In re Wallace & Tiernan Co.

• Decision Date: 06 February 1948
• Docket Number: No. 6055.,6055.
• Citation: 76 F. Supp. 215
• Court: U.S. District Court — District of Rhode Island
• Parties: In re WALLACE & TIERNAN CO., Inc., et al.

76 F. Supp. 215

In re WALLACE & TIERNAN CO., Inc., et al.

No. 6055.

District Court, D. Rhode Island.

February 6, 1948.

Edwards & Angell, of Providence, R. I. for Wallace & Tiernan Co., Inc., Wallace & Tiernan Products, Inc., and Wallace & Tiernan Sales Corporation.

Hogan & Hogan, of Providence, R. I. (Charles H. Tuttle and Loren N. Wood, both of New York City, and William H. Edwards, and Laurence J. Hogan, both of Providence, R. I., of counsel), for Novadel-Agene Corporation.

Grant W. Kelleher, Sp. Asst. to Atty. Gen., Alfred Karsted, Sp. Atty., of Boston, Mass., John F. Sonnett, Asst. Atty. Gen., and George F., Troy, U. S. Atty., of Providence, R. I., for the Government.

HARTIGAN, District Judge.

This matter was heard on the motions of Wallace & Tiernan Company, Inc., Wallace & Tiernan Products, Inc., Wallace & Tiernan Sales Corporation and Novadel-Agene Corporation and on the affidavit of William H. Edwards, Esq., filed May, 9, 1947, "that all photostat copies of documents referred to in the `Order on Motion for Return of Impounded Documents' entered by this Honorable Court on the 19th day of March, 1947, in Criminal Action number 6055 be returned to the movants forthwith. * * *"

The affidavit of Mr. Edwards sets forth in substance that on December 10, 1946, there was filed in this Court in Indictment No. 6055, two motions for return of impounded documents in behalf of Wallace & Tiernan Company, Inc., Wallace & Tiernan Products, Inc., and Wallace & Tiernan Sales Corporation and Novadel-Agene Corporation, which asked for the return of all documents produced by these companies in compliance with certain subpœnas issued at the instance of the grand jury which had returned Indictment No. 6055, such subpœnas being listed in said motions.

The affidavit further sets forth that on March 19, 1947, an order was entered in Indictment No. 6055 granting said motions and ordered the immediate return of the documents referred to in said motions.

The affidavit further alleges that to the affiant's knowledge the attorneys and representatives of the United States of America have made a large number of photostat copies of said documents and still retain them, unlawfully and without justification, in their possession; that on February 7, 1947, the affiant made to Alfred Karsted, Esq., Special Attorney for the United States, an oral request for the return of such photostat copies and again a similar request was made May 2, 1947. The requests so made had not been complied with and, accordingly, on May 5, 1947, letters from the attorneys for the Wallace & Tiernan Companies and Novadel-Agene Corporation were sent to the United States Attorney for this District making formal demand for the immediate return of all photostat copies and that no definite reply, either by way of compliance or refusal, has been received.

The Government has filed no counter-affidavit.

The "Order on Motion for Return of Impounded Documents" entered March 19, 1947, is as follows:

"This cause came on to be heard on the motions of the defendants, Wallace & Tiernan Company, Inc., et al., and Novadel-Agene Corporation, et al., respectively, for return of impounded documents, etc., and was argued by counsel, and thereupon, upon consideration thereof, it is hereby Ordered:

"1. That the documents listed in said motions be, and they hereby are, made available to the defendants forthwith for return to them;

"2. That the orders of impounding described in said motions be, and they hereby are, vacated and rescinded."

April 29, 1946, a grand jury was impaneled in this district. On the same date subpœnas duces tecum were issued to Wallace & Tiernan Company, Inc., Wallace & Tiernan Products, Inc., and Wallace & Tiernan Sales Corporation.

Motions to quash all of the subpœnas were filed on the ground, among others, that the subpœnas constituted an unreasonable search and seizure in violation of the Fourth Amendment of the Constitution of the United States.

May 22, 1946, after hearing and argument, the motions to quash were denied.

September 6, 1946, subpœnas duces tecum were issued to Novadel-Agene Corporation, Industrial Appliance Corporation and the three Wallace & Tiernan Companies. Motions to quash these subpœnas were also filed. However, a satisfactory compliance with the subpœnas was worked out by negotiation between attorneys for the Government and the corporations. Pursuant to the subpœnas, documents were produced by the movants and were impounded by the Court upon application by the Government.

November 18, 1946, the grand jury returned an Indictment, No. 6055, charging eighteen defendants, including the movants, with violations of Sections 1 and 2 of the Act of Congress of July 2, 1890, as amended, commonly known as the Sherman Act, 15 U.S.C.A. §§ 1, 2.

December 10, 1946, the movants filed a motion for the return of the impounded documents.

December 21, 1946, the defendants (except Shutte & Koerting Company) in said indictment moved to dismiss the indictment on the ground, among others, that the grand jury was illegally constituted in that women were intentionally, arbitrarily and entirely excluded from the panel from which the grand jury was drawn.

March 19, 1947, the Court, after hearing argument on the motions to dismiss, held that the grand jury was illegally constituted and that said...