UNITED STATES OF AMERICA, Appellee v. CARL ANGELO DELUNA,
Appellant; UNITED STATES OF AMERICA, Appellee v. CARL JAMES CIVELLA, Appellant;
UNITED STATES OF AMERICA, Appellee v. CHARLES DAVID MORETINA, Appellant; UNITED
STATES OF AMERICA, Appellee v. CARL WESLEY THOMAS, Appellant; UNITED STATES OF
AMERICA, Appellee v. ANTHONY CHIAVOLA, SR., Appellant; UNITED STATES OF AMERICA,
Appellee v. CARL JAMES CIVELLA, Appellant
Nos. 83-2408, 83-2409, 83-2410, 83-2411, 83-2462, 84-1047
763 F.2d 897; 1985 U.S. App. LEXIS 30263; 18 Fed. R. Evid.
Serv. (Callaghan) 465
COUNSEL:
Edward D. Holmes, Justice Department, Kansas City, Missouri, for Appellee.
Ephraim Margolin, San Francisco, California, Melvyn L. Segal, Chicago,
Illinois, and Oscar B. Goodman, Las Vegas, Nevada, for Appellants.
JUDGES: McMillian, Circuit
Judge, Floyd R. Gibson, Senior Circuit Judge, and Arnold, Circuit Judge.
OPINIONBY: McMILLIAN
OPINION: [*903] McMILLIAN, Circuit Judge.
Carl Wesley
Thomas, Carl Angelo DeLuna, Carl James Civella, Charles David Moretina, and
Anthony Chiavola, Sr., appeal from a final judgment entered in the District
Court n1 for the Western District of Missouri upon a jury verdict finding them
guilty of knowingly transporting stolen money in interstate commerce, travelling
in and utilizing the facilities of interstate commerce with the intention of
establishing and managing an unlawful interest in a Nevada gaming establishment,
and conspiring with others to accomplish these ends in violation of
18
U.S.C. §§ 2, 371, 1952, 2314 (1982). For reversal appellants argue that the
district court erred in (1) refusing to grant their motions for
[**2] judgment of acquittal (Travel Act violations), (2)
upholding the validity of a search warrant issued by an allegedly partial
magistrate, (3) admitting co -conspirators written statements, (4) admitting
evidence in violation of appellants' confrontation rights, (5) permitting
government witness Agosto to testify in separate installments, (6) excluding
expert testimony, (7) admitting evidence of other crimes and bad acts, (8)
giving a Pinkerton instruction to the jury, (9) refusing to grant their motions
for dismissal of the conspiracy count on the grounds of prejudicial variance
between the indictment and the government's proof, (10) denying their motions
for severance, (11) refusing to dismiss on the grounds of statutory and
constitutional speedy trial violations, and (12) refusing to grant their motions
for acquittal because of insufficient evidence. Not all appellants join in each
allegation of error. For the reasons discussed below, we affirm the judgments of
the district court.
- - - - - - - - - - - - - - - - - -Footnotes-
- - - - - - - - - - - - - - - - -
n1 The Honorable Joseph E. Stevens,
Jr., United States District Judge for the Eastern and Western Districts of
Missouri.
- - - - - - - - - - - - - - - - -End Footnotes- - - - -
- - - - - - - - - - - -
[**3] On November
5, 1981, eleven defendants were charged in a seventeen-count indictment with
conspiracy and substantive offenses in violation of
18
U.S.C. §§ 2, 371, 1952, 2314. Charges against six of the eleven defendants
were dismissed or disposed of in proceedings separate from the trial where the
five appellants in this case were convicted. Defendant Nick Civella died before
trial. Defendants Donald Joe Shepard, Billy Clinton Caldwell and Joseph Vincent
Agosto entered guilty pleas before trial. (Agosto, now deceased, was the
government's principal witness against the other defendants.) Defendant Carl
Caruso participated in the trial for a short time and then entered a guilty
plea. Defendant Peter Joseph Tamburello was acquitted.
[*904] Appellant Thomas was convicted on one count of
conspiracy, six counts of interstate transportation of stolen property, and
three counts of violation of the Travel Act. He was sentenced to a total of
fifteen years in prison.
Appellant DeLuna was convicted of one count of
conspiracy, seven counts of interstate transportation of stolen property, and
five counts of violation of the Travel Act. He was sentenced to a total of
thirty years in prison
[**4] and probation for
five years following the imprisonment.
Appellant Civella was convicted
of one count of conspiracy, six counts of transportation of stolen property, and
two counts of violation of the Travel Act. He was sentenced to a total of thirty
years in prison.
Appellant Moretina was convicted of one count of
conspiracy and three counts of interstate transportation of stolen property. He
was sentenced to a total of twenty years in prison and five years probation
following the imprisonment.
Appellant Chiavola was convicted of one
count of conspiracy and one count of interstate transportation of stolen money.
He was sentenced to a total of fifteen years in prison.
All appellants
were assessed heavy fines and ordered to pay the costs of the prosecution and to
make restitution to the Tropicana Hotel and Country Club.
During the
period covered by the indictment (January 1, 1975, to April 1, 1979), the state
of Nevada required that persons conducting gaming operations be licensed in
accordance with state law and regulations. See Appendix. Any person who owned,
managed, or operated a gambling casino, or received directly or indirectly a
share of the moneys played therein,
[**5] had to
make his identity known to Nevada gaming authorities and had to be licensed. Key
employees, that is, persons who had significant influence over casino
management, were required to be licensed. Certain employees, including managers,
were required to obtain work permits. Persons who had been convicted of
felonies, had poor reputations, or were excluded by law from casinos, and others
known to associate with such persons were not likely to be licensed. Donald
Shepard and Billy Caldwell were licensed with respect to the Tropicana casino in
Las Vegas. Carl Thomas was licensed with respect to his own casinos, Bingo
Palace and Slots-of-Fun. None of the other defendants charged in the indictment
was licensed or had been issued a work permit.
The government charged
and sought to prove that the defendants conspired to gain control over the
casino operations at the Tropicana Hotel and Country Club in Las Vegas, Nevada,
in order to "skim" money from the casino by removing cash before it was counted
or reported and to transport this skimmed money in interstate commerce. The
evidence consisted primarily of the testimony of co -conspirator Joseph Agosto,
tape recordings, notes made by DeLuna
[**6] and
other defendants, surveillance testimony by FBI agents, testimony of Tropicana
officials, and stipulations. The events described below are based primarily on
Agosto's testimony.
Agosto met with Carl DeLuna and Nick and Carl
Civella in January 1975 to discuss means by which Agosto could infiltrate and
obtain control of the Tropicana so that Agosto could eventually skim money from
the casino. DeLuna and the Civellas told Agosto that they would see to it that a
Teamsters loan to Tropicana's part-owner Deil Gustafson would be disapproved in
order to facilitate Agosto's takeover. The Tropicana at the time was in serious
financial trouble. Agosto purchased the Folies Bergere, the successful floor
show at the Tropicana, and used this as a base to acquire influence over casino
operations.
Agosto, a convicted felon, knew he could never be licensed
by the Nevada gaming authorities. The Civellas were in the "Black Book" of
persons excluded from Nevada casinos and therefore knew that they could not be
licensed. Because Agosto and the Civellas could not be licensed, they agreed to
use code names to "camouflage"
[*905] their
true identities and connections with the Tropicana.
Nick
[**7] Civella instructed Agosto to keep DeLuna informed of
his progress in infiltrating the casino. Agosto began to acquire great influence
over the daily operations of the hotel and casino. Agosto reported this to
DeLuna, who in turn informed the Civellas. Agosto frequently travelled from Las
Vegas to Kansas City to meet with DeLuna, Moretina and the Civellas, who
occasionally travelled to Las Vegas to discuss Agosto's progress.
At
Agosto's request in 1975, Nick Civella was able to rid the Tropicana of
competing "hidden" interests. Agosto, DeLuna, and the Civellas then decided to
use Carl Thomas to take charge of the skimming at the Tropicana.
Later
in 1975, Mitzi Briggs became part-owner of the Tropicana and Agosto's
infiltration and exercise of authority ceased temporarily because of Briggs'
distrust of Agosto. By 1977, however, Agosto was able to gain Briggs' confidence
and by 1978, Agosto was effectively running the hotel and casino. Briggs never
knew that any skimming was taking place.
Upon Carl Thomas'
recommendation, Agosto hired Shepard as casino manager. Later Agosto hired
Caldwell as assistant casino manager. Shepard and Caldwell were to do the actual
skimming under Thomas'
[**8] supervision.
In March 1978, Agosto and Thomas met or spoke with Nick Civella in Los
Angeles and Civella ordered them to start skimming. In April 1978, 1,500 was
skimmed by Shepard and transported to Kansas City by DeLuna.
In May
1978, Shepard hired Jay Gould as cashier to skim cash from the cashier's cage of
the casino and to falsify fill slips to document the "loss" of cash. Signatures
and initials of other casino employees were forged by Caldwell. Caldwell
supervised Gould, who passed the skimmed money to Shepard. This money was
skimmed before the casino owner or the Nevada gaming authorities knew of its
existence.
From June through October 1978, Shepard, Caldwell and Gould
skimmed over $40,000 a month and gave it to Agosto. Agosto then gave it to Carl
Caruso, who transported the money to Kansas City and delivered it to Moretina.
Caruso made at least eighteen trips between Las Vegas and Kansas City. Moretina
gave Caruso $ 1,000 after each delivery. The remaining money was distributed to
Joseph Aiuppa and Jack Cerone in Chicago. Anthony Chiavola, Sr., the nephew of
the Civellas and a Chicago police officer, aided DeLuna and Nick Civella in the
distribution of Aiuppa's and Cerone's
[**9]
shares. Moretina acted as DeLuna's assistant in dealing with Agosto and in
receiving the skimmed money from Caruso.
By late September 1978, Agosto
and the Civellas were concerned that Shepard or his subordinates might be doing
"unauthorized" skimming on their own, thereby reducing their profits. At
Agosto's suggestion, a "moratorium" on skimming was ordered by Nick Civella in
the months of November and December 1978, so that Carl Thomas could do a study
of the Tropicana to determine if unauthorized skimming was occurring. In these
same months, Agosto sent $50,000 and $60,000 of his own money to the Civellas
because they still demanded money. Agosto was later reimbursed for $30,000 of
this amount by Shepard with skimmed Tropicana money.
On November 26,
1978, Agosto and Thomas flew to Kansas City to meet with the Civellas and DeLuna
to discuss lifting the moratorium and more efficient ways of skimming. Skimming
resumed in January 1979 and $80,000 in skimmed money was transported to Kansas
City on February 14, 1979. Several defendants' homes were searched on that date
by FBI agents pursuant to search warrants. The FBI seized $80,000 from Caruso.
Notes (referred to during the trial
[**10] as a
"dairy" [sic]) and other items were seized from DeLuna and Tamburello.
From approximately June 1978 until March 1979, many telephones and
meeting places of the defendants were subject to court-authorized electronic
surveillance.
[*906] Immediately following the
searches, Agosto, the other defendants, Aiuppa, and Cerone engaged in a series
of meetings and telephone conversations to assess the damage done by the
searches. Evidence about these meetings and telephone conversations obtained by
electronic and visual surveillance and from government witness Agosto was
introduced at the trial.
Travel Act Violations Appellants
argue that the district court erred in refusing to grant their motions for
judgment of acquittal on the ground that the government failed to prove an
essential element of the conspiracy charged in count one of the indictment and
of the substantive Travel Act violations,
18
U.S.C. § 1952. Appellants argue that the government failed to prove any
criminal violations of Nevada gaming law. We disagree.
Count one of the
indictment charged appellants and others with conspiring in violation of
18
U.S.C. § 371 from about January 1, 1975, to about April
[**11] 1, 1979, to travel in interstate commerce and to
use facilities in interstate commerce
with the intent to promote, manage, establish, carry on and
facilitate the promotion, management, establishment and carrying on of an
unlawful activity, namely: the management, operation, conducting, maintaining
and carrying on of gaming operations of a licensed gaming establishment in Las
Vegas, Nevada, that is, the Tropicana Hotel and Country Club, and the indirect
receipt of moneys played therein, by persons who were not licensed or found
suitable for licensing by, and whose interests in said gaming establishment
had been concealed from, agencies of the State of Nevada, in violation of the
Nevada Gaming Control Act, including Sections 463.130, 463.160, 463.165,
463.170, 463.200, 463.335, 463.339, 463.360 and 463.530 of the Nevada Revised
Statutes, and regulations of the Nevada Gaming Commission promulgated
thereunder, including Regulations 3.080, 3.100, 3.110, 8.010 and 15.1594-6,
and to thereafter perform and attempt to perform acts to promote, manage,
establish, carry on and facilitate the promotion, management, establishment,
and carrying on of said unlawful activity in violation of [**12] Title 18,
United States Code, Section 1952.
The indictment
also alleged appellants and others conspired to "transport in interstate
commerce moneys having a value in excess of $5,000, knowing the same to have
been stolen, converted, and taken by fraud, in violation of Title
18,
United States Code, Section 2314."
Appellants argue that the
government proved only that an unlicensed show producer had assumed de facto
control of some operations of the Tropicana Hotel through which he ultimately
brought employees into the hotel to steal casino revenues. Appellants argue that
theft is a crime in Nevada but not under the Nevada gaming laws. Appellants also
argue that the operation or control of a gambling game without a license is not
a criminal offense under Nevada law and that such conduct in violation of Nevada
gaming regulations only cannot support a Travel Act violation.
Similar
arguments involving the Nevada gaming laws and federal prosecution for
violations of the Travel Act were rejected by the Sixth Circuit in a
comprehensive opinion in
United
States v. Goldfarb, 643 F.2d 422, 426-32 (6th Cir.),
cert.
denied,
454
U.S. 827, 70 L. Ed. 2d 101, 102 S. Ct. 117, 102 [**13] S. Ct. 118
(1981). The Travel Act,
18
U.S.C. § 1952, prohibits travel in interstate commerce or the use of
facilities of interstate commerce to "promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or carrying on, of any
unlawful activity," which is further defined as "any business enterprise
involving gambling . . . in violation of the laws of the State in which they are
committed." "It is the violation of federal law which is the gravamen of a
Travel Act offense."
United
States v. Goldfarb, 643 F.2d at 426 (citations omitted). As noted in
United
States v. Goldfarb, 643 F.2d at 426, which involved conduct similar to
that alleged in the present
[*907] case, "it is
abundantly clear that as a predicate to a Travel Act conviction, absent a
distinct violation of a law of the United States, the defendants must have
engaged in some form of unlawful activity prohibited by the law of the State of
Nevada."
We agree with the Sixth Circuit that "a violation of a Nevada
Gaming Commission regulation could [not in and of itself] form the predicate
state law violation required for a federal prosecution under the Travel Act."
Id.
at 429; [**14] cf. United
States v. Gordon, 464 F.2d 357 (9th Cir. 1972) (violation of nonpenal
regulations of state gaming commission insufficient for engaging in "illegal
gambling business" in violation of
18
U.S.C. § 1855). However, according to the government's indictment and the
district court's instructions, the unlawful activity under the Travel Act in the
present case was not based upon violation of state regulations alone but also
upon violation of the related Nevada
statutes. See United
States v. Goldfarb, 643 F.2d at 430. Appellants also argue that
the unlawful activity with which they are accused is not a crime under Nevada
state law. The government argues that appellants violated Nevada state law by
conducting gambling operations without the necessary licenses, Nev. Rev. Stat. §
463.160 (1)(a), and by indirectly receiving gambling moneys without the
necessary licenses,
id. § 463.160 (1)(c).
Although there is
no specific penalty for violation of these provisions, the "catch-all" section,
id. § 463.360, which makes such a violation a gross misdemeanor, and
thus a crime, would apply.
See United
States v. Goldfarb, 643 F.2d at 431; United
States v. Polizzi, [**15] 500 F.2d 856, 873 & n. 17 (9th
Cir. 1974) ("Once a violation of a state criminal
statute has been proved it is irrelevant whether that violation is classified as
a felony or misdemeanor."),
cert. denied,
419
U.S. 1120 (1975). The cited Nevada statutes are set forth in an appendix.
Validity of Search Warrant Appellants argue that the search
of the DeLuna residence authorized by the magistrate was invalid because the
magistrate was not a neutral and detached judicial officer who could objectively
assess whether probable cause existed. Specifically, appellants argue that the
magistrate, while an Assistant United States Attorney from 1961 to 1971,
received extrajudicial information about the Civellas and their associates.
Appellants argue that during this ten-year period, Carl DeLuna and the Civellas
were the subject of an investigation which included electronic surveillance.
Further, appellants argue that, during the period the magistrate served as an
Assistant United States Attorney, the magistrate (1) was privy to investigative
reports which suggested that Carl DeLuna was engaged in anti-social behavior,
(2) participated in and supervised the writing and presentation to
[**16] the court of applications for search warrants
relating to Carl DeLuna, (3) presented evidence before the Grand Jury, and (4)
prosecuted appellant Carl Civella. Lastly, appellants argue that the magistrate
had a long-standing working relationship with the affiant, FBI Agent Ousley,
which added to the appearance of impropriety.
Every magistrate,
judge and justice must "disqualify himself [or herself] in any proceeding in
which his [or her] impartiality might reasonably be questioned."
Hale
v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1329 (8th Cir.
1985); see Hall
v. SBA, 695 F.2d 175, 178 (5th Cir. 1983); 28
U.S.C. § 455(a). Disqualification is appropriate only if the facts provide
what an objective, knowledgeable member of the public would find to be a
reasonable basis for doubting the judge's impartiality.
In
re United States, 666 F.2d 690, 695 (1st Cir. 1981); United
States v. Poludniak, 657 F.2d 948, 954 (8th Cir. 1981), cert.
denied,
455
U.S. 940, 71 L. Ed. 2d 650, 102 S. Ct. 1431 (1982). A magistrate or
judge must also disqualify himself or herself if "he [or she] has served in
governmental employment and in such capacity participated as counsel
[**17] . . . concerning the proceeding."
28
U.S.C. [*908] § 455(b)(3). If an indictment
or investigation leading directly to the indictment began after a former
prosecutor took office as a judge, he or she is not considered to have been "of
counsel" and is not required by § 455 to disqualify himself or herself.
Barry
v. United States, 528 F.2d 1094, 1098-99 (7th Cir.),
cert.
denied,
429
U.S. 826, 97 S. Ct. 81, 50 L. Ed. 2d 88 (1976). We hold that the
magistrate was not required by § 455 to disqualify himself. The magistrate was
not government counsel in this case. Appellants do not argue that the
investigation which led to the present prosecution was related to the
investigation and prosecution handled by the magistrate when he was an Assistant
United States Attorney or that the magistrate was still in the United States
Attorney's office when the present investigation began. Neither are there facts
alleged which would cause a reasonable person, knowledgeable of all the facts,
to believe that the magistrate was unable to impartially assess the existence of
probable cause.
Knowledge of and
from prior investigation does not necessarily require recusal.
Appellants next argue
[**18] that the
search warrant was a "general warrant" and was invalid because it did not state
with specificity the items to be seized. We do not agree.
Where the
precise identity of goods cannot be ascertained at the time the warrant is
issued, naming only the generic class of items will suffice because less
particularity can be reasonably expected than for goods (such as those stolen)
whose exact identity is already known at the time of
issuance.
United
States v. Johnson, 541 F.2d 1311, 1314 (8th Cir. 1976) (citations
omitted).
See also Andresen
v. Maryland, 427 U.S. 463, 475-82, 49 L. Ed. 2d 627, 96 S. Ct. 2737
(1976). This lack of specificity is often encountered and has been expressly
approved.
United
States v. Coppage, 635 F.2d 683, 687 (8th Cir. 1980); United
States v. Williams, 633 F.2d 742, 745 n.5 (8th Cir. 1980); United
States v. Dennis, 625 F.2d 782, 792 (8th Cir. 1980); In
re Search Warrant Dated July 4, 1977, 187 U.S. App. D.C. 297, 572 F.2d 321,
328 n.4 (D.C. Cir. 1977), cert. denied,
435
U.S. 925, 98 S. Ct. 1491, 55 L. Ed. 2d 519 (1978). The pertinent part of the
warrant in the present case authorized seizure of certain generic
[**19] classes of items and "other means of transferring,
distributing and concealing casino proceeds" in violation of the named statutes.
The description of the items to be seized by generic classes was reasonably
specific under the circumstances of the present case.
The government
argues that appellants Civella, Moretina, and Chiavola lacked standing to object
to the validity of the search warrant and the seizure of items pursuant to the
search warrant. We need not decide this issue because DeLuna had standing to
challenge the search of his house.
Admissibility of Writings Seized from
Co-conspirators Thomas argues that the notes or writings seized
pursuant to a search warrant from the homes of DeLuna and Tamburello were
improperly admitted under the co -conspirator statement exception to the hearsay
rules. Thomas argues that the independent evidence presented by the government
was insufficient to prove that the statements were made "in furtherance of" the
charged conspiracy.
A statement,
including a writing, is not hearsay under Fed. R. Evid. 801(d)(2)(E) if it is "a
statement by a co -conspirator of a party during the course and in furtherance
of the conspiracy." In
United
[**20] States v. Bell, 573 F.2d 1040, 1044 (8th Cir.
1978), this court stated that
before an
out-of-court declaration of a co -conspirator may be admitted against a
defendant, the government must prove that (1) a conspiracy existed, (2) the
defendant and the declarant were members of the conspiracy, and (3) the
statements were made during the course and in furtherance of the conspiracy.
The district
court determines the admissibility of the co -conspirators statement under Fed.
R. Evid. 801(d) (2) (E) and must be satisfied that "it is more likely
[*909] than not that the statement was made during the
course and in furtherance of an illegal association to which the declarant and
the defendant were parties."
DeMier
v. United States, 616 F.2d 366, 371 (8th Cir. 1980), citing United
States v. Bell, 573 F.2d at 1044. In order to be made in furtherance of
the conspiracy, a statement "must somehow advance the objectives of the
conspiracy, not merely inform the listener [or reader] of the declarant's
activities."
United
States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983) (citations
omitted),
cert. denied,
465
U.S. 1107, 80 L.Ed 2d 142, 104 S. Ct. 1613 (1984). In the present
[**21] case the district court conditionally
admitted several cryptic writings containing code names, telephone numbers, and
references to disbursements of moneys. At the close of the government's
evidence, the district court made an explicit finding in the record, as required
by
United States v. Bell, that the government proved by independent
evidence that the proffered writings were more likely than not made during the
course and in furtherance of a conspiracy of which Thomas and other appellants
were members.
In
United
States v. Singer, 732 F.2d 631, 636 (8th Cir. 1984) (citations
omitted), this court, in discussing the admissibility of the co -conspirators
statements, stated that
although "the
evidence must be independent,
i.e. exclusive of the challenged
statements, . . . it may be circumstantial . . . . The district court's
determination will not be reversed unless [it is] clearly erroneous." Therefore,
we must decide whether the district court's conclusion that the challenged co
-conspirators statements were made in furtherance of the conspiracy was clearly
erroneous.
Agosto testified at length concerning Thomas' involvement in
the casino skimming conspiracy. Agosto
[**22]
explained that the handwritten cryptic notes referred to activities between
DeLuna and Carl Thomas, such as meetings, telephone conversations, and
disbursements of funds made in connection with the skimming operations. The
district court concluded that the notes were part of the records made on the
skimming operation and held that these records were made in furtherance of the
conspiracy.
See, e.g., United
States v. Shursen, 649 F.2d 1250, 1256 (8th Cir. 1981)
(
Shursen). In
Shursen, we held that ledgers containing cryptic
notes of wagering transactions relating to a gambling operation were made in
furtherance of the conspiracy because such records were necessary to a gambling
operation.
Id.
at 1256. We hold that the district court's conclusion was not clearly
erroneous.
Thomas also argues that some of the notes referring to
disbursements of moneys have legitimate explanations,
i.e., that the
notes indicated repayments on loans and therefore were inadmissible because they
were not made during the course and in furtherance of the charged conspiracy.
However, after careful examination of the voluminous record before this court,
we hold that the district court's finding
[**23]
that these notes were made during the course and in furtherance of a conspiracy
to which Thomas belonged is not clearly erroneous.
Confrontation
Rights Appellants argue that even if properly admitted as co
-conspirators statements pursuant to Fed. R. Evid. 801(d) (2) (E), the admission
of notes seized from the homes of DeLuna and Tamburello and certain tape
recordings violated their rights under the confrontation clause of the sixth
amendment. The circuits are divided as to whether a co -conspirator statement
that is admissible under Fed. R. Evid. 801(d) (2) (E) necessarily satisfies the
requirements imposed by the confrontation clause. This circuit, following the
Supreme Court decision in
Ohio
v. Roberts, 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 100 S. Ct. 2531
(1980), has held that
even if a co
-conspirator statement is admissible under Fed. R. Evid. 801(d) (2) (E), in
order to satisfy the requirements of the confrontation clause, the government
must demonstrate that the declarant is unavailable and that the statement bears
sufficient indicia of reliability.
See United
States v. Massa, 740 F.2d 629, 638-39 (8th Cir. 1984). Accord
United
[*910] States v. Ammar [**24] , 714 F.2d 238,
254-57 (3d Cir.),
cert.
denied,
464
U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983); United
States v. Perez, 658 F.2d 654, 660-61 & n.5 (9th Cir. 1981); United
States v. Wright, 588 F.2d 31, 37-38 (2d Cir. 1978), cert.
denied,
440
U.S. 917, 99 S. Ct. 1236, 59 L. Ed. 2d 467 (1979). Several circuits have
adopted "a per se rule permitting the use of properly admissible extrajudicial
statements of a co -conspirator who does not take the stand at trial without
risk of reversal for violation of his co -defendants rights to confrontation."
United
States v. Papia, 560 F.2d 827, 836 n.3 (7th Cir. 1977); accord
United
States v. Lurz, 666 F.2d 69, 80-81 (4th Cir. 1981), cert.
denied,
455
U.S. 1005, 71 L. Ed. 2d 874, 102 S. Ct. 1642 (1982); United
States v. McManus, 560 F.2d 747, 750 (6th Cir. 1977), cert.
denied,
434
U.S. 1047, 54 L. Ed. 2d 798, 98 S. Ct. 894 (1978); Ottomano
v. United States, 468 F.2d 269, 273 (1st Cir. 1972), cert.
denied,
409
U.S. 1128, 35 L. Ed. 2d 260, 93 S. Ct. 948 (1973). The declarants
who were also co -defendants in the present case are considered "unavailable"
for the purposes of the confrontation clause
[**25] because they exercised their fifth amendment right
and chose not to testify at their trial. We only need to consider, therefore,
the "indicia of reliability" of the statements made by the co -defendants.
See United
States v. Ammar, 714 F.2d at 255. As noted above, this court
has already rejected the government's argument that the co -conspirators
exception is a "firmly rooted hearsay exception" and that reliability can be
presumed under
Ohio
v. Roberts. See United States v. Massa, 740 F.2d at 639. See also
United
States v. Ammar, 714 F.2d at 255. n2 This court, however, has stated
that
although "the
confrontation clause and the hearsay exceptions are not co -extensive . . .
evidence properly admitted under the co -conspirator exception does not, absent
unusual circumstances, violate the confrontation clause."
United
States v. Panas, 738 F.2d 278, 283-84 (8th Cir. 1984) (citations
omitted).
See also United
States v. Bentley, 706 F.2d 1498, 1507 n.7 (8th Cir. 1983), cert.
denied,
467
U.S. 1209, 81 L. Ed. 2d 354, 104 S. Ct. 2397, 81 L. Ed. 2d 354 (1984); United
States v. Kiefer, 694 F.2d 1109, 1113 (8th Cir. 1982); United
States v. Singer, 660 F.2d 1295, [**26] 1307 (8th Cir.
1981), cert. denied,
454
U.S. 1156, 71 L. Ed. 2d 314, 102 S. Ct. 1030 (1982); United
States v. Nelson, 603 F.2d 42, 46 (8th Cir. 1979). Accord United
States v. Ammar, 714 F.2d at 256. The following factors are relevant to
the reliability inquiry under the confrontation clause: (1) whether the context
of the statements and the persons to whom they were made suggest that the
statements are reliable, (2) whether the declarant had a motive for lying, (3)
whether the declarant had difficulty with his or her memory, and (4) whether the
declarant had personal knowledge of the identity and role of the participants in
the crime.
See United
States v. Massa, 740 F.2d at 639; United
States v. Kiefer, 694 F.2d at 1113. It is not necessary that all four
factors be present in order to satisfy the confrontation clause.
United
States v. Ammar, 714 F.2d at 256. - - - - - - - - - - -
- - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 As noted by
this court in
United
States v. Massa, 740 F.2d 629, 639 (8th Cir. 1984), citing United
States v. Ammar, 714 F.2d 238, 255 (3d Cir.),
cert. denied,
464
U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983),
the Federal Rules of Evidence categorize coconspirator
statements along with admissions as "statements which are not hearsay." Fed.
R. Evid. 801(d) (2). Admissions are not admitted because of confidence in
their inherent reliability; rather, they are admitted because a party will not
be heard to object that [she or he] is unworthy of credence.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
[**27] After careful review of the
record we are convinced that the out-of-court statements by DeLuna and
Tamburello contain sufficient "indicia of reliability." Certainly DeLuna and
Tamburello had personal knowledge of the identity and the roles of the
conspiracy members. The statements were not made under circumstances that
suggest an incentive for prevarication. n3 Finally, the statements were
corroborated
[*911] by independent evidence.
Id. at 256-57.
- - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n3 In
United
States v. Ammar, 714 F.2d at 257 n.16, the court noted that
virtually all of the statements . . . admitted under Rule 801(d)
(2) (E) were made to other members of the conspiracy. In view of the
importance of maintaining trust between conspirators, and the possibility that
whatever was said by one might be relied upon by the others, the conspirators
would have understood that a falsehood could have destroyed the enterprise in
which they were jointly engaged. Moreover, many of the statements were made
under circumstances which indicate spontaneity, decreasing the likelihood of
deliberate falsehood.
The statements in the present
case were made under similar circumstances.
- - - - - - - - - - -
- - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**28] Although we caution district courts to
carefully monitor the admission of co -conspirator statements in complex
conspiracy trials such as the one in the present case, we hold that the co
-conspirators statements did not violate the confrontation clause.
Agosto's Testimony Thomas argues that the district court
abused its discretion under Fed. R. Evid. 611(a) in permitting the government to
present Agosto's testimony in such a way that Thomas argues restricted defense
counsel's ability to effectively cross-examine Agosto. The government argues
that the orderly presentation of evidence approved by the district court aided
the jury's understanding of a complex case and at the same time protected all
appellants' confrontation rights. The government argues, therefore, that the
district court did not abuse its discretion in approving the presentation of
Agosto's testimony. We agree.
During the government's case-in-chief,
Agosto took the stand on three separate occasions (June 8-10, June 14-16, and
June 20-21). During each Agosto "installment," the government introduced as
evidence many tape-recorded conversations and handwritten notes concerning the
conspiracy, and Agosto testified
[**29] about
this evidence immediately after its presentation. Upon completion of each
installment, defense counsel was permitted to thoroughly cross-examine Agosto,
using the notes and tape recordings presented on direct, as well as the
transcripts of the tape recordings to aid the cross-examination. n4 Defense
counsel, however, wished to cross-examine Agosto immediately after his
commentary upon each of the 106 tape recordings, not following each installment.
To demonstrate the necessity of such frequent cross-examination, defense counsel
presented to the district court an affidavit by a psychologist attesting to the
adverse psychological impact upon the jury of the procedure requested by the
government.
- - - - - - - - - - - - - - - - - -Footnotes- - - - -
- - - - - - - - - - - - -
n4 Each installment of Agosto's testimony was
followed by supplemental testimony of witnesses providing background and
foundational evidence. Corroborating Agosto's testimony, FBI agents testified
about their surveillance of the skimming operations. Thomas does not dispute
that each corroborative witness was subjected to thorough cross-examination by
defense counsel immediately following his or her testimony.
- - -
- - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**30] The district court was
unpersuaded by the psychologist's affidavit. Relying on
United
States v. Jackson, 549 F.2d 517 (8th Cir.),
cert. denied,
430
U.S. 985, 97 S. Ct. 1682, 52 L. Ed. 2d 379 (1977), and Fed. R. Evid. 611(a),
the district court allowed the government to present Agosto's testimony in
installments, permitting cross-examination of Agosto by defense counsel only at
the completion of each installment. To protect appellants' rights of
confrontation, the district court instructed the government to interrogate
Agosto as any other witness, that Agosto would not be permitted to testify in a
narrative fashion. The district court also warned the government that each
installment of Agosto's testimony must relate to a new subject, to a new
sequence of events. The district court stated that Agosto could not clarify
previous testimony in subsequent installments. Thomas argues that despite these
safeguards the manner in which Agosto's testimony was presented rendered Agosto
effectively impervious to cross-examination.
In this circuit
the manner and
order of interrogation and presentation of evidence are matters committed to the
discretion of the district court.
See United [**31] States
v. Jackson, 549 F.2d at 528. The method of presenting Agosto's
testimony
[*912] permitted by the district
court in the present case provided Thomas ample opportunity to thoroughly
cross-examine Agosto regarding his testimony. The district court concluded that
with the proper safeguards the orderly presentation requested by the government
did not diminish Thomas' or other appellants' right to effective
cross-examination. We hold that the district court did not abuse its discretion
in permitting the government to present Agosto's testimony in installments.
Expert Testimony Thomas and Civella argue that
the district court abused its discretion in excluding the testimony of a
linguistics expert that Thomas and Civella argue was vital to their theory of
defense. Thomas and Civella sought to introduce the testimony of an expert in
the field of applied linguistics to testify concerning the results of a
"discourse analysis" the expert performed on the Marlo tape. Discourse analysis
focuses on the structure of a conversation in order to determine which speakers
have "conversational power" or the ability to control the conversation.
Appellants hoped to demonstrate that
[**32]
their participation in the Marlo tape conversation focused on their legitimate
financial interests and the other participants emphasized the illegal
activities.
Fed. R. Evid. 702
states that "if scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert . . . may testify thereto in the form of
an opinion or otherwise." The district court has broad discretion in deciding
whether to admit expert testimony.
See Holmgren
v. Massey-Ferguson, Inc., 516 F.2d 856, 858 (8th Cir. 1975). In
United
States v. Schmidt, 711 F.2d 595, 598-99 (5th Cir. 1983), cert.
denied,
464
U.S. 1041, 79 L. Ed. 2d 169, 104 S. Ct. 705 (1984) (
Schmidt), the
court upheld the district court's decision to exclude the testimony of a
linguistics expert. In
Schmidt, the defense, through expert testimony,
sought to explain how certain statements, that on their face might be construed
to be false, might be viewed differently when considered in the context of the
entire discussion. The Fifth Circuit concluded, however, that the district court
was in the best position to determine whether
[**33] the proffered expert testimony would assist or
confuse the jury and held that the district court did not abuse its discretion
in refusing to admit the expert testimony.
Id. In the present
case the district court considered the arguments of counsel on this issue and,
outside the presence of the jury, permitted the expert to explain the nature of
his proposed testimony. The district court excluded the proffered expert
testimony on the ground that it would confuse the jurors rather than assist them
to understand the evidence or to determine a fact in issue. We hold that the
district court did not abuse its discretion in excluding the proffered expert
testimony.
Evidence of "Other Crimes" and "Bad Acts"
Appellants argue that the district court erred in admitting evidence of
"other crimes" and acts tending to show bad character because the evidence was
irrelevant or its probative value was outweighed by its prejudicial impact and
therefore should have been excluded under Fed. R. Evid. 404(b).
Fed. R. Evid.
404(b) states that evidence of "other crimes, wrongs, or acts" is not admissible
to prove character, but is admissible "for other purposes, such as proof of
motive,
[**34] opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." Rule 404(b) is
one of inclusion rather than exclusion and "admits evidence of other crimes or
acts relevant to any issue in the trial, unless it tends to prove only criminal
disposition."
United
States v. Wagoner, 713 F.2d 1371, 1375 (8th Cir. 1983). Evidence of
prior wrongful acts is admissible if (1) the evidence is relevant to an issue
other than the defendant's character, (2) there is clear and convincing evidence
that the defendant
[*913] committed the other
acts, and (3) the potential unfair prejudice does not outweigh its probative
value.
Id., citing United
States v. Evans, 697 F.2d 240, 247-48 (8th Cir.),
cert.
denied,
460
U.S. 1086, 76 L. Ed. 2d 350, 103 S. Ct. 1779 (1983). Evidence which
is probative of the crime charged, and not solely uncharged crimes, is not
"other crimes" evidence.
United
States v. Bagaric, 706 F.2d 42, 68 (2d Cir.),
cert. denied,
464
U.S. 840, 78 L. Ed. 2d 128, 104 S. Ct. 133 (1983); United
States v. Black, 692 F.2d 314, 316 (4th Cir. 1982). Further, where the
evidence of an act and the evidence of the crime charged are inextricably
[**35] intertwined, the act is not extrinsic and
Rule 404(b) is not implicated.
United
States v. Caspers, 736 F.2d 1246 (8th Cir. 1984); United
States v. Derring, 592 F.2d 1003, 1007 (8th Cir. 1979). The
trial court has broad discretion under this rule,
United
States v. Evans, 697 F.2d at 248, and will be reversed only when the
evidence "clearly has no bearing upon any of the issues involved."
United
States v. Wagoner, 713 F.2d at l375. In balancing the prejudicial effect
and probative value, great deference is given to the district judge's
determination,
United
States v. Boykin, 679 F.2d 1240, 1244 (8th Cir. 1982), and express
findings are not required.
United
States v. Koessel, 706 F.2d 271, 275 n.4 (8th Cir. 1983); United
States v. Evans, 697 F.2d at 248-49. We examine appellants' objections
to the admission of evidence of "other crimes" and wrongful acts in light of
these general principles.
TROPICANA AND EL DORADO
MERGER The government presented evidence that Agosto and
Tropicana executives hoped to merge with another public corporation, the El
Dorado Corporation, which sold recreational vehicles. The goal of the merger was
to pump new life into
[**36] the Tropicana,
which had suffered many financial setbacks. Agosto testified that he had
"insider information" that the stock was to be offered to the public and feared
the Securities and Exchange Commission might launch an investigation of him, the
Tropicana, and the merger if Agosto and his associates made large profits on the
stock venture.
The government argues that the evidence about the
proposed merger did not constitute evidence of other crimes or wrongful acts.
The government further argues that the evidence was relevant to its case because
it showed Agosto's control of the Tropicana, DeLuna's supervision of Agosto, and
DeLuna and the Civellas' intent to exercise control over the Tropicana and their
involvement in the management decisions of the Tropicana.
We hold that
the district court did not abuse its discretion in admitting evidence of the
proposed merger. The evidence was offered to prove that appellants had a hidden
interest in the Tropicana and exercised control over decisions concerning the
Tropicana. This evidence, therefore, is probative of the crime charged and is
not evidence of other crimes or wrongful acts.
United
States v. Black, 692 F.2d at 316. [**37] CHICAGO CONSPIRACY (ARGENT
CORPORATION) The Argent Corporation, which owned four casinos,
was allegedly the focus of a conspiracy to skim money from casinos and to
transport the money in interstate commerce. This conspiracy is the subject of
another indictment (
United States v. DeLuna, No. 83-124-01-CRW8 (W.D.
Mo.);
United
States v. DeLuna, 759 F.2d 659 (8th Cir. 1985) (interlocutory appeal
from order denying motion to dismiss indictment)); there is a partial overlap in
time and membership in the Chicago conspiracy and the conspiracy charged in this
case.
The government presented evidence that the Tropicana, although
financially unsound, was able to secure loans from several other casinos,
several of which belonged to the Argent Corporation. Agosto testified that the
Tropicana was able to secure the loans because of the Civellas' influence.
Appellants argue that the Chicago conspiracy is distinct from the
charged conspiracy in participants, aims, and conduct.
[*914] Appellants therefore argue that references to
control by Chicago, the Argent Corporation, and Agosto's efforts to acquire the
LIDO show at the Stardust (owned by the Argent Corporation) were part
[**38] of a second conspiracy, and the unfair prejudice
to appellants from the evidence outweighed any slight probative value.
The government argues that the references to the Argent Corporation and
persons associated with Chicago did not constitute evidence of "other crimes"
because the loans and the influence exercised to get them were not alleged or
shown to be illegal. The government also argues that the evidence was relevant
to show Agosto's control over the Tropicana and to establish that Civella
directed Agosto to certain places to obtain loans and used his influence to
insure that the loans were made. The government argues that other evidence
concerning Chicago (Agosto's testimony that skimmed money was going to Chicago
and that a meeting was to be held in Chicago in October 1978, certain notes of
DeLuna that document the transfer of Tropicana funds to persons in Chicago) is
evidence of the charged conspiracy and not other crimes evidence.
We
agree that this evidence is not "other crimes" evidence. The district court did
not abuse its discretion in admitting this evidence which was probative of
issues in the case.
ROSENTHAL GAMING ACTIVITIES
Frank Rosenthal, a non-licensed
[**39]
sports entertainer at the Stardust casino, was involved in an alleged conspiracy
which involved accusations by Rosenthal against the governor of Nevada and which
was reported in Las Vegas newspapers as an attempt to intimidate the governor
during his election campaign.
The government introduced testimony of
Agosto, newspaper articles about the Rosenthal accusations which were seized
from DeLuna's and Carl Civella's homes, and recorded conversations concerning
the activities of Rosenthal. Agosto testified that he feared that his status as
a non-licensed entertainer (as producer of the floor show) at the Tropicana
would be jeopardized if Rosenthal, who occupied a similar position at the
Stardust, continued his controversial activities and was subsequently
investigated because of these activities. Recorded conversations of appellants
discussing this concern were also admitted into evidence.
The government
argues that the evidence was offered to establish the interest and involvement
of DeLuna and the Civellas in the gaming industry in Las Vegas and their
interest in maintaining their de facto control of the Tropicana through Agosto.
We hold that the district court did not abuse
[**40] its discretion in admitting this evidence. The
evidence concerning Rosenthal was not "other crimes" evidence because Rosenthal
was not a defendant, the government did not allege and the evidence did not
indicate that appellants were involved with Rosenthal or that appellants
committed any crimes or wrongful acts. Further, the district court instructed
the jury that "these matters . . . do not necessarily in any respect relate to
anything illegal. And they are submitted solely for the purpose of showing the
contact between the parties with respect to these articles and an interest in
them by . . . parties."
"
BAKERS" CONSPIRACY The
government presented evidence that a group of individuals from New Jersey
identified as the "Bakers" held an undisclosed hidden interest in the Tropicana
prior to Agosto's gaining control. The Bakers reasserted an interest in the
Tropicana in 1978. Agosto testified that he met with Nick Civella in a light
projection room of the Tropicana to discuss this interest. Following
instructions from Chicago and the Civellas, Agosto paid the Bakers $375,000 of
his own money in order to buy out this interest. Agosto testified that this was
in keeping with
[**41] the agreements with the
Civellas that the Civellas would eliminate the Bakers as rivals to Agosto's
control of the Tropicana and would protect Agosto from other people who might
attempt to assert interests at the Tropicana.
[*915] The government argues that the evidence does not
indicate criminal activity by any appellant. The government further argues that
the evidence is highly probative of the conspiracy charged, that is, that
appellants had a hidden interest in the Tropicana and exercised management and
control over the Tropicana. We agree with the government's position and hold
that the district court did not abuse its discretion in admitting the evidence.
MISCONDUCT OF CARL THOMAS The government was
permitted to present recorded conversations of Carl Thomas (Marlo tape, Ex.
199), wherein he stated that he had been involved in skimming at many casinos in
Las Vegas for many years. This conversation occurred during a meeting wherein
appellants discussed various methods of skimming and Thomas related his
experience with skimming and recommended ways of skimming.
Appellants
argue that the evidence was highly prejudicial and should have been excluded
under Fed.
[**42] R. Evid. 404(b). The
government argues that the evidence was not other crimes evidence because the
references were inextricably intertwined in the offense charged and because the
evidence established Thomas' role in the conspiracy. Alternately, the government
argues that the evidence is admissible under Fed. R. Evid. 404 as proof of
intent.
We hold that the evidence was admissible. "The
rule limiting
admissibility of uncharged misconduct does not shield an accused from the
reception of evidence that he boasted of his past experience in crime in order
to reassure a prospective vender or co-worker of his skill and reliability."
United
States v. Stokes, 12 M.J. 229, 10 Mil. L. Rep. (Pub. L. Educ. Inst.)
2185, 2190 (C.M.A. 1982). Moreover, Thomas' statements, to the extent they prove
bad character and Rule 404(b) is implicated, are admissible to prove Thomas'
intent to engage in the charged conspiracy because Thomas had consistently taken
the position that he had no intent to join a conspiracy.
LIST OF
EXCLUDED PERSONS (BLACK BOOK) The government was permitted to
introduce evidence that Carl and Nick Civella appeared in the List of Excluded
Persons (commonly referred to
[**43] as the
Black Book). The Black Book is a list of people who must be excluded from Nevada
casinos by a gaming licensee. The Black Book is issued by the State Gaming
Control Board and adopted and promulgated by the Nevada Gaming Commission. A
gaming licensee is subject to disciplinary action if the licensee fails to evict
a person listed in the Black Book. A government witness testified that persons
listed in the book could not be licensed.
Appellants argue that the
names of Carl and Nick Civella were entered in the Black Book when there were no
regulations concerning who was to be included and the Civellas were given no
notification or opportunity to defend against inclusion. Appellants argue that
this evidence, strongly suggesting bad character, was prejudicial and should
have been excluded.
The government argues that the evidence was offered
to show that the Civellas, because they were in the book, could not be licensed.
Alternately, the government argues that the evidence would be admissible, even
if considered "other crimes" evidence, because it established the motives of
appellants. The government further argues that this evidence was necessary
because appellants refused to
[**44] stipulate
that they were "unlicensable." We hold that the district court did not abuse its
discretion in admitting this evidence.
PRISON RECORDS OF CIVELLA
AND QUINN TESTIMONY The government was permitted to present the
testimony of James Patrick Quinn (Nick Civella's attorney of many years), prison
visitation records and other evidence which indicated that Nick Civella had been
in prison and had been involved in a number of prior criminal proceedings.
Appellants argue that this evidence had no purpose other than to show that Nick
Civella had a propensity to commit crimes and to
[*916] raise an inference of guilt by association as to
the other defendants.
The government argues that the evidence was
admitted as necessary background or to establish the identity of the persons
referred to by code names in DeLuna's notes and the recorded conversations. The
principal method of establishing the identity of these persons was a comparison
of prison records reflecting visitors of Nick Civella with DeLuna's notes of the
same date. Other evidence (
e.g., prison hospital records, telephone
records) was also used in conjunction with DeLuna's notes to establish the
identities
[**45] of persons referred to by code
names, meeting places, participants in meetings, and recipients of "skimmed"
money. The government argues that Quinn's testimony was offered to establish
that DeLuna, Tamburello, and the Civellas used Quinn's office for the purposes
of the conspiracy.
We hold that the district court did not abuse its
discretion in admitting the prison visitation records of Nick Civella. The
evidence was not other crimes evidence because the government introduced the
evidence to prove the crime charged -- that appellants, referred to by code
names, were involved in the conspiracy and committed certain substantive
offenses as part of the conspiracy. The identification of appellants' code names
was critical to the government's case. DeLuna's notes and the tape recorded
conversations corroborate Agosto's testimony only if the code names and
appellants could be matched. Even if we consider the prison records as other
crimes evidence, it would still be admissible to establish identity under Rule
404(b) and the probative value of the evidence outweighs the prejudice resulting
from the evidence of a prior conviction.
The district court did not
abuse its discretion in admitting
[**46] Quinn's
testimony concerning appellants' use of Quinn's office for personal use
(meetings, phone calls, receipt of mail). The evidence was not other crimes
evidence because there was no allegation that this conduct was wrong or
criminal. Quinn in response to several questions did testify that he had
represented Nick Civella in a number of criminal proceedings and his answers
indirectly indicated that Civella had been convicted. The district court,
however, sustained Chiavola's objection to further questions concerning
convictions of Nick Civella.
Appellants also argue that Dr. Skinner's
testimony concerning Civella's status as a prisoner and the security surrounding
Civella while at the UCLA Medical Center -- guards and chains -- was erroneously
admitted. We agree that this is evidence of "other crimes" and does not come
within any of the exceptions of Rule 404(b). We hold, however, that this
evidence was harmless because evidence of Civella's prison record was properly
admitted as part of the government's evidence concerning the identity of the
code names. Consequently the erroneous admission of Dr. Skinner's testimony
concerning Civella's status as a prisoner could have had no
[**47] effect on the outcome of the trial.
Defense Counsel Conduct Appellants argue that
they suffered irreparable damage and prejudice as a result of Agosto's testimony
concerning alleged acts of impropriety by DeLuna's defense attorney. Appellants
argue that Agosto was "vituperative" and "hurled personal barbs" at the defense
attorney. Agosto during cross-examination by defense counsel charged that a
former partner of the defense attorney, who had represented Agosto prior to this
trial, had requested Agosto to lie under oath during a hearing before the Nevada
Gaming Control Board.
The government argues that this evidence was not
other crimes evidence because the evidence did not concern any crimes or
misconduct by appellants. The government further argues that the wrongdoing also
was not attributed to DeLuna's defense attorney, but rather to a former partner
of the defense attorney who did not represent any of the defendants at trial.
[*917] We hold that the district court
did not err in denying a severance or a mistrial based on the brief exchanges
between Agosto and DeLuna's defense attorney. The evidence was not other crimes
evidence and therefore Rule 404(b) is not
[**48]
implicated.
Evidence of Post-Conspiracy Meetings
Appellants argue that the district court erred in admitting testimony of
surveillance agents of a meeting on March 11, 1979, of Carl Civella, DeLuna,
Chiavola, Aiuppa, and Cerone at the Chicago residence of Anthony Chiavola.
Appellants argue that the charged conspiracy ended on February 14, 1979 (the
date appellants' homes were searched) and the meeting was evidence of another
conspiracy. The government argues that the meeting occurred during the period
encompassed by the charged conspiracy. Further, the indictment alleged that the
conspiracy continued until on or about April 1, 1979. The district court held
that the evidence of the March 11, 1979, meeting was reasonably probative of the
conspiracy charged because "it is a gathering in the context of months and weeks
of a close association, [from] which . . . the jury could reasonably infer the
conspiracy to commit wrongful acts." We agree with the district court's analysis
and hold that the district court did not abuse its discretion in admitting the
evidence.
Appellants also argue that the district court erred in
admitting a recorded conversation between the Civellas
[**49] and Chiavola on November 30, 1979, at the United
States Prison at Leavenworth (Ex. 237b) because the recorded statements were not
made in furtherance of the charged conspiracy, which ended at least nine months
before. The government argues that the tape recorded conversation was not
offered as a co -conspirator statement but was offered only against Carl Civella
and Chiavola to prove their consciousness of guilt because during the November
1979 conversation they discussed the two meetings held at Chiavola's house and
other acts in furtherance of the conspiracy. The district court did not abuse
its discretion in admitting the recorded conversation of November 30, 1979.
Although the conversation was not made during the course and in furtherance of
the charged conspiracy, the statements were admissible as admissions of a
party-opponent. Fed. R. Evid. 801(d) (2) (A);
e.g., United
States v. Kenny, 645 F.2d 1323, l339-40 (9th Cir.),
cert.
denied,
452
U.S. 920, 101 S. Ct. 3059, 69 L. Ed. 2d 425 (1981); United
States v. Porter, 544 F.2d 936, 939 (8th Cir. 1976). The district court
instructed the jury that the statements could only be considered against
Chiavola and Civella.
[**50] We have
carefully considered the remaining evidentiary issues raised by appellants and
find them to be without merit.
Pinkerton Instruction
Appellants next argue that the district court erred in giving the jury
Instruction No. 68, a "Pinkerton" instruction. n5
See Pinkerton
v. United States, 328 U.S. 640, 645-48, 90 L. Ed. 1489, 66 S. Ct. 1180
[*918] (1946). Appellants argue that a
Pinkerton instruction unconstitutionally creates a mandatory presumption which
shifts the burden of persuasion of every element of the offenses charged from
the government to the defendant.
See, e.g., Sandstrom
v. Montana, 442 U.S. 510, 523-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39
(1979); Mullaney
v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n5 Instruction No. 68 instructed the jury as follows:
If you find that a particular defendant is guilty of conspiracy as
charged in Count One, you may also find that defendant guilty of an offense or
offenses as charged in any one or more of Counts Two through Fifteen of the
indictment in which he is charged, provided that you find that the essential
elements of that Count as defined in these instructions have been established
beyond a reasonable doubt, and provided that you also find beyond a reasonable
doubt,
First, that the offense or offenses defined in the
non-conspiracy Counts Two through Fifteen was or were committed pursuant to or
in the scope of the conspiracy, and
Second, that the particular
defendant was a member of the conspiracy at the time that the offense or
offenses charged in Counts Two through Fifteen was or were committed.
Under the conditions just defined a defendant who is found guilty of
conspiracy may also be found guilty of the offense charged in another count or
counts even though he did not participate in the acts constituting the offense
as defined in the other count or counts. The reason for this is that a co
-conspirator committing an offense pursuant to a conspiracy is held to be the
agent of other conspirators.
- - - - - - - - - - - - - -
- - -End Footnotes- - - - - - - - - - - - - - - - -
[**51] Appellants' argument is without merit. The
district court did not err in giving a Pinkerton instruction to the jury.
E.g., United
States v. Redwine, 715 F.2d 315, 322 (7th Cir. 1983), cert.
denied,
467
U.S. 1261, 104 S. Ct. 2661, 81 L. Ed. 2d 367 (1984); United
States v. Richmond, 700 F.2d 1183, 1191 (8th Cir. 1983). The
instruction challenged in the present case correctly reflected the substance of
the holding in the
Pinkerton case that
a defendant found
guilty of a conspiracy may also be found guilty of substantive offenses
committed by a co -conspirator or co -conspirators, in furtherance of the
conspiracy, at the time that defendant was a member of the conspiracy, even
though that defendant did not participate in the substantive offenses or have
any knowledge of them.
328
U.S. at 645-48. The challenged instruction did not create any
unconstitutional presumptions and did not modify the government's burden to
prove every element of the offenses charged beyond a reasonable doubt.
Variance Appellants argue that reversal of their
convictions is required because there was a variance between the indictment and
the evidence which resulted in an amendment of the
[**52] indictment and which affected their "substantial
rights." Specifically, appellants argue that the evidence showed that multiple
conspiracies existed although the indictment alleged only one conspiracy.
Appellants further argue that the admission of irrelevant and inflammatory
evidence concerning these other conspiracies confused the jury and resulted in
substantial prejudice to them. Lastly, appellants argue that the district court
erred in failing to give a cautionary instruction.
The government argues
that the evidence did not establish multiple conspiracies. The government
further argues that any evidence of other conspiracies was admissible to prove
the charged conspiracy. n6
Variance refers
to the failure of the government's proofs to conform to the indictment. A
variance is not fatal to the prosecution unless the defendant could not
reasonably have anticipated from the indictment what evidence would be
presented at trial or unless the indictment is so vague as not to bar
subsequent prosecution on the same offense.
United
States v. Goldfarb, 643 F.2d at 433 (citing district court order
denying post trial motions). To resolve the question of whether the government's
[**53] proof showed that one or multiple
conspiracies existed, we must determine "whether there was 'one overall
agreement' to perform various functions to achieve the objectives of the
conspiracy."
United
States v. Jackson, 696 F.2d 578, 582 (8th Cir. 1982) (citations
omitted),
cert. denied,
460
U.S. 1073, 75 L. Ed. 2d 952, 103 S. Ct. 1531 (1983). The existence of a
single agreement can be inferred if the evidence revealed that the alleged
participants shared "a common aim or purpose" and "mutual dependence and
assistance" existed.
Id.
at 582-83, citing United
States v. Bertolotti, 529 F.2d 149, l54 (2d Cir. 1975);
see Hayes
v. United States, 329 F.2d 209, 213-14 (8th Cir.),
cert.
denied,
377
U.S. 980, 84 S. Ct. 1883, 12 L. Ed. 2d 748 (1964). - - - - -
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6
Appellants cite as error admission of evidence of these conspiracies on other
grounds. These alleged errors are discussed in other parts of this opinion.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
We hold that there was no variance between the indictment
and the evidence. The government offered
[**54]
the testimony of Agosto, various tape recorded conversations (notably the Marlo
tape of November 26, 1978), and DeLuna's notes to establish that appellants (and
other defendants) had a common aid or purpose -- the
[*919] skimming of money from the Tropicana and
transportation of this money to persons in other states who had a hidden
interest in the Tropicana. The evidence also showed "dependence and assistance"
among the co -conspirators. Agosto needed the Civellas' assistance to gain
control of the Tropicana, keep out other hidden interests at the Tropicana, and
maintain his cash flow at the Tropicana. The Civellas needed Agosto as their
agent at the Tropicana to convey information to them, implement decisions and
oversee the skimming operation. DeLuna and Moretina were needed to distribute
the money to the co -conspirators. Chiavola was involved in distributing money
to two individuals (Aiuppa and Cerone) in Chicago and in providing a meeting
place and security for the co -conspirators. Thomas, Caldwell and Shepard, under
the direction of the other co -conspirators, did the actual skimming at the
Tropicana.
Severance Appellants next argue that
the district court
[**55] abused its discretion
in denying their motions for severance. All appellants argue that they were
prejudiced by the "spillover effect" of the incriminating evidence presented at
the joint trial. Appellants also note that government witness Agosto repeatedly
made sarcastic and prejudicial references to lead defense counsel and counsel's
professional relationship with other persons who had been charged with similar
unlawful conduct. Thomas also argues that he was prejudiced because his co
-defendants had reputations as notorious gangsters and because government
witness Agosto made several statements which referred to his co -defendants
reputations for violence and revenge and Agosto's fear for his life because of
his cooperation with the government.
Thomas argues individually that he
was also prejudiced because his co -defendant Carl Civella would have testified
in Thomas' favor in a separate trial and because his defense was so inconsistent
with and antagonistic to that of his co -defendants.
For the reasons
discussed below, we hold that the district court did not abuse its discretion in
refusing to grant appellants' motions for severance.
As a preliminary
matter we reject appellants'
[**56] general
allegation of misjoinder.
There is a strong
policy in favor of joint trial where the defendants are "alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b).
However, severance of charges or defendants properly joined is governed by Fed.
R. Crim. P. 14. As noted in
United
States v. Jackson, 549 F.2d at 523 (citations omitted).
it is the
general rule that persons charged in a conspiracy should be tried together,
particularly where proof of the charges against the defendants is based upon
the same evidence and acts. Severance will be allowed upon a showing of real
prejudice to an individual defendant. However, the motion to sever is
addressed to the discretion of the trial court, and a denial of severance is
not grounds for reversal unless clear prejudice and an abuse of discretion are
shown.
Thus, "an abuse of discretion in refusing
severance is not alone enough to justify reversal and a new trial. There must
also be prejudice. That is, there must be some appreciable chance that [the]
defendants would not have been convicted had the separate trial
[**57] they wanted been granted."
United
States v. Bostic, 713 F.2d 401, 403 (8th Cir. 1983). We find no
abuse of discretion in the district court's refusal to grant appellants' motions
for severance on the grounds of any "spillover effect."
The poor
reputation of one's co -defendant or co -defendants alone is not grounds for
severance from joint trial.
See, e.g., United
States v. Knowles, 572 F.2d 267, 270 (10th Cir. 1978). Moreover,
appellants have not carried the "heavy burden" of showing real prejudice.
See, e.g., United
States v. Graham, 548 F.2d 1302, 1311 (8th Cir. 1977). In the context
of an allegation that incriminating
[*920]
evidence presented in a joint trial has "spilled over" from one or more
defendants to another, we must consider whether the jurors were able to follow
the trial court's cautionary instructions and compartmentalize the evidence
against each defendant on each count individually. In the present case the jury
verdicts strongly indicate that the jury followed the cautionary instructions
given by the district court, compartmentalized the evidence and was not confused
by the evidence because the jury acquitted one defendant and found appellants
[**58] guilty of some charges but acquitted on
other charges.
See, e.g., United
States v. Zicree, 605 F.2d 1381, 1389 (5th Cir. 1979) (citing
Tillman
v. United States, 406 F.2d 930, 935-36 (5th Cir.),
vacated in part
on other grounds,
395
U.S. 830, 23 L. Ed. 2d 742, 89 S. Ct. 2143 (1969)), cert. denied,
445
U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980); United
States v. Boyd, 595 F.2d 120, l25 (3d Cir. 1978).
Thomas argues
individually that the district court abused its discretion in denying his motion
for severance and that he has shown real prejudice because if he had been tried
separately, his co -defendant Carl Civella would have exculpated him.
"It
is not reversible
error to deny severance requested on the ground that a defendant wants to call a
co -defendant as a witness, unless the defendant shows that the co -defendant is
likely to testify at a separate trial and the testimony would exculpate him [or
her]."
United
States v. Starr, 584 F.2d 235, 239 (8th Cir. 1978), cert.
denied,
439
U.S. 1115, 59 L. Ed. 2d 73, 99 S. Ct. 1019 (1979). Here, counsel for Carl
Civella stated
in camera that Carl Civella had affirmatively
represented that he would
[**59] testify on
behalf of Thomas if the trials were severed. That is a sufficient showing that
the co -defendant that Thomas wanted to call as a witness would have been likely
to testify at a separate trial. "It was not necessary for [Thomas] to prove to a
certainty that [Carl Civella] would be available and willing to testify in a
separate trial."
Id. With respect to the second requirement,
Thomas argues that the district court improperly required him to show that the
co -defendants testimony would have been "completely exculpatory." The term
"completely exculpatory" would seem to require the defendant to show that the co
-defendants testimony would conclusively establish the defendant's innocence. We
agree that such a requirement would be too demanding. However, in view of the
strong policies favoring joint trials where permissible, the defendant must show
that the co -defendants testimony would be substantially exculpatory. The
defendant must show that the co -defendants testimony would do more than "merely
tend to contradict a few details of the government's case against [him or her]."
United
States v. Garcia, 647 F.2d 794, 796 (8th Cir.) (citing
United
States v. Abraham [**60] , 541 F.2d 1234, 1240 (7th Cir.
1976), cert. denied,
429
U.S. 1102, 97 S. Ct. 1128, 51 L. Ed. 2d 552 (1977)), cert. denied,
454
U.S. 970, 102 S. Ct. 516, 70 L. Ed. 2d 387 (1981). We believe,
however, that the improper use of a "completely exculpatory" standard was
harmless error under the circumstances. We can discern the substance and
exculpatory effect of the desired testimony from the record. During the
in
camera proceeding counsel for Carl Civella stated that Carl Civella's
testimony would have contradicted that of Agosto and supported Thomas' defense
that Thomas was involved in legitimate investigations of casino finances and
Thomas' characterization of the conversations on the Marlo Tape. Even assuming
that the proffered testimony, if credited, would have supported Thomas' defense
theory, we note, however, that the proffered testimony would have been subject
to substantial damaging impeachment, particularly from the Marlo Tape itself and
other government evidence.
See United
States v. Finkelstein, 526 F.2d 517, 524 (2d Cir. 1975), cert.
denied,
425
U.S. 960, 48 L. Ed. 2d 205, 96 S. Ct. 1742 (1976). We have carefully
reviewed the record and are convinced that,
[**61] although the question is a close one, the district
court did not abuse its discretion in refusing to
[*921] grant Thomas' motion for severance on the ground
that he wanted to call a co -defendant as a witness.
Thomas also argues
that because his defense theory was so inconsistent with and antagonistic to
those of his co -defendants he was unable to testify in his own defense in a
joint trial and the district court abused its discretion in refusing to grant
his motion for severance on this ground. According to a proffer made
in
camera by Thomas' counsel, Thomas' testimony would have incriminated his
co-defendants and as a result his life would have been endangered had he
testified.
While there are
situations in which inconsistent defenses may support a motion for severance,
the doctrine is a limited one. . . . The governing standard requires the
moving defendant to show that "the defendants present conflicting and
irreconcilable defenses and there is a danger that the jury will unjustifiably
infer that this conflict alone demonstrates that both are
guilty."
United
States v. Haldeman, 181 U.S. App. D.C. 245, 559 F.2d 31, 71 (1976)
(banc) (citation omitted),
[**62] cert.
denied,
431
U.S. 933, 53 L. Ed. 2d 250, 97 S. Ct. 2641 (1977). We hold that the district
court did not abuse its discretion in refusing to grant Thomas' motion for
severance on the ground of inconsistent and antagonistic defenses. The conflict
between Thomas' defense and those of his co-defendants simply did not reach the
level from which the jury would infer from the conflict alone that both Thomas
and his co-defendants were guilty. Thomas does not argue that his co -defendants
defenses would inescapably inculpate him; rather, Thomas' defense was
inconsistent and antagonistic with those of his co-defendants only because his
defense was that he knew nothing about the skimming but that his co-defendants
did. "The
mere presence of
hostility among defendants or the desire of one to exculpate himself [or
herself] by inculpating another have both been held to be insufficient grounds
to require separate trials."
United
States v. Barber, 442 F.2d 517, 530 (3d Cir.),
cert. denied,
404
U.S. 958, 30 L. Ed. 2d 275, 92 S. Ct. 327 (1971). "Thus antagonistic
defenses do not require the granting of severance even when one defendant takes
the stand and blames his [or her] co-defendant
[**63] for the crime."
United
States v. McPartlin, 595 F.2d 1321, 1334 (7th Cir.) (citations
omitted),
cert. denied,
444
U.S. 833, 100 S. Ct. 65, 62 L. Ed. 2d 43 (1979). Thomas also argues
that his trial should have been severed because he would have been able to
testify in his own defense in a separate trial. Thomas argues that he could not
testify in the joint trial and inculpate his co-defendants without fear for his
life. While we in no way depreciate Thomas' fears for his personal safety, we
find no abuse of discretion in the district court's denial of severance.
According to an
in camera statement of the government, to the use of
which Thomas does not object, the risk to Thomas' life was believed to be
relatively constant whether he decided to testify in his own defense in the
joint trial or in a separate trial.
Speedy Trial
Chiavola was indicted in November 1981 and was brought to trial on May
31, 1983, eighteen months after the indictment. The case was originally set for
trial on December 28, 1981. In the interim from December 1981 to May 1983, the
district court granted a number of motions for continuance filed by Chiavola's
co-defendants.
Chiavola argues
[**64]
that the district court's denial of his motions for immediate trial and his
motions to dismiss violated his right to a speedy trial, guaranteed by the sixth
amendment, the Speedy Trial Act,
18
U.S.C. § 3161 et seq. (1982), and Fed. R. Crim. P. 48(b). The
district court denied the motions for immediate trial and made findings pursuant
to § 3161(h) (8) (A).
The sixth
amendment guarantees that "in all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial." "Any inquiry into a speedy trial claim
necessitates a functional analysis
[*922] of
the right in the particular context of the case: 'The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not preclude the rights
of public justice.'"
Barker
v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)
(citations omitted). The Supreme Court has identified four factors which courts
should consider in determining whether a particular defendant has been deprived
of this right: the length of the delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to
[**65] the defendant.
Id.
at 530. We consider first the reason for the eighteen-month delay
between the indictment and trial. The district court continued the case at the
request of Chiavola's co-defendants and ordered the parties to submit a monthly
status report on their discovery activities. Extensive discovery, which began in
November 1981, continued throughout 1982. On December 3, 1982, the district
court granted the motion of co-defendant Nick Civella for a continuance from
February 7, 1983, to April 11, l983, in part because of a scheduling conflict of
the lead defense counsel on the pretrial motions. On March 10, 1983, the
district court again continued the case to May 16, 1983, on the motion of all
the defendants except Chiavola in order to accommodate pretrial motions and a
"more orderly trial preparation." On May 10, 1983, the case was continued to May
31, 1983, in order to obtain stipulations.
We next consider what
prejudice, if any, resulted to Chiavola as a result of the eighteen-month delay.
"Prejudice,
of course, should
be assessed in light of the interests of defendants which the speedy trial right
was designed to protect . . . [1] to prevent oppressive pretrial
[**66] incarceration; [2] to minimize anxiety and concern
of the accused; and [3] to limit the possibility that the defense will be
impaired."
Id.
at 532. See United
States v. MacDonald, 456 U.S. 1, 8, 71 L. Ed. 2d 696, 102 S. Ct. 1497
(1982). Chiavola argues that he was prejudiced by the "anxiety of waiting 18
months for a trial . . . [and the] constraints on his liberty stemming from bond
restrictions." Chiavola does not claim that he was hampered in his defense by
this delay.
We hold that Chiavola's sixth amendment right to a speedy
trial was not violated by the eighteen-month delay. The district court granted
the continuances at the request of Chiavola's co -defendants, the continuances
were necessary to adequate preparation for trial and reasonable considering the
complexity of the case, and Chiavola was not hampered in his defense by the
delay. Any prejudice to Chiavola resulting from the denial of his request for a
new trial is outweighed by the public interest in bringing this complex case to
trial in an orderly fashion.
Chiavola also asserts that the delay
violated the Speedy Trial Act. The Act states in relevant part:
The trial of a
defendant charged in [**67] an information or
indictment with the commission of an offense shall commence within seventy
days from the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before a judicial
officer of the court in which such charge is pending, whichever date last
occurs. . . .
. . . .
The following periods of delay shall be
excluded in computing the time . . . within which the trial of any such
offense must commence:
. . . .
(7) A reasonable period of delay when the
defendant is joined for trial with a co-defendant as to whom the time for
trial has not run and no motion for severance has been granted.
(8)(A) Any period of delay resulting from a continuance granted by
any judge on his [or her] own motion or at the request of the defendant or
his [or her] counsel . . . if the judge granted such continuance on the
basis of his [or her] findings that the ends served by taking such action
outweigh the best [*923] interest of the
public and the defendant in a speedy trial.
18
U.S.C. § 3161(c) (1), (h) (7)-(8)(A). We hold that the district court did
not abuse its discretion in denying Chiavola's motion
[**68] for speedy trial as provided by the Speedy Trial
Act. The delay was attributable to the pretrial motions of Chiavola's
co-defendants and therefore is excluded by the Speedy Trial Act from
computation.
E.g., United
States v. Campbell, 706 F.2d 1138, 1141 (11th Cir. 1983); United
States v. Stafford, 697 F.2d 1368, 1372 (11th Cir. 1983). There was no
deliberate procrastination or negligent inaction on the part of the government.
See, e.g., United
States v. Lane, 561 F.2d 1075, 1077-78 (2d Cir. 1977). Chiavola
next argues that the district court abused its discretion in denying the motion
to dismiss for want of prosecution under
Fed. R. Crim. P.
48(b). This rule imposes a more stringent standard than the sixth amendment,
United
States v. DeLeo, 422 F.2d 487, 495 (1st Cir.),
cert. denied,
397
U.S. 1037, 25 L. Ed. 2d 648, 90 S. Ct. 1355 (1970), and permits dismissal
even though there has been no constitutional violation.
E.g., United
States v. Carlson, 697 F.2d 231, 236 (8th Cir. 1983). "Dismissal under
this rule is discretionary and is governed by the same general considerations as
the Sixth Amendment."
Id., citing United
States v. Crow Dog, 532 F.2d 1182, [**69] 1194 (8th Cir.
1976), cert. denied,
430
U.S. 929, 97 S. Ct. 1547, 51 L. Ed. 2d 772 (1977); see United
States v. Tantalo, 680 F.2d 903, 909 (2d Cir. 1982). We hold that the
district court did not abuse its discretion in denying the motion to dismiss for
want of prosecution. The delay was the result of the need of the prosecution and
defense to prepare for the trial of very complicated charges. There was no
purposeful delay by the government.
Sufficiency of the
Evidence Moretina Moretina was convicted of
conspiracy and three counts of interstate transportation of stolen money in
excess of $5,000 or aiding or abetting therein. Moretina argues that there was
no evidence of any conduct engaged in by him, which, independent of the co
-conspirator testimony, established that he became a member of the conspiracy
and knowingly agreed to accomplish the alleged conspiratorial goals. Moretina
further argues that there was insufficient nonhearsay evidence connecting him to
the conspiracy so as to render co -conspirator statements admissible against
him. Moretina argues that the references to his contact with the other
defendants, his presence or the presence of his automobile
[**70] at certain places establish bare association only.
Moretina also argues that it is significant that he was not present at the Marlo
meeting attended by a number of the defendants and at which casino skimming
techniques were discussed.
"An
out-of-court
declaration of a co -conspirator is admissible against a defendant if the
government demonstrates (1) that a conspiracy existed; (2) that the defendant
and the declarant were members of the conspiracy; and (3) that the declaration
was made during the course and in furtherance of the conspiracy."
United
States v. Bell, 573 F.2d at 1043. The district court must make a
preliminary determination that the independent evidence proves by a
preponderance that the defendant was involved in a conspiracy and that the
out-of-court statement was made during the course and in furtherance of the
conspiracy.
Id.
at 1043-44. The proof may be "totally circumstantial,"
United
States v. Terry, 702 F.2d 299, 320 (2d Cir.),
cert. denied,
461
U.S. 931, 77 L. Ed. 2d 304, 103 S. Ct. 2095 (1983) (citations omitted), and
"the court must view the evidence as a whole rather than consider individual
items in isolation."
Id. (citations omitted).
[**71] We hold that the government's independent
evidence considered as a whole proved by a preponderance that a conspiracy
existed and that Moretina was one of the conspirators. Agosto's testimony, which
was corroborated by the Marlo tape, established the existence of a conspiracy.
The government introduced the nonhearsay evidence that Moretina was a member of
[*924] the conspiracy. Agosto testified that
DeLuna introduced Moretina to Agosto as his "associate" in 1975, that Moretina
was frequently present when DeLuna picked up Agosto at the Kansas City airport
and that the three of them would discuss Agosto's progress in infiltrating and
obtaining control of the Tropicana and the "skimming operation." Agosto also
spoke to Moretina by phone when DeLuna was unavailable and asked Moretina to
relay messages concerning the Tropicana to DeLuna. The FBI agents also observed
Moretina entering and leaving a Kansas City hotel where the co -conspirators
met; observed DeLuna or DeLuna's car at Moretina's residence; on September 7,
1978, observed Tamburello, Nick Civella, and DeLuna talking together; and on
February 9, 1979, observed Moretina driving his car, with DeLuna as a passenger,
in the
[**72] vicinity of Caruso's office, where
his car was later seen parked, and observed DeLuna and Moretina later driving
away together. Tapes also revealed Moretina and DeLuna discussing possible
meetings; some of these tapes were secretive in tone.
In reviewing a
denial of a motion for a judgment of acquittal, we must view the evidence in the
light most favorable to the government and must give the government the benefit
of all reasonable inferences that may logically be drawn from the evidence.
United
States v. Smith, 680 F.2d 255, 259 (1st Cir. 1982), cert.
denied,
459
U.S. 1110, 74 L. Ed. 2d 960, 103 S. Ct. 738 (1983); United
States v. Anziano, 606 F.2d 242, 244 (8th Cir. 1979). "A motion for
acquittal should be granted only where 'the evidence viewed in the light most
favorable to the Government, is such that a reasonably minded jury
must
have a reasonable doubt as to the existence of any of the essential elements of
the crime charged.'"
United
States v. White, 562 F.2d 587, 589 (8th Cir. 1977) (per curiam)
(citations omitted; emphasis in original).
"Once
the existence of
a conspiracy is established, evidence establishing beyond a reasonable doubt a
connection
[**73] of a defendant with the
conspiracy, even though the connection is slight, is sufficient to convict him
of knowing participation in the conspiracy."
United
States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977). A defendant's
participation in a conspiracy must be established with proof that the defendant
knowingly contributed efforts in furtherance of it.
United
States v. Brown, 584 F.2d 252, 262 (8th Cir. 1978), cert.
denied,
440
U.S. 910, 99 S. Ct. 1220, 59 L. Ed. 2d 458 (1979). We hold that the
evidence was sufficient for a jury to infer that Moretina had a "slight
connection" to the conspiracy and transported stolen money in interstate
commerce. In addition to the nonhearsay evidence discussed above, the government
introduced the following hearsay evidence of Moretina's participation in the
conspiracy. Agosto testified that both DeLuna and Caruso told him that
Moretina's role was to pick up skim money when Caruso arrived in Kansas City and
to deliver it to DeLuna for distribution. DeLuna also told Agosto to talk to
Moretina "about anything without reservation." DeLuna's code name "CP" was shown
to be that of Moretina. Additionally, DeLuna's notes reflect that "CP"
(Moretina)
[**74] received $5,000 from moneys
delivered on November 8, 1978, by Caruso. Additionally, notes (Exs. 64 and 64b)
seized from Carl Civella's residence in tandem show that "Charlie" (Moretina)
received " 10%" of the "skimmed" money, ranking just below Nick Civella, Carl
Civella and Carl DeLuna.
Chiavola Chiavola was
convicted of conspiracy and one count of interstate transportation of stolen
property. Chiavola argues that there was no evidence that he participated in the
conspiracy, had any knowledge of the skimming activity, participated in the
actual movement of $ 17,500 from Kansas City to Chicago, Illinois, or performed
any acts which aided or abetted the transportation of stolen property.
The existence of the conspiracy was established by independent,
nonhearsay evidence. Agosto testified that a conspiracy existed between him,
Nick Civella, and other
[*925] defendants. Once
the conspiracy was established, co -conspirator statements were admissible
against all the defendants. Agosto testified that a portion of the skim money
was going to Chicago to some of DeLuna's associates. These transfers of money
were documented by DeLuna in coded notes, which contained code names
[**75] for defendants and other conspirators. Chiavola
was called "Stomp" and was referred to in the notes as "Stmp", "Stp", and "Stm."
The notes indicate that DeLuna met with "Stmp to work out details to start
meeting stmp for papers [money] in the future" and that on September 8, 1978,
Nick Civella called ("Stm") and told him to hold "35" ($35,000) for Aiuppa.
An appellate court reviewing the denial of a motion for a judgment of
acquittal must view the evidence in a light most favorable to the government.
United
States v. Anziano, 606 F.2d at 244. "To
establish aiding
and abetting the government is required to show that the defendant associated
himself with the unlawful venture, that he participated in it as something he
wished to bring about, and that he sought by his action to make it succeed."
Id.
at 244-45 (citations omitted). "Some affirmative participation [by the
defendant] which at least encourages the perpetrator [must be shown]."
Id.
at 245. We hold that there was sufficient evidence from which the jury could
have inferred that Chiavola was a member of the conspiracy and transported
stolen money in interstate commerce.
Accordingly, the judgments of the
district
[**76] court are affirmed. The
government's motion to strike portions of appellant Chiavola's Reply Brief is
denied.
APPENDIX
Nev. Rev. Stat. §
463.130,.160,.170,.200,.335,.360,.530 (in effect on January 1, 1975):
463.130
1. It is hereby declared to be the policy of this state that all
establishments where gambling games are conducted or operated or where gambling
devices are operated and manufacturers, sellers and distributors of certain
gambling devices and equipment in the State of Nevada shall be licensed and
controlled so as to protect the public health, safety, morals, good order and
general welfare of the inhabitants of the State of Nevada, and to preserve the
competitive economy and the policies of free competition of the State of Nevada.
2. Any license issued pursuant to this chapter shall be deemed to be a
revocable privilege and no holder thereof shall be deemed to have acquired any
vested rights therein or thereunder.
463.160
1. It is unlawful for any person, either as owner, lessee or employee,
whether for hire or not, either solely or in conjunction with others:
(a) To deal, operate, carry on, conduct, maintain or expose for play in
the State
[**77] of Nevada any game or slot
machine as defined in this chapter, or to operate, carry on, conduct or maintain
any horse-race book or sports pool; or
(b) To provide or maintain any
information service the primary purpose of which is to aid the placing or making
of wagers on events of any kind; or
(c) To receive, directly or
indirectly, any compensation or reward or any percentage or share of the money
or property played, for keeping, running or carrying on any game, slot machine,
horse-race book or sports pool, without having first procured, and thereafter
maintaining in full force and effect, all federal, state, county and municipal
gaming licenses as required by statute or ordinance or by the governing board of
any unincorporated city or town.
2. It is unlawful for any person to
lend, let, lease or otherwise deliver or furnish any equipment of any gambling
game, including any slot machine, for any interest or any percentage or share of
the money or property played, under guise of any agreement whatever, without
having first procured a state gaming license for the same.
[*926] 3. It is unlawful for any person to lend, let,
lease or otherwise deliver or furnish, except
[**78] by a bona fide sale, any slot machine under guise
of any agreement whatever whereby any consideration whatever is paid or is
payable for the right to possess or use such slot machine, whether such
consideration is measured by a percentage of the revenue derived from such
machine or by a fixed fee or otherwise, without having first procured a state
gaming license for the same.
4. It is unlawful for any person to furnish
services or property, real or personal, on a contract, lease or license basis,
pursuant to which such person receives payments based on earnings or profits or
otherwise from any gambling game, including any slot machine, without having
first procured a state gaming license.
5. Any person who shall knowingly
permit any gambling game, slot machine or device to be conducted, operated,
dealt or carried on in any house or building or other premises owned by him, in
whole or in part, except by a person who is licensed hereunder, or his employee,
shall be guilty of a gross misdemeanor.
6. Any licensee who puts
additional games or slot machines into play or displays such games or slot
machines in a public area without authority of the commission to do so is
subject
[**79] to the penalties provided in NRS
463.310.
7. The provisions of subsections 2, 3 and 4 do not apply to any
person:
(a) Whose payments are a fixed sum determined in advance on a
bona fide basis for the furnishing of services or property other than a slot
machine.
(b) Who furnishes services or property under a bona fide rental
agreement or security agreement for gaming equipment.
(c) Which is a
wholly owned subsidiary of:
(1) A corporation holding a state gaming
license; or
(2) A holding company or intermediary company, or publicly
traded corporation, which has registered pursuant to NRS 463.585 or 463.635 and
which has fully complied with the laws applicable to it as such. Receipts or
rentals or charges for real property, personal property or services do not lose
their character as payments of a fixed sum or as bona fide because of contract,
lease or license provisions for adjustments in charges, rentals or fees on
account of changes in taxes or assessments, cost-of-living index escalations,
expansions or improvement of facilities, or changes in services supplied; and
receipts of percentage rentals or percentage charges between a corporate
licensee and the entities enumerated
[**80] in
paragraph (c) are permitted under this subsection.
8. The commission may
determine the suitability, or may require the licensing, of any person who
furnishes services or property to a state gaming licensee under any arrangement
pursuant to which such person receives payments based on earnings, profits or
receipts from gaming. The commission may require any such person to comply with
the requirements of this chapter and with the regulations of the commission. If
the commission determines that any such person is unsuitable, it may require
such arrangement to be terminated.
463.170
1. Any person who the commission shall determine is a suitable person to
receive a license under the provisions of this chapter, having due consideration
for the proper protection of the public health, safety, morals, good order and
general welfare of the inhabitants of the State of Nevada, may be issued a state
gaming license. The burden of proving his qualification to receive or hold any
license hereunder shall be at all times on the applicant or licensee.
2.
The commission may in its discretion grant a license to a corporation which has
complied with the provisions of NRS 463.490 to
[**81] 463.530, inclusive.
3. No limited
partnership, business trust or organization or other association of a
quasi-corporate character shall be eligible to receive or hold any license under
this chapter unless all persons having any
[*927] direct or indirect interest therein of any nature
whatsoever, whether financial, administrative, policymaking or supervisory, are
individually qualified to be licensed under the provisions of this chapter.
4. The commission may, by regulation, limit the number of persons who
may be financially interested and the nature of such interest in any corporation
or other organization or association licensed under this chapter, and establish
such other qualifications for licenses as they may, in their uncontrolled
discretion, deem to be in the public interest.
463.200
1. Application for a state gaming license shall be made to the board on
forms furnished by the board and in accordance with the regulations of the
commission.
2. The application shall include:
(a) The name of
the proposed licensee.
(b) The location of his place or places of
business.
(c) The gambling games, gaming device or slot machines to be
operated.
(d) The names
[**82] of all
persons directly or indirectly interested in the business and the nature of such
interest.
(e) Such other information and details as the board may
require in order to discharge its duty properly.
3. The board shall
furnish to the applicant supplemental forms, which the applicant shall complete
and file with the application. Such supplemental forms shall require, but shall
not be limited to, complete information and details with respect to the
applicant's antecedents, habits, character, criminal record, business
activities, financial affairs and business associates, covering at least a
10-year period immediately preceding the date of filing of the application.
463.335
1. As used in this section:
(a) "Gaming employee" means any
person connected directly with the operation of a nonrestricted establishment,
and includes without limitation:
(1) Boxmen;
(2) Cashiers;
(3) Dealer;
(4) Floormen;
(5) Hosts or other persons
empowered to extend credit or complimentary services;
(6) Keno runners;
(7) Keno writers;
(8) Machine mechanics;
(9) Security
personnel;
(10) Shift or pit bosses;
(11) Shills; and
(12) Supervisors or managers.
"Gaming
[**83] employee" does not include bartenders, cocktail
waitresses or other persons engaged in preparing or serving food or beverages.
(b) "Nonrestricted establishment" means any establishment except one in
which slot machines only are operated incidentally to some other primary
business of the licensee.
(c) "Temporary work permit" means a work
permit which is valid only for a period not to exceed 30 days from its date of
issue and is not renewable.
(d) "Work permit" means any card,
certificate or permit issued by the board or by a county or city licensing
authority, whether denominated as a work permit, registration card or otherwise,
authorizing the employment of the holder as a gaming employee.
2. The
legislature finds that, to protect and promote the public health, safety,
morals, good order and general welfare of the inhabitants of the State of Nevada
and to carry out the policy declared in NRS 463.130, it is necessary that the
board:
(a) Ascertain and keep itself informed of the identity, prior
activities and present location of all gaming employees in the State of Nevada;
and
(b) Maintain confidential records of such information.
[*928] 3. No person may be employed
[**84] as a gaming employee unless he is the
holder of:
(a) A valid work permit issued in accordance with the
applicable ordinances or regulations of the county or city in which his duties
are performed; or
(b) If no work permit is required by either such
county or such city, a work permit issued by the board.
4. Whenever any
person applies for the issuance or renewal of a work permit, the county or city
officer or employee to whom such application is made shall within 24 hours mail
or deliver a copy thereof to the board, and may at the discretion of the county
or city licensing authority issue a temporary work permit. If within 30 days
after the mailing or delivery of the copy of the application, the board has not
notified the county or city licensing authority of any objection, such authority
may in its discretion issue or deny a work permit to the applicant.
5.
If the board within the 30-day period notifies the county or city licensing
authority that the board objects to the granting of a work permit to the
applicant, such authority shall deny the work permit and shall immediately
revoke and repossess any temporary work permit which it may have issued.
6. Application for a
[**85] work permit,
valid wherever a work permit is not required by any county or city licensing
authority, may be made to the board, and may be granted or denied for any cause
deemed reasonable by the board.
7. Any person whose application for a
work permit has been denied because of an objection by the board or whose
application for a work permit has been denied by the board may apply to the
board for a hearing. At such hearing, the board or any designated member of the
board or an examiner appointed by the board shall take any testimony deemed
necessary. After such hearing the board shall review the testimony taken and any
other evidence in its files, and shall within 30 days from the date of the
hearing announce its decision sustaining or reversing the denial of the work
permit or the objection to issuance of a work permit. Such decision may be made
upon any ground deemed reasonable by the board, and shall be conclusive unless
reversed as provided in subsection 8.
8. Any applicant aggrieved by the
decision of the board may, within 15 days after the announcement of the
decision, apply in writing to the commission for review of the decision. Such
review shall be limited to the record,
[**86]
any testimony submitted and the files in the case. The commission may sustain or
reverse the board's decision. The decision of the commission shall be conclusive
on all parties.
9. All records acquired or compiled by the board or
commission relating to any application made pursuant to this section are
confidential and no part thereof may be disclosed except in the proper
administration of this chapter or to an authorized law enforcement agency. All
lists of persons to whom work permits have been issued or denied and all records
of the names or identity of persons engaged in the gaming industry in this state
are confidential and shall not be disclosed except in the proper administration
of this chapter or to an authorized law enforcement agency.
463.360
1. Conviction by a court of competent jurisdiction of the violation of
any of the provisions of this chapter may act as an immediate revocation of any
and all licenses which may have been issued to the violator, and, in addition,
the court may, upon application of the district attorney of the county or of the
commission, order that no new or additional license under this chapter be issued
to such violator, or be issued
[**87] to any
person for the room or premises in which such violation occurred, for a period
of 1 year from the date of such revocation.
2. Any person who willfully
fails to report, pay or truthfully account for and pay over any license fee or
tax imposed by the provisions of this chapter, or willfully attempts in any
manner to evade or defeat any such license fee, tax or payment thereof
[*929] shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 6 years, or by a fine of not more
than $5,000, or by both fine and imprisonment.
3. The violation of any
of the provisions of this chapter, the penalty for which is not herein
specifically fixed, is a gross misdemeanor.
463.530
All officers and directors of the corporation which holds or applies for
a state gaming license must be licensed individually, according to the
provisions of this chapter, and if, in the judgment of the commission, the
public interest will be served by requiring any or all of the corporation's
individual stockholders, lenders, holders of evidence of indebtedness,
underwriters, key executives, agents or employees to be licensed, the
corporation shall require such
[**88] persons to
apply for a license in accordance with the laws and requirements in effect at
the time the commission requires such licensing.
Nev. Rev. Stat. §
463.130,.160,.170,.200,.335,.360,.530 (in effect from March 27, 1975 until July
1, 1977):
463.130 1. It is hereby declared to
be the policy of this state that all establishments where gambling games are
conducted or operated or where gambling devices are operated and manufacturers,
sellers and distributors of certain gambling devices and equipment in the State
of Nevada shall be licensed and controlled so as to protect the public health,
safety, morals, good order and general welfare of the inhabitants of the State
of Nevada, and to preserve the competitive economy and the policies of free
competition of the State of Nevada.
2. Any license issued pursuant to
this chapter shall be deemed to be a revocable privilege and no holder thereof
shall be deemed to have acquired any vested rights therein or thereunder.
463.160 1. It is unlawful for any person,
either as owner, lessee or employee, whether for hire or not, either solely or
in conjunction with others:
(a) To deal, operate, carry on, conduct,
[**89] maintain or expose for play in the State
of Nevada any game or slot machine as defined in this chapter, or to operate,
carry on, conduct or maintain any horse-race book or sports pool; or
(b)
To provide or maintain any information service the primary purpose of which is
to aid the placing or making of wagers on events of any kind; or
(c) To
receive, directly or indirectly, any compensation or reward or any percentage or
share of the money or property played, for keeping, running or carrying on any
game, slot machine, horse-race book or sports pool,
without having first
procured, and thereafter maintaining in full force and effect, all federal,
state, county and municipal gaming licenses as required by statute or ordinance
or by the governing board of any unincorporated city or town.
2. It is
unlawful for any person to lend, let, lease or otherwise deliver or furnish any
equipment of any gambling game, including any slot machine, for any interest or
any percentage or share of the money or property played, under guise of any
agreement whatever, without having first procured a state gaming license for the
same.
3. It is unlawful for any person to lend, let, lease or otherwise
[**90] deliver or furnish, except by a bona fide
sale, any slot machine under guise of any agreement whatever whereby any
consideration whatever is paid or is payable for the right to possess or use
such slot machine, whether such consideration is measured by a percentage of the
revenue derived from such machine or by a fixed fee or otherwise, without having
first procured a state gaming license for the same.
4. It is unlawful
for any person to furnish services or property, real or personal, on a contract,
lease or license basis, pursuant to which such person receives payments based on
earnings or profits or otherwise from any gambling game, including
[*930] any slot machine, without having first procured a
state gaming license.
5. Any person who shall knowingly permit any
gambling game, slot machine or device to be conducted, operated, dealt or
carried on in any house or building or other premises owned by him, in whole or
in part, except by a person who is licensed hereunder, or his employee, shall be
guilty of a gross misdemeanor.
6. Any licensee who puts additional games
or slot machines into play or displays such games or slot machines in a public
area without authority
[**91] of the commission
to do so is subject to the penalties provided [sic] in NRS 463.310.
7.
The provisions of subsections 2, 3 and 4 do not apply to any person:
(a)
Whose payments are a fixed sum determined in advance on a bona fide basis for
the furnishing of services or property other than a slot machine.
(b)
Who furnishes services or property under a bona fide rental agreement or
security agreement for gaming equipment.
(c) Which is a wholly owned
subsidiary of:
(1) A corporation holding a state gaming license; or
(2) A holding company or intermediary company, or publicly traded
corporation, which has registered pursuant to NRS 463.585 or 463.635 and which
has fully complied with the laws applicable to it as such. Receipts or rentals
or charges for real property, personal property or services do not lose their
character as payments of a fixed sum or as bona fide because of contract, lease
or license provisions for adjustments in charges, rentals or fees on account of
changes in taxes or assessments, cost-of-living index escalations, expansions or
improvement of facilities, or changes in services supplied; and receipts of
percentage rentals or percentage charges between
[**92] a corporate licensee and the entities enumerated
in paragraph (c) are permitted under this subsection.
8. The commission
may determine the suitability, or may require the licensing, of any person who
furnishes services or property to a state gaming licensee under any arrangement
pursuant to which such person receives payments based on earnings, profits or
receipts from gaming. The commission may require any such person to comply with
the requirements of this chapter and with the regulations of the commission. If
the commission determines that any such person is unsuitable, it may require
such arrangement to be terminated.
9. If the premises of a licensed
gaming establishment are directly or indirectly owned or under the control of
the licensee therein, or of any person controlling, controlled by, or under
common control with such licensee, the commission may, upon recommendation of
the board, require the licensee to present the application of any business or
person doing business on the premises for a determination of suitability to be
associated with a gaming enterprise in accordance with the procedures set forth
in this chapter. If the commission determines that such business
[**93] or person is unsuitable to be associated with a
gaming enterprise, such association shall be terminated. Any agreement which
entitles a business other than gaming to be conducted on such premises is
subject to termination upon a finding of unsuitability of the business or of any
person associated therewith. Every such agreement shall be deemed to include a
provision for its termination without liability on the part of the licensee upon
a finding by the commission that the business or any person associated therewith
is unsuitable to be associated with a gaming enterprise. Failure expressly to
include such a condition in the agreement is not a defense in any action brought
pursuant to this section to terminate the agreement. If the application is not
presented to the board within 30 days following demand or the unsuitable
association is not terminated, the commission may pursue any remedy or
combination of remedies provided in this chapter.
[*931] I463.170 1. Any person
who the commission shall determine is a suitable person to receive a license
under the provisions of this chapter, having due consideration for the proper
protection of the public health, safety, morals,
[**94] good order and general welfare of the inhabitants
of the State of Nevada, may be issued a state gaming license. The burden of
proving his qualification to receive or hold any license hereunder shall be at
all times on the applicant or licensee.
2. The commission may in its
discretion grant a license to a corporation which has complied with the
provisions of NRS 463.490 to 463.530, inclusive.
3. No limited
partnership, business trust or organization or other association of a
quasi-corporate character shall be eligible to receive or hold any license under
this chapter unless all persons having any direct or indirect interest therein
of any nature whatsoever, whether financial, administrative, policymaking or
supervisory, are individually qualified to be licensed under the provisions of
this chapter.
4. The commission may, by regulation, limit the number of
persons who may be financially interested and the nature of such interest in any
corporation or other organization or association licensed under this chapter,
and establish such other qualifications for licenses as they may, in their
uncontrolled discretion, deem to be in the public interest.
463.200 1. Application
[**95] for a state gaming license or other commission
action shall be made to the board on forms furnished by the board and in
accordance with the regulations of the commission.
2. The application
for a license shall include:
(a) The name of the proposed licensee.
(b) The location of his place or places of business.
(c) The
gambling games, gaming device or slot machines to be operated.
(d) The
names of all persons directly or indirectly interested in the business and the
nature of such interest.
(e) Such other information and details as the
board may require in order to discharge its duty properly.
3. The board
shall furnish to the applicant supplemental forms, which the applicant shall
complete and file with the application. Such supplemental forms shall require,
but shall not be limited to, complete information and details with respect to
the applicant's antecedents, habits, character, criminal record, business
activities, financial affairs and business associates, covering at least a
10-year period immediately preceding the date of filing of the application.
463.335 1. As used in this section:
(a)
"Gaming employee" means any person connected directly with
[**96] the operation of a nonrestricted establishment,
and includes without limitation:
(1) Boxmen; (2) Cashiers;
(3)
Dealers;
(4) Floormen;
(5) Hosts or other persons empowered to
extend credit or complimentary services;
(6) Keno runners;
(7)
Keno writers;
(8) Machine mechanics;
(9) Security personnel;
(10) Shift or pit bosses;
(11) Shills; and
(12)
Supervisors or managers.
"Gaming employee" does not include bartenders,
cocktail waitresses or other persons engaged in preparing or serving food or
beverages.
(b) "Nonrestricted establishment" means any establishment
except one in which slot machines only are operated incidentally to some other
primary business of the licensee.
[*932] (c) "Temporary work permit" means a work permit
which is valid only for a period not to exceed 30 days from its date of issue
and is not renewable.
(d) "Work permit" means any card, certificate or
permit issued by the board or by a county or city licensing authority, whether
denominated as a work permit, registration card or otherwise, authorizing the
employment of the holder as a gaming employee.
2. The legislature finds
that, to protect and promote the public health, safety,
[**97] morals, good order and general welfare of the
inhabitants of the State of Nevada and to carry out the policy declared in NRS
463.130, it is necessary that the board:
(a) Ascertain and keep itself
informed of the identity, prior activities and present location of all gaming
employees in the State of Nevada; and
(b) Maintain confidential records
of such information.
3. No person may be employed as a gaming employee
unless he is the holder of:
(a) A valid work permit issued in accordance
with the applicable ordinances or regulations of the county or city in which his
duties are performed; or
(b) If no work permit is required by either
such county or such city, a work permit issued by the board.
4. Whenever
any person applies for the issuance or renewal of a work permit, the county or
city officer or employee to whom such application is made shall within 24 hours
mail or deliver a copy thereof to the board, and may at the discretion of the
county or city licensing authority issue a temporary work permit. If within 30
days after receipt by the board of the copy of the application, the board has
not notified the county or city licensing authority of any objection, such
authority
[**98] may in its discretion issue or
deny a work permit to the applicant. Any holder of a work permit must obtain
renewal of the permit from the issuing agency within 10 days following any
change of place of employment.
5. If the board within the 30-day period
notifies the county or city licensing authority that the board objects to the
granting of a work permit to the applicant, such authority shall deny the work
permit and shall immediately revoke and repossess any temporary work permit
which it may have issued.
6. Application for a work permit, valid
wherever a work permit is not required by any county or city licensing
authority, may be made to the board, and may be granted or denied for any cause
deemed reasonable by the board.
7. Any person whose application for a
work permit has been denied because of an objection by the board or whose
application for a work permit has been denied by the board may apply to the
board for a hearing. At such hearing, the board or any designated member of the
board or an examiner appointed by the board shall take any testimony deemed
necessary. After such hearing the board shall review the testimony taken and any
other evidence in its files,
[**99] and shall
within 30 days from the date of the hearing announce its decision sustaining or
reversing the denial of the work permit or the objection to issuance of a work
permit. Such decision may be made upon any ground deemed reasonable by the
board, and shall be conclusive unless reversed as provided in subsection 8.
8. Any applicant aggrieved by the decision of the board may, within 15
days after the announcement of the decision, apply in writing to the commission
for review of the decision. Such review shall be limited to the record, any
testimony submitted and the files in the case. The commission may sustain or
reverse the board's decision. The decision of the commission shall be subject to
judicial review pursuant to NRS 463.315.
9. All records acquired or
compiled by the board or commission relating to any application made pursuant to
this section are confidential and no part thereof may be disclosed except in the
proper administration of this chapter or to an authorized law
[*933] enforcement agency. All lists of persons to whom
work permits have been issued or denied and all records of the names or identity
of persons engaged in the gaming industry in this state
[**100] are confidential and shall not be disclosed
except in the proper administration of this chapter or to an authorized law
enforcement agency.
463.360 1. Conviction by a
court of competent jurisdiction of the violation of any of the provisions of
this chapter [sic] may act as an immediate revocation of any and all licenses
which may have been issued to the violator, and, in addition, the court may,
upon application of the district attorney of the county or of the commission,
order that no new or additional license under this chapter be issued to such
violator, or be issued to any person for the room or premises in which such
violation occurred, for a period of 1 year from the date of such revocation.
2. Any person who willfully fails to report, pay or truthfully account
for and pay over any license fee or tax imposed by the provisions of this
chapter, or willfully attempts in any manner to evade or defeat any such license
fee, tax or payment thereof shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 6 years, or by a fine of not more
than $5,000, or by both fine and imprisonment.
3. The violation of any
of the provisions of
[**101] this chapter, the
penalty for which is not herein specifically fixed, is a gross misdemeanor.
463.530 All officers and directors of the
corporation which holds or applies for a state gaming license must be licensed
individually, according to the provisions of this chapter, and if, in the
judgment of the commission, the public interest will be served by requiring any
or all of the corporation's individual stockholders, lenders, holders of
evidence of indebtedness, underwriters, key executives, agents or employees to
be licensed, the corporation shall require such persons to apply for a license
in accordance with the laws and requirements in effect at the time the
commission requires such licensing.
Nev. Rev. Stat. §
463.130,.160,.165,.170,.200,.335,.339,.360,.530 (in effect from July 1, 1977
until July 1, 1979):
463.130 1. The legislature
hereby finds, and declares to be the public policy of this state, that:
(a) The gaming industry is vitally important to the economy of the state
and the general welfare of the inhabitants.
(b) The continued growth and
success of the gaming industry is dependent upon public confidence and trust
that licensed gaming is conducted
[**102]
honestly and competitively and that the gaming industry is free from criminal
and corruptive elements.
(c) Public confidence and trust can only be
maintained by strict regulation of all persons, locations, practices,
associations and activities related to the operation of licensed gaming
establishments and the manufacture or distribution of gambling devices and
equipment.
(d) All establishments where gaming is conducted and where
gambling devices are operated, and manufacturers, sellers and distributors of
certain gambling devices and equipment in the state shall therefore be licensed,
controlled and assisted to protect the public health, safety, morals, good order
and general welfare of the inhabitants of the state and to preserve the
competitive economy and policies of free competition of the State of Nevada.
2. No applicant for a license or other affirmative commission approval
has any right to a license or the granting of the approval sought. Any license
issued or other commission approval granted pursuant to the provisions of this
chapter or chapter 464 of NRS is a revocable privilege, and no holder acquires
any vested right therein or thereunder.
463.160
1.
[**103] It is unlawful for any
person, either as owner, lessee or employee, whether for
[*934] hire or not, either solely or in conjunction with
others:
(a) To deal, operate, carry on, conduct, maintain or expose for
play in the State of Nevada any game or slot machine as defined in this chapter,
or to operate, carry on, conduct or maintain any horse-race book or sports pool;
(b) To provide or maintain any information service the primary purpose
of which is to aid the placing or making of wagers on events of any kind; or
(c) To receive, directly or indirectly, any compensation or reward or
any percentage or share of the money or property played, for keeping, running or
carrying on any game, slot machine, horse-race book or sports pool, without
having first procured, and thereafter maintaining in full force and effect, all
federal, state, county and municipal gaming licenses as required by statute or
ordinance or by the governing board of any unincorporated city or town.
2. It is unlawful for any person to lend, let, lease or otherwise
deliver or furnish any equipment of any gambling game, including any slot
machine, for any interest or any percentage or share of the money or
[**104] property played, under guise of any agreement
whatever, without having first procured a state gaming license for the same.
3. It is unlawful for any person to lend, let, lease or otherwise
deliver or furnish, except by a bona fide sale or capital lease, any slot
machine under gules of any agreement whatever whereby any consideration whatever
is paid or is payable for the right to posses by a percentage of the machine,
whether such consideration is measured by a percentage of the revenue derived
from such machine or by a fixed fee or otherwise, without having first procured
a state gaming license for the slot machine.
4. It is unlawful for any
person to furnish services or property, real or personal, on a contract, lease
or license basis, pursuant to which such person receives payments based on
earnings or profits or otherwise from any gambling game, including any slot
machine, without having first procured a state gaming license.
5. Any
person who shall knowingly permit any gambling game, slot machine or device to
be conducted, operated, dealt or carried on in any house or building or other
premises owned by him, in whole or in part, except by a person who is licensed
hereunder,
[**105] or his employee, is guilty
of a gross misdemeanor.
6. Any licensee who puts additional games or
slot machines into play or displays such games or slot machines in a public area
without authority of the commission to do so is subject to the penalties
provided in NRS 463.310.
7. The provisions of subsections 2, 3 and 4 do
not apply to any person:
(a) Whose payments are a fixed sum determined
in advance on a bona fide basis for the furnishing of services or property other
than a slot machine.
(b) Who furnishes services or property under a bona
fide rental agreement or security agreement for gaming equipment.
(c)
Which is a wholly owned subsidiary of:
(1) A corporation holding a state
gaming license; or
(2) A holding company or intermediary company, or
publicly traded corporation, which has registered pursuant to NRS 463.585 or
463.635 and which has fully complied with the laws applicable to it as such.
(d) Who is licensed as a distributor and who rents or leases any
equipment of any gambling game including any slot machine, under a bona fide
agreement where the payments are a fixed sum determined in advance and not
determined as a percentage of the revenue derived from
[**106] the equipment or slot machine.
Receipts or
rentals or charges for real property, personal property or services do not lose
their character as payments of a fixed sum or as bona fide because of contract,
lease or license provisions for adjustments in charges, rentals or fees on
account of changes in taxes or assessments,
[*935] cost-of-living index escalations, expansions or
improvement of facilities, or changes in services supplied; and receipts of
percentage rentals or percentage charges between a corporate licensee and the
entities enumerated in paragraph (c) are permitted under this subsection.
8. The commission may determine the suitability, or may require the
licensing, of any person who furnishes services or property to a state gaming
licensee under any arrangement pursuant to which such person receives payments
based on earnings, profits or receipts from gaming. The commission may require
any such person to comply with the requirements of this chapter and with the
regulations of the commission. If the commission determines that any such person
is unsuitable, it may require such arrangement to be terminated.
9. If
the premises of a licensed gaming establishment are
[**107] directly or indirectly owned or under the
control of the licensee therein, or of any person controlling, controlled by, or
under common control with such licensee, the commission may, upon recommendation
of the board, require the licensee to present the application of any business or
person doing business on the premises for a determination of suitability to be
associated with a gaming enterprise in accordance with the procedures set forth
in this chapter. If the commission determines that such business or person is
unsuitable to be associated with a gaming enterprise, such association shall be
terminated. Any agreement which entitles a business other than gaming to be
conducted on such premises is subject to termination upon a finding of
unsuitability of the business or of any person associated therewith. Every such
agreement shall be deemed to include a provision for its termination without
liability on the part of the licensee upon a finding by the commission that the
business or any person associated therewith is unsuitable to be associated with
a gaming enterprise. Failure expressly to include such a condition in the
agreement is not a defense in any action brought pursuant to
[**108] this section to terminate the agreement.
If
the application is not presented to the board within 30 days following demand or
the unsuitable association is not terminated, the commission may pursue any
remedy or combination of remedies provided in this chapter.
463.165 1. Except for persons associated with
licensed corporations and required to be licensed by NRS 463.530, each employee,
agent, guardian, personal representative, lender or holder of indebtedness of a
gaming licensee who, in the opinion of the commission, has the power to exercise
a significant influence over the licensee's operation of a gaming establishment
may be required to apply for a license.
2. A person required to be
licensed pursuant to subsection 1 shall apply for a license within 30 days after
the commission requests that he do so.
3. If an employee required to be
licensed under subsection 1:
(a) Does not apply for a license within 30
days after being requested to do so by the commission, and the commission makes
a finding of unsuitability for such reason;
(b) Is denied a license
because of a lack of good character, honesty or integrity; or
(c) Has
his license revoked by the commission,
[**109]
the gaming licensee by whom he is employed shall terminate his employment upon
notification by registered or certified mail to the licensee of such action.
4. A gaming licensee shall not pay to a person who has been terminated
pursuant to subsection 3 of this section any remuneration for any service except
for amounts due for services rendered before the date of receipt of notice of
such action by the commission. Any contract or agreement for personal services
or for the conduct of any activity at the licensed gaming establishment between
a gaming licensee and a person terminated pursuant to subsection 3 is subject to
termination. Every such agreement shall be deemed to include a provision for its
termination without liability on the part of the licensee or registered
[*936] holding company upon a finding by the commission
that the person is unsuitable to be associated with a gaming enterprise. Failure
expressly to include such a condition in the agreement is not a defense in any
action brought pursuant to this section to terminate the agreement.
5. A
gaming licensee shall not enter into any contract or agreement, except a bona
fide entertainment contract, with a person
[**110] who is found unsuitable or who is denied a
license because of lack of good character, honesty or integrity or whose license
is revoked by the commission or with any business enterprise under the control
of that person after the date of receipt of notice of such action by the
commission.
6. A gaming licensee shall not employ, except as a bona fide
entertainer, any person who is found unsuitable, who has been denied a license
because of a lack of good character, honesty or integrity or whose license is
revoked by the commission after the date of receipt of notice of such action by
the commission, without prior approval of the commission.
463.170 1. Any person who the commission
determines is qualified to receive a license or be found suitable under the
provisions of this chapter, having due consideration for the proper protection
of the health, safety, morals, good order and general welfare of the inhabitants
of the Sate [sic] of Nevada and the declared policy of this state, may be issued
a state gaming license or found suitable. The burden of proving his
qualification to receive any license or be found suitable is on the applicant.
2. An application to receive a
[**111]
license or be found suitable shall not be granted unless the commission is
satisfied that the applicant is:
(a) A person of good character, honesty
and integrity;
(b) A person whose prior activities, criminal record, if
any, reputation, habits and associations do not pose a threat to the public
interest of this state or to the effective regulation and control of gaming, or
create or enhance the dangers of unsuitable, unfair or illegal practices,
methods and activities in the conduct of gaming or the carrying on of the
business and financial arrangements incidental thereto; and
(c) In all
other respects qualified to be licensed or found suitable consistently with the
declared policy of the state.
3. A license to operate a gaming
establishment shall not be granted unless the applicant has satisfied the
commission that:
(a) He has adequate business probity, competence and
experience, in gaming or generally; and
(b) The proposed financing of
the entire operation is:
(1) Adequate for the nature of the proposed
operation; and
(2) From a suitable source.
Any lender or other
source of money or credit which the commission finds does not meet the standards
set forth in subsection
[**112] 2 may be deemed
unsuitable.
4. An application to receive a license or be found suitable
constitutes a request for a determination of the applicant's general character,
integrity, and ability to participate or engage in, or be associated with
gaming. Any written or oral statement made in the course of an official
proceeding of the board or commission by any member thereof or any witness
testifying under oath which is relevant to the purpose of the proceeding is
absolutely privileged and does not impose liability for defamation or constitute
a ground for recovery in any civil action.
5. The commission may in its
discretion grant a license to a corporation which has complied with the
provisions of NRS 463.490 to 463.530, inclusive.
6. No limited
partnership, business trust or organization or other association of a
quasi-corporate character shall be eligible to receive or hold any license under
this chapter unless all persons having any direct or indirect interest therein
of any nature whatsoever, whether financial, administrative, policymaking or
supervisory,
[*937] are individually qualified
to be licensed under the provisions of this chapter.
7. The commission
may,
[**113] by regulation, limit the number of
persons who may be financially interested and the nature of their interest in
any corporation or other organization or association licensed under this
chapter, and establish such other qualifications for licenses as they may, in
their discretion, deem to be in the public interest and consistent with the
declared policy of the state.
463.200 1.
Application for a state gaming license or other commission action shall be made
to the board on forms furnished by the board and in accordance with the
regulations of the commission.
2. The application for a license shall
include:
(a) The name of the proposed licensee.
(b) The location
of his place or places of business.
(c) The gambling games, gaming
device or slot machines to be operated.
(d) The names of all persons
directly or indirectly interested in the business and the nature of such
interest.
(e) Such other information and details as the board may
require in order to discharge its duty properly.
3. The board shall
furnish to the applicant supplemental forms, which the applicant shall complete
and file with the application. Such supplemental forms shall require, but shall
not
[**114] be limited to, complete information
and details with respect to the applicant's antecedents, habits, character,
criminal record, business activities, financial affairs and business associates,
covering at least a 10-year period immediately preceding the date of filing of
the application.
463.335 1. As used in this
section:
(a) "Gaming employee" means any person connected directly with
the operation of a nonrestricted establishment, and includes without limitation:
(1) Boxmen;
(2) Cashiers;
(3) Dealers;
(4)
Floormen;
(5) Hosts or other persons empowered to extend credit or
complimentary services;
(6) Keno runners;
(7) Keno writers;
(8) Machine mechanics;
(9) Security personnel;
(10)
Shift or pit bosses;
(11) Shills; and
(12) Supervisors or
managers.
"Gaming employee" does not include bartenders, cocktail waitresses
or other persons engaged in preparing or serving food or beverages.
(b)
"Nonrestricted establishment" means any establishment except one in which slot
machines only are operated incidentally to some other primary business of the
licensee.
(c) "Temporary work permit" means a work permit which is valid
only for a period not to exceed
[**115] 30 days
from its date of issue and is not renewable.
(d) "Work permit" means any
card, certificate or permit issued by the board or by a county or city licensing
authority, whether denominated as a work permit, registration card or otherwise,
authorizing the employment of the holder as a gaming employee. A document issued
by any authority for any employment other than gaming is not a valid work permit
for the purposes of this chapter.
2. The legislature finds that, to
protect and promote the health, safety, morals, good order and general welfare
of the inhabitants of the State of Nevada and to carry out the policy declared
in NRS 463.130, it is necessary that the board:
(a) Ascertain and keep
itself informed of the identity, prior activities and present location of all
gaming employees in the State of Nevada; and
[*938] (b) Maintain confidential records of such
information.
3. No person may be employed as a gaming employee unless he
is the holder of:
(a) A valid work permit issued in accordance with the
applicable ordinances or regulations of the county or city in which his duties
are performed and the provisions of this chapter; or
(b) If no work
permit is required
[**116] by either the county
or the city, a work permit issued by the board.
A work permit issued to a
gaming employee must have clearly imprinted thereon a statement that it is valid
for gaming purposes only.
4. Whenever any person applies for the
issuance or renewal of a work permit, the county or city officer or employee to
whom the application is made shall within 24 hours mail or deliver a copy
thereof to the board, and may at the discretion of the county or city licensing
authority issue a temporary work permit. If within 30 days after receipt by the
board of the copy of the application, the board has not notified the county or
city licensing authority of any objection, the authority may in its discretion
issue, renew or deny a work permit to the applicant. Any holder of a work permit
must obtain renewal of the permit from the issuing agency within 10 days
following any change of place of employment.
5. If the board within the
30-day period notifies the county or city licensing authority that the board
objects to the granting of a work permit to the applicant, the authority shall
deny the work permit and shall immediately revoke and repossess any temporary
work permit which it
[**117] may have issued.
6. Application for a work permit, valid wherever a work permit is not
required by any county or city licensing authority, may be made to the board,
and may be granted or denied for any cause deemed reasonable by the board.
7. Any person whose application for a work permit has been denied
because of an objection by the board or whose application has been denied by the
board may apply to the board for a hearing. At the hearing, the board or any
designated member of the board or an examiner appointed by the board shall take
any testimony deemed necessary. After the hearing the board shall review the
testimony taken and any other evidence, and shall within 30 days from the date
of the hearing announce its decision sustaining or reversing the denial of the
work permit or the objection to issuance of a work permit. The board may object
to issuance of a work permit or may refuse to issue a work permit for any cause
deemed reasonable by the board. The board may object or refuse if the applicant
has:
(a) Failed to disclose, misstated or otherwise attempted to mislead
the board with respect to any material fact contained in the application for the
issuance or renewal of
[**118] a work permit;
(b) Knowingly failed to comply with the provisions of chapters 463, 464
or 465 of NRS or the regulations of the Nevada gaming commission at a place of
previous employment;
(c) Committed, attempted or conspired to commit any
crime of moral turpitude, embezzlement or larceny against his employer or any
gaming licensee, or any violation of any law pertaining to gaming, or any other
crime which is inimical to the declared policy of this state concerning gaming;
(d) Been identified in the published reports of any federal or state
legislative or executive body as being a member or associate of organized crime,
or as being of notorious and unsavory reputation;
(e) Been placed and
remains in the constructive custody of any federal, state or municipal law
enforcement authority; or
(f) Had a work permit revoked or committed any
act which is a ground for the revocation of a work permit or would have been a
ground for revoking his work permit if he had then held a work permit.
[*939] 8. Any applicant aggrieved by
the decision of the board may, within 15 days after the announcement of the
decision, apply in writing to the commission for review of the decision. Review
[**119] shall be limited to the record of the
proceedings before the board. The commission may sustain or reverse the board's
decision. The decision of the commission shall be subject to judicial review
pursuant to NRS 463.315.
9. All records acquired or compiled by the
board or commission relating to any application made pursuant to this section
and all lists of persons to whom work permits have been issued or denied and all
records of the names or identity of persons engaged in the gaming industry in
this state are confidential and shall not be disclosed except in the proper
administration of this chapter or to an authorized law enforcement agency.
10. A work permit expires unless renewed within l0 days after a change
of place of employment or if the holder thereof is not employed as a gaming
employee within the jurisdiction of the issuing authority [sic] for a period of
more than 90 days.
463.339 An application for
licensing, registration, finding of suitability, work permit or any approval or
consent required by this chapter shall make full and true disclosure of all
information to the board, commission or other relevant governmental authority as
necessary or appropriate
[**120] in the public
interest or as required in order to carry out the policies of this state
relating to licensing and control of the gaming industry.
463.360 1. Conviction by a court of competent
jurisdiction of the violation of any of the provisions of this chaper [sic] may
act as an immediate revocation of any and all licenses which may have been
issued to the violator, and, in addition, the court may, upon application of the
district attorney of the county or of the commission, order that no new or
additional license under this chapter be issued to such violator, or be issued
to any person for the room or premises in which such violation occurred, for a
period of 1 year from the date of such revocation.
2. Any person who
willfully fails to report, pay or truthfully account for and pay over any
license fee or tax imposed by the provisions of this chapter, or willfully
attempts in any manner to evade or defeat any such license fee, tax or payment
thereof shall be punished by imprisonment in the state prison for not less than
1 year nor more than 6 years, or by a fine of not more than $5,000, or by both
fine and imprisonment.
3. The violation of any of the provisions
[**121] of this chapter, the penalty for which
is not herein specifically fixed, is a gross misdemeanor.
463.530 All officers and directors of the
corporation which holds or applies for a state gaming license must be licensed
individually, according to the provisions of this chapter, and if, in the
judgment of the commission, the public interest will be served by requiring any
or all of the corporation's individual stockholders, lenders, holders of
evidence of indebtedness, underwriters, key executives, agents or employees to
be licensed, the corporation shall require such persons to apply for a license
in accordance with the laws and requirements in effect at the time the
commission requires such licensing. A peson [sic] who is required to be licensed
by this section shall apply for a license within 30 days after he becomes an
officer or director. A person who is required to be licensed pursuant to a
decision of the commission shall apply for a license within 30 days after the
commission requests him to do so.
Nev. Rev. Stat. § 463.360 (in effect from
July 1, 1979 until July 1, 1981):
463.360 1.
Conviction by a court of competent jurisdiction of a person for a violation
[**122] of, an attempt to violate, or a
conspiracy to violate any of the provisions of this chapter or of chapter 464 or
465 of NRS may act as an immediate revocation of all licenses which have been
issued to the violator, and,
[*940] in
addition, the court may, upon application of the district attorney of the county
or of the commission, order that no new or additional license under this chapter
be issued to such violator, or be issued to any person for the room or premises
in which such violation occurred, for a period of 1 year from the date of such
revocation.
2. Any person who willfully fails to report, pay or
truthfully account for and pay over any license fee or tax imposed by the
provisions of this chapter, or willfully attempts in any manner to evade or
defeat any such license fee, tax or payment thereof shall be punished by
imprisonment in the state prison for not less than 1 year nor more than 6 years,
or by a fine of not more than $5,000, or by both fine and imprisonment.
3. Except as provided in subsection 4, any person who willfully
violates, attempts to violate, or conspires to violate any of the provisions of
subsection 1 of NRS 463.160 shall be punished by imprisonment
[**123] in the state prison for not less than 1 year nor
more than 20 years, by a fine or [sic] not more than $50,000, or by both fine
and imprisonment.
4. A licensee who puts additional games or slot
machines into play or displays additional games or slot machines in a public
area without first obtaining all required licenses and approval is subject only
to the penalties provided in NRS 463.310 and in any applicable ordinance of the
county, city or town.
5. The violation of any of the provisions of this
chapter, the penalty for which is not specifically fixed in this chapter, is a
gross misdemeanor.
Nev. Gaming Comm'n Regs. 3.080, 3.100, 3.110, 8.010, 15.
1594-6 (1980):
3.080 Unsuitable affiliates. The
commission may deny, revoke, suspend, limit, condition or restrict any
registration or finding of suitability or application therefor upon the same
grounds as it may take such action with respect to licenses, licensees and
licensing; without exclusion of any other grounds. The commission may take such
action on the grounds that the registrant or person found suitable is associated
with, or controls, or is controlled by, or is under common control with, an
unsuitable person.
[**124] (Adopted:
9/73.)
3.100 Employee report.
1. Annually, on
or before the 15th of July, each nonrestricted licensee, as defined in Reg.
4.030.1(b), shall submit an employee report to the board on a form to be
furnished by the board. The report shall identify every individual who is
directly or indirectly engaged in the administration or supervision of the
gaming operations or physical security activities of such nonrestricted
licensee. The following classes of gaming employees are presumed to be actively
and directly engaged in the administration or supervision of gaming:
(a)
All individuals who are compensated in any manner in excess of $40,000 per
annum;
(b) All individuals who may approve or extend gaming credit in
any amount, or whose recommendations in this regard are ordinarily sought or
followed;
(c) All individuals who have authority to hire or terminate
casino personnel;
(d) All individuals who have the authority to
supervise or direct a shift of any gaming or security activity, including but
not limited to supervision or direction of the pit area, keno or bingo games,
slot machines, race or sports books, pari-mutuel operations, or any persons
having authority
[**125] to supervise or direct
such persons;
(e) All individuals who regularly participate in the count
more frequently than 1 day in each week or who actually participate in the count
more than 10 days in any 30-day period;
(f) All individuals who may
approve or extend to casino patrons complimentary house services other than
beverages only;
(g) All individuals who supervise or direct other
employees engaged in the control of gaming assets and revenues and record
keeping, including the recording of cash and evidences of indebtedness, and
[*941] the maintenance, review or control of
the records, accounts, and reports of transactions which are required to be kept
pursuant to Reg. 6;
(h) Any individual who has been specifically
represented to the board or commission by a licensee or any officer or director
thereof as being important or necessary to the operation of the gaming
establishment;
(i) All individuals who individually or as part of a
group formulate management policy.
2. The annual employee report shall
also include a description of the gaming duties, casino responsibilities, and
casino authority delegated to each individual identified in the report.
3. Any changes,
[**126] additions, or
deletions to any information contained within the annual employee report which
occurs subsequent to the filing of the report and prior to the filing of the
report for the next calendar year shall be reported to the board in writing no
less than 10 days after the end of the calendar quarter during which the change,
addition, or deletion occurred.
4. The annual employee report and
subsequent reports of changes, additions, or deletions shall be confidential and
may not be disclosed except upon order of the commission or pursuant to the
terms of NRS 463.130.
(Adopted: 7/76.)
3.110 Key
employee. 1. Any executive, employee, or agent of a gaming
licensee having the power to exercise a significant influence over decisions
concerning any part of the operation of a gaming licensee or who is listed or
should be listed in the annual employee report required by Reg. 3.100 is a key
employee.
2. Whenever it is the judgment of at least 3 members of the
commission that the public interest and the policies set forth in Nevada Revised
Statutes Chapter 463, the Nevada Gaming Control Act, will be served by requiring
any key employee to be licensed, the commission shall
[**127] serve notice of such determination upon the
licensee. The commission shall not be restricted by the title of the job
performed but shall consider the functions and responsibilities of the person
involved in making its decision as to key employee status. Grounds for requiring
licensing of a key employee which are deemed to serve the public interest and
the policies of the Nevada Gaming Control Act include but are not limited to the
following:
(a) The key employee is new to the industry, to the
particular gaming establishment, the position, or the level of influence or
responsibility which he has and the board or commission has little or outdated
information concerning his character, background, reputation, or associations,
or
(b) Information has been received by the board or commission which,
if true, would constitute grounds for a finding of unsuitability to be
associated with a gaming enterprise.
3. The licensee shall, within 30
days following receipt of the notice of the commission's determination, present
the application for licensing of the key employee to the board or provide
documentary evidence that such key employee is no longer employed by the
licensee. Failure of the
[**128] licensee to
respond as required by this section shall constitute grounds for disciplinary
action.
4. Any individual whose application for licensing as a key
employee is required pursuant to this regulation may request the commission in
writing to review its determination of that individual's status within the
gaming organization any time within 10 days following the filing of a completed
application as required by this regulation. In the event the commission
determines that the applicant is not a key employee or that the public interest
and policies of the Nevada Gaming Control Act do not require the licensing of
the key employee at this time, then the key employee applicant shall be allowed
to withdraw his application and he may continue in his employment. In no event
shall the request of the key employee applicant for review
[*942] stay the obligation of the licensee to present
the key employee's application within the 30-day period herein proscribed.
(Adopted: 7/76. Amended: 5/77.)
8.010 General.
1. No person shall sell, purchase, assign, lease, grant or foreclose a
security interest, hypothecate or otherwise transfer, convey or acquire in any
manner whatsoever
[**129] any interest of any
sort whatever in or to any licensed gaming operation or any portion thereof, or
enter into or create a voting trust agreement or any other agreement of any sort
in connection with any licensed gaming operation or any portion thereof, except
in accordance with law and these regulations.
2. No licensee shall
permit any person to make any investment whatever in, or in any manner whatever
participate in the profits of, any licensed gaming operation, or any portion
thereof, except in accordance with law and these regulations.
3. No
person shall transfer or convey in any manner whatsoever any interest of any
sort whatever in or to any licensed gaming operation, or any portion thereof,
to, or permit any investment therein or participation in the profits thereof by,
any person acting as agent, trustee or in any other representative capacity
whatever for or on behalf of another person without first having fully disclosed
all facts pertaining to such representation to the board. No person acting in
any such representative capacity shall hold or acquire any such interest or so
invest or participate without first having fully disclosed all facts pertaining
to such representation
[**130] to the board and
obtained written permission of the board to so act.
4. Regulation 8
shall apply to transfers of interest in corporations subject to Reg. 15, but
shall not apply to transfers of interest in corporations subject to Reg. 16.
(Amended: 9/73.)
15.1594-6 Prohibition with respect to
ownership of corporate licensees. No person shall acquire any equity
security issued by a corporate licensee or a holding company, nor become a
controlling affiliate of a corporate licensee or a holding company, nor become a
holding company of a corporate licensee or a holding company without first
obtaining the prior approval of the commission in accordance with Regulations 4
and 8.
(Effective: 9/73.)
