United States v. Maresca

• Decision Date: 27 February 1920
• Citation: 266 F. 713
• Parties: UNITED STATES v. MARESCA et al.
• Court: U.S. District Court — Southern District of New York

266 F. 713

UNITED STATES v. MARESCA et al.

United States District Court, S.D. New York.

February 27, 1920

[Copyrighted Material Omitted]

The indictment is for conspiracy to commit an offense against the United States, and also (in other counts) for various substantive offenses, which may loosely be described as using alcohol for unlawful purposes. Under the docket number of this indictment, and therefore prima facie in this litigation, two motions have been made and argued before me.

Motion No. 1 arises under an order to show cause signed February 6 1920, served upon the United States attorney for this district, and requiring that official, as also George F Anderson, United States internal revenue agent, or Daniel E Porter, supervising revenue agent for the district of New York, to show cause why the said attorney and the said revenue agents should not 'forthwith redeliver and return' a certain book to the petitioning defendant (Henry F. or Enrico) Maresca.

Motion No. 2, brought under the same case number, arises under another order to show cause, likewise signed February 6, whereby the defendant Promotion Sales Company is required to show cause why an order should not be entered 'vacating (an) order of Commissioner Samuel M. Hitchcock,' which order was entered February 5, 1920, entitled in this court under the caption 'United States v. Promotion Sales Co., Inc.'

The commissioner's order shows that on November 19, 1919, a search warrant was issued by him, under R.S. 3462 (Comp. St. Sec. 6364), authorizing and directing G. F. Anderson, internal revenue agent, 'to enter and search room 206 of the building No. 1482 Broadway, borough of Manhattan,' and further authorizing said Anderson 'to secure and seize all books, records, or documents pertaining to the possession or sale of nonbeverage alcohol, if the same be found on the premises.'

Anderson made a return to this search warrant, setting forth that he had, pursuant thereto, seized certain books and papers, which are enumerated and described in the order. Thereupon Promotion Sales Company filed a document or pleading which 'controverted the material allegations of the affidavit upon which the search warrant was issued.'

The commissioner then held a hearing, and, having taken the testimony of witnesses, concluded that there was 'no sufficient evidence of the existence of probable cause to support the said search warrant'; whereupon the order complained of directed 'that all the books, papers, records, and documents * * * which were seized by virtue of the said search warrant * * * be returned forthwith to the Promotion Sales Company, Incorporated, or their duly authorized representative.'

Forthwith the order to show cause in motion No. 2 was procured, and by that order it is provided that pending the decision of this motion all the books and papers which the commissioner had ordered to be returned to the Promotion Sales Company be 'impounded and placed in the custody of the clerk of this court. ' It is understood that the clerk now has them.

Hirson & Bertini, of New York City (H. Snowden Marshall, Roger B. Wood, and John J. Curtin, all of New York City, of counsel), for petitioner.

Francis G. Caffey, U.S. A., and Ben A. Matthews, Asst. U.S. Atty., both of New York City.

(1) Remarks on the Practice.

HOUGH, Circuit Judge (after stating the facts as above).

Motion No. 1 is simplified by an admission in open court that the one book which is the subject of that motion is in the physical possession of the United States attorney. Therefore the motion seems to be strictly within the procedure approved in Weeks v. United States, 232 U.S. 383 and described at page 387, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A.

1915B, 834, Ann. Cas. 1915C, 1177. It is a proceeding in the case whose caption is at the head of this memorandum.

Motion No. 2 cannot be procedurally a part of this case. This indictment was of course, never pending before Commissioner Hitchcock; indeed, no indictment had been found when the search warrant issued in November, 1919. The order now complained of was entered in a proceeding against the Promotion Sales Company only, and it cannot be that that order was in, or a part of, proceedings under indictment 8043 and recorded in Docket C-20, page 466.

I regard this order to show cause as an independent, original proceeding, having no recognized name, but based upon a theory of procedure which must be capable of being stated as follows: Any action or order by a United States commissioner, while discharging duties imposed upon him or permitted to him in his capacity as an examining or committing magistrate (e.g., Judicial Code, Sec. 270 (Comp. St. Sec. 1247); Rev. Stat. Sec. 1014 (Comp. St. Sec. 1674)), may be summarily reviewed, corrected, or set aside by the District Court for the district in which the commissioner functions.

It is further noted that although the motion is in form to vacate the commissioner's order, such vacation of order would now be an idle ceremony, for the order to show cause itself in effect superseded and held for naught the commissioner's order, when it impounded the books and papers in controversy and directed their deposit with the clerk of this court. It is plainly intended that whatever becomes of the books, etc., will depend wholly on an order of this court directed to its own clerk.

This court having thus possessed itself summarily of the subject-matter of controversy, the motion of the United States attorney is in substance that it shall now proceed to adjudicate the disposition of the books after considering (1) the evidence taken before the commissioner and (2) such other evidential matter as it permits to be adduced; in other words, treat the matter either like an admiralty appeal (which is a new trial) or a case removed from a justice's to a court of record, which is a proceeding de novo.

(2) The Law Underlying Motion No. 1.

Whenever an officer of the court has in his possession or under his control books or papers, or (by parity of reasoning) any other articles in which the court has official interest, and of which any person (whether party to a pending litigation or not) has been unlawfully deprived, that person may petition the court for restitution. This I take to be an elementary principle, depending upon the inherent disciplinary power of any court of record.

Attorneys are officers of the court, and the United States attorney does not by taking office escape from this species of professional discipline. Thus power to entertain this motion depends on the fact that the party proceeded against is an attorney, not that he is an official known as the United States attorney. It is further true that the right to move does not at all depend on the existence of this indictment; it might be made, were no prosecution pending.

Further, it does not depend on the presence or absence of any especial kind of illegality; the petitioner may be and often is remitted to plenary suit; sometimes it is better in the exercise of discretion to proceed summarily. This especial motion asserts as the illegality complained of that certain internal revenue agents 'demanded' the book in question, while informing petitioner that 'they were authorized to seize and carry away any papers and documents' from No. 138 Prince street, New York City, where the book was. This is the guarded language of the petition which in form charges that the revenue agents did then 'take and carry away' the book in question, but does not allege a seizure by force.

Since Weeks v. United States, supra, and Flagg v. United States, 233 F. 481, 147 C.C.A. 367, it seems to be thought that, if the prosecutor is found in possession of any documents (especially) of evidential value that once belonged to an accused, a motion to get them back should prevail, apparently because the United States attorney ought to be prevented from using the papers in evidence in violation of the Fifth Amendment. I am not advised of any holding to that effect and fail to see how the evidence clause of that amendment can be invoked before any evidence is given.

The only ground on which this or any similar motion can rest is that the prosecutor's possession of the book or paper is the result of an 'unreasonable search and/or seizure' (Fourth Amendment), or of a deprivation of property 'without due process of law' (Fifth Amendment). This must always, and here does, present a question of fact.

(3) Facts in Motion No. 1.

In my opinion the following is the truth: As above set forth, Agent Anderson had a search warrant for a room in a building other than 138 Prince street; he executed that warrant, and in so doing met (if he did not already know) Maresca. Him Anderson impressed with the latter's official station and wide general powers, and Maresca wished to propitiate so great a man. Therefore he took Anderson in his motor to 138 Prince, a place occupied by the Promotion Sales Company, against whose office the search warrant had issued.

There, without force, but under the impression that Anderson had right to take the book if resistance was made, and believing it would be better for him to give it up with a show of willingness, Maresca gave Anderson the volume in question, and the latter gave it to the United States attorney. Maresca's present opposition arises, and this motion results, from later advice of counsel.

(4) Decision of Motion No. 1.

There is as yet no authoritative decision that obtaining papers or property by fraud or guile is a violation of the Fourth Amendment. Nor, so far as I know, has any court gone quite that far in emasculating the prosecution of offenders. Detectives and the like, of course, regard their frauds as pious, and the law has used the fruits thereof...