United States v. Zizzo

• Decision Date: 16 December 1964
• Docket Number: No. 14411.,14411.
• Citation: 338 F.2d 577
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Nick ZIZZO, Alexander Stasnick, Hugo A. Lazzareschi and Walter Wojciechowski, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

338 F.2d 577 (1964)

UNITED STATES of America, Plaintiff-Appellee, v.Frank Nick ZIZZO, Alexander Stasnick, Hugo A. Lazzareschi and Walter Wojciechowski, Defendants-Appellants.

No. 14411.

United States Court of Appeals Seventh Circuit.

October 19, 1964.

Rehearing Denied December 16, 1964.

Maurice J. Walsh, Edward J. Calihan, Jr., Chicago, Ill., for appellant.

Herbert J. Miller, Jr., Asst. Atty. Gen., Sidney M. Glazer, Atty., U. S. Dept. of Justice, Washington, D. C., Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., Beatrice Rosenberg, Allen J. Krouse, Dougald D. McMillan, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before HASTINGS, Chief Judge, DUFFY and SWYGERT, Circuit Judges.

DUFFY, Circuit Judge.

The defendants were indicted in a twenty-count indictment.Counts 2 through 19 charged violations of Sections 1952and2,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 203and501,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 "bookmaking") 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 United States.They also argue the statute is unconstitutionally vague.

18 U.S.C. § 1952 provides, in pertinent part, as follows:

"Interstate and foreign travel or transportation in aid of racketeering enterprises

"(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to —

"(1) distribute the proceeds of any unlawful activity; or

"(2) commit any crime of violence to further any unlawful activity; or

"(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, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion or bribery in violation of the laws of the State in which committed or of the United States.

* * *"

The theory of the Government as to the conviction of Zizzo is that the proof clearly established that Zizzo's gambling operations in Indiana were the inducement for the interstate travel of his employees who lived in Illinois; that Zizzo thus aided and abetted his three co-defendants in that travel and in their engaging in illicit gambling operations in Indiana; that when they crossed the Illinois-Indiana state line, they had the requisite intent to engage in the illegal activity, and that they did, in fact, as employees of Zizzo, receive moneys placed on bets, and did telephone bets to Zizzo's headquarters.

The theory of the Government as to the conviction of defendants Stasnick, Lazzareschi and Wojciechowski is that they were residents of Illinois and travelled in interstate commerce with the requisite intent of assisting Zizzo in carrying on the promotion of an unlawful activity, to-wit: a gambling operation, in the state of Indiana.

The principal arguments of the defendants are: 1) the statute is unconstitutional; 2) that certain documents which were filed pursuant to one federal statute were used as incriminating confessions in a prosecution under another federal statute; 3) that the court erred in denying a motion to suppress such evidence; 4) that innocuous travel by three defendants to and from their homes was inconsequential to the conduct of the unlawful activity and was not within the prohibition of the statute; 5) that the Government prosecutors were guilty of prejudicial misconduct in expressing opinions as to the guilt of the accused; 6) that defendants were entitled to examine the master FBI report; and 7) the Court erred in refusing to give certain instructions.

We hold the statute here under consideration is constitutional.We think the Congress had the power, under the Commerce Clause, to make it unlawful to travel from one state to another to promote a gambling enterprise which was illicit by the laws of the state where the gambling was carried on.

On April 18, 1961, Bill S 1653¹ was introduced in Congress largely at the instigation of the Attorney General.Its title was "Interstate and foreign travel in aid of racketeering."This bill provided that it would be an offense for anyone to travel in interstate or foreign commerce with intent to commit any act proscribed in the statute.The bill did not require that any act be committed subsequent to the interstate travel.An amendment was adopted providing that a person who travels interstate and who "thereafter performs or attempts to perform" an act pursuant to the evil intent proscribed, would be punished.The title of the bill was changed to "Interstate and foreign travel or transportation in aid of racketeering enterprises."(S.Rep. No.644, 87th Cong., 1st Sess., p. 2)

The Committee report quoted from the testimony of the Attorney General before the Committee.From this it appears the purpose of the bill was to curtail those involved in gambling, narcotics, prostitution and several other crimes, by making unlawful interstate travel in furtherance of such activities.The report quoted the Attorney General — "Obviously we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise."(Id., p. 3)

In the instant case, all of the defendants were involved and connected with a continuing business enterprise which was illegal under the laws of the state of Indiana.

Zizzo strongly contends he personally did not travel in interstate commerce in...