Petition for a Writ of Certiorari — Nicholson v. United States

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A j le

IN THE '

| SUPHEME socks OF THE’ U ure STATES. A

7 ear OCTOBER TERM, 1962

e ~~ of

. No 2 Pe :

; BILLY GEHLBERT NICHOLSON, |

Roars ‘Petitwoner,

UNITED STATES OF AMERICA, -

S Y , Ke sponde nt

BIL I. Y GHeBERE MSCHOLAON, Clannant- of $7. 198.00 in P vie j

. United States Money, ;

Petitioner,

. P< ae

UNITED “ OF AMERICA, °

ke me, Respondent

PETITIONS FOR WRITS OF CERTIORARI, UNITED :

STATES. ‘COURT OF alah muares FOR THE SIXTH

OIROUIT.-- | z

Hanuis Gitpert, ay

ceo Warp Hupcins, bi

W % ca Attorneys for Petitioner,

1316 Nashville Trust B: wil ling, :

\ Nashville 3, Tennessee.

2 e «

{ +" -

Be ; | }

M 5 2 \

aaa INDEX: ~

5 . . : al - Page

Opinion -Below, ; oh se 2

- Jurisdiction.* —, ; = - Tea

Questions Présentéd , as 2

Statutes Involyed | ae 3

: State ment of the Case Moa eee ‘ 3

» The Question Is Substantial 6 y

—3 — The Que stion Presented oes i-7

-- Conclusion. * oe tt

Appendix An ige Beihai -

Appendix’B Began on 17

.,Appendix Co Po ok Sear ae Nia) Se

Appendix D. Geen oe ee ae ea tg ee a

Appendix Eo 1a - oY 7

rae 4 4 >

~; TABLe oF Cases

y oui sv. U nited States, 362 U Ss. ‘O57 a - 3/4, 7,10

Uuited Statgs v. Ramirez, 279 Fed.2d 712 (CA2) 0° 7

United States \ v: _tacobsen, 195 F_ Supp. 366 (B.C. wees

€onm.) > Pinan ¥, 10°

‘United States v. tak 147 F. Supp. 944 (KE. D. Ky. ; ee.

United States v. Lassoff, 147 FE. Supp. 944, 952, 953° oY,

( ‘nited States v. Schwartz, J51 . Supp. 399 (Ww. Dd.

ss | lea

v : : . «

" * * MIscELLANEOUS

26 Staite ate ne

UU. S. Constitution, 4th Amendient .

_* —8980-1,..

- SUPREME. LOURF OF THE UNITED STATES

cee OCTOBER TERM, 1962 es

y No. . i. : ;

_ BILLY GILBERT MCHOLSON,

7 ss aeenn ai rt v8, oh, ee

a < UNITED STATES OF AME RICA,

ae Re spondey

‘BILLY G ILBERT- NIC HOLSON; Chetainah of $7, 198.09 in

a U nited States, Money, |

- . ~ i. . ‘ « ~ ' Pp diver:

Fy, . Us. “sas

¥ ne * ‘ i

‘bgrrep STATES OF AMERIC A,

é Respondent °

; PETITIONS FOR WRITS OF CERTIORARI, UNITED

- STATES COURT \OF -APPEALS FOR THE SL.TH

"CIRCUIT. - _. G

Y hs

To: The Honorable, The C hiefei ee of The Unite d States

- and The Associate Justice s/of The Supréme Court of

the U nited States. vA Boas.

: The petitioner prays Yhat writs of certiorari issue -to

review thie judgment of A 1¢ United States Court of Appeals

_ for the Sixth Circuif/n the abové causes, entered’ May 24,

1962, affirming the Judgment of thee United States District

Court for the Middle District of Tennessee. Extensions

of time for filing the petitions. for writs of certiorari were

granted on June 22, 1962, by Mr. Justice Potter Stewart,

Cae

July es ‘ The cases were consplidate “d for hearing in

“the an os c ourt and the Court of Appeals, and contain:

‘identical quesigons of law and fact it “

a _ Ae

“opinion Below |

roa “The opinion of the Court of Appeals affirming the judg-

ment of tlie District ri ourt has not been generally reported.

‘A copy is appended hereto as Appe ndix: A. The opinion

‘of the District Court has not been generally re ‘ported, but

is appended hereto as Appendix B. | The, District Court

- entered judgment - in “eriminal cause, Xo. 14,807, sentencing

‘the petitioner ‘to. six (6) months imprisonment and a One

/ + Thousand _(#1,000.00) Dollars fine, and further found

‘against the petitioner in the companion libel ease, y

14,567, requirin® forfeiture of $7,198.00 of U nited States

. money.

Jurisdiction Y te ~

The jurisdiction to review the judgments és pipet

on this ‘Court by-Title 28, U thes, deca 12 4(1).

- Questions Presented ~

4. Dees: sufficient probable: cause éxist to justify ° the

issuance of a search warrant to search a man's residence,

when fhe facts stated in the affidavits to the search w arrant

consist of allegations that two (2) telephones were loc ated

at the person’s residence, which had the subject of two

_hundred ninety three (293) long distance telephone calls

charged to these telephones during ¢ a one hundred five (105)

‘day period prior to the issuance of the search, warraat, that

: @ party livigiy at the said residence was a known, gambler,

-and that some of these calls went to telephones subscribed

' !-to by persons in other cities. who were holders of the oceu- |

ime. for the, filing. of these petitions until.

pationat w agering tax stamp issyedd by the Tite rual Reve nue

Service of the United States?

2 &

‘=; é ae _ Statutes Involved een ae ee get

The questions prese ited herein raise issues under 26,-

US.C., 4411, 4412, 7203, 7262, commonly known ag the occu. +

pational wagering tax statutes, and the U. 8. ‘onstitution,

4th Amendment, the ‘text of which appear in Appendix ©.

* pStatement: of the Case ae a

This pe tition: raises: an important question as to the sufli-

ciency of the ¥long distance telephone charting system’

now commonly employed by the. Internal Revenue Se ‘ryice

of the United States to.obtaimr issuance-of search warrants.

“where violations of the occupational wage ring tax’ stamp

“sfatytes are suspected. The charting method for the i iSsu-

ance of search warrants for the. arrest. without ‘a search

warrant: has been the subject of considerable litigation in

. the lower Federal Courts: US. v.. Selwartz, 151 F. Supp.

399° (WD. Pa); ELS. v. Jacobsen, 198 F. Supp. 386 (D.C.

Conn, ); Contra: U.S. v. Lassoff, 147 F. Supp. O44 (W.D.

Ky. iene ‘ 528 ;

” However, the instant case is Anigue ‘i in’ that it is,the ei f

case where the. affidavits to the search warrant do not con-

tain any factual information indeper dently corroborative

of the hearsay_report of the [iternal Revenue ayents chart-

ing long distar ‘excalls, Since the, affidavits do tiot indieate

that any informant’ was relied upon by. the agents to estab-

lish probable cause, it is believed that the instant case repre:

sents a substantial departure from Jones vi United States,

362 U.S. 257. ti a: ;

] Pos A

The’ affidavits to the search warrant and the evidence

heard on the hearing of the motioni to suppress co rtain

o. eae oi,

]

“s

Ps 4 3 ° t

“ev thence taken from the honie’ of the pe uilcnas uncontra-

: vertedly dhow: “..- -- =: ee hee

1. The Internal Revenuytigent’s | had - ‘no confidential -in-®

formation from any informant that fhe defendant ‘was en-

gaged-in a book-making ‘oparation. ‘ef: Jones v. Untied

States, 362 U.S. 257.) ° - Pi

2. The surveillance made by the agents did not indicate

any “sukpicious activity at the. prensises to’ be searched. F

3. There ‘was no regular pattern of activity of tlie peti-.

_ tioner known to the agents, ¢ither by hearsay or by djreet

" observable knowledge, which conformed to the KNOW n pat-

terns of the book- -making business.

On April 25, 1960, Special Agetits James K. Smith “and

"Francis C. Smith of the Internal Revenue Servi ice appeared

before the United States Commissioner for the Middle Dis-

‘trict of ‘Tennessee and executed affidavits for a teareh war-

rant to search the petitioner’s residence at 2806 Wedgewood —

‘Avenue, Nashville, Tennessee. See Appendix: D.. aM

. Pursuant to said affidavits, the Commissioner on said

date issued a search warrant for said premises, which search ° -

‘warrant Was executed on April 27, 1960..

The, fats in the affidavits to said search warrant mer

be summarized as follows:

That acterding to the records of the Soutien, Bell Tele- i

phonefand Telegraph Company, two (2) telephones located

at the petitioner’s residence, one of which was subscribed

to in the name of an alias, sometimes used by the petitioner,

“had been the»subject of a large amount of long distance

telephone ‘activity ; that Approximately two Inindred ninety- —

‘three (293) long distancé calls were charged to these two

( 2) ‘telephones during the one hundred five ( 105) day period

from January 1, 1960, t6 April 15; 1960. "That a number

of these calls were made to telephone numbers in other

’ af | ;

: Cities, said. phones bei ding ee ribed to hy persons who we rd

known gamblers and wo liad registe al and wyre olde Ts”

of the ocenpational wagering stamp ixsned by the Intyrsal

Revenue Servieé: that the petitioner, Nicholson, wast. mn"

‘kriown ‘gambler and book- thaker in the Nashville area and.

hack been arrested prev jiously for camblipg an book /mak-

ing activitie < at said residene e by Federal officers and had:

‘heen arrested by City, oflicars for gainbling activity ; that.

such long distance phone edll attivity,\ as set forthe in the

affidavit, i characteristié of a book-making operation:

that ap agvhtx, from the informa\ion above, had reason;

to he lieve tpt Billy Gilbert Nichol: m and/or others were «

conducting a lwok- making shina Lat said residency, afd.

said Nicholkén had not register ”

1 for the occupational

v- . >

Wagering stay.

‘ ‘2s =

‘ ‘

Gin lggring of the petitioner's motion to suppress evi:

“ denee, it was stipulated that In regard to the petitioner

y having heen previotisly arrested for hook-making agivity

oy Federalofticers, that theonly arrest mide Was some five

(5) tears previous, in 1955, and that a jo true bill was re-

3 turned in the cause; ~ that, in regurd to any arre st of

the petitioner by City of Nashville police offigers, he had:

never been convicted for gambljing activities. (R. p. 5-6).

‘affidawit Yor the issuance of the searc

_ Agent: Janies AS. Snuth, whose affidavit was the primary

h warrant, admitted —

at the hearing that he’ had. had no information, hearsay

or otherwise, during the five (5) years Pegg ‘1955 ‘to thes

. date of the issuance of the seurch wirrant, April 25, 1960, .

that Billy Gilbert Nicholson had engaged in any book

making activ ity in, the city of Nashville, Te TINessege OF hac

received or takgn wagers from atiyone (Royp. 60). Said

agent: further admitted that a surveillance made of the

premises, ° hefore the obtaining of the search warrant,

. * * - ©

. ‘ -

6 °

“ Shoaved nothing unusual or suspicious about thi. premises:

re ‘be svarched’ (Ri p. om). te

Both the, Dist riet Court and tlie United States Court

. of Appeals for the Sixth € ireuit. hefd that the volume of

fong distance telephone ‘alls, nd the inferences, to: be de-

rived from the character of the

arties. subser ibing to mi ny :

of the phones called, were siffficient® to justify a reasan-

. Mbly cautious man in believing that a violation of the oecu-s!

pational wagering tax stamp statutes ‘had. ‘oceurred. —T he

"property seized by virtue of ’sard search provided the: cir-.

cs cumstantial evidence upon which petitioner was convicted.

., The Question Is Substantial’

_Tt is submitted that the procedures utilized to obtain the

Issuance.of the search warrant in the instant cause, are of

such uestionable validity and. the. issues involved are of

-such ‘w idespread: importance as to justify “tlie yissitanice of.

the petitions. | aor ey

- Petitioner ssaiintta that prgkable ease does’ not exist

for the issuance of a Search-wayprant or SUS}eC ted violations

of said:statutes, without seme further factual infermation

> independently corroborative. of the inferences to be derived. -

r from the tong distance telephone call charting-method. “The —

Attorney General of the U nited States and the local United |

States District Attorneys arte vigorously pressing for in-

dictments of individuals accused of viol: iting -the oceupa- .

“tional gambling’ tax statutes, and. although the volume ef

+ litigation is large today, it will undoubtedly. increase due”

to the avowed public position of the Attortiey General. It

is belitved: that this ¢a use* presents squarely the issue of

whethei the naked use of -the long: distance telephone* chart-

ing system alone may support the issuance of. a search

warrant. . If the opinion’ of the United States Court’ of

Appeals for thie Sixth Circuit: is not reviewed, it will become

7 ‘a leading precedent for the wiglespread, intreased use of

%” such inethod. 2°. 4

The Question. Presented

ae te. Jone sv, v nited States, 362: US., established that’ ‘an affli-

: , -davit cons isting primarily of he ‘arsay information obtained

» « from-a reliable informant may be sufficient ‘to. suppert. the

issuance of a search warrant. A qualifteation on Jones has

been stated by its gba Ctreuit in United States v. Rami-

rez, 279 Fed. of 713 (CCA 2), Wate rian, J. * ;

ee eee (5): Jones VU nited States, 362°U.S. 257, 267-272, 80

gis: "S.C. 725, 734-756,.4 L.Ed.2d 697° (March 28, 1060) has

| oe now established that an affidavit cousisting primarily

of hearsay information may he suffic dent to support .

the issuance of-a search warrant... However, the re-

A edge still extsts, for, under Jones, the, diffiant, must not

only believe the. hearsay report, but, inéall likelihood,

the afliant gust further demonstrate that his informant

has established a reputation for -relidbility: 80 as to be

worthy af belief. In addition Jones may require that

the affidavit include some fact wale information inde pen-

‘dently corroboratir eof the.hearsay report... (Enm-.

a , | phasis supplied)

ee _ United States: v. ‘Ramirez, 279 F.2d Te at p. 7105.

In the case at bar. there, was ne inforination from a re-*

liable informant; there was only a he garsay report made up

per escae _ by the agents, Which. was not corroborated in any respect,

There were less than three (3) long distance telephone

\' alls per, day made to or,from-the telephones at the resi-.

dence to be s@arched: Such volume 6f activity was not un.

_- usual in the year 1960. “Maiy residences threaghout | the

.° - country have two (2) telephones and-a large number of

aoe ee

‘long distance te lephone calls are mare dai aily on, suc Ah tele :

phones.

Further, petitioner may well have beet e ngag ced in san

bling” on his own behalf as contended at trial It was aun.

disputed that the telephone calls were made to parties who

were registered for the eceupational Wagering tax Stamp,

‘and as such, were: nah violating the statutes of the United

States in accepting Wagers. To allow a seareh of a resi.

derice under the facts presented in this eiuse would justify

the issuarice of search warrants for the search of the re si.

denee of a person never previously convicted of a erime

simply on the basis of the amount of long dixtance tele

phone activity, if a portion of these calls Were made to par: -

ties who’ were known to be gamblers. Such a rule cannot

be justified under. our traditional concepts of the consti.

tutional prohibition’ against ss acca searches of ae

man’s residence. ve Pig sess .

Of course, there has been some latitude granted. regardjng

the searehes of moving automobiles and the like, becanse

of the transitory nature-of the crime suspected, Be ‘fore a

search of a person *’s residence should. he authorized, (ov

ernment agents should have possession of such other apd

5 further knowledge that would corroborate or estrengthen

the inferences and suspicions ‘that may be Uirived trom

long distance telephone. eall activity. -

“Onie District Court has sustained the’ -alidity of. eens:

sition asserted by th¢ petitioner. In nited State sv. Las-

_soff, 147 F. Supp. 944. (KB. D. Ky.” Swinford, Judee), the

Court first found thé search warrant to he defective hee tse.

only conclusions were set oft in the affidavit:, However, —

the United States then took the position (See 147 F. Supp.

949) that if the search warrant was invalid, the motion to° .

suppress should haye been overruled beeause there was

sufficient evidence known to’ the agents which formed valid

grounds for a lawful arrest Without a search warrant.

“suppress and stated the following:

é.

-s

pia ash . 9

Se eS

“The ¢rounds telied on by the Government: were . very

similar wo those set forth in the affid: ivits in the searcli war-*

rant in’ the instant cause. eee

Judge Swintord, in his degis sion, sustained. the motion fo

‘

Ms, . The facts ip the knowledge ef the agents at the

_g time they broke the outer deor of the building ascended

the steps te the sefond floor. and broke down the doors

‘into the sécond floor rooms were merely the result of

nothing more than hearsay acquire ‘dat the conference

in Pittsbureh.- There was: certainly notiaasie itt their aa

observation of the builditig: while they ‘held: it undet

" eurveiliance that would justify their a that a

fe ‘lony ‘Was being committed on the’ second floor-of the

Ry building. ‘I ven the records of the te lephone agencies

. = 33.

in’ the local area, Which may be cons sidered ws valid

first. hand information about which the agents could

testifysbefore a jury, indicated no law violation unless

coupled tothe information acquired at the Pittsburglr. -

conference, - If is true the y had knowle qe of HMINCTOUS

long distance telephone calls fron’ the WA5 Monmouth

Street address but that alone is not sufflcrent. nor does

it appear to ‘be ‘so unreasonable as to indie ate that the

7 ocenoants of the building were rngage din operating a

handbook. for wagers on aporting events...’ "> (Em-

phasis suppli®d) “

United States Vv. Lassof, 147 F. ‘Supp. 944, 992, 953.

The U nited Stites Court of eeu in the case at bar

relied primarily on the rule of law that probable cause re-

quires an act of judgment formed in Hight of the particular .

situation, and that because ‘many ‘situations are more or

less ambiguous, a ie ‘termination that probable cause exists

and should be accepted unless,it is shown that the U.S,

-/ ‘ re

° P .

Commissioner’s judgment was arbitrarily exercised. AL

though this is the law, the Courts should always eXamine.

the particular situation: to determine whether, probal de

Cause exist’ : :

( ‘ontrasted to the instant case is 0 nited States v. Jacoh-

sen; 198 F; Supp. 386, (D.C, Conn.) where’ the agents utile

ized the charting system together with information receives

from two (2) reliable informers who had furnished reliable

‘infogmation in the past to search+premises occupied by a

certain known ‘book-maker, who was vengaging «in hook-

making activities. Petitioner has no quarrel that the Ja--

‘cobsen case, as it ‘illustrates the. problem im, the instant

cause,, In Jaé@obsen, there was corroboration acgeptable

under-the doctring of Jones vi United States, Sepra, as the

‘inferences derived’ from the long distance sia Meon chart-

ing method were ‘verified by information from reliable

informers. . , a ‘

It is not difficult fot Government’ agents to obtald <uc h

corroboration, | Book-makers do not exist in a vaenum.

They must do-business with many customers. ‘Information

from an informant or information—obtamed-trom “direct,

Wagering is not difficult to obtain. Surveillince of. the

premises, carried out long enough should always reveal

some activjties of persons coming in or going out which

would be consistent with a book-making oper ration. Pay-

ments have to be made, ahd collections have to he aniaddes

Sooner or later, a book-maker must do both. It is simple

enough for agents to. corroborate and to- implement their

‘suspicions derived from the ehar ting. system. The interests.

‘of justice should not be subverted by relaxing the rutes to,

upliold ‘searches, made on skimpy information spliced: tor

gether by unenergetie revenue agents,

‘e

——

Conclusion Yr cts os : ay

It-is subnfitted that the Court tras jurisdiction and should -

hear these petitions from a judgment. denying a basie con-

stitutional wight guaranteed by the United States Consti-

tution. |

Respectfully submitted,

Harris GiLwert,

Warp Hepains,

’ ae . Attorne ys for P ctitioner,

é 1316 Nashville Trust Buitdiig,

Nashville 3. Tennessee

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©.) APPENDIX A

Te. Hes. 14567, 14807

Usirep Srates Court or Aprrats ror THE SixtH Cinevir

No. 14807

Usiren S ATES OF Amenica, Plaintiff-Appelleia

‘.a

Bitty Gitsexr Nicnoisoy, Deve ndaut. Appellant.

- 4

’

No. 14567

Usirep Staves or A MERICA, Plaintif’- Appellee,

——-,

"+ Bruny GusenrN ichoLsex; Claimant “of 47, 198,00 in United

ne, ae Money, De fendant Appellant.

"Decided May 24, 1962.

Apreats from the United States District Court f6r the

Middle District of- Tennessee, Nashville. Division

Before: Mutter, Chief Judge, Ww kick, Crreuit Judge and

Starr, Senior District Judge. ,

Miuier, Chief Jndge. Appellant Was proceeded against

-in.the District Court by criminal information which, charged

in thé first count that- being a person engaged in the busi-

4412, Internal Revénue Code of, 1954; and whic h charged:

hess of accepting ra he did wilfully fail and refuse to:

“in the second count that being so. engaged hé failed and .

refused to pay the special vaitional tax imposed. by

Section 4411, contrary to the. PMovisions of Section 7 262,

Internal Revenug Code ‘of 1954. He was found guilty, by

a jury under both counts -of the information.

The Government also filed a libel in the same pouty seek.

. °

ing the forfeiture of $7,198.00 in-money - alleging that said

money was possessed -by the appellant and intendes { for use’

by him while carrying on the business of receiving wagers —

without having paid the special taxes: iniposed by Section -

4411, Internal: Revenue ¢ ‘ode of 1954. Tt was fereed that

the District Judge. Gould consider the evidence intreduc ro

in the criminal ease in deciding the dibe) ease. The District -

Jinige found in favor of the Government on the libel cause.

The “ipype als in ‘the two cases were heard testy ther in this

Court. ' .

Appellant’ < anain contention is) that the Distriet_. =

erred in refusing to grant “his niotion lo-snppress: certain ’

vide nce on the ground that the aflidavits upon which -the

seareby warrant Was issyed were not sufficient to justify the

i<suaneée. of the Warrant, did that thy’ District Judge erred

. in‘denying his motion for pore acquittal 2° 06. |

The-affidavits, ¢ *ewuted by two Apecial agents of the Inter.

nal Revenneé Service, stated that appellant was residing at

_premises of his mother-in-la . described as 2806 Westwood

Averine, Sashville, Tennessee that he was a kr own gainbler .

aiid hookwiaker im the ? Nashiv ille area, that his mother-in-law

‘was fhe subsériber te one telephone in the premises, that

two additional tetepliones in the premises were subseribed

to in the name of Robert Walker, which name was an alias

sometimes used hy aappelkan, that a known hookmaking

operator in New Orleans, Aouisiana,. had made numerous

Jong distance telephone calls to one of the aumbers listed

in the name of Robert Walker, that from January @, 1960,

io April 15, 1960; ‘approximately 292 long distance calls

were charged ta the two Robert Walker numbers, that many

_of these calls were made to phones whieh were-subseribe d

to and ased by persons w ho were known gamblers and book:

makers in Birmingham, Alabama,.and Biloxi, Mississippi.

that numerous long distance calls were made to these two

numbers from phones in other eities listed in the nanies

of known gamblers and bookmakers in Clarkson,.Georgia,

Philadelphia, Pennsylvania, and Jacksonville, Florida, cand’

that such long distance phone vall/activity was a ¢ harge teris.

tic of the bookmaking operation. The Commissioner w is

of the: opinion that there was probable cause to believé

" ~¢:® ( :

that eertain property, whicli Was, elas’ used in violation of

Sections 4411, 4412 and 7203 of the Internal Revende ¢ Code ;

of 1954 was being concealed. in the described premises atid

issued the search warratit, in the executiog of which prop:

erty was found, whieh | was jater used i in the trial under the

~ two counts of the information. — : ee

~_L-supiport of his contention that the facts stated in the

_ affidavits did-not “onstifute probable cause, appellant relies

largely Upon what ‘the affidavits. do not state, rather than

an: analysis of what ihey do state, He points out that the

- agents had.fio information that appellant was conducting

a bookmaking operation at: the deseribed premises, that’

they had no information that. appellant had accepted 4

wager in the five years preceding the raid @gat there was

no evidence that appellant’ had, ever been convicted for

gambling activities, andthat there was no evidence of. people

going in or cGming out of the premises or of any siispicions

activity about the premises. . |

The absence of. such facts was a matter which was prop

erly for the consideration ‘of the jury in the trial on the

merits. But there’is a difference in what is requirtd To

show probable cause for an arrest or search and what is

“required to prove guilt in a criminal ease. P robable cause

sufficient for the issuance of a search warrant deals with

probabilities. Cofiviction in,a criminal case requires ‘proof

beyond a reasonable doubt. Brinegar v. United States, 338°

U.S, 160, 174-175. The absence of faets which might canse

the jurveto have a reasonable doubt of a defendant’ s gnilt

_ does fot mean‘that. the facts which are.stated are’ not suffi-

cient to. constitute probable cause for the execution Of a

search warrant... Probable cause may exist even though

in the execution of the warrant nothirig is found. United

States v. Eisner, 297 F (2)-595, 597, CLA. 6th.

_ Probable cause exists where: the facts and circufistances

* within the officer’s knowledge and of which they had rea

sonably trustworthy information are sufficient in dion.”

sélves to warrant a mar of reasonable caution in the belief

that an offense has heen or is heing committed. Brienegar

v. United States, supra, 338 U.S. 175-176: Drapery. United —

States, 358 U.S. 307. Whether probable cause exists requires

° 15

a 4 Ye i

an act of judgment formed in the light of the particular

Situation and with-account takén of all the cireumstances

Because many ‘situations are more or less arfibrzuous, a

determination that probable cause exists should be ac cepted

hy this Court-unless it is shown that. the Commissioner's

judgment’ was arbitrarily, exercised: Brinegar’¥. Unite d

State s, supra, 388 UL S. 176; Ie rritt vy, United States, O49

_ F.(2) 19, 20, C, A. 6th. We are of the opinion that the

search warrant was legally issued and that the motion to

+ SUppress “the evidence was properly overruled. United:

‘States v. Schwartt, 151 E. Supp. 399 W. D. Pa.

In the trial on’ Ase merits, the appellant's defense was:

that he was not a bookmaker but was a gambler whe made

is living by betting op his own behalf on various sporting

events ‘throughont the country. In addition to evidence

about the two telephones and the long distance ealls between,

- appellant and’s famblers who possessed ocenpatéonal wgser-

ing stamps, thé Government intreduced in evidence various

articles foutd in the seareh of the’ premises; including a

piece of charred. paper with initials and numbers on the

rgmains, some twenty sheets of flash paper, Which was paper ,

Asateatly treated so as to be totally consumed hy frre

almost instantaneously, a wall blackboard; three boxes of

white chalk, a box containing some-900 calling cards with

“Call Bill or Merb’ written on them with the two telephone:

numbers on the back sides, casi? in the amount of $6,498.00

frem appellant’ « pocket and in tie additional amount. of |

- $700.00 in-a small-locked safe, and several sports publica-

‘tions of some of which there were 25 copies... There was

» also evidence that some paper was smouldering as the

agents entered the room, and that the two telephone um

bers were unlisted numbers. Although appellant claimed

to bea wi jiubler on-his own behalf, he had not so stated his

occupation on his. Federal Income Tax returns and he did

‘not make speha Claim at the time of his arrest. It is not

‘a federal offer ise'to. make bets on your own behalf. Un

— expiration of the two unlisted telephones he answered the

‘question. Did it require vou to have two telephones just

4o carry on the regular betting business ?** by say ing Well,

I would say that it wouldn't lrurt you ang to have two’,

o ® . , * : 6 a , ° an

a i S

° ee '

with thts lanation “Two! s almost as cheap as one.

There’s hot much difference.” He later-admitted that it -

tost hini twice as much for two phones as it did. for one,

but that *‘you get double the use out of them.”’

Although the evidenée of appellant’ s guilt_was entirely

‘Greumstantial, we ayé of the opinion that it was sufficient

to take“the case to’ the jury and to support the verdict.

dt nited States v, Chmer, 288F (2) 174, 175, C. A. 6th; Uuited

States v. Baater/289 F ( (2) 487,'C. A. 6th; Unite “d States vy.

Leggett and Eleveld, 292 F (2) 423, 426-427, C. A. 6th;

Holland v. Ufited States, 348 U.S. 121, 139-140.

We have onsidered other questions raised by appellant

but are of the opinion in accordance with. the views’ ex. |

pressed Ay the District Judge in overruling appellants

or a new trial, aa no- prejudicial error was com-

. APPENDIXB

Is true Distrigt Court or THE U xireép States FoR THE Mippie

Distr: ICT oF ’ Tes NNESSER, NASHVIL LE Division.

e " + oe

ae fo Sl No. 12,94.

Unive States oF Amenica,’

a pee ot Sy : .

eg Bitty GiLBent Nicttoisox.

Memoranpum

“(Received for. Entry Sep. 99, 1961) |

This cause is before - the .C ourt upon the defendant's me- "

tion for a new trial on the following grounds:

. (1) That the Court erred in failing to grant detendani’ s

motion to suppress certain evidence on the, ground that

the search warrant and the supporting affidavits contained -

no competent. and credible evidence upon which a finding

of probable cause could be made to justify the issuance of

‘the search warrant. « “9

(2) The failure of the ( ‘outt -to ‘ich! the de fendant's ‘j

objection, to the admission of certain evidence: ev ‘idence

obtained in the 1955 raid; the’ admission of .the alleged

identification of letters by Agent Smith: ‘based. on informa-

tion obtained ‘as a result of the 1955 raid, and the admission

of opinion evidence given by Agent Sinith as‘to the effeet

to be given the initials and pumbers found on the photo-

- graph.

‘motion for a directed verdict. Sean .

The Existe nce. of Probable Cause for the ecules of the

Search Warrant :

The tern. probable cause when used in this connection

has been defined “as a reasonable ground -of suspicion,

supported: | me circumstances strong in themse Ww es to war-

(3) Phe failure ‘of the ( ‘ourt to grant the defendant’ s

257, 271 (1960), holding that hearsay evidence may be. the

basis for a fiy@ingeof probable cause,

‘able cause was made upon allegations inethe afiidavit of |

~-defendant's activities which were classified as conforming

.to the known: activities of persons in the numbers business.

rant a caittions man jn the belief that the person accessed. -

is guilty of the offense with which he is charged: Whar-

ton, C riminal Proeedure, ‘See.-1541. . The: beligf need not

be actual ‘ ‘or impart absolute certainty but only a reasonable

ground for. a belief of guilt: Brinegar v. United State <,

' 338. U. 8.160 (1949), Mere affirmance of beliefoor sus-

picion is not enough. The: warrant will issue, oily upon

evidence which would lead a man of prudénce and caution

_ Ao believe that the offense has ‘been committed, but the

quantum of. evidence necessary to show probable cause

need not be sufficient to support a verdict, of guilty.

Wharton, supra, at See. 1542. ;

The defexdant relies upon the following proposition of

law; ous ;

et . ‘

“A search warrant may. issue only upon evi-

dence which wéuld be “competent: in the trial of the

offense —— ‘a jury (Giles y. United States, 284 F.

208, C. ; Wagner v. United States, 8 Fo.2d 5st,

©,A, Es sa would lead a-man of prudence. and

cautian to Welieve that the offense has ‘been committe “l.

- ‘Steele v. United States, 262 U. S. 498, 504). * Teste: A

by these standards, the ‘affidavit was insufficient.’

Grau v-U nited States, 287 U.S. 124, 1: 2s;

The. U nited States Supreme Court in Brinegar v. United . ”

States, 338 U.S, 160, 174 (1949), expressly found that the

Grau quotation 1 was dictum atid that there is no authority

. in the decisions of the’ Court to support it. The-Courd in

the ‘Brinegar case sustained the’ ‘trial coypt’s admission

of hearsay testimony for the purpose of showing the exist. *

ence of probable cause but rejection of the same evidence

on the issue of guilt. Gf, Jones v. United States, 362 U. 8.

‘The case of Meritt v. I *nited States, 249 F. 2d 19. (6t

Cir, 19; a7), is particularly apposite tothe case at bar. The

search warrant was deemed valid where a finding of proby-

Vt np ag

~ VAP AO A np a - e

“4

The Court further stated that the Seow depss deter-

mnination of the existénce af prabable cause Was conclusive

to the

unless tis judgment was arbiter urily exere ised. If seems

Clear =< an examination of ‘the two affidavits <ubiuittted

ommissiongr, that bis. finding of probable: canse

that a crime was being committed, on the siiject pranties °

was not arbitrary. Affiant James K. Sinith special Agent. :,

of the [nitelligeticé . Division, Intertal Revenne. Service,

US. Treasury Department, made oath that a known book:

uiaking operator in New Orleawe, Louisiana. had made

numerous long distance telephone ealls 40. CY 7-5534, Nash

ville, Tennesses ; that approximate ‘ly 205 culls were charged

to CY 7-5534 and CY 7-5555 trom myary 1, 19600 to April

15, 1960; that mmnerous calls were made frog these mum:

hers 10 Mississippi, Georgia and several Malhiivea numbers,

these phones- being subse ribed to and used by known hooks

makers and gariblers: that CY 7-5534 and CY 7-535 are:

subscribed to by Robert Walker, a known als of the

- defendant: that ‘the defendant had not been issued a fed.

eral wagering stamp: that sieh dong ‘dixtinee telephoning.

“s Activity Is a characteristic of the bookmaking «operation ;

federal authorities in this ‘connection

and that the defendant is a known giaubler and bookmaker

in-the Nashville-area, faving been arrested by city and

for Jaking bets.at

the same place that was then sought to be searched, ,

The governnient and the defendant in. their respective -

briefs diseuss two district coutt opinions whieh are sinm-

ilar on this point to thé instant case, Botlt eases concerned

«the validity Of a.search of premises suspected, of housing

illegal bookmaking activity, United States v. assoff, 147

F.Supp. 944 Oi. D. Ky. 1957), involved. the question: «a

whether there was probable, case for the issuance of

search warrant on the following tater nents presented fr

aGdavit. - ' ee ck he

That affiant foket 4 with certain of Iris ‘agents

is engaged in making an examination of this Situation:

in. Newport, Kentucky; that hie. has learned that the

preniises described are being used in a gambling ac.

* “tivity that records: of such activity. are being. kept’

at sich premises ; that afliant has verified that no

: ‘ ‘ d te ‘

“2:

gambling | has beea issued to any person at 1045

“Monmouth Strtet, Newport, Kentucky.”’

= i é °. ms . ae _ =

The Court held that the sworn statements were not

suflicient to- justify ‘a finding of probable cause as, the affi-

davit Gontained no substantial facts but conclusions of the

afliant. sy Ba Neen ee ;

Unitad States v. Schwartz, 151 F. Supp, 339 (W. D. Pa.

1957), involved the same question.. However, in that case,

the affiant’s statements contained the’ averments that a

substantial number of long distance ealls were made f¥6m

the subjeet’s residence to persops who. had reputations or

records of bookmaking dctivity. The Court: distinguished

the Lassoff ease and held ‘that there. were sufficient tacts

alleged to justify the i issuance of the.warrant.

Upon a careful examination. of Bie affidavits and upon

authority oft the cases citeg, the Court is. of the opinion

that there.was i sufficient Statement of facts to justify

‘the € oumthissionér ‘s finding that a crime was’ béing com--’

pitted, ; : i

The Sufficiency of the Evidence to Support the Verdict of

Guilty

At the.-outset it aust be said that the government’ s

case is essentially circumstantial. There is no direet evi-

dence to the effect that the defendant was accepting bets

in violation of “See. 7203, Internal Revenue Code of 1954.

The. defendant contends that for circumstantial evidence

‘to be suflicieut the facts must exélude every other reason-

able hypothesis except that of ‘guilt. . This proposition is,

however, not the law. The United States Supreme. Court

ae nuequivoeally stated that all that is- required is that

the jury be convineed beyond a. reasonable doubt. Cireum-

stantial evidence is intrinsivally no- different from ‘direct

or testimonial evidence, Holland v. United States (1954),

oe TU: S: 121. ae es

A summary ‘of the voverninent 's evidence is as follows:

(a) The defendant had two telephones in his

are Be jhe ‘e listed under aliases with the ‘Aelephone com-

pay. : ’

pone : 1 Lon |

Pare, :

(1) During the last thirty A: 30) day ered checked

before the raid,’ sixty- live (65): ldne distance éalls

‘ were Inade to and from the eae and during the

* one hundred eighteen (11s) ‘days before the raid, two

sun red Pnety Ares. | 2903) such calls were charged

to the twor(2) numbers (Tr. 55), .

(ce) A number cof these calls were made to known

* vamblers in-other. cities, °. :

, 4. 2. There was found in the room a piece sof ceavied

: ja, With initials and numbers ‘on the reniains.

; There were some twenty (20) °sheets of flash

c paper found, and the. desk Was se ‘arred by. yurned

flash paper. There was smoke in the’ air when the

government's age “na entered the house. i:

4, There Was ‘gund in the raom a blackboard of

which was iat certain baseball pitchers and their

previous years’ searned run averages :

aks ae ' box: ‘containing some nine handred (900). eall

ing cards was found with ‘Call Billjor Herb’ and

the telephone numbers on, the back side. |

6. Six Thousand . Four Hundred = Ninety-Kight

($6,498.00) Dollars im nage was found in tite defend:

ant’s pocket, and Seven Htndred ($700.00) Dollars

| ; wis found in a small loe ed sate, :

“ - % 7.-Numerous sports publications, many "of them i

x | inne quantities, were found.’

: The dete ndant ‘takes tig: position that certain: matters,

“normally associated with gambling, were not found, and

secondly, that the items of the government's proof ‘are

not inconsistent with: innocence. But. it is only necessary

that sufficient evidence consistent with guilt be addueed.

-. to justify a finding of euflt beyond a resonable doubt.

*° The Court‘is of the opinion that the governinent Has pre.

sented such a case. . : prea + '

~The’ Inadmissibility of, Certain Ey idence

‘Arent ‘Smith testified that the charred remains of a

. " piece of paper were found on* the premises during the

search and he identified “and introdyted: into: evidence a

*)e)

fe . \ . ;

large photowr aph thereof: He fuxther testified that he wa

able to identify as ene of thre® names on ‘the bits of paper

the name of *Leo Ly and’that-the same name was found

On a previous oceasion*it 1955 one. a raid.on the same ©. hes

premises. At that time he identified ** Leo ‘L.*? as a person /

naned Leo Levison, and in explaining his, identification > / i

he testified that in 1955, when the Nicholson place was. :

craided, actual betting tle kets. Were seized with “*Ted L.

thereon, and that be also ‘found -some mailing: éddresnes

on the premises having the name of Leo Leyison. Agent

Smith then testified that ‘twe contacfed Mr. Levison. and

: he gave us an_affidavit that that was his bets identified P

as Leo L:’’ Objection was niade ‘to *the testimony of Sig

Avent, Smith identifying the name appearing on the slips re -|

of paper. The Conrt sustained: the objection with respect - |

to that portion of the testimony in which Smith ‘stated *

that ari affidavgt) had been’ obtained from Mr. /Levison

identifying the name of Leo L. on the ‘slips of: paper as

lis owat, Loweve=2 thie Court overruled the objection as-

to the remainder of the testimony. The defendant in his

motion for a new trial assigns’ this, ruling of the Court |

as error, JHowever, the Court is of the opinion that with |

the testimony as to the affidavit stricken, the remainder’ -

of the evidence was not based upon hearsay. Smith testi-

fied | (aside from. the ‘affidavit) that. his identification of

“Leo. L.”? as Leo Levison was also made by comparing

the Sit paper with the mailing addresses, all of which

— were found on a. previous occasion in a raid. This was *

direct testimony based“ upon Smith*’s own observations

and was competent to go, to the jury to determine whether

Leo L. and Leo Levison were one and the same person..

3 he defendant further objects that the’ Court. was - in

* error in allowing Smith to. testify that J. Robeno, whose

name was also ‘ound on the slips ef paper, was a well ee.

known. &ambler-im Birmingham. It appears: that Snuth ~ bareencs

testified categorically to this effeet and in the absence of

cross-examination by defendant's counsel; it conld not be

known just what the witnesses’ source of information was.

If such information Was actually based upon hearsay, it

was incumbent upon defendant's ¢ounsel to explore the

—,

matter and by) cross-examination- disclaye to the Court

facts which would render the testimony incompetent. If

it then deve ‘loped that the testimony wad based upon hear-

say, gieappropriate objegtion could have-been maide, Since

this course Was not followed, the Court can see Ba reason

why the ev idence is not competent,

The third objection is*that some ef AXgent Smith’ s testi

mony represented his opinions and conclusions and dhere

fore was improperly admitted. This. objection has no

me rit for the Court corréetly allowed Smith to testify as ,

fa expert after the governme nt had Hadid a proper fouiiea.

‘tion. The use of such “expert testimony’ is proper when

the subject matter of an inqniry is so far, removed’ from

thesrealm of commoir experience that the ordinary. jury.

camiot fairly = expected to draw a correct inference from.

- the facts. J.S. 217. A test of admissibility of” expert

. jeatimndny: is i wastes the jury would be aided’ by receiving

the ev idence. These tests readily attach to the, factual

situation. in the instant ¢ase.- The jurors can reasonably

be said to -be unacquainted with the operation of a® book-

making. establishment and the testiinony of a properly

qualified expert as to the general hucalonen prac.

tices, and procedares of, such an operation wonld be. of

material assistance to the jury. There was no error in the

admission of Agent Smith's testimony in this-respeet.. ¢

The motion for a new trial is without merit and must

be overruled.” — cad

es s Wa M. _E , , Muse, ———

° United States ‘District Judge.

’

APPENDIX c- i

: *

“See, A. Imposition of tax”

“There shall. be infiposed sapee ial tax of $50 per year to

be paid by each person who is liable for tax under section .

4401 or who i is engaved in receiving wagers forsoron behalf

of any person so at Aug. 16, 1954, 9:45: ain, J ». a

c, 736, OBA, Stat. a27.""

Sec. 4412. Registration ;

(a) ‘CRequireme nt. Fach persom required to pay a-specia!

tax under this: subchapter shall register with the official in

charge of the inte rnal revenue dist riet—

(1) his hame and place of -rpsidence;

(2) if he is liable for tax under subchapter. A, each place

ot business where the activity which makes. hinr so ‘liable

is carried on, and the name and plae e of residence of éach

-. person Who is engaged in receiving wagevs for him or on,

his behalf ; sand. res oO ge

(3) if he is engaged in receiving wagers for or on behalf

of any person liable for, tax under subehapfer A, the name

- and place of residenc® of each suc ‘+h person.

(b) Firm or "eompany aW here pubicetion (a) requires the

name and place of ‘residence of a firm or’@ompany to he

registered, the names and places of residence of the several

» persons constituting the firm or company shall be-registered.

Miiromer

tions prescribed by the Secretary, he or his delegate may

require from time. to: tinie such supplemental information

from any person required to register under this section as

may be needful to the enforcement of this chapter. | Ang.

16, 1954, 9:45 a.m., CB, D.T., ¢. 736, GSA Stat. 527."

See. 72003, Willful failure to, file return, . supply information,

‘or pay tax

‘Any person: require al under this tithe to pay any estimated

tax or tax, or required by thistitle er by revulations made = 7

_ under authority thereof to make a -return (other than a

return required under authority of section GUS ‘or section

6016), keep any reeords, or supply. any information, whe

willfully fails to pay such estimated tax or tax, make such

return, ‘keep such records, or supply such inform: iv

the time or times required by law or eutedione shall, ms:

additiow to other penalties previded by law, be enilty of a

misdemeanor and, upon conviction thereof, shall be fined

not more than $10,000, or iniprisoned not mere than 1 year,

-or both, together with ~ costs oF prosecution. Aue. 16,

1954, 9: fo aan., E.D.T., ¢. 736, GSA Stat. SoTL" .

Sec. 7262. V iolation: of occupational tax laws. relating to

oupsing. Failure to pay special tux

**Any person-who does any act whie homakes him liable for

special tax under subchayiter B oof chapter. 35 without-hay- -

‘of the tax, -be fined not less than $1000 and not-more than

$5,000.. Aug: 16, 1994, 9:45 ain. ELD... ¢: 736, OSA Stat.

862." :

U.S. CoystircTios—AMESpaes'’ (IV ve

“The right .of the people.to be secure in their’ persons,

houses, papers, and effects, against unreasonable searches

and: seizures, shall not be Violated? sind: no Warrants shall

issue, but upon probable cause, supported by. Oath or affir-

mation, and particularly describing the’ place to be searched,

and the persons or things to’ he seized,"

> e

eo,

26. - .

o- 2 , ;

o> ° ‘

APPENDIX D-

eae

MS oc (Filed Jun 29, 15160. } ;

U sirEy Sta’ TES Distucr. Counr por-rrE-M I aaa aD Ce __ ae aa:

pte See Distuict oF TENNESSEE .

Case No. 53k i

Affidavit for Search Warrant. ee

Uwsirep Sratres or America,

" PC. ,

Puesse Kxrown As 2806 Wesrwoop AVENUE. NASTIVILLE. =

~ TENNESSEE.

. -

Arripavir ror Searcau Warkanr. ' ra

. . “ ; : Fd

a Ny * (Filed Jun. 29, 1960) . ‘

- Before J. Wasuixctoxn Moore, Nashville, Tennessee: - eS

Name of Commissioner Address of Commissioner

The undersigned being ‘duly sworn deposes and says: ~ |

‘That he has reason n to believe.t jeve,that tn the-premises a

as 2806. W estwood Avenue, Nashville, Tennessee, further

_ deseribed as’ being the fourth house on the north sic

Westwood Avenue and being west fr om the. intersection

Westwood Avenue and Natchez Trace as sliown in attached ~

sketch in the Middle Judicial District. of Tennessee, there *

is now being coneealed certain property, namely bookmak- |

ing recor, wagering paraphernalia consisting of bet t slips, A ie eee

. here deseribe property .

pong ran sheets, account sheets, recap sheets, and money.

‘used in or derived from a booking operation’ which are, -

being used in violation of Section 4411, 4412 and 7203 of the‘

. - here give alleged grounds for Search and seizure

: Internal: Revenue Code of 19: os. .

e ¥ ; if . . fr ; :

es And that the facts tending to establish the foregoing

> «grounds for isstianee of a Seatch Warrant are as. follows:

RevenaesService, US. Treasury Departinent, assigned. to

tho Nsliville LHe ssee Distries office of the Atlanta, Geor.

- gia, Region. Jn connection WITT hepato nice of miv

cute: dnkied and upen exariin bLion of the: efficil records of the

Intelligence Division, [found that a known boolksnekine

operator in New Orleans, Louisiana, has ifiade ntimerous

lane distanee tele phone’ vals to tele phone mantirder ¢ Y press!

7-09054, Nashville, Tenne Sse,

Upon examination: wf the neeords Of the Southern Bell

Telephone and Telegs ‘aph Company, Nashville, Tertiossee,

I found that’ phone number CY press 7 904 aud CV press

75925 are sufseribed te by Robert Walker and are, lotatted

‘in the premises of 2808 Westwood Aventio, Nastiville, Ten

hessee, | further found that a person bw the name of ML: alle

Hutcheson is the. subseriber to phone Hoenn er - Ypress

7-1460 also Weated in. the ise of 2806 - Westwood

Avenue: ° . tae

ae saves Ko Sworn,

eons , op @sSignature of Affiant,

Special Agent Jars Ke Swern,

“Offic wal Title, If Any.

Sworn to before mie, and onbee rilvedd in my pre Sener Ayn i

2. 1960. ; : ; ‘

ye ae wr FP Wissesavas Moorr,

Vnited States Conniiesione “ae

’ . . «2

The official records of the Intelligence Divisidn further

reveal that the name Robert Walker is an alias Sometifnes -

used hy B: liv Gilbert’ Nicholsom that, Billy Nie ‘holsom muar-

ried a daughter of Mable Hutcheson ih December, 19 2

and that both hate resided swith Mrs. Tinteheson at 2806

AVestwood from time to time. Current observations re eal

that Billy Nie hélson 4 is presently residing at 2806 Westwood

“Avenue. . ‘

Billy Nicholson is a known gambler and bookmaker “in

the. Nashville ¢ area and has been arrested by city and fed:

. te

- oral law enforcement’ offieers in connection with gambling

and bookmaking activities, When arrested by the Federal

officers, Nicholson was found to be conducting a bookmaking

operation. ftom, the address of 2806, Westwood Avenue,

Nashville, ‘Tennessee. 1 persenally participated in this

arrest and observed the bookmaking operation at thi<

address. ° - ‘

é My @xamination of the records of Southern Bell Tele-

phone and Telegraph Company records reyealed that mim-

érous long distance. calls were being ‘made to ag from

telephone number % 'Y press 7-54 and CY press 7-103,

eNaenination of these Jong distance ealls further revealed -

located at 2806 Westwood: Avenue and that from the a2 riod |

January 1, 1960 to April 15, 1960, approximately 293 such

long distatice: calls were charged to these numbers. My |

that numerous calls were hein tiade to the telephone num

hers listed below:

“Phone . ee

‘Number | ae City .

TR Y4M4OL ae Birmingham, Alabama

ID 22635 ‘ Biloxi, Mississippi

The official records of the Intelligence Division compiled

from examinafion of the ree ‘ords of the Telephone Jompany

and i investigation madeof the subseribers to the above listed ~

phonies reveal that these-phones are subteribed to ant) used

iy persons who are known gamblérs and bookmakers in

Birmingham, Alabama, and Biloxi, Mississippi. . For addi-

fional information regarding Birmingham phone TR 9 401

see attached affidavit of Special Agent F.C. Smith.

The official records of the Intelligenee Division, compiled —

from investigation made by agents of the Atlanta Region,

reveal that mimerous long distance phone calls. have been,

made to CYpress 7-5534 and, CYpress 7-5535, Nashyille,

‘Tennessee, located at 2806 Westwood Avenue, from the

folowing listed phone numbers in other. cities and that the

gamblers and bookmakers,

‘subseribers to the phone atimbers listed below are kriow aid

‘ i. ¥ '

’ \

. e 29

: Phone : =: ; er pene ‘

Nuriber. “City - Subscriber

‘a 37111. Clarkson, Georgia ~ Johny O. Tyler

Be a! || eee cae ere ata ities nats

HI 3.7113 ; “3 se o 46» ae wa : ye

Hil 33-7114 - <s eis - ve GBT OE ee

LI 87154 Philadelphia, Penh. Emayrel Manideiblate

BEX 8-421 Jacksouvi Ile, Floridn ‘CLA, Williams ;

apie fe ns

The official records of the Inte}iigence Division farther

reveal that Jolinny’ O. Tyler, lisyed alhove,-is the holder of

a current Wagering: occupational stamp with the District

Director of Internal Revenue, Atlanta, Georgia.

Long distance phone call activity such as set forth above |

ix a characteristic ‘of the bookmaking operation and the

information -presented above: gives ane reason to believe

that. Billy Nicholson and or-others are conducting a book-

making operation from the address of 2806 Westwood Ave-

nue, Nashville, Tennessee. r

. L pers nally mide a search of the records of the Dis-

- triet Dirgetor of Infernal. Revenue, Nashville, Tennessee,

‘for all wage ring: tax stamps sued in the State of Tennes-

see for the period July 1, 1959 to April 22, 1960 and found”

‘no record of regisjration or issuance of wagering oeeupa-

‘tional tax stamp to Billy Gilbera Nicholson or any person

--using the address of 2806 Westwood Avenue, Nashville,

Tonnessee, os Rae oe

“James K. Suri,

Special Age nt,

: . , -Intellige nee Division,

Nashville District Office.

Atlanta Regione ~ *s

Sworn to before me, and sulise ‘vibed 3 in’ my presence on

April 2 22, 1960),

$ 7 - e

United States Commissioner.

Wersiawn Ave

wesrTw eco Ave. ak

Watcner

Doo

’ Ss

;

E«—

{ ; i i

‘ , ‘s is

<a * X eo .

4 . e 3 o

“ Usirep Srires. or AMEpica, |. > ze

District of Tennessee, Ks 5

‘Before Pi W pasts .GTON Moonk, U aited ‘States Commis-

. sioner, for-the “Middle Judic ‘ial District of Pe THeSSeE, |

The undersigned. being. duly” sworn deposed sind SUVS ,

that he has. personal. knowledge that telephone Aummbers

‘TRemont 9- 0401, _TRemeont 940402, aiid TRe mont. O43 in

Jefferson - County, Alahama, are listed’ vin’ the name of

Superior Sports Servite, Incorporated, M. DD. Dodson,’

President, Route No. 13,. Box No. 778. Birmingham, Ala. -

bama: that M. D. Dodson does reside at the address known’

as Route No, 13, Box No.,778, Birmingham, Alabatua, this.

icing the. third house west of the (sahil viver on the

north side of Old Looney Mill road. '

The undersig med further ‘states “that he hies persconah

knowledge that Ml DD. Dodson is a known gambler and’

bookmaker and that’ he has heen arrested by hoth- local

and federal atithorities for his bookinakiare ativities.

A Franens C. ¢ page o.

7 Spec ial Agent, I 1h

pee CORE: lutelliqence Divi ixion, 2h

; internal Rercwne Services Ly

eS a

Subscribed me sword to- atete: me ‘this 22nd. day of

April, 1960, at Ni ashviltie, Tennéssee, ,

J. Wasnixdrox Moone, te i

United States Commissioner.

‘ ad

. F -

; Unirep States Distuict Cover ror THE “Mivorie Suites

* Disraict oF TENNESSEE

Commissioner’s Docket No. 40

tee, Segreh Warrant —

ee... Usirep States or, Amegicay

oe ;

. ; 9 _* ‘ 4

Premises Kyown as 2806 Westwoop Ave., NASHVILLE,

Le ae TEN SEsste 4 Caer

‘ + ° . , . /j

; Sranci- Ww AKKAST ea Y /

9 (Fite Jun. 29, 1960)”

To Jy ngs K, Smith of any. shor spevial agent: of: the ln-

telligence Division, Interna! Revenue. Service,

Affidavit having been- made ‘before me by James K.-

Smith and Francis ‘C.. Smith, Special Agents of the Intelli-

gence. Divisign, Internal Revenue Service that they have

reason; to believe’ that onthe premises known as 2806

Westwood Avenue, Nashville, Tennessee, further described

as being the fourth hpus? on the north side’ of Westwood

Avenue and being west from the intersection of W ext wood

* Avenue and Natchez Trage as’ shown in attached sketch

in the Middle Judicial District wf Tennessee there is now.

being concealed certain property, naufely bookmaking ree-

ords, wagering paraphernalia consisting of bet slips, run-

down shéets, account sheets, recap sheets “and money used

in-or derived rom .a’ bodkmaking operation which are.

being used in violating of Section 4411, 4412 and 7203 of

‘ J here give ailegyd grounds for séarch and seizure es

- the Internal Revenue Code of 1954 and as I am sayin

~ that there ts probable cause fo believe, that the property

sO described is being concealed on the premises above

described and. that the foregoing grounds for application

"for issuance of the search warrant exist. — «

You are hereby commanded to*search forthwith the

place naiped for the property specified, serving this war.

‘Fant and’ making the starch in’the daytime and if the

property be found there to seize it, leaving ‘y ‘copy of this

warrant and a receipt for the property taken, aml prepare’

‘a written inventory of the property seized and return this

‘ warrant and bring the property: before me within ‘tes n davs

‘of this date, as réquired by law.

Dated this 25th day of April, 1960,

“J. Wastixetos Moone.

a Late 8. C OMMISSIONET,

ont” ep Return,

I received thie attached search warrant April 27, 1M),

and have exéeuted it as follows: + ,

On April 27, 1960, at 1:00 o'clock P. M., 1 searchfed the

_ premises deseribed in the warrant ‘aml J left a copy of the

warrant with Billy*Nicholson togethpr with a receipt for

name of person searched or owner or “at the piluee of search”

tne items seized. ‘. 4 Se

~ The foilowing is an inventory of property taken pursuant

to the warrant < nN

1 Locked Safe Cabinet.” ee | -

1 Large Blackboard containing inforstation . relative td’

baseball events.

_* $6498.00 j int currency

Miscellaneons wagering paraphernalia (6 waper sacks)

and 1 work sheet pad. te , |

This inventory was mace in the presence of: ‘ Srecial

-Ametie Eugene Brown, Jolin Mask. HAward Kew ne anil.

“Billy Nicholson.

I swear that this huventory is a ee apd detailed accoutit

of all the property: taken by me on the warrant.

; + ff aa wt ct Jor M. Ww TLSOrN,

Subscribed and sworn to and. returned before me Ahi<

sagt ae of April, LO). | J. Wasnixctox Moone,

7 7 e “ .” peter p

United States ¢ COMMISSION:

. ‘ ~ sd -“

‘

’o ‘ 5 . *-

. been No convictions of the defendar

‘e

APPENDIX. gE

3 The ( ong All rieht. 1 helinge y you said you had a motion

in this case. | a;

Mr. Gilbert: “Tt ie ( sue le ase, | think we. lege one stipu-

lation in regard to the affidayit in this cause. \- I stated

to Your Honor, we are- cong to hear it caver affidavits

and no proof; and here is wv stip ‘ition in order tO correct

or aiplity one matter that is in the affidavit. | -

» 2 .

"TL Believe, if Penk Honor please, ‘that. there is a statement

in this affidavit that, the defendant, Billy Nicholson, is a

known gambler and bookinaker.in, the > Nashville area (read-

ing). ‘and has been arrested . hy city and federal, law en

forcement officers in connection with gambling aiid hook.

making activities, When arrested hy the Federal officers,

Nicliolson was found to. be conducting a bookmaking oper,

ation from the address: of 28006" W ‘estavood Avenue, ia is :

ville, Fer Inessee, ow . :

Our stipulation as [| understand it (Mr. Cole can correst

me on thts if T ant in error) is that this raid mentioned in

the affid: ayit was made in 1950, and there was-a no trite bill.

Jae regard to the Allegation that he had been arrested hy”

‘city and ea ve enforcement officers, he had been ar-

resttd im 1051, ' prior thereto by the C ity of Nashville

but ng sonciction and, according te the. records, there had

oe Cus ‘a bookmaker at

the fime that this r aid’ was made j

The Court: There had been sio convictions?

. ; a ae ‘

Mr Gilbert: No convictions; no, sir.

IsAhat correct? j Ae orate

Mru-€ le. That's orreet.” "Tat ‘ 7 Ay.

yi 4 , Tr. pp. 5-6,

QQ. Weall know, Mr. Smith, that you have been here

with the Preasury Depantiient fo ‘sometime and that you”

have made nimerous surveilkaie@estand raids and so fort

‘hert Nicholson has within the period of ‘the last five years

4 :

home? |

Now, what surve ‘ilance did vou make of Billy Nicholson’ s

A: The only sutucillanee - we made of his heme’ was to

defermine whether or not Billy Nicholson was still residing

there, and. we did s SEC ini Sitting out on the sun porch on a.

few oasions.

F Lag “Pre p.

&. “Well, ee on you: answers, T will just flat out ask

you if you have any information, either by word of mouth

from somebody else Or any written record: that Billy Gil.

accepted a wage r?

A. All the-- Any records that he might have were destr8v “od

» by-him out there i in that fire, se as to that, [don’t ha® e any

we did not oot any out.there, No, sir”?

Crane fe eS

. .

PO ee ape MRA gt

Td see eae voing in! Land out and. eae

sacks and so forth, charae teristic of a numbers oper- .

ation or ax Gookmaking operation, and‘ that’ these events

would happen at a certain ord particular era spveial time,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.