Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This case raises a number of weighty questions, the only one of which we will have to decide is whether there are sufficient reasons for sustaining the granting of a motion upon the second rehearing thereof by a second judge of a district court after a first judge of the same court had already twice denied it.
The defendant was indicted on September 9, 1954 for evading 1950 income taxes. On October 18, 1954 he filed motions to suppress certain of the evidence which he alleged had been acquired illegally by the government and to dismiss the indictment because its return had been based on the presentation of that evidence to the grand jury.
The alleged illegality in the acquisition of the evidence was that defendant made his records available to investigating agents who were ostensibly conducting a routine examination when in fact the investigation was actually intended to obtain evidence for possible criminal prosecutions of others with whom defendant was suspected of being involved. At hearings on the motions December 9th and 10th, 1954 it developed that defendant had originally been suspected of having connections with some misfeasance by Internal Revenue Service employees. It is beyond question that attention first focused on defendant's tax returns because of this suspicion, so that when an audit was made it had the two-fold purpose of ascertaining whether the returns were correct and whether they would show involvement in the matter which was under special investigation. Evidence on the latter point seems to have been sought primarily for the purpose of constructing a case against other suspects rather than against Wheeler. In any event the investigating agent revealed only the first of the two purposes to the defendant when he first approached him for the purpose of gaining access to defendant's records.
In fact the investigation developed nothing on the point of involvement, but it did turn up evidence which the authorities apparently considered warranted indictment for income tax evasion. The investigation thus concluded with exactly what is a foreseeable result of any income tax return audit, should the audit develop evidence of fraud.
On these facts Judge Miller on August 17, 1955, denied the motion for suppression of the evidence and for dismissal of the indictment, without prejudice to defendant's right to object to the admission of the evidence at trial. On May 1, 1956, he entered an order denying defendant's petition for reargument and reconsideration of the motion. An appeal to this court was dismissed for want of jurisdiction.
On August 27, 1956, defendant's new counsel filed another petition for rehearing of the motion to suppress evidence.Hearing was held on the petition on November 26, 1956, and on January 4, 1957 before Judge Gourley. On February 21, 1957, an order was entered by Judge Miller assigning the disposition of the petition for rehearing to Judge Gourley nunc pro tunc September 21, 1956, with consent of Judge Gourley. It appears from the record that this was done that the matter might be speedily dispatched, as Judge Miller was involved in the trial of two lengthy cases and it would not be convenient for him to handle the petition.
On March 20, 1957, Judge Gourley granted the motion for suppression of the evidence. D.C., 149 F.Supp. 445. This order was not appealable. Carroll v. United States, 1957, 354 U.S. 394, 77 S. Ct. 1332, 1 L. Ed. 2d 1442. On September 3, 1957, the government petitioned for rehearing on the motion. The matter was heard on September 6, 1957, and denied on that date by Judge Gourley who simultaneously entered an order dismissing the indictment for having been returned as a result of presentation to the grand jury of the evidence ruled to have been illegally acquired. The government appealed to this court. We therefore reach the question for decision.
In TCF Film Corp. v. Gourley, 3 Cir., 1957, 240 F.2d 711, 713 this court sitting en banc and speaking through Judge Maris reaffirmed for this circuit the rule "* * * that judges of co-ordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other."*fn1 The rule might be more fundamentally stated that judges should not, if possible, place themselves in a position whereby in rendering impartial judgment on a question they might be required to overrule the decision of a judge of the same court in the same case. Cf. Price v. Greenway, 3 Cir., 1948, 167 F.2d 196.
In deciding the TCF case we refused to follow Dictograph Products Co. v. Sonotone Corp., 2 Cir., 1956, 230 F.2d 131, any further than to recognize that the rule was not absolute and all-embracing and that there are exceptional circumstances which will permit one judge of a district court to overrule a decision by another judge of the same court in the same case. In other words there are occasional situations in which a judge cannot avoid placing himself in a position which may require him to reconsider a point already earlier decided in the same case by another judge of the same court. The TCF case in fact presented that very situation. The crux of the matter, then, is not whether a second judge on reconsideration of a question can or should overrule the first judge but whether he may properly entertain the reconsideration at all.
We thus have implicitly recognized that the rule is one regulating the exercise of discretion in acting rather than one denying power to act at all. Because the TCF case was a mandamus proceeding begun before entry of final judgment on the merits we decided only that the second judge had properly exercised discretion in reconsidering the case. We did not pass on whether the result he reached, which was also a matter of discretion, in permitting the amendment of the complaint was an abuse.
The exceptional circumstances which Judge Gourley found to justify his acting in this case were that Judge Miller was "unavailable" and had assigned the case to him "* * * because of its pressing urgency," and that "* * * none of the matters presented in the hearings held before * * * [Judge Gourley] were presented to or considered by * * * Judge Miller."
TCF Film Corp. v. Gourley, supra, involved a situation where the judge who had first denied a motion to amend and supplement the complaint was unavailable to consider the petition for rehearing by reason of the termination of his temporary assignment to the district in which the case was pending. We pointed out that other exceptional circumstances of unavailability of the first judge would be if he had died or resigned; it was obvious in these ...