Bass v. United States, No. 17205.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: VAN OOSTERHOUT and BLACKMUN, Circuit , and MICKELSON
• Citation: 324 F.2d 168
• Parties: Andrew Stratton BASS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 17205.
• Decision Date: 01 November 1963

324 F.2d 168 (1963)

Andrew Stratton BASS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17205.

United States Court of Appeals Eighth Circuit.

November 1, 1963.

324 F.2d 169

Wils Davis of Davis & Davis, Memphis, Tenn., Douglas Bradley, Jonesboro, Ark., on the brief, for appellant.

Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., on the brief, for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and MICKELSON, District Judge.

BLACKMUN, Circuit Judge.

Andrew Stratton Bass was convicted by a jury on four counts of a six-count indictment charging him, as a principal under 18 U.S.C. § 2, with violations of 18 U.S.C. § 1952. The latter,¹ P.L. 87-228, 75 Stat. 498, approved September 13, 1961, is one of the recently enacted interstate

324 F.2d 170

racketeering statutes.² Bass received a general sentence of three years and a $5,000 fine. He appeals

Each of the six counts charged the defendant with inducing and procuring, in 1961 or 1962, a different person to travel in interstate commerce from Memphis, Tennessee, to West Memphis, Arkansas, with intent to promote, manage, and carry on an unlawful activity, namely, "a business enterprise involving gambling offenses in violation of Sections 41-2001, 41-2003 and 41-2004 of Arkansas Statutes Annotated", and the named person's subsequent performance of such acts. At the conclusion of the government's case the defense rested without the presentation of evidence on its part. At that point its motions for judgment of acquittal were granted as to counts 2 and 4 but were denied as to the other counts.

It is in effect conceded here that the operation of a gambling house in Arkansas or having a financial interest in one constitutes an offense violative of the state statutes cited in the indictment. Sorrentino v. State, 215 Ark. 216, 214 S.W.2d 517 (1948); Pope v. State, 216 Ark. 314, 219 S.W.2d 940 (1949). There is no denial, either, that Bass operated and had a financial interest in gambling houses in West Memphis. This federal indictment, of course, did not charge Bass with a violation of the state statutes. Neither did it charge him with traveling personally in interstate commerce to carry on these activities; it charged him only as a principal in the inducement of the persons named to make the proscribed interstate movement.

There is no real question as to certain other facts: Bass, a Negro, lived in Memphis. He operated the Beebop Hall and the Jones Hotel in West Memphis. These were next door to each other. Dice games were carried on there. The patrons were Negroes. The places were two of several similar establishments in the community. Each game was run by at least two persons. One of these was the "rackman". He handled the money, made change for the players, obtained a cut from each bet, and turned the cuts over to Bass. The other was the "handler", "hustler", or "scuffler". He cut each bet and passed the cut on to the rackman for delivery to Bass. Each rackman and handler was allowed to participate in the gambling on his own and to pick up "sleepers" which were bets inadvertently left on the table by players.

The men named in the remaining four counts of the indictment were Cartrell Williams, Lindsey Culbert Johnson, Julius Grant Fowler and Fred Coleman. Each of the four lived in Memphis. Bass knew they lived there. Each participated in the gambling at the Beebop or the Jones. Each traveled from Memphis to West Memphis to do this.

Williams had worked for six or seven years as a rackman and for about thirteen years before that as a handler. He went over to West Memphis two nights a week on weekends. Bass furnished the money he needed to make change. His compensation consisted of the profit he made from his own betting but if he made no profit Bass paid him something. Johnson worked at the Beebop for three or four years as a handler and rackman. He was compensated in the same way. Coleman was a rackman at the Jones. He received his compensation from his gambling and from sleepers. Fowler was a handler at the Jones. He also asked for and received money from winners.

As the defense points out, there was no direct evidence, in the form of positive

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testimony or concession, that any of the four men traveled in interstate commerce with intent to carry on Bass' gambling business in Arkansas and there was no direct evidence that Bass aided or abetted or caused or induced them so to travel or that he sought them out and procured them to work for him. As a consequence, the defense position basically is that the evidence merely shows that each of the four on his own volition went from Memphis to West Memphis to gamble; that because of the advantage of being a rackman or handler he asked Bass, after he arrived in West Memphis, if he could perform that function; that the four were thus privately motivated to cross the state line; that the record does not support the charge under §§ 1952 and 2; and that the jury never considered the real issues but "simply condemned gambling among the Negroes in West Memphis". Specifically, the defendant asserts that the court erred (a) in refusing to include in its instructions the title of § 1952; (b) in denying the motions for judgment of acquittal as to the four remaining counts; (c) in failing to give requested instructions; (d) in permitting the introduction of certain testimony; and (e) in not holding § 1952 unconstitutional

1. We see no error in the court's failure to include the title or heading of § 1952 in its charge to the jury. That title is "Interstate and foreign travel or transportation in aid of racketeering enterprises." This court has said, with respect to another but comparable statute that "in the case of a crime of such few and simple elements" it is not...