United States v. Birrell, 61 Cr. 692.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtWilliam J. Brennan, III, New York City, for defendant, Lowell M. Birrell
Citation269 F. Supp. 716
PartiesUNITED STATES of America v. Lowell M. BIRRELL, Defendant.
Docket NumberNo. 61 Cr. 692.,61 Cr. 692.
Decision Date23 May 1967

269 F. Supp. 716

Lowell M. BIRRELL, Defendant.

No. 61 Cr. 692.

United States District Court S. D. New York.

May 23, 1967.

269 F. Supp. 717

Robert M. Morgenthau, U. S. Atty., S. Dist. of New York, for the United States; Arthur L. Liman, Sp. Asst. U. S. Atty., and Stephen L. Hammerman, Asst. U. S. Atty., of counsel.

William J. Brennan, III, New York City, for defendant, Lowell M. Birrell.


HERLANDS, District Judge:

Two pretrial motions by defendant Lowell M. Birrell raise novel and challenging questions about the nature and scope of the procedures to be followed after a defendant's successful application to suppress illegally seized evidence.

One problem concerns the inventory of the seized items to be prepared by the Government subsequent to the illegal seizure under an invalid search warrant. The other relates to the character and timing of an evidential hearing to determine whether the Government's trial evidence is or will be absolutely free from the taint of the illegally seized evidence which has been ordered suppressed.

Defendant applies for:

(1) "an order, pursuant to Rule 41(d) of the Federal Rules of Criminal Procedure and the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, directing the United States Attorney to file an inventory of the property which the Government seized from defendant Lowell M. Birrell on August 22 and 24, 1959 with the Clerk of this Court; to deliver to his attorney a

269 F. Supp. 718
copy thereof, as well as a receipt for all property taken, and otherwise duly to comply with the requirements of said Rule 41(d) of the Federal Rules of Criminal Procedure"; and

(2) "an order, pursuant to Rules 12 (b) (1) and (4) and 41(e), Federal Rules of Criminal Procedure and the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, directing that a hearing be held, prior to the trial of the defendant herein, at which the United States will be required to prove beyond a reasonable doubt, that the evidence which it intends to introduce against the defendant at his trial is untainted by the evidence unlawfully seized from the defendant on August 22 and 24, 1959, which this Court ordered suppressed on June 11, 1965."

The pertinent facts and circumstances revolve around a vast quantity of documentary records which were seized on August 22 and 24, 1959 in the Eastern District of Pennsylvania, placed in the custody of this Court in November, 1959, and suppressed as evidence by order of Judge Wyatt of this Court on June 11, 1965.

The odyssey of the records began on August 20, 1959, when information about their location became known at an ancillary proceeding in bankruptcy pending in this Court. On the basis of an affidavit of one of the attorneys in that proceeding, a search warrant issued on August 22, 1959. A second search warrant issued on August 24, 1959 supported by an affidavit of a postal inspector. Each warrant was executed and returned on its issue date.

Accompanying each return was an inventory of the property seized which was prepared by the Deputy Marshal who executed the warrant. The exact language of the description of property in the warrant and of the Deputy Marshal's inventory are set out in the margin.1 It may be seen that the description in the warrant is exceedingly broad, and the wording of the inventory is similarly lacking in specificity. The two searches

269 F. Supp. 719
netted a total of more than fifty file cabinets and cartons of records. The number of individual documents is said to be between one and two million

From late 1959 until July 1961, the records were kept in the custody of the Clerk of this Court. Attorneys in the above-mentioned bankruptcy proceeding and representatives of several government agencies were authorized to inspect and obtain photocopies of the records. The files of the Clerk's office show that various attorneys involved in the bankruptcy proceeding inspected the records, as well as representatives of the Attorney-General of the State of California and the District Attorney for the City of Los Angeles.

In July 1961, with the permission of Judge Palmieri of this Court, the records were moved from a file room of the Clerk's office to a file room of the United States Attorney's office. Representatives of that office, with the aid of investigators from the Securities and Exchange Commission, commenced an inspection and inventory of the records.

Late in 1964—more than five years after the records had been seized—defendant moved for their suppression and return. Finding that the affidavits underlying the warrants were insufficient to establish probable cause, Judge Wyatt ordered the seized property suppressed for use as evidence against the defendant. 242 F.Supp. 191, 201 (1965). By a subsequent order, Birrell was adjudged entitled to the return of these records belonging to him upon proof of ownership. 243 F.Supp. 38, 41 (1965).

For two periods in 1965—one prior to and the other subsequent to the suppression order—Birrell was authorized by court order to inspect the seized property. Both orders incorporated provisions for an extension of time, which were never invoked.

Copies of the inventory compiled by the United States Attorney's office were furnished to Birrell's defense counsel on February 10, 1967 and filed* with the Court. This work product inventory is selectively detailed and amounts to 300 pages. In addition, the Government has submitted, in opposition to defendant's motion, a set of affidavits which purports to demonstrate that the seized records had been kept intact from the time of the seizure until the compilation of the Government's inventory. Defendant, however, strongly disputes the sufficiency of the Government's proof on this point.


Defendant contends that:

(1) the provision for an inventory contained in Fed.R.Crim.P. 41(d) is mandatory and has not been satisfied; and

(2) identification of all of the property originally seized is constitutionally compelled to (a) define the scope of the suppression order, (b) establish that all of the seized property has been made available to defendant, and (c) provide the Court with a sufficient basis to determine whether the Government has met its burden of proving the purity of its trial evidence.

In the event that the Government fails to identify and make available all of the seized evidence, defendant contends that he cannot constitutionally be tried and, therefore, the indictment must be dismissed.

The Government, on the other hand, argues that:

(1) the inventories which accompanied the return of the warrants were proper and sufficient inventories under Rule 41(d);

(2) even if the Deputy Marshal's inventories did not comport with the requirements of Rule 41(d), any deficiency was cured by (a) delivery to defense counsel on February 10, 1967 of the Government's work product inventory, and (b) the orders granting Birrell access to the files, suppression of their use as evidence

269 F. Supp. 720
against him, and the right to recover whatever documents may be his; and

(3) in any event, non-compliance by the Government with the inventory requirements of Rule 41(d) does not—under the Constitution or any pertinent statute, rule or decision—immunize a defendant from further criminal prosecution.

The Court now turns to an analysis of the issues. The sufficiency of the inventory required under Rule 41(d)—undefined by statute or rule—apparently has not heretofore received attention in the published reports. While the language of the rule suggests that the preparation of a proper inventory is mandatory, the weight of authority supports the conclusion that it is a ministerial act, a failure of which will not affect the validity of the underlying search,2 much less immunize the defendant from further prosecution.

Nevertheless, the Court is not powerless to fashion a remedy when the requirements of Rule 41(d) have been ignored. Indeed, on one occasion when no inventory had been prepared, this Court ordered the Government to file an inventory under pain of having the seized evidence suppressed. It was noted then that "to sanction non-compliance with the statute would result in nullifying its purpose." United States v. Gross, 137 F.Supp. 244, 248 (S.D.N.Y.1956) (Weinfeld, J.).

In the instant case, of course, defendant already has secured suppression of the seized evidence, and has established his right to the return of all property to which he is entitled. In these circumstances, perhaps defendant has no further remedy. What purpose can be served in coercing the Government to follow the specified procedure of Rule 41(d)—if it has not already done so— when the search has been held unlawful on other grounds? Nevertheless, it may well be that in such circumstances the trial court has residual discretion under Rule 41(d) to order an inventory or a supplemental inventory when justice so requires.

In the instant case, however, we need not reach this question. Assuming that power to direct an inventory survives the suppression order, the Court perceives no reason for its exercise under the present circumstances. The invocation of such power at this particular juncture would neither vindicate the policy underlying the inventory requirement nor serve the universal interest in expeditious and impartial justice.

Neither the language nor the legislative history of Rule 41(d)3 elucidates the nature of the inventory requirement.

Various semantic arguments may be contrived by comparing the language of the present rule with that of its predecessor

269 F. Supp. 721
provisions.4 But a critique of those arguments would contribute little toward an evaluation of the legislative intent. Inquiry into the purpose underlying the inventory requirement of Rule 41(d) must rest primarily on an analysis of the internal consistency of the subdivisions of Rule 41 and on a harmonization of...

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