United States v. ONE OLIVETTI ELECTRIC 10-KEY ADDING MACH.

• Decision Date: 23 January 1969
• Docket Number: No. 26676.,26676.
• Citation: 406 F.2d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE OLIVETTI ELECTRIC 10-KEY ADDING MACHINE, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 1167 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. ONE OLIVETTI ELECTRIC 10-KEY ADDING MACHINE, etc., Defendant-Appellant.

No. 26676.

United States Court of Appeals Fifth Circuit.

January 23, 1969.

Walter M. Sekaly, Beaumont, Tex., for defendant-appellant.

Richard Brooks Hardee, U. S. Atty., Jacob F. Bumstead, Jr., Asst. U. S. Atty., Beaumont, Tex., for plaintiff-appellee.

Before John R. Brown, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

PER CURIAM:

The United States brought suit under the authority of 26 U.S.C. § 7302 for forfeiture of property used in a business conducted in violation of the federal wagering tax provisions, 26 U. S.C. § 4401 et seq. The district court found that an adding machine, a transistor radio, and $2,988 in currency and coin had been used and possessed and intended for use in an illegal wagering business conducted by Walter Sekaly, the owner of the property. Accordingly, these items were forfeited to the Government by the judgment of the court. Having studied the briefs and record, we are firmly convinced that the appeal from the district court's decision is appropriate for summary disposition without oral argument. Pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, the Clerk of this Court has been directed to put this case on the summary calendar and notify the parties in writing.¹

On the basis of the briefs and record, we proceed to the merits. Appellant's first specification of error is directed toward his arrest, the search of his person, and the search of his business establishment, the Chalet Club. He argues that the official complaint for violation of the Internal Revenue laws, the search warrant, and the warrant for arrest were all void because the United States Commissioner who signed these documents was not presented with a sworn statement embodying the facts essential to show probable cause. Although Robert Sawyer, an Internal Revenue agent, prepared a detailed statement which was concededly sufficient to establish probable cause, appellant maintains that the statement was invalid because not sworn to by the agent. However, the agent presented the United States Commissioner with a sworn complaint and a sworn affidavit for search warrant and attached a copy of his statement to both. Moreover, both the sworn complaint and the sworn affidavit for search warrant incorporated the attached statement by clear reference. In our view appellant's objection was technical and insubstantial and therefore formed no basis for granting his motion to suppress.

Additionally, it is urged that the search of appellant's person was invalid because not conducted pursuant to a warrant for arrest. This search produced currency in the amount of $2,022 which was admitted in evidence over objection and forfeited to the Government by the final judgment. Agent Sawyer testified, and the record reflects, that an arrest warrant was issued before he proceeded to the Chalet Club and that he so advised appellant before searching his person. Inasmuch as an officer is not required to have the arrest warrant in his possession when he makes an arrest, we find the contention that the search was not made pursuant to an arrest warrant to be without merit. See Fed. R.Crim.P. 4(c) (3).

The final specification of error relates to the sufficiency of evidence to support the finding that certain property was used and intended to be used in violation of the wagering tax provisions. While the trial judge found the evidence insufficient to support forfeiture of certain items involved in the suit, he found the testimony of Agents Sawyer and Blood more than adequate to support forfeiture of the adding machine, transistor radio, and $2,988 in currency and coin. His findings in this regard are not clearly erroneous.

Affirmed.

APPENDIX

RULES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RULE 17 DOCKET CONTROL

In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 18, 19 or 20 or any other rule of ...