ERLENBAUGH v. UNITED STATES

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Argument of Charles W. Grubb

Chief Justice Warren E. Burger: We'll hear arguments next in 71-839, Erlenbaugh against the United States.

Mr. Grubb, you may proceed whenever you are ready now.

Mr. Charles W. Grubb: Mr. Chief Justice, may it please the Court.

I am here under rather ominous position today, faithfully speaking in that when the Travel Act, Section 1952 of Title 18 of United States Code was passed in 1961, I was a special agent of the Federal Bureau of Investigation assigned to Lake County, Indiana, and I had prepared that time the first summary report to be used for the prosecution of people like I am representing today.

This Act is the Travel Act, Section 1952 of Title 18 of the United States Code.

Now the question before this Court today is whether the Seventh Circuit erred in not following the case of U.S. versus Arnold, which was cited in the briefs, treated in the briefs.

In that case they had treated also Section 1953, which was a companion Section of Section 1952, which is the Travel Act.

The Court of Appeals, Seventh Court of Appeals, stated and rejected Arnold on the ground that there was lack of precedent and also that there was a lack of reasoning in the case.

Well, this was actually a case of first impression for all practical purposes and, thus, there was a lack of precedent for it.

But I believe that the study of the legislating history, study of the Acts themselves, and the study of the cases cited by the government and the cases which I shall cite, support Arnold and give reasoning, Arnold was first.

There is no doubt about it, it was the first opinion, but nevertheless I think that we have a proper reason that can be found in these cases and also in the statutes.

Now petitioners were convicted under Section 1952, the Travel Act.

They were horse race bookies and they use what is known as the Illinois Sports News, I don’t believe if we got this in the record pointed out, but this was the Illinois Sports News.

It’s a newspaper published in Chicago, Illinois and is used by bookies, because it contains horse race betting information and predictions.

This paper was sent to the petitioners who all reside in Lake County, Indiana and so that -- some of them were my informers when I was in the FBI.

These persons used this, this paper was sent from Chicago, Illinois to Hammond, Indiana and it was consigned to what was known as the Hammond News Agency.

These petitioners according to the record went to the Railroad Station and picked up the copies of it dropping, leaving their money there and took the copies and they did use it in their horse racing operations.

The Illinois Sport News has been held to be a newspaper and exempt under Section 1953 of Title 18, which is the companion section, and it was so held by the Seventh Circuit which treated this case previously and that was in Kelly versus Illinois Bell Telephone Company, that's a 1963 case.

I am giving the citation because there were two Kelly cases that I have in the briefs, 325 F. 2nd. 148 and it was held in a general way by the Seventh Circuit, to be a newspaper and exempt from the operation of Section 1953.

Now, Congress had a right -- had a reason to exempt newspapers from Section 1953 and that's to protect the right for free press.

But in passing 1953, it permitted the interstate transportation of a paper carrying with it information, carrying with it gambling information, betting information.

This information could be used for only one purpose, none but or so a nothing else.

It's worth for anything for anything else except gambling, it’s a betting paper, but Congress permitted this to be passed and they knew it couldn’t be passed and in doing so they knew it, it would be transported for one purpose and that is to use for gambling purpose.

This is not going to be used to paper walls, it's not going to be use line bureau drawers.

It's strictly a gambling paper and government made that quite plain in the various trials that we had.

Now, the cases cited by the government in opposition can be distinguished from the cases before the Court, and also from Arnold, in fact, I think they help to explain Arnold. U.S. versus Miller which is cited in the brief, that's a 1967 case out of Seventh Circuit, once all this began.

The defendants there subscribed to Western Union Service, the defendants had a ticker, they paid for it, they have it in their gambling joint wherever it was in Lake County, Indiana and they used the information from that.

They caused, they did not cause the interstate commerce or cause the use of an interstate facility.

They used it, they actually used it, and the case before the Court that these petitioners did not subscribe to any paper, they did not order any paper.

They did not cause any direct use of interstate commerce.

The next case is U.S. versus Azar, which is a 1964 case, it’s a District Court case in Michigan.

There we had another paper much like the Illinois Sport News, it’s called the Green Sheet and the Green Sheet was published in Ohio.

The two defendants in Azar traveled from Detroit, Michigan to Ohio where the paper is published, and there they gave information, which was used in the paper, actually used in the paper, and then the paper was sent across states lines back into Michigan and there the defendants as consignees picked up the paper, they -- the paper was sent to them.

They used interstate commerce, they caused its use by being consignees and they also traveled across the state line to add, to give information for publication.

It was direct travel in interstate commerce, we did not have it in the case at bar.

The next case was U.S. versus Ross, a 1967 case and it was in the Sixth Circuit.

The defendant was a subscriber to what is known as the Angel-Kaplan Sports Publications.

Now this is similar to the Illinois Sport News I assume.

Now this was shipped in interstate commerce to the defendant in Tennessee.

The defendant admitted in this case that he was a subscriber, he was a subscriber to this paper.

It was sent to him directly and he in effect caused the use of interstate commerce which was not true of the defendants -- petitioners in our case.

And the last case with the government cited was US versus Mendonez (ph) a 1968 case out of the Circuit Court of -- out of Fifth Circuit Court of the Appeals.

The defendants in Florida used the telephone to New York to get the total liabilities of the 12 Federal Reserve Banks and the 12 – the total was to be used that as the winning number in their lottery game here again.

They used a directly interstate commerce, an interstate facility which is not true of our defendants -- of our petitioners.

Now the Seventh Circuit, back to the Seventh Circuit in United States v. McCormick, a 1971 case 442 F2nd 316.

The Court spoke differently on the use of interstate facility then in the cases before this Court, spoke entirely differently and I want to bring these cases these two cases to the Court's attention.

The Court there -- the defendant McCormick, the man in Indianapolis, he advertised in the daily newspaper – in a weekly newspaper for salesmen to be used in his gambling scheme, in his lottery scheme and these salesman, this paper went across the states lines or sent through mails not only through mails but it was sent Indiana interstate commerce.

And the government urge that this was a sufficient use of interstate -- of an interstate facility.

The Seventh Circuit reverse this and said and I would like to read this, just the part of this decision.

The U.S. versus McCormick and they start out.

Chief Justice Warren E. Burger: I think we will let you do that right after lunch.

Mr. Charles W. Grubb: Oh!

Thank you, thank you.

[Luncheon Break]

Chief Justice Warren E. Burger: Mr. Grubb you may continue.

Mr. Charles W. Grubb: Thank you, Your Honor.

I was about to read from U.S. versus McCormick, that is a case of in all the Seventh Circuit Court and I am reading here from McCormick.

In Rewis versus US 401 U.S and I will give the correct citation, they did not have it here, it is 28 LED 2nd 493, the Supreme Court reverse the conviction of a gambler whose lottery operation was frequented by our state letters.

Construing this same Section, the Court emphasized the intent of Congress to strike at the truly interstate operations of organized crime.

The Court refused to give broad ranging application to the statute, particularly since Congress gave no indication that it wished to alter the sensitive Federal state relationships, over extend limited Federal police resources or produce situations in which the geographic origins of customers a matters of happen stats would transform relatively minor state offenses into Federal felonies.

Similarly and I still reading from McCormick, similarly in U.S. versus Altobella, 442 F 2nd 310 also in the Seventh Circuit.

This Court struck down the conviction of two extortioners under the section 1952 where Jurisdiction was claimed on the basis that the victims' check was cleared by mail between Chicago and Philadelphia stated, “When both use of the interstate facility and the subsequent act is as minimal and incidental as in this case, we do not believe a Federal crime has been committed.”

The Court then reversed and added in McCormick, “defendant neither used nor caused to be used and the interstate facility as an instrumental part of his illegal operations.

We must therefore conclude that no Federal prime was committed and that the state of Indiana is the only appropriate authority to punish the defendant for maintaining this local lottery.

Justice Potter Stewart: Mr. Grubb?

Mr. Charles W. Grubb: Yes sir.

Justice Potter Stewart: Do I understand that that's the opinion you are just been reading from is in a case not referred to in either one of the briefs?

Mr. Charles W. Grubb: No --

Justice Potter Stewart: Okay now the citation --

Mr. Charles W. Grubb: Yes.

The McCormick is – the Rewis, I mean, Altobella is in 442 F2nd 310 and McCormick is a 1971 case it is also in 442 F2nd 316.

Justice Potter Stewart: Thank you.

Mr. Charles W. Grubb: Now in McCormick the Seventh Circuit --

Chief Justice Warren E. Burger: Well the boundary of the case of the gambling house near the state line is one out of this Court last term where the term before, isn't it?

Mr. Charles W. Grubb: Rewis.

Chief Justice Warren E. Burger: Yes.

Mr. Charles W. Grubb: Yes Rewis, I am going to go --

Chief Justice Warren E. Burger: That is in 401 US, the reference that you told --

Mr. Charles W. Grubb: Yes it is in 401 that is right, I did not have the U.S. Citation I have the Supreme Court citation, the Supreme Court Reporter and LED.

Now in McCormick the Seventh Circuit that held transportation of in newspaper information is not a sufficient use of interstate facility to sustain a conviction, Also in Altobella, cited in McCormick, the Court held at the clearance of a check through the mail in interstate commerce is insufficient, is an insufficient use of an interstate facility although the Courts have held for years that under section 2314 which is the interstate Transportation of Stolen Property Act, under section 2314 of title 18 that a clearance of a check does give jurisdiction, but Altobella said no.

It is difficult for me to reconcile these case with the case at bar and also with Arnold, the reasoning that the Court did give and these cases were cited before the Seventh Circuit when I argued it there.

Now, although the court in Arnold did not exhaustively explain its opinion.

It seems to me that the cases which is cited by the government, in the legislative history here and the cases cited by the petitioner of all give some reasoning to Arnold and I think that Arnold in all its simplicity should be followed, but back to Rewis.

This Court made it plain that the Travel Act is to be applied to truly interstate operations of organized crime and the Seventh Circuit so read that in the Rewis decision when it handed down the McCormick decision.

Now the court in Rewis, I'll only read one short excerpt in Rewis.

Justice Byron R. White: What's that (Inaudible)

Mr. Charles W. Grubb: Yes Rewis it is a -- I have the Supreme Court Reporter citation here.

It is a 401, it is -- this is what was stated in Rewis, “legislative history of the act was limited but does review that 1952 was aimed primarily and organized crime and more specifically at persons who reside in one state while operating or managing illegal activities located in another.

In addition, we are struck by what Congress did not say, and Court further said in Rewis that matters of happen stance should not transform relatively minor state offenses into Federal felonies.

In conclusion I like to state that here there was no organized crime ever met, no evidence of any organized crime.

These petitioners were all independent operators or they were employees of independent operators.

They never ordered nor subscribed to the Illinois Sport News.

They merely, they did not use the Chicago South Shore and South Bend railroad commonly known as South Shore railroad the did not used that railroad.

They picked up the papers there but they were consigned to the Hammond News Agency, just to same as many of us do in the morning to get our morning paper when the drug stores close and we got there and we want to get our paper for we got on the computer, train we pick out a newspaper out of bundle and leave our money for it and go on our way.

Chief Justice Warren E. Burger: I suppose it is reasonably assumed isn't it Mr. Grubb that Congress was well aware that there were highly specialized newspapers as you kept your eyes this bulletin that catered particularly to people who were betting and to organized gambling, isn't that, accurate?

Well, now then what if you to say about the fact that the Section 1953 specially excludes newspapers but are similar publications presumably reach this publication, but that section 1952 does not have any such exception?

Mr. Charles W. Grubb: That is right.

Chief Justice Warren E. Burger: What do you have to say about it?

Mr. Charles W. Grubb: That is right and I think that these -- Section 1953, be the latest in the statute should control, I believe does control that the two seconds must be construed impaired material and I cited the what I think is a leading case on that and I believe that altered them Section 1952 to the extent it was not to be -- that it was a exempt for use.

Thank you.

Chief Justice Warren E. Burger: Mr. Tuttle.

Argument of Allan A. Tuttle

Mr. Allan A. Tuttle: Mr. Chief Justice and may it please the court.

The 11 petitioners here were convicted on five separate indictments after five separate Jury trials of using and causing the use of and interstate facility, in this case the Chicago South Shore and South Bend Railroad to promote and facilitate the operation of an illegal gambling operation in Hammond, Indiana.

I had thought that the question which this Court had addressed itself to when it granted certiorari was the question of whether since Section 1953 contains a specific exclusion for newspapers, are we to assume that Congress intended to exclude from the scope of the Act an individual who had scratch sheets sent to him through the facilities of interstate commerce and thereafter use the scratch sheets to promote his unlawful activity.

As Mr. Grubb has argued the case he seems to me to I have argued a difference case and one on which this Court did not grant certiorari.

One on which jury resolved against these defendants and one which the Court Appeals resolved against these defendants and one which no petition for certiorari was filed.

Mr. Grub contains -- maintains excuse me that these petitioners did not cause the use of an interstate facility.

The Jury was instructed on this question and the Jury returned a verdict finding that these petitioners had in fact caused the use of this railroad.

The Court of Appeals made the same finding.

Indeed it seems to me that Mr. Grubb has conceded the main question in this case, when he says the case is like Ross and Azar are to be distinguished.

Ross was distinguished by Mr. Grubb just now on the ground that Ross had subscribed to a paper in Chicago and thereby had in fact caused the interstate shipment, but if the question is whether the shipment of these papers through the channels of commerce is a subject of the Travel Act, then in conceding that Ross was properly decided, in my view that concedes the main question in this case.

I might say the same as true of Azar.

In Azar for instance, again, it was an interstate shipment of scratch sheets of the kind that we have in this case, and in Azar, in fact one of the two defendants didn't travel in interstate commerce, one did, the other remained in Detroit and picked up the packages when they reached their destination consigned to a Mr. Williams in Detroit.

Now I will address myself to what I consider to be the question which this Court -- upon which this Court granted certiorari which is the question of the scope of the Travel Act and whether the transportation or causing the transportation of the sheets through the facilities of Interstate Commerce could violate the Travel Act and in the course of stating the facts of the case, I may shed some line on the question which Mr. Grubb has raised, but which I can see or which I contend is not before this Court.

The petitioners were owners and operators five separate horse race betting parlors in Hammond, Indiana, each of which was and was conceded to be operated in violation of the laws of Indiana.

Now in connection with the operation of these horse race betting parlors, petitioners used a publication known as the Illinois Sports News.

Mr. Grubb has showed the Court a copy of the Illinois Sports News.

The sports news is known as the scratch sheet, a scratch as the Court may know, is a horse that has been withdrawn from a race in which it was previously entered and the withdrawal is not reflected perhaps on the afternoon, previous afternoon's racing forms.

Therefore, the scratch sheet is of considerable value because it's published at 8 AM in the morning, distributed promptly and can be used by betters in placing their wagers on that day's races.

Indeed the testimony in this case shows that the scratch sheet was vital to these operations.

One convicted co-conspirator who testified for the government, testified that on days when the scratch sheet failed to arrive, business fell off by as much as 80 %.

There is also evidence that the entire shipment by the month to the Hammond New Agency dropped off drastically after the race in this case.

Justice William H. Rehnquist: Mr. Tuttle, I don't suppose this is really bears on the statute, but is that all the kind of information a scratch sheet contains, is just what horses have been scratched?

Mr. Allan A. Tuttle: Oh!

I am sorry, Your Honor, it contains more than that.

It contains for instance the day's entries, it contains the jockeys and their weights, it contains the track handicapper's predictions and sometimes predictions of the publishers themselves.

Justice William H. Rehnquist: But the reason it's called the scratch sheet is because it has the scratch information?

Mr. Allan A. Tuttle: That's right, but that's only one aspect of the information which is contained.

It is the information which makes a scratch sheet different from other kinds of horse race betting publications and makes it important that it will be published early in the morning and gotten out and distributed very quickly.

Justice Thurgood Marshall: Mr. Tuttle assume I don't know anything about it, doesn't also include the morning line?

Mr. Allan A. Tuttle: That would be called the morning line, the handicapper's odds and the other information that I have spoken and the rapidity with which this is distributed or must be distributed is reflected in the facts of this case.

These petitioners and their co-conspirators by prearrangement with the local news agency, the Hammond News Agency, arranged to pick up their copies of the Illinois Sports News at approximately 9:02 in the morning when the 8:30 train from the Randolph Street Station in Chicago, Illinois arrived with these scratch sheets on it.

The petitioners would then take their scratch sheets and distribute them to their various horse race betting parlors.

Now there are many copies that arrived everyday consigned to the Hammond News Agency.

Approximately 57 were picked up and used by the co-conspirators in this – in these five separate cases.

Mr Goodman (ph) whom I have mentioned testified for the Government picked up 22 copies a day to use in his gambling operations.

He paid for them weekly to the Hammond News Agency, a Mr. Frost (ph) of the Hammond News Agency.

Another 35 copies --

Chief Justice Warren E. Burger: Are you emphasizing that he paid for them?

Does that mean that it's quite an expensive item?

Mr. Allan A. Tuttle: As a matter of fact, they are, Your Honor.

At the time of the trial, they were $00.35 a piece.

Now much of the same information is -- can be obtained from other papers, but this is this which contains no information except racing information is more expensive because of its rapidity of distribution and fact that you can get it early, you can place your bets early.

But my point of indicating the arrangement for payment was in a way to allude indirectly the question of causation because in this case there was an arrangement to receive 22 copies a day and to pay for them on a weekly basis to the Hammond News Agency which was the consignee of these papers from Chicago.

The other 35 which were picked by the co-conspirators were picked up at 9 o'clock in the morning and they left envelops of cash at the train station.

Later on in the morning in the ordinary course of business, employees of the Hammond News Agency would come, pick up the remaining 33 copies and distribute them to various retail outlets around the Hammond area and they would hit the news stance around 11 -- 10:30 or 11, much later of course than these petitioners had it and had it for use in their betting parlors.

Now as I have suggested the question is whether the exclusion of these papers from 1953 entails a similar exclusion from 1952.

The statute in this case, the Travel Act, provides and I will read if the Court will indulge me, the relevant part of the statute.

The statute provides whoever uses any facility in interstate commerce would be intent and then in subparagraph 3, to promote, manage, carry on, establish, or facilitate the promotion, management, or establishment, or carrying on, of any unlawful activity, and thereafter performs any act, specified in subparagraph 3 which I have just read you, violates the Travel Act.

And then the statute defines an unlawful act and significantly it defines it as a business activity, a business enterprise involving gambling, gambling offenses in violation of the laws of the State in which they were committed.

Now the Congressional hearings reflect a concern that otherwise lawful or innocent interstate travel was being used to facilitate illegal gambling and I stress illegal gambling.

As you know the Travel Act prescribes interstate travel with a purpose to promote other violations of State Law such as narcotics violations, liquor violations, prostitution violations, extortion, arson, extortion and bribery and that has been amended to include arson and controlled substances.

But at the time of the hearings, when Attorney General Kennedy testified on behalf of this legislation, the stress was on gambling and the fact that $20,000,000,00 a year changed hands in gambling and gambling was a prime source of funds for the underworld.

Indeed his examples all involved gambling.

He spoke for example of moving the proceeds of an illegal gambling operation in one state to another state or he spoke for example of the interstate and nationwide travel of layoff men, which indicated gambling operations.

Now if Congress was concerned with otherwise lawful travel which might be the subject of promoting an unlawful or illegal activity and violation of state law, Congress was equally careful not to make innocent interstate travel the subject of criminal sanctions, and it was senator Erwin (ph) who stressed this and senator Erwin stated that he would hate to see the time come when this country would make it a crime to travel, having certain thoughts, as he conceived that this act could make it a crime simply that you would be thinking something while you are traveling interstate.

And in reaction to senator Erwin's concern, the judiciary committee amended the law and they added a second proviso, they provided as in the overt act requirement in conspiracy cases, they provided the act of the interstate travel, the individual do something which promotes the unlawful activity, thereby assuring that the statute would involve any kind of thought control or punish somebody merely for their thoughts.

Now the statute was also limited to be sure not to apply to the individual gambler who might be traveling interstate.

Even if he traveled interstate with the intent to engage in illegal gambling and thereafter in fact engaged in illegal gambling, the statute wouldn't cover such activity as Attorney General Kennedy stressed when he testified in support of this legislation that the target was organized crime and the statute had been drafted to cover only what was called travel in furtherance of “business enterprises” so that no casual or sporadic involvement in gambling activities would be covered, but only such regular and continuous conduct as might be classified as a business enterprise.

In this way, travel in interstate commerce even with an unlawful purpose in mind is not covered unless it is followed by some kind of overt act after the travel which promotes the unlawful activity, and of course the same language makes it equally clear or doubly plain that innocent interstate travel could never be the subject of any sanction under this law.

Now of course there is nothing novel about Congress making interstate travel for an unlawful purpose, the subject of a criminal sanction and criminal responsibility.

It is after all no crime to travel interstate with a woman, but in fact travelers for the purposes of prostitution, the Mann Act is violated.

Similarly, it is no crime to travel interstate with a child, but if the child is held for ransom and reward, the Limbard (ph) Law is violated.

The mails are available to anyone, but if the mails are used in furtherance of a scheme to the fraud, the Mail Fraud Statute is violated.

By the same token, anyone can use the telephone, make a long distance telephone call, or anyone can equally send a telegram interstate, but if these facilities are used to further an unlawful activity, then the legitimate objects for Congressional concern and Congressional regulation, and as this Court knows, a classic violation of the Travel Act is the use of the interstate wires to convey betting information, wagers or rational results.

Now just this gambling information can be sent interstate to gamblers over the wires, so the morning line in the Illinois Sports News can be sent interstate to promote illegal gambling operations and this fact no more inhibits the lawful movement of the Illinois Sports News, then the Mann Act or the Limbard Law inhibits the interstate travel of woman or children.

Now in our view, Section 1953 achieves its result of avoiding criminal responsibility for innocent conduct by an entirely different route.

Section 1953 defines a class of contraband, the interstate shipment of which is banned irrespective of the purpose for which it is sent or the motive for which it is sent or the use to which it is put, after it is sent.

Section 1953 defines gambling paraphernalia in very broad language, including any slip, token, paper, writing, or other device designed or adapted for use in book making or wagering on sports activities or numbers operation.

It was this broad language which the senator Keating (ph) in the hearings on the bill to express concerning that you or I or anyone else might commit a crime under the 1953 provision by traveling from here to New York carrying a copy of the Post because it might happen to contain the results of a sporting activity or the results of a horse race.

And it was in response to this concern that Congress amended the statute to say “this Section shall not apply the carriage or transportation in interstate commerce of any newspaper or similar publication, and we concede for the purposes of this argument in any event that the scratch sheet would qualify under that subsection.

It seems to us that what 1952 achieves by limiting its coverage in terms of the intent of the activity and the overt acts which are required after the activity, 1953 achieves by a simple definitional exclusion.

Now Congress recognized that otherwise innocent travel or movement in interstate commerce could in fact be the subject of criminal responsibility, whether the requisite intend was present and where they were overt acts in furtherance of the unlawful activity following that interstate travel or movement.

We see no reason to assume that Congress intended that one particular kind of innocent act, in this case, the transportation by rail of newspapers should be excluded from the subject of criminal responsibility if and only if the requisite purpose is there and overt act is there following the interstate movement or the causing of the interstate movement.

Chief Justice Warren E. Burger: If this material which is in this sheet, racing sheet that you have got was a special column on the sports page of a conventional newspaper and was transported in the ordinary course of sending thousands of them to Philadelphia or Richmond or somewhere else.

Would that standing alone violate the statute?

Mr. Allan A. Tuttle: Oh!

Standing alone, it does nothing at all.

One would have to hypothesize circumstances under which it was used.

I mean to ship alone doesn't violate the act in any regard.

One has to hypothesize the subsequent use --

Chief Justice Warren E. Burger: So it has to be connected that with some other activity?

Mr. Allan A. Tuttle: Well, again it depends -- the act requires that it be shipped with a given purpose to promote an unlawful activity and requires also that act of the shipment is used to promote the unlawful activity.

Chief Justice Warren E. Burger: Well, if these are the same gentleman have, then purchase to 'x' a hundred of them and sent them by a special courier and delivered them to people in furtherance of this, then that would violate this statute in your --

Mr. Allan A. Tuttle: No question about it, in our view, assuming of course, that they were then used in furtherance of the unlawful activity.

We do not -- assuming as we do for the purposes of argument that this is a lawful publication, we would argue that the statute could, in principal be violated by the use of any publication if it were used with the requisite intent and if it were caused to be shipped in interstate commerce and if it were thereafter used to promote an unlawful activity.

Now we believe that the evidence in this case show that these petitioners in fact caused the interstate shipment of the Illinois Sports News.

Now I have recited to you the way in which it was obtained, the way in which it was distributed, the way in which it was picked up, and the way in which it was used.

We therefore believe that these individuals caused the interstate shipment of these newspapers with the intent to promote their unlawful gambling operations, that they thereafter used these newspapers in violation of Indiana law to promote their unlawful gambling operations.

And we therefore believe that they were guilty as charged in the indictment and as the jury found, and we further believe that the convictions should be affirmed.

Chief Justice Warren E. Burger: Thank you, Mr. Tuttle.

I think your time is consumed, Mr. Grubb.

The case is submitted.

Rebuttal of Charles W. Grubb

Mr. Charles W. Grubb: I have no further, Your Honor.