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United States v. Wrieole

decided: June 16, 1967.

UNITED STATES OF AMERICA
v.
SAMUEL WRIEOLE, APPELLANT



McLaughlin, Hastie and Freedman, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

McLAUGHLIN, Circuit Judge.

An information filed against appellant stated that he was engaged in the business of accepting wagers and therefore was liable for tax under Section 4401 of the Internal Revenue Code of 1954 (26 U.S.C. § 4401); that he was required to pay the special occupational tax under 26 U.S.C. § 4411 and failed to do so for the period stated; that he was required to supply registration information specified in Section 4412 of the 1954 Internal Revenue Code (26 U.S.C. § 4412) and failed to do so for the said period. Appellant was convicted, sentence was suspended; he was placed on probation and fined.

On appellant's behalf it is asserted that the trial court erred in denying the defense motion for acquittal made at the end of the Government's case. The defendant failed to preserve his right to question the sufficiency of the evidence by never renewing that motion. United States v. Manos, 340 F.2d 534, 536-537 (3 Cir. 1955) and decisions there cited. In addition to that, our own examination of the record thoroughly satisfies us that there was sufficient evidence in the Government's proofs to justify appellant's conviction here as a principal or banker.

Appellant also argues that his arrest was illegal and that therefore the evidence on his person which he produced at the command of the then arresting officer, New Jersey State trooper Maziekien, was wrongfully obtained.

Appellant was arrested on December 16, 1964 in the course of a combined State and Federal raid of a store called "Mike's Sugar Bowl", Asbury Park, New Jersey. That place had been under surveillance by the Intelligence Division of the Internal Revenue Service since the preceding August. Regarding appellant, one Miraglia who was with him when he was arrested, and Delloiacono, the owner of the store, Special Agent Dubrow, in charge of both the surveillance and the raid, testified at the hearing on motion to suppress the above mentioned evidence, about the Intelligence Division's knowledge of them as follows:

"I knew Sam Wrieole and Russell Miraglia to have a background in wagering activity. The Intelligence Division files indicate these men to be involved in wagering. They also indicated that Miraglia and Wrieole had arrest records involving wagering activity or for wagering. We also had information from a confidential source that they were currently involved in wagering activity, and based upon the surveillance information that I received plus the information transmitted by the undercover agent regarding the wagering activity on the premises, plus our prior investigation of September 1964, we believed that there was a gambling operation going on in those premises in which Miraglia, Wrieole, Delloiacono and others were involved in."

The raiding party had a search warrant for the premises and one of arrest for Delloiacono as owner. State trooper Mazikien, Detctive, Second Class, of Criminal Investigation Section of the New Jersey State Police, was one of the raiding officers. He testified that his troop assignment included investigation of gambling activities. He was later joined at the raid by his commanding officers, Captain Dollar and Major Halley. He was asked " What was the purpose of your accompanying the Federal agents on the raid ?" He answered " My purpose there was to effect any state arrest as the situation may warrant after the raid was in progress. Q. For violations of what ? A. The gambling laws of the State of New Jersey." (Emphasis supplied.)

Respecting his knowledge of appellant and what had been going on at the Sugar Bowl prior to the raid, his following testimony is illuminative:

"Q. Did you know anything of the background of Mr. Wrieole? A. Yes, I did. In either '62 or '63 I was a party to a gambling raid in Long Branch where he was arrested.

Q. On what charge? A. Lottery.

Q. Did you know -- pardon.

Were you advised as to what type of activity was conducted at Mike's Sugar Bowl? A. Yes, it was a Sugar Bowl but a front for gambling activity in that these persons ...


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