United States v. Viale

• Decision Date: 31 January 1963
• Docket Number: Docket 27719.,No. 166,166
• Citation: 312 F.2d 595
• Parties: The UNITED STATES of America, Appellee, v. Louis C. VIALE, Marino J. Faliero, Sr., Joseph S. Pinnavia, Louis A. Abbonando, Anthony F. Fino and Nicholas S. Longo, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

312 F.2d 595 (1963)

The UNITED STATES of America, Appellee, v. Louis C. VIALE, Marino J. Faliero, Sr., Joseph S. Pinnavia, Louis A. Abbonando, Anthony F. Fino and Nicholas S. Longo, Appellants.

No. 166, Docket 27719.

United States Court of Appeals Second Circuit.

Argued December 5, 1962.

Decided January 31, 1963.

COPYRIGHT MATERIAL OMITTED

Charles F. Crimi, Asst. U. S. Atty. (John T. Curtin, U. S. Atty. for Western District of New York, on the brief), for appellee.

Parrino & Cooper, Buffalo, N. Y., for defendants-appellants.

Before LUMBARD, Chief Judge, and SWAN and FRIENDLY, Circuit Judges.

SWAN, Circuit Judge.

Each of the six appellants was convicted after a jury trial on each count of a three count indictment filed June 2, 1961. Count 1 charged the defendants with conspiring to engage in the business of accepting wagers without having paid the special occupational tax required by 26 U.S.C. § 4411, in violation of 18 U.S.C. § 371. Count 2 charged commission of the substantive offense described in the conspiracy count, in violation of 26 U.S.C. § 7262. Count 3 charged failure to file tax returns as required by 26 U.S.C. § 4412, in violation of 26 U.S.C. § 7203.

The trial began March 13, 1962. On March 8, nine months after the indictment, the defendants moved to suppress evidence. The motion was denied after oral argument; and the defendants declined the opportunity offered them by the court to call witnesses. During the trial the defendants moved for judgment of acquittal after the Government rested. This was denied, and the defendants failed to renew their motion at the end of all the evidence. The Government contends that this precludes the appellants from questioning the sufficiency of the evidence to support the judgments of conviction, but as our later discussion will show the contention need be considered only with respect to Faliero. The sentences appealed from were imposed on June 25, 1962.¹ Notice of appeal was filed the following day.

The arrest and indictment of the six appellants was the result of an investigation by Special Agents of the Internal Revenue Service which began about the middle of March 1961 and culminated on May 12 of that year in a raid on adjoining houses in Buffalo, N. Y., known as 19 Allen Street and 111 N. Pearl Street, both of which were owned by Viale. The Agents conducting the raid had obtained search warrants for both houses, and a warrant for the arrest of Viale. They had no warrants for the arrest of the other appellants. From the undercover investigation conducted by Agent Willis, the Agents knew when they raided the premises that Viale and confederates, whose names they did not know, were engaging in the business of accepting wagers in a room on the second floor, rear, of 19 Allen Street. They knew also that no one at either 19 Allen Street or 111 N. Pearl Street had paid the tax or registered or filed a return from those addresses, as required by the applicable statutes. On raiding the premises, Pinnavia, Abbonando, Longo and Fino were found in the second floor room which was equipped with four telephones, and contained betting slips, racks and other paraphernalia appropriate for a wagering hideout. Faliero was not present; he entered the ground floor of 19 Allen Street some two hours later and upon entry was told by the Agents to go up to the second floor room. Each of these five appellants was interrogated separately by Agent Carbone in an adjoining room and was asked to empty his pockets. Each stated that he was there to visit a sick friend and refused to answer any further questions. Carbone testified that they emptied their pockets voluntarily and that each possessed a key to 19 Allen Street as well as other incriminating matter.

There is no contention by Viale that the warrants for the search of his premises and for his arrest were invalid. Indeed, his guilt was so clearly established by his prior dealings with Agent Willis that no discussion seems necessary. The judgment against Viale is affirmed.

Each of the other appellants claims that his arrest was unlawful and consequently the taking of his personal effects cannot be justified as incidental to a lawful arrest. Except as to Faliero, we hold the arrest valid and the incidental taking of personal effects justified.

The Government can point to no federal statute authorizing agents employed "for the administration and enforcement of the internal revenue laws", 26 U.S.C. § 7803(a), as these agents were, to make an arrest without a warrant, unless authority can be found in 26 U.S.C. § 7608, and frankly admits there is "some question" whether this section is applicable to the enforcement of the wagering tax laws. We hold that the section is not applicable.² But the inapplicability of § 7608 does not necessarily mean that the Agents had no authority to arrest without a warrant in the circumstances disclosed, since the section does not "change or in any way limit the then existing authority of internal revenue agents to make arrests or conduct searches as an incident thereto." United States v. Murphy, 3 Cir., 290 F.2d 573, 575.

United States v. Di Re, 332 U. S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210, makes clear that "in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity." Therefore we turn to the law of New York.³

Two provisions of the New York Code of Criminal Procedure give authority to arrest without a warrant. The first is § 177 relating to arrests by any "peace officer." In United States v. Perez, 2 Cir., 242 F.2d 867, cert. denied 354 U.S. 941, 77 S.Ct. 1405, 1 L.Ed. 2d 1539, it was held that § 177 authorized arrests in New York by agents of the Federal Bureau of Narcotics, apparently on the theory that this section applies to anyone who is a "law enforcement officer." 242 F.2d at 869. This decision, for which no authority was cited other than § 177 itself, is plainly wrong. Section 960 of the Code of Criminal Procedure states that "Unless when otherwise provided, the term `peace officer' signifies any one of the officers mentioned in section one hundred and fifty-four." And § 154 — which the court in Perez did not cite — contains a long list of "peace officers" which does not include agents of the Internal Revenue Service, or any other federal agents. Moreover, a New York court has held that a federal revenue agent is not a "peace officer" within § 154. People v. Chesnik, 123 Misc. 509, 205 N.Y.S. 146. We hereby expressly overrule Perez.

The second provision relied upon by the Government is § 183 of the N.Y. Code of Criminal Procedure. This gives a "private person" authority to arrest another "for a crime, committed or attempted in his presence," or "when the person arrested has committed a felony, although not in his presence."

Relying on Application of Fried, S. D.N.Y., 68 F.Supp. 961, the appellants contend that even if § 183 applies, it gives no authority to search the person arrested. In Fried, on facts very similar to those presented here, Judge Rifkind declared, at page 964, that "a private person could in no event make a search incidental to an arrest." This holding, however, is contrary to our decision in United States v. Park Avenue Pharmacy, 2 Cir., 56 F.2d 753, 756, and also to Coplon v. United States, 89 U.S. App.D.C. 103, 191 F.2d 749, 754, cert. denied 342 U.S. 926, 72 S.Ct. 363, 96 L. Ed. 690. The rationale that justifies searches incident to lawful arrests — as outlined in United States v. Rabinowitz, 339 U.S. 56, 60-61, 70 S.Ct. 430, 94 L. Ed. 653 — would seem to apply with equal force whether the arrest is made by an officer or a private citizen. If the arrests were valid under § 183, the searches incidental thereto were valid also.

As above noted, § 183 permits a private person to arrest a person who has committed a felony "although not in his presence." Although the indictment could have charged the offenses as felonies, 26 U.S.C. § 7201, it charged them as misdemeanors. Since there has thus been no judicial finding that these appellants in fact committed felonies, we shall assume that the validity of the arrests must be determined on the basis of the Agents' authority acting as private persons, to arrest for misdemeanors committed in their presence. Cf. United States v. Di Re, 332 U.S. at 591-592, 68 S.Ct. at 227.

Preliminarily, it is necessary to determine what is meant by "presence" and by "arrest," since the misdemeanor must be committed in the "presence"⁴ of the arrestor and the search of the arrestee must be incidental to his "arrest." It is now clear under New York law that one person may without a warrant justifiably arrest another who commits a misdemeanor in his "presence" only when the arrestor actually observed acts which were "in themselves sufficiently indicative of a crime being in the course of commission * * *"; unless this be true, the crime was "not committed in the arresting officer's presence * * *." People v. Moore, 11 N.Y.2d 271, 272, 273, 228 N.Y.S.2d 822, 823, 824, 183 N.E.2d 225, 226. See also People v. Esposito, 118 Misc. 867, 194 N.Y.S. 326, 333, where it was said that the arrestor must have perceived "indications of the commission of the offense sufficient to induce reasonable belief of the fact."⁵ In short, it is not sufficient to justify an arrest by a private citizen without warrant that the arrestee be subsequently shown to have been engaged in committing a misdemeanor at the moment of the arrest; the arrestor must have had reason to be aware at that time of the commission of the crime.

To ascertain the meaning of "arrest," we turn first to the definition contained in the New York Code of Criminal Procedure. Section 167 states that "arrest is the taking of a person into custody that he may be held to answer for a crime." Section 171 adds that "an arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody...