Before HASTINGS, Chief Judge, and DUFFY and SWYGERT, Circuit Judges.
This is an appeal from an order of the District Court, granting defendants' motion to dismiss the indictment. The defendants were charged in a three-count indictment with violating and conspiring to violate Title 18, §§ 1084 and 1952, United States Code.
Section 1084, Title 18, provides in pertinent part:
"(a) Whoever being enaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both."
Section 1952, Title 18, provides in pertinent part:
"(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to -
"(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
"(b) As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, * * * in violation of the laws of the State in which they are committed or of the United States, * *."
Count 1 was the conspiracy count charging the three defendants and one co-conspirator, not named as a defendant, with conspiracy to violate said §§ 1084 and 1952. The counts spelled out the use of a telephone in interstate commerce for the transmission of bets and wagers and information assisting in the placing of bets and wagers on horse races. It charged travel by defendants in interstate commerce from Milwaukee, Wisconsin, to Hot Springs, Arkansas, to promote the unlawful activity described, and set forth in some detail how defendant Donahue and one Rhode would receive the results of races in Hot Springs and transmit the names of the winners in the horse races to defendants Bergland and Cantrell in Milwaukee; that defendant Bergland would then "pastpost",*fn1 that is, place bets with bookmakers in Milwaukee, based upon the information which he had received.
Count 1 also charged that defendants Bergland and Cantrell would travel from Milwaukee, Wisconsin, to Hot Springs, Arkansas, and would receive the results of horse races run at Hot Springs and by means of telephone, would transmit the results to defendant Donahue who would thereupon "past-post" bookmakers in Milwaukee.
Count II charged defendant Donahue traveled in interstate commerce and caused one Rhode to do likewise, from Milwaukee, Wisconsin to Hot Springs, Arkansas, with intent to promote, manage and establish an unlawful activity, to-wit: a business enterprise involving gambling offenses, in that defendant, being engaged in the business of betting and wagering, used a telephone to transmit from Hot Springs, Arkansas, to Milwaukee, Wisconsin, results of horse races, which information assisted in the placing of bets and wagers on horse races in violation of §§ 1084 and 1952, Title 18 United States Code.
Count III was quite similar to Count II. It charged defendants Bergland, Cantrell and Donahue, on a date different from that stated in Count II, had caused others to travel in interstate commerce from Milwaukee, Wisconsin, to Hot Springs, Arkansas, for the purposes set forth in Count II.
The indictment does not charge the defendants with "gambling." Rather, the defendants are charged with interstate travel with the intent to promote a business enterprise involving gambling offenses. This is broader than a charge that the defendants themselves engaged in gambling. Travel with a requisite intent ...