Lord v. Kelley, 6307.

• Decision Date: 13 July 1964
• Docket Number: No. 6307.,6307.
• Citation: 334 F.2d 742
• Parties: Donald R. LORD et al., Plaintiffs, Appellants, v. Alvin M. KELLEY et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

334 F.2d 742 (1964)

Donald R. LORD et al., Plaintiffs, Appellants, v. Alvin M. KELLEY et al., Defendants, Appellees.

No. 6307.

United States Court of Appeals First Circuit.

July 13, 1964.

John Warren McGarry, Boston, Mass., for appellants.

John M. Brant, Atty. Dept. of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Joseph M. Howard, Attys. Dept. of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Murray H. Falk, Asst. U. S. Atty., were on brief, for appellees.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

On April 18, 1962 Intelligence Agents of the Internal Revenue Service, upon what was stated to be an appointment for a routine audit, entered the combined place of business and home of appellant Lord, a public accountant, and departed some hours later with three cartons of business records, bank statements, checks and stubs, etc., belonging to the other appellants, hereinafter taxpayers, which had been in Lord's custody. Even disregarding dramatic embellishments suggested by Lord in his testimony, and by counsel in argument,¹ the agents' conduct was taken either over the continued objection of Lord, or with consent obtained only by threats of personal harassment, and was in total violation, also, of the rights of the taxpayers. It is true that Flattery, the agent in charge, had in his possession a summons issued under authority of section 7602 of the 1954 Code addressed to Lord and requiring him to appear and give testimony on April 30 and to bring with him the books, records, ledgers, bank statements, cancelled checks and other papers, designated in general terms, of the taxpayers here involved. The summons was served upon Lord as the agents were leaving. This summons, of course, was not a search warrant, nor did it even purport to justify anything done by the agents on April 18. The agents' conduct, in other words, was without semblance of excuse, and the finding of the district court that they knew there was none has not been, and could not be, assailed.²

Thereafter Lord, joined by the taxpayers, filed in the district court what they termed a "Complaint for temporary restraining order and injunction. Return of records and suppression of evidence." Named as defendants were the local District Director and the local Chief of Intelligence of the IRS, and the three agents who made the seizure. The relief asked was that all documents seized "and the oral information, statements and admissions made, and all leads and clues therefrom * * * be suppressed" and that the records, etc. be returned. Secondly, that defendants "be perpetually enjoined from using in any shape, form or manner whatever, directly or indirectly, and from * * * transferring to any person * * * any and all of such evidence illegally obtained." There were also prayers for a preliminary injunction and for general relief.

Following a hearing at which evidence was introduced the court concluded that "where a federal criminal prosecution is probable a federal trial court shall have nonstatutory jurisdiction to enjoin federal enforcement officers from holding or using property they unlawfully seized." It made detailed findings and entered a judgment ordering all records, etc. taken from Lord returned to him, and enjoining all representatives of the IRS "and all persons who have acted in concert with them in the use of the records and papers transferred by Lord" from ever "using in any proceeding * * any information or clues derived during the time they held such records." It further ordered that all "documents, writings, and other papers obtained from persons not parties to this action, * * * notes of interviews with and statements, affidavits and transcripts of testimony * * * and * * * work papers and other papers prepared by personnel of the Internal Revenue Service for use solely within the Government" be deposited with the Clerk of the District Court "open to inspection at any time, without restriction" by any judge or by Lord or by the taxpayers involved. The judgment continued, "Nothing in this injunction shall preclude the United States or its agents from requiring by appropriate warrant, subpoena, summons, or other due process of law, the production of any record or paper covered by the summons" in the possession of the agents when they arrived at Lord's home. It is, essentially, from this last that appellants jointly appeal.³ There is no cross appeal.

The first question is that of our jurisdiction. Before coming directly to this a further recitation may be in order. It is apparent that appellants have received all of the present relief requested. (Indeed, by a painstakingly thorough order they have received more present relief than they requested.) What they wish is that there be attached to the documents returned to them a perpetual immunity from process, civil, as well as criminal. Ostensibly, and persistently, they ask this relief in the name of restoration to the status quo, but, in fact, they ask it as a penalty.⁴ The announced basis of the court's decision was that appellants were "entitled to be as well off as if Flattery had not unlawfully seized those papers, but * * * not * * * any better off".⁵ It pointed out that "Flattery knew of these records before they were delivered to him. More significantly, he had already signed a summons covering those records." From this the court concluded that a total immunization of the records would not merely restore the status quo, but would deprive the government of the benefit of the knowledge it had before the incident. Appellants' response is that the record "clearly demonstrates" that the government had "no such prior independent knowledge." The justification, if any, for this statement must depend upon what is meant by the word "such." Obviously, and admittedly, the government did not have the detailed knowledge of specific records beforehand that it had afterwards. But, equally obviously, it had very considerable knowledge,...