BURGER, Circuit Judge.
These eleven cases are before us on appeals from convictions for violations of the District of Columbia lottery laws and conspiracy to violate those laws. All appellants were convicted of operating a lottery, § 22-1501, D.C.Code 1951 and possessing numbers slips, § 22-1502, D.C.Code Supp.1955; five appellants were convicted of having conspired to operate a lottery and sell numbers, 18 U.S.C. § 371 (1952); four were also convicted of permitting the maintenance of premises for gambling, § 22-1505, D.C.Code Supp. 1955.
Appellants’ main contentions are that: (1) items seized from searched premises should not have been admitted into evidence .because the search warrants were issued without adequate probable cause; [39]*39(2) the daytime search warrant for 1628 “O” Street, N. W., was illegally executed in that the return on the warrant indicates it was executed at 6:00 P.M.; (3) the search warrant for 2126 10th Street, N. W., was illegally executed because the officers entered the premises forcibly without the owner’s consent and without giving notice of their authority and purpose; and (4) the five appellants convicted on the conspiracy count should have been acquitted as to that count.
The first two contentions were decided adversely to appellants by the District Court on motions to suppress evidence. The District Court’s opinion, United States v. Bell, D.D.C.1955, 126 F.Supp. 612, carefully considered these two points and we believe reached the correct conclusion.
The third contention is that the search warrant for 2126 10th Street, N. W., was illegally executed because the officer, upon receiving no response to his knocking, forced the door open without first giving notice of his authority or purpose. Appellants rely on the provisions of 18 U.S.C. § 3109 (1952)1 which provides that an officer may “break open” a door if he is refused admission after giving notice of his authority and purpose.
The record discloses that the officer in charge of the police party ordered a subordinate “to break the door open,” that the subordinate pushed the door “and the door flew open.” 2
At this juncture we cannot determine on what basis the trial judge ruled adversely on the motion to suppress the evidence seized after and as a result of the entry here described. We are obliged to look at the record as showing an entry by force which under the statute cannot be made unless the officer first gives “notice of his authority and purpose.” It is not disputed by the officers that as to the actions at 2126 10th Street, they failed to announce that they were police or that they were authorized to enter under a warrant. Having failed by their own admission, to comply with the command of the statute, we must hold the evidence was obtained as a result of the unlawful entry into 2126 10th Street. In Palmer v. King, 1914, 41 App.D.C. 419, 425-426, L.R.A.1916D, 278, this court said:
“ * * * when an officer, in the execution of a writ, finds an outer door or window slightly ajar, but not sufficiently so to admit him, he may open the door or window, provided he does not find it obstructed, but if it is fastened or obstructed so as to require force to overcome the obstruction, he may not use such force, for such an entrance would constitute a breaking.”
While the entry in the Palmer case dealt with civil process and relied on the com[40]*40mon law rather than a statute such as we now have, the rationale of both is substantially the same. Justice Van Orsdel of this court stated the law to be: “He may enter either an open outer door or window, provided it can be accomplished without committing a breach of the peace; he may then, after request and refusal, break open any inner doors belonging to the defendant, in order to take the goods.” 3 (Emphasis added.)
Five premises were raided. The 10th Street house was alleged to be a “money drop”, not a principal place of ..business; and the evidence seized there was utterly insignificant compared with the, masses of material seized at other places. Any analysis of the record shows this to be true. So, even if we regard this evidence obtained at 2126 10th . Street as .inadmissible, there remains the question of how this result affects the rights of the appellants. Elimination of the evidence seized at the 10th Street address leaves the Government’s case unshaken, except with respect to appellant Shay, who was arrested at that address. With regard to the others, when all is said and done (using the language of the Supreme Court in the Kotteakos4 case), we are convinced the error did not influence the jury or at most had but very slight effect. For this reason we affirm as to all appellants except Shay.
Of the fifteen people arrested in these raids only four were arrested at the 10th Street address, but one of these was dismissed, one was found not guilty, and one did not appeal; of those found at the 10th Street address only Shay was convicted and appealed. He was found guilty of operating a lottery and of possessing lottery slips. The slips which he was found guilty of possessing were seized at the 10th Street address. Therefore his conviction should be reversed, and he should be granted a new trial.5
Appellants’ final contention is that they should have been acquitted as to the conspiracy count of the indictment on the ground that “the crime of conspiracy as defined in Title 18, § 371 U.S. Code, is either inapplicable to, merged in or so indistinguishable from [the] lottery statute as to prevent the conviction of appellants on both charges." Appellants argue that the conspiracy charge must involve proof of an element not necessary to proof of the substantive offenses and that there are no differences between the crime of conspiracy and the substantive offenses under the lottery laws.6
If this argument is based on the merger of the conspiracy with the substantive offense, it must be rejected. Whatever validity there may be in the proposition that “where * * * concert of ac[41]*41tion between two or more persons is logically necessary to [a crime’s] completion a charge of conspiracy to commit it will not lie against such persons,” 7 this is not such a case. There is no logical necessity for a plurality of agents in order to violate the lottery laws.
Appellants, however, claim they are not simply making a merger argument but are offering a novel theory. They say that it is impossible to do anything which would constitute a conspiracy to violate the lottery laws without also actually violating those laws; therefore, the lottery laws and the conspiracy statute, when applied in this situation, punish exactly the same conduct, whereas it is necessary that there be an additional element for a conspiracy. This argument cannot be accepted.
Assuming that it would be impossible to violate 18 U.S.C. § 371 without also violating § 22-1501, D.C.Code,8 the converse is not true — § 22-1501, D.C.Code, can be violated without violating 18 U.S.C.
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BURGER, Circuit Judge.
These eleven cases are before us on appeals from convictions for violations of the District of Columbia lottery laws and conspiracy to violate those laws. All appellants were convicted of operating a lottery, § 22-1501, D.C.Code 1951 and possessing numbers slips, § 22-1502, D.C.Code Supp.1955; five appellants were convicted of having conspired to operate a lottery and sell numbers, 18 U.S.C. § 371 (1952); four were also convicted of permitting the maintenance of premises for gambling, § 22-1505, D.C.Code Supp. 1955.
Appellants’ main contentions are that: (1) items seized from searched premises should not have been admitted into evidence .because the search warrants were issued without adequate probable cause; [39]*39(2) the daytime search warrant for 1628 “O” Street, N. W., was illegally executed in that the return on the warrant indicates it was executed at 6:00 P.M.; (3) the search warrant for 2126 10th Street, N. W., was illegally executed because the officers entered the premises forcibly without the owner’s consent and without giving notice of their authority and purpose; and (4) the five appellants convicted on the conspiracy count should have been acquitted as to that count.
The first two contentions were decided adversely to appellants by the District Court on motions to suppress evidence. The District Court’s opinion, United States v. Bell, D.D.C.1955, 126 F.Supp. 612, carefully considered these two points and we believe reached the correct conclusion.
The third contention is that the search warrant for 2126 10th Street, N. W., was illegally executed because the officer, upon receiving no response to his knocking, forced the door open without first giving notice of his authority or purpose. Appellants rely on the provisions of 18 U.S.C. § 3109 (1952)1 which provides that an officer may “break open” a door if he is refused admission after giving notice of his authority and purpose.
The record discloses that the officer in charge of the police party ordered a subordinate “to break the door open,” that the subordinate pushed the door “and the door flew open.” 2
At this juncture we cannot determine on what basis the trial judge ruled adversely on the motion to suppress the evidence seized after and as a result of the entry here described. We are obliged to look at the record as showing an entry by force which under the statute cannot be made unless the officer first gives “notice of his authority and purpose.” It is not disputed by the officers that as to the actions at 2126 10th Street, they failed to announce that they were police or that they were authorized to enter under a warrant. Having failed by their own admission, to comply with the command of the statute, we must hold the evidence was obtained as a result of the unlawful entry into 2126 10th Street. In Palmer v. King, 1914, 41 App.D.C. 419, 425-426, L.R.A.1916D, 278, this court said:
“ * * * when an officer, in the execution of a writ, finds an outer door or window slightly ajar, but not sufficiently so to admit him, he may open the door or window, provided he does not find it obstructed, but if it is fastened or obstructed so as to require force to overcome the obstruction, he may not use such force, for such an entrance would constitute a breaking.”
While the entry in the Palmer case dealt with civil process and relied on the com[40]*40mon law rather than a statute such as we now have, the rationale of both is substantially the same. Justice Van Orsdel of this court stated the law to be: “He may enter either an open outer door or window, provided it can be accomplished without committing a breach of the peace; he may then, after request and refusal, break open any inner doors belonging to the defendant, in order to take the goods.” 3 (Emphasis added.)
Five premises were raided. The 10th Street house was alleged to be a “money drop”, not a principal place of ..business; and the evidence seized there was utterly insignificant compared with the, masses of material seized at other places. Any analysis of the record shows this to be true. So, even if we regard this evidence obtained at 2126 10th . Street as .inadmissible, there remains the question of how this result affects the rights of the appellants. Elimination of the evidence seized at the 10th Street address leaves the Government’s case unshaken, except with respect to appellant Shay, who was arrested at that address. With regard to the others, when all is said and done (using the language of the Supreme Court in the Kotteakos4 case), we are convinced the error did not influence the jury or at most had but very slight effect. For this reason we affirm as to all appellants except Shay.
Of the fifteen people arrested in these raids only four were arrested at the 10th Street address, but one of these was dismissed, one was found not guilty, and one did not appeal; of those found at the 10th Street address only Shay was convicted and appealed. He was found guilty of operating a lottery and of possessing lottery slips. The slips which he was found guilty of possessing were seized at the 10th Street address. Therefore his conviction should be reversed, and he should be granted a new trial.5
Appellants’ final contention is that they should have been acquitted as to the conspiracy count of the indictment on the ground that “the crime of conspiracy as defined in Title 18, § 371 U.S. Code, is either inapplicable to, merged in or so indistinguishable from [the] lottery statute as to prevent the conviction of appellants on both charges." Appellants argue that the conspiracy charge must involve proof of an element not necessary to proof of the substantive offenses and that there are no differences between the crime of conspiracy and the substantive offenses under the lottery laws.6
If this argument is based on the merger of the conspiracy with the substantive offense, it must be rejected. Whatever validity there may be in the proposition that “where * * * concert of ac[41]*41tion between two or more persons is logically necessary to [a crime’s] completion a charge of conspiracy to commit it will not lie against such persons,” 7 this is not such a case. There is no logical necessity for a plurality of agents in order to violate the lottery laws.
Appellants, however, claim they are not simply making a merger argument but are offering a novel theory. They say that it is impossible to do anything which would constitute a conspiracy to violate the lottery laws without also actually violating those laws; therefore, the lottery laws and the conspiracy statute, when applied in this situation, punish exactly the same conduct, whereas it is necessary that there be an additional element for a conspiracy. This argument cannot be accepted.
Assuming that it would be impossible to violate 18 U.S.C. § 371 without also violating § 22-1501, D.C.Code,8 the converse is not true — § 22-1501, D.C.Code, can be violated without violating 18 U.S.C. § 371, and the two statutes do not punish precisely the same offense. The additional element needed for the conspiracy is present, i. e., the concerted and associated effort of two or more persons to violate the lottery laws. This case is in fact an excellent example of a situation where the confederation of law violators can be far more dangerous than the single violator. The evidence showed there were 285 number writers who were not apprehended; the five dwellings involved were used as counting houses, places to deposit money, sell numbers and keep “rundown” tapes. Thus, the appellants concentrated records and equipment at various places in order to manage their extensive criminal enterprise with the least risk of detection. The conspiracy statute was designed to punish just such concerted action which makes crime “easier to perpetrate and harder to detect.” Lisansky v. United States, 4 Cir., 1929, 31 F.2d 846, 849. The Supreme Court has said: “ * * * For two or more to
confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.” United States v. Rabinowich, 1915, 238 U.S. 78, 88, 35 S.Ct. 682, 685, 59 L.Ed. 1211.
For the reasons stated the judgment as to appellant Shay (No. 12,868) is reversed and remanded for a new trial not inconsistent with this opinion; judgments as to each appellant other than Shay are affirmed.
No. 12868 reversed.
Nos. 12861-7, 12869-71 affirmed.