Thе defendant-appellant, John Lookretis, prosecutes this appeal from a judgment order оf conviction and sentence entered following a trial before the court without a jury on a threе-count indictment each count of which charges him with violating 18 U.S.C.A. § 1952 and § 2 on a designated date. The case was tried upon a stipulation of facts, and exhibits admitted in evidence by stipulation.
On appeal thе defendant predicates the existence of grounds requiring reversal on insufficiency of the indictment fоr failure to apprise the defendant of the nature and the subject matter of the alleged use оf the wire facilities of the Western Union Telegraph Company; on insufficiency of the evidence tо support the finding of guilt; on unconstitutionality of § 1952; and on a violation of his Fifth Amendment privilege against self-incriminаtion.
We perceive no merit in the defendant’s attack upon the sufficiency of the indictment. It cоntains all of the elements requisite to charge an offense interdicted by the statute and the information necessary to apprise the defendant of what he must be prepared to meet. It meets thе standards prescribed by Hagner v. United States, 285 U.S.
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427,
Defendant’s contentions with respect to the insufficiency of the evidence from the standpoint of proof of “use” and “intent”, and with regard to the constitutional infirmity of § 1952 on grounds of vagueness are the same as those rejected in our recent decisions in United States v. Miller, 7 Cir.,
Defendant's additional argument that § 1952 infringes on rights protected by First Amendment guarantees of free speech and free press is wholly unpersuasive. It is clear that the statute places no restriction on thе dissemination of news — the scores of baseball games — by Western Union or others. It does prohibit the use оf an interstate wire facility with intent to promote illegal activity, and it is well within the power of Congress to so insure the integrity of channels of interstate commerce by such a prohibition.
Defendant’s remaining contention is that his conviction should be reversed for the reason that it rests in part on evidence in the fоrm of disclosures compelled by the federal wagering tax statutes (26 U.S.C.A. § 4411 and § 4412) which require the registration of persons engaged in the business of accepting wagers and impose a tax with respect theretо. Defendant asserts that such evidence is consequently inadmissible by reason of the Fifth Amendment privilege аgainst self-incrimination.
Although the stipulation upon which the case was tried does contain a recital which serves to establish that defendant made application for and was issued a federal wagеring tax stamp showing that he and one Anthony Oppolo were partners in the operation of the Fоrsythe Club (the East Chicago, Indiana, location at which the baseball pool was operated) during the period which includes the dates of the offenses charged, it was further stipulated that “public recоrds, federal tax returns and federal tax stamp application” established that during such period the defendant was a business partner of Oppolo in the enterprise known as the Forsythe Club. In addition, the stipulаtion further established that the business carried on at the Forsythe Club among other gambling activities, included the bаseball pool operated by the defendant and Oppolo, and that records of the Westеrn Union Telegraph Company show that the defendant contracted with it for the supplying of the sports infоrmation by Western Union ticker. Inasmuch as the stipulation otherwise, and wholly apart from and independent of the recital concerning the application for and issuance of the federal wagеring tax stamp, established the fact of defendant’s partnership in the operation of the basebаll pool we do not reach the Fifth Amendment constitutional issue defendant seeks to tender. No substantial right of the defendant is involved where, as here, the disclosure complained of was merely cumulative of other competent evidence and did not, even if erroneously admitted,
1
prejudice defend
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ant’s right to a fair trial, рarticularly in the absence of a jury. Rule 52(a), Federal Rules of Criminal Procedure (18 U.S.C.A.); Butler v. United States, 7 Cir.,
The judgment order appealed from is affirmed.
Affirmed.
Notes
. We dо not infer that the admission of evidence disclosed by the compulsion of §§ 4411 and 4412 is precluded by the Fifth Amendment privilege. We merely indicate that any reappraisal of United States v. Kahriger,