The opinion of the court was delivered by: YOUNGDAHL
Defendants have been indicted for violations of the District of Columbia Code provisions
prohibiting gambling and for violation of the United States Code provision
requiring the payment of a tax as a prerequisite to engaging in the business of accepting wagers.
Two motions have been filed. Defendant Jackson seeks the dismissal of counts one through seven of the indictment, or, in the alternative, the striking of counts two through seven. Defendant Virginia Johnson seeks the suppression of evidence seized at 1403 F Street N.E., D.C.
Count one of the indictment reads:
'Continuously during the period from about March 10, 1958 to about May 19, 1958, within the District of Columbia, Oscar L. Long, Virginia Johnson, Joan C. Contee, Clinton Johnson and Charles E. Jackson were concerned as owners, agents and clerks, and in other ways, in managing, carrying on and promoting a lottery known as the numbers game.'
Counts two through seven each charge that Charles E. Jackson sold Milton G. Johnson a chance in a lottery; only the date differs in each of these six counts.
Defendant Jackson asserts that the counts are duplicitous as to him since they all rest upon one statutory provision, 22 D.C.Code 1501, for their validity.
In Blockburger v. United States, 1932, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, the Court held that two sales of narcotics, in violation of the Harrison Narcotic Act, 26 U.S.C. § 4701 et seq. constituted two separate violations authorizing two consecutive sentences. This was so even though there was no substantial interval of time between the two sales
and even though the sales were made to the same purchaser. It should be noted that with reference to these two sales of narcotics, only one statutory provision was involved. Thus one of the questions presented in Blockburger -- Are separate sales separate violations of a single statutory provision? -- is the same question presented here. In Blockburger, the Court held that there were separate violations. Similarly, this Court holds that six sales of lottery tickets are six violations of § 22-1501. While Blockburger was decided twenty-seven years ago, its authority has not been impaired. Gore v. United States, 1958, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405. United States v. Universal C.I.T. Credit Corp., 1952, 344 U.S. 218, 73 S. Ct. 227, 231, 97 L. Ed. 260 is inapposite since the Court was there concerned with a non-penal regulatory statute which was construed as punishing 'a course of conduct'.
A question arises, however, concerning count one of the indictment. Because of the broad and general language in which it is cast, count one charges, in effect, that Jackson (among others) violated § 22-1501. The question, therefore, is whether Jackson can be found guilty under count one if he is found to have committed the acts giving rise to counts two through seven. This cannot be determined now. Since § 22-1501 is capable of violation in ways other than the sale of a chance in a lottery, the Court cannot now determine from the bare allegations of the indictment whethed count one is simply a summary restatement of counts two through seven. This determination must await the trial on the facts; if the Government proves Jackson violated § 22-1501 by proving only the six sales that gave rise to counts two through seven, then Jackson cannot be found guilty of count one. In any event, counts two through seven must stand.
Defendant Virginia Johnson's motion seeks the suppression of evidence seized by the Government from premises at 1403 F Street, N.E. She asserts that at the time of the seizure she was lawfully in possession of the premises and that the search warrant issued on May 19, 1958 for a search of these premises was invalid in that it did not issue upon probable cause.
Having received a complaint that numbers were being written in 613 2nd Street, N.E. by one Charles Jackson and that one Desso Cox, living at 613 3d Street, N.E., was picking them up, the police launched an investigation on March 10, 1958. This investigation took place over a ten-week period, and upon its completion the investigating officers swore out an affidavit. Based on this highly detailed, five-page document, the U.S. Commissioner issued the search warrant in question.
The affidavit first makes mention of the premises here involved, 1403 F Street, N.E., in its description of the police officers' observations of April 24th. However, the observations prior to that date are important and will be discussed here since they serve to tie the individuals, later seen entering 1403 F Street, N.E., to the gambling operations taking place at 613 2nd Street, N.E.
The particular time of day at which each of the observations occurred will not be set forth in the interest of clarity. Suffice it to note that they all took place between the hours of 12:00 noon and 3:30 P.M.; these three and one-half hours being known to be the 'rush-hour' for numbers operators.
Officer Johnson played a number with defendant Jackson in 613 2nd Street, N.E. on eleven different occasions beginning on March 10, 1958. One other time the officer placed a bet at 613 2nd Street, N.E. with an unidentified man who told the officer he had been sent by Jackson to take bets.
On nine different occasions between March 10 and April 7, 1958, the officers observed Jackson and a Jane Doe #1 enter the premises at 613 3d Street, N.E. with 'bulging pockets',