United States v. Joplin

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4115

JOHN BOOTH JOPLIN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4226

ROY H. FREEMAN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4274

BARBARA FREEMAN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4275

MICKEY D. PIPER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4276

RUTH WHEELER,
Defendant-Appellant.

Appeals from the United States District Court
for the District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-95-195)

Submitted: May 6, 1997

Decided: September 11, 1997

Before WIDENER, NIEMEYER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, John Stuart Bruce, Dep-
uty Federal Public Defender, Greensboro, North Carolina; David B.
Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellants. Walter C. Holton, Jr., United States Attorney, Douglas
Cannon, Assistant United States Attorney, Wendy Joyce, Third Year
Law Student, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

John Joplin, Barbara Freeman, Roy Freeman, Mickey Piper, and
Ruth Wheeler appeal their convictions for operating an illegal gam-
bling business, 18 U.S.C.A. § 1955 (West 1994 & Supp. 1997). Joplin
also appeals the sentence imposed pursuant to his conviction. Finding
no error, we affirm.

I

Electronic draw poker and slot machines were installed in several
bars, video arcades, and bingo parlors in the Winston-Salem area.
Joplin owned 4 Your Amusement, a company that supplied these
establishments with various devices, including the slot and draw
poker machines. The poker and slot machines were assembled at the
office of 4 Your Amusement with parts shipped to Winston-Salem
from a number of states, including California. Customers bought
credits which they used to play the machines. The machines deducted
or awarded credits, depending upon the fortunes of a given player.
Players who had accumulated a certain number of credits could
redeem them for cash.

Pursuant to search warrants, law enforcement officials seized over
300 gambling devices located at thirteen businesses. Joplin owned
one of the businesses. He had installed the devices at the other busi-
nesses, arranging with the owners and/or managers to share in the
gambling profits. Piper, Wheeler, and the Freemans each operated one
of the businesses housing Joplin's machines. Joplin's employees reg-
ularly collected money from the businesses. Officials testified that the
Joplin operation ran continuously for over thirty days and had gross
revenues of $2000 in any single day.

All five Defendants pleaded guilty to conducting a gambling busi-
ness that is illegal in the state where it is conducted, 18 U.S.C.A.
§ 1955; see N.C. Gen. Stat. §§ 14-292, 14-295, 14-296 (1993). Pursu-
ant to their convictions, Wheeler, Piper, and the Freemans were
placed on probation. Joplin received a twelve-month sentence.

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II

Appellants first challenge their convictions on the ground that Con-
gress exceeded its powers under the Commerce Clause when it
enacted § 1955. They urge that the Supreme Court's recent decision
in United States v. Lopez, 514 U.S. 549, 63 U.S.L.W. 4343 (1995),
bolsters their position. We disagree.

Congress passed § 1955 as part of the Organized Crime Control
Act of 1970, Pub. L. No. 91-452, 84 Stat. 922. In enacting the statute,
Congress made several specific findings concerning the manner in
which illegal gambling impacted interstate commerce. See United
States v. Sacco, 491 F.2d 995, 999 (9th Cir. 1974). Following passage
of § 1955, a number of courts rejected claims that the statute
exceeded congressional powers under the Commerce Clause. See,
e.g., United States v. Leon, 534 F.2d 667, 673-74 (6th Cir. 1976);
United States v. Sacco, 491 F.2d at 1001; Schneider v. United States,
459 F.2d 540, 542 (8th Cir. 1972).

In United States v. Lopez, the Supreme Court struck down 18
U.S.C. § 922(q) (1994) as an invalid exercise of the commerce power
because that statute "neither regulates a commercial activity nor con-
tains a requirement that the possession [of a firearm in a school zone]
be connected in any way to interstate commerce." United States v.
Lopez, 63 U.S.L.W. at 4343. The Court noted that not all federal laws
passed pursuant to the Commerce Clause and purporting to regulate
intrastate commercial activity are constitutional. However, "[w]here
economic activity substantially affects interstate commerce, legisla-
tion regulating that activity will be sustained." Id. at 4346.

The Sixth Circuit recently reexamined § 1955 in light of Lopez and
found, as it did in Leon, that the statute is a valid exercise of the com-
merce power. United States v. Wall, 92 F.3d 1444, 1450 (6th Cir.
1996), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3455 (U.S. Jan. 6,
1997) (No. 96-805). Unlike the statute at issue in Lopez, which "by
its terms has nothing to do with `commerce' or any sort of economic
enterprise," United States v. Lopez, 63 U.S.L.W. at 4346, § 1955 on
its face relates to gambling, a commercial activity. United States v.
Wall, 92 F.3d at 1449. Further, Congress found strong ties between
illegal gambling and interstate commerce. Id. at 1450; see United

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States v. Sacco, 491 F.2d at 999; see also United States v. Lopez, 63
U.S.L.W. at 4347 (congressional findings regarding the effect of an
activity on interstate commerce are relevant to a determination of
whether the statute exceeds the commerce power).

It is immaterial that the gambling activity in the subject case was
an intrastate enterprise. The Supreme Court has upheld most federal
statutes regulating intrastate economic activity. See, e.g., Hodel v.
Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276-83
(1981) (intrastate coal mining); Perez v. United States, 402 U.S. 146,
155-56 (1971) (intrastate extortionate credit transactions); Katzenbach
v. McClung, 379 U.S. 294, 299-300 (1964) (inns and hotels). In all
these cases, the broad economic activity regulated substantially
affected interstate commerce. Lopez, 63 U.S.L.W. at 4345-46. As
long as the general economic activity that a statute regulates has the
required nexus to interstate commerce, convictions under that statute
"do not require a showing . . . that the gambling activities of a particu-
lar defendant have affected commerce." Schneider v. United States,
459 F.2d at 541. Thus, in Wall, the court sustained a conviction under
§ 1955 even though the gambling was purely local, with no ties to
organized crime: "Congress . . . may regulate commercial activities
that, although intrastate in nature, comprise a class of activities that
substantially affect interstate commerce. Courts may not excise indi-
vidual instances of a class of commercial activities that is within the
reach of federal power." United States v. Wall, 92 F.3d at 1450-51
n.14.

We agree with the cited authorities and hold that§ 1955 constitutes
a valid exercise of the commerce power. The statute regulates a com-
mercial activity, illegal gambling, which Congress has determined to
have significant ties to interstate commerce. Whether, in a given case,
the particular illegal gambling activity is purely intrastate in nature is
immaterial to the question of the statute's validity under the Com-
merce Clause.

III

Appellants next contend that § 1955 violates the Equal Protection
Clause because it makes illegal an activity which might be legal else-

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where in the United States. Courts of appeals have routinely rejected
such an argument. The Eighth Circuit observed:

The Supreme Court has stated that there is no requirement
of national uniformity when Congress exercises its power
under the commerce clause. . . . The Supreme Court has also
approved, in a variety of contexts, the incorporation of state
laws into federal statutes.

Schneider v. United States, 459 F.2d at 542-43 (citations omitted).
Other circuits to have addressed the matter unanimously agree that
§ 1955 does not violate the Equal Protection Clause. See United
States v. Hawes, 529 F.2d 472, 477-78 (5th Cir. 1976); United States
v. Smaldone, 485 F.2d 1333, 1342 (10th Cir. 1973). We are in accord
with these decisions.

IV

The district court increased Joplin's offense level by four levels
because the court found that he was an organizer or leader of a crimi-
nal activity involving five or more participants. USSG § 3B1.1.* Jop-
lin contests this increase. We review the district court's finding for
clear error. See United States v. Daughtrey , 874 F.2d 213, 217 (4th
Cir. 1989).

Joplin owned the machines that were confiscated. He approached
the owners and operators of various establishments to see if they were
interested in having the machines installed at their businesses and
then sharing the profits. His employees routinely collected Joplin's
share of the gambling profits from the businesses. For these reasons,
there was no clear error.

V

We accordingly affirm the convictions as well as Joplin's sentence.
We dispense with oral argument because the facts and legal conten-
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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