The opinion of the court was delivered by: GOURLEY
This is a petition for rehearing on a motion to suppress evidence in connection with an indictment alleging evasion of income taxes for the year 1950, 26 U.S.C.A. § 145(b).
The matter was initially heard by my associate, Judge Miller, who entered opinions and orders on May 1, 1956 and August 16, 1955 denying said motion.
Parenthetically, I wish to state that in the interest of consistency and uniformity, this court has followed the policy of having the same judge hear all matters relating to the same case. In the instant proceeding, however, by reason of the involvement of Judge Miller in a most prolonged civil trial, and since this member of the court was engaged in hearing criminal cases under the program of rotation now in effect in this District, Judge Miller consented to my hearing said motion and assigned the same to me because of its pressing urgency, involving as it did, the disposition of a preliminary motion essential to the trial of a criminal action which had been pending for a period in excess of two years.
I advert to the rule of law that a ruling on motion to suppress evidence becomes the controlling rule in the case as does a ruling made during trial. The objection may not be renewed at the trial. United States v. Jennings, D.C., 19 F.R.D. 311; Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37.
Furthermore, if a motion to suppress is granted, such order carries finality so as to justify appellate review. United States v. Ponder, 4 Cir., 238 F.2d 825.
The soundness and efficacy of this rule from the point of view of the efficient and expeditious administration of a trial are most apparent. To permit the renewal of such motion during trial is merely to call for a repetition of the same testimony previously elicited, and to result in the taxing of the time and energies of counsel and the court on a matter purely repetitive and a useless performance.
The defendant is saved harmless in view of the fact that he is not required to renew his motion or press his objection, since he is not barred from pressing it upon appeal, if he merely abides the court's ruling and tries the remainder of his case. Cogen v. United States, 278 U.S. 221, 223, 49 S. Ct. 118, 73 L. Ed. 275.
In view of the foregoing, since Judge Miller was not available to hear the petition for rehearing and entered an order assigning all matters relative to the matter to this member of the court, any order which I might enter will be consistent with practice followed in this Circuit where questions arise in a multiple complement court. TCF Film Corp. v. Gourley, 3 Cir., 240 F.2d 711.
The issue, therefore, is whether under the testimony presented before Judge Miller which has been incorporated in the record of this proceeding and the additional testimony presented before this member of the court, including that of the defendant who waived immunity and agreed to be bound by said testimony, justification exists to suppress the evidence upon which the indictment is premised.
In the hearings before Judge Miller testimony was presented through Byron Krieger and Robert J. Madden, Internal Revenue Agents, and Robert W. Corey, Chief of the Intelligence Division of the Internal Revenue Service for the Pittsburgh District. Before this member of the court testimony was elicited from Ross Thompson, staff officer in the Inspection Service; Andrew L. Hankowski, Internal Revenue Agent; George H. Lemay, Internal Revenue Agent and Defendant Maurice Wheeler, and Byron Krieger was recalled for additional testimony. Thompson, whose primary function involved investigation of complaints against Internal Revenue Personnel, maintained his post in Washington and came to Pittsburgh on the basis of an affidavit prepared by one Stanley Barczak alleging criminal wrongdoing on the part of certain Internal Revenue personnel and in addition thereto included defendant's name.
To investigate these allegations a task force of Thompson, Hankowski, Lemay and Robertson came to Pittsburgh. Another person assigned to aid them was Internal Revenue Agent Krieger of Detroit. Thompson told Krieger to conduct a routine income tax investigation of defendant with the additional mission of ascertaining involvement of Internal Revenue employees and defendant in any wrongdoing with a view to obtaining facts which would lead to criminal prosecution. Thompson testified that no suspicion of criminal evasion of income tax violation on the part of defendant existed at the time the investigation was launched, but that the routine investigation to determine civil liability was conducted with the view to ferreting out acts of wrongdoing on the part of Internal Revenue employee with any other person. That the underlying purpose in investigating defendant's tax return was to find evidence of criminal wrongdoing on the part of Internal Revenue employees and whether defendant was implicated in any such wrongdoing. That if defendant were implicated in such criminal wrongdoing, that he was to be included as a possible subject for criminal prosecution. That the representations of a routine tax investigation were but a pretext to accomplish the underlying purpose.
Krieger testified that he proceeded to examine defendant's income tax returns and books without disclosing his special instructions, which examination did not disclose any criminal connection with personnel of the Internal Revenue Department but gave evidence upon ...