United States v. Foley, 26603.
| Decision Date | 07 November 1960 |
| Docket Number | No. 26603.,26603. |
| Citation | 283 F.2d 582 |
| Parties | UNITED STATES of America, Petitioner, v. Honorable James T. FOLEY, United States District Judge, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Theodore F. Bowes, U. S. Atty., for the Northern Dist. of New York, and Kenneth P. Ray, Asst. U. S. Atty., Syracuse, N. Y., for petitioner.
Before CLARK, MOORE and FRIENDLY, Circuit Judges.
Study of the Government's petition for mandamus and its supporting brief convinces us that the petition must be denied. In the interest of expedition, which the Government suggests may be peculiarly important because of the possible running of the statute of limitations against criminal prosecution of the taxpayers in early December, we deny the petition without awaiting taxpayers' brief or oral argument.
This petition relates to the same proceeding under F.R.Crim.Proc. 41(e), 18 U.S.C. by taxpayers Luther F. and Sirrka V. Grant to suppress evidence from their books and records, which taxpayers believe the Government intends to present to a grand jury, with which we dealt in Grant v. United States, 2 Cir., 1960, 282 F.2d 165. There the Government appealed from an order restraining its use of the evidence1 pending a hearing which Judge Foley had originally set for March 21, 1960; we dismissed the appeal for want of appellate jurisdiction. Thereafter Judge Foley directed that the hearing be held on October 17. Before then the Grants moved for leave to amend their petition to suppress and for production of documents by the Government in lieu of the subpoena previously served. On October 17 the judge granted leave to amend and ruled on the motion to produce, in a manner we shall state below. He set the hearing for October 24. Instead of going to hearing, the Government obtained a stay from this Court and asks us to mandamus the judge to vacate his orders for a hearing and for the production of documents. We find no sufficient reason for granting this relief.
A moving party under F.R.Crim. Proc. 41(e) must show he is "aggrieved by an unlawful search and seizure" on one of four specified grounds. So far as the Grants are concerned the only applicable ground is "that (1) the property was illegally seized without warrant." In our prior opinion we intimated doubt whether "the petition alleges facts which if proved would require the grant of relief." It is by no means clear to us that the position has been significantly altered by the amended petition, which seems to differ chiefly in the addition of conclusory allegations. Nevertheless we cannot say the petitions were so clearly lacking in merit that the District Judge's decision to hold a hearing went beyond the discretion accorded him. We turn therefore to his rulings on the production of documents.
We fully understand the Government's concern lest motions under F.R.Crim. Proc. 41(e) for the suppression of evidence obtained from taxpayers' books and records should become a fertile means for harassing the Government by taxpayers' excursions through government files and for delaying or preventing indictments for violation of the Revenue Acts in the meanwhile. With this consideration in mind, we made clear in our earlier opinion the limited nature of the issue that was raised by taxpayers' motion or that might be raised by any motion of this sort. We reiterate that, since there is no claim that force was applied, the only issue is whether taxpayers turned over their books and records without inducement by fraud or deceit. But we see no basis for thinking...
To continue reading
Request your trial
-
In re Grand Jury Proceedings, Harrisburg, Pennsylvania
...subsequent decision of the Supreme Court in United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed. 510 (1966). United States v. Foley, 283 F.2d 582 (2 Cir. 1960) is even less in point. It is merely another phase of the litigation in Grant v. United States, supra. The cases involved ta......
-
United States v. Covello
...affirmed, 257 F.2d 760 (3 Cir. 1958), affirmed, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). Our decision in United States v. Foley, 283 F.2d 582 (2 Cir. 1960), relied upon by appellant, is not to the contrary. In Foley the Government sought by mandamus to have us instruct the distri......
-
U.S. v. Spagnuolo, 74-1272
...and must have, the discretionary power to exclude from consideration such testimony as it may find untrustworthy. See United States v. Foley, 283 F.2d 582 (2d Cir. 1960). See also United States v. Covello, 410 F.2d 536, 544-45 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d ......
-
U.S. v. Murphy
...v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975). The opinions in Covello and Sebastian also satisfactorily distinguish United States v. Foley, 283 F.2d 582 (2nd Cir. 1960), upon which defendant relies.7 United States v. Percevault, 490 F.2d 126 (2nd Cir. 1974); United States v. McMillen, 489 F.2......