United States v. Dubin, Crim. No. 62-233.

• Decision Date: 03 May 1963
• Docket Number: Crim. No. 62-233.
• Citation: United States v. Dubin, 217 F.Supp. 206 (D. Mass. 1963)
• Parties: UNITED STATES of America v. Nathan DUBIN, Abraham Hershman, Steven Roomian, Nathan Cooperstein, Samuel Berkowitz, Jack Lubell, Thomas Anselmo.
• Court: U.S. District Court — District of Massachusetts

217 F. Supp. 206

UNITED STATES of America v. Nathan DUBIN, Abraham Hershman, Steven Roomian, Nathan Cooperstein, Samuel Berkowitz, Jack Lubell, Thomas Anselmo.

Crim. No. 62-233.

United States District Court D. Massachusetts.

May 3, 1963.

W. Arthur Garrity, Jr., U. S. Atty., William F. Looney, Jr., Asst. U. S. Atty., for the United States.

Jackson J. Holtz, Boston, Mass., for defendant Nathan Dubin.

Walter J. Hurley and George F. Hurley, Boston, Mass., for defendant Steven Roomian.

Francis J. DiMento, Boston, Mass., for defendant Abraham Hershman.

Samuel Leader, Chelsea, Mass., for defendant Samuel Berkowitz.

Max Singer, Boston, Mass., for defendants Jack Lubell, Nathan Cooperstein and Thomas Anselmo.

Cornelius J. Sullivan, Holtz, Sullivan & Zonderman, Boston, Mass., for defendant Thomas Anselmo.

FRANCIS J. W. FORD, District Judge.

Defendants in this case move under Rule 41(e) to suppress certain evidence seized in the course of the execution of certain search warrants or taken from the defendants at the time of their arrest. (Defendant Roomian has waived his motion to suppress solely as to property taken from him at the time of his arrest.) The search warrants involved were issued for the search of two floors of a building at 353 Broadway in Chelsea, and of Harmony Bar and Cocktail Lounge and the Topside Billiards, both located on Fifth Street in Chelsea.

The application for the search warrant at 353 Broadway charged that there was concealed on the premises paraphernalia commonly used in the business of accepting wagers. It was supported by a lengthy affidavit of D'Alessandro, a Special Agent, Intelligence Division, Internal Revenue Service, in which are set out the observations of the agents as to the activities of certain described individuals who daily visited various places in Chelsea where the agents had placed wagers or seen wagers being placed, who carried brown paper bags from these locations to a service station from which larger paper bags were taken to 353 Broadway, where some or all of the persons described gathered regularly every afternoon for a period of two to two and one-half hours. There is also an affidavit of another Special Agent that a search of the records of the District Director, Internal Revenue Service, at Boston disclosed no record of the registration of any person as engaging in the business of accepting wagers at 353 Broadway.

The facts stated in the D'Alessandro affidavit clearly furnish reasonable ground for believing that the premises at 353 Broadway were being used as a so-called "bank" where lottery slips were collected and evaluated. There is nothing, however, to support any belief that the lottery operation involved was being carried on in violation of the federal wagering tax statutes. The fact that no one was registered as being in the business of accepting wagers at that address is irrelevant, since there is no statement in the affidavit that wagers were ever accepted at that place. Consequently this was not a place where the business of accepting wagers was actually being carried on, and did not have to be registered as a place of business. See the unreported opinion of Wyzanski, J. in United States v. One 1959 Chevrolet Four-Door Hardtop Impala, D.Mass. MC No. 60-25-W. There is no affidavit to indicate that no one was registered as being in the business of accepting wagers at the various places where the affidavit alleges wagers were made.

In the case of the search warrants for the Harmony Bar and Cocktail Lounge and the Topside Billiards the affidavit sets forth in each case that the agent has reason to believe that on the premises "There is now being concealed certain property, namely, books, records, papers, notebooks, pencils, memoranda sheets, racing forms (so-called), money and other paraphernalia commonly used in the business of accepting wagers, which are being held and possessed in violation of Title 26, U.S.Code, Sections 4401, 4411, 4412 and 7203, in that the special tax required by Section 4411 has not been paid for the fiscal year ending June 30, 1962." In support of this there is an affidavit of the agent that certain named or described persons "did accept wagers from the complainant" on the premises in question and an affidavit that a search of the records of the District Director fails to disclose that any person or persons has registered as being in the business of accepting wagers at the address described.

The issue here is whether the facts set forth in these complaints and the supporting affidavits would justify a finding that there was reasonble cause to believe that gambling paraphernalia used or intended to be used in violation of the wagering tax act were concealed on the premises in question. The essential statement of the affidavits is that on each of these premises certain persons accepted wagers from a special agent. First of all, there is no indication of the type of wager, and hence no factual basis for believing that the wager placed was one which fell within the statutory definition of 26 U.S.C.A. § 4421. More serious, however, is the absence of any statement of the circumstances which would afford any basis for believing that any gambling...