327 F.2d 345 (3rd Cir. 1964), 14287, United States v. Moriarity

Docket Nº:14287, 14288.
Citation:327 F.2d 345
Party Name:UNITED STATES of America, v. Joseph V. MORIARITY, Appellant.
Case Date:February 03, 1964
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 345

327 F.2d 345 (3rd Cir. 1964)

UNITED STATES of America,

v.

Joseph V. MORIARITY, Appellant.

Nos. 14287, 14288.

United States Court of Appeals, Third Circuit.

February 3, 1964

Argued Nov. 22, 1963.

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.

McLAUGHLIN, Circuit Judge.

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, 'Joseph Moriarity has a criminal record dating from at least December

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26, 1930 and continuing until July 1960. He was arrested six times for possession of numbers slips and in July 1960, was arrested by Special Agents of the Intelligence Division for conducting a gambling operation in violation of Sections 4401, 4411, and 4412, and 7203, Title 26, United States Code.'

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 '* * * saw other male individuals approach Joseph Moriarity and hand him something small or they would get into his car for a short period of time, then leave again. One of those men drove a Tan Dodge car, New Jersey License FSI 613, and he entered Moriarity's automobile at about 5:20 P.M. each day' for eight days in June 1961 while affiant was checking on appellant. On May 24, 1961, affiant observed appellant '* * * taking many stuffed envelopes from large shopping bags and he appeared to be checking the envelopes for notations. Occasionally he would open one of the stuffed envelopes and check it carefully. I saw him do this with three or four large shopping bags partially full of stuffed envelopes.'

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...

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