Wise v. Mills

189 F. 583, 110 C.C.A. 563, 1911 U.S. App. LEXIS 4411

• Court: Court of Appeals for the Second Circuit
• Decided: July 1, 1911
• Docket: Nos. 293, 294
• Status: Published

Opinion

COXE, Circuit Judge.

It is conceded in the brief submitted by the United States attorney that the writ of error to review the original order directing the return of the seized books and papers will not lie.

It is unnecessary for us to attempt to assign the limits within which a seizure of an indicted defendant’s books and papers may he justifiable, for the reason that we find no warrant in the law lor such a wholesale appropriation of the defendants’ property as is disclosed by this record. Books and papers were seized and taken from their possession which did not, in any way, relate to the crime charged in the indictment.

Assuming that papers relating to the particular offense charged may he seized upon a bench warrant directing the arrest of the defend- > ants, the assumption does not aid the position of the government, for these were not such books and papers.

The order was not only interlocutory but it was discretionary as well.

Starting, then, with the undoubted right of the circuit judge to make the order which was not reviewable, it follows that it was not only proper to enforce it, but it was his duty to do so. In other words, the only course for the United States attorney to pursue was to obey the order. If he did not do so, the court had no alternative but to compel him to obey. There can be no error in enforcing a perfectly valid order. In short, having found the original order proper and valid, we cannot hold the proceedings to enforce it improper and invalid.

We need hardly add that no reflection is intended upon the course of the United States attorney, who was acting in accordance with what he deemed to be his duty, in order that the question might be tested in the courts.

The writs of error and appeal are dismissed.