United States v. Teemer, Crim. No. 7422

Citation214 F. Supp. 952
Decision Date19 March 1963
Docket NumberCrim. No. 7422,7423.
PartiesUNITED STATES of America, Plaintiff, v. Charles Frederick TEEMER, Joseph N. Pecora, Domenic Caputo, Sidney Bahm, Joseph Tamburro, Paul A. Bello, Michael Simera and Alex E. Zrinyi, Jr., Defendants. UNITED STATES of America, Plaintiff, v. Abraham SILVERHART, Peter Short, Domenic Bieno, Joseph Rizzo and Louis Anzelone, Jr., Defendants.
CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia

Robert E. Maxwell, U. S. Atty., John H. Kamlowsky, Asst. U. S. Atty., Alfred N. King, Atty. Dept. of Justice, for the Government.

Gilbert S. Bachmann, John B. Garden (Bachmann, Hess, Bachmann & Garden), Wheeling, W. Va., for defendants.

CHARLES F. PAUL, District Judge.

These related criminal prosecutions concern the application of the relatively new Title 18, Section 19521 aimed at gambling and certain other violations of State law having interstate aspects.

The cases are before me on pre-trial motions to dismiss the indictments and other motions.

The indictment in No. 7423 is in eight counts. Count One2 is a so-called "conspiracy" count invoking Title 18, Section 371 (with reference to conspiracy), Section 1952 and (apparently with reference to Teemer and Pecora) Section 2.

Counts Two through Eight each charge Teemer and Pecora (apparently as aiders and abettors) and one of the other defendants with substantive offenses, constituting violations of Section 1952, on differing dates involving different acts of travel or use of facilities. In each of these counts the offense is charged in substantially the same language as that contained in the paragraph lettered A. in Count One (see Footnote 2).

The indictment in No. 7422 is in one count, charging the five defendants jointly with violation of Section 1952 "(o)n or about the 6th day of October, 1962" in substantially the same language as said paragraph A. of Count One in No. 7423. Why these five were indicted separately is unexplained. When the court suggested the consolidation for trial of 7422 with 7423, the defendants specifically objected and the Government's counsel did not indicate any position on the matter, although it was admitted by all parties that, if tried separately, the cases would involve much, if not all, of the same testimony. I will consider at a later time whether consolidation under F.R. Cr.P.Rule 13 would effect any prejudice justifying separate trial under Rule 14.

From the indictments, the bill of particulars heretofore supplied upon the court's order, and from what I hope are permissible inferences from the guarded language of both, I gather that the following is a fair statement of some of the facts which the Government hopes to prove:

Teemer is the owner and principal operator, and Pecora is his right-hand man, in the operation of a gambling club or casino known as the Jockey Club, located on U. S. 30 in the narrow northern panhandle of West Virginia. The Pennsylvania-West Virginia state line is less than a mile east of the Jockey Club, and the Ohio-West Virginia line is about four miles to the west. The principal, if not the only, business of the Jockey Club is gambling. For this purpose, it maintained roulette wheels and tables, "crap" tables, a blackjack table and slot machines. It also maintained some food and drink services for its customers. All of the defendants, other than Teemer and Pecora, were employed by one or the other of them in various phases of the "business enterprise".

West Virginia has a statute (Code Chapter 61, Article 10, Section 1; Michie's Code 6094) which makes it a misdemeanor for any person to keep or exhibit or be a partner or concerned in interest in keeping or exhibiting certain gaming tables and devices. Various judicial decisions have held that it was properly established that craps tables and slot machines fitted the statutory definition and that "keepers and exhibitors" include all persons who have the possession and custody or control of such tables, or supervise the games played thereon. See State v. Henaghan, 73 W.Va. 706, 81 S.E. 539.

Some of the employee defendants resided in either Pennsylvania or Ohio, or, while temporarily in West Virginia, maintained a residence for their families in either Pennsylvania or Ohio. All of them traveled from either Pennsylvania or Ohio to the Jockey Club for the purposes of their employment on the respective dates charged, and thereafter performed their appointed tasks. At least one of them traveled back and forth between the Jockey Club and East Liverpool, Ohio, where Teemer maintained a bank account which was used in the business.

The motions to dismiss the indictment in 7423 make the following points:

"1. The statute under which the offense is drawn, § 1952 of Title 18, is repugnant to Article V and Article VI of the Amendments to the Constitution of the United States.
"2. Each count of the indictment is insufficient to charge an offense under the statute for the reason that it states as a legal conclusion in the language of the statute that acts were `thereafter' performed involving unlawful gambling activities, without stating facts or without describing the nature of the acts or when or where they were performed.
"3. Each count of the indictment fails to plead an offense under the laws of the State of West Virginia."

Subject to the ruling on the motions to dismiss, and in the alternative, the defendants Teemer and Pecora moved to require the Government to consolidate Counts Two through Eight in 7423 into Count Two, and to dismiss the other counts, on the ground that the Government is attempting to fragment a single prohibited course of conduct into a series of separate crimes.

The defendant Caputo similarly moved to consolidate Counts Two and Three, in which he is named, and to dismiss one or the other.

The defendants also moved to compel an election by the Government as between the conspiracy count and the other count or counts and for severance thereof under F.R.Cr.P. Rule 14.

THE MOTIONS TO DISMISS

1. Defendants' counsel strenuously insist that Title 18, Section 1952, violates the Fifth and Sixth Amendments to the Constitution because the acts or conduct which it seeks to make criminal are couched in such nebulous terms and in such vague, ambiguous and uncertain language, that persons of ordinary intelligence cannot determine in advance what acts or courses of conduct are proscribed.

The cases cited by the defendants are not apposite to the statute under consideration. The prohibited acts under Section 1952 are not indefinite — the standard is spelled out and it is not vague. It makes it a criminal act for one to travel with intent to promote, manage, establish or carry on, or, facilitate the promotion, etc., of an unlawful activity (in this case, a gambling establishment) when the one, after traveling with such intent, carries the intent into effect or attempts so to do. The only word here used which arguably might require definition is the word "facilitate", and that is a word in common use, whose meaning is well known. It means to help — make easy or less difficult.

Only two officially reported cases, considering the constitutionality of Section 1952, have been uncovered by counsel's research; United States v. Barrow, 212 F.Supp. 837 (E.D.Pa.1962) and United States v. Smith, 209 F.Supp. 907 (E.D. Ill.1962). In both of them the contention of unconstitutionality was rejected.

Defendants' counsel posed three hypothetical situations: The milkman making deliveries on his milk route, the charwoman sweeping out the premises, and the case of the man who travels with the requisite intent and, after entry into the State, avails himself of his locus poenitentiae and abandons his unlawful purpose for a substantial period of time, then again changes his mind and engages in the unlawful activity within the State. These situations, both as to the reach of the statute by reason of the use of the word "facilitate" and the failure of the statute to fix a limit on the interval of time within which the gambling activities must follow the prohibited act of travel, are farfetched. No court would have difficulty in disposing of them if and when they should arise, and no one — not even a layman — could be misled by the statutory language in these respects. The fact that a criminal statute must be interpreted with reference to its applicability to a given state of facts does not, in itself, render the statute unconstitutionally vague. See United States v. National Dairy Products Corp., 83 S.Ct. 594.

2. The second ground of attack by the defendants upon the indictments advances the argument that there are two essential parts to the offense charged; first, the travel with the requisite intent, and, second, the performance of acts of promotion, et cetera, "thereafter". Admitting that the first of these essentials is properly and sufficiently pleaded in the indictments, defendants contend that the second is pleaded only in the generic terms of the statute, and that it is essential that the specific acts of promotion, et cetera, following the travel be pleaded with particularity, so that the defendants may be apprised of the charges they will be compelled to meet on trial.

The defendants' principal reliance is upon the decision in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L. Ed.2d 240 (1962). In that case the defendants were charged with failing to answer questions put to them by congressional committees. The statute provides that the question must be one "pertinent to the question under inquiry". The indictments stated only that the questions asked and unanswered were "pertinent to the question under inquiry", and did not state what the "question under inquiry" was. The Supreme Court held that the indictments were bad because they did not "descend into particulars", and that this failure could not be cured by a bill of particulars. The court pointed out that the Government, throughout the...

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