Luther F. Grant and Sirrka v. Grant v. United States

CLARK, Before MOORE Judges. FRIENDLY, Circuit FRIENDLY, Judge. wife Sirrka F. and his Luther Grant practicing physicians V. are Grant applied Liberty, York. on Luther New joint Court their District behalf York, for Northern of New District pursuant 41(e), 18 to Fed.R.Crim.Proc. suppressing U.S.C., an as evi- papers that he had records and dence agents the Internal available alleged that Revenue He Service. had been obtained in violation records Amendments and Fourth Fifth attorney States grand jury present to infor- about to relating petitioners’ tax lia- mation bility from derived them. Judge Foley, Upon application, Albany, signed parte sitting ex February 26, 1960, requiring order dated attorney to show cause the United States day judge’s next motion scheduled 21, 1960, why petition- Albany,

ers the relief should sought. stayed the United attorney and other all representatives of the United States submitting any evidence or infor- “from taking Jury mation any a Grand further rela- other petitioners captioned the above appli- pending the determination of this * * * ”. At the same time cation signed order, judge parte, also ex granting petitioners under Fed.R. leave 26(a), U.S.C., to serve no- Civ.Proe. taking depositions tice four agents prior expiration revenue J67 days However, commencement under 28 after the U.S.C. § language ground of February “that their the action on testimony contained restraint, hear- use at the must consider is desired and we ing suppress petitioners’ ille- whether the order March 8 is inter- * gal locutory ,* *, “refusing it is and to evidence order dissolve modify injunctions” testimony be taken essential that their and therefore hearing.” prior pealable 1292(a)(1). to Pursuant to within § such 28 U.S.C. petitioners notice leave served such governed appealability If depositions on March taken would be by 1292(a)(1), 28 U.S.C. we would be § 8, commanding subpoena a 1960 and a required to whether determine the Feb agent special bring copies man- of the to ruary temporary 26 order was restrain a uals and to revenue instruction ing preliminary order a documents, special agents, and “all restraining For “In a civil qua restraining order action a papers, books, records, memoranda, re- non-appealable,” order ports, objects maintained or and diaries Moore, Practice, 65.07, j[ 7 agents, “copies and obtained” two (2d 1955); 1649 ed. Sehainmann v. papers extracts of books and Brainard, Cir., 11, 1925, F.2d 9 8 where them as examinations or a result of preliminary injunction as a is. How vestigations” relating affairs to tax ever, put “the label on the order petitioners. decisive; trial court is not instead the Judge Syracuse Foley When arrived in courts look factors the dura to such as 1, 1960, on March trial commence a order, tion of whether issued was term, an assistant United States attor- hearing, type after notice and and the ney asked him to vacate the order of Feb- obtaining showing made in the order.” ruary judge 26. The declined to do this Holtzoff, Barron 3 & Federal Practice signed supported by but order, affi- 1440, (Wright Procedure, at 509 § attorney davits of the United States 1958). aptly add, “Ap ed. The authors agents, peti- two requiring revenue easy plication is not of these tests “why tioners to on show cause March 7 pro 65(b) fathom.” Fed.R.Civ.Proc. dissolving an order should not made vides that injunction vacating the order to without notice “shall ex granted by cause show this Court on the pire by time its terms such after within day 26th February 1960.” Petitioners entry, days, not to exceed as the court answering submitted affidavits on the fixes, unless within time so fixed the day. considering return After the affi- order, good shown, is extended cause ” counsel, hearing Judge Foley, davits and * * * like Sims v. . 8, 1960, on March made a Memorandum- Greene, 512, Cir., 1947, held Order, Decision F.Supp. 418, re- originally an order issued on De fusing stay (although to dissolve the 2,1946, on December 20 cember extended modifying permit it to the institution 14, 1947, objection January until without complaint before United States thereafter continued time Commissioner under 6531 of the Inter- 3, during February until which time 1954, nal Revenue Code of 26 U.S.C. § held, long evidentiary was time a limitations) to toll the statute of temporary restrain ceased to be reserving vacating decision as to ing preliminary and had become a original order to show cause until injunction subject under what hearing. From this the United 1292(a)(1). On the U.S.C. now 28 § appeals'. hand, Steel Connellv. Dulien Prod other ucts, Inc., question, We meet at the outset not denied, 1958, parties,

discussed whether the or- certiorari appealable. Manifestly held der is L.Ed.2d that the order S.Ct. final; appealable “temporary it is not labelled a was hence suppress property for use evi- and to because to be one did cease order” anything on various dence so obtained” a motion on pending decision restrained grounds specified. injunction was It directs which therein for a judge thence, days see “The shall receive heard 28 scheduled necessary issue the decision (1958). And of fact Harv.L.Rev. prac- similarly motion.” The rule embodies a decided Third respect has long in tice antedated it but whose remain jurisdictional character, the tem- at least in those application for effect until heard, precedes when the cases where the crim- the motion porary expira- prior inal relates, to the to which the evidence was taken Pennsylvania days. Motor has We been little discussed. 20 of Philadelphia in have said “was Port Ass’n, 1960, that such motion Ass’n v. of a Truck complaint initiating 276 F.2d effect ac- Terminal a a civil Marine Cir., States, tion,” Lapides period of re- minimum 2 Here v. United 931. the only 1954, days, 253, 254; more than v. United was 24 four Russo straint period States, by 65(b), 285, permitted 287, a 2 241 certio- the 20 by denied, might 1957, 816, accepted consent rari 355 S.Ct. have been U.S. 78 18, 33, express the rule or 2 L.Ed.2d and in sense the terms of it is the under so mainly undoubtedly with which have been shortened the Court there would so; concerned, namely, requested independence from do had the court been proceeding later criminal and the the con- the order was issued without notice appealability judge sequent hearing; and not made the the final rights therein under 28 1291. How- preliminary of the determination U.S.C. § jurisdictional ever, grants parties required a 28 of in for issuance of temporary in U.S.C. 1331-1358 will be §§ other searched On any by per- for hand, vain rubric under which such a as demonstrated the order falls, any depositions, motion in mitting petitioners the absence of alle- take gation jurisdictional hearing scheduled for March 21 was amount the evidently bring hearing, 1331, it under Cen- intended to be the final see § Garrity, may stay tracchio v. so that performed said to have 382, 385, denied, 1952, certiorari an traditional office 866, 108, injunction pendente lite, U.S. preserve S.Ct. 672. “to L.Ed. exposition quo The classical pending nature status final determination Judge Hough’s hearing.” a such motion is state- the action after full in Maresca, ment United States v. Moore, Practice, 65.04, D.C. at 1625 T S.D.N.Y.1920, 713, 1955). 266 F. (2d 717: ed. resolving “Whenever an difficulty officer court these con- possession has in suggests his flicting or under his considerations that we (by parity papers, control asking right books or or may question not be reasoning) ought one, other articles in that namely, more we examine basic interest, (1) which court has 1292(a) official whether 28 U.S.C. § any person (whether and of stays which applies at all to party pending litigation to a not) summary illegally suppress unlawfully requires deprived, This has obtained evidence. in turn been analysis person may petition of motion of the nature to that the court for end This made before restitution. I take to be an ele- pending. mentary principle, depending upon power the inherent disciplinary 41(e) provides Fed.R.Crim.Proc. any court of record. aggrieved person “A an unlawful “Attorneys seizure are search move district officers court, prop- attorney the United for district court taking escape erty does office was seized the return of the unlaw have been papers claimed disci- professional species of this determine can fully the court taken until this pline. power entertain Thus “grant them, right is an his ing, continuing, to use depends fact on the refusing or modifying, attor- proceeded an party refusing to dis injunctions, dissolving known ney, he is official not that modify injunctions” within attorney. It solve United States as the 1292(a)(1), if the right even U.S.C. to move § that the true further 20-day permitted beyond runs depend exist- all indictment; does orders might ence of as 65(b) we should Fed.R.Civ.Proc. made, prosecution pending.” no fully applicable.1 Rule is sume that the Importing v.Co. See also Go-Bart 1292(a)(1) from 7 Section stems § 355, 51 S.Ct. States, 282 U.S. Act, c. Evarts 26 Stat. States, 374; Foley 153,75 v. United L.Ed. re providing, way exception denied, 1, 3, certiorari where, upon finality, quirement of “That 796, L.Ed. S.Ct. court, equity district in a injunc court, existing or in circuit 41(e) or the by When under Rule be or motions continued shall independent of practice preceding interlocutory decree, it a cause are order or in proceeding, enter- a criminal the courts decree in which an a final from denying appeals tain from may provisions final orders of be taken under the United papers, appeals, v. the return of Perlman of the circuit act to court 417, 1918, States, 7, 247 U.S. 38 S.Ct. inter an locutory be taken from such Essgee 950; granting United 62 L.Ed. v. con Co. order or decree 514, 1923, States, 151, tinuing 262 S.Ct. U.S. 43 such the circuit to 917; denying appeals”; v. United 67 L.Ed. States, supra, Go-Bart Co. such court orders of return, granting injunctions 1895, c. such in were first added 465, McDowell,1921, 96, ap Burdeau v. U.S. 256 it 28 Stat. 666. The section as contrast, 574, peared 1911, 41 S.Ct. L.Ed. In 65 1048. of the Judicial § Code pref 129, 1134, indict- when the motion is made after to be 36 Stat. continued ment, Cogen denial, upon neither its v. United hear aced ing words a “Where 118, 1929, 221, court,” States, equity 278 S.Ct. U.S. 49 in a district 275, grant, v. 73 L.Ed. nor its Carroll equity” in “in omission the words States, 1957, 397, United 77 354 U.S. 13, 1925, February Stat. Act 43 1332, appealable. 1442, S.Ct. 1 L.Ed.2d is 937, not that “was intended to remove sustaining appel- We have found no case r Schoenamsgrube limitation.” v. Ham jurisdiction late in such from burg 454, Line, 1935, American 294 U.S. proceeding a save a final one. 457, 3, 477, 475, fn. L.Ed. 55 S.Ct. 79 order, 989; Contractors, We do not think Inc. v. see Baltimore disciplinary 1955, 6, Bodinger, 176, 180, exercise “the inherent fn. power” court, 249, directing one its S.Ct. 99 233. Whatever 75 L.Ed. seeking using might person own officers to refrain from books the ease when a n applicability proceeding present. 1. The ease for in a is ble like the nature,” However, action is “of a civil Fed.R.Civ. since the Federal Rules 1, “primarily designed since Proc. “Whether an action civil Procedure Civil litigation,” plenary Moore, or criminal nature determined 7 sought 81.06, imposed,” (2d 1955), the sanctions at 7 Practice 4442 ed. If Moore, 81.02, necessarily they Federal Practice at 4431 does not follow that H (2d 1955); literally applied ed. see United States v. Stangland, Cir., 1957, 843, 41(e) under summary are Fed.R.Crim.Proe. which character, and does not come within when even Goodyear these pre-indictment. the exclusions of In Cf. Rule 81. Russo v. Tire & are supra, pages States, N.L.R.B., United v. F.2d at Co. Rubber 287-288, 26(a) applica 450, 451, we held Rule A.L.R. ¡170 alleged holding property have return Our ple- sought appeal- illegally proceeds been is not here seized to be reviewed

nary judges juris- appropriate able action under does that district not mean Lane, statute, v. dictional have unlimited see Goodman discretion government 32; agents present v. Eastus cf. ing pending grand jury Bradshaw, Cir., certiorari evidence to 1045, hearing suppress. Fed.R. denied, 1938, on a motion to 58 S.Ct. U.S. hardly language requires 41(e) evidence 82 L.Ed. apt Crim.Proc. such necessary “any of fact step in a be taken on issue preliminary to describe a follows where, motion.” It special proceeding the decision of the in the course hearings not be evidentiary should “disciplinary powers” exercising its course, only when but set as matter “summarily one what to determine” alleges proved if petition v. facts do, Co. its own should Go-Bart officers grant require page of relief. We supra, States, U.S. United pe find how the hard to see somewhat page 157 the court S.Ct. at test, con since the tition here met this action him, parte, take structs ex guarantees might stitutional are violated pending determination records, taxpayers’ vol grant ability when impair full books the court's Treasury normally untarily turned over relief. Such a examination, stages found are contain would not have the three —tem- government leading to as porary order, .liability, sert Russo v. injunction, and final decree—characteris- Sclafani, States, supra; United States equity”; first tic of “a 408, usually certiorari denied hearing evidentiary 2 265 be the would 918, 1436, generally 1959, L.Ed. S.Ct. 360 U.S. 3 proceeding 79 last and the would 1534; Garrity, supra; 2d Centracchio v. appeal from an be interlocutory an determined before agents was a the special one of the fact that order heard. could be agent (whose presence, petition case itself The Baltimore Contractors allege, develop to ers intent shows an every request for an teaches that leading prosecution) to facts containing order of restraint words irrelevant, Unit has held Turner v. been 1292(a) injunction one for an within § 930, States, Cir., 926, 4 222 F.2d cer ed Phillips, (1). v. does Fleischer So 831, 1955, tiorari denied 350 U.S. denied, 515, 516, certiorari only 65, 742; and 100 L.Ed. S.Ct. 1002, 1139, 3 S.Ct. alleged misrepresentation affirmative as said, deal- L.Ed.2d where we also investigation post to the nature of the ing court, “the with” officers of delivery voluntary of the rec dated nothing injunctive prayers for add relief eviden In those cases where an ords. denying motions orders hearing tiary required, the court automatically ap- render neither of them proceed expeditious should an manner pealable 1292(a)(1).” under 28 U.S.C. § summary character with the consonant Rosenwasser, 9 And United v. recognition remedy and with a of Cir., 1944, 156 A.L.R. safeguard important less no “It suppressing interruption an evi- against inquiry held that order undue grand jury pro restraining the than to dence and United States instituted using delay copies progress from from the trial seized records tect of of any an indictment has been found.” or information derived therefrom in after any kind, States, 1940, v. United which was not of Cobbledick 323, 327, 540, 542, sought L.Ed. appealable was U.S. S.Ct. because it as final expiration filed, possible peri only The information had after the been is, course, highly interlocutory limitations of appealed od of not be an could as injunction although to the exercise the court’s granting relevant of an order Abuses discretion in discretion. or- assuredly of literally was. was dering scope dura- without The warrant.” in the sought special proceed- “to initiate courts this stay tion of a can be corrected ing.” parte Febru- man- It was of issued through ex appeals of issuance ary govern- enjoined Practice, flj 26, 1960 and Moore, damus. Here, (re- submitting any ment 1955). from evidence [4], (2d 54.10 ed. at 87 gardless any relationship requested whatsoever of however, appellant has sought Goldblatt, suppressed) the material relief, such Zamore see pending applica- the determination of 738, the day tion. Since the return date was only motion next continue until the injunc- period issue the minimum of Albany, and the of the court in long days. entry tion was 24 The date settled been doubtless have compliedwith ex- ago after decision could have government if taking substantially. tended this instead order to cause show appeal. this Simultaneously made, a motion was pursuant also notice for without The lack is dismissed for 26(a) pellate jurisdiction. of the Federal Rules Procedure, Civil notice to serve leave taking depositions govern- Judge (dissenting). MOORE, of various agents prior expiration ment regularity This tests days after the of “this commencement taxpayers instituted supporting action.” The affidavit (referred taxpayer”) en- “the parte procedure” ex “civil Attorney join Recites the United States that “this action” is the order to show Jury any submitting ato Grand procedure” cause under the “criminal whatsoever, taking crime Again rule. this motion without notice proceedings, other them. granted. enjoin- effect thus has the ing Jury pro tanto in its time- the Grand 4, 1960, On March the court issued a investigating honored function crime. “why further order to show cause sup- petition reason asserted dissolving order should not be porting request this is in sub- drastic injunction” vacating and the order first although that, stance, “petitioner, either February of 26th. On March the 8th through personally employees or in his court that a should be concluded office, did make to said [In- available held and reserved decision the motion books, of ternal all his Revenue] injunction to dissolve the until the hear- wife, papers and those of records and his ing had been held. of order From including others, among daily log books, government appeals. 8th the March books, statements, check bank bank summary, In an order show cause— books, checks, records, cancelled stock 41(e) of at a motion under section best papers,” and he did so not do books containing criminal a “with- rules— investiga- any purposes “for criminal injunction days more of 24 out notice” tion.” simultaneously its is meta- issuance sought taxpayer a return these morphosized a civil “action” on the into injunction papers an their notice” basis another “without of which therefrom) by (and leads order use an depositions under for leave to take order pursuant 41(e) cause Rule show 26(a) section of the rules is issued. civil Criminal the Federal Rules of Procedure. “aggrieved authority permits of law is this person This Under what Certainly baffling procedure co3iducted? unlawful search and seizure” to legal justification must be found district for the court return some move approving steps suppression taken. property here evi- before as jurisdictional grounds specified Despite that no in the fact dence. Of grants given any only applicable is possibly one sanction Rule the 1331-1358, illegally property specified in §§ that “the was seized U.S.C.A. Garrity, ex- “shall 1 is restricted pointed words in Centracchio v. out self-terminating pire” page 385: the order became at good days, e., i. No March 7th. long accepted that “it has been permissive was cause for the extension un- evidence, obtained where granted. any shown nor was extension and seizure constitutional search had Therefore even if the Amendment, the Fourth violation of any guise tem- effect under the States hands a United porary Feb- between order court attorney, district federal ruary could con- 26th and 7th it grant on a relief entertain only preliminary tinue thereafter as a prior in- petition, .even filed March 8th of The order of dictment, seeking return “refusing necessity had an order to be papers property unconstitutional- injunction: to dissolve” an The fact suppression ly seized the court’s memorandum-decision-order cases)” (Citing same as evidence. “granted” “de- did not use the words States, Lapides United court This in- nied” is not determinative. The junction page at was continued described a somewhat similar regarded refusal and hence must as a as follows: to dissolve it. in ef- “Appellant’s ‘motion’ was purpose The entire initiating a civil complaint fect a rule would be frustrat- seeking suppression evi- action disregarded ed if it were allowed illegally ob- said to have been dence days Ten maximum will. was the restrain the tained and to enjoined during party presenting Attorney from opportunity was to be restrained without grand jury. such years appellate review. Over began The suit thus before courts have become and more re- more govern- by the enjoin notice; luctant rules without against appellant had been in- ment express policy. and statutes stituted, there- his right preliminary from a interlocutory order fore not from junction exception purposeful to the a criminal entered in the course of deny- Accordingly, general requiring finality. suit. rule Since ing his a final and “preliminary” by precedes definition pealable order.” “final,” imposed presently restraint because the order to tanta- order to show cause be If the hearing any will be final. be entered after (and apparently mount civil action to a Although agree that an cannot regard by I taxpayer it seek- would the ing so restraining temporary deposi- from a the civil be taken to avail himself rules), only rules are applies then the other civil tion equally to order this limitation applicable. Federal Rules Civ- by The type law. order as authorized specifically provides 65(b) il Procedure argument very advanced “label” every temporary that an order which majority cannot create expire by terms within such “shall legal being 7th mere- no after had days, entry, exceed time after calling ly by ait fixes, within the time unless as the court order. good shown, order, for cause so fixed powers states that his a like or unless the trial court is The extended party directed supported precedent, whom the are restraint extended for a that it be consents Fried, Cir., citing re In longer period.” 996; Bodkin, Application of 1 A.L.R.2d Lapides F.Supp. D.C., signifi- language of this Rule The States, 253. restraining power of the court cant. The alleges taxpayer after he taxpayers that time some appeals Upon the voluntarily stipu- had made his books available after in Bodkin government grant advised he was when he “shocked” “to was taxpayers by the lation government investigation crim- it that as a result to which all the relief might instituted, appeal” proceedings inal successful entitled could be agents thought, How- that moot. he had as the as appeal was dismissed represented, judgment that a was “routine” examina- ever, district court’s only being and that dismissed. was complaint and the vacated agents “implied our that had never said specifically referred This court possibility there that the remotest disapproval Bodkin United was express either Sclafani, Cir., F.2d fraud or criminal States v. case, Examining were under consideration.” a situ- Bodkin 408. comparable present to the ation most In under Sclafani held suppress e., appears, i. motion case quite circumstances “the failure similar Rule under Federal and restrain changing course of the in- disclose depositions 41(e), Procedure -Criminal vestigation is not or deceit- fraudulent Procedure Rule of Civil under (265 408, 414) ful” and that: substance, grounds, same investigation “A ‘routine’ tax original advanced, namely, that the were openly commenced as devoid such is voluntary of their books surrender stealth deceit because in- taxpayers audit became for tax taxpayer surely ordinary knows voluntary subsequently were facts when warning is inherent in it a there thereby indicating criminal lia- disclosed government’s will bility. hearing must have been pursue misreporting evidence of of a trial because nature full-scale regard shadowy without line to the n over testimony 1,000 pages of evasion, between mis- avoidance Bodkin,1 expressly disapproved, taken. take willful omission. proce- precedent does not furnish a as “ ‘Surely defendant was aware Lapides, here, pre-indict- was a dure. as that, if a “routine audit” revealed As ment cause. this court show liability, “Nothing said, (cid:127)on in said order review agent ignore merely be- would .suggested that the thus set was primarily he was cause concerned hearing only” (215 abe * * * liability. A civil 256). question Nor was purpose statement of an raised nature the in- there vestigation audit” is “routine junctive provisions. equivalent promise not the law, As to the substantive whether the only liability civil will be considered papers on which the order to show cause regardless the examination of what regarded (e) as a Nor reveals. accountant complaint as a a civil action or businessman so understand it.’ hybrid, unique they or even as a Wolrich, United States v. D.C.S.D. legal Giving possess sufficiency. to the N.Y.1954, F.Supp. 538, taxpayer’s affidavit the most con- liberal (Dimock, J.). complaint struction aas and at the same sug- regarding ap- papers it is time the as an “Moreover unrealistic to same gest government plication for a the could or pending judgment taxpayer keep trial and a final should advised the tendered, issues there in it fails the which its necessari- meet direction legal fluctuating requirements ly investigations suppression. the lead. government Stripped eonclusory assertions, of its burden the the Sclafani, F.Supp. “See United 25.” States v. 266 F. expressly disap 265 F.2d which 2d 50. proves Bodkin, Matter of D.C.E.D.N.Y. discharge appealable in impossible reviewed is not does be would fact, pur- judges mean unlimited no useful district have serve and would government discretion the pose.” agents presenting a evidence to Russo in principle stated The same grand jury pending hearing on a mo- a States, United supress,” tion to can discretion how the Judge, (Clark, Lumbard then Chief except appeal? limited Assume JJ.). Waterman, Fourth and C. disregards days’ judge that a the 10 rejected taxpayer’s contention a temporary restraining order limitation as follows: the stated court grants days. The restrained seems to be contention “The party has no than other recourse move agents con- the secure revenue who to vacate. A refusal to continues vacate taxpayer examination sent of ap- If this order is not obtain with intent his books pealable, the discretion remains “unlim- in it and use a criminal evidence ingredi- ited.” Add to this situation the guilty un- deceit prosecution, are ent supporting papers do divulge they purpose, and less their support as a matter of law. How can obtaining in information that the against improper injunction relief manner Fourth such a violates except by appeal? very secured It all is in Amendment and its introduction say well to what difference does it make Fifth evidence violates the Amend- whether matters are called motions ment; even if the examination actions, preliminary, temporary, civil begun solely to is ascertain the civil criminal but far more is stake than at taxpayer liability of the evi- mere words. experi- Just as on sea unearthed, is tax- dence crime proven ence has that a maximum safe- given payer be warned and ty for all is obtained the formulation opportunity to withdraw his con- navigation of definite rules of and ad- sent, subsequent- or all information thereto, impor- herence so is equally ly obtained inadmissible procedures specified tant legal prosecution.” Turner v. opinion rules be followed. The States, Cir., Judge Biggs (a of the Third Circuit cir- 926, 930. cuit which has rather taken the lead Garrity, Cir., And in Centracchio v. upon strict limitation appealability) page at apposite. Greene, Cir., most Sims v. Court said: 1947, 160 F.2d 512. There district petition disregarded face of “On the court had provi- the time case, certainly present 65(b). sions on the page He said at by petitioner offered at the 516: court, before the district “It is settled that no ques- clear that evidence in may be continued possession did not come into twenty days beyond party unless the government officials rights viola- whom order is directed petitioner’s tion of under the that it consents be extended for Fourth Amendment. He volun- longer period.” tarily evidence, turned over the disclosures, Denying made the motion to dismiss the Bureau, reversing peal order, the Internal Revenue the court purpose page oí determination of 517: his concluded

income tax liabilities.” opinion our “In In conclusion I cannot now in reconcile order effect in the the District majority reached the tempo- result language must be treated Court as a the opinion. If, injunction, they rary of the say, issued without holding sought defendant, order here “Our consent in the face it, police enforcing con- and other officers is of his motion dissolve major indeed a free trary of Rule interest provisions to the society; pros- appeal (a). but so is effective It clear crime, ecution of an interest which lies from a forgotten.” Independence at times seems Shares Deckert v. S.Ct., Corporation, appeal at The L.Ed. 182. may not be dismissed bar therefore de- the order

fendant be reversed.” Fifth

Insofar as the decision of Prod- Dulien Connell Steel v. ucts, (tempo- 240 F.2d 414 rary after issued order Greene, I notice) from Sims v. differs interpre- Third Circuit’s believe that SONS, INC., Plaintiff, LIZZA AND the words tation better follows Appellant, tent the Rule.1 v. Following type of relief al., Defendants, Daniel et A. D’ONFRO Greene, would hold in Sims v. I Appellees. refusing order of March 8th is an order No. 5571. and hence to dissolve an pealable. would vacate On I Appeals Court of United States February as ex- 26th First Circuit. in effect tended Aug. 18, 1960. majority in concur with the their 8th. I respect to the lack of suffi- views with ciency petition because law alleged upon therein clear facts taxpayer is not entitled suppression. In connection with the upon pre-indictment attacks

evidence, apparently which are becom- might

ing increasingly popular, to remember the words of a distin-

well jurist Hand,

guished (L. J.) in In re C.

Fried, 1947, 161 F.2d 465: be an intolerable

“It burden crime,

upon prosecution if possible to test in advance the

competency of evidence which an say

accused, nothing prospec- might accused, be able to show

tive likely to be used him. protection the individual oppression and abuse Circuit, argued within case in the Third dismissed recent 1. Pennsylvania permissive Tr. Motor Ass’n Port authorized Ass’n, 05(b). M. T. Phila. contrary. to the There the is not

Case Details

Case Name: Luther F. Grant and Sirrka v. Grant v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 28, 1960

Citation: 282 F.2d 165

Docket Number: 344, Docket 26183

Court Abbreviation: 2d Cir.