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UNITED STATES v. VARBARO

November 15, 1984

UNITED STATES OF AMERICA, against ANTHONY VARBARO, Defendant.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

In a two-count indictment filed September 7, 1984, defendant, a Westchester County electrical contractor, is charged with bribery of a Staten Island municipal electrical inspector. The indictment charges violations of the Interstate Travel in Aid of Racketeering statute ("the Travel Act"), 18 U.S.C. § 1952, which makes it a crime to use "any facility in interstate . . . commerce . . . to promote . . . any unlawful activity," and the Mail Fraud statute, 18 U.S.C. § 1341. Defendant moves to dismiss the indictment as a whole and the two counts individually and for an order directing the filing of a bill of particulars and the taking of a pretrial deposition of a key witness.

 I.

 The ground for dismissal of Count One, charged under the Travel Act, is simply stated: defendant contends that any mailings made in connection with his alleged activities moved within New York State only and that a Travel Act violation cannot be premised upon intrastate mailings. *fn1" Although the indictment does not specify the origin and destination of the predicate mailings, the Government does not contest that it bases its prosecution only upon intrastate mailings. Instead it argues that the Travel Act applies to any use of the mails.No appellate case is cited on this point of statutory construction. *fn2"

 The language of the Travel Act, the requisite starting point for the interpretation of its provisions, arguably supports either position. The Act subjects to criminal penalty anyone who "travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to . . . (3) . . . promote, manage, establish, [or] carry on . . . any unlawful activity." 18 U.S.C. § 1952(a). Section 1952(b) enumerates the specific crimes which constitute "unlawful activity" for the purposes of § 1952(a). These include bribery.

 Defendant notes that the statute requires use of a facility in interstate commerce rather than a facility of interstate commerce. In the realm of securities regulation this difference in prepositions has been used to distinguish between statutes requiring actual interstate activity ("in") and mere intrastate use of an instrumentality of commerce which otherwise runs interstate ("of"). See Spilker v. Shayne Laboratories, Inc., 520 F.2d 523, 525 (9th Cir. 1975), and cases cited therein. This distinction was relied on by Judge Metzner in holding that when a Travel Act prosecution is based on use of the telephone wires, actual interstate calls must be shown to satisfy the "in" interstate commerce requirement. United States v. De Sapio, 299 F. Supp. 436, 448-449 (S.D.N.Y. 1969), aff'd., 435 F.2d 272 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S. Ct. 2170, 29 L. Ed. 2d 166 (1971). The Government answers that too much should not be made of the "in-of" distinction, for Congress itself was not particularly careful in its use of this language. The specific example cited is the House Report on the Travel Act, which states that the Act is intended "to prohibit . . . the use of the facilities of interstate . . . commerce, including the mail, in aid of racketeering enterprises." (emphasis added). H.R. Rep. No. 966, 87th Cong., 1st Sess., reprinted in, 1961 U.S. Code Cong. & Ad. News 2664, 2664-65. The force of this argument is undercut somewhat by the fact that the drafters of the House Report may not have had the same motive for painstaking scrutiny of their language as do legislators. Their writing is, after all, exegesis rather than text. Nevertheless, the point is well-taken; this discrepancy cautions against excessive reliance on a single preposition.

 The Government also raises an affirmative argument in defense of its position. It argues that the language of § 1952 differentiates use of the mail from use of other facilities by referring to the mail separately: ". . . uses any facility in interstate . . . commerce, including the mail. . . ." 18 U.S.C. § 1952(a).It is argued that

 by singling out the mail from other facilities in the Act's language, Congress plainly intended to make clear that it considered the mails to be a "facility in interstate . . . commerce" by its very nature; thus the phrase, "including the mails [sic]," as used in the statute, is intended to be descriptive of a "facility in interstate . . . commerce," whether or not the mails are used in an interstate fashion in that particular case. . . . Indeed, had Congress intended the construction now urged by Varbaro . . . it could easily have used the phrase, "any facility, including the mails, in interstate . . . commerce" to make clear that it deemed interstate mailing necessary.

 Government's Memorandum of Law in Opposition at 6-7.

 The argument has some merit. The grammatical implication of placing "including the mail" after "commerce" rather than "facility" is to make it appear that the mail is intended to be taken as not merely a facility but a facility in interstate commerce. In opposition, defendants cite of § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q. Section 17(a) forbids securities fraud by way of "any means or instruments or transportation or communication in interstate commerce or by the use of the mails. " (emphasis added). The argument is that this statute demonstrates that when Congress intends to hinge liability on any use of the mails it does so by separating entirely the reference to the mails from the reference to a "facility in interstate commerce." *fn3" Defendant argues, of course, that the absence of such a separate reference to any use of the mails in § 1952(a) indicates that Congress intended the reference to "mail" to be governed by "facility in interstate . . . commerce" and thus to require an interstate mailing.

 The statutory language appears to wrestle itself to a draw. Both parties' arguments are, in isolation, persuasive. Added together, they indicate that drawing any firm conclusion solely from the statutory language is unwise. The references are simply too ambiguous to give a conclusive answer on this relatively subtle point.

 It is a familiar principle of statutory construction that when the language of the statute is ambiguous, courts must turn to the legislative history, construing the statute in light of the purposes it was designed to serve. Kokoszka v. Belford, 417 U.S. 642, 650, 41 L. Ed. 2d 374, 94 S. Ct. 2431 (1974). The intent of the drafters, according to the Report of the House Judiciary Committee, was to combat the interstate activities of organized crime. H.R. Rep. No. 966, 87th Cong., 1st Sess., reprinted in 1961 U.S. Code Cong. & Ad. News 2664. The bill grew out of the concern of Attorney General Robert Kennedy with racketeers who lived in one state while managing and profiting from criminal activities in another. The need for federal intervention in the prosecution of such traditionally state crimes was justified by the difficulty local law enforcement officials encountered in prosecuting the out-of-state bosses. As Kennedy's testimony is summarized in the Report, "[t]he racketeer would be beyond the control of the police in the State of operation and living as a respected citizen in the State of his abode." Id., at 2665.The Report is at pains to point out that the bill is not intended to pre-empt state prosecution of the predicate unlawful activities. Id.

 The Supreme Court has summarized congressional intent thus: "§ 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another." Rewis v. United States, 401 U.S. 808, 811, 28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971). In considering somewhat different facts, Rewis warned that "an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers [of gambling operations, the specific crime prosecuted in Rewis ], a matter of happenstance, would transform relatively minor state offenses into federal felonies." Id., at 812. Given this risk, courts were counseled that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity [citation omitted]." Id. Later Supreme Court pronouncements have re-emphasized congressional preoccupation with interstate criminal activity. See, e.g., Erlenbaugh v. United States, 409 U.S. 239, 245, 34 L. Ed. 2d 446, 93 S. Ct. 477 (1972) (". . . part[] of a comprehensive federal legislative effort to assist local authorities in dealing with organized criminal activity which, in many instances, had assumed interstate proportions and which in all cases was materially assisted in its ...


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