United States v. Birrell

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: William B. Pennell, Menahem Stim, New York City, for defendant
• Citation: 243 F. Supp. 36
• Parties: UNITED STATES of America, v. Lowell M. BIRRELL, Defendant.
• Decision Date: 25 June 1965

243 F. Supp. 36

UNITED STATES of America,
v.
Lowell M. BIRRELL, Defendant.

United States District Court S. D. New York.

June 25, 1965.

Robert M. Morgenthau, U. S. Atty, for the Southern District of New York, for United States, Paul R. Grand, Thomas J. Cahill, Asst. U. S. Attys., of counsel.

William B. Pennell, Menahem Stim, New York City, for defendant.

WYATT, District Judge.

The government moves under General Rule 9(m) for reargument of a motion made by defendant Birrell under Fed.R. Crim.P. 41(e) and granted in substantial part by order, with opinion, dated June 11, 1965, D.C., 242 F.Supp. 191. The motion for reargument was properly made returnable on June 28, 1965, but memoranda for and against the motion for reargument have been submitted and said motion may now be decided.

The points made by the government have all been carefully considered but they do not change the decision made.

It is neither necessary nor appropriate to discuss each of the points made for the government. Certain of them may be mentioned.

No hearing is necessary to determine whether Birrell abandoned the records. Certainly he did not throw them in a waste basket as was done with two of the items in Abel v. United States, 362 U. S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). It is assumed that at the time of the seizure Birrell was a fugitive from justice and that such statutory provisions as 18 U.S.C. §§ 1071 and 1073 were applicable.

243 F. Supp. 37

I cannot, however, accept the argument for the government that such a fugitive as a matter of law abandons all of his property in the place from which he fled, or even that he abandons as a matter of law the property which was used as the means and instrumentality of the offense on account of which he fled

Cases such as the recent Hair Industry, Ltd. v. United States, 340 F.2d 510 (2d Cir., January 26, 1965) or United States v. Fago, 319 F.2d 791 (2d Cir. 1963) have no application to the case at bar. They are instances where records in the possession of a corporation are required to be produced by that corporation over the claim by a sole stockholder that to do so would violate "his personal constitutional privileges under the Fourth and Fifth Amendments" (340 F.2d at 511). They have nothing to do with the seizure of records from the possession, actual or constructive, of the movant against whom the search and seizure were directed.

The government refers me to two recent decisions of Judge Weinfeld.

United States v. Epstein, D.C., 240 F. Supp. 84, was a case in which property belonging to a corporation was seized on the premises of that corporation under a search warrant. Judge Weinfeld held that the warrant was valid; he did say that, if invalid, the search violated no constitutional rights of "the individual defendants, even though they were stockholders or officers". The property was in the possession of the corporation and the search was of the premises of...