Citations
- 256 F.2d 745
Full opinion text
McLAUGHLIN, Circuit Judge.
This case raises a number of weighty questions, the only one of which we will have to decide is whether there are sufficient reasons for sustaining the granting of a motion upon the second rehearing thereof by a second judge of a district court after a first judge of the same court had already twice denied it.
The defendant was indicted on Septem-her 9, 1954 for evading 1950 income taxes< On October 18, 1954 he filed motions to suppress certain of the evidence which he alleged had been acquired illegally by the government and to dismiss the indictment because its return had been based on the presentation of that evidence to the grand jury.
The alleged illegality in the acquisition of the evidence was that defendant made his records available to investigating agents who were ostensibly conducting a routine examination when in fact the investigation was actually intended to obtain evidence for possible criminal prosecutions of others with whom defendant was suspected of being involved. At hearings on the motions December 9th and 10th, 1954 it developed that defendant had originally been suspected of having connections with some misfeasance by Internal Revenue Service employees. It is beyond question that attention first focused on defendant’s tax returns because of this suspicion, so that when an audit was made it had the two-fold purpose of ascertaining whether the returns were correct and whether they would show involvement in the matter which was under special investigation. Evi-' dence on the latter point seems to have been sought primarily for the purpose of constructing a case against other suspects rather than against Wheeler. In any event the investigating agent revealed only the first of the two purposes to the defendant when he first approached him for the purpose of gaining access to defendant’s records
In fact the investigation developed nothing on the point of involvement, but it did turn up evidence which the authorities apparently considered warranted indictment for income tax evasion. The investigation thus concluded with exactly what is a foreseeable result of any income tax return audit, should the audit develop evidence of fraud.
On these facts Judge Miller on August 17, 1955, denied the motion for suppression of the evidence and for dismissal of the indictment, without prejudice to defendant’s right to object to the admission of the evidence at trial. On May 1, 1956, he entered an order denying defendant’s petition for reargument and reconsideration of the motion. An appeal to this court was dismissed for want of jurisdiction.
On August 27, 1956, defendant’s new counsel filed another petition for rehearing 0f the motion to suppress evidence, Hearing was held on the petition on November 26, 1956, and on January 4, 1957 before Judge Gourley. On February 21, 1957, an order was entered by Judge Miller assigning the disposition of the petition for rehearing to Judge Gourley nunc pro tunc September 21, 1956, with eon-sent of Judge Gourley. It appears from the record that this was done that the matter might be speedily dispatched, as Judge Miller was involved in the trial 0f two lengthy cases and it would not be convenient for him to handle the petition,
On March 20, 1957, Judge Gourley granted the motion for suppression of the evidence. D.C., 149 F.Supp. 445. This order was not appealable. Carroll v. United States, 1957, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442. On September 3, 1957, the government petitioned l°r rehearing on the motion. The matter was heard on September 6, 1957, and denied on that date by Judge Gourley who simultaneously entered an order dismissing the indictment for having been returned as a result of presentation to the grand jury of the evidence ruled to have been illegfby acqaire jn ajj criminai cases, in the fol-iowing instanceSi to wit;
“From a decision or judgment quashing, getting aside, or sustaining a demurrer or plea in abatement to any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this Act.”