Gillespie v. United States

Citation368 F.2d 1
Decision Date14 November 1966
Docket Number18072,No. 18071,18079.,18071
PartiesJoseph F. GILLESPIE, Appellant, v. UNITED STATES of America, Appellee. Ransom D. GILLESPIE, Jr., Appellant, v. UNITED STATES of America, Appellee. Harry BENNETT, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Murry L. Randall, St. Louis, Mo., for appellant. Morris A. Shenker, St. Louis, Mo., was with him on the brief.

D. M. Statton, U. S. Atty., Des Moines, Iowa, for appellee. Jerry E. Williams, Asst. U. S. Atty., Des Moines, Iowa, was with him on the brief.

Before JOHNSEN, Senior Circuit Judge, BLACKMUN, Circuit Judge, and YOUNG, District Judge.

JOHNSEN, Senior Circuit Judge.

These three cases consist of separate appeals by the defendants from their conviction on a jury trial of the seven charges in an indictment against them relating to interstate gambling activities.1

Appellant Joseph Gillespie was engaged in the "bookie" business at Des Moines, Iowa. Appellant Ransom Gillespie, his brother, assisted in carrying on the activities. Appellant Harry Bennett also was engaged in the "bookie" business, during some of the time involved at Biloxi, Mississippi, and some of the time at New Orleans, Louisiana, with his operations including the furnishing of point-spread and odds services on sports events and the taking of layoff bets from other "bookies".

It was admitted on the trial that, through the periods involved, both Joseph Gillespie and Harry Bennett held gambling stamps, I.R.C. § 4411, 26 U.S. C.A.; paid excise wagering taxes, § 4401; and listed gambling as their principal business in their income tax returns.

Four of the charges were for the offenses under 18 U.S.C. § 1084 of knowingly using wire communication facilities here long-distance telephone service, while in the betting business, for the transmission in interstate commerce of information to assist in the placing of bets and wagers on sporting events two counts, covering different calendar periods and for the transmission in interstate commerce of bets and wagers two counts, covering different calendar periods.

Of the other charges, two were for the offense under 18 U.S.C. § 1952, during different calendar periods, of using a facility in interstate commerce here long-distance telephone service with the intent and with attempt thereafter to perform an act to facilitate the carrying on of a business enterprise involving gambling here betting and wagering on sporting events, in violation of Chapter 726, Code of Iowa,2 and alleged also to be in violation of 18 U.S.C. § 1084, supra.

As to Ransom GilÅlespie, his conviction of all these offenses rested under the evidence upon his having been, as indicated above, an aider and abettor, and so being dealt with by the jury, on the basis of 18 U.S.C. § 2, as a principal.

The remaining charge was for the offense under 18 U.S.C. § 371 of having conspired to commit the substantive offenses which have been referred to.

We regard as the principal question here whether the District Court could properly hold that the state search and seizure involved was lawful, as having had sufficient basis to constitute probable cause for the warrant issued to make search of Joseph Gillespie's residence. It was the probative materials obtained by this search and the probative fruits secured by leads therefrom upon which the federal prosecution was primarily predicated.

The warrant was issued by a judge of the Municipal Court of Des Moines, Iowa, to an officer in the vice bureau of the police department of that city. The officer had presented to the judge as magistrate a printed legal form, bearing the caption "Informationor a Search Warrant", and having Joseph Gillespie's name and address typed in immediately below. The body of the instrument consisted of an affidavit form, with a blank space for insertion of an affiant's name in which the officer filled in his own name and with a printed recital following that, as affiant, he stated on oath that he had good reason to believe "that certain gambling devices, to-wit: Cards, Dice, Faro, Roulette Wheel, Klondyke Table, Poker Table, Punchboard, Keno Layouts" were located on the described premises.3 The magistrate took the officer's oath and signature to the affidavit.

On the hearing of the motion to suppress, the officer testified that, beyond the recital of the affidavit, he had orally told the magistrate "that we had checked with Internal Revenue, and that Joe Gillespie had a current wagering stamp; that we had done some checking and obtained information that indicated that he was currently in the gambling business". This was all that was shown to have been before the magistrate. The officer's testimony did not make it entirely clear whether the oath taken by him was merely to the truthfulness of the formal affidavit or to that of his oral statements as well. The District Court, however, regarded the evidence on hearing of the motion to suppress as sufficiently indicative that the oath has had application to both the executed instrument and the oral statements. On the equivocalness involved, this appraisal is entitled to acceptance here as representing a not-clearly-erroneous resolution of a question of fact, within federal trial-court function.

The Court declared that, except for the oral supplementation which had thus occurred as to the affidavit there would not have existed probable cause for issuing the warrant and the motion to suppress would have had to be sustained. On this aspect, appellants argue, first, that probable cause can legally have existence and demonstration only in the contents of such executed instrument as is filed for the issuance of a warrant, and that this of itself calls for a reversal here.

Rule 41(c), Fed.Rules of Crim. Proced., 18 U.S.C.A., provides that "A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant". There are cases declaring that this requires probable cause to be determined exclusively on the contents of the affidavit for the warrant. See e. g. United States v. Whitlow, 339 F.2d 975, 979 (7 Cir., 1964); United States v. Birrell, 242 F.Supp. 191, 202 (D.C.S.D.N.Y., 1965); Tripodi v. Morgenthau, 213 F.Supp. 735, 738 (D.C. S.D.N.Y., 1962); United States v. Evans, 97 F.Supp. 95, 96 (D.C.E.D.Tenn., 1951). Assuming, for purposes of appellants' contention, the correctness of these holdings, this would not, however, be controlling as to the present situation, for the Rule is only a procedural prescription as to the issuance of warrants by the federal courts.

On substantive aspect, to which it is necessary here for appellants' contention to reach, the Fourth Amendment contains no prescription as to the form or manner in which probable cause must be shown, but merely provides generally that "* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *". In the adoption of this language by state constitutions as a guarantee, some states have added statutory implementation requiring an application, in writing and under oath, to be filed, with the existence of probable cause alleged, but permitting the magistrate or judge to whom the application is presented to take supplementing testimony as to the basis and facts thereof.

Thus the Iowa statutes, while requiring the filing of "a written information", supported by oath or affirmation, alleging the existence of some ground specified in the statute for issuance of a warrant and stating that the applicant believes and has substantial reason to belie that the ground exists in fact, authorizes the magistrate to satisfy himself "from his examination of the applicant and * * * other witnesses * * and * * * the allegations of the information" as to the existence or basis to believe the existence of the alleged ground. 56 I.C.A. §§ 751.4 and 751.5. The Supreme Court of Iowa has held these provisions to be valid, saying that its constitutional provision identical in language with the Fourth Amendment "does not mean that the probable cause * * * must be shown in the information itself. It may be shown in an affidavit attached thereto or in sworn testimony taken before the magistrate prior to the issuance of the warrant". Burtch v. Zeuck, 200 Iowa 49, 202 N.W. 542, 544, 39 A.L.R. 1349 (1925); State v. Doe, 227 Iowa 1215, 290 N.W. 518, 522 (1940).

We too have recognized the use of such auxiliary procedure by a state as constituting a valid basis for the demonstration of probable cause in the issuance of a state warrant, and as not in this respect contravening the Fourth Amendment. Miller v. Sigler, 353 F.2d 424, 426 (8 Cir., 1965). Also, while perhaps no implication can be said to be intended thereby, the following statement in Aguilar v. State of Texas, 378 U.S. 108, 109, f. n. 1, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723, 728, may nevertheless be noticed as having at least collaterally touched the field:

"The record does not reveal, nor is it claimed, that any other information than that contained in the affidavit was brought to the attention of the Justice of the Peace. It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate\'s attention".

But accepting here both the officer's oral statements and the affidavit in test of probable cause, we think, as appellants next contend, that there still was not before the magistrate such demonstration of ground or basis as to make reasonable, within constitutional guarantee, the issuance of the warrant sought for searching Gillespie's home.

The officer's affidavit that he believed and had good reason to believe that the gambling devices enumerated in the printed form were located on the premises was, of course, as held by the District Court, not sufficient by itself to constitute...

To continue reading

Request your trial
43 cases
  • Barnett v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 26, 1967
    ...require reversal under the rule of McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See Gillespie v. United States, 368 F.2d 1, 6-7 (8th Cir. 1966); Rosencranz v. United States, 334 F.2d 738 (1st Cir. 1964); Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F......
  • State of Iowa v. Union Asphalt & Roadoils, Inc.
    • United States
    • U.S. District Court — Southern District of Iowa
    • March 14, 1968
    ...to a situation of joint trial. See McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966); Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963); Hair v. United States, 110 U.S.App.D.C. 153, 289 F. ......
  • United States ex rel. Pugach v. Mancusi, 67 Civ. 4844
    • United States
    • U.S. District Court — Southern District of New York
    • March 12, 1970
    ...690 (1966). However, the Court does not rely solely on these cases, which do not confront the issue squarely. In Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966), the Court addressed itself to the issue. Distinguishing federal cases based on Rule 41(c) of the Fed.R.Crim.P., which hold......
  • Spinelli v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 12, 1967
    ...in Aguilar; and is far less than the detailed recital found in the affidavit before us. Nor do we believe that Gillespie v. United States, 368 F.2d 1 (8 Cir. 1966) is determinative. In that case we held that orally stating to a magistrate that the suspect had a wagering stamp and that affia......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT