Before BIGGS, Chief Judge, and KALODNER and GANEY, Circuit Judges.
Appellant, Mike Manos, was found guilty on all counts of a three count information by a jury of having willfully violated the special tax and registration provisions of the 1954 Internal Revenue Code, relating to taxes in accepting wagers. In Count One the defendant was charged with "being a person engaged in the business of accepting wagers and in receiving wagers for or on behalf of a person or persons engaged in the business of accepting wagers, and as such being required to pay the special tax imposed by Section 4411 of Title 26 United States Code, and did wilfully fail to pay said tax as required by said section; contrary * * *"*fn1; in Count Two as being a person so engaged, as indicated in Count One, he did fail to register with the official in charge of the internal revenue district, as well as with the District Director of the Internal Revenue Service at Pittsburgh, in violation of Section 4412 of Title 26 United States Code*fn2; and in the Third Count as a person so engaged, as indicated in Count One, which acts made him liable for payment of the special tax as imposed by Section 4411 of Title 26 United States Code, and his performance of these acts without having paid said tax, as required by that section. At the close of the Government's case, appellant made a motion for judgment of acquittal which was denied by the Court, but did not thereafter renew it at the close of all the testimony, even though, in their briefs and at argument, both counsel for the appellant and the appellee assumed he had. He was convicted and sentenced to pay a fine*fn3
The facts, briefly, show that Francis Larkin, an employee of the Intelligence Division of the Internal Revenue Service, on April 13, 1963, entered the Colonial Shoe Shine Parlor, operated by Mike Manos, the appellant, on East Washington Street in New Castle, Pennsylvania. After being there a few minutes, he saw a man walk up to the appellant and ask for "773 on the early race." Appellant pulled out a piece of white paper from his pocket, wrote the number down and then put the bet slip and money back into his pocket. On April 15, 1963, he again entered the shoeshine parlor of appellant, walked up to him, asked for "850 on the new stock for fifty cents." Appellant again pulled out a white piece of paper, wrote the number down and returned the paper and money to his pocket. On April 27th, he again returned to the shoeshine shop and asked appellant for "926 for fifty cents on the race." Appellant went through the same procedure of writing the number down on a piece of paper and placed the money and paper in his pocket.
For a proper understanding of the background of this testimony it is necessary to have, and the record shows, the meaning of the characteristic, special language of patois which the shadowy figures of the underworld indulge. As explained by Francis Larkin, a Government agent of long experience in the numbers game, a lottery play is usually an occurrence where an individual desires to play what is called a "number". A player can play the "number" on what is known as the old stock, or the new stock, the results of which are derived from certain activities on the New York Stock Exchange. He selects a number of three figures and bets a certain amount of money that these figures will be the winning number. As an example, he can play the three digits straight or combine them in a box which is to say he can play them in six different combinations. With respect to horseplaying, he can pick out a certain race, an early race or a late race, and the winning number is determined by the total amount of certain mutuel bets at a specified track for a specified race, that is, the winning number is either determined through the activities of the New York Stock Exchange or, with respect to horseracing, with the total amount bet on the parimutuel machines for a specified race at a specified track. The numbers game is divided into three parts, a writer, a pick-up man and a banker. A numbers writer is one who actually writes the number for the player and takes the bet from him and the pick-up man is the one who contacts the writer and picks up the plays for the day's activities, that is, the number slips and then, in turn, delivers them to the banker, and, as can be seen, the player or customer bets, in reality, against the banker, and the numbers writer and pick-up man are merely adjuncts to his business.
After describing this method of play and the manner in which the numbers game is carried out, Larkin testified that he had been in New Castle, Pennsylvania, from April 1st, to April 28th, 1963, periodically, during which time he had other places than the Colonial Shoe Shine Parlor under surveillance. He testified that he never received anything by way of receipts from appellant for the bets he placed.
This part of the record constitutes that portion thereof, concerning which, the first allegation of error is concerned with - the insufficiency of the evidence to warrant a conviction.
However, as has been indicated, the only motion for judgment of acquittal was made by the appellant at the close of the Government's case, which was denied, though it is to be remembered that this is an information and, unlike an indictment - which cannot be altered except by a Grand Jury - it could have been amended at any time by the United States Attorney to meet the objections which the defendant now alleges to be error by reason of a variation between the allegata and the probata. Having proceeded, therefore, to put on evidence by way of defense, appellant waived his motion for judgment of acquittal. United States v. Calderon, 348 U.S. 160, 164, n. 1, 75 S. Ct. 186, 99 L. Ed. 202 (1954); United States v. Kenny, 236 F.2d 128 (C.A.3, 1956), cert. den. 352 U.S. 894, 77 S. Ct. 133, 1 L. Ed. 2d 87; Lii v. United States, 9 Cir., 198 F.2d 109; Gaunt v. United States, 1 Cir., 184 F.2d 284. Never having renewed his motion for judgment of acquittal nor having excepted to the trial court's charge on the grounds of insufficiency of the evidence, he has failed to preserve his right to question the sufficiency of the evidence to support the charges in the information. Lucas v. United States, 9 Cir., 325 F.2d 867 (1963); Edwards v. United States, 8 Cir., 333 F.2d 588 (C.A.8, 1964); Gendron v. United States, 295 F.2d 897 (C.A.8, 1961); United States v. Ginzburg, 224 F. Supp. 129, 132 (E.D.Pa., 1963).
The lower court, in its opinion, goes only into the appellant's request for a new trial, which was denied, and no mention is made of a motion for judgment of acquittal - although appellant erroneously included it as one of the grounds in his motion for a new trial - for the obvious reason that it was not before the court.
Our next inquiry is to determine whether, upon a review of the entire record, the trial court, in order to prevent a miscarriage of justice - if "substantial rights of the appellant were affected - should have raised the question of sufficiency of the evidence on its own motion and, additionally, not having done so, shall this Court do so under what has been designated as the Plain Error Rule, 52(b)*fn4
It is to be remembered that Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., sets forth the time and place for the making of objections by counsel to the charge of the court, the general rule being that, lacking compliance with this provision, the defendant is precluded from any reviewing action by this Court. United States v. Kaadt, 7 Cir., 171 F.2d 600; Felton v. United States, 83 U.S.App.D.C. 277, 170 F.2d 153. In the ends sought to be attained, this rule is quite similar to Rule 51 of the Federal Rules of Civil Procedure*fn5, whose purpose is to require objections in order that the trial judge may be advised of any error he has committed and the opportunity for correction. Stilwell v. Hertz Drivurself Stations, Inc., 3 Cir., 174 F.2d 714; Alcaro v. Jean Jordeau, 3 Cir., 138 F.2d 767, 771*fn6
An examination of the cases reveals that, while a general rule may not be laid down, definitive of plain error, "affecting substantial rights [which] may be noticed", since the varying factual context of the cases makes its persuasive only, dependent upon the impact of the offending error thereon, nevertheless, certain guidelines have been laid out which are helpful in our examination here.
The Court, in United States v. Vasen, 7 Cir., 222 F.2d 3, made a scholarly discussion of the subject and held, under the circumstances there presented, no such error as affected the substantial rights of the defendant was committed. There, the Judge, after the jury had been sworn, made certain comments to them, before they had received any evidence in the case, to which no objection was taken by counsel, and in refusing to invoke the Plain Error Rule, held "The error must be such as would result in manifest miscarriage of justice or affect seriously the fairness of judicial proceedings." This seems to be the general criterion which the courts have followed. United States v. Bazzell, 7 Cir., 187 F.2d 878; Smith v. United States, 9 Cir., 173 F.2d 181; Robertson v. United States, 84 U.S.App.D.C. 185, 171 F.2d 345; Benson v. United States, 5 Cir., 112 F.2d 422; United States v. Lawrenson, 4 Cir., 298 F.2d 880, 884.
An examination of the statutes, which have been adverted to heretofore, §§ 4401, 4411, 4412, 4421, 26 U.S.C.A., reveals there is a differentiation between a banker and numbers writer, that is between a person who is engaged in the business of accepting wagers, a banker and a receiver, one who receives wagers for or on behalf of any person. This differentiation is set out in United States v. Calamaro, 354 U.S. 351 at 353, 77 S. Ct. 1138, 1 L. Ed. 2d 1394. While, in that case, under the facts there obtaining, the Court held that the acceptor and receiver were labels which could be interchanged - were different sides of the same coin - by reason of the fact that the particular problem involved was whether or not a pick-up man who picked up the slips from a numbers writer or receiver and carried them to the banker, was an individual who came within the intendment of the statute, making him criminally liable. The Court held he was not. It is submitted, United States v. Calamaro, supra, is not to be construed as holding that no differentiation obtains in the various sections of the statute here in question. This for the reason that with respect to a banker, the person against whom the player bets, must pay a 10% excise tax on the gross amount of the wagers he receives, pursuant to § 4401 (a), as well as a special tax of $50 per year, as set forth in § 4411, and, additionally, he must register and furnish certain information to the Internal Revenue District in which he is located, § 4412 (a). However, with respect to a person who receives wagers, a writer for or on behalf of a person so engaged in the business of accepting wagers, he is subject only to the $50 special tax and the registration requirements for a writer are much less rigorous than for bankers. This is so because in the registration prescribed in § 4412(a) (2), which is that for a banker, the information which he must give is far more detailed than that for a receiver or writer, as set forth in § 4412(a) (3). This differentiation was recognized in United States v. Pepe, 198 F. Supp. 226, aff'd per curiam by this Court 1964, 33 ...