United States v. Comi

• Decision Date: 21 September 1964
• Docket Number: No. 9270.,9270.
• Citation: 336 F.2d 856
• Parties: UNITED STATES of America, Appellee, v. Louis H. COMI, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

336 F.2d 856 (1964)

UNITED STATES of America, Appellee, v. Louis H. COMI, Appellant.

No. 9270.

United States Court of Appeals Fourth Circuit.

Argued April 16, 1964.

Decided September 21, 1964.

Morgan L. Amaimo, Baltimore, Md., for appellant.

Robert W. Kernan, First Asst. U. S. Atty., for appellee.

Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

Louis H. Comi (hereinafter Comi or defendant) was convicted by a federal jury on all four counts of an indictment charging him with conducting a lottery operation and in engaging in receiving wagers in a lottery operation without having paid the special occupational tax, without securing the required occupational tax stamp, without registering to carry on a lottery business and without furnishing requisite information concerning the lottery operation to the District Director of Internal Revenue. On this appeal he assigns a number of grounds for reversal.

Comi asserts first that the District Court erred in denying his motion to suppress and in admitting certain evidence which had been procured by federal internal revenue agents following his arrest without a warrant. Included were $218 in United States currency (the serial numbers of which had been previously recorded by the agents) which an agent, Richard Pozecki, had paid Comi as prior "losses" on horse racing and numbers bets immediately before Comi's arrest, and certain oral statements which defendant made to the officers immediately following his arrest. He contends that his arrest without a warrant was illegal because the offense with which he was charged was a misdemeanor and was not committed in the presence of the officer who placed him under arrest. We find this contention to be without merit.

The evidence disclosed that on June 23, 1963, Pozecki, a special agent of the Intelligence Division of the Internal Revenue Service, assigned in an undercover capacity to investigate suspected gambling and racketeering activities carried on in violation of the Internal Revenue Laws, entered the Gay Nineties Bar & Restaurant in Baltimore, Maryland, which was managed by defendant. After identifying himself as a person who had placed several bets with Comi during the previous week, Pozecki tendered to him $220 in the marked bills, indicating clearly that they were in payment of "losses" resulting from gambling bets. Defendant accepted the money and placed it in his pocket after giving Pozecki $2 in change. Pozecki left the bar and went to an automobile parked a short distance away where two other investigators or special agents of said Intelligence Division were waiting and obtained his badge and identification papers. Immediately thereafter Pozecki, accompanied by the other agents, Metcalf and Schafer, returned to defendant's bar. Pozecki identified himself as an agent of the Intelligence Division of the Internal Revenue Service and Metcalf, after identifying himself, instructed defendant to accompany the agents to the other side of the room where he informed Comi that he was under arrest and proceeded to search him. The currency which Pozecki had given him was found in defendant's pocket. Shortly after his arrest, Comi admitted to the agents that his wife had been taking bets over the telephone and acknowledged that he was familiar with federal tax stamp requirements.

26 U.S.C.A. § 7608(b) (1), (2) (B) empowers criminal investigators of the Intelligence Division of the Internal Revenue Service to make arrests without warrants for violations of the Internal Revenue Laws committed in their presence.¹

At the time Comi accepted the $218 in cash, as wagering losses, Pozecki knew that Agent Schafer had, on several successive days, placed bets with someone at a telephone number listed to Comi's residence and Agent Metcalf, after investigation, had informed Pozecki that defendant had not secured a Special Occupational Tax Stamp. With this background information, defendant's acceptance of the money after the conversation concerning the wagering losses indicated to Pozecki that defendant was violating the Internal Revenue Laws in his presence. He had statutory authority to arrest defendant on the spot. We do not believe Pozecki lost this authority because of his absence from the defendant for a few moments for the purposes of securing his badge and identification and the protective assistance of two other agents who were waiting close by. The delay was manifestly reasonable and was for purposes associated with the arrest. See Annot., Arrest without Warrant, 58 A.L.R.2d 1056.

The payment to defendant in marked bills occurred in his bar. Pozecki could not be sure that he would not be opposed by bar customers if he asserted his authority to arrest the proprietor without any means of identification or badge of authority to display. Possibly, arresting the defendant immediately would have exposed Pozecki to unnecessary danger. Under such circumstances a rule of reasonableness should control. Promptness should not be the only or the governing consideration where, as here, the continuity of action to effect the arrest was not broken. Nor do we think it material, as defendant contends, that it was Agent Metcalf and not Pozecki who actually told Comi that he was under arrest. No such declaration is required to constitute an arrest. To constitute an arrest there must be an actual or constructive seizure or detention of the person, performed with intention to effect an arrest, so understood by the person detained, and the restraint must be under real or pretended legal authority. See, generally, 5 Am. Jur.2d 695, Arrest § 1. See, also, Jenkins v. United States, 161 F.2d 99 (10 Cir. 1947).

Pozecki returned to the defendant's bar, a place of business open to the public, in company with the two agents who were unknown to Comi. They were not, in any sense, trespassers. When they entered Comi asked, "Hey, Rich, what's the matter, Rich?" Since Agents Metcalf and Schafer were unknown to him, it is obvious that his query was addressed to Richard Pozecki who then immediately revealed his identity as did the other agents.

The defendant was instructed to accompany the agents to the other side of the room. By acquiescing he acknowledged the apparent authority of Pozecki to detain him and it is reasonable to conclude that he was aware of the restraint upon his freedom of movement. He was then notified that he was under arrest and it would seem to be immaterial that the notification came from one of the assisting agents in Pozecki's presence rather than from Pozecki himself. That there was an intention on the part of Pozecki to effect an arrest is obvious from his conduct and the mere fact that Pozecki had the assistance of his two fellow officers will not render the arrest invalid. It follows that the search of Comi's person, incident to a legal arrest, was lawful and the evidence sought to be suppressed was properly admitted.

Defendant's next contention is that the District Court erred in refusing to rule that entrapment had been established as a matter of law and further erred in refusing to instruct the jury on the issue of entrapment.

At trial defendant testified that he had agreed to accept numbers bets only after the continued insistence and pleading of one Harry Anapa who worked for him part time as a repairman of music boxes and cigarette vending machines. He further testified that had it not been for Anapa's persistent pleas he would not have agreed to accept wagers. Mrs. Comi, defendant's wife (who actually accepted the bets over the telephone), first testified that her husband told her of Anapa's continued requests and directed her to accept the bets. She later changed her testimony and insisted that the defendant was not aware that she was accepting wagers. The evidence adduced at trial disclosed, as hereinbefore related, that early in 1963 Agent Pozecki began working as an undercover investigating agent for the Intelligence Division of the Internal Revenue Service in the Baltimore area in an effort to obtain information pertaining to gambling and racketeering activities. In early March 1963 Pozecki, acting in that capacity, was introduced by an informer to Anapa who, it was believed, would be helpful in providing information concerning such activities. Pozecki testified that he did not reveal his official identity to Anapa but told him instead that he was a "lay-off man" working for another and was interested in "laying off" any action his principal couldn't handle. Pozecki offered to give Anapa a percentage of the bets if Anapa would supply him with telephone numbers where he could place horse and numbers wagers. Anapa at first declined the offer but later accepted it. Pozecki did not specify any particular telephone numbers but told Anapa he was interested in all he could supply. During the course of approximately three months, Pozecki met with Anapa on several occasions and pursuant to their agreement Anapa gave him several telephone numbers. For his services in supplying this information, Anapa was paid thirty-five to fifty dollars a week plus weekly expenses which ranged from five to fifteen dollars.

One of the numbers which Anapa furnished Pozecki was listed at Comi's residence. (There were actually three telephone numbers registered to the residence and five telephones were located there.) On each day from June 18 through June 22, 1963, Agent Schafer, in Pozecki's presence, called defendant's number, identified himself by the code name of "Harry" and placed bets. Mrs. Comi answered the telephone and accepted the bets. The total amount bet over the five day period was $218. Anapa, who was called by the defense as a witness, refused to testify at trial on the ground that his testimony might tend to incriminate him. According to Pozecki's undisputed testimony, Anapa was never aware that he, Pozecki, was a government agent.

Since the sole evidence that defendant agreed to accept...