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United States v. Botsch

decided: August 1, 1966.


Moore, Smith and Kaufman, Circuit Judges. J. Joseph Smith, Circuit Judge (dissenting).

Author: Kaufman

KAUFMAN, Circuit Judge:

Paul W. Botsch, Jr. appeals from a judgment of conviction on thirteen counts of violating 18 U.S.C. § 1341 (using the mails in a scheme to defraud) and on one count of violating 18 U.S.C. § 1342 (assuming a fictitious name or address to promote a scheme). Judge Dooling, who presided at Botsch's jury trial, imposed concurrent sentences of six months' imprisonment followed by eighteen months' probation on each count. For the reasons set forth below, we affirm.


Because Botsch challenges the admissibility of certain evidence obtained by searches which he contends were unreasonable and, hence, violative of the Fourth Amendment, it is necessary to set forth in detail not only the factual material presented at trial which the jury was warranted in crediting but, in addition, the circumstances which led to the procurement of the controverted evidence. The record discloses that, in 1962, Botsch and two friends, Harold Switts and Richard A. Boyce, Jr., opened a retail sporting goods enterprise known as "Olympic Arms"*fn1 in Huntington, New York. Because of previous financial difficulties, Botsch avoided being designated an officer of the company; he, nevertheless, undertook full management of the business and placed most of the orders for merchandise. Switts spent little time in the store, and Boyce, the company's nominal president, played only a slightly more active role.

Shortly after the Olympic Arms store commenced operations in Huntington, Botsch rented a small shack located at the Fire Island Ferry Station in Sayville, New York. This wooden shanty, measuring a bare 10 x 20 feet with one window, was leased from Kenneth Stein,*fn2 who operated the ferry and managed the ferry station, at a monthly rental of $25. Indeed, the shack, at one time, had been used as the ferry terminal office.

In addition to making these premises available, Stein, at the request of Botsch, agreed to perform certain services. Since Botsch stated that he expected parcels to be shipped to the shanty, he asked Stein, who Botsch knew had retained a key, to unlock the shack in order to permit delivered merchandise to be stored inside and also to sign any required receipts. Moreover, Botsch gave Stein $100 in cash to be used in payment of freight charges. Stein, at the trial, testified that he performed these functions and that Botsch, almost daily, came to the shanty, picked up the accumulated deliveries and replenished the cash fund so that, at all times, it would be maintained near the $100 level. Stein also stated that Botsch placed a sign on the shanty which read "Lands End Supply Co., Division of Fisherman's Paradise."*fn3

In October 1962, an order for merchandise under the letterhead "Lands End Sports Shop (Division of Fisherman's Paradise Inc.), River Avenue at Lands End, Sayville, New York" (emphasis added) was dispatched to Wightman Electronics Inc., Easton, Maryland. It read:


Please send us 1 (one) Call of the Wild record machine and 1 each of the different game records for the machine.

References other than D[un] & B[radstreet] supplied upon request.

Thank you in advance,

/s/ C. Sampos

C. Sampos

Orders for sporting mechandise, on similar stationery and bearing a similar signature,*fn4 were also dispatched in October to "Bushnell," Pasadena, California; "R.C.B.S.," Oroville, California; "Original Sight Exchange," Paoli, Pennsylvania; "P. S. Olt Co.," Pekin, Illinois; "Paul Jaeger," Jenkintown, Pennsylvania; and "Division Lead Company," Summit, Illinois.*fn5 Each company filled the order received by it, shipped goods to Sayville and, it may be inferred, relied on the Dun & Bradstreet credit rating for another " Fisherman's Paradise," enterprise in Sayville, New York.

The ingenious nature of the scheme becomes apparent when we learn that the reference to "Fisherman's Paradise" in Dun & Bradstreet was not to the mail or package drop which Botsch maintained in Sayville. Instead, the listing referred to an unincorporated and wholly unrelated sporting goods enterprise which had been owned and operated by one Christopher Locascio in Sayville for more than 8 years under the tradename "Fisherman's Paradise." Indeed, it appears that prior to November 1962, a "comedy of errors" caused Locascio to suspect that something was amiss; he was receiving packages addressed to Lands End Sports Shop -- Fisherman's Paradise which he had never ordered. After making some inquiries, Locascio learned that Botsch had rented the shanty in controversy from Stein and that the premises were being used to receive goods which ostensibly were ordered and being shipped on Locascio's credit. Angered by all this, Locascio communicated with Botsch and complained bitterly about the scheme, even uttering threats if Botsch did not discontinue this deceit. Botsch, however, vigorously denied any participation in the Lands End Sports Shop operation. And, two days later, Locascio received a letter from the "Lands End Supply Company (Division of Fisherman's Paradise Inc.)," bearing the signature "C. Santos," and, without doubt stimulated by the conversation between Locascio ...

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