United States v. McCormick, 18839.

• Decision Date: 12 May 1971
• Docket Number: No. 18839.,18839.
• Citation: 442 F.2d 316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene Albert McCORMICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.2d 316 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Albert McCORMICK, Defendant-Appellant.

No. 18839.

United States Court of Appeals, Seventh Circuit.

May 12, 1971.

James Manahan, DeWitt, Richards & Manahan, Indianapolis, Indiana, for defendant-appellant.

Stanley B. Miller, U. S. Atty., Richard Darst, William W. Knowles, Asst. U. S. Attys., Southern Dist. of Ind., Indianapolis, Ind., for plaintiff-appellee.

Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges.

PER CURIAM.

In July 1969, a 4-count indictment was returned against defendant, charging him with using the mails to facilitate a lottery forbidden by Indiana law. The indictment was brought under 18 U.S.C. § 1952.¹ Each count covered different months in 1968. After a bench trial, defendant was found guilty on each count. As to Count I, he was fined $1,000, sentenced to 90 days "in a jail type or treatment institution," and placed on probation for four years and nine months. Any sentence as to the remaining counts was suspended.

The only question we consider is whether this prosecution exceeds the intended limits of federal criminal jurisdiction under Section 1952. Here defendant advertised for salesmen to peddle lottery tickets even though lotteries violated Indiana law. These advertisements were placed in the Indianapolis Recorder, which was a weekly newspaper for black people. Its total 15,000 circulation consisted primarily of residents of the Indianapolis inner city. In addition, a comparatively small percentage of copies was mailed to other residents of Indiana. The out-of-state, mailed circulation was 200 to 500 and was not limited to neighboring states.² The testimony does not show that the defendant sought to obtain any salesmen from outside Indiana by advertising in the Indianapolis Recorder, nor was there any showing that he employed out-of-state salesmen through use of these advertisements or otherwise. Rather, the testimony shows that he sought to escape any transgression of federal law by avoiding any interstate aspects in his gambling operation. Seemingly, all his salesmen were Hoosiers, all the sales of lottery tickets were intrastate, and the proceeds were kept in Indiana.

The Government relies upon neither the fact that defendant procured publication of his advertisements in the Indianapolis Recorder nor the mailings of the paper to Indiana residents as the basis for the federal jurisdiction. It urges instead that the interstate mailings alone constituted sufficient use of a "facility in interstate * * * commerce, including the mail, with intent to * * * facilitate" the illegal lottery, within the scope of Section 1952. We disagree.

In Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493, the Supreme Court reversed the conviction of a gambler whose lottery operation was frequented by out-of-state bettors. Construing this same Section, the Court emphasized the intent of Congress to strike at the truly interstate operations of organized crime. The Court refused to give broad-ranging application to the statute, particularly since Congress gave no indication that it wished to

"alter the sensitive federal state relationships, * * * overextend limited federal police resources, * * * or produce situations in which the geographic origins of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies." 401 U.S. at p. 812, 91 S.Ct. at p. 1059.

Similarly, in United States v. Altobella, 442 F.2d 310 (7th Cir. 1971), this Court struck down the conviction of two extortioners under Section 1952 where jurisdiction was claimed on the basis that the victim's check had been cleared by mail between Chicago and Philadelphia, stating:

"When both the use of the interstate facility and the subsequent act is as minimal and incidental as in this case, we do not believe a federal crime has been committed." 442 F.2d at

...