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April 2, 1959

UNITED STATES of America, Plaintiff,
Maurice A. WHEELER, Defendant

The opinion of the court was delivered by: MARSH

The defendant, an attorney at law, was convicted under a one-count indictment charging him with income tax evasion in violation of § 145(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 145(b). He moves for a new trial on the following grounds:

(1) The verdict is against the weight of the evidence and was not supported by the evidence.

 On the merits, the evidence was overwhelming, and not denied, that defendant failed to report substantial taxable income for the year 1950. The only defense advanced on the merits was that he did not knowingly and willfully intend to evade the tax. On abundant evidence, the jury found that the defendant willfully filed a false and fraudulent return for that year.

 (2) The court erred (a) in refusing defendant the right to introduce evidence that the government obtained defendant's books and records by fraud, trickery and deceit; (b) in refusing to charge the jury on that issue; and (c) in failing to suppress the evidence for the reason that such was obtained by fraud, trickery and deceit.

 These grounds present procedural problems under Rule 41(e), Fed.R.Crim.P., 18 U.S.C.A., and therefore a brief review of the background is in order.

 After indictment, defendant moved, pursuant to Rule 41(e), to suppress the evidence obtained by the government from its examination of his books, records and files, on the grounds that his rights under the Fifth Amendment of the United States Constitution were violated. *fn1" There exists some doubt that a motion to suppress evidence pursuant to Rule 41(e) may properly include questions involving the Fifth Amendment. Biggs v. United States, 6 Cir., 1957, 246 F.2d 40, but compare In re Fried, 2 Cir., 1947, 161 F.2d 453, 1 A.L.R.2d 996, which involved a preindictment motion. Nonetheless, Judge Miller, an associate of this court, denied the motion holding that defendant's rights had not been violated under either the Fourth or Fifth Amendment. *fn2"

 At the trial, before testimony was given, defendant renewed his motion to suppress the evidence as being obtained in violation of the Fourth and Fifth Amendments. On objection, this motion was denied. We think the ruling was proper for three reasons.

 First, because Rule 41(e) commands that the motion 'shall be made before trial' unless opportunity did not exist or defendant was not aware of the grounds. United States v. Sheba Bracelets, Inc., 2 Cir., 1957, 248 F.2d 134, 139-143. *fn3" The defendant had presented a timely motion and lost after extensive litigation. Thus he was barred from litigating it again on the same evidence at the trial. Judge Miller's decision became the law or controlling rule of the case. Waldron v. United States, 1955, 95 U.S.App.D.C. 66, 219 F.2d 37; United States v. Jennings, D.C.D.C.1956, 19 F.R.D. 311, affirmed 1957, 101 U.S.App.D.C. 198, 247 F.2d 784. In Jennings 19 F.R.D. at page 312, Judge Holtzoff said:

 'The Rule does not permit the Court to rehear or review the matter if a motion had been properly made and disposed of. There is sound reason for this procedure. Its purpose is to prevent the trial on the merits from being diverted to a consideration of tangential issues that can be properly isolated and determined in advance in the interest of efficiency.'

 In Waldron, 219 F.2d at page 41, Judge Prettyman aptly stated:

 'The basic purpose of the rule is to prevent, so far as possible, the delay and attendant confusion resulting from attacks during a trial on the admissibility of illegally seized evidence. * * * Once the court has disposed of a point concerning the admission or exclusion of evidence, litigants must proceed to try the case accordingly.'

 To the same effect, see Nardone v. United States, 1939, 308 U.S. 338, at pages 341-342, 60 S. Ct. 266, at pages 267-268, 84 L. Ed. 307, and Weeks v. United States, 1914, 232 U.S. 383, 395-396, 34 S. Ct. 341, 58 L. Ed. 652.

 It is unlikely that the Rule would have required a hearing before trial if it were contemplated that the same facts should be presented again to the trial judge, or to a jury. In view of current court congestion such time-consuming procedure is to be avoided if consistent with due process. *fn4"

 Second, in the absence of new evidence, and none was offered, a judge should not place himself in a position whereby he might be required to overrule the decision of a judge of the same court in the same case. United States v. Wheeler, 3 Cir., 1958, 256 ...

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