United States v. Riehl, 71-2133 to 71-2135.

• Decision Date: 09 May 1972
• Docket Number: No. 71-2133 to 71-2135.,71-2133 to 71-2135.
• Citation: 460 F.2d 454
• Parties: UNITED STATES of America v. Michael A. RIEHL et al., Appellants. Appeal of Arthur J. RINALDI. Appeal of James L. CHICK.
• Court: U.S. Court of Appeals — Third Circuit

460 F.2d 454 (1972)

UNITED STATES of America v. Michael A. RIEHL et al., Appellants. Appeal of Arthur J. RINALDI. Appeal of James L. CHICK.

Nos. 71-2133 to 71-2135.

United States Court of Appeals, Third Circuit.

Argued April 6, 1972.

Decided May 9, 1972.

Irving M. Green, New Kensington, Pa., for appellants Riehl and Rinaldi.

James E. McLaughlin, Pittsburgh, Pa., for appellant Chick.

Kenneth A. Bravo, John Elias, U. S. Dept. of Justice, Pittsburgh, Pa., for appellee.

Before ADAMS and GIBBONS, Circuit Judges and BECKER, District Judge.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This appeal brings before us for the first time the provisions of Title VIII of the Organized Crime Control Act of 1970. 18 U.S.C. §§ 1511, 1955 (1971); Act of October 15, 1970, Pub.L. No. 91-425, Tit. VIII, §§ 802(a), 803(a). 84 Stat. 936-40. Section 1511 prohibits conspiracies to facilitate an illegal gambling business by means of the obstruction of the enforcement of local laws.¹ Section 1955 prohibits the conducting of an illegal gambling business.² Appellants Riehl, Rinaldi and Chick were charged in Count One of the Indictment with violating § 1955 by operating an illegal intrastate gambling business in the City of Jeannette, Pennsylvania. A second count charged that Riehl, Rinaldi and Chick conspired in violation of § 1511 to obstruct the enforcement of the Pennsylvania anti-gambling laws with intent to facilitate the operation of an illegal gambling business in Jeannette conducted by James L. Chick. A third count charged that Riehl and Rinaldi conspired in violation of § 1511 to obstruct the enforcement of the Pennsylvania anti-gambling laws to facilitate the operation of an illegal gambling business in Jeannette conducted by Albert J. Abraham, an unindicted co-conspirator. In a jury trial all were convicted, Riehl and Rinaldi on all three counts and Chick on the first two. Each received a custodial sentence. On appeal all make these contentions:

(1) That Title VIII is not an exercise of congressional power authorized by the commerce clause and is hence unconstitutional.

(2) That Title VIII is an unduly vague criminal statute, and hence is void.

(3) That properly construed Title VIII did not reach the two small local gambling operations here involved because the number of persons established as having been involved in each of these operations was less than the number requisite for the application of §§ 1511 and 1955.

(4) That the Government made improper use, on the conspiracy counts, of the testimony of an informer.

To put these contentions in context one must start with the definition of an "illegal gambling business" which is found in identical terms both in § 1511 and § 1955:

"(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." 18 U.S.C. §§ 1511(b) and 1955(b).

If the gambling enterprise in question meets all three prerequisites, anyone who "conducts, finances, manages, supervises, directs, or owns all or part" of it commits a substantive violation of § 1955. If the enterprise meets all three prerequisites, conspiracies to obstruct local law enforcement with the intent to facilitate its operation violate § 1511 if:

"(2) one or more of such persons is an official or employee, elected, appointed, or otherwise, of such State or political subdivision; and

(3) one or more of such persons conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business."

The Commerce Clause Contention

Appellants contend that Congress lacked any rational basis for a finding that the intrastate illegal gambling businesses defined in §§ 1511 and 1955 have any effects upon interstate commerce. They urge that by purporting to provide a federal criminal penalty for an entirely local activity, Congress has exceeded the bounds implicit in Article I, § 8, and made explicit by the Tenth Amendment. We do not agree.³

In Part A of Title VIII Congress made Special Findings:

"Sec. 801. The Congress finds that illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof."

The House Report on the Organized Crime Control Act of 1970 states:

"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." H.R.Rep.No.91-1549, 91st Cong.2d Sess. (1970); 2 U.S.Code Cong. & Admin.News 1970 at p. 4029 (hereinafter House Report).

Congress reached the conclusion that illegal gambling involves the use of and has an effect upon interstate commerce as a result of various hearings on proposed legislation which ultimately became Title VIII.⁴ Illegal gambling has been found by Congress to be in the class of activities which exerts an effect upon interstate commerce. Where the class of activities is regulated and that class is within the reach of federal power, the courts may not excise as trivial individual instances of the class. Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L.Ed.2d 290 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). Congress has chosen to protect commerce and the instrumentalities of commerce not from all illegal gambling activities but from those it deems of major proportions. We may not substitute our judgment as to where the line might have been drawn. Nor may we sit in judicial review of congressional legislative findings.

Vagueness

Appellants contend that the definition of an "illegal gambling business" in §§ 1511 and 1955 is unconstitutionally vague. They urge that the word "conduct," in the clause "(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business" introduces an element of impermissible ambiguity.

As originally drafted Title VIII of Senate Bill 30 which became the Organized Crime Control Act of 1970 defined an illegal gambling business as one which "involves five or more persons who participate in the gambling activity." (emphasis added) This language was criticized because it might include mere bettors. See, e. g., the report of the Association of the Bar of the City of New York, reprinted in House Hearings at 325, and testimony in House Hearings at 191, 367. The House Amendment, which became law, substituted "conduct, finance, manage, supervise, direct or own" for "participate". The House Judiciary Committee Report explains:

"The term `conducts\' refers both to high level bosses and street level employees. It does not include the player in an illegal game of chance, nor the person who participates in an illegal gambling activity by placing a bet." House Report at 53, 2 U.S.Code Cong. & Admin.News 1970 at p. 4029.

The meaning seems perfectly clear to us. A street runner for a numbers business "conducts" that business in the sense that he carries it on. Indeed without him it could not be carried on. Before the gambling enterprise may be deemed of sufficient magnitude to warrant federal proscription it must be carried on by at least five people, including its street level employees, its managers and its owners. Its customers are excluded from the numerical count. All other participants are included. The statute is not vague.

Statutory Construction

Appellants contend that, assuming the statute is constitutional, properly construed it did not apply to their small local operations. This contention requires an exposition of the facts.

The government's chief witness, Albert J. Abraham, was an admitted gambler, and an informer. His testimony discloses that prior to January, 1970 he conducted a numbers operation in Jeannette which employed more than five runners and that the same operation continued thereafter.

Beginning in January Rinaldi, the Chief of Police, began to harass his operation in an effort to compel him to turn his numbers in to defendant Chick. Riehl, the Mayor, spoke to him about requiring all local numbers business to be turned in to Chick. Abraham yielded to this pressure and thereafter did business with Chick, and continued to do so until April 23, 1971. He also became an informer for a state law enforcement agency, and began surreptitiously to record conversations with the defendants. These recorded conversations corroborate his testimony that Riehl, Rinaldi and Chick were conspiring to facilitate Chick's gambling enterprise.

The foregoing evidence establishes all the elements necessary for conviction of the charge alleged in the second count of the Indictment. That count charges a conspiracy to obstruct the enforcement of the criminal laws of Pennsylvania with the intent to facilitate Chick's illegal gambling enterprise. Chick, Abraham, and Abraham's five runners...