Kiley, Pell and Stevens, Circuit Judges.
During 1969 appellant was the operator of a tavern in Rock Island, Illinois, at which he regularly accepted wagers on sporting events in violation of Illinois law. He has appealed his conviction on both counts of an indictment charging violation of two federal statutes, 18 U.S.C. § 1084(a) and § 1952. Each count raises a question of statutory construction; in addition, he challenges the admissibility of the evidence tending to prove that the Western Union ticker tape machine in his tavern was an interstate facility.
The appeal from the conviction on Count I raises a precise issue. Does the activity of a professional gambler which is prohibited by § 1084(a) include the mere receipt as well as the transmission of the kind of information described in the statute? The issue is starkly presented because appellant's ticker tape enabled him to receive, but not to transmit, information which assisted in the placing of bets on sports events. The ticker tape is, therefore, unlike a telephone which provides a means for communication between two persons, each of whom normally transmits, as well as receives, some information during any use of the facility.
Although we recognize that there is language in at least one case involving the use of the telephone that points in the other direction*fn1, we believe that the coverage of paragraph (a) of § 1084 is limited to prohibited transmissions and does not encompass mere reception. Our conclusion is supported by the text of the statute, by its legislative history, and by the carefully considered opinion in Telephone News System, Inc. v. Illinois Bell Telephone Co., 220 F. Supp. 621 (N.D.Ill.1963), affirmed, 376 U.S. 782, 84 S. Ct. 1134, 12 L. Ed. 2d 83.
In that case the court rejected a Government contention that the word "transmission" as used in paragraph (a) meant receiving as well as sending:
"In support of this position, the government urges that the term 'transmission' as used in subsection (a) does not mean 'sending,' but rather means sending or receiving. Therefore, it maintains, Retelle violated subsection (a) when he received information from plaintiff over the telephone.
"We must reject the theory that 'transmission' as used in subsection (a) means sending or receiving. Whatever validity there might be to the argument that 'transmission,' in some contexts, has a meaning broader than the term 'sending,' it is plain that Congress meant it as 'sending' in this statute. Subsection (d) uses the term 'transmitting or receiving,' and it is illogical to suppose that Congress would not have used both terms in both subsections had it meant to include 'receiving' in subsection (a). We shall not assume that 'transmission' has one meaning in subsection (a) and another in subsection (d), nor that 'receiving' in subsection (d) is superfluous." 220 F. Supp. at 638.
In this case the Government advances a different argument. It contends that the statutory phrase "for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers * * *" modifies the noun "facility" rather than the verb "uses."*fn2 This is not a tenable interpretation of the section. Unless the phrase modifies the verb, a professional gambler would violate § 1084(a) whenever he made an innocent use of a facility which someone else had used for an illegal purpose. Cf. United States v. Judkins, 428 F.2d 333 (6th Cir. 1970).
Moreover, the somewhat different language used in the House Report also indicates that the qualifying language was intended to modify the verb "uses" rather than the noun "facility."*fn3 A reading of § 1084 in its entirety corroborates our conclusion that paragraph (a) is limited to "transmission," since the intent to encompass "transmitting or receiving" by the civil remedy authorized in paragraph (d) was plainly specified by using both words.
We, therefore, hold that the conviction on Count I must be reversed.
Appellant contends that the evidence did not prove that the ticker tape had been used "to facilitate" gambling within the meaning of the Travel Act, 18 U.S.C. § 1952. He contends there was no evidence that any specific bet was placed or any specific payment made on the basis of information received over the ticker tape. For purposes of decision we accept appellant's version ...