340 F2d 317 Leone v. United States

340 F.2d 317

65-1 USTC P 15,606

Frank LEONE, Defendant, Appellant,
v.
UNITED STATES of America, Appellee.

No. 6418.

United States Court of Appeals First Circuit.

Jan. 13, 1965.

Anthony A. Giannini, Providence, R. I., with whom Thomas R. DiLuglio, Providence, R.I., was on brief for appellant.

William J. Gearon, Asst. U.S. Atty., with whom Raymond J. Pettine, U.S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, and SWEENEY and WYZANSKI, District judges.

PER CURIAM.

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1

The defendant was convicted on two counts of an indictment charging failure to pay the special wagering occupational tax. 26 U.S.C. 4411, 7203 and 7262. The only question saved in the district court was whether evidence that five alleged wagers were placed with defendant by a government agent (under circumstances in no way suggesting entrapment) was insufficient to convict because of the fact that the agent, since he was to be reimbursed by the government, was not 'wagering' as he was not risking any money. Defendant overlooks the fact that the government was risking its money. And cf. United States v. Bergland, 7 Cir., 1963, 318 F.2d 159, cert. den. sub nom. Cantrell v. United States, 375 U.S. 861, 84 S.Ct. 129, 11 L.Ed.2d 88, where the court found 'gambling' even where, by his fraud, the defendant was betting on a sure thing. We might also suggest that from the fact that defendant accepted what he undoubtedly believed to be bona fide wagers from one stranger on five separate occasions, it could reasonably be inferred that he was taking routine bets from others.

2

Judgment will be entered affirming the judgment of the District Court.