United States of America, Plaintiff-appellee, v. James v. Mcdonough, Defendant-appellant, 835 F.2d 1103 (5th Cir. 1988)

A federal statute makes criminal the transmission of wagers in interstate commerce.¹  This court held in Martin v. United States²  that such transmission is proscribed whether or not wagering is forbidden by the law of the state where the bet is received. That decision determines the law of the circuit, so we affirm a conviction for receiving bets on baseball and football games by telephone from Texas to Massachusetts despite the lack of evidence or any charge that placing such bets in Massachusetts was a state criminal offense.

James V. McDonough, who received the thirteen bets charged, asserts correctly that Congress has left, and by virtue of our federal system must leave, to the states the enforcement of laws against gambling within the states. He also asserts, again correctly, that many federal anti-gambling laws, enacted in reliance on the powers given Congress by the Commerce Clause,³ forbid only gambling in violation of state law.⁴  These postulates, however, do not support the conclusion that 18 U.S.C. § 1084(a), which contains no such provision, should be read as if it did.

McDonough contends that a federal anti-gambling law punishing conduct that is not unlawful under state law yields "an unworkable result." As we observed in Martin, however, section 1084,

was part of an omnibus crime bill that recognized the need for independent federal action to combat interstate gambling operations. Other sections prohibited interstate transportation of gambling paraphernalia, 18 U.S.C. § 1953, interstate transportation of gambling machines, 15 U.S.C. § 1171, and interstate travel in aid of racketeering, 18 U.S.C. § 1952. Moreover, this series of legislation does not stand alone, but appears as part of an independent federal policy aimed at those who would, in furtherance of any gambling activity, employ any means within direct federal control.⁵ 

McDonough contends that this statement is incorrect because the Congressional purpose reflected by other provisions of the omnibus crime bill was to punish only conduct that in some way violated state law. Even were the argument correct, we would be bound by Martin as the law of the circuit.

Were we free, however, to reconsider the question we would reach the same result, for it is commanded by the plain words of the statute and by its purpose as announced in the legislative history. The statute is clear and explicit.⁶  The legislative history sets forth a dual purpose--to assist the various states in enforcing their gambling laws "and to aid in the suppression of organized gambling activities ..." (emphasis added).⁷  In the discussion of Subsection (b) of the statute, which permits the transmission of information assisting in the placing of bets from a state where betting on a particular event is legal to another state where such betting is legal, the House of Representatives Report specifically states:

Nothing in the exemption, however, will permit the transmission of bets and wagers ... from or to any State whether betting is legal in that State or not. (Emphasis added.)⁸ 

For these reasons, the judgment is AFFIRMED.