United States v. Harris

• Decision Date: 19 June 1972
• Docket Number: No. 71-3586 Summary Calendar.,71-3586 Summary Calendar.
• Citation: 460 F.2d 1041
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil Eugene HARRIS, a/k/a "Red" Harris, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 1041 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Cecil Eugene HARRIS, a/k/a "Red" Harris, et al., Defendants-Appellants.

No. 71-3586 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

May 22, 1972.

Rehearing Denied June 19, 1972.

Emmett Colvin, Jr., Dallas, Tex., William J. Gillespie, Travis D. Shelton, Lubbock, Tex., for defendants-appellants.

Eldon B. Mahon, U.S. Atty., Fort Worth, Tex., Willis Taylor, Asst. U.S. Atty., Lubbock, Tex., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

A jury found all six appellants guilty of illegal gambling in violation of 18 U.S.C. § 1955. In their appeal they assert the following four claims of error:

1.) That 18 U.S.C. § 1955 is an unconstitutional invasion by Congress on the powers reserved to the states by the Tenth Amendment of the United States Constitution;

2.) That the evidence was insufficient to sustain the convictions because there was no proof that five or more persons participated in the crime as required by 18 U.S.C. § 1955;

3.) That the Trial Court erred in overruling appellants' motion to suppress and limit evidence obtained pursuant to a warrant supported by an affidavit which was insufficient to establish probable cause; and

4.) That certain statements of appellant Harris were admitted into evidence in violation of appellant's Fifth and Sixth Amendment rights.

We find no merit in any of these contentions and the judgments of conviction are affirmed.

Appellants operated a gambling casino, known as The Redmen's Club, in Hockley County, Texas, where games of craps and blackjack were conducted. The operation was located in a house which, in addition to a kitchen and several smaller rooms, consisted of a game room where the gambling occurred and a dining room where the customers were served free meals and drinks. One witness described the operation as "just like Las Vegas." A large sign at the gate announced that the premises were operated under the auspices of a fraternal order known as "The Improved Order of Redmen, Seminole Tribe No. 7," which is a legitimate, nationwide organization originally chartered in 1906 by special act of the United States Congress, but which had no connection whatsoever with appellants' gambling activities. The club was open six nights a week and was in substantially continuous operation for a period in excess of thirty days. Appellants conducted the operation in a businesslike atmosphere. A bank account was maintained in a national bank for the purpose of paying employees of the club and paying various business and operating expenses. Insurance was maintained on the improvements to the real property where the club was located. Telephone service was supplied to the club by General Telephone Company of the Southwest under the listing of Improved Order of Red Men Lodge. Gas purchases were made from Plains Gas, Incorporated, under the account of I.O.R.M. Lodge. Numerous witnesses testified to the existence and nature of the gambling activities conducted. Gambling paraphernalia seized at the club was introduced into evidence at the trial of this cause.

Defendant Ronnie Jones was the manager of the club. He sold and bought chips, hired employees, furnished credit for customers, and signed invoices for the delivery of meat to the club.

Defendant Jackie Hawkins was a dealer in card games. He sold chips and signed invoices for delivery of meat to the club.

Defendant Cecil Harris greeted customers at the door. He cashed chips for customers and signed invoices for gas delivered to the club and lumber purchased by the club.

Defendant Phillip Wolfe was a dealer in the game room. He sold chips and had the right to authorize credit to the customers.

Defendant Houston Littlefield was a guard or watchman for the business. Littlefield was on the premises at all times. He lived there and used the premises for his domicile.

Defendant Marlin Bumpass was a dealer at the club. He arrived late and relieved other dealers. He dealt at the blackjack games and was stickman at the crap table every night, representing the house.

I.

18 U.S.C. § 1955 IS NOT UNCONSTITUTIONAL, IN VIOLATION OF THE TENTH AMENDMENT, AND IS A VALID AND CONSTITUTIONAL EXERCISE OF CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE OF THE UNITED STATES CONSTITUTION.

Appellants complain that 18 U.S.C. § 1955,¹ pursuant to which they were convicted, is not an appropriate exercise by Congress of the power to regulate interstate commerce under Article I, Section 8 of the United States Constitution which gives Congress the power to regulate interstate commerce. The Supreme Court held in Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964), that Congress must have a rational basis for finding that the chosen method is necessary for the protection of interstate commerce:

"The activities that are beyond the reach of Congress are `those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.\' Gibbons v. Ogden, 9 Wheat. 1, 195, 6 L.Ed. 23, 70 (1824). This rule is as good today as when Chief Justice Marshall laid it down almost a century and a half ago."

Id. at 302, 85 S.Ct. at 383. See also Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971).

Appellants assert that the legislative history of Section 1955 is barren of factual material that would support a finding of the requisite connection between illegal gambling per se and interstate commerce. Thus, they argue, the right to regulate such purely local gambling is expressly reserved to the states by the Tenth Amendment.² See, e. g., Kesler v. Department of Public Safety, etc., Utah, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962); Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed. 2d 1393 (1958); Marshall v. United States, 9 Cir., 1966, 355 F.2d 999. We disagree.

Section 1955 is part of Title VIII of the Organized Crime Control Act of 1970. Section 801 of Title VIII of the Act states the following finding in unambiguous fashion:

"The Congress finds that illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof."

Pub.L. 91-452, Title VIII, § 801, Oct. 15, 1970, 84 Stat. 922. Appellants contend that such "perfunctory statements ... cannot, alone, serve as the necessary rational basis for the statute," citing Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), where the Supreme Court examined in detail the economic, financial, and social setting as presented to Congress in numerous reports and hearings concerning the background of 18 U.S.C. § 891. A study of the legislative history of the Organized Crime Control Act of 1970, however, shows beyond question that Congress had ample evidence to support the finding announced in Section 801.

In its Statement of Findings and Purpose made prior to the passage of the Organized Crime Control Act of 1970, the Congress declared and found among other things that "organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling...." U.S.Code Cong. and Admin. News, 1970, p. 1073.

The Congressional Record is filled with evidence to support the conclusions, parts of which are set out in a footnote.³ In a letter to Chairman Celler of the House Committee on the Judiciary, who had requested the views of the Department of Justice on various provisions of the Organized Crime Control Act of 1970, the Department of Justice noted that Title VIII of the Act was properly predicated "squarely upon the tested and proven constitutional basis which the commerce clause affords" and that it was "directed solely to the objective of providing for more effective Federal prosecution of illegal gambling—the life-line of organized crime." U.S.Code Cong. and Admin.News, 1970, p. 4064. In the same letter it was stated that "Federal jurisdiction under title VIII rests upon specific findings of the Congress that illegal gambling, in diverse ways, involves the widespread use of interstate commerce, and affects interstate commerce." Id.

H.R.Rep.No.91-1549, accompanying Senate Bill No. 30 which was adopted as the Organized Crime Control Act of 1970, Pub.L. 91-452, contains the following statement with reference to Title VIII:

"The intent of section 1511 and section 1955, below, is not to bring all illegal gambling activity within the control of the Federal Government, but to deal only with illegal gambling activities of major proportions. It is anticipated that cases in which their standards can be met will ordinarily involve business-type gambling operations of considerably greater magnitude than simply meet the minimum definitions. The provisions of this title do not apply to gambling that is sporadic or of insignificant monetary proportions. It is intended to reach only those persons who prey systematically upon our citizens and whose syndicated operations are so continuous and so substantial as to be of national concern, and those corrupt State and local officials who make it possible for them to function."

U.S.Code Cong. and Admin.News, 1970, p. 4029.

The case of Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), curiously relied upon by appellants, provides direct support for the Government's position. Perez involved a congressional finding of the interstate impact of "loan sharking" operations. The Supreme Court noted that Congress in seeking to regulate loan-shark activity found that extortionate credit transactions "are carried on to a substantial extent in interstate and foreign commerce and through the means and instrumentalities of such commerce." Id. at 147 n. 1, 91 S.Ct. at 1358 n. 1. Congress there found that "Even where extortionate credit...