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Extracted from: Internet Gambling in Nevada: Overview of Federal Law Affecting Assembly Bill 466,
Courtesy of Liebert Publishing, Gambling Law Review.

In 1961, Congress also enacted the Interstate Transportation of Wagering Paraphernalia Act. According to the House Report, the purpose of the statute was to criminalize the interstate transportation, except by common carrier, "of any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, adapted, devised or designed for use in" bookmaking, wagering pools with respect to sporting events or a numbers, policy, bolita, or similar game.[106]

This statute [107] is designed to accomplish a very specific function. "It erects a substantial barrier to the distribution of certain materials used in the conduct of various forms of illegal gambling" by cutting off gambling supplies. [108] 108 By contrast, the Travel Act is not limited to illegal gambling, but rather addresses a much broader spectrum of "unlawful activity." [109]  Unlike section 1953, the Travel Act does not concentrate upon any particular type of materials, but instead focuses on "the use of facilities of interstate commerce with the intent of furthering an unlawful 'business enterprise.'" [110]

Many of the terms utilized in section 1953 are undefined words of general meaning, such as "paraphernalia," "paper," "writing" and "device." Nevertheless, it appears that "Congress employed broad language to 'permit law enforcement to keep pace with the latest developments . . .' because organized crime has shown 'great ingenuity in avoiding the law.'"[111]

Unlike the Travel Act that requires an intent to participate in an illegal business enterprise that is continuous or ongoing, section 1953 does not require specific intent to violate the law. [112]  In Mendelsohn, the defendants mailed a computer disk from Las Vegas to California for use in a bookmaking operation. [113]  The disk was encoded with a program called SOAP, or Sports Office Accounting Program. [114]  The program records and analyzes sports wagers. [115]  The Ninth Circuit held that the computer disk constituted a "device" within the meaning of the statute. [116]  Since section 1953 is not a specific intent statute but rather a general intent criminal provision, the court concluded that it was irrelevant whether the defendants knew that selling such a computer disk encoded with 17 SOAP outside of Nevada was illegal. [117]  As such, the government merely had to prove that the defendants knowingly (not by accident, mistake or ignorance) sent the disk in interstate commerce to be used in an illegal bookmaking operation. [118]  Therefore, if a subscriber to an on-line gaming site resides in a state without legalized gambling, sending of hardware and software through interstate commerce may, as some point out, [119] violate section 1953.


End notes:

[106]    U.S. Code. & Cong. News, 87th Cong. 1st Sess., 2635.

107]    See 18 U.S.C. 1953.

[108]    Erlenbaugh v. United States, 409 U.S. 239, 246 (1972).

[109]    See id.

[110]    Id.

[111]    United States v. Mendelsohn, 896 F.2d 1183, 1187 (9th Cir. 1990).

[112]    See Ruiz, 987 F.2d at 250-251; see also Marquez, 424 F.2d at 240.

[113]    See Mendelsohn, 896 F.2d at 1184.

[114]    See id.

[115]    See id.

[116]    See id. at 1187.

[117]    See id. at 1188.

[118]    See id.

[119]    See Nicholas Robbins, Baby Needs a New Pair of Cybershoes: The Legality of Casino Gambling on the Internet, supra, n. 97.  [2 B.U. J. Sci. & Tech. L. 7 (1996).]