Appeals from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
Defendants were charged with, and convicted of, the crime of devising a scheme to defraud and using the mails in furtherance thereof and also with a conspiracy to violate Section 338, Title 18, United States Code, 18 U.S.C.A. § 338. They were tried together, and imprisonment sentences pronounced on both. Each appealed separately. The questions presented on both appeals are in some respects alike and one opinion will dispose of both appeals.
Defendants ask us to review and reverse the ruling of the District Court made on their motion to suppress evidence secured through an allegedly illegal search of their property and possessions.
The issue is a narrow one.Were two searches made by post office inspectors reasonable?
Post office inspectors without search warrants made two searches, one August 3, 1938, and one August 16, 1938. The Government's answer to the asserted illegality of the first search is that defendants consented thereto.
Its justification of the August 16th search was that it was made on the occasion of the arrest of the defendants pursuant to warrants issued on the indictment returned in this case. No search warrant was necessary.
On this second search, seventeen mail bags of books, papers and documents were taken in the course of a two hour search made by the post office inspectors while the marshal stood by and the defendants were making arrangements for bail.
The District Court heard oral evidence and ruled against the defendants' motion.
Defendants were in the business of merchandising cosmetics and did so by means of hundreds of solicitors with whom agency contracts were executed. the alleged fraud set forth in each of the many counts of the indictment arose out of these agency contracts. Deposits taken from the solicitors were not repaid, or only rarely. salaries earned, due to impossible requirements as to hours of service, daily reports, etc., of the agency contract, could not be, or at least were not, collected.
Defendant Thomson had successfully promoted several cosmetic companies, either alone or in partnership. Complaints about him and his ways reached the post office inspectors, who, on August 3, without warrant, called at defendants' place of business to investigate the facts and obtain the names and addresses of the agents so that they might correspond with them. One inspector testified he asked for the names of various agents. He testified that defendant went through his files and gave them to him voluntarily. Thomson, on the other hand, denied granting permission to the inspector to withdraw such records.
The District Court heard oral evidence on the fact issues arising out of defendant's motion to suppress the evidence obtained from this and the other search and reached the conclusion, which we think is well supported by the evidence, that Thomson not only waived his right to object to the use of this evidence, but invited the post office inspector to examine the same and "get any ...