United States v. Erlenbaugh, 18761

• Decision Date: 06 March 1972
• Docket Number: 18765 and 71-1140.,No. 18761,18762,18764,18761
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul P. ERLENBAUGH et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Adrian J. WHITE et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Frank J. KELLY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond J. KULIK et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Edward Joseph MISIOLEK et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 967 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Paul P. ERLENBAUGH et al., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Adrian J. WHITE et al., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Frank J. KELLY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Raymond J. KULIK et al., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Edward Joseph MISIOLEK et al., Defendants-Appellants.

Nos. 18761, 18762, 18764, 18765 and 71-1140.

United States Court of Appeals, Seventh Circuit.

November 30, 1971.

Certiorari Granted March 6, 1972.

Charles W. Grubb, Cedar Lake, Ind., for Paul P. Erlenbaugh and others.

William C. Lee, U. S. Atty., Fort Wayne, Ind., Craig Bradley, Atty., U. S. Dept. of Justice, Washington, D. C., for the United States.

Before FAIRCHILD, PELL and SPRECHER, Circuit Judges.

Certiorari Granted March 6, 1972. See 92 S.Ct. 1194.

SPRECHER, Circuit Judge.

These consolidated appeals challenge the validity of judgments of conviction entered upon jury verdicts which found the defendants guilty of conspiring to violate 18 U.S.C. § 1952 contrary to 18 U.S.C. § 371 and of substantive violations of 18 U.S.C. § 1952.

The issue common to all five appeals is whether the use of a "scratch sheet," delivered by interstate railroad, in a bookmaking operation constitutes use of an interstate facility under § 1952 of the Travel Act, in view of the fact that the scratch sheet is a "newspaper or similar publication" under § 1953(b) (3), to which § 1953(a), prohibiting the sending or carrying of bookmaking paraphernalia, does not apply. Some of the appeals also challenge (1) rulings on instructions on intent and specific intent, (2) refusal to give instructions on using or causing to use a railroad as an interstate facility, (3) refusal to give an instruction on burden of proof where the defense of alibi was relied upon, (4) refusal to give a requested instruction on conspiracy, and (5) sufficiency of the evidence.

I

In No. 18761, Paul P. Erlenbaugh, William H. Mitchell and John C. Hintz were convicted upon a jury trial under 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 1952, and Mitchell and Hintz were also convicted on two counts each of violations of 18 U.S.C. § 1952. Erlenbaugh was sentenced to two years (six months to be served) followed by three years of probation. Mitchell and Hintz were given concurrent suspended sentences of two years with three years' probation.

During the period August 13 to October 29, 1968, the Illinois Sports News, a publication containing horse racing information and known as a scratch sheet, was published in Chicago, Illinois, daily except Sunday. On each publication day approximately 90 copies in a brown manila envelope were put on the 8:30 A.M. train of the Chicago, South Shore and South Bend Railroad at the Randolph Street station in Chicago for delivery to the Hammond, Indiana, station at 9:02 in the morning.

At ten o'clock every day George Frost, an employee of Hammond News Agency, went to the Hammond station and picked up the brown envelope which at that time of day contained only 30 copies of the scratch sheet and two smaller envelopes with money. The Hammond News Agency was billed by and paid the Illinois Sports News for the 90 daily copies at 20 cents each and resold the copies for 35 cents each. Frost testified that a Ray Goodman was authorized to pick up 22 copies daily and to pay Hammond News Agency weekly for those copies. The money picked up by Frost each day was equal to the difference between 68 (90 less the 22 taken by Goodman) and 30 scratch sheets multiplied by 35 cents.

Frost then delivered the 30 remaining sheets to three customers, the Alexander Book Store (7 copies), Friendly Billiards (13 copies) and the balance to the Sibley Newsstand. Frost also delivered the money to the Sibley Newsstand and Sibley was billed by and paid the Hammond News Agency at 30 cents a copy for the number of sheets it received and for the number of sheets represented by the money it received.

A bookmaking operation was conducted by Erlenbaugh on the premises known as Paul's Smoke Shop at 103 State Street, Hammond. Customers entered the bookmaking enterprise through a rear door opened by a doorkeeper who peered out in response to a knock on the door. Erlenbaugh and Mitchell took bets there. On many days between August 13 and October 29, 1968, Hintz would arrive at the South Shore railroad station in Hammond at about 9:00 A.M. in a 1959 green Pontiac. When the train arrived, the conductor would hand the station porter two envelopes, one containing the Illinois Sports News and the other containing another scratch sheet. The porter took the envelopes to the baggage room where they were opened, usually by Roy Woodward. Hintz and two or three other persons gathered around and each one took a quantity of scratch sheets and departed. Hintz went directly to 103 State Street, where the sheets were immediately utilized by the betting customers. The information contained in the scratch sheets came out earlier each day and was more complete than the horse racing information contained in regular newspapers.

In No. 18762, upon a jury trial, Adrian J. White was convicted on four counts, John C. Hintz (the same defendant as in No. 18761) on three counts and James Lloyd on two counts in violation of 18 U.S.C § 371 and § 1952. White received concurrent sentences of two years (six months to be served) and three years' probation; Hintz and Lloyd were given concurrent suspended sentences of two years with three years' probation.

The facts proved in 18762 were similar to those in 18761, except that the bookmaking establishment was conducted by White on premises known as State Recreation located at 658 State Street, Hammond. White and Hintz took bets there. Hintz and sometimes Lloyd picked up the scratch sheets at the train station and delivered them to the bookmaking premises, where they were promptly used in the operation.

In No. 18764, upon a jury trial, Frank J. Kelly was convicted on one count in violation of 18 U.S.C. § 1952 and on one count of conspiracy to violate § 1952 in violation of 18 U.S.C. § 371. He received concurrent sentences of two years (six months to be served) followed by three years of probation.

The facts proved in 18764 were similar to those in 18761, except that Kelly's bookmaking establishment was located at 519 Conkey Street, Hammond. Ray Goodman, who worked for Kelly, had agreed with George Frost of the Hammond News Agency that Goodman would pick up Kelly's copies of the Illinois Sports News directly at the Hammond station and deliver them to Kelly's establishment.

In No. 18765, upon a jury trial, Raymond J. Kulik was convicted on four counts and Eddie Dobrowski was convicted on three counts of violating 18 U.S.C. § 371 and § 1952. Kulik received concurrent sentences of two years (six months to be served) followed by three years' probation. Dobrowski was given concurrent suspended sentences of two years with three years' probation.

The facts proved in 18765 were similar to those in 18761, except that the bookkeeping operation was carried on at 4534 Hohman Avenue, Hammond, by Kulik. Kulik and Dobrowski took bets there. Ray Goodman delivered copies of the Illinois Sports News to 4534 Hohman Avenue.

In No. 71-1140, upon a jury trial, Edward Joseph Misiolek, Robert Ray Tumlin and Alex Strosky were each convicted upon four counts in violation of 18 U.S.C. §§ 371 and 1952. Misiolek and Strosky were sentenced to concurrent terms of two years (six months to be served) followed by three years' probation. Tumlin was given a concurrent suspended sentence of two years with three years' probation on one count; imposition of sentence was withheld on three counts.

The facts proved in 71-1140 were similar to those in 18761, except that the bookmaking establishment was conducted on premises known as the Four Acres Recreation Bar located on 112th Street, Hammond, where Tumlin took bets and where Misiolek and Strosky were observed. Roy Woodward daily picked up several copies of the Illinois Sports News at the Hammond railroad station. On several occasions during September and October, 1968, Woodward left some of the scratch sheets at Sander's Restaurant where one Joe Barnett picked them up and drove off in a Cadillac accompanied by Tumlin or Misiolek. They drove to the J & J Body Shop, parked the car and walked to the Four Aces, where the sheets were utilized in the betting operation.

In all five cases, evidence was introduced showing that the number of scratch sheets ordered by Hammond News Agency dropped off sharply after the five bookmaking operations were shut down shortly prior to the indictments.

II

The principal question urged by all defendants is whether, since Illinois Sports News is a newspaper, the shipping of this newspaper by means of an interstate carrier constitutes the use of an interstate facility sufficient to charge the defendants with violations of the Travel Act.

Section 1953(a) provides in part, "Whoever, except a common carrier in the usual course of its business, knowingly carries or sends in interstate * * commerce any * * * paraphernalia, * * * paper, or writing * * * used, or to be used * * * in * * * bookmaking * * * shall be fined * * * or imprisoned * * * or both."

Section 1953(b) provides in part, "This section shall not apply to * * * (3) the carriage or transportaion in interstate * * * commerce of any newspaper or similar publication."

In United States v. Kelly, 328 F.2d 227 (6th Cir. 1964), the court of appeals held that the Louisville Daily Sport News, which was published by the Kelly family (who also published the Illinois Sports News) and which was made up of material copied from the Illinois Sports News, came within the ambit of "any newspaper or similar publication" and was therefore exempt from the operation of §...