# Petition — Tamer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2159%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 827 ## Text Office-Supseme Covvt, U.S. 80-1979 |-#tEED i | 4 ‘ No. ——— MAY 23 1981 pe Te OS ere ae L. STEVAS, LERK | IN THE Supreme Court of the United States OcToBER TERM 1980 JAMES TAMER, Petitioner, V. Unitep States or AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT A. RAYMOND RANDOLPH, JR. MicHAEL B. WAITZKIN SHarP, RANDOLPH & GREEN Suite 501 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 659-2400 Attorneys for Petitioner Press or Byron S. ADAMS PRINTING, INC,, WASHINGTON, D. C. i QUESTIONS PRESENTED ° 1. Whether in a federal criminal trial a defendant who is charged in one count of an indictment with two separate offenses is entitled, upon request, to a una- nimity instruction directed at that count in order to protect his right to a unanimous verdict under the Sixth Amendment. 2. The Travel Act (18 U.S.C. § 1952) makes it a federal criminal offense to use the facilities of inter- state commerce to engage in ‘‘unlawful activity’’ under state law. The second question presented by this case is whether, in a Travel Act prosecution, the federal judiciary may, consistent with principles of federalism and this Court’s interpretation of the Travel Act, de- fine the predicate ‘‘unlawful activity’’ to include activ- ity that the legislature of the state has chosen not to make criminal under state law. *In addition to petitioner, Charles Goldfarb, James Abraham, Edward Monazyn and the Aladdin Hotel Corporation were ap- pellants in the court of appeals. Petitioner hereby joins in the Petition for a Writ of Certiorari filed simultaneously with this Petition by codefendant Charles Goldfarb, which raises three issues that affect the judgment of the court below affirming petitioner’s conviction. iii TABLE OF CONTENTS Page Quasrs0ns PRRSBNTED 2... cccccccccccccecesescococes i Ovsmtoms BRLOW ....cccccccccccccccccsccccccsccece 1 TURMDBOTION oc cccccccccccesccoccesiesecocccesecses 1 VOT ers MOCLAZONS LNVGUNED rressvcsssesceseaes 2 EATRMBNE oc ccccccccccccnsccccevessdeseeeneceence 2 Reasons ror Grantinoe tHe Writ QUE Fc cacccdsdveccstseucetcusteenenere 12 QURSNION, BE cccsctycevcinvctescdact capennveene 18 OONGMMNEE hs di ncindisceenana tiavenetabaenn 25 APPRMMEE A on ccccccccccncccscccsccccvecncsccecces la ASPBMVEE B unccccccccccccccsescccccccessccncccses 26a APPOMMEE © ca ccccccccrccccccvcscccsceccccocescese 43a DPUBNPE D oc sccccccscccsscccoccceccscccesvescvece 49a ApOMMOEE B owvcccccccccccccccsccvccscesccsscccces 55a APPBWOEE Fr nc cccccccccccccscccvecccceescccencsces 77a APOBNEE | oc cccccvcsoccveccevotessewsvespeccssnce 78a BER TE os 0 ccaed sc ecdéiwnasebas Ceiekesbene ee 79a iv TABLE OF AUTHORITIES Cases : Page Albernaz v. United States, —— U.S. —— (1981) (101 as BRED Kad CRUD IN TON e cab ededanebeteceenee Andres v. United States, 333 U.S. 740 (1948) ......... 14 Apodaca v. Oregon, 406 U.S. 404 (1972) ..........06. 14 Braverman v. United States, 317 U.S. 49 (1942) ..... 12, 15 Brown v. Louisiana, —— U.S. —— (1980) (100 S.Ct. PGE a hduarnsdbakadceeceedse dnendh wens geet es Burch v. Louisiana, 439 U.S. 925 (1979) ........5055. 14 Carter v. Kentucky, —— U.S. —— (1981) (101 S.Ct. BRUM wield ou as.n0k0eneeanedsd tacketsvaeneeades 16, 17 Erlenbaugh v. United States, 409 U.S. 239 (1972) ..... 24 United States v. Gordon, 464 F.2d 357 (9th Cir. 1972). 11, 24 Johnson v. Louisiana, 406 U.S. 356 (1972) ........... 14 Perrin v. United States, 444 U.S. 37 (1979) ...... 19, 23, 24 Rewis v. United States, 401 U.S. 808 (1971) ...... 19, 24, 25 Taylor v. Kentucky, 436 U.S. 478 (1978) .........005 16 United States v. Bass, 404 U.S. 336 (1971) ........... 19 United States v. D’ Amato, 436 F.2d 52 (3rd Cir. 1970). 24 United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) .. 10, 14, 15, 16, 18 United States v. Hiatt, 527 F.2d 1048 (9th Cir. 1975) .. 23 United States v. Kahn, 472 F.2d 272 (2d Cir.) ........ 24 United States v. Murray, 618 F.2d 892 (2d Cir. 1980) .. 13, 14, 17,18 United States v. Nardello, 393 U.S. 286 (1969) ... 21, 23, 24 United States v. Pavloski, 574 F.2d 933 (7th Cir. 1978). 17 United States v. Polizzi, 500 F.2d 856, cert. denied, 419 WdeT ED CUPPOE A Nc de bkabicccsedbengnssccceces —_, * a v. Wilkinson, 601 F.2d 791 (5th Cir. Vv Table of Authorities Continued Page Constitution, STaTUTES AND REGULATIONS: U.S. Constitution: Sixth Amendment ............. passim Oe Cy DOPE Crcwdh shwansbabneabs ul iden peoecens 2 Be a MEE bes Cac ah vevadeananoapsices 2, 3, 19, 24 SE ae RO aie cide adic abd siSanwhethavercewecs 2 BE UO hess rir ivadokiesned sepaVanderceouse 2 DES EAD Veet tir delvevaneespacewesaceecs 2 EEC eshevelscdekbuseenseednetessecs 17 Nev. Rev. Stat. NSB § 463.130 .......ccccccesescees 7 BeOT, TION, es WEBI oi ca vcccscvccasccvecces 2, 6, 22 OG ees: SI PIES Kien sidbncsocsdcaececeses 24 Prev. MOV, Wee: FRSR MTOR). .sccvesccasvcceccccce 2,5 SPOT es Sees BE as des vocesoihobaueseces us 2,5 BON, eels ONE END cbacsacteseccenstsuecseens 2,5 Ps es EE a vio c db cenesechocesdusnensses 7 Gaming Comm. Reg. § 3.100 ............005. 2, 3, 5, 7, 10 Gaming Comm. Bae. SB000 6... ccsncccccccccscs 2, 6, 21 Fed. Rules of Criminal Procedure, Rule 8(a) ........ 13 Fed. Rules of Criminal Procedure, Rule 3l1(a) ....... 14 Law Review ArRtIcLEs: Comment, United States v. Gipson, Duplicity Denies a ht to Unanimous Verdict, 1978 Det. C.L. Rev. ‘i No. —— IN THE Supreme Cowt of the United States OctToBER TERM 1980 JAMES TAMER, Petitioner, Vv. Unttrep States or AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT OPINIONS BELOW The opinion of the court of appeals (Pet. App. A, infra) is not yet reported. The opinion of the district court denying defendants’ motions to dismiss (Pet. App. B, infra) is reported at 464 F. Supp. 565. The opinions of the district court entitled ‘‘Opinion Deny- ing Motion to Dismiss No. 10’’ (Pet. App. C, infra), ‘‘Opinion: Multiplicity of Travel Act Counts’”’ (Pet. App. D, infra) and ‘‘Opinion Denying Post-Trial Mo- tions’ (Pet. App. E, infra) are not reported. JURISDICTION The judgment of the court of appeals was entered on March 5, 1981 (Pet. App. F, infra). On April 1, 1981, 2 the court of appeals denied a timely petition for re- hearing (Pet. App. G, infra). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISION, STATUTES AND STATE REGULATIONS INVOLVED The Sixth Amendment to the Constitution provides in pertinent part: In ail criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.... The pertinent portions of the Travel Act (18 U.S.C. § 1952) ; the federal conspiracy law (18 U.S.C. § 371) ; the Nevada statutes (Nev. Rev. Stat. §§ 463.150, 463.160(1)(a), 463.335 and 463.360); and Nevada Gaming Regulations §§ 3.100 and 3.110 are reprinted in Pet. App. H, infra. STATEMENT After a jury trial in the United States District Court for the Eastern District of Michigan, petitioner and co-defendants Charles Goldfarb, James Abraham, Ed- ward Monazyn and the Aladdin Hotel Corporation were convicted of conspiracy to violate 18 U.S.C. § 1952 (the Travel Act), in violation of 18 U.S.C. § 371. Gold- farb and Abraham were also convicted of violating the Travel Act. The jury acquitted petitioner of a similar charge. The court sentenced petitioner to three years’ imprisonment and a $10,000 fine (App. 5).’ 1**App.’’ refers to the Joint Appendix filed in the court of appeals. 3 The Travel Act prohibits the use of any facility of interstate commerce with intent to promote, manage, establish or carry on ‘‘any unlawful activity’? (18 U.S.C. § 1952(a)(3)). ‘Unlawful activity’ is defined as ‘‘any business enterprise involving gambling’”’ in violation of state law (18 U.S.C. § 1952(b)). The re- vised Indictment ’ in this case described the ‘‘unlawful activity’ as petitioner’s and Goldfarb’s ‘‘ownership, operation, conducting and carrying on of gaming op- erations’ of the Aladdin Hotel and Casino in Las Vegas, Nevada, without obtaining a state license and by concealing their interest in the Aladdin, in violation of Nevada statutes and Nevada Gaming Commission Regulations (App. 43-46). These alleged State law vio- lations were accomplished ‘‘through the use of inter- state telephone lines between Detroit and Las Vegas’’ (Pet. App. 55a). During the relevant period in 1976 and 1977, peti- tioner was a part-time employee of the Aladdin, serv- ing as Director of Music and Entertainment. Petitioner held the required work permit under Nevada law and although the corporate licensee (the Aladdin) identi- fied him to the Nevada Gaming Commission as a ‘‘key employee’? under Gaming Commission Regulation 3.100, the Commission decided not to require the peti- tioner to submit to a determination of suitability under that regulation. App. 679, 687-692, 865-869. Defendant Goldfarb became a part owner of the Aladdin in 1971, but when the Aladdin applied to the Gaming Commis- *The district court ruled that the original Indictment was multiplicitous and the government then elected the counts on which the defendants were tried (Pet. App. 49a-54a), 4 sion for a license, the Commission denied licensing with respect to Goldfarb because of his ‘‘unsuitable’’ background and associations (App. 627-628). Goldfarb thereupon disposed of his Aladdin stock, retaining an option to repurchase, and reapplied to the Commission for approval as a stockholder of the Aladdin (App. 628, 704). At the time of trial, his application was still pending (App. 628-629). The Indictment also named as defendants James Abraham, the Aladdin’s vice-president and general manager, and Edward Monazyn, a casino ‘‘host’’ employed by the Aladdin. The government’s evidence at trial consisted mainly of intercepted telephone conversations.’ These conver- sations showed that defendant Goldfarb participated in the affairs of the Aladdin by arranging for the hotel to extend complimentary services (room, food and bev- erages) and gambling credit to a large number of per- sons (App. 497A, 697, 711) and by attempting to assist the Aladdin Corporation in its efforts to refinance the hotel to alleviate cash flow problems (ibid.). With respect to petitioner, the government sought to show that he ‘‘was acting in capacities over and above that of Entertainment Director, as well as assisting Defendant Goldfarb in his continued surreptitious management of the Aladdin’’ (Brief for the U.S., at 13). The government introduced evidence of telephone conversations in which petitioner discussed the sale or *The government intercepted 14,000 of Goldfarb’s calls during a 70-day period and 3,000 of petitioner’s calls during a 30-day period (App. 714). At trial, the government introduced tape recordings of 96 of these calls. 5 refinancing of the hotel,‘ management of the casino and personnel matters. See, e.g., App. 505A-506A. In its post-trial opinion the district court summar- ized the government’s case against all defendants: ‘‘Goldfarb was charged with unlicensed operation of the casino, while Tamer was charged with concealing his true role there from Nevada authorities. Abraham was both a co-conspirator and an accomplice to Gold- farb’s crime. Monazyn was a co-conspirator’’ (Pet. App. 55a). As to the ‘‘unlawful activity’? under state law on which the Travel Act charges rested, the revised In- dictment charged in separate counts that petitioner and Goldfarb had violated a state statute, Nevada Re- vised Statutes § 463.160.1(a), and Nevada Gaming Commission Regulations 3.100 and 3.110 (App. 43-45).° The statute, which is set forth at Pet. App. 80a, pro- hibited ‘‘any person, either as owner, lessee or em- ployee’’ from operating or maintaining any game or slot machine in Nevada without first procuring and then maintaining any required state gaming license. Under Nevada law, a violation of this provision constitutes a gross misdemeanor. Nev. Rev. Stat. § 463.360(3). One of the Gaming Commission Regulations cited in the revised Indictment—Reg. 3.100—required that the Aladdin submit an annual report identifying each in- * The government also introduced financial reports of the Aladdin recovered during a search of petitioner’s business premises in suburban Detroit, Michigan, 5 The substantive count naming Goldfarb cited, in addition, Ne- vada Revised Statutes § 463.335 and Regulation 8.060 (App. 43). 6 dividual involved in the supervision or administration of gaming operations (Pet. App. 81a). Another cited Regulation (Reg. 3.110) defined persons listed in the casino’s annual report as ‘‘key employees”’ and author- ized the Gaming Commission to decide whether the public interest required that such key employees should be licensed (Pet. App. 82a). The Nevada gaming stat- utes authorized the Gaming Commission to adopt regu- lations in the public interest (Nev. Rev. Stat. § 463.- 150). However, there was no state statute making vio- lation of a Commission regulation a criminal offense. As a result, the government conceded before trial in this case that a violation of the Gaming Commission’s regulations could not constitute ‘“‘unlawful activity’’ within the meaning of the Travel Act.* The district court, however, refused to be bound by the government’s pretrial concession regarding the regulations. In its charge to the jury, the court in- structed (App. 1205-1206) : Now, as to the meaning of the phrase unlawful activity in the Travel Act, the State of Nevada has a comprehensive scheme of regulatory statutes. Under those statutes a gaming commission and a gaming board are established and they are com- manded to and have enacted regulations which have force of law. It is that law which defines unlawful activity. *See Brief in Support of Government’s Response in Opposition to Defendants’ Joint Motion to Dismiss the Indictment For Failure to State an Offense, reprinted at App. 138 (‘‘We do not quarrel with the defense position that violations of the regulations in and of themselvés are not criminal acts within the purview of the Travel Act.’’), 7 Earlier in the case, the district court ruled that under the Travel Act, a federal court is not bound by state court interpretations of state law (Pet. App. 32a-35a). During the trial, the court stated that even though there may be no unlawful state activity from Nevada’s perspective, a federal judge applying the Travel Act was free to interpret the state laws from a federal point of view and find the necessary ‘‘unlawful activity’’ under state law. See, ¢.g., App. 945-959. After giving the portion of the instructions quoted above, the court continued (App. 1206-1208) : Now, against this general background, the fol- lowing Nevada statutes are pertinent: Nevada Revised Statute 463.530 requires that all persons who require [sic] to become owners or sharehold- ers in a gaming operation must have come before the Nevada gaming authorities for determination as to the suitability for license. The Nevada gam- ing authorities then make a decision whether to then issue a license to an applicant. If they deny the re exaget a license, that person may not then thereafter exercise any ownership of, operation, conduct of the gaming affairs of the casino. Another Nevada statute, NSR 463.130, states that the violation of these Nevada ing statutes is a crime, a gross misdemeanor. Thus, by conceal- ment of his ownership or operation or conduct in the gaming conspiracy, a person may violate the Nevada laws. Keep in mind it is not the concealment itself which is the violation of the statute I have just discussed but rather the violation is the unlicensed ownership or operation of the gaming casino which is accomplished by concealment. I now take up another aspect of the Nevada laws on gambling. One of the regulations, [3.100], which 8 is mandated by Nevada statute is required [sic], all holders of non-restricted licenses to disclose to the Nevada gaming authorities names of all per- sons reso any Moca, maven control and influence over gaming. Any rig 7 in such activities must also be reported to the Nevada gaming authorities because of a strong state policy requiring disclo- sure of all persons who have significant control and influence as to gaming, and because of the statu- tory command that all gaming licenses which, whether held by a corporation such as the Aladdin Hotel or by individuals, must be maintained in conformity with all relevant provisions. I instruct you that it is illegal under Nevada gaming laws for anyone exercising a significant control and influence as to gaming to conceal that control and influence from the Nevada gamin authorities. The essence or gist of the violation have just outlined is concealment, for which fail- ure to disclose, this must be contrasted with the first instance of violation I described earlier, that violation having to do with an unlawful—or un- lawful licensing violation of the Nevada casino, where the concealment is a means to achieve the violation but not itself the actual unlawful activity. Petitioner objected to the foregoing instructions, which related to the conspiracy count of the Indict- ment, on the grounds that the court improperly deter- mined that violation of a Nevada Gaming Commission regulation could serve as the necessary ‘‘unlawful ac- tivity’? under the Travel Act and that the court had improperly instructed that concealment could consti- tute a violation of the Nevada gaming ‘“‘laws’’. App. 377-381. (Although the court had instructed that con- cealment was itself ‘‘illegal’? under Nevada law, see also Pet. App. 58a n.1, the government earlier in the 9 case had conceded that ‘‘concealment is not a crime’’ (App. 943).) Petitioner also objected to the court’s defining two possible conspiracies on which the jury could convict on Count 4 without at least giving petitioner’s proposed instruction requiring the jury to be unanimous with respect to a particular conspiracy (App. 382-383). The two conspiracies defined in the court’s charge were, as the court itself described them, (1) a ‘‘Goldfarb cen- tered’’ conspiracy to operate the Aladdin through Gold- farb’s unlicensed operation; and (2) a ‘‘Tamer cen- tered’’ conspiracy to operate the Aladdin by conceal- ing petitioner Tamer’s role (Pet. App. 62a, 58a n.1). The court’s failure to give the requested charge, peti- tioner argued, deprived him of his right to a unani- mous verdict because, for example, six jurors could have found that only the first conspiracy had occurred while six could have found that only the second had transpired and yet the jury could return a verdict of guilty on the conspiracy count. In post-trial proceedings, the government retreated from its concession at trial that a violation of the Nevada Gaming Commission regulations could not con- stitute ‘‘unlawful activity’’ within the meaning of the Travel Act. See p. 6 n.6 supra. After trial, the prose- cutor took the position ‘‘that a violation of the Regu- lations alone would predicate a Travel Act violation.’’' The prosecutor explained that this is why the govern- ment had not objected to the court’s instructions quoted *Government’s Omnibus Response and Memorandum ‘1 Opposi- tion to Defendant’s Post Trial Motions And Excepticus to the Jury Charge, at p.10 n.1. 10 above, which defined ‘“‘unlawful activity” in terms of the regulations alone." In its opinion denying defendants’ post-trial mo- tions, the trial court stated that if either one of its theories of ‘unlawful activity’? was incorrect, the con- victions on Count 4 (conspiracy) would have to be re- versed because ‘‘it would be possible that the jury con- victed on the basis of a conspiracy to do non-illegal acts’’ (Pet. App. 62a, n.3). As to the instructions re- garding the ‘‘Tamer centered’’ conspiracy, with con- cealment in violation of Regulation 3.100 as the ‘‘un- lawful activity’’ under the Travel Act (see Pet. App. 58a n.1), the court held that regulations were required. under Nevada law, that the regulations had the force of law and that unless an individual could be prose- cuted there ‘‘would be a gap in the effect of the statu- tory network”’ (Pet. App. 73a). The court also rejected petitioner’s argument that the court’s instructions on the conspiracy count deprived him of his right to a unanimous verdict. Distinguishing United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), the district court held that absent some evidence of impropriety, it must be presumed that a verdict is regular (Pet. App. 60a-62a). The court of appeals affirmed in a confusing opinion. In regard to the jury instructions on ‘‘unlawful activ- ity’’ within the meaning of the Travel Act, the court of appeals first characterized the district court’s opinion as holding that commission or attempted commission of a state criminal offense is not an essential element * Jd. The Government did not, however, withdraw its concession that a violation of the Gaming Commission Regulations did not constitute a crime under Nevada law, See p. 9 supra, 11 of a Travel Act violation (Pet. App. 6a). The appellate court later indicated that it agreed with the district court’s interpretation of Nevada law (id. at 17a). Nev- ertheless, the court observed that a violation of a Gam- ing Commission regulation could not ‘‘in and of itself’’ form the predicate state law violation under the Travel Act (id. at 12a). The court then appeared to suggest that because the government iad at one point dis- claimed reliance on the regulations alone, the verdict could be sustained on the basis that the jury had not been instructed that non-criminal Nevada regulations defined unlawful activity under the Travel Act (Pet. App. 14a-15a).° (The jury, of course, had been so in- structed and the government in its post-trial submis- sion recognized as much, justifying its failure to object on the basis that it had changed its view about whether a non-criminal regulatory violation, without more, could serve as ‘‘unlawful activity’? under the Travel Act, see p. 9 supra; Pet. App. 58a n.1). Although petitioner had devoted a significant portion of his appellate brief to the argument that the court’s instructions on the conspiracy count deprived him of his constitutional right to a unanimous verdict, the court of appeals never addressed the issue.” * Adding to the confusion, the court of appeals seemed to express disagreement with United States v. Gordon, 464 F.2d 357 (9th Cir. 1972), which held that violation of Nevada’s nonpenal gaming regulations did not constitute ‘‘unlawful activity’’ under the Travel Act, Pet. App. 14a, The court disposed of a duplicity argument by codefendant Goldfarb regarding his conviction on Count 1 of a substantive violation of the Travel Act by stating merely that the jury had been instructed its verdict had to be unanimous, Pet. App. 18a. 12 REASONS FOR GRANTING THE WRIT L The question whether petitioner was denied his right to a unanimous jury is raised not by a construction of the Indictment but by the trial court’s charge to the jury. The court instructed that the jury could convict on the conspiracy count if it found either an agreement to operate the Aladdin in violation of state law through concealment of petitioner’s role or an agreement to operate the Aladdin illegally under state law because of Goldfarb’s lack of a license.” In light of the instruc- tions setting forth two different conspiracies under a single count—one Tamer centered and one Goldfarb centered (Pet. App. 62a)—petitioner requested * an “In its opinion after trial, the district court held that it had instructed the jury on two conspiracies. The court stated that the jury was ‘‘told that either a Tamer-centered or a Goldfarb-centered agreement could be found, or both. .. .’’ (Pet. App. 62a). The court of appeals did not dispute the district court’s view of the jury instructions. This case is therefore not within the rule of Braverman v. United States, 317 U.S. 49, 53 (1942), that ‘‘the one agreement cannot be taken to be several agreements and hence several conspiracies be- cause it envisages the violation of several statutes rather than one.’’ See United States v. Wilkinson, 601 F.2d 791 (5th Cir. 1979). Here, the case went to the jury after a charge defining two agreements that could serve as the basis for a conviction on a single conspiracy count. Each alleged agreement constituted a separate offense. As the Court held in Braverman (id. at 53), ‘‘the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects.’’ 12 Before the close of the case, the court had indicated that it would charge two conspiracies, The court denied petitioner’s motion for judgment of acquittal, stating (App. 1161-1162) : As to the defendant Tamer, there is evidence that the de- fendant Tamer was involved in conduct, arranging—for ex- 13 instruction that the jury must be unanimous about the particular agreement forming the basis for the con- spiracy.” The trial court’s refusal to give a unanimity instruc- tion directed to the conspiracy count, we submit, vio- lated the petitioner’s constitutional right to a unani- mous verdict * and presents a question of recurring importance in the administration of federal criminal law. The issue, as Judge Feinberg recently stated for the court in United States v. Murray, 618 F.2d 892, 897 (2d Cir. 1980), poses ‘‘difficulties’’ for the federal courts and should “‘be authoritatively resolved at a higher level before too long.”’” tension of credit, for arranging for financing of the casino and in conduct involving personnel decisions. Thus, it could be found that he conspired with his co-defendants in concealing his real role and his involvement with the casino, as well as a conspiracy in which he joined to conceal the defendant Goldfarb’s real role in the Aladdin. 8 Petitioner’s proposed instruction is set forth at App. 325. Petitioner filed formal exceptions contesting the court’s failure to give his proposed charge or any other instruction protecting peti- tioner’s right to a unanimous verdict (App. 382-383). Rule 8(a) of the Federal Rules of Criminal Procedure requires that separate offenses be stated in separate counts of an indictment. We do not claim, however, that this rule of pleading was violated. The indictment itself appeared to charge a single conspiracy and the government represented at trial that Count 4 alleged only one conspiracy ‘‘against both [petitioner and Goldfarb] to own, manage and operate’ (App. 1170). It was the district court, without the concurrence of the prosecution or the defense, that devised instruc- tions encompassing two separate conspiracies. See note 11 supra. ** Emphasis added. The question in Murray was whether a single count charging a conspiracy to import and a conspiracy to dis- tribute marijuana and cocaine (21 U.S.C. §§ 846, 963) deprived the defendants of their right to a unanimous verdict. 618 F.2d at 896. 14 The difficulties mentioned in Murray do not stem from any dispute about whether unanimous verdicts are required. This Court has for many years adhered to the view that in federal criminal cases the accused’s Sixth Amendment right to trial by jury entails a right to a unaminous verdict.’* However, as Judge Wisdom stated in United States v. Gipson, 553 F.2d 453, 456 (5th Cir. 1977), ‘‘the scope of that right, unfortunately, is not”’ clear. In (Gipson two offenses were charged in a single count ” and the court’s instructions allowed the jurors to convict even if they did not agree about which of The court observed that there was a conflict in the circuits regard- ing whether these conspiracies, when charged in separate counts, could serve as a basis for multiple punishment. This conflict, the court stated, highlighted the difficulty and importance of the ques- tion actually presented in Murray (and in this case). Jd. at -%7. After the decision in Murray, this Court decided Albernaz v. United States, US. (1981) (101 S.Ct. 1137), which held that consecutive sentences could be imposed for a conspiracy to import and a conspiracy to distribute marijuana. In light of Alber- naz, there can be no doubt that Murray stands for the proposition that two separate conspiracies may be charged in a single count without violating the Sixth Amendment, Murray differs from the instant case because the defendants there failed to make a timely objection. See 618 F.2d at 899 n.8. See Andres v. United States, 333 U.S, 740, 748-749 (1948) ; Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972); and Justice Powell’s concurring opinion in Johnson and Apodaca, 406 U.S. at 369-371; compare Burch v. Louisiana, 439 U.S, 925 (1979) (state criminal trials). See also Rule 31(a), Fed. R. Crim. Pro. ** The instant case, like Gipson, does not involve a single count charging one offense committed by multiple means, Compare United States v. Murray, supra, 618 F.2d at 896; and see note 11 supra. 15 the two offenses the defendant had committed, so long as each juror thought that the defendant had commit- ted one or the other offense. The court reversed Gip- son’s conviction because ‘‘under the instruction, the jury was permitted to convict Gipson even though there may have been significant disagreement among the jurors as to what he did.’’ 553 F.2d at 458-459.” Discussing the ‘‘policy underlying the unanimous jury right,’’ Judge Wisdom reasoned that the unanim- ity rule, like the reasonable doubt standard, forces the jury to focus on the need for reaching a degree of cer- tainty about the facts and for deciding what the de- fendant actually did before determining whether he is guilty. 553 F.2d at 457-458. When, as in this case, a single count encompasses two possible conspiracies, the jury must be instructed to focus on the agreement ‘‘which embraces and defines [the conspiracy’s] ob- jects.’’ Braverman v. United States, supra, 317 U.S. at 53. Unless the jury is so instructed, the defendant’s right to a unanimous verdict is not secure. A general unanimity instruction, such as that given in this case near the end of the court’s lengthy charge, cannot substitute for the specific charge petitioner re- quested with respect to the conspiracy count. The court told the jury (App. 1232-1233) : Your verdict must represent the unanimous con- sidered judgment of each juror. In order to return your verdict, each of you must agree thereto, if you ean. Your verdict must be unanimour Under this general charge, the jurors could reasonably have thought that so long as they were unanimous that 18 See generally Comment, United States v. Gipson: Duplicity Denies Right to Unanimous Verdict, 1978 Det.C.L, Rev. 319, 16 petitioner entered into a conspiracy, their guilty ver- dict on Count 4 complied with the court’s instructions even though they disagreed on which of the two con- spiracies set forth in the court’s instructions was proven. As Judge Wisdom stated for the court in Gip- son, supra, 553 F.2d at 458, ‘Requiring the vote of twelve jurors to convict a defendant’’—which is all the general unanimity charge did in this case—‘‘does little to insure that his right to a unanimous verdict is pro- tected unless this prerequisite of jury consensus as to the defendant’s course of action is also required.” In order to implement constitutional rights, the Court in recent years has required trial judges, upon request, to instruct that a defendant’s failure to testify cannot be used against him (Carter v. Kentucky, —— U.S. —— (1981) (101 S.Ct. 1112)); that a defendant is presumed innocent (Taylor v. Kentucky, 436 U.S. 478 (1978); and that an indictment lacks evidentiary significance (ibid.). ‘‘Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law’’ (Carter v. Kentucky, supra, 101 8.Ct. at 1120). There is no sound reason why a federal defendant’s Sixth Amendment right to a unanimous verdict should stand on any different footing. When a defendant in a federal criminal case faces a single count of an indict- ment that encompasses two or more offenses, the defend- ant should at least be entitled to a specific unanimity charge with respect to that count. This Court’s reason- ing with respect to the Fifth Amendment privilege ap- plies as well to a defendant’s Sixth Amendment right: ‘A trial judge has a powerful tool at his disposal to protect the constitutional [right to a unanimous ver- dict]—the jury instruction—and he has an affirmative 17 constitutional obligation to use that tool where a de- fendant seeks its employment.’’ Carter v. Kentucky, supra, 101 §.Ct. at 1120. The Seventh Circuit appears to agree. Although sus- taining the conviction of a defendant who had not re- quested a specific charge aimed at a count charging two offenses, the court in United States v. Pavlosk:, 574 F.2d 933, 936 (7th Cir. 1978), indicated that it would reach a different result when a defendant has tendered ‘fan appropriate instruction to the effect that the jurors must agree on at least one act... .’’”® In the instant case, petitioner tendered such an instruction and neither the district court nor the court of appeals offered any reason why it should not have been given in order to protect petitioner’s Sixth Amendment right to a unanimous verdict. United States v. Murray, supra, and the cases there cited, 618 F.2d at 898-899, sustained convictions on counts charging two or more offenses on the basis that it could be ‘‘assumed”’ the jury acted unanimously. But a defendant’s Sixth Amendment right to a unanimous verdict, which ‘‘fundamentally implicates’’ the integ- rity of the fact-finding process,” should not be made to rest on an assumption when the defendant has re- quested specific protection through a jury instruction. Without such an instruction there is simply no way of assuring that the verdict is truly unanimous. The jurors themselves may otherwise not even be aware of 1° One count of the indictment in Pavloski charged both convert- ing and embezzling by means of forged checks, and skimming cash dues and initiation fees, in violation of 29 U.S.C, § 501(c). 574 F.2d at 936. *” Brown v. Louisiana, —— U.S. —— (1980) (100 S.Ct, 2214, 2223) (plurality opinion of Justice Brennan). 18 their differences. A vote of twelve to convict on the conspiracy count would not reveal, for example, that six jurors concluded petitioner had entered into an agreement different from that found by the remaining jurors. The growing complexity of federal criminal trials, as illustrated by this case, increases greatly the need for specific unanimity instructions in such situa- tions and the danger that a verdict of guilty on a count charging two offenses does not represent the conclusion of all twelve jurors that the defendant committed the same offense. The issue presented is significant. Only this Court can cure the ‘‘unfortunate”’ lack of clarity regarding the scope of a federal defendant’s right to a unanimous verdict.” The constitutional issue is squarely raised and review by this Court is warranted. IL The second important issue raised by this case is whether a federal judge, in a Travel Act prosecution, can substitute his judgment for that of a state legisla- ture in defining the illegal conduct under state law that serves as a basis for violation of the Act.” *1 See Judge Wisdom’s opinion for the court in United States v. Gipson, supra, quoted at pp. 14-16, supra; and Judge Feinberg’s remarks about the need for Supreme Court review in United States v. Murray, supra, quoted at p. 13 supra. *? As set forth more fully above, pp. 12-13 supra, the conspiracy count charged two district theories of illegality—a Goldfarb-cen- tered conspiracy and a Tamer-centered conspiracy. Both theories were grounded in the respective defendant’s alleged violation of the Travel Act. The manner in which the trial court instructed the jury required that both theories be valid. As the trial court con- ceded, if either theory were incorrect, the verdict must be set aside (Pet App. 62a, n.3), Thus, if the court’s interpretation of the Travel Act respecting petitioner’s conduct is erroneous, his con- spiracy conviction must be reversed. 19 The Travel Act is peculiar among federal statutes. It prescribes the use of any facility of interstate com- merce with the intent tg engage in ‘‘unlawful activity’’, a phrase the Act defines as ‘‘ violation of the laws of the State[s].” 18 U.S.C. § 1952(b). As this Court has ob- served, “the federal [offenses] are defined by reference to existing ... law.’’ Perrin v. United States, 444 U.S. 37, 42 (1979). In the Act, Congress struck a delicate balance between the traditional initiatives of the states and the interests of the federal government in a more aggressive response to organized crime. In so doing, Congress allowed federal law enforcement authorities to undertake prosecutions in certain limited situations where, although no substantive federal criminal stat- utes had been violated, certain state offenses had been committed through the use of the facilities of interstate commerce. The statute represents a considerable in- trusion into an area previously reserved to the states and, accordingly, this Court has recognized the need for a narrow interpretation in order to avoid altering ‘‘sensitive federal-state relationships.’’ Rewis v. United States, 401 U.S. 808, 812 (1971). See also United States v. Bass, 404 U.S. 336, 349-350 (1971).” The view of the Travel Act adopted by the courts below dramatically shifts this careful balance, granting prosecutorial authority to the federal government and criminal jurisdiction to the federal courts far beyond that contemplated by Congress. The courts below aban- doned the requirement that a defendant’s conduct must **The Travel Act did not expand the category of proscribed be- havior or make unlawful any conduct that had been previously unregulated. Instead, it converted existing state criminal laws into federal offenses. The Act thus enabled federal law enforcement authorities to assist the states in enforcing their laws. 20 violate an “existing state law’’ as positively enacted by the state legislature. Instead, the district court declared what it thought the state law sought to be, and found petitioner’s violation of that construction sufficient to justify prosecution under the Travel Act. Such an expansive interpretation of the Travel Act far exceeds the intentions of Congress, misinterprets the decisions of the Court, raises serious questions about the vagueness of the statute, and has significant federalism implications. Here there was no Nevada criminal statute proscribing petitioner’s conduct. None- theless, the trial court held the Travel Act to be appli- cable because petitioner’s conduct offended the policy underlying Nevada’s statutory and regulatory frame- work. The court found, that viewed from a ‘‘federal point of view,” petitioner’s conduct was unlawful and could therefore provide the necessary predicate for a Travel Act violation.“ A federal court in Michigan thus read into Nevada law a statute the Nevada legis- lature had never enacted. The ‘‘crime’’ petitioner ostensibly committed was conspiring to conceal his role in the management of the Aladdin Hotel from the Nevada Gaming Commission. Pet. App. 58a n.1. Such concealment is not a crime under the Nevada Revised Statutes, as the government ** As the court explained in colloquy with counsel (App. 945) : I would say it is the unlawful activity within the state viewed from the federal point of view. That’s different from saying the unlawful state activity. There may not be any unlawful state activity if you look at it from her standpoint, simply from the way a Nevada judge would at it. 21 conceded.” The district court, in its instructions and in its post-trial opinion described ‘‘the illegal conduct alleged against Tamer [as] causing to be concealed or aiding in the concealment of his true role at the casino— in violation of Regulation 3.100.1” (Pet. App. 58a n.1). The Nevada Gaming Commission is authorized by * The following colloquy occurred during argument on motion for judgment of acquittal (App. 932-933) : Tue Court: [I]f this prosecution were going on in Nevada, if this were not a Travel Act violation, if this were not Federal Court, if this were a State prosecution, there would be a great difficulty in this, would there not? There is a hole in the Nevada statute, is that not right? [Derense Counset]: Absolutely. [Prosecutor]: There are a lot of holes in the Nevada statute. Tue Court: No, there is a significant hole in the Nevada statute as a state procedure? [Prosecutor]: Yes, and that is entirely irrelevant to this Court’s determination, At a later point, the court inquired further (App. 940-941) : Tue Court: If I hear you correctly, what you are saying is that even though this may not be a violation under Nevada law, that under federal law, under Nardello [United States v. Nardello, 393 U.S. 286 (1969)], the concealment by the defendants here is a crime here, because otherwise the whole statutory scheme could be evaded. [Prosecutor] : That’s correct. The government reaffirmed this position in a submission to the court at the conclusion of trial, entitled Government’s Theory of the Case (App. 283) : [E]ven though concealing the name of a person who is in fact a gaming _— is not a violation of a specific Nevada statute, the ‘strong State policy on gaming’ has disclosure as its linchpin. Unless those charged with regulating gaming know who is conducting gaming, the entire investigative and review process at the State level becomes meaningless charade. The Nevada law pertinent to this case cannot reasonably be interpreted to have been enacted as an empty gesture. 22 statute to promulgate regulations in the public interest (Nev. Rev. Stat. § 463.150) and has certain authority to enforce its regulations, but a violation of those regu- lations is not a criminal offense, as the government also conceded (see pp. 8-9 supra). Although there was thus no state statute on which to base petitioner’s federal offense, the trial court held that it was not bound by the limitations of the state criminal code in defining ‘‘unlawful activity’? under the Travel Act: Ney are concerned with a question of federal aw; namely, the existence or non-existence of a Travel Act violation. I am not directly concerned with the content of the Nevada Gaming law. { <.y Denying Motion to Dismiss, Pet. App. a. Instead, the trial court ruled that the state law must be examined from :a ‘‘federal view”’ and from that per- spective the court must make a judgment whether a ‘‘violation of the laws of the State’’ had occurred: The federal judiciary is empowered to declare the governing law in areas that are substantially re- lated to a program of national governmental oper- ation. ... I view the issue as federal incorporation of state law by reference. That is, the Travel Act incorporates Nevada state law in the area of — ing. Considered thus, even more latitude in- She) in the federal judiciary. (Pet. App. 34a- The trial court examined the policies underlying Nevada’s regulation of gambling and concluded that the kind of conduct engaged in by petitioner could re- sult in the evasion of the entire statutory scheme. Therefore, although no specific state statute made con- 23 cealment unlawful, it was nonetheless ‘‘unlawful activ- ity’’ when considered from a ‘‘federal viewpoiut.”’ In the trial court’s view, the federal governinent was thus not to be restricted by either the state legislature or the state courts: To saddle the federal government with the state’s interpretation would allow the state to eviscerate the Travel Act and frustrate a federal solution to a problem of national scope. ... It would be self- defeating for the federal government to adopt state notions of illegality. (Pet. App. 35a.) In adopting this broad notion of the authority of fed- eral courts, the trial court relied upon this Court’s de- cision in United States v. Nardello, 393 U.S. 286 (1969), which it interpreted as holding that state law does not control and that ‘‘the essential question is whether the type of activity under prosecution is generally or usu- ally of a type subject to criminal sanctions” (Pet. App 36a), an interpretation the court adhered to throughout the trial. See n.25 supra. The lower court’s reading of Nardello constitutes an unwarranted and extraordinary expansion of the Travel Act. Nardello held only that the determination whether a defendant’s conduct is ‘‘unlawful activity’’ under the Travel Act does not turn on the particular label a state legislature attaches to a criminal statute, but whether the conduct involved is, in fact, in viola- tion of an existing state Jaw. (The indictment charged ‘‘extortion’’; the statute was labeled ‘‘backmail.’’) 393 US. at 539. The premise of Nardello—and the Travel Act—is that the defendant’s conduct or intended con- duct must be proscribed by some state criminal statute. See Perrin v. United States, supra, 444 U.S. at 48; United States v. Hiatt, 527 F.2d 1048 (9th Cir. 1975) ; 24 United States v. Kahn, 472 F.2d 272 (2nd Cir.), cert. denied, 411 U.S. 982 (1973) ; United States v. D’ Amato, 436 F.2d 52 (3rd Cir. 1970). In the absence of such a state penal law there can be no federal offense, as the court held in United States v. Gordon, 464 F.2d 357 (9th Cir. 1972), a prosecution based on a violation of Nevada Gaming Regulations and a case the court of appeals here sought to distinguish (Pet. App. 14a).” Neither Nardello nor any other decision of this Court has held—as the district court stated—that the issue underlying the applicability of the Travel Act is whether the ‘‘unlawful activity” is of a type ‘‘gen- erally or usually ... subject to criminal sanctions’ (Pet. App. 36a). In every case the question has been whether the violation of a specific, existing state crimi- nal statute may form the predicate for a Travel Act violation. See United States v. Nardello, supra (Penn- sylvania blackmail statutes); Rewis v. United States, supra (Florida anti-lottery laws); Hrlenbaugh v. United States, 409 U.S. 239 (1972) (Indiana book- making statute); Perrin v. United States, supra (Louisiana commercial bribery statute). *° Both the trial court and the court of appeals relied heavily on another Ninth Cireuit decision, United States v. Polizzi, 500 F.2d 856, cert. denied, 419 U.S, 1120 (1975). Unlike this case, the prosecution there was based on a violation of a specific section of the Nevada code, (Nev. Rev. Stat. § 463.170), which required that ‘fall persons having any direct or indirect interest [in a corpora- tion holding a gaming license] . . . whether financial, administra- tive, policy making or supervisory’’ be qualified to be licensed. While that statute might arguably have addressed petitioner’s conduct, it has since been repealed, Contrary to the court’s holding here, Polizzi held that ‘‘[a] violation of § 1952 . . . must be prem- ised upon another distinct violation of state or federal law’’ Id. at 869, 25 The contrary view, adopted by the trial court here in its opinions and its instructions—a view sanctioned by the court of appeals—expands the Travel Act to en- compass not only state criminal offenses but also state non-penal regulatory violations that a federal court believes ought to be criminal offenses. Such an un- bounded interpretation of the authority of the federal judiciary in Travel Act prosecutions is incons.stent with the intention of Congress, is a serious threat to “sensitive federal-state relationships’ (Rewis v. United States, supra, 401 U.S. at 812), and is com- pletely at odds with this Court’s decisions seeking to contain the Travel Act within its proper limits. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, A. RayMonp RANDOLPH, JR. MicHakEL B. WaItzKIN SHarp, RANDOLPH & GREEN Suite 501 1800 Massachusetts Avenue, N.W. Washington, D.C, 20036 (202) 659-2400 Attorneys for Petitioner May 1981 APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 79-5255, 79-5317, 79-5318, 79-5319, 79-5320 Unrrep States or America, Plaintiff-Appellee, v. Cuar.es Gotprars, JaMEsS TAMER, JAMES ABRAHAM, Epwarp Monazym, and Tue Atappin Hotei Corporation, Defendants-A ppellants. Appeal from the United States District Court for the Eastern District of Michigan. Decided and Filed March 5, 1981. Before: Weick, Livery and Brown, Circuit Judges. Weick, Circuit Judge. Appellants Charles Goldfarb and James Abraham appeal from judgments of conviction en- tered upon jury verdicts of guilty of the substantive of- fense prescribed by the Travel Act, 18 U.S.C. § 1952." All 218 U.S.C. § 1952 provides in pertinent part that: (a) Whoever 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, 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 . . . in violation of the laws of the State in which they are committed or of the United States, . . . 2a of the appellants appeal from judgments of conviction for conspiracy to violate the Travel Act, 18 U.S.C. § 371.’ The appeals were consolidated for oral argument. The appellants raise a number of issues on appeal® in their separate briefs. Each appellant assigns errors which 218 U.S.C, § 371 provides: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both, If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor, * These include the following: (a) Appellant Tamer raises issues dealing with the denial of his right to a unanimous verdict, the trial court’s failure to exclude certain evidence, the court’s instructions to the jury and denial of his motion to suppress. (b) Aladdin contends that the conspiracy against it was a legal and factual impossibility; that the indictment should have been dismissed for vagueness or in the alternative that the court erred in failing to grant the motion for a bill of particu- lars; and that the court erred in failing to grant its motion for severance. (c) Abraham contends that the evidence against him was in- sufficient to support his conviction ; that certain evidence of an uncharged conspiracy should not have been admitted; that certain in camera proceedings conducted to the exclusion of Abraham constitute reversible error; and that he was entitled to a mistrial as a result of the prosecution’s allegedly irrele- vant and prejudicial questioning of a character witness. (d) Monazym challenges the sufficiency of the evidence against him ; alleges the existence of multiple conspiracies and preju- 3a pertain specifically to the government’s case against him, and the appellants together present a number of common arguments. One such common argument has several facets and is variously formulated by each appellant. It relates to the treatment by the court of Gaming Regulations promulgated by the Nevada Gaming Commission pur- suant to statutory authority, violations of which appel- lants claim do not constitute unlawful activity as prohibited by the Travel Act. Disrict Judge Feikens carefully considered all of these issues in his “Opinion Denying Post Trial Motions” for judgments of acquittal, new trial, and arrest of judgment. App. 438-458. We agree with his decision and affirm the judgments of conviction for the reasons set forth therein on which we will elaborate hereinafter. Judge Feikens denied a pretrial motion of the defandants to dismiss the indictment in an opinion reported in United States v. Goldfarb, 464 F. Supp. 565 (E. D. Mich. 1979) in which he ruled upon the constitutionality of the Nevada Gaming Control Act and held it was not unconstitutional as being violative of the due process rights of defendant Gold- farb who was denied a gaming license. dicial variance; and claims violations of his 6th Amendment right to counsel as a result of the in camera proceedings which were conducted to his exclusion. (e) Other aspects of the ‘‘common argument’’ involve vari- ance and amendment of the indictment, and misstatements and misconstructions of Nevada statutes and regulations. (f) Each appellant expressly adopts the arguments of his co- appellants to the extent they apply pursuant to the Federal Rules of Appellate Procedure, Rule 28(i). All of these issues were carefully considered by District Judge Feikens in his ‘‘Opinion Denying Post Trial Motions’’ for judgments of acquittal, new trial, and arrest of judgment. App. 438-458, 4a In these appeals, the parties have filed four volumes of appendices, 4,000 pages of transcripts, and tapes recording conversations played for the jury but not included in the transcripts. Mostly issues of law are raised in the briefs. The brief of Goldfarb’s counsel commendably states: “The sufficiency of the evidence to sustain the jury verdict is not in question here.” Goldfarb had a remedy in the state court of Nevada which he invoked to compel the issuance of a license to him but he dismissed the suit. The trouble here is that Gold- farb and the other defendants, by concealment and viola- tion of Nevada statutes and their implementing regulations authorized by the statutes, were actually engaged in the illegal unlicensed management, maintenance, control and operation of the hotel and casino. Defendant-appellant Charles Goldfarb was a bondsman who resided in Birmingham, Michigan. In 1971, he and a small group of investors purchased the Aladdin Hotel and casino, located in Las Vegas, Nevada, which at that time was owned by the Recrion Corporation. Goldfarb then ap- plied to the State Gaming Control Board/Nevada Gaming Commission for licensure as a stockholder-officer of the new corporation, Aladdin Hotel Corporation. His request was denied when the Navada Gaming Commission determined that he had an “unsuitable background and unsuitable asso- ciations.” Goldfarb then divested himself of his eight per- cent (8%) interest in the hotel-casino. He later acquired an option to purchase stock from a licensed stockholder of the new corporation and reapplied for a stockholder’s license. That application is still pending and has not been ruled upon by the Commission. Apparently, it has not been pressed. 5a The bulk of the evidence presented against the appellants consisted of over 100 telephone conversations intercepted by the government agents pursuant to court authorization. In all, approximately 15,000 calls were intercepted. The conversations introduced at trial were between Goldfarb and his co-defendants: James Tamer, the Entertainment Director of the Aladdin; James Abraham, the Executive Vice-President and General Manager of the Aladdin, and Edward Monazym, a Casino employee, as well as some calls between third parties and the various co-defendants. The evidence adduced at trial showed that Goldfarb, hav- ing failed in his attempt to become a licensee owner of the hotel casino, did with the aid of the other defendants, main- tain a secret and illegal role in the ownership, operation, conducting and carrying on of the gaming operations of the hotel casino. He recommended complimentary services, in- cluding free accommodations, for certain customers and had a hand in arranging for the extension of credit for individuals whom he sent to the hotel. His advice and as- sistance was sought and given concerning certain financial problems of the hotel as well, including arrangements for emergency financing with false net worth statements to an unnamed bank or banks and also possible sale or lease of the hotel. He finally arranged for a loan from the Team- sters Pension Fund. The government contended that this was in keeping with the defendants’ scheme to engage in the clandestine ownership, conducting and carrying on of the gaming operations of the Aladdin by persons not li- censed to do so and whose interest in the casino had been concealed from the state in violation of certain Nevada statutes and regulations. The defendants contended that the evidence was per- fectly consistent with the fact that Goldfarb was a valued customer of the casino; a former investor, and possibly a future stockholder-officer of the corporation; a close asso- ciate of the management personnel of the hotel; and an 6a individual who had used his contacts to direct many so- called “highrollers” to the hotel, many of whom then became regular customers who lost large sums in gambling. This was a disputed issue of fact requiring resolution by the jury. The Travel Act, as applied to the instant case, required that a facility of interstate commerce (here a telephone) be used to promote, establish, carry on, etc., an unlawful activ- ity. “Unlawful activity” is defined as any business enter- prise involving gambling offenses in violation of the laws of the state in which they are committed.‘ There is some dispute as to the nature and essentiality of the underlying state law violation, although most decisions agree that it is the violation of federal law which is the gravamen of a Travel Act offense. United States v. Prince, 529 F. 2d 1108 (6th Cir. 1976), cert. den., 429 U.S. 838; United States v. Polizzi, 500 F. 2d 856 (9th Cir. 1974), cert. den., 419 U.S. 1120 (1975). Some courts hold that proof of the commission or attempted commission of a state defined criminal offense is an essential element of a Travel Act conviction, United States v. Hiatt, 527 F. 2d 1048 (9th Cir. 1975); United States v. Polizzi, supra; United States v. Kahn, 472 F. 2d 272 (2d Cir. 1973), cert. den., 411 U.S. 982, while others hold that it is not. United States v. Prince, 515 F.2d 564 (5th Cir. 1975), cert. den., 423 U.S. 1032; United States v. Goldfarb, 464 F. Supp. 565 (E. D. Mich. 1979). It is certainly true that the state crime need not be actually accomplished. United States v. Pomponio, 511 F. 2d 953 (4th Cir. 1975), cert. den., 423 U.S. 874. It is abundantly clear that as a predicate to a Travel Act conviction, absent a distinct violation of a law of the United States, the defendants must have engaged in some form of unlawful activity prohibited by the law of the State of Ne- * See footnote 1, supra, 7a vada. This contention is beyond dispute and amply sup- ported by the language of the Act and by the case law. The defendants-appellants were indicted on a four-count Revised Indictment.’ In Count One of the indictment, Gold- farb was charged with a substantive violation of the Travel Act. The alleged “unlawful activity” was the ownership, operation, conducting and carrying on of gaming operations of a Las Vegas, Nevada gaming ca- sino, the ALADDIN HOTEL AND CASINO, by a per- son who was not licensed by and whose interest in the gaming casino had been concealed from agencies of the State of Nevada in violation of Nevada Revised Sta- tutes, Sections 463.160.1(a)*® and 463.335,’ and Nevada * The original indictment consisting of 22 counts was found to be multiplicitous by the trial court. *NRS § 463.160(1)(a) provides: License required. 1. It is unlawful for any person, either as owner, lessee or employee, whether for hire or not, either solely or in conjunc- tion with others: (a) To deal, operate, carry on, conduct, maintain or expose for play in the State of Nevada any game or slot machine as defined in this chapter, or to operate, carry on, conduct or maintain any horserace book or spots pool ; * eo @ without having first procured, and thereafter maintaining in full force and effect, all federal, state, county and municipal gaming licenses as required by statute or ordinance or by the governing board of any unincorporated city or town. *NRS § 463.335 provides in pertinent part: Gaming employees required to hold work permits; hearings and review; confidential records; expiration of work permits. 8a Gaming Commission Regulations 3.100 paragraph 1, (b), (d), (f), (g) and (i), 3.100 paragraph 3,* 3.110° and 8.060."° 1. As used in this section: (a) ‘‘Gaming employee’’ means any person connected directly with the operation of a nonrestricted establishment, and in- cludes without limitation : (1) Boxmen; (2) Cashiers; (3) Dealers; (4) Floormen ; (5) Hosts or other persons empowered to extend credit or complimentary services ; (6) Keno runners; (7) Keno writers; (8) Machine mechanics; ° (9) Seeurity personnel ; (10) Shift or pit bosses ; (11) Shills; and (12) Superivsors or managers. ‘‘Gaming employee’’ does not include bartenders, cocktail waitresses or other persons engaged in preparing or serving food or beverages. . . . * Nevada Gaming Commission Regulation 3.100 provides in perti- nent part: Employee report. 1. Annually, on or before the 15th of July, each nonrestricted licensee, as defined in Reg. 4.030.1(b), shall submit an em- ployee report to the board on a form to be furnished by the board, The report shall identify every individual who is direct- ly or indirectly engaged in the administration or supervision of the gaming operations or physical security activities of such nonrestricted licensee. The following classes of gaming em- ployees are presumed to be actively and directly engaged in the administration or supervision of gaming: (b) All individuals who may approve or extend gaming credit in any amount, or whose recommendations in this regard are 9a The indictment alleges specific acts committed by Goldfarb in the course of the performance of the unlawful activity. ordinarily sought or followed : (c) All individuals who have the authority to supervise or direct a shift of any gaming or security activity, including but not limited to supervision or direction of the pit area, keno or bingo games, slot machines, race or sports books, pari- mutuel operations, or any persons having authority to super- vise or direct such persons ; (f) All individuals who may approve or extend to casino patrons complimentary house services other than beverages only ; (g) All individuals who supervise or direct other employees engaged in the control of gaming assets and revenues and record keeping, including the recording of cash and evidences of indebtedness, and the maintenance, review or control of the records, accounts, and reports of transactions which are re- quired to be kept pursuant to Reg. 6; (i) All individuals who individually or as a part of a group formulate management policy, 3. Any changes, additions, or deletions to any information contained within the annual employee report which occurs sub- sequent to the filing of the report and prior to the filing of the report for the next calendar year shall be reported to the board in writing no less than 10 days after the end of the calendar quarter during which the change, addition, or deletion occurred. * Nevada Gaming Commission Regulation 3.110 provides in perti- nent part: Key employee. 1. Any executive, employee, or agent of a gaming licensee having the power to exercise a significant influence over deci- sions concerning any part of the operation of a gaming licensee 10a Appellant Tamer was acquitted by the jury of the sub- stantive Travel Act count but was convicted of conspiracy. Count Three charged appellant Abraham with a substan- tive violation of the Travel Act in much the same language or who is listed or should be listed in the annual report re- quired by Reg. 3.100 is a key employee. 2. Whenever it is the judgment of at least 3 members of the commission that the public interest and the policies set forth in Nevada Revised Statutes Chapter 463, the Nevada Gaming Control Act, will be served by requiring any key employee to be licensed, the commission shall serve notice of such determi- nation upon the licensee. The commission shall not be restricted by the title of the job performed but shall consider the func- tions and responsibilities of the person involved in making its decision as to key employee status, Grounds for requiring licensing of a key employee which are deemed to serve the publie interest and the policies of the Nevada Gaming Control Act include but are not limited to the following: (a) The key employee is new to the industry, the particular gaming establishment, the position, or the level of influence or responsibility which he has and the board or commission has little or outdated information concerning his character, back- ground, reputation, or associations, or (b) Information has been received by the board or commission which, if true, would constitute grounds for a finding of un- suitability to be associated with a gaming enterprise. *° Nevada Gaming Commission Regulation 8.060 provides: Participation in operations. Except as and to the extent pro- vided in these regulations pertaining to emergency situations, or on written approval of the commission, no person who pro- poses to acquire an interest in any licensed gaming operation, in a licensee or in a holding company shall in connection there- with take any part or be permitted to take any part whatever, as an employee or otherwise, in the conduct of such gaming operations or in the operation of the establishment wherein such gaming operations are conducted during the pendency of his application for license or to be permitted to acquire such interest. lla as the charge against Goldfarb. The alleged unlawful activ- ity was based upon the same Nevada Statutes and Regula- tions.’ Abraham was alleged to have discussed with Gold- farb the extension of complimentary privileges to patrons of the Aladdin which constituted, directly or indirectly, the administration, supervision and influence of Goldfarb over the gaming operations of the Aladdin with the consent and assistance of Abraham and in violation of the aforemen- tioned statutes and regulations. Abraham was convicted on this count. Count Four is the conspiracy count of the indictment on which all of the defendants were convicted. It charged that the defendants willfully and knowingly conspired to use tf vilities of interstate commerce to promote, manage, estab- lish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, namely, the ownership, operation, conducting and carrying on of gaming operations of a Las Vegas, Nevada gan..ng Casino by persons who were not licensed to do so and whose interest in the gaming casino had been concealed from the State of Nevada and did thereafter commit acts in order to promote this unlawful activity, all in violation of 18 U.S.C. § 1952, 18 U.S.C. § 371. As before stated, the appellants filed two joint motions to dismiss the original indictment. Those motions apply equally to the revised four-count indictment. In the motion the appe!lants argued, inter alia, that Nevada Gaming Com- mission Regulations are not “law” for the purposes of crim- inal prosecutions. From the earliest stages of the proceed- ings, the defendants objected to and expressed concern over the notion that a violation of a Nevada Gaming Com- mission regulation could form the predicate state law viola- " The statutes and regulations relied upon are identical except that Count Three omits Nevada Gaming Regulation 3.100(1)(b) and (g). 12a tion required for a federal prosecution under the Travel Act. It could not in and of itself. In response to the motion to dismiss, the government stated that: ... the predicate “unlawful activity” in this prosecution arises from the violations of the cited Nevada statutes in each count. The additional citation to the regulations is solely to provide additional particularity in indicat- ing the application of the statute to the specific activity described in each count. We do not quarrel with the de- fense position that violations of the regulations in and of themselves are not criminal acts within the purview of the Travel Act.... We do not quarrel that the defendants would be en- titled to a charge that in order to find a defendant guilty of a particular count that it must find a defend- ant violated the provisions of the Nevada statute cited and described therein. (Government's Response to Motion to Dismiss Appen- dix p. 138-39.) Still claiming inability to comprehend and therefore de- fend against the charges, the defendant’s filed a joint mo- tion for a bill of particulars. The court requested the parties to agree among themselves as to the particulars which they apparently did. The court instructed the jury as follows: Now as to the meaning of the phrase unlawful activity in the Travel Act, the State of Nevada has a compre- hensive scheme of regulatory statutes. Under those statutes a gaming commission and a gaming board are established and they are commanded to have enacted regulations which have the force of law. It is that law which defines unlawful activity. 13a In Berman v. Riverside Casino Corp., 247 F. Supp. 248, 248 (D. Nev. 1964), aff’d 354 F. 2d 43 (9th Cir. 1965), the court held that regulations promulgated by the Nevada Gaming Commission “have the force and effect of law.” Cf. United States v. Polizzi, 500 F. 2d 856, 875 (9th Cir. 1974), cert. den., 419 U.S. 1120 (1975). N. R. S. 463.1594 specifically provides that the regula- tions are intended to implement the provisions of the stat- utes requiring disclosure of a corporate licensee’s key per- sonnel. Also, N.R.S. 463.150(2)(a) provides that the regu- lations shall prescribe “the method and form of application which any applicant for a gaming license . . . shall follow and complete ....” The court was thus required to include an instruction on regulations so that the jury would not completely disregard them. The court did not instruct the jury at any place that a violation of a regulation, in and of itself, constituted an “unlawful activity.” To give such an instruction would have been prejudicial error. United States v. Eaton, 144 U.S. 677 (1892); Singer v. United States, 323 U.S. 338 (1944). In United States v. Grimaud, 220 U.S. 506, 517 (1910) the court stated: From the beginning of the Government various acts have been passed conferring upon executive officers power to make rules and regulations—not for the gov- ernment of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legis- lated and indicated its will, it could give to those who were to act under such general provisions “power to fill up the details” by the establishment of administra- tive rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress or measured by the injury done. l4a Reliance by appellants on United States v. Gordon, 464 F. 2d 357 (9th Cir. 1972) is misplaced. That case held that bookmakers and their employees do not engage in illegal gambling business within the prohibition of federal law by violating nonpenal regulations of state gaming commission. Gordon appears to be somewhat in conflict with the subse- quent decision of the Ninth Circuit in Polizzi and is not even cited or discussed in Polizei. In United States v. Seelig, 622 F. 2d 207, 210 (6th Cir. 1980), we considered violations of the Controlled Sub- stances Act, 21 U.S.C. § 841(a)(1) and regulations promul- gated thereunder which were authorized by Congress. There, as here, the defendants contended that violations of the regulations did not constitute an offense. We stated: The combination of § 829(c) and § 822(b) thus requires a person to dispense or distribute a schedule V drug for a medical purpose and to be within the authority of their registration as determined by the Attorney General. Section 822(a) requires every person who dis- tributes or dispenses controlled substances to register with the Attorney General. Section 821 authorizes the Attorney General to promulgate rules and regulations relating to the registration and control of the manu- facture, distribution, and dispensing of controlled sub- stances. Section 871(b) authorizes the Attorney Gen- eral to promulgate and enforce rules, regulations and procedures that he deems necessary for the efficient execution of his functions. Although Congress was not as clear in this statute as in the one involved in Grimand, this Court is satisfied that the statute does expressly, albeit in a convoluted fashion, provide that a violation of the promulgated rules constitutes an unlawful act under the Controlled Substances Act. Thus, counts 1-165 do charge crimes. During the presentation of evidence to the jury in re- sponse to the defendants’ and the trial court’s desire to lia have the legal theory of the case made clear, the govern- ment filed a document entitled “Government’s Theory of the Case.” Here again, the government disclaimed reliance upon the Nevada Gaming Regulations alone, stating that: “to be sure, a violation of the Regulations which is not concomitant with a statutory violation will not support a Travel Act violation.” (Appendix, p. 283) Thus the violation of the Nevada statutes and implement- ing regulations would constitute unlawful activity under the Travel Act. The disclosure provisions required by Regu- lation 3.100 are cumulative to those contained in the Ne- vada statutes. N. R. S. 463.165, 463.339, 463.520, 463.530, 463.560. In any event, under the conspiracy count, the violation of the regulations alone would certainly be considered as overt acts by the defendants committing them which are ingredi- ents of the crime of conspiracy With this principle in mind, we now turn to the trial court’s instruction to the jury on the meaning of “unlawful activity” and the significance of the Nevada Gaming Regu- lations. The court first instructed the jury on Count IV of the indictment, the conspiracy charge. After preliminary mat- ters of defining conspiracy and its elements to the jury, the court began to instruct on the application of the Travel Act. After reading the Act, in pertinent part, the court in- structed on the meaning of the phrase “unlawful activity.” As a general background, the court instructed as follows: ... the state of Nevada has a comprehensive scheme of regulatory statutes. Under these statutes a gaming commission and a gaming board are established and they are commanded to and have enacted regulations l6a which have the force of law. It is that law which de- fines unlawful activity. In order to regulate gambling under Nevada law these statutes require full disclosures. Only through full and accurate disclosure of all persons who are connected with gambling in Nevada can the Nevada gaming au- thorities perform their functions in excluding from the industry all who are in the authorities’ opinions, unsuitable or undesirable for any number of reasons. (Appendix 1205-06) The court further instructed the jury on unlawful activity based upon a violation of Nevada statutory law as follows: Nevada Revised Statute 463.530 requires that all per- sons who require [sic] to become owners or sharehold- ers in a gaming operation must have come before the Nevada gaming authorities for determination as to the suitability for license. The Nevada gaming authorities then make a decision whether to then issue a license to an applicant. If they deny the applicant a license, that person may not then thereafter exercise any owner- ship of, operation, conduct of the gaming affairs of the casino. Another Nevada statute, NSR 463.130, states that the violation of these Nevada gaming statutes is a crime, a gross misdemeanor. Thus, by concealment of his owner- ship or operation or conduct in the gaming conspiracy, a person may violate the Nevada laws. Keep in mind it is not the concealment itself which is the violation of the statute I have just discussed but rather the violation is the unlicensed ownership or operation of the gaming casino which is accomplished by concealment. (Appendix, p. 1206-07) 17a The court then continued: I now take up another aspect of the Nevada laws on gambling. One of the regulations, [3].100, which is mandated by Nevada statute is required, [sic] all holders of non-restricted licenses to disclose to the Nevada gaming authorities names of all persons exer- cising significant control and influence over gaming. Any changes in such activities must also be reported to the Nevada gaming authorities because of a strong state policy requiring disclosure of all persons who have significant control and influence as to gaming, and because of the statutory command that all gaming licenses which, whether held by a corporation such as the Aladdin Hotel or by individuals, must be main- tained in conformity with all relevant provisions. I instruct you that it is illegal under Nevada gaming laws for anyone exercising a significant control and influence as to gaming to conceal that control and influ- ence from the Nevada gaming authorities. The essence or gist of the violation I have just outlined is conceal- ment, for which failure to disclose, this must be con- trasted with the first instance of violation I described earlier, that violation having to do with an unlawful or unlawful licensing violation of the Nevada casino, where the concealment is a means to achieve the viola- tion but not itself the actual unlawful activity. (Appen- dix, p. 1207-08) This in our opinion correctly stated the Nevada law. In the instruction on the substantive offense charge against Goldfarb, the court stated that: [hjeretofore I have discussed with you in considering the charge of conspiracy as to entail the meaning of the phrase unlawful activity. Without repeating those in- 18a structions that I gave you then with the request that you keep them in mind here, I specifically charge you that the unlawful activity which it is alleged the de- fendant Goldfarb engaged in is as follows:... The court then described a statutory theory based on Ne- vada Revised Statutes § 463.335 as was done in the con- spiracy charge. In concluding the instruction, the court again offered the jury the elements of unlawful activity: Additionally, in order for you to find the Defendant Goldfarb guilty of the charges contained in Count I of the indictment, the Government must also prove beyond a reasonable doubt either that: (1) Defendant Goldfarb willfully engaged in the own- ership, operation or conducting or carrying on of gam- ing operations of the Aladdin Hotel and Casino with- out a license from the Nevada Gaming Authorities to do so, or; (2) Defendant Goldfarb willfully concealed his owner- ship, operation or conducting or carrying on of gaming operations of the Aladdin Hotel and Casino from the Nevada Gaming Authorities for which he was not li- censed. Or both of these elements. (Appendix pp. 1217-18) This instruction was not duplicitous as claimed for either or both elements constitute an offense under Nevada law. The jury was also instructed that its verdict had to be unanimous. In its opinion denying post trial motions, the court relied on the Nevada statutes which it stated were broad enough to encompass Goldfarb’s conduct. (App. 440) IV The indictment charged Tamer with violating NRS 463.- 160.1(a) and Nevada Gaming Commission Regulations 19a 3.100(1)(i), 3.100(3) and 3.110. He was charged with per- forming as a “key employee” without being licensed to do so. Tamer was acquitted of the substantive Travel Act violation. After reading the indictment and summarizing the Travel Act, the court instructed on the meaning of “unlawful activity” as follows: Under Nevada gaming laws a casino (or non-restricted licensee as it is called) must report to the Nevada Gaming Authorities the identity of anyone who is di- rectly or indirectly involved in the casino’s administra- tion, that is, anyone who has a significant influence and control at the casino. The regulation that requires this disclosure has the force of law and its requirement of disclosure is in harmony with a number of other Nevada gaming statutes. Thus, under Nevada gaming law, it is required that the casino disclose the identity of any- one exerting significant influence and control at the casino. The disclosure is necessary so that the Nevada Gaming Authorities can regulate gambling by deter- mining that such a person should be licensed, if he is to continue the exercise of significant control and influ- ence at the casino. Now, the Aladdin itself is not charged with the violation. However, defendant Tamer is; it is charged in this indictment that defendant Tamer did, in concert with the Aladdin, cause his true role at the casino to be concealed from the Nevada Gaming Authorities, in violation of Nevada gaming laws. Vv As to Abraham, the district court in instructing on Count III of the indictment again carried through its interpreta- tion of “unlawful activity.” The court charged the jury as follows: The unlawful activity here charged is a certain kind of unlawful activity as is charged in Count I against De- 20a fendant Goldfarb, although the telephone call alleged in the indictment between defendant Goldfarb and de- fendant Abraham occurred on March 15, 1977. (Appen- dix pp. 1226-27) * ® e Additionally, in order for you to find defendant Abra- ham uilty of the charges contained in Count III of the indictment, the Government must also prove beyond a reasonable doubt that defendant Abraham aided and abetted defendant Goldfarb in either willfully engag- ing in the ownership, operation, or conducting or car- rying on of gaming operations of the Aladdin Hotel and Casino without a license from the Nevada Gaming Authorities to do so, or in aiding and abetting the de- fendant Goldfarb in willfully concealing his ownership, operation or conducting or carrying on of gaming operations of the Aladdin Hotel and Casino from the Nevada Gaming Authorities for which he was not li- censed; or both of these elements. (Appendix p. 1229) Thus the district court instructed the jury on the unlaw- ful activities; one based on the unlicensed operation of the Aladdin; the other based on concealment which found its origin in the court’s construction of the Nevada Statutes and Gaming Regulations, especially 3.100. In our opinion these instructions were correct. vi Goldfarb contends that there was a variance between the allegations in the indictment and the evidence which re- sulted in a judicial amendment of the indictment. Judge Feikens correctly dealt with these issues in his opinion denying post trial motions stating: It appears Goldfarb alludes to principles of variance and amendment. The two concepts are closely related. Variance refers to the failure of the government’s 2la proofs to conform to the indictment. A variance is not fatal to the prosecution unless the defendant could not reasonably have anticipated from the indictment what evidence would be presented at trial or unless the in- dictment is so vague as not to bar subsequent prosecu- tion on the same offense. United States v. Knuckles, 581 F 2d 305, 309-311, (2nd Cir), cert. denied 99 S Ct 581 (1978) ; United States v. Fruehauf Corp., 577 F 2d 1038, 1056 (6th Cir), cert. denied 99 S Ct. 349 (1978); United States v. Dunn, 577 F 2d 119, 123 (10th Cir 1978) ; Watson v. Jago, 558 F 2d 330, 333-34 (6th Cir 1977) ; United States v. Maselli, 534 F 2d 1197, 1201- 1202 (6th Cir 1976). A variance is not ground for re- versal unless the defendant’s substantial rights are abridged. United States v. Berger, 295 U.S. 78, 82 (1934). In this case I find no prejudicial variance. The apparent amendment claim needs more analysis, but it too is without merit. It is settled since Ex Parte Bain, 121 U.S. 1, 10 (1887) that neither the court nor the prosecutor may substantially change the indict- ment to “suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes .. .” This is in keeping with the principle that a court may not establish standards of conduct upon pain of imprisonment; such is the legislature’s domain. An amendment to the indictment is per se reversible error. United States v. Crocker, 568 F 2d 1049, 1059 (3rd Cir 1977), United States v. Fruehauf, supra, at 1056. An amendment may be express or “constructive” (effective). Jd. In determining whether there has been a constructive amendment inquiry should focus on wheth- er any essential element of the crime was proved by facts different than those alleged. Stirone v. United States, 361 U.S. 212 (1960). Thus, if the indictment al- leges one sort of false testimony but the government is permitted to prove another sort, false testimony being 22a necessary for conviction, an amendment has occurred. United States v. Crocker, supra. Similarly, in a Hobbs Act case, if a grand jury alleges one sort of interstate nexus while proof and argument show another, an amendment has occurred. Stirone v. United States, supra. See United States v. Prejean, 494 F 2d 495, 497 (5th Cir 1974) ; United States v. Vesaas, 586 F 2d 101, 103 (8th Cir’ 1978). In this case, there were three elements the government was required to prove: (1) the use of an interstate facility ; (2) actual or attempted promotion, etc. of an unlawful activity; (3) specific intent. United States v. Prince, 529 F 2d 1108, 1112 (6th Cir), cert. denied 429 U.S. 838 (1976). The proofs did not diverge from the course established by the requirement of these ele- ments. The only apparent argument available to Gold- farb (and the other Defendants) is that the grand Jury did not pass upon the exact shape of the illegal acts in Nevada, which it is their constitutional right to have done. I find this contention without merit. The grand jury needed to know enough of the Nevada gam- ing laws to make the indictment sufficient, which it did. My interpretation of Nevada gaming law presented Defendants with no new factual charges that they were required to meet, to use variance phraseology, nor did it ailow either proof or argument of a new factual basis for any element of the crime, to use amendment terminology. Moreover, the allegation as to the Ne- vada offense was broad enough to include the specific crime I have already explained. It has often been held that one way to guard against a constructive amend- ment claim is to draft an indictment with generality, United States v. Crocker, supra, at 1059, so long as it contains the necessary specificity. 23a Vil We find no prejudicial error in the court’s denial of Abraham’s motion to declare a mistrial because of improper cross-examination of a character witness. One of the char- acter witnesses was General Ralph G. Taylor retired from the United States Air Force. Attempts were made by Abra- ham’s attorney to introduce into evidence Abraham’s gal- lantry as an officer and pilot, his two tours in Vietnam and his communications with the White House. The court ex- cluded such evidence. We agree that it was not admissible except upon conviction to be considered in mitigation of the sentence. Error was assigned as to the cross-examina- tion of the character witness Lovell, a former city attorney in Las Vegas, who volunteered that Abraham enjoyed a good reputation with Nevada’s “law enforcement com- munity.” He was asked upon cross-examination whether he had heard that in order for a shop or store to do business with Aladdin Hotel Corporation to obtain store space in the area that payments were made personally to Abraham, not to the corporation. Lovell answered, “No, I don’t know that.” Before asking the question at a side bar conference with the court not in the presence of the jury, the govern- ment produced evidence showing justification namely, the cancelled check and the court permitted the question to be answered and gave proper instruction to the jury as to its purpose. Further proceedings developed thereafter includ- ing rebuttal and surrebuttal evidence and when it appeared to everyone that this was creating a trial within a trial, the government moved to withdraw the question, in which counsel for Abraham joined. The trial court granted the motion finding that “... the spirit of Michelson v. United States, 335 U.S. 469 (1948) had been observed and the pre- judice, if any, was dissipated in Abraham’s favor.” App. 452, 453. We find no abuse of discretion on the part of the District Judge in his handling of these issues. 24a Abraham and Monazym assign error because the trial court held certain in camera proceedings to which they were not admitted. Abraham and Tamer assign error in the admission of evidence of tape recorded conversations and documents tending to prove that Goldfarb and Tamer used their influence with Leonard, the Prosecuting Attorney of Genesee County in local court proceedings which Tamer believed would assist him in securing a license in Nevada. A special Grand Jury sought to return an indictment against Mr. Leonard which was not signed by the United States Attorney. Chief Judge Kennedy who conducted the im camera proceeding, wrote an opinion ordering the files sealed. The trial judge ordered that the defendants who had not participated in the in camera proceedings be given access to them. The government had issued a subpoena for the testimony of Mr. Leonard but obtained a stipulation from all defense counsel which obviated the necessity for its production. We find no abuse of discretion on the part of the trial judge nor any prejudice to Abraham and Monazym (See Opinion Denying Post Trial Motions, (App. 456)), nor was there any abuse of discretion in denying the motions for a severance or Tamer’s motion to suppress evidence. Vill Appellant Monazym challenges the sufficiency of the evi- dence to support his conviction by the jury. The evidence is detailed by the District Judge in his Opinion Denying Post Trial Motions. (App. 449, 450). The evidence and the in- ferences to be reasonably drawn therefrom must be viewed in the most favorable light in favor of the government. Glass v. United States, 315 U.S. 60 (1942); United States v. Dye, 508 F. 2d 1226 (6th Cir. 1974); United States v. Green, 548 F. 2d 1261 (6th Cir. 1977). So viewed, we are of the opinion that the verdict of the jury is supported by 25a abundant evidence. In our opinion, the indictment charged only a single conspiracy. Aladdin contends that the district court erred in denying its motion for a severance. It alleges that it could not de- fend itself except through the testimony of its alleged agents, who, as defendants in this joint trial, had counter- vailing Fifth Amendment rights not to testify. The trouble with this argument is that the proof at the trial showed that conspiratorial acts were committed by at least six other officers, agents and employees of Aladdin who were not defendants. Aladdiu did not call any of them to testify in its behalf. No showing was made by Aladdin that any of its officers, agents or employees were willing to testify in its behalf or exculpate it. There was no showing that in separate trials any defendant would waive his Fifth Amendment privilege. This matter was addressed entirely to the sound discre- tion of the district court. Aladdin had a heavy burden to overcome which it was unable to do. Cf. United States v. Vigil, 561 F. 2d 1316 (9th Cir. 1977). Conclusion The judgments of conviction are affirmed. 26a APPENDIX B UNITED STATES DISTRICT COURT, E. D. MICHIGAN, 8S. D. Crim. A. No. 8-80572. Jan. 2, 1979. Unrrep Srates or Amenica, Plaintiff, v. Cartes B. Gotprars, James Tamer, Epwarp Monazym, James ApranaM, and Atappin Horen Corporation, Defendants. Opinion Denying Defendant Goldfayb’s First Motion to Dismiss Indictment (16) Ferkens, District Judge. Several individuals and the Aladdin Hotel Corporation were indicted in August of 1978 on one count of violating 18 U.S.C. §371 (conspiracy), 19 counts of violating 18 U.S.C. § 1952 (“Travel Act”), and two counts involving 18 U.S.C. § 1962 (“RICO”). The indictment charges that between December of 1976 and March of 1977 the defendants used interstate telephone lines to own and operate the Aladdin Hotel & Casino with- out having procured licenses required under Nevada law. Relevant Statutes and Regulations Under Nevada law it is unlawful for any person either as an owner or employee to operate or maintain any gam- bling establishment without first procuring and thereafter maintaining all permits and/or licenses which the state or local government may require. Nev.Rev.Stat. § 463.160.1(a) 27e. Two other sections define exactly who must possess a license. Under Nev.Rev.Stat. § 463.530 certain “key em- ployees” of gaming licensees (such as the Aladdin) may be required to apply for licenses before the Nevada Gaming Commission if in the Commission’s opinion the public in- terest will thereby be served. The Commission learns who it should require to submit to licensure scrutiny by requir- ing an annual report from each licensee identifying every individual directly or indirectly engaged in the administra- tion or supervision of the gaming operations. Certain em- ployees are presumptively so engaged. They are, any in- dividual who: may approve or extend gaming credit or whose recommendations in this respect are ordinarily fol- lowed; supervises or directs or who has the authority to supervise or direct a gaming shift; may approve or extend complimentary house services; supervises those who con- trol gaming assets or records; and, anyone who helps to formulate management policy. Nevada Gaming Commission and State Gaming Control Board Regulation 3.100.1(b), (d), (f), (g) & (i). Regulation 3.110.1 defines any employee or agent having significant influence over the licensee’s operations or who is listed in the annual report as a “key employee” who may be required to submit for licensure. Regulation 3.110.2 sets forth the criteria upon which the Commission decides which key employees must be licensed. Regulation 8.060 provides that no one who proposes to acquire an interest in a gam- ing operation shall take any part in the management thereof during the pendency of his application for li- censing. Under Nev.Rev.Stat. § 463.335 persons defined as “gam- ing employees” may not be employed unless they hold all work permits required by the city or county in which the work is performed. Persons empowered to extend credit or complimentary services are considered “gaming employ- ees.” Nev.Rev.Stat. § 463.335.1. 28a The penalty provision of the Gaming Control Act pro- vides : The violation of any of the provisions of this chapter, the penalty for which is not herein specifically fixed, is a gross misdemeanor. Nev.Rev.Stat. §463.360. The relevant federal statute is 18 U.S.C. § 1952 (Travel Act) which provides: (a) Whoever travels in interstate or foreign com- merce or uses any facility in interstate or foreign commerce, including the mail with intent to— (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establish- ment, 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 any business enterprise involving gambling .. . in vio- lation of the laws of the State in which they are com- mitted or of the United States .... [emphasis added] The government’s theory appears to be that Tamer, one of the defendants and the Entertainment Director at the Aladdin, maintained such influence there that he would have been required to hold a license under Nevada law had the extent of his control been known to the Nevada gaming authorities; that he concealed that control; that he was not so licensed and thus violated § 463.160(1). Secondly, the government alleges that Goldfarb maintained a hidden in- terest in the Aladdin, exercising such control over its activi- ties that had his interest been disclosed, he, too, would have been required to submit to licensure and hold a license under aither § 463.160 or § 463.335; that he did not so sub- contains the necessary specificity. 29a mit nor was he licensed. The government claims that the other defendants conspired and acted to aid and facilitate this unlawful conduct, were inextricably bound up in what amounted to an illegal business enterprise to violate the Nevada gaming laws, and that they used interstate tele- phone lines to commit those violations. As factual background, in 1971 Goldfarb applied for per- mission to become an incorporator of the Aladdin under a Nevada statute which at that time so provided. His appli- cation was denied. Subsequently, he applied for licensure as a shareholder, but protested a “waiver of rights” form that was required as a part of the application. The result was that the Nevada Gaming Control Board failed to proc- ess the application until in June of 1974 a suit was insti- tuted in the 8th Judicial District of Nevada, the district which includes Las Vegas. In June of 1978 the suit was dis- missed without prejudice when the Board agreed to with- draw the waiver. At no time relevant to these proceedings was Goldfarb licensed either to be employed by, own or manage the Aladdin. Tamer held a permit to be employed as the Entertainment Director of the Aladdin but is not licensed to otherwise participate in its management. Defendants move the indictment be dismissed because the Nevada Gaming Control Act is unconstitutional. The Defendants’ Theory The Nevada Gaming Control Act has been definitively construed by the Nevada Supreme Court as setting forth a scheme in which gaming is viewed as a matter reserved to the states within the meaning of the Tenth Amendment to the United States Consti- tution. Within this context we find no room for feder- ally protected constitutional rights. This distinctively state problem is to be governed, controlled and regu- lated by the state legislature and, to the extent the 30a legislature decrees, by the Nevada Constitution. It is apparent that if we were to recognize federal protec- tions of this wholly privileged state enterprise, neces- sary state control would be substantially diminished and federal intrusion invited. [footnotes omitted] State v. Rosenthal, 599 P.2d 830, 836 (Nev. 1977). How- ever, the court distinguishes between applicants and li- censees. A reasonable distinction exists between the status of one who seeks to acquire a license, and the status of one who possesses a work permit as a gaming em- ployee. The former does not have existing privileges, but is attempting to acquire them. The latter does have an existing privilege, and is entitled to receive notice and a hearing before his privilege to work as a gaming employee can be nullified. Id., at 837. Goldfarb claims that Rosenthal, as the pronouncement of the court of last resort in Nevada, binds this court, citing, inter alia, Quong Ham Wash v. Industrial Accident Com- mission, 255 U.S, 445, 41 S.Ct. 373, 65 L.Ed. 723 (1921); Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed, 254 (1921) and United States v. Twelve Two Hundred Foot Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) ; and that the Rosenthal case is, with the statute it construes, a unitary piece of law, the case and statute are inseparable. Goldfarb next contends that one in his position—that of a license applicant—has certain constitutional rights which may not be so cavalierly abridged. He emphasizes the in- terpretation of the due process which holds that “the touch- stone of due process is protection . . . against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974), and notes that due process protections are not dependent upon 3la whether the interest at issue is characterized as a right or a privilege. Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Goldfarb claims that the right to engage in a lawful oc- cupation is a “fundamental one” whose denial should be attended by due process protections. New State Ice Com- pany v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932) ; Hampton v. Mow Sum Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Cafeteria Workers v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). More specifically, Goldfarb characterizes it as either an interest in “property”, as defined in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (protected interests are claims to a benefit to which the holder has “more than an abstract need or desire ... more than a unilateral expectation... [but] instead ... a legitimate claim of entitlement . . .”) and Perry v. Sundermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), or in “liberty” under either the inter- pretation which describes government actions which fore- close a range of opportunity as implicating protected in- terests, Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1967) (denial of admission to the practice of law); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (denial of accountant’s right to practice before the Board of Tax Appeals) ; or the interpretation explained in Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Goldfarb concludes that because the Nevada Gaming Control Act has been construed in a manner violative of his 1 Nev.Rev.Stat, § 463.130(2) states: Any license issued pursuant to this chapter shall be deemed to be a revocable privilege and no holder thereof shall be deemed to have acquired any vested rights therein or thereunder. 32a and other license applicants’ constitutional rights it is un- constitutional and, therefore void. As a logical concomit- ant, he believes there can be no prosecution under the Travel Act. Findings and Conclusions I cannot agree that I am bound by the Nevada Supreme Court’s pronouncements in Rosenthal with respect to the Gaming Act. The Rosenthal decision is not inextricably bound to that statute. There are many cases which say that a state court’s con- struction of its own statute is conclusive upon federal courts. See, for example, Quong Ham Wah v. Industrial Accident Commission, supra, 255 U.S. at 448, 41 S.Ct. at 374, where the Court states: It is elementary that this court is without authority to review and revise the construction affixed to a state statute as to a state matter by the court of last resort of the state. However, the crucial distinction between that situation and the instant one is that in Quong Ham the question involved the substance of state law. Here, we are concerned with a question of federal law; namely, the existence or non-existence of a Travel Act vio- lation. I am not directly concerned with the content of the Nevada gaming law. The Travel Act is violated when acts illegal in Nevada are performed. The content of state law is a state matter under Quong Ham; but that does not mean that I am bound by Nevada’s pronouncements as to the constitutional ramifications of that content.’ *To further illustrate this distinction, consider a situation in which it is claimed that a statutory scheme is unconstitutional] be- cause it fails to provide sufficient judicial review of an administra- tive body’s determination, The nature and extent of the judicial 33a Defendants maintain that the operative distinction in this case is between situations where the federal court is applying state law and those in which the federal court is interpreting state law (page 3 of Defendant’s Supplemental Memorandum) ; the former situation being the one in which the federal court is “bound”. I agree. Defendants err in characterizing this case as one in which I am applying state law. Due to the overriding federal purpose served by the Travel Act, I must interpret all of the laws implicated by this prosecution, including Nevada law. I am, therefore, not bound by the Rosenthal decision, whatever its consti- tutional merits or infirmities. The case of Angel v. Bullington, 330 U.S. 183, 189, 67 S. Ct. 657, 91 L.Ed. 832 (1947) illustrates this principle. Angel was a diversity suit in which the Court acknowledged that North Carolina’s construction of a jurisdictional statute was binding insofar as the state court had determined the statute’s meaning and application to the suit’s parties. The statute operated to bar the plaintiff’s claim. He argued that, as such, it constituted an unconstitutional limitation on the state court’s jurisdiction. The defendant responded that the state court had found no violation and that this was a mat- ter upon which the state court’s conclusion was preclusive. The Supreme Court disagreed and explained “[w]hen an asserted federal right is denied, the sufficiency of the grounds of denial is for this Court to decide.” Jd., at 189, 67 S.Ct. at 660. Elaborating, the Court stated: . where resort is had to a federal court not on grounds of diversity of citizenship but because a fed- eral right is claimed, the limitations upon the courts of a State do not control a federal court sitting im the review available would be a question of state law. However, the effect severely restricted judicial review would have on the statute’s constitutionality would not be a state but federal question. In the latter, what the state court says is not binding on a federal court. 34a state. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743. Id., at 192, 67 S.Ct. at 662. [emphasis supplied] I believe the instant case is analogous to Angel. The federal court is the forum here because federally created rights and liabilities are at issue. The Travel Act implements a federal solution to a federal problem. This principle was dealt with perhaps more perceptively in P. Mishkin, “The Variousness of Federal Law: Compe- tence and Discretion in the Choice of National and State Rules for Decision,” 105 U.Pa.L.Rev. 797 (1957) (herein- after “Mishkin”).* The author observes that state enactments are not self sufficient for all purposes. The federal judiciary is empow- ered to declare the governing law in areas that are sub- stantially related to a program of national governmental operation. Jd., at 800. The Travel Act’s legislative history demonstrates clearly its purpose to combat a problem of uniquely national scope: organized racketeering and crime. United States v. Nardello, 393 U.S. 286, 292, 89 S.Ct. 534, 21 L.Ed.2d 487 (1959); Rewis v. United States, 401 U.S. 808, 811, & n. 6, 91 1056, 28 L.Ed.2d 493 (1970). The Travel Act, in effect, implements such a program. Therefore, this is a suitable case for Mishkin’s principle. As Professor Mishkin observes, the clear implication of the Clearfield* doctrine is that any issue bearing a sub- stantial relationship to an established national govern- mental function should be determined by reference to fed- eral law. The constitutionality of the Gaming Control Act is a federal question. 5 Although this article deals with choice of law in the civil con- text, I think it deals with concepts so fundamental to our federal- ism that they transcend the civil-criminal distinction. * Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). 35a I become more firmly convinced of this conclusion when 1 view the issue as federal incorporation of state law by reference. That is, the Travel Act incorporates Nevada state law in the area of gambling. Considered thus, even more latitude inheres in the federal judiciary. For example, in F.R.C. v. Beaver County, 328 U.S. 204, 208-9, 66 S.Ct. 992, 90 L.Ed. 1172 (1946), a federal statute granted an ex- ception to the R.F.C.’s tax immunity. It allowed the state to tax “real property.” The question was whether a state or federal definition of “real property” would apply in decid- ing whether certain federally owned machinery was tax- able under a state law which taxed such fixtures as realty. The Court rejected the government’s assertion that a more universally accepted definition of realty must obtain, but noted that this was true only because the state definition did not impair the purposes of the Act nor work a discrimi- nation against the government. To saddle the federal government with the state’s inter- pretation would allow the states to eviscerate the Travel Act and frustrate a federal solution to a problem of na- tional scope. As Mishkin notes: The extent of incorporation and the techniques for ascertaining what local law is must be determined by the particular considerations which established the advisability of adopting that law. Mishkin, at 803. [em- phasis added] It would be self-defeating for the federal government to adopt state notions of illegality only to be bound by state courts which may have considered the law in circumstances which do not present the purposes and considerations sur- rounding the federal enactment. Such self-defeating intent should not be presumed and will not be found. The Supreme Court has given the Travel Act this kind of preferential treatment. In United States v. Nardello, supra, the District Court dismissed a § 1952 indictment on the grounds that the conduct alleged was not technically 36a extortion in Pennsylvania, the relevant state. The Supreme Court reversed. Because the Travel Act’s aim is to combat organized crime operating across state lines, the Act must be construed to equal the task. The Court declined to be bound by the state’s definition; it would have nullified the Act. Instead, the Court applied a broader definition of ille- gal extortion, emphasizing that the essential question is whether the type of activity under prosecution is generally or usually of a type subject to criminal sanctions. Nardello, supra, 393 U.S. at 293-6, 89 S.Ct. 534; see, United States v. Polizzi, 500 F.2d 856, 873 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); United States v. Prince, 515 F.2d 564 (5th Cir. 1975), cert. denied, sub nom., Craft, aka Woods, et al. v. United States, 423 U.S. 1032, 96 S.Ct. 563, 46 L.Ed.2d 406 (1975). The distinction between the view defendants proffer and the approach I adopt is the distinction between applying state law for reasons of state-federal comity and interpret- ing it to effectuate a far-ranging federal program. The next question is whether there are federal rights implicated when one applies for a Nevada gaming license, and whether without Rosenthal the statute abridges them. The defendants claim first that the right to enter a law- ful business is so fundamental its denial should comply with due process. Cafeteria Workers v. McElroy, supra, (dealt with plaintiff’s right to a due process hearing upon revocation of a security clearance necessary to work at a governmental installation) ;* Hampton v. Mow Sun Wong, supra, 426 U.S. at 102, 96 S.Ct. 1895. This interpretation of “liberty interests” is expounded by Justice Marshall, dissenting in Massachusetts v. Murgia, 427 U.S. 307, 322-3, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). 5 The Court held in the negative, finding the plaintiff was free to look elsewhere for employment and that merely foreclosing one small field of employment did not implicate liberty. 37a However, this view has not received the approval of a ma- jority of the Supreme Court which has limited the scope of Fourteenth Amendment protection in this regard to cases where the foreclosure of opportunities is considerably greater than here. As the Court stated in Board of Regents v. Roth, supra, 408 U.S. at 575, 92 S.Ct. at 2708: It stretches the concept of liberty too far to suggest that a person is deprived of ‘liberty’ when [one] simply is not rehired in one job but remains as free as before to seek another. The defendant Goldfarb is a man of substantial means and abilities. He kas numerous opportunities for a variety of occupations before him. The Nevada Gaming Commis- sion’s denial was hardly of the magnitude required to trig- ger the Fourteenth Amendment.’ *The defendant also cites a number of cases which deal with constitutional deprivations which occur when applicants are de- nied admission to professions. For example, in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) the Supreme Court held that the New Mexico Board of Bar Exami- ners had wrongfully denied Schware a license to practice law allegedly because of former communist party affiliations. The Court found a due process violation, not in the abstract nor because of any protected liberty or property interest, but because the criteria applied by the Board were not rationally related to the ends to be served by them and because the criteria impinged upon protected First Amendment rights. No mention of a liberty or property in- terest in practicing law was made. Therefore, whatever these cases say about entrance requirements and substantive due process, they do not address the question at hand. Moreover, I think that the “legitimate claim of entitlement’’ of one in the plaintiff Schware’s position is considerably stronger than Goldfarb’s, if indeed Gold- farb can be said to have any claim at all in this regard. I think that the other cases defendant cites in this vein may be similarly distin- guished. See Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 123, 46 S.Ct. 215, 70 L.Ed, 494 (1926); Shaw v. Hospital Authority, 507 F.2d 625 (5th Cir. 1975) ; Don v. Okmulgee Memorial Hospital, 443 F.2d 234 (10th Cir. 1971). 38a More troublesome is Hornsby v. Allen, 326 F.2d 605 (Sth Cir. 1964). There, an unsuccessful liquor license applicant claimed she met all the requirements for a license yet was denied arbitrarily, without a statement of reasons. Noting that merely calling a liquor license a privilege does not ex- empt the state from the Fourteenth Amendment in its deal- ings wvith license applicants, the court held that one who satisfies the requirements for a license is entitled to a due process hearing upon denial thereof. On its face, it seems that Hornsby is support for Goldfarb’s position although he has not, as yet, shown he meets the requirements for a gaming license (nor does it seem that he could, given the subjective and complex criteria applied by the Nevada state agencies). Id., at 610. However, in Atlanta v. Allen, 389 F.2d 713 (5th Cir. 1968), the Fifth Circuit reconsidered Hornsby and stated that where the state sets forth specific criteria upon which the decision to grant a license will be based, there arises a due process right to have the agencies act only upon those criteria. The court emphasized it does not sit as a super-Liquor Control Board. There has been no showing here that Nevada authorities did not act upon their published criteria, nor do I sit to review their decision. I have recently reviewed the Hornsby line in connection with a Michigan liquor license applicant’s suit charging that the City of Pontiac acted arbitrarily in denying a li- quor license. Shamie v. City of Pontiac, 443 F.Supp. 679, 684 (E.D.Mich.1977). I held there that the Hornsby case should not be followed, reasoning that liquor license appli- cants have no claim of entitlement under Roth. See Lewis v. City of Grand Rapids, 356 F.2d 276, 285-6 (6th Cir. 1966) ; Medina v. Rudman, 545 F.2d 244 (1st Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1976).’ ™I do not believe the Supreme Court’s mention of Hornsby in Goldberg v. Kelly, 397 U.S. 254, 296. n.9, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) as an example of a situation in which courts had 39a Moreover, Nevada has gone to great lengths to deny the kind of claim of entitlement to a gaming license that Roth requires of one claiming a protected property interest. Nev.Rev.Stat. § 463.140(2) provides, “The commission shall have full and absolute power and authority to deny any application or to limit, condition, restrict, revoke or suspend any license.” Regulation 4,010.1 provides: Any gaming license .. . shall be deemed to be a revo- cable privilege and no person holding such a license . is deemed to have acquired any vested rights therein." Without deciding the validity of such statutes and regu- lations, they are nonetheless excellent evidence of the status of a gaming license under Nevada law and practice. They make explicit no applicant should expect a license. Property rights—legitimate claims of entitlement—are within the state’s authority to create or deny. For example, in Bishop v. Wood, 426 U.S, 341, 345, 96 S.Ct. 2074, 2077, 48 L.Ed2d 684 (1975), the Supreme Court held that the existence of “an enforceable expectation of continued pub- lic employment,” a property right, was to be determined by whether under state law or custom such an interest existed, Nevada has explicitly disclaimed the interest claimed; its determination is conclusive, For these reasons, I find the abjured the ancient notion of property interests as rights in a tangible thing amounts to a tacit approval of that case, as Goldfarb contends. * Regulation 4,010.2 provides An applicant for a state gaming license is seeking the grant- ing of a privilege, and the burden of proving his qualification to receive any license is at al) times on the applicant, An ap- plicant must accept any risk of adverse public notice, embar- rassment, criticism, or other action or financial loss which may result from action with respect to an application and expressly waive any claim for damages as a result thereof. 40a Nevada statutes under attack are constitutional. The indict- ment will not be dismissed on this ground. However, I also find that even assuming the unconstitu- tionality of the Nevada statutes in question, the defendants’ claim must fail. The overriding federal nature of the Travel Act dictates that an offexise thereunder is primarily federal in nature. United Stetes v, Polizzi, supra, 500 F.2d at 869 (9th Cir. 1974) ; United States v. Prince, 529 F.2d 1108, 1111-2 (6th Cir. 1976), cert. denied, 429 U.S, 838, 97 S.Ct. 108, 50 L.Ed. 2d 105 (1976). The gravamen of the offense is the interstate nexus itself. Polizzi, supra, at 869. In § 1952 cases the state law serves merely a definitional purpose—there is no need to prove a violation of state law as an essential element of the federal crime. United States v. Prince, 515 F.2d 564, 566 (5th Cir. 1975); United States v, Nardello, supra; United States v. Conway, 507 F.2d 1047, 1051 (5th Cir. 1975) ; but see United States v. Brown, 505 F [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2159%3A1. Public record. Not legal advice.