Brief for the United States in Opposition — Nicholson v. United States

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on the Supreme Gur of the United States

Ooroesn Term, 1962. °

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No. 254

Binwy Gibteerr NICHOLSON, Et., PETITION ER

‘UNITED STATES OF AMERICA.

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ON PETITIONS rou WITS OF CRRTIORARIT TO THE LNITED

STATES COURT OF APPE ‘Ls FOR THE SINTH CLROTIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

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; OPINION BELOW

-The-opimion of the, court of appeals (Pet. App. A,

: 12-16) is not vet reported.

| JURISDICTION,

The. judgment of the court of Appeals was’ entered

on May 24, 1962. The fime for filing a petition for a

writ of certiorari was extended by Mr. Justice Stew-

art to and including July 18, 1962. .The petition fora

writ of certiorari was filed on July 14, 19620" ~The:

“jurisdiction of this Court | is invoked under 28 U.S.C.

Cree St ; eee :

* QUESTION PRESENTED /

Whether the facts recited in affidavits supporting a’

“warrant for the search of petitioner's hore showed:

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probable cause for believing that he. was conducting a

_hookmaking opfration. in violation | of the federal ©

A wagering tax. si

STATEMENT :

On August 11, 1980, an information was filed in the _

United. States District Court for the Middle District.

of Tennessee charging petitioner, in two counts, with —

willful failitte to register as.a person in the business °

‘of aceepting wagers, as required by 26 U.S.C. 4412,

and with failure to pay the oecupational tax imposed

hy 26 U.S.C, 4411 (R. T3a-74a). On October 18, 1960,

the United States, acting under 26 U.S.C. 7302, filed

a libel in the same court, seeking forfeiture of $7,198

($6,498 found on the person of petitioner and -$700 in

a metal box on the premises searched at the time of

.petitioner’s arrest), alleging that this money was used

- or intended for use in carrying on a wagering business °

without paying applicable taxes (R. 6la-f4a). Peti-

tioner filed a motion to suppress as evidence certain -

paraphernalia seized at the time of the search and his"

arrest (R. l6a-17a).

By agreement of thhe parties, the criminal charge,

the libel and the motion to suppress were tried together

(R. 554-Stia). The jury found petitioner guilty upon

- beth counts: of. the information (R. 18a-19%a). - The

court denied the motion to suppress (R. 19a-20a) and

found in favor-of the government on the libel (R. 67a-

70a). In denying petitioner's motion for a new trial,

the court filed a memorandam opinton discussing fully

' all. questions raised (R. 22n-38a; Pet. App. B 17-23).

_ Petitioner was sentenced to imprisonment for a peried

of six months on the first count of the information and.

to a fine of $1,000 on the second, $500 of which Was Sus-

pended on the condition that he should not violate the

same statutes within a period of three years (R. 20a-

| 22a).. The court of appeals affirmed (R. 4c-8e). *

the sole question presented bythe petition is the

; sufficiency of the affidavits mepeting the warrant for

‘a search of petifioner’s house. The ‘affidavits of James.

~ K. Smith and Francis Q. Smith, both special agents

in the intelligence division of the Internal ‘Revenue

“Service, disclose the followifig facts (R. 5i-9a; Pet.

App. D, 26-82):

(1) Petitioner,: who was known. sommetiinen to use

the name Robert Walker, resided with his mother-in-

law at 2806 Westwood Avenue in Nashville.

, (2) Thete were three telephones at that address,

two (Cypress 5534 and 5535) in the name of “Robe rt

Walker and one in the name of his mother-in-law.

(3) Records of the telephone compayly showed un-

‘usual long-distance activity on petitioner's tele ‘phones s.

Approximately 293 long- distance calls were- charged

te CY-5 9534 and CY- 5535 between January 1, 1960, and

‘April 15, 1960,

(4) Numerous s_long- distance ‘calls f rom raed te et =

phones were made to two known bookmakers* in

Birmingham, Alabama, and Biloxi, a whose

names and telephone numbers were given.

(5) Numerous long distance calls were placed to %

' CY-5534 and CY-5535 during this period frop known

bookmakers and gambiers in Clarkson, Georgia, Phil-

-adelphia, Pennsylvania, New Orleans, Louisiana, and

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Jacksonville, Florida, whose names on telephone,

“munbers were given. :

(6) Such long-distance telephose activity is a .

acteristic of bookmaking operations.

(7) Petitioner is.a known gambler and bookmaker.

One of the affiants had personally participated in .

his arrest af the same address and observed a book-

making operation, In amplification of this alle gation,

it was stipulated, at the request of petitioner, that he

had been artested tw ive for gambling violations, once

‘in’ 1955 and once prior thereto, hut that neither arrest

resulted in prosecution (R. 1b, 41a—42a)..

(8) Investigation disclosed no record of the issu-

“ance of a wagering tax oecupational stamp

this period, either to petitioner or anyone

overing

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Westwood Atenne|nddress. ; ars

am Petitioner's shiggestion that the affidavits were -

insufficient because based on hearsay is wholly with-

out merit. Brinegar v. United States, 338 U.S. 160,

172-173 ; Draper VN. Uuited States, 358 U.S: 307, s11-

£312; and. Jones v. Uijited States, 362 US. 257, 267-

272, have Settled the question, rejecting a contrary

dictum in Grau V. Unite d States, 287 US. 124, 128,

‘Nor is there any rule that hearsay alone is - not

enough. It suffices if there is “a substantial basis for

crediting the hearsay.” Jones: v. United States,

supra, at 272. The information may become trust

worthy after corroboration by inde pendent evidence,

or it. may be inherently reliable heeanse of its source.

No one will question the cal ea of tele ‘Phone -

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aed ‘records. Unlike’ the tip of an-tinknown

infor? er, business records are acceptable on their

face, Seve 28 U.S.C. 1732. Moreover, in this case,

there were other indepe niddent circumstances: corrobo-’

rating the judications provided by the telephone ree-

ords. Petitidner’ Ss reputation as a bodkanaker and

the obse rvgtions, made on his prior arrest at the: same

address were. fot ve ‘lated to the records, hvu if “in

themselves totally | ‘noes,’ these facts. sufie ently, |

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' verified the inferenees derive d fron the telephone rec

ords. Jones y. United states, stpra, at 269-270.

2. Petitioner next argitves that, even accepting thes

‘hearany’ the totality of the” inforniation fecited in thie

affidavits does not meet the stand srd of “probable

cause.’7/* To stibstantiate this, he applies the rule that

. cireumstantial evidence niust exclude every reasonable

hy pothesis consistent with innocence. But, of conrse,

that test, appropriate in determining the suifficie ney

of the evidence on the question of guilt, or innocence,

does not govern here. The standard applicable on the

issuance of a search warrant ig not prook beyond FD

reasonable doubt, but “probable cause” to believe the

‘offense has+ been committed. And, as the nahue im

plies, that criterion invol yes only *“probabilities,\ net

certainties.. Brincgar v, United States, supra, al 175.

Judged nnder the prope r standard, the recitals ot

the affidavits that many long distance calls had ‘been Ne

-made on petitioner’s telephones, to’ ‘dnd from knowf?

gamblers and bookm: rker's,. considered in relation to

the facet that petiticner himself Was a known gambler

~ whose operations some years before had been per-

-sonally Ww itnessed. by one of the affiants, constituted

‘ample ground for belief ‘that rn Wds engaging -

in a wagering business. '

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. *. concrusioN

For the foregoing, reasons, the petition for a writ

of certiorari should be denied.. eee :

fee Se ARCHIBALD Cox, aut

tae : - Solicitor General.

SET aio. ~ Hersert J. Mitten, JR., ?

- Assistant Attorney General.

BEATRICE ROSENBERG, |

--Kirsy. Ww. Patterson,

ayy. . : Attorneys.

Aveavst 1962. . ae eee ,

' Petitioner's. reliance upon United Stafes v. -Lassoff, 147 F.

. Supp: 944 (E.D. Ky.) is not justified. The substance of the

court's holding there was that the aflidavit was insufficient Be-

.cause its allegations were all conclasory, a criticism which can-

not be made of the detailed factual allegations of the affidavits

herein. “More pertinent toothe facts presented by the instant.

énse are United States v. Schwartz, 151 F, Supp, 399 (W.D.

Pa.)and / ‘nited States v. Jacobson, 198 F. Supp. 386 (D.

Conn.).

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