Zaroogian v. United States, 6712.

• Decision Date: 01 November 1966
• Docket Number: No. 6712.,6712.
• Parties: Harry ZAROOGIAN, Alias, etc., Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

367 F.2d 959 (1966)

Harry ZAROOGIAN, Alias, etc., Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6712.

United States Court of Appeals First Circuit.

November 1, 1966.

COPYRIGHT MATERIAL OMITTED

Eugene A. Liberati, Providence, R. I., with whom Harold C. Arcaro, Jr., and Thomas R. DiLuglio, Providence, R. I., were on the brief, for appellant.

Alton W. Wiley, Asst. U. S. Atty., with whom Frederick W. Faerber, Jr., U. S. Atty., was on the brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Opinion of the Court

COFFIN, Circuit Judge.

Defendant appeals his conviction, after jury trial, under four counts of an information charging violations of the federal wagering tax laws, 26 U.S.C. §§ 4401, 4411, 7203, and 7262. Two counts (3 and 7) under section 7203 charged wilful failure to pay the special occupational tax required of one engaged in accepting wagers on behalf of any person liable for the ten per cent excise tax on wagers imposed by section 4401. The remaining two counts (4 and 8) under section 7262 charged merely failure to pay such tax.¹

The government's principal witness was a special agent of the Internal Revenue Service who testified that in the course of investigating wagering activities, he visited a bar on some fourteen different occasions within a five-week period, placing twenty-two wagers with defendant and observing many other persons placing bets; that defendant used a telephone to call in the names of horses, names of tracks, and amounts of money wagered; that he received calls and announced race results; and that he paid winnings from funds on his person. On one occasion the special agent questioned defendant about money owing him from one race. He testified that defendant made a telephone inquiry, and thereafter paid the amount due, saying, "We always make mistakes. It is a lucky thing the office still had the records."

Defendant was subsequently arrested by another agent, who testified that he asked defendant if he possessed a stamp; that defendant replied that he did not because he did not accept wagers; and that on being asked if he would have a stamp if he did accept wagers, defendant said that he would. The defense consisted of extensive cross-examination of the major prosecution witness and direct examination of two witnesses who testified that no wagering had taken place at the bar. The jury returned verdicts of guilty on the four counts here involved.

Defendant's first contention² is that the special agent's testimony should be rejected in toto, since his action in wagering constituted a violation of local law. There is here, however, not only a complete absence of timely objection or motion to suppress, but no suggestion whatsoever that the defendant was entrapped or that the agent's activity infringed any constitutional right personal to the defendant. A rule excluding otherwise competent and credible evidence because of the way it was obtained is justified only where the police activity complained of ought to be deterred and no other remedy is likely to be effective, and where an invasion of the defendant's personal rights gives him standing to complain of the untoward activity. We do not find either of these conditions satisfied here.

A second ground of appeal is that there was insufficient evidence that defendant was receiving wagers "on behalf of a person liable for the tax". To this we respond that the record as a whole, and specifically defendant's reference to records kept by "the office", entitled the jury to find that defendant was not acting as a principal. That the real principal would be liable for the tax is obvious. See 26 U.S.C. § 4401(c).

Defendant next argues that the district court erred in refusing to compel disclosure of the identity of an informer who accompanied the principal witness on his first visit to the bar. The evidence reveals that the informer's role was confined to guiding the agent to the bar, after which the agent observed for himself all of the events that were the subject of his testimony. There was no testimony concerning what the informer may have said to the Revenue Service before the investigation. Under these circumstances we rule as we did in Marderosian v. United States, 1 Cir., 1964, 337 F.2d 759, cert. denied, 380 U.S. 971, 85 S.Ct. 1328, 14 L.Ed.2d 268, that the district judge committed no error in refusing disclosure. United States v. Russ, 2 Cir., 1966, 362 F.2d 843. In Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, cited by defendant, the evidence suggested strongly that the informer might have been in a position that would have made him a valuable material witness for the defense. We find no such suggestion here.

A fourth contention is that wilfulness was not established, since the only evidence was the defendant's response to questions about the wagering tax stamp after his arrest, when he had not been advised of his constitutional rights. There is no merit in this point. To the arresting agent's straightforward question inquiring why he did not have a stamp, defendant answered unequivocally that he did not accept wagers. Defendant's trial antedated the decision in Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and counsel did not object to the testimony.

The defendant's strongest contention is that the "sentences" under counts 4 and 8 were imposed erroneously and should be vacated. He makes two arguments. The first is that, since counts 4 and 8 charge non-wilful crimes, these are lesser included offenses included in the wilful offenses described in counts 3 and 7 and therefore should not be the basis for the imposition of separate sentences. United States v. Goldman, 3 Cir., 1965, 352 F.2d 263. The second argument addresses itself to our dicta in Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380, 385-386, to the effect that, while sentences may be imposed on counts charging both a more inclusive and a lesser included offense, they must be concurrent. Defendant says that as to count 4, the "judgment of probation for one year" is not concurrent with the judgment of a fine and thirty days' imprisonment on the more inclusive count 3. As to count 8, while its one year probation parallels that imposed under its more inclusive count 7, defendant argues that section 7262, on which count 8 is based, permits only a fine, which would be additional to and not concurrent with the one year probation based on count 7.

In approaching this tangle, our first inquiry must be to ascertain what sentencing action was taken by the district court. The relevant language in the order of "Judgment and Commitment" is the following:

"IT IS ADJUDGED that the defendant is hereby committed * * * for imprisonment for a period of thirty days and pay a fine of One Thousand Dollars ($1,000.00) on Count No. 3 and be placed on probation for a period of one year on each of Counts Nos. 4, 7 and 8; probationary periods to begin from and after the expiration of the sentence on Count 3 and to be concurrent."

The district judge, of course, was fulfilling his function under Fed.R.Crim.P. 32(e), which specifies that after...