## Facts

- The United States indicted Theodore Black, Irving Snow, Harry Snow, Harold Halpern, Henry Shapiro, Jerome Kurtz, and Peter Martella, alleging operation of a gambling establishment on a “gambling ship,” plus related offenses.
- The alleged conduct occurred aboard the T.S.S. *Olympia*, a Greek Line vessel, during a weekend voyage that departed from and returned to a U.S. port.
- Defendants asserted by affidavit that the voyage was a “cruise to nowhere” and that gambling, if any, occurred beyond twelve miles from the U.S. coastline in a common area allegedly set aside by the ship’s master for a fraternal group’s charitable activities.
- The indictment relied principally on 18 U.S.C. § 1082 (operating a gambling establishment on a gambling ship), with “gambling ship” defined in 18 U.S.C. § 1081 as a vessel “used principally” for gambling; certain defendants were also charged under 18 U.S.C. § 1952 (Travel Act) and with conspiracy.
- Most defendants moved under Fed. R. Crim. P. 12 to dismiss the indictment on statutory and constitutional grounds and sought ancillary pretrial relief (including grand jury minutes and particulars).

## Issues

1. Whether the indictment sufficiently alleged offenses under 18 U.S.C. §§ 1081–1082 and related counts, or whether it failed as a matter of law based on defendants’ factual characterizations of the voyage and activities.
2. Whether the term “used principally” in the statutory definition of “gambling ship” is unconstitutionally vague.
3. Whether Congress may apply § 1082 to U.S. citizens or residents operating gambling aboard a foreign-flag vessel on the high seas beyond the territorial sea.
4. Whether factual disputes presented by defense affidavits may be resolved on a Rule 12 motion to dismiss.

## Decision

- The court denied the motion to dismiss the indictment.
- The court held the indictment legally sufficient on its face and declined to adjudicate contested facts through affidavits at the pleading stage.
- The court rejected the void-for-vagueness challenge to “used principally,” concluding the term had an ordinary meaning capable of jury application.
- The court upheld application of § 1082 to U.S. citizens or residents allegedly operating gambling on the high seas aboard a foreign vessel tied to U.S. travel and ports.
- The court denied inspection of grand jury minutes absent a particularized need and declined to order expansive pretrial particulars/discovery beyond standard practice.

## Legal Principles

- On a Rule 12 motion to dismiss, courts generally test the legal sufficiency of the indictment on its face, assuming the allegations are true, and do not resolve factual disputes based on defense affidavits.
- A criminal statute is not void for vagueness merely because it uses a general term; the question is whether persons of ordinary intelligence must guess at its meaning and whether it permits arbitrary enforcement.
- “Used principally” in defining a “gambling ship” conveys a primary-use standard and is sufficiently definite for notice and jury determination.
- Congress may, within constitutional limits, regulate and punish conduct of U.S. citizens or residents beyond the territorial sea, including aboard foreign-flag vessels, where the statute clearly reaches such conduct and U.S. interests are implicated.
- Grand jury materials remain secret absent a showing of particularized need; speculation that minutes may aid the defense is insufficient.

## Conclusion

The court allowed the prosecution to proceed, holding that the indictment adequately alleged violations of the gambling-ship statute and related offenses, that “used principally” was not unconstitutionally vague, that § 1082 could reach U.S. nationals operating gambling on a foreign vessel on the high seas, and that disputed facts about the voyage and onboard activities were for trial rather than dismissal under Rule 12.


United States v. Black, 291 F. Supp. 262 (S.D.N.Y. 1968)