Petition — Alsobrook v. United States

IN THE

Supreme Court of the United States

_—e-——_——_

OCTOBER TERM, 1980

———_e—_—_

RONALD TED ALSOBROOK

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

_—_——-e——_——_

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

——_ e—_—_

NEIL H. FINK

1500 Buhl Building

Detroit, Michigan 48226

963-1700

Interstate Brief & Record Co., Wurlitzer Bldg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-8746

TABLE OF CONTENTS

Page

Coe FURIE ak 6 5S. ois dinein te eta eee 2

COON OE 62 cc's s oc ksns Coeobneeewnn ene 2

DN 5.05 goss 05% ck bee eh heen eee 2

Constitutional Provisions Involved ............... 2

Reasons for Granting the Writ.................... 9

INDEX OF AUTHORITIES

Cases:

Bratton v United States, 73 F2d 795 (10th Cir,

WEED is vin vapadvcdenecedesecseebiaee, tee 15

Cohen v United States, 378 F2d 751 (9th Cir,

ROOF) 5 wae EC Neh Awa aed eee 10

Evans v United States, 153 US 584, 14S Ct 934,

Oe 6 GG ae vat esshadiatee eae 14

Ex Parte Bain, 123 US 2 (1GG7) i. once ccnscnv cuss 11

Gaither v United States, 413 F2d 1061 (DC Cir,

EE ere er eer 11

Katz v United States, 369 F2d 130 (9th Cir, 1966). 10

Mitchell v United States, 500 F2d 480 (10th Cir,

| eee re rr re re 10

*

ii

Page

Rumley v United States, 293 F 532 (2d Cir, 1923)

cert denied, 263 US 713, (1923) ............... 15

United States v Cirpolo, 288 F Supp 903 (NJ,

1968) reversed on other grounds 450 F2d 424

Ay ROU AD 6 ko 56660 ce cade ese oak kew eee 10

; United States v Isaacs, 347 F Supp 743 (N.D. Il,

i NE cis vids ce'Snte sven cada ues eae oee 10

United States v Polizzi, 500 F2d 856 (9th Cir,

1974), cert denied, 419 US 1120 (1975) ........ 10

United States v Teemer, 214 F Supp 952, (N.D.

&, we. Reerer erry. reer Tre rir 10

United States v Tye, 519 F2d 586 (10th Cir, 1975),

cert denied, 423 US 989, (1976) ............66.. 14

United States v Zeehandelaar, 498 F2d 352 (2d

BE OE 6 686 e he deren vesanst wien heeie ene 15

Sagansky v United States, 358 F2d 195, (1st Cir,

DE eceet ctdenedteuhpleusbeon een kiaeke can 10

, Statutes:

De I. ccc tcccccccccccscesecenséaus 1,3,4

a ps: | Benen rr 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

RONALD TED ALSOBROOK

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ronald Ted Alsobrook, by and through his

attorney, Neil H. Fink, petitions herein for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Sixth Circuit affirming his

conviction for violation of the Travel Act, 18 USC

§ 1952, filed May 22, 1980.

QUESTION PRESENTED

Was Count I of the Indictment vague and ambiguous

and was Defendant denied his right to be sufficiently

informed of the nature of the charges against him and

his right to be tried on the charges laid by the Grand

Jury where, by the government's interpretation, Count I

charged a continuing course of conduct in violation of

the Travel Act and where the Court, adopting that

interpretation, instructed the jury that it must convict

the defendant if it found that the defendant traveled in

interstate commerce with specific intent of promoting,

managing, establishing or carrying on unlawful activity

on either of the two dates specified in the Indictment.

OPINION BELOW

The Opinion of the Sixth Circuit Court of Appeals

filed May 22, 1980, affirming Petitioner’s conviction, is

reprinted in full as Appendix A hereto. That Opinion

has not, as of this writing, been published.

JURISDICTION

The Opinion and Order appealed from was filed May

22, 1980. The jurisdiction of this court is invoked under

28 USC § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

3

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of

Counsel for his defense.

STATUTORY PROVISION INVOLVED

United States Code, Title 18, Section 1952:

The Travel Act, 18 U.S.C. § 1952, provides:

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or

foreign commerce, including the mail, with intent

to —

(1) distribute the proceeds of any unlawful

activity; or

4

(2) commit any crime of violence to further any

unlawful activity; or

(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 controlled

substances (as defined in section 102(6) of the

Controlled Substances Act),or prostitution offenses

in violation of the laws of the State in which they

are committed or of the United States, or (2)

extortion, bribery, or arson in violation of the laws

of the State in which committed or of tne United

States.

(c) Investigations of violations under this section

involving liquor shall be conducted under the

supervision of the Secretary of the Treasury.

STATEMENT OF THE CASE

Petitioner, Ronald Ted Alsobrook, was charged in

Count One of a two count Indictment with traveling in

interstate commerce with the specific intent of

promoting a business enterprise involving gambling in

5

violation of the laws of the State of Michigan. Count I

of the Indictment sets forth the charge as follows:

1. That on or about September 1, 1977, and

continuously thereafter up to and including the

date of the filing of this Indictment, in the

Eastern District of Michigan and elsewhere, the

Defendant RONALD TED ALSOBROOK a/k/a

“Ron,” willfully and knowingly did travel in

interstate commerce between the State of

California and the State of Michigan with intent

to promote, manage, establish, carry on and

facilitate the promotion, management,

establishment and carrying on of an unlawful

activity, namely: a business enterprise involving

bookmaking, gambling, betting and wagering on

sporting events in violation of Michigan

Compiled Laws, Sections 750.301, 750.304,

750.314, 750.157A, 750.167 and 750.92 and

thereafter did perform and attempt to perform

acts to promote, manage, establish, carry on and

facilitate the promotion, management,

establishment and carrying on of said unlawful

activity.

2. It is further alleged that the Defendant,

RONALD TED ALSOBROOK a/k/a “Ron,” as

part of and in willful promotion of said unlawful

activity, did:

a. On or about October 28, 1977 travel by

air from San Francisco, California to Detroit,

Michigan.

b. On or about October 31, 1977 travel by

air from Detroit, Michigan to Los Angeles,

California.

*

6

c. On or about November 7, 1977 travel by

air from Detroit, Michigan to Los Angeles,

California.

d. On or about November 14, 1977 travel

by air from Detroit, Michigan to Los Angeles,

California.

e. On or about December 8, 1977 travel by

air from Los Angeles, California to Detroit,

Michigan.

f. On or about December 12, 1977 travel by

air from Detroit, Michigan to Los Angeles,

California.

All in violation of Title 18, United States Code,

Section 1952.

Prior to trial Petitioner moved to strike the words

“and continuously thereafter up to and including the

date of the filing of this Indictment” as surplusage. This

motion was based on Defendant's interpretation of the

Indictment charging that the violation of the Travel Act

occurred on or about the date of September 1, 1977. The

government thereafter responded that it would attempt

to approve a separate Travel Act violation on each of

the six dates set out in paragraph two of Count I.

Petitioner challenged this interpretation in subsequent

pleadings, further raising questions of duplicity,

amendment of a grand jury indictment and vagueness

— problems inherent in the government's interpretation

of the Indictment. The trial court, ruling from the

bench, denied Petitioner’s challenge to the sufficiency

of the Indictment on all grounds noted above.

At trial, the government generally established the

existence of a bookmaking operation in Michigan

7

through records seized from Petitioner’s office in

Michigan, along with testimony of gambling customers

and analysis by an expert witness. At the conclusion of

the government’s case, Petitioner moved for a Judgment

of Acquittal based on the government’s failure to

produce any evidence of the fact that the October 28,

1977 act of travel charged in paragraph two of the

Indictment originated in San Francisco as alleged, and

that the government failed to present evidence of the

requisite intent as to the other dates of travel charged.

The Motion For Judgment of Acquittal was denied.

Petitioner also argued that the variance between the

charge (alleging travel on October 28, 1977 originating

in San Francisco) and the absence of proof as to San

Francisco, created an improper amendment to the

Indictment and, therefore, moved to strike the October

28, 1977 travel along with the other dates of travel set

out in paragraph two. The government conceded that

the October 28, 1977 and December 8, 1977 dates were

the only dates for which they could show the necessary

element of subsequent acts in furtherance of the

unlawful activity and that four of the dates in paragraph

two should be deleted from the original Indictment.

Thus the acts of travel alleged on October 21, November

7, November 14 and November 12, 1977 were striken.

Petitioner renewed his previous motion for an election

of acts; this motion was denied.

The final version of the Indictment as presented to

the jury remained unchanged as to paragraph one;

paragraph two charged as follows:

1. The Grand Jury charges in Count One that

on or about September 1, 1977, and continuously

thereafter up to and including the date of the

8

filing of this Indictment, in the Eastern District

of Michigan and elsewhere, the Defendant,

RONALD TED ALSOBROOK, a/k/a ‘’Ron”

willfully and knowingly did travel in interstate

commerce between the State of California and

the State of Michigan with intent to promote,

manage, establish, carry on and facilitate the

promotion, management, establishment and

* carrying on of an unlawful activity, namely: a

business enterprise involving bookmaking,

gambling, betting and wagering on sporting

events in violation of Michigan Compiled Laws,

Sections 750.301, 750.304, 750.314, 750.157a,

750.167 and 750.92, and thereafter did perform

and attempt to perform acts to promote, manage,

establish, carry on and facilitate the promotion,

management, establishment and carrying on of

said unlawful activity.

2. It is further alleged that the defendant,

RONALD TED ALSOBROOK, a/k/a “Ron,” as

part of and in willful participation of said

unlawful activity, did:

a. On or about October 28, 1977 travel by

, air from San Francisco, California to Detroit,

Michigan.

b. On or about December 8, 1977, travel by

air from Los Angeles, California to Detroit,

Michigan.

As to the dates specified in the Indictment, the Court

instructed the jury only as to those dates identified in

paragraph two:

[YJou will note that the Indictment charges two

dates of such travel — October 28, 1977 and

December 8, 1977. You must all agree; that is,

9

with unanimity, that defendant Alsobrook

traveled in interstate commerce with the specific

intent of promoting, managing, establishing or

carrying on an unlawful activity on at least one

of the two dates in order to find him guilty. By

contrast, if you cannot conclude with unanimity

that the Defendant Alsobrook traveled in

interstate commerce with a specific intent of

promoting, managing, establishing or carrying

on an unlawful activity on at least one of the two

specific dates, you must return a verdict of not

guilty.

No instruction was given as to the September 1, 1977

date specified in paragraph one of the Count ! of the

Indictment.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW SIGNIFICANTLY UNDERCUTS

DEFENDANT'S RIGHTS UNDER THE FIFTH AND SIXTH

AMENDMENTS TO BE TRIED ONLY UPON CHARGES

LAID BY THE GRAND JURY AND TO BE INFORMED OF

THE NATURE OF THE CHARGES AGAINST HIM.

The essential elements of the offense charged in this

Indictment, to-wit, 18 USC § 1952, are as follows:

1. That the Defendant, at or about the time

charged in the Indictment, traveled in interstate

commerce.

2. That the travel was done with a specific

intent to further some unlawful activity, to-wit:

to promote, manage, establish, carry on or

facilitate a gambling operation, in violation of

the laws of the State of Michigan.

’F

10

3. The Defendant following such travel

attempted to or did in fact promote, manage,

establish, carry on or facilitate a gambling

operation in violation of the laws of the State of

Michigan. See Devitt & Blackmar, Federal Jury

Practice and Instruction, Section 56.13. United

States v Stagman, 446 F2d 489 (6th Cir, 1971);

: United States v Gebhart, 411 F2d 1261 (6th Cir,

. 1971).

Although the legislative history of the Travel Act

discloses Congress’ clear intention to require a

continuing course of illegal activity, in violation of State

law, (Element 3), it has been recognized that each act of

travel itself (Element 1) is the unit of prosecution and

that each act of travel is a separate offense. United States

v Polizzi, 500 F2d 856 (9th Cir, 1974), cert denied, 419 US

1120 (1975); United States v Teemer, 214 F Supp 952,

(N.D. W.Va., 1963). United States v Isaacs, 347 F Supp

743, 757 (N.D. Ill., 1972); United States v Cirpolo, 288 F

Supp 903, 1022 (NJ, 1968) reversed on other grounds 450

F2d 424 (3rd Cir, 1971). See also, Sagansky v United

States, 358 F2d 195, 201 (1st Cir, 1966); Katz v United

States, 369 F2d 130, 135 (9th Cir, 1966); Cohen v United

Ste es, 378 F2d 751, 755 (9th Cir, 1967); Mitchell v United

States, 142 F2d 480, 481 (10th Cir, 1944).

Against this background, Count 1 must be construed

as charging one Travel Act violation occurring on or

about September 1, 1977 as set forth in paragraph one.

This conclusion is inescapable not only in accordance

with the expectation that the Indictment is a proper

pleading which charges only one offense in each count,

but also since the second and third required elements of

the Travel Act (intent and acts in furtherance of the

11

unlawful activity) are not set forth at all with reference

to the dates alleged in paragraph two. Thus, it clearly

appears that the dates of travel specified in paragraph

two were intended by the grand jury to represent only

the means by which the unlawful activity was carried

on.

Nevertheless, the trial court’s denial of defense

motions and its instructions to the jury was based on

an interpretation of the Indictment which

fundamentally altered the charges laid by the grand

jury. Wholly ignoring the September 1, 1977 date, the

judge viewed each of the dates specified in paragraph

two as a predicate for a Travel Act violation, subjecting

the Defendant to the possibility of a conviction for any

one of six separate offenses.

The Sixth Circuit Court of Appeals affirmed the trial

court’s interpretation, holding that Count 1 charged a

continuing course of conduct and that this manner of

charging, that is, the consolidation of several acts into a

single scheme, benefitted rather than prejudiced

Petitioner. (Appendix p. 20-21. Slip Op at p.4-5)

The courts below ignore, in those rulings, the

fundamental guarantee of grand jury presentment.

The essence of the Fifth Amendment's guarantee of

prosecution by Indictment is that the charges against

which an accused must defend is truly the charge of a

Grand Jury. Gaither v United States, 413 F2d 1061 (DC

Cir, 1969); Stirone v United States, 361 US 212 (1960); Ex

Parte Bain, 121 US 1 (1887). A defendant may only be

tried on or convicted of the charge laid by the indicting

grand jury. Failure to follow the intendment of the

indicting grand jury results in a constructive

12

amendment where, as here, the trial court significantly

altered the true nature of the charge.

In the case at bar, as Petitioner originally contended,

the grand jury intended to charge that a Travel Act

violation occurred on September 1, 1977 with the acts in

paragraph two setting forth the means by which the

unlawful activity was carried out, and in so charging,

the grand jury properly interpreted the statute.

The correctness of this reading of the Indictment is

supported by reference to the evidence submitted at

trial relative to the six dates of travel specified in

paragraph two. As the Court of Appeals noted, four of

these dates represent travel from Michigan to California

(Appendix p. 20; Slip Op. at p. 4); they could not,

therefore, stand as the predicate act of travel since the

government, as it conceded in its responses to

Defendant’s Motion for Judgment of Acquittal, had no

proofs as to the necessary element of subsequent acts in

furtherance of the unlawful activity. That they were,

nevertheless, listed and identified in the Indictment in

the same manner as the two dates finally submitted to

the jury as the predicate acts of travel, by all principles

of logical construction, supports the conclusion that the

grand jury regarded each of these dates as having an

identical relationship to the charge. Where, as

necessarily follows from the interpretation of Count I

adopted in the holdings below, two dates are abstracted

from the list and identified as apples rather than

oranges, the resulting interpretation destroys the logical

and internally consistent theory presented by the

natural order and clear language of the Indictment.

Petitioner contends that a Travel Act violation is

properly plead cnly where each count of the Indictment

charges a single act of travel in violation of 18 USC

13

§ 1952. The grand jury’s Indictment here is a proper

charge. The trial court, however, erred by construing

the Indictment to charge a continuing offense. The trial

court thus significantly amended the Indictment in

violation of Petitioner’s right under the Fifth

Amendment to be tried on the exact charges laid by the

grand jury.

The difficulty in deterinining the exact nature of what

was charged by the grand jury constitutes a separate

though related attack on the vagueness and

insufficiency of Indictment.

Prior to trial, Petitioner filed three separate pleadings

in his effort to clarify the exact nature of the charges he

faced; the government filed two separate responses:

Defendant’s Motion to Strike Surplusage; Government's

Response to Defendant’s Motion to Strike; Defendant's

Trial Brief and Reply to Government’s Memorandum in

Opposition to Motion to Strike; Government’s

Supplementary Response to Defendant’s Motion to

Strike or in the Alternative to Force the Government to

an Election of Acts; Defendant’s Supplemental

Memorandum. !

Despite this ongoing dispute between the prosecution

and the defense as to the nature of the charge alleged

by the grand jury in Count 1, the trial court did not rule

' A Bill of Particulars was requested by defense counsel by

motion filed on November 9, 1978 wherein the government was

specifically asked to state: (1) the method and means of interstate

commerce in which the Petitioner was alleged to have traveled on or

about September 1, 1977, with intent to promote an unlawful activity,

and; (2) the method and means of interstate travel in which

Petitioner was alleged to have traveled as part of an illegal activity on

the dates specified in paragraph two of Count 1. This request was

denied by the Court on April 24, 1979.

14

on the motions until the first day of trial. At that time,

the court adopted the government’s interpretation of the

charge. As noted above, the prosecution originally

asserted that it would attempt to establish six distinct

Travel Act violations based on the dates set forth in

paragraph two of the Indictment. Defense counsel

continued throughout the trial to challenge this

interpretation, particularly when it became apparent

that four of the acts of travel alleged were to be striken

from the original Indictment upon the prosecution’s

concession that it could not prove the neccessary

elements of a Travel Act violation on those dates — a

result seemingly consistent with defense counsel’s

theory of the case and inconsistent with the

government’s initial posture as to the nature of the

charge.

The holding of the Sixth Circuit addresses itself only

to the construction of Count 1. In so doing, that

opinion fails to respond to Petitioner’s assertion that

where the language of the charging portion of an

Indictment is so unclear that an accused must guess at

its meaning, he is denied his fundamental right to be

informed of the nature of the charges against him.

The basic purpose of an indictment “is to clearly

apprise the defendant of the charges and what he must

be prepared to meet.” United States v Tye, 519 F2d 586,

589 (10th Cir, 1975), cert denied, 423 US 989, (1976).

Accordingly, if the “indictment leaves the defendant in

a fair doubt as to the offense charged, it fails to meet

the test that the indictment must be free from

all ambiguity’ and “leave no doubt in the minds

of the accused and the court of the exact offense

intended to be charged.’”” Evans v United States,

15

153 US 584, 587, 14S Ct 934, 38 L Ed 830 (1894); Bratton

v United States, 73 F2d 795, 797 (10th Cir, 1934); Rumely

v United States, 293 F 532, 547 (2d Cir, 1923), cert denied,

263 US 713, (1923). 44 S Ct 38, 68 L Ed 520 (1923).

Rule 7(c) of the Federal Rules of Criminal Procedure

provides in pertinent part, that “[t]he Indictment .. .

shall be a plain, concise and definite written statement

of the essential facts constituting the offense charged.”

This rule reflects the oft-stated principle “that an

indictment is defective if it fails to apprise the accused

with reasonable certainty of the nature of the accusation

against him.” United States v Zeehandelaar, 498 F2d 352,

356 (2d Cir, 1974) (Citations omitted).

Consequently, your Petitioner was entitled to know

the exact charge he must face. If the government and

the courts below are correct as to what the grand jury

charged, then the ambiguities and defects contained in

the Indictment rendered it vague, and insufficient to

inform the accused of the charges. The Indictment was

further insufficient, under that construction, in that it

failed to set forth all of the elements of a § 1952

violation as to the separate acts of travel (offenses)

alleged. Petitioner has been, therefore, denied the

constitutional protections afforded every accused by the

Fifth and Sixth Amendments, and cannot said to have

been fairly tried.

~

16

CONCLUSION

For these reasons the Court should issue a Writ of

Certiorari to the Sixth Circuit Court of Appeals, that it

might review the substantial question herein posed.

Respectfully submitted,

NEIL H. FINK

Attorney for Petitioner

1500 Buhl Building

Detroit, Michigan 48226

(313) 963-1700

Dated: June 19, 1980

17

Nos. 79-5226, 79-5227

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,; AprPeEAL from the

United States District

Court for the Eastern

RonaLp Tep Arsoproox and Georce| District of Michigan,

Atvin ROLLs, Southern Division.

Defendants-Appellants.

Vv.

Decided and Filed May 22, 1980.

Before: Epwarps, Chief Judge, CeLesrezzE and Brown,

Circuit Judges.

BaiLey Brown, Circuit Judge. The defendant, Ronald Also-

brook, was convicted of traveling in interstate commerce with

the intent to carry on an unlawful gambling activity in viola-

tion of the Travel Act, 18 U.S.C. § 1952. The defendant,

George Rolls, was convicted under 18 U.S.C. § 2 of aiding and

abetting Alsobrook. Both defendants appeal.

The evidence introduced at the defendants trial, viewed in

the light most favorable to the government, established the

following facts. Throughout the fall of 1977, Alsobrook op-

erated an illegal bookmaking business in Michigan. Some-

time prior to October, 1977. however. Alsobrook moved at

18

2 United States v. Alsobrook, et al. Nos. 79-5226-27 .

least part of his family from Michigan to California so that

his daughter, an excettent-swimmer, could train for the 1980

Olympics.

On October 28, 1977, FBI agents observed Alsobrook being

picked up at the Detroit airport by a friend in a car that,

subsequent investigation revealed, was rented by Rolls. Also-

brook registered at a local hotel where he listed his residence

as Mission Viejo, California. After conducting his bookmaking

operation and using this car leased by Rolls over the weekend,

he was driven to the airport in it on Monday, October 31.

Alsobrook was subsequently seen boarding a flight leaving

Detroit.

On December 8, 1977, FBI agents in Los Angeles observed

Alsobrook boarding a flight bound for Detroit. Upon his

arrival in Detroit, Alsobrook followed the same routine that

he established in October. He was picked up at the airport

in the car rented by Rolls, registered at the hotel as a resident

of California, operated his bookmaking business over the

weekend and then was dropped off at the airport in the car

rented by Rolls.

Additional proof was introduced showing a pattern of travel

by Alsobrook from California to Michigan and then returning

to California. Several airline tickets reflected these weekend

trips. On each occasion, Alsobrook followed the same routine

once he reached Detroit.

The exact role of Rolls in the gambling operation was never

clearly established. Several witnesses, however, testified that

they had placed bets with either Alsobrook or Rolls in the

fall of 1977 and that one of the defendants, not necessarily

the one who had initially accepted the bet, had subsequently

collected or paid the bet. Moreover, telephone records in-

dicated that Alsobrook called Rolls on several occasions dur-

ing his visits to Michigar. Rolls never personally met Also-

brook at the airport, but on each of his visits, as stated,

Alsobrook was picked up in a car rented by Rolls.

19

Nos. 79-5226-27 United States v. Alsobrook, et al. 3

From this evidence, the jury could have reasonably con-

cluded that Alsobrook traveled in interstate commerce on

October 28 and December 8 with the intent to conduct an

illegal bookmaking operation in Michigan and that he sub-

sequently operated that bookmaking enterprise.’ In addition,

on the basis of Rolls’ connections with the bookmaking op-

eration and the use of the car leased to him by Alsobrook,

the jury could have reasonably concluded that Rolls had

knowledge of the interstate travel by Alsobrock? and that he

acted to facilitate that interstate travel. Accordingly, we be-

lieve that the evidence introduced at the defendants’ trial was

sufficient to sustain the convictions of both defendants, absent

some prejudicial error in the rulings of the district court.

Alsobrook and Rolls have raised different issues in challenging

those rulings.

II

Alsobrook contends that the indictment was duplicitous and

therefore invalid. The indictment consisted of a single count

charging a violation of the Travel Act. The count contained

two paragraphs. The first paragraph alleged that “on or about

September 1, 1977, and continuously thereafter,” Alsobrook

traveled in interstate commerce with the intent to aid un-

lawful gambling activity. The second paragraph listed six

dates on which Alsobrook allegedly traveled between Cali-

'The principal defense of Alsobrook at his trial was that he re-

mained a resident of Michigan throughout the fall of 1977 and that

therefore his travel from California to Michigan was for the pur-

pose of returning home. On this basis, Alsobrook contended that he

did not travel with the intent to promote an illegal business en-

terprise. We believe that there was sufficient evidence from which

the jury could have concluded that Alsobrook stayed primarily in

California and flew to Michigan on weekends to conduct his book-

making operation. Under these circumstances, the legal residence

of Alsobrook would appear irrelevant.

oa discuss, infra, the necessity of proving actual knowledge by

olls.

20

4 United States v. Alsobrook, et all. Nos. 79-5226-27

fornia and Michigan “as part of and in willful promotion of

said unlawful activity.”*

Our initial problem is one of construction. Alsobrook main-

tains that the indictment should be construed to allege a

single act of interstate travel that occurred “on or about

September 1, 1977.” While some of the language in the in-

dictment supports such an interpretation, the fairer interpreta-

tion of the indictment is that it alleges a continuing course of

interstate travel consisting of the specific travel dates listed

in the second paragraph of the indictment. Construed in

this manner, the critical issue is whether the inclusion of more

than one act of interstate travel in a single count rendered

the indictment duplicitous.

Under the Travel Act, each act of interstate travel and

each use of an interstate facility constitutes a punishable of-

fense. United States v. Polizzi, 500 F.2d 856, 898 (9th Cir.

1974). Thus, the grand jury could have indicted Alsobrook in

separate counts for each of his trips to Michigan. If the prose-

cution had drafted the indictment in this manner, Alsobrook

would have been exposed to the possibility of a more severe

penalty. Instead, however, the prosecution elected to char-

acterize the actions of Alsobrook as a continuing course of

conduct that represented only a single offense.

Several courts have upheld the validity of indictments

that consolidate several acts into a single count when such

acts represent a single, continuing scheme that occurred with-

in a short period of time and that involved the same defen-

dant. See United States v. Girard, 601 F.2d 69 (2nd Cir. 1979);

United States v. Pavloski, 574 F.2d 933 (7th Cir. 1978);

Cohen v. United States, 378 F.2d 751 (9th Cir.), cert. denied,

389 U.S. 897 (1967). The determination of whether a group

3 Four of these travel dates involved trips from Michigan to Cali-

fornia. These dates were stricken from the indictment at the con-

clusion of the proof for the reason that the government had failed

to show any acts by Alsobrook while in California that furthered

any unlawful activity.

21

Nos. 79-5226-27 United States v. Alsobrook, et all. 5

of acts represents a single, continuing scheme or a set of sepa-

rate and distinct offenses is a difficult one that must be

left at least initially to the discretion of the prosecution. This

discretion, however, is not without limits. See e.g., United

States v. Tanner, 471 F.2d 128 (7th Cir. 1972). Ultimately, the

indictment must be measured in terms of whether it exposes

the defendant to any of the inherent dangers of a duplicitous

indictment. See United States v. Pavloski, supra. Those dangers

include the possibility that the defendant may not be prop-

erly notified of the charges against him, that he may be sub-

jected to double jeopardy, that he may be prejudiced by

evidentiary rulings during the trial, and that he may be con-

victed by a less than unanimous verdict. If any of these

dangers are present, the acts of the defendant should be

separated into different counts even though they may rep-

resent a single, continuing scheme.

In this case, we believe that the government's characteri-

zation of the facts as a single, continuous scheme was a fair

one. Moreover, none of the dangers of duplicity were present

in this case. The government's theory of prosecution was

sufficiently clear to provide adequate notice of the charges

against Alsobrook and to preclude any potential for double

jeopardy. The indictment did not create any evidentiary

problems as a result of the single court. Finally, the district

court, by instructing the jury that it must reach a unanimous

decision on at least one act of interstate travel, obviated any

possibility of a conviction based on a less than unanimous

verdict.

Accordingly, we conclude that the indictment in this case

was neither duplicitous nor otherwise prejudicial. We find

it difficult to criticize the government's exercise of discretion

when it redounds to the benefit of the defendant as it did

in this case. More importantly, however, we are hesitant to

create an inflexible rule that would force the government to

charge each punishable act as a separate count and thereby

to cumulate both offenses and possible punishments.

hen

22

6 United States v. Alsobrook, et al. Nos. 79-5226-27

We have considered the remaining issues raised by Also-

brook and find them without merit. We therefore affirm the

conviction of Alsobrook.

il

Rolls contends that the district court erred in instructing

the jury that it could find Rolls guilty as an aider and abettor

if “he knew or should reasonably have known that Ronald

Alsobrook was engaged in interstate movement or using a

facility in interstate commerce.” Rolls maintains that the gov-

ernment was required to prove that he had actual knowledge

of Alsobrook’s interstate travel.

The Travel Act was originally enacted to provide a means

by which the federal government could aid state officials in

controlling organized crime. It was directed specifically at

members of organized crime who resided in one state and

operated illegal enterprises in other states. See United States

v. Nardello, 393 U.S. 286 (1969). Despite this narrow pur-

pose, however, the language of the Travel Act is quite broad.*

4The Travel Act, 18 U.S.C. § 1952, provides:

(a) Whoever travels in interstate or foreign commerce or uses

any facility in interstate or foreign commerce, including the

mail, with intent to—

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful ac-

tivity; or

(3) otherwise promote, manage, establish, carry on, or facili-

tate 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

poy — $10, 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 n paid, narcotics or controlled

substances (as defined in section 102(6) of the Controlled Sub-

stances Act, or prostitution offenses in violation of the laws

of the State in which they are committed or of the United

23

Nos. 79-5226-27 United States v. Alsobrook, et al. 7

See United States v. Archer, 486 F.2d 670 (2d Cir. 1973). In

Rewis v. United States, 401 U.S. 808 (1971), the Supreme

Court warned “that an expansive Travel Act would alter sensi-

tive federal-state relationships.” 401 U.S. at 812. On that

basis, the Court held that interstate travel by customers of a

gambling enterprise, even though reasonably foreseeable, was

not sufficient to trigger the provisions of the :raV@Mxtt? But

even after Rewis, the precise scope of the Travel Act re-

mains in many respects undefined.®

The majority of the circuits have held that knowledge by a

defendant of the interstate travel or of the use of an inter-

state facility by another is not an element of a violation of

the Travel Act. See United States v. McPartlin, 595 F.2d 1321,

1361 (7th Cir. 1979), United States v. Perrin, 580 F.2d 730,

737 (5th Cir. 1978); United States v. Villano, 529 F.2d 1046,

1054 (10th Cir. 1976); United States v. LeFaivre, 507 F.2d

1288, 1298 (4th Cir. 1974); United States v. Sellaro, 514 F.2d

114, 120 (8th Cir. 1973); United States v. Roselli, 432 F.2d

879, 891 (9th Cir. 1970). These circuits therefore hold that

all of the persons involved in an illegal business enterprise

may be prosecuted under the Travel Act if any one of them

travels in interstate commerce or uses an interstate facility.

The Sixth Circuit, however, has adopted a more narrow in-

terpretation of the Travel Act.

States, or (2) extortion, bribery, or arson in violation of

the laws of the State in which committed or of the United States.

(c) Investigations of violations under this section involving

liquor shall be conducted under the supervision of the Secre-

tary of the Treasury.

5 The Seventh and Second Circuits have held that the Travel Act

does not extend to those uses of interstate facilities that are minimal

and incidental to the operation of the illegal business. United States

v. Herrera, 584 F.2d 1137 (2nd Cir. 1978); United States v. Archer,

486 F.2d 670 (2nd Cir. 1973); United States v. Altobella, 442 F.2d

310 (7th Cir. 1971). This court, as well as the Fourth Circuit, has

rejected this construction of the Act. United States v. Eisner, 533

F.2d 987 (6th Cir. 1976); United States vy. LeFaivre, 507 F.2d 1288

(4th Cir. 1974).

>»

24

8 United States v. Alsobrook, et al. Nos. 79-5226-27

On two separate occasions, in United States v. Barnes, 383

F.2d 287 (6th Cir. 1967), and in United States v. Prince,

529 F.2d 1108 (6th Cir. 1976), this court has reversed con-

victions under the Travel Act for the reason that the proof

was insufficient to demonstrate that the defendant knew that

another person involved in the illegal business enterprise was

traveling in interstate commerce or was using interstate fa-

cilities. In both cases, it is true, the court employed language

to the effect that the proof failed to show that the defendant

“knew or reasonably should have known” of interstate travel

or of the use of interstate facilities. We conclude, however,

that under the law of this circuit as established by Barnes

and Prince, it was necessary for a conviction of Rolls that the

jury find beyond a reasonable doubt that Rolls had actual

knowledge of Alsobrook’s interstate travel. Even so, we be-

lieve that the charge was sufficient, though it would have

been better to have charged that actual knowledge was neces-

sary but that if the jury concluded from all the facts and

circumstances that Rolls reasonably should have had such

knowledge, it could conclude that he did have such knowledge.

In any case, in view of the strength of the government's

proof as to the knowledge of Rolls that Alsobrook was

traveling in interstate commerce, the alleged error in the

charge was harmless.

The convictions of defendant Alsobrook in No. 79-5226 and

defendant Rolls in No. 79-5227 are affirmed.