224 F. 642 | S.D.N.Y. | 1915
(after stating the facts as above).
The question remains whether this court, having an unconditional possession, should refuse to assist a criminal prosecution. Strictly speaking, perhaps it is not necessary to say what rights Mandel might have got if he had refused to allow the superintendent of banks to take possession, except on condition that the books should not be used against him, though Matter of Harris, supra, seems to decide it. If Mandel had insisted upon the protection of an order such as Harris got, perhaps he might have got it; perhaps not. In fact, he made no such condition, but surrendered the books and has not suggested any limitation in their use for eight months. The privilege must always be claimed, or it is lost, call it by waiver or by failure of conditions precedent, and any right, if he had it, he must have asserted at the outset. As to the propriety of allowing any public authority to use the books, I have considered that question and decided it in Re Tracy (D. C.) 177 Fed. 532.
. Weeks v. U. S.,. 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, does not touch the case, because there the original acquisition of the property was illegal, and the accused attempted to get it back before trial, as he had the right to do. If Mandel were convicted by this evidence, and upon appeal it were decided that he was entitled on this motion to have had the books returned to the receiver’s custody, then the case would be pertinent. It has no bearing upon whether the books should go back to the receiver, which is the question here.
Motion denied.