United States v. Bridges, 73-3045.
Decision Date | 06 May 1974 |
Docket Number | No. 73-3045.,73-3045. |
Citation | 493 F.2d 918 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Phillip Wayne BRIDGES et al., Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
Wesley R. Asinof, Atlanta, Ga., for defendants-appellants.
Ira DeMent, U. S. Atty., David B. Byrne, Jr., Wade B. Perry, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.
From mid-August 1972 until November 9, 1972, four of the appellants (Bridges, Brogdon, Butler and Gilbert) operated a gambling establishment located just outside Dothan, Alabama. Gambling, consisting primarily of poker playing and crapshooting, took place during this period of time on approximately two nights a week. The fifth appellant, Sammy K. Register, became involved no earlier than October 24, 1972. All five were arrested on November 9, 1972, and were subsequently convicted in a trial to the court of violating 18 U.S.C. § 1955(a).1 On appeal the issue is whether appellants were engaged in a federally proscribed "illegal gambling business" as defined by § 1955(b)(1). We hold that the gambling activity in the case at bar did not violate § 1955(a), because five persons were not involved in the business for a period in excess of thirty days as required by § 1955(b)(1)(ii) and (iii). The convictions are accordingly reversed.
Enacted as a part of Title VIII of the Organized Crime Control Act of 1970, 18 U.S.C. § 1955 makes it a federal crime for one to conduct an illegal gambling business, which is defined as follows:
18 U.S.C. § 1955(b)(1).2 Appellants admit that their activity was violative of Alabama law. Also conceded is that the enterprise was in operation for a period in excess of thirty days. But because Register — the fifth man — was involved for no longer than eighteen days, appellants contend that their activity does not come within the class of gambling businesses prohibited by § 1955. For a gambling business to be an illegal gambling business as defined by § 1955(b)(1), it must, appellants argue, be conducted by a minimum of five persons for a period in excess of thirty days. If the statute is construed in this manner, the facts here would not establish a violation of federal law.
As expected, the government reads the statute differently. Its position is apparently that, although five persons must be involved at some point in time, the business itself does not have to be conducted by five persons for more than thirty days in order to be illegal under federal law. While agreeing that a gambling business is violative of federal law only if all three elements of § 1955(b)(1) are met, the government does not read these requirements as overlapping or cumulative of each other, but instead considers each as relating only to "a gambling business" as this phrase appears prior to the enumeration of the three requirements.
Although it seems to us that the most reasonable construction of the statute is that sought by appellants, the government's position is not definitely precluded by the manner in which the statute is drafted. At best, the definition of "an illegal gambling business" contained in § 1955(b)(1) is susceptible of at least two reasonable, but differing, constructions and is therefore ambiguous.
The government cites United States v. Smaldone, 485 F.2d 1333, 1351 (10th Cir., 1973), as direct authority for its reading of the statute. The defendants there were involved in a bookmaking operation covering such sporting events as football, basketball and baseball and spanning two time periods — from the fall of 1970 until June 30, 1971, and from the fall of 1971 until the football season ended in January 1972.3 Evidence produced at trial established that well above the minimum, five persons were active in running the gambling operation. That portion of the opinion relied on by the government reads:
Id. at 1351. This statement does not resolve the problem in the case at bar because these observations were made in the context of refuting the defendants' arguments that the evidence was insufficient to convict them of violating the statute. Here we are concerned with the gambling operation itself, the question being whether it is within the class Congress sought to regulate by § 1955. This was not the question being considered in Smaldone as the court's concluding statement illustrates: Id.
The appellants in our case have raised a question more basic than whether the evidence was sufficient to convict them of violating § 1955; they assert that the activity in which they were engaged, although illegal under Alabama law, was not a federal offense. Of necessity, this is an underlying issue in all § 1955 prosecutions. To date, however, the precise problem in our case — whether the gambling business must operate with five people for a period in excess of thirty days — has not been decided. The most frequently litigated issue, other than the constitutionality of the statute, has been whether the persons admittedly involved played a substantial enough role in conducting the business to be included as one of the five persons necessary to satisfy the requirement of § 1955(b)(1) (ii). See United States v. Harris, 460 F.2d 1041 (5th Cir., 1972) cert. den. 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed. 2d 130; United States v. Smaldone, supra; United States v. Meese, 479 F.2d 41 (8th Cir., 1973); United States v. Ceraso, 467 F.2d 653 (3rd Cir., 1972); United States v. Becker, 461 F. 2d 230 (2nd Cir., 1972); United States v. Riehl, 460 F.2d 454 (3rd Cir., 1972). After examining the legislative history of § 1955, the courts have uniformly concluded that almost anyone who works in the gambling enterprise counts towards making up the minimum five. See, e. g., United States v. Harris, supra, 460 F.2d at 1049; United States v. Ceraso, supra, 467 F.2d at 657; United States v. Becker, supra, 461 F.2d at 232. In reaching this conclusion the courts have not added a judicial gloss to the statute that answers the question raised here. This absence of authority is due in part to the relatively short time the statute has been on the books, but, if the reported cases are indicative, it is also due to the government's not having been concerned with gambling operations as close to the line as the one here.4 Because the ambiguous definition of an illegal gambling business is unclarified by decisional law, we must look to the legislative history of § 1955 to see what it tells us about the relationship between (b)(1) (ii) and (iii).
Although the legislative history does not provide a definite answer to the question, it indicates that § 1955 was aimed at large scale gambling businesses. The following statement is typical:
H.R.Report 91-1549, 91st Cong. 2nd Sess., 2 U.S.Code Cong. and Administrative News, p. 4029 (1970).5 United States v. Riehl, supra, 460 F.2d at 458. In its effort to establish a federal structure to help curb large gambling businesses, Congress adopted the quantitative prerequisites to federal intervention contained in § 1955(b)(1)(ii) and (iii). To construe these provisions as urged by the government would not further the congressional purpose, for such a broad construction could subject almost any small gambling operation to federal regulation. This is clearly not the function of § 1955.
The quantitative requirements that the business be conducted by...
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