a civil case, the Government need only prove by a preponderance of the evidence that the defendant is likely in the future to engage in conduct that violates the law-in this case the RICO statutes. While past illegal conduct by the defendant would most commonly be used to demonstrate the likelihood of future violations, such evidence is not absolutely necessary. It is possible to grant immunity from criminal prosecution to one witness and, by using discovery techniques, develop information against other defendants which is sufficient to obtain civil relief all of them. against

Finally, the injunctive relief restraining the defendants :rom participating in future gambling activities need not apply only to illegal conduct. The injunction can prohibit the performance of an otherwise lawful act." For example, an individual who is restrained from accepting horse wagers can be prohibited from visiting a racetrack in a State where parimutuel gambling is legal. Also, a defendant he forced to divest himself of property that he utilizes

to carry out his illegal gambling business-for example, a legitimate business used as a cover for the illegal operation. It may also be possible to require defendants to submit reports disclosing their employment and source of income to make it more difficult for them secretly to reenter an illegal gambling operation. Because the relief sought is of an equitable nature, the court can fashion any relief that is appropriate to carry out its order, thereby providing great flexibility in controlling the defendant's participation in illegal gambling operations in the future.

The Commission finds the civil remedies provided in 18 U.S.C. 1964 to be cost-effective, thorough, and capable of great success in stemming illegal gambling in the United States. The Commission recommends retention of these statutes, selective utilization of this remedy by the Federal Government against major gambling businesses connected with organized crime, and the adoption by the various State governments of civil relief statutes similar to 18 U.S.C. 1964.99

Through constitutional grants of power, the Federal Government is given jurisdiction over certain tracts of land that include Indian reservations, military installations, and territories and possessions. To the extent that these areas differ from States in the application of Federal laws relating to gambling, they warrant separate treatment. 100

Indian Reservations

The Indian tribes once were separate and sovereign nations within what is now the United States, but through conquests and subsequent treaties, tribal units were placed under Federal protection, within specified grants of land. These grants in land, or reservations, were deemed to be "distinct political communities" subjected, by the Constitution, to exclusive Federal jurisdiction. States were therefore preempted from enforcing their laws within the reservation's territorial boundaries.101

The Constitution delegates to the Federal Government the "power to regulate Commerce... with the Indian tribes."102 The commerce clause, however, has not been found to be the sole basis for Federal police power over Indian reservations, as it is in the regulation of such offenses as gambling. 103 Additional police power in this instance stems from the Federal authority to regulate the territories, a power which is not dependent upon specific constitutional grant. 104 This Federal power supersedes any tribal ordinances that may be in conflict with it, thereby nullifying such ordinances. 105 Federal prohibitions do not, however, constitute the total regulatory body of laws by which Indian reservations are governed: The Assimilative Crimes Act permits the use of State statutes to cover offenses not covered by the Federal criminal code,10% and tribal governments are permitted to regulate offenses committed among Indians on the reservation.

While the Federal Government has retained a guardianship role vis-a-vis the Indian population, it is under no obligation to continue this role. Congress is the sole arbiter of when and how the present Federal role is to be changed or terminated; 107 the Indians themselves are powerless to alter or suspend the existing relationship. In withdrawing Federal control, Congress can cause jurisdiction over the reservations to be delegated to the States, and, in fact, has taken steps in that direction by passage of Public Law 83-280.10 This statute granted civil and criminal jurisdiction over reservations to the States; subsequent amendments included the requirement that tribal consent to a State's assumption of jurisdiction be given before such jurisdiction could apply. The statute contains specific language reiterating the principle that the respective State's criminal code would have the same weight on Indian territory as it has throughout the rest of the State. While this statute was passed with an eye toward eventual termination of Federal supervision in this area, it also made clear that such termination was to be effected gradually.109

Perhaps the most controversial issue arising from Public Law 83-280 concerns taxation. The statute itself contains explicit language prohibiting State taxation of Indian concerns.110 Nevertheless, States have shown an understandable interest in taxing the Indians' economic activities in view of their increasing stature in the political and economic life of the State. State attempts to levy any such taxes have, to date, failed."

Of the myriad of Federal statutes dealing with prohibition of gambling activities, only one specifically prohibits a single gambling activity on an Indian reservation; the legalization of all other games is dependent upon State law. This statute. part of the

Johnson Act, states:

It will be unlawful to manufacture, recondition, repair, sell, transport, possess, or use any gambling device in the District of Columbia, in any possession of the United States, within Indian country as defined in section 1151 of Title 18 or within the special maritime and territorial jurisdiction of the United States as defined in section 7 of Title 18.112

The Commission fails to see any reason why, as to this particular activity, Indian reservations should not receive treatment consistent with State law. It does not consider the nature of the offense to be such as to warrant its continuing to be singled out as an area of Federal jurisdiction while other types of gambling activity on the reservation are subject to applicable provisions of State law. The continuation of this policy is neither in the national interest, nor is it protective of one State's rights from infringement by a sister State. Consequently, the Commission recommends repeal of 15 U.S.C. 1175. To do so would then place all gambling activities under the control of applicable State law. The Commission further recommends that legal gambling activity of any kind conducted on an Indian reservation pursuant to State law should be subject to the same rate of taxation as that same activity conducted elsewhere in the State. That activity would presumably be subject to the same licensing and regulatory requirements whether conducted on or off a reservation. Therefore, the licensing privilege should be accompanied by the correlative duty of equal taxation.

Military Installations

This subsection examines the application of gambling laws to military installations, which are broadly defined as any land area controlled or used in the pursuance of military activities. Because of the status of the specific and area, Congress has the authority to enact general municipal legislation applicable within that land area. 113 The method by which each tract of land within an installation is acquired, as well as the time of its acquisition, may affect the type of legislative authority available to the Federal Government. 114 Therefore, each tract must be treated individually; more often than not, military installations have been built up over a period of years in a series of increments acquired through different methods, thereby creating a complex jurisdictional pattern. However, there are three basic types of jurisdiction over military installations which may inure to the Federal Government:115 1. Exclusive Legislative Jurisdiction. Under this situation, the Federal Government has received all authy to legisla, with none left to the individual State. 2 Concurrent Legislative Jurisdiction. This limits Federal authority by virtue of the State's having reserved to itself the right to exercise, concurrently with the Federal Government, all or some of the same authority, insofar as such State authority is not inconsistent with Federal authority.

3. Proprietarial Interest. Under this situation, the Federal Government has acquired some degree of ownership in

the land, but has not derived any legislative authority. The fact that the Federal Government has legislative authority, either exclusive or concurrent, over a particular area, does not establish that it has actually passed applicable legislation, only that it has the authority to do so. As to the Federal statutes dealing with gambling, only 15 U.S.C. 1175, dealing with gambling devices, makes specific reference to military installations under exclusive and concurrent Federal jurisdiction.116 In general, Title 18, which codifies Federal crimes, applies to military installations; the Assimilative Crimes Act, discussed supra, is utilized to provide jurisdiction over offenses not covered by Tile 18. This act operates only when there is no applicable Federal statute, and cannot be utilized to enlarge upon or narrow the scope of the Federal offense.117 Any State laws which contravene the Federal provisions are not applicable under the Assimilative Crimes Act. Therefore, with respect to gambling offenses, those games not expressly proscribed by Federal statute are governed by State law through an application of the Assimilative Crimes Act.11 In addition, the operations of any games on a military installation that are legal within the particular State are subject to the rules and regulations promulgated by the particular branch of the service having jurisdiction; these rules also differ among the branches. 119

As discussed in the section of this chapter dealing with Indian reservations, the Commission is of the opinion that specialized treatment of a Federal enclave with respect to gambling devices is not in keeping with the stated national policy toward gambling; therefore, the Commission recommends that 15 U.S.C. 1175 be repealed. The applicable State statutes should be the governing force, and those rules of a particular branch of service which conflict with the State statutes should also be repealed.

Territories and Possessions

The Constitution establishes Congress' discretionary authority to impose Federal regulation on territories and other property belonging to the United States. 120 In this regard, Congress has made Federal gambling legislation applicable to Guam, the Virgin Islands, and American Samoa in the same manner that such legislation is applicable to the several States. 121 In two instances, however, Congress has delineated a special treatment in the area of gambling regulation: The provisions of the Johnson Act, discussed herein, while defining the Virgin Islands and Guam as "States" for purposes of the act, retain the specific proscription as to gambling devices as applying only to American Samoa,122 and 18 U.S.C. 1301 specifies its prohibition against the transportation of lottery tickets to apply to the Canal Zone. 123 The Commission does not feel that these isolated instances of specialized treatment are in keeping with the stated national policy of permitting individual States to determine their own policy as to gambling legislation. The Commission does not feel that certain territories and possessions of the United States should be accorded unique treatment in the area of

gambling legislation; there does not appear to be any

rationale for restricting the governments of Samoa and the Canal Zone, while permitting the local governments of other U.S. possessions and territories to conduct the same activity. As stated earlier, the Commission recommends repeal of 15 U.S.C. 1175. It further recommends removal of the Canal Zone from the express provisions of 18 U.S.C. 1301.

The Commonwealth of Puerto Rico retains a singular status by virtue of a contract arrangement which voluntarily associates the Commonwealth with the United States, 124 This contract provides that the Federal laws of the United States are applicable to Puerto Rico with two exceptions: The first provides that Federal legislation would not apply in instances where local conditions would make such application undesirable. 125 This, in part, explains the exclusion of Puerto Rico from the application of the Johnson Act, since the Commonwealth has an interest in res enues derived from the operation of its casinos and

the attendant attraction of tourism. The second exception provides an exemption for Puerto Rico from the internal revenue laws of the United States. 126 The result of this exemption is the freedom from Federal taxation of any profits realized from gambling activities in the Commonwealth of Puerto Rico. It must be emphasized that these provisions are applicable only through the contractual arrangement between the Commonwealth and the U.S. Government; possessions do not per se have the status of being recognized as individual entities for the purposes of taxation, and are therefore subject to the full anonly of Federal call ཀ local taxes that may apply. 127 The Commission recommends the continuation of these policies with respect to gambling taxation, with the further recommendation that any possession which acquires the status of a Commonwealth in the future should be accorded treatment equal to that of the Commonwealth of Puerto Rico.

Historically, there have been other areas in which it was felt that antigambling proscriptions would be helpful, although these statutes have been utilized little, if at all, since their passage.

8 U.S.C. 1101, 1182128

These provisions of the immigration and naturalization laws indicate the intent to exclude from naturalization persons with a history of illegal gambling violations. As originally written, 8 U.S.C. 1182 was intended to exclude from entry into the United States aliens coming in to engage in "unlawful commercialized vice." Although the original bills contained no specific reference to gambling, a later attempt to clarify 8 U.S.C. 1182 led to addition of the specific language of 8 U.S.C. 1101. The definition of "good moral character" necessary for naturalization or relief from deportation contained particular language designed to exclude persons with a background of illegal gambling activity.

The Immigration and Naturalization Service (INS) does not maintain statistics on the number of applications for naturalization or for relief from deportation that have been denied because of provisions of 8 U.S.C. 1101 and 1182. The Commission is advised, however, that these statutes are in fact utilized. 129 In these instances, the INS relies upon investigative efforts of other agencies rather than conducting investigations of its own into illegal gambling

activities.

Although the Commission has been unable to determine the manpower or cost factors attributable to administration of these statues, it is nevertheless of the opinion that they should be retained. Immigration continues to be a matter of national concern, and exclusion of undesirable persons is unquestionably in the best interests of the country. So long as the exclusion covers a specified list of illegal

activities, the Commission recommends retention of gambling activities within that list.

7 U.S.C. 2044130

This statute, part of the Farm Labor Contractor Registration Act, permits suspension or refusal of a certificate of registration to a migrant farmworker crew leader convicted of a State or Federal law relating to gambling.

The intent of the entire Registration Act was to protect migrant workers from exploitation by irresponsible crew leaders. The provision relating to gambling convictions was predicated upon a finding that gambling was one of the several schemes through which unscrupulous crew leaders were able to take advantage of their workers.131

The Commission has been advised by the Department of Labor that applicants for certificates of registration are routinely fingerprinted and that the prints are forwarded to the FBI for criminal record checks. If the applicant has a criminal record, it is forwarded to the Department of Labor; if the record reflects a gambling conviction, the Department can then request further information about the conviction. If the gambling violation was committed in connection with or incident to the applicant's activities as a farm labor contractor, the violation falls within the purview of 7 U.S.C. 2044 as grounds for denial of a certificate. 132

The Department of Labor reported no instances where followup requests for information were made; the Commission therefore assumes that in no instance did the Department of Labor receive a criminal record indicating a gambling conviction:133

The Commission believes the continuation of this protective measure to be in the national interest; apparently,

The Federal Communications Commission proscribes the broadcasting of certain horseracing information believed to provide assistance to illegal gambling operations. Licensees must normally wait until 30 minutes after a race has been run before broadcasting information concerning the outcome. This proscription struck at the practice of illegal horse bettors' using the winnings of previous bets as the basis for subsequent wagers. If a bettor could not obtain the result of his wager on the first race until after the second race was run, it was believed that he was less likely to place a bet on that second race. The policy was established pursuant to the Communications Act of 1934, which requires the FCC to serve the "public convenience, interest, and necessity," since in this case the "public interest" was found to dictate a suppression of gambling related to organized crime. 135 No administrative sanctions have ever been issued under this policy,136 and it has never been extended to the broadcasting of information about other sporting events on which wagering, legal or illegal, takes place.

That this proscription has had an effect on illegal horserace wagering is evidenced by the complicated methods devised by illegal bookmakers to acquire race results and prices promptly, and by the elimination of illegal "wirerooms" around the country. However, in an era when wagering on sporting events-as opposed to wagering on horseracing-has become the major form of illegal gambling, the FCC policy may be overly selective. There is abundant evidence that sports betting is greatly affected by the broadcasting of the results or of the events themselves. Moreover, the same kind of sequential betting which characterizes horse betting also characterizes some sports betting; a bettor may place bets for evening games only after he has received the results of games played earlier in the day. The Commission believes that the FCC proscription of horseracing broadcasts should be modified to treat consistently all information needed in illegal wagering operations. The FCC should reevaluate whether its proscription should be broadened to include sporting events, or narrowed to cover only the immediate broadcast of the prices paid on a winning racehorse, thus permitting the broadcast of the race results themselves. In revising its policy, the FCC must consider the practical differences between horse betting and sports betting, and whether the broadcasting of information-e.g., point spreadsprojecting the outcome of sporting events should not be curtailed.

Department of Defense Practices

As a general rule, United States military personnel are not permitted to gamble while on Government property or while on duty. There are exceptions, however; for example, the Air Force allows limited card games or nominal games of chance to take place in open mess facilities where these activities do not violate local law or custom. All three branches of the armed services permit controlled bingo games on Government installations. While the Army and the Air Force prohibit the operation of gaming devices, the Navy authorizes their use at overseas Navy and Marine Corps club facilities outside United States territory, where United States and foreign laws permit. The devices are carefully controlled, and detailed regulations specity the rate of payback, auditing procedures, and related matters. Revenues from the devices benefit the clubs and messes. Other forms of gambling are prohibited at Navy clubs, with the exception of dice cups at the bar. The military codes of conduct also cover gamblingrelated activities by restricting behavior which is not in the best interest of the services; for example, Air Force officers are not permitted to gamble with enlisted men. The Army, Navy, and Air Force all require off-duty personnel to conform with the criminal gambling statutes of the jurisdictions within which they are located. 137 The Commission believes that no changes in the policies are

necessary.

Sports Bribery

Prior to 1964, 18 U.S.C. 1952 was the sole tool afforded the Federal Government in its attempt to prosecute sports bribery violations involving interstate commerce.138 This statute was of limited scope, however, because its application was contingent upon the violation having occurred in a State which had enacted laws proscribing sports bribery. Before 1964, 12 States had enacted no such statutes, even though they had considerable interest in the conduct of sporting events. 139 Furthermore, in those States which had enacted sports bribery statutes, State and local law enforcement had become increasingly more difficult because of the significant interstate nature of the criminal activity involved and the inadequacies of those statutes relied upon to control it. State law enforcement agencies were thus handicapped either by an absence of adequate laws in this area of concern or by jurisdictional limitations. The Federal Government was similarly handicapped by a lack of comprehensive statutory authority to assert its full police powers. This lack of Federal authority was remedied in part by the enactment of Public Laws 87-216, 87-218, and 87-228 during the first session of the 87th Congress, but such authority was still narrowly confined and restrained. It was in response to this circumscription of Federal involvement and the rise of organized criminal activities in this area that section 1952 was supplanted in 1964 by 18 U.S.C. 224.140

The purpose of this statute is to make it a Federal criminal offense to influence, by bribery, any sporting contest through the use of interstate commerce of any facility for transportation or communication. Unlike section 1952, this legislation is not limited by any consideration of whether the violation must occur in a State having laws proscribing such activity before the statute becomes effective. Furthermore, this statute is not ntended to relieve or abrogate the responsibility of colleges or professional sporting associations to enforce their obligations or regulations respecting sports bribery, or to affect or interfere with the efforts of local law enforcement agencies against local violations. 4īnis legislation merely affords Federal authorities the capacity to control interstate conspiracies beyond the capacity of the local authorities and to close the jurisdictional gaps previously encountered. As described by Senator Kenneth Keating in Senate Report No. 593 (October 22, 1963):

This bill would provide the authority our law enforcement agencies need to prevent gamblers from corrupting college and professional sports. It would halt the contamination of sports by organized gambling syndicates by punishing any players or officials as well as gamblers who attempt to corrupt these games for personal gain. It would cover schemes to affect the point spread in a contest as well as to throw the game entirely and would apply to every case in which interstate facilitiessuch as the telephone or the mails-have been used to carry out the conspiracy.142

Beyond relieving jurisdictional encumbrances, the second major premise upon which this statute is based was the notion that sports betting had become a favorite outlet of organized crime and that the profits made from the

Criminal Enforcement

bribery of athletic contestants are central to the nourishment of other illegal activities. As characterized by the Department of Justice in its review of this legislation, section 224 constitutes "a further step toward strengthening the supporting role of the Federal Government in the assault on organized crime." 143 The leaders of many associations responsible for regulating sporting events also espoused the assertion that a pervasive criminal conspiracy had invaded college campuses and sports arenas and that Federal involvement was necessary to preserve public confidence in the conduct of those events. Thus, as in the majority of the gambling statutes enacted during this period, the impetus of organized crime control was a significant catalyst in the enactment of section 224.

The most recent data from the FBI show that, since 1970, seven convictions have been realized under this statute.1⁄4 Although specific details about the nature of these offenses have not been provided to the Commission, it has been found that four convictions involved superfecta harnessracing violations, 145 two involved bribery of football players,14% and one involved off-track betting.14 None of these convictions involved organized crime figures and none of the courts' findings addressed the issue of such involvement.

Nevertheless, the Commission believes the statute to be an effective deterrent to corruption of sports events, and recommends its retention on those grounds. If there is a move toward legalization of sports betting (see chapter 6), this statute would increase in importance; it would then be appropriate for the Federal Government to have jurisdiction over instances of bribery affecting a State's revenue-raising potential.

Primary responsibility for enforcement of gambling laws was vested in State and local agencies until the early 1960's. Although the Federal Government has had limited criminal jurisdiction over certain types of illegal gambling since 1948, it had no vigorous enforcement tools at its disposal until 1961, when Congress passed three antiracketeering statutes designed primarily to attack illegal interstate gambling (18 U.S.C. 1054, 1952-1953). Congress felt these statutes were necessary because, given the interstate nature of large gambling operations, no effective attack upon organized illegal gambling was being waged at the local level. In 1970, Federal jurisdiction was extended to cover intrastate gambling operations of a specified size, because these businesses were thought to have a deleterious effect on interstate commerce.

Enforcement of Federal statutes prohibiting gambling is vested in the FBI and in the Department of Justice, which has delegated this responsibility to its Organized Crime and Racketeering Section (OCR). Officials of both agencies have testified extensively before this Commission.14 The

agencies agree that the most valuable tool available to law enforcement agencies in their fight against illegal gambling is the use of court-authorized electronic surveillance, or "wiretaps." Wiretaps have been widely used in gambling cases since 1968, when they were legalized under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act. In fact, 72 percent of all Federal wiretaps were used in connection with gambling investigations, 149 Although Federal officials have testified before this Commission that they believe existing statutes and enforcement procedures are adequate to combat illegal gambling, they concede that there has been no decrease in either the level of interest in, or the availability of, illegal numbers and sports bookmaking. This is not to say, however, that Federal criminal enforcement of gambling statutes has had no effect. On the contrary, the Commission notes that its effectiveness against certain types of illegal games has been demonstrable: Illegal casinos in such cities as Covington, Ky., and Hot Springs, Ark., no longer exist; illegal slot machines, once prevalent in many small communities, are now a rarity; illegal horserace wirerooms and many of the major interstate