Louie Rosen, Appellant, v. United States of America, Appellee, 293 F.2d 938 (5th Cir. 1961)

The appellant, Louie Rosen, and his wife, Wanda J. Rosen, were indicted for the offense of accepting wagers and conducting a lottery for profit without having paid the tax required by 26 U.S.C.A. § 4411, in violation of 26 U.S.C.A. § 7203. They were charged in a second count of the indictment with being in the business of accepting wagers and conducting a lottery for profit without having registered as required by 26 U.S.C.A. § 4412, in violation of 26 U.S.C.A. § 7203. The appellant was convicted on both counts. His appeal from the conviction is before us.

A search warrant was issued on the affidavit¹  of Robert C. Joyner, who was a Special Agent in the Intelligence Division of the Internal Revenue Service. The affidavit and the search warrant were dated April 27, 1960. On the afternoon of that day agents of the Internal Revenue Service, accompanied by police officers of the City of Atlanta, Georgia, made a search of the premises described in the affidavit and warrant. This was a dwelling in the City of Atlanta occupied by the appellant, his wife and their two children.

The search, which lasted from two until five in the afternoon, produced a number of papers which were introduced in evidence. One of these was identified as a recap or summary sheet of bets received showing twelve bettors with losses of $2,800 and wins of $3,266. There were two papers which were identified as collection sheets bearing the symbols of bettors, amounts of the bets, and the odds of the bets. One of these was under the table cloth on a kitchen table. The search disclosed and the court received in evidence telephone bills and cancelled checks in payment for telephone service for the period of September, 1959, to May, 1960. Proof was made that during the May to September period 929 long distance calls were made to or received from telephones in Chattanooga, Tennessee, Birmingham, Alabama, or Mobile, Alabama, at addresses of persons who were registered as gamblers under the federal law. Before the search was completed Mrs. Rosen was placed under arrest and was taken from the dwelling by some of the officers. The other officers continued the search and the appellant came in as the search was being finished about five o'clock. The appellant was then placed under arrest. In response to the officers' questions he stated that he had formerly worked as a dealer in Tennessee and in Georgia, but had been unemployed for a year. On being asked about the long distance calls, he said that he frequently made calls to friends in other localities just to pass the time of day, and on some occasions when he was indisposed he made telephone calls that he didn't even remember making.

Such, in summary, was the Government's case. When the Government rested, a motion was made for the suppression of all of the evidence which was the result of the search and for a judgment of acquittal for each defendant. The motion to suppress was overruled. The motion to acquit Mrs. Rosen was granted. The motion to acquit the appellant was denied. The jury found the appellant guilty on both counts. On the first count he was given a nine months' prison sentence and on the second count he was given a fine of fifty dollars.

The appellant urges that the motion to acquit should have been granted because of the rule announced in United States v. Calamero, 354 U.S. 351, 77 S. Ct. 1138, 1 L. Ed. 2d 1394, where it was held that Congress did not choose to subject all employees of gamblers to the tax and reporting requirements of the statute, but was content to impose them on persons actually engaged in receiving wagers. While conceding that the evidence showed that bets had been made, the appellant contends that it does not establish that he had made them. The records of gambling transactions showing wagers received, the telephone calls to and from registered gamblers, and the other circumstances made a case for the jury. The Calamero case is not in point.

The ruling of the Court on the motion to suppress the evidence procured by the search is made the basis of a specification of error by the appellant. The rule provides that the motion to suppress shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing. Rule 41(e) Fed.Rules Crim.Proc., 18 U.S.C.A. No motion to suppress was made on behalf of the appellant until after the Government had completed its testimony and rested its case. No effort was made to show that opportunity did not exist for making the motion before trial or that the defendant was unaware of the grounds for the motion. No reasons were given at the trial or on appeal as to why the court should, by an exercise of discretion, permit the motion to suppress to be made after the seized evidence had been admitted without any objection being made on the ground that there had been a wrongful search. No reason appears why the motion to suppress could not have been made before trial. There was no abuse of discretion in refusing to grant the motion at the time it was made. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; Segurola v. United States, 275 U.S. 106, 48 S. Ct. 77, 72 L. Ed. 186; United States v. Volkell, 2 Cir., 1958, 251 F.2d 333, certiorari denied 356 U.S. 962, 78 S. Ct. 1000, 2 L. Ed. 2d 1068; United States v. Romero, 2 Cir., 1957, 249 F.2d 371; Sandez v. United States, 9 Cir., 1956, 239 F.2d 239, rehearing denied 245 F.2d 712; United States v. Sansone, 2 Cir., 1956, 231 F.2d 887, certiorari denied 351 U.S. 987, 76 S. Ct. 1055, 100 L. Ed. 1500; Braswell v. United States, 10 Cir., 1955, 224 F.2d 706, certiorari denied 350 U.S. 845, 76 S. Ct. 86, 100 L. Ed. 752.

A separate specification of error questions the admission of telephone bills and cancelled checks which were obtained by the search, on the ground that they were not contraband and were not described in the search warrant. That which has been said disposes of this question. It might be also said that the court asked appellant's counsel, when these exhibits were tendered, if he had any objection and the answer was, "no objection."

There is no reversible error. The judgment of the district court is

Affirmed.