Rutherford v. United States, 15885.

• Citation: 264 F.2d 180
• Decision Date: 25 May 1959
• Docket Number: No. 15885.,15885.
• Parties: Charles H. RUTHERFORD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

264 F.2d 180 (1959)

Charles H. RUTHERFORD, Appellant, v. UNITED STATES of America, Appellee.

No. 15885.

United States Court of Appeals Ninth Circuit.

January 28, 1959.

As Amended March 17, 1959.

Rehearing Denied and Rehearing Denied March 17, 1959.

Certiorari Denied May 25, 1959.

Murray M. Chotiner, Russell E. Parsons, Beverly Hills, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Rembert T. Brown, Lloyd F. Dunn, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS and HAMLEY, Circuit Judges, and BOWEN, District Judge.

Rehearing Denied and Rehearing En Banc Denied March 17, 1959.

Certiorari Denied May 25, 1959. See 79 S.Ct. 1140.

BOWEN, District Judge.

This is an appeal by appellant from his conviction and $2,500 fine imposed by the United States District Court for the Southern District of California, Central Division, for his willful failure to register and pay a horse race wagering occupational tax as required by Sections 4411 and 4412, Internal Revenue Code, 1954, 26 U.S.C. §§ 4411, 4412, and in violation of Section 7203, Title 26 U.S.C. The case was tried by the Court without a jury upon an Information filed by the United States Attorney, charging in substance

That during the tax year beginning July 1, 1957 and up to and including August 15, 1957, appellant engaged in the business of accepting wagers on horse races and received such wagers within the meaning of Section 4401(c), 26 U.S.C., and that because of such activity appellant was required by Sections 4411 and 4412, Internal Revenue Code, 1954 to register and pay the wagering occupational tax to the Internal Revenue District Director at Los Angeles within the Central Division of the Southern District of California, and that the appellant, well knowing those facts, did willfully and knowingly fail to register and pay such District Director or any other proper officer of the United States, in violation of Section 7203, Title 26 U.S.C.

The principal contentions of appellant are (1) that the evidence stated in the supporting affidavits was insufficient to show probable cause for issuing the search warrant used to obtain certain seized papers which were later admitted at the trial to prove the charges of the Information against the appellant, and that the motion to suppress that evidence should have been granted, (2) that the evidence was insufficient to support the conviction and sentence of appellant, and (3) that the evidence did not sufficiently establish venue in the Trial Court, where in appropriate proceedings all these contentions were timely raised by appellant, but in each instance the Trial Court ruled adversely to appellant.

Of two other defendants tried with appellant but charged in a separate related case, one was dismissed upon appellee's motion and the other was adjudged not guilty.

On the occasion of the search and seizure of the papers, appellant was seen sitting on a couch stuffing some papers under the seat and a brown paper bag containing a number of papers was on the floor near his feet. By stipulation it was admitted that Deputy Sheriff Seltzer would testify that pieces of paper in the paper bag and those stuffed under the couch cushions contained notations of purported bets on horse races and figures showing totals of wins and losses on those bets.

In conversation with federal agents at that time, appellant said those papers were betting markers received by him from a clerk of Swede's (not otherwise identified by appellant) at the auto park identified in the evidence as a meeting place where appellant was said to have previously received rolls of papers from other named persons. Appellant also then said that he was using those papers to figure wins and losses, that Swede would pick them up nightly about 10 o'clock, that he was getting $150 weekly for his services, and when asked if he knew he was required to have a wagering (tax) stamp he said he did not need one because he was not a bookmaker.

As to appellant's contention (1), at the Trial Court hearing on appellant's motion to suppress the evidence for alleged lack of probable cause for issuing the search warrant, four supporting affidavits were brought into question.

The so-called affidavit for search warrant was made by Federal Special Agent Katayama stating that he "* * * has reason to believe that on the premises known as apartment F, 110 North Burris Road, Compton, California, in the Southern District of California, there is now being concealed certain property, namely betting markers, `owe sheets', `scratch' sheets, money, telephones, pencils, record paper, and other equipment and bookmaking paraphernalia, which are being used in violating the Internal Revenue laws pertaining to wagering, Sections 4401, 4411 and 4412, Internal Revenue Code 1954. And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: The affidavits attached hereto are incorporated by reference herein. * *"

So attached were three more affidavits, — one each by Deputy Sheriffs Howard Fowler and Calvin Bublitz and an additional one by Katayama.

Fowler's affidavit so attached stated in substance and effect, among other things, that on August 1, 1957, he observed and heard one of his confidential informants dial a certain telephone number and place a bet on a horse race. Fowler then located the address of the place to which was assigned the number dialed by the informant and observed Howard Lee Cupp, who was acquitted as one of the defendants in the related case tried with this one, leave that place address, and drive to an auto park adoining Mark's Restaurant at the corner of Long Beach Boulevard and Myrrh Street, Compton, California, and after Cupp waited there about five minutes, the appellant drove to that street corner address in a 1957 Cadillac, license number MLR 406, and then Cupp passed to appellant a parcel containing white slips of paper and thereupon appellant drove away and while under constant surveillance was trailed to Apartment F, 110 North Burris Avenue, Compton, California, and into that location appellant was observed to carry said parcel of papers;

That on July 26 and 30, and August 5, 1957, Cupp arrived at the same Long Beach Boulevard and Myrrh Street address and passed similar parcels of paper to appellant; that on two of these occasions appellant used a Ford car and on the other occasion he used said Cadillac car; that on each of those occasions appellant after so receiving the papers proceeded to the North Burris Road location in Compton; that on July 27, 1957 Cupp was met at that address by a woman known to affiant as the friend of appellant and who was driving said 1957 Cadillac car and she received from Cupp a similar bundle of papers and proceeded under affiant's surveillance to the same Apartment F, 110 North Burris Road, Compton; that on August 12, 1957, Cupp was observed again giving a parcel of papers to appellant at the same place of their previous meetings, that all of the foregoing meetings occurred about 6 p. m. on the days mentioned; that on August 13, 1957, at the same place about 6:14 p. m., Cupp again passed to appellant a similar parcel of papers; that on the last of such occasions affiant Fowler was accompanied by Agent Katayama and Deputy Sheriff Allen; and, quoting from Fowler's affidavit as to appellant,

"That the Los Angeles County Sheriff\'s Records Division shows the following previous convictions: 6/ 9/38 — Los Angeles County — gambling, $500 fine; 4/4/46 — Los Angeles S/c Dept. 44 — Bookmaking, 60 days, Susp.; LACJ — 6 mos. probation, $200 fine; SC file No. 106246; 11/28/49 — Long Beach — gambling, $25 fine; 1/22/55 — Compton — Compton MC 4202 — betting, $25 or 10 days, Fine paid;"

In his affidavit, Fowler in part further stated that appellant has a reputation as a bookmaker, but has not had any arrests other than the ones above mentioned; that the above mentioned white slips of paper stated to have been received by appellant, in affiant Fowler's opinion based on his experience as an officer in the Sheriff Vice Detail, and as one qualified as an expert in State Courts, are professional betting markers of the type generally used by bookmakers.

Bublitz's affidavit so attached to Katayama's warrant supporting affidavit stated in part as follows:

"* * * That on January 23, 1957, a visual check made at 304 South Mayo, Compton, California, disclosed that a two-toned green Ford Automobile was observed in the garage at this location; that this location is known to me to be the home of C. H. Rutherford, who is a notorious bookmaker who has previously been arrested by the Sheriff\'s Department; that a check of the Department of Motor Vehicles disclosed that C. H. Rutherford owned a 1954 Cadillac automobile at that time; that previous to the meeting in which Mr. Maltby an informant was interrogated, he was seen in the company of Mr. Rutherford and subsequently in his 1954 blue Cadillac automobile; that on subsequent occasions the two-toned green Ford automobile described above was observed in the garage at 110 North Burris Avenue, Compton, California; that it bears license No. HCR 483 and is registered to a Monica Kissell, who is known to me by name and reputation as the girlfriend of C. H. Rutherford; that C. H. Rutherford, Charles Hemmet Rutherford, alias Charles Hemmet, is known to the Bureau of Criminal Identification, State of California, FBI No. 456442, CII No. 487690, as a White Male American,

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