Cases by Issue - Travel Act

Perrin v. United States - Oral Argument, Part 2

Thu, 13 Sep 2012 22:03:52 +0000

Case:

Perrin v. United States

Media File:

78-959_19791003-argument-2

Related Transcript:

78-959_19791003-argument-2

Transcript:

Argument of Leonard B. Boudin

Mr. Leonard B. Boudin: Mr. Chief Justice and may it please the Court.

My reference when we ended to Judge Gurfein in the Brecht case had in mind his long history as a prosecutor of organized crime in the labor racketeering field and I give some weight as against some of these books that are mentioned by the Government to his statement that organized crime does not usually use commercial bribery as a component and he described that as an establishment crime.

But more important that what a judge --

Chief Justice Warren E. Burger: Where did Judge Gurfien do that?

Mr. Leonard B. Boudin: In Brecht, sir.

It's --

Chief Justice Warren E. Burger: In the Brecht case.

Mr. Leonard B. Boudin: It's in the Brecht case.

Justice William H. Rehnquist: Was that an essential element of the offense that we think judicial note of --

Mr. Leonard B. Boudin: That was not, Your Honor.

That -- it is not.

But the question is what did Congress intend and the Government says and we deny that organized crime, according to the legislative history, use commercial bribery.

Whereas as we have pointed out, the Government in its brief in -- in Nardello and view expressed by -- adopted by this Court in footnote 11, page 293 said, "Bribery has traditionally focused upon corrupt activities by public officials."

Now, if I may turn to the next principle upon which I rely, it is that of the common law definition assumed to be that of Congress.

I touched on it an answer to a question put by Justice Rehnquist and I want to leave that by simply referring this Court through its decisions in Turley and in Morissette, particularly to Mr. Justice Jackson's comment in Morissette that when Congress borrows terms of art, which are accumulated legal tradition meaning of centuries, it normally intends to adopt those views.

Turning next to the federal complex of statutes and state statutes, I treat them briefly because all they are, are guide posts and the significant aspect, if Congress looked at the state statutes and said, "What is considered bribery," significant aspects are in contrast in Nardello which again I will touch on more fully, there was a clear line of demarcation between the state statutes dealing with bribery and called bribery, although the name is not critical, it's the line of demarcation that's important and the state statutes dealing with commercial bribery of various variations.

And this line of demarcation is followed by the codifiers by those who prepare the American Law Institute people who prepared the penal -- model penal codes by the working papers of the Brown Commission.

And indeed, by the very legislation now pending before the Congress, the currently new code -- new criminal code in which a distinction is recognized as it is in the textbooks like Perkins and others to which the Government refers between crimes against sovereignty and crimes against property.

I have in our brief delineated the examples of that.

Now, I want (Voice Overlap) -- I'm sorry Your Honor.

Justice John Paul Stevens: Mr. Boudin in -- a clear differentiation not within this, the complex of state statutes and which side of the line would a statute prohibiting the bribery of an -- professional athlete fall?

Mr. Leonard B. Boudin: I suppose --

Justice John Paul Stevens: (Voice Overlap) the bribery or -- or regular bribery?

Mr. Leonard B. Boudin: It's very hard.

It says -- it says out of sport, if I may use the expression.

It's a special kind of situation in which you have so many state bribery statutes involving sports.

If I have to categorize them I would say it's a variety of commercial bribery or perhaps it reflects a special concern of the American legislators and people for that particular aspect which was a national scandal, I think at about 1962 or 1963 after the statute.

So even reflects it --

Chief Justice Warren E. Burger: It wouldn't be -- be a --

Mr. Leonard B. Boudin: Excuse me, I'm sorry.

Chief Justice Warren E. Burger: Would it make any difference whether it was a football player on a state supported state university football team or professional team as to whether it was public or private?

Mr. Leonard B. Boudin: I don't think so.

I think the real question is what the Congress had in mind in passing the statue and Congress did not have in mind.

I may say, despite Senator Keating's passing observations at the end of congressional hearings with respect to a sports bribery statute.

To me, the critical problem which we face here before the Court is that on which the Government takes issue with us and that is, "What is the meaning of Nardello?"

I already said what the Court said in Nardello with respect to bribery, but why did the Court decide Nardello as it did.

It'll be very strange if the Court expanded bribery -- in this case, if this Court expanded bribery in this case, we'll you use the term broadly, I don't want to beg the question, when the broad definition of extortion in Nardello was based upon the Government's argument in Nardello, that this broad definition of extortion was required because there was a narrow conception of bribery.

Now, taking Nardello on the merits, Nardello was based upon a legislative history in which Attorney General Kennedy said, "Their organized crime used extortion."

It was based upon the blending by legislation and judicial decision of extortion and blackmail unlike our line of demarcation here.

It was based upon the fact that as the Government pointed out so well in its Nardello brief upon which most of my knowledge comes here that extortion by legislators alone was inconsistent, where the statute directed an extortion by organized crime.

And finally, the Court said, "Obviously, we defer to that, take note I have no problem with it," that labels of blackmail could not obscure the fact that Nardello was engaged in extorsion of conduct even under state law.

Now, I want to suggest also to the Court as we have in the last pages of our brief that an expansive interpretation of the term "bribery" would -- under Rewis and many other decisions of the Court all too sensitive federal state relationships by transforming minor offences into federal felonies and I think that as the Court said in Bass, I think it was Mr. Justice Marshall who wrote the opinion there.

"Unless Congress conveys its purpose clearly," I'm using the Justice's words, "then this kind of restructuring could take care of minor crimes, is impermissible and indeed, this restructuring is as rather strange thing because it's an anachronism even in the federal system.

Thus, for example 29 U.S.C 186 (a) which deals with gratuities to have trade union officials is a misdemeanor and Section 215 of 18 U.S.C. refers to gratuities received by a banking official as a misdemeanor.

This statute would made -- would make a telephone call to a banking official or from him where a telephone call by a labor union agent, a felony.

I think therefore that the -- you have a problem with respect to the restructuring the -- of the federal system as well as the State.

Now, this is in my view, if I may suggest it, exactly the kind of case with which this Court dealt in discussing the principle of lenity.

It is a case where in the words of Bachelder and Culbert, words do not plainly impose meaning.

We don't know which dictionary definition was chosen even in the Oxford to take the Government's example.

We don't know whether the common law should be disregarded.

We don't know whether the principle of (Inaudible), namely that you can still -- penal laws narrowly should be disregarded, it take all of those considerations and it calls here for a principle of lenity which this Court, I think in the Dunn case pointed out has a constitutional basis in Ex Post Facto principles and --

Justice William H. Rehnquist: Is that raised as a constitutional question in the court's below?

Mr. Leonard B. Boudin: Yes, the issue of notice was raised in the court below at page 190 to 192, the 192 of the transcript.

Justice William H. Rehnquist: The constitutional question.

Mr. Leonard B. Boudin: The -- the issue of the -- yes, the constitutional issue of notice, but I don't think that it's really the problem here.

I think the problem here is the construction of a statute.

And the construction of a statute, whether the issue had been raised below or not, call for the principle of lenity, particularly, where you have here a very minor, I think a -- a small fish, I'm paraphrasing, was the word used by -- by Judge Rubin dissenting in the court below in this case.

I would also urge the Court in considering this problem to note that this is probably the third case in 18 years involving the application to commercial bribery of Section 1252.

At least, we have not been able to find any and of course we know in Brecht -- in Brecht, the Court came to different conclusion so we are left here with a Pomponio and this apparent situation.

This is clearly the kind of a case where we cannot say it was said in -- in Scarborough, that there is a clear history.

This is the kind of a case in which we -- the history is on our side and I think that construction of the word, bearing in mind its long history is on our side.

Now, to conclude at least for the moment, let me suggest to the Court what it is asked by the Government to do.

It is asked by the Government to define a criminal statute which is at best ambiguous, which has been enforced against the defendant twice or group of defendants twice in 18 years.

It has asked to construe it differently from the common law, broadly rather than strictly, although it's a penal statute, under a definition which among others may be found in popular dictionaries or even learned dictionaries like Oxford under a definition which is contrary to that of all legal dictionary that I've seen which when they use the term commercial bribery, use it as a separate heading.

It has asked to construe it contrary to legislative history of which there is very little of whatever is on our side.

It has asked to construe it contrary -- contrary to the views expressed to this Court by the Solicitor General of the United States in Nardello and the passage to which I referred Your Honors in the original briefs, and I submit my very high regards to that office.

And I'm sure the courts of course leaves it to conclude that the Solicitor General that not suggest that bribery had a narrow definition, if I can call it narrow, limited to public officials for strategic reasons in Nardello, but it stated its view in Nardello with reason and with thoughtfulness and with a knowledge of legal history.

I'll reserve my time if I may.

Chief Justice Warren E. Burger: Very well, Mr. Boudin.

Mr. Shapiro.

Argument of Stephen M. Shapiro

Mr. Stephen M. Shapiro: Mr. Chief Justice and may it please the Court.

The Government contends that the Travel Act prohibits the use of interstate facilities to promote all forms of bribery, illegal under state or federal law, including commercial bribery.

In establishing that proposition, we rely on the text of the Travel Act, the contemporary meaning of the words used in the Act and the Act's legislative history.

In addition, we rely on this Court's decision in the case of United States against Nardello, which provides the rule of statutory interpretation which we believe is controlling here.

I'd like now to take up each of these points separately.

The literal terms of the Travel Act extend to bribery in violation of the laws of the United States or the State in which the crime is committed.

Unlike other federal criminal statutes such as the official bribery statute, the Travel Act does not limit its coverage to a particular kind of bribery.

Without any limiting modifier, the term bribery has a generic meaning that is the giving or the receipt of something of value in order to corrupt the judgment or the action of someone in the position of trust.

The ordinary meaning of the word bribery includes official corruption but it's not limited to official corruption as Webster's Dictionary reminds us.

Counsel has nonetheless contended that the weight of authority in legal dictionaries is different from the weight of authority in the Oxford English Dictionary and in Webster's Dictionary.

Justice William H. Rehnquist: But Mr. Shapiro wouldn't one expect in view of the very specific language in -- about the payment of federal excise tax in 1026 that the bribery if it'd be federal bribery here be violation of a specific bribery statute and not just of some generic concept of bribery?

Mr. Stephen M. Shapiro: We think that Congress deliberately selected a general word without reference to a particular kind of bribery because it meant to embrace various federal and various state bribery statutes that didn't wish to include a long enumeration of those statutes or of state arsenal extortion statutes.

It would be quite lengthy and the cumbersome statute of each one of the specific offenses was enumerated.

Justice William H. Rehnquist: And what federal bribery statute do you contend was violated here?

Mr. Stephen M. Shapiro: We contend that it was a state bribery statute that was violated through use of interstate facilities giving rise to a violation of the Travel Act.

Justice William H. Rehnquist: So you need -- needn't worry about actual federal bribery statutes on the books because you need in order to succeed in order to show -- to show that the Louisiana Commercial Bribery Statute was violated.

Mr. Stephen M. Shapiro: That's correct Your Honor.

We -- we depend on a violation of the Louisiana statute facilitated through the use of interstate facilities.

Counsel has contended for a common law definition of the word bribery pointing to the legal dictionaries which he contends are different from the popular dictionaries, but Black's Law Dictionary defines a bribe -- bribery as the offering or soliciting of anything of value to influence action as an official or in discharge of legal duty and it gives us examples, common law bribery and commercial bribery.

The same is true in Wharton's law-lexicon which defines a bribe as a gift to any person, office or holding a position of trust with the object of inducing him to disregard his official duty or betray his trust.

Again, the examples that are given are official bribery and bribery of agents and employees.

The legal dictionaries use the term the same way Webster's Dictionary and the Oxford Dictionary uses the word as a generic designation covering both official and non-official bribery.

Instead of designating a particular kind of bribery such as official bribery, the statute refers to bribery offenses prohibited under the laws of Congress or the laws of the States.

Because the scope of the Act is delineated by reference to state or federal bribery law, we believe that it is most significant that a large number of state and several bribery laws passed prior to the enactment of the Travel Act, explicitly extended to non-official bribery.

This -- this pattern of statutes confirms that in contemporary legal usage in 1961, the term bribery had a far broader meaning than official bribery.

Prior to enactment of the Travel Act, Congress prescribed non-official bribery in a variety of different criminal laws.

For example, Congress prohibited bribery in the sale of liquor, bribery in the procurement of interstate transportation and bribery of contestants of clearing in television quiz shows.

The situation in the states is similar.

By 1961, 43 states had adopted criminal laws prohibiting various forms of non-official bribery, including bribery of employees and agents, bribery of workers in particular kinds of industries, bribery of labor union officials, and bribe -- bribery of athletes participating in sporting events.

Because of this statute's coverage is defined by reference to state and federal bribery law, the widespread existence of statutes forbidding commercial and other forms of non-official bribery is a strong indication that the Travel Act should have a coextensive reach.

We submit that it would be highly inappropriate to assume that Congress was unaware of the fact that most of the States in the union had enacted criminal laws forbidding non-official corruption and it would be even more extraordinary to assume that Congress was unaware of its own criminal legislation making commercial bribery a crime.

Although the legislative history of the statute is limited, the hearings show that the proponents of the statute understood the contemporary generic meaning of the word bribery.

Justice William H. Rehnquist: Congress has made its commercial bribery a crime, why do you have to rely on the Louisiana statute here?

Mr. Stephen M. Shapiro: Congress' commercial bribery statutes refer to particular industries where the problem was felt to be especially acute, for example bribery in interstate transportation and bribery in the sale of liquor.

Justice William H. Rehnquist: You couldn't convict under those statutes here then?

Mr. Stephen M. Shapiro: That's correct, Your Honor.

You need the -- the Louisiana statute as a predicate.

Senator Keating who is a proponent of the statute and who participated in its drafting stated specifically that he understood that the Travel Act would apply to bribery in sporting events.

This shows pretty clearly that Congress did not envision the statute as applying only to official bribery.

No contrary views were ever expressed during the hearings and during the hearings on this bill and its companion bills which were heard altogether in a package, several of the -- the witnesses as well as the Attorney General stated the view that various forms of non-official corruption were bribery, for example, bribery of labor union officials and bribery -- bribery in sporting events.

No congressman or representative from the Department of Justice ever suggested that the Act should be limited to official bribery.

The legislative history also shows that the dominant purpose of the Travel Act was to cut off the flow of profits to organized criminals by depriving them of the use of interstate facilities to carry on their illegal activities.

For this reason, the statute prohibits arson and extortion, both of which are used by criminals to prey on honest business firms and to increase illicit revenues.

Commercial bribery is likewise used by organized crime to increase the flow of money which Congress meant to cut off.

Congressional hearings, both before and after enactment of the statute confirm the extent to which criminals make use of commercial bribery to infiltrate honest business.

Organized crime uses commercial bribery to steal securities from brokerage houses, to pledge them with banks and other lending institutions, to sell worthless or fraudulent stock to institutional investors and to steal valuable cargos through the connivance of bribed workers.

Justice Potter Stewart: I suppose organized crimes -- crime uses various other or offends various other local laws that concededly are not covered by the Travel Act too?

Mr. Stephen M. Shapiro: Well, it's quite correct, Your Honor.

We contend though the treatment of commercial bribery as a subspecies of the offense of bribery would promote the congressional purpose to cut off the --

Justice Potter Stewart: This is so an inclusion of a lot of other crimes that are -- local crimes that are not -- that are concededly not covered by the Travel Act.

Mr. Stephen M. Shapiro: That's quite true.

If they don't fall under the heading of the word bribery --

Justice Potter Stewart: That's perhaps the question, is it covered or isn't it covered?

Mr. Stephen M. Shapiro: Well, that -- that's true.

Justice Potter Stewart: (Voice Overlap) organized crime uses these various things.

Mr. Stephen M. Shapiro: And for the purpose -- the reasons that we gave, we think the literal meaning of the word bribery extends generically to different varieties of bribery including commercial bribery.

Justice Harry A. Blackmun: Mr. Shapiro, counsel indicated that this was a rare prosecution or at least was an early one, do you agree?

Mr. Stephen M. Shapiro: There -- there had been relatively few commercial bribery prosecutions under the statute due in part to the difficulty of detecting these offenses, but there have been some.

There have been three reported decisions in the Courts of Appeals involving commercial bribery prosecutions.

There had been two reported decisions in the District Courts and four other cases are referred to unreported opinions at the District Court level.

The department at present has investigations pending into widespread commercial bribery which may in the future result in additional prosecutions.

Justice Thurgood Marshall: And one of the reasons we have to show interstate commerce.

Mr. Stephen M. Shapiro: That's correct, that's correct Your Honor.

Justice Thurgood Marshall: And that's the problem too?

Mr. Stephen M. Shapiro: That's often a problem.

Justice Byron R. White: Is that a direct Pomponio in this case --

Mr. Stephen M. Shapiro: And Perrin, those are the three Court of Appeal's decisions on this point.

Justice William H. Rehnquist: And in each case, I suppose you would have to show all of the substantive elements of the state statute involved?

Mr. Stephen M. Shapiro: You -- you would have to prove that interstate commerce was used for the purpose of facilitating an offense under state bribery law.

Justice William H. Rehnquist: But you would have to all -- don't you also have to prove that the offense under state bribery law was committed?

Mr. Stephen M. Shapiro: You don't have to show that it was consummated.

The case law is uniform to that effect.

You just have to show that interstate facilities were used to promote that offense and that an overed act occurred after the use of the interstate facilities.

Justice William H. Rehnquist: Well, what does it mean to promote an offense?

Mr. Stephen M. Shapiro: Well, to -- for example in this case, to make -- to make easier the payment of bribery proceeds to the bribed employee even if those proceeds were not in fact given to the employee or --

Justice William H. Rehnquist: Well, what if -- what if under the State of Louisiana holdings, the person in question whom you prosecuted had been held by the Supreme Court of Louisiana not to be an employee?

Mr. Stephen M. Shapiro: Well, if -- it would be impossible to commit the offense under Louisiana law, then the use of the interstate facilities would not be in aid of a violation of the state statute and there would be no Travel Act violation.

We would emphasize that if petitioner's proposed interpretation of the statute were accepted, syndicate members based for example in New York City could operate a scheme to bribe the workers in a brokerage house in Chicago or the employees in a bank in Huston or Los Angeles causing serious financial losses and enriching organized crime.

Due to the interstate nature of the offense, local authorities would not be in a position to effectively investigate and prosecute the offenders.

Considering the generic text of the statute and its broad corrective purposes such on a narrow, unnaturally narrow interpretation would be inconsistent, we submit, with the statutory design.

Justice Byron R. White: Is that -- is your strongest legislative history the passage you quoted from Senator Keating?

Mr. Stephen M. Shapiro: That is indeed, Your Honor.

The passage from Senator Keating is the strongest piece of history.

We -- we all labor under -- under the difficulty here of a -- a very limited legislative history.

Justice Byron R. White: You're suggesting that -- you're suggesting that that would be an example -- the sports would be an example of commercial bribery?

Mr. Stephen M. Shapiro: Of unofficial bribery.

It shows that the interpretation --

Justice Byron R. White: Unofficial bribery.

Mr. Stephen M. Shapiro: Right.

It shows that the interpretation that's being advanced by petitioner isn't the correct interpretation.

Congress did not envision a limitation of the Act to official bribery.

Chief Justice Warren E. Burger: Didn't Attorney General Kennedy referred to union corruption as a form of bribery?

Mr. Stephen M. Shapiro: He did indeed, Your Honor, and he also referred to bribery --

Chief Justice Warren E. Burger: This hearing is on the -- on the same legislation or on related legislation?

Mr. Stephen M. Shapiro: Companion bills that were considered in a package and we think that these references by the Attorney General and the other congressmen who participated in the hearings show that these congressmen understood the contemporary generic meaning of the word bribery.

Because Congress prohibited bribery under the Act in general terms without limitation to a particular kind of bribery and because the legislative history supports the generic reading of the statute in our view, the Court of Appeals correctly concluded that this Court's decision in United States against Nardello provides the applicable rule of statutory interpretation.

In Nardello, this Court held that the word extortion which appears in the same portion of the act, as the word bribery, should be given a generic meaning and should not be limited to acts of extortion, involving public officials.

Justice William H. Rehnquist: What about the footnote in Nardello that your opponent relies on?

Mr. Stephen M. Shapiro: The Court did indeed point out that bribery has traditionally focused on corruption of public officials, but the Court did not undertake a comprehensive review of the offense.

If it -- if it had gone into the details of the development of this offense, it would've seen that by 1906, commercial bribery was a criminal offense in Great Britain and that by the turn of the century, Congress had enacted criminal laws forbidding commercial bribery and the States had as well.

I think the Court's footnote statement is a -- is a fair generalization, but it -- it doesn't purport to exhaust the -- the subject, its --

Justice Potter Stewart: How about your brief in that case?

Mr. Stephen M. Shapiro: Our -- I don't think our brief goes any further than that footnote.

I think it simply says that that traditionally --

Justice Potter Stewart: But we -- we have it on file, wouldn't we?

Mr. Stephen M. Shapiro: Traditionally, that offense is referred to public officials, but as a matter of fact, by 1906, it had gone quite beyond that in Great Britain and shortly after it had gone far beyond that, both at the federal level and in the States.

In Nardello, the Court found no language in the Travel Act or its history which would confine the Act to official misconduct and the Court noted that extortion is generally understood to include threats by private persons and that --

Justice John Paul Stevens: Mr. Shapiro, may I go back for a moment to the footnote because I just want to be sure I understand the whole thing.

What was the purpose of point -- of the Government pointing out in the Nardello brief and in this footnote that bribery was traditionally, narrowly limited to public officials unless it was the Government's view that bribery was so limited under the statute?

Mr. Stephen M. Shapiro: I -- I think that the -- the briefs speaks in generalities and that -- that it meant only to -- to indicate that -- at common law that this was the traditional focus of -- of the offense of bribery.

I don't think that it -- it purported to go into a detailed analysis of -- of the development of the offense.

Justice John Paul Stevens: No there wasn't a -- wouldn't have been a fair reading of the brief to interpret as indicating that Solicitor General thought that the term bribery in the statute was also limited to -- to its traditional meaning.

Otherwise, I don't understand why he would've made the argument?

Mr. Stephen M. Shapiro: Well, I -- I think that that was the general philosophy of that --

Justice John Paul Stevens: I see.

Mr. Stephen M. Shapiro: -- of that remark, but I -- I don't think it was a remark made in light of the full history of the development of this offense because when that review is undertaken, it's clear as it possibly can be that bribery applied by 1906 to commercial bribery --

Justice Byron R. White: But you're -- you're just saying whatever is -- the Solicitor General meant to give that opinion, he was wrong then.

Mr. Stephen M. Shapiro: Well if -- if he meant that to be an absolute assertion, it's historically incorrect.

Justice Byron R. White: Because your argument was in that case and as I get it from reading the opinion that if you construed the extortion -- the extortion statute the way it was urged by the -- by the defendant in that case, that it -- the -- the two statutes would be -- one of them would be superfluous --

Mr. Stephen M. Shapiro: Substantially over (Voice Overlap)

Justice Byron R. White: -- into bribery or like extortions --

Mr. Stephen M. Shapiro: That's correct.

Justice Byron R. White: -- when he said that that you have to construe it, the extortion statute, probably to keep it -- to keep that -- it from being superfluous to the -- the bribe -- bribery statute?

Mr. Stephen M. Shapiro: That's quite correct and I -- I think that that was the thrust of --

Justice Byron R. White: And now you're just suggesting that argument, looking at it now wouldn't -- isn't -- wasn't a very good one?

Mr. Stephen M. Shapiro: Well, I -- I think that it -- as a general proposition, it's correct, but it's not correct.

I think it's fairly described as a dictum in -- in both the opinion in the brief and that further research into the development of this offense shows that there is more to the story than -- than that brief summary.

In contending for a limitation of the Act to official bribery, petitioner argues of course that at common law, the term bribery was limited to various forms of official corruption and that the Travel Act should be limited to that same scope.

In our view, the Nardello case really isn't sufficient answer to that assertion.

Nardello declined to adopt the common law definition of the word extortion, concluding that the modern generic interpretation was better suited to serving Congress' purposes.

In addition, as we've discussed in our brief, the common law definition of the word bribery is not a useful standard reference in construing the Act.

The common law definition was subject to continuous change in evolution.

It was a compound offense developing both through statutory enactment and through common law development.

By the 19th Century, it extended not only to judges, which was the original offense, but also extended to various other public officials and certain private persons such as voters.

And by 1906, by statutory enactment --

Justice Potter Stewart: Well, private person when carrying on -- public duties, voters and jurors and people like that.

Mr. Stephen M. Shapiro: That's quite correct.

And by 1906, Great Britain had concluded that persons in a position of private trust were vested within a -- a position of importance to the public and prohibited commercial bribery.

We think it would be highly arbitrary to select the common law prior to 1906 as the standard of reference in construing the statute.

It doesn't say bribery illegal under common law prior to 1906.

It says, "Bribery illegal under the laws of Congress and the laws of the 50 states," which is far different from the common law definition as we've previously discussed.

Justice Potter Stewart: Judge Gurfein in the Brecht opinion said as I remember that at the time of the enactment of this federal law, there were only some 13 states, that's my recollection, that had -- that made the commercial bribery a criminal offense and -- and he further added somewhere in his opinion that in some of the States, they don't even -- those offenses don't even use the word bribery.

Mr. Stephen M. Shapiro: In our appendix to our brief --

Justice Potter Stewart: Is that represents incorrect?

Mr. Stephen M. Shapiro: That -- that's indeed --

Justice Potter Stewart: If my memory is correct and be if my memory is correct is his statement.

Mr. Stephen M. Shapiro: His statement is -- is incorrect, but your memory is quite correct.

In 1961, 13 States had general statutes making commercial bribery a criminal offense.

An additional 12 States had narrower statutes focusing on particular persons in particular lines of industry.

These were more specific commercial bribery laws.

Thirty two states had criminal laws forbidding bribery in sporting events which is quite a departure from the common law.

There was no common law offense of -- of bribery of athletes.

Additional States had statutes making it a criminal offense to bribe persons such as architects or labor union officials.

In all, by 1961, 43 States have statutes prohibiting non-official bribery, going beyond the common law definition.

Great Britain had the statute prohibiting commercial bribery.

Congress had several of them.

At present, 49 states have statutes forbidding non-official bribery, going beyond the common law definition.

Justice Potter Stewart: How about the -- Judge Gurfein's point that at least some of the state general statutes in prohibiting this sort of non-common law activity didn't even use the word bribery.

Mr. Stephen M. Shapiro: Well --

Justice Potter Stewart: Is that correct?

Mr. Stephen M. Shapiro: That is correct.

Some of the states do not use the synonym such as corruption.

Justice Potter Stewart: Well, my query is it a synonym?

Mr. Stephen M. Shapiro: In our appendix, we -- we only cite state statutes that use the word bribery.

We -- we base our argument on statutes to do that but there -- we believe that if the state law prohibits the payment or the receipt of money to affect the judgment of someone in a position of trust.

It falls within the generic definition of the word bribery, just the way the blackmail fell within the generic definition of the word extortion in Nardello.

It was embraced within the generic definition and we think on similar principles, those laws would be included as well, although it didn't decide -- we didn't cite them.

We constructed that chart in a conservative way.

Justice William H. Rehnquist: You're not suggesting that the meaning of the Travel Act expands after it was passed because more and more States passed commercial bribery statutes.

Mr. Stephen M. Shapiro: We do indeed.

If a -- if a State such as Idaho which now has no -- it's only State that now has no commercial bribery legislation, if it -- if it adopted a statute making it legal to bribe a doctor, that would be bribery in violation of state law and it would be embraced under the Travel Act.

Justice William H. Rehnquist: Yes, but would it be the generic bribe -- you need two elements under the Travel Act.

You need a bribery generically and you need a violation of the state statute.

Mr. Stephen M. Shapiro: Correct.

Justice William H. Rehnquist: Would you say that Idaho Statute enlarged the generic meaning of the word bribery?

Mr. Stephen M. Shapiro: Oh, no Your Honor, we don't.

We -- we only would contend that this would be another subspecies within the generic definition of bribery that would fall under the ban of the statute because the State had enacted it.

Bribery of architects or bribery of lawyers or examples of new kinds of bribery that the States could forbid but which would fall within the generic definition of the word bribery used by Congress.

Congress meant to leave the definition open ended.

It referred to bribery generally and left the definition or the particularization to the state statutes, but your -- your initial point was quite correct that you -- you need a two step analysis.

Is it within the generic definition of bribery, one and two, is it forbidden by a state law?

Justice William H. Rehnquist: Is that a common facet of a criminal statute to leave the definition open ended?

Mr. Stephen M. Shapiro: It's -- we think it's a necessity in this kind of a situation where otherwise it would be impossible to list all of the variance of state law, arson for example or state law extortion using different words.

This is how the Court construed the Act in Nardello in the manner that I --

Justice John Paul Stevens: You don't really mean it's open ended.

You just mean it's a broad category that's not coextensive with any group -- any state statute.

But, don't you -- don't you accept the proposition and whatever the contours of the -- of the federal -- of the concept of bribery in the Travel Act they remain constant?

Mr. Stephen M. Shapiro: Yes, I do.

I certainly do.

Chief Justice Warren E. Burger: The meaning doesn't change.

It just means that as consequences, a new area is embraced under the statute.

Mr. Stephen M. Shapiro: That's quite correct.

I -- I only meant to say what the Court said in Nardello that the word has a generic meaning.

I -- the word open ended is less Solicitor's description, generic is the proper term.

Justice Potter Stewart: And if in 1985, the State of Idaho, enacts a law, making it a criminal offense to pay money to -- in the commercial transaction to get a benefit that you wouldn't otherwise get without mentioning the word bribery, then somebody who travels into Idaho and violates that statute is guilty of the violation of the Travel Act, is that right?

Mr. Stephen M. Shapiro: That's quite correct.

We think that's the necessary meaning of the Nardello Case.

Justice John Paul Stevens: That's the same I suppose that to the first time a State -- State adopted a statute making it a crime to bribe a judge.

They never had a judge-bribing statute before they could adopt one in 1999 and they then come within the Travel Act.

Mr. Stephen M. Shapiro: Absolutely, it's a very same issue.

Petitioners also argued that the Travel Act cannot be applied here because extension of the act of commercial bribery without a proven association with organized crime would result in the prosecution of insignificant local offenses and would extend federal jurisdiction over state crimes.

We note in response that the present case is far from an insignificant one, involving as it does, a well organized criminal venture, intended to exploit stolen geological data, showing the location of oil deposits.

And as a general matter, there is no reason to assume that commercial bribery is likely to involve an insignificant offense.

Both official and commercial bribery have the clear potential to injure the public.

In addition to enriching criminals and inflicting private losses, commercial bribery has the potential to cut off honest competition and to cause the distribution of inferior products to the consuming public.

Prosecution of commercial bribery under the Travel Act like prosecution of official bribery would naturally involve an exercise of authority over persons who violate state law, but the Act was clearly intended to have just that effect.

It explicitly applies to bribery illegal under federal or state law.

As this Court has repeatedly pointed out, the very purpose of the Act was to aid local law enforcement officials by punishing persons who use interstate facilities to carry on the designated illegal activities.

And there is nothing improper, we submit, about applying substantial penalties to violations of the Act when it's triggered by state law offenses.

Congress believed that interstate schemes to carry on bribery in violation of either federal or state law posed a serious national threat.

And where the facilities of interstate commerce are used, it is for Congress to select the means necessary to punish and deter the offenders.

Petitioner's final contention of course is that its conviction must be reversed under the rule of lenity.

He argues in this connection that the statute is vague and that it must therefore be narrowly construed in his favor, but the Travel Act does not present a vagueness problem.

The statute's literal realm extends to bribery without limitation on its kind.

The literal dictionary meaning of the word bribery is generic.

When the Act was passed, the word bribery had been applied repeatedly to commercial corruption in a wide variety of different federal and state criminal laws.

The legislative history of the Act, although it's sparse, shows that its proponents viewed the term bribery in a contemporary generic sense and the dominant statutory purpose that is cutting off the flow of money to organized crime strongly supports the view that commercial bribery should be covered.

This is not a case in which the defendant has a plausible claim that he could not have known that his conduct was subject to criminal sanctions.

He was well aware that his actions were wrongful as the evidence at trial showed.

He had clear notice that his conduct was in violation of the Louisiana Criminal Statute which triggered application of the Travel Act.

Justice Potter Stewart: Has the -- have any charges ever been made against this defendant under the Louisiana law?

Mr. Stephen M. Shapiro: They have not Your Honor.

He was of course also on notice from this Court's Nardello decision that the terms of the Act would receive a generic interpretation and would not be restricted to common law meanings.

Justice William H. Rehnquist: But in this prosecution, you wouldn't have to have shown a complete violation of the Louisiana statute, would you?

Mr. Stephen M. Shapiro: That's quite true Your Honor, but he was on notice that the course he was embarked on would lead to criminal penalties.

That's -- that's our only point, that this isn't an innocent individual who believed that the actions that he was undertaking were lawful.

The only Court of Appeals to have ruled on the precise question presented here had concluded before petitioner became and a scheme to -- became involved in the scheme to commit bribery, that the Travel Act did in fact extend to commercial bribery.

That's the unanimous decision in United States against Pomponio.

This is not then a case in which the defendant was required to speculate about the illegality of his actions.

As this Court noted in the case of SEC against CM Joiner, the rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the broader popular, instead of the more narrow technical one.

Justice Potter Stewart: Of course we -- that's exactly the approach that was rejected in the Rewis Case, isn't it?

Mr. Stephen M. Shapiro: Well, in Rewis Your Honor --

Justice Potter Stewart: The broad literal meaning of the statute would have led to the affirmance of the conviction in -- convictions in Rewis.

Mr. Stephen M. Shapiro: Rewis is quite different.

In that case, there was no proof that the defendants had used interstate facilities to carry on the illegal scheme and where the Government proves that interstate facilities are used, that's an entirely different question.

Where interstate facilities are used there is --

Justice Potter Stewart: I know the questions are different though.

We're talking now about the approach to which the Court should come to the statute.

Mr. Stephen M. Shapiro: Well, I think the -- the approach that the Court used there was predicated on the absence of interstate commerce.

When there is no interstate commerce then the federal interest is no longer significant.

The local interest is paramount.

Justice Potter Stewart: (Voice Overlap) case from Georgia to Florida as I remember, were concededly --

Mr. Stephen M. Shapiro: Well, the defendants stayed in Florida.

Justice Potter Stewart: -- were the patrons of the gambling (Voice Overlap) --

Mr. Stephen M. Shapiro: An occasional patron went across the state line, but the defendants did not use the facilities of interstate commerce to promote the offense.

That's the essential difference in the cases.

As this Court also pointed out in the Scarborough case, the rule's strict construction is not required where unless after seizing everything from which aid can be derived, the statute remains ambiguous.

Here, we think when the usual rules of statutory interpretation are used, there is no ambiguity and we accordingly, respectfully request that the decision of the court below be affirmed.

Thank you.

Chief Justice Warren E. Burger: Mr. Boudin.

Rebuttal of Leonard B. Boudin

Mr. Leonard B. Boudin: May I Your Honor?

I should like to read to the Court the Government's language in its brief in Nardello at page 9.

"Furthermore," said the Government, "joined in the same clause with extortion, is an offense which has its normal focus, the corruption of public officers interstate travel to promote 'bribery'" is also forbidden.

In this context, reading extortion as confined only to acceptance of unauthorized fees by public officials would render the extortion branch -- sorry, would render -- would render the extortion branch of the clause practically superfluous.

The Government there took the firm position that where corruption is involved, it had to have, at least it would persuade the Court to take a broad definition of extortion because as it said, the corruption of public officials was being handled by the bribery provision.

This not a quote --

Justice John Paul Stevens: I believe as you read that, that's consistent with the bribery definition being either broad or narrow (Inaudible)

Mr. Leonard B. Boudin: I accept the -- it may be consistent except in one respect.

The -- the logic of the Government's argument may be failing, but the Government was very clear in stating there that bribery meant public officials --

Justice John Paul Stevens: Included public officials.

Mr. Leonard B. Boudin: Yes.

Justice John Paul Stevens: But their argument only required it to include not to be limited too.

Mr. Leonard B. Boudin: No.

Justice John Paul Stevens: And -- and they're -- they're objecting to the claim that the extortion is limited to public officials.

Mr. Leonard B. Boudin: I think that's --

Justice John Paul Stevens: If that's the case it's -- it's overlap.

Mr. Leonard B. Boudin: Perhaps I read it too quickly.

The Government said --

Justice John Paul Stevens: I think you can read it, yes.

Mr. Leonard B. Boudin: -- in its brief "the normal focus, the normal focus."

Now you can play around with that phrase and say now, "It only meant that it was the central issue or that it was 90% of the time true."

Justice Thurgood Marshall: You can also play around with the fact that the present Solicitor General does not take that position.

Mr. Leonard B. Boudin: Yes, of course that's perfectly valid and of course, the Court in Nardello with its footnote seemed to accept that decision.

Now, if this is a question that we're now construing not only the meaning of the term bribery but we're now construing what the Government's concession meant, just simply adds another element to the indefiniteness of what we are treating.

The Government, and of course I have reference with all due respect to then Deputy Attorney General's tying in of the term bribery to the term official bribery or limiting it to that and the same thing was true of the Attorney General Kennedy.

Your Honors will recall what Government counsel just said, when he was asked about what's the major legislative support that he has for believing that bribery, means commercial bribery -- means that commercial bribery and his answer was, "Senator Keating's observations un-supports bribery."

You look at, if I may suggest it, the hearings in the case and you'll see how this somewhat personalized statement by a single legislator that nobody caught on to, that was passed over, and this is considered the largest legislative support.

I suggest if we want to see other support for my position that we look at 18 U.S.C. 1961. 1961 is a statute which talks about bribery, in one case, refers to Section 201 as relating to bribery and then talks about Section 224, not as relating to bribery, but as relating sports bribery.

At best, we have an ambiguity here as to the meaning of the term.

The Government has referred, Your Honor, also to references to labor corruption.

I touched down in a moment before.

Your Honors will see at pages 31, 246 and 272 of the House hearings, I haven't put that on a brief but perhaps I can, shortly in a letter, if Your Honor permits, the Government was talking about the Immunity Act.

There was not a word -- a proposed marriot, there is not a word in dealing with this statute about labor corruption.

The Government pulls out now what the Congress must've known about a statute passed in 1906 in Great Britain.

Again, if this is how we are to interpret legislation, then I suggest it gives an air of ambiguity to the statute.

On the dictionaries, I have addressed myself to that.

I would urge Your Honors to look at those dictionaries and see whether those dictionaries are not consistently, in my favor, if they are illegal dictionaries.

But quite aside from that, all they do really is indicate that there is ambiguity in the meaning of the word bribery.

And the question is whether in this case, unlike many others, appeal statute, whether or not the statute is to be construed broadly or narrowly.

A reference has been made to the open-ended aspect of the statute, as read by the Government, and it's been suggested that there are ways out for it, but if you take my construction of the statute, which I think is Congress' and then only Congress' view and not what a state law says and not what one dictionary or another says, it is Congress' view, mine gives a non open-ended situation because public bribery, governmental bribery has a precise meaning.

Under the Government's definition, the moment a state passes a statute like Wisconsin, for example, providing for a $25 fine for gratuity, because a gratuity paid to a chauffeur, we then have a real open-ended situation.

Did Congress intend to make the $25 gratuity to a chauffeur or a $100 to a lumberman in some other State?

Did it intend to include that in the term bribery?

There is no suggestion in the legislative history that it did but if one looks at it, if we can stand aside and say, "What could Congress had meant in passing the statute directly to organized crime where they had no evidence that organized crime was using commercial bribery?"

It had a concrete function and purpose, which a National legislator -- Legislature would have.

There is a very serious crime in the bribery of public officials, the one referred to by Deputy Attorney General White and by Attorney General Kennedy.

Bribery of public officials is a critical matter, deserves a national attention and is the most reasonable application of the Travel Act.

But to say now that because bribery could be interpreted by some definitions to be broad, when commercial bribery has a line of demarcation, I've indicated before, is also to disregard what a reasonable Congress would have intended in addressing itself to this problem.

Thank you, Your Honor.

Featured:

Perrin v. United States - Oral Argument, Part 1

Thu, 13 Sep 2012 22:03:51 +0000

Case:

Perrin v. United States

Media File:

78-959_19791003-argument-1

Related Transcript:

78-959_19791003-argument-1

Transcript:

Argument of Leonard B. Boudin

Chief Justice Warren E. Burger: The case is submitted, we'll hear arguments next in Perrin against the United States.

Mr. Boudin, I think you may proceed whenever you're ready.

Mr. Leonard B. Boudin: Mr. Chief Justice and may it please the Court.

The issue in this case, one of statutory construction with constitutional implications is whether Congress in using the term "bribery" in 18 U.S.C. 1952, the Travel Act, intended to refer to bribery of public officials as used in the common law or rather included the term "commercial bribery" and that which is involved solely in this case.

The Travel Act, this Court will recall, insofar as relevant here makes it a crime, a felony punishable by $5000 or five years in prison, $10,000 to use interstate commerce including the mails for the purpose of facilitating an unlawful activity and one of the unlawful activities described here is bribery.

The facts not between before this Court, due to the limited certiorari, it is sufficient for me to say that the petitioner is a private consulting geologist who was convicted after a jury trial charged with participating in the bribery of a private employee of a private concern and that there appear to be two telephone calls and one interstate shipment of non-incriminating data involved in this case.

Now, in construing the statute and it's the most interesting problem of statutory construction, we have here, the problem is to determine what Congress and only Congress intended in the bribery act, not to determine what a state intended or as Nardello to which I will refer later, points out with a state label was.

What did Congress intend?

In considering the intent of Congress, we have the familiar but controlling and important canons of construction in a case of this kind.

The first, of course, is whether the term "bribery" has plain meaning and I must say that the Government's arguments in bribery is not to be considered as common law formulation but it would to be determined by the Oxford Dictionary or Webster's, does not seem persuasive particularly if one realizes that if one pertains to the legal dictionaries like Bouvier or Black, one finds that they use the term bribery including the most recent addition of Black in the technical common law sense.

Just to take one example of Black, I'll just read the first few lines, "The offering, giving, receiving or soliciting of anything of value to influence action as official or in discharge of legal or public duty."

In contrasting these two definitions, one has to remember Mr. Justice Holmes' statement which I read recently in -- in Justice Frankfurter's Cardozo lectures 30 years ago that Congress is presumed to have intended to use familiar, legal expressions in their familiar legal sense.

So, I would say that on balance, we'd probably come out better in our construction, but let us turn to the legislative history.

As Mr. Justice Marshall pointed out in the Rewis case, it is a very meager or limited legislative history.

The hearings clearly indicate as Nardello says and Rewis says that this was an attempt by Attorney General Kennedy to give a package of organized crime legislation to the Congress.

And there are statements made particularly in the course of the testimony before the Committee by Attorney General Kennedy himself and in a supplementary letter to Congressman Sellar signed by Deputy Attorney General, now Mr. Justice White, indicating that this was an organized crime statute and that shakedowns were used by organized crime.

The interesting thing is that there is no testimony in the record and no claim by Attorney General Kennedy or by his assistant Mr. Miller of the criminal division, that organized crime ever used commercial bribery.

And what there is in this record are two or three very interesting statements which we have quoted in our brief of Attorney General Kennedy in which the subject of bribery, the only times when it is mentioned in the course of the Senate and House hearings is always with reference to the bribery of government officials.

Justice William H. Rehnquist: Mr. Boudin.

Mr. Leonard B. Boudin: Yes sir, Your Honor.

Justice William H. Rehnquist: Do you -- do you feel that the old card decisions of this Court of Mr. Justice Story Hudson, Goodwin and so forth help or hinder you when they say there is no federal common law of crimes.

Mr. Leonard B. Boudin: I don't think they have any help or hindrance.

They are merely statements that we -- federal code doesn't include common law crimes but they are not a reason why Congress does not turn to the common law definition and while the courts don't look to a common law definitions to determine what Congress had in mind and I think actually, that was done to some extent in -- in the Dunn case but I will come to that, Your Honor.

As I say – sorry.

Justice John Paul Stevens: In the legislative history, is there any reference to labor racketeering and bribery of labor officials (Voice Overlap) --

Mr. Leonard B. Boudin: Yes, that the Government's -- that the Government in its brief made reference to some problems of labor corruption but the Court will note, which I have regrettably not noted in my reply brief, that that referred to a different bill, a different bill dealing with immunity which was before the Congress and which referred to labor and the Taft-Hartley law.

It never -- there was never any reference in discussing this bill to labor racketeering.

I hope the Court will read that record to see that I am correct.

Now, the Government says by referring to current books that labor unions are -- labor -- sorry, that organized crime now does use commercial bribery.

But it's a little hard to take a book written in 1972 or 1973 and to draw the conclusion that this Congress in 1961 and these committees were considering a subject they discussed, namely the use of commercial bribery by organized crime.

Chief Justice Warren E. Burger: Well, Mr. Boudin (Voice Overlap) --

Mr. Leonard B. Boudin: Yes, Your Honor.

Chief Justice Warren E. Burger: What is the occasion for -- for the courts to dwell deeply into the legislative history unless it's assumed that the word "bribery" is ambiguus?

Mr. Leonard B. Boudin: Oh, yes.

Well, I think that I must say that the word "bribery" here -- I would prefer to say that the word "bribery" has an absolutely clear meaning and should be considered in its common law definition.

But as I balance the dictionaries and as I realize the history of bribery for so many years and the use in -- in the penal codes and the use by draftsman to which I will refer in a few minutes, you see that bribery has a very special limited official connotation.

One for example, were to look at the federal criminal code as it existed in 1961, one would see that Chapter 11 refers to bribery, graft and conflicts of interests.

And the one section there entitled "bribery" deals with Section 201 with the bribery of government officials.

I would like to be able to say that the situation is absolutely clear.

There is no dispute to what the word "bribery" means, but candor requires that we assess the situation and say, "Yes, this term as used in the statute as ambiguous and that's why we turn to the legislative history and to the other canons which I will refer.

Now, just to continue for a moment if I may, Mr. Chief Justice, with respect to legislative history, as I said, I don't think that given that the -- that a book written currently or even a book written earlier which was not before the Committee and which it didn't consider is very persuasive evidence as to the meaning of the word "bribery" and I prefer, if I may say so, the words of Judge Gurfein who wrote the Brecht opinion on which we rely in the Second Circuit and is described --

Chief Justice Warren E. Burger: We'll -- we'll resume there at 1 o'clock Mr Boudin.

Mr. Leonard B. Boudin: I can finish the phrase later.

Featured:

Erlenbaugh v. United States - Oral Argument

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

Case:

Erlenbaugh v. United States

Media File:

71-839_19721113-argument.mp3

Related Transcript:

71-839_19721113-argument

Transcript:

Argument of Charles W. Grubb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They did not cause any direct use of interstate commerce.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Charles W. Grubb: Oh!

Thank you, thank you.

[Luncheon Break]

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Mr. Grubb?

Mr. Charles W. Grubb: Yes sir.

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

Mr. Charles W. Grubb: No --

Justice Potter Stewart: Okay now the citation --

Mr. Charles W. Grubb: Yes.

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

Justice Potter Stewart: Thank you.

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

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

Mr. Charles W. Grubb: Rewis.

Chief Justice Warren E. Burger: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They never ordered nor subscribed to the Illinois Sport News.

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

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

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

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

Mr. Charles W. Grubb: That is right.

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

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

Thank you.

Chief Justice Warren E. Burger: Mr. Tuttle.

Argument of Allan A. Tuttle

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

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

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

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

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

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

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

The Court of Appeals made the same finding.

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

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

I might say the same as true of Azar.

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

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

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

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

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

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

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

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

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

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

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

Mr. Allan A. Tuttle: Oh!

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

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

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

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

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

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

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

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

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

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

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

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

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

Another 35 copies --

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indeed his examples all involved gambling.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Would that standing alone violate the statute?

Mr. Allan A. Tuttle: Oh!

Standing alone, it does nothing at all.

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

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

One has to hypothesize the subsequent use --

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

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

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

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

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

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

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

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

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

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

I think your time is consumed, Mr. Grubb.

The case is submitted.

Rebuttal of Charles W. Grubb

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

Featured:

Rewis v. United States - Oral Argument

Thu, 23 Aug 2012 18:15:30 +0000

Case:

Rewis v. United States

Media File:

5342_19710119-argument.mp3

Related Transcript:

5342_19710119-argument

Transcript:

Argument of Albert J. Datz

Chief Justice Warren E. Burger: We’ll hear arguments next in Number 5342, Wintfored Rewis and Williams against the United States.

Mr. Albert J. Datz: Mr. Chief Justice and may it please the Court.

Chief Justice Warren E. Burger: Mr. Datz.

Mr. Albert J. Datz: The issue here is whether or not travel in Interstate Commerce is necessary for guilt, whether or not the travel in Interstate Commerce necessary for guilt under 18 United States Code 1952, known as Travel Act, is supplied by the fact that the gambling players or customers cross a state line.

The petitioners here, James Wintfored Rewis.

Justice Potter Stewart: Mr. Datz.

Mr. Albert J. Datz: Yes sir.

Justice Potter Stewart: Your -- you stated the issue and as you understand it and submitted to the Court today, is it purely a question of a statutory construction or are there any constitutional questions?

Mr. Albert J. Datz: I believe it’s purely statutory construction.

Justice Potter Stewart: You don’t question the power of Congress under the Commerce Clause --

Mr. Albert J. Datz: Not in this --

Justice Potter Stewart: -- to enact a statute that could’ve made the travel by the gamblers sufficient to make your clients guilty of a federal criminal offense?

Mr. Albert J. Datz: This is not involved here, Your Honor.

I’m aware of the fact that Congress had just recently passed such a statute in anticipation --

Justice Potter Stewart: Well, in other words, if we disagree with you as to the statutory construction, it could be involved.

We could say, yes, the statute as we read it, does mean that the travel by the players from Georgia into Florida is sufficient to make your clients guilty of a defense under the statutes as it’s written, then there it becomes the question, well, could Congress have the constitutional power under Commerce Clause to do so.

You don’t go though that far?

Mr. Albert J. Datz: We don’t go that far --

Justice Potter Stewart: Because you rest your argument on the words of the statute, is that correct?

Mr. Albert J. Datz: Yes, Your Honor.

Justice Potter Stewart: And my posit --

Mr. Albert J. Datz: Well, tangentially that in the recently passed act, Congress did declare that gambling was a matter of interstate commerce per se, that it affected Interstate Commerce and attempted to regulate it.

I submit and this is not in the brief, nobody's brief had raise it, but that might even be additional factors to consider a comparison with that statute and the Travel Act is what Congress could have done, if it had wanted to.

Justice Potter Stewart: Now you assume it could have.

In any event your argument is based exclusively on the language of the statute and its legislative history.

Mr. Albert J. Datz: Yes, Your Honor.

Justice Potter Stewart: It's purely a statutory argument?

Mr. Albert J. Datz: Yes Your Honor.

Justice Potter Stewart: Alright, thank you.

Mr. Albert J. Datz: The petitioner, James Rewis and Mary Williams were convicted in the Middle District of Florida of the crime involved in the violation of 18 United States Code 1952, known as the Travel Act, that is of traveling and causing travel in Interstate Commerce with and intent to promote, manage, establish, carry on and to facilitate the promotion and management, establishment and carrying on of a gambling activity.

Now, the gambling activity involved was a lottery known as Cuba.

And in this particular case, Cuba is called Cuba because at that time, the winning number was picked through the national lottery in Cuba.

It was picked around 2 o’clock on a Saturday afternoon each week and the people in the State of Florida who were actually violating the laws of the State of Florida and running this “Cuba activity” would wait and get the winning number from Cuba and that of course would determine the winning number of anybody who had played.

Now, this lottery, so far as this case is concerned was operated from the home of Mary Williams at a small community between Jacksonville, Florida and Fernandina Beach, Florida known as Yulee.

This home was about a half a mile from the main highway U.S. 17 which led to Georgia.

Georgia was about 15 miles north of Yulee.

The game was a relatively small game as pointed out in the briefs.

I believe that the take on the particular Saturday which -- in which it was rated was about a $125.00 although concededly that Rewis who we’ll see as the pick up man or operator of the game, had over $1500.00 in his pocket.

But significantly, the winning number fell on the Saturday afternoon and most of the players would pick their numbers on Friday night and Saturday morning.

Undoubtedly, Mary Williams who was operating a selling establishment there from her home was the seller of the numbers.

Rewis was the central figure who picked up the business each Saturday, around noon, before the winning number would fall.

Now, the issue at the trial as here was whether or not travel by some customers who were from Georgia at least 15 miles to the north invested the operation with this travel in Interstate Commerce required by the Travel Act.

However, the theory of the Government at the trial and the theory in the appellate courts is different.

At the trial, the Government contended and the District Judge agreed that the travel of the customers themselves invested this illegal activity with the interstate character necessary for conviction and that the customers or betters themselves could be convicted under the Travel Act.

Now, after the conviction, the Fifth Circuit disagreed with that concept.

Originally, there were 11 people indicted.

One was Rewis’ wife who was excused because of illness.

Four had directed the motions for judgment of acquittal granted by the trial judge.

Two were acquitted by the jury and finally, two who were convicted, their convictions were reversed by the Court of Appeals for the Fifth Circuit on the theory that the only evidence against them was that they were these gamblers, that they were the betters, the customers and that the Travel Act itself did not proscribe the conduct of the better, only the operator of the business enterprise as defined by the statute itself.

Subsection B of the statute, Section 1952 describes the unlawful activity as a business enterprise and they -- short look at the legislative history of that statute shows without any doubt that the intent of Congress was to proscribe the activities of the business enterprise and we submit that the reverse is true that it did not intend to proscribe the activities of the better.

Now, the Government has not contended otherwise here, but the Fifth Circuit in reversing as to the two customers, affirmed of conviction as to the Rewis and Williams, the last two remaining defendants, on the theory that by placing this game, this lottery within 15 miles of the Georgia border, that they had attracted, sort of an attracted nuisance theory.

They had attracted these betters from the State of Georgia to Florida and thus the interstate character was bestowed upon this gambling operation.

Chief Justice Warren E. Burger: What would you say if the gambling establishment had been 15 feet inside the line from Georgia?

Mr. Albert J. Datz: I would say the same thing that the -- it did not violate the statute, this particular Travel Act anyhow.

Now, we might get into another area on the question of use of interstate facilities to promote, manage etcetera a gambling operation because as an example, suppose, they put up a big billboard right at the border and say, “Come over to Florida and participate in our gambling operation” then there would be some question of interstate facility but not travel --

Chief Justice Warren E. Burger: Would that be different if they had a sign --

Mr. Albert J. Datz: I don’t believe so.

Chief Justice Warren E. Burger: -- the other way saying, “Come in and have fun just before you leave Florida.”

Mr. Albert J. Datz: I don’t -- I don’t -- if the operators had traveled in Interstate Commerce to put that sign up and they would have had to that do either themselves or through some agent, then of course, they would be guilty because they are the operators.

They are promoting, establishing, maintaining and carrying on this operation, the exact word the statute condemns.

But the mere placing of the sign at the boarder would not be sufficient or placing the game 15 feet from the boarder would not be sufficient.

But here we have 15 miles and the Court of Appeals said that this attracted these players across the state line and invested the case with the interstate character necessary for conviction.

Justice Harry A. Blackmun: Mr. Datz, the --

Justice Hugo L. Black: What would have attracted to this place?

Mr. Albert J. Datz: I’m sorry Your Honor, I didn’t hear it.

Justice Hugo L. Black: I guess you wouldn’t blame the Court of Appeals that they’re wrong in saying that beyond 15 miles from the boarder, on those good roads, they would’ve attracted the players?

Mr. Albert J. Datz: I would tend to agree Your Honor that it might have had some attraction although and we might discuss this at this moment, the Government says that the predominant people involved were Georgia.

We submit the record would show otherwise that these people came from Georgia for several reasons.

One of the witnesses was bringing sewing to the Mary Williams house, her mother was ill and she brings sewing back in forth.

Other witnesses would come at Jacksonville to buy fish to take the pedal up in Georgia and stop by the game to bet a number.

Justice Hugo L. Black: And others came by down to gamble?

Mr. Albert J. Datz: Yes sir.

Others came for the specific purpose of gambling, but it wasn’t the predominant travel involved.

This is – as an example there were 14 different successive Saturdays involved in the Government’s surveillance of this Mary Williams home.

They made a count in the indictment for each one of those Saturdays claiming interstate travel.

Now, they joined Mary Williams and Rewis, the petitioner Rewis in each of those counts and they would say that one or more people from Georgia would travel on those particular Saturdays.

On those -- this is alleged now even though the trial judge direct -- entered a judgment of acquittal as to four of these people and the jury acquitted the two on the theory that they weren’t even customers because at that time, the trial judge’s theory was that the Government’s theory was that if they were customers, they were guilty.

But on five Saturdays they say one person came from Georgia.

On three Saturdays, they say two people came from Georgia. On four Saturdays, they say that three people came from Georgia and on two Saturdays they said that four people came from Georgia.

Justice Hugo L. Black: Then any more people that come from 15 miles down in Florida?

Mr. Albert J. Datz: That’s all that the record shows Your Honor except for one --

Justice Hugo L. Black: How many were coming from the Florida, I don’t see --

Mr. Albert J. Datz: A lot.

Well, now this is the point.

The -- you have to see the movies which we introduced in evidence of the trial to know this and for this reason, I hesitate to take advantage of the Government, but there were a lot of people from Florida going.

This was not a predominantly Georgia-type of operation and this may become significant in connection with the theory that the Government offers about the purpose of the travel predominantly.

Justice Potter Stewart: So, they were movies introduced to notice?

Mr. Albert J. Datz: Yes, Your Honor, of the surveillance.

Justice Potter Stewart: Of the activity going around --

Mr. Albert J. Datz: Yes sir.

Justice Potter Stewart: -- the house and I suppose they are in the original record which is lodged in the Court, are they?

Mr. Albert J. Datz: Yes sir.

I will show you an example.

They would take the -- they would take this surveillance from 9 o’clock on a Saturday morning to 1 o’clock Saturday afternoon.

They would then say, the agents of the FBI testified that they only took movies of those people they thought would be pertinent to the investigation and this was late in the investigation where they were concentrating on Georgia people.

On one Saturday, four hours of surveillance produced three minutes of movies.

On another Saturday, it produced eight minutes of movies, on the next nine and on the last, seven minutes of movies out of over four hours of surveillance.

Chief Justice Warren E. Burger: What would be your position if the record showed that 60% of all the people who came there were from Georgia?

Mr. Albert J. Datz: I would say, it would be no different, Your Honor that if a 100% came from Georgia.

Chief Justice Warren E. Burger: Well then, why emphasize -- that’s the question, why emphasized the minimal number if the number is irrelevant?

Mr. Albert J. Datz: Because simply that the Government takes the position that we can expound a new theory here and in spite of the language of the statute that says the travel must be to promote the game, that the defendants could be guilty if you apply a combination of the Mail Fraud Statute and the Mann Act and say that if the defendants reasonably expected out of state people to travel to their game for the specific purpose of participating in that gambling operation, then the Government says, “we can now, based on this case, hold them guilty of the offense.”

We submit that that would be contrary to the intent of Congress, from a simple reading of the statute, much less, a study of the legislative history involved.

Justice Harry A. Blackmun: Mr. Datz, help me out on one respect.

I take it the Government concedes now as the Fifth Circuit held that the statute has no application to the Interstate traveler who crosses the state line merely to place the bet?

Mr. Albert J. Datz: I believe that’s correct.

Justice Harry A. Blackmun: Suppose the Fifth Circuit were wrong as to this seller, and that the statute --

Mr. Albert J. Datz: Then --

Justice Harry A. Blackmun: Does your case collapse?

Mr. Albert J. Datz: Yes, it would.

Justice Hugo L. Black: Would you mind telling me if you can as briefly as possible, what you understand to be the difference between your position and the Government position?

I don’t quite get it in the briefs or the argument of today.

Mr. Albert J. Datz: Our position, if it please the Court, is that travel required by the statute cannot be imputed under any circumstances by the simple travel of a customer to a gambling game.

The government maintains that it can be imputed to the gambling game if the operator could reasonably foresee that a better would come to the game and cross state lines in doing so and they carry it further.

A better would do so for the specific purpose of gambling in that game.

Now, the reason for that limitation is this.

Otherwise, and we submit even if that theory is accepted, the whole expanse of the Travel Act would be broadened to the point where the FBI and the Federal Government would be in the minor police court case business.

Every -- this case simply was again 15 miles from Georgia because as the Fifth Circuit said, the operator should reasonably have anticipated that people would come from Georgia to play.

But what of the tourist resort, where people are crossing state lines all the time, Miami, Los Angeles, and New York.

Certainly, every hotel operator can look at his register and see people come across state lines, does the bathroom, card game come within the federal jurisdiction.

Does the prostitute who entertains a guest knowing that he comes from across the state line come within the federal jurisdiction?

The vast number of case increase would be fantastic to accept the Government’s theory under these circumstances.

Justice Hugo L. Black: Is the Government’s theory that anybody who travels along the highway which happens to cross a state line and wants to go to a gambling house subject to jurisdiction of the Federal Government to try for gambling?

Mr. Albert J. Datz: Not the person who traveled along the highway, but the man who runs the house would be subject to federal jurisdiction, the man who runs the gambling house would then be subject to federal jurisdiction.

Justice Hugo L. Black: Is that their only basis for the jurisdiction?

Mr. Albert J. Datz: I submit that it is.

They tried to limit it in what we submit is not a very pragmatic way and says the traveler must have traveled for the specific purpose of gambling or participating in the unlawful activity.

Justice Hugo L. Black: Well, what -- what would that have to do with the guilt of the man that owned the gambling house?

Mr. Albert J. Datz: I submit that it would not, Your Honor.

And certainly under --

Justice William J. Brennan: You mean, the difference is that the operator of the establishment, in this circumstance where he had reason to expect people will come across state lines to visit his establishment for the purpose of gambling, he is himself both a traveler under (Inaudible)?

Mr. Albert J. Datz: Yes, Your Honor.

Justice William J. Brennan: That’s the Government --

Mr. Albert J. Datz: That’s the Government’s theory as I understand it.

Now, this attraction theory limited to the facts of this however becomes even more expansive because here, we have a game that the only -- the only attraction is the fact that it’s 15 miles from the state line.

Every border town then automatically comes under federal jurisdiction if we accept -- if this --

Chief Justice Warren E. Burger: Isn't the Government’s theory a little broader than that?

I take your response to Justice Brennan’s question and the statute says, whoever travels in interstate commerce and then it's the disjuncture or foreign commerce for uses of any facility in interstate commerce, including the mail with an intent to do the following things.

Mr. Albert J. Datz: That’s correct.

Chief Justice Warren E. Burger: Doesn’t that broaden it a little bit?

Mr. Albert J. Datz: No, Your Honor because in this case there was no allegation of use of facilities in interstate commerce.

That was eliminated from this case.

The only allegation in the indictment was the travel.

Now, there was an allegation in the conspiracy count that a violation of Section 1953 which is carrying gambling paraphernalia but that was stricken by the trial judge because there was no evidence.

So, --

Justice Hugo L. Black: You do not assert that, do you that the Government does have authority -- police authority to make gambling a crime, just if you are gambling the crime in the state.

Mr. Albert J. Datz: We do not assert that.

We do not take a position one way or the other Your Honor because as indicated, there is some new legislation that Congress just passed a month or so ago which attempts to do and has a declared purpose that gambling has an effect on interstate commerce.

But I think it would be improper for me to try to anticipate a ruling and that is certainly going to come and that under that statute in this case here.

Justice Hugo L. Black: Is that legislation passed?

Mr. Albert J. Datz: Yes sir.

Justice Hugo L. Black: In both houses?

Mr. Albert J. Datz: Yes sir.

But I might add that even in that legislation, they don’t make all gambling come under federal jurisdiction.

Only big games, what they considered big games and they defined what big games are.

It has to be a certain amount of money involved which is -- doesn’t happen.

Even under the new Act, we wouldn’t be under federal jurisdiction this case.

Justice Hugo L. Black: Your client is the only one?

Mr. Albert J. Datz: The -- my client is Rewis, was the man who would go by Mary Williams’ home and gather the money and to figure out who was entitled to what.

Now, the reason I dodge Your Honor’s question slightly is because the record really doesn’t show who the owner is.

He would be a pick up man.

Justice Hugo L. Black: It’s kind of a secret?

Mr. Albert J. Datz: Yes sir. [Attempt to Laughter] So, now the government attempts to bring an agency proposition in here under Section -- Title 18, Section 2 (b) which says that whoever willfully causes an act to be performed which if directly performed by him or another would be an offense against the United States is punishable as a principal.

But we submit that once you assume that the better is not a traveler, is not a traveler under the statute, then Rewis himself, the operator cannot incur criminality simply because the better, even if he caused the better to cross the line because that would be creating a new offense.

Now, the Government attempts to analogize the Mann Act violation where a woman is enticed into interstate commerce for the purpose of prostitution.

Justice William J. Brennan: Excuse me Mr. Datz.

I’m looking at the Court of Appeals opinion setting aside, that include, do you think that gambling operations for the use of interstate facility by way of the state commerce or those who anticipate (Inaudible).

(Inaudible)

Mr. Albert J. Datz: Yes sir.

Justice William J. Brennan: I assume we (Inaudible)

Mr. Albert J. Datz: No.

Justice Harry A. Blackmun: (Inaudible) and indicted under the use of government facilities, you might not be here.

Mr. Albert J. Datz: I don’t know, Your Honor.

I think that there it becomes a close question, what would the interstate facility be, would it be the highway and that would be the only interstate facility which was used and --

Justice William J. Brennan: And if that’s what your telling me is, you might still be here?

Mr. Albert J. Datz: Yes sir.

Justice William J. Brennan: But to say that we’re not in fact indicted for use against facilities apparently from the Court of Appeals (Voice Overlap) --?

Mr. Albert J. Datz: I submit that that language was thrown in there.

I --

Justice Byron R. White: So, our question, is that the part of construction or (Inaudible)?

Mr. Albert J. Datz: Travel in interstate.

Unknown Speaker: Not a statute that may cover the same defense.

Mr. Albert J. Datz: That’s correct.

Unknown Speaker: Very narrow question.

Mr. Albert J. Datz: I would submit that it is if it please Your Honor.

The -- as I say that --

Unknown Speaker: This is sort of a -- sort of constant (Inaudible).

Mr. Albert J. Datz: Well, there’s no evidence of travel other than these customers.

Unknown Speaker: In your reply brief --

Mr. Albert J. Datz: Oh, that’s right.

There’s no doubt.

There’s no dispute.

Justice William J. Brennan: That you can review this fact that making travelers out of your clients merely because customers come from Georgia into the Florida?

Mr. Albert J. Datz: That’s correct.

Justice Hugo L. Black: Is there any law of this kind that you know of, federal law, relating to gambling in Nevada by going on those who are going on planes?

Mr. Albert J. Datz: No, Your Honor.

The way the statute avoids that is that it defines the “unlawful activity” as any business enterprise which is unlawful in the state where it occurs.

And since gambling is lawful in Nevada, this wouldn’t apply.

To touch very briefly, the Government seeks to analogize on the -- with the Mann Act and the language of Congress there was specifically condemning whoever would persuade, induce, entice or coerce a woman to travel in interstate commerce for the purpose of prostitution.

And when you compare that statute with the Travel Act, you can see that if Congress had intended the result which the Fifth Circuit reached, it could certainly easily have said so.

Likewise, they analogize in the -- with the mail fraud statute and say, well, the victim can supply the mailing under those circumstances but the statutes are entirely different.

The mailing there simply must be reasonably foreseeable in furtherance of execution of the scheme to defraud.

Well, all mailing to -- in furtherance to that scheme would then be proscribed by the statute but here not all travel is proscribed by the statute, only that travel, travel to promote the business enterprise.

Justice Hugo L. Black: Does the legislative history indicate what provoked the passing of this rule?

Mr. Albert J. Datz: Yes it did, Your Honor.

It’s quite extensive and the purpose was to fight “organized crime.”

Justice Hugo L. Black: Organized crime.

Mr. Albert J. Datz: Yes sir.

Justice Hugo L. Black: What about gambling, does it show --

Mr. Albert J. Datz: Gambling is specifically one of the state crimes included within the definition of an unlawful activity.

Justice Hugo L. Black: State crime.

Mr. Albert J. Datz: Yes sir.

Justice Byron R. White: What counts were they convicted?

Mr. Albert J. Datz: They were convicted on the conspiracy count and the were --

Justice Byron R. White: How about Rewis?

Mr. Albert J. Datz: Rewis was convicted on the conspiracy count and --

Justice Byron R. White: Count what?

Mr. Albert J. Datz: Sir.

Justice Byron R. White: This count?

Mr. Albert J. Datz: Yes sir.

In counts of five.

I don’t remember all of them.

He was convicted on eight of the counts.

There were two of them they skipped when they went through it.

Justice Byron R. White: Well, some of these counts say that Rewis traveled and caused (Inaudible)?

Mr. Albert J. Datz: I think most of them say that.

Yes sir.

Justice Byron R. White: I think that’s an allegation that’s used?

Mr. Albert J. Datz: I submit that it’s not Your Honor because the cause, the statute doesn’t use the word cause like the mail fraud statute uses the word cause.

It would only come in by cause under Section 2 (b) of Title 18 which is the aid and abater statute.

But here again, that statute specifically says that it only applies to the acts of a person who causes another to do an act which if he himself had done would be a crime.

But here, the travel to place a bet even if Rewis himself had done, it would not be a crime unless you want to take the anomalous position that he is caused, he is placing a bet with himself.

Thank you.

Justice William J. Brennan: How does the -- how does the Government by carefully saying, the instruction (Inaudible) violates the statute that this Court just to be imposed.

Does the instruction make a distinction that you suggested based on the -- on the indictment?

Mr. Albert J. Datz: No sir because the statute -- only to the statute was read but there was no attempt to define --

Unknown Speaker: The reading of it included that (Inaudible).

Mr. Albert J. Datz: Right.

I don’t recall.

I do believe that there was.

There was no attempt to define.

Unknown Speaker: (Inaudible)

Mr. Albert J. Datz: Yes sir.

Thank you.

Unknown Speaker: Was that ever raised in the Court of Appeals?

Mr. Albert J. Datz: It was not at -- I really don’t remember whether it was raised in the Court of Appeals, but I know the Court of Appeals did not discuss it.

Unknown Speaker: As a matter of fact, they went -- they even in the --

Mr. Albert J. Datz: In their language they put the facility.

Chief Justice Warren E. Burger: Mr. Glazer.

Argument of Sidney M. Glazer

Mr. Sidney M. Glazer: Mr. Chief Justice, may it please the Court.

The issue in this case is whether there is sufficient evidence to show that petitioner has caused other people not themselves to travel in interstate commerce with intent to promote their gambling establishment, whether the people who traveled were runners or customers.

The issue as we see it while involves the construction of 18 U.S.C. 1952 and also 18 U.S.C 2 turns in large part on the facts.

Now, let me just resay -- restate some of the salient facts.

It is --

Justice William J. Brennan: What the indictment charges in which the effects charged, sovereignty of the interstate commerce or use of any facility?

Mr. Sidney M. Glazer: We’ve -- we construe the indictment as charging, traveling in interstate commerce --

Unknown Speaker: And not using any facility.

Mr. Sidney M. Glazer: And causing travel.

Correct.

Unknown Speaker: Not using any facility.

You don’t construe the the indictments charge?

Mr. Sidney M. Glazer: No.

No.

Unknown Speaker: That the Court of Appeals would have to affirm -- be affirmed the conviction under that --

Mr. Sidney M. Glazer: Well.

Unknown Speaker: Use of interstate facility.

Mr. Sidney M. Glazer: I think the Court of Appeals read the statute as -- has construed the statute as meaning that when you travel.

When you travel or cause travel, that includes the use of interstate facilities.

In other words, I think they have used, considered the term travel to embrace the use of interstate facilities.

Unknown Speaker: And access, is that what you mean?

Mr. Sidney M. Glazer: Right.

Unknown Speaker: Or how they tried the same offense?

Mr. Sidney M. Glazer: Right, in other words, they consider that the word “travel” embraces the use of interstate facility such as interstate roads.

Unknown Speaker: Why would Congress amend this statute?

Mr. Sidney M. Glazer: Well, --

Justice Hugo L. Black: For using the telephone or something.

Mr. Sidney M. Glazer: Right.

Using the telephone.

Right.

I think the -- if you go in the history of the statute, I think the history shows that the use of interstate facilities was added to the bill after it was initially introduced to broaden the bill and to cover --

Justice William J. Brennan: That would include use but in some circumstances now others not included --

Mr. Sidney M. Glazer: Right.

Right, that’s correct.

As I recall, the initial was just a travel bill and then on the -- either one of the committees at the Senate House Committee added the use of interstate facilities to the bill as introduced by the Department of Justice.

Justice Thurgood Marshall: Mr. Glazer, according the petitioner, they admit, they were running a lottery operation.

Am I correct that the only way they could escape being indicted under this statute would be that everybody drove up and go by the state and say no business?

Mr. Sidney M. Glazer: Well, it -- if -- let me just go to the facts and I think if I answer the fact, relate the facts, I think it comes a little easier to answer that question and answer in the abstract.

Now, the business that was operated in this case was operated in a private home of petitioner Williams.

It wasn’t a -- it was a private home in a small town and cluster of five private homes.

In other words, it -- the location was such that an interstate traveler wouldn’t just go there by happenstance.

A person would only be able to go to the Williams house and enter the Williams house for gambling purposes if he in fact knew gambling was going on there and if in fact, if the people knew that he was the type of person who they would let in.

Now, as a matter of fact, this -- there’s a little misconception in this case.

There wasn’t a whole group of people who went to the Williams house on the Saturday mornings in which the travel occurred.

There were just a small group of people who traveled each Saturday and as generally the same eight or nine people who traveled and the evidence showed that the people who traveled were repeaters.

In other words, the same people would come each week and some of the people -- some of the people who came, the evidence showed, they didn’t just go and buy a ticket in the Williams house, they came with a water paper and with money and the evidence shows that at least one of them put the money in their cigar box and cigar box was the place for the lottery tickets and the money were kept.

Justice Hugo L. Black: Was it on a highway or through highway?

Mr. Sidney M. Glazer: The Williams house was near a state highway.

Justice Hugo L. Black: Which one?

Mr. Sidney M. Glazer: What would you say?

Justice Hugo L. Black: Which highway?

Mr. Sidney M. Glazer: Highway -- state highway 200 or state highway A1-A which was two blocks from the center of the town and the center --

Justice Hugo L. Black: What town?

Mr. Sidney M. Glazer: Yulee.

Yulee, Florida which was on interstate 17 and most of the people who came from Georgia.

Justice Hugo L. Black: This one goes by Savanna?

Mr. Sidney M. Glazer: This goes on Jacksonville, I believe.

Justice Hugo L. Black: Yes, from Savanna to Jacksonville.

Mr. Sidney M. Glazer: I don’t know where it started.

And most of the people who came from Georgia came down interstate 70 -- interstate 17 and turned on Highway 200 and then there’s a little access road near the Williams house and they drove up to the Williams house and stayed a very short time.

They would stay about 15 minutes and then they would leave.

Now, that in itself is significant.

The lottery itself -- the lottery itself -- the winner of the lottery wasn’t determined until two o’clock but this people would come there on Saturday morning, stay about 15 minutes and leave.

Now, --

Justice Hugo L. Black: That’s pretty short turn around, isn’t it?

Mr. Sidney M. Glazer: Right.

It was -- in other words, their journey would -- they were just -- they would cross the Georgia border into Florida and mainly stay at the house for a short time and turn around and come right back into Georgia.

Chief Justice Warren E. Burger: Well, they didn’t play any games, gambling games in the house, did they?

Mr. Sidney M. Glazer: No, there was evidence -- there was evidence by a person who worked in the house that on occasion -- she would -- she said she sold tickets to people that came to the house and she also said that some of the people who came, these people who were the Court of Appeals found were gamblers and not runners.

She testified that those two people when they came under four or five occasions, they didn’t just simply buy a ticket from her but that they brought a water paper and one of them brought -- just brought at one point at least $80.00.

Justice Hugo L. Black: What were the tickets for, just to come into the house?

Mr. Sidney M. Glazer: No, no.

They didn’t come with tickets, they came with --

Justice Hugo L. Black: Well, those that bought tickets, what they were --

Mr. Sidney M. Glazer: Well, the woman who said she sold tickets, in essence, said, she sold them a number.

They would pick a number, say 19 and pay an amount, say from 50 cents to $5.00 and if at 2 o’clock in the afternoon, 19 was the number drawn in Cuba, then you’d win 60 times what you bet.

Chief Justice Warren E. Burger: These were conventional lottery tickets, I suppose.

Mr. Sidney M. Glazer: Well, the tickets were written out in long hand.

I mean there was no written ticket.

So, there were somebody who would say, number 19 and ticket would be written up.

Unknown Speaker: (Inaudible)

Mr. Sidney M. Glazer: It was really a numbers game, a numbers game, lottery in a broad sense, but specifically a numbers game.

Now, the evidence we submit warrants the conclusion that petitioners caused the travel of these people as we said before, you just couldn’t stumble upon this place.

You had to know when to come on the Saturday morning and this warrants the inference that there was prearrangement that the people came because they arranged with the operators to come.

Justice Hugo L. Black: Does the record show how they cause it?

Mr. Sidney M. Glazer: No, there’s only circumstantial evidence.

There’s no direct evidence of any advertisement that anybody said in Georgia, come down to Mrs. Williams’ house in Florida and gamble.

No, there’s no direct evidence.

The only --

Justice Hugo L. Black: What is the evidence, the indirect evidence outside the fact that the establishment was running?

Mr. Sidney M. Glazer: The indirect evidence is the location of the establishment.

The fact that the only -- the people who went there were habitual travelers.

That the people who went there were few in number or wasn’t -- just anybody couldn’t go and the fact that they came back over and over again, so you can warrant the inference that was implied invitation to come again and there’s also the fact that you had to know what time to go there.

In other words, the -- the people generally came on a short period of Saturday morning, had to get there before noon.

Justice Thurgood Marshall: Mr. Glazer, suppose somebody told somebody that lottery was going in the way, and a guy stops by and says I am from Georgia, and well, he hit the lottery that day, and he went back to Georgia and told everybody in Georgia and everybody in Georgia get in there to gamble, would the way would be guilty?

Mr. Sidney M. Glazer: They might be guilty.

I’d say, they would definitely be guilty if after the person came the first time, they in essence said come again.

Justice Thurgood Marshall: That’s not in my case.

Mr. Sidney M. Glazer: I think if they could foresee.

I think that’s a more difficult problem than you have to reach in this case.

If --

Justice Thurgood Marshall: Oh, I’m trying to get to my point eventually.

Mr. Sidney M. Glazer: No.

No, I’m going to answer.

I would say, yes.

Justice Thurgood Marshall: (Inaudible) people if you’re from Georgia, I don’t want you back.

That’s the only way you can say, is that right?

Mr. Sidney M. Glazer: Well, if a person from Georgia came to this gambling establishment and the operators didn’t know that this particular person came from Georgia, I would say they wouldn’t violate the statute, but --

Justice Thurgood Marshall: If a man comes and said, “I’m from Georgia and I just left Georgia and I want to play a number.”

The only way for him to escape under this statute as interpreted by you is the same, “We’ll take no Georgia money.”

No money between the state line.

Mr. Sidney M. Glazer: He would take a risk.

He would take a risk, if he took the Georgia money, the Georgia better.

However, I don’t think that’s this case.

I think, this case, the circumstances are such to make it come within 18 U.S.C. 2 (b) which makes a -- makes it a, makes a person criminally liable when he causes an act to be done which if directly performed by him would be a federal offense.

In other words, 18 U.S.C. 2 (b) was added in 1948 to the criminal code to permit deletion of cause or procurer from the other criminal statutes and the reviser’s note makes clear that the purpose, the purpose of this provision was to make, remove all doubt that when a person causes the commission of an element of the offense, causes an innocent person to commit an element the offense, that constitutes a violation.

Justice Hugo L. Black: If it’s done by a man from Georgia?

Mr. Sidney M. Glazer: Right.

Right if he --

Justice Hugo L. Black: And not from Florida?

Mr. Sidney M. Glazer: Right.

In other words, the easiest illustration, the easiest illustration of how you can cause somebody to come would be a situation where there would be a direct -- suppose a narcotics case then.

There was a seller down in Florida and a purchaser in Georgia and they made specific arrangements for one person for the Georgia citizen to travel down to Florida.

There would be -- it would be clear that by the prearrangement, the seller was causing, causing the person to travel in interstate commerce.

The thing becomes complicated because generally -- generally, in a crime, for example, this statute makes it a crime to travel in interstate commerce to commit extortion.

Justice Hugo L. Black: Travel from state to state would be better than that?

Mr. Sidney M. Glazer: What?

Right.

Justice Hugo L. Black: Travel from state to state, but this man wasn’t engage in interstate commerce, as I understand it.

Mr. Sidney M. Glazer: No.

He -- the statute makes it a crime for him to travel -- travel from state to state with intent to commit extortion.

If for example --

Chief Justice Warren E. Burger: Cannot be held – it cannot we sometimes held that restaurants are engaged in interstate commerce because interstate travelers stopped --

Mr. Sidney M. Glazer: In the Heart of Atlanta Motel, well, that was in a companion case, the Heart of Atlanta Motel case, that was a restaurant involved where interstate travelers stopped and this Court held that that activity was in affect commerce and was subject to federal regulation.

Justice Hugo L. Black: Enters where people had to eat?

Mr. Sidney M. Glazer: Right, right, right.

Justice Hugo L. Black: I don’t suppose this is an eating place, I gather.

Mr. Sidney M. Glazer: No, this is -- this is an eating place.

The point I was trying to make --

Justice Byron R. White: The Heart of Atlanta of course involved quite a different question.

The language of the statute was not an issue there but the question in that case was the power of Congress to enact it.

Here, what we’re involved with is the language of the statute?

Mr. Sidney M. Glazer: Right and it’s our position that the language of this statute and its history shows that it interacts with the 18 U.S.C. 2 and if for example, if a person commits extortion and by committing --

Justice William J. Brennan: (Inaudible) that he will cause people to come --

Mr. Sidney M. Glazer: Right, right.

Justice William J. Brennan: What was the evidence here would support the Government’s burden upon looking.

Mr. Sidney M. Glazer: Well, it seems to us that the continuous business conducted at this establishment with awareness that people from Georgia were coming that the same people --

Justice William J. Brennan: Well, I would suppose that these petitioners were aware that their customers were from Georgia?

Mr. Sidney M. Glazer: Well, yes sir.

I would say that the proof did show that.

As to Mrs. Williams, she was related to one of the individuals that traveled and the other, there was another, there were two Williams in this case, and one Williams, Charlotte Williams was a close friend of her, so she was aware of that.

As far as Rewis is concerned, he would arrive at the place at a time when there were a lot -- when the car is parked there included Georgia cars.

So, --

Justice William J. Brennan: I gather the Government doesn’t argue that (Inaudible) this petitioner was (Inaudible), because of any statement, but rather they are caught after traveling because of Section 2 provision, cause of an act which is performed by government in effect to that.

Mr. Sidney M. Glazer: That is correct, that is correct.

And under 18 U.S.C. 2, three or four Courts of Appeals have held that when an employer of a gambling operation employs individuals who live in another state and these individuals travel from say Illinois to Wisconsin that that violates the statute.

I would assume that that --

Justice William J. Brennan: That had to be vague that an employee traveling for that purpose, why violates the statute and they are employees who cause that, do that travel from state to state, therefore principally under Section 2?

Mr. Sidney M. Glazer: Yes, we would think it was under 2 (a) that he would be an aider or abater.

In other words, 2 (a) seems to apply to a situation where all the parties are clearly guilty of a violation whereas 2 (b) applies to the situation where the jurisdictional element or an element of the crime maybe committed -- maybe done by somebody who himself may not be guilty of an offense.

Justice Harry A. Blackmun: That in fact is the Bass case and the related cases involving travel from Memphis to West Memphis --

Mr. Sidney M. Glazer: Right that is correct.

Justice Harry A. Blackmun: -- by employees with the employees with the employer living in Memphis as I recall?

Mr. Sidney M. Glazer: Right, the Bass case and the Zizzo case and I think the Barrow case.

Now, the problem of causation as I said before, when -- if you have an extortion where the extortion -- extortionist lives in one state and he extorts money from somebody in the other state and in the course of the extortion, that person travels interstate commerce or uses an interstate facility, I think it’s easy to see that the fear -- the fear induced by the extortionist causes the jurisdictional element which completes the offense.

Justice William J. Brennan: Except he didn’t use the (Inaudible) as far as the statute is concerned?

Mr. Sidney M. Glazer: Well, we don’t think they’re innocent as far as, for example two of them, Fuller and Nightingale, it was a Government’s position that they were employees and the evidence showed that they didn’t just merely cross the state line and buy a ticket --

Unknown Speaker: They were indicted too.

Mr. Sidney M. Glazer: Right, they were indicted and -- they were indicted, convicted and the Court of Appeals set aside the conviction.

The Court of Appeals -- on the ground that the evidence was insufficient to show that they were --

Unknown Speaker: They’re innocent.

Mr. Sidney M. Glazer: To show that they were runners.

They were anything more than mere betters.

Justice William J. Brennan: Well, mere betters what -- isn’t that -- can a better be guilty if he comes every Saturday and bets in some game for $75 (Inaudible)?

Mr. Sidney M. Glazer: Well, I don’t think the evidence -- I don’t think the evidence was $75.00 a week.

The evidence showed that Rewis had $1500.00 in his pocket and I think you can infer from the evidence that this is just one of the places that Rewis stopped at and in the Court -- and there’s also evidence he had -- in the course of the raid, they picked up a recapitulation sheet, exhibit 41-C which indicated that there were three different groups of sellers totaling at least 20 individuals in addition to runners and pickup man in this operation.

In other words, --

Unknown Speaker: I just --

Mr. Sidney M. Glazer: No, no.

And I also think that sometimes --

Unknown Speaker: How do you spend those $5.00 and $153.00 to the whole bet?

Mr. Sidney M. Glazer: Well, that was the largest bet this individual who said she sold tickets at the house, she said, the largest individual -- she bet she took on one number was $5.00.

She said that --

Unknown Speaker: Well, anybody, getting back to the 2 (b) --

Mr. Sidney M. Glazer: Right.

Unknown Speaker: I gather the government doesn’t claim the input to that, is that people who have used the state line for all instances, is that right?

Mr. Sidney M. Glazer: If the people were induced to cross state lines were all innocent, we think we still could prevail under 2 (b).

Justice Byron R. White: Well, you have to go through it in this case --

Mr. Sidney M. Glazer: Well, the Court of Appeals' elements, that’s correct.

Right.

The Court of Appeals -- the Court of Appeals.

Justice Byron R. White: The Court of Appeals held them all innocent?

Mr. Sidney M. Glazer: The Court of Appeals held them innocent, ruling that a better who traveled in interstate commerce couldn’t violate 18 U.S.C. 1952.

Now --

Justice William J. Brennan: Now, if that so, this speaks or poses an act to be done which is directly performed him or by another would be an offense against the United States?

Mr. Sidney M. Glazer: Yes.

Justice William J. Brennan: Before the Court of Appeals that these betters did not committed the offense in the United States, right?

Mr. Sidney M. Glazer: Yes, that’s correct.

Justice William J. Brennan: How do you hold Rewis?

Mr. Sidney M. Glazer: We hold Rewis under 2 -- when 18 U.S.C. 2 (b) was enacted, the revisers at least thought and this is set forth on page 12 of our brief that Section 2 (b) “removes all doubt that one who puts in motion or assist in the illegal enterprise, but causes the commission of an indispensable element of the offense by an innocent agent or instrumentality is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense.

In other words, even though you did everything, but one particular element but you got somebody else, to me the best case of the -- the best illustration of this case is the Kelly case which is cited in our brief.

And the Kelly case involved the use of telephones and the defendant there made an arrangement whereby the betters would use the telephones and the Court of Appeals for the Second Circuit found that this -- that , that violated the statute when that he causes -- caused the use of the interstate facility when the betters used the telephones.

Basically, to sum up, we think that just as if Rewis and Williams had advertised in Georgia or people who would come from Georgia to Florida and people who read their advertisement came to Flor -- from Georgia to Florida with a specific purpose to betting and they did so on the basis of reading this advertisement, “Come to Florida and bet,” that in such circumstances, we think Rewis and Williams would bring about or cause the travel of the better.

That that situation is similar to the situation here, but for, but for the conduct of Rewis and Williams in operating this lottery and making it possible for these people to come on a continuous basis to their operation, there would have been no gambling.

Justice Thurgood Marshall: Is that the only lottery place in upper Florida?

Mr. Sidney M. Glazer: I would assume it isn’t.

I would assume it isn’t in which --

Justice Thurgood Marshall: But why is it so unique and I’m still waiting for any evidence to show that (Inaudible) anything to entice the people to come by.

All the things that will (Inaudible).

Mr. Sidney M. Glazer: Well, they ran a place, they ran a place.

The people who would came were by circumstantial evidence indicates that people who came were aware of the fact that in order to wager or to participate in this operation, you had to come at a particular time, you had to come to a private house --

Justice Thurgood Marshall: But how can you get any after that?

All you got is circumstantial evidence that causes the Georgia license plates to show up.

How many?

Mr. Sidney M. Glazer: Well, there were -- on each Saturday, as I understand it, the average number of people who showed up whether from Georgia or Florida were from eight to 16.

But eight, I understand, was the average number.

Justice Thurgood Marshall: From Georgia?

Mr. Sidney M. Glazer: No, no.

The total number of people who came were average eight.

Justice Thurgood Marshall: And how many from Georgia?

Mr. Sidney M. Glazer: And, and -- there were the same people didn't come every week.

They came four or five times but apparently, at least eight to ten of them came from Georgia who they could identify.

Justice Hugo L. Black: All day?

Mr. Sidney M. Glazer: What, no.

Justice Hugo L. Black: They came in all day?

Mr. Sidney M. Glazer: No, they just -- they would come in at a particular time on Saturday morning.

They would come at Saturday morning, usually from ten to twelve and they would stay a short time and --

Justice Hugo L. Black: They’d operate all day?

Mr. Sidney M. Glazer: No.

Just -- it would just to be over -- it would just operate on Saturday morning which is the --

Justice Hugo L. Black: You have evidence that they caused them to come?

Mr. Sidney M. Glazer: What?

Justice Hugo L. Black: You have evidence that they caused them to come as I understand it.

It’s not the fact that they did come.

Mr. Sidney M. Glazer: Well, they did come -- they came on a regular basis.

They came at a particular time.

They could -- they came to a place where which was a private home and the only they came to a place that only somebody who was aware of the fact that this -- that you could bet, that betting was going on there, so from that point of view, we consider it all prearranged.

Chief Justice Warren E. Burger: Mr. Datz, would it make any difference to your case or your position if the evidence showed they did a $100,000.00 worth the business every Saturday or a $100.00 business every Saturday?

Rebuttal of Albert J. Datz

Mr. Albert J. Datz: No sir.

Chief Justice Warren E. Burger: The volume has nothing to do with the violation?

Mr. Albert J. Datz: Not under this Act.

Frankly, under the new Act just passed it does, but not under this act.

Justice John M. Harlan: What sentences did these men got?

Mr. Albert J. Datz: Rewis got five years, Mary Williams got three years.

Unknown Speaker: On each count?

Mr. Albert J. Datz: Yes, to run concurrently.

Unknown Speaker: Concurrently, so any crime that is --

Mr. Albert J. Datz: If any conviction is good, then it’s moot.

If I may point out briefly, the significant difference between the Government and our position as I see it here, is the interpretation of Section 2 (b) of Title 18.

Now, whoever causes another to do an act is limited.

Title 18, Section 2 (b) is simply an agency principal relationship.

You can’t create a new private John Doe who had nothing to do with this case, cause these people to travel from Georgia to Florida, he wouldn’t be committing a crime because the people themselves were not committing crimes.

Unknown Speaker: Well, what about (Inaudible)

Mr. Albert J. Datz: But that’s only if --

Unknown Speaker: Or is that does apply to the current situation?

Mr. Albert J. Datz: But that doesn’t really apply to the factual situation here.

Thank you.

Justice Hugo L. Black: Was there any evidence from your view point from which it could be found that these people did cause these people to come to Georgia except that they came?

Rebuttal of Sidney M. Glazer

Mr. Sidney M. Glazer: No, Your Honor.

Chief Justice Warren E. Burger: Do you think that the fact that they came repeatedly and were known as -- has probative force?

Mr. Sidney M. Glazer: I don’t believe that the record will bear that out.

That assumption of fact is actually of the 14 Saturdays of surveillance, the most repetition was one person came on four different Saturdays, but even if it were so, was so, then I submit, it would have no force.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

United States v. Nardello - Oral Argument

Fri, 18 Nov 2011 02:32:51 +0000

Case:

United States v. Nardello

Media File:

51_19681112-argument.mp3

Related Transcript:

51_19681112-argument.xml

Transcript:

Argument of Griswold

Chief Justice Earl Warren: Number 51, United States, appellant versus Joseph Francis Nardello and Isadore Weisberg.

Mr. Solicitor General.

Mr. Griswold: May it please the Court.

I move the motion pro hac vice for the purpose of arguing this case of Mr. Philip A. Lacovara of my staff who was a member of the Bar of the State of New York.

Chief Justice Earl Warren: Motion is granted.

Mr. Lacovara.

Argument of Philip A. Lacovara

Mr. Philip A. Lacovara: Mr. Chief Justice, may it please the Court.

This case which is here on direct appeal from the United States District Court for the Eastern District of Pennsylvania grows out of the efforts to uncover and prosecute the members of a multi-state ring which specializes in extorting money from victims upon threat to accuse them of homosexual activities.

The indictments in the present case were returned under a federal interstate racketeering statute.

The so-called Travel Act Section 1952 of the Federal Criminal Code which makes it a federal offense to travel in interstate commerce with the intent to carry on an unlawful activity including extortion in violation of the laws of the state in which committed and thereafter to perform an act promoting that objective.

The indictments in the present case were on appellee's motion dismissed by the District Court.

The Court found first that in using the term extortion, Congress intended that the term should track closely the legal understanding of that term under state law.

But that in Pennsylvania, the crime captioned extortion is the common law form of extortion, that is the crime committed by a public officer who takes an unauthorized or excessive fee.

In that sense, the appellees had not been alleged to be public officers and in fact were conceded not to be.

The indictment failed the state in offense against them.

It's the Government's contention that this statute uses the term extortion and the other terms that are listed in the statute generically, so that conduct has referred to a sort of criminal activity, extortion at acts and that interstate travel to promote this type of act is reached by the federal statute so long as the conduct is made unlawful by the law of the state whatever the particular label the state happens to attach to it.

The issue before the Court this morning is whether the Government's construction rather then the District Court is the correct one.

The Travel Act which was enacted in 1961 is part of a series of measures to combat organized crime and racketeering makes it a general offense provides generally that interstate travel to promote an unlawful activity as subsequently defined is a federal violation.

Interstate -- unlawful activity could be in violation of the law of the state or of the United States and for relevant purposes the statute makes it a federal violation to travel in interstate commerce to carry on extortion in violation of the laws of several -- of a particular state.

The allegations in the present indictments alleged that at least one of the conspirators traveled in interstate commerce from Chicago to Philadelphia in two cases and from Camden, New Jersey to Philadelphia, and the third with the intent to promote an activity unlawful under Pennsylvania law.

The controversy in this case arises from the fact that under Pennsylvania law, extortion at conduct is termed blackmail rather than extortion but Pennsylvania does have as I mentioned the continuation of the original ancient common law and notion of extortion, the acceptance by public officer of unlawful fees.

The District Court on its analysis of the language of the statute and its legislative history concluded that Congress intended when it spoke of extortion and violation of the laws of the state in which committed that the federal term should track closely the legal understanding of that term in state law.

We contend that this construction of the statute, this serves the remedial objectives of this federal legislation and in supportively narrows its plain meaning.

I should like to turn first to the background and purpose of the statute.

I mentioned that this was one of a series of measures submitted by the Department of Justice in 1961 to bring federal resources and the federal criminal process to bear on a problem which had outgrown the capacity of state and local governments to deal with.

And that is the situation which we've encountered through the ability of the modern organized syndicate criminal to conduct illegal operations from a remote state sending minions back and forth across state lines to carry out various forms of illicit activity using the long distance telephone to manage or carry out various forms of violations of state laws.

This mobility and this diffusion of organization made it extremely difficult for state and local authorities to investigate or to prosecute violations of their local laws.

Now, the statute as it's clear both from its language and its legislative history does not pruport to close off the channels of interstate commerce to all attempts to violate state law because its focus was organized crime and racketeering, the organs of communication from one state to another were to be interrupted for those who would travel in commerce to carry out unlawful activities only with respect to activities which years of investigation by state and local crime commissions by the Federal Government and by Congressional Committees had shown to be the mainstays of organized crime.

And for that reason, the term “unlawful activity” in the Travel Act is defined to include only business enterprises involving gambling, prostitution, liquor and narcotics violation and extortion, bribery and arson in violation of state or Federal law.

These were the activities that these investigations had established to be one of the principal occupations of the organized modern nationwide criminal operations.

The question before the Court is what Congress intended to reach by using the term “extortion in violation of the laws of the state in which committed.”

The District Court has held that in Pennsylvania and therefore as it recognized in at least 12 other states which also do not condemn extortionate activities under the heading extortion but instead maintained some continuation of the common law notion of extortion that this federal statute reaches only travel in interstate commerce into a state by a public official of that state to accept an unauthorized fee.

Now, it is our contention that this narrow construction by the District Court is plainly an error.

Abusive office was not one of the principal forms of violations that motivated Congress to pass this federal legislation dealing with interstate travel to promote extortion.

There are several reasons that make that clear.

First, it's unlikely that a public official of a state is going to be a member of an organized criminal syndicate but in any event, his opportunity in the District Court's analysis to commit extortion in the common law ancient sense derives from his position as a public officer within the state.

And therefore, he is not the type of individual who is unlikely to be amenable to investigation and prosecution by the local authorities.

Justice Potter Stewart: In reading your -- in reading the briefs of this case, I was impressed by the -- negatively impressed by the seeming lack of legislative history bearing really a very explicitly on this question is -- and I assume there is not, is that correct?

Mr. Philip A. Lacovara: Yes, the Senate or House hearings do not reveal any specific focus on the question of what extortion was meant.

However, I think it is significant that in the course of wending its way through Congress, this Bill was sought to be amended by the House in a way in which I think will illustrate the actual intent and focus that Congress had in using the term extortion.

As I mentioned, the unlawful activities are defined to mean four illegal business operations as well extortion, bribery, and arson.

The House Committee subsequently ratified by the full House tried to limit extortion and bribery to offenses committed in connection with the illegal businesses otherwise defined in the statute.

The Department of Justice vigorously objected, the Department of Justice had sponsored this measure.

The Department vigorously objected to that amendment and wrote to Chairman Celler of the House Committee that this amendment would eliminate from the purview of the statute extortions which were unrelated to the other business enterprises mentioned in the statute but which were and had historically been major forms of extortion perpetuated by organized crime and this letter from the Justice Department explicitly mentioned that such forms of extortion practice by organized crime include shakedown rackets, shylocking or the charging of usurious interests on loans, and labor extortion.

Justice Byron R. White: Where is that -- what part of the brief?

Mr. Philip A. Lacovara: Letter is not in the brief.

It's quoted --

Justice Byron R. White: Reply brief.

Mr. Philip A. Lacovara: In the record?

No, there was -- this case arises on dismissal of an indictment.

There's no record.

Justice Byron R. White: There's no record.

Mr. Philip A. Lacovara: The -- it is quoted in a law review article which we cite the Palner article in Volume 28 of the Brooklyn Law Review.

It apparently was not published as part of the hearings or the committee reports because it was submitted after the reports had been printed by the various committees.

All that we have is the Conference Report which merely states the conclusion that the Senate had agreed to the House insistence.

Justice Byron R. White: Do those records do have (Inaudible)?

Mr. Philip A. Lacovara: The article was written by an attorney of the Department of Justice.

I realize that may seem self-serving.

We have no reason to doubt his good faith but that is the only place that --

Justice Byron R. White: But where did he get it from?

Mr. Philip A. Lacovara: Apparently, I think that's --

Justice Byron R. White: Can you get it again?

If you want to use a letter like that, you must find it in the department's files.

Mr. Philip A. Lacovara: We -- I'm sure we can obtain the copy of that letter and submit it if the Court wishes to see it, if the Court wishes to see the full letter.

Justice Byron R. White: Well I'd be happy to look at it, if you want us to look at any of it, I would think you would furnish the whole record.

Mr. Philip A. Lacovara: Very fine, I'll make final arrangements to do that.

But it was in that context that the conference committees deleted the limiting language and restored the bill to its fuller scope, we don't rely solely on that one isolated and perhaps not terribly accessible piece of legislative history.

Our basic argument as we went to in great length in the brief is that the background of the legislation shows that we're dealing with the types of activity engaged in by organized crime syndicates and public officer exactions are not a principal form of this activity.

The other terms used in the statute also are clearly used in their generic sense.

The term gambling or narcotics violations clearly doesn't and as the hearings themselves will show, it does not point only to a section of a state law which is captioned gambling or narcotic violations.

This is an effort by Congress to refer us to categories of crime which if made unlawful by the state where the activity is going to be conducted.

Justice Potter Stewart: Well now, extortion is linked here with bribery and bribery involves by definition public officers, doesn't it?

Mr. Philip A. Lacovara: Yes.

That I think underscores the soundness of our position because under the District Court's approach, the use of those two terms side by side in the statute would make one of them superfluous in at least a third to a quarter of the states.

Justice Potter Stewart: I don't understand that, was arson -- was arson added later?

Mr. Philip A. Lacovara: Arson was added in 1965.

Justice Potter Stewart: The original -- the original language was extortion or bribery.

Mr. Philip A. Lacovara: That's right.

Justice Byron R. White: In any event which is the brief to the letter you and I were discussing?

Mr. Philip A. Lacovara: Except for the citation in the -- of the law review article, there is none.

Chief Justice Earl Warren: We'll recess now, Mr.

Lacovara, you may continue your argument.

Mr. Philip A. Lacovara: Thank you Mr. Chief Justice.

I'd like to resume by returning to the point that Mr. Justice Stewart raised in his question noting the relative sparseness of the legislative history on the question of what Congress understood by the term extortion.

I began to respond to the question by suggesting that since Congress dealt in a clause in which it uses the term extortion, with another offense which it termed bribery that the District Court's analysis would in Pennsylvania and about at least seven and perhaps many more states made one of the other of these two terms redundant because in Pennsylvania, the crime caption extortion is simply a form of bribery.

That I think is not the limit of the fair inferences that can be drawn from the legislative history.

I mentioned earlier that this legislation was considered along with the package of other measures that have been submitted in 1961 to deal with the subject of organized crime.

Two other statutes which were submitted and being considered by Congress of the very same time, the hearings in both the House and the Senate were held on a series of measures and two of the bills that were before Congress at the time, used the term extortion in the sense that we suggest that Congress understood in passage of the Travel Act.

The first was a measure to amend and expand the Fugitive Felon Act which at the time was limited only to those who had fled from states to avoid prosecution for certain defined felonies, certain enumerated felonies, one of which was extortion under -- by threat of violence.

Another one of the measures that Congress was considering at the very time that it had Travel Act's terms before it was a proposal to provide for a grant of immunity in situations where there was an arguable violation of either the Labor Management Relations Act or the Hobbs Act which punished opposite sides of the same coin.

The Hobbs Act punishes extortion presumably covering labor extortion and the 1960 --1947 Labor Act makes it an offense for an employer to give money or thing of value to a union official apart from his wages.

So that there was before Congress at the time it was considering the Travel Act two pieces of legislation which used the term extortion in the precised generic sense of a coercive exaction under threat or force or accusation that had been used to underlie the earlier measures.

Chief Justice Earl Warren: Am I correct in my belief that nowhere in the statutes under consideration did Congress use the word blackmail?

Mr. Philip A. Lacovara: That is correct sir.

That's the source of the difficulty.

We have suggested on a related alternative argument that blackmail has for a hundred years or more have been considered a synonym for extortion and indeed the Pennsylvania courts and the Pennsylvania legislature used these terms interchangeably and in cases which the District Court saw fit to reject as ill considered, the Pennsylvania State Courts have in fact sustained indictments drawn under the blackmail statute's alleged in the instant indictments even though those indictments in the State Courts charged extortion by accusation of heinous crime rather than blackmail as the statute has captioned.

Chief Justice Earl Warren: Have you made any study to determine how many states consider the facts in this case as being extortion?

Mr. Philip A. Lacovara: Yes.

In our appendix to our brief, Mr. Chief Justice, we set forth that there are at least 13 states which punish this form of conduct under a blackmail statute and at least seven of those states, extortion is a separately defined offense but it relates to the common law form of extortion.

Now, in it, we also set forth that there are other classifications of extortion at conduct in other states, robbery, threats, and menaces.

In a number of those other states, similarly, there is a crime expressly called extortion that does relate either to the public officer exaction or to some other anachronistic, we might say, notions of extortion in five or six states, the only offense called extortion is the charging by a Railroad company of an unfair tariff and presumably under the District Court's mechanical analysis, the only offenses that would be reached by the Travel Act in those states would be the submission by mail of a bill by a railroad company of an inflated charge.

That is not in any way related to the organized crime focus of this measure.

We did not collect in our appendix all of the possible permutations of relating the categorization of the statutes.

You'll -- you will notice Mr. Chief Justice that the last category on page 30 and 31 of our brief lists statutes which make some mention in their caption of extortion.

They -- some of them are however hybrids like fear used to extort or larceny by extortion.

In some of those states, there is a crime caption simply extortion which is the public officer exaction.

How the District Court would deal with these we can't imagine but this confirms we believe that we should be looking not to labels but to substance in interpreting the statute.

The focus of the congressional concern in this area was with the type of activity which years of investigation had shown organized crime syndicates customarily resorted to in maulting their profits.

They had not be shown and no one has yet suggested not even the District Court that acceptance of unlawful fees is a traditional form of organized crime.

We consider rather that Congress used the term extortion as it used the other terms in the statute in its generic sense as relating to a category of possibly unlawful conduct i.e. an attempt to obtain money or property from an individual by a threat either to commit injury upon him or his family or his property or to obtain some advantage or to accuse him of a heinous crime or some other indictable offense.

The District Court supported its analysis by pointing to the language of the statute and to the undisputed congressional policy of respecting the variations in state criminal law definitions.

Neither of these factors however supports the District Court's analysis.

First, the language of the statute does not even say that it is an offense to travel in interstate commerce to engage in activity in violation of extortion laws of the state.

We might have a somewhat graver problem in accepting the government's construction if that were the usage but we have instead an act which punishes interstate commerce to promote extortion in violation of the laws of state in which committed.

We suggest, this is quite susceptible and is infact of the construction and is in fact the intended construction of meaning that Congress was concerned about a category of activity and so long as that activity, that type of activity is actually made unlawful under the laws of the state in which the activity is committed.

It is reached by this federal statute.

Similarly, the congressional awareness that the contours of criminal activity will vary from state to state even within a particular type of activity, in no way suggests that the label that the particular state happens to affix in outlawing some forms of that activity should rigidly control the interpretation of this federal statute.

The exchanges in the legislative history relied on by the District Court related to gambling, it was expressly recognized that for several reasons, an individual who operated a lawful gambling business in Nevada would not be in violation of this statute if he traveled to promote that activity.

Now, the District Court somehow extrapolated from that that Congress intended that the definition of the terms used in the federal statute should track closely their legal understanding under state law.

The cited passage in no way supports that no one either on the committee or any of the witnesses testifying indicated that whether or not the gambler, the Las Vegas gambler's travel was lawful was going to turn on whether or not his activities were dealt with under the statute talking of gambling.

It was assumed throughout the legislative history that even if the state had a statute outlawing a lottery under the statute gambling and outlawed book making separately under a statute entitled book making.

A bookmaker who travels in interstate commerce would still be in violation of the statute.

Justice John M. Harlan: Is this the first time that's the question has arisen in the District Court?

Mr. Philip A. Lacovara: Yes, there have been other prosecutions under the extortion branch of this statute including some for extortion of conduct engaged in, in states which punish only blackmail, or punish a crime called blackmail and which have instead under the heading extortion the public officer exaction case conduct.

There's a reported decision to that effect, United States versus Hughes in 385 F.2nd where the extortion was conducted in North Carolina which is one of the states listed in our blackmail list and which also has an extortion statute similar to that in Pennsylvania.

There was no challenge in that statute to the reach of the extortion term of this legislation.

Justice Hugo L. Black: When was the law passed?

Mr. Philip A. Lacovara: This Act was passed in 1961.

This is another argument that we believe supports our construction even though concededly the legislative history is not expressed on the question of how Congress defined or understood the term.

When Congress legislates on a criminal subject in the 1960s, we think it highly desirable that it be taken to be using terms in their common place everyday sense because it is this sense which the average man of ordinary intelligence who must gauge his conduct by the measure should be held to understand it.

And as we've seen recent pieces of federal legislations as well as the Pennsylvania judicial and legislative treatment and the scholarly opinions cited in our brief all illustrate that today the 1960s extortion does not mean an exaction by a public official, the mere acceptance of an unauthorized fee even on the absence of any coercion.

It means rather an attempt to obtain something of value from the individual by making a threat to do some injury to him or to his reputation.

Justice Hugo L. Black: Does it not make the statute rather vague --

Mr. Philip A. Lacovara: No, sir.

Justice Hugo L. Black: If you do not confine it to the crime which is named in the state?

Mr. Philip A. Lacovara: No not necessarily.

If we look to Pennsylvania law to see what a man of ordinary intelligence in Pennsylvania would have had understood this conduct to proscribe, we submit, he would have been on fair notice that the federal statute was prohibiting his conduct even though the conduct is termed blackmail on Pennsylvania.

I've already referred to the judicial decisions in Pennsylvania which it sustained extortion indictments under blackmail statutes.

The blackmail statutes themselves used the term whoever with intent to extort makes certain types of threats.

If the individual consulted the general index to the Pennsylvania statues to see what extortion and violation of state laws meant, one of the earliest listing under the general heading extortion is a reference is a to the blackmail statutes.

There is a cross-reference under the extortion statute in Pennsylvania which says for extortions by others than public officers see the sections involved in this case.

So I think not only do we have the ordinary understanding of the average citizen in Pennsylvania and elsewhere in the English speaking world that extortion means a coercive attempt to obtain property under threat but we have expressed authority that Pennsylvania regards this form of conduct as extortion and we see no notice or vagueness problems in the statute.

Justice Hugo L. Black: Do you think your argument runs in a way of foul of the general principle that criminal statutes must be strictly construed?

Mr. Philip A. Lacovara: Well, in -- we accept the general validity of that proposition.

We don't think it cuts against us here.

We want this statute strictly construed in accordance with the fair meaning of its terms.

We're not trying to expand the notion of extortion beyond what it commonly means.

We're not trying to reach into the remote extensions of what may be extortionate.

It's also perhaps notable to point out that as the District Court recognized, this conduct is malum in se.

It is clearly a violation of Pennsylvania law so we don't have the situation where the individual is completely blameless or not depending on the meaning of this federal statute.

His guilt under the federal statute may turn on what extortion means but we're not trying to use a god out of the air to impose criminal liability on otherwise innocent conduct.

So we think that there's no offense here against the general maxim about construing criminal statute.

I would like to save any remaining time for rebuttal if the Court has no questions.

Chief Justice Earl Warren: You may.

Mr. Philip A. Lacovara: Thank you.

Chief Justice Earl Warren: Mr. Fitzpatrick.

Argument of F. Emmett Fitzpatrick, Jr.

Mr. F. Emmett Fitzpatrick, Jr.: Mr. Chief Justice, may it please the Court.

The law of Pennsylvania in its definition of extortion is not a new or unusual definition.

It tracks very closely if I may borrow a term from the District Court's opinion, the common law definition of extortion and it requires without getting any more detailed than is necessary for purposes of this argument that at least one of the parties involved in an exchange of money to do something must be an individual who is a public officer and a public officer who has something to do with the reason why the money is passed.

This statute was applied in Pennsylvania to prosecute when they are discovered officials who have breached their duty, their sacred trust to the public and have accepted a bribe.

It is not as it has been characterized by the Government in its brief, in its oral argument merely a statute that involves excessive fees.

The excessive fee mentioned is solely to exclude the defense that while I didn't know I could charge $2.50 for $1.50 gold license.

This is the statute that Pennsylvania uses when it is necessary to prosecute corrupt officials.

The crime of bribery in Pennsylvania is further defined by the legislature and is set down in the Penal Code of 1939 and that involves a few different elements when a bribe must be given or accepted by certain enumerated officials no longer just an undefined quest of public officials and it has to do with specific actions that they are supposed to take.

I might say that by defining extortion I know and by defining bribery I assume and by all of its definitions of common law crimes Pennsylvania has not limited violations of these crimes to those things which are contained in the statute.

There are cases dealing with what Pennsylvania calls common law extortion and this case is quite frankly are generally in the area of who should be a public official.

The common law definition of public official has for some reason by the Courts been granted a wider sphere than the statutory definition but in no instance, in the Commonwealth of Pennsylvania is activity which takes place between two individuals who are not public officials, who were not named in the statute whereby one says to the other, “If you don't give me a certain amount of money, I will expose you or I will beat you up or I will print something in the newspaper about you.”

In no instance is this particular type of conduct prosecutable either by extortion or under the bribery statute.

Chief Justice Earl Warren: Suppose this prosecution have taken place in say in California where this fact situation would be covered by the extortion statute assuming that it does, I believe it does, would this conviction stand?

Mr. F. Emmett Fitzpatrick, Jr.: Assuming the facts as Your Honor has stated them and I certainly defer to your judgment in the area, I think that it would, there is no question in my mind.

Chief Justice Earl Warren: I don't assert that it would that's just --

Mr. F. Emmett Fitzpatrick, Jr.: No, I will assert that it would.

Yes, I will admit and in other states it could result in a conviction if their statute were drawn differently.

Chief Justice Earl Warren: Well then, wouldn't that indicate that Congress intended to proscribe this kind of conduct by this statute?

Mr. F. Emmett Fitzpatrick, Jr.: No sir, it would not.

And I say that most respectfully.

Chief Justice Earl Warren: Yes of course.

Mr. F. Emmett Fitzpatrick, Jr.: I think really that the prosecution that you have just mentioned and the fact that a successful prosecution may be obtained in California under these same set of facts was not within the intention with the purview of the individuals who drew the Travel Act.

I think this is a bonus that frankly, they never considered for reasons that I would like to set forth.

In Pennsylvania, there is absolutely no question but that the set of circumstances described in the bill of indictment could not have resulted in a conviction for the crime of extortion in violation of the laws of Pennsylvania.

The United States Government admits this in this instance because the Government when it drew the bills of indictment as set forth in the appendix charges in the to which section that the defendants have committed not the crime of extortion as the Act requires but two different crimes of blackmail in Pennsylvania.

And from this jumping off point with the understanding that under no circumstances could these defendants had been convicted in Pennsylvania of the crime of extortion or bribery, I would like to adopt for just one moment if I may the example used by my brother at the bar, the average man.

Now here comes the average man and have used the Travel Act of 1961 which is an Act in its philosophical content which is designed to do many things to straighten out the country.

But of course, we're limited to what it says and let us assume for one moment hypothetically because we cannot counsel people to commit crimes and very seldom can we give them much good counsel after they have committed it.

But let's assume running through the mind of the average man who was supposed to understand the law and to whom the known certainty of the law is the safety of all whether or not if he takes time to examine it, he is able to conclude clearly and beyond any doubt and without any vagueness that his intended or past conduct is a violation of the Travel Act.

Justice Thurgood Marshall: Mr. Fitzpatrick, how about the average congressman, do you think when he put this word extortion in there he did or did not intend to cover this specific act?

Mr. F. Emmett Fitzpatrick, Jr.: I frankly sir do not think that the average congressman ever even thought of this particular type of activity.

Justice Thurgood Marshall: Do you think that it's unreasonable to think that Congress intended extortion to mean what it was generally understood to cover in 1961?

Mr. F. Emmett Fitzpatrick, Jr.: Yes sir, I do.

As defined by the Government in this instance.

Justice Thurgood Marshall: Do you believe that in 1961, the word extortion in this generic sense in his understanding at that time was broad enough to cover the facts in this indictment?

Mr. F. Emmett Fitzpatrick, Jr.: I will have to admit that.

I will have to admit that under one definition it was.

But may I respectfully suggest that the key term here is not extortion.

If extortion were left alone in this statute, I would not be before this Court.

Extortion was not left alone in this statute.

Extortion was further modified by a term “In violation of the laws of the state wherein committed.”

And at the time this was passed, the Travel Act, the United States Congress had to be aware of a fact set forth in the Government's brief that there are at least 17 of the 50 states that define extortion as Pennsylvania does.

Justice Thurgood Marshall: Do you say -- can you point to any of the legislative history the said Congress was aware of that fact?

Mr. F. Emmett Fitzpatrick, Jr.: No sir, I cannot.

There is a complete negation of the legislative history in this area.

We must arrive --

Justice Thurgood Marshall: But you don't believe that the general understanding at that time would have covered this, the word extortion?

Mr. F. Emmett Fitzpatrick, Jr.: I do feel that if the word extortion were not modified by Congress was in violation of the laws of the state it would have covered this circumstance.

I do further feel that if Congress had specifically intended these or this particular type of activity to be covered under this Act, he could have defined extortion as it did in the Hobbs Act.

It set forth an entire descriptive term of exactly what the conduct was that it was proscribing.

I further suggest fully -- respectfully point out to this Court or urge upon it, that by not doing that and that by limiting the term extortion by the words “In violation of the laws of the state” Congress meant that what was the result was not uniformity but the diversion or the divisiveness that was already present in the United States among the various states.

Now why?

The only reason that I can suggest again by hindsight and I suppose this is the greatest scheme of imagination that a lawyer can play is that extortion and bribery have a common bond and the common bond is governmental corruption.

In either one of those, the forces of local government have to be corrupted.

Let us back off just one step.

Congress did not by the passage of the Travel Act intend to expand either the definition of crime or the jurisdiction of the United States Government or anything else.

The Travel Act is wedded body and soul to state law.

If the state law does not declare it to be a crime regardless of the conduct, it is not a crime under the Travel Act.

Chief Justice Earl Warren: So, what bothers me and what prompted my question was this and I know in California and maybe in other states too many years ago, there was great confusion as to what would constitute larceny as distinguished from larceny by trick and device and from obtaining money under false pretenses and it confused the courts, it confused everyone so they combined all three and called it theft.

Now, would you say if the Government had said larceny in here that in those states where they had called it theft instead of larceny that it would not be intended to apply?

Mr. F. Emmett Fitzpatrick, Jr.: No sir, I would not because --

Chief Justice Earl Warren: Well, what is the distinction between that and your case?

Mr. F. Emmett Fitzpatrick, Jr.: The distinction there sir is that what the Government is doing is picking out an element which is a part and a clear part of a larger crime that is theft.

Larceny is one of three sections of theft according to the definition presently before us.

In this instance, extortion is not that and this is not extortionate conduct.

I respectfully suggest that there is no clearer way that Congress could have said extortion using the word in its technical sense in the Commonwealth of Pennsylvania in violation of the laws of the state.

If extortion were part of a larger overall generic conglomeration of bribery and extortion and blackmail, and Congress had used the word, I would admit as I do in the hypothetical posed by Your Honor that they would have been guilty under this particular section but that is not the case here.

Chief Justice Earl Warren: Well, I understand here that from this brief, the Government that there's some 25 states I can't count them all but I think it's about that where the facts in this case would be covered by the word extortion.

Mr. F. Emmett Fitzpatrick, Jr.: That is correct sir.

Chief Justice Earl Warren: Now, in most states, you say that this law would be applicable.

Mr. F. Emmett Fitzpatrick, Jr.: That is correct.

And in 17, it would not.

Chief Justice Earl Warren: Even though the same conduct --

Mr. F. Emmett Fitzpatrick, Jr.: The same conduct.

Chief Justice Earl Warren: Wasn't criminal in those states.

Mr. F. Emmett Fitzpatrick, Jr.: Correct and I think really that we have faced the problem but the problem is precisely this.

We cannot assume Congress did not know it.

We have to assume that Congress did know it and did what it did not to provide uniformity but to take into account the existing law in the states.

Chief Justice Earl Warren: Well, what was the purpose of Congress in passing this law?

Wasn't it to stop crime that in commerce?

Mr. F. Emmett Fitzpatrick, Jr.: I think that certainly is true Your Honor.

And I think that that is the label or the intention or the purpose behind almost everything.

But now, let us be very realistic for a moment although no one knows much about organized crime in this country except what we read in law review articles and life magazine.

But nowhere --

Chief Justice Earl Warren: No body has a broader language than that.

Mr. F. Emmett Fitzpatrick, Jr.: There are some law review articles that go perhaps a bit beyond that sir and some other treatises.

One, I beg to point out that the President's Crime Commission at least the last one, had I understand a very intimate knowledge of the workings of one smaller city in Pennsylvania when it mentioned the city by the name of Wyncote.

I understand that was a label to apply to a city in Pennsylvania so we cannot assume that they were completely ignorant of them.

But really what they're attempting to cut-off is the income at least as I have heard it defined here from people who are far more expert in this area than I.

From organized crime, I have never heard of two private citizens who have a relationship such as exists here where one says to the other, if you do not pay me $500.00 or $5,000.00, I will accuse you of being a homosexual.

I have never heard of this being a part of organized crime or putting a dollar in the organized crime comforts.

On the other hand --

Chief Justice Earl Warren: But there are others who have heard of that and I am one of them.

Mr. F. Emmett Fitzpatrick, Jr.: There may very well be, sir.

Chief Justice Earl Warren: I'm one of them -- the -- that's been an instrument of interstate crime for ages.

This very situation that you're talking about where people will lure someone in to a compromising position and then threaten them that if they don't -- if they don't come through some money that they're going to prosecute them for a crime and assuming that they are police officers themselves, when they are not police officers.

That's just as common as this claim.

Mr. F. Emmett Fitzpatrick, Jr.: I wouldn't deny that sir.

Chief Justice Earl Warren: Beg your pardon?

Mr. F. Emmett Fitzpatrick, Jr.: I would not deny that.

But I would say most respectfully that what I have not heard of is that the money when it is paid going to organized crime.

I have never heard of this particular scheme which I certainly admit exists being a tool of organized crime and I respectfully suggest to you that a clear reading of this Act indicates only one thing, and that is that Congress never heard of it either even when it passed this Act.

And when it included --

Justice Thurgood Marshall: I respectfully suggest that you should read some of the material that was given to Congress before this Bill was passed.

Mr. F. Emmett Fitzpatrick, Jr.: That may well be sir.

Justice Thurgood Marshall: From an agency that does know something about organized crime.

Mr. F. Emmett Fitzpatrick, Jr.: That may --

Justice Thurgood Marshall: The United States Department of Justice.

Mr. F. Emmett Fitzpatrick, Jr.: Well then, may I respectfully suggest that --

Justice Thurgood Marshall: Don't go around to your law review article once try there.

Mr. F. Emmett Fitzpatrick, Jr.: May I respectfully suggest sir that if Congress did have this knowledge --

Justice Thurgood Marshall: You going to say that it's not in there?

Mr. F. Emmett Fitzpatrick, Jr.: That if Congress did have this knowledge they did not include it within the statute, if this really was an important factor in Congres's mind, they did a very poor job of including it within the statute.

Justice Thurgood Marshall: Say -- I suppose Congress should have said that if somebody holds somebody up and threatens to expose them unless they pay money, that will be a crime.

Mr. F. Emmett Fitzpatrick, Jr.: Congress has done it, may I respectfully say sir, in the Hobbs Act which they passed just a short time before.

Justice Thurgood Marshall: We're talking about this one.

Mr. F. Emmett Fitzpatrick, Jr.: I understand that.

All I am saying is that Congress had the right, the power and the ability to define extortion.

Justice Thurgood Marshall: If you admit that -- you admit that extortion meant the same thing to you that I think it meant to Congress, you admit that.

Mr. F. Emmett Fitzpatrick, Jr.: Extortion does.

There's no question about it.

Extortion in its widest terms includes everything.

Justice Thurgood Marshall: But you said that in order to make a National Law, Congress also intended that it should cover all the vagrancies of all of the 50 -- 48 state statutes.

Mr. F. Emmett Fitzpatrick, Jr.: When you say cover, if you may take into account that they are different and recognize that difference in the Act, yes I do admit that.

Justice Thurgood Marshall: do you --

Mr. F. Emmett Fitzpatrick, Jr.: If you're asking me if I feel that Congress meant by this term extortion, to include just generally extortionate conduct, no sir I do not.

I think that they intended.

They recognized the problem that there were different definitions in different states and they wanted to let them alone.

Now, they cover in all 50 states that type of extortionate conduct which deals with governmental officials.

I know of no state that is exempt under the breakdown supplied by the Government or anyone else.

In anyone of the 50 states, extortion certainly defines any act of crime by which a governmental official is corrupt and so does bribery.

And what I am suggesting to this Court by hindsight that Congress intended to do was to ensure that Local Governments were able to cope with the problem and once having assured that to withdraw the Federal Government from the field of law enforcement in this area and really that makes us much sense as the Travel Act because the Travel Act does not create anything that is a new crime.

The Travel Act merely says that if you travel in interstate commerce to commit a crime in violation of the law of the state, you have committed a separate federal offense.

Now, in this instance, these people could very well have been arrested and prosecuted in the Commonwealth of Pennsylvania.

As a matter of fact, I am informed that some of them were.

Exactly who, when and where I do not know and it is outside of the record.

But there is no reason in the world that these people could not be convicted of a crime, if indeed they committed it and if indeed the prosecution took place in effect or in accordance with the accepted rules of criminal procedure and recognize their rights.

We are not saying that these people should walk the street.

What we are doing is trying to define what Congress said in this Act.

And I respectfully suggest that it makes just as much sense to believe that Congress intended to recognize that there were differences among the various states when it said in violation of the laws of the state wherein committed.

And when it said in violation of the laws of the state, to me this means a little bit more than in definition of the laws of the state.

We may have other procedural problems built in within a state like the statute of limitations or even other things beyond the imagination, I think that Congress clearly intended when it said in violation of the laws of the state just that that if this was not a type of activity that was in violation of the laws of a state, it could not be an unlawful activity for purposes of this particular Act.

Justice Hugo L. Black: Do you think that Congress could pass a law providing that any man who leaves one state to go into another and commit certain offenses or engage in certain conduct which is not a violation of the local law, Congress could make the other crime?

Mr. F. Emmett Fitzpatrick, Jr.: Yes, sir.

Justice Hugo L. Black: Suppose it was a purely local crime, ordinarily treated as such?

Mr. F. Emmett Fitzpatrick, Jr.: I think that by virtue of the --

Justice Hugo L. Black: Could the commerce clause be used for that purpose?

Mr. F. Emmett Fitzpatrick, Jr.: I'm sorry Mr. --

Justice Hugo L. Black: Could the commerce clause be used for the purpose?

Mr. F. Emmett Fitzpatrick, Jr.: In my opinion, it could sir.

Justice Hugo L. Black: While giving the Federal Government how to create crimes in states if the person had traveled in interstate commerce for the purpose of doing that, engaging in that conduct.

Mr. F. Emmett Fitzpatrick, Jr.: In my opinion, Congress could make a criminal law that Congress of the Federal Government could punish.

I don't know that they could create a violation of the state law.

I think that's another problem.

I don't think that the defined conduct would necessarily be a violation of the law of New Jersey or Pennsylvania but it could in my opinion be violation of the Federal Law if Congress chose to do it.

I think they've done that with the Hobbs Act.

They have defined extortion to include the generally accepted term of extortion and they have provided criminal penalties therefore.

Justice Hugo L. Black: (Inaudible)

Mr. F. Emmett Fitzpatrick, Jr.: Regardless of the laws of Pennsylvania.

Now, in this instance, they did not do that and they said specifically that this is only a crime in those states where it is in violation of the laws of those states.

Justice Hugo L. Black: What you're saying is when they could do the other and they say violate a particular thing that is a crime in the state, that you shouldn't read to do it in a more than that?

Mr. F. Emmett Fitzpatrick, Jr.: That is correct sir.

That is exactly what I am saying here.

I think that Congress had the ability and the power and the knowledge to broaden the statute to where we seem by hindsight today to feel that it will be more effective.

But for some reason, they did not.

I really hate to defend what they did because I know so little about it.

I don't know what their intention was at the time.

We have heard that there was an intention to water this down by saying that the extortion and the bribery should pertain only to gambling offenses and prostitution.

And if there was an objection to this and that was removed but we really don't know what was in the mind of Congress when they passed it except by a clear reading of it.

And the average man if I may return again to him who has to read these things I respectfully suggest could just as easily come to the conclusion that this type of conduct in Pennsylvania is not a violation of the Travel Act and the average could certainly do it --

Chief Justice Earl Warren: Violation of the laws of Pennsylvania.

Mr. F. Emmett Fitzpatrick, Jr.: Of violation of the laws of Pennsylvania, it clearly is and there is absolutely no question but that this complaint of conduct here was the violation of the laws of Pennsylvania.

What this Court really has to decide is whether the Federal Government should punish it or Pennsylvania should punish.

Assuming something in future, what I might respectfully point out to this Court that if the United States District Court judge could come to the conclusion that this is not a violation of the laws of Pennsylvania from reading it, so could our average man and really the vagueness provision in this instance if we're getting that far into it is something that violates basic rights.

If Congress intended that extortion should mean extortionate conduct or covered these set of circumstances, they had the full power to do it.

But they did not.

Justice Potter Stewart: If you don't have the Hobbs Act cited in your brief.

Mr. F. Emmett Fitzpatrick, Jr.: The Hobbs Act sir is cited in the Court's opinion.

I believe I do not have the page at the moment.

I remember reading it, page 25 Mr. Lacovara tells me.

Justice Hugo L. Black: Is that what's called the antitrust (Voice Overlap)?

Mr. F. Emmett Fitzpatrick, Jr.: The term extortion means the obtaining of property from another with his consent induced by wrongful use of action or a threatened force violence or fear or under collar of official right and that certainly if it were here, I would not have the pleasure of appearing before this Court.

Justice Potter Stewart: And when was that enacted?

You said it was--

Mr. F. Emmett Fitzpatrick, Jr.: I do not know independently, the courts speak of it as being an earlier but I do not know how much earlier than the Travel Act sir.

Justice Potter Stewart: Alright, thank you.

Mr. F. Emmett Fitzpatrick, Jr.: I do not believe, I must disagree respectfully with my brother, when he tells the Court that the interpretation as imposed upon this Section by the United States District Court would seriously hamper the Government's attempt to wipe out interstate crime particularly organized crime.

With all due respect, I once again say factually that I do not know and have not seen widely circulated at least that this particular type of extortion is at least as large a tool of organized crime as prostitution as gambling, as liquor law violations, as loan sharking really.

And I think that what the Government is trying to do in this particular section of the Travel Act, in this one little section with the exception of arson which was added later, is to ensure that local law enforcement is able through non-corrupt officials to deal with these and with many other problems that would be outside this thing.

Justice Byron R. White: What about loan sharking?

Justice Byron R. White: Yes, sir.

Justice Byron R. White: Could that be reached by this law?

Mr. F. Emmett Fitzpatrick, Jr.: I think it would, I think at least those sections of it sir that it have to deal with the violence, with the threatened violence of loan sharking would be reached by another section of the law.

Justice Byron R. White: What?

Mr. F. Emmett Fitzpatrick, Jr.: The one that is not quoted widely herein, subsection 2 of Section 1952, “commit any crime of violence to further any unlawful activity.”

Justice Potter Stewart: Yes, but unlawful activity as defined would not include loan sharking.

Mr. F. Emmett Fitzpatrick, Jr.: Would not include loan sharking, you're quite correct.

Justice Potter Stewart: Unless it's extortionate.

Mr. F. Emmett Fitzpatrick, Jr.: I apologize.

Justice Potter Stewart: Unless it was extortionate.

Mr. F. Emmett Fitzpatrick, Jr.: Well, therein lies a very difficult problem if a man owes a debt.

Justice Potter Stewart: Well, it's a problem that's in this case.

Mr. F. Emmett Fitzpatrick, Jr.: Not necessarily if I could respectfully just for a moment and this had not --

Justice Byron R. White: Well, you would admit I suppose that if the state law covered loan sharking as extortion, in a statute with a label extortion on it, could it then construe to include loan sharking.

Mr. F. Emmett Fitzpatrick, Jr.: Yes.

Justice Byron R. White: You wouldn't have any problem.

Mr. F. Emmett Fitzpatrick, Jr.: No problem.

But the state laws that deal with loan sharking do not do --

Justice Byron R. White: Or if the state law used to and construe extortion, if he extorts a statute to cover A, B, C, D and E, and then they refined their statutes and they took out of the extortion -- out from under extortion, they called it loan sharking.

Mr. F. Emmett Fitzpatrick, Jr.: I would have no problem with that.

Justice Byron R. White: Why wouldn't you?

It isn't called extortion.

Mr. F. Emmett Fitzpatrick, Jr.: It was at time --

Justice Byron R. White: It isn't extortion under -- illegal under state law according to your argument, is loan sharking illegal under state law?

Mr. F. Emmett Fitzpatrick, Jr.: Loan sharking is illegal under those sections of state law at least in Pennsylvania which have to do with the charging of unlawful interest.

If a person loans money and it is repaid and the interest in Pennsylvania does not exceed 6% per annum, simple it is not loan sharking.

There are of course numerous exceptions but the only vehicle that Pennsylvania has to deal with loan sharking has to do with the charging of excessive interest.

And really it comes under our Banking Code.

It is not in Pennsylvania a criminal offense.

Justice Byron R. White: What --

Mr. F. Emmett Fitzpatrick, Jr.: Pardon me.

It is not under the criminal code, it is a criminal offense.

Justice Byron R. White: We got an opposite track with just a hypothetical case but I suppose your argue -- what you're making with the -- you would certainly stick to it if some state that used to include the loan sharking, shylocking or something under extortion suddenly had a specific statute applied to shylocking and there's no longer indictable or punishable under the extortion statute.

It just -- they just said, we're going to split this out and make it a special offense.

Mr. F. Emmett Fitzpatrick, Jr.: I would have--

Justice Byron R. White: And then wouldn't be extortion illegal under state law, would it?

Mr. F. Emmett Fitzpatrick, Jr.: It would not at that time sir but I would frankly have less problem with that I would with the Chief Justice's hypothetical were.

This was part of a larger overall crime where you had a conglomeration of sections.

Justice Byron R. White: The only reason it would be is because extortion in common understanding would cover situations like that where money is collected under a threat or violence.

Mr. F. Emmett Fitzpatrick, Jr.: Yes sir but in my opinion --

Justice Byron R. White: That's precisely the Government's argument in this case.

Mr. F. Emmett Fitzpatrick, Jr.: Not as I understood it sir.

As I understood the Government's argument in this case, it was that Congress intended this to include something broader than it said and we are not really dealing here with a loan sharking situation.

We are dealing here with not an undefined area of crime either, if I might respectfully point out.

We are dealing here with a specific violation of a law of Pennsylvania.

The crime in Pennsylvania that was committed here was a blackmail by accusation of heinous crime.

It is a specific statute in Pennsylvania.

It is not an undefined thing that's used to be part of something else.

It's a specific statute and it was never even in the common law included under the term of extortion.

Now, extortion has certainly today expanded and I have to admit it and it can include almost anything that comes close to the area.

I have to admit that too.

What I cannot concede that Congress even though it recognized this as an average man, as a good lawyer, as a good legislative research man that Congress intended by the language that it used here to apply this definition of extortion.

It could have done so, so easily in a number of other different ways but it did not.

In this instance, it said in violation of the laws of the state and it had to mean something by that term.

A limitation as it appears at least in this instance what that term had to mean something.

If they had not put in violation of the laws of a state, once again I don't think I would be before this Court even though they had just used the term extortion.

I don't think I would have gotten beyond the District Court with the argument if it were to be made at all.

Justice Hugo L. Black: Suppose --

Justice Potter Stewart: Excuse me, go ahead.

Mr. Fitzpatrick you were -- you were calling our attention to the practical problems with which Congress presumably was attempting to deal that is the actual activities of which are said to create large income for organized crime in this country and pointed out that this particular activity well-known is not one that does so as compared to gambling and other things but while we're on that practical -- on that practical level, a person would never travel just realistically in interstate commerce for the purpose of extortion in the limited sense that Pennsylvania uses it whether a police officer in Pennsylvania doesn't go out and travel to New York.

He has to operate in Pennsylvania, doesn't he?

Mr. F. Emmett Fitzpatrick, Jr.: Well --

Justice Potter Stewart: Be meaningless if it were --

Mr. F. Emmett Fitzpatrick, Jr.: It unless sir, the rare circumstances that it would go to New York for the pay off or that some would come to Philadelphia to pay off a judge or a legislator or the chief of police.

Justice Potter Stewart: But generally the leverage that a law officer has to extort is right within his own state using his office?

Mr. F. Emmett Fitzpatrick, Jr.: That is correct.

Justice Potter Stewart: Using his state office.

Mr. F. Emmett Fitzpatrick, Jr.: Yes, that is correct.

Justice Potter Stewart: Or local office.

Mr. F. Emmett Fitzpatrick, Jr.: That is correct.

Justice Potter Stewart: And so --

Mr. F. Emmett Fitzpatrick, Jr.: But there could be circumstances particularly in a city like Philadelphia that as bad as I seen.

In one instance here, the individuals were accused of coming from Camden which is of course across the river now.

One of these defendants lived in Camden and in a circumstance like that, it might very well be that someone who had a gambling operation in Philadelphia might live in Camden and might pay off a police official and we might get them under the provisions under this Act in this fashion.

I see my time is --

Chief Justice Earl Warren: I was just looking at what the late Robert Kennedy had to say.

He was Attorney General at that time and his interpretation of this law is that this law has a broadest scope and the greatest potential of the new anti-racketeering statutes.

Now, wouldn't that indicate to you that they meant the term extortion not be a limited term but a term that would incorporate a meaning of extortion as it is known in any part of the United States?

Mr. F. Emmett Fitzpatrick, Jr.: I once again must agree that the term extortion does do that to me sir.

I cannot stand before this Court and take an unreasonable position.

But I once again must point out that in my opinion, the limiting phrase in violation of the laws of the state must mean something also.

And if it does in Pennsylvania at least, it limits it not to this kind of activity.

And what I respectfully point out that in the opinion of the Court that I just read this morning, I believe they quoted Professor Wexler who had almost the opposite to say about this statute that it was not very meaningful and that it did not reach out, it did not do the things that some of its proponents have thought that it should do.

The purpose of it I think is noble and I have no objection to that and I really have no objection to those sections of it which are clear but I cannot in my own mind rationalize that Congress intended to do that which that it could have done so easily by the language that it used in this instance.

Perhaps Congress did not intend it.

And in that vagueness I think is the reason why the District Court felt that it should fall and the reason why I urge upon you that you sustain the action the District Court in this matter.

Justice Hugo L. Black: May I ask you a question about your loan shark illustration?

Suppose that a law would be passed by Congress stating anyone who goes from Pennsylvania to Montana for the purpose of lending money to individuals that are less at more than 3% interest shall be guilty of a federal crime.

What would you say about that?

Justice Hugo L. Black: Well, I would say I'm afraid does not come as the result of accumulated experience over the years.

But my frank, of course, back opinion would be that the Federal Government could in one fashion or another justify such a law.

Justice Hugo L. Black: Well, would argue then like you're arguing here that they didn't intend to do a thing like that?

Mr. F. Emmett Fitzpatrick, Jr.: No sir, I would not.

I would clearly not if the Congress here had intended my opinion to outlaw extortionate activity.

Justice Hugo L. Black: Well, do you think Congress would pass a law trying to regulate the interest rate in Montana --

Mr. F. Emmett Fitzpatrick, Jr.: I think --

Justice Hugo L. Black: Put down its law at 3%.

Mr. F. Emmett Fitzpatrick, Jr.: Whether they would get a 3% or not is something I really don't want to get involved with the bankers over because I know nothing about it.

But I do think that if Congress felt that it would aid in its drive on organized crime or aid some other noble purpose, they would pass such a statute.

Now, that again would depend upon the circumstances at the time.

What I should hope that if they did pass that they would not put in the language which is so vague and confusing as they have in this case that they would say exactly what they meant.

Thank you.

Chief Justice Earl Warren: Thank you Mr.

Rebuttal of Philip A. Lacovara

Mr. Philip A. Lacovara: Mr. Justice White, I'm not sure what the result of the colloquy was between counsel and you on the question of possible effect of re-labeling or separating out provisions that at one time were called extortion.

But on page 22 of our brief I'd like to call your attention to the fact that up until 1939, the homosexual extortion conduct presently termed blackmail was in fact called extortion by threats to accuse of an infamous crime.

Mr. Chief Justice, you also mentioned an anomaly that would be caused by accepting the appellee's position that is the statute would not apply to conduct unlawful in Pennsylvania but would apply to conduct unlawful in California simply because the difference in the labels atop the statutes.

We needn't speculate about that.

There's currently before the Court on petition for writ of certiorari raising other issues, Pyne versus United States, number 507 which does involve identical type of homosexual extortion statute -- identical type of homosexual extortion scheme involved here.

But there, the gang members went from Chicago West to Utah which calls the conduct extortion rather than East to Pennsylvania.

But we submit that there's no reason for thinking Congress didn't wish to reach both types of --

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