ON APPEAL FROM ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 73-647).
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
The appellant, having been acquitted of certain gambling charges in a state proceeding, asserts that the district court could not revoke his federal probation on the basis of uncontradicted evidence of his gambling activities. We hold that the district court did not abuse its discretion in revoking Iannece's probation and therefore affirm.
On January 29, 1974 appellant, Charles Iannece, pleaded guilty in the United States District Court for the Eastern District of Pennsylvania to Count I of a two-count indictment, which charged him with conspiring to conduct an illegal gambling business in violation of 18 U.S.C. § 371.*fn1 At the time of the entry of his plea, the imposition of a prison sentence was suspended and Iannece was placed on probation for one year and fined $1,000. Among the terms of probation set by the court was that Iannece "shall refrain from any unlawful conduct."
Iannece, however, did not completely sever his gambling ties. On October 23, 1974 a search of the residence where Iannece's mother lived was conducted by the Philadelphia police pursuant to a search warrant. Iannece, who was present, was arrested at the conclusion of the search. During the search, the police found gambling tally sheets on Iannece's person as well as rice paper containing lists of horse bets and numbers concealed under his mother's mattress.
In early November, 1974, a federally authorized wiretap revealed that a number of telephone conversations transmitting betting information had been made to the telephone located at Iannece's residence. Government agents identified one of the conversants as Iannece.
In December, 1974 after obtaining a warrant, F.B.I. agents searched Iannece's residence. During the search Iannece informed the agents that they were too late as the Philadelphia police had just recently "hit his operations" at his mother's house.
Iannece was subsequently charged and tried by the Commonwealth of Pennsylvania for violating Pennsylvania gambling laws. During that trial, which resulted in Iannece's acquittal, Philadelphia Police Officer Reid testified about the documents he had seized during the October 23, 1974 search at the mother's residence.
On January 23, 1975 the United States filed a petition to revoke Iannece's federal probation. The petition charged Iannece had violated the conditions of his probation by:
a. conducting an illegal gambling business in Philadelphia, Pennsylvania, during the ...