United States v. Botsch

• Decision Date: 01 August 1966
• Docket Number: Docket 30297.,No. 432,432
• Citation: 364 F.2d 542
• Parties: UNITED STATES of America, Appellee, v. Paul W. BOTSCH, Jr., Appellant.
• Court: U.S. Court of Appeals — Second Circuit

364 F.2d 542 (1966)

UNITED STATES of America, Appellee, v. Paul W. BOTSCH, Jr., Appellant.

No. 432, Docket 30297.

United States Court of Appeals Second Circuit.

Argued June 3, 1966.

Decided August 1, 1966.

Solomon Z. Ferziger, Brooklyn, N. Y., for appellant.

George L. Barnett, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern District of New York, Jerome C. Ditore, Asst. U. S. Atty. on the brief), for appellee.

Before MOORE, SMITH and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

Paul W. Botsch, Jr. appeals from a judgment of conviction on thirteen counts of violating 18 U.S.C. § 1341 (using the mails in a scheme to defraud) and on one count of violating 18 U.S.C. § 1342 (assuming a fictitious name or address to promote a scheme). Judge Dooling, who presided at Botsch's jury trial, imposed concurrent sentences of six months' imprisonment followed by eighteen months' probation on each count. For the reasons set forth below, we affirm.

I.

Because Botsch challenges the admissibility of certain evidence obtained by searches which he contends were unreasonable and, hence, violative of the Fourth Amendment, it is necessary to set forth in detail not only the factual material presented at trial which the jury was warranted in crediting but, in addition, the circumstances which led to the procurement of the controverted evidence. The record discloses that, in 1962, Botsch and two friends, Harold Switts and Richard A. Boyce, Jr., opened a retail sporting goods enterprise known as "Olympic Arms"¹ in Huntington, New York. Because of previous financial difficulties, Botsch avoided being designated an officer of the company; he, nevertheless, undertook full management of the business and placed most of the orders for merchandise. Switts spent little time in the store, and Boyce, the company's nominal president, played only a slightly more active role.

Shortly after the Olympic Arms store commenced operations in Huntington, Botsch rented a small shack located at the Fire Island Ferry Station in Sayville, New York. This wooden shanty, measuring a bare 10 × 20 feet with one window, was leased from Kenneth Stein,² who operated the ferry and managed the ferry station, at a monthly rental of $25. Indeed, the shack, at one time, had been used as the ferry terminal office.

In addition to making these premises available, Stein, at the request of Botsch, agreed to perform certain services. Since Botsch stated that he expected parcels to be shipped to the shanty, he asked Stein, who Botsch knew had retained a key, to unlock the shack in order to permit delivered merchandise to be stored inside and also to sign any required receipts. Moreover, Botsch gave Stein $100 in cash to be used in payment of freight charges. Stein, at the trial, testified that he performed these functions and that Botsch, almost daily, came to the shanty, picked up the accumulated deliveries and replenished the cash fund so that, at all times, it would be maintained near the $100 level. Stein also stated that Botsch placed a sign on the shanty which read "Lands End Supply Co., Division of Fisherman's Paradise."³

In October 1962, an order for merchandise under the letterhead "Lands End Sports Shop (Division of Fisherman's Paradise Inc.), River Avenue at Lands End, Sayville, New York" (emphasis added) was dispatched to Wightman Electronics Inc., Easton, Maryland. It read:

Gentlemen:

Please send us 1 (one) Call of the Wild record machine and 1 each of the different game records for the machine.

References other than Dun & Bradstreet supplied upon request.

Thank you in advance /s/ C. Sampos C. Sampos

Orders for sporting mechandise, on similar stationery and bearing a similar signature,⁴ were also dispatched in October to "Bushnell," Pasadena, California; "R. C. B. S.," Oroville, California; "Original Sight Exchange," Paoli, Pennsylvania; "P. S. Olt Co.," Pekin, Illinois; "Paul Jaeger," Jenkintown, Pennsylvania; and "Division Lead Company," Summit, Illinois.⁵ Each company filled the order received by it, shipped goods to Sayville and, it may be inferred, relied on the Dun & Bradstreet credit rating for another "Fisherman's Paradise," enterprise in Sayville, New York.

The ingenious nature of the scheme becomes apparent when we learn that the reference to "Fisherman's Paradise" in Dun & Bradstreet was not to the mail or package drop which Botsch maintained in Sayville. Instead, the listing referred to an unincorporated and wholly unrelated sporting goods enterprise which had been owned and operated by one Christopher Locascio in Sayville for more than 8 years under the tradename "Fisherman's Paradise." Indeed, it appears that prior to November 1962, a "comedy of errors" caused Locascio to suspect that something was amiss; he was receiving packages addressed to Lands End Sports Shop — Fisherman's Paradise which he had never ordered. After making some inquiries, Locascio learned that Botsch had rented the shanty in controversy from Stein and that the premises were being used to receive goods which ostensibly were ordered and being shipped on Locascio's credit. Angered by all this, Locascio communicated with Botsch and complained bitterly about the scheme, even uttering threats if Botsch did not discontinue this deceit. Botsch, however, vigorously denied any participation in the Lands End Sports Shop operation. And, two days later, Locascio received a letter from the "Lands End Supply Company (Division of Fisherman's Paradise Inc.)," bearing the signature "C. Santos," and, without doubt stimulated by the conversation between Locascio and Botsch. The letter stated, inter alia, that, as a New York State chartered corporation, Fisherman's Paradise Inc. was well within its rights in doing business in Sayville. Locascio was not placated by this communication. Accordingly, he complained to Post Office authorities and Postal Inspector Daniel E. Daly was assigned to the investigation.

On November 6, 1962, Daly, Postal Inspector Mailloux and Locascio went to the ferry terminal office in Sayville where they spoke to Stein. After identifying a picture of Botsch, Stein willingly disclosed the full circumstances under which the shanty had been rented to Botsch. Daly, with Stein's approval, looked through a window of the shack and observed empty cartons and boxes strewn about. Stein, by this time concerned that his property was being utilized for illegal purposes, unlocked the shanty and asked the Inspectors if they wished to enter in order to examine what was stored there. Although, concededly, they did not possess a search warrant, the officers accepted Stein's invitation and, once inside, Inspector Mailloux compiled a list (later destroyed) of the shippers' names imprinted on several empty parcels.⁶ While the record is not clear, it appears that the inspectors were inside the shanty briefly; other than listing the shippers' names, nothing was taken from the shack.

Sometime prior to November 8, an Assistant United States Attorney, acting in Daly's behalf, ascertained from the New York Department of State that no corporation named "Fisherman's Paradise Inc." was then chartered. In addition, Daly contacted Dun & Bradstreet and learned that there was some link — albeit unclear — between the so-called Fisherman's Paradise Inc. and the Olympic Arms store in Huntington. Moreover, and of significance in dealing with the questions presented on appeal, Daly was able to obtain from Dun & Bradstreet a list of manufacturers of sporting goods who had made inquiries concerning the credit of Fisherman's Paradise Inc.⁷

Commingling the names on this list with those obtained from the cartons in the Sayville shanty, Daly dispatched teletype inquiries to post offices in several major cities in the country. On November 7, he received from Wightman Electronics, Inc. (Wightman) the original of the order dated October 2, 1962, which had been dispatched over the signature of C. Sampos, and an affidavit of J. Ellis Orr of that company setting forth the circumstances under which the order had been filled.

Armed with this information, Daly proceeded to apply for two search warrants and a warrant for Botsch's arrest. The warrant of arrest was issued on the basis of Daly's complaint charging that Botsch had devised a scheme to defraud Wightman by obtaining merchandise through the mails on the letterhead of a fictitious company and by capitalizing, without authority, on the credit of another enterprise. Daly noted that his information was based on correspondence with Wightman.

At the same time, Daly obtained two search warrants relating, respectively, to Botsch's Olympic Arms store in Huntington and to the Sayville shanty. In applying for these warrants, Daly submitted affidavits which were identical in text except for their description of the premises to be searched. Each affidavit stated that Daly had reason to believe that, at the specified location, there was concealed "a quantity of guns and ammunition and other hunting and fishing equipment" fraudulently obtained through the mail "from Wightman Electronics, Inc. of Easton, Maryland." Daly noted that this statement was based upon an investigation which he conducted and which had produced the correspondence with Wightman. On each affidavit appeared the handwritten statement: "That deponent saw the aforesaid merchandise on Nov. 7th 1962."

In the afternoon of November 8, 1962, Botsch was arrested at his Olympic Arms store and a search was conducted there. Sporting merchandise which the officers believed were the fruit of the alleged scheme were removed from the shelves, piled on the floor and later transported by truck to post office headquarters. While this was transpiring, the Sayville shanty was also searched. Botsch, who was questioned in his Huntington store, made inculpatory statements and agreed to accompany Daly and the other arresting officers to his home where certain invoices, Lands End...