Coastwise Lumber & Supply Co. v. United States

259 F. 847, 170 C.C.A. 647, 1919 U.S. App. LEXIS 1692

• Court: Court of Appeals for the Second Circuit
• Decided: May 20, 1919
• Docket: No. 237
• Status: Published

Opinions

WARD, Circuit Judge.

The Coastwise Company, out of abundant caution, has taken both an appeal and a writ of error in this case. The proper remedy is the writ of error, and we shall take no further notice of tire appeal.

The subject of review is an order of the United States District Court for the Eastern District of New York dated February 17, 1919, denying the petition of the Coastwise Company dated January 11 for a return of its books, papers, and memoranda impounded by an ex parte order of the District Court dated November 25, 1918, so that they might be used by the government in the trial of indictments pending against the Coastwise Company and 15 individual defendants.

November 7, 1918, the individual defendants were arrested; the indictments against all the defendants-were found November 22, and the books, papers, etc., were originally seized under search warrants issued by United States commissioners under the act of June 15, 1917, c. 30, 40 Stat. 217, as being property used as means for committing a felony, viz. a conspiracy to defraud the United States in violation of section 37 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1906 [Comp. St. § 10201]). One warrant was issued in the Eastern district of New York November 15, 1918, one in the Southern district November 16, and one in the district of New Jersey on the same date.

November 22, 26, and 27 the Coastwise Company demanded hearings before the respective commissioners under sections 15 and 16 of title 11 of the act of June 15, 1917 (Comp. St. 1918, §§ 10496%o, 10496J4p); hut the commissioners in the Eastern and Southern districts of New York refused to proceed further because of the impounding order, and, though the commissioner in the district of New Jersey vacated the search warrant issued by him,, the United States marshal of that district had already handed over to the United States attorney for the Eastern district of New York the books and papers seized under it.

The government at the outset makes the objection that the order is interlocutory, and therefore not appealable, because our appellate jurisdiction is restricted to final decisions of the District Courts, with exceptions not material here. Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1133 [Comp. St. § 1120]), § 128.

It, .seems to us quite manifest that the search warrants were issued in the criminal action. They describe the ‘property authorized to be seized as being used to commit a felony, viz. a conspiracy to defraud the United States in violation of section 37 of the Penal Code. The individual defendants had been already arrested on this charge, and all the defendants were under indictment before the Coastwise Company made its demand for a hearing before the United States commissioners under sections 15 and 16 of title 11 of the act of June 15, 1917, and of course before this petition was filed in the District Court.

It may be suggested that the petition was an independent proceeding because the notice of motion and the affidavit in support of it were entitled “In re Books and Papers of the Coastwise Dumber & Supply Company, a Corporation,” and the subsequent proceedings were entitled in a similar way. We regard the form of title used as of little importance.' The material consideration is whether the demand was made in the criminal action or as an independent special proceeding. A defendant cannot make an interlocutory order final by the choice of any particular form of title. All the earlier proceedings were entitled in the criminal action “United States of America against Coastwise Dumber & Supply Company, Inc.,” and the other defendants. The particular order sought to be reviewed describes the books and papers as impounded “to aid the government in the prosecution of indictments against the said corporation and other defendants mentioned in said indictments,” and in his opinion the District Judge describes the Coastwise Company, the petitioner, as the defendant, saying : “ * * *. Inasmuch as it appears that all of the papers are absolutely necessary to the government’s case against the defendant, I am not disposed to interfere with the impounding order.”

In the case of Wise v. Mills, 220 U. S. 549, 31 Sup. Ct. 597, 55 L. Ed. 579, the District Court entered an order committing the United States attorney for contempt, because of his refusal to obey its order to return books and papers of the defendant in a criminal action seized without a warrant. Upon his writ of error the Supreme Court held that the order committing for contempt was final as to the United States attorney because, he not being a party to the criminal action, nothing more remained to be done as far as he was concerned, while it held the order to return the defendant’s books and papers was interlocutory.

When one not a party to the action has been committed for contempt» the order is final and appealable as to him (Nelson v. United States, 201 U. S. 92, 26 Sup. Ct. 358, 50 L. Ed. 673; Alexander v. United States, 201 U. S. 117, 26 Sup. Ct. 356, 50 L. Ed. 686); and when there is no action pending a demand for a return of books and papers seized is of course an independent special proceeding (Perlman v. United States, 247 U. S. 12, 38 Sup. Ct. 417, 62 L. Ed. 950; Veeder v. United States, 252 Fed. 414, 164 C. C. A. 338).

Because it is not before us, we express no opinion upon the question whether this wholesale seizure of the Coastwise Company’s books and papers was an infringement of its rights under the Fourth and Fifth Amendments of the Constitution of the United States, but, because the order before us is interlocutory, the writ of error is dismissed without prejudice.