Amusement Devices Ass'n v. State of Ohio

• Decision Date: 26 July 1977
• Docket Number: No. C-2-75-511.,C-2-75-511.
• Citation: 443 F. Supp. 1040
• Parties: AMUSEMENT DEVICES ASSOCIATION, Pioneer Services, Inc. and Progress Vending, Inc., Plaintiffs, v. STATE OF OHIO, William J. Brown, Attorney General, Bennie Espy, Thomas Rooney, Caulfield, Assistant Attorneys General and Robert W. Powell, Clerk Common Pleas Court, Clark County, Ohio, Defendants.
• Court: U.S. District Court — Southern District of Ohio

443 F. Supp. 1040

AMUSEMENT DEVICES ASSOCIATION, Pioneer Services, Inc. and Progress Vending, Inc., Plaintiffs, v. STATE OF OHIO, William J. Brown, Attorney General, Bennie Espy, Thomas Rooney, Caulfield, Assistant Attorneys General and Robert W. Powell, Clerk Common Pleas Court, Clark County, Ohio, Defendants.

No. C-2-75-511.

United States District Court, S. D. Ohio, E. D.

July 26, 1977.

COPYRIGHT MATERIAL OMITTED

Arnold Morelli, James W. Farrell, Jr., Lawrence A. Kane, Jr., Cincinnati, Ohio, James F. DeLeone, Columbus, Ohio, Ambrose H. Lindhorst, Cincinnati, Ohio, for plaintiffs.

Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, for defendants.

Before PECK, Circuit Judge, and KINNEARY and DUNCAN, District Judges.

OPINION

DUNCAN, District Judge.

Since January 1, 1974, "engaging in organized crime" has been a felony offense in the State of Ohio. The organized crime statute appears in Chapter 2923 of the Revised Code, which includes penal provisions concerning conspiracy, attempt, complicity, and certain weapons offenses. The statute is R.C. 2923.04, which provides in its entirety as follows (emphasis supplied):

(A) No person, with purpose to establish or maintain a criminal syndicate or to facilitate any of its activities, shall do any of the following:

(1) Organize or participate in organizing a criminal syndicate or any of its activities;

(2) Provide material aid to a criminal syndicate or any of its activities, whether such aid is in the form of money or other property, or credit;

(3) Manage, supervise, or direct any of the activities of a criminal syndicate, at any level of responsibility;

(4) Furnish legal, accounting, or other managerial services to a criminal syndicate;

(5) Commit, or conspire or attempt to commit, or act as an accomplice in the commission of, any offense of a type in which a criminal syndicate engages on a continuing basis;

(6) Commit, or conspire or attempt to commit, or act as an accomplice in the commission of, any offense of violence;

(7) Commit, or conspire or attempt to commit, or act as an accomplice in the commission of bribery in violation of section 2921.02 of the Revised Code.

(B) Whoever violates this section is guilty of engaging in organized crime, a felony of the first degree.

(C) As used in this section, "criminal syndicate" means five or more persons collaborating to promote or engage in any of the following on a continuing basis:

(1) Extortion or coercion in violation of section 2905.11 or 2905.12 of the Revised Code;

(2) Compelling or promoting prostitution, or procuring in violation of section 2907.21, 2907.22, or 2907.23 of the Revised Code;

(3) Any theft offense as defined in section 2913.01 of the Revised Code;

(4) Any gambling offense as defined in section 2915.01 of the Revised Code;

(5) Illegal trafficking in drugs of abuse, in intoxicating or spirituous liquor, or in deadly weapons or dangerous ordnance as defined in section 2923.11 of the Revised Code;

(6) Lending at usurious interest, and enforcing repayment by illegal means;

(7) Any offense, for the purpose of gain.

(D) A criminal syndicate retains its character as such even though one or more of its members does not know the identity of one or more other members, and even though its membership changes from time to time.

At issue in this case is R.C. 2923.04(A)(4), which prohibits any person from furnishing legal services¹ to a criminal syndicate with the purpose of establishing or maintaining a criminal syndicate or facilitating any of its activities.

We hold that subsection (A)(4) of R.C. 2923.04 is unconstitutional on its face. This legislation is an effort to limit in uncertain terms the legal services which are available to persons who engage in certain joint criminal ventures. Defendants assert that "a number of persons have concluded that attorneys are an important and integral part of organized crime." We need not and do not express an opinion concerning such a conclusion. The Constitution establishes a framework within which government must remain in its search for public order; the statute before the Court exceeds the bounds of that framework.

I

This case was filed before Congress's August 12, 1976, repeal of 28 U.S.C. § 2281; since plaintiffs sought an injunction against the operation of a state statute on federal constitutional grounds, a three-judge court was convened. Because § 7 of the repealing legislation, 90 Stat. 1119, Pub.L. 94-381, provides that the legislation "shall not apply to any action commenced on or before the date of enactment," this case is properly before this three-judge court at this time.

This matter is before the Court upon the stipulations of the parties and upon the evidence adduced at the hearing held concerning plaintiffs' application for preliminary injunctive relief. One of the plaintiffs is Amusement Devices Association, an unincorporated association of distributors of devices such as electronic games. Amusement Devices Association assists its members in understanding and complying with the valid laws and regulations which govern the distribution and operation of amusement devices. The Association provides a variety of legal services for its members, including, but not limited to, retaining attorneys to monitor current legal developments and to represent the interests of the association and its members in litigation. Plaintiffs Pioneer Service, Inc. and Progress Vending, Inc. are members of Amusement Devices Association; each distributes amusement devices for profit in this judicial district. Defendants are the State of Ohio, the Attorney General of Ohio, three Assistant Attorneys General, and the Clerk of the Court of Common Pleas of Clark County, Ohio.

On August 9, 1974, pursuant to an Ohio statute, R.C. 109.82, the Governor directed the Attorney General of Ohio to investigate charges of "organized criminal activity" in Clark County, Ohio. The defendant attorney general accordingly ordered agents of the Bureau of Criminal Investigation and Identification to investigate the allegations. Working primarily in undercover capacity, these agents found evidence of gambling in the Clark County area.

The investigation concerned the use of devices commonly known as "Bally Bingo" pinball machines, which are discussed in the margin.² Similar machines have been held by the Supreme Court of Ohio to be illegal gambling devices. Stillmaker v. Department of Liquor Control, 18 Ohio St.2d 200, 249 N.E.2d 61 (1969). Similar machines have been held to be "gambling devices" under the Gambling Devices Act, 15 U.S.C. § 1171 et seq., and therefore subject to forfeiture if shipped in interstate commerce. United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57 (W.D. Ky.1965), aff'd sub nom. United States v. H. M. Branson Distributing Company, 398 F.2d 929 (6th Cir. 1968).

On December 30, 1974, 36 search warrants were executed against persons displaying these machines and against two distributors: Hughes Music Company and the Supreme Novelty Company, both of Clark County, Ohio. Evidence seized pursuant to these search warrants revealed that in addition to some 78 seized machines, numerous other machines were on location in Clark and Greene County, Ohio.

A special grand jury was convened on April 15, 1975, at the request of the attorney general. On July 16, 1975, the grand jury returned indictments against Supreme Novelty Company and Hughes Music Company, both of which were members of Amusement Devices Association. On the same day, the grand jury returned indictments against the presidents of these companies. Each of these indictments charged a violation of subsection (A)(4) and four other violations of R.C. 2923.04.

Testimony before the grand jury indicated that a portion of the proceeds from these gambling devices was sent to plaintiff Amusement Devices Association, in Cincinnati, Ohio. On July 22, 1975, six days after returning the indictments mentioned above, the special grand jury issued subpoenas duces tecum upon Elinor C. Batte, a clerk for the Association, and upon Robert J. Bunker, accountant for the Association. As issued, the subpoenas required Batte and Bunker to appear before the grand jury as witnesses on July 29, 1975, and to bring with them various documents of Amusement Devices Association, including "any records, books, documents or communications evidencing the membership of Amusement Devices Association, the schedule of dues and the criterion for membership." Also subpoenaed were business records such as account ledgers and journals, plus all written evidence of communications between the Association and its members.

At the July 30, 1975, hearing held in this case, the defendant Chief of Criminal Activities Section of the Ohio Attorney General's Office testified about the focus of the grand jury investigation and about some of the testimony adduced before the grand jury concerning a Columbus attorney, Charles T. Kaps, who has represented Amusement Devices Association in the past:

Q. And I might ask specifically, Mr. Espy, since we've had testimony from Mr. Kaps, has there been any specific attempt by the grand jury to investigate legal assistance or anything in the way of legal advice by Mr. Kaps or other counsel?

. . . . .

A. There was no attempt on behalf of our office to involve Mr. Kaps in this investigation. The questions he referred to in this morning's testimony were asked in the context that the witnesses themselves mentioned the fact that a certain amount of money from these machines, gambling proceeds, went to an attorney in Columbus, Ohio. They also testified that they had legal protection to have these machines. They mentioned — first of all, Mr. Kaps' name was not solicited by our office. It was in that context that the inquiry was conducted.

Q. In terms of the subpoena for the records and books of Amusement Devices Association, in what context was that subpoena issued?

A. We've had testimony from the grand jury

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