(dissenting).
These are cases where hard facts are likely to make bad law. Defendants appeal, after having been tried for conspiring 1 to violate the Travel Act, 18 U.S.C. § 1952 (Supp. V 1969). A number of appellants were also indicted on counts alleging specific violations of the Travel Act. They were all found guilty by juries in the United States District Court for the Eastern District of Kentucky and each appellant has been sentenced to a year and a day in the federal penitentiary. Defendant George Girelach’s sen*495tence was suspended in favor of probation.
What defendants-appellants actually did was not in dispute in the trial court, nor is it in dispute before us. They admittedly participated in running bingo games in Kentucky. And they admitted that there was daily travel across state lines and the bringing or sending of materials across state lines for the operation of the bingo games. There is no question but that appellants intended to do exactly what they did.
Further, at this point appellants do not appear even to contend that the running of the bingo games at the times and places referred to in these indictments was not a violation of the law of Kentucky. Ky.Rev.Stat. §§ 436.200; 436.360; 436.-370 (1962); Ky.Const. § 226 (1962). Nor do they contend that these state provisions require scienter as a matter of state law.
The facts and legal conclusions outlined above seemed to the District Judge to make out a complete case for jury consideration on the government’s charge of violation of the specific terms of the Travel Act:
18 U.S.C. § 1952. “Interstate and foreign travel or transportation in aid of racketeering enterprises.
“(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 therefore 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.”
Like my colleagues, I have no doubt that this statute does indeed require the government to prove that defendants’ acts were intentional. But for all practical purposes, defendants concede that they intended to run the bingo games. What is at issue here is whether the government also had to prove that defendants knew that bingo was unlawful in Kentucky. I read subparagraph (b) above as an express Congressional rejection of such a burden of proof.
Generally, of course, ignorance of the law is not an excuse. In a very recent case, the United States Supreme Court in dealing with a statute regulating shipment by truck of explosive cargoes has recorded this principle as follows:
“The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of these 1960 amendments we decline to attribute to Congress the inaccurate view that that Act requires proof of knowledge of the law, as well as the facts, and intended to endorse that interpretation by retaining the word ‘knowingly.’ We conclude that the meager legislative history of the 1960 amendments makes unwarranted the conclusion that Congress abandoned the general rule and required knowledge of both the facts and the pertinent law before a criminal conviction *496could be sustained under this Act.” United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971).
This was the common law rule and at times it has proved to be a harsh rule, which under some circumstances the courts have acted to alleviate. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
The majority opinion, however, seems to me to have the effect of amending the Travel Act by adding to 18 U.S.C. § 1952(b) the words “which the person charged knew to be in violation of the laws of the state.” I cannot agree that such an amendment is appropriate or desirable because to me it seems to overrule an opposite intention on the part of Congress and to place upon the prosecution the impossible burden of proving the state of mind of the defendant in every Travel Act case.
Nor does it seem to me that such authority as there is on this topic lends support to the majority opinion, United States v. Hawthorne, 356 F.2d 740 (4th Cir.), cert. denied, 384 U.S. 908, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966); United States v. Wechsler, 392 F.2d 344 (4th Cir.), cert. denied, 392 U.S. 932, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968). See also United States v. McMenama, 403 F.2d 969 (6th Cir.), cert. denied, 394 U.S. 974, 89 S.Ct. 1465, 22 L.Ed.2d 753 (1968); United States v. Decker, 292 F.2d 89 (6th Cir.), cert. denied, 368 U.S. 834, 82 S.Ct. 58, 7 L.Ed.2d 36 (1961).
In the Hawthorne ease the Fourth Circuit said:
“We think the defendant was properly convicted under the second count. We do not think the statute (18 U.S.C.A. § 1952) requires proof that the defendant knew that he was violating the Indiana law by operating slot machines in the state, although there was evidence from which the jury could have so found. Such knowledge was not required to convict under the Indiana statute. Worl v. State, 243 Ind. 116, 183 N.E.2d 594 (1962), and we think it sufficient under section 1952 that the defendant knowingly caused to be transmitted interstate by the Western Union money order proceeds of a gam-bling enterprise which was unlawful under the Indiana statute.” United States v. Hawthorne, supra, 356 F.2d at 742.
I do not read the cases relied on by the majority opinion as authority for requiring that the prosecution prove that appellants in these cases knew the Kentucky law. The issue dealt with in United States v. Miller, 379 F.2d 483 (7th Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d 281 (1967), and in United States v. Hanon, 428 F.2d 101 (8th Cir. 1970), was the claim that the government had to prove that the appellants in those cases knew that they were employing interstate facilities in violation of the Travel Act. Both the Seventh and Eighth Circuits rejected the requirement of scienter as to the federal law aspect. In neither case was any issue presented as to scienter concerning state law. United States v. Bash, 258 F.Supp. 807 (N.D.Ind.1966), was the District Court case which the Miller case affirmed. The language dealing with knowledge of state law in Bash is clearly dictum, as is the quotation from the trial court charge in Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1964).
The majority opinion also makes reference to United States v. Gebhart, 441 F.2d 1261 (6th Cir. 1971). In this opinion another panel of this court affirmed convictions on a factual background very close to that with which we deal, except that the proofs of reliance upon advice that bingo was lawful in Kentucky at the time were less direct than in the cases before us. Gebhart is in my view no precedent for writing scienter into the Travel Act in relation to violation of state law.
*497Actually, appellants before us offer two arguments. The first in exculpation, and the second in mitigation of their acts. As exculpation, they point to the fact that before they started operating the bingo games concerned, they sought the advice of appropriate local law enforcement officials, including the sheriff and the former sheriff of the county concerned, and were advised that if they operated as they contend they did operate, that the games would not be in violation of Kentucky law. Secondly, in mitigation of their offense, appellants call attention to the fact that since these convictions, the state of Kentucky has amended its antigambling laws so as to allow for the operation of the bingo games which appellants ran at a time when they were in fact illegal. Ky.Rev. Stat. § 238.010 et seq. (1970).
Pending before Congress now is a proposal by the National Commission on Reform of Federal Criminal Laws, which under some circumstances would make mistake of law an affirmative defense:
Ҥ 609. Mistake of Law.
Except as otherwise expressly provided, a person’s good faith belief that conduct does not constitute a crime is an affirmative defense if he acted in reasonable reliance upon a statement of the law contained in:
(a) a statute or other enactment;
(b) a judicial decision, opinion, order or judgment;
(c) an administrative order or grant of permission; or
(d) an official interpretation of the public servant or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the crime.”
Report of the National Commission on Reform of Federal Criminal Laws, § 609
But this proposal would place the burden of proof of “good faith” and “reasonable reliance” upon advice upon the defendant and not upon the prosecution, which has little access to the defendant’s subjective state of mind.
If there were a majority of our court inclined toward serious consideration of such an affirmative defense as § 609 above, I would think rehearing of this case and full reargument, including this issue, would be in order.
In the meantime, it seems to me that the District Judge followed the law as Congress wrote it and as the courts to date have interpreted it. Before sending the jury out to deliberate in the Wiethorn case, he charged:
“Three essential elements are required to be proved in order to establish the offense charged in each of the first six counts of the Indictment:
“First: The carrying on of a business enterprise involving gambling, by the running of a lottery, in violation of the Kentucky Constitution and Statutes I have read to you;
“Second: Using and causing others to use facilities in interstate commerce with the intent to carry on such a lottery ; and
“Third: Doing such act or acts unlawfully, wilfully and knowingly.”
And in the Stagman case the District Judge charged in part as follows:
“The indictment charges that this act was done, or these acts were done by these defendants knowingly, unlawfully, and intentionally, and you are instructed that an act is done knowingly if done voluntarily and intentionally and not because of mistake or accident or other innocent reason. Unlawful means contrary to law. So to do an act unlawfully means to do wil-fully something which is contrary to *498the law. An act is done wilfully if done voluntarily and intentionally and with the specific intent to do something the law forbids. That is to say with bad purpose, either to disobey or to disregard the law. An act is done wilfully if done voluntarily and intentionally, and with the specific intent to do something the law forbids. That is to say, with a bad purpose either to disobey or disregard the law. I will repeat that since it is essentially important in this case.”
In the absence of a majority in favor of adopting § 609 of the Report of the National Commission on Reform of Federal Criminal Laws, as set forth above, I would affirm the judgment of the District Court, since I find no reversible error under present law in the Judge’s charges taken as a whole.
There is, however, still something to be said about this case. The government of the United States in this case clearly employed an elephant gun to shoot a mouse. The Travel Act was, as its legislative history shows, designed to attack interstate organized crime. There is absolutely nothing in the records of the cases before us to show that the bingo games operated by these appellants in anywise fitted that category of activity. Indeed, in a House Report to the companion act of § 1952 (18 U.S.C. § 1953), the House Committee specifically stated that § 1953 prohibitions did not apply to “the game known as bingo.”
I agree with the majority that we cannot exempt appellants who appear at least technically to be in violation of the terms of § 1952 of the Travel Act from its sanctions. But surely this is a situation where a technical violation of a federal statute not serving its basic stated purposes should call for application of a penalty proportioned to the offense.
If, as I believe should be the case, the court were to affirm these convictions, consideration could be given to this view in the course of an application for reduction of sentence under Rule 35.
. 18 U.S.C. § 371 (1964).