The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
Defendants Stein and Rosenberg have been charged in a multiple
count indictment with a mail fraud scheme involving a financial
consultant service. The accused business operated in part out of
a Chicago office from which the government obtained, in a manner
hereinafter described, certain records. These are sought to be
suppressed by appropriate motion of both defendants. Briefs have
been exchanged and evidence taken.
Joseph Stein, having pled guilty to the charges in 70 CR 317,
the joint motion to suppress by defendants Stein and Rosenberg is
moot as to Stein. The motion of Rosenberg is the subject of this
memorandum and order.
The evidence indicates that the records in question and sought
to be suppressed were delivered to federal authorities by one
Erwin Blaz who had previously appeared before a federal grand
jury and produced documents, and who later called the authorities
to say he had discovered additional records.
The government has established that Blaz delivered these
records, which he said were newly discovered, to federal
authorities for safekeeping, after which a grand jury subpoena
duces tecum was issued covering them, and in response thereto,
Blaz subsequently appeared and identified them. The government
states that it thereafter examined them for the first time. At
the time of the hearing on this motion, Blaz was deceased.
The records sought to be suppressed were contained in a medium
sized cardboard carton, which for convenience during the hearing
and in this memorandum is referred to as the Blaz box.
The central issues in the case are the factual question of how
Blaz came into possession of these records, and the legal
question of whether the manner of his acquiring possession taints
the evidence despite his voluntary delivery to the government.
The fact of the grand jury subpoena is deemed to be of no legal
consequence in the determination of these issues.
The government denies any involvement in the acquisition of the
box by Blaz, and the evidence supports this position. Therefore,
momentarily putting aside the question of whether the box was
abandoned by defendants and found by Blaz, as he claimed, or
stolen by him, as the defendants claim, we consider first the
legal question whether the government can take voluntary delivery
from a third party of evidence usable against defendants, without
regard for the manner in which the third party acquired the
records, as long as the government was no way involved in
inspiring or participating in the acquisition. This question is
posited in its most fundamental form, by assuming for purposes of
discussion that Blaz stole the records in question, without the
instigation or knowledge of any agent of the government.
The memoranda of the government establish the proposition that
where the government was not involved in the circumstances under
which the person subpoenaed came into possession of the records,
the fourth amendment does not apply. United States v. McGuire,
381 F.2d 306 (2 Cir. 1967).
Defendant's cases do not controvert this proposition. In
Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), relied
upon by defendants, the seizure of defendant's packages in
shipment was done by federal agents. In Schwimmer v. United
States, 232 F.2d 855 (8th Cir. 1956), the court reaffirmed the
right of the owner of records to move to quash subpoena issued
against custodian of records. The ultimate issue involved in the
instant case was not reached by the Eighth Circuit in Schwimmer.
In Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d
856 (1964), the government came into possession of the records by
means of a search of Stoner's hotel room with the consent of the
hotel clerk. These facts are not analogous to the situation here.
The principle to be applied, therefore, permits acceptance by
the government of records submitted by Blaz without regard for
how Blaz got them as long as the government was not involved in
their acquisition. We need not consider the question whether this
rule would apply if the agent of the United States knew they were
stolen, since there is no convincing evidence that the federal
authorities here knew or should have known of this fact.
Despite this, however, the question raised in this case remains
a close one. The records are apparently those of the defendants,
and the government's possession of them clearly presages their
use against the defendant. The defendant claims Blaz stole them,
and produces evidence which, while not preponderant, is at least
susceptible to that inference. It is not appropriate in this
circumstance to be satisfied ...