Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Plaintiffs appeal to this court from, first, an order of the district court dismissing plaintiffs' complaint for want of equity, and, secondly, an order denying and dismissing with prejudice the said complaint when considered as a petition addressed to the judge in charge of the grand jury, April term, 1956 for the Northern District of Illinois.
The complaint narrates judgments of conviction of plaintiffs entered in said district court in 1953, and their reversal by this court on June 15, 1955*fn1 and our remandment to the district court with instructions to sustain defendants' motion as amended to suppress certain evidence and to retry the case.*fn2
The complaint alleges that defendants Russo and McNelis filed their "authorities" to act as special assistant attorneys general and to conduct a grand jury investigation covering possible charges of obstruction of justice, conspiracy to violate Internal Revenue laws, perjury, and making of false statements, and that said last named defendants on April 10, 1956 "procured the issuance of a subpoena duces tecum directed to Leon J. Busby, an accountant who has done considerable work for plaintiffs * * *," returnable before a grand jury of said court, requiring the production of a list of documents set forth in haec verba in the complaint, some of which had theretofore been ordered suppressed by this court in its former opinion, whereby the constitutional rights of plaintiffs would be defeated and the meaning of this court's mandate would be subverted.
The complaint also charges that, in February 1956, defendant Mammel was examined "adversely in a discovery examination in the said case of Homan Mfg. Co. v. Ernest J. Sauber with respect to an allegation by the Government in said litigation that Homan Mfg. Co., Inc. had attempted to obstruct, impede, and defeat the Internal Revenue Service in its determination of additional tax liabilities, and that as shown by his answers to the deposition on file in the records of this Court as a part of the record in said cause 55 C 1541, the said Mammel based most of his answers on said subject upon or in relation to documents submitted to Revenue officials which are ordered to be suppressed by" our mandate.
The complaint prays that the subpoena duces tecum be quashed, "that the defendants and all other officials of the Government herein be ordered, enjoined and restrained by this court from using, directly or indirectly, any of the material covered by the Motion to Suppress which the Court of Appeals has ordered be granted, or from using any copies, memoranda, summaries, or notes made or based in whole or in part on or from such material before the Grand Jury, and from describing or summarizing orally any of the suppressed material before the Grand Jury, and that the defendants Russo and McNelis be ordered, enjoined and restrained from taking any witness, whether the said Mammel or any other person, before the Grand Jury for the purpose of having or knowingly permitting him to testify, directly or indirectly, with respect to any part or detail of or any summary or resume of all or any part of the suppressed material, or copies of it or leads from it."
Defendants moved to dismiss the complaint on the ground that it fails to state a cause of action.
1. In the oral argument in this case plaintiffs' counsel have made it clear that they contend that the suppression of evidence renders that evidence thereafter unavailable at any future time and against all persons, including plaintiffs.
In our previous opinion we held that the district court erred in denying the motion to suppress, which was directed against books, records and information therefrom obtained by the government following a voluntary disclosure by plaintiffs. Our action operated to prohibit the future use in that case only of the matters thus suppressed as evidence. The suppression has no effect as to offenses not being tried in that case or to persons not parties to that proceeding. The essence of plaintiffs' argument seems to be that the order of suppression of this evidence has placed an eternal brand of outlawry upon it as to all persons. What we have just said constitutes a rejection of the validity of plaintiffs' argument.
To further demonstrate the unsoundness of plaintiffs' contention, let us consider a hypothetical case. Officers obtain possession of a machine gun and ammunition therefor, either by an unlawful search and seizure, violating the fourth amendment to the federal constitution, or by threats or promises inducing the delivery of said objects to the officers, in violation of the fifth amendment. The person from whom the articles are thus taken is indicted on a federal charge involving their use and, on his motion, an order for suppression of said articles as evidence is sustained, thus preventing their use against him upon the trial of the charge for which he had been indicted. During the trial the defendant alone, or a friend, or both of them in concert, suddenly rush from the courtroom and seize the machine gun and ammunition from an adjoining anteroom and, thus equipped, attempt to escape, resulting in their killing a deputy marshal by a shot from the machine gun. The defendant and his friend, or either of them, is indicted for murder. Can it be logically contended that neither the grand jury, which returned the murder indictment, nor the court upon the trial of the murder charge has a right to consider as evidence the machine gun and ammunition? An answer in the affirmative would be shocking and, we believe, would not be sustained by any legal authority.
We find nothing in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319, or other cases cited by plaintiffs inconsistent with the views herein expressed.
In United States v. Wallace & Tiernan Co., 336 U.S. 793, 69 S. Ct. 824, 93 L. Ed. 1042, the Supreme Court said that the Silverthorne exclusionary rule stemming from the fourth amendment should not be extended to cases where government officials have not committed a wrong in the method by which they received evidence and that the government does not forfeit all opportunity to make use of such evidence once it is suppressed for a particular criminal proceeding. The court stated, 336 U.S. at page 802, 69 S. Ct. at page 829:
"* * * a decision on a motion to return or suppress evidence in a pending trial may be no more than a procedural step in a particular case and in such event the effect of the decision would not extend beyond that case. Whether a motion is to be treated as independent and plenary or as merely a procedural step in a pending trial must be determined by particular circumstances. See Cogen v. United States, 278 U.S. 221, 49 S. Ct. 118, 73 L. Ed. 275. The circumstances here we think show that the order now considered was not one of permanent general ...