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2d 311
I.
2
On January 29, 1974 appellant, Charles Iannece, pleaded guilty in the United
States District Court for the Eastern District of Pennsylvania to Count I of a
two-count indictment, which charged him with conspiring to conduct an illegal
gambling business in violation of 18 U.S.C. 371.1 At the time of the entry of
his plea, the imposition of a prison sentence was suspended and Iannece was
placed on probation for one year and fined $1,000. Among the terms of
probation set by the court was that Iannece "shall refrain from any unlawful
conduct."
3
Iannece, however, did not completely sever his gambling ties. On October 23,
1974 a search of the residence where Iannece's mother lived was conducted by
the Philadelphia police pursuant to a search warrant. Iannece, who was present,
was arrested at the conclusion of the search. During the search, the police
found gambling tally sheets on Iannece's person as well as rice paper containing
lists of horse bets and numbers concealed under his mother's mattress.
On January 23, 1975 the United States filed a petition to revoke Iannece's
federal probation. The petition charged Iannece had violated the conditions of
his probation by:
12
An evidentiary hearing was held by the district court on February 13, 1975. At
that hearing, in addition to receiving testimony from Officer Reid, wiretap and
expert evidence was also introduced to the following effect. In November, 1974
a wire interception of one Nancy Melilli's telephone was authorized, and tape
recorded conversations and transcripts of these conversations were placed in
evidence. During the period of surveillance commencing November 11, 1974,
some 50 telephone calls were made from the Melilli telephone to the address
where Iannece resided.2 F.B.I. agents identified the voices of Iannece and John
Melilli. They interpreted the tape conversations as conversations involving
betting, including the acceptance and transmission of wagers and the receipt of
numbers betting information.
13
Iannece produced no evidence but argued only that he had been acquitted of
state gambling charges by the Commonwealth. He also argued that if an
individual "is not prosecuted or if he is exonerated by the City Courts, then the
Court, during the probation really has no basis for saying that he did in fact
violate his probation."
14
At the conclusion of the hearing, the district court, after making numerous
findings of fact and conclusions of law, held that Iannece had violated the
terms of his probation by conducting an illegal gambling business, by accepting
and transmitting wagers, and by receiving betting information all in violation of
the Penal Laws of Pennsylvania. Thereafter on March 4, 1975, Iannece was
sentenced to four years imprisonment.3 This appeal followed.
II.
15
16
First, Iannece argues that the record is devoid of the necessary evidence to
support the district court's holding that he was conducting an illegal gambling
Alternatively he argues that ". . . the notion of collateral estoppel barred the
lower court from hearing the testimony of (Police) Officer Robert Reid"
(Appellant Br. p. 16) because Reid had testified against him in the State
prosecution in which Iannece had been acquitted. His argument in this regard
concludes with the contention that ". . . since the facts testified to and issues
raised in appellant's state gambling trial were resolved in his favor by an
acquittal, it was error for the lower court to consider the same evidence again at
the revocation hearing of February 13, 1975." (Appellant's Br. p. 20).
18
For the reasons which are specified hereafter, we find both of these arguments
to be without merit.
III.
19
20
Where
a previous judgment of acquittal was based upon a general verdict, as is
usually the case, this approach requires a court to "examine the record of a prior
proceeding, taking into account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have grounded its verdict upon an
issue other than that which the defendant seeks to foreclose from consideration."
21
22
23
The record here is virtually bare insofar as it reflects the essentials of the state
proceeding. It does not even identify the particular crime or crimes with which
Iannece was charged by the Commonwealth of Pennsylvania. While it does
reflect that Police Officer Reid had testified in the state criminal proceeding as
well as at the federal revocation hearing, it does not reveal the particulars or
content of Officer Reid's testimony in the state proceeding. Moreover, the
25
However, even had the district court not considered Reid's testimony, the
uncontradicted evidence independent of his testimony was overwhelming and
fully supported the district court's findings. Government agents had identified
Iannece's voice in discussions concerning bets and betting information. Other
FBI agents interpreted the tapes and transcripts which were in evidence, and
concluded that Iannece was involved in a gambling business grossing in excess
of ten thousand dollars each day. 6 As indicated, this evidence alone more than
sufficed to sustain the district court's findings.
26
In sum, we conclude that the district court was not collaterally estopped from
considering Reid's testimony, and that the findings of Iannece's gambling
conduct including his receipt and transmission of wagers, were amply
supported by the evidence, with or without consideration of the challenged
testimony.IV.
27
What we have indicated thus far in discussing the appellant's collateral estoppel
argument is relevant as well to Iannece's companion argument claiming that the
record is devoid of evidence to support his probation revocation. He argues that
for the district court to revoke his probation, it had to do so based on evidence
that he had committed an unlawful act, either federal or state. The district court
First, he contends that by employing in its findings the words "illegal gambling
business", the district court was specifically referring to a violation of 18
U.S.C. 1955 which uses and defines these same words. His argument
proceeds that inasmuch as the various elements of that statute were not proved
by the government, a violation of 1955 could not be established and charged
against him.7 In particular, Iannece points out that in order to come within the
ambit of 1955 the government, among other requirements, must prove that
five or more individuals participated in the violation of state law, and here, at
the most, the government has shown participation of but two individuals, John
Melilli and the appellant. Thus, he concludes, since evidence as to the essential
elements of 1955 was not introduced at the probation revocation hearing, it
was clearly erroneous8 for the district court to find that he had conducted an
"illegal gambling business."
29
The flaw in appellant's argument is that he has misread the district court's
findings and conclusions. Nowhere in the district court's remarks made at the
conclusion of the February 23, 1975 hearing is there any reference, direct or
indirect, to 18 U.S.C. 1955, its definitions or elements. To the contrary, the
district court's remarks are completely generic in content when describing
Iannece's conduct:
I30conclude that the calls referred to . . . show that the defendant was conducting an
illegal gambling business in Philadelphia, Pennsylvania during the term of his
probation . . . that he was accepting wagers from other individuals . . . that he was
transmitting wagers . . . that he was receiving betting information . . . (and that) . . .
this conduct on the part of Charles Iannece violated the penal laws of Pennsylvania. 9
31
32
There are three answers to this argument. First, the record at the revocation
hearing does not reveal that Iannece raised this argument before the district
court. Second, even had there been such an objection, in the context of
Pennsylvania law, we have held in United States v. Armocida, 515 F.2d 49, 51-
35
In United States v. Garza, 484 F.2d 88 (5th Cir. 1973) it was argued that an
element of the offense for which probation was revoked was not proved beyond
a reasonable doubt. The Fifth Circuit rejected this argument and wrote:
.36. . Revocation of probation does not require proof sufficient to sustain a criminal
conviction. All that is required is enough evidence, within a sound judicial
discretion, to satisfy the district judge that the conduct of the probationer has not met
the conditions of probation. . . .
37
484 F.2d at 89. The most recent pronouncement of this Court is found in
Skipworth v. United States, 508 F.2d 598, 602 (3d Cir. 1975), where we said:
38 revocation proceedings, the trial judge must reasonably satisfy himself that the
In
probationer has broken some law while on probation or has otherwise violated a
condition of his probation. . . .
39
Although the district court in its findings and conclusions did not identify any
specific Pennsylvania penal law which Iannece violated, its findings that
Iannece received and transmitted wagers and gambling information make it
abundantly clear that it considered the relevant Pennsylvania gambling
statutes,11 and was satisfied that Iannece had not refrained from unlawful
conduct during the term of his probation.
V.
40
Having concluded that the district court did not abuse its discretion and that its
findings and conclusions are amply supported by the evidence, we will affirm
the March 4, 1975 order of the district court which revoked appellant's
probation.
The court's order of March 4, 1975 further provided for parole eligibility after
one year and eligibility for a work release after six months, and a fine of $1,000
Although Reid testified in some detail at the revocation hearing, the only
reference to the testimony which he had previously given at the state
proceeding was as follows:
Q. Now the piece of paper that you found in his sock, you testified under oath
in this matter once before in the State Courts in Philadelphia; is that correct?
A. That is correct.
Q. And I believe you were asked by me whether or not that could be tally for
other activity other than gambling activity and your answer was "Yes"; isn't that
correct?
A. I believe you asked if this could be horse loan money or sports bets and
Q. Or other activities?
A. Right.
Q. And your answer was "Yes"; isn't that correct?
Q. And as a matter of fact, Mr. Iannece was arrested as a result of these
particular items that were confiscated; isn't that correct?
A. That is correct.
Q. And he was acquitted; isn't that correct?
A. That is correct.
6
18 C.P.S.A. 5701-5705
11