United States v. Calamaro
| Decision Date | 09 January 1956 |
| Docket Number | Crim. No. 17892. |
| Citation | 137 F. Supp. 816 |
| Parties | UNITED STATES of America v. Victor CALAMARO. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
W. Wilson White, U. S. Atty., Norman Henss, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Thomas D. McBride, Philadelphia, Pa., for defendant.
Defendant has been convicted of failing to pay the $50 special gambler's tax imposed yearly by the Internal Revenue Code, 26 U.S.C.A. § 3285 et seq.1 He has moved for judgment of acquittal or in the alternative for a new trial.
The government called as witnesses two Philadelphia police officers who had had many years of experience in the suppression of vice and much experience in the suppression of numbers gambling. They testified that they arrested defendant on October 10, 1952, and that at this time he had in his pockets 48 sheets of paper which were three inches wide and seven inches long. On these sheets of paper were 1,800 notations of numbers, each one of which was a three-digit number followed by a dash and another number. The officers described the slips of paper as "banker slips" and testified that from their experience in the numbers gambling business it was their opinion that the numbers on the sheets were notations of lottery bets or wagers, that the three-digit numbers in front of the dash were numbers which had been played and that the number following the dash showed the amount of money which had been played on the number which preceded the dash.
Defendant admitted to the officers at the time of his arrest that he had been picking up "numbers" for a period of three months and that for this work he had been paid $40 a week.
The evidence also showed that as a result of the evidence obtained at the time of the arrest on October 10, 1952, defendant was indicted in the Court of Quarter Sessions of Philadelphia County and charged with setting up an illegal lottery. The evidence showed also that defendant pleaded guilty to this charge and was sentenced thereon.
The Revenue Code provides, § 3285:
The Code also provides, § 3290:
"A special tax of $50 per year shall be paid by each person who is liable for tax under subchapter A or who is engaged in receiving wagers for or on behalf of any person so liable."
The Code also provides, § 3294:
The numbers gambling business in which defendant was involved was operated by a proprietor or numbers bank. The proprietor employed numbers writers who made the contacts with the public and who actually sold the numbers and collected the money from the customers. The writers made records of their bets or wagers (the numbers played and the amount of money played thereon) and these records were conveyed to the numbers bank. However, the writers themselves did not bring these records to the numbers bank. This transportation or messenger work was done by other employees of the bank, known as pick-up men. Defendant was one of these pick-up men. The evidence does not show that he himself sold any numbers or handled any money, or that he was a proprietor of the business.
It is clear that the proprietor of the gambling business in which defendant was engaged was liable for a tax of ten per cent on the amount of all the wagers placed with him and that he was liable additionally for the special tax of $50 a year. It also is clear that the numbers writers were liable for the special tax of $50 a year. The question here is whether or not defendant, who did not contact the public and who handled no money was "engaged in receiving wagers for or on behalf of" his employer, the numbers bank.
Defendant contends that he was not "engaged in receiving wagers." I disagree with defendant's contention. In my opinion he was just as much engaged in receiving wagers as were the numbers writers. The numbers writers, of course, actually contacted the customers, took their money and assisted more directly in the making of the bets, but they were no more receiving wagers than was defendant, because they were all working not for themselves, but for their principal and it was the principal in fact who was making the wagers. Both the pick-up men and the numbers writers were assisting in the making and receiving of wagers and therefore all of them were "engaged in receiving wagers for or on behalf of" the numbers bank.
In Sagonias v. United States, 5 Cir., 1955, 223 F.2d 146, a pick-up man made the same contention as defendant is now making in the present case. In the Sagonias case the United States Court of Appeals for the Fifth Circuit ruled against the contention which defendant is now making. I agree with this decision.
The numbers slips which were found on the present defendant's person at the time of his arrest were seized by the police officers, but they were not produced at the trial of the case. The government explained the failure to produce the slips by showing that they had been delivered to the Philadelphia Court of Quarter Sessions, and that after defendant had pleaded guilty and had been sentenced in that court the slips had been confiscated2 by the District Attorney's office. Defendant contends that the slips were the best evidence against him and that because of their absence in the trial of this case he cannot properly be convicted. I disagree with this contention. The government was required to prove only that the slips had existed, that they were numbers slips, and that the defendant had been carrying them. The government had no burden and made no attempt to prove the specific contents of the slips. Consequently, the best evidence rule has no application to the problem presented by the failure to produce the numbers slips in the present case. See IV Wigmore on Evidence, Sec. 1242 (3rd Ed.1940)3; In re Ko-Ed Tavern, 3 Cir., 1942, 129 F.2d 806, 810, 142 A.L. R. 357. The failure to produce the slips affected the weight rather than the competency of the testimony of the policemen. The jury chose to believe the policemen and the government's explanation of the absence of the slips, as it had a right to do.
On May 6, 1952, the sections of the Internal Revenue Code involved in the present case were held to be unconstitutional by Judge Welsh of this court. United States v. Kahriger, D.C., 105 F. Supp. 322. The decision of Judge Welsh was reversed and the constitutionality of the statute was upheld by a decision of the United States Supreme Court dated March 9, 1953. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. Defendant was arrested on October 10, 1952. The evidence in the case connects him with an offense on that day and with offenses during the period of three months immediately prior thereto. Consequently, all of defendant's gambling activities occurred between the time of Judge Welsh's decision and its reversal by the Supreme Court. Defendant contends that because his alleged violation of the statute occurred after the time the District Court had declared the statute unconstitutional and before the time this decision was reversed on appeal, he cannot be held guilty of a crime in violation of the statute, particularly since he is being tried for a crime which allegedly was committed in the same district in which the statute had been held unconstitutional by a judge of that...
To continue reading
Request your trial
-
Hanover Shoe, Inc. v. United Shoe Machinery Corporation
...there is no merit to this argument. See American Amusement Co. v. Ludwig, D. Minn.1949, 82 F.Supp. 265, 267; United States v. Calamaro, E.D.Pa.1956, 137 F. Supp. 816, 820, rev'd on other grounds, 3 Cir. 1956, 236 F.2d 182, aff'd 1957, 354 U.S. 351, 77 S.Ct. 1138, 1 L.Ed.2d 1394. Some of the......
-
Ostrosky v. State of Alaska
...matter of law, and to do so would have been incomprehensible in the face of the contrary, controlling authority. 19 In United States v. Calamaro, 137 F.Supp. 816 (E.D.Pa.), rev'd on other grounds, 236 F.2d 182 (3d Cir.1956), aff'd, 354 U.S. 351, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957), Calamar......
-
United States v. Calamaro
...the 'yellow' copy. The 'tissue' copy is given to the player when he places his bet, and the 'white' copy is retained by the writer. 3 137 F.Supp. 816. 4 See note 1, supra. 5 That the 'placing' and 'receiving' of a wager should be regarded as simply complementing one another is recognized by......
-
United States v. Alexander
...the best evidence rule into operation. 1 Jones, Evidence § 202 (4th ed. 1938). Another case cited by the Government, United States v. Calamaro, 137 F.Supp. 816 (E.D.Pa.1956), is of similar import. There the defendant, a pickup man in a numbers operation, was indicted and convicted of failin......