United States v. Gouled

Decision Date13 September 1918
Citation253 F. 770
PartiesUNITED STATES v. GOULED et al. SAME v. GOULED.
CourtU.S. District Court — Southern District of New York

Francis G. Caffey, U.S. Atty., of New York City.

Martin W. Littleton, of New York City, for defendant Gouled.

MANTON Circuit Judge.

This is a motion to require the district attorney of the United States for the Southern District of New York to deliver to the petitioner (defendant herein) all books papers, contracts, memoranda, check books, account books check vouchers, letters, personal diary, diaries, ledger telephone address books, and other papers described in his petition. The property taken from the defendant was seized on the 17th of June and on the 22d of July, 1918, from his place of business at No. 1 Madison avenue, New York City.

The grand jury has indicted the defendant and others for violation of section 37 of the United States Criminal Code. Act March 4, 1909, c. 321, 35 Stat. 1096 (Comp. St. 1916, Sec. 10201). A conspiracy to defraud the United States is alleged, and consists of fraud in the sale of articles of clothing to the government. The affidavit on behalf of the government indicates that a search warrant was issued on each of these days, and each search was made pursuant to the warrant. A search warrant may be issued as a means of obtaining evidence of crime. Adams v. New York, 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575.

But the defendant urges that this search was made in violation of the Fourth and Fifth Amendments of the Constitution, relying upon Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746, Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, and Flagg v. United States, 233 F. 481, 147 C.C.A. 367. But the distinction in the Weeks and Flagg Cases and the case at bar is that here there are two search warrants, which were used and which are not successfully attacked as irregular or invalid. Judge Coxe, in his opinion in the Flagg Case, said that--

'had there been such a warrant issued on proper proof by competent authority in the case at bar, the defendant's contention that the seizure of his property was unlawful, wanton, and in violation of his constitutional rights might have been unavailing. Such a warrant, issued by a court of magistrate having jurisdiction, protects the officer executing it, even though he may transcend his authority.'

The question of whether the use of the evidence may compel the defendant to be a witness against himself is prematurely raised, and whether or not there has been a violation of the Fifth Amendment must be tested when proof is offered upon the trial. The Fourth and Fifth Amendments must be treated as quite distinct, and have been by the courts. Hale v. Henkel, 201 U.S. 43, 26 Sup.Ct. 370, 50 L.Ed. 652. The language of the Espionage Act (Act June 15, 1917, c. 30, tit. 11, Sec. 2, subd. 2, 40 Stat. 217) is that a search warrant may be issued--

'when...

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3 cases
  • United States v. Maresca
    • United States
    • U.S. District Court — Southern District of New York
    • February 27, 1920
    ...there existed probable cause when warrant issued, he should sustain the seizure. This was the holding of Judge Manton in the Case of Gouled, 253 F. 770, and I therewith. This does not mean that knowledge gained by the very act of seizure, or from the thing seized, can be used to support a f......
  • United States v. Gouled
    • United States
    • U.S. District Court — Southern District of New York
    • September 16, 1918
  • The Sarmatia
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 14, 1918
    ...253 F. 767 THE SARMATIA. THE BARBARIGO. United States District Court, D. Maryland.November 14, 1918 ... George ... Forbes, of ... ...

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