U.S. v. Mendelsohn

• Decision Date: 20 February 1990
• Docket Number: 88-5076,Nos. 88-5073,s. 88-5073
• Citation: 896 F.2d 1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin MENDELSOHN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert BENTSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1183

896 F.2d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Martin MENDELSOHN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Robert BENTSEN, Defendant-Appellant.

Nos. 88-5073, 88-5076.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 13, 1989.

Decided Feb. 20, 1990.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal. and Mary Elizabeth Kelly, Bel Air, Cal., for the defendants-appellants.

Harriet M. Rolnick, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, and CANBY, Circuit Judges, and EZRA, ^* District Judge.

CANBY, Circuit Judge:

Martin Mendelsohn and Robert Bentsen appeal convictions for conspiring to transport and aiding and abetting the interstate transportation of wagering paraphernalia, in violation of 18 U.S.C. Secs. 371, 1953. The item they transported was a computer disk containing a program to aid in bookmaking. Both defendants were sentenced to three years probation. We affirm the judgments.

BACKGROUND

Mendelsohn and Bentsen mailed a computer floppy disk from Las Vegas, Nevada to California, to one Michael Felix, an undercover policeman posing as a bookmaker. The disk was encoded with a computer program called SOAP (Sports Office Accounting Program).

SOAP provided a computerized method for recording and analyzing bets on sporting events. The floppy disk had limited storage capacity; the instructions consequently directed the user to copy the program from the floppy disk onto the hard disk of a computer, and then to use the hard disk to run the computer operation and store data. Once copied into the computer, SOAP could be used to record and review information about game schedules, point spreads, scores, customer balances, and bets. A SOAP user could calculate changing odds and factor in a bookmaker's fee to bets. The operator could quickly erase all records, although the records could be retrieved by using another special program.

Bentsen demonstrated the SOAP program to Felix and offered future assistance. SOAP advertisements promised unlimited telephone support to customers. The defendants knew that most customers used SOAP for illegal bookmaking. The defendants also sold SOAP to bettors and tried unsuccessfully to sell it to legal sports bookmakers and to game companies.

DISCUSSION

1. The First Amendment Defense

The defendants contend that SOAP is speech protected by the first amendment. They compare it to an instruction manual for a computer. They note that computer programs have qualified under the copyright laws as literary works and works of authorship. See Apple Computer, Inc. v. Formula Int'l, Inc. 725 F.2d 521 (9th Cir.1984); 17 U.S.C. Secs. 101, 102(a).

Mendelsohn proposed an instruction informing the jury that it could not convict unless it found that "it was the intent of one or both of the defendants and the tendency of the computer program at issue here to produce or incite any lawless act, which was in fact likely to occur...." This proposed instruction tracks language in Brandenberg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) ("[A] State [may not] ... proscribe advocacy of ... law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.")

The district court rejected the defendant's First Amendment defense, ruling that

[t]he acts for which Defendants have been indicted are too close in time and substance to the ultimate criminal conduct, making a defense based on the First Amendment inapplicable. There is no evidence in this case that any speech by Defendants was directed to ideas or consequences other than the commission of a criminal act. This is not a situation in which Defendants were addressing themselves, for example to the unfairness of state or federal gambling laws.

The defendants were entitled to their proposed instruction if it was "supported by law and ha[d] some foundation in the evidence." United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir.1984) (emphasis in original). ¹ For a first amendment instruction to meet these requirements, there must be some evidence that the defendants' speech was informational in a manner removed from immediate connection to the commission of a specific criminal act. See United States v. Freeman, 761 F.2d 549, 551 (9th Cir.1985) cert. denied, 476 U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986) (First Amendment defense for defendant who gave false tax information at seminars).

The defendants rely upon United States v. Dahlstrom, 713 F.2d 1423 (9th Cir.1983), cert. denied 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984), where the defendant gave seminars instructing others how to set up tax shelters of questionable legality, but did not set up the tax shelters himself. We stated that, under those circumstances, the defendant could assert a first amendment defense. Id. at 1428. We find Dahlstrom distinguishable. Here, Mendelsohn and Bentsen did not use SOAP to instruct bookmakers in legal loopholes or to advocate gambling reform. They furnished computerized directions for functional use in an illegal activity. There was no evidence that the defendants thought Felix was going to use SOAP for anything other than illegal bookmaking. On the contrary, the defendants knew that SOAP was to be used as an integral part of a bookmaker's illegal activity, helping the bookmaker record, calculate, analyze, and quickly erase illegal bets.

The question is not whether the SOAP computer program is speech, but whether it is protected speech. "Where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone." United States v. Freeman, 761 F.2d at 552 (no first amendment defense when defendant helped file a false income tax return); see also United States v. Aguilar, 883 F.2d 662, 685 (9th Cir.1989) (defendants showed alien where and how to cross border illegally); United States v. Schulman, 817 F.2d 1355 (9th Cir.), cert. denied, 483 U.S. 1042 108 S.Ct. 362, 97 L.Ed.2d 803 (1987) (defendant reported false loans stemming from financing transactions); United States v. Solomon, 825 F.2d 1292 (9th Cir.1987), cert. denied 484 U.S. 1046, 108 S.Ct 782, 98 L.Ed.2d 868 (1988) (defendant helped create and manage illegal tax shelters); United States v. Kelley, 864 F.2d 569 (7th Cir.) cert. denied, --- U.S. ----, 110 S.Ct. 55, 107 L.Ed.2d 23 (1989) (defendant sold tax shelters, participated in closings, and received commissions).

Although a computer program under other circumstances might warrant first amendment protection, SOAP does not. SOAP is too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection. No first amendment defense need be permitted when words are more than mere advocacy, "so close in time and purpose to a substantive evil as to become part of the crime itself." United States v. Freeman, 761 F.2d at 552. We conclude that the SOAP computer program was just such an integral and essential part of ongoing criminal activity. The district court did not err in rejecting the defendant's proposed jury instruction based on the first amendment.

2. Overbreadth

The defendants argue that 18 U.S.C. Sec. 1953 is overbroad because it proscribes "knowing" interstate transport of wagering paraphernalia, but does not require that the distributor "intend" to incite illegal activity, thus proscribing some protected speech. To invalidate a statute on this ground, the overbreadth must be substantial in comparison with the statute's legitimate sweep. See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); see also, New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (upholding a statute that prohibited distribution of obscene material despite arguably impermissible applications).

Section 1953 provides in part: "Whoever ... knowingly carries or sends in interstate ... commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised, or designed for use in (a) bookmaking; or (b) wagering pools with respect to a sporting event; ... shall be fined ... or imprisoned...." The statute exempts "any newspaper or similar publication." Nearly all of the wagering paraphernalia covered by Section 1953 is easily identifiable and unprotected by the first amendment. The overbreadth, if it exists, is far from substantial. We will not invalidate this statute simply because "there are marginal applications in which ... [it] would infringe on First Amendment values." Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974).

3. The "Newspaper or Similar Publication" Exception

The district court ruled that SOAP was not a "newspaper or similar publication" under the exception to 18 U.S.C. Sec. 1953. The exception was "primarily designed to exclude ... a newspaper or other publication containing racing results or predictions." H. Rep. No. 968, 87th Cong., 1st Sess. (1961), reprinted in 1961 U.S.Code, Cong. & Admin.News 2634, 2636. "Similar publication" has not been fully defined, but it does include publications containing betting news, race results, and predictions of the outcome of races or games. United States v. Kelly, 328 F.2d 227 (6th Cir.1964). One can envision a computer disk containing such information, but SOAP did not. SOAP did not bring the bookmaker any news of the betting world. It contained no information about races, games, bets, or even betting strategy. Rather, SOAP helped computerize the bookmaker's system of keeping records and making bets. Classifying SOAP as a publication similar to a newspaper requires a stretch of the statutory language beyond the possible...