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United States v. Serao

decided: October 20, 1966.

UNITED STATES OF AMERICA, APPELLEE
v.
JOSEPH SERAO, CHARLES CAFARO AND BENJAMIN GENETEMPO, APPELLANTS



Lumbard, Chief Judge, Waterman and Anderson, Circuit Judges.

Author: Waterman

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 to 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 leased by Cafaro and Genetempo respectively.

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 basketball 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 occasions 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.

/s/ DAVID A. OSTRAGER

Special Agent

Sworn to before me, and subscribed in my presence, ...


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