United States v. Miller

• Decision Date: 21 July 1967
• Docket Number: 15935.,No. 15934,15934
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard MILLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fenton Leon BASH and Samuel Woods, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

379 F.2d 483 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Richard MILLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Fenton Leon BASH and Samuel Woods, Defendants-Appellants.

Nos. 15934, 15935.

United States Court of Appeals Seventh Circuit.

June 9, 1967.

Rehearing Denied July 21, 1967.

Max Cohen, Robert R. Garrett, Gary, Ind., for appellant.

Philip Wilens, Dept. of Justice, Washington, D. C., Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., for appellee, Robert M. Ornstein, Atty., Dept. of Justice, of counsel.

Before SCHNACKENBERG, KNOCH and CUMMINGS, Circuit Judges.

Rehearing Denied July 21, 1967, en banc.

CUMMINGS, Circuit Judge.

These companion cases were tried ten days apart by the same District Judge, with the same counsel representing the three defendants. Both cases involve the construction of 18 U.S.C. § 1952, which was added to the Criminal Code in 1961 as a part of the Attorney General's program to combat gambling, narcotics, prostitution, liquor and other offenses.

The common question in these cases is whether Section 1952 requires an intent to violate federal law by using any facility in interstate commerce. The District Court held that no such intent was required, and we agree.

In the first of the two cases, Richard Miller operated the Miller Recreation Parlor in Gary, Indiana. His premises consisted of a poolroom, barber and tobacco shop. Miller operated a baseball gambling pool there. The pool was concededly illegal under Indiana law. His patrons purchased baseball tickets. Game scores were obtained from a Western Union tickertape and posted on a blackboard. Miller would use the tickertape to determine baseball pool winners on days when the games were all completed in the afternoon. As part of his duties, Miller's porter would post scores from the tickertape on the blackboard. The baseball information contained on the Western Union tickertape was transmitted from Chicago to Gary, Indiana. Miller paid federal wagering taxes. Because of his admissions that the tickertape was used on occasion to determine payoffs, he does not question the sufficiency of the evidence to show his guilt.

In the second case, defendants Fenton Bash and Samuel Woods contend that there was no substantial evidence to show their guilt. This point was raised by their motion for a new trial. In denying that motion, the District Court ruled that there was "ample evidence * * * before the jury concerning defendants' carrying on of an unlawful gambling enterprise and the use of the wire tickertape facility which defendants had installed to promote and facilitate the carrying on of gambling activity they knew to be unlawful by the posting of scores from the machine to a blackboard on the premises" (258 F.Supp. at pp. 812-813).

In the case involving Bash and Woods, the evidence showed that Bash owned and Woods operated the Club Poolroom (also known as the Club Lunch) in Gary, Indiana. As in the Miller case, a baseball pool was operated on the premises in known violation of Indiana law. The customers used the Western Union tickertape there to post baseball scores on blackboards. Ralph ("Rum") Weinert also posted the tickertape results on the blackboards. Defendants' clerk Joseph Ortman slipped Weinert money "to get something to eat" in return for Weinert's casual work behind the cigar counter. As in the Miller case, the information transmitted by the Western Union tickertape originated in Chicago, and the federal wagering taxes were paid. Bash told an FBI agent that he used this machine "as a convenience in computing the end-of-game scores". Woods made similar admissions.

Although there was no evidence that Miller or Bash personally posted scores obtained from the tickertape, the machine was used in their establishment to tabulate baseball scores to compute winning tickets. The applicability of the statute does not depend on whether a defendant personally operates the tickertape in conjunction with an illegal baseball pool. The key word of the statute is "uses", one of the most comprehensive words in our language. 91 C.J.S. 513, 518-519. This verb is defined in Webster's Third New International Dictionary as "to carry out a purpose or action by means of: make instrumental to an end or process: apply to advantage: turn to account * * *". Synonyms are "employ, utilize, apply, avail". (Idem p. 2524.) This word is to be given its ordinary meaning (Swalley v. Addressograph-Multigraph Corporation, 158 F.2d 51, 54 (7th Cir. 1946), certiorari denied, 330 U.S. 845, 67 S.Ct. 1086, 91 L.Ed. 1290; Great American Indemnity Co. of New York v. Saltzman, 213 F.2d 743, 746-747 (8th Cir. 1954), certiorari denied, 348 U.S. 862, 75 S.Ct. 85, 99 L.Ed. 679) and is sufficiently broad to encompass defendants' operations. As proprietor and operator, respectively, of this business, the defendants were responsible for the installation and presence of the ticker on their premises. They wanted the ticker in their establishment so that the customers could check the scores. They provided blackboards so that scores obtained from the ticker could be posted. They knew that these scores would be of interest to their baseball pool customers. With defendants' knowledge and approval, their customers promoted the pool by posting the scores obtained from the tickertape. These activities constituted a "use" of an interstate facility by defendants.

Even if the terms "use" were not sufficiently broad to include Bash's and Woods' activities, Section 2(b) of the Criminal Code,¹ which was included in the indictment, makes them liable as principals. Defendants Bash and Woods knew that their patrons were posting scores on the blackboards from information supplied by the tickertape. Thus through the use of an interstate facility the customers facilitated the carrying on of this business enterprise involving gambling violative of Indiana law. Because Woods and Bash consented to and condoned these illegal activities, they are punishable as principals. United States v. Leggett, 269 F.2d 35, 37 (7th Cir. 1959), certiorari denied, 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 156; United States v. Inciso, 292 F.2d 374, 378 (7th Cir. 1961), certiorari denied, 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135; United States v. Zizzo, 338 F.2d 577, 580 (7th Cir. 1964), certiorari denied, 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435. On appeal defendants have not challenged the applicability of Section 2(b) or assailed the instructions thereunder.

Defendants in the second case also apparently argue that the ticker did not facilitate gambling. Bash and Woods told FBI Agent Cox that the results of the tickertape machine were used to tabulate end-of-game scores, and for the purpose of paying off the baseball bets. It is true that the baseball pool could have been operated without the ticker, but nevertheless the ticker was maintained to obtain results as quickly as possible for the gambling customers. Section 1952 does not require that the ticker be essential to the gambling operation; it need only "facilitate" the carrying on of the illegal gambling. As used in this statute, "facilitate" means "to make easy or less difficult". United States v. Barrow, 212 F.Supp. 837, 840 (E.D.Pa.1962). The testimony of FBI Agents Cox and Hagan amply supports the jury's finding that defendants facilitated the carrying on of this gambling operation by keeping the ticker on their premises.

We next come to the question common to both cases, namely, whether the use of an interstate facility must be with intent to violate the Federal law and, concomitantly, whether ignorance of the Federal law should be considered by the jury in determining defendants' intent. Specifically, defendants argue that under Section 1952 an interstate facility must be used knowingly, willfully or intentionally. In resolving this question, reference of course must first be made to the statute itself. In pertinent part, Section 1952 of the Criminal Code (18 U.S.C. § 1952) provides as follows:

(a) Whoever * * * uses any facility in interstate or foreign commerce, including the mail, with intent to —

* * * * * *

(3) * * * promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

* * * shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

(b) As used in this section "unlawful activity" means (1) any business enterprise involving gambling * * * offenses in violation of the laws of the State in which they are committed * * *.

From the wording of this statute, it is apparent that Congress did not require any mens rea with respect to the use of an interstate facility. In relevant part, Congress only required that there be intent to facilitate the carrying on of any business enterprise involving gambling in violation of state laws. If Congress had intended to require specific intent with respect to the use of the interstate facility, the phrase "with intent to" or its equivalent would have been juxtaposed to modify "uses" in Section 1952(a).

Even though "intent" as employed in Section 1952 here refers to a violation of State laws, all three defendants assert that the Government was also required to prove that the defendants intentionally, knowingly or willfully used an interstate facility. They insist that the jury should have been instructed that ignorance on their part that they were violating a Federal law was a relevant factor in determining whether they were guilty. In a well-reasoned opinion, the District Judge rejected this construction of Section 1952. We approve his conclusion that "the use of a facility in interstate commerce is a necessary jurisdictional element of an offense under Title 18 U.S.C. § 1952 but that no specific mental element or specific intent * * * need be shown with reference to such use" (258 F.Supp. at p. 812). Similarly, in Turf Center, Inc. v. United...