VANCE, Circuit Judge:
Thomas Hugh Wilkinson and Broadus Vanlandingham Stewart are Mississippi gamblers whose luck ran out. Wilkinson, Stewart, and eleven codefendants were indicted by a federal grand jury on two counts stemming from their gaming activities. In the first count of the indictment, defendants were charged with conspiring to conduct an illegal gambling business in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1955
On November 6, 1977, the jury trial of Wilkinson, Stewart, and nine of the codefendants began, but, after two days, the government dismissed the indictment as to
Defendants' second trial began on February 6, 1978. The government's witnesses included two persons who had been indicted with Wilkinson and Stewart and had not testified during the November trial. The jury found both Wilkinson and Stewart guilty of the conspiracy count, but not guilty of the substantive count of the indictment. Defendants moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. When the district court denied their motion, they appealed their conviction on the conspiracy charge to this court. We affirm.
Wilkinson and Stewart do not contest that they are professional bookmakers. They contend simply that they run a two-man intrastate operation and have not run afoul of federal law. On appeal they argue that the evidence adduced at their first trial was not sufficient to support a conviction and that their motions for judgment of acquittal should have been granted. They also urge that the trial court caused the jurors to render an impermissibly ambiguous verdict by instructing them that they could convict under Count I if they found that defendants conspired to violate either 18 U.S.C. § 1955(a) or 18 U.S.C. § 1952(a)(3). In addition, Stewart asserts that the government should not have been permitted to elicit testimony about Stewart's arrest record during its cross-examination of Wilkinson.
Wilkinson and Stewart first argue that, because the evidence in their first trial was insufficient, their motions for judgment of acquittal in that trial should have been granted. We first must determine whether the claimed insufficiency of the evidence in the first trial is before us on review of a judgment of conviction after a second trial. The government contends that we may not now review claimed errors committed during a former trial. We do not believe, however, that the present question comes within the rule on which the government relies. If the trial court had granted defendants' motions for acquittal on the conspiracy charge because the evidence was insufficient during their first trial, their retrial on that count would have been precluded. "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The denial of a motion for a judgment of acquittal ordinarily is neither a final decision nor an interlocutory order and is not appealable until a final decision has been rendered. United States v. Young, 544 F.2d 415 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963); 28 U.S.C. §§ 1291, 1292. In a criminal case, a judgment of conviction and a sentence are usually necessary to create finality. Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937); United States v. Bendicks, 439 F.2d 1120 (5th Cir. 1971). Before Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), decided approximately five months before defendants' first trial, denial of a motion to dismiss an indictment on double jeopardy grounds similarly could not be appealed in this circuit until a final judgment had been rendered. See, e.g., United States v. Bailey, 512 F.2d 833 (5th Cir.), cert. dismissed, 423 U.S. 1039, 96 S.Ct. 578, 46 L.Ed.2d 415 (1975). In Abney, the United States Supreme Court decided that "a
We must sustain the denial of a motion for a judgment of acquittal if a reasonable jury might decide that the evidence, examined in the light most favorable to the government, is inconsistent with every reasonable theory of the defendant's innocence. Burks v. United States, 437 U.S. at 16, 98 S.Ct. at 2150; United States v. Fredericks, 586 F.2d 470, 474 (5th Cir. 1978), cert. denied, ___ U.S. ___, 99 S.Ct. 1507, 59 L.Ed.2d 776 (1979); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).
We have reviewed the transcript of the first trial and find that the evidence was sufficient to warrant a determination that each defendant conspired to violate 18 U.S.C. § 1955(a) by entering "into an agreement with one or more persons to conduct a gambling business violative of state law." United States v. Boyd, 566 F.2d 929, 938 (5th Cir. 1978).
Citing United States v. Pepe, 512 F.2d 1129 (3rd Cir. 1975), Wilkinson and Stewart contend that the government was required to show not only that each defendant agreed with one or more persons to carry on an illegal gambling business but also that each defendant reasonably anticipated the involvement of five or more persons in the illegal gambling operation. In United States v. Boyd, 566 F.2d at 937-38, however, another panel of this court rejected this aspect of United States v. Pepe and held that this jurisdictional requirement of § 1955 does not apply to a charge of conspiracy. Boyd holds that the government's burden under the count charging conspiracy to violate § 1955(a) was to prove that defendants entered into an agreement with one or more persons to conduct a gambling business violative of state law. The evidence is more than sufficient to meet that burden.
The government also sufficiently showed that defendants conspired to use interstate facilities to carry on their illegal
At the first trial, defendants presented no evidence to rebut the government's prima facie case. The district court did not err in denying defendants' motions for judgments of acquittal.
At defendants' second trial, the trial judge instructed the jury that to convict defendants they must believe beyond a reasonable doubt that defendants conspired to violate either 18 U.S.C. § 1955(a) or 18 U.S.C. § 1952(a)(3) in the manner charged in the indictment.
A criminal conspiracy is an agreement between two or more persons to commit a crime against the United States accompanied by an overt act in furtherance of the agreement. E.g., United States v. Sink, 586 F.2d 1041, 1050 (5th Cir. 1978); United States v. Teal, 582 F.2d 343, 345 (5th Cir. 1978); United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977). A single conspiracy may have several objectives. Ingram v. United States, 360 U.S. 672, 679, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); United States v. Bolts, 558 F.2d 316, 325 (5th Cir. 1977), cert. denied, Hicks v. United States, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1978); United States v. Beasley, 550 F.2d 261, 276 (5th Cir.), cert. denied, 434 U.S. 863, 938, 98 S.Ct. 195, 427, 54 L.Ed.2d 138, 297 (1977). When a conspiracy to violate two statutes is alleged, the jury may find the defendant guilty if they believe beyond a reasonable doubt that he or she conspired to violate either one of the statutes. United States v. O'Looney, 544 F.2d 385 (9th Cir.), cert. denied, 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625 (1976). The evidence was sufficient to require submission to the jury in connection with the conspiracy to violate either of the statutes alleged in Count I. The challenged instruction correctly submitted the count to the jury.
The following exchange took place during Wilkinson's cross-examination:
Stewart contends that, because the question was improper and unduly prejudicial, his conviction must be reversed.
The government argues that it was only trying to show that both partners knew that their gambling activities violated state law, but it also indicates in its brief that defendants admitted having this knowledge "at the outset." The government therefore did not need to elicit evidence of Stewart's prior arrests and, because of its potentially prejudicial nature, should not have done so. See United States v. Kaiser, 545 F.2d 467, 476 (5th Cir. 1977). The trial judge instructed the jury, "Now these defendants are not on trial for any act or conduct which is not specifically alleged in this indictment." Wilkinson made the challenged statement after he had described, on direct as well as cross-examination, his gambling partnership with Stewart and their in-state wagering activities. The discussion of Stewart's prior arrests was brief; the government elicited no details or explanations. Under these circumstances, we find that the testimony about Stewart's arrests was undoubtedly harmless. See generally, United States v. Dawson, 576 F.2d 656, 658 (5th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 88 (1979); United States v. Herndon, 536 F.2d 1027, 1030 (5th Cir. 1976); Leonard v. United States, 386 F.2d 423, 425 (5th Cir. 1967).