United States v. One 1978 Cadillac Sedan De Ville
| Decision Date | 07 January 1980 |
| Docket Number | No. 79 Civ. 601 (WCC).,79 Civ. 601 (WCC). |
| Parties | UNITED STATES of America, Plaintiff, v. ONE 1978 CADILLAC SEDAN DE VILLE, NEW YORK LICENSE PLATE NO. 533 JPY, Defendant-in-Rem. |
| Court | U.S. District Court — Southern District of New York |
Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City, for the United States of America; Marjorie A. Silver, Sp. Asst. U. S. Atty., Kent T. Stauffer, Asst. U. S. Atty., New York City, of counsel.
Orenstein, Snitow, Sutak & Pollack, P. C., New York City, for claimant, Harold D. Levine; Franklyn H. Snitow, William H. Pauley, III, New York City, of counsel.
In this proceeding, the Government seeks forfeiture1 pursuant to 26 U.S.C. § 73022 of an automobile (the "Cadillac") belonging to Harold D. Levine ("Levine"), on the ground that the Cadillac was used in furtherance of a gambling operation for which taxes have not been paid nor registration made in violation of 26 U.S.C. §§ 4401, 4411, 4412.3 A bench trial was held on March 19, 1979. This opinion and order incorporates the Court's findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P.
The Cadillac was seized by special agents of the Criminal Investigation Division (the "Division") of the Internal Revenue Service (the "IRS") on September 17, 1978, pursuant to a search warrant4 issued by Magistrate Jacobs of this court, and was transported to a garage leased by the Government where the automobile was searched and its contents inventoried. Following this search, the Cadillac was retained by the Government.
On October 13, 1978, Levine's attorney, in a letter to William DePugh ("DePugh") Chief of the Division in Manhattan, demanded that the Government return the automobile to Levine. By letter dated October 16, 1978, a representative of the IRS informed Levine's counsel that his letter of October 13 would be considered by the Department of Justice as a Petition for Remission or Mitigation, see 28 C.F.R. § 9.1 et seq. Hearing nothing further from the Government, on October 28, 1978 Levine instituted suit ("the Levine action") against the United States and DePugh, seeking return of his automobile and damages for the loss of its use. In the Government's answer of December 29, 1978 to Levine's action, it raised as an affirmative defense that Levine's Cadillac was subject to judicial forfeiture pursuant to 26 U.S.C. § 7302, and that the Government intended to commence a forfeiture proceeding "forthwith." At a pretrial conference on January 9, 1979, the Government informed the Court that it would institute a forfeiture proceeding; the Government commenced the forfeiture proceeding on February 2, 1979 and that case was assigned to this Court as related to the Levine action. It was subsequently decided by the parties that they would proceed via the Government's forfeiture action and, by stipulation of the parties, the Levine action was discontinued.
The Government contends that Levine's Cadillac was used in furtherance of an alleged bookmaking operation involving sports betting being conducted by James Pisacano ("Pisacano") with the assistance of Levine. Five special agents of the Division testified with respect to their observations of Pisacano and Levine on eight separate occasions in 1978. Anthony Carpiniello ("Carpiniello"), Group Manager of the IRS Division, who has had extensive experience in criminal investigations of gambling, testified as the Government's expert witness.
Carpiniello described how a typical sports betting operation is conducted: There is a "wire room" where the bookmaker receives wagers from bettors. The bookmaker usually arrives at the wire room at about 11:30 A.M. He then gets the "lines" (odds) and organizes his papers, and he starts accepting wagers at about 12:00 o'clock. Wagers are accepted from 12:00 P.M. to 2:00 P.M., when sports events normally begin. The bookmaker leaves the wire room after 2:00 P.M., and he returns at about 5:30 P.M. to begin accepting wagers on evening games.
The bookmaker records the wagers on triplicate slips of paper. At the end of the day, the bookmaker transfers these slips of paper to "figure men" who compute the winnings and losses of each bettor. The next morning, prior to returning to the wire room, the bookmaker picks up the slips from the figure men. In addition to taking wagers from bettors, a bookmaker might also meet with bettors after 2:00 P.M. or after the evening games have commenced in order to "settle up" with the bettors, i. e., collect from each bettor the monies owed to the bookmaker or pay the bettor his winnings.
Carpiniello testified that an automobile could be utilized in a gambling operation of this type in several ways: (1) to provide the bookmaker with transportation to and from his meetings with bettors; (2) to pick up the slips from the figure men; and (3) to transport gambling records and paraphernalia.
The special agents monitored Pisacano's and Levine's activities in New York City on eight days. On the basis of these observations, the agents concluded that Pisacano operated a wire room at 165 East 83rd Street in Manhattan. At trial, the agents testified with respect to what they observed as follows:
a. June 13, 1978
Special Agent Thomas Loreto testified that on June 13 he was following the Cadillac, which Levine was driving. Levine stopped at 332 East 73rd Street shortly after 2:00 P.M., where he picked up Pisacano. Shortly thereafter, Loreto saw Pisacano throw a crumpled piece of paper out of the window of the Cadillac. Loreto retrieved the paper from the street. Carpiniello testified that the paper was a "pay and collect slip"—a record which indicates to a bookmaker how much a particular bettor owes to or is owed by the bookmaker.
b. July 28, 1978
Special Agent Patrick Convery testified that on July 28, at around 11:00 A.M., he saw Levine park the Cadillac on the corner of East 86th Street and Second Avenue in Manhattan, walk to a nearby newsstand, and return to the Cadillac carrying a folded newspaper with an envelope placed on top of it.
c. August 1, 1978
Special Agent John McTigue testified that at about 11:30 A.M. on August 1, 1978, he observed Levine park the Cadillac on the corner of East 86th Street and Second Avenue. A male passenger in the car went to what was apparently the same newsstand at which Levine had purchased a newspaper on July 28, gave the woman at the newsstand some currency and received in return some coins, a newspaper, an envelope and some folded legal-size yellow foolscap. The man put the envelope and the paper inside the newspaper and got back into the Cadillac. Special Agent Stephen Callan testified that he then saw Levine and a passenger drive up to 165 East 83rd Street, where the agents suspected the wire room was located, and that Levine left the car and entered the building carrying a newspaper.
Carpiniello testified that the papers that were concealed in the newspaper could have contained computations of the prior day's bookmaking activities.
d. August 2, 1978
Convery testified that on August 2, 1978, at about 2:20 P.M., he observed Levine driving the Cadillac to East 77th Street and First Avenue. An unknown person got into the back seat of the Cadillac and handed some currency to Levine in the front seat. The package of currency was flat and was between one-eighth and one-quarter inch thick.
e. August 29, 1978
Callan testified that at about 2:00 P.M. on August 29, 1978 he observed the Cadillac parked at Lexington Avenue and East 83rd Street. In the Cadillac he saw a yellow manila envelope with the following writing on it:
P
Mike 5,910
Joe 7,800
Jack 2,000
A few minutes later, Callan saw Levine leave 165 East 83rd Street and get into the Cadillac. Pisacano joined Levine about five minutes later and the two drove off. While Callan was following the Cadillac, he saw Levine holding a stack of currency.
Carpiniello testified that the writing on the envelope represented common bookmaking notes. For example, "Mike" would refer to the bettor and the figure next to his name would indicate the amount of money to be paid to that bettor by the bookmaker.
f. September 3, 1978
McTigue testified that at about 3:00 P.M. on September 3, 1978 he was stationed at East 83rd Street and Third Avenue where the Cadillac was parked. A red automobile pulled up; the driver got out and went to an open telephone booth on the corner. McTigue was standing around seven feet from the telephone booth; he saw the man make a call, and overheard the man make such comments as: About five minutes later, Levine came out of 165 East 83rd Street and approached the Cadillac where he met with the other man, who then removed what appeared to be a roll of currency about an inch thick from his pocket. The two men entered the Cadillac and the unidentified man gave Levine the currency. Levine left the car and returned to 165 East 83rd Street. On cross-examination, McTigue testified that Levine did not appear to "be taking the man's action" while he was in the car; Levine merely counted the currency the man gave him.
g. September 7, 1978
McTigue testified that at about 5:00 P.M. on September 7 he and another agent went to 165 East 83rd Street. From their position on the roof, the agents observed first Pisacano, and then Levine, enter apartment 5-D with a key. About five minutes after Levine appeared, the agents heard the sound of a radio or television in the apartment announcing what appeared to be racing results. As the agents left the building, they noted that the mailbox to apartment 5-D bore the name "A....
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