Hamilton v. United States

429 F.2d 427

• Court: Court of Appeals for the Second Circuit
• Decided: August 28, 1970
• Docket: 34574
• Status: Published

Opinion

429 F.2d 427

70-2 USTC P 15,957

Dennis HAMILTON, Plaintiff-Appellant,
v.
UNITED STATES of America, Edward J. Fitzgerald, Jr.,
District Director of Internal Revenue for the District of
Manhattan, and Randolph W. Thrower, Commissioner of Internal
Revenue of the United States of America, Defendants-Appellees.

No. 755, Docket 34574.

United States Court of Appeals, Second Circuit.

Argued May 5, 1970.
Decided Aug. 28, 1970.

Appeal from orders denying motion for preliminary injunction and dismissing the complaint.

Before LUMBARD, Chief Judge, WATERMAN, Circuit Judge, and JAMESON, District Judge.1

Godfrey H. Murrain, New York City (Stephen L. Fine, Lubell, Lubell, Fine & Schaap, New York City, on the brief), for plaintiff-appellant.

Brian J. Gallagher, Asst. U.S. Atty. (Whitney North Seymour, Jr., U.S. Atty. for Southern District of New York, and T. Gorman Reilly, Asst. U.S. Atty., on the brief), for defendants-appellees.

PER CURIAM:

Hamilton was convicted of gambling charges after arrests on July 22, 1957; September 16, 1959; November 10, 1959; November 6, 1961; and finally on May 21, 1965. He sought to enjoin the collection of a deficiency assessment based on an estimate of his income from July 1, 1961 through May 21, 1965, on the basis of three days receipts during May 1965, evidence of which had been seized during the execution of search warrants for three separate places of business operated by Hamilton in Manhattan and the Bronx. We affirm for the reasons stated in Judge Mansfield's opinion, 309 F.Supp. 468 (S.D.N.Y.1969) which, among other things, pointed out that the facts differ in important respects from those which we consider dispositive in Pizzarello v. United States, 408 F.2d 579 (1969), cert. den. 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1970).

1 Sitting by designation