United States v. Markis, No. 514

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtWATERMAN, FRIENDLY and SMITH, Circuit
Citation352 F.2d 860
PartiesUNITED STATES of America, Appellee, v. Stanley Joseph MARKIS, Appellant.
Decision Date29 October 1965
Docket NumberDocket 29585.,No. 514

352 F.2d 860 (1965)

UNITED STATES of America, Appellee,
v.
Stanley Joseph MARKIS, Appellant.

No. 514, Docket 29585.

United States Court of Appeals Second Circuit.

Argued June 8, 1965.

Decided October 29, 1965.


352 F.2d 861
COPYRIGHT MATERIAL OMITTED
352 F.2d 862
Charles Hanken, Bridgeport, Conn. (Philip Baroff, Bridgeport, Conn., on brief), for appellant

Howard R. Moskof, Asst. U. S. Atty. (Jon O. Newman, U. S. Atty.), for appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

Markis appeals from a judgment of the Distict Court for Connecticut convicting him, after trial before Chief Judge Timbers and a jury, on a two-count information under 26 U.S.C. § 7203 of wilful failure to pay the special occupational gambling tax provided in § 4411 and to register as required in § 4412. He was sentenced to imprisonment for one year and a $10,000 fine on the first count and to two years probation on the second. His arguments as to the unconstitutionality of the statutes are dealt with in United States v. Costello, 352 F.2d 848 (2 Cir. 1965). Although he now presses the claim of unfair publicity, he requested trial at Bridgeport, and made no motion for a change of venue or a continuance. No juror selected to try him had read of his arrest, none of the publicity concerning the trials preceding his had referred to him, and he made no motion relating to publicity until after verdict. Apart from all else, this came too late, United States v. Costello, supra.

Special Agent Ripa of the I.R.S. testified that on many occasions in August and September, 1964, he placed bets with John Mento in the latter's service station, observed Mento dial telephone number 336-0254, and heard him speak with a man whom, on almost all occasions, he

352 F.2d 863
asked for or addressed as "Joe," and repeat the wagers. Records of the telephone company showed that number 336-0254 was located in apartment C-6, 2225 Main Street, Bridgeport. It was a number in the name of Mrs. Peggy Donofrio; no one by that name could be identified. Markis had long occupied the apartment, which was listed in the name of F.Scinto, also unknown, and frequently paid the rent. He was observed entering and leaving the apartment in the period when the bets were being placed. About July 27 he was introduced to Ripa by the nickname "Stash."

On affidavits of agents reciting the substance of the above and further details, including Markis' failure to purchase an occupational tax stamp, a United States Commissioner, on October 1, 1964, issued a warrant commanding a search of the apartment for and seizure of "certain records, papers, writings, slips, books, newspapers primarily reporting results and information of horse races and other sporting activity, markings, writing materials, racing forms, cash monies, machines and equipment" being used in violation of the gambling tax laws. On October 5, 1964, the agent who had made the principal affidavit swore before the same Commissioner to a complaint which alleged "That on or about October 8, 1964," John Doe, also known as Joe or Stash, engaged in the business of accepting wagers without payment of the occupational stamp tax; the complaint contained the substance of what had been set forth in the search warrant affidavits although in more abbreviated form and without the statement that a search of the records had revealed no purchase of a stamp by Markis. On the same day the Commissioner issued a warrant of arrest.

The search and arrest warrants were executed by Special Agent Ryan, accompanied by other officers, on October 8 about 1:15 P.M. After knocking and making proper announcement, Ryan heard movement inside but the door was not opened. An attempt to force entry with a sledge hammer failed, the door having been barricaded. Shortly thereafter the officers heard the barricade being removed, and the door was opened by Markis, wearing pajama bottoms and one wet slipper; he identified himself, stating his name and acknowledging he was known as "Stash" or "Joe." Ryan gave Markis both warrants to read. He found a quantity of paraphernalia useful for the conduct of a gambling business, the telephone, bearing number 336-0254, torn out of the wall and with the amplifier separated from the receiver, and, in the bathroom, the mate to the wet slipper. The telephone having been repaired, unknown voices called and sought to place bets with "Stash" or "Joe." Flushing of the toilet trap with the aid of a plumber yielded slips of paper which were identified as notations by gamblers to record bets. While still in the apartment, Ryan interviewed Markis, after explaining "that he had the rights under the Fifth Amendment against self-incrimination, and that he didn't have to answer any questions that I asked him." Ryan testified, without objection:

"I asked him why he hadn\'t purchased a wagering stamp, and he said he didn\'t need one because he doesn\'t take bets, that he only gambles for a living.
* * * * * *
"And I asked him if he was accepting wagers, would he have registered and purchased a Federal wagering stamp, and he said he would have."

(1) Markis claims it was error to admit Ripa's testimony as to Mento's placing of bets by telephone in the absense of identification of Markis' voice as that on the receiving end. It is plain that Ripa could not be allowed to testify as to what Mento said the receiver said; Mento alone could do that. See Van Riper v. United States, 13 F.2d 961, 968 (2 Cir.), cert. denied, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926); United States v. Benjamin, 328 F.2d 854, 861 (2 Cir.), cert. denied, 377 U.S. 953, 84 S. Ct. 1631, 12 L.Ed.2d 497 (1964). But Mento's dialing of 336-0254 and his

352 F.2d 864
placing of bets, including language used in doing so, were not declarations introduced for their truth, and the hearsay rule thus has no application to Ripa's testimony relating to these events. See United States v. Press, 336 F.2d 1003, 1011-1012 (2 Cir.), cert. denied, 379 U.S. 965, 85 S.Ct. 658, 13 L.Ed.2d 559 (1964); United States v. Ross, 321 F.2d 61, 68-69 (2 Cir.), cert. denied, 375 U.S. 894, 84 S. Ct. 170, 11 L.Ed.2d 123 (1963); McCormick, Evidence §§ 225, 228 (1954). If Mento's remarks addressing the unseen listener as "Joe" were to be regarded as hearsay on the basis, perhaps overnice, that they amounted to declarations by Mento that he was talking to someone who acknowledged or whose voice confirmed being "Joe," the statements would come within the hearsay exception for utterances made simultaneously with the event being perceived — an exception normally classified under res gestae, McCormick, supra, § 273; Uniform Rule of Evidence 63(4). It is true that, standing alone, all this testimony, even though not banned by the hearsay rule, would be objectionable as irrelevant. But that deficiency was removed by the evidence that the telephone bearing the number 336-0254 was in the apartment Markis occupied and his admission to Agent Ryan that he was known as "Joe."1 This factual chain afforded competent circumstantial evidence that Markis was indeed the man with whom Mento was placing bets

(2) Markis contends that the search warrant was invalidly issued, that the search and seizure went beyond "the means of committing" the offense, F.R. Cr.P. 41(b) (2), and that the arrest warrant was invalid so that...

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48 practice notes
  • U.S. v. Southland Corp., Nos. 479
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 23, 1985
    ...a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater." See also United States v. Markis, 352 F.2d 860, 865-67 (2 Cir.1965), vacated on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864 We fail to see what this additional element would......
  • Com. v. Thomas
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 9, 1978
    ...States v. Klugman, 506 F.2d 1378, 1380-81 (8th Cir. 1974); United States v. Harary, 457 F.2d 471 (2d Cir. 1972); United States v. Markis, 352 F.2d 860, 865-67 (2d Cir. 1965). A second basis for my disagreement with the Garcia rationale is that the proposition that the jury is entitled to be......
  • People v. Mangialino
    • United States
    • New York County Court
    • October 17, 1973
    ...the Zone of Privacy, 73 Dickinson L.Rev. 1, 13, citing People v. Bosco, 56 Misc.2d 1080, 290 N.Y.S.2d 491, and United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965) vacated on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864; see also, People v. Rainey, 14 N.Y.2d 35, 248 N.Y.S......
  • United States v. Bozza, No. 216
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 1, 1966
    ...from the Hillsdale Post Office in the possession of Guzzo and the other defendants named in the complaint. See United States v. Markis, 352 F.2d 860, 864 (2 Cir. 1965). Finally, although Judge Mishler did not find it necessary to go into the subject, it is patent there was ample basis for t......
  • Request a trial to view additional results
48 cases
  • U.S. v. Southland Corp., Nos. 479
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 23, 1985
    ...a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater." See also United States v. Markis, 352 F.2d 860, 865-67 (2 Cir.1965), vacated on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864 We fail to see what this additional element would......
  • Com. v. Thomas
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 9, 1978
    ...States v. Klugman, 506 F.2d 1378, 1380-81 (8th Cir. 1974); United States v. Harary, 457 F.2d 471 (2d Cir. 1972); United States v. Markis, 352 F.2d 860, 865-67 (2d Cir. 1965). A second basis for my disagreement with the Garcia rationale is that the proposition that the jury is entitled to be......
  • People v. Mangialino
    • United States
    • New York County Court
    • October 17, 1973
    ...the Zone of Privacy, 73 Dickinson L.Rev. 1, 13, citing People v. Bosco, 56 Misc.2d 1080, 290 N.Y.S.2d 491, and United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965) vacated on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864; see also, People v. Rainey, 14 N.Y.2d 35, 248 N.Y.S......
  • United States v. Bozza, No. 216
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 1, 1966
    ...from the Hillsdale Post Office in the possession of Guzzo and the other defendants named in the complaint. See United States v. Markis, 352 F.2d 860, 864 (2 Cir. 1965). Finally, although Judge Mishler did not find it necessary to go into the subject, it is patent there was ample basis for t......
  • Request a trial to view additional results

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