Silbert v. United States, Civ. No. 18874

• Decision Date: 06 November 1967
• Docket Number: Misc. No. 564.,Civ. No. 18874
• Citation: 275 F. Supp. 765
• Parties: Philip SILBERT v. UNITED STATES of America and Stephan H. Sachs, United States Attorney, and Paul R. Kramer, Assistant United States Attorney, and David Eagen, Acting Chief, Intelligence Division, Internal Revenue Service. Philip SILBERT v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

275 F. Supp. 765

Philip SILBERT v. UNITED STATES of America and Stephan H. Sachs, United States Attorney, and Paul R. Kramer, Assistant United States Attorney, and David Eagen, Acting Chief, Intelligence Division, Internal Revenue Service.

Philip SILBERT v. UNITED STATES of America.

Civ. No. 18874 Misc. No. 564.

United States District Court D. Maryland.

November 6, 1967.

Norman P. Ramsey, H. Thomas Howell and Maurice T. Siegel, Baltimore, Md., for Philip Silbert in both cases.

Stephen H. Sachs, U. S. Atty., and Alan Baron, Asst. U. S. Atty., for respondents in Civ. No. 18874 and the United States in Misc. No. 564.

FRANK A. KAUFMAN, District Judge.

In Civil No. 18874, Silbert seeks a preliminary injunction enjoining respondents from presenting certain evidence to a grand jury of this Court or from making any other use of such evidence until such time as this Court has determined, on the merits, the issues raised in Miscellaneous No. 564 by Silbert's motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. Therein, Silbert seeks the return of certain seized property, the suppression of evidence, and the quashing of a search warrant. In Civil No. 18874, the relief sought would enjoin respondents from discussing with or disclosing to any persons, including the State of Maryland and City of Baltimore officials, any of the evidence or information allegedly illegally seized or obtained. Silbert also asks this Court, in the event relief is not granted as prayed in Civil No. 18874, to grant immediate pre-indictment relief in Miscellaneous No. 564 pursuant to Rule 41(e).

Silbert alleges and affies that on the night of October 23-24, 1967, his home at 3406 Janellen Drive in Pikesville, Maryland, was searched and certain property was seized in violation of his rights under the Fourth and Fifth Amendments of the United States Constitution and of Federal Criminal Rule 41. The legal basis for Silbert's position is that the search warrant pursuant to which the search and seizure took place is insufficient on its face. Silbert also contends that the property seized is not the property described in the warrant. While the latter contention has not been waived, counsel for Silbert, during a hearing before this Court, in connection with the injunctive relief sought in Civil No. 18874 and the alternative pre-indictment relief pursuant to Rule 41(e) sought in Miscellaneous No. 564, asked this Court, at this time, only to examine the warrant and the supporting affidavit, within their four corners, and to determine if probable cause was set forth in the affidavit for believing the existence of grounds upon which the warrant was issued. None of counsel have asked this Court at this time to take any testimony or to consider any evidence in either of these two cases before ruling in connection with the issues currently presented in both cases. Thus, this Court has before it at this time only questions of law and no questions of fact.

The search warrant in this case was issued on October 22, 1967, by Chief Judge Roszel C. Thomsen of this Court, pursuant to Federal Criminal Rule 41(a), upon the basis of a 29 page affidavit made before him on that date by Special Agent LeRoy Martin of the Internal Revenue Service. The affidavit set forth the Special Agent's reasons for believing that there were concealed at 3406 Janellen Drive, certain records, papers, writings, slips, currency, safes, books, newspapers, marking and writing material, and other gambling paraphernalia being used in violation of the Federal Wagering Tax laws.

The relief prayed by Silbert in Civil No. 18874 may or may not be broader than that legally available under Rule 41(e). It has been said that it is difficult to imagine any pre-indictment relief which could not be granted under Rule 41(e) and that, therefore, injunctive relief is no longer needed and should not be granted. Rodgers v. United States, 158 F.Supp. 670, 677 (S.D.Cal. 1958). Be that as it may, the view which this Court takes in both of these pending cases makes it unnecessary to reach the question of whether all of the relief Silbert seeks in these cases could be granted under Rule 41(e).

In connection with the Miscellaneous case, the Government argues that the Rule 41(e) petition is premature and and should be entertained by the Court only if and when an indictment has been returned. In Civil No. 18874, respondents contend that this Court should not exercise its admittedly existing equity powers at this pre-indictment stage to interfere in criminal proceedings or prosecution except under extraordinary circumstances which respondents state are not present in this instance. This Court agrees with the positions of respondents in the equity case and of the Government in the Rule 41(e) case.

The development of what is termed the "anomalous," "nonstatutory" jurisdiction of a Federal District Court in a case instituted by a person complaining of an unlawful search and seizure and seeking at a pre-indictment stage to suppress the use of any property or information so obtained, is traced by Judge Wyzanski in Lord v. Kelley, 223 F.Supp. 684 (D.Mass.1963). Such jurisdiction rests upon the supervisory power of the Court over the actions of federal law enforcement officials within its Federal District. Centracchio v. Garrity, 198 F.2d 382, 386 (1st Cir. 1952) cert. denied, 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672 (1952); Lord v. Kelley, supra. The question in many of the cases involving pre-indictment petitions or motions to suppress has been whether the order of the District Court has been interlocutory and non-appealable, or final and appealable. This question was answered in DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), in which, as the Fourth Circuit wrote in Austin v. United States, 353 F.2d 512 (4th Cir. 1962), the Supreme Court held "interlocutory and unappealable an order of a District Court entered in a proceeding commenced prior to indictment for the purpose of suppression of evidence". In recognition of the holding of the Supreme Court in DiBella, the Fourth Circuit recalled its earlier mandate in Austin (at 297 F.2d 356 (1961)) and dismissed the appeal from the order of the District Court as "interlocutory in nature and not appealable in advance of final judgment." 353 F.2d 512.

In Austin, the complainant sought to enjoin the United States Attorney from presenting to a federal grand jury certain evidence allegedly obtained from the complainant by Internal Revenue Service agents in violation of her Fourth and Fifth Amendment rights. The District Court, without a hearing on the facts, and after argument by counsel as to why pre-indictment relief was or was not required, granted the motion of respondents to dismiss. In a two to one decision, the Fourth Circuit held that the suppression of evidence at the pre-indictment stage is not a matter within the discretion of the District Judge and that the Court below should have held an evidentiary hearing, made findings of facts and reached conclusions of law. In Smith v. Katzenbach, 122 U.S.App. D.C. 113, 351 F.2d 810, 815 n. 5 (1965), Judge Leventhal remarked that if, after DiBella and the Fourth Circuit's recall of its original mandate in Austin, "the song of Austin has ended, the melody may linger on in District Court rulings and attitudes, guided by its wisdom though no longer channeled by its...