Leo Vitello v. United States

(dissenting):

I respectfully dissent. In the first place, I entertain grave doubts that the evidence was sufficient to sustain con *425 viction. The indictment was predicated upon three alleged perjurious answers given by the accused during his interrogation before a grand jury. At its best, the English language is often imprecise, and it seems to me that one should not be indicted for perjury as a result of answers given to questions characterized by any ambiguity whatsoever.

One of the questions put to Vitello was whether he had “placed a wager” with Ruth Hughes. The Government admits that this form of question is reasonably susceptible to at least two opposing interpretations — i. e., whether he had given her money to be transmitted to someone else or whether he had actually bet with her personally on the outcome of a particular race. Since Vitello was led to believe, in the questioning regarding Harrison, that “place a wager” referred to employing another as an intermediary with the ultimate bookmaker, it may well be assumed that he continued to have this interpretation in mind when asked about Ruth Hughes. 1 Thus, his answer as to Hughes could have been truthful, based on…

Appellant was convicted by a jury of the crime of perjury 1 in connection with certain testimony given before a grand jury. The indictment charged appellant with perjury in three particulars; first, in falsely swearing that he never placed a bet with any bookmaker in the United States other than a Mr. Harrison; second, in falsely swearing that he did not know Charles Otis Spencer; and, third, in falsely swearing that he never placed a bet with Ruth Hughes. We affirm.

Although there are a few minor disputes, the following is a fair statement of the evidence on which the jury convicted the appellant. He was a well known businessman in Oceanside, California and also a horse player who claimed he didn’t want to deal directly with bookmakers.

Harrison was the owner of a pharmacy located in the same block as the shop operated by appellant. Between 1958 and 1962, Harrison, who was not a bookmaker, had an arrangement with appellant whereby the former regularly took bets from appellant and passed them on to the bookmakers. Because appellant did not want to place bets under his own name, it was agreed that they would be placed under Harrison’s name. Harrison, however, told the bookmakers…

425 F.2d 416 Leo VITELLO, Appellant, v. UNITED STATES of America, Appellee. No. 23450. United States Court of Appeals, Ninth Circuit. April 13, 1970. Rehearing Denied May 13, 1970. J. Perry Langford (argued), San Diego, Cal., for appellant. Raymond Zvetina (argued), Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee. Before MERRILL, ELY and KILKENNY, Circuit Judges. KILKENNY, Circuit Judge: 1 Appellant was convicted by a jury of the crime of perjury 1 in connection with certain testimony given before a grand jury. The indictment charged appellant with perjury in three particulars; first, in falsely swearing that he never placed a bet with any bookmaker in the United States other than a Mr. Harrison; second, in falsely swearing that he did not know Charles Otis Spencer; and, third, in falsely swearing that he never placed a bet with Ruth Hughes. We affirm. 2 Although there are a few minor disputes, the following is a fair statement of the evidence on which the jury convicted the appellant. He was a well known businessman in Oceanside, California and also a horse player who claimed he didn't want to deal directly with bookmakers. 3 Harrison was the owner…