United States v. Wayne Donaway, A/K/A Babe Donaway

In a ten-count indictment, Donaway and eight others were charged with interstate transmission of wagering information ( 18 U.S.C. § 1084 ), transmission in aid of gambling ( 18 U.S.C. § 1952 ), and conspiracy to violate the federal bribery statute ( 18 U.S.C. § 224 ), and §§ 1084 and 1952. The conspiracy count was dismissed as to all but two defendants. Donaway was convicted on the remaining two counts. The conviction of defendant Swank has been affirmed on appeal. United States v. Swank, 441 F.2d 264 (9th Cir. 1971). The opinion in Swank and in United States v. Brandy- berry, 438 F.2d 226 (9th Cir. 1971), provide factual background which we need not repeat here, although appellant Don-away was not mentioned in either opinion.

Donaway raises several issues, of which we consider three to be significant. Our disposition of those makes it unnecessary to discuss the others. First, was Donaway’s joinder in the indictment improper and, if initially proper, did the district court abuse its discretion in denying several motions to sever? Second, was the language of 18 U.S.C. § 1084 intended to cover persons who merely bet at licensed pari-mutuel betting enterprises at racetracks, where…