United States v. Stonehouse, 71-1298.
Decision Date | 02 November 1971 |
Docket Number | No. 71-1298.,71-1298. |
Citation | 452 F.2d 455 |
Parties | The UNITED STATES of America, Appellee, v. John Matthew STONEHOUSE, Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Peter C. Fieweger, Franklin S. Wallace, Katz, McAndrews, Durkee & Telleen, Rock Island, Ill., for appellant.
Donald B. Mackay, U. S. Atty., Springfield, Ill., Max J. Lipkin, Asst. U. S. Atty., Peoria, Ill., for appellee.
Before KILEY, PELL and STEVENS, Circuit Judges.
During 1969 appellant was the operator of a tavern in Rock Island, Illinois, at which he regularly accepted wagers on sporting events in violation of Illinois law. He has appealed his conviction on both counts of an indictment charging violation of two federal statutes, 18 U.S.C. § 1084(a) and § 1952. Each count raises a question of statutory construction; in addition, he challenges the admissibility of the evidence tending to prove that the Western Union ticker tape machine in his tavern was an interstate facility.
The appeal from the conviction on Count I raises a precise issue. Does the activity of a professional gambler which is prohibited by § 1084(a) include the mere receipt as well as the transmission of the kind of information described in the statute? The issue is starkly presented because appellant's ticker tape enabled him to receive, but not to transmit, information which assisted in the placing of bets on sports events. The ticker tape is, therefore, unlike a telephone which provides a means for communication between two persons, each of whom normally transmits, as well as receives, some information during any use of the facility.
Although we recognize that there is language in at least one case involving the use of the telephone that points in the other direction1, we believe that the coverage of paragraph (a) of § 1084 is limited to prohibited transmissions and does not encompass mere reception. Our conclusion is supported by the text of the statute, by its legislative history, and by the carefully considered opinion in Telephone News System, Inc. v. Illinois Bell Telephone Co., 220 F.Supp. 621 (N.D.Ill.1963), affirmed, 376 U.S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83.
In that case the court rejected a Government contention that the word "transmission" as used in paragraph (a) meant receiving as well as sending:
In this case the Government advances a different argument. It contends that the statutory phrase "for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers * * *" modifies the noun "facility" rather than the verb "uses."2 This is not a tenable interpretation of the section. Unless the phrase modifies the verb, a professional gambler would violate § 1084(a) whenever he made an innocent use of a facility which someone else had used for an illegal purpose. Cf. United States v. Judkins, 428 F.2d 333 (6th Cir. 1970).
Moreover, the somewhat different language used in the House Report also indicates that the qualifying language was intended to modify the verb "uses" rather than the noun "facility."3 A reading of § 1084 in its entirety corroborates our conclusion that paragraph (a) is limited to "transmission," since the intent to encompass "transmitting or receiving" by the civil remedy authorized in paragraph (d) was plainly specified by using both words.
We, therefore, hold that the conviction on Count I must be reversed.
Appellant contends that the evidence did not prove that the ticker tape had been used "to facilitate" gambling within the meaning of the Travel Act, 18 U.S.C. § 1952. He contends there was no evidence that any specific bet was placed or any specific payment made on the basis of information received over the ticker tape. For purposes of decision we accept appellant's version of the record, but hold that such evidentiary detail was not essential to sustain a conviction.
The record plainly establishes that the gambling enterprise was a regular and significant portion of the business carried on in appellant's tavern. Even if the prompt availability of sporting information did nothing more than advertise the business and attract patrons to the premises where wagers were being solicited and taken, we believe the jury could properly conclude that appellant had installed and used the ticker tape with intent to "* * * facilitate the promotion, management, establishment, or carrying on * * *" of his unlawful activity. Cf. United States v. Miller, 379 F.2d 483, 485 (7th Cir. 1967),4 cert. denied, 389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d 281; United States v. Lookretis, 422 F.2d 647 (7th Cir. 1970), cert. denied, 398 U.S. 904, 90 S.Ct. 1693, 26 L.Ed.2d 63.
Dean Gerard, the manager of Western Union's Moline office, testified that in 1959 only two ticker tape machines were in service in Rock Island, one leased to appellant and the other to the local television station. He explained that Western Union gathered sporting information from various parts of the country at a center in Chicago where the information was compiled on a punch tape and sent out over a network to users' machines, which then printed the results on tape. When asked how information was sent from Chicago to Rock Island, he responded:
On cross-examination he acknowledged that he had never examined the circuitry himself and, therefore, did not know the exact circuitry of his own knowledge. Appellant then moved to strike the earlier testimony to the effect that the transmission from Chicago to Rock Island was routed via Davenport, Iowa. The motion was denied.
Thereafter, on redirect examination, Gerard produced a "Patron Maintenance and Trouble Log" for the machine used by appellant. The log made reference to two instances of service to appellant's installation in 1969 and contained a circuit map sketched schematically, purporting to diagram the circuitry from Davenport, Iowa, to Moline and thence to Rock Island, Illinois.5 Gerard testified that the log had been prepared by a maintenance man no longer in Western Union's employ, that it was the ex-employee's job to prepare and make entries in such documents, and that the log came from the regular files of the company. Over appellant's objections, the document was received in evidence.
Appellant offered no evidence tending to dispute the showing that the circuit was routed from Chicago to Rock Island via Davenport. On appeal he argues that the testimony and the exhibit were both inadmissible and, if excluded, the record would contain no evidence of an interstate transmission. We believe Judge Morgan's evidentiary rulings were correct.
We recognize, as appell...
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