TUTTLE, Circuit Judge:
The defendants were convicted at a jury trial on a one count indictment for operating a numbers lottery in violation of 18 U.S.C. § 1955. This statute prohibits participation in a gambling business which violates state law. Not every gambling business illegal under state law is prohibited by this statute, however, because the statute reaches only those that include five or more
All the defendants contend that the government did not prove section 1955's jurisdictional requirement of participation by five or more persons for at least thirty days.
The evidence at trial, construed in the light most favorable to the government, see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), showed that Andrew Preston Perkins operated a numbers lottery in Jacksonville, Florida. Eddie C. Allen was the "pickup man" who regularly traveled from seller to seller to pick up recorded bets, and Rosa Lee White operated a "checkup house" where she totaled the recorded bets and calculated the payoff on winning numbers and sellers' commissions.
This operation sold three numbers games: on Mondays through Fridays, "Bond;" on Thursdays, "Total;" and on Saturdays, "Races."
The government's case unfolded in three parts. The first was the government's investigation. FBI agents conducted visual surveillance of Eddie C. Allen over a period of approximately five months. This surveillance took place on September 15 and 16, October 21, December 2, 9, 16, and 23,
On September 15, 1976, Allen made one stop
On December 2 and 9, Allen made the same two stops and then stopped at Rosa Lee White's address before meeting with Perkins. Later, he was observed again meeting with Perkins adjacent to White's, after which Perkins went into White's apartment building.
On December 16, Allen made one additional stop
On January 6, 1977, Allen made the same two stops as in September and October. On January 13, Allen made four stops
The government's investigation culminated on February 10, 1977, when FBI agents obtained warrants to conduct searches of the premises at which Allen stopped. Each of these searches except one yielded betting slips and sales totals for Bond, Total and Races lotteries. Some of the papers seized matched those at other locations.
The second part of the government's evidence was the testimony of three persons whose premises were searched on February 10. Each of these witnesses admitted that he or she had sold numbers for at least six months. Anna Flanders, at whose premises Allen stopped during each surveillance except the first and the brief one on December 23, testified that she had sold Bond and Total since early 1976. Originally, she had done so for an O. C. Pace who died in July, 1976. Eddie Allen had picked up numbers from Flanders for Pace and continued to do so since Pace's death; Flanders did not know who was Allen's boss during this time. She identified her handwriting on Bond and Total slips seized at her premises as well as at White's.
Henry Sinclair Puzie, at whose premises Allen stopped on January 13 and 27 and February 3 and who was observed leaving his apartment with Allen on January 13 and meeting with Perkins outside the Soul Lounge on December 9, testified that he sold Bond, Total, and Races for six months to a year. Puzie identified his handwriting on slips found in his apartment and in White's apartment.
Willie Bannister, who appeared in surveillance only on January 27 and February 23, 1977, testified that he sold Bond, Total, and Races for about six months. His testimony was indefinite as to the date when he quit selling. Puzie testified that he began selling when he was recruited by Perkins and that since then Allen picked up bets at Puzie's apartment on Mondays, Thursdays, and Saturdays, and Perkins met with him once a week to settle up. A search of Bannister's Confectionary yielded no paraphernalia. Bannister said that he had spotted
The third part of the government's evidence was the testimony of its expert on lottery operations. He explained how the Bond, Total, and Races lotteries operate. He also described the normal structure of a lottery operation as a central operator connected to sellers by a "pickup man" who picks up bets on a regular basis during the afternoons when the number becomes available, and delivers betting slips to a "checkup house."
Rosa Lee White and Eddie C. Allen concede that the government proved the existence of a numbers lottery in which many people participated at various times. Along with defendant Perkins they argue, however, that the government did not prove that five or more persons participated in this numbers operation during any continuous thirty day period. We find no merit in this argument.
Although the defendants argue that the government's surveillance was too sporadic and was never conducted regularly over any thirty day period, the repeated pattern established over a period of several months in this case was enough for the jury to infer that the lottery continued during hiatuses in the government's surveillance of Allen. On the basis of this pattern, coupled with the seizure of lottery paraphernalia at the locations which formed part of this pattern, the jury reasonably could have concluded that Perkins, Allen, and two sellers, Anna Flanders and Leo Dennis, were involved in the lottery since September and that Rosa Lee White and the unidentified seller were involved since December 2 and December 16 respectively, more than thirty days preceding the February 10, 1977, searches and arrests. On the basis of the testimony of the sellers, the jury could have concluded that two more sellers, Henry Puzie and Willie Bannister, were involved for approximately six months. The defendants contend for various reasons that this testimony was successfully impeached. These arguments, however, go to matters of credibility which we must resolve in favor of the government. Glasser, supra, at 80, 62 S.Ct. 457; United States v. Chandler, 586 F.2d 593, 599 (5th Cir. 1978).
Perkins' contention that his own involvement was not proved is also without merit. The direct testimony of Willie Bannister that Perkins recruited him into the numbers operation and met with him weekly to settle accounts, together with Perkins' repeated appearance in the pattern of surveillance, was substantial evidence upon which the jury could conclude that Perkins was the operator of this lottery.
Among the searches conducted on February 10, 1977, FBI agents searched Rosa Lee White's apartment pursuant to a warrant issued by a United States Magistrate. Approximately fifteen minutes after agents began the search, additional agents arrived and began to question White. They gave her Miranda warnings, which she indicated she understood, and obtained from her a Waiver of Rights. White told them that she had operated a checkup house for approximately one month, tabulating slips furnished by an unknown person which she would then return by leaving them in an old stove on a porch of her apartment building or under a vehicle in the parking lot.
An agent then went to look at these locations. As he did, he found betting slips and adding machine tapes directly below White's window. When he returned to the apartment with these, White admitted that she had thrown them out the window as agents were entering her apartment. Prior to trial, White moved to suppress paraphernalia seized inside her apartment, her statements to the FBI agents, and the papers she identified. The district court granted the motion with respect to paraphernalia seized within the apartment. The court ruled invalid the warrant authorizing the search because the supporting affidavit did not adequately connect the apartment to be searched with White. At the same time,
The government, among its responses to this contention, attacks the premise on which White's argument is based, that the warrant on which the search was based was invalid.
The warrant was founded on an affidavit by FBI Special Agent Dennis Erich. The affidavit contained information from seven confidential informers, all of whom had furnished accurate information before, cf. Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), tipping off the FBI agents as to the existence of a numbers lottery and identifying Andrew Perkins and Eddie Allen as its central figures. The affidavit recited the efforts of the FBI agents, detailed above, to corroborate this information through surveillance. In addition to recounting Allen's various stops at 1131 Old Kings Road, later identified as White's address, the affidavit said the following about White:
The affidavit then recounted further observation of White on February 7, 1977:
On the basis of this information, the magistrate issued a warrant to search "[a] third floor apartment at 1131 Old Kings Road . . . the door to this apartment is located directly at the top of the third floor staircase."
A magistrate's factual conclusions in determining that probable cause exists to issue a warrant are entitled to great deference.
In this light, we find that the district court erred in overruling the magistrate's determination that there was probable cause to search Rosa Lee White's apartment. There was ample basis to conclude that a crime, the operation of a numbers lottery involving five or more persons, was taking place and that the "black female" at 1131 Old Kings Road was a participant. On this basis alone, her apartment may have been a logical place to search. See United States v. Maestas, 546 F.2d 1177, 1179-80 (5th Cir. 1977). In addition, there was evidence in the affidavit before the magistrate that this woman was receiving gambling paraphernalia at her apartment. There was some factual basis for concluding that the apartment to be searched was hers. Without regard to whether this initially was an adequate foundation for probable cause, we cannot conclude that the magistrate acted arbitrarily by issuing a warrant to search White's apartment on the basis of this information.
Because we conclude that the search of White's apartment was valid, the question whether her statements following valid Miranda warnings and the evidence stemming from these statements were fruits of an unlawful search is moot.
After the jury rendered its verdict but before judgment was entered defendant Perkins moved for a new trial pursuant to Fed.R.Crim.P. 33 on the grounds, inter alia, that a juror was incompetent due to a mental infirmity.
The juror in question did manifest some inappropriate behavior. On one occasion early in the trial, he blurted out a one word answer to a question propounded to a witness.
Despite the juror's medical records and his behavior, there was substantial evidence that he was capable of understanding the proceedings. In his own testimony at the post-trial evidentiary hearing, he showed some recollection of witnesses, testimony, and jury deliberations. He also was able to give an explanation of the presumption of innocence
Seeking in the course of his summation to rebut the defendants' contention
Defendant Perkins objected to this last sentence and moved for a mistrial on the basis that there was no evidence that Perkins succeeded to O. C. Pace's position as operator of the lottery. The district court sustained the objection and instructed the jury to disregard the sentence, but denied the motion for a mistrial. Perkins would have us hold that the statement was so prejudicial as to require a mistrial.
Underlying the limitations on comments an attorney may make in closing arguments to a jury is a belief that an attorney cannot make comments which themselves operate as evidence in the case. See generally United States v. Morris, 568 F.2d 396, 401-02 (5th Cir. 1978). Nevertheless, an attorney is entitled to urge the conclusions which the attorney thinks the jury should draw from the evidence. The government urges that the prosecutor's comments were proper for this reason and that the district court therefore erred in striking the offending language.
There was evidence to support the inference which the prosecutor drew in his comments. Anna Flanders testified that O. C. Pace recruited her as a seller and that Eddie Allen was Pace's pickup man. Pace died in July, 1976, but Allen continued to pick up numbers from Flanders. There was, as we have already found, substantial evidence that Perkins was the operator of the lottery for which Allen made pickups during this time. It is possible to infer from this continuity that Perkins succeeded to Pace's position. Each attempt to draw an inference such as this should not be the basis of an objection by defense counsel, much less lead to a mistrial.
Even if the inference which the prosecution sought to draw here was beyond the reach of the evidence in this case, it was not substantially prejudicial as to require a mistrial. Because there was some basis in the record for the statement and there was substantial other evidence that Perkins operated the lottery from September, 1976, to February, 1977, the district court's instruction to the jury to disregard the offending language was adequate to cure any prejudice which might have resulted.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
The high-finance sources of the winning numbers contrast with the realities of the betting scheme. The bets were small. On one tally sheet, the median bet was for 50¢. Some were for as little as 10¢. The payoff odds on Total and Races are sixty-five to one, on Bond four hundred to one. Sellers normally received a 35 percent commission on Bond and 20 percent on Total and Races.
The district court applied an exception to this general rule recognized in United States v. Dioguardi, 361 F.Supp. 954 (S.D.N.Y.1973), aff'd 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974). In Dioguardi, the court built upon numerous state court decisions and required a strong showing that a juror was incompetent in order to overcome the presumption that a person is sane. Only when this presumption was overcome would the court allow full inquiry into the competency of the juror. This inquiry would address itself to the juror's competency at the time of the trial. 361 F.Supp. at 957. In Peterman v. Indian Motorcycle Co., 216 F.2d 289 (1st Cir. 1954), the First Circuit approved the use of a similar procedure.
In the present case, defendant Perkins' motion for a new trial was made on information and belief. The court allowed Perkins an additional ten days to make an evidentiary showing in support of his allegation that the juror in question was incompetent. It was after this that Perkins introduced the hospital records showing that the juror had been adjudicated incompetent, and only then did the court allow further investigation and a full evidentiary hearing. In Dioguardi, the court noted that an adjudication of incompetency generally has been held to rebut the presumption of sanity and, where there has been no restoration to competency, to establish a rebuttable presumption of continued incompetence. Dioguardi, supra, 361 F.Supp. at 957 & n.13.