491 F.2d 1382 | 9th Cir. | 1974
Lead Opinion
Appellants were indicted by a federal grand jury for conducting an illegal gambling business in violation of 18 U. S.C. § 1955. After arraignment and a hearing on the constitutionality of § 1955, the district court ordered the government to file a bill of particulars showing how the various defendants were connected with each other in an enterprise within Congress’ intent in enacting the statute.
The bill supplied the details of the government case. A large scale bookmaking organization was operating in violation of § 337(a) of the California Penal Code. Appellants were four front office clerks who accepted bets in person and over the phone, and seven agents or splitters who sought out bettors, paid
The district judge dismissed the indictment after reviewing the bill of particulars. He found that appellants were merely the usual front people working for a bookmaker on a commission basis and that the indictment did not charge an offense as intended by Congress.
The government appeals the dismissal of the indictment contending (1) that § 1955 is constitutional; (2) that the low level employees were intended by Congress to be within the scope of § 1955; and (3) that the indictment properly charged an offense. We reverse.
The constitutionality of § 1955 has recently been upheld by this Circuit in’ United States v. Sacco, 491 F.2d 995 (9th Cir. 1974), in which the Commerce Clause, vagueness and due process contentions raised by appellees in this case were rejected.
In Sacco, we held low level employees, such as those indicted here, to be included within the scope of § 1955. “Each person, whatever his function, who plays an integral part in the maintenance of illegal gambling, conducts an ‘illegal gambling business.’ ”
We find that the indictment was improperly worded as claimed by appellees.
Reversed.
. The indictment reads in jsart as follows : “. . . conduct, manage, supervise cmd own a gambling business.” The statute reads, “. . . conduct, finance, manage, supervise, direct, or own all or part of such business.” (Emphasis added.)
Rehearing
On Petition for Rehearing
Appellees’ motion for leave to file a late petition for rehearing is granted and the Clerk is instructed to file said motion which was lodged in the Clerk’s office on March 21, 1974.
Appellees’ petition for rehearing is denied. United States v. Sacco, 491 F.2d 995, (9th Cir. 1974).