171 F. Supp. 71 | D.D.C. | 1959
On December 8, 1958, an indictment was returned by the grand jury, charging in part:
“Continuously during the period from about September 18, 1958 to about October 1, 1958, within the District of Columbia, Morris A. Lewis, Robert H. Ellis, Charles DeWitt Davis, Charles E. Berry, Theodore F. Hawkins, Beverly Broadus and Joseph Henson knowingly were concerned as owners, agents and clerks, and in other ways, in managing, carrying on and promoting a lottery known as the numbers game.
“Second Count:
“On or about October 1, 1958, within the District of Columbia, Morris A. Lewis, Robert H. Ellis, Charles DeWitt Davis, Charles E. Berry and Theodore F. Hawkins knowingly had in their possession and under their control notations, records, receipts, tickets, certificates, bills, slips, tokens, papers and writings, current and not current, used and to be used in a lottery known as the numbers game. * * * ”
All four convicted defendants have filed motions for judgment of acquittal n.o.v. or for a new trial.
The evidence at the trial concerning these four defendants showed that between September 18, 1958 and October 1, 1958, officers of the Metropolitan Police Force observed Davis, Berry and Ellis, on several occasions. The observations gave the officers probable cause to believe that these men were engaged in the numbers business and that the house at 4923 Just Street, N. E., was being used in the operation of a lottery in violation of D.C.Code, § 22-1501 and '§ 22-1505. On October 1, 1958, the police obtained a search warrant from the United States Commissioner for 4923 Just Street, N. E. At about 4:55 P.M., four police officers approached the front door of the house and two police officers approached the rear door. One of the four officers knocked several times on the front door, heard voices on the inside in close proximity to the front door, announced that they were the police and had a search warrant for the premises.
The articles found at the house were seized and over defendants’ objections were admitted into evidence at the trial.
With regard to defendant Lewis’ motion, the principal complaint is that the evidence seized at 4923 Just Street, N. E., was the result of an illegal search and seizure. Counsel for Lewis did not re-argue the validity of the execution of the search warrant; this issue was thoroughly explored on the defendants’ motion for suppression of the evidence, which- the Court heard and denied during the trial (in the absence of the jury).
With regard to defendant Davis, the argument seems to be exclusively the method employed by the police in approaching the house. One of the two officers testified at the trial that in approaching the rear of the house, they “hugged the building line”. Counsel for Davis has termed this “commando tactics”, and has criticized it. To just what legal point the criticism is directed is not clear. Police tactics are relevant in a court of law only where there is question of interference with some protected right of the citizen. Certainly the police need not apprise of their coming with brass bands blaring; their tactics are not material on any evidentiary question solely because they happen to be melodramatic.
With reference to defendants Berry and Ellis, reliance is placed on France v. United States, 1897, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595, and Francis v. United States, 1903, 188 U.S. 375, 23 S.Ct. 334, 47 L.Ed. 508. The contention is that Berry and Ellis cannot be found guilty on count one since there is no evidence of their possession of numbers slips and paraphernalia on October 1, 1958 — indeed, they were given judgments of acquittal on count two of the indictment — and the evidence concerning numbers slips in their possession on days prior to October first is merely circumstantial.
While the evidence of possession may have been circumstantial, the evidence of violation of D.C.Code § 22-1501, as charged in count one, was sufficient to go to the jury. It is possible to be found guilty of violating § 22-1501 even though the Government does not prove possession of numbers slips. While possession gives rise to a presumption that the possessor has violated the statute, it does not follow that inability to prove possession precludes the Government from proving the violation by other evidence.
The France and Francis cases are clearly distinguishable. In those cases the statute involved was the Act of March 2,1895, c. 191, 28 Stat. 963, which sought the suppression of lottery traffic through national and interstate commerce. Those cases held that tickets relating to a lottery that already had been run did not fall within the language of the statute.
The verdicts of guilty must stand. Motions denied.
. This announcement was made in as loud a voice as that used by the officer while he was testifying. The officer’s testimonial voice could be heard throughout the courtroom and X find that it was such as to be audible to any person of normal hearing who was standing on the other side of the door or in any of the nearby rooms. And see footnote 4, infra.
. The officers testified they waited between ten seconds and two minutes.
. Defendants objected to the execution of the search warrant. Specifically, they asserted that the police “broke” the front door -without giving “notice of [their] authority and purpose” as required by 18 U.S.C. § 3109 (1952). Even if it is assumed that there was a “breaking” of the front door, it is my opinion that the police complied with § 3109. See the text at footnotes 1 and 2, supra. But there is no validity in the assumption; I accept the testimony of the police officers to the effect that the door was opened for them by defendant Lewis. There was no “breaking” and § 3109, therefore, is inapplicable.
. Even if it is assumed that Lieutenant Eoran entered by breaking the rear door and that his entry was prior to that of the officers at the front door, Eoran’s entry would, nevertheless, have been lawful since he entered pursuant to the search warrant. Notice of authority and purpose, as required by 18 U.S.O. § 3109, having been given by the officers at the front door, the breaking would not have been unlawful. To show that any possible breaking by Eoran must have occurred after the persons inside the house were aware that the police were at the door armed with a search warrant, it is necessary only to point out that Foran heard, “Go out the back door”, while he was on the outside of the house. Under the circumstances, and from the other testimony, it seems apparent that this comment was provoked by the notification given the occupants by the officers at the front door.
. Cf. Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (“But this statutory presumption, does not reduce the offense to one of mere
. The statute prohibited the traffic in interstate commerce of “ * * * any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert or similar enterprise, offering prizes dependent upon lot or chance * * * ” 28 Stat. 963. (For the statute presently covering this offense, see 18 U.S.C. § 1301 [1952]).