United States v. Interbartolo, Cr. No. 60-50-J

• Decision Date: 07 March 1961
• Docket Number: 60-53-J.,Cr. No. 60-50-J
• Citation: 192 F. Supp. 587
• Parties: UNITED STATES of America v. Michael A. INTERBARTOLO. UNITED STATES of America v. Stephen J. SARDINA.
• Court: U.S. District Court — District of Massachusetts

192 F. Supp. 587

UNITED STATES of America v. Michael A. INTERBARTOLO.

UNITED STATES of America v. Stephen J. SARDINA.

Cr. Nos. 60-50-J, 60-53-J.

United States District Court D. Massachusetts.

March 7, 1961.

Elliot L. Richardson, U. S. Atty., Arlyne F. Hassett, Asst. U. S. Atty., Boston, Mass., for the United States.

DiMento & Sullivan, Francis J. DiMento, Boston, Mass., for defendants Interbartolo and Sardina.

JULIAN, District Judge.

Each defendant filed a motion for the return of property alleged to have been seized illegally from his person and from his automobile by government officers and to suppress the use of such property, and of admissions alleged to have been illegally obtained from him, as evidence against him in any criminal proceeding. Interbartolo's motion also includes property allegedly taken from premises in which he was present.

The motions were heard together.

On October 30, 1959, Deputy United States Marshal Mahoney, in conjunction with special agents of the Intelligence Division of the Internal Revenue Service, conducted a raid at Chick's Bargain Shoe Store in East Boston. The raid had been planned by members of the Intelligence Division and was carried out under their supervision.

Chick's Bargain Shoe Store is located on the ground floor of a three-story building on Meridian Street near the intersection of Meridian and Havre Streets. The front entrance to the store is on Meridian Street. The back door is on Havre Street.

On the morning of October 30, 1959, special agent Sawtelle applied to the United States Commissioner for a search warrant for Chick's Bargain Shoe Store and for several warrants of arrest.

Before he was sworn, Sawtelle orally informed the Commissioner that special agents of the Intelligence Division had conducted surveillances in the vicinity of Chick's and at other locations in East Boston during the preceding three weeks from October 6 to 29, 1959. Sawtelle stated that he personally observed number pool wagers being placed at various locations in East Boston. In each instance original betting slips were put in white envelopes and, at more or less regular intervals each day, one Ralph DeAngelis collected the envelopes and brought them to Chick's Bargain Shoe Store. On October 21, 1959, Sawtelle observed DeAngelis enter Chick's. He looked through the open slats of the venetian blind that covered the show window on the front of the store and saw DeAngelis, the defendants Interbartolo and Sardina, and other persons grouped around a table with betting slips and envelopes spread out before them.

Observations made in the vicinity of Chick's indicated that between the hours of 12:30 and 3:30 p. m., daily, a steady stream of traffic converged on Chick's Bargain Shoe Store. On several occasions during the first week of surveillance two men were observed near the intersection of Meridian and Havre Streets making collections from passing motor vehicles and bringing them into Chick's. Several automobiles were observed parked in the vicinity of the store at about the same time each day. One of these automobiles, a Chevrolet sedan, 1959 Mass. Reg. No. 664822, was registered to the defendant Interbartolo; another, a Buick sedan, 1959 Mass. Reg. No. X-2194, was registered to the defendant Sardina, who was identified by Sawtelle as the operator of the car with registration number X-2194. Sardina parked his automobile on Meridian Street in front of Chick's and was frequently observed carrying wagering materials into the store. On one occasion, Sardina parked near a variety store and delivered wagering materials to DeAngelis who, in turn, delivered them to Chick's. The defendant Interbartolo was identified by Sawtelle as the operator of the car with registration number 664822. Interbartolo spent long periods of time at Chick's during the day. He frequently parked his automobile on Havre Street in the vicinity of the store's back door. On rare occasions he was seen carrying wagering materials.

After giving the Commissioner oral information, Sawtelle swore before him and signed in his presence a complaint which charged Richard Roe,

"white male, about 38 to 42 years of age, about 5'8" or 5'9" tall, about 160 lbs., long nose, medium complexion, brown hair, frequently observed driving Chevrolet Impala Sedan, Mass. Reg. 664822, * * *"

with violation of 26 U.S.C. § 7203. The complaint alleged,

"The undersigned complainant being duly sworn states: That between on or about October 6, 1959, and on or about October 29, 1959, inclusive, at East Boston, in the District of Massachusetts, Richard Roe, above-described, did engage in the business of accepting wagers, as defined in 26 U.S.C. § 4421, and did engage in receiving wagers for or on behalf of a person liable for the tax on wagers imposed by 26 U.S.C. § 4401, having wilfully failed, prior to engaging in said business and receiving said wagers, to pay the special occupational tax as required by 26 U.S.C. § 4411, due and owing to the United States for the year ending June 30, 1960; in violation of 26 U.S.C. § 7203."

Beneath this paragraph and above Sawtelle's signature the following assertion appeared:

"The above statements are made upon the personal knowledge of the undersigned."

On this complaint the Commissioner, on October 30, 1959, issued a warrant for the arrest of Richard Roe. The warrant was directed against the defendant Interbartolo.

Sawtelle executed in like manner another complaint which charged one John Doe,

"white male, about 45 to 48 years of age, about 5'8" tall, about 160 to 170 lbs., long nose, sharp features, frequently observed driving black and beige Buick Sedan, Mass. Reg. X2194, * * *"

with violation of 26 U.S.C. § 7203. The complaint alleged,

"The undersigned complainant being duly sworn states: That between on or about October 15, 1959, and on or about October 29, 1959, inclusive, at East Boston, in the District of Massachusetts, John Doe, above-described, did engage in the business of accepting wagers, as defined in 26 U.S.C. § 4421, and did engage in receiving wagers for or on behalf of a person liable for the tax on wagers imposed by 26 U.S.C. § 4401, having wilfully failed, prior to engaging in said business and receiving said wagers, to pay the special occupational tax as required by 26 U.S.C. § 4411, due and owing to the United States for the year ending June 30, 1960; in violation of 26 U.S.C. § 7203."

This complaint contained the same assertion, namely:

"The above statements are made upon the personal knowledge of the undersigned."

A warrant for the arrest of John Doe was issued by the Commissioner on October 30, 1959. The warrant was directed against the defendant Sardina.

The Commissioner at the same time also issued a search warrant for Chick's Bargain Shoe Store and warrants for the arrest of other persons.

The defendants do not question the validity of the search warrant.

No search warrant was applied for or issued for the Interbartolo or Sardina automobile.

A list of the automobiles to be seized by agents of the Intelligence Division under 26 U.S.C. § 7302 was prepared at least 24 hours before the raid. The Interbartolo and Sardina cars were included in the list.

Specific functions were assigned to the several agents participating in the raid. Group assistant Pastore was in charge of the raid. Special agent DeLuca was to be in charge of operations inside the store when Pastore was not present. Special agent Sawtelle was placed in charge of the interrogation of persons found on the premises. Special agent Daley was to be in charge of the "street detail" that was to seize the automobiles described in the list.

The defendants concede for the purposes of this hearing that authority to seize any property subject to forfeiture to the United States under any provision of title 26 U.S.C. had been delegated by the Secretary of the Treasury to the agents of the Internal Revenue Service.

On the morning of October 30, 1959, press, radio, and television representatives were notified by the Internal Revenue Service that a raid was planned for that afternoon. Approximately 30 newsmen met with special agents of the Intelligence Division in the parking lot of the Howard Johnson's Restaurant at Wellington Circle in Medford at 12:15 p. m. and were briefed. After lunch the agents and newsmen proceeded by predetermined routes to Chick's. They arrived at Chick's at approximately 2 p. m.

Deputy marshal Mahoney and special agent Sawtelle entered the back door of Chick's at 2 p. m. The door was unlocked. No force was required to open it.

Eight men, including the defendant Interbartolo, were in the store when Mahoney entered.

Mahoney held a badge in his right hand and the search warrant in his left hand. Immediately after entering the premises he said,

"I am the United States marshal. I have some federal officers. There are federal officers with me. And I have a search warrant for the premises. Now fellows, stay put until we get this thing cleared up."

At the same time, Pastore, DeLuca, and special agent Gretsky entered Chick's through the front door.

Deputy marshals stationed themselves at the front and rear doors. A deputy marshal remained at each door throughout the afternoon.

The store, approximately 20 by 12 feet, was barren of furniture, merchandise, and equipment commonly associated with a shoe store or any other type of store. It contained three small tables, several chairs, one telephone, and a trash barrel.

In addition to the search warrant, Mahoney had several warrants of arrest in his possession, including the "Richard Roe" and "John Doe" warrants described above.

The premises were crowded and noisy. The defendant stood with some other men against the back wall of the store. He observed the search being made. He watched while special agents Sawtelle and Gretsky interrogated and searched each of the other men found in the store. He observed Pirrello (a defendant in a companion case),...