United States v. Pizzarello

Decision Date17 November 1967
Docket NumberNo. 89,Docket 30658.,89
Citation386 F.2d 177
PartiesUNITED STATES of America, Appellee, v. Emilio PIZZARELLO, Appellant.
CourtU.S. Court of Appeals — Second Circuit

James G. Starkey, Brooklyn, N. Y., for appellant.

Lawrence W. Newman, Asst. U. S. Atty., Southern District of N. Y. (Robert M. Morgenthau, U. S. Atty., Douglas S. Liebhafsky and Pierre N. Leval, Asst. U. S. Attys., Southern District of New York, on the brief), for appellee.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

PER CURIAM:

An information was filed against Emilio Pizzarello, charging him in two counts of engaging in the business of accepting wagers without paying the special wagering tax, 26 U.S.C. §§ 4401, 4411, 7262, and without registering with the District Director of Internal Revenue, 26 U.S.C. §§ 4401, 4412, and 7272. A jury returned verdicts of guilty, without wilfulness, on both counts and from the judgments of conviction entered thereon, he now appeals.

The principal issue which he presents to this court is whether or not he was illegally arrested. At the pre-trial proceeding the warrant which Agent Riley possessed was held invalid but the validity of the arrest, and the seizure of cash and bet slips found in the appellant's possession were sustained.

In the absence of a valid warrant, an agent of the Internal Revenue Service is authorized to make an arrest for a misdemeanor related to the revenue laws which is "committed in his presence." 26 U.S.C. § 7608(b) (2) (B). Prior to the effective date of that section, this court interpreted a similar statutory authorization contained in § 183 of the New York Code of Criminal Procedure as sanctioning an arrest without a warrant in cases where the observations of the arresting agent are sufficient to induce a reasonable belief that a crime is then and there being committed. United States v. Viale, 312 F.2d 595 (2 Cir.), cert. denied 373 U. S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963). We see no valid reason why a like construction should not be given the federal statute.

On March 30, 1965, and on seven separate occasions thereafter, including the afternoon of April 15th shortly before the arrest, Riley's fellow Internal Revenue Agent, Ripa, had placed horse race wagers with the appellant in the back room of Pizzarello's combination luncheonette-stationery store. On each of his visits he observed others there reading scratch sheets or racing programs, writing on slips of paper, and handing these slips along with sums of money to Pizzarello. He had fully recounted these experiences and described what he had observed to Agent Riley, who had been assigned to the case with him. Riley observed Agent Ripa and several others enter the back room on the afternoon of April 15th and Riley himself entered the back room a few minutes later and found Pizzarello, with another man, seated at a desk covered with betting slips, pencils, and scratch sheets. Two men were standing around reading racing forms. What he then observed and what he had been told by his fellow agent, Ripa, furnished reasonable grounds for him to believe that gambling activities were going on. See United States v. Comi, 336 F.2d 856, 858 (4 Cir. 1964), cert. denied 379 U.S. 992, 85 S.Ct. 704, 13 L.Ed.2d 611 (1965); cf., United States v. Elgisser, 334 F.2d 103, 110-111 (2 Cir.), cert. denied 379 U.S. 881, 85 S. Ct. 151, 13 L.Ed.2d 87 (1964). Under these circumstances the arrest was clearly lawful and evidence seized in the...

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6 cases
  • Pizzarello v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 18 Marzo 1969
    ...information resulted in conviction, without wilful intent, which was affirmed by this Court on November 17, 1967. United States v. Pizzarello, 386 F.2d 177 (2d Cir. 1967). However, the affirmance was vacated by the Supreme Court on March 4, 1968, Stone v. United States, 390 U.S. 204, 88 S.C......
  • Pizzarello v. United States
    • United States
    • U.S. District Court — Southern District of New York
    • 31 Mayo 1968
  • Yeatts v. Minton
    • United States
    • Virginia Supreme Court
    • 30 Noviembre 1970
    ...& Casualty Co. of N.Y., 120 W.Va. 593, 199 S.E. 884 (1938); See Call v. United States, 417 F.2d 462 (9th Cir. 1969); United States v. Pizzarello, 386 F.2d 177 (2d Cir. 1967); Stephens v. Lindsey, 304 F.Supp. 203 In Prosser v. Parsons, Supra, the defendant game warden arrested Prosser, charg......
  • Stephens v. Lindsey, Civ. A. No. 2498.
    • United States
    • U.S. District Court — Southern District of Georgia
    • 5 Septiembre 1969
    ...and where he has probable cause to believe that it is being committed. Hart v. United States, 5 Cir., 316 F.2d 916; United States v. Pizzarello, 2 Cir., 386 F.2d 177; United States v. Gormon, D.C., 36 F.R.D. 416; United States v. Grosso, D.C., 225 F.Supp. 161; Jordan v. Peyton, D.C., 264 F.......
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