United States v. Yaquinta

• Decision Date: 01 May 1962
• Docket Number: No. 7340.,7340.
• Citation: 204 F. Supp. 276
• Court: U.S. District Court — Northern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Carl YAQUINTA, Philip Joseph Hankish, Howard Oscar Allen, Albert Downing, Nick Vukovich, and Louis Gresko, Defendants.

204 F. Supp. 276

UNITED STATES of America, Plaintiff, v. Carl YAQUINTA, Philip Joseph Hankish, Howard Oscar Allen, Albert Downing, Nick Vukovich, and Louis Gresko, Defendants.

No. 7340.

United States District Court N. D. West Virginia, at Wheeling.

May 1, 1962.

Robert E. Maxwell, U. S. Atty., John H. Kamlowsky, Asst. U. S. Atty., John P. Diuguid, Sp. Counsel, Department of Justice, for plaintiff.

Gilbert S. Bachmann, Wheeling, W. Va., for defendants Vukovich and Gresko.

Arch W. Riley, Riley & Riley, James A. Byrum, Wheeling, W. Va., for defendants Yaquinta, Hankish, Allen and Downing.

CHARLES F. PAUL, District Judge.

Count One of the indictment charges all six defendants with conspiracy to violate Title 18, United States Code § 1084. Counts Two and Three of the indictment charge all of the defendants, as principals and accessories, with the substantive offenses of violating said § 1084 on December 4, 1961, and December 6, 1961, respectively. All defendants have moved to dismiss the indictment with respect to the charged offenses.

Language contained in the indictment, supplemented by the bills of particulars filed by the Government, reveals the following claimed state of facts:

The defendants Allen and Downing conducted a book-making shop for off-track wagering on horse races, in Wheeling, West Virginia. The defendants Vukovich and Gresko conducted a similar and related book-making shop in Weirton, West Virginia. Part of the business of the two shops was taking bets and wagers on the results of horse races run at Waterford Park, near Chester, West Virginia. The defendant Hankish attended the races at the track, and, by means of a portable radio transmitter or walkie-talkie, broadcast the results of the races. The defendant Yaquinta was stationed in a housetrailer at Arroyo, West Virginia, a short distance from the track, where he received the information broadcast by Hankish on a radio receiving set. Immediately after reception of the information, Yaquinta relayed the information, by long-distance telephone, to the bookie shops in Weirton and Wheeling. To the knowledge of all defendants, the lines of the Telephone Company crossed the river, which is the border between West Virginia and Ohio, to the East Liverpool, Ohio, exchange of the Telephone Company. On the calls, the connection with the receiving ends was made by the operator at East Liverpool, through circuits connecting with Weirton and Wheeling.

The pertinent portions of § 1084, which was enacted September 13, 1961, are as follows:

"(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate * * * commerce of * * * information assisting in the placing of bets or wagers on any sporting event * * *, shall be fined not more than $10,000 or imprisoned not more than two years, or both."

The defendants contend that the congressional intent expressed in the statute was not to make criminal the use of an interstate wire transmission facility to carry messages emanating from a point in West Virginia to receiving points, also in West Virginia, no matter how many other States the electrical impulses, carried by the wires, traversed.

Parimutuel betting at licensed race tracks, of which Waterford Park is one, is legal in West Virginia; off-track betting is not. The statute, as far as is known, has not yet been construed. The "purpose" of the statute is succinctly stated in Report No. 588 of the Senate Judiciary Committee of the 87th Congress, on July 24, 1961, as "* * * to assist the several States in the enforcement of their laws pertaining to gambling and to aid in the suppression of organized gambling activities by restricting the use of wire communication facilities." Both in oral argument and on brief, defendants' counsel have stated that "unquestionably Congress has the power to regulate all traffic in interstate commerce, and in recent years has shown little hesitancy to exercise such power. Thus, defendants concede that Congress could, if it wished, enact legislation sufficiently broad to cover the facts of the instant case. The question is whether § 1084 is so designed." The problem then is that often encountered but still esoteric one of "discovering" the congressional intent.

Counsel have endeavored to be helpful by drawing analogies between the question presented by § 1084 and other Acts of Congress in cases both criminal and civil, where transportation, travel or transmission between two points in the same State crossed, enroute, the borders of another State, including the following:

(1) The provisions of Title 18 § 1951, in which, in sub-section (b) (3), the Hobbs Act defines commerce, for the purposes of the anti-racketeering objectives of the Act, to include "all commerce between points within the same State through any place outside such State * * *."

(2) United States v. Winkler, W.D. Tex.1924, 299 F. 832 (interstate transportation of stolen vehicle).

(3) United States v. Erie R. Co., N.J. 1909, 166 F. 352 (penalties of the Safety Appliance Act).

(4) Western Union Telegraph Co. v. Speight, 254 U.S. 17, 41 S.Ct. 11, 65 L.Ed. 104 (telegram from point to point in the same State, passing through another). To the same effect a long list of decisions of State courts under The Communications Act (Title 47 U.S.C.A.) are cited, beginning with Western Union Telegraph Co. v. Mahone, 1917, 120 Va. 422, 91 S.E. 157.¹

(5) Cornell Steamboat Co. v. United States, 1944, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978 (water transportation between points in a single State, passing through territorial waters of another).

(6) Yohn v. United States, 2 Cir., 1922, 280 F. 511 (theft from interstate railroad shipment).

(7) Michael v. United States, 7 Cir., 1925, 7 F.2d 865 (rail shipment).

(8) United States v. Delaware Lackawanna R. Co., S.D.N.Y.1907, 152 F. 269 (rebates on rail shipments).

Although § 1084 does not attempt federal preemption of the crime of gambling, some analogies can be drawn from the following cases which deny State jurisdiction where the State lines have been crossed: Roundtree v. Terrell, N.D.Tex. 1938, 22 F.Supp. 297; Central Greyhound Lines v. Mealey, 1948, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633; Missouri Pacific R. R. Co. v. Stroud, 1925, 267 U.S. 404, 45 S.Ct. 243, 69 L.Ed. 683.

As against the above cases, defense counsel have cited United States v. Wilson, D.C.Tenn.1920, 266 F. 712. This case involved a Mann Act charge in which the transportation was from Nashville to another point in Tennessee, on a train which passed through a portion of the State of Alabama. The District Court sustained a motion to dismiss the indictment, pointing out that the Act defined interstate commerce by the words "shall `include...