OVERVIEW: Appellants sought to gain control over casino operations, in order to "skim" money from the casino. Appellants were convicted of knowingly transporting stolen money in interstate commerce, travelling in and utilizing the facilities of interstate commerce with the intention of establishing and managing an unlawful interest in a Nevada gaming establishment, and conspiring with others to accomplish these ends. In affirming district court's judgments, court of appeals held: unlawful activity under the Travel Act, 18 U.S.C.S. § 1952, was not based upon state regulations violation alone but also upon violation of related Nevada statutes; search warrant was "general warrant" and was valid; district court's conclusion that challenged co-conspirators statements of notes were part of the records made on the skimming operation were made in furtherance of the conspiracy was not clearly erroneous; co-conspirators' statements did not violate confrontation clause.

OUTCOME: Judgments convicting appellants were affirmed where district court's conclusion that challenged co-conspirators statements of notes were part of the records made on the skimming operation were made in furtherance of the conspiracy was not clearly erroneous and district court's findings and evidence determinations were upheld.

CORE TERMS: gaming, conspiracy, license, licensee, licensed, conspirator, casino, game, licensing, regulation, gambling, establishment, slot machine, indictment, skimming, machine, severance, conversation, furtherance, furnish, unsuitable, holder, lease, slot, admissible, Travel Act, public interest, key employee, bona fide, imprisonment
 

 Criminal Law & Procedure : Criminal Offenses : Racketeering Offenses : Travel Act

The Travel Act, 18 U.S.C.S. § 1952, prohibits travel in interstate commerce or the use of facilities of interstate commerce to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, which is further defined as any business enterprise involving gambling in violation of the laws of the State in which they are committed. It is the violation of federal law which is the gravamen of a Travel Act offense. As a predicate to a Travel Act conviction, absent a distinct violation of a law of the United States, the defendants must have engaged in some form of unlawful activity prohibited by the law of the State of Nevada. A violation of a Nevada Gaming Commission regulation could not in and of itself form the predicate state law violation required for a federal prosecution under the Travel Act.

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Governments & Legislation : Legislation : Statutory Rights & Remedies

Although there is no specific penalty for violation of Nev. Rev. Stat. §§ 463.160 (1)(a), (1)(c), the "catch-all" section, Nev. Rev. Stat. § 463.360, which makes such a violation a gross misdemeanor, and thus a crime, applies.

 Criminal Law & Procedure : Search & Seizure : Search Warrants : Neutral & Detached Magistrate
 Criminal Law & Procedure : Pretrial Motions : Disqualification of Judge or Counsel

Every magistrate, judge and justice must disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned. Disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. Under 28 U.S.C.S. § 455(b)(3), a magistrate or judge must also disqualify himself or herself if he or she has served in governmental employment and in such capacity participated as counsel concerning the proceeding. If an indictment or investigation leading directly to the indictment began after a former prosecutor took office as a judge, he or she is not considered to have been "of counsel" and is not required by § 455 to disqualify himself or herself.

 Criminal Law & Procedure : Search & Seizure : Search Warrants : Neutral & Detached Magistrate
 Criminal Law & Procedure : Pretrial Motions : Disqualification of Judge or Counsel

Knowledge of and from prior investigation does not necessarily require recusal of a magistrate.

 Criminal Law & Procedure : Search & Seizure : Search Warrants : Particularity

Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice because less particularity can be reasonably expected than for goods whose exact identity is already known at the time of issuance.

 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator

A statement, including a writing, is not hearsay under Fed. R. Evid. 801(d)(2)(E) if it is a statement by a co -conspirator of a party during the course and in furtherance of the conspiracy.

 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator

Before an out-of-court declaration of a co -conspirator may be admitted against a defendant, the government must prove that (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statements were made during the course and in furtherance of the conspiracy.

 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator
 Evidence : Procedural Considerations : Burdens of Proof, Presumptions & Inferences
 Evidence : Procedural Considerations : Rulings on Evidence

The district court determines the admissibility of the co -conspirators statement under Fed. R. Evid. 801(d)(2)(E) and must be satisfied that it is more likely than not that the statement was made during the course and in furtherance of an illegal association to which the declarant and the defendant were parties. In order to be made in furtherance of the conspiracy, a statement must somehow advance the objectives of the conspiracy, not merely inform the listener or reader of the declarant's activities.

 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator
 Evidence : Procedural Considerations : Burdens of Proof, Presumptions & Inferences
 Evidence : Procedural Considerations : Rulings on Evidence

Although the evidence of the co-conspirators' statements must be independent, i.e. exclusive of the challenged statements, it may be circumstantial. The district court's determination will not be reversed unless it is clearly erroneous.

 Constitutional Law : Criminal Process : Confrontation of Witnesses
 Criminal Law & Procedure : Trials : Defendant's Rights : Right to Confrontation
 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator
 Evidence : Procedural Considerations : Burdens of Proof, Presumptions & Inferences

Even if a co -conspirator statement is admissible under Fed. R. Evid. 801(d)(2)(E), in order to satisfy the requirements of the confrontation clause, the government must demonstrate that the declarant is unavailable and that the statement bears sufficient indicia of reliability.

 Constitutional Law : Criminal Process : Confrontation of Witnesses
 Criminal Law & Procedure : Trials : Defendant's Rights : Right to Confrontation
 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator
 Evidence : Hearsay Rule & Exceptions : Unavailability
 Criminal Law & Procedure : Evidence : Hearsay Rule & Exceptions : Absence of Declarant

Declarants who are also co -defendants are considered "unavailable" for the purposes of the confrontation clause because they exercised their Fifth Amendment right and chose not to testify at their trial.

 Constitutional Law : Criminal Process : Confrontation of Witnesses
 Criminal Law & Procedure : Trials : Defendant's Rights : Right to Confrontation
 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator

Although the confrontation clause and the hearsay exceptions are not co -extensive evidence properly admitted under the co -conspirator exception does not, absent unusual circumstances, violate the confrontation clause. The following factors are relevant to the reliability inquiry under the confrontation clause: (1) whether the context of the statements and the persons to whom they were made suggest that the statements are reliable, (2) whether the declarant had a motive for lying, (3) whether the declarant had difficulty with his or her memory, and (4) whether the declarant had personal knowledge of the identity and role of the participants in the crime. It is not necessary that all four factors be present in order to satisfy the confrontation clause.

 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator

The Federal Rules of Evidence categorize coconspirator statements along with admissions as statements which are not hearsay under Fed. R. Evid. 801(d)(2). Admissions are not admitted because of confidence in their inherent reliability; rather, they are admitted because a party will not be heard to object that she or he is unworthy of credence.

 Evidence : Procedural Considerations : Burdens of Proof, Presumptions & Inferences
 Evidence : Procedural Considerations : Rulings on Evidence
 Evidence : Witnesses : Examination & Presentation of Evidence

The manner and order of interrogation and presentation of evidence are matters committed to the discretion of the district court.

 Evidence : Procedural Considerations : Burdens of Proof, Presumptions & Inferences
 Evidence : Procedural Considerations : Rulings on Evidence
 Evidence : Witnesses : Expert Testimony
 Criminal Law & Procedure : Evidence : Expert Testimony

Fed. R. Evid. 702 states that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise. The district court has broad discretion in deciding whether to admit expert testimony.

 Evidence : Relevance : Prior Crimes, Wrongs, or Acts

Fed. R. Evid. 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to prove character, but is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b) is one of inclusion rather than exclusion and admits evidence of other crimes or acts relevant to any issue in the trial, unless it tends to prove only criminal disposition.

 Evidence : Procedural Considerations : Rulings on Evidence
 Evidence : Relevance : Prior Crimes, Wrongs, or Acts

Evidence of prior wrongful acts is admissible if (1) the evidence is relevant to an issue other than the defendant's character, (2) there is clear and convincing evidence that the defendant committed the other acts, and (3) the potential unfair prejudice does not outweigh its probative value. Evidence which is probative of the crime charged, and not solely uncharged crimes, is not "other crimes" evidence. Further, where the evidence of an act and the evidence of the crime charged are inextricably intertwined, the act is not extrinsic and Fed. R. Evid. 404(b) is not implicated. The trial court has broad discretion under this rule and will be reversed only when the evidence clearly has no bearing upon any of the issues involved. In balancing the prejudicial effect and probative value, great deference is given to the district judge's determination and express findings are not required.

 Evidence : Relevance : Prior Crimes, Wrongs, or Acts

The rule limiting admissibility of uncharged misconduct does not shield an accused from the reception of evidence that he boasted of his past experience in crime in order to reassure a prospective vender or co-worker of his skill and reliability.

 Criminal Law & Procedure : Criminal Offenses : Inchoate Crimes : Conspiracy

A defendant found guilty of a conspiracy may also be found guilty of substantive offenses committed by a co -conspirator or co -conspirators, in furtherance of the conspiracy, at the time that defendant was a member of the conspiracy, even though that defendant did not participate in the substantive offenses or have any knowledge of them.

 Criminal Law & Procedure : Criminal Offenses : Inchoate Crimes : Conspiracy
 Criminal Law & Procedure : Accusatory Instruments : Indictments
 Criminal Law & Procedure : Trials : Burdens of Proof : Prosecution

Variance refers to the failure of the government's proofs to conform to the indictment. A variance is not fatal to the prosecution unless the defendant could not reasonably have anticipated from the indictment what evidence would be presented at trial or unless the indictment is so vague as not to bar subsequent prosecution on the same offense. To resolve the question of whether the government's proof shows that one or multiple conspiracies existed, a reviewing court must determine whether there was one overall agreement to perform various functions to achieve the objectives of the conspiracy. The existence of a single agreement can be inferred if the evidence revealed that the alleged participants shared a common aim or purpose and mutual dependence and assistance.

 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses

There is a strong policy in favor of joint trial where the defendants are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses under Fed. R. Crim. P. 8(b). However, severance of charges or defendants properly joined is governed by Fed. R. Crim. P. 14.

 Criminal Law & Procedure : Criminal Offenses : Inchoate Crimes : Conspiracy
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses

It is the general rule that persons charged in a conspiracy should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts. Severance will be allowed upon a showing of real prejudice to an individual defendant. However, the motion to sever is addressed to the discretion of the trial court, and a denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown. Thus, an abuse of discretion in refusing severance is not alone enough to justify reversal and a new trial. There must also be prejudice. That is, there must be some appreciable chance that the defendants would not have been convicted had the separate trial they wanted been granted.

 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses

The poor reputation of one's co -defendant or co -defendants alone is not grounds for severance from joint trial.

 Criminal Law & Procedure : Criminal Offenses : Inchoate Crimes : Conspiracy
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses
 Criminal Law & Procedure : Jury Instructions : Objections

In the context of an allegation that incriminating evidence presented in a joint trial has "spilled over" from one or more defendants to another, a reviewing court must consider whether the jurors were able to follow the trial court's cautionary instructions and compartmentalize the evidence against each defendant on each count individually.

 Criminal Law & Procedure : Criminal Offenses : Inchoate Crimes : Conspiracy
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses
 Criminal Law & Procedure : Trials : Burdens of Proof : Defense

It is not reversible error to deny severance requested on the ground that a defendant wants to call a co -defendant as a witness, unless the defendant shows that the co -defendant is likely to testify at a separate trial and the testimony would exculpate him or her. It was not necessary for a defendant to prove to a certainty that co-defendant would be available and willing to testify in a separate trial. The defendant must show that the co -defendants testimony would be substantially exculpatory. The defendant must show that the co -defendants testimony would do more than merely tend to contradict a few details of the government's case against him or her.

 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses

While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one. The governing standard requires the moving defendant to show that the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.

 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Defendants
 Criminal Law & Procedure : Pretrial Motions : Severance : Severance of Offenses

The mere presence of hostility among defendants or the desire of one to exculpate himself or herself by inculpating another have both been held to be insufficient grounds to require separate trials. Thus antagonistic defenses do not require the granting of severance even when one defendant takes the stand and blames his or her co-defendant for the crime.

 Criminal Law & Procedure : Pretrial Motions : Speedy Trial : Constitutional Right

The Sixth Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. Any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case: The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. There are four factors which courts should consider in determining whether a particular defendant has been deprived of this right: the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

 Criminal Law & Procedure : Pretrial Motions : Speedy Trial : Constitutional Right

Prejudice, of course, should be assessed in light of the interests of defendants which the speedy trial right was designed to protect: [1] to prevent oppressive pretrial incarceration; [2] to minimize anxiety and concern of the accused; and [3] to limit the possibility that the defense will be impaired.

 Criminal Law & Procedure : Pretrial Motions : Speedy Trial : Statutory Right

See the Speedy Trial Act, 18 U.S.C.S. § 3161(c) (1), (h) (7)-(8)(A).

 Criminal Law & Procedure : Pretrial Motions : Dismissal
 Criminal Law & Procedure : Pretrial Motions : Speedy Trial : Constitutional Right

Fed. R. Crim. P. 48(b) imposes a more stringent standard than the Sixth Amendment and permits dismissal even though there has been no constitutional violation. Dismissal under this rule is discretionary and is governed by the same general considerations as the Sixth Amendment.

 Evidence : Hearsay Rule & Exceptions : Admissions by Coconspirator
 Evidence : Procedural Considerations : Burdens of Proof, Presumptions & Inferences
 Evidence : Procedural Considerations : Rulings on Evidence

An out-of-court declaration of a co -conspirator is admissible against a defendant if the government demonstrates (1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy. The district court must make a preliminary determination that the independent evidence proves by a preponderance that the defendant was involved in a conspiracy and that the out-of-court statement was made during the course and in furtherance of the conspiracy. The proof may be "totally circumstantial," and the court must view the evidence as a whole rather than consider individual items in isolation.

 Criminal Law & Procedure : Trials : Motions for Acquittal

In reviewing a denial of a motion for a judgment of acquittal, a reviewing court must view the evidence in the light most favorable to the government and must give the government the benefit of all reasonable inferences that may logically be drawn from the evidence. A motion for acquittal should be granted only where the evidence viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.

 Criminal Law & Procedure : Criminal Offenses : Inchoate Crimes : Conspiracy
 Criminal Law & Procedure : Trials : Burdens of Proof : Prosecution

Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy. A defendant's participation in a conspiracy must be established with proof that the defendant knowingly contributed efforts in furtherance of it.

 Criminal Law & Procedure : Accessories : Aiding & Abetting
 Criminal Law & Procedure : Trials : Burdens of Proof : Prosecution

To establish aiding and abetting the government is required to show that the defendant associated himself with the unlawful venture, that he participated in it as something he wished to bring about, and that he sought by his action to make it succeed. Some affirmative participation by the defendant which at least encourages the perpetrator must be shown.

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.130 (1975).

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.160 (1975).

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.170 (1975).

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.200 (1975).

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.335 (1975).

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.360 (1975).

 Criminal Law & Procedure : Criminal Offenses : Miscellaneous Offenses : Gambling
 Tax Law : State & Local Tax : Gambling Tax
 Governments & Legislation : State & Territorial Governments : Licenses

See Nev. Rev. Stat. § 463.530 (1975).

COUNSEL: Edward D. Holmes, Justice Department, Kansas City, Missouri, for Appellee.

Ephraim Margolin, San Francisco, California, Melvyn L. Segal, Chicago, Illinois, and Oscar B. Goodman, Las Vegas, Nevada, for Appellants.

JUDGES: McMillian, Circuit Judge, Floyd R. Gibson, Senior Circuit Judge, and Arnold, Circuit Judge.

OPINIONBY: McMILLIAN

OPINION:  [*903]  McMILLIAN, Circuit Judge.

Carl Wesley Thomas, Carl Angelo DeLuna, Carl James Civella, Charles David Moretina, and Anthony Chiavola, Sr., appeal from a final judgment entered in the District Court n1 for the Western District of Missouri upon a jury verdict finding them guilty of knowingly transporting stolen money in interstate commerce, travelling in and utilizing the facilities of interstate commerce with the intention of establishing and managing an unlawful interest in a Nevada gaming establishment, and conspiring with others to accomplish these ends in violation of 18 U.S.C. §§ 2, 371, 1952, 2314 (1982). For reversal appellants argue that the district court erred in (1) refusing to grant their motions for  [**2]  judgment of acquittal (Travel Act violations), (2) upholding the validity of a search warrant issued by an allegedly partial magistrate, (3) admitting co -conspirators written statements, (4) admitting evidence in violation of appellants' confrontation rights, (5) permitting government witness Agosto to testify in separate installments, (6) excluding expert testimony, (7) admitting evidence of other crimes and bad acts, (8) giving a Pinkerton instruction to the jury, (9) refusing to grant their motions for dismissal of the conspiracy count on the grounds of prejudicial variance between the indictment and the government's proof, (10) denying their motions for severance, (11) refusing to dismiss on the grounds of statutory and constitutional speedy trial violations, and (12) refusing to grant their motions for acquittal because of insufficient evidence. Not all appellants join in each allegation of error. For the reasons discussed below, we affirm the judgments of the district court.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The Honorable Joseph E. Stevens, Jr., United States District Judge for the Eastern and Western Districts of Missouri.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  [**3] 

On November 5, 1981, eleven defendants were charged in a seventeen-count indictment with conspiracy and substantive offenses in violation of 18 U.S.C. §§ 2, 371, 1952, 2314. Charges against six of the eleven defendants were dismissed or disposed of in proceedings separate from the trial where the five appellants in this case were convicted. Defendant Nick Civella died before trial. Defendants Donald Joe Shepard, Billy Clinton Caldwell and Joseph Vincent Agosto entered guilty pleas before trial. (Agosto, now deceased, was the government's principal witness against the other defendants.) Defendant Carl Caruso participated in the trial for a short time and then entered a guilty plea. Defendant Peter Joseph Tamburello was acquitted.

 [*904]  Appellant Thomas was convicted on one count of conspiracy, six counts of interstate transportation of stolen property, and three counts of violation of the Travel Act. He was sentenced to a total of fifteen years in prison.

Appellant DeLuna was convicted of one count of conspiracy, seven counts of interstate transportation of stolen property, and five counts of violation of the Travel Act. He was sentenced to a total of thirty years in prison  [**4]  and probation for five years following the imprisonment.

Appellant Civella was convicted of one count of conspiracy, six counts of transportation of stolen property, and two counts of violation of the Travel Act. He was sentenced to a total of thirty years in prison.

Appellant Moretina was convicted of one count of conspiracy and three counts of interstate transportation of stolen property. He was sentenced to a total of twenty years in prison and five years probation following the imprisonment.

Appellant Chiavola was convicted of one count of conspiracy and one count of interstate transportation of stolen money. He was sentenced to a total of fifteen years in prison.

All appellants were assessed heavy fines and ordered to pay the costs of the prosecution and to make restitution to the Tropicana Hotel and Country Club.

During the period covered by the indictment (January 1, 1975, to April 1, 1979), the state of Nevada required that persons conducting gaming operations be licensed in accordance with state law and regulations. See Appendix. Any person who owned, managed, or operated a gambling casino, or received directly or indirectly a share of the moneys played therein,  [**5]  had to make his identity known to Nevada gaming authorities and had to be licensed. Key employees, that is, persons who had significant influence over casino management, were required to be licensed. Certain employees, including managers, were required to obtain work permits. Persons who had been convicted of felonies, had poor reputations, or were excluded by law from casinos, and others known to associate with such persons were not likely to be licensed. Donald Shepard and Billy Caldwell were licensed with respect to the Tropicana casino in Las Vegas. Carl Thomas was licensed with respect to his own casinos, Bingo Palace and Slots-of-Fun. None of the other defendants charged in the indictment was licensed or had been issued a work permit.

The government charged and sought to prove that the defendants conspired to gain control over the casino operations at the Tropicana Hotel and Country Club in Las Vegas, Nevada, in order to "skim" money from the casino by removing cash before it was counted or reported and to transport this skimmed money in interstate commerce. The evidence consisted primarily of the testimony of co -conspirator Joseph Agosto, tape recordings, notes made by DeLuna  [**6]  and other defendants, surveillance testimony by FBI agents, testimony of Tropicana officials, and stipulations. The events described below are based primarily on Agosto's testimony.

Agosto met with Carl DeLuna and Nick and Carl Civella in January 1975 to discuss means by which Agosto could infiltrate and obtain control of the Tropicana so that Agosto could eventually skim money from the casino. DeLuna and the Civellas told Agosto that they would see to it that a Teamsters loan to Tropicana's part-owner Deil Gustafson would be disapproved in order to facilitate Agosto's takeover. The Tropicana at the time was in serious financial trouble. Agosto purchased the Folies Bergere, the successful floor show at the Tropicana, and used this as a base to acquire influence over casino operations.

Agosto, a convicted felon, knew he could never be licensed by the Nevada gaming authorities. The Civellas were in the "Black Book" of persons excluded from Nevada casinos and therefore knew that they could not be licensed. Because Agosto and the Civellas could not be licensed, they agreed to use code names to "camouflage"  [*905]  their true identities and connections with the Tropicana.

Nick  [**7]  Civella instructed Agosto to keep DeLuna informed of his progress in infiltrating the casino. Agosto began to acquire great influence over the daily operations of the hotel and casino. Agosto reported this to DeLuna, who in turn informed the Civellas. Agosto frequently travelled from Las Vegas to Kansas City to meet with DeLuna, Moretina and the Civellas, who occasionally travelled to Las Vegas to discuss Agosto's progress.

At Agosto's request in 1975, Nick Civella was able to rid the Tropicana of competing "hidden" interests. Agosto, DeLuna, and the Civellas then decided to use Carl Thomas to take charge of the skimming at the Tropicana.

Later in 1975, Mitzi Briggs became part-owner of the Tropicana and Agosto's infiltration and exercise of authority ceased temporarily because of Briggs' distrust of Agosto. By 1977, however, Agosto was able to gain Briggs' confidence and by 1978, Agosto was effectively running the hotel and casino. Briggs never knew that any skimming was taking place.

Upon Carl Thomas' recommendation, Agosto hired Shepard as casino manager. Later Agosto hired Caldwell as assistant casino manager. Shepard and Caldwell were to do the actual skimming under Thomas'  [**8]  supervision.

In March 1978, Agosto and Thomas met or spoke with Nick Civella in Los Angeles and Civella ordered them to start skimming. In April 1978, 1,500 was skimmed by Shepard and transported to Kansas City by DeLuna.

In May 1978, Shepard hired Jay Gould as cashier to skim cash from the cashier's cage of the casino and to falsify fill slips to document the "loss" of cash. Signatures and initials of other casino employees were forged by Caldwell. Caldwell supervised Gould, who passed the skimmed money to Shepard. This money was skimmed before the casino owner or the Nevada gaming authorities knew of its existence.

From June through October 1978, Shepard, Caldwell and Gould skimmed over $40,000 a month and gave it to Agosto. Agosto then gave it to Carl Caruso, who transported the money to Kansas City and delivered it to Moretina. Caruso made at least eighteen trips between Las Vegas and Kansas City. Moretina gave Caruso $ 1,000 after each delivery. The remaining money was distributed to Joseph Aiuppa and Jack Cerone in Chicago. Anthony Chiavola, Sr., the nephew of the Civellas and a Chicago police officer, aided DeLuna and Nick Civella in the distribution of Aiuppa's and Cerone's  [**9]  shares. Moretina acted as DeLuna's assistant in dealing with Agosto and in receiving the skimmed money from Caruso.

By late September 1978, Agosto and the Civellas were concerned that Shepard or his subordinates might be doing "unauthorized" skimming on their own, thereby reducing their profits. At Agosto's suggestion, a "moratorium" on skimming was ordered by Nick Civella in the months of November and December 1978, so that Carl Thomas could do a study of the Tropicana to determine if unauthorized skimming was occurring. In these same months, Agosto sent $50,000 and $60,000 of his own money to the Civellas because they still demanded money. Agosto was later reimbursed for $30,000 of this amount by Shepard with skimmed Tropicana money.

On November 26, 1978, Agosto and Thomas flew to Kansas City to meet with the Civellas and DeLuna to discuss lifting the moratorium and more efficient ways of skimming. Skimming resumed in January 1979 and $80,000 in skimmed money was transported to Kansas City on February 14, 1979. Several defendants' homes were searched on that date by FBI agents pursuant to search warrants. The FBI seized $80,000 from Caruso. Notes (referred to during the trial  [**10]  as a "dairy" [sic]) and other items were seized from DeLuna and Tamburello.

From approximately June 1978 until March 1979, many telephones and meeting places of the defendants were subject to court-authorized electronic surveillance.  [*906]  Immediately following the searches, Agosto, the other defendants, Aiuppa, and Cerone engaged in a series of meetings and telephone conversations to assess the damage done by the searches. Evidence about these meetings and telephone conversations obtained by electronic and visual surveillance and from government witness Agosto was introduced at the trial.
Travel Act Violations

Appellants argue that the district court erred in refusing to grant their motions for judgment of acquittal on the ground that the government failed to prove an essential element of the conspiracy charged in count one of the indictment and of the substantive Travel Act violations, 18 U.S.C. § 1952. Appellants argue that the government failed to prove any criminal violations of Nevada gaming law. We disagree.

Count one of the indictment charged appellants and others with conspiring in violation of 18 U.S.C. § 371 from about January 1, 1975, to about April  [**11]  1, 1979, to travel in interstate commerce and to use facilities in interstate commerce

with the intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, namely: the management, operation, conducting, maintaining and carrying on of gaming operations of a licensed gaming establishment in Las Vegas, Nevada, that is, the Tropicana Hotel and Country Club, and the indirect receipt of moneys played therein, by persons who were not licensed or found suitable for licensing by, and whose interests in said gaming establishment had been concealed from, agencies of the State of Nevada, in violation of the Nevada Gaming Control Act, including Sections 463.130, 463.160, 463.165, 463.170, 463.200, 463.335, 463.339, 463.360 and 463.530 of the Nevada Revised Statutes, and regulations of the Nevada Gaming Commission promulgated thereunder, including Regulations 3.080, 3.100, 3.110, 8.010 and 15.1594-6, and to thereafter perform and attempt to perform acts to promote, manage, establish, carry on and facilitate the promotion, management, establishment, and carrying on of said unlawful activity in violation of  [**12]  Title 18, United States Code, Section 1952.

 

The indictment also alleged appellants and others conspired to "transport in interstate commerce moneys having a value in excess of $5,000, knowing the same to have been stolen, converted, and taken by fraud, in violation of Title 18, United States Code, Section 2314."

Appellants argue that the government proved only that an unlicensed show producer had assumed de facto control of some operations of the Tropicana Hotel through which he ultimately brought employees into the hotel to steal casino revenues. Appellants argue that theft is a crime in Nevada but not under the Nevada gaming laws. Appellants also argue that the operation or control of a gambling game without a license is not a criminal offense under Nevada law and that such conduct in violation of Nevada gaming regulations only cannot support a Travel Act violation.

Similar arguments involving the Nevada gaming laws and federal prosecution for violations of the Travel Act were rejected by the Sixth Circuit in a comprehensive opinion in United States v. Goldfarb, 643 F.2d 422, 426-32 (6th Cir.), cert. denied, 454 U.S. 827, 70 L. Ed. 2d 101, 102 S. Ct. 117, 102  [**13]  S. Ct. 118 (1981). The Travel Act, 18 U.S.C. § 1952, prohibits travel in interstate commerce or the use of facilities of interstate commerce to "promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity," which is further defined as "any business enterprise involving gambling . . . in violation of the laws of the State in which they are committed." "It is the violation of federal law which is the gravamen of a Travel Act offense." United States v. Goldfarb, 643 F.2d at 426 (citations omitted). As noted in United States v. Goldfarb, 643 F.2d at 426, which involved conduct similar to that alleged in the present  [*907]  case, "it is abundantly clear that as a predicate to a Travel Act conviction, absent a distinct violation of a law of the United States, the defendants must have engaged in some form of unlawful activity prohibited by the law of the State of Nevada."

We agree with the Sixth Circuit that "a violation of a Nevada Gaming Commission regulation could [not in and of itself] form the predicate state law violation required for a federal prosecution under the Travel Act." Id. at 429;  [**14]  cf. United States v. Gordon, 464 F.2d 357 (9th Cir. 1972) (violation of nonpenal regulations of state gaming commission insufficient for engaging in "illegal gambling business" in violation of 18 U.S.C. § 1855). However, according to the government's indictment and the district court's instructions, the unlawful activity under the Travel Act in the present case was not based upon violation of state regulations alone but also upon violation of the related Nevada statutes. See United States v. Goldfarb, 643 F.2d at 430.

Appellants also argue that the unlawful activity with which they are accused is not a crime under Nevada state law. The government argues that appellants violated Nevada state law by conducting gambling operations without the necessary licenses, Nev. Rev. Stat. § 463.160 (1)(a), and by indirectly receiving gambling moneys without the necessary licenses, id. § 463.160 (1)(c). Although there is no specific penalty for violation of these provisions, the "catch-all" section, id. § 463.360, which makes such a violation a gross misdemeanor, and thus a crime, would apply. See United States v. Goldfarb, 643 F.2d at 431; United States v. Polizzi,  [**15]  500 F.2d 856, 873 & n. 17 (9th Cir. 1974) ("Once a violation of a state criminal statute has been proved it is irrelevant whether that violation is classified as a felony or misdemeanor."), cert. denied, 419 U.S. 1120 (1975). The cited Nevada statutes are set forth in an appendix.
Validity of Search Warrant

Appellants argue that the search of the DeLuna residence authorized by the magistrate was invalid because the magistrate was not a neutral and detached judicial officer who could objectively assess whether probable cause existed. Specifically, appellants argue that the magistrate, while an Assistant United States Attorney from 1961 to 1971, received extrajudicial information about the Civellas and their associates. Appellants argue that during this ten-year period, Carl DeLuna and the Civellas were the subject of an investigation which included electronic surveillance. Further, appellants argue that, during the period the magistrate served as an Assistant United States Attorney, the magistrate (1) was privy to investigative reports which suggested that Carl DeLuna was engaged in anti-social behavior, (2) participated in and supervised the writing and presentation to  [**16]  the court of applications for search warrants relating to Carl DeLuna, (3) presented evidence before the Grand Jury, and (4) prosecuted appellant Carl Civella. Lastly, appellants argue that the magistrate had a long-standing working relationship with the affiant, FBI Agent Ousley, which added to the appearance of impropriety.

Every magistrate, judge and justice must "disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned." Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1329 (8th Cir. 1985); see Hall v. SBA, 695 F.2d 175, 178 (5th Cir. 1983); 28 U.S.C. § 455(a). Disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. In re United States, 666 F.2d 690, 695 (1st Cir. 1981); United States v. Poludniak, 657 F.2d 948, 954 (8th Cir. 1981), cert. denied, 455 U.S. 940, 71 L. Ed. 2d 650, 102 S. Ct. 1431 (1982).

A magistrate or judge must also disqualify himself or herself if "he [or she] has served in governmental employment and in such capacity participated as counsel  [**17]  . . . concerning the proceeding." 28 U.S.C.  [*908]  § 455(b)(3). If an indictment or investigation leading directly to the indictment began after a former prosecutor took office as a judge, he or she is not considered to have been "of counsel" and is not required by § 455 to disqualify himself or herself. Barry v. United States, 528 F.2d 1094, 1098-99 (7th Cir.), cert. denied, 429 U.S. 826, 97 S. Ct. 81, 50 L. Ed. 2d 88 (1976).

We hold that the magistrate was not required by § 455 to disqualify himself. The magistrate was not government counsel in this case. Appellants do not argue that the investigation which led to the present prosecution was related to the investigation and prosecution handled by the magistrate when he was an Assistant United States Attorney or that the magistrate was still in the United States Attorney's office when the present investigation began. Neither are there facts alleged which would cause a reasonable person, knowledgeable of all the facts, to believe that the magistrate was unable to impartially assess the existence of probable cause. Knowledge of and from prior investigation does not necessarily require recusal.

Appellants next argue  [**18]  that the search warrant was a "general warrant" and was invalid because it did not state with specificity the items to be seized. We do not agree.

Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice because less particularity can be reasonably expected than for goods (such as those stolen) whose exact identity is already known at the time of issuance.

 

United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir. 1976) (citations omitted). See also Andresen v. Maryland, 427 U.S. 463, 475-82, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). This lack of specificity is often encountered and has been expressly approved. United States v. Coppage, 635 F.2d 683, 687 (8th Cir. 1980); United States v. Williams, 633 F.2d 742, 745 n.5 (8th Cir. 1980); United States v. Dennis, 625 F.2d 782, 792 (8th Cir. 1980); In re Search Warrant Dated July 4, 1977, 187 U.S. App. D.C. 297, 572 F.2d 321, 328 n.4 (D.C. Cir. 1977), cert. denied, 435 U.S. 925, 98 S. Ct. 1491, 55 L. Ed. 2d 519 (1978). The pertinent part of the warrant in the present case authorized seizure of certain generic  [**19]  classes of items and "other means of transferring, distributing and concealing casino proceeds" in violation of the named statutes. The description of the items to be seized by generic classes was reasonably specific under the circumstances of the present case.

The government argues that appellants Civella, Moretina, and Chiavola lacked standing to object to the validity of the search warrant and the seizure of items pursuant to the search warrant. We need not decide this issue because DeLuna had standing to challenge the search of his house.
Admissibility of Writings Seized from Co-conspirators

Thomas argues that the notes or writings seized pursuant to a search warrant from the homes of DeLuna and Tamburello were improperly admitted under the co -conspirator statement exception to the hearsay rules. Thomas argues that the independent evidence presented by the government was insufficient to prove that the statements were made "in furtherance of" the charged conspiracy.

A statement, including a writing, is not hearsay under Fed. R. Evid. 801(d)(2)(E) if it is "a statement by a co -conspirator of a party during the course and in furtherance of the conspiracy." In United  [**20]  States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), this court stated that before an out-of-court declaration of a co -conspirator may be admitted against a defendant, the government must prove that (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statements were made during the course and in furtherance of the conspiracy. The district court determines the admissibility of the co -conspirators statement under Fed. R. Evid. 801(d) (2) (E) and must be satisfied that "it is more likely  [*909]  than not that the statement was made during the course and in furtherance of an illegal association to which the declarant and the defendant were parties." DeMier v. United States, 616 F.2d 366, 371 (8th Cir. 1980), citing United States v. Bell, 573 F.2d at 1044. In order to be made in furtherance of the conspiracy, a statement "must somehow advance the objectives of the conspiracy, not merely inform the listener [or reader] of the declarant's activities." United States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983) (citations omitted), cert. denied, 465 U.S. 1107, 80 L.Ed 2d 142, 104 S. Ct. 1613 (1984).

In the present  [**21]  case the district court conditionally admitted several cryptic writings containing code names, telephone numbers, and references to disbursements of moneys. At the close of the government's evidence, the district court made an explicit finding in the record, as required by United States v. Bell, that the government proved by independent evidence that the proffered writings were more likely than not made during the course and in furtherance of a conspiracy of which Thomas and other appellants were members.

In United States v. Singer, 732 F.2d 631, 636 (8th Cir. 1984) (citations omitted), this court, in discussing the admissibility of the co -conspirators statements, stated that