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UNITED STATES v. JOSEPH

June 12, 1959

UNITED STATES of America
v.
Peter JOSEPH, a/k/a Pete Joseph



The opinion of the court was delivered by: LORD

The informations in above causes charge defendant Peter Joseph with failure to pay the special occupational tax on wagering, and with failure to file excise tax returns, respectively, in violation of Title 26 U.S.C. §§ 7262 and 7203. In short, the government's informations charge Peter Joseph with operating a 'numbers' business without having paid occupational or excise tax thereon.

 The government has in its possession the fruits of a search of defendant's home in Pottsville, consisting of numerous items of gambling paraphernalia and a substantial amount of money.

 The present problem arises on the motion of Peter Joseph for suppression of the seized property as evidence against him in these criminal proceedings, and for the return of such property.

 In essence the defendant's motion is couched in terms of the applicable portions of Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C. It asserts that the search warrants were invalid since no showing of probable cause was made; that the premises to be searched and the property taken were not adequately described; and that the warrant was not legally executed.

 It is conceded that the agents of the Internal Revenue Service made no arrest on June 21, 1958, which was the date of the search. Therefore this is a question of search and seizure only.

 At the hearing of this motion, eight witnesses were examined and cross-examined, and both defendant and the government proffered exhibits which were received in evidence according to the procedure established by the aforesaid Rule 41(e), Federal Rules of Criminal Procedure. The following opinion rules on the grounds raised in the order of their presentation.

 I. Probable Cause for Issuance of the Search Warrant

 The thrust of this objection is that the warrant was largely based upon hearsay. The circumstances are that on June 20, 1958, John J. Chiovero, Special Agent, Internal Revenue Service, appeared before United States Commissioner Henry P. Carr, in order to obtain search warrants. In fact, he secured two warrants -- the second referring to premises located at 523 Minersville Street, Pottsville, Pennsylvania -- whereas the warrant herein discussed referred to 209 Court Terrace in the same city. The second warrant was issued in substantially the same terms as the first, upon the same affidavit, and the rulings as to the first warrant will control the second. Discussion will be limited to the first, that is, the '209 Court Terrace' warrant.

 'The undersigned, being duly sworn, deposes and says: That he has reason to believe that on the premises known as 209 Court Terrace, Pottsville, Schuylkill County, Pennsylvania, in the Eastern District of Pennsylvania, there is now being concealed certain property, namely, betting slips, run down sheets, records and other paraphernalia and equipment which are being used or intended for use in violation of Section 4411, 4412, 4901, 7203, 7262, 7272 and 7302 of the Internal Revenue Code of 1954 (Title 26 U.S.Code).

 'And the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows:

 'On June 19, 1958, a confidential informant, whom I believe to be reliable, appeared before me and made a statement, under oath, that Pete Joseph of Pottsville, Schuylkill County, Pennsylvania, has been engaged in the business of accepting wagers (numbers lottery) during the years 1956, 1957 and 1958 on the premises known as 209 Court Terrace and on the premises known as 523 Minersville Street, both located in Pottsville, Schuylkill County, Pennsylvania; that he has personally observed said Pete Joseph accept numbers bets from many persons during the years 1956, 1957 and 1958; and that he has personally observed said Pete Joseph make records of numbers bets during the years 1956, 1957 and 1958.

 'I have personally examined and have in my possession a day book record reflecting daily receipts and payments on wagers for the period from January 1956 through April 1958 and approximately 1431 betting slips covering numerous wagers (numbers lottery) during the months of April and June 1958. This day book and these betting slips have been identified to me by a reliable informant as being property of Pete Joseph and as being records of numbers lottery bets accepted by the said Pete Joseph and his employees.

 'On June 19, 1958, I personally examined the records of the Collection Division, Office of the District Director of Internal Revenue, Philadelphia, Pennsylvania, relating to the registration, filing of returns and payment of the occupational tax imposed on persons engaged in the business of accepting wagers and found no record in the name of Pete Joseph or Peter Joseph or any person whose address was given as 523 Minersville Street, Pottsville, Pennsylvania or 209 Court Terrace, Pottsville, Pennsylvania.'

 Based on this affidavit, Commissioner Carr issued a search warrant directed to Special Agents John J. Chiovero, Edward F. Quarry and Thomas J. Ryan, Jr. The search warrant recited that the Commissioner is satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issuance of a search warrant exist. The officers were directed to search the place named for the property specified -- serving the warrant and starting the search in the day time.

 Pursuant to this warrant, on June 21, 1959, the three agents directed to do so by the search warrant, in company with six others, searched the premises at 209 Court Terrace. The search began at 4:00 P.M. and ended at approximately 10:30 P.M.

 As stated, defendant's first objection is on the score of hearsay. His position is that the Commissioner relied on the hearsay of the Special Agent, and that the Special Agent in turn relied on hearsay, and there ...


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