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UNITED STATES v. ANSANI

January 5, 1955

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT J. ANSANI, HARVEY MILNER, JOHN EDWARD MOORE, ALIAS CLAUDE MADDOX, ALIAS JOHN MANNING, JOSEPH J. AIUPPA, AND RAY JOHNSON, CO-PARTNERS DOING BUSINESS AS TAYLOR & COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Campbell, District Judge.

This is a four-count indictment, charging each of the five defendants with violations of the penal provisions of Chapter 24 of Title 15, enacted in 1951, found in 15 United States Code Annotated, at § 1171 and following. Section 2 of the Chapter provides that it shall be unlawful "knowingly to transport any gambling device to any place in a State * * *."

I eliminate some.

"* * * from any place outside of such State." The Section does not apply to the transportation of gambling devices to a State, or a subdivision of a State, which has enacted a law providing for the exemption of the State or subdivision from the provisions of the Section. Section 3 of the Chapter provides that each manufacturer of or dealer in gambling devices shall register his name and address with the Attorney General upon first engaging in business, and thereafter upon the first day of July of each year. Section 3 also provides that each manufacturer of or dealer in gambling devices shall file monthly records of all sales and deliveries of gambling devices, together with an inventory with the Attorney General. Section 4 of the Chapter provides that all gambling devices, when shipped or transported, shall be plainly labeled or marked so that the name and address of the shipper and consignee and the contents of the package may be readily ascertained on an inspection of the outside of the package.

Counts one and four shall be considered together, for they both relate to the actual transportation of the alleged gambling devices. They charge that the defendants shipped gambling devices in interstate commerce, and that the devices so shipped were not placed in plainly marked packages. Only two of the many points raised by the defendants with respect to these counts in my opinion deserve comment. First, with respect to count one, the defendants point out that the indictment charges them with transportation of a device known as a "trade booster," which is "a subassembly and essential part intended to be used in connection with so-called slot machines." The defendants contend that the statute does not define "gambling device" to include a subassembly and essential part of a slot machine. The relevant parts of Section 1 of the Statute read as follows:

"As used in this chapter —

"(a) The term `gambling device' means —

    "(1) any so-called `slot machine' or any other
  machine or mechanical device an essential part of
  which is a drum or reel with insignia thereon * * *.
    "(3) any subassembly or essential part intended to
  be used in connection with any such machine or
  mechanical device."

According to the defendants, "any such machine or mechanical device", as used in subsection 1(a)(3), refers to the phrase "any other machine or mechanical device" in subsection 1(a)(1), so that the subsection 1(a)(3) cannot refer to subassemblies or essential parts of "any so-called `slot machine.'" In my opinion it need only be said in answer that under the accepted canon of construction the phrase "any other machine", in subsection 1(a) (1), modifies the phrase "any so-called `slot machine'", and includes only machines of the same general class as slot machines. It is therefore clear that subsection 1(a)(3) is limited to subassemblies of slot machines and other machines which have the general characteristics of slot machines, and that the indictment, which charges the transportation of subassemblies of slot machines, states an offense against the United States, as defined in the Statutes.

Second, with respect to count four, the defendants argue, on the basis of United States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190, 98 L.Ed. 179, decided by the Supreme Court of the United States in 1953, that Section 4 of Chapter 24 relates to both interstate and intrastate transactions, and is therefore unconstitutional. However, in United States v. Five Gambling Devices, the Supreme Court construed the statute to relate only to interstate transactions, and this indictment clearly charges an interstate shipment. The same answer might be made to similar challenges to counts two and three of the indictment — these counts relate to a shipment of gambling devices from Illinois to Pennsylvania, and arguments based on the case of United States v. Five Gambling Devices, which was limited to intrastate shipments, are wholly without merit, in this case.

I have carefully considered other objections to counts one and four of the indictment, as raised by the defendants, and I have found them to be without merit; accordingly, the motions to dismiss counts one and four shall be denied.

Counts Two and Three: These counts charge violations of the registration provisions of Chapter 24, and, in my opinion, they raise a grave constitutional question. As I have already indicated, the statute makes it unlawful to transport gambling devices in interstate commerce. Section 3 of the Act, under which counts two and three of the indictment are brought, require manufacturers of and dealers in gambling devices to register with the Attorney General once each year, and to file with the Attorney General a record of sales and deliveries once each month. If, as the Supreme Court has decided, the statute must be limited to unlawful interstate shipments, do not these registration provisions contravene the Fifth Amendment to the Constitution, which guarantees that "No person * * * shall be compelled in any criminal case to be a witness against himself."? A partial answer is supplied by United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, decided in 1953, also by the Supreme Court. It was there held that a requirement that persons engaged in the business of accepting wages must register with the Collector of Internal Revenue did not deny to them their privilege against self-incrimination. To use the language of the Kahriger opinion, 345 U.S. at page 32, 73 S.Ct. at page 515, "that privilege has relation only to past acts, not to future acts that may or may not be committed." When this principle is applied to the statute challenged in the instant case, it is clear that the clause of Section 3 which requires merely that dealers in gambling devices register with the Attorney General does not contravene the Fifth Amendment. Count 3 of the indictment charges nothing more than failure to so register with the Attorney General, and the motion to dismiss that count shall be denied.

A more troublesome question arises with respect to count two of the indictment, which charges that the defendants failed to file with the Attorney General a record of sales and deliveries of gambling devices once each month, and particularly in February, 1954, when four "trade boosters" were allegedly shipped from Illinois to ...


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