United States v. Nicholson

• Decision Date: 24 May 1962
• Docket Number: No. 14567 and 14807.,14567 and 14807.
• Citation: 303 F.2d 330
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Gilbert NICHOLSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Billy Gilbert NICHOLSON, Claimant of $7,198.00 in United States Money, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

303 F.2d 330 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Billy Gilbert NICHOLSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Billy Gilbert NICHOLSON, Claimant of $7,198.00 in United States Money, Defendant-Appellant.

Nos. 14567 and 14807.

United States Court of Appeals Sixth Circuit.

Decided May 24, 1962.

Harris Gilbert, Nashville, Tenn. (Ward Hudgins, Nashville, Tenn., on the brief), for appellant.

Kenneth Harwell, U. S. Atty., Carroll D. Kilgore, Asst. U. S. Atty., Nashville, Tenn., on the brief, for appellee.

Before MILLER, Chief Judge, WEICK, Circuit Judge, and STARR, Senior District Judge.

SHACKELFORD MILLER, JR., Chief Judge.

Appellant was proceeded against in the District Court by criminal information which charged in the first count that being a person engaged in the business of accepting wagers, he did wilfully fail and refuse to register, contrary to the provisions of Sections 4411 and 4412, Internal Revenue Code of 1954, 26 U.S.C.A. §§ 4411, 4412, and which charged in the second count that being so engaged he failed and refused to pay the special occupational tax imposed by Section 4411, contrary to the provisions of Section 7262, Internal Revenue Code of 1954, 26 U.S.C.A. § 7262. He was found guilty by a jury under both counts of the information.

The Government also filed a libel in the same court seeking the forfeiture of $7,198.00 in money, alleging that said money was possessed by the appellant and intended for use by him while carrying on the business of receiving wagers without having paid the special taxes imposed by Section 4411, Internal Revenue Code of 1954. It was agreed that the District Judge could consider the evidence introduced in the criminal case in deciding the libel case. The District Judge found in favor of the Government on the libel cause.

The appeals in the two cases were heard together in this Court.

Appellant's main contention is that the District Judge erred in refusing to grant his motion to supress certain evidence on the ground that the affidavits upon which the search warrant was issued were not sufficient to justify the issuance of the warrant, and that the District Judge erred in denying his motion for judgment of acquittal.

The affidavits, executed by two special agents of the Internal Revenue Service, stated that appellant was residing at premises of his mother-in-law, described as 2806 Westwood Avenue, Nashville, Tennessee, that he was a known gambler and bookmaker in the Nashville area, that his mother-in-law was the subscriber to one telephone in the premises, that two additional telephones in the premises were subscribed to in the name of Robert Walker, which name was an alias sometimes used by appellant, that a known bookmaking operator in New Orleans, Louisiana, had made numerous long distance telephone calls to one of the numbers listed in the name of Robert Walker, that from January 1, 1960, to April 15, 1960, approximately 293 long distance calls were charged to the two Robert Walker numbers, that many of these calls were made to phones which were subscribed to and used by persons who were known gamblers and bookmakers in Birmingham, Alabama, and Biloxi, Mississippi, that numerous long distance calls were made to these two numbers from phones in other cities listed in the names of known gamblers and bookmakers in Clarkson, Georgia, Philadelphia, Pennsylvania, and Jacksonville, Florida, and that such long distance phone call activity was a characteristic of the bookmaking operation. The Commissioner was of the opinion that there was probable cause to believe that certain property, which was being used in violation of Sections 4411, 4412 and 7203 of the Internal Revenue Code of 1954 was being concealed in the described premises and issued the search warrant, in the execution of which property was found, which was later used in the trial under the two counts of the information.

In support of his contention that the facts stated in the affidavits did not constitute probable cause, appellant relies largely upon what the affidavits do not state, rather than an analysis of what they do state. He points out that the agents had no information that appellant was conducting a bookmaking operation at the described premises, that they had no information that appellant had accepted a wager in the five years preceding the raid, that there was no evidence that appellant had ever been convicted for gambling activities, and that there was no evidence of people going in or coming out of the premises or of any suspicious activity about the premises.

The absence of such facts was a matter which was properly for the consideration of the jury in the trial on the merits. But there is a difference in what is required to...