United States v. Stewart

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60785
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BROADUS V. STEWART, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. J-90-CR-91-5-L
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November 24, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Broadus V. Stewart, Jr. appeals the district court’s denial
of his motion for a writ of error coram nobis seeking the
reversal of his conviction for operating, and conspiring to
operate, an illegal gambling business, in violation of 18 U.S.C.
§§ 1955 and 371. Stewart argues that his gambling operation did
not violate state law, as is required for liability under § 1955.
In United States v. Morgan, 346 U.S. 502, 512 (1954), the
Supreme Court emphasized that the writ of coram nobis could not
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-60785
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be used as a substitute for appeal and should only be employed to
correct errors of the most fundamental character. United States
v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998). The petitioner bears
the considerable burden of overcoming the presumption that
previous judicial proceedings were correct. Dyer, 136 F.3d at
422.
Title 18 U.S.C. § 1955 prohibits conducting, financing,
managing, supervising, directing, or owning all or part of an
“illegal gambling business.” See 18 U.S.C. § 1955(a). Under
Section 1955(b)(1), an illegal gambling business is defined as a
gambling business that: (1) violates state or local law; (2) is
conducted, financed, managed, supervised, directed, or owned by
five or more people; and (3) is in continuous operation for more
than 30 days or has a gross revenue of $2,000 in any single day.
The district court did not err in finding that Stewart
failed to prove that his gambling operation did not violate
Mississippi state law. Miss. Code Ann. § 97-33-1 prohibits
gambling except on certain vessels or where made legal under
Mississippi law. Stewart’s gambling business was not conducted
on a vessel, and Stewart has not asserted that his gambling
operation was licensed, as is required for legality under
Mississippi law. See Miss. Code Ann. § 75-76-3(1).
There is no merit to Stewart’s assertions that Mississippi
permits all forms of gambling for any purpose by any person,
organization, or entity and, thus, that the form of gambling
engaged in must be “criminal/prohibited,” and not merely
regulated, by Mississippi in order to satisfy § 1955's state law
No. 98-60785
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violation requirement. Stewart’s assertions are primarily based
on caselaw addressing the state regulation of gambling on Indian
lands, which is not relevant in the present case. See United
States v. Hagen, 951 F.2d 261, 264 (10th Cir. 1991) (holding that
distinction between regulatory and prohibitory gaming laws was
not germane to case involving no issues of jurisdiction over
Indian lands).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.