Dugan & McNamara v. Clark

• Decision Date: 16 September 1948
• Docket Number: No. 9725.,9725.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: DUGAN & McNAMARA, Inc., et al. v. CLARK, Atty. Gen., et al.

170 F.2d 118 (1948)

DUGAN & McNAMARA, Inc., et al. v. CLARK, Atty. Gen., et al.

No. 9725.

United States Court of Appeals Third Circuit.

Argued June 11, 1948.

Decided September 16, 1948.

James F. Masterson, of Philadelphia, Pa., for appellants.

Asher W. Schwartz, Sp. Asst. to the Atty. Gen., (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., Leon H. Fox, Asst. U. S. Atty., of Norristown, Pa., and Asher W. Schwartz, Sp. Asst. to the Atty. Gen., on the brief), for appellees.

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

Dugan & McNamara, Inc. ("Corporation"), and several of its officers began this proceeding in the court below with a petition for a contempt order which also prayed that a grand jury subpoena duces tecum be quashed. The petition for the contempt order was abandoned, and the cause was treated below, as on this appeal, as a motion to quash the subpoena. The appeal follows the denial of the motion.

From the limited record, it appears that previously certain of the Corporation's records were seized by government agents and were submitted as evidence and considered by the then grand jury, which returned indictments against the Corporation and its officers. In that proceeding, a motion was made, after the return of the indictments, under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., for the return of the records on the ground that their seizure was illegal. The motion was sustained, ultimately the documents were returned, and the government entered a nolle prosequi on the indictment against the Corporation.

The instant controversy arises out of the fact that within a few days after the nolle prosequi was entered, the subpoena here attacked was addressed to the Corporation and its officers requiring the production of certain documents including some or all of those which were the subject of the prior litigation. The motion to quash the subpoena is bottomed on the theory that the records sought were adjudicated to have been illegally seized, and that under Rule 41(e) they "shall not be admissible in evidence at any hearing or trial."

The position of the government is that the records in issue relate to war contracts; that the contracts and the governing statutes provide for inspection of such records by government agents; that the prior illegal seizure has been erased by the return of the documents, and the government ought not to be deprived of the rights and privileges reserved to it; and that Rule 41 (e) does not change the existing law, and since the records belong to the Corporation no privilege in them may be asserted by its officers.

The primary issue, however, is whether the order denying the motion to quash the subpoena duces tecum is an applicable order.

The revised Judicial Code, Title 28 U.S. A. § 1291, provides that "The courts of appeals shall have jurisdiction of appeals from all final decisions * * *". As such, it conforms to the former Section 128 (a) of the Judicial Code, as amended, 28 U.S.C.A. § 225(a), which provided: "The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions * * *". The element of finality in the action of the lower court sought to be reviewed remains, obviously, a prerequisite to the exercise of the appellate jurisdiction we possess.

On the score of finality, we think the case sub judice falls squarely within the factual situation in, and the rule of, Cobbledick v. United States, 1940, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, to which we alluded in United States v. Horns, 3 Cir., 1945, 147 F.2d 57, 59.

In the Cobbledick case, the immediate question, stated 309 U. S. on page 324, 60 S.Ct. on page 541, was "whether an order denying a motion to quash a subpoena duces tecum directing a witness to appear before a grand jury is included within those `final decisions' in the district court which alone the circuit courts of appeal are authorized to review by § 128(a) of the Judicial Code, 28 U.S.C. § 225(a), 28 U.S.C.A. § 225(a)." Discussing the matter of "piecemeal disposition * * * of * * * a single controversy", the Court said, 309 U.S. at page 325, 60 S.Ct. at page 541: "An accused is entitled to scrupulous observance of constitutional safeguards. But encouragement of delay is fatal to the vindication of the criminal law. Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court's rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal." (Emphasis supplied.) Then, reaching the question, whether a witness summoned to produce documents before a grand jury is subject to different rules, the Court said, 309 U.S. at pages 327, 328, 60 S.Ct. at page 542: "The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings. The proceeding before a grand jury constitutes a `judicial inquiry', * * * of the most ancient lineage. * * * The duration of its life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the `orderly progress' of investigation should no more be encouraged in one case than in the other. That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue. * * * Whatever right he may have requires no further protection in either case than that afforded by the district court until the witness chooses to disobey and is committed for contempt. * * * At that point the witness' situation becomes so severed from the main proceeding as to permit an appeal. To be sure, this too may involve an interruption of the trial or of the investigation. But not to allow this interruption would forever preclude...