Lord v. Kelley, Civ. A. No. 63-932.

• Decision Date: 19 November 1963
• Docket Number: Civ. A. No. 63-932.
• Citation: 223 F. Supp. 684
• Parties: Donald R. LORD and Bernard G. McGarry, Sr. v. Alvin M. KELLEY, Robert J. Calhoun, John B. Flattery, Charles R. McNally, and Donald Young.
• Court: U.S. District Court — District of Massachusetts

223 F. Supp. 684

Donald R. LORD and Bernard G. McGarry, Sr. v. Alvin M. KELLEY, Robert J. Calhoun, John B. Flattery, Charles R. McNally, and Donald Young.

Civ. A. No. 63-932.

United States District Court D. Massachusetts.

November 19, 1963.

COPYRIGHT MATERIAL OMITTED

Lawrence F. O'Donnell and John Warren McGarry, Boston, Mass., for plaintiffs.

Murray Falk, Asst. U. S. Atty., W. Arthur Garrity, Jr., U. S. Atty., for defendants.

WYZANSKI, District Judge.

After being twice amended, the complaint in this case has become in effect principally, though not exclusively, a pre-indictment pleading under Federal Rule of Criminal Procedure 41(e) by Lord, as possessor, and by McGarry and other individuals, partnerships, and corporations listed in paragraph XIII of the complaint, as owners, to return records seized from Lord, by Flattery and others, and to suppress the evidentiary use of those records in any federal criminal proceeding which may be undertaken against the complainants.

These are the underlying facts.

1. McGarry and others listed in paragraph XIII of the complaint (herein called the clients) entrusted their records to a father and son, the late Alfred H. Lord and the present plaintiff Donald R. Lord, both being independent professional accountants, to prepare their tax returns. There is no credible evidence that any client, expressly or impliedly, authorized either of the Lords to permit any agent of the Internal Revenue Service to examine or to take those records.

2. Flattery, a special agent of the Internal Revenue Service, signed a summons, dated April 18, 1962, addressed to Lord, requiring him to appear on April 30 at 55 Tremont St., Boston before Flattery to give testimony relating to the tax liability of Bernard G. and Marie G. McGarry, and to bring with him designated records of the clients. Without initially serving this summons, Flattery, with two other special agents, went to Lord's Dedham home which was also his office.

3. Flattery was a man of sufficient experience so that he knew that unless otherwise authorized by his principal, or unless otherwise directed by a judicial order, an accountant in private practice has an obligation not to turn over his principal's records to a third party. Nonetheless, Flattery, after informing Lord that it would be prudent for him to cooperate with the special agents unless he himself wished to get into trouble, demanded the right to take his clients' records to the offices of the Internal Revenue Service. Lord, after indicating that he lacked authority voluntarily to surrender the documents, complied with the demand because he feared that if he did not do so he himself, regardless of his innocence, would be investigated or subject to proceedings initiated by the government. His compliance was not voluntary, but responded to Flattery's threats.

4. When he turned the records over to Flattery, Lord asked for some evidence to show his clients that he had yielded to compulsory process. Then, for the first time, Flattery served upon Lord the summons which, of course, was merely a command that at a date 12 days thereafter Lord should produce the records in Boston.

Upon the basis of the foregoing findings, this Court arrives at the following ultimate findings and conclusions.

The Fourth Amendment to the United States Constitution guarantees "The right of the people to be secure in their * * * papers, and effects, against unreasonable searches and seizures." When a person complains of an unreasonable search, it does not follow automatically that this Court has jurisdiction to hear the case. Without examining all possible bases for jurisdiction, it is sufficient in the case at bar to cite Rule 41 (e) of the Federal Rules of Criminal Procedure which provides that "A person aggrieved by an unlawful search and seizure may move the district court * * * for the return of the property and to suppress for the use as evidence anything so obtained * * *."

It might be supposed that Rule 41(e) gives a federal court jurisdiction to hear an aggrieved person only if he has been indicted, and if his grievance is presented as an interlocutory matter in the course of a criminal proceeding prosecuted by the United States against him as a defendant. But it is plain that this is an incorrect supposition, and that even before he has been indicted an aggrieved person may invoke the jurisdiction of a district court under some circumstances. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614.

The first cases in which an aggrieved person was permitted to invoke the jurisdiction named the United States as the opposing party and involved an alleged unlawful seizure by a United States Attorney. Jurisdiction was sustained on the theory that the United States Attorney as a lawyer was an officer of the court subject to the inherent disciplinary power of any court of record. Go-Bart Importing Co. v. United States, 282 U.S. 344, 354-355, 51 S.Ct. 153, 75 L.Ed. 374; Austin v. United States, James E. Holshouser, 4th Cir., 297 F.2d 356; Grant v. United States, 2nd Cir., 282 F.2d 165, 168; Centracchio v. Garrity, 1st Cir., 198 F.2d 382, 386; United States v. Maresca, S.D.N.Y., 266 F. 713, 717. That exercise of jurisdiction was certainly, to say the least, anomalous. No Act of Congress specifically authorized the federal court to take jurisdiction. Grant v. United States, supra. There was no criminal or civil proceeding in which it could be an interlocutory stage. Centracchio v. United States, supra. The United States as a sovereign had not agreed to be sued. If the aggrieved person were successful, the propriety of a court restraining the United States, as distinguished from its officers, was not clearly established. And not everyone would agree that the prosecutor's unlawful seizure involved his conduct qua attorney and hence subjected him to a court's disciplinary power.

Yet, whatever may be the theoretical difficulties, a district court at this late date must conclude that if the federal prosecutor unlawfully seizes property for use in a criminal prosecution, then even before an indictment is returned (that is, when the criminal prosecution is in posse but not in esse) the party aggrieved has an "independent" action. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614. Such an action is a civil matter and should be so docketed. United States v. Koenig, 5th Cir., 290 F.2d 166, 169; Centracchio v. Garrity, 1st Cir., 198 F.2d 382, 385. Cf. Bolger v. United States, et al., S.D.N.Y., 189 F.Supp. 237, 242. Yet it may not in all aspects be subject to the Federal Rules of Civil Procedure. Di Bella v. United States, 369 U.S. 121, 129, note 8, 82 S.Ct. 654, 7 L.Ed.2d 614. And the adjudication of the trial court is immunized from appellate review, not by statutory but by judicial exception. Di Bella v. United States, Ibid., particularly pp. 132-133 pp. 132-133 of 369 U.S., pp. 660-661 of 82 S.Ct., 7 L.Ed.2d 614.

Perhaps it is not too late to suggest that the best way of beginning such an action is to name as the party respondent the prosecutor and not the United States. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 355, lines 8-10, 51 S.Ct. 153, 75 L.Ed. 374. At any rate if an injunction is to be issued, it would seem that it should bind only individuals and not the sovereign. But it cannot be denied that there are many cases where no such limitation appears to have been recognized.

It certainly is not inappropriate that the initial pleading should take the style of a "complaint" rather than a "motion". A "motion" inevitably suggests that there is already in being some case in the course of which the motion is pleaded as a second or later procedural step. The word "complaint" or "petition" is a more correct description of the opening gambit.

But in the case at bar the difficulty jurisdictionally is that the complaint does not name the federal prosecutor, or even, as in some of the heretofore cited cases, the United States. The only respondents are federal enforcement agents of the Internal Revenue Service. They are not members of the bar of this Court and in that sense officers of this Court subject to its disciplinary power. Nor are the defendants subject to the control of the United States District Attorney. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 354, last 2 lines, 51 S.Ct. 153, 75 L.Ed. 374.

It might have been thought better not to embrace within the anomalous jurisdiction just described any alleged unlawful seizures by federal enforcement officers. Perhaps against them could be invoked some statutory basis of federal jurisdiction (see Cleary v. Bolger, 371 U.S. 392, 396, footnote 7, 414, footnote 3, 83 S.Ct. 385, 9 L.Ed.2d 390); or it might be sufficient for the aggrieved person to be left with an objection to the introduction of the seized property or its fruits in evidence in any administrative, civil, or criminal trial.

However, it seems to this Court that the Supreme Court either has extended or will extend the anomalous jurisdiction so as to reach unlawful seizures by a federal agent connected with the enforcement of law, who should have observed "standards for law enforcement" established by "the federal Rules governing searches and seizures." Rea v. United States, 350 U.S. 214, 217-218, 76 S.Ct. 292, 294, 100 L.Ed. 233 (federal narcotics agent); Bolger v. Cleary, 2nd Cir., 293 F.2d 368, 369 (interpretation by Clark C. J., of Rea). See, however, the diverse views of Harlan J. and Brennan J. in Cleary v. Bolger, 371 U.S. 392, 396-398, 414, 83 S.Ct. 385, 9 L.Ed.2d 390. Compare Note, 76 Harv.L.Rev. 1656, 1664-1666; Note 77 Harv.L.Rev. 62, 149-152. In Rea after a defendant had successfully moved in a federal court for the return and suppression of evidence, that court, in connection with a contemptuous defiance of that order, was held to have jurisdiction to enjoin a specific federal enforcement agent from using "his...