Charles F. Leahy v. United States

272 F.2d 487 Charles F. LEAHY, Appellant, v. UNITED STATES of America, Appellee. No. 16287. United States Court of Appeals Ninth Circuit. November 16, 1959. Rehearing Denied January 25, 1960. Arthur D. Klang, Clark A. Barrett, San Francisco, Cal., for appellant. Lynn J. Gillard, U. S. Atty., John Kaplan, John H. Riordan, Jr., San Francisco, Cal., for appellee. Before CHAMBERS, ORR and POPE, Circuit Judges. ORR, Circuit Judge. 1 Appellant was convicted on two counts of an indictment charging him with (1) evasion of an occupational tax due on wagering activities and (2) conspiracy to evade such payment. Incident to an arrest of appellant, the arresting officers seized and took possession of certain papers, etc. Thereafter and before trial, appellant moved to suppress the seized articles. A hearing was held and the motion denied. The cause came on for trial and the seized articles were introduced into evidence over the objection of appellant. Subsequent to verdict a motion for a new trial was made in which the failure to suppress and the overruling of the objection to the introduction of the evidence was stressed. The trial judge, who did not hear the motion to suppress, dismissed…

Appellant was convicted on two counts of an indictment charging him with (1) evasion of an occupational tax due on wagering activities and (2) conspiracy to evade such payment. Incident to an arrest of appellant, the arresting officers seized and took possession of certain papers, etc. Thereafter and before trial, appellant moved to suppress the seized articles. A hearing was held and the motion denied. The cause came on for trial and the seized articles were introduced into evidence over the objection of appellant. Subsequent to verdict a motion for a new trial was made in which the failure to suppress and the overruling of the objection to the introduction of the evidence was stressed. The trial judge, who did not hear the motion to suppress, dismissed count one of the indictment because of its belief that the case of Miller v. United States, 1958, 357 U.S. 301 , 78 S.Ct. 1190 , 2 L.Ed.2d 1332 , handed down by the Supreme Court of the United States subsequent to the denial of the motion to suppress and the overruling of the objection to the introduction of the evidence, required it. The trial court refused to dismiss count two, giving as its reason that notwithstanding its…

(concurring).

I agree that the absence of a breaking in by force serves to distinguish this case from Miller v. United States, 357 U.S. 301 , 78 S.Ct. 1190 , 2 L.Ed.2d 1332 . My search has failed to turn up any case equating a ruse or fraud with force.

But I think the evidence here in question was properly received for another reason. The arrest here followed other arrests and a search pursuant to a search warrant at another betting location. There the occupants had warning of what was up as the agents first announced they were federal officers and then broke the door with a sledge hammer. By the time they got in the room was full of smoke from the betting sheets and papers which had been set on fire. In my view, in a ease of this kind, we can take judicial notice that when an attempt is made by officers to enter a betting parlor, there will be an attempt to destroy evidence if the operators have warning. For this reason we have here the exceptional case suggested or referred to in Miller v. United States, supra, ( 357 U.S. at page 309 , 78 S.Ct. at page 1195 ), 1 United States v. Jeffers, 342 U.S. 48, 52 , 72 S.Ct. 93, 95 , 96 L.Ed. 59, 2 and Johnson v. United States, 333 U.S.…