Weinstein v. Attorney General

HOUGH, Circuit Judge (after stating the facts as above). [1] There is not even a suggestion that the books sought to be [675] by Weinstein are now or ever have been in the possession or under the control of the United States attorney for the Southern district of New York. Under such circumstances the service of the order to show cause was, to say the least, insufficient, in that it did not bring before the court any of the parties accused of alleged wrongdoing. It may have been thought (though not argued at bar) that service on the attorney somehow affected or was sufficient in respect of all the other enumerated representatives of divers branches of the government of the United States. If this was the thought underlying the application, it is wholly erroneous. [2] In response, however, to earnest argument, we shall notice the matters raised by the second branch of the objection (in the nature of a demurrer) lodged by the United States attorney on the return of the order in question. That this proceeding bears no analogy to those exemplified by Weeks v. United Stales, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and Silverthorne v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319, is too plain for exposition. Applications for the return of books, papers, etc., said to have been unlawfully seized, have hitherto been made (so far as reported cases show) during the progress of and as incidental to such judicial proceedings as indictments, or after the issuance of a search warrant (United States v. Hee [D. C.] 219 Fed. 1019; In re Chin K. Shue [D. C.] 199 Fed. 282; United States v. Maresca [D. C.] 266 Fed. 713), or after some process had issued returnable to the court in which such application was made (United States v. Mcliie [D. C.] 194 Fed. 894), or when criminal prosecution was in actual progress in such court (United States v. Friedberg [D. C.] 233 Fed. 313). We have held that applications of this nature are interlocutory, and therefore not appealable (Coastwise, etc., Co. v. United States, 259 Fed. 847, 170 C. C. A. 647), and this proceeding must be regarded (as it confessedly is) as an original, Independent application bearing no relation to any proceeding in or process of the District Court for the Southern District of New York. It may be supposed (although it is not definitely so stated) that the object of the application is to prevent the use of the books and papers referred to at the hearing accorded by the executive in deportation proceedings. Whether the power of the court to restore on motion books and papers illegally seized be thought to rest upon the official character of the parties in possession; i. e., on the fact that they hold positions under the United States government (as in most cases above stated), or on the fact that the party in possession is an officer of the court, viz. an attorney at law (as in the Maresca Case, supra), need not be decided, because in this instance the United States attorney possesses nothing that petitioner wishes, and none of the other parties mentioned is concerned in or affected by any suit, action, or proceeding in the District Court other than this application for an order. To sustain such a proceeding as this it must be held that the court below is clothed with plenary power to investigate on motion all unconstitutional searches or seizures, without regard to the question [676] whether or not they bear any relation to proceedings pending in such District Court. For this doctrine no authority exists, and none ought to exist, and the court below was right in refusing to entertain the application, even had the service been effective. Order affirmed, with costs.