United States v. Millo

• Decision Date: 15 December 1965
• Docket Number: Docket 29743.,No. 96,96
• Parties: UNITED STATES of America, Appellee, v. Pellegrino MILLO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

354 F.2d 224 (1965)

UNITED STATES of America, Appellee, v. Pellegrino MILLO, Appellant.

No. 96, Docket 29743.

United States Court of Appeals Second Circuit.

Argued October 8, 1965.

Decided December 15, 1965.

Jon O. Newman, U. S. Atty., for the District of Connecticut, Hartford, Conn., for appellee.

Edward G. Burstein, Jerome Goldman, Bridgeport, Conn., for appellant.

Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

WATERMAN, Circuit Judge.

This appeal is one of several that have arisen out of raids conducted on October 8, 1964 in Bridgeport, Connecticut, upon alleged gambling establishments in that city.

Appellant was arrested in a raid at his restaurant that day. He was found guilty after a jury trial in the United States District Court for the District of Connecticut of having wilfully failed to pay the special gambling occupational tax required by 26 U.S.C. § 4411 and of having wilfully failed to register as required by 26 U.S.C. § 4412, both omissions being in violation of 26 U.S.C. § 7203.

The issues presented upon appeal, all of which were properly preserved below, are: Whether these wagering tax statutes violate one's privilege against self-incrimination guaranteed by the Fifth Amendment; whether the statutes are void for vagueness in that they create a circular scheme of such a nature that one cannot anticipate one's liability to either pay a tax or to register; whether the sentence of one year's imprisonment and a committed fine of ten thousand dollars on the count charging failure to pay the occupational tax was imposed because the sentencing judge viewed this statute as one directed toward the punishment of gamblers rather than directed toward the raising of revenue; and, lastly, whether there was sufficient evidence introduced at trial by the Government to prove either the defendant's wilfulness or that he was engaged in the business of accepting wagers.

We take up these issues in reverse order. There was sufficient evidence from which the jury could determine that appellant was in the business of accepting wagers and that he wilfully failed to purchase the wagering tax stamp. A special agent of the Internal Revenue Service had placed wagers with appellant on three separate occasions in August, September and October 1964; when the restaurant was raided tally sheets and numbers slips in appellant's handwriting were seized by the raiding officers; and while the raid was being conducted there were telephone calls that the agents answered from persons desiring to place series of bets and who asked for appellant by his nickname. And, too, defendant assured the arresting officers, while stoutly maintaining that he took no bets, that he well knew the wagering tax stamp requirement required of those who were engaged in the wagering business.

The sentence imposed was the maximum provided by Congress in 26 U.S.C. § 7203, so it was...