U.S. v. LeFaivre, 74-1239

• Decision Date: 31 March 1975
• Docket Number: No. 74-1239,74-1239
• Citation: 507 F.2d 1288
• Parties: UNITED STATES of America, Appellee, v. Louis Gustav LeFAIVRE et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1288

507 F.2d 1288

UNITED STATES of America, Appellee, v. Louis Gustav LeFAIVRE et al., Appellants.

No. 74-1239.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 30, 1974.

Decided Dec. 4, 1974, Certiorari Denied March 31, 1975, See

95 S.Ct. 1446.

Marvin J. Garbis, Baltimore, Md. (Allen L. Schwait and Garbis & Schwait, Baltimore, Md., on brief) for appellants.

James A. Rothschild, Atty. U.S.C Dept. of Justice (George Beall, U.S. Atty., William A. Pope, Sp. Atty., Baltimore Strike Force, Baltimore, Md., and Jerome M. Feit, Atty. U.S. Dept. of Justice, on brief) for appellee.

Before CRAVEN, BUTZNER, and FIELD, Circuit Judges.

CRAVEN, Circuit Judge:

This appeal presents an interesting aspect of federalism: to what extent should the United States participate with the states in the attempt to control human behavior by the imposition of criminal sanctions. Tradition and history assign a subordinate role to the United States. The burden of policing behavior by application of criminal law remains heavily upon the states, and the proper role of the United States has been termed ancillary or auxiliary to that of the states. See 1 National Commission on Reform of Federal Criminal Laws, Working Papers 33-36 (1970). Nevertheless, Congress by various statutes has made possible federal prosecution of a great many crimes that seem to have little or no correlation to traditional federal interests. See e.g., Mann Act, 18 U.S.C. 2421 (1970); Dyer Act, 18 U.S.C. 2312 (1970).

The statute involved here is 18 U.S.C. 1952, sometimes known as the 'Travel Act,' and entitled by the Congress 'Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises.' It represents the most extensive recent entry by the Congress into the substantive criminal law field. Pegged upon the congressional power over interstate and foreign commerce and the mails, the statute undertakes to make federal crimes out of business enterprises that involve gambling, non-taxpaid liquor, narcotics, prostitution, extortion, bribery, and arson.

We are here concerned with gambling. Appellants were convicted by a jury of participating in varying degrees in a rather large gambling operation ¹ conducted entirely within the State of Maryland and mostly within the City of Baltimore. Appellant Louis LeFaivre, Sr., was the backer for the entire operation; appellant Louis LeFaivre, Jr., was one of his lieutenants; and appellants Miller and Eckert were 'telephone girls' who recorded daily bets taken by the 'writers' located throughout the city. Some of the many 'writers' received as much as $1,000 or even $2,000 in bets weekly. But the only established connection with interstate commerce, the jurisdictional peg for application of the statute, was the introduction at trial of 14 out-of-state checks and other negotiable instruments offered in settlement of bets and passed through interstate banking channels in the clearing process after being cashed or deposited by one of the principal defendants.

Not unreasonably, appellants characterize their gambling enterprise as 'local' as opposed to interstate. They urge on appeal that the Travel Act was not intended to apply and does not apply to a local gambling operation with only incidental use of facilities in interstate commerce. We disagree. Appellants' arguments come to this: that the Congress in the exerise of its power over the instrumentalities of commerce ought not to undertake to reach criminal activity that is primarily local in nature, but should instead leave policing of such criminal activity to the states. ² We think the argument is addressed to the wrong forum and that it is not for the courts to interpose restraints so long as the Congress has acted within the proper scope of its powers. ³ The convictions will be affirmed.

I.

The language of the Travel Act literally covers this gambling operation involving 14 out-of-state negotiable instruments. In relevant part, the Act states that 'whoever . . . uses any facility in interstate or foreign commerce, including the mail, with intent to . . . carry on, or facilitate the . . . carrying on, of any unlawful activity (gambling), and thereafter performs or attempts to perform (any business enterprise involving gambling) shall be fined not more than $10,000 or imprisoned for not more than five years or both. ⁴ The words fit the facts of this case: LeFaivre used facilities in interstate commerce each time he deposited or cashed one of the 14 out-of-state checks received from his writers. His intention was to collect money and thus to carry on or facilitate the carrying on of his enterprise. And since the gambling operation was ongoing over a period of years, there can be no doubt that LeFaivre and the others continued to perform their illegal activity after the use of interstate facilities, thus meeting the Act's requirement that a person engage in the substantive offense following the involvement of interstate commerce.

In United States v. Wechsler, 392 F.2d 344 (4th Cir.), cert. denied, 392 U.S. 932, reh. denied, 393 U.S. 902, 89 S.Ct. 71, 21 L.Ed.2d 191 (1968), we upheld a Travel Act conviction founded upon a local zoning board official's deposit into his bank account of an out-of-state check recived as a bribe. As we said then, 'when one deposits a check, there would seem to be little doubt that he is using a facility in interstate commerce.' ⁵ 392 F.2d at 347 n. 3; cf. United States v. Barnes, 383 F.2d 287, 290 (6th Cir. 1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). In United States v. Salsbury, 430 F.2d 1045 (4th Cir. 1970), a Maryland nightclub operator financed large-scale illegal gambling operations in which bettors often paid their bookies by check or money order, which the nightclub operator cashed at a local drugstore. We held the government could prosecute Salsbury under the Travel Act because some of the checks were on out-of-state banks.

But appellants urge that Wechsler and Salsbury have been destroyed by Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). In Rewis, the Supreme Court held that the Travel Act could be applied neither to persons who crossed state lines for the purpose of frequenting a local gambling establishment, nor-- considering solely the fact of their customers' travel across state lines-- to the operators of the establishment. Appellants rely on the discussion in Rewis of the legislative history behind the Travel Act, which they argue suggests that Congress did not intend to reach purely local operations like LeFaivre's. The Court in Rewis, while noting that legislative history of the statute was 'limited,' did divine fron it that the Act was aimed 'primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another.' 401 U.S. at 811, 91 S.Ct. at 1059. The Court also noted that the legislative history evidenced no consideration by Congress of the effect on 'sensitive federal-state relationships' and 'limited federal police resources' that would result if the Act were read to cover local gambling operationS even those located in multi-state metropolitan areas, just because they were frequented by out-of-state customers. Id. at 812, 91 S.Ct. 1056.

In addition to Rewis, appellants also cite us to later decisions of the Seventh and Second Circuits applying Rewis. In United States v. Altobella, 442 F.2d 310 (7th Cir. 1971), the Seventh Circuit reversed a Travel Act conviction based on an extortion victim's payment with funds procured by cashing an out-of-state check, which like the checks in the instant case had to travel in interstate commerce in order to be cleared. The Seventh Circuit based its decision in part on the 'minimal and incidental' nature of the involvement of interstate facilities, stating that it did not believe Congress intended 'to authorize federal intervention in local law enforcement in a marginal case such as this.' 442 F.2d at 315, 316. One month after Altobella, in United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), the Seventh Circuit reaffirmed its reading of the Travel Act in a short per curiam opinion reversing the conviction of a lottery operator who, although he actually employed only local people, did advertise for employees in a newspaper that reached some out-of-state subscribers. The court based this decision on Rewis and Altobella, noting only that 'the role played by the interstate mailings was 'a matter of happenstance' and 'minimal and incidental' to the operation of the illegal lottery.' 442 F.2d at 318.

The final post-Rewis opinion relied upon by appellants is that of Judge Friendly in United States v. Archer, 486 F.2d 670 (2d Cir. 1973), reh. denied, id. at 683 (per curiam). ⁶ The facts in Archer presented a rather unpretty picture of government investigators using the ruse of a planted agent to induce suspected criminals into committing overt acts for which they could be charged. The Travel Act was said to be invoked by a single telephone call placed by a government agent from Paris and received by one of the suspected criminals in New York. After examining the legislative history of the Travel Act at length and considering the Rewis, Altobella, and McCormick decisions, the Second Circuit decided that the telepnone call could not support a Travel Act prosecution, both because the call's transatlantic nature was 'a matter of happenstance,' see Rewis, 401 U.S. at 812, 91 S.Ct. 1056, and because the receipt of an interstate or international phone call seemed analogous to the receipt of gambling customers across state lines that the Supreme Court in Rewis had held to be insufficient for invocation of the Act. 486 F.2d at 682-683.

Appellants contend that the Altobella, McCormick and Archer decisions, correctly explicating Rewis, have applied a judicial gloss to the literal words of the Travel Act that merits...