opinion: UNITED STATES of America v. Michael J. PEPE et al. Appeal of Edward D. CARUCCI.
  No. 74-1662.
  United States Court of Appeals, Third Circuit.
  Argued Nov. 1, 1974.
  Decided Feb. 24, 1975.
  Ralph F. Keil, U. S. Atty., by Bruce L. Thall, First Asst. U. S. Atty., for appellee.
  Henry N. Herndon, Jr., Morris, James, Hitchens & Williams, Wilmington, Del., for appellant, Edward D. Carucci.
  Before FORMAN, ALDISERT and ROSENN, Circuit Judges.
  OPINION OF THE COURT
  FORMAN, Circuit Judge.
  Edward D. Carucci and five co-defendants, Anthony P. DiGiacomo, Michael J. Pepe, Thomas Alfred Capodanno, Michael Niland and Eugene Papaleo, were tried in the United States District Court for the District of Delaware under a two-count indictment charging them in the first count with violating the federal gambling statute, 18 U.S.C. § 1955, and in the second count with conspiring to violate that statute, 18 U.S.C. § 371. The first count of the indictment was dismissed on the Government’s motion. Mr. Pepe pleaded guilty to the second count, but the remaining five defendants, having waived a jury, were tried to the Court. Pursuant to Federal Rule of Criminal Procedure 23(c), the District Court entered specific findings of fact and law under which Messrs. Capodanno and Papaleo were acquitted and Messrs. DiGiacomo, Niland and Carucci were found guilty of conspiring to operate a gambling business which, inter alia, involved five or more participants.
  Messrs. DiGiacomo and Carucci filed timely appeals. Mr. Carucci argued that, although he was admittedly a participant in gambling activities, it was error to convict him because he neither expected nor received economic gain or other compensation for his participation.
  Mr. DiGiacomo, in his appeal, took the position that his conviction could not be sustained because the Government failed to prove beyond a reasonable doubt that the object of the conspiracy was a federal offense. More specifically, Mr. DiGiacomo argued to another panel of this court that the evidence presented at trial failed to show that he anticipated or reasonably should have expected that five persons were involved in the underlying gambling operation. Mr. DiGiacomo’s conviction was reversed, the panel concluding that the evidence at trial established only that four persons (not the five required by § 1955) were involved in the gambling business and, therefore, no conspiracy to violate § 1955 existed. It was reasoned that
  . to convict a defendant of conspiracy to violate § 1955, it is incumbent upon the Government to prove an agreement which contemplates the commission of a crime and that such crime is in fact and law a federal offense. As such, the overall objective of the conspiracy agreed to must encompass, inter alia, an intention or understanding that five or more persons will be involved in an illegal gambling operation.
  Although Mr. Carucci has not raised the issue of the Government’s failure to prove the requisite number of participants in the underlying offense, his conviction, like that of Mr. DiGiacomo, was predicated upon the District Court’s finding that a fifth unnamed individual participated in the gambling operation. Specifically, in its Findings of Fact No. 8 and No. 29, respectively, the District Court concluded:
  From at least the end of 1971 to May of 1972 there were five or more persons who participated in conducting the gambling business headed by Michael Pepe. In addtion to Michael Pepe and his line source, Michael Ni-land, Anthony DiGiacomo and Edward Carucci participated by conducting bookmaking operations which regularly and continuously supplied the Pepe book with substantial lay-off wagers, [emphasis added]
  During that period, Mr. Carucci was aware of the participation of at least the following individuals in the Pepe gambling business: himself, Michael Pepe, Mr. Pepe’s line source, Anthony DiGiacomo and Michael Niland. [emphasis added]
  These conclusions that five persons participated in the business, and similar conclusions with respect to Mr. DiGiacomo, were implicitly based on the District Court’s Finding of Fact No. 3:
  Mr. Pepe had an arrangement with an individual [i. e. his unnamed “line source”] other than one of the named defendants pursuant to which he received line information for use in his business.
  It is this latter determination which the DiGiacomo panel of this court found to be “completely devoid of minimum evidentiary support,” resulting in clear error and a reversal of Mr. DiGiaeomo’s conviction.
  Mr. Carucci’s failure to challenge the District Court’s specific findings of fact does not preclude this court from reviewing them. Appellate courts may notice errors apparent on the face of the record, but not urged by either party, in order to prevent a manifest miscarriage of justice. United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971); United States v. Kemble, 197 F.2d 316, 322 (3d Cir. 1952). We, therefore, have examined the record and find ourselves in agreement with the determination that Specific Finding of Fact No. 3 is not supported by the evidence produced at trial.
  There being established only four participants, Messrs. Pepe, Niland, DiGiacomo and Carucci, in the gambling business, we conclude that the Government failed to prove that the object of the conspiracy was a federal offense.
  Appellant Carucci’s conviction on the conspiracy count, Count II of the indictment, will be reversed. Under this disposition of the case it becomes unnecessary for us to decide Mr. Carucci’s contention that an uncompensated participant may not be convicted of conspiring to violate the federal gambling statute.
  . 18 U.S.C. § 1955 provides, in pertinent part:
  (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
  (b) As used in this section- — •
  (1) “illegal gambling business” means a gambling business which—
  (i) is a violation of the law of a State or political subdivision in which it is conducted;
  (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
  . Fed.R.Crim.P. 23(c) provides:
  In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
  . See n. 1, supra, for the other elements of an “illegal gambling business” as defined by § 1955(b)(1).
  . Judges Aldisert, Weis and Garth.
  . United States v. Pepe et al. (Anthony P. DiGiacomo, Appellant), 512 F.2d 1129 (3d Cir., 1975).
  . The District Court’s Finding of Fact No. 19 recites:
  During that period [from the end of 1971 to early May of 1972], Mr. DiGiacomo was aware of the participation of at least the following individuals in the Pepe gambling business: himself, Michael Pepe, Mr. Pepe’s line source, Edward Carucci and Michael Ni-land.
  . United States v. Pepe et al. (Anthony P. DiGiacomo, Appellant), 512 F.2d 1129 (3d Cir. 1975).
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.