U.S. v. Scott

• Decision Date: 11 July 1977
• Docket Number: No. 76-1438,76-1438
• Citation: 555 F.2d 522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene R. SCOTT, Jean Brown, Robert Lee Hodges, Carl Goss, Julian Lionel Scott, Luther Johnson, Virgil Ogletree, Donald Moore, James Harding and Lillian Harding, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 522

555 F.2d 522

UNITED STATES of America, Plaintiff-Appellee, v. Eugene R. SCOTT, Jean Brown, Robert Lee Hodges, Carl Goss, Julian Lionel Scott, Luther Johnson, Virgil

Ogletree, Donald Moore, James Harding

and Lillian Harding,

Defendants-Appellants.

No. 76-1438.

United States Court of Appeals, Fifth Circuit.

July 11, 1977.

Murray M. Silver, Atlanta, Ga. (Court-appointed) for E. Scott, J. Brown, R. Hodges, C. Goss, J. Scott, L. Johnson.

James R. Willis, Cleveland, Ohio, for V. Ogletree and D. Moore.

Edwin Marger, Nancy L. Finkel, Atlanta, Ga., for L. Harding and J. Harding.

John W. Stokes, U. S. Atty., Atlanta, Ga., Michael E. Moore, Atty. Appellate Section, T. George Gilinsky, Crim. Div., Dept. of

Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before MORGAN and FAY, Circuit Judges, and HUNTER, ^* District Judge.

EDWIN F. HUNTER, District Judge:

Appellants were convicted and sentenced on one count of violating the five-man gambling statute, 18 U.S.C. § 1955, and all but appellant Lillian Harding were convicted on one count of conspiracy to do so in violation of 18 U.S.C. § 371. ¹

The core of the Government's conspiracy theory involved a numbers lottery. In simplest terms this lottery consisted of persons picking a number and wagering that theirs would be the winning number. The daily winner was determined by a pre-arranged process and generally paid odds of five or six hundred to one. In the instant case the "hit," or winning number, was derived by taking the hundred-thousand and ten-thousand digits from the total bond sales on the New York Stock Exchange for that day as the first two figures and the ten-thousand digit from the total shares traded on the Big Board that day as the third. For example, if the total volume of bond sales on the New York Stock Exchange was $19,570,000 and the total shares traded was 16,250,000, the winning number for that day would be 575.

At street level, bets were placed with "writers" or "books" who would then pass the information either to "ribbon men" or directly to telephone relay operators. Four defendants, Julian "Q-Ball" Scott, Robert "Shipwreck" Hodges, Carl "Buster Mapp" Goss, and Luther "Buckhead" Johnson, were all named in the indictment as being writers or ribbon men." ² These defendants would in turn pass the betting information to one of the telephone relay operators. The operators would record this information and compute the amount bet on each number. The operator's tally sheets and cassette tape recordings of phone calls received by them were then taken to the lottery "headquarters" by a "drag man." Eugene Scott worked in this capacity. Scott's duties consisted of making daily rounds to writers, ribbon men, and telephone relay operators, from whom he would pick up the lottery records for that day's wagering activities and deliver them to the lottery office prior to the closing bell of the New York Stock Exchange. Sometimes, he would also serve as a "collector" and would collect the money wagered less "hits" and the percentages due writers and ribbon men. The office was run by James Harding, a retired New York City police lieutenant, who was assisted by his wife, Lillian. It was there that records were kept of the "hits" and "totals" and also there that the amounts disbursed were controlled.

The upper echelon of the operation consisted of two "bankers" and their assistant or "troubleshooter" in Atlanta. The alleged bankers in this operation were Virgil Ogletree of Cleveland, Ohio, and Frank Moten of the New York City area. Donald "Ducky" Moore supervised the daily operations in Atlanta.

On appeal, defendants assert errors in the disposition of pre-trial motions, in the conduct of the trial, and in the substance of their convictions. Upon consideration of the numerous and overlapping assignment

of errors, we find no reversible error and affirm.

THE SUFFICIENCY OF THE AFFIDAVIT

On the afternoon of September 24, 1975, federal agents armed with warrants searched the residences of Donald Moore and James Harding. In the course of their search they discovered and seized a number of incriminating items, later introduced in evidence. The warrants authorizing these searches were issued on September 23, 1975 by U. S. District Judge Newell Edenfield ³ on the basis of a 49-page affidavit prepared by Special Agent Donald P. Burgess of the Federal Bureau of Investigation. Burgess' affidavit set forth information received from unnamed "informants" and "sources." It also contained Bureau investigation and telephone company records. Additional support for the issuance of the warrants was provided in the form of Agent Burgess' recitation of past experience:

Affiant (Burgess) has learned from his prior experience in investigating illegal numbers lotteries that the persons engaged therein customarily keep wagering paraphernalia, such as lottery slips, rundown sheets, ribbons, tapes, collection sheets, books of accounts, miscellaneous records of bets, code books, lists of telephone numbers, checks, money orders, and records of bank accounts in conducting such lotteries * * *. They also maintain safety deposit boxes with local banking concerns for the purpose of hiding lottery records, account ledgers and money. Normally, pass keys to such safety deposit boxes are kept by lottery participants on their person as well as in their headquarters, residences and vehicles. Based on all the information, facts, and circumstances set forth heretofore, Affiant has probable cause to believe that the foregoing described wagering paraphernalia and money is now being concealed on the premises, persons and in the automobiles previously described, and more particularly described in each of Affiant's individual Affidavits for Search Warrants, which are attached hereto.

Motions for the return of the seized evidence and for suppression were denied both prior to and during the trial. The thrust of these motions was that the affidavit was insufficient to support the issuance of the search warrant because (1) it did not establish the credibility of the information attributed to the unnamed "informants" and "sources", and (2) it did not set forth sufficient information independent of the data supplied by these "informants" and "sources" from which Judge Edenfield could reasonably have concluded that wagering paraphernalia was located at the Harding or Moore residences. Thus framed, appellants argue that the search warrants were invalid, in that the probable cause requirement of the Fourth Amendment was not met. ⁴ The mainstay of the Fourth Amendment's protection against unreasonable searches and seizures is the warrant requirement. What showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of informants, known to the police but not identified to the magistrate? United States v. Harris, 403 U.S. 573, 575, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We are mindful of the admonition that a magistrate's determination of probable cause is entitled to great deference by reviewing courts. Jones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. 725, 4 L.Ed.2d 697. The legal sufficiency is to be judged under the double test announced by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and subsequently in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1964).

The magistrate must be informed of some of the underlying circumstances relied on by the person providing the information, as well as of some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable. If the affidavit appears insufficient because either of these criteria has not been met, probable cause may still be established if the affidavit also recites corroborative evidence which buttresses either the informant's reliability or the reliability of his information. Spinelli, supra.

The affidavit here amply satisfied both criteria. The results of extensive independent investigation by the FBI established a "substantial basis" for crediting the information received. Moreover, in almost every instance specific information provided by one individual was corroborated by the fact that others contributed almost identical information. United States v. Harris, 403 U.S. 573, 580-581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). This combination of informants' tips and FBI observations over an extended period of time is amply sufficient to warrant a man of reasonable caution to believe that an offense had been committed. United States v. Tucker, 526 F.2d 279, 281 (1976).

Appellants also attack the sufficiency of the affidavit by contending it did not reveal probable cause to believe that evidence of illegal gambling activity would be found in the Moore and Harding residences. The situation here does not differ markedly from other cases wherein this court and others, albeit without discussion, have upheld searches, although the nexus between the items to be seized and the place to be searched rested not on direct observation but on the normal inferences as to where the articles sought would be located. United States v. Lucarz, 430 F.2d 1051 (9th Cir., 1970). This court has recently addressed the problem:

While there is no firsthand evidence in the affidavit that materials subject to seizure were in the premises where the officers proposed to conduct their search, this is not always necessary. For instance, evidence that a defendant has stolen material which one normally would expect him to hide at his residence will support a search of his residence * * *.

The affidavit need not contain information providing certainty that the objects sought will be found as a result of the search. It is only necessary that "the facts and circumstances described in the affidavit would...