Yet, there was a total lack of proof of any use of

The purpose of this regulation is to make it a federal crime

to influence a sporting contest by bribery. For such conduct to’

constitute a federal offense it must be done through the facilities

of interstate or foreign commerce.” United States Code and

Administrative News, p. 2251, 88th Cong., 2d Sess. (1964). See

also, Vol. 110, Cong. Record, Part | at 920-922, 88th Cong., 2d

Sess. (1964).

any facility in interstate commerce during the alleged conspiracy

to commit sports bribery.

COUNT I ON ITS FACE FAILS TO ALLEGE AN OFFENSE BECAUSE

HORSE RACING IS NOT A SPORTING CONTEST WITHIN THE

MEANING OF THAT TERM AS USED IN 18 U.S.C. §224 PROHIBITING

BRIBERY IN SPORTING CONTESTS

On its face, 18 U.S.C. §224 does not prohibit bribery

affecting the outcome of horse races. The statute prohibits

“Bribery in Sporting Contests” and further provides a specific

definition for what sporting contests are covered:

“The term ‘sporting contest’ means any contest in

any sport, between individual contestants or teams of

contestants (without regard to the amateur or professional

status of the contestants therein), the occurrence of

which is publicly announced before its occurrence... .”

18 U.S.C. §224 (c) (2)

Based on the plain words of this statute, horse racing does not

fall within the sporting contests covered.

The judicial power of the federal government is limited

and its courts can only exercise jurisdiction where Congress

has specifically provided for it. Cary v. Curtis, 44 U.S. 236,

245 (1845). Accord Lockerty v. Phillips, 319 U.S. 182,

187-188 (1943). Moreover penal laws are to be construed strictly

which “is perhaps not much less old than construction itself.”

United States v. Wiltberger, 18 U.S. 76, 95 (1820).

Finally, any “ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.” Rewis vy.

United States, 401 U.S. 808 (1971) citing Bell v. United States,

349 U.S. 81, 83 (1955).

Horse racing is not a contest between individual contestants

or teams of such contestants as required by the statute. A

horse race is a competition between animals ridden by jockeys.

The statute evidences no intent to encompass sporting contests

between animals; it is limited to contests between “individual

contestants”. Not only does the general usage of the words

employed exclude animals, but also the statute itself equates

individuals with “persons” in subsection (c) (3).°

Because the plain words of the statute construed in light

of the controlling principles of statutory construction preclude

its application to horse races, resort to the legislative history

is neither appropriate nor necessary. That history confirms,

however, that the statute was not directed at races involving

animals, particularly races on which pari-mutuel betting is

allowed. On the contrary, the evils cited which prompted the

bill were the intrusion of gambling interests into collegiate and

professional baseball, football and basketball. The support of

organizations controlling team sports involving individuals was

noted. 4

Federal intervention was justified by statements as to

the absence of effective state regulation of bribery in the

sports cited.5 No similar absence of state regulation could be

marshalled to support federal intervention to control horse

racing. Horse racing is one of the most heavily state-regulated

sports as evidenced by the fact that every state that allows

racing has a statutory scheme creating a regulatory body to

supervise its conduct. Furthermore, nearly all of the states

which allow horse racing have their own sports bribery statutes.

3the Second Circuit has rejected this argument in United

States v. Pinto, §03 F.2d 718, 724 (2d Cir., 1974).

Senate Report No. 2003, pp. 4, 5 (87th Cong. 2d Sess. 1962);

108 Congressional Record 19174, 19175 (1962); Senate Report

No. 593, pp. 2, 3 (88th Cong. Ist Sess. 1963) 110 Congressional

Regord 920, 921, 922 (1964).

Senate Report No. 593, p. 3 (88th Cong., Ist Sess. 1963);

U.S. Code and Adm, News, 88th Cong., 2d Sess. p. 225! ll0

Cong. Rec. 920 (1964).

IV.

THE EVIDENCE FAILED TO ESTABLISH A VIOLATION OF

COUNT VII SINCE 26 U.S.C. §6041 DOES NOT REQUIRE THE NAME

OF THE TRUE WINNER, IS IMPERMISSIBLY VAGUE AND AS SUCH,

THERE WAS A FAILURE OF PROOF OF INTENT AS TO THAT

COUNT

Count VI! charges the jockey defendants with a conspiracy

to violate 26 U.S.C. §7206 (2) on the theory that they aided and

pbetted the Bowie Race Track in filing false and fraudulent

tax returns by having the defendants Summa and lacona cash

the tickets and fill out a 1099 information return when the

defendants knew that the true winners of the wagers are required

to prepare the return. This theory is fatally defective in that:

a) The indictment fails to charge the offense of conspiracy

to violate §7206 (2); b) No statute or regulation requires the

“actual winner” to fill out the 1099 information return;

c) 26 U.S.C. §6041 only requires an individual cashing the

ticket to give the name of the actual recipient of the income

(not the “true winner”), and then only upon demand by the

track. There was simply no evidence of actual demand by the

track or proof that the jockeys were to be the actual recipients

of the income; d) §6041 which forms the basis for Count VII

is overly vague and cannot support a criminal conviction. To

premise a criminal prosecution upon a supposed reporting

requirement as unclear as this one is offensive to basic concepts

of due process of law; and e) Assuming, arguendo, that §6041

does require the “actual winner” to be named and is not overly

vague, the government presented no evidence that these defen-

dants had, or that there was any probability that they had,

notice of the requirement nor any evidence that they possessed

the requisite criminal intent to sustain a charge of conspiracy.

26 U.S.C. §7206 (2) punishes whoever “willfully aids or

assists in . . . the preparation or presentstion . . . of a return,

affidavit, claim or other document, which is fraudulent or is

false as to any material matter...” Assuming, arguendo,

that the government has presented evidence that the defendants

conspired to have Bishop cash the tickets and to file a return

signed by someone other than the jockeys with the track,

whether or not that activity is in violation of §7206 (2) must

depend upon whether 26 U.S.C. §6041 requires the name of the

actual recipient of the income derived from the cashing of the

tickets.

The plain language of §6041 clearly does not require the

name of the actual recipient except upon demand of the person

paying the income. As 26 U.S.C. §6041 (a) requires only the

disclosure by the track of the identity of the “recipient of .. .

payment”’, legally sufficient compliance with the requirements

of §6041 is made, consequently, by the identification by Form

1099 of the holder or presenter of the winning pari-mutuel ticket,

regardless of whether such person is the actual owner of the

income. No violation of 26 U.S.C. §7206 (2) is shown

because the Form 1099, when it is filed, is not “fraudulent or. . .

false as to any material matter...” Any doubt that this

provision does not require that the actual recipient himself

sign the return must be resolved by reference to 26 C.F.R.

§!.6041.5. That regulation states:

“When a person receiving a payment described in §6041

is not the actual owner of the income received, the name

and address of the actual owner shall be furnished upon

demand of the person paying the income, and in default

with that compliance the payee becomes liable for the

penalties provided.”

Thus, since the Internal Revenue Service has interpreted

1 as requiring the name of the actual recipient only upon

demand of the payer and the indictment failed to allege a demand

by the payer, an essential element of the offense is lacking in

the absence of such a demand. See United States v. Eller, 114

F.Supp. 284, 285 (M.D.N.C., 1953). The form which is provided

by the race track for those cashing winning tickets provides

only for the signature of the payee. There is no notice on

the form that the payee must provide the name of the actual

recipient of the income. —

Assuming, arguendo, that §6041 does require the name

of the true winner of the tickets and is not overly vague, the

government has failed to adduce any evidence that the

defendants knew that they were violating a federal revenue law,

or intended to do so, when they agreed to have the tickets

cashed. See e.g., United States v. Gisehaltz , 278 F.Supp.

434, 437 (S.D.N.Y., 1967). According to the testimony of

Carlos Jimenez the defendants only concern was that they,

as jockeys, could not cash the tickets and this concern was

motivated not by any revenue law but by the rules of the

Maryland Racing Commission.

Finally, it is clear that to establish a conspiracy to

violate §7206 (2) the government, at a minimum, must show

the defendant’s knowledge of the unlawful nature of the

enterprise. The defendant “must know that he is violating the

federal Internal Revenue Law.” United States v. Gisehaltz,

supra at 437. Any finding of willfulness depends in part upon

whether or not the defendants had actual notice of the require-

ment for the name and address of the actual recipient. United

States v. Dumaine 493 F.2d 1257, 1259 (Ist Cir., 1974); Lambert

v. California, 355 U.S. 225 (1957). The only “notice” provided

by the track is a fine print provision buried in the program;

hardly legal notice under the circumstances. As noted above, the

notice provided by this provision is, at best, ambiguous as to

what is required of the winner of an $18.00 ticket. In any case

none of the evidence presented by the government indicates that

the jockey defendants had notice of the provision nor does it

establish the probability of such knowledge. See Lambert

v. California, supra at 227.

in conciusion, there was no evidence that the jockey

defendants knew of the supposed requirement that the actual

recipient of income must be reported on IRS Form 1099 and

“Without the knowledge, the intent cannot exist.” Direct Sales

Co. v. United States, 319 U.S. 703, 7ll (1943). Furthermore,

the evidence presented by the government did not support a

finding that each jockey defendant knowingly entered into an

agreement with the others to achieve the unlawful purpose of

filing a fraudulent document with the Internal Revenue Service.

THERE WAS A FAILURE TO PROVE USE OF INTERSTATE

FACILITIES IN INTERSTATE COMMERCE

For the reasons stated heretofore, since any sports bribery

conspiracy which may have been proved as to Count I ended

on February 14, there is a failure of proof that this was a

scheme in commerce. With distribution of the tickets on that

date, any alleged conspiracy terminated prior to use of any

interstate facility.

The use of the telephone, which the government urges

supports the Travel Act Counts, is minimal and incidental.

Use of the phone was not essential for Vuotto to contact Bishop.

He expected to see Bishop “at the track” in Laurel, Maryland

as he was accustomed to doing. He “may” have made his

first contact with Bishop with respect to cashing the tickets at

the track on Monday, February 17. The conduct involved is

therefore essentially local and does not represent the activity of

organized crime. Recognizing that United States v. LeFaivre,

507 F.2d 1288 (4th Cir., 1974) requires distinction, these

defendants urge that absent a showing that use of the phone

was essential, or at least not minimal or incidental, a judgment of

acquittal was required on Counts V and VI or, in the alternative,

the issue of minimal use should have been submitted to the jury.

See Rewis v. United States, supra; United States v. Archer,

486 F.2d 670 (2d Cir., 1973); United States v. Altobella, 442

F.2d 310 (7th Cir., 1971); United States v. McCormick, 442

F.2d 316 (7th Cir., 1971).

Vi.

THE GOVERNMENT FAILED TO PROVE THESE DEFENDANTS

WILLFULLY CAUSED INTERSTATE TRAVEL AND THERE WAS A

FAILURE OF PROOF THAT BISHOP , SUMMA AND IACONA DID OR

WERE INTENDED TO “DISTRIBUTE” THE PROCEEDS OF BRIBERY

As noted above, Counts V and VI charge that these

defendants “did willfully and unlawfully cause” the interstate

travel of Summa, lacona and Bishop. Although the Fourth

Circuit apparently held that a knowing use of interstate

commerce is not required to convict of a substantive charge of

§1952 or for conspiracy or aiding and abetting, United States v.

LeFaivre, supra at 1297, these defendants are here charged with

willfully causing the interstate travel in violation of 18 U.S.C.

§1952 (a) (1) and 2(b), and accordingly, a knowing or willful

violation is required. See United States v. Barnes, 383 F.2d

287, 289-93 (6th Cir., 1967) cert. denied 389 U.S. 1040 (1968).

18 U.S.C. §2 (b) provides “[W]hoever willfully causes an act to

be done which if directly performed by him or another would

be an offense against the United States, is punishable as a

principal.” Thus, it is incumbent upon the government to show

that the defendants possessed the specific intent which is required

under 18 U.S.C. §2, to cause the interstate travel of Summa,

lacona and Bishop. See United States v. Newman, 490 F.2d

139, 142, 143 (3rd Cir., 1974). This is not more than common

sense since one cannot willfully bring about a result, here

interstate travel, without specifically intending to do so.

[T]he requirement that defendant willfully cause the

forbidden act to be done, means that the act must not

only have been the cause-in-fact of the defendant's

activities, but also that defendant have the specific intent

of ‘bringing about’ the forbidden act. United States v.

Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836

(1917); United States v. Leggett, 269 F.2d 35, 37 (7th Cir.,

1959) . . .” United States v. Markee, 425 F.2d 1043,

1046 (9th Cir., 1970).

In the contest of this case the government must have

produced sufficient evidence to show that these defendants, at

the time that they agreed to have the tickets cashed, knew that

this agreement would require the interstate travel of Summa,

lacona and Bishop. There is an absence of any proof from which

it could be reasonably inferred that they had this knowledge.

Counts V and VI allege that these defendants did willfully

and unlawfully cause Summa, lacona and Bishop to travel in

interstate commerce with intent to distribute the proceeds of

bribery. The evidence adduced at trial does not support the

allegation that Summa, lacona and Bishop in any way distributed

or were intended to distribute the proceeds of bribery. Accord-

ing to the testimony of Michael Vuotto, which is the only

testimony on this point, Bishop bought the tickets which

Vuotto was given by the jockeys. Thus even assuming that

the government has established that these tickets were the “pro-

ceeds of bribery”, there has been no showing that these three

defendants did or were intended to distribute these proceeds

within the plain meaning of that word. The word “distribute”

simply does not encompass the concept of buying tickets or

of taking tickets and cashing them and returning the cash to

the person from whom the tickets were obtained.

While this Court has given undoubtedly the most

expansive reading to 18 U.S.C. §1952, it has specifically stated

that its holdings are based on a literal reading of the plain

language of the Travel Act. United States v. LeFaivre, supra,

where it was recognized that Rewis v. United States, supra,

prohibits extending the language of the Travel Act beyond its

literal meaning United States v. LeFaivre, supra at 1294. Thus,

where, as in the instant case, the plain language of the Travel

Act simply does not cover the activity charged, it must not be

given an expansive reading.

Vil.

THE INTERSTATE USE OF A TELEPHONE WAS NOT CAUSED

BY THE DEFENDANTS FOR THE PURPOSE OF EXECUTING A

SCHEME OR ARTIFICE TO DEFRAUD

It is a specific requirement of the Wire Fraud Siatute,

18 U.S.C. §1343, the basis of Counts VIII through X, that the

interstate use of a telephone must have been caused by tie

defendants “for the purpose of executing the scheme or artifice

to defraud.” In interpreting the language of the Mail Fraud

Statute, the Supreme Court has held that one “causes” the

mails to be used where he “does an act with knowledge that the

use of the mails will follow in the ordinary course of business,

or where such use can reasonably be foreseen, even though

not actually intended .. .” United States v. Maze, 414 U.S.395,

399 (1974). Thus, for Counts VIII through X, the government

was required to prove that the jockey defendants either directly

caused the use of the interstate telephone facilities or knew that

such use would follow as to the cashing of the tickets, or that

such use was reasonably foreseeable, even though not actually

intended.

The fraud here charged was a uniquely local offense where

local jockeys are charged with conspiring together to fix or

manipulate a race at a Maryland race track and thereafter

to cash tickets at that track. The government failed to present

any evidence establishing that use of any interstate facility was

foreseeable. William Vuotto testified that in his conversation

with Walsh he indicated~dnly that there were some 30 or 40

people at the track who could cash the tickets. He said nothing

and he knew nothing about the two men who eventually

presented the tickets for cashing. He had no conversations with

any of the other jockey defendants. The sole testimony as to

their knowledge was that they understood that William Vuotto

was to get the tickets cashed. This evidence does not present

a basis to permit a reasonable man to infer beyond a reasonable

doubt that the use of an interstate facility was foreseeable

from a mutual agreement to get the tickets cashed.

Without knowledge that Vuotto would call someone from

out of state, these defendants could not have willfully caused

either the interstate travel or the interstate telephone calls.

“To establish the intent, the evidence of knowledge must be

clear not equivocal.” Direct Sales Co. v. United States, supra

at 7ll. Nor was there reason to infer that the use of interstate

telephone facilities would follow in the ordinary h course of

business or that such use could be reasonably foreseen. See

United States v. Maze, supra.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

H. Russell Smouse

1700 First National Bk. Bldg.

Baltimore, Maryland 21202

539-6868

Peter G. Angelos

233 Equitable Building

Baltimore, Maryland 21202

727-0830

Attorneys for Petitioners

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT. _-

No. 76-1094

UNITED STATES OF AMERICA,

Appellee,

ERIC STEVEN WALSH,

LUIGI GINO and

BENJAMIN MICHAEL FELICIANO,

Appellants.

No. 76-1095

UNITED STATES OF AMERICA,

Appellee,

JESSE DAVIDSON,

Appellant.

No. 76-1096

UNITED STATES OF AMERICA,

Appellee,

EDWARD BISHOP,

Appellant.

No. 76-1100

UNITED STATES OF AMERICA,

Appellee,

LOUIS J. SUMMA,

Appellant.

No. 76-1101

UNITED STATES OF AMERICA,

Appellee,

NICHOLAS ANTHONY IACONA,

Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore

Joseph H. Young, District Judge

Argued May 4, 1976 Decided October 21, 1976

Before: BUTZNER, Circuit Judge; FIELD, Senior Circuit

Judge, and WYZANSKI, Senior District Judge*

NN eee > ee ee ee

Peter G. Angelos and H. Russell Smouse for Appellants

in 76-1094 and 76-1095; Michael S. Frisch, Assistant Federal

Public Defender (Charles G. Bernstein, Federal Public Defender

and Gerald M. Richman, Assistant Federal Public Defender on

brief) for Appellant in 76-1101; Leslie L. Gladstone [court-

appointed counsei| for Appellant in 76-1100 and for Appellant

in 76-1096; Daniel M. Clements, Assistant United States

Attorney (Jervis S. Finney, United States Attorney, Gerard P.

Martin, Assiste t United States Attorney on brief) for Appellee

in 76-1094, 76-1095, 76-1096, 76-1100 and 76-1101.

*Honorable Charles Edward Wyzanski, Jr., Senior District

Judge, District of Massachusetts, by designation.

FIELD, Senior Circuit Judge:

A Runyonesque gambit at the Bowie Race Track on February

14, 1975, resulted in a very peculiar horse race and a thirteen

count indictment by a federal grand jury. Subsequently, the

appellants, Walsh,! Gino, Feliciano and Davidson, all of whom

were jockeys at Bowie, were convicted by a jury in the District

Court of Maryland of conspiracy to commit sports bribery in

violation of 18 U.S.C. §§224 and 371 (Count One); interstate

transportation in aid of racketeering in violation of 18 U.S.C.

§1952 (a) (1) (Counts Five and Six); conspiracy to make

fraudulent representations to the Internal Revenue Service in

violation of 18 U.S.C. §271 and 26 U.S.C. §7206 (2) (Count

Seven); and fraud by wire in violation of 17 U.S.C. §1343

(Counts Eight, Nine and Ten). The appellants, lacona, Summa

and Bishop, who were not jockeys but apparently followers

of the sport of kings, were also found guilty of the conspiracy

in Count Seven of the indictment.

The evidence presented by the Government established the

following facts. The four jockey appellants devised a plan to

successfully “box” the “Triple” (“Trifecta”) in the ninth race

on the day in question. To win the Triple a bettor is required

to choose the three horses finishing first, second and third in

that race. The standard Triple ticket, unlike other wagers at the

track, costs three dollars. However, for the convenience of

patrons the track permits the purchase of a “box” ticket on the

Triple at a cost of eighteen dollars which covers the selected

three horses regardless of the order of finish. Since a “box”

ticket contains all six possible combinations of finish for any

three given horses, it necessarily includes only one winning three

dollar wager and five losing three dollar wagers.

The jockeys decided to bend their efforts to bring about a

winning combination of “2-8-12”, and garnered enough money

to purchase thirty-eight “box” tickets on that combination.

Having purchased the tickets, the jockeys rode their mounts in

the race and the order of finish was “8-12-2”. Accordingly,

l Eric Stephen Walsh died while this appeal was pending and an

order was entered abating the judgment of his conviction and

dismissing the indictment against him. However, for the purposes of

clarity and continuity, he will be referred to in this opinion as

one of the appellants.

eee

the jockeys owned thirty-eight of the sixty-two winning

eighteen dollar tickets in the betting pool for the Triple. One

of the track supervisors noticed that the ratio of winning

eighteen dollar tickets was three to one over the number of

winning three dollar tickets, and it occurred to him that this

was rather strange since the normal ratio was approximately

fifty-fifty. The fact that thirty-nine out of the total of sixty-two

winning eighteen dollar tickets had been purchased at one

window in the clubhouse aroused further suspicions. This

circumstance was compounded by the observation of the track

stewards who were impressed by the highly irregular manner in

which some of the jockeys handled their mounts during the

race. A review of the track films confirmed the stewards’ belief

that something was amiss, and an investigation of the race

was initiated.

Meanwhile the jockeys were attempting to realize the profits

from their winning tickets which presented a greater problem

than they had anticipated. Luigi Gino sought the assistance

of one Heddy Sue May who made an unsuccessful attempt to

cash two of his tickets. She testified that Gino informed her

that “two guys from Pennsylvania” would be coming in to

cash the tickets. The services of these “ten-percenters”? were

procured by William Vuotto, an agent of jockey Walsh, who

testified that he called the appellant Eddie Bishop from his

home in Maryland. He further testified that Bishop who lived

in Delaware advised him that he had obtained some individuals

to cash the tickets. lacona and Summa, whose services had

been enlisted by Bishop, attempted to redeem the tickets on

February 19, 1975, but were unsuccessful. When lacona

attempted to cash the tickets, he told the track officials that

he and Summa had pooled their money and purchased the

tickets for the, now, infamous ninth race. Frustrated in their

attempt to cash the tickets, lacona and Summa left the ticket

windows and were followed by a track detective who observed

that their automobile carried a Pennsylvania license tag and

obtained the number. The tickets were returned to Bishop,

who gave them to Walsh, and Bishop testified that on the

2A “ten-percenter” is one who. for a fee amounting to ten

percent of the winnings, cashes tickets for others and completes

the required Internal Revenue Service form. See, United States

v. Lincotn, 472 F.2d 1183 (5 Cir. 1973).

following day, February 20th, Walsh iold him that the tickets

had been destroyed and that he should forget about the

entire transaction.

The threshold issue on this appeal is whether 18 U.S.C. §224

applies to a conspiracy among the contestants as opposed to one

involving individuals who are not contestants and attempt to

bribe those actually involved in the sport. We find nothing

in the express language of the statute to indicate that it was

intended to apply only to bribery on the part of those who

are not participating in the contest. The statute provides, in

part:

“Whoever carries into effect, attempts to carry into effect,

or conspires with any other person to carry into effect

any scheme in commerce to influence, in any way, by

bribery any sporting contest * * *.” (Emphasis added).

The statutory language does not purport to limit its applica-

tion, and “|w]here the power of Congress is clear, and the

language of exercise is broad, we perceive no duty to construe

a Statute narrowly.” United States v. Erdos, 474 F.2d 157,

160 (4 Cir.), cert. denied, 414 U.S. 876 (1973). It occurs to

us that a plain reading of the statute indicates that it is designed

to encompass bribery schemes originated by participants in a

sporting contest as well as those initiated by “outsiders”.

While we recognize that the primary purpose of the legislation

was to assist the “Federal Government in the assault on organized

crime,” the Legislative History supports the proposition that

Section 224 was intended to “include players and officials as

well as gamblers and fixers.”? The Legislative History further

indicates that the Congress was of the opinion that the infiltra-

tion of sports by organized gambling could be materially

inhibited “by punishing any players or officials as well as

gamblers who attempt to corrupt * * * for personal gain.”4

3109 Cong. Rec. 4107 (1963) (remarks of Congressman Lindsay ).

4109 Cong. Rec. 2016 (1963) (remarks of Senator Keating)

See 110 Cong. Rec. 920 (1964) (remarks of Congressman

Corman); 110 Cong. Rec. 921-22 (1964) (remarks of Congress-

man McCulloch).

Finally, we note that Section 224 was enacted to remedy the

inability of prosecutors to utilize 18 U.S.C. §1952 to effectively

deal with the problem of sports bribery.5 In Section 1952,

the Travel Act, the term “unlawful activity, includes, in part,

extortion, bribery, or arson in violation of the laws of the

State in which committed or of the United States.” Judicial

interpretation of the Travel Act has recognized that “Congress

did not choose to direct the prohibitions of section 1952 against

only those persons who could be shown to be members of

an organized criminal group * * *.” United States v. Roselli,

432 F.2d 879, 885 (9 Cir. 1970), cert. denied, 401 U.S.924,

reh. denied, 402 U.S. 924 (1971) (lootnote omitted). See

United States v. Peskin, 527 F.2d 71, 76-77 (7 Cir. 1975).

Similarly, we conclude that Section 224 was designed to cover

a greater range of offenders than those involved in organized

crime, and since the statute specifically includes “players”, it

would be unreasonable to limit its application to non-contestants.

The further argument of the appellants that horse racing is

not a “sporting contest” within the meaning of Section 224 (c)

(2) is utterly without merit. History, logic and common sense

reject such an argument, and the further contention that

horse racing does not fall within the statute because it is a

competition between horses and not individual contestants

is equally specious. If a decisional answer to such an argument

is required, it may be found in United States vy. Pinto, 503 F.2d

718, 724 (2 Cir. 1974), where the court stated that the

argument:

“rests on the surprising assertion that a harness race is

not a ‘sporting contest’ within the meaning of 18 U.S.C.

224 (c) (2) since it involves animals rather than ‘individual

contestants’. However, the word ‘individual’ when used as an

adjective does not necessary [sic] pertain to humans only,

see Webster's Third New International Dictionary 1152, and

the legislative history manifests a Congressional intent to

prohibit bribery of any person who can influence sports

results. See H. Rep. 1053, 2 U.S. Code Cong. & Admin. News

p. 2250 (1964). Furthermore, the drivers who are undeniably

5110 Cong. Rec. 921 (1964) (remarks of Congressman

McCulloch ).

‘individuals’, are an essenual part of the contest, which

frequently turns on their respective skills.” (Emphasis

by the court).

lacona, Summa and Bishop seek reversal of their convictions

on the conspiracy charge, contending that the district court

improperly denied their motion for a severance from the other

defendants. The rule of long standing in this circuit is that

“the question of severance or common trial is vested under

Rule 14 in the sound discretion of the trial judge and his

decision will be reversed on appeal only upon a clear abuse

of that discretion.”

Cataneo v. United States, 167 F.2d 820, 823 (4 Cir. 1948).

See United States v. Boswell, 372 F.2d 781, 784 (4 Cir.),

cert. denied, 387 U.S. 919 (1967); United States v. Miller,

340 F.2d 421, 423 (4 Cir. 1965). We have further held that

denial of a motion for severance will not be deemed reversible

unless an appellant demonstrates that it resulted in a degree

of prejudice so substantial “that the defendants did not receive

a fair trial, that ‘a miscarriage of justice’ has occurred.”

United States v. Frazier, 394 F.2d 258, 260 (4 Cir.), cert. denied,

393 U.S. 984 (1968).

These appellants contend, however, that the evidence

demonstrated the existence of two separate and distinct

conspiracies and suggest that this case falls within the rationale

of Kotteakos v. United States, 328 U.S. 750 (1946). Their

reliance upon that case is misplaced since we are dealing here

with a “chain” conspiracy rather than a “wheel” conspiracy

which was the subject of Kotteakos, In United States v. Cobb,

446 F.2d 1174 (2 Cir.), cert. denied, 404 U.S. 984 (1971), the

court was confronted with a conspiracy somewhat similar to

that in the present case. In distinguishing Kotteakos, the Second

Circuit held that “[i]n contrast, the defendants’ conspiracy here-

in had as its object a ‘single unified purpose’ or ‘common end’,

i.e., the cashing of winning tickets while concealing from the

Government the identity of the true recipient.” 446 F.2d at

1177. Under the circumstances, the action of the trial court

in denying the motion for severance was not an abuse of

discretion.

In addition to the severance issue, lacona, Summa and Bishop

join the jockey appellants in urging upon us that the evidence

was insufficient to warrant their convictions under Count Seven

of a conspiracy to violate 26 U.S.C. §7206 (2), and they suggest,

among other things, that there is no evidence indicating that

the jockeys had knowledge of the Internal Revenue Service

requirement. To accept this argument would require a degree

of naivete on our part which we are unwilling to concede.

The Daily Racing Program at Bowie carried an explicit

statement of the circumstances under which the actual owner

was to be identified when presenting a winning ticket, and

the jury could fairly infer that the jockeys as well as habitues of

the track were aware of the tax law requirements. Scienter on

the part of lacona and Summa was evidenced by their false

statement to the track officials that they Lad purchased the

tickets with their own money. The prosecution of “ten-

percenters” under such circumstances for violation of Section

7206 (2) is not uncommon. See United States v. Lincoln,

472 F.2d 1183 (S Cir. 1973); United States v. Kessler, 449 F.2

1315 (2 Cir. 1971). Similarly, the conviction of those procuring

the services of such “ten-percenters” to cash their winning

tickets has been upheld. See United States v. Dumaine, 493 F.2d

1257 (1 Cir. 1974).

There is ample support in the record for the conclusion

that the jockeys knew that the law required disclosure of their

ownership of the tickets, and it was for this reason that they

sought the services of Bishop, lacona and Summa. The fact

that their primary purpose was to conceal that the race had

ime Bowie program of February 24, 1975, carried a notice

reading as follows:

Before receiving payment of $600 or more for a $2 wager,

or $900 or more for a $3 wager, a person presenting a winning

ticket (payee) must provide proper identification. The required

identification must be the name, address, Social Security number

of the actual winner, that is the person owning the winning ticket.

The identity of the actual winner is furnished to the Internal

Revenue Service for determination of income tax liability. It

is a violation of Federal law to furnish false information or to

aid or assist another in furnishing false information.

District Director, Internal Revenue Service.

been fixed is of no moment. It is sufficient that as a part of

the scheme they also conspired to make the false and fraudu-

lent representations to the Internal Revenue Service. It is well

settled that a single conspiracy may have a multiplicity of

objectives, “and if one of its objectives, even a minor one, be

the evasion of federal taxes, the offense is made out, though the

primary objective may be the concealment of another crime.”

Ingram v. United States, 360 U.S. 672, 679-80 (1958), reh.

denied, 361 U.S. 856 (1959). As to the non-jockey appellants,

they well knew that they were being retained to falsely

represent to both the track officials and the Internal Revenue

Service that they, rather than the jockeys, were the owners of

the winning tickets and this was sufficient to bring them within

the range of the conspiracy for which they were convicted.

IV.

The jockey appellants also contend that the evidence was

insufficient to establish their guilt of either bribery or conspiracy

to commit bribery. Bearing in mind “that the verdict of the jury

must be sustained ‘if there is substantial evidence, taking the

view most favorable to the Government, to support the findings

of guilt’,” United States v. Holt, 529 F.2d 981, 984 (4 Cir.

1975), we find in the record a sound basis for the convictions.

We will not indulge in a minute review of the testimony

relative to the manner in which the jockeys manipulated their

mounts during the course of the race. Suffice it to say that

the evidence, including the official race films, presented a picture

of misconduct that at times bordered on the bizarre. Additional-

ly, Carlos Albert Jimenez, one of the jockeys who rode in the

ninth race, testified that prior to the race he was approached

by Feliciano who asked him to “pull” his horse. Jimenez replied

“O.K.” and Feliciano told him that it would cost $150.00.

Later Jimenez approached Gino, stating “My money is in, and

I don’t know what happened,” whereupon Gino cryptically

replied “2-812”. Jimenez testified that this information was

sufficient for him. Jimenez further testified that Jesse Davidson

met with him and Gino after the race at which time Davidson

gave Jimenez five of the winning tickets. Jimenez cashed two

10A

of these tickets but later returned three of them to Walsh at

the latter’s request.

In our opinion the offer of the appellants to include

Jimenez in the betting pool in exchange for his agreement to

“pull” his horse was sufficient to support the charge of bribery,

and the evidence in its entirety supported the convictions on

on the conspiracy count.

We have given careful consideration to the other assign-

ments of error, including the challenges of the Travel Act and

wire fraud counts, and find no error. Accordingly, the con-

victions are affirmed.

AFFIRMED.

“TIA

STATUTES AND REGULATIONS INVOLVED

18 U.S.C. §2: Principals

(a) Whoever commits an offense against the United States

or aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense against

the United States, is punishable as a principal.

June 25, 1948, c. 645, 62 Stat. 684; Oct 31, 1951, c. 655,

§17b, 65 Stat. 717.

18 U.S.C. §224: Bribery in Sporting Contests

(a) Whoever carries into effect, attempts to carry into effect,

or conspires with any other person to carry into effect any

scheme in commerce to influence, in any way, by bribery any

sporting contest, with knowledge that the purpose of such

scheme is to influence by bribery that contest, shall be fined

not more than $10,000, or imprisoned not more than 5 years,

or both.

(b) This section shall not be construed as indicating an intent

on the part of Congress to occupy the field in which this section

operates to the exclusion of a law of any State, territory,

Commonwealth, or possession of the United States, which

would be valid in the absence of the section shall be declared

invalid, and no local authorities shall be deprived of any

jurisdiction over any offense over which they would have

jurisdiction in the absence of this section.

(1) The term “scheme in commerce” means any scheme

effectuated in whole or in part through the use in interstate

or foreign commerce of any facility for transportation or

communication;

(2) The term “sporting contest” means any contest in any

sport, between individual contestants or teams of contestants

(without regard to the amatuer or professional status of the

contestants therein), the occurrence of which is publicly

announced before its occurrence;

(3) The term “person” means any individual and any

partnership, corporation, association, or other entity.

Added Pub.L. 88-316, §1(a), June 6, 1964, 78 Stat. 203.

12A

18 U.S.C. §371: Conspiracy to Commit Offense or to Defraud

United States

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any purpose,

and one or more of such persons do any act to effect the object

of the conspiracy, each shall be fined not more than $10,000

or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punishment

for such conspiracy shall not exceed the maximum punishment

provided for such misdemeanor. June 25, 1948, c. 645

62 Stat. 701.

18 U.S.C. §1343: Fraud By Wire, Radio, or Television

Whoever, having devised or intending to devise any scheme

or artifice to defraud, or for obtaining money or property by

means of false or fraudulent pretenses, representations, or

promises, transmits or causes to be transmitted by means of

wire, radio, or television communication in interstate or foreign

commerce, any writings, signs, signals, pictures, or sounds for

the purpose of executing such scheme or artifice, shall be fined

not more than $1,000 or imprisoned not more than five years,

or both. Added July 16, 1952, c. 879, §18 (a), 66 Stat. 722,

and amended July 11, 1956, c. 561, 70 Stat. 523.

18 U.S.C. §1951: Interstate and Foreign Travel or Transportation

in Aid of Racketeering Enterprises

(a) Whoever travels in interstate or foreign commerce or uses

any facility in interstate or foreign commerce, including the

mail, with intent to-

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful

activity; or -

(3) otherwise promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or car-

rying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts

specified in subparagraphs (1), (2), and (3), shall be fined not

more than $10,000 or imprisoned for not more than five years

or both.

(b) As used in this section “unlawful activity” means (1) any

business enterprise involving gambling, liquor on which the

Federal excise tax has not been paid, narcotics or controlled

substances (as defined in section 102 (6) of the Controlled

Substances Act), or prostitution offenses in violation of the

laws of the State in which they are committed or of the United

States, or (2) extortion, bribery, or arson in violation of the

laws of the State in which committed or of the United States.

liquor shall be conducted under the supervision of the Secretary

of the Treasury. As amended Pub.L. 91—513, Title If, §701(i)

(2), Oct. 27, 1970, 84 Stat. 1282.

26 U.S.C. §6041: Information at Source

(a) Payments of $600 or more.—All persons engaged in a

trade or business and making payment in the course of such

trade or business to another person, of rent, salaries, wages,

premiums, annuities, compensations, remunerations, emoluments,

or other fixed or determinable gains, profits, and income (other

than payments to which section 6042(a) (1), 6044(a) (1), or

6049(a) (1) applies, and other than payments with respect to

which a statement is required under the authority of section

6042(a) (2), 6044(a) (2), 6045, 6049(a) (2), or 6049(a) (3),

of $600 or more in any taxable year, or, in the case of such

payments made by the United States, the officers or employees

of the United States having information as to such payments and

required to make returns in regard thereto by the regulations

hereinafter provided for, shall render a true and accurate return

to the Secretary or his delegate, under such regulations and in

such form and manner and to such extent as may be prescribed

by the Secretary or his delegate, setting forth the amount of

such gains, profits, and income, and the name and address of

the recipient of such payment.

(b) Collection of foreign items.—In the case of collections

of items (not payable in the United States) or interest upon the

bonds of foreign countries and interest upon the bonds of and

dividends from foreign corporations by any person undertaking

as a matter of business or for profit the collection of foreign

payments of such interest or dividends by means of coupons,

checks, or bills of exchange, such person shail make a return

according to the forms or regulations prescribed by the

Secretary or his delegate, setting forth the amount paid and the

name and address of the recipient of each such payment.

76 Stat. 1058.

(d) Recipient to furnish name and address.—When necessary

to make effective the provisions of this section, the name and

address of the recipient of income shall be furnished upon

demand of the person paying the income. Aug. 16, 1954,

c.736, 68A Stat. 745; Oct. 16, 1962, Pub.L. 87-834, §19(f),

76 Stat. 1058.

26 U.S.C. §7206 (2): Fraud and False Statements

Any person who-—

* * * *

(2) Aid or assistance.- Willfully aids or assists in, or procures,

counsels, or advises the preparation or presentation under, or in

connection with any matter arising under, the internal revenue

laws, of a return, affidavit, claim, or other document, which is

fraudulent or is false as to any material matter, whether or not

such falsity or fraud is with the knowledge or consent of the

person authorized or required to present such return, affidavit,

claim, or document; or

*x* *e* k *

shall be guilty of a felony and, upon conviction thereof, shall

be fined not more than $5,000, or imprisoned not more than

3 years, or both, together with the costs of prosecution.

Aug.16, 1954, c. 736, 68A Stat. 852.

28 U.S.C. §1254 (1): Courts of Appeals: Certiorari; Appeal;

Certified Questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition of

judgment or decree;

* * & *

26 C.F.R. §1.6041.5: Information as to Actual Owner

When a person receiving a payment described in section 604}

is not the actual owner of the income received, the name and

address of the actual owner shall be furnished upon demand

ISA

of the persor paying the income, and in default of compliance

with such demand the payee becomes liable for the penalties

provided. See section 7203.

Md. Crim. Law Code Ann. §24: Bribing Participant, etc., in

Athletic Contest; Witnesses in Prosecution

Any person or persons who shall bribe or attempt to bribe

any persons participating in or connected in any way with any

athletic contest held in this State shall be deemed guilty of

bribery, and on being convicted thereof shall be fined not

less than one hundred dollars ($100.00) nor more than five

thousand dollars ($5,000.00), or, in the discretion of the court

shall be sentenced to be imprisoned in the penitentiary of this

State tor not less than six months nor more than three years,

or both fined and imprisoned; and any person so bribing or

attempting to bribe or so demanding or receiving a bribe shall

be a competent witness, and compellable to testify against

any person or persons who may have committed any of the

aforesaid offenses; provided, that any person so compelled to

testify in any such case shall be exempt from trial and punish-

ment for the crime of which such person so testifying may have

been a participant. (An. Code, 1951, §30; 1939, ch. 612.)

l6A

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