United States v. Hanon

• Decision Date: 08 June 1970
• Docket Number: No. 19519-19521.,19519-19521.
• Parties: UNITED STATES of America, Appellee, v. Eugene J. HANON, Appellant. UNITED STATES of America, Appellee, v. Gloria MEYER, Appellant. UNITED STATES of America, Appellee, v. John L. BOVERI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 101 (1970)

UNITED STATES of America, Appellee, v. Eugene J. HANON, Appellant.

UNITED STATES of America, Appellee, v. Gloria MEYER, Appellant.

UNITED STATES of America, Appellee, v. John L. BOVERI, Appellant.

Nos. 19519-19521.

United States Court of Appeals, Eighth Circuit.

June 8, 1970.

Stanley M. Rosenblum, of Rosenblum & Goldenhersh, St. Louis, Mo., for appellant Hanon; Merle L. Silverstein, St. Louis, Mo., on brief.

Daniel P. Reardon, Jr., St. Louis, Mo., for appellants Meyer and Boveri.

Sidney M. Glazer, Atty., Dept. of Justice, Washington, D. C., for appellee; Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., and Mark W. Perrin, Sp. Atty., Dept. of Justice Washington, D. C., on brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES, BLACKMUN, MEHAFFY, GIBSON, LAY, HEANEY and BRIGHT, Circuit Judges, en Banc.

VAN OOSTERHOUT, Chief Judge.

A panel of this court by opinion filed January 7, 1970, reversed the judgments of conviction in these cases. Pursuant to the affirmative vote of a majority of the active judges under Rule 35, Federal Rules of Appellate Procedure, a rehearing en banc has been ordered in these cases and the appeals have been heard by the court en banc.

Defendant John L. Boveri was charged in Counts I and II of an indictment with violating 18 U.S.C.A. § 1952 by unlawfully, willfully and knowingly engaging in gambling activities in violation of Missouri law through the use of the facilities of interstate commerce.

Boveri and defendants Gloria Meyer and Eugene J. Hanon in Count III were charged with conspiracy, under 18 U.S. C.A. § 371, to violate 18 U.S.C.A. § 1952.

Boveri was convicted by a jury on all three counts. Meyer and Hanon were convicted on Count III. Each of the defendants has taken this timely appeal from their convictions and the resulting sentences.

Each defendant has as a basis for reversal urged:

1. Error in failing to suppress evidence seized in searches made at each of their residences in violation of their Fourth and Fifth Amendments rights.

2. Failure to sustain motion for acquittal based on insufficiency of the evidence to support the conviction.

We affirm the convictions for the reasons hereinafter stated.

The intelligence agents of the Internal Revenue Service began an investigation of the gambling activities of defendant Boveri and others in April of 1967. Richard Sirmer, who had served as a clerk in Boveri's bookmaking operation, gave the officials information as to Boveri's gambling operations which an independent investigation by the agents showed to be reliable. Applications for search warrants, supported by detailed affidavits, were filed with the United States Commissioner, who on August 12, 1967, issued search warrants authorizing a search of the homes of Boveri, Meyer and Hanon for gambling paraphernalia. The warrant affidavits set forth probable cause for violation of 26 U.S.C.A. §§ 4101, 4411, 4412, 4901, 7201, 7203 and 7262. No mention was made of probable cause for violation of 18 U.S.C.A. §§ 1952 and 371. The warrants were served on July 13, 1967, and gambling paraphernalia was seized at each of the defendant's homes.

Thereafter, on July 28, 1967, criminal informations were filed against each defendant charging violation of 26 U.S.C. A. § 7203 — failure to pay occupational tax. After the Supreme Court decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, decided on January 29, 1968, the § 7203 charges against each defendant were dismissed on the motion of the United States Attorney.

On June 20, 1968, the indictment upon which the defendants were convicted was filed. Defendants each moved to suppress the evidence seized on the basis that the warrants were not issued upon probable cause, that the warrants were based upon charged violations of statutes which have been declared unconstitutional and that the Fourth and Fifth Amendment rights of the defendants had been violated. The motions to suppress were overruled and the evidence seized under the search warrants was received at the trial.

I.

Since the evidence seized in this case was seized under a warrant which alleged probable cause for violations of the taxing and registration statute and not the Travelers Act, the Fourth Amendment issue in this case is whether probable cause for a violation of a statute which is later declared subject to constitutional defense is enough to authorize a search and seizure, the fruits of which are offered into evidence for another offense.

The defendants claim that there was no probable cause for the issuance of the search warrant. Probable cause is based on the situation existing at the time of the issuance of the warrants. At such time, the controlling law was to be found in Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475, and United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. Under the holdings of the cases just cited, probable cause for the issuance of the warrants is clearly established.¹

The affidavits for the issuance of the search warrants were detailed and conformed to the requirements of Rule 41, Fed.R.Crim.P., and the governing law as stated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

To hold that probable cause cannot be based on a statute which was valid when the search warrants were issued would in effect apply the Marchetti and Grosso cases retroactively in a Fourth Amendment context. No retroactive effect on the probable cause issue should be given to Marchetti and Grosso for the reasons that such effect was rejected in Linkleter v. Walker, 381 U.S. 618, 619, 85 S.Ct. 1731, 14 L.Ed.2d 601 (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, not applied retroactively), and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576, denied retroactive application). As stated in Desist, "`there is no likelihood of unreliability or coercion present in a search-and-seizure case'; the exclusionary rule is but a `procedural weapon that has no bearing on guilt,' and `the fairness of the trial is not under attack.'" 394 U.S. 244, 250, 89 S. Ct. at 1034.

The purpose of the Fourth Amendment is to protect citizens against unnecessary intrusions into their privacy. Berger v. New York, 388 U.S. 41, 59, 87 S.Ct. 1873, 18 L.Ed.2d 1040; Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 18 L. Ed.2d 782; Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514. We hold that compliance with the provisions of Rule 41, providing for the issuance of a search warrant based on probable cause for a violation of a then valid statute, adequately protects the individual's right of privacy guaranteed by the Fourth Amendment. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930.

The fact that the warrants were based on gambling operations violative of revenue statutes and that the present convictions were based on violation of 18 U.S.C.A. § 1952 and conspiracy to violate § 1952 is not significant. It is established that evidence lawfully seized under a valid search warrant or as an incident to a lawful arrest may be used against a party on trial for a different offense. Gouled v. United States, 255 U.S. 298, 311, 41 S.Ct. 261, 65 L.Ed. 647;² Williamson v. United States, 5 Cir., 285 F.2d 65; Harris v. United States, 10 Cir., 151 F.2d 837, 841. See Abel v. United States, 362 U.S. 217, 240, 80 S.Ct. 683, 4 L.Ed.2d 668.

The court committed no error in refusing to suppress the seized evidence on Fourth Amendment grounds.

The Fifth Amendment privilege against self-incrimination provides: "No person * * * shall be compelled in any criminal case to be a witness against himself." The defendants make two privilege against self-incrimination arguments: (1) All defendants argue that because they did not incriminate themselves (register and pay the tax) the government was able to obtain evidence against them. They argue that the use of this evidence violates the privilege against self-incrimination because it is "punishing" them for refusal to incriminate themselves. (2) Defendants Boveri and Meyer argue that the evidence seized as a result of the search of their homes may not be used as evidence because it is testimonial in nature and thereby protected by the privilege against self-incrimination.

In support of their contention that they are being punished for not incriminating themselves, defendants rely largely upon the reasoning of Judge Frank A. Kaufman in Silbert v. United States, 282 F.Supp. 635, and a supplemental opinion at 289 F.Supp. 318. Judge Kaufman squarely holds "that the searches and seizures did not, when they were made, violate the proscriptions of the Fourth Amendment or of Federal Criminal Rule 41." 282 F.Supp. 635, 646. He then points out that the Government has been guilty of no improper conduct in obtaining the warrant and making the seizures, and goes on to say:

"However, the non-culpability of the Government in relation to the issues considered by the Court concerning the raids in these cases does not answer the questions raised herein in a Fifth Amendment context. The opinions in Marchetti and Grosso discuss policies unrelated to Government wrongdoing and lay great stress upon the fact that the federal wagering tax statutes and the Government\'s enforcement machinery in connection therewith not only create a federal statutory scheme, but also are keyed to aiding the states in connection with ascertaining and successfully prosecuting violations of comprehensive state and local wagering prohibitions. Marchetti and Grosso both emphasize that one of the principal bases for the doctrines therein enunciated is that a person who is subject to the wagering tax provisions of

...