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Travel Act

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Citation Edit

Racketeering Enterprises-Travel or Transportation Act (Travel Act), Pub. L. No. 87-228, 75 Stat. 498, 561-562 (1961), codified as 18 U.S.C. §1952.

Background Edit

The operation of an illegal gambling business using the Internet may easily involve violations of the Travel Act, as several writers have noted.[1] Like the Illegal Gambling Business Act, the Travel Act convictions result in imprisonment for not more than 5 years and/or fines of the greater of not more than twice the gain or loss associated with the offense or $250,000 ($500,000 for an organization).[2] The Act may serve as the foundation for a prosecution under the money laundering statutes,[3] and RICO.[4] It has neither the service termination features of the Wire Act nor the forfeiture features of Illegal Gambling Business Act.

Elements of a Claim Edit

The Travel Act's elements cover anyone who:

1. A. travels in interstate or foreign commerce, or
B. uses any facility in interstate or foreign commerce, or
C. uses the mail
2. with intent
A. to distribute the proceeds of
i. any business enterprise involving unlawful activities (including gambling) in violation of the laws in which it is conducted or of the laws of the United States; or
ii. any act which is indictable as money laundering; or
B. to otherwise
i. promote,
ii. manage,
iii. establish,
iv. carry on, or
v. facilitate the promotion, management, establishment, or carrying on, of any business enterprise involving unlawful activities (including gambling) in violation of the laws in which it is conducted or of the laws of the United States, or any act which is indictable as money laundering; and
3. thereafter so
A. distributes the proceeds from any business enterprise involving gambling or from any act indictable as money laundering, or
B. promotes, manages, establishes, carries on, or facilitates the promotion, management, establishment, or carrying on of any business enterprise involving unlawful activities (including unlawful gambling) or any act indictable as money laundering.

The courts often abbreviate their statement of the elements: “The government must prove (1) interstate travel or use of an interstate facility; (2) with the intent to . . . promote . . . an unlawful activity and (3) followed by performance or attempted performance of acts in furtherance of the unlawful activity.”[5] The Supreme Court determined some time ago that the Travel Act does not apply to the simple customers of an illegal gambling business,[6] although interstate solicitation of those customers may certainly be covered.[7]

When the Act’s jurisdictional element involves mail or facilities in interstate or foreign commerce, rather than interstate travel, evidence that a telephone was used,[8] or an ATM,[9] or the facilitates of an interstate banking chain[10] will suffice.[11] The government is not required to show that the defendant used the facilities himself or that the use was critical to the success of the criminal venture. It is enough that he caused them to be used[12] and that their employment was useful for his purposes.[13]

A criminal business enterprise, as understood in the Travel Act, “contemplates a continuous course of business — one that already exists at the time of the overt act or is intended thereafter. Evidence of an isolated criminal act, or even sporadic acts, will not suffice,”[14] and it must be shown to be involved in an unlawful activity outlawed by a specifically identified state or federal statute.[15] Finally, the government must establish some overt after in furtherance of the illicit business committed after the interstate travel or the use of the interstate facility.[16] Accomplice and co-conspirator liability law apply to the Travel Act.[17]

In the case of Internet gambling, the jurisdictional element of the Travel Act might be established at a minimum either by reference to the telecommunications component of the Internet, to shipments in interstate or foreign commerce (in or from the United States) associated with establishing operations on the Internet, to any interstate or foreign nexus to the payment of the debts resulting from the gambling, or to any interstate or foreign distribution of the proceeds of such gambling.

The Act would only apply to “business enterprises” involved in illegal gaming, so that e-mail gambling between individuals would likely not be covered. And the Rewis decision seems to bar prosecution of an Internet gambling enterprise’s customers as long as they remain mere customers.[18] But an Internet gambling venture that constitutes an illegal gambling business for purposes of the Illegal Gambling Business Act, and is engaged in some form of interstate or foreign commercial activity in furtherance of the business will almost inevitably have included a Travel Act violation.

References Edit

  1. Michael P. Kailus, Do Not Bet on Unilateral Prohibition of Internet Gambling to Eliminate Cyber-Casinos, 1999 Univ. of Ill. L. Rev. 1045, 1057; Joel Michael Schwartz, The Internet Gambling Fallacy Craps Out, 14 Berkeley Tech. L.J. 1021, 1028-29 (1999); Jonathan Gottfried, The Federal Framework for Internet Gambling, 10 Richmond J. of L. & Tech. 26, 52 (2004); General Accounting Office, Internet Gambling: An Overview of the Issues 11 (Dec. 2002).
  2. 18 U.S.C. §§1955(a), 3571(d).
  3. Id. §§1956 and 1957.
  4. Id. §§1961-63.
  5. United States v. Escobar-de-Jesus, 187 F.3d 148, 177 (1st Cir. 1999) (full-text); United States v. Bankston, 182 F.3d 296, 315 (5th Cir. 1999) (full-text); United States v. Montford, 27 F.3d 137, 138 n.1 (5th Cir. 1994) (full-text); United States v. Xiong, 262 F.3d 672, 676 (7th Cir. 2001) (full-text); United States v. Burns, 298 F.3d 523, 537 (6th Cir. 2002) (full-text); United States v. Welch, 327 F.3d 1081, 1090 (10th Cir. 2003) (full-text).
  6. Rewis v. United States, 401 U.S. 808, 811 (1971) (full-text).
  7. 401 U.S. at 811. Unlike 18 U.S.C. §1953 (interstate transportation of certain gambling paraphernalia), Section 1952 does not exclude the interstate or foreign shipment of newspapers (whether soliciting customers or otherwise) from the activities that may trigger the section's jurisdictional element. See e.g., Erlenbaugh v. United States, 409 U.S. 239 (1972) (full-text) (upholding a conviction for a violation of Section 1952 which took the form of interstate delivery of newspapers "scratch sheets" to out-of-state bookies).
  8. United States v. Baker, 227 F.3d 955, 962 (7th Cir. 2000); United States v. Jenkins, 943 F.2d 167, 172 (2d Cir. 1991); United States v. Graham, 856 F.2d 756, 760-61 & n.1 (6th Cir. 1988).
  9. United States v. Baker, 82 F.3d 273, 275 (8th Cir. 1996).
  10. United States v. Auerbach, 913 F.2d 407, 410 (7th Cir. 1990).
  11. Interstate travel will also suffice, United States v. Xiong, 262 F.3d 672, 676 (7th Cir. 2001).
  12. United States v. Baker, 82 F.3d at 275; United States v. Auerbach, 913 F.2d at 410.
  13. United States v. Baker, 82 F.3d at 275-76; United States v. McNeal, 77 F.3d 938, 944 (7th Cir. 1996); United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996).
  14. United States v. Roberson 6 F.3d 1088, 1094 (5th Cir. 1993); see also United States v. James, 210 F.3d 1342, 1345 (11th Cir. 2000); United States v. Saget, 991 F.2d 702, 712 (11th Cir. 1993) (“If the defendant engages in a continuous course of cocaine distribution rather than a sporadic or casual course of conduct, then the statutory requirement of a business enterprise involving narcotics is satisfied”); United States v. Iennaco, 893 F.2d 394, 398 (D.C. Cir. 1990).
  15. United States v. Griffin, 85 F.3d 284, 287-88 (7th Cir. 1996); United States v. Campione, 942 F.2d 429, 433-36 (7th Cir. 1991); United States v. Jones, 909 F.2d 533, 536-39 (D.C. Cir. 1990).
  16. United States v. Jenkins, 943 F.2d 167, 173 (2d Cir. 1991); United States v. Admon, 940 F.2d 1121, 1125 (8th Cir. 1991); United States v. Burns, 298 F.3d 523, 537-38 (6th Cir. 2002); United States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003).
  17. United States v. Childress, 58 F.3d at 721 (D.C. Cir. 1995) (citing the Pinkerton principle of co-conspirator liability); see also, United States v. Auerbach, 913 F.2d at 410 (7th Cir. 1990) (co-conspirator liability); United States v. Lee, 359 F.3d 194, 209 (3d Cir. 2004) (aiding and abetting); United States v. Stott, 245 F.3d 890, 909 (7th Cir. 2001) (aiding and abetting); United States v. Pardue, 983 F.2d 943, 945-46 (8th Cir. 1993) (aiding and abetting); United States v. Dischner, 974 F.2d 1502, 1521 (9th Cir. 1992) (aiding and abetting).
  18. Contra Seth Gorman & Anthony Loo, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 Loyola of L.A. Entertain. L.J.at 675 (“The Travel Act applies not only to Internet casinos, but it also seems to apply to players who use interstate facilities for the transportation of unlawful activities [i.e., their wagers]”) (the article does not discuss the Rewis case).

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