12 Mass. App. Ct. 978

December 3, 1981

The defendant has appealed from his conviction on an indictment which charged him with conspiring with one Dylewicz "to register bets upon the results of trials and contests of skill, speed and endurance of man, to wit: athletic contests in violation of Mass. Gen. Laws, c. 271, Sec. 17."

1. We are of opinion that the indictment sufficiently charges a conspiracy to register bets in the manner proscribed by the portion of Section 17, as appearing in St. 1968, c. 116, which is incorporated in the indictment by reference and which states, "Whoever keeps a building or room . . . with apparatus, books or any device, for registering bets . . . upon the result of a trial or contest of skill, speed or endurance of man . . . or upon the result of a game, . . . being such keeper, occupant, person found or person present, as aforesaid, registers such bets . . . ." Contrast Commonwealth v. Chagnon, 330 Mass. 278, 281-282 (1953).

2. The denial of the defendant's motion under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), made at the conclusion of the evidence (the defense presented no evidence) and after the verdict raises the question whether the verdict was warranted on the evidence. Commonwealth v. Latimore, 378 Mass. 671, 678-679 (1979). The Commonwealth's evidence came from records of intercepted telephone conversations and the testimony of two State police officers, experts in the field of gaming. The officers gave their opinions as to the meaning of the telephone conversations which were obtained through wiretaps and of certain exhibits in evidence. The opinions were necessary, as the import of the evidence of the intercepted telephone communications would be of little meaning to the average juror.

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Our examination of the transcript and the exhibits leads us to the conclusion that the only findings warranted by the evidence were that the defendant and Dylewicz were two friendly competitors operating sports betting businesses at a high level and, as one officer testified, "You have [here] two people who are in control of two separate illegal gaming organizations . . . . They have their own people that book for them . . . . These people are at the top, they're comparing notes. They live a co-existence and don't want to infringe on anybody else's business . . . . They don't want to get hurt. The other guy to help him, he helps him, because tomorrow he may have information on something else for the same conversations." The other officer testified that the two men were from separate operations discussing "lines." ("Lines" refer to the point spread which, we gather, is used in the place of odds on a favorite team, i.e., if the line on a game is seven and a bet is placed on the favorite, that team must win by a margin of seven points in order for the bettor to win.) The officer further testified that "they don't want to get burnt either, so because of the geographic location in the area of the state working they separate operations and they want their lines fairly close so they won't get burnt, the bettors won't jump from one to the other." Although the information passed between the two men could have been helpful in their apparently well established gaming operations by guarding them against "getting burnt" because of bad information on a line and could be useful to them as a means of avoiding disparate odds being offered to bettors which could result in their shopping around, [Note 1] there is no indication that the two agreed to employ any particular line as binding on them in accepting bets. Moreover, there is nothing in the evidence which would warrant a jury in finding an agreement to do anything toward the object of registering bets or to do anything else made unlawful by G. L. c. 271, Section 17. Contrast Commonwealth v. Nelson, 370 Mass. 192, 196-197 (1976). We need not again discuss the elements of conspiracy which have often been stated in decided cases, as to which see, among others, Commonwealth v. Dyer, 243 Mass. 472, 483-485 (1922), cert. denied 262 U.S. 751 (1923); Commonwealth v. Gill, 5 Mass. App. Ct. 337, 340, 348-349 (1977); Commonwealth v. Cook, 10 Mass. App. Ct. 668, 670-671 (1980). The essence of a conspiracy is an unlawful agreement. Commonwealth v. Judd, 2 Mass. 329, 337 (1807). Commonwealth v. Chagnon, 330 Mass. at 280. Commonwealth v. Soule, 6 Mass. App. Ct. 973 (1979). Commonwealth v. Cook, supra. As the Commonwealth failed to establish the essential

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element of an agreement, the defendant's motion for a required finding of not guilty should have been allowed.

Judgment reversed.

Verdict set aside.

Judgment for the defendant.


[Note 1] "Bookmakers may cooperate with one another by keeping their `lines' consistent in order to avoid `middling,' whereby a bettor, because there are two different point spreads on a single event, may bet and win on both competing teams." United States v. George, 568 F.2d 1064, 1067 n.4 (4th Cir. 1978).