Cases by Issue - Gambling

Iannelli v. United States - Oral Argument

Thu, 23 Aug 2012 18:27:08 +0000

Case:

Iannelli v. United States

Media File:

73-64_19741217-argument.mp3

Related Transcript:

73-64_19741217-argument

Transcript:

Argument of James E. Mclaughlin

Chief Justice Warren E. Burger: We'll hear arguments next in 73-64, Iannelli against the United States.

Mr. James E. McLaughlin, I think you may safely proceed now.

Mr. James E. Mclaughlin: Mr. Chief Justice, and may it please the Court.

This case involves the issue of whether the petitioners here were properly indicted for and convicted of conspiracy to violate 18 U.S.C. 1955 when they were also indicted for and convicted for the substantive violation of 18 U.S.C.1955.

The eight petitioners here were indicted in a multiple count indictment with a number of other un-indicted co-conspirators and charged among other things.

First, with conspiring to violate Section 1955 and then charged with a substantive violation of 1955.

The petitioner Iannelli was also indicted for alleged violations of 18 U.S.C. 1302 and 1341.

All of the petitioners here were convicted of both the substantive violation of 1955 and of conspiracy.

All were sentenced on both counts and in this case is before the Court here, each of the defendants, aside from Mr. Iannelli was given an additional two years probation on the conspiracy conviction.

Now, simply stated question before the Court is whether the application of Wharton's Rule in this case bars the dual conviction and dual sentencing of these petitioners.

Wharton's Rule is not at all a new rule. However of course, it was -- when it was initially applied some 125 years ago, 130 years ago, it was mostly applied in cases involving dueling and crimes of adultery, that sort of thing.

Now, dueling is not a very popular --

Chief Justice Warren E. Burger: It wasn't a very wide ranging rule --

Mr. James E. Mclaughlin: No, no your honor, it was not.

Dueling has somewhat fallen out of fashion and adultery is seldom prosecuted these days, so it really hasn't -- hasn't been applied as often with perhaps the two of them, but I don't think Professor Wharton ever really contemplated the Congressional scheme that Congress had in mind in Section 1955.

I think he would've -- have felt that his rule would have applied.

But as you point out, Mr. Chief Justice, it was not a widely applied rule but it was a sound rule and we contended, it is a sound rule, and the gist of the rule is simply that when an offense requires concerted action or plurality of agents that Wharton speaks of it, then the crime of conspiracy cannot be added to the substantive crime.

Now in 1955, the statute clearly states that in order to vile a convicted, five or more persons must act in concert, own, conduct, finance, manage an illegal gambling business.

The conspiracy statute of course, requires that two or more persons agree to do an illegal act.

Both statutes speak in terms of minimums, not maximums.

Now, Wharton's Rule has never been directly applied by this Court but it has been adverted to in Gebardi v. United States which we cite in our brief, and of course it has been adverted to in a number of Circuit Court cases.

Now, in the application of Wharton's Rule in 1955, the circuits are not in agreement.

They're in conflict and I assume that this is one of the fundamental reasons why we're here.

The Solicitor General did not oppose our petition for certiorari.

The Seventh Circuit in United States v. Hunter has held that Wharton's Rule clearly applies.

The Second Circuit, which was the first circuit to consider the problem, has held that it did not.

The Third Circuit followed the Second, and the Fourth and the Fifth sort of went off on their own but also following the Second.

Now, we feel that the reasoning in Hunter is in fact the proper reasoning because they state there that there is no element or an early ingredient in the conspiracy which is not present in the completed crime, and we think that's what Wharton's Rule was all about.

It requires a minimum of five or more persons to own, conduct, finance or manage an illegal gambling enterprise to constitute the substantive violation of 1955. Now, we contend that when those five persons own, conduct, manage or finance an illegal gambling enterprise, they are in effect agreeing to do so and conspiring to do so.

Now, the government takes the position and it in part is proper that if the substantive crime can be successfully maintained by a single individual, then Wharton's Rule in effect has no application.

And in aide of that proposition, the government cites a hypothetical situation at page 28 of its brief in which it indicates that it would be possible for a single person to be convicted of the substantive violation of 1955 and the situation where a single bookmaker hires ten high school students who are deluded into thinking that they're involved in a market research product and do not realize that they're in the bookmaking operation.

Well unfortunately, I don't represent ten high school students, and ten high school students weren't involved in the case that brings us here.

That hypothetical situation as Professor Wright points out in our reply brief might be very interesting in a law school classroom, but this is a real case and this kind of cases involve real people.

Justice William H. Rehnquist: But then, the rule you're contending for Mr. McLaughlin would be a fact, a case-by-case application rather than a flat rule one way or the other?

Mr. James E. Mclaughlin: Yes, I think so, Mr. Justice Rehnquist.

I think perhaps it would have to be that way but I'm simply trying to point out that the hypothetical posed by the government, is just so hypothetical that it has no basis in reality at all.

Justice William H. Rehnquist: Well, I took the government's point to be that if they could demonstrate some instances in which Wharton's Rule wouldn't apply in the administration of the statute, then it shouldn't apply at all.

Mr. James E. Mclaughlin: Well, I think that's the position they take but the position we take is that they would have to demonstrate some practical, possible hypothetical -- in point of actual practice, any bookmaker who employed ten high school students in an aide or in an effort to operate a gambling business probably wouldn't even be mentally competent to stay on trial.

Chief Justice Warren E. Burger: Now, if you convert that into some dangerous drugs, you might have a more commercially feasible illustration, might you not?

Mr. James E. Mclaughlin: Yes, well now, traditionally now, for instance in the drug cases, Wharton's Rule does not apply because a single person can clearly be involved in the sale of drugs or transfer of drugs.

But here, the statute specifically requires a minimum of five.

Now, we just said the hypothetical posed by the government is just so unreal that it's not demonstration an instance where a single person could do it, and the actual, practical fact of the matter is that a single person can't do it and there has never been a single case brought under 1955 and there have been many, many cases brought under 1955 where a single person was charged with a substantive offense.

Throughout the government's argument, and this of course is a two-fold argument, one, we contend that Wharton's Rule in fact does apply and it applies in two ways in this case.

One, it bars dual punishment and two, it in fact requires a new trial in this case.

Now, throughout the government's argument, there is almost implicit in their argument and in their brief, a tacit admission that probably there is something wrong about the concept of dual punishment in this area, and they keep saying, “Well, if Wharton's Rule applies, then of course it only bars dual punishment.”

And I think the government senses, as certainly we do, that there is something definitely offensive about the concept of dual punishment in this area.

I think perhaps even more graphically --

Justice Potter Stewart: Well, I gather that the differences with maybe our constitutional source.

I don't see that -- you haven't suggested that Wharton's Rule has a constitutional source.

The government seems to feel it does.

Mr. James E. Mclaughlin: Now, I haven's suggested that, no.

I --

Justice Potter Stewart: A double jeopardy source.

Mr. James E. Mclaughlin: It verges on that.(Voice Overlap)

Justice Potter Stewart: You don't argue with that?

Mr. James E. Mclaughlin: No.

I don't think I have -- I don't think I have to go that far.

Justice Potter Stewart: Well, you were asking us to apply Wharton's Rule just as a matter of supervisory value or ?

Mr. James E. Mclaughlin: Well yes, and as a matter of -- there is a conflict in the circuits and the Solicitor General recognizes this conflict and recognizes in his memorandum in response to our petition that the problem is a recurring one and is of considerable importance.

And it is of great importance because even more graphically than in our case, the problem of dual punishment is demonstrated in the case of Grosso v. United States at 73-1412 which petition is here in this Court and is being held pending the action of the Court in this case, and I happen to be counsel in that case, too.

And in that case, the defendants were given the maximum sentences -- the one defendant was given a maximum sentence, consecutive sentences for the conspiracy and the substantive trial, so that there -- so that in that petition, it's very graphically demonstrated, you can end up with ten years instead of five.

Mr. James E. Mclaughlin: Now, as I say, I think the government almost concedes that there is something offensive about this idea of dual punishment but they take the position of course that there is no, in this case, no trial should be required because the Court can simply just straighten everything out by straightening out the concept of the punishment.

Justice Potter Stewart: Is it your contention, Mr. McLaughlin, that charges of conspiracy and of the substantive offense cannot be brought or that the jury must be instructed that they cannot find guilt of both even if they are brought?

Mr. James E. Mclaughlin: That is not our position that they cannot be brought because in this particular case in Iannelli, there were two other substantive offenses charged and the conspiracy related to those as well.

So it would have been clearly improper for the District Court even though we asked him to do so and perhaps we improperly asked him to do so that he was not that easily misled.

He refused to do so prior to trial because he said it was untimely.

It's our position that if the conspiracy of Wharton's Rule applies and conspiracy is not a punishable offense, then it should not be submitted to the jury if that's all there is, that is the conspiracy and the 1955.

Justice William J. Brennan: Now, I'm not sure I follow.

You do concede, as I understand your answer now.

Tell me if I'm wrong that a person or necessarily two or more persons can be charged with conspiracy as well as with the commission of the substantive offense at the same trial.

But that the jury must be instructed that they cannot find them guilty of both, is that it?

Mr. James E. Mclaughlin: I don't think the jury should be instructed on conspiracy at all.

I think at the point when the government rests and the case is ready for charge.

If the Court has determined that the plaintiffs were not entitled to a direct verdict, he should not submit that the conspiracy to the jury at all, he should just submit the substantive offense.

Justice Potter Stewart: You could have, of course, just to conspiracy case in the case where the gambling operation was never in fact set up.

Mr. James E. Mclaughlin: That's --

Justice Potter Stewart: You can have a conspiracy plus an overt act and --

Mr. James E. Mclaughlin: That's possible.

Justice Potter Stewart: But frustration of the object of the conspiracy would always (Voice Overlap) and that you could have guilty -- have people guilty of conspiracy.

Mr. James E. Mclaughlin: That's right, but the Court can make that determination at that time I think and he doesn't have to submit it.

What we're objecting to and the reason we think that we're entitled another trial is that if you can't meet out dual punishment for the conspiracy, then why is the jury permitted to consider that you may have committed two crimes when in fact, only one is punishable.

Now, it's giving the government two targets when they should only have one.

Justice Potter Stewart: Well, I still don't know that I understand your answer to my question.

Maybe my question isn't clear.

But as I understand your answer, you do not contend that the prosecutions cannot charge these people with both the conspiracy and with the substantive offense.

Mr. James E. Mclaughlin: That's correct.

Justice Potter Stewart: You concede that.

Mr. James E. Mclaughlin: That's correct, Mr. Chief.

Justice Potter Stewart: Alright, then let's assume that the proof at the trial shows that there was a conspiracy and that there was a commission of the substantive offense by five or more because five or more people were engaged in it.

I don't mean there's evidence in rebuttal of that, so there's enough to go to the jury.

Now, does the trial judge have any duty in your submission to instruct the jury that they may not find the defendants guilty of both?

Mr. James E. Mclaughlin: Yes, that's at a minimum.

Justice Potter Stewart: Well, what is your --

Mr. James E. Mclaughlin: Frankly, if he has determined that there is sufficient evidence --

Justice Potter Stewart: Of both.

Mr. James E. Mclaughlin: Of both, then I do not think that he should submit both to the jury.

Justice Potter Stewart: Which one must he eliminate?

Mr. James E. Mclaughlin: I would think that he would submit the substantive offense because it carries the more vigorous penalty.

Justice Potter Stewart: That's not a very defendant minded answer.

Mr. James E. Mclaughlin: No, it's not but I think that that's probably a more palatable choice for the District Court because I think that they probably would feel that the more serious charge would be the one that should be submitted.

Justice Potter Stewart: The conspiracy is a pretty serious charge.

Generally because, it has often been considered to be more serious than the substantive offense.

Mr. James E. Mclaughlin: Right.

Justice Potter Stewart: This Court has often said so..

Mr. James E. Mclaughlin: But in terms of penalty, Congress has elected to make the substantive offense of the more serious crime.

Justice Potter Stewart: Well then, would you answer my question.

It's the duty of the trial judge and his instructions to the jury assuming people charged with both conspiracy and with the substantive offense assume sufficient evidence of both to go to the jury.

Now, what is the trial Court's or trial judge's duty under your submission under the Wharton Rule as to his instructions to the jury?

Or is it his duty to dismiss at the end of the prosecution (Voice Overlap)one or both of the charges?

Mr. James E. Mclaughlin: We feel that --

Justice Potter Stewart: There is always one.

Mr. James E. Mclaughlin: To dismiss the conspiracy.

Justice Potter Stewart: Why?

Mr. James E. Mclaughlin: Because the conspiracy is an integral part of the substantive offense.

Without the conspiracy, the substantive offense requires a conspiracy.

Justice Potter Stewart: Yes, but the conspiracy doesn't always result in the substantive offense and the jury might or might not reject the incriminating evidence with respect to the substantive offense.

It might hold if both went to the jury that there was a conspiracy but that there was not a substantive offense, and shouldn't the jury be afraid as to so hold?(Voice Overlap)

Would both therefore go to the jury?

Mr. James E. Mclaughlin: Well, then perhaps maybe they should, Mr. Justice Stewart.

But at that point, then the Court should clearly instruct the jury that they can't find them both.

On this case of course, the jury was instructed just the opposite.

Justice Potter Stewart: And I didn't know if that was your position or if it was your position that in the event that there were a finding of guilt as to both, then it became incumbent upon the District Judge to do something about it.

Mr. James E. Mclaughlin: No, as a matter, I think that's totally the wrong approach to it, what you portray (Voice Overlap).

Justice Potter Stewart: Well, what is your --

Mr. James E. Mclaughlin: I think he has to cure the matter by his charge, the minimum, before it goes to the jury but not wait until (Voice Overlap)

Justice Potter Stewart: And say what -- (Voice Overlap) by his charge.

Mr. James E. Mclaughlin: That they may not find and the defendant's guilty of both offenses.

If you're going to give them the election where you're going to submit both the conspiracy and the substantive offense, I think he should charge then that if they find the defendants guilty of the substantive offense, they should not consider the conspiracy or should find them not guilty of the conspiracy.

Justice Potter Stewart: And the instruction should be that way rather that you can't find them guilty of both.

You'd have to say if you find them guilty of the substantive offense, then you must what, find him not guilty of the conspiracy --

Mr. James E. Mclaughlin: Not guilty --

Justice Potter Stewart: Or not consider --

Mr. James E. Mclaughlin: Or not consider it.

Really, it would be foolish to have them consider it only to find them not guilty.

I think it's not considered at all.

Justice Potter Stewart: And only in with the instruction be only if you find him not guilty of the substantive offense are you permitted to consider the conspiracy charge?

Would that be the instruction in your submission?

Mr. James E. Mclaughlin: Yes, yes Mr. Justice Stewart, I believe it would.

I believe it would.

But if I had my brothers advice the district (Voice Overlap) --

Justice Potter Stewart: Well, I want to know what your submission is here, that's all.

Mr. James E. Mclaughlin: Well, what you said is correct.

You understand it and we understand each other.

Chief Justice Warren E. Burger: Okay.

On your thesis, ten men -- or then men and women -- could not engage in a conspiracy and have it developed that only five of them were participants in this substantive offense.

The two you said are all bound together.

You can't separate them.

Mr. James E. Mclaughlin: Well -- yes, they are bound together.

I can't really conceive of a practical situation.

I can't conceive of any practical situation where the question you posed would occur in a gambling scenario.

Chief Justice Warren E. Burger: And then what you're saying is that there can't be any offensive conspiracy to commit the offense?

Mr. James E. Mclaughlin: Really, that's what I'm --

Chief Justice Warren E. Burger: You must consummate it in order to have any criminal act.

Mr. James E. Mclaughlin: That's right, because the statute requires that the five or more people actually be in operation.

In other words, they can't be prosecuted unless they have gotten the thing off the ground.

The statute doesn't speak in terms of theoretical gambling operations.

It speaks of actual ones that have attained a certain plateau of economics of success and have operated for 30 days or more.

So that the conspiracy is complete when you have enough to the lay the substantive charge.

You see, under the government's theory, they sort of think that these people sort of drift in to these things.

Gambling enterprises don't operate by drafting employees.

They only have voluntary enlistments and the people that enlist in these operations understand what they're doing.

They aren't high school kids who think they're doing market research because this situation wouldn't even be prosecuted because they'd never be successful enough.

In the actual, real world of bookmaking, this conspiracy would be consummative when the substantive offense is consummated.

So actually what I'm saying is that the conspiracy really doesn't -- it's such an integral part of the substantive offense; it really doesn't exist.

And what I'm also saying is of course that in view of this substantive statute and in view of the fact that it requires every ingredient of a conspiracy, then we feel that Congress and the Court should not count this dual punishment.

We don't think that these petitioners should be punished twice for the same crime, and we feel that here they have been punished twice for the same crime.

Now, I would like --

Chief Justice Warren E. Burger: In your submission in response to Mr. Justice Stewart, do I understand you correctly to say that if both offenses are submitted to the jury, the jury can take its choice but they must -- they're mutually exclusive.

Mr. James E. Mclaughlin: They're mutually exclusive.

As I said that certainly as a minimum, I would feel that the District Court would have to tell the jury that they may not find the defendant guilty of both (Voice Overlap) substantive offense.

Then they must disregard -- not regard the conspiracy at all.

Justice Potter Stewart: However that they're not necessarily mutually exclusive, that there could be a conspiracy without any evidence at all of the element commission of the substantive offense.

Mr. James E. Mclaughlin: That's a hypothetical possibility, Mr. Justice.

Justice Potter Stewart: Only hypothetical.

There may be no reported cases but it certainly not an Alice in Wonderland idea that people can plan to set up a gambling operation and then by reasons of death or illness or competition or various other reasons, it can be frustrating --

Mr. James E. Mclaughlin: I would --

Justice Potter Stewart: There would be a conspiracy without a substantive offense.

Mr. James E. Mclaughlin: I would certainly concede that it is possible.

The five persons could agree and say, “Let's start a gambling business” and make one phone call to another fellow and say, “Let's do something.”

And that really is a conspiracy.

Chief Justice Warren E. Burger: If I follow you, that's a different answer from the one you gave me at the moment --

Mr. James E. Mclaughlin: But I don't think it's -- I don't think it's a probable situation and in the instance where you have the substantive offense and the Court is satisfied that there is sufficient evidence to submit the substantive offense to the jury, then clearly there is a conspiracy, too, because the substantive offense requires one.

If in Mr. Justice Stewart's hypothesis there could be, as it could be a conspiracy without the substantive offense, the District Court shouldn't submit the question of the substantive offense to the jury because it's probably so clear that there's no evidence to support it that they shouldn't be permitted to consider it anyway.

Chief Justice Warren E. Burger: You're analogizing this in a sense of having a jury find a man guilty of a given crime and a lesser included defense under the same statute.

Mr. James E. Mclaughlin: It's somewhat similar, yes, Your Honor.

I think I have a few minutes left, I'll save it.

Chief Justice Warren E. Burger: Very well.

Mr. Evans?

Argument of Mark L. Evans

Mr. Mark L. Evans: Mr. Chief Justice, and may it please the Court.

The government has four contentions in this case.

First, Wharton's Rule has no application at all to Section 1955.

Second, even if it does have application, this case comes within a standard exception to Wharton's Rule because there were more persons involved in the conspiracy in this case than the minimum number required to commit the substantive offense.

Justice Potter Stewart: Does that mean that if you had a case where there were exactly five people who conspired and who were -- who then carried out their conspiracy by conducting a gambling operation then Wharton's Rule would be applicable?

Mr. Mark L. Evans: Well in our contention --

Justice Potter Stewart: I mean just with respect to your point two?

Mr. Mark L. Evans: As to point two, that's right.

Third, when Wharton's Rule does apply, its effect is solely to prohibit double punishment for the conspiracy in the substantive offense.

It does not bar an indictment either alone or together with the substantive offense and it does not bar submitting both counts to the jury under proper instructions along the lines Mr. Justice Stewart was discussing with Mr. McLaughlin earlier.

Finally, even if Wharton's Rule applies to this case and does bar an indictment, petitioners still would not be entitled in this case to a new trial as Mr. McLaughlin suggested at point as an alternative disposition.

There would be no need for a new trial, all that would be necessary would be to vacate the sentences that were imposed on the conspiracy convictions.

And I'd like to start, if I may just by briefly addressing that final point because it can be taken with the assumption that everything that Mr. McLaughlin has said about Wharton's Rule's application to Section 1955 and to this case is true.

Now, he has suggested in his brief and he had alluded to it again at argument that a new trial would be necessary here apparently because the presence of the conspiracy character in the course of the trial and in the jury's deliberations has so tainted the jury's verdict on the substantive count that there must be a new trial to eliminate this taint.

As we understand the argument, if it rests upon the notion that in the absence of the conspiracy count, all the hearsay declarations that were admitted at this trial would have been excluded and they would not be admissible on a retrial only on the substantive account -- only on the substantive count.

We think this is wrong for several reasons.

First, as we show on our brief, the admissibility of hearsay declarations of co-conspirators does not depend upon the presence of an indictment -- of a conspiracy count in the indictment.

It depends only upon a showing by non-hearsay evidence that there was in fact a joint venture in crime of which the defendant was a member.

Justice Potter Stewart: This argument leads you right into Mr. McLaughlin's case, isn't it?

You're saying that they're the same.

Mr. Mark L. Evans: No, no, we're not saying they're the same.

We're saying that -- well, I'm not sure --

Justice Potter Stewart: You're saying that the substantive offense is basically the same because they support the same exceptions to the hearsay rule.

Mr. Mark L. Evans: Well, we're -- in a sense, if Wharton's Rule apply, and I'm here taking everything that he has said is given, if Wharton's Rule applies yes, there is inherent in the substantive offense the very conspiracy to which he objects that in terms of a subsequent -- in terms of separate counts --

Justice Potter Stewart: I see, you're beginning this argument by --

Mr. Mark L. Evans: I'm just beginning by accepting everything just to discuss only what should be done with this case if everything were accepted.

Justice Potter Stewart: I see.

Mr. Mark L. Evans: Now, even if for some reason the hearsay testimony would be inadmissible if there were only the substantive count at trial that the District Judge here contrary to the suggestion that Mr. McLaughlin's brief makes specifically instructed the jury that they could consider that hearsay testimony, those hearsay declarations only in connection with the conspiracy count on page 61 of the appendix.

He made a very elaborate effort to direct the jury's attention to the conspiracy count only last and he stated that, “This is why I start off with the other counts and work toward the first count.”

That evidence, the hearsay evidence would not be admissible in proving guilt under the second count, the Section 1955 count, but it could be admissible under the circumstances I just enumerated with you in proving the guilt of conspiracy.

So even if for some reason the hearsay declarations could not be admitted, should not have been admitted in this trial, there's no reason to believe that the jury disregarded the explicit instruction disregarded with respect to the substantive count.

Our contention in essence is that there's been no taint attached to the substantive conviction, in this case, no reason to remand for a new trial on that count in any event.

The heart of this case is the question whether Wharton's Rule applies at all in the context of Section 1955, and before I address the statutory question, I think it would be helpful to outline our theory of Wharton's Rule.

We start with two principles, consistent principles we believe.

First, that a conspiracy ordinarily is separate and distinct from its substantive aim because each requires proof of a fact that the other does not.

For example, a conspiracy to commit a bank robbery requires proof of an agreement between the two robbers to commit the crime, but it does not require proof that robbery was actually consummated.

On the other hand, the substantive charge of bank robbery requires proof that the crime was consummated but not that there was any agreement to commit it.

And this Court has accordingly held in many cases that cumulative sentences may be imposed upon convictions for both the conspiracy and its substantive aim.

And that is so because a conspiracy is thought to pose dangers beyond those posed by the commission of the substantive offense itself.

An unlikened attempt for that reason, the conspiracy does not merge within the completed substantive offense.

Now, the second principle as I say that's consistent with this is basically an application of the Constitutional Protection against Double Jeopardy.

When one offense is necessarily included within another, a person may not be given cumulative sentences for a single act that violates both.

For example, assaulting a federal officer is necessarily included within the greater prime of assaulting a federal officer with the use of a deadly weapon.

It is impossible under any circumstances to commit the greater offense without also committing the lesser.

Justice William H. Rehnquist: What authority are you relying onto that proposition, that the double jeopardy forbids that?

Mr. Mark L. Evans: Well, inferring it from decisions of this Court, most particularly North Carolina against Pierce, in which the Court stated that -- and there may be others, too, that --

Justice Byron R. White: You seem to be making this trial as being straightforward application of the double jeopardy clause, but such that conviction of the greater offense by (Inaudible).

Mr. Mark L. Evans: That's right.

Oh, you're -- no.

Well, I'll cite some cases to support --

Justice Potter Stewart: Mr. Evans yes.

Mr. Mark L. Evans: Yes.

Well, there are several in the footnote there.

Now, in our --

Justice Byron R. White: Do you feel --

Mr. Mark L. Evans: We're looking for a constitutional source.

Unknown Speaker: (Inaudible) but do you put out in your brief the (Inaudible) double jeopardy.

Mr. Mark L. Evans: That's right, that's right.

It rests in our view upon --

Unknown Speaker: (Inaudible) for that, if you think you've seen (Inaudible) double jeopardy clause.

Mr. Mark L. Evans: This we think is the source of Wharton's Rule properly understood.

It's not broader, I mean in a sense we're -- we're giving it a constitutional footing so that it's scope can be appreciated.

Justice William H. Rehnquist: Did the Wharton think that when he evolved it?

Mr. Mark L. Evans: Well no, Wharton -- Wharton did not.

Wharton's Rule in my view is an anomaly.

It developed as we explained in our brief from what we view as a misreading of an 1850 Pennsylvania State Court decision.

There's no comparable rule in England, and the leading British commentator as I indicate in the brief thinks that the rule is unnecessarily subtle.

Well, we thought about it a great deal and we concluded that it has an application as part of the broader rules that we think would be applicable in the case of a lesser included offense and the greater offense.

We do think that the double jeopardy clause would bar an imposition of two punishments for assaulting a federal officer for example with a deadly weapon, and for the crime that necessarily was included within it, mainly the assault upon the officer.

Justice Byron R. White: Well, how about the adverse punishment for assault on a federal officer and punishment for assault with a deadly weapon?

And the former necessarily include the latter.

Would you say conviction for the included offense would bar prosecution for the greater?

Mr. Mark L. Evans: Well, we think that's -- it's --

Justice Byron R. White: Now, you say that --

Mr. Mark L. Evans: Yes, it's not obviously this case.

We're not -- this has no application to it.

We mentioned that only in passing.

Justice Byron R. White: You should draw that the case because assume the -- assume there's a conviction of conspiracy and then there's like the substantive offense.

The rule was the conviction for the included offense includes the section for a greater offense.

Mr. Mark L. Evans: Well, Mr. Justice White, I believe that we're inferring that rule from a combination of the cases we've cited but Waller is basically the case, as I recall it that was a conviction on a local ordinance that was as the Court stated that the offense was included within the --

Justice Byron R. White: Not really --

Chief Justice Warren E. Burger: Yeah, that's --

Mr. Mark L. Evans: Well, no --

Justice Byron R. White: This whole question of --

Justice Potter Stewart: Well, how about Blackledge against Perry last term?

Mr. Mark L. Evans: I'm not familiar with it.

Justice Potter Stewart: Well, that's pretty much on the --

Mr. Mark L. Evans: But in any event, I really don't think we have to struggle with this issue.

It's not really presented here.

We only mention it in passing to suggest the contours of what would be the rules with respect to lesser included offenses and greater offenses.

Chief Justice Warren E. Burger: Well of course, your friend was saying that this is analogous.

This case is analogous to a lesser included offense situation.

I take it you'd want to accept that.

Mr. Mark L. Evans: No, we do not --

Chief Justice Warren E. Burger: You seem to becoming a little close to the edges of it there.

Mr. Mark L. Evans: Well, I was outlining Mr. Chief Justice what our view is of the proper application of Wharton's Rule.

We think it applies only where it can be stated that the conspiracy is a lesser included offense of the substantive crime so that one could not possibly in any circumstances commit the substantive crime without also conspiring to do so, and the example that we used in the brief and we think is the clearest example is the case of dueling, which is defined in terms of an armed combat between two persons pursuant to an agreement to do so.

Now, in order to commit a duel under that definition, you must agree to do so. You must in effect commit each of the elements of a conspiracy.

Now in that context, we have no question that this is the appropriate case in which to apply this general -- whatever the general double jeopardy rules may be with respect to a lesser included offenses in greater offenses.

When we come to Section 1955 however, this is not -- this is anywhere anything like dueling.

I think looking at 1955 in recalling the central question, I think that our theory of Wharton's Rule is whether it would be possible under any circumstances to commit the substantive crime of conducting an illegal gambling business without also conspiring to do so.

Now, the statute defines illegal gambling business as one that involves five or more persons who conduct it but it does not state and it does not imply in our view that all five must be knowing and willful participants.

The purpose of the five-person requirement like that of the other requirements in the definition was to limit the allocation of federal resources to the large gambling operations.

The requirement is one of size, not one of culpability.

This is confirmed we think by the form that was used by Congress in drafting the statute, which is set out at page 2 of our brief.

As --

Justice Mr. Justice Blackman: I suppose the purpose of that was to get some federal mixes, wasn't it, some effect on interstate commerce?

Mr. Mark L. Evans: Mr. Justice Blackman, the Congress found that gambling generally has an impact upon interstate commerce.

It specifically stated however that it declined to prohibit, although it thought it was within its reach to do so.

It declined to prohibit all gambling operations because it wished to limit federal resources to the major operations of major proportions.

I don't think this is an essential link for a federal jurisdiction but it is the one Congress picked for policy purposes.

Chief Justice Warren E. Burger: Was it part of the policy theory that they were going to leave the small operations to the states?

Mr. Mark L. Evans: That's exactly right, Mr. Chief Justice.

Now -- but in doing so, the Congress specifically recognized in its legislative reports that while it normally assumed that more than five persons would be involved in the kind of operations it had in mind that it recognized that it's very difficult to prove the full extent of most gambling operations.

And for that reason, it chose five as a number and again, I believe it chose the number in terms of the size of the operation.

It did not specify and there's no reason to believe it had in mind.

Chief Justice Warren E. Burger: It might just as easily have decided to cut the line at ten.

Mr. Mark L. Evans: It might just as easily have decided to cut it at ten.

I believe it was a legislative choice that this would be an appropriate limit to permit prosecutions of large gambling operations in which not everyone could be proved to be involved without having the federal Courts burdened by (Inaudible) prosecutions.

Justice Byron R. White: Let's see if I understand.

You had a set of two, you're suggesting there would be not attack on basic federal jurisdiction.

Mr. Mark L. Evans: Well, there may be an attack upon it.

I'm just pointing out that the Congress believed that the reach of its authority extended beyond the limits that was chosen in the statute.

We believe that Congress deliberately left open in the statute the possibility of prosecuting a sole bookmaker to use the hypothetical we used in our brief who hires innocent persons to help him operate his gambling business.

And it did so because it realized that it may be that there were other people involved, but guilty persons involved, people who are culpable but it's not always easy to prove their involvement.

It's enough to prove that there is one culpable individual operating a business large enough to merit federal attention.

Now, we think that this demonstrates or it answers the question I started with, that is, whether it is possible in any circumstance to commit the substantive offense without conspiring to do so.

The answer is it is possible.

It's a theoretical inquiry granted and there probably will never be such a case.

There may or there may not be such a case; I know of none.

But this is a question of what would be possible and we believe that in this circumstance in which one guilty culpable person hires enough persons to operate his business to bring it within federal -- scope of federal jurisdiction that he would be guilty of the substantive offense but he could not be convicted of a conspiracy because there would be no proof that he conspired with any other culpable person involved in the operation.

Now, one might properly ask I think in these circumstances whether Congress really intended that a person who violates Section 1955 should be subject to the additional punishment for a conspiracy, which probably would be connected with the large operation.

But we think that this Court's decision in Callanan is an answer to that question.

That was not a Wharton's Rule case but an analogous argument was made.

Callanan argued that Congress could not have intended to subject him to multiple punishment for conspiracy and obstructing commerce by extortion because both crimes were created by the same section of the statute.

The Court stated however that the historic distinctiveness between a conspiracy and its substantive aim gives rise to a presumption that Congress intended to maintain that distinction and to maintain the separate punitive consequences of each, and the Court stated in a sentence that I think is worth quoting that appears on page 42 of our brief, “To dislodge such conventional consequences in the outlawing of two disparate offenses, conspiracy and substantive conduct, and effectuate a reversal of the settled interpretation would require a specific language to the contrary.”

Well, there is no such specific language to the contrary in this statute and we believe that the presumption established by Callanan should be applied in this case as well.

Justice Potter Stewart: I just want to be sure I understood the arguments you're making a moment or two ago.

It's your submission is it that at least theoretically, a single individual could be guilty of violating section 1955.

Mr. Mark L. Evans: That's correct.

Justice Potter Stewart: Because he would be the only one with “mens rea” or with knowledge of what was going on --

Mr. Mark L. Evans: Correct.

Justice Potter Stewart: Is that it?

And he could -- he would hire four more, people who just didn't know what was going on upstairs, is that it?

Mr. Mark L. Evans: That's right.

Justice Thurgood Marshall: Is it a gambling operation?

Mr. Mark L. Evans: Well, we're not suggesting that this is likely.

We're just suggesting that the statute permits -- would permit a prosecution in those circumstances.

The Court of Appeals rested its decision in this case on a ground that this Court needn't consider unless it first finds contrary to our contention that Section 1955 does necessarily include a conspiracy.

That ground is that this case falls within the standard exception to the rule that permits prosecution for a conspiracy when it involves more persons than the minimum number essential to the commission of the substantive offense.

This exception has been recognized even by this Court in the Gebardi case and it's now accepted by the current addition of Wharton's Treaties.

We think it's consistent with the rationale of the rule itself.

Separate punishment in our view is precluded by Wharton's Rule on the theory that Congress took into account in establishing the punishment for the substantive offense all the dangers inherent in the commission of the substantive offense, including the dangers involved and any necessarily included conspiracy.

But when the conspiracy exceeds in number, the minimum number necessary to the commission of the substantive crime, its dangers are likely to be increased also.

And there is no reason in these circumstances to presume that Congress intended to limit the punishment where the conspiracy is greater than -- or creates dangers greater than those inherent in the substantive crime itself.

Chief Justice Warren E. Burger: Let me suggest a hypothetical to you to pursue Mr. Justice Stewart's proposition that you might have four innocent and one guilty, would this situation do it if you had a mountain resort up the borders of Nevada and four people were hired and told that it was in Nevada and that it was perfectly legal to be running the gambling operation, being professional gamblers from Las Vegas or some place.

But the one man who was running the show knows that it is in whatever is an adjacent state which makes it illegal.

What would be the situation then?

Mr. Mark L. Evans: Well, that might be a situation --

Chief Justice Warren E. Burger: Well, it's pretty strange -- it's pretty strange example.

Mr. Mark L. Evans: I think Mr. Chief Justice that while only the one who knows would be guilty of the substantive crime that he might well be guilty of the conspiracy as well because while the four --

Chief Justice Warren E. Burger: Not if he deceived --

Mr. Mark L. Evans: Well I guess it may -- it may fit.

I'm not sure.

It may be the same thing.

Any example you hypothesize is bound to be an unlikely one because this is not the normal situation.

But what matters is that even in those hypothetical situations, it seems to me clear, seems to us clear that the statute would permit prosecution of the one individual and we believe that there are circumstances, and this may be another one in which there would be no prosecution for conspiracy.

Chief Justice Warren E. Burger: Of the four, you mean?

Mr. Mark L. Evans: Of any.

Now, on my hypothetical at least and perhaps on yours, too, Mr. Chief Justice, in order to be convicted of conspiracy, there must be at least two persons --

Chief Justice Warren E. Burger: Under the Mens rea are all the parties --

Mr. Mark L. Evans: Well there has to be at least two persons who share in the guilty knowledge.

Now, to the extent that the four here do not share in the guilty knowledge, I would say that their agreement with him was not a meeting of the minds sufficient to constitute the kind of agreement that's punishable as a conspiracy.

To conclude, I think it's worth recalling Mr. Justice Holmes' statement that was quoted in this Court's decision in Callanan.

He said, “To rest upon a formula is a slumber that prolonged means death.”

Well, we think that for many years, Wharton's Rule has been applied by the course uncritically and we urge the Court in this case to reconsider the formula and to apply it, if at all only consistent with its proper rationale.

Chief Justice Warren E. Burger: We'll resume there at one o'clock.

Mr. Mark L. Evans: Mr. Chief Justice, I didn't quite get at my conclusion and during lunch, it occurred to me that it might be worth clarifying some points that were raised during the pre-lunch point.

Mr. Justice White, to address further the question that we were discussing earlier about double jeopardy, we don't mean to suggest that it is beyond the power of Congress or a legislature to prescribe that although a crime includes another that both should be punished separately.

We think this is within the power of Congress.

We think however that once it is determined that Congress did not intend separate punishment.

In other words, as nothing was said about it at all, we believe the presumption should be that a single punishment is what was intended and we believe that the decisions of this Court make it clear that in those circumstances, it would be improper to --

Justice Byron R. White: (Inaudible)

Mr. Mark L. Evans: Now, whether they could -- it would depend upon the will on Congress, whether --

Justice Byron R. White: Let us say that the will of Congress was clear and you could punish for both the included offense and the greater offense.

Mr. Mark L. Evans: Well, in that --

Justice Byron R. White: In the same prosecution, you may charge and convict and punish for both.

Mr. Mark L. Evans: I think that that would be constitutionally permissible.

Justice Byron R. White: You think it would?

Mr. Mark L. Evans: Yes.

And I think it's the functional equivalent of Congress saying -- let's just take a concrete example.

Take the assault on a federal officer.

The statute as I remember it says that it's three years for assaulting a federal officer, it's ten years for assaulting a federal officer with the use of a deadly weapon.

Now, if Congress were to say these punishments that the ten years for assaulting a federal officer with a deadly weapon shall be in addition to the three years that would be otherwise imposed for simply assaulting a federal officer, I think that's constitutionally permissible.

It's the same thing as if Congress said three years for assaulting a federal officer, 13 years for assaulting a federal officer with a deadly weapon.

Chief Justice Warren E. Burger: What about murder and manslaughter?

Mr. Mark L. Evans: Well --

Chief Justice Warren E. Burger: You wouldn't suggest that they could punish for both in one crime --

Mr. Mark L. Evans: Well, I think Congress could or a legislature could, but it would be the same thing as saying -- I mean it would just be an awkward way for the legislature to have imposed simply a higher punishment for the greater crime by saying that you can cumulate the greater and the lesser.

It's just another way of saying the greater shall be --

Chief Justice Warren E. Burger: Do you have to go that far in this case?

Mr. Mark L. Evans: No, it's not really -- but I just want to clarify some --

Justice Byron R. White: Well, let's see if I get it clarified some of the things you may have said in the brief.

Mr. Mark L. Evans: Well, I think our brief states Mr. Justice White, that -- I'm reading from page 21 and 22 of our brief that we say that this aspect of the double jeopardy protection is of course subject to the legislative will because the severity and allocation of punishment for criminal conduct are peculiarly questions of legislative policy.

And we cite --

Justice William J. Brennan: But suppose what you have as indeed some states do, felony murders.

You may not try the murder and the felony, robbery let's say, in the course in which a death occurs together.

And the state tries for murder, felony murder, proves the facts of the robbery, the deaths in the course of the robbery gets conviction, imposes a mandatory life sentence, let us say, for the murder.

After that, they try him for the robbery.

Can you do that?

Mr. Mark L. Evans: I didn't --

Justice William J. Brennan: And robbery carries 15 years.

Mr. Mark L. Evans: I believe it would depend upon an understanding of what the intention of legislature was.

If it were -- if the legislature intended --

Justice William J. Brennan: Well, the legislature said in so many words, you can't try these two offenses together.

They have to be tried separately.

And in the case of the felony murder, the sentence shall be mandatorily life.

In the case of the robbery, this will be 15 years.

They try and convict him for the felony murder, he gets that mandatory sentence of life.

Mr. Mark L. Evans: Well --

Justice William J. Brennan: May he now be charged for the robbery?

Mr. Mark L. Evans: I can't answer it because I don't know what policy lies behind the proscription of a joint trial in the two.

And if the proscription is --

Justice William J. Brennan: But they have such proscriptions.

Mr. Mark L. Evans: Well --

Justice William J. Brennan: I don't know why they have them.

They have them.

Mr. Mark L. Evans: Well I haven't thought about this question, Mr. Justice Brennan.

Justice William J. Brennan: Do you think double jeopardy wise, that can be done?

Mr. Mark L. Evans: I really haven't thought about it.

I think it would depend on analysis of the legislature.

Justice William J. Brennan: Nielson is a case that you cite in your footnote.

Mr. Mark L. Evans: Well, Nielson was not that.

Justice William J. Brennan: Nielson was cohabitation, conviction, and later prosecutions for adultery, conviction, and this Court set it aside.

Mr. Mark L. Evans: Well --

Justice William J. Brennan: That wasn't included defense --

Mr. Mark L. Evans: In Nielson, it was a conviction of a greater offense and then it was an attempt to prosecuting unless -- what I'm suggesting is that it's within the power of the legislature to provide --

Justice William J. Brennan: But the legislature in that instance and Nielson did that.

Mr. Mark L. Evans: Well, the legislature --

Justice William J. Brennan: The Utah legislature did precisely that.

They tried him first with cohabitation, which was a federal statute.

He was convicted.

And then he was tried for the adultery, which was also a federal statute, and he was convicted and this Court set the --

Mr. Mark L. Evans: Well, what I'm suggesting that there was nothing in Nielson as I recall Nielson that indicated that there was an expressed determination by the legislature that both crimes should be punished and punished separately, that one who commits both should be punished for both separately.

What I'm suggesting is that in the absence of such a determination, that's right, that I would think that double jeopardy probably does prohibit it.

But --

Justice William J. Brennan: If this Court held, as I understand Justice Brandeis opinion.

I never saw the case, that was cited.

If I understand his opinion at page 191, that's double jeopardy.

And what can the legislature do in the face of the double jeopardy?

Mr. Mark L. Evans: Well, I believe that this aspect of the double jeopardy protection depends upon a threshold analysis of what it is that the legislature has determined.

Justice William J. Brennan: You mean the legislature in that instance, if it had said yes and we mean even if convicted, he may be tried the second time?

Mr. Mark L. Evans: Yes.

Justice William J. Brennan: It has said that many words, notwithstanding the double jeopardy clause, the adultery conviction --

Mr. Mark L. Evans: That's correct.

I believe that's correct.

Justice William J. Brennan: What authority did you get (Voice Overlap) --

Mr. Mark L. Evans: Well, there has never been a case that I can point to, as a matter of fact, the issue may be raised in a peripheral way and the case that's pending.

But that's my view of what the double jeopardy clause -- how it works in the context of double punishment for the same acts that violate two provisions.

It may be different where you're talking about success of prosecutions, but this is my understanding of how it works in this context.

Chief Justice Warren E. Burger: And here we're talking about a case I thought of planning it and doing it.

Mr. Mark L. Evans: That's right.

Chief Justice Warren E. Burger: Congress has said that there are two separate trials.

Mr. Mark L. Evans: That's our position, right.

So in our view, this issue doesn't even come up in the case.

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

You have about three minutes left, Mr. McLaughlin.

Rebuttal of James E. Mclaughlin

Mr. James E. Mclaughlin: I would address myself solely to one point, and that's the point of proper relief.

The government at page 14 of its brief has conceded that if Wharton's Rule applies, and we of course contend that it does, that the proper procedure would have been to instruct the jury to consider the conspiracy count only if they have found the defendants not guilty of the substantive offense.

The government further concedes at page 14 of its brief that this procedure, proper procedure was not followed in this case.

Where we depart from the government is then what is the proper relief for the petitioners here, and we submit that we are entitled to the relief that Mr. Justice Stewart found required in the case of Milanovich v. United States, which unfortunately we did not cite in our brief --

Justice Potter Stewart: That was the receiving stolen property and the conviction for both and for larceny.

Mr. James E. Mclaughlin: That's correct, Your Honor.

That's for the 365 US 557, and that remedy is a new trial.

In closing, we submit that Professor Francis Wharton was buried 85 years ago, I trust that his rule will not be perished in this term.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Featured:

United States v. Fabrizio - Oral Argument

Thu, 23 Aug 2012 18:14:25 +0000

Case:

United States v. Fabrizio

Media File:

47_19661107-argument.mp3

Related Transcript:

47_19661107-argument

Transcript:

Argument of Marshall

Chief Justice Earl Warren: Number 47, United States appellant versus Anthony L. Fabrizio.

Mr. Solicitor General.

Mr. Marshall: Mr. Chief Justice may it please the Court.

I move admission of Mr. Jerome Chapman of the District of Columbia Bar specially to argue this case.

Chief Justice Earl Warren: He may be admitted for that purpose.

Mr. Chapman.

Argument of Jerome I. Chapman

Mr. Jerome I. Chapman: Mr. Chief Justice, may it please the Court.

This is a direct appeal from the dismissal of an indictment by the District Court.

That court decision was bases upon its interpretation of the statute upon which the indictment was founded that is 18 U.S. Code Section 1953 and the only question before this Court on direct appeal is the interpretation of that statute.

So far as it is relevant here, Section 1953 prohibits anyone except the common carrier in the usual course of this business form knowingly transporting in interstate commerce "any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing or other device used or to be used or adapted device or design for used in wagering pools with respect to a sporting event."

The indictment which the lower court dismissed closely parallel to statutory language, it alleges that on or about August 24 1964, Anthony L. Fabrizio, the appellee, knowingly carried in interstate commerce from Keene, New Hampshire to Elmira, New York "records, papers writings, to wit: 75 acknowledgments of purchase for a sweepstakes race of the State of New Hampshire, to be used, and adapted, devised and designed for use, in a wagering pool with respect to a sporting event," that is: a sweepstakes race of the State of New Hampshire.

The indictment was filed in the Western District of New York in September 1964.

In October 1964, appellee filed a motion to dismiss the indictment accompanied by an affidavit of his former counsel setting forth appellee's interpretation of the statute of Section 1953.

The Government filed a memorandum in opposition to the motion to dismiss and the motion was submitted on the papers without oral argument.

On October 5, 1965 the District Court dismissed the indictment stating only the following reason "the charge in the indictment does not come within the purpose of Section 1953 as disclosed in the legislative history of the Act, the court did not further elaborate the position."

Under the limiting provisions of the Criminal Appeals Act under which this direct appeal is brought the sufficiency of the indictment as a pleading is not before this Court and neither is the question whether the Government can adduce sufficient proof to establish its factual allegations.

Stated concretely the only question involved here is the following, does an indictment alleging the knowing interstate carriage of acknowledgements of purchase to be used an adapted device and designed for use in the New Hampshire sweepstakes state a crime under Section 1953?

Justice John M. Harlan: Is this a state lottery?

Mr. Jerome I. Chapman: It is.

I'm printing that now Mr. Justice.

So I would like at the outset to briefly sketch the mechanics of the New Hampshire sweepstakes operation and to touch upon the function therein of the acknowledgement of purchase which is the paper that appellee carried in interstate commerce.

After doing this I'll turn to the legal questions involved in the case.

The New Hampshire sweepstakes is operated by the New Hampshire Commission established by law.

It is by undoubted -- undeniably a legal operation within the State of New Hampshire.

New Hampshire sweepstakes tickets maybe purchased at the sweepstakes commission headquarters at 51 state liquor stores, two race tracks and two highway toll plazas within the State of New Hampshire.

The tickets are in the first instance contained in a specially designed ticket dispensing machine which is very much like the airline insurance policy dispensing machine that is quite common.

The sweepstakes ticket itself, now I have a copy of the ticket here which you may not all be able to see but the facsimile of the acknowledgement of purchase appears on the page nine in the record in it's a -- as I will point out the differences and similarities it may be easier to refer to that rather than to -- what I have in my hand.

In the machine when one first approaches the machine through an opening at the top the sweepstakes ticket appears in such a manner that one can write the required information on the face of the ticket.

Now immediately beneath that ticket in the machine is the acknowledgement of purchase which is essentially identical, I will point out in a moment the differences.

This is not visible to the purchaser, it's inside the machine underneath the ticket and it's put there so that one writing on the ticket will make a carbon copy and pressure it on the same lines on the acknowledgement.

The information asked on the ticket as the copy on page nine shows is the name, address, city and state.

When a person wants to buy a sweepstakes ticket at one of the various locations where the tickets are sold, he first goes to a clerk in the store or at the office or at the race track and pays three dollars per ticket.

Upon receiving the money the clerk activates this ticket dispensing machine for the sale of -- as many tickets as the person has paid for up to 10.

The most you can get one stretch is 10 tickets.

The purchaser then proceeds to the machine and writes on the face of the ticket itself a name, address, and a city and a state.

Doesn't have to be that persons own name and address in fact it doesn't have to be any persons' name and address.

It can be a club or a corporation or a school or an association or it can be more than one person, mister and misses so and so.

But the name and address that appears on the ticket and simultaneously is recorded on the carbon copy on the acknowledgement is crucial because the prizes on the sweepstakes are awarded on the basis of that name and that address.

The -- after the person has written the name and address on the ticket he pulls a lever.

At that point the ticket and the acknowledgement part company, the ticket is deposited inside the machine, the acknowledgment is ejected and for the -- for whatever purposes the purchaser wants to make of it.

At this point let me point out exactly where the acknowledgement and the sweepstakes ticket itself differ.

They are in fact identical with one exception where the tickets has printed somewhat slightly above the top of the top half of the page in large print New Hampshire sweepstakes ticket.

The acknowledgement and this is shown better in the record on page 9 contains a legend which says that this is not a ticket, this is an acknowledgement, you don't have to present this to win a prize, it says as an essence.

Chief Justice Earl Warren: If I don't have to present that, what do they have to present to get the prize?

Mr. Jerome I. Chapman: Well, I'm about to describe that actually --

Chief Justice Earl Warren: It's all right.

Mr. Jerome I. Chapman: They have -- they don't have to present anything.

Let me make one further point about this acknowledgement with reference to the facsimile in the record just to make it perfectly clear.

This facsimile in the record is approximately the -- is almost exactly the actual size, there's a slight variation.

In the record there are some parts of the printing comes -- come out very prominently, very heavy.

Other parts come out very light.

Well, actually what that represent is different colors.

The part that comes out very heavy here is really just red typed, the part that comes out light is blue typed so that in the actual acknowledgement this phrase that this is only an acknowledgement, it need not be presented while its quite clear does not come out, thus not stand out as prominently as it -- as one would expect looking only at the way the facsimile is recorded in the record.

Justice William J. Brennan: Mr. Chapman, I don't suppose it's too important to have -- to tell them there's no name and number of the street on it?

Mr. Jerome I. Chapman: Well, this was crossed out -- blank out for purposes of printing the record.

There is no reason to place in the record the name of the person --

Justice William J. Brennan: I gather this is the actual or facsimile, the actual certificate that was brought, (Inaudible)?

Mr. Jerome I. Chapman: This was attached to the motion to dismiss the indictment by appellee and I assume although I'm not certain in it, appellee's counsel may clear this up and I assumed that this was one of the acknowledgments that he -- one of the 75 acknowledgement he actually carried.

So just to preserve the identity of the individual involved and since he was not relevant they blanked that out.

Justice William J. Brennan: Blanked it all.

Mr. Jerome I. Chapman: Blanked that out.

But on all acknowledgements of course there would be a name and address and then the city and the state.

Now this is what happens and this is directed to your question Mr. Chief Justice, after the lever is pulled the ticket is deposited within the machine and the acknowledgement is ejected outside the machine.

Let me direct myself now only to the ticket, we'll leave acknowledgement to one side but the ticket is the thing that counts as far as winning the price is concern.

The tickets are deposited in the machine and are collected by sweepstakes commission agents periodically.

When they are collected from the machines they are taken directly to bank deposit vaults in various parts of the state and ultimately are gathered together in one bank vault in Manchester, New Hampshire.

Process of selling tickets in the sweepstakes goes over a relatively long period of time.

There where two sweepstakes races run this year.

For the first one, the ticket selling period covered about an 11 month period.

But for the second one, it was about a six month period.

So all this tickets over time are collected and put into the bank vault.

Finally, very shortly before the sweepstake race is run, the sweepstakes race is one of the factors in determining who wins what prizes.

Very shortly before this time the tickets are placed in drums or barrels from which they are to be drawn.

Shortly before the race, a certain number of tickets are drawn.

Now the number varies somewhat depending on how much money has been put into the pool, how much money has been bet by the various purchasers.

But for simplicities sake and I think this will serve our purposes, its fair to say that there is one ticket drawn for each horse nominated in the sweepstake race.

In other words there may be 300 horses nominated or eligible for a running in the particular race that's involved.

If that's so, 300 tickets will be drawn and each ticket will be matched with one of the eligible horses.

Everyone whose ticket is thus drawn is entitled to some price simply because his ticket is drawn.

This year, in the 1966 sweepstakes those people whose tickets were drawn in the first instance and didn't get any further prices shared in a pool of $60,000.

Now after the 300 tickets are drawn, the day of the race comes and of course 300 tickets -- 300 horses don't run on the race only a certain number of them, lets say for example 20, actually finally do get entered into the race and are off when the race is called.

Well, the persons whose tickets are matched with these 20 horses qualify for a higher price.

This year those persons shared in a pool of $20,000 there.

Roughly their price was something like five or six times more than the people who were matched with horses that never ran.

Finally of course, there are the top three prizes which are determined on the basis of the horses that run first, second and third in the race.

If my ticket was matched with the horse that ran first, this year I would've won $50,000.

If I had a ticket matched with the second horse, I would've won $25,000.

If I had a ticket matched with the third horse, I would've won $12,500.

This is the way the winners are picked.

Now the winner is determined by the name and address that appears on the actual ticket that has been deposited in the machine, later transfer to the safety deposit vaults, later transferred to the drums all within the custody of the State of New Hampshire, all within the custody of the sweepstakes commission.

The winners are notified in the first instance by telegram whatever name and address the telegram is sent to.

After it is determined how much each of these people win depending on whether the horse run at all and if so how it ran.

Whatever the price money is, it's deposited in a New Hampshire bank, in Manchester I believe to the credit of whoever's name and address or whatever group's name and address appears on the ticket itself.

Then payment is made through normal banking channels.

Now if I live in New Hampshire or if I want to travel up to New Hampshire, if I live in some other state but I wanted to go up to New Hampshire to collect my prize they would write at the bank, it would issue a check and I could just take that from there.

But if I leave in --

Chief Justice Earl Warren: What would you have to show the bank in order to get your --

Mr. Jerome I. Chapman: The same thing you have to show in any bank to get any deposit out of it.

You simply identify yourself as the person whose name and address appears on this ticket.

You do not have to show them the acknowledgement of purchase.

I think that if -- if there was any doubt and you did show them the acknowledgement of purchase that would clear out any doubt.

But as a sweepstakes is operated there is no requirement that you do anything with the Manchester Bank different from what you would do to get your money out any bank where its been deposited.

Justice John M. Harlan: (Inaudible)

Mr. Jerome I. Chapman: That's the -- that's one of the big questions in this case.

I can turn to that briefly now and then in more detail after I -- I would like to go into more detail after having sketched out the legal issue.

One thing can be said clearly about the acknowledgment as a carbon copy of the sweepstakes ticket.

It serves to show that a ticket had actually been purchased in the name and address of the person whose name and address appears on this, to the carbon copy.

Now there might be various uses that can be made of such a document that serves such a purpose.

At this point I would like to only point out only one primarily because this is the function that we alleged that we point it out in our brief, we expect to prove was the actual function of it, of the 75 acknowledgements used in this case.

Namely to facilitate the purchase of New Hampshire sweepstakes tickets by persons who did not actually travel to New Hampshire, did not actually come into the state and bought their tickets there.

In other words it would operate and we expect to prove that it did operate in this fashion.

Someone acting as a broker, in this case the defendant, the appellee Mr. Fabrizio would solicit sales of New Hampshire sweepstakes tickets in other states.

Here, it was in New York and Pennsylvania and would take orders from his customers, get their names and their addresses.

Then after having compiled a sufficient number of orders travel to the State of New Hampshire.

Buy tickets in their names and addresses by writing the customers name, the customers address on each of these tickets, get and acknowledge therefore.

Now, as I've said, the acknowledgement verifies officially that a ticket has been purchased for Joe Jones, 401 5th Street for example.

With this acknowledgement, the broker can travel back to New York or whatever state it is and verify to his customers that he has in fact carried out the -- their orders.

Has in fact order a New Hampshire sweepstakes ticket for them.

This is one function and this is the only function I think relevant here because this is what we -- if we're allowed to go to trial, we expect to prove it happened in this particular case.

Justice Potter Stewart: Well, how about --

Go ahead.

Justice John M. Harlan: Are you going to say, we're really concern with all of the details and -- on this appeal?

Mr. Jerome I. Chapman: I don't think we have to be, no.

Justice John M. Harlan: Isn't that a manner of proof that has to await the trial?

Mr. Jerome I. Chapman: That is exactly our contention Mr. Justice Harlan.

Justice John M. Harlan: Where -- you're here only on the sufficiency of the indictment?

Mr. Jerome I. Chapman: Oh, no.

Justice John M. Harlan: The sufficiency of the indictment (Voice Overlap)?

Mr. Jerome I. Chapman: Of the meaning of the statute.

Justice John M. Harlan: (Voice Overlap) within the meaning of the statute (Voice Overlap) --

Mr. Jerome I. Chapman: Yes.

I think that's exactly the point Mr. Justice.

I'm -- I make something of it now because -- and I shall at the close of my argument because the appellee and -- in the amicus suggest that on the basis of this indictment, they suggest on their briefs that on the basis of this indictment we could not prove the state of facts that I described for you that we expect to prove at the trial.

(Voice Overlap) Well --

Justice Abe Fortas: Suppose Mr. Chapman that you do have a problem at this stage which relates to the mechanics here because if this question, one question I suppose is whether this in -- the Government's positions is that this statute is proper even if it were construed to apply to a trip of a person from New York to New Hampshire with the purpose of an intent of placing bets for somebody in New York.

And that depending on the how -- on the -- how one construes the acknowledgement that may be the way the issue has to be stated here.

Mr. Jerome I. Chapman: What?

Justice Abe Fortas: (Voice Overlap) what would you say to that?

Mr. Jerome I. Chapman: Well, I would say that the construction of the acknowledgment and in the manner in which it is susceptible of being used or which in any particular situation it has been used is essentially a question of fact which must be fit within the framework of this statute.

Now, I think that that -- I don't mean to propose that this is -- to suggest that you must completely throw the acknowledgement to one side when you're trying to determine the issue here, mainly what framework must this be read again.

But I think that it is more crucial and I would like to turn to that to establish the statutory framework against which we must test this acknowledgement and its function rather than to hypothecate any particular state of facts which may or may not fit within that stick of a framework.

Justice Abe Fortas: Well, suppose Mr. Fabrizio has 75 friends and they all got together and said that, "Fabrizio, you go to New Hampshire and place some bets for all of us," and Fabrizio did that and he just left the acknowledgements in New Hampshire.

I suppose that you wouldn't say that the statute would support an indictment there, would you?

Mr. Jerome I. Chapman: No, because there are five elements of the offense.

One of which and this is not a matter of any dispute at all, its interstate transportation of certain objects.

Mr. Jerome I. Chapman: If nothing is transported.

Justice Abe Fortas: Well, if the indictment does not fit within this list, slip, token except for the record, paraphernalia, if the acknowledgement does not fit within that list then I suppose you don't have a prosecution.

Mr. Jerome I. Chapman: That is right Mr. Justice but I would suggest that that no longer is contend -- that no longer is questioned here either.

The acknowledgement at -- this was put an issue in the affidavit filed by appellee's former counsel in the lower court suggesting that the acknowledgement has no function whatsoever so far as the sweepstakes is concern so therefore it's not wagering paraphernalia.

But that -- that's not contended here anymore, the statute covers among other things, records, papers and writings.

And I think its common ground that if the acknowledgement is nothing else it's a record, paper in writing.

It's the other -- it's the fifth element and this is the one I would like to elaborate on --

Justice Abe Fortas: Yes, before you do, I'll just ask you --

Mr. Jerome I. Chapman: Certainly.

Justice Abe Fortas: -- one more question.

Suppose I went to New Hampshire and I placed a bet, got an acknowledgement and then came back to the District of Columbia.

The way this indictment reads, you had found an indictment exactly this same sort against me even though I just went up there for fun.

Mr. Jerome I. Chapman: Yes.

I think --

Justice Abe Fortas: This indictment would apply to that kind of a case?

Mr. Jerome I. Chapman: Well, I think we -- let me -- I think if I understand your question, I think this similar example would also illustrate it and I don't think there would be a --

Justice Abe Fortas: I'd like to know about mine.

Mr. Jerome I. Chapman: Well, yes, I think -- I think anybody can phrase an indictment regardless of what's fact you can actually prove to substantiate the indictment that can pass a muster under any statute.

If I -- if there was an indictment alleging that I with evil intent assaulted Mr. Glazer, I suppose that indictment would stand so far as the indictment is concern and it would state a charge under the assault statute.

Justice Abe Fortas: (Inaudible)

Mr. Jerome I. Chapman: But of course if I never assault Mr. Glazer.

I couldn't be.

I -- they couldn't prove the fact.

I think that would be your --

Justice Abe Fortas: Well, that isn't the point.

The point that I'm trying to get at is, does the Government construe this statute as capable of legal and constitutional application to the case that I put to mainly to a situation where a person goes to New Hampshire, buys a -- makes a bet for himself, comes back across state lines with an acknowledgement in his pocket.

Now, do you construe the statute to be applicable there?

Mr. Jerome I. Chapman: No.

Justice Abe Fortas: Because that -- the indictment as phrased here applies to that kind of situation that you have just stated.

Mr. Jerome I. Chapman: Right, I -- we do not and I think it is important to understand how we do analyze what the statute does encompass to illustrate why it is that we do not construe it to meet that situation.

That is to say that even though the indictment in the abstract would be a perfectly good indictment when we went to trial, we would not have actually proved an offense.

Now --

Justice Abe Fortas: That's a legal approach that I don't understand frankly.

I noticed it in your brief.

By what you're saying here is that you can't -- if you agree that the statute would not cover this kind of a case and what you're saying if I understand is that you can go to trial and supply the deficiency in this indictment.

Mr. Jerome I. Chapman: No, I -- that's not what I'm saying at all and if -- I think I can make this clear with a very small amount of elaboration.

There are as we conceive of it, five elements in the offense and it is the fifth element which is the one that -- the ones that's crucial.

Let me first put aside the first four because I don't think there are any dispute about those and I don't think that they should trouble us here.

First of course is the statute applies to any person except the common carrier.

There was some allegation in the lower court that it only applies to gangsters and professional criminals but that's no longer alleged.

It's perfectly clear that it applies to anyone who does certain acts unless he's a common carrier.

Of course it also requires interstate transportation.

That's not disputed.

Also and this is not disputed it requires scienter that you must -- the person involve must have knowledge of the nature of the materials he is transporting and intent to transport it.

And fourth, it only covers the enumerated, the described materials, the paraphernalia, papers, writings etcetera.

And fifth, and this is crucial.

It only covers those materials knowingly transported in interstate commerce.

If they have a certain function that is proscribed by the statute, I can illustrate this in two ways, in the legislative history of the Act, there was a good deal of discussion of a type of paper that's highly flammable, if you touch a cigarette to it it'll burn out quickly.

This is known as flash paper.

And it was pointed out that flash paper is very useful in bookmaking operations because bookmakers can keep there records on it and in the case of a raid all they have to do is touch a cigarette to it and the records are destroyed, the evidence is destroyed.

Now if a person is alleged to have carried a package of flash paper in inter -- knowingly have alleged to have carried a package of flash paper in interstate commerce, he comes within the first four elements of the offense.

But unless it is also alleged that that flash paper had a function which is proscribed in the act, for example, used in bookmaking, a violation of the Act is not made out.

You can carry a flash paper for use in a magic show for example or some other theatrical production.

For the same thing -- the same type of analysis applies to these acknowledgements of purchase.

If I carry acknowledgements of purchase across the state line for use in building a bonfire for example and the indictment only alleges that's the use I'm making of it, then I haven't committed an offense under the statute and the indictment doesn't charge.

Justice Abe Fortas: Yes, but the indictment here as I read it as devoid of any reference to which you now say if I understand you as an essential element.

All it says is that he carried 75 acknowledgements of purchase to be used in the New Hampshire wagering pool.

Mr. Jerome I. Chapman: Exactly, and that's the essential element.

Justice Abe Fortas: Well you -- but you've just said that if he carried the acknowledgements across state line to be -- to burn them up when he got to New York, if that would not be an offense under the statute --

Mr. Jerome I. Chapman: That's right.

And it --

Justice Abe Fortas: You said, still be -- you're still talking about acknowledgements that he had made a -- placed a bet in New Hampshire, aren't you?

Mr. Jerome I. Chapman: Yes, but if the (Voice Overlap) --

Justice Abe Fortas: Alright, is it your position that merely because they were acknowledgements of a bet that it had been made in New Hampshire, transportation across the state line is a violation of this statute?

And if that is so, then you're contradicting what I understand --

Mr. Jerome I. Chapman: No.

Justice Abe Fortas: -- earlier statement (Voice OverLap)

Mr. Jerome I. Chapman: Indeed the contrary.

The mere fact that this is a piece of paper that has written on it the words New Hampshire Sweepstakes and that these pieces of paper with those words written on it are carried in interstate commerce is not sufficient.

We must allege as we do and we must prove as we expect to that this piece of paper or this 75 pieces of papers were to be used or adapted for use in the sweepstakes.

Justice Abe Fortas: No, they had been used, sir.

The acknowledgment had already been used.

There was an acknowledgement of a bet that had been placed.

Now do you also have to allege?

Is it your construction of this statute that you have to allege some thing beyond that that is to say that Fabrizio is going to do something with the acknowledgement in the nature of gambling or participation in a pool after he gets back to New York?

If you don't include that element, may I suggest to you that perhaps you'll have to reconsider your answer to my previous question, which is whether if I go to New Hampshire, make a bet, carry the acknowledgement back with me to the District of Columbia, am I violating this statute as the Government construes it?

Mr. Jerome I. Chapman: Let me try to restate the position I am -- I am taking in trial to make it abundantly clear.

The only argument for the propositions that an individual who buys his own ticket at the sweepstakes and then carries the receipt back to the District of Columbia, lets say does not violate the Act.

The only -- the reason that we take that position is a factual one.

The New Hampshire Sweepstakes Commission has and this is -- there's no dispute about this, has attempted to build into its sweepstakes operations certain safeguards so that its purchasers will avoid as much as possible conflict with the laws of other states, conflicts with the federal -- with the federal laws.

They have notified -- they notified there -- the people who purchase sweepstakes tickets and get these acknowledgements that while we cannot give advice on the laws of all the states, if there is any doubt in your mind that the carriage or possession of this acknowledgement will in your home state constitute a violation of that law, leave it here, don't carry it.

In other words, because of the way that sweepstakes commission has set up there sweepstakes I think it -- I think that in a case of the individual who buys this ticket and goes back home with it, when that case goes to trial I think the Government would have an extraordinarily difficult time to show the requisite wagering function of that document.

Now, let me compare another type of operation, a private numbers -- private numbers game --.

Justice Abe Fortas: (Inaudible) before you do that, you get -- I'm having a lot of difficulty.

Is it your statement to us or is it not that as the Government construes this statute, the acknowledgement brought across state line has to have a subsequent and additional wagering function?

That's about as plainly as I can say it.

Mr. Jerome I. Chapman: No, it is our condition -- it is our contention that it must have some wagering function.

Justice Abe Fortas: Well, it's already had a wagering function.

Mr. Jerome I. Chapman: Well, now that's the point where -- that's the point where we disagree, Mr. Justice.

Justice Abe Fortas: (Voice Overlap) you see if that is so, yes Mr. Chapman, if that is so, if what you have just said is so then when I bring my acknowledgement back from New Hampshire, I can be prosecuted under this statute.

There's a subsequent wagering function in the sense that if I win I'm certainly going to collect.

Mr. Jerome I. Chapman: That's right.

Justice Abe Fortas: And what bothers me in this case stated very -- as plainly as I can is that -- as the Government construes -- I am afraid that as the Government construes this statute as reflected by the way this indictment is framed the Government can indict and successfully prosecute somebody who goes up to New Hampshire buys 75 tickets and comes back across state lines with 75 acknowledgements in his pocket regardless of anything else in his subsequent act thereafter, that's what bothers me.

Mr. Jerome I. Chapman: Well, let me in response to that make four additional statements not to repeat anything that I've said already.

In the first place, the sufficiency of the indictment as a pleading is not an issue in this Court.

The question before this Court is the construction of Section 1953, what does that cover?

Now the problem that you're raising, Mr. Justice Fortas, I would contend relates to in one respect perhaps is sufficiency of the indictment as a pleading but I think even more directly to the factual question of what is the function of New Hampshire's acknowledgement of purchase?

Now it's a question of -- that's a question of fact.

When I responded to your question as to whether the individual purchaser would be liable under the statute.

I was doing that on an -- on my own assumption as to what the fact is.

How -- what this piece of paper in the abstract mean as a matter of fact.

But of course that's not an issue involved here.

It's not what the -- what in fact this acknowledgement is.

It's whether we allege in our indictment all of the necessary elements of Section 1953 as Your Honors are to construe it.

One other point I'd like to make and again in reference to your problem Mr. Justice Fortas is this.

Any time you have a criminal statute which draws a sharp line as it should between what is illegal on the one hand and what is legal on the other hand you're bound to have a cluster of cases at the borderline that might post difficult.

It might be a little close in interpretation one way or the other indeed might even raise constitutional questions.

But it's never been and this is so in any criminal statute that sharply defines the line of illegality.

But it's never been held that because at the borderline there might be difficulties and there might be problems that when we're dealing with a case that is quite four square within the meaning of the statute that we -- that we in any way modify the position that we would take in that case.

Justice Abe Fortas: I understand that but you people brought this case up to us.

Mr. Jerome I. Chapman: That's right.

Justice Abe Fortas: And under this particular indictment and I've got to assume that you believe that to construe the statute so as to authorize the fact -- the grafting and filing of this kind of an indictment which doesn't say anything more to me than that Fabrizio bought 75 -- placed 75 bets, got 75 acknowledgements and went across state lines with the 75 acknowledgements in his hot hand so as you say.

I would contend that it says one thing which in our view of the statute is -- one thing very significant more than what you've described and that is it alleges that these acknowledgements had a wagering use.

This is the crucial element in the statute.

The same thing again with the -- if we only allege that we were taking these acknowledgements -- that he was taking the acknowledgements across the state line for use in a paper drive we wouldn't alleged a sufficient to element for the offense under 1953.

But we did allege that he brought this across to be used and that they were adapted and devised and designed for use in a wagering pool with respect to a sporting event.

Now the --

Justice Abe Fortas: (Inaudible)

Mr. Jerome I. Chapman: To wit --

Justice Abe Fortas: Well, you've got to the, to wit, don't you?

Mr. Jerome I. Chapman: Oh, indeed, to wit: the New Hampshire sweepstakes and that brings us to the dispute that we really have in this case, whether the New Hampshire sweepstakes is the kind of a wagering pool with respect to a sporting event contemplated by the statute.

We allege that it had a function in that sweepstakes.

In our view this is a sufficient allegation under the statute.

The appellee says this is not a sufficient because in their understanding a wagering pool with respect to a sporting event as encompassed in Section 1953 means an illegal wagering pool, illegal under the laws of the state where it originates.

Now that's where we really have a dispute here.

That's the legal question that brings us to this Court Mr. Justice.

We contend that the statute applies to wit: any papers that have a use in any wagering pool with respect to a sporting event regardless of whether that wagering pool is legal within its state of origin or not.

In our view, the legality of a wagering enterprise within its home state is not material to the definition of the offense in 1953 because Section 1953 only comes into a -- only comes into operation when gambling transcends state boundaries.

The -- and this is the situation that happened here.

We have a crossing of state boundaries.

Now I think we can look to the -- all of the typical indicia for -- of congressional intent and congressional meanig and find that any wagering pool whether its legal in the state of operation or illegal in the state of operation, its contemplated here.

Let me say at the outset of course the New Hampshire sweepstakes is legal in the State of New Hampshire.

But it's not in any way unique in this respect.

There are more than 75 countries and I (Inaudible) that this statute covers interstate as well as foreign commerce.

More that 75 countries have legal sweepstakes or lottery operations including Mexico, our very near neighbor to the south.

In addition to what you might call a strictly foreign country, the American Commonwealth of Puerto Rico has for many years had its -- has a legal sweepstakes.

And it come even closer to home, the State of Nevada presently and certainly at the time this statute was enacted licensed bookmaking and sporting pools.

And both of this operations, bookmaking and sporting pools are covered by Section 1953.

So, the State of New Hampshire doesn't stand out any unique -- doesn't put itself in any unique position because gambling is legalized there.

The same is true as they say in many countries, in Puerto Rico and Nevada and of course conceivably so in any state of the union.

The statute itself of course, the language of the statute doesn't say anything about legal wagering pools with respect to a sporting event.

It just says wagering pools with respect with sporting events.

Justice William J. Brennan: Anything in the history of the statute?

Does this follow the (Inaudible)?

Mr. Jerome I. Chapman: Pardon me?

Justice William J. Brennan: Is this statute older than the (Inaudible)?

Mr. Jerome I. Chapman: No, it's a -- subsequent.

Justice William J. Brennan: Subsequent?

Mr. Jerome I. Chapman: Statute was enacted in 1961.

Justice William J. Brennan: Well, was that what brought it about?

Mr. Jerome I. Chapman: That was part of the background that --

Justice William J. Brennan: Well, is there any history of --

Mr. Jerome I. Chapman: Yes, there -- there's an explicit legislative history on the question that I'm directly focusing on.

We cited in a -- footnote 8, page 11 and 8 of our briefs, Senator Kefauver was asking a question about the statute to assist an Attorney General Miller.

That time he was the head of the criminal division and he was the Department spokesman at the Senate hearing.

Senator Kefauver said and inquired whether this, "bookmaking, wagering pool and so forth mean where it is not legal by state law."

Mr. Miller's response to this, and again I quote, "Unequivocal."

"No sir."

That provision is not in there.

It was the position of the Department that these types of paraphernalia, records and other devices should be barred from interstate commerce.

So, there was -- the question that is at issue here was directly put at least one time during the hearings on the Bill and directly answered by a --

Justice Abe Fortas: Well, what's this legislative history, Senator Kefauver's statement or Solicitor -- or the Assistant Attorney General's statement?

Mr. Jerome I. Chapman: They're all part of it and there's more which I would like to get to also.

The -- before I turning there, let me focus again on some of the language in the statute which of course is the first stop on the way of finding out what Congress meant.

The statute doesn't distinguish between illegal wagering pools and the legal wagering pools but it does create certain exceptions for certain types of wagering.

Accepts -- over a certain types of wagering and certain types of paraphernalia, for example in the paraphernalia category, it accepts the carriage of newspapers.

This primarily was out of concern for freedom of the press.

They didn't want have any -- any crimp on that protected right at all.

In addition, Congress carved out an exception for legal pari-mutuel betting material and this is the one that I think is of some special relevance here, for the carrying of materials to be used in the placing of bets on a sporting event into a state where such betting is legal by statute.

Now when Congress set up this very narrow and very carefully drawn pattern of exceptions, it cannot be said that they -- that the courts are free to imply by some form of interpolation a further exception not set out by Congress for the carriage of wagering materials from a state where those materials are legal.

In fact if that were -- if that exception, the exception for carrying materials from a state where they're legal or in the Act it would do great damage if not completely nullify the Act itself because --

Justice Abe Fortas: Mr. Chapman, do I correctly read Subsection B of 1953, I could go to New York or to some state where there are pari-mutuel betting, I could buy a pari-mutuel ticket at the race track.

I could then carry that across state lines and that would be an exempt in the statute.

Mr. Jerome I. Chapman: Correct.

Justice Abe Fortas: And I can go and buy 75 of them and still exempt, wouldn't it?

Mr. Jerome I. Chapman: That is correct.

Justice Abe Fortas: But I suppose if the -- I don't know enough about this so but I -- to know, but I suppose if this cannot stretch in the imagination be called pari-mutuel(Voice Overlap) --

Mr. Jerome I. Chapman: Oh, no.

Pari-mutuel is a very clearly defined termed.

It involves among the elements in the pari-mutuel betting scheme or betting act a race track or at the place where the sporting event takes place.

And the betting takes place very shortly before the particular sporting event, usually at the race, the horse race, or dog race.

The betting takes place almost immediately prior to the event on which the price turns and the price -- and the only place you can pay -- the only place you can collect as well as the only place you can buy ticket is at the race track.

There's really very little --

Justice Abe Fortas: So at New York went ahead with (Inaudible), and he went up there and bought a ticket off track that might -- that would not be a pari-mutuel ticket so that --

Mr. Jerome I. Chapman: No, the same is true in Nevada --

Justice Abe Fortas: (Voice Overlap) that across state lines or this statute had to be amended but that's your position?

Mr. Jerome I. Chapman: Well Nevada, that's been the case in Nevada for many years.

It was at the time the statute was enacted and there was of course a discussion about it in the hearing.

Nevada legalizes off track betting and there is an exception in the statute for the carriage of material relating to wagering into such a state.

That is to say that if you bring in papers that the Nevada bookmakers use to keep their records on, you bring it into Nevada, there is no violation of statute.

But to extend what is legal in Nevada to the other states would violate the statute.

Justice Abe Fortas: Who was -- I'm sorry to take some of your time.

Mr. Jerome I. Chapman: If I'm right.

Justice Abe Fortas: What is the purpose of that exemption for pari-mutuel tickets legally acquired?

Mr. Jerome I. Chapman: Well I think it was recognized that the -- there is very minimal danger of trafficking in the pari-mutuel ticket.

That pari-mutuel betting itself -- well first of all, by the way, the exception is not for any pari-mutuel betting but only for legal pari-mutuel betting.

But legal pari-mutuel betting was not considered by the Senators and Congressmen who addressed themselves to this issue as being an evil where the states sought to -- saw fit to legalize this type of operation which is quite closely confined to a single place, a race track.

The Senators and Congressmen felt there was a no need for the Federal Government to enter into this area.

In addition of course that its well-known and it was mentioned in the hearing that there are a number of race track that are located near state line so that everyday people go from the District of Columbia perhaps to Laurel, Maryland or to Charles Town, West Virginia and there's a lot of interstate commerce involved here.

But in essence all we're doing is -- all that's involved is a simple -- singly located pari-mutuel operation and they wanted to -- they want to exempt that.

Quite in contrast to that is many sweepstakes and certainly the New Hampshire operation where there's -- in one instance an 11 month period of buying tickets are -- and the second is that this year, a six month period of buying tickets as opposed to pari-mutuel situation where you buy your ticket before the race.

The race is run, you either win or you lose.

I think these are the considerations that were expressed and entered the minds of the legislators on this subject.

But the -- there is a -- they say an exemption for carrying materials into a place such as Nevada or indeed into New Hampshire for use in this state legalized operations.

But when the -- when there's a possibility of opening a base camp, let us say a bookmaker, opening up a headquarters in Nevada but all legal bookmaking material were exempt -- were exempted from the statute whether it was coming into Nevada or going out from Nevada this would be a boon to Nevada bookmakers because they could open up a headquarters there and operate in other states in violation of those state laws from that camp.

All they have to worry of course are the laws of the other states which the -- this statute among other things was designed to fortify, to assist them.

Its not at all surprising I might -- I should note, as we do note in our brief that Congress would pass a statute prohibiting the interstate transportation of material that in its inception at least is related to a legal wagering pool or a legal sporting operation.

Because for over 90 years Congress has had a statute which has prohibited the mailing of material that is connected to legal lotteries or legal wagering pools.

Now this statute has been -- had been very narrowly construed, this is now in the U.S. Code in Section 1301 through 1305.

The statute is not nearly as broad as 1953.

It doesn't cover all the paraphernalia and materials that related primarily to lottery tickets or things that could be held as a matter of fact to represent a lottery ticket.

Congress was disturbed and discussed at great length the limitations that had been placed on the prior statute.

And one of the purposes of 1953 was to plug the loop holes that had been opened up the earlier legislation.

But for our purposes here it's only relevant to know that the earlier and this is not at all contested.

It's recognized in the briefs of the other side.

Here the statutes did apply to the mailing of for example Irish sweepstakes ticket.

Irish sweepstakes are perfectly legal in Ireland.

But when they're to be mailed out of that country here, they violate -- they had for many years violated Section 1301.

And now the same thing, if interstate transportation is involved would violate Section 1953.

The course the same is true, we contend with respect to the New Hampshire sweepstakes.

There's no real difference for these purposes.

One point is dwelled upon at great length in appellee's briefs and the amicus briefs filed by the State of New Hampshire and that is the discussion in the legislative hearings and the Senate on how -- about organized crime.

Well it is true that organized crime was considered a very serious problem by the legislators who enacted this statute and certainly that one of the aims of the statute was to put a crimp into the operations of organized criminal syndicates.

But the statute went and plainly so went farther than that very, very limited purpose.

It clearly was intended to apply as was recognized in the hearings to an individual bookmaker or individual operator of the lottery.

It was not connected with any syndicate.

The point was to close the channels of interstate commerce to gambling operations which otherwise would transcends state lines.

Subsidiary purpose was to assist the states of the union and by far the majority of the states and the union prohibit off track betting.

All of them prohibit strictly a numbers game and most of them prohibit lottery operations.

The idea was to assist this states in the enforcement of there statutes as something that would be defeated if as an example I gave before I -- bookmaker in Nevada were allowed freely to operate throughout the country from that home base.

Justice John M. Harlan: You mean, (Inaudible)?

Mr. Jerome I. Chapman: No constitutional argument has been made at any time in this case.

No question was raised at all.I think on this last point I -- the State of New Hampshire itself I believe has recognized the problem of the conflict that could occur when one state legalizes a form or all forms indeed of gambling.

And the other states in the union maintain there prohibitions against gambling.

Shortly after the sweepstakes was initiated I think in 1964 the New Hampshire Sweepstakes Commission sent out a memorandum to prosecuting and law enforcement officers in all the states describing the sweepstakes operations and explaining the safeguards that were attempted to be build into the operations to avoid conflict with the state law.

But they did point out and properly so and I read briefly from the memorandum.

When one state permits the sale of sweepstakes or lottery tickets and others prohibits such sale the primary danger is that tickets purchased lawfully in New Hampshire would be resold unlawfully elsewhere.

And this danger that New Hampshire recognized is precisely one of the dangers which the members of Congress recognized when they passed 1953.

Now, in closing I would like to return --

Justice Potter Stewart: New Hampshire itself makes it illegal for somebody to engage in the business of doing that, doesn't it?

Mr. Jerome I. Chapman: You read my mind Mr. Justice, this was -- this exactly was the point out I was about to make.

That is correct.

This statute I should point out was not in existence at the time appellee made his trip from New York to New Hampshire and back.

It was enacted after the indictment in this case was filed.

But at the present time there is a statute in New Hampshire which prohibits the business of selling New Hampshire sweepstakes tickets in any manner except by the way that the sweepstakes commission sets it up itself.

In other words, someone who is not an agent of the state is prohibited from going into the business of selling these tickets.

Justice Abe Fortas: There's an indication, as a matter of fact on the acknowledgement in this case says non-saleable and non-transferable.

Mr. Jerome I. Chapman: The acknowledgement is non-saleable and non-transferable.

But of course a person can sell a ticket, indeed a person who sells any item under certain circumstances without there being a physical transfer.

So, it is possible for me to travel from New Hampshire back to the District of Columbia and to offer to sell to someone here and to actually make a sale to someone here of a sweepstakes ticket even though the ticket itself remains in New Hampshire.

What I have accomplished is the same thing.

I have enabled that person to place a bet on the sweepstakes.

And the -- at the same time I have earned a commission for myself or for those services.

What I have to prove to him and satisfy him that I have actually carried out his order, that I've actually placed a bet that he requested I placed.

I have an acknowledgement of purchase which verifies that his name and his address are inscribed on a ticket in the possession of the State of New Hampshire.

Justice Abe Fortas: Does the Government construes this statute would that be crime?

Let's suppose that I asked a friend who is going to New Hampshire to place a bet to me and this friend did it and brought back the acknowledgement.

Would both of us be guilty of a crime under this statute as the Government construes the statute?

It separate it from any course of business or any --

Mr. Jerome I. Chapman: Yes (Voice Overlap).

Justice Abe Fortas: -- large scale gambling enterprise but I just have said that to a friend.

Mr. Jerome I. Chapman: Yes.

I would -- I will answer your question directly but I think to avoid misleading I must make one preparatory statement.

The situation that you described as some of the others you've mentioned do go to a border line situation under the statute.

We construe the statute to apply to the knowing carriage of papers, paraphernalia etcetera in interstate commerce where those papers and paraphernalia have a wagering function.

Now I would say that as a matter of fact the situation you've describe would be a case where there is a wagering function in that paper.

It does facilitate the other state --

Justice Abe Fortas: And then how can -- because you've obviously an acknowledgement has a wagering function.

But the question is whether it has a wagering function separate and apart from the New Hampshire's scheme itself?

Mr. Jerome I. Chapman: Oh no, it must be a function in either bookmaking or --

Justice Abe Fortas: --No but --

Mr. Jerome I. Chapman: -- a numbers game or waging pool.

In this case it must be a function of a New Hampshire sweepstakes as we allege.

Justice Abe Fortas: The question is whether there has to be an additional wagering function --

Mr. Jerome I. Chapman: No.

Justice Abe Fortas: -- in the transaction that is to say whether as applied here whether it would be essential that Mr. Fabrizio is in effect sort of engaged in the business of acting as broker or agent --

Mr. Jerome I. Chapman: No, Mr. Justice.

Justice Abe Fortas: -- or reselling these New Hampshire participations.

Mr. Jerome I. Chapman: No, Mr. Justice Fortas.

The statute applies where the papers have a wagering function.

Now I think that the -- I think that the state of -- in fact I note that the State of New Hampshire and that appellee from what they said in their briefs would disagree with you on the fact of whether this particular paper has a wagering function.

Well, I understand and I think -- I don't think that that factual issue is a matter that must be resolved here, for the position of this case.

I would point out one other point in relation to the questions you've ask.

Now I realize again this is not directly relate to the problem in this Court, the interpretation of the statute.

But this statute was drawn broadly and decidedly so to eliminate as much as possible loop holes which had appeared in the earlier statute as a result of its breath this was recognized as was mentioned expressly by Attorney General Kennedy in his opening testimony in the Senate and it was also discussed in a memorandum which the Department of Justice sent to U.S. attorneys across the country after the statute was passed and which is quoted in the brief of the State of New Hampshire.

As a result of this breath, it was recognized that there would be cases of the sort you described not only in relation to the New Hampshire sweepstakes but in relation to clearly illegal activity.

Justice Potter Stewart: Well, (Voice Overlap) not only in relation to the New Hampshire sweepstakes.

This statute -- the federal statute was enacted long before the New Hampshire --

Mr. Jerome I. Chapman: Well, that's right.

Not only in relation to sweepstakes, legal sweepstakes such as Puerto -- perhaps more appropriate Puerto Rico, Irish sweepstakes, the other legal sweepstakes that were existent in the similar to the New Hampshire sweepstakes.

Justice Potter Stewart: But the New Hampshire sweepstakes was not in existence at that time --

Mr. Jerome I. Chapman: Oh no.

Justice Potter Stewart: And I -- well, since I've now interrupted you, I -- you're -- you have been directing yourself during the last few minutes to the policy arguments in support of your position.

Are you meaning to suggest with a straight face that Congress would have made the sovereign State of New Hampshire's state operated lottery subject to this law if it -- if this -- if the lottery had been in existence at the time enacted if this law?

Mr. Jerome I. Chapman: Well, I -- I'll try keep a straight face Mr. Justice Stewart.

I would think that they -- the Congress viewed -- would have viewed the New Hampshire sweepstakes in the same light as it viewed legal bookmaking in Nevada and the legal sweepstakes indeed the Irish sweepstakes as mentioned half dozen times in the hearing.

Illegal sweepstakes operating in various foreign countries that is to say would have viewed them as a wagering pool with respect to a sporting event and where this operations legal in the area where they were -- where they originated.

Justice Potter Stewart: This is not just legal in the area, this is run by the State of New Hampshire --

Mr. Jerome I. Chapman: Well --

Justice Potter Stewart: -- to raise state revenue.

Mr. Jerome I. Chapman: I -- well, the same is true --

Justice Potter Stewart: Operated by the state.

Mr. Jerome I. Chapman: The same is true to the other -- to the Mexican sweepstakes.

Justice Potter Stewart: But this is a unique -- it's the one of the 50 states which operates a lottery.

Mr. Jerome I. Chapman: Well it's unique --

Justice Potter Stewart: (Voice Overlap) A part of it -- as a part of the Internal Revenue System.

Mr. Jerome I. Chapman: It's not unique now, its not -- it's not unique and its not -- it's certainly not unique in our history.

Many states have operated lotteries.

I think the list at one time was up to a dozen at various time.

Now it is unique in the 1960's but there have been state lottery.

I think what Congress has clearly had in mind was that when you're talking about operations which transcends state borders and when you have as we do have in this country the overwhelming majority of state prohibiting lotteries, bookmaking, this other forms of wagering covered by 1953 that whatever you can say about the policy of the state which legalizes or indeed sponsors and operates a certain form of wagering, you still -- as far as the Federal Government is concern cannot close out the dangers that there will be an impingement upon the policies of the other states when interstate commerce is involved.

I would have -- I have no hesitation in answering your question whether Congress would have enacted the statute the same way in relation to the New Hampshire's sweepstakes had it been in operation with the (Inaudible).

Indeed there have been several Bills introduced in recent years to carve out an exemption for the New Hampshire sweepstakes in relation to the mailing statute, the mailing of lottery materials.

These have not passed.

One statute has passed exempting the New Hampshire's sweepstakes from the wagering tax operation but there is a proviso in that which says that this only goes to officials and agents of the state that's operating the sweepstakes itself.

They -- Congress obviously recognized that even where a state legalizes and sponsors a sweepstakes there maybe outsiders who could take advantage of that operation for their own private purpose.

Justice Potter Stewart: Not under the New Hampshire system, not the way it's operated, could there be?

Mr. Jerome I. Chapman: Well, that -- that's what we contend happened here.

That there is -- although New Hampshire does protect itself to the large extent there is this one area where sales can be consummated outside of the state through private agents.

Justice Potter Stewart: Well, not only protects itself, it protects the other states, doesn't it because so far as New Hampshire's concern this so -- this acknowledgment has no function at all in the sweepstakes.

The buyer can take it --

Mr. Jerome I. Chapman: I don't believe --

Justice Potter Stewart: -- and tear it up and he still has -- his name and address are still inside that machine.

This acknowledgement has no function at all and everything stays within the borders of the State of a New Hampshire because it stays inside that machine after you've purchased that ticket, isn't that correct?

Mr. Jerome I. Chapman: I would doubt that the gentleman from New Hampshire and of course he can speak to that better than I would acknowledge that there is no function and there is not --

Justice Potter Stewart: Well, it says so right on its face--

Mr. Jerome I. Chapman: Well, it said that (Voice Overlap) --

Justice Potter Stewart: It's not in the brief.

Mr. Jerome I. Chapman: -- presented to --

Justice Potter Stewart: This is only the acknowledgment of purchase.

It need not be retained or presented for payment.

Mr. Jerome I. Chapman: Oh, well that's correct.

That's correct.

Justice Potter Stewart: Before you can -- write your ticket and pay your $3 and this acknowledgment comes out of the machine you can tear it up and you have no greater or no less interest in or possibility of winning in the New Hampshire sweepstakes, is that true?

Mr. Jerome I. Chapman: Once your name is on the ticket but there is the question of how do you decide -- how do determine whose name goes on those tickets and whose name don't go on the ticket.

Well, there -- the State of New Hampshire doesn't control that.

The person who comes to the machine writes the name and address on the ticket.

Now if before coming to that machine he has made arrangements in other states for a fee or for a commission to travel to New Hampshire and to purchase tickets for these absentee purchasers he may very well be violating the laws of other states.

Indeed as we point out in our briefs we be violating laws of the State of New York and we contend that this is a violation as we alleged here of Section 1953.

Justice Potter Stewart: That is, he's having this in his pocket or in his sloughs when he crosses the state line, that's the only possible federal violation.

Mr. Jerome I. Chapman: Of course well when it -- yes that's right, when --

Justice Potter Stewart: Not making any arrangements with people in New York state?

Mr. Jerome I. Chapman: No, it's -- among the elements in the offense is the interstate transportation of these materials for a proscribed purpose and it's the arrangements relate to the proscribed purpose for which these things, these objects --

Justice Potter Stewart: Well, I as I understood you finally to answer my Brother Fortas' questions to say that the proscribed purpose was the New Hampshire's sweepstakes.

Mr. Jerome I. Chapman: That's what we allege, oh yes.

Justice Potter Stewart: And having nothing to do with these arrangements that he made with his customers in New York.

Mr. Jerome I. Chapman: Well, the proscribed purpose was used in the sweepstakes, was to facilitate wagering in the sweepstakes and indeed it was -- it is the arrangements that he made with New York.

It was the customers in New York that indicate that what he was doing was facilitating, wagering by these persons in the New Hampshire sweepstakes without having them -- without requiring them to come into the state.

The --

Justice Potter Stewart: I think I understand your contention.

Mr. Jerome I. Chapman: Yes, well, the function --

Justice Potter Stewart: I don't understand though how just one more time.

I -- the large -- more than 50% of these sweepstakes ticket are bought by out of staters, aren't they?

Mr. Jerome I. Chapman: Well, we don't have figures on how many are bought but we know how many winners there are.

Justice Potter Stewart: (Voice Overlap) --

Mr. Jerome I. Chapman: There 17% of the winners are in staters and 83 are out of state.

Justice Potter Stewart: (Inaudible)

Mr. Jerome I. Chapman: Well, somehow they get -- they could travel to New Hampshire and get them of course so they could get them to some other agencies.

And we don't have any figures on how many get them one way, how many get them the other way.

But we do strongly urge and in conclusion that an indictment which does charge that an individual carries certain papers to wit acknowledgements of purpose which are alleged to be used and devised and adapted and designed for used in a wagering pool to wit the New Hampshire sweepstakes does state an offense under Section 1953.

And because of this we would strongly urge that the case be reversed, remanded to the District Court so we can go to trial and prove the allegations that we've made.

Thank you.

Chief Justice Earl Warren: Mr. Chapman.

Mrs. Friedlander.

Argument of Betty D. Friedlander

Ms Betty D. Friedlander: May it please the Court.

As I understand the original concession made by the Government at the commencement of this argument is -- he seem to say that an individual who did what this indictment charge, that is a person who -- a non-resident who goes to New Hampshire, purchases his sweepstakes and returns with the ticket does not violate the statute.

And he seems to have conceded that this indictment does not violate the statute.

Nevertheless, he says that if an additional wagering purpose is shown at the trial of this case then in that event the indictment is sufficient.

Now I think procedurally the Court should understand that the Government appears to have conceded that this indictment as it is read in any reasonable normal common sense way is not sufficient to charge a crime as the District Court held.

At the -- after the indictment was returned there was a motion for a bill of particulars made.

The Government came forth alleging no other violation of federal, state or local law and nearly again reiterated their claim that the defendant carried New Hampshire sweepstakes in interstate commerce.

Then we have the motion to dismiss the indictment.

Again, no other facts such you say are now alleging are presented to the District Court where possibly a decision could be made on them, possibly a motion to amend the bill of particulars could be made sovereigns from the Government until they argue in the brief in this Court that there is additional prejudicial conduct which is really not relevant to this indictment.

The statute says anybody who carries wagering paraphernalia proscribed by the statute in interstate commerce violates the statute.

That's what the indictment charged.

So that any wagering para -- conduct which this defendant, this appellee may have been guilty of is not a violation of Section 1953 and the Government is talking about something else.

And if they are talking about something else then it be whom -- the Government to move for another indictment.

And I think on the basis of this very -- this -- what I understood to be tantamount to a concession or there's -- this Court should affirm the decision below.

There is no grounds for to them to show any other fact.

Justice Abe Fortas: Mrs. Friedlander the printed record does not include a motion for bill of particulars.

The bill of particulars itself appears on page five of the printed record.

What was the substance of the bill of particulars?

Ms Betty D. Friedlander: The motion -- the request -- the demands of the bill of particulars is as follows:

Defendant moves this Court for an order directing the United States of America to file and start upon the dependent of bill of particulars to the following matters.

Embraced within the indictment; 1.) Set forth in detail all records, papers and writings.

It will be claimed that defendant knowingly carried in interstate commerce in violation of Section 1953 of Title 18 U.S. Code.

Justice Abe Fortas: Is that the only --

Ms Betty D. Friedlander: The -- paragraph two set forth any and all violations of any state laws, ordinances or rules that the United States of America will claim the defendant violated.

Justice Abe Fortas: And that's all unless --

Ms Betty D. Friedlander: And that is all.

Along the basis of this failure to move to amend this bill of particulars if they had an additional evidence to show and also on the basis of the really threshold fact that under this indictment there is no more to show other than that he carried this paraphernalia in interstate commerce.

There's grounds here for an affirmance.

Now since the Government has made the argument that New Hampshire is within this statute I am going to very briefly point out to the Court the legislative background in which this statute was passed.

This statute was passed in response to a modern problem of organized crime which had infiltrated Governments at the local and state level.

It was multi-state.

It was a web, a design, a pattern of illegal business activities which the states were unable to pierce.

In response to this specific problem of organized, illegal organized activity, these statutes were passed.

Now, it is necessary to point out that we are talking here about activity which is conducted by a stock sovereign state as has been mentioned.

And the fact of its being conducted by a sovereign state precludes the possibility of its being the kind of wagering pool within the statute.

The Government is using a sort of in terrorem approach here and claiming that if we permit New Hampshire to be not within the coverage of this statute that states will be inundated with illegal wagering paraphernalia.

In order for such a thing to take place you would have to assume an absurd example that a state is a renegade and will in violation of the laws of a sister state inundate the state with its own wagering paraphernalia.

This is an absurd example to justify the absurd conclusion that the judge -- the Government is asking for here.

Chief Justice Earl Warren: Is it though -- isn't that -- hasn't it been a great activity of organized criminals for instance to try to use the bookmaking operations of one state in which it's legal all over the United States and the states have done nothing to prevent that.

Ms Betty D. Friedlander: Well because --

Chief Justice Earl Warren: Now, why would it be fantastic to think that the same thing could develop in this situation?

Ms Betty D. Friedlander: I believe what Your Honor is pointing out is a situation where a legal event has been misused by organized racketeers that they could take the trappings of the New Hampshire sweepstakes and carry on perhaps some illegal related activity in another state.

And the answer is that if they do, they are definitely within the statute because that is no longer the wagering paraphernalia of New Hampshire.

But they are using it to another illegal use and --

Chief Justice Earl Warren: But suppose this -- suppose this man had set up a business in New York whereby he invited people to come there and he would act as a broker for them to participate in the New Hampshire sweepstakes and he did a big business, it can be done you know.

This could be done.

Let me just --

Ms Betty D. Friedlander: Yes.

Chief Justice Earl Warren: Let me just finish it.

Ms Betty D. Friedlander: Yes.

Chief Justice Earl Warren: And then as an incident of that business he used these certificates that are in this case.

How would that be any different from the situation where he would use the sports betting pools in Nevada which are legal to set up the same thing in other states based upon the Nevada rule which is legal in Nevada?

Ms Betty D. Friedlander: Your Honor --

Chief Justice Earl Warren: Or what would be the distinction between those two operations?

Ms Betty D. Friedlander: There is no distinction between an illegal use of legal state gambling paraphernalia.

Chief Justice Earl Warren: Yes.

Ms Betty D. Friedlander: Anybody can take what is legal in one state and misuse it in some way to his own profit in another state in violation of the laws of the state.

Chief Justice Earl Warren: Yes.

Ms Betty D. Friedlander: But also in misuse of the paraphernalia of the state.

In other words it is not the state that is shipping out this paraphernalia to be used illegally.

But it is people outside of the operation of New Hampshire who are using it illegally.

Chief Justice Earl Warren: Yes.

Ms Betty D. Friedlander: And this pattern of statute was definitely designed to cover the situation where you are talking about illegal organized criminal kind of gambling conduct.

And it would be covered but not because it's New Hampshire who is shipping it but because somebody is misusing the New Hampshire paraphernalia.

Chief Justice Earl Warren: Well, if this man entered into a business, brokers business in New York and carried these certificates back into New York to convince his -- these people that he had invested their money in the sweepstakes and that they would therefore get their money if they want, wouldn't that be the same as carrying the gambling operation in Nevada into another state?

Ms Betty D. Friedlander: Well, Your Honor as I say I think it would be and I think an indictment which alleged specifically enough to inform the defendant of what he's being charged with that he carried paraphernalia to Nevada, or New Hampshire or whatever it may be in interstate commerce to be used in the manner in which you are suggesting not only he can be covered under other federal statutes of related statutes such as 1952, which is any travel in interstate commerce to in furtherance of an illegal business activity such as gambling.

So that I don't think we have problems where a legal state event is perverted to the use of illegal operators.

Chief Justice Earl Warren: Well, but this -- the indictment does say that he's carried these certificates into New York to be used and adapted, devised and designed for use in a wagering pool with respect to a sporting event.

Now, why wouldn't the Government be entitled to prove under an indictment of that kind that it was illegal?

Maybe it wasn't and the man would be acquitted.

Ms Betty D. Friedlander: The --

Chief Justice Earl Warren: Maybe he'd be convicted and it would have to be reversed because there was no evidence but under that allegation why couldn't, why couldn't the Government prove that this man did want to do that?

Ms Betty D. Friedlander: I would say that the Government couldn't prove it why.

Chief Justice Earl Warren: Well, that's your judgment but that's --

Ms Betty D. Friedlander: Yes Your Honor, because it's based on rules of procedure.

One, the Government couldn't prove it because they have failed to allege the conduct which makes out the crime.

And the requirement of the indictment is that you inform the defendant of the exact nature of the crime with which he's charged.

Two, when you are asked for a bill of particulars you must show the defendant the evidence which he is going to be called upon to prove.

Neither of which this indictment or this bill of particulars does.

Chief Justice Earl Warren: You didn't ask for that information on your request for a bill of particulars.

All you asked for was the records and documents.

Ms Betty D. Friedlander: And we asked if any violation of state law was being charged and the Government said that there was no violation of state law charged and of course what you're suggesting is a violation of --

Chief Justice Earl Warren: It would only be so --

Ms Betty D. Friedlander: -- New York law.

Chief Justice Earl Warren: It would only be so if this Act applied.

Ms Betty D. Friedlander: Well, that's the ultimate question, that's true.

Chief Justice Earl Warren: (Inaudible)

Ms Betty D. Friedlander: When we talk about what you have to prove --

Chief Justice Earl Warren: Yes.

Ms Betty D. Friedlander: I think the rules of indictments and proof of trial demand that the defense counsel and that the defendant be given an opportunity to know what he is going to be faced with.

Another requirement, another requirement for the bill of particulars to be specific and for the indictment is that the District Court may make a knowledgeable ruling on the sufficiency of the indictment or the construction of the statute as we have here.

In which case we would avoid multiple appeals such as if Your Honors' view prevails, we would be faced with.

The -- that's the reason why they have to allege this specifically.

Now I do not concede Your Honor that this indictment which charges that he carried New Hampshire sweepstakes in interstate commerce permits the Government without our rules of procedure and what we know is fair and what criminal procedure requires such as fundamental fairness.

I do not concede it permits the Government to show other wagering conduct.

This statute prohibits the trap -- the transportation in interstate commerce of proscribed wagering paraphernalia.

It says nothing about making a profit on the sale of it.

It says nothing about letting other people stay in New York and going to New Hampshire to do something.

It forbids the shipment of this paraphernalia and the crime is made out when you shipped it and nothing could be more clear than this indictment that that is what they charged as they claim in the statutory language.

Now to slip in and added subtlety, look we try -- we say that you're carrying this in interstate commerce but when you come to trial we're going to show that you actually were making money on this thing.

This -- this violates sense of fairness without any knowledge of criminal procedure.

It also is not consistent with the reading of the statute and what the indictment charges the defendant.

Chief Justice Earl Warren: But do I understand you then that to say that even if the Government showed that this man was taking these certificates into New York for the purpose of illegally conducting a brokerage in New York based upon this sweepstakes that there would be no crime?

Ms Betty D. Friedlander: They would not Your Honor because a brokerage or selling for profit is not a wagering pool and it is not a bookmaking and it is not numbers policy of the leader.

He may be -- this is a separate conduct which is not wagering pool.

Not the paraphernalia of wagering pools.

Chief Justice Earl Warren: Well, I don't want to take too much of your time but just one more question, is it then your position that the carrying of the -- taking these certificates into another state cannot be illegal regardless of the use that they're put to in the other state?

Ms Betty D. Friedlander: It is out position that the New Hampshire sweepstakes are not within the statute and that the mere carriage in interstate commerce of New Hampshire sweepstakes to be used in the New Hampshire event does not violate the statute if New Hampshire isn't within the statute.

And if you alleged that somebody is carrying New Hampshire sweepstakes to be used in the New Hampshire event.

I can only see that what else he does with it is irrelevant to that charge.

Now it may be another charged.

It may be 1952.

He may be conducting his own wagering pool with New Hampshire sweepstakes which is not to be use in a wager -- New Hampshire wagering event but to be used in his own wagering pool.

You see the New Hampshire event in that case would be the mechanism or his trappings whereby he carries really his own wagering pool.

So I do not feel that selling for profit is what this statute was getting at.

It carrying -- proscribed wagering paraphernalia and New Hampshire as our view is definitely not within the statute.

Chief Justice Earl Warren: And is -- it is your position that it is within the statute because it is illegal -- of legal advance in New Hampshire and that therefore the statute does not apply to New Hampshire at all?

Ms Betty D. Friedlander: That --

Chief Justice Earl Warren: (Inaudible)

Ms Betty D. Friedlander: But more than being legal in New Hampshire it is conducted by the State of New Hampshire.

It is conducted by a sovereign state of the United States and that Congress had no intent to impeach this (Voice Overlap) --

Chief Justice Earl Warren: Well, do you get down to the question then that under no circumstances whether its in organized crime or not that the person in the position of Mr. Fabrizio is in that under no circumstances can this statute be applied to the sweepstakes of New Hampshire because it is legal in New Hampshire and New Hampshire is one of the sovereign states, is that your position?

Ms Betty D. Friedlander: Your Honor I believe that it doesn't state our position exclusively.

We say that under the facts as Mr. Fabrizio is alleged to be doing that this private gain on the New Hampshire sweepstakes does not violate the indictment which he is faced with.

Now you -- you can -- can see as I've said, you can misuse the New Hampshire event under 1953.

You are only covering the transportation in interstate commerce of wagering paraphernalia, wagering paraphernalia to carry on a prohibited activity.

That's all the statute covers.

Now we say that if you carry on -- if you transmit New Hampshire sweepstakes which are going to be used in the New Hampshire event not in any other private wagering pool or any other gambling conduct within the statute then it's not covered.

The statute doesn't cover selling for profit, the carry -- the statute only covers shipment of gambling paraphernalia, that's the basic purpose of it.

They did not want organized racketeers to take both shipments of things that where with all to carry on their activities and ship it in interstate commerce which they were doing.

That's what this specific purpose of this statute, that's all it covers.

Now there's another statute, there's 1952 and there Congress said, "Look, we know that you've traveled in interstate commerce and you are carrying on your illegal gambling activities."

"It may be you're making a profit on the sale of a New Hampshire event or you may be doing all kinds of illegal gambling activity."

"When you travel in interstate commerce to carry on your own illegal gambling activity, 1952 would apply."

But I do not believe that there is any cause to expand what 1953 was designed to cover which was just the shipment of paraphernalia.

And that was all it was designed to cover merely because the other conduct is illegal which is a familiar principle.

It sounds as if we want to punish him for it but this particular statute was not meant to be used for this purpose.

Chief Justice Earl Warren: And I suppose then the same reasoning it would not apply to the Irish sweepstakes or to the Puerto Rico sweepstakes or the sweepstakes of any foreign country that wanted to come in here in that manner if, if there, the sweepstakes was legal at home?

Ms Betty D. Friedlander: Oh, Your Honor I -- we do not take that position.

Chief Justice Earl Warren: What is the difference between the Puerto Rican sweepstakes and this one?

Ms Betty D. Friedlander: There is a difference between the state and the union and a -- the Commonwealth of Puerto Rico.

There's a difference between the deference which one state owes to another state which are constitutionally requires deference to the laws of another state.

There is a built in system of behavior between states that we can rely on.

Now we can't rely on what another does for example New Hampshire, pardon me, Ireland is what I'm calling a renegade state.

I mean, they are soliciting the sale of Irish sweepstakes ticket in the United States.

Now, I -- we don't have to reach the point that we are saying Irish sweepstakes is all right, or the Tahiti sweepstakes is all right.

We are only saying that when a state, a sovereign state conducts its own legal sweepstakes that congress did not intent to reach that conduct.

The point --

Chief Justice Earl Warren: You put that on Tenth Amendment?

Ms Betty D. Friedlander: Pardon?

Chief Justice Earl Warren: You put that on the Tenth Amendment?

Ms Betty D. Friedlander: Well this would be one objection if Congress did intend to reach that conduct but I think it's not required that we get to any constitutional principle for it.

They simply were very cautious about not getting in to this as in the exemptions, the patterns of exemptions show.

So when Congress -- when we talked about --

Justice John M. Harlan: Do you question the, oyu aren't questioning (Inaudible) -- in that situation?

Ms Betty D. Friedlander: I do not Your Honor, that's the point I wish to make.

I think Congress could have the power.

Justice John M. Harlan: I thought you have said (Inaudible)?

Ms Betty D. Friedlander: I think Congress could stop all gambling if it wished to do but this was a sophisticated Congress.

We're not talking about 1895, if the Government is doing about a moralizing Congress which was trying to legislate against gambling.

We're talking about sophisticated people at the time of the package of -- within very recent times, New York, the highest court of the State of New York has stated in their -- by a judge of the court in its opinion.

We do not hold a gambling such as the Irish sweepstakes and the New Hampshire event to be proscribed and the Irish sweepstakes are illegal.

Yet it is a sophisticated attitude that we took to gambling.

But of course there's no sophisticated attitude that one would take to organize racketeering.

Brief time I just want to point out to you that the words of the statute are very clear.

They're address to numbers, they're addressed to policy, illegal bookmaking and the wagering pools which are not as the Government suggest a wagering pool of the sovereign state with the trappings of the pari-mutuel race track and all the aura of legality and commonly participated in fun.

They're talking about the kind of gambling where you go into the back room and where you bet illegally and everybody who does this knows he is doing something illegal and you'd --

Justice John M. Harlan: What part of the legislative history do you find to --

Ms Betty D. Friedlander: Would Your Honor, the --

Justice John M. Harlan: -- its your view that organized crime is all that we stated/

Ms Betty D. Friedlander: Oh, we have prepared an appendix for our brief which is replete with the quotations from the hearings both in the Senate and in the House and I have prepared just a very brief little list here of the kinds of words which are a total -- saturation one might say of the legislative hearings.

Hoodlums, racketeers, syndicates, numbers rackets, number sellers, flash paper, lets keep step with the criminal element, huge profits in traffic, liquor, narcotics, prostitution, kingpins, (Inaudible), henchmen, underlings, messengers.

This is the kind of things --

Chief Justice Earl Warren: They use gambling in any place?

Ms Betty D. Friedlander: They use gambling qualified always by this long exhaustive list of operators.

Now --

Justice William J. Brennan: Well may I ask you Mrs. Friedlander, do I gather that in your emphasis on the fact that this is a state operator totally, do you suggest that you don't have to reach the question whether what happens in Nevada for example or as I understand that the operations while they're legal are not state operators?

Ms Betty D. Friedlander: That's exactly --

Justice William J. Brennan: -- that you don't -- you do not have to reach the question whether -- whether those operations go within or without this statute, is that it?

Ms Betty D. Friedlander: That's exactly point -- our disc -- the decision of this Court of Affirmance is a narrow thing.

It applies to an event conducted by a state.

It does not necessarily mean that Nevada (Voice Overlap) --

Justice William J. Brennan: And you -- and this argument I gather is that Congress never contemplated including other van as you have put it in your appendix, those are not -- that states or public authorities with those whether illegal or not, individuals engaged in gambling operation as calling within the prohibitions of this statute, is that it?

Ms Betty D. Friedlander: I'm sorry you Honor, I don't --

Justice William J. Brennan: That the Congress never contemplated that a state operator at a price like this or anything connected with it would come within the prohibitions of the statute.

Ms Betty D. Friedlander: I agree, I think --

Justice William J. Brennan: But there's nothing affirmative to it -- to suggest that --

Ms Betty D. Friedlander: There's nothing affirmative, the portions of New Hampshire as we have pointed out was none existence but I think it is inferable from the caution for the other state permitted conduct which was given deference in every statute passed at that time and also from the coverage which was totally concentrated on the illegal gambling --

Justice William J. Brennan: Now pari-mutuel as I gather are state regulated ordinarily, are they not?

Ms Betty D. Friedlander: They are Your Honor, they are regulate --

Justice William J. Brennan: And most of the -- and there's an expressed exception for the state regulated pari-mutuel.

Ms Betty D. Friedlander: Exactly.

Justice William J. Brennan: And you point to that as indicating that they simply never intended to include that when a state regulation pari-mutuel here -- state operation, is that it?

Ms Betty D. Friedlander: I think it's persuasive because of -- the pari-mutuel is where illegal in half the state and they still gave it total exemption.

Justice William J. Brennan: Well, I think you did concede that if in this instance, this New Hampshire paraphernalia had been taken into New York and some how used in a way which violated the laws of the State of New York that the statute might reach it but the -- by the answer of the bill of particulars that's out of the case since the Government does not suggest that this paraphernalia was used in any way which violated the laws of the State of New York or any other states.

Ms Betty D. Friedlander: Exactly by the bill of particulars in the indictment.

Chief Justice Earl Warren: Mr. Millimet.

Argument of Joseph A. Millimet

Mr. Joseph A. Millimet: Mr. Chief Justice, may it please the Court.

New Hampshire is here for the very reason that some of the questions from the bench have laid mainly because this indictment read as any ordinary person would read it could be applied to any tourist who travels to New Hampshire, buy sweepstakes tickets and takes the acknowledgments back with him.

The indictment does not raise the issues which the Government argues in its brief.

And unless I misread Borden and all the subsequent cases the Government cannot so construe the indictment here.

Now, the Government seems to take the positions that they can construe this indictment differently from the way it was necessarily construed by the District Court.

I don't understand the rule that way.

I understand that the only issue raised on an appeal under Section 3731 is whether or not the construction placed upon the statute by the District Court is correct and that this Court has said in its own opinions on numerous occasions that it will be bound by the construction placed on the indictment.

Now the only construction that could be placed on the indictment on this record is the construction which is a dumbgraded by the questions which had been asked here namely if the Government shows nothing more than this indictment alleges, is it a violation of the statute?

And this offends the State of New Hampshire because it would mean that the 2 or 3 million tourists who come to New Hampshire every year and who constitute the principal source of our revenue for this educational program would be subject to indictment under this statute and we don't believe that was the intention of Congress.

And we don't believe that the Government can take the position here that it does under the decided cases.

Justice John M. Harlan: (Inaudible)

Mr. Joseph A. Millimet: No sir, but I don't think that they should be subject to indictment if they had -- if they took them back to there home states with them because I do not believe that's what Congress intended.

Justice John M. Harlan: -- my question is (Inaudible) --

Mr. Joseph A. Millimet: I would have grave doubt about it, yes sir.

Then I will explain why.

I think that the sovereign State of New Hampshire has every right under the constitution to decide to raise funds for its legitimate governmental purposes within its own borders in any way it chooses so long as in doing so it does not offend the paramount powers of the federal constitution or violate the laws of its sister states.

It is our position here that the manner in which we have setup the operation of our sweepstakes satisfies both those requirements and I take it purely on a statutory analysis.

Section 1953 certainly purports to prohibit the carriage in interstate commerce of wagering paraphernalia which is in some way use, useful etcetera in the terms of the statute in various proscribed and very narrowly limited activities.

Now those particular activities, the legislative history shows are all activities which are concerned with crime and racketeering and other source of the principle bankroll for a crime in this country.

The only wagering pool with respect to a sporting event that the Government points its finger at in this case below, on appeal and the brief on oral argument is the New Hampshire sweepstakes.

They don't point at any other wagering pool as Mrs. Friedlander said in her argument.

Even what they're saying about Mr. Fabrizio which I think they have no right to say here, in what they're saying about him doesn't create a wagering pool with respect to a sporting event.

The only wagering pool with respect to a sporting event that the Government is talking about is the New Hampshire sweepstakes.

Now the paraphernalia, there must be something to give Congress power and they purported to act on the interstate commerce power to give Congress power in this situation.

They have to show that the wagering pool, that the paraphernalia which is carried in interstate commerce is in some way a part of it, operative part of the wagering pool in such a way that its carried in interstate commerce is within the commerce control power of Congress or that it offends the laws of some other state.

Now that hasn't been shown here and we believe that at least so far as Congress is concern and the commerce power is concern it couldn't be shown.

Because these acknowledgements of purchase, once they get into the hands of the consumer are no longer paraphernalia.

Paraphernalia is the means by which a wagering pool is conducted, that's what Congress was aiming at.

Chief Justice Earl Warren: What do you give them, to the purchaser for, they have no value, no importance?

Mr. Joseph A. Millimet: That's an excellent question Mr. Chief Justice.

Chief Justice Earl Warren: I thought it would be.

Mr. Joseph A. Millimet: Thats -- and I would say frankly to this Court that we give it to the people be -- for psychological reasons.

We give it to the people because it's a souvenir.

It's a memento, its something.

It's a piece of paper they can look at after they pay their $3.

That's the only reason we give it to them.

It has no function whatsoever.

We have operated our sweepstakes program now on three successive years.

We have never required anybody to produce this piece of paper.

It is not a part of the wagering apparatus once it passes to the consumer's hands so far as this statute is concern.

Justice William J. Brennan: Oh, is that the -- suggest that if you don't prevail here that you'll discontinue its use and just go on with the sweepstakes, do you?

Mr. Joseph A. Millimet: Well I'm sorry sir, but I don't control the legislature.

I was legislative counsel for the Governor but I don't control the legislature of New Hampshire and I really cannot answer that question fairly.

Justice William J. Brennan: (Voice Overlap), it is -- it is possible isn't it to visualize these set of facts under which these acknowledgements would be paraphernalia of a gambling pool, for example, suppose Mr. Fabrizio entered into an arrangement with a lot of 75 people which they -- Mr. Fabrizio is delegated to go to New Hampshire and buy 75 tickets.

He brings back and the -- and it -- there he puts various names on them or suppose he signs his name as trustee or agent for the betting pool.

Suppose he says Fabrizio, agent for the betting pool and he brings back those acknowledgements into New York state, he deposits some in a safe place and all this people have shares in that pool.

Now there it seems to me that's quite -- it'd be possible that United States or it framed the indictment could indict Fabrizio under this statute.

Say, that he used the acknowledgements as paraphernalia for betting a pool.

Mr. Joseph A. Millimet: I agree wholeheartedly --

Justice Abe Fortas: I take it that the point that you and Mrs. Friedlander is making is that that is not the construction of the statute that the Government is serving up to this Court for decision in this case.

Mr. Joseph A. Millimet: I couldn't state it as plainly myself Your Honor, yes sir.

Then they would be pointing at a wagering pool in the State of New York which would be in fact be illegal and would be in fact be within the terms of this statute and --

Justice Abe Fortas: And the acknowledgements would be paraphernalia to that pool.

Mr. Joseph A. Millimet: They would indeed sir.

And that is a perfectly permissible use of the statute but that is not this indictment.

And it is not even the construction of this indictment which the Government seeks to place on it now in this Court.

Justice Hugo L. Black: If they do not have anything to do with wagering, what do they have to do with?

Mr. Joseph A. Millimet: I would not say sir that they do not have anything to do with wagering.

Certainly the acknowledgements have something to do with wagering but --

Justice Hugo L. Black: Why do you want it?

Mr. Joseph A. Millimet: We want it because we wanted to give something to the customer.

Justice Hugo L. Black: You couldn't sell it as well, could you?

Mr. Joseph A. Millimet: Probably not.

Justice William J. Brennan: Well, more that probably I don't think I'd go to New Hampshire and put $6 in your machine and not have something to show that I put $6 in your machine I might say.

Mr. Joseph A. Millimet: The reason for that Your Honor is that you're a law abiding citizen.

Justice William J. Brennan: Oh, no it isn't.

Mr. Joseph A. Millimet: The people --

Justice William J. Brennan: I just -- the reason for that is I want to have something to show that I put $6.00 into your machine.

Mr. Joseph A. Millimet: I think a -- I think I can only say Your Honor that millions of dollars are wagered everyday with bookmakers and people have nothing to show for it.

I think the difference between persons who bet with bookmakers and persons who buy the New Hampshire sweepstakes tickets is that we appeal to the ordinary tourist.

That's what the program is aimed at.

That's the way we set it up.

That's why we give the ordinary tourist something to look at and we don't think that Congress intended to make the ordinary tourist a criminal.

Thus the Government it --

Justice Hugo L. Black: (Voice Overlap) carry on your wagering business, is that it?

Mr. Joseph A. Millimet: It helps it, yes sir.

Justice Hugo L. Black: It's a part of the scheme?

Mr. Joseph A. Millimet: Its certainly is sir.

Justice Hugo L. Black: Part of the plan to give them these things?

Mr. Joseph A. Millimet: Yes it is sir.

Justice Hugo L. Black: (Inaudible)

Mr. Joseph A. Millimet: Yes it is.

Justice Hugo L. Black: Connection was operating a wagering plan by the state to make money of it.

Mr. Joseph A. Millimet: Yes sir.

And there's no indication that the Congress intended to prevent us from doing that and the Government doesn't claim and has never claimed that the State of New Hampshire doesn't have every right in the world to operate the sweepstakes program exactly the way we operate it.

Every --

Justice Hugo L. Black: Alright, they're claiming the judgment, yes.

You say the Government doesn't -- haven't tried to stop it.

Mr. Joseph A. Millimet: And --

Justice Hugo L. Black: What they say they're trying to do.

Mr. Joseph A. Millimet: No, the Government isn't trying to stop it.

The Government claims that they're trying to stop somebody from latching onto it and --

Justice Hugo L. Black: And they finally indict you, have indicted you as they claim for violating this rule by using these things.

Mr. Joseph A. Millimet: Oh, no sir, I'm sorry sir.

The Government doesn't claim that the State of New Hampshire is doing anything improper.

The Government never has claimed that the State of New Hampshire is doing anything improper.

Justice Hugo L. Black: They wouldn't have to do anything improper would it, if it's a part of its scheme and plan and the Government says you can't do this, this way.

Mr. Joseph A. Millimet: The Government has never said we can't do this, this way.

They don't say it here sir.

Chief Justice Earl Warren: Well the Government is under indictment either.

Mr. Joseph A. Millimet: The State of New Hampshire is not under indictment in any way.

Chief Justice Earl Warren: No, I mean the Government of New Hampshire is not under indictment.

Mr. Joseph A. Millimet: No, no.

Chief Justice Earl Warren: Well, then let me ask you, is you position exactly the same as Mrs. Friedlander who represent the defendant?

Mr. Joseph A. Millimet: Well, our position -- because we represent the state is a little bit different in that we are concerned, it -- in essence it comes to the same thing, yes sir, I would say that quickly.

But we are concerned that reading this indictment and if this indictment were upheld under the narrow rules of appeals under Section 3731, every tourist who come to New Hampshire will happen to put one of our acknowledgement, is in his pocket would be in jeopardy and we don't think that's what the statute meant.

We say that the statute was never intended for that.

I'd like to say something about the Government's point here that this statute is in some way an extension or an amendment of Section 1301 which we admit applies to the New Hampshire program.

Section 1301 was enacted in 1895 because the State of Louisiana was flooding the United States with tickets, sweepstakes -- not sweepstakes ticket, lottery tickets which could be bought and sold and battered all over the country and it -- the statute admittedly applies to our operation and the reason, the reason why we originally device this particular piece of paper, as an answer to you Mr. Justice Black's question, the reason why we devise this particular piece of paper and put on it this acknowledgement is not necessary to present for a prize and so forth was that we know that Section 1301 applied to us and we didn't want our tourist purchasers to be returning to their homes with pieces of paper which plainly would violate Section 1301.

That's the reason why we made the acknowledgement up in the form that we made it up.

Justice John M. Harlan: (Inaudible)

Mr. Joseph A. Millimet: 1301 is a statute which is designed particularly to prohibit lotteries.

Chief Justice Earl Warren: We'll recess now.

Mr. Joseph A. Millimet: I thank you Mr. Justice.

Chief Justice Earl Warren: (Inaudible)

Mr. Joseph A. Millimet: Thank you Your Honor.

Just before the noon recess, there was a question concerning the relationship between Section 1301 of Title 18 and Section1953 under which indictment is brought.

Now the Government in its brief and implicitly in its argument here seems to take the position that 1953 is just an extension of 1301 and that since the State of New Hampshire admits that Section 1301 applies to the New Hampshire sweepstakes, therefore 1953 applies.

I'd like to suggest that nothing could be farther from the truth.

The legislative history of course demonstrates that 1953 was concerned with an entirely differently problem.

This has been briefed at some length in our brief.

We point out that the Louisiana lottery against which 1301 was specifically directed was flooding the country with thousands and thousands of sweepstakes -- lottery tickets.

But quite aside from that I'd like to bring to the attention to the court the fact that as far as 1301 is concern and as far as 1953 also is concern the State of New Hampshire could run a lottery and give out pieces of paper equivalent to its acknowledgements here and the Government would not contend and could not contend that it was covered by 1953.

1953 was tailor made for the specific type of organized gambling activity that the Justice Department was aiming at.

And it is required as the Government admits in its argument that one of the elements which must be shown is that there is a piece of paraphernalia associated with a wagering pool with respect to a sporting event.

Now an ordinary lottery doesn't involving -- doesn't involve a sporting event at all.

So that if we were running an ordinary lottery we wouldn't be here, there wouldn't be any problem under the Government's own position and for them to say that 1953 is simply an amendment or an extension of 1301.

Its completely at variance not only with the legislative history but also with any fair analysis of the statute.

Now the other --

Justice William J. Brennan: May I ask, did I misunderstand Mr. Chapman, I thought he said this as reference to which you're saying before lunch that each of your 2-3 million tourists might be subject to prosecution under the statute merely form carrying back one of these acknowledgements to take home state?

I thought I heard Mr. Chapman say, did I not, that statute would not reach your tourist?

Mr. Joseph A. Millimet: The first time he answered the question, he said it would.

And the second time he answered the question, I think he said he would have to show something more.

And I think the difficulty is that Mr. Fabrizio in this record is a tourist and that's why I think the Government answers the question both ways.

We -- of course we say that it doesn't reach anybody in the position of a tourist and on this record Mr. Fabrizio is a tourist.

I would like to say also that New Hampshire went to a great deal of difficulty and a great deal of trouble to structure its sweepstakes program in such a way that not only would we not offend the federal law but we would not offend the state laws.

We went out of our way to avoid the problem that existed in the Louisiana lottery and that exist today if I may say so, in the Irish sweepstakes which is an abomination to the -- to this statute.

The Irish sweepstakes violates this statute everyday of the week.

Two weeks ago when this case was scheduled for argument there were four thousand names printed in the Boston press of persons who won prizes in the Irish sweepstakes and everyone of those persons violated -- acquired the sweepstakes tickets illegally because an article in Fortune this month, the November Fortune points out, the Irish sweepstakes has a systematic way of violating the statute of the states and the Federal Government this nation and yet they don't get prosecuted.

Now naturally the State of New Hampshire was offended at this situation.

We have gone to great lengths to avoid that very problem.

We do not ship in interstate commerce.

We do not release to any one a single blank ticket that can be taken elsewhere and sold.

We do not ship books of tickets in interstate commerce, that's wagering paraphernalia within the meaning of this statute.

If we were to release books of tickets in our liquor stores and let people come there and buy them and return the counter foils the way they do with the Irish sweepstakes, we'd sell millions and millions of dollars of these tickets.

The State of New Hampshire would run its whole education program with the proceeds because the Irish sweepstakes take 30 millions of dollars out of the United States every year by doing just that, but that is a violation is Section 1953.

That would be shipping in interstate commerce, carrying in interstate commerce.

Justice William J. Brennan: That's because they sell the ticket itself in a state in violation of state laws?

Mr. Joseph A. Millimet: It's because they permit their transportation in interstate commerce sir of paraphernalia which is an intrical operative part of a wagering pool with respect to a sporting event.

Our --

Justice William J. Brennan: But it's the actual ticket, that's the paraphernalia?

Mr. Joseph A. Millimet: It's -- the actual ticket sir or any -- it's more than the tickets, it's the books of tickets, it's the counter foil, it's the devices by which their sweepstakes is carry on.

The devices by which our sweepstakes is carried on never leave the State of New Hampshire and that's why we only sell $6 million worth at our best year.

That's why -- because we have to depend upon tourism to get -- to get the customers and it's because we have exercised this kind of restraint that we feel that the Government is in error in bringing this indictment.

Justice Potter Stewart: Mr. Millimet, getting back to the statutory language, I had understood that the critical words for interpretation here were, what -- it was the phrase, wagering pools with respect to a sporting event.

Mrs. Friedlander I think had directed herself to that phrase and said that the New Hampshire sweepstakes properly considered was not within that statutory definition, wagering pools with respect to a sporting event because it was a state adopted operation and as I understand you now, you're directing our intention rather to another part of the statute that is, any record, paraphernalia, tickets, certificate, bills, slip, token, paper, writing or other device used or to be used or adapted device or designed for use in.

My -- do I understand you correctly or not?

Mr. Joseph A. Millimet: You understand me correctly but I certainly support everything which Mrs. Friedlander had said.

I think there are dual grounds why this statute does not apply in this case.

The statute doesn't apply to the New Hampshire operation at all in the abstract for the reasons Mrs. Friedlander gives.

The statute does not apply to the New Hampshire operation as structured that is to say as it is described in the record here for the reason that I give in addition to the reasons that Mrs. Friedlander --

Justice Potter Stewart: Well, now certainly this is a paper or a writing, isn't it?

Mr. Joseph A. Millimet: Yes.

Justice Potter Stewart: This acknowledgement.

Mr. Joseph A. Millimet: Yes sir.

Justice Potter Stewart: And certainly it is used in the New Hampshire sweepstakes, isn't it?

Mr. Joseph A. Millimet: Yes sir.

Justice Potter Stewart: Well then why isn't it within the statutory rule?

Mr. Joseph A. Millimet: Because the statute merely proscribes carriage of the paraphernalia in interstate commerce in connection with the wagering pool and the wagering pool so far as the wagering pool is concern its all in the State of New Hampshire and the person -- this is why the tourist is not covered, he is not carrying paraphernalia.

Justice Potter Stewart: But he's carrying a paper or a writing (Voice Overlap) --

Mr. Joseph A. Millimet: Carrying a piece of paper, yes he is.

Justice Potter Stewart: And it's a paper that's used in the New Hampshire sweepstakes, isn't it?

Mr. Joseph A. Millimet: Yes sir, but that is not what the statute -- the -- as this Court has said on several occasions, the meaning of words is largely determined by the purpose of Congress.

And it is our position in the brief and here that the purpose of Congress was to reach the person and the paraphernalia which was being circulated in interstate commerce for the purpose of carrying on wagering pools with respect to sporting events as those things are understood in the manner Mrs. Friedlander described them, illegal operations, football pools, the typical thing as a football pool.

There's even some doubt in my mind whether this is a wagering pool with respect to a sporting event within the meaning of the statute.

We don't have to come to that because of these other reasons.

Justice Potter Stewart: Do you mean even if it were privately operated?

There would be some doubt in your mind?

Mr. Joseph A. Millimet: Yes, there would be some doubt in my mind because typically a wagering pool that they're talking about in the history here is the football pool where you have some elements of choice and so on.

Whereas this statute does not apply to ordinary lotteries as I said before plainly doesn't apply to ordinary lotteries.

It apples to number, and it applies to (Inaudible) but those things as shown in the testimony of Mr. Miller takes 351 of the House hearings are specified things.

They're terms of art, they're known to the underworld, they're known to the Justice Department and they're specific things.

All of the things enumerated in this statute are specific things and we don't believe that the New Hampshire sweepstakes comes within by any analysis of this statute.

But as I say, we don't feel we have to come to that because of the two reasons that we give, that it was certainly not the intent of Congress to apply this particular statute to a lawful operation.

And I'd like to say in that case --

Chief Justice Earl Warren: May I ask you before you change the subject that your great concern is whether this 2 or 3 million visitors who come to your state are precluded from buying your tickets because of the danger of their being arrested if -- by the Government if they carry the certificate back?

Mr. Joseph A. Millimet: Yes sir.

Chief Justice Earl Warren: Now, suppose we were to agree with you that the statute does not apply to that kind of a situation, would the -- would the State of New Hampshire have any great concern then?

Mr. Joseph A. Millimet: Well, we are also concern that people who -- we -- people who purchase tickets for others should be permitted to take them back.

We have a program in New Hampshire whereby we invite people to purchase sweepstakes ticket as presents for their friends and relatives and neighbors.

And we would be greatly concerned if they were not permitted to do so.

Chief Justice Earl Warren: And may be for their clients to.

Mr. Joseph A. Millimet: We would have no objection to their buying them for their clients.

Chief Justice Earl Warren: And it -- does it, what I mean, that you would like to spread it like you say the Irish sweepstakes do.

You'd like to have a set up in every state where the -- where these things can be sold for what they're worth.

I mean, it might not be worth anything to you but they -- they will -- they'll be worth a lot to the people who were buying from a broker in another state if their number happened to come up.

Mr. Joseph A. Millimet: No we --

Chief Justice Earl Warren: You'd like to say those are established all over the country to finance the State of New Hampshire.

Mr. Joseph A. Millimet: No sir, we have never intended our program to operate in that manner.

We do not seek -- we do not have that ambition and we think that it would be utterly improper under the laws of about 37 to 40 of the respective states and that is not what we seek Your Honor.

Chief Justice Earl Warren: What if --

Mr. Joseph A. Millimet: We simply seek that --

Chief Justice Earl Warren: (Voice Overlap) it seems to me that it'd be very simple if that's -- if this is all that's involved in it and the certificate means absolutely nothing to the State of New Hampshire or to the operation that is in question here, you just abandon that and that -- and the -- do it all in the State of New Hampshire and get away from this problem.

Mr. Joseph A. Millimet: Well we don't think the problem exists.

It didn't exist until the Government brought this case and if I may say so Your Honor we don't think that's a practical way to run a sweepstakes operation.

We simply --

Justice William J. Brennan: Because that -- because the certificate does have some use --

Mr. Joseph A. Millimet: Of course it does.

Justice William J. Brennan: -- in connection with the (Voice Overlap) --

Mr. Joseph A. Millimet: (Inaudible)

Of course it does Your Honor.

As I said it's a psychological thing you have meet --

Justice William J. Brennan: Tell me if somebody is -- I think Mr. Chapman told us did he not that efforts have been made to have express -- amendments expressly excluding the New Hampshire sweepstakes.

Was it this statute that you're talking about?

Mr. Joseph A. Millimet: That -- well, there, the tax, we were excuse from the wagering tax --

Justice William J. Brennan: Yes.

Mr. Joseph A. Millimet: -- which as you know is also regulatory.

Justice William J. Brennan: Yes.

Mr. Joseph A. Millimet: There was a bill introduced to permit us to use the mails which is something else.

Justice William J. Brennan: Oh yes.

Mr. Joseph A. Millimet: Not -- the bill is not directed to Section 1953 --

Justice William J. Brennan: Never has been a proposal of that kind.

Mr. Joseph A. Millimet: There has been a proposal of that kind.

Justice William J. Brennan: There has been?

Mr. Joseph A. Millimet: In the Congress to permit -- that there's been a number of proposals to have national lotteries in the --

Justice William J. Brennan: No, but I'm speaking of exceptions --

Mr. Joseph A. Millimet: There has been --

Justice William J. Brennan: -- in favor of the New Hampshire sweepstakes.

Mr. Joseph A. Millimet: There has been a proposal.

It was introduced.

It's never been heard in committee.

Justice William J. Brennan: Did the state sponsor those?

Mr. Joseph A. Millimet: It has -- it was introduced by one of our Senators but it has not been --

Justice Abe Fortas: When was that proposal?

What was that proposal?

Mr. Joseph A. Millimet: The proposal was to exempt state operated -- the sweepstakes programs from the limitations of Section 1302.

Justice Abe Fortas: As to the mails used in the --

Mr. Joseph A. Millimet: Yes sir, it's as to the mails.

Justice Abe Fortas: Only, not as to this?

Not to exempt New Hampshire from the stroke of this Section?

Mr. Joseph A. Millimet: No, we never thought it applied.

We've taken this position consistently with the Justice Department from the day the Bill was signed that 1953 didn't apply to the New Hampshire sweepstakes program.

And I'd simply like to close by saying that there is an enormous difference between a state operated program such as ours where by everything that has to be done has to be done within the State of New Hampshire and any other kind of lottery or sweepstakes in the history of the United States.

We have adopted out program to what has happened to the United States.

We are simply doing -- we are simply selling tickets to people who move about, the mobility of our population.

We're not sending tickets into other states, we're just relying on the fact that there are 2 or 3 million tourist who come to the state and its just like for that matter just like a pari-mutuel program but I might say much less, much more innocuous.

It's a simple thing.

You buy a $3 ticket you don't go to the window and from a moral point of view and bet and bet and double your bet and seek to get your money back.

It's a simple innocuous thing based on the circumstances of our society.

That's all it is and we have not in any way flooded the county.

Justice William J. Brennan: No limit on the number of tickets one may buy?

Mr. Joseph A. Millimet: Yes sir.

There's a limit, you can -- have to go to a special place to buy more than 10 and we keep tracks of the names of people who buy more that 10.

We make them fill out a form so that if any body undertakes the setup an illegal operation, we will have the evidence.

And we have cooperated with the Justice Department in prosecuting two persons who sought to setup a sales agency in the State of New Hampshire to the use of the mail.

We've done everything we can in that --

Chief Justice Earl Warren: But how about outside of the state?

Do you care how many they buy if they're are outside the state?

Mr. Joseph A. Millimet: We -- we'd certainly do.

No one can buy anything from the State of New Hampshire except inside the state.

Chief Justice Earl Warren: I know but in -- I mean is there anything in this form that they fill out that they live outside of the state that would restrict them as to the numbers they can buy and do you regulate that to see that they don't buy more than would be reasonable in buying for friends or neighbors or family?

Mr. Joseph A. Millimet: We have no rule about how many they can buy but we make them identify themselves.

In other words --

Chief Justice Earl Warren: (Voice Overlap)

Mr. Joseph A. Millimet: -- they can't just put down a 100 different names not their own.

We make them put down their own name when they buy tickets in bulk so we know who they are.

And if they come back time after time doing this we will know that their violating or at least we would think that there are violating are own statute which prohibits the making of a profit on the purchase and sale of our tickets and we have a system for doing that, yes sir.

Chief Justice Earl Warren: Mr. Chapman, I'd like to tell you your time is up but I'd like to ask you one question as I -- has to repeat the question of Mr. Justice Brennan about whether one person who bought a ticket or two tickets and so forth would then -- and left the state with these certificates would be under the Act whether it would, are you -- or counsels reply, --

Rebuttal of Jerome I. Chapman

Mr. Jerome I. Chapman: Yes.

Chief Justice Earl Warren: -- will you try to straight this out by -- and give us one answer to that.

Mr. Jerome I. Chapman: I would do the best I can.

There's been some confusion here to which I have contributed to largely.

Between facts that can be proven and what the statute requires as a matter of law.

I think it is perfectly clear and indeed I think we all have used the same phrase that an indictment charges an offense under Section 1953.

If it alleges that a person knowingly carries in interstate commerce certain paraphernalia to be used in a wagering pool with respect to a sporting event.

Now, it is our view and this was what I attempted to state and answer to your early question Mr. Justice Fortas.

That it is a question of fact whether any particular piece of paper or any particular piece of paraphernalia is to be used in a wagering pool and there may be some dispute as there has been this morning as to whether just on its face this acknowledgement necessarily has a use in the wagering pool or whether more facts must be develop to prove that use.

Now, I -- when I answered Mr. Justice Fortas' earlier question by saying the tourist who goes in would not violate the statute, I was doing it on the assumption that as to him we could not prove as a matter of fact that it has a use.

I may be wrong in that assumption but I don't think that that's?

I don't think that's a material here.

Justice Abe Fortas: I don't think -- I don't think its quite it.

Question is, does it have to -- let me kind of put it this way.

Does the indictment have to charge, that's number one or number two on your favor, does the evidence have to show that there is a wagering use or purpose in addition to the fact that this paper serves a (Inaudible) however slight in the New Hampshire sweepstakes?

Mr. Jerome I. Chapman: No to either one or to two.

Justice Abe Fortas: So the -- no, okay.

So that that means that a tourist who goes to New Hampshire and buys and puts down his $3 or whatever it is gets an acknowledgement, puts it in his pocket, goes back to New York can be indicted and prosecuted under the statute?

Mr. Jerome I. Chapman: Yes that is correct, but I think --

Justice William J. Brennan: (Inaudible)

Mr. Jerome I. Chapman: -- but two qualifications should be put forth.

One, of course they're still at the question -- they're still at this essential factual question whether this acknowledgement was used in that particular -- did have a use in the New Hampshire sweepstakes, that's the question of fact.

Justice Abe Fortas: No, no, no.

You just take the acknowledgement as it is --

Mr. Jerome I. Chapman: Yes.

Justice Abe Fortas: -- for what it is in New Hampshire.

Mr. Jerome I. Chapman: Yes.

Justice Abe Fortas: And my questions stands in your -- in another (Voice Overlap) --

Mr. Jerome I. Chapman: Right, but the answer is, the answer is yes that an indictment drafted in those terms could be brought against that individual.

I would -- then there's -- I still think and I'm -- and there's some log ahead as to whether we can prove our case.

But there's another point that is made in the brief that is quite relevant here.

And that is the -- although -- naturally it doesn't go directly to the interpretation of the statute.

The Department of Justice has been on the record since the -- not only after the in -- after the enactment of this statute but in the legislative hearings on the statute that although the statute would be broad enough to cover that situation or the person who carries the numbers ticket that those persons would not be prosecuted as a matter of prosecutorial question --

Justice Abe Fortas: That's totally irrelevant, isn't it?

Mr. Jerome I. Chapman: As far as the meaning of the statute is concerned as I indicated I believe that's correct.I think the point should be made.

I think that --

Justice Abe Fortas: I beg to differ with you but I guess that's irrelevant too.

Mr. Jerome I. Chapman: Well -- this is of course the fact but also as I try to indicate for the fact that border line cases may arise under this quite broad statute.

In a way, takes away from the meaning but then I would like to read --

Justice Abe Fortas: Why then -- why didn't -- why does this indictment say something more when Mr. Fabrizio is not a tourist and if he is engaged in running a pool inside of New York State or buying this for somebody else.

The only reason that it wasn't cited in the indictment that I can say is to order to make the case easier to prove.

Is there any other reason --

Mr. Jerome I. Chapman: The reason is they --

Justice Abe Fortas: -- for not stating the more conservative view of the statute, more conservative theory of the statute in an indictment if the facts spit the more conservative view except to facilitate proof?

Mr. Jerome I. Chapman: I don't think that -- with two differences, Justice Fortas.

I don't believe that analysis is applicable here.

The indictment was written the way it is written because the statute is written the way it is written.

The only wagering pool that we have involved here and we will say that we have no proof that Mr. Fabrizio himself was setting up a different pool, the wagering pool with respect to a sporting event involved in this case on its fact with the New Hampshire sweepstakes.

And the allegation is that the defendant, Mr. Fabrizio, is carrying paraphernalia to be used in that pool.

This meets the -- these meets the terms of the statute completely and the reason that nothing more was said was the Government's view that nothing more need be said.

Seems to be contended, well it is indeed contended by appellee that one thing more has to be said.

We have to say illegal wagering pool with respect to a sporting event or some other wagering pool than the New Hampshire sweepstakes.

This issue which the central legal issue presented in this case has been debated and I think we have indicated that this -- the Congress intended wagering pool with respect to a sporting event to mean any wagering pool with respect to a sporting event, the Irish sweepstakes was mentioned expressly in the statute as being an example of a wagering pool with respect to a sporting event.

New Hampshire sweepstakes so far as the way the connection with sporting event is concern is the same.

May I make two statements --

Justice Hugo L. Black: May I ask you one question with reference to my Brother Fortas' question?

Mr. Jerome I. Chapman: Yes sir.

Justice Hugo L. Black: He asked you if 1/3 bought one ticket, would it make any difference whether 200 or the 1/3 bought 200 tickets and took them out?

Mr. Jerome I. Chapman: Well, I can say this is in terms of what was in the mind of Congress when they enacted the statute.

It was a proliferation of gambling operations beyond the borders of a single state into the channels of interstate commerce that disturbed them.

I think that if the history of our society was that nobody was interested in buying tickets in other states, the sweepstakes Congress may have not been concerned that there was a problem and may not have passed the statute.

If I think what you're suggesting is that --

Justice Hugo L. Black: I wasn't suggesting I was asking.

Mr. Jerome I. Chapman: I understand.

I -- well, I think what you suggest -- what your question suggest to me is that -- is that realistically and this is something that Congress had in mind.

You can't think about the situation where other -- the de minimus situation where there's only going to be one potential violator involved.

There are numerous potential violators.

Indeed the 83% of the winners from out of state who have gained profit on the sweepstakes conceivably may have been involved in violations themselves, a certain part of it.

So it's not just -- just the case of one man with one ticket.

Chief Justice Earl Warren: Just a matter of curiosity, are there any prosecutions for violation of the same -- the same law under the Irish sweepstakes?

Mr. Jerome I. Chapman: I know of none -- person but --

Chief Justice Earl Warren: I wonder why.

Mr. Jerome I. Chapman: Well that's -- I'm afraid I'm not equipped to satisfy you on that particular --

Chief Justice Earl Warren: Because counsel just told us about how its publish in the papers that they're -- I think you 4,000 people in this country who are winners in a certain drawing of the Irish sweepstakes that must mean that there maybe millions of those things sold in this country by -- why wouldn't the Government be interested in that as well as in this drawing or lottery or sweepstakes of New Hampshire?

Mr. Jerome I. Chapman: I think it -- it is clear, it was made clear in the hearings on this case that the Government is interested in that.

Chief Justice Earl Warren: Then why didn't they--

Mr. Jerome I. Chapman: In the lotteries of

Chief Justice Earl Warren: --talk about it?

Mr. Jerome I. Chapman: Well, as I say I' m not prepared to say that -- and nothing happened.

I'm not -- I have no knowledge bearing on your --

Chief Justice Earl Warren: It's been going on for year long before the New Hampshire affair.

Mr. Jerome I. Chapman: Oh!

Oh, indeed, indeed, yes.

Chief Justice Earl Warren: This is very strange that it a -- have this one prosecution for a fellow with 75 tickets and the newspaper show that 4,000 winners in one drawing of the Irish sweepstakes in this (Inaudible) --

Mr. Jerome I. Chapman: Well --

Chief Justice Earl Warren: -- and no concern on the (Voice Overlap) --

Mr. Jerome I. Chapman: Mr. Chief Justice I don't mean and I hope I'm not leaving the impression that that there is no interest in that of the Government I just -- and I just do not have at hand the information to direct to that question.

I think it is -- so far as the direct question involved here, the meaning of this statute, there is no doubt in my mind and there was -- I'm convinced no doubt in the minds of the members of Congress, the statute was designed to cover Irish sweepstakes, other foreign country sweepstakes, other legal sweepstakes for example Puerto Rico just as well as New Hampshire sweepstakes.

Chief Justice Earl Warren: Would you mind sending us a little memorandum in the next day or so as to how many prosecutions there have been in -- by the Government in the last lets say in the last five years on Irish sweepstakes.

Mr. Jerome I. Chapman: I'll do my very best to provide that information --

Chief Justice Earl Warren: Oh, I don't think it's going to be that difficult to find out.

Mr. Jerome I. Chapman: And -- yes, I would, yes we shall provide that information.

I would submit of course that the absence of prosecutions of any number of violators of the statute doesn't read on --

Justice Hugo L. Black: Oh, no no --

Mr. Jerome I. Chapman: -- what the statute means.

Chief Justice Earl Warren: No, no, or would be interesting.

Mr. Jerome I. Chapman: Yes, let me -- may I -- may I in conclusion make the three points well I believe at least in my understanding of the operation --

Chief Justice Earl Warren: But you have to be very brief because your time is up and we have extended quite a bit.

Mr. Jerome I. Chapman: Well, yes, I under -- directing to the statements that Mr. Millimet made which I -- as I understand them are in -- are inaccurate.

Chief Justice Earl Warren: Alright state them briefly then.

Mr. Jerome I. Chapman: One, that you can only -- that the only way you can get more than 10 New Hampshire sweepstakes tickets is to go the commission and buy a bulk order.

I understand that that's not the case that the machines are only activated for 10 tickets sales at a time.

But if a person for example wanted to buy 20 tickets at a liquor store, he could do that by paying a clerk $30, writing out 10 tickets, returning to the clerk and paying 30 more dollars and writing out 20 more tickets that you don't have to buy -- that if you -- you can buy more than 10 other than by going in and registering with the commission.

Mr. Millimet also suggests that if what New Hampshire had was a lottery rather than a sweepstakes it wouldn't be covered by the Act.

Well, I think that that would be covered by the second, the lower down section of the Act which applies to numbers, policy and similar games that a lottery is similar to a numbers game and if the drawing based on the face -- on the number.

Thank you very much.

Chief Justice Earl Warren: Thank you, very well.

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