Silbert v. United States
| Decision Date | 15 August 1968 |
| Docket Number | 19513,19504,Misc. No. 564,19514.,19512,19210,19505,19174,Civ. No. 18874,19209 |
| Parties | Philip SILBERT v. UNITED STATES of America. Philip SILBERT v. UNITED STATES of America, Stephen H. Sachs, United States Attorney, Paul R. Kramer, Assistant United States Attorney, and David Eagan, Acting Chief, Intelligence Division, Internal Revenue Service. Julius SALSBURY v. UNITED STATES of America, Stephen H. Sachs, United States Attorney, Paul R. Kramer, Assistant United States Attorney, Alan I. Baron, Assistant United States Attorney, and David Eagan, Acting Chief, Intelligence Division, Internal Revenue Service. Sigmund KASSAP aka John G. Doyle v. UNITED STATES of America, Stephen H. Sachs, United States Attorney, and David Eagan, Acting Chief, Intelligence Division, Internal Revenue Service. Jesse BONDROFF v. UNITED STATES of America, Stephen H. Sachs, United States Attorney, and David Eagan, Acting Chief, Intelligence Division, Internal Revenue Service. UNITED STATES of America v. $71,604.91 IN U. S. CURRENCY, 132 Checks in the Total Amount of $10,743.01 and One Clary Electric Adding Machine, Julius Salsbury, Intervening Claimant. UNITED STATES of America v. $11,300 IN U. S. CURRENCY and One Smith Corona Adding Machine, Sigmund Kassap aka John G. Doyle, Intervening Claimant. UNITED STATES of America v. $51,716.37 IN U. S. CURRENCY, $6,417.11 in Checks, One Victor Brown Adding Machine, Serial No. 1826-823, One Compto-Graph, Serial No. 700485 and One Torch & Tool Resistant Safe, TRTL-30, Burglary No. 14867, Spec UBI-Y-260 SMNA, Group U4 Cat No. 1-21616, Philip Silbert, Intervening Claimant. UNITED STATES of America v. $10,107 IN U. S. CURRENCY, Philip Silbert, Intervening Claimant. UNITED STATES of America v. $10,395.30 IN U. S. CURRENCY, $926.88 in Checks, One Remington-Rand Adding Machine, Model #41012, Ser. No. 150-563107; One Underwood-Olivetti Adding Machine, Ser. No. 716444 and One Underwood-Olivetti Adding Machine Model 600, Ser. No. 200421, Jesse Bondroff, Intervening Claimant. |
| Court | U.S. District Court — District of Maryland |
Norman P. Ramsey, H. Thomas Howell and Maurice T. Siegel, Baltimore, Md., for plaintiff Philip Silbert.
A. David Gomborov, David S. Harris and Louis Hoffman, Baltimore, Md., for the United States and for intervening claimant Julius Salsbury.
Arnold M. Weiner and Francis S. Brocato, Baltimore, Md., for the United States and for intervening claimants Sigmund Kassap and Jesse Bondroff.
Stephen H. Sachs, U.S. Atty., Paul R. Kramer, and Alan I. Baron, Asst. U.S. Attys., for the United States, and for plaintiffs in Civ. Nos. 19504, 19505, 19512, 19513 and 19514.
Each of these cases presents issues which relate to the Supreme Court's decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) and to this Court's earlier opinion in certain of these cases. 282 F.Supp. 635 (D.Md.1968).1 In that earlier opinion this Court reserved three issues each of which is considered in this opinion.
Bondroff in connection with alleged violations of 18 U.S.C. § 1952, and also in connection with alleged violations of 18 U.S.C. § 371, insofar as the latter may relate to the charges under 18 U.S.C. § 1952?
This Court will consider that question, on the merits, within the extraordinary circumstances exception set forth in Silbert v. United States, 275 F. Supp. 765, 766 (D.Md.1967). See Silbert, et al. v. United States, 282 F.Supp., supra, at 642, 645, n. 13. An examination of the affidavits and warrants in Silbert and Bondroff reveals that those warrants were issued by Chief Judge Thomsen of this Court in a pre-Marchetti-Grosso setting, and with regard to alleged violations of the Federal Wagering Tax laws, and 18 U.S.C. §§ 1952 and 371.2 The Silbert and Bondroff affidavits, presented to Judge Thomsen, on October 22, 1967, related almost entirely to the federal wagering tax laws and only in a tag-end way to 18 U.S.C. § 1952. Given Marchetti and Grosso and this Court's holding in Silbert, et al. v. United States, 282 F. Supp. supra, at 644, precluding prosecution of Silbert and Bondroff "for violation of the federal wagering tax laws in view of their respective assertions of the Fifth Amendment privilege," neither the Silbert nor the Bondroff warrants can survive the probable cause test with respect to prosecution under 18 U.S.C. § 1952 alone, or under that Section and 18 U.S.C. § 371 taken together.3 18 U.S.C. § 1952 involves the use of interstate or foreign facilities. There are telephone calls referred to in both the Silbert and Bondroff affidavits. However, they could have been local as well as interstate calls. The interstate facts are far too speculative to support probable cause for the issuance of warrants solely on the basis of alleged Section 1952 violations. The affidavits are not specific as to the mode of interstate facilities used, the manner by which such use facilitated gambling, and many other relevant details. Judge Thomsen acted on affidavits which were grounded on the assumption of the application of Kahriger and Lewis,4 that is, in a pre, not a post, Marchetti-Grosso atmosphere. The references in the Silbert and Bondroff affidavits and warrants to Section 1952 were clearly not framed to rest entirely on their own bottoms, but rather were clearly underpinned and supported by the extensive allegations of federal wagering tax law violations. That underpinning and support has since been destroyed by Marchetti and Grosso, leaving insufficient foundation for the Section 1952 (and related Section 371) alleged violations. Therefore, this Court orders that the Government may not use, or permit the use, directly or indirectly, of any evidence seized pursuant to the warrants in Silbert, in any federal or state prosecution of Silbert; and may not use, or permit the use, directly or indirectly, of any evidence seized pursuant to the warrant in Bondroff, in any federal or state prosecution of Bondroff.
This Court has earlier held, citing Goodman v. United States, 369 F.2d 166, 168 (9th Cir. 1966), that copies of all documents seized in the cases considered in 282 F.Supp. 635, supra, will be treated exactly the same as the originals of such documents, insofar as the person from whom any such originals were seized is concerned. But in that case, this Court left open for further argument and for later determination, the question of whether the Government should be permitted to make and retain copies of such documents for use against persons other than the person from whom the documents were seized. 282 F.Supp. supra, at 648 n. 16. It is contended that if the Government is permitted to use the fruits of the searches and seizures which offend Marchetti and Grosso, either against the person from whom such fruits were obtained, or against any third person or persons, the exercise of the Fifth Amendment privilege against self-incrimination by the person from whom the documents have been seized will be overburdened. It is said that the use of such copies against relatives, friends or associates of the person exercising the privilege will curtail the freedom which must surround that privilege. But the privilege, being personal, should not, in the judgment of this Court, be extended to enable, by its exercise, the person exercising it to be free of other than penalties to himself, or to protect anyone other than himself from prosecution—and this Court will not in these cases so extend it.
In Goodman v. United States, 369 F.2d 166, 168 (9th Cir. 1966), in which Judge Learned Hand's holding in United States v. Kraus, 270 F. 578 (S.D.N.Y.1921), was cited, it was alleged by the private litigant (at 167) that the government agents had obtained certain records by "a scheme of fraud and deception." No such allegations are made in any of these cases. Further, the question of retention of copies was approached in Goodman with regard to use against the aggrieved person whose Fourth Amendment rights had been offended—not, as in these cases, in connection with possible use against third persons.
In Bondroff and Kassap, no contention is made that the searches and seizures for alleged violations of the Federal Wagering Tax laws were violative of any constitutional rights, absent the decisions in Marchetti and Grosso, and while their predecessors, Kahriger and Lewis, held sway. In Bondroff and Kassap, as this Court held in Silbert et al. v. United States, supra, only Fifth Amendment challenges have been advanced. In Salsbury and Silbert, on the other hand, there are additionally what might be termed "pure" Fourth Amendment attacks, unrelated to Marchetti-Grosso or Kahriger-Lewis. Because those Fourth Amendment challenges may affect the issue of whether copies of documents seized in the Salsbury and Silbert raids can be retained by the Government and used against persons other than the person from whom they were seized, this Court will deal at this time with those Fourth Amendment attacks within the extraordinary circumstances exception reserved in Silbert v. United States, 275 F.Supp. 765, supra.
A careful review of the Salsbury affidavit and warrant is all that is necessary to reject the "pure" Fourth Amendment attack in that case. Therein, the probable cause test is clearly met. In Silbert, no "pure" Fourth Amendment challenge is directed toward the search at Harold's Club. However, in Silbert, a substantial question is presented as to whether there was probable cause for the issuance of the warrant to search Silbert's home on Janellen Drive, in a suburb of Baltimore.
On October 23, 1967, Judge Thomsen issued...
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