United States v. Gerhart

• Citation: 275 F. Supp. 443
• Decision Date: 01 October 1967
• Docket Number: 522 (Beckley).,Cr. A. No. 513 (Beckley)
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America v. William Al GERHART.

275 F. Supp. 443

UNITED STATES of America v. William Al GERHART.

Cr. A. Nos. 513 (Beckley), 522 (Beckley).

United States District Court S. D. West Virginia.

October 1, 1967.

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Alfred N. King, Sp. Atty. U. S. Department of Justice, Washington, D. C., Milton J. Ferguson, U. S. Atty., Charleston, W. Va., for plaintiff.

M. E. Boiarsky, Charleston, W. Va., Katz, Katz & Kantor, Bluefield, W. Va., for defendant.

OPINION

MICHIE, District Judge.

Convicted by a jury on three counts of violating 18 U.S.C. §§ 1952 and 2,¹ William Al Gerhart moves this court in arrest of judgment and for a new trial. None of the multitudinous grounds urged in support of each of these motions, I conclude, is sufficient to warrant overturning the conviction.

It can be seen from the wording of the statute set forth above that the Government was burdened with showing that the defendant made use of a facility in interstate commerce with the intent to carry on an enterprise illegal under the laws of the state where it was located.

Advantageously located adjacent to the Greenbrier in White Sulphur Springs, West Virginia, the Colonial Club, a gaming establishment owned and operated by the defendant Gerhart, flourished for several years prior to a raid by Federal officers on September 18, 1963. The club, testified Gladys Brown, a former employee, had a seasonal operation running from April to November of each year. She had worked there beginning in September, 1961 and except for the off-season continued to be employed until July, 1963. Gambling equipment at the club, she also related, consisted of a roulette wheel, two blackjack tables, a dice table and five slot machines. Corroborating her testimony concerning the activities conducted at the club is the description of the club and the gaming operation there carried on related by Special F.B.I. Agent William B. Anderson, Jr. who had visited the club in an undercover capacity in September, 1962 and again in August, 1963. Another F.B.I. Agent, George Patterson, related at trial the substance of two conversations he had had with the defendant, one in March of 1962 and the other in May of 1963 which would lead one to believe that the defendant was engaged in conducting at the Colonial Club a gaming operation of a substantial nature which he planned to continue indefinitely. Several patrons of the club also testified for the Government and described the games of chance in which they had engaged while there. All the testimony adduced from these sources demonstrated that both for some time prior to, and also for some time after the dates on which the proscribed use of the mails occurred, the defendant, except for seasonal variations, continuously operated the Colonial Club as a gaming establishment.

It was customary for the defendant to cash at the Colonial Club checks drawn on out-of-state banks. Not only did he take such checks in exchange for cash, but also according to the testimony at trial he accepted checks drawn on foreign banks directly in satisfaction of gambling debts and as payment for chips. Mr. Paul Slattery, a patron of the club over Labor Day week-end, 1962, cashed with the defendant two checks totaling $200.00 drawn on the Union Trust Company, Washington, D. C. Defendant's endorsement and the stamp of the Bank of White Sulphur Springs established that these checks were negotiated there. Government witness John Crawford who had visited the club in May, 1963 issued to the defendant checks drawn on a New York bank totaling $19,000 directly to cover gambling losses. That these checks were presented for cash by the defendant at the Bank of White Sulphur Springs shortly thereafter is established by the testimony of F.B.I. Agent George Patterson who, with the consent of the bank's president, examined them after they had been presented. The Crawford checks as well as the checks of other patrons examined by Agent Patterson on May 20, 1963, and the Slattery checks previously, were, as evidenced by the notations on them, forwarded to the drawee banks through normal clearing channels. The United States mail, testified the bank president, is the means used by the Bank of White Sulphur Springs to transmit checks to the Federal Reserve Bank of Richmond, Virginia. The gravamen of the offense alleged in the two counts of Indictment No. 513 is that the defendant Gerhart used or caused to be used a facility of interstate commerce, in this case the United States mail, by causing checks to be sent by mail through the normal clearing channels.

On December 18, 1962 Special Agent William B. Anderson, Jr. received at his home in Pennsylvania what amounted to a Christmas card enclosed in an envelope. The envelope containing the card was postmarked White Sulphur Springs, West Virginia and bore the return address of the Colonial Club. The card inside which contained a facsimile of a poker chip carried the endorsement "Greetings of the Season * * * Redeemable on presentation at the Club for full value by customer only" and additional notations indicating that it came from the Colonial Club. The card bore the signature of the defendant Gerhart, affixed apparently by mechanical means. The single count of Indictment No. 522 charged defendant with the use of the mail for the purpose of sending this card which was designed to promote and facilitate the operation of the Colonial Club.

Of course, it was also necessary for the Government to show that the defendant's operation was carried on in violation of the laws of West Virginia. Games of unequal chance favoring the proprietor of the house are proscribed by West Virginia law. Special Agent Anderson described the odds at roulette. The odds at roulette, he explained, are 38 to 1. The Colonial Club paid 35 to 1; the disparity favored the house. Witness John Crawford, an expert on many gambling games, described the odds present in the game of craps as it was conducted at the Colonial Club. He said that a cautious, knowledgeable player could keep the odds as low as 1.4% in favor of the house; the average player, he said, generally plays in such a manner that the odds favor the house by as much as 5%. Two of the slot machines seized by the Government during the raid of September 18, 1963 were examined in the F.B.I. laboratories. F.B.I. employee Bruce Fisher, who had tested the machines thoroughly, derived statistics showing that the 25-cent machine retained approximately 27% of all monies played and that the 50-cent machine retained approximately 33% of all money inserted for playing purposes.

With the evidentiary development at trial thus chronicled, I turn to a consideration of defendant's arguments. He commences his multipronged attack by an assault upon the constitutionality of § 1952. He says that section violates the due process clause of the Fifth Amendment because the prohibited offenses are indefinite and vague; that it contravenes the Fifth Amendment's proscription against self incrimination; that it improperly proscribes a citizen's constitutionally protected right of travel; that it contravenes the due process protection of the Fifth Amendment because, dependent upon the laws of each state, it applies discriminatorily; that it exceeds the power granted Congress under the commerce clause; that it is contrary to the Tenth Amendment in that it invades the powers reserved to the states and, finally, that it violates the Eighth Amendment's proscription against excessive fines and cruel and unusual punishments.

A plenitude of decisions necessitates the immediate rejection of most of defendant's contentions; only a few require extended discussion.

Section 1952 is not unconstitutionally vague. Not a single portion of the statute when given an ordinary, common-sense interpretation can be considered as not affording a person notice of what he must do to violate it. This contention has many times been laid to rest. United States v. Barrow, 363 F.2d 62 (3d Cir. 1966); United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964); Bass v. United States, 324 F.2d 168 (8th Cir. 1963).

In like fashion, defendant's argument of unconstitutional discrimination must also fail. Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963); United States v. Borgese, 235 F.Supp. 286 (S.D.N.Y.1964); United States v. Ryan, 213 F.Supp. 763 (D.Colo.1963) are but a few of the many cases which hold unequivocally that legislation which constitutes an exercise by Congress of its plenary power over commerce is not repugnant to the due process clause of the Fifth Amendment merely because variation in state laws produces differences in application.

Assuring the demise of defendant's position that § 1952 exceeds the power of Congress over commerce are the decisions in United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964) and Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963). It is beyond question that Congress has the power to deny the facilities of interstate commerce to traffic of persons or objects which it deems inimical to the general welfare. Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903); Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913). The application of this long understood principle by Turf Center and Zizzo to Section 1952 is unquestionably correct. Congress has the power under the commerce clause to make it unlawful to travel from one state to another or to use a facility of interstate commerce such as the mail to promote a gambling enterprise illegal by the laws of the state where the gambling was carried on.

Ample authority also refutes defendant's contention that § 1952 is an unconstitutional invasion by Congress of the powers reserved to the states. See, e. g., United States v. Barrow, 363 F.2d 62 (3d Cir. 1966); United States v. Borgese, 235 F.Supp. 286 (S.D.N.Y.1964); United States v. Smith, 209 F.Supp. 907...