United States v. Moriarity, 14287
| Decision Date | 03 February 1964 |
| Docket Number | 14288.,No. 14287,14287 |
| Parties | UNITED STATES of America, v. Joseph V. MORIARITY, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Raymond A. Brown, Jersey City, N. J., for appellant.
Sanford M. Jaffe, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., on the brief), for appellee.
Before McLAUGHLIN, KALODNER and GANEY.
Appellant was convicted of being engaged in the business of accepting wagers and failing to pay the occupational tax in connection therewith, in violation of 26 U.S.C. §§ 7262, 7203.
The application for the issuance of the warrant was supported by the affidavits of Irving B. Dubow and A. Joseph Toscano, Special Agents, Intelligence Division, Internal Revenue Service. Both affidavits were executed June 28, 1961. The central problem is whether these affidavits contained sufficient evidence to establish probable cause to search appellant's residence, 18A Hamilton Place, Jersey City, New Jersey. Agent Dubow stated that on September 29, 1960, he had participated in the execution of a search warrant on the same premises, appellant's home. At that time, he stated, "There were seized within, on the upper and lower floors, cartons containing packets of coded current lottery number slips, an adding machine, records, wagering paraphernalia and secreted currency in excess of $50,000.00."
Agent Toscano in his affidavit said that,
Toscano, with "* * * previous experience in investigating wagering activities in many states for the United States Treasury Department, observed appellant on numerous occasions in May and June 1961 in the vicinity of York Street near Van Vorst and Warren Streets, Jersey City, around five o'clock in the afternoon. During that period he often saw a particular woman in various cars being driven into that area and there park. Shortly thereafter appellant, mostly driving a car affiant knew to be his, would appear and drive to the woman's car. The first time affiant observed such action, the woman handed appellant "a white stuffed envelope". The next two times she gave him "a package". Affiant saw similar meetings between the two at least seventeen times between May 19, 1961 and June 21, 1961. Within that same span he for eight days in June 1961 while affiant was checking on appellant. On May 24, 1961, affiant observed appellant
Agent Toscano said that the above mentioned envelopes and packages "* * * were similar in size to those commonly found in a numbers operation." He stated: "* * * I believe that Moriarity's actions and manner of circuitous driving after he received packages from individuals in cars was like that used by persons engaged in the numbers lottery operation."
On one occasion the above mentioned woman crumpled a small piece of white paper and threw it from her car. Toscano retrieved the paper. It was a piece of adding machine tape. There was an amount printed on it and another amount written in ink. The latter was 25% of the other sum on the tape. Also on the tape was the code mark "C5". Search of the bet slips seized from Moriarity in July 1960 as previously noted revealed one pack with the code "C5" which contained many bet slips that "* * * were similar and appeared to be written by the same person".
On June 2, 1961 Toscano saw Moriarity in an automobile which he had driven on one or more of the above referred to occasions, go to the area of his home at 6:03 P.M., pass his house and turn left at the first intersection. On June 10, 1961 he saw Moriarity in a 1956 black Buick, another of the cars he had used in his mentioned activities, proceeding from the vicinity of his home north on West Hamilton Place. This was about 5:50 P.M. Toscano also says:
Agent Dubow described following appellant on June 2, 1961 at 5:05 P.M. from the vicinity of York Street to the Henderson Auto Service Center at Henderson and Seventh Streets. Dubow, in previous wagering surveillances had "* * * observed Moriarity driving and using in his lottery operations, vehicles bearing license plate numbers registered...
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