290 F.2d 166 (5th Cir. 1961), 18355, United States v. Koenig

Docket Nº:18355.
Citation:290 F.2d 166
Party Name:UNITED STATES of America, Appellant, v. Daniel J. KOENIG, Appellee.
Case Date:April 12, 1961
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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290 F.2d 166 (5th Cir. 1961)

UNITED STATES of America, Appellant,


Daniel J. KOENIG, Appellee.

No. 18355.

United States Court of Appeals, Fifth Circuit.

April 12, 1961

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Marshall Tanor Golding, Atty., Dept. of Justice, Washington, D.C., Lloyd G. Bates, Jr., Asst. U.S. Atty., Miami, Fla., E. Coleman Madsen, U.S. Atty., Miami, Fla., for appellant.

Joseph P. Manners, Harold Peter Barkas, Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The scales of justice are not always evenly balanced; one of the scales holds a few extra weights in favor of a person accused of crime. This appeal deals with one of those weights: the limited jurisdiction of this Court to hear a government appeal from an order of a district court suppressing evidence. 1 For purposes

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of the appeal, two elements in the case are important. (1) The defendant filed his motion to suppress before he was indicted, but after a complaint was issued against him and after a commitment hearing before the United States Commissioner. (2) The suppression order was issued in a district different from the district in which the defendant was indicted and will be tried. We hold that the order is not appealable. Zacarias v. United States, 5 Cir., 1958, 261 F.2d 416, certiorari denied 359 U.S. 935, 79 S.Ct. 650, 3 L.Ed.2d 637, controls our decision.

Government appeals in criminal cases are exceptional and are not favored by the courts. Carroll v. United States, 1957, 354 U.S. 394, 400, 77 S.Ct. 1332, 1 L.Ed.2d 1442. Such appeals must be based on express statutory authority; the government had no right of appeal at common law. United States v. Sanges, 1892, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; United States v. Janitz, 3 Cir., 1947, 161 F.2d 19; United States v. Rosenwasser, 9 Cir., 1944, 145 F.2d 1015, 156 A.L.R. 1200. See Orfield, Criminal Appeals in America, p. 58 (1939).

The primary statutory authority for government appeals in criminal cases, 18 U.S.C.A. § 3731, does not specifically include appeals from orders suppressing evidence. 2 The Judicial Code, however, does authorize appeals from 'all final decisions of the district courts * * * except where a direct review may be had in the Supreme Court.' 28 U.S.C.A. § 1291. The appealability of an order suppressing evidence depends, therefore, upon whether it is final'. 3

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Orders in an incidental ancillary proceeding to a criminal action are interlocutory and non-appealable; orders in independent plenary proceedings are final and appealable. United States v. Wallace & Tiernan Co., 1949, 336 U.S. 793, 69 S.Ct. 824, 93 L.Ed. 1042; Cogen v. United States, 1929, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275; United States v. Ponder, 4 Cir., 1956, 238 F.2d 825. See 6 Moore, Federal Practice, P54.14.

The crucial factor in deciding whether a suppression order is issued in an independent proceeding or is merely a step in the trial of a case, is the pendency of a criminal action in which the evidence sought to be suppressed may be used. 4 If there is no criminal proceeding pending, a motion for suppression of evidence and the return of such (evidential) property is an independent civil suit. But at what stage does a criminal proceeding begin? The courts of appeal have reached various answers. 5

The filing of an information or an indictment is frequently accepted as the

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dividing-line to mark the beginning of criminal proceedings. See Orfield, Criminal Procedure from Arrest to Appeal, pp. 204-208 (1947). The difficulty here is that at the time Koenig filed his motion, there was no way of knowing positively that he would be indicted. In Post v. United States, 1894, 161 U.S. 583, 587, 16 S.Ct. 611, 613, 40 L.Ed. 816 (not, however, involving a motion to suppress), the Supreme Court said:

'Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against the accused, either by infiled in court, or, at the least, by complaint before a magistrate . The submission of a bill of indictment by the attorney for the government to the grand jury, and the examination of witnesses before them, are both in secret, and are no part of the criminal proceedings against the accused, but are merely to assist the grand jury in determining whether such proceedings shall be commenced; the grand jury may ignore the bill, and decline to find any indictment; and it cannot be known whether any proceedings will be instituted against the accused until an indictment against him is presented in open court.'

When the motion to suppress is made after indictment the order is considered interlocutory and neither the defendant nor the government may appeal from it, because the question whether the accused would be indicted has been resolved and motions related to the suppression of evidence are integrally related to the criminal proceeding. Carroll v. United States, 1957, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (government's right to appeal); Cogen v. United States, 1929, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (defendant's right to appeal). Orders suppressing evidence are then in the nature of a trial judge's rulings on admissibility of evidence. Even when the motion results in dismissal of the indictment for lack of evidence, the order is not final and hence not appealable. Carroll v. United States, 1957, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442. But where the motion is made by the applicant before an information or indictment is found or returned against him, some courts-- and we recognize the force of their arguments-- treat the proceeding as independent and the resulting order final and appealable. Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Burdeau v. McDowell, 1920, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950;

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Davis v. United States, 5 Cir., 1943, 138 F.2d 406; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915.

This Court has drawn the line at a stage earlier than indictment. Zacarias v. United States, 5 Cir., 1958, 261 F.2d 416, certiorari denied 359 U.S. 935, 79 S.Ct. 650, 3 L.Ed.2d 637. This Court treats an order to suppress, following on the heels of a complaint and a commitment hearing, as one step in a series of steps constituting the criminal proceeding. In Zacarias the defendant's motion to suppress was filed and denied before indictment. 6 A complaint had been issued by a United States Commissioner, a commitment hearing had been held, and Zacarias was already bound over to the district court. This Court refused to allow an appeal by the defendant, on the ground that the order denying his motion was interlocutory. Koenig is in no different situation from Zacarias. Here, a complaint and a warrant had been issued, the Commissioner had held a full preliminary hearing, the Commissioner had announced oral findings recommending that Koenig be removed to the district court in the Southern District of Ohio, and the district court reached its decision on suppressing the evidence four months after Koenig had been under indictment. In the light of Zacarias, Koenig's motion to suppress was not an independent action but simply an early step in the criminal case against him. 7

The fact that the motion for the return of property was denied, while the motion to suppress was granted, so that the property remains in the possession of the court, adds some weight to the view that the order appealed from is interlocutory. Cf. United States v. Rosenwasser, 9 Cir., 1944, 145 F.2d 1015, 1017; Carroll v. United States, supra, 354 U.S. at page 404, n. 17, 77 S.Ct. at page 1338.

The Government seeks to distinguish Zacarias on the ground that the Zacarias appeal was from an order denying a defendant's motion to suppress evidence; here, the appeal is from an order granting the motion. When there is a denial of the motion, the defendant still may object to the evidence when it is introduced in the trial and may appeal from a verdict against him. If, on the other hand, the motion to suppress is granted, the government cannot introduce the evidence, cannot appeal if it loses the case, and may be forever deprived of questioning the validity of the order. But on this score, the position of the government is no worse than in the usual case of an adverse ruling on a point of evidence during a criminal trial. There too the government would have no right of appeal...

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