William Spinelli v. United States

382 F.2d 871

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 12, 1967
• Docket: 18389
• Status: Published

Opinions

GIBSON, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Eastern District of Missouri convicting appellant of violating 18 U.S.C. § 1952 (Interstate travel in aid of racketeering) .

Appellant was tried before a jury on an indictment which charged that he had traveled in interstate commerce with intent to promote, manage, establish, carry on, and facilitate the promotion of an unlawful activity, to-wit: a business enterprise involving gambling in violation of the law of Missouri, § 563.360, R.S.Mo., 1959, V.A.M.S.; and did thereafter perform and attempt to perform acts to promote, manage, establish and carry on, and facilitate the promotion, management, establishment and carrying on of said unlawful activity. He was found guilty by the jury and sentenced by the Court to three years imprisonment and a $5,000.00 fine.

The appeal from that judgment was initially argued before a division of this Court consisting of Judges Van Oosterhout, Gibson, and Heaney. Contrary to the holding of the District Court, the panel agreed that appellant had standing to object to a search of an apartment room that he was not actually occupying, and the majority of that panel, in an opinion authored by Judge Heaney, ruled that the conviction of appellant should be reversed as evidence seized in that room was the result of an unconstitutional search. The majority felt that the affidavit in support of the search warrant did not establish probable cause. On this point Judge Gibson dissented. The numerous other points of error alleged by appellant were not considered by the panel because of the dispositive nature of the majority holding on the search warrant issue.

Thereafter, the government petitioned the Court for a rehearing en banc. Owing to the importance of the question and the division of opinion on the panel, a rehearing en banc was ordered. At this point appellant contends that a rehearing violates his constitutional protection against double jeopardy. As the government cannot generally appeal actions by the trial court, appellant contends the government cannot “appeal” decisions reached by a division of the Court. Appellant cites no authority for this position and we are not persuaded by his argument.

It is true that the government has no right to appeal in criminal cases unless specifically authorized by statute. Umbriaco v. United States, 258 F.2d 625 (9 Cir. 1958); 24 C.J.S. Criminal Law § 1659. However, this prohibition arises out of the common law and is not necessarily encompassed by the constitutional prohibition. For, as we see, 18 U.S.C. § 3731 specifically authorizes government appeals in some instances, and the exercise of this right of appeal does not necessarily violate a criminal defendant’s right against double jeopardy. United States v. Bitty, 208 U.S. 393, 28 S.Ct. 396, 52 L.Ed. 543 (1908). See, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) in which the government secured review of an adverse Court of Appeals decision.

However, we need not pursue the matter of constitutionality of government appeals in that an appellate court’s reconsideration of its own position on a question of law, is far different from an appeal from a final decision of a trial court. As long as this Court has jurisdiction over the cause, it has the express authority under Title 28, U.S.C. § 46 and § 2106 and Court Rule 15 to rehear and, if necessary, modify its decisions. Ulime v. Ulime, 92 U.S.App.D.C. 281, 205 F.2d 870 (1953); 14A Cyclopedia of Federal Procedure, § 68.123 (3rd Ed., 1965 Rev. Vol.); 36 C.J.S. Federal Courts § 301 (31).

This Court retains jurisdiction over a cause at least until a mandate is issued in accordance with a majority opinion. Since no mandate has issued in this case, the opinion of the panel was interlocutory and the Court retains the jurisdiction necessary to question and change any tentative decisions of the Court without subjecting appellant to any form of additional jeopardy.

Obviously, an appellate court’s reconsideration of its legal opinion is completely unlike requiring a criminal defendant to stand trial a second time on a factual issue after once being acquitted. See, Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Consequently, it has been held by the Supreme Court that even though an appellant’s conviction has been ordered reversed by a Court of Appeals, the Court of Appeals still retains the power to amend or revise that reversal order upon the rehearing of the action, and its reconsideration does not subject the criminal defendant to double jeopardy. Forman v. United States, 361 U.S. 416, 425-426, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). This Court has jurisdiction to rehear the case and alter its judgment thereon without infringing upon appellant’s constitutional rights. 12 Cyclopedia of Federal Procedure, § 51.178 (3rd Ed., 1965 Rev. Vol.).

A large number of questions on this appeal revolve around the search warrant used to uncover the incriminating evidence of gambling. Among these questions are: appellant’s standing to question its validity, the sufficiency of the information before the issuing magistrate, the propriety of its execution, the failure to specify some of the evidence that was seized.

After lengthy surveillance of appellant the F.B.I. sought an arrest warrant and a search warrant. The affidavit in support of the search warrant was made before a United States Commissioner in St. Louis, Missouri, on August 18, 1965 and was signed by a Special Agent of the F.B.I. It related that the affiant or other agents of the F.B.I. observed appellant driving his automobile onto the eastern approaches of bridges leading from East St. Louis, Illinois to St. Louis, Missouri on four occasions in 1965; August 6, 11:44 a. m.; August 11, 11:16 a. m.; August 12, 12:07 p. m.; August 13, 11:08 a. m. He was observed driving off of the western end of Eads Bridge in St. Louis, Missouri on two of these occasions: August 11 and August 13.

The affiant further related that appellant had been observed by federal agents driving the car into a parking area used by residents of the Chieftain Manor Apartments at 1108 Indian Circle Drive in St. Louis, Missouri, on August 11, 4:40 p. m.; August 12, 3:46 p. m.; August 14, 3:45 p. m.; and August 16, 3:22 p. m. On August 12 appellant was observed entering the front entrance of the Chieftain Manor Apartments. On August 13 appellant was observed entering the southwest corner apartment on the second floor designated as Apartment F. On August 16, after parking his car in the lot appellant was observed walking toward the apartment building.

After this detailed recitation of appellant’s movements the affidavit went on to state:

“The records of the Southwestern Bell Telephone Company reflect that there are two telephones * * * (in apartment F) under the name of Grace P. Hagen * * *. The numbers * * * are WYdown 4-0029 and WYdown 4-0136.”

“William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.”

“The Federal Bureau of Investigation has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers of WYdown 4-0029 and WYdown 4-0136.”

On the basis of this information the Commissioner issued a warrant for the search of Apartment F of the Chieftain Manor Apartments. No oral testimony was taken.

Armed with the warrant the federal agents went directly to the apartment building and stationed themselves in an apartment across the hall from Apartment F. After a two hour and ten minute wait, the appellant emerged from Apartment F into the hall and was served with an arrest warrant. At the same time he was served with the warrant to search the apartment. A key found on his person was used to open the apartment door. A number of agents searched the premises, while others took appellant to police headquarters. The search uncovered various items of gambling paraphernalia which were introduced against appellant and were considered as items essential to appellant’s conviction.

A motion to suppress the evidence obtained in the search was timely made and overruled by the District Court on the ground that the appellant had failed to allege or show that he was legitimately upon the premises searched, and, therefore, lacked standing to object.

STANDING TO OBJECT

We feel the trial court did not apply the existing law and that defendant does have standing to object to the search of this apartment. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) the defendant was charged with violating federal narcotics statutes which permit conviction upon proof of possession of the narcotics. The Supreme Court, in overruling the trial court and the Court of Appeals, held that defendant, a guest in an apartment at the time it was searched, had standing under Rule 41(e) of the Fed. Rules of Criminal Procedure to question the validity of a search in which narcotics were seized.

To have standing to object to a search under Rule 41(e) the defendant must be the “person aggrieved” by the search. The Fourth Amendment to the Constitution is aimed at the protection of the privacy of citizens. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Therefore, to be aggrieved by a search in violation of this Amendment a person must be able to show that his privacy was invaded by the search. Prior to Jones, most of the courts applied strict doctrines of common law property rights and required for standing a showing of some very significant possessory interest in the premises. Jones, however, supplanted this line of authority and held that if the defendant could show that he was legally upon the premises and the fruits of the search were proposed to be used against him, his privacy had been invaded to the degree necessary to give him standing to object to the search.

In United States v. Miguel, 340 F.2d 812, 814 (n. 2) (2 Cir. 1965) cert. denied 382 U.S. 859, 86 S.Ct. 116, 15 L.Ed.2d 97, the court held that a lobby of a multitenant apartment was not within the protection of appellant’s dwelling, but significantly stated:

“Miguel did not own the apartment on the sixteenth floor. The tenant was Miss Almerio Lewis, who allowed appellant to stay there from time to time and keep his clothes there. This gave him standing under Rule 41(e) Fed.Rules of Cr.Proc. to object to a search of the apartment of Miss Lewis.”

In Foster v. United States, 281 F.2d 310 (8 Cir. 1960) we held a person using the back room of a tavern with the consent of the manager, who was his wife, might have standing to object to the search of that room even though he was absent and his wife consented to the search.

We believe Jones, Miguel, and Foster, clearly indicate that it is the right to use the premises that is a factor determinative of standing. If the defendant is legally occupying, or has been granted a right to occupy the premises, even though he is not physically present at the time of the search, then his privacy has been invaded by a search of these premises. As a person so aggrieved by the search he has a right to object, and to do so he need not allege his specific proprietary interest, i. e., owner, lessee, business invitee, etc. Nor is he required to take the stand to establish his particular interest.

In the case before us, appellant’s right to be on the premises is established by inference from the allegations in the indictment, the statements in the affidavit in support of the search warrant, and the testimony developed at the hearing to suppress. Appellant had been seen using the tenant’s parking lot. He was seen entering the apartment alone on August 13, and was seen entering or approaching the apartment building on at least two other occasions. On the day the search warrant was executed appellant was alone in the apartment for at least two hours. When he was arrested immediately upon emerging from the door of Apartment F, he had a key to this apartment on his person.

The government’s argument that appellant is not entitled to standing because he was arrested and served with the search warrant in the hall immediately outside the apartment is without merit. As we stated, the determinative factor in assessing appellant’s constitutional right to privacy, and consequently his standing to object to a search, is his legal right to use these premises. The fact that appellant was in the act of voluntarily leaving the apartment when served does not weaken his right to be on these premises. Appellant’s basic constitutional right of privacy cannot be circumvented by the expedient of withholding service of a warrant until the moment the accused is in the act of leaving the premises to be searched.

Consequently, we believe the evidence before the trial judge established that appellant had sufficient interest in the premises to be a “person aggrieved” by the search, and thus has standing to raise the question of the sufficiency of the showing of probable cause supporting the warrant.

PROBABLE CAUSE

The United States Commissioner in issuing the search warrant believed from the information in the affidavit that there was probable cause to believe the law was being violated on the described premises.

Our duty on this appeal is not to make our independent determination of probable cause. Our duty is solely limited to the determination of whether the information before the Commissioner was legally capable of persuading him, as a man of reasonable caution, that the laws of the United States were being violated with part of this violation consisting of an illegal act being committed on the described premises. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

If the information in the affidavit, in its totality, provided the Commissioner with a substantial basis to conclude that a gambling business was being conducted on the premises and the appellant was engaged in interstate travel in connection therewith, nothing more is required of us. The finding of the Commissioner must be sustained. Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Upon viewing all of the information in the affidavit we do not believe we can say, as a matter of law, that the conclusion reached by the Commissioner is without substantial basis and could not possibly be drawn by a “neutral and detached magistrate”. Thus the warrant must be upheld.

The affidavit, to establish an essential element of the federal crime, sets forth repeated observations of interstate travel. Four additional evidentiary facts tend to support the finding of the Commissioner that there is probable cause to believe illegal gambling activities were taking place on the described premises.

1. The affidavit set forth in detail appellant’s repeated visits at approximately the same time in the afternoon to an apartment that was not his home.

2. The affidavit set forth information received from the telephone company that this apartment visited by appellant had two telephones w;ith different numbers.

3. The affiant recited of his personal knowledge that appellant was a gambler, a bookmaker, and an associate of gamblers and bookmakers.

4. The affiant stated that the F.B.I. had been informed by a reliable informant that Spinelli was “operating a handbook and accepting wagers and disseminating wagering information by means of the telephones * *

We agree that if these individual pieces of information were viewed in isolation, each would probably not independently support a constitutional warrant. However, they should not be so viewed. When viewed in their totality, they together form a relatively composite picture of appellant visiting the described apartment for the purpose of conducting gambling activities. See the warrant approved in United States v. Whiting, 311 F.2d 191 (4 Cir. 1962), cert. denied 372 U.S. 935, 83 S.Ct. 882, 9 L.Ed.2d 766, and the arrest in Hernandez v. United States, 353 F.2d 624, 627-628 (9 Cir. 1965), cert. denied 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021.

As a series of seemingly innocuous bits of evidence can combine to form a web of circumstantial evidence sufficient to justify jury conviction, in the same manner independent facts can combine to form a sufficiently clear picture of a probable violation of the law to justify a magistrate in issuing a constitutional warrant. United States v. Pinkerman, 374 F.2d 988, 991 (4 Cir. 1967). See also, Christensen v. United States, 104 U.S.App.D.C. 35, 259 F.2d 192, 193 (1958); Hernandez v. United States, supra, 353 F.2d at page 628.

The repeated afternoon visits to an apartment away from one’s home, could well have many legal purposes. However, it is a slightly suspicious fact warranting some note, and it takes on added significance when coupled with other known factors. Pointing out the frequently visited apartment has two telephones adds a bit more to the suspicion. Though one may have numerous legal uses for two independent telephone lines in a private apartment they are somewhat unusual, and are suspicious to the degree that multiple telephones are a common characteristic of a gambling operation. When a person who frequently visits the apartment with the two telephones is known to be a gambler, a bookmaker and an associate of gamblers and bookmakers, vague suspicions begin to take form that gambling may be taking place in this apartment.

Finally, when the hearsay information is provided, coming from one sworn to be reliable, that the known gambler who visits the apartment with two phones is actually conducting gambling activities over these phones, setting forth the exact telephone numbers, we believe these established suspicions could validly ripen into a reasonable belief that a gambling business is being conducted on the premises. A magistrate who issues a warrant on the basis of this information is certainly not abusing the warrant process. Nor could it be said, as a matter of law, that he could not have made an independent determination of the issue. An independent determination of a magistrate has indeed been interposed between the citizen and the police. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

Of course, it could be argued that this evidence is a long way from certainty. We are, however, dealing not with certainty, but with probable cause, and:

“In dealing with probable cause * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

Probable cause is more than suspicion, but it is far less than the evidence sufficient to justify the conviction. Locke v. United States, 7 Cranch 339, 3 L.Ed. 364 (1819). In fact, the evidence in support of a warrant may consist entirely of hearsay or otherwise incompetent evidence. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Hodgdon v. United States, 365 F.2d 679, 684 (8 Cir. 1966); Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194, 197 (1962).

Indeed, even less evidence is needed for the probable cause justifying the issuance of a warrant than the probable cause necessary for an officer to act without a warrant. Aguilar v. State of Texas, supra; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 67, 92 L.Ed. 436 (1948). The exigencies of law enforcement demand that an applying officer need not prove, in a full-blown plenary hearing, that the suspect has, beyond a reasonable doubt, committed a violation of the law. He need only demonstrate a probability. We are dealing herein with a threshold of proof using layman’s terms that is more than suspicion but is obviously far less than certainty.

Relying primarily upon Aguilar v. State of Texas, supra, appellant argues that the hearsay statement from the informer, as the core of this affidavit, cannot support the finding of probable cause. We think not. It is well established that informer statements may serve as the basis for probable cause if the statements are “reasonably corroborated by other matters” brought to the attention of the magistrate. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Rosencranz v. United States, 356 F.2d 310, 314 (1 Cir. 1967); Hodgdon v. United States, 365 F.2d 679 (8 Cir. 1966).

In the recent case of McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (March 20, 1967), an informant told police officers that McCray would be on a given street corner at a particular time and that he would be in the possession of narcotics. At the appointed time McCray appeared at the designated corner and was pointed out to the officers by the informant. The officers arrested McCray without a warrant and discovered the narcotics. The majority of the Supreme Court held that the fact McCray was where the informant said he would be was sufficient circumstance underlying the informant’s information to give the officers the probable cause necessary to make a constitutional arrest.

Very similarly in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327 (1959), the police were given a description of a man they were told would be carrying narcotics. When the officers went to the appointed place at the appointed time they recognized petitioner by the description given them by the informant. With nothing more they arrested appellant without a warrant and subjected him to a search. The Supreme Court determined that the officers had the necessary probable cause when the informer’s reliability was verified by what they actually observed of the appellant’s presence and personal appearance.

The Court has consistently demanded a higher showing of probable cause when the officer is acting without a warrant than it would if the issuance of the warrant followed the detached consideration of an independent judicial officer. Yet we note that both of these Supreme Court cases involved arrests made without warrants, followed by searches uncovering incriminating evidence. And in each the only substantiation of the informer’s information was that the appellants were at a time and place specified by the informer (plus in Draper the accused corresponded to a description given by the informer). The personal observation by the officers in these eases, of course, established to a degree the basic reliability of the informer, but added no corroboration or underlying justification to the factual statement that the accuseds possessed narcotics. But regardless of the substantially higher standard of probable cause demanded of actions without warrants, these arrests were sanctioned by the Court. Certainly, the corroboration of the informers’ statement in these two cases is far less than the detail corroborative facts before us, which substantiate both the informer’s basic reliability and the accuracy of the factual statement that Spinelli was conducting gambling operations on the premises.

In the case before us, the informant, who was sworn to be reliable, stated that Spinelli was “operating a handbook and accepting wagers and disseminating wagering information by means of the telephones [numbered] WYdown 4-0029 and WYdown 4-0136.”

This information cannot be simply classified as a conclusion. It is a statement that entails no imprimatur of a legal concept to bring into being, nor does it require the analysis of an expert. It is a simple statement of fact, using direct and simple words that cannot be reduced to a lower level of inference. Of course, it would have been preferable if the informer had buttressed his statement with additional information as to how he acquired knowledge of these facts. But this shortcoming does not mean that his statement is anything other than a simple factual summary.

Furthermore, the underlying accuracy of this hearsay statement is corroborated by the information from the telephone company that the telephone numbers recited by the informer are the numbers actually in existence and installed in the apartment. As in McCray and Draper the reliability of the informer’s information is even further substantiated by the personal observations of the agents. They observed Spinelli entering the very apartment where the phones specified by the informant were located, and consequently where the illegal activity was, according to the informer’s information, supposedly taking place. Finally, the allegedly conclusionary information that Spinelli was gambling on these premises is substantiated, to a degree, by the fact of Spinelli’s repeated visits, the presence of the two telephones, and the personal knowledge of affiant that Spinelli was a gambler and an associate of gamblers. We believe these facts presented to the Commissioner are far stronger than those in McCray and Draper and that they combine to solidly confirm, support, verify and substantiate the accuracy and reliability of the informer’s statement.

The conclusion to be drawn from an analysis of these cases is clear. Applying a higher standard of probable cause than must be applied in the case before us, the Supreme Court has upheld in McCray and Draper official police action supported by far less factual justification. Consequently, unless that Court requires a higher degree of substantiation to a lower standard of probable cause, we must assume they would declare the warrant to be constitutional. In light of the holdings in McCray and Draper, if we were to strike down the warrant in the case before us we would be requiring a more exacting standard of probable cause when the officers present their information to a magistrate and act on the authority of a warrant issued by him than we would if the •officers acted on this information without securing a warrant. This is not and should not be the law.

Appellant contends that Aguilar v. State of Texas, supra, is to the contrary. We do not believe that it is. Aguilar is only a caveat to the general principles governing probable cause and is not a replacement of those principles. Aguilar was directed to the specific situation in which a warrant was based solely upon the hearsay conclusion of a third party informant, and the majority found that without elaboration of “underlying circumstances” this bare conclusion could not provide a magistrate with the substantial basis necessary for a finding of probable cause. However, there is nothing in Aguilar which holds that a hearsay conclusion has no probative value, and when coupled with other pieces of information that tend to substantiate the reliability of that conclusion, a valid warrant may not be issued. Miller v. Sigler, 353 F.2d 424 (8 Cir. 1965), cert. denied 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690. In fact, footnote 1 in Aguilar specifically stated:

“The record does not reveal, nor is it claimed, that any other information was brought to the attention of the [magistrate]. * * * if the fact and results of such a surveillance had been appropriately presented to the magistrate this would, of course, present an entirely different case.”

As other facts and circumstances were presented to the Commissioner in the case before us, we believe it presents “an entirely different ease” and is not controlled by Aguilar. See, Minovitz v. United States, 112 U.S.App.D.C. 21, 298 F.2d 682 (1962).

Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 43 (1966) does nothing to alter that position. The Court in Riggan, without opinion, struck down an affidavit which curtly recited that the application for a warrant was based upon, “ [p] ersonal observation of the premises and information from sources believed by the police to be reliable.” ¹ Certainly, this information in Riggan is little, if any, better than the bare conclusion condemned in Aguilar; and is far less than the detailed recital found in the affidavit before us. Nor do we believe that Gillespie v. United States, 368 F.2d 1 (8 Cir. 1966) is determinative. In that case we held that orally stating to a magistrate that the suspect had a wagering stamp and that affiant had “obtained information that he [the suspect] was currently in the gambling business”, was insufficient probable cause for a warrant to search his residence.

Riggan and Gillespie set forth, at most, two evidentiary elements. Riggan contained: (1) personal observation (without stating what was observed), and (2) informant’s information (without specifying the information). The Gillespie affiant stated: (1) Gillespie had a gambling stamp, and (2) an informant stated that Gillespie was currently in the gambling business (failing to set forth where the business was being conducted). However, in the case before us we have not two bare pieces of information, but four evidentiary facts, with each fact being explained in detail not even approximated in either Riggan or Gillespie.

Though we are convinced there was solid justification for the Commissioner’s action, even if we assume this to be a close question, the Commissioner’s finding is entitled to significant weight, United States v. Ramirez, 279 F.2d 712, 716 (2 Cir. 1960), cert. denied 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74, and in close cases the decisions should tip in favor of the warrant’s issuance. In so holding the Court in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) stated:

“If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. * * * Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”

We believe this is a positive indication of the Supreme Court’s unwillingness to further expand the requirements and technical burdens for a constitutional warrant and is certainly sound advice that should be heeded. In our view neither Aguilar or Riggan demand a reversal of this case. If we were to strike down the warrant now before us we would be taking a significant step beyond the specific demands of these cases and would be acting in direct derogation of the clear instructions in Ventresca.

If we were to demand further hyper-technical requirements we would approach the now discarded pitfalls of common law pleading in which the ritualistic recitation of a few essentially meaningless, but apparently “magical words”, made the difference because a case being dismissed on a procedural technicality or justice being dispensed upon the merits.

We believe the holdings in Aguilar and Gillespie coupled with the established law for determination of probable cause sufficiently protect the privacy of individuals from hastily conceived intrusions.

The Fourth Amendment was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions into the privacies of life under indiscriminate general authority. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (May 29,1967).

Certainly, we have no unjustified invasion into the privacies of Spinelli’s life under a general authority. This was no haphazard intrusion into Spinelli’s affairs. The agents meticulously observed his interstate travel and his attendance at the indicated scene of gambling operations, which they had investigated to the extent necessary to corroborate the information received from various sources.

There is no evidence in this case of an officious disregard of Spinelli’s personal constitutional rights of any regard of harassment of Spinelli. Those engaged in illegal activities do not and should not have any greater rights than law-abiding citizens. Law enforcement officials are charged with the duty and responsibility of investigating those believed of engaging in criminal activity and a search warrant is but a legal tool of enforcement. Its efficacy should not be eroded by super-technical requirements that cause two trials, one on the issue of proving guilt before obtaining admissible evidence by way of a search warrant — a procedural issue, and one on the issue of guilt. Probable cause protects the innocent and need not serve as a shield for the guilty.

We believe any significant increase in the demands already placed upon securing a valid warrant are unnecessary under the present law, unneeded for the protection of individual rights of privacy, and dangerous to effective law enforcement. We believe the warrant was validly issued.

EXECUTION OF THE WARRANT

After securing the search warrant from the United States Commissioner the federal officers went to the Chieftain Manor Apartments. They arrived at approximately 4:55 p. m. and stationed themselves in an apartment across the hall from the apartment to be searched. They waited until 7:05 p. m. when Spinelli was seen emerging from Apartment F. At this time Spinelli was arrested and Apartment F searched.

Appellant points to Rule 41(e) Fed.R.Crim.P., which demands that warrants “shall command the officer to search forthwith * * Appellant contends that the two hour, ten minute delay in the execution of the warrant was not a “search forthwith” as required by the rule and commanded by the warrant, and the evidence seized in the search should be suppressed.

We do not agree. Rule 41(c) and (d), Fed.R.Crim.P., provide the framework for the execution of warrants in which reasonable police latitude can be exercised. Though warrants are required to command execution “forthwith”, Rule 41(d) provides that “The warrant may be executed and returned only within ten days after its date.” We agree with appellant that this ten-day period is the maximum under the Rule, and the requirement of execution “forthwith”, according to the facts and circumstances of each case, may indeed require search and seizure in something less than this ten-day period. However, the rule carefully refuses to set down exactly what is meant by the term “forthwith”. Presumably this was left for the courts to determine on a case-by-ease basis. Consistent with this flexible approach we believe that a warrant is executed “forthwith” if it is executed within a reasonable time after its issuance, not exceeding ten days. What is a “reasonable time” must be determined by the individual circumstances of each case.

A warrant is issued upon allegation of presently existing facts, and as such does not allow execution at the leisure of the police, nor does it invest the police officers with the discretion to execute the warrant at any time within ten days believed by them to be the most advantageous. Mitchell v. United States, 103 U.S.App.D.C. 341, 258 F.2d 435 (1958) (concurring opinion).

A warrant is a court order requiring the police to perform a ministerial function. They must be allowed certain leeway in the performance of this duty, but likewise they must be required to diligently perform according to the court’s command. A lapse of up to ten days may be reasonable when the delay is caused by distance, traffic conditions, weather, inability to locate the person or premises to be searched, personal safety, etc. However, a delay of a few hours may be unreasonable if the police are not diligent in executing the warrant and the purpose of the delay was to prejudice the rights of a suspect.

Appellant points out that after receiving the warrant the police officers delayed execution for approximately two hours while the premises were kept under surveillance. This appellant contends was an unreasonable delay.

Certainly, at first glance, at least, the execution of a warrant on the date of issue within hours after the officers left the Commissioner’s office would seem to be execution “forthwith.” Neither the rule, nor the warrant require execution “immediately.” While unreasonable delay cannot be countenanced, still officers must be allowed a certain latitude of action when they are on the delicate and sometimes dangerous mission of executing warrants. In this case, had the officers knocked at the door the evidence of gambling might well have been flushed down the commode before the officers could have forced their way into the apartment. In light of the necessary latitude it is very doubtful that this short delay was unreasonable and thus constituted a failure to execute “forthwith” as required by the rule and the warrant.

However, the reasonableness of the officers’ conduct in this case and exactly how many hours or minutes a police officer is allowed to delay execution to the prejudice of a suspect we need not decide. To object to the failure of the police to “search forthwith” the complaining party must point to some definite legal prejudice attributable to this unjustified delay. The fact that the search uncovered prejudicial evidence does not invest standing unless the presence of the evidence is attributable to the delay. Unjustified attempts by the police to prejudice the suspect by delay in execution do not provide standing unless the police are successful in their efforts. Investigative technics of the police or hypothetical harms invest no standing to suppress evidence seized in an otherwise lawful search.

As we have upheld appellant’s standing to challenge the constitutionality of the warrant even though he was in the hall outside the apartment, and since appellant has demonstrated no othei; possible prejudice attributable to the two hour lapse, we do not believe appellant has any proper grounds to object to the short delay.

DESCRIPTION OF THE PROPERTY SEIZED

The warrant specified for seizure “bookmaking paraphernalia, scratch sheets, bet tabs, pay and collection sheets, bookmaking records, baseball schedules, books and records of bets received, accounts, bookmaker’s ledger sheets, two telephones.”

Among the items seized which appellant contends are not included in the above specified items are, an Underwood adding machine, a pencil sharpener, a stack of blank deposit tickets on the State Bank of Wellston, a G.E. Am-FM radio, $22.00 in currency, a pair of glasses, Timex watch, pads of graph paper, four pens, two pencils, lease of the premises, and five telephones.

All of this evidence would fall, we believe, within the broad category of “bookmaking paraphernalia” set forth in the warrant. As stated in the government’s brief, “Certain records are to be kept, calls to be made, computations to be determined, money to be dispensed, times to be ascertained, results to be received from various sporting engagements.” All of the seized items were instrumentalities of the various facets of the bookmaking business and were properly seized as “bookmaking paraphernalia.”

To the complaint that “bookmaking paraphernalia” is unconstitutionally vague, we must reply that law enforcement officials have practically no way of ascertaining in advance of a search exactly what sort of innocent, everyday materials and equipment utilized for gaming purposes might be in a private dwelling. The law cannot expect the impossible. When the circumstances of the crime make an exact description of the fruits and instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. The degree of specificity, thus, must vary with the circumstances and with the type of items to be seized. The specificity required for the seizure of goods whose identity is knowm, such as stolen goods, should not be demanded when officers are searching for such items as secreted gaming equipment, the identity of which cannot be specifically ascertained. Calo v. United States, 338 F.2d 793 (1 Cir. 1964); Nuckols v. United States, 69 U.S.App.D.C. 120, 99 F.2d 353 (1938), cert. denied 305 U.S. 626, 59 S.Ct. 89, 83 L.Ed. 401.

We believe a warrant describing the items to be seized simply as “bookmaking paraphernalia”, under the circumstances, describes with sufficient particularity the goods for which the police are searching. The items seized under the authority of this warrant, clearly being within the generic classification of “bookmaking paraphernalia”, were properly received in evidence.

DENIAL OF A PRELIMINARY HEARING

Appellant was arrested on August 18, 1965. He was released on bond the next day and his preliminary hearing set for September 3, 1965. Upon motion of the government his preliminary hearing was continued. On September 15, 1965 the grand jury returned an indictment against appellant. Because of this indictment appellant was never afforded a preliminary hearing before the Commissioner. Appellant contends that the indictment should be dismissed as it was tainted by the government’s willful avoidance of the preliminary hearing. We do not agree.

The right of indictment by grand jury is, of course, a constitutional protection afforded all persons accused of federal crimes. Standing alone this right could prove to be something of a handicap. Waiting for the relative slow procedure of grand jury indictment might require arrested individuals to spend long periods of time in jail on groundless charges. Rule 5(c), Fed.R.Crim.P. serves as a complement to the constitutionally necessary grand jury system. Though the preliminary hearing provided for in Rule 5(c) may be a practical tool for discovery by the accused, the only legal justification for its existence is to protect innocent accuseds from languishing in jail on totally baseless accusations. Therefore, before the accused may be held for grand jury presentment Rule 5(c) requires the government to justify its incarceration by proving in a preliminary hearing before a judicial officer that there is probable cause to believe the accused committed the charged offense. Barrett v. United States, 270 F.2d 772, 775 (8 Cir. 1959). If the grand jury returns a true bill prior to the time a preliminary hearing is held, the whole purpose and justification of the preliminary hearing has been satisfied. Vincent v. United States, 337 F.2d 891 (8 Cir. 1964), cert. denied 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281. Action by a grand jury in returning the indictment brings formal charges against the accused and thus supersedes the complaint procedure and eliminates the necessity of a preliminary hearing. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).

Appellant admits that the Commissioner has authority to grant continuances, but argues that to grant a continuance for the purpose of obtaining an indictment is contrary to the spirit of the rules. This very question was answered to the contrary in Byrnes v. United States, 327 F.2d 825, 834 (9 Cir. 1964), cert. denied 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739. That case held the reason behind the government’s request for a continuance was speculation. Even so, the grant of a week continuance even for the purpose of allowing grand jury indictment was not improper absent a showing of legal prejudice. In the same light, we do not see anything inherently inequitable with continuing a preliminary hearing for a short period of time to allow intervening grand jury action. Though appellant might well have enjoyed the discovery benefits that flow from a preliminary hearing, he has no absolute right to these benefits if the underlying purpose of the preliminary hearing is supplanted.

As appellant in the case before us was free on bail and the indictment was returned only twelve days after the first scheduled preliminary hearing, we believe the Commissioner was well within his discretionary rights in continuing the preliminary hearing. On this issue we need go no further.

THE INDICTMENT

Appellant charges that the indictment is laced with a multitude of defects. According to appellant 18 U.S.C. § 1952, on which the indictment is based, is so vague that it does not give adequate notice of the law and thus violates his constitutional right to due process under the Fifth Amendment. Every court faced with this argument has rejected it. The statute embraces terms of common understanding and describes a clear standard of conduct. Consequently, the statute on which this indictment is based is not unconstitutionally vague. Bass v. United States, 324 F.2d 168 (8 Cir. 1963); United States v. Zizzo, 338 F.2d 577 (7 Cir. 1964), cert. denied 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435; Turf Center, Inc. v. United States, 325 F.2d 793 (9 Cir. 1963); United States v. Smith, 209 F.Supp. 907 (E.D.Ill.1962).

Though the indictment makes its charge in one count and is framed in the language of 18 U.S.C. § 1952 appellant alleges that it violates Rule 7(c) Fed.R.Crim.P., which requires “plain, concise and definite written statement of the essential facts constituting the offense charged.” An indictment couched in the terms of the statute, as this one is, is usually considered to comply with the rule. Reynolds v. United States, 225 F.2d 123 (5 Cir. 1955), cert. denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801; Brown v. United States, 222 F.2d 293 (9 Cir. 1955).

An indictment is good if it informs the defendant of the offense with which he is charged with sufficient specificity to enable him to prepare his defense and protects him against future jeopardy. Rood v. United States, 340 F.2d 506 (8 Cir. 1965), cert. denied 381 U.S. 906, 85 S.Ct. 1452, 14 L.Ed.2d 287. We believe this indictment, framed in the terms of the statute, measures up to that standard. Turf Center, Inc. v. United States, 325 F.2d 793 (9 Cir. 1963); United States v. Teemer, 214 F.Supp. 952 (N.D.West Va. 1963).

In much the same vein appellant alleges that the trial court should have required the government to elect precisely under what provision of the statute appellant was being charged. According to appellant the indictment charges a multitude of sins and the government should elect as to whether appellant was promoting, or managing, or establishing or carrying on the unlawful activity designated. Rule 14, Fed.R. Crim.P., governing joinders, gives a District Court the power to grant the “relief justice requires”, but is framed in permissive, not mandatory language. The grant of relief requiring the government to narrow its charge or elect the precise segments of the statute on which it is relying is a matter resting in the sound discretion of the trial court, the exercise of which is not subject to review unless abused. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894). As we held, the indictment adequately informed the accused of the charges against him. The slight difficulty of preparing a defense to such broadly worded charges does not outweigh the difficulty and potential prejudice faced by the government in being forced to limit its presentations to a restricted area of proof. No abuse of discretion has been shown.

In an attempt to approach this problem from an alternate route, appellant moved that the government supply him with a bill of particulars pursuant to Rule 7(f) Fed.R.Crim.P. The excellent opinion of Judge (later Justice) Whittaker in United States v. Smith, 16 F.R.D. 372, 374-375 (W.D.Mo.1954), establishes the general principles in this regard. It is the proper office of a bill of particulars,

“ ‘to furnish to the defendant further information respecting the charge stated in the indictment when necessary to the preparation of his defense, and to avoid prejudicial surprise at the trial’, and when necessary for those purposes, is to be granted even though it requires ‘the furnishing of information which in other circumstances would not be required because evidentiary in nature,’ * *

This liberal policy was followed when the trial court granted partial relief to appellant by ordering the government to inform him of the location, dates, and method of operation of the alleged gambling activity. This, we believe, furnished appellant with the additional information necessary to prepare his defense and avoid prejudicial surprise.

The balance of appellant’s requests, however, were properly denied. A refused portion of appellant’s motion sought information as to the “exact nature and details of the manner in which” the promotion, management, establishment, carrying on, and facilitating the gambling activity was performed. As the government was under order to advise appellant of the necessary facts in connection with charge, he was properly informed.

On the other hand, the granting of appellant’s request would have the severely damaging effect of “freezing” the government’s evidence in advance of trial. See, 8 Moore’s Federal Practice, § 7.06 [1]. The denial of this request for supplementary evidence was not an abuse of the trial court’s broad discretion in this area. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927).

Appellant also desired to discover from the government exactly how the government believed § 563.360 of the Missouri Revised Statutes was violated. The text of the statute is, of course, available to appellant, and he was also informed as to the exact dates, location and alleged method of illegal activity. Requiring the government to specify exactly how it believed appellant violated this state statute would be to require the government to disclose either its legal theory of the case or furnish unnecessary evidentiary facts as to appellant’s method of operation. In either case this is not information normally securable by a bill of particulars, and thus the trial court did not abuse its discretion when the motion pertaining to this request was denied. United States v. Ansani, 240 F.2d 216 (7 Cir. 1957), cert. denied 353 U.S. 936, 77 Ct. 813, 1 L.Ed.2d 759; Kempe v. United States, 151 F.2d 680, 685 (8 Cir. 1945), cert. denied 331 U.S. 843, 67 S.Ct. 1534, 91 L.Ed. 1864.

Finally, appellant sought in his motion the names and addresses of other persons allegedly engaged in this gambling activity. This is a thinly veiled request for the identity of potential witnesses, and the government is not normally required to supply such information to the criminal defendant. The trial court’s denial of this request was well within its permissive powers. Bohn v. United States, 260 F.2d 773 (8 Cir. 1958), cert. denied 358 U.S. 931, 79 S.Ct. 320, 3 L.Ed.2d 304.

Appellant contends that the indictment did not charge a crime within the spirit or intent of § 1952, as he was, at most, a single small-time gambler not engaged in an interstate business enterprise. Section 1952 makes it a federal crime to travel in interstate commerce with the intent to promote unlawful activity and thereafter attempt or commit the unlawful act. Congress defined “illegal activity” to mean, among other things, “any business enterprise involving gambling * * * in violation of the laws of the State in which [it was] committed.” Other than requiring the unlawful activity, as it applies to gambling, it must be a “business enterprise.”

Congress made no attempt to differentiate the business enterprises of a national crime syndicate and a petty hoodlum. No attempt was made to establish a minimum number of individuals that had to be involved, nor was a necessary dollar amount placed upon the illegal activity. It is virtually impossible for us to judicially specify in any meaningful fashion how large an operation a racketeer must have before he comes within the spirit of the clear prohibitions of this section. As long as it is established that a defendant is engaged in a proscribed gambling activity as a “business enterprise”, we will make no attempt to draw a line between the “big time” operator, who is admittedly subject to the federal prohibitions, and the “small” operator, who, according to appellant, should remain immune from the demands of the law.

Though the statute was admittedly enacted to curb interstate racketeering, the purposes of the statute are well served by thwarting the small time interstate racketeer before he has a chance to expand his illegal activities. Therefore, if the government can establish the interstate travel with the requisite intent and the illegal “business enterprise” no attempt will be made by us to exempt the less prosperous enterprenuers from the operation of this statute.

The evidence indicates that Spinelli was not a casual offender engaging in a Friday night game of cards with some friends in Missouri. He was a racketeer committing regular and significant violations of the Missouri law. He made regular and repeated trips across the state line, and over a long period of time was involved in a very substantial gambling business. The prosecuting officals did not abuse their powers by bringing charges against Spinelli and the trial court properly sustained the validity of the charge.

Appellant has rather vaguely attacked the constitutionality of § 1952, on which the indictment is based, by simply listing without explanation the various constitutional provisions he believed this statute violates.

1. We have already held that the statute gives proper notice and is therefore not unconstitutionally vague.

2. There is no equal protection of law running against actions of the federal government. And the fact that a federal criminal statute is based in part upon conduct proscribed by state law does not violate due process simply because of variations in the law of the several states. Turf Center, Inc. v. United States, 325 F.2d 793 (9 Cir. 1963). See also, Clark Distilling Company v. Western Maryland Railway Company, 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1917).

3. The statute regulating interstate travel for the purpose of engaging or controlling illegal activity is within the interstate regulatory powers vested in the federal government, and therefore is not a usurpation of the powers reserved to the states by the Tenth Amendment. United States v. Zizzo, 338 F.2d 577 (7 Cir. 1964), cert. denied 381 U.S. 915, 85 S.Ct. 1530,14 L.Ed.2d 435; United States v. Kelley, 254 F.Supp. 9 (S.D. N.Y.1966); United States v. Ryan, 213 F.Supp. 763 (D.Colo.1963).

4. The substantive violation of this statute took place when appellant crossed into Missouri with the requisite intent and thereafter attempted or committed an illegal act in Missouri. The crime was, therefore, committed in Missouri. Appellant was tried in the United States District Court for the Eastern District of Missouri. Appellant’s allegation of a violation of his Sixth Amendment right to be tried in the district in which the crime was committed, has obviously not been violated.

5. As appellant has not alleged that he has been tried on this charge before, the allegation of double jeopardy has no present basis. As we have held that the statute and the indictment adequately state the nature of the proscribed conduct with which Spinelli is charged, he is fully protected against future jeopardy on these charges. He is further protected from repeated jeopardy by the fact that the allegation of violation of § 1952 is in the conjunctive. The general verdict thereon will bar any further prosecutions with respect to any of the particular allegations embraced in the broad wording of the charge. Turf Center. Inc. v. United States, supra.

6. Finally, we do not see, nor has appellant pointed out any critical relationship between the prohibitions of this statute and the First Amendment freedoms of assembly and speech. While protecting all forms of valid expression, this Amendment does not protect antisocial conduct which the government has a valid interest in proscribing. United States v. Smith, 209 F.Supp. 907 (E. D. Ill. 1962).

We believe the statute is constitutional and an indictment based thereon is valid.

POST ARREST STATEMENTS

Appellant was arrested at approximately 7:05 p. m. and was placed in the City Jail. The following morning he was brought before the United States Commissioner and in the presence of his attorney was advised of his constitutional rights. Bail was set by the Commissioner. Thereafter, while appellant was being processed for release he was asked by Deputy United States Marshal Whit-lock where he lived. Spinelli gave an Illinois address. Upon release he presented himself to F. B. I. Agent Bender and asked for the return of some keys. He indicated that one of the keys was to the “residence or the place where he was staying on the east side [Illinois].” Both of these incidents were related at trial and were introduced to prove appellant’s Illinois residence and consequently the interstate travel necessary for a federal crime. Appellant objects to this evidence on the basis of the decisions in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

Appellant was tried and convicted in March, 1966. Miranda v. State of Arizona was decided June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) decided that Miranda should have prospective application only. Thus, Miranda need play no part in the consideration of the case before us. Escobedo v. State of Illinois pre-dated Spinelli’s trial and its requirements would apply if applicable to the issue raised.

The exclusionary rule found in Escobedo, as in many other cases, is founded largely upon the proposition that the government must respect the constitutional rights of its citizens. To protect individual rights the evidence obtained in derogation thereof is not admissible in the courts. Therefore, for the exclusionary rule to apply herein, appellant need prove some unconstitutional actions by governmental officials.

In Escobedo the defendant was not brought before a magistrate or advised of his right to remain silent. Even though he specifically requested the advise of his attorney and his attorney was in the building attempting to see the defendant, the request for counsel was denied.

The actions of the governmental agents in the case before us can, in no way, be equated with the denial of counsel in the Escobedo ease. A short time after being presented to the Commissioner and advised of his rights in the presence of his attorney, Spinelli voluntarily gave an Illinois address to Deputy Marshal Whit-lock for the purpose of being released on bond. No request for advice or for counsel was made or denied. This request for administrative information necessary for release from custody is proper and is completely unlike and unrelated to the serious abuses found in Escobedo.

Furthermore, we do not believe this request for information violates appellant’s Fifth Amendment privilege against self-incrimination. Appellant was not required to ask for release on bond, but' if released the governmental officials have a right and duty to the public to know where appellant can be found. Appellant need not answer the questions put to him if he feels they might lead to his incrimination, but once he has decided to answer he may not retroactively claim that his privilege has been violated. Neither Escobedo, nor any other case of which we are aware, forbids the asking of questions simply because they could produce incriminating evidence.

Appellant argues that he was coerced into incriminating himself because his refusal to answer would have resulted in his being denied bail. Though we admit that appellant was faced with a difficult choice, it was a choice that necessarily had to be made. Address information prior to release on bond is an absolute necessity for the efficent administration of the bail system. When asked for this information the accused must weigh the competing circumstances and decide which course he should take.

In much the same way the accused must decide whether to testify at trial and subject himself to cross examination or remain silent. Simply because certain advantages are to be gained by waiving Fifth Amendment rights does not mean that their waiver was coerced. The advantage which flows as a consequence of the law must be distinguished from coercive promises or threats from individual police officers. If an accused decides as a matter of free will to furnish information necessary and relevant to obtain a release on bail, it does not follow as a matter of constitutional law that this information was coerced from him.

The second statement, the one given to Agent Bender, was given after Spinelli had been released on bond. This information was volunteered and not the result of any interrogation. Furthermore, as appellant was free on bond the conversation did not take place while defendant was in the custody of the police. Escobedo simply has no application to this set of circumstances.

It is our conclusion that neither of the pieces of evidence were obtained in violation of appellant’s right to counsel or in derogation of his freedom from self-incrimination. See, United States v. Zizzo, 338 F.2d 577 (7 Cir. 1964) cert. denied 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435. As Spinelli's trial preceded the decision in Miranda v. State of Ari-‘ zona, we need not decide whether the positive duties placed upon arresting officers would affect the admissibility of the evidence herein.

ADMISSION OF EVIDENCE

The admission or rejection of offered evidence is a matter generally left largely within the discretion of the trial court. Cotton v. United States, 361 F.2d 673, 676, (8 Cir. 1966). We have viewed appellant’s two objections to the admission of evidence and feel neither warrants a finding by us that the trial court abused its discretion.

Appellant objected to expert testimony of an F. B. I. agent concerning the gambling paraphernalia seized from the apartment. After first being qualified as an expert on gambling the government witness identified, interpreted and explained to the jury the various exhibits and in the course of his testimony offered his opinion that these exhibits were used in the recording of wagers. Appellant contends this testimony usurped a duty of the jury.

An examination of the record indicates that gambling in the form practiced herein is a complex business using markers, codes and symbols. It is an area, we believe, little understood by, if not completely unintelligible to, the average juror. We believe explanation and interpretation of these exhibits to the jury is almost an absolute necessity if they are to reach an enlightened verdict. As such, we believe this is a proper area in which expertise may be exercised, and a properly qualified expert may offer his opinion on relevant matters concerning the operation of a gambling enterprise. United States v. Altiere, 343 F.2d 115, 119 (7 Cir. 1965), vacated on other grounds 382 U.S. 367, 86 S.Ct. 529, 15 L.Ed.2d 420; State v. Saussele, 265 S.W.2d 290, 296 (Mo.1954).

While appellant admits that evidence of criminal acts other than the one charged may be introduced to show intent or other element of the charged offense (See, United States v. Compton, 355 F.2d 872 (6 Cir. 1966), cert. denied 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed.2d 548) he contends that evidence of gambling which took place at a different location in St. Louis some seven months earlier is too remote to be admissible. We disagree.

Two important elements of the charged crime are travel with the necessary intent and the existence of an illegal gambling “business enterprise”. The prior connection of appellant to gambling activity conducted elsewhere tends to prove the lack of innocent purpose in his present venture. It further tends to prove that he was involved in a continuing “business enterprise” rather than a single incident of gambling.

The remoteness of the time and place are primarily matters going to the weight rather than the admissibility of the evidence. Only if the remoteness destroys the probative worth of the evidence, need it be rejected, and this is a matter left to the discretion of the trial court. King v. United States, 144 F.2d 729 (8 Cir. 1944), cert. denied 324 U.S. 854, 65 S.Ct.711, 89 L.Ed. 1413. We do not believe we can say as a matter of law that the passage of seven months places the prior activity at a time so remote that it destroys the probative value of the evidence to a degree that the trial court abused its discretion in admitting it. See, Medrano v. United States, 285 F.2d 23 (9 Cir. 1960), cert. denied 366 U.S. 968, 81 S.Ct. 1931, 6 L.Ed.2d 1258.

INSTRUCTION

Among other things § 563.360 of Missouri Revised Statutes, 1959 V.A.M.S. provides: “* * * [A]ny person who in this state records or registers a bet or wager or sells pools upon the results of any trial or contest * * * shall, on conviction, be adjudged guilty of a felony * *

The Court instructed the jury as follows:

“If you, the jury, find and believe from the evidence and beyond a reasonable doubt that the defandant did engage in accepting wagers on athletic contests and in furnishing odds or point spreads on athletic contests as a business enterprise, then I instruct you that such activity violates the law of Missouri, as set out in Section 563.360 of the Missouri Revised Statutes of 1959 [V.A.M.S.].”

Appellant alleges that this instruction is erroneous in that the Missouri law does not declare to be illegal “the furnishing of odds and point spreads on athletic contests.”

The statute does forbid the registering of bets and the selling of pools, and the instruction on “accepting wagers” correctly related the law of Missouri on this point. Further, a necessary included part of “accepting wagers” might well be the furnishing of odds and point spreads. Though not specifically forbidden by the wording of the statute this is but a facet and part of the broader prohibition against gambling.

Furthermore, the language appellant finds objectionable required the government to prove not only the acceptance of wagers, as this was all that was necessary to prove a state law violation, but required the government to prove that appellant had furnished odds and point spreads. Rather than expanding the statute as appellant charges, the government was required to assume an unnecessary burden of proof, which was mere surplusage that inured to the benefit of appellant.

SUFFICIENCY OF THE EVIDENCE

In determining sufficiency of evidence to support a verdict of guilty, the evidence must be viewed in a light most favorable to the government. We believe the evidence so viewed validly supports appellant’s conviction.

There are three basic elements to the federal crime charged:

1. Interstate travel;

2. Intent (to promote, direct, or manage illegal business);

3. Overt act (in attempting or participating in the illegal business).

Appellant admits the sufficiency of the evidence of his interstate travel, but contests the sufficiency of the evidence indicating intent at the time of travel or the overt act following the travel.

To prove intent the government properly introduced evidence of appellant’s involvement in a prior gambling operation which took place some seven months before the offense charged herein. The evidence of the present violation indicates that appellant periodically visited this apartment, and it indicates that gambling operations were obviously taking place therein. Though there is some evidence that appellant came into Missouri to visit his broker, certainly there is sufficient evidence allowing the jury to infer that the purpose of the trip was motivated by the gambling operation. This was an issue of fact resolved by the jury against appellant and it will not be disturbed by us.

Proof of the overt act is indicated by inference from proof of appellant’s numerous visits to this apartment and proof that this apartment was the scene of recent and comprehensive gambling activities. On the day of his arrest appellant had a key to the door of this apartment and was in the room alone with this-gambling paraphernalia for well over two hours. This evidence would certainly allow the jury to infer that after crossing into Missouri with the requisite intent, appellant attempted or committed acts in the promotion, management, establishment or carrying on of gambling activity in violation of Missouri law. All that needs to be proved is some overt act directed to the illegal gambling activity. It is not necessary that appellant actually be witnessed placing or receiving a wager. The evidence supports the conviction.

Judgment affirmed.

1 . This information was taken from Riggan v. Commonwealth, 206 Va. 499, 144 S.E. 2d 298, 299 (n. 1) (1965). There is nothing to indicate that the recital of facts in the opinion of Mr. Justice Clark, dissenting from the majority’s per curiam reversal was actually before the issuing magistrate.