In re Sana Laboratories, 7480.
| Decision Date | 02 December 1940 |
| Docket Number | No. 7480.,7480. |
| Citation | 115 F.2d 717 |
| Parties | In re SANA LABORATORIES, Inc., et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Besson & Pellet, of Hoboken, N. J. (Harlan Besson, of Hoboken, N. J., and Andrew O. Wittreich and John J. Meehan, both of Jersey City, N. J., of counsel), for appellants.
William F. Smith, Acting U. S. Atty., of Trenton, N. J., and Irwin L. Langbein, Sp. Asst. to the Atty. Gen., for appellee.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
This is an appeal from a denial of a petition praying for the suppression of certain evidence alleged to have been illegally seized by government agents. The petition was filed on behalf of Sana Laboratories, Inc., a permittee authorized to withdraw specially denatured alcohol used by it in the preparation of medical and chemical products, and on behalf of James A. Iorio and Edward J. Iorio.
On Friday evening, November 6, 1936, an investigator of the Alcohol Tax Unit who had been watching Sana's plant followed and seized a truck which had taken on six drums of alcohol at the plant. The serial numbers had been removed from these drums. The next morning he returned to the plant with other agents and they were all admitted by the janitor. The agents on that day took from the plant the manufacturing records and purchase and sales books and placed under arrest several persons. The agents had no warrant either for the arrests or the seizure of the documents. The persons arrested were brought before a commissioner later that day and were released on bail that night. On the Monday following the agents returned to the plant and collected invoices covering materials used in the manufacture of preparations containing alcohol and certain sales records. These records were placed in a sealed box and were removed from the premises by the agents on the next day.
This petition was filed in the court below on December 3, 1936. Affidavits were filed by both sides and hearing was held. On June 10, 1940, the court below entered its order denying the prayer of the petition. In the meantime, an indictment was returned on March 31, 1938, against Sana Laboratories, Inc., and certain individuals, including James A. Iorio and Edward J. Iorio, charging a conspiracy to defraud the United States of tax.
Out of the chronology of these events arises the first point which we must consider. It is contended that this court is without jurisdiction on the ground that the order of the court below is not final within the meaning of § 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a). The contention is based upon the fact that the indictment was returned before the order was made. It is clear that such an order would be appealable if no indictment had been found. Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; In re Milburne, 2 Cir., 1935, 77 F.2d 310. As said in Cogen v. United States, 1929, 278 U.S. 221, 225, 49 S.Ct. 118, 120, 13 L.Ed. 275: "The independent character of the summary proceedings is clear, even where the motion is filed in a criminal case, * * * wherever the motion is filed before there is any indictment or information against the movant * * *." But the government argues that the interposition of the indictment renders the order interlocutory. This proceeding commenced as a separate one. It did not lose its character as an independent proceeding by the fact that an indictment was subsequently returned which accused the petitioners, among others, of a crime. Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374. Furthermore, the petition was entitled as a separate matter and was treated as a special proceeding as in Essgee Company of China v. United States, 1923, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917. We hold, therefore, that the order appealed from is final and that this court has jurisdiction.
The court below directed the...
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