325 F.2d 793 (9th Cir. 1963), 18452, Turf Center, Inc. v. United States

Docket Nº:18452.
Citation:325 F.2d 793
Party Name:TURF CENTER, INC., Allen, A. Goldberg, Milton Hyatt and Myer Mayor Fox, Appellants, v. UNITED STATES of America, Appellee.
Case Date:December 10, 1963
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 793

325 F.2d 793 (9th Cir. 1963)

TURF CENTER, INC., Allen, A. Goldberg, Milton Hyatt and Myer Mayor Fox, Appellants,


UNITED STATES of America, Appellee.

No. 18452.

United States Court of Appeals, Ninth Circuit.

December 10, 1963

Rehearing Denied Jan. 14, 1964.

Page 794

Murray B. Guterson, and Max R. Nicolai, Seattle, Wash., for appellants.

Brockman Adams, U.S. Atty., and David J. Dorsey, Asst. U.S. Atty., Seattle, Wash., for appellee.

Before MERRILL and DUNIWAY, Circuit Judges, and TAYLOR, District judge.

TAYLOR, District Judge.

The appellants were convicted in the United States District Court for the Western District of Washington, Northern Division, on four counts of an Indictment, each count charging a violation of Title 18 U.S.C. § 1952. 1 They were charged as principals under 18 U.S.C. § 2. Each count is identical except for the date on which the offense was alleged to have been committed. 2

Page 795

The record discloses that in May, 1962, the appellants purchased a business in Seattle, Washington, known as the Turf Smoke Shop, Inc., where among other things, there was conducted 'pull-tab' games. Admittedly this operation involved betting and wagering on sporting events, occurring from time to time throughout the United States, in violation of the anti-gambling laws of the State of Washington. After the appellants purchased the business it was operated under the name of Turf Center, Inc., in the same manner as it had been operated. There was located in and upon the premises of this enterprise a Western Union Telegraph Company wire service which formed a loop through Chicago, Illinois, where the scores and results of various national sporting events were correlated and dispatched to the Turf Center in Seattle. This wire facility was used by appellants to obtain up-to-the-minute reports of scores and results while sporting events were in progress and at their termination; all for the purpose of promoting and facilitating the betting and wagering games being conducted by appellants.

Appellants have specified eight errors, none of which has merit. We consider them in the order assigned.

Under Specification of Error No. 1, appellants contend that 18 U.S.C. § 1952 violates the due process clause of the Fifth Amendment to the United States Constitution and a portion of the Sixth Amendment because the application of the statute is vague and its language fails to apprise a man of common intelligence of what conduct he must avoid to be certain he does not run afoul of its provisions.

A statute meets the standard of certainly required by the Constitution if its language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1948); Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 (1941). Neither the word 'facilitate' nor the phrase 'any facility' are vague, indefinite or uncertain as contended. See United States v. Smith, 209 F.Supp. 907, 918 (D.C., Ill., 1962); United States v. Barrow, 212 F.Supp. 837, 840 (D.C.Pa., 1962); and United States v. Teemer, 214 F.Supp. 952, 956 (D.C.Va., 1963). The argument that the word 'involving' creates vagueness because it leaves uncertain and indefinite both the degree and remoteness of the involvement in gambling required of the business enterprise is without merit. The fact that in some cases it may be difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define a criminal offense. United States v. Petrillo, supra. Finally, appellants' argument that the word 'gambling' refers to gambling as it was known to the common law and that it does not have reference to the phrase 'offenses in violation of the laws of the State in which they are committed or of the United States' leads to an absurd result, especially in the light of the statute's legislative history.

The statute meets the standard of certainty required by the Constitution. The case of Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948) and similar cases relied on by appellants are inapposite.

By appellants' second Specification it is claimed that Title18 U.S.C. § 1952 is unconstitutional because it denies equal protection of the laws on the theory that, if read to apply only in states where gambling is illegal, residents of such states are discriminated against and hence denied equality under the law guaranteed by the due process clause of the Fifth Amendment.

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Legislation which constitutes an exercise by Congress of its plenary power over commerce is not repugnant to the due process clause of the Fifth Amendment merely because of variation in State laws. Clark Distilling Company v. Western Maryland Railway Company, 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1916). Cf. United States v. Ryan, 213 F.Supp. 763, 766 (D.C.Colo., 1963).

Specification No. 3 attacks Counts V, VII, IX, and XI, the counts on which appellants were convicted, as being obscure and vague in violation of Rule 7(c) Federal Rules of Criminal Procedure. 3

It will be noted that each of these counts is substantially in the words of Section 1952, the statute in question. Appellants argue that the precise nature of the gambling offenses should have been set forth in detail in order to be properly apprised of the offense charged. The violation of the State statutes was an element of the offense and not the gravamen of the charge.

An indictment is sufficient if it contains the elements of the offense contended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92 (1953). 4

It cannot be convincingly argued here that the statute does not embody all the elements of the offense nor that the counts questioned in the indictment do not substantially adhere to the wording of Section 1952. Appellants were sufficiently apprised of what they had to meet by the allegations in each of the counts. The case of Russell v. United States,369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), relied on by appellants, represents...

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