United States v. Stagman, 20621

• Decision Date: 27 July 1971
• Docket Number: No. 20621,20636.,20621
• Citation: 446 F.2d 489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles STAGMAN et al., Defendants-Appellants, v. Elmer Lawrence WIETHORN et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

446 F.2d 489 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Charles STAGMAN et al., Defendants-Appellants, v. Elmer Lawrence WIETHORN et al., Defendants-Appellants.

Nos. 20621, 20636.

United States Court of Appeals, Sixth Circuit.

July 27, 1971.

James L. Cobb, Jr., Covington, Ky., for Charles Stagman and others.

Morris Weintraub, Newport, Ky., for Elmer Lawrence Wiethorn and others; James L. Cobb, Jr., and Peter F. Beasley, Covington, Ky., on brief.

Maurice K. Merten, Atty., Dept. of Justice, Crim. Div., San Francisco, Cal., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., Robert Gary, Atty., Dept. of Justice, Washington, D. C., on brief.

Before EDWARDS and McCREE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

McCREE, Circuit Judge.

We consider two appeals by several defendants from convictions in the United States District Court for the Eastern District of Kentucky for violating the Travel Act, 18 U.S.C. § 1952.¹ We have consolidated these cases for purposes of this opinion because, although the facts differ in some respects, the decisive issues of law are the same.

The Travel Act subjects to criminal penalties:

(a) Whoever travels in interstate * * * commerce or uses any facility in interstate * * * 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 * * *.

18 U.S.C. § 1952(a) (3). "Unlawful activity" is defined more narrowly than in ordinary usage. It includes, inter alia, "any business enterprise involving gambling * * * offenses in violation of the laws of the State in which they are committed * * *." 18 U.S.C. § 1952 (b) (1).

The case against Charles Stagman may be taken as representative of those involving the other defendants. Stagman, a resident of Cincinnati, Ohio, was involved in the operation and management of the Flamingo Club in Newport, Kentucky, a city of 30,000 which lies just south of Cincinnati across the Ohio River. Stagman took the witness stand at trial and admitted that with others he operated a bingo game at the Flamingo. It is not disputed that he used facilities of interstate commerce in this enterprise: he commuted across the Ohio-Kentucky boundary every working day, and the bingo equipment was purchased from a company in Englewood, Colorado (assertedly the only licit manufacturer of such material in the United States). There was no contention, as in United States v. Judkins, 428 F.2d 333 (6th Cir. 1970), that appellants did not intend to use interstate instrumentalities in furtherance of what the Government claims was an illegal enterprise.

Stagman's only defense is that he believed in good faith, and had reasonable grounds for doing so, that the Flamingo bingo game was legal under Kentucky law. The District Court permitted him and other defendants to present evidence in support of this claim. Stagman testified that the Sheriff, Deputy Sheriff, and an assistant Commonwealth's Attorney of Campbell County (where Newport is located) advised him that bingo games were legal, if certain rules were observed.² Stagman testified that he and others associated with the Flamingo operation complied with these rules. The Sheriff and Deputy Sheriff also testified at trial, and their testimony corroborated Stagman's.

The District Court declined to deliver appellant's requested jury instructions that attempted good faith compliance with state law is a defense to a Travel Act prosecution.³ Appellant's requested charge would have required a finding of "specific intent," i. e., that defendants acted "intending with bad purpose either to disobey or to disregard the law," as a prerequisite to a guilty verdict. See W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 10.03, at 124 (1965); cf. 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.03, at 273-74 (1970). The District Court instead instructed the jury that the operation of a bingo game was illegal under the laws of Kentucky, and that the only intent required by the federal statute was the intent to do, as the Government states, "that which is unlawful."⁴ Recourse to legislative history, however, fails to reveal whether Congress, by its use of the language "with intent to * * * carry on * * * any unlawful activity" meant to include mens rea as an element of the crime. See United States v. Lester, 363 F.2d 68, 73 (6th Cir. 1966).

In a recent case in which this precise issue was not presented, another panel of this court stated:

To successfully prosecute one under the above statutory provision § 1952, the United States must prove the following elements: (1) that the accused voluntarily traveled in interstate commerce or used the facilities of interstate commerce; (2) that he attempted to or did in fact promote, manage, establish, carry on or facilitate the promotion, management, establishment or carrying on of any one of certain statutorily defined activities; and (3) that the accused formed a specific intent to promote, manage, establish, carry on or facilitate one of the prohibited activities. (Emphasis supplied.)

United States v. Gebhart, 441 F.2d 1261, 1263 (6th Cir. 1971). The court went on to explain what was required to establish a defense of lack of specific intent:

In order to assert a defense of a mistake of law based upon a good faith reliance on the representations of public officials, the Appellants must demonstrate that they received communications from public officials in a situation in which reliance would have been justified.

Id. at 1265. This requirement of mens rea is consistent with that of the majority of the Courts of Appeals which have directly addressed this question. These courts have stated that knowing and wilful intent to violate state laws is an element of the crime proscribed by the Travel Act. United States v. Miller, 379 F.2d 483, 486 (7th Cir. 1967), aff'g United States v. Bash, 258 F.Supp. 807, 812 (N.D.Ind.1966); Turf Center, Inc. v. United States, 325 F.2d 793, 797 (9th Cir. 1963); see also United States v. Hanon, 428 F.2d 101, 108 (8th Cir. 1970) (en banc) (citing Bash and Miller with approval, evidence supports finding of violation of Missouri gambling law, one element of which is specific intent); United States v. Chase, 372 F.2d 453, 462 (4th Cir. 1967) (dismissing defendant's argument that lack of knowledge of state offense was a defense on the ground that evidence before the jury supported the conclusion that appellant knew he had violated state law and intended to do so, and not on the grounds that such a defense was insufficient as a matter of law). Contra, United States v. Hawthorne, 356 F.2d 740, 742 (4th Cir. 1966), cert. denied, 384 U.S. 908, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966), followed in United States v. Wechsler, 392 F.2d 344, 347 n. 3 (4th Cir. 1968), cert. denied, 392 U.S. 932, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968).⁵

At common law, mens rea was an element of all felonies, and although it is clear that a legislature can make certain conduct a crime even in the absence of men rea — see, e. g., Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933) — we do not ordinarily assume that it has done so without some clear indication. See Wharton's Criminal Law and Procedure § 60, at 135-36 (1957). ("Ordinarily, intent is an essential element of the crime." Id. at 135.) The Supreme Court has held that "the mere omission * * * of any mention of intent will not be construed as eliminating that element from the crimes denounced," Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952), in the absence of "any affirmative instruction from Congress to eliminate intent from the offense * * *." Id. at 273, 72 S.Ct. at 255. Here, in contrast to the statute involved in Morissette, Congress has used the word "intent" in the statute. 18 U.S.C. § 1952 proscribes the crossing of state lines or the use of instrumentalities of interstate commerce "with intent to * * * carry on * * * unlawful activity." The Government argues that the word "intent" is meant to apply only to the verb "to carry on" and not to its object, "unlawful activity" — i. e., that the crime does not require knowledge that the activity is unlawful. We prefer the more natural reading, in which "intent" refers to the entire phrase "to * * * carry on * * * any unlawful activity."

This interpretation makes sense in light of the purposes and structure of the Act. Section 1952 subjects to harsh penalties — a maximum of five years' imprisonment and a $10,000 fine — persons who cross state lines to violate what may be petty gambling laws. E. g., Ky. Rev.Stat. § 436.200, which imposes a fine of not less than $20 and not more than $100 on "any person who engages in any hazard or game on which money or property is bet, won or lost, in any case in which no other penalty is prescribed, * * *." When Congress has in effect incorporated state laws within a federal criminal statute, and only because of the employment of interstate facilities has increased by many times the penalty which the state imposes for the infraction, we should look very carefully indeed for an indication that it intended that penalty to apply to persons who did not know that they were violating any law. Cf. Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 96 L.Ed. 288 (1952). We find no such indication in the language or legislative history of the Travel Act.

The District Court's refusal to deliver the proffered instructions on specific intent precluded any consideration of this defense,⁶ which, since the trial, has been approved by this court, aligning itself with the majority of the Courts of Appeals which have spoken directly on the question. Accordingly, we hold that the convictions must be reversed and the cases remanded for new trials in which the defense of good faith attempts at compliance should be...