United States v. Stewart

_______________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-60769
UNITED STATES OF AMERICA Plaintiff-Appellee,
versus
BROADUS VANLANDINGHAM STEWART, JR.
a/k/a Sealed Defendant 2 Defendant-Appellant.
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No. 98-60787
UNITED STATES OF AMERICA Plaintiff-Appellee,
versus
JOSEPH D. MCCANDLESS,
a/k/a Sealed Defendant 8 Defendant-Appellant.
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No. 98-60796
UNITED STATES OF AMERICA Plaintiff-Appellee,
versus
CHRISTOPHER CRAWFORD Defendant-Appellant.
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No. 99-60028
UNITED STATES OF AMERICA Plaintiff-Appellee,
versus
GEORGE W. BRADFORD Defendant-Appellant.
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No. 99-60221
UNITED STATES OF AMERICA Plaintiff-Appellee,
versus
BROADUS VANLANDINGHAM STEWART, SR.
1
a/k/a Sealed Defendant 1 Defendant-Appellant.
_________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
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March 3, 2000
Before JONES, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:
In this consolidated case, Defendants-Appellants Broadus
Vanlandingham Stewart, Jr., Broadus Vandlandingham Stewart, Sr.,
Joseph D. McCandless, Christopher Crawford, and George W. Bradford
(“Appellants”) challenge their convictions under 18 U.S.C. § 1955
for operating an illegal gambling business (in particular, an
unlicensed sports betting, or bookmaking, operation) in violation
of Mississippi Code § 97-33-1.1 Following indictment, Appellants
entered conditional guilty pleas, preserving the right to appeal
the legal question whether the indictment properly charged a
violation of § 1955. We review the sufficiency of an indictment de
novo.2
Section 1955 defines an “illegal gambling business” as a
gambling business which “is a violation of the law of a State or
1
Appellant Broadus V. Stewart, Jr. previously appealed the
district court’s denial of his motion for a writ of error coram
nobis seeking reversal of the same conviction. A different panel
of this court rejected the arguments that Stewart and the other
Appellants re-assert in this appeal and affirmed the district
court’s denial of the writ in an unpublished opinion. United
States v. Stewart, No. 98-60785 (5th Cir. Nov. 24, 1999) (per
curiam).
2
United States v. Dabrera-Teran, 168 F.3d 141, 143 (5th Cir.
1999).
2
political subdivision in which it is conducted.” Appellants
contend the state statute to which they pleaded guilty was
regulatory rather than criminal in nature and, as such, cannot
support an indictment under § 1955.
Although we are not entirely convinced § 1955 has been
consistently interpreted to contain the unwritten qualifier of
“violation of [a criminal] law of the State,”3 as Appellants
suggest, we assume arguendo that it does, and proceed to assess
whether the Mississippi statute in question is sufficiently
criminal in nature to support a federal charge under § 1955.
Appellants contend that they did not violate a criminal law
because sports bookmaking is legal in Mississippi. Prior to the
enactment of the Mississippi Gaming Control Act in 1990, all gaming
was criminally prohibited in Mississippi. After 1990, gambling was
made generally legal, subject to state licensing and regulation;
therefore, Appellants contend, their bookmaking activities violated
regulatory, but not criminal, state laws.
Section § 75-76-55(1)(a) of the Gaming Control Act specifies
that bookmaking is legal only if a license is obtained: “It is
unlawful for any person...without having first procured and
3
See, e.g., United States v. Gordon, 464 F.2d 357, 358 (9th
Cir. 1972) (finding § 1955 “the law of a state” language ambiguous
regarding whether violation of state criminal law or any law, civil
or criminal, was required and resolving ambiguity in favor of
criminal defendant). Compare United States v. Rowe, 599 F.2d 1319,
1320 (4th Cir. 1979) (holding that penalty for refusing a
breathalyzer test is civil under Virginia law and thus cannot be
enforced under the Assimilative Crimes Act) with United States v.
Manning, 700 F. Supp. 1001, 1003 (W.D. Wis. 1988) (holding drunk
driving is assimilated even though statute explicitly provides that
first offense is civil).
3
thereafter maintaining in effect a state gaming license...[t]o
deal, operate, carry on, conduct, maintain or expose for play in
the state of Mississippi any gambling device, slot machine, race
book, or sports pool.” It is undisputed that Appellants in this
case did not have a license for their bookmaking operation.
Appellants were indicted for violation of § 97-33-1, which
provides generally that “upon conviction” for various forms of
betting, gaming, or wagering, a person “shall be fined in a sum not
more than Five Hundred Dollars ($500.00); and unless such fine and
costs be immediately paid, shall be imprisoned for any period not
more than ninety (90) days.” Following the general prohibition,
the section provides exceptions for gambling (1) on a vessel on the
Mississippi River or Gulf Coast if approved by registered voters in
the county where the port is located or (2) “[t]hat is legal under
the laws of the State of Mississippi.” Licensed bookmaking, as
noted above, is legal.
Appellants’ contention that § 97-33-1 is a regulatory or
remedial, rather than criminal or penal, statute is untenable on
the face of the statute itself. First, the provision appears in
the Mississippi criminal code.4 Second, it discusses conviction,
fines, imprisonment, and prohibitions, which terms by their plain
4
Cf. Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (holding
that question of whether code is civil or criminal is one of
statutory interpretation and noting that Kansas’s objective to
create a civil proceeding is evidenced by its placement of the
Sexually Violent Predator Act within the Kansas probate code,
instead of the criminal code).
4
meaning suggest criminal proceedings.5 Third, the provision
establishes a general prohibition against gambling but carves out
exceptions for some gambling activities specifically permitted by
law. The regulatory, as opposed to criminal, aspects of
Mississippi gambling laws relate to only those exceptions that
constitute specifically authorized gambling activities.6
In further support of their argument that violation of a state
gambling law is not “criminal” and thus cannot trigger § 1995,
Appellants rely on § 97-33-29 of the Mississippi criminal code,
which provides: “All laws made or to be made for the suppression of
gambling or gaming, are remedial and not penal statutes, and shall
be so construed by the courts.” This particular provision has not
been interpreted in modern case law in this context,7 but the
Mississippi Supreme Court in 1903, in Fuller v. State8 held --
consistent with even earlier opinions9 -- that the provision was
5
For example, Black’s Law Dictionary defines “conviction” as
“the result of a criminal trial which ends in a judgment or
sentence that the accused is guilty as charged.” “Convict” is
defined as “[t]o find a person guilty of a criminal charge”; the
definition notes that the word formerly was used also in the sense
of finding against the defendant in a criminal case. BLACK’S LAW
DICTIONARY 333-34 (6th ed. 1990).
6
See Heacock v. United States, 40 F. Supp. 820, 822 (S.D.
Miss. 1999) (holding that unlicensed gambling “was clearly criminal
and illegal”).
7
But see Weinstein v. Sea View, Inc., 188 F.2d 116, 117-18
(5th Cir. 1951) (citing “remedial not penal” provision to support
holding that six-year, rather than one-year, statute of limitations
applied to claim by minor children for father’s gambling losses).
8
35 So. 214 (Miss. 1903).
9
Cain v. State, 21 Miss. 456 (Miss. Err. & App. 1850) (“The
statute on which the indictment is founded is declared to be
5
intended to clarify that criminal laws prohibiting gambling were to
be construed liberally, as an exception to the normal rule of
lenity, requiring strict construction of criminal statutes in favor
of the accused. In Fuller, the court held that the predecessor to
§ 97-33-1 authorized imprisonment in addition -- not just as an
alternative -- to a fine and stated: “We are fortified in this
position by that provision of our criminal law which says that all
laws in reference to gaming are remedial, and are to be construed
liberally -- not liberally in favor of the culprit, but for the
suppression of vice.”10
We decline Appellants’ invitation to (1) equate “remedial”
with regulatory and “penal” with criminal and (2) rely on § 97-33-1
to overturn their indictments under § 1955. The Mississippi
Supreme Court, in construing “that provision of our criminal law”
(emphasis added) clarified that the word “remedial” called for
gaming laws to be construed liberally against the criminal; it has
never held that the provision removed all prohibitory gambling laws
from the criminal code.
Appellants further contend that a statement by the Mississippi
Supreme Court from 1903 should not be controlling in this case
because the public policy against gambling has changed since that
time; rather than considering it a “vice,” Mississippi now
remedial and not a penal statute. The object of this provision
must have been to get rid of the general rule which requires that
penal statues should be construed strictly.”); Seal v. State, 21
Miss. 286 (Miss. Err. & App. 1850); Johnston v. State, 15 Miss. 58
(Miss. Err. & App. 1846).
10
Fuller, 35 So. at 215.
6
generally allows gambling if licensed. We disagree. Unlicensed,
unregulated gambling is still against the state’s public policy.11
Moreover, we are Erie-bound to apply the controlling state law,
regardless of its vintage. We are not at all convinced that, even
after the passage of the Gaming Control Act, § 97-33-1 defeats the
proposition that unlicensed gambling violates Mississippi criminal
law and thus constitutes a valid basis for indictment under § 1995.
We also reject Appellants’ reliance on a line of cases
interpreting a federal statute that allows specified states to
regulate Indian tribes. To narrow the reach of that statute, which
undercut the traditional immunity of Indian reservations from
application of state law, the Supreme Court held that the states in
question may impose criminal but not regulatory authority over
sovereign Indian tribes.12 Like the Sixth and Tenth Circuits, “we
think it inappropriate to apply here the criminal/prohibitory-
civil/regulatory test which was developed in a different context to
address different concerns.”13 We decline to adopt that test to
interpret § 1995's “violation of the law of a state” requirement.
Accordingly, we affirm the district court’s judgment of conviction
and the sentences imposed following Appellants’ guilty pleas for
violation of 18 U.S.C. § 1955.
11
See Heacock, 40 F. Supp. at 822 (“All other gambling in
Mississippi not specifically permitted by law is contrary to the
public policy of Mississippi and is criminal.”).
12
See Bryan v. Itasca Co., 426 U.S. 373, 388-89 (1976).
13
United States v. Dakota, 796 F.2d 186, 1888 (6th Cir. 1986);
see also United States v. Hagen, 951 F.2d 261, 264 (10th Cir.
1991).
7
AFFIRMED
8