U.S. v. Hines

Citation696 F.2d 722
Decision Date02 November 1982
Docket NumberNos. 80-1425,s. 80-1425
Parties11 Fed. R. Evid. Serv. 1863 UNITED STATES of America, Plaintiff-Appellee, v. Carla Florentine HINES, Leroy Dale Hines, Robert E. Woolverton, Anna Mae Hines, and Anthony A. Cassel, Defendants-Appellants. , and 80-1433 to 80-1436.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Carl D. Hughes, Oklahoma City, Okl., Philip F. Cardarella, Kansas City, Mo., and Raymond J. Smith, Chicago, Ill. (James P. Quinn, Kansas City, Mo., Thomas G. Hanlon; and Larry A. Gullekson, Tulsa, Okl., with them on the consolidated brief), for defendants-appellants.

David B.B. Helfrey, Atty., Dept. of Justice, Washington, D.C. (Hubert H. Bryant, U.S. Atty., N.D. Oklahoma, Tulsa, Okl., and Robert E. Mydans, Atty., Dept. of Justice, Washington, D.C., on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

The defendants appeal from criminal convictions obtained under the federal conspiracy and racketeering laws.

The indictment alleged that the appellants had conspired to use interstate travel and facilities in order to further an Oklahoma bookmaking operation which was illegal under Oklahoma's commercial gambling laws. See Okla.Stat.Ann. tit. 21 Secs. 981- 988 (West Supp.1981). The indictment charged that the conspiracy violated the provisions of title 18, section 371 of the United States Code, which imposes criminal sanctions where "two or more persons conspire ... to commit any offense against the United States, ... and one or more of such persons do any act to effect the object of the conspiracy ...." 18 U.S.C. Sec. 371 (1976). The indictment identified the "offense against the United States" as a violation of section 1952 of the Travel Act, 18 U.S.C. Sec. 1952 (1976). Section 1952 proscribes the use of interstate travel and facilities where the intent is to further "any unlawful activity," 18 U.S.C. Sec. 1952(a), and defines "unlawful activity" to include "any business enterprise involving gambling ... offenses in violation of the laws of the State in which they are committed ...." 18 U.S.C. Sec. 1952(b). The case was tried in federal district court where a jury found the appellants guilty as charged in the indictment. These appeals followed.

We abated the appeals pending a decision of the Oklahoma Court of Criminal Appeals as to the constitutionality of section 982 of Oklahoma's commercial gambling statute. 1 In State v. Koo, 647 P.2d 889 (Okl.Cr.App.1982), that court determined that the section was not unconstitutionally vague or overbroad and, accordingly, did not violate standards of due process. 2 Therefore, these appeals are ordered removed from the list of abated cases and submitted for decision.

On appeal, appellants raise eleven 3 challenges to their convictions: (1) section 1952 is an unconstitutional delegation of legislative authority to the states; (2) section 982 of the Oklahoma Commercial Gambling Statute violates federal standards of due process; (3) the trial judge erred in not recusing himself for prejudice or bias; (4) the evidence at trial was insufficient to sustain appellants' convictions; (5) the trial court erred in excluding the testimony of appellants' expert witness, Bobby Baldwin; (6) the trial court erred in refusing to grant a mistrial after an FBI agent conferred with jurors from the witness stand during a recess; (7) the trial court erred in admitting the testimony of Rod Baker, a former probation officer of one of the appellants; (8) the trial court erred in denying a motion for severance; (9) the trial court erred in refusing to suppress certain wiretap evidence; (10) the trial court improperly instructed the jury on the elements of a conspiracy offense; and, (11) the trial court erred in allowing the jury to examine a certain exhibit during deliberations.

1. Delegation of Legislative Authority

Appellants charge that Congress, in relying upon state law to supply an element of a section 1952 offense, has impermissibly delegated its legislative power to the states. We do not agree. Congress defined as a federal crime the use of interstate travel and facilities for the purpose of violating or attempting to violate state law. It is not the violation of state law which constitutes an offense under section 1952, but rather the use of interstate means for that purpose. Congress has acted to protect instruments of interstate commerce from abuse and has defined the proscribed abuse in terms of state law. "[T]he underlying state law merely serves a definitional purpose in characterizing the proscribed conduct." United States v. Loucas, 629 F.2d 989, 991 (4th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981). This is not an impermissible delegation of legislative power by Congress to the states. United States v. Palmer, 465 F.2d 697, 699 (6th Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126 (1972). 4

2. Constitutionality of Section 982 of the Oklahoma Commercial Gambling Statute

The indictment charged that appellants conspired to use interstate means to violate sections 982, 987 and 988 of Oklahoma's commercial gambling statute. On appeal, appellants argue that section 982 of the statute 5 violates constitutional standards of due process because it is facially overbroad and vague. Since it is impossible to determine from the verdict to what extent appellants' convictions were based upon conspiracy to use interstate means to violate section 982, as opposed to other sections, the constitutionality of section 982 is critical to assessing the validity of those convictions. If section 982 is unconstitutional the convictions cannot be sustained. See Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931).

In support of the vagueness and overbreadth arguments, the appellants offer numerous hypothetical applications of the statute, the purpose of which is to show that the law is ambiguous on its face or has conceivable applications not intended by the Oklahoma legislature. We agree with the Oklahoma Court of Criminal Appeals that the statute is neither overbroad nor vague.

Appellants' overbreadth challenge must fail because the statute does not reach "a substantial amount of constitutionally protected conduct." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., --- U.S. ----, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). We have evaluated "the ambiguous as well as the unambiguous scope" of section 982 and have concluded that its language does not cause citizens to forego lawful enterprises in order to avoid the reach of the statute. 102 S.Ct. at 1191 n. 6. Moreover, First Amendment rights are not implicated in any significant way. Therefore, this is not a case in which appellants have standing to challenge a statute because of its adverse effect upon the First Amendment rights of others not presently before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 2915-2916, 37 L.Ed.2d 830 (1973).

In advancing their vagueness argument, appellants claim that the statute is so vague that a person of reasonable intelligence cannot possibly understand its scope. They cite three allegedly fatal flaws.

They first fault the statute on the basis that, by its literal terms, it proscribes the conduct of those who operate or otherwise have a financial stake in a commercial gambling enterprise, but it does not proscribe the conduct of a "better" who does business with a commercial gambling enterprise. However, this characteristic does not implicate the constitutional concept of vagueness. It is the province of the Oklahoma legislature to decide what conduct will be prohibited by its criminal statutes. A statute is not vague merely because the legislature does not criminalize certain types of conduct. In any event, appellants do not have standing to make this argument. Vagueness challenges to statutes which do not involve First Amendment rights are limited to the facts of the case at hand. United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974).

Appellants next assert that the statute is vague because many of the words and phrases used in the statute are susceptible of various interpretations. An examination of the words and phrases in section 982 cited by appellants as ambiguous reveals that each either is defined within the commercial gambling statute or has a common and ordinary meaning which clearly defines its scope. The statute "is set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." CSC v. Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). In any event, the statute is not vague as it pertains to appellants' conduct. There is no suggestion that the statute failed to inform appellants that their conduct was proscribed, and appellants lack standing to attack the statute on the basis that it might be unconstitutionally vague as applied to the conduct of others. Village of Hoffman Estates, 102 S.Ct. at 1191; Parker, 417 U.S. at 756, 94 S.Ct. at 2561-2562.

Finally, appellants attack section 982 on the ground that it does not expressly require criminal intent in each of its sub-elements. For instance, section 982 A.1 defines commercial gambling as "[o]perating or receiving all or part of the earnings of a gambling place," and section 982 A.3 defines commercial gambling as "[f]or gain, becoming a custodian of anything of value bet or offered to be bet." Appellants posit hypotheticals in which non-criminal conduct would appear to come within the proscriptions of the statute. However, the criminal intent of the appellants is...

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