United States v. Markis

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation352 F.2d 860
Docket NumberDocket 29585.,No. 514,514
PartiesUNITED STATES of America, Appellee, v. Stanley Joseph MARKIS, Appellant.
Decision Date29 October 1965

COPYRIGHT MATERIAL OMITTED

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 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 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 all fruits of the arrest must be excluded.2

The search warrant was valid under the criteria stated in the Supreme Court's most recent decision on the subject, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The attack on the arrest warrant based on the point that, in obvious error, the complaint alleged Markis had committed the offense three days in the future requires no discussion. Cf. United States v. Zambito, 315 F.2d 266, 269 (4 Cir.), cert. denied, 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423 (1963). We find no other sufficient basis for holding the arrest warrant defective. A complaint, like affidavits supporting a search warrant, must be read "in a commonsense and realistic fashion." United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 746. Furthermore, despite the statement in F.R.Cr.P. 4, "If it appears from the complaint that there is probable cause to believe," we are by no means convinced that the Rules meant to prohibit a Commissioner from relying on affidavits, relating to the same person and the same offense, which he had considered in issuing a search warrant only four days before; the fact that the Advisory Committee on the Criminal Rules has recommended an amendment expressly permitting the necessary showing for an arrest warrant to be made by affidavits, 31 F.R.D. 665, 671; 34 F.R.D. 411, 415, by no means establishes that the existing Rule would not be construed to permit this.

The remaining issue under this heading is the scope of the search and seizure. Although the objects seized were within the description of the warrant, that would not be determinative if its reach exceeded the bounds permitted by F.R.Cr.P. 41(b) (2) or the Fourth Amendment. We entertain no doubt that sporting newspapers, slips on which bets were being recorded, pens for recording bets, the calendar for checking races, and the much abused telephone were "instrumentalities and means by which" the crime here charged — the conduct of a wagering business without payment of the tax or registration — was being committed. Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). See Rutherford v. United States, 264 F.2d 180 (9 Cir.), cert. denied, 359 U.S. 1003, 79 S.Ct. 1140, 3 L.Ed.2d 1031 (1959); United States v. Shaffer, 291 F.2d 689 (7 Cir.), cert. denied, 368 U.S. 915, 82 S.Ct. 192, 7 L.Ed.2d 130 (1961). The issue is thus narrowed to the bills for rent and for telephone service. To support their seizure the Government invokes Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 72 L.Ed. 231 (1927), where the Court sanctioned the seizure of utility bills of an...

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