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UNITED STATES v. BARROW

December 18, 1962

UNITED STATES of America
v.
George BARROW, a/k/a 'Skinny Barrett' et al.



The opinion of the court was delivered by: LORD, III

At the very core of organized crime and racketeering in the United States are gambling, prostitution, liquor and narcotics. In 1961, Congress received the Attorney General's program to curb organized crime, pursuant to which a number of acts were passed. One of these was 18 U.S.C.A. § 1952 which provides in pertinent part:

'(a) Whoever travels in interstate or foreign commerce or uses any facilities in interstate or foreign commerce, including the mail, with intent to * * *

 '(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $ 10,000 or imprisoned for not more than five years, or both.

 '(b) As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion or bribery in violation of the laws of the State in which committed or of the United States. * * *'

 The 15 defendants before us stand indicted under that Act and also under 18 U.S.C.A. § 2 *fn1" and 18 U.S.C.A. § 371. *fn2" The defendants have filed various motions: (1) to dismiss the indictment; (2) to suppress evidence; (3) for bills of particulars; (4) for severance. We consider here only the first two motions.

 The case is set against the green baize backdrop of a large dice game in Reading, Penna. *fn3" According to the indictment, Pillo, Di Patrizio and Mattia were 'laddermen', *fn4" Marzilli, Hunt, Grassi and Recchia were 'dealers', and Dentino and La Monica were 'luggers'. *fn5" The other defendants (except Comito, who is charged only in the conspiracy count) are charged with willfully causing others to travel and aiding and abetting. All are charged in Count I with conspiracy with each other, with named but unindicted co-conspirators and with other persons unknown to the Grand Jury.

 I.

 THE MOTION TO DISMISS

 Defendants contend that despite its broad language, the Act was not intended to apply to the factual situation before us where, as here, defendants are present at the scene of the operation and subject to local prosecution. Rather, they say the Act was intended to catch individuals who have interests in gambling operations but are not subject to local prosecution because they live in resort towns far from the scene of operation and manage their enterprises through couriers and messengers who travel across state lines between the proprietors, the operation, and other branches. That this was one of its purposes cannot be doubted. But the terms of the Act evince no intent to limit its coverage so narrowly. The clear, unmistakable language reaches those who travel in interstate commerce intending to facilitate the illegal business activity, in this case gambling. It includes by its terms 'whoever travels in interstate * * * commerce * * * with intent to * * * facilitate the * * * carrying on, of any unlawful activity, *fn6" and thereafter' does facilitate or attempt to facilitate the unlawful activity.

 Certainly defendants traveled in interstate commerce from New Jersey to Pennsylvania.

 Webster defines 'facilitate' as 'to make easy or less difficult': see United States v. One 1950 Buick Sedan, 231 F.2d 219, 222 (C.A. 3, 1956). In Platt v. United States, 163 F.2d 165 (C.C.A. 10, 1947), the court said, at page 167:

 '* * * The word 'facilitate' appears in many federal statutes. In none of them is it defined, but the presumption is that when Congress used this word, it ascribed to it its ordinary and accepted meaning. * * *'

 Clearly, those who watch over the conduct of a dice game (the laddermen), those who roll the dice (the dealers), and those who carry the participants (the luggers) facilitate the 'carrying on' of the game. It is perhaps an understatement to say that we find it difficult to imagine a dice game without someone to bet or without someone to roll the dice. Defendants argue that at least as to the laddermen and the dealers, the interstate travel did not facilitate the dice game. This, however, is to misread the statute. Its language does not require that the travel facilitate the illegal activity; it requires merely that the person traveling have the intent to and actually facilitate or attempt to facilitate such activity.

 Defendants refer to certain isolated statements allegedly made during the legislative hearings. However, it is neither necessary nor proper for a court to refer to legislative history where the words of a statute are clear and unambiguous, and where construction according to the words used does not lead to an absurd result. In United States v. Missouri Pacific Railroad Company, 278 U.S. 269, at page 278, 49 S. Ct. 133, at page 136, 73 L. Ed. 322 (1929), the Court said:

 '* * * But where the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended. And in such cases legislative history may not be used to support a construction that adds to or takes from the significance of the words employed * * *'

 See also Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917); Hamilton v. Rathbone, 175 U.S. 414, 20 S. Ct. 155, 44 L. Ed. 219 (1899).

 So here, defendants are covered by the plain language of the Act and that result is not absurd. We hold that the acts charged constitute an offense under § 1952.

 Defendants also claim that the indictment is defective in that it fails to specify that the aiders and abetters did so knowingly. While it is true that an alleged aider and abetter must act with knowledge, United States v. Turnipseed, 272 F.2d 106 (C.A. 7, 1959), this is a matter of proof and not one which must be alleged in the indictment. The section involved, 18 U.S.C.A. § 2, does not even include such language. Cf. United States v. Amorosa, 167 F.2d 596 (C.C.A. 3, 1948).

 Defendants further complain that nowhere in the conspiracy count is the game alleged to be a 'business enterprise', this language being used in the Act. The detail necessary in an indictment charging commission of the substantive offense is not necessary in a conspiracy indictment. Wong Tai v. United States, 273 U.S. 77, 47 S. Ct. 300, 71 L. Ed. 545 (1927); Davis v. United States, 253 F.2d 24 (C.A. 6, 1958). The indictment here sufficiently identifies the offense which defendants are alleged to have conspired to commit.

 Lastly, defendants contend that the statute is unconstitutional as applied to these defendants.

 Ever since Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 (1824), it has been recognized that Congress has plenary power over interstate commerce. Cf. Champion v. Ames, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492 (1903); Caminetti v. United States, 242 U.S. 470, 491, 37 S. Ct. 192, 61 L. Ed. 442 (1917). It may deny the facilities of that commerce to persons or things which it deems inimical to the general welfare, even though it could not act as to those matters within a state itself. In Willoughby, 'Constitution of the United States', Vol. 2, p. 977, speaking of the Lottery Case, *fn7" it is stated:

 '* * * That the real purpose of the act was to discourage a type of business or enterprise of which Congress disapproved, but over which, within the States, it had no direct powers of regulation, was not denied. The question, then, was, whether the measure could be constitutionally defended as an exercise of power granted by the Commerce Clause. In ...


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