Full opinion text
CHRISTENBERRY, District Judge. In this memorandum opinion the court rules on all pretrial motions thus far filed by these 14 defendants who were charged on December 1, 1971, in a 29-page indictment consisting of one conspiracy count and 15 substantive counts alleging violations of Title 18 U.S.C. §§ 371,1952,1955, and 2. Although defendants have filed slightly more than a hundred separate motions, generieally there are far fewer and treatment here will be by generic category with all motions denied except where expressly granted. The Setting Count I charges all defendants with combining, conspiring, confederating and agreeing together and with each other to violate 18 U.S.C. § 1952 which makes it unlawful for a person to use interstate commerce with the intent to promote and facilitate an unlawful activity and thereafter to perform or attempt to perform acts to promote and facilitate this unlawful activity, all in violation of 18 U.S.C. §§ 371 and 2. Twenty-seven overt acts are alleged in furtherance of the conspiracy which is alleged to have existed from on or before December 2,1966, until the defendants were charged on June 30, 1971. The definition of an “unlawful activity” includes a business enterprise involving gambling in violation of the law of the state in which the gambling offense is committed. The conspiracy described in count I alleges that the Bally Manufacturing Corporation (hereafter Bally) and its president, William T. O’Donnell (hereafter O’Donnell), of Chicago, Illinois, would manufacture and cause to be manufactured machines designed primarily for gambling; that the gambling devices would be transported in interstate commerce from the place of manufacture in Illinois to the other defendants in Louisiana; that the other defendants would engage in separate business enterprises consisting of the owning and placing of the gambling devices in public places for use by the general public; that all defendants knew that illegal gambling would be conducted on these machines in violation of Louisiana Revised Statutes § 14:90 (La.Crim.Code art. 90); that defendants Bally and O’Donnell would also instruct the other defendants in the repair and upkeep of the machines and would also furnish parts therefor when required; and that defendants would otherwise aid and abet each other in this allegedly illegal scheme. Counts II through IX are substantive in nature, each charging Bally, O’Donnell, Louis M. Boasberg, and at least one other defendant with a substantive violation of 18 U.S.C. §§ 1952 and 2 relative to a named business enterprise (different in each count), which enterprise is described as being an unlawful activity involving gambling on Bally “bingo” gambling-type pinball machines in violation of La.R.S. § 14:90. Counts X through XVI each charge Bally, O’Donnell, Boasberg, and at least one other defendant with a substantive violation of 18 U.S.C. §§ 1955 and 2. Essentially, section 1955 makes it unlawful for one to conduct, finance, manage, supervise, direct or own an illegal gambling business. Here it is alleged that the unlawful gambling was consummated with Bally “bingo” gambling-type pinball machines in violation of La.R.S. § 14:90 and that these gambling businesses (a separate business enterprise is described in each of counts X through XVI) had been in substantially continuous operation for more than 30 days and that each business had five or more persons involved in its conduct, management, financing, supervision, direction, and ownership. At the outset, it is noted that most of the defendants by motion have asked that they be allowed to adopt all motions of their codefendants and that they be permitted to file subsequent motions as deemed necessary. These perfunctory motions are granted and in the following discussion the court’s reference to “defendants” is meant to include all of the 14 defendants charged in this case. I. MOTIONS TO DISMISS THE INDICTMENT Alleged Federal and State Statutory Conflicts First the court will deal with defendants’ motion to dismiss the indictment on the ground that an erroneous view of the Louisiana anti-gambling statute, La.R.S. § 14:90, was presented to the grand jury by the government. This is a threshold question of no small importance as the “unlawful activity” proscribed by 18 U.S.C. §§ 1952 and 1955 is described in every count as arising from defendants’ violation of La.R.S. § 14:90. Both § 1952 and § 1955 are directed only at gambling enterprises which violate state law and thus it will be incumbent upon the government to prove that the defendants conspired to violate or violated Louisiana law. No other state law than La.R.S. § 14:90 is referred to in any count. Defendants argue at length that other Louisiana statutes, i. e., La.R.S. § 47:-375(E) and La.R.S. § 15:31, specifically regulate the use of pinball machines and provide that they are not unlawful gambling devices; that the government misinformed the grand jury as to the proper Louisiana law by portraying state law as proscribing merchandise and cash payoffs on Bally gambling-type pinball machines while, according to the defendants, only cash payoffs are illegal; that as a result of misinterpreting state law to the grand jury, the indictment is defective by charging the commission of acts both legal and illegal; and that the applicable federal statute is not 18 U.S.C. § 1952 (the “Travel Act”), but 15 U.S.C. §§ 1171-1178 (the “Gambling Devices Act of 1962”) which permits the importation of gambling-type pinball machines into a state if that state specifically allows such machines to become operative. As this argument goes, since Louisiana permits machines which pay off in merchandise, the proviso in 15 U.S.C. § 1172 governs and, accordingly, the indictment must fall for lack of the “illegal activity” essential to a charge brought under 18 U.S.C. § 1952 and § 1955. After careful study, the court is convinced that defendants’ motions for dismissal of counts I through IX of the indictment due to allegedly conflicting state and federal laws are without merit and must be denied. I find that La.R.S. § 14:90 proscribes gambling on gambling-type machines where payoffs are in merchandise or cash or both if the payoffs are determined by an element of chance. First, La.R.S. § 15:31 and § 47:375(E) are inapplicable to the machines allegedly involved in this indictment because for those state statutes to come into operation, the payoffs must be due to “the exercise of the skill of the operator or player,” La.R.S. § 47 :- 375(E) or occur “where there is an element of skill involved in the playing.” La.R.S. § 15:31(B). The indictment in describing the machines, however, states in count I, paragraph C. (1) that these machines were “designed and manufactured primarily for use in connection with gambling, and which when operated may entitle a person to receive, as a result of the application of an element of chance, any money or property.” Whether the government can sustain its burden of proof on this issue is a question of fact to be submitted to the jury; it does not present a basis for dismissing the indictment. The important point is that these allegedly gambling-type pinball machines do ostensibly at least, come within the prohibitory sweep of La.R.S. § 14:90. In Gandolfo v. Louisiana State Racing Commission, 227 La. 45, 78 So.2d 504 (1954), the Louisiana Supreme Court addressed itself to the state’s anti-gambling statutes. It held that the provision in the state constitution which provides that “[l]otteries and the sale of lottery tickets are prohibited in this State,” La. Const, art. 19, § 8, is self-executory and constitutes a prohibitory law on the subject of lotteries. Furthermore, the state supreme court noted that it is La.R.S. § 14:90 that attaches criminality to any activity involving the prohibited lotteries. That court, the highest in the state, then definitely brought pinball machines within the sweep of § 14:90 in the following statement: “Lottery has been defined as a scheme for the distribution of prizes by lot or chance. It is upon that theory that this court has held slot machines, pinball machines and bank nites [sic] lotteries within the meaning of certain state statutes and city ordinances. State v. Barbee, 1937, 187 La. 529, 175 So. 50; City of New Orleans v. Collins, 1900, 52 La.Ann. 973, 27 So. 532; State v. Lasselle, 1923,154 La. 168, 97 So. 389. ...” 227 La. at 59, 78 So.2d at 509. Concerning the alleged statutory conflict between 18 U.S.C. § 1952 and the Gambling Devices Act of 1962, 15 U.S.C. §§ 1171-1178, the court has examined these statutes, their histories, and their constructions, and finds that the indictment invokes the proper statutes for the type of unlawful activity described in the indictment. Defendants argue that the Gambling Devices Act is the exclusive criminal statute governing the interstate shipment of these Bally machines and that it is inapplicable because of one of its exempting provisos. The fallacy of this contention soon becomes apparent. The proscribed gambling device is described in 15 U.S.C. § 1171(a) (2) as: “any other machine or mechanical device . . . designed and manufactured primarily for use in connection with gambling, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property The next section, 15 U.S.C. § 1172, makes it unlawful to transport such a gambling device in interstate commerce with the important proviso “[t]hat it shall not be unlawful to transport in interstate . commerce any gambling device into any State in which the transported gambling device is specifically enumerated as lawful in a statute of that State.” This proviso can be summarily treated in that no Louisiana law, including La.R.S. § 15:31 and La.R.S. § 47:375, either specifically or impliedly legalizes gambling devices where the possibility of winning is “the result of the application of an element of chance.” 15 U.S.C. § 1171 (a) (2). In addition, there was no reason why the government should have had to charge the defendants with violating 15 U.S.C. § 1172 rather than 18 U.S.C. § 1952. The defendants’ claim that the former deals more specifically with the subject matter is not substantiated by a reading of the statutes, their legislative histories, or the indictment. Indeed, sections 1171-1178 of Title 15 appear to have been enacted to complement 18 U.S. C. § 1952. The one prohibits the interstate transportation of gambling devices and the other (18 U.S.C. § 1952) makes unlawful the use of facilities in interstate commerce with the intent to facilitate illegal gambling enterprises. Those counts in the present indictment charging violations of section 1952 do not merely charge defendants with knowingly transporting gambling devices in interstate commerce; rather it is alleged that such interstate transportation constituted a use of interstate commerce facilities with' the intent to facilitate the promotion of an unlawful activity defined to be a gambling business in contravention of this state’s criminal law. There is no conflict between 18 U.S.C. § 1952 and 15 U.S.C. § 1172; they are aimed at the eradication of the same type of activity, i, e., that aspect of organized crime that is nourished on illegal gambling profits. Because this court does not find that these Bally gambling-type pinball machines would be allowed in interstate commerce under any proviso of 15 U.S.C. § 1172, it is unnecessary to reach the question of whether the government could charge defendants under 18 U.S.C. § 1952 if they could not be charged under 15 U.S.C. § 1172. In the interest of clarity, however, the following quotation is taken as a fair and accurate statement of statutory construction with regard to 18 U.S.C. § 1952: “To combat wide and nefarious interstate racketeering the Congress has made certain combinations of acts unlawful: for instance, interstate travel with intent to promote an unlawful activity, plus, thereafter the performance of any act to facilitate the carrying on of such activity. It is not required that the travel be in itself a criminal act, nor that the subsequent act be itself, unlawful, if it does in truth facilitate the carrying on.” United States v. Azar, 243 F.Supp. 345, 350 (E.D.Mich.1964). Alleged Grand Jury Defects Defendants assail the validity of the indictment because of supposed defects involving the grand jury. These allegations include the following: prejudicial pre-indictment publicity with a request to examine the grand jurors individually ; failure of the government to obtain the concurrence of twelve or more grand jurors on any or all of the 16 counts in contravention of Rule 6(f) of the Federal Rules of Criminal Procedure; the presence of governmental attorneys in the grand jury room while the grand jury was deliberating and voting; and failure of the government to present any evidence to the grand jury to warrant the indictment. While not denying that the grand jury system can unfortunately be used with reckless disregard for a citizen’s rights when it is advised by a malicious and unethical prosecutor, there is not a scintilla of evidence to substantiate any of these defense allegations and it is my finding that this grand jury investigation which extended over a period of about four months was conducted in a proper and professional manner in all respects. After careful consideration of counsels’ memoranda, oral arguments, and exhibits, the motion to dismiss because of biased grand jurors is denied. It is not enough for the defendants to allege simply that prominent or massive publicity attended their case as it proceeded from the arrest of some of the defendants on June 30, 1971, until the indictment of all of them on December 1, 1971. In fact, there was no showing of such massive or prolonged publicity and barring specific evidence of actual prejudice among the grand jurors, of which the record is completely devoid, there will be no relief granted. Beck v. Washington, 369 U.S. 541, 545-555, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); United States v. Osborn, 350 F.2d 497, 506-507 (6th Cir. 1965), aff’d, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Estes v. United States, 335 F.2d 609, 613 (5th Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); United States v. Hoffa, 205 F.Supp. 710, 717 (S.D.Fla.1962), appeal dismissed, 309 F.2d 680 (5th Cir. 1962), cert. denied, 371 U.S. 892, 83 S.Ct. 188, 9 L.Ed.2d 125 (1962). The publicity that this case engendered in its pre-indictment stage was natural and inevitable. The government’s conduct, however, was strictly within the guidelines of this court’s standing order of September 19,1969, entitled “Rules Regarding ‘Free Press-Fair Trial.’ ” That is to say, there has been no indication that a member of the prosecution ever made a public extrajudicial statement that went beyond the public record or that went beyond the need to inform the public of the general nature of the case. The mere fact of pre-indictment publicity does not vitiate an indictment. The reason for the immediate attention of the public and the media to this case was that six of these codefendants (Boasberg, Callery, Elms, Lagarde, Nims, and Pierce) were arrested and charged simultaneously with the Orleans Parish District Attorney and two high-ranking police officers on June 30, 1971. Those three officials, however, were charged in a separate indictment along with six of the present defendants (named above) for conspiring to obstruct state or local law enforcement in violation of 18 U.S.C. § 1511. Additionally, the fact that the arrest on June 30, 1971, of some of the defendants in this case was pursuant to a detailed 113-page affidavit filed and signed by an Internal Revenue agent is not on its face a reason to find prejudicial pre-indictment or pretrial publicity. Likewise, the serialization of that public record in the local newspapers for several days does not present circumstances under which this court can act to grant relief to defendants. Certainly, the publicity for a short time was widespread and unfavorable to those six defendants and no doubt the affidavit was partially responsible. Nevertheless, because the institution of federal criminal proceedings against state and local officials often strikes sensitive public nerve chords, it appears to have been prudent of the government to initiate the unveiling of its investigation with an ample showing of evidence. The motion asking that the court hold an evidentiary hearing at which the defendants might examine individually members of the grand jury is denied summarily. This represents a blatant attempt at a fishing expedition as again movants have no specific or actual basis for such a request. This is not a challenge of a grand juror’s legal qualifications as provided for in Rule 6(b) (2) of the Federal Rules of Criminal Procedure, but an effort to establish evidence of prejudice where none is known to exist. Similarly, without any foundation for the request, defendants allege that the indictment was returned without the grand jury adhering to the Rule 6(f) requirement that “[a]n indictment may be found only upon the concurrence of 12 or more jurors.” This defense argument alleges that only the foreman felt that the true bill should be returned. Such a motion as this is handled simply by the Clerk of Court, pursuant to a court order, allowing the defendants to examine the “concurrence slip” filed in open court by the foreman and members of the grand jury with the indictment pursuant to Rule 6(c). This slip has already been made available for defendants’ examination and inspection. Recent authority for this procedure is found in United States v. Bullock, 448 F.2d 728 (5th Cir. 1971). Only if the concurrence slip record was not available would it be necessary to hold a hearing to show propriety by substituted proof. In accordance with the clear language of Rule 6(c) and its restatement in Bullock, supra, 448 F.2d at 729, the defense contention that the record must disclose that 12 or more grand jurors voted on and concurred in their finding as to each defendant on each count is unfounded. The statutory requirement is only that 12 or more grand jurors must concur in “the finding of every indictment.” This includes all counts and all defendants therein. Accordingly, as was stated in open court at the time of oral argument on April 13, 1972, these motions to dismiss the indictment are denied. The defense motion that seeks dismissal of the indictment on the ground that government attorneys were present with the grand jury while it was deliberating or voting in violation of Rule 6(d) is spurious and meritless. The basis for the motion is an affidavit by defense attorney Cecil M. Burglass, Jr. in which the affiant avers simply that “he believes that government attorneys and agents were present in the grand jury room while said jury was deliberating and voting on the indictment.” It is curious that an attorney would execute such an affidavit on a belief which has no factual foundation. In reply the United States Attorney has submitted an affidavit which states in part that “. . .no undue influence or improper tactics were executed by himself or any other governmental attorney, that the indictment was read, in its entirety, to the grand jury prior to deliberations, and that no one other than the jurors was in the grand jury room while the jurors were deliberating or voting on the indictment.” The unsubstantiated defense affidavit is legally insufficient and the motion is denied. United States v. Calise, 217 F.Supp. 705, 709-710 (S.D. N.Y.1962); United States v. Brumfield, 85 F.Supp. 696, 705 (W.D.La.1949). The allegation in a similar defense motion that avers that the grand jury had insufficient evidence on which to indict the defendants is also unsubstantiated and fails to surmount the presumption of validity that is accorded an indictment returned by “a legally constituted and unbiased grand jury.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956); Blumenfield v. United States, 284 F.2d 46 (8th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961) ; United States v. Nunan, 236 F.2d 576, 594 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957). Accordingly, all motions urging dismissal on this ground are denied. The same reasoning and the same authority dictate the denial of those defense motions, also speculative and conclusionary, which would have the court dismiss the indictment due to alleged coercion of the grand jury. This baseless allegation asserts that the presence of seven governmental attorneys in the grand jury room just prior to the commencement of deliberations had a coercive effect on the jurors and contributed to their return of the indictment. There being no basis in fact or in law for such a motion, it is denied. In summary, all motions urging that the indictment be quashed due to defects relating to the grand jury are hereby denied, as are all requests to examine the grand jury minutes or to examine the grand jurors individually or collectively whether in camera or in an open court hearing. Duplicity of the Conspiracy Count Here the court is concerned with those defense motions that contend that count I, charging all 14 defendants with conspiring to violate 18 U.S.C. §§ 371 and 2, is fatally defective because it encompasses more than one conspiracy. The government correctly takes the position that this is a question to be disposed of at trial because the indictment on its face charges only one conspiracy. Green v. United States, 332 F.2d 788 (5th Cir. 1964). If the evidence offered at trial produces a variance in proof (by showing multiple conspiracies) which affects “the substantia] rights of the parties,” then the defendants will be entitled to an acquittal on count I. United States v. Morado, 454 F.2d 167, 170 (5th Cir. 1972), quoting Kotteakos v. United States, 328 U.S. 750, 775, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Walker, 453 F.2d 1205, 1206 (5th Cir. 1972). At trial it will be incumbent upon the government to prove beyond a reasonable doubt that there was a single conspiracy and that “the illegal agreement in question [had] ‘a common end or single unified purpose.’ ” Morado, supra, 454 F.2d at 171. An instruction by the court to the jury at trial to this effect will be proper. In addition, cautionary instructions can prevent the possible dangers of transference of guilt by having the jury consider the evidence as to each defendant’s alleged role in the conspiracy and make findings as to each individual separately. As the Supreme Court stated in Kotteakos, supra, 328 U.S. at 776, 66 S.Ct. at 1253: “[E]xtraordinary precaution is required, not only that instructions shall not mislead, but that they shall scrupulously safeguard each defendant individually, as far as possible from loss of identity in the mass.” The fact that the alleged con-piracy covered a period of about four and a half years is of no consequence in distinguishing a single from a multiple conspiracy. “A single agreement to commit an offense, or even a number of offenses, does not become several conspiracies because the activity continues over a period of time.” United States v. Lloyd, 425 F.2d 711, 712 (5th Cir. 1970); accord United States v. Nasse, 432 F.2d 1293, 1297 (7th Cir. 1970). Accordingly, the defendants’ motions urging dismissal of count I due to duplicity are denied. Duplicity, Vagueness, and Other Attacks on Counts II-IX Defendants have moved to dismiss counts II through IX because of duplicity, vagueness, and failure to allege substantive crimes. Because these motions are similar in approach and because they are directed to the same group of counts, they will be treated here together. The gist of the duplicity and vagueness argument is that within the time period alleged in each count there were multiple uses of interstate commerce facilities so that it is impossible for defendants to know which instance the government is referring to in each count. A fortiori, as the argument goes, defendants cannot perceive what they must do in order to defend themselves properly against such open-ended and vague charges. Thus, because many unlawful uses of interstate commerce are encompassed within each count, and because of the vagueness problem which this automatically creates, defendants assert that dismissal is mandatory. To the contrary, there is ample authority for the drafting of counts such as these. United States v. Daley, 454 F.2d 505, 509 (1st Cir. 1972); United States v. Kelley, 395 F.2d 727 (2d Cir.), cert. denied, 393 U.S. 963, 89 S.Ct. 391, 21 L.Ed.2d 376 (1968); United States v. Cohen, 35 F.R.D. 227, 231-232 (N.D.Cal.1964), aff’d, 378 F.2d 751, 754 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967). As in the Cohen case, the offenses alleged in these counts contemplate a continuing course of conduct. This does not, however, suggest an adequate reason for dismissal; rather the solution is for the government to furnish sufficient information to defendants pursuant to either bills of particulars or Rule 16 pretrial discovery so that the specific instances of illegal conduct which the government expects to prove will be clearly illuminated. This the United States Attorney offered and agreed to do at the time of oral argument. The court also disagrees with the defense argument that counts II through IX must be dismissed for vagueness in violation of the Sixth Amendment and Rule 7(c) of the Federal Rules of Criminal Procedure. I find these counts to be properly drafted in that mention is made of all elements of the offense charged in each count (violations of 18 U.S.C. §§ 1952 and 2); defendants are adequately informed of their alleged transgressions and, hence, the preparatory steps necessary for their defense; and there is no possibility of their being again subjected to prosecution for the same offenses. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932). The motions that would have the court dismiss counts II through IX because of duplicity and vagueness must therefore be denied. Movants also erroneously assert that counts II through IX fail to charge any substantive offenses and that these counts are merely overt acts of the conspiracy charged in count I. Alternatively, and again mistakenly, it is argued that these counts constitute duplicate conspiracies. The court has already found that these counts do not suffer from vagueness and, following the same reasoning and authority, it is reiterated here that counts II through IX on their face properly set forth substantive allegations. It is a well-established criminal law precept that “the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes.” Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). Movants are charged in count I with conspiracy to violate 18 U.S.C. §§ 371 and 2. The essence of the alleged crime of conspiracy in count I is the agreement. “The essential elements of a conspiracy are an agreement by two or more persons to combine for an illegal purpose and an overt act by one member in furtherance of the agreement .” United States v. Lowry, 456 F.2d 341, 344 (5th Cir. 1972). In counts II through IX, on the other hand, the crime in each count is the alleged commission of certain proscribed acts with the requisite intent. Although it is possible for conspiracy and substantive charges to be void due to merger that possibility does not arise here. Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946). “Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. ... ‘If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.’ The agreement to do an unlawful act is even then distinct from the doing of the act.” Id. Accordingly, the motions to dismiss counts II through IX for failure to state substantive crimes or because they duplicate the conspiracy count or because they are overt acts of the conspiracy charged in count I are denied. Timeliness of Counts I-IX Defendants urge dismissal by the court under Rule 48(b), Federal Rules of Criminal Procedure, of counts I through IX because of prejudicial delay in returning the indictment. Alternatively, it is argued that dismissal is required due to expiration of the five-year statute of limitations provided for by 18 U.S.C. § 3282. Movants state that a Justice Department official was informed in 1963, that pinball machines, such as are involved in this case, would be shipped into Louisiana unless defendants were advised that such shipments were unlawful. Because, according to this allegation, no objections were made by the government in 1963, it is now contended that this prosecution is barred by oppressive and purposeful delay. This motion is denied because of movants’ failure to note the material differences between the Gambling Devices Act of 1962, 15 U.S.C. §§ 1171-1172, which is concerned only with the interstate shipments of certain type machines whereas defendants are charged, inter alia, with violation of the Travel Act, 18 U.S.C. § 1952, which proscribes the use of interstate commerce with the intent to promote and facilitate an unlawful activity and thereafter to perform or attempt to perform acts which would promote the unlawful activity. Finding no basis for the allegation of unnecessary delay under Rule 48(b), the alternative motion stating that the statute of limitations bars this prosecution is also denied as the rule in this Circuit is that “‘[a]ny delay occurring between commission of the offense and commencement of prosecution is controlled exclusively by the applicable Statute of Limitations.’ ” Oden v. United States, 410 F.2d 103, 104 (5th Cir.), cert. denied, 396 U.S. 839, 90 S.Ct. 100, 24 L.Ed.2d 90 (1969). In the indictment sub judice, the counts alleging violations of 18 U.S.C. § 1952 'cover a period of less than the five-year prescriptive period. Constitutionality of 18 U.S.C. § 1955 The defendants have moved to dismiss counts X through XVI of the indictment which allege violations of 18 U.S.C. § 1955 and § 2, on the ground that Title VIII, § 803 (codified at 18 U.S.C. § 1955) of the Organized Crime Control Act of 1970 (P.L. 91-452), 84 Stat. 937, is unconstitutional. Congress enacted section 1955 after finding “that illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof.” Organized Crime Control Act of 1970, § 801. Section 1955 (§ 803 of the Act) provides in pertinent part as follows: (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both. (b) As used in this section— (1) “illegal gambling business” means a gambling business which-— (i) is a violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. (2) “gambling” includes but is not limited to pool-selling, book-making, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein. (3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States. (c) If five or more persons conduct, finance, manage, supervise, direct, or own all or part of a gambling business and such business operates for two or more successive days, then, for the purpose of obtaining warrants for arrests, interceptions, and other searches and seizures, probable cause that the business receives gross revenue in excess of $2,000 in any single day shall be deemed to have been established. (d) * * * * (e) * * * * Defendants have advanced various alternative arguments as to why section 1955 must fall, none of which, however, have yet to survive judicial scrutiny. Essentially these challenges allege that the statute violates the Tenth Amendment, encroaches upon judicial functions by stating its findings of effect on commerce, exceeds the power granted to Congress under the commerce clause of the Constitution, denies the due process of law guaranteed by the Fifth Amendment, and is fatally vague in contravention of the Sixth Amendment. In recent months other federal courts have refuted most of these contentions in sustaining the constitutionality of section 1955. Some of these cases include the following: United States v. Riehl, 460 F.2d 454 (3d Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972); United States v. Palmer, 465 F. 2d 697 (6th Cir. 1972); United States v. Iannelli, 339 F.Supp. 171, 180 (W.D.Pa.1972); United States v. Sacco, 337 F.Supp. 521 (N.D.Cal.1972); United States v. Aquino, 336 F.Supp. 737 (E.D. Mich.1972); United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Harris, 332 F.Supp. 315 (N.D.Tex.1971). Because the views of this court accord harmoniously with those expressed in the above opinions, it is unnecessary here to trace laboriously the legislative history of the Organized Crime Control Act of 1970 or expostulate at length on the breadth of the congressional commerce power. I find section 1955 to be eminently constitutional. All of the defendants’ attacks on section 1955 are essentially resolved by a determination of whether Congress exceeded the constitutional grant of power to regulate commerce. U.S.Const, art. I, § 8, cl. 3. In this light it is seen that the Tenth Amendment and the commerce clause are mutually exclusive, that is, if Congress could legitimately utilize the commerce power to enact section 1955 to regulate certain gambling activities, then the Tenth Amendment does not come into play. United States v. Darby, 312 U.S. 100, 123-124, 61 S.Ct. 451, 85 L.Ed. 609 (1941). I find, based on the Supreme Court jurisprudence which accompanies the commerce power, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824), through Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), that section 1955 deals with a subject over which congressional regulation is proper. As the Court said in Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942): “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ ” After ample investigation and findings of its own, Congress made it a federal crime, via section 1955, to conduct, finance, manage, supervise, direct, or own a gambling business which exists in violation of the state’s law in which it is found. However, to have the requisite effect on interstate commerce and to come within the ambit of section 1955, the gambling business must be of a certain size and in substantially continuous operation. If these criteria are satisfied then it does not matter that the particular business is purely intrastate in its operation because by statutory definition, based on congressional inquiry, such a business as part of a class of activities involves a per se effect upon or use of interstate commerce or its facilities. The Supreme Court has repeatedly upheld the congressional prerogative to determine that an entire class of activities affects commerce; e. g., Maryland v. Wirtz, 392 U.S. 183, 192-193, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), and once that determination has been made by Congress, “[t]he only question for the courts is then whether the class is ‘within the reach of the federal power."’ Id. at 193, 88 S.Ct. at 2022. Accord, Perez, supra, 402 U.S. at 152-153, 91 S.Ct. 1357; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 247, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) ; Katzenbach v. McClung, 379 U.S. 294, 304, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). Consequently, it is unnecessary that the government show in every prosecution brought under section 1955 that there is an interstate commerce effect. That determination has been made by Congress and will not be disturbed here. What the government must show at trial, however, is that the elements of section 1955 are satisfied by these allegedly illegal gambling businesses; that is, there must be a violation of state law (La.R.S. § 14:90); the business must be conducted, financed, managed, or owned wholly or partially by five or more persons; and the business must have been or remain “in substantially continuous operation for a period in excess of thirty days or [have] a gross revenue of $2,000 in any single day.” To establish these elements of the crime is to establish all that is necessary to show that interstate commerce is affected. As the Court stated in Perez, supra, 402 U.S. at 154, 91 S.Ct. at 1361: “Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class. Maryland v. Wirtz, 392 U.S. 183, 193.” The Perez case is conceptually closely related to the instant ease inasmuch as there the Court sustained the constitutionality of a statute which regulated, on the basis of the commerce power, extortionate credit transactions (“loan sharking”) of a purely local nature. Like section 1955, the anti-loan sharking statute was passed to reduce the disasterous impact of organized crime on interstate commerce. The Court stated simply: “Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce.” Perez, supra, 402 U.S. at 154, 91 S.Ct. at 1361. That statute, again like section 1955, was preceded by voluminous hearings and studies, even though such particularized findings are not required before Congress may act. Id. 402 U.S. at 156, 91 S.Ct. 1357. Of course, what is required in order that the statute be upheld — and this leads to the Fifth Amendment challenge — is that there exists a rational basis for finding that illegal gambling affects interstate commerce and, if such a basis is found, that the means chosen to eradicate the evil be reasonable and appropriate. I find that this congressional finding was rational and that section 1955 constitutes a valid exercise of the power vested in Congress under the commerce clause. Similarly, the means chosen to combat the evil are carefully aimed at a particular, well-defined type of gambling activity. Schneider v. United States, supra; Sacco, supra, 337 F. Supp. at 526. On this basis I find the statute constitutional on its face and as applied to these defendants. In reaching this conclusion, the court does not accept defendants’ argument that section 1955 has an irrational basis or represents an unreasonable remedy because it seeks to regulate gambling only in states which prohibit gambling while allowing the same type of activity to persist in states which allow gambling. The rule is simply that a variation in state laws does not in any way nullify or render unreasonable a federal anti-gambling statute which incorporates state law. This court agrees with the other federal tribunals which have consistently found no Fifth Amendment violation on this basis. United States v. Schwartz, 398 F.2d 464, 467 (7th Cir. 1968), cert. denied, 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969); Spinelli v. United States, 382 F.2d 871, 890 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Turf Center, Inc. v. United States, 325 F.2d 793, 795-796 (9th Cir. 1963). These cases dealt with the Travel Act, 18 U.S.C. § 1952, but three other federal courts have reached the same conclusion in ruling on this question with regard to section 1955. Schneider, supra; Sacco, supra, 337 F.Supp. at 527; Aquino, supra, 336 F.Supp. at 740. It is further asserted that section 1955 unconstitutionally encroaches on a gambler’s right to travel from a state in which gambling is legal into an anti-gambling state without suffering a loss of his profession. This argument also has been advanced and refuted in cases involving 18 U.S.C. § 1952. Gilstrap v. United States, 389 F.2d 6, 8 (5th Cir.), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968) ; United States v. Corallo, 281 F.Supp. 24, 28 (S.D.N.Y.1968). Section 1955 prohibits a person from engaging in an illegal gambling business and any effect the statute has on interstate travel arises only if a person acts in contravention of the statute while traveling. Certainly there is no violation of section 1955 unless a person engages in the conduct or management of a certain well-defined gambling business. The constitutional right to travel is subordinated “to the right of Congress to regulate interstate commerce when the travel involves the use of an interstate facility for illicit purposes.” United States v. Gerhart, 275 F.Supp. 443, 451 (S.D.W.Va.1967). Vagueness and overbreadth in violation of the Fifth and Sixth Amendments are also advanced as reasons why section 1955 should be voided and the indictment dismissed. Except for the contention, advanced specifically by defendant John Elmo Pierce, concerning the proper meaning to be assigned the word “conduct” when read in conjunction with the statutory five-persons requirement, the court will not dwell on these arguments. In fact, a fair reading of the entire statute against the considerable backdrop of jurisprudence on statutory construction leaves no doubt that the statute on its face is a clear and definite statement of a law which Congress was empowered to enact. Section 1955 does not forbid “the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . . ” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Defendant Pierce argues resourcefully that even if the statute has facial validity it is, nevertheless, unconstitutional as applied to him. He contends that in order for his business to have the requisite five persons involved in the conduct, financing, management, supervision, direction, or ownership it is necessary to look to the owners of the establishments in which his pinball machines are located, that is, the “location owners.” I find that the inclusion of the location owners as persons assisting in the conduct or supervision of the business does not place an unconstitutional stress or strain on section 1955. As the Sixth Circuit Court of Appeals stated in United States v. Palmer, 465 F.2d 697 p. 699 (6th Cir. 1972): “Appellants’ other contentions are equally without merit. They urge that the five persons engaged in their business were employees and could not be included among those who ‘conduct, finance, manage, supervise, direct or own all or part of such business . ’ However the Senate Committee Report on the Act specifically states that the term ‘conduct’ refers to both ‘high level bosses and street level employees.’ ” To sustain defendant Pierce’s argument would create an illogical, uncalled for loophole in the enforcement of section 1955. It would mean that the owner of an illicit gambling business could insulate himself from the reach of this statute by simply having less than five persons working solely for the gambling business while, simultaneously, he might have innumerable location owners to accommodate and pay off on his many gambling machines. As defendant Pierce concedes, a synonym for “conduct” is “carrying on,” and it is the government’s argument that evidence to be offered at trial will show that the location owners actively participated in the carrying on of Pierce’s allegedly illegal gambling business. The government claims that the location owners, although primarily in the retail liquor business, were integral to the conduct of the gambling businesses in that they would allegedly promote and encourage illegal gambling, pay off all winnings on the machines, receive reimbursement of such payoffs from a defendant-machine owner or his representative, and, finally, receive a percentage of the profits. This is a traditional modus operandi for organized crime of all types. The five-person requirement clearly encompasses location owners although, of course, it is for the government to prove the alleged connection and relationship between machine owner and location owner at trial. This motion, like all other motions to dismiss the indictment due to the unconstitutionality of 18 U.S.C. § 1955, is denied. Sufficiency of Counts X-XVI For the following reasons movants seek the dismissal of counts X through XVI: failure to allege in each count all elements of the allegedly violated state law (La.R.S. § 14:90); failure to describe the manner in which state law was violated; failure to describe in detail defendants' unlawful activities; failure to name the individuals who constituted the five-persons requirement of 18 U.S.C. § 1955; and failure to present evidence to the grand jury that five persons were involved in the allegedly illegal gambling businesses. There being no legal substance to any of these contentions, all motions contesting the technical validity of counts X through XVI are denied. A comparison of these counts with 18 U.S.C. §§ 1955 and 2 indicates that all elements of the offenses are properly set forth and that the relevant state law is adequately alleged. Lastly, the court finds that these counts contain sufficient information to apprise defendants of what is necessary for their defense and that a judgment resulting from this prosecution will bar any subsequent attempt to prosecute defendants for the same offenses. United States v. Debrow, supra; Hagner v. United States, supra. Under these standards of sufficiency the counts are properly drawn. On this same basis the fact that the indictment does not name the five persons necessary for a charge under section 1955 is of no moment; such evidentiary details are not properly included in an indictment. Rule 7(c) specifies that the indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” This and the other requirements of Rule 7(c) were fulfilled. Compare United States v. Anzelmo, 319 F.Supp. 1106, 1120-1121 (E.D.La.1970). The allegation that the grand jury was not presented with evidence of five-man operations is just as baseless as were the similar attacks made on the indictment in general due to' supposed grand jury defects. See page 422 supra. For the same reasons this motion is denied. Miscellaneous Motions to Dismiss The motion to dismiss the indictment due to misjoinder of counts and misjoinder of parties is denied. Even if the vice of misjoinder should be found to exist, dismissal is simply not the remedy. United States v. Goodman, 285 F.2d 378, 379 (5th Cir. 1960), cert. denied, 366 U.S. 930, 81 S.Ct. 1651, 6 L. Ed.2d 389 (1961). Consideration of alleged misjoinder awaits that part of this memorandum which will deal with severance and joinder. Defendants’ sole remaining motion to dismiss alleges that those counts specifying violations of 18 U.S.C. § 1955 are vitiated under the constitutional doctrine which prohibits ex post facto laws. Title 18 U.S.C. § 1955 or section 803 of the Organized Crime Control Act of 1970 became effective on October 15, 1970. Each of counts X through XVI charge violations of section 1955 “from on and before October 15, 1970 through” a specified date in excess of thirty days. There is no question but that federal criminal liability attaches only from October 15, 1970; nevertheless, it is permissible to refer in the indictment to a time prior to the date on which section 1955 became operative in order to demonstrate an extant and continuing gambling business. United States v. Kubacki, 237 F.Supp. 638, 643 (E.D.Pa.1965). Accordingly, the motion to dismiss on the ground that section 1955 as applied is an ex post facto law is denied. The jury will, of course, be instructed that no criminal liability under section 1955 can attach until on and after October 15, 1970. /II. MOTIONS TO COMPEL ELECTION AND FOR SEVERANCE Defendants ask that the court order the government to elect between proceeding on 18 U.S.C. § 1952 (counts II through IX) or 18 U.S.C. § 1955 (counts X through XVI) on the basis that separate prosecutions of the same-gambling businesses under these two statutes cannot be sustained. The black-letter law which is dispositive of this motion states: “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); accord, United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 97 L.Ed. 61 (1952). The proof required for these defendants to be validly convicted under section 1952 is not the same as the proof necessary to convict under section 1955. The obvious differences in proof encompass, inter alia,, the use of interstate commerce facilities under section 1952 and the five-persons or size requirement of section 1955. Also, because the specific purposes of the statutes differ and because nowhere does there appear any evidence of a congressional intent that the statutes should not be used simultaneously against the same gambling businesses, there is no basis for requiring an election and, accordingly, the motion must be denied. Movants also seek a severance of counts and defendants, alleging misjoinder under Rule 8 and prejudicial joinder under Rule 14, Federal Rules of Criminal Procedure. Dealing first with the alleged misjoinder under Rule 8, the test to be applied is found in paragraph (b) which allows within one indictment (as well as within a single count but not necessarily) the naming of two or more defendants “ . . .if they are alleged to have participated in the same act or transaction or in the same-series of acts or transactions constituting an offense or offenses.” This differs from the standard of Rule 8(a), allowing joinder of offenses of “the same or similar character” which is inapplicable here because of the presence of multiple defendants. United States v. Roselli, 432 F.2d 879, 898 (9th Cir. 1970). Applying the test of Rule 8(b) this sixteen-count indictment is a model of the proper joinder of parties and offenses. Count I charges that all defendants participated in a single conspiracy to violate 18 U.S.C. § 1952. This initial conspiracy count is followed by eight counts alleging substantive violations of section 1952 which were committed pursuant to the conspiracy. That counts I through IX, therefore, comply with the series requirement of Rule 8(b) is manifestly clear. Gordon v. United States, 438 F.2d 858, 878 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971); King v. United States, 355 F.2d 700, 704 (1st Cir. 1966); United States v. Addonizio, 313 F.Supp. 486, 498 (D.N.J.1970), aff’d, 451 F.2d 49 (3d Cir. 1972). Similarly, Rule 8(b) presents no obstacle to counts X through XVI. Again, count I alleges that all defendants conspired to use interstate commerce with the intent to facilitate the carrying on of unlawful gambling businesses and thereafter performed acts to facilitate the carrying on of such enterprises. Counts X through XVI, alleging substantive violations of 18 U.S.C. § 1955, charge the same defendants, except Caracci and Difatta, as were charged in the count I conspiracy with unlawfully conducting illegal gambling businesses. It appears to be no coincidence that each allegedly illicit business named in count I is also named at least once in. counts X through XVI, except for the New Orleans Coin Machine Co. Thus, although not every defendant participated in every act constituting each joined offense, there is present the requisite series of acts constituting offenses which permits this joinder of defendants and offenses in one indictment. Roselli, supra, 432 F.2d at 899; Tillman v. United States, 406 F.2d 930, 934 (5th Cir. 1969). Finally, even if the indictment on its face did not show that all defendants allegedly participated in a series of acts constituting the offenses charged, as I am convinced a fair reading of it does, the government would nevertheless be permitted to establish such connexity via bills of particulars, Rule 16 pretrial discovery, and evidence to be put on at trial. See United States v. Florio, 315 F.Supp. 795, 797 (E.D.N.Y.1970). Alternatively, defendants seek a severance under Rule 14 due to prejudicial joinder of defendants and offenses. The determination of prejudice and the disposition of such a motion rests in the sound discretion of the trial judge. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Baggett, 455 F.2d 476, 477 (5th Cir. 1972); United States v. Bed-good, 453 F.2d 988, 991 (5th Cir. 1972) ; United States v. Blanchette, 453 F.2d 859 (5th Cir. 1972). At this time all defense allegations of prejudice due to joinder are speculative and without any substantial foundation on which the court would be warranted in granting relief. The court feels that the benefit to the efficient administration of criminal justice which a single trial affords far outweighs the risk of possible and unsubstantiated prejudice. Again, the court will rely on cautionary instructions where necessary to limit the evidence to the relevant defendants. United States v. Kelly, 349 F.2d 720, 756 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). This will not present a great problem, however, since the same evidence will largely determine the proof of all charges. Cf. Milam v. United States, 322 F.2d 104, 110 (5th Cir. 1963), cert. denied, 377 U.S. 911, 84 S.Ct. 1174, 12 L.Ed.2d 181 (1964); United States v. Wolfson, 294 F.Supp. 267, 275-276 (D.Del.1968); United States v. Bonanno, 177 F.Supp. 106, 113 (S.D.N.Y.1959), rev’d on other grounds sub nom. United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960). The defense contention that a severance is mandated by the well-known and often misunderstood case of De Luna v. United States, 308 F.2d 140 (5th Cir. 1962), is devoid of merit. In Gurleski v. United States, 405 F.2d 253, 264 (5th Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2127, 23 L.Ed.2d 765 (1969), the Fifth Circuit distinguished De Luna as follows: “The principal case relied on [De Luna] involved a situation where the interest [sic] of the co-defendants were severely conflicting. The court noted the non-cooperation between attorneys for the co-defendants and the attempts by each defendant throughout the trial to shift culpability to the other. The evidence in the instant ease is to the contrary in that counsel for all defendants cooperated fully in urging the same objections and incorporating or joining common motions, pleas and points of errors. No defendant attempted to implicate only the other defendants. Thus, the telling consideration of De Luna is not present in this case.” Accord, United States v. Baggett, 455 F.2d 476, 477 (5th Cir. 1972); United States v. Wilson, 451 F.2d 209, 215 (5th Cir. 1971); United States v. Hyde, 448 F.2d 815, 831 (5th Cir. 1971); United States v. Sklaroff, 323 F.Supp. 296, 323 (S.D.Fla.1971). Because there is neither antagonism among these defendants nor any mutually exclusive theories of guilt De Luna is inapplicable, and the situation does not arise where it becomes the duty of counsel for a testifying defendant to comment on the failure of one or more codefendants to also testify. A pretrial order directing that those defendants who testify or their counsel shall not be permitted to comment on the failure of codefendants to do so will be proper. For the foregoing reasons all motions for a severance are denied. At this time the court also denies the premature motion of defendant Vincent Joseph Marcello who seeks to be severed due to an allegedly permanent state of ill health. III. MOTIONS TO SUPPRESS Defendants have moved for the suppression of all evidence obtained by the government pursuant to a subpoena duces tecum directed to the TAC Amusement Company on the basis that defendant Lagarde’s Fifth Amendment right against self-incrimination was violated thereby. This contention was previously and unsuccessfully raised when the subpoena was served on TAC initially during the grand jury investigation which resulted in this indictment. TAC, formerly a corporation but now (since September 1, 1967) a Louisiana partnership of which Lagarde is a partner, concedes that an incorporated enterprise, no matter how closely held, cannot assert the Fifth Amendment. Wilson v. United States, 221 U.S. 361, 382-383, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S. 43, 74-75, 26 S.Ct. 370, 50 L.Ed. 652 (1906). For the reasons given in United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), and more particularly in In re Mai Brothers Contracting Co., 444 F.2d 615 passim (3d Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 106, 30 L.Ed.2d 99 (1971), and United States v. Silverstein, 314 F. 2d 789, 791-792 (2d Cir.), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1031 (1963), the motion to suppress must be denied. It should be noted that the court adopts the well-reasoned rationale of the above-cited opinions with some slight hesitation in view of the possible abuse to Fifth and Ninth Amendment rights which can result from prosecutorial expediency and relatively unlimited investigatory power. No such abuse or expediency, however, has been shown in this case. Therefore, relief for the movants is unwarranted in view of the dominant theory that the Fifth Amendment safeguard is a personal right which does not extend to a business such as TAC. This result is buttressed by the entity characterization of a Louisiana partnership, Smith v. McMicken, 3 La.Ann. 319, 322 (1848); Comment, Formation and Nature of Partnership, 45 Tul.L.Rev. 331, 347 (1971), as well as a realistic view of modern business practices. Accordingly, the motion to suppress the evidence procured by the grand jury through a subpoena duces tecum directed to TAC is denied. An additional motion to suppress was filed by defendant Boasberg and directed toward all evidence obtained by agents of the Federal Bureau of Investigation in an interview on January 26, 1972. This interview occurred almost two months after the indictment was returned. Because the government has asserted that neither direct nor indirect information derived from the interview will be used in this prosecution, the motion is dismissed as moot. IV. DISCOVERY AND RELATED MOTIONS Jeneks Act The defendants’ motions for the pretrial production of the