Before HASTINGS, Chief Judge, DUFFY and SWYGERT, Circuit Judges.
The defendants were indicted in a twenty-count indictment. Counts 2 through 19 charged violations of Sections 1952 and 2, Title 18 U.S.Code, in that they did travel in interstate commerce with intent to carry on an unlawful activity, to-wit: gambling and aiding and abetting the same.
Count 1 charged the defendants with conspiring to violate Section 1952, Title 18 U.S.Code. However, all defendants were acquitted of this charge at the close of the evidence.
Count 20 charged a violation of Sections 203 and 501, Title 47 U.S.Code. This charge was dismissed on motion of the Government.
Counts 10, 11 and 12 were dismissed by the Court on motion of the Government at the close of the Government's evidence.
The jury returned verdicts convicting defendant Zizzo on Counts 2 through 9, and 13 through 20; defendant Stasnick on Counts 2 through 8; defendant Lazzareschi on Counts 17 through 19, and defendant Wojciechowski on Count 9 and Counts 13 through 16.
In 1961, defendant Zizzo operated a gambling business (referred to as "book-making") at various addresses in Indiana. Zizzo did not leave the state of Indiana in connection with the operation of his business.
The co-defendants of Zizzo were employees in the operation of his gambling business. They took bets for Zizzo at various locations in Hammond, Indiana, such as South Shore Recreation, Hessville Recreation, Wright's Inn and Nardi's. Bets were often phoned in to Zizzo who maintained headquarters in a back room at Nardi's Confectionery, 119th Street, Whiting, Indiana.
As required by Indiana law, Zizzo filed Indiana Employers' Withholding Tax Return Forms. For 1961, this return listed Wojciechowski, Lazzareschi and Stasnick as Illinois residents. A similar return for 1962 gave Illinois addresses for Wojciechowski and Lazzareschi.
In July 1961, Zizzo signed and filed a Federal Wagering Tax Registration form which stated that Wojciechowski lived at a Chicago, Illinois address. Places that Zizzo rented in Hammond were listed as the resident address of two of the co-defendants. Zizzo paid the tax for nine employees including Stasnick, Lazzareschi and Wojciechowski.
In May 1962, Wojciechowski told an FBI agent his true address was in Chicago but that he used a designated address in Hammond at the suggestion of his employer. The testimony also showed that Stasnick informed an FBI agent that he used an Indiana address while actually living in Chicago.
Defendants vigorously attack the constitutionality of 18 U.S.C. § 1952. They urge that the statute, if construed broadly, constitutes an exercise of power not delegated to the United States, and violates the privileges and immunities of the citizens of the states and of the ...