LOCATION: El Paso Natural Gas Co. Headquarters
DOCKET NO.: 47
DECIDED BY: Warren Court (1965-1967)
CITATION: 385 US 263 (1966)
ARGUED: Nov 07, 1966
DECIDED: Dec 12, 1966
Facts of the case
Media for United States v. Fabrizio
Audio Transcription for Oral Argument - November 07, 1966 in United States v. Fabrizio
Number 47, United States appellant versus Anthony L. Fabrizio.
Mr. Solicitor General.
Mr. Chief Justice may it please the Court.
I move admission of Mr. Jerome Chapman of the District of Columbia Bar specially to argue this case.
He may be admitted for that purpose.
Jerome I. Chapman:
Mr. Chief Justice, may it please the Court.
This is a direct appeal from the dismissal of an indictment by the District Court.
That court decision was bases upon its interpretation of the statute upon which the indictment was founded that is 18 U.S. Code Section 1953 and the only question before this Court on direct appeal is the interpretation of that statute.
So far as it is relevant here, Section 1953 prohibits anyone except the common carrier in the usual course of this business form knowingly transporting in interstate commerce "any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing or other device used or to be used or adapted device or design for used in wagering pools with respect to a sporting event."
The indictment which the lower court dismissed closely parallel to statutory language, it alleges that on or about August 24 1964, Anthony L. Fabrizio, the appellee, knowingly carried in interstate commerce from Keene, New Hampshire to Elmira, New York "records, papers writings, to wit: 75 acknowledgments of purchase for a sweepstakes race of the State of New Hampshire, to be used, and adapted, devised and designed for use, in a wagering pool with respect to a sporting event," that is: a sweepstakes race of the State of New Hampshire.
The indictment was filed in the Western District of New York in September 1964.
In October 1964, appellee filed a motion to dismiss the indictment accompanied by an affidavit of his former counsel setting forth appellee's interpretation of the statute of Section 1953.
The Government filed a memorandum in opposition to the motion to dismiss and the motion was submitted on the papers without oral argument.
On October 5, 1965 the District Court dismissed the indictment stating only the following reason "the charge in the indictment does not come within the purpose of Section 1953 as disclosed in the legislative history of the Act, the court did not further elaborate the position."
Under the limiting provisions of the Criminal Appeals Act under which this direct appeal is brought the sufficiency of the indictment as a pleading is not before this Court and neither is the question whether the Government can adduce sufficient proof to establish its factual allegations.
Stated concretely the only question involved here is the following, does an indictment alleging the knowing interstate carriage of acknowledgements of purchase to be used an adapted device and designed for use in the New Hampshire sweepstakes state a crime under Section 1953?
Is this a state lottery?
Jerome I. Chapman:
I'm printing that now Mr. Justice.
So I would like at the outset to briefly sketch the mechanics of the New Hampshire sweepstakes operation and to touch upon the function therein of the acknowledgement of purchase which is the paper that appellee carried in interstate commerce.
After doing this I'll turn to the legal questions involved in the case.
The New Hampshire sweepstakes is operated by the New Hampshire Commission established by law.
It is by undoubted -- undeniably a legal operation within the State of New Hampshire.
New Hampshire sweepstakes tickets maybe purchased at the sweepstakes commission headquarters at 51 state liquor stores, two race tracks and two highway toll plazas within the State of New Hampshire.
The tickets are in the first instance contained in a specially designed ticket dispensing machine which is very much like the airline insurance policy dispensing machine that is quite common.
The sweepstakes ticket itself, now I have a copy of the ticket here which you may not all be able to see but the facsimile of the acknowledgement of purchase appears on the page nine in the record in it's a -- as I will point out the differences and similarities it may be easier to refer to that rather than to -- what I have in my hand.
In the machine when one first approaches the machine through an opening at the top the sweepstakes ticket appears in such a manner that one can write the required information on the face of the ticket.
Now immediately beneath that ticket in the machine is the acknowledgement of purchase which is essentially identical, I will point out in a moment the differences.
This is not visible to the purchaser, it's inside the machine underneath the ticket and it's put there so that one writing on the ticket will make a carbon copy and pressure it on the same lines on the acknowledgement.