Martin v. United States, No. 23828.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWISDOM, Circuit
Citation389 F.2d 895
PartiesRobert Lynn MARTIN and Maurice Daniel Dodson, Appellants, v. UNITED STATES of America, Appellee.
Docket NumberNo. 23828.
Decision Date05 March 1968

389 F.2d 895 (1968)

Robert Lynn MARTIN and Maurice Daniel Dodson, Appellants,
v.
UNITED STATES of America, Appellee.

No. 23828.

United States Court of Appeals Fifth Circuit.

January 25, 1968.

As Modified on Denial of Rehearing March 5, 1968.


Morris A. Shenker, John L. Boeger, St. Louis, Mo., Edward Bennett Williams, Robert L. Weinberg, Barbara Allen Babcock, Washington, D. C., for appellants.

James R. Gough, Asst. U. S. Atty., Morton L. Susman, U. S. Atty., Owen A. Neff, Special Asst. U. S. Atty., Houston, Tex., for appellee.

389 F.2d 896

Before JONES, WISDOM and DYER, Circuit Judges.

WISDOM, Circuit Judge.

The narrow question for review is the constitutionality of the Federal Anti-Wagering Law, 18 U.S.C. § 1084,1 as applied in the circumstances of this case.

The appellants were convicted for transmitting wagers and wagering information by telephone in interstate commerce — between Houston, Texas and Las Vegas, Nevada. They waived trial by jury and stipulated with government counsel that the factual allegations of count 3 of the indictment were true.2 It was also stipulated that all of the telephone calls upon which count was predicated were made from Houston to Las Vegas. The appellants were convicted upon the stipulated record and appealed to this Court3 on the sole issue of the constitutionality of section 1084. We find that section constitutional as applied to the transmission of wagers from Texas to Nevada and thus affirm the judgment of the district court.

* * *

This is not the first constitutional attack on section 1084. Without exception, however, the attack has failed. Section 1084 is (1) within the scope of Congressional power under the commerce clause (United States v. Kelley, S.D.N.Y. 1966, 254 F.Supp. 9; United States v. Borgese, S.D.N.Y.1964, 235 F.Supp. 286); (2) not contrary to the First Amendment (United States v. Kelley; United States v. Borgese; United States v. Smith, E.D.Ill.1962, 209 F.Supp. 907); (3) not void for vagueness (United States v. Borgese; United States v. Smith); and (4) not in derogation of the police power reserved to the states through the Tenth Amendment (United States v. Kelley; United States v. Borgese). It has been held constitutional even when applied to transmission of wagers between two points in the same state when the transmission crosses state borders. United States v. Yaquinta, N.D. W.Va.1962, 204 F.Supp. 276. In the most recent case involving interpretation of section 1084, its constitutionality was not even challenged. Sagansky v. United States, 1 Cir. 1966, 358 F.2d 195. Furthermore, section 1952, a complementary enactment prohibiting travel or transportation in aid of racketeering enterprises,

389 F.2d 897
uniformly has been upheld throughout various constitutional attacks.4

We are here presented with a new thrust: The appellants argue that since they were convicted for transmitting wagers to Nevada, where such wagering is legal, section 1084 is being applied unconstitutionally "to defeat the policies of Nevada while not aiding the enforcement of the laws of any other State." We find that the contentions upon which this constitutional argument is based are erroneous, misleading, and irrelevant.

I.

There is no denying that Nevada favors legal gambling of almost any kind; gambling represents perhaps its most obvious and pervasive state-fostered institution.

"Nevada\'s principal industry, we say is tourism. The tourists come for many reasons to the State of Nevada. * * * Now it would be less than candid to say a great many people do not come into our State because we have some forms of legal gambling that other states do not have. * * * It is a way of life." Statement of Governor Grant Sawyer, of Nevada, on NBC Television "White Paper", Sept. 6, 1966.

Strictly speaking, therefore, any denial of the channels of interstate commerce into or out of Nevada to the wagering world can be considered contrary to the policy of that state.

The appellants' argument assumes that application of section 1084 in this case does not aid the enforcement of the laws of Texas. The relevant Texas statute provides:

No person in this State shall enter into an agreement with another, either orally, written or implied, whereby either one or both shall bet or wager money or anything of value, or otherwise become a party to any gambling scheme based upon the final result or outcome of any play or portion thereof of a game of baseball or football. Vernon\'s Ann.Tex.P.C. art. 646 (1952).

The appellants suggest that this statute apparently would be inapplicable to wagers not concluded in Texas and, since wagers are contracts, United States v. Calamaro, 1957, 354 U.S. 351, 355, 77 S.Ct. 1138, 1 L.Ed.2d 1394, and a contract is made where accepted, the wagers in question were made in Nevada, not Texas. Corbin, Contracts § 79 (1952). Although this logical progression itself may be open to question, we may even assume its validity and yet arrive at a result contrary to that propounded by the appellants. For the Texas statute refers to wagering by a "person in this State"; had the legislature desired the construction asserted by the appellants, the article would have been written to prohibit entering "into an agreement in this State".5

389 F.2d 898

II.

Reference to Nevada's policies in the context of enforcement of this section is misleading. For it is clear that if the policy of Nevada is not "defeated" in some way, then the policy of every other state that prohibits what Nevada allows could be defeated. As Senator Morrill pointed out in the debate on the 1876 anti-lottery statute:

It is obvious that if thirty-six States were to make the most penal statutes against lotteries, and the mails were open to one that allowed lotteries, the laws of the thirty-six States would be rendered nugatory, because all the people of the thirty-six States could obtain their tickets from this one State as well as though they were authorized from the whole. Therefore if the matter is allowed to run through the mails, any laws by any State against lottery tickets are entirely valueless.

Furthermore, assistance to the states directly6 was only part of the reason for enactment of section 1084. This section was part of an omnibus crime bill that recognized the need for independent federal action to combat interstate gambling operations.7 Other sections prohibited interstate transportation of gambling paraphernalia, 18 U.S.C. § 1953, interstate transportation of gambling machines, 15 U.S.C. § 1171, and interstate travel in aid of racketeering, 18 U.S.C. § 1952. Moreover, this series of legislation does not stand alone, but appears as part of an independent federal policy aimed at those who would, in furtherance of any gambling activity, employ any means within direct federal control.8

389 F.2d 899

III.

The appellants' reference to state policy constitutes a challenge to Congressional power under the commerce clause to enact legislation that may contravene Nevada policy. It is in this constitutional context that reference to state policy becomes irrelevant.

The power of Congress under the commerce clause has been amply and ably...

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10 practice notes
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...in each location a player participated in the NIL, if that person was not physically on Indian lands. See, e.g., Martin v. United States, 389 F.2d 895, 897-98 (5th Cir.1968) (stating that telephonic transmission of wager implicates the public policies of the state from which the wager is pl......
  • United States v. Eychaner, Criminal Case No. 4:17cr76
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 15, 2018
    ...F.3d 406, 408 (11th Cir. 2016) ("[C]ourts generally apply in pari materia only when a legal text is ambiguous"); Martin v. United States, 389 F.2d 895, 897 n.5 (5th Cir. 1968) (stating that when the statute was "neither patently nor latently ambiguous ... there is no need to resort to in pa......
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...in each location a player participated in the NIL, if that person was not physically on Indian lands. See, e.g., Martin v. United States, 389 F.2d 895, 897-98 (5th Cir.1968) (stating that telephonic transmission of wager implicates the public policies of the state from which the wager is pl......
  • U.S. v. Kaczowski, No. 98-CR-47E.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 22, 1999
    ...to another state violated 18 U.S.C. § 1084 regardless of whether gambling was legal in the other state, citing Martin v. United States, 389 F.2d 895 (5th Cir.1968), cert. denied, 391 U.S. 919, 88 S.Ct. 1808, 20 L.Ed.2d 656 (1968)); World Interactive Gaming Corp., supra, at *5 (holding gambl......
  • Request a trial to view additional results
10 cases
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...in each location a player participated in the NIL, if that person was not physically on Indian lands. See, e.g., Martin v. United States, 389 F.2d 895, 897-98 (5th Cir.1968) (stating that telephonic transmission of wager implicates the public policies of the state from which the wager is pl......
  • United States v. Eychaner, Criminal Case No. 4:17cr76
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 15, 2018
    ...F.3d 406, 408 (11th Cir. 2016) ("[C]ourts generally apply in pari materia only when a legal text is ambiguous"); Martin v. United States, 389 F.2d 895, 897 n.5 (5th Cir. 1968) (stating that when the statute was "neither patently nor latently ambiguous ... there is no need to resort to in pa......
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...in each location a player participated in the NIL, if that person was not physically on Indian lands. See, e.g., Martin v. United States, 389 F.2d 895, 897-98 (5th Cir.1968) (stating that telephonic transmission of wager implicates the public policies of the state from which the wager is pl......
  • U.S. v. Kaczowski, No. 98-CR-47E.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 22, 1999
    ...to another state violated 18 U.S.C. § 1084 regardless of whether gambling was legal in the other state, citing Martin v. United States, 389 F.2d 895 (5th Cir.1968), cert. denied, 391 U.S. 919, 88 S.Ct. 1808, 20 L.Ed.2d 656 (1968)); World Interactive Gaming Corp., supra, at *5 (holding gambl......
  • Request a trial to view additional results

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