Petitioners conducted a lottery operation in Florida, near the
Georgia border. They were convicted along with two Georgia
residents who placed bets at petitioners' establishment, of
violating 18 U.S.C. § 1952, the Travel Act, which prohibits
interstate travel with the intent to "promote, manage, establish,
carry on, or facilitate" certain illegal activity. The District
Court instructed the jury that, if the Georgia bettors traveled to
Florida for the purpose of gambling, they violated the Act, and
that a defendant could be found guilty under the aiding and
abetting statute, 18 U.S.C. § 2, without proof that he had
personally performed every act constituting the charged offense.
The Court of Appeals reversed the convictions of the Georgia
bettors, holding that § 1952 did not make it a federal crime merely
to cross a state line to place a bet, but upheld petitioners'
convictions on the ground that gambling establishment operators are
responsible for the interstate travel of their customers.
Held: Conducting a gambling operation frequented by
out-of-state bettors does not, without more, constitute a violation
of the Travel Act. Pp.
401 U. S.
811-814.
418 F.2d 1218, reversed.
MARSHALL, J., delivered the opinion of the Court, in which all
members joined except WHITE, J., who took no part in the decision
of the case.
Page 401 U. S. 809
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In this case, petitioners challenge their convictions under the
Travel Act, 18 U.S.C. § 1952, which prohibits interstate travel in
furtherance of certain criminal activity. [
Footnote 1] Although the United States Court of Appeals
for the Fifth Circuit narrowed an expansive interpretation of the
Act, the Court of Appeals affirmed petitioners' convictions. For
the reasons stated below, we reverse.
Petitioners, James Rewis and Mary Lee Williams, were convicted
along with two other defendants in the United States District Court
for the Middle District of Florida. [
Footnote 2]
Page 401 U. S. 810
Their convictions arose from a lottery, or numbers operation,
which petitioners admittedly ran in Yulee, Florida, a small
community located a few miles south of the Georgia-Florida state
line. Petitioners are Florida residents, and there is no evidence
that they at any time crossed state lines in connection with the
operation of their lottery. The other two convicted defendants are
Georgia residents who traveled from their Georgia homes to place
bets at petitioners' establishment in Yulee.
The District Court instructed the jury that mere bettors in a
lottery violated Florida law, and that, if the bettors traveled
interstate for the purpose of gambling, they also violated the
Travel Act. Presumably referring to petitioners, the District Court
further charged that a defendant could be found guilty under the
aiding and abetting statute, 18 U.S.C. § 2, [
Footnote 3] without proof that he personally
performed every act constituting the charged offense. On appeal,
the Fifth Circuit held that § 1952 did not make it a federal crime
merely to cross a state line for the purpose of placing a bet, and
reversed the convictions of the two Georgia residents because the
evidence presented at trial was insufficient to show that they were
anything other than customers of the gambling operation. [
Footnote 4] However, the Court of
Appeals upheld petitioners'
Page 401 U. S. 811
convictions on the ground that operators of gambling
establishments are responsible for the interstate travel of their
customers. 418 F.2d 1218, 1222.
We agree with the Court of Appeals that it cannot be said, with
certainty sufficient to justify a criminal conviction, that
Congress intended that interstate travel by mere customers of a
gambling establishment should violate the Travel Act. [
Footnote 5] But we are unable to
conclude that conducting a gambling operation frequented by
out-of-state bettors, by itself, violates the Act. Section 1952
prohibits interstate travel with the intent to "promote, manage,
establish, carry on, or facilitate" certain kinds of illegal
activity, and the ordinary meaning of this language suggests that
the traveler's purpose must involve more than the desire to
patronize the illegal activity. Legislative history of the Act is
limited, but does reveal that § 1952 was aimed primarily at
organized crime and, more specifically, at persons who reside in
one State while operating or managing illegal activities located in
another. [
Footnote 6] In
addition, we are struck by what Congress
Page 401 U. S. 812
did not say. Given the ease with which citizens of our Nation
are able to travel and the existence of many multistate
metropolitan areas, substantial amounts of criminal activity,
traditionally subject to state regulation, are patronized by
out-of-state customers. In such a context, Congress would certainly
recognize that an expansive Travel Act would alter sensitive
federal state relationships, could overextend limited federal
police resources, and might well produce situations in which the
geographic origin of customers, a matter of happenstance, would
transform relatively minor state offenses into federal felonies. It
is not for us to weigh the merits of these factors, but the fact
that they are not even discussed in the legislative history of §
1952 strongly suggests that Congress did not intend that the Travel
Act should apply to criminal activity solely because that activity
is at times patronized by persons from another State. In short,
neither statutory language nor legislative history supports such a
broad-ranging interpretation of § 1952. And even if this lack of
support were less apparent, ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity,
Bell
v. United States, 349 U. S. 81,
349 U. S. 83
(1955).
The Government concedes as much, but offers an alternative
construction of the Travel Act -- that the Act is violated whenever
the operator of an illegal establishment
Page 401 U. S. 813
can reasonably foresee that customers will cross state lines for
the purpose of patronizing the illegal operation or whenever the
operator actively seeks to attract business from another State. The
first half of this proposed interpretation -- reasonable
foreseeability of interstate patronage -- does not merit
acceptance. Whenever individuals actually cross state lines for the
purpose of patronizing a criminal establishment, it will almost
always be reasonable to say that the operators of the establishment
could have foreseen that some of their customers would come from
out of State. So, for practical purposes, this alternative
construction is almost as expansive as interpretations that we have
already rejected. In addition, there is little, if any, evidence
that Congress intended that foreseeability should govern criminal
liability under § 1952.
There may, however, be greater support for the second half of
the Government's proposed interpretation -- that active
encouragement of interstate patronage violates the Act. Of course,
the conduct deemed to constitute active encouragement must be more
than merely conducting the illegal operation; otherwise, this
interpretation would only restate other constructions which we have
rejected. Still, there are cases in which federal courts have
correctly applied § 1952 to those individuals whose agents or
employees cross state lines in furtherance of illegal activity,
see, e.g., United States v. Chambers, 382 F.2d 910,
913-914 (CA6 1967);
United States v. Barrow, 363 F.2d 62,
665 (CA3 1966),
cert. denied, 385 U.S. 1001 (1967);
United States v. Zizzo, 338 F.2d 577, 580 (CA7 1964),
cert. denied, 381 U.S. 915 (1965), and the Government
argues that the principles of those decisions should be extended to
cover persons who actively seek interstate patronage. Although we
are cited to no cases that have gone so far, and although much of
what we have said casts substantial doubt on the Government's
Page 401 U. S. 814
broad argument, there may be occasional situations in which the
conduct encouraging interstate patronage so closely approximates
the conduct of a principal in a criminal agency relationship that
the Travel Act is violated. But we need not rule on this part of
the Government's theory, because it is not the interpretation of §
1952 under which petitioners were convicted. The jury was not
charged that it must find that petitioners actively sought
interstate patronage. And we are not informed of any action by
petitioners, other than actually conducting their lottery, that was
designed to attract out-of-state customers. As a result, the
Government's proposed interpretation of the Travel Act cannot be
employed to uphold these convictions.
Reversed.
MR. JUSTICE WHITE took no part in the decision of this case.
[
Footnote 1]
Title 18 U.S.C. § 1952 (1964 ed. and Supp. V) provides:
"(a) Whoever travels in interstate or foreign commerce or uses
any facility in interstate or foreign commerce, including the mail,
with intent to --"
"(1) distribute the proceeds of any unlawful activity; or"
"(2) commit any crime of violence to further any unlawful
activity; or"
"(3) otherwise promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or carrying
on, of any unlawful activity,"
"and thereafter performs or attempts to perform any of the acts
specified in subparagraphs (1), (2), and (3), shall be fined not
more than $10,000 or imprisoned for not more than five years, or
both."
"(b) As used in this section, 'unlawful activity' means (1) any
business enterprise involving gambling, liquor on which the Federal
excise tax has not been paid, narcotics, or prostitution offenses
in violation of the laws of the State in which they are committed
or of the United States, or (2) extortion, bribery, or arson in
violation of the laws of the State in which committed or of the
United States."
[
Footnote 2]
Petitioners were convicted of eight substantive violations under
§ 1952 and of conspiracy to violate the section. Petitioner Rewis
was sentenced to five years' imprisonment on each count, to run
concurrently. Petitioner Williams was sentenced to three years'
imprisonment on each count, to run concurrently, subject to parole
under 18 U.S.C. § 4208(a)(2). Petitioner Rewis was also convicted
of two counts of having failed to purchase a wagering tax stamp.
These latter two convictions were reversed by the Court of Appeals
under the intervening decisions of this Court in
Marchetti v.
United States, 390 U. S. 39
(1968), and
Grosso v. United States, 390 U. S.
62 (1968).
[
Footnote 3]
18 U.S.C. § 2 provides:
"(a) Whoever commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal."
"(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense against
the United States, is punishable as a principal."
[
Footnote 4]
418 F.2d 1218. The Government has not sought review of that part
of the Court of Appeals decision reversing the conviction of the
two Georgia residents.
[
Footnote 5]
Both parties correctly concede that the questions in this case
are solely statutory. No issue of constitutional dimension is
presented.
[
Footnote 6]
Incorporated in the Senate report (S.Rep. No. 644, 87th Cong.,
1st Sess., 2-3, dated July 27, 1961) the following appears:
"The bill, S. 1653, was introduced by the chairman of the
committee, Senator James O. Eastland, on April 18, 1961, on the
recommendation of the Attorney General, Robert F. Kennedy, as a
part of the Attorney General's legislative program to combat
organized crime and racketeering."
"The Attorney General testified before the committee in support
of the bill, S. 1653, on June 6, 1961, and commented: "
" We are seeking to take effective action against the racketeer
who conducts an unlawful business but lives far from the scene in
comfort and safety, as well as against other hoodlums."
" Let me say from the outset that we do not seek or intend to
impede the travel of anyone except persons engaged in illegal
businesses as spelled out in the bill. . . ."
" The target clearly is organized crime. The travel that would
be banned is travel 'in furtherance of a business enterprise' which
involves gambling, liquor, narcotics, and prostitution offenses or
extortion or bribery. Obviously, we are not trying to curtail the
sporadic, casual involvement in these offenses, but rather a
continuous course of conduct sufficient for it to be termed a
business enterprise."
"
* * * *"
" Our investigations also have made it quite clear that only the
Federal Government can shut off the funds which permit the top men
of organized crime to live far from the scene and, therefore,
remain immune from the local officials."