Billeci v. United States

• Citation: 184 F.2d 394,87 US App. DC 274
• Decision Date: 02 August 1950
• Docket Number: 10526.,No. 10525,10525
• Parties: BILLECI v. UNITED STATES. LEWIS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

87 US App. DC 274, 184 F.2d 394 (1950)

BILLECI v. UNITED STATES.

LEWIS v. UNITED STATES.

Nos. 10525, 10526.

United States Court of Appeals District of Columbia Circuit.

Argued April 28, 1950.

Decided August 2, 1950.

Mr. Myron G. Ehrlich, Washington, D. C., with whom Mr. Joseph Sitnick, Washington, D. C., was on the brief, for appellant Billeci.

Mr. William H. Collins, Washington, D. C., with whom Mr. Bernard Margolius, Washington, D. C., was on the brief, for appellant Lewis.

Mr. William Hitz, Assistant United States Attorney, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and Edward L. Carey and Robert M. Scott, Assistant United States Attorneys, all of Washington, D. C., were on the brief, for appellee. Mr. L. Clark Ewing, Assistant United States Attorney, Washington, D. C., also entered an appearance for appellee.

Before EDGERTON, PRETTYMAN and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellants were indicted for violation of a statute which provides that, if any person shall within the District of Columbia be concerned in any manner in managing or carrying on a lottery, upon conviction he shall be fined or imprisoned or both.¹ The indictment in full was:

"The Additional Grand Jury empaneled and sworn in May 1948 charges:

"During the period from about June 1, 1948, to about March 25, 1949, within the District of Columbia, William Lewis, Attillo Acalotti, alias Ortillo Acolotti, and Frank Billeci, were concerned as owners, agents, and clerks, and in other ways, in managing, carrying on, promoting and advertising a lottery known as the numbers game."

Appellants were tried before a jury, convicted, and sentenced.

Upon these appeals appellants raise 25 points, two of which relate to 16 alleged failures of the court to instruct the jury in various respects. We have examined each of the points presented but find it necessary to discuss only seven of them.

1. Evidence presented by the Government included, as exhibits, property seized by deputy marshals under a search warrant. Motions to suppress that evidence and proper objections to its presentation were duly made and denied. Appellants say that the alleged search warrant was improperly issued and executed. The warrant was issued by a United States Commissioner in Maryland and directed the United States Marshal for the District of Columbia to search premises located in Maryland. The warrant was executed by deputy marshals for the District of Columbia, the place searched being the one described in the warrant and being located in Maryland. Appellants say that a marshal has no power to execute a search warrant outside of his own district. The statute on the subject is an act of June 15, 1935.² It provides:

"It shall be the duty of the marshal of each district to attend the district courts when sitting therein and to execute all lawful precepts issued under the authority of the United States; and he shall have power to command all necessary assistance in the execution of his duty."

Prior to the enactment of that act the statute had given a marshal authority to execute writs "throughout the district". The statute then read:

"It shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute, throughout the district, all lawful precepts directed to him, and issued under the authority of the United States; and he shall have power to command all necessary assistance in the execution of his duty."³

Appellants make an appealing argument to the effect that the enactment of 1935, eliminating the phrase "throughout the district", was intended to facilitate the service of arrest warrants, that Congress did not contemplate the effect of the amendment on search warrants, and that to give literal effect to the amendment would possibly open the door to grave abuses in respect to search warrants. However, Congress made no distinction between arrest warrants and search warrants, and we cannot ignore the action of Congress in eliminating the phrase "throughout the district" from the statute. We hold that the search was validly executed.

2. The deputy marshals who executed the search warrant testified that, in addition to the property alleged to be gambling paraphernalia, they found on the premises two telephone installations, to which three telephones were attached; that while they were there the telephone rang many times and they answered. They testified that the callers either immediately hung up, or asked for one of the men who had been found on the premises, or placed bets on numbers. Appellants say that this testimony as to what was said over the telephone to the deputy marshals was inadmissible, not only because the alleged search warrant was illegal and the officers were therefore illegally upon the premises, but also because the testimony was in violation of the Communications Act,⁴ which prohibits the divulging of any intercepted communication. They rely upon United States v. Polakoff,⁵ Nardone v. United States,⁶ Nardone v. United States,⁷ and Weiss v. United States.⁸ The trial court admitted this evidence for the limited purposes of showing the nature of the premises and the geographical and jurisdictional scope of the activities conducted there. It did so upon authority of Commonwealth v. Jensky⁹ and Beard v. United States.¹⁰ The judge rendered a written opinion upon the applicability of the Communications Act,¹¹ the latter part of which opinion is devoted to this particular phase of the case. We agree with that court in its view that the action of the marshals in picking up the telephones when they rang and listening to what the callers had to say did not constitute an interception within the meaning of the statute. Perhaps, if the marshals had impersonated the wanted recipients, a different question might be presented. But in the conversations in the case at bar the callers, in some cases after being advised that the desired recipients of the messages were not there, proceeded to say what they had to say to whoever might have responded to the calls. We think that interception of a phone call necessarily involves the idea that a speaker thinks he is talking to one person whereas in fact a third person is listening. When a person calls a number on the telephone and speaks a message to whoever answers, we do not think that he can claim that his message was intercepted, merely because the person responding is not the person he intended to speak to. We intimate no opinion upon a situation in which the responding party impersonates the person for whom the call is avowedly intended. We find no error in the admission of this evidence in the present case.

3. During the course of the trial numerous witnesses called by the Government refused to answer questions, on the ground that their testimony might tend to incriminate them. Appellants requested the court to give the following instruction to the jury:

"The Jury is instructed that on several occasions during the trial, witnesses declined to answer, on the ground that their answer might tend to incriminate them and, in this connection, you are advised that the law is that such refusal by those witnesses shall not in any way or manner be considered by you to the prejudice of the defendant Lewis, and that the question which the particular witness refused to answer, permits no inference of any kind, to be drawn by you therefrom, as against the defendant Lewis."

The court denied the instruction, saying to counsel: "I am not going to say this to the jury, but my own view is that a jury has a right to infer that if the witness had answered the question, the answer would be unfavorable to the defendant, because here is a witness saying, in effect, `I refuse to answer because my answer might help prove I committed a crime.' I think a jury has a right to draw an unfavorable inference from that." And later the court said, "I am going to let them the prosecutors argue it; but I am not going to say anything in my charge to the jury one way or another." Objections were made to the denial of the instruction and also to the permission granted by the court to the prosecutors.

The court was in error in its statement of the law on this point.¹² If the prosecution puts a witness on the stand and the witness refuses to testify because his answer might incriminate him, the jury cannot infer that his testimony, if given, would be adverse to the defendant. The witness has a constitutional right to refuse to testify if the testimony would incriminate him, but the posssible guilt of the witness is not inferrable to the defendant. Such an inference, without more support, would be no more than speculation. The prosecutor did not press the point in his argument, but it does appear that he at least once asked the jury to infer that the testimony of these witnesses, if given, "would be . . . damaging to the defendants' case".

We think that the correct rule is that, when a witness declines to answer a question on the ground that his answer would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant. The witness in such an incident is exercising a constitutional right personal to himself. That exercise, without more, should not be to the harm of someone else. His answer, if given, might conceivably be that he but not the defendant was guilty of the offense, or it might be that both he and the defendant were guilty; or it might relate entirely to some other offense. We agree with the opinion of Mr. Justice Field, cited in footnote 12 hereinabove.

4. Several persons who were mentioned by witnesses as being involved in the alleged gambling activities were not called as witnesses by the Government. Neither were they called by the defense. In his charge to the jury the trial judge correctly stated the rule, saying:

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