United States v. Stephenson, 12421.
| Decision Date | 19 May 1955 |
| Docket Number | No. 12421.,12421. |
| Citation | 96 US App. DC 44,223 F.2d 336 |
| Parties | UNITED STATES of America, Appellant, v. Warren L. STEPHENSON, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Harold H. Greene, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellant.
Mr. Nicholas J. Chase, Washington, D. C., with whom Mr. Theodore Jaffe, Washington, D. C., was on the brief, for appellee.
Before EDGERTON, BAZELON and WASHINGTON, Circuit Judges.
Appellee was indicted for perjury. He moved in the District Court for suppression, as evidence, of a recording and a transcript of a telephone conversation. The court granted the motion D.C., 121 F.Supp. 274 and the government appealed. Appellee moves to dismiss the appeal.
The court expressed the opinion that its order of suppression was reviewable and cited United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13. In that case the indictment had been dismissed, after the order of suppression and before the appeal, and in the present case the indictment is pending. But in Cefaratti we did "not imply agreement" with United States v. Rosenwasser, 9 Cir., 145 F. 2d 1015, 156 A.L.R. 1200, which treated such a difference as critical. On the contrary, we rested Cefaratti "squarely on the Cohen Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L. Ed. 1528, Swift Swift & Co. Packers v. Compania Caribe, 339 U.S. 684, 70 S. Ct. 861, 94 L.Ed. 1206, and Stack Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 cases." The principle was, we said, that an order which does not "terminate an action" has the finality which 28 U.S.C. § 1291 requires for appeal "if (1) it has `a final and irreparable effect on the rights of the parties', being `a final disposition of a claimed right'; (2) it is `too important to be denied review'; and (3) the claimed right `is not an ingredient of the cause of action and does not require consideration with it.'" 91 U.S.App.D.C. at page 301, 202 F.2d at page 16.
In this case, as in Cefaratti, without the suppressed evidence the prosecution cannot succeed. Yet the two cases differ in at least one critical respect. In Cefaratti, the evidence was obtained by search and seizure. Rule 41(e), Fed.R. Crim.P., 18 U.S.C., provides that when evidence so obtained is suppressed it "shall not be admissible * * * at any hearing or trial." In the...
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Carroll v. United States
...aspect of the District Court's order for suppression. 4 91 U.S.App.D.C. 297, 202 F.2d 13, as explained in United States v. Stephenson, 96 U.S.App.D.C. 44, 45, 223 F.2d 336, 337. 5 28 U.S.C. § 1291, 28 U.S.C.A. § 1291: 'The courts of appeals shall have jurisdiction of appeals from all final ......
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United States v. Koenig
...1944, 145 F.2d 1015 (after first trial, before new trial, order not appealable). District of Columbia Circuit: United States v. Stephenson, 1955, 96 U.S.App. D.C. 44, 223 F.2d 336 (after indictment, order not appealable); Nelson v. United States, 1953, 93 U.S.App.D.C. 14, 208 F.2d 505, cert......
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Di Bella v. United States United States v. Koenig
...have been treated as independent, United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13 (1952). But see United States v. Stephenson, 96 U.S.App.D.C. 44, 223 F.2d 336 (1955). 7 First Circuit: Centracchio v. Garrity, 198 F.2d 382, 385 (1952); Chieftain Pontiac Corp. v. Julian, 209 F.2d......
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State v. Spica, 50289
...certiorari denied 369 U.S. 803, 82 S.Ct. 641, 7 L.Ed.2d 550; United States v. Stephenson, D.C., 121 F.Supp. 274, app. dismd. 96 U.S.App.D.C. 44, 223 F.2d 336. In addition, see the numerous federal and state cases, in which such evidence was admitted, cited in the annotations at 58 A.L.R.2d ......