Warren E. Burger: We’ll hear arguments next in Number 5342, Wintfored Rewis and Williams against the United States.
Albert J. Datz: Mr. Chief Justice and may it please the Court.
Warren E. Burger: Mr. Datz.
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.
Potter Stewart: Mr. Datz.
Albert J. Datz: Yes sir.
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?
Albert J. Datz: I believe it’s purely statutory construction.
Potter Stewart: You don’t question the power of Congress under the Commerce Clause --
Albert J. Datz: Not in this --
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?
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 --
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?
Albert J. Datz: We don’t go that far --
Potter Stewart: Because you rest your argument on the words of the statute, is that correct?
Albert J. Datz: Yes, Your Honor.
Potter Stewart: And my posit --
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.
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.
Albert J. Datz: Yes, Your Honor.
Potter Stewart: It's purely a statutory argument?
Albert J. Datz: Yes Your Honor.
Potter Stewart: Alright, thank you.
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.
Warren E. Burger: What would you say if the gambling establishment had been 15 feet inside the line from Georgia?
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 --
Warren E. Burger: Would that be different if they had a sign --
Albert J. Datz: I don’t believe so.
Warren E. Burger: -- the other way saying, “Come in and have fun just before you leave Florida.”
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.
Harry A. Blackmun: Mr. Datz, the --
Hugo L. Black: What would have attracted to this place?
Albert J. Datz: I’m sorry Your Honor, I didn’t hear it.
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?
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.
Hugo L. Black: And others came by down to gamble?
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.
Hugo L. Black: Then any more people that come from 15 miles down in Florida?
Albert J. Datz: That’s all that the record shows Your Honor except for one --
Hugo L. Black: How many were coming from the Florida, I don’t see --
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.
Potter Stewart: So, they were movies introduced to notice?
Albert J. Datz: Yes, Your Honor, of the surveillance.
Potter Stewart: Of the activity going around --
Albert J. Datz: Yes sir.
Potter Stewart: -- the house and I suppose they are in the original record which is lodged in the Court, are they?
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.
Warren E. Burger: What would be your position if the record showed that 60% of all the people who came there were from Georgia?
Albert J. Datz: I would say, it would be no different, Your Honor that if a 100% came from Georgia.
Warren E. Burger: Well then, why emphasize -- that’s the question, why emphasized the minimal number if the number is irrelevant?
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.
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?
Albert J. Datz: I believe that’s correct.
Harry A. Blackmun: Suppose the Fifth Circuit were wrong as to this seller, and that the statute --
Albert J. Datz: Then --
Harry A. Blackmun: Does your case collapse?
Albert J. Datz: Yes, it would.
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.
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.
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?
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.
Hugo L. Black: Is that their only basis for the jurisdiction?
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.
Hugo L. Black: Well, what -- what would that have to do with the guilt of the man that owned the gambling house?
Albert J. Datz: I submit that it would not, Your Honor. And certainly under --
William J. Brennan, Jr.: 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)?
Albert J. Datz: Yes, Your Honor.
William J. Brennan, Jr.: That’s the Government --
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 --
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.
Albert J. Datz: That’s correct.
Warren E. Burger: Doesn’t that broaden it a little bit?
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, --
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.
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.
Hugo L. Black: Is that legislation passed?
Albert J. Datz: Yes sir.
Hugo L. Black: In both houses?
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.
Hugo L. Black: Your client is the only one?
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.
Hugo L. Black: It’s kind of a secret?
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.
William J. Brennan, Jr.: 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)
Albert J. Datz: Yes sir.
William J. Brennan, Jr.: I assume we (Inaudible)
Albert J. Datz: No.
Harry A. Blackmun: (Inaudible) and indicted under the use of government facilities, you might not be here.
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 --
William J. Brennan, Jr.: And if that’s what your telling me is, you might still be here?
Albert J. Datz: Yes sir.
William J. Brennan, Jr.: But to say that we’re not in fact indicted for use against facilities apparently from the Court of Appeals (Voice Overlap) --?
Albert J. Datz: I submit that that language was thrown in there. I --
Byron R. White: So, our question, is that the part of construction or (Inaudible)?
Albert J. Datz: Travel in interstate.
Speaker: Not a statute that may cover the same defense.
Albert J. Datz: That’s correct.
Speaker: Very narrow question.
Albert J. Datz: I would submit that it is if it please Your Honor. The -- as I say that --
Speaker: This is sort of a -- sort of constant (Inaudible).
Albert J. Datz: Well, there’s no evidence of travel other than these customers.
Speaker: In your reply brief --
Albert J. Datz: Oh, that’s right. There’s no doubt. There’s no dispute.
William J. Brennan, Jr.: That you can review this fact that making travelers out of your clients merely because customers come from Georgia into the Florida?
Albert J. Datz: That’s correct.
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?
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.
Hugo L. Black: Does the legislative history indicate what provoked the passing of this rule?
Albert J. Datz: Yes it did, Your Honor. It’s quite extensive and the purpose was to fight “organized crime.”
Hugo L. Black: Organized crime.
Albert J. Datz: Yes sir.
Hugo L. Black: What about gambling, does it show --
Albert J. Datz: Gambling is specifically one of the state crimes included within the definition of an unlawful activity.
Hugo L. Black: State crime.
Albert J. Datz: Yes sir.
Byron R. White: What counts were they convicted?
Albert J. Datz: They were convicted on the conspiracy count and the were --
Byron R. White: How about Rewis?
Albert J. Datz: Rewis was convicted on the conspiracy count and --
Byron R. White: Count what?
Albert J. Datz: Sir.
Byron R. White: This count?
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.
Byron R. White: Well, some of these counts say that Rewis traveled and caused (Inaudible)?
Albert J. Datz: I think most of them say that. Yes sir.
Byron R. White: I think that’s an allegation that’s used?
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.
William J. Brennan, Jr.: 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?
Albert J. Datz: No sir because the statute -- only to the statute was read but there was no attempt to define --
Speaker: The reading of it included that (Inaudible).
Albert J. Datz: Right. I don’t recall. I do believe that there was. There was no attempt to define.
Speaker: (Inaudible)
Albert J. Datz: Yes sir. Thank you.
Speaker: Was that ever raised in the Court of Appeals?
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.
Speaker: As a matter of fact, they went -- they even in the --
Albert J. Datz: In their language they put the facility.
Warren E. Burger: Mr. Glazer.
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 --
William J. Brennan, Jr.: What the indictment charges in which the effects charged, sovereignty of the interstate commerce or use of any facility?
Sidney M. Glazer: We’ve -- we construe the indictment as charging, traveling in interstate commerce --
Speaker: And not using any facility.
Sidney M. Glazer: And causing travel. Correct.
Speaker: Not using any facility. You don’t construe the the indictments charge?
Sidney M. Glazer: No.
Speaker: That the Court of Appeals would have to affirm -- be affirmed the conviction under that --
Sidney M. Glazer: Well.
Speaker: Use of interstate facility.
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.
Speaker: And access, is that what you mean?
Sidney M. Glazer: Right.
Speaker: Or how they tried the same offense?
Sidney M. Glazer: Right, in other words, they consider that the word “travel” embraces the use of interstate facility such as interstate roads.
Speaker: Why would Congress amend this statute?
Sidney M. Glazer: Well, --
Hugo L. Black: For using the telephone or something.
Sidney M. Glazer: Right. Using the telephone. 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 --
William J. Brennan, Jr.: That would include use but in some circumstances now others not included --
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.
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?
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.
Hugo L. Black: Was it on a highway or through highway?
Sidney M. Glazer: The Williams house was near a state highway.
Hugo L. Black: Which one?
Sidney M. Glazer: What would you say?
Hugo L. Black: Which highway?
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 --
Hugo L. Black: What town?
Sidney M. Glazer: Yulee. Yulee, Florida which was on interstate 17 and most of the people who came from Georgia.
Hugo L. Black: This one goes by Savanna?
Sidney M. Glazer: This goes on Jacksonville, I believe.
Hugo L. Black: Yes, from Savanna to Jacksonville.
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, --
Hugo L. Black: That’s pretty short turn around, isn’t it?
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.
Warren E. Burger: Well, they didn’t play any games, gambling games in the house, did they?
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.
Hugo L. Black: What were the tickets for, just to come into the house?
Sidney M. Glazer: No, no. They didn’t come with tickets, they came with --
Hugo L. Black: Well, those that bought tickets, what they were --
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.
Warren E. Burger: These were conventional lottery tickets, I suppose.
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.
Speaker: (Inaudible)
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.
Hugo L. Black: Does the record show how they cause it?
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 --
Hugo L. Black: What is the evidence, the indirect evidence outside the fact that the establishment was running?
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.
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?
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.
Thurgood Marshall: That’s not in my case.
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 --
Thurgood Marshall: Oh, I’m trying to get to my point eventually.
Sidney M. Glazer: No. No, I’m going to answer. I would say, yes.
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?
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 --
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.
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.
Hugo L. Black: If it’s done by a man from Georgia?
Sidney M. Glazer: Right. Right if he --
Hugo L. Black: And not from Florida?
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.
Hugo L. Black: Travel from state to state would be better than that?
Sidney M. Glazer: What? Right.
Hugo L. Black: Travel from state to state, but this man wasn’t engage in interstate commerce, as I understand it.
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 --
Warren E. Burger: Cannot be held – it cannot we sometimes held that restaurants are engaged in interstate commerce because interstate travelers stopped --
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.
Hugo L. Black: Enters where people had to eat?
Sidney M. Glazer: Right, right, right.
Hugo L. Black: I don’t suppose this is an eating place, I gather.
Sidney M. Glazer: No, this is -- this is an eating place. The point I was trying to make --
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?
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 --
William J. Brennan, Jr.: (Inaudible) that he will cause people to come --
Sidney M. Glazer: Right, right.
William J. Brennan, Jr.: What was the evidence here would support the Government’s burden upon looking.
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 --
William J. Brennan, Jr.: Well, I would suppose that these petitioners were aware that their customers were from Georgia?
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, --
William J. Brennan, Jr.: 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.
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 --
William J. Brennan, Jr.: 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?
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.
Harry A. Blackmun: That in fact is the Bass case and the related cases involving travel from Memphis to West Memphis --
Sidney M. Glazer: Right that is correct.
Harry A. Blackmun: -- by employees with the employees with the employer living in Memphis as I recall?
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.
William J. Brennan, Jr.: Except he didn’t use the (Inaudible) as far as the statute is concerned?
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 --
Speaker: They were indicted too.
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 --
Speaker: They’re innocent.
Sidney M. Glazer: To show that they were runners. They were anything more than mere betters.
William J. Brennan, Jr.: 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)?
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, --
Speaker: I just --
Sidney M. Glazer: No, no. And I also think that sometimes --
Speaker: How do you spend those $5.00 and $153.00 to the whole bet?
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 --
Speaker: Well, anybody, getting back to the 2 (b) --
Sidney M. Glazer: Right.
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?
Sidney M. Glazer: If the people were induced to cross state lines were all innocent, we think we still could prevail under 2 (b).
Byron R. White: Well, you have to go through it in this case --
Sidney M. Glazer: Well, the Court of Appeals' elements, that’s correct. Right. The Court of Appeals -- the Court of Appeals.
Byron R. White: The Court of Appeals held them all innocent?
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 --
William J. Brennan, Jr.: 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?
Sidney M. Glazer: Yes.
William J. Brennan, Jr.: Before the Court of Appeals that these betters did not committed the offense in the United States, right?
Sidney M. Glazer: Yes, that’s correct.
William J. Brennan, Jr.: How do you hold Rewis?
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.
Thurgood Marshall: Is that the only lottery place in upper Florida?
Sidney M. Glazer: I would assume it isn’t. I would assume it isn’t in which --
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).
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 --
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?
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.
Thurgood Marshall: From Georgia?
Sidney M. Glazer: No, no. The total number of people who came were average eight.
Thurgood Marshall: And how many from Georgia?
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.
Hugo L. Black: All day?
Sidney M. Glazer: What, no.
Hugo L. Black: They came in all day?
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 --
Hugo L. Black: They’d operate all day?
Sidney M. Glazer: No. Just -- it would just to be over -- it would just operate on Saturday morning which is the --
Hugo L. Black: You have evidence that they caused them to come?
Sidney M. Glazer: What?
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.
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.
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?
Albert J. Datz: No sir.
Warren E. Burger: The volume has nothing to do with the violation?
Albert J. Datz: Not under this Act. Frankly, under the new Act just passed it does, but not under this act.
Speaker: What sentences did these men got?
Albert J. Datz: Rewis got five years, Mary Williams got three years.
Speaker: On each count?
Albert J. Datz: Yes, to run concurrently.
Speaker: Concurrently, so any crime that is --
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.
Speaker: Well, what about (Inaudible)
Albert J. Datz: But that’s only if --
Speaker: Or is that does apply to the current situation?
Albert J. Datz: But that doesn’t really apply to the factual situation here. Thank you.
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?
Sidney M. Glazer: No, Your Honor.
Warren E. Burger: Do you think that the fact that they came repeatedly and were known as -- has probative force?
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.
Warren E. Burger: Thank you gentlemen. The case is submitted.