United States v. Joseph Serao, Charles Cafaro and Benjamin Genetempo, 367 F.2d 347, 2d Cir. (1966)
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Scribd Government DocsUnited States v. Joseph Serao, Charles Cafaro and Benjamin Genetempo, 367 F.2d 347, 2d Cir. (1966)
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Scribd Government Docs367 F.
2d 347
66-2 USTC P 15,718
UNITED STATES of America, Appellee,
v.
Joseph SERAO, Charles Cafaro and Benjamin Genetempo,
Appellants.
No. 12, Docket 30548.
United States Court of Appeals Second Circuit.
Argued Sept. 19, 1966.
Decided Oct. 20, 1966.
Daniel R. Murdock, Michael W. Mitchell, Asst. U.S. Attys., Robert M.
Morgenthau, U.S. Atty., Southern Dist. of New York, for appellee.
Albert J. Krieger, Robert Kasanof, New York City, for appellants.
Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON,
Circuit judges.
WATERMAN, Circuit Judge.
Appellants Serao, Cafaro, and Genetempo appeal from judgments of conviction
entered against them after a jury returned verdicts that they were 'wilfully
guilty' of wilful failure to pay a special tax imposed on persons engaged in
receiving wagers on behalf of one engaged in the business of accepting wagers,
26 U.S.C. 4411, 4401, and wilful failure to register as required by 26 U.S.C.
4412, 7203.
Appellants were involved in a bookmaking operation by which bettors made
wagers over the telephone. The telephones of the bookmakers, the 'wire room,'
were located at three New York City apartments, Apt. 11 at 329 W.89th, 3B at
261 W. 90th, and 1AA at 255 W. 93rd Streets. The record-keeping part of the
business was carried on in a fourth apartment, Apt. B at 327 W.87th Street, the
'tally room,' which contained no telephone. Special agents of the Internal
Revenue Service, after placing bets with Serao in person, called them in the
telephones located in the three 'wire room' apartments, whose numbers Serao
gave them. The appellants were observed on different occasions going to and
departing from the four apartments. On March 5, 1963, Serao was observed
walking from the W. 93rd Street apartment to the W. 87th Street apartment. On
March 11, Genetempo and Cafaro (twice) were seen entering the W. 87th Street
apartment; on his second trip Cafaro was seen carrying a brown paper bag. On
March 13, Genetempo was seen leaving and later reentering the W. 87th Street
apartment; and still later Cafaro arrived there carrying a brown paper bag. On
March 14, Genetempo was observed leaving and reentering the W.87th Street
apartment and Serao was seen to leave the W. 90th Street apartment, to drop a
brown paper bag containing gambling paraphernalia into a trash can, and later
to go into the W.87th Street apartment. On March 16 and 18, Serao was
watched while entering the W. 90th Street apartment. On March 19 Serao and
Genetempo were seen together at the W.87th Street apartment. Under fictitious
names the W. 93rd Street apartment and the W. 87th Street apartment were
lesed by Cafaro and Genetempo respectively.
3
Warrants were thereafter obtained to search the four apartments for gambling
paraphernalia and to arrest Serao, who was known to the government agents as
Joe Carroll. The apartments were searched and a sizeable amount of gambling
paraphernalia was seized.
All appellants challenge the constitutionality of the statutes under which they
were convicted. We rejected such attacks in United States v. Costello, 352 F.2d
848 (2 Cir. 1965), cert. granted, 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205
(1966), and United States v. Conti, 361 F.2d 153 (2 Cir. 1966), and we likewise
reject this one. This is the only contention advanced by appellant Serao, and his
conviction is affirmed. We now discuss other contentions advanced by
appellants Cafaro and Genetempo.
Genetempo and Cafaro challenge the propriety of the issuance on March 21,
1963 of the search warrant authorizing a search of the W. 87th Street
apartment. They each claim that the supporting affidavit of the special agent
who applied for the warrants was insufficient. The affidavit is set forth herein
in full:
AFFIDAVIT FOR SEARCH WARRANT
BEFORE HON. FRANK R. ABBOTT, U.S. Courthouse, Foley Sq., New York,
N.Y.
The undersigned being duly sworn deposes and says:
That he (has reason to believe) that (on the premises known as) Apt. B, 327
West 87th Street, New York, New York in the Southern District of New York,
there is now being concealed certain property, namely gambling paraphernalia,
including but not limited to horse betting slips, baseball and basket ball slips,
other sporting slips and money, which are being used as means of committing a
criminal offense, to wit, the business of accepting and receiving wagers, in
violation of 26 U.S.C. 4401, 4411, 4412 and 7272,
And that the facts tending to establish the foregoing grounds for issuance of a
Search Warrant are as follows: testimony of Special Agents of the Internal
Revenue Service: 1. Who have placed wagers by telephone at 3 different
locations hereinafter referred to as wirerooms, with an individual known as Joe
Carroll. 2. Who observed said Joe Carroll on 4 occasions proceeding from the
aforesaid wirerooms to the premises at 327 West 87th St. 3. Who observed 2
unknown individuals leaving 2 different wirerooms premises and who were on
several occaions observed entering the premises at 327 West 87th St. 4. That
Joe Carroll was observed inside Apt. B at 327 West 87th St. 5. That a search of
the records of the Internal Revenue Service reveal that the said Joe Carroll has
not paid the special tax imposed by 26 U.S.C. 4411.
10
(s) DAVID A. OSTRAGER Special Agent
11
Sworn to before me, and subscribed in my presence, March 21, 1963.
12
(s) FRANK R. ABBOTT United States Commissioner Appellants claim that
13
this affidavit contains no basis for concluding that the visits to this apartment
by 'Carroll' and the others were not for innocent purposes unrelated to the
activities at the other apartments. They also claim that the location of the
wirerooms, the numbers and dates of bets placed at each, and the dates upon
which the surveillance of the appellants took place should have been specified
in the affidavit.
14
Appellants' challenge to the adequacy of the affidavit might perhaps have some
validity if the application to search the W. 87th Street apartment had been the
only application in this matter presented at this time to the U.S. Commissioner,
but under the circumstances of the present case there is no merit whatever to
appellants' claims. On the same day that this application was made, the same
special agent presented to the same U.S. Commissioner applications for
warrants to search the three 'wireroom' apartments and to arrest Joe Carroll.
These four other warrants were issued and their issuance is not challenged here.
The U.S. Commissioner in issuing the challenged warrant could surely consider
the facts he contemporaneously learned from the affidavits presented to him in
support of these other applications, all of which contained references to Joe
Carroll and to the bookmaking operation. See United States v. Markis, 352 F.2d
860, 864 (2 Cir. 1965). Even if it be assumed that the so-called essential facts
that appellants claim are missing from the challenged affidavit are wanting, one
easily infers from the affidavit, standing alone, that the Commissioner had
probable cause to believe that Joe Carroll's trips and those of the other two
individuals from the wirerooms to the W. 87th Street apartment bore a direct
relationship to the wireroom activities. And, most assuredly, the Commissioner,
in making his independent judgment as to the sufficiency of the affidavit
submitted in support of the application to search the suspected W.87th Street
apartment, could quite reasonably infer that very likely in this apartment was
that part of the appellants' operation that was being conducted awat from the
wirerooms. It would be hypertechnical for the Commissioner not to act upon an
entire picture disclosed to him in interrelated affidavits presented to him on the
same day. And, as the United States Supreme Court admonished in United
States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684
(1965), 'the courts should not invalidate the warrant by interpreting the affidavit
in a hypertechnical, rather than a commonsense, manner.'
15
Appellant Cafaro claims his rights under the Fifth and Sixth Amendments were
violated by the Government's introduction into evidence of a handwriting
sample procured from him after his arraignment. The sample was one of two
handwriting specimens used by the Government as a standard for comparing
Cafaro's handwriting with the handwriting on the gambling records seized.
16
The sample was obtained when the Internal Revenue Service began a routine
investigation of Cafaro's income tax returns after his arrest in this case on
March 22, 1963. As part of this investigation, the Service sent a form to Cafaro
on April 19, 1963, after the Service was unable to find that Cafaro had filed a
federal income tax return for the calender year 1961 in either the Manhattan
District or the Brooklyn District. The form requested that an explanation be
made on the back side of it, and, in his own handwriting, Cafaro wrote such an
explanation. Cafaro was not required to write an answr; his voluntary reply
could have been typed, written by someone else for him, or he could have made
no answer at all.
17
Aside from the fact that Cafaro was under no compulsion to give the
handwriting sample, he has no claim that his constitutional rights have been
infringed. The Supreme Court in Schmerber v. State of California, 384 U.S.
757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) limited the Fifth Amendment
privilege to evidence of a testimonial or communicative nature. While Cafaro's
writing was communicative for another purpose it was used here merely as a
handwriting standard for identification, not to communicate any information
related to the issues being tried. Obviously, there is no merit to the claim that a
constitutional right of Cafaro was infringed by this voluntary act of his. Even
identification procedures requiring fingerprinting or the giving of blood
samples do not infringe. The Court noted in Schmerber, supra at 764,86 S.Ct. at
1832, that 'both federal and state courts have usually held that (the privilege
against self-incrimination) offers no protection against compulsion * * * to
write * * * for identification.' As Cafaro was deprived of no rights under the
Fifth Amendment, presence of his counsel would have availed him nothing. He
therefore has no Sixth Amendment claim. Schamerber b. State of California,
supra at 765-766, 86 S.Ct. 1826.
18
Appellant Genetempo claims that the evidence was insufficient to sustain his
conviction because it does not show that he performed other than mere
ministerial or clerical duties. See United States v. Calamaro, 354 U.S. 351, 77
S.Ct. 1138, 1 L.Ed.2d 1394 (1957). We find no merit in this contention. The
evidence is clearly sufficient to allow a finding that he performed more than a
mere ministerial or clerical function. In fact, it would support a finding that he
was supervising the whole operation. By the nature of the bookmaking
operation the apartment which Genetempo leased under a fales name and which
he was often observed entering and leaving was the center of the operation. The
wagers received at the various wirerooms were taken to this 'tally room' to be
recorded. Several hundred of the summary sheets reflecting the credit of the
bettors and the earnings of the operation seized at the tally room were in
Genetempo's handwriting as were also a number of bet slips and even a
summary sheet seized at the W. 93rd Street apartment.
19
The convictions of all three appellants are affirmed.
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