Petition — Quick v. United States

. Supreme Court, v, S,

FILE D

—DEC 28 1980

80-1053

MICHAEL RODAK, JR., CLERK

NO. 80-1053

in the

Supreme Court

of the

United States

JACK V. QUICK,

Petitioner,

vs.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE FIFTH CIRCUIT COURT OF APPEALS

RONALD A. DION, ESQ.

ENTIN, SCHWARTZ, ANGERT

& DION

Attorneys for Petitioners

2020 N.E. 163rd St.,

Suite 300

No. Miami Beach, Florida 33162

Tel. No.: (305) 944-9100

QUESTIONS PRESENTED

Whether the Trial Court erred in failing to instruct

the Jury on the essential elements of the crime of

conspiracy to possess marijuana with intent to distribute.

TABLE OF CONTENTS

Page

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OPINION. BELOW .....ccccoscossicssedivenosechaniaibaocabensbbliains 2

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STATEMENT OF THE CASE ..u..........cescsscsssscsseseesees 4

STATEMENT OF THE PACTS .0..0.......cscsscsssescesesoees 5

BIR UREENT : ascrccssesssossshicconeosestinsehetnanoieanttaiiaimnialan 6

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TABLE OF CITATIONS

Cases Page

United States v. Beasley,

GED FG Bee CR Cir, 19 TG) cerervciseresoosssncssnserssegneese 8

United Staies v. Febre,

ADS F.2d 107 nd Cir, 19GB) ..ceccorccocerssessescocccosssccsesos 8

United States v. Martinez,

Fe ee Tee Gt 5 BIE) ccinscncocsncunsseiscdtovcachooness 8

ill

NO. 80-1053

in the

Supreme Court

of the

United States

JACK V. QUICK,

Petitioner,

vs.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE FIFTH CIRCIUT OF APPEALS

Petitioner prays that a Writ of Certiorari be issued

to review the judgment of the United States Court of

Appeals for the Fifth Circuit entered in the above

styled case on November 7, 1980.

RONALD A. DION, ESQ.

ENTIN, SCHWARTZ, ANGERT

& DION

Attorneys for Petitioners

2020 N.E. 163rd St.,

Suite 300

No. Miami Beach, Florida 33162

Tel. No.: (305) 944-9100

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is printed at

printed in the Appendix.

F.2d and is

JURISDICTION

The ju ‘gment of the United States Court of Appeals

for the Fifth Circuit was enterea on November 7, 1980.

The jurisdiction of this Court is invoked under 28 USC

1254.

STATEMENT OF THE CASE

Petitioner was indicted on July 31, 1979. Convictions

were returned by the Jury on numerous offenses including

Conspiracy to Possess with Intent to Distribute Marijuana.

An Appeal was taken to the Fifth Circuit Court of

Appeals. Petitioner’s convictions were affirmed by said

Appellate court by decision rendered November 7, 1980.

This Petition for Writ of Certiorari in the United States

Supreme Court follows:

STATEMENT OF THE FACTS

The facts which are required for this Court’s

understanding of the questions presented in this Petition

for Writ of Certiorari are that the Petitioner was charged

and convicted of Conspiracy to Possess Marijuana with

Intent to Distribute. At the time of charging the Jury,

the Trial Court failed to instruct as the elements of the

underlying offense upon which the Conspiracy was

based; to wit: possession of marijuana with intent to

distribute. Since the validity of said instruction is the

sole issue presented before this Court, further facts

need not be set forth. However, additional facts are

contained in the opinion of the Fifth Circuit Court of

Appeals decision rendered below and incorporated herein

by reference. See Appendix.

ARGUMENT

I

The Defendant was charged and convicted, along

with other charges, with Conspiracy to Possess Marijuana

with Intent to Distribute. In the Jury instructions, the

Trial Court failed to instruct as the elements of the

underlying substantive offense, possession of marijuana

with intent to distribute. Rather, the only instructions

which were given by the District Court were as follows:

What is charged now in Count Three is that

the defendant, Mr. Quick, together with others

conspired to knowingly and intentionally possess

with intent to distribute approximately a

thousand pounds of marijuana. That’s what ‘s

charged in court Three of the indictment. . .

* * * * *

What is charged here is that the defendant,

Mr. Quick, in conspiracy with others, conspired

to knowingly and intentionally possess with

intent to distribute, with intent to sell or give

away, distribute in some way, one thousand

pounds of marijuana in violation of this statute

He is charged with conspiring with others to

possess a thousand pounds of marijuana with

intent to distribute it.

* * * * *

What the evidence there, with regard to Count

Three, must show before you find the defendant

guilty is: One, two or more persons in some

way or manner came to a mutual understanding

to try to accomplish a common unlawful plan

to possess marijuana for the purpose of

distributing it. That’s what the evidence must

show...

Thus, the Court instructed the Jury that the

Defendant was charged with Conspiracy to Knowingly

and Intentionally Possess with Intent to Distribute

Marijuana, but never instructed the Jury as to the

legal definition of possession with marijuana with intent

to distribute.

It is generally accepted that the failure of the

Tria! Court to instruct the Jury as to the definition of

the underlying conspiracy is reversible error. The Jury

must be instructed on all of the essential elements.

“Failure of the Trial Court to instruct the

Jury on the elements of the substantive crimes

constituting the objects of the charge conspiracy,

i.e. (1) to import marijuana and (2) to possess

same with intent to distribute. There is nothing

in the charge to the Jury which apprise them

of the definition, character or nature of the

acts of importing, possessing, or distributing

marijuana. Moreover, the Trial Judge omitted

any reference to the substantive crime of

possessing with intent to distribute marijuana,

one of the objects of the charge conspiracy.

Only once, during the entire charge, did the

Court attempt to inform the Jury of the crime

with which appellants were charged, when it

instructed: “You, the Jury, determined from

all the facts and circumstances whether or not

a criminal conspiracy existed between these

two persons and others to import marijuana

from Mexico into the United States.”

United States vs. Martinez, 496 F.2d 664 (5th Circuit

1974).

Thus, it is reversible error to fail to instruct the

Jury as to the legal definition of possession and possession

with intent to distribute marijuana when it forms the

underlying objects of the conspiracy charged. This is

not a case as in United States vs. Beasley, 519 F.2d 233

(5th Circuit 1975), wherein the legal definition of the

underlying conspiracy has previously been charged to

the Jury as part of separate substantive offenses. The

record in the case of Bar fails to reveal any instructions

as to the legal definition of possession or possession

with intent to distribute marijuana. Nor is this a case

as in United States vs. Febre, 425 F.2d 107 (2nd Circuit

1969), wherein the Jury is specifically charged as to the

7.

underlying statutory offense upon which the conspiracy

is based and said underlying statute is read to the

Jury.

Rather, this is a case where no legal definitions of

any substantive related offense nor statutes were read

to the Jury. The sole instructions as to the definition of

the underlying object of the conspiracy was that the

Defendant together with others “conspired to knowingly

and intentionally possess with intent to distribute. . .

marijuana.

In the absence of reference to particular statutory

offenses or definitions of related substantive offenses,

said mere instruction without including the legal definition

of possession and possession with intent to distribute

marijuana is insufficient as a matter of law. See United

States vs. Martinez, supra.

CONCLUSION

For the above reasons and authorities cited herein,

it is respectfully requested that this Honorable Court

grant its Writ of Certiorari and enter its Order quashing

the decision hereby sought to be reviewed and grant

such other and further relief as seems right and

appropriate to this Court.

Respectfully submitted,

BY:

RONALD A. DION, ESQ.

ENTIN, SCHWARTZ,

ANGERT & DION

Attorneys for Petitioners

2020 N.E. 163rd St.,

Suite 300

No. Miami Beach F1. 33162

Tel. No.: (305) 944-9100

10

Appendix

Opinion of the Fifth Circuit Court of Appeals

_— =

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5729

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JACK VERNON QUICK,

Defendant-A ppellant.

Appeal from the United States District Court for

the Middle District of Georgia

( NOVEMBER 7, 1980)

Before GODBOLD, REAVLEY and ANDERSON, Circuit

Judges.

PER CURIAM:

Appellant Jack Vernon Quick was charged in a six

count indictment for kidnapping, drug conspiracy, and

Travel Act violations. The jury acquitted Quick on the

kidnapping charges, but convicted him on the conspiracy

to possess marijuana for distribution charge, 21 U.S.C.

§846, and the three Travel Act charges, 18 U.S.C. §1952.

The trial court entered judgment on the verdict,

App. 1

sentencing Quick to five years on the drug conspiracy

count, with a two year term of special parole, and to

concurrent five year terms on the Travel Act counts.’

Although he does not contest the sufficiency of the

evidence as to the drug conspiracy charge, Quick argues

that the evidence was insufficient to establish the Travel

Act violations, specifically that he travelled in interstate

commerce or used a telephone in interstate commerce

to facilitate the marijuana conspiracy. Quich. also contends

that the trial court’s instructions were plainly erroneous

as to the essential elements of the offenses involved.

We affirm.

Facts

The evidence adduced in the trial below revealed

that in August of 1978 Quick and Patrick Robinson

discussed the possibility of making money be selling

marijuana. Robinson informed Quick that he knew of

someone, Jim Ricks, who had three thousand pounds of

marijuana for sale. Quick told Robinson that he would

be able to raise a large sum of money for such a deal.

'Tn Bifuleo v. United States, __ U.S. ___, 100 S.Ct. 2247 (1980),

the Supreme Court held that §406 of the Comprehensive Drug

Abuse Prevention and Control Act of 1970, 21 U.S.C. §846, does

not authorize the imposition of a special parole term even though

that sanction is included within the penalty provision of §401(a) of

the Act, 21 U.S.C. §841(a). Since appellant was convicted of conspiracy

to possess marijuana for distribution in violation of 21 U.S.C. §846

and was sentenced to five years imprisonment with a two year

period of special parole, we note that he may move the district

court to correct his sentence as being illegal under Fed. R. Crim.

P. 35(a).

App. 2

Thereafter, a sale of one thousand pounds of marijuana

was negotiated between Robinson and Ricks for a price

of $150,000 with $68,500 to be paid on delivery as a

partial down payment. In his efforts to raise the $68,500,

Quick borrowed $30,000 from Walker Register, a father

of a friend, under the pretext of needing it for a real

estate deal. He borrowed another $1,500 from Robert

Withers and collected the rest from a group of investors,

including Matt Madson, James Irvin and Jerry Anderson.

The deal was to take place on August 17, 1978. On

that day, Madson, acting for the buyers, gave the money

to Ricks in Thomasville, Georgia. Ricks told Madson

the marijuana was coming by truck and that he would

contact him when it arrived. Madson left with Carl

Roberts, an associate of Ricks, and waited along with

the other buyers at a house near Tallahassee, Florida.

Ricks telephoned that evening and told the buyers that

the marijuana could be picked up at an abandoned

welcome station between Monticello, Florida and

Thomasville, Georgia. When Madson and Roberts arrived

at the designated location, they found no one and no

marijuana. They drove as far north as Thomasville

looking for Ricks and the marijuana, but they were

unsuccessful and returned to the house in Florida where

Quick, Anderson and Irvin were waiting.

When Irvin learned that the money had been lost,

he threatened to kill Roberts. Quick interceded and

took Roberts to his farm in Florida. Quick told Roberts

that he wasn’t going to get out of Quick’s sight until

they recovered their money or received the marijuana.

Once at Quick’s farm he and Roberts both made a

number of phone calls in a vain attempt to locate Ricks

App. 3

or the marijuana. The next day, Quick drove Roberts

back into Georgia looking for Ricks. They were again

unsuccessful. Subsequently, Roberts was allowed to

leave. Some weeks later Quick hired a private investigator

to locate Ricks. The investigator revealed the marijuana

conspiracy to the FBI. When confronted by the FBI,

Quick signed a waiver after being advised of his rights

and admitted his part in the scheme.

Sufficiency of the Evidence

Quick first argues there was insufficient evidence

that he violated the Travel Act because there was no

evidence that he possessed any marijuana. This argument

is without merit. The Travel Act, 18 U.S.C. §1952(a),

clearly prohibits interstate travel or the use of any

facility in interstate commerce to commit any crime or

unlawful activity, or any attempt to do the same.’ “Proof

that the unlawful objective was accomplished or that

the referenced law has actually been violated is not a

*18 U.S.C. §1952 provides in pertinent part:

§1952. Interstate and foreign travel or transportation in

aid of racketeering enterprises

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

any facility in interstate 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

activity; or

App. 4

Footnote (continued)

(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 the United States. (Emphasis added.)

necessary element of the offense defined in section

1952.” United States v. Pomponio, 511 F.2d 953, 957

(4th Cir.), cert. denied, 423 U.S. 874 (1975); accord,

United States v. Lisner, 524 F.2d 1263, 1264 (5th Cir.

1975) (§1952 “does not require that an accused be successful

at gambling in order to be found guilty of having travelled

interstate in the business of gambling”). Cf. United

States v. Villarreal, 546 F.2d 1145, 1146 (5th Cir.), cert.

denied, 431 U.S. 917 (1977) (because success is not an

essential element for a conspiracy conviction, court

upheld conviction for conspiracy to possess heroin for

distribution where conspirators were unable to obtain

the heroin).’

*Quick’s argument that a completed offense must be shown

relies primarily on United States v. Leslie, 411 F.Supp. 215 (D.

App. 5

Footnote (continued)

Del. 1976), which interpreted 21 U.S.C. §843(b) (prohibiting use of

a communication facility to facilitate a drug conspiracy). Leslie

held that even though a telephone was used in an attempt to

facilitate the possession and distribution of a controlled substance,

in order to obtain a conviction under §843(b) the felony alleged to

be facilitated must have reached fruition. However, §843(b), unlike

§1952, does not expressly cover attempts to violate the law.

Notwithstanding that distinction, the district court’s view in Leslie

has been repudiated by its own circuit, United States v. Pierorazio,

578 F.2d 48, 51 (3d Cir), cert. denied, 439 U.S. 981 (1978), and has

likewise been rejected by other circuits to have considered the

question. See United States v. Watson, 594 F.2d 1330, 1343 (10th

Cir. 1979), cert. denied, U.S.__, 100 S.Ct. 206 (1979). United

States v. Gomec-Tostado, 597 F.2d 170, 173 (9th Cir. 1979).

With respect to sufficiency of evidence challenges,

we must view the evidence adduced at trial and all

reasonable inferences therefrom in the light most

favorable to the government. United States v. Hawkins,

614 F.2d 85, 87 (5th Cir. 1980), (citing Glasser v. United

States, 315 U.S. 60, 80 (1942) ). “All reasonable inferences

and credibility choices must be made in support of the

jury verdict.” United States v. De Jean, 613 F.2d 1356,

1358 (5th Cir. 1980). If, when examined in that light, the

evidence is sufficient so that a jury might reasonably

conclude it is inconsistent with the hypothesis of the

defendant's innocence, then the jury’s verdict of guilty

must stand. Hawkins, 614 F.2d at 87.

In count four of the indictment, Quick was charged

with using the telephone from his house in Tallahassee,

Florida to communicate with Walker Register in Adel,

Georgia in order to raise money for the marijuana

purchase. Register testified that he had received two

App. 6

or three telephone calls from Quick in August of 1978

regarding a loan of $30,000 for an alleged real estate

deal. Register stated that at least one of these calls

was made a day or two before the cashier's check for

$30,000 was prepared. The check was dated August 17,

1978, and Quick’s telephone records demonstrated that

a call had been made from Quick’s residence in Florida

to Register’s home in Georgia on August 16, 1978.

Register gave Quick the cashier’s check for $30,000,

and through a series of transactions, Quick converted

the check into cash, which was in turn given to Ricks

on August 17. Under these circumstances, the evidence

was sufficient to show that Quick used his telephone in

interstate commerce to facilitate a drug conspiracy.

In count five, Quick was charged with travelling in

interstate commerce from Tallahassee, Florida to

Valdosta, Georgia to facilitate the marijuana conspiracy.

This count was based on the trip Quick made on August

18 in an attempt to locate Ricks or the marijuana.

Quick argues that the evidence is insufficient to support

his conviction on this count for two reasons: (1) because

the trip was not taken to promote a “business enterprise,”

which §1952 requires, and (2) because the trip was

undertaken without intent to further the marijuana

conspiracy, but merely in an attempt to recover his

money.

Section 1952(b\1) defines “unlawful activity” to

include “any business enterprise involving . . . controlled

substances ... .” Therefore, in order to sustain a conviction

under §1952(a) when the “unlawful activity” furthered

by interstate travel is one enumerated in §1952(b)(1),

the government must prove a connection between the

offense and an ongoing “business enterprise.” United

App. 7

States v. Gooding, 473 F.2d 425, 427 (5th Cir.), cert.

denied, 412 U.S. 928 (1973). If the underlying offense

involves controlled substances, the proof must show

that the defendant acted with the intent to further

something more than an isolated illegal incident. United

States v. Wander, 601 F.2d 1251, 1257 (3d Cir. 1979).

However, the proof need not establish that the illegal

objective was accomplished. United States v. Pomponio,

511 F.2d. at 957. The evidence herein showed that

Quick was instrumental in bringing together several

investors, raising nearly $70,000 in capital, for the purchase

of a half ton of marijuana. Clearly, Quick and his cohorts

did not intend to buy this quantity of marijuana for

personal use, or for an isolated illegal transaction. The

only plausible inference is that they intended the half

ton of marijuana to be the inventory for a large-scale

retail enterprise. See, e.g., United States v. Love,

599 F.2d 107, 109 (5th Cir.), cert. denied, US. ,

100 S.Ct. 302 (1979). That the attempt to purchase the

marijuana was only the first step in this enterprise

and, as it turned out, the last, cannot obscure the

obvious fact that a business enterprise was begun. We

hold this proof met the statutory requirement.

As to the second prong of Quick’s argument

challenging the sufficiency of the evidence to support

the guilty verdict on the fifth count, ie., a lack of

criminal intent, the evidence establishes that at the

time of the trip Quick was motivated, at least in part

by a desire to locate the missing marijuana.’ This is

‘The evidence shows that after Ricks failed to deliver the

marijuana on August 17, Quick told Roberts (Ricks’ associate),

App. 8

Footnote (continued)

“You are not going to get out of my sight until we get the money

back or we get the marijuana.” Furthermore, Roberts testified

that prior to the time when he made numerous phone calls from

Quick’s residence on the 17th, Robinson told him, “I was. . . to

make all the phone calls I could and try to find out what happened

in this situation and we were going to find the marijuana or the

money.” This evidence is sufficient to establish that Quick's interstate

travel on the 18th and the phone calls his coconspirator, Robinson,

caused to be made the night before were motivated at least in

part by a desire to find the marijuana.

sufficient to establish his intent to further an unlawful

activity. United States v. Tilton, 610 F.2d 302, 308 (5th

Cir. 1980).

In count six of the indictment, Quick was charged

with using or causing to be used a telephone in interstate

commerce to facilitate unlawful activity. This count

refers to phone calls made by Roberts, from Quick’s

residence in Valdosta, Georgia, in an effort to locate

Ricks after the marijuana was not delivered. The evidence

shows that after the aborted delivery of the marijuana,

Quick took Roberts to his farm in Florida and told him

to talk to Robinson. Robinson then told Roberts to

make telephone calls to all persons who might know

Ricks’ whereabouts. Roberts, who had earlier been

threatened, complied with those instructions. Quick

does not challenge the sufficiency of the evidence to

support his conviction on the marijuana conspiracy

charge, and as a coconspirator, he is, therefore, liable

for the acts of his coconspirators in furtherance of the

conspiracy. Tilton, 610 F.2d at 309, (citing Pinkerton

v. United States, 328 U.S. 640 (1946)). See United

App. 9

States v. Perrin, 580 F.2d 730, 736 (5th Cir. 1978), aff'd,

lt alibi , 100 S.Ct. 311 (1979). We hold the

jury’s verdict is supported by sufficient evidence to

sustain Quick’s conviction on count six.

Jury Instructions

Quick contends that the district court erred in its

instructions on the charge of conspiracy to possess

marijuana with intent to distribute because it failed to

enumerate the elements of the underlying substantive

offense.’ Because Quick failed to object to the court’s

charge, we review his claim under the plain error standard.

Fed. R. Crim. P. 52(b).

We hold that the trial court’s instructions were

not plainly erroneous. Essentially the same contention

as Quick makes here has already been rejected by this

court on two prior occasions. United States v. Metz,

608 F.2d 147, 158 (5th Cir. 1979); United States v. Marino,

562 F.2d 941, 945 (5th Cir. 1977), cert. denied, _U.S._, 98

S.Ct. 1647 (1978). The charge fairly informed the jury

of the elements of possession of marijuana with intent

to sell or otherwise distribute. “[A]Ithough a more detailed

definition of the substantive crime underlying the

conspiracy might have been desirable,” Metz, 608 F.2d

at 158, Quick has made no showing that a more detailed

instruction would have aided the jury in assessing his

‘The district court instructed the jury in pertinent part as

follows:

[W]hat is charged now in Count Three is that the

defendant, Mr. Quick, together with others conspired to

App. 10

Footnote (continued)

knowingly and intentionally possess with intent to distribute

“, approximately a thousand pounds of marijuana. That's

what is charged in court Three of the indictment. . . .

What is charged here is that the defendant, Mr. Quick, in

conspiracy with others, conspired to knowingly and

intentionally possess with intent to distribute, with intent

to sell or give away, distribute in some way, one thousand

pounds of marijuana in violation of this statute... .

He is charged with conspiring with others to possess a

thousand pounds of marijuana with intent to distribute

it.

What the evidence there, with regard to Count Three,

must show before you find the defendant guilty is: One,

two or more persons in some way or manner came to a

mutual understanding to try to accomplish a common

unlawful plan to possess marijuana for the purpose of

distributing it. That's what the evidence must show. . .

role in the conspiracy. Under the circumstances, the

charge was adequate. Read as a whole, it adequately

instructed the jury as to the definition, character and

nature of the acts that the conspiracy was designed to

achieve.

Quick’s final contention relates to the trial court’s

instructions on counts four and five of the indictment

— the Travel Act violations dealing with Quick's interstate

App. 11

telephone call to borrow $30,000 and with his trip on

August 18 from Tallahassee, Florida to Valdosta, Georgia.

Quick argues that the court’s charge with respect to

these two counts was erroneous because it failed to

inform the jury that conviction under §1952 required

proof that he performed or attempted to perform some

overt act, after the interestate travel or communication,

in furtherance of the marijuana conspiracy.’ Again,

because there was no objection to the charge, we are

governed by the plain error standard.

‘There are three elements to a violation under §1952(aX3): (1)

interstate travel or communication through an interstate facility;

(2) with intent to promote, manage, establish, carry on, or facilitate

the promotion, etc. of an unlawful activity enumerated in §1952(b);

and (3) thereafter performing or attempting to perform the promotion

of an unlawful activity.

With respect to count four, the district court charged the jury in

part:

What the evidence has to show there is that he did use

the telephone as alleged, and that he did it for this purpose

of furthering this illegal activity. That’s what the evidence

has to show, those two things, before you would be

authorized to find him guilty on Count Four.

With respect to count five, the court charged the jury in part:

What the evidence has to show there before you can

find him guilty is that he did travel from Florida into

Georgia with the intention of promoting this alleged illegal

activity and that he did so knowingly and purposely with

intent to do so.

Those things.

App. 12

An overt act in furtherance of the illegal activity

subsequent to an incident of interstate travel or

communication is an essential element of a Travel Act

violation. United States v. Hedge, 462 F.2d 220, 223

(5th Cir. 1972). The requirement of such an overt act

was communicated to the jury by the trial court during

its instructions, in that the relevant portions of the

indictment and §1952 were read to the jurors. Therefore,

when the court’s charge is read as a whole, it is apparent

that this element was included. Although the charge

did not fully emphasize the third element of a Travel

Act violation, we hold it to be adequate under the plain

error standard.

AFFIRMED.

App. 13