Petition — Blitzstein v. United States

No. 76-1336 SARI

Supreme Court, U. S, |

‘me. FILED

Iu the. MAR 28 1977

Supreme Cowt of the Un R Piatra, WR., CLERK |

Ocroser Term, 1976

HERBERT BLITZSTEIN,

Petitioner,

Vs. 7

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

GERALD M. WERKSMAN

DOUGLAS K. MORRISON

100 N. LaSalle Street

Chicago, Illinois 60602

OSCAR GOODMAN

230 Las Vegas Blvd. So.

Las Vegas, Nevada 89101

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

aE

PAGE

IT LAT I SS EOL OR LE ee 2

RESETS Se ER OOTY YC pS Pt OI TI 2

Statutory Provision Involved o........0....cccccecceceeceeeeeeeeee 2

I 0 i 4

I 5

Witnesses for the Government _.........0000.00000 0. 5

i i 19

Evidence contained in the wiretap transcripts .... 22

Reasons for Granting the Writ 2.000020 30

Petitioner Was Denied Due Process And The Equal

Protection Of The Law Because The Trial Judge Re-

fused To Instruct The Jury On An Essential Element

Of The Charged Offense And On The Definitions Of

Certain Technical Terms As Those Terms Have Been

NS Be ee TIE, esecssicrninisliinditnresiennsiinsenncesiscnne 30

CR eancesherncctinnreenicnpninccmanssannienaicstiantaratinnsataniacnineceantie 38

Appendix A—Order affirming judgment issued

I Te cinsnincentasincccsessiranitlimttiineniaviindind App. 1

Appendix B—Order denying Petition for Rehearing

entered February 24, 1977 2.0.2.2. 2-2...--.-e0-ee-ee-e0e+ App. 8

Appendix C—Instructions given by the Court ........ App. 9

Appendix D—Refused Instructions ........................ App. 21

> li :

AUTHORITIES CITED

Cases

PAGE

Bohn v. United States, 260 F.2d 773 (8th Cir. 1958),

I 34

Ullman v. Overnite Transportation Company, 508 F.

2d 676 (5th Cir. 1975), rehearing denied, 511 F.2d

SUI ' ‘pihibstnentutamnsnienenessheveiiebiiatiietibinSiaagintipsitieapihehbinniliceisenasenpligitdsie 32

United States v. Crockett, 506 F.2d 759 (5th Cir. 1975) 34

United States v. Maude, 481 F.2d 1062 (D.C. Cir.

STEED. sdesiaiinsgithinlgnyeiseniiaattianictiibiaialniininiedad thle ataiaail 32, 34

United States v. Riehl, 460 F.2d 454 (3rd Cir. 1972) .... 36

United States v. Sacco, 491 F.2d 995 (9th Cir. 1974) .... 34

United States v. Schaefer, 510 F.2d 1307 (8th Cir.

1975), cert. denied, U.S. ——, 95 S.Ct. 1975 ..32, 34

United States v. Schilleci, 545 F.2d 519 (Sth Cir. 1977) 37

United States v. Young, 463 F.2d 934 (D.C. Cir. 1972) 31

Williamson v. United States, 332 F.2d 123 (5th Cir.

EEE | cndocenisincesnnotencsiientlensnsadeciattactisaiuaiiitapetanicliselbaiiiditatuaniainninn 37

Other Authorities

2 United States Code Cong. & Adm. News (1970), at

BP GEE writrcnencectindnienpsesnrniniinnstennetanntiitantnineneaciienscneciiiaiteneets 36

In the |

Supreme Cowt of the United States

Ocroser Term, 1976

No.

HERBERT BLITZSTEIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

TO: The Honorable The Chief Justice

and Associate Justices of the

Supreme Court of the United States.

The petitioner, Herbert Blitzstein, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Seventh Circuit affirming the

judgment of conviction entered by the United States Dis-

trict Court for the Northern District of Illinois, Eastern

Division.

OPINION BELOW

The United States Court of Appeals for the Seventh

Circuit issued its judgment in the form of an unpublished

order pursuant to Seventh Circuit Rule 35. The order,

issued February 4, 1977, has not been and will not be of-

ficially reported. It is printed as Appendix A to this

Petition. (App. 1) The order denying petitioner’s timely

Petition for Rehearing, entered on February 24, 1977, is

printed as Appendix B to this Petition. (App. 8)

JURISDICTION

The jurisdiction of this Court is invoked under Title 28,

United States Code, Section 2154(1).

STATUTORY PROVISION INVOLVED

Title 18, United States Code, Section 1955

§ 1955. Prohibition of illegal gambling businesses

(a) Whoever conducts, finances, manages, super-

vises, directs, or owns all or part of an illegal gambling

business shall be-fined not more than $20,000 or im-

prisoned not more than five vears, or both.

(b) As used in this section—

(1) ‘‘illegal gambling business’? means a

gambling business which—

(i) is a violation of the law of a State or

political subdivision in which it is conducted;

(ii) involves five or more persons who con-

duct, finance, manage, supervise, direct, or

own all or part of such business; and

(iii) has been or remains in substantially

continuous operation for a period in excess of

thirty days or has a gross revenue of $2,000

in any single day.

(2) ‘‘gambling’’ includes but is not limited to

pool-selling, bookmaking, maintaining slot ma-

chines, roulette wheels or dice tables, and conduct-

ing lotteries, policy, bolita or numbers games,

or selling chances therein.

(3) ‘*State’’ means any State of the United

States, the District of Columbia, the Common-

wealth of Puerto Rico, and any territory or pos-

session of the United States.

(c) If five or more persons conduct, finance, man-

age, supervise, direct, or own all or part of a gambling

business and such business operates for two or more

successive days, then, for the purpose of obtaining

warrants for arrests, interceptions, and other searches

and seizures, probable cause that the business receives

gross revenue in excess of $2,000 in aay single day

shall be deemed to have been established.

(d) Any property, including money, used in viola-

tion of the provisions of this section may be seized and

forfeited to the United States. All provisions of law

relating to the seizures, summary, and judicial for-

feiture procedures, and condemnation of vessels, vehi-

cles, .nerchandise, and baggage for violation of the

customs laws; the disposition of such vessels, vehicles,

merchandise, dd baggage or the proceeds from such

sale; the remission or mitigation of such forfeitures;

and the compromise of claims and the award of com-

pensation to informers in respect of such forfeitures

shall apply to seizures and forfeitures incurred or al-

leged to have been incurred under the provisions of

this section, insofar as applicable and not inconsistent

with such provisions. Such duties as are imposed upon

the collector of customs or any other person in respect

to the seizure and forfeiture of vessels, vehicles, mer-

chandise, and baggage under the customs laws shall

be performed with respect to seizures and forfeitures

of property used or intended for use in violation of

4

this section by such officers, agents, or other persons

as may be designated for that purpose by the Attorney

General.

(e) This section shall not apply to any bingo game,

lottery, or similar game of chance conducted by an

organization exempt from tax under paragraph (3) of

subsection (c) of section 501 of the Internal Revenue

Code of 1954, as amended, if no part of the gross

receipts derived from such activity inures to the

benefits of any private shareholder, member, or em-

ployee of such organization except as compensation

for actual expenses incurred by him in the conduct of

such activity.

Added Pub.L. 91-452, Title VIII, § 803(a), Oct. 15,

1970, 84 Stat. 937.

STATEMENT OF THE CASE

Petitioner, Herbert Blitzstein, was indicted with five

other defendants in a one count indictment charging viola-

tion of Title 18, United States Code, Section 1955. Said

indictment was returned in the United States District Court

for the Northern District of Illinois on October 8, 1974.

Prior to the trial, which was before a jury, one of peti-

tioner’s co-defendants pleaded guilty. Of the remaining

five defendants who stood trial, one was dismissed on the

government’s motion prior to the close of its case in chief ;

one co-defendant was found not guilty by the jury; no ver-

dict was reached concerning two of tle co-defendants (mis-

trials as to them were ordered), and the government sub-

sequently dismissed the indictment against both; only

petitioner was found guilty by the jury, judgment was en-

tered thereon, and a sentence of one year and one day

incarceration was imposed.

or

STATEMENT OF FACTS

Witnesses for the Government

Testimony of Floyd Hays

Floyd Hays, an F.B.1. agent, supervised the intercep-

tion of the wiretaps in this case between December 26,

1973 and January 9, 1974. (Tr. 32) Duplicate tapes of all

the monitored conversations and a composite tape of cer-

tain selected conversations made from the duplicate tapes

and the written transcripts of the conversations contained

on the composite tape were identified by the witness. (Tr.

33-54)*

On December 3, 1973 Hays was on the 28th floor of an

apartment building at 1636 North Wells, Chicago, when,

at approximately 3:43, he observed the defendants Her-

bert Blitzstein and Morton Shapiro’ enter the rear of the

Eugenie Square apartment building. (Tr. 51-52) At ap-

proximately 3:47, he observed defendant Blitzstein in

apartment 2412 using the telephone. A minute later he

saw defendant Shapiro in the apartment. At 6:10, he saw

defendant Blitzstein assembling bits of paper on a table

in front of him. At 7:10 the light in the apartment went

out and six minutes later he saw defendants Blitzstein

and Shapiro leave the apartment building. (Tr. 52)

During the seven other times the witness conducted sur-

veillance at the same apartment, he observed defendant

1 Wiretaps were placed on telephone numbers (312) 649-0724 and

(312) 649-0753, both located at apartment 2412, in the Eugenie

Square Apartments, 1662 North LaSalle Street, Chicago, LIllinois.

2 Shapiro was one of the co-defendants about whom the jury could

not reach a verdict.

6

Blitzstein on one other occasion and defendant Shapiro on

two other occasions. (Tr. 53) He saw the defendant Blitz-

stein on December 7, 1973 and defendant Shapiro on De-

cember 7 and 14, 1973. (Tr. 54)

Of the approximately 850 conversations transcribed,

thirty to thirty-five were selected for the composite tape.

(Tr. 62-63) Agent Hays and members of the United States

Attorney’s Strike Force selected the conversations con-

tained on the composite tape. The composite was grouped

according to individual. (Tr. 64)

The wiretaps were attached on December 28, 1973 and

removed on January 10, 1974. No conversations were in-

tercepted on January 10. 1974. (Tr. 78)

During the course of his surveillance, Agent Hays never

saw defendant Sherman Goldman,’ or Edwin Greenspan,

Irving Gordon or James Rittenberg enter the building at

1660 Nortn LaSalle. He did hear defendant Goldman

speaking on the telephone from that building. (Tr. 83-84)

Testimony of Arthur R. Pfizenmayer

Arthur R. Pfizenmayer is an F.B.I. agent who conducted

surveillance of Apartment 2412 of the Eugenie Square

Apartments on December 3, 1973. (Tr. 98) He saw the

defendants Blitzstein and Shapiro at that apartment

building on December 3, 6, 7, 10, 12 and 16, 1973. He did

not see them there on December 14, 1973. (Tr. 98-99) He

saw them in the apartment itself on December 3, 7, 12 and

16, 1973. (Tr. 100) On December 16, 1973 he saw defendant

Sherman Goldman in the apartment. (Tr. 101)

* Goldman was the other co-defendant about whom the jury was

unable to agree.

Testimony of Daniel Dent

Daniel Dent is an FBI agent. On December 28, 1973, at

3:30 p.m. he was conducting surveillance of apartment

2412 in Eugenie Square Apartments. (Tr. 106) He ob-

served defendants Blitzstein and Shapiro in the apart-

ment, sitting at a table, making telephone calls and writ-

ing on paper. He observed them leaving the apartment

at 7:50. (Tr. 107) He also saw defendants Blitzstein and

Shapiro at the apartment on December 12 and 16, 1973.

(Tr. 108) He saw the two defendants enter the apartment

building on December 10 and 29, 1973, and defendant

Blitzstein alone on December 31, 1973. The witness saw

defendant Goldman at the apartment on December 16,

1973.

Testimony of Sherman Noble

Sherman Noble is an F.B.I. agent. (Tr. 110) On Octo-

ber 9, 1974 he and Agent Deaton went to the residence of

defendant Goldman and placed him under arrest. (Tr.

115) The witness stated that defendant Goldman told

him, after the arrest, ‘‘. . . that the reason that he [Gold-

man] was involved in this is because he was doing favors

to friends. . . .”’ Goldman also stated that what he was

doing was not in violation of the illegal gambling statute

because there were not five or more individuals involved.

(Tr. 117)

Testimony of Irving Gordon‘

Irving Gordon is in the leasing and financing business

and resides in Skokie, Illinois. (Tr. 142)

+ Gordon was considered to be a member of petitioner’s bookmak-

ing business by the Court of Appeals.

He had known defendant Goldman for eight or nine

years. Goldman introduced him to defendant Blitzstein

and Goldman and Blitzstein introduced him to defendant

Shapiro. (Tr. 146-148)

In early October, 1973, Gordon was placing bets on foot-

ball games with bookmakers named Gold, Mazur, Garris

and defendant Blitzstein. (Tr. 148-149) They were all

his own bets. Starting in September, 1973, he bet with

Blitzstein during the entire football season. He had a

telephone conversation with defendant, Blitzstein in early

October, 1973. (Tr. 149) Blitzstein asked Gordon if he had

any more lines and if he could place any bets for Blitz-

stein. Gordon said he could do so and subsequently placed

four or five bets for him ranging from $300 to $1,300 per

game. Gordon continued placing bets for Blitzstein

through the length of the football season. (Tr. 151) Gor-

don would place 10 to 20 bets with other bookmakers for

Blitzstein. The amounts of the bets would be between $300

and $1,800 per game. Blitzstein would call Gordon and tell

him what bets to make. (Tr. 152) Blitzstein would call

Gordon hack to confirm that the bets were made. A couple

of times during the season, the witness would make bets

for Blitzstein on both sides of a game. While making bets

for Blitzstein, Gordon continued to bet with Blitzstein.

(Tr. 154) “4

The witness remembered a telephone conversation he

had with defendant Blitzstein in mid-October, 1973, in

which Blitzstein asked him if he could place more bets,

and said that he was associated with ‘‘Moe’’ [defendant

Shapiro]. (Tr. 157)

Defendant Goldman told Gordon in early December,

1973, that he was going to help Blif@tein in the office to

make phone calls. (Tr. 159-161)

9

Gordon made bets five to ten times at defendant Gold-

man’s request and once or twice at defendant Shapiro’s

request. (Tr. 162) The bets would be for amounts between

$300 and $1,800 per game. (Tr. 163)

When Gordon made bets for the three individuals, they

would straighten up accounts in cash the following week.

The settling would take place at a bowling alley or at de-

fendant Goldman’s store. (Tr. 164) Gordon saw Mr.

Greenspan settle up with defendant Goldman at the bowl-

ing alley. (Tr. 165-166)

In his personal bets, Gordon would bet and settle up

with defendants Blitzstein and Goldman. One total was

kept. (Tr. 165) When he bet with other bookmakers for

defendants Shapiro or Goldman the witness would settle

up with defendants Goldman and Blitzstein. (Tr. 166)

Blitzstein would call Gordon and they would settle up the

amount due and owing.

The witness would occasionally settle up with the defen-

dants for his friend, Mel Goodman. (Tr. 167) The witness

would make 4 or 5 bets a week with defendants Blitzstein

and Goldman for other persons. (Tr. 168)

The term ‘‘dollar’’ refers to a $100 bet. ‘‘Nickle’’ re-

fers to $500. (Tr. 180) ‘‘Dime”’ refers to $1000. (Tr. 182)

When Gordon asked defendant Goldman if he was

‘‘writing a lot of business,’’ Gordon was referring to foot-

ball bets. (Tr. 181)

Gordon stated that he received a television set from de-

fendant Blitzstein ‘‘for helping him.’’ (Tr. 183) The tele-

vision set was the only compensation he received from

anyone. Defendant Blitzstein would give presents to many

of his customers. (Tr. 186) As far as Gordon knew, the

10

only persons involved in the business were Goldman, Sha-

piro and Blitzstein. (Tr. 188)

Gordon had a bookmaking relationship with defendant

Goldman which was separate and apart from the Blitz-

stein-Shapiro-Goldman relationship. (Tr. 189) He denied

that he ever did not place a bet for defendant Blitzstein,

but held it for himself. (Tr. 190) However, if he could

make the Blitzstein bet at more favorable odds than Blitz-

stein expected, the witness would not tell Blitzstein about

it. (Tr. 191-192)

Gordon made the bets for defendant Rlitzstein, in part,

because he wanted to find out which were Blitzstein’s

‘*hot’’ teams for his own betting selections. (Tr. 195, 204-

205)

Defendant Goldman was Gordon’s bookmaker until 1972

or 1973. (Tr. 197-198) Goldman did not. engage in book-

making between the time he told Gordon that he was leaving

the business and the time he told Gordon that he was

going to help out with the phones. (Tr. 198)

The witness stated that he was not in any way in busi-

ness with defendant Blitzstein. (Tr. 199)

Gordon had been betting for twelve to fifteen years.

(Tr. 202)

When Blitzstein stated to Gordon that he [Blitzstein]

was ‘‘a follower’’ he meant that he follows information

regarding games he was betting on.

Gordon had dealt with 20 to 30 bookmakers and never

one as ‘‘sick’’ as Blitastein. (Tr. 205) Blitzstein bet ‘‘with

both hands’’ and was too busy making bets to man his

bookmaking business. (Tr. 206)

1l

~

Gordon both ‘‘bushed’”® and ‘‘jacked’*® game. in his

dealings with Blitzstein. He also ‘‘sided’’’ games. (Tr.

208-209)

When Blitzstein complained to Gordon that as much as

he bet was as much as he took in, it was because Blitzstein

did not wish to be at an even account. (Tr. 211)

When Goldman told Gordon that ‘‘we need Minnie,’’

Goldman was referring to the private operation the two

[Goldman and Gordon] had separate and apart from any-

one else. When Goldman then stated ‘‘So do we,’’ he was

referring to himself, Blitzstein and Shapiro. (Tr. 213)

Depending on the points, it was not unusual for Blitz-

stein to bet on both sides of a game. (Tr. 217)

5“Bushing” refers to a bettor placing a bet for another bettor at

a more favorable than the source of the wager expects, wherein the

first bettor keeps the advantage for himself. For example, if Blitz-

stein told Gordon to bet on the Bears at —6% and Gordon could

bet the game at —5% he would do so and tell Blitzstein that the

bet was made at —6%. If the game ended with the Bears winning

by 6, Gordon would collect from both Blitzstein and the other book-

maker. Gordon referred to this situation as “a jack with no in-

vestment.” (Tr. 193) See n.6, infra.

6 “Jacking” is a device used by bettors which creates a possibility

of a large reward with only a small risk. If Blitzstein had a game

at —7 and another bookmaker had it at —5, Gordon would place

bets with both bookmakers. If the game fell at 6, Gordon would

win from both; if it fell at 5 or 7 he would win one and t'e one;

if there was any other result, all Gordon would lose would be the

10% commission on the losing bet.

7‘Siding” is similar to jacking except that the point spread is

only one point different between the two bookmakers. The bettor’s

goal here is a win and a tie, but the risk remains just the 10%

commission on the losing bet.

12

Gordon thought that it would be possible that Blitzstein

would bet against his opinion because the office figure was

against his opinion. (Tr. 219-220)

Testimony of Edwin Greenspan

Edwin Greenspan had a conversation with defendant

Goldman in September, 1973. (Tr. 223) Goldman told the

witness that he [Goldman] was out of business and that,

if Greenspan wanted an ‘‘out’’® for the coming football

season, he could make bets with defendant Blitzstein. (Tr.

224) Greenspan began betting with Blitzstein after talk-

ing to Goldman. (Tr. 225) He would bet six to seven games

per week, wagering between $100 and $1,000 per game.

(Tr. 226) Greenspan and defendant Goldman would settle

up on Thursday evenings on the bets made with Blitzstein.

During the third week of the football season, defendant

Blitzstein asked Greenspan if he knew of any other book-

makers’ lines. The witness told Blitzstein the lines of

other bookmakers including that of the defendant Anthony

Cassel. (Tr. 227) Following this, defendant Blitzstein

asked the witness to make some bets for him with other

bookmakers. The witness agreed and made bets for Blitz-

stein until January 1, 1974. (Tr. 228) Defendant Gold-

man and Shapiro would also ask the witness !o make bets

for them and tell them the line. (Tr. 230) Greenspan be-

gan by placing about $2,000 in bets per week for Blitz-

stein. After about six or seven weeks that amount in-

creased to $500 to $2,000 per game on two to eight games

per week. (Tr. 228-229) Greenspan told Blitzstein and the

other bookmakers that he would not be responsible for

the bets he placed for Blitzstein. (Tr. 229) Greenspan

would settle up the bets once a week with defendant Gold-

*An “out” is a person who will accept bets.

13

man. (Tr. 231-232) One account was kept for the bets

made for Blitzstein, Shapiro, and Goldman. (Tr. 231)

Occasionally defendant Blitzstein would come to the bowl-

ing alley and speak with defendant Goldman. (Tr. 232)

Greenspan was not a partner of Blitzstein, Shapiro or

Goldman. (Tr. 249) He never received any compensation

from any of the three, only a pair of cufflinks as a Christ-

mas gift. (Tr. 251)

Greenspan was mpthing more than a bettor or player

throughout this period. He met Goldman at the bowling

alley on Thursday nights, because that was Goldman’s

regular league bowling night. (Tr. 252-253)

Greenspan made bets for Blitzstein because he believed

that Blitzstein had good and accurate information. Green-

span bet into Blitzstein throughout this whole period. (Tr.

254)

Sometimes, when betting for Blitzstein, Greenspan would

add his own funds to those of Blitzstein and make one

joint bet. (Tr. 255)

Betting is a hobby for Greenspan. (Tr. 259) In his 20

years of dealing with bookmakers he never confronted a

situation like this one. (Tr. 262)

Testimony of James Rittenberg

Rittenberg is part-owner of a nightclub. (Tr. 301) In

the fall of 1973, he had a conversation with defendant

Shapiro in which Shapiro told him that Rittenberg could

place bets with Shapiro. (Tr. 302-303) Rittenberg placed

bets with Shapiro during the 1973-74 football season. He

usually bet $50 or $100 a game and bet on two or three

games each Saturday and Sunday. In October, 1973 Ritten-

berg told Shapiro that he had friends who would like to bet.

Shapiro agreed that Rittenberg could make bets for his

14

friends. (Tr. 304) Two or three of Rittenberg’s friends

would call Rittenberg and Rittenberg would place their

bets with Shapiro. This occurred during December, 1973,

and January, 1974. The friends would bet on the line pro-

vided by Shapiro. (Tr. 306) Rittenberg assigned each bet-

tor a number so that Shapiro would not know their names.

The only exception was Witz. Witz would bet two or three

games each Saturday and Sunday for $500 a game.

Shapiro and Rittenberg could settle up accounts oncé a

week at Rittenberg’s apartment.

Shapiro knew Rittenberg’s financial condition, so he set

a limit on the amount Rittenberg could bet. No limit was

set on the amount Rittenberg could pass on in others’

bets. (Tr. 307)

Rittenberg is 32 years old and had been betting since he

was seven. (Tr. 312-313) He does not consider himself a

bookmaker. He did, at one time, accept bets from Shapiro

on basketball. (Tr. 313-317)

Rittenberg never got paid by Shapiro for giving him

bets. (Tr. 314) Occasionally a friend’s bet would not end

up with Shapiro; Rittenberg would keep it. It was a way

for Rittenberg to make a bet. (Tr. 315) Rittenberg also

invented some ‘‘numbers’’ (as code names for fictitious

bettors) so he could make bets in excess of the limit im-

posed by Shapiro. (Tr. 315-316)

Rittenberg did not feel obliged to forward all of his

friends’ bets to Shapiro. (Tr. 316)

Testimony of Charles J. Witz

Charies J. Witz, an attorney, placed bets with defendant

Blitzstein and, on very rare occasions, with defendant

Goldman during the period from September, 1973 to Janu-

ary, 1974. (Tr. 339-340) Witz knew Blitzstein as ‘‘Dave.’’

ae we ee eee reece

= meee ene ee ee ee + -

15

(Tr. 340) Blitzstein would call Witz to tell him the line

and Witz would bet then or call Blitzstein later. (Tr. 341)

The account would generally be settled up at Witz’s office

by Blitzstein. (Tr. 343)

Witz would bet between $500 and $2,000 per game and,

on an average, between 8 to 10 games per week. (Tr. 343)

The witness also placed bets with Mr. Rittenberg by

telephone. (Tr. 344) Rittenberg told Witz that he was not

keeping the bets himself but giving them to someone else.

(Tr. 346) Witz did not share in any business venture

with Blitzstein. (Tr. 350) The witness looked to Ritten-

berg for payment on bets that he made with him, (Tr. 353)

but he did not regard Rittenberg as his bookmaker. (Tr.

352)

Blitzstein had a reputation for getting information and

being sharp and people were interested in what Blitzstein

was doing as a bettor. (Tr. 355)

Blitzstein was ‘‘flamboyant in his approach’’ to book-

making —¢aking positions contrary to those taken by

everyone else. (Tr. 357) Blitzstein was aggressive, took

betting positions, and did not wait to make money on the

‘vig.’ (Tr. 358)

Testimony of Norman Meisel

Norman Meisel was a buyer and former druggist who

took bets from defendant Blitzstein between October or

November, 1973 and January, 1974. (Tr. 328) Meisel then

placed the bets with his cousin. (Tr. 329) Meisel told

Blitzstein the line being used by Meisei’s cousin. (Tr. 329)

Meisel would settle up each week with defendant Blitz-

stein.

*The “vig” or “vigorish” is the 10% commission paid to the

bookmaker on losing bets.

16

Blitzstein would bet between four and six thousand dol-

lars on football games through Meisel. (Tr. 330)

Meisel received no compensation for placing defendant

Blitzstein’s bets; he felt that he was doing a favor for

Blitzstein. (Tr. 336)

Testimony of R, Philip Harker

R. Philip Harker, an F.B.I. agent, testified as the gov-

ernment’s expert on gambling. He stated that sports bet-

ting is primarily based on the line, that is, a number of

points either added to the underdog’s score or subtracted

from the favored team’s score which will supposedly equal-

ize the two teams for betting purposes. (Tr. 392-393) Bet-

tors generally bet with bookmakers at the rate of 11 to

10; that is, if the bettor wins a $100 bet the bookmaker

will owe him $100 and if the better loses, he will owe the

bookmaker $110. (Tr. 392)

Because of the 11 to 10 odds, there are a number of ways

that bookmakers try to make a profit. They often try to

achieve an absolute even balance of bets on both sides of

a game, insuring them a 10% profit. (Tr. 392-393) The

bookmaker has two means to achieve this even ratio. The

first is to change the line to encourage betting on one team

and discourage betting on the other. (Tr. 393) The second

method to achieve the desired balance is by layoff betting.

Agent Harker defined a layoff thusly:

‘*. . . layoff is simply a bet by one bookmaker with

another bookmaker in an effort to tend to achieve

what the bookmaker feels is a desirable ratio of bet-

ting on both sides of the game.”’

Harker stated that the desirable ratio may not be an even

balance as a bookmaker may wish to take a risk on a par-

ticular game.

Agent Harker stated that a bookmaker tries to get the

‘‘Las Vegas line’’ at the inception of his betting. The

17

bookmaker would then alter the line to fit his own needs.

(Tr. 394) A line is absolutely essential to a bookmaker as

well as is his knowledge of other. bookmakers’ lines. The

bookmaker wishes to know other bookmakers’ lines be-

cause he wants to know how their bets are coming in and

what line he will have to layoff at. Line information is

generally disseminated by telephone. (Tr. 395)

Layoffs are normally made throughout the betting pe-

riod; sometimes even before a bookmaker has any bets on

a particular game. He will either make these early layoffs

in anticipation of his bettors’ action or because he wishes

to assume a gambling position on the game. (Tr. 396-397)

Bookmakers sometimes find it necessary to bet on both

sides of a game to keep their desired balances. This is

called ‘‘buying back a bet.’’ (Tr. 398)

When a bookmaker lays off a bet, he must give up the

11 to 10 odds. (Tr. 399)

Occasionally; a bookmaker will use someone else to bet

for him because the bookmaker wishes to keep the source

of the bet a secret. This is commonly called the ‘‘beard

situation.’’ A bookmaker may bet more then he takes in

on a particular game in order to create an imbalance be-

cause he wishes to take a risk on one side of the game.

(Tr. 400-401)

Most wagers to a bookmaker are made by telephone.

There are a number of slang expressions indicating the

amount being bet—‘‘quarter’’ ($25), ‘‘half’’ ($50), ‘‘dol-

lar’? and ‘‘buck’’ ($100), ‘‘two dollars’’ ($200), ‘‘five

cents’’ or ‘‘nickle’’ ($500), ‘‘dime’’ ($1,000), ‘‘big nickle’’

or ‘‘large nickle’’ ($5,000). (Tr. 402)

Bookmakers settle up with each other either at a specific

time or when the debt between them reaches a specific

amount. (Tr. 403)

18

A ‘‘lay’’ bet or a ‘‘take’’ bet (giving or taking the

points) can also be a layoff bet. (Tr. 404) Bookmakers

rarely use specific words when making layoff bets. (Tr.

405)

Agent Harker examined the tapes and transcripts of

the instant case and reached certain opinions. (Tr. 411)

He believed that a gambling business existed. (Tr. 413) It

was his opinion that wagers were placed on football games

between December, 1973 and the beginning of 1974 and

some basketball games after January 1, 1974. He also had

the opinion that the business handled in excess of $2,000

on at least one day. That day was December 31, 1973.

(Tr. 415)

Agent Harker’s opinion was that the gambling business

received line information from ‘‘John’’ in the western

part of the country and that the partnership exchanged

line information among themselves. (Tr. 416)

Agent Harker’s opinions were: that defendants Sha-

piro and Goldman assisted Blitzstein directly; defendant

Malmenato assisted Blitzstein by placing layoff bets of the

operation with other bookmakers; that Rittenberg fun-

neled bets to the operation as an agent; that Gordon took

bets as a bookmaker and also bearded Blitzstein’s layoffs;

that Greenspan’s and Meisel’s roles were the same as

Malmenato’s; and that all the bets made by Gordon,

Greenspan, Meisel and Malmenato for Blitzstein were

related to Blitzstein’s bookmaking business. (Tr. 416-423)

Agent Harker only listened to selected portions of the

tapes two weeks prior to testifying. The government

selected the portions which he listened to. (Tr. 427-428)

© The jury disagreed: Malmenato was found not guilty.

19

Agent Harker testified that Blitzstein made layoff bets

on three football games, which involved the teams of

Houston, Tulane, Tuburn and Texas Tech. Houston played

Tulane in one of the games. (Tr. 478) However, he never

compared the bets made by Blitzstein with Blitzstein’s

bookmaking balances for any game. (Tr. 499-536) Harker

stated that there was no way he could reach an overall

figure. (Tr. 499-500) He stated that this was not neces-

sary to determine if a bet was a layoff. (Tr. 500)

Agent Harker stated that a bookmaker cannot make a :

bet without it being a layoff. (Tr. 518-519)

A ‘‘beard’’ usually shares in the profits of the actual

bettor. (Tr. 513)

‘‘Layoff’’ is a term of art, subject to interpretation,

(Tr. 526) Harker considered any bet made by a bookmaker

which has the effect of getting him into the financial situa-

tion he wishes to be in as a layoff bet. (Tr. 544-545)

A bookmaker’s line changes for many reasons. Blitz-

stein changed his line frequently. (Tr. 547) Lines vary

from city to city and region to region. (Tr. 552)

Harker seriously doubted that Blitzstein ever asked any-

one to make a bet on a team he did not personally expect

to win. (Tr. 556-557)

Witness for the Defense

Testimony of Sherman Goldman

Goldman is a defendant in the case. He owns a hotdog

stand in Chicago. (Tr. 654)

Prior to April, 1973 he was a bookmaker. He began

bookmaking in 1952. (Tr. 655) Goldman discussed some

of the terminology of bookmaking, the procedures of the

business, and the practice of layoff betting. (Tr. 656-658)

He described layoff betting as a method used by book-

makers to avoid gambling on a particular game. He has

never known a bookmaker to make an ‘‘anticipatory lay-

off.’’ (Tr. 659) He had never heard of the term or the

practice until this trial.

A layoff bet merely transfers a customer’s bet from one

bookmaker to another; it is not a bookmaker’s own bet.

(Tr. 660) He has never heard of a bookmaker using a

‘*beard’’ to place a layoff bet. (Tr. 661)

Goldman was tendered to the court as an expert on

gambling. (Tr. 667)

Irv Gordon was a customer of Goldman when he was

a bookmaker. (Tr. 669) When Goldman quit the business,

he told Gordon to contact Blitzstein. (Tr. 670) Basically

the same procedure was followed with Goldman’s former

customers, Greenspan and Witz. (Tr. 670-674)

In early December, 1973 Blitzstein called Goldman and

told him that he (Blitzstein) was too busy on the phone

making bets and he needed someone to handle his cus-

tomers. (Tr. 674) Goldman did so on Sundays during the

football season. He stopped doing so on January 1, 1974.

(Tr. 675)

The witness handled the settling up of gambling debts

between Blitzstein and Gordon and Greenspan at a bow]l-

ing alley on Thursday nights. (Tr. 676-677)

Goldman was shown a chart of incoming bets on par-

ticular football games and bets made by Blitzstein on

those games. (Tr. 680) He explained that the fluctuation

in the line occurred to keep the bets even until Blitzstein

decided which team he favored in the game. Then, Blitz-

stein set the line to encourage betting on the side he

thought would lose, disregarding the prevailing line used

by other bookmakers. (Tr. 683)

In the Minnesota-Dallas football game, Blitzstein fa-

vored Minnesota. He adjusted his line accordingly. The

21

customers bet $1150 on Minnesota and $8700 on Pallas.

(Tr. 683)

Blitzstein adjusted his line because he wanted to gam-

ble, not, as in the usual case, because he wanted to reduce

his risks. (Tr. 684) On the Minnesota game, Blitzstein

also made personal bets on Minnesota of $3,800. (Tr. 685)

These were not layoff bets. (Tr. 686)

On the Ohio State-Southern California Rose Bow! game,

Blitzstein received $8,650 in bets on Ohio State and $10,-

625 in bets on Southern California. If Blitzstein was going

to layoff on the game, he would have bet $2,000 on South-

ern California. (Tr. 687) In fact he bet $6,050 on Ohio

State. (Tr. 688)

In the Texas-Nebraska Cotton Bowl game, Blitzstein’s

bettors had wagered $7,100 more on Nebraska than on

Texas. Instead of laying off the excess, Blitzstein bet an

additional $4,900 on Texas, which increased rather than

decreased the risk. (Tr. 689)

In the Missouri-Auburn game, there was a rumor that

five Missouri players would not play. Blitzstein accepted

$100 in bets on Missouri and $2,750 on Auburn. Blitzstein

had the same information so he bet all that he could on

Auburn, about $5,000. He adjusted his line to get people

to bet on Missouri. The bets were not layoffs because

Blitzstein did not stop when he evened up his books, but

created a risk for himself on Auburn. (Tr. 690-691)

In the Texas Tech-Tennessee game, Blitzstein’s bettors

had bet $750 more on Tennessee. Instead of laying off,

Blitzstein bet an additional $1,900 on Texas Tech. (Tr.

692)

In the Tulane-Houston game, the bettors favored Hous-

ton by $1,700. When Blitzstein was finished betting on

the game he had $5,600 risked on Tulane. (Tr. 693-694)

It was stipulated that the witness’ testimony would be

the same in respect to five or six other games. (Tr. 694-

695)

The witness never knew Blitzstein to layoff any bets.

Regardless of how his bets were coming in, Blitzstein

would bet whatever he could through whatever sources he

could on the team he preferred. (Tr. 695)

Evidence Contained in the Wiretap Transcripts

12/29/73 649-0753

10:07 a.m. John LNU to Blitzstein

John LNU called Blitzstein long distance and gave

Blitzstein a line on nine football games. John said that

he would call back.

11:10 a.m. John LNU to Blitzstein

John LNU called Blitzstein and gave him a revised line;

two games having been changed.

10:45 a.m. John LNU to Blitzstein

John LNU called Blitzstein with a change on one game’s

line.

3:32 p.m. John LNU to Shapiro

John LNU called Shapiro and told him of a number of

line changes and made two bets.

5:45 p.m. John LNU to Blitzstein

John LNU called Blitzstein with a line change on one

game.

1/1/74 649-0753

11:15 a.m. John LNU to Blitzstein

John LNU ealled Blitzstein and told him the line on a

number of games.

12/31/73 649-0753

3 :32 John LNU to Shapiro

John LNU called Shapiro and told him of a line change

on one game. _ cab

12/28/73 649-0724

11:37 a.m. Blitzstein to Malmenato

Malmenato tells Blitzstein the three lines he has re-

ceived on a number of football games. Blitzstein tells him

what lines to place bets at and on which teams. The two

discuss the bets they have made on some of the games and

how the lines on the Minnesota-Dallas game are different

than the line ‘being used elsewhere. Malmenato replies

that Blitzstein does not have to bet.

11:48 a.m. Blitzstein to Malmenato

Blitzstein tells Malmenato that he wants to bet on Texas

Tech, laying three points.

11:56 a.m. Blitzstein to Malmenato

Blitzstein calls Malmenato to check on whether or not

the bets were made. Malmenato was able to confirm some

of the bets and was waiting to hear on some others. Blitz-

stein tells him to keep betting on Texas-Tech.

12/29/73 649-0724

11:43 a.m. Blitzstein to Greenspan

Blitzstein called Greenspan to discuss the rumor that

five starting players for Missouri were suspended and

would not play against Auburn. Blitzstein was using a

24

line that was the same as one other bookmaker and one

point lower than that used by a third bookmaker. Blitz-

stein tells Greenspan to bet with the bookmaker using the

higher line. Blitzstein tells Greenspan that is ‘‘buried’’

with the Texas Tech game. Greenspan makes two bets

with Blitzstein. Blitzstein tells Greenspan to ‘‘get me

some Auburn.’’ Greenspan replies ‘‘I’ll do my very

best.’’

12/30/76 649-0724

11:46 a.m. Goldman to Greenspan

Goldman calls Greenspan and asks about two games.

Greenspan tells Goldman that the point spreads are 2 and,

he thinks, 7. Goldman tells Greenspan that they are using

242 and 7. Goldman asks if anyone is using 114. Green-

span told Goldman that, prior to the date of the conversa-

tion he made some bets at plus 1% on Minnesota. Gold-

man told Greenspan that the game is still a ‘‘pick it’’ out

West. Greenspan asks Goldman who the bettors are play-

ing in the Oakland-Miami game. Goldman replied that

the bettors were playing both sides, but ‘‘we’re favoring

Miami . . . we want Oakland money today.’’ Goldman

tells Greenspan that ‘‘we’re going to end up with a big

decision here’’ on Minnesota.

2:30 p.m. Blitzstein to Greenspan

Blitzstein calls Greenspan and asks him to make bets

on Oakland. Blitzstein complains that he does not have

enough bets on the game. Greenspan says that he would

try to make the bets.

2:52 p.m. Blitzstein to Greenspan

Blitzstein calls Greenspan and finds out that Greenspan

was able to get $500 bet for Blitzstein. They also dis-

cussed who would win the probable Minnesota-Miami

Super Bowl game.

12/31/73 649-0753

5:38 p.m. Blitzstein to Greenspan

Blitzstein calls Greenspan and finds out that the line on

the Notre Dame game is 64%. Blitzstein said that he may

need some Notre Dame money at that number because,

even though he dropped his line to six, they were still bet-

ting on Notre Dame.

1/1/74 649-0724

11:25 a.m. Goldman to Greenspan

Goldman calls Greenspan and gives him a figure. Green-

span replies, ‘‘It ain’t my play baby; that’s his play.’

Goldman tells Greenspan the line on three college bowl

games and the Super Bowl. They discussed lines being

used elsewhere. Greenspan tells Goldman that he likes

Texas, Ohio State and Penn State in that day’s games.

Goldman says that they will be pulling for him on all three

games. Goldman tells Greenspan to bet on Penn State and

Ohio State, laying the points.

12:11 p.m. Blitzstein to Greenspan

Blitzstein calls Greenspan and finds out that Greenspan

has bet $1,500 for him on Ohio State. Blitzstein tells

Greenspan that the line is different out West on all the

games, with a marked difference on the Texas-Nebraska

Cotton Bowl game. Blitzstein tells Greenspan to get him

all he can on Ohio State. Greenspan says the most he could

get is another $1,000. Blitzstein complains that he wants

to stay with Penn State but that is all that his bettors are

taking. Blitzsten then tells Greenspan to try and bet on

Penn State and forget Ohio State because he had just got-

ten a big play on that game.

12:28 p.m. Blitzstein to Greenspan

Blitzstein calls Greenspan and Greenspan tells him that

he got $1,000 bet for him. Blitzstein complains that he

cannot stay heavy on the game. They discussed another

bookmaker who Blitzstein admired because he kept his

opening line throughout the entire betting period.

1/5/74 649-0724

2:52 p.m. Shapiro to Greenspan

Shapiro calls Greenspan and tells him that he wants to

make a play on the East-West game. Greenspan does not

know the line on the game. Shapiro tells him to lay 3 on

the game if he can for $500.

12/29/73 649-0753

2:01 p.m. Blitzstein to Gordon

Blitzstein calls Gordon to review the bets made by Blitz-

stein. Blitzstein complains that all he has are ‘‘nothing

games’’ because as much as he bets his bettors bet back

to him. .

12/30/73 649-0724

11:30 a.m. Goldman to Gordon

Goldman calls Gordon. Gordon asks Goldman if he is

getting a lot of business and for the line on two games.

He then asks Goldman who Herbie is favoring. Goldman

replies, ‘‘Oakland and Minnesota.’’ Gordon tells Goldman

the line being used by three other bookmakers. Goldman

tells Gordon to bet $1,000 on one of the games. All that

Gordon could bet was $500 at the line Goldman desired.

Goldman also had Gordon bet $1,300 on Minnesota.

12:15 p.m. Goldman to Gordon

Goldman calls Gordon. Gordon asks who ‘‘we’’ need.

Goldman responds ‘‘Minnie’’ but does not know for how

much. Gordon then asks who ‘‘you’’ need,—who does

‘*your office’’ need. Gordon said that he and Goldman need

Minnesota and Oakland. Goldman responds, ‘‘So do we.’’

Gordon asks about his television. Goldman tells Gordon

27

that there was a $10 difference between their figures for

the previous day’s plays.

2:30 p.m. Blitzstein to Gordon

Blitzstein calls Gordon and tells him that he [Blitzstein ]

is a ‘‘follower,’’ and that he needs Minnesota and Oak-

land. Gordon tells Blitzstein that he could probably get

$300 bet on Oakland. Blitzstein tells him to try.

2 :34 Blitzstein to Gordon

Blitzstein calls Gordon and finds out that Gordon had

bet $500 for him on Oakland. Blitzstein asks with whom,

but Gordon does not tell him. Blitzstein asks Gordon to

bet more for him. Blitzstein asks Gordon if he had gotten

his television set. Gordon says no. Blitzstein assures Gor-

don that he will get one.

12/31/74 649-0724

6:11 p.m. Blitzstein to Gordon

Blitzstein calls Gordon and tells him that he needs Ala-

bama in the evening’s game. He tells Gordon to make a

bet on Alabama although he had earlier bet on Notre Dame

because he wanted ‘‘a decision, one way or the other.’’

Gordon tells Blitzstein that he made a $1,000 bet for him

on Alabama. Blitzstein tells Gordon that he now has $11,-

500 against $9,500; ‘‘a $2,000 decision.” Blitzstein com-

plains that this ‘‘don’t mean shit.’’

1/1/74 649-0724

11:20 a.m. Goldman to Gordon

Goldman calls Gordon and gives him the line on four

games. They check the figure and Gordon tells Goldman

the lines being used by three other bookmakers. Goldman

tells Gordon to bet $1,800 on Texas and $500 on Penn

State.

2:08 p.m. Blitzstein to Gordon

Blitzstein calls Gordon and Gordon bets $500 on Ne-

braska. Blitzstein asks if that is Gordon’s own bet and

Gordon said no, it was for someone else who waited for

an hour trying to call. Gordon also made another bet. Gor-

don told Blitzstein to tell Goldman to call a bettor who

wanted to make a bet. Blitzstein told Gordon to bet $1,000

on Ohio State.

12/30/73 649-0724

11:46 a.m. Shapiro to Rittenberg

Shapiro calls Rittenberg and tells him the line.

11:50 a.m. Shapiro to Rittenberg

Shapiro calls Rittenberg and tells him of a change in the

line.

12:07 p.m. Shapiro to Rittenberg |

Shapiro calls Rittenberg and the latter gives him two

bets for ‘‘#6.’’ The two review the balances of bettors

referred to by number.

12/29/73 649-0753

ee

10:11 | Blitzstein to Meisel

Blitzstein calls Meisel and Meisel tells him the line.

Meisel hears someone else on the phone, but Blitzstein

tells him that it was ‘‘ Moe.’’ Blitzstein tells Meisel to make

four bets at $1,000 each for him.

12/30/73 649-0753

12:53 or 2:53 p.m. Blitzstein to Meisel

Blitzstein calls Meisel and tells him to make a bet on

Oakland for as much as he can.

1/1/74 649-0724

12:18 p.m. Shapiro to Norm a/k/a Buff

Shapiro calls Buff and tells him that they got a line of

—5 on the Texas game. Buff wants to know if that num-

ber is still available. Shapiro thinks it is. Buff tells Sha-

piro of the bets he has and the line he is using on the Ohio

State game, the Texas game and the Penn State game.

Blitzstein replaces Shapiro on the telephone. Buff tells

him that he needs Texas ‘‘for short money.’’ Blitzstein

tells Buff that he could get him some Nebraska money,

but Buff does not want it. The person who wants to bet

on Nebraska bet $6,000 with Blitzstein on Southern Cali-

fornia. Blitzstein tells Buff that Texas is the ‘‘right side’’

in its game. Blitzstein tells Buff that ‘‘the man out there’’-

play it (Texas). Blitzstein then tells Buff of a number

of bets he had on the Ohio State game. Blitzstein tells

Buff that ‘‘the Southpaw”’ is playing Texas, but has not

bet on the Penn State game. Buff bet on L.S.U. in that

game. Blitzstein tells Buff that he wants to stay heavy

on Penu State.

¢ a *

REASONS FOR GRANTING THE WRIT

PETITIONER WAS DENIED DUE PROCESS AND THE

EQUAL PROTECTION OF THE LAW BECAUSE THE

TRIAL JUDGE REFUSED TO INSTRUCT THE JURY

ON AN ESSENTIAL ELEMENT OF THE CHARGED

OFFENSE AND ON THE DEFINITIONS OF CERTAIN

TECHNICAL TERMS AS THOSE TERMS HAVE BEEN

DEFINED BY OTHER COURTS.

This is an ideal case for this Court to examine and de-

fine the role that a trial judge must assume in the instruc-

tion process. While the use of standard jury instructions

has been an excellent means for expediting a tedious pro-

cedure, the philosophy of instructing a jury engendered

by their use can be counterproductive in many cases. The

trial judge in the instant case began the instruction con-

ference with the following statement:

‘

‘. . . I subscribe to the general approach in Illinois

pattern jury instructions criminal, that we undertake

to make the instructions simple, concise, unslanted and

in nonpartisan language and brief, impartial, free

from argument, neither prosecution oriented or [sic]

defense-oriented, free from error and only one in-

struction on the subject.’’ (Tr. 731)

In applying this philosophy, the trial judge gave in-

structions to the jury which were simple, concise, free of

bias, and brief. Unfortunately, they were also empty of

substance and gave virtually no assistance to the jury in

attempting to reach its verdict.

The main factual decision for the jury in the instant

case was the determination of whether or not the bets

made by petitioner’s customers were bets made in the

31

course of petitioner’s bookmaking business. The short-

hand term for bets made by a bookmaker in the course

of his bookmaking business is ‘‘lay off bets.’’ If the jury

was able to conclude that the customers were transmitting

lay off bets for Blitzstein, then it also could conclude that

these customers were also ‘‘conducting’’ Blitzstein’s busi-

ness.

If, on the other hand, the jury concluded that the bets

were not lay offs—that is, not made in the course of the

bookmaking business—then the customers who placed the

bets could not be included in Blitzstein’s business.

The importance of this determination is that an essen-

tial element of the statute—Title 18, United States Code,

Section 1955—is that ‘‘five or more persons’’ be involved

in the charged operation. In the instant case, the custom-

ers had to be included in order that the five or more per-

sons element be satisfied.

Thus, the jury, presumably a group of non-bookmakers,

had to decide whether these bets were or were not related

to the purposes of the bookmaking business. As in any

business, bookmaking has its own unique business prac-

tices which are beyond the usual store of knowledge of

the average person. Therefore, the critical terms, tech-

nical in nature and outside the average juror’s experience,

had to be authoritatively defined by the court in order

that the jury be able to apply the facts to .he technical

terminology.

In United States v. Young, 463 F.2d 934, 946 (D.C. Cir.

1972) (Robinson, J., concurring), Judge Spottswood W.

Robinson, III, stated:

‘Instructions, then, are vital cogs in the federal judi-

cial machinery. On their coverage and caliber depends

the integrity of jury verdicts and, in the long run, the

32

worth of the jury system itself. The immediate bene-

ficiaries are, of course, the litigants, and their stake

in high quality instructions is obvious. For the very

best of reasons, a party is entitled to have the jury

instructed on all essential questions of law involved

in the case. His is the right of trial by jury, and ‘[i]t

is almost, if not, as important to a [party] to have a

jury instructed on the law applicable to his particular

case by a judge, who knows the law, as to have a

jury of his own peers.’ ” (Citation omitted.)

The instructing judge’s duty to the litigants and the jury

does not end at defining the bare elements of the charged

offense. “‘This duty extends . . . to accurate definitions

of words and phrases having technical meanings.’’ United

States v. Maude, 481 F.2d 1062, 1075 (D.C. Cir. 1973)

(Emphasis added; citations omitted.)

In the instant case, the petitioner and his co-defendants

joined -in proposing instructions defining the technical

term, ‘‘lay off bet.’’ Shapiro proposed instruction num-

ber nine which was a quotation from United States v.

Schaefer, 510 F.2d 1307, 1311 n. 5 (8th Cir. 1975), cert.

denied, ........ ee , 95 S.Ct. 1975, 1980:

‘*A ‘layoff’ bet is a bet or wager placed by one book-

maker with another bookmaker [which is necessitated

by the influx] of an imbalance of bets and wagers on

a given sporting event and which bet has the effect

of distributing the said bets and wagers, thus mini-

mizing the risk of substantial loss.’’

™ Dne to a typographical error the bracketed portion of this in-

struction was not included in the proposed version tendered to the

court. Had the judge seriously considered giving a definition instruc-

tion, this omission would have been discovered and rendered by

checking the citation. However, the judge’s reason for refusing to

define the term was that the experts disagreed on the meaning of

“layoff bet.” See, Ullman v. Overnite Transportation Company, 508

F.2d 676, 677 (Sth Cir. 1975), rehearing denied, 511 F.2d 1402.

33

Without the jury fully understanding the concept ‘‘lay-

off bet,’’ this case obviously could not be fairly decided.

Both the government and the defendants keyed their ar-

guments to applying the facts to this most important book-

making practice.

In a very real sense, the issue concerning the term was

created by the government’s expert himself. The true is-

sue in the case was the function, if any, that the bets

placed by Greenspan and Gordon” for Blitzstein werved

for Blitzstein’s bookmaking business. If these bets re-

lated to the business and were made to balance his book-

making business, then these bets may be said to have been

made ‘‘in the course of the business’’ and Gordon and

Greenspan could be said to have been agents of the busi-

ness. Courts—and bookmakers themselves—have termed

bets which serve a balancing function as ‘‘lay off bets.’’

This term has always been defined in terms of its function

and it is the function, not the term, that has made lay off

bets important in linking separate bookmaking businesses

together for the purposes of Section 1955.

The government expert used the same shorthand term

to define something completely different—any bet made

by a bookmaker regardless of its function (Tr. 518-519).

But, the prosecutors continued to employ the term in its

usual manner—as evidence of a combined operation. Thus,

whereas the shorthand term has been accepted to define

specific relationships which carried certain implications,

the government has attempted to create the same implica-

tions merely by employing the term even though the rela-

tionships encompassed within the term have been com-

pletely altered.

12 Greenspan and Gordon were customers who placed bets for

Blitzstein.

34

It was only because the government’s expert created a

new meaning for the term ‘‘lay off bet’’ that the battle was

fought over the definition. Perhaps the defense was un-

wise to take that approach. Perhaps the defense should

have accepted the expert’s new definition and argued that

if all bets between bookmakers are layoff bets, then not all

lay off bets are bets made in the course of the bettor’s

bookmaking business. However, the defense attorneys

were experienced in the application of Section 1955 and

the defendants themselves understood the bookmaking

business. All knew what the term ‘‘lay off bet’? meant and

all had the same reaction to the expert’s testimony—‘‘ He

is wrong! That is not what a lay off het is!’”*

Because the government used the term, as newly de-

fined, to raise the same implications that the term raised

based on its accepted definition (and, again, it was only

the definition that raised the implications, not the term

itself), the defendants were entitled to an instruction de-

fining the technical term as the function that raises the

implications.**

8 Every Court of Appeals that has defined the term would have

the same reaction as the defendants. See, United States v. McHale,

infra; United States v. Schaefer, supra; United States v. Thomas,

infra; United States v. Box, infra; United States v. Guzak, infra;

United States v. Sacco, 491 F.2d 995, 998, n.1 (9th Cir. 1974).

* Compare, United States v. Maude, supra, in which both sides

asked the trial judge to instruct the jury on the definition of the word

“postmark”. His refusal to do so was upheld on appeal because

“postmark” had a “widely accepted and familiar meaning” and the

proposed instruction “would have added nothing to the jury’s store

of knowledge.” 481 F.2d at 1076. Surely this cannot be said of a

term which required expert testimony for definition and analysis.

Compare, Bohn v. United States, 260 F.2d 773, 779 (8th Cir. 1958),

cert. denied, 358 U.S. 931 and United States v. Crockett, 506 F.2d

759, 762 (5th Cir. 1975).

35

To help clarify the same matter for the jury, defendants

proposed Shapiro instruction number six:

‘*A bet placed by one bookmaker with another book-

maker is not necessarily a wager made in the course

of the bettor-bookmaker’s business. A ‘layoff’ bet

made by one bookmaker with another may be found

to have been a bet made in the course of the betting

hookmaker’s business. A personal bet made by a

bookmaker, [sic] need not be found to have been made

in the course of the betting bookmaker’s business.’’

The trial judge refused to give this instruction, but did

not explain his reasons. Obviously, the refusal could not

have been based on irrelevancy—this instruction defines

the main issue of the case. The language is certainly clear

in its meaning. For the reasons stated above, this instruc-

tion, coupled with the definitional instruction, would have

supplied the jury with the needed legal foundation upon

which to consider the facts.

In addition ‘to failing to define the technical term, the

trial judge refused to define an essential element of the

offense. Title 18, United States Code, Section 1955 (b) (1)-

(ii), requires that five or more persons must ‘‘conduct,

finance, manage, supervise, direct, or own all or part of

such [gambling] business.’’ The customers, who the gov-

ernment contended were agents of the business as well,

could only be so considered based on the verb, ‘‘conduct.”’

The defendants requested that the court instruct the jury

on the definition of the element ‘‘conduct’’—especially in

regard to those persons included and excluded from the

term—as it has been construed by the courts. The defen-

dants proposed the following instruction to this end.

‘‘The term ‘conducts’ does not include the player in

an illegal game of chance, nor the person who partic-

ipates in an illegal gambling activity by placing a bet.”’

36

This proposal was based on United States v. Riehl, 460 F.2d

454, 459 (3rd Cir. 1972), and is a reflection of intent when

the statute was enacted. See, 2 United States Code Cong.

& Adm. News (1970), at p. 4029.

The government itself proposed an instruction to define

the element. See, G. Inst. 344, in Appendix D.

Thus, the jury was not specifically instructed that bet-

tors are not to be included in the determination of the

essential ‘‘five or more’’ participants.

The instructions actually given to the jury (Appendix

C) were not improper. However, they did not adequately

inform the jurors of the issues they were to decide. The

resultant verdicts were an absolutely bewildering com-

bination which even the Court of Appeals in its affirmance

termed, ‘‘inconsistent.’’ Frankly, based on the undisputed

facts of this case, the verdicts are impossible to explain.

In order to affirm the instant conviction, the Court of

Appeals scrutinized and found something wrong with

every instruction proposed by the deefndant. (Appendix C)

We seriously doubt if any single specific instruction in any

case could pass such close muster. No proposed instruc-

tion, standing alone, will be a perfect statement of the law.

The law is too complex, and too full of exceptions and

aberrations, for any one instruction to be fully accurate.

Each proposed instruction was needed because of the

complexity of the case and the closeness of the issues.”

The failure to instruct on particular areas of the law left

° Indeed, in reaching its conclusion regarding the “five or more

persons” issue in the instant case, the Court of Appeals felt the

necessity of including the two defendants about whom the jury was

unable to reach verdicts. Although this may not be legally improper,

it certainly highlights the closeness of the case.

37

the jury with a void as to what factual issues it was to

decide. Many of the proposed instructions related to

technical terms and concepts, outside the ordinary knowl-

edge of the average jury and which required expert testi-

mony for definition. Other rejected instructions defined

essential elements of the offense. The paucity of instruc-

tions resulted in a nonsensical combination of verdicts

which bore no relationship to the facts of the case. All

this, the Court of Appeals chose to ignore.

The ultimate responsibility for instructing the jury rests

with the trial judge. If neither the defense nor the prose-

cution submit proposed instructions, a charge to the jury

would still have to be given. If both the defense and the

prosecution submit incorrect instructions on a topic which

requires instruction, the court still must instruct.

Whoever wrote the instant order chose to overlook the

principle of law set forth so clearly in Williamson v. United

States, 332 F.2d 123, 132 (5th Cir. 1964).

‘In the final analysis, it is not the parties who deter-

mine the charge the judge gives to the jury. The

obligation rests squarely on the shoulders of the trial

judge.’’

The Court of Appeals uses as a justification for no in-

struction defining a lay off bet, ‘‘the peculiar circumstances

of this case.’’ Yet no mention is made that these peculiar

circumstances were originated by the government’s expert,

who tailored the term lay off bet to suit the prosecutor’s

needs.

In United States v. Schilleci, 545 F.2d 519, 523-524 (5th

Cir. 1977), defendant’s convictions were reversed because

of the insufficiency of the charge to the jury. Throughout

the trial in Schilleci, the defendant had based his defense

on lack of specific intent. The instruction given by the

trial court on that subject failed to properly and com-

38

pletely define the factors the jury was to consider in reach-

ing its conclusion regarding specific intent.

In the instant case, though requested by the defendant,

the trial judge failed to instruct the jury on the factors

it was to consider in reaching a decision on the essential

element ‘‘conduct.’’ The defendant based his case on the

failure of the government to prove that five or more per-

sons conducted one bookmaking business. That the jury

was not instructed on that element is error of the same

type as that causing reversal in Schilleci.

This court’s conclusion that there was no error because

the defendant’s proposed instructions were not perfect

ignores the basic issue of whether the instructions actually

given were sufficient. What this court’s order does is to

completely insulate the trial judge from the instruction

formulation process. According to the order, if perfect

instructions on an essential clement are not proposed, no

instruction on that essential element need be given. This

radical departure from established law is worthy of ulti-

mate review.

CONCLUSION

Wuenrerore for the foregoing reasons, this Court should

issue a writ of certiorari to the United States Court of

Appeals for the Seventh Circuit to review the instant judg-

ment.

Respectfully submitted,

GrraLp M. WERKSMAN,

Dove as K. Morrison,

OscarR GoopMAN,

Attorneys for Petitioner

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued January 12, 1977)

February 4, 1977

Before

Hon. Robert A. Sprecher, Circuit Judge

Hon. Philip W. Tone, Circuit Judge

Hon. William G. East, Senior District Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 76-1772 vs.

HERBERT BLITZSTEIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 74 CR 744

Alfred Y. Kirkland, Judge.

ORDER

Defendant Herbert Blitzstein was convicted by a jury of

conducting an illegal gambling business in violation of 18

* The Honorable William G. East, Senior District Judge of the

United States District Court for the District of Oregon, is sitting

by designation.

App. 2

U.S.C. § 1955. On appeal, he argues that the evidence

was insufficient to meet the jurisdictional requirement that

five or more persons be involved in the operation of that

business and that the jury was not properly instructed as

to that element of the offense. We affirm.

On appeal, defendant concedes that he and his co-defen-

dants, Goldman and Shapiro, were conducting an illegal

bookmaking operation that took primarily football bets.

He argues, however, that the evidence was insufficient to

show that there were two other persons ‘‘conducting’’ that

business. Viewing the evidence, as we must, in the light

most favorable to the government, Glasser v. United States,

315 U.S. 60 (1942), we cannot agree. There was sufficient

evidence that at least two other persons, James Rittenberg

and Irving Gordon, participated in the conduct of that

business.

Rittenberg, a nightclub owner, testified at trial that

he regularly acted as an intermediary on behalf of a few

friends and customers in placing bets with Blitzstein’s op-

eration. During football season, these bets would ordi-

narily total $8,000 or $10,000 per week. In arranging the

bets, Rittenberg would use a point spread provided him

by Shapiro; he would then relay the bets to Shapiro, using

numbers instead of names in order to keep his customers’

identities secret. Rittenberg testified that all the bets he

received were placed through Shapiro, although he acknow]l-

edged that he might have gone to another bookmaker once

or twice.

In his brief, defendant argues that Rittenberg was not

the type of person the statute was intended to cover. Yet

this court has stated that

‘«*. . . Congress’ intent was to include all those who

participate in the operation of a gambling business,

regardless [of] how minor their roles and whether or

ee eee ee

_App. 3

not they [are] labelled agents, runners, independent

contractors or the like, and to exclude only customers

of the business.’ ”’ ;

United States v. McHale, 495 F.2d 15, 18 (7th Cir. 1974),

quoting from United States v. Becker, 461 F.2d 230, 232

(2d Cir. 1972), vacated and remanded on other grounds,

417 U.S. 903 (1974). The evidence was sufficient to show

that Rittenberg was ‘‘more than [an] individual player or

bettor and consciously aided in the conduct of the . . . book-

making operation.’’ United States v. Joseph, 519 F.2d

1068, 1072 (5th Cir. 1975), cert. denied, 424 U.S. 909 (1976).

Therefore, under the definition this court has adopted, he

could be counted as one of the participants in the illegal

operation.

Gordon, who also testified at trial, was a businessman

who placed bets both with Blitzstein and for him. Gordon

testified that during the football season he would place bets

for Blitzstein with other bookmakers on ten to fifteen

games a week, betting $300 to $1,500 per game. He re-

ceived his instructions on what bets to place from Goldman

and Shapiro, as well as from Blitzstein, to whom he talked

five to ten times a week. Gordon also testified that, in ad-

dition to placing bets for Blitzstein with other bookmakers,

he would receive bets to be transmitted to Blitzstein once or

twice a week when customers were unable to reach Blitz-

stein by phone.

Defendant argues that Gordon was simply a customer

who did him the favor of helping him place personal bets.

He arrives at this conclusion by comparing himself with the

typical bookmaker. Defendant contends that a bookmak-

er is, by definition, not a gambler, but rather a person

who seeks to minimize his risk by equalizing bets on each

side of a contest. When a bookmaker receives too many

bets on one side, he tries to balance his ledger by ‘‘laying

off,’’ i.e., shifting some of those bets to another bookmaker.

App. 4

Therefore, defendant argues, any wager by a bookmaker

that is not intended to achieve a balance cannot be called a

lay-off, cannot have been made in the course of the book-

maker’s business, and can only be characterized as a per-

sonal bet.

After thus setting forth the operating principles of an

ordinary bookmaking business, defendant goes on to

describe his own method of doing business. Instead of try-

ing to balance his incoming bets, Blitzstein always tried

to take a ‘‘position’’ favoring one side or the other. Be-

cause he often had ‘‘inside’’ information and because he

considered himself a sharp player, Blitzstein was willing

to disregard the sure profit a bookmaker derives from the

10% ‘‘vigorish’’ losing bettors pay and greatly increase

his risk of loss. The evidence showed that in trying to at-

tain a favorable position, the defendant sometimes manipu-

lated his betting line to encourage his customers to bet

on the losing side; more commonly, however, he would

simply place bets with other bookmakers, often through

agents like Gordon.

At trial, the government’s expert witness characterized

Blitzstein’s bets as ‘‘lay-offs’’ made in the course of his

bookmaking business. Defendant argues, as his expert tes-

tified at trial, that this characterization was wholly at odds

with the realities of the bookmaking business, as set forth

above. Because they were not placed to achieve an even

balance, defendant contends that Blitzstein’s bets were

strictly personal and, in fact, were made in spite of his

bookmaking business.

We find defendant’s argument unpersuasive. First, even

assuming that Blitzstein’s bets were not business related,

Gordon’s contacts with the bookmaking operation were

more than those of a mere customer. Like Rittenberg, he

acted as an intermediary, relaying bets on a regular basis

ee eee

= ee

eee =

App. 5

for gamblers who were unable to contact Blitzstein directly.

Second, we cannot agree with defendant’s restrictive defini-

tion of a ‘‘lay-off’’ bet. While that definition may be

technically correct as a matter of general bookmaking par!-

ance, it is not a complete definition of the term as it is used

in the case law, i.e., as a short-hand expression for a bet

made in the course of a bookmaker’s business. Cf. United

States v. Turzitti, No. 76-1434 (7th Cir., Jan. 3, 1977). In

the case at bar, the evidence presented was sufficient to al-

low the jury to conclude that the large and frequent bets

Blitzstein placed through Gordon and others were not per-

sonal bets. The evidence showed that these bets were not

segregated in any way from Blitzstein’s regular bet-taking

operation: they were placed over the same office phone,

sometimes by Goldman or Shapiro, no separate accounts

were kept, and Goldman often handled their weekly settle-

ment and collection. It also showed that these bets were a

function of the office figures: that is, when the incoming

bets put Blitzstein in what he considered to be an un- |

favorable position, he would attempt to remedy the situa-

tion by placing bets with other bookmakers. At times

Blitzstein weuld also attempt to accomplish the same result

by adjusting his betting line. We see no basis for dis-

tinguishing between the latter procedure, which was clearly

employed in the course of the bookmaking business, and

the former, as both of them were directed toward the same

objective of increasing that business’ profit-making

potential.

Defendant’s second argument is that the trial court

erred in refusing to give a number of requested instruc-

tions. Defendant contends that the cumulative effect of

these refusals was to leave the jury without any guidance

on the proper application of § 1955. This lack of guidance,

he says, was responsitie for producing a ‘‘bewildering

combination of verdicts,’’ with Blitzstein being convicted,

~~ = Sasa 4

App. 6

the jury unable to agree as to Goldman and Shapiro, and

Malmenato (allegedly an agent like Gordon) being ac-

quitted.

We find that the trial court’s instructions did adequate-

ly explain the elements of the offense charged. In reach-

ing this conclusion, we have not considered the apparently

inconsistent verdicts returned by the jury, for, as Judge

Hastings said in United States v. Kotakes, 440 F.2d 342,

345 (7th Cir.), cert. denied, 403 U.S. 919 (1971), such an

exercise would be ‘‘pure speculation.’’

Defendant argues that the court should have instructed

the jury to accept its definition of a lay-off bet, set forth

above. (Shapiro’s proposed instruction #9.) As we have

already pointed out, however, this definition was not com-

plete. Moreover, under the peculiar circumstances of this

case, any further elaboration on that term would have

confused, rather than clarified, the central issue of wheth-

er the bets made by Blitzstein were personal or were bets

made in the course of his bookmaking business. In in-

structing the jury on the defendants’ various theories of

the case, the court formulated the issue in precisely these

terms and thus properly left it to the jury to determine

whether the bets were, as defendant contended, ‘‘unre-

lated to the bookmaking operation.’’ (Court’s instruc-

tions, defendant’s appendix at 10.)

We find that the court also acted within its discretion

in refusing a number of other requested instructions.

Shapiro’s proposed instruction #6, which attempts in a

somewhat confusing manner to distinguish between per-

sonal bets and bets made in the course of business, was

adequately covered in the court’s summary of the various

theories of defense. Shapiro’s proposed instruction +7,

which states that placing a bet for someone else does "%

a

App. 7

make a person a participant for purposes of the five-man

requirement, is an incorrect statement of law. See United

States v. McHale, supra, 495 F.2d at 18. Shapiro’s pro-

posed instruction #3, which states that a bettor is not to

be counted toward the five-man requirement, was ade-

quately covered in the court’s instructions regarding de-

fendant Malmenato’s theory of defense. Shapiro’s pro-

posed instructions 5 and 8 and Malmenato’s proposed in-

struction #3 all state, in effect, that, in order to be in-

cluded as a participant in a gambling operation, a per-

son’s contacts with that operation must be more than

casual, isolated instances. While the court did not instruct

the jury directly on this point, he did say that whether a

‘*business’’ existed depended on, among other things,

whether ‘‘a continuing course of conduct rather than a

single isolated transaction’’ was involved. (Defendant’s

appendix at 8.) We think this instruction was sufficient.

But, even if it were not, the failure to instruct further

would not be prejudicial error because it was undisputed

that all but two of the ten men who were possible partici-

pants had very frequent non-betting contacts with the

Blitzstein operation. Finally, Shapiro’s proposed instruc-

tion +4, which states that a large-scale bettor must be

treated the same as a small bettor, was properly refused

in this case, because the size of Blitzstein’s allegedly per-

sonal bets was one factor that the jury was entitled to

consider in determining whether they were actually bets

made in the course of his bookmaking business.

For the foregoing reasons, the conviction is affirmed.

App. 8

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

February 24, 1977.

Before

Hon. Robert A. Sprecher, Circuit Judge

Hon. Philip W. Tone, Circuit Judge

Hon. William G. East, Senior District Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 76-1772 vs.

HERBERT BLITZSTEIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 74 CR 744

Alfred Y. Kirkland, Judge.

ORDER

On consideration of the petition for rehearing filed in

the above-entitled cause, all of the members of the panel

having voted to deny a rehearing,

It Is Ordered that the petition for rehearing in the

above-entitled cause be, and the same is hereby Denied.

*The Honorable William G. East, Senior District Judge of the

United States District Court for the District of Oregon, is sitting

by designation.

ee ass ON a

os

were dee eee tear Ak ee 8 i eee AP

App. 9

APPENDIX C

The Instructions Given by the Court

(Whereupon, the following further proceedings were

had in the presence and hearing of the jury; to-wit:)

The Court: This jury has been exceptionally attentive

throughout this trial and before I give you the instructions

to guide you in the jury room, I will make some general

comments that might be helpful to you. The written in-

structions—printed instructions—will not go to the jury

room; likewise the record in this case will not go to the

jury room. I know from experience that many times the

foreman of the jury will knock on the door after some de- .

liberation and say, ‘‘Could you tell us again the testimony

of such-and-such a witness,’’ or, ‘‘Could we read the in-

dictment,’’ or ‘‘Could we see this instruction or that in-

struction.’’ None of that will be available to you. We ask

you to—and the purpose of having a jury is for you to

draw your twelve collective memories as to what the evi-

dence was, as to what a particular witness testified to, as

to what was demonstrated by this, that or the other wit-

ness. Likewise the instructions should be regarded as a

whole, and you will again be asked when you are in the

jury room to rely upon your respective and collective

memories as to what the instructions were. That is incen-

tive enough to listen carefully. Watching this jury, you

have listened carefully and do not need to be told this;

but I will remind you again that you will not get to read

a record of the case while you are deliberating, you will

not get to see the instructions in print or to have them

read to you. So do listen carefully; and, I think, you will

find that when you are in the jury room deliberating, your

App. 10

collective memories will recall the significant information,

the significant instructions on which you must draw and

which you must use to decide this case.

In the trial of this case the Judge and the jury have

separate functions. The Judge is in charge of the trial

and must preside in such manner that proper and relevant

evidence will be presented, and should instruct the jury

on the law applicable to the case.

The jury should follow the law as it is given by the

Judge in these instructions. All of the instructions should

be considered together as a connected series and regarded

as the law applicable to the case. The jury has no right

to disregard, or to give special attention to any one of the

instructions, or to question the wisdom of any rule of law.

The function of the jury is to determine the facts. This

should be done without prejudice, fear or favor, and solely

from a fair consideration of the evidence. The evidence

should be considered and viewed by the jurors in the light

of their own observations and experiences in the affairs

of life. If, during the trial, the Court has intimated an

opinion as to theAacts, the jury is not bound by that opin-

ion. The jury Alone is the sole and exclusive judge of the

ining the facts, the jury is reminded that be-

member was accepted and sworn to act as a

juror, he was asked questions regarding his competency,

qualifications, fairness and freedom from prejudice or

sympathy. On the faith of those answers, the jury was

accepted by the parties. Therefore, those answers are as

binding on each of the jurors now as they were then, and

to remain so until the jury is discharged from considera-

tion of this case.

A defendant in a criminal case is presumed by law to

be innocent. That presumption remains with him through-

ee ee ee

App. 11

out the trial unless and until he is proven guilty of the

crime charged by credible evidence beyond a reasonable

doubt.

The burden of proving defendant guilty beyond a rea-

sonable doubt rests upon the Government. This burden

never shifts throughout the trial. The law does not require

a defendant to prove his innocence or to produce any evi-

dence. He may rely upon evidence brought out on cross

examination of witnesses for the Government. If the Gov-

ernment fails to prove defendant guilty beyond a reason-

able doubt the jury must acquit him.

The indictment is not evidence of defendant’s guilt. It

is merely the formal manner by which the Government

accuses a person of a crime in order to bring him to trial.

The jury must not be prejudiced against a defendant be-

cause an indictment has been returned against him. Each

defendant has pleaded not guilty to the indictment.

The jury must consider only the evidence properly ad-

mitted in the case. Evidence includes the sworn testimony

of witnesses, exhibits admitted into the record, facts stipu-

lated by counsel, and facts judicially noted by the Court.

A stipulation in an agreed statement of facts between

the attorneys for the prosecution and the defendant, and

the jury should regard such stipulated facts as undisputed

evidence.

Statements and arguments of counsel are not evidence.

They are only intended to assist the jury in understanding

the evidence and the contentions of the parties. During

the course of the trial it often becomes the duty of counsel

to make objections, and for the Court to rule on them in

accordance with the law. The jury should not consider or

be influenced by the fact that such objections have been

made.

App. 12

The law makes no distinction between the weight to be

given to either direct or circumstantial evidence; it re-

quires only that the jury after weighing all the evidence,

must be convinced of the guilt of the defendant beyond a

reasonable doubt before he can be convicted.

Testimony and exhibits to which the Court has sus-

tained an objection, or which the Court has ordered strick-

en from the record, do not constitute evidence, and must

not be considered by the jury.

It is the province of the jury to determine the credibil-

ity of each witness and the weight to be given to his testi-

mony. In weighing the testimony of each witness, the jury

should consider his relationship to the Government, or to

the defendant; the witnesses interests, if any, in the out-

come of the case, his manner of testifying, his candor, fair-

ness and intelligence, and the extent to which he has been

corroborated or contradicted, if at all, by other credible

evidence.

If the jury believe that a witness has willfully sworn

falsely to a material fact in the case, the jury may disre-

gard his testimony in whole or in part, except insofar as

it may have been corroborated by other credible evidence.

The weight of the evidence is not necessarily determined

by the number of witnesses testifying on either side. The

jury should consider all the facts and circumstances in

evidence to determine which of the witnesses are worthy

of greater credence. The jury may find that the testimony

of a smaller number of witnesses on one side is more

credible than the testimony of a greater number of wit-

nesses on the other side.

The testimony of a witness may be discredited or im-

peached by showing that he previously made statements

which are inconsistent with his present testimony. The

Jee eam oe

App. 13

earlier contradictory statements are admissible only to

impeach the credibility of the witness and not to establish

the truth of those statements. It is the province of the

jury to determine the credibility, if any, to be given the

testimony of a witness who has been impeached.

During this trial the jury has heard the testimony of

alleged expert witnesses. Such evidence is admissible

where the subject matter involved requires special study,

training or skill not within the realm of the ordinary ex-

perience of mankind, and the witness is qualified to give

an expert opinion.

However, the fact that an expert opinion is given does

not mean that it is binding upon the jury, or that the jury

is obligated to accept the expert’s opinion as to what the

facts are. It is the province of the jury to determine the

credibility and weight that should be given to the expert

opinion in the light of all the evidence.

To constitute a crime there must be the joint operation

of two essential elements, an act forbidden by the law and

an intent to do the act.

Before a defendant may be found guilty of a crime, the

prosecution must establish beyond a reasonable doubt that

under the statute defined in these instructions defendant

was forbidden to do the act charged in the indictment, and

that he intentionally committed the act.

The indictment charges that from on or about Septem-

ber 1, 1973, and continuing to and including on or about

January 9, 1974, in the Northern District of Illinois, East-

ern Division, and elsewhere, Herbert Blitzstein, Sherman

Goldman, Michael Malmenato and Morton Shapiro, defen-

dants herein, and Norman Mizelle, Irving Gordon, Edwin

Greenspan and James Rittenberg, named herein but not

as defendants, and others whose names are unknown to

App. 14

the grand jury, did knowingly, willfully and unlawfully,

conduct, finance, manage, supervise, direct and own all or

part of an illegal gambling business, such business having

been in substantially continuous operation for a period in

excess of thirty days and having a gross revenue of

$2,000.00 or more on one or more single days, in involving

five or more persons in its conduct, financing, manage-

ment, supervision, direction and ownership, and being in

violation of the laws of the State of Illinois, that is: Illi-

nois Revised Statutes, Chapter 38, Sections 28-1(a)(2)

and (10); and 28-1.1(b) and (d).

In violation of Title 18, United States Code, Section

1955.

To convict a defendant of the crime charged in this in-

dictment, the Government must prove beyond a reasonable

doubt :

1. That within a time set out in the indictment, in the

Northern District of Illinois, the defendant knowingly,

willfully and unlawfully conducted, financed, managed,

supervised, directed or owned all or part of an illegal

gambling business;

2. That the illegal gambling business was in violation

of the law of the State of Illinois;

3. That the illegal gambling business involved five or

more persons in its conduct, financing, management, su-

pervision, direction or ownership; and

4. That the illegal gambling business had been in sub-

stantially continuous operation for a period in excess of

thirty days or had a gross revenue of $2,000.00 or more on

one or more single days.

Defendants have been charged with violating Title 18,

United States Code, Section 1955. The Statute provides

in pertinent part:

he ae Pete eee

App. 15

(a) ‘‘Whoever conducts, finances, manages, supervises,

directs or owns all or part of an illegal gambling

business shall’’ be guilty of an offense.

The statute continues:

(b) As used in this section

(1) ‘‘illegal gambling business’’ means a gambling

business which—

(i) is a violation of the law of (the) State...

in which it is conducted;

(ii) involves five or more persons who con-

duct, fingnce, manage, supervise, direct or

own all or part of such (a) business and

(iii) has been or remains in substantially con-

tinuous operation for a period in excess

of thirty days or has a gross revenue of

$2,000.00 in any single day.

(2) ‘‘gambling’’ includes bookmaking . . .

The term ‘‘business’’ is to be given its normal, custom-

ary meaning and is to be found from the circumstances of

the case. For example, you may consider among other

things the defendants’ intent, the volume of the business,

the scope and the size of the gambling activity, and wheth-

er it is conducted for a profit. As a general rule, a busi-

ness enterprise involves a continuing course of conduct

rather than a single isolated transaction.

The gambling business alleged to have been carried on

hy the defendants is a bookmaking operation involving 5

or more persons, having been in substantially continuous

operation for a period in excess of thirty days or having

a gross revenue in excess of $2,000.00 in any single day

from on or about September 1, 1973 to on or about Janu-

App. 16

ary 9, 1974. If you, the jury, find beyond a reasonable

doubt that the defendants did conduct, finance, manage,

supervise, direct or own such a gambling business, then I

instruct you, as a matter of law, that such activity violates

the laws of the State of Illinois as provided in Sections

28-1(a), (2) and (10); and Section 28-1.1(b) and (d), of

Chapter 38, Illinois Revised Statutes.

The word ‘‘knowingly’’ as used in the crime charged

means that the act was done voluntarily and purposely,

and not because of mistake or accident. Knowledge may

be proven by defendant’s conduct, and by all the facts and

circumstances surrounding the case.

The word ‘‘willfully’’ as used in the crime charged

means that the act was committed by defendant volun-

tarily, with knowledge that it was prohibited by law, and

with the purpose of violating the law, and not by mistake,

accident or in good faith.

Where two or more persons are charged with the com-

mission of a crime, the jury must give separate considera-

tion to each individual defendant. Each defendant is en-

titled to have his case determined from his own conduct

and from the evidence which may be applicable to him.

It is the defendant Blitzstein’s theory of defense that

his relationships with other persons were not such that

he was associated with four or more others in the opera-

tion, conduct, management, financing, ownership, or direc-

tion of a single bookmaking business as prohibited by the

statute.

It is the defendant Blitzstein’s further theory of defense

that he was engaged in two separate and distinct ventures,

one which, if engaged in with five or more persons in the

operation, conduct, management, financing, ownership, or

direction, would be in violation of the law, to wit: bookmak-

1

a

App. 17

ing; and the other distinct venture, which would not be in

violation of the federal statute, to wit: betting, regardless

of the number of people with whom Blitzstein may have

associated.

It is the defendant Blitzstein’s further theory of defense

that the bets made by him were not made in furtherance

of the bookmaking operation, but rather were made in

furtherance of his betting activity.

It is the defendant Goldman’s theory of defense that he

was not a member of a gambling business which was con-

ducted, financed, managed, supervised, directed or owned

by five or more persons.

It is the defendant Goldman’s further theory of defense

that the wagers made by the defendant Blitzstein were

personal bets made in Blitzstein’s capacity as a bettor and

that these wagers were not connected with Blitzstein’s

bookmaking activities.

It is the defendant, Malmenato’s theory of defense that

his relationship with other persons wes not such that he

was associated with four or more others in the operation,

conduct, management, financing, ownership, or direction of

a gambling business as defined in the statute.

It is the defendant Malmenato’s further theory of de-

fense that he was a bettor only and that he placed bets

with other bookmakers which he and the co-defendant,

Blitzstein, split without any connection to the bookmaking

business of Blitzstein.

If you find either of these propositions to be true, you

should find the defendant, Malmenato, not guilty.

It is the defendant Shapiro’s theory of defense that his

relationship with the other persons named in the indict-

ment was not such that he was associated with four others

App. 18

in the operation, conduct, management, financing, owner-

ship, or direction of a single gambling business as defined

in the statute.

It is the defendant Shapiro’s further theory of defense

that the bets made by Shapiro and the co-defendant Blitz-

stein were not made in furtherance of the bookmaking

operation in which it is alleged that Shapiro was a partner

with Blitzstein.

It is the defendant Shapiro’s further theory of de-

fense that there were two separate gambling operations

shown by the evidence—one in which there was bookmaking

(accepting bets) and a separate one in which the defendant

Blitzstein was placing bets and that the bets placed by

Blitzstein were unrelated to the bookmaking operation.

Upon retiring to the jury room you will select one of

your number as foreman who will preside over your de-

liberations. During the course of your deliberations you

should assume the attitude of judges of the facts rather

than that of partisans or advocates.

In determining the guilt or innocence of the defendants

the jury should not give any consideration to the matter

of punishment, for this question is exclusively the respon-

sibility of the judge.

The verdict must represent the considered judgment of

each juror. In order to return a verdict, it is necessary

that each juror agree thereto. Your verdict must be unani-

mous.

It is your duty, as jurors, to consult with one another

and to deliberate with a view to reaching an agreement,

if you can do so without violence to individual judgment.

Each of you must decide the case for yourself, but do so

ee ae ee ey ee

App. 19

only after an impartial consideration of the evidence with

your fellow jurors. In the course of your deliberations, do

not hesitate to reexamine your own views and change your

opinion if convinced it is erroneous. But do not surrender

your honest conviction as to the weight or effect of evi-

dence solely because of the opinion of your fellow jurors,

or for the mere purpose of returning a verdict.

You are not partisans. You are judges—judges of the

facts. Your sole interest is to ascertain the truth from

the evidence in the case.

You wil] take with you to the jury room eight forms of

verdict. Each of the eight forms of verdict have a space

for the twelve signatures. The line above which the foreman

should sign and eleven other lines above which the other

eleven jurors should sign. You should return four ver-

dicts from the eight forms given to you. The forms read

as follows: ‘‘We the jury find the defendant Herbert Blitz-

stein guilty as.,charged in the indictment. We the jury

find the defendant Herbert Blitzstein not guilty as charged

in the indictment.’’ Return one or the other of those

verdicts.

‘‘We the jury find the defendant Sherman Goldman

guilty as charged in the indictment. We the jury find the

defendant Sherman Goldman not guilty as charged in the

indictment.’’ Return one or the other of those verdicts.

‘‘We the jury find the defendant Michael Malmenato

guilty as charged in the indictment. We the jury find the

defendant Michael Malmenato not guilty as charged in the

indictment.’’ Return one or the other of those verdicts.

‘‘We the jury find the defendant Morton Shapiro guilty

as charged in the indictment. We the jury find the defen-

dant Morton Shapiro not guilty as charged in the indict-

ment.” Return one or the other of those verdicts.

App. 20

Again, before verdicts are returned they should be

signed by all twelve jurors.

At this time I will excuse the alternate juror and assure

him and reassure him that his participation has been im-

portant to this trial and it saved what could have been a

necessity of trying this entire case over again if we had

lost more than two jurors along the way, as we lost one

because of illness. So the alternate juror may step down

at this time and his service is completed and we thank you

for your service.

The clerk will administer the oath to the marshal.

(Marshal sworn.)

a wk

eee ee ne eet eens

8 a le le tt Me ee

eee as

App. 21

APPENDIX D

Refused Instructions

GOVERNMENT INSTRUCTION NO. 34

The word ‘‘five or more persons who conduct, finance,

manage, supervise, direct or own all or part of an illegal

gambling business’’ include all of those individuals who

associate themselves with the business in any capacity

other than in the capacity of a mere customer or bettor.

These words include all those who participate in the

gambling business regardless of how minor their roles and

whether or not they act as runners, pick up men, office

workers, telephone operators, layoff bettors or any other

position.

United States v. Mullen, 516 ¥.2d 591 (7th Cir. 1975);

United States v. McHale, 495 F.2d 15, 18 (7th Cir.

1974);

United States v. Manson, 494 F.2d 804, 807 (7th Cir.

1974) ;

United States v. Hunter, 478 F.2d 1019, 1021-22 (7th

Cir. 1973), cert. den. 414 U.S. 857, reh. den. 414 US.

1087.

GOVERNMENT INSTRUCTION NO. 35

Each defendant is to be considered separately, but the

essence of the law that the government must prove be-

yond a reasonable doubt that the individual defendant that

you are considering was involved in the illegal gambling

business with four or more other persons, some of whom

may or may not have been named as defendants.

It is not necessary for the government to prove that

each defendant or participant in the illegal gambling busi-

App. 22

ness know or had reason to know of the identities of the

other defendants or participants in said business or that

five or more persons were involved in said business.

United States v. Pepe, 512 F.2d 1129, 1131 (5th Cir.

1975)

DEFENDANT SHAPIRO’S INSTRUCTION NO. 3

The term ‘‘conducts’’ does not include the player in an

illegal game of chance, nor the person who participates

in an illegal gambling activity by placing a bet.

United States v. Riehl, 460 F.2d 454, 459 (3rd Cir.

1972)

2 United States Code Cong. & Admin. News (1970), at

p. 4029

DEFENDANT SHAPIRO’S INSTRUCTION NO. 4

A person who regularly places large bets is not treated

any differently by the law than a casual and occasional

bettor.

United States v. Box, 530 F.2d 1258 (5th Cir. 1976)

DEFENDANT SHAPIRO’S INSTRUCTION NO. 5

The mere exchange of line information does not make

the persons who exchange such information joint opera-

tors, managers, directors, financers, or owners in the same

gambling operation.

United States v. Guzek, 527 F.2d ........ (Cir. 1976)

United States v. Box, 530 F.2d 1258 (5th Cir. 1976)

DEFENDANT SHAPIRO’S INSTRUCTION NO. 6

A bet placed by one bookmaker with another bookmaker

is not necessarily a wager made in the course of the bettor-

bookmaker’s business. A ‘‘lay-off’’ bet made by one book-

maker with another may be found to have been a bet made

in the course of the bettor’s bookmaking business. A per-

ee te De lee a re SA et OE

<a at oe

App. 23

sonal bet made by a bookmaker, need not be found to have

been made in the course of the betting bookmaker’s busi-

ness. '

United States v. Joel Glickman, et al., No. 75 CR 666

(N.D.Il. 1976), (given by Judge Decker)

DEFENDANT SHAPIRO’S INSTRUCTION NO. 7

The placing of a bet for someone else does not make a

person a participant in a gambling enterprise for purposes

of satisfying the ‘‘five or more persons’’ requirement of

the offense charged in this case.

United States v. Pepe, 512 F.2d 1129, 1131, N.7 (3rd

Cir. 1975)

DEFENDANT SHAPIRO’S INSTRUCTION NO. 8

Isolated and casual layoff bets and an occasional ex-

change of line information is not sufficient to establish that

one bookmaker is conducting or financing the business of a

second bookmaker.

United States v. Thomas, 508 F.2d 1200, 1206 (8th Cir.

1975), cert. denied, 95 S. Ct. 1677.

DEFENDANT SHAPIRO’S INSTRUCTION NO. 9

A “‘layoff’’ bet is a bet or wager placed by one book-

maker with another bookmaker of an imbalance of bets

and wagers on a given sporting event and which bet has

the effect of distributing the said bets and wagers, thus

minimizing the risk of substantial loss.

United States v. Schaefer, 510 F.2d 1307, 1311, N.5

(8th Cir. 1975), cert. denied, 95 S. Ct. 1975, 1980

DEFENDANT SHAPIRO’S INSTRUCTION NO. 10

You may not speculate or use generalized theories about

how bookmakers and bettors receive line information in

order to determine that such methods occurred in this case.

EE a a,

App. 24

Unless there is evidence to support the conclusion that

line information was transmitted by a specific person, you

may not conclude that such a person exists nor include

such a person for the purpose of determining whether or

not the ‘‘five or more persons’’ element has been satisfied

by the government beyond a reasonable doubt.

United States v. Pepe, 512 F.2d 1129, 1133, 1134 (3rd

Cir. 1975)

DEFENDANT MALMENATO INSTRUCTION NO. 3

If you find that a defendant acecpted lay off bets with-

out finding that he was an integral part of the bookmaking

business you must find him not guilty.

18 USC Section 1955

U.S. v. Box, 530 F.2d 1258 (1976).

DEFENDANT GOLDMAN’S INSTRUCTION NO. 2

The recipient of a lay off bet is not a part of an illegal

gambling operation on that basis alone.

United States v. Box, 530 F.2d 1258 (5th Cir. 1976),

GOVERNMENT INSTRUCTION NO. 34A

The words ‘‘five or more persons who conduct, finance,

manage, supervise, direct or own all or part of an illegal

gambling business’’ include all of those individuals who

associate themselves with the business in any capacity

other than in the capacity of placing personal bets.

United States v. Mullen, 516 F.2d 591 (7th Cir. 1975) ;

United States v. McHale, 495 F.2d 15, 18 (7th Cir.

1974) ;

United States v. Manson, 494 F.2d 804 (7th Cir. 1974) ;

United States v. Hunter, 478 F.2d 1019, 1021-22 (7th

Cir. 1973), cert. den. 414 U.S. 857, reh. den. 414 U.S.

1087.