U.S. v. Ward, 81-1164
| Decision Date | 06 July 1982 |
| Docket Number | No. 81-1164,81-1164 |
| Citation | 682 F.2d 876 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas Fred WARD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David Lee, Asst. U. S. Atty., Oklahoma City, Okl. (David L. Russell, U. S. Atty., and John R. Osgood, Asst. U. S. Atty., Oklahoma City, Okl., on the brief), for plaintiff-appellee.
W. Rodney DeVilliers, Sr. of DeVilliers, DeVilliers & Sugarman, Inc., Oklahoma City, Okl., for defendant-appellant.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
Thomas Fred Ward (Ward) appeals his jury conviction and related judgment for failure to purchase a wagering stamp in violation of 26 U.S.C.A. § 7203. A review of the Government's undercover investigation of Ward and related search of his residence will facilitate our review. 1
During 1978 Billy Jack Henry (Henry), a special agent with the Internal Revenue Service, was conducting an undercover investigation of gambling activities in and about the Lawton, Oklahoma, area. In the course of his investigation, Henry, who had known Ward since 1967, met with Ward on October 16, 1978 and placed a wager with him. This occurred after Ward acknowledged that he was still in the bookmaking business. Ward gave Henry a business card with his telephone number listed thereon to be used for placing additional bets.
On October 20, 1978, after collecting his winnings from the October 16, 1978 wager, Henry obtained a search warrant for Ward's residence in Lawton. Within his affidavit filed in support of his request for a search warrant, Henry deposed, inter alia, that: he had known Ward since 1967; Ward was known to him as a gambler and bookmaker who accepted wagers on sporting events; on September 20, 1978 and during the week of October 15, 1978 he had received information from two confidential sources who had been placing bets with Ward by calling telephone number 355-3661 in Lawton; during an October 16, 1978 meeting with Ward, Henry had placed a bet with Ward and Ward gave Henry his bookmaking number as 355-3661, Lawton; the records of Southwestern Bell Telephone Company show the subscriber of telephone number 355-3661 to be Tom Ward, 1910 Irvin, Lawton; a check of Internal Revenue Service records failed to disclose that Ward had filed a special tax return for wagering or that Ward had obtained a wagering stamp.
Judge Thompson executed a search warrant on October 20, 1978, authorizing a search of Ward's residence for "wagering paraphernalia consisting of books and records, money, bet slips, football schedules, line sheets, settlement sheets ..." 2 Agent Henry and three fellow Internal Revenue agents proceeded to Ward's residence armed with the search warrant the next day. After entering Ward's residence, Henry advised Ward of his right to decline to answer any questions and his right to have a lawyer present. Henry then "patted" Ward down for weapons and inquired if he was armed. When Ward acknowledged that he never carried a gun but that he did carry a pocket knife, Henry requested that Ward empty his pockets and place the contents on a table. While emptying his pockets Ward produced, in addition to the pocket knife, $499 from his left front pocket, $220.78 from his right front pocket, a billfold, several betting slips and uncashed checks. When questioned by Henry, Ward acknowledged that the uncashed checks were bad checks he had received from betters. Henry subsequently seized the betting slips, uncashed checks, and $499 from Ward after Ward related that he could not remember where the $499 came from. The remaining $220.78 was returned to Ward after he explained how it came into his possession, unrelated to gaming.
During the course of the search of Ward's residence, Henry and the other agents who accompanied him located and seized additional gambling paraphernalia including books and records, schedules, line sheets, and settlement sheets. Henry answered Ward's phone numerous times while on the premises, using the alias of "Jack Lawson". Henry advised callers that he was helping Ward out. As a result of one such conversation, Henry induced Kenneth Josey (Josey) to stop by Ward's residence where Henry seized $3,290 which Josey delivered to the residence in payment of a gambling debt owed Ward.
Prior to trial, Ward moved to suppress all the evidence seized during the course of the search of his residence and person. In support of his motion, Ward alleged that: the search warrant was not supported by a sufficient affidavit; the warrant was issued for a search of the premises only; and, the search and seizure of items from his person was improper.
In denying Ward's motion to suppress, the district court found, inter alia: the affidavit was sufficient to support a finding of probable cause for the issuance of the search warrant; the warrant, as issued, was valid and the search conducted pursuant thereto lawful; the $3,290 voluntarily delivered by Josey to Henry was admissible; the $499 seized from Ward was discovered pursuant to a constitutionally reasonable search and was, accordingly, admissible; and the uncashed checks and betting slips which Ward voluntarily removed from his billfold were admissible inasmuch as the billfold was discovered pursuant to a valid search and Ward had voluntarily revealed the contents thereof.
Ward's trial commenced on November 10, 1980. On November 13, 1980, the district court declared a mistrial after the jury was unable to reach a verdict. A second trial commenced on December 8, 1980. The jury returned a verdict of guilty on December 9, 1980.
On appeal Ward contends that the trial court erred in: (1) admitting in evidence items seized from him during the course of the search of his residence in violation of his Fourth Amendment rights; (2) admitting in evidence the $3,290 seized from Josey; (3) admitting in evidence items seized from his person in violation of his Fourth and Sixth Amendment rights; (4) requiring that he proceed to trial a second time less than four weeks after his first trial and at a time when he could not obtain a copy of the transcript of the first trial; and (5) improperly furnishing exhibits to the jury which, although received in evidence during the first trial, were not offered or received in evidence during the second trial.
Ward contends, by consolidating his first three allegations of error, that the seizure of money, checks and betting slips from his person together with the seizure of $3,290.00 from Josey was the result of a warrantless and unreasonable search. Ward argues the evidence so obtained should have been suppressed prior to trial.
A.
Ward contends that the search warrant was limited to his premises and that the agents "exceeded the authority conferred by the warrant itself" in the search of his person. The Government argues that the initial search of Ward, i.e., patting him down and being informed that he carried a pocket knife, resulting in the request that he empty his pockets, was fully justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Henry related the events surrounding the actions of the agents undertaken pursuant to the search warrant as follows:
Q Okay Federal Officer, Federal Search Warrant. And he let you in the house?
A Yes.
Q He didn't offer any resistance?
A That's right.
Q Do you even tell him he was under arrest?
A No, sir.
Q As a matter of fact, he was not placed under arrest, was he?
A That's correct.
Q Now, you said you patted him down.
A Yes.
Q You put (sic) him How did you do that?
A I just turned him around, patted him down in the normal manner. I didn't put him against the wall.
Q All right. In the course of patting him down, you didn't discover anything that led you to believe he was carrying a weapon or anything else out of the ordinary in his pocket or on his person?
A Other than the-what he had in his pocket, it was bulgy. I didn't know what it was.
Q It was bulgy. Well, you didn't observe any gambling going on there, did you, at 1910 Irwin, on the 21st of October, in Lawton?
A No, sir. Only gambling paraphernalia.
Q But you say you patted him down?
A Yes, I did.
Q And, turned him around?
Q Then he had reason to believe he was arrested, didn't he?
A I have no knowledge of what was in his mind. I did it for several reasons, as a routine precaution.
(Tr. August 19, 1980 civil suppression hearing at pp. 32-33 and 35).
Within its order denying Ward's motion to dismiss and upholding Henry's search of Ward, the district court found:
... Upon entering the premises for the purpose of executing the search warrant the agents read the defendant his rights and patted him down for weapons. Agent Henry then asked defendant Ward if he was armed and the defendant responded that he never carried a gun, however, he did state that he had a knife.... In response to this information that the defendant was armed, Agent Henry directed the defendant to empty his pockets on a table. Among the items placed on the table were defendant's billfold and the $499.00.... In Terry v. Ohio, supra, the Court stated that "The scope of the search must be 'strictly tied to' and justified by 'the circumstances which rendered its initiation permissible.' " The question presented here is whether Agent Henry was justified in expanding the scope of the search from a superficial pat-down search for weapons to a more intensive search of the person. In this case, the Court finds that Agent Henry had sufficient grounds to expand the scope of the search for the reason that he had already conducted a superficial search pursuant (to) Terry and was then advised by the defendant that the defendant was armed. The Court cannot say that Agent Henry acted unreasonably or inappropriately in light of the totality of facts then available to him.
It is uncontested that at the time Henry and the other agents conducted the...
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