265 F. 859 | W.D.N.Y. | 1920
The defendants have filed a joint plea in abatement herein, to which the government has' demurred on the ground of insufficiency. An epitome of the plea follows:
-(1) That there was no competent legal evidence before the grand jury warranting the indictment.
(2) That there was no evidence of conspiracy to commit the offense charged in the indictment.
(3) That the books and papers of one McConkey, which had been illegally seized after an illegal search on February 25, 1919, in violation of the Fourth Amendment of the Constitution of the United States, were introduced in evidence before tire grand jury.
(4) That the office of the Silverthorne Lumber Company, Incorporated, and of Asa K. Silverthorne, was unlawfully invaded on February 25, 1919, and books, papers, and documents belonging to such persons were seized and carried away, in violation of the Constitution of the United States; that they were improperly taken to the office of the United States attorney, and copies made thereof, and excerpts taken therefrom; that on March.3, 1919, such books, papers, and documents, illegally seized, were ordered returned by this court to the said defendant company, and the copies, photostatic copies, and excerpts therefrom were impounded with the clerk of this court. It is alleged that there was only a colorable compliance with the orders of the court, and numerous books and papers unlawfully seized were retained and suppressed by the United States attorney, and other federal officials; some were exhibited and delivered to Dan B. Leonard, attorney for the United States Railroad Administration, and to attorneys for different railroad companies, and to William J. Flynn, an investigator for the United States Railroad Administration; that such persons having possession of the books and papers worked over them, and “from sources, clues, and leads” contained therein obtained information upon which to base a charge against the defendants of criminal offenses against the United States, which charge of offenses or accusations, the plea avers, could be negatived by the books, papers, and documents suppressed by the federal officials; that the offenses charged against the defendants were based solely and only upon information obtained from the books, papers, and documents unlawfully seized, and from the copies thereof; and that the .indictment herein was procured by information obtained from
(5) That such persons confederated together to. oppress the defendants Silverthorne Lumber Company, Incorporated, and Silverthornes individually, and to destroy their business, by conducting an unlawful search and seizure, and cause them to 'be indicted herein, and indicted for other offenses specified in seven separate indictments, and to institute civil actions against them and attach their property. The plea also alleges that, because of the illegal seizure and suppression of the books, papers, and documents, the defendants will be gravely prejudiced at the trial, and may be unable to make a defense to the accusations.
(6) That one Richard Walsh, a stenographer, was present in the grand jury room during the taking of testimony, to the prejudice of the rights of the accused, and the defendants pray judgment whether the indictment should be further prosecuted against them, and for its dismissal.
“A plea in abatement is a proper mode of raising objection that the indictment was found by an illegal grand jury, or illegally found by a legal grand jury.”
See, also, Hillman v. U. S., 192 Fed. 264, 112 C. C. A. 522; U. S. v. Mitchell (C. C.) 136 Fed. 896.
“The government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had. The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more- regular form’ to produce them; that tne protection of the Constitution covers the physical possession but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U. S. 393, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible’. If knowledge of them is gained from*863 an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.”
In Flagg v. U. S., 233 Fed. 481, 147 C. C. A. 367, a case of unlawful search and seizure, where secondary evidence was used at the trial after the books unlawfully taken were worked over by the United States attorney, Judge Coxc, writing for the Circuit Court of Appeals for the Second Circuit, said:
“The question then is reduced to this:. Oan a party be convicted of a crime upon proof procured from the books and papers which have been taken from him by force and without pretense of legal authority? * * The return of the defendant’s books and papers, after all the information contained therein had been obtained by the prosecuting officers, clid not cure the original trespass. The wrong had then been done. The information illegally obtained was in the possession of the United States attorney, whose agents had been working over the papers ‘for three long years.’ ”
This principle, the Supreme Court said, in Silverthorne Lumber Co., Inc., supra, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. —, was plainly applicable to this case. If, then, the books and papers, after the unlawful seizure, were copied, excerpted, and worked over by the United States attorney or his assistants, and if the information acquired “shall not be used before the court, but that it shall not be used at all,” it follows that, if it was the basis for the indictment without sufficient evidence from independent sources, the defendants suffered an injury in a substantial right guaranteed to them by the Fourth Amendment of the Constitution, to wit, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and the indictment in such case may be barred from prosecution and trial.
• It is true, as the government contends, that there was evidence showing that the basis for the indictment was procured from independent sources, and not from any wrongful act (as, for instance, the testimony of Woodworth); but this does not negative the allegation that clues from the books and papers, directly or indirectly, enabled the United States attorney to obtain the indictment. Under the circumstances, the rights of the accused, in my opinion, cannot be fairly-protected unless the facts are made clear in advance of the trial on the merits, so that evidence thus obtained may be excluded, and the books and papers still in the possession of the United States attorney and those acting under his control he returned. As said in Edelstein v. U. S., 149 Fed. 636, 79 C. C. A. 328, 9 L. R. A. (N. S.) 236:
“The inhibition [of the Fifth Amendment] not only protects one from the disclosure of facts which would tend to prove his guilt, but also from disclosure of facts which might furnish a clue or a link in the chain of evidence by which a criminal offense might be ma.de known.”
An order may be entered, in conformity with this opinion, sustaining the demurrer as to pleas 1, 2, 3, 5, and 6, but overruling it as to the fourth.